Brown v. WENEROWICZ

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3203

No. 10-3516

___________

ANTHONY T. BROWN

v.

*MICHAEL WENEROWICZ, SUPERINTENDENT,

SCI GRATERFORD; *RAYMOND LAWLER,

SUPERINTENDENT, SCI HUNTINGDON;

DISTRICT ATTORNEY OF THE COUNTY OF

PHILADELPHIA; ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA,

Appellants

*(Amended per Clerk's Order of 12/15/10)

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cv-01098)

District Judge: Honorable Louis H. Pollak

___________

Argued September 20, 2011

Before: FISHER, HARDIMAN and GREENAWAY, JR.,

Circuit Judges.

(Filed: December 8, 2011)

Salvatore C. Adamo [Argued]

Suite 300

1434 Knox Avenue

Easton, PA 18040

Attorneys for Plaintiff-Appellee

Anne Palmer [Argued]

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Attorneys for Defendant-Appellants

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Anthony Brown was convicted in Pennsylvania state

court of first-degree murder, reckless endangerment, and

possession of an instrument of crime. After exhausting his

state court remedies, Brown filed a federal habeas petition

pursuant to 28 U.S.C. § 2254(d)(1), claiming that the decision

of the Pennsylvania Superior Court was an unreasonable

application of Strickland v. Washington, 466 U.S. 668 (1984).

The United States District Court for the Eastern District of

Pennsylvania granted Brown‘s petition following an

2

evidentiary hearing. The Commonwealth appeals, claiming

that under the stringent requirements of the Anti-Terrorism

and Effective Death Penalty Act of 1996 (AEDPA), Brown

was entitled to neither a federal evidentiary hearing nor the

issuance of the writ.

I

A

On September 7, 1998, the Rorie family attended a

Labor Day celebration at the 600 block of Conestoga Street in

Philadelphia, Pennsylvania. As the block party ended

sometime after 8:00 p.m., the matriarch of the family, Frances

Rorie, began to sweep the sidewalk while thirty others

cleaned. Suddenly, Tiffany Thompson ran toward the crowd

yelling ―they‘re coming, they got a gun.‖ A vehicle rounded

the corner of Poplar and Conestoga Streets, and four men

emerged from the car. One man fired a gunshot into the air.

As Frances Rorie tried to find shelter behind a car, a second

shooter pointed an Uzi pistol at the Rorie home and fired

seventeen shots into the crowd. One shot hit Frances in the

head, killing her instantly.

Frances Rorie‘s murder capped a day of heated

confrontation between neighbors. The trouble began in the

morning, when children from Conestoga Street argued with

children from Girard Avenue. The mother of some of the

Girard Avenue children was Kim Brown, sister of Appellee

Anthony Brown. Accompanied by her friend, Sharon Carter,

Kim approached Frances‘s granddaughter, Tamika

Thompson, who referred the women to her mother, Alanda

Rorie, at 647 Conestoga Street. There, Kim and Sharon

argued with Alanda, Frances, and Yvonne Rorie.

3

The argument at Alanda Rorie‘s home did not relieve

the tensions between the families. Sometime between 3:00

and 4:00 p.m., Kim Brown‘s son Hakim threw a rock at

Yvonne Rorie‘s son Rafeek. The Rories then grabbed

brooms and marched to the corner of Conestoga and Girard.

The Browns in turn wielded knives while their friend,

Kareema Latimer, threatened to ―get her .357 and spray the

whole corner.‖ A few hours after Latimer issued her threat,

Tamika and Yvonne spotted Appellee Anthony Brown,

Anthony Fingers, Kevin Johnson, and two other men standing

at the corner with Kareema Latimer, who pointed at the Rorie

home.

According to Yvonne Rorie, the shooting started

fifteen to twenty minutes later. Tamika Thompson later

testified that she did not know precisely how much time

elapsed, but knew it was more than five minutes later. A

police radio call reported the shooting at 8:23 or 8:24 p.m.

When police arrived, Tamika and Yvonne reported

that they had seen the men standing at the corner, that at least

two of them had guns, and that one had pointed a gun at the

Rorie home before he started shooting. Tamika described the

assailant as tall, light-skinned, skinny, and about 22 years-old.

She said he was wearing a blue cap with a red brim, a white

shirt, and blue jean shorts, and driving a four-door gray car.

Yvonne described the shooter as tall, light-skinned, and

wearing a white shirt, blue or black shorts, and a white

baseball cap. Yvonne also identified the shooter as Anthony

Brown. Three days later, both Tamika and Yvonne picked

Anthony Brown out of a photo array. At trial, Tamika again

identified Anthony Brown as one of the shooters.

4

Tiffany Thompson, who saw the gunmen approaching,

told police the shooter lived at 5408 Girard Avenue. The

police promptly executed a search warrant for that address

and discovered some clothing matching the descriptions

Tamika and Yvonne had provided, including a white shirt,

dark blue jean shorts, brown boots, and an Atlanta Braves

cap. They also found a photo of Anthony Brown wearing the

same clothes, his mail, and a traffic citation issued on the day

of the shooting. A warrant issued for Brown‘s arrest, and he

surrendered later that week.

B

At trial, Brown presented a misidentification defense

and an alibi defense. His misidentification defense relied on

the testimony of Frances Rorie‘s grandson, Gary Jones, and

Rorie‘s daughter, Timmsel.

