Anthony T. Brown v. Michael Wenerowicz, Superintendent, Sci Graterford

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3203
No. 10-3516
___________
ANTHONY T. BROWN
v.
*MICHAEL WENEROWICZ, SUPERINTENDENT,
SCI GRATERFORD; *RAYMOND LAWLER,
SUPERINTENDENT, SCI HUNTINGDON;
DISTRICT ATTORNEY OF THE COUNTY OF
PHILADELPHIA; ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Appellants
*(Amended per Clerk's Order of 12/15/10)
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cv-01098)
District Judge: Honorable Louis H. Pollak
___________
Argued September 20, 2011

-- 1 of 29 --

2
Before: FISHER, HARDIMAN and GREENAWAY, JR.,
Circuit Judges.
(Filed: December 8, 2011)
Salvatore C. Adamo [Argued]
Suite 300
1434 Knox Avenue
Easton, PA 18040
Attorneys for Plaintiff-Appellee
Anne Palmer [Argued]
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Attorneys for Defendant-Appellants
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Anthony Brown was convicted in Pennsylvania state
court of first-degree murder, reckless endangerment, and
possession of an instrument of crime. After exhausting his
state court remedies, Brown filed a federal habeas petition
pursuant to 28 U.S.C. § 2254(d)(1), claiming that the decision
of the Pennsylvania Superior Court was an unreasonable
application of Strickland v. Washington, 466 U.S. 668 (1984).
The United States District Court for the Eastern District of
Pennsylvania granted Brown‘s petition following an

-- 2 of 29 --

3
evidentiary hearing. The Commonwealth appeals, claiming
that under the stringent requirements of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), Brown
was entitled to neither a federal evidentiary hearing nor the
issuance of the writ.
I
A
On September 7, 1998, the Rorie family attended a
Labor Day celebration at the 600 block of Conestoga Street in
Philadelphia, Pennsylvania. As the block party ended
sometime after 8:00 p.m., the matriarch of the family, Frances
Rorie, began to sweep the sidewalk while thirty others
cleaned. Suddenly, Tiffany Thompson ran toward the crowd
yelling ―they‘re coming, they got a gun.‖ A vehicle rounded
the corner of Poplar and Conestoga Streets, and four men
emerged from the car. One man fired a gunshot into the air.
As Frances Rorie tried to find shelter behind a car, a second
shooter pointed an Uzi pistol at the Rorie home and fired
seventeen shots into the crowd. One shot hit Frances in the
head, killing her instantly.
Frances Rorie‘s murder capped a day of heated
confrontation between neighbors. The trouble began in the
morning, when children from Conestoga Street argued with
children from Girard Avenue. The mother of some of the
Girard Avenue children was Kim Brown, sister of Appellee
Anthony Brown. Accompanied by her friend, Sharon Carter,
Kim approached Frances‘s granddaughter, Tamika
Thompson, who referred the women to her mother, Alanda
Rorie, at 647 Conestoga Street. There, Kim and Sharon
argued with Alanda, Frances, and Yvonne Rorie.

-- 3 of 29 --

4
The argument at Alanda Rorie‘s home did not relieve
the tensions between the families. Sometime between 3:00
and 4:00 p.m., Kim Brown‘s son Hakim threw a rock at
Yvonne Rorie‘s son Rafeek. The Rories then grabbed
brooms and marched to the corner of Conestoga and Girard.
The Browns in turn wielded knives while their friend,
Kareema Latimer, threatened to ―get her .357 and spray the
whole corner.‖ A few hours after Latimer issued her threat,
Tamika and Yvonne spotted Appellee Anthony Brown,
Anthony Fingers, Kevin Johnson, and two other men standing
at the corner with Kareema Latimer, who pointed at the Rorie
home.
According to Yvonne Rorie, the shooting started
fifteen to twenty minutes later. Tamika Thompson later
testified that she did not know precisely how much time
elapsed, but knew it was more than five minutes later. A
police radio call reported the shooting at 8:23 or 8:24 p.m.
When police arrived, Tamika and Yvonne reported
that they had seen the men standing at the corner, that at least
two of them had guns, and that one had pointed a gun at the
Rorie home before he started shooting. Tamika described the
assailant as tall, light-skinned, skinny, and about 22 years-old.
She said he was wearing a blue cap with a red brim, a white
shirt, and blue jean shorts, and driving a four-door gray car.
Yvonne described the shooter as tall, light-skinned, and
wearing a white shirt, blue or black shorts, and a white
baseball cap. Yvonne also identified the shooter as Anthony
Brown. Three days later, both Tamika and Yvonne picked
Anthony Brown out of a photo array. At trial, Tamika again
identified Anthony Brown as one of the shooters.

-- 4 of 29 --

5
Tiffany Thompson, who saw the gunmen approaching,
told police the shooter lived at 5408 Girard Avenue. The
police promptly executed a search warrant for that address
and discovered some clothing matching the descriptions
Tamika and Yvonne had provided, including a white shirt,
dark blue jean shorts, brown boots, and an Atlanta Braves
cap. They also found a photo of Anthony Brown wearing the
same clothes, his mail, and a traffic citation issued on the day
of the shooting. A warrant issued for Brown‘s arrest, and he
surrendered later that week.
B
At trial, Brown presented a misidentification defense
and an alibi defense. His misidentification defense relied on
the testimony of Frances Rorie‘s grandson, Gary Jones, and
Rorie‘s daughter, Timmsel.
Contrary to the testimony of Tamika Thompson and
Yvonne Rorie, Gary Jones testified on direct examination that
the shooter was short, dark-skinned, and wearing a plaid shirt,
blue shorts, black Timberland boots, and a red and blue
Atlanta Braves cap. He described another man (not the
shooter) as a light-skinned, bald, mustachioed man, who wore
a tee-shirt, blue shorts, and Reebok sneakers. On cross-
examination, the prosecution impeached Jones with his prior
statement to police, which was not only contrary to his
testimony on direct examination, but also similar to the
descriptions given by Tamika Thompson and Yvonne Rorie
shortly after the shooting. In that statement, Jones described
the shooter as tall and light-skinned, wearing an Atlanta
Braves cap, light blue shorts, a white shirt, and black boots.

