                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    _____________

                         No. 15-4012
                        _____________

                  GEORGE T. VICKERS, JR.

                                v.

         SUPERINTENDENT GRATERFORD SCI;
        ATTORNEY GENERAL PENNSYLVANIA,
                                Appellants
                  _______________

       On Appeal from the United States District Court
          for the Western District of Pennsylvania
                (W.D. Pa. No. 2-15-cv-00432)
       Honorable Robert C. Mitchell, Magistrate Judge
                    _______________

                  Argued: December 5, 2016

    Before: FISHER*, KRAUSE, and MELLOY**, Circuit
                        Judges.

*
  Honorable D. Michael Fisher, United States Circuit Judge for the
Third Circuit, assumed senior status on February 1, 2017.
**
   Honorable Michael J. Melloy, Senior Circuit Judge, United
States Court of Appeals for the Eighth Circuit, sitting by
designation.
                    (Filed: June 6, 2017)
                     _______________

George T. Vickers, Jr.
Graterford SCI
P.O. Box 244
Graterford, PA 19426
        Pro Se

Jerome A. Moschetta     [Argued]
Washington County Office of District Attorney
1 South Main Street
Suite 1003
Washington, PA 15301
      Counsel for Appellants

David R. Fine    [Argued]
K&L Gates LLP
17 North Second Street
18th Floor
Harrisburg, PA 17101

J. Nicholas Ranjan
K&L Gates LLP
210 Sixth Avenue
Pittsburgh, PA 15222
         Amicus Counsel for Appellee1

      1
         We express our gratitude to David R. Fine and J.
Nicholas Ranjam of K&L Gates LLP for accepting this matter
pro bono and for the quality of their briefing and argument in
this case. Lawyers who act pro bono fulfill the highest




                              2
                      _______________

                         OPINION
                      _______________


KRAUSE, Circuit Judge.

        Given the fundamental importance of the right to a
jury trial in our justice system, many states have promulgated
rules, akin to the Federal Rules of Criminal Procedure,
prescribing that the waiver of that right be on-the-record and
approved by a court before a defendant enters a guilty plea or
proceeds by way of non-jury trial. As a general matter, such
procedures are diligently followed to ensure a defendant’s
waiver is knowing and voluntary but, on occasion, there are
lapses. In this case, petitioner’s counsel discussed with him
generally the right to a jury trial but failed to secure an on-
the-record waiver or to apprise petitioner of all aspects of his
jury trial right before proceeding with a bench trial—conduct
the District Court determined established ineffective
assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984), and justified the grant of habeas relief.

       On appeal by the Commonwealth, we are called upon
to decide whether counsel’s deficiency on these facts gave

service that members of the bar can offer to indigent parties
and to the legal profession.




                               3
rise to structural error, such that Strickland prejudice might be
presumed, or whether petitioner is still required to establish
prejudice. Because we conclude a showing of prejudice is
required, we also have occasion to address the nature of that
showing and to modify our holding in United States v. Lilly,
536 F.3d 190 (3d Cir. 2008), in light of intervening Supreme
Court precedent. As we hold the proper prejudice inquiry in
this situation is whether there is a reasonable likelihood that,
but for his counsel’s deficient performance, petitioner would
have exercised his Sixth Amendment right to a jury trial, and
petitioner here has failed to make that showing, we will
reverse the judgment of the District Court.

I.     Factual Background and Procedural History

        Petitioner George Vickers’s conviction stems from an
incident in which Vickers punched the victim a single time
but that punch caused severe injuries. As reflected in the
record from his 2009 trial, the victim first encountered
Vickers at a bar where Vickers was socializing with the
victim’s ex-girlfriend. After a brief stay at the bar, the victim
left to catch a bus home. While waiting at the bus stop, the
victim was “struck from behind” in the “upper neck, shoulder,
and back area,” which caused him to stumble. App. 38.2
Though he did not know who shoved him, as he stumbled, he
“looked up” and “saw George Vickers,” who was “a step and
a half away.” App. 38. Within seconds of being shoved, the
victim was “struck over his right eye by what he thought was
a closed fist” and fell to the ground, unconscious. App. 38.
The victim suffered numerous serious injuries, including a
fractured skull, brain hemorrhaging, and bruising of the brain,

       2
         All citations to the Appendix refer to what has been
labeled Appendix Volume II on the public docket.




                               4
and was in a coma for four days as a result of the blow.
Vickers was charged with aggravated assault, recklessly
endangering another person, harassment, and disorderly
conduct.

        The issues on appeal all concern the adequacy of the
legal representation Vickers received in connection with the
waiver of his right to a jury trial. Pennsylvania law provides
that in order for a criminal case to be tried without a jury,
“[t]he judge shall ascertain from the defendant whether this is
a knowing and intelligent waiver, and such colloquy shall
appear on the record. The waiver shall be in writing, made a
part of the record, and signed by the defendant, the attorney
for the Commonwealth, the judge, and the defendant’s
attorney as a witness.” 234 Pa. Code § 620. Vickers was
originally represented by private counsel, and although his
case was placed on the Court of Common Pleas calendar as a
bench trial, these state-mandated procedures were not
followed in Vickers’s case. Vickers’s private counsel later
withdrew from his representation and, just a few weeks
before Vickers’s bench trial was to commence, an assistant
public defender was assigned to the case. Because the case
was already calendared as a bench trial, Vickers’s new
counsel presumed, without confirming, that Vickers had
formally waived his right to a jury trial at an earlier point, and
the bench trial went forward as scheduled. The judge who
presided found Vickers guilty on all counts and sentenced
him to seven to fourteen years’ imprisonment.

       Following his conviction, Vickers filed a petition for
relief under Pennsylvania’s Post-Conviction Relief Act
(“PCRA”). In that petition he claimed, among other things,
that he was deprived of effective assistance of counsel
because trial counsel “misled [him] on his right to have a jury




                                5
trial,” and failed to “obtain a valid waiver” of that right before
proceeding with a bench trial. App. 61, 73. The PCRA Court
held an evidentiary hearing, at which Vickers’s trial counsel
and Vickers testified regarding counsel’s representation.

