Affinito v. Hendricks

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-4-2004

Affinito v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 01-2066

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"Affinito v. Hendricks" (2004). 2004 Decisions. Paper 670.
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 Peter C. Harvey
PRECEDENTIAL Attorney General of New Jersey
Nancy A. Hulett (Argued)
UNITED STATES Deputy Attorney General
COURT OF APPEALS P.O. Box 086
FOR THE THIRD CIRCUIT Office of Attorney General of New
Jersey
Department of Law & Public Safety
No. 01-2066 Division of Criminal Justice
Appellate Bureau
Richard J. Hughes Justice Complex
THOMAS AFFINITO, Trenton, NJ 08625
Attorneys for Appellee
Appellant

v.
OPINION OF THE COURT
ROY HENDRICKS; ATTORNEY
GENERAL OF THE STATE
OF NEW JERSEY
AM BRO, Circuit Judge
Thomas Affinito was convicted in
On Appeal from the 1998 of murder and kidnapping in New
United States District Court Jersey state court. After exhausting his
for the District of New Jersey state court remedies, Affinito petitioned
D.C. Civil Action No. 99-cv-02560 for a writ of habeas corpus in the United
(Honorable Joseph A. Greenaway, Jr.) States District Court for the District of
New Jersey. The District Court denied
Affinito’s petition, but granted a
Argued July 28, 2003 certificate of appealability as to whether
Affinito received ineffective assistance of
Before: SCIRICA, Chief Judge, counsel at his trial. While we conclude
RENDELL and AMBRO, Circuit Judges that Affinito’s counsel failed to provide
effective assistance, that failure was not
sufficiently prejudicial to warrant granting
(Opinion filed: May 4, 2004) a writ of habeas corpus.
I. Factual and Procedural
Jean D. Barrett, Esquire (Argued)
Background
Ruhnke & Barrett
47 Park Street On February 22, 1985, Affinito,
Montclair, NJ 07042 John Cupsie, and Michael Perez were
Attorney for Appellant drinking at a bar called Stash’s Tavern in
Carteret, New Jersey. What follows was Affinito was sitting in the back seat, as he
related primarily by Perez, who was an had on the car ride from Stash’s to City
eyewitness to what occurred throughout Line. While parked outside his residence,
that evening and the early morning hours Affinito pulled out a pipe and asked
of February 23. Cupsie if he wanted to smoke marijuana.
Cupsie responded in the affirmative.
The three men were regular patrons
Affinito, however, did not have any
at Stash’s Tavern and had met one another
marijuana. He pretended to put marijuana
there. It appears, though, that they neither
in the pipe and told Cupsie to pass the
were good friends nor had they known
pipe to Perez. At this point, Affinito
each other very long. On the evening in
grabbed Cupsie from behind and pulled
question, they had been at Stash’s for
him into the back seat of the car. Cupsie
several hours and eventually began talking
began struggling frantically, and the fight
over a game of pool. They decided to
spilled out of the car. During the course
drive to another bar in Carteret called the
of the fight, Affinito pinned Cupsie to the
City Line. Cupsie drove. The three men
ground and repeatedly punched his face
arrived just before last call and ordered
and head until he was bloodied and
drinks. Almost immediately, Affinito and
unconscious. Affinito then said he had to
Cupsie began arguing for some unknown
kill Cupsie and strangled him with a shirt
reason, but the two seemingly reconciled
until he began foaming at the mouth.
their differences within a few minutes.
With Perez’s help, Affinito put Cupsie in
Shortly thereafter, Affinito and the trunk of the car and drove to a nearby
Perez left Cupsie at the bar and walked junkyard.1
outside. Neither Affinito nor Perez
By the time Affinito arrived at the
wanted to go home, and the suggestion
junkyard, however, Cupsie had regained
was made that they could drive around in
consciousness. When Affinito opened the
Cupsie’s car. The two checked the car
trunk, Cupsie punched him in the face in
doors, but they were locked. Affinito then
an attempt to fight his way out of the
stated he could give Cupsie a “sleeper
trunk. He was unsuccessful. Affinito
hold” (a wrestling term), render him
again strangled Cupsie, this time killing
unconscious, and take his keys. Perez
expressed uncertainty in the plan, but
Affinito insisted he could knock Cupsie 1
Perez testified that he told
out and do so without hurting him. Perez Affinito to stop several times, thought
acceded. about running away, and did not wish to
The two men soon rejoined Cupsie assist in putting Cupsie’s body in the
inside, and he informed them of his desire trunk. But it appears Perez was either
to go home. All three returned to Cupsie’s frozen by fear, in partial shock, or both.
car, and he drove to Affinito’s house. After Affinito cursed at him, Perez agreed
to help.

