### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-28-1999 

# C o s s v . D i s t Att y L a ck a

w a nn a

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-7416

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" C os s v . Di s t Att y L a ck a

w a nn a " (1999). 1999 D e cisio n s

. P a pe r 169.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/169Filed 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 AppellantWilliam 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 rev erse the District Court's denial of his motion for habea s corpus relief filed pursuant to 28 U.S.C. S 2254. Coss arg ues 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 re mand to
the District Court to issue a conditional writ of h abeas

corpus.

I. Facts1

On June 25, 1986, Coss, aged 17, attended a party a t the home of his sister, Carol Ann Frank. Also in attend ance were Coss' brothers, Jimmy and Bobby, Coss' girlfri end, Sherry Kulick, Carol Ann's roommate, Lisa Frieto, a nd Lisa's brother, George Frieto. Most of the guests a t the party consumed alcohol. During the course of the pa rty, an argument started between Sherry and Lisa, and there after, caused other arguments to erupt among the other gue sts. 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 nois e, Carol Ann's landlord called the police. The police arrive d at the

___________________________________________________ ______________

1. Although at his trial Coss' story differed from the facts we recount here, the District Court clearly credited this vers ion of events, as does Coss implicitly by the very filing of his motion.

2scene and tried to quell the fights that had develo ped on

Carol Ann's front lawn. Coss was arrested for disor derly conduct and taken to police headquarters.

That night, Coss was held in the Lackawanna County Detention Facility for underage drinking. Coss dama ged the cell in which he was placed and was ultimately char ged with institutional vandalism, criminal mischief, cr iminal 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 McGowa n, two times before his trial. The District Court made the finding of fact that Coss gave McGowan the names an d addresses of several potential witnesses during the ir first meeting.2 Counsel gave Coss no notice of the trial date but contacted him approximately one hour before the tri al was to begin, at which point Coss drove directly to the courthouse, stopping only to pick up his brother Ji mmy at
school.

Coss' trial began on October 30, 1986 and lasted tw o days. At the trial, the officers who arrested Coss, Officers Adamitis and Wrobel, testified that when they arriv ed at the scene, individuals began scattering and that they g rabbed Coss as he was running to his car. They testified t hat Coss

___________________________________________________ ______________

2. Coss testified at the evidentiary hearing that i n the first meeting, he and McGowan discussed "the whole entire story, how it happened, [and] who was involved." Coss' second and final meeting w ith McGowan prior to his trial occurred after a severance motion, req uesting that the charges in connection with the simple assault be se vered from those filed for the damage to the juvenile detention center, wa sfiled in September 1986. Coss alleges that he and McGowan also discuss ed 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 admit ted that she did not specifically remember Coss' case and was instea d testifying based on her general practice as a public defender.

The court also noted that, even if Coss did not pro vide the names to McGowan at this time, a cursory review of the polic e reports would have
identified the names and addresses of some of these witnesses.

3was screaming vulgarities and smelled of alcohol. T hey

testified that, after being grabbed, Coss began pus hing Officer Wrobel and was then arrested. They also tes tified that as Officer Adamitis attempted to grab Coss' br other Bobby, Coss punched Officer Adamitis in the face. T his punch is the basis for Coss' simple assault charge, which is the charge at issue in this appeal. Finally, Off icer Wrobel testified that an individual named George also hind ered 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 qu estion, they were in their sister's driveway, along with th eir brother Bobby, and had been there no more than fifteen minu tes when two police officers arrived and began to assau lt Bobby and Coss. Coss stated that there was no party at Ca rol Ann's house that night, that he had not been drinki ng, that he did not curse or punch anyone, and that he did n ot know who the officer was referring to when he state d 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 hou se to give her a camera, that he had not been drinking, a nd that Coss did not hit a police officer.

The charges ultimately presented to the jury were institutional vandalism and criminal mischief, simp le assault, resisting arrest, and disorderly conduct. The jury convicted Coss of institutional vandalism, criminal mischief, and simple assault.4 Coss was sentenced o n 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. Inst ead, Coss, on his own initiative, brought Jimmy to the trial and aske d him to testify. McGowan admitted that she never subpoenaed, intervi ewed, or prepared Jimmy.

4. The institutional vandalism and criminal mischie f result from Coss'
destruction of the detention cell and are not relat ed to Coss' interaction with the police outside of Carol Ann's house.

4these convictions. Presently, he is serving a sente nce based

on charges from a 1990 conviction, unrelated to his 1986 convictions. Although he has served the term for th e assault charge, Coss urges that his claim is not mo ot because the assault charge was used to enhance the
sentence from a 1990 conviction for which he is sti ll 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, 1 996. In the petition, Coss claimed that he was denied his S ixth Amendment right to effective assistance of counsel based on, among other things, counsel's failure to subpoe na any of the witnesses he requested.5

On April 20, 1998, an evidentiary hearing was held to
address Coss' ineffective assistance of counsel cla ims. At the hearing, each of the witnesses that Coss stated he had identified to counsel, namely, Carol Ann, Bobby, Sh erry, 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 t he 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 offic ers to try to hinder his attempt to arrest Bobby. Thus, ac cording to these witnesses' testimony, Coss was in the poli ce car the entire time the police attempted to arrest Bobb y. According to the District Court, "McGowan's recolle ction of the case [at the evidentiary hearing] was somewhat sketchy."6

___________________________________________________ ______________

5. Coss also alleged that his counsel was ineffecti ve 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 th ese other bases of ineffective counsel and Coss does not appeal their dismissal.

