PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-4012

_____________

GEORGE T. VICKERS, JR.

v.

SUPERINTENDENT GRATERFORD SCI;

ATTORNEY GENERAL PENNSYLVANIA,

 Appellants

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. No. 2-15-cv-00432)

Honorable Robert C. Mitchell, Magistrate Judge

_______________

Argued: December 5, 2016

Before: FISHER*, KRAUSE, and MELLOY**, Circuit 

Judges.

 

* Honorable D. Michael Fisher, United States Circuit Judge for the 

Third Circuit, assumed senior status on February 1, 2017.

** Honorable Michael J. Melloy, Senior Circuit Judge, United 

States Court of Appeals for the Eighth Circuit, sitting by 

designation.
2

(Filed: June 6, 2017)

_______________

George T. Vickers, Jr.

Graterford SCI

P.O. Box 244

Graterford, PA 19426

 Pro Se

Jerome A. Moschetta [Argued]

Washington County Office of District Attorney

1 South Main Street

Suite 1003

Washington, PA 15301

 Counsel for Appellants

David R. Fine [Argued]

K&L Gates LLP 

17 North Second Street

18th Floor

Harrisburg, PA 17101

J. Nicholas Ranjan

K&L Gates LLP 

210 Sixth Avenue

Pittsburgh, PA 15222

 Amicus Counsel for Appellee1 

 

1 We express our gratitude to David R. Fine and J. 

Nicholas Ranjam of K&L Gates LLP for accepting this matter 

pro bono and for the quality of their briefing and argument in 

this case. Lawyers who act pro bono fulfill the highest 
3

_______________

OPINION

_______________

KRAUSE, Circuit Judge.

Given the fundamental importance of the right to a

jury trial in our justice system, many states have promulgated 

rules, akin to the Federal Rules of Criminal Procedure, 

prescribing that the waiver of that right be on-the-record and 

approved by a court before a defendant enters a guilty plea or 

proceeds by way of non-jury trial. As a general matter, such 

procedures are diligently followed to ensure a defendant’s 

waiver is knowing and voluntary but, on occasion, there are 

lapses. In this case, petitioner’s counsel discussed with him 

generally the right to a jury trial but failed to secure an onthe-record waiver or to apprise petitioner of all aspects of his 

jury trial right before proceeding with a bench trial—conduct

the District Court determined established ineffective 

assistance of counsel under Strickland v. Washington, 466 

U.S. 668 (1984), and justified the grant of habeas relief. 

On appeal by the Commonwealth, we are called upon 

to decide whether counsel’s deficiency on these facts gave 

 

service that members of the bar can offer to indigent parties 

and to the legal profession.
4

rise to structural error, such that Strickland prejudice might be 

presumed, or whether petitioner is still required to establish 

prejudice. Because we conclude a showing of prejudice is 

required, we also have occasion to address the nature of that 

showing and to modify our holding in United States v. Lilly, 

536 F.3d 190 (3d Cir. 2008), in light of intervening Supreme 

Court precedent. As we hold the proper prejudice inquiry in 

this situation is whether there is a reasonable likelihood that,

but for his counsel’s deficient performance, petitioner would 

have exercised his Sixth Amendment right to a jury trial, and 

petitioner here has failed to make that showing, we will 

reverse the judgment of the District Court.

I. Factual Background and Procedural History 

Petitioner George Vickers’s conviction stems from an 

incident in which Vickers punched the victim a single time 

but that punch caused severe injuries. As reflected in the

record from his 2009 trial, the victim first encountered 

Vickers at a bar where Vickers was socializing with the 

victim’s ex-girlfriend. After a brief stay at the bar, the victim

left to catch a bus home. While waiting at the bus stop, the 

victim was “struck from behind” in the “upper neck, shoulder, 

and back area,” which caused him to stumble. App. 38.2 

Though he did not know who shoved him, as he stumbled, he 

“looked up” and “saw George Vickers,” who was “a step and 

a half away.” App. 38. Within seconds of being shoved, the 

victim was “struck over his right eye by what he thought was 

a closed fist” and fell to the ground, unconscious. App. 38. 

The victim suffered numerous serious injuries, including a 

fractured skull, brain hemorrhaging, and bruising of the brain, 

 

2

 All citations to the Appendix refer to what has been 

labeled Appendix Volume II on the public docket. 
5

and was in a coma for four days as a result of the blow. 

Vickers was charged with aggravated assault, recklessly 

endangering another person, harassment, and disorderly 

conduct. 

The issues on appeal all concern the adequacy of the

legal representation Vickers received in connection with the 

waiver of his right to a jury trial. Pennsylvania law provides 

that in order for a criminal case to be tried without a jury, 

“[t]he judge shall ascertain from the defendant whether this is 

a knowing and intelligent waiver, and such colloquy shall 

appear on the record. The waiver shall be in writing, made a 

part of the record, and signed by the defendant, the attorney 

for the Commonwealth, the judge, and the defendant’s 

attorney as a witness.” 234 Pa. Code § 620. Vickers was 

originally represented by private counsel, and although his

case was placed on the Court of Common Pleas calendar as a 

bench trial, these state-mandated procedures were not 

followed in Vickers’s case. Vickers’s private counsel later 

withdrew from his representation and, just a few weeks 

before Vickers’s bench trial was to commence, an assistant 

public defender was assigned to the case. Because the case 

was already calendared as a bench trial, Vickers’s new 

counsel presumed, without confirming, that Vickers had 

formally waived his right to a jury trial at an earlier point, and 

the bench trial went forward as scheduled. The judge who 

presided found Vickers guilty on all counts and sentenced 

him to seven to fourteen years’ imprisonment. 

Following his conviction, Vickers filed a petition for 

relief under Pennsylvania’s Post-Conviction Relief Act

(“PCRA”). In that petition he claimed, among other things, 

that he was deprived of effective assistance of counsel 

because trial counsel “misled [him] on his right to have a jury 
6

trial,” and failed to “obtain a valid waiver” of that right before 

proceeding with a bench trial. App. 61, 73. The PCRA Court 

held an evidentiary hearing, at which Vickers’s trial counsel 

and Vickers testified regarding counsel’s representation. 

