Wali Palmer v. Roy L. Hendricks

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2991
____________
WALI PALMER,
Appellant
v.
ROY L. HENDRICKS and PETER HARVEY
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 04-4455)
District Judge: Honorable Freda L. Wolfson
____________
Argued September 14, 2009
Before: SLOVITER, FUENTES, and ALDISERT, Circuit
Judges.
(Opinion Filed: January 26, 2010)
____________

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Stephen M. Latimer, Esq. (Argued)
Loughlin & Latimer
131 Main Street, Suite 235
Hackensack, NJ 07601
Counsel for Appellant
Jack J. Lipari, Esq. (Argued)
Assistant Prosecutor
Atlantic County Prosecutor’s Officer
4997 Unami Blvd., P.O. Box 2002
Mays Landing, NJ 08330
Counsel for Appellees
____________
OPINION OF THE COURT
____________
FUENTES, Circuit Judge:
In 1999, a jury found Wali Palmer guilty of multiple
crimes related to a 1998 shooting death in an Atlantic City bar.
After he unsuccessfully appealed his conviction, Palmer sought
post-conviction relief in the New Jersey state courts, asserting
that his attorney had been constitutionally ineffective. The New
Jersey courts denied Palmer’s petition for post-conviction relief,
and Palmer thereafter filed a petition for a writ of habeas corpus
in the New Jersey District Court pursuant to 28 U.S.C. § 2254.
The District Court did not convene an evidentiary hearing and

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dismissed Palmer’s petition.
We granted Palmer’s application for a certificate of
appealability as to three issues: (1) whether Palmer’s trial
attorney rendered ineffective assistance of counsel by failing to
advise Palmer of his right to testify at trial and at a suppression
hearing, (2) whether his attorney was ineffective in failing to
inform Palmer that the choice of whether to testify was
ultimately Palmer’s to make, and (3) whether the District Court
should have held an evidentiary hearing to resolve these claims.
We conclude that Palmer failed to make a prima facie showing
of the prejudice element of his ineffective assistance of counsel
claims and that the District Court did not abuse its discretion in
declining to convene an evidentiary hearing to resolve Palmer’s
claims.
I.
In March 1998, Palmer was attacked by a group of young
men at a bar in Atlantic City, New Jersey. During the scuffle,
Palmer pulled out a nine-millimeter automatic handgun and fired
two wild shots. One shot hit the leg of one of his attackers,
Shawn Brantley; the other shot hit and killed Palmer’s cousin,
Junior (Jerry) Cooper, who had been trying to help Palmer.
Palmer attempted to assist his cousin, but when he realized that
his cousin was not moving, Palmer fled the scene on a bicycle.
Police responded to the shooting, gathered a description of
Palmer from the wounded Brantley, and arrested Palmer a few
blocks from the bar.
After his arrest, Palmer gave several incriminating
statements to the police. He later moved, pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966), to exclude some of the

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statements. Palmer did not testify during the suppression
hearing, and the record is silent as to whether he wanted to
testify, what the contents of his testimony would have been, and
whether his attorney discussed with him the possibility or
propriety of testifying. The trial court eventually admitted most,
but not all, of the statements.
Trial was conducted between June 15 and June 23, 1999.
After the State rested, Palmer and his attorney, Williams Harris,
Esq., engaged in two colloquies on the record, which became
relevant during the state post-conviction proceedings. First,
once the State had rested, the court and counsel discussed
whether all of the State’s exhibits had been admitted into
evidence, after which the following colloquy took place:
COURT: If there’s an oversight you suddenly
discover, we can deal with that. We’ll take a
recess to afford Mr. Harris to consult with his
client.
HARRIS: Thank you judge.
(Recess)
(After Recess)
(Whereupon the following took place out of the
presence of the jury)
HARRIS: We’re going to rest, judge.
COURT: Okay.
(App. 200.)
The next day, before the court charged the jury, the

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following exchange between the court, defense counsel, and
Palmer took place:
HARRIS: Can I have a moment off the record?
COURT: Sure.
(Off Record)
HARRIS: Your honor, I’d like to have you read
the defendant’s election not to testify charge to
my client so that we can make a decision on that.
COURT: I’ll be glad to do that.
HARRIS: Thank you.
COURT: Mr. Palmer, this is the charge that I give
to the jury, if you wish, and it reads as follows.
It’s the constitutional right of a defendant to
remain silent. I charge you that you are not to
consider for any purpose or any manner in
arriving at your verdict the fact that the defendant
did not testify, nor should that fact enter into your
deliberations or discussions in any manner or at
anytime. The defendant is entitled to have the
jury consider all the evidence, and he is entitled to
the presumption of innocence even if he does not
testify as a witness.
HARRIS: Could I have one second, Judge?
(Discussion off the record. Counsel conferring
with Defendant.)
HARRIS: We’re going to ask that you do read it

