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. e du/thir dc ir c uit_1998/188Filed August 6, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3041

JOHN KENNETH HENDERSON,

Appellant

v.

FREDERICK FRANK, Superintendent; THOMAS W. CORBETT, JR., Attorney General

JOHN K. HENDERSON, Appellant

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 96-cv-00779)

Argued: June 9, 1998

Before: BECKER, Chief Judge, ALDISERT and GARTH, Circuit Judges

(Filed: August 6, 1998)

Shelley Stark (argued)

Office of the Federal Public Defender

960 Penn Avenue

415 Convention Tower Pittsburgh, PA 15222

ATTORNEY FOR APPELLANTDavid F. Pollock (argued)

Office of the District Attorney 216 County Office Building Waynesburg, PA 15270

ATTORNEY FOR APPELLEE

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Facing criminal charges at a preliminary hearing be fore a Commonwealth of Pennsylvania district justice, John K. Henderson signed and filed a standard waiver of cou nsel form. He then petitioned the state court to allow h im to proceed pro se, which was allowed without a recorde d colloquy between Henderson and the judge regarding the dangers of self-representation. Henderson was not represented by counsel at a subsequent pretrial hea ring where he unsuccessfully moved to suppress his confe ssion. He was represented by counsel at his trial, where a jury found him guilty of burglary, criminal conspiracy, criminal attempt to commit burglary and criminal mischief.

After failing to obtain relief from his conviction in the state court system, Henderson petitioned the distri ct court for a writ of habeas corpus under 28 U.S.C. S 2254, alleging that his invalid waiver of counsel and subsequent l ack of representation at the suppression hearing violated the Sixth

Amendment. The district court denied relief and we granted a certificate of appealability. 28 U.S.C. S 2253(c) (2). We must consider two separate but related issues: Firs t, did signing a standard waiver of counsel form at the preliminary hearing and later petitioning the court for permission to proceed pro se, by themselves, consti tute a knowing, voluntary and intelligent waiver of his ri ght to counsel at a subsequent suspension hearing? Second, if this did not satisfy Sixth Amendment waiver require ments and we grant a writ of habeas corpus, should the gr ant of the writ be conditioned on his receiving a new tria l or merely a new suppression hearing? Before meeting th ese issues head-on, we must first decide whether his ha beas

2petition was time-barred under provisions of the

Antiterrorism and Effective Death Penalty Act of 19 96 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and whether he exhausted state remedies before filing t he

Petition.

The district court had jurisdiction pursuant to 28 U.S.C. S 2241(a), and we have jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253(c)(1)(A). Henderson's Notice of Ap peal was timely filed. Rule 4, Federal Rules of Appellate Pr ocedure.

We will reverse and remand to the district court to issue the writ, conditioned on the Commonwealth affording Henderson a new suppression hearing and a new trial

.

I.

In April, 1992, the Waynesburg, Pennsylvania Police arrested Henderson for receiving stolen property in connection with the burglary of a clothing store. O nce in police custody, Henderson confessed to the burglary of the clothing store and also to the attempted burglary o f a hardware store a few months earlier. He was subsequ ently charged with both crimes.

Prior to the preliminary hearing on July 6, 1992, Henderson applied for and was appointed a public defender. Because this particular attorney withdrew from the representation prior to the hearing, he was rep resented at the hearing by another public defender, Elizabet h Haque. At this hearing, Henderson submitted a form entitle d "Waiver of Counsel" to the district justice. The st andard form was filled out with Henderson's name, the char ges of "Burglary, Criminal conspiracy, Criminal attempt, C riminal mischief & Criminal Conspiracy" and contains Hender son's signature below a series of pre-printed statements, including:

I, John Henderson , have been informed t hat I have the right to have a lawyer represent me , and if I cannot afford one, one will be afforded to m e without

cost. . . .

I, John Henderson , am a ware of the perm issible range of sentences and/or fines for the offe nses charged. . . .

3I knowingly, voluntarily and intelligently w aive these

rights and choose to act as my own lawyer at this hearing/trial.

App. at 33. The district justice signed the form un der the statement, "I HAVE DETERMINED THAT THE DEFENDANT
HAS MADE A KNOWING, VOLUNTARY, AND INTELLIGENT

WAIVER OF HIS RIGHT TO COUNSEL." Id.

On July 17, Henderson filed a "Petition to Proceed on own Behalf", which was granted by the trial court. It is unclear from the record whether Elizabeth Haque con tinued to serve as court-appointed stand-by counsel for He nderson after this point. Henderson next filed a pro se Mot ion to Suppress his confession, and after a suppression he aring on September 25 at which he represented himself, an d at which Ms. Haque's presence is not apparent on the r ecord, his Motion was denied. The court then appointed new counsel to represent Henderson at trial and the jur y convicted Henderson on all counts. The trial court sentenced him to 5 to 20 years at Huntingdon State

Correctional Institution.

Henderson appealed to the Pennsylvania Superior Cou rt, alleging, inter alia, that he was denied the effect ive assistance of counsel at the suppression hearing. H is conviction was affirmed and the Supreme Court of Pennsylvania denied his Petition for Allowance of A ppeal, which raised a violation of "the right to counsel." The Court of Common Pleas denied his Pennsylvania Post Convic tion Relief Act Petition, 42 Pa. Cons. Stat. SS 9541-954 6, which also raised the deprivation of counsel issue.

Henderson gave his Habeas Corpus Petition, which wa s addressed to the federal district court in Pittsbur gh and dated April 16, 1996, to Huntingdon SCI prison offi cials for delivery. The record does not disclose the precise date that his Petition was handed to the prison officials. Th e record

does reveal that the district court clerk filed the Petition on April 25, one day after the effective date of the A EDPA amendments to the federal habeas corpus statute.

Our review of whether Henderson has exhausted his state remedies is plenary. See Doctor v. Walters, 9 6 F.3d 675, 678 (3d Cir. 1996). Whether the AEDPA applies to this

4case, i.e., whether Henderson's Petition was pendin g on the

AEDPA's April 24, 1996 enactment date, is a jurisdi ctional question subject to plenary review. See In re Flana gan, 999 F.2d 753, 756 (3d Cir. 1993). If we conclude that t he AEDPA applies to Henderson's petition, then we may

reverse the state court's denial of his Sixth Amend ment claim only if the decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the Unit ed States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. S 2254(d) ; see Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997). If the AEDPA's amendments to S 2254 do not apply, then we exercise simple plenary review. See Bey, 124 F.3d at 528.

II.

The Commonwealth has suggested that Henderson's Petition was filed after enactment of the AEDPA, wh ich amended the federal habeas statute in two respects relevant to this case: (1) the AEDPA provides for a one-year period of limitations to file S 2254 petitions, run ning from "the date on which the judgment became final by the conclusion of direct review or the expiration of th e time for seeking such review", S 2244(d)(1)(A), and (2) it i mposes a new, limited standard of review which restricts fed eral court action by requiring deference to the state court's legal resolution of the issue petitioned, S 2254(d).

For several discrete reasons, we are not impressed by the Commonwealth's tardy presentation of this argument which it neglected to present to the district court. Firs t, we conclude that Henderson's Petition was timely filed prior to the effective date of the act, April 24, 1996, that therefore his Petition was pending on that date and that the AEDPA does not apply. See Lindh v. Murphy, 117 S. Ct. 205 9, 2063 (1997). We reach this conclusion because we agree w ith Henderson's claim that he handed over his petition, which was dated April 16, 1996, to prison officials befor e April 24, 1996 and therefore it was timely filed. See Houston v. Lack, 487 U.S. 266, 276 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998) (the teachings of Houston--that delivery

5of a notice of appeal by a pro se prisoner to priso n officials

is tantamount to filing with the clerk of court--ap ply to filing a S 2254 habeas petition).

