1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-7-1998

Henderson v. Frank

Precedential or Non-Precedential:

Docket 97-3041

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Recommended Citation

"Henderson v. Frank" (1998). 1998 Decisions. Paper 188.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/188
Filed 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 APPELLANT 
 David 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 before a 

Commonwealth of Pennsylvania district justice, John K. 

Henderson signed and filed a standard waiver of counsel 

form. He then petitioned the state court to allow him to 

proceed pro se, which was allowed without a recorded 

colloquy between Henderson and the judge regarding the 

dangers of self-representation. Henderson was not 

represented by counsel at a subsequent pretrial hearing 

where he unsuccessfully moved to suppress his confession. 

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 district court 

for a writ of habeas corpus under 28 U.S.C. S 2254, alleging 

that his invalid waiver of counsel and subsequent lack 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: First, 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, constitute a 

knowing, voluntary and intelligent waiver of his right to 

counsel at a subsequent suspension hearing? Second, if 

this did not satisfy Sixth Amendment waiver requirements 

and we grant a writ of habeas corpus, should the grant of 

the writ be conditioned on his receiving a new trial or 

merely a new suppression hearing? Before meeting these 

issues head-on, we must first decide whether his habeas 

 2 
petition was time-barred under provisions of the 

Antiterrorism and Effective Death Penalty Act of 1996 

("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and

whether he exhausted state remedies before filing the 

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 Appeal was 

timely filed. Rule 4, Federal Rules of Appellate Procedure. 

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. Once in 

police custody, Henderson confessed to the burglary of the 

clothing store and also to the attempted burglary of a 

hardware store a few months earlier. He was subsequently 

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 represented 

at the hearing by another public defender, Elizabeth Haque. 

At this hearing, Henderson submitted a form entitled 

"Waiver of Counsel" to the district justice. The standard 

form was filled out with Henderson's name, the charges of 

"Burglary, Criminal conspiracy, Criminal attempt, Criminal 

mischief & Criminal Conspiracy" and contains Henderson's 

signature below a series of pre-printed statements,

including: 

 I, John Henderson , have been informed that I 

 have the right to have a lawyer represent me, and if I 

 cannot afford one, one will be afforded to me without 

 cost. . . . 

 I, John Henderson , am a ware of the permissible 

 range of sentences and/or fines for the offenses 

 charged. . . . 

 3 
 I knowingly, voluntarily and intelligently waive these 

 rights and choose to act as my own lawyer at this 

 hearing/trial. 

App. at 33. The district justice signed the form under 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 continued 

to serve as court-appointed stand-by counsel for Henderson 

after this point. Henderson next filed a pro se Motion to 

Suppress his confession, and after a suppression hearing 

on September 25 at which he represented himself, and at 

which Ms. Haque's presence is not apparent on the record, 

his Motion was denied. The court then appointed new

counsel to represent Henderson at trial and the jury 

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 Court, 

alleging, inter alia, that he was denied the effective 

assistance of counsel at the suppression hearing. His 

conviction was affirmed and the Supreme Court of 

Pennsylvania denied his Petition for Allowance of Appeal, 

which raised a violation of "the right to counsel." The Court 

of Common Pleas denied his Pennsylvania Post Conviction 

Relief Act Petition, 42 Pa. Cons. Stat. SS 9541-9546, which 

also raised the deprivation of counsel issue. 

Henderson gave his Habeas Corpus Petition, which was 

addressed to the federal district court in Pittsburgh and 

dated April 16, 1996, to Huntingdon SCI prison officials for 

delivery. The record does not disclose the precise date that 

his Petition was handed to the prison officials. The record 

does reveal that the district court clerk filed the Petition on 

April 25, one day after the effective date of the AEDPA 

amendments to the federal habeas corpus statute. 

Our review of whether Henderson has exhausted his 

state remedies is plenary. See Doctor v. Walters, 96 F.3d 

675, 678 (3d Cir. 1996). Whether the AEDPA applies to this 

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

AEDPA's April 24, 1996 enactment date, is a jurisdictional 

question subject to plenary review. See In re Flanagan, 999 

F.2d 753, 756 (3d Cir. 1993). If we conclude that the 

AEDPA applies to Henderson's petition, then we may 

reverse the state court's denial of his Sixth Amendment 

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 United 

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, which 

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, running from 

"the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for 

seeking such review", S 2244(d)(1)(A), and (2) it imposes a 

new, limited standard of review which restricts federal 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. First, 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. 2059, 2063 

(1997). We reach this conclusion because we agree with 

Henderson's claim that he handed over his petition, which 

was dated April 16, 1996, to prison officials before 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 

 5 
of a notice of appeal by a pro se prisoner to prison officials 

is tantamount to filing with the clerk of court--apply 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 accept 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 hands of the 

prison officials until the day before, to-wit April 24; that in 

a herculean burst of bureaucratic efficiency and postal 

service it was processed by the various levels of prison 

administration and delivered to the rural post office in 

Huntingdon, Pennsylvania that same day; that in lightning 

speed, the U.S. Postal Service carried it from Central 

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 Pittsburgh by 

the next morning. If the Commonwealth had introduced 

evidence to support this ambitious scenario, it might 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 the 

pace of U.S. Mail delivery, now described as "snail mail" by 

e-mail aficionados, we must not forget as judges. We will 

not accept the Commonwealth's theory that we should

employ a kind of judicial notice to accept its theory. 

We recognize that "prison authorities are in a position to 

easily show when a document was received or mailed under 

established prison procedures for recording the date and 

time at which papers are received by prison officials in the 

prison's mail room." Flanagan, 999 F.3d at 757 (citing 

Houston, 108 S. Ct. at 2384). Thus, the Commonwealth 

should have been expected to support its untimeliness 

argument with prison logs documenting that Henderson 

deposited his Petition with prison authorities on April 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 delivered to 

prison authorities some time before April 24, and therefore 

should be deemed filed before the AEDPA effective date. 