        According to the testimony of counsel, when counsel
saw the case was already scheduled as a bench trial he
“assumed there had been a normal waiver at the bar and
whatnot like that,” and, based on that assumption, did not
conduct any investigation to determine “what, in fact,
occurred with regard to the waiver of [Vickers’s] jury trial
rights.” App. 99-100. Counsel also testified, however, that he
had spoken with Vickers “generally, about the right to a jury
trial,” App. 96, that he advised Vickers as to his right to have
“12 men and women decide the facts of the case as opposed
to a judge deciding the facts, and just the fundamentals,” App.
95, and that he understood Vickers to be familiar with the
criminal justice system because Vickers informed him that he
had been charged with a felony in a neighboring county the
previous year. Counsel further testified that he inquired of
Vickers every time they spoke, including on the day of the
trial, whether Vickers wanted a jury trial or a bench trial, and
Vickers consistently wanted to proceed with the scheduled
bench trial.

        Counsel’s testimony also detailed his strategic
discussions with Vickers which, in counsel’s view, had led
Vickers to opt for a bench trial. For example, counsel
testified he told Vickers that he believed Vickers’s best
chance of prevailing on the felony charge of aggravated
assault was to emphasize that this was a “one-punch case,”
and to argue that Vickers did not have the requisite intent to
cause the serious bodily injury necessary to support a
conviction—a “narrow legal issue”—he told Vickers “might




                                6
be lost to a panel of jurors,” but might be appreciated by a
judge who could more reliably “distinguish between the
aggravating factors.” App. 107, 109. Counsel elaborated that
he warned Vickers that there were risks associated with a
bench trial because “this courtroom can be a conservative
with personal injuries, and that’s a judge’s prerogative when
they listen to the evidence,” App. 95, but he ultimately
recommended that Vickers pursue a bench trial for strategic
reasons. According to counsel, Vickers “never” expressed a
preference for a jury trial during these tactical conversations,
App. 118, but rather “indicated he wanted to go forward”
with a bench trial, App. 95.

        Counsel could not recall specifically what he told
Vickers about his right to a jury trial and did not state—and
was not specifically asked by Vickers’s PCRA counsel—if he
informed Vickers that any jury verdict would have to be
unanimous. Nonetheless, while counsel acknowledged that
he “did not go through the whole colloquy form” with
Vickers, App. 99, he confirmed that he firmly believed, as a
result of his many conversations with Vickers leading up to
trial and Vickers’s past experience with the criminal justice
system, that Vickers was aware of his right to proceed by jury
trial instead of a bench trial, “understood the difference
between the two,” and chose to go forward with a bench trial.
App. 100.

        Vickers’s testimony at the PCRA hearing painted a
very different picture. Vickers testified that he “advised [his
counsel] during several phone conversations . . . that it was
[his] intent to take this to a jury trial,” App. 139, that he had
no understanding at the time of the trial that he was giving up
this right, and that he first discovered that he had a
constitutional right to a jury trial when doing legal research




                               7
for his appeal while incarcerated.          Before that point,
according to Vickers, he mistakenly thought only a majority
of the jury was required to return a guilty verdict but, even on
that mistaken assumption, he believed this “majority rules”
system was preferable to relying on the sole discretion of a
judge, App. 140, and would have exercised his right to a jury
trial had he been given the opportunity.

       On cross-examination, when presented with a guilty
plea form that he had signed in 2004 in connection with one
of his prior convictions, Vickers acknowledged he had signed
the form and had checked the boxes on it that appeared next
to each of the rights attendant to a jury trial, but he asserted
he had not read the form. That form provided that, by
pleading guilty, Vickers was waiving his right to a jury trial
and all attendant rights, including the right to have “[a]ll 12
members of the jury finely selected . . . be satisfied that the
Commonwealth had proven [his] guilt beyond a reasonable
doubt on each charge, that is, the vote of all 12 must be guilty
before [he] can be found guilty.” App. 149-50.

       The PCRA court carefully evaluated the conflicting
testimony presented at the hearing and found “the testimony
of [counsel] credible and the testimony of George Vickers not
credible.” App. 176. Accordingly, the court reasoned that,
even though Vickers had not waived his right to a jury trial in
writing or orally on the record, he was not denied effective
assistance of counsel because he made a strategic decision to
pursue a bench trial and “freely, voluntarily, and intelligently
waived his jury trial rights.” App. 177.

       The Pennsylvania Superior Court affirmed, finding “no
basis” to disturb the PCRA court’s credibility determinations,
and concluding, like the PCRA court, that because Vickers’s




                               8
waiver of his jury trial right was knowing and voluntary, he
had not established that he received ineffective assistance of
counsel.3 App. 191.

       His state remedies exhausted, Vickers filed a petition
for habeas relief pursuant to 28 U.S.C. § 2254 in which he re-
asserted his claim that counsel was ineffective for proceeding
with a bench trial when Vickers had not waived his right to a




       3
          Vickers argues that the PCRA court and Superior
Court erred by extrapolating from his 2004 plea form to hold
that any future waiver of the jury trial right would be knowing
and voluntary. We agree that such reasoning, had it formed
the basis for the courts’ decisions, would be disturbing and
fallacious. Here, however, it is apparent that, to the extent
those courts relied on the document at all, it was in
connection with broader credibility findings, determining—
from Vickers’s assertion in his direct testimony that he had no
knowledge of any right to a jury trial before he began
preparing his appeal, the cross-examination of Vickers
concerning the plea form that proved otherwise, and
Vickers’s counsel’s testimony that Vickers indicated his
understanding, based in part on his criminal history, of his
right to a jury trial and how it differed from a bench trial—
that “the testimony of [counsel was] credible and the
testimony of George Vickers [was] not credible.” App. 176.
The PCRA court was best situated to assess credibility at the
hearing, and, for that limited purpose, we perceive no error in
its use of the form or the Superior Court’s reliance, in turn, on
the PCRA court’s credibility assessment.




