
    Bernardo COLES, Appellant v. Louis S. FOLINO; The District Attorney of the County of Berks; The Attorney General of the State of Pa.
    No. 04-2669.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit LAR 34.1(a) Sept. 30, 2005.
    Opinion filed Dec. 19, 2005.
    
      Michael D. Bartko, Pittsburgh, PA, for Appellant.
    Alisa R. Hobart, Office of District Attorney, Reading, PA, for Louis S. Folino; The District Attorney of the County of Berks; The Attorney General of the State of Pa.
    Before ALITO, and AMBRO, Circuit Judges, RESTANI, Chief Judge.
    
      
       Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.
    
   OPINION

AMBRO, Circuit Judge.

Bernardo Coles appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his habeas corpus petition filed pursuant to 28 U.S.C. § 2241. For reasons provided below, we affirm the decision of the District Court.

I. Factual Background and Procedural History

At the close of a jury trial in the Berks County Court of Common Pleas on October 7, 1988, Coles was convicted of robbery, attempted murder, criminal conspiracy, firearms carried without a license, aggravated assault, simple assault, theft, and receiving stolen property. As a result of those convictions, the trial judge sentenced Coles to an aggregate term of seventeen and a half years to thirty-five years incarceration. He timely filed a notice of appeal to the Superior Court of Pennsylvania. Coles then filed a pro se petition for relief under Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. He voluntarily dismissed his PCRA petition as his direct appeal was still pending. The Superior Court of Pennsylvania affirmed the judgment of Coles’ sentence and no further direct appellate review was sought.

Coles then filed an amended PCRA petition. After numerous changes in appointed counsel and multiple addenda and amendments to his PCRA petition for relief, Coles filed a federal habeas petition. The United States District Judge adopted the Magistrate Judge’s Report and Recommendation and dismissed the petition on August 26,1994.

Returning back to Commonwealth courts, on April 18, 2000, and subsequent to several additional changes in counsel and amended pleadings, Coles filed an Amended Revised Post Conviction Petition in the Berks County Court of Common Pleas. Following an evidentiary hearing, it denied that petition. On appeal, the Superior Court of Pennsylvania affirmed that decision and the Supreme Court of Pennsylvania denied Coles’ request for allowance of appeal.

Coles then filed another petition for a writ of habeas corpus in federal district court raising several claims of ineffective assistance of counsel. On May 19, 2004, the District Court entered a Memorandum Opinion and Order denying the relief sought in the petition but granting the issuance of a certificate of appealability as to all issues raised. This appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254 and we exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the District Court ruled on Coles’ habeas petition without conducting an evidentiary hearing, our review of the District Court’s decision is plenary. See Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir.2005) (citing Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002)).

We apply the same standards as the District Court, as mandated by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

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); Jacobs, 395 F.3d at 99; Marshall, 307 F.3d at 50. A federal habeas court must presume that a state court’s findings of fact are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.

A state court decision is contrary to Supreme Court precedent under § 2254(d)(1) where the state court reached a “ ‘conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.’ ” Marshall, 307 F.3d at 51 (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision is an unreasonable application under § 2254(d)(1) if the court “identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court’s precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir.2002) (citing Williams, 529 U.S. at 407,120 S.Ct. 1495).

AEDPA’s deferential standards of review do not apply “unless the federal claim ‘was adjudicated on the merits in State court proceedings’ 28 U.S.C. § 2254(d).” In cases where the AEDPA standards of review do not apply, federal habeas courts apply pre-AEDPA standards of review. Id. Prior to AEDPA, federal habeas courts conducted a de novo review over pure legal questions and mixed questions of law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). In such circumstances, the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing contrary evidence under § 2254(e)(1). Id.

III. Analysis

On appeal, Coles challenges the District Court’s denial of habeas relief on the following claims of ineffective assistance of trial counsel:

(1) Failure to obtain Alexander Ramsey’s statement prior to trial;
(2) Failure to object when Ramsey read his prior statement into the record;
(3) Failure to object when the prosecution allegedly “vouched” for Ramsey’s credibility;
(4) Failure to object to or move for a mistrial based upon the prosecution’s reference to Coles’ incarceration;
(5) Failure to disclose a potential conflict of interest and secure Coles’ waiver of that conflict; and
(6) Failure to call Joseph Clayton Harris Lightfoot as a defense witness.

