Fischetti v. Johnson

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

9-22-2004

Fischetti v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 02-4026

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 PRECEDENTIAL CHRISTINE H. NOONING (Argued)
P.O. Box 100087
UNITED STATES COURT OF Pittsburgh, PA 15233
APPEALS
FOR THE THIRD CIRCUIT Counsel for Appellant

STEPHEN A. ZAPPALA, JR.
No. 02-4026 District Attorney

MICHAEL W. STREILY
VINCENT FISCHETTI, Deputy District Attorney

Appellant RONALD M. WABBY, JR. (Argued)
Assistant District Attorney
v.
Office of the District Attorney
PHILIP JOHNSON; 401 Allegheny County Courthouse
GERALD J. PAPPERT* Pittsburgh, PA 15219

Counsel for Appellee

On Appeal from the
United States District Court OPINION OF THE COURT
for the Western District of Pennsylvania
(Dist. Ct. No. 02-cv-00931)
District Judge:
CHERTOFF, Circuit Judge.
Honorable Gary L. Lancaster
Vincent Fischetti appeals a final
order of the District Court denying his
petition for habeas corpus. Fischetti
Argued March 24, 2004 argues, inter alia, that he was denied his
Sixth Amendment right to counsel when
Before: ROTH, AMBRO, and he was tried in state court without
CHERTOFF, Circuit Judges. representation by an attorney. Before
facing trial for the second time on burglary
(Filed: September 22, 2004) charges, Fischetti declared to the state trial
judge that he wanted to fire his appointed
counsel—his third—and postpone
proceedings so that new counsel could be
*
Pursuant to Fed. R. App. P. 43(c) named. The judge gave Fischetti the

1
choice of continuing with his appointed admission of prior testimony without a
attorney, having the appointed attorney preliminary determination that the
assist as co-counsel, or representing witnesses were unavailable for trial
himself. When Fischetti refused all infringed on Fischetti’s Sixth Amendment
options, the state trial court determined right to confront witnesses. We will
that Fischetti was capable of representing remand the case to the District Court for
himself and had him proceed pro se. further proceedings on this ground alone.
Fischetti was convicted of thirty-eight
I.
counts of burglary.
This appeal caps a long and
This case presents two principal
circuitous litigation that has spanned over
issues:
twenty years in Pennsylvania state court
First, when a criminal defendant and federal court. On May 6, 1981,
unreasonably rejects appointed counsel Fischetti was convicted by a jury in the
and also rejects the option of proceeding Court of Common Pleas, Allegheny
pro se, is it proper for the trial court to County, Pennsylvania, of one count of
force that defendant to represent himself? resisting arrest and a total of forty-three
counts of burglary. He was subsequently
Second, if the correct course for the
sentenced to twenty-two and one-half
trial court here would have been to compel
years to two hundred and twenty years of
Fischetti to continue with his appointed
imprisonment. Over the next three years,
counsel, was the court’s actual decision to
Fischetti filed a series of appeals and post-
compel the defendant to proceed without
conviction hearing petitions contesting his
counsel “contrary to . . . clearly established
1981 conviction in Pennsylvania state
federal law, as determined by the Supreme
court. Fischetti filed his first pro se
Court of the United States” or an
petition for habeas corpus in District Court
“unreasonable application” of that law, so
in 1984, which was dismissed the
that habeas relief under 28 U.S.C. §
following year.
2254(d)(1) is authorized?
On March 13, 1991, Fischetti filed
We conclude that the state trial
his second pro se motion for post
court should not have compelled Fischetti
conviction collateral relief. Attorney
to represent himself. We also conclude,
Ralph Karsh was appointed as Fischetti’s
however, that the trial court’s decision did
second counsel. In November of 1992,
not violate clearly established federal law
Karsh filed a petition to withdraw as
as established by the Supreme Court and
counsel, citing irreconcilable differences.
did not unreasonably apply that law.
The trial court appointed Thomas
We are compelled to reverse the Fitzgerald to represent Fischetti in post-
District Court’s judgment in part on one conviction proceedings. A series of
other ground, however. The state court’s hearings was held before the trial court,

2
and on December 21, 1993, the trial court On November 18, 1994, Fischetti
granted the relief requested in the post- appeared in trial court, refused to agree to
conviction petition, dismissed three of the a trial date, and asserted that he did not
burglary charges, and granted a new trial want Fitzgerald to serve as his counsel.
on the remaining counts. The case was That day, Judge Novak sent a letter to
assigned to the Honorable Raymond A. Fischetti rejecting Fischetti’s complaint
Novak for trial. On June 12, 1994, that Fitzgerald was not acting in his best
Fischetti filed a pro se petition to dismiss interest. On December 29, 1994, Judge
his second court-appointed counsel, Novak denied Fischetti’s request for new
Fitzgerald, and to have new counsel counsel and gave him three choices:
appointed. On June 15, 1994, Fischetti continue to have Fitzgerald represent him,
filed a pro se petition to Dismiss Pursuant represent himself with Fitzgerald assisting
to Pennsylvania Rule of Criminal as co-counsel, or represent himself
Procedural 1100. without co-counsel. Fischetti refused the
first two options and claimed that he could
In the following months, the trial
not represent himself. Judge Novak
court and Superior Court of Pennsylvania
determined that Fischetti was capable of
reviewed the blizzard of motions filed by
representing himself and set the trial date
Fischetti, which were each denied in turn.1
for April 3, 1995. Meanwhile, in the
midst of these proceedings, Fischetti filed
1
On August 30, 1994, the trial a pro se Petition for Writ of Habeas
court denied Fischetti’s May 5, 1994 Corpus in United States District Court on
Motion to Dismiss for Double Jeopardy. December 20, 1994. On March 14, 1995,
The following month, Fischetti filed a the District Court dismissed his petition
Notice of Appeal contesting that order, and denied a certificate of probable cause.
both pro se and through counsel, in On May 1, 1995, a jury trial began
Superior Court. On November 10, 1994, before Judge Novak. Throughout the
the Superior Court deemed the appeals proceedings, Fischetti sat mute in protest
frivolous. Two months earlier, on of the court order that he proceed pro se.
September 19, 1994, the Superior Court On May 5, 1995, he was found guilty of
also denied Fischetti’s September 2, 1994 thirty-eight counts of burglary. He
pro se motion for Emergency Order of received a sentence on two of the counts
Court Dismissing Appellant from Custody totaling twenty to forty years of
of Allegheny County Court under Rule imprisonment.2
1100 or in the Alternative Immediately
Order Allegheny County to Hold
Evidentiary hearing. Fischetti also filed a December 12, 1994.
pro se Writ of Mandamus with the
2
Supreme Court on September 27, 1994. Sentence was evidently not
The Supreme Court denied the petition on imposed on the other counts.

