Coss v. Dist Atty Lackawanna

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

6-28-2000

Coss v. Dist Atty Lackawanna
Precedential or Non-Precedential:

Docket 98-7416

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Filed February 29, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7416

EDWARD R. COSS, JR.,
Appellant

v.

LACKAWANNA COUNTY DISTRICT ATTORNEY;
THE ATTORNEY GENERAL OF THE COMMONWEALTH
OF PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 94-cv-01481)
District Judge: Honorable Thomas I. Vanaskie

Argued March 1, 1999

Before: STAPLETON, RENDELL and ALDISERT, Circuit Judges

Re-Argued: Monday, November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
McKEE, RENDELL, BARRY, ALDISERT and STAPLETON,
Circuit Judges.

(Filed: February 29, 2000)
 Daniel I. Siegel, Esq. (argued)
Assistant Federal Public Defender
Middle District of Pennsylvania
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

ATTORNEY FOR APPELLANT

William P. O' Malley (argued)
Assistant District Attorney
Lackawanna County Courthouse
200 N. Washington Avenue
Scranton, PA 18503

ATTORNEY FOR APPELLEES

D. Michael Fisher
Attorney General

William H Ryan, Jr.
Executive Deputy Attorney General
Director, Criminal Law Division

Robert A. Graci
Assistant Executive Deputy Attorney
General
Law and Appeals
Criminal Division

Ronald T. Williamson
Senior Deputy Attorney General
Appeals and Legal Services Section
Criminal Law Division

ATTORNEYS FOR AMICUS
CURIAE, THE ATTORNEY
GENERAL OF PENNSYLVANIA

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Edward Coss appeals from the denial of his petition for a
writ of habeas corpus filed pursuant to 28 U.S.C.S 2254.
He is not challenging the merits of the state conviction for

2
which he is presently incarcerated. Instead, he contends
that because a former conviction for which he is no longer
incarcerated or under any parole restraint was tainted by a
constitutional infirmity, and that conviction was improperly
considered when he was sentenced for his second offense,
his current term of incarceration violates his constitutional
rights.

We must first decide whether the conviction of hisfirst
offense was considered by the sentencing judge in the
matter for which he is presently incarcerated, thereby
vesting subject matter jurisdiction in the District Court for
his present petition. If we find such jurisdiction we must
then examine his first conviction to determine whether he
was denied his Sixth Amendment right to competent
counsel. If we agree with this contention then we must
decide what remedy is available to him.

I.

The melancholy chronicle of events started with a simple
assault and battery that took place on June 25, 1986, in
the small community of Dickson City in Lackawanna
County, Pennsylvania, when the local police were called to
a high school graduation party at the home of Carol Ann
Frank, the sister of the then seventeen-year-old Appellant,
Edward Coss. At the District Court hearing, testimony was
presented that Appellant attended the party along with his
brothers, Jimmy and Bobby, Appellant's girlfriend, Sherry
Kulick, Carol Ann's roommate, Lisa Frieto, and Lisa's
brother, George Frieto. Most of the guests at the party
consumed alcohol.1 It seems that Carol Ann's roommate,
Lisa Frieto, got into a hair pulling contest with Sherry
Kulick, and thereafter the revelers, all of whom had been
drinking, apparently picked sides and a grand donnybrook
was had by all until Carol Ann, the hostess, threw everyone
out of her house.

Undeterred by the great outdoors, the donnybrookers
continued their carousing outside until the landlord and
_________________________________________________________________

1. Although at his trial Appellant's story differed from the facts we
recount here, the District Court clearly credited this version of events.

3
the neighbors called the police. When the cops arrived with
their usual greeting, "Break it up," there apparently was a
slight problem in attitude adjustment, and the cops say
that Appellant threw a couple of punches at one of them,
landing himself in the local lockup. Totally dissatisfied with
the accommodations, Appellant proceeded to voice his
complaint by destroying a radiator, a sink, a toilet and a
light fixture on the ceiling in his cell. For this, he was
convicted of simple assault and institutional vandalism and
sentenced to six months to a year on each offense.
Appellant did his time and was released to society on
parole.

Appellant met with his assigned attorney, Rose Ann
McGowan, on two occasions before his trial. The District
Court made the finding of fact that Appellant gave
McGowan the names and addresses of several potential
witnesses during their first meeting.2 Counsel gave
Appellant no notice of the trial date but contacted him
approximately one hour before the trial was to begin, at
which point Appellant drove directly to the courthouse,
stopping only to pick up his brother Jimmy at school.

Appellant's trial began on October 30, 1986 and lasted
two days. At the trial, the officers who arrested Appellant,
Officers Adamitis and Wrobel, testified that when they
arrived at the scene, individuals began scattering and that
_________________________________________________________________

2. Appellant testified at the evidentiary hearing that in the first
meeting,
he and McGowan discussed "the whole entire story, how it happened,
[and] who was involved." His second andfinal meeting with McGowan
prior to his trial occurred after a severance motion, requesting that the
charges in connection with the simple assault be severed from those filed
for the damage to the juvenile detention center, wasfiled in September
1986. He alleges that he and McGowan also discussed the names of
possible witnesses at this meeting. McGowan did not testify what
occurred at these meetings. She did testify at the evidentiary hearing
that Appellant did not give her the names of any witnesses he wanted
her to subpoena, but then admitted that she did not specifically
remember Appellant's case and was instead testifying based on her
general practice as a public defender.

The court also noted that even if Appellant did not provide the names
to McGowan at this time, a cursory review of the police reports would
have identified the names and addresses of some of these witnesses.

4
they grabbed Appellant as he was running to his car. They
testified that Appellant was screaming vulgarities and
smelled of alcohol. They testified that, after being grabbed,
Appellant began pushing Officer Wrobel and was then
arrested. They also testified that as Officer Adamitis
attempted to grab Appellant's brother Bobby, Appellant
punched Officer Adamitis in the face. This punch is the
basis for Appellant's simple assault conviction. Finally,
Officer Wrobel testified that an individual named George
also hindered their attempts to arrest Bobby.

The only witnesses to testify on Appellant's behalf were
Appellant and Jimmy.3 Their accounts of the incident on
June 25, 1986 were completely different from the testimony
adduced some years later at the District Court hearing.
They denied (1) that there was a party at Carol Ann's house
that night and (2) that Appellant had been drinking. They
testified (3) that on the night in question, Jimmy and
Appellant were in their sister's driveway, along with their
brother Bobby, and had been there no more than fifteen
minutes when two police officers arrived and began to
assault Bobby and Appellant, (4) that Appellant did not
curse or punch anyone and (5) that he did not know who
the officer was referring to when he stated that an
individual named George was at the scene. Jimmy
corroborated this story, stating that there was no party at
Carol Ann's, that they were only at Carol Ann's house to
give her a camera, that he had not been drinking and that
Appellant did not hit a police officer.

The charges ultimately presented to the jury were
institutional vandalism and criminal mischief, simple
assault, resisting arrest and disorderly conduct. The jury
convicted Appellant of institutional vandalism, criminal
mischief and simple assault.4 Appellant was sentenced on
_________________________________________________________________

3. McGowan did not suggest that Jimmy testify. Instead, Appellant, on
his own initiative, brought Jimmy to the trial and asked him to testify.
McGowan admitted that she did not subpoena, interview or prepare
Jimmy.

