                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              ______________

                    No. 17-3118
                  ______________

              EDWARD MITCHELL,

                              Appellant

                         v.

       SUPERINTENDENT DALLAS SCI;
    ATTORNEY GENERAL PENNSYLVANIA;
   DISTRICT ATTORNEY DAUPHIN COUNTY
              ______________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
            (D.C. Civ. No. 1-09-cv-02548)
       Honorable Yvette Kane, District Judge
                  ______________

    Submitted Under Third Circuit L.A.R. 34.1(a)
                  June 11, 2018

BEFORE: CHAGARES, GREENBERG, and FUENTES,
              Circuit Judges
                  (Filed: August 23, 2018)
                      ______________

Heidi R. Freese, Esq.
Federal Public Defender
Middle District of Pennsylvania
Frederick W. Ulrich, Esq.
Asst. Federal Public Defender
Tammy L. Taylor, Esq.
Staff Attorney
100 Chestnut Street, Suite 306
Harrisburg, PA 17101

   Attorneys for Appellant

Francis T. Chardo, Esq.
Ryan H. Lysaght, Esq.
Dauphin County Office of District Attorney
Dauphin County Courthouse
101 Market Street
Harrisburg, PA 17101

   Attorneys for Appellee

                     ______________

                OPINION OF THE COURT
                    ______________




                             2
GREENBERG, Circuit Judge.

                     I. INTRODUCTION

        Edward Mitchell, a prisoner in the custody of the
Commonwealth of Pennsylvania, appeals from an order denying
his petition for a writ of habeas corpus under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254. See Mitchell v. Walsh, No. 1:09-cv-02548, 2017 WL
3725503 (M.D. Pa. Aug. 29, 2017). Mitchell currently is
serving a sentence of life imprisonment following his
convictions at a joint trial with Karim Eley and Lester Eiland in
a Pennsylvania state court in 2001 for various offenses arising
from a robbery and a murder. Mitchell seeks relief on the
grounds that the admission at the trial of testimony of jailhouse
informants setting forth his co-defendant Lester Eiland’s out-of-
court jailhouse statements violated his rights under the
Confrontation Clause of the Sixth Amendment. The District
Court in the habeas corpus proceedings concluded that Eiland’s
statements to the informants were nontestimonial as recognized
by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354
(2004), and therefore their inclusion in testimony at the trial did
not violate his Confrontation Clause rights even though he could
not cross-examine Eiland regarding the statements.


        Mitchell has argued and continues to argue that the
District Court erred by applying Crawford because the AEDPA
requires assessment of whether a state court’s decision was
“contrary to, or involved an unreasonable application of, clearly
established Federal law,” 28 U.S.C. § 2254(d)(1), and the
Supreme Court decided Crawford on March 8, 2004, after his
trial and after the Superior Court of Pennsylvania affirmed his




                                3
conviction on direct appeal on September 22, 2003, in the last
state court proceeding dealing with the Sixth Amendment issue.
 Consequently, he points out that the Crawford principles were
not “clearly established” at the time the state courts were
considering the Sixth Amendment issue. Mitchell contends that
even if admission of the challenged statements would not create
a Confrontation Clause issue in a trial held today, he is entitled
to habeas corpus relief because, prior to Crawford, when his
case was being tried and was on direct appeal, the Confrontation
Clause would have been applied to bar the jailhouse testimony
with respect to Eiland’s statements.


        We have concluded that Mitchell, by focusing narrowly
on the “clearly established Federal law” language of 28 U.S.C.
2254(d)(1) and by relying on the law in effect at the time of his
trial and appeal, misstates the standard applicable to habeas
corpus review of a state court conviction in the federal courts.
Congress in section 2254(d) has made it a necessary, but not a
sufficient, condition for granting habeas corpus relief to a state
prisoner that a state court’s decision leading to his custody was
contrary to, or unreasonably applied, clearly established federal
law at the time that the state court made its decision. But even if
a petitioner in state custody makes that showing he has satisfied
only one requirement for the granting of his petition because the
AEDPA allows relief to be granted “only on the ground that [a
prisoner] is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis
added).      Accordingly, notwithstanding a state court’s
misapplication of federal law at trial a prisoner is not necessarily
entitled to relief in the light of “the longstanding rule that
federal courts will not entertain habeas petitions to correct errors
that do not undermine the lawfulness of a petitioner’s




                                 4
detention.” Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir.
2005). For the reasons we set forth below, we conclude that
Mitchell is not in custody pursuant to what is now recognized as
a violation of the Sixth Amendment attributable to the testimony
at the trial of the jailhouse informants which set forth Eiland’s
statements and therefore we will affirm the order of August 29,
2017, denying Mitchell’s petition for a writ of habeas corpus.


