Eddie Williams v. Superintendent Greene SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 22-2053 and 22-2076

EDDIE WILLIAMS,

Appellant in No. 22-2076

v.

SUPERINTENDENT GREENE SCI;

ATTORNEY GENERAL PENNSYLVANIA;

DISTRICT ATTORNEY LEBANON COUNTY,

Appellants in No. 22-2053

________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-20-cv-00908)

District Judge: Honorable Robert D. Mariani

________________

Argued November 9, 2023

Before: RESTREPO, SCIRICA, and SMITH, Circuit Judges

(Filed: August 13, 2024)

________________

Brian L. Deiderick [ARGUED]

Office of the District Attorney

County of Lebanon

400 S. 8th Street, Rm. 11

Lebanon, PA 17042

Ronald Eisenberg

Pennsylvania Office of Attorney General

1600 Arch Street, Ste. 300

Philadelphia, PA 19103

Counsel for Appellants in No. 22-2053

Michael Wiseman [ARGUED]

Wiseman & Schwartz, LLP

718 Arch Street, Ste. 702

Philadelphia, PA 19106

Counsel for Appellant in No. 22-2076

__________

OPINION OF THE COURT

__________

RESTREPO, Circuit Judge.

The framers drafted the Bill of Rights to contain broad

principles curbing the powers of our federal government. See,

e.g., U.S. Const. amend. V. They also included more

particularized rules to safeguard individual liberty like the

Sixth Amendment, which defends against unjustified

2

deprivations of life and liberty1 by mandating that the

government afford several specific procedural protections to

the criminally accused.2 This appeal involves one such

guarantee: an accused person’s right “to be confronted with the

witnesses against [them]” pursuant to the Confrontation Clause

of the Sixth Amendment.

In 2015, the Commonwealth of Pennsylvania

prosecuted Eddie Williams for a series of crimes related to an

1

See, e.g., Singer v. United States, 380 U.S. 24, 31

(1965) (“The [jury trial] clause was clearly intended to protect

the accused from oppression by the [g]overnment . . . .”

(citation omitted)).

2

The Supreme Court has applied all but one of the

Sixth Amendment’s protections to the states through the Due

Process Clause of the Fourteenth Amendment. See In re

Oliver, 333 U.S. 257, 272–74 (1948) (right to a public trial;

right to notice of accusations); Gideon v. Wainwright, 372 U.S.

335, 342, 345 (1963) (right to counsel); Pointer v. Texas, 380

U.S. 400, 403 (1965) (right to confront hostile witnesses);

Parker v. Gladden, 385 U.S. 363, 364 (1966) (right to an

impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 223

(1967) (right to a speedy trial); Washington v. Texas, 388 U.S.

14, 17–19 (1967) (right to compulsory process to obtain

witness testimony; right to confront favorable witnesses). The

Supreme Court has not yet ruled on the Vicinage Clause, but

we have assumed “for the purposes of discussion, without

expressing any views upon the matter, that the state-and-

district guarantee is so closely related to the purpose of the

jury-trial guarantee that it is applicable to the states.” Zicarelli

v. Gray, 543 F.2d 466, 479 (3d Cir. 1976).

3

alleged dispute over illegal drug profits that killed one person

and seriously injured another. A jury returned a guilty verdict

on all twenty counts, and the trial judge sentenced Mr.

Williams to life imprisonment, plus a term of 21.5 to 47 years.

But at trial, Mr. Williams’s judge twice read a non-testifying

codefendant’s Criminal Information to the jury in violation of

the Sixth Amendment. Mr. Williams’s attorney’s

constitutionally ineffective response only made matters worse.

These two interrelated injuries each justified the District

Court’s decision to grant habeas relief to Mr. Williams. After

all, for our Constitution’s liberty-ensuring principles to have

any strength, they must, like a muscle, be used correctly,

consistently, and forcefully. For the following reasons, we will

affirm.

I

A decade ago, law enforcement saw Rick Cannon,

Akeita Harden, and Mr. Williams leave the apartment complex

in Lebanon, Pennsylvania, where Marcus Ortiz was killed, and

Keith Crawford was grievously wounded—both by gunshots

to the head. Arriving at the scene moments after the gunshots

were reported, the responding patrol officer observed Mr.

Williams and Mr. Cannon enter a vehicle driven by Ms.

Harden. A car chase ensued, and all three suspects eventually

abandoned the vehicle to flee on foot. Law enforcement

apprehended Mr. Cannon and Ms. Harden that day, and Mr.

Williams seven months later.

In July 2015, Mr. Cannon pleaded guilty to a twenty-

count Criminal Information, which included homicide and

attempted homicide charges, aggravated assault, robbery,

possessing controlled substances with intent to deliver, two

firearms charges, flight to avoid arrest, and conspiracy charges

4

related to each. Nine of those charges named Mr. Williams as

a coconspirator. Meanwhile, Mr. Williams was charged with

the same twenty offenses as Mr. Cannon and proceeded to a

joint trial with Ms. Harden in October 2015.