Putting aside that the Commonwealth failed to raise this issue before the district court, we are unable to a ccept its argument, somehow made with a straight face, that

because the clerk received the transmittal from the prison on April 25, Henderson did not place it in the hand s of the prison officials until the day before, to-wit April 24; that in a herculean burst of bureaucratic efficiency and po stal service it was processed by the various levels of p rison administration and delivered to the rural post offi ce in Huntingdon, Pennsylvania that same day; that in lig htning speed, the U.S. Postal Service carried it from Cent ral Pennsylvania over the mountains to the Pittsburgh metropolitan distribution center--covering half the distance of the state--where, without any delay whatsoever, it was

delivered to the district court clerk's office in P ittsburgh by the next morning. If the Commonwealth had introduce d evidence to support this ambitious scenario, it mig ht have received some favorable reception here. But no such

evidence was submitted. And what we know as men and women about prison administrative procedures and th e pace of U.S. Mail delivery, now described as "snail mail" by e-mail aficionados, we must not forget as judges. W e will not accept the Commonwealth's theory that we should employ a kind of judicial notice to accept its theo ry.

We recognize that "prison authorities are in a posi tion to easily show when a document was received or mailed under established prison procedures for recording the dat e and time at which papers are received by prison officia ls in the prison's mail room." Flanagan, 999 F.3d at 757 (cit ing Houston, 108 S. Ct. at 2384). Thus, the Commonwealt h should have been expected to support its untimeline ss argument with prison logs documenting that Henderso n deposited his Petition with prison authorities on A pril 24 or April 25, 1996. Absent such proof to the contrary, we conclude that Henderson's Petition, having arrived in Pittsburgh on April 25, must have been first delive red to prison authorities some time before April 24, and t herefore

should be deemed filed before the AEDPA effective d ate.

6Because the AEDPA does not apply here, the one-year

period of limitations of the amended S 2244(d) does not bar the Petition.1 We repeat that, in this case, the Commonwealth had the burden of proving that the Pet ition had been delivered to prison authorities on April 2 4 and not before. It not only failed to meet its burden, it d id not even

see fit to raise this issue in the district court.

III.

A federal court may not grant a writ of habeas corp us unless (1) "the applicant has exhausted the remedie s available in the courts of the State", (2) no such state remedy is available or (3) available remedies are i neffective to protect the applicant's rights. 28 U.S.C. S 2254 (b)(1). To exhaust the remedies available in the Pennsylvania courts, Henderson must first fairly present to the Pennsylv ania

courts all claims he will make in his Habeas Petiti on, in order to give the state courts "the `opportunity to pass upon and correct alleged violations of [his] federal rig hts.' " See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curi am) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) ).

Henderson raised one issue in his Petition to the d istrict court: "Petitioner did not knowingly and intelligen tly waive his Sixth Amendment Right to Counsel." For Henderso n to have "fairly presented" this issue to the Pennsylva nia courts, his "state court pleadings and briefs must demonstrate that he has presented the legal theory and supporting facts asserted in the federal habeas pet ition in

such a manner that the claims raised in the state c ourts are substantially equivalent to those asserted in f ederal court." See Doctor, 96 F.3d at 678 (quotation omitt ed).

The record clearly demonstrates that Henderson, following his conviction, "fairly presented" before each level of state court hierarchy the issue of the effective ness of his waiver of counsel on his subsequent pro se represen tation at the suppression hearing. App. at 56, 61 (Superio r Court

___________________________________________________ ______________

1. Even if the AEDPA applied here, S 2244(d) would not time-bar Henderson's Petition because, as this Court recentl y held, habeas petitions need only be filed before April 24, 1997 to be timely under the new standard. See Burns, 134 F.3d at 111.

7of Pennsylvania); id. at 363 (Supreme Court of

Pennsylvania); id. at 85 (Common Pleas Court of Gre ene County). Moreover, the Commonwealth conceded to the

district court in its Answer to Henderson's Habeas Petition that "[t]he petitioner has exhausted his state reme dies as to the issue of his right to counsel at the suppressio n hearing, albeit under the guise of an assertion of ineffecti ve assistance of counsel." App. at 23.

Notwithstanding the district court's rather detaile d analysis of the nuances of exhaustion--it construed Henderson's Petition as raising two Sixth Amendment violations, one at the preliminary hearing and anot her at the suppression hearing, and conducted a separate exhaustion analysis for each--we are satisfied that Henderson has fulfilled the exhaustion requirement. The Supreme Court has warned that judges should not mis read habeas petitions in order to split single claims an d conduct separate exhaustion analyses for each. Engle v. Isa ac, 456 U.S. 107, 124 n.25 (1982) ("A creative appellate ju dge could almost always distill from these allegations an une xhausted . . . claim."). We read the record to indicate that Henderson was without counsel at only one critical stage of h is criminal proceeding--the suppression hearing. His r ight to counsel at this juncture certainly could have been waived, but it is the government's burden to demonstrate th at such a waiver was voluntary, knowing and intelligent. Se e Brewer v. Williams, 430 U.S. 387, 403 (1977). That the waiver analysis in this case involves two pieces of evidence at two different times--a waiver form signed by Hen derson at the preliminary hearing and his motion to procee d pro se filed before the suppression hearing--does not tran sform the single, alleged constitutional deprivation into two separate ones.

Any doubt that Henderson raised only a single claim before the state courts and again in his Habeas Pet ition is answered by Henderson's Habeas Petition itself, whi ch states as the single, simple ground for review,"Pet itioner did not knowingly and intelligently waive his Sixth Amendment Right To Counsel." App. at 11. We reject the Commonwealth's attempt to split the claim for exhau stion purposes--right to counsel at the preliminary heari ng and

8right to counsel at the suppression hearing--becaus e it was

the Commonwealth that broached the issue, notwithstanding Henderson's simple statement of the issue presented. See McMahon v. Fulcomer, 821 F.2d 934, 9 41 (3d Cir. 1987). The legal memorandum Henderson submitted in support of his Petition clarified any ambiguity the district court may have had when he wrote of hi s "single constitutional issue" that "[t]he legal cla im of invalid waiver of counsel at the preliminary hearing is pre cisely the same as invalid waiver of counsel at the suppressio n hearing."

What we said in McMahon, 821 F.2d at 941, may be reiterated to control the present matter:

Though appellant's petition may have been i nartfully drafted, it was the Commonwealth, not the pe titioner, that construed it as containing more than on e claim. We find the record below reveals that [Hende rson] clarified any ambiguity with respect to the Petition for a Writ of Habeas Corpus and adequately infor med the court that the Petition contained only one i ssue.

Accordingly, we conclude that Henderson properly exhausted the issue of his right to counsel at the suppression hearing. We turn, then, to the merits o f his

Petition.2

IV.

The Sixth Amendment provides, inter alia:"In all cr iminal prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defense." U.S. Co nst. amend. VI; see Bey, 124 F.3d at 528. The right to c ounsel attaches at arraignment, extends through the first appeal and guarantees an accused the assistance of counsel at all critical stages of a proceeding. Michigan v. Harvey , 494 U.S. 344, 357 (1990). A pretrial hearing considering the suppression of the defendant's confession is such a critical stage because its "results might settle the accused 's fate

___________________________________________________ ______________

2. Because we concluded in Part II supra that the A EDPA does not apply to this Petition, we exercise plenary review over t he state court judgment. See Bey, 124 F.3d at 528.

9and reduce the trial itself to a mere formality." S ee id. at

358 n.5 (quoting United States v. Wade, 388 U.S. 21 8, 224 (1967)).

Concomitant with the right to be defended by counse l during criminal proceedings is the accused's right to waive counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 821 (1975). In order to establish that Henders on validly waived his right to counsel, the Commonweal th bears the heavy burden of proving that the waiver w as voluntary, knowing and intelligent. See Brewer, 430 U.S. at

403. The district court determined that Henderson v alidly waived his right to counsel, relying on (1) the wai ver form which Henderson signed and filed with the district justice at the preliminary hearing and (2) the "Petition to Proceed on own Behalf " which Henderson filed pro se with t he Court of Common Pleas before the suppression hearin g.

We conclude, however, that these documents alone--t he generic waiver form unspecific to Henderson's case and a Petition which states, almost exclusively, "I wish to proceed on my own behalf "--are insufficient to meet the Commonwealth's "weighty obligation . . . to prove a n intentional relinquishment or abandonment of a know n right or privilege." App. at 33, 35; see Brewer, 43 0 U.S. at

403-404.

