1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-28-1999

Coss v. Dist Atty Lackawanna

Precedential or Non-Precedential:

Docket 98-7416

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Coss v. Dist Atty Lackawanna" (1999). 1999 Decisions. Paper 169.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/169
Filed June 28, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7416 

EDWARD R. COSS, JR., 

 Appellant 

v. 

LACKAWANNA COUNTY DISTRICT ATTORNEY; 

THE ATTORNEY GENERAL OF THE 

COMMONWEALTH OF PENNSYLVANIA 

On Appeal From the United States District Court 

For the Middle District of Pennsylvania 

(D.C. Civil No. 94-cv-1481) 

District Judge: Honorable Thomas I. Vanaskie 

Argued March 1, 1999 

Before: STAPLETON, RENDELL, and ALDISERT, 

Circuit Judges 

(Filed June 28, 1999) 

 Daniel I. Siegel, Esq. (ARGUED) 

 Assistant Federal Public Defender 

 Middle District of Pennsylvania 

 100 Chestnut Street, Suite 306 

 Harrisburg, PA 17101 

 Attorney for Appellant 
 William P. O'Malley, Esq. (ARGUED) 

 Assistant District Attorney 

 Lackawanna County Courthouse 

 200 N. Washington Avenue 

 Scranton, PA 18503 

 Attorney for Appellees 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

Edward Coss ("Coss" or "appellant") urges us to reverse 

the District Court's denial of his motion for habeas corpus 

relief filed pursuant to 28 U.S.C. S 2254. Coss argues that 

his counsel's failure to subpoena certain witnesses to testify 

at his trial constitutes ineffective assistance of counsel and 

that the District Court erred in failing to so rule. For the 

reasons stated below, we will reverse the District Court's 

denial of Coss' ineffective assistance claim and remand to 

the District Court to issue a conditional writ of habeas 

corpus. 

I. Facts1 

On June 25, 1986, Coss, aged 17, attended a party at the 

home of his sister, Carol Ann Frank. Also in attendance 

were Coss' brothers, Jimmy and Bobby, Coss' girlfriend, 

Sherry Kulick, Carol Ann's roommate, Lisa Frieto, and 

Lisa's brother, George Frieto. Most of the guests at the 

party consumed alcohol. During the course of the party, an 

argument started between Sherry and Lisa, and thereafter, 

caused other arguments to erupt among the other guests. 

These arguments caused Carol Ann to throw everyone out 

of her house. Arguments continued outside of Carol Ann's 

house, including one between Jimmy, who was holding a 

baseball bat, and Coss. As a result of all the noise, Carol 

Ann's landlord called the police. The police arrived at the 

_________________________________________________________________ 

1. Although at his trial Coss' story differed from the facts we recount 

here, the District Court clearly credited this version of events, as does 

Coss implicitly by the very filing of his motion. 

 2 
scene and tried to quell the fights that had developed on 

Carol Ann's front lawn. Coss was arrested for disorderly 

conduct and taken to police headquarters. 

That night, Coss was held in the Lackawanna County 

Detention Facility for underage drinking. Coss damaged the 

cell in which he was placed and was ultimately charged 

with institutional vandalism, criminal mischief, criminal 

trespass, simple assault, theft by unlawful taking or 

disposition, aggravated assault, resisting arrest, terroristic 

threats, and disorderly conduct. 

Coss met with his assigned attorney, RoseAnn McGowan, 

two times before his trial. The District Court made the 

finding of fact that Coss gave McGowan the names and 

addresses of several potential witnesses during their first 

meeting.2 Counsel gave Coss no notice of the trial date but 

contacted him approximately one hour before the trial was 

to begin, at which point Coss drove directly to the

courthouse, stopping only to pick up his brother Jimmy at 

school. 

Coss' trial began on October 30, 1986 and lasted two 

days. At the trial, the officers who arrested Coss, Officers 

Adamitis and Wrobel, testified that when they arrived at the 

scene, individuals began scattering and that they grabbed 

Coss as he was running to his car. They testified that Coss 

_________________________________________________________________ 

2. Coss testified at the evidentiary hearing that in the first meeting, he 

and McGowan discussed "the whole entire story, how it happened, [and] 

who was involved." Coss' second and final meeting with McGowan prior 

to his trial occurred after a severance motion, requesting that the 

charges in connection with the simple assault be severed from those filed 

for the damage to the juvenile detention center, wasfiled in September 

1986. Coss alleges that he and McGowan also discussed the names of 

possible witnesses at this meeting. McGowan did not testify regarding 

her version of what occurred at these meetings. She did testify at the 

evidentiary hearing that Coss did not give her the names of any 

witnesses he wanted her to subpoena, but then admitted that she did 

not specifically remember Coss' case and was instead testifying based on 

her general practice as a public defender. 

The court also noted that, even if Coss did not provide the names to 

McGowan at this time, a cursory review of the police reports would have 

identified the names and addresses of some of these witnesses. 

 3 
was screaming vulgarities and smelled of alcohol. They 

testified that, after being grabbed, Coss began pushing 

Officer Wrobel and was then arrested. They also testified 

that as Officer Adamitis attempted to grab Coss' brother 

Bobby, Coss punched Officer Adamitis in the face. This 

punch is the basis for Coss' simple assault charge, which 

is the charge at issue in this appeal. Finally, Officer Wrobel 

testified that an individual named George also hindered 

their attempts to arrest Bobby. 

The only witnesses to testify on Coss' behalf were Coss 

and Jimmy.3 They testified that, on the night in question, 

they were in their sister's driveway, along with their brother 

Bobby, and had been there no more than fifteen minutes 

when two police officers arrived and began to assault Bobby 

and Coss. Coss stated that there was no party at Carol 

Ann's house that night, that he had not been drinking, that 

he did not curse or punch anyone, and that he did not 

know who the officer was referring to when he stated that 

an individual named George was at the scene. Jimmy 

corroborated this story, stating that there was no party at 

Carol Ann's, that they were only at Carol Ann's house to 

give her a camera, that he had not been drinking, and that 

Coss did not hit a police officer. 

The charges ultimately presented to the jury were 

institutional vandalism and criminal mischief, simple 

assault, resisting arrest, and disorderly conduct. The jury 

convicted Coss of institutional vandalism, criminal

mischief, and simple assault.4 Coss was sentenced on 

January 30, 1987, receiving six months to one year on the 

simple assault charge and six months to one year on the 

institutional vandalism charge. The simple assault and 

institutional vandalism/criminal mischief sentences ran 

consecutively. Coss has already served his sentence for 

_________________________________________________________________ 

3. McGowan did not suggest that Jimmy testify. Instead, Coss, on his 

own initiative, brought Jimmy to the trial and asked him to testify. 

McGowan admitted that she never subpoenaed, interviewed, or prepared 

Jimmy. 

4. The institutional vandalism and criminal mischief result from Coss' 

destruction of the detention cell and are not related to Coss' interaction 

with the police outside of Carol Ann's house. 

 4 
these convictions. Presently, he is serving a sentence based 

on charges from a 1990 conviction, unrelated to his 1986 

convictions. Although he has served the term for the 

assault charge, Coss urges that his claim is not moot 

because the assault charge was used to enhance the 

sentence from a 1990 conviction for which he is still being 

punished. 

II. Procedural Posture 

On September 15, 1994, Coss filed a pro se petition for 

writ of habeas corpus pursuant to S 2254. Cossfiled an 

amended petition on November 29, 1995, and a Second

Petition for Writ of Habeas Corpus on November 7, 1996. In 

the petition, Coss claimed that he was denied his Sixth 

Amendment right to effective assistance of counsel based 

on, among other things, counsel's failure to subpoena any 

of the witnesses he requested.5 

On April 20, 1998, an evidentiary hearing was held to 

address Coss' ineffective assistance of counsel claims. At 

the hearing, each of the witnesses that Coss stated he had 

identified to counsel, namely, Carol Ann, Bobby, Sherry, 

and George, testified that McGowan never contacted them 

regarding Coss' trial and that Coss did not strike any police 

officer. Bobby, Sherry, and George testified that the first 

thing that the police did upon arrival was approach Coss 

and place him in the back of one of the police cars. They 

testified that the police then chased after Bobby, at which 

point George jumped on the back of one of the officers to 

try to hinder his attempt to arrest Bobby. Thus, according 

to these witnesses' testimony, Coss was in the police car 

the entire time the police attempted to arrest Bobby. 

