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.
The opinion of the court was delivered by: Fuentes, Circuit Judge
Argued September 14, 2009
Before: SLOVITER, FUENTES, and ALDISERT, Circuit Judges.
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 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.
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 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.
(Whereupon the following took place out of the presence of the jury)
HARRIS: We're going to rest, judge.
The next day, before the court charged the jury, the following exchange between the court, defense counsel, and Palmer took place:
HARRIS: Can I have a moment off the record?
HARRIS: Your honor, I'd like to have you read the defendant's election not to testify charge to my client so that ...