According to the testimony of counsel, when counsel

saw the case was already scheduled as a bench trial he 

“assumed there had been a normal waiver at the bar and 

whatnot like that,” and, based on that assumption, did not 

conduct any investigation to determine “what, in fact, 

occurred with regard to the waiver of [Vickers’s] jury trial 

rights.” App. 99-100. Counsel also testified, however, that he 

had spoken with Vickers “generally, about the right to a jury 

trial,” App. 96, that he advised Vickers as to his right to have 

“12 men and women decide the facts of the case as opposed 

to a judge deciding the facts, and just the fundamentals,” App. 

95, and that he understood Vickers to be familiar with the 

criminal justice system because Vickers informed him that he 

had been charged with a felony in a neighboring county the 

previous year. Counsel further testified that he inquired of 

Vickers every time they spoke, including on the day of the 

trial, whether Vickers wanted a jury trial or a bench trial, and 

Vickers consistently wanted to proceed with the scheduled 

bench trial. 

Counsel’s testimony also detailed his strategic 

discussions with Vickers which, in counsel’s view, had led 

Vickers to opt for a bench trial. For example, counsel 

testified he told Vickers that he believed Vickers’s best 

chance of prevailing on the felony charge of aggravated 

assault was to emphasize that this was a “one-punch case,” 

and to argue that Vickers did not have the requisite intent to 

cause the serious bodily injury necessary to support a

conviction—a “narrow legal issue”—he told Vickers “might 
7

be lost to a panel of jurors,” but might be appreciated by a 

judge who could more reliably “distinguish between the 

aggravating factors.” App. 107, 109. Counsel elaborated that 

he warned Vickers that there were risks associated with a 

bench trial because “this courtroom can be a conservative 

with personal injuries, and that’s a judge’s prerogative when 

they listen to the evidence,” App. 95, but he ultimately

recommended that Vickers pursue a bench trial for strategic 

reasons. According to counsel, Vickers “never” expressed a 

preference for a jury trial during these tactical conversations,

App. 118, but rather “indicated he wanted to go forward”

with a bench trial, App. 95. 

Counsel could not recall specifically what he told 

Vickers about his right to a jury trial and did not state—and 

was not specifically asked by Vickers’s PCRA counsel—if he 

informed Vickers that any jury verdict would have to be 

unanimous. Nonetheless, while counsel acknowledged that 

he “did not go through the whole colloquy form” with 

Vickers, App. 99, he confirmed that he firmly believed, as a 

result of his many conversations with Vickers leading up to 

trial and Vickers’s past experience with the criminal justice 

system, that Vickers was aware of his right to proceed by jury 

trial instead of a bench trial, “understood the difference 

between the two,” and chose to go forward with a bench trial. 

App. 100.

Vickers’s testimony at the PCRA hearing painted a 

very different picture. Vickers testified that he “advised [his 

counsel] during several phone conversations . . . that it was 

[his] intent to take this to a jury trial,” App. 139, that he had 

no understanding at the time of the trial that he was giving up 

this right, and that he first discovered that he had a 

constitutional right to a jury trial when doing legal research 
8

for his appeal while incarcerated. Before that point, 

according to Vickers, he mistakenly thought only a majority 

of the jury was required to return a guilty verdict but, even on

that mistaken assumption, he believed this “majority rules” 

system was preferable to relying on the sole discretion of a 

judge, App. 140, and would have exercised his right to a jury 

trial had he been given the opportunity.

On cross-examination, when presented with a guilty 

plea form that he had signed in 2004 in connection with one 

of his prior convictions, Vickers acknowledged he had signed 

the form and had checked the boxes on it that appeared next 

to each of the rights attendant to a jury trial, but he asserted 

he had not read the form. That form provided that, by 

pleading guilty, Vickers was waiving his right to a jury trial 

and all attendant rights, including the right to have “[a]ll 12 

members of the jury finely selected . . . be satisfied that the 

Commonwealth had proven [his] guilt beyond a reasonable 

doubt on each charge, that is, the vote of all 12 must be guilty 

before [he] can be found guilty.” App. 149-50. 

The PCRA court carefully evaluated the conflicting

testimony presented at the hearing and found “the testimony 

of [counsel] credible and the testimony of George Vickers not 

credible.” App. 176. Accordingly, the court reasoned that,

even though Vickers had not waived his right to a jury trial in 

writing or orally on the record, he was not denied effective 

assistance of counsel because he made a strategic decision to 

pursue a bench trial and “freely, voluntarily, and intelligently 

waived his jury trial rights.” App. 177. 

The Pennsylvania Superior Court affirmed, finding “no 

basis” to disturb the PCRA court’s credibility determinations,

and concluding, like the PCRA court, that because Vickers’s
9

waiver of his jury trial right was knowing and voluntary, he 

had not established that he received ineffective assistance of 

counsel.

3

 App. 191. 

His state remedies exhausted, Vickers filed a petition 

for habeas relief pursuant to 28 U.S.C. § 2254 in which he reasserted his claim that counsel was ineffective for proceeding 

with a bench trial when Vickers had not waived his right to a 

 

3 Vickers argues that the PCRA court and Superior 

Court erred by extrapolating from his 2004 plea form to hold 

that any future waiver of the jury trial right would be knowing 

and voluntary. We agree that such reasoning, had it formed 

the basis for the courts’ decisions, would be disturbing and 

fallacious. Here, however, it is apparent that, to the extent 

those courts relied on the document at all, it was in 

connection with broader credibility findings, determining—

from Vickers’s assertion in his direct testimony that he had no 

knowledge of any right to a jury trial before he began 

preparing his appeal, the cross-examination of Vickers

concerning the plea form that proved otherwise, and 

Vickers’s counsel’s testimony that Vickers indicated his 

understanding, based in part on his criminal history, of his 

right to a jury trial and how it differed from a bench trial—

that “the testimony of [counsel was] credible and the 

testimony of George Vickers [was] not credible.” App. 176. 

The PCRA court was best situated to assess credibility at the 

hearing, and, for that limited purpose, we perceive no error in 

its use of the form or the Superior Court’s reliance, in turn, on 

the PCRA court’s credibility assessment.
10

jury trial.4 The District Court agreed with Vickers, holding 

that the Superior Court’s decision was “contrary to or 

involved an unreasonable application of clearly established

federal law,” because, irrespective of the testimony at the 

PCRA hearing, the record reflected that there was no written 

or oral waiver of Vickers’s right to a jury trial. Vickers v. 

