William Johnson v. Marirosa Lamas

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3208
_____________
WILLIAM JOHNSON,
Appellant
v.
MARIROSA LAMAS;
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
(District Court No.: 2-12-cv-05156)
District Judge: Honorable Anita B. Brody
Argued February 8, 2016
Before: FUENTES, KRAUSE, and RENDELL,
Circuit Judges.
(Opinion Filed: March 3, 2017)
David Rudovsky [ARGUED]
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106
Counsel for Appellant
Catherine B. Kiefer [ARGUED]
Assistant District Attorney
Susan E. Affronti
Chief, Federal Litigation Unit
Ronald Eisenberg
Deputy District Attorney, Law Division
Edward F. McCann, Jr.
First Assistant District Attorney
R. Seth Williams
District Attorney
Max C. Kaufman
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees

Judge Fuentes assumed Senior Status on July 18, 2016 after
the appeal was argued.
2
____________
OPINION
____________
RENDELL, Circuit Judge:
In the early morning hours of August 26, 2005, off-
duty police officer Terrence Flomo was shot to death while he
sat in his car near the intersection of 20th Street and Cecil B.
Moore Avenue in North Philadelphia. The Commonwealth
charged William Johnson and Mumin Slaughter with murder
based on witness identifications and forensic testimony. The
shooting occurred after Flomo had stopped his car and
solicited Brenda Bowens, a prostitute and Slaughter’s and
Johnson’s long-time drug customer.
At trial, the jury acquitted both defendants of first-
degree murder, but convicted Slaughter on third-degree
murder and criminal conspiracy. It failed to reach a verdict on
any remaining charges as to Johnson.
At Johnson’s retrial, the prosecution introduced a
statement that Slaughter had given police that implicated
Johnson. Everyone agrees that this violated Johnson’s right to
confront witnesses against him, and Johnson now argues that
the error caused him prejudice warranting habeas relief.
Separately, Johnson urges that the prosecutor’s calling
Slaughter to testify knowing that Slaughter would invoke his
Fifth Amendment privilege denied him of due process. For
the reasons that follow, we will affirm the District Court’s
denial of Johnson’s habeas petition.
3
I. BACKGROUND
Johnson’s second trial began on May 28, 2009 and
lasted four days. The Commonwealth’s witnesses included
Dr. Lieberman, the medical examiner, who testified that
Flomo was shot in his right elbow and wrist area, as well as
his chest. He opined that the gunshot to the chest caused
significant damage to his liver, right lower lung, heart, and
left lung, and as such was the “more immediately fatal of all
three gunshot wounds.” R.579.1 Lieberman also testified that
the muzzle of the gun was fired from two-and-one-half to
three feet from Flomo. He opined that the entries were on the
right side of his body, “including the shot that actually
kill[ed] him, the one to his heart, the most immediately fatal
one.” R.595. Given the scenario of Flomo’s sitting in the
driver’s seat of the car, Lieberman testified that the shots
could only have come from the front passenger’s side of the
vehicle.
Further, a firearms expert testified that two particles of
unburnt gunshot residue were recovered from the front
passenger’s side armrest, indicating that the gun was within
three feet of the passenger’s side window.
There was no physical evidence, however, linking
Johnson to the crime scene. The Commonwealth offered two
eyewitnesses, Brenda Bowens and Nora Williams, each of
whom implicated Slaughter and Johnson and identified
Johnson as the passenger’s side shooter. The Commonwealth
1
Citations to the record, unless otherwise indicated,
refer to the PDF page number of Part 4 of Johnson’s state
court record per the ECF docket entry dated April 21, 2015.
4
also put Slaughter on the stand and, when he refused to
testify, introduced the statement he gave to police implicating
Johnson. Because Slaughter’s statement was admitted
erroneously, and the remaining two identifications are central
to our analysis as to harmless error, we recount their
testimony in some detail.
A. Brenda Bowens
To support her crack addiction, Bowens worked as a
prostitute in the area of 20th Street and Cecil B. Moore
Avenue. Slaughter, whom she knew as “Muk,” and Johnson,
whom she knew as “Juice,” were her drug dealers. R.647. She
testified that she had known Johnson for “five, six years,” and
Slaughter for “ten, twelve.” R.647. In fact, she “would see
them every day” because she “always bought crack from
them.” R.647–48.
On the morning of the murder, Bowens reported being
solicited by a man near the intersection of 20th and Cecil B.
Moore. She declined because she intended to go into a nearby
house to get high.2 She crossed the street and reported the
encounter to Slaughter and Johnson, who were walking up
2
At least two houses on the street functioned as crack
houses, including the house in which Bowens testified she
intended to get high. There was some indication that Johnson
and Slaughter sold drugs from these houses also, and that
Bowens and Williams, as well as others, would buy their
drugs from there. We note that while defense counsel
objected to some of these questions concerning the nature of
those houses, other testimony regarding the houses was
admitted into evidence.
5
Cecil B. Moore Avenue. Bowens then continued to an all-
night convenience store around the corner. Upon her return
shortly after, she saw the same car that had solicited her
before. As she approached the house, she “turned around” and
“[saw] Muk and Juice. Muk’s standing on the driver’s side;
Juice was on the other side, the passenger[’s] side.” R.632.
She testified that Johnson was “leaning in the car.” R.689.
She stated:
I didn’t “see” it happen, but I saw flashes and I
heard a gunshot, and immediately I ran, because
that’s what I do. When you see two
neighborhood drug dealing guys, you run,
because, you know. I don’t have to go into
detail. But I ran and started banging on the
door, [saying] “Let me the hell in.”
R.633. While banging on the door to be let in, she “glanced”
behind her to “make sure that [she] was . . . out of harm’s
way.” R.633. She then “heard another shot” and saw the
“flash again.” R.633. She testified that Johnson, at that point,
was still standing at the passenger’s side door. She then
finally was able to enter the house.
At trial, the prosecutor reviewed the entire episode
using a demonstrative map of the intersection. Bowens
identified the house she intended to smoke in as well as where
other events occurred. Bowens also addressed her failure to
come forward to the police initially:
Q. . . . When you went the second time to
Homicide, after they’re talking to you and you
6
told them what you saw, what caused you to tell
them that you saw this? What happened?
...
A. I was saying that my family was real
concerned that I was in danger, someone was
going to kill me and that I needed help.
R.643–44.
On cross-examination, Bowens was impeached with
her “severe drug habit,” R.655, and criminal history. Bowens
admitted to a prior conviction (for which she was sentenced
to eleven-and-a-half to twenty-three months in jail), to being
on probation, and to having a bench warrant out for her arrest
when she gave her statement. She was also impeached with
her failure to report what she saw to the police and her initial
refusal to give a statement after she was picked up for
questioning. Bowens disclosed that, during these
interrogations, she was “promised” that she would be given
help with her drug addiction.3 R.663.