3
 Fischetti filed a series of appeals represent himself at trial” and (2) “whether
contesting his conviction, some pro se and the remaining three claims . . . should
some through his former counsel properly be considered defaulted, as
Fitzgerald3 , as well another appointed procedural mistakes during the second
counsel, Helen Lynch. On December 30, trial, when appellant acted as his own
1997, the Superior Court affirmed the counsel, appear to be the basis of the
judgment of the trial court. The Supreme procedural default for all three remaining
Court of Pennsylvania denied Fischetti’s claims.”
petition for Allowance of Appeal on June
II.
28, 1998. On February 1, 1999, Fischetti
filed a pro se Motion for Post Conviction A.
Collateral Relief. In the following
The thrust of this appeal is
months, three more new attorneys were
Fischetti’s claim that he was denied his
appointed for Fischetti; his first and
Sixth Amendment right to counsel at trial
second court-appointed appellate attorneys
when he was not granted new appointed
withdrew. On June 21, 2000, the trial
counsel and was left to represent himself.
court entered an order dismissing
Although we hold that error was
Fischetti’s petition. Fischetti timely filed
committed, it was not error of a magnitude
a notice of appeal with the Superior Court,
to warrant vacating the conviction on our
which affirmed the judgment of the trial
habeas review.
court on June 21, 2001. On March 20,
2002, the Pennsylvania Supreme Court Fischetti placed the trial court in an
denied Fischetti’s petition for appeal. untenable position when, on the eve of
trial, he refused to continue with his then-
On May 22, 2002, Fischetti filed,
current counsel in any capacity and also
through counsel, his habeas petition in the
refused to represent himself. This action
District Court. On September 30, 2002,
was part of a pattern of uncooperative
the District Court issued an order adopting
conduct through which Fischetti
the Magistrate’s Report and
repeatedly complained about counsel and
Recommendation to dismiss Fischetti’s
sought to delay or derail his second trial.
petition and to deny a certificate of
The trial court investigated Fischetti’s
appealability. This appeal followed. We
complaints about his appointed counsel
granted a certificate of appeal on the
and determined them to be unfounded.4
following questions: (1) “whether
Fischetti nevertheless ex pressed
appellant was denied his Sixth
Amendment right to counsel when the
second trial court required appellant to
4
Indeed, the state judge specifically
concluded that his counsel Fitzgerald was
3
Fitzgerald was re-appointed as well prepared and a “well-trained, skilled
counsel on June 29, 1996. defense attorney.” (App. 32).

4
unwillingness to have his competent and counsel or to proceed alone. Had the
diligent third appointed counsel continue judge at that point instructed Fischetti to
in any capacity and sought to postpone the proceed with current counsel, that decision
aging case once again. Worse, he offered would be wholly supportable under
the judge no assurance that a fourth Morris. See also Wheat, 486 U.S. at 164.
appointment of counsel would finally But, instead, the trial judge reacted to
satisfy him. Fischetti’s resistance by ordering him to
trial pro se.
The trial judge refused to appoint
new counsel. This was understandable. Was Fischetti’s response a truly
voluntary waiver of counsel? The law in
A defendant’s right to counsel is
this Circuit indicates that it was not. In
not without limit and cannot be the
United States v. Welty, a defendant was
justification for inordinate delay or
denied new counsel and affirmatively
manipulation of the appointment system.
chose to represent himself. 674 F.2d at
United States v. McFadden, 630 F.2d 963,
187. We reversed the conviction because
972 (3d Cir. 1980). There is ample
the defendant was not adequately apprised
precedent for the proposition that the need
of the consequences of self-representation,
for an orderly and expeditious trial may
and thus his waiver of the right to counsel
require that a defendant proceed with
was not valid. Id. at 194. If it is improper
counsel not of his preference. See, e.g.,
to have a defendant proceed alone when
Wheat v. United States, 486 U.S. 153, 164
there is a flawed waiver, it follows that it
(1988); Morris v. Slappy, 461 U.S. 1, 12
is improper to have him do so when he has
(1983); Fuller v. Diesslin, 868 F.2d 604,
not voluntarily waived at all.
607 (1989). Faced with this situation,
therefore, we have previously held that if The threshold question in
the court has “made the appropriate determining whether a defendant can
inquiries and has determined that a proceed pro se is whether he wants to do
continuance for substitution of counsel is so. Only after he has “clearly and
not warranted, the court can then properly unambiguously” asserted the right to self-
insist that the defendant choose between representation does the court move to the
representation by his existing counsel and next question—whether the choice is
proceeding pro se.” United States v. “‘intelligent and competent.’” United
Welty, 674 F.2d 185, 188 (3d Cir. 1982). States v. Stubbs, 281 F.3d 109, 118 (3d
For these reasons, the trial judge properly Cir. 2002) (quoting Buhl v. Cooksey, 233
rejected Fischetti’s demand for another F.3d 783, 799 (3d Cir. 2000)). For this
appointment of counsel. reason, the State’s vigorous contention
that the trial judge reasonably determined
The problem lies with what
that Fischetti’s “waiver” was knowing is
happened next. Fischetti refused to
beside the point. In this case, the trial
choose either to proceed with current
judge’s ruling facially acknowledges that