 6 
Because 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 Petition 

had been delivered to prison authorities on April 24 and not 

before. It not only failed to meet its burden, it did not even 

see fit to raise this issue in the district court. 

III. 

A federal court may not grant a writ of habeas corpus 

unless (1) "the applicant has exhausted the remedies 

available in the courts of the State", (2) no such state 

remedy is available or (3) available remedies are ineffective 

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 Pennsylvania 

courts all claims he will make in his Habeas Petition, in 

order to give the state courts "the `opportunity to pass upon 

and correct alleged violations of [his] federal rights.' " See 

Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) 

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). 

Henderson raised one issue in his Petition to the district 

court: "Petitioner did not knowingly and intelligently waive 

his Sixth Amendment Right to Counsel." For Henderson to 

have "fairly presented" this issue to the Pennsylvania 

courts, his "state court pleadings and briefs must 

demonstrate that he has presented the legal theory and 

supporting facts asserted in the federal habeas petition in 

such a manner that the claims raised in the state courts 

are substantially equivalent to those asserted in federal 

court." See Doctor, 96 F.3d at 678 (quotation omitted). 

The record clearly demonstrates that Henderson, 

following his conviction, "fairly presented" before each level 

of state court hierarchy the issue of the effectiveness of his 

waiver of counsel on his subsequent pro se representation 

at the suppression hearing. App. at 56, 61 (Superior Court 

_________________________________________________________________ 

1. Even if the AEDPA applied here, S 2244(d) would not time-bar 

Henderson's Petition because, as this Court recently 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. 

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

Pennsylvania); id. at 85 (Common Pleas Court of Greene 

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 remedies as to 

the issue of his right to counsel at the suppression hearing, 

albeit under the guise of an assertion of ineffective 

assistance of counsel." App. at 23. 

Notwithstanding the district court's rather detailed 

analysis of the nuances of exhaustion--it construed

Henderson's Petition as raising two Sixth Amendment

violations, one at the preliminary hearing and another 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 misread 

habeas petitions in order to split single claims and conduct 

separate exhaustion analyses for each. Engle v. Isaac, 456 

U.S. 107, 124 n.25 (1982) ("A creative appellate judge could 

almost always distill from these allegations an unexhausted 

. . . claim."). We read the record to indicate that Henderson 

was without counsel at only one critical stage of his 

criminal proceeding--the suppression hearing. His right to 

counsel at this juncture certainly could have been waived, 

but it is the government's burden to demonstrate that such 

a waiver was voluntary, knowing and intelligent. See 

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 Henderson 

at the preliminary hearing and his motion to proceed pro se 

filed before the suppression hearing--does not transform 

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 Petition is 

answered by Henderson's Habeas Petition itself, which 

states as the single, simple ground for review,"Petitioner 

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 exhaustion 

purposes--right to counsel at the preliminary hearing and 

 8 
right to counsel at the suppression hearing--because 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, 941 

(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 his 

"single constitutional issue" that "[t]he legal claim of invalid 

waiver of counsel at the preliminary hearing is precisely the 

same as invalid waiver of counsel at the suppression 

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 inartfully 

 drafted, it was the Commonwealth, not the petitioner, 

 that construed it as containing more than one claim. 

 We find the record below reveals that [Henderson] 

 clarified any ambiguity with respect to the Petition for 

 a Writ of Habeas Corpus and adequately informed the 

 court that the Petition contained only one issue. 

Accordingly, we conclude that Henderson properly 

exhausted the issue of his right to counsel at the 

suppression hearing. We turn, then, to the merits of his 

Petition.2 

IV. 

The Sixth Amendment provides, inter alia:"In all criminal 

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

the Assistance of Counsel for his defense." U.S. Const. 

amend. VI; see Bey, 124 F.3d at 528. The right to counsel 

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 AEDPA does not apply 

to this Petition, we exercise plenary review over the state court 

judgment. 

See Bey, 124 F.3d at 528. 

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

358 n.5 (quoting United States v. Wade, 388 U.S. 218, 224 

(1967)). 

Concomitant with the right to be defended by counsel 

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 Henderson 

validly waived his right to counsel, the Commonwealth 

bears the heavy burden of proving that the waiver was 

voluntary, knowing and intelligent. See Brewer, 430 U.S. at 

403. The district court determined that Henderson validly 

waived his right to counsel, relying on (1) the waiver 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 the 

Court of Common Pleas before the suppression hearing. 

We conclude, however, that these documents alone--the 

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 an 

intentional relinquishment or abandonment of a known 

right or privilege." App. at 33, 35; see Brewer, 430 U.S. at 

403-404. 

To ensure that an accused is aware of the pitfalls 

possible in self-representation, "the district court should 

advise him in unequivocal terms both of the technical 

problems he may encounter in acting as his own attorney 

and of the risks he takes if his defense efforts are 

unsuccessful." See United States v. Welty, 674 F.2d 185, 

188 (3d Cir. 1982). As a matter of constitutional law, we 

have imposed a clear and unambiguous obligation upon 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 wishes to 

proceed pro se is not enough. Signing a pre-printed form is 

not enough. See Piankhy v. Cuyler, 703 F.2d 728, 731 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 state judge 

in a state criminal proceeding, the trial judge must conduct 

a colloquy with the accused to determine that the waiver is 

 10 
not only voluntary, but also knowing and intelligent. 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 defenses 

 to the charges and circumstances in mitigation thereof, 

 and all other facts essential to a broad understanding 

 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 counsel 

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 knowledgeable 

about his decision, even when the colloquy skips just one 

of the above factors. See Welty, 674 F.2d at 189 (no waiver 

where court merely informed defendant that selfrepresentation is "inadvisable") (quoting Von Moltke, 332 

U.S. at 724 (plurality opinion)); see also United States v. 

Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996) (no waiver 

notwithstanding trial judge's detailed colloquy with 

defendant because judge failed to state that he was

authorized to impose greater sentence than that imposed in 

defendant's first trial). 

