Samuel Perez v. Gerald Rozum

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1682
_____________
SAMUEL SANTIAGO PEREZ,
Appellant
v.
GERALD ROZUM, Superintendent SCI Somerset;
ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA;
DISTRICT ATTORNEY OF LANCASTER COUNTY
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 3:07-cv-00305)
District Judge: Honorable Kim R. Gibson
______________
Argued January 24, 2012
Before: McKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges
(Opinion Filed: July 13, 2012)
Robert E. Mielnicki, Esq. (Argued)
Seewald, Mielnicki & Petro
429 Forbes Avenue
700 Allegheny Building
Pittsburgh, PA 15219
Attorney for Appellant
Andrew J. Gonzalez, Esq. (Argued)
Lancaster County Office of District Attorney
50 North Duke Street
Lancaster, PA 17608
Attorney for Appellees
___________
OPINION
___________
McKEE, Chief Judge.
Pennsylvania state prisoner Samuel Santiago Perez appeals the District Court‟s
denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. For the reasons
that follow, we will affirm.
I.
In 2000, Perez was charged with criminal homicide and criminal conspiracy in
connection with the shooting death of Leslie Samaniego, an innocent bystander killed
during a shootout between rival groups in Lancaster, Pennsylvania. The
Commonwealth‟s theory of the case at trial was that Perez, a member of one of the
groups, had fired gunshots at the rival group, that a bullet fired by one of those rivals had
killed Samaniego, and that Perez could be held criminally responsible for her death
pursuant to Pennsylvania‟s doctrine of transferred intent. Under that doctrine,
if an individual shoots at others and that provokes a return of
fire by the intended targets resulting in the striking of a
bystander, the individual who initiates the gunfire may be
held criminally responsible for the injuries sustained by the
victim; that is, the intent to kill may be established as to one
person and transferred to a victim caught and killed in the
same incident.
(J.A. at 304 (citing Commonwealth v. Devine, 750 A.2d 899 (Pa. Super. 2000).)
The trial court instructed the jury that “the key difference” between first-degree
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murder and third-degree murder “is that first-degree murder requires something called a
specific intent to kill.” (J.A. at 793.) As part of its instructions on specific intent, the
court stated that “[t]he use of a deadly weapon on a vital part of the victim‟s body may be
considered as an item of circumstantial evidence from which you may, if you choose,
infer that the defendant had the specific intent to kill.” (Id.)
During its deliberations, the jury asked the court to explain again the difference
between first-degree murder and third-degree murder. The court responded by reiterating
its previous instructions, including the deadly weapon instruction. Thereafter, the jury
resumed its deliberations and found Perez guilty of first-degree murder and criminal
conspiracy. The trial court sentenced him to life imprisonment for the murder conviction,
and imposed a concurrent 10- to 20-year prison term for the conspiracy conviction.
On direct appeal, Perez argued, inter alia, that his trial counsel had been
ineffective for failing to object to the deadly weapon instruction, for the Commonwealth
had conceded that neither Perez nor his alleged co-conspirator had shot Samaniego. The
Pennsylvania Superior Court rejected all of Perez‟s claims and affirmed the judgment of
sentence. Despite noting that his allegation of ineffectiveness had “arguable merit,” the
Superior Court concluded that this claim nonetheless failed because he had not shown
that he was prejudiced by counsel‟s failure to object to the instruction.
Perez subsequently petitioned the Pennsylvania Supreme Court to review the
Superior Court‟s decision. In a per curiam order, the Pennsylvania Supreme Court, citing
its decision in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (holding that, “as a
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general rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review”), granted the petition as to Perez‟s deadly weapon
instruction claim, vacated the Superior Court‟s disposition of that claim, and dismissed
the appeal without prejudice to consideration of that claim on collateral review.
