PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-3118

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EDWARD MITCHELL,

Appellant

v.

SUPERINTENDENT DALLAS SCI;

ATTORNEY GENERAL PENNSYLVANIA;

DISTRICT ATTORNEY DAUPHIN COUNTY

______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 1-09-cv-02548)

Honorable Yvette Kane, District Judge

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Submitted Under Third Circuit L.A.R. 34.1(a)

June 11, 2018

BEFORE: CHAGARES, GREENBERG, and FUENTES, 

Circuit Judges
2

(Filed: August 23, 2018)

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Heidi R. Freese, Esq. 

Federal Public Defender

Middle District of Pennsylvania

Frederick W. Ulrich, Esq.

Asst. Federal Public Defender

Tammy L. Taylor, Esq.

Staff Attorney

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

 Attorneys for Appellant

Francis T. Chardo, Esq.

Ryan H. Lysaght, Esq.

Dauphin County Office of District Attorney

Dauphin County Courthouse

101 Market Street

Harrisburg, PA 17101

 Attorneys for Appellee

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OPINION OF THE COURT

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3

GREENBERG, Circuit Judge.

I. INTRODUCTION

Edward Mitchell, a prisoner in the custody of the 

Commonwealth of Pennsylvania, appeals from an order denying 

his petition for a writ of habeas corpus under the Antiterrorism 

and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. 

§ 2254. See Mitchell v. Walsh, No. 1:09-cv-02548, 2017 WL 

3725503 (M.D. Pa. Aug. 29, 2017). Mitchell currently is 

serving a sentence of life imprisonment following his 

convictions at a joint trial with Karim Eley and Lester Eiland in 

a Pennsylvania state court in 2001 for various offenses arising 

from a robbery and a murder. Mitchell seeks relief on the 

grounds that the admission at the trial of testimony of jailhouse 

informants setting forth his co-defendant Lester Eiland’s out-ofcourt jailhouse statements violated his rights under the 

Confrontation Clause of the Sixth Amendment. The District 

Court in the habeas corpus proceedings concluded that Eiland’s 

statements to the informants were nontestimonial as recognized 

by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 

(2004), and therefore their inclusion in testimony at the trial did 

not violate his Confrontation Clause rights even though he could 

not cross-examine Eiland regarding the statements.

Mitchell has argued and continues to argue that the 

District Court erred by applying Crawford because the AEDPA 

requires assessment of whether a state court’s decision was 

“contrary to, or involved an unreasonable application of, clearly 

established Federal law,” 28 U.S.C. § 2254(d)(1), and the 

Supreme Court decided Crawford on March 8, 2004, after his 

trial and after the Superior Court of Pennsylvania affirmed his 
4

conviction on direct appeal on September 22, 2003, in the last 

state court proceeding dealing with the Sixth Amendment issue. 

Consequently, he points out that the Crawford principles were 

not “clearly established” at the time the state courts were 

considering the Sixth Amendment issue. Mitchell contends that 

even if admission of the challenged statements would not create 

a Confrontation Clause issue in a trial held today, he is entitled 

to habeas corpus relief because, prior to Crawford, when his 

case was being tried and was on direct appeal, the Confrontation

Clause would have been applied to bar the jailhouse testimony 

with respect to Eiland’s statements.

We have concluded that Mitchell, by focusing narrowly 

on the “clearly established Federal law” language of 28 U.S.C. 

2254(d)(1) and by relying on the law in effect at the time of his 

trial and appeal, misstates the standard applicable to habeas 

corpus review of a state court conviction in the federal courts. 

Congress in section 2254(d) has made it a necessary, but not a 

sufficient, condition for granting habeas corpus relief to a state 

prisoner that a state court’s decision leading to his custody was 

contrary to, or unreasonably applied, clearly established federal 

law at the time that the state court made its decision. But even if 

a petitioner in state custody makes that showing he has satisfied 

only one requirement for the granting of his petition because the 

AEDPA allows relief to be granted “only on the ground that [a 

prisoner] is in custody in violation of the Constitution or laws or 

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

added). Accordingly, notwithstanding a state court’s 

misapplication of federal law at trial a prisoner is not necessarily 

entitled to relief in the light of “the longstanding rule that 

federal courts will not entertain habeas petitions to correct errors 

that do not undermine the lawfulness of a petitioner’s 
5

detention.” Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir. 