6. From a review of the evidentiary hearing transcr ipt, we agree with the
District Court's characterization of McGowan's memo ry of this case. McGowan was asked the following at the evidentiary hearing:

5She conceded during the hearing that she did not

investigate the events surrounding Coss' arrest, el ecting not to dispatch her investigator to interview any of th e witnesses at issue, and defended her actions by sta ting that "Coss must have told her not to subpoena them." Dis t. Ct. Op. at 16 (June 10, 1998).

Following the hearing, the District Court denied Co ss'
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, b ase d on actual recollection of this particular case, the Co ss case, or are you testifying, based upon your general practice , as a Public Defender, when you were employed in the Public Defende r's Office?

A. It would -- it would be in part, yes, an d in part, no. Because certain portions that I've responded to, I h ave 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, acco rding to the transcript, that he was thinking about an ap peal, but they were telling him this, and then I just -- I recal led. I do recall distinctly, exactly, that they -- the they . . was advis ing 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 ge neral.

. . . .

Q. Ms. McGowan, what I'm asking you about i s, do you, specifically, remember having this conversat ion with Eddie Coss about these witnesses or is your testimony t hat this is how you normally conduct yourself?

A. No, no. No, no, no, it wouldn't be. I wo uld have asked him what about these people, what about these, w hat about these? You know, what were they doing there or how are they related to this?

This questioning proceeds, with McGowan answering t he 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."6not have been different given the inconsistency in the

accounts told by Coss and his brother on the one ha nd, and the witnesses and the police on the other. Coss appeals this decision of the District Court, arguing on app eal 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' ineffectiv e counsel claim, we will first review whether the Dis trict Court had subject matter jurisdiction over this hab eas petition. Section 2254 confers jurisdiction on Unit ed States district courts to entertain petitions for habeas c orpus relief only from persons who are "in custody" in violation of the
Constitution or laws or treaties of the United Stat es. The Supreme Court has interpreted S 2254 as mandating t hat the petitioner be "in custody" pursuant to the conv iction or sentence he seeks to attack at the time his petitio n is filed. See Carafas v. LaVallee, 391 U.S. 234 (1968). A hab eas petitioner does not remain "in custody" under a con viction "after the sentence imposed for it has fully expire d, merely because of the possibility that the prior convictio n will be used to enhance the sentences imposed for any subse quent crimes of which he is convicted." Maleng v. Cook, 4 90 U.S. 488, 492 (1989) (per curiam). A petitioner does, ho wever, satisfy the "in custody" requirement for federal ha beas jurisdiction when he asserts a challenge to a sente nce he is currently serving that has been enhanced by the all egedly 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 habe as proceeding an allegedly unconstitutional conviction , even if he has served in entirety the sentence resulting fr om the conviction, if that conviction had an effect on a p resent sentence. See also Young v. Vaughn, 83 F.3d 72, 76 (3d Cir. 1996) (holding that "a prisoner may attack his curr ent sentence by a habeas challenge to the constitutiona lity of an expired conviction if that conviction was used t o enhance his current sentence").

7In this case, although Coss has already served the

sentence resulting from the allegedly unconstitutio nal 1986 convictions, he is currently serving a sentence for an unrelated, 1990 conviction in the Court of Common P leas of Lackawanna County for aggravated assault. Coss a lleges
that the sentence from his 1990 conviction was adve rsely affected by the 1986 assault conviction. The senten cing judge did, in fact, refer to Coss' 1986 conviction for assaulting a police officer in sentencing him to th e top of the standard range for his 1990 conviction. Coss is thus attacking his prior conviction in an attempt to hav e his current sentence, which relied on his prior convict ion, reevaluated. The District Court therefore appropria tely construed Coss' petition as challenging the 1990 co nviction for aggravated assault rather than his expired conv iction, see id. at 73, and properly concluded that it had jurisdiction over his S 2254 motion petition. Id. W e have appellate jurisdiction pursuant to 28 U.S.C. SS 129 1 &
2253.

IV. Exhaustion

Absent a valid excuse, a habeas petitioner must pre sent
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 ha ve 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. Rya n, 835 F.2d 506, 509 (3d Cir. 1987)). Of course, "[i]nexcu sable 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, 8 00 F.2d 353, 354 (3d Cir. 1986).

Prior to filing his S 2254 petition, Coss had a pet ition 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. Und er these circumstances, the District Court excused the

8exhaustion requirement and we can find no fault wit h that

determination. Appellant has not, however, presente d to the Pennsylvania state courts his claim that the invali d 1986 conviction was used to enhance his subsequent convi ction in 1990, the conviction being challenged by the und erlying habeas petition. Nonetheless, we conclude that this is not
a situation in which the District Court was faced w ith a mixed petition necessitating a dismissal under Rose v. Lundy. As was made clear by the Pennsylvania Suprem e Court in Commonwealth v. Ahlborn, 699 A.2d 718 (199 7),
collateral relief is not available under either the Post Conviction Hearing Act or under the common law reme dies of state habeas corpus or coram nobis for a petitio ner who is not currently serving a sentence of imprisonment for the conviction he wishes to challenge, even if petition er contends that collateral consequences stem from tha t conviction. Accordingly, insofar as state law clear ly
forecloses state court review of Coss' "collateral consequence" claim, the District Court properly exc used
exhaustion and entertained the claim on its merit. 7 See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 138 (3 d Cir. 1986) (citing Duckworth v. Serrano, 454 U.S. 1, 3 ( 1981) (per curiam)).