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to the jury.
COURT: Mr. Palmer, you wish that given?
PALMER: Yes.
COURT: Thank you, I will.
(App. 207.)
The jury was charged and, after deliberating, it found
Palmer guilty of aggravated manslaughter, aggravated assault,
possession of a weapon for an unlawful purpose, and unlawful
possession of a weapon. Palmer was subsequently given a
sentence of twenty-two years for the manslaughter conviction,
a consecutive sentence of eight years for the assault conviction,
and a concurrent sentence of five years for the weapons
convictions. Palmer appealed the convictions and sentence,
challenging, among other things, the admissibility of the non-
suppressed statements and the severity of his sentence. The
New Jersey Appellate Division affirmed.
After his direct appeal failed, Palmer filed a petition for
post-conviction relief. In his petition, Palmer argued that Harris
had been constitutionally ineffective for, among other things,
failing to advise him of his right to testify on his own behalf.
Palmer submitted with his petition a sworn affidavit that stated:
• That, my former trial attorney Mr.
Williams Harris had never informed me
about my right to testify prior to trial, or
that the decision not to testify was my
decision to make and not Mr. Harris’s.
• That, prior to going into the courtroom,

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Mr. Harris had c[o]me down to the bullpen
or holding cell area in the courthouse, and
I had asked Mr. Harris when he was going
to put me on the stand to tell my side of
what happened, and Mr. Harris had told
me that he was not going to put me on the
stand or testify or call me as a witness.
• That, during my trial, the Judge began
reading something about me choosing not
to testify, and saying that I chose not to
testify, at which point I attempted to
respond by telling Mr. Harris that he’s
making it sound like I don’t want to tell
my side, and Mr. Harris tapped me to hold
up, and asked the judge for a second to
speak to me.
• That, Mr. Harris then told me that, because
he was not using me as a witness that the
judge has to read those things to the jury
so that they can’t hold anything against me
or bring up anything about me not taking
the stand, and that Mr. Harris at that point
still did not explain to me that I had a right
to testify or that the choice of whether to
testify was solely mine[] to make and not
his.
• That, prior to Mr. Harris telling me that he
was not going to put me on the stand, I
was under the impression that I would get

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to tell my side of what happened.
• That, I would have taken the stand to
testify on my own behalf to explain my
side of what really happened if I was
allowed to do so.
(App. 87a-b.) In sum, Palmer argued that his trial counsel
never took the time to explain to him that the choice of whether
or not he would testify was for Palmer, not Harris, to make.
Palmer also argued that the trial record was inconclusive as to
whether Harris ever conveyed this information and that the jury
charge colloquy revealed little about whether Palmer understood
his right to testify. Accordingly, Palmer requested an
evidentiary hearing to subpoena Harris and develop the factual
record. Notably, Palmer did not set forth the facts to which he
would have testified had he taken the stand at his trial.
The post-conviction relief (“PCR”) court rejected
Palmer’s petition without granting an evidentiary hearing.
Emphasizing the colloquy between the court and defense
counsel at the close of the State’s case, the PCR court found that
Palmer and his attorney had been afforded the opportunity for
Harris to counsel Palmer as to whether or not to testify.
Additionally, relying upon the colloquy between the court,
defense counsel, and Palmer just prior to the jury charge, the
PCR court found that Palmer understood that he had a choice
regarding whether to testify:
Then we get to what transpires with respect to the
charge. And Mr. Harris says, “Your Honor, I’d
like to have you read the defendant’s election not
to testify charge to my client so that we can make

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a decision on that.” So we’re talking about
defendant’s election not to testify, the defendant’s
right not to testify. Implicit in that is a right to
testify. And the charge that was read to him was
this: “The defendant in this case chose not to be a
witness.” First line in the charge. If you choose
not to be a witness, you can also choose to be a
witness. So by the charge itself, which was read
to the defendant, the defendant was told by me
with respect to his choices. He chose not to be;
implicit in that is a choosing to be. And the last
sentence of the charge . . . reads that, “The
defendant is entitled to have the jury consider all
of the evidence and he is entitled to the
presumption of innocence even if he does not
testify as a witness.” Implicit in that as well is the
fact that he can testify as a witness. To say that
he was never told that he could be a witness, I
think is belied by the transcript in this particular
case.
(App. 47-49.) The Appellate Division upheld this decision
“for substantially the same reasons,” but also took note of the
“pauses in the proceedings for discussions between trial counsel
and defendant,” which “belie[] defendant’s contentions that he
was unaware of his right to testify and that he had no
discussions with his attorney about that right.” (App. 32.) The
New Jersey Supreme Court denied certification.
Having exhausted his state court remedies, Palmer filed
a habeas petition pursuant to 28 U.S.C. § 2254 in the District
Court. In his petition, Palmer claimed that his trial counsel had

