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. e du/thir dc ir c uit_1998/260Filed November 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1969

VICTOR HASSINE, Appellant

v.

CHARLES ZIMMERMAN, Superintendent, and THE

ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 86-6315)

Argued: August 4, 1998

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges

(Opinion Filed: November 9, 1998)

Donald J. Goldberg (Argued)

Leslie H. Smith Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Attorneys for AppellantC. Theodore Fritsch, Jr. (Argued)

Stephen B. Harris

Alan M. Rubenstein District Attorney's Office Bucks County Courthouse, 4th Floor Doylestown, PA 18901 Attorneys for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge:

On January 4, 1983, a Pennsylvania state court sentenced Victor Hassine to life in prison, followi ng his 1981 conviction on charges of first degree murder, attempted murder, criminal conspiracy, and criminal solicitation. Now, more than fifteen years later, w e are faced with the question of whether to vacate Hassine's co nviction by granting his petition for habeas relief brought pursuant

to 28 U.S.C. S 2254. Hassine contends that relief i s warranted because the state prosecutor sought to us e his post-arrest silence for impeachment purposes at tri al in violation of the due process principles established in Doyle v. Ohio, 426 U.S. 610 (1976). The district court fo und that a Doyle violation had occurred, but it concluded th at any

constitutional error was harmless under the standar d announced in Brecht v. Abrahamson, 507 U.S. 619 (19 93). We agree that the prosecutor violated Doyle by seek ing to elicit testimony concerning Hassine's post-arrest s ilence. We also agree that Brecht is the proper standard to apply on collateral review. Because we agree further that the Doyle violation was harmless under Brecht, we will affirm.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Murder Conspiracy

This case arises out a conspiracy involving Hassine and his co-conspirators George Gregory Orlowski and Wil liam Eric Decker, which culminated in the August 22, 198 0,

2murder of James Puerale and the shootings of Albert "Skip"

Kellet and Lois Kellet.

The evidence at trial showed that Hassine first met Orlowski in 1979, and that shortly thereafter they decided to open a store in Morrisville, Pennsylvania, calle d Greg's Quality Meat Market ("the Market"). The store was f inanced by Hassine's family, overseen and supervised by Has sine himself, and operated on a daily basis by Orlowski. However, the Market soon experienced financial prob lems, and, with Hassine's knowledge, Orlowski began selli ng marijuana and methamphetamine from a back room in t he

store.

In June 1980, Albert Kellet, a close friend of Orlo wski, purchased $150 of methamphetamine at the Market. Up on returning home, Kellet discovered that the drugs we re of inferior quality and he became enraged. He called O rlowski and invited him to his apartment under the false pr etense of wishing to buy more methamphetamine. When Orlows ki arrived, Kellet threatened him with a club, stole a ll of his money and drugs, and threw him out of the apartment

.

Several days later, Orlowski, Hassine, and Decker, among others, met at the Market to discuss Kellet's actio ns. The State's witnesses testified that at this meeting, H assine

announced that he wanted Kellet "wasted" and that i f Lois Kellet, Albert's wife, was present, she "was to go also, because any witnesses had to go." As a result, Hass ine, Decker, and Orlowski made several attempts over the next month to obtain a gun with which to kill Kellet, an d they investigated the possibility of paying two other in dividuals

to have Kellet murdered. A number of confrontations between Hassine and Kellet also erupted during this time, and, on at least one occasion, Hassine instructed D ecker to shoot Kellet and to kill him. Because it was daylig ht and a witness was present, Decker declined. Nevertheless, on August 22, 1980, Decker had his own encounter with Kellet, and he returned to the Market to tell Hassi ne that "[t]onight's the night -- the cat's got to go. We'l l use your gun."

According to the State's witnesses, Hassine picked Decker up later that evening and drove him to Hassi ne's

3parents' house in Trenton, New Jersey. While Decker waited

in the car, Hassine entered the house and obtained his father's .380 caliber Llama handgun. Hassine then d rove Decker to Kellet's apartment building and gave him the gun and a New York Yankees batting helmet to cover his hair. As Decker approached the building, he saw Kellet in a firstfloor apartment watching television with his wife L ois, and with James Puerale and George Sofield. Decker enter ed the apartment, surveyed the room, and opened fire, kill ing Puerale instantly and injuring Skip and Lois Kellet with

shots to the head.

The police arrested Decker the next day, and arrest ed Hassine three months later, charging Hassine withfi rst degree murder, attempted murder, conspiracy, and

solicitation.

B. The Murder Trial

The State presented thirty-four witnesses at Hassin e's trial, including Decker, who had negotiated a plea bargain with the District Attorney to avoid the death penal ty.

Decker and the other witnesses testified as to the details of the murder conspiracy and described Hassine's exten sive involvement in the plot to murder Kellet.

Hassine then took the stand in his own defense and, for the first time since his arrest, offered an innocen t explanation for his role in the conspiracy. He test ified that he had obtained his father's gun and stored it in t he Market after Orlowski had asked him for protection from

Kellet. He then claimed that Decker entered the Mar ket on the day of the murder, and, without Hassine's knowl edge, took the gun and left the store "ranting and raving , saying he was going to get Skip Kellet." Hassine thus main tained that he never told Decker to kill Kellet, that he n ever gave Decker a gun with which to carry out the crime, and that he was never part of the murder conspiracy.

Attempting to discredit these claims, the prosecuto r asked Hassine a series of questions on cross-examin ation regarding Hassine's post-arrest silence. In particu lar, he inquired three times as to why Hassine had not offe red the same exculpatory story to the authorities following his

4arrest. Hassine's attorney objected each time, beli eving that

the questions violated Hassine's rights under Doyle v. Ohio, which provides that the government cannot use a defendant's post-arrest, post-Miranda silence for impeachment purposes at trial. 426 U.S. at 610. The trial judge agreed, sustaining the objections and prevent ing Hassine from answering the prosecutor's questions. The prosecutor also made two general references to Hass ine's silence in his closing argument. Nevertheless, the court did not provide curative instructions during Hassine's testimony or in the jury charge.

The case was sent to the jury at the close of all e vidence, and on June 11, 1981, the jury found Hassine guilty and recommended that he be sentenced to life in prison on the charge of first degree murder. After denying Hassin e's motions for a new trial and arrest of judgment, the court adopted the jury's recommendation and sentenced Has sine to life imprisonment, in addition to several consec utive prison terms extending from two to twenty years.

C. Review of the State Court Conviction

Hassine appealed his conviction to the Superior Cou rt of Pennsylvania, assigning fifteen reversible errors t o the trial court. See Commonwealth v. Hassine, 490 A.2d 438, 4 43- 44 (Pa. Super. Ct. 1985) ("Hassine I"). Among other things, he argued that the state prosecutor had violated th e due process principles established in Doyle by interrog ating him on the witness stand about his post-arrest silence. On February 8, 1985, the Superior Court denied Hassine 's appeal in its entirety and affirmed his sentence,fi nding that his list of alleged errors was "short on merit ," id. at 444, and rejecting his claim of prosecutorial misco nduct based on Doyle. Relying on state precedent, the cou rt noted that testimony regarding post-arrest silence can be elicited "to refute contrary statements volunteered by the d efendant to demonstrate his cooperation at the time of quest ioning," id. at 451 (quoting Commonwealth v. Bey, 439 A.2d 1 175, 1177 (1982)), and concluded that "[w]e believe this occurred here. The district attorney elicited testimony desi gned to rebut [Hassine's] claim that he cooperated with the police,

5not to suggest [Hassine's] guilt to the jury. Hence we find

no error." Hassine I, 490 A.2d at 451.

On May 13, 1985, Hassine applied for a Petition for Allowance of Appeal in the Supreme Court of Pennsyl vania, claiming again, inter alia, that the prosecution as ked improper questions at trial about his post-arrest s ilence. On April 15, 1986, however, the state Supreme Court

denied the Petition and Hassine's conviction became final.

Hassine chose not to seek a writ of certiorari from the Supreme Court of the United States, but instead fil ed a petition for a writ of habeas corpus with the distr ict court on October 28, 1986. Among other things, Hassine ar gued once again that the prosecutor had exploited his po st-arrest silence as an impeachment tactic in violation of du e process and Doyle. The district court referred the petition to a Magistrate Judge for a Report and Recommendation in accordance with 28 U.S.C. S 636(b)(1)(B), and on Ju ne 15, 1988, the Magistrate Judge recommended that relief be denied. After reviewing the record in detail, the M agistrate Judge found strong evidence "that the jury may have impermissibly been able to draw an inference betwee n petitioner's silence and his guilt, thus clearly in fringing upon petitioner's due process rights as established in Doyle." Nevertheless, he concluded that any constit utional error was harmless, because "[t]he evidence against Hassine was overwhelming."

