Petition for Writ of Certiorari — Ditch v. Grace (No. 07-91)

—— ore — —---- $$ — — Ft hat

07-91 JUL24 2007

In Court of

No. 06-

Anited S

TYSON A. DITCH, PETITIONER

JAMES L. GRACE, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEFFEN N. JOHNSON

TYSON R. SMITH*

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006

(202) 282-5000

*Counsel of Record

Counsel for Petitioner

PO LRA CNG LARA PEIN AN A ETE PME NE NOEL OOO IO NE

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the complete denial of a criminal defendant’s

Sixth Amendment right to be represented by counsel at a

critical stage of the prosecution creates a “presumption of

prejudice” under this Court’s decision in United States v.

Cronic, 466 U.S. 648 (1984), that compels reversal of the

conviction.

i

PARTIES TO THE PROCEEDINGS

Petitioner Tyson A. Ditch was the petitioner-appellant

in the court below. Respondent James L. Grace was the

respondent-appellee below. There are no other parties.

iil

TABLE OF CONTENTS

Page

a ee BEIT 8 ITED aviccick Snvstinceendsnevacspscbuiineucoetatsuantubienieas i

PARTIES TO THE PROCEEDINGS....... ............ icakataes li

pi FR be 2 ites. ts gy) - Fee eee iv

I a a 1

2p RA OR RRR UCR NCE OR et acd TH NOIR: 2

SP a 2

CONSTITUTIONAL PROVISIONS. ........cccccccccccesoscecccsoccoees 2

ey yg UREN EES Sa gern ge ee na nele ees ae RR a 2

A. The Denial of Counsel at Petitioner’s

PCGRUNIIETY TROUTUING i ceecnsinciccsecevisivetverescuccdectenosees 3

B. The Ineffective Assistance of Petitioner’s

I ie 4

C. Federal Court Proceedings. ............:c-rzcccceresreeserees 5

REASONS FOR GRANTING THE PETITION................... 8

3 Review Is Needed To Resolve A Circuit Conflict

Over The Standard For Determining When A

“Presumption of Prejudice” Applies To A Sixth

Beas WOE. oi i eee i ee i as sas 9

II. The Question Presented Is Of immense Practical

Importance To Prosecutors, Courts, and

Be ERNE AI se CLE ND EE ee EME OS 19

CONCLUSION

EAE: Wi thsi ncnisttiniipcsandy Sune pieniceiglonhias tebieiliammdietan

Pe eI I i tele icisciciecesnns ciliates achiceriaiaceciaatamtnia cantante aera

Fa IEE tin clilhcitnsepiceniavilinntibiseeatiinamemctignaiademaaaee

fe | ee ENE ARIEL A NDE To Mlle Stace

1V

TABLE OF AUTHORITIES

Page(s)

CASES:

Beil v. Cone,

Se ey I IID scccsicvsccisnbesendacdietnsemrnsbonenmsiinckeoobie issues 9

Coleman v. Alabama,

GE. ERSTE AEE RROD AMICI OOP T T IO 6, 10

Crawford v. Washington,

yA SE TIE ee nC ED Rr SRA as COMBO 19, 22

Davis v. Alaska,

415 oss pi pacacuiundemeRiowioion 7

Faretta v. California,

A ss a bn pnd obeieiaeboebadnine 17

French v. Jones,

BSP F.3d 490 (6th Cir. 200)... ..ccccccscccccessccoscesssecesers 1], 12

Gilbert v. California,

SRT os carnieeshduiderdemiboeinamnieionionaieell 6

Hamilton v. Alabama,

le helen aalices 10

Hunter v. Moore,

ee Fe Re Ca LEER CAD, Bd oecsinhecsesicivnssuncssentiacasnns 12

Kirby v. Illinois,

I I TI oo circ ns caaceencnnbsdiespegtnnbomncsbateommonedie 8

Maryland v. Craig,

ee es EID vccdsiioontccontndciniivindestennmosnsuntsiigtinkacuadioaaci 15

Mintun v. Idaho,

__ P.8d __, 2007 WL 1975624 (Idaho App.) .....e..- see 13

Moore v. lilinois,

ee I IE Oh aidthosntievkinntisnidadecianbiinwaebsntietibasniianant 6

Plumlee v. Del Papa,

ABB FBG SiG CE Cir. BOOT) wvevcccisecceceneserscecssescecoses 12,16

Powell v. Alabama,

MN UII Sid ica iiss cisndecadiusnnsinauiénadvebakovervaind 10, 14

Roe v. Flores-Ortega,

Be rhe eT CIID wins esiicpacstnnvonessxeccocennsans sdiscabhenincenabiied 12

State v. Brown,

279 Conn. 493, 903 A.2d 169 (2006).............cccccccscesereee 11

Strickland v. Washington,

ee NG ci sediciecséncuvinesadicsaonsdaiationesnsaniesiets 8,19

United States v. Collins,

Be Fe LA CLOED CAD. BOOT) oc vccnscrcssecccctavessvsscorssocenss 11

United States v. Cronic,

Ee As NE I vic dsicascrehcdavesssccvecsiestseteiineones 1, 7, 8, 12

United States v. Gonzales-Lopez,

546 U.S. _ 126 8. Ct. 2667 (2006).............. 9, 14, 15, 16

United States v. Hillsman,

ABD FBG BOG CBtis Cir. 2007) on cvscccssiccscccsvececcesescsessicecons 12

United States v. Owen,

MOT FG SSF CE Cir. ZOOS) oo esciiicsccccsccccseescvonces 4, 10; 1%

Van v. Jones,

Te Fe Pe GE GE. BRIO DD esecccnnccccascncccecseiasessavcuicneseces 12

Wheat v. United States,

I IE IO os sc osccviclocbixdacpeirind sxaxoimapbansaecbceneeeteete 15

White v. Maryland,

BES Ui, OO CLOGS) cis ccccesccrrTeesicccscncrsccceseseccesecdivcnscecoess 6, 10

Young v. United States ex rel. Vuitton et Fils S.A.,

TRI RT Cg ie a aia te ae 23

STATUTES:

a eich ELIE niicchiduiiesiascnsincoiccveiccssineaiesnicereacine 6

CAL. PENAL CODE § 858-883 (2006) ................cccccssssessesseees 21

TEX. CRIM. PROC. CODE ANN. § 16.01 (2004) .......c.cecceceeeee. 21

WIG. STATS. § 970.03 (DOO) ....sccsececcecececessccascoseseceevovesseesa: 21

vi

MISCELLANEOUS:

Administrative Office of Pennsylvania Courts, De-

partment of Policy and Research, Dynamic Sta-

tistics (http://www.courts.state.pa.us/index/

aopc/Research/dynamic_statistics/index_researc

| ERAN SEE SERUM Ra Reeders Ge Oa EE ea 20

Caroline W. Harlow, BUREAU OF JUSTICE

STATISTICS, U.S. DEP’T OF JUSTICE,

Defense Counsel In Criminal Cases (2000)

(http://ojp.usdoj.gov/bjs/pub/pdf/dccc. pdf) ............ceceeeee 22

Note, Legislation: The Right to the Benefit of Coun-

sel Under the Federal Constitution, 42 Colum.

ee Ce i a ceeckbenes 18

Richard L. Gabriel, The Strickland Standard for

Claims of Ineffective Assistance of Counsel:

Emasculating the Sixth Amendment in the

Guise of Due Process, 134 U. PA. L. REV. 1259

(| GRELSCREEAE ERE IEIRR OIE eB aes PS ROL MLC OOM ACORN 16

Right to Counsel: Denial of Counsel at Critical

Stage Didn’t Give Rise to Presumption of

Prejudice, 80 CRIM. L. REP. 620 (2007) ............:0sseeeeeeee 16

Right to Counsel: Reversal Not Automatic for

Denial of Counsel at Probable Cause Hearing,

TB CRIM. Li RRP. TOD OOS) cineisisssssicetisstiisiniinsnisice 17

Roger A. Hanson and Henry W.K. Daley, BUREAU

OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,

Federal Habeas Corpus Review (1995)

(http://ojp.usdo}j.gov/bjs/pub/pdf/fheresce. pdf) .............. 24

Supreme Court — Leading Cases,

420 HARV. L. REV. 203, 207 (2O0G) .........cceccccecenccesccscees 15

William M. Beaney, The Right to Counsel in

I Te EE eciisnttesicchnschsdvvlancanincinanisertereniecs 17

INTRODUCTION

In United States v. Cronic, this Court explained that a

“complete denial of counsel” at a “critical stage of [the de-

fendant’s] trial” was one of “three situations implicating

the right to counsel that involved circumstances ‘so likely

to prejudice the accused that the cost of litigating their

effect in particular case is unjustified.” 466 U.S. at 659.

“The Court has uniformly found constitutional error with-

out any showing of prejudice,” the Court stated, “when

counsel was *** prevented from assisting the accused

during a critical stage of the proceeding.” Jd. at 659 n.25

(collecting cases).

The court below acknowledged that the preliminary

hearing at which petitioner Ditch was denied counsel in

this case—a hearing at which witness testimony was pre-

sented and the government bore the burden of establish-

ing that the defendant committed the crime at issue by a

preponderance of the evidence—was a “critical stage” of

the proceeding. Nonetheless, rather than order automatic

vacatur of his conviction, the court instead conducted a

“harmless error” analysis to determine whether he was

prejudiced by that denial.

This case thus provides the Court with an opportunity

to address the vital question of whether the complete de-

nial of counsel at a critical stage of criminal proceeding—

an undisputed Sixth Amendment violation—mandates re-

versal of a criminal conviction. This question not only has

divided the lower courts, but also arises in thousands of

cases annually on account of the fact that preliminary

hearings like that below are routine practice in the courts

of some thirty-five States and the federal government.

Certiorari is warranted to establish that courts may not

conduct an individualized, “harmless error” analysis

where a criminal defendant has been denied counsel at a

critical stage of the proceeding, such as a preliminary

hearing.

2

OPINIONS BELOW

The repr~t and recommendation of the magistrate

judge and | # »pinion of the district court adopting the

magistrate judge’s recommendation (Pet. App. la-46a and

47a-48a, respectively) are unreported. The Third Circuit’s

opinion affirming the decision of the district court (Pet.

App. 49a-64a) is reported at 479 F.3d 249 (3d Cir. 2007).

The Third Circuit’s order denying rehearing en banc (Pet.

App. 65a-68a) is unreported.

JURISDICTION

The opinion of the court of appeals was entered on

March 1, 2007, and the order of the court of appeals deny-

ing petitioners’ petition for rehearing en banc was entered

on March 26, 2007. On June 22, 2007, this Court granted

petitioner a 30-day extension of time within which to file

the petition for certiorari, to and including July 24, 2007.

The petition was timely filed on that date. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

This petition involves the Sixth Amendment to the

U.S. Constitution, which provides in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right

* * * to have the Assistance of Counsel for his defense.”

STATEMENT

At approximately 3 o’clock in the morning on February

18, 1998, Dasha Yenny reported to police that someone

had fired shots from a gun into the front door of the

apartment where she, her child, and her boyfriend were

sleeping. Ronald Fry, a neighbor in an apartment near

Yenny’s apartment, reported to the investigating officer

that he had heard shots fired into Yenny’s door. Although

legally blind, Fry further reported that he had looked out

of his window towards the front of the building and “saw”

an individual, described at the time simply as “a single

3

male,” leave the apartment building shortly after the shots

were fired. According to Fry, this individual male got into

a white car and left the scene. Later that morning, the

State Police executed a search warrant on petitioner’s

brother’s home and found petitioner, a former boyfriend of

Yenny, sleeping in the attic of the residence. Petitioner

was then taken into custody. Pet. App. 50a.

A. The Denial of Counsel at Petitioner’s Pre-

liminary Hearing

At a preliminary hearing nearly four months later, pe-

titioner was charged by the Pennsylvania State Police

with several crimes related to the shooting at the apart-

ment: criminal attempt to commit burglary; reckless en-

dangerment; unlawful possession of a firearm; and crimi-

nal mischief. Prior to the start of the hearing, petitioner

repeatedly raised concerns to the officers accompanying

him to the courtroom that he did not yet have an attorney

representing him. Petitioner reiterated these concerns to

the judge prior to the hearing. He informed the judge that

he and his friends and family had contacted the office of a

specific attorney known to petitioner several times, but

that the attorney had not yet returned his call. The judge,

however, told petitioner that it had been 20 days since the

arraignment and that the case needed to proceed.

The judge then urged petitioner to waive his right to

counsel so that the preliminary hearing could proceed.

Petitioner refused to sign the Waiver of Counsel form,

stating that he wished to have counsel present at the pre-

liminary hearing given the serious nature of the charges

against him and his inability to represent himself effec-

tively at the hearing. Even though petitioner did not sign

the waiver form and did not otherwise waive his right to

counsel, the judge proceeded to conduct the preliminary

hearing without an attorney present on petitioner’s behalf.

65a

APPENDIX D

UNITED STATES COURT OF

APPEALS FOR THE THIRD

CIRCUIT

No. 05-3614

TYSON ALAN DITCH,

Appellant,

V.

JAMES L. GRACE.

March 26, 2007, Decided

SUR PETITION FOR REHEARING

Present: SCIRICA, Chief Judge,

SLOVITER, McKEE, RENDELL, BARRY, AMBRO,

FUENTES, SMITH, FISHER, CHAGARES, JORDAN

and COWEN, Circuit Judges

The petition for rehearing filed by appellant in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to all

the other available circuit judges of the circuit in regular

4

During the preliminary hearing, several witnesses—

the victim, Fry (the legally blind eyewitness), the investi-

gating State Trooper, and four other State Police Offi-

cers—were called to testify. Although the hearing was

held four months after the incident, and although Fry was

a key eyewitness, there had been no line-up or photo array

prior to the preliminary hearing. Nevertheless, Fry was

allowed to observe police officers lead petitioner into the

courtroom in handcuffs and prison clothing and could ex-

amine petitioner while he sat at the defendant’s table dur-

ing the course of the hearing. Once called to testify, Fry

identified the unrepresented petitioner as the person leav-

ing the apartment building on the night of the shooting. A

phone trace, a firearms inquiry, and a ballistics test,

which had also contributed to the issuance of a search

warrant and arrest of petitioner, were also the subject of

testimony and evidentiary presentations at the prelimi-

nary hearing. Although petitioner took some notes on pa-

per provided by the judge, he did not question any of the

witnesses or present any testimony himself.

B. The Ineffective Assistance of Petitioner’s

Counsel at Trial

“The only witness who identified Petitioner as the as-

sailant was legally blind at the time of the shooting.” Pet.

App. 2a. But notwithstanding the fact that the state’s key

eyewitness was blind, petitionerf’s trial attorney did not

file any pretrial motion to suppress the in-court identifica-

tion or other evidence introduced at the preliminary hear-

ing. Nor did his attorney seek to obtain a second prelimi-

nary hearing with the benefit of counsel. Thus, the prior

in-court identification as well as the State Trooper's evi-

dence and testimony from the preliminary hearing, were

allowed to stand unchallenged during the subsequent

trial. Moreover, the investigating State Trooper was not

present at petitioner’s trial and therefore was never ques-

tioned or examined by petitioner or his attorney at any

5

point before or during the trial. Petitioner was convicted

of criminal attempt to commit burglary, reckless endan-

germent, unlawful possession of a firearm, and criminal

mischief, and was sentenced to 7.5 to 15 years in prison.

Pet. App. 2a.

C. Federal Court Proceedings

After exhausting his appeals in the Pennsylvania state

courts, petitioner filed a petition for writ of habeas corpus

in the district court. Petitioner challenged several aspects

of his conviction, including the trial court’s denial of coun-

sel at the preliminary hearing. The district court denied

both the petition and a Certificate of Appealability. Pet.

App. 48a. The Third Circuit, however, granted petitioner’s

request for a Certificate of Appealability with respect to

two issues: (1) whether the district court erred in denying

his petition for a writ of habeas corpus as to petitioner’s

claim that he was denied his constitutional right to coun-

sel at his preliminary hearing; and (2) whether the district

court erred in denying his petition for writ of habeas cor-

pus as to the claim that he was deprived of effective assis-

tance of counsel because trial counsel failed to file a mo-

tion to suppress the identification that occurred at the un-

counseled preliminary hearing. Pet. App. 51a.

As to the question whether petitioner was wrongfully

denied counse] at his preliminary hearing, the court found

a violation of the Sixth Amendment. In reaching that con-

clusion, the Third Circuit first held that a preliminary

hearing in Pennsylvania is a “critical stage” of a criminal

prosecution. Pet. App. 53a.

The court explained that, at a Pennsylvania prelimi-

nary hearing, the state might recommend that the defen-

dant be discharged or bound over to the court. Id. at 53a-

54a. Moreover, the principal function of the preliminary

hearing in Pennsylvania is to protect the accused’s right

against unlawful arrest and detention, and the state bears

6

the burden of establishing both a prima facie case that a

crime has been committed and that the accused is proba-

bly the one who committed it. Jbid. The preliminary

hearing is not, moreover, just a forum for the prosecution.