    II. FACTUAL AND PROCEDURAL BACKGROUND

       On August 10, 2001, at the joint trial of Mitchell and his
two co-defendants, Eley and Eiland, a jury convicted Mitchell of
second-degree murder, robbery, and conspiracy to commit
robbery in the July 2000 shooting death of Angel DeJesus, a taxi
driver, in Harrisburg, Pennsylvania. See Commonwealth v.
Mitchell, No. 782-2014, 2015 WL 7726738, at *1-2 (Pa. Super.
Ct. Jan. 12, 2015). Prior to the trial, Mitchell and Eley filed
unsuccessful motions to have their cases severed from those of
the other defendants and thus the trial was of all three
defendants.

        After extensive but ultimately unsuccessful state court
proceedings, Mitchell filed a petition for a writ of habeas corpus
in the District Court under 28 U.S.C. § 2254 on December 28,
2009, which he amended on October 19, 2010. 1 Mitchell’s
amended petition advanced three grounds for relief: (1) the state
trial court’s charge on reasonable doubt was constitutionally
defective; (2) the introduction of the informants’ testimony

1
  The federal habeas corpus proceedings were prolonged by
orders staying proceedings on Mitchell’s petition while his state
post-conviction relief applications were pending.




                                5
describing non-testifying co-defendant Eiland’s out-of-court
statements violated Mitchell’s rights under the Confrontation
Clause; and (3) the trial court deprived Mitchell of due process
of law when it denied his claim of actual innocence. At this
time, however, Mitchell limits his claim to the Confrontation
Clause issue and thus we do not address the other issues he set
forth in his petition.

       Mitchell argues that the testimony at the trial of two
jailhouse informants, Matthew LeVan and Steven Taylor,
violated his constitutional rights because they testified as to
Eiland’s out-of-court statements that implicated Mitchell in the
offenses and Mitchell did not have the opportunity to confront
Eiland regarding those statements. Though Eiland’s statements
did not mention Mitchell by name, Mitchell contends that in the
context of the joint trial Eiland’s statements implicated him in
the robbery and murder. Specifically, LeVan testified as
follows:


       Q. Now, if you can, describe for the jury the
       conversation you had with Lester Eiland while
       you were in the jail cell playing cards.

       A. He said about the sawed-off shotgun was used
       and a .380 pistol, and there was two other guns
       used and one was hidden in a brick close to where
       it happened at.
       Q. Did he say what kind of crime it was?
       A. Homicide
       Q. Or began as?
       A. Homicide—no, it was a robbery.
       Q. Did he say what happened?




                               6
       A. He said they—they, as in whoever was with
       him—he didn't say the names of those people—
       when he went up to them, it was supposed to be a
       robbery, and he was—he’s the one that shot him,
       but he didn't mean to do it. It was the other two's
       idea or something like that, in that sense.

App. 225.

Taylor testified, referring to the substance of Eiland’s
statements, that “they were there to rob a cab driver, and
I guess with different things you did or whatnot during
the evening, somewhere, somehow, something went
wrong and whatnot. Somebody ended up dead from
that.” App. 239.

        Mitchell claims that these jailhouse witnesses’ references
to “they” and the murder being “the other two’s idea” tied him
to the robbery and provided key evidence to establish his
culpability for the offenses. Mitchell argues that the failure to
exclude or properly redact the references to his involvement in
the offenses from the co-defendant’s statements to which the
informants referred violated his confrontation rights as
recognized in Bruton v. United States, 391 U.S. 123, 88 S.Ct.
1620 (1968), Richardson v. Marsh, 481 U.S. 200, 107 S.Ct.
1702 (1987), and Gray v. Maryland, 523 U.S. 185, 118 S.Ct.
1151 (1998). He unsuccessfully raised this claim on direct
appeal in the Superior Court of Pennsylvania where he also
unsuccessfully challenged the trial court’s order denying his
pretrial motion to sever his trial from that of his co-defendants.
See Commonwealth v. Mitchell, No. 1658 MDA 2001, slip op.