                               9
jury trial.4 The District Court agreed with Vickers, holding
that the Superior Court’s decision was “contrary to or
involved an unreasonable application of clearly established
federal law,” because, irrespective of the testimony at the
PCRA hearing, the record reflected that there was no written
or oral waiver of Vickers’s right to a jury trial. Vickers v.
Wenerowicz, No. 2:15-CV-432, 2015 WL 7308673, at *6
(W.D. Pa. Nov. 19, 2015).5 Citing to the familiar two-part
test for ineffective-assistance-of-counsel claims set forth in
Strickland v. Washington, 466 U.S. 668 (1984), the District
Court determined, first, that counsel’s performance was
constitutionally deficient for failing to obtain a formal jury-
trial waiver, and, second, albeit without discussing what
prejudice must be shown in this circumstance or whether
Vickers had made that showing, that Vickers also “was
prejudiced” by his counsel’s deficient performance. Vickers,
2015 WL 7308673, at *6. Accordingly, the District Court
held Vickers was “entitled to relief here,” and granted him a




       4
         Vickers filed his habeas petition in the United States
District Court for the Western District of Pennsylvania, and
the parties consented to proceed through final judgment
before a Magistrate Judge. As the Magistrate Judge’s opinion
and order thus constitute those of the District Court, see 28
U.S.C. § 636(c)(1), we will refer to the Magistrate’s rulings
as those of the District Court throughout this opinion.
       5
         Vickers also raised three other claims for relief that
were denied by the District Court. Vickers does not challenge
those rulings on appeal.




                              10
writ of habeas corpus.6 Id. The Commonwealth timely
appealed, and we appointed amicus curiae to assist Vickers in
his appellate proceedings.7


       6
         In its opinion granting Vickers’s petition, the District
Court noted “a complete dereliction of duty” by the Office of
the District Attorney for “fail[ing] to defend th[e] litigation
with any degree of diligence” on the Commonwealth’s behalf
over the course of the proceeding. Vickers, 2015 WL
7308673, at *2. The troubling pattern of behavior to which
the District Court referred dates back even as far as the state
court proceeding, where, e.g., the Commonwealth failed to
file a brief in response to Vickers’s direct appeal. That
pattern also continued into Vickers’s federal proceedings
when, without any explanation or request for an extension,
the Commonwealth failed to meet its deadline to file a
response to Vickers’s habeas petition. When the District
Court still had not received any response from the
Commonwealth nearly two months after that deadline, it
entered an order for the Commonwealth to show cause why
Vickers’s request for relief should not be granted due to the
Commonwealth’s failure to respond to the petition. Again,
the Commonwealth failed to respond, prompting the District
Court to issue another order—this time granting the writ of
habeas corpus and ordering Vickers discharged from custody
unless the Commonwealth retried him within ninety days.
After more than a month passed with still no response from
the Commonwealth, the District Judge issued a third order
scheduling a release hearing for the ninety-day date. Nearly a
week after this order, the Commonwealth finally awakened to
the situation and filed a motion for reconsideration, which the
District Court granted.




                               11
II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C.
§ 2254 and we have jurisdiction under 28 U.S.C. § 2253.
Because the District Court did not conduct an evidentiary
hearing, our review of the District Court’s grant of Vickers’s


       We are deeply disturbed that, notwithstanding that
wake-up call, the Commonwealth’s “dereliction of duty” has
continued into this appeal, requiring this Court to issue a
court order for the Commonwealth to reply to the brief filed
by amicus on Vickers’s behalf. At oral argument, counsel for
the Commonwealth acknowledged these troubling lapses and
offered an apology to the Court. We trust that the Office of
the District Attorney, going forward, will represent the
Commonwealth and fulfill its obligations to the courts with
far greater diligence and professionalism.
       7
         Vickers proceeded pro se on appeal and filed a
responsive brief supporting the District Court’s grant of relief
on his ineffective assistance claim but also raising a host of
other claims, such as an alleged violation of his right to a
speedy trial, presumably as alternative grounds for affirming.
We do not address the substance of those other claims here,
as they were not properly exhausted in the state court, and, in
any event, appear meritless to the extent they are intelligible.
However, we appointed counsel as amicus to further explore
Vickers’s more substantial ineffective assistance claim, and
we consider counsel’s thorough briefing and excellent
advocacy as simply expounding on Vickers’s own argument.
For that reason and for simplicity’s sake, we will identify
arguments, whether raised by amicus or Vickers, as those of
“Vickers.”




                              12
petition is plenary. McMullen v. Tennis, 562 F.3d 231, 236
(3d Cir. 2009).

III.   Analysis

       Our review of habeas claims is governed by the Anti-
Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which instructs that where, as here, a state court
has rejected a petitioner’s claim on the merits, a federal court
may not grant the writ unless the state court’s decision “was
contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). A
decision is “‘contrary to’ clearly established federal law if it
‘applies a rule that contradicts the governing law set forth’ in
Supreme Court precedent, or if it ‘confronts a set of facts that
are materially indistinguishable from a decision of the
Supreme Court and nevertheless arrives at a result different’
from that reached by the Supreme Court.” Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013) (alteration and citation
omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405
(2000)). A decision contains an “unreasonable application”
of clearly established law if no “fairminded jurist[]” could
agree with the state court’s decision. Harrington v. Richter,
562 U.S. 86, 101 (2011).

       While a determination that a state court’s analysis is
contrary to or an unreasonable application of clearly
established federal law is necessary to grant habeas relief, it is
not alone sufficient. That is because, despite applying an
improper analysis, the state court still may have reached the
correct result, and a federal court can only grant the Great
Writ if it is “firmly convinced that a federal constitutional
right has been violated,” Williams, 529 U.S. at 389. See also




                               13
Horn v. Banks, 536 U.S. 266, 272 (2002) (“[w]hile it is of
course a necessary prerequisite to federal habeas relief that a
prisoner satisfy the AEDPA standard of review . . . none of
our post-AEDPA cases have suggested that a writ of habeas
corpus should automatically issue if a prisoner satisfies the
AEDPA standard”). Thus, when a federal court reviewing a
habeas petition concludes that the state court analyzed the
petitioner’s claim in a manner that contravenes clearly
established federal law, it then must proceed to review the
merits of the claim de novo to evaluate if a constitutional
violation occurred.8 See Lafler v. Cooper, 566 U.S. 156, 174
(2012).

