                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2001

Appel v. Horn
Precedential or Non-Precedential:

Docket 99-9003




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Filed May 3, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-9003

MARTIN DANIEL APPEL

v.

MARTIN HORN, COMMISSIONER PENNSYLV ANIA
DEPARTMENT OF CORRECTIONS; JAMES S. PRICE,
SUPERINTENDENT OF THE STATE CORRECTIONAL
INSTITUTION AT GREENE AND JOSEPH MAZURKIEWICZ,
SUPERINTENDENT OF THE STATE CORRECTIONAL
INSTITUTION AT ROCKVIEW,
       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-02809)
District Judge: Hon. William H. Yohn, Jr.

Argued October 5, 2000

Before: BECKER, Chief Judge, SLOVITER and
GREENBERG, Circuit Judges

(Filed May 3, 2001)

       John M. Morganelli (Argued)
       Office of District Attorney of
        Northampton County
       Easton, PA 18042

        Attorney for Appellants
        Billy H. Nolas (Argued)
        David W. Wycoff
        Michael Wiseman
        Defender Association of Philadelphia
        Federal Capital Habeas Corpus Unit
        Philadelphia, PA 19106

         Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The Commonwealth of Pennsylvania appeals from the
order of the District Court dated May 21, 1999 granting the
Petition of Martin Daniel Appel for a Writ of Habeas Corpus.
The District Court granted the writ of habeas corpus after
it determined that Appel had been constructively denied his
Sixth Amendment right to counsel in violation of the
Supreme Court's decision in United States v. Cronic, 466
U.S. 648 (1984). The District Court vacated Appel's
conviction and sentence, but stayed execution of the writ
for 180 days in order to permit the Commonwealth to
provide Appel a new trial within that time.

I.

FACTS

The parties agree that the District Court's Memorandum
and Order of May 21, 1999 accurately sets forth the factual
background, and we will accordingly accept these facts as
accurate and summarize them here, supplemented by other
uncontested facts of record.

On June 6, 1986, Appel and Stanley Hertzog, pursuant
to a prearranged plan, robbed the First National Bank of
Bath in East Allen Township, Pennsylvania. Appel killed
two tellers and a bank official, and both r obbers shot at
others, injuring two other persons. Appel and Hertzog were
arrested later that day and charged with murder, robbery,

                                  2
and related crimes. On June 9, 1986, while being held in
prison, Appel confessed to certain law enfor cement officers.1

On June 10, 1986, Appel filed an application for
appointment of counsel with the Public Defender . It is the
period between June 10, 1986 and June 20, 1986 that is
critical to the writ of habeas corpus. On June 10, 1986, the
Public Defender assigned Ellen Kraft and Lor enzo Crowe to
serve as Appel's attorneys and they enter ed appearances on
Appel's behalf. When Kraft and Crowe visited Appel in the
Northampton County Prison on June 11, 1986, however ,
Appel immediately told them that he did not want them to
serve as his attorneys. Kraft later testified that Appel had
only requested a Public Defender after being told that he
would need a lawyer in order to receive visitors while he
was in that prison.

Kraft and Crowe nevertheless accompanied Appel to a
hearing before the trial judge on June 12, 1986. During
that hearing, the trial judge referred to Kraft and Crowe as
Appel's "counsel" and they did not dispute this
characterization. At the hearing, Appel told the judge, "I
would like to represent myself. I feel I am best able to
project my own thoughts and express my desires speaking
for myself in the case." App. II at 14. After being told the
charges against him and the possible penalties he faced,
Appel again told the judge, "My choice is to r epresent
myself. I have no objection to [Kraft and Cr owe] as
advisors." App. II at 32-33. He explained that having
counsel would "slow down the wheels of justice, the
prosecution's case against me." App. II at 33. The judge did
not accept Appel's waiver of counsel at that time, stating
that before he did so, he would order Appel to undergo a
psychiatric examination in order to assist the judge in
determining Appel's competency to waive counsel.