In this case, neither the waiver of counsel form nor the 

petition to proceed pro se explained, for example, what 

sentences or fines Henderson could face if convicted, nor 

did they demonstrate Henderson's understanding of"all 

other facts essential to a broad understanding of the whole 

matter." See Welty, 674 F.2d at 189 (quoting Von Moltke, 

332 U.S. at 724 (plurality opinion)); see also United States 

v. Salemo, 61 F.3d 214, 222 (3d Cir. 1995) (invalid waiver 

where no recorded colloquy, notwithstanding trial judge's 

apparent familiarity with defendant's understanding of legal 

issues in case). As a plurality of the Supreme Court 

described in Von Moltke, 332 U.S. at 724,"a mere routine 

inquiry--the asking of several standard questions followed 

 11 
by the signing of a standard written waiver of counsel--may 

leave a judge entirely unaware of the facts essential to an 

informed decision that an accused has executed a valid 

waiver of his right to counsel." A generic waiver form such 

as Henderson's cannot replace the verbal colloquy between 

judge and defendant, set forth for the record, to satisfy the 

judge's obligation to ensure a waiver is made voluntarily, 

knowingly and intelligently. See Singer v. Court of Common 

Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989). We therefore 

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 should be 

conditioned upon the Commonwealth affording Henderson 

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 the outcome 

of the suppression hearing. To determine what conditions 

should be attached to the grant of the writ, it isfirst 

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 authority 

under the circumstances of this case. We begin our 

analysis by addressing the precise nature of federal court 

habeas corpus jurisdiction over petitions emanating from 

criminal convictions in the state court system. 

A. 

Let there be no misunderstanding that federal habeas 

corpus review of state criminal convictions is an anomaly in 

the jurisprudence of res judicata. It is only in the 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 

 12 
system in a civil action in a proceeding brought under 42 

U.S.C. S 1983, the Supreme Court has held that Congress 

did not intend "to allow relitigation of federal issues decided 

after a full and fair hearing in a state court simply because 

the state court's decision may have been erroneous." Allen 

v. McCurry, 449 U.S. 90, 101 (1980). Although the writ 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), Justice 

Frankfurter, speaking for the majority, wrote, "the prior 

State determination of a claim under the United States 

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 not 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 of another 

jurisdiction on federal constitutional issues. It is not res 

judicata." Id. at 458. 

If there was difficulty trying to reconcile the philosophy of 

the Brown v. Allen Court in 1953 with the Allen v. McCurry 

Court in 1980, Justice Brennan, speaking for the Court in 

1963 in Fay v. Noia, 372 U.S. 391, 430 (1963), carved out 

a sound jurisdictional basis for the present concept of 

federal habeas corpus, stating that, "while our appellate 

function is concerned only with the judgments or decrees of 

state courts, the habeas corpus jurisdiction of the lower 

federal courts is not so confined. The jurisdictional 

prerequisite is not the judgment of a state court but 

detention simpliciter." Therein Justice Brennan emphasized 

that "[h]abeas lies to enforce the right of personal liberty; 

when that right is denied and a person confined, the federal 

court has the power to release him. Indeed, it has no other 

power; it cannot revise the state court judgment; it 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 ability to 

"revise the state court judgment." It would seem that 

federal habeas power is limited, first, to a determination of 

whether there has been an improper detention by virtue of 

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

illegal detention, to ordering the immediate release 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 from a 

federal conviction, where upon vacating the judgment this 

Court would have unlimited power to attach conditions to 

the criminal proceedings on remand. See, e.g., United 

States v. Gravatt, 868 F.2d 585, 591 (3d Cir. 1989). Rather, 

this is federal habeas corpus relating to a state conviction. 

B. 

Our relief must thus be fitted between two principles 

underlying habeas corpus jurisprudence. The first is found 

in the habeas statute itself: "The court shall summarily 

hear and determine the facts, and dispose of the matter as 

law and justice require." 28 U.S.C. S 2243. The second is 

that "[b]oth the historic nature of the writ and principles of 

federalism preclude a federal court's direct interference with 

a state court's conduct of state litigation." See Barry v. 

Brower, 864 F.2d 295, 300 (3d Cir. 1988). Within the 

strictures of these principles, federal courts have most often 

granted the relief in habeas cases that has required the 

least intervention into the state criminal process. Courts 

usually condition the issuance of a writ, which releases 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., Brewer, 430 

U.S. at 407 n.13. 

It is true that under certain circumstances, federal courts 

have conditioned the issuance of a writ on the state's 

conducting proceedings narrower than a full retrial. See 

Jackson v. Denno, 378 U.S. 368, 394 (1964) (conditioning 

writ on state court conducting evidentiary hearing to decide 

whether petitioner's confession was voluntary or coerced 

and thus inadmissible at trial, a decision which the state 

court had left for the jury to make in contravention of the 

petitioner's due process rights in the state trial; further 

ordering that if the state court decides the confession was 

coerced, then a new trial would be necessary to avoid the 

 14 
writ). However, such cases make clear that conditional 

writs must be tailored to ensure that all constitutional 

defects will be cured by the satisfaction of that condition. 

The Supreme Court "has repeatedly stated that federal 

courts may delay the release of a successful habeas

petitioner in order to provide the State an opportunity to 

correct the constitutional violation found by the court." Hilton 

v. Braunskill, 481 U.S. 770, 775 (1987) (emphasis added). 

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 examine 

the nature of the constitutional violation found here in 

order to be sure that simply conducting the new hearing 

will completely eradicate the violation, and to be sure we do 

not "revise the state court judgment." See Faye, 372 U.S. at 

431. 

C. 

The right to the assistance of counsel granted in the 

Sixth Amendment, including the "correlative right to 

dispense with a lawyer's help", Adams v. United States ex 

rel. McCann, 317 U.S. 269, 279 (1942), is "one of the 

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, Gideon v. 

Wainwright, 372 U.S. 335, 345 (1963)], in all criminal 

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 Henderson been 

deprived of his right to counsel at the trial itself, certainly 

we would require no less than a new trial to prevent a writ 

from issuing. We must decide, however, whether the 

deprivation of counsel at Henderson's suppression cast 

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 proceedings 

could be corrected by issuing a writ conditioned on

something less than a whole trial--a hearing, for example. 