V. Applicable Law

Because Coss submitted filings to the District Cour t both
before and after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we t hink 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 p etition and amendment were both filed prior to AEDPA's effe ctive 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). Th ough 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.

9after 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 c laims presented in his original petition that were determ ined by the District Court to be unexhausted. See, e.g., Ro se, 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 corp us are statutorily provided for by 28 U.S.C. S 2242, w hich 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 Ru les Governing Section 2254 Cases; see also Calderon v. Ashmus, 523 U.S. 740, -- , 118 S. Ct. 1694, 1700 (1 998) (Breyer, J., concurring) (amendments to habeas peti tions under Rule 11 are governed by Fed. R. Civ. P. 15 un less otherwise expressly governed by the statute). In ac cordance with Rule 15(a), a party may amend a pleading after a responsive pleading has been served "by leave of co urt." Fed. R. Civ. P. 15(a). Moreover, pursuant to Rule 1 5(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 origi nal petition, the amendment of the pleading relates bac k to the date the original petition was filed. As noted prev iously, the claims in Coss' second amended petition not only "a rose out of the conduct" set forth in the original habea s petition and amendment, they were the same claims, minus tho se that were unexhausted. In fairness, we view his pet ition
filed after AEDPA as tantamount to a further amendm ent to his initial filing, which he filed at the direction of the District Court, expressing Coss' intention to proce ed with his exhausted claims. Therefore, we view all the cl aims raised as having been asserted in a petition filed prior to AEDPA's enactment date. Accordingly, under pre-AEDP A habeas requirements, Coss was obligated to obtain a certificate of probable cause in order to appeal fr om the District Court's judgment dismissing his habeas cor pus petition.

The pre-AEDPA certificate of probable cause did not require specification of issues and placed the enti re case

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

F.3d 749, 759 (8th Cir. 1998); Herrera v. United St ates, 96 F.3d 1010, 1012 (7th Cir. 1996); see also United St ates ex rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978). The postAEDPA certificate of appealability, on the other ha nd, requires specification as to which issues satisfy t he standard set forth in 28 U.S.C. S 2253(c)(2), i.e., those issues for which the applicant has made a substanti al showing of the denial of a constitutional right. In the instant case, rather than granting appellant a cert ificate of probable cause to appeal, the District Court grante d Coss a certificate of appealability limited to his claim that counsel rendered constitutionally ineffective assis tance by failing to subpoena witnesses on the assault charge . Under pre-AEDPA law we determined that it is inappropriat e for a District Court to prescribe the issues or issue whi ch may be considered in support of or in opposition to a judg ment, Hickey, 571 F.2d at 766, and appellant is free to c hoose which claims to assert on appeal. In this case, how ever, because Coss, through his attorney, limited his req uest 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 n o reason to extend our review beyond the merits of that clai m. Moreover, given our disposition of the appeal, we s ee 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 assis tance of counsel test. Since Coss' claim involves the legal component of an ineffective assistance of counsel c laim, we exercise plenary review. See Parrish v. Fulcomer, 1 50 F.3d 326, 328 (3d Cir. 1998).

In order to obtain relief based on an ineffective a ssistance of counsel claim, a defendant must not only show th at 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 den ied Coss habeas relief, despite its finding that counse l's failure to subpoena the witnesses at issue was objectively

11unreasonable, because Coss had failed to demonstrat e

prejudice.8

To prove prejudice under the second prong of the Strickland test, a defendant must "establish a reas onable probability -- one sufficient to undermine our conf idence in the outcome -- that the jury's verdict would have b een different if not for counsel's errors." United Stat es v. Gray, 878 F.2d 702, 712 (3d Cir. 1989). The District Cour t
reached its conclusion that Coss had failed to demo nstrate prejudice based on the fact that the witnesses who testified at the evidentiary hearing painted a completely dif ferent picture of the incident leading to Coss' arrest fro m that told by Coss and Jimmy at trial. The testimony at the evidentiary hearing made clear that, on the night o f the incident, Coss had been drinking at a party that ha d 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 th at, regardless of counsel's error, Coss still would hav e testified, and would have testified in the way that he did, th e District
Court reasoned that the failure to call these witne sses was not prejudicial to Coss, as their testimony, if off ered, 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 offi cers, the
District Court reasoned that Coss could not have be en prejudiced by counsel's failure to call witnesses w ho only would have contradicted Coss' version of the facts, destroying his credibility with the jury.9 The Dis trict Court

___________________________________________________ ______________

8. We are not asked to review the issue of the reas onableness of counsel's actions as justifiable or strategic decis ions. 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'sfin ding that her conduct "fell below objective standards of reasonab leness."

9. The District Court also considered that Carol An n and Bobby's testimony would have been suspect since they are Co ss' siblings, that Sherry's testimony would have been suspect since sh e was Coss' girlfriend, and that George Frieto's testimony, whi le seemingly beneficial
to Coss in that he testified that it was he who att acked 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.

12thus concluded that the outcome of the trial would have

been no different, that is, Coss still would have b een found guilty of assaulting the officer, absent counsel's failure.