To ensure that an accused is aware of the pitfalls possible in self-representation, "the district cour t should advise him in unequivocal terms both of the technic al problems he may encounter in acting as his own atto rney and of the risks he takes if his defense efforts ar e unsuccessful." See United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982). As a matter of constitutional l aw, we have imposed a clear and unambiguous obligation upo n a trial judge who is faced with an accused who states merely that he is aware of his right to counsel but wishes to waive that right. A statement by a defendant that he wish es to proceed pro se is not enough. Signing a pre-printed form is not enough. See Piankhy v. Cuyler, 703 F.2d 728, 73 1 n.4 (3d Cir. 1983). Whether it be a U.S. District Judge or a U.S. Magistrate Judge in a federal prosecution or a stat e judge in a state criminal proceeding, the trial judge mus t conduct a colloquy with the accused to determine that the w aiver is

10not only voluntary, but also knowing and intelligen t. Id. At

a minimum,

[t]o be valid [a defendant's] waiver must be made with an apprehension of the nature of the charges , the statutory offenses included within them, the range of allowable punishments thereunder, possible d efenses to the charges and circumstances in mitigati on thereof,

and all other facts essential to a broad und erstanding

of the whole matter.

Id. at 188-189 (quoting Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality opinion) (reversing denial of habeas petition because standard, pre-printed waiver of co unsel form insufficient to satisfy Sixth Amendment)). We have held that an accused's protection under the Sixth Amendment Right to Counsel is not satisfied when a trial judge has failed to conduct "a penetrating and comprehensive examination" of the accused's waiver attempt which ensures that the accused is knowledge able about his decision, even when the colloquy skips ju st one of the above factors. See Welty, 674 F.2d at 189 (n o waiverwhere court merely informed defendant that selfrepresentation is "inadvisable") (quoting Von Moltk e, 332 U.S. at 724 (plurality opinion)); see also United S tates v. Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996) (no wa iver notwithstanding trial judge's detailed colloquy wit h defendant because judge failed to state that he was authorized to impose greater sentence than that imp osed in defendant's first trial).

In this case, neither the waiver of counsel form no r the petition to proceed pro se explained, for example, what

sentences or fines Henderson could face if convicte d, nor did they demonstrate Henderson's understanding of"a ll other facts essential to a broad understanding of t he whole matter." See Welty, 674 F.2d at 189 (quoting Von Mo ltke, 332 U.S. at 724 (plurality opinion)); see also Unit ed States v. Salemo, 61 F.3d 214, 222 (3d Cir. 1995) (invalid waiver where no recorded colloquy, notwithstanding trial j udge's apparent familiarity with defendant's understanding of legal issues in case). As a plurality of the Supreme Cour t described in Von Moltke, 332 U.S. at 724,"a mere ro utine inquiry--the asking of several standard questions f ollowed

11by the signing of a standard written waiver of coun sel--may

leave a judge entirely unaware of the facts essenti al to an

informed decision that an accused has executed a va lid waiver of his right to counsel." A generic waiver f orm such as Henderson's cannot replace the verbal colloquy b etween judge and defendant, set forth for the record, to s atisfy the judge's obligation to ensure a waiver is made volun tarily, knowingly and intelligently. See Singer v. Court of Common Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989). We there fore

conclude that Henderson did not make a valid waiver of his right to counsel at the suppression hearing.

The writ of habeas corpus should have been granted.

V.

But this does not end our deliberation. The Commonwealth urges that if we issue the writ it sho uld be conditioned upon the Commonwealth affording Henders on only the opportunity for a new suppression hearing, and then conducting a new trial only if his confession is suppressed. Henderson suggests otherwise. He argues that he should be entitled to not only a new suppression hearing but also a new trial before a jury, regardless of t he outcome of the suppression hearing. To determine what condi tions should be attached to the grant of the writ, it isf irst necessary to determine if we have the authority to condition the release on any proceeding less than a new trial , and if so, we must decide if we should exercise that autho rity under the circumstances of this case. We begin our analysis by addressing the precise nature of federa l court habeas corpus jurisdiction over petitions emanating from criminal convictions in the state court system.

A.

Let there be no misunderstanding that federal habea s corpus review of state criminal convictions is an a nomaly in the jurisprudence of res judicata. It is only in th e context of a state criminal proceeding that a state court determination of federal constitutional law may be reexamined anew in the federal court system. Thus, where a federal constitutional issue is presented to the state court

12system in a civil action in a proceeding brought un der 42

U.S.C. S 1983, the Supreme Court has held that Cong ress did not intend "to allow relitigation of federal is sues decided after a full and fair hearing in a state court simp ly because the state court's decision may have been erroneous. " Allen v. McCurry, 449 U.S. 90, 101 (1980). Although the w rit of habeas corpus is a civil proceeding, at least since 1953 the Court has considered it a special exception to this rule. Thus in Brown v. Allen, 344 U.S. 443, 500 (1953), J ustice Frankfurter, speaking for the majority, wrote, "the prior

State determination of a claim under the United Sta tes

Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which Congress, by the Act of 1867, provided it should no t have." Also speaking for the majority, Justice Reed stated ,"[t]he state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort o f another jurisdiction on federal constitutional issues. It i s not res judicata." Id. at 458.

If there was difficulty trying to reconcile the phi losophy of

the Brown v. Allen Court in 1953 with the Allen v. McCurry Court in 1980, Justice Brennan, speaking for the Co urt in 1963 in Fay v. Noia, 372 U.S. 391, 430 (1963), carv ed out a sound jurisdictional basis for the present concep t of federal habeas corpus, stating that, "while our app ellate function is concerned only with the judgments or de crees of state courts, the habeas corpus jurisdiction of the lower federal courts is not so confined. The jurisdiction al prerequisite is not the judgment of a state court b ut detention simpliciter." Therein Justice Brennan emp hasized that "[h]abeas lies to enforce the right of persona l liberty; when that right is denied and a person confined, th e federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; i t can act only on the body of the petitioner." Id. at 430-431

.

With this understanding, and conscious that we are not reviewing in ipsis verbis the state court decision but only inquiring into detention simpliciter, we lack the a bility to "revise the state court judgment." It would seem th at federal habeas power is limited, first, to a determ ination of whether there has been an improper detention by vir tue of

13the state court judgment; and second, if we find su ch an

illegal detention, to ordering the immediate releas e of the prisoner, conditioned on the state's opportunity to correct

constitutional errors that we conclude occurred in the initial proceedings. This is not a direct appeal fr om a federal conviction, where upon vacating the judgmen t this Court would have unlimited power to attach conditio ns to the criminal proceedings on remand. See, e.g., Unit ed States v. Gravatt, 868 F.2d 585, 591 (3d Cir. 1989) . Rather, this is federal habeas corpus relating to a state c onviction.

B.

Our relief must thus be fitted between two principl es underlying habeas corpus jurisprudence. The first i s found

in the habeas statute itself: "The court shall summ arily hear and determine the facts, and dispose of the ma tter as law and justice require." 28 U.S.C. S 2243. The sec ond is that "[b]oth the historic nature of the writ and pr inciples of federalism preclude a federal court's direct interf erence with a state court's conduct of state litigation." See B arry v. Brower, 864 F.2d 295, 300 (3d Cir. 1988). Within th e strictures of these principles, federal courts have most often granted the relief in habeas cases that has require d the least intervention into the state criminal process. Courts usually condition the issuance of a writ, which rel eases the body of the prisoner from custody obtained through unconstitutional means, upon the state's failure to retry the habeas petitioner within a reasonable time in a way that comports with constituional dictates. See, e.g., Br ewer, 430

U.S. at 407 n.13.

It is true that under certain circumstances, federa l courts

have conditioned the issuance of a writ on the stat e's conducting proceedings narrower than a full retrial . See Jackson v. Denno, 378 U.S. 368, 394 (1964) (conditi oning writ on state court conducting evidentiary hearing to decide whether petitioner's confession was voluntary or co erced and thus inadmissible at trial, a decision which th e state court had left for the jury to make in contraventio n of the petitioner's due process rights in the state trial; further ordering that if the state court decides the confes sion was coerced, then a new trial would be necessary to avo id the

14writ). However, such cases make clear that conditio nal

writs must be tailored to ensure that all constitut ional defects will be cured by the satisfaction of that c ondition. The Supreme Court "has repeatedly stated that feder al courts may delay the release of a successful habeas petitioner in order to provide the State an opportu nity to correct the constitutional violation found by the c ourt." Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (emphasis a dded). This Court certainly has the power to condition the writ on a new trial. Before we further parse the relief and limit the condition to a suppression hearing alone, we must e xamine

the nature of the constitutional violation found he re in order to be sure that simply conducting the new hea ring will completely eradicate the violation, and to be sure we do not "revise the state court judgment." See Faye, 37 2 U.S. at

431.

