PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-4105
_______________
MELVIN KEITH RICHARDSON,
Appellant
v.
SUPERINTENDENT COAL TOWNSHIP SCI;
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:07-cv-02065)
District Judge: Honorable Petrese B. Tucker
_______________
Argued April 26, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
(Filed: October 2, 2018)
_______________
Leigh M. Skipper, Chief Federal Defender
Brett G. Sweitzer, Assistant Federal Defender &
Chief of Appeals
Keith M. Donoghue, Assistant Federal Defender [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Josh Shapiro, Attorney General
Jennifer C. Selber, Director, Criminal Law Division
James P. Barker, Chief Deputy Attorney General
Jennifer A. Buck, Senior Deputy Attorney General [AR-
GUED]
Office of Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square
16th Floor
Harrisburg, PA 17120
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Melvin Richardson was denied counsel for part of his state-
court sentencing. But neither his post-sentencing lawyer nor
his state-habeas lawyer challenged that denial of counsel. Now,
2
on federal habeas, he seeks to challenge his post-sentencing
lawyer’s ineffectiveness.
To do so, he has to overcome both lawyers’ failures. He
must attack his post-sentencing lawyer’s failure to raise the de-
nial of counsel as itself a denial of effective counsel. But he
can do that only if he had a right to counsel at the post-sentenc-
ing stage. And, before attacking his post-sentencing counsel,
he must attack his post-conviction-relief (state-habeas) law-
yer’s failure under Martinez v. Ryan, 566 U.S. 1, 9, 17 (2012).
But he can do that only if his post-sentencing lawyer was acting
as trial counsel, rather than appellate counsel.
We announce two holdings today: First, in Pennsylvania
state court, the post-sentencing-motions stage is a critical stage
at which a defendant is entitled to the effective assistance of
counsel. Richardson was denied that right because his post-
sentencing lawyer was ineffective.
Second, the line dividing trial from appeal falls naturally at
the notice of appeal. Post-sentencing motions precede the no-
tice of appeal, so they fall on the trial side of the line. Thus,
when a state-habeas lawyer fails to raise a post-sentencing law-
yer’s ineffectiveness, the prisoner may raise that issue for the
first time in his federal habeas petition. So Richardson’s inef-
fective-assistance-of-counsel claim is properly before us, and
it is meritorious. We will thus remand for the District Court to
grant the writ of habeas corpus and order a new sentencing
hearing.
3
I. BACKGROUND
A. Pennsylvania State Court
In 2003, Richardson and his son burgled two empty homes
and fled from police. During a high-speed car chase, he
rammed into a police car and crashed into a utility pole. He was
prosecuted in the Court of Common Pleas of Chester County,
Pennsylvania. A jury convicted him of burglary, criminal con-
spiracy, theft, aggravated assault, resisting arrest, and flight
from a police officer.
Mid-sentencing, Richardson decided that he was dissatis-
fied with his lawyer and sought to fire him. The sentencing
judge treated Richardson’s request as waiving his right to
counsel. But the judge did not, as the Sixth Amendment re-
quires, question Richardson to ensure that his waiver was
knowing and voluntary. And Richardson’s post-sentencing and
state-habeas lawyers both overlooked this error.
1. Joseph Green, Jr. (Trial and First Day of Sentencing).
Richardson hired Joseph Green, Jr., as his lawyer for trial and
sentencing. His sentencing took two days. On the first day,
Green asked the court to schedule a psychological evaluation
and postpone the sentencing hearing. The judge agreed and
they reconvened a month later.
At the start of the second day, Green told the court that
Richardson had asked him to withdraw as counsel. The prose-
cution objected to Green’s last-minute withdrawal. Richardson
replied that he “c[ould] represent [him]self” and that he “fe[lt]
that Mr. Green d[id]n’t have [his] best interests at heart.” App.
305.
4
The judge asked Richardson no questions about discharg-
ing Green. He simply observed: “You have competent counsel,
and you will be foolish to terminate his services when he’s pre-
pared to proceed.” App. 310. The judge then gave an ambigu-
ous instruction: “I’m going to permit Mr. Green to leave, if he
wants to leave, or to stay and stand by. But I’m going to pro-
ceed to sentence you today.” App. 311. At the prosecution’s
suggestion, the judge purported to “keep [Green] here for now
to protect your appellate rights at least.” App. 312.
Green later testified that he “d[id]n’t know if [the judge
had] granted the motion for leave to withdraw or not. . . . I was
present, but I did not conduct [the second day of sentencing].
The extent to which someone or another concludes that I was
representing Mr. Richardson is up to them to decide.” App.
222. The sentencing transcript gives no hint that Green said or
did anything further to protect Richardson’s rights.
2. Pro Se (Second Day of Sentencing). The sentencing con-
tinued without any more participation by Green. Richardson
spoke at length to the court, submitted letters and certificates
from his employers, and called his fiancée to testify. The judge
reviewed this new information, as well as Green’s earlier sub-
missions, and sentenced Richardson to 17½ to 39 years’ im-
prisonment followed by 10 years’ probation.
