Monday, February 01, 2010

Court Upholds Denial of IA Claim: No Evidentiary Hearing was Necessary and Petitioner Failed to Show Prejudice

In Palmer v. Hendricks, No. 06-2991 (3rd Cir. Jan. 26, 2010), the Third Circuit affirms the district court’s denial of habeas relief on Palmer’s claim that his trial counsel was ineffective for failing to advise him of his right to testify. Petitioner failed to show prejudice resulting from counsel’s failure to advise him of his right to testify, where petitioner’s factual proffer regarding this ineffectiveness claim did not include a proffer of his testimony, had he received proper advice and chosen to testify.

The Circuit also affirmed the District Court’s denial of an evidentiary hearing on this claim. Palmer raised this claim in state post-conviction proceedings, and the state court held that, based on the record, Palmer had been informed sufficiently during trial of his right to testify. The state court based this on the transcript, which showed one time trial counsel requested and received time to consult with his client, and also showed that the judge read to Palmer, and later to the jury, the instruction on a criminal defendant’s election not to testify. The state court reasoned that if Palmer understood the choice not to testify, he understood that he had the choice to testify.

This opinion is most notable for Section III.A.1, a lengthy discussion of evidentiary hearings in federal habeas. The Third Circuit restates the standard for an evidentiary hearing in federal court, although it finds that Palmer was not improperly denied such a hearing:

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).

The longer discussion of Landrigan, however, includes what the opinion describes as a "consideration" for a District Court to make when deciding whether to hold an evidentiary hearing: "‘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." This is only the second time the Third Circuit has relied upon that language; the first time was in Taylor v. Horn, 504 F.3d 416 (3d Cir. 2007), another Fuentes opinion.
Two additional things stand out in this section: first, the opinion ignores the previous week’s decision in Wood v. Allen, 558 U.S. ___ , No. 08-9156 (Jan. 20, 2010), which of course was not decided under § 2254(e)(2). Second, in footnote four, the court states that Palmer was diligent in developing his claim in state court, and affirms that the "failure to develop" language in 2254(e)(2) is defeated where a petitioner makes a factual proffer (in this case, via affidavit) and requests an evidentiary hearing.

In III.A.2, the opinion addresses the prejudice prong – somewhat ignoring the state court’s analysis of the deficient performance prong. "Notably, Palmer did not set forth the facts to which he would have testified had he taken the stand at his trial." Slip op., 8. Without such a proffer, the court holds, he cannot show prejudice. In III.A.3, the opinion notes that structural error does not arise from counsel’s failure to advise a defendant of the right to testify.
Submitted by Maria Pulzetti

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