Richard Lewis v. Warden James T Vaughn Correctional Center

• Court: Court of Appeals for the Third Circuit
• Decided: October 2, 2024
• Docket: 22-2480
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-2480 _____________ RICHARD L. LEWIS, Appellant

v.

WARDEN JAMES T VAUGHN CORRECTIONAL CENTER; ATTORNEY GENERAL DELAWARE ______________

On Appeal from the United States District Court for the District of Delaware District Court No. 1-18-cv-02028 District Judge: Honorable Maryellen Noreika ______________

Argued: July 10, 2024

Before: BIBAS, FREEMAN, RENDELL, Circuit Judges.

(Opinion filed: October 2, 2024)

Matthew B. Harvey, Esq. [ARGUED] Morris Nichols Arsht & Tunnell 1201 N Market Street 16th Floor P.O. Box 1347 Wilmington, DE 19899 Counsel for Appellants Brian L. Arban, Esq. [ARGUED] Office of Attorney General of Delaware Delaware Department of Justice 820 N French Street Carvel Office Building Wilmington, DE 19801 Counsel for Appellees _____________________

OPINION ∗ _____________________

RENDELL, Circuit Judge.

Petitioner-Appellant Richard Lewis brings this habeas petition alleging ineffective

assistance of appellate counsel due to counsel’s failure to present constitutional and

statutory challenges to the admission of out-of-state GPS tracking evidence. While the

applicable Strickland standard has two prongs, we can decide this case by examining only

the prejudice prong and employing the deferential standard that governs our habeas

review of state court rulings. Accordingly, we conclude that it was not contrary to or an

unreasonable application of clearly established federal law for the Delaware Supreme

Court to find that Lewis was not prejudiced by the failure of appellate counsel to raise the

out-of-state monitoring argument. The outcome of the direct appeal is not likely to have

changed if counsel had made the challenges to the admission of out-of-state GPS tracking

evidence because there was ample other admissible evidence in both the search warrant

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 and at trial with which a jury could find Lewis guilty. Thus, Lewis cannot meet

Strickland’s ineffective assistance of counsel standard, and we will affirm.

I

A

In 2015, a string of nighttime residential burglaries and attempted burglaries

occurred in wealthy neighborhoods in Wilmington, Delaware. The suspect entered

through unlocked doors and windows and, wearing gloves and a hooded sweatshirt pulled

around his face, loaded high-value items into a pillowcase. The execution of the 2015

burglaries was strikingly similar to those Lewis was convicted of in 1978, 1981, 1993,

and 2007.

New Castle County Police Detective DiNardo was assigned to investigate the

burglaries. The affidavit of probable cause noted that a white Lexus, believed to belong to

Lewis, had been seen driving through a neighborhood near the location of a recent

burglary, and it described contact with a detective from Pennsylvania who had

investigated a Richard Lewis in connection with a residential burglary in Pennsylvania in

2003. The Delaware Superior Court granted the warrant. The warrant instructed that the

GPS be installed in Delaware and was silent on whether it granted monitoring outside of

Delaware.

Through the initial warrant and a series of extensions, New Castle County police

tracked Lewis through Delaware, Pennsylvania, New Jersey, and New York, and

eventually learned that he was selling stolen jewelry at a Manhattan jewelry store called

Metals NY. Police obtained search warrants for Lewis’s residence, vehicles, and storage

3 unit and executed these warrants on October 16, 2015. From those searches, police seized

jewelry, electronics, a lambskin rug, binoculars, and a painting they believed to be stolen.

Soon after, Lewis was arrested for eight burglaries involving multiple victims and

locations in New Castle County, Delaware.

Lewis’s trial counsel moved to suppress the extraterritorial GPS tracking and

evidence flowing therefrom as fruit of the poisonous tree, and the motion was initially

denied as untimely. Lewis’s first trial in June 2015 resulted in a mistrial. Before the

second trial, the trial court held a hearing on Lewis’s suppression motion, which raised

statutory and constitutional challenges to the extraterritorial tracking and evidence

derived from it. The trial court repeatedly avoided discussing or deciding the

constitutional challenge to extraterritorial tracking, and instead relied on the attenuation

doctrine to deny the suppression motion.

