Duncan v. Morton

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

6-29-2001

Duncan v. Morton
Precedential or Non-Precedential:

Docket 99-5551

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Filed June 29, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5551

EDWARD LAMONTE DUNCAN

v.

WILLIS MORTON, ADMINISTRATOR;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,
*JOHN J. FARMER, JR.

Edward L. Duncan,
Appellant

*Amended pursuant to F.R.A.P. 43(c)(2)

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 98-cv--03715)
District Judge: Hon. Alfred M. Wolin

Argued January 8, 2001

Before: SLOVITER, ROTH, and RENDELL, Cir cuit Judges

(Filed: June 29, 2001)

Arza R. Feldman
Steven A. Feldman (Argued)
Feldman & Feldman
Hauppauge, N.Y. 11788

Attorneys for Appellant
 Robert L. Cerefice (Argued)
Office of County Prosecutor
Newark, N.J. 07102

Donald C. Campolo
Assistant Attorney General
Acting Essex County Prosecutor
Newark, N.J. 07102

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge:

Petitioner Edward Duncan appeals from the order of the
District Court denying his petition for a writ of habeas
corpus. He argues that the court should have granted the
writ because trial counsel had a conflict of inter est and was
otherwise ineffective. He also contends the trial court gave
an erroneous accomplice charge which infected the entire
trial. The issues raised and the procedural posture in which
they reach us can be placed in context following a brief
review of the facts.

I.

Duncan, Anthony Norman, Douglas Sherman, Caldwell
Moody ("Caldwell"), and Clarence Moody ("Clarence") were
at the Moody brothers' apartment in Newark, New Jersey
on February 18, 1989 when Robert Henderson and Norris
Holmes arrived outside the building and honked the
automobile horn. Duncan asked Caldwell to go out and
send Henderson, with whom Norman appar ently had a
drug-related monetary dispute, up to the apartment. When
Henderson arrived at the apartment, accompanied by
Holmes, they sensed a threat and fled, jumping through the
building's glass door to escape. Duncan and Nor man
pursued them, holding guns. Shots were fir ed, Henderson
sustained a hand injury, and Holmes was killed by a single
bullet shot. Duncan and Norman fled.

2
Duncan was arrested on March 12, 1989. After waiving
his Miranda rights, he gave a voluntary statement in which
he admitted that he was present at the Moodys' apartment
on the night of February 18. He placed the r esponsibility of
the shooting on Norman, describing the events as follows:
Norman had identified Henderson as having pr eviously
robbed him, and when Henderson drove up, accompanied
by Holmes, Duncan directed Caldwell to get him and told
Norman not to do anything. However, when Henderson and
Holmes reached the apartment, Norman jumped at them
with a gun and chased them down the stairs. Duncan then
grabbed his gun and followed but the three others were
already outside when he arrived downstairs and heard two
gunshots. Norman told Duncan that he had shot Holmes in
the leg. Seeing Holmes on the ground, Duncan led Norman
inside and they left through the building's r ear exit. Later,
Duncan returned the gun to Cully, who had given him the
gun because Duncan watched over Cully's drug money.

Norman was arrested on March 13, 1989, and he also
made a voluntary statement. He claimed that both he and
Duncan collected money for Cully, a drug dealer , and had
been looking for Henderson on the night of February 18 to
avenge a robbery. When Henderson and Holmes dr ove up
outside the apartment, Duncan sent Caldwell to get them.
Then, Norman stated, both he and Duncan waited for them
with guns, chased them down the stairs, and shot at them.
When they saw Holmes injured on the ground, they fled
through the building's back exit, and Duncan got rid of the
guns by returning them to Cully who had provided them to
Duncan. His version did not identify which shooter actually
killed Holmes.

A. State Court Proceedings

Duncan, Norman, Sherman, and Caldwell were indicted
for the purposeful or knowing murder of Holmes,
aggravated assault on Henderson, and two weapon-
possession offenses. Duncan hired attor ney Richard
Roberts to represent him, agreeing to pay the lawyer from
his $25,000 bail. Duncan told Roberts that Nor man also
needed an attorney, and Roberts recommended Michael
Pedicini. Although Roberts and Pedicini (and two other
lawyers) shared office space at the time, they were not

3
officially partners and each had his own secr etary, phone,
and trust and expense accounts. When Norman r etained
Pedicini, the two attorneys agreed to split Duncan's bail
money evenly.

The trial court severed the defendants' cases for trial.
Norman was tried from February 14 to 16, 1990,
represented by Pedicini, and was convicted of Holmes'
murder, aggravated assault on Henderson, and the two
counts of gun possession. On April 23, 1990, Duncan went
to trial represented by Roberts, who intr oduced himself to
the jury as "Richard M. Roberts, from the firm of Roberts,
Pedicini and Fielo." 1T at 43.

At Duncan's trial, the prosecution called five witnesses,
none of whom testified to witnessing the shooting.
Clarence, the only witness present when Holmes was killed,
recounted a confrontation between Nor man and Henderson
hours before Holmes' death and detailed the events in the
Moody apartment before and after the shooting. Clarence's
testimony portrayed Duncan as having a certain amount of
authority over the group at the apartment. For example, he
stated that Duncan had sent Norman to summon the
Moody brothers back to their apartment after Norman's
confrontation with Henderson, instructed Caldwell to bring
Henderson up to the apartment after Norman identified
Henderson for Duncan, and told Sherman to get out guns
while waiting for Henderson to arrive. Clarence also
testified that Duncan took a gun himself, gave a gun to
Norman, hid behind the apartment door, confronted
Henderson when he arrived, and, with Norman, chased
Henderson and Holmes.