According to the District Court, "McGowan's recollection of 

the case [at the evidentiary hearing] was somewhat sketchy."6 

_________________________________________________________________ 

5. Coss also alleged that his counsel was ineffective for empaneling two 

jurors adverse to Coss' interests, failing to have the institutional 

vandalism and criminal mischief charges dismissed, and failing to file 

post-trial motions. The District Court dismissed these other bases of 

ineffective counsel and Coss does not appeal their dismissal. 

6. From a review of the evidentiary hearing transcript, we agree with the 

District Court's characterization of McGowan's memory of this case. 

McGowan was asked the following at the evidentiary hearing: 

 5 
She conceded during the hearing that she did not 

investigate the events surrounding Coss' arrest, electing not 

to dispatch her investigator to interview any of the 

witnesses at issue, and defended her actions by stating that 

"Coss must have told her not to subpoena them." Dist. Ct. 

Op. at 16 (June 10, 1998). 

Following the hearing, the District Court denied Coss' 

ineffective assistance of counsel claims. The court held 

that, although McGowan's failure to subpoena these 

witnesses "fell below an objective standard of 

reasonableness," Coss failed to prove that he was 

prejudiced by McGowan's failure because the verdict would 

_________________________________________________________________ 

 Q. Ms. McGowan, is your testimony, today, base d on actual 

 recollection of this particular case, the Coss case, or are you 

 testifying, based upon your general practice, as a Public Defender, 

 when you were employed in the Public Defender's Office? 

 A. It would -- it would be in part, yes, and in part, no. Because 

 certain portions that I've responded to, I have direct 

recollection. As 

 I said, I have direct recollection -- once I looked at the 

sentencing 

 report, I had direct recollection, exactly, what had transpired. I 

 mean, once Mr. Coss told Judge Cottone, according to the 

 transcript, that he was thinking about an appeal, but they were 

 telling him this, and then I just -- I recalled. I do recall 

distinctly, 

 exactly, that they -- the they . . was advising him this way, and 

he 

 would not listen to me, okay? When we wanted tofile the Post-trial 

 Motions on that, he did not want them. . . . That is direct 

 recollection. Now, the other stuff may be general. 

 . . . . 

 Q. Ms. McGowan, what I'm asking you about is, do you, 

 specifically, remember having this conversation with Eddie Coss 

 about these witnesses or is your testimony that this is how you 

 normally conduct yourself? 

 A. No, no. No, no, no, it wouldn't be. I would have asked him 

 what about these people, what about these, what about these? You 

 know, what were they doing there or how are they related to this? 

This questioning proceeds, with McGowan answering the questions 

regarding her failure to subpoena the witnesses in the form of what she 

"would have" done or what Coss "must have" said, as opposed to telling 

the court what she "did" or what Coss "said." 
 6 
not have been different given the inconsistency in the 

accounts told by Coss and his brother on the one hand, 

and the witnesses and the police on the other. Coss appeals 

this decision of the District Court, arguing on appeal that 

the District Court erred in its application of the prejudice 

prong of the ineffective assistance of counsel test as stated 

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

III. Jurisdiction 

Before proceeding to the merits of Coss' ineffective 

counsel claim, we will first review whether the District 

Court had subject matter jurisdiction over this habeas 

petition. Section 2254 confers jurisdiction on United States 

district courts to entertain petitions for habeas corpus relief 

only from persons who are "in custody" in violation of the 

Constitution or laws or treaties of the United States. The 

Supreme Court has interpreted S 2254 as mandating that 

the petitioner be "in custody" pursuant to the conviction or 

sentence he seeks to attack at the time his petition is filed. 

See Carafas v. LaVallee, 391 U.S. 234 (1968). A habeas 

petitioner does not remain "in custody" under a conviction 

"after the sentence imposed for it has fully expired, merely 

because of the possibility that the prior conviction will be 

used to enhance the sentences imposed for any subsequent 

crimes of which he is convicted." Maleng v. Cook, 490 U.S. 

488, 492 (1989) (per curiam). A petitioner does, however, 

satisfy the "in custody" requirement for federal habeas 

jurisdiction when he asserts a challenge to a sentence he is 

currently serving that has been enhanced by the allegedly 

invalid prior conviction. Id. at 493. Moreover, in United 

States v. Tucker, 404 U.S. 443 (1972), the Supreme Court 

held that a prisoner could attack in a federal habeas 

proceeding an allegedly unconstitutional conviction, even if 

he has served in entirety the sentence resulting from the 

conviction, if that conviction had an effect on a present 

sentence. See also Young v. Vaughn, 83 F.3d 72, 76 (3d Cir. 

1996) (holding that "a prisoner may attack his current 

sentence by a habeas challenge to the constitutionality of 

an expired conviction if that conviction was used to 

enhance his current sentence"). 

 7 
In this case, although Coss has already served the 

sentence resulting from the allegedly unconstitutional 1986 

convictions, he is currently serving a sentence for an 

unrelated, 1990 conviction in the Court of Common Pleas 

of Lackawanna County for aggravated assault. Coss alleges 

that the sentence from his 1990 conviction was adversely 

affected by the 1986 assault conviction. The sentencing 

judge did, in fact, refer to Coss' 1986 conviction for 

assaulting a police officer in sentencing him to the top of 

the standard range for his 1990 conviction. Coss is thus 

attacking his prior conviction in an attempt to have his 

current sentence, which relied on his prior conviction, 

reevaluated. The District Court therefore appropriately 

construed Coss' petition as challenging the 1990 conviction 

for aggravated assault rather than his expired conviction, 

see id. at 73, and properly concluded that it had 

jurisdiction over his S 2254 motion petition. Id. We have 

appellate jurisdiction pursuant to 28 U.S.C. SS 1291 & 

2253. 

IV. Exhaustion 

Absent a valid excuse, a habeas petitioner must present 

all federal claims to the state courts. 28 U.S.C.S 2254(b); 

see also Rose v. Lundy, 455 U.S. 509 (1982). "The 

exhaustion requirement ensures that state courts have the 

first opportunity to review federal constitutional challenges 

to state convictions and preserves the role of the state 

courts in protecting federally guaranteed rights." Evans v. 

Court of Common Pleas, Delaware County, Pa., 959 F.2d 

1227, 1230 (3d Cir. 1992) (citing O'Halloran v. Ryan, 835 

F.2d 506, 509 (3d Cir. 1987)). Of course, "[i]nexcusable or 

inordinate delay by the state in processing claims for relief 

may render the state remedy effectively unavailable" and 

exhaustion will be excused. Wojtczak v. Fulcomer, 800 F.2d 

353, 354 (3d Cir. 1986). 

Prior to filing his S 2254 petition, Coss had a petition 

challenging his 1986 conviction pending under 

Pennsylvania's Post Conviction Hearing Act (PCHA), 42 Pa. 

Cons. Stat. S 9541, et seq. (amended 1988), for 

approximately seven years without any activity. Under 

these circumstances, the District Court excused the

 8 
exhaustion requirement and we can find no fault with that 

determination. Appellant has not, however, presented to the 

Pennsylvania state courts his claim that the invalid 1986 

conviction was used to enhance his subsequent conviction 

in 1990, the conviction being challenged by the underlying 

habeas petition. Nonetheless, we conclude that this is not 

a situation in which the District Court was faced with a 

mixed petition necessitating a dismissal under Rose v. 

Lundy. As was made clear by the Pennsylvania Supreme 

Court in Commonwealth v. Ahlborn, 699 A.2d 718 (1997), 

collateral relief is not available under either the Post 

Conviction Hearing Act or under the common law remedies 

of state habeas corpus or coram nobis for a petitioner who 

is not currently serving a sentence of imprisonment for the 

conviction he wishes to challenge, even if petitioner 

contends that collateral consequences stem from that 

conviction. Accordingly, insofar as state law clearly 

forecloses state court review of Coss' "collateral 

consequence" claim, the District Court properly excused 

exhaustion and entertained the claim on its merit. 7 See, 

e.g., Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 

1986) (citing Duckworth v. Serrano, 454 U.S. 1, 3 (1981) 

(per curiam)). 