2
him. After throwing Cupsie’s body on the and quality of his acts or to know that they
ground, Affinito drove the car from the were wrong.”
junkyard. He and Perez wiped the car of
In 1987, John P. Russell was
fingerprints and abandoned it. Affinito
substituted as Affinito’s defense counsel.3
also threw the shirts used to strangle
Russell hired a different psychiatrist,
Cupsie and clean the car into a sewer
James Ferretti, M.D.4 Ferretti based his
catch basin. He returned to his home
around 4:30 a.m. on February 23.
After finding Cupsie’s body in the 3
At Affinito’s Post Conviction
junkyard later that day and conducting a Relief Act (“PCRA”) hearing, Bronson
preliminary investigation, the police took testified that he “felt uncomfortable trying
Affinito into custody. At police a death penalty case” and that his turning
headquarters, Affinito gave two the case over to Russell had nothing to do
statements. In the first, he admitted with the fact his fee had not been paid in
leaving the bars with Cupsie, but he full. Bronson highly recommended that
claimed that Cupsie dropped him off at Affinito accept Russell as his new
home around 4:00 a.m. In his second counsel. At the PCRA hearing, Bronson
statement, Affinito admitted that he killed stated his belief that Russell was more
Cupsie. Affinito alleged, however, that he than capable because he had seen Russell
attacked Cupsie only after Cupsie made “spellbind juries with his skills.”
homosexual advances toward him.2 To bolster his argument about
Larry Bronson, the counsel retained Russell’s ineffectiveness, Affinito points
by Affinito’s family, hired Stanley L. out that, prior to the 1988 trial, Russell
Portnow, M.D., to perform a psychiatric had committed several ethical violations.
evaluation of Affinito. Portnow’s Further, Russell was disbarred in 1990 for
evaluation of Affinito’s mental status at a misappropriating funds from his trust
the time of the incident was based on two account in 1982. See Matter of Russell,
interviews with him, numerous sets of 579 A.2d 1228 (N.J. 1990). Russell also
medical and psychiatric records, and had been sanctioned twice prior to
police statements given by Affinito and Affinito’s trial for tampering with a
witnesses. Portnow concluded that witness and failing to perfect an appeal.
Affinito suffered from a major psychiatric See Matter of Russell, 282 A.2d 42 (N.J.
disorder that “substantially impaired his 1971); Matter of Russell, 541 A.2d 665
ability to know or appreciate the nature (N.J. 1988).
4
There is no evidence why Russell
retained Ferretti, but it is alleged Portnow
2
As will become relevant later, refused to testify until the bill for his
Affinito claims to suffer from auditory, evaluation of Affinito was paid.
but not visual, hallucinations. Apparently neither Russell nor Bronson

3
evaluation on a single, fifty-five minute susceptible to the effects of intoxicants.
interview with Affinito. During this Ferretti concluded that such a “vulnerable
interview, Ferretti relied on Affinito to brain” – coupled with intoxication, the
provide the facts of the crime. To described personality disorder and stress
underscore his reliance, Ferretti provided from a fight – would result in a person
a disclaimer in his report that the lacking the capacity to “knowingly and by
“opinions and diagnosis recommendations design perpetrate a murder.”
and commentary contained in this report
On cross-examination, Ferretti
are based on the assumption that the
testified that his opinion might change if
patient has been reasonably accurate and
the facts were materially different from
truthful in his narration. If this was not
those provided by Affinito. The
the case, my opinions and diagnosis
prosecution then questioned Ferretti
conceivably could be altered.” While
regarding Affinito’s altercation and
Ferretti later reviewed Affinito’s medical
strangling of Cupsie in the junkyard.
and psychiatric records, Russell never
(Ferretti was not even aware of these facts
provided Ferretti with Affinito’s post-
because Affinito omitted mention of them
arrest statements to the police.
during their interview, and Russell had
Affinito was ultimately charged failed both to mention them to Ferretti and
with: (1) purposeful or knowing murder, provide him with Affinito’s statements to
N.J. Stat. Ann. § 2C:11-3(a)(1) and (2); the police.) Ferretti responded that he
(2) first-degree kidnapping, N.J. Stat. Ann. “would not apply diminished capacity at
§ 2C:13-1(b)(1) and(2); and (3) felony that point because I would think [Affinito]
murder, N.J. Stat. Ann. § 2C:11-3(a)(3). formulated intent.” Ferretti reiterated this
He stood trial in the New Jersey Superior position on redirect, though with the
Court in September 1988. qualifying assumption that the additional
facts were true.
At trial, Russell used Ferretti’s
testimony to present diminished capacity In its case in rebuttal, the State
and intoxication defenses. Ferretti opined called Dr. Irwin N. Perr as a psychological
during direct examination that Affinito: expert. After reviewing medical records
(1) was intoxicated the night of the a n d interviewing Affinito f o r
murder; (2) had a personality disorder of approximately three hours, Perr concluded
the “epileptoid variety” which caused him that Affinito was not an epileptic per se
to have “difficulty with impulse control”; and did not suffer from any type of brain
and (3) had suffered permanent brain damage or cognitive disorder.
tissue injury brought about by epilepsy
A jury convicted Affinito on all
and past alcohol abuse, making him more
counts. The purposeful or knowing
murder conviction was merged with the
felony murder conviction, for which
paid Portnow for his services.