4. The institutional vandalism and criminal mischief result from
Appellant's destruction of the detention cell and are not related to
Appellant's interaction with the police outside of Carol Ann's house.

5
January 30, 1987, receiving six months to one year on the
simple assault charge and six months to one year on the
institutional vandalism and criminal mischief charges. The
simple assault sentence ran consecutively to the
institutional vandalism and criminal mischief sentence. As
stated previously, Appellant has already served his
sentence for these convictions.

On August 30, 1989, seven or eight months after
Appellant's discharge from Pennsylvania parole supervision,
a certain Peter Petrovich was beaten "by a group of five or
six men, including appellant."5 Appellant was subsequently
arrested and convicted on one count of aggravated assault
and battery and one count of simple assault for his part in
the group effort to register displeasure on Petrovich's
person. Appellant was sentenced to a term of six to twelve
years imprisonment on the aggravated assault conviction.
Presently, he is serving a sentence based on charges from
this 1990 conviction, unrelated to his 1986 convictions.
Although he has served the term for the simple assault
charge, Appellant urges that his claim is not moot because
the assault charge was used to enhance his sentence from
the 1990 conviction for which he is still incarcerated.

II.

On September 15, 1994, Appellant filed a pro se petition
for writ of habeas corpus pursuant to S 2254. Appellant
filed an original and amended petition on November 29,
1995, and a Second Petition for Writ of Habeas Corpus on
November 7, 1996. In the petition Appellant claimed that he
was denied his Sixth Amendment right to effective
assistance of counsel during the proceedings leading up to
his 1986 convictions based on, among other things,
counsel's failure to subpoena any of the witnesses he
requested.6
_________________________________________________________________

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

6. Appellant also alleged that his counsel was ineffective for empaneling
two jurors adverse to Appellant's interests, failing to have the
institutional vandalism and criminal mischief charges dismissed and
failing to file post-trial motions. The District Court dismissed these
other
bases of ineffective counsel and, see infra Section V, Appellant does not
appeal their dismissal.

6
On April 20, 1998, an evidentiary hearing was held to
address Appellant's ineffective assistance of counsel claims.
At the hearing, each of the witnesses that Appellant stated
he had identified to counsel, namely, Carol Ann, Bobby,
Sherry, and George, testified that McGowan did not contact
them regarding Edward's trial and that he did not strike
any police officer. Bobby, Sherry, and George testified that
there was a party and Edward was present, that someone
had called the police and that the first thing that the police
did upon arrival was approach Edward and place him in
the back of one of the police cars. They testified that the
police then chased after Bobby, at which point George
jumped on the back of one of the officers to try to hinder
his attempt to arrest Bobby. Thus, according to these
witnesses' testimony, Appellant was in the police car the
entire time the police attempted to arrest Bobby. According
to the District Court, "McGowan's recollection of the case
[at the evidentiary hearing] was somewhat sketchy."7 She
_________________________________________________________________

7. From a review of the evidentiary hearing transcript, we agree with the
District Court's characterization of McGowan's memory of this case. At
the evidentiary hearing, McGowan testified:

Q. Ms. McGowan, is your testimony, today, base d on actual
recollection of this particular case, the Coss case, or are you
testifying, based upon your general practice, as a Public Defender,
when you were employed in the Public Defender's Office?

A. It would--it would be in part, yes, and i n part, no. Because
certain portions that I've responded to, I have direct
recollection. As
I said, I have direct recollection--once I looked at the sentencing
report, I had direct recollection, exactly, what had transpired. I
mean, once Mr. Coss told Judge Cottone, according to the
transcript, that he was thinking about an appeal, but they were
telling him this, and then I just--I recalled. I do recall
distinctly,
exactly, that they--the they . . was advising him this way, and he
would not listen to me, okay? When we wanted tofile the Post-trial
Motions on that, he did not want them. . . . That is direct
recollection. Now, the other stuff may be general.

. . . .

Q. Ms. McGowan, what I'm asking you about is, do you,
specifically, remember having this conversation with Eddie Coss
about these witnesses or is your testimony that this is how you
normally conduct yourself?

7
conceded during the hearing that she did not investigate
the events surrounding Coss' arrest, electing not to
dispatch her investigator to interview any of the witnesses
at issue, and defended her actions by stating that"Coss
must have told her not to subpoena them." Dist. Ct. Op. at
16 (June 10, 1998).

Following the hearing, the District Court denied
Appellant's ineffective assistance of counsel claims. The
court held that, although McGowan's failure to subpoena
these witnesses "fell below an objective standard of
reasonableness," Appellant failed to prove that he was
prejudiced by McGowan's failure because the verdict would
not have been different, given the inconsistency in the
accounts of Appellant and his brother on the one hand, and
the witnesses and the police on the other. Appellant
appeals this decision of the District Court, arguing on
appeal that the District Court erred in its application of the
prejudice prong of the ineffective assistance of counsel test
as stated in Strickland v. Washington, 466 U.S. 668 (1984).

III.

Our first inquiry is whether the sentencing court at the
1990 conviction took into consideration the 1986
conviction. The presentence report of the Lackawanna Adult
Probation Office indicated that Appellant had been
convicted on January 30, 1987 of Institutional Vandalism,
Criminal Mischief and Simple Assault and was sentenced
"[o]n the charge of Simple Assault 6 months to 1 years plus
costs, consecutive to the Institutional Vandalism sentence."
Pl.'s Ex. 5 at 5. On March 26, 1996, Appellant's counsel
raised the question whether Appellant's 1986 convictions
_________________________________________________________________

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

The questioning continued with McGowan answering the questions
regarding her failure to subpoena the witnesses in the form of what she
"would have" done or what Coss "must have" said, as distinguished from
stating what she "did" or what Coss "said."

8
should count as one misdemeanor, rather than two. Pl.'s
Ex. 2 at 5. A Mr. Mecca, ostensibly from the probation
office, commented:

To state that when the defendant committed a simple
assault in Dickson City was at that time petitioned,
charged, placed in juvenile detention, and the following
day in Scranton, Pennsylvania, decided or was charged
with institutional vandalism, destroying the cell he was
in, to say that is one and the same act as a simple
assault, which was followed by hours, if not a day of no
criminal activity, to say that is one under the
guidelines is an error, Judge."

Id. at 9.

At a continuation of the hearing the next day the judge
ruled that he "will view these as being one transaction, one
incident, one conviction, rather than two. Therefore, I will
be viewing the defendant with a prior record score of two
rather than three." Pl.'s Ex. 3 at 5. On April 28, 1993, the
judge stated that in determining the sentence "we've taken
into consideration your presentence investigation, the
report . . . [and] your prior record . . . ." Pl.'s Ex. 1 at 6.

We are satisfied that the sentencing judge for the 1990
conviction took into consideration Appellant's simple
assault conviction stemming from the events of June 25,
1986.

IV.