Wenerowicz, No. 2:15-CV-432, 2015 WL 7308673, at *6 

(W.D. Pa. Nov. 19, 2015).5 Citing to the familiar two-part 

test for ineffective-assistance-of-counsel claims set forth in 

Strickland v. Washington, 466 U.S. 668 (1984), the District 

Court determined, first, that counsel’s performance was 

constitutionally deficient for failing to obtain a formal jurytrial waiver, and, second, albeit without discussing what 

prejudice must be shown in this circumstance or whether 

Vickers had made that showing, that Vickers also “was 

prejudiced” by his counsel’s deficient performance. Vickers, 

2015 WL 7308673, at *6. Accordingly, the District Court

held Vickers was “entitled to relief here,” and granted him a 

 

4 Vickers filed his habeas petition in the United States 

District Court for the Western District of Pennsylvania, and 

the parties consented to proceed through final judgment 

before a Magistrate Judge. As the Magistrate Judge’s opinion 

and order thus constitute those of the District Court, see 28 

U.S.C. § 636(c)(1), we will refer to the Magistrate’s rulings 

as those of the District Court throughout this opinion. 

5 Vickers also raised three other claims for relief that 

were denied by the District Court. Vickers does not challenge 

those rulings on appeal.
11

writ of habeas corpus.6 Id. The Commonwealth timely 

appealed, and we appointed amicus curiae to assist Vickers in 

his appellate proceedings.

7

 

6

In its opinion granting Vickers’s petition, the District 

Court noted “a complete dereliction of duty” by the Office of 

the District Attorney for “fail[ing] to defend th[e] litigation 

with any degree of diligence” on the Commonwealth’s behalf 

over the course of the proceeding. Vickers, 2015 WL 

7308673, at *2. The troubling pattern of behavior to which 

the District Court referred dates back even as far as the state 

court proceeding, where, e.g., the Commonwealth failed to 

file a brief in response to Vickers’s direct appeal. That 

pattern also continued into Vickers’s federal proceedings 

when, without any explanation or request for an extension, 

the Commonwealth failed to meet its deadline to file a 

response to Vickers’s habeas petition. When the District 

Court still had not received any response from the 

Commonwealth nearly two months after that deadline, it

entered an order for the Commonwealth to show cause why 

Vickers’s request for relief should not be granted due to the 

Commonwealth’s failure to respond to the petition. Again, 

the Commonwealth failed to respond, prompting the District 

Court to issue another order—this time granting the writ of 

habeas corpus and ordering Vickers discharged from custody 

unless the Commonwealth retried him within ninety days. 

After more than a month passed with still no response from 

the Commonwealth, the District Judge issued a third order

scheduling a release hearing for the ninety-day date. Nearly a 

week after this order, the Commonwealth finally awakened to 

the situation and filed a motion for reconsideration, which the 

District Court granted. 
12

II. Jurisdiction and Standard of Review

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

§ 2254 and we have jurisdiction under 28 U.S.C. § 2253. 

Because the District Court did not conduct an evidentiary 

hearing, our review of the District Court’s grant of Vickers’s

 

We are deeply disturbed that, notwithstanding that 

wake-up call, the Commonwealth’s “dereliction of duty” has 

continued into this appeal, requiring this Court to issue a 

court order for the Commonwealth to reply to the brief filed 

by amicus on Vickers’s behalf. At oral argument, counsel for 

the Commonwealth acknowledged these troubling lapses and 

offered an apology to the Court. We trust that the Office of 

the District Attorney, going forward, will represent the 

Commonwealth and fulfill its obligations to the courts with 

far greater diligence and professionalism. 

7 Vickers proceeded pro se on appeal and filed a 

responsive brief supporting the District Court’s grant of relief 

on his ineffective assistance claim but also raising a host of 

other claims, such as an alleged violation of his right to a 

speedy trial, presumably as alternative grounds for affirming. 

We do not address the substance of those other claims here, 

as they were not properly exhausted in the state court, and, in 

any event, appear meritless to the extent they are intelligible. 

However, we appointed counsel as amicus to further explore 

Vickers’s more substantial ineffective assistance claim, and 

we consider counsel’s thorough briefing and excellent 

advocacy as simply expounding on Vickers’s own argument. 

For that reason and for simplicity’s sake, we will identify 

arguments, whether raised by amicus or Vickers, as those of 

“Vickers.”
13

petition is plenary. McMullen v. Tennis, 562 F.3d 231, 236 

(3d Cir. 2009). 

III. Analysis 

Our review of habeas claims is governed by the AntiTerrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), which instructs that where, as here, a state court 

has rejected a petitioner’s claim on the merits, a federal court 

may not grant the writ unless the state court’s decision “was 

contrary to, or involved an unreasonable application of, 

clearly established federal law, as determined by the Supreme 

Court of the United States.” 28 U.S.C. § 2254(d)(1). A 

decision is “‘contrary to’ clearly established federal law if it 

‘applies a rule that contradicts the governing law set forth’ in 

Supreme Court precedent, or if it ‘confronts a set of facts that 

are materially indistinguishable from a decision of the 

Supreme Court and nevertheless arrives at a result different’ 

from that reached by the Supreme Court.” Eley v. Erickson, 

712 F.3d 837, 846 (3d Cir. 2013) (alteration and citation 

omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405 

(2000)). A decision contains an “unreasonable application” 

of clearly established law if no “fairminded jurist[]” could 

agree with the state court’s decision. Harrington v. Richter, 

562 U.S. 86, 101 (2011). 

While a determination that a state court’s analysis is 

contrary to or an unreasonable application of clearly 

established federal law is necessary to grant habeas relief, it is 

not alone sufficient. That is because, despite applying an 

improper analysis, the state court still may have reached the 

correct result, and a federal court can only grant the Great 

Writ if it is “firmly convinced that a federal constitutional 

right has been violated,” Williams, 529 U.S. at 389. See also
14

Horn v. Banks, 536 U.S. 266, 272 (2002) (“[w]hile it is of 

course a necessary prerequisite to federal habeas relief that a 

prisoner satisfy the AEDPA standard of review . . . none of 

our post-AEDPA cases have suggested that a writ of habeas 

corpus should automatically issue if a prisoner satisfies the 

AEDPA standard”). Thus, when a federal court reviewing a 

habeas petition concludes that the state court analyzed the

petitioner’s claim in a manner that contravenes clearly 

established federal law, it then must proceed to review the 

merits of the claim de novo to evaluate if a constitutional 

violation occurred.