Bowens’s perception of the shooting was also
impeached. While Bowens reported seeing Johnson leaning
into Flomo’s car, she did not see anything in his hands.
Bowens admitted that she only glanced in the direction of the
shooting for what defense counsel characterized as a “mini-
second . . . a flash.” R.687. Defense counsel also impeached
her with her prior inconsistent statements about the exact
location of Flomo’s car in the intersection when the shooting
occurred. Finally, the distance between the shooting and the
3
This help came by way of a voluntary prosecution
and commitment to a drug rehabilitation program.
7
crack house Bowens attempted to enter (and in the vicinity of
which Bowens reportedly saw the shooting) was, defense
counsel urged in his closing, approximately 600 feet.4
On re-direct, the prosecutor attempted to rehabilitate
Bowens on a number of points. He reviewed Bowens’s
identification of Johnson again:
Q. In terms of that car, and counsel has asked
you where the car was back and forth. When
you see the shooting, are you concentrating on
where the car is?
A. No, not at all.
Q. What are you concentrating on?
A. Me getting away.
Q. And did you recognize the guys who did it?
A. Yes
Q. And who are they?
A. Juice and Muk.
Q. And is Juice here now?
A. Yes, sir.
...
Q. Point to Juice.
A. Right there (indicating)
Q. No doubt in your mind it was them, right?
...
A. That’s a hard question. It was so many years
ago, and I done been through so much, sir. I’m
4
At trial, the jury was presented with a map of the
area. The prosecutor said during his closing that, “It’s not 600
feet. Take the measurement. It’s about 300 and something.”
R.1215.
8
really honestly going to say that I am not really
sure. I’m really honestly going to say that I’m
not really sure. I been through so fucking much.
I been through so much.
Q. And I know you’ve been through – Brenda,
listen to me –
[DEFENSE COUNSEL]: Your Honor,
may we have a break at this point?
[PROSECUTOR]: Look at me. No.
[DEFENSE COUNSEL]: Excuse me.
I’m asking the Court.
THE COURT: No. Well, let me see. Are
you all right? You all right?
(Witness crying.)
[DEFENSE COUNSEL]: Your Honor,
perhaps we should take a break.
THE COURT: We’re going to take a
break.
R.727–29.
After a brief recess, Bowens testified that she was
“very tired,” and agreed with the prosecutor that she was
“emotionally drained” and “want[ed] to get this over with.”
R.731. She continued, however, and testified again that
Slaughter and Johnson stood next to Flomo’s car:
Q. Okay. Now, I’m going to ask you this: That
morning when you were out there and you hear
the shot, what do you see?
...
[A.] That morning when I was out there, I see
Juice and Muk standing at the car.
9
...
Q. You sure of that?
A. Am I positive, a hundred percent positive? I
just said I wasn’t. You asked me did I have any
doubt, and I just said it. I was just – I mean, I’m
emotionally drained. You all asking me the
same thing over and over and over again.
Q. When you made the statement to homicide,
did you tell them the truth?
...
[A.] Yes.
...
Q. When you went to the preliminary hearing –
remember it was just a judge, no jury, and I was
there and asked you questions – did you tell that
judge the truth?
A. Yes.
Q. When you were here in 2007 before that
judge and another jury, did you tell this judge
the truth?
THE COURT: I was the Judge.
THE WITNESS: Yes.
BY [THE PROSECUTOR]:
Q. Are you telling us the truth now?
A. Yes.
R.732–34. The prosecutor then read portions of Bowens’s
prior consistent statements to the jury, which confirmed the
essential details of her eyewitness account, including that
Johnson stood on the passenger’s side of Flomo’s car.5
5
Specifically, in her statement to the police, Bowens
stated, “Juice was standing at the passenger side.” R.737. The
10
prosecutor read other portions of Bowens’s statements which
also confirmed her testimony, including the following:
Q. First page. The fourth Q, and I’ll read the
question, okay? Tell me if you’re reading along
with me. “Can you go on in your own words
and tell us what you know about the shooting.”
Do you see that? I’m going to read your answer.
“I heard one shot. I looked toward C.B. Moore
Avenue. I saw the car stopped. Muk was
standing on the driver’s side . . . of the car in the
street. Juice was standing at the passenger side.
I seen two flashes go off inside the car. I
couldn’t see who was shooting. Then I saw
Muk run away from the car towards the
sidewalk. That’s when I ran inside the house. I
didn’t see which way Juice ran.” Did you say
that?
A. Yes, Sir.
Q. That’s what happened?
A. Yes, Sir.
...
Q. “Question: Had you spoken to Police Officer
Flomo prior to him being shot?” Your answer: .
. . “I didn’t know he was a police officer until
the next day. I was on the way to the store at
19th and C.B. Moore. . . . I was crossing the
street at 20th and Cecil B. Moore. Crossing
Cecil B. Moore, his car was stopped at the light
on C.B. Moore facing 21st.” “He said to me,
‘Hi, baby, what’s up? What you doing?’ I didn’t
want to be bothered. I just said to him, ‘Get the
11
Bowens also testified that she feared for her
safety. She stated that she had to be “relocated” after
giving her statement to the police.6 R.649. The
prosecutor also questioned whether persons in the
courtroom might have threatened her:
fuck out of here,’ and kept walking. That’s
when I seen Muk and Juice on C.B. Moore,
between 19th and 20th. I said to them, ‘Yo, hi.
What’s up? That guy just tried picking me up.’
They kept walking towards 20th Street. I kept
walking to the store at 19th.”
That’s what happened?
A. Yes, Sir.
...
Q. “Question: How long have you known Muk
and Juice?” “Answer: I’ve known Muk over ten
years. I have known Juice about five years.”
True?
A. Yes, Sir.
Q. “Question: Do you know Muk or Juice to
carry a gun?” “Answer: On occasion I see Muk
with one. He wears a holster. It’s a black
holster. The gun was big with a brown handle. I
never see Juice with one, but I know he has a
bad temper. He kicks doors in and stuff like
that.” True?
A. That’s true.
R.736-40.
6
Bowens violated the terms of this relocation by
returning to the intersection to get high. This occasioned her
voluntary prosecution and commitment to a rehabilitation
program.
12
Q. You said you were worried or not
comfortable about certain people in this room.
Are you afraid of the defendant’s people and his
family that are sitting in this room right now?
A. I’m afraid of everything right now, you
know. I’m afraid of everything right now. I’m
very – yeah, very afraid of everything. Not only
them, but everybody. It’s like everybody out to
get me. When this shit went down, everybody
was out to get me.