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been constitutionally ineffective; he likewise asserted a host of
additional issues not relevant to this appeal. The District Court
denied the entirety of his petition. With regard to the issue of
Palmer’s right to testify, the District Court quoted the language
of the PCR court, endorsing the portion of that opinion that
found that Palmer understood his right to testify, and rejected
the petition on the grounds that “the New Jersey Courts’
adjudication of the claims did not result in a decision that was
contrary to, or involved an unreasonable application of
Strickland or other Supreme Court holdings.” (App. 20.) The
Court declined to hold an evidentiary hearing and declined to
issue a certificate of appealability.
Finally, Palmer appealed to this Court. We granted a
certificate of appealability with respect to Palmer’s claims that
his trial counsel rendered ineffective assistance of counsel for
“(1) failing to advise Appellant of his right to testify at trial and
at his suppression hearing and (2) failing to inform Appellant
that the choice whether to testify was ultimately his to make.”
(App. 23.) We also stated that the parties “shall address whether
the District Court should have held an evidentiary hearing to
resolve these claims.” (App. 23.)
II.
The District Court exercised jurisdiction pursuant to 28
U.S.C. § 2254. We have jurisdiction over Palmer’s appeal
under 28 U.S.C. §§ 1291 and 2253.
The Anti-Terrorism and Effective Death Penalty Act of

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The relevant provisions of AEDPA provide:1
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim–
(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).
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1996 (“AEDPA”) “requires federal courts collaterally1
reviewing state proceedings to afford considerable deference to
state courts’ legal and factual determinations.” Lambert v.
Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). Factual
determinations made by the state court are presumed to be
correct, but may be rebutted by clear and convincing evidence.
See Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009) (citing
28 U.S.C. § 2254(e)(1)). Our standard of review is the same as
that of the District Court: because the District Court relied

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exclusively on the state court record and did not hold an
evidentiary hearing, our review is plenary. See id. (citing Jacobs
v. Horn, 395 F.3d 92, 99 (3d Cir. 2005)).
By its own terms, § 2254(d) only applies to claims
already “adjudicated on the merits in State court proceedings.”
Thus, if a properly preserved claim was not addressed by the
state court on the merits, the deferential standards of AEDPA do
not apply. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
In such instances, “the federal habeas court must conduct a de
novo review over pure legal questions and mixed questions of
law and fact, as a court would have done prior to the enactment
of AEDPA.” Id. (citing McCandless v. Vaughn, 172 F.3d 255,
260 (3d Cir. 1999)). “However, § 2254(e)(1) still mandates that
the state court’s factual determinations are presumed correct
unless rebutted by clear and convincing evidence.” Simmons,
581 F.3d at 165 (citing Appel, 250 F.3d at 210).
III.
A.
We address at the outset whether the District Court
abused its discretion when it denied Palmer’s habeas petition
without first convening an evidentiary hearing. We conclude
that because Palmer’s petition does not contain sufficient
“factual allegations, which, if true, would entitle the applicant
to federal habeas relief,” the District Court did not abuse its
discretion in declining Palmer’s request for an evidentiary
hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

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Under section 2254(e)(2),2
[i]f the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that–
(A) the claim relies on–
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1. The Decision Whether to Hold an Evidentiary Hearing is
Subject to the Discretion of the District Court
“Prior to AEDPA, new evidentiary hearings [in habeas
cases] were required in several circumstances.” Campbell v.
Vaughn, 209 F.3d 280, 286 (3d Cir. 2000) (citing Townsend v.
Sain, 372 U.S. 293, 313 (1963)) (emphasis in original). We
have been clear that “AEDPA, in contrast, permits evidentiary
hearings on habeas review, but only in a limited number of
circumstances.” Id. (citing 28 U.S.C. § 2254(e)) (emphasis in
original). In particular, a district court is permitted to hold an
evidentiary hearing on a claim asserted in a § 2254 petition so
long as such a hearing is not barred by 28 U.S.C. § 2254(e)(2).
Under that section, a habeas court is barred from holding an
evidentiary hearing unless the petitioner was diligent in his
attempt to develop a factual basis for his claim in the state court
proceedings, see Williams v. Taylor, 529 U.S. 420, 430 (2000);
Wilson v. Beard, 426 F.3d 653, 665 (3d Cir. 2005), or the
petitioner satisfies the criteria set forth in § 2254(e)(2)(A) and
(B).2

