NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1500 _______________

JAVIER ARTACHE, Appellant

v.

SUPERINTENDENT SCI FOREST; ATTORNEY GENERAL PENNSYLVANIA; DISTRICT ATTORNEY PHILADELPHIA _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cv-03753) District Judge: Honorable Nitza I. Quiñones Alejandro _______________

Argued: October 25, 2023

Before: PORTER, FREEMAN, and AMBRO, Circuit Judges

(Filed: December 7, 2023)

Jose L. Ongay [ARGUED] 600 W Germantown Pike, Plymouth Meeting, PA 19462 Counsel for Appellant

Katherine E. Ernst [ARGUED] Philadelphia County Office of District Attorney 3 S Penn Square Philadelphia, PA 19107 Counsel for Appellees Superintendent Forest SCI, Attorney General Pennsylvania, and District Attorney Philadelphia Ronald Eisenberg Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103 Counsel for Appellee Attorney General Pennsylvania

Ethan H. Townsend [ARGUED] McDermott Will & Emery 1007 N Orange Street 10th Floor Wilmington, DE 19801 Court-Appointed Amicus Curiae _______________

OPINION* _______________

PORTER, Circuit Judge.

The District Court denied Javier Artache’s petition for writ of habeas corpus but

issued a certificate of appealability (COA) for the claim that his trial counsel was

ineffective under Strickland v. Washington,

(1984). Because Artache fails

to show that counsel’s alleged error prejudiced him, we will affirm.

I

Artache was convicted of murdering David Delgado, who was shot in the head in

the early hours of September 20, 2006.

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.

2 A

The shooting took place in Philadelphia on the 600 block of 17th Street, a one-way

street heading from north to south. This block is intersected perpendicularly by Wallace

Street (to the north) and Mount Vernon Street (to the south), which both run east-west.

The morning of the shooting, Delgado, Kathy Cerveny, and Anthony Carbonaro

were smoking crack cocaine at a house on Wallace Street, less than one block to the east

of 17th Street. Delgado and Cerveny left this house and walked one block to Artache’s

home on Mount Vernon Street, intending to ask him for money to buy more crack.

According to Cerveny, Delgado and Artache began to argue after they arrived. Artache

went upstairs to his apartment. When he came back downstairs, he told Cerveny to wait

on the porch, and then Artache and Delgado walked along Mount Vernon Street to 17th

Street.

After Artache and Delgado rounded the corner, just out of Cerveny’s sight, she

heard a gunshot. Moments later, Artache ran eastward back toward Cerveny on Mount

Vernon and grabbed a bicycle, exclaiming “they’re after me, they’re after me.” Then he

pedaled westward along Mount Vernon, in the direction of the gunshot. Cerveny found

Delgado with a bullet hole in his head. Soon after, she waved down a police officer to

report the shooting.

B

Artache fled to Puerto Rico after the shooting. The police obtained a warrant for

his arrest but could not locate him in Philadelphia, so they deemed him a fugitive. Almost

two years later, he turned himself in to Puerto Rican authorities upon the advice of his

3 father, a police officer in Puerto Rico. He waived his right to jury trial and was given a

bench trial in the Court of Common Pleas of Philadelphia County.

Cerveny was the prosecution’s key witness. She testified that she did not see

anyone aside from Artache and Delgado on Mount Vernon Street or 17th Street before

she heard the gunshot. And she testified that she did not see or hear any cars driving on

those streets immediately after the gunshot, nor did she see anyone pursuing Artache.

Carbonaro was also a witness for the prosecution. At the time of the shooting, he

was outside of the house on Wallace Street where Delgado and Cerveny had gathered

earlier that morning. From where he was sitting, he could see the intersection between

Wallace Street and 17th Street. He heard the gunshot. Like Cerveny, he testified that he

did not see anyone else on the street before he heard the gunshot. App. 169 (“We were

the only ones out at that time.”). And he testified that he did not see any cars driving on

Wallace Street or 17th Street immediately after the gunshot. Artache’s lawyer pressed

him on cross-examination, suggesting that he “cannot say beyond any doubt that a car

may not have gone down Seventeenth Street.” App. 179. But Carbonaro answered,

“Honestly, I think I can[,]” as “[t]here was nobody else out” at the time.

The defense presented Lindsey Rosenberg, who lived in an apartment on 17th

Street between Wallace Street and Mount Vernon Street. Rosenberg testified that she was

awakened on the morning of the murder by voices outside of her apartment. She then

heard a gunshot. And “roughly ten seconds” after the gunshot, she heard “a car taking off

at a high speed.” App. 192.

