Hassine v. Zimmerman

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

11-9-1998

Hassine v. Zimmerman
Precedential or Non-Precedential:

Docket 97-1969

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Filed 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 Appellant
 C. 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, following his
1981 conviction on charges of first degree murder,
attempted murder, criminal conspiracy, and criminal
solicitation. Now, more than fifteen years later, we are faced
with the question of whether to vacate Hassine's conviction
by granting his petition for habeas relief brought pursuant
to 28 U.S.C. S 2254. Hassine contends that relief is
warranted because the state prosecutor sought to use his
post-arrest silence for impeachment purposes at trial in
violation of the due process principles established in Doyle
v. Ohio, 426 U.S. 610 (1976). The district court found that
a Doyle violation had occurred, but it concluded that any
constitutional error was harmless under the standard
announced in Brecht v. Abrahamson, 507 U.S. 619 (1993).
We agree that the prosecutor violated Doyle by seeking to
elicit testimony concerning Hassine's post-arrest silence.
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 William
Eric Decker, which culminated in the August 22, 1980,

2
murder 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, called Greg's
Quality Meat Market ("the Market"). The store was financed
by Hassine's family, overseen and supervised by Hassine
himself, and operated on a daily basis by Orlowski.
However, the Market soon experienced financial problems,
and, with Hassine's knowledge, Orlowski began selling
marijuana and methamphetamine from a back room in the
store.

In June 1980, Albert Kellet, a close friend of Orlowski,
purchased $150 of methamphetamine at the Market. Upon
returning home, Kellet discovered that the drugs were of
inferior quality and he became enraged. He called Orlowski
and invited him to his apartment under the false pretense
of wishing to buy more methamphetamine. When Orlowski
arrived, Kellet threatened him with a club, stole all 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 actions. The
State's witnesses testified that at this meeting, Hassine
announced that he wanted Kellet "wasted" and that if Lois
Kellet, Albert's wife, was present, she "was to go also,
because any witnesses had to go." As a result, Hassine,
Decker, and Orlowski made several attempts over the next
month to obtain a gun with which to kill Kellet, and they
investigated the possibility of paying two other individuals
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 Decker to
shoot Kellet and to kill him. Because it was daylight 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 Hassine that
"[t]onight's the night -- the cat's got to go. We'll use your
gun."

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

3
parents' 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 drove
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 first-
floor apartment watching television with his wife Lois, and
with James Puerale and George Sofield. Decker entered the
apartment, surveyed the room, and opened fire, killing
Puerale instantly and injuring Skip and Lois Kellet with
shots to the head.

The police arrested Decker the next day, and arrested
Hassine three months later, charging Hassine withfirst
degree murder, attempted murder, conspiracy, and
solicitation.

B. The Murder Trial

The State presented thirty-four witnesses at Hassine's
trial, including Decker, who had negotiated a plea bargain
with the District Attorney to avoid the death penalty.
Decker and the other witnesses testified as to the details of
the murder conspiracy and described Hassine's extensive
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 innocent
explanation for his role in the conspiracy. He testified that
he had obtained his father's gun and stored it in the
Market after Orlowski had asked him for protection from
Kellet. He then claimed that Decker entered the Market on
the day of the murder, and, without Hassine's knowledge,
took the gun and left the store "ranting and raving, saying
he was going to get Skip Kellet." Hassine thus maintained
that he never told Decker to kill Kellet, that he never 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 prosecutor
asked Hassine a series of questions on cross-examination
regarding Hassine's post-arrest silence. In particular, he
inquired three times as to why Hassine had not offered the
same exculpatory story to the authorities following his

4
arrest. Hassine's attorney objected each time, believing 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 preventing
Hassine from answering the prosecutor's questions. The
prosecutor also made two general references to Hassine'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 evidence,
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 Hassine's
motions for a new trial and arrest of judgment, the court
adopted the jury's recommendation and sentenced Hassine
to life imprisonment, in addition to several consecutive
prison terms extending from two to twenty years.

C. Review of the State Court Conviction

Hassine appealed his conviction to the Superior Court of
Pennsylvania, assigning fifteen reversible errors to the trial
court. See Commonwealth v. Hassine, 490 A.2d 438, 443-
44 (Pa. Super. Ct. 1985) ("Hassine I"). Among other things,
he argued that the state prosecutor had violated the due
process principles established in Doyle by interrogating 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,finding
that his list of alleged errors was "short on merit," id. at
444, and rejecting his claim of prosecutorial misconduct
based on Doyle. Relying on state precedent, the court noted
that testimony regarding post-arrest silence can be elicited
"to refute contrary statements volunteered by the defendant
to demonstrate his cooperation at the time of questioning,"
id. at 451 (quoting Commonwealth v. Bey, 439 A.2d 1175,
1177 (1982)), and concluded that "[w]e believe this occurred
here. The district attorney elicited testimony designed to
rebut [Hassine's] claim that he cooperated with the police,

5
not 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 Pennsylvania,
claiming again, inter alia, that the prosecution asked
improper questions at trial about his post-arrest silence.
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 filed a
petition for a writ of habeas corpus with the district court
on October 28, 1986. Among other things, Hassine argued
once again that the prosecutor had exploited his post-arrest
silence as an impeachment tactic in violation of due
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 June 15,
1988, the Magistrate Judge recommended that relief be
denied. After reviewing the record in detail, the Magistrate
Judge found strong evidence "that the jury may have
impermissibly been able to draw an inference between
petitioner's silence and his guilt, thus clearly infringing
upon petitioner's due process rights as established in
Doyle." Nevertheless, he concluded that any constitutional
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 novo
review of the Magistrate Judge's findings consistent with 28
U.S.C. S 636(b)(1)(C). One year later, on November 15,
1989, the district court issued a Memorandum and Order
agreeing with the Magistrate Judge's ruling that the jury
had been permitted "to draw an impermissible inference 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 decision on
Hassine's petition, because it believed that oral argument
was needed on the question of whether the trial error had
been harmless.