Hassine filed several objections to the Report and Recommendation, and the district court granted de n ovo review of the Magistrate Judge's findings consisten t with 28 U.S.C. S 636(b)(1)(C). One year later, on November 15, 1989, the district court issued a Memorandum and Or der agreeing with the Magistrate Judge's ruling that th e jury had been permitted "to draw an impermissible infere nce of guilt from Hassine's silence" in violation of Doyle and its progeny. Hassine v. Zimmerman, No. Civ. A. 86-6315, 1989 WL 140491, at *5 (E.D. Pa. Nov. 15, 1989) ("Hassine II"). However, the district court withheld a final decisi on on Hassine's petition, because it believed that oral a rgument was needed on the question of whether the trial err or had

been harmless.

6Oral argument was held on December 1, 1989, but the

court did not immediately issue a ruling, and no fu rther events transpired in the case for the next three an d a half years. On April 21, 1993, the Supreme Court announc ed its decision in Brecht v. Abrahamson, 507 U.S. 619 (199 3), altering the standard for harmless error in habeas cases involving constitutional trial flaws. Prior to Brec ht, the Court had held in Chapman v. California that habeas relief

should be denied in the event of constitutional tri al error only if the prosecution could prove that the error was "harmless beyond a reasonable doubt." 386 U.S. 18, 24 (1967). In Brecht, however, the Supreme Court annou nced a new test for harmless error in habeas cases, name ly, whether the error "had substantial and injurious ef fect or influence in determining the jury's verdict." 507 U .S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If not, habeas relief should be denied.

Realizing the potential impact of the new standard on Hassine's petition, the district court scheduled a July 29, 1993, conference call to discuss several matters, i ncluding "the significance, if any" of the Supreme Court's d ecision in Brecht. Following that call, the parties submitted letter briefs to the district court regarding whether Hass ine's claims should be evaluated under Brecht or Chapman and

whether harmless error could be found under either standard. However, two more years passed, and on Ma y 4, 1995, the district court conducted yet another oral argument concerning whether Brecht should be applie d to Hassine's petition. Still, no decision issued, and the parties

filed at least ten additional letter briefs in the ensuing two

years.

Finally, on October 30, 1997 -- more than eleven ye ars from the date on which Hassine first filed his habe as petition -- the district court reached a decision o n the

merits of the harmless error claim. The court exami ned the caselaw and the rationales supporting the rule in B recht and concluded that "[t]his court must apply the Bre cht standard" to Hassine's petition for relief. Hassine v. Zimmerman, No. Civ. A. 86-6315, 1997 WL 677152, at *5 (E.D. Pa. Oct. 30, 1997) ("Hassine III"). After con ducting an extensive review of the record and the evidence sup porting

7the jury's verdict, the court then held that the Do yle error

at Hassine's trial was harmless, because "the recor d, considered as a whole, demonstrates that the direct and circumstantial evidence of [Hassine's] guilt was overwhelming." Id. at *7. The court determined that "the prosecutor's improper reference to Hassine's post-a rrest silence, although a constitutional violation under Doyle, did not have a substantial and injurious effect or infl uence on the jury's guilty verdict" within the meaning of Br echt. Id. at

*10.

The district court issued a certificate of probable cause allowing Hassine to file a timely appeal, and we no w have jurisdiction to hear the appeal pursuant to 28 U.S. C.

SS 1291 and 2253.1 Because the district court relie d entirely

on the state court record and did not hold an evide ntiary hearing, our review is plenary. See Johnson v. Rose meyer, 117 F.3d 104, 109 (3d Cir. 1997). Acting in the sam e capacity as the district court, we will presume tha t the factual findings of the state courts are correct if fairly supported by the record, but we will exercise plena ry review over state court conclusions on mixed questions of law and fact and pure issues of law. See Ahmad v. Redman , 782 F.2d 409, 412 (3d Cir. 1986).

II. THE DOYLE VIOLATION

The Supreme Court established in Doyle v. Ohio that it is improper for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's postarrest silence. 426 U.S. at 610. Doyle involved two defendants who, upon taking the witness stand in th eir own defense, claimed that a narcotics informant had framed them for the crime. The prosecutor asked eac h

defendant on cross-examination whether he had told the "framing" story to the police after his arrest. Def ense counsel objected strenuously, arguing that the pros ecution could not impeach the defendants on this basis beca use

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1. This case is not subject to the terms of the Ant iterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 10 4-132, 110 Stat. 1214 (1996), because Hassine filed his habeas petit ion well before the April 24, 1996, date on which the AEDPA took effect

.

8the defendants were merely exercising their right t o remain

silent after arrest. However, the objections were o verruled and the defendants were compelled to admit that the y had not provided an exculpatory story to the authoritie s following their arrests and the reading of their Mi randa rights.

On appeal, the defendants argued that the prosecuto r's line of questioning violated the due process guaran tees inherent in the right to remain silent. The Supreme Court agreed, reversing their convictions in light of Mir anda's implicit assurance that silence will have no advers e consequences. The Court stated that "it would be fundamentally unfair and a deprivation of due proce ss to allow the arrested person's silence to be used to i mpeach an explanation subsequently offered at trial." Id. at 618. Therefore, the Court held, "the use for impeachment purposes of petitioners' silence, at the time of ar rest and after receiving Miranda warnings, violate[s] the Du e Process

Clause of the Fourteenth Amendment." Id. at 619.

In this case, we believe that the state prosecutor violated the due process principles established in Doyle by seeking to elicit testimony about Hassine's post-arrest, po stMiranda silence. The record shows that the prosecut or's cross-examination of Hassine proceeded as follows:

Prosecutor: How long have you been sitting in jail , sir?

Hassine: Close to seven months. Prosecutor: And you have been sitting in Bucks Cou ntry

Prison? Hassine: No, sir. Prosecutor: You were in Bucks County Prison for a time?

Hassine: About a month and a half. Prosecutor: You were sitting in Holmesburg Prison?

Hassine: For about five months. Prosecutor: And another prison? Hassine: Delaware County. Prosecutor: And conditions are not very good? Hassine: No, sir. Prosecutor: You sat for seven months in prison wit h the knowledge of what was really involved in regard to this gun, and you just kept it to

9yourself because your attorney said to keep it

to yourself?

Hassine's Attorney: Objection.

The Court: Sustained.

Prosecutor: But you kept it to yourself until you c ame in to a court of law today and said it for the first time, in any event, outside of perhaps your family or your lawyer?

Hassine's Attorney: Objection.

Prosecutor: For the first time?

Hassine's Attorney: That is objected to.

The Court: Sustained.

On three occasions, and over three objections, the prosecutor asked Hassine why he had remained silent

about the crime after his arrest and after Miranda warnings had been given. It is clear from these questions th at the prosecutor was attempting to elicit the precise inf erences that the State is prohibited from exploiting under Doyle. Further, the trial court did not provide, and defen se counsel did not request, any curative instructions for the jury. In this regard, the instant case is distingui shable from Greer v. Miller, 483 U.S. 756 (1987), where the Sup reme Court found no Doyle violation. In Greer, the seque nce of events "-- a single question, an immediate objectio n, and two curative instructions -- clearly indicate[d] th at the prosecutor's improper question did not violate [the petitioner's] due process rights." Id. at 766. Here , the prosecutor asked questions concerning the amount of time Hassine had spent in prison, questioned Hassine abo ut the poor conditions he had experienced in confinement, and then, despite objections by the defense, asked thre e questions that are clearly prohibited by Doyle, and then made statements in his closing that could be unders tood to refer to that same silence. Moreover, the trial cou rt gave no

curative instructions at all. We thus find that the government violated Hassine's right to due process under Doyle.

In so ruling we reject the State's argument, and th e view of the Pennsylvania Superior Court in Hassine I, 49 0 A.2d

10at 451, that the prosecutor's questions were noneth eless

permissible because Hassine had "opened the door" i n his direct testimony to inquiries about his post-arrest silence. Hassine had told the jury on direct examination tha t his attorney had offered to make him "available to the police," by, for example, offering to present his father to the police "in connection with identifying the gun." The State contends that by asking Hassine about his post-arre st silence, the prosecutor was merely challenging Hass ine's testimony as to his behavior following arrest by im peaching

Hassine's claim on direct examination that he was "available" and willing to cooperate with the autho rities.

The State's argument is based on an exception conta ined in footnote eleven in Doyle, which provides that "p ost-arrest silence could be used by the prosecution to contrad ict a defendant who testifies to an exculpatory version o f events and claims to have told the police the same version upon arrest." 426 U.S. at 619 n.11. As the Supreme Court explained, "[i]n that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest." Id.