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

unconstitutional a state criminal trial procedure in which a 

judge was not given the discretion to exclude a defendant's 

confession if a "fair question" existed about its 

voluntariness. Giving the jury the primary responsibility to 

first determine whether the confession was voluntary, and 

second, to discredit involuntary confessions which the jury 

has at that point already heard, violated due process. Id. at 

377. In fashioning a remedy, the Court recognized that the 

defendant was entitled to a hearing in which the 

voluntariness, and hence admissibility, of his confession 

would be determined apart from "the body trying guilt or 

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

 So far we agree and hold that he is now entitled 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 determined that 

 Jackson's confession was voluntarily given, admissible 

 in evidence, and properly to be considered by the jury, 

 we see no constitutional 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 found guilty. 

In that case, because the constitutional violation suffered 

by the habeas petitioner was the lack of a necessary 

hearing, the Court could remedy that defect by ordering a 

constitutional hearing itself. It was the legal outcome 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 the hearing 

itself. 

However, the nature of the constitutional violation

suffered by Henderson is very different than that in 

Jackson. To be sure, the Court there stated that no new 

trial was necessary "for Jackson has already been tried by 

a jury with the confession placed before it and has been 

found guilty." Jackson, 378 U.S. at 394. But the linchpin of 

the Court's decision in Jackson, and the sole issue argued 

and decided there, was not the Sixth Amendment Right to 

 16 
Counsel present in this case, but a determination that "a 

conviction based upon a coerced confession . . . cannot 

withstand constitutional attack under the Due Process 

Clause of the Fourteenth Amendment." Id. at 377. There 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 more 

than an opportunity to have his confession suppressed-- 

the legal outcome of that hearing. Rather, the constitutional 

defect he suffered in the first suppression hearing was a 

procedural, structural defect which may have had 

repercussions in plea bargaining, discovery and trial 

strategy that would not be cured by a new suppression 

hearing alone. This is a much more sophisticated right and 

its analysis must always begin where the due process 

determination leaves off. 

The importance of "the guiding hand of counsel at every 

step in the proceedings against him," Powell v. Alabama, 

287 U.S. 45, 69 (1932), cannot be understated. First, 

representation by counsel in the stages leading up to trial 

is beneficial to the defendant who may wish to pursue 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 qua non of 

permissible plea bargaining."). Second, "trained counsel can 

more effectively discover the case the State has against his 

client and make possible the preparation of a proper 

defense to meet that case at the trial." See Coleman 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 at the 

trial, or preserve testimony favorable to the accused of a 

witness who does not appear at the trial." Id. Particularly 

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 attorney at both 

proceedings certainly would have been beneficial to

Henderson's ultimate defense. Henderson suffered a 

constitutional deprivation that went to the heart of the 

criminal trial process itself, a violation which cannot be 

 17 
remedied by merely ordering a new suppression hearing 

and conditioning a new trial on its sheer outcome alone. Cf. 

Waller v. Georgia, 467 U.S. 39, 47-50 (1984) (in non-habeas 

case reviewing state criminal convictions, where defendants 

failed to have wiretap evidence suppressed in a closed 

pretrial hearing that violated the Sixth Amendment's public 

trial guarantee and were convicted at trial, the Court 

remanded for new suppression hearing only; however, the 

Court stressed that the outcome of such hearings often 

replaced the importance of the trial itself and the Court did 

not indicate any way in which the procedure and conduct 

of the suppression hearing, other than its sheer outcome 

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 piece 

of evidence offered against Henderson at trial: his

confession. Of course, that Henderson failed to have his 

confession suppressed in no way precluded his attack on 

the credibility of the confession at trial. See Crane v. 

Kentucky, 476 U.S. 683, 690 (1986). The judge may not 

have ruled as a matter of law that the confession was 

inadmissible, but had a skilled attorney represented 

Henderson at the suppression hearing, he or she would 

have confronted the witnesses against Henderson and

studied the Commonwealth's trial strategy, in the hopes of 

preparing a better attack on the factual environment of the 

confession at a trial by jury. See id. at 691; Dancy v. United 

States, 361 F.2d 75, 77 (D.C. Cir. 1965) ("defense counsel's 

conduct of the cross-examination of witnesses at the trial 

reflects a tentative and probing approach due to his 

ignorance of certain doubtful areas in the government's 

proof which might well have been known to him had he 

been able to participate in the preliminary hearing"). 

D. 

Finally, we decide that the deprivation of Henderson's 

right to counsel at the suppression hearing is one of the 

"structural defects in the constitution of the trial 

mechanism, which defy analysis by `harmless-error' 

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

(1991); see also Salemo, 61 F.3d at 221-222 (refusing 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 analysis 

inapplicable to waiver of counsel cases); United States 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 structural 

defects, including deprivation of the right to counsel at the 

trial itself, "requires automatic reversal of the conviction 

because they infect the entire trial process." Brecht v. 

Abrahamson, 507 U.S. 619, 629-630 (1993). On the other 

hand, mere "trial errors," which usually "occur during the 

presentation of the case to the jury," are "amenable to 

harmless-error analysis" because they "may . .. be 

quantitatively assessed in the context of other evidence 

presented in order to determine [the effect they had on the 

trial]." Id. at 629 (quoting Fulminante, 499 U.S. at 307-308). 

Violations of the right to counsel may not always be 

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 where, as 

here, "deprivation of the right to counsel affected--and 

contaminated--the entire criminal proceeding", Satterwhite 

v. Texas, 486 U.S. 249, 257 (1988). We are convinced that 

the absence of counsel at Henderson's suppression hearing, 

which handicapped Henderson during the remainder of the 

proceedings against him and especially injured his 

attorney's ability to argue the facts of his confession to the 

jury at trial, contaminated the entire criminal proceeding in 

this case. See United States v. Cronic, 466 U.S. 648, 659 

_________________________________________________________________ 

3. But see United States v. Mills, 895 F.2d 897, 904 (2d Cir. 1990) (even 

though defendant suffered right to counsel violation when denied 

opportunity to make closing argument pro se in hearing to suppress 

defendant's incriminating statements, violation was harmless error 

because, after motion to suppress was denied, government did not 

introduce statements at trial); Richardson v. Lucas, 741 F.2d 753, 757 

(5th Cir. 1984) (even if waiver of counsel was invalid, error was 

harmless). 