2005). For the reasons we set forth below, we conclude that 

Mitchell is not in custody pursuant to what is now recognized as 

a violation of the Sixth Amendment attributable to the testimony 

at the trial of the jailhouse informants which set forth Eiland’s 

statements and therefore we will affirm the order of August 29, 

2017, denying Mitchell’s petition for a writ of habeas corpus.

II. FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2001, at the joint trial of Mitchell and his 

two co-defendants, Eley and Eiland, a jury convicted Mitchell of 

second-degree murder, robbery, and conspiracy to commit 

robbery in the July 2000 shooting death of Angel DeJesus, a taxi 

driver, in Harrisburg, Pennsylvania. See Commonwealth v. 

Mitchell, No. 782-2014, 2015 WL 7726738, at *1-2 (Pa. Super. 

Ct. Jan. 12, 2015). Prior to the trial, Mitchell and Eley filed 

unsuccessful motions to have their cases severed from those of 

the other defendants and thus the trial was of all three 

defendants. 

After extensive but ultimately unsuccessful state court 

proceedings, Mitchell filed a petition for a writ of habeas corpus 

in the District Court under 28 U.S.C. § 2254 on December 28, 

2009, which he amended on October 19, 2010.1

 Mitchell’s 

amended petition advanced three grounds for relief: (1) the state 

trial court’s charge on reasonable doubt was constitutionally 

defective; (2) the introduction of the informants’ testimony 

 1 The federal habeas corpus proceedings were prolonged by 

orders staying proceedings on Mitchell’s petition while his state 

post-conviction relief applications were pending. 
6

describing non-testifying co-defendant Eiland’s out-of-court 

statements violated Mitchell’s rights under the Confrontation 

Clause; and (3) the trial court deprived Mitchell of due process 

of law when it denied his claim of actual innocence. At this 

time, however, Mitchell limits his claim to the Confrontation 

Clause issue and thus we do not address the other issues he set 

forth in his petition.

Mitchell argues that the testimony at the trial of two 

jailhouse informants, Matthew LeVan and Steven Taylor, 

violated his constitutional rights because they testified as to 

Eiland’s out-of-court statements that implicated Mitchell in the 

offenses and Mitchell did not have the opportunity to confront 

Eiland regarding those statements. Though Eiland’s statements 

did not mention Mitchell by name, Mitchell contends that in the 

context of the joint trial Eiland’s statements implicated him in 

the robbery and murder. Specifically, LeVan testified as 

follows:

Q. Now, if you can, describe for the jury the 

conversation you had with Lester Eiland while 

you were in the jail cell playing cards.

A. He said about the sawed-off shotgun was used 

and a .380 pistol, and there was two other guns 

used and one was hidden in a brick close to where 

it happened at.

Q. Did he say what kind of crime it was?

A. Homicide

Q. Or began as?

A. Homicide—no, it was a robbery.

Q. Did he say what happened?
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A. He said they—they, as in whoever was with 

him—he didn't say the names of those people—

when he went up to them, it was supposed to be a 

robbery, and he was—he’s the one that shot him, 

but he didn't mean to do it. It was the other two's 

idea or something like that, in that sense.

App. 225.

Taylor testified, referring to the substance of Eiland’s 

statements, that “they were there to rob a cab driver, and 

I guess with different things you did or whatnot during 

the evening, somewhere, somehow, something went 

wrong and whatnot. Somebody ended up dead from 

that.” App. 239. 

Mitchell claims that these jailhouse witnesses’ references 

to “they” and the murder being “the other two’s idea” tied him 

to the robbery and provided key evidence to establish his 

culpability for the offenses. Mitchell argues that the failure to 

exclude or properly redact the references to his involvement in 

the offenses from the co-defendant’s statements to which the 

informants referred violated his confrontation rights as 

recognized in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 

1620 (1968), Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 

1702 (1987), and Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 

1151 (1998). He unsuccessfully raised this claim on direct 

appeal in the Superior Court of Pennsylvania where he also 

unsuccessfully challenged the trial court’s order denying his 

pretrial motion to sever his trial from that of his co-defendants. 

See Commonwealth v. Mitchell, No. 1658 MDA 2001, slip op. 
8

at 6 (Pa. Super. Ct. Sept. 22, 2003).2

Mitchell understandably relies on our decision in Eley v. 

