Campbell v. Vaughn

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

4-12-2000

Campbell v. Vaughn

Precedential or Non-Precedential:

Docket 98-1744

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation

"Campbell v. Vaughn" (2000). 2000 Decisions. Paper 76.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/76

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed April 12, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-1744

DEAN NATHAN CAMPBELL, Appellant

v.

DONALD T. VAUGHN; THE DISTRICT ATTORNEY OF THE

COUNTY OF DELAWARE; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 97-cv-02677)

District Judge: Honorable John P. Fullam

Argued: January 10, 2000

Before: BECKER, Chief Judge, ALITO and BARRY,

Circuit Judges.

(Filed: April 12, 2000)

PETER GOLDBERGER, ESQUIRE

(ARGUED)

PAMELA A. WILK, ESQUIRE

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel for Appellant

VRAM NEDURIAN, JR., ESQUIRE

(ARGUED)

Assistant District Attorney

A. SHELDON KOVACH, ESQUIRE

Deputy District Attorney

Chief, Law & Appeals Unit

PATRICK L. MEEHAN, ESQUIRE

District Attorney

Delaware County Court House

201 West Front Street

Media, PA 19063-2683

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Dean Campbell, a Pennsylvania

prison inmate, whose petition for writ of habeas corpus

pursuant to 28 U.S.C. S 2254(d) was denied by the District

Court. Campbell contends that, because his trial counsel

did not properly inform him of his right to testify at trial,

counsel rendered ineffective assistance by interfering with

his constitutional right to testify. In the alternative,

Campbell seeks a new evidentiary hearing, pursuant to 28

U.S.C. S 2254(e)(2), so that the District Court can complete

the factual record on which his substantive claim rests.

Campbell contends that the state courts failed to make a

finding of historical fact as to whether trial counsel

informed him that it was his choice to testify on his own

behalf. Without such a finding, he argues, it is impossible

to address the merits of his substantive claim.

We reject both of Campbell's claims. Addressing the

S 2254(e)(2) claim first, we hold that, while they were not

artfully expressed, the state trial court made sufficient

findings of fact regarding Campbell's communications with

his trial counsel. That court's written opinion made it clear

that the court implicitly found that Campbell's trial counsel

informed him of his right to testify. This implicit factual

finding, which is binding under the federal habeas statute

2

and Supreme Court precedent, undermines Campbell's

substantive constitutional claim.

Turning to Campbell's substantive claim, we hold that,

on the facts presented, the state appellate court's

conclusion that Campbell's trial counsel did not render

ineffective assistance or interfere with his right to testify in

warning Campbell that testifying on his own behalf might

be unwise was not " `contrary to' or an`unreasonable

application of ' clearly established federal law, as

determined by the Supreme Court," Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 887 (3d Cir.

1999) (en banc) (quoting 28 U.S.C. S 2254(d)(1)), nor was it

reached " `based on an unreasonable determination of the

facts in light of the evidence,' " id. at 887-88 (quoting 28

U.S.C. S 2254(d)(2)). Accordingly, we will affirm the order of

the District Court denying habeas relief.1

I. Factual Background and Procedural History

The facts before the state trial court may be summarized

as follows. One night in January 1983, Campbell and his

_________________________________________________________________

1. We note that Campbell's constitutional claim is something of a hybrid.

He does not allege that the Commonwealth deprived him of his right to

testify--the normal scenario in a right-to-testify claim, see, e.g., Rock

v.

Arkansas, 483 U.S. 44, 61 (1987) (holding that state's evidentiary rules

interfered with criminal defendant's right to testify on his or her own

behalf)--but rather that his trial counsel's ineffective assistance

interfered with that right. (For the sake of convenience, throughout the

opinion we refer to Campbell's claim as his "right-to-testify/ineffective-

assistance claim.")

As we ultimately conclude that Campbell's counsel did not interfere

with his right to testify or render ineffective assistance, see infra Part

III,

we do not address the standard by which we would judge the

harmlessness or prejudicial nature of counsel's actions had they been

ineffective or injurious to Campbell's right to testify. This appears to

be

an open question, and the parties disagree about which standard should

apply. Campbell argues that because the right to testify is a fundamental

right, the denial of that right should per se render a trial unfair.

Counsel

for the Commonwealth argues that because Campbell's claim hinges on

a finding of ineffective assistance of counsel, the Strickland v.

Washington, 466 U.S. 668, 691-96 (1984), actual prejudice standard

should apply. We take no position in this dispute.