...
THE COURT: . . . You want to get off
the stand; Is that correct?
THE WITNESS: Yes. I have a life. I’m
just tired of being badgered. It’s been
five, four years I’ve been being
badgered, badgered, badgered. The DA
been badgering me, other people
badgering me, everybody badgering me.
R.748–50. She was then briefly recrossed and
redirected7 before being excused.8
7
On this final redirect examination, she broke down in
tears again:
Q. Brenda, your life is at stake right now, right?
A. (No response.)
Q. Right? Yes or no.
A. My life is at stake, ever since this stuff went
down, ever since my name and my face was on
the news and all that happened. And it’s left me
hanging like that, you’re damn right.
13
Q. And at the preliminary hearing, that lawyer
was there every time.
A. Who?
Q. At the preliminary hearing when you first
testified, you were sure of what you said,
correct?
[DEFENSE COUNSEL]: Objection,
Your Honor.
THE COURT: Overruled.
THE WITNESS: You can’t keep
bouncing me back and forth. I’m going
crazy. I don’t know nothing now.
THE COURT: No. Ma’am --
THE WITNESS: I don't know nothing
now.
THE COURT: Ma’am --
THE WITNESS: I don’t know nothing.
THE COURT: Ma’am, let me ask you a
question.
THE WITNESS: I don’t know nothing.
Only thing I know is that I was on TV.
Anybody can fucking kill me, anybody.
Anybody could have killed me. I’m just
happy to be alive. That’s all.
(Witness crying.)
THE WITNESS: Anybody could have
just killed me. Everybody left me
hanging –
[DEFENSE COUNSEL]: Your Honor –
THE WITNESS: – the cops, everybody
else left me fucking hanging.
14
B. Nora Williams
The Commonwealth next called Nora Williams, who
also placed Johnson at the passenger’s side of Flomo’s car
during the shooting. Williams was also a prostitute who
worked in the vicinity of 20th Street and Cecil B. Moore
Avenue and who knew Bowens from having worked there.9
Williams knew Johnson and Slaughter too and testified that
she saw them every day on the block. Williams also
purchased her drugs from them, sometimes several times a
day.
On the morning of the murder, Williams had just
finished with a customer when she saw Bowens across the
THE COURT: All right. Please. Are you
done, Mr. Vega?
THE WITNESS: Put my face on TV and
everything.
[THE PROSECUTOR]: I’m going to be
done. That’s it.
THE COURT: Very well. Ma’am, you’re
excused.
(Witness crying.)
R.753-55.
8
At the time of the second trial, Bowens had been
sober for two and a half years and had two jobs.
9
Their relationship, however, was acrimonious.
Williams testified, “I really don’t care too much about
[Bowens].” R.774. Bowens, who testified to knowing
Williams, said that she “didn’t like her” either. R.656. At one
time, both were in a “fist fight” with each other in the crack
house on that block. R.657.
15
street “arguing” with a man in a car.10 R.760. She then saw
Bowens “walk away.” R.761. She testified that Bowens
“walked to [Slaughter and Johnson]” and “talked to them for
a minute” before Bowens left the area. R.762–63. Then
Williams saw “the car come back around” the block. R.764.
When asked what happened next, she relayed the following:
Q. When you see the car on 20th, what
happens?
A. That’s when I seen Muk and Juice running
towards the car.
Q. Okay. When they run towards the car, do
they get to the car?
A. Yes.
Q. And what happens?
A. That’s when I just heard – I seen them both
had guns. I heard the guns start just shooting,
pop, pop. And I couldn’t really do nothing or
move or nothing. There was nowhere to hide.
Q. Okay. Now, I’m going to take you back a
little. You said you see Muk and Juice coming
towards the car, right?
A. Uh-huh, yes.
Q. Tell me, when Muk gets to the car, what side
of the car does he go on?
A. He’s on the driver’s side.
10
On cross examination, Williams testified that she
observed Bowens get into Flomo’s car and argue with Flomo
in the car itself. On redirect, however, Williams clarified that
when she first observed Bowens, Bowens was standing near
Flomo’s car and therefore had only “assumed” Bowens was
getting out of it. R.833.
16
Q. When you see Juice get to the car, what side
does he get on?
A. He’s on the passenger side.
Q. And in looking at them, are you facing the
front of the car or the back of the car?
A. I’m like the front, yeah, the front of the car.
Q. Now, they’re at the car. When they’re
getting to the car, do you see anything in their
hands?
A. Guns.
Q. So we could be clear, does Muk have a gun
in his hand?
A. Yes.
Q. Does Juice have a gun in his hand?
A. Yes.
...
Q. Okay. You said Muk’s on the driver’s side;
Juice on the passenger. When they get up to the
car, you said you saw the guns. What happens
next?
A. Then I heard the firing, pow, pow, pow.
Q. Once the shooting stops, what does Muk do?
What does Juice do?
A. They run off.
R.764–67; see also R.798 (testifying on cross examination
that Johnson was on the “passenger side”). Williams reported
being “right across the street,” which was, in her estimation,
approximately 20 feet from the shooting when it occurred.
R.826.
Williams also initially declined to give a statement to
the police, although she eventually did. Williams agreed with
17
the prosecutor that, after she gave her statement, “certain
things happen[ed] to [her] in the neighborhood that caused the
police department to relocate [her].” R.773. Williams also
testified that she relayed the same testimony at the
preliminary hearing and at the first trial.
Williams was impeached with her drug history. She
admitted to having a 50-bag-a-day crack habit at the time of
the murder, to having some cocaine in her system on the
morning of the murder, and to possibly having cocaine in her
system when she gave her statement to police. She was also
questioned about her motivation in giving a statement to the
police, including the fact that she had some “open cases”11
and a “bench warrant on [her]” when she was interrogated.
R.804. She also said that, at one of those interrogations, the
police blamed her for the murder. Williams testified that she
only “glance[d]” at the shooting, R.821, for what defense
counsel characterized as a “mini-second,” R.819. Finally,
Williams did not agree with defense counsel’s assertion that
Johnson and Slaughter were “leaning into the car.” R.819.
Instead, she reported them to be a “foot, foot and a half”
away.12 R.822.
11
Although defense counsel mentioned this criminal
history, it was not explored in any detail.
12
On redirect examination, the prosecutor spent some
time attempting to establish just how far she thought the men
were from the car. Apparently gesturing in the courtroom, the
prosecutor asked her if “[Johnson] could touch [the car] if he
wanted to,” to which Williams responded, “Yes.” R.834.
18
At the same time, Williams testified that there
“[wasn’t] any question in [her] mind” about what she saw.13
R.801.
