Samuel Randolph, IV v. Secretary Pennsylvania Departm

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 20-9003

__________

SAMUEL RANDOLPH

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF

CORRECTIONS; SUPERINTENDENT GREENE SCI; and

SUPERINTENDENT ROCKVIEW SCI,

Appellants.

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No. 1:06-cv-00901)

District Judge: Honorable Christopher C. Conner

__________

Argued April 26, 2021

Before: CHAGARES, KRAUSE, and RESTREPO,

Circuit Judges

(Filed: July 20, 2021)

__________

Ryan H. Lysaght [ARGUED]

Dauphin County Office of District Attorney

101 Market Street

Harrisburg, PA 17101

Counsel for Appellants Secretary Pennsylvania Depart-

ment of Corrections, Superintendent Greene SCI, and Su-

perintendent Rockview SCI

Jennifer Chiccarino

Aren Adjoian [ARGUED]

Federal Community Defender Office for the Eastern District

of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellee Samuel Randolph

__________

OPINION OF THE COURT

__________

RESTREPO, Circuit Judge.

The week before his state capital trial, Samuel Randolph

hired Samuel Stretton, his counsel of choice, to replace Allen

Welch, his court-appointed lawyer. Once he was hired, Stret-

ton, on the Thursday before Monday’s jury selection, entered

his appearance and asked the trial court if it could delay the

start of trial until the following month. Citing previous delays

and the proximity to trial, the trial court denied that request.

Stretton next asked if the trial court could delay the start of

trial by just a couple of days. But the court denied that re-

quest, too. Finally, Stretton asked if the trial court could push

back Monday morning’s jury selection by just three hours so

that he could attend a previously scheduled, mandatory en-

gagement in the morning and then pick Randolph’s jury in the

afternoon. As it had twice before, the trial court denied Stret-

ton’s request and set jury selection for Monday morning.

Then, when Stretton did not appear for jury selection, the

court denied Stretton’s motion for a continuance and rejected

his entry of appearance. Randolph therefore had no choice but

to proceed to trial represented by his court-appointed lawyer.

2

The trial ended in convictions on all counts, including two

counts of first-degree murder, and the trial court sentenced

Randolph to death.

On direct appeal, the Pennsylvania Supreme Court upheld

Randolph’s convictions and sentence, and rejected Ran-

dolph’s claim that the trial court violated his Sixth Amend-

ment right to the counsel of his choice. Years later, on federal

habeas review, the District Court determined that the Penn-

sylvania Supreme Court’s decision unreasonably applied

clearly established federal law, warranting de novo review of

Randolph’s Sixth Amendment claim. Conducting that review,

the District Court concluded that Randolph suffered a Sixth

Amendment violation, a structural error not subject to harm-

less error analysis. The Court therefore granted Randolph’s

petition for a writ of habeas corpus and gave the state ninety

days to retry Randolph or release him, pending the resolution

of any appeal. The Commonwealth now appeals and, for the

reasons that follow, we will affirm.1

I. BACKGROUND

Although this case has a long procedural history, we re-

count here only the handful of events in the months leading

up to Randolph’s trial that are relevant to his Sixth Amend-

ment choice-of-counsel claim. Those facts include the trial

court’s appointment of counsel; the degradation of the rela-

tionship between Randolph and his court-appointed counsel;

Randolph’s consideration of proceeding pro se; the attempt

by Randolph’s counsel of choice to continue the trial to allow

him to represent Randolph; and the trial court’s decision not

to delay the start of jury selection, which had the effect of

preventing Randolph from being represented by the counsel

of his choice.

1

Throughout the opinion we refer to the appellants—the Sec-

retary of the Pennsylvania Department of Corrections, the

Superintendent of SCI Greene, and the Superintendent of SCI

Rockview—collectively as the Commonwealth.

3

A. The state trial court appoints counsel for Randolph

In July 2002, in the Court of Common Pleas of Dauphin

County, Pennsylvania, Randolph was arraigned on two counts

of first-degree murder, one count each of attempted murder

and conspiracy to commit murder, five counts of aggravated

assault causing serious bodily injury, and several other lesser

charges. In line with Pennsylvania law governing punishment

for first-degree murder, the government informed Randolph

that it would seek the death penalty.

Two attorneys, Anthony Thomas and Roger Laguna, were

present at Randolph’s July 2002 arraignment. But neither was

willing or able to represent Randolph on the capital charges.

Thomas attended at the request of Randolph’s family but did

not enter a formal appearance. He had been a member of the

bar for just two years and had never tried a homicide case, let

alone a capital one. Roger Laguna had been handling Ran-

dolph’s less serious charges. But he too felt unprepared to try

the capital case. So he asked the trial court to appoint substi-

tute counsel. The trial court obliged. The following month,

the trial court appointed Allen Welch to lead Randolph’s de-

fense, and set trial for February 2003.

B. Randolph’s trial is delayed and his relationship with

appointed counsel deteriorates

Randolph’s relationship with Welch began to deteriorate

soon after Welch’s appointment. At a January 3, 2003, pretri-

al conference, Randolph told the court that he and Welch

were at odds about trial strategy. Welch wanted Randolph to

submit to psychological evaluations—perhaps to pursue an

insanity defense, see App. 614, or at least to gather evidence

of circumstances mitigating capital punishment—but Ran-

dolph staunchly refused. Additionally, Randolph wanted to

press certain arguments (relating, it seems, to prosecutorial

misconduct and constitutional violations) that he claimed

Welch was not even entertaining.