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

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 presumed by 

the fact of the constitutional error itself. 

E. 

The sum of these factors--that the deprivation of counsel 

from Henderson's suppression hearing was a procedural, 

structural defect, that Henderson has the right to introduce 

facts at trial in an effort to attack the credibility 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 conclusion we 

reach today does not run counter to the teachings of the 

Supreme Court or prior decisions of this court. First, the 

views stated here do not conflict with the holding or 

teachings of Jackson v. Denno, which did not address the 

Sixth Amendment Right to Counsel but discussed only a 

due process violation. The full guarantee of the Sixth 

Amendment gives the defendant the right to make proper 

preparation for trial on the basis of testimony adduced at 

the suppression hearing, irrespective of the outcome of the 

hearing, a constitutional issue that was neither argued nor 

decided by the Court in Jackson. In contrast to the jury in 

Jackson, which arguably knew too much (and was harmed 

by what it knew), the jury in this case had too little 

information. What is at stake here is the opportunity of 

counsel to utilize at a subsequent trial any information he 

may have obtained at the suppression hearing. Nor do we 

think that our view is contrary to the teachings and 

holdings of cases in this court. For example, in United 

States ex rel. Harvin v. Yeager, 428 F.2d 1354, 1358-1359 

(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. 1966), we 

found due process violations where each state prisoner was 

denied a Jackson hearing. We have already decided that 

 20 
due process requires a very different analysis than the 

correction of a Sixth Amendment deprivation. Moreover, in 

Yeager, 428 F.2d at 1359, we conditioned the writ on a new 

Jackson hearing in which the state court would decide 

whether the prisoner's statement at issue was voluntary 

and hence admissible, but stated that even if the state 

courts "hold the statement admissible, they may still 

consider the possibility of granting a new trial, especially if 

there is any substantial difference between the evidence 

presented at the new hearing and that which had been 

submitted to the jury at the trial." 

Second, in no way do we ignore the teachings of Brecht, 

507 U.S. at 637, which mandates that habeas relief be used 

only "to afford relief to those whom society has`grievously 

wronged' " and not when there is a mere "reasonable

possibility" of harm to the petitioner. Here, we have not 

suggested a mere possibility that the verdict was tainted by 

constitutional error; we have found a real constitutional 

error--to wit, a violation of the Sixth Amendment Right to 

Counsel--one that substantially undermines our confidence 

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 suppression 

hearing that was closed to the public in violation of the 

Sixth Amendment's guarantee of a public trial. Obviously, 

the violation in that case was easily cured by ordering a 

new public suppression hearing. In this case, the Sixth 

Amendment Right to Counsel will simply not be cured by 

ordering a new suppression hearing alone because the 

effect of the constitutional error spilled over into 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. We are not 

prepared to rule as a matter of law that a lawyer who 

represents a defendant at an unsuccessful suppression 

hearing will always be unable, as a result of that hearing, 

to uncover facts or develop strategy that will ultimately 

benefit his or her client at trial. Holding that Henderson is 

entitled only to a new suppression hearing and not a new 

trial would be to rule just that. If the confession is not 

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

decided is that there was no illegality in the 

Commonwealth's obtaining the confession. This ruling of 

law would not deny the defendant's right to raise questions 

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 "trial, 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 and 

attests his right "to have the Assistance of Counsel for his 

defence." 

* * * * * * * * * 

We have considered all contentions of the parties and 

have concluded that no further discussion is necessary. 

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 following the 

suppression hearing. 

 22 
GARTH, Circuit Judge, dissenting: 

I agree with the majority of the court that: (1) the AEDPA 

does not apply in this case, (2) Henderson has exhausted 

his claims, (3) the uncounseled suppression hearing

 949<!>conducted by the Court of Common Pleas violated 

Henderson's constitutional rights, and (4) we are therefore 

obliged to order the district court to issue the writ of 

habeas corpus. I part company with the panel majority on 

the one substantial issue in this appeal: the remedy that 

must be afforded Henderson "to correct the constitutional 

violation found by the court." Hilton v. Braunskill, 481 U.S. 

770, 775 (1987). Because I feel strongly that the majority's 

analysis is deeply flawed on this point, I feel compelled 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 neither 

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 Circuit 

authority, would hold that the writ should be conditioned 

only on the grant of a counseled and therefore 

constitutional suppression hearing. 

I reach this conclusion because the Supreme Court so 

held in Jackson v. Denno, 378 U.S. 368 (1964). In Jackson, 

the Supreme Court ruled 5 to 4 that, because a new 

suppression hearing could cure the constitutional wrong 

entirely and minimized the federal intrusion into state 

sovereignty, the habeas writ need only direct that a new 

suppression hearing be held to determine whether the 

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 cases as 

well, and has in each case limited the habeas relief 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 Cir. 

1970) (ordering district court to issue writ conditioned 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 because 

it might unduly interfere with state sovereignty. Maj. Op. at 

15-22. 

Absent Jackson and its progeny, I would still disagree 

with the majority. Awarding Henderson a new trial in the 

event that his confession is once again ruled admissible 

"provide[s] a totally unjustifiable windfall to a petitioner 

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 testified to 

the circumstances surrounding his confession. Granting 

Henderson a bonus new trial based on the "possibility" that 

constitutional error might have contributed to his trial even 

if his confession were properly admitted "is at odds with the 

historic meaning of habeas corpus." Brecht v. Abrahamson, 

507 U.S. 619, 637 (1993). 

Because the Supreme Court has already rejected the 

majority's argument in Jackson, however, I am compelled to 

raise a much more serious objection. I believe that the 

majority's efforts to finesse and distinguish Jackson v. 

