Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
9-22-2004
Fischetti v. Johnson Precedential or Non-Precedential: Precedential
Docket No. 02-4026
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Recommended Citation "Fischetti v. Johnson" (2004). 2004 Decisions. Paper 270. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/270
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL CHRISTINE H. NOONING (Argued) P.O. Box 100087 UNITED STATES COURT OF Pittsburgh, PA 15233 APPEALS FOR THE THIRD CIRCUIT Counsel for Appellant
STEPHEN A. ZAPPALA, JR. No. 02-4026 District Attorney
MICHAEL W. STREILY VINCENT FISCHETTI, Deputy District Attorney
Appellant RONALD M. WABBY, JR. (Argued) Assistant District Attorney v. Office of the District Attorney PHILIP JOHNSON; 401 Allegheny County Courthouse GERALD J. PAPPERT* Pittsburgh, PA 15219
Counsel for Appellee
On Appeal from the United States District Court OPINION OF THE COURT for the Western District of Pennsylvania (Dist. Ct. No. 02-cv-00931) District Judge: CHERTOFF, Circuit Judge. Honorable Gary L. Lancaster Vincent Fischetti appeals a final order of the District Court denying his petition for habeas corpus. Fischetti Argued March 24, 2004 argues, inter alia, that he was denied his Sixth Amendment right to counsel when Before: ROTH, AMBRO, and he was tried in state court without CHERTOFF, Circuit Judges. representation by an attorney. Before facing trial for the second time on burglary (Filed: September 22, 2004) charges, Fischetti declared to the state trial judge that he wanted to fire his appointed counsel—his third—and postpone proceedings so that new counsel could be * Pursuant to Fed. R. App. P. 43(c) named. The judge gave Fischetti the
1 choice of continuing with his appointed admission of prior testimony without a attorney, having the appointed attorney preliminary determination that the assist as co-counsel, or representing witnesses were unavailable for trial himself. When Fischetti refused all infringed on Fischetti’s Sixth Amendment options, the state trial court determined right to confront witnesses. We will that Fischetti was capable of representing remand the case to the District Court for himself and had him proceed pro se. further proceedings on this ground alone. Fischetti was convicted of thirty-eight I. counts of burglary. This appeal caps a long and This case presents two principal circuitous litigation that has spanned over issues: twenty years in Pennsylvania state court First, when a criminal defendant and federal court. On May 6, 1981, unreasonably rejects appointed counsel Fischetti was convicted by a jury in the and also rejects the option of proceeding Court of Common Pleas, Allegheny pro se, is it proper for the trial court to County, Pennsylvania, of one count of force that defendant to represent himself? resisting arrest and a total of forty-three counts of burglary. He was subsequently Second, if the correct course for the sentenced to twenty-two and one-half trial court here would have been to compel years to two hundred and twenty years of Fischetti to continue with his appointed imprisonment. Over the next three years, counsel, was the court’s actual decision to Fischetti filed a series of appeals and post- compel the defendant to proceed without conviction hearing petitions contesting his counsel “contrary to . . . clearly established 1981 conviction in Pennsylvania state federal law, as determined by the Supreme court. Fischetti filed his first pro se Court of the United States” or an petition for habeas corpus in District Court “unreasonable application” of that law, so in 1984, which was dismissed the that habeas relief under 28 U.S.C. § following year. 2254(d)(1) is authorized? On March 13, 1991, Fischetti filed We conclude that the state trial his second pro se motion for post court should not have compelled Fischetti conviction collateral relief. Attorney to represent himself. We also conclude, Ralph Karsh was appointed as Fischetti’s however, that the trial court’s decision did second counsel. In November of 1992, not violate clearly established federal law Karsh filed a petition to withdraw as as established by the Supreme Court and counsel, citing irreconcilable differences. did not unreasonably apply that law. The trial court appointed Thomas We are compelled to reverse the Fitzgerald to represent Fischetti in post- District Court’s judgment in part on one conviction proceedings. A series of other ground, however. The state court’s hearings was held before the trial court,
2 and on December 21, 1993, the trial court On November 18, 1994, Fischetti granted the relief requested in the post- appeared in trial court, refused to agree to conviction petition, dismissed three of the a trial date, and asserted that he did not burglary charges, and granted a new trial want Fitzgerald to serve as his counsel. on the remaining counts. The case was That day, Judge Novak sent a letter to assigned to the Honorable Raymond A. Fischetti rejecting Fischetti’s complaint Novak for trial. On June 12, 1994, that Fitzgerald was not acting in his best Fischetti filed a pro se petition to dismiss interest. On December 29, 1994, Judge his second court-appointed counsel, Novak denied Fischetti’s request for new Fitzgerald, and to have new counsel counsel and gave him three choices: appointed. On June 15, 1994, Fischetti continue to have Fitzgerald represent him, filed a pro se petition to Dismiss Pursuant represent himself with Fitzgerald assisting to Pennsylvania Rule of Criminal as co-counsel, or represent himself Procedural 1100. without co-counsel. Fischetti refused the first two options and claimed that he could In the following months, the trial not represent himself. Judge Novak court and Superior Court of Pennsylvania determined that Fischetti was capable of reviewed the blizzard of motions filed by representing himself and set the trial date Fischetti, which were each denied in turn.1 for April 3, 1995. Meanwhile, in the midst of these proceedings, Fischetti filed 1 On August 30, 1994, the trial a pro se Petition for Writ of Habeas court denied Fischetti’s May 5, 1994 Corpus in United States District Court on Motion to Dismiss for Double Jeopardy. December 20, 1994. On March 14, 1995, The following month, Fischetti filed a the District Court dismissed his petition Notice of Appeal contesting that order, and denied a certificate of probable cause. both pro se and through counsel, in On May 1, 1995, a jury trial began Superior Court. On November 10, 1994, before Judge Novak. Throughout the the Superior Court deemed the appeals proceedings, Fischetti sat mute in protest frivolous. Two months earlier, on of the court order that he proceed pro se. September 19, 1994, the Superior Court On May 5, 1995, he was found guilty of also denied Fischetti’s September 2, 1994 thirty-eight counts of burglary. He pro se motion for Emergency Order of received a sentence on two of the counts Court Dismissing Appellant from Custody totaling twenty to forty years of of Allegheny County Court under Rule imprisonment.2 1100 or in the Alternative Immediately Order Allegheny County to Hold Evidentiary hearing. Fischetti also filed a December 12, 1994. pro se Writ of Mandamus with the 2 Supreme Court on September 27, 1994. Sentence was evidently not The Supreme Court denied the petition on imposed on the other counts.