C.

The right to the assistance of counsel granted in t he Sixth Amendment, including the "correlative right t o dispense with a lawyer's help", Adams v. United Sta tes ex rel. McCann, 317 U.S. 269, 279 (1942), is "one of t he safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty ", Johnson v. Zerbst, 304 U.S. 458, 462 (1938). This constitutional right "withholds from federal courts [and from state courts via the Fourteenth Amendment, Gid eon v. Wainwright, 372 U.S. 335, 345 (1963)], in all crimi nal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Johnson, 304 U.S. at 463. Had Henderso n been deprived of his right to counsel at the trial itsel f, certainly we would require no less than a new trial to preven t a writ from issuing. We must decide, however, whether the deprivation of counsel at Henderson's suppression c ast enough taint on the counseled trial itself that we must

condition the writ on a new trial. We conclude that it did.

This case must first be distinguished from those in which a constitutional violation in the state criminal pr oceedings could be corrected by issuing a writ conditioned on something less than a whole trial--a hearing, for e xample.

15In Jackson, 378 U.S. at 377, 394, the Supreme Court held

unconstitutional a state criminal trial procedure i n which a judge was not given the discretion to exclude a def endant's confession if a "fair question" existed about its voluntariness. Giving the jury the primary responsi bility to

first determine whether the confession was voluntar y, and second, to discredit involuntary confessions which the jury has at that point already heard, violated due proce ss. Id. at 377. In fashioning a remedy, the Court recognized t hat the defendant was entitled to a hearing in which the voluntariness, and hence admissibility, of his conf ession would be determined apart from "the body trying gui lt or

innocence." Id. at 394. The Court concluded:

So far we agree and hold that he is now enti tled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determine d that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered b y the jury, we see no constitutional necessity at that p oint for proceeding with a new trial, for Jackson has already been tried by a jury with the confession pla ced before it and has been found guilty.

In that case, because the constitutional violation suffered by the habeas petitioner was the lack of a necessar y hearing, the Court could remedy that defect by orde ring a constitutional hearing itself. It was the legal out come of that hearing alone--a determination about the voluntariness of the confession--that was important

. Because it had been missing, the Court was able to "dispose of the matter as law and justice require," 28 U.S.C. S 2243, by granting the narrow relief of ordering t he hearing

itself.

However, the nature of the constitutional violation suffered by Henderson is very different than that i n Jackson. To be sure, the Court there stated that no new trial was necessary "for Jackson has already been t ried by a jury with the confession placed before it and has been found guilty." Jackson, 378 U.S. at 394. But the li nchpin of the Court's decision in Jackson, and the sole issue argued and decided there, was not the Sixth Amendment Righ t to

16Counsel present in this case, but a determination t hat "a

conviction based upon a coerced confession . . . ca nnot

withstand constitutional attack under the Due Proce ss Clause of the Fourteenth Amendment." Id. at 377. Th ere is a completely different issue presented here, and it is one that requires a completely different analysis. When Henderson was deprived of his Sixth Amendment Right to Counsel at the suppression hearing, he lost much mo re than an opportunity to have his confession suppress ed-- the legal outcome of that hearing. Rather, the cons titutional defect he suffered in the first suppression hearing was a procedural, structural defect which may have had repercussions in plea bargaining, discovery and tri al strategy that would not be cured by a new suppressi on hearing alone. This is a much more sophisticated ri ght and its analysis must always begin where the due proces s determination leaves off.

The importance of "the guiding hand of counsel at e very step in the proceedings against him," Powell v. Ala bama, 287 U.S. 45, 69 (1932), cannot be understated. Firs t, representation by counsel in the stages leading up to trial is beneficial to the defendant who may wish to purs ue his plea bargaining options and avoid trial altogether. See Grades v. Boles, 398 F.2d 409, 413 (4th Cir. 1968) ("Counsel, or effective waiver thereof, is a sine q ua non of permissible plea bargaining."). Second, "trained co unsel can more effectively discover the case the State has ag ainst his client and make possible the preparation of a prope r defense to meet that case at the trial." See Colema n v. Alabama, 399 U.S. 1, 9 (1970). Third, "the skilled interrogation of witnesses [at a pretrial hearing] by an experienced lawyer can fashion a vital impeachment tool for

use in cross-examination of the State's witnesses a t the trial, or preserve testimony favorable to the accus ed of a witness who does not appear at the trial." Id. Part icularly here, where three of the four witnesses to testify at the suppression hearing testified at Henderson's trial, see App. at 159, 213, the participation of a skilled attorne y at both proceedings certainly would have been beneficial to

Henderson's ultimate defense. Henderson suffered a constitutional deprivation that went to the heart o f the criminal trial process itself, a violation which ca nnot be

17remedied by merely ordering a new suppression heari ng

and conditioning a new trial on its sheer outcome a lone. Cf. Waller v. Georgia, 467 U.S. 39, 47-50 (1984) (in no n-habeas case reviewing state criminal convictions, where de fendants failed to have wiretap evidence suppressed in a clo sed pretrial hearing that violated the Sixth Amendment' s public trial guarantee and were convicted at trial, the Co urt remanded for new suppression hearing only; however, the Court stressed that the outcome of such hearings of ten replaced the importance of the trial itself and the Court did not indicate any way in which the procedure and con duct of the suppression hearing, other than its sheer ou tcome alone, would affect the trial or any other part of the proceedings in that case).

Moreover, the value of counsel to Henderson at the hearing must be underscored because the hearing concerned what was undoubtedly the most damaging pi ece of evidence offered against Henderson at trial: his confession. Of course, that Henderson failed to hav e his confession suppressed in no way precluded his attac k on the credibility of the confession at trial. See Cra ne v. Kentucky, 476 U.S. 683, 690 (1986). The judge may n ot

have ruled as a matter of law that the confession w as inadmissible, but had a skilled attorney represente d Henderson at the suppression hearing, he or she wou ld have confronted the witnesses against Henderson and studied the Commonwealth's trial strategy, in the h opes of preparing a better attack on the factual environmen t of the confession at a trial by jury. See id. at 691; Danc y v. United States, 361 F.2d 75, 77 (D.C. Cir. 1965) ("defense counsel's

conduct of the cross-examination of witnesses at th e trial reflects a tentative and probing approach due to hi s ignorance of certain doubtful areas in the governme nt's proof which might well have been known to him had h e been able to participate in the preliminary hearing ").

D.

Finally, we decide that the deprivation of Henderso n's right to counsel at the suppression hearing is one of the

"structural defects in the constitution of the tria l mechanism, which defy analysis by `harmless-error'

18standards." See Arizona v. Fulminante, 499 U.S. 279 , 309

(1991); see also Salemo, 61 F.3d at 221-222 (refusi ng to conduct harmless error analysis to Sixth Amendment violation at sentencing hearing); United States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990) (harmless error an alysis inapplicable to waiver of counsel cases); United St ates v. Bohn, 890 F.2d 1079, 1082 (9th Cir. 1989) (harmless error analysis inappropriate when defendant denied right to counsel at in camera hearing).3 The existence of st ructural defects, including deprivation of the right to coun sel at the trial itself, "requires automatic reversal of the c onviction because they infect the entire trial process." Brec ht v. Abrahamson, 507 U.S. 619, 629-630 (1993). On the ot her hand, mere "trial errors," which usually "occur dur ing the presentation of the case to the jury," are "amenabl e to harmless-error analysis" because they "may . .. be quantitatively assessed in the context of other evi dence presented in order to determine [the effect they ha d on the trial]." Id. at 629 (quoting Fulminante, 499 U.S. a t 307-308).