4
Affinito received a sentence of life In early 1996 the Superior Court
imprisonment with parole ineligibility denied Affinito’s request for relief,
lasting thirty years. (He received a concluding that he failed to sustain his
consecutive sentence of twenty-five years burden of proving ineffective assistance of
for the first degree kidnapping counsel. Significantly, the Court found
conviction.) Russell’s choice of Ferretti was strategic
and that Affinito failed to prove whether
In 1989 Affinito appealed his
Portnow was available at the time of the
convictions and sentences. In his brief to
trial and prepared to testify. The Court
the Appellate Division of the New Jersey
also found that Affinito failed to
Superior Court, Affinito alleged the trial
demonstrate Portnow’s testimony would
court committed several errors, including
have differed from Ferretti’s had Portnow
an improper jury charge regarding
been called as Affinito’s expert.
diminished capacity (erroneously placing
on Affinito the burden of proving lack of Affinito appealed once more to the
intent in establishing diminished capacity). Appellate Division of the Superior Court,
In February 1991 the Appellate Division which affirmed for the same reasons.
affirmed Affinito’s convictions and Later that year, the New Jersey Supreme
sentences. Later that year, the Supreme Court, as it had done in the direct appeal
Court of New Jersey denied Affinito’s of Affinito’s convictions, denied his
petition for certification. request for certification.
Nearly three years later Affinito Affinito then filed a petition
filed in the Superior Court a petition for seeking a writ of habeas corpus in the
post-conviction relief under New Jersey’s United States District Court for the
Post-Conviction Relief Act (“PCRA”), District of New Jersey. He argued that his
N.J. Stat. Ann § 2A:67-16. In the petition Sixth Amendment right to effective
he alleged his trial counsel was ineffective assistance of counsel was violated for the
by not presenting a viable diminished same reasons he asserted in the New
capacity defense. Specifically, Affinito Jersey courts. As noted, the District Court
argued Russell failed to prepare Ferretti denied Affinito’s petition. We granted a
properly. At the PCRA hearing, Affinito certificate of appealability on the issue of
offered the testimony of a criminal lawyer whether Russell provided ineffective
as an expert. That expert opined that assistance of counsel.5
Russell was ineffective because he failed
II. Standard of Review
to provide, inter alia, Ferretti with a copy
of Affinito’s statements to the police, did We exercise plenary review over
not require Ferretti to consult with
Portnow and called Ferretti as an expert
instead of the (presumably) more prepared 5
We have jurisdiction under 28
Portnow. U.S.C. §§ 1291 and 2253(a).

5
the District Court’s decision denying indistinguishable facts.” Williams, 529
Affinito’s habeas petition. Stevens v. U.S. at 413; see also Werts, 228 F.3d 196.
Del. Corr. Ctr., 295 F.3d 361, 368 (3d Cir. Further, “it is not sufficient for the
2002). Overlaying our review standard, petitioner to show merely that his
however, is the Antiterrorism and interpretation of Supreme Court precedent
Effective Death Penalty Act of 1996 is more plausible than the state court’s;
(“AEDPA”). For matters of fact, a federal rather, the petitioner must demonstrate that
court reviewing a habeas petition must Supreme Court precedent requires the
“presume that the . . . findings of both contrary outcome.” Werts, 228 F.3d at 197
state trial and appellate courts are correct, (quoting Matteo, 171 F.3d at 888).
a presumption that can only be overcome
“If we determine that the state court
on the basis of clear and convincing
decision is not ‘contrary to’ the applicable
evidence to the contrary.” Id. (citing 28
Supreme Court precedent, then we are
U.S.C. § 2254(e)(1)); see also Williams v.
required to advance to the second step in
Taylor, 529 U.S. 362, 402-13 (2000).
the analysis — whether the state court
As for legal conclusions, Williams decision was based on an ‘unreasonable
instructs that a federal court may only application of’ Supreme Court precedent.”
grant habeas relief if the state adjudication Id. (citing Matteo, 171 F.3d at 888). Here,
“resulted in a decision that was contrary “a federal habeas court [may] grant the
to, or involved an unreasonable writ if the state court identifies the correct
application of, clearly established Federal governing legal principle from [the
Law, as determined by the Supreme Court Supreme] Court’s decision but
of the United States.” Williams, 529 U.S. unreasonably applies that principle to the
at 402-03 (quoting 28 U.S.C. § facts of the prisoner’s case.” Williams,
2254(d)(2)); see also Werts v. Vaughn, 529 U.S. at 413. In this inquiry, “we are
228 F.3d 178, 196 (3d Cir. 2000). Under not authorized to grant habeas corpus
AEDPA, “we must first identify the relief simply because we disagree with the
applicable Supreme Court precedent and state court’s decision or because we would
determine whether it resolves the have reached a different result if left to our
petitioner’s claim.” Werts, 228 F.3d at 197 own devices.” Werts, 228 F.3d at 197
(citing Matteo v. Superintendent, SCI (citing Matteo, 171 F.3d at 889); see also
Albion, 171 F.3d 877, 888 (3d Cir. 1999)). Williams 529 U.S. at 411. Rather, the state
A decision is “contrary to” clearly court’s application of Supreme Court
established federal law “if the state court precedent must have been “objectively
arrives at a conclusion opposite to that unreasonable.” Werts, 228 F.3d at 197
reached by [the Supreme] Court on a (citations omitted). In other words, a
question of law or if the state court “federal habeas court should not grant the
decides a case differently than [the petition unless the state court decision,
Supreme] Court has on a set of materially evaluated objectively and on the merits,