Detective Jack Eutsey, who had interviewed Duncan after
his arrest, described the encounter and r ead Duncan's
statement to the jury. Dr. Phito Pierr e-Louis, the forensic
pathologist who had performed Holmes' autopsy, described
the cause of death (internal bleeding fr om a single gunshot
wound). Officer Robert Purcell, who had r esponded to the
shooting, described the scene and identified two bullets
found there. Finally, Detective Frank Racioppi, the county
investigator, detailed his efforts tofind Henderson, a
subpoenaed witness who failed to appear at the trial. After
the State's case, the trial judge dismissed the assault

4
charge because the State had not met its bur den of proof,
but denied Roberts' motion for acquittal of the mur der
charge.

Although Duncan's statement was admitted into evidence
and read as part of Detective Eutsey's testimony, Duncan
himself did not testify at trial. Nor did Roberts call any
witnesses on behalf of the defense. In his closing, Roberts
acknowledged that Duncan possessed a gun on the night in
question and told the jury it should retur n a guilty verdict
as to gun possession, but kept emphasizing that the State
had not met its burden of proof on the other charges. He
attacked Clarence's credibility, and ur ged the jury to acquit
Duncan of the murder charge. The pr osecutor, in turn,
conceded he did not know whether Duncan or Nor man had
fired the fatal shot, but insisted that Clar ence's testimony
was credible, asserted that Duncan was guilty of purposeful
murder either as a principal or as an accomplice, and
emphasized that Duncan had orchestrated the incident that
culminated in Holmes' death.

In charging the jury, the court gave detailed instructions
on the murder and weapons counts, and on the lesser
included offenses of aggravated and reckless manslaughter.
The court also described the doctrine of transferr ed intent
and gave a lengthy instruction on accomplice liability.
During deliberations, the jury asked the court to"explain
the definition [sic] between murder and aggravated
manslaughter" and to "explain guilty by association." 4T at
2. In response, the court again read the murder, aggravated
manslaughter, and accomplice liability char ges to the jury.
The jury found Duncan guilty of murder and the weapon-
possession offenses. On May 15, 1990, the court sentenced
Duncan to a lengthy prison term1 for the murder, imposed
a concurrent four-year sentence for thefirst gun-
_________________________________________________________________

1. The government states in its brief, and the Appellate Division stated
in
its opinion affirming Duncan's conviction, that Duncan was sentenced to
life in prison with 30 years of parole ineligibility for Holmes' murder.
The
sentencing hearing transcript and the sentencing for m appear, however,
to impose a thirty-year sentence, as Duncan states in his brief. We do
not attempt to resolve the differ ence as it does not bear on the issue
before us.

5
possession offense but vacated the second gun-possession
verdict as having merged with the mur der conviction.

Roberts, by then officially Pedicini's partner , filed an
appeal of Duncan's conviction with the Appellate Division of
the Superior Court of New Jersey ("Appellate Division"),
challenging only the trial court's substitution of a
deliberating juror and its admission of Duncan's allegedly
involuntary statement. On July 12, 1991, in an
unpublished per curiam opinion, the Appellate Division
affirmed Duncan's conviction. Thereafter, Roberts ceased
his representation of Duncan. The Supr eme Court of New
Jersey denied Duncan's petition for certification on
September 24, 1992. In a separate proceeding, Norman's
conviction was also affirmed by the Appellate Division, and
his petition for certification was denied.

B. State Court Collateral Proceedings

On May 11, 1993, Duncan filed a pro se post-conviction
relief ("PCR") petition. Attorney Connie Bentley McGhee
filed a supplemental letter brief in support of the petition
on January 6, 1995, and represented Duncan at his PCR
hearing on January 25, 1995. The primary bases of
Duncan's petition were ineffective assistance of counsel and
his attorney's conflict of interest. Duncan, Roberts, and
Alvin Norman ("Alvin"), Norman's brother, all testified at the
hearing.

Roberts stated that he was a sole practitioner when
Duncan hired him and during Duncan's trial. However, he
acknowledged that he had entered into a partnership with
Pedicini by the time he began preparing Duncan's appeal.
As to fees, he testified that his division of Duncan's bail
with Pedicini was not contingent on either attor ney's
performance. Roberts also claimed he had made a full
disclosure to Duncan regarding his impending partnership
and that Duncan had not objected to it, although Roberts
conceded that he had not obtained a written or on-the-
record waiver of conflict from Duncan.

As to his trial strategy, Roberts said that it was to portray
Norman as the killer, stated that Pedicini never asked him
to alter his defense of Duncan, and asserted that he did not
change his tactics to benefit himself, Pedicini, or Norman.

6
Roberts acknowledged that he had considered calling as a
witness Alvin Norman, who had heard Nor man confess to
shooting Holmes. Roberts explained that he decided not to
call Alvin because he believed Alvin's testimony constituted
inadmissible hearsay and because Alvin could put an Uzi in
Duncan's hands at the scene. Even after Duncan's PCR
lawyer pointed out that Roberts had conceded at trial that
Duncan had a gun, Roberts maintained that his judgment
at the time of trial was that Alvin's testimony would be
more hurtful than helpful to Duncan's case.