We disagree with the District Court's reasoning. Wh ile it is unlikely that a court can determine with certain ty the result of the proceedings absent counsel's error, w e must
examine the "breadth of the evidence" and examine w hether
it is sufficient to undermine our confidence that t he case would have come out in the way that it did absent c ounsel's errors. United States v. Kauffman, 109 F.3d 186, 19 1 (3d Cir. 1997). Having examined the breadth of the evid ence in this case, including the evidentiary hearing transc ript, we conclude that there is a reasonable probability tha t, had counsel subpoenaed the witnesses at issue, Coss wou ld 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' arr est on the night of June 25, 1986, only Coss and his young er brother Jimmy testified in Coss' defense. It cannot be doubted that Coss and Jimmy decided to try to conce al 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 no t assault a police officer. At the evidentiary hearing held t o 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 importa ntly, however, Carol Ann, Bobby, Sherry, and George testi fied consistently that Coss did not punch a police offic er, and Bobby, Sherry, and George testified consistently th at George jumped on a police officer's back when the o fficer assaulted Bobby. Finally, they also testified consi stently that, at the time the officers arrested Bobby, whic h, according to the officers, is the time that Coss pu nched the officer, Coss was sitting in the police car with th e door shut.10

___________________________________________________ ______________

10. It is important to note that all witnesses at t he evidentiary hearing were sequestered, thus bolstering the credibility o f these witnesses' convincingly consistent versions of the critical ev ents.

13Thus, although the witnesses' rendition of what hap pened

on the night in question conflicts in large part wi th Coss' original version of the story, all accounts of the evening are consistent in their most significant respect, the f act 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. Whe n it reached the prejudice prong of the Strickland test , the District Court stated that " `[p]rejudice' to a def endant from
the failure to call witnesses should be assessed in the context of the other testimony presented by the def ense witnesses." Dist. Ct. Op. at 18 (June 10, 1998) (em phasis added). The District Court then asked whether the r esult of this trial would have been any different if, instea d of only Coss and Jimmy testifying in Coss' defense, Coss, J immy,
and the other four witnesses had testified in Coss' defense, assuming not only that Coss would still testify, bu t would
tell the tale that he did at trial.

Strickland requires that a court consider"the total ity of the evidence before the judge or jury" in determini ng prejudice. 466 U.S. at 695. It does not require, ho wever, the court to ignore the way in which the "totality" wou ld present itself if counsel's conduct had been object ively reasonable. Strickland also recognizes that some er rors are so great that a court cannot merely recall the proc eedings as they occurred with counsel's error, and then, as the District Court did here, merely add the evidence no t presented to determine the alternative outcome of t he trial
absent counsel's mistake. "Some errors will have ha d 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, alter ing 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 act ually did. Considering the totality of the evidence, we believ e that, had counsel subpoenaed the witnesses and heard from them their version of the events, including the fac t that, although the police were partially correct in their

14allegations, 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 ficti onal 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 reali zed and
considered the different course that the trial woul d probably have taken had counsel acted in an objecti vely reasonable manner by subpoenaing and interviewing t hese witnesses, and then presenting a defense consistent with their testimony. If counsel had interviewed these w itnesses, we believe that there is a reasonable probability t hat Coss would not have testified at all, or that Coss would have testified consistently with the other witnesses, th us avoiding the contradictory testimony that troubled the
District Court.

We also note that recent Supreme Court jurisprudenc e has provided additional insight into the "outcome" test, which suggests that, in determining whether a defen dant was prejudiced by counsel's ineffectiveness, we sho uld also inquire whether counsel's conduct rendered the verd ict "unreliable." Because the outcome test can produce untoward results depending on the facts, the Suprem e 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 Supr eme Court was faced with the question of "whether couns el's failure to make an objection in a state criminal se ntencing proceeding -- an objection that would have been sup ported 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 uph eld

___________________________________________________ ______________

11. In fact, as pointed out by appellant, if counse l had put both Coss and the witnesses at issue on the stand and present ed 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 s ay that it was proper for her not to offer the witnesses' testimony in he r attempt to present a consistent theory of defense, since she did not int erview these witnesses to know of any inconsistency.

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

two years earlier overruled the decision that was t he basis for defendant's ineffectiveness claim; thus, the om itted objection that was the basis of counsel's alleged
ineffectiveness would have been overruled under cur rent law.12 Fretwell v. Lockhart , 946 F.2d 571 (8th Cir . 1991), rev'd, 506 U.S. 364 (1993). The majority reasoned t hat
defendant was entitled to the circuit's case law th at was in effect at the time of his sentencing because, if co unsel 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. T he 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 b een different but for counsel's ineffectiveness, but on "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally un fair." Fretwell, 506 U.S. at 372. "Unreliability or unfair ness does
not result if the ineffectiveness of counsel does n ot deprive the defendant of any substantive or procedural righ t to
which the law entitles him." Id. The Court conclude d 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 enti tled to the particular objection at issue, defendant had no t been denied any substantive or procedural right to which the law entitles him and "[t]he result of the sentencing pr oceeding in the present case was neither unfair nor unreliab le." Id. at 371. In so honing and clarifying the prejudice t est, the

___________________________________________________ ______________

12. Defendant argued that his counsel should have m ade 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 C ourt'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 aggrava ting circumstance found by the jury was identical to an element of th e capital crime of which defendant was convicted). See Perry v. Lockha rt, 871 F.2d 1384 (8th Cir. 1989) (overruling Collins in light of Low enfield).