Erickson, 712 F.3d 837 (3d Cir. 2013), in which we granted 

habeas corpus relief to his co-defendant, Kariem Eley, whom the 

jury also convicted at the joint trial. We granted Eley’s petition 

because we believed that there had been a Bruton violation in 

his case by reason of the admission of testimony describing 

Eiland’s statements at the trial. In Eley, we held that the state 

court’s order denying a motion to sever the trials was contrary to 

federal law clearly established by Bruton, Richardson, and Gray, 

Supreme Court’s precedent on the Confrontation Clause. 712 

F.3d at 859. Focusing in particular on Eiland’s statement that it 

was “the other two” defendants who had the “idea” to rob the 

victim, in Eley we explained:

Although we are mindful of the deference 

that we owe to the Commonwealth’s courts, we 

are constrained to conclude that fairminded jurists 

could not disagree that the Superior Court’s 

decision is inconsistent with Richardson and 

Gray. We have no doubt that the jury inferred, on 

the basis of Eiland’s confession alone, that Eley 

was one of ‘the other two’ whose ‘idea’ it was to 

rob DeJesus. . . . Indeed, a juror who wondered to 

whom ‘the other two’ referred . . . ‘need[ed] only 

 2

 The Pennsylvania Supreme Court denied Mitchell’s petition 

for review of the Superior Court decision on June 29, 2014. The 

Pennsylvania courts subsequently have denied four separate 

petitions for post-conviction relief that Mitchell has filed. But 

none of the state post-conviction proceedings addressed the 

Confrontation Clause issue presented here.
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lift his eyes to [Eley and Mitchell], sitting at 

counsel table, to find what ... seem[ed] the 

obvious answer,’ Gray, 523 U.S. at 193, 118 S.Ct. 

1151.

Id. at 859 (alterations in original).

Mitchell has argued in these habeas corpus proceedings that our 

holding in Eley that the introduction of testimony making 

reference to Eiland’s statements was unconstitutional applies 

with the same force here and therefore on that basis he is 

entitled to habeas corpus relief.

The District Court referred Mitchell’s petition to a 

magistrate judge for a report and recommendation which she 

issued on December 12, 2016, recommending that the Court 

deny Mitchell’s petition. Mitchell filed objections to the report 

and recommendation but the Court overruled the objections by 

adopting the report and recommendation on August 29, 2017, in 

a memorandum opinion. The Court concluded that, even 

assuming Mitchell could make the threshold showing under 28 

U.S.C. § 2254(d)(1) that the state court’s denial of his 

Confrontation Clause claim was “contrary to, or involved an 

unreasonable application of, clearly established Federal law” 

under Bruton, he was not entitled to relief because the Sixth 

Amendment law had evolved in Crawford after his trial and 

there had not been a Confrontation Clause violation under the 

updated standards.3

 

 3 The Commonwealth initially argued that Mitchell had not 

exhausted his Confrontation Clause claim in the state courts, as 

required to proceed under 28 U.S.C. § 2254. However, by the 

time the magistrate judge had made her report and 
10

The germane development of the law in Crawford was 

that the Sixth Amendment Confrontation Clause was recognized 

as guarding against testimonial statements made by an 

individual in anticipation that the person to whom he makes the 

statements will be called as a witness as well as formal 

statements made under oath and statements made to law 

enforcement officers seeking information about past events. 

After the District Court denied his petition, Mitchell, to whom 

that Court granted a certificate of appealability, filed this timely 

appeal challenging the application of Crawford to his 

Confrontation Clause claim.

III. STATEMENT OF JURISDICTION AND STANDARD 

OF REVIEW

The District Court had jurisdiction over Mitchell’s 

petition for a writ of habeas corpus under 28 U.S.C. §§ 2254 and 

2241. We have jurisdiction over this appeal from the denial of 

an application for a writ of habeas corpus pursuant to 28 U.S.C. 

§§ 1291 and 2253. Inasmuch as the Court did not hold an 

evidentiary hearing on Mitchell’s petition, our review is plenary. 

Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009).

The AEDPA imposes a “highly deferential standard” on 

federal habeas corpus review of state court proceedings. That 

standard “demands that [such] decisions be given the benefit of 

 

recommendation, the Commonwealth had conceded that the 

exhaustion requirement had been satisfied with respect to the 

Confrontation Clause claim and that the claim was therefore not 

procedurally defaulted. See App. 961, 979.
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the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 

1862 (2010). A federal court cannot grant habeas relief based 

on a claim that was “adjudicated on the merits” in a state court 

unless that adjudication “resulted in a decision that was contrary 

to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of 

the United States” or “was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding.” 28 U.S.C. § 2254(d).