Violations of the right to counsel may not always b e structural defects which allow a reviewing court to bypass harmless error analysis, see Sullivan v. Louisiana, 508 U.S. 275, 282-283 (1993) (Rehnquist, C.J., concurring), but harmless error analysis should never be applied whe re, as here, "deprivation of the right to counsel affected --and contaminated--the entire criminal proceeding", Satt erwhite v. Texas, 486 U.S. 249, 257 (1988). We are convince d that the absence of counsel at Henderson's suppression h earing, which handicapped Henderson during the remainder of the proceedings against him and especially injured his attorney's ability to argue the facts of his confes sion to the jury at trial, contaminated the entire criminal pro ceeding in this case. See United States v. Cronic, 466 U.S. 64 8, 659

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3. But see United States v. Mills, 895 F.2d 897, 90 4 (2d Cir. 1990) (even though defendant suffered right to counsel violatio n when denied opportunity to make closing argument pro se in hear ing to suppress defendant's incriminating statements, violation was harmless error because, after motion to suppress was denied, gover nment did not introduce statements at trial); Richardson v. Lucas , 741 F.2d 753, 757 (5th Cir. 1984) (even if waiver of counsel was inva lid, error was
harmless).

19n.25 (1984) ("The Court has uniformly found constit utional

error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." ). The effect of this determination is that prejudice is p resumed by

the fact of the constitutional error itself.

E.

The sum of these factors--that the deprivation of c ounsel from Henderson's suppression hearing was a procedur al, structural defect, that Henderson has the right to introduce

facts at trial in an effort to attack the credibili ty of the confession and the impropriety of a harmless error analysis

here--leads us to conclude that the constitutional violation suffered by Henderson will not be corrected absent a new trial.

Moreover, we repeat for emphasis that the conclusio n we reach today does not run counter to the teachings o f the Supreme Court or prior decisions of this court. Fir st, the views stated here do not conflict with the holding or teachings of Jackson v. Denno, which did not addres s the Sixth Amendment Right to Counsel but discussed only a due process violation. The full guarantee of the Si xth Amendment gives the defendant the right to make pro per preparation for trial on the basis of testimony add uced at the suppression hearing, irrespective of the outcom e of the hearing, a constitutional issue that was neither ar gued nor decided by the Court in Jackson. In contrast to the jury in Jackson, which arguably knew too much (and was harm ed by what it knew), the jury in this case had too lit tle information. What is at stake here is the opportuni ty of counsel to utilize at a subsequent trial any inform ation he may have obtained at the suppression hearing. Nor d o we think that our view is contrary to the teachings an d holdings of cases in this court. For example, in Un ited States ex rel. Harvin v. Yeager, 428 F.2d 1354, 135 8-1359 (3d Cir. 1970), United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 560 (3d Cir. 1969), and United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3d Cir. 196 6), we found due process violations where each state priso ner was denied a Jackson hearing. We have already decided t hat

20due process requires a very different analysis than the

correction of a Sixth Amendment deprivation. Moreov er, in Yeager, 428 F.2d at 1359, we conditioned the writ o n a new Jackson hearing in which the state court would deci de whether the prisoner's statement at issue was volun tary and hence admissible, but stated that even if the s tate courts "hold the statement admissible, they may sti ll consider the possibility of granting a new trial, e specially if there is any substantial difference between the evi dence presented at the new hearing and that which had bee n submitted to the jury at the trial."

Second, in no way do we ignore the teachings of Bre cht, 507 U.S. at 637, which mandates that habeas relief be used only "to afford relief to those whom society has`gr ievously wronged' " and not when there is a mere "reasonable possibility" of harm to the petitioner. Here, we ha ve not suggested a mere possibility that the verdict was t ainted by constitutional error; we have found a real constitu tional error--to wit, a violation of the Sixth Amendment R ight to Counsel--one that substantially undermines our conf idence in the reliability of the trial.

Third, we do not disregard the teachings of Waller, 467 U.S. at 50, where the defendant was given a suppres sion hearing that was closed to the public in violation of the Sixth Amendment's guarantee of a public trial. Obvi ously, the violation in that case was easily cured by orde ring a new public suppression hearing. In this case, the S ixth Amendment Right to Counsel will simply not be cured by ordering a new suppression hearing alone because th e effect of the constitutional error spilled over int o the trial

itself.

Therefore, although we possess the power to attach conditions other than according a successful habeas petitioner a new trial, we should not do so here. W e are not prepared to rule as a matter of law that a lawyer w ho represents a defendant at an unsuccessful suppressi on hearing will always be unable, as a result of that hearing, to uncover facts or develop strategy that will ulti mately benefit his or her client at trial. Holding that He nderson is entitled only to a new suppression hearing and not a new trial would be to rule just that. If the confession is not

21suppressed after a new hearing, all that will have been

decided is that there was no illegality in the Commonwealth's obtaining the confession. This rulin g of law would not deny the defendant's right to raise q uestions of fact and credibility to the jury relating to the putative confession. This is the opportunity that the Sixth Amendment guarantees a criminal defendant in a "tri al, by an impartial jury of the State and district wherein the crime

shall have been committed". U.S. Const. amend. VI. It is for

efforts like this that the same Amendment affirms a nd attests his right "to have the Assistance of Counse l for his

defence."

* * * * * * * * *

We have considered all contentions of the parties a nd

have concluded that no further discussion is necess ary.

The judgment of the district court will be reversed and the proceedings remanded to the district court for entry of a writ of habeas corpus, which shall be conditioned upon the Commonwealth affording petitioner a new hearing on his motion to suppress his confession and, if the Commonwealth still wishes to pursue the charges, a new trial that will abide the decision reached followin g the suppression hearing.

22GARTH, Circuit Judge, dissenting:

I agree with the majority of the court that: (1) th e AEDPA does not apply in this case, (2) Henderson has exha usted his claims, (3) the uncounseled suppression hearing 949<!>conducted by the Court of Common Pleas viola ted

Henderson's constitutional rights, and (4) we are t herefore obliged to order the district court to issue the wr it of habeas corpus. I part company with the panel majori ty on the one substantial issue in this appeal: the remed y that

must be afforded Henderson "to correct the constitu tional violation found by the court." Hilton v. Braunskill , 481 U.S. 770, 775 (1987). Because I feel strongly that the m ajority's analysis is deeply flawed on this point, I feel com pelled to dissent and to explain my views in some depth.

The majority of the panel holds that the writ to be issued must grant Henderson a new trial, even though neith er Henderson nor the panel majority claims that the constitutional defect at issue extended beyond the uncounseled suppression hearing to the trial itself . I, on the other hand, relying on Supreme Court and Third Circ uit authority, would hold that the writ should be condi tioned only on the grant of a counseled and therefore constitutional suppression hearing.

I reach this conclusion because the Supreme Court s o held in Jackson v. Denno, 378 U.S. 368 (1964). In J ackson, the Supreme Court ruled 5 to 4 that, because a new suppression hearing could cure the constitutional w rong entirely and minimized the federal intrusion into s tate sovereignty, the habeas writ need only direct that a new suppression hearing be held to determine whether th e confession was voluntary. Thus, a new trial was not required. See id. at 394-95. The Supreme Court has stood by this rule. See, e.g., Sims v. Georgia, 385 U.S. 538, 544 (1966). Our court has applied the rule in several c ases as well, and has in each case limited the habeas relie f to a new suppression hearing to determine whether the confession was in fact voluntary. See, e.g., United States ex rel. Harvin v. Yeager, 428 F.2d 1354, 1358-59 (3d C ir. 1970) (ordering district court to issue writ condit ioned on grant of suppression hearing); United States ex rel

. Montgomery v. Brierley, 414 F.2d 552, 560 (3d Cir. 1969)

23(same); United States ex rel. Dickerson v. Rundle, 363 F.2d

126, 130 (3d Cir. 1966) (same).

Today the majority has veered away from this wellestablished line of cases. In the view of the panel majority, a suppression hearing alone is insufficient because it would not completely cure the constitutional wrong, and b ecause it might unduly interfere with state sovereignty. M aj. Op. at

15-22.

Absent Jackson and its progeny, I would still disag ree with the majority. Awarding Henderson a new trial i n the event that his confession is once again ruled admis sible "provide[s] a totally unjustifiable windfall to a p etitioner who has not been injured by the actions of which[ ] he complains." Koski v. Samaha, 648 F.2d 790, 798 (1st Cir. 1981). After all, Henderson has not challenged the constitutional adequacy of his trial, at which he t estified to the circumstances surrounding his confession. Grant ing Henderson a bonus new trial based on the "possibili ty" that constitutional error might have contributed to his trial even if his confession were properly admitted "is at odd s with the historic meaning of habeas corpus." Brecht v. Abrah amson, 507 U.S. 619, 637 (1993).