-- 5 of 29 --

6
Timmsel Rorie testified on direct examination that she
initially described the shooter to police as tall, light-skinned,
and wearing a red plaid shirt. She identified another man (not
the shooter) as a tall, light-skinned man of 18 or 19, wearing a
white shirt and long blue jeans. According to Timmsel, that
man was Anthony Brown. On cross-examination, the
prosecution impeached Timmsel with the fact that just days
after the shooting she identified Anthony Brown as the
shooter. Moreover, Timmsel eventually made an in-court
identification of Anthony Brown as the shooter and testified
that she did not correct her initial misstatement to the police
because she wanted her boyfriend to kill Brown to avenge her
mother‘s murder.
Brown‘s alibi defense relied on the testimony of
Lynnette Bright, who was the college roommate of Brown‘s
cousin, Tiyana Miller. According to Bright, she and Miller
went to a TGI Friday‘s restaurant at 17th Street and Benjamin
Franklin Parkway to buy take-out food at approximately 7:30
p.m. on the night of the shooting. Bright testified that about
fifteen minutes after they arrived, Miller noticed Anthony
Brown walking toward the front of the restaurant. Miller and
Brown spoke for a few minutes before Brown returned to his
table. Bright testified that she and Miller were seated near the
front door of the restaurant, that they waited a long time to get
their food, and that they left between 8:15 and 8:20 p.m.
Bright stated that she never saw Brown leave.
On cross-examination, Bright admitted that she knew
several of Brown‘s relatives. She was impeached with
inconsistent statements regarding the time she arrived at the
restaurant, as well as with her failure to cooperate with the
District Attorney‘s investigation. Bright also was unable to
describe what Brown was wearing at the restaurant. Finally,

-- 6 of 29 --

7
Bright eventually admitted that she lied to a defense
investigator when she told him that she saw Brown eating
with his friends when she left the restaurant and she never
saw Brown seated at his table.
Brown‘s cousin Tiyana Miller corroborated Bright‘s
testimony that they went to the TGI Friday‘s between 7:15
and 7:30 p.m. According to Miller, it already was dark when
they left for the restaurant, and they waited fifteen to twenty
minutes before placing their order. While they waited, Miller
saw Brown emerge from the dining area to use the phone,1
and she chatted with him. Miller testified that she and Bright
waited about an hour for their food and left at approximately
8:20 p.m. She stated that when she left, Brown still was
seated with Anthony Fingers, Kevin Johnson, and two
women.
Miller was impeached with evidence that after the
shooting she returned to the restaurant to ask if they had a
video surveillance system that could pinpoint when Brown
left on the night of the murder. Her testimony was also
undermined because she neither contacted family members to
advise them that she had seen Brown that night, nor contacted
the police with her information or responded to letters from
the District Attorney. Finally, like Bright, she could not
describe what Brown was wearing at the restaurant.
Kevin Johnson, who allegedly accompanied Brown to
the restaurant, also testified for the defense. According to
1 Kim Brown had called her brother, Anthony Brown,
and he returned her call from a payphone at the restaurant.
Kevin Johnson later testified that Brown told him the phone
call concerned the dispute at Conestoga and Girard.

-- 7 of 29 --

8
Johnson, they arrived at TGI Friday‘s before 7:00 p.m., while
it was still daylight, and left after it was dark. He testified
that they were seated on the second floor, not in the bar area
where Bright and Miller could have seen them.
Finally, Brown testified in his own defense. Brown
told the jury that on the day of the murder, he was driving to a
different TGI Friday‘s when he received a traffic citation,
which lists the time of the stop as 6:41 p.m. Brown gave the
officer an alias and an incorrect address because he often
violated traffic laws and feared being arrested. According to
Brown, he arrived at the first TGI Friday‘s with Kevin
Johnson, Anthony Fingers, and three women they met that
afternoon, but it was crowded, so they decided to go to the
TGI Friday‘s on the Parkway instead, arriving at
approximately 7:10 to 7:15 p.m. After they were seated,
Brown saw Miller and Bright near the door. He talked to
them before his food arrived and eventually left the restaurant
at 8:45 p.m.2
Brown testified that after leaving the restaurant, he,
Anthony Fingers, and Kevin Johnson drove to Johnson‘s
automotive detail shop at 59th and Race Streets, where they
spent about ten minutes. Brown claimed they then drove
home to Girard Avenue, where he found police already
gathered.
2 Although Brown later conceded on collateral review
that he was given a receipt for his bill at TGI Friday‘s, he
never offered it into evidence to corroborate when he left the
restaurant.