5
F i s c h e t t i rej e c t e d — ra t h e r th a n no necessity to mandate that Fischetti
asserted—the desire to represent himself. forfeit his attorney. By the same token,
Thus, there was no voluntary waiver in the there is no record that the trial court
first place. formally warned Fischetti that his refusal
to proceed with his appointed counsel
Was there another basis, then, to
would result in losing counsel altogether.
deny Fischetti counsel? To be sure, there
Moreover, Fischetti’s failure to choose
are occasions when a defendant can be
between counsel and pro se representation
forced to go to trial without an
does not seem to be “conduct” of the sort
attorney—when a defendant has forfeited
that impliedly waived his attorney. To the
his right to counsel or impliedly “waived
contrary, this “conduct” was literally
it by conduct.” In United States v.
ambivalent between the two choices.
Goldberg, 67 F.3d 1092 (3d Cir. 1995),
Thus, implied waiver is simply inapposite.
we explained that a defendant could lose
the right to counsel by physically Where, as here, there was no harm
assaulting his attorney or (in the case of a or delay to the judicial process in having
financially able defendant) refusing to Fischetti’s court-appointed counsel
retain any counsel in the first place. We continue representation, forfeiture was not
apply this rule of forfeiture not to punish appropriate under our precedent. And
defendants but to preserve the ability of where the defendant chooses neither
courts to conduct trials. Similarly, under attorney representation nor self-
Goldberg, even less serious dilatory representation, the default position for the
behavior, if preceded by an explicit court should be to mandate attorney
warning, can be treated as an implied representation. After all, while there are
waiver of counsel by misconduct. Id. at competing fundamental rights to counsel
1100. Both forfeiture and implied waiver and to self-representation, “it is
are conceptually distinct from actual representation by counsel that is the
waiver. Id. at 1099-1101. standard, not the exception.” Martinez v.
Court of Appeal, 528 U.S. 152, 161
The circumstances here, however,
(2000).
did not meet the standards necessary to
establish that Fischetti actually forfeited We emphasize that our ruling does
the right to an attorney or waived his not mean that a trial judge is powerless in
attorney by misconduct. There is no the face of a difficult defendant who wants
evidence that Fischetti assaulted his neither to proceed with current counsel
current attorney, or made it impossible for nor to continue on his own. If the
any counsel to appear, or even that the appointment of new counsel is not
attorney wished to be relieved. Since warranted, it can be denied. If a defendant
there was an attorney in place, there was refuses to proceed with counsel and also
no cost to the trial court in simply ordering refuses to proceed pro se, the proper
that he continue. Accordingly, there was course is to move forward with existing

6
counsel. This approach preserves the right must contradict “clearly established”
to counsel—which is the presumptive decisions of the United States Supreme
default position—while allowing the court Court alone. Id. This can happen in one
to manage the case. of two ways. Either the state court ignores
or misapprehends clear precedent or it
B.
“confronts a set of facts that are materially
If this case were a direct appeal, the indistinguishable from a decision of [the
preceding reasoning would necessitate a Supreme] Court and nevertheless arrives
reversal, for an erroneous denial of at a result different from [Supreme Court]
counsel cannot be harmless. Stubbs, 281 precedent.” Id. at 406. In this regard, the
F.3d at 121. Supreme Court has explicitly held that the
“state court need not even be aware of our
But this case arises under 28 U.S.C.
precedents, ‘so long as neither the
§ 2254, and we do not review for simple
reasoning nor the result of the state-court
error. The distinction in standard of
decision contradicts them.’” Mitchell v.
review makes all the difference.
Esparza, 124 S. Ct. 7, 10 (2003) (per
Under provisions of the curiam) (quoting Early v. Packer, 537 U.S.
Antiterrorism and Effective Death Penalty 3, 8 (2002) (per curiam)).
Act (AEDPA), 28 U.S.C. § 2254(d)(1),
Second, an unreasonab le
the writ may issue after a state conviction
application of Supreme Court precedent
only if the state court decision being
occurs when a state court applies the
challenged “was [1] contrary to, or [2]
correct rule to specific facts in an
involved an unreasonable application of,
objectively unreasonable way. Williams,
clearly established Federal law, as
529 U.S. at 409; see also Mitchell, 124 S.
determined by the Supreme Court of the
Ct. at 11. A court that unreasonably
United States.” In Williams v. Taylor, 529
extends a rule in a new context or, in the
U.S. 362 (2000), the Supreme Court
alternative, unreasonably fails to extend a
amplified on these two bases for
rule may also be deemed to unreasonably
invalidating a state conviction on habeas
apply the correct rule. Williams, 529 U.S.
review.
at 407. The Supreme Court has not fully
First, “contrary to . . . clearly fleshed out this “extension of legal
established federal law” means just principle” approach to § 2254(d)(1).
that—“‘diametrically different,’‘opposite Williams, 529 U.S. at 408-09; compare
in character or nature,’ or ‘mutually Rompilla v. Horn, 355 F.3d 233, 240 (3d
opposed.’” Id. at 405 (quoting Webster's Cir. 2004) (unreasonable application
Third New International Dictionary 495 includes unreasonable failure to extend)
(1976)). Moreover, the state court with Marshall v. Hendricks, 307 F.3d 36,
judgment must not merely be contrary to 51 & n.2 (3d Cir. 2002) (noting the
law as articulated by any federal court. It Supreme Court has not definitively

