Emerson Richburg v. Superintendent Houtzdale SCI

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-1768
______________
EMERSON RICHBURG,
Appellant
v.
SUPERINTENDENT HOUTZDALE SCI;
ATTORNEY GENERAL PENNSYLVANIA
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:15-cv-04748)
U.S. District Judge: Honorable Nitza I. Quiñones Alejandro
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 25, 2022
______________
Before: HARDIMAN, SHWARTZ, and FUENTES, Circuit Judges.
(Filed: January 25, 2022)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Emerson Richburg was convicted of first-degree murder and sentenced to life in
prison following a jury trial in the Philadelphia Court of Common Pleas. He appeals the
denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing
that his trial counsel was constitutionally ineffective for failing to interview and call three
witnesses and to fully cross-examine one witness. Because Richburg’s ineffective
assistance claims, even viewed cumulatively, are without merit, we will affirm.
I
A
On Valentine’s Day 2005, high school student Javon Connor (the “Victim”) was
beaten, strangled to death, rolled naked in a carpet, and shoved partway through a
basement window of an abandoned rowhome in Philadelphia. She was last seen when
she entered Richburg’s house around 8:00 or 8:30 a.m. No one else entered or exited the
house until after 10:00 a.m. Richburg lived with (1) his mother, who was away on
vacation at the time; (2) his mother’s 65-year old friend, Robert Carter, who woke up and
came downstairs for breakfast around 9:30 or 10:00 a.m.; and (3) the Victim’s boyfriend,
Julian Grant, who was at another person’s home smoking crack cocaine from
approximately 6:00 a.m. to 11:00 a.m.1 In other words, Richburg was the only one home
1
Grant’s behavior later in the day was consistent with him not seeing the Victim
or knowing her whereabouts on Valentine’s Day. He (1) called his sister after school and
asked whether the Victim went to school that day, and (2) told the Victim’s housemate
later that evening that when she does see the Victim, to “tell her he said ‘f--- her.’” A219
at 73:2-7.
2
and awake when the Victim entered the house the morning of her death.
Physical evidence linked the Victim’s death to Richburg’s house. Pink fibers and
green carpeting found entangled in the Victim’s hair matched fibers and carpeting
recovered from a rough path leading from the exterior of Richburg’s house to its
basement. Found in Richburg’s basement were a telephone cord with the Victim’s blood
on it, a yellow latex glove with Richburg’s DNA on it, carpet backing tape, a mop bucket,
and a swept-together pile of debris containing plywood chips and straw that matched
debris found on the Victim.
When Carter came downstairs for breakfast, he observed Richburg sweeping and
vacuuming the living room carpet and the steps to the basement, which Carter thought
was strange because he had never seen Richburg cleaning before. Similarly, Andrew
Richardson, a drug dealer working on Richburg’s street, saw Richburg taking several
trash bags out of the house the day after the murder.
Richburg had a tumultuous relationship with the Victim, and women in general,
which eventually led to Richburg’s arrest. The Victim referred to Richburg as “fat boy,”
A224 93:18, and told others that she rejected his sexual advances. Richburg threatened to
have the Victim beat up for “running her mouth.” A318 at 9:16-20. Richburg also: (1)
strangled his aunt with an extension cord on October 6, 2002; (2) cut another aunt with a
knife on that same day when she tried to intervene; and (3) beat and strangled his
daughter’s mother, Tanika Pagan, on March 3, 2005.
The police responded to Richburg’s assault on Pagan. Pagan first told the police
3
that Richburg described to her how Grant murdered the Victim, and later that Richburg
admitted that he had murdered the Victim. Pagan relayed details about the murder that
were not then publicly known, including that the Victim had walked past Richburg’s
house and then came inside on the morning of her death; that the Victim was wearing a
“Baby Phat” coat, which was the same coat her housemate, Denise Leaf, testified the
Victim was wearing on the day she was murdered; that the Victim was beaten and
dragged down to Richburg’s basement; and that the plan was to burn the body, a plan
consistent with the bottle of lighter fluid Carter observed on, and police recovered from,
Richburg’s kitchen counter.