Here marks the start of our controversy. During Mr.

Williams’s attorney’s opening statement, he stated:

Second thing that will make this case a little bit

easier for you is that there’s one guy who hasn’t

really been mentioned. . . . That guy’s name is

Rick Cannon. The reason that Mr. Cannon is so

pivotal is because he’s already said that he did

this. He wrote down on a piece of paper under

oath, yes, I killed that man. He stood in this very

courtroom, put up his hand and took an oath and

told Judge Kline, yes, I killed that man. He

admitted that he killed him. Rick, we already

know for an absolute fact that Rick Cannon

killed the man.

Supp. App’x 121. The Commonwealth did not object

contemporaneously, but, after opening statements concluded,

explained at sidebar that it “[took] exception” to defense

counsel’s opening because it mischaracterized the facts. Supp.

App’x 127; see also id. at 128 (“I think it’s a

mischaracterization of the facts to say that we know for a fact

that Rick Cannon is the person that pulled the trigger . . . .”). In

reality, the homicide count in Mr. Cannon’s Criminal

Information only read: “In that the Defendant, acting as a

principal and/or accomplice[,] . . . did fire a gun at the victim

striking him with a bullet.” Supp. App’x 132.

5

As a “curative instruction,” the trial court recommended

“read[ing] into the record what Mr. Cannon pled guilty to” as

that would “clear[] the air on the matter.” Supp. App’x 129.

The court explained that it thought it “fair” for the jury to hear

that Mr. Cannon “pled [guilty] as a principal or an accomplice

as well.” Supp. App’x 130. From there, the scope of what was

to be read increased:

THE COURT: I think in fairness, because there’s

so much here, I know [Mr. Cannon is] on appeal,

but I sentenced him, and I’ll say he was

sentenced after that. Okay. I’m going to read

each one.

[DEFENSE COUNSEL]: Just Count 1 you mean

or you want to read the whole thing?

THE COURT: I think I need to. . . . Does

anybody have an objection?

[COMMONWEALTH]: He pled to everything.

THE COURT: He pled to everything. It will take

a minute or two, but it’s going to clear the air in

terms of the opening.

[DEFENSE COUNSEL]: I have no problem

with that.

Supp. App’x 130–31. Having decided to read the entirety of the

Criminal Information rather than just the homicide count, the

trial court then addressed the jury:

6

At a sidebar there was an objection made to

certain characterization[s] of what the District

Attorney knew or [did] not kn[o]w about Rick

Cannon, and all parties have agreed that Rick

Cannon pled guilty before this jurist. I took the

guilty plea and sentenced him.

So to make it perfectly clear to the jury what he

did and what he alleged he pled guilty to, I’m

going to read the entire [Criminal] Information

concerning Rick Cannon, and I want you to just

slowly listen carefully to it as I go through. All

Counsel has agreed that he pled guilty to all of

these charges, and I sentenced him thereafter.

The amount of sentence is not a relevant factor

here, but the fact that he pled guilty to these [is a

relevant factor]. So take your time, and we will

go through it.

Supp. App’x 131 (emphasis added). The trial court proceeded

to read aloud the entirety of Mr. Cannon’s twenty-count

Criminal Information. Nine charges in Mr. Cannon’s Criminal

Information specifically named Mr. Williams as a

coconspirator.3 For instance, Count 5 read:

3

The nine charges naming Mr. Williams included:

Count 4, Criminal Conspiracy, Violation of the Drug Act;

Counts 5 and 6, Criminal Conspiracy, Criminal Homicide;

Counts 9 and 10, Criminal Conspiracy to Commit Aggravated

Assault; Counts 13 and 14, Criminal Conspiracy, Aggravated

Assault; Count 17, Criminal Conspiracy to Commit Robbery;

and Count 19, Criminal Conspiracy to Commit Flight to Avoid

Apprehension.

7

Count 5: Criminal Conspiracy Criminal

Homicide . . . In that the Defendant, acting as a

principal and/or accomplice, with the intent of

promoting or facilitating the commission of the

crime of Criminal Homicide, unlawfully did

agree with AKEITA HARDEN and/or EDDIE

WILLIAMS, that they or one or more of them

would engage in conduct which constitutes such

a crime, or an attempt or solicitation to commit

such a crime, and did an overt act in the

pursuance thereof, the Defendant did fire a gun

at MARCUS ANTONIO ORTIZ striking him

with a bullet.

App’x 36 (emphasis added).

This was not the last time Mr. Cannon’s Criminal

Information was raised during Mr. Williams’s trial. Both

defense counsel and the Commonwealth made it an issue in

their closing arguments. First, defense counsel argued:

Rick Cannon shot Mr. Crawford, and he shot Mr.