Alvin then testified, and stated that although he had not
been present when Holmes was shot, both Nor man and
Duncan had told him about the incident shortly ther eafter.
Alvin reportedly learned from Nor man that Duncan had
hidden behind the apartment door with a gun, but that
Norman had shot Holmes. Duncan, on the other hand, told
Alvin that he had been talking to Henderson and Holmes
when Norman burst out from behind the door and chased
the two down the stairs, and then Duncan had decided to
follow them. Alvin asserted that he passed his infor mation
on to Roberts because he wanted to set the r ecord straight
when Norman did not tell the truth. Alvin stated that he
was subpoenaed as a witness and sat in the hall during
Duncan's trial, expecting to testify, but that Roberts
eventually decided not to use him, telling him that he
would not be a credible witness because the jury would
think that Duncan had put him up to testifying.

Duncan then testified at the PCR hearing, and disavowed
any intent to kill either Henderson or Holmes. He r eported
that Roberts had initially stated that Alvin would be "vital
to [his] defense," 6T at 54, but infor med him later that
Alvin's testimony was not necessary. Duncan also asserted
that he had asked Roberts to call Douglas Sher man as a
witness but did not recall why Roberts failed to do so. He
denied any knowledge of Roberts' and Pedicini's fee
agreement but claimed that he had no pr oblem with some
of his bail being used to pay Norman's lawyer and that he
had intended for any of the money left over after his own
defense to be used for this purpose. Duncan insisted he
had no knowledge of the attorneys' partnership until seeing
Roberts' affiliation on his appeal brief.

7
The trial court denied Duncan's PCR petition on January
26, 1995. The court concluded there was no actual conflict
because it credited Roberts' testimony and found that
Pedicini and Roberts had not become partners until after
Duncan's trial. The Appellate Division reversed. In an
unpublished per curiam opinion, it held that Roberts had
been, or had held himself out to be, Pedicini's partner at
the time of Duncan's trial, and also found Roberts' reasons
for failing to call Alvin as a witness were"not supportable."
App. Div. Op. at 7. While the court acknowledged that
Roberts may have declined to use Alvin's testimony
pursuant to some reasonable strategy, it held that it was
constrained by New Jersey Supreme Court pr ecedent to
"resolve all doubts in favor of giving [Duncan] a new trial."
Id. at 8. However, a differ ent panel of the Appellate Division
affirmed the denial of Norman's PCR petition, finding that
Pedicini was not Roberts' partner and had no conflict of
interest at the time of Norman's trial.

The New Jersey Supreme Court granted (and
consolidated its consideration of) the State's petition for
certification regarding the reversal of Duncan's conviction,
Duncan's cross-petition, Norman's petition concerning the
denial of PCR relief in his case, and the New Jersey Public
Defender's motion to enter the case as amicus curiae. On
July 8, 1997, the Court reversed the Appellate Division's
judgments in both Duncan's and Norman's cases. See State
v. Norman, 151 N.J. 5, 697 A.2d 511 (1997).2

The Court noted that its rulings provide for br oader
protection against conflicts of inter est as a matter of New
Jersey constitutional law than is provided under the federal
constitution. Under the New Jersey constitution, a per se
conflict arises if a private attorney, or one associated with
that attorney, is involved in simultaneous dual
representations of co-defendants; pr ejudice will be
presumed unless there has been a valid waiver. Absent
such joint representation, defendant must show "a great
likelihood of prejudice" to establish constitutionally
defective representation. Id. at 25, 697 A.2d at 520.
_________________________________________________________________

2. With respect to Norman, the Court found Duncan's payment of
Pedicini's fees created a conflict of inter est for Norman's attorney, and
ordered a new trial.

8
The New Jersey Supreme Court held that the trial court
finding that Pedicini and Roberts were not partners prior to
or during the respective trials of Norman and Duncan was
supported by substantial credible evidence and was entitled
to deference. The Court noted that Roberts had represented
Norman at his arraignment only because Pedicini was
trying a case in federal court, but stated that Nor man's
arraignment was pro forma, lasted no more than a minute
or two, and involved no discussion of the case other than
an acknowledgment that Norman received a copy of the
indictment and discovery, waiver of reading of the
indictment, and entry of a plea of not guilty. The Court held
that Roberts was merely filling in at the arraignment and
did not engage in the type of representation of Norman that
gives rise to a per se conflict. See id. at 27-28, 697 A.2d at
522.

The Court also held it would not expand its per se
conflict rule to cases where attorneys represent co-
defendants while the attorneys are conducting partnership
negotiations. See id. at 29, 697 A.2d at 522-23. The Court
then found that Roberts' representation of Duncan was not
impaired by either a potential or an actual conflict of
interest that prejudiced Duncan. The Court further held
that because Duncan failed to object to the trial court's jury
instructions at trial or on direct appeal, he could only
challenge them in the context of an ineffective assistance of
counsel claim. It then found that Roberts' failur e to object
to the erroneous accomplice-liability instruction was not
unreasonable and did not prejudice Duncan's trial. It
remanded the case to the Appellate Division for
consideration of Duncan's remaining inef fective assistance
of counsel claims.