6
resulted in an outcome that cannot standard is met if counsel’s performance
reasonably be justified under existing “fell below an objective standard of
Supreme Court precedent.” Id. reasonableness.” Id. at 688. Judicial
scrutiny in this regard, however, is highly
III. Affinito’s Ineffective Assistance of
deferential. Id. at 689.
Counsel Claim
It is all too tempting for a
Affinito alleges a violation of his
defendant to second-guess
Sixth Amendment right to effective
counsel’s assistance after
assistance of counsel. Although a number
convic tion or advers e
of issues are raised, Affinito essentially
sentence, and it is all too
argues that Russell provided ineffective
easy for a court, examining
assistance because he decided to use
counsel’s defense after it
Ferretti as the defense expert witness
has proved unsuccessful, to
rather than Portnow and failed to provide
conclude that a particular
Ferretti with all relevant discovery
act or omission of counsel
documents. We conclude that Russell’s
was unreasonable. A fair
performance was deficient. Nonetheless,
assessment of attorney
this does not require a contrary outcome,
performance requires that
even in the face of an erroneous jury
every effort be made to
instruction relating to diminished capacity.
eliminate the distorting
A. Ineffective Assistance of Counsel effects of hindsight, to
Standard reconstruct the
circumstances of counsel’s
The Sixth Amendment right to
challenged conduct, and to
effective assistance of counsel is not
evaluate the conduct from
intended “to improve the quality of legal
counsel’s perspective at the
representation, although that is a goal of
time.
considerable importance to the legal
system. The purpose is simply to ensure Id. (internal citation omitted). Therefore,
that criminal defendants receive a fair a court “must indulge a strong
trial.” Strickland v. Washington, 466 U.S. presumption that counsel’s conduct falls
668, 689 (1984). In Strickland, the within the wide range of reasonable
Supreme Court established a two-prong professional assistance.” Id.
test to determine when a defense counsel’s
The second Strickland prong is
representation was so inadequate as to
reached only when the first exists. If so, a
warrant reversal of a conviction.
defendant must demonstrate a “reasonable
A defendant first must establish his probability that, but for counsel’s
c o u n s e l ’ s r e p r e se n t at io n wa s unprofessional errors, the result of the
constitutionally deficient. Id. at 687. This proceeding would have been different.”

7
Id. at 694. In adopting this standard, the At the outset, we are unpersuaded
Strickland Court determined that a that Ferretti was inherently unqualified as
defendant must show more than “that the an expert witness or that hiring him was
errors had some conceivable effect on the unreasonable. Strickland provides that
outcome of the proceeding.” Id. at 693. counsel has wide latitude in making
While a defendant need not show the error strategic and tactical decisions. 466 U.S.
“more likely than not altered the outcome at 669. Determining which psychiatric
in the case,” id. at 693, it nonetheless must expert to consult is such a decision, be it
be “sufficient to undermine confidence in strategic or tactical.6 See United States v.
the outcome.” Id. at 694. Kirsh, 54 F.3d 1062, 1072 (2d Cir. 1995).
B. Application of the Strickland In order to circumvent the
Standard teachings of Strickland, Affinito attempts
to paint Ferretti as incompetent by
Affinito argues the District Court
isolating a single statement from his direct
erred in concluding that the New Jersey
testimony. Answering a question on
Courts reasonably applied Strickland. As
Affinito’s mental capacity, Ferretti stated
stated previously, each individual
that Affinito “was not acting with mature
argument derives from Russell’s decision
decision-making capacity and good
to use Ferretti as an expert witness and
judgment, [and] therefore had diminished
failure to provide him with all relevant
capacity.” Affinito claims this
discovery documents. First, Affinito
demonstrates Ferretti lacked an
alleges Ferretti was not qualified to testify
understanding of the legal definition of
in support of a diminished capacity
diminished capacity — a mental disease or
defense and that Portnow’s prior
defect that negates the relevant state of
evaluation should not have been ignored.
Affinito also claims it was unreasonable to
have Ferretti testify when he had spent 6
Affinito argues that, because
only fifty-five minutes interviewing Portnow refused to testify until he was
Affinito, reviewed “no documents,” paid, the decision to retain Ferretti was a
including Affinito’s “medical and mental financial, not strategic, one. Regardless
health history,” and supported his whether financial considerations played
testimony with the unknown diagnosis of some part in Russell’s decision, his choice
“vulnerable brain.” Finally, Affinito remained a strategic one. (Affinito uses
contends that Russell’s failure to provide “strategic” throughout his briefing, though
Ferretti with Affinito’s statements to one could argue that the decision to use
police fell below any objective standard of Ferretti, as opposed to Portnow, was a
reasonableness. tactical means of carrying out the strategy
1) Was the Performance of Affinito’s of rebutting the prosecution’s case. In this
Counsel Constitutionally Deficient? context, we use the words
interchangeably.)