Randolph also expressed to the court his dissatisfaction

with Welch’s commitment to his case. Randolph told the

4

court that Welch had visited him just once in the five months

since Welch’s appointment, App. 614, and that Welch had

told him he only took the appointment as a “favor” to the

county’s court administrators, App. 615. Welch assured the

court that he was committed to Randolph’s defense. He re-

minded the court that Randolph’s criminal case was complex

and claimed he had only recently received the bulk of Ran-

dolph’s case file from Randolph’s previous counsel and still

had not received portions of Randolph’s grand jury transcripts

from the Commonwealth.

Despite Welch’s assurances, Randolph was convinced

Welch did not have his best interests at hand. Indeed, Ran-

dolph’s relationship with Welch had deteriorated to such a

degree that Randolph asked the court whether he could repre-

sent himself pro se. App. 618 (“Your Honor, you did say that

I did have an option . . . to go pro se if I would want to,

right?”). The court confirmed that “[t]hat’s a right you have”

but “would just strongly, strongly tell you not to do that.”

App. 618. Welch agreed, acknowledging that Randolph “has

an absolute right to proceed pro se,” but “plead[ed] with him

with every fiber of my being not to do that.” Id. Sensing that

proceeding pro se would be unwise, Randolph then asked if

Thomas could represent him, as well. After a brief sidebar,

Thomas agreed to participate in Randolph’s defense. App.

617-18.

By the end of the hearing, Randolph, Welch, and the court

appear to have reached a tenuous compromise. With Thomas

assisting Welch, Randolph begrudgingly accepted Welch as

lead counsel, and Welch agreed to focus more of his energy

on Randolph’s case. See App. 613. But because Welch was

nowhere near prepared to try the case, the court agreed to de-

lay the start of trial until March 10, 2003.

C. Another delay, further acrimony, and Randolph again

requests to proceed pro se

Trial did not take place in March, however. Welch’s

mother became critically ill and was hospitalized. Welch

5

therefore moved for another continuance. The trial court

granted that request and reset trial for May 5, 2003.

With the trial delayed, the trial court, later in March, held

another conference to dispose of various pretrial motions filed

by the parties. The hearing marked a further deterioration in

Randolph’s relationship with Welch. For example, near the

end of the conference, Randolph asked the court what his

speedy trial rights were and whether and how he could effec-

tuate them. As part of its response, the trial court pointed out

that Randolph already had filed his pretrial motions. Ran-

dolph claimed he had no idea what motions had been filed on

his behalf or what those motions contained, and again com-

plained that Welch refused to visit him. App. 763 (“I don’t

even know what motion was filed on my [behalf]—[Welch]

won’t come see me. He won’t tell me or give me a copy of

nothing. I don’t even know what’s going on, Your Honor.”).

Welch conceded that he did not share the motions with Ran-

dolph prior to their filing and that he had only visited Ran-

dolph in prison once. See id. Randolph again asked to repre-

sent himself pro se. Id. (“To settle all this, I would like to go

pro se on the record right now.”). The trial court refused to

grant Randolph’s request then-and-there, and instead told

Randolph to contemplate his decision and, if he wished, to

file a motion articulating the reasons supporting his request.

The following week, the trial court held another pretrial

conference to consider Randolph’s request to proceed pro se.

At the conference, Randolph complained of “multiple defi-

ciencies concerning Mr. Welch’s performance,” and “ma[d]e

an oral motion to change [his] appointed counsel.” App. 765.

The trial court denied Randolph’s motion, telling Randolph

that “[t]he Court appoints counsel for you,” and that it “[did

not] see anything in [Welch’s] performance that would even

merit that request or for me to grant that request.” Id.

Randolph and the trial court then discussed Randolph’s

request to proceed pro se. Randolph asked the court whether,

if he were to proceed pro se, he could have daily access to the

prison’s law library. (The trial court said it would ask the

6

prison’s warden to grant Randolph more time in the library,

but that it could not guarantee any result.) Randolph then

asked who would serve as standby counsel should he proceed

pro se. The court told Randolph that it would invite Thomas

to be standby counsel but, if Thomas declined, Welch would

serve in the role. Randolph protested, but the court made clear

that Randolph had only two options: “Do you want to proceed

pro se with standby counsel as I’ve described or do you want

Mr. Welch to continue to represent you?” App. 769. With

those as his choices, Randolph decided against proceeding

pro se and Welch continued as Randolph’s counsel.

D. Randolph hires Samuel Stretton, and Stretton enters

his appearance and moves to continue the trial

Randolph’s fortunes changed the week before trial. That

week, through the sale or impending sale of a family asset,

Randolph secured the funds necessary to replace Welch with

his choice of counsel, Samuel Stretton. Randolph had first

contacted Stretton in January 2003 but could not afford to

hire him. With Stretton convinced that Randolph had secured

the requisite funds, Stretton, on the Wednesday before Mon-

day’s start of trial, entered his appearance and moved to con-

tinue the trial until the following month.

The next day, the court convened a conference call with

the parties to discuss Stretton’s entry of appearance and con-

tinuance motion. On the call, Stretton explained the bases for

his continuance request. First, he observed that he had just

been hired and would need at least some time to become fa-

miliar with the case. Second, he explained that throughout the

next week (the first week of the trial) he had numerous con-

flicts, including an inescapable one Monday morning, the

morning of jury selection.

Stretton also outlined the services he could offer Randolph

that Welch could not. Stretton emphasized that he “could[]

hire the experts or the investigators that are needed in a capi-

tal case: . . . the mitigation expert, the psychiatrist, the school

records and people, everything else you need when you try

7

these cases,” App. 627, whereas Welch, facing significant fi-

nancial limitations as a court-appointed attorney, likely could

not, see App. 628 (Welch noting that “[t]here also could be no

denying that the restrictions being economically placed on me

by the court with the fight we had over just getting some in-

vestigative money, to say nothing about not being able to . . .