6
Oral argument was held on December 1, 1989, but the
court did not immediately issue a ruling, and no further
events transpired in the case for the next three and a half
years. On April 21, 1993, the Supreme Court announced its
decision in Brecht v. Abrahamson, 507 U.S. 619 (1993),
altering the standard for harmless error in habeas cases
involving constitutional trial flaws. Prior to Brecht, the
Court had held in Chapman v. California that habeas relief
should be denied in the event of constitutional trial 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 announced
a new test for harmless error in habeas cases, namely,
whether the error "had substantial and injurious effect 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, including
"the significance, if any" of the Supreme Court's decision in
Brecht. Following that call, the parties submitted letter
briefs to the district court regarding whether Hassine'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 May 4,
1995, the district court conducted yet another oral
argument concerning whether Brecht should be applied 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 years
from the date on which Hassine first filed his habeas
petition -- the district court reached a decision on the
merits of the harmless error claim. The court examined the
caselaw and the rationales supporting the rule in Brecht
and concluded that "[t]his court must apply the Brecht
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 conducting an
extensive review of the record and the evidence supporting

7
the jury's verdict, the court then held that the Doyle error
at Hassine's trial was harmless, because "the record,
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-arrest
silence, although a constitutional violation under Doyle, did
not have a substantial and injurious effect or influence on
the jury's guilty verdict" within the meaning of Brecht. Id. at
*10.

The district court issued a certificate of probable cause
allowing Hassine to file a timely appeal, and we now have
jurisdiction to hear the appeal pursuant to 28 U.S.C.
SS 1291 and 2253.1 Because the district court relied entirely
on the state court record and did not hold an evidentiary
hearing, our review is plenary. See Johnson v. Rosemeyer,
117 F.3d 104, 109 (3d Cir. 1997). Acting in the same
capacity as the district court, we will presume that the
factual findings of the state courts are correct if fairly
supported by the record, but we will exercise plenary 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 post-
arrest silence. 426 U.S. at 610. Doyle involved two
defendants who, upon taking the witness stand in their
own defense, claimed that a narcotics informant had
framed them for the crime. The prosecutor asked each
defendant on cross-examination whether he had told the
"framing" story to the police after his arrest. Defense
counsel objected strenuously, arguing that the prosecution
could not impeach the defendants on this basis because
_________________________________________________________________

1. This case is not subject to the terms of the Antiterrorism and
Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat.
1214 (1996), because Hassine filed his habeas petition well before the
April 24, 1996, date on which the AEDPA took effect.

8
the defendants were merely exercising their right to remain
silent after arrest. However, the objections were overruled
and the defendants were compelled to admit that they had
not provided an exculpatory story to the authorities
following their arrests and the reading of their Miranda
rights.

On appeal, the defendants argued that the prosecutor's
line of questioning violated the due process guarantees
inherent in the right to remain silent. The Supreme Court
agreed, reversing their convictions in light of Miranda's
implicit assurance that silence will have no adverse
consequences. The Court stated that "it would be
fundamentally unfair and a deprivation of due process to
allow the arrested person's silence to be used to impeach
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 arrest and
after receiving Miranda warnings, violate[s] the Due 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, post-
Miranda silence. The record shows that the prosecutor'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 Country
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 with the
knowledge of what was really involved in
regard to this gun, and you just kept it to

9
 yourself 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 came 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 that the
prosecutor was attempting to elicit the precise inferences
that the State is prohibited from exploiting under Doyle.
Further, the trial court did not provide, and defense
counsel did not request, any curative instructions for the
jury. In this regard, the instant case is distinguishable from
Greer v. Miller, 483 U.S. 756 (1987), where the Supreme
Court found no Doyle violation. In Greer, the sequence of
events "-- a single question, an immediate objection, and
two curative instructions -- clearly indicate[d] that 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 about the
poor conditions he had experienced in confinement, and
then, despite objections by the defense, asked three
questions that are clearly prohibited by Doyle, and then
made statements in his closing that could be understood to
refer to that same silence. Moreover, the trial court 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 the view
of the Pennsylvania Superior Court in Hassine I, 490 A.2d

10
at 451, that the prosecutor's questions were nonetheless
permissible because Hassine had "opened the door" in his
direct testimony to inquiries about his post-arrest silence.
Hassine had told the jury on direct examination that 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-arrest
silence, the prosecutor was merely challenging Hassine's
testimony as to his behavior following arrest by impeaching
Hassine's claim on direct examination that he was
"available" and willing to cooperate with the authorities.

The State's argument is based on an exception contained
in footnote eleven in Doyle, which provides that "post-arrest
silence could be used by the prosecution to contradict a
defendant who testifies to an exculpatory version of 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 Hassine's
post-arrest silence for impeachment. However, we find, as
the district court did, that Hassine's direct testimony was
far too innocuous and ambiguous to constitute an
exculpatory version that would justify the pointed cross-
examination in this case. The Doyle footnote applies when
a witness testifies on the stand to a version of events and
indicates that he previously told that version to law
enforcement. The government can then pursue its position
that the story was not previously told, and may bring out
on cross-examination the fact that the defendant was silent
following arrest. As the one case cited in the Doyle footnote
makes clear, "to be admissible, keeping silence must be
much more than ambiguous. It must appear to be an act
blatantly inconsistent with the defendant's trial testimony."
United States v. Fairchild, 505 F.2d 1378, 1382 (5th Cir.
1975). In this case, however, there is no contention that
Hassine described a version of events on the stand and