On remand, the Appellate Division consider ed and
rejected Duncan's remaining claims. Duncan again
petitioned the New Jersey Supreme Court for certification,
which the Court denied on May 21, 1998. See State v.
Duncan, 154 N.J. 608, 713 A.2d 499 (1998).

C. Federal Habeas Corpus Proceedings

Duncan petitioned for a writ of habeas corpus in the
District of New Jersey on August 10, 1998, which the

9
District Court denied. The court did not certify it for appeal.
After Duncan filed a timely Notice of Appeal, this court
granted a certificate of appealability pursuant to 28 U.S.C.
S 2253(c)(1) with respect to his claims that: (1) his right to
counsel was violated by a conflict of inter est; (2) counsel
was ineffective for failing to call or interview witnesses
favorable to the defense; (3) the accomplice liability and
transferred intent jury instructions wer e erroneous; and (4)
counsel was ineffective for failing to challenge those
instructions.3

II.

The District Court had jurisdiction over this case under
28 U.S.C. S 2254 and this court has appellate jurisdiction
under 28 U.S.C. SS 1291 and 2253. This court applies a
plenary standard of review when a district court dismisses
a habeas petition based on a review of the state court
record and does not hold an evidentiary hearing, as in this
case. See Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).

Under 28 U.S.C. S 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), federal courts must give considerable deference
to the determinations of state courts. Section 2254(d)
precludes federal habeas relief as to:

any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
--

(1) resulted in a decision that 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) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court pr oceeding.
_________________________________________________________________

3. The State requested that this court r econsider the propriety of a
certificate of appealability, and asked that we summarily dismiss
Duncan's appeal. Given the serious nature of Duncan's crime, sentence,
and constitutional claims, we decline to do so.

10
The Supreme Court has interpreted this standard as
follows:

Under the "contrary to" clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the "unreasonable
application" clause, a federal habeas court may grant
the writ if the state court identifies the corr ect
governing legal principle from this Court's decisions
but unreasonably applies that principle to the facts of
the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Court
further explained that whether a state court's application of
federal law is "unreasonable" is judged objectively and that
an application may be incorrect but still not unreasonable.
Id. at 409-10.

In conducting a habeas analysis, we must affor d state
courts' factual findings a presumption of correctness, which
the petitioner can overcome only by clear and convincing
evidence. See 28 U.S.C. S 2254(e)(1). This presumption
applies to the factual determinations of both state trial and
appellate courts. See Dickerson v. Vaughn , 90 F.3d 87, 90
(3d Cir. 1996).

III.

A. Conflict of interest

Duncan argues that Roberts' actual conflict of interest
was evidenced by the facts that the attorney: (1) appeared
at Norman's arraignment, (2) introduced himself at trial as
Pedicini's partner, (3) split Duncan's bail money with
Pedicini as each attorney's fee for repr esenting Duncan and
Norman, (4) failed to call a key witness in Duncan's
defense, and (5) continued to represent Duncan on appeal
after the finalization of his partnership with Pedicini.
Duncan contends that this conflict deprived him of his
Sixth Amendment right to counsel and prejudiced his
defense. He also asserts that the trial court err ed in failing
to conduct a conflict inquiry.

11
1. Actual Conflict

The determination whether an attorney engaged in
multiple representation is a mixed question of law and fact
and therefore not subject to the pr esumption of
correctness. See Cuyler v. Sullivan, 446 U.S. 335, 341-42
(1980). However, we can only grant Duncan's habeas
petition if we find that the New Jersey courts' determination
in this case is contrary to or constitutes an unr easonable
application of, governing Supreme Court precedent. See
Williams, 529 U.S. at 399. Because he raised no conflict
objection at trial, Duncan "must demonstrate that an
actual conflict of interest adversely af fected his lawyer's
performance" to prevail on his Sixth Amendment claim.
Cuyler, 446 U.S. at 348.

Actual conflict is more likely to occur in cases of joint
representation (of co-defendants at the same trial) than in
cases of multiple representation (of co-defendants at
separate trials). See United States v. Mor elli, 169 F.3d 798,
810 (3d Cir.), cert. denied, 528 U.S. 820 (1999); see also
Burger v. Kemp, 483 U.S. 776, 784 (1987) ("[A]s we noted
in Cuyler, the provision of separate murder trials for the
three coindictees `significantly r educed the potential for a
divergence in their interests.' "). Actual conflict is also more
easily established when the attorney has taken a positive
step benefitting another client than when the attorney was
passive and failed to act on behalf of the petitioner. See
Morelli, 169 F.3d at 810 (citing United States v. Gambino,
864 F.2d 1064, 1070 (3d Cir. 1988)).

This case presents at most a case of multiple
representation, and Duncan cites only passive lapses in
representation by Roberts, not positive acts. Therefore, to
establish a violation of his Sixth Amendment right to
counsel, Duncan must:

"[f]irst . . . demonstrate that some plausible alternative
defense strategy or tactic might have been pursued. He
need not show that the defense would necessarily have
been successful if it had been used, but that it
possessed sufficient substance to be a viable
alternative. Second, he must establish that the
alternative defense was inherently in conflict with or

12
 not undertaken due to the attorney's other loyalties or
interests."

Id. (quoting Gambino, 864 F.2d at 1070).