Ordinarily, to prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness,” with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688, 104 S.Ct. 2052. Second, if counsel was deficient, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Thus, under Strickland, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Id. at 692, 104 S.Ct. 2052.

Under Pennsylvania law,
[t]here are three elements to a valid claim of ineffective assistance. [Commonwealth courts] inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, [the court] ask[s] whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, [the] inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 318 (1988). To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 974 (1987). Moreover, there is a presumption that counsel acted effectively and the burden is on the defendant to demonstrate otherwise. Id.

In this case, the trial court held, and the Superior Court affirmed, that Coles failed to establish a claim under Pennsylvania’s standard for ineffective assistance of counsel. Applying the federal Strickland standard to the PCRA factual determinations, the District Court reached the same conclusion. Our review of the record convinces us that Coles has failed to establish either that the performance of trial counsel was deficient or that he suffered any prejudice.

Coles alleges that trial counsel was ineffective for (1) failing to object to the prosecution calling Alexander Ramsey as a witness and (2) allowing the introduction of Ramsey’s written statement because the Commonwealth had not disclosed to defense counsel prior to trial that Ramsey was a potential witness. The PCRA court held that any objection would have been meritless because the Commonwealth was not required under the discovery rules to provide either the names of witnesses who were not eyewitnesses to the crime or statements given by individuals who were not eyewitnesses. See Pa. R.Crim. P. 305(B)(1) & (2); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167, 1180 (1986) (holding that defendants are not entitled to statements of prosecution witnesses in advance of trial where witnesses were not eyewitnesses). It is undisputed that Ramsey was a jailhouse informant, not an eyewitness. Thus, the prosecution was under no obligation to disclose that it planned to call Ramsey. Moreover, while it is impermissible to use a written statement to substantiate a witness’s trial testimony, Commonwealth v. Swint, 488 Pa. 279, 412 A.2d 507, 511-12 (1980), Ramsey simply could have recounted the information he provided the trooper who took his written statement, effectively admitting the same information contained in that statement. Alternatively, if he had trouble recalling the information in his statement, it could have been used to refresh his recollection. Commonwealth v. Kendig, 215 Pa.Super. 139, 257 A.2d 354, 355-56 (1969). Therefore, nothing suggests that Coles was prejudiced by defense counsel’s failure to object to Ramsey’s appearance or the admissibility of the contents of his written statement.

Mr. Coles also asserts that trial counsel was ineffective for failing to object or move for a mistrial when the prosecution asked Ramsey questions in an attempt to bolster his trustworthiness and for failing to object when the Commonwealth allegedly improperly “vouched” for Ramsey during closing argument. These contentions are unpersuasive. The prosecution is entitled to rehabilitate a witness following defense counsel’s attack on that witnesses’s credibility on cross-examination. Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749, 754-56 (1987) (holding Commonwealth may introduce polygraph results to rehabilitate a witness subsequent to defense counsel’s credibility attack). The record establishes that it was only after defense counsel cross-examined Ramsey regarding his bail status that the prosecutor attempted to rehabilitate him on redirect. Moreover, it is permissible for a prosecutor to comment on a witness’s credibility during closing argument so long as no personal opinions are expressed. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233, 235 (1983). Accordingly, any objection raised by defense counsel during Ramsey’s redirect testimony or during the prosecution’s closing argument on the basis that the prosecution was impermissibly “vouching” for Ramsey would have been overruled.

Coles next contends trial counsel was ineffective for failing to object or move for a mistrial when several references were made during his trial proceedings regarding the fact that he was incarcerated. This is because the admission of testimony that details (or from which the jury could reasonably infer) past criminal conduct on the part of the defendant is reversible error. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835, 838 (1978). However, where the defendant’s confinement is the result of the case on trial, such references are not improper. Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998). The record makes clear that all references made during trial regarding Coles’ jail time concerned his incarceration for the current case as opposed to confinement for some prior criminal activity. Thus, those references were not improper and defense counsel was not ineffective for failing to object to them during the course of the trial proceedings.