11
indicated that he had previously told that same story to the
police. Rather, the only testimony which harkens back to
Hassine's previous behavior deals with his declaration 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 actively in the
investigation, and never suggested that he had surrendered
his right to silence by speaking directly with the
authorities. The only relevance of the prosecutor's
questioning to Hassine's previous silence, therefore,
implicates his right to remain silent more than it
constitutes questioning probative of his truth or credibility.2

The Doyle footnote exception only permits the
prosecution to use post-arrest silence to impeach the
credibility of the defendant's version of what he did
following arrest; the government cannot use the silence to
impeach the exculpatory story itself or to draw inferences
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 silence 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, 468 (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 police after
arrest, the prosecutor asked incredulously, "[y]ou sat for
seven months in prison with the knowledge of what was
really involved in regard to the his gun, and you just kept
it to yourself because your attorney said to keep it to
yourself?" We believe that questions like this clearly invite
_________________________________________________________________

2. Hassine's appeal thus differs greatly from Fairchild, 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 responding 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 defendant's testimony "left
the clear implication that he had proffered his alibi to the police upon
surrender").

12
the jury -- in violation of Doyle -- to reject Hassine'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 prosecutor
violated Hassine's right to due process at trial by seeking to
draw impermissible inferences about Hassine's post-
Miranda 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 as
harmless. The Supreme Court has identified two types of
constitutional errors: structural and trial. See Arizona v.
Fulminante, 499 U.S. 279, 306-10 (1991). "A structural
error is a defect in the trial mechanism itself, affecting the
entire trial process, and is per se prejudicial." Yohn v. Love,
76 F.3d 508, 522 (3d Cir. 1996) (citations omitted). By
contrast, "trial error occurs during the presentation of the
case to the jury, and may be quantitatively assessed in the
context of all other evidence." Id. The Supreme Court has
written that "Doyle error fits squarely into the category of
constitutional violations which we have characterized as
trial error." Brecht, 507 U.S. at 629 (quotation omitted).
Therefore, we must assess whether the Doyle violation at
Hassine's trial constitutes harmless error in the context 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 habeas
corpus proceedings, as discussed above. For many years,
the standard in both direct and collateral appeals for
determining whether a constitutional trial error was
harmless was the test established in Chapman v. California,
which held that a conviction would be vacated unless 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. Abrahamson,
507 U.S. at 619, that harmless error in habeas cases
should be judged instead by the standard for

13
nonconstitutional errors set forth in Kotteakos v. United
States. Thus, under Brecht, habeas relief can now be
granted on collateral review only if the constitutional trial
error "had substantial and injurious effect or influence in
determining the jury's verdict." 507 U.S. at 623 (quoting
Kotteakos, 328 U.S. at 776).3

Ordinarily, this would present no problem on appeal,
because we would apply the Brecht standard to a petitioner
seeking habeas relief. In this case, though, Hassine argues
that he is entitled to the benefit of the older, more 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 threshold
issue: should a federal court apply the Brecht standard for
harmless error in a habeas case where the state courts
have never conducted a review of the error on direct 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 Brecht 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 at least
two district courts, have concluded that the "rule
announced in Brecht does not apply and that the Chapman
harmless error standard is the appropriate test in this
case." Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.
_________________________________________________________________

3. Brecht adopts a more deferential standard on collateral review for
cases involving constitutional trial errors. Nevertheless, the degree of
the
difference in practice remains to be seen as the new test is applied. As
Justice Stevens, whose concurrence provided the decisive fifth vote in
Brecht, noted, "[g]iven the critical importance of the faculty of judgment
in administering either standard, however, th[e] difference [in emphasis]
is less significant than it might seem . . . . In the end, the way we
phrase
the governing standard is far less important than the quality of the
judgment with which it is applied." 507 U.S. at 643 (Stevens, J.,
concurring).

14
1993); see also Starr v. Lockhart, 23 F.3d 1280, 1292 (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. 1997).
By contrast, the Fourth, Fifth, Seventh, Tenth, and
Eleventh circuits have all held that "Brecht, rather than
Chapman, enunciates the appropriate standard for
determining whether a constitutional error was harmless in
a federal habeas challenge to a state conviction or
sentence," regardless of the standard employed by the state
courts. Hogue v. Johnson, 131 F.3d 466, 499 (5th Cir.
1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1297, (1998);4
see also Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir.
1996), cert. denied, ___ U.S. #6D6D 6D#, 117 S. Ct. 765 (1997);
Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995);
Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert.
denied, 516 U.S. 1041 (1996); Horsley v. Alabama, 45 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 that
Hassine offers in contending that Chapman should apply.

First, the plain language of Brecht makes no distinction
_________________________________________________________________

4. A panel of the Fifth Circuit recently noted its disagreement with
Hogue, but concluded that "we may not ignore the [Hogue] decision, for
in this circuit one panel may not overrule the decision 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 thus remains good law
in the Fifth Circuit.

5. Two courts passed on the issue after finding that the trial error would
not have been harmless under either standard. See Lyons v. Johnson, 99
F.3d 499, 503 (2d Cir. 1996) ("[D]ue to the magnitude of the trial court's
error . . . we need not decide whether . . . Chapman or Brecht is the
appropriate standard to apply in this case."); Hanna v. Riveland, 87 F.3d
1034, 1038 n.2 (9th Cir. 1996) ("[W]e do not need to decide this issue
because, even under Brecht's less stringent standard of review, the error
cannot be deemed harmless.").

