Branch v. Sweeney

• Citation: 758 F.3d 226
• Decision Date: 09 July 2014
• Docket Number: No. 13–1657.,13–1657.
• Parties: Horace BRANCH, Appellant v. Cindy SWEENEY, Associate Administrator; The Attorney General of the State of New Jersey.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

758 F.3d 226

Horace BRANCH, Appellant

v.Cindy SWEENEY, Associate Administrator; The Attorney General of the State of New Jersey.

No. 13–1657.

United States Court of Appeals,Third Circuit.

Argued March 24, 2014.

Filed: July 9, 2014.

Sean E. Andrussier, Phillip Barber, Melissa Boatner, Adam Garmezy, Elyse Lyons, (argued), Duke University School of Law, Durham, NC, Attorneys for Appellant.

Carolyn A. Murray, Acting Essex County Prosecutor, Sara A. Friedman, (argued), Essex County Office of Prosecutor, Newark, NJ, Attorneys for Appellees.

Before: FUENTES, GREENBERG, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

What is more believable: that an experienced criminal would risk his life by attempting to rob armed drug dealers in close quarters, or that while unarmed he would go into a drug den to demand a refund of $50 that he spent at the den for cocaine that he discovered was fake? And once inside, is it more likely that, while taking open gun fire from behind, he would turn around to shoot back rather than flee, or that he would dive at a weapon about to be discharged at him? The jury in the criminal trial of the allegedly defrauded habeas corpus petitioner, Horace Branch, the appellant in this case, struggled with these questions. It sent a stream of notes to the trial court, prompting the court to respond at one point that it “can give you no more than what you heard.” J.A. 330. In the end, the jury returned a mixed verdict, crediting the part of the prosecution's case charging that Branch shot the victim after entering the premises, but not the part charging Branch with robbing some of the den's occupants at the time of the shooting.

We are not concerned on this appeal from the denial of a petition for habeas corpus with whether the evidence supported the verdict to the extent that the jury found Branch guilty. But we are concerned with the jury's apparent struggle in reaching its verdict, as well as the questionable theory of the prosecution's case and the questionable character of its shaky witnesses, as these factors are relevant to the question we face today: whether the state courts that reviewed Branch's petition for post-conviction relief (“PCR”) unreasonably applied federal law in holding that his trial counsel was not constitutionally ineffective for failing to call two potentially exculpatory witnesses. In particular, Branch anticipated that these witnesses, in testimony consistent with their written sworn pretrial statements, which he claims he passed on to his counsel before the trial, would have corroborated his account of the events at the time of the shooting and alleged robberies. Branch submitted these witnesses' sworn statements to the state PCR court and asked for an evidentiary hearing on his counsel's effectiveness. ¹ The PCR court rejected his request and denied Branch relief. Branch appealed, and the Appellate Division of the New Jersey Superior Court affirmed the PCR court's order denying Branch relief with respect to the ineffective assistance of counsel claim before us.

Branch subsequently filed a petition for habeas corpus in the District Court pursuant to 28 U.S.C. § 2254. Without holding an evidentiary hearing, the Court adopted the PCR court's reasoning and, by order of February 11, 2013, denied Branch's petition. In reaching its conclusion, the Court indicated that the proposed witnesses' testimony was “cumulative” and that Branch's trial counsel could have based his decision not to call the witnesses on his trial strategy.

After examining the state-court record, we cannot find any justification for Branch's trial counsel's failure to call the two potential witnesses to testify at Branch's trial. If Branch's counsel had called those witnesses and they adhered to their pretrial written statements, there is a reasonable probability that the relatively balanced scale of evidence at Branch's trial would not have been tilted in the State's favor. The state courts' conclusions that Branch's counsel's representation was not deficient and that his counsel's failure to call the witnesses did not prejudice Branch were unreasonable applications of federal law, and the District Court therefore was required to review Branch's petition de novo. That review, in turn, would have required the Court to hold a hearing to ascertain trial counsel's reasons for not calling the potential witnesses. Because the Court did not take these steps, it abused its discretion, and therefore we will vacate the order of February 11, 2013, denying the petition for habeas corpus and will remand the case to the District Court for further proceedings. We specifically direct the Court to hold an evidentiary hearing to ascertain whether Branch's counsel provided him with ineffective assistance of counsel because he did not call these potential witnesses to testify at trial.

