NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 10-1518 _____________ NAREE ABDULLAH, Appellant, v. WARDEN SCI DALLAS; ATTORNEY GENERAL, COMMONWEALTH OF PENNSYLVANIA; DISTRICT ATTORNEY PHILADELPHIA COUNTY _______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 06-cv-3885) District Judge: Hon. J. William Ditter _______________ Argued November 9, 2011 Before: SCIRICA, SMITH, and JORDAN, Circuit Judges. (Filed : August 14, 2012) _______________ OPINION OF THE COURT _______________ JORDAN, Circuit Judge. Naree Abdullah, who was convicted of second-degree murder, criminal conspiracy, and three counts of robbery in the Philadelphia Court of Common Pleas, seeks habeas relief on the grounds that: (1) admission of the redacted statements of two of his co-defendants, who did not testify at trial, violated his right under the Sixth Amendment of the United States Constitution to confront the witnesses against him; (2) prosecutorial misconduct during closing argument, considered in conjunction with the admission of the redacted confessions of his co-defendants, also violated his right to confrontation; and (3) prosecutorial misconduct during closing argument, standing alone, violated his right to due process. For the following reasons, we will affirm the District Court‟s denial of Abdullah‟s habeas petition. I. Background A. The Robbery And Murder At Lilly’s Market On December 11, 1993, Abdullah, along with Jermaine Trice, Gregory Womack, Julius Jenkins, and Atil Finney drove from the Germantown area of Philadelphia to north Philadelphia in a station wagon. During the trip, they picked up Demond Jackson, who had asked Trice for a ride. When they arrived, they stopped at 33rd and Cumberland Streets, around the corner from a convenience store called Lilly‟s Market. Abdullah, Trice, Jenkins, and Finney then left the station wagon and entered Lilly‟s Market, intending to rob it. At some point during the robbery, Jenkins shot the store owner, a gentleman named Francisco Azcona, causing him to bleed to death. After the shooting, Abdullah, 2 Trice, Jenkins, and Finney fled the market and returned to the station wagon, carrying the store‟s cash register. The four men, along with Womack and Jackson, then drove to Abdullah‟s home, where they divided the proceeds of the robbery.1 Several days later, Police Officer Mitchell McKeever observed Jenkins approach a check cashing agency, carrying a gun, and accompanied by Womack, Trice, and Abdullah.2 McKeever later arrested Jenkins, who was still in possession of the same .45 caliber pistol used to murder Azcona. The police also took Womack and Finney into custody and, under interrogation, both men confessed their involvement in the Lilly‟s Market robbery and murder and their sharing of the proceeds from the robbery. Among other things, Womack said that he drove the conspirators to Lilly‟s Market, and Finney said that he entered the store with Jenkins and Abdullah. Abdullah was arrested and charged with criminal conspiracy, murder, and robbery. The Commonwealth of Pennsylvania successfully moved, pursuant to Pennsylvania Rule of Criminal Procedure 1127, to try Finney, Abdullah, Trice, Jenkins, and Womack together. Abdullah moved to sever his trial from Jenkins‟s trial but that motion was denied. The joint trial of the five defendants commenced on February 25, 1996. 1 Jackson, who was not a defendant in the prosecution for the Lilly‟s Market robbery and Azcona murder, testified that he refused to take a share of the proceeds. 2 McKeever observed the men entering the Ace Check Cashing Agency with a .45 revolver and exiting the store two to three minutes later and getting into a station wagon. In Abdullah‟s trial for the robbery and murder at Lilly‟s Market, the presiding judge allowed the prosecution to present evidence of what turned out to be a robbery at the Ace Check Cashing Agency on December 14, for the limited purpose of proving that the defendants knew each other and had access to the firearm used to murder Azcona. 3 At trial, the prosecution introduced testimony from three eye-witnesses to the crime. First, Jackson testified that, on December 11, 1993, he was present in the station wagon with all of the Defendants when they drove from Germantown to Philadelphia; that he observed Abdullah enter Lilly‟s Market with Finney, Trice, and Jenkins; and that, after the four men returned to the station wagon with the cash register, they all went to Abdullah‟s residence, where the proceeds of the robbery were divided. Azcona‟s wife testified that three or four men entered her husband‟s store on the night of December 11, 1993 and that one of the men shot her husband. Finally, a man named Roach testified that he saw four men in the vicinity of Lilly‟s Market when the robbery occurred, that one man was carrying a cash register, and that another man was carrying a revolver. Detective Michael Gross of the Philadelphia Police Department testified that he took a statement from Finney on March 3, 1995. Finney did not testify but Detective Gross read into evidence the following passage from a version of Finney‟s statement modified by redacting personal names and replacing them with references to “guys” and “someone”: [Question]: Would you go on in your own words and tell us what happened the night Francisco Azcona was killed? [Answer]: We were riding around in this, this guy‟s car, me and three other guys were in … north Philadelphia. … when one said let‟s get paid. Everyone