Denno is a complete derogation of Supreme Court 

authority. Supreme Court judgments are always superior to 

our own. Because the Supreme Court has already 

considered and rejected the view that the Constitution 

requires a new trial to be granted in such circumstances, 

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 Henderson's 

unconstitutional suppression hearing might have had on 

his trial has unjustifiably disregarded both state 

prerogatives and the jurisprudence of both the Supreme 

Court and the Third Circuit. 

Under Jackson v. Denno, Henderson is constitutionally 

entitled to no more than a counseled suppression hearing. 

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

course, if the state court, at an evidentiary hearing, 

redetermines the facts and decides that [Henderson]'s 

confession was involuntary, there must be a new trial on 

guilt or innocence without the confession's being admitted 

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 Henderson 

by the court. 

A. 

Jackson v. Denno 

In Jackson v. Denno, the Supreme Court invalidated a 

New York criminal procedure by which the voluntariness of 

confessions was submitted to the jury with appropriate 

instructions. The habeas petitioner in that case, Jackson, 

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 recounted 

the circumstances of his confession. He was then crossexamined by the prosecution. Following closing arguments, 

the trial court submitted the issue of the confession's 

voluntariness to the jury. The jury was told that"if it found 

the confession involuntary, it was to disregard it entirely, 

and determine guilt or innocence solely from the other 

evidence in the case; alternatively, if it found the confession 

voluntary, it was to determine its truth or reliability and 

afford it weight accordingly." 378 U.S. at 374-75. 

The Supreme Court, per Justice White, invalidated the 

procedure on the basis that the New York procedure did not 

adequately safeguard the defendant's "right to be free of a 

conviction based upon a coerced confession." Id. at 377. 

The problem, quite simply, was that juries were likely to 

believe that even coerced confessions were truthful. 

Accordingly, jurors were likely to convict defendants on the 

basis of coerced confessions despite the instruction to 

disregard such confessions. See Watkins v. Sowders, 449 

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

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

determination of the voluntariness of the confession" 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 confession 

that was admitted in evidence pursuant to a 

constitutionally flawed procedure, does the Constitution 

require a federal habeas court to enter a writ conditioned 

on an entirely new trial, or merely a writ conditioned on the 

state conducting a proper suppression hearing? 

A majority of the Supreme Court chose the latter. Justice 

White, writing for the majority, agreed that the habeas 

petitioner was entitled to "an adequate [suppression] 

hearing productive of reliable results concerning the 

voluntariness of the confession." Id. at 394. However, he 

wrote, "[i]t does not follow . . . that Jackson is automatically 

entitled to a complete new trial including a retrial of the 

issue of guilt or innocence." Id. According to Justice White: 

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

 it is determined that Jackson's confession was 

 voluntarily given, admissible in evidence, and properly 

 to be considered by the jury, we see no constitutional 

 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 found guilty. 

 . . . [W]e cannot say that the Constitution requires a 

 new trial if in a soundly conducted collateral 

 proceeding, the confession which was admitted at the 

 trial is fairly determined to be voluntary. 

Id. at 394-96 (emphasis added). If the confession was 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 do so." Id. 

at 394. "Obviously, the State is free to give Jackson a new 

trial if it so chooses," Justice White added,"but for us to 

 26 
impose this requirement before the outcome of the new 

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 Clark 

each attacked the majority's conclusion that a new 

suppression hearing was sufficient to correct the 

constitutional violation. According to Justice Clark, a 

suppression hearing alone "d[id] not cure the error which 

the Court finds present." Id. at 426 (Clark, J., dissenting). 

Justice Black agreed, deeming the court's remedy a 

"fragmentizing" device that had improperly succeeded in 

"sustaining convictions and denying defendants a new 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 circumstances 

that raised the possibility that the confession was coerced. 

Like Jackson, Henderson was unconstitutionally denied "an 

adequate evidentiary hearing productive of reliable results 

concerning the voluntariness of his confession." Jackson, 

378 U.S. at 394. In Henderson's case, his hearing was 

inadequate because his right to the assistance of counsel, 

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 Henderson 

was represented by counsel.1 Like Jackson, Henderson took 

the stand in his own defense at trial and explained to the 

jury that his confession was coerced.2 Like Jackson, 

_________________________________________________________________ 

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

trial. 

2. Henderson told the jury that the officers handcuffed him to a chair, 

threatened him, told him what to write down in the confession, and 

failed to read Henderson his Miranda rights. App. 303-06 (trial 

transcript). 

 27 
Henderson was then cross-examined by the prosecution. 

App. 316. As was the case in Jackson's trial, the trial judge 

in Henderson's case instructed the jury "that you must 

disregard the confession or the statement unless you 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 that 

Henderson's constitutional right to the assistance of 

counsel was violated when he was permitted to proceed in 

his suppression hearing pro se without adequate waiver of 

counsel. See Maj. Op. 9-12. In holding that the right to the 

assistance of counsel was so fundamental to a fair trial that 

it was guaranteed to state defendants by the Due Process 

clause of the Fourteenth Amendment, the Supreme Court 

in Gideon described the intolerable unreliability of 

uncounseled proceedings: 

 If charged with crime, [the layman] is incapable, 

 generally, of determining for himself whether the 

 indictment is good or bad. He is unfamiliar with the 

 rules of evidence. Left without the aid of counsel he 

 may be put on trial without a proper charge, and 

 convicted upon incompetent evidence, or evidence 

 irrelevant to the issue or otherwise inadmissible. He 

 lacks both the skill and knowledge adequately to 

 prepare his defense, even though he have a perfect 

 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 conviction 

 because he does not know how to establish his 

 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, and 

permitted Henderson to engage in a critical suppression 

hearing without "the skill and knowledge adequately to 

prepare his defense." Id. That failure denied Henderson that 

 28 
"to which he is constitutionally entitled--an adequate 

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 its 

determination of the proper remedy. Instead of following 

Justice White's majority opinion in Jackson v. Denno, the 

panel majority sides with the dissenting Justices in that 

case and rules that the Constitution requires our court to 

order a writ conditioned on the grant of an entirely new 

trial, rather a writ conditioned on the grant of a 

suppression hearing alone. The panel majority offers two 

reasons for its conclusion, both of which were categorically 

rejected by the Supreme Court in Jackson. 