The New Jersey Supreme Court found no multiple
representation in this case, either by Roberts individually or
through his association with Pedicini. Regar ding Norman's
arraignment, the Court noted that Roberts clearly stated he
was temporarily filling in for Pedicini, Nor man's counsel,
who could not attend due to a federal court appearance,
and he entered Norman's not-guilty plea. Given Roberts'
minimal role and the fact that Norman's arraignment did
not last more than a couple minutes or entail any exchange
of confidential information, the Court found Roberts had
not "represented" Norman. See Norman, 151 N.J. at 27-28,
697 A.2d at 521-22.

Duncan argues that arraignments may involve
confidential exchanges of information when defendants and
their lawyers determine pleas and possible defenses and
request bail, but he does not challenge the New Jersey
Supreme Court's factual description of Nor man's
arraignment or provide any evidence that it entailed any
confidential communications. Instead, Duncan ar gues that
the Court's characterization of Roberts' appearance as a
mere formality was an unreasonable application of
Supreme Court precedent because arraignments are a
crucial part of criminal cases, citing Kirby v. Illinois, 406
U.S. 682, 689-90 (1972). The Kirby Court did describe the
time from a defendant's arraignment to the beginning of his
trial as "perhaps the most critical period of the
proceedings," id. at 688 n.6 (quotation omitted), and noted
that "[t]he initiation of judicial criminal proceedings is far
from a mere formalism," id. at 689. However, the context of
these statements was an opinion holding that the Sixth
Amendment right to counsel does not attach until
adversary judicial proceedings are initiated against a
defendant. See id. at 688. Kirby does not preclude, or
render unreasonable, the New Jersey Supr eme Court's
conclusion that Roberts' appearance at the arraignment did
not constitute a "representation" of Norman for purposes of
an analysis under Cuyler.

13
As to the attorneys' fee agreement, the New Jersey
Supreme Court held that Pedicini's compensation from
Duncan's bail money created a conflict for Pedicini, with a
significant likelihood of prejudice to Nor man, but no
corresponding risk of prejudice to Duncan. See Norman,
151 N.J. at 34-36, 697 A.2d at 525-26. The Court further
noted that because Pedicini no longer repr esented Norman
at the time he joined the partnership, Roberts' subsequent
representation of Duncan on direct appeal merely
constituted "successive" representation. Although the Court
acknowledged Roberts' self-introduction as Pedicini's
partner at Duncan's trial, it deferred to the PCR court's
finding that the attorneys' partnership was not official until
May 1, 1990, after the trial, and it held that substantial
credible evidence (both attorneys' testimony and
corroborating documentary evidence) supported this
finding. See id. at 27-28, 697 A.2d at 521-22.

The finding that the attorneys were not technically
partners during Duncan's trial is both well-supported and
subject to a presumption of correctness. The determination
that they were not "partners" for the purposes of multiple
representation is not an unreasonable one. In fact, we have
found lawyers with similarly entwined, but not officially
combined, practices not to be "associated" within the
meaning of Federal Rule of Criminal Procedur e 44(c). See
United States v. Pungitore, 910 F .2d 1084, 1139-40 (3d Cir.
1990) (citing Cuyler, 446 U.S. at 347, for the proposition
that a court may reasonably rely on attor neys' own
description of the nature and extent of their professional
associations).

Finally, the New Jersey Supreme Court held that even if
Roberts' decision not to call Alvin Norman as a witness was
motivated by a conflict of interest,

Alvin's testimony would not have affected the
overwhelming evidence that . . . Duncan . . . was at
least an accomplice to the murder. . . .[It] simply
would have suggested that it was Norman and not
Duncan who actually hit Holmes. Whose shot felled
Holmes, however, was not dispositive of the murder
charge if Duncan, as all of the credible evidence
indicated, shared the murderous intent.

14
Norman, 151 N.J. at 32, 697 A.2d at 524. The Court also
pointed out that if Alvin had testified regar ding Norman's
out-of-court statement, the State could have intr oduced
into evidence Norman's statement to the police, which
further implicated Duncan as an accomplice.

In fact, Duncan has not shown that the use of Alvin's
testimony constituted a viable alternate defense strategy.
He argues that Alvin's testimony would have lent his own
account of the shooting more credibility and that if the jury
had heard evidence that Duncan did not fir e the fatal shot,
"it may have analyzed his other conduct in a less culpable
light, such that he did not share his co-defendant's
murderous intent." Br. for Appellant at 36. However, the
identity of the actual shooter is not particularly r elevant to
Duncan's liability, given the State's reliance on the
accomplice theory of liability.

Nothing in Alvin's proposed second-hand testimony
contradicted Clarence's first-hand account, or the evidence
tending to show Duncan's complicity in the shooting. Nor
would it have provided a basis for distinguishing Duncan's
state-of-mind from Norman's at the time of the shooting.
Even Alvin would have placed Duncan waiting for
Henderson with a gun in the Moody apartment, possibly
hidden behind the door. Moreover , as noted by the New
Jersey Supreme Court, the use of Alvin's testimony would
have rendered admissible Norman's potentially damaging
statement to the police. Norman, 151 N.J. at 33, 697 A.2d
at 524.