8
mind required for an offense (here intent). Affinito’s claim of no review is incorrect.
See N.J. Stat. Ann. § 2C:4-2; State v. Ferretti admitted that he had no written
Galloway, 628 A.2d 735, 743 (N.J. 1993). background information at the time of his
examination. He testified, however, that
But in answering the very next
he reviewed “background material later
question, Ferretti stated that — in light of
on, and that involves virtually every aspect
Affinito’s medical history, his intoxication
of [Affinito’s] life, medical history, work
at the time of the crime and the stress of a
history, legal history and family history.”
fight — Affinito lacked the capacity “to
This background material, Ferretti opined,
knowingly and by design perpetrate a
supported his independent conclusions.
murder.” This demonstrates Ferretti did
understand the diminished capacity Further, selecting Ferretti to testify
defense. In fact, Ferretti’s uncontroverted was a reasonable tactical decision because
testimony establishes him as an expert his and Portnow’s evaluations, while not
qualified in the field of psychiatry who has identical, are similar. Both noted Affinito
testified in “several hundred” court cases. had seizures in the past and a personality
In this context, retaining him was disorder that lowered his impulse control.
reasonable. Both stated Affinito was an alcoholic and
long-time abuser of various drugs. Both
In addition, Ferretti’s examination
based their conclusions on the fact that, on
of Affinito was sufficient based on the
the night of the murder, Affinito was
record before us. One complaint of
suffering from a convulsive disorder, was
Affinito’s is that Ferretti interviewed him
highly intoxicated and was attempting to
for only fifty-five minutes. While Ferretti
thwart a perceived homosexual advance
may have interviewed Affinito for a
from Cupsie. In addition, Ferretti’s use of
shorter period of time than either Portnow
the phrase “vulnerable brain” is not that
or the State’s psychiatric expert, Affinito
dissimilar from Portnow’s report
does not state why, or even if, a fifty-five
describing Affinito as a “congenitally
minute interview is insufficient or contrary
damaged individual” and a “central
to professional standards. And as just
nervous system damaged individual.” One
stated, Ferretti’s uncontroverted testimony
could take issue with Ferretti’s choice of
establishes him as a psychiatric expert.
words, but this does not demonstrate that
While a short interview suggests the
Russell’s reliance on Ferretti’s expert
possibility of a less than thorough
opinion was unreasonable.
evaluation and an unprepared expert
witness, Affinito fails to make a We conclude, however, that
persuasive case that, even at this low Russell’s failure to provide Ferretti with
threshold, his counsel was ineffective. Affinito’s statements to the police fell
below any constitutionally required
As for whether Ferretti reviewed
standard of reasonable representation.
any medical or personal documents,
Affinito’s statement to the police differed

9
in several respects from the version of the mental health expert should be familiar. It
incident told to Ferretti. Specifically, is almost inconceivable that Ferretti could
Affinito failed to mention the second take the witness stand without knowing
strangling at the junkyard. On cross- Affinito engaged in a second struggle with
examination, Ferretti was asked a series of Cupsie at the junkyard and strangled him
hypothetical questions to determine if his again. This was not a trial tactic, it was
diagnosis of diminished capacity would gross incompetence. Even assuming the
change, including the following: decision not to provide Ferretti these
statements was deliberate, it satisfies the
[I]f Affinito further threw
first prong of Strickland. See United
[the victim] in the trunk,
States v. Tucker, 716 F.2d 576, 586 (8th
drove him several blocks
Cir. 1983) (stating that some “defense
away from that location in a
strategies may be so ill-chosen that they
deserted area, opened the
m a y r e n d e r c o u n s e l ’ s o v e r al l
trunk and [the victim] was
representation constitutionally deficient”).7
still alive and tried to get
Any intimation to the contrary by the New
out of the trunk and Affinito
Jersey Courts is an unreasonable
beat him and strangled him
application of Strickland.
and killed him at that spot,
how about those factors? 2) Did Affinito Suffer Prejudice Because
of His Counsel’s Error?
Unbeknownst to Ferretti, this hypothetical
mirrored the actual facts of the case. Having concluded that Russell’s
Ferretti replied that, under those facts, he failure to provide Affinito’s statements to
“would not apply diminished capacity at Ferretti was constitutionally deficient, we
that point because I would think he examine whether this error satisfies the
formulated intent.” second, or prejudice, prong of Strickland.
To constitute prejudice, Russell’s error
When the key issue in a criminal
must undermine our confidence in the
case is whether the defendant suffered
outcome of the case. Strickland, 466 U.S.
from diminished capacity, we can think of
at 694. Admittedly, this error (leading to
nothing more critical than ensuring that
Ferretti’s reversal of opinion on cross-
the defense’s psychiatric expert has as
examination) de facto prevented Affinito
complete and accurate a description of the
facts and circumstances surrounding the
crime as possible. The decision not to
7
avail Ferretti of Affinito’s statements All of this, of course, begs the
defies logic. A defendant’s own question of why Russell did not simply tell
statements to the police have to be some of Ferretti all the pertinent facts surrounding
the most, if at times not the most, crucial Cupsie’s murder. This alone underscores
documents with which an evaluating Russell’s lack of adequate assistance to
Affinito.

10
from presenting any diminished capacity Portnow’s written report contained
defense. many omissions and inconsistencies when
compared to Perez’s eyewitness testimony.
In the New Jersey Courts and
In Portnow’s report, Affinito is quoted as
before us, Affinito points to Portnow’s
stating that Perez took out a pipe, put
evaluation, made with full knowledge of
white powder into it, and smoked it. But
the facts of the case, as strong evidence
Perez testified Affinito had pulled out a
supporting his diminished capacity defense
pipe and pretended to fill it with
and undermining his conviction. In
marijuana. Affinito is also quoted as
response, the Appellate Division of the
saying that Cupsie started “to climb out of
Superior Court concluded on PCRA appeal
his seat to get in the back with me.” Once
that, had Portnow been called to testify,
again, Perez testified that Affinito was
“his conclusion would have been subject
unprovoked and grabbed Cupsie unaware
to a similarly damaging cross-examination
from behind. Portnow’s report also fails to
as was” Ferretti’s. Therefore, Affinito had
address any of the specific facts that
not demonstrated “a reasonable likelihood
provide the context for Cupsie’s death —
that a different result would have been
such as Affinito’s expressed desire to take
reached.” Under AEDPA, it is not for us
the car, his talk of being able to render
to determine whether we agree with, or
Cupsie unconscious with a sleeper hold,
would rule identically to, the New Jersey
lulling Cupsie into a vulnerable position
Courts. Our only inquiry is whether their
with the ruse of smoking marijuna, the
application of Strickland was objectively
statement (when Cupsie was already
unreasonable. It was not, even assuming
bloody and unconscious) that Cupsie had
that Portnow would have testified with full
to be killed, the decision to dispose of the
knowledge of the facts and would not have
body in a junkyard, and the second
abandoned the diminished capacity
strangling upon discovering that Cupsie
defense as Ferretti did.8
was not, in fact, dead.
Unlike our dissenting colleague, we
8
We reject as unreasonable the believe these omissions and
Appellate Division of the Superior Court’s inconsistencies terminally undermine
conclusion on direct appeal that “it must A f f i n ito’ s def ens e. First, the
be assumed that Dr. Portnow’s opinion is
not based upon a complete recitation of
the facts.” Portnow’s written report states have significantly discredited Portnow’s
that Affinito’s and Perez’s statements to testimony), it is unreasonable nonetheless
the police were a source of information. to assume Portnow had no knowledge of
While it is certainly ironic that Portnow’s the information contained in these
report omitted mention of the effect of statements, or that he would have
those statements (and, as noted below, abandoned his diminished capacity
cross-examination on this point would diagnosis as Ferretti did.