C. Mumin Slaughter
The prosecution’s last witness was Mumin Slaughter,
Johnson’s convicted co-defendant. Slaughter had given a
statement to police implicating Johnson, and based on this
cooperation and his anticipated testimony at Johnson’s re-
trial, his sentence had been vacated. However, at trial, he
essentially refused to testify. The jury was then read portions
of his statement over defense counsel’s objection and
Slaughter’s repudiation of the statement itself. Because
Johnson argues that the introduction of this statement violated
his rights and substantially influenced the verdict, we recount
not only the statement itself, but also the context within which
it was introduced.
Just before Slaughter was to testify, counsel appeared
in the judge’s robing room, which was out of earshot of the
jury. The prosecutor informed the trial judge that Slaughter
was refusing to come upstairs to testify despite being
subpoenaed. The trial judge stated that Slaughter had no Fifth
Amendment privilege and the prosecutor agreed.14 Slaughter
was then brought into the courtroom and called to the witness
stand.
13
At the time of the second trial, Williams had been
clean for two years, except for occasional marijuana use.
14
The trial court admitted later that this was error.
App. 19 n.8. Because Slaughter’s sentence had been vacated,
he was still entitled to exercise his privilege. Id.
19
Slaughter answered a few questions, confirming, for
example, that he had been convicted of murder in the first
trial, that his sentence had been vacated, and that he had
spoken to the prosecutor that day and understood he would be
held in contempt if he refused to testify. But he denied
making the statement to police that implicated Johnson. When
the prosecutor began to press Slaughter on that issue, he
became uncooperative:
Q. . . . Did you make a statement?
A. No.
Q. Did you, on August 26, 2005, in that period
of time, did you sell drugs?
THE WITNESS: Your Honor, I don’t
know why I’m sitting here. I don’t have
nothing to say.
THE COURT: You’ve been called as a
witness, Mr. Slaughter.
THE WITNESS: Well, I did not witness
anything.
THE COURT: Well, you’ve been called
as a witness because your sentence was
vacated, and I was the sentencing judge
who gave you 25 to 50 years.
...
And we’re here now. And [the
prosecutor] is going to ask you some
questions.
THE WITNESS: I have nothing to say,
Your Honor.
BY [THE PROSECUTOR]:
Q. Good. Well, listen to me a little while longer.
20
[DEFENSE COUNSEL]: Objection,
Your Honor.
THE COURT: No. Overruled. It’s not
your – you don’t represent him.
BY [THE PROSECUTOR]:
Q. Sir, did you serve a federal sentence?
A. I plead the fifth. I don’t have nothing to say.
THE COURT: You don’t have a Fifth
Amendment privilege.
THE WITNESS: Well, I’m just going to
sit here with nothing to say, because you
all can’t force me to do anything.
R.847–48. At sidebar, counsel eventually agreed to attempt to
contact Slaughter’s attorney and court recessed for the
weekend.
On Monday, counsel convened in the robing room
outside the presence of the jury. Slaughter’s trial attorney
appeared in court and explained Slaughter’s state of mind:
Now that he’s realized – he says that he’s being
asked to testify, he said he doesn’t want to do
that. He says he doesn’t want to share the bad
fortune that has descended on him in this case,
having been improperly convicted, on
somebody else. . . .
He talked about [how] he thought he was
misle[d] by the District Attorney’s office in
some fashion and reiterated that he didn’t want
to bring any – any harm to Mr. Johnson, and at
one point said that he really had no knowledge
21
of, you know, who, in fact, killed the officer in
this case.
R.862–63. The Court agreed with the Commonwealth,
however, that Slaughter should be brought out again and held
in contempt or resentenced if he refused to testify. The jury
then returned to the courtroom. The prosecutor resumed his
questioning, over defense counsel’s objection. Slaughter
admitted to speaking to the prosecutor and his lawyer but
answered little else.
The Court then interrupted Johnson’s trial to
resentence Slaughter. The jury was escorted from the
courtroom again, as was Johnson, and Slaughter was seated in
the defendant’s chair. A separate “sentencing hearing” was
then conducted and recorded in a separate transcript under a
different case number. See R.404–24. Ultimately, no new
sentence was imposed; instead the parties probed Slaughter’s
unwillingness to testify further. Slaughter testified:
THE DEFENDANT: [Slaughter] . . . So I put a
freaking statement together to try to help
myself, to make him not go to trial. Now he
want me to come up here and say he did do all
this.
THE COURT: Well, quite frankly, all you have
to do is say you gave a statement and answer his
questions.
THE DEFENDANT: But if I do that, it’s going
to make his trial look bad. The thing – he said
he could help us get deals, just to help me. Now
he want me to go up there and say all this. It’s
going to mess up the trial and make him look
22
like a murderer. Nobody don’t believe us
anyway that we didn’t do it. But being though I
got 50 years, I wanted to help myself and make
it back to my kids.
Now he want me to sit here and say he
did do this. I’m not willing to do that, because
that’s going to make me a liar and that’s going
to make me look bad, and I’m going to have
that on my conscience.
R.409. The prosecutor then recommended that given “this
defendant’s attitude and not showing any type of remorse
and, in fact, trying to undermine the truth-seeking process of
the Commonwealth trying to bring some justice,” Slaughter
should be resentenced in line with his original sentence.
R.414. The transcript then ended at this point and Johnson’s
trial resumed.15
The jury was brought out and the prosecutor resumed
his questioning. After Slaughter remained essentially silent,
the prosecutor presented Slaughter with his statement and,
over Johnson’s attorney’s objections,16 the Court permitted
15
The prosecutor indicated that if Slaughter continued
to refuse to testify he would go “line by line” over Slaughter’s
statement. R.411. The prosecutor’s apparent strategy was to
use the testimony from the “sentencing hearing” to establish
that Slaughter adopted the statement.
16
The trial court denied defense counsel’s motion for a
mistrial. Defense counsel had earlier indicated that he would
make a motion for a mistrial on the grounds that Slaughter’s
refusal to testify prevented him from cross examining
23
the prosecutor to put Slaughter’s statement on the overhead
projector screen so that the jury could see it. Slaughter
initially denied making the statement to police. He called the
prosecutor a “liar,” a “sneak,” and “vicious.” R.895. After
being asked if he had said, at the earlier “sentencing hearing,”
that he had “put a freaking statement together,” R.898,
Slaughter interjected in front of the jury:
THE WITNESS: Listen, I got found guilty for a
fucking murder that nobody don’t know who
killed this man. They gave me 50 years and
nobody said I did nothing. They trying to
railroad us. They gave me 50 years. My own
lawyer, even him told me I can never get back
in court to get back to my kids or nothing. They
said just say that you all did it and he won’t
want to go to trial. You can get your 50 years
back and he’ll take a statement – I mean, he’ll
take a deal. He won’t want to go nowhere,
because he be scared if I come out there with all
these other liars saying that we did something.
