Sistrunk v. Vaughn

• Decision Date: 19 September 1996
• Docket Number: No. 95-1848,95-1848
• Citation: 96 F.3d 666
• Parties: Edward SISTRUNK v. Donald VAUGHN, Superintendent, SCI Graterford; Attorney General of the Commonwealth of Pennsylvania; and the District Attorney of Philadelphia County, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 666

96 F.3d 666

Edward SISTRUNK v. Donald VAUGHN, Superintendent, SCI Graterford; Attorney General of the Commonwealth of Pennsylvania; and the District Attorney of Philadelphia County, Appellants.

No. 95-1848.

United States Court of Appeals Third Circuit.

Argued June 11, 1996.

Decided Sept. 19, 1996.

Peter Goldberger (argued), Pamela A. Wilk, Law Office of Peter Goldberger, Ardmore, PA, for Appellee.

Lynne Abraham, District Attorney, Arnold H. Gordon, First Assistant District Attorney, Ronald Eisenberg, Deputy District Attorney, Donna G. Zucker (argued), Chief, Federal Litigation Office of the District Attorney, Philadelphia, PA, for Appellants.

Before: STAPLETON, GREENBERG and ALDISERT, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Respondent appeals from the grant of habeas corpus relief to Petitioner Edward Sistrunk, a state prisoner. Sistrunk's petition alleges three grounds for relief. First, he asserts that the prosecutor at his trial exercised peremptory challenges to exclude black venirepersons from the jury in violation of the Equal Protection Clause. Second, he contends that he was denied effective assistance of counsel in violation of the Sixth Amendment because his appellate counsel failed to press his Equal Protection claim on direct appeal. Finally, Sistrunk insists that other misconduct of the prosecutor at his trial deprived him of his liberty without due process of law. We will reverse the judgment granting relief.

I.

In 1971, Sistrunk was convicted for participating in the robbery and arson of a furniture store, during which one employee was murdered and others assaulted. On state collateral review, he was awarded a new trial due to ineffective assistance of trial counsel. In 1981, he was tried again on the same charges. During jury selection, Sistrunk's new defense counsel objected to the prosecutor's use of peremptory challenges to remove black venirepersons. The court overruled the objections in accordance with the then-prevailing law of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Under Swain, the defendant, in order to show a violation of the Equal Protection Clause, was required to show a pattern and practice of racial discrimination in jury selection across multiple prosecutions, evidence that was not tendered by Sistrunk during his second trial. As a result, petitioner, who is black, went to trial with an all-white jury. He was again convicted.

On direct appeal, the defendant's newly appointed appellate counsel did not pursue the jury selection, equal protection claim despite a request from petitioner that it be pursued. In April 1985, after the appellate brief had been filed but before oral argument, the United States Supreme Court granted certiorari in Batson v. Kentucky, 471 U.S. 1052, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985). Petitioner's conviction was affirmed by the Pennsylvania Superior Court. He then sought discretionary review by the Pennsylvania Supreme Court. While his petition for review was pending, the U.S. Supreme Court decided Batson, holding that the Equal Protection Clause is violated whenever a state prosecutor exercises a peremptory challenge to exclude a venireperson from the jury because of his or her race. See 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986). A year after deciding Batson, but before the Pennsylvania Supreme Court had ruled on petitioner's application for review, the United States Supreme Court decided Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), which applied Batson retroactively to all cases pending on direct review at the time Batson was announced. Accordingly, if petitioner's jury selection claim had been pressed on direct appeal, and the state supreme court had granted review, Batson would have been governing precedent.