3 Fischetti filed a series of appeals represent himself at trial” and (2) “whether contesting his conviction, some pro se and the remaining three claims . . . should some through his former counsel properly be considered defaulted, as Fitzgerald3 , as well another appointed procedural mistakes during the second counsel, Helen Lynch. On December 30, trial, when appellant acted as his own 1997, the Superior Court affirmed the counsel, appear to be the basis of the judgment of the trial court. The Supreme procedural default for all three remaining Court of Pennsylvania denied Fischetti’s claims.” petition for Allowance of Appeal on June II. 28, 1998. On February 1, 1999, Fischetti filed a pro se Motion for Post Conviction A. Collateral Relief. In the following The thrust of this appeal is months, three more new attorneys were Fischetti’s claim that he was denied his appointed for Fischetti; his first and Sixth Amendment right to counsel at trial second court-appointed appellate attorneys when he was not granted new appointed withdrew. On June 21, 2000, the trial counsel and was left to represent himself. court entered an order dismissing Although we hold that error was Fischetti’s petition. Fischetti timely filed committed, it was not error of a magnitude a notice of appeal with the Superior Court, to warrant vacating the conviction on our which affirmed the judgment of the trial habeas review. court on June 21, 2001. On March 20, 2002, the Pennsylvania Supreme Court Fischetti placed the trial court in an denied Fischetti’s petition for appeal. untenable position when, on the eve of trial, he refused to continue with his then- On May 22, 2002, Fischetti filed, current counsel in any capacity and also through counsel, his habeas petition in the refused to represent himself. This action District Court. On September 30, 2002, was part of a pattern of uncooperative the District Court issued an order adopting conduct through which Fischetti the Magistrate’s Report and repeatedly complained about counsel and Recommendation to dismiss Fischetti’s sought to delay or derail his second trial. petition and to deny a certificate of The trial court investigated Fischetti’s appealability. This appeal followed. We complaints about his appointed counsel granted a certificate of appeal on the and determined them to be unfounded.4 following questions: (1) “whether Fischetti nevertheless ex pressed appellant was denied his Sixth Amendment right to counsel when the second trial court required appellant to 4 Indeed, the state judge specifically concluded that his counsel Fitzgerald was 3 Fitzgerald was re-appointed as well prepared and a “well-trained, skilled counsel on June 29, 1996. defense attorney.” (App. 32).
4 unwillingness to have his competent and counsel or to proceed alone. Had the diligent third appointed counsel continue judge at that point instructed Fischetti to in any capacity and sought to postpone the proceed with current counsel, that decision aging case once again. Worse, he offered would be wholly supportable under the judge no assurance that a fourth Morris. See also Wheat, 486 U.S. at 164. appointment of counsel would finally But, instead, the trial judge reacted to satisfy him. Fischetti’s resistance by ordering him to trial pro se. The trial judge refused to appoint new counsel. This was understandable. Was Fischetti’s response a truly voluntary waiver of counsel? The law in A defendant’s right to counsel is this Circuit indicates that it was not. In not without limit and cannot be the United States v. Welty, a defendant was justification for inordinate delay or denied new counsel and affirmatively manipulation of the appointment system. chose to represent himself. 674 F.2d at United States v. McFadden, 630 F.2d 963, 187. We reversed the conviction because 972 (3d Cir. 1980). There is ample the defendant was not adequately apprised precedent for the proposition that the need of the consequences of self-representation, for an orderly and expeditious trial may and thus his waiver of the right to counsel require that a defendant proceed with was not valid. Id. at 194. If it is improper counsel not of his preference. See, e.g., to have a defendant proceed alone when Wheat v. United States, 486 U.S. 153, 164 there is a flawed waiver, it follows that it (1988); Morris v. Slappy, 461 U.S. 1, 12 is improper to have him do so when he has (1983); Fuller v. Diesslin, 868 F.2d 604, not voluntarily waived at all. 607 (1989). Faced with this situation, therefore, we have previously held that if The threshold question in the court has “made the appropriate determining whether a defendant can inquiries and has determined that a proceed pro se is whether he wants to do continuance for substitution of counsel is so. Only after he has “clearly and not warranted, the court can then properly unambiguously” asserted the right to self- insist that the defendant choose between representation does the court move to the representation by his existing counsel and next question—whether the choice is proceeding pro se.” United States v. “‘intelligent and competent.’” United Welty, 674 F.2d 185, 188 (3d Cir. 1982). States v. Stubbs, 281 F.3d 109, 118 (3d For these reasons, the trial judge properly Cir. 2002) (quoting Buhl v. Cooksey, 233 rejected Fischetti’s demand for another F.3d 783, 799 (3d Cir. 2000)). For this appointment of counsel. reason, the State’s vigorous contention that the trial judge reasonably determined The problem lies with what that Fischetti’s “waiver” was knowing is happened next. Fischetti refused to beside the point. In this case, the trial choose either to proceed with current judge’s ruling facially acknowledges that
