Nolen v. Meyers

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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