7
adopted unreasonable extension theory). Court jurisprudence addressing §
2254(d)(1) has established that
Our approach under AEDPA,
determining the “clearly established”
therefore, requires us to determine what
benchmark should be done on a case-
the clearly established Supreme Court
specific level.
decisional law was at the time petitioner’s
conviction became final. See Marshall, That requirement of particularity is
307 F.3d at 62; Moore v. Morton, 255 evident from the ruling in Williams itself.
F.3d 95, 104-05 & n.8 (3d Cir. 2001). We In discussing the “contrary to” decisional
must then analyze the challenged state law prong of the statute, the majority held
decision in light of that decisional law a state decision is contrary to a Supreme
under each of the two prongs of the Court precedent only if it contradicts the
AEDPA test. Two aspects of this analytic precedent or “if the state court confronts a
process bear special mention as the relate set of facts that are materially
to this case. indistinguishable from a decision of this
Court and nevertheless arrives at a result
The first aspect is this: When we
different from our precedent.” Williams,
look to Supreme Court precedent as a
529 U.S. at 406. This language
touchstone, we must decide the level of
establishes that under AEDPA the Court
specificity at which we decide whether the
views its precedents in their particular
state decision is contrary to, or
factual settings. The touchstone
unreasonably applies, that precedent.
precedents are not to be examined by
Obviously, if one examines Supreme
looking to broad pronouncements or
Court decisions at a broad level of
generative principles in the opinion. The
generality, the universe of state decisions
“materially indistinguishable” test
that may be contrary to those decisions
presupposes a fact-specific analysis of the
will expand. For example, it could be said
Supreme Court case law. See Moore, 255
that Faretta v. California broadly
F.3d at 107; Jermyn v. Horn, 266 F.3d
established a right to self-representation
257, 281 (3d Cir. 2001)(same).
upon a proper waiver of counsel, and that
any subsequent state court decision The “unreasonable application”
erroneously upholding a flawed waiver prong also takes as its point of departure
would be contrary to, or an unreasonable “clearly established” Supreme Court
application of, Faretta. 422 U.S. 806 precedent. Not surprisingly, therefore, in
(1975). This would plainly prove too analyzing habeas claims for unreasonable
much. See, e.g., Nelson v. Alabama, 292 application of the law, the Supreme Court
F.3d 1291, 1295-96 (11th Cir. 2002) has looked at its own baseline precedents
(holding that relying on implicit Faretta through a sharply focused lens. In Price v.
findings to allow pro se representation was Vincent, for example, the Court reviewed
not contrary to or an unreasonable a decision of the Sixth Circuit granting the
application of Faretta). Instead, Supreme writ to a defendant who alleged a violation

8
of the Double Jeopardy Clause. 538 U.S. established constitutional principle to
634 (2003). The defendant had been govern a case which is closely analogous
granted a motion for directed verdict to those which have been previously
during trial, which was entered on the considered in the prior case law.” Penry v.
docket; two days later, the judge reversed Lynaugh, 492 U.S. 302, 314 (1989)
the ruling and allowed the charge to go to (quoting Mackey v. United States, 401
the jury. Id. at 637. The Court of Appeals U.S. 667, 695 (1971) (Harlan, J.,
granted habeas relief on the ground that concurring in part and dissenting in part)).
the state ruling clearly violated the This language—“closely
Supreme Court’s decision in United States analogous”—underscores the specificity
v. Martin Linen Supply Co., 430 U.S. 564, that we must employ in reviewing whether
571 (1977), which held that double a state court has unreasonably applied
jeopardy attaches when the trial judge Supreme Court precedent. See Moore,
makes a ruling that “actually represents a 255 F.3d at 104-05 (equating the
resolution, correct or not, of some or all of definition of “old rule” under Teague with
the factual elements of the offense the definition of “clearly established” law
charged.” The Supreme Court reversed, under AEDPA).
noting that even if the state court was
We also emphasize a second aspect
wrong, it had distinguished Martin Linen
to our analysis under AEDPA. In
based on reasonable factual differences.
determining whether a state decision is an
538 U.S. at 642-43.
unreasonable application of Supreme
Indeed, in emphasizing that Court precedent, this court has taken the
Supreme Court precedents must be viewed view that “decisions of federal courts
with particularity, we note that in other below the level of the United States
contexts the Court has held that Supreme Court may be helpful to us in
application of a “clearly established” legal ascertaining the reasonableness of state
rule is examined narrowly. For example, courts’ application of clearly established
in the retroactivity context, a decision is United States Supreme Court precedent.”
viewed as the application of an established Marshall, 307 F.3d at 71 n.24; see also
“old rule” only if “dictated by precedent Moore, 255 F.3d at 104 n.8. The
existing at the time the defendant’s Supreme Court itself appears to adopt this
conviction became final.” Teague v. approach, since it has pointed to decisions
Lane, 489 U.S. 288, 301 (1989) of federal and state appeals courts as
(plurality); see also Beard v. Banks, 124 S. evidence that an interpretation of Supreme
Ct. 2504, 2509 (2004) (precedent must Court precedent was not objectively
“compel,” not merely “support[]” the unreasonable. See Price, 538 U.S. at 643
decision to fall within old rule). And the & n.2. However, we emphasize that cases
application of a rule is dictated by not decided by the Supreme Court do not
precedent only if it applies “a well- serve as the legal benchmark against

