Aaron Henderson v. Attorney General Pennsylvania

• Court: Court of Appeals for the Third Circuit
• Decided: February 12, 2024
• Docket: 23-1325
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1325 ____________

AARON HENDERSON, Appellant

v.

ATTORNEY GENERAL PENNSYLVANIA; DISTRICT ATTORNEY ALLEGHENY COUNTY; SUPERINTENDENT HOUTZDALE SCI _______________

On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. No. 2-17-cv-00839) District Judge: Honorable Arthur J. Schwab _______________

Submitted Under Third Circuit L.A.R. 34.1(a) January 16, 2024

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Filed: February 12, 2024) _______________

OPINION _______________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.

Aaron Henderson appeals an order of the District Court denying his petition for

habeas relief from a state murder conviction. Henderson argues that his petition should

have been granted because his constitutional right to effective assistance of counsel was

violated when his trial counsel failed to call an expert witness, even though the kind of

testimony Henderson says he was entitled to was prohibited under state law at the time.

For the reasons that follow, we will affirm.

I. BACKGROUND1

In December of 2011, following a four-day jury trial, Henderson was convicted of

murdering Justin Strothers-Owens. More specifically, he was found guilty of first-degree

murder and recklessly endangering another person, and he was sentenced to mandatory

life imprisonment without parole on the murder charge and to a consecutive one to two

years’ term imprisonment on the reckless endangerment charge. “The crucial piece of

evidence linking Henderson to the murder was the eyewitness testimony of Rhonda

Johnson, who positively identified Henderson as the shooter.” (App. at 8.) Henderson

appealed his conviction to the Pennsylvania Superior Court, which affirmed his sentence

in December of 2013. Subsequently, the Superior Court denied Henderson’s application

1 These facts come from the Pennsylvania Superior Court’s opinion denying Henderson postconviction relief, and from the Magistrate Judge’s report and recommendation to the District Court. Commonwealth v. Henderson, No. 15 WDA 2016, 2017 WL 2214744 (Pa. Super. Ct. May 18, 2017); Henderson v. Att’y Gen. of Pa., No. 17-CV-0839, 2022 WL 18542311 (W.D. Pa. Dec. 1, 2022), report and recommendation adopted, No. 17-CV-0839, 2023 WL 1444212 (W.D. Pa. Feb. 1, 2023).

2 for reargument en banc, and Henderson filed a petition for allowance of appeal, which the

Pennsylvania Supreme Court denied in July of 2014.

Henderson then petitioned for relief under Pennsylvania’s Post-Conviction Relief

Act (“PCRA”), alleging that his trial attorney was ineffective for failing to call an expert

witness to testify about the questionable reliability of eyewitness identification. At the

time of his trial, Pennsylvania law “barr[ed] expert testimony on the issue of

identification at trial[.]” (App. at 40.) Henderson’s trial counsel’s “sole reason” for not

retaining an expert witness to testify about eyewitness identification “was that the law at

the time made such testimony inadmissible.” (App. at 184.) However, in April of 2011,

approximately seven months before Henderson’s trial, the Pennsylvania Supreme Court

granted a petition for appeal in a case called Commonwealth v. Walker and said that it

would consider whether a trial court should have discretion to permit expert testimony

relating to eyewitness identification. 17 A.3d 921 (Pa. 2011).

In May of 2014, while Henderson’s petition for allowance of appeal was still

pending and his judgment of sentence was not yet final, the Pennsylvania Supreme Court

issued its decision in Walker, holding that “the admission of expert testimony regarding

eyewitness identification is no longer per se impermissible” in Pennsylvania.

Commonwealth v. Walker, 92 A.3d 766, 792-93 (Pa. 2014). In so doing, it joined more

than 44 other jurisdictions permitting such testimony. Id. at 792. Thus, while at the time

of Henderson’s trial Pennsylvania law prohibited expert testimony regarding eyewitness

identification, the Pennsylvania Supreme Court had also granted argument on the issue.

3 Henderson’s trial counsel was not aware of that grant but, had he been, he would have

“retained an expert and called that expert at trial.” (App. at 184.)