V. Applicable Law 

Because Coss submitted filings to the District Court both 

before and after the enactment of the Antiterrorism and 

Effective Death Penalty Act of 1996 ("AEDPA"), we think it 

necessary to briefly discuss the law governing this action. 

We conclude that the amendments brought about by 

AEDPA do not apply to this case as Coss' original petition 

and amendment were both filed prior to AEDPA's effective 

date. See Lindh v. Murphy, 521 U.S. 320 (1997); 

McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999); United 

States v. Skandier, 125 F.3d 178 (3d Cir. 1997). Though 

Coss did file a "Second Petition" in November 1996, i.e., 

_________________________________________________________________ 

7. We view Commonwealth v. Ahlborn not as erecting a "procedural bar," 

but as a statement that there is no available state remedy for the claim 

that the present sentence was incorrectly enhanced by an invalid prior 

conviction. 

 9 
after the enactment of AEDPA, that petition did not add 

new claims, but merely waived, as was permitted by the 

District Court's order of October 23, 1996, those claims 

presented in his original petition that were determined by 

the District Court to be unexhausted. See, e.g., Rose, 455 

U.S. at 510 (a petitioner may amend his petition to delete 

unexhausted claims); McMahon v. Fulcomer, 821 F.2d 934 

(3d Cir. 1987) (same). 

Amendments to applications for writs of habeas corpus 

are statutorily provided for by 28 U.S.C. S 2242, which 

states that such petitions "may be amended or 

supplemented as provided in the rules of procedure 

applicable to civil actions." See Rule 11 of the Rules 

Governing Section 2254 Cases; see also Calderon v. 

Ashmus, 523 U.S. 740, -- , 118 S. Ct. 1694, 1700 (1998) 

(Breyer, J., concurring) (amendments to habeas petitions 

under Rule 11 are governed by Fed. R. Civ. P. 15 unless 

otherwise expressly governed by the statute). In accordance 

with Rule 15(a), a party may amend a pleading after a 

responsive pleading has been served "by leave of court." 

Fed. R. Civ. P. 15(a). Moreover, pursuant to Rule 15(c)(2) of 

the Federal Rules of Civil Procedure, if the claim asserted in 

the amended petition "arose out of the conduct, 

transaction, or occurrences set forth" in the original 

petition, the amendment of the pleading relates back to the 

date the original petition was filed. As noted previously, the 

claims in Coss' second amended petition not only "arose 

out of the conduct" set forth in the original habeas petition 

and amendment, they were the same claims, minus those 

that were unexhausted. In fairness, we view his petition 

filed after AEDPA as tantamount to a further amendment to 

his initial filing, which he filed at the direction of the 

District Court, expressing Coss' intention to proceed with 

his exhausted claims. Therefore, we view all the claims 

raised as having been asserted in a petition filed prior to 

AEDPA's enactment date. Accordingly, under pre-AEDPA 

habeas requirements, Coss was obligated to obtain a

certificate of probable cause in order to appeal from the 

District Court's judgment dismissing his habeas corpus 

petition. 

The pre-AEDPA certificate of probable cause did not

require specification of issues and placed the entire case 

 10 
before the court of appeals. See Ramsey v. Bowersox, 149 

F.3d 749, 759 (8th Cir. 1998); Herrera v. United States, 96 

F.3d 1010, 1012 (7th Cir. 1996); see also United States ex 

rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978). The postAEDPA certificate of appealability, on the other hand, 

requires specification as to which issues satisfy the 

standard set forth in 28 U.S.C. S 2253(c)(2), i.e., those 

issues for which the applicant has made a substantial 

showing of the denial of a constitutional right. In the 

instant case, rather than granting appellant a certificate of 

probable cause to appeal, the District Court granted Coss 

a certificate of appealability limited to his claim that 

counsel rendered constitutionally ineffective assistance by 

failing to subpoena witnesses on the assault charge. Under 

pre-AEDPA law we determined that it is inappropriate for a 

District Court to prescribe the issues or issue which may be 

considered in support of or in opposition to a judgment, 

Hickey, 571 F.2d at 766, and appellant is free to choose 

which claims to assert on appeal. In this case, however, 

because Coss, through his attorney, limited his request for 

a certificate of appealability on appeal to the one issue 

he believed to be of "arguable merit," that is, the

ineffectiveness of counsel claim at issue, we see no reason 

to extend our review beyond the merits of that claim. 

Moreover, given our disposition of the appeal, we see little 

difference an expanded review would make. 

VI. Discussion 

At issue is the District Court's application of the

prejudice prong of the Strickland ineffective assistance of 

counsel test. Since Coss' claim involves the legal 

component of an ineffective assistance of counsel claim, we 

exercise plenary review. See Parrish v. Fulcomer, 150 F.3d 

326, 328 (3d Cir. 1998). 

In order to obtain relief based on an ineffective assistance 

of counsel claim, a defendant must not only show that his 

counsel's performance was objectively unreasonable, but 

also that it prejudiced his case. See Strickland v.

Washington, 466 U.S. at 692. The District Court denied 

Coss habeas relief, despite its finding that counsel's failure 

to subpoena the witnesses at issue was objectively 

 11 
unreasonable, because Coss had failed to demonstrate 

prejudice.8 

To prove prejudice under the second prong of the 

Strickland test, a defendant must "establish a reasonable 

probability -- one sufficient to undermine our confidence in 

the outcome -- that the jury's verdict would have been 

different if not for counsel's errors." United States v. Gray, 

878 F.2d 702, 712 (3d Cir. 1989). The District Court 

reached its conclusion that Coss had failed to demonstrate 

prejudice based on the fact that the witnesses who testified 

at the evidentiary hearing painted a completely different 

picture of the incident leading to Coss' arrest from that told 

by Coss and Jimmy at trial. The testimony at the 

evidentiary hearing made clear that, on the night of the 

incident, Coss had been drinking at a party that had to be 

broken up by the police. This version of events is a far cry 

from Coss' trial testimony of a calm, quiet evening

sabotaged by two rogue police officers. Assuming that, 

regardless of counsel's error, Coss still would have testified, 

and would have testified in the way that he did, the District 

Court reasoned that the failure to call these witnesses was 

not prejudicial to Coss, as their testimony, if offered, would 

only have suggested to the jury that Coss was lying on the 

witness stand and that Coss was drunk and excitable

during the incident. Because this case turned on a 

credibility determination between Coss and the officers, the 

District Court reasoned that Coss could not have been 

prejudiced by counsel's failure to call witnesses who only 

would have contradicted Coss' version of the facts,

destroying his credibility with the jury.9 The District Court 

_________________________________________________________________ 

8. We are not asked to review the issue of the reasonableness of 

counsel's actions as justifiable or strategic decisions. Here, Coss' 

attorney claimed no tactical merit to her failures except to say that she 

must have done what Coss wanted in not subpoenaing witnesses; nor 

does the government contest the District Court'sfinding that her 

conduct "fell below objective standards of reasonableness." 

9. The District Court also considered that Carol Ann and Bobby's 

testimony would have been suspect since they are Coss' siblings, that 

Sherry's testimony would have been suspect since she was Coss' 

girlfriend, and that George Frieto's testimony, while seemingly beneficial 

to Coss in that he testified that it was he who attacked the officer, is 

also 

not inconsistent with the officer's testimony that an individual named 

George, in addition to Coss, tried to hinder Bobby's arrest. 

 12 
thus concluded that the outcome of the trial would have 

been no different, that is, Coss still would have been found 

guilty of assaulting the officer, absent counsel's failure. 

We disagree with the District Court's reasoning. While it 

is unlikely that a court can determine with certainty the 

result of the proceedings absent counsel's error, we must 

examine the "breadth of the evidence" and examine whether 

it is sufficient to undermine our confidence that the case 

would have come out in the way that it did absent counsel's 

errors. United States v. Kauffman, 109 F.3d 186, 191 (3d 

Cir. 1997). Having examined the breadth of the evidence in 

this case, including the evidentiary hearing transcript, we 

conclude that there is a reasonable probability that, had 

counsel subpoenaed the witnesses at issue, Coss would not 

have been found guilty of assaulting the officer. 