9
which to compare the state decision. At on forfeiture of the right to counsel.
the end of the day, AEDPA “confine[s]
The Supreme Court has on
the authorities on which federal courts
numerous occasions made clear that the
may rely” in a habeas case to Supreme
right to counsel can only be waived
Court decisions. Lewis v. Johnson, 359
voluntarily and knowingly. McKaskle v.
F.3d 646, 652 (3d Cir. 2004); see also
Wiggins, 465 U.S. 168, 173 (1984);
Dunn v. Colleran, 247 F.3d 450, 457 (3d
Faretta, 422 U.S. 806, 835 (1975); Adams
Cir. 2001); Hameen v. Delaware, 212 F.3d
v. United States ex rel. McCann, 317 U.S.
226, 234-43 (3d Cir. 2000) (analyzing
269, 279 (1942). But the Court’s
Supreme Court cases).
established precedent in this area has not
C. expressly dealt with the matter of
forfeiture of counsel, which is the exact
With these general principles in
issue here. As we have discussed,
mind, we review the decision of the state
forfeiture and voluntary waiver are
court that ordered Fischetti to proceed on
conceptually separate. Moreover, the
his own behalf when he declined both to
Supreme Court’s prior decisions have not
proceed with his current counsel and to
involved facts that are “materially
represent himself. The question here is
indistinguishable” from the facts
not whether the state court order was
surrounding Fischetti’s actions in this
simple error, but whether it was error that
case. See Williams, 529 U.S. at 406;
contradicted or unreasonably applied
Moore, 255 F.3d at 107. It follows that
Supreme Court precedent.
the state court ruling here was not contrary
At the outset, we must articulate the to federal law as articulated by decisions
issue presented to the state court precisely. of the Supreme Court.
This was not a circumstance in which
To be sure, the analysis undertaken
Fischetti was simply forced to go to trial
by the state court, and by the reviewing
without counsel or where he received an
state appellate court, did not discuss these
inadequate waiver hearing under Faretta.
Supreme Court precedents. That
Here, Fischetti refused to make a choice
omission, as we have seen, is not
between proceeding with current counsel
dispositive. See Mitchell, 124 S. Ct. at 10.
and proceeding pro se. Effectively, he
What is important is that the state courts
sought to defy the trial court’s denial of
certainly did not contradict or take a
his motion for yet another new counsel. In
position that was explicitly inconsistent
essence, the state court treated him not as
with any prevailing United States Supreme
if he had waived the right to his attorney
Court decisions.
but as having forfeited that right. See
Goldberg, 67 F.3d at 1101-02. We must Whether the state court
therefore examine whether there is unreasonably applied the Court’s
“clearly established” Supreme Court law precedent presents a closer question,

10
however. Undoubtedly, the Supreme proceed either with or without counsel
Court has made clear that the right to because he has been denied the particular
counsel at trial is fundamental and cannot counsel of his choice. Accordingly, none
be actually waived except voluntarily and of the precedential decisions provides a
knowingly. As the Court has observed, template that fits the facts here. Nor has
there is a “strong presumption” against the the Supreme Court expressly ruled out
waiver of the right to counsel. Patterson forfeiture of counsel. Indeed, the Supreme
v. Illinois, 487 U.S. 285, 307 (1988). Court has recognized that the parallel
And, as we have pointed out above, the rights to counsel and to self-representation
assistance of counsel, not self- cannot be manipulated to frustrate the
representation, is the presumptive orderly processes of the trial court. In
position. See Martinez, 528 U.S. at 161. Faretta, for example, the Court warned
Thus, if our role on habeas review were to that the “right of self-representation is not
determine if the state judge properly a license to abuse the dignity of the
extrapolated the general principles that can courtroom.” 422 U.S. at 834 n.46; accord
be derived from Faretta, Patterson, and McKaskle, 465 U.S. at 184.
Martinez to this different factual setting,
More importantly, the Supreme
we might disagree with the state court
Court has made clear that Sixth
ruling.
Amendment rights generally are not
That is not our role. In reviewing amenable to forfeiture. Through
the reasonableness of the state courts’ misconduct, defendants can outright
application of Supreme Court precedent, forfeit trial rights as fundamental as the
we must use as our point of departure the Sixth Amendment right to counsel. The
specific holdings of the Court’s decisions. Confrontation Clause of the Sixth
When assessing whether the state court Amendment for example, guarantees that
acted reasonably in applying or refusing to a defendant can be present in the
apply that precedent, we must be mindful courtroom throughout a criminal trial.
that the issue is whether Supreme Court The Supreme Court held in Illinois v.
law “dictated” a result in our case, Teague, Allen, 397 U.S. 337. 343 (1970), however,
489 U.S. at 301 (plurality); see Moore, that a defendant can lose that right if he is
255 F.3d at 104-05, or whether the disruptive in court after being warned by
circumstances presented here were the judge. Indeed, the court upheld
“closely analogous” to those that formed exclusion notwithstanding the availability
the basis of earlier high court decisions, of alternative coercive measures that
Penry, 492 U.S. at 314 (internal quotations might have served to discipline the
and citations omitted). misbehaving defendant. Id. at 344-46.
Likewise, in Taylor v. United States, 414
As we have observed, no Supreme
U.S. 17 (1973) (per curiam), the Court
Court case has dealt specifically with the
affirmed a decision to proceed with a trial
case of a defendant who is unwilling to