15
that requires us to employ Chapman on collateral review.
The issue in Brecht was "whether the Chapman harmless-
error standard applies in determining whether the
prosecution's use for impeachment purposes of petitioner's
post-Miranda silence, in violation of due process under
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 standard
applies in determining whether habeas relief must be
granted because of constitutional error of the trial type." Id.
at 638; see also id. at 623 ("[T]he standard for determining
whether habeas relief must be granted is whether the Doyle
error `had substantial and injurious effect or influence in
determining the jury's verdict.' ") (quoting Kotteakos, 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 error rule
when no such exception is even implicit in the Court's
opinion.

Second, in contrast to the views of some courts, we do
not believe that we should regard the facts in Brecht as
limiting the Court's holding to cases in which Chapman 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 courts
have viewed prior Chapman review as integral to Brecht's
result.6 We disagree.
_________________________________________________________________

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 review, the federal
habeas courts need only review those decisions under the Kotteakos
harmless error standard." Orndorff, 998 F.2d at 1430. Likewise, the
district court in Lyons stated that Brecht "was premised largely on
respect for the actual, conscientious review of harmlessness performed
by four prior courts -- both federal and state-- that applied Chapman."
912 F. Supp. at 689. These courts thus believe that Brecht intended to
alter the harmless error standard only for those habeas cases which, like
Brecht, involved a previous application of Chapman on direct appeal.

16
While the Court noted that "it scarcely seems logical to
require federal habeas courts to engage in the identical
approach to harmless-error review that Chapman requires
state courts to engage in on direct review," 507 U.S. at 636,
its holding was based primarily on a finding -- apart 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, that would
be derived from its application on collateral review." Id.

In Brecht, the Court identified four considerations in
justifying the application of a more relaxed harmless error
standard for habeas petitions, including the States'
interests in the finality of convictions, comity, federalism,
and the recognition that "liberal allowance of the writ
degrades the prominence of the trial itself." Id. at 635
(quoting Engle v. Isaac, 456 U.S. 107, 127 (1982)). The
Court then reasoned comprehensively that:

[o]verturning final and presumptively correct
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 contributed to the
verdict, is at odds with the historic meaning of habeas
corpus -- to afford relief to those whom society has
grievously wronged. Retrying defendants whose
convictions are set aside also imposes significant social
costs, including the expenditure of additional time and
resources for all the parties involved, the erosion of
memory and dispersion of witnesses that accompany
the passage of time and make obtaining convictions on
retrial more difficult, and the frustration of society's
interest in the prompt administration of justice.

507 U.S. at 637 (citations and quotations omitted). This
analysis led the Court to conclude that "[t]he imbalance of
the costs and benefits of applying the Chapman harmless-
error standard on collateral review counsels in favor of
applying a less onerous standard on habeas review of
constitutional error." Id. at 637; see also id. at 637-38 ("The
Kotteakos standard is . . . better tailored to the nature and

17
purpose of collateral review and more likely to promote 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 Kotteakos
standard should be applied consistently in collateral
proceedings.

Third, contrary to Hassine's argument, we believe that
the policy interests identified in Brecht are nonetheless
implicated in cases where the state courts have not
evaluated a petitioner's claim under Chapman. Hassine
urges that we follow Lyons, in which a district court stated
that Brecht should be used only when federal courts would
be repeating Chapman analyses performed by the state
courts, because it is only in these situations that the
federal courts demonstrate a "lack of respect for state
courts' ability as federal constitutional interpreters, and
hence . . . violate obligations of comity and principles of
federalism." 912 F. Supp. at 689; see also Barber, 145 F.3d
at 238 (Dennis, J., concurring) (stating that the federal
courts cannot defer "to the systemic values offinality,
federalism, and comity . . . unless there has in fact been a
good-faith State effort to protect constitutional rights 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, on the
fact that they have rejected a defendant's direct appeal.
Indeed, a federal habeas court which overturns a state
conviction on collateral review still upsets a State's interest
in finality, and still raises federalism, comity, and trial
process concerns, regardless of whether the state courts
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 Brecht, it
is anomalous to say that a Chapman standard should apply
in any habeas case based on concerns such as federalism,
comity, or finality. Brecht stands for the proposition that
these concerns are to be advanced by employment of the

18
Brecht standard itself. Thus, not to apply Brecht, and to
apply instead a less deferential standard, is to nullify not
merely the policies that the Court has advanced, but the
very import of the Brecht decision. In fact, the Supreme
Court has repeatedly emphasized the importance of
deference to State "sovereignty over criminal matters,"
Brecht, 507 U.S. at 637, and to the finality of criminal
judgments, outside the context of Chapman. In Teague v.
Lane, for example, the Court restricted the ability of habeas
petitioners to establish new constitutional rules on
collateral review, in part because the "[a]pplication of
constitutional rules not in existence at the time a
conviction became final seriously undermines the principle
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 Engle,
456 U.S. at 126). "Among other things," the Court wrote, "it
disturbs the State's significant interest in repose for
concluded litigation, denies society the right to punish
some admitted offenders, and intrudes on state sovereignty
to a degree matched by few exercises of federal judicial
authority." Wright, 505 U.S. at 293 (quotations omitted).

Therefore, while the absence of a state court Chapman
review may make the considerations identified in Brecht
less compelling, it certainly does not eliminate them. As our
sister circuits have concluded, Brecht is still the general
rule to apply in habeas cases, even in situations where the
state courts never employ Chapman, because "principles of
federalism, comity, and finality apply regardless of the
harmless error standard used by the state court." Sherman,
89 F.3d at 1141; see also Tyson, 50 F.3d at 446 ("The
reasons the Court gave in Brecht for adopting a less
stringent rule are independent of the rule applied in the
state appellate process.").7
_________________________________________________________________

7. We do not mean to imply that habeas relief should be limited in the
name of federalism and comity alone. We note merely that Supreme
Court jurisprudence requires us to consider the systemic costs of
applying certain standards on collateral review, and that, in this case,
those costs are substantial even if the state courts never perform a
Chapman analysis on direct appeal.