As a result of counsel's failure to conduct an 

investigation into the events surrounding Coss' arrest on 

the night of June 25, 1986, only Coss and his younger 

brother Jimmy testified in Coss' defense. It cannot be 

doubted that Coss and Jimmy decided to try to conceal 

what had occurred that evening -- that is, the fact that on 

the night in question they were drinking, underage, at a 

party -- during their testimony. Regardless of Coss' 

motivation to lie about the context of the incident provoking 

his arrest, he and Jimmy testified that Coss did not assault 

a police officer. At the evidentiary hearing held to 

investigate Coss' ineffective counsel claims, Carol Ann, 

Bobby, Sherry, and George all testified that there was a 

party at Carol Ann's house, that the people at the party 

were consuming alcohol, that a fight broke out, and that 

the police came to break up the fight. Most importantly, 

however, Carol Ann, Bobby, Sherry, and George testified 

consistently that Coss did not punch a police officer, and 

Bobby, Sherry, and George testified consistently that 

George jumped on a police officer's back when the officer 

assaulted Bobby. Finally, they also testified consistently 

that, at the time the officers arrested Bobby, which, 

according to the officers, is the time that Coss punched the 

officer, Coss was sitting in the police car with the door shut.10 

_________________________________________________________________ 

10. It is important to note that all witnesses at the evidentiary hearing 

were sequestered, thus bolstering the credibility of these witnesses' 

convincingly consistent versions of the critical events. 

 13 
Thus, although the witnesses' rendition of what happened 

on the night in question conflicts in large part with Coss' 

original version of the story, all accounts of the evening are 

consistent in their most significant respect, the fact that 

Coss did not commit the assault alleged. 

In our view, the District Court employed too narrow an 

approach in analyzing Coss' claim of prejudice. When it 

reached the prejudice prong of the Strickland test, the 

District Court stated that " `[p]rejudice' to a defendant from 

the failure to call witnesses should be assessed in the 

context of the other testimony presented by the defense 

witnesses." Dist. Ct. Op. at 18 (June 10, 1998) (emphasis 

added). The District Court then asked whether the result of 

this trial would have been any different if, instead of only 

Coss and Jimmy testifying in Coss' defense, Coss, Jimmy, 

and the other four witnesses had testified in Coss' defense, 

assuming not only that Coss would still testify, but would 

tell the tale that he did at trial. 

Strickland requires that a court consider"the totality of 

the evidence before the judge or jury" in determining 

prejudice. 466 U.S. at 695. It does not require, however, the 

court to ignore the way in which the "totality" would 

present itself if counsel's conduct had been objectively 

reasonable. Strickland also recognizes that some errors are 

so great that a court cannot merely recall the proceedings 

as they occurred with counsel's error, and then, as the 

District Court did here, merely add the evidence not 

presented to determine the alternative outcome of the trial 

absent counsel's mistake. "Some errors will have had a 

pervasive effect on the inferences to be drawn from the 

evidence, altering the entire evidentiary picture, and some 

will have had an isolated, trivial effect." Id. at 696-97. 

Here, counsel's error had a pervasive effect, altering the 

entire evidentiary picture at trial. The testimony of the 

witnesses not presented should not be considered as merely 

a hypothetical supplement to the evidence offered, with the 

remainder of the trial presumed to unfold as it actually did. 

Considering the totality of the evidence, we believe that, 

had counsel subpoenaed the witnesses and heard from

them their version of the events, including the fact that, 

although the police were partially correct in their

 14 
allegations, it was George, not Coss, who assaulted the 

officer, she would not have presented at trial all versions of 

the evening's events, including Coss' clearly fictional 

rendition. When we assume the reasonably probable 

outcome without counsel's ineffectiveness, we must also 

assume a scenario that envisions counsel's acting 

effectively.11 The District Court should have realized and 

considered the different course that the trial would 

probably have taken had counsel acted in an objectively 

reasonable manner by subpoenaing and interviewing these 

witnesses, and then presenting a defense consistent with 

their testimony. If counsel had interviewed these witnesses, 

we believe that there is a reasonable probability that Coss 

would not have testified at all, or that Coss would have 

testified consistently with the other witnesses, thus 

avoiding the contradictory testimony that troubled the 

District Court. 

We also note that recent Supreme Court jurisprudence 

has provided additional insight into the "outcome" test, 

which suggests that, in determining whether a defendant 

was prejudiced by counsel's ineffectiveness, we should also 

inquire whether counsel's conduct rendered the verdict 

"unreliable." Because the outcome test can produce 

untoward results depending on the facts, the Supreme 

Court has emphasized that the prejudice inquiry, at its 

core, involves concepts of reliability and fairness. In 

Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme 

Court was faced with the question of "whether counsel's 

failure to make an objection in a state criminal sentencing 

proceeding -- an objection that would have been supported 

by a decision which subsequently was overruled -- 

constitutes `prejudice' " under Strickland. 506 U.S. at 366. 

The court of appeals, in a divided opinion, had upheld 

_________________________________________________________________ 

11. In fact, as pointed out by appellant, if counsel had put both Coss 

and the witnesses at issue on the stand and presented an inconsistent 

theory of defense, that in itself could constitute ineffective assistance. 

See Bland v. California Dept. of Corrections, 20 F.3d 1469, 1479 (9th Cir. 

1994). Of course, counsel cannot rely on Bland to say that it was proper 

for her not to offer the witnesses' testimony in her attempt to present a 

consistent theory of defense, since she did not interview these witnesses 

to know of any inconsistency. 

 15 
defendant's ineffective counsel claim, even though it had 

two years earlier overruled the decision that was the basis 

for defendant's ineffectiveness claim; thus, the omitted 

objection that was the basis of counsel's alleged 

ineffectiveness would have been overruled under current 

law.12 Fretwell v. Lockhart , 946 F.2d 571 (8th Cir. 1991), 

rev'd, 506 U.S. 364 (1993). The majority reasoned that 

defendant was entitled to the circuit's case law that was in 

effect at the time of his sentencing because, if counsel had 

made the objection at issue at that time, the trial court 

would have had to sustain it and the outcome of the

proceeding would have been different. Id. at 577. The 

Supreme Court reversed this decision, stating that the 

prejudice component of the Strickland test focuses not just 

on whether the outcome of a proceeding would have been 

different but for counsel's ineffectiveness, but on"whether 

counsel's deficient performance renders the result of the 

trial unreliable or the proceeding fundamentally unfair." 

Fretwell, 506 U.S. at 372. "Unreliability or unfairness does 

not result if the ineffectiveness of counsel does not deprive 

the defendant of any substantive or procedural right to 

which the law entitles him." Id. The Court concluded that, 

despite the fact that defendant was not reaping the benefit 

of the law in effect at the time of his sentencing, since 

current case law held that a defendant was not entitled to 

the particular objection at issue, defendant had not been 

denied any substantive or procedural right to which the law 

entitles him and "[t]he result of the sentencing proceeding 

in the present case was neither unfair nor unreliable." Id. 

at 371. In so honing and clarifying the prejudice test, the 

_________________________________________________________________ 

12. Defendant argued that his counsel should have made an objection 

based on Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985) (holding that 

a death sentence is unconstitutional if it is based on an aggravating 

factor that duplicates an element of the underlying felony). The Eighth 

Circuit overruled Collins in light of the Supreme Court's decision in 

Lowenfield v. Phelps, 484 U.S. 231 (1988) (holding that a death sentence 

was not invalid on the ground that the sole aggravating circumstance 

found by the jury was identical to an element of the capital crime of 

which defendant was convicted). See Perry v. Lockhart, 871 F.2d 1384 

(8th Cir. 1989) (overruling Collins in light of Lowenfield). 

 16 
court harkened back to similar reasoning in Nix v. 

Whiteside, 475 U.S. 157 (1986).13 

While in both Nix v. Whiteside and Lockhart v. Fretwell 

the application of concepts of reliability and fairness caused 

the court to conclude that a defendant was not prejudiced 

even though the outcome would have been different absent 

counsel's alleged ineffectiveness, we find the reasoning of 

these opinions to be helpful nonetheless here, where in the 

process of examining the probable effect of counsel's error, 

the District Court did not consider whether the proceeding 

reached an unreliable, unfair result. See Fretwell, 946 F.2d 

at 579 (dissenting opinion). 