We must now decide whether the District Court had
subject matter jurisdiction over this habeas petition.
Section 2254 confers jurisdiction on United States District
Courts to entertain petitions for habeas corpus relief only
from persons who are "in custody" in violation of the
Constitution or laws or treaties of the United States. The
Supreme Court has interpreted S 2254 as mandating that
the petitioner be "in custody" pursuant to the conviction or
sentence he seeks to attack at the time his petition is filed.
See Carafas v. LaVallee, 391 U.S. 234 (1968). A habeas
petitioner does not remain "in custody" under a conviction
"after the sentence imposed for it has fully expired, merely

9
because of the possibility that the prior conviction will be
used to enhance the sentences imposed for any subsequent
crimes of which he is convicted." Maleng v. Cook, 490 U.S.
488, 492 (1989) (per curiam). A petitioner does, however,
satisfy the "in custody" requirement for federal habeas
jurisdiction when he asserts a challenge to a sentence he is
currently serving that has been enhanced by the allegedly
invalid prior conviction. Id. at 493. Moreover, in United
States v. Tucker, 404 U.S. 443 (1972), the Court held that
a prisoner could attack in a federal habeas proceeding an
allegedly unconstitutional conviction, even if he has served
in entirety the sentence resulting from the conviction, if
that conviction had an effect on a present sentence. See
also Young v. Vaughn, 83 F.3d 72, 78 (3d Cir. 1996)
(holding that "a prisoner may attack his current sentence
by a habeas challenge to the constitutionality of an expired
conviction if that conviction was used to enhance his
current sentence").

Although Appellant has already served the sentence
resulting from the allegedly unconstitutional 1986
convictions and is currently serving a sentence for an
unrelated conviction that occurred in 1990, he contends
that the sentence from his 1990 conviction was adversely
affected by the 1986 simple assault conviction. We have
concluded that the sentencing judge did, in fact, refer to
Appellant's 1986 conviction for assaulting a police officer in
sentencing him for his 1990 conviction. Appellant is thus
attacking his prior conviction in an attempt to have his
current sentence, which relied on his prior conviction,
reevaluated. The District Court therefore appropriately
construed Appellant's petition as challenging the 1990
conviction rather than his expired conviction, see Young v.
Vaughn, 83 F.3d at 75, and properly concluded that it had
jurisdiction over his S 2254 petition. Id. We have appellate
jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253.

V.

Absent a valid excuse, a habeas petitioner must present
all federal claims to the state courts. 28 U.S.C.S 2254(b);
Rose v. Lundy, 455 U.S. 509 (1982). "The exhaustion
requirement ensures that state courts have the first

10
opportunity to review federal constitutional challenges to
state convictions and preserves the role of the state courts
in protecting federally guaranteed rights." Evans v. Court of
Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230
(3d Cir. 1992) (citing O'Halloran v. Ryan, 835 F.2d 506, 509
(3d Cir. 1987)). Of course, "[i]nexcusable or inordinate delay
by the state in processing claims for relief may render the
state remedy effectively unavailable" and exhaustion will be
excused. Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.
1986).

Prior to filing his S 2254 petition, Appellant had a petition
challenging his 1986 conviction pending under
Pennsylvania's Post Conviction Hearing Act (PCHA), 42 Pa.
Cons. Stat. S 9541, et seq. (amended 1988), for
approximately seven years without any activity. Under
these circumstances, the District Court excused the
exhaustion requirement and we find no fault with that
decision. Appellant has not, however, presented to the
Pennsylvania state courts his claim that the invalid 1986
conviction was used to enhance his subsequent conviction
in 1990, the conviction being challenged by the underlying
habeas petition. Nonetheless, we conclude that this is not
a situation in which the District Court was faced with a
mixed petition necessitating a dismissal under Rose v.
Lundy. As was made clear by the Pennsylvania Supreme
Court in Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d
718 (1997), collateral relief is not available under either the
Post Conviction Hearing Act or under the common law
remedies of state habeas corpus or coram nobis for a
petitioner who is not currently serving a sentence of
imprisonment for the conviction he wishes to challenge,
even if petitioner contends that collateral consequences
stem from that conviction. Accordingly, insofar as state law
clearly forecloses state court review of Appellant's"collateral
consequence" claim, the District Court properly excused
exhaustion and entertained the claim on its merit. 8 See,
e.g., Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.
_________________________________________________________________

8. We view Commonwealth v. Ahlborn not as erecting a "procedural bar,"
but as a statement that there is no available state remedy for the claim
that the present sentence was incorrectly enhanced by an invalid prior
conviction."

11
1986) (citing Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(per curiam)).

VI.

Because Appellant submitted filings to the District Court
both before and after the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), we
think it necessary to briefly discuss the law governing this
action. We conclude that the amendments brought about
by AEDPA do not apply to this case as Appellant's original
petition and amendment were both filed prior to AEDPA's
effective date. See Lindh v. Murphy, 521 U.S. 320 (1997);
McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999); United
States v. Skandier, 125 F.3d 178 (3d Cir. 1997). Though
Appellant did file a "Second Petition" in November of 1996,
i.e., after the enactment of AEDPA, that petition did not add
new claims, but merely waived, as was permitted by the
District Court's order of October 23, 1996, those claims
presented in his original petition that were determined by
the District Court to be unexhausted. See Rose , 455 U.S. at
510 (petitioner may amend his petition to delete
unexhausted claims); McMahon v. Fulcomer, 821 F.2d 934,
941 (3d Cir. 1987) (same). In fairness, we view Appellant's
"Second Petition" filed after AEDPA as tantamount to a
further amendment or clarification to his initial petition,
filed at the direction of the District Court, which merely
expressed Appellant's intention to proceed with his
exhausted claims. Therefore, we consider all the claims
raised as having been asserted in a petition filed prior to
AEDPA's enactment date. See also United States v. Duffus,
174 F.3d 333, 336-337 (3d Cir. 1999) (discussing, inter
alia, the "relation back" provision of Rule 15(c), Federal
Rules of Civil Procedure and its application to clarifying
amendments to habeas petitions). Accordingly, pre-AEDPA
requirements govern. Appellant was obligated to obtain a
certificate of probable cause in order to appeal from the
District Court's judgment dismissing his habeas corpus
petition.

The pre-AEDPA certificate of probable cause did not
require specification of issues and placed the entire case
before the court of appeals. See Ramsey v. Bowersox, 149

12
F.3d 749, 759 (8th Cir. 1998); Herrera v. United States, 96
F.3d 1010, 1012 (7th Cir. 1996); see also United States ex
rel. Hickey v. Jeffes, 571 F.2d 762, 765-766 (3d Cir. 1978).
By contrast, the post-AEDPA certificate of appealability
requires specification as to which issues satisfy the
standard set forth in 28 U.S.C. S 2253(c)(2), i.e., those
issues for which the applicant has made a substantial
showing of the denial of a constitutional right. In the
instant case, rather than granting Appellant a certificate of
probable cause to appeal, the District Court granted
Appellant a certificate of appealability limited to his claim
that counsel rendered constitutionally ineffective assistance
by failing to subpoena witnesses on the simple assault
charge. Under pre-AEDPA law we determined that it is
inappropriate for a District Court to prescribe the issues or
issue which may be considered in support of or in
opposition to a judgment and that Appellant is free to
choose which claims to assert on appeal. Hickey , 571 F.2d
at 766. Because Appellant, through his attorney, limited his
request for a certificate on appeal to the one issue he
believed to be of "arguable merit," that is, the
ineffectiveness of counsel claim at issue, we see no reason
to extend our review beyond the merits of that claim.
Moreover, given our disposition of the appeal, we believe
that an expanded review would make little difference.

VII.

We now reach the merits of Appellant's Sixth Amendment
claim that he was denied effective assistance of counsel.
Because his contention involves the legal component of an
ineffective assistance of counsel claim, we exercise plenary
review. Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir.
1998).