We agree that the State's argument has some allure under Doyle as a basis for the prosecutor to use Ha ssine's post-arrest silence for impeachment. However, we fi nd, as the district court did, that Hassine's direct testi mony was far too innocuous and ambiguous to constitute an exculpatory version that would justify the pointed crossexamination in this case. The Doyle footnote applie s when

a witness testifies on the stand to a version of ev ents and indicates that he previously told that version to l aw enforcement. The government can then pursue its pos ition that the story was not previously told, and may bri ng out

on cross-examination the fact that the defendant wa s silent following arrest. As the one case cited in the Doyl e footnote makes clear, "to be admissible, keeping silence mus t be much more than ambiguous. It must appear to be an a ct blatantly inconsistent with the defendant's trial t estimony." United States v. Fairchild, 505 F.2d 1378, 1382 (5t h Cir. 1975). In this case, however, there is no contentio n that

Hassine described a version of events on the stand and

11indicated that he had previously told that same sto ry to the

police. Rather, the only testimony which harkens ba ck to Hassine's previous behavior deals with his declarat ion that he was "available" for further questioning. Hassine did not claim to have told the police an exculpatory story after arrest, did not imply that he had participated acti vely in the investigation, and never suggested that he had surr endered his right to silence by speaking directly with the authorities. The only relevance of the prosecutor's questioning to Hassine's previous silence, therefor e, implicates his right to remain silent more than it constitutes questioning probative of his truth or c redibility.2

The Doyle footnote exception only permits the prosecution to use post-arrest silence to impeach t he credibility of the defendant's version of what he d id following arrest; the government cannot use the sil ence to impeach the exculpatory story itself or to draw inf erences suggesting the defendant's guilt. See Doyle, 426 U. S. at 619 n.11; United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994) ("[T]he government may use defendant's silenc e for the limited purpose of impeaching his testimony; it may not argue that the defendant's silence is inconsistent with his claim of innocence."); Alo v. Olim, 639 F.2d 466, 4 68 (9th Cir. 1980) (questions implying that the defendant's silence is substantive evidence of guilt are not permitted under the Doyle exception). In the present case, rather than simply asking Hassine if he had told his story to the poli ce after arrest, the prosecutor asked incredulously, "[y]ou sat for seven months in prison with the knowledge of what w as really involved in regard to the his gun, and you j ust kept it to yourself because your attorney said to keep i t to yourself?" We believe that questions like this clea rly invite

___________________________________________________ ______________

2. Hassine's appeal thus differs greatly from Fairc hild, where the court determined that post-arrest silence was admissible because the defense attorney had specifically asked the defendant if he had "cooperated fully with the FBI and U.S. Attorney's office in respondi ng with anything that you all wanted." 505 F.2d at 1383; see also Leecan v. Lopes, 893 F.2d 1434, 1442 (2d Cir. 1990) (emphasis added) (finding that an inquiry into post-arrest silence was warranted where the defenda nt's testimony "left the clear implication that he had proffered his ali bi to the police upon
surrender").

12the jury -- in violation of Doyle -- to reject Hass ine's story

and to infer that Hassine's post-arrest silence was a sign of his guilt.

Consequently, we conclude that the footnote eleven exception in Doyle is of no aid to the State. The p rosecutor violated Hassine's right to due process at trial by seeking todraw impermissible inferences about Hassine's postMiranda silence following arrest.

III. HARMLESS ERROR

Having found a violation of Hassine's federal constitutional rights, we turn next to the issue of whether

the error at Hassine's trial can be characterized a s harmless. The Supreme Court has identified two type s of

constitutional errors: structural and trial. See Ar izona v. Fulminante, 499 U.S. 279, 306-10 (1991). "A structu ral error is a defect in the trial mechanism itself, af fecting the entire trial process, and is per se prejudicial." Y ohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996) (citations omitted) . By contrast, "trial error occurs during the presentati on of the case to the jury, and may be quantitatively assesse d in the context of all other evidence." Id. The Supreme Cou rt has written that "Doyle error fits squarely into the ca tegory of

constitutional violations which we have characteriz ed as trial error." Brecht, 507 U.S. at 629 (quotation om itted). Therefore, we must assess whether the Doyle violati on at

Hassine's trial constitutes harmless error in the c ontext of all the evidence presented by the State.

The nature of the harmless error inquiry, however, has been modified during the pendency of Hassine's habe as corpus proceedings, as discussed above. For many ye ars, the standard in both direct and collateral appeals for determining whether a constitutional trial error wa s harmless was the test established in Chapman v. Cal ifornia,

which held that a conviction would be vacated unles s the government could prove that the error was "harmless beyond a reasonable doubt." 386 U.S. at 24. In 1993

, however, the Supreme Court held in Brecht v. Abraha mson, 507 U.S. at 619, that harmless error in habeas case s should be judged instead by the standard for

13nonconstitutional errors set forth in Kotteakos v. United

States. Thus, under Brecht, habeas relief can now b e granted on collateral review only if the constituti onal trial error "had substantial and injurious effect or infl uence in determining the jury's verdict." 507 U.S. at 623 (q uoting Kotteakos, 328 U.S. at 776).3

Ordinarily, this would present no problem on appeal

, because we would apply the Brecht standard to a pet itioner seeking habeas relief. In this case, though, Hassin e argues that he is entitled to the benefit of the older, mo re stringent Chapman standard because no state court has ever evaluated his claim under Chapman on direct review. Before proceeding to an application of the harmless error test, we must therefore resolve the following thres hold issue: should a federal court apply the Brecht stan dard for

harmless error in a habeas case where the state cou rts

have never conducted a review of the error on direc t appeal under Chapman? The district court found that Brecht should apply regardless of the actions of the state courts, and we agree.

A. Whether Brecht or Chapman Should Apply

The federal courts remain divided as to whether Bre cht or Chapman applies in a situation in which a habeas petitioner has never had his claim evaluated under Chapman on direct appeal. The Eighth Circuit, and a t least two district courts, have concluded that the "rule announced in Brecht does not apply and that the Cha pman harmless error standard is the appropriate test in this case." Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8 th Cir.

___________________________________________________ ______________

3. Brecht adopts a more deferential standard on col lateral review for cases involving constitutional trial errors. Nevert heless, the degree of

the difference in practice remains to be seen as the ne w test is applied. As Justice Stevens, whose concurrence provided the dec isive fifth vote in Brecht, noted, "[g]iven the critical importance of the faculty of judgment in administering either standard, however, th[e] di fference [in emphasis] is less significant than it might seem . . . . In t he end, the way we phrase the governing standard is far less important than t he quality of the judgment with which it is applied." 507 U.S. at 643 (Stevens, J., concurring).

141993); see also Starr v. Lockhart, 23 F.3d 1280, 12 92 (8th

Cir. 1994); Lyons v. Johnson, 912 F. Supp. 679, 687 -89 (S.D.N.Y. 1996), aff'd, 99 F.3d 499 (2d Cir. 1996); Rickman v. Dutton, 864 F. Supp. 686, 712 (M.D. Tenn. 1994), aff'd sub nom. Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1 997). By contrast, the Fourth, Fifth, Seventh, Tenth, and Eleventh circuits have all held that "Brecht, rathe r than Chapman, enunciates the appropriate standard for determining whether a constitutional error was harm less in a federal habeas challenge to a state conviction or sentence," regardless of the standard employed by t he state courts. Hogue v. Johnson, 131 F.3d 466, 499 (5th Ci r. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1297, (1998);4 see also Sherman v. Smith, 89 F.3d 1134, 1140-41 (4 th Cir. 1996), cert. denied, ___ U.S. #6D6D 6D#, 117 S. Ct. 765 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1 995); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995) , cert. denied, 516 U.S. 1041 (1996); Horsley v. Alabama, 4 5 F.3d 1486, 1492 n.11 (11th Cir. 1995).5 Hassine contends that we should not implement Brecht as we normally would , but that we should cling to the old Chapman standard, notwithstanding the new formulation handed down by the Supreme Court. However, we are unwilling to find an exception to Brecht's "standard formula," Tyson, 50 F.3d at 446, because we disagree with the four arguments th at Hassine offers in contending that Chapman should ap ply.

First, the plain language of Brecht makes no distin ction

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4. A panel of the Fifth Circuit recently noted its disagreement with Hogue, but concluded that "we may not ignore the [H ogue] decision, for in this circuit one panel may not overrule the deci sion of a prior panel." Barber v. Johnson, 145 F.3d 234, 237 (5th Cir. 1998 ), petition for cert. filed, (U.S. Sep. 10, 1998) (No. 98-6001). Hogue th us remains good law

in the Fifth Circuit.

5. Two courts passed on the issue after finding tha t the trial error would

not have been harmless under either standard. See L yons v. Johnson, 99 F.3d 499, 503 (2d Cir. 1996) ("[D]ue to the magnitu de of the trial court's error . . . we need not decide whether . . . Chapma n or Brecht is the appropriate standard to apply in this case."); Hann a v. Riveland, 87 F.3d 1034, 1038 n.2 (9th Cir. 1996) ("[W]e do not need t o decide this issue because, even under Brecht's less stringent standar d of review, the error
cannot be deemed harmless.").