Our analysis of this aspect of the second prong of 

Strickland is not unlike our ruling in Kauffman, 109 F.3d 

186, in which we held that defense counsel was ineffective 

for failing to investigate an insanity defense for a defendant 

when counsel had received a letter from a doctor 

supporting such a defense. Counsel claimed that he did not 

pursue this defense, and instead encouraged his client to 

plead guilty, because he viewed the insanity defense as 

inconsistent with defendant's conduct that demonstrated 

that he knew and appreciated the criminal nature of his 

acts. The district court had found no ineffectiveness and no 

prejudice because it concluded that the outcome would 

probably have been the same -- Kauffman would have been 

found guilty -- with or without counsel's alleged 

ineffectiveness. On appeal, however, we noted that"the 

breadth of the evidence adduced at the evidentiary hearing 

_________________________________________________________________ 

13. In Nix v. Whiteside, the defendant argued that he received ineffective 

assistance of counsel because his counsel refused to aid him in 

presenting perjured testimony. Although it seems likely that such 

conduct on the part of counsel could have an effect on the trial's 

outcome, the Court held as a matter of law that "counsel's conduct 

complained of here cannot establish the prejudice required for relief 

under the second strand of the Strickland inquiry." Nix, 475 U.S. at 175. 

The Court reasoned that, under Strickland, the "benchmark" of an 

ineffective-assistance claim is the fairness and reliability of the 

adversary 

proceeding, and that "[w]hether he was persuaded or compelled to desist 

from perjury, Whiteside has no valid claim that confidence in the result 

of his trial has been diminished by his desisting from the contemplated 

perjury." Id. 

 17 
is sufficient to undermine our confidence that Zorbaugh 

would have advised his client to plead guilty rather than 

proceed to trial and that Kauffman would have accepted 

that advice." Id. at 191. Defendant was prejudiced by 

counsel's conduct because there was a reasonable 

probability "that the outcome of these proceedings would 

have been different had his counsel not failed in this duty 

to investigate the evidence obtainable from various health 

professionals." Id. In essence, we used our own skepticism 

regarding the reliability and fairness of the result to inform 

our determination as to the outcome. 

While we do not wish to overstate the applicability of Nix 

and Fretwell to the instant situation -- since they are 

clearly distinguishable -- nevertheless, they act as a 

reminder that the concept of reliability and fairness should 

serve as a guide as we make the prejudice determination. 

In determining whether there is a reasonable probability 

that the outcome would have been different absent 

counsel's ineffectiveness, the district court should look at 

whether the outcome that did occur was reliable and fair in 

light of all the evidence before it. In Kauffman, that 

evidence demonstrated that the defendant may well have 

been totally psychotic and therefore not guilty; similarly, 

here, that evidence tended to show that Coss was innocent 

of the assault charge. The results reached in the trial were 

unreliable and the outcome, had counsel been effective, 

may well have been different. We think that it is helpful to 

consider the reliability and fairness of the result reached as 

an aid to reaching the appropriate conclusion as to the 

probable outcome had counsel's ineffectiveness not been a 

factor. 

Thus, we believe that counsel's failure to subpoena these 

witnesses who would have all testified as to Coss' innocence 

as to the simple assault renders the District Court's view 

that the outcome of the trial would have been the same 

with or without these witnesses to be flawed. In light of the 

amount of exculpatory evidence that was in fact available, 

yet not presented to the jury, we believe that counsel's 

conduct made the result of Coss' trial fundamentally unfair 

and unreliable, and the outcome would have likely been 

different if the witnesses had been called. Thus, Coss has 

 18 
met his burden under Strickland, and subsequent Supreme 

Court case law clarifying Strickland, to prove that he was 

prejudiced by his counsel's failure to subpoena the

witnesses at issue. 

VII. Relief 

Having determined that Coss' conviction for assault is 

constitutionally defective, we must determine what habeas 

relief should be afforded to him. We would normally

remand this issue for determination by the District Court, 

but due to our concern for the defendant's continued 

confinement based on an unconstitutional conviction -- 

assuming the assault conviction did in fact play a role in 

enhancing the sentence he now serves -- and because the 

issue is one that has not previously received specific 

attention in the courts, we will determine the relief we will 

provide, requiring that the writ be conditioned as we deem 

appropriate. 

We must decide between the two apparent choices for

relief: condition the writ on the state's granting Coss a 

retrial on the 1986 assault charge and, if the result of the 

retrial differs from the previous result, a subsequent 

resentencing on Coss' current conviction, removing from 

Coss' current sentence any enhancement based on the

prior unconstitutional conviction; or, condition the writ on 

the state's resentencing of Coss for his current conviction 

without any enhancement due to the prior unconstitutional 

conviction.14 While a retrial is the usual relief granted in a 

habeas proceeding based on ineffective assistance of 

counsel in connection with a current conviction, the 

Supreme Court precedent has required only resentencing 

absent consideration of the prior, unconstitutional

conviction as the proper relief in this situation. See Tucker, 

404 U.S. 443. For the reasons stated herein, we conclude 

that the proper relief under these circumstances is the 

latter of these two options, resentencing absent 

consideration of the unconstitutional conviction. 

_________________________________________________________________ 

14. In his various habeas petitions, Coss has consistently sought a new 

trial and a new sentencing hearing. 

 19 
The writ of habeas corpus is a civil remedy against

unconstitutional confinement. See Fay v. Noia, 372 U.S. 

391, 423-24 (1963). It is not "a stage of the state criminal 

proceedings" or "an appeal therefrom." Id. at 424. Thus, in 

an important way, habeas proceedings are independent 

from the criminal proceedings that have already occurred, 

serving only to judge and to correct that which results in 

unconstitutional confinement. In many cases, the issue of 

unconstitutional confinement is unrelated to the question 

of guilt or innocence. It may, as in the case at hand, relate 

to a current sentence that has been enhanced by an 

expired, yet unconstitutional conviction. A sentence which 

is enhanced based on a prior unconstitutional conviction, 

although appearing more attenuated from the actual wrong 

than a person's incarceration following an unconstitutional 

trial, is nonetheless unconstitutional confinement and must 

be corrected. See Tucker, 404 U.S. at 449. 

We are guided by the Supreme Court decision in Tucker 

in which, as here, the Court granted habeas relief based on 

a prior conviction that had been served in full, but that had 

an enhancement effect on the petitioner's current sentence. 

The Court found the petitioner's current confinement 

unconstitutional because it was based, in part, on a prior 

conviction resulting from a trial at which he was denied his 

constitutional right to counsel. Without any consideration 

of the petitioner's probable guilt or innocence as to the 

prior offense, the Court ordered the writ conditioned upon 

petitioner's resentencing absent any consideration of the 

prior, unconstitutional conviction. Since the prior

conviction was found unconstitutional, it could have no 

impact on the petitioner's current sentence. See id. at 447- 

48 (stating that the real question is not whether the 

outcome of the earlier prosecutions would have been

different if Tucker had counsel, "but whether the sentence 

. . . might have been different if the sentencing judge had 

known that at least two of [Tucker's] previous convictions 

had been unconstitutionally obtained"). 

In Maleng v. Cook, the Court was faced with the issue of 

whether the petitioner was "in custody" in order to confer 

habeas jurisdiction such that the petitioner could challenge 

his sentence, enhanced by an allegedly unconstitutional, 

 20 
expired conviction. The Court limited itself to the narrow 

issue of custody, but expressly recognized the possibility of 

challenging an expired conviction in connection with an 

attack on a current sentence enhanced by the prior 

conviction. In this case, however, unlike Tucker, the prior 

conviction was challenged based on the court's failure to 

hold a competency hearing. 

We have since applied the reasoning in Tucker and 

Maleng, holding in Clark v. Commonwealth, 892 F.2d 1142 

(3d Cir. 1989), that habeas relief was available to a 

petitioner whose current sentence was based in part on 

prior convictions tainted by the denial of his constitutional 

right to due process. Consistent with the relief granted in 

Tucker, we granted the petitioner's writ conditioned on 

resentencing for the subsequent offense absent 

consideration of the prior conviction. Id. at 1149 n.10 

(stating that the only relief available under Tucker is 

resentencing). In Young v. Vaughn, we again applied the 

reasoning of Tucker, holding that the petitioner could 

challenge his prior conviction, held unconstitutional due to 

ineffective assistance of counsel, if this conviction was used 

to enhance his current sentence.15 Since in Young we were 

addressing only our jurisdiction to hear the habeas

petition, we did not specifically consider what relief was 

appropriate if the petition was successful. 