5 F i s c h e t t i rej e c t e d — ra t h e r th a n no necessity to mandate that Fischetti asserted—the desire to represent himself. forfeit his attorney. By the same token, Thus, there was no voluntary waiver in the there is no record that the trial court first place. formally warned Fischetti that his refusal to proceed with his appointed counsel Was there another basis, then, to would result in losing counsel altogether. deny Fischetti counsel? To be sure, there Moreover, Fischetti’s failure to choose are occasions when a defendant can be between counsel and pro se representation forced to go to trial without an does not seem to be “conduct” of the sort attorney—when a defendant has forfeited that impliedly waived his attorney. To the his right to counsel or impliedly “waived contrary, this “conduct” was literally it by conduct.” In United States v. ambivalent between the two choices. Goldberg, 67 F.3d 1092 (3d Cir. 1995), Thus, implied waiver is simply inapposite. we explained that a defendant could lose the right to counsel by physically Where, as here, there was no harm assaulting his attorney or (in the case of a or delay to the judicial process in having financially able defendant) refusing to Fischetti’s court-appointed counsel retain any counsel in the first place. We continue representation, forfeiture was not apply this rule of forfeiture not to punish appropriate under our precedent. And defendants but to preserve the ability of where the defendant chooses neither courts to conduct trials. Similarly, under attorney representation nor self- Goldberg, even less serious dilatory representation, the default position for the behavior, if preceded by an explicit court should be to mandate attorney warning, can be treated as an implied representation. After all, while there are waiver of counsel by misconduct. Id. at competing fundamental rights to counsel 1100. Both forfeiture and implied waiver and to self-representation, “it is are conceptually distinct from actual representation by counsel that is the waiver. Id. at 1099-1101. standard, not the exception.” Martinez v. Court of Appeal, 528 U.S. 152, 161 The circumstances here, however, (2000). did not meet the standards necessary to establish that Fischetti actually forfeited We emphasize that our ruling does the right to an attorney or waived his not mean that a trial judge is powerless in attorney by misconduct. There is no the face of a difficult defendant who wants evidence that Fischetti assaulted his neither to proceed with current counsel current attorney, or made it impossible for nor to continue on his own. If the any counsel to appear, or even that the appointment of new counsel is not attorney wished to be relieved. Since warranted, it can be denied. If a defendant there was an attorney in place, there was refuses to proceed with counsel and also no cost to the trial court in simply ordering refuses to proceed pro se, the proper that he continue. Accordingly, there was course is to move forward with existing
6 counsel. This approach preserves the right must contradict “clearly established” to counsel—which is the presumptive decisions of the United States Supreme default position—while allowing the court Court alone. Id. This can happen in one to manage the case. of two ways. Either the state court ignores or misapprehends clear precedent or it B. “confronts a set of facts that are materially If this case were a direct appeal, the indistinguishable from a decision of [the preceding reasoning would necessitate a Supreme] Court and nevertheless arrives reversal, for an erroneous denial of at a result different from [Supreme Court] counsel cannot be harmless. Stubbs, 281 precedent.” Id. at 406. In this regard, the F.3d at 121. Supreme Court has explicitly held that the “state court need not even be aware of our But this case arises under 28 U.S.C. precedents, ‘so long as neither the § 2254, and we do not review for simple reasoning nor the result of the state-court error. The distinction in standard of decision contradicts them.’” Mitchell v. review makes all the difference. Esparza, 124 S. Ct. 7, 10 (2003) (per Under provisions of the curiam) (quoting Early v. Packer, 537 U.S. Antiterrorism and Effective Death Penalty 3, 8 (2002) (per curiam)). Act (AEDPA), 28 U.S.C. § 2254(d)(1), Second, an unreasonab le the writ may issue after a state conviction application of Supreme Court precedent only if the state court decision being occurs when a state court applies the challenged “was [1] contrary to, or [2] correct rule to specific facts in an involved an unreasonable application of, objectively unreasonable way. Williams, clearly established Federal law, as 529 U.S. at 409; see also Mitchell, 124 S. determined by the Supreme Court of the Ct. at 11. A court that unreasonably United States.” In Williams v. Taylor, 529 extends a rule in a new context or, in the U.S. 362 (2000), the Supreme Court alternative, unreasonably fails to extend a amplified on these two bases for rule may also be deemed to unreasonably invalidating a state conviction on habeas apply the correct rule. Williams, 529 U.S. review. at 407. The Supreme Court has not fully First, “contrary to . . . clearly fleshed out this “extension of legal established federal law” means just principle” approach to § 2254(d)(1). that—“‘diametrically different,’‘opposite Williams, 529 U.S. at 408-09; compare in character or nature,’ or ‘mutually Rompilla v. Horn, 355 F.3d 233, 240 (3d opposed.’” Id. at 405 (quoting Webster's Cir. 2004) (unreasonable application Third New International Dictionary 495 includes unreasonable failure to extend) (1976)). Moreover, the state court with Marshall v. Hendricks, 307 F.3d 36, judgment must not merely be contrary to 51 & n.2 (3d Cir. 2002) (noting the law as articulated by any federal court. It Supreme Court has not definitively