3. Christian Hoey (Post-Sentencing Motions and Direct
Appeal). The state court then appointed Christian Hoey to rep-
resent Richardson. At that stage, Hoey could file a post-sen-
tencing motion to reconsider Richardson’s sentence and then
an appeal. Pa. R. Crim. P. 720(A), (B).
5
Hoey never challenged the sentencing judge’s failure to
conduct a colloquy before letting Richardson proceed pro se.
He did move to reconsider Richardson’s sentence on other
grounds, but the sentencing judge denied that motion. Hoey
then appealed the sentence, challenging it as excessive. But the
Superior Court affirmed.
4. Robert Brendza (State Habeas/PCRA). Richardson then
filed a pro se state-habeas petition under Pennsylvania’s Post
Conviction Relief Act (PCRA). Richardson’s handwritten pe-
tition and typed amendment expressly raised two right-to-
counsel claims.
First, “[t]he trial Judge erred when he did not secure coun-
sel for the defendant during his sentencing, [d]enying [d]efend-
ant’s sixth amendment right to [c]ounsel.” App. 387. Richard-
son argued that, before letting a defendant represent himself, a
“judge must conduct a penetrating and comprehensive inquiry
of the defendant to ascertain whether he understands the nature
of the charges against him, the permissible range of sentences
to which he is exposed, the possible defenses to the charges
and all the circumstances.” App. 399. But “[t]here was never
any inquiry into whether the defendant was knowingly and in-
telligently waiving his right to counsel.” Id.
Second, Richardson asserted that both his trial and appel-
late counsel had been ineffective, the latter by not raising argu-
able claims. App. 387. Richardson did not list the claims that
Hoey should have raised, including the denial of counsel at
sentencing.
6
The state-habeas court appointed Robert Brendza to repre-
sent Richardson. It also returned Richardson’s original and
amended petition to him, saying that “whatever you needed to
say needed to be raised by your attorney.” App. 410. The
court’s instruction comported with Pennsylvania law, which
tells courts not to consider pro se pleadings filed by parties who
are represented by counsel (so-called “hybrid representation”).
Commonwealth v. Reid, 642 A.2d 453, 462 (Pa. 1994); Com-
monwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993).
Brendza abandoned Richardson’s sentencing-counsel
claim. Instead, he argued that Richardson’s trial and appellate
counsel were ineffective for not pursuing an evidentiary issue.
But Richardson persisted, and at a hearing the state-habeas
court let Richardson articulate his claims of ineffective assis-
tance of trial and appellate counsel and “judicial improprieties
during [his] sentencing.” App. 412-13. At the court’s request,
Brendza submitted a letter explaining why he thought Richard-
son’s sentencing-counsel claim was meritless. App. 457.
The state-habeas court denied the petition, rejecting Bren-
dza’s claim as meritless. In keeping with Pennsylvania’s ban
on hybrid representation, the court credited Brendza’s letter re-
jecting Richardson’s separate arguments, but did not discuss
the sentencing court’s failure to question Richardson or the re-
lated ineffective-assistance claim. The Superior Court af-
firmed, and the Supreme Court of Pennsylvania denied leave
to appeal.
7
B. Federal Habeas
1. Federal Habeas Petition. Next, Richardson filed a ha-
beas petition pro se in federal court. He claimed that “Green
was ineffective for abandoning [him] during the sentencing
phase.” App. 54 (Claim I). He also claimed that “[t]he trial
court erred by not performing an in depth on the record collo-
quy when petitioner released his retained counsel during sen-
tencing.” Id. (Claim J). And he claimed that “[a]ppellate coun-
sel Hoey was ineffective for not performing an independent in-
vestigation into the trial record to identify meritable issues for
appeal and not briefing them to the court.” Id. (Claim M). He
made the same claim against Brendza for not independently
looking for and briefing meritorious issues on state habeas. Id.
(Claim N).
The magistrate judge recommended denying all claims.
The District Court agreed and dismissed the habeas petition.
We denied a certificate of appealability.
2. Rule 60(b) Motion. Richardson renewed these claims in
a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b). He argued that in Pennsylvania, defendants
cannot raise ineffective-assistance-of-counsel claims until
state habeas, when there is no constitutional right to effective
counsel. So he requested an evidentiary hearing to develop a
record on his Sixth Amendment claims.
The District Court again rejected Richardson’s arguments,
and we again denied his request for a certificate of appealabil-
ity. But the U.S. Supreme Court granted certiorari, vacated,
and remanded for further consideration in light of Martinez.
8
On remand, the District Court held an evidentiary hearing.
The three state-court lawyers relevant to this appeal all testi-
fied. As for sentencing, Green testified that he was unsure if
the sentencing judge had granted his motion to withdraw from
the case. As for post-sentencing motions, Hoey testified that he
had reviewed the record and found no errors worthy of appeal.
He also testified that he did not recall the issue of the sentenc-
ing court’s discharging Green and letting Richardson proceed
pro se. As for state habeas, Brendza testified that, apart from
one evidentiary issue raised in the state-habeas petition, his re-
view of the record had found no other issues that Hoey should
have raised.