We see no meaningful distinction between Tucker and its 

_________________________________________________________________ 

15. Other courts have also recognized this type of collateral 

consequences relief and have held, consistent with our decisions in Clark 

and Young, that complete denial of right to counsel, as in Tucker, is not 

the only constitutional violation justifying such relief. See, e.g., Brock 

v. 

Weston, 31 F.3d 887 (9th Cir. 1994) (prior conviction challenged based 

on involuntary and uninformed plea); Tredway v. Farley, 35 F.3d 288 

(7th Cir. 1994) (prior conviction challenged based on involuntary guilty 

plea); Allen v. Collins, 924 F.2d 88 (5th Cir. 1991) (prior conviction 

challenged based on ineffective assistance of counsel); Battle v. Thomas, 

923 F.2d 165 (11th Cir. 1991) (prior conviction challenged based on 

ineffective assistance of counsel); Gamble v. Parsons, 898 F.2d 117 (10th 

Cir. 1990) (prior conviction challenged based on involuntary and 

uninformed guilty pleas); Taylor v. Armontrout, 877 F.2d 726 (8th Cir. 

1989) (prior conviction challenged based on involuntary guilty plea and 

ineffective assistance of counsel on appeal). 

 21 
progeny and the case at hand to cause the relief in this 

case to be any different from that granted in Tucker. Both 

unconstitutional convictions, although expired, provided 

grounds for habeas relief because they resulted in the 

petitioners' serving sentences enhanced thereby, and were, 

thus, unconstitutional. Just as in Tucker, we cannot now 

correct by retrial the unconstitutional incarceration 

resulting from the previous conviction, as that sentence has 

been served in its entirety. Instead, all that we can do is 

provide the state court with the opportunity to void Coss' 

current sentence of the ramifications, if any, resulting from 

the prior unconstitutional conviction. 

Conditioning the writ on resentencing is consistent with 

the mandate in Barry v. Brower, 864 F.2d 294, 301 (3d Cir. 

1988). In Barry, we warned that "[a] habeas court does not 

have power to directly intervene in the process of the 

tribunal which has incorrectly subjected the petitioner to 

the custody of the respondent official. . . . The respect due 

the tribunals of a sovereign state within our federal system, 

however, requires that its courts be given an opportunity to 

correct their own errors." In this case, we will give the 

tribunal which incorrectly subjected him to custody-- 

namely, the sentencing court -- the opportunity to correct 

its error by resentencing Coss, ridding his sentence of the 

unconstitutional taint of his prior conviction. 

We realize that the sentencing court must now assess the 

extent to which the unconstitutional conviction impacted 

the sentence it handed down and resentence without 

including the prior offense in its thinking. While this may 

leave an open issue as to Coss' guilt or innocence of the 

assault, guilt or innocence is not our charge.16 See Herrera 

v. Collins, 506 U.S. 390, 400 (1993) (stating that "federal 

_________________________________________________________________ 

16. It might even be said that our determination here is more probative 

of Coss' actual guilt or innocence of the assault charge than was the 

determination in Tucker. Here, we determine not only that counsel was 

ineffective, but, in determining prejudice, we held that there was a 

reasonable probability that the outcome of Coss' trial would have been 

different such that Coss may well have been found not guilty. No such 

finding was required with the invalid conviction in Tucker, where we 

know little as to his actual commission or guilt of the offense, but 

prohibited its consideration because of its blatant unconstitutionality. 

 22 
habeas courts sit to ensure that individuals are not 

imprisoned in violation of the Constitution -- not to correct 

errors of fact"); Tucker, 404 U.S. at 447-48 ("We need not 

speculate about whether the outcome of the respondent's 

. . . prosecutions would necessarily have been different if he 

had had the help of a lawyer."); S. Rep. No. 80-1526, at 2 

(1948) ("[H]abeas corpus . . . is not a determination of guilt 

or innocence of the charge upon which petitioner was 

sentenced. Where a prisoner sustains his right to discharge 

in habeas corpus, it is usually because some right .. . has 

been denied which reflects no determination of his guilt or 

innocence but affects solely the fairness of his earlier 

criminal trial.").17 Habeas relief serves to rectify conditions 

of unconstitutional confinement. Coss is no longer confined 

for the previous assault conviction. Thus, we are to rid 

Coss' current confinement of its constitutional defect -- 

which the reliance upon his previous conviction represents. 

Doing any more than this oversteps the bounds of our task 

on habeas review.18 

Further, while re-trying Coss' assault would make 

resentencing fully informed, we think this inappropriate 

given our limited role in applying habeas relief, as a retrial 

would have the untoward result of providing Coss with a 

method of attacking, and altering, the outcome of his 

assault trial in a way otherwise unavailable to him through 

direct and collateral review absent this second conviction.19 

_________________________________________________________________ 

17. In fact, the actual innocence inquiry most often comes into play in 

habeas proceedings where a petitioner seeking relief on a potentially 

meritorious constitutional claim faces an otherwise dispositive 

procedural bar to review or relief. In these cases, the petitioner must 

proffer a colorable claim of innocence to defeat the bar. See Herrera v. 

Collins, 506 U.S. 390, 404 (1993). 

18. We have explained previously that federal courts walk a fine line in 

fashioning the appropriate relief on habeas review. See Henderson v. 

Frank, 155 F.3d 159, 168 (3d Cir. 1998) (explaining that the condition 

upon which the writ is issued must be fitted between two principles: 

minimizing intervention into the state criminal process and ensuring the 

cure of all constitutional defects). 

19. Actually, Coss did present his ineffective assistance of counsel claim 

in a collateral challenge to his 1986 convictionfiled pursuant to 

Pennsylvania's Post Conviction Hearing Act. This petition, which served 

 23 
It is one thing to enable a petitioner to attack the 

constitutionality of a prior conviction insofar as it impacts 

a later sentence; it is quite another to let him reach back 

and undo that conviction after the opportunity for 

challenging it on direct appeal and collateral proceedings 

has come and gone. The concept of challenging previous 

convictions as enhancers is a novel use of habeas; we 

should not let it bring about untoward results. See Alan C. 

Smith, Note, More Than a Question of Forum: The Use of 

Unconstitutional Convictions to Enhance Sentences Following 

Custis v. United States, 47 Stan. L. Rev. 1323, 1340 (1995) 

(stating that "the language in Maleng indicates the Court's 

reluctance to let defendants challenge prior convictions in 

the federal habeas forum" and that the "reasoning in Custis 

regarding the importance of finality and the difficulty of 

administering attacks on prior convictions also reveal[s] a 

desire to severely limit these claims"). 

Our view that resentencing on the more recent conviction 

is warranted, rather than a new trial on his 1986 assault 

charge, is also consistent with language in other case law 

discussing this unique habeas posture. While Tucker

appears to be our sole guide as to the conditional relief 

appropriate in these circumstances, the developing 

jurisprudence focusing on these unique circumstances is 

consistent in noting that we are not attacking the expired 

conviction directly. Instead, the prior conviction may only 

be attacked in the "context of " the current sentence. Young, 

83 F.3d at 78 (specifying that a defendant may only attack 

a prior conviction "in the context of a challenge to the 

_________________________________________________________________ 

as justification for the District Court to excuse the exhaustion 

requirement, has yet to be acted upon by the state courts. While Coss' 

petition remains pending, in all likelihood the state courts would refuse 

to entertain it at this late date. See, e.g., Ahlborn, 699 A.2d at 720 

(stating that collateral relief is not available for a petitioner who is 

not 

currently serving a sentence of imprisonment for the conviction he 

wishes to challenge, even if collateral consequences stem from that 

conviction). Nonetheless, our resolution of Coss' habeas claim, and part 

of our rationale for declining to find that a new trial would be the 

appropriate relief here, stems from the fact that doing so would make 

this type of challenge available even if Coss had not raised this issue in 

connection with the review of his 1986 conviction. 

 24 
enhanced sentence for which he is in custody"); Gamble, 

898 F.2d at 118 (interpreting Maleng as precluding a 

defendant from challenging an expired conviction "directly," 

but stating that a defendant may attack a prior 

unconstitutional conviction in the context of its effect on a 

present sentence); Taylor, 877 F.2d at 727 (same); see also 

Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990) 

("That a person happens to be in custody is of course not 

a sufficient reason to rummage through old judgments in 

search of ones that may be invalid. To obtain relief under 

S 2254 the prisoner must show that his current 

confinement violates the Constitution.").20 It is in the 

context of his current sentence that Coss has attacked the 

previous conviction, and it is in that context, and limited to 

that context, that we will require habeas relief to be 

afforded to him. 

