# Petition for Writ of Certiorari — Ditch v. Grace (No. 07-91) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1220%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text —— 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 Denia [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1220%3A1. Public record. Not legal advice.