Opinion
CIVIL ACTION NO. 02-6837
December 10, 2003
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus filed by Jason Mashore pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Somerset, Pennsylvania. For the reasons which follow, the habeas petition should be denied.
Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Philadelphia, and the state court record forwarded by the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas.
In its November 6, 2000 opinion, the Superior Court of Pennsylvania described the underlying facts of this case as follows:
On June 17, 1997, [petitioner] and [his co-defendant] robbed [the victim], an employee at [a tire store in Philadelphia]. During the commission of the robbery, [petitioner] remained at the door to [the victim's] office with a shotgun in hand while [his co-defendant] robbed [the victim]. Later that same day, [petitioner] was arrested but not charged for the robbery.
On June 27, 1997, [petitioner] was charged with the robbery at [the tire store]. After being arrested, [petitioner], in a formal statement, admitted going into the tire store with the requisite intent to commit robbery but stated that he "got scared" and placed the blame for the robbery on [his co-defendant]. [Petitioner], however, did admit to having the shotgun when he entered the tire store.
Prior to the trial, [petitioner] filed a motion to suppress his statement to police. The trial court denied this motion. After the ruling on the suppression motion, the court did grant defense motions in limine to have all references to any other robberies, other than the tire store, be redacted from [petitioner's] statement and to disallow witnesses from mentioning the other robberies. The trial court also decided to admit evidence about cocaine found on [petitioner] on June 17, 1997, subject to a cautionary instruction that it could not be considered as evidence of any other crime other than those [petitioner] was charged with at trial.See Commonwealth v. Mashore, Nos. 1599 Phila. 1998, Mem. Op. at 1-2 (Pa. Super, filed Nov. 6, 2000) (footnote added). Following a jury trial in the Court of Common Pleas of Philadelphia, petitioner was convicted on February 26, 1998 of robbery, theft, possession of an instrument of crime, and criminal conspiracy. See N.T. Trial 2/26/98, at 70-71:see also Pa. Super. Ct. Op. filed 11/6/00, at 1-2. On May 20, 1998, petitioner was sentenced to five to ten (5-10) years in prison, to be followed by a consecutive term of five (5) years probation. Id. at 2.
Petitioner's co-defendant also gave a statement to police admitting his involvement in the tire store robbery and implicating petitioner.See N.T. 2/19/98, at 104-15; see also Resp. to Hab. Pet. at 4; Petitioner's Br. at 3.
Petitioner's co-defendant was found not guilty of the same charges. See N.T. Trial 2/26/98, at 68-70.
On November 6, 2000, the Superior Court of Pennsylvania affirmed the judgment of sentence. Id. at 14. The Supreme Court of Pennsylvania denied petitioner's request for allowance of appeal on May 23, 2001. See Commonwealth v. Mashore, 785 A.2d 88 (Pa. 2001) (table).
Petitioner thereafter filed the present habeas petition alleging the following grounds for relief: (1) petitioner was denied his right to counsel at a critical stage of the proceedings against him in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the Constitution; (2) communication between the trial court and the jury in the deliberation room without counsel present and the trial court's failure to notify petitioner or his counsel of that communication violated petitioner's right to be present at a critical stage of the proceedings against him guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution; and, (3) the trial court's aforementioned communication with the jury denied petitioner his right to due process and confrontation as guaranteed by the Sixth and Fourteenth Amendments by violating "the dictates of Bruton v. United States, 391 U.S. 123 (1968)." See Hab. Pet. at 7-12. The District Attorney of Philadelphia responds that petitioner's claims are procedurally defaulted, and in any event, without merit. See Resp. to Hab. Pet. at 9-20.