11
inconsistencies noted in the preceding the overwhelmingly one-sided nature of
paragraph involve physical actions (who the evidence in this case and the failure of
did what), not Affinito’s alleged auditory Portnow’s report to address this evidence
hallucinations (who said what). (Per adequately, Affinito has failed to meet his
Portnow’s report, Affinitio “denies visual demanding burden to demonstrate that the
hallucinations and paranoid ideation.”) PCRA Court unreasonably applied
Further, Portnow premised his opinion on Strickland.
Cupsie initiating the altercation, writing in
C. Erroneous Jury Instruction
the “Conclusions” section of his report that
“Cupsie made a physical advance towards On direct appeal, the prosecution
Affinito which sparked off a seizure like conceded that Affinito was erroneously
rage in Affinito.” But as just discussed, required to prove diminished capacity by a
Perez testified that Cupsie made no preponderance of the evidence, violating
physical advances in the car and was the his due process right to have the
victim of an unprovoked attack. Because prosecution prove intent beyond a
Affinito admittedly was not suffering from reasonable doubt. See Humanik v. Beyer,
visual hallucinations, the lynchpin of 871 F.2d 432, 443 (3d Cir. 1989).10 The
Portnow’s entire analysis is suspect. In Superior Court found harmless error,
addition, Perez’s testimony is internally largely based on Ferretti’s admission on
consistent, painting the story of a joyriding cross-examination that the actual facts of
plan gone horribly wrong. Portnow’s the case were inconsistent with diminished
report makes little attempt to put the capacity. But this only covers one
events of the evening in context. cons titutional error (the incorrect
Affinito had the opportunity to call
Portnow, or another psychological expert, appropriate records . . . , it would have had
to testify at the PCRA hearing, but failed a significant [e]ffect on the jury.” Yet the
to do so (for whatever reason). In this preceding discussion demonstrates that
context, we will not speculate on the Portnow’s report leaves much to be
outcome of th eoretical testimony, desired. As Affinito had the opportunity
especially when many of Affinito’s to put the opinion of a second expert in
arguments on appeal are based on the play, we decline to offer him a third bite at
supposed thoroughness and quality of the apple. We are not, however,
Portnow’s evaluation and report. 9 Given unsympathetic to Affinito’s position.
Were other psychological evidence
favorable to Affinito in the record, our
9
For example, Affinito argues in conclusion might have been different.
his brief that “had counsel . . . called an
10
expert witness, like Dr. Portnow, who was As noted by the Superior Court,
capable and qualified to support the Affinito did not object to the jury
defense and who had been provided with instruction at trial.

12
instruction) with another (the failure to (1946)).12 Overwhelming evidence that a
provide Ferretti with all the facts of the defendant acted with intent may also
case). Indeed, our dissenting colleague render an erroneous jury instruction
argues that “[h]ad a properly prepared harmless. See id. at 118.
expert testified, Affinito would have
Based on the strong evidence in the
obtained a new trial based on the
record, and with scant evidence putting a
erroneous diminished capacity instructions
contrary outcome in play, we conclude that
that infected his first trial.”
the trial court’s erroneous instruction did
This interrelating (some might say not have a substantial and injurious effect
compounding) of errors, however, is on the jury’s verdict (even absent Ferretti
ultimately harmless.11 “Humanik does not giving up Affinito’s diminished capacity
compel or even permit us to grant [a writ defense). As detailed in the previous
of habeas corpus] without considering section, the written report of Dr. Portnow
whether the error was harmful. A contrary c o n t a in ed ma ny, a n d m a j o r,
holding would violate well-settled inconsistencies and omissions when
Supreme Cou rt precedent that ‘a compared to Perez’s uncontroverted
constitutional error does not automatically eyewitness testimony.
require reversal of a conviction.’”
Further, the testimony of Dr. Perr,
Kontakis v. Beyer, 19 F.3d 110, 115 (3d
the State’s psychological expert, was
Cir. 1994) (quoting Arizona v. Fulminante,
comprehensive.13 Based upon extensive
499 U.S. 279, 306 (1991)). An error is
harmless unless it “had [a] substantial and
injurious effect or influence in determining 12
As we recognized in Kontakis,
the jury’s verdict.” Id. (quoting Kotteakos the Supreme Court has ruled that in a
v. United States, 328 U.S. 750, 776 habeas case, as opposed to a direct appeal,
federal courts should apply the Kotteakos
“substantial and injurious effect” test as
opposed to the Chapman v. California,
386 U.S. 18 (1967), “beyond a reasonable
11
Despite AEDPA, we conduct an doubt” test used by the Superior Court.
independent harmless error analysis See Brecht v. Abrahamson, 507 U.S. 619,
because the Superior Court’s analysis was 637-38 (1993).
based on an improper consideration — i.e.,
13
Ferretti’s cross-examination testimony. While the record does not contain
See Cone v. Bell, No. 99-5279, 2004 U.S. Dr. Perr’s written evaluation, his trial
App. LEXIS 3882 at *33-34, 359 F.3d testimony covers seventy-five pages in the
785 (6th Cir. Mar. 1, 2004) (concluding record. Contrary to our dissenting
the AEDPA standard of review did not colleague’s assertion, we believe this
apply when no state court had considered testimony covers broadly, and at times in
the particular issue to be decided). depth, Affinito’s medical health history.