                                7
at 6 (Pa. Super. Ct. Sept. 22, 2003). 2

        Mitchell understandably relies on our decision in Eley v.
Erickson, 712 F.3d 837 (3d Cir. 2013), in which we granted
habeas corpus relief to his co-defendant, Kariem Eley, whom the
jury also convicted at the joint trial. We granted Eley’s petition
because we believed that there had been a Bruton violation in
his case by reason of the admission of testimony describing
Eiland’s statements at the trial. In Eley, we held that the state
court’s order denying a motion to sever the trials was contrary to
federal law clearly established by Bruton, Richardson, and Gray,
Supreme Court’s precedent on the Confrontation Clause. 712
F.3d at 859. Focusing in particular on Eiland’s statement that it
was “the other two” defendants who had the “idea” to rob the
victim, in Eley we explained:

              Although we are mindful of the deference
       that we owe to the Commonwealth’s courts, we
       are constrained to conclude that fairminded jurists
       could not disagree that the Superior Court’s
       decision is inconsistent with Richardson and
       Gray. We have no doubt that the jury inferred, on
       the basis of Eiland’s confession alone, that Eley
       was one of ‘the other two’ whose ‘idea’ it was to
       rob DeJesus. . . . Indeed, a juror who wondered to
       whom ‘the other two’ referred . . . ‘need[ed] only

2
  The Pennsylvania Supreme Court denied Mitchell’s petition
for review of the Superior Court decision on June 29, 2014. The
Pennsylvania courts subsequently have denied four separate
petitions for post-conviction relief that Mitchell has filed. But
none of the state post-conviction proceedings addressed the
Confrontation Clause issue presented here.




                                8
       lift his eyes to [Eley and Mitchell], sitting at
       counsel table, to find what ... seem[ed] the
       obvious answer,’ Gray, 523 U.S. at 193, 118 S.Ct.
       1151.

Id. at 859 (alterations in original).

Mitchell has argued in these habeas corpus proceedings that our
holding in Eley that the introduction of testimony making
reference to Eiland’s statements was unconstitutional applies
with the same force here and therefore on that basis he is
entitled to habeas corpus relief.

       The District Court referred Mitchell’s petition to a
magistrate judge for a report and recommendation which she
issued on December 12, 2016, recommending that the Court
deny Mitchell’s petition. Mitchell filed objections to the report
and recommendation but the Court overruled the objections by
adopting the report and recommendation on August 29, 2017, in
a memorandum opinion. The Court concluded that, even
assuming Mitchell could make the threshold showing under 28
U.S.C. § 2254(d)(1) that the state court’s denial of his
Confrontation Clause claim was “contrary to, or involved an
unreasonable application of, clearly established Federal law”
under Bruton, he was not entitled to relief because the Sixth
Amendment law had evolved in Crawford after his trial and
there had not been a Confrontation Clause violation under the
updated standards. 3

3
  The Commonwealth initially argued that Mitchell had not
exhausted his Confrontation Clause claim in the state courts, as
required to proceed under 28 U.S.C. § 2254. However, by the
time the magistrate judge had made her report and




                                 9
        The germane development of the law in Crawford was
that the Sixth Amendment Confrontation Clause was recognized
as guarding against testimonial statements made by an
individual in anticipation that the person to whom he makes the
statements will be called as a witness as well as formal
statements made under oath and statements made to law
enforcement officers seeking information about past events.
After the District Court denied his petition, Mitchell, to whom
that Court granted a certificate of appealability, filed this timely
appeal challenging the application of Crawford to his
Confrontation Clause claim.


III. STATEMENT OF JURISDICTION AND STANDARD
                  OF REVIEW

       The District Court had jurisdiction over Mitchell’s
petition for a writ of habeas corpus under 28 U.S.C. §§ 2254 and
2241. We have jurisdiction over this appeal from the denial of
an application for a writ of habeas corpus pursuant to 28 U.S.C.
§§ 1291 and 2253. Inasmuch as the Court did not hold an
evidentiary hearing on Mitchell’s petition, our review is plenary.
 Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009).