-- 8 of 29 --

9
C
Brown was represented at trial by attorney Tariq El
Shabazz. When El Shabazz rose to call the defense‘s alibi
witnesses, the prosecution objected because El Shabazz had
failed to file a notice of alibi as required under Pennsylvania
law. See Pa. R. Crim. P. 567. El Shabazz initially claimed
that he had filed the notice, but later admitted that he had not.
Notwithstanding El Shabazz‘s failure to file a notice of alibi,
the trial court allowed Bright, Miller, and Johnson to testify
because the prosecution had received written statements from
them. But the trial court excluded two alibi witnesses who
worked at TGI Friday‘s: manager Andre Osborne and
waitress Stacy Szmyt.
The jury convicted Brown of all charges. After his
post-trial motions were denied, Brown raised several issues
on direct appeal, including that counsel was ineffective for
failing to file a notice of alibi. The Superior Court dismissed
the claims without prejudice to Brown‘s right to raise them on
collateral review. The Pennsylvania Supreme Court
subsequently denied Brown‘s petition for allowance of
appeal.
D
Brown filed a petition for collateral review under
Pennsylvania‘s Post-Conviction Relief Act (PCRA), raising
the same issues he raised on direct appeal. Brown later filed a
supplement to the petition, arguing for the first time that his
counsel was ineffective for failing to present the testimony of
Malik Easley, an alleged eyewitness to the shooting.

-- 9 of 29 --

10
Attached to Brown‘s PCRA petition were two witness
statements and three affidavits further supporting his alibi.
The witness statements were from the two witnesses who had
not been permitted to testify at trial: Andre Osborne and
Stacy Szmyt. Osborne confirmed he was a manager at TGI
Friday‘s on the night of the shooting and that he saw Brown
with two other men and some women at Table 307. Osborne
stated that he remembered them because they were loud and
because he suspected they might not pay their bill. Osborne
was unsure what time the group left but remembered that the
sun had already set. Szmyt stated that she waited on Table
307 that night and vaguely remembered serving a rowdy
group. She offered no information about when the group
departed.
The three affidavits supported Brown‘s claim that his
counsel was ineffective. Brown‘s father, Arthur Boyer,
attested that he told El Shabazz several times prior to trial that
alibi witnesses were available and asked if El Shabazz had
interviewed the waitress at the restaurant. El Shabazz replied
that he was ―working on it.‖ In a second affidavit, Brown
claimed he informed El Shabazz of his alibi, gave him the
names of his dinner companions, and told him their waitress‘s
name was Stacy. Brown claimed that El Shabazz: (1) never
interviewed any of the diners; (2) hired an investigator to
locate witnesses but failed to pay the fee; and (3) hired a new
investigator only on the eve of trial. The new investigator,
Brian Grevious, stated in an affidavit that he was retained
three days prior to trial and that he located Osborne and
Szmyt and took their statements.
The PCRA court dismissed Brown‘s petition for
collateral relief. Commonwealth v. Brown, C.P. 9810–0366,
at *1 (Pa. Comm. Pleas Ct. June 6, 2008). Citing both

-- 10 of 29 --

11
Strickland v. Washington and state law precedents, the court
rejected Brown‘s ineffective assistance claim. Id. at *5–17.
The court reasoned that El Shabazz‘s performance was not
deficient because he did not learn of the two alibi witnesses
until the sixth day of trial. Id. at *7. The court also
concluded that the absence of Osborne‘s and Szmyt‘s
testimony did not prejudice Brown because, even assuming
its relevancy, it would have been ―cumulative‖ and
―unnecessary.‖ Id. at *8.
Brown appealed to the Pennsylvania Superior Court,
which affirmed. Commonwealth v. Brown, No. 2271 EDA
2005, at *1 (Pa. Super. Ct. Apr. 9, 2009). The Superior Court
reasoned that Brown had failed to show that the alibi
witnesses were available to testify at trial. Id. at *10–11.
Alternatively, the Superior Court concluded that even had El
Shabazz been aware of the witnesses, their testimony would
have been ―merely cumulative.‖ Id. at *12.
While Brown‘s appeal was pending in the Superior
Court, he filed a petition for writ of habeas corpus in the
United States District Court for the Eastern District of
Pennsylvania. Following the Superior Court‘s affirmance, the
Magistrate Judge conducted an evidentiary hearing regarding
Brown‘s ineffective assistance of counsel claim.
The evidentiary hearing revealed that although he had
hired an investigator, El Shabazz never received any
information because he failed to pay the bill. Brown v.
Wakefield, No. 07-1098, 2010 WL 2606443, at *12 (E.D. Pa.
Jan. 28, 2010). El Shabazz then hired Grevious ―less than
one week prior to the start of trial.‖ Id. at *9. The night
before El Shabazz brought Szmyt and Osborne to court,

-- 11 of 29 --

12
Grevious informed El Shabazz that he had found them and
they were ―ready and willing to testify.‖ Id.
Osborne‘s and Szmyt‘s testimony at the federal
evidentiary hearing added little to the witness statements they
had submitted to the state courts. Osborne remembered that
he was worried that Brown and his party might not pay their
bill, that they eventually paid, and that it was ―dark‖ when
they left. Id. at *9–10. Szmyt reaffirmed that her prior
statements were her true recollections of the events of that
night, but she could ―not really‖ recall the events by the time
of the hearing.
El Shabazz testified that he failed to submit a notice of
alibi for Osborne and Szmyt, as well as for an additional
witness, Malik Easley. Id. at *12. El Shabazz stated that he
would not have called Easley to testify because of strategic
concerns,3 but admitted that his failure to file a notice for
Szmyt and Osborne impaired his defense of Brown. Id.
The Commonwealth also submitted evidence at the
hearing. Philadelphia Police Detective John McDermott
stated that he had driven the route from TGI Friday‘s to the
corner of Conestoga and Girard and that the trip took twenty-
one minutes in moderate traffic. Id. at *13. A diversion to
3 If called at trial, Easley would have testified that he
was present during the murder and that, although he did not
clearly see the shooting, he knew Brown was not the
assailant. Id. at *10. El Shabazz testified he would not have
called Easley because his testimony would have corroborated
some details of the descriptions of the shooter given by
prosecution witnesses and would have placed a car similar to
Brown‘s at the scene. Id.

