NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 18-1867 ____________

OMAR SAUNDERS, Appellant v.

ADMINISTRATOR NEW JERSEY STATE PRISON; ATTORNEY GENERAL NEW JERSEY

____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-15-cv-02683) District Judge: Honorable Jerome B. Simandle ____________

Submitted under Third Circuit LAR 34.1(a) March 3, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

(Filed: March 4, 2020)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Omar Saunders appeals a District Court order denying his petition for a writ of

habeas corpus under

. He claims his trial counsel was ineffective for

failing to interview and call two witnesses. Because the state courts that first rejected

Saunders’s claim did not apply federal law unreasonably, we will affirm.

I

The New Jersey Superior Court, Appellate Division, determined the following

facts, see State v. Saunders,

, at *1–*4 (N.J. Super. Ct. App. Div. 2008)

(per curiam).1

On May 31, 2002, four men—Omar Saunders, Donnell Jakes, Jose Alvarez, and

Angelo Lopez—rode in Alvarez’s white car from Camden to a club in Philadelphia. At

the club, Jakes suggested Saunders could not hold his liquor, and the two argued. After

leaving, they argued about who should drive. Saunders drove and dropped Lopez off.

Saunders then stopped near the intersection of Pierce and North 26th Streets. He exited

the car and walked to a nearby corner, while Alvarez and Jakes walked to a grassy area to

urinate. Alvarez saw Saunders holding a bottle of Corona beer. A few minutes later,

Saunders ran toward Alvarez and gave him the car keys.

1 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires us to presume these facts are correct because Saunders has not attempted to rebut them by clear and convincing evidence. See

(e)(1).

2 Saunders continued running toward Jakes, hugged him, and then began walking

back toward Alvarez. Suddenly, Saunders turned around, removed a gun from his pocket,

and shot Jakes twice in the head at point-blank range. Jakes fell to his knees, and

Saunders fired one more shot. The shooting occurred somewhere between 3:00 and 3:30

a.m. Saunders ran home, while Alvarez got into his car and circled the area for twenty to

thirty minutes to see if Jakes was getting help. Alvarez later said he avoided the police

because he was on parole. An investigator found a shell casing near Jakes’s body and a

Corona beer bottle across the street. No murder weapon was found.

Later that day, Saunders threatened Alvarez not to talk to anyone about the

homicide. But Alvarez soon reported the homicide to the prosecutor’s office and agreed

to record a phone conversation with Saunders. In that conversation, Alvarez accused

Saunders of “pop[ping] that boy,” but Saunders denied it. Saunders,

, at

*2. Later, Alvarez said, “You wild out on the kid you know what I mean?”

Saunders

replied, “True [indeed] now listen.”

Finally, Alvarez asked Saunders whether he

disposed of the gun, to which Saunders replied, “Hell yeah!”

Throughout the

conversation, Saunders suggested that he and Alvarez meet in person and that they

coordinate their stories.

When investigators talked to Saunders several months later, he blurted out, “I

don’t own a gun now and I’ve never owned a gun.”

. He continued, “Donnell and

3 me . . . had several arguments and we made peace.”

Saunders claimed he left Camden

because Jakes’s family had “kicked [his] door in.”

II

At Saunders’s trial for first-degree murder and related offenses, Alvarez testified

consistent with the facts just described. Lopez testified that when Saunders and Jakes

were arguing, Saunders said to Jakes, “I’m letting you live right now. I’ll kill you.”

. Lopez also said Saunders refused to make peace with Jakes. The State’s other

witnesses included three people who lived near the scene of the shooting. David

Monserrate testified that at about 3:00 a.m., he heard four gunshots, saw Jakes on the

ground, and saw a man matching Saunders’s description running away. Paul Rodriguez

heard three gunshots at about 3:30 a.m. and saw a person drive away in a white car. And

Aida Rodriguez saw the car pass the crime scene three times with its headlights off.

In his defense, Saunders sought to establish an alibi. His father Alphonso Harris

testified that, on the morning of the homicide, Saunders came home around 3:00 a.m. and

ate a snack. Because Saunders was intoxicated, Harris helped Saunders to bed. Harris

also testified that Saunders maintained his innocence in private. But Harris denied that

anyone from Jakes’s family had kicked his door in or otherwise threatened him. Saunders

also suggested that Alvarez killed Jakes. For example, Saunders’s counsel asked Alvarez

whether he had fought with Jakes before the homicide, but Alvarez said no.