said okay and we saw this store. So me and two guys went in the store. When we got inside two guys stayed up front and I stayed to the back. One guy had his gun on the guy and was at the cash register. … [g]etting the money. But it wouldn‟t [open]. I heard a shot and looked over. Blood was coming out of the guy‟s mouth. After that someone grabbed the register and we all ran out. [Question]: Where did you go? 4 [Answer]: We ran to the car and went back up [to] Germantown. We went to someone‟s house. It‟s an apartment. And two guys got screwdrivers and opened up the register. … [Answer]: We split [the stolen money] up even. (Supp. App. at 307 (emphasis added).) After Detective Gross read from Finney‟s statement, the Court gave the jury a limiting instruction telling them to consider the statement only against the individual who made it.3 Detective Joseph Walsh, another Philadelphia police officer, testified that he took a statement from Womack on March 7, 1995. Womack also did not testify at the trial, but Detective Walsh read into evidence the following portion of Womack‟s statement, which, like Finney‟s, had been redacted: [Question]: Do you know who shot and killed Francisco Azcona? [Answer]: Yes. [Question]: What is his last name and where does he live? 3 The Court instructed the jury as follows: Members of the Jury, there is a rule of evidence that we discussed in chambers, now I‟ll tell you about it. The rule is that where a statement is offered at a trial concerning an alleged crime that was committed, any statement made before a trial may be considered as evidence against only as against [sic] the defendant or the person who made that statement. Thus[,] you may consider the statement as evidence only against the person who made the statement if you believe that he made a statement voluntarily. You must not consider a statement as evidence against any other defendant. You must not use the statement in any other way against any other party in the case. (App. at 179.) 5 [Answer]: His name is blank. He used to live on top of the bar. … [Question]: I want you to go on in your own words and tell me what you know about the murder of Francisco Azcona, that occurred on December the 11th, 1993. [Answer]: It was me and another guy. We were in the car, the other three went in the store. The car was around the corner and then they came out of the store carrying a cash register. As we pulled off the shooter said he shot the guy. I think someone asked him why did he shoot the guy? He didn‟t answer him. Then we drove up our neighborhood. Then we drove to someone‟s and we opened the register and got the money and we took the register and dumped it in a trash dumpster in a townhouse. [Question]: Do you know someone‟s real name and where he lives? [Answer]: I don‟t know his real name. He lives somewhere on blank. [Question]: Do you know someone else‟s real name and where he lives? [Answer]: We call him blank. I don‟t know where he lives. Somewhere up dog down. [Question]: What is someone else‟s real name and where does he live? [Answer]: I don‟t know his real name --” (Id. at 335-36.) The trial court did not provide a limiting instruction at that point, as it had after the reading from Finney‟s statement. It did, however, later give another instruction to the jury on the proper use of redacted confessions by non-testifying witnesses. During closing argument, the prosecution referred to Womack‟s and Finney‟s redacted confessions: 6 [Prosecutor]: Now, you know also by another piece of evidence that there has been an agreement, that there was going to be a robbery, because what Atil Finney says in his statement is he agreed with the others to get paid. When he was in that car with the other people. He agreed to get paid. That‟s another piece of evidence that the group had planned to in fact commit this robbery … . … [Prosecutor]: So that‟s the first piece of evidence that they had that they undertook the robbery, and remember, that in Womack -- in Defendant Womack‟s statement he in fact said they go over to the grocery store. (App. at 199-201.) Abdullah‟s attorney then objected, claiming that the prosecutor pointed and otherwise gestured towards Abdullah and the other defendants when she referred to Womack‟s and Finney‟s redacted confessions. The trial judge immediately held a sidebar conference, at which counsel for Abdullah and the other defendants argued that, by gesturing towards them, the prosecution effectively undid the redactions by indicating who was being referred to in the confessions.4 When the sidebar concluded, the trial judge gave the following instruction to the jury: The United States Constitution says that anybody accused of a crime has a right to confront his accuser. That means when somebody gives a statement out of court, not under oath, not subject to cross examination, that statement is usable only against the person who made it, nobody else. So whatever evidence you think you have heard, understand that is the principle of law that must guide you that a statement is given by a person that is only usable against that person if in fact it was a voluntary, free- willed statement, which I‟ll explain to you later. (Id. at 204.) 4 Counsel for Jenkins and Trice moved for a new trial. However, the trial court denied their motions. 