NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-3165
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WILLIAM J. KEMP,
Appellant
v.
SUPERINTENDENT HUNTINGDON SCI;
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-19-cv-01366)
U.S. District Judge: Hon. Matthew W. Brann
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Argued October 4, 2023
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Before: SHWARTZ, MATEY, and FISHER, Circuit Judges.
(Filed: October 18, 2023)
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OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
David R. Fine
Jonathan Vaitl [ARGUED]
K&L Gates
17 N Second Street
18th Floor
Harrisburg, PA 17101
Counsel for Appellant William J. Kemp1
Martin L. Wade [ARGUED]
Lycoming County Office of District Attorney
48 W Third Street
Williamsport, PA 17701
Counsel for Appellees Superintendent Huntingdon SCI and Attorney General
Pennsylvania
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellee Attorney General Pennsylvania
SHWARTZ, Circuit Judge.
William Kemp appeals the order denying his request for habeas relief under 28
U.S.C. § 2254 based on his claim that his trial counsel was ineffective for failing to
object to the prosecutor’s comments about his post-Miranda silence. For the reasons that
follow, we will affirm.
1
The Court commends David Fine, Esq. and John Vaitl, Esq. for their excellent
work as pro bono counsel. Attorneys who act pro bono fulfill the highest service that
members of the bar can offer to the Court and the legal profession.
2
I
A
In February 2012, Kirsten Radcliffe had a disagreement with her boyfriend,
Michael Updegraff, at a bar and decided to walk home. After getting lost, she knocked
on a door, Kemp answered, and Kemp offered to drive her home. When they arrived at
Radcliffe’s house, Radcliffe invited Kemp inside, where Kemp encountered Updegraff
and Updegraff’s friend, Thomas Schmitt. Updegraff became angry upon seeing Kemp
and asked him to leave. A scuffle ensued with Updegraff and Kemp pushing each other
both inside and outside the house. Updegraff testified that Kemp eventually walked
toward his car, and Updegraff turned back to the house. Schmitt, however, walked in
Kemp’s direction. Updegraff heard a car door open, followed by gunshots, and saw that
Kemp had a gun and that Schmitt had been shot. Updegraff, then fought with Kemp to
get control of the gun. Radcliffe exited the house and joined the fight. Several neighbors
called 911. The police responded to the scene and took Kemp to the hospital to treat
injuries he sustained during the fight.
While Kemp was being treated, he told the doctors that he had been taking a girl
home and “everything went sideways.” SA 167. He did not ask why he was in
handcuffs. Williamsport Detective Raymond Kontz then administered a gun residue test,
during which Kemp asked, “I’m not going home tonight am I,” SA 168, indicated that he
was nervous, asked whether he had shot someone, and stated that he had a .45 caliber
3
handgun. At that point, Agent Kontz read Kemp his Miranda rights, and Kemp agreed to
continue speaking with him. Kemp responded coherently to Agent Kontz’s questions,
but when Agent Kontz asked him whether he remembered shooting anyone, Kemp got
upset and repeatedly responded with “you think I shot him” and “you think I did.” SA
169-70.
At trial, Kemp testified that he ended the conversation with Agent Kontz when the
doctors gave him a shot of morphine. SA 256. The prosecution sought to impeach this
testimony with the following cross-examination:
Q. . . . and Agent Kontz then told you that he wouldn’t ask you anymore
questions, and that Agent Kontz would then conclude the interview. Now
isn’t it more accurate to tell the jury then that that’s the reason why the
interview ended?
A. Because he said he would leave?
Q. Because you wanted a lawyer.
A. Did I just state that in your statement? I’m not sure if I understood your
question, it went too far.
Q. How did your gun get out of the vehicle and get shot? It was at this time
that Kemp said, I think I need a lawyer, I’m scared, I need someone who’s
going to have my best interest at heart, I don’t think you guys do, I think this
is a good time to stop talking. Agent Kontz then says, I then concluded the
interview. That’s why the interview ended.
A. If I said that after I had been hit up with the morphine at the ER, then yeah
I must have said that.
SA 261. The judge then instructed the jury that, “[w]ith respect to the request for the
attorney[,] [y]ou can only consider that in deciding whether or not the defendant is
credible. You cannot consider that for any other purpose.” SA 261. However, the judge
instructed the jury that it could consider Kemp’s decision “not to talk . . . for other
4
purposes, which will or may not be argued by the attorneys in closing argument.” SA
261. Concerning this statement, the prosecution argued in its closing statement that
[Kemp] attempts to change the topic and ultimately answers only, quote, you
think that I did; you think that I shot him. And when he’s pressured on it,
did you shoot him, he is always giving the same non-answer, you think that
I did. Until the fourth time it’s asked, how did your gun get out of your
vehicle and get shot? And it is at that point that he refuses to answer any
more questions and ends the interview. That is consciousness of guilt.