At trial, Lewis was convicted on all counts and sentenced as a habitual offender to

a total of twenty-six years of incarceration.

B Direct Appeal. Lewis timely appealed his conviction to the Delaware Supreme

Court and was appointed appellate counsel. Appellate counsel raised two main

arguments: first, that the affidavits in support of the search warrants for GPS monitoring

did not create probable cause; and second, that the Delaware Superior Court lacked

jurisdiction to authorize GPS tracking outside of Delaware. The second argument

incorporated arguments that extraterritorial monitoring violated Lewis’s constitutional

rights under both the Delaware and U.S. Constitutions. The Delaware Supreme Court

4 affirmed Lewis’s convictions and sentence. It held that probable cause existed for the

installation of the GPS. Regarding his second argument, the Delaware Supreme Court

held that Lewis had waived his constitutional arguments.

State Habeas Petition. In December 2018, Lewis filed a pro se motion for post-

conviction relief pursuant to the Delaware Rules (a Rule 61 Proceeding). Counsel was

appointed to assist Lewis. Lewis urged that both his trial and appellate counsel were

constitutionally ineffective for failing to properly litigate the suppression issue as it

related to out-of-state GPS monitoring. Lewis also urged that appellate counsel needed to

“challenge [the Superior Court’s] reliance on the attenuation doctrine and independent

source doctrine to deny the motion to suppress.” App. 646. In support of Lewis’s Rule 61

proceeding, appellate counsel submitted an affidavit conceding without elaboration that

he did not raise the out-of-state GPS monitoring issue or the Court’s reliance on the

attenuation and independent source doctrines.

The Superior Court denied Lewis’s motion on the merits, applying Strickland and

noting that the “Delaware Supreme Court has declined to rule on the admissibility of extra-

territorial GPS signals several times,” and thus it was “not convinced that prior counsel’s

representation falls below a standard of reasonableness [when] counsel fails to litigate an

issue of first impression.” State v. Lewis, No. 1510009348, 2021 WL 1118114, at *3-4 (Del.

Super. Ct. Mar. 23, 2021). It also found an absence of prejudice under Strickland. It first

determined that “[n]either [caselaw] nor the Fourth Amendment support the proposition that

data produced in a different jurisdiction is somehow off-limits to law enforcement when it is

received pursuant to a lawfully issued warrant.” Id. at *5. Thus, it explained that even if

5 counsel had effectively raised the out-of-state GPS data issue, “the issue would not have

been decided in [Lewis’s] favor and he therefore suffered no prejudice.” Id.

The Delaware Supreme Court affirmed the judgment of the Superior Court in

January 2022. It held that neither trial nor appellate counsel performed deficiently under

Strickland, also noting that neither it nor the United States Supreme Court has provided

guidance on the extraterritorial monitoring issue and that appellate counsel did not have a

duty to “anticipate changes in the law.” Lewis v. State, 271 A.3d 188 (Table), 2022 WL

175771, at *4 (Del. Jan. 20, 2022). It agreed with the Delaware Superior Court and found

a lack of prejudice because Lewis could not demonstrate that he would have prevailed on

his suppression motion given the lack of law supporting his argument regarding

extraterritorial GPS monitoring.

Federal Habeas Petition. While his state motion for post-conviction relief was

pending, Lewis filed his initial habeas petition pursuant to 28 U.S.C. § 2254 in the District

of Delaware. After Lewis’s state motion was adjudicated, the District Court reviewed and

denied Lewis’s petition. Lewis v. May, No. 18-cv-2028, 2022 WL 2966432, at *1 (D. Del.

