Curtis Smith v. John Kerestes ( 2011 )


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  •                                                  NOT PRECEDENTIAL
    
    
    UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
    
                               ________
    
                              No. 09-2926
                               ________
    
    
                           CURTIS SMITH,
                                   Appellant
    
                                   v.
    
          JOHN KERESTES; THE DISTRICT ATTORNEY OF
         THE COUNTY OF PHILADELPHIA; THE ATTORNEY
           GENERAL OF THE STATE OF PENNSYLVANIA
    
                               ________
    
             On Appeal from the United States District Court
                for the Eastern District of Pennsylvania
                    (D.C. Civil No. 2-08-cv-00061)
                 District Judge: Hon. Berle M. Schiller
    
                               ________
    
               Submitted Under Third Circuit LAR 34.1(a)
                          February 14, 2011
    
     Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges
    
                       (Filed: February 23, 2011)
                                ________
    
    
                               OPINION
    SLOVITER, Circuit Judge.
    
           A jury found Appellant Curtis Smith guilty of attempted murder, aggravated
    
    assault, simple assault, burglary and conspiracy and not guilty on three additional
    
    charges. He was sentenced to 13.5 to 27 years imprisonment.
    
           After an unsuccessful direct appeal, Smith challenged his conviction under
    
    Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Con. Stat. §§ 9541, et seq.
    
    On appeal from a denial of collateral relief, the Superior Court found that Smith’s
    
    reliance on Commonwealth v. Johnson, 
    828 A.2d 1009
    , 1015-16 (Pa. 2003) (trial court’s
    
    reiterative jury instruction during deliberations without presence of counsel found to be
    
    presumptively prejudicial) was misplaced because Smith was not deprived of counsel at a
    
    critical stage. Unlike Johnson, where counsel objected to the instruction given, Smith’s
    
    counsel agreed that the judge could go to the deliberation room “to clarify the jurors’
    
    question, and [unlike Johnson where the trial court refused to answer one of the jury’s
    
    questions] all questions raised by the jurors were answered.” App. at 601 n.5. The
    
    Superior Court affirmed dismissal of the PCRA petition, finding that Smith’s trial
    
    counsel was not ineffective for failing to object to the trial judge’s ex parte
    
    communications with the jury because “it is axiomatic that counsel will not be considered
    
    ineffective for failing to pursue meritless claims.” App. at 601 (quotation omitted).
    
           Thereafter, Smith filed the instant writ of habeas corpus under the Antiterrorism
    
    and Effective Death Penalty Act of 1996 (“AEDPA”) in the Eastern District of
    
    Pennsylvania. The District Court, adopting the reasoning of the Magistrate Judge,
    
    dismissed all of Smith’s claims and granted a Certificate of Appealability (“COA”) on a
    
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    single issue: whether Smith’s ineffective assistance of counsel claim should be analyzed
    
    under Strickland v. Washington, 
    466 U.S. 668
     (1984), as the District Court found, or
    
    United States v. Cronic, 
    466 U.S. 648
     (1984).1 We will affirm.2
    
           Inasmuch as we write primarily for the parties, who are familiar with this case, we
    
    need not recite additional factual or procedural background.3
    
    Clearly Established Federal Law
    
           The Supreme Court has set forth a two-prong test for evaluating ineffective
    
    assistance of counsel claims. Strickland, 466 U.S. at 687; see also Werts v. Vaughn, 
    228 F.3d 178
    , 203 (3d Cir. 2000) (recognizing that the Pennsylvania standard for judging
    
    ineffectiveness claims is identical to the standard enunciated in Strickland). First, a
    
    petitioner “must show that counsel’s performance was deficient” in that it fell below an
    
    
    1
      The District Court certified for appeal a review of its determination regarding the
    applicability of Cronic. However, under AEDPA, it is not the District Court’s opinion
    we review but rather the state court’s. The State argues that the COA is invalid because
    the issue “was not presented by Smith in his federal habeas petition” and Smith has made
    no substantial showing of the denial of a constitutional right. Appellee’s Br. at 3. We
    disagree. Although Smith did not frame his ineffective assistance of counsel claim as
    falling under Cronic’s presumption of prejudice, the petition was filed pro se and should
    be construed liberally. See Holley v. Dep’t of Veteran Affairs, 
    165 F.3d 244
    , 248 (3d Cir.
    1999) (“We apply the applicable law, irrespective of whether a pro se litigant has
    mentioned it by name.”).
    2
      The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254, and we have
    jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. Our review is plenary.
    Palmer v. Hendricks, 
    592 F.3d 386
    , 391-92 (3d Cir. 2010). Under AEDPA, a petition
    may not be granted unless the state court decision “was contrary to, or 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).
    3
     We thank Peter A. Levin, appointed counsel, for his representation of Smith in this
    appeal.
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    objective standard of reasonableness under prevailing professional norms. Wiggins v.
    