7 On May 13, 1996, the jury found Abdullah guilty of robbery, second degree murder, and criminal conspiracy. The trial judge sentenced him to life imprisonment for the second degree murder conviction, and a five to ten year term of imprisonment for the robbery conviction.5 B. Procedural History 1. The State Court Proceedings On June 12, 1996, Abdullah appealed the verdict and sentence, but his appeal was dismissed because he failed to file an appellate brief. Abdullah later filed a petition for relief under Pennsylvania‟s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46, seeking to reinstate his right to file a direct appeal, which was granted nunc pro tunc. In his direct appeal, Abdullah argued, inter alia, that the trial court erred by allowing the detectives to read the portions of Womack‟s and Finney‟s redacted confessions, and that the prosecutor committed misconduct by gesturing towards him and his co-defendants while arguing that the confessions confirmed their involvement in the robbery and murder. On June 12, 2001, the Superior Court affirmed Abdullah‟s conviction and sentence. With respect to Abdullah‟s argument that the reading of the redacted confessions violated his right to confrontation, the Court noted that the incriminating effect of the confessions was “significantly limited” because “there were five co-defendants,” thereby making “a direct inference difficult, if not impossible.” 5 Abdullah apparently received no additional penalty for the criminal conspiracy charge. 8 (Supp. App. at 660.) The Superior Court also highlighted the fact that the trial court “gave proper instructions as to the limited admissibility of the statement[s].” (Id.) With regard to Abdullah‟s argument that the prosecutor committed misconduct by gesturing towards him during her closing argument, the Superior Court stated: We do not find misconduct in this case, pursuant to the same reasoning set forth in the above argument regarding … the redacted statements. Moreover, any alleged harm was alleviated by the cautionary instructions given by the trial court on both the nature of closing arguments and the use of the co-defendants‟ statements. It is presumed that the jury followed these instructions. (Id. at 665.) On June 26, 2001, Abdullah petitioned for allocatur, and, on January 9, 2002, the Pennsylvania Supreme Court denied that petition. On July 18, 2002, Abdullah filed a pro se PCRA petition, claiming ineffective assistance of counsel. The PCRA Court dismissed that petition, as later amended,6 and the Pennsylvania Superior Court affirmed. On December 21, 2005, the Pennsylvania Supreme Court denied Abdullah‟s petition for review. 2. The Federal Habeas Proceedings On August 31, 2006, Abdullah filed a habeas petition in the United States District Court for the Eastern District of Pennsylvania. He alleged, inter alia, that: (1) the trial judge erred in admitting portions of Womack‟s and Finney‟s redacted confessions 6 On April 11, 2003, Abdullah filed an amended PCRA petition which sought to introduce two affidavits by Jackson, recanting his trial testimony. On March 12, 2004, the trial court held a hearing on the Commonwealth‟s motion to dismiss Abdullah‟s amended petition. After hearing the parties‟ arguments, the trial court found that Jackson‟s recantation testimony was incredible and granted the Commonwealth‟s motion to dismiss. 9 because the confessions “were not redacted to eliminate all references to Naree Abdullah” (App. at 58); and (2) “assuming … that the statements were properly redacted, the prosecutor‟s closing argument nullified the redaction[s] by informing the jury that the confessions of [Finney and Womack] corroborated the theory that the robbery homicide was committed [by Abdullah],” (id. at 59.) A Magistrate Judge reviewed the petition and issued a Report and Recommendation concluding that the District Court should deny Abdullah‟s petition without a hearing.7 7 In rejecting Abdullah‟s Bruton claim, the Magistrate Judge stated: First, neither [Womack‟s nor Finney‟s] confession specifically incriminat[ed] [Abdullah] in that he is not referred to by name. Rather, the statements were redacted so that the participants were referred to as “we,” “someone,” “other guy,” and occasionally “blank.” Additionally, counsel for Petitioner has made no reference to additional facts or evidence linking Petitioner to the statements. In fact, the confessions neither [allude] to nor reference Petitioner and were only introduced into evidence after cautionary instructions were given to the jury. Accordingly, except for facially incriminating confessions, like the one in Bruton, the reviewing court may presume that jurors will follow the court‟s limiting instructions. (App. at 31 (internal footnotes and citations omitted).) With respect to Abdullah‟s prosecutorial misconduct claim, the Magistrate Judge rejected the argument that the prosecutor‟s actions during closing argument attempted to weaken the effect of the trial court‟s limiting instructions and redactions. The Magistrate Judge reasoned that, because Bruton and its progeny do not address the prosecutor‟s conduct in Abdullah‟s case, “the Superior Court‟s adjudication cannot be contrary to Supreme Court precedent.” (App. at 34.) Moreover, the Magistrate Judge determined that “in light of the general presumption that jurors … follow their instructions, it was reasonable for the Superior Court to conclude that the jury would follow the instructions given” by the trial court “after the prosecutor made the arguments [that are] claimed to undermine the [trial court‟s earlier] instructions.” (Id.) 10