3

brother, Michael, waited at an intersection at the end of a

freeway off-ramp in Chester, Pennsylvania. John Maletsky

and his four-year old daughter, Kimberly, drove down the

off-ramp and waited at the stop light. Campbell and

Michael approached the car. Campbell pulled Maletsky

from the car and shot him twice. Michael jumped into the

car and drove away with the child still in the passenger

seat.

Maletsky's wife, Deborah, who had been following her

husband in another car, arrived on the scene shortly

thereafter. She saw her husband struggling with Campbell

near a curb, but did not see his car or their daughter. She

called to her husband, and he pointed in the direction that

Michael had driven. Deborah looked down the street and

saw that her husband's car had been immobilized by ice.

Campbell approached Deborah's car and grabbed her

handbag. Deborah and Campbell began to struggle. After

she pulled a hat from his head, Campbell ran down the

street with Deborah's handbag. Deborah ran toward her

husband's car, where she found Michael inside the car with

their child. She convinced Michael to let her take the child.

Michael then ran away. Maletsky died later that evening

from gunshot wounds to the chest and stomach.

Campbell and Michael fled to Louisiana, but were

apprehended there by local authorities. After the authorities

gave Campbell the proper warnings, Campbell waived his

rights and voluntarily confessed (with a great deal of

contrition) that he had shot Maletsky and committed a

number of other crimes against Maletsky and his wife. He

thereafter waived the right to an extradition hearing and

was transferred to Pennsylvania. Upon his arrival, the

Commonwealth charged him with murder (18 Pa. Cons.

Stat. S 2502), theft (id. S 3902), kidnapping (id. S 2901),

reckless endangerment (id. S 2705), possessing the

instruments of crime (id. S 907), and criminal conspiracy to

commit other offenses (id. S 903).

Campbell's trial counsel was a public defender without a

great deal of experience. He and Campbell disagreed on

trial strategy. Trial counsel's greatest concern, given the

heinous nature of Campbell's crimes, was that his client

not be sentenced to death. Campbell did not take the

4

witness stand at trial, but he later asserted that he had

wanted to take the stand so that he could explain his

confession, assert an intoxication defense, and try to avoid

a life sentence. Trial counsel responded that he counseled

against such a strategy on the grounds that recanting his

grief-ridden confession might alienate the jury and expose

Campbell to a death sentence.

After a three-day trial, in May 1984, Campbell was

convicted on all counts (the jury returned a second-degree

murder conviction). On January 2, 1985, the trial judge

sentenced him to serve a term of life imprisonment on the

murder count and to consecutive terms aggregating to 13 to

39 years on the five other counts. Post-trial motions filed by

Campbell's trial counsel were denied.

Campbell's trial counsel initiated but failed to perfect

Campbell's appeal, to which he had a right under

Pennsylvania law. Objecting to this failure, Campbell filed a

pro se petition under the Post Conviction Hearing Act

(PCHA) on May 2, 1986; an amended pro se petition on

November 10, 1986; and a third petition, with the

assistance of counsel, on January 4, 1987. In these papers,

he asserted several grounds to support an ineffective-

assistance-of-counsel claim, primarily focusing on the fact

that trial counsel had failed to file a timely appellate brief,

thereby precluding him from pursuing his right to appeal.

In attempting to preserve his right to appeal, Campbell

asked for an exception to statutory time-bar provisions in

the form of permission to file a nunc pro tunc appeal with

the Pennsylvania Superior Court--an intermediate appellate

court. In addition to his nunc pro tunc request, among other

things, he asserted that his trial counsel (1) interfered with

his constitutional right to testify on his own behalf; (2)

failed to emphasize the level of his intoxication at the time

he committed the crime; and (3) failed to remove himself

from the case in light of his inexperience.

On March 4, 1987, the PCHA court, which had also been

the trial court, held an evidentiary hearing as it was

required to do under Pennsylvania law. See Commonwealth

v. Stokes, 440 A.2d 591, 595 (Pa. Super. Ct. 1982). At this

hearing, the PCHA court undertook its duty to hear

evidence regarding all of Campbell's claims that required

5

the development of a factual record. See Commonwealth v.

Elliot, 466 A.2d 666, 668 (Pa. Super. Ct. 1983). The PCHA

court heard evidence that Campbell's trial counsel had

failed to perfect Campbell's appeal; that trial counsel had

failed to assert Campbell's intoxication defense; and that

trial counsel was so inexperienced--this was hisfirst

homicide trial, at least according to Campbell--that in

failing to seek his own withdrawal from the case, he

rendered ineffective assistance.