The District Court again denied Richardson’s Rule 60(b)
motion, and it is this opinion that we review here. Richardson
v. Piazza, No. 2:07-cv-2065-PBT, 2015 WL 9273135 (E.D. Pa.
Dec. 21, 2015). First, the District Court declined to entertain
Richardson’s Sixth Amendment claim that the sentencing
judge had failed to conduct a colloquy because it did not con-
strue the colloquy claim as an ineffective-assistance-of-coun-
sel claim. Id. at *3 n.5.
Second, it reasoned that Green could not have been consti-
tutionally ineffective because Richardson could not prove that
the lack of counsel prejudiced him. Because the prosecution
presented no more evidence after Green withdrew, “there was
nothing left for the trial court to do but impose its sentence.”
Id. at *15.
Third, the District Court rejected the claim against Hoey
because it reasoned that Martinez’s equitable exception does
9
not extend past trial-counsel ineffectiveness to appellate coun-
sel. Id. at *16.
Finally, it rejected the claim against Brendza. It reasoned
that there is no constitutional right to counsel, and so no right
to effective counsel, on state habeas. Id.
We granted a certificate of appealability on one issue: On
state habeas, Brendza failed to raise Hoey’s post-sentencing in-
effectiveness. Did Brendza’s failure to raise this ground for re-
lief excuse Richardson’s procedural default? If so, Richardson
may now pursue his claim that Hoey was constitutionally inef-
fective because Hoey failed to argue, in his post-sentencing
motion, that Richardson was denied his right to counsel at sen-
tencing. If not, his counsel’s procedural default bars this claim.
To answer this claim, we must resolve two subsidiary ques-
tions: Did Richardson have a Sixth Amendment right to coun-
sel for his post-sentencing motions? If so, does post-sentencing
counsel qualify as trial counsel under Martinez? The answer to
both questions is yes.
II. FEDERAL HABEAS BACKGROUND
These questions come to us by way of a federal habeas pe-
tition, and for the first time in this case, having gone un-
addressed at each stage below. Generally, when a litigant has
failed to present his claims to the state court, the procedural-
default doctrine bars us from reviewing unpreserved claims.
But there are exceptions to this rule.
10
A. Procedural default
Federal habeas corpus is a backstop. It lets federal courts
review the merits of federal claims in state criminal cases. But
federal courts do not sit to review state law. So federal courts
will not review federal claims when the state court’s decisions
are supported by a state-law reason, an “independent and ade-
quate state ground[ ] .” Coleman v. Thompson, 501 U.S. 722,
729 (1991).
One such ground is a violation of the state’s procedural
rules. The federal habeas statute requires state prisoners to ex-
haust their state remedies before pursuing federal habeas relief.
28 U.S.C. § 2254(b)(1). So when the state court denies a claim
because the prisoner failed to comply with a procedural rule,
that procedural default normally bars federal courts from re-
hearing the claim. Harrington v. Richter, 562 U.S. 86, 103
(2011).
But a federal habeas court may excuse a prisoner’s proce-
dural default if the prisoner can show both cause for the default
and resulting prejudice. Wainwright v. Sykes, 433 U.S. 72, 87
(1977). To show cause, he must explain what prevented him
from timely raising the defaulted claim.
Ineffective assistance of counsel is one such cause: an “ob-
jective factor external to the defense” that can excuse proce-
dural default. Murray v. Carrier, 477 U.S. 478, 488 (1986).
When the state prosecutes, convicts, and imprisons a defend-
ant, it must ensure that the defendant “ha[s] the Assistance of
Counsel for his defence.” U.S. Const. amend. VI. If the state
11
provides no lawyer or an ineffective one, it violates that obli-
gation. No state may “conduct trials at which persons who face
incarceration must defend themselves without adequate legal
assistance.” Murray, 477 U.S. at 488. If the state violates this
rule, its violation is cause to excuse the defendant’s procedural
default.
B. Layers of Ineffectiveness
1. Ineffective lawyers challenging ineffective lawyers.
Sometimes, there are several layers of ineffective lawyering.
But when a prisoner has multiple opportunities to challenge an
error, each time he fails to do so is a procedural default. And
each default must be excused before we will review the merits
of his claim. See Edwards v. Carpenter, 529 U.S. 446, 451-52
(2000).
For Richardson, this means that he must first show that
Brendza’s failure to raise Hoey’s ineffectiveness was itself in-
effective, thus excusing the default on state habeas. Only then
can he go on to show that Hoey’s failure to challenge the denial
of counsel at sentencing violated the Sixth Amendment.
One twist complicates this labyrinth even more. Pennsylva-
nia instructs inmates to bring ineffective-assistance-of-counsel
claims on state habeas, not on direct appeal. Grant, 813 A.2d
at 737-38. That is because a habeas court is better able to de-
velop the record needed to assess counsel’s performance and
prejudice. Id. at 737. But on state-habeas review, there is no
Sixth Amendment right to counsel. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). So even if a state-habeas petitioner has
12
an ineffective lawyer, or no lawyer at all, the state has not vio-
lated the Sixth Amendment.