Because the Supreme Court has already rejected the majority's argument in Jackson, however, I am compe lled to raise a much more serious objection. I believe that the majority's efforts to finesse and distinguish Jacks on v. Denno is a complete derogation of Supreme Court authority. Supreme Court judgments are always super ior to our own. Because the Supreme Court has already considered and rejected the view that the Constitut ion requires a new trial to be granted in such circumst ances, and our court has faithfully applied these precepts before in several cases, I believe the majority's resolution of this case is contrary not only to good sense, but established law. Its fanciful speculation as to the impact that Henderso n's unconstitutional suppression hearing might have had on his trial has unjustifiably disregarded both state prerogatives and the jurisprudence of both the Supr eme Court and the Third Circuit.

Under Jackson v. Denno, Henderson is constitutional ly entitled to no more than a counseled suppression he aring.

24If his motion to suppress is again denied, that end s it. "Of

course, if the state court, at an evidentiary heari ng, redetermines the facts and decides that [Henderson] 's confession was involuntary, there must be a new tri al on guilt or innocence without the confession's being a dmitted in evidence." Jackson, 378 U.S. at 394. Because the majority has refused to recognize the Supreme Court 's teaching, I dissent from the remedy afforded to Hen derson by the court.

A.

Jackson v. Denno

In Jackson v. Denno, the Supreme Court invalidated a New York criminal procedure by which the voluntarin ess of confessions was submitted to the jury with appropri ate instructions. The habeas petitioner in that case, J ackson, had been charged with murder and had confessed in circumstances indicating that the confession might have been involuntary. Following New York procedure, the state trial judge admitted the confession in evidence at trial.

Jackson then took the stand in his defense and reco unted

the circumstances of his confession. He was then cr ossexamined by the prosecution. Following closing argu ments,

the trial court submitted the issue of the confessi on's voluntariness to the jury. The jury was told that"i f it found the confession involuntary, it was to disregard it entirely, and determine guilt or innocence solely from the ot her evidence in the case; alternatively, if it found th e confession voluntary, it was to determine its truth or reliabi lity and afford it weight accordingly." 378 U.S. at 374-75.

The Supreme Court, per Justice White, invalidated t he procedure on the basis that the New York procedure did not adequately safeguard the defendant's "right to be f ree of a conviction based upon a coerced confession." Id. at 377. The problem, quite simply, was that juries were lik ely to

believe that even coerced confessions were truthful

. Accordingly, jurors were likely to convict defendan ts on the basis of coerced confessions despite the instructio n to disregard such confessions. See Watkins v. Sowders, 449

25U.S. 341, 347 (1981) (discussing Jackson). The Cour t

concluded that the procedure's failure to provide"a reliable

determination of the voluntariness of the confessio n" meant

that it could not "withstand constitutional attack under the

Due Process Clause of the Fourteenth Amendment." Jackson, 378 U.S. at 377.

The Court then turned to the proper remedy, and confronted the issue that divides the panel today. The issue

was this: when a state conviction is based on a con fession that was admitted in evidence pursuant to a constitutionally flawed procedure, does the Constit ution require a federal habeas court to enter a writ cond itioned on an entirely new trial, or merely a writ conditio ned on the state conducting a proper suppression hearing?

A majority of the Supreme Court chose the latter. J ustice White, writing for the majority, agreed that the ha beas petitioner was entitled to "an adequate [suppressio n] hearing productive of reliable results concerning t he

voluntariness of the confession." Id. at 394. Howev er, he wrote, "[i]t does not follow . . . that Jackson is automatically entitled to a complete new trial including a retria l of the issue of guilt or innocence." Id. According to Just ice White:

[I]f at the conclusion of such an evidentiar y hearing . . .

it is determined that Jackson's confession w as voluntarily given, admissible in evidence, a nd properly to be considered by the jury, we see no cons titutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been fou nd guilty. . . . [W]e cannot say that the Constitution requires a new trial if in a soundly conducted collater al proceeding, the confession which was admitte d at the trial is fairly determined to be voluntary.

Id. at 394-96 (emphasis added). If the confession w as in fact voluntary, the Court held, a new trial was not required because the state's procedure would have created"no constitutional prejudice" to the defendant: "If the jury relied on [the voluntary confession], it was entitled to d o so." Id. at 394. "Obviously, the State is free to give Jacks on a new trial if it so chooses," Justice White added,"but f or us to

26impose this requirement before the outcome of the n ew

hearing on voluntariness is known would not comport with the interests of sound judicial administration and the proper relationship between federal and state courts." Id. at 395 (emphasis added).

In separate dissents, Justice Black and Justice Cla rk each attacked the majority's conclusion that a new suppression hearing was sufficient to correct the constitutional violation. According to Justice Clar k, a suppression hearing alone "d[id] not cure the error which the Court finds present." Id. at 426 (Clark, J., di ssenting). Justice Black agreed, deeming the court's remedy a "fragmentizing" device that had improperly succeede d in "sustaining convictions and denying defendants a ne w trial where all the facts are heard together." Id. at 410 (Black, J. dissenting).

B.

Henderson v. Frank

The habeas petitioner in this case, John Henderson, was also charged with a crime and confessed in circumst ances that raised the possibility that the confession was coerced. Like Jackson, Henderson was unconstitutionally deni ed "an adequate evidentiary hearing productive of reliable results concerning the voluntariness of his confession." Ja ckson, 378 U.S. at 394. In Henderson's case, his hearing w as inadequate because his right to the assistance of c ounsel, a constitutional right "essential to a fair trial," Gideon v. Wainright, 372 U.S. 335, 342 (1963), was denied. As was the case with Jackson, Henderson's confession was nonetheless admitted in evidence at trial, where He nderson was represented by counsel.1 Like Jackson, Henderso n took the stand in his own defense at trial and explained to the jury that his confession was coerced.2 Like Jackso n,

___________________________________________________ ______________

1. As noted, Henderson has not challenged the const itutionality of his

trial.

2. Henderson told the jury that the officers handcu ffed him to a chair, threatened him, told him what to write down in the confession, and failed to read Henderson his Miranda rights. App. 3 03-06 (trial transcript).

27Henderson was then cross-examined by the prosecutio n.

App. 316. As was the case in Jackson's trial, the t rial judge in Henderson's case instructed the jury "that you m ust disregard the confession or the statement unless yo u are satisfied by a preponderance of the evidence . . . that the defendant made the statement voluntarily. . . . If you find that the defendant made the statement voluntarily,

.. . then you may consider it as evidence against him." App. 341-42. Like Jackson, Henderson was found guilty.

The majority of this court has properly concluded t hat Henderson's constitutional right to the assistance of counsel was violated when he was permitted to proce ed in his suppression hearing pro se without adequate wai ver of counsel. See Maj. Op. 9-12. In holding that the rig ht to the

assistance of counsel was so fundamental to a fair trial that it was guaranteed to state defendants by the Due Pr ocess clause of the Fourteenth Amendment, the Supreme Cou rt in Gideon described the intolerable unreliability o f uncounseled proceedings:

If charged with crime, [the layman] is incap able, generally, of determining for himself whethe r the indictment is good or bad. He is unfamiliar with the

rules of evidence. Left without the aid of c ounsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evid ence irrelevant to the issue or otherwise inadmis sible. He lacks both the skill and knowledge adequatel y to prepare his defense, even though he have a p erfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of con viction

because he does not know how to establish hi s innocence.

Gideon, 372 U.S. at 345 (quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 64 (1932)). The panel majority properly follows our precedent in determining that the trial judge's failure to ensure that Henderson adequately waived his right to counsel violated those same rights, an d permitted Henderson to engage in a critical suppres sion hearing without "the skill and knowledge adequately to prepare his defense." Id. That failure denied Hende rson that

28"to which he is constitutionally entitled--an adequ ate

evidentiary hearing productive of reliable results concerning the voluntariness of his confession," Jackson, 378 U.S. at

394--much like Jackson.