[get] the money for the types of experts Mr. Stretton will be

able to get involved in the thing.”).

Welch supported Randolph’s desire to switch lawyers.

Welch said that he would “hate” to see the case proceed to

trial “as unhappy as [Randolph] is with what I’m doing for

him and with another attorney waiting to jump into the case.”

App. 626. Welch also “urge[d] [the court] to proceed careful-

ly,” since “the right to counsel of your choice is pretty darn

well etched in stone.” App. 626. Welch was concerned that,

“if we hastily take this to trial, . . . [we] will go through it all

again at some point down the road.” Id.

The state opposed Stretton’s continuance motion. It

claimed that Randolph “tarried a great deal” in his attempt to

hire Stretton. App. 627. The state’s lawyer also claimed that

witnesses he was planning on calling had been “bribed not to

testify by Mr. Randolph or his representatives,” id., and he

thought further delay would allow Randolph more time to

carry out that scheme.

The trial court said its “inclination” was to deny Stretton’s

continuance and proceed with jury selection on the morning

of Monday, May 5. App. 627. The court noted that the case

“got continued once before” and that “[t]his is the second

time we have brought in a special jury panel for this case.” Id.

And while the court appeared receptive to delaying the penal-

ty portion of the trial so that Stretton could retain and deploy

experts, it appeared unwilling to delay the start of jury selec-

tion. App. 627 (Court: “[M]y inclination is not to continue the

case in terms of selecting the jury on Monday, Tuesday,

Wednesday, however long that takes. The plan has always

been to go into the trial stage at that point.”).

8

Welch then jumped in. He suggested that the court’s rea-

son for not delaying the start of jury selection was easily

fixed—the summoned jurors “could be called with a phone

call and called off.” App 628. Welch also thought the court’s

proposal to allow him to pick the jury and try the guilt phase

and then let Stretton try the penalty phase was not a “viable

and wise way to proceed.” App. 628. And Welch again raised

the constitutional issue. He asked the trial court what the state

appellate courts would think about the trial court’s reasons for

denying Stretton’s motion for a continuance or Randolph the

counsel of his choice. See id.

The court was not moved. It resisted Welch’s characteri-

zation that its tentative decision to deny the continuance “was

based on economics and the jury panel.” App. 628. It claimed

it was “weighing very weighty matters on behalf of Mr. Ran-

dolph,” including his right to counsel, against countervailing

interests of the state, including the prompt resolution of the

case. Id. The court noted that Randolph’s case was “old” and

had “been around,” and that “we have dealt with all the pre-

trial matters, and we are ready to go to trial.” App. 629.

Stretton tried one last time to convince the court to delay

Monday’s jury selection. He asked the court whether it had

“any flexibility,” even “like a day or two.” Id. The trial court

refused to budge. It said the “[jury] selection process is pretty

much etched in stone.” Id. But it said it “certainly would con-

sider” including time between the end of jury selection and

the beginning of trial so that Stretton had some time to pre-

pare. Id. The conference ended soon thereafter with jury se-

lection still scheduled for the morning of Monday, May 5.

E. The trial begins, and begins without Stretton

The parties convened in court Monday morning before ju-

ry selection to clarify Randolph’s representation. The on-the-

record conversation began at 10:37 a.m. App. 636. The court

recounted an off-the-record conversation it had with the par-

ties the previous Friday. In that conversation, Stretton had

modified his continuance request, asking for Monday’s 9:00

9

a.m. jury selection to be postponed only until 12:00 p.m. That

way, Stretton could pick Randolph’s jury and still attend his

previously scheduled engagement in the morning.

The court noted that it had instead agreed to move jury se-

lection back one hour, from 9:00 a.m. to 10:00 a.m. App. 637.

It also noted that it “fully expected to see” Stretton or some-

one on his behalf that morning “to begin the jury selection

process.” Id. When Stretton did not appear by 10:00 a.m., the

trial court formally denied Stretton’s continuance motion,

App. 637, and his entry of appearance, App. 638, indicating

only that it would entertain Stretton’s participation if he re-

filed his entry of appearance at a later date.

Welch tried once more to persuade the court to delay jury

selection so that Stretton could pick the jury and try the case.

He told the court the continuance request was “an appropriate

request given the fact that I’m court-appointed, that I have at

this point absolutely a complete breakdown of communica-

tion with my client, which is largely why Mr. Thomas is here,

. . . he acts as a translator.” App. 638.

The trial court held firm, denied Welch’s last overture,

and called for the jury panel. The prospective jurors entered

the courtroom at 11:10 a.m., App. 640, fifty minutes before

the time that Stretton would have been available.

***

After two days of jury selection and a four-day trial, the

jury convicted Randolph on all counts, including the capital

murder charges. The court permitted Randolph to proceed pro

se during the penalty phase. Randolph refused, however, to

testify or present any mitigation evidence. The jury found two

aggravating circumstances and no mitigating ones and re-

turned a verdict of death on both capital counts.

Stretton represented Randolph at the formal sentencing

proceeding. Stretton moved for a new trial and asked that

Randolph’s sentences be vacated based, respectively, on the

trial court’s failure to grant a continuance and its alleged error

10

in allowing Randolph to represent himself at the penalty

phase and present no mitigating evidence. Stretton argued that

the trial court’s denial of the continuance he requested violat-

ed Randolph’s Sixth Amendment right to choice of counsel

and his Fourteenth Amendment right to due process, as well

as similar protections under the Pennsylvania Constitution.