7 adopted unreasonable extension theory). Court jurisprudence addressing § 2254(d)(1) has established that Our approach under AEDPA, determining the “clearly established” therefore, requires us to determine what benchmark should be done on a case- the clearly established Supreme Court specific level. decisional law was at the time petitioner’s conviction became final. See Marshall, That requirement of particularity is 307 F.3d at 62; Moore v. Morton, 255 evident from the ruling in Williams itself. F.3d 95, 104-05 & n.8 (3d Cir. 2001). We In discussing the “contrary to” decisional must then analyze the challenged state law prong of the statute, the majority held decision in light of that decisional law a state decision is contrary to a Supreme under each of the two prongs of the Court precedent only if it contradicts the AEDPA test. Two aspects of this analytic precedent or “if the state court confronts a process bear special mention as the relate set of facts that are materially to this case. indistinguishable from a decision of this Court and nevertheless arrives at a result The first aspect is this: When we different from our precedent.” Williams, look to Supreme Court precedent as a 529 U.S. at 406. This language touchstone, we must decide the level of establishes that under AEDPA the Court specificity at which we decide whether the views its precedents in their particular state decision is contrary to, or factual settings. The touchstone unreasonably applies, that precedent. precedents are not to be examined by Obviously, if one examines Supreme looking to broad pronouncements or Court decisions at a broad level of generative principles in the opinion. The generality, the universe of state decisions “materially indistinguishable” test that may be contrary to those decisions presupposes a fact-specific analysis of the will expand. For example, it could be said Supreme Court case law. See Moore, 255 that Faretta v. California broadly F.3d at 107; Jermyn v. Horn, 266 F.3d established a right to self-representation 257, 281 (3d Cir. 2001)(same). upon a proper waiver of counsel, and that any subsequent state court decision The “unreasonable application” erroneously upholding a flawed waiver prong also takes as its point of departure would be contrary to, or an unreasonable “clearly established” Supreme Court application of, Faretta. 422 U.S. 806 precedent. Not surprisingly, therefore, in (1975). This would plainly prove too analyzing habeas claims for unreasonable much. See, e.g., Nelson v. Alabama, 292 application of the law, the Supreme Court F.3d 1291, 1295-96 (11th Cir. 2002) has looked at its own baseline precedents (holding that relying on implicit Faretta through a sharply focused lens. In Price v. findings to allow pro se representation was Vincent, for example, the Court reviewed not contrary to or an unreasonable a decision of the Sixth Circuit granting the application of Faretta). Instead, Supreme writ to a defendant who alleged a violation
8 of the Double Jeopardy Clause. 538 U.S. established constitutional principle to 634 (2003). The defendant had been govern a case which is closely analogous granted a motion for directed verdict to those which have been previously during trial, which was entered on the considered in the prior case law.” Penry v. docket; two days later, the judge reversed Lynaugh, 492 U.S. 302, 314 (1989) the ruling and allowed the charge to go to (quoting Mackey v. United States, 401 the jury. Id. at 637. The Court of Appeals U.S. 667, 695 (1971) (Harlan, J., granted habeas relief on the ground that concurring in part and dissenting in part)). the state ruling clearly violated the This language—“closely Supreme Court’s decision in United States analogous”—underscores the specificity v. Martin Linen Supply Co., 430 U.S. 564, that we must employ in reviewing whether 571 (1977), which held that double a state court has unreasonably applied jeopardy attaches when the trial judge Supreme Court precedent. See Moore, makes a ruling that “actually represents a 255 F.3d at 104-05 (equating the resolution, correct or not, of some or all of definition of “old rule” under Teague with the factual elements of the offense the definition of “clearly established” law charged.” The Supreme Court reversed, under AEDPA). noting that even if the state court was We also emphasize a second aspect wrong, it had distinguished Martin Linen to our analysis under AEDPA. In based on reasonable factual differences. determining whether a state decision is an 538 U.S. at 642-43. unreasonable application of Supreme Indeed, in emphasizing that Court precedent, this court has taken the Supreme Court precedents must be viewed view that “decisions of federal courts with particularity, we note that in other below the level of the United States contexts the Court has held that Supreme Court may be helpful to us in application of a “clearly established” legal ascertaining the reasonableness of state rule is examined narrowly. For example, courts’ application of clearly established in the retroactivity context, a decision is United States Supreme Court precedent.” viewed as the application of an established Marshall, 307 F.3d at 71 n.24; see also “old rule” only if “dictated by precedent Moore, 255 F.3d at 104 n.8. The existing at the time the defendant’s Supreme Court itself appears to adopt this conviction became final.” Teague v. approach, since it has pointed to decisions Lane, 489 U.S. 288, 301 (1989) of federal and state appeals courts as (plurality); see also Beard v. Banks, 124 S. evidence that an interpretation of Supreme Ct. 2504, 2509 (2004) (precedent must Court precedent was not objectively “compel,” not merely “support[]” the unreasonable. See Price, 538 U.S. at 643 decision to fall within old rule). And the & n.2. However, we emphasize that cases application of a rule is dictated by not decided by the Supreme Court do not precedent only if it applies “a well- serve as the legal benchmark against