Where the majority diverges from precedent is in it s determination of the proper remedy. Instead of foll owing Justice White's majority opinion in Jackson v. Denn o, the panel majority sides with the dissenting Justices i n that case and rules that the Constitution requires our c ourt to order a writ conditioned on the grant of an entirel y new trial, rather a writ conditioned on the grant of a suppression hearing alone. The panel majority offer s two reasons for its conclusion, both of which were cate gorically rejected by the Supreme Court in Jackson.

First, the panel majority adopts Justice Clark's di ssent and rules that a new trial is required because "mer ely to have the trial judge hold a hearing on the admissib ility of

the confession . . . does not cure the error which the Court finds present." Jackson, 378 U.S. at 426 (Clark, J.

, dissenting). The panel majority reasons that if a p roper (counseled) suppression hearing had been held, it m ight have had "repercussions in plea bargaining, discove ry and trial strategy that would not be cured by a new sup pression hearing alone." Maj. Op. at 17. "[H]ad a skilled at torney represented Henderson at the suppression hearing," the majority speculates, "he or she would have confront ed the witnesses against Henderson and studied the Commonwealth's trial strategy, in the hopes of prep aring a

better attack on the factual environment of the con fession at a trial by jury." Maj. Op. at 18. Accordingly,"t he constitutional violation suffered by Henderson will not be corrected absent a new trial." Maj. Op. at 20.

Whatever merit one may find in the majority's view- - and I, for one, find none-- it should be enough for us as an inferior court that this position was litigated bef ore the Supreme Court, and that it lost. The Supreme Court explicitly rejected the view that "the constitution al violation suffered by [the petitioner] will not be corrected absent a new trial," Maj. Op. at 20, and instead adopted the view

that when the voluntariness of a defendant's confes sion is determined in violation of the defendant's rights," there is

29no constitutional prejudice . . . if the confession is now

properly found to be voluntary and therefore admiss ible. If the jury relied upon it, it was entitled to do so." Jackson,

378 U.S. at 394.

In so ruling, the Supreme Court rejected the panel majority's view that a suppression hearing alone wa s insufficient to cure the wrong because the petition er's position at trial might have been stronger had ther e been a proper suppression hearing before the trial. Such`w hat if 's do not rise to the level of "constitutional prejudi ce," the Court ruled, and thus are inappropriate bases for h abeas relief. Id. This view is entirely consistent with t he remainder of the Court's habeas jurisprudence, which has stre ssed that "granting habeas relief merely because there i s a `reasonable possibility' that [the verdict was tain ted by constitutional error] is at odds with the historic meaning of habeas corpus." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal citations omitted). See also Baref oot v. Estelle, 463 U.S. 880, 887 (1983) ("The role of fed eral habeas proceedings . . . is secondary and limited." ). In other words, fashioning habeas relief based on unsupporte d speculation as to how a constitutional suppression hearing might have affected the petitioner's trial strategy would improperly "provide a totally unjustifiable windfal l to a petitioner who has not been injured by the actions of which [the petitioner] complains." Koski v. Samaha, 648 F .2d 790, 798 (1st Cir. 1981).3

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3. The continuing viability of Jackson's conclusion that a constitutionally proper suppression hearing cures the constitutional wrong when the original hearing was conducted in violation of the defendant's rights is illustrated by the Supreme Court's unanimous opinio n in Waller v. Georgia, 467 U.S. 39, 50 (1984). In Waller, the Cou rt held that a suppression hearing that (pursuant to a motion by t he state) was closed to the public violated the defendant's Sixth and Fo urteenth Amendment rights to a public trial. On direct review, the Sup reme Court reversed the conviction, but concluded that a new trial was not required. Justice Powell wrote that "the remedy should be appropriate to the violation. If, after a new suppression hearing, essentially the sa me evidence is suppressed, a new trial presumably would be a windf all for the defendant, and not in the public interest." Id. at 50 (citing Jackson, 378 U.S. at 394-96). A new trial was necessary "only if a [constitutionally

30Second, the majority suggests still another reason for its

view that a new trial is required. According to the panel majority, we should be concerned that ordering a suppression hearing alone might improperly exceed a federal court's authority by improperly "revis[ing] the state court judgment." Fay v. Noia, 372 U.S. 391, 431 (19 63). See also Barry v. Brower, 864 F.2d 295, 300 (3d Cir . 1988) ("Both the historic nature of the writ and principl es of federalism preclude a federal court's direct interf erence with a state court's conduct of state litigation.") Maj. Op. at 14, 15. Although the majority never quite fleshes out h ow this could be the case, the idea that limiting the remed y to a suppression hearing might interfere with the state' s sovereignty is astounding in light of Jackson and our own precedents.4 In Jackson, the Court held that it was limited to ordering a suppression hearing because ordering a full trial would interfere with the state's sovereignty. See Jackson, 378 U.S. at 395 ("[F]or us to impose th[e] requirement [of a new trial] . . . would not compor t with the proper relationship between federal and state court s."); see also id. at 427 (Harlan, J., dissenting) (describin g the majority's limited remedy as its "one bow to federa lism"). Thus, the majority has suggested that it might be

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proper] suppression hearing results in the suppress ion of material evidence not suppressed at the first trial, or in s ome other material change in the positions of the parties." Id.

The fact that the Court concluded that a new suppre ssion hearing cured the constitutional wrong on direct review in Waller is especially strong evidence that a new trial is an inappropriat e remedy here. The Supreme Court has often stressed that the writ of h abeas corpus is an extraordinary remedy, and that "an error that may j ustify reversal on direct appeal will not necessarily support a collat eral attack on a final judgment." Brecht, 507 U.S. at 634. Given the much freer hand courts have in remedying constitutional wrongs on direct r eview, the fact that

the unanimous court believed that a new trial was u nnecessary on direct review in Waller strongly reinforces the conclusion in Jackson that it is unnecessary on habeas review.

4. See United States ex rel. Harvin v. Yeager , 428 F.2d 1354, 1358-59 (3d Cir. 1970); United States ex rel. Montgomery v. Bri erley, 414 F.2d 552, 560 (3d Cir. 1969); United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3d Cir. 1966).

31constitutionally forbidden to do what the Supreme C ourt

ruled it was constitutionally required to do-- cond ition the writ on the grant of a suppression hearing only. 5 I am at a

loss to understand how this could be true.

C.

Distinguishing Jackson

The panel majority attempts to distinguish Jackson v. Denno by reeling off a list of "factors" that it cl aims makes Henderson's case "very different"-- even "completel y different"-- from Jackson. The "sum of these factor s," the majority proclaims, makes Jackson distinguishable a nd a new trial necessary to cure the constitutional wron g. Maj. Op. at 20. An examination of these "factors" shows that they each applied with equal force to Jackson v. De nno, and thus fail to provide any possible basis from which Jackson can be distinguished.

1.

The weakest of the majority's arguments that Jackso n is distinguishable is that the denial of a Sixth Amend ment right to counsel is generally considered a structur al defect rather than a trial error under the framework provi ded by Arizona v. Fulminante, 499 U.S. 279 (1991).

I completely agree that the uncounseled suppression hearing suffered by Henderson was a structural defe ct in his trial. The problem is that the constitutional e rror in Jackson v. Denno was also a structural defect, for exactly the same reason: without conducting a new hearing, there was no way to determine how heavily constitutional error weighed into the jury's verdict. See Brecht, 507 U. S. at 629. In fact, in the two cases in which the Supreme Cour t

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5. The patent weakness of the majority's suggestion that a limited remedy might improperly "revise the state court jud gment," Fay v. Noia, 372 U.S. 391, 431 (1963), is further illustrated by the fact that Justice Brennan, the author of Fay v. Noia, provided the fi fth vote for the majority in Jackson one year later.