The trial court denied Stretton’s motions for relief and sen-

tenced Randolph to death.

F. The Pennsylvania Supreme Court rejects Randolph’s

Sixth Amendment claim on direct appeal

Because Randolph had been sentenced to death, his appeal

went directly to the Pennsylvania Supreme Court. Among

other claims, Randolph argued that the trial court’s denial of

Stretton’s motion for a continuance had violated his Sixth

Amendment rights. The Pennsylvania Supreme Court ad-

dressed and rejected that claim, as follows:

[Randolph] argues the trial court erred in denying him

the right to have private counsel represent him during

trial and in denying a continuance to enable private

counsel to represent him. He contends he sought pri-

vate counsels [sic] representation because there was a

major breakdown in communication between him and

court-appointed counsel and because court-appointed

counsel was unprepared, rather than for purposes of

delay.

...

We have held, however, that the constitutional right to

counsel of one’s own choice is not absolute. Rather,

“the right of the accused to choose his own counsel, as

well as the lawyer’s right to choose his clients, must be

weighed against and may be reasonably restricted by

the state’s interest in the swift and efficient administra-

tion of criminal justice.” Thus, this Court has ex-

plained that while defendants are entitled to choose

their own counsel, they should not be permitted to un-

reasonably “clog the machinery of justice” or hamper

11

and delay the state’s efforts to effectively administer

justice.

...

[Randolph’s] case had already been continued twice at

the request of court-appointed counsel. [Randolph]

waited until May 1, 2003, two business days before

trial was scheduled to commence, to apprise the trial

court of his desire to have private counsel represent

him, even though he had first contacted private counsel

about representation in January, 2003. The trial court

denied [Randolph’s] request for a continuance but

gave private counsel the opportunity to participate and

was willing to accommodate his schedule and allow

him time to prepare following jury selection. However,

private counsel never showed up at trial or during sen-

tencing. In considering the motion for continuance, the

trial court weighed [Randolph’s] right to counsel of his

choice against the state’s interest in the efficient ad-

ministration of justice. We find no abuse of discretion

in the trial court’s refusal to grant [Randolph’s] request

for a continuance.

Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005)

(all citations omitted).

The United States Supreme Court denied Randolph’s peti-

tion for certiorari. Randolph v. Pennsylvania, 547 U.S. 1058

(2006). Through counsel, Randolph then initiated federal ha-

beas proceedings in the District Court.2 As amended, Ran-

dolph’s habeas petition advanced fifteen claims, including the

Sixth Amendment choice-of-counsel claim rejected by the

Pennsylvania Supreme Court. The District Court held an evi-

2

Randolph also initiated proceedings in state court under

Pennsylvania’s Post Conviction Relief Act. Those proceed-

ings ended in withdrawal of all claims and are otherwise ir-

relevant to the issues on appeal here. So we do not discuss

them further. And there is no dispute that Randolph exhausted

this claim. See 28 U.S.C. § 2254(b).

12

dentiary hearing at which multiple witnesses testified, includ-

ing Stretton and Thomas. Afterward, the parties briefed their

positions.

The District Court’s decision followed. In it, the District

Court addressed only the choice-of-counsel claim, as the dis-

position of that claim obviated the need to address any others.

The District Court determined that while the Pennsylvania

Supreme Court did not misstate the governing law, its appli-

cation of that law was objectively unreasonable given the

facts of Randolph’s case; that its decision, therefore, was not

entitled to deference under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”); and that Randolph’s

Sixth Amendment claim must be reviewed de novo.

Reviewing the claim de novo, the District Court concluded

that the state trial court violated Randolph’s Sixth Amend-

ment right to choice of counsel. And it held that such a viola-

tion constituted structural error, that is, error immune from

harmless error analysis. Consequently, the District Court

granted Randolph a writ of habeas corpus, vacated Ran-

dolph’s convictions and sentence, directed the Common-

wealth to retry or release Randolph within ninety days, and

stayed the execution of the writ until thirty days after final

disposition of any appeal. This timely appeal by the Com-

monwealth followed.

II. COMMONWEALTH’S APPEAL

The Commonwealth appeals the District Court’s grant of

habeas corpus on Randolph’s convictions and sentence based

on his Sixth Amendment choice-of-counsel claim. For the

reasons set forth below, we will affirm the District Court.

A. Jurisdiction and Standard of Review

The District Court had jurisdiction over Randolph’s peti-

tion for a writ of habeas corpus under 28 U.S.C. §§ 2241 and

2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and

2253. Our review of the District Court’s order granting Ran-

dolph habeas relief is two-fold: We review its legal conclu-

13

sions and any factual inferences it drew from the state court

record de novo and, because it conducted an evidentiary hear-

ing, its new factual findings for clear error. Mathias v. Super-

intendent Frackville SCI, 876 F.3d 462, 475 (3d Cir. 2017);

Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007); Hakeem

v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). The Common-

wealth was not required to obtain a certificate of appealability

prior to seeking review of the District Court’s decision to

grant Randolph’s habeas petition. See Fed. R. App. P.

22(b)(3); Slutzker v. Johnson, 393 F.3d 373, 375 n.1 (3d Cir.

2004).

Under AEDPA, Randolph, to prevail on his habeas peti-

tion, carried the burden of demonstrating that the Pennsylva-

nia Supreme Court’s decision was “‘contrary to’ federal law

then clearly established in the holdings of [the Supreme]

Court,” “‘involved an unreasonable application of’ such law,”

or “‘was based on an unreasonable determination of the facts’

in light of the record before the state court.” Harrington v.

Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C.

§ 2254(d)(1), (2)).

“A state court decision is ‘contrary to’ clearly established

federal law if it ‘applies a rule that contradicts the governing

law set forth’ in Supreme Court precedent, or if it ‘confronts a

set of facts that are materially indistinguishable from a deci-

sion of [the Supreme] Court and nevertheless arrives at a re-

sult different’ from that reached by the Supreme Court.” Eley

v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Wil-

liams v. Taylor, 529 U.S. 362, 405-06 (2000)) (citation omit-

ted) (alteration in original); see also Travillion v. Superinten-

dent Rockview SCI, 982 F.3d 896, 901 (3d Cir. 2020).

By contrast, a state court decision reflects an “unreasona-

ble application of such law” only “where there is no possibil-

ity fairminded jurists could disagree that the state court’s de-

cision conflicts with [the Supreme] Court’s precedents,” a

standard the Supreme Court has advised is “difficult to meet”

because it was “meant to be.” Richter, 562 U.S. at 100, 102.

As the Supreme Court has cautioned, an “unreasonable appli-

14

cation of federal law is different from an incorrect application

of federal law,” id. at 101 (quoting Williams, 529 U.S. at

410), and whether we “conclude[] in [our] independent judg-

ment that the relevant state-court decision applied clearly es-

tablished federal law erroneously or incorrectly” is irrelevant,

as AEDPA sets the bar higher. Williams, 529 U.S. at 411.

Finally, “a decision adjudicated on the merits in a state

court and based on a factual determination will not be over-

turned on factual grounds unless objectively unreasonable in

light of the evidence presented in the state-court proceeding.”

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also

Lambert v. Blackwell, 387 F.3d 210, 234-35 (3d Cir. 2004).

In conducting this inquiry, we may not deem state-court fac-

tual determinations unreasonable “merely because [we]

would have reached a different conclusion in the first in-

stance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015)

(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, §

2254(d)(2) demands we accord the state trial court substantial

deference. So if “‘[r]easonable minds reviewing the record

might disagree’ about the finding in question, ‘on habeas re-

view that does not suffice to supersede the trial court’s . . . de-

termination.’” Wood, 558 U.S. at 301 (quoting Rice v. Col-

lins, 546 U.S. 333, 341-42 (2006)). Yet “[e]ven in the context

of federal habeas, deference does not imply abandonment or

abdication of judicial review,” and “does not by definition

preclude relief.” Miller-El, 537 U.S. at 340.

Here, as previously described, the District Court declined

to apply AEDPA deference in reviewing the Pennsylvania

Supreme Court’s decision to reject Randolph’s Sixth

Amendment choice-of-counsel claim, concluding “that the

state court’s application of federal law was objectively unrea-

sonable.” Randolph v. Wetzel, No. 1:06-cv-901, 2020 WL

2745722, at *9 (M.D. Pa. May 27, 2020). The District Court

therefore reviewed Randolph’s claim de novo. It found that

the state trial court violated Randolph’s Sixth Amendment

rights, and that the Pennsylvania Supreme Court’s rejection of

Randolph’s Sixth Amendment claim on direct appeal “was so

lacking in justification that there was an error well understood

15

and comprehended in existing law beyond any possibility of

fairminded disagreement.” Id. at *7 (quoting Richter, 562

U.S. at 103). For the following reasons, we agree with the

District Court and will affirm its order and opinion.

B. Sixth Amendment Claim

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” Although the Sixth

Amendment secures the right to the assistance of counsel, by

appointment if necessary, in a trial for any serious crime,

Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963), the Su-

preme Court has long recognized that the Sixth Amendment

also ensures the right of a defendant to retain his preferred

counsel, see Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is

hardly necessary to say that the right to counsel being con-

ceded, a defendant should be afforded a fair opportunity to

secure counsel of his own choice.”).

To be sure, the right to one’s counsel of choice “is cir-

cumscribed in several important respects.” Wheat v. United

States, 486 U.S. 153, 159 (1988). A defendant may not, for

example, demand to be represented by an attorney who is not

a member of the bar of the relevant jurisdiction or court, or by

one that would create a serious risk of conflict of interest. Id.

Nor can a defendant “insist on representation by an attorney

he cannot afford or who for other reasons declines to repre-

sent the defendant.” Id. And the right to counsel of one’s

choice does not even extend to defendants who require coun-

sel to be appointed for them. United States v. Gonzalez-

Lopez, 548 U.S. 140, 151 (2006); see also Wheat, 486 U.S. at

159. The question raised in this case is the extent to which a

criminal defendant’s right under the Sixth Amendment to his

chosen attorney is qualified by the state’s legitimate interest

in the efficient and effective dispensation of criminal justice.

In previous cases, the Supreme Court has explained how

to weigh that state interest against a defendant’s Sixth

Amendment right to choice of counsel. For instance, the

16

Court has recognized that a trial court must have “wide lati-

tude in balancing the right to counsel of choice against the

needs of fairness.” Gonzalez-Lopez, 548 U.S. at 152 (internal

citation omitted); see also Morris v. Slappy, 461 U.S. 1, 11

(1983). The Court also has recognized that trial judges must

have certain discretion over what we might call the exigencies

of court administration. So on occasion a defendant’s right to

counsel of choice may be moderated by a trial court’s sched-

ule, or the court’s need to “assembl[e] the witnesses, lawyers,

and jurors at the same place at the same time.” Morris, 461

U.S. at 11. But the Sixth Amendment entails a “presumption

in favor of counsel of choice,” Wheat, 486 U.S. at 160, and a

trial court’s “unreasoning and arbitrary ‘insistence upon ex-

peditiousness in the face of a justifiable request for delay’ vi-

olates the right to the assistance of counsel,” Morris, 461 U.S.

at 11-12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589

(1964)).