To obtain relief based on an ineffective assistance of
counsel claim, a petitioner must not only show that his
counsel's performance was objectively unreasonable, but
also that it prejudiced his case. Strickland v. Washington,
466 U.S. at 692. The District Court determined that his
counsel's failure to subpoena the witnesses at issue was

13
objectively unreasonable, but denied relief because
Appellant had failed to demonstrate prejudice.9

To prove prejudice under the second prong of the
Strickland test, a defendant must "establish a reasonable
probability--one sufficient to undermine our confidence in
the outcome--that the jury's verdict would have been
different if not for counsel's errors." United States v. Gray,
878 F.2d 702, 712 (3d Cir. 1989). The District Court
reached its conclusion that Appellant had failed to
demonstrate prejudice because the witnesses who testified
at the evidentiary hearing painted a completely different
picture of the incident leading to Appellant's arrest from
that told by Appellant and his brother, Jimmy, at trial. The
evidentiary hearing testimony made clear that on the night
of the incident Appellant had been drinking at a party that
had to be broken up by the police. This version of events is
a far cry from Appellant's trial testimony of a calm, quiet
visit by him and his brother sabotaged by two rogue police
officers. Assuming that Appellant still would have testified
and would have testified in the way that he did, the District
Court reasoned that the failure to call these witnesses was
not prejudicial to Appellant. It reasoned that their
testimony, if offered, would only have suggested to the jury
that Appellant was lying on the witness stand and that
Appellant was drunk and excitable during the incident.
Because this case turned on a credibility determination
between Appellant and the officers, the District Court
reasoned that Appellant could not have been prejudiced by
counsel's failure to call witnesses who only would have
contradicted Appellant's version of the facts, destroying his
credibility with the jury.10 The District Court thus
_________________________________________________________________

9. We are not asked to review the issue of the reasonableness of
counsel's actions as justifiable or strategic decisions. Appellant's
attorney claimed no tactical merit to her failures except to say that she
must have done what Appellant wanted in not subpoenaing witnesses;
nor does the Commonwealth contest the District Court's finding that her
conduct "fell below objective standards of reasonableness."
10. The District Court also considered that Carol Ann and Bobby's
testimony would have been suspect since they are Coss' siblings, that
Sherry's testimony would have been suspect since she was Coss'
girlfriend, and that George Frieto's testimony, while seemingly beneficial
to Appellant in that he testified that it was he who attacked the officer,
is also not inconsistent with the officer's testimony that an individual
named George, in addition to Appellant, tried to hinder Bobby's arrest.

14
concluded that the outcome of the trial would have been no
different, that is, Appellant still would have been found
guilty of assaulting the officer, absent counsel's failure to
summon the other witnesses.

We disagree with the District Court. Although it is
unlikely that a court can determine with certainty the
result of the proceedings absent counsel's failure, we must
examine the "breadth of the evidence" and determine
whether the case would have come out the way that it did
if the witnesses had been present. United States v.
Kauffman, 109 F.3d 186, 191 (3d Cir. 1997). Having
examined the evidence in this case, including the
evidentiary hearing transcript, we conclude that a
reasonable probability exists that had counsel subpoenaed
the witnesses, Appellant would not have been found guilty
of assaulting the officer.

As a result of counsel's failure to conduct an
investigation into the events surrounding Appellant's arrest,
only Appellant and his younger brother Jimmy testified in
his defense. There can be little doubt that Appellant and
Jimmy decided to try to conceal the fact that they had been
drinking that evening because they were both underage.
Regardless of Appellant's motivation to lie about the context
of the incident provoking his arrest, however, both he and
Jimmy testified that Appellant did not assault a police
officer. At the evidentiary hearing held to investigate
Appellant's ineffective counsel claims, Carol Ann, Bobby,
Sherry and George all testified that there was a party at
Carol Ann's house, that the people at the party were
consuming alcohol, that a fight broke out, and that the
police came to break it up. Most important, they all testified
consistently that Appellant did not punch a police officer.
Bobby, Sherry and George testified consistently that it was
George who jumped on a police officer's back when the
officer assaulted Bobby. Finally, they testified consistently
that, at the time the officers arrested Bobby, which
according to the officers is the time that Appellant punched
the officer, Appellant was sitting in the police car with the
door shut.11 Thus, although the witnesses' rendition of what
_________________________________________________________________

11. It is important to note that all witnesses at the evidentiary hearing
were sequestered, thus bolstering the credibility of these witnesses'
convincingly consistent versions of the critical events.

15
happened on the night in question conflicts in large part
with Appellant's version at his trial, all accounts of the
evening are consistent in their most significant respect--
Appellant did not commit the assault alleged.

We believe that the District Court employed too narrow
an approach in analyzing Appellant's claim of prejudice.
When it reached the prejudice prong of the Strickland test,
the District Court stated that " `[p]rejudice' to a defendant
from the failure to call witnesses should be assessed in the
context of the other testimony presented by the defense
witnesses." Dist. Ct. Op. at 18 (June 10, 1998) (emphasis
added). The District Court phrased as the critical question:
would the result of the trial have been any different if,
instead of only Appellant and Jimmy testifying, the other
four witnesses had also testified in Coss' defense? In so
framing this question, the court assumed not only that
Appellant would still have testified on his own behalf, but
also that he would have told the same tale that he did at
trial.

Strickland teaches that a court consider"the totality of
the evidence before the judge or jury" in determining
prejudice. 466 U.S. at 695. "Some errors will have had a
pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and some
will have had an isolated, trivial effect." Id. at 695-696.

Here, counsel's error had a pervasive effect, altering the
entire evidentiary picture at trial. The testimony of the
witnesses not presented should not be considered as merely
a hypothetical supplement to the evidence actually offered
at trial, with the remainder of the trial presumed to unfold
as it actually did. Considering the totality of the evidence,
we believe that, had counsel subpoenaed the witnesses and
heard from them their version of the events (including that,
although the police were correct in their allegations, it was
George, not Appellant, who assaulted the officer), she would
not have presented at trial all versions of the evening's
events, including Coss' clearly fictional rendition. When we
assume the reasonably probable outcome without counsel's
ineffectiveness, we must also assume a scenario that
envisions counsel's acting effectively.12 The District Court
_________________________________________________________________

12. As pointed out by Appellant, if counsel had put both Appellant and
the witnesses at issue on the stand and presented an inconsistent theory

16
should have realized and considered the different course
that the trial would probably have taken had counsel acted
in an objectively reasonable manner by subpoenaing and
interviewing these witnesses, and then presenting a defense
consistent with their testimony. Had counsel interviewed
these witnesses, we believe that there is a reasonable
probability that Appellant would not have testified at all, or
that he would have testified consistently with the other
witnesses, thus avoiding the contradictory testimony that
troubled the District Court.

As the Court has emphasized, the prejudice inquiry also
involves concepts of reliability and fairness. See Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993). We believe that
counsel's failure to subpoena these witnesses was
prejudicial. They would have testified as to Appellant's
innocence to the simple assault charge. This strongly
suggests that the outcome of the trial would not have been
the same. In light of the quantity of exculpatory evidence
that was available yet not presented to the jury, we believe
counsel's conduct made the result of the trial
fundamentally unfair and unreliable. Appellant has thus
met his burden under Strickland to prove that he was
prejudiced by his counsel's failure to subpoena the
witnesses at issue.

We, therefore, conclude that the District Court erred in
denying the petition for a writ of habeas corpus.