32considered unconstitutional suppression proceedings and

ruled that a new trial was not required to remedy t he wrong, the errors were both structural defects. See Fulminante, 499 U.S. at 310 (noting that the error in Waller v. Georgia, 467 U.S. 39, 50 (1984)6 was a structur al defect that "affect[ed] the framework within the trial pro ceeds, rather than simply an error in the trial process it self ").7

The error in the majority's analysis is that Fulmin ante's "structural defect"/ "trial error" doctrine is used exclusively to gauge whether a reviewing court needs to grant r elief at all following a constitutional error. If the error is a structural defect, the court must grant relief; if it is a trial error, the court need not grant relief unless the a dmission of the tainted evidence "had substantial and injuri ous effect or influence in determining the jury's verdict." Br echt, 507 U.S. at 631 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946) (habeas)). Once the court has determined that it must grant relief, however, and turns to the separa te question of what relief must be granted, the"struct ural defect"/"trial error" distinction drops out of the analysis and becomes completely irrelevant. Accordingly, the panel majority's emphasis on the fact that the constituti onal wrong is a structural defect answers a question tha t has not been asked. It provides no guidance or help in determining what remedy is required to cure the

constitutional defect.

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6. Discussed in note 3, supra.

7. Because Jackson was decided before the Supreme C ourt first introduced the harmless error doctrine in Chapman v . California, 386 U.S. 18 (1967), and nearly a quarter century before Fulminante

formalized the distinction between structural defec ts and trial errors,

the Jackson opinion could not actually state that its e rror was a structural defect. However, we can be confident that the error in Jackson was a structural defect because 1) the Fulminante court s pecifically held that a nearly identical error in Waller was a structural d efect, see Fulminante, 499 U.S. at 310, and 2) the error in Jackson was no t something that could be "quantitatively assessed in the context of other evidence presented in order to determine the effect it had o n the trial." Brecht,

507 U.S. at 629.

Notably, the majority has not made any argument tha t the error in

Jackson was not a structural defect.

332.

The majority also argues that this case is differen t from

Jackson because the defect in Jackson was not the S ixth Amendment right to counsel present in this case, bu t rather a determination that "a conviction based upo n a coerced confession . . . cannot withstand constitut ional

attack under the Due Process Clause of the Fourteen th Amendment." Maj. Op. at 17 (quoting Jackson, 378 U. S. at 377) (ellipsis in majority opinion). This, we are t old, is a "completely different issue . . . that requires a c ompletely different analysis." Id.

The flaw in this argument begins with the majority' s gross misuse of ellipses to mischaracterize the hol ding of Jackson. The effect of the selective quotation is t o foster the impression that the issue in Jackson was whether a confession was coerced, rather than, as here, wheth er a reliable evidentiary procedure was followed so that the defendant's rights to a fair trial were upheld. The entire sentence from which the majority selectively quotes is as

follows:

In our view, the New York procedure employed in this

case did not afford a reliable determination of the

voluntariness of the confession offered in e vidence at the trial, did not adequately protect Jackso n's right to be free of a conviction based upon a coerced confession

and therefore cannot withstand constitutiona l attack

under the Due Process Clause of the Fourteen th

Amendment.

Jackson, 378 U.S. at 377 (emphasis added). As this quotation shows, the constitutional error in Jackso n was not that Jackson's "conviction [was] based upon a c oerced confession," as the majority states, but that the p rocedure

"did not afford a reliable determination of the vol untariness

of the confession" so that there was a substantial risk that Jackson's conviction was based upon a coerced profe ssion.

As a matter of substance, the constitutional wrongs in the two cases were the same: the petitioners' confe ssions were determined in unreliable proceedings. Granted, the sources of the unreliability are different: in Jack son, the concern was that jurors would be unable to follow t he

34judge's instructions, whereas here, our concern is that a

defendant proceeding without a lawyer would be unab le to

defend his case. The substance of the constitutiona l wrongs is the same, however: in both cases, the voluntarin ess of the confessions was the issue. Because the proceedi ngs in

which the voluntariness of the confessions was dete rmined were unfair and unreliable, we just cannot be sure that the petitioners' convictions were based on voluntary

confessions.

Finally, the constitutional wrongs are identical as a matter of form. Both wrongs are violations of the Fourteenth Amendment's Due Process Clause, which guarantees to state criminal defendants those feder al guarantees listed in the Bill of Rights that are "f undamental and essential to a fair trial." Gideon, 372 U.S. at 340. The majority concedes that this was the wrong identifie d in Jackson, but then tries to pin the constitutional v iolation here on the Sixth Amendment, rather than the Fourte enth. Maj. Op. at 16-17, 21. However, Sixth Amendment guarantees apply to state proceedings only insofar as the

Due Process clause of the Fourteenth Amendment incl udes them. See Gideon, 372 U.S. at 345. Therefore, this alleged

difference is an illusion.

3.

The third and final "factor" that the majority list s as a ground for distinguishing Jackson is that the denia l of counsel at Henderson's suppression hearing "may hav e had repercussions in plea bargaining, discovery, and tr ial strategy." Maj. Op. at 17. The participation of a s killed attorney at the suppression hearing "would have bee n beneficial to Henderson's defense," we are told, be cause it might have revealed weaknesses in the Commonwealth' s case that could have only been uncovered in a pre-t rial proceeding. Maj. Op. at 17. Even if the judge ruled that the confession was inadmissible, "a skilled attorney . . . would have confronted the witnesses against Henderson and studied the Commonwealth's trial strategy, in the h opes of preparing a better attack on the factual environmen t of the confession at a trial by jury." Id. at 18. This con trasts with Jackson, we are instructed, because in Jackson the only

35harm suffered by the habeas petitioner was the abse nce of

"an opportunity to have his confession suppressed-- the legal outcome of that hearing." Id. at 17. Thus, th e majority claims that the jury in Henderson's trial "had too little information," whereas the jury in Jackson"arguably knew

too much." Id. at 20.

Here the majority has manufactured a difference bet ween the two cases by comparing apples and oranges: the possibility of actual prejudice in Henderson's case , as compared with the reality of constitutional prejudi ce in Jackson. If we apply the same scrutiny to both case s, however, we see that the reason stated for distingu ishing Henderson's case from Jackson actually applies with equal force (or lack thereof) to Jackson's case.

In terms of actual prejudice, both Jackson and Henderson suffered a missed opportunity to "confron t[ ] the witnesses against [them] and [to] stud[y] the Commonwealth's trial strategy [before trial], in th e hopes of preparing a better attack on the factual environmen t of the confession at a trial by jury." Id. at 18. Neither petitioner was given an adequate opportunity to probe the prosecution's case against him until the trial itse lf, where all attempts to challenge the voluntariness of the confessions failed. If anything, Henderson fared substantially better on this count than did Jackson : at least Henderson's lawyer had available to him at trial a transcript of Henderson's uncounseled suppression hearing. In Henderson's case, this benefit was subs tantial, because Henderson managed to delve into the circumstances of his confession in substantially mo re depth than did Henderson's counsel at trial. In fact, the transcript of the uncounseled suppression hearing runs 54 page s; Henderson's entire defense, by comparison, is conta ined on only 21 pages.8

In contrast, Jackson had no opportunity whatsoever to probe the prosecution's case before trial. If the m ajority is right that such missed opportunities to gain tactic al

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8. Compare App. 158-211 (uncounseled suppression he aring) with App. 298-319 (trial). Of course, the adequacy of Henders on's trial counsel is not at issue in this petition.

36advantage are constitutionally relevant, then the c ase in

which the absence of such opportunities most cries out for constitutional relief is Jackson's, not Henderson's . Cf. Jackson, 378 U.S. at 426 (Clark, J., dissenting) .

But of course the majority is not right. Jackson re jected the view that such possibilities were relevant, and instead adopted the view that there was "no constitutional prejudice" so long as a subsequent suppression hear ing later revealed that the confession relied upon by t he jury was properly before it. Id. at 394. In distinguishi ng between actual prejudice and constitutional prejudice, the Court reasonably tailored the constitutional remedy to th e constitutional wrong. Because defendants do not hav e a constitutional right to an opportunity to gain a ta ctical advantage in pre-trial proceedings, the denial of s uch opportunities could not create constitutional preju dice that could be a relevant consideration in fashioning hab eas relief. Applying this same standard to Henderson's case leads to the ineluctable conclusion that there coul d be no constitutional prejudice to Henderson if a subseque nt suppression hearing later reveals that the confessi on relied upon by the jury was properly before it.

D.

This Court's conclusion that a new trial is require d if a counseled suppression hearing reveals that Henderso n's confession was properly admitted at trial is contra ry to reason and directly clashes with the Supreme Court' s holding in Jackson v. Denno. I therefore respectful ly

dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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