Duncan has also failed to provide any evidence that
Roberts' decision not to call Alvin was undertaken due to
the attorney's other loyalties, or even that Roberts had
other relevant loyalties. The facts that Roberts erroneously
believed that Alvin's testimony would have been
inadmissible hearsay and that Roberts had no r eason to be
concerned that Alvin's testimony would have shown
Duncan had a gun do not prove that Roberts' motives were
tainted by conflict. On the contrary, ther e is no reason to
reject the state courts' characterization of his decision as a
strategic one. This is particularly plausible inasmuch as
Alvin's testimony was at least as likely to have hurt
Duncan's case by corroborating his complicity in the

15
shooting as to have helped it by identifying Nor man as the
shooter.

For the above stated reasons, we cannot find that the
New Jersey Supreme Court's determination in this case is
contrary to, or that its careful analysis constitutes an
unreasonable application of, governing United States
Supreme Court precedent.

2. Conflict Inquiry

Duncan argues that the trial court err ed in failing to
conduct a sua sponte hearing into Roberts' apparent
conflict of interest when the attorney introduced himself at
Duncan's trial as Pedicini's partner. Duncan cites Cuyler,
446 U.S. at 347, for the proposition that a trial court must
make such an inquiry if it knows or reasonably suspects
that a conflict of interest exists. The r elevant quotation
from the Cuyler opinion makes clear that no such sua
sponte inquiry was called for in this case:

Holloway requires state trial courts to investigate
timely objections to multiple representation. But
nothing in our precedents suggests that the Sixth
Amendment requires state courts themselves to initiate
inquiries into the propriety of multiple r epresentation
in every case. Defense counsel have an ethical
obligation to avoid conflicting representations and to
advise the court promptly when a conflict of interest
arises during the course of trial. Absent special
circumstances, therefore, trial courts may assume
either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such
risk of conflict as may exist. Indeed, . . . trial courts
necessarily rely in large measure upon the good faith
and good judgment of defense counsel. . . . Unless the
trial court knows or reasonably should know that a
particular conflict exists, the court need not initiate an
inquiry.

446 U.S. at 346-47 (citations and footnotes omitted).

In Cuyler, the Court found nothing to indicate the trial
court had a duty to inquire into potential conflicts of
interest where the co-defendants' trials were severed; no

16
participant in the petitioner's trial made any objection to
the multiple representation; and the attor ney's outline of
his defense strategy both appeared "compatible with the
view that none of the defendants was connected with the
[crime]" and suggested that the petitioner's attorney was
not afraid to call witnesses whom he might need in later
trials (although the attorney ultimately made a strategic
decision to rest on the government's case). Id. at 347-48.

Roberts' and Pedicini's association was much mor e
tenuous than that of the lawyers in Cuyler who worked
together on three co-defendants' cases. Her e, Pedicini never
appeared at Duncan's trial or vice versa , and the only
evidence linking Roberts and Pedicini was Roberts' single
statement of law-firm affiliation. Duncan has not shown
that Roberts' written submissions to the trial court
indicated this affiliation or that any other evidence before
the court would have pointed to it.

Therefore, Duncan's trial judge may not have suspected
any multiple representation in Duncan's case, much less
the type of special circumstances that would trigger a
conflict inquiry into an otherwise presumptively permissible
multiple representation. Moreover , the trial court had every
reason to believe Roberts intended to pursue Duncan's
defense zealously. For example, Roberts had identified Alvin
as a witness and subpoenaed him, even though he decided
not to call him. It follows that there was no basis for the
trial court to initiate an inquiry into the possibility of a
conflict of interest on Roberts' part.

B. Ineffective Assistance of Counsel

Duncan argues Roberts' representation of him was
ineffective because the attorney failed to call Alvin as a
defense witness at trial, declined to interview Douglas
Sherman or call him as a witness, and failed to object to
the trial court's defective jury instructions. In or der to show
ineffective assistance of counsel, the petitioner must
establish both that his counsel's perfor mance was deficient
and that the deficient performance pr ejudiced his trial to
the extent that it undermined confidence in the trial's
outcome. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The standard by which we judge deficient

17
performance is an objective standar d of reasonableness,
viewed to the extent possible from the attor ney's
perspective at the time, without "the distorting effects of
hindsight." Id. at 688-90. "[B]oth the performance and
prejudice components of the ineffectiveness inquiry are
mixed questions of law and fact," id., at 698, so this court
applies a plenary standard of review, see Hess v.
Mazurkiewicz, 135 F.3d 905, 907 (3d Cir . 1998).

1. Failure to Call Alvin Norman

Duncan's principal ineffectiveness claim r elates to
Roberts' failure to call Alvin as a witness, an issue we have
already discussed. The Appellate Division, on r emand from
the New Jersey Supreme Court, rejected this claim based
on that court's finding, in the context of its conflict
analysis, that the failure to call Alvin did not prejudice
Duncan's defense. Roberts interviewed Alvin and
considered using his testimony, but ultimately decided not
to call him as a witness. Given our acceptance of the
finding that the use of Alvin's testimony would have been
more harmful than helpful to Duncan's defense, we cannot
find Roberts' failure to call Alvin was an unreasonable lapse
amounting to constitutionally deficient per formance.

Rather, the failure to use Alvin's testimony amounted to
a tactical decision within the parameters of r easonable
professional judgment. Cf. Strickland, 466 U.S. at 690
("[s]trategic choices made after thor ough investigation of
law and facts relevant to plausible options ar e virtually
unchallengeable."); Sistrunk v. Vaughn , 96 F.3d 666, 670
(3d Cir. 1996) ("[I]n a criminal defense, certain litigation
decisions are considered `fundamental' and are for the
client to make. . . . [A]ll other decisions fall within the
professional responsibility of counsel."). Because we find
that Roberts' failure to call Alvin did not rise to the level of
deficient performance, we cannot find that the Appellate
Division's rejection of Duncan's ineffective assistance of
counsel claim based on this failure was an unr easonable
application of Strickland.