11
after a defendant failed to return after a allowing forfeiture and waiver by conduct
recess. The Court rejected the argument of counsel. We cited Illinois v. Allen as
that the absence could not be construed as approving the decision to “deprive a
a knowing waiver in the absence of an defendant of a fundamental constitutional
explicit warning that the trial would right at least where the defendant is aware
continue if he absconded. It held the trial of the consequences of his actions, but
could continue because the court’s power regardless of whether the defendant
to try a case “‘may not be defeated by affirmatively wishes to part with that
conduct of the accused that prevents the right.” Goldberg, 67 F.3d at 1101. We
trial from going forward.’” Id. at 20 revisited the forfeiture issue in United
(quoting Allen, 397 U.S. at 349 (Brennan, States v. Leggett, 162 F.3d 237 (3d Cir.
J., concurring)). 1998).5 There, a defendant physically
attacked his trial counsel at sentencing.
These decisions certainly provide a
After release from the hospital, counsel
basis to conclude, as the state judge did in
understandably sought to withdraw. The
this case, that defiant behavior by a
district court granted the application and
defendant can properly cost that defendant
“concluded that Leggett had forfeited his
some of his Sixth Amendment protections
right to counsel for the sentencing
if necessary to permit a trial to go forward
hearing.” Id. at 240. We affirmed. See
in an orderly fashion. This precedent,
also United States v. Jennings, 855 F.
therefore, cuts against a finding that the
Supp. 1427 (M.D. Pa. 1994) (assault on
trial judge unreasonably applied Supreme
appointed attorney waives counsel “by
Court case law in responding to Fischetti’s
implication”), aff’d, 61 F.3d 897 (3d Cir.
obduracy by mandating that he proceed
without counsel. Additional support for
the reasonableness of the state court’s
5
application of Supreme Court precedent is Leggett was decided four years
found in rulings of other courts, including after the state judge in our case ruled that
our own, that uphold at least limited Fischetti must proceed pro se. That fact
forfeitures of right to counsel. See Price, does not make a difference. As we have
538 U.S. at 642-43 & n.2 (relying on other discussed, we look to non-Supreme Court
decisions as indications of reasonable cases not because the state court was
interpretation); Moore, 255 F.3d at 104-05 obliged to rely on them, but as evidence of
n.8 (same). what courts would view as reasonable
interpretations of Supreme Court law. See
As we have already discussed, we Lockhart v. Fretwell, 506 U.S. 364, 372-
confronted forfeiture and waiver by 73 (1993) (holding that the Teague rules
conduct in Goldberg. While we found in limiting retroactive interpretation of the
that case an insufficient factual predicate law do not apply to changes in the law that
to apply either doctrine, we did read the would uphold, rather than reverse, a
applicable Supreme Court cases as conviction).

12
1995) (table). 260 F.3d 87 (2d Cir. 2001), the Court
entertained a § 2254 petition brought by a
Other circuits have also interpreted
defendant whose counsel was discharged
Supreme Court decisions to be consistent
before sentencing after defendant punched
with forfeiture of the right to counsel.
counsel in the ear. Although the Court of
These cases have interpreted the law to
Appeals indicated that a forfeiture based
require defendants to go to trial
on one incident might be constitutionally
unrepresented when they have failed to
unwarranted, id. at 89, it held that the state
hire counsel within a reasonable time,
courts’ decision upholding the forfeiture
United States v. Bauer, 956 F.2d 693 (7th
was neither contrary to Supreme Court
Cir. 1992); United States v. Mitchell, 777
cases nor an unreasonable application of
F.2d 248 (5th Cir. 1985), or have abused
those cases. Gilchrist concluded that the
counsel, United States v. McLeod, 53 F.3d
Supreme Court’s “recognition that other
322 (11th Cir. 1995).
important constitutional rights may be
None of these cases approves the forfeited based on serious misconduct”
specific decision made by the trial judge counsels against a finding that the state
here. But the appellate cases do establish court was unreasonable in concluding that
that the Supreme Court’s general right to the defendant had forfeited his right to
counsel decisions are reasonably read as counsel by his single act of violence. Id.
qualified by the trial court’s power to at 97. We apply the same logic in
remedy abuse of that right through reaching the result here.
forfeiture. Further, none of these cited
The state court’s mandate that
appellate cases saw in the Supreme
Fischetti proceed pro se was error, but was
Court’s precedents any clear guidance as
not contrary to, or an unreasonable
to the precise standard to be applied
application of, Supreme Court precedent.
before forfeiture can be triggered. Put
another way, the Supreme Court has not III.
fully defined when a defendant’s
Fischetti raises three other claims.
misconduct or defiance warrants a
He first claims that his Sixth Amendment
forfeiture. Our canvass of decisions of
right to effective assistance of counsel was
our own and sister courts reinforces our
violated when his counsel at the first trial
view that the state court order that
failed to argue that probable cause did not
Fischetti proceed without counsel was not
exist with regard to his arrest for burglary,
an objectively unreasonable application of
theft, and receipt of stolen property. In the
Supreme Court case law under the Sixth
alternative, he contends that appellate
Amendment. Williams, 529 U.S. at 409-
counsel was ineffective in not contesting
10, 412.
the second trial court’s failure to hold a
The Second Circuit has reached a hearing on this issue. Second, he claims
similar result. In Gilchrist v. O’Keefe, that his Sixth Amendment right to