16court harkened back to similar reasoning in Nix v.

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

While in both Nix v. Whiteside and Lockhart v. Fret well the application of concepts of reliability and fair ness caused the court to conclude that a defendant was not prej udiced even though the outcome would have been different a bsent counsel's alleged ineffectiveness, we find the reas oning of these opinions to be helpful nonetheless here, wher e in the process of examining the probable effect of counsel 's error, the District Court did not consider whether the pro ceeding 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, 10 9 F.3d 186, in which we held that defense counsel was inef fective 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 cli ent to plead guilty, because he viewed the insanity defens e as inconsistent with defendant's conduct that demonstr ated that he knew and appreciated the criminal nature of his
acts. The district court had found no ineffectivene ss and no prejudice because it concluded that the outcome wou ld 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 t o aid him in presenting perjured testimony. Although it seems li kely 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 "co unsel's conduct complained of here cannot establish the prejudice r equired for relief under the second strand of the Strickland inquiry." Nix, 475 U.S. at 175. The Court reasoned that, under Strickland, the "ben chmark" of an
ineffective-assistance claim is the fairness and re liability of the adversary proceeding, and that "[w]hether he was persuaded or compelled to desist from perjury, Whiteside has no valid claim that con fidence in the result of his trial has been diminished by his desisting f rom the contemplated perjury." Id.

17is sufficient to undermine our confidence that Zorb augh

would have advised his client to plead guilty rathe r than proceed to trial and that Kauffman would have accep ted 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 t his duty to investigate the evidence obtainable from various health professionals." Id. In essence, we used our own ske pticism regarding the reliability and fairness of the resul t 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 a s a reminder that the concept of reliability and fairne ss should serve as a guide as we make the prejudice determina tion. In determining whether there is a reasonable probab ility
that the outcome would have been different absent counsel's ineffectiveness, the district court shoul d look at
whether the outcome that did occur was reliable and fair in light of all the evidence before it. In Kauffman, t hat evidence demonstrated that the defendant may well h ave been totally psychotic and therefore not guilty; si milarly, here, that evidence tended to show that Coss was in nocent of the assault charge. The results reached in the t rial were unreliable and the outcome, had counsel been effect ive, may well have been different. We think that it is h elpful 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 s ame with or without these witnesses to be flawed. In li ght of the amount of exculpatory evidence that was in fact ava ilable, yet not presented to the jury, we believe that coun sel's
conduct made the result of Coss' trial fundamentall y unfair and unreliable, and the outcome would have likely b een different if the witnesses had been called. Thus, C oss has

18met his burden under Strickland, and subsequent Sup reme

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 continue d
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 speci fic attention in the courts, we will determine the reli ef 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 resu lt of the retrial differs from the previous result, a subsequ ent resentencing on Coss' current conviction, removing from Coss' current sentence any enhancement based on the prior unconstitutional conviction; or, condition th e writ on the state's resentencing of Coss for his current co nviction without any enhancement due to the prior unconstitu tional conviction.14 While a retrial is the usual relief g ranted in a habeas proceeding based on ineffective assistance o f counsel in connection with a current conviction, th e Supreme Court precedent has required only resentenc ing 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 con clude 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 consi stently sought a new trial and a new sentencing hearing.

19The 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 independen t from the criminal proceedings that have already occ urred, serving only to judge and to correct that which res ults in unconstitutional confinement. In many cases, the is sue of unconstitutional confinement is unrelated to the qu estion of guilt or innocence. It may, as in the case at ha nd, relate to a current sentence that has been enhanced by an expired, yet unconstitutional conviction. A sentenc e which is enhanced based on a prior unconstitutional convi ction, although appearing more attenuated from the actual wrong than a person's incarceration following an unconsti tutional 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 Tuck er in which, as here, the Court granted habeas relief based on a prior conviction that had been served in full, bu t that had an enhancement effect on the petitioner's current s entence. The Court found the petitioner's current confinemen t unconstitutional because it was based, in part, on a prior conviction resulting from a trial at which he was d enied his constitutional right to counsel. Without any consid eration of the petitioner's probable guilt or innocence as to the prior offense, the Court ordered the writ condition ed upon petitioner's resentencing absent any consideration of the prior, unconstitutional conviction. Since the prior conviction was found unconstitutional, it could hav e no impact on the petitioner's current sentence. See id . at 447- 48 (stating that the real question is not whether t he outcome of the earlier prosecutions would have been different if Tucker had counsel, "but whether the s entence . . . might have been different if the sentencing j udge had known that at least two of [Tucker's] previous conv ictions had been unconstitutionally obtained").