Contrary to the testimony of Tamika Thompson and

Yvonne Rorie, Gary Jones testified on direct examination that

the shooter was short, dark-skinned, and wearing a plaid shirt,

blue shorts, black Timberland boots, and a red and blue

Atlanta Braves cap. He described another man (not the

shooter) as a light-skinned, bald, mustachioed man, who wore

a tee-shirt, blue shorts, and Reebok sneakers. On cross-

examination, the prosecution impeached Jones with his prior

statement to police, which was not only contrary to his

testimony on direct examination, but also similar to the

descriptions given by Tamika Thompson and Yvonne Rorie

shortly after the shooting. In that statement, Jones described

the shooter as tall and light-skinned, wearing an Atlanta

Braves cap, light blue shorts, a white shirt, and black boots.

5

Timmsel Rorie testified on direct examination that she

initially described the shooter to police as tall, light-skinned,

and wearing a red plaid shirt. She identified another man (not

the shooter) as a tall, light-skinned man of 18 or 19, wearing a

white shirt and long blue jeans. According to Timmsel, that

man was Anthony Brown. On cross-examination, the

prosecution impeached Timmsel with the fact that just days

after the shooting she identified Anthony Brown as the

shooter. Moreover, Timmsel eventually made an in-court

identification of Anthony Brown as the shooter and testified

that she did not correct her initial misstatement to the police

because she wanted her boyfriend to kill Brown to avenge her

mother‘s murder.

Brown‘s alibi defense relied on the testimony of

Lynnette Bright, who was the college roommate of Brown‘s

cousin, Tiyana Miller. According to Bright, she and Miller

went to a TGI Friday‘s restaurant at 17th Street and Benjamin

Franklin Parkway to buy take-out food at approximately 7:30

p.m. on the night of the shooting. Bright testified that about

fifteen minutes after they arrived, Miller noticed Anthony

Brown walking toward the front of the restaurant. Miller and

Brown spoke for a few minutes before Brown returned to his

table. Bright testified that she and Miller were seated near the

front door of the restaurant, that they waited a long time to get

their food, and that they left between 8:15 and 8:20 p.m.

Bright stated that she never saw Brown leave.

On cross-examination, Bright admitted that she knew

several of Brown‘s relatives. She was impeached with

inconsistent statements regarding the time she arrived at the

restaurant, as well as with her failure to cooperate with the

District Attorney‘s investigation. Bright also was unable to

describe what Brown was wearing at the restaurant. Finally,

6

Bright eventually admitted that she lied to a defense

investigator when she told him that she saw Brown eating

with his friends when she left the restaurant and she never

saw Brown seated at his table.

Brown‘s cousin Tiyana Miller corroborated Bright‘s

testimony that they went to the TGI Friday‘s between 7:15

and 7:30 p.m. According to Miller, it already was dark when

they left for the restaurant, and they waited fifteen to twenty

minutes before placing their order. While they waited, Miller

saw Brown emerge from the dining area to use the phone, 1

and she chatted with him. Miller testified that she and Bright

waited about an hour for their food and left at approximately

8:20 p.m. She stated that when she left, Brown still was

seated with Anthony Fingers, Kevin Johnson, and two

women.

Miller was impeached with evidence that after the

shooting she returned to the restaurant to ask if they had a

video surveillance system that could pinpoint when Brown

left on the night of the murder. Her testimony was also

undermined because she neither contacted family members to

advise them that she had seen Brown that night, nor contacted

the police with her information or responded to letters from

the District Attorney. Finally, like Bright, she could not

describe what Brown was wearing at the restaurant.

Kevin Johnson, who allegedly accompanied Brown to

the restaurant, also testified for the defense. According to

1

Kim Brown had called her brother, Anthony Brown,

and he returned her call from a payphone at the restaurant.

Kevin Johnson later testified that Brown told him the phone

call concerned the dispute at Conestoga and Girard.

7

Johnson, they arrived at TGI Friday‘s before 7:00 p.m., while

it was still daylight, and left after it was dark. He testified

that they were seated on the second floor, not in the bar area

where Bright and Miller could have seen them.

Finally, Brown testified in his own defense. Brown

told the jury that on the day of the murder, he was driving to a

different TGI Friday‘s when he received a traffic citation,

which lists the time of the stop as 6:41 p.m. Brown gave the

officer an alias and an incorrect address because he often

violated traffic laws and feared being arrested. According to

Brown, he arrived at the first TGI Friday‘s with Kevin

Johnson, Anthony Fingers, and three women they met that

afternoon, but it was crowded, so they decided to go to the

TGI Friday‘s on the Parkway instead, arriving at

approximately 7:10 to 7:15 p.m. After they were seated,

Brown saw Miller and Bright near the door. He talked to

them before his food arrived and eventually left the restaurant

at 8:45 p.m.2

Brown testified that after leaving the restaurant, he,

Anthony Fingers, and Kevin Johnson drove to Johnson‘s

automotive detail shop at 59th and Race Streets, where they

spent about ten minutes. Brown claimed they then drove

home to Girard Avenue, where he found police already

gathered.

2

Although Brown later conceded on collateral review

that he was given a receipt for his bill at TGI Friday‘s, he

never offered it into evidence to corroborate when he left the

restaurant.

8

C

Brown was represented at trial by attorney Tariq El

Shabazz. When El Shabazz rose to call the defense‘s alibi

witnesses, the prosecution objected because El Shabazz had

failed to file a notice of alibi as required under Pennsylvania

law. See Pa. R. Crim. P. 567. El Shabazz initially claimed

that he had filed the notice, but later admitted that he had not.