Most importantly for our purposes, the court heard

evidence regarding Campbell's contention that trial counsel

had interfered with his constitutional right to testify on his

own behalf. In support of this claim, Campbell testified that

his trial counsel did not inform him of his right to testify,

that he had wanted to testify, and that the reason he did

not do so is that his trial counsel said not to. Trial counsel

also testified. He admitted that he had cautioned Campbell

against testifying, but insisted that he "[a]bsolutely" told

Campbell that it was Campbell's decision to take the stand.

The relevant testimony is reproduced in the margin. 2

_________________________________________________________________

2. On examination by his counsel at the PCHA hearing, Campbell

testified as follows:

Q: Did you indicate to [your trial counsel] that you wanted to

testify

on your own behalf?

A: Yes.

Q: Did you testify on your own behalf.

A: No.

Q: Why not?

A: Because he said not to, but I did want to testi fy because there

was a number of things that I could have said to the jury . . . .

Q: Did [your trial counsel] indicate to you that you had the right

to

testify on your own behalf?

A: He didn't come out and give it to me in no formal manner. He

just

said, "I don't think you should testify ."

Appendix at 28a (emphasis added).

The testimony of Campbell's trial counsel on examination by

Campbell's lawyer at the PCHA hearing is as follows:

6

Neither man's testimony was corroborated, and the

conflicting testimony created a credibility dispute.

At the conclusion of the hearing, the PCHA court

determined that Campbell's trial counsel had negligently

failed to file an appellate brief and that Campbell was

entitled to a nunc pro tunc appeal. In a written opinion

memorializing its decision, the court "refrained from ruling

upon the merits of defendant's other grounds,"

Commonwealth v. Campbell, No. 666-84, at 2 (Pa. Ct.

Common Pleas Jan. 6, 1988), as prescribed by

Commonwealth v. Miranda, 442 A.2d 1133 (Pa. Super. Ct.

1982).3 In so refraining, the court nonetheless attempted to

_________________________________________________________________

Q: Did you ever--did the Court ever ask my clien t why he was not

going to take the stand to testify on his own behalf?

. . .

A: I don't recall if we did it on the record or if he and I just

discussed it at the counsel table together. I considered it that

there

would be absolutely no way that he could take the stand and

preserve the question of trying to avoid the first degree murder

question. If he took the stand in my opinion, and I told him this,

that he could have the jury be alienated against him because his

confession . . . was somewhat mitigating in that he expressed

considerable remorse and if he were to take the stand and either

give a different story or either try to explain it away, in my

opinion,

and I told him this, that I considered it to be a very substantial

possibility that the jury would consider that his remorse has now

been or had then been qualified. So I advised him not to take the

stand.

Q: But it was my client's position that he wanted to take the

stand,

is that correct?

A: He wasn't certain as to what to do.

. . .

Q: Had you indicated to my client that he had a right to take the

stand if he decided to?

A: Absolutely, it was his decision, it was his life.

Appendix at 23a-26a (emphasis added).

3. Miranda holds that "once the PCHA court determines petitioner has

been deprived of his appellate rights, it should refrain from ruling upon

the merits of the other claims and should grant petitioner the right to

file

an appeal nunc pro tunc." 442 A.2d at 1138.

7

fulfill its obligation under Miranda, see id. at 1138, to

"make the findings of fact" necessary to"see to it that the

record" was complete for the appellate court that would

subsequently be hearing Campbell's nunc pro tunc appeal,

Commonwealth v. Johnson, 444 A.2d 1291, 1293 n.2 (Pa.

Super. Ct. 1982); see also Commonwealth v. Presbury, 467

A.2d 898, 898 (Pa. Super. Ct. 1983) (citing Pa. R. Crim. P.

1506(5) and other "decided cases" as the source of this

duty).

The PCHA court made its findings of fact regarding

Campbell's other ineffective-assistance claims in the

following manner:

The court, following the mandates of Commonwealth v.

Miranda, supra, completed this record by allowing an

evidentiary hearing concerning the other issues raised

[the six ineffective-assistance-of-counsel claims other

than the failure-to-file-an-appellate-brief claim]. Thus,

the record is complete for appellate purposes [citing

and quoting Miranda at length].

It may be noted in passing that the allegedly new

issues raised by defendant at his Post Conviction

Hearing Act Hearing [the six other ineffectiveness

claims] were either disposed of in this court's original

Opinion [denying claims raised in post-trial briefing], or

are clearly unsupported by the records (for example this

was not trial counsel's first homicide trial . . . and the

issue of intoxication was placed before the jury . .. .)

The defendant has simply failed to carry his burden

of establishing ineffectiveness as to any specific issue

raised or collectively as to all of the issues raised.