15that requires us to employ Chapman on collateral re view.

The issue in Brecht was "whether the Chapman harmle sserror standard applies in determining whether the prosecution's use for impeachment purposes of petit ioner's post-Miranda silence, in violation of due process u nder Doyle v. Ohio, entitles petitioner to habeas corpus relief." 507 U.S. at 622-23 (footnote and citation omitted). The

Court held that "the Kotteakos harmless-error stand ard applies in determining whether habeas relief must b e granted because of constitutional error of the tria l type." Id. at 638; see also id. at 623 ("[T]he standard for de termining whether habeas relief must be granted is whether th e Doyle error `had substantial and injurious effect or infl uence in determining the jury's verdict.' ") (quoting Kottea kos, 328 U.S. at 776). The Court never restricted the issues or the holding in Brecht to situations where a petitioner has already had his or her claim evaluated by the state courts under Chapman. Therefore, we are not persuaded that we should read an exception into Brecht's harmless err or rule when no such exception is even implicit in the Cour t's opinion.

Second, in contrast to the views of some courts, we do not believe that we should regard the facts in Brec ht as limiting the Court's holding to cases in which Chap man has previously been applied. Because the Court decided Brecht after the Wisconsin Supreme Court had already ruled on the harmless error issue under Chapman, several cou rts have viewed prior Chapman review as integral to Bre cht's result.6 We disagree.

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6. For example, the Eighth Circuit has written that Brecht was "based largely on the notion that because the state courts can properly apply the Chapman harmless error standard on direct revie w, the federal habeas courts need only review those decisions unde r the Kotteakos harmless error standard." Orndorff, 998 F.2d at 143 0. Likewise, the district court in Lyons stated that Brecht "was pre mised largely on respect for the actual, conscientious review of har mlessness performed by four prior courts -- both federal and state-- th at applied Chapman." 912 F. Supp. at 689. These courts thus believe that Brecht intended to alter the harmless error standard only for those ha beas cases which, like Brecht, involved a previous application of Chapman on direct appeal.

16While the Court noted that "it scarcely seems logic al to

require federal habeas courts to engage in the iden tical approach to harmless-error review that Chapman requ ires state courts to engage in on direct review," 507 U. S. at 636, its holding was based primarily on a finding -- apa rt from the particular facts or history of the case -- that "the costs of applying the Chapman standard on federal habeas outweigh the additional deterrent effect, if any, t hat would be derived from its application on collateral revie w." Id.

In Brecht, the Court identified four considerations in justifying the application of a more relaxed harmle ss error standard for habeas petitions, including the States ' interests in the finality of convictions, comity, f ederalism, and the recognition that "liberal allowance of the writ degrades the prominence of the trial itself." Id. a t 635 (quoting Engle v. Isaac, 456 U.S. 107, 127 (1982)). The Court then reasoned comprehensively that:

[o]verturning final and presumptively correc t

convictions on collateral review because the State cannot prove that an error is harmless under Chapman undermines the States' interest in finality and infringes upon their sovereignty over criminal matters . Moreover, granting habeas relief merely because there is a reasonable possibility that trial error cont ributed to the verdict, is at odds with the historic meanin g of habeas corpus -- to afford relief to those whom soc iety has grievously wronged. Retrying defendants whos e convictions are set aside also imposes signi ficant social costs, including the expenditure of addition al time and resources for all the parties involved, the erosion of memory and dispersion of witnesses that acco mpany the passage of time and make obtaining convi ctions on retrial more difficult, and the frustration of society's interest in the prompt administration of jus tice.

507 U.S. at 637 (citations and quotations omitted). This analysis led the Court to conclude that "[t]he imba lance of the costs and benefits of applying the Chapman harm lesserror standard on collateral review counsels in fav or of applying a less onerous standard on habeas review o f constitutional error." Id. at 637; see also id. at 637-38 ("The

Kotteakos standard is . . . better tailored to the nature and

17purpose of collateral review and more likely to pro mote the

considerations underlying our recent habeas cases." ). Thus, Brecht was clearly not premised on the notion that the state courts had already conducted a Chapman review of harmless error on direct appeal. The fact that the state courts may or may not have performed such a review was of minor importance to the Court's view that the Ko tteakos standard should be applied consistently in collater al proceedings.

Third, contrary to Hassine's argument, we believe t hat the policy interests identified in Brecht are nonet heless implicated in cases where the state courts have not evaluated a petitioner's claim under Chapman. Hassi ne urges that we follow Lyons, in which a district cou rt stated that Brecht should be used only when federal courts would be repeating Chapman analyses performed by the stat e courts, because it is only in these situations that the federal courts demonstrate a "lack of respect for s tate courts' ability as federal constitutional interpret ers, and hence . . . violate obligations of comity and princ iples of federalism." 912 F. Supp. at 689; see also Barber, 145 F.3d at 238 (Dennis, J., concurring) (stating that the f ederal courts cannot defer "to the systemic values offinal ity, federalism, and comity . . . unless there has in fa ct been a good-faith State effort to protect constitutional r ights by applying the Chapman standard").

Once again, however, we disagree. Finality, comity, and

federalism do not turn on whether the state courts have performed a Chapman analysis, but depend, rather, o n the fact that they have rejected a defendant's direct a ppeal. Indeed, a federal habeas court which overturns a st ate conviction on collateral review still upsets a Stat e's interest in finality, and still raises federalism, comity, a nd trial process concerns, regardless of whether the state c ourts have previously identified the constitutional error or have performed a Chapman analysis on direct appeal.

In light of the Court's reasoning and holding in Br echt, it is anomalous to say that a Chapman standard should apply in any habeas case based on concerns such as federa lism, comity, or finality. Brecht stands for the proposit ion that these concerns are to be advanced by employment of the

18Brecht standard itself. Thus, not to apply Brecht, and to

apply instead a less deferential standard, is to nu llify not merely the policies that the Court has advanced, bu t the very import of the Brecht decision. In fact, the Su preme Court has repeatedly emphasized the importance of deference to State "sovereignty over criminal matte rs," Brecht, 507 U.S. at 637, and to the finality of cri minal judgments, outside the context of Chapman. In Teagu e v. Lane, for example, the Court restricted the ability of habeas petitioners to establish new constitutional rules o n collateral review, in part because the "[a]pplicati on of

constitutional rules not in existence at the time a conviction became final seriously undermines the pr inciple of finality which is essential to the operation of our criminal justice system." 489 U.S. 288, 309 (1989). Likewise , in Wright v. West, the Court stressed the "significant costs" of habeas review. 505 U.S. 277, 293 (1992) (quoting En gle, 456 U.S. at 126). "Among other things," the Court w rote, "it disturbs the State's significant interest in repose for concluded litigation, denies society the right to p unish some admitted offenders, and intrudes on state sove reignty to a degree matched by few exercises of federal jud icial authority." Wright, 505 U.S. at 293 (quotations omi tted).

Therefore, while the absence of a state court Chapm an review may make the considerations identified in Br echt less compelling, it certainly does not eliminate th em. As our sister circuits have concluded, Brecht is still the general rule to apply in habeas cases, even in situations w here the state courts never employ Chapman, because "princip les of federalism, comity, and finality apply regardless o f the harmless error standard used by the state court." S herman, 89 F.3d at 1141; see also Tyson, 50 F.3d at 446 ("T he reasons the Court gave in Brecht for adopting a les s stringent rule are independent of the rule applied in the state appellate process.").7

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7. We do not mean to imply that habeas relief shoul d be limited in the name of federalism and comity alone. We note merely that Supreme Court jurisprudence requires us to consider the sys temic costs of applying certain standards on collateral review, an d that, in this case,

those costs are substantial even if the state court s never perform a Chapman analysis on direct appeal.

19Finally, we note that we are wary of the practical impact

of applying Chapman to every case where a prior Cha pman review has not occurred. As the Seventh Circuit rec ognized in Tyson, "ordinarily . . . the state court will no t have found any error and therefore will have had no occasion t o apply any standard of harmless error. Brecht itself was a fluke in this regard; the state courts had considered the is sue of harmless error and applied the Chapman standard." 5 0 F.3d at 446.8 Consequently, any rule requiring Chap man to

be used when the state courts fail to address harml ess error would render Brecht inapplicable to the major ity of habeas petitions and would "rob the decision of any general significance." Id. Given the substantial interests identified in Brecht, and given the reasoning of the opinion, we find it highly unlikely that the Supreme Court could hav e sanctioned such a result.

Cases like Brecht and Teague express the Court's be lief that collateral review entails heightened deference and respect to the state courts, and we must follow gov erning precedent when it applies, as it does here. Accordi ngly, we hold that a federal habeas court performing a harml ess error inquiry on collateral review must employ the standard for harmless error articulated in Brecht, even if t he state courts have never reviewed the error on direct appe al under Chapman.