8

 See Lafler v. Cooper, 566 U.S. 156, 174

(2012). 

Below, we first address whether AEDPA deference to 

the state court’s denial of relief was warranted, concluding

that it was not because the state court’s analysis was contrary 

to clearly established Supreme Court precedent. We then turn 

to our own de novo review of Vickers’s claim that he 

received ineffective assistance of counsel. 

A. AEDPA Deference 

 

8 These steps sometimes merge in cases in which the 

federal habeas court determines that the state court engaged in 

an “unreasonable application” of clearly established Supreme 

Court precedent because it will be apparent from the 

explication of why the state court unreasonably applied that 

precedent that, under any reasonable application, a 

constitutional violation did occur. See, e.g., Washington v. 

Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 170 (3d Cir. 2015); 

Eley, 712 F.3d at 861. 
15

The Commonwealth contends on appeal that the

judgment should be reversed because the District Court failed

to accord appropriate deference to the state court under 

AEDPA, and, applying proper deference, the Superior Court 

did not engage in an “unreasonable application” of Strickland. 

We agree with the Commonwealth that the District Court

erred, but not because it failed to apply AEDPA deference. 

Indeed, as a threshold matter, we conclude that no 

AEDPA deference is warranted here because the Superior 

Court failed to apply Strickland altogether, resulting in a 

decision “contrary to” clearly established federal law. That 

is, even though the Superior Court correctly identified 

Strickland as controlling, it concluded there was no 

ineffective assistance of counsel on the ground that Vickers’s

waiver of his right to a jury trial was knowing and voluntary. 

That, however, is precisely the reasoning that the Supreme 

Court held was contrary to Strickland in Lafler v. Cooper,

566 U.S. 156 (2012), where the state court had concluded 

there was no ineffective assistance of counsel merely because 

it found petitioner’s rejection of a plea offer to be knowing

and voluntary. Id. at 173. Declining to accord AEDPA 

deference, the Supreme Court held that “[a]n inquiry into 

whether the rejection of a plea is knowing and

voluntary . . . is not the correct means by which to address a 

claim of ineffective assistance of counsel,” and, because the 

state court “fail[ed] to apply Strickland to assess the 

ineffective-assistance-of-counsel claim [petitioner] raised, 

[its] adjudication was contrary to clearly established federal 

law.” Id. In Vickers’s case, in other words, the Superior 

Court’s decision was contrary to both Strickland and Lafler.

This conclusion, however, does not end our inquiry or

require that the Great Writ be granted. Instead, as in Lafler 
16

itself, it merely forfeits the AEDPA deference to which the 

state court’s denial of relief would otherwise be entitled and 

dictates that we review Vickers’s Strickland claim de novo. 

See Lafler, 566 U.S. at 173-74; Breakiron v. Horn, 642 F.3d 

126, 131 (3d Cir. 2011). That is, we no longer owe deference 

to the state court’s legal conclusions, Wiggins v. Smith, 539 

U.S. 510, 542 (2003), but still “must presume that state-court 

factual findings”—including its credibility findings—“are 

correct unless the presumption is rebutted by clear and 

convincing evidence,” Breakiron, 642 F.3d at 131; Jacobs v. 

Horn, 395 F.3d 92, 100 (3d Cir. 2005).

9

 Bearing in mind the 

applicable standard of review, we turn to the merits of 

Vickers’s ineffective-assistance-of-counsel claim. 

B. De Novo Review of Vickers’s Claim 

Reviewing Vickers’s claim of ineffective assistance of 

counsel de novo, we consider, first, whether counsel’s 

 

9

 We have not had occasion, to this point, to 

specifically address the deference we afford to credibility 

findings, as opposed to factual findings more generally, once 

we determine that AEDPA deference is inapplicable. There 

is no question, however, that credibility findings in that 

context are also presumed correct absent “clear and 

convincing evidence” to the contrary, Breakiron, 642 F.3d at 

131, because “[i]n cases where the AEDPA standards of 

review do not apply, federal habeas courts apply pre-AEDPA 

standards of review,” Jacobs, 395 F.3d at 100, and preAEDPA, “federal habeas courts [had] no license to 

redetermine credibility of witnesses whose demeanor ha[d]

been observed by the state trial court, but not by them,” 

Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
17

performance was deficient and, second, whether Vickers has 

established the requisite prejudice.

10

 

1. Strickland Performance Prong 

We begin with Strickland’s performance prong. When 

assessing whether a petitioner has demonstrated that his 

attorney’s representation was constitutionally deficient, we 

look to “the facts of the particular case, viewed as of the time 

of counsel’s conduct,” Strickland, 466 U.S. at 690, and 

evaluate whether counsel’s performance “fell below an 

 

10 We may begin our analysis with either of 

Strickland’s two prongs and follow “the practical suggestion 

in Strickland [that we] consider the prejudice prong before 

examining the performance of counsel prong” where that 

approach “is less burdensome to defense counsel,” Lilly, 536 

F.3d at 196, or makes it “easier to dispose of an 

ineffectiveness claim,” Strickland, 466 U.S. at 697. Here, 

however, neither of those circumstances pertain, as we have a 

fully developed record from the PCRA hearing at which 

counsel already testified, the District Court addressed both 

deficiency and prejudice, and our review of the particular 

deficiencies alleged here may provide guidance to trial courts 

and defense counsel that will benefit, not burden, the criminal 

justice system. See id. (encouraging reviewing courts to 

review ineffectiveness claims in a way that does not “become 

so burdensome to defense counsel that the entire criminal 

justice system suffers as a result”). We therefore will address 

both components of the Strickland inquiry.
18

objective standard of reasonableness” under “prevailing 

professional norms,” id. at 688. 

Vickers has met this standard here because his 

attorney’s failure to ensure that he properly waived his right 

to a jury trial was not “within the range of competence 

demanded of attorneys in criminal cases.” Id. at 687. The 

Supreme Court has repeatedly emphasized the importance of 

a criminal defendant’s Sixth Amendment right to a trial by 

jury and that this right may only be ceded by a knowing, 

voluntary, and intelligent waiver. See Schneckloth v. 