Thereafter, Perez filed a petition pursuant to Pennsylvania‟s Post Conviction
Relief Act (“PCRA”), reiterating his deadly weapon instruction claim and presenting two
new ineffectiveness claims. After holding an evidentiary hearing, the trial court denied
the petition. The Superior Court affirmed that judgment, concluding, as it had before,
that Perez had not shown that he was prejudiced by trial counsel‟s failure to object to the
deadly weapon instruction.
After the Pennsylvania Supreme Court denied Perez‟s petition to review the
Superior Court‟s latest decision, he timely filed a habeas petition in the District Court
pursuant to § 2254, raising his three PCRA claims and a sufficiency of the evidence claim
that he had exhausted on direct appeal. The District Court referred the case to a
Magistrate Judge, who recommended that the court deny Perez‟s habeas petition on the
merits. Despite characterizing the Superior Court‟s analysis of the deadly weapon
instruction claim as “a bit of hand waving,” (J.A. at 24), the Magistrate Judge determined
that “fairminded jurists could easily agree with the Superior Court‟s analysis (and find
that a reasonable juror would have simply ignored the challenged instruction as irrelevant
because there was no evidence Perez shot Samaniego).” (Id. at 25.) As a result, the
Magistrate Judge concluded that the Superior Court‟s analysis was not an unreasonable
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application of Strickland v. Washington, 466 U.S. 668 (1984), and thus did not warrant
habeas relief.
On March 4, 2011, the District Court denied Perez‟s habeas petition, but also
granted a certificate of appealability (“COA”) as to Perez‟s deadly weapon instruction
claim. This appeal followed.1
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have
appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review a district court‟s
denial of habeas relief de novo. Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007).
Where, as here, the state court has denied the petitioner‟s claim on the merits, we may
grant habeas relief only if that state court decision (1) “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) “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”2 28 U.S.C.
1
Perez moved to expand the COA, but we denied that motion; therefore, his deadly
weapon instruction claim is the only claim before us.
2
We find no merit to Perez‟s argument that § 2254(d)‟s deferential standard does not
apply here because the Superior Court “never analyzed [his] claim under clearly
established federal law.” (Pet‟r‟s Br. 45.) The United States Supreme Court “ha[s] made
clear that as long as the reasoning of the state court does not contradict relevant Supreme
Court precedent, [§ 2254(d)‟s] general rule of deference applies.” Priester v. Vaughn,
382 F.3d 394, 397-98 (3d Cir. 2004) (citing Early v. Packer, 537 U.S. 3 (2002), and
Woodford v. Visciotti, 537 U.S. 19 (2002)). Although the Superior Court did not cite the
clearly established federal law at issue here — the Supreme Court‟s decision in
Strickland — it did apply Pennsylvania‟s three-part test for evaluating ineffectiveness
claims. (See J.A. at 197 (reciting Pennsylvania‟s three-part test and citing
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§ 2254(d). “This is a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt.”3 Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks
and citations omitted).
In determining whether a state court has unreasonably applied clearly established
federal law,4 “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.‟” Brown v.
Commonwealth v. Hawkins, 894 A.2d 716, 721 (Pa. 2006)).) Because “th[is] state
standard is „the same‟ as Strickland‟s,” Rompilla v. Horn, 355 F.3d 233, 248 (3d Cir.
2004), rev’d on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005) (quoting
Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987)), we agree with the District
Court that § 2254(d) applies here. See also Boyd v. Warden, 579 F.3d 330, 334 n.2 (3d
Cir. 2009) (en banc) (Scirica, C.J., concurring) (“[A] Pennsylvania court has adjudicated
a Strickland claim on the merits where it has applied the state-law standard to that
claim.”).
3
As the Supreme Court recently stated in Coleman v. Johnson, 132 S. Ct. 2060, 2065
(2012) (per curiam), the state court‟s determination “is entitled to considerable deference
under [§ 2254(d)].”
4
Perez argues that § 2254(d)‟s “unreasonable determination of the facts” prong is also
implicated here because the Superior Court erroneously determined that the trial court‟s
deadly weapon instruction was a correct statement of law. But that conclusion was a
legal, not a factual, determination. Accordingly, only § 2254(d)‟s “unreasonable
application” prong applies here.