VIII.

Finally, we must address what relief is appropriate. It has
been suggested that, inasmuch as Appellant has already
served his sentence under the tainted proceeding, the only
relief available is to direct the Commonwealth to re-
_________________________________________________________________

of defense, that in itself could constitute ineffective assistance. See
Bland
v. California Dep't of Corrections, 20 F.3d 1469, 1479 (9th Cir. 1994). Of
course, counsel cannot rely on Bland to say that it was proper for her to
not offer the witnesses' testimony in her attempt to present a consistent
theory of defense, because she did not interview these witnesses to
ascertain any inconsistencies.

17
sentence Appellant for the 1990 conviction without any
reference to the previous assault and battery conviction.

The normal relief that we grant in habeas corpus is to
order that the habeas petitioner be freed, subject to the
right of society to correct in a timely manner the
constitutional error through a new state proceeding. It
cannot be controverted that had Appellant filed his habeas
petition during the period he was incarcerated or on parole
from the first conviction and we decided that he had been
deprived of his Sixth Amendment right to counsel, we
would have accorded Pennsylvania the option of releasing
him or correcting the infirmity by means of a new trial or
other proceeding. See, e.g., Henderson v. Frank, 155 F.3d
159 (3d Cir. 1998); Barry v. Brower, 864 F.2d 294 (3d Cir.
1988).

Here, however, we cannot "free" Appellant because he has
already, in the vernacular, "done the crime and done the
time." We are thus faced with the very nice question:
Should we give society, here, the Commonwealth of
Pennsylvania, the right to cure the Sixth Amendment
constitutional defect or should we give the Appellant a free
ride and have his second sentence declared invalid simply
because he is a recidivist? In Henderson, we explained that
"federal habeas power is limited, first, to a determination of
whether there has been an improper detention by virtue of
the state court judgment; and second, if we find such an
illegal detention, to ordering the immediate release of the
prisoner, conditioned on the state's opportunity to correct
constitutional errors that we conclude occurred in the
initial proceedings." 155 F.3d at 168.

Appellant contends that where a previously infirm
conviction has been used to enhance the sentence in a
subsequent criminal case, the only remedy available to a
federal court is to require the state to re-sentence under the
second conviction and deny it the opportunity to correct the
constitutional infirmity in the previous case. He relies on a
series of cases which we now examine.

Appellant's primary reliance is on the teachings of United
States v. Tucker, 404 U.S. 443 (1972). We do not deem this
to be an appropriate analogue to this case or any other

18
federal habeas case brought under S 2254. By caption and
by content United States v. Tucker was not a habeas corpus
case brought under S 2254 based on a state conviction.
There the defendant was seeking post conviction relief from
a federal conviction pursuant to 28 U.S.C.S 2255. This is
a distinction with a fundamental difference. The Court
could not possibly condition relief on affording any state the
opportunity to retry the defendant because no state officials
were parties to the lawsuit. No state wardens, custodians or
state officers were respondents or defendants as in the case
of a S 2254 petition. In bringing his action, Tucker was
attacking a federal sentence imposed by the District Court
for the Northern District of California that had been
enhanced on the basis of invalid state court convictions
from Florida and Louisiana. Because the Court had no
state officers as petitioners or respondents before it, the
Court lacked power or authority to give the option to a state
court in Florida or Louisiana to retry the defendant. To
prevent the "erosion of the Gideon principle" that the right
to effective assistance of counsel is fundamental, the Court
had no alternative other than to order that the defendant
be re-sentenced on the federal conviction without reference
to the invalid state court convictions.13 In contrast, in every
habeas petition brought under S 2254, an officer of the
state or a political subdivision thereof is always the
respondent. The teachings of Tucker reflect one exception to
the general rule of permitting the state to correct the
constitutional infirmity in a subsequent sentence
enhancement case--where the federal court lacks the
authority to afford the state the opportunity to correct the
constitutional infirmity because no state officer is a party to
the litigation. We now turn to other exceptions reflected in
the cases.
_________________________________________________________________

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

[T]he real question here is not whether the results of the Florida
and
Louisiana proceedings might have been different if the respondent
had had counsel, but whether the sentence in the 1953 federal case
might have been different if the sentencing judge had known that at
least two of the respondent's previous convictions had been
unconstitutionally obtained.

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

19
This court has held that where a return to the state for
additional proceedings "would be virtually impossible"
under the circumstances, the federal court in aS 2254 case
may simply order re-sentencing on the subsequent
conviction without affording the state an opportunity to
cure the previous constitutionally infirm conviction. See
Clark v. Commonwealth, 892 F.2d 1142 (3d Cir. 1989).
Clark was a deprivation of due process case lodged against
a prior conviction that served to enhance the sentence for
a subsequent offense. The gravamen of the petitioner's
complaint was that in 1974, when Clark was 17 years of
age, he was denied a juvenile court hearing to determine
whether he should have been tried as a juvenile or as an
adult. We determined that this denial constituted a due
process violation, reversed the district court and granted
relief, and, without elaboration at this point in the opinion,
ordered that "the matter must be remanded for re-
sentencing on the 1979 conviction without consideration of
the prior offenses." 892 F.2d at 1153. Nevertheless, earlier
in our opinion, recognizing that at the time we heard this
appeal in 1989, the petitioner was 31 years old, there is a
statement of reasons supporting our determination of the
proper relief. Although set forth in our discussion of a
portion of the Pennsylvania Post-Conviction Hearing Act, we
commented that "both the delay, 16 years since the alleged
due process violation, and the prejudice . . . are present.
. . . Given the death of the trial judge and the destruction
of the relevant stenographic notes, to now defend against
this issue in a collateral proceeding would be virtually
impossible. . . . To return to the Pennsylvania courts would
thus be futile." 892 F.2d at 1148-1149. Moreover, before us
and in the district court the Commonwealth gave no
indication that it wished to pursue further proceedings in
the constitutionally infirm 1974 prosecution. The only relief
possible was to order a re-sentencing on the subsequent
conviction without enhancement. Thus, Clark reflects a
second exception to the general rule permitting the state to
exercise the option of additional proceedings.

In addition, a defendant could not be retried by the state
where the trial never should have been held because of a
serious constitutional violation such as denial of a right to

20
a speedy trial. Barker v. Wingo, 407 U.S. 514, 522 (1972).
Barker teaches that:

[T]he [speedy trial] right also leads to the
unsatisfactorily severe remedy of dismissal of the
indictment when the right has been deprived. This is
indeed a serious consequence because it means that a
defendant who may be guilty of a serious crime will go
free, without having been tried. Such a remedy is more
serious than an exclusionary rule or a reversal for a
new trial, but it is the only possible remedy .

Id. (emphasis added). The Court also teaches that dismissal
is the only remedy for violation of the double jeopardy
principle. In Benton v. Maryland, 395 U.S. 784, 795-796
(1969), the Court remarked:

[T]he State with all its resources and power should not
be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility
that even though innocent he may be found guilty.

Id. (quoting Green v. United States, 355 U.S. 184, 187-188
(1957)).

An example of a double jeopardy problem would arise if
a petitioner were successful in a case like Jackson v.
Virginia, 443 U.S. 307 (1979). In Jackson , the petitioner
claimed in a habeas corpus proceeding that he had been
convicted on constitutionally inadequate evidence. The
Court held that the petition would be granted if"upon the
record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt."
Id. at 324. Had the petition been granted in that case, the
state could not retry the petitioner because it would violate
his right against double jeopardy. See also Burks v. United
States, 437 U.S. 1, 11 (1978) ("The Double Jeopardy Clause
forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which
it failed to muster in the first proceeding. This is central to
the objective of the prohibition against successive trials.").