Bustamonte, 412 U.S. 218, 236-37 (1973); Adams v. U.S. ex 

rel. McCann, 317 U.S. 269, 276-77 (1942). And the 

importance of this fundamental right is reflected in both the 

Federal Rules of Criminal Procedure and the Pennsylvania 

Criminal Code, which mandate that all waivers of jury trials 

be in writing, signed by both parties, and approved by the 

court on the record. See Fed. R. Crim. P. 23; 234 Pa. Code § 

620. 

Of course, the touchstone is whether a defendant’s 

jury-trial waiver is knowing and voluntary, so that the failure 

to comply with these procedures does not per se establish a

constitutional violation. See Gov’t of Virgin Islands v. 

Parrott, 476 F.2d 1058, 1061-62 (3d Cir. 1973); 

Commonwealth v. Mallory, 941 A.2d 686, 697-98 (Pa. 2008). 

At the same time, however, compliance provides strong 

assurance ex ante that the defendant has been fully apprised 

of his right to a jury trial and that his waiver is not subject to 

constitutional challenge. As we have previously encouraged 

of our colleagues in the District Court in the context of Rule 

23 colloquies, such on-the-record assurances by the defendant 

himself that his waiver is knowing and voluntary will “help[]

insulate a jury-trial waiver from later attack by a defendant 
19

who claims he did not fully understand the nature of the right 

before he forfeited it . . . [and] will create a record capable of 

withstanding subsequent challenges, satisfy the court’s 

responsibility, facilitate intelligent appellate review, conserve 

scarce judicial resources, and enhance the finality of criminal 

convictions.” Lilly, 536 F.3d at 197 (internal quotation marks 

omitted). Under prevailing professional norms, competent 

defense counsel is expected to ensure a criminal defendant 

receives the benefit of those well-established procedures.

Vickers’s counsel, on the other hand, did not conduct 

any investigation to determine whether Vickers had been 

given an appropriate colloquy before his case was scheduled 

for a bench trial, and simply “assumed there had been a 

normal waiver at the bar and whatnot like that,” App. 99-100. 

Had counsel taken the minimal step of reviewing the case file, 

the docket, or the trial court record to confirm there had been 

a formal waiver—or had he simply inquired of the trial court, 

opposing counsel, prior defense counsel, or his own client to 

verify that a proper waiver had occurred—he would have 

discovered his assumption was in error and he could have 

ensured, consistent with the Pennsylvania Code, that the 

judge engaged in an appropriate colloquy and that Vickers 

waived his jury trial right in writing before proceeding with a 

bench trial. Yet, he did not. Nor did counsel review the 

colloquy form privately with Vickers to confirm that Vickers 

was apprised of all attendant aspects of his jury-trial right 

before he waived that right. 

Although we are sympathetic to the difficult position 

in which counsel was placed when he inherited this case only 

weeks before trial, prevailing professional norms required and 

continue to require counsel in this circumstance to verify,

through a review of the record or an inquiry with the court or 
20

prior counsel, that the client formally waived his jury trial 

right. See Rompilla v. Beard, 545 U.S. 374, 383 (2005) 

(holding that counsel’s failure to examine court file on past 

conviction prior to sentencing constituted deficient 

performance); cf. Kimmelman v. Morrison, 477 U.S. 365, 385 

(1986) (finding deficient performance where attorney failed 

to file a suppression motion “not due to strategic 

considerations, but because . . . he was unaware of the 

[constitutional violation]”). Because counsel failed to do so 

here, his conduct fell below “an objective standard of 

reasonableness.” Strickland, 466 U.S. at 688. 

2. Strickland Prejudice Prong 

We turn next to the prejudice prong. When assessing 

Strickland prejudice, we typically ask “whether the petitioner 

has shown that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different,” with “a reasonable probability” 

meaning “a probability sufficient to undermine confidence in 

the outcome.” Strickland, 466 U.S. at 694. Here, however, 

between the arguments of the litigants and the relevant case 

law, we are confronted with two discrete ways to frame the 

prejudice analysis. 

Vickers argues that because counsel’s ineffectiveness 

deprived him of his right to a jury trial and the deprivation of 

that right constitutes structural error, prejudice under 

Strickland must be presumed and Vickers is automatically 

entitled to relief. The Commonwealth, on the other hand, 

argues that prejudice cannot be presumed and the relevant 

inquiry is whether the outcome of the proceeding would have 

been different had Vickers been tried by a jury rather than a 
21

judge.11 Below, we address: (a) whether prejudice even 

arguably could be presumed in this case; (b) if not, what 

prejudice inquiry is appropriate; and (c) how the proper 

prejudice inquiry applies to Vickers’s case. 

a) Whether Prejudice Should be Presumed 

Turning first to Vickers’s contention that Strickland 

prejudice can be presumed, the Supreme Court has long held 

that constitutional errors do not require automatic reversal, 

and that courts may apply a “harmless error” analysis to 

determine whether the mistake affected the outcome of the 

trial. Chapman v. California, 386 U.S. 18, 22 (1967). The 

Supreme Court has also held, however, that there are certain 

errors, deemed “structural” errors that so “affect[] the 

framework within which the trial proceeds” that they cannot 

 

11

 Vickers contends that because the Commonwealth 

addressed only Strickland’s performance prong in its opening 

brief, it has waived any argument based on the prejudice 

prong. Although it is generally correct that an issue not 

raised in an appellant’s opening brief is waived, Laborers’ 

Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy 

Corp., 26 F.3d 375, 398 (3d Cir. 1994), we may not relieve 

Vickers of his burden to prove both deficiency and prejudice 

to obtain habeas relief because federal courts are only 

empowered to grant the writ “on the ground that [the 

petitioner] is in custody in violation of the Constitution or 

laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

We therefore reject Vickers’s contention that he is 

automatically entitled to relief if he can demonstrate deficient 

performance, and we will proceed to address whether Vickers 

was prejudiced by his counsel’s ineffective performance. 
22

be subject to harmless error analysis. Arizona v. Fulminante, 

499 U.S. 279, 310 (1991). For example, the Supreme Court 

has identified the denial of the right to counsel of a 

defendant’s choice, United States v. Gonzalez-Lopez, 548 

U.S. 140, 149-50 (2006), the denial of the right to a public 

trial, Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984), and 

the denial of the right to self-representation, McKaskle v. 

