# CHAMBARLAIN v. CAPOZZA

> District Court, E.D. Pennsylvania · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10399211

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399211

## How later opinions describe it (automated extraction)

- holding that claim that PCRA counsel was ineffective may qualify as cause to excuse the procedural default of an ineffective assistance of trial counsel claim if, inter alia, the underlying claim for ineffective assistance of trial counsel is substantial
- explaining that where a state court decision does not cite Federal law, the decision will not be found to be contrary to Federal law “so long as neither the reasoning nor the result of the state-court decision contradicts [that law]”
- noting that counsel cannot be ineffective for failing to raise a meritless claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTOINE CHAMBARLAIN : CIVIL ACTION
:
v. :
:
SUPERINTENDENT MARK CAPOZZA, ET :
AL. : NO. 17-4680

MEMORANDUM
Padova, J. June 30, 2020

Petitioner Antoine Chambarlain has filed a counseled petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the following reasons, and after careful consideration of the
Report and Recommendation prepared by United States Magistrate Judge David R. Strawbridge
(“R&R”) and Petitioner’s Objections thereto, we overrule the Objections, adopt the Report and
Recommendation, and deny the petition in part and dismiss it in part.
I. BACKGROUND
On April 29, 2010, a jury in the Philadelphia Court of Common Pleas convicted Petitioner
of first-degree murder, criminal conspiracy, and possession of an instrument of crime, in
connection with a drive-by shooting that occurred in the late afternoon of July 24, 2005.
Petitioner was sentenced to life imprisonment. Petitioner completed direct and Post Conviction
Relief Act (“PCRA”) appeals in the state court system and, on October 19, 2017, he filed the
instant § 2254 habeas action. In his § 2254 Petition, Petitioner asserts five grounds for relief:1
(1) the trial court erred in permitting testimony about his post-Miranda silence, (2) his trial counsel
was ineffective for failing to present alibi evidence, (3) his rights under the Confrontation Clause

1 We have reordered Petitioner’s claims for relief from that set forth in his § 2254 Petition
to reflect the order in which the Magistrate Judge addressed the claims and Petitioner presents his
objections.
of the Sixth Amendment of the United States Constitution were violated at trial when the contents
of a note written by a non-testifying witness were introduced into evidence,2 (4) his appellate
counsel was ineffective for failing to raise his Confrontation Clause claim on direct appeal, and
(5) his trial counsel was ineffective for failing to object when the prosecutor improperly vouched

for the credibility of a cooperating witness/co-Defendant.
In a thorough and well-reasoned R&R, the Magistrate Judge has recommended that we
deny the § 2254 Petition in part and dismiss it in part. Specifically, he recommends that
Petitioner’s first, second, and third grounds for relief were procedurally defaulted and should be
dismissed, and that we should deny Petitioner’s fourth and fifth grounds for relief on the merits
because the state court did not unreasonably apply the ineffective assistance of counsel standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), or any other clearly established Federal
law. Petitioner has filed Objections to the Magistrate Judge’s recommendations regarding all five
claims. When a petitioner objects to an R&R, we must “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is

made” and “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
II. DISCUSSION
A. Post-Miranda Silence
Petitioner’s first Objection concerns the Magistrate Judge’s recommendation that we
dismiss as procedurally defaulted Petitioner’s claim that his right against self-incrimination was
violated when the prosecution elicited testimony concerning his post-Miranda silence and the trial

2 The Confrontation Clause of the Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. Const., amend. VI.
court denied a motion for a mistrial on that basis.3 Before bringing a claim in a § 2254 petition,
“a state prisoner must exhaust available state remedies” so as to provide “the State the opportunity
to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese,
541 U.S. 27, 29 (2004) (citing 28 U.S.C. § 2254(b)(1)) (quotation omitted). This means that “the

prisoner must ‘fairly present’ his claim in each appropriate state court . . . , thereby alerting that
court to the federal nature of the claim.” Id. (quoting Duncan v. Henry, 513 U.S. 364, 365-66
(1995)) (additional citation omitted). “The failure to ‘fairly present’ federal claims in state court
[ordinarily] bars the consideration of those claims in federal court by means of habeas corpus
because they have been procedurally defaulted.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir.
2002) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). A petitioner’s procedural default
will only be excused if he “‘can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.’” Id. at 409 n.5 (quoting Coleman, 501 U.S. at 750).
The Magistrate Judge recommends that Petitioner failed to exhaust this claim of trial court

error because he did not raise it on direct appeal or during PCRA proceedings and only argued in
the PCRA proceedings that direct appellate counsel was ineffective in failing to raise the claim.