In Maleng v. Cook, the Court was faced with the iss ue 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 unconstituti onal,

20expired conviction. The Court limited itself to the narrow

issue of custody, but expressly recognized the poss ibility of challenging an expired conviction in connection wit h an attack on a current sentence enhanced by the prior conviction. In this case, however, unlike Tucker, t he prior conviction was challenged based on the court's fail ure 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 cons titutional right to due process. Consistent with the relief gr anted in Tucker, we granted the petitioner's writ conditione d on resentencing for the subsequent offense absent consideration of the prior conviction. Id. at 1149 n.10 (stating that the only relief available under Tucke r is resentencing). In Young v. Vaughn, we again applied the reasoning of Tucker, holding that the petitioner co uld challenge his prior conviction, held unconstitution al due to ineffective assistance of counsel, if this convicti on was used to enhance his current sentence.15 Since in Young w e were addressing only our jurisdiction to hear the habeas petition, we did not specifically consider what rel ief 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 r elief. See, e.g., Brock

v. Weston, 31 F.3d 887 (9th Cir. 1994) (prior convicti on challenged based on involuntary and uninformed plea); Tredway v. Far ley, 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 couns el); Battle v. Thomas, 923 F.2d 165 (11th Cir. 1991) (prior conviction cha llenged based on ineffective assistance of counsel); Gamble v. Parso ns, 898 F.2d 117 (10th Cir. 1990) (prior conviction challenged based on in voluntary and uninformed guilty pleas); Taylor v. Armontrout, 877 F.2d 726 (8th Cir. 1989) (prior conviction challenged based on involun tary guilty plea and ineffective assistance of counsel on appeal).

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

case to be any different from that granted in Tucke r. Both unconstitutional convictions, although expired, pro vided grounds for habeas relief because they resulted in the petitioners' serving sentences enhanced thereby, an d were, thus, unconstitutional. Just as in Tucker, we canno t now correct by retrial the unconstitutional incarcerati on resulting from the previous conviction, as that sen tence has been served in its entirety. Instead, all that we c an do is provide the state court with the opportunity to voi d Coss' current sentence of the ramifications, if any, resu lting 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 d oes not have power to directly intervene in the process of the tribunal which has incorrectly subjected the petiti oner to the custody of the respondent official. . . . The r espect due the tribunals of a sovereign state within our feder al system, however, requires that its courts be given an oppor tunity to correct their own errors." In this case, we will gi ve the tribunal which incorrectly subjected him to custody -- namely, the sentencing court -- the opportunity to correct its error by resentencing Coss, ridding his sentenc e of the unconstitutional taint of his prior conviction.

We realize that the sentencing court must now asses s the extent to which the unconstitutional conviction imp acted
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 Se e Herrera v. Collins, 506 U.S. 390, 400 (1993) (stating that "federal

___________________________________________________ ______________

16. It might even be said that our determination he re is more probative of Coss' actual guilt or innocence of the assault c harge than was the determination in Tucker. Here, we determine not onl y that counsel was ineffective, but, in determining prejudice, we held that there was a reasonable probability that the outcome of Coss' tr ial would have been different such that Coss may well have been found n ot 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.

22habeas courts sit to ensure that individuals are no t

imprisoned in violation of the Constitution -- not to correct errors of fact"); Tucker, 404 U.S. at 447-48 ("We n eed not speculate about whether the outcome of the responde nt's . . . prosecutions would necessarily have been diff erent if he had had the help of a lawyer."); S. Rep. No. 80-152 6, at 2 (1948) ("[H]abeas corpus . . . is not a determinati on of guilt or innocence of the charge upon which petitioner wa s sentenced. Where a prisoner sustains his right to d ischarge 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 ea rlier criminal trial.").17 Habeas relief serves to rectif y conditions of unconstitutional confinement. Coss is no longer confined for the previous assault conviction. Thus, we are t o rid
Coss' current confinement of its constitutional def ect -- which the reliance upon his previous conviction rep resents. Doing any more than this oversteps the bounds of ou r task
on habeas review.18

Further, while re-trying Coss' assault would make resentencing fully informed, we think this inapprop riate given our limited role in applying habeas relief, a s a retrial would have the untoward result of providing Coss wi th a method of attacking, and altering, the outcome of h is assault trial in a way otherwise unavailable to him through
direct and collateral review absent this second con viction.19

___________________________________________________ ______________

17. In fact, the actual innocence inquiry most ofte n comes into play in habeas proceedings where a petitioner seeking relie f 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 th e bar. See Herrera v. Collins, 506 U.S. 390, 404 (1993).

18. We have explained previously that federal court s 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 betwee n two principles: minimizing intervention into the state criminal pro cess and ensuring the cure of all constitutional defects).

19. Actually, Coss did present his ineffective assi stance of counsel claim in a collateral challenge to his 1986 convictionfil ed pursuant to Pennsylvania's Post Conviction Hearing Act. This pe tition, which served

23It is one thing to enable a petitioner to attack th e

constitutionality of a prior conviction insofar as it impacts a later sentence; it is quite another to let him re ach back and undo that conviction after the opportunity for challenging it on direct appeal and collateral proc eedings has come and gone. The concept of challenging previ ous 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 F ollowing Custis v. United States, 47 Stan. L. Rev. 1323, 134 0 (1995) (stating that "the language in Maleng indicates the Court's reluctance to let defendants challenge prior convic tions in the federal habeas forum" and that the "reasoning i n Custis regarding the importance of finality and the diffic ulty of administering attacks on prior convictions also rev eal[s] a desire to severely limit these claims").

Our view that resentencing on the more recent convi ction is warranted, rather than a new trial on his 1986 a ssault charge, is also consistent with language in other c ase 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 circumstance s 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 senten ce. Young, 83 F.3d at 78 (specifying that a defendant may only attack a prior conviction "in the context of a challenge t o the

___________________________________________________ ______________

as justification for the District Court to excuse t he exhaustion requirement, has yet to be acted upon by the state courts. While Coss' petition remains pending, in all likelihood the sta te courts would refuse to entertain it at this late date. See, e.g., Ahlbo rn, 699 A.2d at 720 (stating that collateral relief is not available fo r a petitioner who is

not currently serving a sentence of imprisonment for th e conviction he wishes to challenge, even if collateral consequence s stem from that conviction). Nonetheless, our resolution of Coss' h abeas claim, and part of our rationale for declining to find that a new t rial would be the appropriate relief here, stems from the fact that d oing so would make this type of challenge available even if Coss had n ot raised this issue in
connection with the review of his 1986 conviction.