II. FACTUAL BACKGROUND

On November 4, 1993, Branch entered the apartment building at 260 Prince Street in Newark, New Jersey-a premises infested with a criminal element including drug dealers and addicts. At Branch's criminal trial the parties sharply disputed the reason why Branch went to the premises and what happened once he was inside. It is undisputed, however, that Branch had some role in the fatal shooting of Randolph Mosley in the building. It is also undisputed that when the police arrested Branch on the day following the shooting he had possession of the weapon that had been used to kill Mosley.

Branch testified at the criminal trial that he went to 260 Prince Street to retrieve $50 that he had paid for “beat,” or fake, cocaine at that premises. He said that he obtained the drugs from Phillip Murphy, who was outside of the building serving as a lookout for drug dealers inside the building. Murphy multi-tasked as he also procured drugs from a dealer inside when a purchaser arrived. Branch determined that the dealer supplying his cocaine gave him a product that was partially baking soda and he wanted a refund of the purchase price. Branch, though he claims to have been unarmed, insisted that he and Murphy go inside the building to get his money back but he soon found out that in the narcotics retail market all sales are final. Upon entering, Branch saw eight to ten people, including Kenneth Dortch, Michael Davis, and Patricia Lee, standing against the walls.

Branch testified that, addressing everyone in the hallway, he asked who had supplied the beat cocaine. Branch contended that Lee responded by pulling out a gun and telling Branch to “get the fuck out of here.” J.A. 263. Branch—a slender man of 5'5?—rushed the taller Lee to avoid getting shot. Though someone tried to intercept Branch from behind, he managed to get his hands on Lee's wrist. In the ensuing scramble Lee and Branch fell to the floor and, according to Branch, as they fell Lee's gun discharged firing bullets that struck Mosley. Branch claims that when he was on the floor, he overheard Lee remarking that she thought she had shot Mosley. In a critical assertion, he states that Lee dropped her gun at a place within his reach, so he grabbed it and ran out of the building. But Lee obtained a second gun and joined a group of four individuals that chased him down the street. Branch, however, eventually eluded his pursuers and escaped.

Branch called two witnesses who confirmed his account of the events. First, Davis, who was at 260 Prince Street when Branch sought his refund, indirectly corroborated Branch's reason for going inside the building as Davis testified that he, too, had purchased bad cocaine from Lee. Moreover, Davis heard Branch complain to Lee about the “beat” drugs and then saw Lee pull out a gun and start “tussling” with Branch. Davis testified that Lee's gun went off two or three times, and he then ran out of the building.

Branch also called Keith Barnhill, Mosley's childhood friend, as a witness. Although Barnhill was not present at the time of the shooting, he testified that he later had a conversation with Lee in which she largely confirmed Branch's description of Mosley's shooting. Barnhill testified that Lee told him that Branch complained to her about the sale of bad cocaine, that she pulled a gun on him, and that “they got into a struggle.” He also testified that Lee “was saying that she thinks she might have shot [Mosley].” J.A. 246–47.

The State called several eyewitnesses who contradicted Branch's account. The collective thrust of their testimony was that Branch went to the building to rob its occupants and ended up shooting and killing Mosley. Murphy stated that Branch came to 260 Prince Street to purchase cocaine and that he, Murphy, went into the building to obtain the cocaine. At that time, instead of paying him for the cocaine, Branch took out a gun, pointed it at Murphy, and told him to lead the way inside. As he entered, Branch exclaimed, “all-right, mother-fuckers, this is a stick-up.” J.A. 72. Everyone then followed his command to put their hands up against the wall. According to Murphy, Branch ordered him to get his “stash,” thus giving Murphy the opportunity to run upstairs to his apartment. When Murphy got upstairs, he heard gunshots and came down to see Mosley bleeding on the ground. Following the incident, Murphy told one of the investigators that Lee openly wondered if she had shot Mosley.

Dortch supplied additional details. Though his testimony is confusing, we understand that he claimed that he was outside of 260 Prince Street when Branch arrived, and that Branch robbed him of money when he was going inside and took cocaine from Murphy. Dortch testified that when Branch entered the building, he robbed Lee but overlooked her “little” gun (“maybe a .22 or .25[mm]”), J.A. 129–30, which she took out to shoot him; Branch shot back. Like Murphy, Dortch also conceded that Lee originally thought that she had shot Mosley, quoting her saying, “oh, my God, I think I got [Mosley].” J.A....