       The AEDPA imposes a “highly deferential standard” on
federal habeas corpus review of state court proceedings. That
standard “demands that [such] decisions be given the benefit of

recommendation, the Commonwealth had conceded that the
exhaustion requirement had been satisfied with respect to the
Confrontation Clause claim and that the claim was therefore not
procedurally defaulted. See App. 961, 979.




                                10
the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855,
1862 (2010). A federal court cannot grant habeas relief based
on a claim that was “adjudicated on the merits” in a state court
unless that adjudication “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 “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).



                       IV. DISCUSSION

        As was the District Court, we are satisfied that Mitchell
established that the Pennsylvania Superior Court, in the last state
court decision to address the Sixth Amendment issue,
unreasonably applied what was then clearly established federal
law when it upheld the trial court’s ruling refusing to sever
Mitchell’s trial from that of the other defendants before
admitting the testimony referencing Eiland’s out-of-court
statements that implicated Mitchell in the offenses. Indeed, in
Eley we considered these statements and their effect on Eley,
who was in Mitchell’s position, and concluded that the
admission of the statements violated the Confrontation Clause
and that the error “substantially influenced the jury’s verdict.”
Eley, 712 F.3d at 861 (citing Bruton, 391 U.S. at 129, 88 S.Ct. at
1624). Thus the admission of the testimony was not a small
matter. But the question that we now must address is different
for it is whether the District Court in considering the habeas
corpus petition correctly considered case law authority
subsequent to that on which we relied in Eley in considering
whether Mitchell was “in custody in violation of the




                                11
Constitution or laws or treaties of the United States” under 28
U.S.C. § 2254(a). That recent authority is Crawford and our
decision in United States v. Berrios, 676 F.3d 118 (3d Cir.
2012), in neither of which we discussed Eley.

        There is no doubt but that if a habeas corpus petitioner
shows that a state court decision leading to his custody was
contrary to, or an unreasonable application of, clearly
established federal law under 28 U.S.C. § 2254(d), he often will
be entitled to relief, though not “always and automatically.”
Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir. 2012). While it
is necessary for a state prisoner to satisfy § 2254(d) to make a
successful habeas corpus claim, he cannot obtain habeas corpus
relief unless he also makes a showing under § 2254(a) that he is
being held in custody in violation of the Constitution, laws, or
treaties of the United States. Id. “[Section] 2254 relief thus is
available only to state prisoners who currently are being held in
violation of an existing constitutional right, not to inmates who
at one point might have been able to show that [under] a since-
overruled Supreme Court or lower court precedent [they] would
have [been entitled to] relief.” Desai v. Booker, 538 F.3d 424,
428 (6th Cir. 2008); see also Dennis v. Sec’y, Pennsylvania
Dep’t of Corr., 834 F.3d 263, 349 n.6 (3d Cir. 2016) (Jordan, J.,
concurring) (explaining importance of “understand[ing] the
interplay between §§ 2254(a) and 2254(d)”).

       This case involves the evolution of the law inasmuch as
regardless of what happened at his trial or the state of the law at
that time, Mitchell is unable to show that he is being held in
violation of an existing right by reason of the informants’
testimony. In Crawford, the Supreme Court explained that the
“primary object” of the Confrontation Clause is to protect
defendants from testimonial hearsay, including statements taken




                                12
by law enforcement from witnesses against the accused. 541
U.S. at 53, 124 S. Ct. at 1365. We have made clear that the
Supreme Court, building on Crawford, has gone on to hold “that
the Confrontation Clause protects the defendant only against the
introduction of testimonial hearsay statements, and that
admissibility of nontestimonial hearsay is governed solely by the
rules of evidence.” Berrios, 676 F.3d at 126 (emphasis in
original) (citing Davis v. Washington, 547 U.S. 813, 823–24,
126 S. Ct. 2266, 2274 (2006), Michigan v. Bryant, 562 U.S. 344,
352-53, 131 S.Ct. 1143, 1152–53 (2011), and Whorton v.
Bockting, 549 U.S. 406, 419–20, 127 S.Ct. 1173, 1182-83
(2007)).