On direct appeal, the Pennsylvania Supreme Court held

that the trial court did not violate Randolph’s right to the

counsel of his choice. Randolph, 873 A.2d at 1281-82. In do-

ing so, it discussed only Pennsylvania law. In and of itself, so

long as “neither the reasoning nor the result” contradicts

clearly established federal law, that would not be a problem.

Early v. Packer, 537 U.S. 3, 8 (2002).

Here, the legal standard articulated by the state supreme

court does not contradict clearly established federal law. To

the contrary, the court’s discussion makes clear Pennsylvania

law is consonant with federal law. The Pennsylvania Supreme

Court, tracking Wheat and Morris, noted that the right to

counsel of choice is not absolute. Randolph, 873 A.2d at

1282; see also Wheat, 486 U.S. at 159; Morris, 461 U.S. at

11. Further, the Pennsylvania Supreme Court reasonably ob-

served that “the right of the accused to choose his own coun-

sel . . . must be weighed against and may be reasonably re-

stricted by the state’s interest in the swift and efficient admin-

istration of criminal justice.” Randolph, 873 A.2d at 1282

(quoting Commonwealth v. Robinson, 364 A.2d 665, 674 (Pa.

1976)).

17

However, whether the Pennsylvania Supreme Court artic-

ulated the appropriate law is only part of the equation. Under

AEDPA, we must next ask if the state court’s application of

that law was either (1) “contrary to, or involved an unreason-

able application of, clearly established Federal law, as deter-

mined by the Supreme Court of the United States,” or (2)

“based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1), (2). And in this case, the Pennsylvania

Supreme Court’s decision involved an unreasonable applica-

tion of clearly established Sixth Amendment law.

The Pennsylvania Supreme Court’s analysis of Ran-

dolph’s choice-of-counsel claim runs just six sentences,

which, as above, we reproduce in full:

This case had already been continued twice at the re-

quest of court-appointed counsel. [Randolph] waited

until May 1, 2003, two business days before trial was

scheduled to commence, to apprise the trial court of

his desire to have private counsel represent him, even

though he had first contacted private counsel about

representation in January, 2003. The trial court denied

[Randolph’s] request for a continuance but gave [Stret-

ton] the opportunity to participate and was willing to

accommodate his schedule and allow him time to pre-

pare following jury selection. However, [Stretton]

never showed up at trial or during sentencing. In con-

sidering the motion for continuance, the trial court

weighed [Randolph’s] right to counsel of his choice

against the state’s interest in the efficient administra-

tion of justice. We find no abuse of discretion in the

trial court’s refusal to grant [Randolph’s] request for a

continuance.

Randolph, 873 A.2d at 1282. Plainly, the state supreme

court’s description of the state trial court’s denial of Stretton’s

motion for a continuance mischaracterizes crucial details and

omits others.

18

First, the case having “been continued twice” had nothing

to do with Randolph or Stretton. See id. Welch moved to con-

tinue the trial in December 2002 because he struggled to re-

ceive discovery material from Randolph’s prior counsel and

grand jury material from the Commonwealth. Then, in Febru-

ary 2003, Welch moved to continue the trial again because his

mother was ill and hospitalized. Up until the point he secured

the funds to hire Stretton, Randolph more-or-less was the on-

ly party eager to proceed to trial. See App. 616 (January pre-

trial hearing) (Randolph asking “[w]hat’s wrong with Febru-

ary” when Welch sought to delay the trial from January until

March); App. 622 (April pretrial hearing) (Randolph noting

that he “do[es] want [the start of trial] to be [as] prompt as

possible.”); App. 626 (May 1 pretrial telephone call) (Stretton

noting that “[Randolph] said he only wanted a short continu-

ance”).

Second, Randolph did not “wait[] until May 1, 2003, . . .

to apprise the trial court of his desire to have private counsel

represent him.” See Randolph, 873 A.2d at 1282. At the Janu-

ary 3, 2003, pretrial conference, for example, Randolph not

only expressed to the trial court his dissatisfaction with

Welch, see App. 614-17 (“Mr. Welch just doesn’t have my

best interest.”), he also asked the court whether he could

“hir[e] a second chair counsel.” App. 617. The court declined,

but the prosecutor made clear to Randolph that he could re-

tain private counsel if he “could afford to come to an ar-

rangement” with that counsel. Id. At that point, Randolph re-

minded the court that he could not hire private counsel be-

cause he was indigent. Id. Thus, no later than January 2003,

Randolph made clear to the court that he wanted to replace

his court-appointed counsel with another counsel (whether

court-appointed or private), and that the only thing holding

him back from hiring private counsel was money. To the ex-

tent the Commonwealth argues that Randolph should have in-

formed the trial court earlier that he planned to retain Stretton,

there was nothing to report to the trial court because Ran-

dolph did not secure the funds to hire Stretton until the week

before trial. Indeed, the day after Randolph informed Stretton

19

that he could pay his retainer, Stretton attempted to enter his

appearance and moved to continue the trial.

Third, the trial court did not give Stretton “the opportunity

to participate” in Randolph’s trial, nor was it “willing to ac-

commodate his schedule.” See Randolph, 873 A.2d at 1282.

The day Stretton entered his appearance, he requested a one-

month continuance. When the trial court refused, Stretton

counteroffered with a request to delay trial by just a few days.