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

898 F.2d at 118 (interpreting Maleng as precluding a defendant from challenging an expired conviction "d irectly," but stating that a defendant may attack a prior
unconstitutional conviction in the context of its e ffect on a present sentence); Taylor, 877 F.2d at 727 (same); see also Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1 990) ("That a person happens to be in custody is of cour se not a sufficient reason to rummage through old judgment s in search of ones that may be invalid. To obtain relie f under S 2254 the prisoner must show that his current confinement violates the Constitution.").20 It is i n the
context of his current sentence that Coss has attac ked 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 condi tioned upon Coss' being resentenced without consideration of the previous assault conviction.

VIII. Conclusion

For the reasons stated above, we will reverse the D istrict Court's denial of Coss' habeas petition and remand to the
District Court with instructions that it order a wr it of habeas corpus to issue conditioned upon Coss' being resentenced without consideration of the previous a ssault
conviction.

___________________________________________________ ______________

20. We do not read Brock v. Weston, which did not e xpressly limit the condition of the writ on the petitioner's resentenc ing, but rather ordered the district court "to resolve the petitioner's cha llenge to [the prior] conviction," as inconsistent with our holding here. Instead, we interpret Brock as an order to rid the petitioner's current s entence of any ramifications from his prior unconstitutional convi ction, not as an order to retry the petitioner on the expired conviction.

25ALDISERT, Circuit Judge, concurring in part and dis senting

in part.

Several important public policy and social welfare considerations divide the panel in this case, the f acts of which, at first blush, seem very pedestrian, yet th e grant of habeas corpus relief presents an extremely importan t question that goes to the heart of comity in the re lationship of federal courts and state sovereignties in habeas corpus cases brought under 28 U.S.C. S 2254. In granting t he writ, the majority denies the Commonwealth of Pennsylvani a the option of correcting the constitutional infirmity o f incompetency of counsel by means of new trial. I di sagree with this result.

I adhere to the long line of cases in this court th at typically condition the grant of the writ under S 2 254 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 w hich we determined that the guilty plea was constitution ally
infirm.1

The precise issue that occupies our attention was n ot raised by the parties, but rather was injected by t he 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. S ee Joint App. at 19 P 4 ("The above stated issues are merito rious and demonstrate that Coss was denied his due proces s right to a fair sentencing hearing and his Sixth (6 th) 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 distric t court issue a writ of habeas corpus without prejudice to the right of the Commonwealth of Pennsylvania to undertake appropriate act ion in the further prosecution of this matter.

404 F.2d at 802.

26Coss is entitled to a new trial and sentencing hear ing with

regard to his institutional vandalism, criminal mis chief, and simple assault convictions.").

I.

This melancholy chronicle of events started with a simple assault and battery that took place on June 25, 198 6, 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 Fr ank, the sister of the then-17 year old Appellant, Edwar d 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 donn ybrook 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 landlor d and the neighbors called the police. When the cops arri ved with their usual greeting, "Break it up," there apparent ly 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 dissatisfi ed with the accommodations, Coss proceeded to voice his complai nt by destroying a radiator, a sink, a toilet and a light fixture on the ceiling in his cell. For this, he was convicted of simple
assault and institutional vandalism and sentenced t o 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 fro m Pennsylvania parole supervision on August 30, 1989, a certain Peter Petrovich was beaten "by a group offi ve or six men, including appellant,"2 and Coss was arrested a nd convicted on one count of aggravated assault and ba ttery and one count of simple assault for his part in the group effort to register displeasure on Petrovich's perso n. 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).

27imprisonment on the aggravated assault conviction a nd

there is no question that the sentencing judge took into consideration his previous conviction of assault an d 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 cu stody" 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.2 d 1142 (3d Cir. 1989), and Young v. Vaughn, 83 F.3d 72 (3d Cir. 1996).

The majority's approach requires us to assess the r ights of society as against the rights of the criminal fo llowing 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 constitut ional error through a new state proceeding. It cannot be controverted that had Coss filed his habeas petitio n during the period he was incarcerated or on parole from th efirst conviction and we decided that he had been deprived of his Sixth Amendment right to counsel, we would have acc orded Pennsylvania the option of releasing him or correct ing the infirmity by means of a new trial or other proceedi ngs. See, e.g., Henderson v. Frank, 155 F.3d 159 (3d Cir. 199 8); 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 don e the time." We are thus faced with the very nice questio n: Should we give society, here, the Commonwealth of Pennsylvania, the right to cure the Sixth Amendment constitutional defect or should we give the Appella nt a free
ride and have his second sentence declared invalid simply
because he is a recidivist?

28I think that the state body politic should always h ave the

right to cure the constitutional defect of a convic tion used to enhance a sentence on a later conviction (1) if the federal court has the jurisdiction to confer that option up on 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 excep tions to this well-reasoned rule based on the inability of t he 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, comit y and fairness that underlie the habeas corpus framework.