Wiggins, 465 U.S. 168, 177 n.8 (1984), as errors “with 

consequences that are necessarily unquantifiable and 

indeterminate” such that reversal is required without further 

analysis when they occur, Gonzalez-Lopez, 548 U.S. at 150. 

See also United States v. Lewis, 802 F.3d 449, 461-62 (3d 

Cir. 2015) (en banc) (Smith, J., concurring) (reviewing 

categories of cases constituting structural error). 

Even accepting Vickers’s premise that prejudice may 

be presumed when counsel’s deficient performance results in

structural error,

12 Vickers would not be entitled to such a 

presumption here because no structural error resulted from his 

counsel’s deficiency.

 

12 This issue is currently pending before the Supreme 

Court, which granted certiorari in Weaver v. Massachusetts, 

137 S. Ct. 809 (2017), and held oral argument on April 19, 

2017, to address the question “whether a defendant asserting 

ineffective assistance that results in a structural error must, in 

addition to demonstrating deficient performance, show that he 

was prejudiced by counsel’s ineffectiveness.” See Petition for 

Writ of Certiorari at 3, Weaver v. Massachusetts, No. 16-240 

(S. Ct. Aug. 18, 2016), 2016 WL 4474568. Given our 

disposition of Vickers’s claim, we have no cause to hold his 

case c.a.v. pending a decision in Weaver. 
23

Whether the deprivation of the jury trial right itself 

constitutes structural error is a question that neither the 

Supreme Court nor this Court has squarely addressed. The 

Supreme Court has discussed the “profound” importance of 

the Sixth Amendment right to a jury trial, observing that the 

right “reflect[s] a fundamental decision about the exercise of 

official power” in our criminal justice system. Duncan v. 

Louisiana, 391 U.S. 145, 155-56 (1968). And where a 

defendant has been completely denied the right to a jury trial 

because neither the trial court nor his attorney informs him of 

that right, at least one Court of Appeals has held the error is 

structural and prejudice should be presumed when evaluating 

an ineffective assistance claim. See McGurk v. Stenberg, 163 

F.3d 470, 474 (8th Cir. 1998); see also Miller v. Dormire, 310 

F.3d 600, 603 (8th Cir. 2002). 

Here, however, Vickers does not and cannot claim he 

suffered a total deprivation of his right to a jury trial as a 

result of his counsel’s deficiency. Indeed, the record is 

unambiguous that Vickers was apprised of his right to a jury 

trial because the state court found credible Vickers’s

counsel’s testimony that he and Vickers discussed his right to 

a jury trial on multiple occasions—a finding we must 

presume to be correct, even on de novo review, Breakiron, 

642 F.3d at 131; Jacobs, 395 F.3d at 100. Rather, Vickers

argues that his waiver was rendered unintelligent and 

involuntary either because counsel failed to secure an on-therecord waiver or because counsel did not specifically apprise 

him of all aspects of a jury trial, he was unaware of the 

requirement of juror unanimity when he waived. The premise 

of this second argument is dubious at best, given the PCRA 
24

court’s fact-finding to which we must defer.13 Id. Even if we 

engage both arguments, however, they fail on the merits 

under controlling case law. 

We have previously held, consistent with other Courts 

of Appeals that have addressed the issue, that an on-therecord waiver, while probative and strongly encouraged, is 

not a prerequisite to a knowing and voluntary waiver and, 

hence, is not constitutionally required. Parrott, 476 F.2d at 

1062; United States v. Boynes, 515 F.3d 284, 286 (4th Cir. 

2008); United States v. Rodriguez, 888 F.2d 519, 527 (7th 

Cir. 1989); see also Lilly, 536 F.3d at 197-98 (noting in the 

Rule 23 context that, while strongly advisable, an on-therecord waiver colloquy is not a constitutional requirement). 

As relevant here, then, its omission is not per se constitutional 

error, much less structural error. 

Nor has the Supreme Court or any Court of Appeals 

held to date that a defendant must be specifically apprised of 

the requirement of juror unanimity in order to knowingly and 

intelligently waive his jury-trial right. On the contrary, the 

Courts of Appeals that have confronted that argument have 

rejected it. See Sowell v. Bradshaw, 372 F.3d 821, 833-34

 

13 Implicit in the state court’s credibility 

determinations is its finding that Vickers was aware that any 

jury verdict would have to be unanimous. For example, the 

state court credited counsel’s testimony that Vickers 

“understood the difference between the two [types of trials],” 

App. 100, and rejected as incredible Vickers’s testimony, 

which included his assertion that he mistakenly believed at 

the time he could be convicted by only a majority of the 

jurors.

 
25

(6th Cir. 2004) (holding that knowledge of the juror 

unanimity requirement is not constitutionally required in 

order for a defendant to give a knowing and voluntary waiver 

of his right to a jury trial); U.S. ex rel. Williams v. 

DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983) (holding the 

Constitution requires only that the defendant understand “that 

the choice confronting him was, on the one hand, to be judged 

by a group of people from the community, and on the other 

hand, to have his guilt or innocence determined by a 

judge”).

14 And even Rule 11 of the Federal Rules of Criminal 

Procedure, governing the necessary procedures to ensure that 

a guilty plea is knowing and voluntary, does not require that a 

defendant be specifically apprised of the juror-unanimity 

requirement but only of his general “right to a jury trial,” to 

relinquish that right in connection with a plea waiver. See

Fed. R. Crim. P. 11(b)(1)(C); see also United States v. PaganOrtega, 372 F.3d 22, 29 (1st Cir. 2004) (concluding that not 

even a Rule 11 violation, let alone a constitutional violation,

occurred when defendant was not informed of his right to a 

unanimous jury as part of his plea colloquy). While this 

 