9 which to compare the state decision. At on forfeiture of the right to counsel. the end of the day, AEDPA “confine[s] The Supreme Court has on the authorities on which federal courts numerous occasions made clear that the may rely” in a habeas case to Supreme right to counsel can only be waived Court decisions. Lewis v. Johnson, 359 voluntarily and knowingly. McKaskle v. F.3d 646, 652 (3d Cir. 2004); see also Wiggins, 465 U.S. 168, 173 (1984); Dunn v. Colleran, 247 F.3d 450, 457 (3d Faretta, 422 U.S. 806, 835 (1975); Adams Cir. 2001); Hameen v. Delaware, 212 F.3d v. United States ex rel. McCann, 317 U.S. 226, 234-43 (3d Cir. 2000) (analyzing 269, 279 (1942). But the Court’s Supreme Court cases). established precedent in this area has not C. expressly dealt with the matter of forfeiture of counsel, which is the exact With these general principles in issue here. As we have discussed, mind, we review the decision of the state forfeiture and voluntary waiver are court that ordered Fischetti to proceed on conceptually separate. Moreover, the his own behalf when he declined both to Supreme Court’s prior decisions have not proceed with his current counsel and to involved facts that are “materially represent himself. The question here is indistinguishable” from the facts not whether the state court order was surrounding Fischetti’s actions in this simple error, but whether it was error that case. See Williams, 529 U.S. at 406; contradicted or unreasonably applied Moore, 255 F.3d at 107. It follows that Supreme Court precedent. the state court ruling here was not contrary At the outset, we must articulate the to federal law as articulated by decisions issue presented to the state court precisely. of the Supreme Court. This was not a circumstance in which To be sure, the analysis undertaken Fischetti was simply forced to go to trial by the state court, and by the reviewing without counsel or where he received an state appellate court, did not discuss these inadequate waiver hearing under Faretta. Supreme Court precedents. That Here, Fischetti refused to make a choice omission, as we have seen, is not between proceeding with current counsel dispositive. See Mitchell, 124 S. Ct. at 10. and proceeding pro se. Effectively, he What is important is that the state courts sought to defy the trial court’s denial of certainly did not contradict or take a his motion for yet another new counsel. In position that was explicitly inconsistent essence, the state court treated him not as with any prevailing United States Supreme if he had waived the right to his attorney Court decisions. but as having forfeited that right. See Goldberg, 67 F.3d at 1101-02. We must Whether the state court therefore examine whether there is unreasonably applied the Court’s “clearly established” Supreme Court law precedent presents a closer question,
10 however. Undoubtedly, the Supreme proceed either with or without counsel Court has made clear that the right to because he has been denied the particular counsel at trial is fundamental and cannot counsel of his choice. Accordingly, none be actually waived except voluntarily and of the precedential decisions provides a knowingly. As the Court has observed, template that fits the facts here. Nor has there is a “strong presumption” against the the Supreme Court expressly ruled out waiver of the right to counsel. Patterson forfeiture of counsel. Indeed, the Supreme v. Illinois, 487 U.S. 285, 307 (1988). Court has recognized that the parallel And, as we have pointed out above, the rights to counsel and to self-representation assistance of counsel, not self- cannot be manipulated to frustrate the representation, is the presumptive orderly processes of the trial court. In position. See Martinez, 528 U.S. at 161. Faretta, for example, the Court warned Thus, if our role on habeas review were to that the “right of self-representation is not determine if the state judge properly a license to abuse the dignity of the extrapolated the general principles that can courtroom.” 422 U.S. at 834 n.46; accord be derived from Faretta, Patterson, and McKaskle, 465 U.S. at 184. Martinez to this different factual setting, More importantly, the Supreme we might disagree with the state court Court has made clear that Sixth ruling. Amendment rights generally are not That is not our role. In reviewing amenable to forfeiture. Through the reasonableness of the state courts’ misconduct, defendants can outright application of Supreme Court precedent, forfeit trial rights as fundamental as the we must use as our point of departure the Sixth Amendment right to counsel. The specific holdings of the Court’s decisions. Confrontation Clause of the Sixth When assessing whether the state court Amendment for example, guarantees that acted reasonably in applying or refusing to a defendant can be present in the apply that precedent, we must be mindful courtroom throughout a criminal trial. that the issue is whether Supreme Court The Supreme Court held in Illinois v. law “dictated” a result in our case, Teague, Allen, 397 U.S. 337. 343 (1970), however, 489 U.S. at 301 (plurality); see Moore, that a defendant can lose that right if he is 255 F.3d at 104-05, or whether the disruptive in court after being warned by circumstances presented here were the judge. Indeed, the court upheld “closely analogous” to those that formed exclusion notwithstanding the availability the basis of earlier high court decisions, of alternative coercive measures that Penry, 492 U.S. at 314 (internal quotations might have served to discipline the and citations omitted). misbehaving defendant. Id. at 344-46. Likewise, in Taylor v. United States, 414 As we have observed, no Supreme U.S. 17 (1973) (per curiam), the Court Court case has dealt specifically with the affirmed a decision to proceed with a trial case of a defendant who is unwilling to