21
Another situation where a defendant cannot be retried is
when a writ is granted because the state denied the
petitioner due process of law by suppressing or destroying
exculpatory evidence that no longer can be reconstructed.
See Brady v. Maryland, 373 U.S. 83 (1963). If the
prosecution were to not only withhold exculpatory evidence
in violation of Brady, but also destroy it, a defendant could
never receive a fair trial. The defendant could never
produce the totality of the evidence in his or her defense
because of the constitutional violations. In this instance,
the only constitutional remedy would be unconditional
granting of the writ.

There is no parallel between the case at bar and those
cases where courts have determined that states should not
be entitled to retry the petitioner.

* * * * *

Therefore, we will condition the entry of the writ by
extending to the Commonwealth the option of conducting a
new trial. If this new trial produces a verdict different from
the prior verdict, the state must re-sentence Appellant to
account for any enhancement due to this guilty verdict.14
_________________________________________________________________

14. Even if the Commonwealth elects to retry Coss, he will have to be re-
sentenced regardless of the outcome. Even if a valid conviction is
forthcoming on the earlier charge, nothing changes the fact that his
current sentence was enhanced by an unconstitutional violation. A
vacated conviction is not the same conviction as one that occurs after
vacatur. Thus, in the event of a valid conviction, he would still have to
be re-sentenced on the subsequent offense in light of new proceedings on
the earlier offense.

We hold only that a retrial on the earlier offense would not violate the
Federal Constitution and that comity requires us to afford the
Commonwealth the opportunity to cure the original constitutional defect.
We express no opinion on whether such a retrial would be consistent
with Pennsylvania law. Moreover, if there is a conviction on retrial of
the
earlier offense, the Double Jeopardy Clause requires that the time he
has already served on the original 1990 sentence be credited against the
new sentence. North Carolina v. Pearce, 395 U.S. 711, 718-719 (1969)
("If, upon a new trial, the defendant is acquitted, there is no way the
years he spent in prison can be returned to him. But if he is reconvicted,
these years can and must be returned--by subtracting them from
whatever sentence is imposed."), overruled on other grounds by Alabama
v. Smith, 490 U.S. 794 (1989).

22
The Commonwealth also has the option of not affording a
new trial and merely proceeding into re-sentencing on the
1990 conviction.

For the reasons stated above, we will reverse the
judgment of the District Court that denied the petition for
a writ of habeas corpus and remand with instructions that
it issue a writ of habeas corpus conditioned on the
foregoing options available to the Commonwealth.

23
NYGAARD, Circuit Judge, dissenting.

I agree with much of the majority's opinion. Indeed, I
agree that Coss was denied effective assistance of counsel
during his 1986 trial for simple assault, and that his
subsequent conviction on that charge is constitutionally
infirm as a result. I part company with the majority over
the question of whether the challenged sentence"might
have been different if the sentencing judge had known that
at least [some] of the respondent's prior convictions had
been unconstitutionally obtained." United States v. Tucker,
404 U.S. 443, 448 (1972). On this record, I have no doubt
that the sentencing judge would have imposed exactly the
same sentence had he known Coss' 1986 conviction for
simple assault was constitutionally infirm. Therefore, I
respectfully dissent from that portion of the majority's
opinion holding that Coss is entitled to habeas relief.
Because I conclude that no relief is due, I express no view
on the propriety of the majority's remedy.

This is at least the third time that Coss has asked a
court to review the sentence arising from his 1990
conviction for simple and aggravated assault. Thefirst time,
the Pennsylvania Superior Court "vacated the sentence
because it was not clear that the presentence report was
accurate" and remanded the case for resentencing. See
Commonwealth v. Coss, 695 A.2d 831, 833 (Pa. Super.
1997) (mem) (citing Commonwealth v. Coss, 674 A.2d 313
(Pa. Super. 1996)).

At his resentencing hearing, Coss challenged both the
gravity assigned to his aggravated assault conviction, and
its enhancement based on his criminal record. See id. The
sentencing court agreed that his three misdemeanor
convictions in 1986 all arose from the same action and,
accordingly, reduced his prior record score from 3 to 2. See
id. The effect of the adjustment was to eliminate the 1986
convictions from Coss' prior record score entirely. The post-
adjustment score of 2 was based solely on Coss' 1985
adjudication of delinquency. See id. at 835. Despite making
the adjustment, however, the court resentenced Coss to the
same six-to-twelve-year sentence it had originally imposed.
That sentence remained within the standard range provided
by the state sentencing guidelines even after the prior

24
record adjustment, and the court found no reason for a
downward departure. See id. at 833-34.

In resentencing Coss to the same sentence it had
originally imposed, the sentencing court considered a
number of different factors. In explaining the sentence for
the record, the court informed Coss that:

in passing sentence on you I've taken into
consideration the presentence investigation report, and
I've deleted therefrom all the remarks through the
matter brought to my attention by [defense counsel]
and I will not consider those matters.

I've taken into consideration the statements by
[defense counsel] and the seriousness and nature of
the crime involved here, the well being and protection
of the people who live in our community, your prior
criminal record, the possibility of your rehabilitation,
and the testimony that I've heard. I was the trial judge,
and I take into consideration the testimony from the
trial.

Sentencing Transcript of 03/27/1996 at 4-5, reproduced in
Supp. App. at 243-44.

I would not deny Coss the relief he seeks merely because
his prior criminal record was only one of many factors on
which the sentencing court based its decision. Instead, I
would deny relief because his 1986 simple assault
conviction is such a minor component of that record that
there is no question that the sentencing court, given its
concerns, would have imposed exactly the same sentence in
any event.

Given the nature of Coss' appeal, it is certainly
understandable that the focus of attention has been on the
challenged 1986 conviction for simple assault. But I take a
broader view and include the extensive criminal record that
Coss has managed to compile. It starts with a 1980 arrest,
when Coss was 11 years old, for recklessly endangering
another person. See Presentence Investigation Report at 4,
reproduced in Supp. App. at 258. Thereafter, Coss was
adjudicated delinquent on five separate occasions (when he
was 12, 13, 15 and 16 years old) for, respectively: (1) theft

25
and receiving stolen property; (2) disorderly conduct and
resisting arrest; (3) simple assault; (4) yet another simple
assault; and (5) burglary. See id.

As an adult, Coss has been convicted on the aggravated
and simple assault charges for which he is currently
imprisoned. In separate incidents, he has pleaded guilty to
disorderly conduct after being charged with that offense, as
well as with hindering apprehension, in 1989. He also
pleaded guilty to possession of a controlled substance in
1992 after being charged with that offense, and with
reckless endangerment in 1991.