4 Relying largely on Rosenberg’s testimony, Artache’s lawyer theorized that

someone other than Artache shot Delgado and then drove away in a car. He described

Rosenberg’s testimony as “the key most important factor in [the] case,” because it alone

“raises a reasonable doubt” regarding Artache’s guilt. App. 203, 204. This was due to the

possibility that “the person or persons in [the] car” that Rosenberg heard “were the doers

in this case.” App. 204. According to his theory, Artache fled to Puerto Rico because he

had just seen a person murdered and believed that the shooters were after him as well.

At closing argument, the prosecutor asked the judge to infer guilt from Artache’s

failure to report the murder, saying, “His father testified, Look, as a cop for 27 years, I

would say you have to come forward and tell them what you know. There’s a reason why

the defendant didn’t say anything about this.” App. 207. Defense counsel immediately

objected: “I object as to what the defendant said or may have said or not said. That’s a

Fifth amendment privilege.” App. 207. The judge instructed the prosecutor to “[k]eep

going.” App. 208.

After closing arguments, the judge explained her decision. She began by revisiting

defense counsel’s Fifth Amendment objection and rebuked the prosecution for

mentioning Artache’s silence:

Let me start first with the fact that the prosecutor’s unintended indirect oblique and not meant at all comment on Mr. Artache’s silence has been ignored by the court. But I know Mr. Zarallo [the prosecutor] would be much more careful with a jury in the box and would have restructured his sentence so it did not appear to be a comment on silence. Mr. Silverstein and Mr. Rivera [defense counsel] are quite comfortable that I have ignored it. It doesn’t impact me in the least.

App. 209.

5 She then began to explain her interpretation of the facts. She credited Cerveny’s

testimony, despite her “drug history and living a less than honorable lifestyle[.]” App.

209. She found that “[e]verything else in this case corroborates . . . Cerveny[,]” including

Carbonaro’s and Rosenberg’s testimonies.

Crucially, she determined that the car

reported by Rosenberg was a “red herring.”

She believed Cerveny, who testified that

she did not see or hear a car on 17th Street after the shooting.

(“[I]f she heard a car on

17th Street, Kathy Cerveny would have told me about it.”). She acknowledged the

possibility that Rosenberg heard a car somewhere in the neighborhood but concluded that

“[t]hat car was not on 17th Street, wherever [it] was.”

She therefore rejected the

defense’s theory that Delgado’s killer fled in the car that Rosenberg heard. “Nothing

moved” on 17th Street other than Artache and Delgado. App. 210.

And she was suspicious of Artache’s choice to flee toward the scene of the crime

and disappear for over a year, saying:

And while it may be reasonable for people to run from gunshots, A, it’s not reasonable to bike back towards where the gunshots were. Which is the undisputed testimony that he biked back towards the scene. And B, you don’t run for two years. You don’t run for two years.

App. 209–10.

But moments later, the judge appeared to refer to Artache’s decision to remain

silent after his arrest: “And even if you did run for some logical reason for two years,

when you get busted, you tell what you know because you’re a witness. You’re a witness.

You’re a witness.” App. 210. This time, Artache’s lawyers did not object.

6 The judge then declared that Artache was guilty of first-degree murder and

sentenced him to life imprisonment without parole. The Court of Common Pleas entered

judgment on April 14, 2010.

C

Artache appealed his conviction. He argued that it was based on insufficient

evidence and against the weight of the evidence because he lacked the requisite intent for

first degree murder.

The trial judge prepared a written opinion in response to Artache’s appeal. She

recounted the facts without referring to Artache’s decision to remain silent after arrest.

Most importantly, she repeated her conclusion that Artache and Delgado were alone on

17th Street at the time of the shooting. See App. 419 n.3 (“It was between 5am and 6am

and no one else was in the area.”); App. 421 (“No one else was on the street at that

time.”). To support her conclusion, she cited to the testimonies of Cerveny, who saw no

one at the intersection of 17th Street and Mount Vernon Street, and Carbonaro, who saw

no one at the intersection 17th Street and Wallace Street.

The Superior Court affirmed the conviction. The Pennsylvania Supreme Court

denied Artache’s petition for allowance of appeal.

D

Artache sought collateral review. He filed a pro se petition in state court under the

Pennsylvania Post Conviction Relief Act (PCRA). Counsel was appointed. Artache

specifically asked PCRA counsel to add a Fifth Amendment claim to his PCRA petition.

He wrote, “it seems like [the trial judge] relied on the fact that I didn’t give any statement

7 to the police to find me guilty,” citing the trial transcript. App. 237. Artache asked his

lawyer whether the comment “constituted a violation of my Fifth Amendment right to

remain silen[c]e?”