         Below, we first address whether AEDPA deference to
the state court’s denial of relief was warranted, concluding
that it was not because the state court’s analysis was contrary
to clearly established Supreme Court precedent. We then turn
to our own de novo review of Vickers’s claim that he
received ineffective assistance of counsel.

       A.     AEDPA Deference



       8
         These steps sometimes merge in cases in which the
federal habeas court determines that the state court engaged in
an “unreasonable application” of clearly established Supreme
Court precedent because it will be apparent from the
explication of why the state court unreasonably applied that
precedent that, under any reasonable application, a
constitutional violation did occur. See, e.g., Washington v.
Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 170 (3d Cir. 2015);
Eley, 712 F.3d at 861.




                              14
       The Commonwealth contends on appeal that the
judgment should be reversed because the District Court failed
to accord appropriate deference to the state court under
AEDPA, and, applying proper deference, the Superior Court
did not engage in an “unreasonable application” of Strickland.
We agree with the Commonwealth that the District Court
erred, but not because it failed to apply AEDPA deference.

        Indeed, as a threshold matter, we conclude that no
AEDPA deference is warranted here because the Superior
Court failed to apply Strickland altogether, resulting in a
decision “contrary to” clearly established federal law. That
is, even though the Superior Court correctly identified
Strickland as controlling, it concluded there was no
ineffective assistance of counsel on the ground that Vickers’s
waiver of his right to a jury trial was knowing and voluntary.
That, however, is precisely the reasoning that the Supreme
Court held was contrary to Strickland in Lafler v. Cooper,
566 U.S. 156 (2012), where the state court had concluded
there was no ineffective assistance of counsel merely because
it found petitioner’s rejection of a plea offer to be knowing
and voluntary. Id. at 173. Declining to accord AEDPA
deference, the Supreme Court held that “[a]n inquiry into
whether the rejection of a plea is knowing and
voluntary . . . is not the correct means by which to address a
claim of ineffective assistance of counsel,” and, because the
state court “fail[ed] to apply Strickland to assess the
ineffective-assistance-of-counsel claim [petitioner] raised,
[its] adjudication was contrary to clearly established federal
law.” Id. In Vickers’s case, in other words, the Superior
Court’s decision was contrary to both Strickland and Lafler.

       This conclusion, however, does not end our inquiry or
require that the Great Writ be granted. Instead, as in Lafler




                             15
itself, it merely forfeits the AEDPA deference to which the
state court’s denial of relief would otherwise be entitled and
dictates that we review Vickers’s Strickland claim de novo.
See Lafler, 566 U.S. at 173-74; Breakiron v. Horn, 642 F.3d
126, 131 (3d Cir. 2011). That is, we no longer owe deference
to the state court’s legal conclusions, Wiggins v. Smith, 539
U.S. 510, 542 (2003), but still “must presume that state-court
factual findings”—including its credibility findings—“are
correct unless the presumption is rebutted by clear and
convincing evidence,” Breakiron, 642 F.3d at 131; Jacobs v.
Horn, 395 F.3d 92, 100 (3d Cir. 2005).9 Bearing in mind the
applicable standard of review, we turn to the merits of
Vickers’s ineffective-assistance-of-counsel claim.

      B.     De Novo Review of Vickers’s Claim

      Reviewing Vickers’s claim of ineffective assistance of
counsel de novo, we consider, first, whether counsel’s

      9
            We have not had occasion, to this point, to
specifically address the deference we afford to credibility
findings, as opposed to factual findings more generally, once
we determine that AEDPA deference is inapplicable. There
is no question, however, that credibility findings in that
context are also presumed correct absent “clear and
convincing evidence” to the contrary, Breakiron, 642 F.3d at
131, because “[i]n cases where the AEDPA standards of
review do not apply, federal habeas courts apply pre-AEDPA
standards of review,” Jacobs, 395 F.3d at 100, and pre-
AEDPA, “federal habeas courts [had] no license to
redetermine credibility of witnesses whose demeanor ha[d]
been observed by the state trial court, but not by them,”
Marshall v. Lonberger, 459 U.S. 422, 434 (1983).




                             16
performance was deficient and, second, whether Vickers has
established the requisite prejudice. 10
              1.     Strickland Performance Prong

       We begin with Strickland’s performance prong. When
assessing whether a petitioner has demonstrated that his
attorney’s representation was constitutionally deficient, we
look to “the facts of the particular case, viewed as of the time
of counsel’s conduct,” Strickland, 466 U.S. at 690, and
evaluate whether counsel’s performance “fell below an

       10
           We may begin our analysis with either of
Strickland’s two prongs and follow “the practical suggestion
in Strickland [that we] consider the prejudice prong before
examining the performance of counsel prong” where that
approach “is less burdensome to defense counsel,” Lilly, 536
F.3d at 196, or makes it “easier to dispose of an
ineffectiveness claim,” Strickland, 466 U.S. at 697. Here,
however, neither of those circumstances pertain, as we have a
fully developed record from the PCRA hearing at which
counsel already testified, the District Court addressed both
deficiency and prejudice, and our review of the particular
deficiencies alleged here may provide guidance to trial courts
and defense counsel that will benefit, not burden, the criminal
justice system. See id. (encouraging reviewing courts to
review ineffectiveness claims in a way that does not “become
so burdensome to defense counsel that the entire criminal
justice system suffers as a result”). We therefore will address
both components of the Strickland inquiry.




                              17
objective standard of reasonableness” under “prevailing
professional norms,” id. at 688.