13
testing and evaluation, Dr. Perr concluded IV. Conclusion
that Affinito was of normal intelligence,
Despite the two constitutional
had issues with impulse control, and had
errors before us, we nonetheless conclude
an anti-social personality. Perr concluded,
that the evidence of diminished capacity
however, that Affinito did not suffer from
was so threadbare, and the evidence of
brain damage of any kind or from any
knowing and purposeful intent to murder
disorder that prevented him from forming
so strong, that the jury’s guilty verdict was
the requisite intent to commit knowing or
not undermined. The errors — slipshod as
purposeful murder. In addition, Perr noted
they were and normally requiring a new
that Affinito was not an epileptic per se,
trial — in the circumstances of this unique
had suffered only one possible seizure in
case were harmless. Accordingly, we
the seven years prior to the murder, and
affirm the District Court’s denial of
was not more susceptible to the influence
Affinito’s petition for a writ of habeas
of drugs and/or alcohol as a result of his
corpus.
past seizures. Finally, this conclusion was
not in any way based upon the second
strangling.14
RENDELL, Circuit Judge - dissenting.
In this context, the evidence of
As the majority notes, I disagree
Affinito’s diminished capacity is so
with its analysis of prejudice. In my view,
underwhelming and remote that, even with
but for the ineffectiveness of counsel,
Ferretti’s concession aside and a correct
there is a reasonable probability that the
jury instruction in place, we perceive no
outcome of Affinito’s trial would have
reasonable likelihood of it prevailing.
been different – namely, that Affinito
Thus we disagree with the dissent’s
would have been convicted of
conclusions that Affinito had a “seemingly
manslaughter, rather than murder.15 At the
ironclad” winning argument on direct
appeal and that there is a reasonable
probability Affinito would have been
15
convicted of a lesser included offense at a I note that diminished capacity
new trial. would only be a defense to those crimes
where his mental disease or defect
effectively negated the required mental
state. N.J. Stat. Ann. § 2C:4-2 (2003).
Here, it would appear to be a defense to
14
The following exchange occurred crimes requiring intent or knowledge, such
on redirect examination: “Q. So, for your as murder and kidnapping, see id. §§
purposes you didn’t care if John Cupsie 2C:11-3, :13-1, but it would not shield
died at Liberty Street or at the junkyard? Affinito from a conviction for some form
A. That’s correct, that’s irrelevant to my of manslaughter where the requisite mens
evaluation of the person, that is correct.” rea is recklessness, see id. § 2C:11-4.

14
very least, our confidence in the outcome why the woeful preparation of Ferretti,
is undermined by the combined errors that leading to his abandonment of Affinito’s
plagued his trial – an expert who major theory of defense, was so very
abandoned Affinito, sealing his fate, and damaging.
an erroneous jury instruction. As such,
Several aspects of the way in which
these errors were prejudicial, the state
the trial played out as a result of counsel’s
appellate court’s determination in
ineffectiveness compel the conclusion I
connection with the prejudice prong was
reach. First, an expert psychiatrist in
unreasonable, and habeas relief should
possession of all relevant documents had
have been granted.
previously rendered an opinion stating that
When we assess “reasonable A f f i n i t o e x p e r i e n c ed a u d i t o ry
probability,” we are of necessity hallucinations, suffered from a major
hypothesizing, or speculating to a certain psychotic disorder, and was congenitally
extent, about another likely outcome. We damaged. This raises the distinct
must imagine what alternative scenario probability that a similar opinion was
might have played out if the claimed error obtainable (with proper preparation) and
had not occurred. In a situation such as should have been offered. Moreover,
this, the requisite mental state of intent and Portnow’s opinion referred to previous
its relationship to any mental disease or hospitalizations and diagnoses of “major
defect of the defendant is admittedly an affective disorder” and “borderline
issue requiring expert testimony. The psychotic disorder.” This was quite unlike
question of intent was critical here, and I the opinion of Dr. Perr, which the majority
cannot help but believe that the outcome found to be comprehensive, as Perr
would have been different if Affinito’s referenced no such mental health history
mental condition and history had been or previous diagnoses. In addition,
explained by an expert who had been counsel’s cross examination of Perr was
properly prepared, to a jury that had been totally inept, concentrating only on
properly instructed. sustained drug and alcohol use as the
possible root of Affinito’s problems.
The majority’s contention that there
Absent the aid of a defense expert who
was compelling evidence from which
could provide an opinion supporting the
intent could be determined is faulty.
idea that Affinito suffered from
Certainly, there were Affinito’s actions –
diminished capacity, counsel was left with
gruesome, cruel actions, which were
no other basis for attacking Perr’s
described to the jury by Perez. But do
conclusions or challenging his testimony.
these actions alone necessarily speak to
Affinito’s state of mind at the time the The majority questions whether
crime took place? The difficulty here is Portnow would have been effective on
that without an expert to explain cross examination because the version of
otherwise, they do. And that is precisely events outlined in the body of his report,