    Smith, 
    539 U.S. 510
    , 521 (2003). Second, a petitioner must show that the deficiency
    
    prejudiced the defense. Strickland, 466 U.S. at 687 (prejudice shown if there is a
    
    reasonable probability that, but for counsel’s errors, the result “would have been
    
    different”).
    
           In Cronic, the Supreme Court held that a Sixth Amendment violation of the right
    
    to counsel may be found without showing prejudice where “circumstances [exist] that are
    
    so likely to prejudice the accused that the cost of litigating their effect in a particular case
    
    is unjustified.” 466 U.S. at 658. For example, automatic reversal is required where there
    
    has been a complete denial of counsel at a critical stage of the criminal proceedings. Id.
    
    at 659. The Supreme Court has clarified that the phrase “critical stage” denotes “a step of
    
    a criminal proceeding, such as arraignment, that h[olds] significant consequences for the
    
    accused.” Bell v. Cone, 
    535 U.S. 685
    , 696 (2002). This court has narrowly construed
    
    Cronic to “prescribe[] a presumption of prejudice only with regard to those critical stages
    
    of litigation where a denial of counsel would necessarily undermine the reliability of the
    
    entire criminal proceeding.” Ditch v. Grace, 
    479 F.3d 249
    , 255 (3d Cir. 2007).
    
           There are conflicting views among several courts of appeals as to whether mid-
    
    deliberation communication with the jury constitutes a critical stage under Cronic. In
    
    United States v. Toliver, 
    330 F.3d 607
    , 615 (3d Cir. 2003), this court held that a
    
    defendant was not entitled to a presumption of prejudice when the trial judge failed to
    
    consult with defense counsel before responding to a jury note. This court distinguished
    
    the situation presented in Toliver from that in other courts of appeals where
    
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    communications with the jury during deliberations have been found to constitute a critical
    
    stage:
    
                   Clarifying the substantive elements of the charged offense . . .
                   or instructing a deadlocked jury . . . affirmatively guides
                   jurors as to how they should fulfill their decisionmaking
                   function. But submitting verbatim specifically excerpted
                   record testimony that the jury itself had requested does not
                   similarly “instruct” the jury.
    
    Id. at 614; cf. French v. Jones, 
    332 F.3d 430
    , 438 (6th Cir. 2003) (holding delivery of
    
    supplemental instruction to a deadlocked jury without consulting counsel required
    
    automatic reversal under Cronic); Curtis v. Duval, 
    124 F.3d 1
    , 4 (1st Cir. 1997) (holding
    
    recalling jury for supplemental instructions on lesser offense of manslaughter after
    
    deliberations were underway was a critical stage under Cronic).
    
             The Ninth Circuit has rejected the distinction between cases involving the delivery
    
    of new, supplemental jury instructions from those in which the jury is given previously
    
    agreed-upon instructions or is read back testimony. Musladin v. Lamarque, 
    555 F.3d 830
    , 841-42 (9th Cir. 2009). In that case, the Ninth Circuit defined the “stage” at which
    
    the deprivation of counsel may be critical as the “formulation of the response to a jury’s
    
    request for additional instructions, rather than its delivery.” Id. at 842 (emphasis in
    
    original). The Ninth Circuit stated that if it had de novo review, it would have found that
    
    the defendant was denied counsel at a critical stage under Cronic. Id. However, the
    
    Court found that it was not objectively unreasonable for the state court to have
    
    determined that referring the jury back to the original jury instructions to clarify the
    
    substantive elements of the crime is not a critical stage under Cronic. Id. at 843
    
    
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    (“potential impact of defense counsel’s inability to participate is significantly lessened,
    
    because defense counsel played a role in the formulation of those instructions”).
    
           Unlike the dictum voiced by the Ninth Circuit in Musladin, the First Circuit held
    
    that Cronic’s presumption of prejudice did not apply to a mid-deliberation
    
    communication between the judge and the jury because it only applies to a “wholesale”
    
    denial of counsel, not a “short-term, localized” denial of counsel. Ellis v. United States,
    
    
    313 F.3d 636
    , 643 (1st Cir. 2002) (quotation omitted). Similar to the case at bar, in Ellis
    
    the jury inquired: “Does it have to be unanimous to be not guilty on a[sic] indictment if
    
    the vote come [sic] out uneven?” Id. at 642. The trial court, without consulting counsel,
    
    responded “[t]he verdict on all counts must be unanimous.” Id.
    