In Bruton, the Supreme Court held that a criminal defendant's Sixth Amendment confrontation right was violated where a hearsay confession by his co-defendant inculpating the defendant was admitted into evidence and the co-defendant did not testify. Bruton, 391 U.S. at 126: see United States v. Sandini, 888 F.2d 300, 310 (3d Cir. 1989), cert. denied,Thomson v. United States, 494 U.S. 1089 (1990). The holding in Bruton was subsequently limited by Richardson v. Marsh, 481 U.S. 200 (1987), in which the Court held that the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when the confession is redacted to eliminate the defendant's name and "any reference to his or her existence." Id. at 211. The Richardson Court distinguished such a redacted confession from the confession in Bruton by pointing out that the confession in Bruton "expressly implicat[ed]" the co-defendant as an accomplice, whereas the co-defendant's confession in Richardson "was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony)." Id. at 208 (emphasis added).
Although the habeas petition also raised a fourth claim alleging a violation of petitioner's rights to effective assistance of counsel and due process of law due to trial counsel's failure to object to alleged factual misrepresentations made by the prosecution and to the admission of evidence related thereto, petitioner has since withdrawn that ground for relief. See Petitioner's Br. at 1 ("Mr. Mashore respectfully withdraws Ground Number Four, set out in Section 12(D) of his Petition.").
II. DISCUSSION
(A) Exhaustion of State Remedies
"It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus unless the petitioner has first exhausted the remedies available in the state courts." Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)), cert. denied, 532 U.S. 919 (2001); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Specifically, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
In the present case, although respondent argues that petitioner "never presented the state courts with the legal theory that the trial court denied him the presence of counsel" or that his federal constitutional rights were violated due to the trial court's communication with jurors in the absence of counsel, see Resp. to Hab. Pet. at 9-10, 12, 16, the record reflects, and the Superior Court confirmed in its November 6, 2000 opinion, that petitioner did raise these claims on direct appeal. See, e.g., Pa. Super. Ct. Op. filed 11/6/00, at 2 (noting that petitioner was claiming that the trial court's communication with the jury "implicat[ed] the principles of Bruton" and violated his "federal constitutionally guaranteed rights to counsel, due process of law, confrontation and cross-examination, and to be present during the proceeding against him") (emphasis added); Brief for Appellant in Pa. Super. Ct. at 4 (claiming trial court's communication with jury violated "state and federal constitutionally guaranteed rights to counsel, due process of law, confrontation and cross-examination, and to be present during the proceedings against him") (emphasis added). The Supreme Court of Pennsylvania then denied allowance of appeal on May 23, 2001. See Commonwealth v. Mashore, 785 A.2d 88 (Pa. 2001) (table). Since petitioner appears to have presented his instant claims to the Pennsylvania courts on direct appeal, he has satisfied the exhaustion requirement. See O'Sullivan, 526 U.S. at 844-45; see also Wenger, 266 F.3d at 223.
(B) Legal Standard Under 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132 (Apr. 26, 1996), precludes federal habeas relief as to:
any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (footnote added) (emphasis added): see Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.Ct. 269 (2001). In Williams v. Taylor, 529 U.S. at 412-13, the Supreme Court interpreted the standard under § 2254(d)(1) as follows:
"Clearly established Federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta" of the Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ross v. Vaughn, 2001 WL 818359, at *3 (E.D. Pa. Jan. 16, 2001).
The habeas petition appears to apply the standard under § 2254(d) as amended by the AEDPA to petitioner's claims, including his first claim, which alleges the denial of the right to counsel. See, e.g., Hab. Pet. at 9 (regarding petitioner's first claim, petitioner states "the state court's resolution of this issue was contrary to and involved an unreasonable application of . . .") (emphasis added); see also id. at 11, 12. However, in his subsequently filed brief, petitioner argues that the Court should not apply amended § 2254(d) to all of his claims, but instead should review de novo petitioner's first claim on the ground that the state court did not reach the merits of this claim.See Petitioner's Br. at 6 (citing Appel v. Horn, 250 F.3d 209 (3d Cir. 2001)). As reflected by the Superior Court's November 6, 2000 opinion, it appears that the Superior Court did adjudicate petitioner's claims by applying harmless error analysis. See Pa. Super. Ct. Op. filed 11/6/00, at 7-8: see also Chadwick v. Janecka 312 F.3d 597, 605-06 (3d Cir. 2002) (holding that § 2254(d)(1) applies where a state prisoner's habeas claim "was adjudicated on the merits in State court proceedings," even when a claim is rejected without explanation), cert. denied, 123 S.Ct. 1914 (2003). In any event, for the reasons explained below, petitioner's claims do not warrant habeas relief whether the AEDPA standard is applied or not.