Notwithstanding El Shabazz‘s failure to file a notice of alibi,

the trial court allowed Bright, Miller, and Johnson to testify

because the prosecution had received written statements from

them. But the trial court excluded two alibi witnesses who

worked at TGI Friday‘s: manager Andre Osborne and

waitress Stacy Szmyt.

The jury convicted Brown of all charges. After his

post-trial motions were denied, Brown raised several issues

on direct appeal, including that counsel was ineffective for

failing to file a notice of alibi. The Superior Court dismissed

the claims without prejudice to Brown‘s right to raise them on

collateral review. The Pennsylvania Supreme Court

subsequently denied Brown‘s petition for allowance of

appeal.

D

Brown filed a petition for collateral review under

Pennsylvania‘s Post-Conviction Relief Act (PCRA), raising

the same issues he raised on direct appeal. Brown later filed a

supplement to the petition, arguing for the first time that his

counsel was ineffective for failing to present the testimony of

Malik Easley, an alleged eyewitness to the shooting.

9

Attached to Brown‘s PCRA petition were two witness

statements and three affidavits further supporting his alibi.

The witness statements were from the two witnesses who had

not been permitted to testify at trial: Andre Osborne and

Stacy Szmyt. Osborne confirmed he was a manager at TGI

Friday‘s on the night of the shooting and that he saw Brown

with two other men and some women at Table 307. Osborne

stated that he remembered them because they were loud and

because he suspected they might not pay their bill. Osborne

was unsure what time the group left but remembered that the

sun had already set. Szmyt stated that she waited on Table

307 that night and vaguely remembered serving a rowdy

group. She offered no information about when the group

departed.

The three affidavits supported Brown‘s claim that his

counsel was ineffective. Brown‘s father, Arthur Boyer,

attested that he told El Shabazz several times prior to trial that

alibi witnesses were available and asked if El Shabazz had

interviewed the waitress at the restaurant. El Shabazz replied

that he was ―working on it.‖ In a second affidavit, Brown

claimed he informed El Shabazz of his alibi, gave him the

names of his dinner companions, and told him their waitress‘s

name was Stacy. Brown claimed that El Shabazz: (1) never

interviewed any of the diners; (2) hired an investigator to

locate witnesses but failed to pay the fee; and (3) hired a new

investigator only on the eve of trial. The new investigator,

Brian Grevious, stated in an affidavit that he was retained

three days prior to trial and that he located Osborne and

Szmyt and took their statements.

The PCRA court dismissed Brown‘s petition for

collateral relief. Commonwealth v. Brown, C.P. 9810–0366,

at *1 (Pa. Comm. Pleas Ct. June 6, 2008). Citing both

10

Strickland v. Washington and state law precedents, the court

rejected Brown‘s ineffective assistance claim. Id. at *5–17.

The court reasoned that El Shabazz‘s performance was not

deficient because he did not learn of the two alibi witnesses

until the sixth day of trial. Id. at *7. The court also

concluded that the absence of Osborne‘s and Szmyt‘s

testimony did not prejudice Brown because, even assuming

its relevancy, it would have been ―cumulative‖ and

―unnecessary.‖ Id. at *8.

Brown appealed to the Pennsylvania Superior Court,

which affirmed. Commonwealth v. Brown, No. 2271 EDA

2005, at *1 (Pa. Super. Ct. Apr. 9, 2009). The Superior Court

reasoned that Brown had failed to show that the alibi

witnesses were available to testify at trial. Id. at *10–11.

Alternatively, the Superior Court concluded that even had El

Shabazz been aware of the witnesses, their testimony would

have been ―merely cumulative.‖ Id. at *12.

While Brown‘s appeal was pending in the Superior

Court, he filed a petition for writ of habeas corpus in the

United States District Court for the Eastern District of

Pennsylvania. Following the Superior Court‘s affirmance, the

Magistrate Judge conducted an evidentiary hearing regarding

Brown‘s ineffective assistance of counsel claim.

The evidentiary hearing revealed that although he had

hired an investigator, El Shabazz never received any

information because he failed to pay the bill. Brown v.

Wakefield, No. 07-1098, 2010 WL 2606443, at *12 (E.D. Pa.

Jan. 28, 2010). El Shabazz then hired Grevious ―less than

one week prior to the start of trial.‖ Id. at *9. The night

before El Shabazz brought Szmyt and Osborne to court,

11

Grevious informed El Shabazz that he had found them and

they were ―ready and willing to testify.‖ Id.

Osborne‘s and Szmyt‘s testimony at the federal

evidentiary hearing added little to the witness statements they

had submitted to the state courts. Osborne remembered that

he was worried that Brown and his party might not pay their

bill, that they eventually paid, and that it was ―dark‖ when

they left. Id. at *9–10. Szmyt reaffirmed that her prior

statements were her true recollections of the events of that

night, but she could ―not really‖ recall the events by the time

of the hearing.

El Shabazz testified that he failed to submit a notice of

alibi for Osborne and Szmyt, as well as for an additional

witness, Malik Easley. Id. at *12. El Shabazz stated that he

would not have called Easley to testify because of strategic

concerns,3 but admitted that his failure to file a notice for

Szmyt and Osborne impaired his defense of Brown. Id.