       Vickers has met this standard here because his
attorney’s failure to ensure that he properly waived his right
to a jury trial was not “within the range of competence
demanded of attorneys in criminal cases.” Id. at 687. The
Supreme Court has repeatedly emphasized the importance of
a criminal defendant’s Sixth Amendment right to a trial by
jury and that this right may only be ceded by a knowing,
voluntary, and intelligent waiver.       See Schneckloth v.
Bustamonte, 412 U.S. 218, 236-37 (1973); Adams v. U.S. ex
rel. McCann, 317 U.S. 269, 276-77 (1942). And the
importance of this fundamental right is reflected in both the
Federal Rules of Criminal Procedure and the Pennsylvania
Criminal Code, which mandate that all waivers of jury trials
be in writing, signed by both parties, and approved by the
court on the record. See Fed. R. Crim. P. 23; 234 Pa. Code §
620.

        Of course, the touchstone is whether a defendant’s
jury-trial waiver is knowing and voluntary, so that the failure
to comply with these procedures does not per se establish a
constitutional violation. See Gov’t of Virgin Islands v.
Parrott, 476 F.2d 1058, 1061-62 (3d Cir. 1973);
Commonwealth v. Mallory, 941 A.2d 686, 697-98 (Pa. 2008).
At the same time, however, compliance provides strong
assurance ex ante that the defendant has been fully apprised
of his right to a jury trial and that his waiver is not subject to
constitutional challenge. As we have previously encouraged
of our colleagues in the District Court in the context of Rule
23 colloquies, such on-the-record assurances by the defendant
himself that his waiver is knowing and voluntary will “help[]
insulate a jury-trial waiver from later attack by a defendant




                               18
who claims he did not fully understand the nature of the right
before he forfeited it . . . [and] will create a record capable of
withstanding subsequent challenges, satisfy the court’s
responsibility, facilitate intelligent appellate review, conserve
scarce judicial resources, and enhance the finality of criminal
convictions.” Lilly, 536 F.3d at 197 (internal quotation marks
omitted). Under prevailing professional norms, competent
defense counsel is expected to ensure a criminal defendant
receives the benefit of those well-established procedures.

       Vickers’s counsel, on the other hand, did not conduct
any investigation to determine whether Vickers had been
given an appropriate colloquy before his case was scheduled
for a bench trial, and simply “assumed there had been a
normal waiver at the bar and whatnot like that,” App. 99-100.
Had counsel taken the minimal step of reviewing the case file,
the docket, or the trial court record to confirm there had been
a formal waiver—or had he simply inquired of the trial court,
opposing counsel, prior defense counsel, or his own client to
verify that a proper waiver had occurred—he would have
discovered his assumption was in error and he could have
ensured, consistent with the Pennsylvania Code, that the
judge engaged in an appropriate colloquy and that Vickers
waived his jury trial right in writing before proceeding with a
bench trial. Yet, he did not. Nor did counsel review the
colloquy form privately with Vickers to confirm that Vickers
was apprised of all attendant aspects of his jury-trial right
before he waived that right.

       Although we are sympathetic to the difficult position
in which counsel was placed when he inherited this case only
weeks before trial, prevailing professional norms required and
continue to require counsel in this circumstance to verify,
through a review of the record or an inquiry with the court or




                               19
prior counsel, that the client formally waived his jury trial
right. See Rompilla v. Beard, 545 U.S. 374, 383 (2005)
(holding that counsel’s failure to examine court file on past
conviction prior to sentencing constituted deficient
performance); cf. Kimmelman v. Morrison, 477 U.S. 365, 385
(1986) (finding deficient performance where attorney failed
to file a suppression motion “not due to strategic
considerations, but because . . . he was unaware of the
[constitutional violation]”). Because counsel failed to do so
here, his conduct fell below “an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.

              2.     Strickland Prejudice Prong

       We turn next to the prejudice prong. When assessing
Strickland prejudice, we typically ask “whether the petitioner
has shown that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” with “a reasonable probability”
meaning “a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. Here, however,
between the arguments of the litigants and the relevant case
law, we are confronted with two discrete ways to frame the
prejudice analysis.

        Vickers argues that because counsel’s ineffectiveness
deprived him of his right to a jury trial and the deprivation of
that right constitutes structural error, prejudice under
Strickland must be presumed and Vickers is automatically
entitled to relief. The Commonwealth, on the other hand,
argues that prejudice cannot be presumed and the relevant
inquiry is whether the outcome of the proceeding would have
been different had Vickers been tried by a jury rather than a




                              20
judge.11 Below, we address: (a) whether prejudice even
arguably could be presumed in this case; (b) if not, what
prejudice inquiry is appropriate; and (c) how the proper
prejudice inquiry applies to Vickers’s case.

              a)     Whether Prejudice Should be Presumed

       Turning first to Vickers’s contention that Strickland
prejudice can be presumed, the Supreme Court has long held
that constitutional errors do not require automatic reversal,
and that courts may apply a “harmless error” analysis to
determine whether the mistake affected the outcome of the
trial. Chapman v. California, 386 U.S. 18, 22 (1967). The
Supreme Court has also held, however, that there are certain
errors, deemed “structural” errors that so “affect[] the
framework within which the trial proceeds” that they cannot

       11
           Vickers contends that because the Commonwealth
addressed only Strickland’s performance prong in its opening
brief, it has waived any argument based on the prejudice
prong. Although it is generally correct that an issue not
raised in an appellant’s opening brief is waived, Laborers’
Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy
Corp., 26 F.3d 375, 398 (3d Cir. 1994), we may not relieve
Vickers of his burden to prove both deficiency and prejudice
to obtain habeas relief because federal courts are only
empowered to grant the writ “on the ground that [the
petitioner] is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a).
We therefore reject Vickers’s contention that he is
automatically entitled to relief if he can demonstrate deficient
performance, and we will proceed to address whether Vickers
was prejudiced by his counsel’s ineffective performance.




                              21
be subject to harmless error analysis. Arizona v. Fulminante,
499 U.S. 279, 310 (1991). For example, the Supreme Court
has identified the denial of the right to counsel of a
defendant’s choice, United States v. Gonzalez-Lopez, 548
U.S. 140, 149-50 (2006), the denial of the right to a public
trial, Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984), and
the denial of the right to self-representation, McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984), as errors “with
consequences that are necessarily unquantifiable and
indeterminate” such that reversal is required without further
analysis when they occur, Gonzalez-Lopez, 548 U.S. at 150.
See also United States v. Lewis, 802 F.3d 449, 461-62 (3d
Cir. 2015) (en banc) (Smith, J., concurring) (reviewing
categories of cases constituting structural error).