The PCRA court dismissed Henderson’s petition and the Superior Court, in a 2-1

decision, denied Henderson’s claims on the merits. Henderson argued that his trial

counsel should have tried to call an identification expert just to preserve the issue for

appeal, but the Superior Court held that Henderson’s trial counsel was not ineffective for

failing to call an expert witness who would have been barred from testifying under the

law at the time of trial. It reasoned that, “[i]f counsel is not ineffective for failing to

introduce such testimony, it defies logic to credit that we could find counsel ineffective

for failing to preserve the same issue for appeal.” (App. at 42.) The Pennsylvania

Supreme Court subsequently denied allowance of appeal. Commonwealth v. Henderson,

181 A.3d 1071 (Pa. 2018) (unpublished table decision).

Henderson then filed a petition for habeas relief in the District Court under 28

U.S.C. § 2254, asserting the same claim for ineffective assistance of counsel that he had

brought before the PCRA court. The Magistrate Judge assigned to the case

recommended denying the § 2254 petition, concluding that the Pennsylvania Superior

Court’s denial of relief was not contrary to, or an unreasonable application of, clearly

established federal law. After Henderson filed objections, the District Court adopted the

Magistrate Judge’s Report and Recommendation and denied his petition.

Henderson timely appealed. We granted a certificate of appealability on the issue

of whether the District Court erred in denying Henderson’s claim that trial counsel “was

4 ineffective for failing to preserve a claim regarding the admissibility of expert testimony

on eyewitness identification.” (App. at 3.)

II. DISCUSSION2

Like the District Court, our review is limited by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, habeas relief is not available for

any “claim that was adjudicated on the merits” in state court unless that adjudication

either “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court[,]” or

was founded on an “unreasonable determination of the facts[.]”3 28 U.S.C. § 2254(d).

Henderson argues that the Pennsylvania Superior Court’s ruling that his trial counsel was

“not ineffective because[,] under prevailing Pennsylvania law[,] the expert would not

have been permitted to testify[,]” was a “misapplication of Strickland [v. Washington,

466 U.S. 668 (1984),]” (Opening Br. at 31), which established the test for ineffective-

2 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. “Because the District Court ruled on [Henderson’s] habeas petition without conducting an evidentiary hearing, our review of its legal conclusions is plenary.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009). 3 There is no dispute that the Pennsylvania Superior Court addressed Henderson’s ineffective assistance of counsel claim on the merits. Because the Pennsylvania Supreme Court denied allowance of an appeal without any explanatory opinion, Commonwealth v. Henderson, 181 A.3d 1071 (Pa. 2018) (unpublished table decision), we analyze, or “look through” to, the last-reasoned decision, which was the Pennsylvania Superior Court’s opinion. See Wilson v. Sellers, 138 S. Ct. 1188, 1193, 1195 (2018) (concluding “that federal habeas law employs a ‘look through’ presumption[,]” in which the federal court “‘look[s] through’ the silent state higher court opinion to the reasoned opinion of a lower court in order to determine the reasons for the higher court’s decision”).

5 assistance-of-counsel claims. In other words, he focuses on the “unreasonable

application of … federal law” as the basis for claiming a right to habeas relief. 28 U.S.C.

§ 2254(d)(2). A state court decision is an unreasonable application of federal law “if the

state court identifies the correct governing legal principle from th[e Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams v. Taylor, 529 U.S. 362, 413 (2000).

Even if a federal court “concludes in its independent judgment that the state-court

decision applied a Supreme Court case incorrectly[,]” that is not enough to issue a writ of

habeas corpus. Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011) (internal quotation

marks omitted). A petitioner must also “show that the state court applied that case to the

facts of his case in an objectively unreasonable manner.” Id. (internal quotation marks

omitted). “It bears repeating that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102

(2011). “Under this highly deferential standard, we will not surmise whether the state

court reached the best or even the correct result in [a] case; rather, we will determine only

whether the state court’s application of [federal law] was unreasonable.” Collins v. Sec’y

of Pa. Dep’t of Corr., 742 F.3d 528, 544 (3d Cir. 2014) (internal quotation marks

omitted; alterations in original). Accordingly, we must affirm the District Court’s denial

of habeas relief unless the Superior Court’s ruling on Henderson’s ineffective assistance

of counsel claim “was so lacking in justification [under existing Supreme Court

precedent] that there was an error well understood and comprehended in existing law

6 beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Henderson has not met his burden to show such an error occurred.

To succeed on his ineffective assistance of counsel claim, Henderson must

demonstrate that (1) his counsel’s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s error, the

result would have been different. Strickland, 466 U.S. at 687-96. Courts “strongly

presume[]” that counsel’s conduct was reasonable, and we evaluate conduct “from

counsel’s perspective at the time.” Id. at 689-90 (emphasis added).