The Commonwealth also submitted evidence at the

hearing. Philadelphia Police Detective John McDermott

stated that he had driven the route from TGI Friday‘s to the

corner of Conestoga and Girard and that the trip took twenty-

one minutes in moderate traffic. Id. at *13. A diversion to

3

If called at trial, Easley would have testified that he

was present during the murder and that, although he did not

clearly see the shooting, he knew Brown was not the

assailant. Id. at *10. El Shabazz testified he would not have

called Easley because his testimony would have corroborated

some details of the descriptions of the shooter given by

prosecution witnesses and would have placed a car similar to

Brown‘s at the scene. Id.

12

Johnson‘s auto shop added only one or two minutes. Id.

Using an almanac, Detective McDermott testified that the sun

set on September 7, 1998, at 7:23 p.m. and that the end of

―civil twilight‖ was 7:50 p.m. Id.

The Magistrate Judge recommended granting Brown‘s

petition. According to the Magistrate Judge, El Shabazz‘s

mistakes prejudiced Brown because the ―evidence of guilt

was hardly overwhelming,‖ no murder weapon was ever

found, and descriptions of the assailant were inconsistent. Id.

at *15. He also noted that Osborne would have been the only

disinterested witness to testify that Brown left the restaurant

when it was ―dark,‖ which would have corroborated Bright‘s

and Miller‘s testimony that Brown left the restaurant too late

to be the shooter. Id.

The District Court adopted the Magistrate Judge‘s

recommendation and granted Brown‘s petition, largely

because it agreed that Osborne‘s testimony corroborated

Brown‘s alibi. Brown v. Wakefield, No. 07-1098, 2010 WL

2596900, at *10 (E.D. Pa. June 24, 2010). Noting that the

sun set at 7:23 p.m. and the end of civil twilight was 7:50

p.m., the District Court concluded that Osborne‘s testimony

that Brown left TGI Friday‘s when it was ―dark‖ placed

Brown at the restaurant at least sometime between 7:23 and

7:50 p.m. Id. Because Yvonne Rorie testified that she saw

Kareema Latimer meet with Brown fifteen to twenty minutes

before the shooting, the District Court concluded that Brown

would have had to be at the scene at about 8:00 p.m. Id.

Brown testified that it took him fifteen minutes to drive to the

auto shop and that he spent ten minutes there. And Detective

McDermott testified at the evidentiary hearing that a similar

trip took twenty-one minutes. Id. at *11. Based on that

testimony, the District Court reasoned that ―a jury could have

13

concluded from Osborne‘s testimony, had it been presented at

trial, that [Brown] did not leave until twilight had ended, 7:50

p.m., a time when [Brown] would likely have been unable to

reach the scene of the crime in sufficient time to meet with

Kareema Latimer.‖ Id. Moreover, Osborne‘s statement that

Brown left when it was ―dark‖ corroborated Miller‘s,

Bright‘s, and Brown‘s testimony that Brown left after 8:15

p.m. Id.

The District Court did not adopt the Magistrate

Judge‘s finding that Osborne had recalled Brown leaving

when it was ―nighttime, not just twilight,‖ because Osborne

testified only that it was ―definitely dark outside.‖ Id. The

District Court also declined to adopt the Magistrate Judge‘s

conclusion that El Shabazz was aware of alibi witnesses

before the trial started. Id. This disagreement between the

Magistrate Judge and the District Court was immaterial,

however, because El Shabazz should have been aware of the

witnesses. Id. at *12–13. Finally, the District Court adopted

the conclusion that Osborne and Szmyt were ―ready and

willing to testify,‖ based on the hearing testimony of El

Shabazz, Grevious, Osborne, and Szmyt. Id. at *13.

In light of these factual findings, the District Court

held that ―the PCRA court‘s application of Strickland, and the

Superior Court‘s affirmance, [were] unreasonable.‖ Id. at

*14. In doing so, the Court reached two overarching

conclusions. First, the state courts applied the wrong standard

for determining whether El Shabazz was ineffective because

they did not sufficiently consider whether he conducted a

diligent investigation into possible alibis for Brown. Id. at

*14–16. Second, the state courts unreasonably concluded that

Brown was not prejudiced by his counsel‘s mistakes. The

state courts failed to properly consider whether there was a

14

reasonable probability that, but for counsel‘s unprofessional

errors, the result of the proceedings would have been

different. Such a probability existed, according to the District

Court, because Osborne was a disinterested witness who

―would have bolstered the credibility of the petitioner and

other alibi witnesses.‖ Id. at *17. Regarding Osborne‘s

testimony that it was ―dark‖ when Brown left the restaurant,

the Court wrote: ―while not definitely proving that [Brown]

could not have been at the scene of the crime . . . [it] puts into

serious question whether [Brown] had enough time to make it

. . . to the scene of the shooting . . . .‖ Id. The District Court

also concluded that the state courts incorrectly regarded

Osborne‘s and Szmyt‘s testimony as ―cumulative.‖ Id. at

*18. According to the Court, ―where defense witnesses

[were] impeached for having a close relationship to [Brown],

and prosecution eyewitnesses had a conflict with [Brown‘s]

family, the existence of disinterested witnesses corroborating

[Brown‘s] alibi could weigh heavily in the jury‘s decision of

which set of witnesses to credit.‖ Id. Therefore, ―a

reasonable probability exist[ed] that, if the jury had heard

Osborne‘s testimony, the jury would have found reasonable

doubt.‖ Id.

The Commonwealth raises two issues on appeal. First,

it claims the District Court erred when it held an evidentiary

hearing because Brown was not diligent in developing the

factual record in state court. Second, it argues the District

Court erred when it concluded that the state courts

unreasonably applied federal law in denying Brown‘s

petition.

