NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2048
________________
OSCAR PORTER,
Appellant
v.
ADMINISTRATOR OF THE NEW JERSEY STATE PRISON;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2-17-cv-02796)
District Judge: Honorable Madeline C. Arleo
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Submitted under Third Circuit L.A.R. 34.1(a)
May 28, 2021
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Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and ROBRENO, District
Judge. *
(Filed: July 12, 2021)
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OPINION **
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*
The Honorable Eduardo C. Robreno, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
ROBRENO, District Judge.
Oscar Porter appeals the denial by the United States District Court for the District
of New Jersey of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We will
affirm the district court’s denial.
I. Background
In June 2005, Porter was convicted of, inter alia, robbery, aggravated assault, and
attempted murder. Specifically, Porter and two other men were alleged to have dragged
the victims, David Veal and Rayfield Ashford, into an alley, robbed them, and shot them.
Ashford died. Veal survived and identified Porter as the shooter.
Porter contends that his trial counsel was ineffective for: (1) failing to investigate
and present testimony from his girlfriend, Katrina Adams, that he was at home with her at
the time of the crimes; and (2) failing to investigate and present testimony from Adams
and another woman, Rashana Lundy, that Porter was friends with Ashford, the deceased
victim, and that Ashford would have invoked that friendship had Porter threatened him
with a gun.
In January 2008, Porter filed a petition for post-conviction relief (“PCR”) alleging
in part ineffective assistance of trial counsel for failing to investigate and call the two
witnesses. The PCR court denied the petition without an evidentiary hearing. The New
Jersey Supreme Court ultimately reversed the denial and remanded the case for an
evidentiary hearing on Porter’s claim that he was denied effective assistance because of
counsel’s failure to investigate Adams and her alibi evidence. State v. Porter, 80 A.3d
732, 735, 740-41 (N.J. 2013). In addition, the New Jersey Supreme Court held that,
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although Porter had not made a prima facie showing of entitlement to an evidentiary
hearing regarding Lundy’s testimony on the friendship between Porter and Ashford, on
remand the PCR court could consider whether counsel was ineffective for this reason as
well. Id. at 740.
In June 2014, the PCR court held the evidentiary hearing but limited it to
counsel’s failure to investigate Adams’s alibi evidence and prohibited Porter from calling
Lundy. The PCR court again denied Porter’s petition. After the denial was affirmed, State
v. Porter, No. A-0530-14T4, 2016 WL 4575702, *3 (N.J. Super. Ct. App. Div. Sept. 2,
2016), Porter filed a Section 2254 petition for a writ of habeas corpus in the district court.
After the district court denied Porter’s petition in April 2020, Porter v. Johnson, No. 17-
2796, 2020 WL 2079267, at *1 (D.N.J. Apr. 29, 2020), we granted a certificate of
appealability on Porter’s claims that: (1) he was denied effective assistance of counsel
when trial counsel failed to interview and call Adams and Lundy; and (2) the district
court should have granted an evidentiary hearing to consider Lundy’s proffered
testimony. Both parties agree that the last reasoned state court decision on the merits is
the PCR court’s June 10, 2014 opinion.
II. Discussion
The district court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. When a district court bases its
decision on the state court record without holding an evidentiary hearing, as is the case
here, we apply a plenary standard of review. Branch v. Sweeney, 758 F.3d 226, 232 (3d
Cir. 2014).
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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
petitioner is entitled to habeas relief only if the state court decision “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).
A decision is “contrary to” established Supreme Court precedent “if the state court
applies a rule that contradicts the governing law set forth in [the Supreme Court’s]
cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). An application of clearly
established law is “unreasonable” if the court identifies the correct governing rule but
applies it to the facts of the case in a manner that is not merely erroneous, but
“objectively unreasonable.” Id. at 409-10; Yarborough v. Gentry, 540 U.S. 1, 5 (2003). In
other words, “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
While our review of a district court’s decision is plenary, the AEDPA requires us
to give considerable deference to the determinations of the state courts. Palmer v.
Hendricks, 592 F.3d 386, 391-92 (3d Cir. 2010).