11 after a defendant failed to return after a allowing forfeiture and waiver by conduct recess. The Court rejected the argument of counsel. We cited Illinois v. Allen as that the absence could not be construed as approving the decision to “deprive a a knowing waiver in the absence of an defendant of a fundamental constitutional explicit warning that the trial would right at least where the defendant is aware continue if he absconded. It held the trial of the consequences of his actions, but could continue because the court’s power regardless of whether the defendant to try a case “‘may not be defeated by affirmatively wishes to part with that conduct of the accused that prevents the right.” Goldberg, 67 F.3d at 1101. We trial from going forward.’” Id. at 20 revisited the forfeiture issue in United (quoting Allen, 397 U.S. at 349 (Brennan, States v. Leggett, 162 F.3d 237 (3d Cir. J., concurring)). 1998).5 There, a defendant physically attacked his trial counsel at sentencing. These decisions certainly provide a After release from the hospital, counsel basis to conclude, as the state judge did in understandably sought to withdraw. The this case, that defiant behavior by a district court granted the application and defendant can properly cost that defendant “concluded that Leggett had forfeited his some of his Sixth Amendment protections right to counsel for the sentencing if necessary to permit a trial to go forward hearing.” Id. at 240. We affirmed. See in an orderly fashion. This precedent, also United States v. Jennings, 855 F. therefore, cuts against a finding that the Supp. 1427 (M.D. Pa. 1994) (assault on trial judge unreasonably applied Supreme appointed attorney waives counsel “by Court case law in responding to Fischetti’s implication”), aff’d, 61 F.3d 897 (3d Cir. obduracy by mandating that he proceed without counsel. Additional support for the reasonableness of the state court’s 5 application of Supreme Court precedent is Leggett was decided four years found in rulings of other courts, including after the state judge in our case ruled that our own, that uphold at least limited Fischetti must proceed pro se. That fact forfeitures of right to counsel. See Price, does not make a difference. As we have 538 U.S. at 642-43 & n.2 (relying on other discussed, we look to non-Supreme Court decisions as indications of reasonable cases not because the state court was interpretation); Moore, 255 F.3d at 104-05 obliged to rely on them, but as evidence of n.8 (same). what courts would view as reasonable interpretations of Supreme Court law. See As we have already discussed, we Lockhart v. Fretwell, 506 U.S. 364, 372- confronted forfeiture and waiver by 73 (1993) (holding that the Teague rules conduct in Goldberg. While we found in limiting retroactive interpretation of the that case an insufficient factual predicate law do not apply to changes in the law that to apply either doctrine, we did read the would uphold, rather than reverse, a applicable Supreme Court cases as conviction).
12 1995) (table). 260 F.3d 87 (2d Cir. 2001), the Court entertained a § 2254 petition brought by a Other circuits have also interpreted defendant whose counsel was discharged Supreme Court decisions to be consistent before sentencing after defendant punched with forfeiture of the right to counsel. counsel in the ear. Although the Court of These cases have interpreted the law to Appeals indicated that a forfeiture based require defendants to go to trial on one incident might be constitutionally unrepresented when they have failed to unwarranted, id. at 89, it held that the state hire counsel within a reasonable time, courts’ decision upholding the forfeiture United States v. Bauer, 956 F.2d 693 (7th was neither contrary to Supreme Court Cir. 1992); United States v. Mitchell, 777 cases nor an unreasonable application of F.2d 248 (5th Cir. 1985), or have abused those cases. Gilchrist concluded that the counsel, United States v. McLeod, 53 F.3d Supreme Court’s “recognition that other 322 (11th Cir. 1995). important constitutional rights may be None of these cases approves the forfeited based on serious misconduct” specific decision made by the trial judge counsels against a finding that the state here. But the appellate cases do establish court was unreasonable in concluding that that the Supreme Court’s general right to the defendant had forfeited his right to counsel decisions are reasonably read as counsel by his single act of violence. Id. qualified by the trial court’s power to at 97. We apply the same logic in remedy abuse of that right through reaching the result here. forfeiture. Further, none of these cited The state court’s mandate that appellate cases saw in the Supreme Fischetti proceed pro se was error, but was Court’s precedents any clear guidance as not contrary to, or an unreasonable to the precise standard to be applied application of, Supreme Court precedent. before forfeiture can be triggered. Put another way, the Supreme Court has not III. fully defined when a defendant’s Fischetti raises three other claims. misconduct or defiance warrants a He first claims that his Sixth Amendment forfeiture. Our canvass of decisions of right to effective assistance of counsel was our own and sister courts reinforces our violated when his counsel at the first trial view that the state court order that failed to argue that probable cause did not Fischetti proceed without counsel was not exist with regard to his arrest for burglary, an objectively unreasonable application of theft, and receipt of stolen property. In the Supreme Court case law under the Sixth alternative, he contends that appellate Amendment. Williams, 529 U.S. at 409- counsel was ineffective in not contesting 10, 412. the second trial court’s failure to hold a The Second Circuit has reached a hearing on this issue. Second, he claims similar result. In Gilchrist v. O’Keefe, that his Sixth Amendment right to