PCRA counsel considered the argument, but he did not believe that

there was any merit to the claim, so he did not include the issue in the PCRA petition.

Instead, he amended the petition to request relief based on an unlawful waiver of the right

to a jury trial.

The Court of Common Pleas denied Artache’s petition. The Superior Court

affirmed. And the Pennsylvania Supreme Court denied a petition for allowance of appeal

of the PCRA dismissal.

Artache then sought relief in federal court. Between July and September 2016, he

filed four petitions for a writ of habeas corpus under

. In an amended,

pro se petition filed on September 2, 2016, Artache asserted, for the first time, a claim of

ineffective assistance of trial counsel based on counsel’s “fail[ure] to object to the trial

court’s usage of [his] post-arrest silence to infer consciousness of guilt.” App. 291–92.

On February 7, 2017, Artache submitted a counseled memorandum in support of his

habeas petition claiming that direct appeal and PCRA counsel were ineffective for failing

to assert that the trial court violated his right to remain silent.

The District Court denied Artache’s petition for writ of habeas corpus. But it

granted Artache a COA as to whether he “received ineffective assistance of counsel with

respect to his underlying Fifth Amendment claim.” App. 7 n.2.

Artache appealed and the Commonwealth, confessing error, recommended that we

grant the appeal. Because “[i]t is the uniform practice of [a federal court] to conduct its

8 own examination of the record in all cases where the Federal Government or a State

confesses that a conviction has been erroneously obtained,” Sibron v. New York,

(1968), we appointed Amicus to present counterarguments.1

II2

Artache claims that trial counsel was ineffective for failing to object to the judge’s

reference to his silence. To succeed on this claim, Artache must show both that his

“counsel’s representation fell below an objective standard of reasonableness” and that he

was prejudiced by counsel’s error. Strickland,

. He fails to show the

latter, so we will affirm.3

A

To show prejudice under Strickland, Artache must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

1 Mr. Townsend has ably discharged his assigned responsibilities as amicus curiae. We thank him for his assistance. 2 The District Court had jurisdiction under

and 2254. We have jurisdiction under

and 2253. Because the Fifth Amendment question was not adjudicated on the merits in state court and the District Court did not hold an evidentiary hearing, our review is plenary. Baxter v. Superintendent Coal Twp. SCI,

, 546 (3d Cir. 2021) (“[W]e need not apply the deferential standard of review set forth in [AEDPA].”). But we presume that the state court’s factual findings are correct absent a showing of clear and convincing evidence to the contrary. Appel v. Horn,

(3d Cir. 2001). 3 Because Artache fails to show prejudice, we need not address whether his counsel’s performance was objectively unreasonable. Nor will we address whether (1) Artache forfeited his trial counsel ineffectiveness claim by failing to include it in the counseled memorandum in support of his habeas petition; (2) the COA covers an ineffectiveness claim under the Pennsylvania Constitution, not only the Fifth Amendment; (3) Artache procedurally defaulted the ineffectiveness claim by failing to raise it in PCRA; and (4) the trial judge’s comment violated Artache’s right to remain silent under the Fifth Amendment or the Pennsylvania Constitution.

9 would have been different.” Id. at 694. He need not show that the alleged error “more

likely than not altered the outcome in the case.” Id. at 693. But he must show something

more than “that the errors had some conceivable effect on the outcome of the

proceeding.” Id.

In applying the “reasonable probability” standard, we “must consider the

magnitude of the evidence against the defendant.” Buehl v. Vaughn,

(3d Cir. 1999). After all, “a verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record support.”

Strickland,

. But we may not disturb any of the trial judge’s findings that

were “unaffected by the errors.”

. That is, we are not free to re-weigh the entire

trial record and draw wholly new inferences. Rather, we must identify the trial judge’s

inferences that were not tainted by the alleged error and take those “unaffected findings

as a given.”

. Then, after excising the tainted inferences and findings, we must

“ask if the defendant has met the burden of showing that the decision reached would

reasonably likely have been different.”

B

In this case, most of the inferences drawn by the trial judge were unaffected by the

alleged error. Of these untainted findings, the most important was that “the car

[Rosenberg] heard was not on 17th Street[,]” App. 209, or, more emphatically, that

“[n]o one else was present on the street at the time” of the shooting. App. 425.

The record does not indicate that the judge drew this inference because of

Artache’s silence. Instead, she drew this inference because Cerveny was a credible

10 witness, and her testimony was corroborated by every other witness. Cerveny had a view

of the intersection between Mount Vernon Street and 17th Street. She testified that she

did not see anyone leaving the scene of the shooting aside from Artache. The judge

credited Cerveny’s testimony because she “had no ax to grind with Javier Artache.” App.

