Nolen v. Meyers , 98 F. App'x 97 ( 2004 )


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  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-23-2004
    Nolen v. Meyers
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 03-2118
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    Recommended Citation
    "Nolen v. Meyers" (2004). 2004 Decisions. Paper 783.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/783
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    NOT PRECEDENTIAL
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 03-2118
    CHRISTOPHER NOLEN,
    Appellant
    v.
    ROBERT W. MEYERS
    _________________________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    District Judge: The Honorable James F. McClure, Jr.
    (D.C. No. 00-cv-00196)
    _________________________________
    Submitted under Third Circuit LAR 34.1
    on March 25, 2004
    Before: FUENTES, SMITH, and GIBSON,* Circuit Judges
    (Filed: April 23, 2004)
    ______________________
    OPINION OF THE COURT
    _______________________
    *
    The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
    of Appeals for the Eighth Circuit, sitting by designation.
    1
    GIBSON, Circuit Judge.
    Christopher Nolen appeals the denial of his petition for a writ of habeas corpus
    claiming his Sixth Amendment right to effective assistance of counsel was violated by
    counsel's failure to request an alibi jury instruction. We affirm.
    In the early evening of November 21, 1981, two masked men armed with
    handguns entered Ritchie's Tavern in Londonderry Township, Pennsylvania. One of the
    men ordered, "Don't move or I'll shoot." When the proprietor of the tavern, Carroll
    Ritchie, approached the two men, each one fired his gun. One of the men fired his gun a
    second time, and this bullet struck and killed Ritchie.
    Nolen was identified as one of the shooters by David Crater, who confessed to
    being the driver of the getaway car. Crater testified that he, Nolen, Dauntel Evans, and
    Joey Boyer had originally planned to rob a country grocery store that evening. As they
    drove toward the store, Boyer decided that he no longer wanted any part of the robbery,
    got out of the vehicle and walked home. The other three men reached the grocery store
    but abandoned their plan to rob it after noticing the number of people inside. They turned
    their attention to nearby Ritchie's Tavern instead. Crater testified that he entered the
    tavern first to survey the premises, then returned to the car to wait while Nolen and
    Evans, faces concealed, entered the tavern with the handguns. Crater heard three shots
    fired, then Nolen and Evans ran from the tavern and the three men drove off.
    Nolen was tried and convicted in Pennsylvania state court of second-degree
    2
    murder, robbery, and criminal conspiracy. However, his conviction was vacated by the
    Pennsylvania Supreme Court, which concluded that the trial court erred in not allowing
    defense counsel to cross-examine Crater about his role in the incident and his expectation
    of leniency in return for his testimony. Commonwealth v. Evans, 
    512 A.2d 626
     (Pa.
    1986). On remand, Nolen was tried and convicted again.
    During the second trial, there was testimony presented from both Nolen's sister and
    grandmother. 1 Nolen's sister testified that Nolen had been at her home by 5:30 p.m. on
    the night of the shooting and had stayed there for the remainder of the night. Nolen's
    grandmother, who lived separately from his sister, testified that Nolen was at her home by
    7:00 p.m. on the night in question and stayed there for the remainder of the night. She
    also testified that he had been at her home from 7:00 onward every night during the
    weeks surrounding the shooting, despite Nolen's admission that he committed two other
    robberies during that time. Nolen's attorney did not request an alibi jury instruction, and
    later explained that he consciously chose not to request such an instruction on account of
    the inconsistencies between the sister's and grandmother's testimony.
    In August 1993, Nolen filed a petition for relief under the Pennsylvania Post
    Conviction Relief Act, 
    42 Pa. Cons. Stat. §§ 9541
     et seq., alleging that he was denied
    effective assistance of counsel based in part on counsel’s failure to request an alibi jury
    1
    The grandmother only appeared at the first trial; her testimony was read into the
    record in the second.
    3
    instruction. Following the adverse rulings of state courts, including the Pennsylvania
    Supreme Court's denial of a petition for allowance of appeal, Nolen filed this habeas
    corpus petition. The district court found that Nolen had properly exhausted his state
    remedies but that his ineffective assistance of counsel claim lacked merit and therefore
    dismissed his petition.
    We review de novo the district court’s denial of habeas corpus relief. Steele v.
    Blackman, 
    236 F.3d 130
    , 133 (3d Cir. 2001). "[A] federal court may grant habeas relief
    only if the state court's decision was 'contrary to, or involved an unreasonable application
    of, clearly established Federal law, as determined by the Supreme Court of the United
    States,' or was 'based on an unreasonable determination of the facts in light of the
    evidence presented in the State court proceeding.'" Chadwick v. Janecka, 
    312 F.3d 597
    ,
    606-07 (3d Cir. 2002) (quoting 
    28 U.S.C. § 2254
    (d)(1), (d)(2)), cert. denied 
    123 S.Ct. 1914
     (2003). In order to succeed on an ineffective assistance of counsel claim, the
    Supreme Court has held that a defendant must show: 1) that the performance of counsel
    fell below an objective standard of reasonableness; and 2) that the errors of counsel
    prejudiced the defense. Strickland v. Washington, 
    466 U.S. 668
    , 687-88, 692 (1984).
    We cannot conclude that the state court’s decision denying post-conviction relief
    was contrary to, or an unreasonable application of, Supreme Court precedent on
    ineffective assistance of counsel claims under the Sixth Amendment. Nolen’s trial
    counsel testified during the state post-conviction proceedings that he made a conscious
    4
    decision not to pursue an alibi defense based on the inconsistencies in the alibi testimony.
    He thought that an alibi jury instruction would serve only to highlight these
    inconsistencies. While this strategy may not have been ideal, the state court certainly did
    not err in concluding that it was objectively reasonable, especially in light of the Supreme
    Court’s mandate that “[j]udicial scrutiny of counsel’s performance must be highly
    deferential.” Strickland, 
    466 U.S. at 689
    . Indeed, “[t]here are countless ways to provide
    effective assistance in any given case. Even the best criminal defense attorneys would not
    defend a particular client in the same way.” 
    Id.
    We affirm the district court’s denial of Nolen’s petition for a writ of habeas
    corpus.
    5
    

Document Info

Docket Number: 03-2118

Citation Numbers: 98 F. App'x 97

Filed Date: 4/23/2004

Precedential Status: Non-Precedential

Modified Date: 1/12/2023