NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3325
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TYRIUS GREEN,
Appellant
v.
ATTORNEY GENERAL NEW JERSEY;
ADMINISTRATOR NEW JERSEY STATE PRISON
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-15-cv-01886)
District Judge: Honorable Peter G. Sheridan
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 15, 2020
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Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.
(Filed: January 27, 2021)
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OPINION *
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SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Tyrius Green was convicted of murder and gun possession following a jury trial.
Green claims he is entitled to habeas relief because (1) his Fifth Amendment and
Fourteenth Amendment due process rights were violated by the trial court’s factually
erroneous jury instructions regarding the witnesses’ purported in-court identifications,
and (2) his Sixth Amendment right to effective assistance of counsel was violated by his
trial counsel’s failure to object to those instructions. The District Court denied relief
because Green failed to show that the errors prejudiced him. We agree and will affirm.
I
In 2003, Edgerton Munroe was shot and killed in Trenton, New Jersey. Police
obtained signed statements about the incident from five witnesses. Each witness placed
Green at the scene of the crime and two identified him as the shooter. For instance, one
witness stated that she recognized Green as the shooter based on his distinctive walk;
another said he saw Green running from the scene just after the shots were fired; a third
noted that she recognized Green as the shooter even though he wore a black mask across
the bottom of his face because she had known Green “[s]ince he was a little boy” and would
“know [him] anywhere,” J.A. 357; another witness said that she at first believed the shooter
was Green, but she called out to him and he did not answer; and a final witness said he did
not witness the shooting, but he saw Green call Munroe over to him just before the shooting
occurred.
At trial, the testimony of two witnesses differed from their written statements. The
witness who previously identified Green as the shooter based on his distinctive walk stated
she could not remember anything about the shooting because the incident happened years
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earlier and she was using crack cocaine at the time. The witness who previously identified
Green as the shooter and who stated she had known him since he was a boy provided
contradictory testimony, noting instead that she did not know Green particularly well and
was “cracked out” when she made the statement. J.A. 171-72, 178-79. Overall, the five
witnesses each testified that they knew Green and identified him in court, but they did not
specifically identify Green as the shooter.
After the evidence was presented, the trial court instructed the jury. In its
instructions, the court erroneously referred to witnesses who supposedly made in-court
identifications of Green as the shooter. Specifically, the trial court stated:
Now, the State, in trying to meet [its] burden, presented the testimony of
several witnesses who identified the defendant. You will recall that these
witnesses identified the defendant in court as the person who committed the
offenses charged. The State also presented testimony that on a prior occasion
before this trial witnesses made such an identification . . . .
...
If you determine that the out-of-court identification is not reliable, you must
still consider the witness’s in-court identification of the defendant, if you find
it to be reliable.
...
The ultimate issues of the trustworthiness of the in court and out-of-court
identifications are for you to decide.
J.A. 328-29.
The trial court also reminded the jury that it was their job to weigh the evidence
and determine the facts of the case. To that end, the trial court stated that “[r]egardless of
what counsel may have said, regardless of what I may have said in recalling the evidence
in this case, it is your recollection of the evidence that should guide you as sole judges of
the facts[,]” adding shortly after, “you must rely solely on your understanding and
3
recollection of the evidence that was admitted during the trial.” J.A. 322. No party
objected to any part of the jury instructions.
The jury returned guilty verdicts. Green appealed his conviction to the New
Jersey Superior Court, Appellate Division, arguing, in relevant part, that the in-court
identification instruction deprived him of a fair trial. The Appellate Division agreed with
Green that the trial judge made an error but concluded that the error did not have “the
clear capacity to produce an unjust result.” J.A. 377. Green then sought post-conviction
relief, this time arguing that his trial counsel was ineffective for, among other reasons,
not objecting to the erroneous instruction. The New Jersey Superior Court rejected
Green’s petition, holding that trial counsel’s failure to object to the erroneous instruction
did not fall below the standard of competent representation. The Appellate Division
affirmed the denial of post-conviction relief, and the New Jersey Supreme Court denied
the petition for certification.
Green petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, contending,
among other things, that (1) the trial court’s erroneous instruction violated his right to due
process, and (2) his trial counsel was ineffective for failing to object to that instruction.
The District Court rejected those contentions and denied Green’s petition, but it granted a
certificate of appealability on both issues. Green appeals.
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II 1
A
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. §§ 2241-2254, restricts a federal court’s power to grant a writ of habeas corpus
when a state court has already denied the same underlying claim on the merits, unless the
state court’s adjudication of that claim “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 . . . .” 28 U.S.C. § 2254(d)(1); Blystone v.
Horn, 664 F.3d 397, 417 (3d Cir. 2011). “[A] decision by a state court is contrary to
clearly established law if it applies a rule that contradicts the governing law set forth in
the [Supreme] Court’s cases or if it confronts a set of facts that are materially
indistinguishable from a decision of the [Supreme] Court and nevertheless arrives at a
result different from the [Supreme] Court’s precedent.” Blystone, 664 F.3d at 417 (citing
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “A state court decision is objectively
unreasonable if the state court identifies the correct governing principle from the
Supreme Court’s decision but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. (internal quotation marks, citation, and alterations omitted).
On direct appeal, the state court determined that the jury instruction error was
harmless in that it did not have “the clear capacity to produce an unjust result[,]” J.A.