B. Whether Brecht Should be Applied to Hassine

Even if Brecht applies generally to collateral proc eedings,

Hassine contends that we should still review his cl aims under Chapman due to the unique and unusual facts o f his case. In particular, he argues that Chapman review is appropriate here because (1) he forfeited the right to pursue an appeal in the Supreme Court when Chapman was sti ll the law for harmless error on collateral review, an d because

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8. The state courts may not use Chapman to evaluate harmless error on direct appeal if, as here, they conclude that there was no constitutional error and thus do not perform the harmless error an alysis at all, if they find that the petitioner has defaulted procedurally on his claim, or if there is no opportunity to address the error becaus e it is discovered only after the defendant has already exhausted his state appeals.

20(2) the district court proceedings were marked by s uch

extensive delay as to violate his right to due proc ess.9 We are not persuaded by either contention.

First, the fact that Hassine made the deliberate ch oice to forego seeking relief in the Supreme Court is irrel evant. Hassine could not, of course, have anticipated an intervening change in the law, but that alone is in sufficient to prohibit a retroactive application of Brecht on collateral review. Hassine made a tactical decision to bypass the Supreme Court and to proceed to the district court for habeas relief, and we will not reward that decision by employing a less stringent standard when reviewing his petition.

Second, while we agree that Hassine experienced excessive delay in the processing of his petition, we do not believe that he is entitled to habeas relief, inclu ding any altered standard for harmless error, even if the de lay in the district court gave rise to a violation of his due process rights.10 In Heiser v. Ryan, 951 F.2d 559, 563 (3d Cir. 1991) ("Heiser I"), we acknowledged that a delay in certain collateral proceedings can violate a prisoner's fun damental right to due process. We reviewed the claim of a pe titioner whose state action for post-conviction relief had b een pending for nearly four years, and we stated that"d elays in post-verdict process may violate the Due Process Cl ause. . . . The due process clause protects against more than delay in trial and sentencing. It guarantees as wel l the right

to attack a conviction." Id.

After Heiser I was remanded to the district court, however, we clarified our earlier remarks by revisi ting the

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9. Hassine also argues that his appeal is different because no state court has ever conducted a Chapman review of his claims. As we discussed above, however, we believe that this does not alter our analysis in determining whether Brecht applies.

10. While we certainly do not condone the extraordi nary delay in processing Hassine's petition, we wish to make clea r that we are not holding that the delay constituted a violation of d ue process. We hold merely that Hassine would not be entitled to relief through habeas corpus proceedings even if the delay did amount to a constitutional

violation.

21due process issue in a subsequent appeal. See Heise r v.

Ryan, 15 F.3d 299 (3d Cir. 1994) ("Heiser II"). In Heiser II, we still recognized that excessive delay in state c ollateral proceedings could violate due process, but we made clear that while the defendant could seek damages against counsel responsible for the delay, a writ of habeas corpus was not the proper remedy in such a case. Id. at 30 7. In other cases, we have indicated that petitioners exp eriencing delay can seek a writ of mandamus to compel the dis trict

court to reach a decision on the habeas claim. For example, in Madden v. Myers, we addressed a petitioner's arg ument

that mandamus was warranted where seven months had elapsed since the filing of the Magistrate Judge's Report and Recommendation without any action by the distri ct court. 102 F.3d 74, 76 (3d Cir. 1996). We ultimatel y denied the request, but, in our only published opinion on this issue, we noted that the petitioner's claims of del ay had "force" and were "of concern." Id. at 79. Moreover, we stated that "[a]lthough this delay is of concern, it does not yet rise to the level of a denial of due process," implying that at some point, delay by the district court could becom e so excessive as to warrant the issuance of a writ of mandamus. Id. (emphasis added).11 We are not alone in entertaining writs of mandamus due to extraordinary federal delay. See, e.g., Johnson v. Rogers, 917 F. 2d 1283, 1285 (10th Cir. 1990) (granting a writ of mandamus after a fourteen-month delay by the district court); McClel lan v. Young, 421 F.2d 690, 691 (6th Cir. 1970) (granting a writ of mandamus where the district court had delayed it s habeas ruling pending a decision by the Supreme Cou rt).12

However, while we have shown a willingness to issue

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11. In fact, a review of our unpublished opinions r eveals that we routinely entertain mandamus petitions complaining of extraordinary delay in habeas corpus proceedings at the district court level.

12. We hasten to add that "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances." Kerr v. United States Dist. Ct., 426 U.S. 394, 402 (1976). Thus, a habeas petitioner seeking mandamus in these cases must experience extraordina ry delay, "must have no other adequate means to obtain the desired relief, and must show that the right to issuance is clear and indisp utable." Madden, 102

F.3d at 79.

22writs of mandamus and to entertain lawsuits for dam ages,

we have never granted habeas relief because of a de lay in the processing of a petition, and we decline to do so here. The federal courts are authorized to provide collat eral relief where a petitioner is in state custody or under a f ederal sentence imposed in violation of the Constitution o r the

laws or treaties of the United States. 28 U.S.C.SS 2254, 2255. Thus, the federal role in reviewing an applic ation for habeas corpus is limited to evaluating what occurre d in the state or federal proceedings that actually led to t he petitioner's conviction; what occurred in the petit ioner's collateral proceeding does not enter into the habea s calculation. We have often noted the general propos ition that habeas proceedings are "hybrid actions"; they are "independent civil dispositions of completed crimin al proceedings." See, e.g., Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996). Federal habeas power is"li mited

. . . to a determination of whether there has been an improper detention by virtue of the state court jud gment." Henderson v. Frank, No. 97-3041, 1998 WL 456254, at *9 (3d Cir. Aug. 6, 1998). As the Seventh Circuit has noted, "[d]elay in processing [a] collateral claim does no t make the continued imprisonment of the defendant unlawful, a nd hence, does not warrant federal habeas corpus relie f." Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1 996), cert. denied, ___ U.S. ___, 117 S. Ct. 266 (1996); see also Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir.) (stating that "federal habeas corpus cannot remedy a delay i n state collateral proceedings because such an error has ab solutely nothing to do with the reason for a defendant's confinement"), cert. denied, ___ U.S. ___, 118 S. C t. 380 (1997).13

Therefore, to the extent that a petitioner wishes t o claim that delay in the processing of a collateral petiti on violates due process, we hold that the petitioner's remedy, if any, is through such avenues as a lawsuit for damages or a writ of mandamus rather than through the habeas corpus

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13. Providing relief to a petitioner in state custo dy because of a delay

in the federal courts would also greatly undermine pri nciples of federalism and comity by disturbing a state court judgment due to a federal court

error.

23proceeding itself. In the case at bar, we thus conc lude that

Brecht still applies in evaluating whether the Doyl e violation

at Hassine's trial constituted harmless error.

C. Application of the Brecht Standard for Harm less Error

Having found that Brecht applies to Hassine's petit ion, we proceed next to an examination of whether the distr ict court properly concluded that the prosecution's Doy le violation was harmless.14 Under Brecht and its prog eny, a constitutional trial error is not harmless if the c ourt is in "grave doubt" as to whether the error had a substan tial and injurious effect or influence in determining the ju ry's verdict. O'Neal v. McAninch, 513 U.S. 432, 436 (199 5). "Grave doubt" exists when, "in the judge's mind, th e matter is so evenly balanced that he feels himself in virt ual equipoise as to the harmlessness of the error." Id. at 435. Moreover, it is "inappropriate to ask whether there was sufficient evidence to support the result, apart fr om the phase of the trial affected by the error. The corre ct inquiry

is whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error." Yohn, 76 F.3d at 523 (citati ons omitted).

Hassine contends that the Doyle violation could not have

been harmless because it went to the heart of his d efense. He maintains that because he was the only witness testifying as to his version of the events, and bec ause the Doyle error undermined his credibility, it necessar ily had a "substantial and injurious effect or influence in d etermining the jury's verdict." Brecht, 507 U.S. at 623 (quoti ng Kotteakos, 328 U.S. at 776). In evaluating Hassine' s claim, we must thus determine whether, and to what extent, the jury's decision to accept the State's version of th e facts rather than Hassine's was influenced by the prosecu tor's

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14. The district court also evaluated Hassine's cla im under Chapman, stating in a footnote that "the record establishes sufficient evidence of Hassine's guilt to suggest that the Doyle error wou ld have been harmless under the Chapman reasonable-doubt standard as well ." Hassine III, 1997 WL 677152, at *10 n.8. However, we need not re ach this issue because we have determined that Chapman does not ap ply.