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(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
The Supreme Court has not held, and we do not3
suggest, that a court is precluded from considering additional
factors in determining the appropriateness of an evidentiary
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“In cases where an applicant for federal habeas relief is
not barred from obtaining an evidentiary hearing by 28 U.S.C.
§ 2254(e)(2), the decision to grant such a hearing rests in the
discretion of the district court.” Schriro, 550 U.S. at 468; see
also Campbell, 209 F.3d at 287 (“AEDPA, unlike Townsend
and [Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)], does not
require that such a hearing be held. Instead, federal courts have
discretion to grant a hearing or not.”). Although such a decision
is discretionary, it is not unconstrained, and Schriro identifies
two related considerations that guide the habeas court’s exercise
of discretion.3

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hearing.
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First, in determining whether or not to hold an
evidentiary hearing, courts should “consider whether such a
hearing could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro, 550 U.S. at 474. In other words, courts
considering the appropriateness of an evidentiary hearing
should determine whether the petition presents a prima facie
showing which, if proven, would enable the petitioner to prevail
on the merits of the asserted claim. See, e.g., Campbell v.
Burris, 515 F.3d 172, 184 (3d Cir. 2008); Wells v. Petsock, 941
F.2d 253, 259 (3d Cir. 1991); Smith v. Freeman, 892 F.2d 331,
338 (3d Cir. 1989). The reasons underlying such a
consideration are self-evident—given “AEDPA’s
acknowledged purpose of reducing delays in the execution of
state and federal criminal sentences,” Schriro, 550 U.S. at 475
(quotation marks, citations, and brackets omitted), a court
should be reluctant to convene an evidentiary hearing to explore
the claims of a petitioner whose pleadings are factually
insufficient to suggest any entitlement to habeas relief. See,
e.g., Campbell, 515 F.3d at 184 (“bald assertions and
conclusory allegations do not afford a sufficient ground for an
evidentiary hearing”) (quoting Mayberry v. Petsock, 821 F.2d
179, 185 (3d Cir. 1987)); Anderson v. Att’y Gen. of Kansas,
425 F.3d 853, 858-59 (10th Cir. 2005) (to warrant an
evidentiary hearing, a habeas petitioner’s “factual allegations
must be specific and particularized, not general or conclusory”)
(quotation marks and citation omitted).

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As an initial matter, we note that Palmer was diligent4
in his effort to develop the factual basis of his ineffective
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Second, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing.” Schriro, 550
U.S. at 474. That is, even if the factual allegations in the habeas
petition are sufficient to make out a prima facie claim for
habeas relief, a district court may decline to convene an
evidentiary hearing if the factual allegations are “contravened
by the existing record.” Id. (citation omitted); see also
Campbell, 209 F.3d at 290. As the Supreme Court has
explained, “[i]f district courts were required to allow federal
habeas applicants to develop even the most insubstantial factual
allegations in evidentiary hearings, district courts would be
forced to reopen factual disputes that were conclusively
resolved in the state courts.” Schriro, 550 U.S. at 475.
With these twin considerations in mind, we turn to
Palmer’s petition to determine whether the District Court
abused its discretion when it dismissed the petition without first
convening an evidentiary hearing.
2. Palmer’s Inadequate Allegations of Prejudice
Because we find that the factual allegations underlying
Palmer’s contention that his trial counsel was constitutionally
ineffective are insufficient to show that he is “entitle[d] . . . to
federal habeas relief,” id. at 474, we conclude that the District
Court’s decision not to hold an evidentiary hearing was not an
abuse of discretion.4

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assistance claim in the state PCR court, in that he submitted an
affidavit and requested that the state court convene a hearing on
his claim. See Williams, 529 U.S. at 430; see also Thomas v.
Horn, 570 F.3d 105, 125 (3d Cir. 2009) (“the petitioner’s
request for an evidentiary hearing in the state post-conviction
court, which was denied, show[s] sufficient diligence to render
Section 2254(e)(2) inapplicable”) (citing Thomas v. Varner,
428 F.3d 491 (3d Cir.2005)). Section 2254(e)(2) thus would
not have precluded Palmer from obtaining an evidentiary
hearing before the District Court.
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“The Strickland [v. Washington, 466 U.S. 668 (1984)]
standard is applicable when a petitioner claims his attorney was
ineffective by denying him his constitutional right to testify.”
Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009)
(citation omitted). The Strickland test has two prongs: the
petitioner must show (1) that counsel’s performance was
deficient, and (2) that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. The first prong requires
a petitioner to demonstrate that counsel made errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id.; see also Taylor v.
Horn, 504 F.3d 416, 430 (3d Cir. 2007). Strickland’s second
prong requires a petitioner to show that the errors were
“sufficiently serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Strickland, 466 U.S. at 687. The
petitioner “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.