14 Vickers relies on the Sixth Circuit’s opinion in 

United States v. Martin, 704 F.2d 267, 273 (6th Cir. 1983), as 

support for his argument that a defendant must be informed of 

the unanimity requirement to give a knowing and voluntary 

waiver of his right to a jury trial. In Sowell, however, the 

Sixth Circuit explicitly rejected this reading of Martin, 

holding that Martin did not “establish[] a constitutional 

requirement that the defendant understand that the verdict 

must be unanimous.” Sowell, 372 F.3d at 833. 
26

Court has not yet opined on whether the failure to apprise a 

defendant of the unanimity requirement would render a jurytrial waiver constitutionally infirm, it is sufficient for today’s 

purposes to observe that where there is a substantial question 

that such even results in constitutional error, it assuredly does 

not result in structural error. See Neder v. United States, 527 

U.S. 1, 7 (1999) (explaining that structural errors are “a 

limited class of fundamental constitutional errors that ‘defy 

analysis by harmless error standards.’” (quoting Fulminante,

499 U.S. at 309). 

Our conclusion that prejudice must be demonstrated, 

not presumed, in this circumstance is further supported by the 

approach the Supreme Court and this Court have taken in 

addressing similar claims in the past. In Hill v. Lockhart, 474 

U.S. 52 (1985), the Supreme Court was presented with an

ineffective-assistance-of-counsel claim based on counsel’s 

failure to inform a petitioner of the parole consequences of 

his guilty plea, and despite petitioner’s allegation that this 

lack of complete information about the right that he was 

relinquishing made his entire guilty plea “involuntary” and 

“unintelligent,” id. at 56—an allegation closely tracking 

Vickers’s—the Court explicitly held that a prejudice analysis 

was necessary before relief could be granted and proceeded to 

address that prong of the petitioner’s Strickland claim, id. at 

59. 

Likewise, in United States v. Lilly, we were presented 

with a claim of ineffective assistance nearly identical to 

Vickers’s when a petitioner, who had been in the courtroom 

when counsel waived his jury-trial right in favor of a bench 

trial and who had signed a formal waiver form only after the 

trial, asserted that he had not been fully apprised of his right 

to a jury trial and thus had not waived it knowingly and 
27

voluntarily. 536 F.3d at 192-93. To determine whether 

petitioner had established ineffective assistance, we did not 

simply presume prejudice but performed a traditional 

Strickland prejudice analysis before ultimately concluding 

that he was not entitled to relief. Id. at 196. Thus, while we 

leave for another day whether a total failure to inform a 

defendant of his right to a jury trial could give rise to a claim 

of structural error, cf. McGurk, 163 F.3d at 474, we hold, 

consistent with Hill and Lilly, where a defendant has been 

apprised of his basic right to a jury trial, counsel’s failure to 

inform him of certain aspects of that right does not give rise 

to structural error. And, absent structural error, there is no 

colorable argument that prejudice should be presumed in this 

case. 

b) Determining the Proper Prejudice Test 

Having concluded that a showing of prejudice is 

required, we next address what that showing should be. The 

Commonwealth argues in favor of the approach we 

articulated in Lilly, where we held that a petitioner who was 

convicted upon a bench trial and claimed prejudice as a result 

of his counsel’s failure to ensure a valid jury-trial waiver 

must show a reasonable probability that “in the absence of 

counsel’s advice, another fact finder (i.e., a jury) would have 

been reasonably likely to arrive at a different outcome.” 536 

F.3d at 196. Although Lilly correctly reflects that we must 

address the prejudice question as part of our Strickland

analysis, a trio of Supreme Court cases explaining the 

appropriate inquiry in similar circumstances illustrates that a 

modification to Lilly’s prejudice test is necessary. 

First, in Hill, as noted above, the Court considered an 

ineffective-assistance-of-counsel claim based on counsel’s 
28

deficiently informing petitioner of the consequences of his 

guilty plea. 474 U.S. at 55. When addressing Strickland’s 

prejudice prong, the Court did not focus on whether counsel’s 

deficient performance caused the outcome of the proceeding 

to change—i.e., the court did not speculate as to whether 

petitioner would have been convicted had he gone to trial 

instead of pleading—but instead asked “whether counsel’s 

constitutionally ineffective performance affected the outcome 

of the plea process.” Id. at 59. Because the appropriate focus 

went to the process that led to petitioner forfeiting a 

constitutional right, the Court held that the petitioner could 

demonstrate prejudice if he could show a “reasonable 

probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Id. 

In Roe v. Flores-Ortega, the Court applied similar 

reasoning when addressing the appropriate prejudice inquiry 

for a petitioner alleging that counsel’s deficient performance 

led him to forfeit his right to a direct appeal of his conviction. 

528 U.S. 470, 475 (2000). The Court again framed the 

inquiry in terms of the process leading up to the petitioner’s 

decision to forego a judicial proceeding to which he was

constitutionally entitled, holding that the petitioner could 

demonstrate prejudice if he could show that his counsel’s 

ineffective performance led to his not pursuing an appeal that 

he “otherwise would have taken.” Id. at 484. Because the 

petitioner had been deprived of the proceeding altogether, the 

Court explained that it would be “unfair to require a[] . . . 

defendant to demonstrate that his hypothetical appeal might 

have had merit” and a showing that “but for counsel’s 

deficient conduct, he would have appealed” was all that 

Strickland requires. Id. at 486. 
29

Most recently in Lafler, the Supreme Court confirmed 

that this process-based analysis, focusing on whether a 

petitioner lost his ability to exercise a constitutional 

protection he otherwise would have invoked, is necessary to 

evaluate prejudice for ineffective assistance claims alleging a 

defect in the process leading up to a judicial proceeding. 566 

U.S. at 169. In Lafler, the petitioner claimed ineffective 

assistance when his counsel advised him against accepting a 

guilty plea by erroneously insisting that the prosecution 

would be unable to establish an element of the crime for 

which he was charged. 556 U.S. at 161. Thus, Lafler 

presented the inverse of Hill as, rather than being induced to 

accept a guilty plea as a result of counsel’s ineffectiveness, 

the petitioner in Lafler alleged that his counsel’s deficient 

performance forced him to stand trial and receive a harsher 

sentence than he would have had he accepted the plea. Id. at 

163-64. 

The Court explicitly rejected the Government’s 

argument that there could be no Strickland prejudice because

“[a] fair trial wipes clean any deficient performance by 

defense counsel during plea bargaining,” and held that the 

petitioner could show prejudice if he could demonstrate that 

but for counsel’s ineffective assistance, “he and the trial court 

would have accepted the guilty plea.” Id. at 174. Although 

acknowledging that the “[t]he goal of a just result is not 

divorced from the reliability of a conviction,” the Court in

Lafler made explicit the principle underlying its decisions in 

Hill and Flores-Ortega—that when evaluating prejudice in 

the context of a pre-trial error that changed the nature of the 

subsequent proceedings, the “question is not the fairness or 

reliability of the trial but the fairness and regularity of the 

processes that preceded it, which caused the defendant to lose 
30

benefits he would have received in the ordinary course but for 

counsel’s ineffective assistance.” Id. at 169. 