15

II

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. §§ 2241 and 2254(a). Our jurisdiction

lies under 28 U.S.C. §§ 1291 and 2253(a).

―We have plenary review over the District Court‘s

grant of habeas corpus.‖ Washington v. Sobina, 509 F.3d

613, 618–19 (3d Cir. 2007) (citing Rolan v. Vaughn, 445 F.3d

671, 577 (3d Cir. 2006)). ―Accordingly, we will ‗review the

state courts‘ determinations under the same standard that the

District Court was required to apply,‘‖ which are the

standards set forth in AEDPA. Lewis v. Horn, 581 F.3d 92,

100 (3d Cir. 2009) (quoting Thomas v. Horn, 570 F.3d 105,

113 (3d Cir. 2009)).

A federal court may not grant habeas relief to a person

in state custody whose claims were adjudicated on the merits

unless that adjudication:

(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).

16

III

As a threshold matter, the Commonwealth claims the

District Court should not have granted Brown an evidentiary

hearing. We agree based on Cullen v. Pinholster, 131 S. Ct.

1388 (2011), which the Supreme Court decided after the

District Court ruled in this case. In Pinholster, the Supreme

Court explained that: ―review under § 2254(d)(1) is limited

to the record that was before the state court that adjudicated

the claim on the merits.‖ Id. at 1398.

Because we find Pinholster controlling, we review it in

some detail. Pinholster was convicted in California state

court of first-degree murder and sentenced to death. He

sought post-conviction relief, claiming his counsel was

ineffective at the penalty phase by failing to investigate or

present mitigating evidence, including evidence that

Pinholster suffered from mental disorders. Id. at 1396. The

psychiatrist Pinholster‘s counsel consulted before trial, Dr.

Stalberg, concluded that Pinholster did not suffer from a

mental disorder. Not surprisingly, Dr. Stalberg was not called

to testify at Pinholster‘s trial. Id. On collateral review,

Pinholster supported his ineffective assistance claim with

academic, medical, and legal records, as well as declarations

from family members, one of his trial attorneys, and a

psychiatrist, all of which suggested Pinholster suffered from

bipolar mood and seizure disorders. Id. Pinholster‘s petition

was denied. Id.

Pinholster filed a federal habeas petition in which he

reiterated his ineffective assistance claim and added new

allegations that his counsel failed to provide Dr. Stalberg with

enough information to make an accurate report. Id. In

support of Pinholster‘s new allegations, Dr. Stalberg declared

17

that had he known of evidence gathered after trial, he would

have conducted ―further inquiry‖ before concluding that

Pinholster did not suffer from a mental disorder. Id.

The federal district court granted Pinholster an

evidentiary hearing. Id. Before the hearing, however, Dr.

Stalberg averred that the new evidence did not change his

diagnosis. Id. at 1397. Consequently, Pinholster did not call

him to testify at the hearing, opting instead for new experts

whose testimony would be more favorable to him. Id. The

state also offered evidence at the federal evidentiary hearing,

calling a psychiatrist who denied that Pinholster suffered

from a mental disorder. Id. The district court granted

Pinholster habeas relief, and the Court of Appeals for the

Ninth Circuit ultimately affirmed in an en banc opinion. See

Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc).

After considering evidence from the evidentiary hearing, the

Ninth Circuit concluded that the California Supreme Court

had unreasonably applied Strickland. Id. at 666–84.

The Supreme Court reversed, holding that ―[i]f a claim

has been adjudicated on the merits by a state court, a federal

habeas petition[er] must overcome the limitation of

§ 2254(d)(1) on the record that was before that state court.‖

Pinholster, 131 S. Ct. at 1400 (footnote omitted). The Court

reasoned that the purpose of 28 U.S.C. § 2254 is ―to channel

prisoners‘ claims first to the state courts‖ and that ―[i]t would

be contrary to that purpose to allow a petitioner to overcome

an adverse state-court decision with new evidence introduced

in a federal habeas court and reviewed by that court in the

first instance effectively de novo.‖ Id. at 1398–99. The Court

was puzzled by ―the notion that a state court can be deemed

to have unreasonably applied federal law to evidence it did

not even know existed.‖ Id. at 1399 n.3.

18

In light of Pinholster, district courts cannot conduct

evidentiary hearings to supplement the existing state court

record under 28 U.S.C. § 2254(d). Otherwise, federal habeas

petitioners would be able to circumvent the finality of state

court judgments by establishing a new factual record. This

would contravene AEDPA, which requires petitioners to

diligently present the facts in state court before proceeding to

the federal courthouse. As the Supreme Court reaffirmed:

―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 court proceedings.‖ Pinholster, 131

S. Ct. at 1401 (citing Williams v. Taylor, 529 U.S. 420, 437

(2000)).

As in Pinholster, here Brown‘s state petition for post-

conviction relief was denied on the merits, and he sought

federal relief under 28 U.S.C. § 2254(d). Like Pinholster,

Brown sought to supplement the record with evidence he

never presented to the state courts. The Magistrate Judge

conducted an evidentiary hearing to explore Brown‘s

ineffective assistance claim, which essentially resulted in a de

novo trial, as both sides marshaled new evidence for the

federal hearing. This was contrary to AEDPA, which obliged

the District Court to base its review only on the evidence

Brown presented in state court. Therefore, we hold that the

District Court erred in conducting an evidentiary hearing.4

4

Although the parties‘ arguments regarding the

propriety of the federal evidentiary hearing focus on 28

U.S.C. § 2254(e)(2), Pinholster renders that provision

inapplicable to this case. When a prisoner has ―failed to

develop the factual basis of a claim in State court

proceedings,‖ § 2254(e)(2) bars a federal court from holding

19

IV

Having determined that the federal evidentiary hearing

was improper, we consider Brown‘s habeas petition in light

of the record he made in the Pennsylvania courts.