24Doyle violation. If the jury disbelieved Hassine an d

convicted him because of the Doyle violation, the e rror was not harmless and we will grant the petition. The cr ucial inquiry is the "impact of the error on the minds of the jurors in the total setting." Yohn, 76 F.3d at 523 (citing Kotteakos, 328 U.S. at 764). While the nature of th e evidence against Hassine is important, we must also examine the phases of the trial affected by the err or, and

determine whether the error had a substantial influ ence on the verdict despite sufficient evidence to support the result apart from the error. See id. (citing Kotteakos, 32 8 U.S. at 765). In so doing, we must of necessity weigh the i mpact of evidence on the jury and cannot help but make a jud gment as to how the jury would reasonably perceive Hasssi ne's version of events with and without the Doyle violat ion.

At the outset, we note our agreement with the distr ict court's finding that the evidence, as mounted throu gh a parade of Commonwealth witnesses, was substantial indeed. The witnesses testifying as to Hassine's pl anning of, and intent to commit, the crime were numerous, and their

stories consistent.15 A number of witnesses testifi ed to an initial meeting in which Hassine called for Kellet' s execution. (N.T. 34, 111-12, 743-44, 756-57, 810, 8 22).16

Several witnesses also recalled that Hassine had ac tively searched for a weapon to carry out his plan: at the initial meeting, he demanded that the other employees try t o procure a weapon (N.T. 36, 744, 774); he had discus sed buying a .357 with Breed members Tuite and Schwab ( N.T. 56-59, 555-57, 626-27); he asked his employee Ron Wharton to buy a gun and to participate in the plan to kill

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15. The Commonwealth put 34 witnesses on the stand. Among those

witnesses central to the Commonwealth's case were: 1) Eric Decker, a sometime employee of Hassine's who shot the Kellets , Sofield, and Puerale; 2) Greg Orlowski, the manager and day-to-d ay owner of the Market; 3) Ron Wharton and Billy Hayes, employees a t the Market; 4) Valerie Lynch, Decker's girlfriend; 5) Ron Tuite an d Joseph "Critter" Schwab, members of the Breed motorcycle gang; and 6 ) Theodore Camera, a tenant of the Hassine family and a former classmate of

Hassine's.

16. Ron Wharton recalled Hassine stating that, "He wanted him wasted. He had to set an example." (N.T. 744).

25Kellet (N.T. 747, 760); and he visited his tenant T heodore

Camera and asked Camera to find him a gun. (N.T. 48 5-86, 487-88, 490).

Hassine settled on a weapon for the shootings: a st olen .25 caliber automatic handgun. (N.T. 933). Both Dec ker and Wharton testified that Hassine gave Decker the. 25 while the three were in the Market van. (N.T. 53, 7 49).17 Hassine and Decker also went to a gun store where H assine bought a box of ammunition and signed for the purch ase. (N.T. 59-60, 708-10).

After buying the bullets, Decker and Hassine drove by Kellet's house, where Hassine told Decker to shoot him then and there with the .25. (N.T. 61). Decker decl ined because it was daytime, and a witness was present. (N.T. 61-62). Hassine and Decker repeatedly test fired th e gun into the back wall of the store, but the .25 was malfunctioning and had to be put aside, despite the ir attempts to fix it. (N.T. 58-60, 62-63, 750-52, 811 -12).18

Hassine and his co-defendant Orlowski also met with Breed members Tuite and Schwab to discuss killing K ellet. After bailing Tuite out of jail on a gun charge inv olving the .357, Hassine contacted him about a "deal" involvin g Kellet, and the four met to discuss a contract killing. (N. T. 557, 560, 560-61, 562, 627, 630, 753-55).19 Tuite and S chwab's asking price of $1500 was too high, however, so the four agreed instead that they would beat Kellet up for $ 500 ($250 credit for the bail and $250 for the beating) . (N.T. 560-62, 563, 628-629, 632).20 Rather than attack Ke llet, as

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17. Decker testified that Hassine handed him the gu n and stated "here, hit him in the head and leave it there." (N.T. 53).

18. The .25, a spent shell, and photos of the holes in the Market wall were entered into evidence. (N.T. 51-52, 792-97, 80 0-01). 19. Both Tuite and Schwab testified that Hassine ap peared upset and angered by the challenge Kellet posed to his author ity. Tuite: "Hassine was pissed off--pissed off that somebody would step on his toes." (N.T. 563). Schwab: Hassine was "ruffled because somebody messed with one of his boys." (N.T. 628).

20. Schwab mentioned that Orlowski and Hassine want ed to continue to consider the possibility of killing Kellet for mone y: "They were haggling back and forth about the fifteen hundred bucks, so I took the two fifty. They wanted a night to think about if it was worth fifteen hundred bucks to waste Kellet." (N.T. 629-30).

26agreed, however, Tuite and Schwab decided to warn K ellet

that Hassine and Orlowski wanted to kill him and ke pt the $250. (N.T. 566, 630).21

The Commonwealth also presented evidence of Hassine 's conduct both at and after the incident that pointed to his guilt. On the night of the shootings, Decker testif ied that he met Hassine at the market and said, "Tonight's the night-- this cat has got to go. We'll use your gun. I want two hundred and fifty dollars." (N.T. at 77, 218-19). H assine agreed and said he would come back to pick Decker u p with his car. Id. Decker further testified that Has sine then

drove him to Trenton and retrieved the .380 Llama handgun used in the shootings from his parents' hou se; gave him directions to Kellet's house; told him tha t he would wait for him and drive him away after the sho otings; and gave him a Yankees batting helmet to disguise h imself during the shootings. (N.T. 83-85, 87-88).

Hassine then went to Orlowski's house, where Hassin e and Orlowski met a third person, Michael Thompson ("Thompson"), who testified that all three got into his car. (N.T. 861-63). Hassine was carrying a metal pipe. ( N.T. 870). Hassine told Thompson to drive to the parking lot

across the street from Kellet's residence and then to other locations; Hassine whistled out the window from tim e to time, and at one point Hassine told Thompson to get out of the car and call for "Eric". (N.T. 863-870, 874-884 , 905-07).22 In the course of their drive, they heard two shots, and Hassine stated, "Oh shit, that's my father's gun, I hope that asshole doesn't get caught." (N.T. 868-69, 881, 122 4).

After the murder, when Hassine and Orlowski returne d from their attempts to find Decker, Hassine told Or lowski that they still had to find Decker, because he was afraid Decker would be arrested. (N.T. 1227-28). The follo wing morning, Hassine told his employee Wharton to drive the pair to Decker's apartment, so they could try once again to retrieve the .380 from Decker. (N.T. 761). When the y

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21. Hassine later complained that Tuite and Schwab had "ripped him
off." (N.T. 755).

22. In the course of their drive, the three went to the Dunkin' Donuts, where Hassine mentioned that they had been seen. (N .T. 867).

27realized Decker had been arrested, Hassine told Dec ker's

girlfriend, Valerie Lynch, to get rid of the gun. ( N.T. 761-63, 1043-44, 1046-47). As word spread that the case aga inst Hassine was building, Tuite and Schwab decided to t ry to intimidate Hassine into giving them $10,000 to kill Commonwealth witnesses, and Hassine considered thei r demands but did not ask them to follow through on t he plan.23 (N.T. 568, 572, 577-78, 631-32).

Not only did the Commonwealth's case present eviden ce of Hassine's guilt but also evidence of both a cove rup and instances of lying that detracted from Hassine's cr edibility.On the night of the shootings, Hassine told his codefendant Orlowski to keep his "mouth shut" if the police questioned him. (N.T. 1228). Hassine's attempts to influence others continued as the investigation int ensified. After Decker was arrested for the shootings, Hassin e tried to make Orlowski sign a statement holding him respo nsible for the crimes, and the two held practice sessions in which Hassine and Orlowski practiced Orlowski's story. (N .T. 1388-90). Valerie Lynch testified that Hassine told her to lie about his and Decker's whereabouts the night of the shootings, saying: "Remember, Valerie, I was in New York, and Eric Decker was at home." (N.T. 764-65, 1051-52 ). In the course of an intercepted phone conversation, Ha ssine queried Thompson about what Thompson had told the police during questioning, and in the course of tha t conversation the two agreed, ostensibly, that they would keep each other out of the case.24 (N.T. 892-94, 90 1).

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23. Schwab testified as follows:

He was all frazzled; he was confused -- "I c an't think--I don't

know what to do" -- imbalanced -- all that shit, and he walked around.

He said he would talk to his old man to see if he could come up

with some bucks.

Q: Did you talk to him any more after that, Mr. Schwab?

A: Yeah -- one more time . . . . I told him the pressure was coming down on him. And he said he would try again to get the money. I

told him I would take a van load of steaks-- pack the van with steaks and give me five grand. (N.T. 631-32)

.