If not remedied, this would set up a Catch-22: When the
prisoner eventually filed a federal habeas petition, he would be
told that he could not rely on his state-habeas lawyer’s bad law-
yering to excuse that procedural default. And that procedural
default would then prevent our review of the effectiveness of
trial counsel. Thus, “no court [would] review the prisoner’s
claims.” Martinez, 566 U.S. at 10-11.
Here, at the second half of sentencing, Richardson had no
lawyer. After sentencing, Hoey did not challenge the sentenc-
ing judge’s failure to question Richardson before letting him
proceed pro se. Direct appeal is not the proper forum to chal-
lenge Hoey’s ineffectiveness in Pennsylvania, so no state court
would review these claims until state habeas. On state habeas,
Brendza rebuffed Richardson’s own efforts to raise these
claims. If these failures procedurally barred his claims on fed-
eral habeas, no court would ever review them.
2. Martinez’s equitable exception to procedural default. To
prevent this outcome and preserve claims of trial-counsel inef-
fectiveness, the Supreme Court carved out a “narrow excep-
tion” to procedural default. Id. at 9. Martinez permits prisoners
to bring their claims of ineffective assistance of trial counsel
on federal habeas even if their state-habeas counsel failed to
raise that claim. Id. So even though the right to counsel does
not extend to state-habeas proceedings, the lack of effective
counsel there does not prevent prisoners from later raising the
ineffectiveness of their trial counsel.
13
Martinez’s equitable exception applies to states that require
prisoners to await state habeas to raise ineffective-assistance
claims. Id. at 17. It also applies to states, like Pennsylvania,
whose procedures do not strictly bar earlier review but typi-
cally do not afford an opportunity to raise ineffective-assis-
tance claims until state habeas. Trevino v. Thaler, 569 U.S.
413, 429 (2013).
3. The line between trial and appeal. By its terms, Martinez
limited its equitable exception to prisoners challenging the in-
effectiveness of their trial counsel. 566 U.S. at 17. The Su-
preme Court later declined to extend Martinez’s exception to
claims of ineffective assistance of appellate counsel. Davila v.
Davis, 137 S. Ct. 2058, 2065 (2017).
Davila distinguished trial-counsel ineffectiveness from ap-
pellate-counsel ineffectiveness on two main grounds. First, tri-
als are the heart of our criminal-justice system. Criminal trials,
unlike appeals, are twice guaranteed by the Constitution. Id. at
2066 (citing U.S. Const. art. III, § 2 & amend. VI). At trial, “the
stakes for the defendant are highest” and “the trial judge or jury
makes factual findings that nearly always receive deference on
appeal and collateral review.” Id.
Second, the Court expected that the “number of meritorious
[ineffective-assistance-of-appellate-counsel] cases [would be]
infinitesimally small.” Id. at 2070 (internal quotation marks
omitted). If appellate counsel ineffectively failed to raise an ar-
gument that had been preserved for appeal, then the trial court
would have necessarily already addressed the alleged error, en-
suring that at least one court considered the claim on the merits.
Id. at 2067. And if the error had not been preserved for appeal,
14
the appeal would ordinarily fail anyway. Id. So it would be
hard to show on habeas that appellate counsel’s failure to raise
an unpreserved argument influenced the outcome.
In sum, Martinez lets prisoners who challenge the ineffec-
tive assistance of their trial counsel on federal habeas excuse a
procedural default by their state-habeas counsel. But prisoners
who want to challenge the ineffectiveness of their appellate
counsel on federal habeas cannot turn to Martinez. The initial
question presented here is whether post-sentencing counsel
counts as trial or appellate counsel under Martinez.
III. MARTINEZ ’S EQUITABLE EXCEPTION ENDS AT THE
NOTICE OF APPEAL
Trial courts impose sentences and hear post-sentencing mo-
tions before the notice of appeal takes effect. Are these actions,
after the trial or plea but before the appeal, better categorized
as the province of trial counsel or appellate counsel? We hold
that the boundary between trial and appellate counsel falls at
the effective date of the notice of appeal. So Martinez’s equi-
table exception to procedural default extends to post-sentenc-
ing counsel.
The notice of appeal marks the traditional line between trial
and appellate review. In federal court, “[t]he filing of a notice
of appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the ap-
peal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982).
15
So too in Pennsylvania. “[T]he general rule [is] that the fil-
ing of a notice of appeal divests the trial court of jurisdiction.”
Commonwealth v. Cooper, 27 A.3d 994, 1001 (Pa. 2011).
Thus, defendants may not file notices of appeal while their
post-sentencing motions are still pending. Pa. R. Crim. P. 720
cmt. Timing; cf. Cooper, 27 A.3d at 1004-08 (recognizing two
exceptional circumstances that can delay the effective date of
the notice of appeal, neither of which is relevant here).
The notice of appeal thus moves a proceeding from one
court to another. Counsel direct their arguments to the appel-
late court, not the trial court. Their goal is not to change the
trial judge’s mind, but to persuade the appellate panel to over-
turn the lower court’s decision. And counsel no longer build
the record but parse it, crafting legal arguments that are limited
by objections made below.