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
The Court of Appeals for the Third Circuit observed in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999), that to prove entitlement to habeas relief under the "contrary to" provision of § 2254(d)(1), "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. "This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id. at 197 (quoting Matteo, 171 F.3d at 888).
Prior to the Supreme Court's decision in Williams v. Taylor, the Court of Appeals for the Third Circuit construed the standard of review under § 2254(d)(1) in Matteo, The Third Circuit has since stated that its opinion in Matteo is in accord with the Supreme Court's decision inWilliams. See Werts, 228 F.3d at 197.
When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409 (emphasis added); see Chadwick, 312 F.3d at 607 (citingWilliams, 529 U.S. at 409; Matteo, 171 F.3d at 891). In applying the "unreasonable application" provision of § 2254, "[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent."Matteo, 171 F.3d at 891 (emphasis added): see Chadwick, 312 F.3d at 607 (citing Matteo. 171 F.3d at 891); Werts, 228 F.3d at 197.
The Supreme Court stressed that an application of federal law may be incorrect but still not unreasonable. Williams, 529 U.S. at 411 (a federal habeas court may not issue a writ under the "unreasonable application" clause "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Thus, mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411; Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of federal courts of appeals and district courts. Id. at 890; Ross, 2001 WL 818359, at *4.
With regard to findings of fact, § 2254(e)(1) provides that a state court's determination of a factual issue is "presumed to be correct" and further provides that a habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added); see Chadwick, 312 F.3d at 607; Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. "This presumption applies to the factual determinations of both state trial and appellate courts." Duncan, 256 F.3d at 196; see Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Furthermore, under Supreme Court and Third Circuit precedent, the presumption of correctness under the habeas statute applies to implicit factual findings as well as the express findings of the state courts. See Campbell v. Vaughn, 209 F.3d 280, 285-86, 290 (3d Cir. 2000), cert. denied, 531 U.S. 1084(2001).
Factual issues are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Townsend v. Sain, 372 U.S. 293 (1963)).
(C) Trial Court's Communication With Jury
All of petitioner's present claims allege a violation of his constitutional rights due to the trial judge's communication with the jury in the deliberation room without counsel present and the trial court's failure to notify petitioner or his counsel of that communication. See Hab. Pet. at 7-12. The record reflects that after the jury began deliberating, the trial judge conferred with the parties' respective counsel regarding questions from the jury as to the time of the robbery and the time of petitioner's arrest. See N.T. Trial 2/26/98, at 47. Upon agreement of all counsel as to the appropriate response to the jurors' questions, the judge entered the deliberation room without counsel and instructed the jurors that they should use their own recollection to make determinations of fact. Id. at 47-49.
The record reflects that petitioner's counsel consented to the judge communicating with the jurors in the deliberation room without counsel present. See N.T. 2/26/98, at 49 ("Judge, I don't mind you going back by yourself if you want to go back."). Indeed, petitioner acknowledges in his brief that "the trial judge entered the jury room three times, with the knowledge and agreement of the parties" and that "[t]he trial court and the parties agreed to what the judge would say in response to the jurors' specific questions for each visit." See Petitioner's Br. at 11-12 (emphasis added).
While the judge was in the jury deliberation room, the foreperson asked if it would be permissible for the jury to see an exhibit to help the jurors answer their questions regarding the time of robbery and the time of petitioner's arrest. Id. at 51. The judge left the deliberation room and again conferred with the parties' respective counsel, and counsel again agreed upon an acceptable response for the jury. Id. at 61-62.