Brown claims the denial of his petition involved an

―unreasonable application of[] clearly established Federal

law, as determined by the Supreme Court of the United

an evidentiary hearing unless certain statutory requirements

are met. Pinholster, 131 S. Ct. at 1400 n.4.

Prior to AEDPA, ―the decision to grant an evidentiary

hearing was generally left to the sound discretion of district

courts.‖ Schriro v. Landrigan, 550 U.S. 465, 473 (2007)

(citing Brown v. Allen, 344 U.S. 443, 463–64 (1953), and

Townsend v. Sain, 372 U.S. 293, 313 (1963)). ―AEDPA,

however, changed the standards for granting federal habeas

relief.‖ Id. at 473. Accordingly, we previously recognized

that so long as a petitioner does not run afoul of § 2254(e)(2),

―the district court [is] permitted under the AEDPA, though

not required, to grant an evidentiary hearing.‖ Goldblum v.

Klem, 510 F.3d 204, 220–21 (3d Cir. 2007) (citing Campbell

v. Vaughn, 209 F.3d 280, 286–87 (3d Cir. 2000)). This is no

longer the case in light of Pinholster and our holding today.

Although it speaks directly to the unavailability of

evidentiary hearings to adjudicate claims brought under §

2254(d), the exact scope of § 2254(e)(2) is unclear after

Pinholster. See Pinholster, 131 S. Ct. at 1401 n.8 (―We see

no need in this case to address the proper application of §

2254(e)(2).‖). It is clear, however, that our jurisprudence

applying § 2254(e)(2) remains applicable ―where §

2254(d)(1) does not bar federal habeas relief.‖ Id. at 1401.

20

States.‖ 28 U.S.C. § 2254(d)(1). Specifically, he contends it

was unreasonable for the Superior Court to conclude that El

Shabazz‘s failure to develop an alibi defense did not warrant

a new trial based on Strickland. We disagree.

In determining whether a state court unreasonably

applied federal law under 28 U.S.C. § 2254(d)(1), ―a habeas

court must determine what arguments or theories supported or

. . . could have supported, the state court‘s decision; and then

it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with

the holding in a prior decision of [the Supreme Court].‖

Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The

question is not whether the state court‘s holding was wrong,

but whether it was reasonable. Indeed, ―even a strong case

for relief does not mean the state court‘s contrary conclusion

was unreasonable.‖ Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)).

There is no dispute here as to the relevant clearly

established law. Under Strickland‘s familiar two-part test, we

consider whether counsel‘s performance was deficient and, if

so, whether it prejudiced Brown. Strickland, 466 U.S. at 687.

―The standards created by Strickland and § 2254(d) are both

‗highly deferential,‘ and when the two apply in tandem, the

review is ‗doubly so.‘‖ Harrington, 131 S. Ct. at 788

(citations omitted). Accordingly, we are ―not authorized to

grant habeas corpus relief simply because we disagree with

the state court‘s decision or because we would have reached a

different result if left to our own devices.‖ Werts v. Vaughn,

228 F.3d 178, 197 (3d Cir. 2000) (citing Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir.

1999)). The question is ―whether there is any reasonable

21

argument that counsel satisfied Strickland‘s deferential

standard.‖ Harrington, 131 S. Ct. at 788.

The Commonwealth has not challenged the District

Court‘s holding that El Shabazz was deficient, so we will

consider only whether his mistakes prejudiced Brown. To

demonstrate prejudice, Brown must establish ―a reasonable

probability that, but for counsel‘s unprofessional errors, the

result in the proceeding would have been different.‖

Strickland, 466 U.S. at 694. He ―need not show that

counsel‘s deficient performance ‗more likely than not altered

the outcome of the case‘—rather, he must show only ‗a

probability sufficient to undermine confidence in the

outcome.‘‖ Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005)

(quoting Strickland, 466 U.S. at 693–94). On the other hand,

it is not enough ―to show that the errors had some conceivable

effect on the outcome of the proceeding.‖ Harrington, 131 S.

Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel‘s

errors must be ―so serious as to deprive the defendant of a fair

trial.‖ Id. at 787–88 (citing Strickland, 466 U.S. at 687). The

likelihood of a different result must be substantial, not just

conceivable. Id.

Anthony Brown has not shown that his counsel‘s

failure to develop an alibi defense prejudiced his trial. Unlike

many criminal prosecutions, the case against Brown was not

based on circumstantial evidence. Tamika Thompson,

Timmsel Rorie, and Yvonne Rorie all witnessed the murder

and picked Brown out of a photo array. Tamika and Timmsel

testified at trial that Brown was the assailant. Just minutes

after the shooting, Tamika and Yvonne gave similar

descriptions of the assailant to police, and those descriptions

matched Brown‘s appearance. Tiffany Thompson, who saw

the men approaching, told police that the shooter lived at

22

5408 Girard Avenue, where officers recovered clothing

matching the descriptions given by Tamika and Yvonne,

along with a photograph of Brown wearing those clothes,

Brown‘s mail, and the traffic citation that Brown had received

en route to TGI Friday‘s on the night of the shooting. Tamika

also told police that the shooter drove a four-door gray car, a

description matching Brown‘s automobile. Tamika also

rebutted Brown‘s alibi by placing his car at Conestoga and

Girard at the time of the murder, rather than at TGI Friday‘s

or the auto shop.