Sentencing and post-sentencing proceedings also differ cat-
egorically from appeals. Counsel direct sentencing and post-
sentencing arguments to the same trial court, usually to the
same judge. Counsel may also develop the record by proffering
new evidence, which the trial court may hear at an evidentiary
hearing. See Commonwealth v. Perrin, 108 A.3d 50, 54 (Pa.
Super. Ct. 2015); see also id. at 51 (explaining that newly dis-
covered evidence on appeal “must be raised promptly . . . and
should include a request for a remand to the trial judge” (quot-
ing Pa. R. Crim. P. 720 cmt. Miscellaneous)).
The state, however, asks us to draw the line when the trial
court orally pronounces the defendant’s sentence. It argues that
this is when the error-correcting stage begins. But it cites no
authority for drawing the line then. And doing so would make
16
little sense. To begin, the defendant’s sentence is not yet fixed.
“[U]ntil the trial court disposes of the [post-sentencing] mo-
tion” or the time for doing so passes, there is not yet a final
judgment. Commonwealth v. Borrero, 692 A.2d 158, 159 &
n.4 (Pa. Super. Ct. 1997). Defendants can still challenge their
verdicts and sentences, and the state can still seek to modify
the sentence. Pa. R. Crim. P. 720(B)(1)(a), 721. So the bound-
ary between trial and appellate counsel naturally falls not at the
oral sentence, but at the notice of appeal.
Drawing the line at the pronouncement of sentence would
also prevent any court from reviewing meritorious claims like
Richardson’s. Many states do not entertain ineffective-assis-
tance claims on direct appeal. And since defendants do not
have a right to effective assistance on habeas, the state’s line
would prevent state and federal courts from ever looking at
meritorious ineffective-assistance-of-post-sentencing-counsel
claims.
That is the same concern that animated Martinez’s equita-
ble exception for trial counsel. So under Martinez’s reasoning
about the availability of review, we draw the line between trial
and appeal at the time of an effective notice of appeal.
Because post-sentencing motions fall before the notice of
appeal, Hoey qualifies as trial counsel under Martinez. So
Richardson may pursue Martinez’s equitable exception for his
claim that Hoey was ineffective.
17
IV. MARTINEZ’S EXCEPTION APPLIES HERE
Martinez’s exception can excuse Richardson’s procedural
default of his claim that his post-sentencing counsel was inef-
fective—but only if he shows three things. To qualify for Mar-
tinez’s exception, a habeas petitioner must show (1) that the
procedural default was caused by either the lack of counsel or
ineffective counsel on post-conviction review; (2) that this lack
or ineffectiveness of counsel was in the first collateral proceed-
ing when the claim could have been heard; and (3) that the un-
derlying claim of ineffective assistance of trial counsel is
“ ‘substantial.’ ” Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014)
(quoting Martinez, 566 U.S. at 14). Richardson satisfies all
three.
A. Post-conviction counsel’s ineffectiveness caused the
procedural default
Brendza refused to pursue Richardson’s claim that Hoey
was ineffective. By failing to do so, he was ineffective. This
first prong of Cox requires the same showing as the first prong
of Strickland v. Washington, 466 U.S. 668, 687 (1984): defi-
cient performance. Preston v. Superintendent Graterford SCI,
No. 16-3095, 2018 WL 4212055, at *7 (3d Cir. Sept. 5, 2018).
A showing of prejudice is also required, but that occurs at
Cox’s third prong, discussed below.
Brendza should have seen that the sentencing judge erred
in not conducting a colloquy and that Hoey erred in not chal-
lenging the judge’s oversight. By not raising that issue, Bren-
dza performed deficiently.
18
1. The sentencing judge failed to conduct a colloquy. The
sentencing judge did not conduct a colloquy before letting
Richardson waive his Sixth Amendment right to counsel at
sentencing. Defendants may waive that right only after the
court questions the defendant to ensure “that the waiver of
counsel is voluntary, knowing and intelligent.” United States
v. Salemo, 61 F.3d 214, 219 (3d Cir. 1995), superseded in ir-
relevant part by rule as recognized in United States v. Turner,
677 F.3d 570, 578 (3d Cir. 2012). The colloquy need not be a
“rote dialogue” nor “as exhaustive and searching as a similar
inquiry before the conclusion of trial.” Id. at 219-20. But it
must be “a searching inquiry sufficient to satisfy [the judge]
that the defendant’s waiver was understanding and voluntary.”
United States v. Welty, 674 F.2d 185, 189 (3d Cir. 1982).
Here, the sentencing judge asked no questions at all. He
merely admonished Richardson that he was “foolish to termi-
nate [Green’s] services.” App. 310. The failure to conduct any
colloquy was a legal issue that Hoey should have raised in his
post-sentencing motion.