IV. DISCUSSION

As was the District Court, we are satisfied that Mitchell 

established that the Pennsylvania Superior Court, in the last state 

court decision to address the Sixth Amendment issue, 

unreasonably applied what was then clearly established federal 

law when it upheld the trial court’s ruling refusing to sever 

Mitchell’s trial from that of the other defendants before 

admitting the testimony referencing Eiland’s out-of-court 

statements that implicated Mitchell in the offenses. Indeed, in 

Eley we considered these statements and their effect on Eley, 

who was in Mitchell’s position, and concluded that the 

admission of the statements violated the Confrontation Clause 

and that the error “substantially influenced the jury’s verdict.” 

Eley, 712 F.3d at 861 (citing Bruton, 391 U.S. at 129, 88 S.Ct. at 

1624). Thus the admission of the testimony was not a small 

matter. But the question that we now must address is different 

for it is whether the District Court in considering the habeas 

corpus petition correctly considered case law authority 

subsequent to that on which we relied in Eley in considering 

whether Mitchell was “in custody in violation of the 
12

Constitution or laws or treaties of the United States” under 28 

U.S.C. § 2254(a). That recent authority is Crawford and our 

decision in United States v. Berrios, 676 F.3d 118 (3d Cir. 

2012), in neither of which we discussed Eley.

There is no doubt but that if a habeas corpus petitioner 

shows that a state court decision leading to his custody was 

contrary to, or an unreasonable application of, clearly 

established federal law under 28 U.S.C. § 2254(d), he often will 

be entitled to relief, though not “always and automatically.” 

Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir. 2012). While it 

is necessary for a state prisoner to satisfy § 2254(d) to make a 

successful habeas corpus claim, he cannot obtain habeas corpus 

relief unless he also makes a showing under § 2254(a) that he is 

being held in custody in violation of the Constitution, laws, or 

treaties of the United States. Id. “[Section] 2254 relief thus is 

available only to state prisoners who currently are being held in 

violation of an existing constitutional right, not to inmates who 

at one point might have been able to show that [under] a sinceoverruled Supreme Court or lower court precedent [they] would 

have [been entitled to] relief.” Desai v. Booker, 538 F.3d 424, 

428 (6th Cir. 2008); see also Dennis v. Sec’y, Pennsylvania 

Dep’t of Corr., 834 F.3d 263, 349 n.6 (3d Cir. 2016) (Jordan, J., 

concurring) (explaining importance of “understand[ing] the 

interplay between §§ 2254(a) and 2254(d)”).

This case involves the evolution of the law inasmuch as 

regardless of what happened at his trial or the state of the law at 

that time, Mitchell is unable to show that he is being held in 

violation of an existing right by reason of the informants’ 

testimony. In Crawford, the Supreme Court explained that the 

“primary object” of the Confrontation Clause is to protect 

defendants from testimonial hearsay, including statements taken 
13

by law enforcement from witnesses against the accused. 541 

U.S. at 53, 124 S. Ct. at 1365. We have made clear that the 

Supreme Court, building on Crawford, has gone on to hold “that 

the Confrontation Clause protects the defendant only against the 

introduction of testimonial hearsay statements, and that 

admissibility of nontestimonial hearsay is governed solely by the 

rules of evidence.” Berrios, 676 F.3d at 126 (emphasis in 

original) (citing Davis v. Washington, 547 U.S. 813, 823–24, 

126 S. Ct. 2266, 2274 (2006), Michigan v. Bryant, 562 U.S. 344,

352-53, 131 S.Ct. 1143, 1152–53 (2011), and Whorton v. 

Bockting, 549 U.S. 406, 419–20, 127 S.Ct. 1173, 1182-83 

(2007)). 