       Even accepting Vickers’s premise that prejudice may
be presumed when counsel’s deficient performance results in
structural error,12 Vickers would not be entitled to such a
presumption here because no structural error resulted from his
counsel’s deficiency.


       12
          This issue is currently pending before the Supreme
Court, which granted certiorari in Weaver v. Massachusetts,
137 S. Ct. 809 (2017), and held oral argument on April 19,
2017, to address the question “whether a defendant asserting
ineffective assistance that results in a structural error must, in
addition to demonstrating deficient performance, show that he
was prejudiced by counsel’s ineffectiveness.” See Petition for
Writ of Certiorari at 3, Weaver v. Massachusetts, No. 16-240
(S. Ct. Aug. 18, 2016), 2016 WL 4474568. Given our
disposition of Vickers’s claim, we have no cause to hold his
case c.a.v. pending a decision in Weaver.




                               22
        Whether the deprivation of the jury trial right itself
constitutes structural error is a question that neither the
Supreme Court nor this Court has squarely addressed. The
Supreme Court has discussed the “profound” importance of
the Sixth Amendment right to a jury trial, observing that the
right “reflect[s] a fundamental decision about the exercise of
official power” in our criminal justice system. Duncan v.
Louisiana, 391 U.S. 145, 155-56 (1968). And where a
defendant has been completely denied the right to a jury trial
because neither the trial court nor his attorney informs him of
that right, at least one Court of Appeals has held the error is
structural and prejudice should be presumed when evaluating
an ineffective assistance claim. See McGurk v. Stenberg, 163
F.3d 470, 474 (8th Cir. 1998); see also Miller v. Dormire, 310
F.3d 600, 603 (8th Cir. 2002).

       Here, however, Vickers does not and cannot claim he
suffered a total deprivation of his right to a jury trial as a
result of his counsel’s deficiency. Indeed, the record is
unambiguous that Vickers was apprised of his right to a jury
trial because the state court found credible Vickers’s
counsel’s testimony that he and Vickers discussed his right to
a jury trial on multiple occasions—a finding we must
presume to be correct, even on de novo review, Breakiron,
642 F.3d at 131; Jacobs, 395 F.3d at 100. Rather, Vickers
argues that his waiver was rendered unintelligent and
involuntary either because counsel failed to secure an on-the-
record waiver or because counsel did not specifically apprise
him of all aspects of a jury trial, he was unaware of the
requirement of juror unanimity when he waived. The premise
of this second argument is dubious at best, given the PCRA




                              23
court’s fact-finding to which we must defer.13 Id. Even if we
engage both arguments, however, they fail on the merits
under controlling case law.

       We have previously held, consistent with other Courts
of Appeals that have addressed the issue, that an on-the-
record waiver, while probative and strongly encouraged, is
not a prerequisite to a knowing and voluntary waiver and,
hence, is not constitutionally required. Parrott, 476 F.2d at
1062; United States v. Boynes, 515 F.3d 284, 286 (4th Cir.
2008); United States v. Rodriguez, 888 F.2d 519, 527 (7th
Cir. 1989); see also Lilly, 536 F.3d at 197-98 (noting in the
Rule 23 context that, while strongly advisable, an on-the-
record waiver colloquy is not a constitutional requirement).
As relevant here, then, its omission is not per se constitutional
error, much less structural error.

        Nor has the Supreme Court or any Court of Appeals
held to date that a defendant must be specifically apprised of
the requirement of juror unanimity in order to knowingly and
intelligently waive his jury-trial right. On the contrary, the
Courts of Appeals that have confronted that argument have
rejected it. See Sowell v. Bradshaw, 372 F.3d 821, 833-34

       13
            Implicit in the state court’s credibility
determinations is its finding that Vickers was aware that any
jury verdict would have to be unanimous. For example, the
state court credited counsel’s testimony that Vickers
“understood the difference between the two [types of trials],”
App. 100, and rejected as incredible Vickers’s testimony,
which included his assertion that he mistakenly believed at
the time he could be convicted by only a majority of the
jurors.




                               24
(6th Cir. 2004) (holding that knowledge of the juror
unanimity requirement is not constitutionally required in
order for a defendant to give a knowing and voluntary waiver
of his right to a jury trial); U.S. ex rel. Williams v.
DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983) (holding the
Constitution requires only that the defendant understand “that
the choice confronting him was, on the one hand, to be judged
by a group of people from the community, and on the other
hand, to have his guilt or innocence determined by a
judge”).14 And even Rule 11 of the Federal Rules of Criminal
Procedure, governing the necessary procedures to ensure that
a guilty plea is knowing and voluntary, does not require that a
defendant be specifically apprised of the juror-unanimity
requirement but only of his general “right to a jury trial,” to
relinquish that right in connection with a plea waiver. See
Fed. R. Crim. P. 11(b)(1)(C); see also United States v. Pagan-
Ortega, 372 F.3d 22, 29 (1st Cir. 2004) (concluding that not
even a Rule 11 violation, let alone a constitutional violation,
occurred when defendant was not informed of his right to a
unanimous jury as part of his plea colloquy). While this

      14
          Vickers relies on the Sixth Circuit’s opinion in
United States v. Martin, 704 F.2d 267, 273 (6th Cir. 1983), as
support for his argument that a defendant must be informed of
the unanimity requirement to give a knowing and voluntary
waiver of his right to a jury trial. In Sowell, however, the
Sixth Circuit explicitly rejected this reading of Martin,
holding that Martin did not “establish[] a constitutional
requirement that the defendant understand that the verdict
must be unanimous.” Sowell, 372 F.3d at 833.