B
Richburg was charged with first-degree murder, unlawful restraint, and abuse of a
corpse. At his trial, multiple witnesses testified, including Pagan, who admitted that
Richburg confessed to her that he murdered the Victim. After all witnesses testified, the
court asked Richburg, “Are there other witnesses you want called?” and Richburg
responded, “No.” A333 at 69:20-22.
Richburg was found guilty of all charges and sentenced to life in prison without
parole.
Richburg appealed, and the Superior Court affirmed. Com. v. Richburg, 961 A.2d
1282 (Pa. Super. Ct. 2008) (Table). The Pennsylvania Supreme Court denied Richburg’s
petition for allowance of appeal. Com. v. Richburg, 964 A.2d 895 (Pa. 2009) (Table).
C
4
Richburg filed a pro se petition under Pennsylvania’s Post Conviction Relief Act
(“PCRA”), 42 Pa. C.S. § 9541 et seq., raising numerous claims. A371-402. Appointed
counsel filed an amended PCRA petition based upon one claim: Richburg’s trial
counsel’s alleged failure to call an alibi witness. The PCRA court denied the petition, the
Superior Court affirmed, Com. v. Richburg, No. 2142 EDA 2014, 2015 WL 7571962 (Pa.
Super. Mar. 9, 2015), and the Supreme Court denied allowance of appeal, Com. v.
Richburg, 118 A.3d 1108 (Pa. 2015) (Table).
D
Richburg then petitioned for federal habeas relief. The District Court referred the
petition to a Magistrate Judge. The Magistrate Judge issued a report and
recommendation, concluding, among other things, that Richburg’s counsel was not
ineffective for failing to call his purported alibi witness and that his “remaining . . .
twenty-six [] claims of counsel ineffectiveness,” including “‘cumulative’ misconduct,”
were procedurally defaulted, A20–22. The District Court adopted the report and
recommendation and denied both Richburg’s petition for a writ of habeas corpus and a
certificate of appealability.
Richburg appeals, and we granted a certificate of appealability to review his
claims that his trial counsel rendered ineffective assistance by: (1) failing to interview
and call the purported alibi witness as well as two other witnesses who he claims would
have all impeached Pagan’s credibility; and (2) failing to impeach Pagan with a prior
crimen falsi conviction and the fact that she may have expected favorable treatment in
5
exchange for her testimony. We also granted the request to expand the certificate to
consider whether these alleged errors cumulatively prejudiced Richburg.2
II3
A
Ordinarily, a habeas petitioner must either exhaust his claims by “fairly
present[ing]” them at each available level of the state courts, Lines v. Larkins, 208 F.3d
153, 159-161 (3d Cir. 2000), or show cause for his failure to meet the exhaustion
requirement, Martinez v. Ryan, 566 U.S. 1, 10 (2012). In Martinez, for example, the
Supreme Court held that ineffective assistance of counsel at initial-review state collateral
proceedings may constitute such cause. Id. at 9. Richburg concedes that several of the
issues he presents to us were not presented to the state courts, but “we need not address
the issue of exhaustion” here because each of Richburg’s claims lack merit. Roman v.
DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (“Because we will deny [the petitioner’s]
claims on the merits, we need not address the issue of exhaustion in this case.”); see also
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.”).
2
We will grant the Government’s unopposed motion to expand the record to
include certain documents presented to the state court.
3
The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the
District Court’s order because the Court did not hold an evidentiary hearing. Simmons v.
Beard, 590 F.3d 223, 231 (3d Cir. 2009).