Porter claims that the PCR court applied the Supreme Court precedent of
Strickland v. Washington, 466 U.S. 668 (1984), in an objectively unreasonable manner
when analyzing his claims of ineffective assistance for counsel’s failure to investigate
and call Adams and Lundy. Under Strickland, a petitioner alleging ineffective assistance
of counsel must first show that counsel’s performance was deficient. 466 U.S. at 687.
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“This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Second, a petitioner must show that the deficient performance caused prejudice. Id. “This
requires showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Id. To establish prejudice, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. “Judicial scrutiny of
counsel’s performance must be highly deferential,” and “the court should recognize that
counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at 689, 690.
In light of the deference given to the state court under the AEDPA, as well as the
deference given to trial counsel’s decisions under Strickland, our review is “doubly
deferential.” Yarborough, 540 U.S. at 6.
Porter also claims that the district court abused its discretion by declining to hold
an evidentiary hearing regarding Lundy’s testimony. See Schriro v. Landrigan, 550 U.S.
465, 473 (2007) (providing that whether to hold an evidentiary hearing is within the
discretion of the district court).
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A. The PCR court did not unreasonably apply the performance prong of
Strickland in determining that trial counsel did not provide ineffective assistance for
failing to present the alibi testimony
Porter first argues that the PCR court unreasonably applied the performance prong
of Strickland by concluding that trial counsel’s assistance was not ineffective even
though he failed to investigate Adams’s alibi claim and call Adams as an alibi witness. 1
During the PCR court’s evidentiary hearing, trial counsel explained his decision
not to call Adams at trial, stating that: (1) he typically did not like to use relatives or close
friends as alibi witnesses because they could be biased; (2) Adams was Porter’s
paramour; (3) Adams was young; and (4) after speaking with Porter about what Adams
remembered, he concluded that she did not have a good recollection of events. Trial
counsel testified that “one of the worst things you can do as a defense attorney in a
homicide case . . . is to put on a bad alibi witness.” App. 160. Counsel further testified
that, instead, he believed it would be prudent to focus on cross-examining Veal on his
identification of Porter.
The PCR court concluded that counsel’s decision was tactical and sound trial
strategy because Adams “was a paramour of Defendant and in his experience, this would
1
Porter’s argument focuses on trial counsel’s failure to explore Adams’s
alibi evidence, but he also briefly argues that counsel provided ineffective assistance by
failing to investigate and call Lundy and Adams regarding the alleged friendship between
Porter and Ashford. As discussed in Section II. B., infra, trial counsel did not prejudice
Porter by failing to investigate or utilize the irrelevant and speculative evidence of the
alleged friendship. Therefore, we need not discuss the decision to exclude the testimony
of Lundy and Adams on this issue under the first Strickland prong. Strickland, 466 U.S.
at 697 (providing that a court may address the performance and prejudice prongs in any
order and need not address both prongs “if the defendant makes an insufficient showing
on one”).
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not be favorable for a defendant,” and that Porter had told him “she did not have a good
recollection of what happened.” App. 85. The PCR court also concluded after hearing
Adams’s testimony that she was incredible, and it did not believe she was with Porter on
the night in question. Porter argues that Adams’s evidentiary hearing testimony shows
she had a good recollection of the night in question. However, the PCR court’s
conclusion to the contrary was not unreasonable since Adams’s testimony shows that,
other than that Porter picked her up from work at around 10 p.m. and they slept together,
she did not recall many other details from the time in question.
Based on trial counsel’s significant experience, he believed that Adams would
have been a poor witness and that attacking Veal’s identification of Porter would be more
persuasive to the jury. Such a decision is within the realm of reasonableness and does not
violate the dictates of Strickland. See Strickland, 466 U.S. at 691 (“[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.”); Lewis
v. Mazurkiewicz, 915 F.2d 106, 111 (3d Cir. 1990) (providing that counsel “may properly
rely on information supplied by the defendant in determining the nature and scope of the
needed pretrial investigation”). In concluding that trial counsel’s decision not to call
Adams as an alibi witness was reasonable and not an error “so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” the
PCR court did not apply the first prong of Strickland in an objectively unreasonable
manner. Strickland, 466 U.S. at 687. Similarly, after having reviewed the record, and in
light of the significant deference due, we cannot say that the PCR court’s analysis of the
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first Strickland prong “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. Because Porter fails to meet the first prong
of Strickland, we need not reach whether Adams’s exclusion also prejudiced Porter. See
Strickland, 466 U.S. at 697.
