Vegas Gibson v. Superintendent Dallas SCI ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4590
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VEGAS GIBSON,
Appellant
v.
SUPERINTENDENT DALLAS SCI;
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY OF DAUPHIN COUNTY
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. Civil No. 1-12-cv-02443)
District Judge: Honorable Yvette Kane
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Submitted under Third Circuit LAR 34.1(a)
on February 12, 2016
Before: FUENTES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: March 30, 2016)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
Vegas Gibson appeals the District Court’s denial of his petition for writ of
habeas corpus, challenging his July 2005 conviction on the basis of ineffective assistance
of counsel. We conclude that Gibson has not demonstrated that counsel was ineffective
and therefore we will affirm the judgment of the District Court.
I.
Gibson is an inmate at State Correctional Institute in Dallas, Pennsylvania, serving
a life sentence for first-degree murder, aggravated assault, firearm possession and
reckless endangerment. Following his conviction, Gibson filed a petition for post-
conviction relief on the basis of ineffective assistance of counsel pursuant to
Pennsylvania’s Post-Conviction Relief Act (PCRA). The PCRA court denied Gibson’s
petition and the Pennsylvania Superior Court affirmed the PCRA court’s ruling. Gibson
then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the U.S.
District Court for the Middle District of Pennsylvania, which denied the petition.
Gibson’s present appeal asserts three grounds upon which the lower courts should have
found ineffective assistance of counsel.1 We review Gibson’s claims de novo.2
II.
To demonstrate that counsel was ineffective, Gibson must establish that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
1
We have appellate jurisdiction under 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291.
2
Werts v. Vaughn, 228 F.3d 178, 191 (3d Cir. 2000).
2
defendant by the Sixth Amendment” and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”3
The Supreme Court in Strickland cautioned that “[b]ecause of the difficulties inherent in
making the evaluation [of effectiveness of counsel], a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance”; therefore “[j]udicial scrutiny of counsel’s performance must be highly
deferential.”4 Where, as here, we review proceedings from a state court, “[t]he pivotal
question is whether the state court’s application of the Strickland standard was
unreasonable.”5
Gibson first alleges that his trial counsel was ineffective in failing to object to
certain closing statements by the prosecution. During closing arguments in Gibson’s
trial, the prosecutor stated, “the first time you heard even a word about self-defense with
respect to Gibson was this afternoon . . . . Four and a half days into the trial, Vegas
Gibson gets on the stand. That is when we hear self-defense.” Gibson claimed these
statements improperly relied on his post-arrest silence, in violation of Doyle v. Ohio.6
Gibson previously raised this argument before the PCRA court, the Pennsylvania
Superior Court and the District Court, all of which found no error given that the
3
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
4
Id. at 689.
5
Harrington v. Richter, 562 U.S. 86, 101 (2011) (“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.”).
6
426 U.S. 610, 618-19 (1976) (“[I]t would be fundamentally unfair and a deprivation of
due process to allow the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.”).
3
prosecutor did not mention Gibson’s post-arrest conduct, but rather simply referred to his
conduct at trial. We agree that the prosecutor’s comments were an allowable response to
Gibson’s conduct at trial and therefore his counsel was not ineffective for failing to object
to them.
Gibson also claims that his trial counsel was ineffective on two grounds related to
Jason Brown, a witness critical to Gibson’s self-defense argument. At trial, Gibson’s
self-defense claim was predicated in part on the actions of Brown, whom Gibson believed
to be “exceptionally dangerous.” Gibson claims that his counsel was ineffective in
failing to discover that criminal charges had been filed against Brown. The PCRA court
addressed this issue and found that because the charges against Brown had been
dismissed for lack of evidence, there was no basis for bringing those charges to the jury’s
attention. Furthermore, the PCRA court concluded that Gibson’s counsel was able to
elicit testimony at trial showing that Brown had been involved in violent crimes in the
past, which supported Gibson’s self-defense claim. We therefore agree that Gibson has
not shown that he was prejudiced by any failure to discover that criminal charges had
been filed against Brown.
Additionally, Gibson argues that counsel was ineffective in failing to object to the
trial court’s exclusion of his proposed testimony about Brown’s violent character. The
Pennsylvania Superior Court agreed with Gibson that the testimony in question was
offered to establish Gibson’s state of mind, rather than the truth of the matter asserted,
and therefore held that the trial court erred in finding the testimony inadmissible hearsay.
However, the Superior Court also concluded that because the jury did hear evidence
4
about “instances in which [Gibson] personally observed Brown commit acts of violence
and other witnesses testified at [Gibson’s] trial about violent episodes in which Brown
was involved,” the excluded evidence was merely cumulative. We agree with the District
Court’s holding that Gibson has failed to establish that he was prejudiced by his counsel’s
failure to object to the trial court’s exclusion of his testimony.
Gibson has failed to demonstrate that the PCRA court’s ruling was unreasonable
in its application of Strickland. We will therefore affirm the judgment of the District
Court.
5