19
Finally, we note that we are wary of the practical impact
of applying Chapman to every case where a prior Chapman
review has not occurred. As the Seventh Circuit recognized
in Tyson, "ordinarily . . . the state court will not have found
any error and therefore will have had no occasion to apply
any standard of harmless error. Brecht itself was a fluke in
this regard; the state courts had considered the issue of
harmless error and applied the Chapman standard." 50
F.3d at 446.8 Consequently, any rule requiring Chapman to
be used when the state courts fail to address harmless
error would render Brecht inapplicable to the majority 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 have
sanctioned such a result.

Cases like Brecht and Teague express the Court's belief
that collateral review entails heightened deference and
respect to the state courts, and we must follow governing
precedent when it applies, as it does here. Accordingly, we
hold that a federal habeas court performing a harmless
error inquiry on collateral review must employ the standard
for harmless error articulated in Brecht, even if the state
courts have never reviewed the error on direct appeal under
Chapman.

B. Whether Brecht Should be Applied to Hassine

Even if Brecht applies generally to collateral proceedings,
Hassine contends that we should still review his claims
under Chapman due to the unique and unusual facts of 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 still
the law for harmless error on collateral review, and because
_________________________________________________________________

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 analysis at all, if they
find that the petitioner has defaulted procedurally on his claim, or if
there is no opportunity to address the error because it is discovered only
after the defendant has already exhausted his state appeals.

20
(2) the district court proceedings were marked by such
extensive delay as to violate his right to due process.9 We
are not persuaded by either contention.

First, the fact that Hassine made the deliberate choice to
forego seeking relief in the Supreme Court is irrelevant.
Hassine could not, of course, have anticipated an
intervening change in the law, but that alone is insufficient
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, including any
altered standard for harmless error, even if the delay 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 fundamental
right to due process. We reviewed the claim of a petitioner
whose state action for post-conviction relief had been
pending for nearly four years, and we stated that"delays in
post-verdict process may violate the Due Process Clause.
. . . The due process clause protects against more than
delay in trial and sentencing. It guarantees as well the right
to attack a conviction." Id.

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

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 extraordinary delay in
processing Hassine's petition, we wish to make clear that we are not
holding that the delay constituted a violation of due 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.

21
due process issue in a subsequent appeal. See Heiser v.
Ryan, 15 F.3d 299 (3d Cir. 1994) ("Heiser II"). In Heiser II,
we still recognized that excessive delay in state collateral
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 307. In
other cases, we have indicated that petitioners experiencing
delay can seek a writ of mandamus to compel the district
court to reach a decision on the habeas claim. For example,
in Madden v. Myers, we addressed a petitioner's argument
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 district
court. 102 F.3d 74, 76 (3d Cir. 1996). We ultimately denied
the request, but, in our only published opinion on this
issue, we noted that the petitioner's claims of delay 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 become 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); McClellan v.
Young, 421 F.2d 690, 691 (6th Cir. 1970) (granting a writ
of mandamus where the district court had delayed its
habeas ruling pending a decision by the Supreme Court).12

However, while we have shown a willingness to issue
_________________________________________________________________

11. In fact, a review of our unpublished opinions reveals 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 extraordinary delay, "must
have no other adequate means to obtain the desired relief, and must
show that the right to issuance is clear and indisputable." Madden, 102
F.3d at 79.

22
writs of mandamus and to entertain lawsuits for damages,
we have never granted habeas relief because of a delay in
the processing of a petition, and we decline to do so here.
The federal courts are authorized to provide collateral relief
where a petitioner is in state custody or under a federal
sentence imposed in violation of the Constitution or the
laws or treaties of the United States. 28 U.S.C.SS 2254,
2255. Thus, the federal role in reviewing an application for
habeas corpus is limited to evaluating what occurred in the
state or federal proceedings that actually led to the
petitioner's conviction; what occurred in the petitioner's
collateral proceeding does not enter into the habeas
calculation. We have often noted the general proposition
that habeas proceedings are "hybrid actions"; they are
"independent civil dispositions of completed criminal
proceedings." See, e.g., Santana v. United States, 98 F.3d
752, 754 (3d Cir. 1996). Federal habeas power is"limited
. . . to a determination of whether there has been an
improper detention by virtue of the state court judgment."
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 not make the
continued imprisonment of the defendant unlawful, and
hence, does not warrant federal habeas corpus relief."
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996),
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 in state
collateral proceedings because such an error has absolutely
nothing to do with the reason for a defendant's
confinement"), cert. denied, ___ U.S. ___, 118 S. Ct. 380
(1997).13

Therefore, to the extent that a petitioner wishes to claim
that delay in the processing of a collateral petition 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
_________________________________________________________________

13. Providing relief to a petitioner in state custody because of a delay
in
the federal courts would also greatly undermine principles of federalism
and comity by disturbing a state court judgment due to a federal court
error.

23
proceeding itself. In the case at bar, we thus conclude that
Brecht still applies in evaluating whether the Doyle 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 petition, we
proceed next to an examination of whether the district
court properly concluded that the prosecution's Doyle
violation was harmless.14 Under Brecht and its progeny, a
constitutional trial error is not harmless if the court is in
"grave doubt" as to whether the error had a substantial and
injurious effect or influence in determining the jury's
verdict. O'Neal v. McAninch, 513 U.S. 432, 436 (1995).
"Grave doubt" exists when, "in the judge's mind, the matter
is so evenly balanced that he feels himself in virtual
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 from the
phase of the trial affected by the error. The correct 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 (citations
omitted).