3 This claim concerns the testimony of a police detective, who first testified at trial that he
gave Petitioner his Miranda warnings and then testified: “He agreed to speak to me. He refus[ed]
to --.” (N.T. 4/26/10 at 20.) Petitioner’s trial counsel immediately objected, cutting off the
detective mid-sentence and arguing at sidebar that the prosecution had impermissibly elicited
testimony that Petitioner had refused to give a written statement. (Id. at 20-21.) Counsel moved
for a mistrial, but the court denied that motion. (Id. at 20, 23.) The prosecution went on to elicit
testimony from the detective about the oral statement that Petitioner gave to him. (Id. at 23-24,
27; see also id. at 26-27 (clarifying that Petitioner agreed to speak with the detective after receiving
Miranda warnings).) Thus, while Petitioner argues in his § 2254 Petition that “the
Commonwealth elicited testimony that [he] refused to give a statement,” it appears that the facts
only arguably support an argument that the detective suggested that Petitioner refused to give a
written statement. (§ 2254 Pet’n at 10; see also Pet’r’s Objs. at 8 (stating that the “[d]etective . .
. told the jury that [Petitioner] refused to make a statement”).)
Petitioner explicitly concedes in his § 2254 Petition that “[n]either appellate nor post-conviction
counsel raised this issue during state proceedings.” (§ 2254 Pet’n at 10.) In his Objections,
Petitioner appears to argue that his failure to exhaust and the resulting procedural default should
be excused because he can demonstrate “cause for the default and actual prejudice as a result of

the alleged violation of federal law.” Coleman, 501 U.S. at 750. However, he did not assert
cause and actual prejudice as an exception to his procedural default in his arguments to the
Magistrate Judge and, thus, we will not address those arguments here. See E.D. Pa. Local Civil
Rule 72.1(IV)(c) (“All issues and evidence shall be presented to the magistrate judges, and unless
the interest of justice requires it, new issues and evidence shall not be raised after the filing of the
Magistrate Judge’s Report and Recommendation if they could have been presented to the
magistrate judge.”); Ramos v. Kyler, Civ. A. No. 03-2051, 2004 WL 828363, at *4 (E.D. Pa. Apr.
12, 2004) (stating that the Third Circuit has not addressed “how to properly treat an issue raised
anew in a habeas petitioner’s objections to a magistrate judge’s report,” but that “[t]he majority of
district courts in our circuit, as well as other circuit courts, that have addressed this issue have

concluded that such issues are not properly before the court, and thus are not to be addressed”
(citations omitted)).
Accordingly, we, like the Magistrate Judge, conclude that Petitioner’s claim that his right
against self-incrimination was violated is procedurally defaulted because he did not present this
claim to the state courts. We therefore overrule Petitioner’s Objection to this aspect of the
Magistrate Judge’s R&R.
B. Alibi Evidence
In his second Objection, Petitioner objects to the Magistrate Judge’s recommendation that
we dismiss as procedurally defaulted his claim of ineffective assistance of trial counsel for failing
to present alibi evidence. Specifically, he objects to the Magistrate Judge’s recommendation that
his ineffectiveness claim is not “substantial,” such that it might be excused from procedural default
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and also objects that the Magistrate Judge made
this recommendation without holding an evidentiary hearing. Id. at 14 (holding that claim that

PCRA counsel was ineffective may qualify as cause to excuse the procedural default of an
ineffective assistance of trial counsel claim if, inter alia, the underlying claim for ineffective
assistance of trial counsel is substantial). In order to prove that a claim is substantial, the
petitioner “must demonstrate that the claim has some merit.” Id. (citation omitted).
In an attempt to establish a meritorious claim of trial counsel ineffectiveness for failing to
offer an alibi defense, Petitioner submits an affidavit from his purported alibi witness, Mr. Richard
Pennock, who is Petitioner’s uncle. Mr. Pennock states that, if he had been called to testify at
trial, he would have said that Petitioner was with him at his residence on the day of the shooting
and only left for one short period of time at 9:00 p.m., when Petitioner went to get Chinese food.
(See Pennock Aff., Docket No. 5.) The Magistrate Judge recommends that Petitioner’s claim of