The defendant may: (1) be represented by counsel;

(2) cross-examine witnesses and inspect physical evidence;

(3) call witnesses on his behalf; (4) offer evidence on his

behalf; (5) testify; and (6) make written notes of the pro-

ceedings. 234 Pa. Code 542(C) (1998). Having found that

the preliminary hearing was a “critical stage” and that pe-

titioner did not waive or forfeit his right to counsel, the

court concluded that petitioner was denied counsel at the

preliminary hearing in violation of the Sixth Amendment.

In addressing the appropriate relief for the Sixth

Amendment violation, the court rejected petitioner’s ar-

gument that complete denial of counsel at a critical stage

of the proceeding warrants automatic vacatur of his con-

viction. The court first reasoned that neither Coleman v.

Alabama, 399 U.S. 1 (1970), which involved a remand for

a harmless error analysis following denial of counsel at a

preliminary hearing, nor White v. Maryland, 373 U.S. 59

(1963), which found structural error requiring vacatur fol-

lowing denial of counsel at a preliminary hearing where

an admission of guilt was entered, was apposite. Pet. App.

56a. Instead, the court “found solace” for its decision in a

line of cases prescribing a harmless error test for situa-

tions involving admission of evidence at trial of uncoun-

seled pre-trial identifications. Jd. at 56a-57a (citing Gil-

bert v. California, 388 U.S. 263 (1967), and Moore v. Illi-

nois, 434 U.S. 220 (1977)). In doing so, the Court focused

exciusively on the identification at the preliminary hear-

ing, ignoring the effect of the constitutional violation on

petitioner’s other rights at a preliminary hearing, which

include the right to question witnesses, introduce evi-

dence, or take notes of the proceeding, which might help in

preparing a defense.

7

Notwithstanding its conclusion that a preliminary

hearing was a “critical stage” of the proceeding against

petitioner, the court rejected the argument that it should

apply the presumption of prejudice from United States v.

Cronic, 466 U.S. 648 (1984). Pet. App. 59a. In Cronic, the

Court “identified three situations implicating the right to

counsel that involved circumstances ‘so likely to prejudice

the accused that the cost of litigating their effect in a par-

ticular case is unjustified.” Jd. at 659. Among these cir-

cumstances is a “complete deni .1 of counsel” at a “critical

stage.” Ibid.' Petitioner therefore argued that, because he

was denied counsel at a “critical stage” of the prosecution,

he was entitled to the presumption of prejudice under

Cronic and vacatur of his conviction. Pet. App. 58a.

The court disagreed, expressly adopting the reasoning

of the Fourth Circuit in United States v. Owen, 407 F.3d

222 (4th Cir. 2005), cert. denied, 126 S. Ct. 1026 (2006)

(even though the reasoning it adopted was not necessary

to the outcome of that case, as the court there found that

the defendant waived his right to counsel, obviating the

need to address the applicability of Cronic). Rather than

recognize the presumption of prejudice for a complete de-

nial of counsel at any “critical stage,” the decision below

creates a new sub-set of Sixth Amendment violations in-

volving complete denial of counsel at critical stages that

' The Court in Cronic also noted that no specific showing of

prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974),

because the petitioner there was “denied the right of effective

cross-examination” which “would be constitutional error of the

first magnitude and no amount of showing of want of prejudice

would cure it.” Jd. at 318. Thus, under Cronic, petitioner was

entitled to a presumption of prejudice both because he was com-

pletely denied counsel and because he was unable to cross-

examine the investigating State Trooper at trial. The court be-

low, however, did not address Petitioner’s inability to cross-

examine the trooper; it addressed only the “complete denial” of

counsel.

8

are not subject to the Cronic presumption of prejudice.

Pet. App. 59a. Relying on a “narrow usage of the phrase

‘critical stage’ to mean a proceeding at which a denial of

counsel would necessarily undermine the reliability of the

entire criminal proceeding,” the court below concluded

that the actual denial of counsel at petitioner’s prelimi-

nary hearing did not warrant the presumption of prejudice

under Cronic. Ibid. The court provided no rationale for

its conclusion that denial of counsel at a preliminary hear-

ing in Pennsylvania does not undermine the entire crimi-

nal proceeding. But having determined that the presump-

tion of prejudice did not apply, the court applied a harm-

less error test, concluded that the error was harmless, and

affirmed the district court. Id. at 62a.?

This petition followed.

REASONS FOR GRANTING THE PETITION

The Sixth Amendment entitles a defendant to the as-

sistance of counsel at “any critical stage” of a criminal

prosecution. Kirby v. Illinois, 406 U.S. 682, 690 (1972).

Although courts have identified a myriad of “critical

2 The court also found that petitioner’s trial counsel’s per-

formance “fei! below an objective standard of reasonableness”

under the first prong of the two-part Strickland test. Pet. App.

63a; Strickland v. Washington, 466 U.S. 668 (1984). The court

recognized that petitioner was “unquestionably denied his right

to counsel at the preliminary hearing at which the identification

was made” and that, under clearly-established law, evidence of

an uncounseled pre-trial identification is subject to a per se ex-

clusionary rule. /bid. Applying the second prong of Strickland,

the court reasoned that counsel’s unprofessional errors, if cor-

rected, would not have changed the result of the proceeding. Jd.

at 64a. Thus, the court concluded that petitioner’s trial counsel

was not constitutionally ineffective. /bid. The court did not ad-

dress petitioner’s counsel's failure to challenge the testimony of

the investigating State Trooper who testified at the preliminary

hearing, but not at the subsequent trial.

9

stages” at which the Sixth Amendment right to counsel

attaches, courts have struggled to resolve the appropriate

remedy for violations of that right. This case presents a

critical constitutional question that arises in many such

cases and on which the courts of appeals (and at least one

state supreme court) are divided. These conflicts reflect

fundamental disagreements over the proper interpretation

of the Sixth Amendment and this Court’s constitutional

decisions, resulting in one set of constitutional protections

in some circuits and a different set of constitutional pro-

tections in others. Moreover, the uncertainty that these

conflicts create has an enormous practical impact on

prosecutors, criminal defendants, and courts throughout

the Nation, because the issue arises in thousands of pre-

liminary hearings annually across the nation.

I. Review Is Needed To Resolve A Circuit Conflict

Over The Standard For Determining When A

“Presumption of Prejudice” Applies To A Sixth

Amendment Violation.

The Third Circuit’s non-application of the Cronic “pre-

sumption of prejudice” to a complete denial of counsel at a

critical stage widens an existing conflict between those

courts of appeals that, like the Third Circuit, require an

individualized showing that the critical stage is one at

which the constitutional error pervades the entire crimi-

nal proceeding and those that apply a per se rule that de-

nial of counsel at a critical stage warrants reversal. This

Court’s guidance is badly needed to resolve this important

question of constitutional law, which arises frequently in

both federal and state prosecutions. This Court’s most re-

cent guidance on the Cronic presumption of prejudice, in

Bell v. Cone, 535 U.S. 685 (2002), and its opinion in United

States v. Gonzales-Lopez, 126 S. Ct. 2557 (2006), have en-

gendered further confusion among the circuit courts re-

sulting in divergent applications of decisions from this

Court.

10

1. The decision below deepens a square circuit conflict

on this important question. On the one hand, following

the earlier Fourth Circuit decision in United States v.

Owen, 407 F.3d 222 (4th Cir. 2005), the court below set an

extraordinarily high threshold for finding that a complete

denial of counsel is a structural error that warrants auto-

matic vacatur. In interpreting the language in Cronic that

the first and “[mjost obvious” situation in which a pre-

sumption of prejudice applies is a “complete denial of

counsel,” the court acknowledged that petitioner’s argu-

ment “has some appeal.” Pet. App. 58a. However, the

court crafted a new and narrow usage of the phrase “criti-

cal stage” to mean only those critical stages at which a de-

nial of counsel would necessarily undermine the entire

proceeding. Pet. App. 59a.

As noted above, the court below relied on a portion of

the Fourth Circuit’s decision in Owen. Although the court

in Owen acknowledged that the presumption of prejudice

under Cronic applies to a “critical stage” at which the de-

nial of counsel undermines the reliability of the proceed-

ing, the court refused to extend the presumption to all

critical stages, as that term is used in Coleman.’ Ibid.

The court recognized that Owen’s arraignment was a criti-

cal stage at which the Sixth Amendment right to counsel

applies—-that is, a critical stage under Coleman—but nev-

ertheless concluded that the arraignment was not a criti-

cal stage under Cronic. Id. at 228-229.

3% Since Powell v. Alabama, 287 U.S. 45, 68-69 (1932), the

Court has held that the defendant must be represented by coun-

sel at any “a critical stage in a criminal proceeding.” See also

Coleman, 399 U.S. at 8 (holding that preliminary hearing is

critical stage); Hamilton v. Alabama, 368 U.S. 52 (1961) (deter-

mining that arraignment is a critical stage); White, 373 U.S. at

59 (holding that a preliminary hearing is a critical stage, where

plea entered without counse! was introduced against defendant

at trial).

11

The Tenth Circuit has taken a logically indistinguish-

able approach, concluding that a Sixth Amendment viola-

tion requires reversal only when the constitutional viola-

tion “pervades the entire proceeding.” United States v.

Collins, 430 F.3d 1260, 1266-67 (10th Cir. 2007). Al-

though the court in Collins correctly noted that Cronic es-

tablishes a Sixth Amendment violation without the show-

ing of prejudice required under Strickland, the court nev-

ertheless proceeded to examine the record to determine

whether the error pervaded the entire proceeding. Jd. at

1268. After finding that the defendant was denied counsel

at his competency hearing and that the error may have

affected the outcome of the trial, the court vacated the

conviction. Ibid.

The Connecticut Supreme Court has likewise bifur-

cated “critical stages” into those amenable to harmless er-

ror analysis and those requiring reversal. In State v.

Brown, 279 Conn. 493, 510, 903 A.2d 169, 179 (2006), the

Court declined to vacate a conviction where the defendant

was denied counse] at his probable cause hearing and an-

nounced a new rule that vacatur is warranted only when

the constitutional error “renders a trial fundamentally un-

fair.” These courts have thus created a two-tier system of

critical stages—those critical “enough” to warrant a pre-

sumption of prejudice (and vacatur) and those less critical

stages, to which a harmless error test applies.

In contrast to this strained parsing of the term “critical

stage,” the Sixth and Eleventh Circuits have adopted a

more literal and straightforward reading of Cronic. In

French v. Jones, 332 F.3d 430, 438 (6th Cir. 2003), the

court concluded that a defendant whose lawyer was not

present at a critical stage of the prosecution-——in this case,

when the trial judge gave a supplemental instruction to a

deadlocked jury—is entitled to reversal of his conviction

under Cronic and Bell. The court held that “the complete

denial of counsel during a critical stage of a judicial] pro-

12

ceeding mandates a presumption of prejudice” and is “per

se reversible error.” Jd. at 436, 438, quoting Roe v. Flores-

Ortega, 528 U.S. 470, 483 (2000).

The court reaffirmed its conclusion regarding the ap-

plication of Cronic in Van v. Jones, 475 F.3d 292, 304-305

(6th Cir. 2007). There, the court began with an extensive

dissection of this Court’s decision in Cronic, highlighting,

in particular, the three circumstances that Justice Stevens

identified as demanding a presumption of prejudice, in-

cluding “complete denial of counsel” and denial of “the

right of effective cross-examination.” Jd., citing Cronic, 466

U.S. at 659-660. The court examined closely the language

of the Chief Justice’s majority opinion in Bell, which adop-

ted a strong reading of Cronic, before concluding that a

“complete absence of counsel at a critical stage of a crimi-

nal proceeding is a per se Sixth Amendment violation war-

ranting reversal of a conviction, a sentence, or both, as ap-

plicable, without analysis for prejudice or harmless error.”

Id. at 311-312; see also United States v. Hillsman, 480

F.3d 333, 335 (5th Cir. 2007) (citing Van v. Jones for its

conclusion that reversal is warranted where counsel for

the accused is totally absent).

Similarly, the Eleventh Circuit in Hunter v. Moore, 304

F.3d 1066, 1069-1070 (11th Cir. 2002), deemed that Cronic

is the appropriate legal test where the defendant was de-

nied counsel at a critical stage of a criminal prosecution.

The court contrasted its application of Cronic for an actual

denial of counsel to the two-prong Strickland approach for

ineffective assistance of counsel claims. J/bid. Based on

Cronic and Bell, the court held that an actual denial of

counsel at a critical stage warrants reversal without a

specific showing of prejudice. [bid; see also Plumlee v. Del

Papa, 465 F.3d 910, 923 (9th Cir. 2007) (concluding that

an actual denial of counsel mandates a presumption of

prejudice and vacating the conviction accordingly).

The Court's intervention is warranted to resolve this

13

clear and entrenched circuit conflict on this important is-

sue. These two disparate interpretations of the Sixth

Amendment right to counsel and the diverging frame-

works for determining the remedy for a constitutional vio-

lation are ripe for resolution by this Court.4 There is no

need for further percolation of the issue, as the analytical

framework is a binary one: denial of counsel at a critical

stage either requires vacatur or it does not. There can be

no “third way.”

2. Not surprisingly, these conflicting interpretations

of the Sixth Amendment and applicable Supreme Court

decisions concerning the appropriate remedy for a Sixth

Amendment violation would have produced directly con-

flicting results in petitioner’s case depending on the circuit

in which the issue arose. Application of the Sixth, Ninth,

and Eleventh Circuits’ per se rule (i.e., complete denial of

counsel at a critical stage requires reversal without dem-

onstrating harm) to the facts here would have mandated

vacating petitioner’s conviction. Once the court found that

a preliminary hearing is a “critical stage” of the prosecu-

tion, the remedy would have been vacatur of the convic-

tion.

Under the restrictive approach of the Third, Fourth,

and Tenth Circuits, and the Connecticut Supreme Court,

however, a court would be forced to engage in speculation

and supposition in an effort to ascertain whether the ab-

4 The Third Circuit’s beyond-subtle distinction between “criti-

cal stages” and “critical stages” is clearly difficult for other

courts to apply. For example, in Mintun v. Idaho, __ P.3d _,

2007 WL 1975624*3 (Idaho App.), the court cited the decision

below for the proposition that denial of counsel during a critical

stage warrants a presumption of prejudice. However, the court

apparently failed to grasp that the decision below creates a two-

tier system of critical stages, as the court omitted any discussion

of whether a direct appeal of a conviction is a critical stage un-

der the decision below or under Coleman.

14

sence of the “guiding hand” of counsel at a critical stage

was pervasive. Powell, 287 U.S. at 68-69. And, at least in

the Third Circuit, the answer is no, even where there was

an intentional denial of counsel at an admittedly “critical

stage” and the defendant was ultimately unable to cross-

examine a witness that testified against him during the

uncounseled preliminary hearing.

Thus, under the Sixth, Ninth, and Eleventh Circuits’

application of Cronic, petitioner’s conviction would be va-

cated, while petitioner’s conviction stands under the Third

Circuit’s test—as it would in two other circuits and Con-

necticut—because the defendant failed to make an indi-

vidualized showing of prejudice. This stark difference in

outcomes based solely on the happenstance of geography

and jurisdiction undermines the public’s perception of

fairness and equality within the criminal justice system,

and calls for resolution by this Court.

3. The Third Circuit’s approach also conflicts in prin-

ciple with this Court’s decision in Gonzales-Lopez. 126

S. Ct. at 2563. Although Gonzales-Lopez involved applica-

tion of the Sixth Amendment right to “counsel of choice,”

the logic of the decision is applicable to petitioner’s cir-

cumstances. Indeed, the complete deprivation of counsel

(i.e., no “choice”) is a constitutional violation of a greater

magnitude than the violation in Gonzales-Lopez. There,

Justice Scalia, writing for the majority, differentiated be-

tween actual deprivation of counsel of choice and the de-

nial of the right to effective assistance of counsel. Jd. at

2562-2563. Where a defendant is denied his counsel of

choice, the Sixth Amendment viclation is complete once

there is erroneous deprivation of counsel and automatic

reversal is warranted. /d. at 2563. In contrast, where a

defendant claims he was denied effective assistance of

counsel, establishing a violation requires a showing of

prejudice. Jd. at 2563. Although the majority agreed with

the Government that the purpose of the rights in the

15

Amendment is to ensure a fair trial, the Court noted that

it “does not follow that the rights can be disregarded so

long as the trial is, on the whole, fair.” The majority thus

rejected the Government’s approach in Gonzales-Lopez as

“a line of reasoning that abstracts from the right to its

purposes, and then eliminates the right.” Id. at 2562, cit-

ing Maryland v. Craig, 497 U.S. 836, 862 (1990) (Scalia, J,

dissenting).

Application of the principles of Gonzales-Lopez to the

circuit courts’ interpretation of Cronic and Bell should

lead to consistent results, given that the right to counsel

at a critical stage and the right to counsel of choice both

implicate the same “root meaning” of the constitutional

guarantee. Wheat v. United States, 486 U.S. 153, 159

(1988). Analytically, there is little difference between

complete denial of counsel in the face of a request for

counsel and denial of counsel of choice—both deny the de-

fendant an attorney-of his choosing. Thus, both types of

Sixth Amendment violations should be characterized as

“structural errors,” because they affect the very frame-

work of the subsequent trial and because of the difficulty

in disaggregating the effect of the error from the outcome

of the proceeding.