Hassine contends that the Doyle violation could not have
been harmless because it went to the heart of his defense.
He maintains that because he was the only witness
testifying as to his version of the events, and because the
Doyle error undermined his credibility, it necessarily had a
"substantial and injurious effect or influence in determining
the jury's verdict." Brecht, 507 U.S. at 623 (quoting
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 the facts
rather than Hassine's was influenced by the prosecutor's
_________________________________________________________________

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

24
Doyle violation. If the jury disbelieved Hassine and
convicted him because of the Doyle violation, the error was
not harmless and we will grant the petition. The crucial
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 the
evidence against Hassine is important, we must also
examine the phases of the trial affected by the error, and
determine whether the error had a substantial influence on
the verdict despite sufficient evidence to support the result
apart from the error. See id. (citing Kotteakos, 328 U.S. at
765). In so doing, we must of necessity weigh the impact of
evidence on the jury and cannot help but make a judgment
as to how the jury would reasonably perceive Hasssine's
version of events with and without the Doyle violation.

At the outset, we note our agreement with the district
court's finding that the evidence, as mounted through a
parade of Commonwealth witnesses, was substantial
indeed. The witnesses testifying as to Hassine's planning of,
and intent to commit, the crime were numerous, and their
stories consistent.15 A number of witnesses testified to an
initial meeting in which Hassine called for Kellet's
execution. (N.T. 34, 111-12, 743-44, 756-57, 810, 822).16
Several witnesses also recalled that Hassine had actively
searched for a weapon to carry out his plan: at the initial
meeting, he demanded that the other employees try to
procure a weapon (N.T. 36, 744, 774); he had discussed
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
_________________________________________________________________

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-day owner of the
Market; 3) Ron Wharton and Billy Hayes, employees at the Market; 4)
Valerie Lynch, Decker's girlfriend; 5) Ron Tuite and 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).

25
Kellet (N.T. 747, 760); and he visited his tenant Theodore
Camera and asked Camera to find him a gun. (N.T. 485-86,
487-88, 490).

Hassine settled on a weapon for the shootings: a stolen
.25 caliber automatic handgun. (N.T. 933). Both Decker
and Wharton testified that Hassine gave Decker the.25
while the three were in the Market van. (N.T. 53, 749).17
Hassine and Decker also went to a gun store where Hassine
bought a box of ammunition and signed for the purchase.
(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 declined
because it was daytime, and a witness was present. (N.T.
61-62). Hassine and Decker repeatedly test fired the gun
into the back wall of the store, but the .25 was
malfunctioning and had to be put aside, despite their
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 Kellet.
After bailing Tuite out of jail on a gun charge involving the
.357, Hassine contacted him about a "deal" involving Kellet,
and the four met to discuss a contract killing. (N.T. 557,
560, 560-61, 562, 627, 630, 753-55).19 Tuite and Schwab'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 Kellet, as
_________________________________________________________________

17. Decker testified that Hassine handed him the gun 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, 800-01).
19. Both Tuite and Schwab testified that Hassine appeared upset and
angered by the challenge Kellet posed to his authority. 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 wanted to continue to
consider the possibility of killing Kellet for money: "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).

26
agreed, however, Tuite and Schwab decided to warn Kellet
that Hassine and Orlowski wanted to kill him and kept 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 testified 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). Hassine
agreed and said he would come back to pick Decker up
with his car. Id. Decker further testified that Hassine then
drove him to Trenton and retrieved the .380 Llama
handgun used in the shootings from his parents' house;
gave him directions to Kellet's house; told him that he
would wait for him and drive him away after the shootings;
and gave him a Yankees batting helmet to disguise himself
during the shootings. (N.T. 83-85, 87-88).

Hassine then went to Orlowski's house, where Hassine
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 time 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, 1224).

After the murder, when Hassine and Orlowski returned
from their attempts to find Decker, Hassine told Orlowski
that they still had to find Decker, because he was afraid
Decker would be arrested. (N.T. 1227-28). The following
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 they
_________________________________________________________________

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).

27
realized Decker had been arrested, Hassine told Decker's
girlfriend, Valerie Lynch, to get rid of the gun. (N.T. 761-63,
1043-44, 1046-47). As word spread that the case against
Hassine was building, Tuite and Schwab decided to try to
intimidate Hassine into giving them $10,000 to kill
Commonwealth witnesses, and Hassine considered their
demands but did not ask them to follow through on the plan.23
(N.T. 568, 572, 577-78, 631-32).

Not only did the Commonwealth's case present evidence
of Hassine's guilt but also evidence of both a coverup and
instances of lying that detracted from Hassine's credibility.
On the night of the shootings, Hassine told his co-
defendant Orlowski to keep his "mouth shut" if the police
questioned him. (N.T. 1228). Hassine's attempts to
influence others continued as the investigation intensified.
After Decker was arrested for the shootings, Hassine tried
to make Orlowski sign a statement holding him responsible
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, Hassine
queried Thompson about what Thompson had told the
police during questioning, and in the course of that
conversation the two agreed, ostensibly, that they would
keep each other out of the case.24 (N.T. 892-94, 901).
_________________________________________________________________

23. Schwab testified as follows:

He was all frazzled; he was confused -- "I can'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, you were with
somebody else that night, right?

28
Hassine had made promises to Decker as a part of his
agreement to kill Kellet -- an apartment, money, and a
future on "easy street" -- and he continued the practice of
offering money or services for cooperation from others after
the shootings had taken place. (N.T. 63, 111, 752-53, 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 anything
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 house
and the surrounding property, and Thompson could keep
the house while Hassine developed the lot. (N.T. 896-97,
897-900). In his own testimony, Hassine admitted that 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 presented by
the prosecution, we would have little difficultyfinding that
the Doyle violation had substantially influenced the jury if,
apart from the violation, the phase of the trial most directly
impacted, namely, Hassine's testimony, presented a strong
counter to the state's evidence. But that is not the case.
Hassine's story was undermined not only by evidence of his
_________________________________________________________________

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. Decker was cross
examined on his frequent use of methamphetamine, prior record,
shifting stories, and his cooperation with the Commonwealth. (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 Commonwealth's witnesses.