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2. Failure to Interview (or Call as a Witness) Douglas
Sherman

The Appellate Division rejected Duncan's contention that
Roberts' failure to interview or call Sher man as a witness
was an unreasonable lapse and prejudiced his trial. Under
Strickland, "a particular decision not to investigate must be
directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel's judgments." 466 U.S. at 691. However , even
assuming that Roberts' failure to investigate Sherman's
potential testimony rose to the level of deficient performance,4
we cannot find the Appellate Division's application of
Strickland unreasonable because Duncan has not shown
any prejudice stemming from Roberts' lapse.

First, Duncan has not shown that Sherman would have
consented to testify at his trial. Sherman, as the Appellate
Division noted, was to be tried after Duncan for Holmes'
shooting, was represented by counsel, and would have
risked self-incrimination had he testified. Mor eover, Duncan
did not provide any sworn statement fr om Sherman in
support of his PCR petition. His only evidence r egarding the
content of Sherman's potential testimony is an unsworn
letter Sherman wrote to Duncan fr om jail in November
1990, well after the completion of Duncan's trial.

Sherman's letter suggests that Norman had admitted
firing the fatal shot and then implicated Duncan. There
was, however, no evidence offer ed at Duncan's trial that
Norman had implicated Duncan in the Holmes shooting.
Historically, the opposite occurred; in Duncan's statement
to the police, he admitted his involvement in the incident
and implicated Norman.

Duncan asks this court to speculate both as to whether
Sherman would in fact have testified on his behalf and as
_________________________________________________________________

4. It is difficult to assess Roberts' decision not to investigate
Sherman's
potential testimony, because there does not appear to be any evidence
concerning it in the record. Ther e is only Duncan's PCR testimony that
he told Roberts about Sherman and asked Roberts to call Sherman as
a witness, but that he did not know whether or not Roberts talked to
Sherman or why Roberts did not call Sher man as a witness.

19
to what Sherman's testimony would have been. A habeas
petitioner

must establish a reasonable probability--one sufficient
to undermine our confidence in the outcome--that the
jury's verdict would have been differ ent if not for
counsel's errors. See Strickland, 466 U.S. at 695, 104
S. Ct. at 2068. Such a showing may not be based on
mere speculation about what the witnesses [his
attorney] failed to locate might have said.. . . Under
usual circumstances, we would expect that . . .
information [obtainable through an adequate
investigation] would be presented to the habeas court
through the testimony of the potential witnesses.

United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989)
(quotations omitted). In light of Duncan's failur e to present
any sworn testimony by Sherman, he has failed to establish
prejudice as a result of Roberts' alleged failure to interview
Sherman.

3. Failure to Object to Defective Jury Instructions

The New Jersey Supreme Court found that "[t]here is no
question that the jury charge delivered by the trial court
was deficient." Norman, 151 N.J. at 37, 697 A.2d at 526.5
It cited State v. Bielkiewicz, 267 N.J. Super. 520, 632 A.2d
277 (1993), for the proposition that an accomplice-liability
charge "must include an instruction that a defendant can
be found guilty as an accomplice of a lesser included
offense even though the principal is found guilty of the
_________________________________________________________________

5. The Court analyzed only the trial court's accomplice-liability
instructions. It did not discuss Duncan's challenge to the transferred-
intent instruction and the Appellate Division disposed of the issue
summarily on remand, based on the Court's pr ejudice analysis of the
accomplice-liability instruction. The Appellate Division never stated
whether the transferred-intent instruction was in fact erroneous. Before
this court, neither the State nor Duncan's attor ney addresses the
substance of the transferred-intent instruction claims. In his own brief,
Duncan challenges the instruction but asserts only that it "would have
prevented the jury from considering whether Petitioner was guilty of
manslaughter, and not murder." Pro Se Br. for Petitionerat 16. Because
our review of the instruction does not r eveal why it would have had this
effect, we reject Duncan's challenges to the instruction as meritless.

20
more serious offense." Nor man, 151 N.J. at 37, 697 A.2d at
526. It found this requirement was violated by the trial
court's instructions that "[a] person is an accomplice of
another person in the commission of an offense if with the
purpose of promoting or facilitating the commission of the
offense he solicits such other person to commit it or he aids
or agrees or attempts to aid such other person in planning
or committing it" and that the defendant "must have shared
the same intent, the same purpose requir ed to be proved of
the person who actually committed the crime." Id.
Nonetheless, the Court held that Roberts' failur e to object
to the defective charge did not either rise to the level of
deficient performance under the first prong of Strickland,
given the substantial deference mandated by that case, or
create the magnitude of prejudice r equired under the
second prong of Strickland. See Nor man, 151 N.J. at 38-39,
697 A.2d at 527.

Again, we cannot find that the New Jersey Supr eme
Court's determination was an unreasonable application of
United States Supreme Court precedent. In addition to the
broad deference generally accorded to attorneys' decisions
under Strickland, we note that "in making litigation
decisions, there is no general duty on the part of defense
counsel to anticipate changes in the law." Sistrunk, 96 F.3d
at 670 (quotation omitted). Therefore, Roberts' failure to
object does not rise to the level of deficient per formance
under Strickland unless the accomplice-liability instruction
was clearly incorrect when given.