Gonzales-Lopez, however, creates an inconsistency

between the counsel of choice doctrine and the effective

assistance of counsel doctrine as established in Strickland

and Cronic. See Supreme Court—Leading Cases, 120

HARV. L. REV. 203, 207 (2006) (describing Gonzales-Lopez

as an “unsatisfying effort to distinguish the ineffective as-

sistance and counsel of choice doctrines conceptually” that

creates “an obvious incongruity” in Sixth Amendment doc-

trines.). Under Gonzalez-Lopez, a criminal defendant who

is erroneously denied his first-choice counsel receives a

new trial, even if his second-choice attorney “performed

brilliantly.” Gonzalez-Lopez, 126 S. Ct. at 2570 (Alito, J.,

dissenting). Under the Third Circuit rule applied below, a

16

criminal defendant who is denied counsel altogether does

not receive a new trial unless he can demonstrate the out-

come would have been different had counsel been present.

This rule sanctions criminal proceedings that are missing

a key procedural ingredient--a competent defense attor-

ney——as long as the outcome of the trial is correct (that is,

the defendant is obviously guilty).®

The Ninth Circuit has recognized the obvious and in-

tuitive link between denial of counsel of choice and actual

denial of counsel. In Plumlee v. Del Papa, 465 F.3d 910

(9th Cir. 2007), the court, in effect, converged Gonzales-

Lopez and the Sixth and Eleventh Circuit approach to

complete denial of counsel at a critical stage. After first

noting that Gonzales-Lopez held that denial of counse] of

choice is a structural error requiring reversal, the court

found that the defendant’s claim was different—he was

deprived entirely of counsel. Jd. at 922 n.8. According to

the court, this deprivation was even greater than that suf-

fered by Gonzales-Lopez. Jbid. Having concluded that

there was a complete denial of counsel, the court pre-

sumed prejudice and vacated the decision. /d. at 923.

Commentators have also recognized the tension be-

tween Gonzales-Lopez and the decisions of the Third,

Fourth, and Tenth Circuits regarding the remedy of a

Sixth Amendment violation. For example, one writer has

explained that the Third Circuit’s articulation of Cronic

remains “unsettled law,” particularly in light of the “deep

divisions among the justices” as to when harmless error

analyses are appropriate. See Right to Counsel: Denial of

5 See Richard L. Gabriel, Note, The Strickland Standard for

Claims of Ineffective Assistance of Counsel: Emasculating the

Sixth Amendment in the Guise of Due Process, 134 U. PA. L. REV.

1259, 1261, 1272-81 (1986) (“[T}he Strickland test emasculates

the Sixth Amendment by substituting for the procedural guar-

antee of that amendment a substantive inquiry into the funda-

mental fairness of the result of the trial.”).

17

Counsel at Critical Stage Didn’t Give Rise to Presumption

of Prejudice, 80 CRIM. L. REP. 620 (2007) (reporting on the

conflicting logic of the Third Circuit rule and Gonzales-

Lopez). Others have read Gonzales-Lopez to suggest that

this Court “might take issue with the Fourth Circuit’s rul-

ing [in Owen}.” Right to Counsel: Reversal Not Automatic

for Denial of Counsel at Probable Cause Hearing, 79 CRIM.

L. REP. 702, 703 (2006).

4. The history of the Sixth Amendment and a

straightforward reading of this court’s precedent clearly

support the Sixth, Ninth, and Eleventh Circuits’ approach.

The right to counsel forms the historical core of the Assis-

tance of Counsel Clause. See William M. Beaney, The

Right to Counsel in American Courts 17-21 (1955) (noting

that as early as 1660, Rhode Island enacted a statute

guaranteeing “the lawful privilege of any man that is in-

dicted, to procure an attornye to plead any poynt of law

that may make for the clearing of his innocencye,” and

that, following the Declaration of Independence, nearly

every former colony adopted provisions protecting 2 right

to counsel.) Lessons learned under oppressive kings and

colonial governors left the Framers with a keen apprecia-

tion for the need to protect criminal defendants from the

power of the government. They well understood the im-

portance having an independent voice represent a person

facing the full weight and authority of the Government.

Their solution was to provide not “merely that a defense

shall be made for the accused,” Faretta v. California, 422

U.S. 806, 819 (1975), but that the defendant shall have the

right to decide whether to defend himself through counse!

and, if so, which counsel. And this right—as opposed to

modern principles such as the right to “effective” assis-

tance of counsel—always has been defined and enforced

for its own sake, irrespective of any objectively demon-

18

strable prejudice arising from any particular violation.®

This Court’s modern jurisprudence in cases such as

Cronic, Bell, and Gonzales-Lopez confirms that the right to

counsel does not depend on the defendant’s ability to dem-

onstrate a tangible adverse effect on the adversarial proc-

ess. The right exists on its own terms and furthers goals

above and apart from ensuring an objectively defined fair

trial. To be sure, modern jurisprudence has clarified that

the right to counsel is not absolute and that the general

right of assistance of counsel includes a right to “effective”

assistance. But neither of these developments permits

courts to deny defendants the ability to be represented by

counsel for no legitimate reason. Put another way, neither

of these developments means that defendants who are im-

properly denied their requests to be represented by a

counsel! must demonstrate some level of prejudice to make

out a constitutional violation.

The whole point of including the Assistance of Counsel

Clause in the Constitution was to single out the right to

counsel of choice as one of the select few rights to which

defendants are entitled without having to make any spe-

cific showing of need. Saying that the right is not violated

unless the defendant will suffer (or has suffered) prejudice

6 The right to effective assistance is an implied right, emanat-

ing from an overall purpose of the Sixth Amendment, whereas

the right to counsel is the core concept protected by the Assis-

tance of Counsel Clause. See, e.g., Note, Legislation: The Right

to the Benefit of Counsel Under the Federal Constitution, 42

Colum. L. Rev. 271, 272, 282 (1942) (concluding that “[o]ne of

the most important aspects of the right to counsel is the oppor-

tunity to obtain counsel of one’s own choice,” while observing

that “[t]he right to counsel has begun to mean the right to have

effective assistance of counsel” (emphasis added)). The ap-

proach of the Third, Fourth and Tenth Circuits would collapse

the historic right of counsel of choice into the modern right to

effective assistance.

19

“is akin to dispensing with jury trial because a defendant

is obviously guilty. This is not what the Sixth Amendment

prescribes.” Crawford v. Washington, 541 U.S. 36, 62

(2004); see also Strickland v. Washington, 466 U.S. 668,

711 (1984) (Marshall, J., dissenting) (“The majority con-

tends that the Sixth Amendment is not violated when a

manifestly guilty defendant is convicted after a trial in

which he was represented by a manifestly ineffective at-

torney. I cannot agree.” ).

The decision below, however, erodes the historical pro-

tections of the Sixth Amendment by ignoring the original

intent of the Constitutional amendment and the unavoid-

able teachings of this Court’s decisions. The root purpose

of the right to counsel demands that defendants not face

the prosecution without the assistance of counsel. As the

Sixth, Ninth, and Eleventh Circuits correctly understood,

there simply can be no substitution for the assistance of

counsel at any critical stage of a criminal prosecution.

This case presents the Supreme Court with the oppor-

tunity to eliminate uncertainty by harmonizing two lines

of cases into a consistent analytical framework that serves

the original purposes of the Sixth Amendment, acknowl-

edges the difficulty in assessing the “necessarily unquanti-

fiable and indeterminate” effects of deprivation of counsel,

and brings much-needed clarity to the jurisprudence on

the remedy for Sixth Amendment violations. Definitive

resolution of these issues now will ensure a meaningful

right to counsel at every critical stage of a criminal pro-

ceeding in the future.

II. The Question Presented Is Of Immense Practical

Importance To Prosecutors, Courts, and Crimi-

nal Defendants.

As shown above, the conflict among the lower courts on

the question presented alone warrants this Court’s review.

The practical importance of the questions presented, how-

20

ever, likewise militates strongly in favor of review. Simply

put, the preliminary hearing is, for most prosecutions, the

first time that a defendant is thrust into the adversarial

process. A complete denial of counsel at the outset of the

criminal proceeding places the defendant at an extreme

disadvantage and undermines the public’s confidence in

the final verdict. Preliminary hearings, moreover, are

commonplace in federal and state courts across the coun-

try.

1. The question presented is a recurring and impor-

tant one. More than thirty-five states have some form of a

preliminary hearing, as does the federal government.

Given the ubiquity of preliminary hearings, a uniform ap-

proach would ensure consistent application of important

constitutional rights. Although some of the particulars of

preliminary hearings vary among jurisdictions, the pre-

liminary hearing is a valuable tool for the defense in most

because it provides a “preview” of the government’s evi-

dence and offers a chance to cross-examine police officers

(and others) and get their testimony on record. Should the

government’s witnesses testify differently at trial, the de-

fense can impeach them with any prior inconsistent

statements they made at the preliminary hearing. This

preliminary hearing process is especially important be-

cause witnesses, including police officers, are not legally

obligated to talk to defense counsel as he or she prepares

for trial. Consequently, the preliminary hearing may be

the only time counsel has an opportunity to hear what a

witness has to say prior tc trial.

In Pennsylvania alone, the government tries approxi-

mately 6,000 criminal cases per year in which defendants

must participate in a preliminary hearing.’ Many other

’ Administrative Office of Pennsylvania Courts, Department

of Policy and Research, Dynamic Statistics, available at

http://www.courts.state.pa.us/index/aopc/Research/dynamic_stat

istics/index_research.asp.

21

States, moreover, have substantively similar hearings—

meaning that the question presented here has implica-

tions for tens of thousands of cases annually. The law of

Wisconsin, for example, provides for transcribed prelimi-

nary hearings in which the prosecution presents witnesses

and introduces evidence and the defendant may cross-

examine witnesses against the defendant and call wit-

nesses on the defendant’s own behalf. WIS. STATS. §

970.03 (2005); see also CAL. PENAL CODE § 858-883 (2006)

(same). Similarly, the law of Texas provides for prelimi-

nary “examinations” that permit counsel for the State and

the accused to take transcribed testimony on direct and

cross examination. TEX. CRIM. PROC. CODE ANN. § 16.01

(2004). These statutes are representative of the laws na-

tionwide on the subject, and confirm the tremendous prac-

tical importance of the question presented.®

8 Other states that provide for preliminary hearings include:

Alabama (ALA. CODE § 15-11-6), Arizona (ARIZ. R. CRIM. PROC.

4.2), Arkansas (ARK. CODE ANN. § 5-4-310), Colorado (COLO.

REV. STAT. § 16-5-31), Connecticut (CONN. GEN. STAT. § 54-46a),

Delaware (DEL. CODE Ann. 11 § 5308), Florida (FLA. CRIM. PROC.

L. 907.045), Georgia (GA. CODE ANN. § 27-4), Idaho (IDAHO CODE

§ 19-804), Illinois (725 ILL. Comp. STAT. 5/111-2), Indiana (IND.

CODE § 35-33-7-2), Iowa (IOWA R. CRIM. P. 2.2(4)), Kansas (KAN.

CRIM. PROC. CODE § 22-2902), Louisiana (LA. CODE CRIM. PROC. §

230.2), Maryland (Mb. CODE ANN. § 4-103), Massachusetts

(123A Mass. GEN. LAWS § 12), Michigan (MICH. CRIM. PROC

RULE 6.110), Mississippi (MISS. CODE ANN. § 11-38-5), Missouri

(Mo. REV. STAT. § 544.250), Montana (MONT. CODE. ANN. § 46-

10-202), Nebraska (NEB. REV. STAT. § 29-1607), Nevada (NEV.

REV. STAT. § 171.196), New Hampshire (N.H. REV. STAT. ANN. §

596-A), New York (N.Y. CRIM. Proc. LAW § 180.60), North Da-

kota (N.D. CENT. CODE § 29-07-01.1), Ohio (OHIO REV. CODE

ANN. § 2937.11), Oklahoma (OKLA. STAT. 22 § 258), Oregon (OR.

REV. STAT. § 135.07), Rhode Island (R.I. GEN. LAWS § 13-8-18.1),

South Carolina (S.C. CODE ANN. § 17-23-160), South Dakota

(S.D. LAWS 23A-4-3), Tennessee (TENN. CODE ANN. § 40-10-1011),

Utah (UTAH CODE ANN § 78-3a-603), Vermont (VT. STAT. ANN.

33 § 7-8-105), Virginia (VA. CODE ANN § 19.2-218), Washington

22

This Court’s decisions also recognize that the right to

counsel interposes a vital check on governmental abuse;

respects defendants’ autonomy and dignity; and ensures

that criminal trials appear fair to the public. But when, as

here, a court intentionally deprives a defendant of his

right to counsel, any subsequent trial is necessarily

tainted. Otherwise, the government could refuse to pro-

vide counsel te an indigent defendant—for example, to

save money or help the prosecution—so long as an objec-

tively “fair” trial ensued.? Although the government will

undoubtedly suggest this never would occur because

judges will act in “good faith” with respect to providing

counsel, such assurances are not sufficient when it comes

to liberties that the Framers enshrined in the Sixth

Amendment. See Crawford, 541 U.S. at 67 (“The Fram-

ers, however, would not have been content to indulge this

assumption. They knew that judges, like other govern-

ment officers, could not always be trusted to safeguard the

rights of the people.”).

2. Practical considerations also weigh heavily in favor

of rejecting the Third Circuit’s re-conceptualization of the

right to counsel. As an initial matter, the right to counsel

performs an important institutional role: when the gov-

ernment unjustifiably interferes with the accused’s re-

tained ccunsel, the government “creates an appearance of

(WASH. REV. CODE § 10.16.110), West Virginia (W. VA. CODE

§ 49-5-9), and Wyoming (Wyo. STAT. ANN. § 7-8-105).

® Roughly eighty percent of criminal defendants in the state

courts are indigent and thus require appointed counsel. See

Caroline W. Harlow, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T

OF JUSTICE, Defense Counsel In Criminal Cases 1 (2000), avail-

able at http://www.ojp.usdoj.gov/bjs/pub/pdf/dcece.pdf (reporting

that eighty-two percent of state felony defendants in the nation’s

seventy-five most populous counties in 1996 and sixty-six per-

cent of federal felony defendants in 1998 had publicly appointed

counse]l).

23

impropriety that diminishes faith in the fairness of the

criminal justice system in general.” Young v. United States

ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811 (1987) (plu-

rality opinion).

The Third Circuit’s approach would also dramatically

shift the incentives faced by prosecutors, courts, and de-

fendants alike. With respect to prosecutors, the effective

removal of any cost to arguing against or contacting un-

represented defendants—since retrial would be required

only in the rare case when the defendant could show that

the subsequent trial was “unfair’—would create an incen-

tive for overzealous prosecutors to seek to delay appoint-

ment of counsel or deny access to counsel entirely. With

respect to courts, the Third Circuit’s approach deprives

the judges of the benefits of the adversarial process, tip-

ping the balance of the inquiry in favor of the prosecution.

The Third Circuit’s rule would also deflect attention from

the constitutionally-recognized interests of defendants in

proceeding with the aid of counsel and toward a wholly

hypothetical inquiry into whether the presence of counsel

would have changed the outcome of the proceeding or oth-

erwise harmed the defendant. And with respect to defen-

dants, the Third Circuit’s rule would create a series of

perverse incentives that would force them to choose be-

tween preserving and vindicating their right to their coun-

sel on the one hand and accepting a plea that may be oth-

erwise in their best interest on the other.

What is more, the Third Circuit’s rule would create a

new and unwieldy kind of habeas litigation. Defendants

seeking to vindicate their right to counsel would have no

choice but to file collateral causes of action in order to

prove prejudice at evidentiary hearings involving trials-

within-trials. A rule requiring defendants to prove preju-

dice in order to establish a violation of the constitutional

right to counsel would be quite difficult for trial courts to

administer and extremely costly and inefficient for appel-

24

late courts to police. This would increase the burden on

already over-stretched judicial resources.

3. Finally, a decision by this Court definitively estab-

lishing the legal standards by which remedies for Sixth

Amendment violations are evaluated will very likely re-

duce the litigation burdens on both defendants and prose-

cutors alike. The Sixth Amendment is implicated in more

than 25% of all habeas petitions, or more than 5000 ha-

beas petitions per year.'!° Uncertainty in any area of the

law breeds litigation. But that is particularly true in this

area, which provides the baseline set of constitutional pro-

tections in both state and federal courts, and in which

lower courts are deeply divided over the applicable legal

framework. A definitive approach to remedying Sixth

Amendment violations will allow defendants and prosecu-

tors, at the state and federal level, more easily to predict

the outcome of litigation and, for that reason, more readily

to fashion compromises acceptable to both sides.

In sum, criminal defendants regularly suffer from con-

straints on their Sixth Amendment rights as a result of

both deliberate and inadvertent denials of their right to

counsel. Although the Constitution is designed to amelio-

rate such problems, lower courts have interpreted the

remedy for such violations inconsistently, in some cases

rendering important legal protections largely ineffective,

while at the same time spawning unnecessary litigation

over their application. Only this Court can provide consis-

tent standards for evaluating under the U.S. Constitution

the appropriate remedy for Sixth Amendment violations

nationally.