I didn’t have no choice. I didn’t know
what to do. I was scared. A desperate man do
desperate things. I tried it. Now, he didn’t go for
it. He didn’t take it because he know me. He
know that I was lying. He knew that I wouldn’t
do this, because it was a lie.
…
Q. Does that mean he’s your friend?
Slaughter, and thus that Johnson’s “right . . . to confrontation
of a witness has now been destroyed.” R.881.
24
A. This is bullshit. You lie. You lie.
Q. Answer the question. Is he your friend?
A. This is bullshit.
Q. Is he your friend?
A. You trying to come in here and make like I
really said he did this.
R.899–900. Defense counsel then asked Slaughter a number
of questions, most of which went unanswered, and finally,
Slaughter was excused.
The prosecutor subsequently called a detective who
read Slaughter’s statement, line by line, to the jury. In the
written statement, Slaughter indicated that he went by the
nickname “Muk” and that he knew Johnson as “Juice;” that
on the night of the murder he was on the corner of 20th and
C.B. Moore selling crack; that Bowens had approached them
to report the attempted solicitation by Flomo; that, when the
car pulled up, “Juice pulled out his gun and started firing at
the guy through the passenger side;” and that they both then
ran off in different directions. R.922–24.
Finally, at the close of the Commonwealth’s case, the
prosecutor called the court reporter, who then read
Slaughter’s earlier sentencing hearing transcript in its entirety
to the jury. The Commonwealth then rested.
Johnson presented only one witness, Deborah Bryant,
who also testified in the first trial. Her testimony was read in
by stipulation because she was unavailable. Although Bryant
denied knowing anything about the murder at the time of the
first trial, defense counsel impeached her at the first trial by
reading portions of a statement, given to police at an earlier
25
time, claiming that two men by the name of “Peanut” and
“Jeff” shot Flomo. R.1113.
The jury was then instructed and retired to deliberate.
During deliberations, the jury sent out two notes, to which the
judge responded by sending back some of the evidence and
giving them further instructions on the law.17 The jury then
17
The jury first requested that certain evidence be sent
back to the jury room including crime scene photographs, the
demonstrative map of the intersection, and Slaughter’s
written statement. The trial judge, however, did not permit the
statement to be given to the jury and the jury did not ask for it
again.
Later in the day, the jury sent out another note
containing two questions. Before responding, the judge re-
charged the jury on third degree murder. The judge then said:
Question No. 1: “Can the defendant be
convicted of murder parenthesis in the third
degree even if we don’t believe he is the
shooter?” If you have been convinced beyond a
reasonable doubt that the defendant is part of a
conspiracy or is an accomplice, the answer to
that question is, yes, he can be convicted of
murder in the third degree even if you don’t
believe he is the shooter.
R.1292. The Judge had earlier instructed the jury on the
definition of an accomplice. The judge continued:
The second question is: “If we can’t agree on
one of the charges, does that equal a hung jury
26
found Johnson guilty of third-degree murder and criminal
conspiracy, and the Court sentenced Johnson to consecutive
prison terms of 20 to 40 years and 10 to 20 years for the
conspiracy.
D. Post-trial Proceedings
The Pennsylvania Superior Court affirmed Johnson’s
conviction. See Commonwealth. v. Johnson, 29 A.3d 821 (Pa.
Super. Ct. 2011). On direct appeal, Johnson raised three
claims, two of which are relevant here. First, he argued that
the introduction of Slaughter’s statement violated his right to
confront witnesses under the Sixth Amendment. The Superior
Court recognized that the “contents of Slaughter’s statement
should not have been allowed in evidence because . . . their
introduction violated [Johnson]’s right of confrontation,” R.
Part 1, at 11, but nonetheless found the error harmless.
Second, Johnson argued that the prosecutor violated his Due
Process Clause rights when he called Slaughter as a witness,
knowing that Slaughter would refuse to testify. The Superior
Court concluded that both parties and the trial court were
under a mistaken assumption that Slaughter no longer had a
Fifth Amendment privilege, but that its introduction was not a
Due Process Clause violation. It reasoned that calling
for all the charges?” No, it does not. The
charges are individual.
R.1292. The jurors resumed deliberations and, twenty
minutes later, returned a verdict of guilty against Johnson on
both counts.
27
Slaughter was “not an improper attempt by the
Commonwealth to create an inference of guilt by association
between Johnson and Slaughter.” R. Part 1, at 17. The
Pennsylvania Supreme Court then denied Johnson’s petition
for allowance of appeal. See Commonwealth v. Johnson, 46
A.3d 716 (Pa. 2012).
Johnson filed a counseled petition for federal habeas
corpus relief and raised three habeas claims: “(1) denial of
due process by the prosecution’s deliberate elicitation of his
co-defendant’s assertion of the Fifth Amendment before the
jury, (2) denial of [his] Sixth Amendment right to
confrontation of witnesses, and (3) denial of due process by
introduction of evidence falsely implying that Johnson
threatened a witness.” Johnson v. Lamas, Civ. Action No. 12-
5156, 2013 WL 8744692, at *3 (E.D. Pa. Dec. 18, 2013). The
Magistrate Judge issued a Report and Recommendation that
habeas relief be denied on all three claims. Although the
Magistrate Judge concluded that “federal courts do not owe
deference to the state court’s harmless error conclusion,” the
Magistrate Judge found that the evidence against Johnson
“was strong enough, even apart from the evidence admitted in
violation of [the Confrontation Clause], that the error did not
cause actual prejudice.” Id. at *16.
The District Court adopted the Magistrate Judge’s
Report and Recommendation, and issued a certificate of
appealability as to Johnson’s Confrontation Clause claim.
Johnson v. Lamas, Civ. Action No. 12-5156, 2014 WL
3035671, at *1 (E.D. Pa. July 1, 2014). We subsequently
granted Johnson’s motion to expand the certificate of
appealability to include the issue of “whether the District
Court erred in denying Johnson’s claim that his due process
28
rights were violated when the Commonwealth called and
examined a witness who invoked his Fifth Amendment
privilege against self-incrimination.” Order, dated May 4,
2015. We now turn to these two questions.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over the habeas
corpus petition pursuant to 28 U.S.C. § 2254, and we have
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
Since the District Court did not hold an evidentiary hearing,
our review over the District Court’s denial of Johnson’s
habeas petition is plenary. See Thomas v. Horn, 570 F.3d 105,
113 (3d Cir. 2009). At the same time, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§
2254(d), 2254(e), requires that we “afford considerable
deference to state courts’ legal and factual determinations,”
Palmer v. Hendricks, 592 F.3d 386, 391–92 (3d Cir. 2010)
(internal quotation marks omitted).