Ortiz, and we know that for one reason, because

he, himself, said he did it. The Judge read to you

the charges that Mr. Cannon pled guilty to, and

I’m going to just read one of them to you, the

first one, the most important one, Criminal

Homicide.

That the Defendant it does say acting as a

principal and/or accomplice, which is standard in

this thing, unlawfully, intentionally, knowingly,

recklessly or negligently did cause the death of

8

another human being, namely Marcus Ortiz, to

wit . . . did cause the death of Marcus Ortiz, that

is to say, the Defendant did fire a gun at the

victim striking him with a bullet.

Mr. Cannon came into this courtroom right here

and stood right over here. He put up his hand. He

faced – he looked Judge Kline right in the eye,

and he said, “I did it. That’s what I did.” And you

know, when you give a plea, the Judge, the job

of the Judge is to make sure you know what

you’re doing and you’re doing it voluntarily, and

Judge Kline did his job. He made sure he knew

what he was talking about and knew that he was

doing it voluntarily. There’s a long series of

questions that go on with that, and that was

performed in this case. So we know for one thing

that Mr. Cannon already pled guilty to killing

Marcus Ortiz.

App’x 53–54. The Commonwealth responded in its closing by

telling the jury:

Now, I want to talk to you about something else,

and I’ve got a great deal of respect for both

Defense Counsel; but I’m going to suggest that

there’s some disingenuous comments being

made up here previously. You heard from

[defense counsel] that all the evidence has to

come from up there, not from down here, from

that stand. Told you that multiple times, and then

stands down here and says, [“]We know for a fact

Rick Cannon pulled the trigger.[”] Did that come

9

from the stand? It didn’t. It comes from him

telling you that. We don’t know that for a fact.

That has never been proven or said anywhere in

this courtroom despite what he says to you, and

it’s disingenuous to say otherwise.

What we know is Rick Cannon pled guilty as a

principal or accomplice to these crimes. He

owned his share of this, okay; but if you want to

ascribe great value to Rick Cannon’s guilty plea,

the next part of that disingenuousness was he

didn’t tell you everything about what Rick

Cannon pled guilty to. He told you the part he

wanted you to hear because if you are going to

ascribe any importance to Rick Cannon pleading

guilty as a principal or an accomplice to the

homicide and the shooting, then you better

ascribe that same importance to this. Rick

Cannon pled guilty to Criminal Conspiracy with

Akeita Harden and Eddie Williams to commit

homicide. So if they want you to ascribe

importance to one, you got to follow along with

the other.

App’x 54 (emphasis added).

The jury would hear about the Criminal Information

that named Mr. Williams as a coconspirator yet another time

after it asked, about an hour and a half into deliberations, for

“the stipulation as to what Rick Cannon pled guilty to.” App’x

44. With the agreement of all counsel, the trial judge reread

each count. The jury then found Mr. Williams guilty of all

twenty charges, including murder in the first degree.

10

After denial of his direct appeal, Mr. Williams filed a

Post-Conviction Relief Act (PCRA) petition in July 2017,

arguing that his trial counsel rendered ineffective assistance for

“deliberately inform[ing] the jury that [Mr. Cannon] pled

guilty, . . . thus allowing the jury to hear that he pled guilty.”

Supp. App’x 77. The PCRA court found that Mr. Cannon’s

Criminal Information “never specifically or inferentially

identifie[d] [Mr. Williams] in the role of principal or

accessory” and therefore did not violate the Confrontation

Clause. Supp. App’x 88. The Superior Court affirmed the

PCRA court, and the Pennsylvania Supreme Court denied Mr.

Williams’s Petition for Allowance of Appeal on March 24,

2020.

In June 2020, Mr. Williams filed the petition at issue

pursuant to 28 U.S.C. § 2254. He alleged five instances of

ineffective assistance of counsel (IAC), including defense

counsel’s failure to object to the reading of Mr. Cannon’s

Criminal Information. Based on a review of the record, the

Magistrate Judge prepared a Report and Recommendation

(R&R). The R&R recommended denying Mr. Williams’s

petition with respect to his Confrontation Clause claims

because the Criminal Information “did not describe the factual

basis for the plea or serve a prosecutorial function. [It was] also

not created for the purpose of being introduced at trial.”

Williams v. Superintendent, SCI Greene, No. 1:20-cv-0908,

2021 WL 8315910, at *23 (M.D. Pa. Nov. 15, 2021). Thus, the

R&R concluded that the Criminal Information was neither

testimonial, nor did it violate the Sixth Amendment, and trial

counsel was therefore not ineffective for failing to object.

Mr. Williams filed objections to the R&R. The District

Court sustained only his objections to the Confrontation Clause

11

issue and the related IAC claim, concluding that Mr. Williams

was indeed entitled to relief, and vacated his conviction and

sentence. See Williams v. Superintendent, SCI Greene, No.