SA 326. Defense counsel did not object to this statement or request any curative
instructions.2
B
The jury rejected Kemp’s claim of self-defense and convicted him of third-degree
murder, aggravated assault, recklessly endangering another person, and possessing an
instrument of a crime, and the trial court sentenced him to twenty-to-forty years’
imprisonment. The Superior Court affirmed, Commonwealth v. Kemp, No. 993 MDA
2014, 2015 WL 7078886 (Pa. Super. Ct. June 8, 2015), and the Pennsylvania Supreme
2
Following the summations, the judge provided the following instruction:
The [prosecutor] argued during his final argument that there were a series of
statements and/or conduct made by the Defendant representing
consciousness of guilt. He indicated that he didn’t ask questions at the
hospital, that he gave certain statements to the police regarding not going
home, that he was nervous and anxious. With respect to those types of
examples, if you believe this evidence, you may consider it as tending to
prove the Defendant’s consciousness of guilt.
SA 334.
5
Court denied Kemp’s petition for an appeal, Commonwealth v. Kemp, 131 A.3d 490 (Pa.
2016).
Kemp then filed a pro se petition under Pennsylvania’s Post-Conviction Relief Act
(“PCRA”), which asserted, among other things, that his trial counsel was ineffective for
failing to object to the prosecutor’s “numerous references to [Kemp’s] silence after his
arrest, as well as his request for an attorney,” and failing to request adequate jury
instructions on the right to remain silent. App. 44-45. Kemp was appointed counsel who
filed an amended petition, which did not include the argument relating to the prosecutor’s
reference to Kemp’s post-Miranda silence. The PCRA court denied the amended
petition, Commonwealth v. Kemp, 63 Pa. D. & C.5th 429 (2017), the Superior Court
affirmed, Commonwealth v. Kemp, 185 A.3d 1132 (Pa. Super. Ct. 2018), and the
Pennsylvania Supreme Court denied Kemp’s petition for an appeal, Commonwealth v.
Kemp, 191 A.3d 746 (Pa. 2018).
Kemp then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, which asserted nine claims for relief, including the claim that his trial counsel
was ineffective for failing to object to the prosecution’s comments about his post-
Miranda silence. The District Court concluded that this claim was procedurally defaulted
because Kemp had not raised it before the state court, and the default was not excusable.
Kemp v. Superintendent of Sci-Huntingdon, No. 4:19-cv-01366, 2021 WL 4743678, at
*3 (M.D. Pa. Oct. 12, 2021). The Court then considered and denied Kemp’s non-
6
defaulted claims. Id. at *4-8.
We granted a certificate of appealability as to Kemp’s claim that his “trial counsel
was ineffective in failing to object to or move for a mistrial based on the prosecution’s
comments on [Kemp’s] silence and invocation of rights under Miranda v. Arizona, 384
U.S. 436 (1966), during the interrogation performed by Agent Kontz.” App. 1.
II3
We need not decide whether Kemp’s ineffective assistance of counsel claim is
procedurally defaulted, or whether default should be excused, because Kemp’s claim fails
on the merits. See, e.g., Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (holding it
unnecessary to determine whether there was procedural default because “the claims in
question lack merit”). To demonstrate that his trial counsel was ineffective, Kemp must
show that his counsel’s performance: (1) fell below an objective standard of
reasonableness under prevailing professional standards, and (2) prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Kemp claims that his trial counsel’s performance was objectively unreasonable
because he failed to object to references to his post-Miranda silence that violated Doyle
v. Ohio, 426 U.S. 610 (1976). Under Doyle, “the use . . . of [a defendant’s] silence, at the
3
The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(c)(2). Because the state courts did not adjudicate
Kemp’s ineffective assistance of counsel claim, and the District Court did not hold an
evidentiary hearing, our review is plenary. Baxter v. Superintendent Coal Twp. SCI, 998
F.3d 542, 546 (3d Cir. 2021) (citations omitted).
7
time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of
the Fourteenth Amendment.” Id. at 619; see also id. at 618 (explaining that Miranda
warnings contain an “implicit” assurance that “silence will carry no penalty”); Boyer v.