13 effective counsel was violated when Superior Court (and throughout the appellate counsel did not appeal the failure subsequent state proceedings) that any of the court at the second trial to provide default on his direct appeal was the him with certain court records and consequence of ineffective assistance or transcripts from the first trial. Finally, the outright denial of counsel at the trial.6 Fischetti maintains that his Sixth The Superior Court rejected this excuse, Amendment right to confront witnesses determining that the default ultimately and right to effective assistance of counsel stemmed from Fischetti’s failure to raise were denied because the trial court failed any of these issues at the second trial. to conduct a preliminary hearing on the Specifically, the Court found that unavailability of certain witnesses before Fischetti, acting pro se, did not request a their prior testimony was read into suppression hearing regarding the arrest; evidence at his second trial (and appellate did not perfect a request for court records; counsel did not appeal that failure). and did not request a preliminary hearing regarding admissibility of testimony from The District Court rejected these the first trial. We note that the federal claims when adjudicating the original law, as well as Pennsylvania law, does not habeas petition. The District Court found allow pro se litigants to avoid their own that each of these contentions was waivers on the ground that they were procedurally barred on independent state ineffective as “counsel.” Faretta, 422 U.S. law grounds because they were not at 834 n.46; Commonwealth v. Griffin, properly presented to the state courts. 644 A.2d 1167, 1171 (Pa. 1994). Claims barred on state procedural grounds cannot be reviewed on habeas unless the Fischetti argues on this appeal that “prisoner can demonstrate cause for the the District Court was incorrect to rely on default and actual prejudice as a result of these omissions at trial as procedural the alleged violation of federal law, or waivers because he unwillingly proceeded demonstrate that failure to consider the pro se. Put differently, he urged in state claim will result in a fundamental court and urges here that the trial court’s miscarriage of justice.” Coleman v. erroneous decision to force him to Thompson, 501 U.S. 722, 750 (1991). represent himself provides “cause” to Cause must be “some objective factor overlook the default of all claims he did external to the defense.” Murray v. not raise pro se at trial.7 Carrier, 477 U.S. 478, 488 (1986). These claims were presented to the 6 Pennsylvania Superior Court on collateral Thus, the ineffective assistance review and rejected as procedurally barred claims themselves were exhausted. See because they were not raised on direct Murray, 477 U.S. at 489. appeal. Presumably anticipating this 7 This was the second question on result, Fischetti also argued before the which we granted a certificate of
14 Attorney error that rises to the level counsel for state habeas. 501 U.S. at 755- of ineffective assistance under the Sixth 56. The majority distinguished that fact Amendment establishes external “cause” pattern from one in which the denial of to overcome a procedural default. Murray, assistance of counsel occurred at a stage of 477 U.S. at 488; see also Werts v. proceedings during which the Sixth Vaughn, 228 F.3d 178, 193 (2000). Of Amendment does apply—that is, at trial or course, a defendant who proceeds pro se on direct appeal. Id. at 754. In the latter voluntarily cannot assert a claim of case, because the ineffective assistance of ineffective assistance of counsel. But counsel (and a fortiori the outright denial here, the defendant was erroneously of counsel) violates the State’s ordered to proceed without counsel. If constitutional obligation, the State “must ineffective assistance of counsel is bear the cost of any resulting default and sufficient to excuse a default, wrongful the harm to state interests that federal outright denial of counsel must, a fortiori, habeas review entails.” Id. also be sufficient. Indeed, the Supreme Accordingly, we hold that the Court observed that a total denial of constitutionally erroneous denial of counsel works greater unfairness than counsel to Fischetti constitutes cause mere ineffectiveness of counsel. Penson sufficient to excuse his procedural default v. Ohio, 488 U.S. 75, 88 (1988). of the claims he raises here. Our ruling is Logically, therefore, a waiver caused by consistent with decisions of other circuits. an improper outright denial of the Sixth Shayesteh v. City of S. Salt Lake, 217 Amendment right to counsel constitutes F.3d 1281, 1283 (10th Cir. 2000); “cause.” Restrepo v. Kelly, 178 F.3d 634, 640-41 The Supreme Court decision in (2d Cir. 1999). Coleman v. Thompson itself is instructive We pause to address an obvious in this regard. The Court held there that question: How can the denial of counsel ineffective assistance of counsel on appeal suffice to establish cause to overcome a from a denial of state habeas review was procedural default when we have already not cause for a procedural default because ruled that it is not sufficient as a stand- there was no Sixth Amendment right to alone claim to warrant reversal of the underlying convictions? The answer lies in appealability: “whether the remaining the differing standard for evaluating three claims in this application should constitutional error as a substantive basis properly be considered defaulted, as of relief and as a cause to avoid default of procedural mistakes during the second other claims. As we have discussed, trial, when appellant acted as his own AEDPA authorizes the writ of habeas counsel, appear to be the basis of the corpus to be granted only for clearly procedural default for all three remaining erroneous applications of Supreme Court claims.” case decisions. The constitutional error