When the trial court refused again, Stretton then requested a

delay of just three hours. The trial court refused to grant even

that modest accommodation. The court’s obstinance is all the

more striking considering that pretrial discussions that day

took until 11:10 a.m.—just fifty minutes before the time

Stretton had requested. The Pennsylvania Supreme Court’s

decision does not acknowledge this sequence or even mention

the length of the continuance that Stretton ultimately sought.

Fourth, the trial court’s willingness to “allow [Stretton]

time to prepare following jury selection” could not have cured

a Sixth Amendment violation. See id. Jury selection is a criti-

cal stage of a defendant’s criminal proceeding. See Lewis v.

United States, 146 U.S. 370, 374 (1892) (“[W]here the in-

dictment is for a felony, the trial commences at least from the

time when the work of impanelling the jury begins.” (quota-

tion omitted)); see also Swain v. Alabama, 380 U.S. 202, 219

(1965) (noting that because voir dire allows for peremptory

challenges, it is “a necessary part of trial by jury”), overruled

on other grounds by Batson v. Kentucky, 476 U.S. 79, 100

n.25 (1986). Further, jury selection is the primary means by

which a defendant’s counsel (and the trial court) may enforce

the defendant’s right to be tried by a jury free from ethnic, ra-

cial, or political prejudice, or predisposition about the defend-

ant’s culpability. See Flowers v. Mississippi, 139 S. Ct. 2228,

2238-43 (2019). Finally, jury selection in a death penalty case

is particularly important. To select a death-qualified jury, a

defendant’s counsel must ascertain additional information not

relevant in a typical criminal case, like whether a potential ju-

ror would automatically impose the death penalty upon a

qualifying conviction. See Morgan v. Illinois, 504 U.S. 719,

20

731-32 (1992); see also Witherspoon v. Illinois, 391 U.S. 510,

519-23 (1968).

Fifth, the state supreme court failed to mention that the at-

torney-client relationship between Randolph and Welch had

eroded well before Stretton entered his appearance. Randolph

raised his dissatisfaction with Welch at each pretrial confer-

ence available in the record, including the one on the morning

of jury selection. By trial, the breakdown had become so se-

vere that Thomas had to act as an intermediary between Ran-

dolph and Welch. The trial court was not unconcerned by

Randolph’s protestations, but it refused to entertain Ran-

dolph’s requests for substitute appointed counsel, and never

provided Randolph a full opportunity to present the reasons

underlying the breakdown. See Martel v. Clair, 565 U.S. 648,

664 (2012); see also McMahon v. Fulcomer, 821 F.2d 934,

942 (3d Cir. 1987) (concluding that “when a defendant re-

quests substitution of counsel on the eve of trial,” the trial

court “must engage in at least some inquiry as to the reasons

for the defendant’s dissatisfaction with his existing attorney”

(quoting United States v. Welty, 674 F.2d 185, 187 (3d Cir.

1982))).

As the District Court concluded, “[o]nce the full panoply

of relevant facts is articulated, the Sixth Amendment counsel-

of-choice balancing becomes elementary.” Randolph, 2020

WL 2745722, at *10. We agree. The decision by the state trial

court to deny Stretton’s motion for a continuance prevented

Randolph from being represented by Stretton, his choice of

counsel. Because the state trial court offered no justification

for denying the continuance motion in this case, its decision

violated Randolph’s Sixth Amendment right to counsel of

choice.

The Sixth Amendment counsel-of-choice balancing test

weighs the defendant’s right to counsel of choice against suf-

ficiently countervailing reasons, like considerations of judi-

cial administration. Neither the state supreme court in its de-

cision nor the Commonwealth on appeal offers one such rea-

son. The state supreme court concluded that Randolph “wait-

21

ed” until the eve of trial “to apprise the trial court of his desire

to have private counsel represent him.” See Randolph, 873

A.2d at 1282. We already have discussed why this mischarac-

terizes the record. If the state supreme court meant to imply

that Randolph dallied to gain a strategic advantage, as the

Commonwealth suggests on appeal, see Appellant Br. 15 (ar-

guing that “Randolph was playing games with scheduling”),

we disagree. Throughout the pretrial months, Randolph was

eager to get to trial and resisted each delay. Randolph an-

nounced his hiring of Stretton as soon as he had the money to

hire him, and Stretton’s final request for a delay was mod-

est—he sought to postpone the beginning of jury selection by

only three hours.

The Pennsylvania Supreme Court also concluded that it

gave Stretton the “opportunity to participate” in the trial,

Randolph, 873 A.2d at 1282, suggesting that the trial court

did not violate Randolph’s Sixth Amendment rights at all.

That is not so. It is true that the Sixth Amendment affords a

criminal defendant only the “fair opportunity to secure coun-

sel of his own choice.” Powell, 287 U.S. at 53. Here, howev-

er, the state trial court’s ruling prevented Stretton from pick-

ing Randolph’s jury, a critical stage of the criminal proceed-

ing, and the court was unwilling to be even minimally ac-

commodating to Stretton’s reasonable request for a minor de-

lay.

The Commonwealth’s remaining arguments are not per-

suasive. Given the short delay Stretton requested, the Com-

monwealth cannot seriously claim that “Stretton would have

had to build Randolph’s defense from the ground up which

would require an unreasonable delay.” Appellant Br. at 14-15.

And, for two reasons, it fares no better in contending that the

source of funds that were to pay for Stretton evaporated fol-

lowing Stretton’s entry of appearance. Appellant Br. at 19.