Lafler requires us to revisit the prejudice analysis we 

applied in Lilly. At the time Lilly was decided, it was 

apparent that a Strickland prejudice inquiry was necessary for

certain claims of ineffective assistance that led to a 

deprivation of pre-trial process rights, but it was not clear

how broadly the Court intended to apply the prejudice test it 

announced in Hill and Flores-Ortega. While those cases

addressed the appropriate way to frame Strickland prejudice 

when counsel’s ineffective assistance caused a defendant to 

forego a judicial proceeding altogether—i.e., a trial in Hill 

and a direct appeal in Flores-Ortega—they did not squarely 

address the situation presented in Lilly, Lafler, and the case 

before us here, where, despite counsel’s pre-trial ineffective 

assistance, the defendant received, and ultimately was 

convicted in, an error-free trial. In light of this ambiguity, we 

did not extend Hill and Flores-Ortega to the circumstances 

before us in Lilly, and reverted to the language the Court had 

used in Strickland, that a finding of prejudice requires “a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.” Lilly, 536 F.3d at 196 (quoting Strickland, 466 

U.S. at 694). 

After Lafler, however, there is no longer any

ambiguity about the proper prejudice test in this situation. 

Lafler makes clear that the process-based test of Hill and 

Flores-Ortega is not limited to situations in which counsel’s 

ineffectiveness prevented a judicial proceeding from 

occurring at all, but also applies when the defendant

ultimately received a fair adjudication, so long as counsel’s 

ineffectiveness affects not the propriety of the adjudicatory 
31

proceeding itself, but “the fairness and regularity of the 

processes that preceded it.” Lafler, 566 U.S. at 169. And 

when Hill, Flores-Ortega, and Lafler are read together, there 

is no question that where a defendant claims ineffective 

assistance based on a pre-trial process that caused him to 

forfeit a constitutional right, the proper prejudice inquiry is 

whether the defendant can demonstrate a reasonable 

probability that, but for counsel’s ineffectiveness, he would 

have opted to exercise that right.

We therefore revise our prejudice test set forth in 

Lilly,

15 and turn to the dispositive question here: whether 

Vickers has met his burden by establishing on this record a 

reasonable probability that but for his counsel’s failure to 

ensure a proper waiver of his Sixth Amendment right to be 

tried before a jury, he would have exercised that right.

c) Application of the Proper Prejudice Test 

 

15 Our holding regarding the appropriate prejudice 

inquiry in this context, which merely aligns Lilly with the 

Supreme Court’s subsequent decision in Lafler, does not 

necessitate en banc review. As occurs from time to time, “a 

panel of our Court may decline to follow a prior decision of 

our Court without the necessity of an en banc decision when 

the prior decision conflicts with a Supreme Court decision.” 

United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009); see 

also United States v. City of Philadelphia, 644 F.2d 187, 192 

n.3 (3d Cir. 1980) (“As an inferior court in the federal 

hierarchy, we are, of course, compelled to apply the law 

announced by the Supreme Court as we find it on the date of 

our decision.”). 
32

Applying this prejudice analysis to the facts of this 

case, we conclude that Vickers has not met his burden. 

Although counsel was deficient in failing to ensure that 

Vickers had properly waived his right to a jury trial before 

proceeding with a bench trial, the record is devoid of any 

credible evidence that Vickers otherwise would have opted 

for a jury trial and affirmatively indicates that he made an 

informed, strategic decision to proceed with a bench trial after 

numerous consultations with his counsel. 

Even though we review the state court’s legal 

conclusions de novo, we continue to defer under AEDPA to 

its factual and credibility findings, Jacobs, 395 F.3d at 100, 

and here, the state court found Vickers’s counsel credible 

when he testified that he and Vickers discussed the possibility 

of a jury trial each time they spoke, that he explained to 

Vickers that a jury trial would mean that “12 men and women 

decide the facts of the case as opposed to a judge deciding the 

facts,” and that even on the morning of the trial he reminded 

Vickers that he was facing “serious charges” and could still 

ask for a jury trial, but Vickers “indicated he wanted to go 

forward.” App. 95, 98.

Most importantly, counsel testified that he explained to 

Vickers the strategic advantages he perceived in pursuing a 

bench trial, i.e., he believed a bench trial was Vickers’s best 

chance to be acquitted on the most serious charge he faced—

aggravated assault; it would be difficult for the 

Commonwealth to prove that Vickers had the requisite intent 

to commit aggravated assault based on just one punch; and,

when pursuing this theory, there would be a “tactical 

advantage” to selecting a bench trial because a judge was 

more likely than a jury to appreciate this “narrow legal issue.” 

App. 107, 109. Counsel discussed this strategy with Vickers, 
33

warned Vickers that there was risk inherent in choosing a 

bench trial because the “courtroom can be a conservative with 

personal injuries,” App. 95, and recommended nonetheless 

that Vickers proceed by way of bench trial. Vickers’s 

responses led his counsel to believe Vickers was aware of his 

right to proceed by way of jury trial, that he “understood the 

difference,” between a jury trial and a bench trial, App. 100,

and that he was choosing for strategic reasons to proceed with 

a bench trial.

The only evidence in the record to the contrary, 

Vickers’s testimony that he repeatedly requested a jury trial 

and did not know he had a right to a jury trial until he was 

preparing his appeal, was deemed “not credible” by the 

PCRA court. App. 176. Thus, although counsel erroneously 

failed to ensure that Vickers waived on the record and, even 

assuming counsel’s deficiency left Vickers unaware of the 

requirement of juror unanimity, Vickers has not established 

on this record a “reasonable probability” that, but for 

counsel’s deficiency, Vickers would have elected to proceed 

by way of jury trial. Accordingly, he has failed to 

demonstrate the prejudice Strickland requires in this 

circumstance, and his habeas petition must be denied.

IV. Conclusion 

For the foregoing reasons, we will reverse the District

Court’s order granting Vickers a writ of habeas corpus and 

remand the case for proceedings consistent with this opinion.