Preston v. Superintendent Graterford SCI

• Citation: 902 F.3d 365
• Decision Date: 05 September 2018
• Docket Number: No. 16-3095,16-3095
• Parties: Damien PRESTON, Appellant v. SUPERINTENDENT GRATERFORD SCI; the Attorney General of the State of Pennsylvania
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

902 F.3d 365

Damien PRESTON, Appellant

v.SUPERINTENDENT GRATERFORD SCI; the Attorney General of the State of Pennsylvania

No. 16-3095

United States Court of Appeals, Third Circuit.

Argued April 18, 2018

Opinion filed: September 5, 2018

Ariana J. Freeman, Esq., Thomas C Gaeta, Esq. [ARGUED], Leigh M. Skipper, Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut St., The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant, Damien Preston

Simran Dhillon, Esq., Max C. Kaufman, Esq. [ARGUED], Nancy Winkelman, Esq., Lawrence S. Krasner. Esq., Carolyn Engel Temin, Esq., Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellees, Graterford SCI and The Attorney General of the State of Pennsylvania

Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges

OPINION

RENDELL, Circuit Judge:

Damien Preston seeks habeas relief based on an alleged violation of his rights under the Confrontation Clause of the United States Constitution. We agree that the use of a witness's prior statements against Preston violated the Confrontation Clause because the witness, Leonard Presley, refused to answer any substantive questions on cross-examination. However, Preston's Confrontation Clause claim is procedurally defaulted.

Preston argues that ineffective assistance of trial counsel ("IATC"), namely, counsel's failure to raise a Confrontation Clause objection at trial, provides cause to excuse the procedural default of the underlying Confrontation Clause claim. Before his IATC claim, which is itself procedurally defaulted, can serve as cause to excuse the procedural default of his Confrontation Clause claim, Preston must surmount two obstacles. First, he must overcome the procedural default of his IATC claim. Second, he must demonstrate that trial counsel's performance was constitutionally ineffective under the two-pronged test established in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find that, under Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the procedural default of his IATC claim is excused. However, because he cannot show that he was prejudiced by trial counsel's failure to raise a Confrontation Clause objection, Preston's IATC claim fails at the second prong of the Strickland analysis. Therefore, we are unable to grant Preston habeas relief, and we will affirm the District Court's order dismissing Preston's habeas petition.

I. BACKGROUND¹

Damien Preston is currently serving a twenty- to forty-year sentence for third degree murder for his role in the 2000 death of Kareem Williams, who was shot in the midst of a physical fight with Preston and his brother Leonard Presley.²

A. Leonard's Trial

In 2001, Leonard was arrested for his role in the shooting and tried before a jury in Pennsylvania state court. At his trial, Leonard took the stand in his own defense. In testimony that was consistent with the statement he gave to police after he was arrested, Leonard explained that, on the day of the shooting, he parked his car on the 1900 block of Dennie Street in Philadelphia. Williams and a woman named Latoya Butler were sitting in front of a house on the same block. Preston and another man named Chris were also standing on the block. Leonard approached Williams and asked to have a word with him. The two men walked a short distance down the street and had a brief conversation about a rumor Leonard had heard about Williams. Williams then walked away and entered an alley off of Dennie Street, where he retrieved a bag and tucked "something shiny" into the waistband of his pants. JA773. According to Leonard, the shiny object "looked like" a gun. Id. Williams told Butler that he would "be back," continued down Dennie Street, and turned the corner onto Wayne Avenue. Leonard followed Williams around the corner onto Wayne Avenue, and the two men began fighting.

At one point during the fight, Williams had his back against the hood of a car parked along Wayne Avenue, with Leonard facing him. According to Leonard, Preston then came up behind him and began swinging at Williams over Leonard's shoulder. Leonard heard a gunshot, turned around, and saw Preston running away. Leonard ran away as well, passing Butler on the corner of Dennie Street and Wayne Avenue. Leonard did not see who fired the shot, but he testified that it came from somewhere behind him. Leonard, Preston, and Williams were the only people involved in the fight. Leonard testified that he had not shot Williams and that Williams could not have shot himself because the shot came from behind Leonard, who was facing Williams. Therefore, Leonard "guess[ed]" his brother had shot Williams. JA776. Leonard was found guilty of third degree murder.