As the State points out, Bielkiewicz, the sole case the
New Jersey Supreme Court cited in finding the trial court's
accomplice-liability instruction defective, was decided after
Duncan's 1990 trial. Although Bielkiewicz r elied on
principles established in a series of pre-1990 New Jersey
Supreme Court cases, see 267 N.J. Super . at 527-30, 632
A.2d at 281-82, application of these principles to
accomplice-liability instructions in cases involving murder
and manslaughter had not yet been clearly established at
the time of Duncan's trial. Accordingly, the New Jersey
court's determination that Roberts' failur e to object to the
defective charge did not rise to the level of Strickland
ineffectiveness is not an unreasonable application of
Supreme Court precedent.

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C. Due Process Challenge to Jury Instructions

Duncan contends that the trial court's defective
accomplice-liability instruction deprived him of due process.6
More specifically, he argues that the instruction "created
the mis[-]impression that, if the jury found the principal
guilty of murder, they also had to convict the accomplice of
murder," Br. for Appellant at 41-42, and effectively
withdrew the lesser manslaughter charges from the jury's
consideration.

As an initial matter, the Supreme Court has stated that
"the fact that [an] instruction was allegedly incorrect under
state law is not a basis for habeas relief." Estelle v. McGuire,
502 U.S. 62, 71-72 (1991); see also id. at 67 ("We have
stated many times that federal habeas corpus r elief does
not lie for errors of state law.") (quotations omitted). Rather,
a habeas court must consider " `whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process,' . . . not merely
whether `the instruction is undesirable, err oneous, or even
universally condemned.' " Henderson v. Kibbe, 431 U.S.
145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141,
146-47 (1973)).

"The burden of demonstrating that an err oneous
instruction was so prejudicial that it will support a
collateral attack on the constitutional validity of a state
court's judgment is even greater than the showing required
to establish plain error on direct appeal." Id. In determining
whether the accomplice-liability charge at Duncan's trial
satisfies this burden, we must remember the Supreme
Court's insistence that "a single instruction to a jury may
not be judged in artificial isolation, but must be viewed in
_________________________________________________________________

6. In its PCR opinion, the New Jersey Supr eme Court found Duncan's
direct challenge to the defective jury instructions was barred because he
had not raised the issue at trial or on direct appeal. The parties now
dispute whether Duncan has exhausted this claim for purposes of his
federal habeas petition. Because this claim is clearly without merit, we
decline to address the parties' exhaustion ar guments. See 28 U.S.C.
S 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.").

22
the context of the overall charge." Cupp, 414 U.S. at 146-
47.

A review of the instructions in this case does not support
Duncan's contention that they "infected" his trial. In
Bielkiewicz, upon which Duncan relies, the court reversed
the defendants' murder conviction because the accomplice-
liability instruction effectively precluded the jury from
considering lesser offenses under an accomplice theory. The
court was concerned that " `[w]here one of the elements of
the offense charged remains in doubt, but the defendant is
plainly guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction.' " 267 N.J. 534, 632 A.2d at
285 (quoting Keeble v. United States, 412 U.S. 205, 212-13
(1973)) (emphasis in original). However, the context of the
instruction in Bielkiewicz was very dif ferent than it was
here. In Bielkiewicz, the co-defendants were tried jointly;
the trial court did not inform the jury that the defendants
could be convicted of the lesser manslaughter of fenses on
an accomplice theory, and did not "even mention
accomplice liability in instructing the jury with r espect to
these lesser included offenses." 267 N.J. Super. at 531, 632
A.2d at 283.

By contrast, the trial court in Duncan's case began its
instructions on the first count of Duncan's indictment with
a very detailed charge describing the elements of purposeful
or knowing murder, then continued by dir ecting the jury
that if it did not find purpose or knowledge, it must
consider the lesser included manslaughter of fenses which it
described in detail. Only after instructing the jury on all
counts of the indictment did the court refer to the State's
complicity theory and give the jury its accomplice-liability
instruction, which it in no way restricted to the murder
charges. Therefore, the jury in this case was clearly told
that it should consider the lesser manslaughter of fenses,
like the murder charge, under both dir ect and accomplice
theories of liability.

We can understand the concern of the court in
Bielkiewicz, where the co-defendants wer e tried jointly, that
there could be some misunderstanding or some compulsion
to treat both defendants alike. Here, adequate instructions
were given and we have no reason to believe that the jury

23
did not understand that the accomplice-liability instruction
could apply to either type offense. Nothing in the
instructions prevented the jury from considering the lesser
offenses under an accomplice theory of liability. At most,
the fault that one might argue would be one of omission,
which the Supreme Court has stated is less serious than a
misstatement of the law. See Henderson, 431 U.S. at 155.
("An omission, or an incomplete instruction, is less likely to
be prejudicial than a misstatement of the law.").

Therefore, we cannot hold that the absence of the specific
instruction later required by Bielkiewicz, when viewed in
the context of this case, so infected the trial with unfairness
as to violate Duncan's due process rights.

IV.

For the foregoing reasons, we will affir m the District
Court's denial of Duncan's petition for a writ of habeas
corpus.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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