Fischetti v. Johnson

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Precedential or Non-Precedential: Precedential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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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.

18