10 See Roger A. Hanson and Henry W.K. Daley, BUREAU OF

JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, Federal Habeas

Corpus Review, at 8-9, 14 (1995), available’ at

http://www.ojp.usdoj.gov/bjs/pub/pdf/fherescc. pdf.

25

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

STEFFEN N. JOHNSON

TYSON R. SMITH*

Winston & Strawn LLP

1700 K Street, N.W.

Washington, D.C. 20006

(202) 282-5000

*Counsel of Record .

Counsel for Petitioner

JULY 2007

APPENDIX

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

C.A. No. 04-164-Erie

District Judge McLaughlin

Magistrate Judge Baxter

——

TYSON A. DITCH,

Petitioner,

Vv.

JAMES L. GRACE,

Respondent.

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

)e RECOMMENDATION

It is respectfully recommended that the Petition

for Writ of Habeas Corpus be dismissed and that a certifi-

cate of appealability be denied.

II. REPORT

This is a petition for writ of habeas corpus filed by

2a

a state prisoner incarcerated at the State Correctional

Institution at Huntingdon (“SCl-Huntingdon”). Peti-

tioner is serving an aggregated sentence of 7% to 15

years that was imposed on June 4, 1999, for his convic-

tion of Criminal Attempt to Commit Burglary (18

Pa.C.S.A. § 901, 3502(c)(1)), Recklessly Endangering (19

Pa.C.S.A. § 2705), Person Not to Possess a Firearm (18

Pa.C.S.A. § 6105), and Criminal Mischief (18 Pa.C.S.A.

§ 3304). The charges arose from an incident that oc-

curred in the early morning on February 18, 1998, when

Petitioner allegedly fired ten shots from a 9mm handgun

into the front door of an apartment belonging to his for-

mer girlfriend and fled the scene. The only witness who

identified Petitioner as the assailant was legally blind at

the time of the shooting. (See Petition, Exhibit A).

A. Procedural History

Petitioner’s jury trial ended on or about Janu-

ary 22, 1999. After his sentencing on June 4, 1999, Peti-

tioner filed a post-sentence motion for judgment of acquit-

tal and/or a new trial, raising the following claims:

1. The evidence presented at a trial

was insufficient to connect him to

the crimes of which he was con-

victed.

2. His trial counsel was ineffective for

failing to file a pretria! motion to

suppress or limit the testimony of

the identification witness.

3. His trial counsel was ineffective for

failing to call a defense witness,

Jamal Harris.

4, His trial counsel was ineffective for

failing to make a motion to sever

10.

3a

the Persons Not to Posses Fire-

arms charge from the other

charges.

His trial counsel was ineffective for

failing to include in his suppres-

sion motion alleged misstatements

of material fact that were con-

tained in the affidavit of probably

cause for the search warrant that

was used to recover a 9mm hand-

gun from his residence.

His trial counsel was ineffective for

failing to object to the Common-

wealth’s failure to present as a

witnesses the police officer who

completed the affidavit of probable

cause for the search warrant.

His trail counsel was ineffective for

failing to cross-examine a Com-

monwealth witness about his prior

convictions in an attempt to dimin-

ish his credibility.

His trail counsel was ineffective for

failing to file a motion for a new

preliminary hearing.

His trail counsel was ineffective for

declining the trial judge’s offer of a

corrective instruction after a

Commonwealth witness testified

that Petitioner was previously “on

the run.”

His trial counsel was ineffective for

failing to file a motion for a new

11.

12.

13.

14,

15.

16.

4a

trail immediately upon discovering

at trial that the arresting officers

allegedly violated the “knock and

announce” rule when executing the

search warrant.

The trial court erred in not grant-

ing a mistrial when a Common-

wealth witness testified that the

Petitioner was previously “in West

Virginia on the run.”

The trial court erred in not allow-

ing the identification witness a

second chance to identify Peti-

tioner after stating from the wit-

ness stand that he did not see the

alleged perpetrator in the court

room.

The trial court erred as a matter of

law when it interjected its opinions

as to the facts of the case.

The trial court erred in failing to

give cautionary instructions re-

garding the in-court identification

of Petitioner, on the second at-

tempt, by the identification wit-

nesses, who was legally blind.

The trial court erred in denying

Petitioner’s motion to suppress the

evidence obtained pursuant to the

search warrant based on the “four

corners” rule.

His trial was ineffective for failing

to request a cautionary instruction

5a

regarding the in-court identifica-

tion of Petitioner by the identifica-

tion witness. !

(See Document #13, Respondent’s Reproduced Record,

Volume I, at pp. 60-71, 100). By Memorandum and Order

dated December 20, 1999, the trial court determined that

none of the issues raised by Petitioner in his post-

sentence motions had merit, except for Petitioner’s claims

that his trial counsel was ineffective for failing to call

Jamal Harris as a defense witness, for which an eviden-

tiary hearing was found to be necessary. (See Document

#13, Respondent’s Reproduced Record, Volume I, at p.

133). After an evidentiary hearing was held on March 29,

2000, the trial court denied Petitioner’s post-sentence mo-

tions by Memorandum Order dated April 19, 2000. (See

Document #13, Respondent’s Reproduced Record, Volume

I, at pp. 184-137).

Petitioner filed a direct appeal to the Pennsy]l-

vania Superior Court on or about July 26, 2000, raising

the following issues:

1. Whether the evidence presented by

the Commonwealth at Appellant’s

trial was insufficient to support

conviction for the crimes charged?

2. Whether trial counsel was ineffec-

tive for failing to file a pretrial mo-

tion to suppress the unduly sug-

gestive one-on-one identification at

Appellant’s Preliminary Hearing

in violation on his right to counsel

and due process rights?

1 This claim was added by Petitioner in a supplemental post-

sentence motion that was filed on July 1, 1999.

6a

3. Whether trial counsel was ineffec-

tive for failing to call defense wit-

ness Jamal Harris?

4. Whether trial counsel was ineffec-

tive for failing to make a motion to

sever the Persons Not to Possess

Firearms from the other charges

against him?

5. Whether tria! counsel was ineffec-

tive for failing to file a pretrial

suppression motion challenging

the misstatements of material fact

in the affidavit of probable cause

for the search warrant?

6. Whether trial counsel was ineffec-

tive for failing to request a cau-

tionary instruction regarding the

in-court identification?

A Whether the trial court erred in

denying trial counsel’s request for

a mistrial when a witness testified

“'w|jhen he (Appellant) was in West

Virginia on the run”?

8. Whether the trial court erred when

it allowed witness Ronald Fry a

second chance to identify Appel-

lant and interjected its opinions as

to the facts of the case?

9. Whether the trial court erred in

denying Appellant’s pretrial mo-

tion challenging the sufficiency of

the affidavit of probable cause?

(See Document #16, Resp ndent’s Reproduced Record,

7a

Vol. IV, Document 2). On May 3, 2001, the Superior

Court issues a thirty-nine page opinion affirming the trial

court’s judgment. (See Document #16, Respondent’s Re-

produced Record, Vol. [V, Document 4). After Petitioner

unsuccessfully filed a pro se petition for reconsideration

en banc with the Supreme Court, Petitioner’s court-

appointed appellate counsel filed a tardy petition for al-

lowance of appeal nunc pro tunc to the Pennsylvania Su-

preme Court, which was denied on September 24, 2001.

(See Document #16, Respondent’s Reproduced Record,

Vol. IV, Documents 5 and 6).

On October 25, 2001, Petitioner filed a pro se peti-

tion for post-conviction collateral relief (“PCRA petition”)

raising the following claims:

1. Trial counsel was ineffective for

failing to seek a new preliminary

hearing.

2. Trial counsel was ineffective for

failing to attack the veracity of the

affidavit of probable cause for the

search warrant.

3. Trial counsel was ineffective for

failing to obtain an independent

ballistic examination of certain

ballistics evidence used against Pe-

titioner at trial.

4. Tria! counsel was ineffective for

failing to impeach at trail three

Commonwealth witnesses with

contradictory ballistics evidence

that was obtained in discovery.

Trial counsel was ineffective for

failing to impeach the Common-

or

7.

10.

8a

wealth’s identification witness

with the witness’s vague initial

statement regarding the identify of

the perpetrator of the crimes of

which Petitioner was convicted.

Trial counsel was ineffective for

failing to object to the testimony of

the Commonwealth’s identification

witness and appellate counsel was

ineffective for failing to preserve

this issue on appeal.

The prosecutor committed prosecu-

torial misconduct by knowingly

and deliberately soliciting perjured

testimony from police officer wit-

ness regarding the number and

identify of firearms found at Peti-

tioner’s residence.

The prosecutor committed prosecu-

torial misconduct by knowingly so-

liciting perjured testimony from a

ballistics examiner at trial.

The prosecutor committed prosecu-

torial misconduct by eliciting un-

counseled preliminary hearing

identification testimony from the

Commonwealth's identification

witness.

The prosecutor committed prosecu-

torial misconduct by knowingly so-

liciting perjured testimony from a

records and identification expert

regarding the manufacture of a

9a

shell casing that was found at the

crime scene.

11. Appellate counsel was ineffective

for failing to adequately raise and

present on direct appeal the follow-

ing two issues: whether the affi-

ant’s statements in the affidavit of

probable cause for a search war-

rant was contradicted by other

evidence so as to undermine the

finding of probable cause; and the

issue of whether the trial court

erred in permitting the Common-

wealth’s identification witness to

leave the witness stand to identify

Petitioner as the perpetrator of the

crimes of which he was convicted.

13. Appellate counsel was ineffective

for failing to file a motion for re-

consideration by the Superior

Court.

13. Both the tria! and appellate courts

committed error in overlooking ex-

hibits attached to Petitioner’s brief

in support of his claims.

(See Document #16, Respondent’s Reproduced Record,

Vol. IV, Documents 7 and 9).

On October 26, 2001, the trial court appointed

counsel for Petitioner’s PCRA petition, and argument on

the petition was held on January 31, 2002. On June 6,

2002, the trial court entered a Memoran im and Order

discussing the warious arguments made by Petitioner and

determined that certain of the issues required an eviden-

tiary hearing. As a result, an evidentiary hearing on Pe-

10a

titioner’s PCRA petition was held by the trial court on

August 26, 2002. (See Document #16, Respondent’s Re-

produced Record, Vol. IV, Document 8). .On December 6,

2002, Petitioner’s PCRA counsel filed a memorandum in

support of Petitioner’s PCRA petition, in which he urged

the court to reinstate Petitioner’s right to Petition for Al-

lowance of Appeal to the Pennsylvania Supreme Court

Nunc Pro Tunc and not further determine the merits of

the remaining issues stated in the PCRA petition. (See

Document #16, Respondent’s Reproduced Record, Vol. IV,

Document 9 at pp. 14-15).

Based on Petitioner’s December 6, 2002 memoran-

dum, the trial court entered a Memorandum and Order,

dated April 28, 2003, granting Petitioner the limited post-

conviction relief of allowing him to file a Petition for Al-

lowance of Appeal to the Supreme Court regarding the

Superior Court’s denial of his direct appeal. (See Docu-

ment #16, Respondent’s Reproduced Record, Vol. IV,

Document 11 at p. 5). As a result, Petitioner filed a Peti-

tion for Allowance of Appeal Nunc Pro Tunc with the

Pennsylvania Supreme court on May 28, 2003, which

raised all of the issues that were presented to the Penn-

sylvania Superior Court on direct appeal. This petition

was denied by the Supreme Court on December 30, 2003.

(See Document #16, Respondent’s Reproduced Record,

Vol. IV, Documents 12 and 13).

Petitioner has filed the instant petition for writ of

habeas corpus on July 22, 2004, presenting the identical

claims he raised on direct appeal to the Pennsylvania Su-

perior Court. [Document #2]. The Commonwealth has

filed an answer to the petition [Document #18] and Peti-

tioner has filed a response to the Commonwealth’s an-

swer. [Document #20]. The petition is now ripe for dis-

position.

B. Facts of the Crime

lla

The Superior Court summarized the facts underly-

ing petitioner’s conviction as follows:

On February 18, 1998, at approximately

2:45 a.m., Dasha Yenny, the victim and

[Petitioner’s] former girlfriend, reported

to police that someone has shot a gun into

the front door of the apartment where

she, her young child, and her boyfriend,

Jeffrey Barksdale, were sleeping. The po-

lice found a casing from a 9mm bullet out-

side the victim’s apartment and believed

that the bullet holes found in the victim’s

door were made from a gun similar to this

caliber. The victim told the investigating

officer that she had recently been receiv-

ing harassing telephone calls from [Peti-

tioner] in which [Petitioner] had threat-

ened her with physical harm. The victim

also related to the officer that [Petitioner]

had been arrested in the past for harass-

ing and physically abusing her.

While the officer was at the scene, [Peti-

tioner] called the victim on the telephone.

When the officer attempted to speak to

[Petitioner], [Petitioner] terminated the

call. A phone trace of this call determined

that it had originated from the residence

of [Petitioner’s] brother. The victim in-

formed the officer that [Petitioner] resided

at his brother’s residence. A firearms

ownership inquiry determined that two

9mm handguns were registered to [Peti-

tioner’s] brother.

A neighbor in an apartment near the vic-

tim’s apartment reported to the investi-

12a

gating officer that he heard the shots fired

into the victim’s apartment. The neighbor

further reported that he subsequently saw

an individual leave the area and enter a

white automobile. The neighbor stated

that the white automobile then left the

scene.

Troopers from the Pennsylvania State Po-

lice, at approximately 3:30 a.m., drove to

[Petitioner’s] brother’s residence, and ob-

served a white automobile parked nearby.

The troopers felt the hood of the automo-

bile and determined it was still warm to

the touch. Based upon the above informa-

tion, search warrants were issued.

Later that morning, the Pennsylvania

State Police executive the search war-

rants on the residence of [Petitioner’s]

brother. During the course of the search,

the police found [Petitioner] sleeping in

the attic of the residence. [Petitioner] was

the only occupant of the residence at the

time of the search. Approximately fifteen

(15) feet away from [Petitioner], a 9mm

Ruger pistol was found under some cloth-

ing. The Pennsylvania State Police Labo-

ratory analyzed the 9mm Ruger pistol and

determined that it holds ten rounds of

ammunition, and that the fragments from

at least one of the bullets found at the

crime scene were fired from this pistol. In

addition, laboratory analysis also deter-

mined that the one spent shell casing

found at the scene was fired from that

same gun.

13a

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at pp. 1-3. (citations to trial court opin-

ion omitted).

C. Exhaustion

The first issue in any habeas corpus proceeding

instituted by a state prisoner is whether the petitioner

has exhausted his state court remedies. Exhaustion re-

quires that the claims presented in the federal court have

been presented in substantially the same form to the

state’s highest court, with identity of both facts and legal

theory. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989).

Even if the claims have been so presented to the state’s

highest court, “[a]n applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State .. . if he has the right under the law of the State to

raise, by any available procedure, the question pre-

sented.” 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S.

346 (1989). And, although the requirement is not juris-

dictional, it “should be strictly adhered to because it ex-

presses respect for our dual judicial system and concern

for harmonious relations between the two adjudicatory

institutions.” Landano vu. Rafferty, 897 F.2d 661, 669

(1990). The requirement also recognizes the duty, and

ability, of the state courts to uphold federal law, and

serves the interest of ensuring a fully developed record in

the state court. Jd. “[S]tate prisoners must give the state

courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s es-

tablished appellate review process.” O'Sullivan uv.

Boerckel, 526 U.S. 838, 845 (1999).

Each of petitioner’s claims has been presented to

the state courts at all levels, including on appeal to the

Superior Court and to the Supreme Court of Pennsy]l-

vania. State court remedies have, therefore, been ex-

hausted.

14a

D. Standard of Review

“Under 28 U.S.C. § 2254(d), a federal court may

grant habeas relief only if the state court’s decision was

‘contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Su-

perior Court of the United States,’ id. § 2254(d)(1), or was

‘based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceed-

ing, id. § 2254(d)(2). [footnote omitted]. Moreover, a

state court’s factual findings are ‘presumed to be correct,’

and the habeas petitioner carries the ‘burden of rebutting

the presumption of correctness by clear and convincing

evidence.’ 28 U.S.C. § 2254(e)(1).”. Chadwick v. Janecka,

312 F.3d 597, 606-07 (3d Cir. 2002). In Williams v. Tay-

lor, 529 U.S. 362 (2000), Justice O’Connor, writing the

opinion of the Court in Part II, discussed the independent

meanings of the “contrary to” and “unreasonable applica-

tion” clauses contained within section 2254(d)(1).

Under the “contrary to” clause, a federal

habeas court may grant the writ if the

state court arrives at a conclusion oppo-

site to that reached by this Court on a

question of law or if the state court de-

cides a case differently than this Court

has on a set of materially indistinguish-

able facts. Under the “unreasonable ap-

plication” clause, a federal habeas court

may grant the writ if the state court iden-

tifies the correct governing legal principle

from this Court’s decisions but unreason-

able applies that principle to the facts of

the prisoner's case.

Williams, 529 U.S. at 411-13.

The Supreme Court further clarified that a federal

15a

habeas court making the unreasonable application in-

quiry should ask whether the state court’s application of

clearly established federal law was objectively unreason-

able. Id. at 409. “Under § 2254(d)(1)’s unreasonable ap-

plication clause, then, a federal habeas court may not is-

sue the writ simply because that court concludes in its

independent judgment that the relevant state-court deci-

sion applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unrea-

_sonable.” Jd. at 411. These standards apply also to

mixed questions of fact and law, such as whether trial

counsel provided effective assistance of counsel. Werts v.