209. Thus, even if Rosenberg heard a car speed off after the shooting, the judge

concluded that it did not pass through the intersection of Mount Vernon Street and 17th

Street—if it had, Cerveny “would have told [her].”

And because 17th Street is a

southbound one-way, any car fleeing the scene of the shooting and driving in the proper

direction would have passed through that intersection.

Moreover, the judge concluded that “[n]o one else was on the street” because

Cerveny’s testimony was corroborated by the testimony of other witnesses, including

Anthony Carbonaro. App. 421 (citing to Carbonaro’s testimony). Carbonaro testified that,

at the time of the shooting, he was sitting outside on Wallace Street, with a view of the

intersection of Wallace and 17th Street. The shooting occurred on 17th Street between

Wallace Street and Mount Vernon Street. Thus, if a car sped away from the shooting in

the wrong direction on 17th Street, northbound, it would have passed through the

intersection that Carbonaro could see. But like Cerveny, Carbonaro did not see a car nor

other people leaving the scene of the shooting.

Altogether, if a car fled the scene of the shooting, either Cerveny or Carbonaro

would have seen it. But neither one saw any cars, and the trial judge credited their

testimonies. She found that the “witnesses are absolutely consistent” in testifying that

“[n]o cars moved on 17th Street” after the shooting—indeed, that “[n]othing moved”

11 other than Artache and Delgado. App. 210. In her written opinion, she cited to Cerveny

and Carbonaro’s testimony to support this inference. It was therefore drawn entirely from

witness testimony, not from Artache’s choice to remain silent.

Also unaffected were the judge’s inferences from Artache’s odd behavior after the

shooting. The judge noted that Artache immediately rode his bicycle back toward the

scene of the shooting. Then he suddenly fled to Puerto Rico, staying for nearly two years.

She found that this behavior suggested Artache was the shooter, not a mere eyewitness.

C

After weighing these untainted findings, we conclude that Artache has not

satisfied his burden to show prejudice. As Strickland requires, we weigh these findings

without considering Artache’s silence after his arrest.

Artache’s theory at trial was that the real shooter fled in the car that Rosenberg

heard. But the trial judge rejected this theory. And Artache did not present any other

evidence suggesting the presence of anyone else on 17th Street. The Commonwealth

argues that “there likely was at least once [sic] person around that corner—the drug

dealer the two men were going to buy from.” Appellees’ Reply Br. at 15. But the

Commonwealth did not cite to the trial record for this proposition. Nor could it have.

There was no testimony whatsoever that Artache and Delgado were meeting someone on

17th Street between Mount Vernon Street and Wallace Street. Thus, the possibility that

Artache was a mere witness to the shooting was highly remote, even without considering

Artache’s behavior after the shooting.

12 The remaining untainted findings, including the direction in which Artache

bicycled and his flight to Puerto Rico, make this possibility even more remote. The

Commonwealth suggests that “the direction that Artache fled was not strong evidence of

guilt given Rosenberg’s testimony suggesting that the shooter immediately left the scene

by car.” Appellees’ Br. at 33. But the Commonwealth neglects to credit the judge’s

unaffected finding that no car left 17th Street after the shooting and nobody else was in

the vicinity, which Strickland requires us to accept as true. The direction of Artache’s

bicycle ride—toward the only location where the real shooter could have been—is

therefore inexplicable if Artache was a witness frightened for his own safety. And while

the Commonwealth suggests that the circumstances and duration of Artache’s sudden

flight to Puerto Rico were “equivocal,” we agree with the trial judge that it is more likely

inculpatory. Appellees’ Reply Br. at 16.

Without considering Artache’s silence, therefore, it is not “reasonably likely” that

an objective decisionmaker would acquit him. Strickland,

. Cerveny’s and

Carbonaro’s testimonies, as credited by the judge, establish that no car left 17th Street

after the shooting. And there is no evidence in the record suggesting that anyone else was

on 17th Street, whether in a car or on foot. This makes it highly likely that Artache and

Delgado were the only people outside on 17th Street at the time of the shooting and hence

highly likely that Artache was the shooter. His counterintuitive flight toward the crime

scene and his two-year flight to Puerto Rico only strengthen that conclusion.

13 *****

Accepting the trial judge’s untainted findings as true, Artache cannot show that

trial counsel’s alleged error prejudiced his defense. So we will affirm the District Court’s

denial of Artache’s petition for writ of habeas corpus.

14