       In Berrios, we declined to apply the Confrontation Clause
to bar introduction of jailhouse testimony not unlike the
testimony with respect to Eiland’s statements involved in this
case because in light of the developing Supreme Court
jurisprudence we indicated that “where nontestimonial hearsay
is concerned, the Confrontation Clause has no role to play in
determining the admissibility of a declarant’s statement.” 676
F.3d at 126. 4 Though in some circumstances it might not be
4
  Mitchell argues that application of Crawford and its progeny
to his petition violates the antiretroactivity principles of Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). But Teague does
not affect our analysis for two reasons: First, Mitchell has not
challenged the District Court’s observation that Crawford was
decided before his conviction became final for purposes of a
Teague analysis, and thus it would not be necessary to apply
Crawford retroactively to consider its impact on his
Confrontation Clause claim. See Mitchell, 2017 WL 3725503,
at *5. Second, Teague bars application of new rules of criminal
procedure to collaterally attack convictions in state courts, but




                                13
clear if a statement is testimonial or nontestimonial for Crawford
purposes this is not such a case because Mitchell concedes,
correctly, that Eiland’s statements were not testimonial.

        Berrios and the Supreme Court precedent on which it
relies foreclose Mitchell’s claim for relief. Even if Mitchell
shows that the Pennsylvania Superior Court’s decision affirming
his conviction was contrary to what was clearly established
Federal law at the time the court made the decision, that
showing alone would not entitle him to habeas corpus relief
because he also must show that his confinement violates the
Constitution, laws, or treaties of the United States, see 28 U.S.C.
§ 2254(a), a determination that takes into account all relevant
precedent. In this regard, notwithstanding Eley we are obliged
to consider Crawford because it is a relevant precedent and the
respondent squarely has raised the case even though we did not

has no relevance where consideration of a new rule leads to
rejection of a habeas corpus claim. In such a case, considering
the new rule and refusing to upend a conviction based on prior
standards serves the very aims of finality and repose that the
Teague rule safeguards. See Lockhart v. Fretwell, 506 U.S. 364,
373, 113 S. Ct. 838, 844 (1993); Flamer v. State of Del., 68 F.3d
710, 725 n.14 (3d Cir. 1995) (“Teague only applies to a change
in the law that favors criminal defendants.”) (emphasis in
original). Cf. United States v. Peppers, 2018 WL 382713, at
*13 (3d Cir., Aug. 13, 2018) (holding that, for purposes of
applying the categorical approach to assess prior convictions,
post-sentencing Supreme Court precedent explaining the Armed
Career Criminal Act can be considered once an applicant for
post-conviction relief has satisfied the gatekeeping requirements
of AEDPA codified at 28 U.S.C. § 2255(h)).




                                14
discuss Crawford when we granted relief to Eley. 5

        It is appropriate to rely on current constitutional standards
in evaluating a habeas corpus petition because, “as a practical
matter, correcting violations of extant constitutional standards is
all that the statute ever could meaningfully require of a state –
at least when it comes to a constitutional challenge to the
admission of evidence.” Desai, 538 F.3d at 428. It would be
anomalous to grant habeas corpus relief to Mitchell because of
the introduction of evidence that would be admissible under
current constitutional standards at a retrial notwithstanding the
previous Confrontation Clause error. After all, if we granted the
petition we would do so subject to the condition that the
prosecution at its option could retry Mitchell. See Eley, 712
F.3d at 862. 6
                        V. CONCLUSION

       We sum up by saying that inasmuch as under Crawford,
there was not a violation of the Confrontation Clause due to the
admission of the informants’ testimony with respect to Eiland’s
statements Mitchell is not being held in custody in violation of

5
  In similar circumstances, we already have noted that Eley is
not dispositive of whether Crawford applies to bar relief because
“the parties in Eley did not mention, and the Eley Court did not
consider or rule on, the Crawford issue.” Waller v. Varano, 562
F. App’x 91, 95 n.5 (3d Cir. 2014).

6
 Sometimes when habeas corpus relief is granted it may not be
permissible to retry the petitioner. But we see no reason why if
we were reversing on the Confrontation Clause issue the case
would come within that category. See Burks v. United States,
437 U.S. 1, 16-18, 98 S.Ct. 2141, 2150-51 (1978).




                                 15
the Constitution laws, or treaties of the United States and
accordingly he is not entitled to a writ of habeas corpus.
Therefore, we will affirm the order entered on August 29, 2017,
denying Mitchell’s petition for habeas corpus.




                              16