This time, after the judge went into the deliberation room with the court reporter and provided the agreed upon response for the jury, the following communication occurred between the judge and the jury:
JUROR NO. 9: A trial like this when there are two defendants, is it possible for one to say the name of the other or visa versa?
JUROR NO. 6: On the statement is it possible they can mention the other, you know what I mean, defendant's name and state if they confessed to a crime?
THE COURT: I cannot answer that.
JUROR NO. 2: Is that part of the law?
THE COURT: Yes.
See N.T. Trial 2/26/98, at 63-64; see also Pa. Super. Ct. Op. filed 11/6/00, at 4-5. It is this particular communication between the judge and jury and the judge's alleged failure to notify petitioner of the communication which petitioner presently claims violated his constitutional rights.
While the judge was still in the deliberation room, jurors thereafter asked the judge about the definition of "Possession of an Instrument of Crime." See N.T. Trial 2/26/98, at 65. As the Pennsylvania Superior Court pointed out, see Pa. Super. Ct. Op. filed 11/6/00, at 7, the record indicates that the judge left the deliberation room and conferred with the lawyers again, and the judge subsequently re-entered the deliberation room, see N.T. Trial 2/26/98, at 65-66. The judge then told the jury: "I have just had discussions with all three lawyers, I explained to them the question that you asked in the room as the Court reporter was taking it down, and I indicated I would re-read the definition of Possession of an Instrument of Crime, and that was agreed by all the lawyers." See N.T. Trial 2/26/98, at 65-66 (emphasis added). The judge then re-read the requested definition. Id.
Initially, it is noted that the judge did not state to the jury that heonly relayed to the lawyers the question relating to the requested definition. See id Moreover, the judge appeared to indicate that he read from the transcript while conferring with counsel. See N.T. Trial 2/26/98, at 65-66 (judge indicated to the jury that he "had discussions with all three lawyers" and "explained to them the question that [the jurors] asked in the room as the Court reporter was taking it down" (emphasis added)). However, since the conversation between the judge and counsel was unfortunately not transcribed, the record is not clear whether or not the trial court notified petitioner's lawyer regarding the challenged communication or whether counsel waived any objections to the communication. In any event, recognizing that the record "is unclear as to whether the court told counsel of the questions that the jury had about the confessions," the Superior Court adjudicated petitioner's claims by addressing the issue of "whether the answering of the jury's questions by the judge actually constituted prejudice against [petitioner]." See Pa. Super. Ct. Op. filed 11/6/00, at 7.
In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court "rejected the argument that the Constitution requires a blanket rule of automatic reversal in the case of constitutional error," and concluded instead that there may be some constitutional errors which in the setting of a particular case may, consistent with the Constitution, be deemed "harmless." See Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (quotingChapman, 386 U.S. at 22). The Chapman Court held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."Chapman, 386 U.S. at 24 (emphasis added). In other words, in order to show harmlessness under the Chapman standard, "there must be noreasonable possibility that the [trial court's] error prejudiced the outcome of [the] trial." See United States v. Toliyer, 330 F.3d 607, 615 (3d Cir. 2003) (emphasis added); see also Brecht, 507 U.S. at 637 (defining harmless beyond a reasonable doubt standard as no "`reasonable possibility' that trial error contributed to the verdict" (emphasis added)); Chapman, 386 U.S. at 22 (same).
In the present case, the Superior Court applied the Pennsylvania equivalent of the Chapman standard. See Pa. Super. Ct. Op. filed 11/6/00, at 7 ("where there has been ex parte contact between the court and jury in a criminal case, we are constrained to reverse the defendant's conviction unless there is no reasonable possibility that the error might have contributed to the conviction." (emphasis added)). In applying this standard, the Superior Court denied relief and determined that "it cannot be said that the [challenged] communication between the trial court and the jury led to [petitioner's] conviction." Id. at 8.