July 27, 2022). On the ineffective assistance of appellate counsel claim, the District Court

concluded that the Delaware Supreme Court’s decision denying post-conviction relief “was

not contrary to clearly established federal law” either in how it applied Strickland or in

finding an absence of deficient performance or prejudice. Id. at *4, *6. The District Court

explained:

Given the absence of applicable Supreme Court or Delaware Supreme Court precedent on the issue, Petitioner cannot demonstrate a reasonable probability that the outcome of his trial and appeal would have been 6 different but for trial and appellate counsel’s failure to argue that the Delaware police cannot track someone outside the state of Delaware pursuant to a validly issued GPS warrant. Id. at *5. On April 6, 2023, we granted Lewis a certificate of appealability as to the

following issue: whether appellate counsel was ineffective for failing to present

constitutional or statutory challenges to the admission of out-of-state GPS evidence.

II 1

Because no evidentiary hearing was held, our review of the District Court’s ruling

is plenary, and we analyze the Delaware Supreme Court’s decision using the same

standard as the District Court. Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009). We review

the District Court’s factual findings for clear error, Lambert v. Blackwell, 134 F.3d 506,

512 (3d Cir. 1997), and we presume that the state court’s determinations of factual issues

are correct, 28 U.S.C. § 2254(e)(1).

In Strickland, the Supreme Court articulated a two-part test for evaluating a claim

for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

First, the petitioner must demonstrate that counsel’s performance fell below “an objective

standard of reasonableness.” Id. at 688. In evaluating whether counsel performed

reasonably, a court “must be highly deferential.” Id. at 689. Therefore, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

1 This is a habeas corpus appeal brought under 28 U.S.C. § 2254. On April 6, 2023, this Court granted Lewis a certificate of appealability under 28 U.S.C. § 2253(c). Accordingly, this Court has appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. 7 reasonable professional assistance.” Id. Second, the petitioner must demonstrate that

counsel’s ineffective performance caused prejudice. Id. at 687. Prejudice occurs where

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694. “The likelihood of a different

result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112

(2011).

When a federal habeas petition relitigates a claim that a state’s highest court has

adjudicated on the merits, the federal court must review the claim under the deferential

standard set forth in 28 U.S.C. § 2254(d). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), habeas relief “shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings” unless the State court’s

decision “was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or was “based on

an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The deferential standard of § 2254(d)

applies even when a state court’s order is unaccompanied by an opinion explaining the

reasons relief has been denied. Richter, 562 U.S. at 98-101.

A state court decision is “contrary to” clearly established federal law “if the state

court arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than [the Supreme Court]

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-

13 (2000). An “unreasonable application” of clearly established federal law occurs when

8 a state court “identifies the correct governing legal principle from [the Supreme] Court’s

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

413. Here, Lewis could only satisfy the “unreasonable application” prong “by showing

that ‘there was no reasonable basis’” for the Delaware Superior Court’s decision. Cullen

v. Pinholster, 563 U.S. 170, 188 (2011) (cleaned up).

III

In Strickland, the Supreme Court explained that a court may choose to address the

prejudice prong of the Strickland test before the deficient performance prong and reject

an ineffective assistance of counsel claim solely on the ground that the defendant was not

prejudiced. Strickland, 466 U.S. at 697. We do so here and conclude that the state court’s

ruling to that effect was not an unreasonable determination.

The second prong of the Strickland test requires the petitioner to “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. Even if we assume Lewis is right that

appellate counsel should have raised the constitutional argument regarding the out-of-

state GPS monitoring and was therefore deficient, he cannot demonstrate he was

prejudiced by counsel’s failure to do so.

“[A] verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support.” Id. at 696. But

here, Lewis’s verdict has overwhelming record support. The warrants for searching his

residence, vehicles, and storage unit would have still been supported by probable cause.

9 The following information in the warrant was not obtained pursuant to the extraterritorial

monitoring and would still be included:

• Several burglaries and attempted burglaries were committed between April and

June 2015 at Wilmington residences within 2 miles of each other.

• The burglaries reflected Lewis’s “cat burglary” modus operandi (MO) (i.e.,

entering homes and placing jewelry and other expensive items in a pillowcase).