Vaughn, 228 F.3d 178, 204 (8d Cir. 2000), cert. denied,

121 S.Ct. 1621 (2001).

E. Merits

1. - Ineffective Assistance of Counsel —

In this case, five of the nine issues raised by Peti-

tioner require this Court to determine if the state court’s

decision is an unreasonable application of the standard

applicable to claims of ineffective assistance of counsel.

The Sixth Amendment right to counsel exists “in order to

protect the fundamental right to a fair trial.” Lockhart v.

Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v.

Washington, 466 U.S. 668, 684 (1984)).

Thus the right to the effective assistance

of counsel is recognized not for its own

sake, but because of the effect it has on

the ability of the accused to receive a fair

trial. Absent some effect of challenged

conduct on the reliability of the trial proc-

ess, the Sixth Amendment guarantee is

generally not implicated.

Fretwell, 506 U.S. at 369 (citing United States v. Cronic,

466 U.S. 648, 658 (1984)). See also Kimmelman v. Morri-

16a

son, 477 U.S. 365, 374 (1986) (the essence of a claim al-

leging ineffective assistance is whether counsel’s unpro-

fessional errors so upset the adversarial balance between

defense and prosecution that the trial was rendered un-

fair and the verdict rendered suspect).

The Supreme Court has formulated a two-part test

for determining whether counsel rendered constitution-

ally ineffective assistance: 1) counsel’s performance was

unreasonable; and 2) counsel's unreasonable performance

actually prejudiced the defense. Strickland, 466 U.S. at

687. To determine whether counsel performed below the

level expected from a reasonable competent attorney, it is

necessary to judge counsel’s challenged conduct on the

facts of the particular case, viewed at the time of coun-

sel’s conduct. Strickland, 466 U.S. at 690. A petitioner

who claims that he or she was denied effective assistance

of counsel carries the burden of proof. Cronic, 466 U.S. at

658.

The first prong of the Strickland test requires a

defendant to establish that his attorney’s representation

fell below an objective standard of reasonableness by

committing errors so serious that he or she was not func-

tioning as the “counse!” guaranteed by the Sixth Amend-

ment. Strickland, 466 U.S. at 688. A court must indulge

a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that,

under the totality of the circumstances, the challenged

action “might be considered sound trial strategy.” Jd. at

689. The question is not whether the defense was free

from errors of judgment, but whether counsel exercised

the customary skill and knowledge that normally pre-

vailed at the time and place. /d.

The second prong requires a defendant to demon-

strate that counsel’s errors deprived him a fair trial and

17a

the result was unfair or unreliable. Strickland, 466 U.S.

at 689. To prove prejudice, a defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694 (empha-

sis added). A “reasonable probability” is one that is suffi-

cient to undermine confidence in the outcome. Id.

In this case, the state court properly identified the

standards governing claims of constitutionally ineffective

assistance, so that the decision of the state court is not

“contrary to” federal law.2, Whether the state court ap-

plied the ineffective assistance standard in an “objectively

unreasonable fashion” must now be addressed.

a. Failure to File Pretrial Motion

to Suppress In-Court Identifica-

tion

Petitioner’s first ineffectiveness claim challenges

his trial counsel’s failure to file a pretrial motion to sup-

press the in-court identification of Petitioner by the

Commonwealth’s identification witness because the wit-

ness’s pretrial identification of Petitioner was “impermis-

sibly suggestive.” In particular, Petitioner argues that

the identification of Petitioner at his preliminary hearing

was “unduly suggestive” because he was led into the

hearing wearing handcuffs. Petitioner argues further

that, due to the alleged taint of the pretrial identification,

the subsequent in-court identification violated Peti-

tioner’s due process rights.

2 The standards utilized by the Superior Court were actually

based upon two prior Superior Court decisions, Commonwealth

v. Randall, 758 A.2d 669 (Pa.Supper. 2000) and Commonwealth

v. Howard, 749 A.2d 941 (Pa.Supper. 2000), which set forth

principles to be followed in analyzing ineffectiveness claims

that are substantially similar to those pronounced by the

United States Supreme Court in Strickland.

18a

The trial court concluded that there was no merit

to Petitioner’s claim because there was an independent

basis for the in-court identification. In particular, the

trial court found as follows:

At trial [the identification witness] testi-

fied that he looked out of the picture win-

dow of his apartment, which was next

door to the apartment where the shooting

occurred, and observed the [Petitioner], at

a distance of approximately 15 feet and

under well-lit conditions, walk from the

apartment building, stop, turn and look

around before he left the scene. Under

the totality of the circumstances, we are

satisfied that there existed a sufficiently

independent origin for [the witness’s] in-

court identification of [Petitioner]j.... As

such, even if the identification of the [Pe-

titioner] at his preliminary hearing could

be deemed suggestive, an independent ba-

sis existed for [the witness’s] in-court

identification of the [Petitioner]. There-

fore, even had trial counsel made a motion

to suppress the identification, it would

have been denied.

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at pp. 11-12. (citations to the trial court

opinion omitted).

Upon review of the record, the Superior Court af-

firmed the trial court’s conclusion that Petitioner’s trial

counsel was not ineffective for failing to file a motion to

suppress the in-court identification because there was an

independent basis for it. This was a reasonable applica-

tion of the ineffective assistance standard based upon a

correct statement of the law under federal constitutional

19a

principles. See Commonwealth v. Glover, 488 Pa. 459,

468, 412 A.2d. 855, 860 (1980)(quoting United States v.

Wade, 388.U.S. 218, 241 (1967)(“[a]n in-court identifica-

tion following an illegal out-of-court identification is ad-

missible into evidence if, considering the totality of cir-

cumstances, it is determined that the in-court identifica-

tion had an independent origin ‘sufficiently distinguish-

able to be purged of the primary taint”). Thus, the state

courts’ determination in this regard did not result in a

decision that is “contrary to,” or an “unreasonable appli-

cation of,” clearly established federal law that would jus-

tify habeas relief on this claim.

20a

b. Failure to Call Defense Witness

Jamal Harris

Petitioner’s second ineffectiveness claim is that his

trial counsel was ineffective for failing to call Jamal] Har-

ris (“Harris”) as a defense witness because, according to

Petitioner, Harris’s testimony would have proven that

Petitioner did not have access to the white vehicle that

police believed to have been used as the get-away vehicle.

Petitioner must show that his trial counsel was deficient

for not calling Harris as a defense witness, and that but

for that deficiency, the outcome of Petitioner’s trial would

have been different. Strickland, 466 U.S. at 687.5

Harris testified at a post-sentence evidentiary

hearing on Petitioner’s claim, which was summarized by

the trial court as follows:

At the time of the evidentiary hearing,

Jamal Harris testified that on the evening

of February 17, 1998, he was at the resi-

dence of [Petitioner’s brother] at 416

Fairmont Avenue. He said he was watch-

ing television and drinking a couple of

beers and that the [Petitioner] was also

present at the residence.

Mr. Harris testified that he and Kevin

Thompson arrived at that Fairmont Ave-

nue residence at approximately 6:00 p.m.,

on February 17, 1998, and that they got

there in a white Buick LeSabre, which

was owned by Kevin Thompson.

* Counsel's failure to call or bypass a particular witness is a

non-fundamental decision reserved to counsel's professional

judgment. United States v. Long, 674 F.2d 848, 855 (11* Cir.

1982); United States v. Gallego, 944 F. Supp. 309, 319 (S.D.N.Y.

1996).

2la

Mr. Harris further testified that he left

the .. . residence at approximately 12:30

a.m., to 1:00 a.m., on February 17, 1998,

and that Kevin Thompson apparently had

already left that residence. Mr. Harris

testified that the white Buick LeSabre

was left for him to drive, but that it would

not start because the ignition was bad and

[Petitioner’s brother], therefore, took Mr.

Harris home.

Mr. Harris further testified that he had

one set of keys to that vehicle and he did

not give them to [Petitioner] and that fur-

ther, [Petitioner] was not a good driver

and Kevin Thompson would not have al-

lowed him to drive the car.

Mr. Harris testified that he either didn’t

talk to the [Petitioner’s] trial counsel or if

he did, he was only asked a couple of

questions by that attorney.

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at p. 14.

Petitioner’s trial counsel also provided testimony

at the post-sentence hearing, which was summarized by

the trial court, in relevant part, as follows:

. the attorney testified that when he

talked to Jamal Harris, he decided not to

call Mr. Harris because he could not sub-

stantiate that the car was there after ap-

proximately a couple of hours prior to the

incident.... Specifically, Mr. Harris could

not testify that the car was at the Fair-

mont Avenue address after 1:00 a.m.

22a

[Petitioner’s trial counsel] indicated that

he had no recollection of Jamal Harris

telling him that the car would not start

nor that [Petitioner] was not permitted to

drive the car and if that information had

been brought to his attention, he may well

have called Jamal Harris to testify.

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at p. 15.

In light of the foregoing testimony, the trial court

concluded that Petitioner’s trial counsel was not ineffec-

tive for failing to call Harris as a defense witness. Spe-

cifically, the trial court found that:

Based on the testimony we have heard, it

was very reasonable for trial counsel for

the [Petitioner] to pursue the defense that

he pursued and likewise, reasonable,

based on the information that he recalls

and testified to, not to call Mr. Harris

since the only thing he had to offer from

trial counsel’s recollection was that the

car in question was in the driveway at

Fairmont Avenue at approximately 1:00

a.m., or about an hour and forty minutes

prior to the incident for which the [Peti-

tioner] was convicted. We cannot find

that counsel was ineffective.

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at p. 17.

On appeal, the Superior Court agreed with the

trial court’s conclusion that Petitioner failed to prove his

trial counsel was ineffective for not calling Harris as a

defense witness because he “failed to demonstrate: (1)

that trial counsel’s strategy not to call Mr. Harris as a

23a

witness was unreasonable in light of the information

available to counsel at the time of trial; and (2) that [Peti-

tioner] was prejudiced by the absence of Mr. Harris’s tes-

timony.” (See Document #16, Respondent’s Reproduced

Record, Vol. IV, Document 4 at p. 17). This conclusion

was based on a correct application of the Strickland stan-

dards and, thus, was not “contrary to,” or an “unreason-

able application of,” clearly established federal law that

would justify habeas relief on this claim.

Cc. Failure to Make a Motion to

Sever the “Persons Not to Pos-

sess Firearms” Charge From

the Other Charges

Petitioner contends that his trial counsel was inef-

fective for failing to file a motion to sever the “Person’s

Not to Possess Firearms” charge (“Firearms charge”) from

the rest of the charges against him. In particular, Peti-

tioner claims that he was prejudiced by the failure to

sever the Firearms charge because the jury was made

aware of his prior violent criminal history during the jury

instructions on the elements of this charge.

Upon consideration of this claim, the Superior

Court found that “[sJince the Commonwealth did not

demonstrate that [evidence of prior crimes] would be oth-

erwise admissible as to the other charges ..., the trial

court, upon receiving a motion for severance of the [Fire-

arms charge], would have been obliged to grant said mo-

tion. Accordingly, we conclude that [Petitioner’s] claim

that trial counsel should have filed a motion for severance

of the [Firearms charge] has merit.” The Superior Court

concluded further that “trial counsel possessed no rea-

sonable strategic basis in failing to file a motion to sever

the [Firearms charge].” As a result, the Superior Court

turned to the question of whether trial counsel's error

caused Petitioner prejudice, such that a reasonable prob-

24a

ability exists that, “but for” counsel’s error, the outcome

of the proceeding would have been different. (See Docu-

ment #16, Respondent’s Reproduced Record, Vol. IV,

Document 4 at pp. 20-21).

After reviewing the “overwhelming evidence” that

was presented at trial, the Superior Court concluded that

Petitioner failed to establish that he suffered prejudice as

a result of trial counsel’s error, because the result would

not have been different “but for” the error. (See Docu-

ment #16, Respondent’s Reproduced Record, Vol. IV,

Document 4 at p. 21-22). This conclusion was based on a

correct application of the Strickiand standards and, thus,

was not “contrary to,” or an “unreasonable application of,”

clearly established federal law that would justify habeas

relief on this claim. 3

d. Failure to File Pretrial Motion

Challenging “Misstatements of

Material Fact in the Affidavit

of Probable Cause for the

Search Warrant”

Petitioner alleges that the affidavit of probable

cause contained the following misstatements and/or

omissions of material fact: (i) withheld the fact that the

identification witness was legally blind; (ii) erroneously

stated that Petitioner had threatened the victim and the

victim’s boyfriend; (iii) misrepresented the investigation

of the alleged white get-away car; and (iv) embellished

the identification witness’s account of the movements of

the white car. (See Document #16, Respondent’s Repro-

duced Record, Vol. IV, Document 4 at p. 22.) Petitioner

contends that, but for these alleged misstatements and/or

omissions, -there was insufficient probable cause to sup-

port the search warrants that were used to obtain the

9mm handgun and shell casing that were introduced as

evidence at trial. As a result, Petitioner claims that his

25a

trial counsel was ineffective for failing to file a pretrial

motion challenging the alleged misstatements and/or

omissions.

26a

i. Identification Witness’s

Vision Impairment

With respect to the first alleged omission, the trial

court concluded that “[t]here has been no evidence offered

by the [Petitioner] that the [affiant] was aware that [the

identification witness] was legally blind, that he knew of

this and deliberately withheld this fact or that [the iden-

tification witness’s] vision impairment rendered it an im-

possibility for him to have made the observations he re-

lated to the [affiant].” (See Document #13, Respondent’s

Reproduced Record, Vol. I, at p. 61). Moreover, the trial

court noted that “the disclosure of [the identification wit-

ness’s vision impairment], had the affiant been actually

aware of [the impairment] at the time the warrant was

requested, would have merely affected the weight which

district justice may have afforded [the witness’s] state-

ments.” (See Document #13, Respondent’s Reproduced

Record, Vol. I, at p. 61). The Superior Court affirmed the

trial court’s conclusion in this regard, finding that it was

supported by the record. (See Document #16, Respon-

dent’s Reproduced Record, Vol. IV., Document 4 at p. 24).

After reviewing the record, this Court finds that the Sta:e

court’s conclusion in this regard was based on a reason-

able determination of the facts in light of the evidence

presented in the State court proceeding. See Chadwick,

312 F.3d at 606-07.

ii. Petitioner’s Threats To-

ward Victim

With regard to the second alleged “misstatement”

that the victim told the affiant that Petitioner had

threatened her, the Superior Court reviewed the record

and found that the affidavit was supported by certain

evidence that was presented at trial. In particular, the

Superior Court noted that: the victim testified that Peti-

tioner had made a number of harassing telephone calls to

27a

her apartment on the night of the incident; the victim’s

boyfriend testified that, in the past, Petitioner had physi-

cally threatened both the victim and him; and telephone

tracing evidence confirmed that telephone calls made to

the victims’ apartment shortly after the incident origi-

nated from the residence of Petitioner’s brother. As a re-

sult, the Superior Court concluded that, although the vic-

tim testified at trial that Petitioner did not physically

threaten her on the night of the incident, Petitioner had

“failed to demonstrate that [the] affidavit included mis-

statements of what the victim told [the affiant] the night

of the incident, or alternatively that any possible error in

documenting what the victim told him was deliberate.”

(See Document #16, Respondent’s Reproduced ‘Record,

Vol. IV., Document 4 at p. 24). Here, Petitioner has failed

to meet his burden of rebutting the presumption of cor-

rectness in the State court’s findings by clear and con-

vincing evidence. See Chadwick, 312 F.3d at 606-07.

iii. Investigation of White

Getaway Car

The third alleged “misstatement” raised by Peti-

tioner concerns the affidavit’s details of the investigation

of the white “getaway” vehicle. The Superior Court re-

counted Petitioner’s argument in this regard, in its en-

tirety, as follows:

Trial testimony reveals that the white ve-

hicle was inspected by Corporal Dumble-

ton prior to 3:30 a.m., contrary to the fact

that he left the scene and went on to in-

vestigate a separate case at 3:30 a.m. ....

This search is suspicious considering the

fact that the only source of the informa-

tion regarding a white car was not inter-

viewed until 3:35 a.m.... Evidence that

the hood of the white car was ‘warm to the

28a

touch’ is tainted by the omission of this

contradiction in the affidavit.

See Document #16, Respondent’s Reproduced Record, Vol.

IV, Document 4 at p. 25, quoting Petitioner’s appellate

brief at pp. 23-24.

The Superior Court then noted that Petitioner

provided a “cryptic reference to the ‘suspicious’ timeline of

the investigation of the white car, but fails to develop any

argument explaining how the assertions described above

were deliberate misstatements of a material fact or how

these statements prejudiced him.” (See Document #16,

Respondent’s Reproduced Record, Vol. IV., Document 4 at

p. 25). As a result, the Superior Court concluded that it

was unable to review this claim because the issue was not

adequately raised and developed and was, therefore,

waived by Petitioner.