trial counsel ineffectiveness for failing to call Mr. Pennock is not substantial because the trial
transcript not only makes clear that trial counsel considered Mr. Pennock’s account of events on
the day of the murder but also reflects counsel’s assessment that there were “numerous
inconsistencies” between Mr. Pennock’s account and Petitioner’s statement to police. (N.T.
4/26/10 at 9-10.) Furthermore, the Magistrate Judge notes, the Commonwealth represented at
trial that, if Mr. Pennock’s account was introduced, the prosecution was prepared to introduce
evidence that Mr. Pennock was “agitated and uncooperative” when detectives interviewed him.
(Id. at 9.) Observing that Strickland requires that the court “presum[e] that counsel’s conduct
falls within the wide range of reasonable professional assistance,” 466 U.S. at 689, the Magistrate
Judge recommends that Petitioner has failed to overcome that presumption, because the record
supports a conclusion that trial counsel’s decision not to introduce the alibi defense may well have
been a strategic decision based on the inconsistencies between Petitioner’s and Mr. Pennock’s
statements, as well as a concern about Mr. Pennock’s demeanor. See Strickland, 466 U.S. at 689

(“Because of the difficulties inherent in . . . evaluat[ing whether counsel’s conduct was reasonable],
a court 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.” (citation
omitted)).
Petitioner now argues that the Magistrate Judge should not have presumed that trial
counsel’s decision not to present Mr. Pennock was strategic, and that the Magistrate Judge should
have held an evidentiary hearing to allow evidence as to counsel’s strategy. However, as the
Magistrate Judge correctly noted, the court is entitled to presume a sound trial strategy, and it is
Petitioner’s burden to show that the strategy was not sound. Thomas v. Varner, 428 F.3d 491,

499 (3d Cir. 2005) (“To overcome the Strickland presumption that, under the circumstances, a
challenged action might be considered sound trial strategy, a habeas petitioner must show either
that: (1) the suggested strategy (even if sound) was not in fact motivating counsel or, (2) that the
actions could never be considered part of a sound strategy.”) Here, on de novo review, we agree
with the Magistrate Judge that Petitioner has not met that burden.
Moreover, while Petitioner suggests that his ability to meet that burden was hampered by
the Magistrate Judge’s failure to hold an evidentiary hearing, he neglects to acknowledge that
federal courts have limited authority to conduct evidentiary hearings on habeas review. Under
the habeas statute, where an applicant has “failed to develop the factual basis of a claim in State
court proceedings,” we are not permitted to hold a hearing unless the Petitioner shows, inter alia,
that the claim relies on “a new rule of constitutional law, made retroactive to cases on collateral
review,” or a “factual predicate that could not have been previously discovered through the
exercise of due diligence.” 28 U.S.C. § 2254(e)(2); see also Williams v. Taylor, 529 U.S. 420,

437 (2000) (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state proceedings.”) Petitioner has not even
acknowledged this standard, much less shown that he has satisfied it.
Finally, even assuming arguendo that the Magistrate Judge was authorized to hold a
hearing under § 2254(e)(2), “the decision to grant such a hearing rests in the [court’s] discretion”
and, in exercising that discretion, the court is to consider “whether the petition presents a prima
facie showing which, if proven, would enable the petitioner to prevail on the merits of the asserted
claim.” Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010) (quotation and citations omitted).
Here, Petitioner argues only that he would testify at an evidentiary hearing that, he has “maintained
since prior to his arrest that he was with his Uncle . . . at the time of the homicide” and that he told

this to his trial counsel. (§ 2254 Mem. at 42; Pet’r’s Objs. at 9-10.) This proposed testimony is
irrelevant to the central issue of whether Petitioner’s ineffective assistance of trial counsel claim
is substantial, as it has no bearing on the Magistrate Judge’s recommendation that the claim is not
substantial because counsel had a sound strategic reason not to pursue an alibi defense at trial.
Moreover, as the Magistrate Judge correctly observed, the trial transcript makes clear that trial
counsel considered introducing Mr. Pennock’s account at trial and opted not to do so for reasons
that are apparent from the transcript itself. (See N.T. 4/26/10 at 9-10.) Accordingly, we overrule
Petitioner’s objection to the Magistrate Judge’s failure to hold an evidentiary hearing, as well as
his objection to the Magistrate Judge’s recommendation that the ineffectiveness claim is
procedurally defaulted and does not present a substantial issue of trial counsel ineffectiveness such
that the procedural default could be excused pursuant to Martinez.
C. Confrontation Clause
In his third and fourth Objections, Petitioner objects to the Magistrate Judge’s

