NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 19-3146 _______________________

STEPHEN M. HARMER,

Appellant

v.

SUPERINTENDENT FAYETTE SCI; THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA ______________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-18-cv-00175) District Judge: The Honorable Mark A. Kearney __________________________

Submitted under Third Circuit L.A.R. 34.1(a) March 12, 2021

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit Judges

(Filed: August 12, 2021) __________________________

OPINION* __________________________

SMITH, Chief Judge.

Appellant Stephen Harmer petitioned for a writ of habeas corpus, alleging that his

trial counsel labored under a conflict of interest that adversely affected counsel’s

performance. We will affirm the District Court’s denial of habeas relief.

I. BACKGROUND

In August 2012, Cody and Kyle Wunder broke into the home of a Pennsylvania

widower, Douglas Herr, to steal about $200,000 from his safe. Harmer told the brothers

about the cash in the safe, knew the area, drove them to the house, and waited in the

getaway car. The crime turned grisly when Herr, who was armed, confronted the brothers.

Kyle struck Herr with the butt of his shotgun, rendering him unconscious. At some point,

Cody realized that he had been shot, and Kyle, in turn, shot and killed Herr. The brothers

escaped with the cash and were arrested along with Harmer in September 2012. All three

were charged with burglary, robbery, and murder as well as conspiracy to commit the same.

While Kyle was charged with first-degree murder, Cody and Harmer were charged with

second-degree (or felony) murder.

On September 6, 2012, attorney Christopher Lyden was appointed to represent

Cody. Lyden billed for ninety dollars’ worth of legal work on Cody’s case, including 1.5

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. -2- hours of legal research and phone calls. Lyden did not appear in court on behalf of Cody,

nor did Lyden talk to him (by phone or in person). In early October, Cody hired private

counsel but Lyden’s name continued to appear on the criminal docket as Cody’s counsel

of record.

In October, Harmer’s family contacted Lyden about representing him in the case.

Lyden met with Harmer, who went on to hire him to handle the criminal case for a fixed

fee of $15,000. Then, in December 2012, Lyden received a notice copy of the criminal

information under which Cody was charged. Lyden instructed a court official to remove

his name as Cody’s counsel of record.

Both Wunder brothers provided statements about the murder in April 2013 and, in

July, entered into plea agreements with the Commonwealth under which they consented to

life-without-parole sentences. One condition of Cody’s plea was that Kyle, who pleaded

to first-degree murder, be spared the death penalty. Another was that Cody testify

truthfully for the Commonwealth at Harmer’s trial.

Harmer went to trial in August 2013. The defense’s theory of the case was that,

though guilty of the lesser charges, Harmer could not be convicted of felony murder

because Kyle’s shooting of Herr was not in furtherance of the agreed-upon robbery.1

Instead, it was a detour of personal retaliation—committed after the brothers had left the

house with the cash—and purely because Cody had been shot. In the defense’s case in

1 Harmer could only be guilty of second-degree (felony) murder if Kyle committed the murder in furtherance of the robbery. See Commonwealth v. Redline,

(Pa. 1958).

-3- chief, Lyden called Kyle as a witness to establish this factual sequence. After Kyle invoked

the Fifth Amendment, Lyden then played for the jury a recorded post-arrest interview in

which Kyle stated that he had gone back inside the house and killed Herr after he and Cody

had left the house with the money.2

The jury believed Cody. He had testified for the Commonwealth that he told Kyle

to shoot Herr before they left the house to neutralize him as a threat. Lyden cross-examined

his former client Cody briefly, in testimony occupying just five transcript pages. Besides

highlighting how Cody’s plea deal took the death penalty off the table for his brother,

Lyden sought to elicit that Cody was an unreliable narrator of how Herr was killed because

Cody had just been shot, his perception distorted by shock and adrenaline. The jury

ultimately convicted Harmer of second-degree murder as well as the other crimes he did

not contest, and he was thus sentenced to mandatory life without parole.

Lyden handled Harmer’s direct appeal, though Harmer’s family paid an appellate

lawyer $5,000 essentially to look over Lyden’s shoulder. The appellate court affirmed

Harmer’s conviction and mandatory life sentence, and the Pennsylvania Supreme Court

denied review. Harmer then sought relief under the Post-Conviction Relief Act, 42 Pa.