Since the Superior Court did not reach the merits

of the issue regarding the investigation of the white car,

this Court must review this issue using an “independent

judgment” standard. Hameen v. State of Delaware, 212

F.3d 226, 248 (3d Cir. 2000) (“[U]nder the AEDPA the

limitation on the granting of an application for a writ of

habeas corpus is only ‘with respect to any claim that was

adjudicated on the merits in state court proceedings.’

Hence, we exercise pre-AEDPA independent judgment

el

To better comprehend Petitioner’s argument, it is

necessary to review the portion of the affidavit of prob-

able cause he is challenging. The investigating officer’s

narrative regarding the incident indicates that he inter-

viewed the victim’s neighbor at 3:35 a.m. on the night of

the incident, at which time the neighbor noted seeing a

single man leaving the scene in a “white mid-sized to

large car.” (See Petition, Exhibit A). However, the affi-

29a

davit of probable cause notes that five minutes earlier, at

approximately 3:30 a.m. on the night of the incident, Cor-

poral Dumbleton drove by the residence of Petitioner’s

brother and located a white 1987 Buick automobile regis-

tered to Kevin Thompson, which “match[ed]} the descrip-

tion of the white vehicle observed leaving the area of the

victims [sic] apartment at the time of this incident” and

“discovered that the engine of the vehicle was still

warm...” (See Petition, Exhibit B at § 8). Petitioner ar-

gues that, because the police were not given a description

of a “white car” being present at the scene of the incident

until 3:35 a.m., “it was merely impossible for the police to

be searching for a white mid-sized to large white vehicle

at 3:30 a.m...” (See attachment to Petition at p. 11, 13).

This inconsistency in the investigation time line is fur-

ther supported by the testimony that was elicited at trial

from two of the police officers who were involved in the

investigation. In particular, Corporal Dumbleton con-

firmed during his testimony that the search for the white

vehicle that was allegedly involved in the incident was

conducted before 3:35 a.m.:

A. The Meadville P.D. called and said

that they had — they called the

barracks and the barracks trans-

ferred the information that they

had located a vehicle that we were

looking for.

Q. What were you looking for?

>

A white vehicle possible a Buick.

Q. Okay. Did you go to a certain loca-

tion as a result of your conversa-

tion with the Meadville City Po-

lice?

A. Yes, we met with them approxi-

30a

mately a block away from where

the vehicle was located?

* * ‘*

Q. Did you notice -— did you do any-

thing — touch the car to determine

what it’s condition was?

A. Yes. As I approached the front

door, I had to go by the vehicle.

And as I approached the door, the

other Troopers and the Meadville

P.D. surrounded the house. As I

approached the door, | touched the

vehicle to see if the engine com-

partment was warm. It was warm,

not hot but it was warm.

What did that tell you?

That it was driven recently.

And what time was it, sir?

> OP

Approximately, 3:15, 3:30, some-

where in there.

Q. What time did you leave the area?

A. Approximately, 3:30.

See Document #14, Respondent’s Reproduced Record, Vol.

II, at pp. 184-187.

Conversely, Trooper Raymond Collins, who served

the search warrant that was obtained with the affidavit

of probable cause, testified on cross examination as fol-

lows:

Q. You would agree the information

that was acted upon regarding the

white car came from [the victim’s

3la

neighbor] ..., correct?

A. That’s correct.

Q. And he was interviewed at 3:35,

correct? —

A. Correct.

Q. Then the information that was

acted upon would have been acted

upon after 3:35?

A. Correct.

Q. Do you have an explanation as to

why literally every officer who tes-

tified here puts their activities be-

fore 3:30 regarding the white car?

A. No, I have no explanation.

See Document #14, Respondent’s Reproduced Record, Vol.

II, at p. 219.

Based on the foregoing, Petitioner’s argument re-

garding the discrepancy in the timing of the investigation

of the “white car” has some facial appeal; however, Peti-

tioner has failed to demonstrate how this apparent dis-

crepancy prejudiced him. Even if one removed the para-

graph regarding the investigation of the “white car” from

the affidavit of probable cause, there was still sufficient

probable cause established by the remainder of the affi-

davit to justify the issuance of a search warrant.

Moreover, Petitioner fails in his attempt to infer

from the timing discrepancy that Corporal Dumbleton

probably felt the “warm” hood of a white mid-sized vehi-

cle that belonged to Petitioner’s stepfather, Robert Har-

ris, who lived across the street from Petitioner’s brother.

(See attachment to Petition at p. 12, 4 15, 17). Not only

is this inference illogical, it is completely contrary to the

32a

evidence in this case. Robert Harris testified at the evi-

dentiary hearing regarding Petitioner’s PCRA petition

that he drove a white 1988 Oldsmobile Toronado. (See

Document #15, respondent’s Reproduced Record, Vol. III,

at p.50). Corporal Dumbleton testified at trial that the

white car he located and found to be “still warm to the

touch” was a Buick. (See Document #14, Respondent’s

Reproduced Record, Vol. II., at pp. 187-88). The license

plate of the Buick was found to be registered in the name

of Kevin Thompson. Corporal Dumbleton testified that

he checked the residence of Petitioner’s stepfather at ap-

proximately 3:30 and tried to “arise” him, but received no

response there. (See Document #14, Respondent’s Repro-

duced Record, Vol. IJ, at pp. 188-89). Based on this re-

cord, there is no support for Petitioner’s contention that

the affidavit of probable cause implicated the wrong vehi-

cle and was, thus, “untrue and misleading.” (See attach-

ment to Petition at p. 12, {| 23).

iv. Embellishment of White

Car’s Movements

Petitioner argues that the affidavit’s statement

that the victim’s neighbor saw a white car “flee the area”

was an embellishment of the witness’s actual statement

that “the car went to the top of the complex and I don’t

know which way it went.” (See attachment to Petition at

p. 12, |] 18-19). In discussing this argument, the Supe-

rior Court concluded that “[w]e cannot agree with [Peti-

tioner’s] assertion that the use of the word ‘flee’ substan-

tially changes the nature of [the witness’s] description of

[Petitioner’s] departure from the scene of the crime,....

[Petitioner] has failed to demonstrate the policeman’s use

of the word ‘flee’ was a deliberate attempt to misstate

Ithe witness’s] account of what he witnessed on the night

of the incident.” (See Document #16, Respondent’s Re-

produced Record, Vol. [V, Document 4 at p.26). This con-

33a

clusion is based upon a reasonable determination of the

facts in light of the evidence presented in the State court

proceeding, and Petitioner has failed to meet his burden

of rebutting this conclusion by clear and convincing evi-

dence. See Chadwick, 312 F.3d at 606-07.

After considering all of the foregoing diserepancies

alleged by Petitioner, the trial court found that “[e}ven if

we were to consider each one of them as true, we are

compelled to the finding that none of them, individually

or in the aggregate, constitute [sic] a misstatement of ma-

terial fact. That is, even considering the affidavit in

question absent the statements which the [Petitioner]

takes issue with, probable cause to issue the warrant

would still be found.” (See Document #14, Respondent’s

Reproduced Record, Vol. I, at p. 61). As a result, the trial

court ultimately concluded that since it found no mis-

statements in the affidavit of probable cause which were

either material or deliberate, there was no merit to Peti-

tioner’s contention that his trial counsel was ineffective

for failing to challenge the alleged misstatements. (See

Document #13, Respondent’s Reproduced Record, Vol. I,

at pp. 61-62). This decision was neither contrary to, nor

an unreasonable application of, clearly established Fed-

eral law, as determined by the Supreme Court in Strick-

land, so as to justify habeas relief on this claim.

e. Failure to Request Cautionary

Instruction Regarding In-

Court Identification

Petitioner argues that, since the Commonwealth’s

identification witness was registered legally blind, the

accuracy of his identification was suspect and, thus, Peti-

tioner’s trial counsel was ineffective for failing to request

an instruction advising the jury that the identification

34a

witness's testimony must be received with caution.‘ In

addressing this argument, the trial court determined that

such an instruction was unnecessary with regard to the

in-court identification of Petitioner:

[The witness’s] identification of the [Peti-

tioner] was positive and unqualified.

There have been no instances pointed to

by the [Petitioner] w{h]ere [the witness]

has offered anything less. The [Peti-

tioner] argues, however, that because [the

witness! originally observed the ([Peti-

tioner) approximately 15 feet away on the

evening in question and was not able to

positively identify him [at trial] until he

left the stand and approached [Peti-

tioner], that this is evidence of record that

[the witness] was not in a position to

clearly observe the [Petitioner]. We dis-

agree.

(The witness] testified that his eyes were

highly sensitive to the type of lights in the

courtroom. As such, it was necessary for

him to step down from the stand to posi-

tively identify the [Petitioner]. The light-

ing conditions in the courtroom were such

4 Petitioner bases this argument on the Pennsylvania Supe-

rior Court's decision in Commonwealth v. Kloiber, 378 Pa. 412,

106 A.2d 820 (1954), which heid that a jury must be charged

that an eyewitness’s identification should be viewed with cau-

tion where the eyewitness: (1) did not have an opportunity to

clearly view the defendant; (2) equivocated on the identification

of the defendant; or (3) had a problem making an identification

in the past. However, identification testimony need not be re-

ceived with caution where it is positive, unshaken, and not

weakened by a_ proper failure to identify. Kloiber, 378 Pa. at

424, 106 A.2d at 826.

35a

that [the witness] was required to ap-

proach the [Petitioner] in order to prop-

erly identify him that it must follow that

[the witness] was not in a position to

clearly identify the [Petitioner] on the

night in question or that his opportunity

for observation was not good, is an asser-

tion without merit.

The identification of the [Petitioner] by

[the witness] was never in doubt even fol-

lowing cross-examination. Any questions

pertaining to the reliability of [the wit-

ness’s} identification because of his vision

deficiency only affected the weight which

the jury may have been afforded his tes-

timony. Therefore, a Kloiber instruction

was inapplicable and would not have been

given even had one been requested.

Hence, the [Petitioner’s] claim fails.

See Document #13, Respondent’s Reproduced Record, Vol.

I, at pp. 67-68.

On appeal, the Superior Court agreed with the

trial court’s conclusion in this regard, finding that “[Peti-

tioner’s] trial counsel] cannot be found ineffective for fail-

ing to raise a meritless issue.” (See Respondent’s Repro-

duced Record, Vol. IV, Document 4 at p. 28). This deci-

sion was neither contrary to, nor an unreasonable applli-

cation of, clearly established Federal law, as determined

by the Supreme Court in Strickland, so as to justify ha-

beas relief on this claim.

2. Sufficiency of Evidence

Petitioner argues that the Commonwealth pre-

sented insufficient evidence to support his conviction of

Attempted Burglary, claiming that he “was never seen

36a

committing any crime, nor was he ever seen possessing a

handgun,” and that “[n]o testimony or evidence was pre-

sented to establish an intent to commit a theft, or any

other crime once inside the apartment.” (See attachment

to Petition at p.1,%4 1, 5). As a result, Petitioner claims

his conviction violated his due process rights.

Where a petitioner challenges his incarceration on

the ground that the evidence was insufficient to support

his conviction, “the relevant question is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Under this standard, “a federal habeas corpus court faced

with a record of historical facts that supports conflicting

inferences must presume — even if it does not affirma-

tively appear in the record — that the trier of fact re-

solved any such conflicts in favor of the prosecution, and

must defer to tnat resolution.” Jackson, 443 U.S. at 326.

Accord Moore v. Deputy Commissioner(s) of SCI-

Huntington, 946 F.2d 236, 243 (3d Cir. 1991), cert. de-

nied, 503 U.S. 949 (1992). A federal court must apply

this standard “with explicit reference to the substantive

elements of the criminal offense as defined by state law.”

Orban, 123 F.3d at 731 (quoting Jackson, 443 U.S. at 324

n. 16). The finder of fact, however, weighs the evidence

and the federal courts must defer to its resolution of con-

flicts in the evidence. Jackson, 443 U.S. at 326.

The test for sufficiency of evidence is the same un-

der both Pennsylvania and federal law. See Evans v.

Court of Common Pleas, Delaware County, 959 F.2d 1227,

1233 (3d Cir. 1992), cert. denied, 506 U.S. 1089 (1993);

Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147

(1990) (an appellate court must determine whether the

evidence, and all reasonable inferences deducible there-

37a

from, viewed in the light most favorable to the Common-

wealth as verdict winner, are sufficient to establish all of

the elements of the offenses charged).

Applying essentially the same standard, the Supe-

rior Court reviewed the evidence presented at trial in the

light most favorable to the prosecution and concluded

that there was “sufficient evidence to enable the fact-

finder to find [Petitioner] guilty beyond a reasonable

doubt of Attempt to Commit Burglary. The evidence was

sufficient to demonstrate that [Petitioner] took a substan-

tial step in gaining entry to an occupied structure and

had the requisite intent to commit a crime, such as as-

sault, particularly in light of the surrounding circum-

stances of prior continued harassment.”> (See Document

#16, Respondent’s Reproduced Record, Vol. IV, Document

4 at p. 8-9). Since this decision was neither contrary to,

nor an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court in

Jackson, there is no basis upon which habeas relief may

be granted on this claim.

3. Trial Court’s Denial of Request for

Mistrial

Petitioner claims that the trial court erred in de-

nying his trial counsel’s request for a mistrial after a

Commonwealth witness testified that Petitioner was pre-

viously “in West Virginia on the run.” (See attachment to

Petition at p. 16, § 1). Petitioner claims that this testi-

mony was unduly prejudicial because it implied to the

5 The Superior Court set forth its standard of review as fol-

lows: “[t]he standard we apply in reviewing the sufficiency of

evidence is whether viewing all the evidence admitted at trial

in the light most favorable to the verdict winner, there is suffi-

cient evidence to enable the factfinder to find every element of

the crime beyond a reasonable doubt.” (See Document #16, Re-

spondent’s Reproduced Record, Vol. IV, Document 4 at p. 5).

38a

jury that Petitioner was involved in prior criminal activ-

ity. (See attachment to Petition at p. 16, 2). The testi-

mony at issue was elicited from the victim’s boyfriend on

cross-examination regarding the numerous harassing and

threatening phone calls he claimed to have received from

Petitioner. In particular, the witness testified as follows:

Q. Well, what I asked, how long prior

to the incident did those —

A. Every time he called.

Q. He said the same thing every time

he called?

A. Not every time but every day, I got

the same threat, basically because

Q. For how long?

As soon as he knew I was dating

her. I don’t really know.

>

By phone?

Two or three —

Every two or three days?

When he was in Meadville. When

he was in West Virginia on the

run, | was...

> OP

See Document #14, Respondent’s Reproduced Record, Voi.

II, at p. 67.

Immediately after the above testimony was of-

fered, Petitioner’s trial counsel approached the bench at

sidebar and requested a mistrial. The request was de-

nied; however, the trial court did offer to give the jury a

cautionary instruction regarding the comment at issue,

which Petitioner’s trial counsel declined. In evaluating

39a

whether a mistrial should have been granted as a result

of the jury’s exposure to the above testimony, the trial

court found as follows:

In the matter at hand, the witness’ an-

swer was in response to trial counsel’s

question and was a mere passing refer-

ence to what might conceivably have been

construed to implicate prior criminal con-

duct. It was not offered with any appar-

ent motive on the part of the witness to

prejudice the [Petitioner] and was a fair

answer to trial counsel’s question. The

prosecution did not take advantage of the

witness’ statement. With only a passing

reference to the [Petitioner] having been

“on the run” and without anything more,

the [Petitioner] suffered no prejudice and

the denial of the motion for a mistrial was

proper.

See Document #13, Respondent’s Reproduced Record, Vol.

I, at pp. 68-69.

On appeal the Superior Court agreed with the

trial court’s finding in this regard and concluded that the

witness's “challenged testimony, when viewed in context,

was merely a passing reference unprovoked by the Com-

monwealth, and did not work to prejudice [Petitioner].”

(See Document #16, Respondent’s Reproduced Record,

Vol. IV, Document 4 at p. 32).

The United States Supreme Court has held that “a

trial judge properly exercises his discretion to declare a

mistrial if an impartial verdict cannot be reached, or if a

verdict of conviction could be reached but would have to

be reversed on appeal due to an obvious procedural error

in the trial.” Illinois v. Somerville, 410 U.S. 458, 464

40a

(1973). Conversely, therefore, a trial judge properly exer-

cises his discretion in denying a mistrial if he determines

that an impartial verdict can be reached and would not

have to be reversed on appeal due to an obvious proce-

dural error at trial. Here, the trial court determined that

the witness’s statement at issue was merely a passing

reference that was not prejudicial to Petitioner and, thus,

a mistrial was not warranted. This finding is neither

contrary to, or an unreasonable application of, clearly es-

tablished Federal law, so as to justify habeas relief on

this claim.

4, Trial Court’s Allowance of a Second

Chance to Identify Petitioner

Petitioner claims that the trial court erred in al-

lowing the Commonwealth’s identification witness a sec-

ond chance to identify Petitioner at trial, and in “inter-

ject{ing] its opinions as to the facts of the case.” (See at-

tachment to Petition at p. 17). In particular, Petitioner

argues that he was prejudiced when the trial court al-

lowed the identification witness to leave the witness

stand and approach Petitioner, after he had stated from

the witness stand that he was not able to see the person

in the courtroom who he identified on the night of the in-

cident. (See attachment to Petition at pp. 17-18, 4 1-2).