-- 12 of 29 --

13
Johnson‘s auto shop added only one or two minutes. Id.
Using an almanac, Detective McDermott testified that the sun
set on September 7, 1998, at 7:23 p.m. and that the end of
―civil twilight‖ was 7:50 p.m. Id.
The Magistrate Judge recommended granting Brown‘s
petition. According to the Magistrate Judge, El Shabazz‘s
mistakes prejudiced Brown because the ―evidence of guilt
was hardly overwhelming,‖ no murder weapon was ever
found, and descriptions of the assailant were inconsistent. Id.
at *15. He also noted that Osborne would have been the only
disinterested witness to testify that Brown left the restaurant
when it was ―dark,‖ which would have corroborated Bright‘s
and Miller‘s testimony that Brown left the restaurant too late
to be the shooter. Id.
The District Court adopted the Magistrate Judge‘s
recommendation and granted Brown‘s petition, largely
because it agreed that Osborne‘s testimony corroborated
Brown‘s alibi. Brown v. Wakefield, No. 07-1098, 2010 WL
2596900, at *10 (E.D. Pa. June 24, 2010). Noting that the
sun set at 7:23 p.m. and the end of civil twilight was 7:50
p.m., the District Court concluded that Osborne‘s testimony
that Brown left TGI Friday‘s when it was ―dark‖ placed
Brown at the restaurant at least sometime between 7:23 and
7:50 p.m. Id. Because Yvonne Rorie testified that she saw
Kareema Latimer meet with Brown fifteen to twenty minutes
before the shooting, the District Court concluded that Brown
would have had to be at the scene at about 8:00 p.m. Id.
Brown testified that it took him fifteen minutes to drive to the
auto shop and that he spent ten minutes there. And Detective
McDermott testified at the evidentiary hearing that a similar
trip took twenty-one minutes. Id. at *11. Based on that
testimony, the District Court reasoned that ―a jury could have

-- 13 of 29 --

14
concluded from Osborne‘s testimony, had it been presented at
trial, that [Brown] did not leave until twilight had ended, 7:50
p.m., a time when [Brown] would likely have been unable to
reach the scene of the crime in sufficient time to meet with
Kareema Latimer.‖ Id. Moreover, Osborne‘s statement that
Brown left when it was ―dark‖ corroborated Miller‘s,
Bright‘s, and Brown‘s testimony that Brown left after 8:15
p.m. Id.
The District Court did not adopt the Magistrate
Judge‘s finding that Osborne had recalled Brown leaving
when it was ―nighttime, not just twilight,‖ because Osborne
testified only that it was ―definitely dark outside.‖ Id. The
District Court also declined to adopt the Magistrate Judge‘s
conclusion that El Shabazz was aware of alibi witnesses
before the trial started. Id. This disagreement between the
Magistrate Judge and the District Court was immaterial,
however, because El Shabazz should have been aware of the
witnesses. Id. at *12–13. Finally, the District Court adopted
the conclusion that Osborne and Szmyt were ―ready and
willing to testify,‖ based on the hearing testimony of El
Shabazz, Grevious, Osborne, and Szmyt. Id. at *13.
In light of these factual findings, the District Court
held that ―the PCRA court‘s application of Strickland, and the
Superior Court‘s affirmance, [were] unreasonable.‖ Id. at
*14. In doing so, the Court reached two overarching
conclusions. First, the state courts applied the wrong standard
for determining whether El Shabazz was ineffective because
they did not sufficiently consider whether he conducted a
diligent investigation into possible alibis for Brown. Id. at
*14–16. Second, the state courts unreasonably concluded that
Brown was not prejudiced by his counsel‘s mistakes. The
state courts failed to properly consider whether there was a

-- 14 of 29 --

15
reasonable probability that, but for counsel‘s unprofessional
errors, the result of the proceedings would have been
different. Such a probability existed, according to the District
Court, because Osborne was a disinterested witness who
―would have bolstered the credibility of the petitioner and
other alibi witnesses.‖ Id. at *17. Regarding Osborne‘s
testimony that it was ―dark‖ when Brown left the restaurant,
the Court wrote: ―while not definitely proving that [Brown]
could not have been at the scene of the crime . . . [it] puts into
serious question whether [Brown] had enough time to make it
. . . to the scene of the shooting . . . .‖ Id. The District Court
also concluded that the state courts incorrectly regarded
Osborne‘s and Szmyt‘s testimony as ―cumulative.‖ Id. at
*18. According to the Court, ―where defense witnesses
[were] impeached for having a close relationship to [Brown],
and prosecution eyewitnesses had a conflict with [Brown‘s]
family, the existence of disinterested witnesses corroborating
[Brown‘s] alibi could weigh heavily in the jury‘s decision of
which set of witnesses to credit.‖ Id. Therefore, ―a
reasonable probability exist[ed] that, if the jury had heard
Osborne‘s testimony, the jury would have found reasonable
doubt.‖ Id.
The Commonwealth raises two issues on appeal. First,
it claims the District Court erred when it held an evidentiary
hearing because Brown was not diligent in developing the
factual record in state court. Second, it argues the District
Court erred when it concluded that the state courts
unreasonably applied federal law in denying Brown‘s
petition.

