Shawn Tomlin v. Randall E. Britton, Et Al.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2086
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SHAWN TOMLIN,
Appellant
v.
RANDALL E. BRITTON, ET AL.; THE DISTRICT ATTORNEY
OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-09-cv-00848)
District Judge: Honorable John P. Fullam
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Submitted Under Third Circuit LAR 34.1(a)
September 19, 2011
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Before: AMBRO, CHAGARES, and ROTH, Circuit Judges
(Opinion filed: October 14, 2011)
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OPINION
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AMBRO, Circuit Judge
Shawn Tomlin appeals the dismissal of his petition for a writ of habeas corpus.
The District Court dismissed Tomlin’s petition as untimely but granted him a certificate

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of appealability (“COA”) on whether he was entitled to equitable tolling. The Court
reasoned that, while Tomlin had filed his habeas petition “much too late,” he nonetheless
had a “substantial argument” that the delay was subject to equitable tolling. The Court
also concluded that there was “significant evidence” that Tomlin did not have a
“constitutionally fair trial” when a Philadelphia jury convicted him of murder. Among
other constitutional errors, says the Court, was the trial judge’s refusal to read back (at
the jury’s request) eyewitness testimony describing a perpetrator with physical
characteristics different than those of Tomlin.
Because the District Court erred in granting the COA, we dismiss Tomlin’s appeal
for lack of jurisdiction.1
I.
As we write solely for the parties, we recite only those facts necessary for our
decision. Courtney Gibson was shot and killed in front of his home after an argument
over drug-dealing territory had erupted. An eyewitness, Charles Stover, testified for the
Commonwealth and identified Tomlin as one of three shooters. Another eyewitness,
Winifred Gaines, testified that she saw a large man standing in the street, with his back
turned to her, fire a gun several times toward Gibson’s house. She testified that Tomlin
was not as big as the man she saw. The jury requested during its deliberations that
Gaines’s testimony be re-read, but the trial judge denied the request.
1 The District Court had jurisdiction under 28 U.S.C. § 2254, and we would have
jurisdiction under 28 U.S.C. §§ 1291 and 2253 if the District Court had issued a valid
COA.

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The jury found Tomlin guilty of third-degree murder, conspiracy, carrying a
firearm without a license, and possession of an instrument of a crime. Tomlin was
sentenced to 26 to 52 years in prison.
The Pennsylvania Superior Court affirmed Tomlin’s conviction on October 28,
2002. Tomlin did not seek discretionary review in the Supreme Court of Pennsylvania,
making his conviction final on November 27, 2002.
Almost a year later, on October 28, 2003, Tomlin filed a petition pursuant to
Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The
PCRA court dismissed the petition as “without merit” on March 24, 2005. On appeal to
the Superior Court, Tomlin argued, among other things, that his prior counsel rendered
ineffective assistance for failing to raise and preserve the issue of the trial court’s refusal
to allow a read-back of Gaines’s testimony at the jury’s request. The Superior Court
disagreed and affirmed the dismissal of Tomlin’s petition on November 30, 2007.
Almost a year later, on November 10, 2008, Tomlin filed a petition for leave to
file an out of time petition for allowance of appeal. The Pennsylvania Supreme Court
denied his petition on January 29, 2009.
Tomlin then filed a petition for federal habeas review on February 26, 2009.
Magistrate Judge M. Faith Angell filed a report and recommendation (“R&R”) in which
she concluded that Tomlin’s petition should be dismissed as time-barred, and that no
COA be issued. Tomlin objected and argued, for the first time, that he was entitled to
equitable tolling. The District Court approved and adopted the R&R as to the time-bar
recommendation, but indicated there was probable cause to issue a COA.

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The Commonwealth moved for reconsideration of the grant of the COA, noting
that the Court had not identified what constitutional claims warranted further review.
The Court denied the motion. Tomlin now appeals the District Court’s dismissal of his
petition.2
II.
The issuance of a valid COA is a “jurisdictional prerequisite” to our entertaining
an appeal from a district court’s dismissal of a habeas petition. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a “circuit justice or judge” may issue a COA only if the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c). By enacting § 2253(c), “Congress confirmed the necessity and the
requirement of differential treatment for those appeals deserving of attention from those
that plainly do not.” Miller-El, 537 U.S. at 337. As a result, when a district court denies a
habeas petition on procedural grounds without reaching the petitioner’s underlying
constitutional claims, as the District Court did here, a petitioner must make two showings
to obtain a valid COA: (1) “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right;” and (2) “that jurists of
reason would find it debatable whether the district court was correct in its procedural
2 We exercise plenary review over the District Court’s legal conclusions and apply a
clearly erroneous standard to its factual findings. Lambert v. Blackwell, 134 F.3d 506,
512 (3d Cir. 1997).