Petitioner contends that “this second chance at an in-

court identification was unduly suggestive because it was

a one-on-one confrontation with the person sitting next to

defense counsel” and “conducive to irreparable mistaken

identification.” (See attachment to Petition at p. 18, 4] 5,

7).

Petitioner contends further that the trial judge’s

remarks in the presence of the jury as to why he permit-

ted the witness to leave the witness stand to make his in-

court identification effectively “usurped the power and

role of the jury as factfinder in the case.” (See attachment

4la

to Petition at p. 20, § 25). Specifically, Petitioner notes

that the trial judge stated that “[i]t was obvious from the

witness stand that [the witness] couldn’t see anybody out

in the courtroom,” and went on to state “I watched him

look around and he just couldn’t see anybody, ... it was

obvious to me he was struggling, and therefore, we’re giv-

ing him some latitude to make sure that if he can identify

the person who was there, he has an opportunity to do

that in light of his sight problems.” (See attachment to

Petition at p. 20, 4 24).

Habeas is only an appropriate remedy if the ad-

mission of evidence at a state court trial rises to the level

of a constitutional violation. Estelle v. McGuire, 502 U.S.

62 (1991). Evidentiary rulings “are not considered to be

of constitutional proportion, cognizable in federal habeas

corpus proceedings, unless the error deprives a defendant

of fundamental fairness in his criminal trial.” Bisaccia v.

Attorney General, 623 F.2d 307, 312 (3d Cir. 1980). The

Supreme Court has acknowledged its “traditional reluc-

tance to impose constitutional constraints on ordinary

evidentiary rulings by state trial courts.” Crane v. Ken-

tucky, 476 U.S. 683, 689 (1986); see also Lesko v. Owens,

881 F.2d 44, 51-52 (3d Cir. 1989). Therefore, unless the

evidence in question played a critical factor in the pro-

ceeding such that the petitioner was denied fundamental

fairness at his trial, evidentiary rulings are not cogniza-

ble on habeas corpus. Nettles v. Wainwright, 677 F.2d

410, 414-15 (5% Cir. 1982); Brown v. Tard, 552 F.Supp.

1341 (D.N.J. 1982). Consequently, the appropriate in-

quiry is whether the claimed error of law is a fundamen-

tal defect which inherently results in a complete miscar-

riage of justice or in an omission inconsistent with the

rudimentary demands of fair procedure. United States v.

DeLuca, 889 F.2d 503, 506 (3d Cir. 1990).

“While identification testimony is significant evi-

42a

dence, such testimony is still only evidence, and, unlike

the presence of counsel, is not a factor that goes to the

very heart [of] the ‘integrity’ of the adversary process.

Counsel can both cross-examine the identification wit-

nesses and argue in summation as to factors causing

doubts as to the accuracy of the identification including

reference to both any suggestibility in the identification

procedure and any countervailing testimony such as al-

ibi.“ Manson v. Brathwaite, 432 U.S. 98, 113 n.14 (1977)

(quoting Clemons v. United States, 408 F.2d 1230, 1251

(1968), cert. denied, 394 U.S. 964 (1969).

Here, the trial court found that the identification

of the Petitioner “had a basis independent of his in-court

identification. As such, no danger of misidentification was

present by virtue of the [Petitioner’s] seating position at

trial. ... [The identification witness] did not state that he

could not identify the [Petitioner], simply that he could

not see him to identify him from the witness stand be-

cause of the lights in the courtroom and his sensitivity to

these lights. He was permitted to put himself in a posi-

tion whereby he could see the [Petitioner] at which point

he then positively identified the [Petitioner]. There was

no prejudice to the [Petitioner] from this identification

and, therefore, no error.” (See Document #13, Respon-

dent’s Reproduced Record, Vol. I, at p. 69).

Petitioner has failed to demonstrate that this ii.-

court identification was a “fundamental defect which in-

herently resulted in a complete miscarriage of justice or

in an omission inconsistent with the rudimentary de-

mands of fair procedure.” Thus, Petitioner’s claim in this

regard is not cognizable in habeas corpus.

With regard to the trial judge’s remarks regarding

the identification witness’s vision impairment, the trial

court found as follows:

43a

The matter and the extent of the vision

deficiency of [the identification witness]

was an issue which adversely affected this

witness and the reliability that the jury

would credit his identification of the [Peti-

tioner]. As such, if anything, the state-

ments which explained them would have

advanced the [Petitioner’s] case. In fact,

the [Petitioner] has consistently and re-

peatedly raised issue after issue regarding

the vision deficiency of [the identification

witness]. We cannot conceive how he can

now complain that he was prejudiced by

the statements complained of. This asser-

tion of error has a hollow ring about it.

The [Petitioner] has failed to state how he

could possibly have been prejudiced by

these statements and we can conceive no

possible prejudice. This claim is merit-

less.

See Document #13, Respondent’s Reproduced Record, Vol.

I, at p. 70.

On appeal, the Superior Court agreed that “[t]he

trial judge was simply responding to defense counsel’s

objection and providing justification for overruling said

objection. Further, the trial judge’s remarks were not

prejudicial to [Petitioner’s] case. The trial judge’s com-

ments actually bolstered [{Petitioner’s] defense theory

that the identification witness could not see very well and

consequently weakened the value of [his] identification

testimony and, correspondingly, the Commonwealth’s

case.” (See Document #16, Respondent’s Reproduced Re-

cord, Vol. IV, Document 4 at p. 35).

This Court agrees with the State courts’ analysis

regarding the trial judge’s comments. As with the in-

44a

court identification, Petitioner has failed to demonstrate

that the trial judge’s remarks made in connection with

the identification “inherently resulted in a complete mis-

carriage of justice or in an omission inconsistent with the

rudimentary demands of fair procedure.” Thus, Peti-

tioner’s claim in the regard is not cognizable in habeas

corpus.

5. Trial Court’s Denial of Pretrial Motion

Challenging Sufficiency of Affidavit of

Probable Cause

Petitioner claims that the trial court erred in de-

nying his pretrial motion to suppress evidence based on

the alleged insufficiency of the affidavit of probable cause.

In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme

Court held that “where the State has provided an oppor-

tunity for full and fair litigation of a Fourth Amendment

claim, a state prisoner may not be granted federal habeas

corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his

trial.” Thus, even if a state court resolves a Fourth

Amendment issue summarily or erroneously, Stone bars

federal courts from hearing such claims on habeas re-

view. Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir.

2002). Federal courts will only address Fourth Amend-

ment claims on habeas review where “a structural defect

in the system prevented [the] claim from being heard.”

Id.

Here, there was no structural defect that pre-

vented Petitioner’s Fourth Amendment claim from being

heard in the State courts. Petitioner was provided a full

and fair opportunity to litigate his challenge to the affi-

davit of probable cause during pretrial suppression pro-

ceedings before the trial court. The Superior Court also

fully considered Petitioner’s Fourth Amendment claim on

direct appeal, concluding that “when the four corners of

45a

the affidavit of probable cause are reviewed in light of the

totality of the circumstances, a substantial basis existed

for the search of the residence and that there was a rea-

sonable probability that evidence of the crime sought in

the affidavit would be found there.” (See Document #16,

Respondent’s Reproduced Record, Vol. [V, Document 4 at

p. 38).

Because the State courts provided Petitioner with

a full and fair opportunity to litigate his Fourth Amend-

ment claim, habeas review of this claim is barred by the

Supreme Court’s decision in Stone.

F. Certificate of Appealability

“A certificate of appealability may issue . . . only if

the applicant has made a substantial showing of the de-

nial of a constitutional right.” Jd. (28 U.S.C. § 2253(c).

Petitioner has not made a showing that he has been de-

nied any of his constitutional rights. Accordingly, a cer-

tificate of appealability should be denied.

Ill. CONCLUSION

For the foregoing reasons, it is respectfully rec-

ommended that the instant petition for writ of habeas

corpus be dismissed and that a certificate of appealability

be denied.

In accordance with the Magistrates Act, 28 U.S.C.

§ 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local

Rules for Magistrates, the parties are allowed ten (10)

days from the date of service to file written objections to

this Report and Recommendation. Any party opposing

the objections shall have seven (7) days from the date of

service of objections to respond thereto. Failure to file

timely objections may constitute a waiver of any appel-

late rights.

46a

SUSAN PARADISE BAXTER

UNITED STATES

MAGISTRATE JUDGE

Dated: June 3, 2005

47a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

C.A. No. 04-164-Erie

TYSON A. DITCH,

Petitioner,

JAMES L. GRACE,

Respondent.

MEMORANDUM AND ORDER

This petition for writ of habeas corpus was re-

ceived by the Clerk of Court on June 14, 2004, and was

referred to United States Magistrate Judge Susan Para-

dise Baxter for report and recommendation in accordance

with the Magistrates Act, 29 U.S.C. § 636(b)(1), and

Rules 72.1.3 and 72.1.4 of the Local Rules for Magis-

trates.

The magistrate judge’s report and recommenda-

48a

tion, filed on June 3, 2005, recommended that the petition

for writ of habeas corpus be dismissed and that a certifi-

cate of appealability be denied. The parties were allowed

ten (10) days from the date of service to file objections.

Service was made on Petitioner by certified mail at SCI

Huntingdon, where he is incarcerated, and on Respon-

dent. Objections were filed by Petitioner on June 12,

2005. After de novo review of the petition and documents

in the case, together with the report and recommendation

and objections thereto, the following order is entered:

AND NOW, this 28" Day of June 2005;

IT IS HEREBY ORDERED that the Petition for

Writ of Habeas Corpus is DISMISSED and that a certifi-

cate of appealability is DENIED.

The report and recommendation of Magistrate

Judge Baxter, dated June 3, 2005, is adopted as the opin-

ion of the court.

SEAN J. McLAUGHLIN

United States District Judge

49a

APPENDIX C

UNITED STATES COURT OF

APPEALS FOR THE THIRD

CIRCUIT

No. 05-3614

TYSON ALAN DITCH,

Appellant,

Vv.

JAMES L. GRACE.

March 1, 2007, Decided

October 25, 2006, Argued

OPINION

ROBERT E. COWEN, Sr., Appeals Judge

Tyson A. Ditch appeals from an order of the United

States District Court for the Western District of Pennsyl-

vania dismissing his petition for writ of habeas corpus

filed under 28 U.S.C. § 2254. For the reasons stated be-

low, we will affirm the order of the District Court.

50a

1.

At approximately 3:00 a.m. on February 18, 1998, ten

gunshots were fired into the front door of the apartment

of Dasha Yenney, Ditch’s former girlfriend. The police ar-

rived, and, upon investigation, found bullet fragments

and a casing from a nine millimeter bullet outside of the

apartment. Yenney informed the police that she had re-

cently received harassing telephone calls from Ditch, and

that Ditch had been arrested in the past for harassing

and physically abusing her. While the police were inves-

tigating the crime scene, Ditch telephoned Yenney. When

the police attempted to speak to him, he terminated the

call. The police traced the call to Ditch’s brother’s resi-

dence and obtained warrants to search the residence.

Upon execution of the warrants, the police found Ditch

asleep in the attic of the residence, and, approximately

fifteen feet away from him, a nine millimeter Ruger pis-

tol. The police arrested Ditch and took him into custody.

Later, based upon a ballistics analysis, the Pennsylvania

State Police laboratory determined that the bullet frag-

ments and casing retrieved from the crime scene were

fired from the same pistol seized from the attic.

On June 16, 1998, Ditch appeared without counsel at

a preliminary hearing. At the hearing, Ditch asked the

presiding judge for a continuance in order to seek counsel.

He related to the judge that he had made several tele-

phone calls to an attorney, but had not yet received an

answer to his calls. The judge denied the request, reason-

ing only that twenty days had elapsed since the arraign-

ment. After presenting Ditch with a Waiver of Counsel

form, which Ditch refused to sign, the judge proceeded

with the hearing. At the uncounseled hearing, Ronald

5la

Fry, a witness for the Commonwealth, identified Ditch as

the individual he saw leaving the apartment building in

the early morning hours of the day of the incident.

At trial Fry testified that he made a positive identifi-

cation of Ditch at the preliminary hearing. He also made

a positive identification of Ditch at trial, but only after he

was permitted to leave the witness stand and approach

the defense table. He testified that he could not identify

Ditch from the witness stand because his eyes are light-

sensitive. Fry further admitted that he was legally blind

and was not wearing glasses at the time of the incident.

He testified, however, that he did not have any difficulty

seeing Ditch through his apartment window at the time

of the incident, even though his window was located ap-

proximately ten or fifteen feet away from Yenney’s

apartment door. He testified that the area of the apart-

ment building in which he saw Ditch was well-lit.

Following trial, Ditch was convicted by a jury of

criminal attempt to commit burglary, reckless endanger-

ment of another person, and unlawful possession of a

firearm. He was also convicted of the summary offense of

criminal mischief. Ditch was sentenced to an aggregate

term of imprisonment of seven-and-a-half to fifteen years.

On May 3, 2001, the Superior Court of Pennsylvania af-

firmed Ditch’s convictions, and on December 30, 2003, the

Pennsylvania Supreme Court denied Ditch’s petition for

allowance of appeal, which was filed nunc pro tunc.

On June 21, 2004, Ditch filed a petition for writ of ha-

beas corpus with the District Court under § 2254, chal-

lenging several aspects of his convictions. The District

Court denied the petition and found no basis for issuance

of a Certificate of Appealability (“COA”).

On December 20, 2005, this Court granted Ditch’s re-

quest for a COA with respect to two issues: (1) whether

52a

the District Court erred in denying his petition for writ of

habeas corpus as to Ditch’s claim that he was denied his

constitutional right to counsel at his preliminary hearing;

and (2) whether the District Court erred in denying his

petition for writ of habeas corpus as to Ditch’s claim that

he was deprived of effective assistance of counsel because

trial counsel failed to file a motion to suppress the identi-

fication which occurred at the uncounseled preliminary

hearing. We have jurisdiction to review Ditch’s claims

under 28 U.S.C. §§ 1291 and 2253.

II,

A.

Ditch’s first argument is that the District Court

should have granted his habeas petition because he was

denied his right to counsel at his preliminary hearing in

violation of the Sixth Amendment of the Constitution. For

the reasons stated below, we conclude that while Ditch

was denied counsel at his preliminary hearing, he is not

entitled to habeas relief because the constitutional error

was harmless.

1.

We begin our analysis by considering Ditch’s claim

that he had a right to, but was denied, counsel at his pre-

liminary hearing. In Coleman v. Alabama, 399 U.S. 1, 9-

10 (1970), the Supreme Court held that a defendant was

entitled to representation of counsel at his Alabama pre-

liminary hearing. The Court reasoned that under Ala-

bama law a preliminary hearing is a “critical stage” of the

criminal prosecution. Jd. The Court noted that at an Ala-

bama preliminary hearing, the accused is discharged or

6 We conclude that the certified claims were fairly pre-

sented to the state court on direct review for purposes of the

exhaustion requirement under 28 U.S.C. § 2254(b). See

McCandless v. Vaughn, 172 F.3d 255, 260-61 (3d Cir. 1999).

53a

held to answer, as the facts may warrant, and that the

hearing seeks to determine whether there is probable

cause to believe that a crime has been committed and

serves to protect the accused from groundless prosecu-

tions, among other things. Jd. at 8. The Court then de-

lineated the advantages of a lawyer’s assistance at such a

hearing:

First, the lawyer’s skilled examination and cross-

examination of witnesses may expose fatal weak-

nesses in the State’s case that may lead the magis-

trate to refuse to bind the accused over. Second, in

any event, the skilled interrogation of witnesses by

an experienced lawyer can fashion a vital im-

peachment tool for use in cross-examination of the

State’s witnesses at the trial, or preserve testi-

mony favorable to the accused of a witness who

does not appear at the trial. Third, trained counsel

can more effectively discover the case the State

has against his client and make possible the

preparation of a proper defense to meet that case

at the trial. Fourth, counsel can also be influential

at the preliminary hearing in making effective ar-

guments for the accused on such matters as the

necessity for an early psychiatric examination or

bail.

Id. at 9. In light of the defendant’s inability to realize

these advantages on his own, the Court concluded that

the defendant was as much entitled to the aid of counsel

at the Alabama preliminary hearing as at the trial itself.

Id.

Applying the reasoning used in Coleman, we conclude

that a Pennsylvania preliminary hearing is also a critical

stage in a criminal prosecution. At a Pennsylvania pre-

liminary hearing, the Commonwealth may assume charge

of the prosecution and recommend to the issuing author-

54a

ity that the defendant be discharged or bound over to the

court. See PA. R. CRIM. P. 542(A). At the hearing, “the

Commonwealth bears the burden of establishing at least

a prima facie case that a crime has been committed and

that the accused is probably the one who committed it.”

Commonwealth v. Oliver, 869 A.2d 1167, 1171 (Pa.

Commw. Ct. 2005) (citations omitted). Moreover, as in

Alabama, a principal function of the hearing in Pennsy]l-

vania is to protect the accused’s right against an unlawful

arrest and detention. /d.