2. Brendza’s performance was deficient. Brendza per-
formed deficiently on state habeas. Under Strickland’s first
prong, Richardson must show that his lawyer “fell below an
objective standard of reasonableness” under “prevailing pro-
fessional norms.” 466 U.S. at 688. A lawyer performs defi-
ciently when “there is simply no rational basis to believe that
counsel’s failure to argue the . . . issue on appeal was a strategic
choice.” United States v. Mannino, 212 F.3d 835, 844 (3d Cir.
2000) (citing as an example a case in which a lawyer “fail[ed]
19
to raise [an] obvious and potentially successful sentencing . . .
issue”).
As noted, the sentencing judge conducted no colloquy be-
fore letting Richardson proceed without counsel. That failure
was clear and apparent on the face of the sentencing transcript.
So was Hoey’s failure to raise that issue. Brendza’s failure to
challenge Hoey’s ineffectiveness cannot be justified as a tacti-
cal decision. Brendza testified that he had reviewed the record
and found no error, at least not in that regard. Indeed, even after
Richardson himself challenged Hoey’s ineffectiveness in his
pro se state-habeas filing, Brendza filed a letter arguing that
Richardson’s claim was meritless. Richardson had nothing to
gain and much to lose by Brendza’s disavowing his claim. By
missing this substantial, obvious issue, Brendza performed de-
ficiently.
B. Brendza was ineffective in Richardson’s first collat-
eral-review proceeding
Brendza failed to raise the issue in his PCRA (state-habeas)
petition. That was Richardson’s first collateral-review oppor-
tunity to raise the claim. So Richardson has satisfied the second
prong of Cox as well.
C. Richardson’s underlying claim of trial-counsel inef-
fectiveness is substantial
Under the final Cox prong, Richardson must show that his
underlying claim of Hoey’s ineffectiveness is “substantial.”
757 F.3d at 119 (quoting Martinez, 566 U.S. at 14). In other
words, he must show that “the claim has some merit,” as re-
quired for a certificate of appealability. Id. A claim has merit
20
so long as “reasonable jurists could debate” its merits, or it “de-
serve[s] encouragement to proceed further.” Preston, 2018 WL
4212055, at *8 (quoting Miller-El v. Cockrell, 537 U.S. 322,
336 (2003)). Though Strickland’s two-step analysis is a guide,
we must “remain mindful that the ‘substantiality’ inquiry ‘does
not require full consideration of the factual or legal bases ad-
duced in support of the claims.’ ” Id. And Richardson need
show only that his ineffective-assistance claim against Hoey,
his trial counsel, is substantial. This proof of substantiality is
also enough to show prejudice resulting from the ineffective-
ness of Brendza, his state-habeas counsel. He need not make
any additional showing of prejudice, as Strickland would re-
quire. See Workman v. Superintendent Albion SCI, No. 16-
1969, 2018 WL 4324238, at *5-6 (3d Cir. Sept. 11, 2018).
So substantiality is a notably lower standard than the proof
of prejudice required by Strickland’s second prong. Id. at *5.
In a case with a less-developed factual record, a petitioner
could qualify for the Martinez exception and possibly an evi-
dentiary hearing even if he did not yet have enough evidence
to prove prejudice under Strickland.
Here, Richardson’s underlying ineffective-assistance claim
is substantial. It is more than arguable that he had a right to
effective post-sentencing counsel. (In the next part, we con-
clude that he did indeed have that right.) And as explained
above, the sentencing judge failed to conduct a conduct a col-
loquy to ensure that Richardson’s waiver of counsel at sentenc-
ing was knowing and voluntary. That error was apparent on the
face of the record, but Hoey did not pursue it. Hoey performed
deficiently.
21
Because Hoey’s deficiency was “clearly substandard under
the first prong of Strickland, we need not concern ourselves
with the prejudice prong of Strickland in order to satisfy Mar-
tinez and excuse the procedural default.” Preston, 2018 WL
4212055, at *8 (suggesting but not deciding whether a less-
clear case of deficient performance might require more proof
of prejudice). So Richardson satisfies the third and final prong
of Cox as well.
To prevail on the merits of his habeas claim, Richardson
must go on to show that his post-sentencing counsel, Hoey,
was ineffective under the full Strickland test. But before he can
do so, he must first show that he had a constitutional right to
post-sentencing counsel at all.
V. RICHARDSON HAD A RIGHT TO COUNSEL AT THE POST-
SENTENCING STAGE
Richardson had a Sixth Amendment right to counsel post-
sentencing. That is the basis for his substantial ineffective-as-
sistance-of-post-sentencing-counsel claim. The Supreme
Court has recognized that the Sixth Amendment guarantees a
“right to counsel at all critical stages of the criminal process.”
Iowa v. Tovar, 541 U.S. 77, 80-81 (2004). That right extends
beyond trial to sentencing. Lafler v. Cooper, 566 U.S. 156, 165
(2012). But the Court recently declined to decide whether there
is a right to counsel to file a post-sentencing motion. Marshall
v. Rodgers, 569 U.S. 58, 61 (2013). And we have never ad-
dressed the issue.
22
We now hold that, in Pennsylvania state court, post-sen-
tencing motions are a critical stage under the Sixth Amend-
ment. So defendants have a right to counsel at that stage.