377. This ruling constitutes an adjudication “on the merits” under AEDPA. Johnson v.
1
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253.
5
Lamas, 850 F.3d 119, 133-34 (3d Cir. 2017). If we were reviewing such a ruling on
direct appeal, we would review whether the error is harmless beyond a reasonable doubt
under Chapman v. California, 386 U.S. 18, 24 (1967). On collateral attack, however, a
petitioner must show that the trial court’s determination resulted in actual prejudice,
which means that the error must have “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(citation omitted). In making that determination, we must also be mindful of AEDPA
deference. As result, we may not award § 2254 relief “unless the harmlessness
determination itself was unreasonable.” Johnson, 850 F.3d at 134 (emphasis and citation
omitted). For the ruling to be unreasonable, it must be “so lacking in justification that
the[] . . . error [is] well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Davis v. Ayala, 576 U.S. 257, 169-70 (2015)
(citation omitted). Put succinctly, in this context, “a state-court decision is not
unreasonable if ‘fair-minded jurists could disagree on [its] correctness.’” Id. at 269.
(alteration in original and citation omitted).
Green is correct that the identification jury instruction incorrectly stated that
“several witnesses . . . identified the defendant in court as the person who committed the
offenses charged.” J.A. 328. The record reveals that while all five witnesses identified
Green in court as someone they knew and that none of them identified him in court as the
person who committed the crime. It was erroneous for the trial court to note otherwise.
Assuming that this error was one of constitutional magnitude, the state court’s
determination that it was harmless was not unreasonable. Given all of the evidence, the
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flawed instruction did not have a “substantial and injurious effect or influence in
determining the jury’s verdict,” Brecht, 507 U.S. at 637 (citation omitted), or “so infect[]
the entire trial that the resulting conviction violates due process,” Estelle v. McGuire, 502
U.S. 62, 72 (1991) (citations omitted). More specifically, a fair-minded jurist could find
that this error was harmless because there was considerable evidence proving that Green
killed Munroe. First, the testimony of two witnesses, neither of whom actually witnessed
the shooting, place Green at the scene of the crime with the victim: one witness testified
that Green called Munroe over to him just before the shooting and the other witness
testified that he saw Green running from the scene just after the shots were fired.
Second, in the days after the incident, two other witnesses signed written statements
identifying Green as the shooter, and these statements were introduced at trial as
substantive evidence. While these two witnesses retracted from their written statements
at trial, the jury was entitled to view the written statements as more credible than the in-
court testimony. 2
In sum, there was evidence placing Green at the scene of the crime and identifying
him as the shooter. In light of this evidence and the trial court’s instruction to the jury
that their recollection of the evidence governed, the trial court’s factually erroneous
instruction did not “ha[ve] a substantial influence on the verdict. . . .” Yohn v. Love, 76
F.3d 508, 523 (3d Cir. 1996) (citation omitted). Accordingly, the state court’s analysis of
2
In fact, throughout the trial, Green’s counsel repeatedly focused on whether the
jury should believe the in-court testimony or the out-of-court written statements. The
trial court’s erroneous instruction was unlikely to distract the jurors from this key issue.
7
this issue was not “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Johnson, 850 F.3d at 134 (internal quotation marks and citation omitted). 3 Thus, the
District Court correctly denied relief based upon Green’s Fifth and Fourteenth
Amendment due process claims.
B
Green’s Sixth Amendment ineffective assistance of counsel claim also fails.
Under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984), a
petitioner asserting ineffective assistance of counsel “must demonstrate (1) that counsel’s
performance was deficient, in that it fell below an objective standard of reasonableness,
and (2) that the petitioner suffered prejudice as a result of the deficiency.” Blystone, 664
F.3d at 418 (citing Strickland, 466 U.S. at 687). Under the prejudice prong, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
3
The erroneous jury instruction also did not “relieve[] the government of its
burden of proving every element beyond a reasonable doubt,” Bennett v. Superintendent
Graterford SCI, 886 F.3d 268, 285 (3d Cir. 2018), because the language that Green
challenges did not go to a specific element of the crime or otherwise reduce the state’s
burden of proof, cf. Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 392 (3d Cir.
2020) (concluding there was a due process violation where erroneous jury instructions
created “a strong likelihood the jury convicted [petitioner] as an accomplice to first-
degree murder without finding he possessed the specific intent to kill.”).
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is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694.
Even if Green’s trial counsel’s failure to object to the erroneous jury instruction
fell below an objective standard of reasonableness, Green has not demonstrated that he
was prejudiced as a result. As already explained, the trial court’s erroneous jury
instruction did not harm Green as there no “grave doubt whether the error had a
substantial or injurious effect or influence in determining the verdict” under Brecht, 507
U.S. at 637. For those same reasons, he cannot establish prejudice under Strickland. See
Preston v. Superintendent Graterford SCI, 902 F.3d 365, 382 (3d Cir. 2018) (“The
prejudice prong of the Strickland analysis is consistent with the general ‘harmless error’
standard applicable to all federal habeas petitioners alleging non-structural errors.”
(citation omitted)); Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002) (“[T]he ultimate
issue under either [the Brecht or Strickland] test reduces to determining what effect, if
any, the erroneous instruction had on the jury’s verdict.”). Thus, Green’s ineffective
assistance of counsel claim does not provide a basis for relief.
III
For the foregoing reasons, we will affirm the District Court’s order denying
Green’s petition.
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