    Application of Law to This Case
    
           After the close of Smith’s trial, the jury sent a note to the court indicating that a
    
    juror had a question regarding the testimony of the State’s witnesses. The parties’
    
    attorneys agreed to allow the judge to question the jurors ex parte to clarify the request.
    
    The judge clarified the question, returned to the courtroom, and explained the jury’s
    
    inquiry to the parties. The court then delivered an agreed upon response to the jury.4
    
           After a weekend recess, the jury sent another note to the court asking: “Does the
    
    finding in one charge negate the opposite finding in all the other charges.” App. at 577.
    
    Again unclear of what the jury was asking, the parties’ attorneys agreed to allow the
    
    judge to ask the jury ex parte to clarify its inquiry and return to the courtroom to consult
    
    4
     Smith appears to have abandoned any argument that he was deprived effective
    assistance of counsel during the first communication.
    
                                                   6
    with counsel before providing a response. After that clarification, the judge provided an
    
    answer to the jury immediately without discussing an appropriate response with counsel.
    
    The judge explained to the jury that the charges are “not a package” and that the jury
    
    “can find guilty on certain charges,” and “not guilty on other charges.” App. at 579-80.
    
    The judge stated: “If, for example – this is only for example – if you find not guilty of
    
    burglary, it doesn’t mean you couldn’t find on attempted murder or vice vers[a].” 5 App.
    
    at 580. The judge returned to the courtroom and related to counsel the nature of the
    
    jury’s question and his response. The State’s attorney responded “Okay” and Smith’s
    
    attorney made no comment. App. at 582. Within fifteen minutes of receiving these
    
    instructions, the jury returned its verdict.
    
           The situation was regrettable. It has long been recognized that expediency must at
    
    times yield to the integrity of the process. The presence of counsel is particularly
    
    important during deliberations as jurors “are particularly susceptible to influence at this
    
    point, and any statements from the trial judge-no matter how innocuous-are likely to have
    
    some impact.” Musladin, 555 F.3d at 840. It can be argued that under Toliver this
    
    response affirmatively guided the jury in its decisionmaking function and the absence of
    
    counsel from the response brings this case within Cronic. Notwithstanding, this court
    
    cannot say that it was objectively unreasonable for the state court to conclude that the
    
    
    5
      This is similar to a previous instruction given in open court with the consent of the
    parties wherein the court instructed: “In your deliberations you must make a separate
    decision to each crime. Furthermore, as to each element as well. To find that Mr. Smith
    is guilty of a crime you must find that each part or element of the crime happened and
    that he is the guilty person.” App. at 514-15.
    
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    Cronic presumption of prejudice does not apply to these circumstances. See Siehl v.
    
    Grace, 
    561 F.3d 189
    , 195 (3d Cir. 2009) (Under AEDPA, we ask whether the state
    
    court’s application of federal law was “objectively unreasonable,” not whether the
    
    application was erroneous or incorrect.). Smith’s counsel was present during the entire
    
    hearing, did not object to the trial judge entering the jury room to clarify the questions (in
    
    fact, counsel encouraged the judge to do so), and made no objections to the response
    
    provided by the judge to the jury’s inquiry. Indeed, the trial court’s response was
    
    substantially similar to previously agreed upon instructions. We agree with the District
    
    Court that the jury’s note “indicates that they had reached at least a partial verdict, and
    
    their only question was whether their mixed verdict was legally permissible.” Smith v.
    
    Kerestes, 
    2009 WL 1676136
    , at *12 (E.D. Pa. June 15, 2009).
    
             Moreover, although Smith has not explicitly conceded his inability to show
    
    prejudice, we note that he argued for a presumption of prejudice without advancing any
    
    argument regarding what trial counsel would have done differently or how such modified
    
    instructions would have affected the outcome. See United States v. Morrison, 
    946 F.2d 484
    , 503 n.7 (7th Cir. 1991) (“Even when engaging in a Cronic inquiry . . . we are never
    
    completely loosed from the factual moorings of the case before us.”). The state court
    
    properly reviewed Smith’s claim under Strickland.6
    
             Accordingly, we will affirm the District Court’s judgment, denying Smith’s §
    
    2254 petition.
    
    
    6
        Smith does not appeal the District Court’s analysis of his claims under Strickland.
    
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