29
disregard for the truth, but by his own testimony in which
he set forth strained and unrealistic explanations for his
conduct and portrayed himself as a mild mannered store
manager and law student -- a portrayal strikingly at odds
with other evidence depicting his behavior as controlling,
crude, and vulgar. In the course of his testimony, Hassine
portrayed himself as a diligent law student who spent the
bulk of his summer studying for the New Jersey and New
York bar exams, which he did not pass. (N.T. 1436-38,
1450-52). Hassine also presented himself as a sophisticated
individual versed in business practices who was concerned
about the management of the market. Hassine testified that
he made Orlowski run the store efficiently, and that he had
threatened to close the store if Orlowski did not run it in a
cost-effective manner. (N.T. 1414-1422, 1492-93). He also
testified that he was aware of the drug dealing at the store
after Kellet had beaten and stolen money from Orlowski,
but that he never participated in or profited from the drug
dealing. (N.T. 1424, 1510).26 He testified that when Wharton
took $40 from the register to front a drug deal, he punched
him, but did so because he wanted nothing to do with
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 Kellet
killed or "wasted," claiming instead that he had only
wanted Kellet to be put in jail. (N.T. 1428-29, 1432-34,
1496, 1497-98, 1500, 1553).27 Hassine also testified 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, rebuffed Tuite
and Schwab's offer to kill Kellet for him by indicating that
_________________________________________________________________

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

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

30
the 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 that 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 bought
bullets and signed the register at the gun store because
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 Decker
wanted to demonstrate problems with the gun and he just
got "carried away" in the process. (N.T. 1430-31, 1436,
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 gun back
and to prevent a crime from occurring. (N.T. 1466-68,
1526-29, 1521-32).

Hassine's version of events was further undercut by
evidence that he was not the mild-mannered person he
portrayed himself to be. There was testimony as to his
threatening and controlling Orlowski, his need to be a boss
of others and his desire to protect his turf and his
authority, even if doing so entailed resort to violence. (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 that
Hassine had violent tendencies, through incidents such as
his pulling Orlowski's finger out of its socket during 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 the
prosecutor's closing argument. (N.T. 1543-1544, E.H. 223,
259-60). Based on our assessment of the trial evidence, we
conclude that the questions posed in the midst of Hassine's

31
testimony did not have a substantial or injurious effect on
the jury's verdict. Nor did the two ambiguous references
made to a general pattern of silence result in an
overemphasis on this silence that destroyed the jury's
ability to look at the evidence in the case, as Hassine
contends. Rather, these statements were couched within a
general framework of asking the jury to consider the
credibility of the witnesses as a whole, and as such, the
closing provided the jury with ample latitude to evaluate
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 credibility
before the jury and the inferences drawn by that jury, 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 story that
was, on its own, not likely to be viewed as credible. Given
the overwhelming evidence of Hassine's guilt, and his lack
of credibility apart from the Doyle violation, we conclude
that the constitutional error at Hassine's trial was
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." Brecht, 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 still entitled
to relief under an exception to the harmless error rule
noted in Brecht. In footnote nine of the Brecht opinion, the
Supreme Court stated:

Our holding does not foreclose the possibility that in
an unusual case, a deliberate and especially egregious
error of the trial type, or one that is combined with a
pattern of prosecutorial misconduct, might so infect
the integrity of the proceeding as to warrant the grant
of habeas relief, even if it did not substantially
influence the jury's verdict. Cf. Greer v. Miller, 483 U.S.

32
 756, 769, 107 S. Ct. 3102, 3110, 97 L. Ed. 2d 618
(1987) (Stevens, J., concurring in judgment).

507 U.S. at 638 n.9. Hassine contends that this casefits
squarely within the Footnote Nine exception, because the
state prosecutor committed a "deliberate and especially
egregious error" at trial. He argues that "it was nothing
other than deliberate for the very experienced prosecutor to
persist in pointedly cross-examining Hassine about his
post-arrest silence," and maintains that it was "anything
short of deliberate" and egregious when the prosector
commented on Hassine's post-arrest silence during closing
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 level needed
to warrant habeas relief.29

As the citation in Footnote Nine acknowledges, the
exception to Brecht's harmless error standard has its roots
in the views of Justice Stevens, who has written on several
occasions that habeas petitions should be granted where
trial errors are truly extraordinary, even if they are found to
constitute harmless error. Brecht itself cites to Justice
Stevens' concurrence in Greer v. Miller, 483 U.S. at 767,
which, in turn, refers to the Justice Stevens dissent in Rose
v. Lundy, 455 U.S. 509, 538 (1982). In Rose, Justice
Stevens argued that there are at least four types of
constitutional error:

The one most frequently encountered is a claim that
attaches a constitutional label to a set of facts that
_________________________________________________________________

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

29. It is worth noting that Brecht does not truly establish an exception
for "deliberate and especially egregious errors;" it merely "does not
foreclose the possibility" that such an exception could exist. 507 U.S.
638 n.9. Nevertheless, for purposes of this discussion, we will assume
arguendo that Footnote Nine does support awarding habeas relief for
egregious errors in an appropriate case.

33
 does not disclose a violation of any constitutional right.
. . . The second class includes constitutional violations
that are not of sufficient import in a particular case to
justify reversal even on direct appeal, when the
evidence is still fresh and a fair retrial could be
promptly conducted. . . . A third category includes
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 fundamental that they
infect the validity of the underlying judgment itself, or
the integrity of the process by which that judgment
was obtained.