4 The jury found Saunders guilty, and the court sentenced him to thirty-five years’

imprisonment, with an 85 percent parole disqualifier. The Appellate Division affirmed,

see

, and the New Jersey Supreme Court denied certification, see State v.

Saunders,

(N.J. 2008) (table).

Saunders sought post-conviction relief (PCR) in state court. He claimed his trial

counsel was ineffective for failing to interview and call his relatives Malcolm Rease and

Stephen Chalk, who would have testified that Alvarez tried to fight Jakes shortly before

the murder.

The PCR court held an evidentiary hearing. Saunders testified that he asked his

counsel to speak with Rease and Chalk about the fight between Alvarez and Jakes, but his

counsel did not do so because Saunders could not pay his full retainer.

Saunders’s counsel testified that he generally hires an investigator to speak with

witnesses to avoid becoming a witness in his own cases. Still, he spoke with Arthur

Rease (Malcolm’s brother), Harris, and Harris’s girlfriend, thinking their testimony

would help establish Saunders’s alibi. He could not recall whether Saunders asked that he

speak with Malcolm Rease or Chalk. But he admitted that, if Saunders did ask, he did not

interview them “because primarily Mr. Saunders didn’t have the ability to pay for an

investigator.” App. 94. He also doubted the Public Defender’s Office would have helped

5 Saunders to pay. In any event, he thought the fight between Alvarez and Jakes was

irrelevant to Saunders’s alibi defense.

The PCR court denied Saunders’s petition. Applying Strickland v. Washington,

(1984), it held Saunders’s counsel performed adequately because he “made

strategic judgments . . . given [his] limited funds” and decided testimony about the fight

was not worth presenting. Supp. App. 47. The court also held that Saunders could not

show prejudice. It credited counsel’s testimony that “much of the information that Rease

and Chalk could provide was merely ‘street chatter.’” Supp. App. 48. It also noted that

neither witness was available for cross-examination at the evidentiary hearing or claimed

to know who murdered Jakes. Finally, it characterized the evidence of Saunders’s guilt as

“overwhelming.” App. 51 n.3.

The Appellate Division affirmed the denial of Saunders’s petition “substantially

for the reasons set forth by [the PCR court].” Saunders,

at *2 (N.J.

Super. Ct. App. Div. 2014). The New Jersey Supreme Court denied certification. State v.

Saunders,

(N.J. 2015) (table).

Saunders petitioned for a writ of habeas corpus under

in the

United States District Court for the District of New Jersey. Saunders v. D’Illio,

(D.N.J. 2018). The District Court denied his petition, finding it “clear that the

PCR court reasonably applied federal law.” See

.

6 We granted Saunders a certificate of appealability to review his ineffectiveness

claim as it relates to Malcolm Rease and Stephen Chalk.

III2

Under AEDPA’s deferential standard of review, we cannot grant Saunders’s

petition unless the state court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of

the United States.”

(d). Put differently, a state prisoner must show that

the state court’s ruling was “so lacking in justification that there was an error well

understood.” Harrington v. Richter,

(2011).

Our review of the record leads us to conclude that the PCR court did not apply

Strickland unreasonably when it held that Saunders could not show prejudice. A

petitioner must show a reasonable probability of a different result but for counsel’s

unprofessional errors. See Strickland,

. The court concluded that even if

the jury had heard from Rease and Chalk, the result of Saunders’s trial probably would

not have changed. Its conclusion was not “lacking in justification.” Harrington,

. It explained that neither Rease nor Chalk could contradict Alvarez’s eyewitness

testimony. It also characterized the evidence of Saunders’s guilt as “overwhelming.” In

2 The District Court had jurisdiction under

and 2254(a). We have jurisdiction under

and 2253(a).

7 particular, the recorded phone call with Alvarez, Saunders’s statements to police, Lopez’s

testimony, the three eyewitness accounts, and Saunders’s flight from Camden all

inculpated Saunders. So the state court’s finding of no Strickland prejudice was not

unreasonable.

* * *

For the reasons stated, we will affirm the District Court’s order denying

Saunders’s petition.

8