First, the panel majority adopts Justice Clark's dissent 

and rules that a new trial is required because "merely to 

have the trial judge hold a hearing on the admissibility 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 proper 

(counseled) suppression hearing had been held, it might 

have had "repercussions in plea bargaining, discovery and 

trial strategy that would not be cured by a new suppression 

hearing alone." Maj. Op. at 17. "[H]ad a skilled attorney 

represented Henderson at the suppression hearing," the 

majority speculates, "he or she would have confronted the 

witnesses against Henderson and studied the 

Commonwealth's trial strategy, in the hopes of preparing a 

better attack on the factual environment of the confession 

at a trial by jury." Maj. Op. at 18. Accordingly,"the 

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 before the 

Supreme Court, and that it lost. The Supreme Court 

explicitly rejected the view that "the constitutional 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 confession is 

determined in violation of the defendant's rights,"there is 

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

properly found to be voluntary and therefore admissible. 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 was 

insufficient to cure the wrong because the petitioner's 

position at trial might have been stronger had there been a 

proper suppression hearing before the trial. Such`what if 's 

do not rise to the level of "constitutional prejudice," the 

Court ruled, and thus are inappropriate bases for habeas 

relief. Id. This view is entirely consistent with the remainder 

of the Court's habeas jurisprudence, which has stressed 

that "granting habeas relief merely because there is a 

`reasonable possibility' that [the verdict was tainted 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 Barefoot v. 

Estelle, 463 U.S. 880, 887 (1983) ("The role of federal 

habeas proceedings . . . is secondary and limited."). In other 

words, fashioning habeas relief based on unsupported 

speculation as to how a constitutional suppression hearing 

might have affected the petitioner's trial strategy would 

improperly "provide a totally unjustifiable windfall 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 

_________________________________________________________________ 

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 opinion in Waller v. 

Georgia, 467 U.S. 39, 50 (1984). In Waller, the Court held that a 

suppression hearing that (pursuant to a motion by the state) was closed 

to the public violated the defendant's Sixth and Fourteenth Amendment 

rights to a public trial. On direct review, the Supreme 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 same evidence is 

suppressed, a new trial presumably would be a windfall 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 

 30 
Second, 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 (1963). 

See also Barry v. Brower, 864 F.2d 295, 300 (3d Cir. 1988) 

("Both the historic nature of the writ and principles of 

federalism preclude a federal court's direct interference with 

a state court's conduct of state litigation.") Maj. Op. at 14, 

15. Although the majority never quite fleshes out how this 

could be the case, the idea that limiting the remedy 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 comport with the 

proper relationship between federal and state courts."); see 

also id. at 427 (Harlan, J., dissenting) (describing the 

majority's limited remedy as its "one bow to federalism"). 

Thus, the majority has suggested that it might be 

_________________________________________________________________ 

proper] suppression hearing results in the suppression of material 

evidence not suppressed at the first trial, or in some other material 

change in the positions of the parties." Id. 

The fact that the Court concluded that a new suppression hearing 

cured the constitutional wrong on direct review in Waller is especially 

strong evidence that a new trial is an inappropriate remedy here. The 

Supreme Court has often stressed that the writ of habeas corpus is an 

extraordinary remedy, and that "an error that may justify reversal on 

direct appeal will not necessarily support a collateral attack on a final 

judgment." Brecht, 507 U.S. at 634. Given the much freer hand courts 

have in remedying constitutional wrongs on direct review, the fact that 

the unanimous court believed that a new trial was unnecessary 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. Brierley, 414 F.2d 552, 

560 (3d Cir. 1969); United States ex rel. Dickerson v. Rundle, 363 F.2d 

126, 130 (3d Cir. 1966). 

 31 
constitutionally forbidden to do what the Supreme Court 

ruled it was constitutionally required to do-- condition 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 claims makes 

Henderson's case "very different"-- even "completely 

different"-- from Jackson. The "sum of these factors," the 

majority proclaims, makes Jackson distinguishable and a 

new trial necessary to cure the constitutional wrong. Maj. 

Op. at 20. An examination of these "factors" shows that 

they each applied with equal force to Jackson v. Denno, and 

thus fail to provide any possible basis from which Jackson 

can be distinguished. 

1. 

The weakest of the majority's arguments that Jackson is 

distinguishable is that the denial of a Sixth Amendment 

right to counsel is generally considered a structural defect 

rather than a trial error under the framework provided by 

Arizona v. Fulminante, 499 U.S. 279 (1991). 

I completely agree that the uncounseled suppression

hearing suffered by Henderson was a structural defect in 

his trial. The problem is that the constitutional error 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 Court 

_________________________________________________________________ 

5. The patent weakness of the majority's suggestion that a limited 

remedy might improperly "revise the state court judgment," 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 fifth vote for the 

majority in Jackson one year later. 

 32 
considered unconstitutional suppression proceedings and 

ruled that a new trial was not required to remedy the 

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 structural defect 

that "affect[ed] the framework within the trial proceeds, 

rather than simply an error in the trial process itself ").7 

The error in the majority's analysis is that Fulminante's 

"structural defect"/ "trial error" doctrine is used exclusively 

to gauge whether a reviewing court needs to grant relief 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 admission 

of the tainted evidence "had substantial and injurious effect 

or influence in determining the jury's verdict." Brecht, 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 separate 

question of what relief must be granted, the"structural 

defect"/"trial error" distinction drops out of the analysis 

and becomes completely irrelevant. Accordingly, the panel 

majority's emphasis on the fact that the constitutional 

wrong is a structural defect answers a question that has 

not been asked. It provides no guidance or help in 

determining what remedy is required to cure the 

constitutional defect. 