For one, the District Court concluded otherwise, see Ran-

dolph, 2020 WL 2745722, at *9-10 (“We set forth the follow-

ing additional facts indispensable to evaluating the constitu-

tional claim at issue[:] . . . . [T]he funds to hire [Stretton] did

22

not become available until April 29.”), and we must accept

that finding unless it is clearly erroneous. On this record, it is

not. So even if the Randolphs did not sell the family business,

Thomas testified that the family still was able to sell an asset

related to that business to raise the funds to pay for Stretton.

App. 596.

For another, whether Randolph secured the funding to

eventually pay Stretton is largely irrelevant. By May 1, 2003,

Stretton had agreed to represent Randolph and had entered his

appearance to do just that. Even if he wanted to withdraw rep-

resentation, he would have needed the leave of the trial court.

Pa. R. Crim. P. 120(C) (Dec. 2002); see also Commonwealth

v. Magee, 177 A.3d 315, 325-26 (Pa. Super. Ct. 2017); Com-

monwealth v. Ford, 715 A.2d 1141, 1145-46 (Pa. Super. Ct.

1998). More practically, a subsequent development concern-

ing a sale of a business or business asset could not have influ-

enced the trial court’s decision to deny Stretton’s motion for a

continuance.

For these reasons, we are satisfied that the decision of the

Pennsylvania Supreme Court involved an unreasonable appli-

cation of clearly established Sixth Amendment law. Said an-

other way, we are satisfied that no fairminded jurist could

disagree that the Pennsylvania Supreme Court’s decision con-

flicts with the Supreme Court’s Sixth Amendment jurispru-

dence. We acknowledge that those precedents grant trial

courts “wide latitude in balancing the right to counsel of

choice against the needs of fairness and against the demands

of its calendar.” Gonzalez-Lopez, 548 U.S. at 152 (internal ci-

tation omitted). But neither of those limitations on the right to

choice of counsel is relevant here. Granting Stretton’s three-

hour continuance would not have been unfair to the prosecu-

tion, nor would it have strained the state’s interest in the

“swift and efficient administration of criminal justice” or

permitted Randolph “to unreasonably clog the machinery of

justice or hamper and delay the state’s efforts to effectively

administer justice.” Randolph, 873 A.2d at 1282 (citations

and quotation marks omitted). It was just three hours.

23

We also acknowledge that the standards imbedded in

AEDPA are designed to be “difficult to meet.” Richter, 562

U.S. at 102. The grant of a writ of habeas corpus is strong

medicine, and it implicates concerns of federalism, comity,

and finality. But if the Sixth Amendment’s guarantee to one’s

counsel of choice is to mean anything, it must mean that a

criminal defendant may select and retain the counsel of his

choice, and the trial court must make every reasonable ac-

commodation to facilitate that representation, provided that

the selection and retention of that counsel will not substantial-

ly prejudice the prosecution or significantly impair the trial

court’s ability to dispense criminal justice.3

3

The Commonwealth makes two additional arguments. Nei-

ther is persuasive. First, it argues that the District Court’s ha-

beas analysis erroneously relied on United States v. Gonzalez-

Lopez, 548 U.S. 140 (2006), a case not decided until after the

Pennsylvania Supreme Court affirmed Randolph’s convic-

tions on direct appeal. Appellant Br. 24-27. Not so. In its

opinion, the District Court discussed Gonzalez-Lopez but

made clear that the case “was decided in 2006 and thus does

not inform the ‘clearly established’ federal law existing at the

time of Randolph’s trial.” Randolph, 2020 WL 2745722, at

*9 n.7. Instead, the District Court “rel[ied] on Gonzalez-

Lopez merely for its affirmation of prior, clearly held Su-

preme Court jurisprudence.” Id. That is correct. The right to

counsel of one’s choice has been firmly embedded in our

constitutional structure for nearly a century, see, e.g., Powell,

287 U.S. at 53, and the District Court’s citations to more re-

cent decisions served only to call attention to the continued

vitality of that principle. Second, the Commonwealth argues

that Randolph waived (or forfeited) any Sixth Amendment

right he is now claiming. Appellant Br. 27-34. Once again,

we disagree. Any Sixth Amendment waiver must be knowing,

voluntary, and intelligent, or preceded by conduct that clearly

implies that the defendant wishes to waive a particular com-

ponent of the right. Moreover, to effect a Sixth Amendment

waiver, a trial court must ensure—typically through a collo-

quy with the defendant—that the decision by the defendant

“is intelligently and competently made.” Welty, 674 F.2d at

187. Neither of those prerequisites were met here.

24

III. CONCLUSION

Few would dispute that “the most important decision a de-

fendant makes in shaping his defense is his selection of an at-

torney.” United States v. Laura, 607 F.2d 52, 56 (3d Cir.

1979). For those able to secure representation in a criminal

case independent of a court appointment, a fair opportunity to

select and retain one’s choice of counsel is not just a boon, it

is a right protected by the Sixth Amendment. Powell, 287

U.S. at 53. One’s right to choice of counsel is not without

limits. Trial courts retain certain discretion to balance that

right with the exigencies of administering criminal justice.

But however broad a court’s discretion may be, it is not broad

enough to excuse the Sixth Amendment violation that oc-

curred here. We hold that the state trial court’s error violated

Randolph’s Sixth Amendment right to counsel of choice, that

the Pennsylvania Supreme Court’s decision holding otherwise

was unreasonable under AEDPA, and that this violation is not

subject to harmless-error analysis. Gonzalez-Lopez, 548 U.S.

at 152. Further, because the Pennsylvania Supreme Court’s

decision was unreasonable in its application of federal law,

we need not reach whether its decision was based on an un-

reasonable determination of the facts.

The judgment of the District Court therefore will be af-

firmed, and the case will be remanded for the District Court

to issue a writ of habeas corpus.

25