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ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).3 By requiring the petitioner to
make a showing of the denial of a constitutional right before the issuance of a COA, the
Slack test spares us from having to decide thorny procedural issues relating to petitions
with underlying claims showing no promise of merit. So, perhaps somewhat
counterintuitively, we must first decide whether Tomlin has made a substantial showing
that he was denied a constitutional right before we can decide whether his habeas petition
is subject to equitable tolling, which would entitle him to full and further consideration of
his constitutional claims.
Upon consideration of Tomlin’s constitutional claims, it appears that the
District Court’s grant of a COA was based on a misreading of his habeas petition.
Tomlin claims that his appellate counsel rendered ineffective assistance by failing
to challenge on direct appeal the trial court’s refusal to read back Gaines’s
testimony. Tomlin does not contend that his trial counsel erred or that the trial
court’s ruling itself violated his constitutional rights. In fact, the record clearly
demonstrates that Tomlin’s trial counsel did in fact object to the trial court’s denial
3 The Supreme Court has not explicitly decided whether 28 U.S.C. § 2254(d)’s
deferential standard of review applies to a preliminary evaluation of a petitioner’s request
for a COA. Under one of two possible interpretations, a habeas petitioner may obtain a
COA if reasonable jurists could debate whether the petitioner’s constitutional rights had
been violated. Under the other approach, a COA may be granted only if reasonable
jurists could debate whether the petitioner might be eligible for habeas relief, i.e., in a
case governed by § 2254(d), whether the state court’s decision on the merits of the
petitioner’s constitutional claim was unreasonable or ran contrary to clearly established
federal law. We decline to decide this issue because, even under the first possibility,
Tomlin has failed to make the necessary showing.

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of the jury’s request.4 Nevertheless, the District Court granted a COA because it
found that Tomlin’s appointed trial counsel acquiesced “without protest or delay”
in the trial court’s refusal to read back Gaines’s testimony — a refusal that
contributed to Tomlin’s “constitutionally inadequate” trial. Furthermore, the
District Court cited no authority in support of the claim that the trial court’s refusal
violated Tomlin’s constitutional rights. In fact, it did not even identify which of
Tomlin’s constitutional rights was supposedly violated.
As for the actual claim presented in Tomlin’s habeas petition — that his
appellate counsel was constitutionally ineffective — Tomlin has failed to make a
substantial showing of the denial of a constitutional right. To prevail on an
ineffective assistance of appellate counsel claim, he must show that his appellate
counsel’s representation fell below an objective standard of reasonableness, and
that there is a reasonable probability that, if counsel had raised the error, his appeal
4 Daniel Greene (Tomlin’s appointed trial counsel) had the following exchange with the
trial court after the jury requested to hear Gaines’s testimony:
Mr. Greene: The only objection that I would have is that if the jury wanted
to hear once again the testimony and direct and cross-examination of
Winifred Gaines[,] I would ask that the Court instruct that the stenographer
read back such testimony to the jury.
The Court: Okay. And that’s denied.
. . .
Mr. Greene: Your Honor please, for the record, please note my exception
on your denial of my request.
The Court: Yes, counsel. Your exception is noted.

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would have turned out differently. United States v. Cross, 308 F.3d 308, 315 (3d
Cir. 2002). Tomlin has made no argument as to why his appellate counsel was
unreasonable for failing to pursue the jury request issue. He has also failed to
show how his appeal would have turned out differently had the issue been raised,
because he does not even suggest why the trial court’s denial of the jury’s request
was an abuse of its discretion. He cites no legal authority at all. In sum, he has
made no showing whatsoever, and certainly not a substantial showing, that his
constitutional right to the effective assistance of appellate counsel was denied.5
Because Tomlin has failed to make the necessary showing, the COA issued
by the District Court is invalid. We cannot reach the question of whether
Tomlin’s petition is entitled to equitable tolling because Tomlin has not made a
substantial showing of the denial of a constitutional right. We therefore lack
jurisdiction over this appeal. It is hereby dismissed.
5 Tomlin also seems to claim that the COA was valid because his appellate counsel failed
to argue that the trial judge was biased. The District Court first raised the issue of the
trial judge’s alleged bias sua sponte in its memorandum and order denying
reconsideration. The grant of the COA cannot rest on this ground either. Tomlin did not
raise this claim in his habeas petition and, therefore, he could not have (and did not)
make a substantial showing to the District Court that it was the basis of a denial of his
constitutional rights. In addition, the procedural default doctrine would clearly bar
review of this claim, because Tomlin did not present it to the Pennsylvania Superior
Court during his PCRA appeal. See 28 U.S.C. § 2254(b)(1)(A).

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