recommendations concerning his two Confrontation Clause claims, the first of which argues that
his Confrontation Clause rights were violated and the second of which argues that his direct
appellate counsel was ineffective in failing to raise his Confrontation Clause claim. Both of these
claims involve the prosecution’s use at trial of a handwritten note that an individual named Victor
Batts gave to a police officer at the scene of the drive-by shooting shortly after the shooting
occurred. (See N.T. 4/21/10 at 46, 56-57.) In the note, Mr. Batts wrote “2005 Chrysler wagon
dark blue, PA tag 0130.” (Id.) The receiving officer spoke with Mr. Batts and then relayed the
information in the note over the police radio. (Id. at 46-47.) The car identified in the note was
located shortly thereafter. (N.T. 4/22/10 at 5-9.) Petitioner’s fingerprints were found on the car
and Petitioner was also linked to the car by DNA found on a drinking straw inside the car. (N.T.

4/15/10 at 116-18; N.T. 4/16/10 at 3-5; N.T. 4/23/10 at 56-57, 62-64.) The police officer who
received the note testified as to its contents at trial, but Mr. Batts was not called as a witness.
(N.T. 4/21/10 at 46.)
1. Direct claim
The Magistrate Judge recommends that Petitioner’s claim that the admission of the note
violated his Confrontation Clause right has been procedurally defaulted because, just like
Petitioner’s post-Miranda silence claim, Petitioner did not raise this claim on direct appeal or
during PCRA proceedings and only argued in the PCRA proceedings that appellate counsel was
ineffective in failing to raise the claim on direct appeal. Petitioner objects to this
recommendation, but does not maintain that he previously asserted this claim or argue that his
procedural default should be excused for any recognized reason. (See Pet’r’s Objs. at 13
(“Although timely objections were made during trial, this issue was not litigated on direct appeal.
Rather, the issue was litigated for the first time during state post-conviction proceedings, i.e., a

claim that appellate counsel was ineffective for failing to litigate the issue on direct appeal.”).)
Accordingly, Petitioner has presented no basis on which we could conclude that the Magistrate
Judge’s recommendation that his claim is procedurally defaulted is erroneous. Moreover, we find
on de novo review, like the Magistrate Judge did, that the claim is procedurally defaulted. We
therefore overrule this objection to the Magistrate Judge’s R&R.
2. Appellate counsel ineffectiveness
Unlike his direct Confrontation Clause claim, Petitioner properly raised his claim that his
appellate counsel was ineffective in failing to raise his Confrontation Clause claim. In the state
court proceedings, the PCRA court concluded that, under the United States Supreme Court
precedent in Davis v. Washington, 574 U.S. 813 (2006), the contents of the note were

nontestimonial, and thus not subject to Confrontation Clause constraints. (Commonwealth v.
Chambarlain, CP-51-CR-0203881-2006, at 14 (C.C.P. Phila. July 6, 2016) (“7/6/16 C.C.P. Op.”).
Moreover, because a lawyer cannot be ineffective for failing to raise a meritless claim and the
Confrontation Clause claim was meritless, the court concluded that Petitioner was not entitled to
relief on his ineffectiveness claim. (Id.) On appeal, the Superior Court concluded that the PCRA
court’s opinion “thoroughly addresse[d] and accurately dispose[d] of [Petitioner’s] claims.”
Commonwealth v. Chambarlain, No. 3525 EDA 2015, 2017 WL 44937, at *4 (Pa. Super. Ct.
2017). The Magistrate Judge recommends that we now deny this claim because the state court
did not unreasonably apply Federal law.
In his Objection to the Magistrate Judge’s recommendation regarding this claim, Petitioner
argues that the state court’s conclusion that the note was nontestimonial and therefore not subject
to Confrontation Clause limitations rested on an unreasonable application of Federal law as set
forth in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813