24. V: So, as far as they're concerned, you know, y ou were with somebody else that night, right?

28Hassine had made promises to Decker as a part of hi s

agreement to kill Kellet -- an apartment, money, an d a future on "easy street" -- and he continued the pra ctice of offering money or services for cooperation from oth ers after the shootings had taken place. (N.T. 63, 111, 752-5 3, 773). In the course of the conversation in which he urged her to lie, Hassine also promised Lynch that he would help her and her child out with money, cuts of meat, or anyt hing else she needed. (N.T. 1052). Hassine also promised Thompson, in the course of their intercepted phone conversation, that Thompson should look into buying Kellet's house, and that the two could enter into a deal whereby Hassine would put up the money for the hous e and the surrounding property, and Thompson could ke ep the house while Hassine developed the lot. (N.T. 89 6-97, 897-900). In his own testimony, Hassine admitted th at he had no intention of buying the house or developing the lot, but he was making the promise because he wanted to know what Thompson told the police. (N.T. 1563-64).25

Notwithstanding the weight of the evidence presente d by the prosecution, we would have little difficultyfin ding that the Doyle violation had substantially influenced th e jury if, apart from the violation, the phase of the trial mo st directly impacted, namely, Hassine's testimony, presented a strong

counter to the state's evidence. But that is not th e case. Hassine's story was undermined not only by evidence of his

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M: Yeah, as far as they're concerned I wasn't even with you.

V: You weren't.

M: Yeah. (N.T. 901).

25. The weaknesses of the Commonwealth's witnesses were exposed in

the course of both direct and cross-examination. De cker was cross examined on his frequent use of methamphetamine, pr ior record, shifting stories, and his cooperation with the Comm onwealth. (N.T. 116- 17, 130-32, 132-35, 136, 138, 215). Other witnesses were questioned about their prior denials to the police, changes in accounts, drug usage, conflicts with Hassine, bias in favor of Orlowski, or reluctance to testify. (N.T. 569-70, 632-33, 769-71, 784-86, 787-88, 789, 789-90, 872, 903, 963-64). As such, the jury had ample opportunity to consider the credibility and relative sophistication of the Comm onwealth's witnesses.

29disregard for the truth, but by his own testimony i n which

he set forth strained and unrealistic explanations for his conduct and portrayed himself as a mild mannered st ore manager and law student -- a portrayal strikingly a t odds with other evidence depicting his behavior as contr olling, crude, and vulgar. In the course of his testimony, Hassine portrayed himself as a diligent law student who spe nt the bulk of his summer studying for the New Jersey and New York bar exams, which he did not pass. (N.T. 1436-3 8, 1450-52). Hassine also presented himself as a sophi sticated individual versed in business practices who was con cerned about the management of the market. Hassine testifi ed that he made Orlowski run the store efficiently, and tha t he had

threatened to close the store if Orlowski did not r un it in a cost-effective manner. (N.T. 1414-1422, 1492-93). H e also testified that he was aware of the drug dealing at the store after Kellet had beaten and stolen money from Orlow ski, but that he never participated in or profited from the drug dealing. (N.T. 1424, 1510).26 He testified that whe n Wharton took $40 from the register to front a drug deal, he punched him, but did so because he wanted nothing to do wit h Wharton's activities. (N.T. 1426-27, 1492-93).

Hassine denied having any feud with Kellet, having any animosity toward Kellet, or saying that he wanted K ellet killed or "wasted," claiming instead that he had on ly wanted Kellet to be put in jail. (N.T. 1428-29, 143 2-34, 1496, 1497-98, 1500, 1553).27 Hassine also testifie d that by saying he wanted to make an "example of Kellet," he meant that any time Kellet made any motion toward him or any contact with him the police should be called. (N.T. 1429).

Hassine also testified that he had, in fact, rebuff ed Tuite and Schwab's offer to kill Kellet for him by indica ting that

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26. Wharton had testified that Hassine insisted tha t the drugs be "cut" to increase profits. (N.T. 780-81). Hassine also re ferred to Thompson as "Mr. Reds" in his testimony and in the course of th e recorded conversation played for the jury. (N.T. 1470, 1507- 08).

27. Kellet himself testified to the pattern of esca lating threats and harassment between himself, Orlowski, and Hassine p rior to the shootings, as well as prior tensions between himsel f and Hassine. (N.T. 382-83, 394-99).

30the situation with Kellet was being handled by the police.

(N.T. 1455-59). Hassine claimed to have no idea why Tuite

and Schwab would think he would want Kellet killed. (N.T. 1455, 1492).

Hassine admitted that he had engaged in a complex course of behavior involving guns, but testified th at his search for a weapon was undertaken in order to find adequate protection for the store. He conceded that he had contacted Camera about obtaining a gun, even though he knew he could purchase a gun legally; that he had b ought bullets and signed the register at the gun store be cause Decker had asked him to do so, even though he knew that Decker was on probation for a gun charge; and that he had shot up the wall of the store with Decker because D ecker wanted to demonstrate problems with the gun and he just got "carried away" in the process. (N.T. 1430-31, 1 436, 1445-46, 1449-50, 1549-52, 1553, 1556-58). Hassine also explained his conduct on the night of the shootings as being motivated by his desire to get his father's g un back and to prevent a crime from occurring. (N.T. 1466-6 8, 1526-29, 1521-32).

Hassine's version of events was further undercut by evidence that he was not the mild-mannered person h e portrayed himself to be. There was testimony as to his threatening and controlling Orlowski, his need to b e a boss of others and his desire to protect his turf and hi s authority, even if doing so entailed resort to viol ence. (N.T. 488-89, 490, 555, 563, 628, 755, 783, 861-62, 816, 1051, 1441, 1454-55). Other evidence, some of which was conceded in Hassine's own testimony, demonstrated t hat Hassine had violent tendencies, through incidents s uch as his pulling Orlowski's finger out of its socket dur ing an argument and punching Wharton, and through his practices of engaging in threats and feuding. (N.T. 382-83, 1498, 1508, 1556).

The Doyle violation occurred as a series of three questions in the midst of Hassine's testimony, and, later, in two ambiguous references to Hassine's silence in th e prosecutor's closing argument. (N.T. 1543-1544, E.H . 223, 259-60). Based on our assessment of the trial evide nce, we conclude that the questions posed in the midst of H assine's

31testimony did not have a substantial or injurious e ffect on

the jury's verdict. Nor did the two ambiguous refer ences made to a general pattern of silence result in an overemphasis on this silence that destroyed the jur y's ability to look at the evidence in the case, as Has sine contends. Rather, these statements were couched wit hin a general framework of asking the jury to consider th e credibility of the witnesses as a whole, and as suc h, the closing provided the jury with ample latitude to ev aluate Hassine's credibility and the evidence of his guilt apart from those particular statements.

While not minimizing the importance of the right at issue or condoning the prosecutor's conduct, we find that the actual effect of the Doyle violation on Hassine's c redibility before the jury and the inferences drawn by that ju ry, and on the jury's determination of guilt or innocence, was minimal, as the improper questions and statements occurred within a contextual presentation of a stor y that was, on its own, not likely to be viewed as credibl e. Given the overwhelming evidence of Hassine's guilt, and h is lack of credibility apart from the Doyle violation, we c onclude

that the constitutional error at Hassine's trial wa s harmless; there is little doubt that the prosecutor 's Doyle violation did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brech t, 507 U.S. at 623 (quoting Kotteakos, 328 U.S. at 776).

D. The Footnote Nine Exception to Brecht

Hassine's final argument is that even if the Doyle error did not substantially influence the jury, he is sti ll entitled to relief under an exception to the harmless error rule noted in Brecht. In footnote nine of the Brecht opi nion, the Supreme Court stated:

Our holding does not foreclose the possibili ty that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is comb ined with a pattern of prosecutorial misconduct, might s o infect the integrity of the proceeding as to warran t the grant of habeas relief, even if it did not substan tially influence the jury's verdict. Cf. Greer v. M iller, 483 U.S.

32756, 769, 107 S. Ct. 3102, 3110, 97 L. Ed. 2 d 618

(1987) (Stevens, J., concurring in judgment)

.

507 U.S. at 638 n.9. Hassine contends that this cas efits squarely within the Footnote Nine exception, becaus e the state prosecutor committed a "deliberate and especi ally egregious error" at trial. He argues that "it was n othing other than deliberate for the very experienced pros ecutor to persist in pointedly cross-examining Hassine about his post-arrest silence," and maintains that it was "an ything short of deliberate" and egregious when the prosect or commented on Hassine's post-arrest silence during c losing arguments. (Pet'r Br. at 34 n.14.)28 However, after reviewing the origins of the Footnote Nine exception and the few cases in which it has been applied, we conclude that the prosecutor's Doyle violation did not rise to the le vel needed

to warrant habeas relief.29

As the citation in Footnote Nine acknowledges, the exception to Brecht's harmless error standard has i ts roots in the views of Justice Stevens, who has written on several occasions that habeas petitions should be granted w here trial errors are truly extraordinary, even if they are found to

constitute harmless error. Brecht itself cites to J ustice Stevens' concurrence in Greer v. Miller, 483 U.S. a t 767, which, in turn, refers to the Justice Stevens disse nt in Rose v. Lundy, 455 U.S. 509, 538 (1982). In Rose, Justic e Stevens argued that there are at least four types o f

constitutional error:

The one most frequently encountered is a cla im that

attaches a constitutional label to a set of facts that

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28. Hassine does not contend that the error falls w ithin Footnote Nine's prohibition on errors "combined with a pattern of p rosecutorial misconduct." Brecht, 507 U.S. at 638 n.9. He argues only that the Doyle violation was sufficiently "deliberate and . . . eg regious" to warrant habeas relief. We will thus limit our analysis to t his aspect.