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Palmer’s petition comes up short because it fails to make
an adequate showing of prejudice. See id. at 697 (“[A] court
need not determine whether counsel’s performance was
deficient before examining the prejudice suffered . . . . If it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed.”). As we have noted, Palmer’s
claim for ineffective assistance of counsel turns on his
contention that his attorney failed to advise him of his right to
testify in his defense and failed to inform him that such a
decision was Palmer’s to make. Palmer’s contentions
concerning his attorney’s allegedly deficient conduct are fleshed
out in the affidavit Palmer submitted in support of his habeas
petition. What is not fleshed out in the petition, however, is a
factual basis suggesting that Palmer was prejudiced by his
attorney’s alleged conduct. Palmer’s affidavit states merely that
he “would have taken the stand to testify on [his] own behalf to
explain [his] side of what really happened if [he had been]
allowed to do so.” (App. 87b.) The brief he submitted in
support of his application for post-conviction relief adds
precious little to this bare-bones statement. In a conclusory
fashion, Palmer asserts that “because [he] was contending self-
defense, it was crucial for him to explain his version of the
events, especially[] since the requisite determination that the
jury had to make[] was ‘did the petitioner use force in the
reasonable belief that such force was necessary to prevent his
death or serious injury,[’] and there is nobody who could
explain what his mental state was better than the petitioner . . .
.” (App. 87r.) In sum, we know that Palmer wished to testify,
and we know the legal theory toward which his testimony
would have been directed (self-defense), but we know nothing

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about the facts to which Palmer would have testified.
Palmer’s stated desire to tell his side of the story and his
conclusory invocation of the words “self-defense” are not
sufficient to show “that the decision reached would reasonably
likely have been different absent the errors.” Strickland, 466
U.S. at 696. We have repeatedly emphasized that “bald
assertions and conclusory allegations do not afford a sufficient
ground for an evidentiary hearing” on a habeas petition.
Campbell, 515 F.3d at 184 (citation omitted); Zettlemoyer v.
Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991). Other circuits
have likewise recognized that a habeas petitioner’s nonspecific
or conclusory allegations of ineffective assistance of counsel do
not compel district courts to convene evidentiary hearings in
order to delve into the unelaborated factual basis of a habeas
petition. See, e.g., Anderson, 425 F.3d at 858-59; Barry v.
United States, 528 F.2d 1094, 1102 (7th Cir. 1976). Palmer’s
petition contains no factual matter regarding Strickland’s
prejudice prong, and his reference to the legal theory of self-
defense is precisely the sort of unadorned legal conclusion that,
without supporting factual allegations, we have consistently
found insufficient to warrant an evidentiary hearing. See
Campbell, 515 F.3d at 184; Zettlemoyer, 923 F.2d at 298 n.12;
cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (in
the civil pleading context, “courts are not bound to accept as
true a legal conclusion couched as a factual allegation”)
(quotations and citations omitted).
Zettlemoyer is on point. In that case, the petitioner
contended that an evidentiary hearing was necessary to develop
the facts of his ineffective assistance claim, in which he asserted
that his attorney had failed to call witnesses who would have

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Palmer, as the very witness whose testimony was not5
presented at trial, would certainly have been capable of
outlining in his habeas petition the contours of the testimony he
would have given. This is not, in other words, a case in which
an evidentiary hearing was needed in order to unearth facts
unknown to the petitioner.
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provided unspecified testimony related to his diminished-
capacity defense. See Zettlemoyer, 923 F.2d at 298. As in this
case, the petitioner in Zettlemoyer identified a witness whose
testimony his attorney failed to present and a legal theory
toward which the witness’s testimony would have been
directed, but the petitioner gave no indication of what the
contents of the testimony would have been. See id. We
explained that the petitioner had failed to “set forth facts to
support his contention” and held that an evidentiary hearing was
not called for. Id. at 298, 300-01; see also Campbell, 515 F.3d
at 184 (where petitioner fails “to allege what this witness would
have been able to say that would have been of help to him,” an
evidentiary hearing is not mandated); Wells, 941 F.2d at 259-
60. The same conclusion is compelled here. By stating merely
that he would have “taken the stand to testify on [his] own
behalf to explain [his] side of what really happened,” (App.
87b), and that this testimony would have addressed the subject
of self-defense, Palmer failed to present “factual allegations,
which, if true, would entitle the applicant to federal habeas
relief” under Strickland’s prejudice prong. Schriro, 550 U.S.5
at 474.
In Owens v. United States, 483 F.3d 48, 59 (1st Cir.