Accordingly, we order that a writ shall issue conditioned 

upon Coss' being resentenced without consideration of the 

previous assault conviction. 

VIII. Conclusion 

For the reasons stated above, we will reverse the District 

Court's denial of Coss' habeas petition and remand to the 

District Court with instructions that it order a writ of 

habeas corpus to issue conditioned upon Coss' being

resentenced without consideration of the previous assault 

conviction. 

_________________________________________________________________ 

20. We do not read Brock v. Weston, which did not expressly limit the 

condition of the writ on the petitioner's resentencing, but rather ordered 

the district court "to resolve the petitioner's challenge to [the prior] 

conviction," as inconsistent with our holding here. Instead, we interpret 

Brock as an order to rid the petitioner's current sentence of any 

ramifications from his prior unconstitutional conviction, not as an order 

to retry the petitioner on the expired conviction. 

 25 
ALDISERT, Circuit Judge, concurring in part and dissenting 

in part. 

Several important public policy and social welfare 

considerations divide the panel in this case, the facts of 

which, at first blush, seem very pedestrian, yet the grant of 

habeas corpus relief presents an extremely important 

question that goes to the heart of comity in the relationship 

of federal courts and state sovereignties in habeas corpus 

cases brought under 28 U.S.C. S 2254. In granting the writ, 

the majority denies the Commonwealth of Pennsylvania the 

option of correcting the constitutional infirmity of 

incompetency of counsel by means of new trial. I disagree 

with this result. 

I adhere to the long line of cases in this court that 

typically condition the grant of the writ under S 2254 on 

allowing the state the option, where it is possible, to cure 

the constitutional infirmity. My experience in this court's 

tradition goes back 31 years when I wrote the court's 

opinion in United States ex rel. Crosby v. Brierley, 404 F.2d 

790 (3d Cir. 1968), a Pennsylvania murder case in which 

we determined that the guilty plea was constitutionally 

infirm.1 

The precise issue that occupies our attention was not 

raised by the parties, but rather was injected by the 

majority without briefing or argument. Indeed, Coss did not 

even request the relief he is now receiving. In his Second 

Amended Habeas Corpus Petition, drafted by counsel, Coss 

simply sought a new trial of his 1986 conviction. See Joint 

App. at 19 P 4 ("The above stated issues are meritorious 

and demonstrate that Coss was denied his due process 

right to a fair sentencing hearing and his Sixth (6th) 

Amendment right to effective assistance of counsel. Thus, 

_________________________________________________________________ 

1. Therein we stated: 

 Accordingly, we will vacate the order of the court below and remand 

 the case with the direction that the district court issue a writ of 

 habeas corpus without prejudice to the right of the Commonwealth 

 of Pennsylvania to undertake appropriate action in the further 

 prosecution of this matter. 

404 F.2d at 802. 

 26 
Coss is entitled to a new trial and sentencing hearing with 

regard to his institutional vandalism, criminal mischief, and 

simple assault convictions."). 

I. 

This melancholy chronicle of events started with a simple 

assault and battery that took place on June 25, 1986, in 

the small city of Dickson in Lackawanna County, 

Pennsylvania, when the local police were called to a high 

school graduation party at the home of Carol Ann Frank, 

the sister of the then-17 year old Appellant, Edward Coss. 

It seems that Carol Ann's roommate, one Lisa Frieto, got 

into a hair pulling contest with another party goer, one 

Sherry Kulick, and thereafter the revelers, all of whom were 

juiced up, apparently picked sides and a grand donnybrook 

was had by all until Carol Ann, the hostess, a real partypooper, threw everyone out of her house. 

Undeterred by the great outdoors, the donnybrookers

continued their carousing outside until the landlord and 

the neighbors called the police. When the cops arrived with 

their usual greeting, "Break it up," there apparently was a 

slight problem in attitude adjustment, and the cops say 

that Coss threw a couple of punches at one of them, which 

landed Coss in the local lockup. Totally dissatisfied with the 

accommodations, Coss proceeded to voice his complaint by 

destroying a radiator, a sink, a toilet and a lightfixture on 

the ceiling in his cell. For this, he was convicted of simple 

assault and institutional vandalism and sentenced to six 

months to a year on each offense. Coss did his time and 

was released to society on parole. 

Seven or eight months after Coss was discharged from 

Pennsylvania parole supervision on August 30, 1989, a 

certain Peter Petrovich was beaten "by a group offive or six 

men, including appellant,"2 and Coss was arrested and 

convicted on one count of aggravated assault and battery 

and one count of simple assault for his part in the group 

effort to register displeasure on Petrovich's person. Coss 

was sentenced to a term of six to twelve years 

_________________________________________________________________ 

2. See Commonwealth v. Coss, 695 A.2d 831, 833 (Pa. Super. Ct. 1997). 

 27 
imprisonment on the aggravated assault conviction and 

there is no question that the sentencing judge took into 

consideration his previous conviction of assault and 

battery. 

II. 

The panel is in agreement that a Sixth Amendment 

deprivation of competent counsel infected the trial for the 

1986 offense. We have federal habeas corpus subject

matter jurisdiction to reach this conclusion under 28 

U.S.C. S 2254, even though Coss is no longer "in custody" 

for that offense--no longer imprisoned or on parole-- 

because of the teachings of Maleng v. Cook, 490 U.S. 488 

(1989) (per curiam), Clark v. Commonwealth, 892 F.2d 1142 

(3d Cir. 1989), and Young v. Vaughn, 83 F.3d 72 (3d Cir. 

1996). 

The majority's approach requires us to assess the rights 

of society as against the rights of the criminal following a 

determination that the criminal is in custody for a sentence 

that has been tainted by a constitutionally infirm 

conviction, for which the criminal is no longer in custody. 

The normal relief that we grant in habeas corpus is to order 

that the habeas petitioner be freed, subject to the right of 

society to correct in a timely manner the constitutional 

error through a new state proceeding. It cannot be 

controverted that had Coss filed his habeas petition during 

the period he was incarcerated or on parole from thefirst 

conviction and we decided that he had been deprived of his 

Sixth Amendment right to counsel, we would have accorded 

Pennsylvania the option of releasing him or correcting the 

infirmity by means of a new trial or other proceedings. See, 

e.g., Henderson v. Frank, 155 F.3d 159 (3d Cir. 1998); 

Barry v. Brower, 864 F.2d 294 (3d Cir. 1988). 

Here, however, we cannot "free" Coss because he has

already, in the vernacular, "done the crime and done the 

time." We are thus faced with the very nice question: 

Should we give society, here, the Commonwealth of 

Pennsylvania, the right to cure the Sixth Amendment

constitutional defect or should we give the Appellant a free 

ride and have his second sentence declared invalid simply 

because he is a recidivist? 

 28 
I think that the state body politic should always have the 

right to cure the constitutional defect of a conviction used 

to enhance a sentence on a later conviction (1) if the federal 

court has the jurisdiction to confer that option upon the 

state and (2) if it is at all possible by means of new state 

proceedings. The cases relied upon by the majority to 

support its grant of extraordinary relief are exceptions to 

this well-reasoned rule based on the inability of the federal 

courts to direct new state court proceedings. The 

circumstances present here fall squarely within our

traditional procedures. To follow the course set by the 

majority, therefore, improperly infringes on state 

sovereignty and on the notions of federalism, comity and 

fairness that underlie the habeas corpus framework.

In Henderson, supra, we explained that "federal habeas 

power is limited, first, to a determination of whether there 

has been an improper detention by virtue of 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." 155 F.3d at 168. 

It must be asked why, in light of our clear discussion 

in Henderson, the majority seeks to deprive the 

Commonwealth of the option of correcting the 

constitutional violation by a new trial on simple assault. 

The majority's primary answer is a reliance on United 

States v. Tucker, 404 U.S. 443 (1972). Let's examine that 

case. 

A. 