A. Critical stages
The Sixth Amendment guarantees a defendant “the Assis-
tance of Counsel for his defence” “[i]n all criminal prosecu-
tions.” U.S. Const. amend. VI. But the right is limited to the
critical stages of the prosecution—those when the defendant
faces “significant consequences” and “the guiding hand of
counsel” is “necessary to assure a meaningful ‘defence.’ ” Bell
v. Cone, 535 U.S. 685, 696 (2002); Powell v. Alabama, 287
U.S. 45, 69 (1932); United States v. Wade, 388 U.S. 218, 225
(1967).
Many pretrial proceedings count as critical stages, because
courts need defense counsel to ensure the reliability of trial ver-
dicts. See, e.g., Estelle v. Smith, 451 U.S. 454, 471 (1981) (pre-
trial psychiatric examination); Wade, 388 U.S. at 236-37 (pre-
trial lineup); Massiah v. United States, 377 U.S. 201, 206
(1964) (post-indictment interrogation); Hamilton v. Alabama,
368 U.S. 52, 53 (1961) (arraignment).
On the other hand, pretrial steps that do not turn on lawyerly
knowledge or skills are not critical stages. So, for instance, de-
fendants have no right to counsel when police show witnesses
photo arrays. United States v. Ash, 413 U.S. 300, 317-18
(1973). Because photo identifications involve no adversarial
confrontation or technical legal knowledge, defendants do not
need legal expertise then. Id. at 313, 318.
23
The right to counsel protects more than just trial verdicts. It
also protects plea bargaining, in part because poor bargaining
can lead to heavier sentences and deportation. Lafler, 566 U.S.
at 163-66; Missouri v. Frye, 566 U.S. 134, 143-44 (2012); Pa-
dilla v. Kentucky, 559 U.S. 356, 366 (2010). And it protects
sentencing because “ ‘any amount of [additional] jail time has
Sixth Amendment significance.’ ” Lafler, 566 U.S. at 165
(quoting Glover v. United States, 531 U.S. 198, 203 (2001)).
Defendants have a right to counsel to protect them from over-
punishment as well as from wrongful conviction.
The right to counsel at sentencing also helps to preserve le-
gal rights for review. For instance, in Mempa v. Rhay, the Su-
preme Court reviewed Washington’s deferred-sentencing pro-
cedure, in which defendants faced a sentencing judge only after
they violated a term of probation. 389 U.S. 128, 135 (1967). It
held that deferred sentencing was a critical stage because “cer-
tain legal rights may be lost if not exercised at this stage.” Id.
at 135. If defendants lacked counsel then, the Court noted, they
could lose their right to appeal. Id. at 136.
B. In Pennsylvania, post-sentencing motions are a criti-
cal stage
The critical-stage inquiry may vary from state to state, de-
pending on how states choose to configure their criminal pro-
cedures. Pennsylvania courts treat Pennsylvania’s post-sen-
tencing, pre-appeal motions as a critical stage. Commonwealth
v. Corley, 31 A.3d 293, 297 (Pa. Super. Ct. 2011) (explaining
that defendants are “constitutionally entitled to counsel” during
“the post-sentence and direct appeal period”); Commonwealth
24
v. Dozier, 439 A.2d 1185, 1190 (Pa. Super. Ct. 1982) (recog-
nizing the right to counsel at sentence-reconsideration hear-
ings). Though these state decisions do not bind us, we agree
with them.
In Pennsylvania, defendants may face severe consequences
if they fail to file post-sentencing motions. These motions give
trial judges a second chance to review their decisions before
appeal, and even to admit new evidence. Pa. R. Crim. P.
720(C). Some motions are optional. If a defendant raised an
issue before or at trial, that issue is preserved for appeal even
without a post-sentencing motion. Id. R. 720(B)(1)(c). But mo-
tions addressing the “discretionary aspects of a sentence,” like
motions to reconsider or modify the sentence, must be raised
at or after sentencing. Commonwealth v. Jarvis, 663 A.2d 790,
791-92 (Pa. Super. Ct. 1995). “[C]ounsel must carefully con-
sider whether the record created at the sentencing proceeding
is adequate,” or else “the issues may be waived” on appeal. Pa.
R. Crim. P. 720 cmt. Miscellaneous.
In short, in Pennsylvania, defendants need counsel’s legal
expertise and skills to protect their right to challenge their sen-
tences post-sentencing. So the Sixth Amendment requires ef-
fective counsel at that critical stage.
VI. RICHARDSON’S POST-SENTENCING-COUNSEL CLAIM
IS PROPERLY BEFORE US
Next, the state asserts that Richardson did not preserve his
claim. But he did. This is true particularly because we must
read pro se pleadings charitably, especially when litigants are
imprisoned. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
25
(per curiam); Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
244-45 (3d Cir. 2013).