-- 15 of 29 --

16
II
The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254(a). Our jurisdiction
lies under 28 U.S.C. §§ 1291 and 2253(a).
―We have plenary review over the District Court‘s
grant of habeas corpus.‖ Washington v. Sobina, 509 F.3d
613, 618–19 (3d Cir. 2007) (citing Rolan v. Vaughn, 445 F.3d
671, 577 (3d Cir. 2006)). ―Accordingly, we will ‗review the
state courts‘ determinations under the same standard that the
District Court was required to apply,‘‖ which are the
standards set forth in AEDPA. Lewis v. Horn, 581 F.3d 92,
100 (3d Cir. 2009) (quoting Thomas v. Horn, 570 F.3d 105,
113 (3d Cir. 2009)).
A federal court may not grant habeas relief to a person
in state custody whose claims were adjudicated on the merits
unless that adjudication:
(1) 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; or
(2) resulted in a decision that 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).

-- 16 of 29 --

17
III
As a threshold matter, the Commonwealth claims the
District Court should not have granted Brown an evidentiary
hearing. We agree based on Cullen v. Pinholster, 131 S. Ct.
1388 (2011), which the Supreme Court decided after the
District Court ruled in this case. In Pinholster, the Supreme
Court explained that: ―review under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated
the claim on the merits.‖ Id. at 1398.
Because we find Pinholster controlling, we review it in
some detail. Pinholster was convicted in California state
court of first-degree murder and sentenced to death. He
sought post-conviction relief, claiming his counsel was
ineffective at the penalty phase by failing to investigate or
present mitigating evidence, including evidence that
Pinholster suffered from mental disorders. Id. at 1396. The
psychiatrist Pinholster‘s counsel consulted before trial, Dr.
Stalberg, concluded that Pinholster did not suffer from a
mental disorder. Not surprisingly, Dr. Stalberg was not called
to testify at Pinholster‘s trial. Id. On collateral review,
Pinholster supported his ineffective assistance claim with
academic, medical, and legal records, as well as declarations
from family members, one of his trial attorneys, and a
psychiatrist, all of which suggested Pinholster suffered from
bipolar mood and seizure disorders. Id. Pinholster‘s petition
was denied. Id.
Pinholster filed a federal habeas petition in which he
reiterated his ineffective assistance claim and added new
allegations that his counsel failed to provide Dr. Stalberg with
enough information to make an accurate report. Id. In
support of Pinholster‘s new allegations, Dr. Stalberg declared

-- 17 of 29 --

18
that had he known of evidence gathered after trial, he would
have conducted ―further inquiry‖ before concluding that
Pinholster did not suffer from a mental disorder. Id.
The federal district court granted Pinholster an
evidentiary hearing. Id. Before the hearing, however, Dr.
Stalberg averred that the new evidence did not change his
diagnosis. Id. at 1397. Consequently, Pinholster did not call
him to testify at the hearing, opting instead for new experts
whose testimony would be more favorable to him. Id. The
state also offered evidence at the federal evidentiary hearing,
calling a psychiatrist who denied that Pinholster suffered
from a mental disorder. Id. The district court granted
Pinholster habeas relief, and the Court of Appeals for the
Ninth Circuit ultimately affirmed in an en banc opinion. See
Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc).
After considering evidence from the evidentiary hearing, the
Ninth Circuit concluded that the California Supreme Court
had unreasonably applied Strickland. Id. at 666–84.
The Supreme Court reversed, holding that ―[i]f a claim
has been adjudicated on the merits by a state court, a federal
habeas petition[er] must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court.‖
Pinholster, 131 S. Ct. at 1400 (footnote omitted). The Court
reasoned that the purpose of 28 U.S.C. § 2254 is ―to channel
prisoners‘ claims first to the state courts‖ and that ―[i]t would
be contrary to that purpose to allow a petitioner to overcome
an adverse state-court decision with new evidence introduced
in a federal habeas court and reviewed by that court in the
first instance effectively de novo.‖ Id. at 1398–99. The Court
was puzzled by ―the notion that a state court can be deemed
to have unreasonably applied federal law to evidence it did
not even know existed.‖ Id. at 1399 n.3.

-- 18 of 29 --

19
In light of Pinholster, district courts cannot conduct
evidentiary hearings to supplement the existing state court
record under 28 U.S.C. § 2254(d). Otherwise, federal habeas
petitioners would be able to circumvent the finality of state
court judgments by establishing a new factual record. This
would contravene AEDPA, which requires petitioners to
diligently present the facts in state court before proceeding to
the federal courthouse. As the Supreme Court reaffirmed:
―Federal courts sitting in habeas are not an alternative forum
for trying facts and issues which a prisoner made insufficient
effort to pursue in state court proceedings.‖ Pinholster, 131
S. Ct. at 1401 (citing Williams v. Taylor, 529 U.S. 420, 437
(2000)).
As in Pinholster, here Brown‘s state petition for post-
conviction relief was denied on the merits, and he sought
federal relief under 28 U.S.C. § 2254(d). Like Pinholster,
Brown sought to supplement the record with evidence he
never presented to the state courts. The Magistrate Judge
conducted an evidentiary hearing to explore Brown‘s
ineffective assistance claim, which essentially resulted in a de
novo trial, as both sides marshaled new evidence for the
federal hearing. This was contrary to AEDPA, which obliged
the District Court to base its review only on the evidence
Brown presented in state court. Therefore, we hold that the
District Court erred in conducting an evidentiary hearing.4
4 Although the parties‘ arguments regarding the
propriety of the federal evidentiary hearing focus on 28
U.S.C. § 2254(e)(2), Pinholster renders that provision
inapplicable to this case. When a prisoner has ―failed to
develop the factual basis of a claim in State court
proceedings,‖ § 2254(e)(2) bars a federal court from holding