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2007), the court recognized that “an attorney’s failure to inform
his client of his right to testify could be prejudicial.” The court
explained that a “defendant’s testimony could be crucial in any
trial, and it could be difficult for us to determine whether or not
a jury would have found his testimony credible.” Id. (citations
omitted). This is particularly true when the only witness the
defendant proffers is himself. The Supreme Court has
recognized that “the most important witness for the defense in
many criminal cases is the defendant himself.” Rock v.
Arkansas, 483 U.S. 44, 52 (1987). After all, if there were no
other witnesses, who would be in a better position to advise the
factfinder as to the relevant facts in support of a claimed
defense?
On the other hand, the mere assertion of self-defense is
not sufficient to raise a plausible showing of prejudice
sufficient to warrant an evidentiary hearing. If so, every
defendant charged with homicide would make such an
assertion. In Owens, the court particularized the needed
showing when it stated that a defendant who was not informed
by counsel or the court of his right to testify and who “would
have offered genuinely exculpatory testimony” would have
been prejudiced by the failure to have been informed of his
right to testify. Owens, 483 F.3d at 59 (emphasis added).
Although the showing that a defendant must make need not be
onerous, it must be sufficiently detailed to be “genuinely
exculpatory.” Id.
In New Jersey, the assertion of self-defense “requires a
jury (1) to discern whether the defendant had a subjective belief
at the time that deadly force was necessary and then (2) to
determine whether that subjective belief was objectively

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reasonable.” State v. Jenewicz, 940 A.2d 269, 274-75 (N.J.
2008); see N.J. Stat. Ann. 2C:3-4. There are several further
caveats to this rule, such as a duty to retreat. See N.J. Stat. Ann.
2C:3-4(b). In this case, it is “undisputed that defendant was the
only person who drew and fired a gun.” (App. 35.) In order to
have been entitled to an evidentiary hearing, Palmer had the
obligation to show his testimony would have been genuinely
exculpatory as long as it was not refuted by the existing record.
See Schriro, 550 U.S. at 474. Palmer did not make any such
showing, and it follows that the Court did not err in denying
Palmer a hearing.
3. There Is No Presumption of Prejudice in Right-to-Testify
Cases
Conceding that “the record is silent about the nature of
Palmer’s probable testimony,” (Appellant’s Br. 22), Palmer
contends that he should be relieved from making any showing
as to Strickland’s prejudice criterion. Although his argument
on this point is somewhat muddled, Palmer appears to suggest
that when counsel fails to properly advise a client concerning
the right to testify, such defective performance by counsel is not
susceptible to analysis under Strickland’s two-prong standard,
but is instead a “structural defect” in the entire trial process that
requires automatic reversal, irrespective of prejudice. See
Neder v. United States, 527 U.S. 1, 7 (1999); see also, e.g.,
United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006);
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991). Because, under this
theory, Palmer was not required to make any showing of
prejudice in order to prevail on his claim, Palmer insists that the
District Court’s failure to hold an evidentiary hearing on his

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Of course, in the collateral review context, even trial-6
type errors are not examined under the harmless-beyond-a-
reasonable-doubt standard employed on direct review, but are
instead reviewed under Brecht’s more deferential standard. See
Brecht, 507 U.S. at 623 (the question is whether the error had
a “substantial and injurious effect or influence in determining
the jury’s verdict”). Structural defects are per se reversible even
in habeas cases. See id. at 629-30.
-23-
petition was an abuse of discretion. We disagree.
As an initial matter, Palmer is certainly correct to note
that “[t]he Supreme Court has distinguished between two types
of constitutional error that occur at both trial and sentencing:
‘trial errors,’ which are subject to constitutional harmless error
analysis, and ‘structural defects,’ which require automatic
reversal or vacatur.” United States v. Stevens, 223 F.3d 239,
244 (3d Cir. 2000) (citing cases); see also United States v.
Vazquez, 271 F.3d 93, 103 (3d Cir. 2001). Certain types of
constitutional error are considered structural, and subject to
automatic reversal, not only because they have the potential to
“infect the entire trial process,” Brecht, 507 U.S. at 630, but
because of “the difficulty of assessing the effect of the error[s].”
Gonzalez-Lopez, 548 U.S. at 148-49 & n.4 (citing cases). That
is, whereas an error of the trial type occurs “during the
presentation of the case to the jury” and “may therefore be
quantitatively assessed in the context of other evidence
presented in order to determine whether its admission was
harmless beyond a reasonable doubt,” Fulminante, 499 U.S. at6
307-08, the effects of a structural defect “are frequently