Richardson’s habeas petition “specif[ied] all the grounds
for relief available to the petitioner” and “state[d] the facts sup-
porting each ground.” Rules Governing § 2254 Cases, R. 2(c);
accord Mayle v. Felix, 545 U.S. 644, 655 (2005). In his federal
petition, Richardson’s Claim J expressly challenged the trial
court’s failure to “perform[ ] an in depth on the record colloquy
when petitioner released his retained counsel during sentenc-
ing.” Am. Fed. Habeas Pet. Mem. 3. Claim I challenged
Green’s “ineffective[ness] [in] abandoning his client during the
sentencing phase.” Id. Claims M and N challenged Hoey’s and
Brendza’s failure to find and preserve meritorious issues. Id. at
3-4.
Read together with Claim J, Richardson’s ineffective-coun-
sel claims include counsel’s failure to challenge the trial
judge’s lack of questioning. Richardson even raised the collec-
tive effect of “layered ineffective assistance of counsel, prose-
cutorial misconduct, and judicial error.” Id. at 2. And his Rule
60(b) motion reiterated his layered-ineffectiveness claim.
The state’s only response is that Richardson’s pro se plead-
ings referred to Hoey as appellate counsel, not post-sentencing
counsel. But that labeling is not dispositive. Regardless of the
labeling, the District Court and the state were both on notice of
Richardson’s claim.
26
VII. RICHARDSON LACKED EFFECTIVE ASSISTANCE OF
COUNSEL POST-SENTENCING
To recap: Richardson qualifies for Martinez’s exception to
procedural default. He had a right to counsel post-sentencing.
And he has preserved his claim. All that remains is to consider
the merits of Richardson’s underlying claim that his post-sen-
tencing counsel was ineffective. So now, Richardson must
show that Hoey was ineffective for not raising the trial court’s
failure to conduct a colloquy before letting him proceed with-
out counsel on the second day of his sentencing.
He has done so. Hoey was ineffective, and Richardson suf-
fered prejudice, because Hoey did not challenge the sentencing
judge’s failure to question Richardson.
At this stage, Richardson must satisfy the full Strickland
standard, not the abridged version used at the Martinez stage.
To prove ineffective assistance of counsel, Richardson must
show both that Hoey performed deficiently and that, as a result,
Richardson suffered prejudice. Strickland, 466 U.S. at 687.
Both prongs are satisfied here.
A. Deficient performance
As explained in Part IV.C, Hoey’s post-sentencing perfor-
mance was deficient. The sentencing judge had failed to con-
duct a colloquy to ensure that Richardson had knowingly and
voluntarily waived his right to counsel at sentencing. That error
was apparent. Hoey should have raised the issue, but he never
even saw it.
27
B. Prejudice
Richardson must also prove that Hoey’s deficient perfor-
mance prejudiced him. Strickland, 466 U.S. at 688. He has.
Richardson asserts that we may presume prejudice because
the sentencing judge’s error was structural. Structural errors in-
clude completely denying counsel to a defendant at a critical
stage. United States v. Cronic, 466 U.S. 648, 659 (1984).
“[W]e have characterized defective waivers [of counsel] as
structural errors.” United States v. Booker, 684 F.3d 421, 428
(3d Cir. 2012). On the other hand, Richardson did not com-
pletely lack counsel throughout sentencing. He had Green’s
representation on the first day of sentencing, though not the
second.
We need not decide whether the error was structural. Re-
gardless, it was prejudicial. The District Court disagreed, rea-
soning that the sentencing judge would have imposed the same
sentence anyway. Richardson, 2015 WL 9273135, at *15. It
stressed that the prosecution adduced no more evidence or tes-
timony on the second day of sentencing, so “there was nothing
left for the trial court to do but impose its sentence.” Id. But
that is not the correct test.
The test of prejudice is not whether the judge would have
imposed a different sentence, but “whether we would have
likely reversed and ordered a remand had the issue been raised
on direct appeal” or post-sentencing motion. Mannino, 212
F.3d at 844. Had Hoey challenged the failure to conduct a col-
loquy, either on appeal or by post-sentencing motion, the
28
proper remedy would have been to order a new sentencing
hearing. So his failure prejudiced Richardson.
VII. REMEDY
Richardson has navigated each twist of the habeas laby-
rinth. His ball of thread leads past Martinez’s equitable excep-
tion, past Brendza’s rejection of his argument, past Hoey’s
oversight, to the sentencing judge’s colloquy at the heart of the
maze. So Richardson has overcome every hurdle and we may
review the merits. See Bey v. Superintendent Greene SCI, 856
F.3d 230, 244 (3d Cir. 2017). Because the state court did not
review the merits, we review de novo. Id. at 236.
For the reasons discussed above, Richardson had a Sixth
Amendment right to counsel on the second day of sentencing.
But the sentencing judge let him proceed pro se without first
questioning him to ensure that he was intelligently and volun-
tarily waiving that right. And Hoey provided ineffective assis-
tance by not challenging that error post-sentencing and pre-
serving it for appeal and habeas corpus. Hoey’s error preju-
diced Richardson. So we will reverse and remand for the Dis-
trict Court to grant Richardson’s writ of habeas corpus, limited
to ordering a new sentencing hearing.
29