III. CONFRONTATION CLAUSE CLAIM
The introduction of Slaughter’s statement identifying
Johnson as being the passenger’s side shooter after Slaughter
refused to submit to cross-examination violated Johnson’s
Sixth Amendment right to confront witnesses against him.
This much the Commonwealth concedes. Therefore, the only
question we must decide is whether this error was harmless.
For the reasons that follow, we find that it was.
29
A. Harmless Error Standard
To be entitled to habeas relief, a habeas petitioner must
establish that the trial error “had [a] substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). Under this test, we
may grant relief only if we have a “grave doubt” as to
whether the error at trial had a substantial and injurious effect
or influence. Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015)
(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). In
other words, “[t]here must be more than a ‘reasonable
probability’ that the error was harmful.” Id. (quoting Brecht,
507 U.S. at 637).
Several factors guide our review of Confrontation
Clause errors, including “the importance of the witness’
testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986).
The Supreme Court has recently discussed the
framework we must apply when a habeas petitioner claims
that a state court erred in finding that a constitutional error
was harmless. In Davis v. Ayala, the Court confirmed that the
Brecht standard still governs our harmless error analysis on
collateral review.18 135 S. Ct. at 2198 (“[Petitioner] must
18
Davis v. Ayala was decided during the pendency of
this appeal. We requested and received letter briefs from both
30
meet the Brecht standard . . . .”). However, where a state
court has concluded that the error was harmless on direct
review, the Supreme Court clarified that we must defer to that
determination under AEDPA unless the state court
unreasonably applied Chapman v. California.19 See id. at
2198–99 (noting that where the state court decides
harmlessness, AEDPA’s “highly deferential standards kick
in”). Although the Supreme Court had previously held in Fry
v. Pliler that Brecht “subsumes” AEDPA’s deference
requirement, “[t]he Fry Court did not hold—and would have
had no possible basis for holding—that Brecht somehow
abrogate[d] the limitation on federal habeas relief that §
2254(d) plainly sets out.” Id. at 2198 (quoting Fry v. Pliler,
551 U.S. 112, 119–20 (2007)). Therefore, while Brecht
“subsumes” AEDPA’s requirement such that we need not
“‘formal[ly]’ apply both Brecht and ‘AEDPA/Chapman,’”
parties addressing the “significance of [Ayala] for our
harmless error analysis in this case, including but not limited
to what consideration is due the state court’s harmless error
analysis in view of Fry v. Pliler, 551 U.S. 112 (2007),
Mitchell v. Esparza, 540 U.S. 12, 18 (2003), and Brecht v.
Abrahamson, 507 U.S. 619 (1993).” Letter to Counsel, dated
Jan. 21, 2016.
19
Chapman, which applies to the review of
constitutional errors on direct review, requires that the state
prove that a particular constitutional error is “harmless
beyond a reasonable doubt.” Chapman v. California, 386 U.S.
18, 24 (1967). Conversely, in recognition of the concerns of
finality, comity, and federalism, Brecht shifts the burden on
collateral review to the petitioner to demonstrate that the error
had a “substantial and injurious effect . . . on the verdict.”
Ayala, 135 S. Ct. at 2198 (quoting O’Neal, 513 U.S. at 436).
31
AEDPA § 2254(d) nevertheless “sets forth a precondition to
the grant of habeas relief.” Id. (alteration in original)
(emphasis added) (quoting Fry, 551 U.S. at 119–20).20
Under AEDPA, an application for habeas relief shall
not be granted for any claim adjudicated “on the merits” in
state court unless the state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C.
2254(d)(1). A harmlessness determination constitutes an
adjudication on the merits. See Ayala, 135 S. Ct. at 2198(holding that California supreme court harmlessness decision
“undoubtedly constitute[d] an adjudication . . . ‘on the
merits’”); Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003).
Consequently, a “federal court may not award habeas relief
under § 2254 unless the harmlessness determination itself
was unreasonable.” Ayala, 135 S. Ct. at 2199 (quoting Fry,
551 U.S. at 119). “And a state-court decision is not
unreasonable if ‘fair-minded jurists could disagree on [its]
correctness.’” Id. (quoting Harrington v. Richter, 562 U.S.
86, 101 (2011)). Thus, a habeas petitioner must show that the
state court’s harmless error determination “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.”21 Id. (quoting Harrington, 562
U.S. at 103).
20
We therefore reject Johnson’s argument that “Ayala
ha[d] no impact on this case,” Johnson Letter Br. 2, because
Ayala did provide clarification that AEDPA is a
“precondition” to any habeas relief, 135 S. Ct. at 2199.
21
Johnson urges that “given the manner in which the
Superior Court addressed the issues, no deference is owed
32
In sum, we must ask whether a fair-minded jurist could
agree with the Superior Court’s conclusion that the
introduction of Slaughter’s statement was harmless. If we find
that she could, then Johnson “necessarily cannot satisfy”
Brecht and we must give AEDPA deference to the Superior
Court’s determination, even if we might decide the case
differently were we to undertake de novo review. Ayala, 135
S. Ct. at 2199.
B. Application
Here, the Superior Court concluded that the
introduction of Slaughter’s statement was harmless because it
“was merely cumulative of the testimony provided by
Bowens and Williams.” R. Part 1, at 16. In so holding, it
recounted Bowens’s and Williams’s identifications, id. at 12–
15, their impeachment, id. at 14, and some of the factors that
rehabilitated their credibility, including that both
eyewitnesses had known Johnson for years, that both
under § 2254.” Johnson Letter Br. 2. We disagree. Although
the Superior Court did not cite Chapman or Van Arsdall
explicitly, it specifically considered whether the admission
“prejudice[d] the defendant” and “could not have influenced
the outcome of the case.” R. Part 1, at 11 (citing
Commonwealth v. Jones, 668 A.2d 491, 506 (Pa. 1995)). As
the Supreme Court has repeatedly said, AEDPA “does not
require citation of [the Supreme Court’s] cases [nor] . . . even
. . . awareness” of them, “so long as neither the reasoning nor
the result . . . contradicts them.” Early v. Packer, 537 U.S. 3,
8 (2002). The Superior Court’s opinion is consistent with
Chapman.
33
provided consistent identifications at the preliminary
hearings, and were “unwavering in their identifications”
during “vigorous cross-examination,” id. at 15–16; 15 n.8.
Although the District Court did not analyze whether it owed
deference to this conclusion, it nonetheless concluded that the
error was harmless under Brecht.