• Lewis was convicted of several burglaries in New Castle County in 1993 using

a similar “cat burglary” MO.

• A victim of one of the incidents saw the burglar and described his physical

features, which generally matched Lewis’s.

• Officers obtained video surveillance from a business complex and park that

backs up to one of the burgled properties. The surveillance footage from June

7—the date of one of the reported burglaries—depicted a light-colored sedan

parking around 3 am, and the driver is seen running back to the car with a bag

or pillowcase over his shoulder at 5 am.

• Footage from the same business park dated June 17 depicted what appeared to

be the same vehicle arriving around 4 am and depicted two individuals exiting

the vehicle and heading toward the residential area. Officers had responded to

a nighttime occupied burglary the night of June 16 in the same area.

• Officers had sent a request for information to nearby investigators in Southeast

Pennsylvania and received a tip about Lewis burglarizing affluent homes in

10 Southeast Pennsylvania using the same “cat burglary” MO and was

incarcerated for these offenses between May 2007 and April 2013.

• Delaware police had been investigating unsolved burglaries that had occurred

since Lewis’s release from PA prison in 2013, including one that occurred in

August 2014 where suspects entered through an unlocked door and stole

jewelry, a purse, and a credit card from a Wilmington home.

• Lewis’s address was registered with probation and parole officers, and he had

been observed leaving and entering that address.

• In-state GPS showed that Lewis’s vehicle visited the affluent Highlands

neighborhood of Wilmington in early July and when an officer responded to

the area, he saw Lewis’s vehicle make an abrupt u-turn in the middle of the

block.

• The GPS showed that Lewis returned to the same neighborhood around the

same time (around 3 am) in late July. On this occasion, the responding officer

observed Lewis’s vehicle and positively identified Lewis in a hoodie with what

appeared to be binoculars. One of the identifying features was Lewis’s limp.

Another officer also observed Lewis enter the vehicle, make multiple u-turns,

and turn the vehicle’s headlights off.

• The GPS tracked, and officer observation confirmed, that Lewis drove to the

Sentinel Self Storage center in Stanton, Delaware on multiple occasions.

11 • Surveillance footage and information from security at a Delaware casino

confirmed Lewis went to the casino in August operating a brown Ford

Explorer.

• Officers observed the Ford Explorer enter the Sentinel Self-Storage center in

August and confirmed Lewis was the driver.

• GPS data confirmed that the Ford Explorer visited the storage unit on multiple

occasions.

All the above evidence in the warrants is sufficient on its own to support probable

cause to execute the search of his home, vehicles, and storage unit. The above evidence

also connects Lewis’s MO to that of the suspect and places Lewis in the neighborhoods

where the burglaries occurred, oftentimes with incriminating behavior such as using

binoculars to look into homes or driving erratically within sight of the officers. And

during the execution of these valid search warrants, officers recovered stolen handbags,

watches, and jewelry from Lewis’s residence, stolen jewelry, binoculars, watches, and

electronics in his storage unit, and a stolen rug in his girlfriend’s car. This, along with the

surveillance footage and the two eye-witness identifications at trial, is enough to defeat

Lewis’s argument on Strickland’s prejudice requirement that there is a reasonable

probability the result of the proceeding would have been different but for counsel’s

deficient performance.

Thus, even if evidence of the out-of-state monitoring and the evidence derived

from it had been excluded, there was still enough there to establish probable cause for the

search warrants of Lewis’s residence, vehicles, and storage unit. And at trial, the other 12 evidence of Lewis’s guilt would support a finding of harmless error here. Together, all

this defeats Lewis’s argument that counsel’s failure to object to the out-of-state

monitoring evidence had a substantial likelihood of prejudicing the outcome of his trial.

The Delaware Supreme Court correctly applied Strickland in determining that Lewis was

not prejudiced by appellate counsel’s alleged deficiency.

IV

For the reasons stated above, we will affirm.