In addition to physical evidence and eyewitness

testimony, the prosecution presented a strong motive for the

crime. The day of the murder, Brown‘s sister Kim was

involved in a heated feud with the victim and her family. A

Brown family friend, Kareema Latimer, had previously

threatened to ―spray the whole corner,‖ and she was seen, just

minutes before the murder, pointing out the Rorie home to

Anthony Brown and four other men. Kevin Johnson testified

that Kim Brown paged her brother Anthony at TGI Friday‘s

to talk about the dispute between the Rories of Conestoga

Street and the Browns of Girard Avenue, and Lynnette Bright

and Tiyana Miller claimed to have seen Brown emerge from

the restaurant to return that call on a pay phone. Although the

timeline is inexact, the shooting occurred less than an hour

later. Based on this evidence, the jury reasonably could have

concluded that Anthony Brown killed Frances Rorie in

retaliation for the dispute between the Rories and the Browns.

Nor would the excluded alibi witnesses, Osborne and

Szmyt, have rebutted the prosecution‘s case. In their witness

statements submitted to the PCRA court, Osborne and Szmyt

merely recalled that Brown was at TGI Friday‘s on the

evening of the murder, a fact the prosecution conceded

23

throughout the trial. Neither Osborne nor Szmyt remembered

when Brown departed the restaurant, and Osborne could say

only that the sun had set. The murder occurred shortly before

8:24 p.m., and Brown was seen conferring with Kareema

Latimer five to twenty minutes earlier, so Osborne‘s and

Szmyt‘s statements were consistent with the prosecution‘s

theory of the case. A jury could have determined that Brown

left the restaurant sometime after it appeared to Osborne that

the sun had set and still had time to meet with Kareema

Latimer shortly after 8:00 p.m. before opening fire around

8:23 p.m. Based on this timeline, it was not unreasonable for

the Pennsylvania Superior Court to conclude that there was

no prejudice under Strickland because the excluded testimony

would have been ―merely cumulative.‖

V

Even if the federal evidentiary hearing had been

proper, we would hold that El Shabazz‘s deficient

performance did not prejudice Brown. In holding otherwise,

the District Court‘s ―lengthy opinion . . . discloses an

improper understanding of § 2254(d)‘s unreasonableness

standard and of its operation in the context of a Strickland

claim.‖ Harrington, 131 S. Ct. at 785.

The evidence presented at the evidentiary hearing

added little to Brown‘s defense. The only addition to

Osborne‘s prior statement in state court was his recollection

that it was ―dark‖ when Brown left the restaurant. This vague

description is consistent with his prior testimony that the sun

had set. Similarly, Szmyt testified only that her prior

statement was an accurate recollection. Thus, Osborne‘s and

Szmyt‘s hearing testimony merely confirmed their state court

testimony.

24

Ironically, the Commonwealth presented the evidence

the District Court found most helpful to Brown because it

filled in some of the gaps in Brown‘s timeline. For example,

Detective McDermott stated that it took approximately

twenty-two to twenty-three minutes to make the trip from

TGI Friday‘s to the corner of Conestoga and Girard.

McDermott also testified that the sun set on September 7,

1998, at 7:23 p.m. and that the end of ―civil twilight‖ was

7:50 p.m.

But that evidence too was insufficient to establish an

alibi for Brown. Assuming Brown left the restaurant when it

was ―dark‖ between sunset (7:23 p.m.) and the end of

―twilight‖ (7:50 p.m.), he could have reached the corner of

Conestoga and Girard in time to meet with Kareema Latimer

shortly after 8:00 p.m. If he left at 7:50 p.m. and drove the

―twenty-two to twenty-three minutes‖ to the crime scene, he

would have arrived between 8:12 and 8:13 p.m., eleven or

twelve minutes before the murder.5 Witnesses testified that

the shooting started sometime ―after five minutes‖ and

perhaps ―fifteen to twenty minutes‖ later, estimates that are

far from precise. Even assuming that he left TGI Friday‘s at

7:50 p.m., Brown could have been the shooter. Moreover, a

scenario in which he left as early as 7:23 p.m.—a full twenty-

seven minutes earlier—is consistent with the record, even

after the evidentiary hearing.

Despite the equivocal nature of this evidence, the

District Court found prejudice and granted relief. In doing so,

the District Court gave too little deference to the

5

The District Court neither accepted nor rejected

Brown‘s self-serving testimony that he stopped at the auto

store, and we need not consider it.

25

Pennsylvania Superior Court. See Harrington, 131 S. Ct. at

786 (―The [court] appears to have treated the

unreasonableness question as a test of its confidence in the

result it would have reached under de novo review.‖). The

proper question was whether fair-minded jurists could agree

with the Superior Court, not whether it erred in denying

relief. ―An unreasonable application of federal law is

different from an incorrect application of federal law.‖

Pinholster, 131 S. Ct. at 1411 (citing Harrington, 131 S. Ct.

at 785). That is because ―[a] state court must be granted a

deference and latitude that are not in operation when the case

involves review under the Strickland standard itself.‖

Harrington, 131 S. Ct. at 785.