6
Similarly, although our standard of review varies depending upon whether the
state court “adjudicated . . . the merits” of Richburg’s claims, Johnson v. Williams, 568
U.S. 289, 292 (2013) (quoting 28 U.S.C. § 2254(d)); Breakiron v. Horn, 642 F.3d 126,
131 (3d Cir. 2011), we need not address whether the state court adjudicated them
because, even on de novo review, his claims lack merit. We are, however, required to
presume that the state court’s factual findings are correct “unless rebutted by clear and
convincing evidence.” Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (citing 28
U.S.C. § 2254(e)(1)).
B
To succeed on an ineffective assistance claim, a petitioner must show that (1)
“[his] counsel’s performance was deficient;” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s performance is deficient when it “[falls] below an objective standard of
reasonableness under prevailing professional norms.” Collins v. Sec’y of Pa. Dep’t of
Corr., 742 F.3d 528, 546 (3d Cir. 2014) (quotation marks omitted). To establish
prejudice, a petitioner must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome” of the trial. Strickland, 466 U.S. at 694. In assessing these elements, we must
“consider the totality of the evidence before the . . . jury.” Id. at 695.
7
Richburg argues ineffective assistance concerning his trial counsel’s failure to call
three witnesses and failure to use certain evidence to impeach Pagan. We address each
claim in turn.
1
Richburg argues that his trial counsel was ineffective for failing to interview and
call Jamie Roeder to impeach Pagan’s testimony. Roeder is now Richburg’s sister-in-law
and would have testified that Pagan told her that Pagan falsely implicated Richburg only
“because she was told [by police] . . . that [Richburg]’s DNA was found in that dead
girl[’]s body.” A456.
Failing to interview or call Roeder was neither deficient performance nor
prejudicial. The police allegedly told Pagan that Richburg’s DNA was found on the
Victim. Richburg claims that Roeder would have testified that this caused Pagan to
falsely accuse Richburg of the crime. Pagan, however, was cross-examined on this
subject, and therefore, the jury had the opportunity to weigh the impact of her statements
on her credibility. As a result, Roeder’s proffered testimony that Pagan said she lied
about Richburg’s confession would have been cumulative. Second, calling Roeder would
have opened the door to testimony that Richburg told Roeder to “lie to [the police] about
the time [she] was with him on Valentine’s Day” to establish an alibi, as Roeder had
previously told the police. A439-40. The jury could have viewed such request as the
effort of “a guilty man” to tamper with a witness, Collins, 742 F.3d at 549, and thus serve
as further incriminating evidence against Richburg. Given the potential harm of Roeder’s
8
proffered testimony, we cannot say that the failure to interview or call her fell below an
objective standard of reasonableness. See Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d
Cir. 1998) (holding counsel’s failure “to call [a witness] to testify regarding alleged
inconsistencies in the victims’ accounts . . . was a reasonable trial strategy, [given that
the] testimony would alert the jury to” information harmful to the defendant).4
Further, the evidence against Richburg would have been unaffected by Roeder’s
testimony, and thus Richburg was not prejudiced by her absence. Roeder’s testimony
would not have undermined the fact that an eye-witness saw the Victim enter Richburg’s
house the morning of her murder, that Richburg was the only person awake at the house
when the Victim entered,5 that Richburg was seen cleaning the house and taking out trash
the day after the murder, that Richburg’s DNA was found on a latex glove in Richburg’s
basement near a phone cord with the Victim’s blood on it, and that pink fibers, green
carpeting, wood chips, and straw found in Richburg’s home were also found on the
4
The state court also aptly noted that Richburg’s ineffective assistance claim
concerning Roeder failed “for a[nother] reason,” that is, “[d]uring defendant[’]s trial[,]
defendant was asked if he wanted any witnesses called in his defense[,] and he indicated
that he did not,” constituting a “knowing, voluntary, and intelligent decision concerning
trial strategy [that bars him from] later be[ing] heard to complain trial counsel was
ineffective on the basis of that decision.” A477 (citing Com. v. Paddy, 800 A.2d 294,
316 (Pa. 2002)). To allow Richburg to now complain after making such a decision
“would allow [him] to build into his case a ready-made ineffectiveness claim to be raised
in the event of an adverse verdict.” Paddy, 800 A.2d at 316.