Because the Pennsylvania preliminary hearing is a

critical stage of a criminal prosecution, we likewise con-

clude that Ditch was entitled to the assistance of effective

counsel at that hearing. See Coleman, 399 U.S. at 9-10;

Commonwealth v. Carver, 436 A.2d 1209, 1211 (Pa. Super

Ct. 1981) (“It is axiomatic that the preliminary hearing is

a ‘critical stage’ of a criminal proceeding, at which [the

accused] is entitled to the assistance of effective coun-

sel.”); Commonwealth v. Rines, 372 A.2d 901, 902 (Pa.

Super. Ct. 1977) (“It is, of course, well settled that a de-

fendant is entitled to the effective assistance of counsel at

a preliminary hearing.”); see also Commonwealth v. Saw-

yer, 357 A.2d 587, 589 (Pa. Super Ct. 1976); Common-

wealth v. Redshaw, 323 A.2d 92, 93 (Pa. Super. Ct. 1974).

Based upon the record before us, it is clear that Ditch

was denied his right to counsel] at the preliminary hear-

ing. At the beginning of the hearing, Ditch informed the

state court judge that he wished to secure representation

and requested a continuance to do so, but the judge de-

nied the request, reasoning only that twenty days had

elapsed since the arraignment. There is nothing in the

record to suggest that Ditch waived or forfeited his right

to counsel. Thus, we conclude that Ditch was denied his

right to counsel at his preliminary hearing in violation of

the Sixth Amendment.

55a

2.

Having concluded that Ditch was denied his right to

counsel, there remains the question of relief. Ditch argues

that the denial of counsel warrants automatic vacatur of

his conviction. In support, he argues that a preliminary

hearing is a critical stage of the prosecution and that at

his preliminary hearing a witness made a positive identi-

fication of him which was later used against him at trial.

For the reasons given below, we conclude that the test to

be applied in this case is whether the denial of counsel at

the preliminary hearing was harmless error.

A denial of counsel at a preliminary hearing does not

automatically entitle an accused to vacatur and a new

trial. See Coleman, 399 U.S. at 11. In Coleman, the Su-

preme Court found that the defendants were denied their

right to counsel at their preliminary hearing, but re-

manded for a determination of “whether the denial of

counsel at the preliminary hearing was harmless error.”

Id. Indeed, Coleman stands for the proposition that even

though a preliminary hearing may be a critical stage in

the criminal process, a denial of counsel at the prelimi-

nary hearing does not automatically warrant vacatur.

Ditch’s other argument in support of vacatur is more

persuasive, albeit ultimately unavailing. Ditch under-

scores that a witness identification made at the uncoun-

seled preliminary hearing was later used against him at

trial. He claims that the lack of counsel under these cir-

cumstances infected the entire proceeding and warrants

vacatur. See Satterwhite v. Texas, 486 U.S. 249, 256

(1988) (stating that only those “Sixth Amendment viola-

tions that pervade the entire proceeding” can never be

considered harmless” (emphasis addea)).

Notably, Coleman does not address the appropriate

relief in a case involving a denial of counsel at a prelimi-

56a

nary hearing where evidence obtained from the hearing is

later used against the defendant at trial. In Coleman, the

state trial court prohibited the use at trial of any of the

evidence gathered at the uncounseled pretrial proceeding.

Indeed, in prescribing a harmless error analysis, the

Coleman Court specifically noted that the trial court had

scrupulously observed that prohibition. 399 U.S. at 10

(citing for comparison the case of White v. Maryland, 373

U.S. 59 (1963)). Thus, while as a general proposition

Coleman provides support for application of a harmless

error standard in cases involving the denial of counsel at

preliminary hearings, we cannot rest our conclusion

solely on that case.

Insofar as evidence obtained from the uncounseled

preliminary hearing was later used against Ditch at trial,

this case resembles White, supra. In White, the defen-

dant’s admission of guilt entered at a preliminary hearing

without counsel was later used against the defendant at

trial. 373 U.S. at 59-60. In White, unlike the case in

Coleman, the Supreme Court found structural error and

vacated the defendant’s criminal conviction without a

showing of prejudice. Jd. at 60. However, as with Cole-

man, this case is factually distinguishable from White, in

that the tainted evidence here was a witness’s positive

identification of the accused, not an irreversible admis-

sion of guilt. Thus, the question of relief presented by the

facts of this case is not squarely addressed by either

Coleman or White.

Although neither Coleman nor White is apposite, we

find solace in another line of Supreme Court case law

which clearly prescribes a harmless error standard in

cases involving the admission of evidence at trial of un-

counseled pretrial identifications. See Gilbert v. Califor-

nia, 388 U.S. 263, 274 (1967) (prescribing a harmless er-

ror standard to the admission at trial of testimony of an

57a

uncounseled pretrial identification); Moore v. Illinois, 434

U.S. 220, 232 (1977) (“In view of the violation of peti-

tioner’s Sixth and Fourteenth Amendment right to coun-

sel at the pretrial corporeal identification, and of the

prosecution’s exploitation at trial of evidence derived di-

rectly from that violation, we reverse the judgment of the

Court of Appeals and remand for a determination of

whether the failure to exclude that evidence was harm-

less constitutional error... .”). In both Gilbert and Moore,

the Supreme Court opined that the ultimate admission of

evidence of an identification made at a pretrial proceed-

ing without counsel is subject to a harmless error stan-

dard.

Since the ultimate admission of evidence of an un-

counseled identification is subject to a harmless error

standard, we conclude by extension of Gilbert and Moore,

that the underlying denial of counsel is also subject to a

harmless error analysis. Unlike the irreversible admis-

sion of guilt in White, the admission of an uncounseled

identification does not necessarily “pervade the entire

proceeding,” Satterwhite, 486 U.S. at 256, nor is it “neces-

sarily unquantifiable and indeterminate,” Sullivan uv.

Louisiana, 508 U.S. 275, 281-82 (1993). In sum, based

upon the confluence of Coleman, Gilbert and Moore, we

hold that the denial of counsel] at Ditch’s preliminary

hearing is subject to a harmless error standard, even

though evidence of the identification made at the hearing

was later used against him at trial.

3.

Next, we address Ditch’s related contention that even

if no structural error occurred, he is entitled to a pre-

sumption of prejudice under United States v. Cronic, 466

U.S. 648 (1984). In Cronic, the Supreme Court “identified

three situations implicating the right to counsel that in-

volved circumstances ‘so likely to prejudice the accused

“3

58a

that the cost of litigating their effect in a particular case

is unjustified.” Bell v. Cone, 535 U.S. 685, 695 (2002)

(quoting Cronic, 466 U.S. at 658-59). The Cronic Court

said that the first and “[m]ost obvious” situation in which

a presumption of prejudice applies is a “complete denial

of counsel,” 466 U.S. at 659. The Court explained that a

trial would be presumptively unfair where the accused is

denied the presence of counsel at “a critical stage.” Jd.

Ditch argues that because he was denied counsel at a

“critical stage” of litigation, he is entitled to an automatic

presumption of prejudice under Cronic.

Ditch’s argument has some appeal. Under an expan-

sive reading of Cronic, a denial of counsel at any critical

stage, including a preliminary hearing, would warrant a

presumption of prejudice. However, we conclude that

Cronic should be read in a more limited fashion. We agree

with the Court of Appeals for the Fourth Circuit in

United States v. Owen, 407 F.3d 222 (4th Cir. 2005),

which case is discussed below, that Cronic prescribes a

presumption of prejudice only with regard to those criti-

cal stages of litigation where a denial of counsel would

necessarily undermine the reliability of the entire crimi-

nal proceeding.

In Owen, the defendant claimed that he was denied

his right to counsel at his criminal arraignment and that

he was entitled to a presumption of prejudice under

Cronic. Id. at 225, 228. The Owen court disagreed with

the defendant’s claim that he was denied his right to

counsel, but indicated that even if he had been denied his

right to counsel, he was not entitled to a presumption of

prejudice under Cronic and the error was harmless. Jd. at

225-229. The court opined that Cronic relies on a narrow

usage of the phrase “cr itical stage” to mean a proceeding

at which a denial of counsel would necessarily undermine

the reliability of the entire criminal proceeding. Jd. at

59a

228. The Owen court observed that, in other cases such as

Coleman, the Supreme Court has used the phrase “criti-

cal stage” in a broader sense, to refer to all proceedings at

which the Sixth Amendment right to counsel attaches,

including those at which the denial of such is subject to

harmless error analysis. Id. Thus, while Owen’s arraign-

ment was a “critical stage” of litigation at which the right

of counsel attaches under Coleman, an uncounseled ar-

raignment would not necessarily undermine the entire

criminal proceeding requiring a presumption of prejudice

under Cronic. Id. at 228-29. Accordingly, citing to Cole-

man, the Owen court applied a harmless error analysis.

Id.

Like our sister court in Owen, we read Cronic in a

limited fashion. A denial of counsel at any critical stage

at which the right to counsel attaches does not require a

presumption of prejudice. Rather, a presumption of

prejudice applies only in cases where the denial of coun-

sel would necessarily undermine the reliability of the en-

tire criminal proceeding. See also Hammonds uv.

Newsome, 816 F.2d 611, 613 (11th Cir. 1987) (interpret-

ing Cronic in a limited fashion); Takacs v. Engle, 768 F.2d

122, 124 (6th Cir. 1985) (“Coleman’s harmless error

analysis remains good law.”). Because we cannot conclude

that the denial of counsel at the preliminary hearing nec-

essarily undermined the entire criminal proceeding, we

wil] apply a harmless error analysis in this case.

4.

We now turn to the salient question of whether the

denial of Ditch’s right to counsel at his preliminary hear-

ing was harmless error. To determine whether constitu-

tional error in a habeas case was harmless, we must de-

cide whether the error “had substantial and injurious ef-

fect or influence in determining the jury’s verdict.” Brecht

v. Abrahamson, 507 U.S. 619, 623 (1993); see also Hassine

60a

v. Zimmerman, 160 F.3d 941, 953 (3d Cir. 1998) (holding

that “a federal habeas court performing a harmless error

inquiry on collateral review must employ the standard for

harmless error articulated in Brecht, even if the state

courts have never reviewed the error on direct appeal.”).

In making the harmless error determination, “the cru-

cial inquiry is the impact of the error on the minds of the

jurors in the total setting.” Hassine, 160 F.3d at 955 (cita-

tions and internal quotation marks omitted). “While the

nature of the evidence against [Ditch] is important, we

must also examine the phases of the trial affected by the

error, and determine whether the error had a substantial

influence on the verdict despite sufficient evidence to

support the result apart from the error.” Jd. “In doing so,

we must of necessity weigh the impact of evidence on the

jury and cannot help but make a judgment as to how the

jury would reasonably perceive [Ditch’s] version of the

events with and without the [denial of counsel] violation.”

Id.

The record before us indicates that the evidence of

guilt at trial was substantial. The Commonwealth pre-

sented unchallenged expert ballistics testimony. The bal-

listics expert testified that bullet fragments and a shell

casing found at the crime scene matched the nine milli-

meter Ruger hand gun which the police found later that

same morning within fifteen feet of Ditch. As even Ditch

conceded in one of his briefs filed in state court, “[t]here is

no question that the most ‘damming’ evidence received by

the jury at trial was the ballistics evidence linking the

crime scene evidence to a firearm discovered at the home

of Mr. Ditch’s brother, where, apparently, Mr. Ditch

the[n] resid[ed].” (Memorandum in Support of Defen-

dant’s Motion for Post Conviction Collateral Relief at 8.)

In addition to the unchallenged ballistics evidence,

the Commonwealth presented evidence linking Ditch to

6la

Dasha Yenney in the evening hours before the crime. As

noted in Section I above, Yenney, a formal girlfriend of

Ditch, lived in the apartment into whose door the gun-

shots were fired. The Commonwealth presented evidence

that Yenney had received harassing telephone calls from

Ditch in the evening of February 17, 1998, and that Ditch

had been arrested in the past for harassing and physi-

cally abusing her. Thus, the weight of the evidence

against Ditch at trial was substantial.

Even if the evidence against Ditch was substantial,

the conviction must be vacated and a new trial ordered if

the denial of counsel had a substantial influence on the

verdict despite the substantial evidence. Here, the phase

of trial most directly impacted by the denial of counsel

was Fry’s testimony. Fry testified that he had identified

Ditch at the preliminary hearing and again identified him

at trial, and he did give some details about the night of

the incident, including a general description of the cloth-

ing that the individual was wearing.

However, Fry’s identification testimony was not a

particularly strong part of the Commonwealth’s case, for

at least two reasons. Virst, Fry admitted on the stand

that he was legally blind and was not wearing glasses at

the time of the incident. Second, Fry admitted at trial

that he could not see Ditch from the witness stand. Fry

was not able to identify Ditch until the judge permitted

him to leave the witness stand and approach the defense

table. Even the judge noted for the record that “[i]t was

obvious from the witness stand that he couldn’t see any-

body out in the courtroom.” (App. at 57.) Thus, the record

is clear that there were substantial weaknesses in Fry's

identification testimony which were brought out at trial.

Admittedly, the guiding hand of counsel at the pre-

liminary hearing would have been beneficial to the de-

fendant’s case at trial. At the preliminary hearing,

62a

trained counsel would have conducted a_ cross-

examination of Fry to expose weaknesses in his testimony

and for use as an impeachment tool at trial.

Nevertheless, we conclude that the denial of counsel

ultimately did not have a substantial or injurious effect

on the jury’s ultimate verdict. There was substantial evi-

dence of guilt, and the jury was well-apprised of the

weaknesses in Fry’s identification testimony. For these

reasons, we conclude that the constitutional error was

harmless.

B.

Ditch’s second and final claim is that trial counsel was

constitutionally ineffective for failing to seek to suppress

the identification made at the preliminary hearing with-

out counsel. Because a Pennsylvania state court adjudi-

cated his ineffective assistance of counsel claim, we may

grant habeas relief only if the state court’s decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Su-

preme Court of the United States.” 28 U.S.C. § 2254(d)(1);

see Williams v. Taylor, 529 U.S. 362 (2000). For the rea-

sons stated below, we conclude that the state court’s deci-

sion was not contrary to, nor an unreasonable application

of, clearly established law as determined by the Supreme

Court, and thus habeas relief is inappropriate.

In considering Ditch’s ineffective assistance of counsel

claim, we are guided by the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Under the

first prong of that test, “the defendant must demonstrate

that counsel’s representation fell below an objective stan-

dard of reasonableness.” /d. at 688. Under the second

prong, the defendant must show that the deficient per-

formance prejudiced the defense. Jd. at 687. In other

words, “[t]he defendant must show that there is a reason-

63a

able probability that, but for counsel’s unprofessional er-

rors, the result of the proceeding would have been differ-

ent. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694. In de-

termining whether the second prong has been met, we

consider “the totality of the evidence before the judge or

jury,” mindful that “a verdict or conclusion only weakly

supported by the record is more likely to have been af-

fected by errors than one with overwhelming record sup-

port.” Jd. at 695-96.

Applying the first prong of the Strickland test, we

conclude that Ditch’s trial counsel’s performance fell be-

low an objective standard of reasonableness. As discussed

above, Ditch was unquestionably denied his right to

counsel at the preliminary hearing at which the identifi-

cation was made. Moreover, it is clearly established law

that evidence of an uncounseled pretrial identification is

subject to a per se exclusionary rule. See Gilbert, 388 U.S.

at 273 (holding that identification testimony given at a

pretrial line-up without counsel is per se inadmissible and

that the state is not entitled to an opportunity to show

that the testimony had an independent source); Moore,

434 U.S. at 231 (“Gilbert held that the prosecution cannot

buttress its case-in-chief by introducing evidence of a pre-

trial identification made in violation of the accused’s

Sixth Amendment rights, even if it can prove that the

pretrial identification had an independent source.”) (ap-

plying the strict rule of Gilbert to identification testimony

given at an uncounseled preliminary hearing).

Under the strict exclusionary rule of Gilbert, supra,

the identification made at the preliminary hearing with-

out counsel was per se inadmissible, and the Common-

wealth would not have been entitled to an opportunity to

show that the identification had an independent source.

Accordingly, we conclude that trial counsel’s performance

64a

fell below an objective standard of reasonableness when

he did not file a motion to suppress the identification.

Hence, the first prong of the Strickland test is satisfied.

The second prong of the Strickland test, which re-

quires us to determine whether “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different,”

466 U.S. at 694, however, is not satisfied.’ As discussed in

detail in Section IJ.A.4 of this opinion, the jury’s verdict

was supported by overwhelming evidence of guilt, includ-

ing unchallenged ballistics evidence. Moreover, as also

discussed therein, given Fry’s admittedly poor eyesight,

the pretrial identification evidence proved to be a rela-

tively weak aspect of the Commonwealth’s case. For these

reasons, we cannot say that there is a reasonable prob-

ability that the result of the proceeding would have been

different.

In sum, based upon an application of the Strickland

test, we conclude that trial counsel was not constitution-

ally ineffective for failing to seek to suppress the identifi-

cation made at the preliminary hearing. We, therefore,

hold that the trial court’s decision was not contrary to,

nor an unreasonable application of, Supreme Court

precedent, and thus habeas relief may not be granted.

III.

For the foregoing reasons, the judgment of the Dis-

trict Court entered on June 29, 2005, will be affirmed.

7 See supra Section I].A.3 for a discussion as to why a pre-

sumption of prejudice does not apply.