-- 19 of 29 --

20
IV
Having determined that the federal evidentiary hearing
was improper, we consider Brown‘s habeas petition in light
of the record he made in the Pennsylvania courts.
Brown claims the denial of his petition involved an
―unreasonable application of[] clearly established Federal
law, as determined by the Supreme Court of the United
an evidentiary hearing unless certain statutory requirements
are met. Pinholster, 131 S. Ct. at 1400 n.4.
Prior to AEDPA, ―the decision to grant an evidentiary
hearing was generally left to the sound discretion of district
courts.‖ Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(citing Brown v. Allen, 344 U.S. 443, 463–64 (1953), and
Townsend v. Sain, 372 U.S. 293, 313 (1963)). ―AEDPA,
however, changed the standards for granting federal habeas
relief.‖ Id. at 473. Accordingly, we previously recognized
that so long as a petitioner does not run afoul of § 2254(e)(2),
―the district court [is] permitted under the AEDPA, though
not required, to grant an evidentiary hearing.‖ Goldblum v.
Klem, 510 F.3d 204, 220–21 (3d Cir. 2007) (citing Campbell
v. Vaughn, 209 F.3d 280, 286–87 (3d Cir. 2000)). This is no
longer the case in light of Pinholster and our holding today.
Although it speaks directly to the unavailability of
evidentiary hearings to adjudicate claims brought under §
2254(d), the exact scope of § 2254(e)(2) is unclear after
Pinholster. See Pinholster, 131 S. Ct. at 1401 n.8 (―We see
no need in this case to address the proper application of §
2254(e)(2).‖). It is clear, however, that our jurisprudence
applying § 2254(e)(2) remains applicable ―where §
2254(d)(1) does not bar federal habeas relief.‖ Id. at 1401.

-- 20 of 29 --

21
States.‖ 28 U.S.C. § 2254(d)(1). Specifically, he contends it
was unreasonable for the Superior Court to conclude that El
Shabazz‘s failure to develop an alibi defense did not warrant
a new trial based on Strickland. We disagree.
In determining whether a state court unreasonably
applied federal law under 28 U.S.C. § 2254(d)(1), ―a habeas
court must determine what arguments or theories supported or
. . . could have supported, the state court‘s decision; and then
it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme Court].‖
Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The
question is not whether the state court‘s holding was wrong,
but whether it was reasonable. Indeed, ―even a strong case
for relief does not mean the state court‘s contrary conclusion
was unreasonable.‖ Id. (citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003)).
There is no dispute here as to the relevant clearly
established law. Under Strickland‘s familiar two-part test, we
consider whether counsel‘s performance was deficient and, if
so, whether it prejudiced Brown. Strickland, 466 U.S. at 687.
―The standards created by Strickland and § 2254(d) are both
‗highly deferential,‘ and when the two apply in tandem, the
review is ‗doubly so.‘‖ Harrington, 131 S. Ct. at 788
(citations omitted). Accordingly, we are ―not authorized to
grant habeas corpus relief simply because we disagree with
the state court‘s decision or because we would have reached a
different result if left to our own devices.‖ Werts v. Vaughn,
228 F.3d 178, 197 (3d Cir. 2000) (citing Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir.
1999)). The question is ―whether there is any reasonable

-- 21 of 29 --

22
argument that counsel satisfied Strickland‘s deferential
standard.‖ Harrington, 131 S. Ct. at 788.
The Commonwealth has not challenged the District
Court‘s holding that El Shabazz was deficient, so we will
consider only whether his mistakes prejudiced Brown. To
demonstrate prejudice, Brown must establish ―a reasonable
probability that, but for counsel‘s unprofessional errors, the
result in the proceeding would have been different.‖
Strickland, 466 U.S. at 694. He ―need not show that
counsel‘s deficient performance ‗more likely than not altered
the outcome of the case‘—rather, he must show only ‗a
probability sufficient to undermine confidence in the
outcome.‘‖ Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005)
(quoting Strickland, 466 U.S. at 693–94). On the other hand,
it is not enough ―to show that the errors had some conceivable
effect on the outcome of the proceeding.‖ Harrington, 131 S.
Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel‘s
errors must be ―so serious as to deprive the defendant of a fair
trial.‖ Id. at 787–88 (citing Strickland, 466 U.S. at 687). The
likelihood of a different result must be substantial, not just
conceivable. Id.
Anthony Brown has not shown that his counsel‘s
failure to develop an alibi defense prejudiced his trial. Unlike
many criminal prosecutions, the case against Brown was not
based on circumstantial evidence. Tamika Thompson,
Timmsel Rorie, and Yvonne Rorie all witnessed the murder
and picked Brown out of a photo array. Tamika and Timmsel
testified at trial that Brown was the assailant. Just minutes
after the shooting, Tamika and Yvonne gave similar
descriptions of the assailant to police, and those descriptions
matched Brown‘s appearance. Tiffany Thompson, who saw
the men approaching, told police that the shooter lived at

