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McNeil v. Cuyler

February 4, 1986

ROBERT A. MCNEIL, APPELLANT
v.
JULIUS T. CUYLER, SUPERINTENDENT STATE CORRECTIONAL INSTITUTION GRATERFORD AND THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, LEROY ZIMMERMAN, ET AL. AND DISTRICT ATTORNEY OF CHESTER COUNTY, C.A. NO. 82-2372



On Appeal from the United States District Court for the Eastern District of Pennsylvania

Author: Adams

Before ADAMS, Acting Chief Judge, HUNTER, Circuit Judge, and STERN, District Judge*fn*

Opinion OF THE COURT

ADAMS, Acting Chief Judge.

In this habeas corpus petition, we must consider whether the district court, in denying a defendant's claim of ineffective assistance of counsel, correctly applied the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We conclude that the court did not properly apply Strickland, but that it nonetheless reached the appropriate result because the alleged errors of counsel did not prejudice the defendant. Accordingly, we will affirm.

I.

The long procedural history of this case begins with the 1974 murder conviction of Robert A. McNeil by a Chester County jury. He was accused of having shot John Walker on January 14, 1972, after a hostile exchange of words in Buddy's Apartment Bar in West Chester, Pennsylvania. The evidence showed that, even before the night of the shooting, there had been ill will between Walker and McNeil. A month earlier, Walter Morris, a mutual acquaintance of the two, was talking with McNeil at the Star Social Club when Walker came up and asked Morris, "What are you doing with him"? App. at 537. When Morris asked why Walker did not like McNeil, Walker replied, "The m thinks he is cute, if I ever catch him f with any of my women, I'm going to kill his black ass." App. at 538. On the night of the shooting, Walker approached McNeil and two female friends as they sat at the bar. Walker put his hands on McNeil's shoulders and, when McNeil asked why, Walker said he wanted to talk to one of the women. McNeil then told Walker "just to leave me alone and don't put [your] hands on me any more because I don't like anybody touching me." App. at 559. He got up and put on his coat. As McNeil rose, Walker apologized several times, putting his hands on McNeil as he did so.

McNeil then drew a gun from his right pocket, and turned around. Walker backup, his hands in the air, still apologizing. The barmaid stepped in between them, apparently to try to stop McNeil from shooting, but then got out of the way. App. at 604. As Walker retreated, McNeil fired several shots in rapid succession, killing Walker and wounding a woman bystander. McNeil then left the bar.

After the jury found McNeil guilty of first degree murder, the trial judge sentenced him to life in prison. Following the denial of his post-trial motions, McNeil, who had been represented at trial by privately retained counsel, filed a direct appeal to the Pennsylvania Supreme Court, with the aid of the Public Defender's office. That court rejected McNeil's claims of errors in the trial court's charge to the jury, because trial counsel had failed to object to the charge. However, the case was remanded for further proceedings to address petitioner's claims of ineffective assistance of counsel. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975).

Represented by still other counsel, McNeil brought an ineffective assistance of counsel claim under the state's Post-Conviction Hearing Act (PCHA), 19 Pa. Cons. Stat. Ann. ยง 1180 et seq. (Purdon 1977). The court denied relief, holding that the ineffectiveness claims had been waived because McNeil had not raised them on direct appeal, and had failed to charge his appellate counsel with ineffective assistance. The ruling was affirmed by the Pennsylvania Supreme Court. Commonwealth v. McNeil, 479 Pa. 382, 388 A.2d 707 (1978).

McNeil then filed a second PCHA petition, this time alleging that all of his prior attorneys had been ineffective. The PCHA court again denied relief. On appeal, a divided Pennsylvania Supreme Court, now considering the merits of the ineffectiveness claims, affirmed the denial. McNeil then filed a petition for habeas corpus in the District Court of the Eastern District of Pennsylvania.

The district court issued a memorandum and order on December 20, 1983, granting the writ. "Viewing the record in its entirety," the district court was "left with the firm conviction that the performance of petitioner's trial counsel fell far short of the quality of representation to which the petitioner was constitutionally entitled." App. at 13-14.

Specifically, the district court faulted trial counsel for failing to inform the jury that Walker, the victim, had previously been convicted of aggravated assault. On the facts of the case, the court reasoned, McNeil could have sought an acquittal based on self defense, or a lesser conviction for voluntary manslaughter, based on a genuine but unreasonable fear for his own life. In either case, evidence of Walker's inclination to violence was critical, and trial counsel's failure to introduce it was "manifestly a serious dereliction." App. at 10. At the PCHA hearing, trial counsel explained his action by stating that since he had introduced witnesses who testified that Walker had a reputation for violence in the community. "I thought that had been covered." App. at 121.

The second error found by the district judge concerned the trial court's charge to the jury. McNeil's counsel did not submit any points for charge, and requested only a "general exception" to the charge as delivered. The trial judge's charge included a long definition of first- and second-degree murder; a charge on the subject of self-defense with stress on the obligation to retreat; and a discussion of that form of voluntary manslaughter based on "heat of passion" and "provocation." However, there was only a brief reference to the theory of voluntary manslaughter based on the defendant's genuine but unreasonable belief that the shooting was necessary in self-defense -- the type of voluntary manslaughter the district court viewed as most plausibly applicable to McNeil's defense.

After deliberating for two hours, the jury requested further instructions, asking for "the legal definition of voluntary manslaughter." In response, the trial judge gave an abbreviated definition of voluntary manslaughter, but omitted reference to manslaughter based on genuine but unreasonable apprehension of danger. McNeil's lawyer did not object, nor did he ask that the charge be supplemented. The net effect of all this, the district court concluded, was to undermine McNeil's case that he had killed Walker in fear, whether reasonable or unreasonable. After the writ of habeas corpus was granted, the Commonwealth appealed to this Court.

A short time after the district court's decision, the Supreme Court decided Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which set out a standard for judging claims of ineffective assistance of counsel under the Sixth Amendment. Upon motion of the Commonwealth, this Court remanded the case to the district court for further proceedings in light of Strickland. On April 3, 1985, the district court issued a new memorandum and order, vacating its previous order "under the compulsion of Strickland " and denying the writ.

In the second order, the district court reaffirmed its previous finding that McNeil's trial counsel had performed deficiently. Along with the actions cited as errors in his 1983 order, the court also noted as error trial counsel's decision to introduce evidence that McNeil had previously been convicted of aggravated battery in the mistaken belief that the then 11-year-old conviction could be used to impeach McNeil's credibility. App. at 755.

Nonetheless, the district court denied the writ because, it held, McNeil had not net his burden for demonstrating prejudice under Strickland. Under that case, "petitioner must shoulder the (virtually impossible) burden of establishing that, if properly presented, his defenses might well have persuaded the jury." App. at 756. The district court continued:

Apparently, therefore, this court is expected to review the trial record and arrive at a conclusion as to whether this particular defendant, in this particular case, might well have achieve a more favorable result at trial if his representation had been constitutionally adequate. In all candor, I find it impossible to express any confident conclusion on that subject. . .

Strickland, supra, to establish the requisite kind of prejudice, i conclude that my inability to reconstruct what might have happened if petitioner had been represented at trial by adequate counsel means that petitioner has not sustained his burden of proof.

Id. McNeil appealed the denial of the writ of habeas corpus to this Court.

II.

A.

In interpreting the Sixth Amendment's guarantee of the right to counsel, the Supreme Court has recognized that "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). Until 1984, however, when it decided Strickland, the Supreme Court had not set out a standard for judging ineffective assistance claims premised upon allegations of ...


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