15
where he describes the story as related to the majority when asked about them at
him by Affinito, differed from the version trial.
relayed by Perez in his testimony. But to
Further, the Superior Court
me, any such variations between the two
completely discounted the effect of
accounts – and especially Affinito’s
counsel’s obtaining another expert, such
recounting of hearing voices, with the
as Portnow, to testify. It incorrectly, and
“sexy” voices getting louder and louder, as
unreasonably, assumed that Portnow based
described in Portnow’s report – would not
his opinion on something other than a
cast doubt on the basis for Portnow’s
complete factual record. Such a
opinion; rather, they would bolster the fact
determination is clearly unfounded, since
that, although he may not have been
Portnow’s report explicitly indicates that
experiencing visual hallucinations,
he considered all of the pertinent
Affinito perceived the events differently
material.16 Having reached that incorrect
from Perez. And, that was precisely the
conclusion, the state court unreasonably
point of Affinito’s diminished capacity
stopped short of considering how an
defense.
explanation of the relevant history and
Moreover, we should not assume, diagnoses by a qualified expert would
based on the fact that Portnow primarily have impacted the trial. Such testimony,
recounts the incident as Affinito described which I would by no means characterize
it, that Portnow did not also take Perez’s as evidence that is underwhelming or
version of the events into account. We do remote, would have provided a basis for
know from his report that Portnow – the jury to find that Affinito’s actions were
unlike Ferretti – did review Perez’s the product of his compromised mental
statement to the police. If he did, then the functioning.
inconsistencies in Affinito’s tale would
The prejudice caused by the
not be problematic as far as Portnow’s
ineffectiveness of Affinito’s counsel was
opinion is concerned. Since he was
compounded by the trial court’s
already aware of the contents of Perez’s
instructions to the jury, which incorrectly
statement, Portnow would presumably
placed the burden of proof regarding
state on cross examination that, while he
mental state on Affinito. The trial court
referenced Affinito’s account in the body
of his report, he considered the facts
relayed by Perez as well when he formed
16
his opinion. Unless Perez’s trial testimony The majority concedes as much,
differed dramatically from the story he yet curiously still defends as reasonable
told police initially, it is not a stretch to the state court’s assumption that Portnow
assume that Portnow would have been would have been susceptible to the same
prepared to explain or reconcile any of the damaging cross examination as Ferretti
perceived inconsistencies referenced by based on his failure to explicitly reference
certain facts in the body of his report.

16
expounded at length – for nearly seven erroneous instructions by the trial court
pages of the trial transcript – on the law of doomed Affinito, when he had presented
diminished capacity, repeatedly stating no expert opinion to fulfill his purported
that it was the defendant’s burden to prove “burden” of proving mental state. Thus,
that his mental disease or defect had Ferretti’s testimony not only robbed
prevented him from forming the intent Affinito of a defense, it also robbed him of
required by the murder and kidnaping a seemingly ironclad argument on direct
statutes. In other words, the trial court appeal based on the improper allocation of
instructed the jury that the defendant had the burden of proof on this very issue!
to disprove the mental state elements of
Had a properly prepared expert
the crimes charged. This instruction was
testified, Affinito would have obtained a
admittedly erroneous in light of our
new trial based on the erroneous
decision in Humanik, because it
diminished capacity instructions that
improperly relieved the prosecution of the
infected his first trial. And, had a proper
burden of proving an element of the crime,
jury instruction been given at his new trial,
as the Superior Court recognized.
requiring the Commonwealth to prove that
Additionally, with Ferretti’s collapse and
Affinito’s crime was not the result of a
no expert testimony supporting a
mental disease or defect, there is a
diminished capacity defense, the defense
reasonable probability that, given
had offered no proof whatsoever with
Portnow’s diagnosis of his mental
regard to mental state.
disorder, the jury would have convicted
Here, again, the Superior Court Affinito of a lesser included offense.
failed to comprehend the significance of Thus, the error here was not clearly
the combined effect of these two errors. harmless, as the majority concludes. Since
On direct appeal, the court determined that the state court’s analysis and
the jury instruction error was harmless. d e t e r m i n a t i o n r e g a r d in g t h e
The court based this conclusion on its ineffectiveness of Affinito’s counsel was
observation that Ferretti’s testimony, an unreasonable application of Strickland,
offered by the defense, had proven that I submit that the writ should issue
Affinito had formed intent, presumably affording Affinito a new trial.
meeting the Commonwealth’s burden.
Then, during the state post-conviction
proceedings, the Superior Court
unreasonably determined that any
ineffectiveness on the part of Affinito’s
trial counsel had not caused Affinito
prejudice, without considering how the
proceedings on direct appeal were
impacted by counsel’s incompetence. The
court failed to realize that the prolonged
17