(2006). In Crawford, the Supreme Court established the underlying constitutional principle that,
pursuant to the Confrontation Clause, testimonial evidence is not admissible against a defendant
unless the witness is unavailable and the defendant had a prior opportunity to cross examine the
witness. 541 U.S. at 68. Crawford involved a defendant who was charged with attempted
murder after stabbing a man who attempted to rape his wife and who challenged the prosecution’s
use at trial of his wife’s tape-recorded statement to police while in police custody, when she had
not been called to testify at trial. 541 U.S. at 38-41. On Supreme Court review, the Court held
that the wife’s statement under the circumstances presented was “testimonial” in nature and
therefore subject to Confrontation Clause limitations. Id. at 61, 68. At the same time, it “le[ft]
for another day any effort to spell out a comprehensive definition of ‘testimonial,’” holding only

that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” Id. at 68.
Subsequently, in Davis, the Court considered “when statements made to law enforcement
personnel during a 911 call or at a crime scene are ‘testimonial’ and thus subject to the
requirements of the Sixth Amendment’s Confrontation Clause.” 547 U.S. at 817. The Court
held in Davis that “[s]tatements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.” Id. at 822. In contrast, “[t]hey are
testimonial when the circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” Id. Applying these standards, the Davis Court held that,
objectively considered, a statement made on a 911 call was non-testimonial because the caller
proclaimed an emergency, sought help, “describe[d] current circumstances requiring police

assistance,” and did not merely seek “‘to establis[h] or prov[e]’ some past fact.” Id. at 826-27
(alterations in original) (quoting Crawford, 541 U.S. at 51). On the other hand, the Court
concluded that a victim’s statement at the scene of a domestic violence crime was testimonial
where the victim was in no immediate danger, was protected by police, and was describing events
that were no longer ongoing, and the victim’s statements were not necessary to enable officers to
immediately end a threatening situation. Id. at 832.
Applying this Supreme Court precedent in the instant case, the state court concluded that
“Batts’ statements – his description of the getaway car – were essential in aiding the police to meet
an ongoing emergency and pursue the perpetrators.” (7/6/16 C.C.P. Op. at 14.) “Thus, it stated
that it was “satisfied that under Davis, Batts’ statements were nontestimonial and that, therefore,

they were not subject to the Confrontation Clause constraints.” Id. Petitioner argues that this
analysis was an unreasonable application of Federal precedent, which, in his view, supports only
a conclusion that the Batts note was testimonial. He relies on Crawford’s observation that
“testimony” has been defined as “‘[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact,’” 541 U.S. at 51 (quoting 2 N. Webster, An American
Dictionary of the English Language (1828)), and he argues that the Batts note was a “‘solemn
reflection and recitation of a set of facts [that Batts had] witnessed.’” (Pet’r’s Objs. at 15.) He
also emphasizes that Batts “thought to deliberately write down the information” and provide it to
the investigator in order “to convey a description of the vehicle.” (Id. at 15-16.)
However, in spite of Petitioner’s disagreement with the state court’s analysis, we cannot
conclude that the state court’s decision “involved an unreasonable application of[] clearly
established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). Review of a state court decision under this standard is “‘highly deferential.’”

Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7
(1997)). The Supreme Court has clearly stated:
“[A]n unreasonable application of federal law is different from an
incorrect application of federal law.” Williams v. Taylor, 529 U.S.
362, 410 (2000). Indeed, “a federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id., at 411.
Rather, that application must be “objectively unreasonable.” Id., at
409. This distinction creates “a substantially higher threshold” for
obtaining relief than de novo review. Schriro v. Landrigan, 550
U.S. 465, 473 (2007).

Id.
Here, the state court’s determination was in no way “objectively unreasonable.” Id.
(quoting Williams, 529 U.S. at 409). Indeed, there is nothing unreasonable in the determination
that the Batts note, like the 911 call in Davis, was a statement made in the course of an ongoing
investigation in order to assist the police in addressing an ongoing emergency, and that, as a result,
the note, like the 911 statement, was nontestimonial. While Petitioner has suggested that we
consider Batts’s motivation in making the statement and argues that Batts may have been
motivated merely to provide facts about a past event, the Supreme Court is clear that the primary
purpose of a statement is to be determined not based on the speaker’s actual subjective intent, but
based on an objective inquiry of the circumstances presented. See Davis, 547 U.S. at 822. Using
such an objective inquiry, the state court did not contravene clear Supreme Court precedent in
concluding that the primary purpose of the note was to assist in an emergency and, indeed, the note
did assist in an emergency as it provided critical assistance to the police in expeditiously
identifying Chambarlain as a criminal suspect.
We therefore conclude that the state court did not unreasonably apply Federal law in
concluding that the Confrontation Clause claim was meritless because Batts’s statement was