Respecting the Appellate Court mandate hereinabove

cited, [Miranda] no further decision is made as to the

additional issues of ineffectiveness claimed by

defendant. The denial of his right to appeal has already

been remedied. This court does respectfully suggest

that the defendant's contention of ineffectiveness as to

the additional issues has not been established by the

evidence.

8

Commonwealth v. Campbell, No. 666-84, at 2-4 (Pa. Ct.

Common Pleas Jan. 6, 1988) (emphasis added) (citations

and footnote omitted).

In these four paragraphs, the PCHA court did not

explicitly resolve the credibility dispute between Campbell

and his trial counsel regarding the right-to-testify/

ineffective-assistance claim. However, the Commonwealth

contends that the court did so implicitly with its repeated

mention that the evidence did not support Campbell's

ineffectiveness claims other than his right to appeal claim.

See infra Section II.C (discussing whether the PCHA court,

in fact, made this finding).

The Superior Court panel that heard Campbell's nunc pro

tunc appeal did not advert to the PCHA court's failure to

make an explicit finding regarding this disputed testimony.

In its memorandum opinion, it reproduced the testimony

given by Campbell's trial counsel at the PCHA hearing (also

reproduced at supra note 2), without mentioning

Campbell's testimony to the contrary. In ruling on the legal

issue, the panel wrote:

This testimony [that of Campbell's trial counsel]

would indicate that [Campbell] made a decision not to

testify after full consultation. In addition, it appears

that counsel had a reasonable basis designed to

further appellant's interests, for not calling him to

testify. . . . We find no ineffectiveness in counsel's

action.

Commonwealth v. Campbell, No. 1010 Philadelphia 1987, at

8 (Pa. Super. Ct. Jul. 26, 1988) (citations omitted). Based

on this analysis, the Superior Court rejected Campbell's

right-to-testify/ineffective-assistance claim, along with the

host of claims that Campbell had asserted.

On April 18, 1997, Campbell filed a timely habeas

petition, asserting several claims, including his right-to-

testify/ineffective-assistance claim. The Magistrate Judge to

whom the case was referred for a report or recommendation

rejected all of Campbell's claims. Addressing Campbell's

right to testify claim, she concluded "that the Superior

Court's finding that Mr. Campbell decided not to testify

after consultation with his counsel [was] not based on an

9

unreasonable determination of the facts in light[of] the

evidence presented at the PCHA hearing." Campbell v.

Vaughn, No. 97-2677, at 21-22 (E.D. Pa. June 5, 1998)

(Magistrate Judge's Report and Recommendation)

(emphasis added). Moreover, she concluded, neither was

the "Superior Court's [legal conclusion] contrary to

established Federal law" under the Strickland v.

Washington, 466 U.S. 668 (1984), ineffective-assistance-of-

counsel standard. Campbell, No. 97-2677 at 22 (emphasis

added). The District Court adopted the Magistrate Judge's

findings and entered an order denying Campbell's petition

for writ of habeas corpus.

The District Court declined to grant a certificate of

appealability pursuant to 28 U.S.C. S 2253(c)(1); however,

this court granted the certificate on June 14, 1999. See

Campbell v. Vaughn, No. 98-1774 (3d Cir. June 14, 1999).

In so doing, we limited the certificate of appealability to

Campbell's right-to-testify/ineffective-assistance claim. See

id. The District Court had jurisdiction pursuant to 28

U.S.C. SS 2241(c)(3) and 2254(a). We have jurisdiction

pursuant to 28 U.S.C. SS 1291 and 2253.

II. Whether a New Evidentiary Hearing is Required

The provisions of the federal habeas statute govern our

review. It provides that "a determination of a factual issue

made by a State court shall be presumed to be correct. The

[habeas] applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing

evidence." 28 U.S.C. S 2254(e)(1). In interpreting this

statute, the Supreme Court has held that an implicit

finding of fact is tantamount to an express one, such that

deference is due to either determination. See Parke v.

Raley, 506 U.S. 20, 35 (1992); Marshall v. Lonberger, 459

U.S. 422, 432-33 (1982); LaVallee v. Delle Rose , 410 U.S.

690, 692 (1973) (per curiam); see also McAleese v.

Mazurkiewicz, 1 F.3d 159, 172 (3d Cir. 1993); Ahmad v.

Redman, 782 F.2d 409, 413 (3d Cir. 1986).

A.