Coles further argues that trial counsel was ineffective by failing to disclose that he was representing Ramsey at the same time he was representing Coles and/or by failing to seek and obtain the informed consent of Coles regarding the dual representation and/or by failing to withdraw from representation. Trial counsel entered his appearance for Coles on May 2, 1988. He had previously entered his appearance for Commonwealth witness Ramsey on April 8, 1988 and withdrew on July 12, 1988 when another attorney entered an appearance on Ramsey’s behalf. Therefore, it is accurate that trial counsel represented both Coles and Ramsey for a brief period of time. It is also undisputed, however, that trial counsel did not represent Ramsey on October 6-7, 1988, when he cross-examined Ramsey. Moreover, trial counsel was unaware that Ramsey would eventually be called to testify against Coles at the time of dual representation because the prosecution never disclosed to defense counsel that Ramsey would be called prior to Coles’ trial. Thus, Coles has failed to establish any live conflict of interest.

As acknowledged by the Pennsylvania courts in this matter, Rule 1.9 of the Rules of Professional Conduct requires counsel to refrain from using information from a former client to assist a current client to the former client’s advantage. Here, however, no information gathered during trial counsel’s representation was used on cross-examination. Thus, Rule 1.9 was not violated. Indeed, had trial counsel used information gathered during his representation of Ramsey during cross, such a violation of Rule 1.9 necessarily would have worked to Coles’ advantage because at the time trial counsel was attempting to discredit Ramsey. For these reasons, Coles cannot demonstrate that the outcome of the proceedings would have been different but for trial counsel’s brief period of dual representation. Thus, the District Court properly denied habeas relief on this issue.

Coles’ final argument is that trial counsel provided ineffective assistance by calling Lightfoot as a defense witness in light of the fact that his testimony incriminated Coles. At trial, Lightfoot testified that he is Coles’ half-brother and that, on the night of the crime, he overheard Coles telling Wendall Saunders, “you should not have shot that man.” Lightfoot thus presented testimony that Saunders — not Coles — was the individual responsible for the attempted murder of the victim at the crime scene. Coles’ theory of the case was that he did not commit, but rather Saunders committed, the crimes of which Coles was accused. Moreover, although Light-foot’s testimony indicated to the jury that Coles was present when the victim was shot, this evidence had already been presented to the jury by the victim. Because defense counsel had a reasonable basis for calling Lightfoot (that is, to establish that Saunders was the triggerman) and any inculpatory testimony provided by Light-foot’s testimony was already admitted by the victim, there is no evidence to support Coles’ theory that the testimony of Light-foot prejudiced him.

^ ^ ^

For the reasons provided above, Coles has failed to establish that he is entitled to federal habeas relief. Accordingly, the District Court’s denial of his habeas petition is affirmed. 
      
      . As contended by the Commonwealth, Ramsey’s written statement would have been admissible under several other scenarios as well. For instance, if Ramsey could not recall making the statement at all, it could be admitted as evidence under the "past recollection recorded” exception to the hearsay rule. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). Alternatively, the statement could have been admitted on redirect examination in an effort to rehabilitate Ramsey because trial counsel attacked his veracity during cross-examination. Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999).
     
      
      . Coles also maintains that he is entitled to habeas relief because the Commonwealth courts’ inordinate delay in deciding his PCRA petition was a violation of procedural due process. Coles, however, failed to raise his due process claim in the District Court. Indeed, this issue first appeared in Coles' pro se response to the Commonwealth’s answer, effectively denying the Commonwealth any opportunity to review the claim. The issue has not been decided by the District Court and was not included in the certificate of appealability. As we have made clear on many occasions, when a petitioner fails to raise a claim before the District Court, that issue is deemed waived and we will not address it. See, e.g., Carpenter v. Vaughn, 296 F.3d 138, 148 (3d Cir.2002).
     