In Brecht v. Abrahamson, the Supreme Court observed that federal habeas courts should apply a different harmless error standard in reviewing a claim of constitutional error than the Chapman standard which courts apply on direct review. See Brecht, 507 U.S. at 636 ("it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in"). Under the harmless error standard applied in Brecht, "we must ask whether the error had `substantial and injurious effect or influence in determining the jury's verdict.'" Alston v. Redman, 34 F.3d 1237, 1252 (3d Cir. 1994) (citing Deputy v. Taylor, 19 F.3d 1485 (3d Cir. 1994)), cert. denied, 513 U.S. 1160(1995); see Brecht, 507 U.S. at 637.
Here, petitioner argues that, he was denied his right to counsel at a critical stage of the proceedings and that harmless error analysis is therefore not applicable under United States v. Cronic, 466 U.S. 648 (1984). See Hab. Pet. at 7, 9. Thus, petitioner argues that prejudice must be "presumed and automatic reversal is required." Id. at 9; see also Petitioner's Br. at 15 (citing Cronic, 466 U.S. at 658). Respondent argues, among other things, that the trial court "did not deliver a supplemental instruction," but rather, the trial court indicated to the jurors that under governing law the court was prohibited from delivering further instructions on the matter, and that the court's response "did nothing to reinsert petitioner's name into his co-defendant's statement." See Resp. to Hab. Pet. at 20.
In Cronic, the Supreme Court stated: "The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." See Toliver, 330 F.3d at 613 (quoting Cronic, 466 U.S. at 659). "Under such circumstances, `[n]o specific showing of prejudice [is] required,' because [without counsel] `the adversary process itself [is] presumptively unreliable.'" Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (quoting Cronic, 466 U.S. at 659): see Toliver, 330 F.3d at 613.
Curiously, on direct appeal in the Pennsylvania Superior Court, petitioner argued in his brief that the "harmless beyond a reasonable doubt" standard should be applied in the adjudication of his claims, see Br. for Appellant in Pa. Super. Ct. at 20-25, and the Superior Court apparently agreed with petitioner in that regard, see Pa. Super. Ct. Op. filed 11/6/00, at 7-8 (applying the harmless beyond a reasonable doubt standard).
In United States v. Toliver, 330 F.3d at 615, the Third Circuit recently addressed the issue of whether harmless error analysis applied to the district court's act of responding to a question from the jury without first notifying either the defendant or his counsel. As in the present case, the defendant in Toliver argued on appeal that the trial court's communication with the jury in the absence of counsel violated the defendant's constitutional right to be present, as well as his constitutional right to counsel. Id. at 608.
The Third Circuit "was unpersuaded by [the defendant's] attempt to bring his claim under Cronic." and the Court thus concluded that harmless error analysis did apply to the defendant's claim. Id. at 617. In support of its conclusion, the Toliver Court pointed to the First Circuit's recognition that "[d]octrinally speaking . . . prejudice per se is hen's-teeth rare." Toliver, 330 F.3d at 614 (quotingGonzalez-Gonzalez v. United States, 49 Fed. Appx. 322, 324 (1st Cir. 2002), cert. denied, 124 S.Ct. 264 (Oct. 6, 2003)) (emphasis added): see also Ellis v. United States, 313 F.3d 636, 643 (1st Cir. 2002) (citing Supreme Court cases) ("The Supreme Court recently has emphasized how seldom circumstances arise that justify a court in presuming prejudice (and, concomitantly, in forgoing particularized inquiry into whether a denial of counsel undermined the reliability of a judgment."), cert. denied, 124 S.Ct. 99 (Oct. 6, 2003).
Although the Toliver Court applied the Chapman harmless error standard, Toliver addressed a federal prisoner's constitutional claim ondirect appeal. See Toliver, 330 F.3d at 613, 615; see also Brecht, 507 U.S. at 636 (observing that courts should apply the Chapman standard on direct appeal and the Brecht standard on federal habeas review). Of course, in the present case, although the Pennsylvania Superior Court addressed petitioner's claim on direct appeal, this Court must apply the appropriate standard under habeas review.
