Real v. Shannon

• Decision Date: 03 March 2010
• Docket Number: No. 07-4532.,07-4532.
• Citation: 600 F.3d 302
• Parties: Torrey B. REAL, Appellant v. Superintendent SHANNON; The Attorney General of the State of Pennsylvania; First Deputy Prosecutor York County District Attorney.
• Court: U.S. Court of Appeals — Third Circuit

600 F.3d 302

Torrey B. REAL, Appellant v. Superintendent SHANNON; The Attorney General of the State of Pennsylvania; First Deputy Prosecutor York County District Attorney.

No. 07-4532.

United States Court of Appeals, Third Circuit.

Argued January 25, 2010.

Filed March 3, 2010.

COPYRIGHT MATERIAL OMITTED

Diana Stavroulakis, Esq., Argued, Pittsburgh, PA, for Appellant.

Jeffrey F. Boyles, Esq., Argued, David J. Maisch, Esq., Office of District Attorney of York County, York, PA, for Appellees.

Before FUENTES and FISHER, Circuit Judges, and DIAMOND,^* District Judge.

OPINION OF THE COURT

DIAMOND, District Judge.

Torrey Real appeals from the District Court's denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. We granted a certificate of appealability to consider whether Real's trial counsel was ineffective. For the reasons that follow, we affirm.

I.

The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

On February 4, 1999, the Commonwealth of Pennsylvania charged Appellant with rape, statutory sexual assault, aggravated indecent assault, and corruption of a minor, alleging that Real attacked a twelve-year-old girl in January 1999. On March 18, 1999, Real was also charged with rape and corruption of a minor for attacking a fifteen-year-old girl "on or about December 1996." The victims in these prosecutions were stepsisters. The two cases were consolidated, and trial was scheduled for May 2000 in the York County Common Pleas Court.

In a letter dated December 23, 1999, Real's trial counsel notified the prosecutor and the court that he intended to present military records to establish an alibi for Real with respect to the 1996 rape. See Pa. R.Crim. P. 567 ("A defendant who intends to offer the defense of alibi at trial shall file with the clerk of courts ... a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice ... on the attorney for the Commonwealth.").

At trial, the 1996 victim ("B.B.") testified that although she was not certain, she believed that Real assaulted her sometime between November and December 1996. Counsel did not object to this testimony, even though it was arguably inconsistent with the criminal information charging Real, which stated that the attack occurred "on or about December 1996." Rather, defense counsel sought to establish that: (1) both victims had colluded to make false charges against Real; and (2) Real had an alibi—military service—for most of November and December 1996. Accordingly, counsel vigorously cross-examined B.B., suggesting that her inability to remember the date of the assault was not credible. Counsel also presented records showing that Real traveled to South Carolina on November 18, 1996 to begin U.S. Army service and did not return to York until February 1997. Real testified to these same facts.

In their closings, the prosecutor and defense counsel sought to characterize the evidence to their advantage. The prosecutor argued that in light of B.B.'s testimony that the rape might have occurred in November, Real's alibi defense—which covered the period beginning November 18th—was incomplete. Defense counsel argued that Real could not have attacked B.B. because he was performing military service. Counsel also told that jury that B.B. was not credible, especially because she could not recall the date and circumstances of the attack.

The trial court later charged the jury that

in regards to B.B., her testimony was she believed the rape occurred during the period November, December 1996, although she was not certain of the exact date and, of course, that whole issue as to when it occurred, if you determine that it did occur, and the alibi defense. All of that you will have to reconcile and measure.

But the point here is that you are not bound by any particular or specific date. It is not an essential element of the crime or crimes charged. You may find the Defendant guilty if you are satisfied beyond a reasonable doubt that he committed the crime charged even though you're not satisfied that he committed it on a particular day or at the particular time alleged in the charging documents.

(App. at 87.) Trial counsel did not object to these instructions.

On May 10, 2000, the jury returned a guilty verdict on all but one charge: corruption of a minor in connection with the 1996 attack. On June 19, 2000, the trial court sentenced Real to an aggregate term of ten to twenty years imprisonment. The Pennsylvania Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Real, 792 A.2d 1286 (Pa.Super.2001), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

On November 28, 2004, Real filed a timely pro se petition in state court under the Post Conviction Relief Act. 42 Pa. Cons.Stat. § 9541. The PCRA Court subsequently appointed counsel, who contended, inter alia, that trial counsel was ineffective for failing to object to: (1) B.B.'s testimony that she was raped in November or December 1996, even though the information stated that the rape occurred "on or about December 1996"; and (2) the trial court's alibi instruction. Following an evidentiary hearing, the PCRA Court denied relief on June 6, 2005, and Real appealed to the Superior Court.

On appeal, Real reiterated his contention that trial counsel ineffectively failed to raise the purported variance between the criminal information and B.B.'s testimony. Relying on Commonwealth v. Devlin, the Superior Court affirmed. 460 Pa. 508, 333 A.2d 888 (1975). In Devlin, the Pennsylvania Supreme Court held that the Commonwealth is required to prove the date on which a crime was committed only to a "reasonable certainty," even when the defendant presents an alibi defense. Id. at 891. The Devlin Court did not create a single test for determining when a variance as to the date of the charged offense might be impermissible, noting instead that "any leeway permissible must vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused." Id. at 892. Applying this test to Real's case, the Superior Court balanced the serious nature of the crimes charged, B.B.'s age, and the time that had passed between the attack and B.B.'s testimony against Real's due process rights, concluding that "the variance between the allegations in the criminal information and the proof adduced during trial was reasonable...." (App. at 38.) Accordingly, the Court ruled that trial counsel was not ineffective for failing to raise a meritless variance objection to B.B.'s testimony.

The Court similarly rejected Real's contentions respecting trial counsel's failure to object to the trial court's instructions:

The record supports the PCRA court's determination that the trial court properly advised the jury to consider Real's alibi defense along with all of the other evidence in determining whether the Commonwealth satisfied its burden of proving beyond a reasonable doubt that Real committed the offenses charged. Thus, when read in its entirety, the court's jury instruction clearly, adequately, and accurately reflected the law. As such, Real's ineffective assistance of counsel claim lacks arguable merit.

(Id. at 39-40.) Rejecting Real's remaining claims on April 19, 2006, the Superior Court affirmed the denial of PCRA relief.

On April 20, 2007, Real, again acting pro se, sought habeas corpus relief in the District Court, alleging that his trial counsel was ineffective for failing to: (1) seek a severance with respect to the 1996 and 1999 attacks; (2) object to the purported variance between B.B.'s testimony and the criminal information; and (3) object to the trial court's jury instruction. 28 U.S.C. § 2254.

On October 29, 2007, the District Court denied relief, concluding that the Superior Court's adjudication of Real's claims did not "result in a decision that was contrary to, or involve an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d). The District Court also found no basis for the issuance of a certificate of appealability.

On December 3, 2007, Real filed a Notice of Appeal, along with an Application for a Certificate of Appealability. On February 7, 2008, we granted Real a certificate of appealability to consider whether trial counsel was ineffective for failing to object to: (1) the variance between B.B.'s testimony and the criminal information; and (2) the trial court's instruction regarding Real's alibi defense.

III.

Because the District Court denied Real's petition without conducting an evidentiary hearing, our review of the District Court's decision is plenary. Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir.2005) (citation omitted). Under the Antiterrorism and Effective Death Penalty Act of 1996, we apply the same standards as the District Court:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002).

Real does not challenge the state courts' factual determinations. Rather, he contends that the Superior Court's rejection of his claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," and that he is thus "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2254(...