29. It is worth noting that Brecht does not truly e stablish an exception for "deliberate and especially egregious errors;" i t merely "does not foreclose the possibility" that such an exception c ould exist. 507 U.S. 638 n.9. Nevertheless, for purposes of this discuss ion, we will assume arguendo that Footnote Nine does support awarding h abeas relief for egregious errors in an appropriate case.

33does not disclose a violation of any constit utional right.

. . . The second class includes constitution al violations that are not of sufficient import in a parti cular case to justify reversal even on direct appeal, when the

evidence is still fresh and a fair retrial c ould be promptly conducted. . . . A third category i ncludes errors that are important enough to require reversal on direct appeal but do not reveal the kind of fundamental unfairness to the accused that will support a collateral attack on a final judgment. . . . The fourth category

includes those errors that are so fundamenta l that they infect the validity of the underlying judgme nt itself, or the integrity of the process by which that j udgment

was obtained.

Id. at 543-44 (dissenting opinion) (citations and f ootnote omitted).

It is, of course, this fourth category that the Cou rt referenced eleven years later in Brecht as a potent ial exception to the harmless error standard. Justice S tevens has admitted that "[t]his category cannot be define d precisely," id. at 544, but his opinions in Rose an d Greer do provide some guidance as to which infractions are t o be considered `fundamentally' unfair. In Rose, Justice Stevens explained that the "error that falls in this catego ry is best illustrated by recalling the classic grounds for th e issuance of a writ of habeas corpus -- that the proceeding w as dominated by mob violence; that the prosecutor know ingly made use of perjured testimony; or that the convict ion was

based on a confession extorted from the defendant b y brutal methods." Id. (footnotes omitted). In his vi ew, "[e]rrors of this kind justify collateral relief no matter how long a judgment may have been final and even though they may not have been preserved properly in the origina l trial." Id. (footnotes omitted). Further, in Greer, Justice Stevens applied these principles to Doyle violations, writi ng that "there may be extraordinary cases in which the Doyl e error is so egregious, or is combined with other errors o r incidents of prosecutorial misconduct, that the int egrity of the process is called into question. In such an eve nt, habeas corpus relief should be afforded." 483 U.S. at 769 (concurring).

34Brecht itself sheds light on the Footnote Nine exce ption

as well. Brecht involved a petitioner convicted of first-degree murder and sentenced to life imprisonment. The peti tioner

took the stand at trial and admitted that he had fa tally wounded his brother-in-law, Roger Hartman, but he claimed that the killing was accidental. Over the o bjections of defense counsel, and in violation of Doyle , the State asked the petitioner on cross-examination and again on recross-examination "whether he had told anyone at an y time before trial that the shooting was an accident, to which petitioner replied `no.' " 507 U.S. at 625. The pro secutor then made three glaring references to the petitione r's pretrial silence during closing arguments, urging the jury to
" `remember that Mr. Brecht never volunteered until in this courtroom what happened in the Hartman residence,' " stating that " `[h]e sits back here and sees all of our evidence go in and then he comes out with this craz y story,' " and reminding the jury that the petitione r " `didn't say' " this was an accident, " `[n]o, he waited unt il he hears our story.' " Id. at 625 n.2 (quoting the record in the case). Nevertheless, the Supreme Court still applied a har mless error standard, so that the facts in Brecht did not involve "a deliberate and especially egregious error of the tr ial type, or one that is combined with a pattern of prosecutoria l

misconduct" as reflected in Footnote Nine. Id. at 6 38 n.9. As the Court wrote, "[w]e, of course, are not prese nted with

such a situation here." Id.30

With this in mind, we too conclude that we are not here presented with the type of egregious situation allu ded to in Footnote Nine. First, the error in this case was mu ch less

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30. We are aware of only two federal circuit court opinions discussing the Footnote Nine exception in detail, but neither of t hese cases is helpful

to our discussion. We addressed the Brecht exception i n Robinson v. Arvonio, 27 F.3d 877, 886 (3d Cir. 1994), but Robin son was later vacated on appeal to the Supreme Court and is no longer goo d law. See Robinson v. Arvonio, 513 U.S. 1186 (1995). In addition, the Ninth Circuit discussed Footnote Nine in Hardnett v. Marshall, 25 F.3d 875, 879-81 (9th Cir. 1994), but, in contrast to the instant ca se, Hardnett involved

an error that was ultimately found to be irrelevant to the jury's verdict. We will thus limit our analysis to Supreme Court prece dents discussing the Brecht exception.

35egregious than in Brecht where the Court did employ a

harmless error analysis. At Hassine's trial, object ions were immediately raised and sustained, Hassine never ans wered the improper questions, and the prosecutor's refere nces to Hassine's silence during closing arguments were ambiguous. See supra. Therefore, if the Supreme Cou rt

believed that Brecht was not "of course" a Footnote Nine case, we fail to see how Hassine's case could possi bly qualify under the Brecht exception.

Second, we do not believe that the prosecutor's act ions here were "deliberate and especially egregious" wit hin the meaning of Footnote Nine. As we discussed supra, th ere was some evidence that Hassine had opened the door to questions about his post-arrest silence by testifyi ng that he was "available" for questioning by the police. In f act, this is precisely what the Pennsylvania Superior Court foun d on direct appeal of Hassine's claim. See Hassine I, 49 0 A.2d at 451. Thus, while we now disagree with the Superior Court and find that the questions were inappropriate, we cannot say that the prosecutor's actions were so deliberat e and egregious as to warrant habeas relief that bypasses harmless error scrutiny.

Finally, we conclude that the Doyle violation did n ot "so infect the integrity of the proceeding," Brecht, 50 7 U.S. at 638 n.9, or "call[ ] into question" the integrity o f the trial process, Greer, 483 U.S. at 769 (Stevens, J., concu rring), so as to warrant the grant of habeas relief to Hassine . As we have discussed, the Doyle violation in this case co nsisted of three unanswered questions, occupying just one page in a transcript of more than 1500 pages of testimony, in addition to two ambiguous references to Hassine's s ilence during closing arguments. Moreover, the State calle d thirtyfour witnesses on its behalf and impeached Hassine' s testimony on several different grounds. Under these circumstances, we do not believe that Hassine's cas e can be classified as the "unusual," Brecht, 507 U.S. at 63 8 n.9, or "extraordinary," Greer, 483 U.S. at 769 (Stevens, J

., concurring), proceeding in which relief can be gran ted pursuant to Footnote Nine. The Doyle violation at H assine's trial was significant, but we remain confident that its impact on the entire case was not so profound as to infect the very integrity of Hassine's conviction.

36IV. CONCLUSION

For the foregoing reasons, the district court's Ord er dated October 30, 1997, will be affirmed.

37NYGAARD, Circuit Judge, Concurring.

I believe the majority reaches the correct result, agree with its reasoning, and, so I concur in its judgmen t. I write separately only to add my thoughts to Section III, D of its opinion, and express my indignation with the prosec uting attorney's misbehavior.

The concept of an accused's right to remain silent, to be free from prosecutorial comment about that silence, and to be free from any adverse consequences from acceptin g this constitutional protection, is so fundamental in our jurisprudence, and is so well known among practitio ners, that I cannot conceive of any alternative but that the prosecutor's use of Hassine's silence was both deli berate and calculated to invite the jury to draw an advers e inference from it. Moreover, I believe this deliber ate violation of Mr. Hassine's constitutional rights is egregious -- indeed, it is outrageous. The prosecutor not onl y questioned Hassine about his silence, but continued to do so even after objections to the questions were sust ained by the trial court. This arrogance towards the court's ruling and the accused's rights, is reprehensible.

Nonetheless, on this habeas corpus review, I cannot say that his behavior, although unprofessional, "so inf ected" the trial's integrity, that it requires us to grant Has sine relief. Moreover, even though the prosecutor again made ref erence to Hassine's silence in his closing argument, consi dering the entire record, I agree with the majority -- we cannot say that his action constituted a "pattern" of miscondu ct. The prosecutor's act was unfair, for which he deserves a stern rebuke. Hassine, nonetheless, received a fair trial

.

Hence, although the prosecutor's behavior came very close to crossing the line of harm, and came even c loser to that "unusual" case in which relief could be grante d regardless of harm, I agree with the majority that it did not.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

38