3:20-CV-908, 2022 WL 1321128, at *1 (M.D. Pa. May 3,

2022). The Commonwealth timely appealed the District

Court’s decision, and Mr. Williams timely cross-appealed.4

II

The District Court had jurisdiction under 28 U.S.C. §

2254, and we have appellate jurisdiction under 28 U.S.C. §§

1291 and 2253. “Because the District Court granted habeas

without an evidentiary hearing, we review de novo.” Maple v.

Albion, 19 F.4th 570, 571 (3d Cir. 2021). We review the state

court’s determinations on the merits for a decision “contrary

to” or an “unreasonable application” of clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d)(1). An

unreasonable application of federal law occurs where “the state

court unreasonably applies the correct legal rule to the

particular facts, unreasonably extends a legal principle to a new

context, or unreasonably refuses to extend the principle to a

new context where it should apply.” McMullen v. Tennis, 562

F.3d 231, 236 (3d Cir. 2009). There is a “presumption of

correctness” for determinations of a factual issue made by the

state court and the petitioner has the burden of rebutting said

presumption by “clear and convincing evidence.” 28 U.S.C. §

2254(e)(1).

4

A panel of this Court granted Mr. Williams’s request

for a certificate of appealability on the arguments he raised on

cross-appeal. Because we affirm the District Court’s grant of

relief, we need not address these arguments.

12

Meanwhile, “[a] state court’s determination that a claim

lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). Additionally, federal habeas relief must only be

granted where the petitioner demonstrates that the trial error

“had substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507

U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)).

III

Under the Sixth Amendment, all those criminally

accused “shall enjoy the right . . . to be confronted with the

witnesses against [them].” U.S. Const. amend. VI. As a result,

the Confrontation Clause prohibits the “admission of

testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). Here, there is no

dispute that Mr. Cannon was unavailable for trial and that Mr.

Williams had no prior opportunity to cross examine him. The

parties only disagree on whether Mr. Cannon’s Criminal

Information, as it was read to the jury, was testimonial.5 It was.

5

The Commonwealth seeks to avoid the substance of

this case by arguing that 1) Mr. Williams’s petition is untimely

because he somehow waived his opportunity to take advantage

of the prisoner mailbox rule by failing to assert it before the

PCRA court and 2) Mr. Williams failed to exhaust his

Confrontation Clause claim when he did not include the issue

in his allocatur request to the Pennsylvania Supreme Court. As

13

“Testimony” is typically a “solemn declaration or

affirmation made for the purpose of establishing or proving

some fact.” Id. at 51 (citation omitted). But “statements made

under circumstances that would lead an objective witness

reasonably to believe that the statement would be available for

use at a later trial are [also] testimonial.” United States v.

Hinton, 423 F.3d 355, 360 (3d Cir. 2005). Such statements

include “material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-

examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially; extrajudicial

statements . . . contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or

confessions.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,

310 (2009) (omission in original) (quoting Crawford, 541 U.S.

at 51–52); see also United States v. Moreno, 809 F.3d 766, 773-

74 (3d Cir. 2016). Accomplice confessions to the authorities

and plea allocutions are among the statements the Supreme

Court has enumerated as “plainly testimonial.” Crawford, 541

U.S. at 63–64.

The trial court’s presentation of Mr. Cannon’s Criminal

Information operated, for all intents and purposes, as a plea

allocution. In fact, at Mr. Cannon’s actual plea allocution, the

court read aloud each charge in the Criminal Information and

asked him if he wished to enter a guilty plea to each. When Mr.

Cannon answered affirmatively, he adopted, as his own, the

statements read from the Criminal Information. To put it

another way, the allegations related to charges set forth in the

Criminal Information became Mr. Cannon’s testimony. See,

neither claim has merit, we will proceed to the constitutional

issues raised by this appeal.

14

e.g., United States v. Porter, 933 F.3d 226, 229 (3d Cir. 2019)

(“Courts have long understood a guilty plea to be ‘a confession

of all the facts charged in the indictment, and also of the evil

intent imputed to the defendant.’” (quoting Class v. United

States, 138 S. Ct. 798, 804 (2018)). It was Mr. Cannon’s

admission of guilt to those charges, together with the

description of the charges themselves, as recited by the court,

that were therefore testimonial. See Crawford, 541 U.S. at 64

(collecting cases illustrating “plainly testimonial statements,”

including plea allocutions).

So it was in effect Mr. Cannon’s plea that was presented

to the jury as “what [Mr. Cannon] did” and what “[a]ll counsel

. . . agreed that he pled guilty to.” Supp. App’x 131. After

reading all twenty counts, nine of which named Mr. Williams

as a coconspirator, the court reiterated that “to each of those

Counts [Mr. Cannon] pled guilty.” Supp. App’x 138. Mr.