Campbell does not seek to introduce new evidence that

would cast doubt upon the factual determinations made by

10

the state courts involved in this case. Rather, he argues

that the PCHA court and the Superior Court made no

factual "determination" to which we need to defer. In

advancing this argument, he makes two contentions: (1)

that both courts' treatment of the unresolved issue of fact

created by Campbell's and his trial counsel's conflicting

testimony was too indeterminate to be treated as a factual

determination; and (2) that if the Superior Court made a

definitive factual finding resolving this credibility dispute,

the court did not have the power to do so under

Pennsylvania law, and hence, its finding should be

disregarded. Campbell therefore submits that, to resolve his

substantive habeas claim, a new evidentiary hearing must

be held--not so that new, or recently discovered, evidence

may be introduced, but so that the District Court can

determine, based on Campbell's live testimony and that of

his trial counsel's whether, as a matter of fact, his trial

counsel informed him that it was his decision whether to

testify on his own behalf.

The Antiterrorism and Effective Death Penalty Act

(AEDPA) amended the federal habeas statute in such a way

as to limit the availability of new evidentiary hearings on

habeas review. See 28 U.S.C. S 2254(e)(2). Prior to AEDPA,

new evidentiary hearings were required in several

circumstances. See Townsend v. Sain, 372 U.S. 293, 313

(1963) (listing six circumstances in which a hearing was

required, including when "the material facts were not

adequately developed at the state-court hearing"); Keeney v.

Tamayo-Reyes, 504 U.S. 1, 11 (1992) (refining the

Townsend standard by requiring that the petitioner "show

cause for his failure to develop the facts in the state-court

proceedings and actual prejudice resulting from that

failure," but not curtailing Townsend's list); see also 28

U.S.C. S 2254(d) (1995) (amended by AEDPA, at 28 U.S.C.A.

S 2254(e)(2) (West Supp. 1999)) (providing the pre-AEDPA

standard for holding evidentiary hearings on habeas

review).

AEDPA, in contrast, permits evidentiary hearings on

habeas review, but only in a limited number of

circumstances. See 28 U.S.C. S 2254(e).4 If Campbell is

_________________________________________________________________

4. As amended by AEDPA, 28 U.S.C. S 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in

11

correct that the state courts failed to resolve the factual

issue on which his habeas petition rests, a new evidentiary

hearing would be permitted, as the failure to develop the

factual record would not be his fault. AEDPA and uniform

case law interpreting it provide that if the habeas petitioner

"has diligently sought to develop the factual basis of a claim

for habeas relief, but has been denied the opportunity to do

so by the state court, S 2554(e)(2) will not preclude an

evidentiary hearing in federal court." Cardwell v. Greene,

152 F.3d 331, 337 (4th Cir. 1998) (collecting court of

appeals cases that agree with this proposition).

However, even if a new evidentiary hearing is permitted

under AEDPA--when it is solely the state's fault that the

habeas factual record is incomplete--AEDPA, unlike

Townsend and Keeney, does not require that such a

hearing be held. Instead, federal courts have discretion to

grant a hearing or not. In exercising that discretion, courts

focus on whether a new evidentiary hearing would be

meaningful, in that a new hearing would have the potential

to advance the petitioner's claim. For example, in Cardwell,

the court held that a new evidentiary hearing was

permissible under AEDPA because it was the state's fault

that the factual record was incomplete. See 152 F.3d at

338. The court nonetheless went on to conclude that the

district court did not err in refusing to grant the petitioner

an evidentiary hearing, because the petitioner "ha[d] failed

to forecast any evidence beyond that already contained in

_________________________________________________________________

State court proceedings, the court shall not hold an evidentiary hearing

on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroac tive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by

clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

12

the record" that would help his cause, "or otherwise to

explain how his claim would be advanced by an evidentiary

hearing." Id.

Campbell, in contrast, has explained how a new hearing

would advance his claim. Assuming arguendo, that he is

correct that the Pennsylvania state courts did not resolve

the credibility dispute between Campbell and his trial

counsel, a new evidentiary hearing in which the Magistrate

Judge or District Judge found that Campbell's testimony is

to be believed would surely advance his right-to-testify/

ineffective-assistance claim. Such a finding would mean

that trial counsel rendered ineffective assistance by

unconstitutionally interfering with his right to testify. If

Campbell is wrong, and the state courts made a finding of

fact to which we must defer, then a new evidentiary hearing

would not only not advance his right-to-testify/ineffective-

assistance claim, it would be forbidden under the precepts

of S 2254(e)(2) and case law interpreting it, because there

would be no factual deficiency that a federal habeas court

could redress.

B.