C.S.A. §§ 9541–9546 (“PCRA”). In a counseled petition, he argued that Lyden had been

ineffective in failing to request an accomplice liability instruction for Cody’s testimony

and in not moving to exclude other bad acts evidence, including testimony that Harmer had

2 Kyle apparently also told others in the wake of the murder, “What was I supposed to do? He shot my brother.” JA62. (Citations preceded by “JA” refer to the parties’ Joint Appendix submitted on appeal.) -4- sold and consumed illegal drugs. See Commonwealth v. Harmer, No. 1642 MDA 2016,

, at *1–2 (Pa. Super. Ct. June 16, 2017). The PCRA court dismissed

Harmer’s petition following a hearing, and the appellate court affirmed. See

The

Pennsylvania Supreme Court denied Harmer’s petition for review.

In January 2018, Harmer filed a pro se habeas petition in the Eastern District of

Pennsylvania. Upon retaining counsel, he filed a supplemental petition arguing for the first

time that Lyden had a conflict of interest in representing Harmer after previously

representing Cody in the same case.3 The magistrate judge heard testimony at two

evidentiary hearings, including from Harmer, his PCRA counsel, Lyden, and the lead

prosecutor in Harmer’s criminal case. Lyden testified that, because he never had contact

with Cody, he did not consider Cody to have been his client. Yet at the same time, Lyden

maintained that he disclosed his prior representation of Cody to Harmer before the trial.

The magistrate judge found that Lyden’s testimony on these points was not credible

but recommended denial of habeas relief because there was no evidence that any conflict

adversely affected Lyden’s trial performance. The District Court agreed with the bulk of

the magistrate judge’s Report & Recommendation and denied relief. But the District Court

noted that the magistrate judge, in resolving the question of adverse effect, should have

independently considered whether there was an inherent conflict between plausible trial

strategies that Lyden bypassed and his duties to Cody. It issued a certificate of

3 Given belated discovery of the September 2012 order appointing Lyden to represent Cody, the magistrate judge excused Harmer’s default in not raising the conflict claim in his PCRA petition, citing Martinez v. Ryan,

(2012). -5- appealability, which we later clarified by framing the issue as whether the District Court

erred in its adjudication of Harmer’s Sixth Amendment claim that Lyden labored under a

conflict of interest.4

II. DISCUSSION5

Both sides agree that the standard set out in Cuyler v. Sullivan,

, 349–

50 (1980), and United States v. Gambino,

(3d Cir. 1988), applies

here.6 That standard requires a habeas petitioner to prove that (1) an actual conflict of

interest existed and (2) the conflict adversely affected the adequacy of representation.

Sullivan; 446 U.S. at 349–50; Gambino,

. An actual conflict “is evidenced

if, during the course of the representation, the defendants’ interests diverge with respect to

a material factual or legal issue or to a course of action.” Gambino,

(quotation omitted). And adverse effect turns on whether “some plausible alternative

defense strategy or tactic might have been pursued” that “was inherently in conflict with

or not undertaken due to the attorney’s other loyalties or interests.”

(quotation omitted).

4 We review the District Court’s legal conclusions de novo. Morris v. Beard,

(3d Cir. 2011). We review the District Court’s findings of fact for clear error.

(citation omitted). The PCRA court did not adjudicate the conflict claim on the merits, so the limitations on relief in

(d) do not apply. 5 The District Court had jurisdiction over Harmer’s habeas petition under

. Because the District Court granted a certificate of appealability, we have appellate jurisdiction under

and 2253. 6 We therefore assume without deciding that Sullivan applies in cases of successive representation.

-6- Harmer argues that Lyden’s conflict of interest adversely affected his trial

performance because he bypassed three plausible defense strategies that inherently

conflicted with his duties to former client Cody.7 First, Lyden failed to vigorously pursue

more favorable plea terms for Harmer. Second, he opted not to request an accomplice jury

instruction that would have discounted Cody’s credibility. Third, he decided not to adduce

evidence of Harmer’s non-violent character. But the first was not a plausible strategy. And

the facts show that the second and third neither inherently conflicted with nor were

foregone due to Lyden’s other loyalties.