Cannon’s Criminal Information, in effect, became a plea

regardless of whether the trial court read the charges from the

plea allocution transcript or from the document itself. Indeed,

“[t]he trial judge telling the jury that [Mr.] Cannon ‘pled guilty

to all of these charges and I sentenced him thereafter’ would

surely be understood by the jury as [Mr.] Cannon having

admitted guilt, thus bringing the [c]ourt’s acknowledgement of

[his] statement of guilt so near to the introduction of a

confession as to make the two indistinguishable.” Williams,

2022 WL 1321128, at *19.

The Criminal Information’s testimonial and

confessional nature puts it squarely in the territory of Bruton,

where the Supreme Court held that an accused person is

deprived of their Sixth Amendment right to confrontation when

a non-testifying codefendant’s confession naming them as a

15

participant in the crime is introduced at their joint trial, despite

an instruction that the jury consider the statement only as to the

codefendant. Bruton v. United States, 391 U.S. 123, 135–36

(1968); see also Kirby v. United States, 174 U.S. 47, 54–55

(1899) (in prosecution for receipt of stolen property,

accomplices’ guilty pleas inadmissible to prove that property

received by the accused was “actually stolen from the United

States” because the accused lacked opportunity to cross

examine). The Supreme Court refined the Bruton rule in

Richardson v. Marsh, recognizing that “the Confrontation

Clause is not violated by the admission of a non-testifying

codefendant’s confession with a proper limiting instruction

when . . . the confession is redacted to eliminate not only the

defendant’s name, but any reference to his or her existence,”

481 U.S. 200, 211 (1987), and has since qualified Richardson

such that the use of “neutral references to some ‘other person’”

as opposed to “an obvious blank or the word ‘deleted’” is not

“directly accusatory” and thus does not violate Bruton. Samia

v. United States, 143 S. Ct. 2004, 2010, 2017 (2023). No such

redaction or modification occurred here.

As Bruton wisely warned, “[a] jury cannot segregate

evidence into separate intellectual boxes. It cannot determine

that a confession is true insofar as it admits that A has

committed criminal acts with B and at the same time

effectively ignore the inevitable conclusion that B has

committed those same criminal acts with A.” 391 U.S. at 131

(internal quotation marks omitted). So, too, does the trial

court’s presentation of Mr. Cannon’s guilty plea to crimes

involving Mr. Williams present the “inevitable conclusion”

that Mr. Williams committed the same or related criminal acts,

especially with the trial court’s endorsement of the Criminal

Information as “mak[ing] it perfectly clear to the jury what

16

[Mr. Cannon] did.” Supp. App’x 131. For these reasons, the

reading of the Criminal Information to the jury as evidence of

what Mr. Cannon pleaded guilty to violated Mr. Williams’s

right to confront the witness against him. It was “contrary to”

clearly established Supreme Court precedent, 28 U.S.C. §

2254(d)(1), which has specifically named plea allocutions and

confessions as “plainly testimonial.” Crawford, 541 U.S. at

63–64. We hold that no “fairminded jurist[] could disagree.”

Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at

664).6

IV

The aforementioned Bruton violation occurred in

response to, and was later encouraged by, Mr. Williams’s own

trial attorney. The District Court found that defense counsel’s

misrepresentation of the facts surrounding Mr. Cannon’s plea,

coupled with his failure to object to the reading of Mr.

6

Indeed, though not part of the established precedent

at the time of Mr. Williams’s PCRA petition, the Supreme

Court’s decision in Hemphill v. New York reinforces our view.

595 U.S. 140 (2022). Hemphill’s facts are surprisingly similar

to those we are faced with, though arguably less egregious

because the plea allocution read at that trial did not name the

accused. Id. at 144–45. There the Court held that a trial court’s

admission of portions of a non-testifying third party’s plea

allocution transcript to correct a “misleading impression”

created by the defense attorney’s opening statement violated

the Confrontation Clause. Id. at 143–44. The Court explained

that the Sixth Amendment “admits no exception for cases in

which the trial judge believes unconfronted testimonial hearsay

might reasonably be necessary to correct a misleading

impression. Courts may not overlook its command, no matter

how noble the motive.” Id. at 154.

17

Cannon’s Criminal Information on two occasions, amounted to

ineffective assistance of counsel. See Williams, 2022 WL

1321128, at *13–16. We agree.

The test for ineffective assistance of counsel is a well-

settled and firmly established one containing two components.

“First the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed . . . by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id.

Because Strickland’s test is “clearly established

[f]ederal law,” Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.

2010) (citation omitted), we consider whether the state court

decision involved an unreasonable application of Strickland or

an unreasonable determination of the facts. 28 U.S.C. §

2254(d).7 We apply a doubly deferential standard of review to

a Strickland claim, Knowles v. Mirzayance, 556 U.S. 111, 123

(2009), though whether “double deference” applies to

prejudice as well as performance is an open question in our

7

Pennsylvania employs a three-pronged test for

ineffective assistance claims. See Commonwealth v. Pierce,

527 A.2d 973, 975-77 (Pa. 1987). This test is not contrary

to Strickland. See Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir.