-- 22 of 29 --

23
5408 Girard Avenue, where officers recovered clothing
matching the descriptions given by Tamika and Yvonne,
along with a photograph of Brown wearing those clothes,
Brown‘s mail, and the traffic citation that Brown had received
en route to TGI Friday‘s on the night of the shooting. Tamika
also told police that the shooter drove a four-door gray car, a
description matching Brown‘s automobile. Tamika also
rebutted Brown‘s alibi by placing his car at Conestoga and
Girard at the time of the murder, rather than at TGI Friday‘s
or the auto shop.
In addition to physical evidence and eyewitness
testimony, the prosecution presented a strong motive for the
crime. The day of the murder, Brown‘s sister Kim was
involved in a heated feud with the victim and her family. A
Brown family friend, Kareema Latimer, had previously
threatened to ―spray the whole corner,‖ and she was seen, just
minutes before the murder, pointing out the Rorie home to
Anthony Brown and four other men. Kevin Johnson testified
that Kim Brown paged her brother Anthony at TGI Friday‘s
to talk about the dispute between the Rories of Conestoga
Street and the Browns of Girard Avenue, and Lynnette Bright
and Tiyana Miller claimed to have seen Brown emerge from
the restaurant to return that call on a pay phone. Although the
timeline is inexact, the shooting occurred less than an hour
later. Based on this evidence, the jury reasonably could have
concluded that Anthony Brown killed Frances Rorie in
retaliation for the dispute between the Rories and the Browns.
Nor would the excluded alibi witnesses, Osborne and
Szmyt, have rebutted the prosecution‘s case. In their witness
statements submitted to the PCRA court, Osborne and Szmyt
merely recalled that Brown was at TGI Friday‘s on the
evening of the murder, a fact the prosecution conceded

-- 23 of 29 --

24
throughout the trial. Neither Osborne nor Szmyt remembered
when Brown departed the restaurant, and Osborne could say
only that the sun had set. The murder occurred shortly before
8:24 p.m., and Brown was seen conferring with Kareema
Latimer five to twenty minutes earlier, so Osborne‘s and
Szmyt‘s statements were consistent with the prosecution‘s
theory of the case. A jury could have determined that Brown
left the restaurant sometime after it appeared to Osborne that
the sun had set and still had time to meet with Kareema
Latimer shortly after 8:00 p.m. before opening fire around
8:23 p.m. Based on this timeline, it was not unreasonable for
the Pennsylvania Superior Court to conclude that there was
no prejudice under Strickland because the excluded testimony
would have been ―merely cumulative.‖
V
Even if the federal evidentiary hearing had been
proper, we would hold that El Shabazz‘s deficient
performance did not prejudice Brown. In holding otherwise,
the District Court‘s ―lengthy opinion . . . discloses an
improper understanding of § 2254(d)‘s unreasonableness
standard and of its operation in the context of a Strickland
claim.‖ Harrington, 131 S. Ct. at 785.
The evidence presented at the evidentiary hearing
added little to Brown‘s defense. The only addition to
Osborne‘s prior statement in state court was his recollection
that it was ―dark‖ when Brown left the restaurant. This vague
description is consistent with his prior testimony that the sun
had set. Similarly, Szmyt testified only that her prior
statement was an accurate recollection. Thus, Osborne‘s and
Szmyt‘s hearing testimony merely confirmed their state court
testimony.

-- 24 of 29 --

25
Ironically, the Commonwealth presented the evidence
the District Court found most helpful to Brown because it
filled in some of the gaps in Brown‘s timeline. For example,
Detective McDermott stated that it took approximately
twenty-two to twenty-three minutes to make the trip from
TGI Friday‘s to the corner of Conestoga and Girard.
McDermott also testified that the sun set on September 7,
1998, at 7:23 p.m. and that the end of ―civil twilight‖ was
7:50 p.m.
But that evidence too was insufficient to establish an
alibi for Brown. Assuming Brown left the restaurant when it
was ―dark‖ between sunset (7:23 p.m.) and the end of
―twilight‖ (7:50 p.m.), he could have reached the corner of
Conestoga and Girard in time to meet with Kareema Latimer
shortly after 8:00 p.m. If he left at 7:50 p.m. and drove the
―twenty-two to twenty-three minutes‖ to the crime scene, he
would have arrived between 8:12 and 8:13 p.m., eleven or
twelve minutes before the murder.5 Witnesses testified that
the shooting started sometime ―after five minutes‖ and
perhaps ―fifteen to twenty minutes‖ later, estimates that are
far from precise. Even assuming that he left TGI Friday‘s at
7:50 p.m., Brown could have been the shooter. Moreover, a
scenario in which he left as early as 7:23 p.m.—a full twenty-
seven minutes earlier—is consistent with the record, even
after the evidentiary hearing.
Despite the equivocal nature of this evidence, the
District Court found prejudice and granted relief. In doing so,
the District Court gave too little deference to the
5 The District Court neither accepted nor rejected
Brown‘s self-serving testimony that he stopped at the auto
store, and we need not consider it.

-- 25 of 29 --

26
Pennsylvania Superior Court. See Harrington, 131 S. Ct. at
786 (―The [court] appears to have treated the
unreasonableness question as a test of its confidence in the
result it would have reached under de novo review.‖). The
proper question was whether fair-minded jurists could agree
with the Superior Court, not whether it erred in denying
relief. ―An unreasonable application of federal law is
different from an incorrect application of federal law.‖
Pinholster, 131 S. Ct. at 1411 (citing Harrington, 131 S. Ct.
at 785). That is because ―[a] state court must be granted a
deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.‖
Harrington, 131 S. Ct. at 785.
The District Court concluded that ―Osborne‘s
testimony, had it been presented at trial, would have
corroborated the testimony of other witnesses that placed
petitioner at TGI Friday‘s at a time when petitioner could not
have been at the scene of the murder in time to consult with
Kareema Latimer at approximately 8:00 p.m. or to commit
the shooting before 8:23 p.m.‖ Brown, 2010 WL 2596900, at
*18 (emphasis added). As the Commonwealth argues,
determining that Osborne‘s testimony placed Brown at the
restaurant too late for him to be the shooter required the Court
to draw several inferences in Brown‘s favor:
Even without crediting [Brown‘s] testimony
about the [ten minute] stopover, [Brown] would
have had to leave the restaurant by
approximately 7:45 p.m., a time within twilight.
As Osborne testified at the evidentiary hearing
that ―it wasn‘t light out . . . it was definitely
dark outside,‖ a jury could have concluded from
Osborne‘s testimony, had it been presented at