13
effective counsel was violated when Superior Court (and throughout the
appellate counsel did not appeal the failure subsequent state proceedings) that any
of the court at the second trial to provide default on his direct appeal was the
him with certain court records and consequence of ineffective assistance or
transcripts from the first trial. Finally, the outright denial of counsel at the trial.6
Fischetti maintains that his Sixth The Superior Court rejected this excuse,
Amendment right to confront witnesses determining that the default ultimately
and right to effective assistance of counsel stemmed from Fischetti’s failure to raise
were denied because the trial court failed any of these issues at the second trial.
to conduct a preliminary hearing on the Specifically, the Court found that
unavailability of certain witnesses before Fischetti, acting pro se, did not request a
their prior testimony was read into suppression hearing regarding the arrest;
evidence at his second trial (and appellate did not perfect a request for court records;
counsel did not appeal that failure). and did not request a preliminary hearing
regarding admissibility of testimony from
The District Court rejected these
the first trial. We note that the federal
claims when adjudicating the original
law, as well as Pennsylvania law, does not
habeas petition. The District Court found
allow pro se litigants to avoid their own
that each of these contentions was
waivers on the ground that they were
procedurally barred on independent state
ineffective as “counsel.” Faretta, 422 U.S.
law grounds because they were not
at 834 n.46; Commonwealth v. Griffin,
properly presented to the state courts.
644 A.2d 1167, 1171 (Pa. 1994).
Claims barred on state procedural grounds
cannot be reviewed on habeas unless the Fischetti argues on this appeal that
“prisoner can demonstrate cause for the the District Court was incorrect to rely on
default and actual prejudice as a result of these omissions at trial as procedural
the alleged violation of federal law, or waivers because he unwillingly proceeded
demonstrate that failure to consider the pro se. Put differently, he urged in state
claim will result in a fundamental court and urges here that the trial court’s
miscarriage of justice.” Coleman v. erroneous decision to force him to
Thompson, 501 U.S. 722, 750 (1991). represent himself provides “cause” to
Cause must be “some objective factor overlook the default of all claims he did
external to the defense.” Murray v. not raise pro se at trial.7
Carrier, 477 U.S. 478, 488 (1986).
These claims were presented to the 6
Pennsylvania Superior Court on collateral Thus, the ineffective assistance
review and rejected as procedurally barred claims themselves were exhausted. See
because they were not raised on direct Murray, 477 U.S. at 489.
appeal. Presumably anticipating this 7
This was the second question on
result, Fischetti also argued before the which we granted a certificate of

14
 Attorney error that rises to the level counsel for state habeas. 501 U.S. at 755-
of ineffective assistance under the Sixth 56. The majority distinguished that fact
Amendment establishes external “cause” pattern from one in which the denial of
to overcome a procedural default. Murray, assistance of counsel occurred at a stage of
477 U.S. at 488; see also Werts v. proceedings during which the Sixth
Vaughn, 228 F.3d 178, 193 (2000). Of Amendment does apply—that is, at trial or
course, a defendant who proceeds pro se on direct appeal. Id. at 754. In the latter
voluntarily cannot assert a claim of case, because the ineffective assistance of
ineffective assistance of counsel. But counsel (and a fortiori the outright denial
here, the defendant was erroneously of counsel) violates the State’s
ordered to proceed without counsel. If constitutional obligation, the State “must
ineffective assistance of counsel is bear the cost of any resulting default and
sufficient to excuse a default, wrongful the harm to state interests that federal
outright denial of counsel must, a fortiori, habeas review entails.” Id.
also be sufficient. Indeed, the Supreme
Accordingly, we hold that the
Court observed that a total denial of
constitutionally erroneous denial of
counsel works greater unfairness than
counsel to Fischetti constitutes cause
mere ineffectiveness of counsel. Penson
sufficient to excuse his procedural default
v. Ohio, 488 U.S. 75, 88 (1988).
of the claims he raises here. Our ruling is
Logically, therefore, a waiver caused by
consistent with decisions of other circuits.
an improper outright denial of the Sixth
Shayesteh v. City of S. Salt Lake, 217
Amendment right to counsel constitutes
F.3d 1281, 1283 (10th Cir. 2000);
“cause.”
Restrepo v. Kelly, 178 F.3d 634, 640-41
The Supreme Court decision in (2d Cir. 1999).
Coleman v. Thompson itself is instructive
We pause to address an obvious
in this regard. The Court held there that
question: How can the denial of counsel
ineffective assistance of counsel on appeal
suffice to establish cause to overcome a
from a denial of state habeas review was
procedural default when we have already
not cause for a procedural default because
ruled that it is not sufficient as a stand-
there was no Sixth Amendment right to
alone claim to warrant reversal of the
underlying convictions? The answer lies in
appealability: “whether the remaining the differing standard for evaluating
three claims in this application should constitutional error as a substantive basis
properly be considered defaulted, as of relief and as a cause to avoid default of
procedural mistakes during the second other claims. As we have discussed,
trial, when appellant acted as his own AEDPA authorizes the writ of habeas
counsel, appear to be the basis of the corpus to be granted only for clearly
procedural default for all three remaining erroneous applications of Supreme Court
claims.” case decisions. The constitutional error