The teachings of Tucker do not constitute an appropriate 

analogue to this case or any other federal habeas case 

brought under S 2254. United States v. Tucker by caption 

and by content was not a habeas corpus case brought

under S 2254 based on a state conviction; the defendant 

there was seeking post conviction relief from a federal 

conviction pursuant to 28 U.S.C. S 2255. This is a 

distinction with a fundamental difference. The Court could 

not possibly condition relief on affording any state the 

 29 
opportunity to retry the defendant because no state officials 

were parties to the law suit. No state warden, no custodian, 

no state officers were respondents or defendants as in the 

case of a S 2254 petition. In bringing his action, Tucker was 

attacking a federal sentence imposed by the District Court 

for the Northern District of California that had been 

enhanced on the basis of invalid state court convictions 

from Florida and Louisiana. Because the Court had no 

state officers as petitioners or respondents before it, the 

Court lacked power or authority to give the option to a state 

court in Florida or Louisiana to retry the defendant. To 

prevent the "erosion of the Gideon principle" that the right 

to effective assistance of counsel is fundamental, the Court 

had no alternative other than to order that the defendant 

be resentenced on the federal conviction without reference 

to the invalid state court convictions.3 In contrast, in every 

habeas petition brought under S2254, an officer of the state 

or a political subdivision thereof is always the respondent. 

The teachings of Tucker reflect one exception to the 

general rule of permitting the state to correct the

constitutional infirmity in a subsequent sentence 

enhancement case--where the federal court lacks the

authority to afford the state the opportunity to correct the 

constitutional infirmity because no state officer is a party to 

the litigation. We now turn to another exception reflected in 

the cases. 

B. 

This court has held, and properly so, that where it is 

factually impossible for the constitutional infirmity to be 

cured by additional state proceedings, the federal court in 

_________________________________________________________________ 

3. The Court's discussion is specifically targeted to a S 2255 case: 

 [T]he real question here is not whether the results of the Florida 

and 

 Louisiana proceedings might have been different if the respondent 

 had counsel, but whether the sentence in the 1953 federal case 

 might have been different if the sentencing judge had known that at 

 least two of the respondent's previous convictions had been 

 unconstitutionally obtained. 

404 U.S. at 448 (emphasis added). 

 30 
a S 2254 case may simply order resentencing on the 

subsequent conviction without considering a previous 

constitutionally infirm conviction. See Clark v. 

Commonwealth, 892 F.2d 1142 (3d Cir. 1989). Clark was a 

deprivation of due process case lodged against a prior 

conviction that served to enhance the sentence for a 

subsequent offense. The gravamen of the petitioner's 

complaint was that in 1974, when Clark was 17 years of 

age, he was denied a juvenile court hearing to determine 

whether he should have been tried as a juvenile or as an 

adult. At the time we heard this appeal in 1989, the 

petitioner was 31 years old. Accordingly, we could not give 

the Commonwealth the option of providing Clark a juvenile 

court hearing. The only relief possible was to order a 

resentencing on the subsequent conviction without 

enhancement. Thus, Clark reflects at least a second

exception to the general rule permitting the state to exercise 

the option of additional proceedings, to-wit, where it is 

factually impossible for the state to cure the constitutional 

defect. 

III. 

We must then determine what dictates of public policy or 

social welfare, or what directive force of law--philosophy, 

history or custom--exists to deny the Commonwealth of 

Pennsylvania this same option merely because Coss 

committed another crime and was incarcerated again. To be 

sure, we have concentrated our federal habeas corpus 

jurisprudence on the rights of the criminal, but this does 

not mean that federal judges are at liberty to ignore or 

totally disregard the rights of society. The great Cardozo 

taught us: 

 The final cause of law is the welfare of society. The rule 

 that misses its aim cannot permanently justify its 

 existence. "Ethical considerations can no more be 

 excluded from the administration of justice which is 

 the end and purpose of all civil laws than one can 

 exclude the vital air from his room and live.". .. [W]hen 

 [judges] are called upon to say how far existing rules 

 are to be extended or restricted, they must let the 

 31 
 welfare of society fix the path, its direction and its 

 distance.4 

Drawing the line between individual liberties and rights, 

and society's rights reflected by government action for the 

larger good, is still the perpetual question of constitutional 

law and is the precise issue that faces this panel today. 

Two thousand years before the Constitution was ratified, 

the same problem bothered an ancient social order that 

spoke through Heraclitus: "The major problem of human 

society is to combine that degree of liberty without which 

law is tyranny, with that degree of law without which 

liberty becomes license."5 

Were we simply deciding a case that involved one young 

man who had difficulty in the past controlling his urge to 

punch people and tear out fixtures in a jail cell, and were 

we to be limited to the facts of this case where, more 

probably than not, the District Attorney of Lackawanna 

County likely will not be inclined to commit the resources 

of his office to retry a simple assault and battery case that 

occurred thirteen years ago, I do not think that this case 

would be important at all. 

But we must realize that the holding of this case will 

have a profound effect that far transcends the mundane 

facts before us here and the question of whether we have 

jurisdiction to consider Coss' appeal in the first place; and 

that is the whisper of Immanuel Kant behind the ear of 

every appellate judge reminding us of his famed categorical 

imperative: "Act as if the maxim of your action were to 

become through your will a universal law of nature."6 Two 

centuries later, an elaboration on the basic theme was 

uttered: "Judges must decide all the issues in a case on the 

basis of general principles that have legal relevance; the 

principles must be ones the judges would be willing to 

_________________________________________________________________ 

4. Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (1921) 

(footnote omitted). 

5. See Ruggero J. Aldisert, The Judicial Process: Text, Materials and 

Cases 9 (2d ed. 1996). 

6. I. Kant, Groundwork of the Metaphysics of Morals 89 (Paton trans. 

1964) (1785). 

 32 
apply to the other situations that they reach; and the 

opinion justifying the decision should contain a full 

statement of those principles."7 This is the concept that 

undergirds the common law doctrine of precedent: The legal 

rule announced in a reported case of an appellate court will 

be applied in subsequent cases presenting the identical 

facts or materially similar ones. 

The majority's holding today is not designed to meet the 

fugitive exigencies of the hour. Rather, this court is issuing 

a reward to every recidivist criminal. If you come to federal 

court during your actual first custody, you will not 

automatically be set free; the state will be given an 

opportunity to correct the constitutional infirmity, usually 

by means of a new trial, some new proceeding or new

appeal. But if you wait to file a habeas challenge of the 

previous conviction until after you commit another criminal 

act and are sent to jail, the possibilities are so much more 

palatable, for if you are successful, the body politic does 

not have the right to correct the original infirmity; 

automatically, you get the benefit of a resentencing on the 

second case as if the constitutional infirmity was 

metaphysically impossible for the state to correct. When 

you wait until the second offense, Mr. Recidivist Criminal, 

and the habeas court finds an infirmity in thatfirst 

conviction, you can thumb your nose to society,"Heads I 

win, tails you lose." Or in the lingo of the jailhouse lawyers, 

"Pal, you're gonna get a free pass." 

If we are to weigh the various claims, wants and 

demands asserted on the one hand by the misdemeanant 

or recidivist and on the other hand by society, the law 

requires adjustments or compromises of conflicting 

interests. To do this, we turn to some social interest, 

frequently under the name of public policy, to determine 

the limits of reasonable adjustment. We have been taught 

that a primary social interest is in the general security, long 

recognized in the maxim that the safety of the people is the 

highest law. An equally primary social interest is in the life 

_________________________________________________________________ 

7. K. Greenawalt, The Enduring Significance of Neutral Principles, 78 

Colum. L. Rev. 982, 990 (1978), commenting on H. Wechsler, Toward 

Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959). 

 33 
and freedom of the individual. They are on a collision 

course here, as Heraclitus explained a millennium or two 

ago, but I feel that if we look at law functionally as an 

attempt to satisfy, to reconcile, to harmonize,"to adjust 

these overlapping and often conflicting claims and 

demands,"8 the balance must be struck here in favor of the 

Commonwealth, which should be given the opportunity to 

correct the constitutional infirmity that we have found here. 

It is for the foregoing reasons that I dissent in part and 

would grant the writ of habeas corpus conditioned on the 

right of the Commonwealth of Pennsylvania to correct the 

constitutional infirmity by retrying Coss on the 1986 

incident. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

8. Roscoe Pound, A Survey of Social Interests, 57 Harv. L. Rev. 1, 39 

(1943). 

 34