5
Richburg no longer asserts that his counsel was ineffective for not offering
Roeder’s testimony to provide an alibi. This makes sense as the proffered testimony that
Roeder picked up Richburg from his house to purchase marijuana the morning of the
murder did not rule out that Richburg had time to commit the murder.
9
Victim. Given the physical and testimonial evidence against Richburg, we cannot say
there is a reasonable probability that the verdict would have been different had Roeder
testified.
Thus, Richburg’s ineffective assistance claim concerning Roeder fails.
2
Richburg argues that trial counsel was ineffective for failing to interview and call
Edwin Aquino as a witness to challenge the Government’s theory that Richburg killed the
Victim and hid the body by himself, because Aquino “witnessed three men dumping a
roll of carpet in a basement window around the time [the Victim] went missing,”
Appellant Br. at 38-40. While Aquino’s testimony would have placed others with the
body, it also could have constituted an eye-witness to Richburg’s disposal of the body
and thus we cannot say that trial counsel’s decision not to call Aquino fell below an
objective standard of reasonableness. See Duncan v. Morton, 256 F.3d 189, 200-01 (3d
Cir. 2001) (observing that where “testimony would have been more harmful than helpful
to . . . [the] defense, we cannot find [trial counsel’s] failure to call [the witness]”
constituted constitutionally deficient performance). Moreover, Richburg was not
prejudiced by Aquino’s absence because Aquino could neither offer testimony
concerning who murdered the Victim nor discredit the other evidence that implicated
Richburg.
Thus, Richburg’s ineffective assistance claim concerning Aquino fails.
3
10
Richburg argues that trial counsel was ineffective for failing to seek to enforce the
subpoena to call S.C. as a witness to impeach Pagan. Richburg contends that Pagan
admitted to S.C. that Pagan lied about Richburg’s confession. Had S.C. testified,
however, the testimony would have also opened the door to testimony that Pagan told
Richburg’s aunt that Richburg confessed. Given this risk, it was reasonable for counsel
not to pursue S.C.’s testimony.6 Further, as explained above, the Commonwealth’s
additional evidence makes it difficult to say there is a reasonable probability that the
verdict would have been different had Richburg’s trial counsel called S.C. as a witness.
Thus, Richburg’s ineffective assistance claim concerning S.C. fails.
4
Richburg argues that trial counsel was ineffective because he failed to cross-
examine Pagan about a retail theft conviction and her expectation of favorable treatment
in exchange for her testimony. Richburg concedes, however, that the conviction occurred
6
Moreover, Richburg explicitly agreed not to call S.C. The court addressed
Richburg on the record saying that “[S.C.] did not appear and she was apparently served
by the defense. She was given notice that she was to be here, and . . . [s]he has not shown
up, and it is my understanding that you do not wish to have her testify; is that correct?”
A332-33 at 68:18-69:6. Richburg responded, “Yes, Your Honor.” A333 at 69:7. The
court reminded Richburg that he had a right to have her appear, and confirmed that
Richburg “discussed this with [his] lawyers and [Richburg still] d[id] not wish to get her
involved or have her testify.” A333 at 69:8-14. Again, Richburg confirmed, “Yes.”
A333 at 69:15. It seems implausible that Richburg would have waived his right to call
this witness if her testimony would have been as helpful as he now urges. Moreover, as
stated previously, to allow him to now complain “would allow [him] to build into his case
a ready-made ineffectiveness claim to be raised in the event of an adverse verdict.”
Paddy, 800 A.2d at 316.
11
after the trial. Thus, trial counsel could not have cross-examined Pagan on the conviction
because it had not yet occurred.