In addressing Campbell's S 2254(e)(2) claim, the

Magistrate Judge, the District Judge, the Commonwealth,

and Campbell have all concentrated on the Superior Court's

statement that the record "would indicate" that Campbell's

trial counsel informed his client that it was his decision to

testify. Commonwealth v. Campbell, No. 1010 Philadelphia

1987, at 8 (Pa. Super. Ct. Jul. 26, 1988) (citations omitted).

The Magistrate Judge, the District Judge, and the

Commonwealth have reasoned that this is the

determination of fact to which we must defer, and therefore

that a S 2254(e)(2) hearing is inappropriate. Campbell

contends both that the Superior Court's statement is not a

determination of fact, and that the Superior Court, as an

appellate court, did not have the power under Pennsylvania

law to make such a finding on a cold record when making

such a finding necessitated resolving a credibility dispute

without having seen the witnesses testify. Neither the

Magistrate Judge, the District Judge, nor the

Commonwealth have addressed the latter argument.

13

The parties' and the Magistrate and District Judges' focus

on the Superior Court opinion is not necessary. Under

Pennsylvania law, the PCHA court was charged with

making the finding of fact in question. See Commonwealth

v. Johnson, 444 A.2d 1291, 1293 n.2 (Pa. Super. Ct. 1982)

(describing the duty); Commonwealth v. Miranda , 442 A.2d

1133, 1138-43 (Pa. Super. Ct. 1982) (same). Accordingly, it

was the PCHA court's duty to resolve the credibility dispute

between Campbell and trial counsel before passing

Campbell's legal claim to the Superior Court. See

Commonwealth v. Elliot, 466 A.2d 666, 668 (Pa. Super. Ct.

1983); Johnson, 444 A.2d at 1293 n.2; Miranda, 442 A.2d

at 1138; see also infra Section II.C (explaining this

procedure). We believe the PCHA court made thisfinding of

fact, to which we must defer, and turn to this matter now.

Before doing so, we note that in relying on the PCHA court's

finding, we express no opinion as to whether in this precise

factual circumstance, the Superior Court could have made

this finding of fact on the cold appellate record, such that

we would need to defer to it pursuant to AEDPA.

C.

In determining whether the PCHA court made a finding of

fact resolving the credibility dispute between Campbell and

his trial counsel, the prime evidentiary source is the PCHA

court's written opinion. Through its repeated references to

the insufficiency of the evidence that Campbell adduced to

support his myriad ineffective-assistance-of-counsel claims,

the PCHA court demonstrated--if in somewhat

circumabulatory fashion--that it did not credit Campbell's

testimony that his trial counsel failed to inform him of his

right to choose to testify. While never explicitly crediting the

testimony of Campbell's trial counsel, the PCHA court

wrote:

It may be noted in passing that the allegedly new

issues raised by defendant at his Post Conviction

Hearing Act Hearing . . . are clearly unsupported by the

records . . . .

. . .

14

The defendant has simply failed to carry his burden of

establishing ineffectiveness as to any specific issue

raised or collectively as to all of the issues raised.

Commonwealth v. Campbell, No. 666-84, at 3 (Pa. Ct.

Common Pleas Jan. 6, 1988).

This court does respectfully suggest that the

defendant's contention of ineffectiveness as to the

additional issues has not been established by the

evidence.

Id. at 4.

As we read these passages, we believe that the PCHA

court implicitly discredited Campbell's testimony.

Borrowing from the Supreme Court's holding in LaVallee v.

Delle Rose, 410 U.S. 690, 692 (1973) (per curiam),

"[a]lthough it is true that the state trial court did not

specifically articulate its credibility findings, it can scarcely

be doubted from its written opinion that [Campbell's]

factual contentions were resolved against him." Although,

as Campbell properly notes, the PCHA court made one of

these remarks "in passing," Campbell, No. 666-84, at 3, the

PCHA court was properly passing the legal resolution of

these claims--based on the factual record it created--on to

the Superior Court. Miranda and other Pennsylvania case

law dictated that the PCHA court do so, and, in fact,

prohibited the PCHA court from reaching out to dispose of

the legal questions raised in those additional claims.

Miranda held that "once the PCHA court determines

petitioner has been deprived of his appellate rights, it

should refrain from ruling upon the merits of the other

claims and should grant petitioner the right tofile an

appeal nunc pro tunc." 442 A.2d at 1138. In completing the

record for appellate review as to the other claims,"the

PCHA court is merely acting as an evidentiary tribunal." Id.

(emphasis added). Cases interpreting Miranda hold the

same. In Commonwealth v. Pate, the Pennsylvania Superior

Court wrote, "[O]nce a PCRA court [the equivalent of PCHA

court] determines that a petitioner's right to direct appeal

has been violated, the PCRA court is precluded from

reaching the merits of other issues raised in the petition."