In addition, Coss' record at the time of sentencing
included:1

(1) a 1986 arrest for making terroristic threats;

(2) a 1988 arrest for aggravated assault and simple
assault;

(3) a 1988 arrest for delivery of a controlled substance
(heroin);

(4) a 1989 arrest for aggravated assault, simple assault,
recklessly endangering another person and disorderly
conduct;

(5) another 1989 arrest for aggravated and simple assault;

(6) yet another 1989 arrest for simple assault as well as
for making terroristic threats;

(7) a 1990 arrest for simple assault and retail theft; and

(8) a 1990 arrest for retail theft and criminal conspiracy;
_________________________________________________________________

1. Under Pennsylvania law, a sentencing court may consider prior
arrests in an offender's record, that did not result in convictions, "so
long as the court realizes that the defendant had not been convicted on
those prior charges," and does not give them"undue weight." See
Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super. 1982) (citing
Commonwealth v. Straw, 361 A.2d 427 (Pa. Super. 1976); Commonwealth
v. Tisdale, 334 A.2d 722 (Pa. Super. 1975); Commonwealth v.
Shoemaker, 313 A.2d 342 (Pa. Super. 1973), aff 'd 341 A.2d 111 (1975));
see also Commonwealth v. Allen, 489 A.2d 906, 912 n.4 (Pa. Super.
1985).

26
See id. at 5-7.

The 1996 sentencing court was intimately familiar with
Coss, with the charges on which he had been convicted,
and with his criminal record. It had the opportunity to hear
the evidence against Coss at trial. It had the opportunity to
hear from Coss at sentencing. See Sentencing Transcript of
04/28/1993 at 4-5, reproduced in Supp. App. at 199-200.
Most importantly, it had the relatively rare opportunity to
reconsider its decision when the original sentence was
vacated on appeal. Yet, the court chose to impose the same
sentence it had initially imposed, finding "no reason" for a
reduction. See Sentencing Transcript of 03/27/1996 at 26,
reproduced in Supp. App. at 244.

In finding no reason to reduce Coss' sentence, the court
found it "indicative from [Coss'] actions" that he would
"continue to break the law." Id. Given the extensive and
often violent nature of Coss' criminal record, Ifind it
impossible to conclude that the sentencing court's concerns
for "the well being of the people who live in our community"
and the "possibility for [Coss'] rehabilitation" would have
been allayed by the omission of his 1986 conviction for
simple assault from his criminal record. Because I am
certain that the sentencing court would not have sentenced
Coss differently had it known that one conviction was
constitutionally infirm, I respectfully dissent from the
majority's conclusion to the contrary.

Judge Roth joins in this dissenting opinion.

27
RENDELL, Circuit Judge, concurring in part and dissenting
in part:

I concur with the reasoning and result of the majority
opinion in all respects except its discussion of the relief to
be afforded to Eddie Coss as set forth at Part VIII. I believe
that Part VIII of the majority opinion proceeds from an
erroneous premise about a "general rule" to be followed in
habeas cases challenging a sentence enhancement, ante at
19, 20, and then, as a result, asks the wrong question
about what relief is appropriate in this particular case.1 I
conclude that: (1) a "general rule" favoring retrial does not
exist in subsequent sentence enhancement cases; (2) for
reasons of prudence and comity, the better alternative in
this case is to condition our writ only on the
Commonwealth court's resentencing Coss on his 1990
conviction; and (3) such a writ would not provide an
untoward "windfall" to the petitioner.

The majority's discussion of remedy begins with the
unobjectionable proposition that "[t]he normal relief that we
grant in habeas corpus is to order that the habeas
petitioner be freed, subject to the right of society to correct
in a timely manner the constitutional error through a new
state proceeding." Ante at 18. I take no issue with this
statement, nor do I disagree with the majority's assertion
that, in S 2254 cases, there is a "general rule of permitting
the state to correct the constitutional infirmity," and that
this rule extends to subsequent sentence enhancement
cases as well as other habeas cases. Ante at 19.

However, the majority then makes an unarticulated leap
of logic that I cannot accept, transforming its general rule
that the state should be permitted to correct its
constitutional error into a "general rule" that the state
should be permitted retrial as the method for this correction
whenever possible. This latter rule simply does not exist. It
is true, as the majority observes, that in an ordinary
_________________________________________________________________

1. This "nice" question, see ante at 18, is: "Should we give society,
here,
the Commonwealth of Pennsylvania, the right to cure the Sixth
Amendment constitutional defect or should we give the Appellant a free
ride and have his second sentence declared invalid simply because he is
a recidivist?"

28
habeas case -- one in which the confinement that gives rise
to the S 2254 petition stems directly from the conviction
that is alleged to be deficient -- the writ normally granted
is a conditional writ allowing the state to retry the
defendant. This is because, in garden-variety habeas cases,
the "constitutional infirmity" being complained of lies in the
conviction being challenged. In contrast, in a situation
involving an improperly enhanced sentence, it is the latter
sentence itself that is the basis for our jurisdiction and that
is the "constitutional infirmity" complained of. See Maleng
v. Cook, 490 U.S. 488, 490 (1989) (per curiam) (stating that
a habeas petitioner in an enhancement case is not"in
custody" on the earlier expired sentence, but rather is "in
custody" only on the subsequent enhanced sentence);
Young v. Vaughn, 83 F.3d 72, 75-76 (3d Cir. 1996) (stating
that we have jurisdiction in a Maleng-type case only
because the habeas petition is construed as challenging the
subsequent enhanced sentence rather than the underlying
conviction, and pointing out that "the purpose of
[petitioner's] petition is presumably to terminate the
sentence he is presently serving"). Accordingly, while I agree
that we should "permit the state to correct the
constitutional infirmity," I believe that this goal is to be
accomplished by conditioning our writ on the state's
resentencing Coss in a manner consistent with the
knowledge that his 1986 conviction was obtained without
the effective assistance of counsel. Such a writ, which
would instruct the state to release Coss unless it
resentences him in a fashion that accords with our
determination that the use of the 1986 conviction as a
sentencing enhancer was improper and rendered his
sentence unconstitutional, is an exact parallel to the
conditional writ in an ordinary habeas case, which
instructs the state to release the petitioner unless it repeats
the offending process in a way that accords with the
reviewing court's determination that some aspect of that
process was constitutionally infirm.

The majority asserts that cases such as Tucker2 and Clark3
_________________________________________________________________

2. United States v. Tucker, 404 U.S. 443 (1972).

3. Clark v. Pennsylvania, 892 F.2d 1142 (3d Cir. 1989).

29
are exceptions to a general rule that the state should be
permitted retrial whenever possible, even in the sentencing
enhancement scenario. However, the majority has not been
able to point to one enhancement case in which a habeas
court has ordered retrial on the initial charge, or even
suggested retrial as a potential form of relief. Nowhere in
the case law is there support for the proposition that Tucker
was conceived as an exception to a general rule of retrial
applicable in sentence enhancement cases.4 Although it is
true that Tucker, unlike the instant case, addresses the use
of earlier state convictions as invalid enhancements of a
federal sentence, there is no evidence either in Tucker itself
or in subsequent cases citing Tucker that Tucker is limited
to cases arising from S 2255 petitions. The majority quotes
an excerpt from Tucker as support for the theory that
Tucker is so limited, see ante at 19 n.13. However, the
majority has omitted the lines immediately preceding that
excerpt, which clearly point in the opposite direction. The
full content of the relevant passage is instructive:

We need not speculate about whether the outcome of
the respondent's 1938 and 1946 prosecutions would
necessarily have been different if he had had the help
of a lawyer. Such speculation is not only fruitless, but
quite beside the point. For the real question here is not
whether the results of the Florida and Louisiana
proceedings might have been different if the respondent
had had counsel, but whether the sentence in the 1953
federal case might have been different if the sentencing
judge had known that at least two of the respondent's
previous convictions had been unconstitutionally
obtained.
_________________________________________________________________

4. Cases cited by the majority such as Henderson v. Frank, 155 F.3d
159, 162 (3d Cir. 1998), which ordered a writ conditioned on retrial, and
Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988), which ordered a writ
conditioned on re-appeal (the relief granted in Barry was re-appeal
because the violation in question occurred in the appellate proceeding),
simply do not present the same situation as the instant case; Henderson
and Barry are not sentence enhancement cases and only involve the
"garden-variety" habeas scenario. Similarly, the double jeopardy and
other non-sentence enhancement cases cited by the majority do not
resolve the question before us.