15
here does not meet this threshold. But Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
AEDPA does not establish a statutory high
Fischetti’s first claim is that counsel
hurdle for the issue of cause. And the
at his first trial rendered ineffective
Supreme Court’s pronouncement in
assistance when he failed to challenge the
Coleman applied no AEDPA-style
validity of Fischetti’s arrest and that the
“unreasonable application” test in
court failed to conduct an adequate
determining the existence of cause.
suppression hearing. This claim is refuted
Rather, it made its determination of cause,
by the record. As Fischetti’s own
or lack of cause, based on a
submission to the District Court asserts,
straightforward analysis whether the
the first trial court did hold a suppression
denial of counsel was “an independent
hearing and upheld the validity of
constitutional violation.” 501 U.S. at 755.
Fischetti’s arrest. Memorandum in
We do so here as well. Our analysis in
Support for Writ of Habeas Corpus under
Part II has established that the state court
28 U.S.S.C. § 2254 at 23-24. Since the
committed constitutional error in forcing
validity of the arrest was actually
Fischetti to go to trial himself, but that the
adjudicated after a hearing, the allegations
error was not sufficiently unreasonable
that counsel failed to raise the issue at trial
under Supreme Court precedent to
or to secure a hearing are utterly without
constitute an independent basis of habeas
merit. And once the first trial court
relief under the threshold requirements of
adjudicated the issue, the law of the case
§ 2254(d)(1). The constitutional error
doctrine eliminated any requirement that
suffices, however, to establish cause for
the second trial court reconsider the issue.
the procedural default.
Waldorf v. Shuta, 142 F.3d 601, 616 n.4
Of course, once the petitioner has (3d Cir. 1998). Therefore, Fischetti has
established cause, he must show “‘actual not even established error, let alone
prejudice’ resulting from the errors of prejudice.
which he complains.” United States v.
Fischetti’s next claim, that appellate
Frady, 456 U.S. 152, 168 (1982). Such
counsel was ineffective in not appealing
alleged errors must have “worked to his
the state court’s failure to provide him
actual and substantial disadvantage,
with documents from his previous trial,
infecting his entire trial with error of
including court records and transcripts of
constitutional dimensions.” Id. at 170;
prior proceedings, also fails. Fischetti
Werts, 228 F.3d at 193. In the context of
admits that the second trial court ordered
a substantive ineffective assistance claim,
Fischetti’s second counsel to provide him
this Court has stated that prejudice occurs
with records but complains there was
where “there is a reasonable probability
“nothing in the docket or record to evince
that, but for counsel's deficient
that the court ever entered an order
performance, the result of the proceeding
directing that all court records in [his] case
would have been different.” Sistrunk v.
be turned over to him.” Appellant Br. at

16
27. Fischetti has failed to establish what 1369 (2004). That proposition was
records he did not receive, and what established by the Supreme Court many
possible effect his failure to receive these years ago, well before the trial of this case.
records had on his second trial. He has See Barber v. Page, 390 U.S. 719, 722-25
therefore failed to establish prejudice for (1968). Admitting the prior testimony
this claim. here without a determination of
unavailability was contrary to Barber.
Fischetti’s final claim centers on
the second trial court’s decision to allow Was this Confrontation Clause
some witness testimony from the first trial violation prejudicial? Although Fischetti
to be admitted into evidence at the second was convicted in his second trial of thirty-
trial without a preliminary determination eight counts of burglary, the record
regarding the unavailability of those discloses that he was sentenced only on
witnesses. A number of burglary victims two of those counts. The trial court
testified at the first trial, held some sentenced Fischetti to ten to twenty years
fourteen years earlier than the second. for the burglary of the home of Joseph
According to the record, some victims’ Kostrub, a victim who did testify at the
testimony from the first trial was admitted second trial. The trial court then added a
in the second trial without any showing consecutive ten to twenty year sentence
that they were unavailable. Fischetti for the burglary of the home of Frieda
argues that his Sixth Amendment rights Barnes. However, Frieda Barnes did not
were violated because the second trial testify at the second trial; her testimony
court’s failure to hold a preliminary was read into the record before the jury.
hearing establishing unavailability
Since each of these burglaries was
violated his right to confront witnesses.
distinct, the sentencing on the Kostrub
He contends, by the same token, that his
burglary could not have been affected by
appellate counsel’s failure to contest the
any error in admitting testimony of victims
admission of this prior testimony on
on separate burglaries.8 That is not so
appeal was ineffective assistance of
with respect to the Barnes burglary,
counsel.
however. Absent a determination that Ms.
The second trial court’s failure to Barnes was not available to appear, it was
hold a preliminary hearing (and appellate not proper for Ms. Barnes’s testimony to
counsel’s failure to appeal this point) were be read to the jury at the trial.
constitutional error. As the Supreme
Court has recently reminded us, under the
Sixth Amendment’s Confrontation Clause, 8
Moreover, since at least nine
testimony from an earlier sworn victims did testify at the second trial, the
proceeding may not be admitted at a additional burglary counts without
criminal trial if the witness is available. witnesses were akin to “bringing coals to
Crawford v. Washington, 124 S. Ct. 1354, Newcastle.”

17
 Accordingly, we will reverse and
remand the judgment of the District Court
only with respect to Fischetti’s sentence
on the Barnes burglary count. On remand,
the District Court may hold a hearing to
determine whether Ms. Barnes was
unavailable at the time of Fischetti’s trial.
If she was, then any error will not have
been prejudicial after all. If the District
Court cannot determine that Ms. Barnes
was unavailable, it should consider if the
error was prejudicial in light of all the
other evidence. If the District Court finds
that there was prejudice on this count of
the conviction, it should grant the writ as
to the Barnes count only with instructions
that the state court discharge Fischetti on
completion of his sentence on the Kostrub
count unless the state court either (1)
sentences Fischetti under another count
for which there was a victim who testified
at trial or (2) retries Fischetti on the
Barnes count.

18