                              25
Court has not yet opined on whether the failure to apprise a
defendant of the unanimity requirement would render a jury-
trial waiver constitutionally infirm, it is sufficient for today’s
purposes to observe that where there is a substantial question
that such even results in constitutional error, it assuredly does
not result in structural error. See Neder v. United States, 527
U.S. 1, 7 (1999) (explaining that structural errors are “a
limited class of fundamental constitutional errors that ‘defy
analysis by harmless error standards.’” (quoting Fulminante,
499 U.S. at 309).

       Our conclusion that prejudice must be demonstrated,
not presumed, in this circumstance is further supported by the
approach the Supreme Court and this Court have taken in
addressing similar claims in the past. In Hill v. Lockhart, 474
U.S. 52 (1985), the Supreme Court was presented with an
ineffective-assistance-of-counsel claim based on counsel’s
failure to inform a petitioner of the parole consequences of
his guilty plea, and despite petitioner’s allegation that this
lack of complete information about the right that he was
relinquishing made his entire guilty plea “involuntary” and
“unintelligent,” id. at 56—an allegation closely tracking
Vickers’s—the Court explicitly held that a prejudice analysis
was necessary before relief could be granted and proceeded to
address that prong of the petitioner’s Strickland claim, id. at
59.

        Likewise, in United States v. Lilly, we were presented
with a claim of ineffective assistance nearly identical to
Vickers’s when a petitioner, who had been in the courtroom
when counsel waived his jury-trial right in favor of a bench
trial and who had signed a formal waiver form only after the
trial, asserted that he had not been fully apprised of his right
to a jury trial and thus had not waived it knowingly and




                               26
voluntarily. 536 F.3d at 192-93. To determine whether
petitioner had established ineffective assistance, we did not
simply presume prejudice but performed a traditional
Strickland prejudice analysis before ultimately concluding
that he was not entitled to relief. Id. at 196. Thus, while we
leave for another day whether a total failure to inform a
defendant of his right to a jury trial could give rise to a claim
of structural error, cf. McGurk, 163 F.3d at 474, we hold,
consistent with Hill and Lilly, where a defendant has been
apprised of his basic right to a jury trial, counsel’s failure to
inform him of certain aspects of that right does not give rise
to structural error. And, absent structural error, there is no
colorable argument that prejudice should be presumed in this
case.

              b)     Determining the Proper Prejudice Test

       Having concluded that a showing of prejudice is
required, we next address what that showing should be. The
Commonwealth argues in favor of the approach we
articulated in Lilly, where we held that a petitioner who was
convicted upon a bench trial and claimed prejudice as a result
of his counsel’s failure to ensure a valid jury-trial waiver
must show a reasonable probability that “in the absence of
counsel’s advice, another fact finder (i.e., a jury) would have
been reasonably likely to arrive at a different outcome.” 536
F.3d at 196. Although Lilly correctly reflects that we must
address the prejudice question as part of our Strickland
analysis, a trio of Supreme Court cases explaining the
appropriate inquiry in similar circumstances illustrates that a
modification to Lilly’s prejudice test is necessary.

       First, in Hill, as noted above, the Court considered an
ineffective-assistance-of-counsel claim based on counsel’s




                               27
deficiently informing petitioner of the consequences of his
guilty plea. 474 U.S. at 55. When addressing Strickland’s
prejudice prong, the Court did not focus on whether counsel’s
deficient performance caused the outcome of the proceeding
to change—i.e., the court did not speculate as to whether
petitioner would have been convicted had he gone to trial
instead of pleading—but instead asked “whether counsel’s
constitutionally ineffective performance affected the outcome
of the plea process.” Id. at 59. Because the appropriate focus
went to the process that led to petitioner forfeiting a
constitutional right, the Court held that the petitioner could
demonstrate prejudice if he could show a “reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Id.

       In Roe v. Flores-Ortega, the Court applied similar
reasoning when addressing the appropriate prejudice inquiry
for a petitioner alleging that counsel’s deficient performance
led him to forfeit his right to a direct appeal of his conviction.
528 U.S. 470, 475 (2000). The Court again framed the
inquiry in terms of the process leading up to the petitioner’s
decision to forego a judicial proceeding to which he was
constitutionally entitled, holding that the petitioner could
demonstrate prejudice if he could show that his counsel’s
ineffective performance led to his not pursuing an appeal that
he “otherwise would have taken.” Id. at 484. Because the
petitioner had been deprived of the proceeding altogether, the
Court explained that it would be “unfair to require a[] . . .
defendant to demonstrate that his hypothetical appeal might
have had merit” and a showing that “but for counsel’s
deficient conduct, he would have appealed” was all that
Strickland requires. Id. at 486.




                               28
       Most recently in Lafler, the Supreme Court confirmed
that this process-based analysis, focusing on whether a
petitioner lost his ability to exercise a constitutional
protection he otherwise would have invoked, is necessary to
evaluate prejudice for ineffective assistance claims alleging a
defect in the process leading up to a judicial proceeding. 566
U.S. at 169. In Lafler, the petitioner claimed ineffective
assistance when his counsel advised him against accepting a
guilty plea by erroneously insisting that the prosecution
would be unable to establish an element of the crime for
which he was charged. 556 U.S. at 161. Thus, Lafler
presented the inverse of Hill as, rather than being induced to
accept a guilty plea as a result of counsel’s ineffectiveness,
the petitioner in Lafler alleged that his counsel’s deficient
performance forced him to stand trial and receive a harsher
sentence than he would have had he accepted the plea. Id. at
163-64.

        The Court explicitly rejected the Government’s
argument that there could be no Strickland prejudice because
“[a] fair trial wipes clean any deficient performance by
defense counsel during plea bargaining,” and held that the
petitioner could show prejudice if he could demonstrate that
but for counsel’s ineffective assistance, “he and the trial court
would have accepted the guilty plea.” Id. at 174. Although
acknowledging that the “[t]he goal of a just result is not
divorced from the reliability of a conviction,” the Court in
Lafler made explicit the principle underlying its decisions in
Hill and Flores-Ortega—that when evaluating prejudice in
the context of a pre-trial error that changed the nature of the
subsequent proceedings, the “question is not the fairness or
reliability of the trial but the fairness and regularity of the
processes that preceded it, which caused the defendant to lose




                               29
benefits he would have received in the ordinary course but for
counsel’s ineffective assistance.” Id. at 169.