30
Tucker, 404 U.S. at 447-48. In other words, the relevant
inquiry is not an inquiry into the prior convictions
themselves; the Supreme Court's characterization of such
speculation as being "quite beside the point" suggests that
the convictions are not the appropriate targets of our relief.
Rather, as Tucker states, the "real question" is whether the
result of the sentencing proceeding is suspect. I cannot
accept the majority's statement that Tucker's import is
somehow limited to S 2255 petitions. Tucker simply does
not present itself as an exception to a general rule. Nor has
our Court's jurisprudence understood Tucker as such.5
Rather, Tucker appears to reflect a background assumption
that resentencing -- providing the sentencing court with
the opportunity to correct the infirm sentence that was
attacked in the habeas petition -- is the appropriate
remedy in habeas challenges to sentence enhancements.

Many federal appellate cases, including some of our own,
support the basic concept that resentencing is the default
form of relief in habeas challenges to invalid sentence
enhancements. The law of our Court is actually quite clear
on this point. In Clark, we held that where a Pennsylvania
sentencing judge wrongly considered two previous
Pennsylvania convictions obtained while Clark was a
juvenile but without appropriate juvenile procedures, the
appropriate relief on Clark's S 2254 petition challenging the
enhanced sentence was resentencing on the later,
wrongfully enhanced charge. See Clark, 892 F.2d at 1143-
44. In its references to resentencing as the proper remedy,
_________________________________________________________________

5. Third Circuit case law clearly states that Tucker itself is applicable
beyond the S 2255 context. In Clark, aS 2254 enhancement case, we
made several references to the fact that Tucker was the governing
precedent. See Clark, 892 F.2d at 1144 ("Thus, under the mandate of
United States v. Tucker, the matter must be remanded for resentencing
of the 1979 conviction with instruction that the 1974 convictions,
obtained in violation of Clark's constitutional right to due process, not
be
considered in the imposition of the sentence.") (citation omitted); id. at
1149 n.10 ("The only relief permitted under Tucker is resentencing on
the subsequent conviction."); id. at 1150 ("Because the 1974 convictions
were relied upon by the 1980 sentencing court, Clark is entitled to the
relief provided by Tucker and must be resentenced."). That is, we not
only afforded resentencing as the relief in a S 2254 case, but also
explicitly stated that Tucker controls S 2254 as well as S 2255 cases.

31
Clark is replete with language about "mandates" and
"musts,"6 and refers to resentencing as "[t]he only relief
permitted under Tucker." Id. at 1149 n.10. The majority's
efforts to explain Clark away on the basis that the sixteen
years that had passed since the prior trial made retrial in
Clark impracticable are unavailing; these arguments would
be equally applicable to Coss's case, in which retrial would
require reopening of a simple assault case whose events
took place nearly fourteen years ago. Other Courts of
Appeals have apparently assumed resentencing as the relief
in sentence enhancement cases, and indeed the Seventh
Circuit Court of Appeals has specifically read Tucker's
holding to extend to S 2254 cases. See, e.g., Crank v.
Duckworth, 905 F.2d 1090, 1090 (7th Cir. 1990) ("Tucker
holds that `misinformation of constitutional magnitude' --
that is, reliance on an invalid prior conviction-- authorizes
relief from the current sentence.") (citation omitted);7
Feldman v. Perrill, 902 F.2d 1445, 1449-50 (9th Cir. 1990)
(stating that if the challenged prior conviction is indeed
flawed, the appropriate remedy shall be a remand to the
Parole Commission for a recomputation of the petitioner's
parole eligibility on the later offense without consideration
of the challenged conviction);8see also Smith v. Farley, 25
F.3d 1363, 1368 n.10 (7th Cir. 1994) (stating that a
petitioner challenging a wrongly enhanced sentence would
not be seeking to set aside his original conviction as
constitutionally invalid, but would merely be challenging
"the constitutionality of his conviction as used to enhance
his present sentence"). In fact, Justice Souter has described
_________________________________________________________________

6. See, for example, the three excerpts from Clark quoted in note 5
above.

7. Crank, like the instant case, is aS 2254 petition case in which both
the prior, allegedly flawed conviction and the subsequent sentence that
relied on that conviction as an enhancement were state offenses (both
the initial and subsequent Crank convictions were Indiana state
convictions).

8. Although Feldman, like Tucker, addresses the use of a flawed previous
state conviction in a subsequent federal proceeding, nothing in Feldman
suggests that reaching back to the original conviction would be
appropriate in any sentence enhancement case. The Ninth Circuit Court
of Appeals noted that Feldman was "indistinguishable from Maleng," a
S 2254 case. Feldman, 902 F.2d at 1448.

32
the "uniform appellate case law" in this area as suggesting
that the wrongly enhanced sentence, not the prior
conviction, is the target of the habeas petition. See Custis
v. United States, 511 U.S. 485, 512 (1994) (Souter, J.,
dissenting) (joined by Blackmun and Stevens, JJ.) (pointing
out that the Custis majority's holding "does not disturb
uniform appellate case law holding that an individual
serving an enhanced sentence may invoke federal habeas to
reduce the sentence to the extent it was lengthened by a
prior unconstitutional conviction"). At the very least, I think
it clear that the appellate case law dispels any notion of a
"general rule" favoring retrial on the previous conviction in
an enhancement case.

I think it equally clear that resentencing is the
appropriate remedy in this case, for several reasons
implicating both judicial prudence and comity. First, I am
not convinced that we even can afford the relief suggested
by the majority. Having served his entire sentence on the
original 1986 conviction, Coss clearly is not "in custody" on
that charge, see Maleng, 490 U.S. at 490, and therefore
would not have recourse to the remedy of retrial through a
habeas petition at this point. It is unclear to me that we
have the power to provide that same relief, the benefits of
which are unavailable to the petitioner in a habeas petition
challenging a subsequent enhanced sentence, to the
respondent in that same petition. I have found no federal
case that addresses this question,9 and I believe that we
should not reach out to decide this issue unnecessarily
when we can instead choose the well-established option of
simply conditioning our writ on the Commonwealth's
resentencing Coss on the 1990 conviction.
_________________________________________________________________

9. A leading treatise on federal habeas procedure notes that Maleng left
open this very question. See 1 James S. Liebman & Randy Hertz, Federal
Habeas Corpus Practice and Procedure S 8.2c, at 333 n.20 (3d ed. 1998)
("Maleng . . . left open . . . [the] question whether, in the process of
voiding a current sentence enhanced on the basis of an
unconstitutionally imposed prior conviction as to which custody has
terminated, the prior conviction `itself ' may be voided, thus depriving
it
of other collateral consequences in addition to its effect on the sentence
currently being served.") (citing Maleng, 490 U.S. at 493-94).