In Berrios, we declined to apply the Confrontation Clause 

to bar introduction of jailhouse testimony not unlike the 

testimony with respect to Eiland’s statements involved in this 

case because in light of the developing Supreme Court 

jurisprudence we indicated that “where nontestimonial hearsay 

is concerned, the Confrontation Clause has no role to play in 

determining the admissibility of a declarant’s statement.” 676 

F.3d at 126.4

 Though in some circumstances it might not be 

 4

 Mitchell argues that application of Crawford and its progeny 

to his petition violates the antiretroactivity principles of Teague 

v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). But Teague does 

not affect our analysis for two reasons: First, Mitchell has not 

challenged the District Court’s observation that Crawford was 

decided before his conviction became final for purposes of a 

Teague analysis, and thus it would not be necessary to apply 

Crawford retroactively to consider its impact on his

Confrontation Clause claim. See Mitchell, 2017 WL 3725503, 

at *5. Second, Teague bars application of new rules of criminal 

procedure to collaterally attack convictions in state courts, but 
14

clear if a statement is testimonial or nontestimonial for Crawford

purposes this is not such a case because Mitchell concedes, 

correctly, that Eiland’s statements were not testimonial.

Berrios and the Supreme Court precedent on which it 

relies foreclose Mitchell’s claim for relief. Even if Mitchell 

shows that the Pennsylvania Superior Court’s decision affirming 

his conviction was contrary to what was clearly established 

Federal law at the time the court made the decision, that 

showing alone would not entitle him to habeas corpus relief 

because he also must show that his confinement violates the 

Constitution, laws, or treaties of the United States, see 28 U.S.C. 

§ 2254(a), a determination that takes into account all relevant 

precedent. In this regard, notwithstanding Eley we are obliged 

to consider Crawford because it is a relevant precedent and the 

respondent squarely has raised the case even though we did not 

 

has no relevance where consideration of a new rule leads to 

rejection of a habeas corpus claim. In such a case, considering 

the new rule and refusing to upend a conviction based on prior 

standards serves the very aims of finality and repose that the 

Teague rule safeguards. See Lockhart v. Fretwell, 506 U.S. 364, 

373, 113 S. Ct. 838, 844 (1993); Flamer v. State of Del., 68 F.3d 

710, 725 n.14 (3d Cir. 1995) (“Teague only applies to a change 

in the law that favors criminal defendants.”) (emphasis in 

original). Cf. United States v. Peppers, 2018 WL 382713, at 

*13 (3d Cir., Aug. 13, 2018) (holding that, for purposes of 

applying the categorical approach to assess prior convictions, 

post-sentencing Supreme Court precedent explaining the Armed 

Career Criminal Act can be considered once an applicant for 

post-conviction relief has satisfied the gatekeeping requirements 

of AEDPA codified at 28 U.S.C. § 2255(h)).
15

discuss Crawford when we granted relief to Eley.5 

It is appropriate to rely on current constitutional standards

in evaluating a habeas corpus petition because, “as a practical 

matter, correcting violations of extant constitutional standards is 

all that the statute ever could meaningfully require of a state –

at least when it comes to a constitutional challenge to the 

admission of evidence.” Desai, 538 F.3d at 428. It would be 

anomalous to grant habeas corpus relief to Mitchell because of 

the introduction of evidence that would be admissible under 

current constitutional standards at a retrial notwithstanding the 

previous Confrontation Clause error. After all, if we granted the 

petition we would do so subject to the condition that the 

prosecution at its option could retry Mitchell. See Eley, 712 

F.3d at 862.6 

V. CONCLUSION

We sum up by saying that inasmuch as under Crawford, 

there was not a violation of the Confrontation Clause due to the 

admission of the informants’ testimony with respect to Eiland’s 

statements Mitchell is not being held in custody in violation of 

 5

 In similar circumstances, we already have noted that Eley is 

not dispositive of whether Crawford applies to bar relief because 

“the parties in Eley did not mention, and the Eley Court did not 

consider or rule on, the Crawford issue.” Waller v. Varano, 562 

F. App’x 91, 95 n.5 (3d Cir. 2014).

6 Sometimes when habeas corpus relief is granted it may not be 

permissible to retry the petitioner. But we see no reason why if 

we were reversing on the Confrontation Clause issue the case 

would come within that category. See Burks v. United States, 

437 U.S. 1, 16-18, 98 S.Ct. 2141, 2150-51 (1978).
16

the Constitution laws, or treaties of the United States and 

accordingly he is not entitled to a writ of habeas corpus. 

Therefore, we will affirm the order entered on August 29, 2017, 

denying Mitchell’s petition for habeas corpus.