Harmer first contends that Lyden failed to secure a plea for him because doing so

would have dented Cody’s chances of securing his own deal. A defendant “alleging that

his attorney’s conflict of interest prevented the exploration of plea negotiations” must

“demonstrate that the government was willing to extend, or consider, an invitation to

commence plea negotiations.” Moss v. United States,

(6th Cir. 2003);

accord Holloway v. Arkansas,

(1978). But the prosecutor made clear to

Lyden that the Commonwealth was unwilling to consider any deal for Harmer of less than

life imprisonment without the possibility of parole because Harmer was “the catalyst” for

the robbery, was as culpable as the Wunder brothers due to his role in orchestrating it, and

had given a self-serving counseled statement to law enforcement. JA389-94, JA423.

Undeterred, Harmer argues that Lyden should not have taken that position at face value

7 We assume without deciding that Lyden’s prior representation of Cody created an actual conflict of interest. -7- but, for example, should have gone above the prosecutor’s head to the District Attorney or

offered Harmer as a cooperating witness against the Wunders before they pleaded guilty.8

Yet Lyden testified that he did speak with the prosecutor several times, not just once,

about the prospect of a plea deal for Harmer. Corroborating this, the prosecutor

“confident[ly]” recollected multiple “discussions” with Lyden about resolving the case.

JA400, 423. And Lyden testified, unrebutted, that he floated to Harmer the idea of

providing more information about the case to entice the Commonwealth to reconsider its

stance. Nothing ever came of it. It would be one thing if Lyden had never tried to plea

bargain, particularly if the Commonwealth had been receptive to a plea deal for Harmer.

But the record suggests otherwise. Cf. Burger v. Kemp,

, 785–86 (1987) (“The

notion that the prosecutor would have been receptive to a plea bargain is completely

unsupported in the record.”). More dogged pursuit of a plea deal for Harmer was thus not

“a viable alternative” to going to trial. Gambino,

(quotation omitted).

Harmer next challenges Lyden’s failure to request an instruction under which the

jury would discount Cody’s testimony because, as an accomplice to the crime, he was a

“polluted source.” Appellant’s Br. 42 (quoting Commonwealth v. Chmiel,

(Pa. 1994)). Harmer claims that Lyden’s former client Cody would have viewed any

request for such an instruction as a betrayal. Although requesting that instruction was a

plausible defense strategy,9 the facts belie Harmer’s claim that doing so inherently

8 Harmer did not contemporaneously ask Lyden to pursue further plea talks. 9 Lyden testified at Harmer’s habeas evidentiary hearing that he did not request an accomplice instruction because it did not directly relate to his defense theory that the -8- conflicted with Lyden’s duties to Cody. Lyden undermined Cody’s credibility in other

ways. For example, on cross-examination, Lyden sought to adduce Cody’s bias and

untrustworthiness, including by asking him about his plea deal and his lying to police.

Harmer cannot explain why this questioning did not inherently conflict but failing to

request the instruction did. And the same facts defeat any argument that Lyden failed to

request the instruction “due to” his other loyalties or interests. Gambino,

.

Harmer finally claims that Lyden chose not to present evidence of Harmer’s non-

violent character because doing so would have increased the chances of his acquittal of

felony murder, thus jeopardizing Cody’s plea deal. But that argument effectively seeks a

per se rule for successive representations: Any trial strategy conceivably beneficial to a

defendant inherently conflicts with his lawyer’s duties to a former client who, as a

condition of pleading guilty, testified against him. At least on these facts, we decline to

adopt such a rule. Not only was the former representation de minimis, but at trial Lyden

contrasted Cody and Kyle, whom he called “cold-blooded killers,” with Harmer, whom he

argued “did not participate in any way in the decision to kill.” JA63. Evidence at trial also

showed that, when discussing the planned robbery, Harmer expressed a desire that no one

be killed. Given Lyden’s emphasis at trial on Harmer’s non-violent role, Harmer fails to

persuade us that the added step of proving his non-violent character was either inherently

recorded interview of Kyle, the shooter, was more credible than the trial testimony of Cody, who had been shot, about the sequencing of Herr’s murder.

-9- in conflict with or “not undertaken due to [Lyden’s] other loyalties or interests.” See

Gambino,

(quotation omitted).

III. CONCLUSION

For the reasons stated, we will affirm the judgment of the District Court.

-10-