B. The PCR court did not unreasonably apply the prejudice prong of Strickland
in determining that trial counsel did not provide ineffective assistance in failing to
present the friendship evidence and the district court did not abuse its discretion by
declining to hold an evidentiary hearing on that evidence
Porter contends that the lack of friendship testimony from Lundy and Adams
prejudiced him in violation of Strickland and that the district court abused its discretion
by failing to address his request for an evidentiary hearing thereon.
A district court is required to hold an evidentiary hearing only when the petitioner
presents a prima facie showing that “a new hearing would have the potential to advance
the petitioner’s claim.” Siehl v. Grace, 561 F.3d 189, 197 (3d Cir. 2009) (quoting
Campbell v. Vaughn, 209 F.3d 280, 286-87 (3d Cir. 2000)). In other words, the petitioner
must establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of [his trial] would have been different.” Id. (alteration in
original) (quoting Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999)). This is the same
inquiry used in the prejudice prong of Strickland. 466 U.S. at 694. Thus, if Porter was not
prejudiced by the exclusion of the friendship testimony because its inclusion could not
have changed the results of an otherwise fair trial, the district court could not have abused
its discretion by declining to hold an evidentiary hearing on the same evidence.
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Porter claims that trial counsel’s failure to call Lundy and Adams at trial regarding
the alleged friendship was without justification and that, had counsel produced them,
Veal’s identification of Porter would have been undermined and there would have been a
reasonable probability of a different outcome. Thus, Porter claims that he was prejudiced
by the absence of the friendship evidence and argues that he has made a prima facie
showing that a new hearing would have the potential to advance his claim.
Regarding the PCR court’s refusal to permit Lundy to testify at the evidentiary
hearing on the alleged friendship between Porter and Ashford and limiting Adams’s
testimony to the alibi evidence, the PCR court ruled that “an evidentiary hearing would
not be helpful” and that counsel’s decision not to proffer Lundy’s friendship testimony
“was likely sound trial strategy that would not have changed the outcome of the
proceedings.” App. 87.
Even if Lundy and Adams had testified that the friendship existed, any testimony
regarding how Veal might have reacted to Porter if they were in fact friends is pure
speculation which would have been inadmissible. Indeed, the PCR court initially
concluded that the trial court “would not have allowed the testimony because the fact
they were friends is not probative.” App. 112. Moreover, the New Jersey Supreme Court
specifically found that Porter had not established a prima facie showing that a hearing
regarding Lundy and the testimony of friendship was warranted, Porter, 80 A.3d at 740,
and Porter did not present any evidence on remand that would have changed that
conclusion.
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Thus, Porter has failed to establish that the PCR court unreasonably applied the
prejudice prong of Strickland in determining that trial counsel was not ineffective for
failing to investigate and call Lundy and Adams to testify regarding the alleged
friendship, as this evidence would have been speculative, irrelevant, and inadmissible in
nature. See Strickland, 466 U.S. at 694 (providing that under the prejudice prong, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”). Counsel’s
failure to present the irrelevant evidence did not deprive Porter of a fair, reliable trial and,
thus, did not prejudice him under Strickland. Id. at 687.
Given that the friendship evidence could not have changed the outcome of the
case, the district court did not abuse its discretion by not holding an evidentiary hearing
on this evidence since it had no potential to advance Porter’s claims. Siehl, 561 F.3d at
197.
Because the PCR court did not apply the prejudice prong of Strickland in an
objectively unreasonable manner, and the district court did not abuse its discretion by
declining to hold an evidentiary hearing on irrelevant information, habeas relief is also
not warranted on these grounds.
III. Conclusion
For the foregoing reasons, we will affirm the district court’s denial of Porter’s
Section 2254 petition for a writ of habeas corpus.
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