B. Preston's Trial

A year later, Preston was arrested for his role in Williams's death. He was tried before a jury in October 2003 in the Pennsylvania Court of Common Pleas. Preston was represented by counsel at trial.

1. The Commonwealth's Case-in-Chief

The Commonwealth's primary witness at Preston's trial was Latoya Butler. Butler testified that she and Williams were sitting on a porch on the 1900 block of Dennie Street on the day of the shooting. Leonard pulled up in a car and joined Preston and Chris on a nearby porch. Leonard approached Williams and asked to speak with him. Leonard and Williams walked down the street and spoke briefly. Williams returned to Butler's porch looking "upset" and told her that he would "be back." JA522. As Williams walked away, Leonard told him "You better come back with something big because I'm playing with them big boys." JA522. Williams walked down Dennie Street and stopped in an alleyway, where he "picked up something." JA522. He continued down Dennie Street and turned onto Wayne Avenue. Leonard followed Williams onto Wayne Avenue. After a few moments, Preston, followed by Butler, walked down Dennie Avenue and turned the corner onto Wayne Avenue as well.

Butler testified that when she turned the corner onto Wayne Avenue, she saw the three men fighting. Leonard had Williams pinned down on the hood of a parked car, and he and Preston were hitting Williams. According to Butler, Preston backed up "about two steps," so he was standing to the left of Williams. JA524. She testified that "the way [Leonard] had [Williams] pinned down, [Williams's] whole left side was open for [Preston] to shoot him." JA525. Preston stretched out his right arm and aimed "something" at Williams. JA524. Preston's hand and whatever was in it were covered by a sweatshirt. Butler then heard a "big loud pop" and heard Preston ask Williams "You want some more, you want some more?" JA525. Williams fell "flat on his face." JA526. Preston and Leonard fled, passing Butler on the corner of Dennie Street and Wayne Avenue. As Butler approached Williams, he told her "They got me." JA526. Butler accompanied Williams to the hospital, where she gave police a statement that was consistent with her in-court testimony and identified Preston and Leonard in a photo array.

Butler also testified to the pre-existing animus between Williams and the two brothers. According to Butler, Preston and Leonard had sold drugs on the 1900 block of Dennie Street for several years. About four months before the shooting, Williams began selling drugs on the same block. Shortly before the shooting, Preston had confronted Williams and told him he could no longer sell drugs there because he wasn't "from the block." JA520. Preston and Williams had also had at least one physical altercation in the past.

The jury also heard from the medical examiner, whose testimony largely corroborated Butler's. He testified that Williams had been shot in the left buttock area and that the trajectory of the bullet was consistent with a shooter standing on Williams's left side. He also testified that Williams's facial injuries indicated that he had fallen flat on his face after being shot. Although he could not conclude that Williams had been shot at close-range, the medical examiner testified that he had been unable to examine Williams's clothing, which may have contained evidence of a close-range shooting. He also testified that if the muzzle of the weapon had been covered by a sweatshirt, as Butler testified it was, it would have filtered out evidence of a close-range shooting.

Law enforcement officers testified to the physical evidence recovered from the scene. Officers recovered a bullet from the street in front of a parked car on Wayne Avenue. The hood of the parked car was dented, as one would expect if a body had been pressed against it. The Commonwealth also introduced evidence that Preston fled to North Carolina after the shooting and that no gun was recovered from Williams's body.

The Commonwealth then called Leonard as a witness. Leonard asserted his Fifth Amendment privilege against self-incrimination and refused to testify. Leonard was concerned that his testimony would jeopardize the pending appeal of his own criminal conviction. He was granted immunity by the District Attorney's office and was therefore compelled to testify. See Kastigar v. United States , 406 U.S. 441, 458, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ("use and derivative-use immunity is constitutionally sufficient to compel testimony over a claim of the privilege"). Apparently, this did not assuage Leonard's concerns, and he again refused to testify. See JA599 (Leonard replying "No comment. No comment." to the Commonwealth's questions); JA606 ("I'm in a state of appeal. That's why I said no comment, because I'm in the course of my appeal."). The Commonwealth sought to introduce both the statement Leonard had given to police after his arrest and his testimony from his own criminal trial as admissible hearsay under Commonwealth v. Brady , 510 Pa. 123, 507 A.2d 66 (1986).³ Defense counsel said he had "no problem with [Leonard] being Bradyized" using his police...