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In Campbell v. Vaughn, we declined to take a position7
on this issue, as our threshold determination that the attorney’s
performance was not deficient rendered the point moot. 209
F.3d at 281 n.1. As in Campbell, we note here that Palmer
“does not allege that the [State] deprived him of his right to
testify,” id., and we express no opinion on the effect that State
participation in the deprivation would have on our analysis.
-24-
intangible, difficult to prove . . . [or] cannot be ascertained.”
Gonzalez-Lopez, 548 U.S. at 149 n.4 (citations omitted). The
list of errors that constitute structural defects is “very limited,”
Johnson v. United States, 520 U.S. 461, 468 (1997), and
“includes complete denial of counsel, biased judges, racial
discrimination in selection of grand jury, denial of
self-representation at trial, denial of public trial, and [a]
seriously defective reasonable doubt instruction.” Stevens, 223
F.3d at 244 (citing Neder, 527 U.S. at 7-8 (1999)).
We are not persuaded by Palmer’s argument that his
attorney’s alleged failure to advise him of his right to testify
falls within this very limited category of errors that are per se
reversible. First, every authority we are aware of that has
addressed the matter of counsel’s failure to advise a client of the
right to testify has done so under Strickland’s two-prong
framework, which requires the petitioner to “show that [the
deficient conduct] actually had an adverse effect on the
defense.” Strickland, 466 U.S. at 693; see, e.g., Hodge v.7
Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009) (“Hodge’s
speculation that his testimony would have left a favorable
impression with the jury does not demonstrate the required

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Palmer cites Owens v. United States, 483 F.3d 48 (1st8
Cir. 2007), contending that the First Circuit has adopted a per se
prejudice rule. We do not believe that Owens stands for the
proposition for which Palmer cites it. The case plainly
addresses the significance of prejudice in the right-to-testify
context, id. at 59-60, and endorses Brown v. Artuz, 124 F.3d at
80, a Second Circuit case that disposed of a right-to-testify claim
by holding that the petitioner’s affidavit was inadequate to
satisfy Strickland’s prejudice prong.
-25-
prejudice under Strickland.”); Matylinsky, 577 F.3d at 1097
(“The Strickland standard is applicable when a petitioner claims
his attorney was ineffective by denying him his constitutional
right to testify.”) (citing Medley v. Runnels, 506 F.3d 857, 861
(9th Cir. 2007)); Cannon v. Mullin, 383 F.3d 1152, 1171 (10th
Cir. 2004) (same); Sayre v. Anderson, 238 F.3d 631, 635 (5th
Cir. 2001) (“Sayre’s self-serving conclusory statement that his
testimony would have resulted in an acquittal, standing alone,
falls far short of satisfying Strickland’s prejudice element.”);
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (“[A]
criminal defendant’s claim that his trial counsel was
constitutionally ineffective because trial counsel failed to
inform him of his right to testify . . . must satisfy the two-prong
test established in Strickland . . . .”); Brown v. Artuz, 124 F.3d
73, 80 (2d Cir. 1997) (same); United States v. Teague, 953 F.2d
1525, 1534 (11th Cir. 1992) (same).8
Moreover, Strickland itself cannot be read to carve out
a prejudice exception for right-to-testify cases. By its terms,
Strickland applies to all manner of ineffective assistance of

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-26-
counsel claims. See Strickland, 466 U.S. at 684 (“[W]e granted
certiorari to consider the standards by which to judge a
contention that the Constitution requires that a criminal
judgment be overturned because of the actual ineffective
assistance of counsel.”). The Court carefully and expressly
specified only two categories of ineffective assistance claims in
which prejudice may be presumed: cases of “[a]ctual or
constructive denial of the assistance of counsel altogether” and
cases in which “counsel is burdened by an actual conflict of
interest.” Id. at 692. Needless to say, neither category is
applicable here. Apart from these two categories, Strickland
makes clear, “actual ineffectiveness claims alleging a deficiency
in attorney performance are subject to a general requirement
that the defendant affirmatively prove prejudice.” Id. at 693
(emphasis added).
Finally, Palmer’s claim that his attorney failed to advise
him of his right to testify in his own defense is not the sort of
structural defect for which the automatic reversal rule is
reserved. “[M]ost constitutional errors” are of the trial type,
Fulminante, 499 U.S. at 306, and, as the Supreme Court
recently emphasized, the few errors that have been classified as
structural defects have been so categorized because the nature
of the right at issue is such that “the effect of the violation
cannot be ascertained” on review under traditional “harmless-
error standards.” Gonzalez-Lopez, 548 U.S. at 148, 149 n.4
(quoting Vasquez v. Hillery, 474 U.S. 254, 263 (1986)). Hence,
Gonzalez-Lopez explains, the violation of the Sixth
Amendment’s public-trial guarantee is considered a structural
defect “because ‘the benefits of a public trial are frequently
intangible, difficult to prove, or a matter of chance,’” id. at 149