The Pennsylvania Supreme Court denied review, and Sistrunk filed a Pennsylvania Post-Conviction Relief Act (PCRA) petition raising two issues: whether he was entitled to direct relief under Batson, and whether he was denied effective assistance of appellate counsel when his court-appointed attorney failed to pursue the jury selection issue on direct appeal. The PCRA court held a hearing in 1992, during which both the petitioner and the prosecutor testified, but not the petitioner's appellate counsel. With respect to the first claim, the court held that petitioner was not entitled to relief under Batson because the issue had not been urged on appeal. The court nonetheless found that, even if Batson applied, the prosecutor had "presented credible and racially neutral reasons for each peremptory challenge she exercised," and that she "did not exercise peremptory challenges in a purposefully racially discriminatory manner." Commonwealth v. Sistrunk, Feb. Term, 1971, No. 0794-0820, slip op. at 9-10 (Pa.C.P. Sept. 13, 1993). With respect to the second issue, the court held that performance of Sistrunk's appellate counsel was not ineffective because she was not required to predict future developments in the law.

On appeal from the adverse judgment in the PCRA proceeding, the Superior Court held that because the adverse determination of the direct Batson claim by the trial court had not been appealed, that claim had been "previously litigated" within the meaning of the PCRA, and could not be a basis for relief in a PCRA proceeding. ¹ See Commonwealth v. Sistrunk, 436 Pa.Super. 648, 647 A.2d 267 (1994) (table). On the ineffective assistance claim, the court applied Pennsylvania's three-pronged ineffective assistance analysis. The first prong is a threshold test requiring the court to determine if the issue underlying the ineffective assistance claim has arguable merit. Only if the underlying claim has merit does a Pennsylvania court go on to assess whether counsel's performance was constitutionally ineffective and whether defendant was prejudiced thereby, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802, 806 (1985). The Superior Court held that the underlying Batson issue was meritless, and counsel's performance could not, therefore, be deemed ineffective. In reaching this conclusion, the Superior Court first found that Batson applied to petitioner's ineffective assistance claim, and that he had established a prima facie case under Batson. The court then deferred to the PCRA trial court's findings that the prosecutor had advanced credible and racially neutral reasons for exercising each of her peremptory challenges and that the prosecutor did not exercise her peremptories in a purposefully discriminatory manner. The Superior Court did not determine whether appellate counsel's conduct met professional standards of reasonableness. The state Supreme Court refused to grant review, see Commonwealth v. Sistrunk, 540 Pa. 598, 655 A.2d 987 (1995), thus exhausting Sistrunk's state remedies.

Sistrunk then pursued the present federal habeas corpus petition. Without holding a hearing, the magistrate judge issued a report and recommendation concluding that the prosecutor's use of peremptory challenges violated Batson and that Sistrunk's appellate counsel had rendered constitutionally ineffective assistance. The magistrate judge acknowledged that 28 U.S.C. § 2254 requires a federal habeas court to defer to state court findings of fact, but nonetheless held that a review of the record did not fairly support the state court's findings of fact regarding the motivation behind the state's peremptory challenges. Relying on 28 U.S.C. § 2254(d)(8), the magistrate judge substituted its own fact-finding for that of the PCRA court. ² The magistrate judge did not address the prosecutorial misconduct claim. The district court adopted the magistrate judge's report and recommendation, and ordered that petitioner be retried or released. ³

II.

To establish ineffective assistance of counsel, a defendant must show both that: (1) counsel's representation fell below an objective standard of "reasonableness under prevailing professional norms;" and (2) the defendant suffered prejudice as a result--that is, there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 668, 694, 104 S.Ct. at 2052, 2068. In reviewing counsel's performance, we "must be highly deferential." Id. at 689, 104 S.Ct. at 2065. We "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. at 2066. Moreover, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065 (citation omitted).

In the context of this case, two additional principles are relevant to our inquiry into the reasonableness of counsel's conduct. First, in a criminal defense, certain litigation decisions are considered "fundamental" and are for the client to make. These include decisions on whether to plead guilty, whether to testify, and whether to take an appeal. After consultation with the client, all other decisions fall within the professional responsibility of counsel. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1433 (3d Cir.1996). In particular, it is a well established principle that counsel decides which issues to pursue on appeal, see Jones, 463 U.S. at 751-52, 103 S.Ct. at 3312-13, and there is no duty to raise every possible claim. See id. at 751, 103 S.Ct. at 3312-13. An exercise of professional judgment is required. Appealing losing issues "runs...