The Court in Toliver also pointed out that in United States v. Rosales-Rodriguez, 289 F.3d 1106 (9th Cir.), cert. denied, 537 U.S. 1061 (2002), the Ninth Circuit did not apply Cronic, but rather found harmless error analysis applicable to a claim alleging that neither the defendant nor his counsel was present during the delivery of a supplemental jury instruction. See Toliver, 330 F.3d at 614. Moreover, the Court "affirmed the defendant's conviction because the errors were harmless." Id. (citingRosales-Rodriguez, 289 F.3d at 1111).
The Toliver Court further observed that, although the First Circuit in Curtis v. Duval, 124 F.3d 1 (1st Cir. 1997), discussed in dictum a hypothetical in which Cronic might apply, the Curtis Court ultimately applied harmless error analysis to a claim alleging the absence of counsel during the trial court's delivery of supplemental jury instructions. See Toliver, 330 F.3d at 615. Indeed, in a subsequent case, the First Circuit acknowledged: "Dictum aside, the Curtis court . . . rejected the habeas petitioner's reliance on 'Cronic's prejudice per se principle' and held that the petitioner was not `actually prejudiced.'" Gonzalez-Gonzalez, 49 Fed. Appx. at 324 n. 4 (citing Curtis, 124 F.3d at 6).
Similarly, in Toliver, the Third Circuit held that "harmless error analysis applies to [the defendant's] claim that the trial judge's failure to consult with defense counsel before responding to a jury note violated his right to counsel." See Toliver, 330 F.3d at 615 (emphasis added). As in Toliver, the trial judge's responses to the juror's questions in the present case were "not akin" to "supplemental jury instructions" which "affirmatively guide jurors as to how they should fulfill their decisionmaking function." See id. at 614. Furthermore, as in Toliver and the cases cited therein, the present claims alleging a violation of petitioner's right to counsel and right to be present do not present circumstances under which prejudice should be presumed. Id. at 614-15: Ellis, 313 F.3d at 643-44 (applying harmless error analysis instead of presuming prejudice under Cronic where trial court responded substantively to jury's request for a supplemental instruction without consulting counsel). Harmless error analysis is also applicable to petitioner's remaining claims, including his claim alleging a Bruton violation. See United States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (observing that harmless error analysis is applicable to a Bruton claim), cert. denied, 533 U.S. 960 (2001); Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 753 (3d Cir. 1989) (applying harmless error analysis to a claim alleging a Bruton violation, the Court stated, "It is now well-established that not every Bruton violation will lead to a reversal of a criminal conviction.").
Under Brecht, the harmless error test applied under federal habeas review is "whether, in light of the record as a whole," the alleged deprivation of petitioner's right to counsel "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637; see Whitney v. Horn, 280 F.3d 240, 257 (3d Cir. 2002), cert. denied, 537 U.S. 1195 (2003); Hassine v. Zimmerman, 160 F.3d 941, 950 (3d Cir. 1998), cert. denied, 526 U.S. 1065 (1999); see also Ellis, 313 F.3d at 643-44 (applying the Brecht harmless error standard on collateral review). "Only if the error was not harmless can the writ of habeas corpus issue." See Alston, 34 F.3d at 1252.
Although Brecht was decided prior to the enactment of the AEDPA, neither the Third Circuit nor the United Supreme Court has indicated that the Brecht harmless error standard is no longer the appropriate standard to be applied by federal courts to claims on habeas review. See, e.g., Marshall v. Hendricks, 307 F.3d 36, 73 n. 25 (3d Cir. 2002). cert. denied, 123 S.Ct. 1492 (2003).