       Lafler requires us to revisit the prejudice analysis we
applied in Lilly. At the time Lilly was decided, it was
apparent that a Strickland prejudice inquiry was necessary for
certain claims of ineffective assistance that led to a
deprivation of pre-trial process rights, but it was not clear
how broadly the Court intended to apply the prejudice test it
announced in Hill and Flores-Ortega. While those cases
addressed the appropriate way to frame Strickland prejudice
when counsel’s ineffective assistance caused a defendant to
forego a judicial proceeding altogether—i.e., a trial in Hill
and a direct appeal in Flores-Ortega—they did not squarely
address the situation presented in Lilly, Lafler, and the case
before us here, where, despite counsel’s pre-trial ineffective
assistance, the defendant received, and ultimately was
convicted in, an error-free trial. In light of this ambiguity, we
did not extend Hill and Flores-Ortega to the circumstances
before us in Lilly, and reverted to the language the Court had
used in Strickland, that a finding of prejudice requires “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Lilly, 536 F.3d at 196 (quoting Strickland, 466
U.S. at 694).

       After Lafler, however, there is no longer any
ambiguity about the proper prejudice test in this situation.
Lafler makes clear that the process-based test of Hill and
Flores-Ortega is not limited to situations in which counsel’s
ineffectiveness prevented a judicial proceeding from
occurring at all, but also applies when the defendant
ultimately received a fair adjudication, so long as counsel’s
ineffectiveness affects not the propriety of the adjudicatory




                               30
proceeding itself, but “the fairness and regularity of the
processes that preceded it.” Lafler, 566 U.S. at 169. And
when Hill, Flores-Ortega, and Lafler are read together, there
is no question that where a defendant claims ineffective
assistance based on a pre-trial process that caused him to
forfeit a constitutional right, the proper prejudice inquiry is
whether the defendant can demonstrate a reasonable
probability that, but for counsel’s ineffectiveness, he would
have opted to exercise that right.

       We therefore revise our prejudice test set forth in
     15
Lilly, and turn to the dispositive question here: whether
Vickers has met his burden by establishing on this record a
reasonable probability that but for his counsel’s failure to
ensure a proper waiver of his Sixth Amendment right to be
tried before a jury, he would have exercised that right.

               c)    Application of the Proper Prejudice Test


          15
          Our holding regarding the appropriate prejudice
inquiry in this context, which merely aligns Lilly with the
Supreme Court’s subsequent decision in Lafler, does not
necessitate en banc review. As occurs from time to time, “a
panel of our Court may decline to follow a prior decision of
our Court without the necessity of an en banc decision when
the prior decision conflicts with a Supreme Court decision.”
United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009); see
also United States v. City of Philadelphia, 644 F.2d 187, 192
n.3 (3d Cir. 1980) (“As an inferior court in the federal
hierarchy, we are, of course, compelled to apply the law
announced by the Supreme Court as we find it on the date of
our decision.”).




                              31
       Applying this prejudice analysis to the facts of this
case, we conclude that Vickers has not met his burden.
Although counsel was deficient in failing to ensure that
Vickers had properly waived his right to a jury trial before
proceeding with a bench trial, the record is devoid of any
credible evidence that Vickers otherwise would have opted
for a jury trial and affirmatively indicates that he made an
informed, strategic decision to proceed with a bench trial after
numerous consultations with his counsel.

        Even though we review the state court’s legal
conclusions de novo, we continue to defer under AEDPA to
its factual and credibility findings, Jacobs, 395 F.3d at 100,
and here, the state court found Vickers’s counsel credible
when he testified that he and Vickers discussed the possibility
of a jury trial each time they spoke, that he explained to
Vickers that a jury trial would mean that “12 men and women
decide the facts of the case as opposed to a judge deciding the
facts,” and that even on the morning of the trial he reminded
Vickers that he was facing “serious charges” and could still
ask for a jury trial, but Vickers “indicated he wanted to go
forward.” App. 95, 98.

       Most importantly, counsel testified that he explained to
Vickers the strategic advantages he perceived in pursuing a
bench trial, i.e., he believed a bench trial was Vickers’s best
chance to be acquitted on the most serious charge he faced—
aggravated assault; it would be difficult for the
Commonwealth to prove that Vickers had the requisite intent
to commit aggravated assault based on just one punch; and,
when pursuing this theory, there would be a “tactical
advantage” to selecting a bench trial because a judge was
more likely than a jury to appreciate this “narrow legal issue.”
App. 107, 109. Counsel discussed this strategy with Vickers,




                              32
warned Vickers that there was risk inherent in choosing a
bench trial because the “courtroom can be a conservative with
personal injuries,” App. 95, and recommended nonetheless
that Vickers proceed by way of bench trial. Vickers’s
responses led his counsel to believe Vickers was aware of his
right to proceed by way of jury trial, that he “understood the
difference,” between a jury trial and a bench trial, App. 100,
and that he was choosing for strategic reasons to proceed with
a bench trial.

        The only evidence in the record to the contrary,
Vickers’s testimony that he repeatedly requested a jury trial
and did not know he had a right to a jury trial until he was
preparing his appeal, was deemed “not credible” by the
PCRA court. App. 176. Thus, although counsel erroneously
failed to ensure that Vickers waived on the record and, even
assuming counsel’s deficiency left Vickers unaware of the
requirement of juror unanimity, Vickers has not established
on this record a “reasonable probability” that, but for
counsel’s deficiency, Vickers would have elected to proceed
by way of jury trial. Accordingly, he has failed to
demonstrate the prejudice Strickland requires in this
circumstance, and his habeas petition must be denied.

IV.   Conclusion

      For the foregoing reasons, we will reverse the District
Court’s order granting Vickers a writ of habeas corpus and
remand the case for proceedings consistent with this opinion.




                             33