15 here does not meet this threshold. But Vaughn, 96 F.3d 666, 670 (3d Cir. 1996). AEDPA does not establish a statutory high Fischetti’s first claim is that counsel hurdle for the issue of cause. And the at his first trial rendered ineffective Supreme Court’s pronouncement in assistance when he failed to challenge the Coleman applied no AEDPA-style validity of Fischetti’s arrest and that the “unreasonable application” test in court failed to conduct an adequate determining the existence of cause. suppression hearing. This claim is refuted Rather, it made its determination of cause, by the record. As Fischetti’s own or lack of cause, based on a submission to the District Court asserts, straightforward analysis whether the the first trial court did hold a suppression denial of counsel was “an independent hearing and upheld the validity of constitutional violation.” 501 U.S. at 755. Fischetti’s arrest. Memorandum in We do so here as well. Our analysis in Support for Writ of Habeas Corpus under Part II has established that the state court 28 U.S.S.C. § 2254 at 23-24. Since the committed constitutional error in forcing validity of the arrest was actually Fischetti to go to trial himself, but that the adjudicated after a hearing, the allegations error was not sufficiently unreasonable that counsel failed to raise the issue at trial under Supreme Court precedent to or to secure a hearing are utterly without constitute an independent basis of habeas merit. And once the first trial court relief under the threshold requirements of adjudicated the issue, the law of the case § 2254(d)(1). The constitutional error doctrine eliminated any requirement that suffices, however, to establish cause for the second trial court reconsider the issue. the procedural default. Waldorf v. Shuta, 142 F.3d 601, 616 n.4 Of course, once the petitioner has (3d Cir. 1998). Therefore, Fischetti has established cause, he must show “‘actual not even established error, let alone prejudice’ resulting from the errors of prejudice. which he complains.” United States v. Fischetti’s next claim, that appellate Frady, 456 U.S. 152, 168 (1982). Such counsel was ineffective in not appealing alleged errors must have “worked to his the state court’s failure to provide him actual and substantial disadvantage, with documents from his previous trial, infecting his entire trial with error of including court records and transcripts of constitutional dimensions.” Id. at 170; prior proceedings, also fails. Fischetti Werts, 228 F.3d at 193. In the context of admits that the second trial court ordered a substantive ineffective assistance claim, Fischetti’s second counsel to provide him this Court has stated that prejudice occurs with records but complains there was where “there is a reasonable probability “nothing in the docket or record to evince that, but for counsel's deficient that the court ever entered an order performance, the result of the proceeding directing that all court records in [his] case would have been different.” Sistrunk v. be turned over to him.” Appellant Br. at
16 27. Fischetti has failed to establish what 1369 (2004). That proposition was records he did not receive, and what established by the Supreme Court many possible effect his failure to receive these years ago, well before the trial of this case. records had on his second trial. He has See Barber v. Page, 390 U.S. 719, 722-25 therefore failed to establish prejudice for (1968). Admitting the prior testimony this claim. here without a determination of unavailability was contrary to Barber. Fischetti’s final claim centers on the second trial court’s decision to allow Was this Confrontation Clause some witness testimony from the first trial violation prejudicial? Although Fischetti to be admitted into evidence at the second was convicted in his second trial of thirty- trial without a preliminary determination eight counts of burglary, the record regarding the unavailability of those discloses that he was sentenced only on witnesses. A number of burglary victims two of those counts. The trial court testified at the first trial, held some sentenced Fischetti to ten to twenty years fourteen years earlier than the second. for the burglary of the home of Joseph According to the record, some victims’ Kostrub, a victim who did testify at the testimony from the first trial was admitted second trial. The trial court then added a in the second trial without any showing consecutive ten to twenty year sentence that they were unavailable. Fischetti for the burglary of the home of Frieda argues that his Sixth Amendment rights Barnes. However, Frieda Barnes did not were violated because the second trial testify at the second trial; her testimony court’s failure to hold a preliminary was read into the record before the jury. hearing establishing unavailability Since each of these burglaries was violated his right to confront witnesses. distinct, the sentencing on the Kostrub He contends, by the same token, that his burglary could not have been affected by appellate counsel’s failure to contest the any error in admitting testimony of victims admission of this prior testimony on on separate burglaries.8 That is not so appeal was ineffective assistance of with respect to the Barnes burglary, counsel. however. Absent a determination that Ms. The second trial court’s failure to Barnes was not available to appear, it was hold a preliminary hearing (and appellate not proper for Ms. Barnes’s testimony to counsel’s failure to appeal this point) were be read to the jury at the trial. constitutional error. As the Supreme Court has recently reminded us, under the Sixth Amendment’s Confrontation Clause, 8 Moreover, since at least nine testimony from an earlier sworn victims did testify at the second trial, the proceeding may not be admitted at a additional burglary counts without criminal trial if the witness is available. witnesses were akin to “bringing coals to Crawford v. Washington, 124 S. Ct. 1354, Newcastle.”
17 Accordingly, we will reverse and remand the judgment of the District Court only with respect to Fischetti’s sentence on the Barnes burglary count. On remand, the District Court may hold a hearing to determine whether Ms. Barnes was unavailable at the time of Fischetti’s trial. If she was, then any error will not have been prejudicial after all. If the District Court cannot determine that Ms. Barnes was unavailable, it should consider if the error was prejudicial in light of all the other evidence. If the District Court finds that there was prejudice on this count of the conviction, it should grant the writ as to the Barnes count only with instructions that the state court discharge Fischetti on completion of his sentence on the Kostrub count unless the state court either (1) sentences Fischetti under another count for which there was a victim who testified at trial or (2) retries Fischetti on the Barnes count.