Applying the relevant standard, we find that a
reasonable jurist could conclude that the cumulative nature of
Slaughter’s identification rendered its erroneous introduction
harmless. The Commonwealth presented two key witnesses,
Bowens and Williams, whose identifications fundamentally
corroborated each other on points critical to the
Commonwealth’s theory of the case. Williams corroborated
that Bowens spoke to Johnson after being solicited by Flomo,
a conversation that the Commonwealth theorized instigated
the attack. Williams and Bowens, moreover, reported seeing
the men standing near or leaning on the car before the
shooting and, crucially, both saw Johnson standing at the
passenger’s side of the car when they saw and heard gun
shots. This consistent placement of Johnson at the passenger’s
side of Flomo’s car is of particular significance here in light
of Dr. Lieberman’s testimony that the “most immediately
fatal” gunshot came from that location. Slaughter’s statement,
therefore, added very little, if any, new substance to their
consistent narratives. In this sense, the Superior Court
reasonably concluded that the written statement given by
Slaughter was cumulative of Bowens’s and Williams’s
testimony. See Van Arsdall, 475 U.S. at 684 (directing courts
to consider, among a list of non-exhaustive factors, whether
the erroneously admitted statement was “cumulative” of other
evidence).
34
Johnson responds that Bowens’s and Williams’s
testimony, apart from Slaughter’s statement, left “serious
doubt” as to Johnson’s guilt because Bowens and Williams
were significantly impeached. Johnson Br. 22. Johnson points
to their criminal and drug histories, proffers motives that
might have biased their testimony, and highlights deficiencies
in their perception of the shooting itself, particularly that each
only glanced for a “mini-second.” Reply 12. We cannot say,
however, after reviewing the whole record, that the Superior
Court’s harmlessness determination, which discounted the
effect of this impeachment on the jury, was objectively
unreasonable such that no fair-minded jurist could agree with
it. To the contrary, a fair-minded jurist could find that the
introduction of the statement did not have a substantial effect
on the verdict.
We begin by noting that the jury heard rehabilitation
testimony that bolstered Bowens’s and Williams’s credibility.
It is true that Bowens—exhausted, and in tears—admitted to
some doubt as to her identification. But despite this, Bowens
affirmed on redirect that she had been telling the truth at this
trial, at the previous trial, at the preliminary hearing, and
when she gave her statement to the police. In fact, the jury
actually heard several portions of these prior consistent
identifications. And, unlike Bowens, Williams expressed no
doubt whatsoever during cross-examination. Finally, as the
Superior Court notes, Bowens and Williams had known
Slaughter and Johnson for over five years, making it more
likely that the jury could accept their identifications as
accurate.22
22
Indeed, Bowens and Williams were not simply
casual passers-by of the murder scene. They were intimately
35
Bowens also responded specifically to charges of bias
and fabrication by explaining that she overcame her earlier
hesitancy to give a statement at the urging of her family, who
believed she was in danger and needed help. Further, on
redirect examination, Bowens repeatedly testified that she
feared for her life and that she worried about reprisals. The
jury also heard that Bowens and Williams needed to be
relocated. In short, while “[these] reasons could easily be
disbelieved,” Johnson Br. 23, the jury, which observed both
witnesses throughout their testimony, could have, by the same
token, determined that both were in fact more credible given
their willingness to testify in the face of these fears. In light of
this rehabilitative testimony, we cannot say that the Superior
Court’s determination that Slaughter’s statement was
harmless “was so lacking in justification” that we should
refuse to give it AEDPA deference. Harrington, 562 U.S. at
103.
Next, Johnson directs our attention to the
circumstances surrounding the introduction of Slaughter’s
statement. Johnson argues that the prosecutor’s attempt to
introduce Slaughter’s statement made it the “central focus” of
the trial, and, as a convicted co-defendant, Slaughter’s refusal
familiar with this block in North Philadelphia. Bowens and
Williams knew each other and saw Johnson and Slaughter on
a daily basis to buy drugs, which they often did immediately
after turning a trick on the very same block. They knew the
crack houses on that block and frequented them, and there
were indications at trial that Johnson and Slaughter operated
from those same houses. The jury could have considered this
as well when assessing their credibility.
36
to testify on self-incrimination grounds amplified the
statement’s effect. Reply 11. The Commonwealth replies that
Slaughter’s testimony repudiating the statement in front of the
jury undermined its impact. Although it is difficult to
ascertain the exact effect this episode had on the verdict, we
believe that certain aspects of Slaughter’s statement may have
lessened the effect of the statement. Slaughter not only denied
in front of the jury that he committed the murder, but also
explained that he gave the statement implicating Johnson in
the belief that it would cause Johnson not to go to trial. So
while the corroborative aspects of Slaughter’s statement
might have had some impact on the jury’s verdict, we cannot
be certain that it had as damaging an effect as we typically
find when a nontestifying co-defendant’s statement is
admitted, unrepudiated and unchallenged.23 Cf. Adamson v.
Cathel, 633 F.3d 248, 259–61 (3d Cir. 2011); Vazquez v.
Wilson, 550 F.3d 270, 283 (3d Cir. 2008). Similarly, while
Confrontation Clause errors such as these present a risk of
creating guilt by association, Slaughter blunted those
inferences by denying Johnson’s guilt and even his own.
Taken together with Bowens’s and Williams’s consistent
eyewitness testimony and the forensic evidence, Johnson has
not shown “more than a ‘reasonable possibility’” that the
statement itself was harmful. Ayala, 135 S. Ct at 2198
(quoting Brecht, 507 U.S. at 637).
23
We note that even the trial court, upon hearing
Slaughter’s adamant repudiation, wondered aloud to defense
counsel in his robing room that defense counsel might
actually want Slaughter’s testimony to be admitted. See
R.886.
37
Further, we do not agree with Johnson’s argument that
Slaughter’s statement was the Commonwealth’s only focus.
Indeed, the prosecutor devoted roughly equivalent portions of
his closing to reviewing Bowens’s and Williams’s testimony.
As such, we are not persuaded that Slaughter’s statement had
a “substantial and injurious effect or influence” on the
verdict, even when we consider the circumstances
surrounding its introduction. Brecht, 507 U.S. at 637(emphasis added).
Finally, we disagree with Johnson’s argument that our
prior Brecht harmless error cases compel a finding in his
favor here. Johnson Br. 24 (citing, inter alia, Adamson). In
Adamson, we concluded that a trial court’s Bruton error of
permitting presentation of an accomplice’s inculpatory
statements, without a limiting instruction, was not harmless
under Brecht. 633 F.3d at 260. Johnson likens the evidence in
his case to the evidence there, but they are not on all fours. In
Adamson, the only evidence of the petitioner’s guilt, aside
from the erroneously admitted statements of his accomplices,
was the petitioner’s own confession, the validity of which he
challenged extensively and credibly at trial. Id. at 261–62.