“[T]here is no general duty on the part of defense counsel to anticipate changes in

the law.” Sistrunk v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996) (internal quotation

marks omitted). At the time of Henderson’s trial, Pennsylvania barred, without

exception, expert testimony on eyewitness identifications. Walker, 92 A.3d at 780. On

that basis, the Superior Court concluded that Henderson’s trial attorney was not

ineffective: the “trial court would have been constrained to deny any attempt to submit

such evidence to the jury[,]” and trial counsel cannot be “deem[ed] … ineffective for

failing to assert a meritless claim[.]” (App. at 39.)

Henderson argues that his trial counsel “fail[ed] to act because of his ignorance of

a point of law.” (Reply Br. at 2.) He relies on Hinton v. Alabama, 571 U.S. 263, 274

(2014), which held that “[a]n attorney’s ignorance of a point of law that is fundamental to

his case combined with his failure to perform basic research on that point is a

quintessential example of unreasonable performance under Strickland.” But Henderson’s

reliance on Hinton is misguided. His trial counsel was not ignorant on a point of law.

7 Trial counsel accurately understood the law at the time – expert testimony concerning

eyewitness identification was inadmissible. He affirmed in his affidavit that the law was

the “sole reason” he “did not retain an expert to consult with or testify about the

eyewitness identification testimony presented in th[e] case.” (App. at 184.) Therefore,

Henderson’s trial counsel could not have been deficient for being “ignoran[t]” of a point

of law because he knew the pertinent point of law.

Henderson also argues that while “there is no general duty on the part of defense

counsel to anticipate changes in the law[,]” (Opening Br. at 25-26 (quoting Sistrunk, 96

F.3d at 670-71)), this is the “rare case” in which counsel’s performance can be

unreasonable for not attempting to admit evidence that would have been inadmissible in

order to maintain the issue for appeal. (Opening Br. at 27.) He cites Government of

Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), in which we said, “[o]nly in a

rare case can an attorney’s performance be considered unreasonable under prevailing

professional standards when she does not make an objection which could not be sustained

on the basis of the existing law[,] as there is no general duty on the part of defense

counsel to anticipate changes in the law.” In Forte, trial counsel was deficient for failing

to raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), while that case was

pending before the Supreme Court. But we also clearly explained that our holding was

“very narrow” due to the “unique circumstances” of the case and that it “should not be

broadly read.” Forte, 865 F.2d at 62, 63. In fact, we did not reach the issue of whether a

higher court’s pending decision alone was sufficient to demonstrate deficient

performance. Instead, we concluded that counsel in Forte was deficient in part because

8 she failed to honor her client’s specific and reasonable request to preserve his rights

under the pending case:

[W]e are not holding that the trial attorney could be held to be ineffective if she had not on her own, even if she had known that Batson was pending, failed to object to the prosecutor’s challenges[,] as we do not reach that issue. It is the fact that she failed to honor [her client’s] quite reasonable request that she make an objection to preserve his rights under a case then pending in the Supreme Court that has led us to conclude that, assuming the allegations in his motion to be true, she was ineffective.

Id. at 63. Therefore, Forte is not the support Henderson thinks it is.

Ultimately, we need not determine whether Henderson’s is a “rare case” when

counsel may be deemed deficient for failing to preserve an issue that was unavailing at

the time but was pending before a higher court. Neither Forte nor the out-of-circuit cases

Henderson cites are “clearly established” law as determined by the Supreme Court. 28

U.S.C. § 2254(d)(1). Thus, even if we were to hold (and we do not) that Henderson’s

trial attorney had a duty to preserve the eye-witness-identification issue for appeal, we

cannot say that the Pennsylvania Superior Court’s decision on the facts of this case was

an unreasonable application of Strickland.

As discussed, there is no general duty for counsel to anticipate changes in the law.

Sistrunk, 96 F.3d at 670. Trial counsel accurately understood the relevant law at the time

of Henderson’s trial and tried the case in accordance with that law. Therefore, the

Superior Court’s holding that trial counsel was not deficient for failing to introduce

inadmissible testimony was not unreasonable.

Because we hold that the Superior Court’s holding that trial counsel was not

deficient under the first prong of Strickland was not unreasonable, we need not reach the

9 prejudice prong, “as both deficiency and prejudice must be proven to support a valid

claim for relief for ineffective assistance of counsel.” United States v. Travillion, 759

F.3d 281, 294 (3d Cir. 2014).

III. CONCLUSION

For the foregoing reasons, we will affirm.