617 A.2d 754, 757 (Pa. Super. Ct. 1992) (emphasis added).

15

This limitation on the powers and duties of the PCHA court

may explain its somewhat tentative written opinion, as well

as validate its (inchoate) fact-finding.

Similarly, the fact that the PCHA court merely

"suggest[ed]" that the evidence did not support Campbell's

claims does not undermine our conclusion. Campbell, No.

666-84, at 4. If anything, it bolsters it, for in attempting to

determine the character of the PCHA court's statements, we

also look to the court's legal conclusions and the rational

deductions that we can draw therefrom. As the Supreme

Court made clear in Marshall v. Lonberger, 459 U.S. 422,

433 (1982), in determining what implicit factualfindings a

state court made in reaching a conclusion, we must infer

that it applied federal law correctly. Therefore, the PCHA

court's suggestion to the Superior Court regarding the

merits of Campbell's claims is helpful in determining what

findings of fact it implicitly reached. See id.; see also

Ahmad v. Redman, 782 F.2d 409, 413 (3d Cir. 1986)

(applying the rule in Marshall). Put differently, our duty is

to begin with the PCHA court's legal conclusion and reason

backward to the factual premises that, as a matter of

reason and logic, must have undergirded it.

The PCHA court repeatedly suggested that Campbell's

ineffective-assistance-of-counsel claims had no legal merit.

From this tentative legal conclusion one may infer that the

PCHA court assumed that Campbell's trial counsel properly

informed him of his right to testify. Otherwise, the legal

conclusion would be invalid, because Campbell's lawyer

would have deprived him of his constitutionally guaranteed

right to choose whether to testify on his own behalf at trial.

See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("[T]he

accused has the ultimate authority to make certain

fundamental decisions regarding the case, [including] as to

whether to . . . testify in his or her own behalf."); see also

Rock v. Arkansas, 483 U.S. 44, 49-56 (1987). As Marshall,

459 U.S. at 433, teaches, we cannot assume that a state

court would have so grossly misapplied our federal

jurisprudence as to have reached the legal conclusion it did

based on a factual finding to the contrary.

Carrying through the logic from the PCHA court's

suggested legal conclusion and the implicit factual

16

conclusion that drives it, we can infer that the PCHA court

credited the testimony of Campbell's trial counsel over

Campbell. If the PCHA court had credited Campbell's

testimony, its implicit factual finding that Campbell was

notified of his right to testify would be irrational. It would

mean that the PCHA court found Campbell more credible,

but understood him to say the opposite of what he said.

A review of our precedent supports this mode of analysis.

In McAleese v. Mazurkiewicz, 1 F.3d 159, 171-72 (3d Cir.

1993), for example--a habeas case based on a ineffective-

assistance-of-counsel claim--the defendant contended that

his trial counsel had failed to obtain certain long-distance

phone records that would have greatly bolstered his alibi

defense. At a post-conviction hearing, the defendant

testified that he had told his trial counsel that such records

could be obtained from the phone company and that he

had asked his lawyer to obtain them. See id. at 172. His

trial counsel then testified that he did not know that the

telephone company kept or could have produced such

records. See id. "Faced with this conflicting evidence," the

state post-conviction relief court hearing this evidence failed

to resolve explicitly the credibility dispute between the

defendant and his trial counsel. Id. The court did, however,

"decide that trial counsel had thoroughly investigated and

considered all the areas about which [the defendant]

complained post-verdict." Id. In reviewing the state court's

legal conclusion, we held that "[i]mplicit in this conclusion

is a finding that trial counsel's testimony was credible. This

finding is presumptively correct and should not be

disturbed by a federal court on habeas review if it is fairly

supported by the record." Id. (citing, inter alia, LaVallee v.

Delle Rose, 410 U.S. 690, 694-95 (1973) (per curiam)); see

also Ahmad, 782 F.2d at 413 (reaching a similar conclusion

on similar facts).

In sum, under the Supreme Court precedent articulated

in Marshall and LaVallee, and pursuant to our cases such

as McAleese and Ahmad, although the PCHA court did not

make its findings of fact explicit, we are bound by its

implicit resolution of the credibility dispute between

Campbell and his trial counsel. The PCHA court should

have made its factual findings explicit, and it would have

17

been salutary for the Superior Court to have taken the

PCHA court to task for not doing so. Cf. Commonwealth v.