2005). “Thus, under § 2254(d)(1), the relevant question here is

whether the [state court’s] decision involved an unreasonable

application of Strickland.” Id.

18

Circuit. See Mathias v. Superintendent Frackville SCI, 876

F.3d 462, 477 n.4 (3d Cir. 2017). “The question ‘is not whether

a federal court believes the state court’s determination’ under

the Strickland standard ‘was incorrect but whether that

determination was unreasonable—a substantially higher

threshold.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465,

473 (2007)).

A

An attorney’s performance is deficient when it falls

below “an objective standard of reasonableness.” Strickland,

466 U.S. at 688. Here the PCRA court determined that Mr.

Williams’s ineffective assistance claim was without merit.

First, the PCRA court explained that a motion in limine to

redact the Criminal Information was not guaranteed to succeed.

Next, it concluded that although the trial strategy was not

successful, it did not amount to ineffective assistance where

counsel “had a reasonable basis for referencing [Mr.] Canon’s

guilty plea to the homicide” as a third-party culpability

defense. Williams, 2022 WL 1321128, at *13 (emphasis

added). Finally, the PCRA court determined that Mr. Williams

“failed to show that an alternative offered a substantially

greater prospect of success.” Id. We hold these determinations

to reflect an unreasonable application of Strickland for the

following reasons.

We first note that “strategic choices made as a result [of

substantial investigations into plausible lines of defense] ‘will

seldom if ever’ be found wanting.” Strickland, 466 U.S. at 681.

But defense counsel’s strategic choice to pursue a third-party

culpability defense is not the error here. Rather it was the

execution of that strategy by knowingly, “patently

misrepresent[ing] [Mr.] Cannon’s guilty plea” to homicide in

19

his opening statement and then allowing the trial court, without

objection, to read Mr. Cannon’s Criminal Information in its

entirety that was ineffective. Williams, 2022 WL 1321128 at

*14.8 Failure to raise a meritorious objection can constitute

deficient performance, especially when the Commonwealth

has not “provided any strategic explanation for trial counsel’s

failure” “[n]or are we able to identify one.” Preston v.

Superintendent Graterford SCI, 902 F.3d 365, 382 (3d Cir.

2018); see also Lambert v. Warden Green SCI, 861 F.3d 459,

471 (3d Cir. 2017) (“We recognize that the right of

confrontation and cross-examination is an essential and

fundamental requirement of the kind of fair trial which is this

country’s constitutional goal. Thus[,] a good argument exists

that [Mr.] Lambert presents a substantial claim that it would be

objectively unreasonable for trial counsel to allow the

Commonwealth to violate this right by failing to request a

limiting instruction pursuant to Richardson.” (citation and

internal quotation marks omitted)).

To “cur[e]” the misrepresentation, however, defense

counsel acquiesced to the trial court reading, not just the

criminal homicide charge to which Mr. Cannon pleaded guilty,

but the Criminal Information in its entirety, including nine

counts naming Mr. Williams as a coconspirator. Supp. App’x

129. The reading of those nine counts clearly violated Bruton.

And contrary to the PCRA court’s conclusions, defense counsel

likely would have prevailed had he objected to its reading,

moved to confine the reading to just the first count, or sought

8

We need not determine whether the initial

misrepresentation constituted error as Mr. Williams concedes

that he was not prejudiced by defense counsel’s opening

statement.

20

a redaction of any information identifying Mr. Williams. Yet

we need not rule here on the adequacy of trial tactics that

defense counsel failed to employ. The PCRA court’s

determination that a motion to restrict the language of the

Criminal Information was not certain to succeed was a clear

misapplication of federal law, and counsel’s failure to object on

two occasions to the reading of the Criminal Information was

objectively unreasonable.

The PCRA court’s decision also hinged on “an

unreasonable determination of the facts in light of the evidence

presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d).

It assumed the only charge that was read to the jury and that

was material to the court’s analysis is Count 1 of Mr. Cannon’s

Criminal Information. Indeed, we agree that reading only

Count 1, which did not identify Mr. Williams, would have

corrected the misrepresentation in defense counsel’s opening

statement. But reading the entire twenty-count Criminal

Information, nine counts of which named Mr. Williams as a

coconspirator, went far beyond clarifying for the jury that Mr.

Cannon pleaded guilty to Criminal Homicide as a principal

and/or accomplice.

To be clear, competent counsel need not be flawless and

“may not be faulted for a reasonable miscalculation or lack of

foresight or for failing to prepare for what appear to be remote

possibilities.” Harrington, 562 U.S. at 110 (emphasis added).

But Mr. Williams’s defense counsel did not reasonably

miscalculate the Commonwealth’s prosecution strategy to

introduce Mr. Cannon’s Criminal Information. At the PCRA

evidentiary hearing, he even admitted as much. See Supp.