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Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011) (quoting Harrington, 131 S. Ct. at 786).
III.
We analyze Perez‟s deadly weapon instruction claim under Strickland‟s two-prong
test for evaluating ineffectiveness of counsel claims. Under this test, a petitioner must
show (1) that his counsel‟s performance was deficient, and (2) that the petitioner was
prejudiced by this deficient performance. Strickland, 466 U.S. at 687. To satisfy the
prejudice prong, 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. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. Because § 2254(d)‟s deferential standard applies here, the
question before us is whether the Superior Court‟s conclusion that Perez had not shown
prejudice was an unreasonable application of Strickland. In considering this question, we
must analyze “the challenged instruction in the context of the entire charge and in light of
the evidence and arguments presented at trial.” Williams v. Beard, 637 F.3d 195, 223 (3d
Cir. 2011).
It is undisputed that the deadly weapon instruction was inapplicable to Perez‟s
case, for there was no evidence that he had used a deadly weapon on a vital part of
Samaniego‟s body. While the Superior Court viewed this instruction as “merely
superfluous” in light of the trial court‟s remaining instructions on specific intent,5 (J.A. at
5
Perez does not dispute that the balance of the trial court‟s instructions on specific intent,
which immediately preceded the deadly weapon instruction, applied to his case and
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199), Perez disagrees. He contends that, because the instruction used the phrase “the use
of a deadly weapon,” not “the defendant’s use of a deadly weapon,” the jury may have
believed — incorrectly — that it could infer his specific intent to kill from anyone’s use
of a deadly weapon on a vital part of Samaniego‟s body.
Perez‟s argument is not without some merit. But even if the jury did interpret the
trial court‟s deadly weapon instruction to mean that it could infer his specific intent to kill
from anyone‟s use of a deadly weapon on a vital part of Samaniego‟s body, it does not
necessarily follow that the outcome of his trial hinged on that instruction. Rather, that
correctly stated Pennsylvania law. Those instructions were as follows:
A person has the specific intent to kill if he has a fully-
formed intent to kill and is conscious of his own intention.
As my earlier definition of malice indicates, a killing by a
person who has a specific intent to kill would, of course, be a
killing with malice.
Stated differently, a killing is with a specific intent to
kill if it is willful, deliberate, and premeditated. The specific
intent to kill, including premeditation needed for first-degree
murder, does not require planning or previous thought for any
particular length of time. It can occur quickly.
All that is necessary is that there be enough time so
that the defendant can and does fully form an intent to kill
and is conscious of that intention.
When deciding whether the defendant had the specific
intent to kill, you should consider all the evidence regarding
his words and conduct and the attending circumstances that
may show his state of mind.
(J.A. at 793.)
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instruction affected the outcome of his trial only if (1) the jury believed that it could
construe anyone‟s use of a deadly weapon on a vital part of Samaniego‟s body as
evidence of Perez‟s specific intent to kill, and (2) the jury determined that, without this
evidence, the Commonwealth could not meet its burden of establishing that Perez had
possessed a specific intent to kill.
To be sure, it is possible that both of these conditions were present here. But
Perez must show much more than that to obtain habeas relief; he must establish not only
that there is a reasonable probability that these conditions were present (i.e., that he was
prejudiced by trial counsel‟s failure to object to the instruction), but also that the Superior
Court acted unreasonably in concluding that there was no such prejudice. Having
reviewed the evidence at trial and considered the jury charge as a whole, we do not
necessarily disagree with Perez‟s claim of prejudice. Nevertheless, we cannot, on this
record, conclude that the Superior Court‟s decision to the contrary was unreasonable.
Accordingly, we agree with the District Court‟s decision to deny Perez habeas relief.
IV.
In light of the above, we will affirm the District Court‟s March 4, 2011 order.
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