Indeed, “[t]here were no eyewitness statements identifying
[the petitioner] as taking part in the robbery . . . .” Id. at 261.
Likewise, in Washington v. Sec’y Pa. Dep’t of Corrs., the
“only significant evidence against Washington,” aside from
the statement admitted in violation of Bruton, was from a
single co-conspirator who was not an eyewitness to the
murders and who was impeached with “significant
inconsistencies” in his story, in addition to his history of drug
and alcohol abuse, “admitted heavy impairment from drugs”
at the time of the murders, and his motivation to minimize his
own role in the crime. 801 F.3d 160, 162, 171 (3d Cir. 2015).
38
Here, although they faced impeachment, there was not
just one, but two eyewitnesses who were well-acquainted
with Johnson and Slaughter and whose mutually
corroborative testimony established that Johnson stood on the
passenger’s side of the car. Cf. Bond v. Beard, 539 F.3d 256,
276 (3d Cir. 2008) (holding the admission of nontestifying
co-defendant’s confession in violation of Sixth Amendment
harmless where there was defendant’s allegedly coerced
confession but also an eyewitness who testified that he was
“absolutely certain” that defendant committed the crime).
Thus, we do not have the same “doubt” that the verdict was
substantially influenced by the error as we did in Adamson.24
633 F.3d at 260.
24
Johnson urges that the statement influenced the jury
because the first trial ended in a hung jury as to Johnson, so
its use in the second trial must have made a difference. We
are not persuaded. As the District Court noted, a jury may
hang for many reasons unrelated to the credibility of the
eyewitness, including the “idiosyncratic views of a single
juror.” United States v. Newton, 369 F.3d 659, 680 (2d Cir.
2004). Johnson’s view that the only difference was
Slaughter’s statement fails to take into account some of the
nuances in presentation and focus that differed between the
trials as well as the “simpl[e]” fact that “different juries may
view the same facts and testimony differently.” Barker v.
Fleming, 423 F.3d 1085, 1101 (9th Cir. 2005).
Moreover, as indicated by its question during
deliberation and the trial court’s subsequent charge, the
second jury may well have found Johnson guilty of third-
degree murder as an accomplice, even if they were not certain
that he was the shooter. See R.1292; supra n.17.
39
In sum, we do not wish to diminish the importance of
the right to confront witnesses, but because Slaughter’s
statement was cumulative of Bowens’s and Williams’s
largely consistent identifications, the Pennsylvania Superior
Court did not act unreasonably in concluding that the error
was harmless. Therefore, we conclude that Johnson
“necessarily cannot satisfy” the Brecht requirement of
showing that he was “actually prejudiced” by the state court’s
error. Ayala, 135 S. Ct. at 2199. Accordingly, we will affirm
the judgment of the District Court on this aspect of Johnson’s
appeal.
IV. DUE PROCESS CLAIM
Johnson also claims “a separate violation” of his due
process right occurred when the prosecutor successfully
insisted that Slaughter take the stand with full knowledge that
the witness would assert his Fifth Amendment right. Johnson
Br. 12. The Superior Court rejected this claim on the merits,
as did the Magistrate Judge in her Report and
Recommendation which the District Court adopted. Johnson,
Civ. Action No. 12-5156, 2013 WL 8744692, at *14 n.14
(noting that Johnson’s arguments rely on portions of Namet v.
United States, 373 U.S. 179 (1963), involving “merely
dicta”).
We do not need to determine whether we owe
deference to the Superior Court’s determination because we
do not think the authorities Johnson relies upon clearly
establish a due process violation. AEDPA permits habeas
relief only where a state court unreasonably applies “clearly
established federal law.” 28 U.S.C. § 2254. “[C]learly
40
established federal law” means “the governing legal principle
or principles set forth by the Supreme Court at the time the
state court renders its decision.” Dennis v. Sec’y, Pa. Dep’t of
Corr., 834 F.3d 263, 280 (3d Cir. 2016) (quoting Lockyer v.
Andrade, 538 U.S. 63, 71–72 (2003)). Importantly, it only
“refers to the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.” Yarborough v. Alvarado, 541
U.S. 652, 660–61 (2004) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)).
Here, Johnson relies on Namet v. United States, in
which the Supreme Court considered a claim that a
prosecutor’s questioning of two witnesses concerning their
gambling relationship with the defendant with the knowledge
that they would invoke their Fifth Amendment right
constituted reversible error. 373 U.S. at 180. In that case,
however, the Supreme Court rejected the defendant’s
argument of “evidentiary trial error,” and only in dicta did it
consider what type of showing might be necessary to state a
constitutional claim on this theory. Id. at 185. The Supreme
Court explicitly noted that “[n]o constitutional issues of any
kind are presented.” Id. Accordingly, Namet is “off the table”
for habeas purposes. Early, 537 U.S. at 10 (holding that
petitioner’s authorities, which did not “purport[] to interpret
any provision of the Constitution,” could not provide clearly
established federal law within the meaning of § 2254).25
25
Johnson also relies on Douglas v. Alabama, 380
U.S. 415, 420 (1965) (“The circumstances are therefore such
that ‘inferences from a witness’ refusal to answer added
critical weight to the prosecution’s case in a form not subject
to cross-examination, and thus unfairly prejudiced the
defendant.’” (quoting Namet, 373 U.S. at 187)). Douglas,
41
We note also that even if such a right were clearly
established, there is considerable uncertainty in the factual
record as to when—and to what extent— the prosecutor knew
Slaughter would exercise his Fifth Amendment privilege. The
prosecutor’s foreshadowing of Slaughter’s testimony in his
opening statement does not necessarily indicate that the
prosecutor knew Slaughter would invoke his right to not
testify, as much as it indicates the prosecutor’s awareness that
Slaughter might attempt to distance himself from the
statement. Moreover, other than the trial court’s unprompted
reference outside the presence of the jury, the first mention by
Slaughter that he would invoke his Fifth Amendment right
occurred while he was on the stand.
Accordingly, we will affirm the District Court’s
rejection of Johnson’s “separate” due process claim as well.
V. CONCLUSION
For the foregoing reasons, we will AFFIRM the
District Court’s order.
however, considered only a Confrontation Clause claim, and
the cited language does not establish an independent due
process claim. At most, Douglas supports Johnson’s
argument that we should consider Slaughter’s refusal to
testify when analyzing the prejudice that flowed from the
Confrontation Clause violation, an analysis we undertake
above. We have analyzed Johnson’s other cited authorities
and have similarly concluded that they do not clearly
establish such a right as required under § 2254.
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