-- 26 of 29 --

27
trial, that petitioner did not leave until twilight
had ended, 7:50 p.m., a time when petitioner
would likely have been unable to reach the
scene of the crime in sufficient time to meet
with Kareema Latimer. The statement that it
was ―dark‖ out also provides corroboration to
Miller‘s, Bright‘s, and [Brown‘s] testimony at
trial that [Brown] did not leave the restaurant
until after 8:15 p.m., a time when it would have
clearly been dark out.
Id. (emphasis added).
Although the District Court correctly determined that a
jury could have concluded Brown did not leave until after
7:50 p.m., or even 8:15 p.m., the critical question is whether a
reasonable jury could have concluded otherwise. The sun set
at 7:23 p.m., a half hour before ―twilight‖ ended and almost
an hour before 8:15 p.m., the time at which the District Court
assumed that it was ―clearly‖ dark outside. The District Court
provides no explanation for why it might not have been
―dark‖ at, for example, 7:30 p.m., when Brown would have
had enough time to drive to the scene of the murder, making
the uncorroborated ten-minute stop along the way. Kevin
Johnson testified at trial that it was dark by 7:00 p.m., and
Tiyana Miller testified that it was already dark when she and
Lynnette Bright walked to the restaurant between 7:15 and
7:30 p.m. In fact, the sky could have been dark even before
sunset because it rained shortly after the murder. Brown has
not, and cannot, present incontrovertible evidence that it was
―dark‖ only after 7:50 p.m. Though Osborne‘s testimony in
some scenarios might suggest that Brown could not have been
the assailant, several assumptions are necessary to reach that
conclusion. But ―Strickland places the burden on the

-- 27 of 29 --

28
defendant . . . to show a ‗reasonable probability‘ that the
result would have been different.‖ Wong v. Belmontes, 130 S.
Ct. 383, 390–91 (2009). Brown cannot meet that burden in
light of the speculative and equivocal nature of the evidence
of record.
The District Court also emphasized that Osborne was
the only disinterested witness who placed Brown at the
restaurant. Brown, 2010 WL 2596900, at *18. In the District
Court‘s view, ―[f]inding that there is no prejudice solely
because the testimony would be in accord with the testimony
of others and thereby ‗cumulative‘ is an unreasonable
application of Strickland‘s prejudice prong when such
corroborative testimony would come from a witness that a
jury could find more credible than those who testified at
trial.‖6 Id.
6 The District Court concluded that ―the state courts
applied a blanket rule that testimony which would mirror
other witnesses was ‗cumulative‘ and could not be
prejudicial.‖ Id. at *16. We disagree that the state courts
applied such a rule. Brown‘s state habeas petition was not
denied ―merely‖ because the excluded evidence was
―cumulative.‖ Rather, it was denied because the evidence
was ―merely cumulative.‖ Id. at *14 n.9 (―As an appellant is
not prejudiced by the failure of trial counsel to present merely
cumulative evidence, an appellant‘s claim of ineffective
assistance of counsel on this basis must fail.‖ (quoting the
Superior Court opinion)). In other words, the state courts
reasoned that there was no prejudice because the excluded
evidence did not add anything material to the existing record.
Cf. Pinholster, 131 S. Ct. at 1410 (―The ‗new‘ evidence
largely duplicated the mitigation evidence at trial.‖).

-- 28 of 29 --

29
Yet even if Osborne would have provided more
credible testimony than other witnesses who placed Brown at
the restaurant, it does not follow that there was a reasonable
probability that Osborne‘s testimony would have made a
difference. The District Court noted that ―such corroborative
testimony would come from a witness that a jury could find
more credible than those who testified at trial,‖ id. (emphasis
added), but that does not mean that there is a reasonable
probability that a jury would do so. Speculation is not
enough under AEDPA. The Superior Court‘s determination
must necessarily be unreasonable. Cf. Pinholster, 131 S. Ct.
at 1410 (―The new material is thus not so significant that,
even assuming . . . counsel performed deficiently, it was
necessarily unreasonable for the [state court] to conclude that
[there was no prejudice].‖ (emphasis added)).
Ultimately, the District Court reasoned that Osborne
―could have corroborated large portions of [Brown‘s] alibi,‖
which ―placed [Brown] at the TGI Friday‘s at a time when
[he] could not have been at the scene of the murder in time to
consult with Kareema.‖ Brown, 2010 WL 2596900, at *17–
18. Had El Shabazz presented Osborne‘s testimony to the
state court jury, it might have agreed with the District Court.
But it is equally plausible that Osborne‘s testimony would
have made no difference. Because AEDPA gives state courts
the benefit of that doubt, the judgment of the District Court
cannot stand. See Harrington, 131 S. Ct. at 780–81.
VI
For the reasons stated, we will reverse the judgment of
the District Court granting Brown‘s petition for writ of habeas
corpus.

-- 29 of 29 --