The District Court concluded that ―Osborne‘s

testimony, had it been presented at trial, would have

corroborated the testimony of other witnesses that placed

petitioner at TGI Friday‘s at a time when petitioner could not

have been at the scene of the murder in time to consult with

Kareema Latimer at approximately 8:00 p.m. or to commit

the shooting before 8:23 p.m.‖ Brown, 2010 WL 2596900, at

*18 (emphasis added). As the Commonwealth argues,

determining that Osborne‘s testimony placed Brown at the

restaurant too late for him to be the shooter required the Court

to draw several inferences in Brown‘s favor:

Even without crediting [Brown‘s] testimony

about the [ten minute] stopover, [Brown] would

have had to leave the restaurant by

approximately 7:45 p.m., a time within twilight.

As Osborne testified at the evidentiary hearing

that ―it wasn‘t light out . . . it was definitely

dark outside,‖ a jury could have concluded from

Osborne‘s testimony, had it been presented at

26

trial, that petitioner did not leave until twilight

had ended, 7:50 p.m., a time when petitioner

would likely have been unable to reach the

scene of the crime in sufficient time to meet

with Kareema Latimer. The statement that it

was ―dark‖ out also provides corroboration to

Miller‘s, Bright‘s, and [Brown‘s] testimony at

trial that [Brown] did not leave the restaurant

until after 8:15 p.m., a time when it would have

clearly been dark out.

Id. (emphasis added).

Although the District Court correctly determined that a

jury could have concluded Brown did not leave until after

7:50 p.m., or even 8:15 p.m., the critical question is whether a

reasonable jury could have concluded otherwise. The sun set

at 7:23 p.m., a half hour before ―twilight‖ ended and almost

an hour before 8:15 p.m., the time at which the District Court

assumed that it was ―clearly‖ dark outside. The District Court

provides no explanation for why it might not have been

―dark‖ at, for example, 7:30 p.m., when Brown would have

had enough time to drive to the scene of the murder, making

the uncorroborated ten-minute stop along the way. Kevin

Johnson testified at trial that it was dark by 7:00 p.m., and

Tiyana Miller testified that it was already dark when she and

Lynnette Bright walked to the restaurant between 7:15 and

7:30 p.m. In fact, the sky could have been dark even before

sunset because it rained shortly after the murder. Brown has

not, and cannot, present incontrovertible evidence that it was

―dark‖ only after 7:50 p.m. Though Osborne‘s testimony in

some scenarios might suggest that Brown could not have been

the assailant, several assumptions are necessary to reach that

conclusion. But ―Strickland places the burden on the

27

defendant . . . to show a ‗reasonable probability‘ that the

result would have been different.‖ Wong v. Belmontes, 130 S.

Ct. 383, 390–91 (2009). Brown cannot meet that burden in

light of the speculative and equivocal nature of the evidence

of record.

The District Court also emphasized that Osborne was

the only disinterested witness who placed Brown at the

restaurant. Brown, 2010 WL 2596900, at *18. In the District

Court‘s view, ―[f]inding that there is no prejudice solely

because the testimony would be in accord with the testimony

of others and thereby ‗cumulative‘ is an unreasonable

application of Strickland‘s prejudice prong when such

corroborative testimony would come from a witness that a

jury could find more credible than those who testified at

trial.‖6 Id.

6

The District Court concluded that ―the state courts

applied a blanket rule that testimony which would mirror

other witnesses was ‗cumulative‘ and could not be

prejudicial.‖ Id. at *16. We disagree that the state courts

applied such a rule. Brown‘s state habeas petition was not

denied ―merely‖ because the excluded evidence was

―cumulative.‖ Rather, it was denied because the evidence

was ―merely cumulative.‖ Id. at *14 n.9 (―As an appellant is

not prejudiced by the failure of trial counsel to present merely

cumulative evidence, an appellant‘s claim of ineffective

assistance of counsel on this basis must fail.‖ (quoting the

Superior Court opinion)). In other words, the state courts

reasoned that there was no prejudice because the excluded

evidence did not add anything material to the existing record.

Cf. Pinholster, 131 S. Ct. at 1410 (―The ‗new‘ evidence

largely duplicated the mitigation evidence at trial.‖).

28

Yet even if Osborne would have provided more

credible testimony than other witnesses who placed Brown at

the restaurant, it does not follow that there was a reasonable

probability that Osborne‘s testimony would have made a

difference. The District Court noted that ―such corroborative

testimony would come from a witness that a jury could find

more credible than those who testified at trial,‖ id. (emphasis

added), but that does not mean that there is a reasonable

probability that a jury would do so. Speculation is not

enough under AEDPA. The Superior Court‘s determination

must necessarily be unreasonable. Cf. Pinholster, 131 S. Ct.

at 1410 (―The new material is thus not so significant that,

even assuming . . . counsel performed deficiently, it was

necessarily unreasonable for the [state court] to conclude that

[there was no prejudice].‖ (emphasis added)).

Ultimately, the District Court reasoned that Osborne

―could have corroborated large portions of [Brown‘s] alibi,‖

which ―placed [Brown] at the TGI Friday‘s at a time when

[he] could not have been at the scene of the murder in time to

consult with Kareema.‖ Brown, 2010 WL 2596900, at *17–

18. Had El Shabazz presented Osborne‘s testimony to the

state court jury, it might have agreed with the District Court.

But it is equally plausible that Osborne‘s testimony would

have made no difference. Because AEDPA gives state courts

the benefit of that doubt, the judgment of the District Court

cannot stand. See Harrington, 131 S. Ct. at 780–81.

VI

For the reasons stated, we will reverse the judgment of

the District Court granting Brown‘s petition for writ of habeas

corpus.

29