App’x 360–61 (“In retrospect, I should have tried to redact the

information so to speak so as to have the homicide charge read

21

but not the conspiracy charge read because the conspiracy

charge obviously implicates people other than Mr. Cannon.”

(emphasis added)). Instead, he had the opportunity to object to

or ask for a redaction of that Criminal Information but chose

not to. Moreover, the misrepresentation that the

Commonwealth sought correction of was defense counsel’s

statement that Mr. Cannon “told Judge Kline, yes, I killed that

man.” Supp. App’x 121. That mischaracterization relates to the

homicide charge and would have been cured by reading only

Count 1 of Mr. Cannon’s Criminal Information, which made

no reference to Mr. Williams. For defense counsel to allow the

other counts to be read without the opportunity to cross-

examine Mr. Cannon about Mr. Williams’s involvement in the

shootings was objectively unreasonable.

For these reasons, we hold that Mr. Williams satisfied

the deficiency prong of Strickland when his attorney failed to

object, request redactions, or request limiting instructions to

the trial court’s reading of Mr. Cannon’s entire Criminal

Information to the jury.

B

We next consider whether defense counsel’s failure to

object to the reading of the entire Criminal Information was

“so serious as to deprive [Mr. Williams] of a fair trial.”

Strickland, 466 U.S. at 687. Such prejudice exists when “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. Because a reasonable probability is

one “sufficient to undermine confidence in the outcome,” id.,

the Strickland prejudice standard is not “stringent”—it is, in

fact, “less demanding than the preponderance standard.”

Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (citing Baker

22

v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999)); see also Woodford

v. Visciotti, 537 U.S. 19, 22 (2002) (“[Strickland] specifically

rejected the proposition that [one] had to prove it more likely

than not that the outcome would have been altered.”).

The PCRA court concluded that Mr. Williams’s claim

lacked merit in part because “in light of the cumulative

evidence presented at trial, including the living victim’s

identification of [Mr. Williams], [it found] that [he had] failed

to show that an alternative offered a substantially greater

prospect for success.” Supp. App’x 88-89 (emphasis added).

This language addresses prejudice because it refers to the

weight and degree of other evidence in the record in

comparison to evidence of Mr. Cannon’s guilty plea. However,

it incorrectly quotes the Pennsylvania standard for

performance. See id. at 81 (“Where matters of strategy and

tactics are concerned, a finding that a chosen strategy lacked a

reasonable basis is not warranted unless it can be concluded

that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.”

(emphasis added) (quoting Commonwealth v. Spotz, 84 A.3d

294, 312 (Pa. 2014))). Thus, it is unclear whether the PCRA

court actually addressed prejudice under Strickland with

respect to the Criminal Information.

If the PCRA Court did not address prejudice, our review

of that issue would be de novo. See, e.g., Abdul-Salaam v. Sec’y

Pa. Dep’t of Corr., 895 F.3d 254, 269 (3d Cir. 2018) (“Because

the Commonwealth courts did not reach the prejudice prong of

the analysis, our review is de novo.”). But assuming arguendo

that it did address prejudice, our review is nonetheless de novo

because the standard it used was contrary to clearly established

federal law. See Williams v. Taylor, 529 U.S. 362, 405–06

23

(2000) (declaring as contrary to Strickland a state court’s

rejection of an ineffective assistance claim “on the grounds that

the prisoner had not established by a preponderance of the

evidence that the result of his criminal proceeding would have

been different” (emphasis added)); Rogers v. Superintendent

Greene SCI, 80 F.4th 458, 464-65 (3d Cir. 2023) (holding as

contrary to federal law the state court’s requirement that

petitioner show “the outcome would have been different”);

Hummel v. Rosemeyer, 564 F.3d 290, 304-05 (3d Cir. 2009)

(similar). By requiring Mr. Williams to show a “substantially

greater prospect for success,” the PCRA court demanded a

higher standard than what Strickland requires, which is only “a

reasonable probability that . . . the result of the proceeding

would have been different.” Strickland, 466 U.S. 694.9

Our de novo review of the prejudice prong reveals the

following. First, in response to Mr. Williams’s counsel’s

9

To be sure, Pennsylvania’s “substantially greater

prospect” standard is appropriate for performance, since we

have repeatedly endorsed Pennsylvania’s three-part IAC test as

consistent with Strickland when properly applied. See, e.g.,

Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 391 (3d

Cir. 2020) (“This Court has repeatedly recognized that

Pennsylvania’s test for ineffective assistance of counsel is

consistent with the Supreme Court’s decision in Strickland

because it requires findings as to both deficient performance

and actual prejudice.” (internal quotation marks omitted)).

However, Strickland’s prejudice prong is “easier to fulfill” than

its performance prong and even “less demanding than the

preponderance standard.” McKernan v. Superintendent

Smithfield SCI, 849 F.3d 557, 567 (3d Cir. 2017) (internal

quotation marks omitted).

24

decisions, the Commonwealth in its closing argument

encouraged the jury to draw the substantive inference that Mr.