Richburg nonetheless argues that Pagan’s retail theft case was pending during the
time of Pagan’s trial testimony, so Pagan should have been cross-examined about that
arrest. There is, however, a question whether cross-examination about an arrest is
permitted under the Pennsylvania Rules of Evidence. See Com. v. Brown, 673 A.2d 975,
979–80 (Pa. Super. 1996) (holding that the trial court erred by admitting impeachment
evidence of a witness’ prior theft arrest, but that the error was harmless). Even if such
questioning were allowed, the jury would have been required to conclude that Pagan
falsely testified that the father of her child committed first-degree murder in hopes of
avoiding the consequences of her retail-theft arrest. Trial counsel’s decision not to
pursue this line of questioning in the hope that the jury would reach this unlikely
conclusion did not fall below an objective standard of reasonableness. See United States
v. Harris, 394 F.3d 543, 557 (7th Cir. 2005) (finding no ineffective assistance where trial
counsel “[p]erhaps . . . did not want to dwell on a witness who brought forward . . .
damning [evidence]”).7
In addition, Richburg was not prejudiced by his trial counsel’s decision because
7
Richburg’s argument that “it is possible that Pagan was still on probation” at the
time of the retail theft incident and her testimony, and “[i]f so,” then Pagan also may have
been facing potential probation violations, Reply Br. at 15-18, is speculative. See Harris,
394 F.3d at 555 (concluding that trial counsel was not ineffective for failing to call a
witness when “on this record we are unable to determine . . . what [the witness’s]
testimony would have been”).
12
the unchallenged evidence corroborated Pagan’s recitation of what Richburg told her
about the murder, including that the Victim had come to his house, what she was
wearing, what he did to her, what he did with her body, and what he planned to do next
(i.e., set the Victim’s body on fire). Given the evidence introduced at trial, which
corroborated the events Pagan said Richburg described, we cannot say there is a
reasonable probability that the verdict would have been different had Pagan been cross-
examined on her retail theft arrest.
Thus, Richburg’s ineffective assistance claim concerning Pagan fails.
5
Finally, Richburg argues that, cumulatively, trial counsel’s above-mentioned
errors prejudiced Richburg, as “[a]ll of trial counsel’s errors involved a failure to
challenge the testimony of Tanika Pagan, . . . the only witness who implicated Richburg
as [the Victim]’s killer.” Appellant Br. at 52-55.
The “cumulative-error analysis merely aggregates all the errors that individually
have been found to be harmless, and therefore not reversible, and it analyzes whether
their cumulative effect on the outcome of the trial is such that collectively they can no
longer be determined to be harmless.” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir.
2007). “Cumulative errors are not harmless if they had a substantial and injurious effect
or influence in determining the jury’s verdict, which means that a habeas petitioner is not
entitled to relief based on cumulative errors unless he can establish actual prejudice.” Id.(quotation marks and citations omitted).
13
Here, trial counsel did not err, nor did his decisions cumulatively prejudice
Richburg. Even if examining Pagan about her retail theft arrest and the testimony of
Roeder, Aquino, and S.C. wholly discredited Pagan’s testimony, the evidence still
demonstrates that (1) Richburg had motive (the Victim declined his advances and
disparaged him); (2) Richburg had opportunity (he was the only person home and awake
at the house when the Victim was last seen entering the morning of her death); (3)
Richburg had means (he had strangled another woman in the past); and (4) Richburg was
linked to the murder by physical evidence (his DNA was found on the latex glove in his
basement near the phone cord with the Victim’s blood on it, and debris found on the
Victim’s body matched debris found in his basement). See Albrecht, 485 F.3d at 139(holding no cumulative error when the evidence showed that the defendant “had a
motive,” that “there was physical evidence against him,” and that the defendant “made
numerous serious threats to a variety of people that he would kill [the victim]”).8 Thus,
Richburg’s cumulative error claim is without merit.
III
For the foregoing reasons, we will affirm the District Court’s order.
8
In fact, trial counsel’s decisions likely helped Richburg by preventing the jury
from hearing that (1) Richburg asked Roeder to lie to police to create an alibi, (2) Aquino
recognized Richburg as one of the men disposing of the body, and (3) Pagan also told her
aunt that Richburg confessed to the murder.
14