nontestimonial. Furthermore, because the state court reasonably found the Confrontation Clause
claim to be meritless, the state court did not err in concluding that Petitioner’s appellate counsel
was not ineffective for failing to raise the Confrontation Clause claim. See Real v. Shannon, 600
F.3d 302, 310 (3d Cir. 2010) (noting that counsel cannot be ineffective for failing to raise a
meritless claim). Accordingly, we overrule Petitioner’s objection to the Magistrate Judge’s
recommendation that we deny Petitioner’s claim that his appellate counsel was ineffective for
failing to raise the Confrontation Clause claim.
3. Vouching
In his fifth claim, Petitioner objects to the Magistrate Judge’s recommendation that we
deny his claim that trial counsel was ineffective for failing to object to the prosecution’s alleged

vouching for the cooperating witness. Petitioner contends that the prosecutor engaged in
improper vouching when, in questioning the cooperating witness, she “went through painstaking
detail to disclose the terms of [the cooperating witness’s] plea agreement,” which included
language stating that that “the DA had determined that the testimony of . . . [the witness] is vital
to insure that other individuals are brought to justice.” (Pet’r’s Mem. at 34.) His counsel did not
object to this line of questioning at trial.
When Petitioner raised this ineffectiveness claim in the PCRA proceedings, the trial court
applied state law to conclude that the underlying claim of improper vouching was meritless, and it
denied Petitioner’s ineffectiveness claim on that basis. (See 7/6/16 C.C.P. Op. at 6-8.) In
addressing this ineffectiveness claim on habeas review, the Magistrate Judge recommends that the
only Federal law that the state court applied in resolving the claim was Strickland, and he
recommends that the state court did not unreasonably apply Strickland in resolving the claim. In
his Objections, Petitioner specifically objects to the Magistrate Judge’s recommendation that the

state court relied only on state law in rejecting the vouching claim, and he argues that we should
find that that the state court unreasonably applied Federal law in finding the improper vouching
claim to be meritless.
However, the Magistrate Judge correctly observed that the state court did not reference
Federal law regarding vouching in rejecting Petitioner’s ineffectiveness claim. (See id.)
Moreover, while Petitioner now contends that the state court’s holding nevertheless contravenes
established Federal law, the sole Supreme Court case that he cites, United States v. Young, 470
U.S. 1 (1985), only sets forth basic principles regarding improper vouching, and Petitioner fails to
elaborate on how the state court’s decision contradicts that precedent. Id. at 18-19; see also Early
v. Packer, 537 U.S. 3, 8 (2002) (explaining that where a state court decision does not cite Federal

law, the decision will not be found to be contrary to Federal law “so long as neither the reasoning
nor the result of the state-court decision contradicts [that law]”).
Petitioner also cites authority from the United States Court of Appeals for the Third Circuit
that interprets Supreme Court precedent and states that improper “[v]ouching constitutes an
assurance by the prosecuting attorney of the credibility of a Government witness through personal
knowledge or by other information outside of the testimony before the jury.” United States v.
Walker, 155 F.3d 180, 184 (3d Cir. 1998) (citing United States v. Lawn, 355 U.S. 339, 359 n.15
(1958)) (additional citation omitted); see also Hardcastle v. Horn, 368 F.3d 246, 255 n.3 (3d Cir.
2004) (explaining that “although § 2254 permits habeas corpus relief only in situations in which a
state court’s decision ‘is contrary to, or an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States,’ [a court’s] analysis of Supreme
Court precedent may be amplified by decisions of inferior federal courts evaluating . . . that
Supreme Court precedent” (citation omitted)). Petitioner has, however, failed to explain how the

state court decision contradicts this precedent when it is far from clear that the prosecutor’s
questioning in this case conveyed any message of assurance about the witness’s credibility and,
even assuming arguendo that it did, Petitioner does not argue – and the record does not support a
conclusion – that the alleged vouching was based on information not in the record before the jury
or based on the prosecutor’s own personal knowledge. Under these circumstances, Petitioner has
set forth no basis on which we could conclude that the state court engaged in an unreasonable
application of Federal law concerning vouching, and we therefore overrule his objection to this
aspect of the Magistrate Judge’s R&R.
III. CONCLUSION
For all of these reasons, we overrule Petitioner’s Objections in their entirety, approve and

adopt the Magistrate Judge’s R&R, and dismiss Petitioner’s § 2254 Petition in part and deny it in
part. An appropriate Order follows.

BY THE COURT:

/s/ John R. Padova, J.

John R. Padova, J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399211. Public record. Not legal advice.