Under the harmless error standard applied in Brecht, petitioner's claim of prejudice fails. Petitioner acknowledges that the statement of each co-defendant was "redacted to eliminate reference to the other's name." See Petitioner's Br. at 3. Petitioner does not presently argue that the introduction of the co-defendants' respective statements, as redacted, was improper or violated his constitutional rights. Id. at 11. Indeed, petitioner acknowledges that "[t]he court properly instructed the jurors, pursuant to the clearly established constitutional requirements set out in Bruton v. United States, 391 U.S. 123 (1968), as to the parameters of the jurors' consideration of the statements prior to permitting them to retire to deliberate." See Petitioner's Br. at 11 (citing N.T. Trial 2/26/98, at 29-30) (emphasis added); see also supra note 4.
In addition to advising the jury that "the defendants are presumed to be innocent," see N.T. Trial 2/26/98, at 12, the trial court instructed the jury that:
[T]here is a rule also which restricts use by you of the evidence offered to show that the defendant made a statement concerning the crime charged.
A statement before trial may be considered as evidence only against the defendant who made the statement.
In other words, in this case you've heard two statements. You can only use the statement made by each defendant against that defendant and not against the other defendant.
N.T. Trial 2/26/98, at 29-30 (emphasis added). The Court then asked the jury, "Do you understand that?" Id. at 30. The jury collectively responded "[y]es," and the Court confirmed that "[e]veryone is nodding yes." Id.
In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court observed "the almost invariable assumption of the law that jurors follow their instructions." Id. at 206-07 (citing Francis v. Franklin, 471 U.S. 307, 325 n. 9 (1985)). For example, in the context of an ineffective assistance of counsel claim, the Supreme Court has stated that in making the determination whether the specified errors resulted in the required prejudice, a court should presume that the "jury acted according to law." See Strickland v. Washington, 466 U.S. 668, 694-95 (1984).
Here, each of the co-defendant's statements were redacted consistently with the principles of Bruton, and petitioner concedes that the trial court properly instructed the jury under Bruton. See Petitioner's Br. at 11 ("The trial court properly instructed the jurors" pursuant toBruton). Even assuming that the trial judge failed to notify petitioner's counsel of the particular communication at issue and that failure constituted constitutional error, in light of "the record as a whole,"see Brecht, 507 U.S. at 637, including the trial court's instructions to the jury regarding how they may consider the co-defendants' respective statements, it cannot be said that the alleged improper communication between the trial court and the jury "had substantial and injurious effect or influence in determining the jury's verdict." Id.: Ellis, 313 F.3d at 643-44 (finding trial court's error in responding to jury's questions without consulting counsel harmless under the Brecht standard); see also Whitney, 280 F.3d at 257; Hassine, 160 F.3d at 950. Moreover, the alleged constitutional violation would be harmless regardless of whether the Brecht standard or the Chapman standard applied. See, e.g., Marshall, 307 F.3d at 73 n. 25.
Therefore, petitioner has failed to demonstrate that the state court's adjudication of his claims "resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." see Matteo, 171 F.3d at 891 (emphasis added); see also Chadwick, 312 F.3d at 607 (citingMatteo, 171 F.3d at 891); Werts, 228 F.3d at 197, or that "Supreme Court precedent requires an outcome contrary to that reached by" the state court, see Matteo, 171 F.3d at 891 (emphasis added); see also Werts, 228 F.3d at 197. Accordingly, the state court's adjudication of petitioner's claims did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1): see also Williams, 529 U.S. at 404-05; Matteo, 171 F.3d at 891.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. "A [COA] should issue `only if the applicant has made a substantial showing of the denial of a constitutional right.'" United States v. Drake, 2002 WL 1020972, at *1 (3d Cir. May 21, 2002) (quoting 28 U.S.C. § 2253(c)(2)); see Miller-EL v. Cockrell, 123 S.Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To establish this, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484; see Miller-EL, 123 S.Ct. at 1040; Drake, 2002 WL 1020972, at *1. Here, since petitioner has not made the requisite showing of the denial of a constitutional right, a certificate of appealability should not issue. See Slack, 529 U.S. at 484; Drake, 2002 WL 1020972, at *1.
My Recommendation follows.