Williams was guilty of conspiracy based on Mr. Cannon’s

admission despite there being insufficient direct evidence of an

actual agreement between Mr. Williams and Mr. Cannon to

commit the homicide. See Lambert, 861 F.3d at 472 (finding

Bruton error prejudicial where there was no direct evidence of

an agreement between the accused and an alleged

coconspirator and the prosecutor encouraged the jury to draw

inference of guilt based on a coconspirator’s statement); Brown

v. Superintendent Greene SCI, 834 F.3d 506, 521 (3d Cir. 2016)

(finding a Bruton violation prejudicial when “the unmasking

of [Mr.] Lambert happened during a part of the closing

arguments when the prosecutor was asking the jury to find

[Mr.] Garcia guilty”); see also Adamson v. Cathel, 633 F.3d

248, 261 n.12 (3d Cir. 2011) (suggesting that use of a statement

admitted in violation of Bruton “for their truth in order to

establish [defendant’s] guilt” is relevant to the harmless error

determination).

Second, the jury note requesting that the Criminal

Information be reread suggests that the jury was influenced by

Mr. Cannon’s plea during deliberations. See Heath v. Jones,

941 F.2d 1126, 1134 (11th Cir. 1991) (“Actual prejudice occurs

when the prejudice actually enters the jury box and affects the

jurors.”). Making matters worse, the jury requested to rehear

the Criminal Information shortly after commencing

deliberations and reached a verdict after only a few additional

hours of deliberation. Cf. Johnson v. Superintendent Fayette

SCI, 949 F.3d 791, 805 (3d Cir. 2020) (“holding that the length

of jury deliberations may be one consideration in assessing the

strength of the prosecution’s case”).

25

Third, there are serious reliability concerns with much

of the Commonwealth’s trial evidence. The Commonwealth’s

primary witness, Mr. Crawford, was shot in the head and could

testify only by typing “yes” or “no” into a cell phone. Not only

does this raise serious concerns about Mr. Crawford’s

diminished capacity, his testimony itself was often equivocal.

For example, he could not remember whether Ms. Harden was

in or outside the apartment when he was shot. He also testified

inconsistently regarding who shot Mr. Ortiz and who removed

his watch and ring. His testimony was also inconsistent with

the Commonwealth’s own evidence: Mr. Crawford testified

that Mr. Ortiz was shot first, but the Commonwealth’s own

forensic DNA analyst testified that Mr. Ortiz “was the last

person shot” with the sole murder weapon. We also note that

any evidence of motive from Ms. Harden’s pretrial

statements—to the effect that Mr. Williams planned to rob and

kill Mr. Crawford—would be substantively inadmissible as to

his guilt.

Thus, considering the quality and not just the quantity

of the Commonwealth’s evidence, the introduction and

proliferation of Mr. Cannon’s Criminal Information is much

more likely to have had the prejudicial effect of “improperly

corroborating the[] less-than-credible [evidence], making it

more likely that the jury would set aside their doubts in favor

of a conviction.” Id. at 803-04 (finding prejudice where “the

prosecution’s two key witnesses were substantially impeached

and their testimony was contradicted through other witness

testimony” and thus the improperly admitted confession “gave

significant weight to [the less than credible] testimony that [the

accused] was the shooter and validated [a] dubious police

statement”); see Washington v. Sec’y Pa. Dep’t of Corr., 801

F.3d 160, 171 (3d Cir. 2015) (improperly admitted confession

26

when “viewed in tandem” with coconspirator’s “less-than-

credible” statement had a “corroborative effect” that likely

affected the jury’s verdict, thus demonstrating actual

prejudice); see also Brown, 834 F.3d at 520 (testimony from

the Commonwealth’s primary witness “undercut his reliability

and usefulness” because “[b]y his own admission, he was

impaired from marijuana and Xanax” and “had a powerful

motive to implicate” the accused); Adamson, 633 F.3d at 261

(admission of improperly redacted/limited confession was not

harmless because “[t]here were no eyewitness statements

identifying [the accused] as taking part in the robbery, nor was

there any physical evidence tying him to the robbery”);

Vazquez v. Wilson, 550 F.3d 270, 282-83 (3d Cir. 2008) (Bruton

error was not harmless because the accused “never confessed

to being a shooter, and there was no witness at the trial who

said that he saw [him] fire a weapon” and so “although there

was evidence at trial incriminating [him] . . . , it was not so

compelling that it overcame the Bruton error”).

Cumulatively, these concerns lead us to believe that Mr.

Williams has successfully shown that the reading of Mr.

Cannon’s entire and unredacted Criminal Information had a

“substantial and injurious effect or influence in determining the

jury’s verdict,” Brecht, 507 U.S. at 637, satisfying Strickland’s

prejudice prong.

V

The judgment of the District Court will therefore

be affirmed, and the case will be remanded for the District

Court to issue a writ of habeas corpus.

27