_________________________________________________________________ 

6. Discussed in note 3, supra. 

7. Because Jackson was decided before the Supreme Court 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 defects and trial errors, 

the 

Jackson opinion could not actually state that its error was a structural 

defect. However, we can be confident that the error in Jackson was a 

structural defect because 1) the Fulminante court specifically held that a 

nearly identical error in Waller was a structural defect, see Fulminante, 

499 U.S. at 310, and 2) the error in Jackson was not something that 

could be "quantitatively assessed in the context of other evidence 

presented in order to determine the effect it had on the trial." Brecht, 

507 U.S. at 629. 

Notably, the majority has not made any argument that the error in 

Jackson was not a structural defect. 

 33 
2. 

The majority also argues that this case is different from 

Jackson because the defect in Jackson was not the Sixth 

Amendment right to counsel present in this case, but 

rather a determination that "a conviction based upon a 

coerced confession . . . cannot withstand constitutional 

attack under the Due Process Clause of the Fourteenth 

Amendment." Maj. Op. at 17 (quoting Jackson, 378 U.S. at 

377) (ellipsis in majority opinion). This, we are told, is a 

"completely different issue . . . that requires a completely 

different analysis." Id. 

The flaw in this argument begins with the majority's 

gross misuse of ellipses to mischaracterize the holding of 

Jackson. The effect of the selective quotation is to foster the 

impression that the issue in Jackson was whether a 

confession was coerced, rather than, as here, whether 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 evidence at 

 the trial, did not adequately protect Jackson's right to 

 be free of a conviction based upon a coerced confession 

 and therefore cannot withstand constitutional attack 

 under the Due Process Clause of the Fourteenth 

 Amendment. 

Jackson, 378 U.S. at 377 (emphasis added). As this 

quotation shows, the constitutional error in Jackson was 

not that Jackson's "conviction [was] based upon a coerced 

confession," as the majority states, but that the procedure 

"did not afford a reliable determination of the voluntariness 

of the confession" so that there was a substantial risk that 

Jackson's conviction was based upon a coerced profession. 

As a matter of substance, the constitutional wrongs in 

the two cases were the same: the petitioners' confessions 

were determined in unreliable proceedings. Granted, the 

sources of the unreliability are different: in Jackson, the 

concern was that jurors would be unable to follow the 

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

defendant proceeding without a lawyer would be unable to 

defend his case. The substance of the constitutional wrongs 

is the same, however: in both cases, the voluntariness of 

the confessions was the issue. Because the proceedings in 

which the voluntariness of the confessions was determined 

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 federal 

guarantees listed in the Bill of Rights that are "fundamental 

and essential to a fair trial." Gideon, 372 U.S. at 340. The 

majority concedes that this was the wrong identified in 

Jackson, but then tries to pin the constitutional violation 

here on the Sixth Amendment, rather than the Fourteenth. 

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 includes 

them. See Gideon, 372 U.S. at 345. Therefore, this alleged 

difference is an illusion. 

3. 

The third and final "factor" that the majority lists as a 

ground for distinguishing Jackson is that the denial of 

counsel at Henderson's suppression hearing "may have had 

repercussions in plea bargaining, discovery, and trial 

strategy." Maj. Op. at 17. The participation of a skilled 

attorney at the suppression hearing "would have been 

beneficial to Henderson's defense," we are told, because it 

might have revealed weaknesses in the Commonwealth's 

case that could have only been uncovered in a pre-trial 

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 hopes of 

preparing a better attack on the factual environment of the 

confession at a trial by jury." Id. at 18. This contrasts with 

Jackson, we are instructed, because in Jackson the only 

 35 
harm suffered by the habeas petitioner was the absence of 

"an opportunity to have his confession suppressed-- the 

legal outcome of that hearing." Id. at 17. Thus, the 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 between 

the two cases by comparing apples and oranges: the 

possibility of actual prejudice in Henderson's case, as 

compared with the reality of constitutional prejudice in 

Jackson. If we apply the same scrutiny to both cases, 

however, we see that the reason stated for distinguishing 

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 "confront[ ] the 

witnesses against [them] and [to] stud[y] the 

Commonwealth's trial strategy [before trial], in the hopes of 

preparing a better attack on the factual environment 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 itself, 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 substantial, 

because Henderson managed to delve into the 

circumstances of his confession in substantially more depth 

than did Henderson's counsel at trial. In fact, the transcript 

of the uncounseled suppression hearing runs 54 pages; 

Henderson's entire defense, by comparison, is contained on 

only 21 pages.8 

In contrast, Jackson had no opportunity whatsoever to 

probe the prosecution's case before trial. If the majority is 

right that such missed opportunities to gain tactical 

_________________________________________________________________ 

8. Compare App. 158-211 (uncounseled suppression hearing) with App. 

298-319 (trial). Of course, the adequacy of Henderson's trial counsel is 

not at issue in this petition. 

 36 
advantage are constitutionally relevant, then the case 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 rejected 

the view that such possibilities were relevant, and instead 

adopted the view that there was "no constitutional 

prejudice" so long as a subsequent suppression hearing 

later revealed that the confession relied upon by the jury 

was properly before it. Id. at 394. In distinguishing between 

actual prejudice and constitutional prejudice, the Court 

reasonably tailored the constitutional remedy to the 

constitutional wrong. Because defendants do not have a 

constitutional right to an opportunity to gain a tactical 

advantage in pre-trial proceedings, the denial of such 

opportunities could not create constitutional prejudice that 

could be a relevant consideration in fashioning habeas 

relief. Applying this same standard to Henderson's case 

leads to the ineluctable conclusion that there could be no 

constitutional prejudice to Henderson if a subsequent 

suppression hearing later reveals that the confession relied 

upon by the jury was properly before it. 

D. 

This Court's conclusion that a new trial is required if a 

counseled suppression hearing reveals that Henderson's 

confession was properly admitted at trial is contrary to 

reason and directly clashes with the Supreme Court's 

holding in Jackson v. Denno. I therefore respectfully 

dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 37