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-27-
n.4 (quoting Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984));
discriminatory practices in jury selection are structural “because
the effect of the violation cannot be ascertained,” id. (quoting
Vasquez, 474 U.S. at 263); and the deprivation of a defendant’s
right to counsel of his or her choosing, the consequences of
which “are necessarily unquantifiable and indeterminate,”
constitutes a structural defect, id. at 149 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 282 (1993)); see also McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since the right of
self-representation is a right that when exercised usually
increases the likelihood of a trial outcome unfavorable to the
defendant, its denial is not amenable to ‘harmless error’
analysis.”).
By contrast, a defendant’s testimony (or lack thereof)
occurs “during the presentation of the case to the jury” and
“may therefore be quantitatively assessed in the context of other
evidence presented . . . .” Fulminante, 499 U.S. at 307-08. In
other words, when a defendant states, “I would have testified to
X, Y, and Z, but my attorney would not put me on the stand,”
the significance of such testimony can be evaluated in the
context of the remainder of the evidence in order to assess the
impact of the constitutional violation; this is precisely the type
of constitutional error that is amenable to conventional review
in the context of the trial and evidence as a whole. See id.;
Gonzalez-Lopez, 548 U.S. at 150. In contrast, when a
defendant is, for example, denied the right to the attorney of his
choice, tried before a biased judge, or denied the right to
represent himself at trial, the impact of the violation defies
harmless error analysis, because any such analysis “would be a
speculative inquiry into what might have occurred in an

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-28-
alternate universe.” Gonzalez-Lopez, 548 U.S. at 150.
Of course, the defendant’s own testimony is very likely
to be highly important—as we noted above, “the most important
witness for the defense in many criminal cases is the defendant
himself,” Rock, 483 U.S. at 52. As the Ninth Circuit has noted,
“[a]s a general matter, it is only the most extraordinary of trials
in which a denial of the defendant’s right to testify can be said
to be harmless beyond a reasonable doubt.” Martinez v. Ylst,
951 F.2d 1153, 1157 (9th Cir. 1991). But it is precisely the fact
that the contours of the defendant’s probable testimony (as
expressed in an affidavit on collateral review) can be assessed
in the context of the evidence as a whole that distinguishes the
right-to-testify issue from structural defects, the effects of which
are inherently elusive, intangible, and not susceptible to
harmless error review. See Gonzalez-Lopez, 548 U.S. at 148,
149 n.4. In the absence of any Supreme Court authority to the
contrary, and in light of the unanimous determination by the
Courts of Appeals that have addressed the issue that
Strickland’s two-prong test applies in right-to-testify cases, we
conclude that Palmer was not excused from making a prima
facie showing of prejudice in his petition for post-conviction
relief. See Strickland, 466 U.S. at 693 (“[A]ctual
ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice”).
In sum, Palmer was required to prove prejudice in order
to prevail on his ineffective assistance claim, id., and factual
allegations of prejudice were thus an essential component to a
prima facie showing of his entitlement to habeas relief.
Because Palmer’s petition contains insufficient factual

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-29-
allegations to demonstrate his entitlement to relief, we conclude
that the District Court did not abuse its discretion in declining
to convene an evidentiary hearing. See, e.g., Campbell, 515
F.3d at 184; Zettlemoyer, 923 F.2d at 300-301.
B.
Our determination that Palmer’s petition fails to present
a prima facie showing of ineffective assistance of counsel and
our decision that the District Court did not abuse its discretion
when it declined to hold an evidentiary hearing are sufficient to
resolve the remaining question raised in this appeal—namely,
whether Palmer’s attorney rendered ineffective assistance of
counsel by failing to advise Palmer of his right to testify and by
failing to inform Palmer that the decision was Palmer’s to make.
In order to prevail on his claim that his attorney rendered
constitutionally deficient assistance, Palmer was required to
establish prejudice by “show[ing] that [the deficient conduct]
actually had an adverse effect on the defense.” Strickland, 466
U.S. at 693. Palmer’s petition is plainly insufficient to make
any such showing, and, as we have explained, his stated desire
to tell his side of the story “falls far short of satisfying
Strickland’s prejudice element.” Sayre, 238 F.3d at 635.
We recognize that because the state courts did not decide
the prejudice issue on the merits, AEDPA’s deferential
standards do not apply to our resolution of the prejudice
question. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In
this case, our review is not circumscribed by a state court
conclusion with respect to prejudice, as neither of the state
courts below reached this prong of the Strickland analysis.”);
see also Appel, 250 F.3d at 210 (AEDPA deference does not

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In light of our conclusion that Palmer was not9
prejudiced by his attorney’s conduct, we do not address the
PCR courts’ factual finding that Palmer was informed of his
right to testify. See Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed.”).
-30-
apply to issue not adjudicated on the merits by the state courts).
Our discussion herein makes clear that Palmer’s petition is
plainly insufficient to demonstrate prejudice under de novo
review. We therefore conclude that the District Court correctly
dismissed Palmer’s petition.9
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.

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