Townsell, 379 A.2d 98, 100 n.6 (Pa. Super. Ct. 1977)

(noting "with disapproval" a PCHA court's failure to make

its findings of fact explicit in the post-conviction relief

hearing record); see also Commonwealth v. Elliot , 466 A.2d

666, 668 (Pa. Super. Ct. 1983) (noting that "[o]n prior

occasions," and in the instant appeal, the Superior Court

"ha[d] remanded for findings of fact where the P.C.H.A.

hearing court failed to resolve conflicts in evidence or

determine issues of credibility").

At all events, we hold that the PCHA court made a

sufficient determination of the factual issue on which

Campbell's habeas appeal turns. AEDPA dictates that we

must presumptively defer to this determination absent clear

evidence to the contrary. See 28 U.S.C.S 2254(e)(1). As

Campbell has introduced no such clear evidence, we

further hold that ordering a new evidentiary hearing in this

situation would be inappropriate. See supra Section II.A

(discussing the circumstances in which a 28 U.S.C.

S 2254(e)(2) evidentiary hearing is appropriate).

III. The Merits of Campbell's Substantive Habeas

Claim in Light of the PCHA Court's Findings

In turning to the merits of Campbell's substantive habeas

claim, we defer to the PCHA court's finding of fact that

Campbell's trial counsel told Campbell that it was

Campbell's choice whether to testify. The Superior Court

hearing Campbell's nunc pro tunc appeal reviewed the

evidence that the PCHA court implicitly credited--namely,

that Campbell's trial counsel "absolutely" told Campbell it

was Campbell's decision whether to testify, see supra note

2--and reached the legal merits of Campbell's right-to-

testify/ineffective-assistance claim. It held that the legal

assistance given by Campbell's counsel had not been

ineffective because Campbell "made a decision not to testify

after full consultation. . . . [and] it appears that counsel

had a reasonable basis designed to further appellant's

interests, for not calling him to testify." Commonwealth v.

Campbell, No. 1010 Philadelphia 1987, at 8 (Pa. Super. Ct.

Jul. 26, 1988) (citations omitted). On habeas review, 28

18

U.S.C. S 2254(d) governs our review of the state court's

substantive legal conclusion.

As amended by AEDPA, 28 U.S.C. S 2254(d), provides

that

(d) 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, o r

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.A. S 2254(d) (West Supp. 1999).

We address these two potential grounds for habeas relief

in reverse order. At the PCHA hearing, Campbell's trial

counsel testified unequivocally that he informed Campbell

of his right to testify and that he assured him it was

Campbell's ultimate decision, alone, whether to testify. See

supra note 2. Campbell testified to the contrary. See id. A

reasonable fact-finder could discount Campbell's testimony

and credit his trial counsel's. Therefore, the state PCHA

court did not make an unreasonable determination of the

facts in light of the evidence presented when it implicitly

reached that conclusion. Accordingly, habeas relief is

unwarranted under 28 U.S.C. S 2254(d)(2).

We next turn our attention to 28 U.S.C. S 2254(d)(1). In

reaching its legal conclusion, the Superior Court applied

the federal standard regarding ineffective-assistance-of-

counsel claims articulated in Strickland v. Washington, 466

U.S. 668, 687-96 (1984). Based on the facts presented it

concluded that Campbell's trial counsel did not render

ineffective assistance. The Court reasoned, appropriately,

that Campbell's trial counsel did not render ineffective

19

assistance by warning him that if he were to take the

witness stand and recant his remorse-filled confession, he

would likely alienate the jury. If anything, this was sound

advice. The factual record to which we must defer

demonstrates that this advice went no further than

counseling, and that trial counsel did not suggest to

Campbell that he could not testify, even if he chose to do

so.

On these facts, the Superior Court applied federal law in

a reasonable manner in concluding that Campbell's trial

counsel did not render ineffective assistance under the

"objective reasonableness" standard articulated by the

Supreme Court in Strickland. See, e.g. , United States v.

Teague, 953 F.2d 1525, 1534-35 (11th Cir. 1992) (holding

that counsel's performance was not constitutionally

deficient, in case in which defendant was advised of his

right to testify, but was advised that he should not exercise

that right because it would be unwise and unnecessary). As

this decision was not "contrary to . . . clearly established

Federal law," or an "unreasonable application of " such law,

28 U.S.C. S 2254(d)(1), habeas relief underS 2254(d)(1) is

unwarranted, see Matteo v. Superintendent, SCI Albion, 171

F.3d 877, 888-91 (3d Cir. 1999) (en banc) (establishing the

analytical framework, under AEDPA, for reviewing the legal

conclusions reached by state courts based on federal law).

The District Court's order denying habeas relief will

therefore be affirmed.

BY THE COURT:

/s/ Edward R. Becker

________________________

Chief Judge

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20