Patton, 579 F.2d 284, 288 (3d Cir. 1978) (“[A] defendant’s silence . . . cannot be used
substantively as an admission tending to prove the commission of the offense.”).
As the prosecution now concedes, its summation clearly violated Doyle by directly
connecting Kemp’s post-Miranda silence to his consciousness of guilt. Despite this clear
violation, trial counsel did not object, and the trial court failed to provide a curative
instruction immediately after the prosecutor mentioned Kemp’s silence. Moreover, the
court’s earlier instruction informing the jury that it could consider Kemp’s decision “not
to talk” for “other purposes,” SA 261, implied that his silence could be used to infer
consciousness of guilt. See Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998)
(concluding there was a Doyle violation where the prosecutor commented on the
defendant’s silence during questioning and in closing, and the trial court gave no curative
instructions). This instruction also went without objection.
Because the prosecution committed an obvious Doyle violation, trial counsel’s
failure to object to the prosecution’s statements or to the jury instructions fell below an
objective standard of reasonableness. See Boyer, 579 F.2d at 288 (concluding counsel
8
was deficient where he failed to object to Doyle violation).4 Kemp thus satisfies the first
prong of Strickland.
Kemp cannot demonstrate, however, that his counsel’s failure to object to the
Doyle violation caused him prejudice. Under Strickland, Kemp “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The possibility that
the result could conceivably be different is not enough. See Harrington v. Richter, 562
U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just
conceivable.”). Here, the prosecution’s evidence undermined Kemp’s claim of self-
defense. Four neighbors and Updegraff testified that Schmitt was not attacking or
threatening Kemp when he began firing the gun, and that Kemp had an opportunity to
retreat.5
4
Kemp also argues that Agent Kontz’s direct examination, in which he testified
that Kemp gave him evasive responses (such as “you think I did”) to his repeated
question, “did you shoot him,” constituted a Doyle violation. Appellant’s Br. at 5-6, 22.
However, Agent Kontz only testified as to what Kemp actually said, and did not
comment on his silence. Thus, there was no Doyle violation. See Anderson, 447 U.S. at
408 (explaining that “[s]uch questioning makes no unfair use of silence, because a
defendant who voluntarily speaks after receiving Miranda warnings has not been induced
to remain silent”).
5
These facts make our case distinguishable from United States v. Lopez, 818 F.3d
125 (3d Cir. 2016), where the jury was faced with competing accounts from the
defendant and the arresting officers, and there were no neutral witnesses. In that
situation, we concluded that the defendant’s credibility was “integral to his defense,” and
“the Government’s repeated references to his post-Miranda silence diminished his
credibility,” causing him prejudice. Id. at 131. Unlike in Lopez, this instant case does
9
The only evidence Kemp provided to contradict that testimony was his own
account, which lacked credibility for several reasons unrelated to his refusal to answer all
of Agent Kontz’s questions. First, his testimony contained several gaps and did not
explain how he ended up shooting Schmitt more than once. Second, Kemp’s behavior
before he was Mirandized, such as his failure to ask why he was in handcuffs or state that
he had acted in self-defense, and his post-Miranda statements, such as his repeated
response of “you think I did” to Agent Kontz’s question “did you shoot anyone,”
demonstrated consciousness of guilt. Cf. Hassine, 160 F.3d at 958 (holding Doyle
violation was not prejudicial where the defendant’s testimony did not “present[] a strong
counter to the state’s evidence”). Finally, the impermissible reference to Kemp’s silence
was brief and made in conjunction with several other indications of consciousness of
guilt such that it was effectively cumulative. See Brecht v. Abrahamson, 507 U.S. 619,
639 (1993) (holding Doyle violation was harmless where it comprised “less than two
pages of the 900-page trial transcript” and, “in view of the State’s extensive and
permissible references to petitioner’s pre-Miranda silence,” the violation was “in effect,
cumulative”).6
not present any “he said/she said” testimony. Rather, four neighbors and Updegraff
provided testimony that was consistent in material ways and different from Kemp’s
account.
6
Although Brecht and Hassine addressed whether a Doyle violation constituted
harmless error, Strickland’s prejudice test is equivalent to Brecht’s harmless error test.
Preston v. Superintendent Graterford SCI, 902 F.3d 365, 382 (3d Cir. 2018).
10
Thus, based on the evidence against Kemp, the fact that his account was
inconsistent with that of every other witness, and the brief nature of the Doyle error,
Kemp cannot show a “reasonable probability” that, absent trial counsel’s failure to object
to the Doyle violation, the verdict would have been different.
III
For the foregoing reasons, we will affirm.
11