In Henderson, supra, we explained that "federal hab eas power is limited, first, to a determination of whet her there has been an improper detention by virtue of the sta te court judgment; and second, if we find such an illegal de tention, 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 discuss ion in Henderson, the majority seeks to deprive the Commonwealth of the option of correcting the constitutional violation by a new trial on simple a ssault. The majority's primary answer is a reliance on Unit ed States v. Tucker, 404 U.S. 443 (1972). Let's examin e that

case.

A.

The teachings of Tucker do not constitute an approp riate analogue to this case or any other federal habeas c ase brought under S 2254. United States v. Tucker by ca ption and by content was not a habeas corpus case brought under S 2254 based on a state conviction; the defen dant there was seeking post conviction relief from a fed eral conviction pursuant to 28 U.S.C. S 2255. This is a
distinction with a fundamental difference. The Cour t could not possibly condition relief on affording any stat e the

29opportunity to retry the defendant because no state officials

were parties to the law suit. No state warden, no c ustodian, 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 Distric t Court
for the Northern District of California that had be en enhanced on the basis of invalid state court convic tions
from Florida and Louisiana. Because the Court had n o 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 defendan t. 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 def endant
be resentenced on the federal conviction without re ference
to the invalid state court convictions.3 In contra st, in every habeas petition brought under S2254, an officer of the state or a political subdivision thereof is always the re spondent.

The teachings of Tucker reflect one exception to th e 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 co rrect the constitutional infirmity because no state officer i s a party to the litigation. We now turn to another exception re flected in

the cases.

B.

This court has held, and properly so, that where it is factually impossible for the constitutional infirmi ty 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 differ ent 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 convi ctions had been unconstitutionally obtained.

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

30a S 2254 case may simply order resentencing on the

subsequent conviction without considering a previou s constitutionally infirm conviction. See Clark v. Commonwealth, 892 F.2d 1142 (3d Cir. 1989). Clark w as a deprivation of due process case lodged against a pr ior
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 dete rmine whether he should have been tried as a juvenile or as an adult. At the time we heard this appeal in 1989, th e petitioner was 31 years old. Accordingly, we could not give the Commonwealth the option of providing Clark a ju venile court hearing. The only relief possible was to orde r 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 cons titutional

defect.

III.

We must then determine what dictates of public poli cy or social welfare, or what directive force of law--phi losophy, 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 corpu s jurisprudence on the rights of the criminal, but th is does not mean that federal judges are at liberty to igno re or totally disregard the rights of society. The great Cardozo taught us:

The final cause of law is the welfare of soc iety. The rule that misses its aim cannot permanently justi fy its
existence. "Ethical considerations can no mo re be excluded from the administration of justice which is the end and purpose of all civil laws than o ne can exclude the vital air from his room and live .". .. [W]hen [judges] are called upon to say how far exis ting rules are to be extended or restricted, they must let the

31welfare of society fix the path, its directi on and its

distance.4

Drawing the line between individual liberties and r ights, and society's rights reflected by government action for the larger good, is still the perpetual question of con stitutional law and is the precise issue that faces this panel today. Two thousand years before the Constitution was rati fied, the same problem bothered an ancient social order t hat spoke through Heraclitus: "The major problem of hum an society is to combine that degree of liberty withou t which law is tyranny, with that degree of law without whi ch liberty becomes license."5

Were we simply deciding a case that involved one yo ung 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, m ore probably than not, the District Attorney of Lackawa nna County likely will not be inclined to commit the re sources of his office to retry a simple assault and battery case that occurred thirteen years ago, I do not think that th is case would be important at all.

But we must realize that the holding of this case w ill have a profound effect that far transcends the mund ane 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 cat egorical imperative: "Act as if the maxim of your action wer e 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 ca se on the basis of general principles that have legal relevan ce; 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: T ext, Materials and Cases 9 (2d ed. 1996).

6. I. Kant, Groundwork of the Metaphysics of Morals 89 (Paton trans. 1964) (1785).

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

opinion justifying the decision should contain a fu ll statement of those principles."7 This is the concep t that undergirds the common law doctrine of precedent: Th e legal rule announced in a reported case of an appellate c ourt will be applied in subsequent cases presenting the ident ical facts or materially similar ones.

The majority's holding today is not designed to mee t 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 no t 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 poli tic does not have the right to correct the original infirmit y; automatically, you get the benefit of a resentencin g 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 C riminal, and the habeas court finds an infirmity in thatfirs t conviction, you can thumb your nose to society,"Hea ds I win, tails you lose." Or in the lingo of the jailho use 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 misdemeanan t 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 inter est, frequently under the name of public policy, to dete rmine the limits of reasonable adjustment. We have been t aught that a primary social interest is in the general se curity, long recognized in the maxim that the safety of the peop le is the highest law. An equally primary social interest is in the life

___________________________________________________ ______________

7. K. Greenawalt, The Enduring Significance of Neut ral Principles, 78 Colum. L. Rev. 982, 990 (1978), commenting on H. W echsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

33and freedom of the individual. They are on a collis ion

course here, as Heraclitus explained a millennium o r 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 f ound here.

It is for the foregoing reasons that I dissent in p art and would grant the writ of habeas corpus conditioned o n the right of the Commonwealth of Pennsylvania to correc t the constitutional infirmity by retrying Coss on the 19 86
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 H arv. L. Rev. 1, 39 (1943).

34