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

It is, of course, this fourth category that the Court
referenced eleven years later in Brecht as a potential
exception to the harmless error standard. Justice Stevens
has admitted that "[t]his category cannot be defined
precisely," id. at 544, but his opinions in Rose and Greer do
provide some guidance as to which infractions are to be
considered `fundamentally' unfair. In Rose, Justice Stevens
explained that the "error that falls in this category is best
illustrated by recalling the classic grounds for the issuance
of a writ of habeas corpus -- that the proceeding was
dominated by mob violence; that the prosecutor knowingly
made use of perjured testimony; or that the conviction was
based on a confession extorted from the defendant by
brutal methods." Id. (footnotes omitted). In his view,
"[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 original trial."
Id. (footnotes omitted). Further, in Greer, Justice Stevens
applied these principles to Doyle violations, writing that
"there may be extraordinary cases in which the Doyle error
is so egregious, or is combined with other errors or
incidents of prosecutorial misconduct, that the integrity of
the process is called into question. In such an event,
habeas corpus relief should be afforded." 483 U.S. at 769
(concurring).

34
Brecht itself sheds light on the Footnote Nine exception
as well. Brecht involved a petitioner convicted of first-degree
murder and sentenced to life imprisonment. The petitioner
took the stand at trial and admitted that he had fatally
wounded his brother-in-law, Roger Hartman, but he
claimed that the killing was accidental. Over the objections
of defense counsel, and in violation of Doyle , the State
asked the petitioner on cross-examination and again on re-
cross-examination "whether he had told anyone at any time
before trial that the shooting was an accident, to which
petitioner replied `no.' " 507 U.S. at 625. The prosecutor
then made three glaring references to the petitioner's pre-
trial 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 crazy
story,' " and reminding the jury that the petitioner " `didn't
say' " this was an accident, " `[n]o, he waited until he hears
our story.' " Id. at 625 n.2 (quoting the record in the case).
Nevertheless, the Supreme Court still applied a harmless
error standard, so that the facts in Brecht did not involve "a
deliberate and especially egregious error of the trial type, or
one that is combined with a pattern of prosecutorial
misconduct" as reflected in Footnote Nine. Id. at 638 n.9.
As the Court wrote, "[w]e, of course, are not presented 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 alluded to in
Footnote Nine. First, the error in this case was much less
_________________________________________________________________

30. We are aware of only two federal circuit court opinions discussing the
Footnote Nine exception in detail, but neither of these cases is helpful
to
our discussion. We addressed the Brecht exception in Robinson v.
Arvonio, 27 F.3d 877, 886 (3d Cir. 1994), but Robinson was later vacated
on appeal to the Supreme Court and is no longer good 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 case, 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 precedents discussing the
Brecht exception.

35
egregious than in Brecht where the Court did employ a
harmless error analysis. At Hassine's trial, objections were
immediately raised and sustained, Hassine never answered
the improper questions, and the prosecutor's references to
Hassine's silence during closing arguments were
ambiguous. See supra. Therefore, if the Supreme Court
believed that Brecht was not "of course" a Footnote Nine
case, we fail to see how Hassine's case could possibly
qualify under the Brecht exception.

Second, we do not believe that the prosecutor's actions
here were "deliberate and especially egregious" within the
meaning of Footnote Nine. As we discussed supra, there
was some evidence that Hassine had opened the door to
questions about his post-arrest silence by testifying that he
was "available" for questioning by the police. In fact, this is
precisely what the Pennsylvania Superior Court found on
direct appeal of Hassine's claim. See Hassine I, 490 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 deliberate and
egregious as to warrant habeas relief that bypasses
harmless error scrutiny.

Finally, we conclude that the Doyle violation did not "so
infect the integrity of the proceeding," Brecht, 507 U.S. at
638 n.9, or "call[ ] into question" the integrity of the trial
process, Greer, 483 U.S. at 769 (Stevens, J., concurring), so
as to warrant the grant of habeas relief to Hassine. As we
have discussed, the Doyle violation in this case consisted 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 silence
during closing arguments. Moreover, the State called thirty-
four witnesses on its behalf and impeached Hassine's
testimony on several different grounds. Under these
circumstances, we do not believe that Hassine's case can be
classified as the "unusual," Brecht, 507 U.S. at 638 n.9, or
"extraordinary," Greer, 483 U.S. at 769 (Stevens, J.,
concurring), proceeding in which relief can be granted
pursuant to Footnote Nine. The Doyle violation at Hassine'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.

36
IV. CONCLUSION

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

37
NYGAARD, Circuit Judge, Concurring.

I believe the majority reaches the correct result, agree
with its reasoning, and, so I concur in its judgment. I write
separately only to add my thoughts to Section III, D of its
opinion, and express my indignation with the prosecuting
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 accepting this
constitutional protection, is so fundamental in our
jurisprudence, and is so well known among practitioners,
that I cannot conceive of any alternative but that the
prosecutor's use of Hassine's silence was both deliberate
and calculated to invite the jury to draw an adverse
inference from it. Moreover, I believe this deliberate
violation of Mr. Hassine's constitutional rights is egregious
-- indeed, it is outrageous. The prosecutor not only
questioned Hassine about his silence, but continued to do
so even after objections to the questions were sustained 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 infected" the
trial's integrity, that it requires us to grant Hassine relief.
Moreover, even though the prosecutor again made reference
to Hassine's silence in his closing argument, considering
the entire record, I agree with the majority -- we cannot say
that his action constituted a "pattern" of misconduct. 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 closer to
that "unusual" case in which relief could be granted
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