On June 17, 1986, Appel was examined by Dr. Janet
Schwartz, a psychiatrist on the staff of Northampton
County Mental Health and Mental Retardation Unit. Before
that examination, Dr. Schwartz met with John Weaver, a
social worker on that staff, who had interviewed Appel
_________________________________________________________________

1. The record before us shows no details of this confession, and it is not
at issue.

                               3
following the crime and had received fr om him some
background information. Dr. Schwartz received no
information from either Kraft or Cr owe and, after spending
an hour with Appel, found Appel to be competent to waive
his right to counsel. Dr. Schwartz's r eport to the court
stated, "Mr. Appel appears to have made a rational and well
thought out decision that he would like to r eceive the death
penalty and would like this to occur as soon as possible.
On the basis of my examination I feel that he is competent
to make this decision and to refuse counsel." App. II at 154.
On appeal, Appel makes the point that his competency
evaluation was only Dr. Schwartz's second competency
evaluation in a felony case, and her first capital one. She
was, however, board certified in psychiatry and neurology.

The judge held a second hearing on June 20, 1986. The
judge questioned Appel again, and Appel repeated his
intention to proceed without an attorney. Kraft and Crowe
were present at this hearing, but pr ovided no information
relevant to Appel's competency and specifically advised the
court in response to its inquiry that they had nothing to
put on the record at that time. They did not challenge the
psychiatrist's conclusion. The judge then accepted Appel's
waiver of counsel based on Dr. Schwartz's r eport and
appointed Kraft and Crowe as standby counsel pursuant to
Pa. R. Crim. P. 318(d) (renumber ed Rule 121(D) and
amended March 1, 2000, effective April 1, 2001).2

Appel pled guilty on July 20, 1986 to three counts of
criminal homicide, two counts of attempted homicide, one
count of robbery, two counts of aggravated assault and
various other charges. See Commonwealth v. Appel, 517 Pa.
529, 533, 539 A.2d 780, 781 (1988) (hereafter Appel I).
Under Pennsylvania law, following the defendant's plea of
guilty to criminal homicide, the court fixes the degree of
guilt after a hearing. In Appel's case, the hearing was held
August 7 through August 9, 1986. At that hearing, Appel
reiterated his waiver of counsel and stated, inter alia,
_________________________________________________________________

2. Pa. R. Crim. P. 318(d) stated, "When the defendant's waiver of counsel
is accepted, standby counsel may be appointed for the defendant.
Standby counsel shall attend the proceedings and shall be available to
the defendant for consultation and advice."

                               4
       I would like to state for the record, that during the
       entire proceedings and/or hearings in this matter, I
       have been very much aware of what is going on. That
       is to say, I am rational, sane, competent and alert. I
       have had plenty of opportunities to discuss and
       consult with stand-by counsel, Mr. Cr owe and Ms.
       Kraft. And I have consulted with them on various
       occasions.

       I feel that by cooperating with the prosecution and by
       pleading guilty to all charges, that I have done the
       honorable thing. And, I hope that I have set a
       precedent here today for all futur e defendants in so
       doing.

       The only mitigating factors that I wish to enter into the
       record, would be:

       One, that I have had no prior felony convictions
       against me; and,

       Two, that I was gainfully employed at the time of my
       arrest.

       I would also like to say that I will not appeal your
       decision or any decisions that you made. Further more,
       I trust that the American Civil Liberties Union will not
       interfere with this matter and that no other outside
       legal aid groups will make any appeal [on] my behalf.

Commonwealth v. Appel, 547 Pa. 171, 182, 689 A.2d 891,
896 (1997) (brackets in original) (quoting Degr ee of Guilt
Hearing Tr. 8/9/86, at 367) (her eafter Appel II).

The trial court found Appel guilty of three counts of first
degree murder for the deaths of the thr ee bank employees.
See id.

On August 19, 1986, after the degree of guilt hearing,
Appel was examined at the request of Kraft and Crowe by
Dr. Paul Kenneth Gross, another psychiatrist. Dr. Gross
found "no evidence of any psychosis, sever e depression,
agitation or paranoia," App. II at 71, and stated in his
written report that there was "no evidence that [Appel] was
suffering from any mental disease or defect at the time of
the crime and that, at that time, he was fully awar e of his

                               5
behavior, could appreciate the natur e and quality of it, and
knew the wrongfulness of his behavior." App. II at 71.

At sentencing, Appel again waived his right to counsel
and requested that he be sentenced to death. The court
imposed three sentences of death on September 3, 1986.
Appel did not file any post-verdict motions but the
Pennsylvania Supreme Court reviewed Appel's conviction
and sentence based on an automatic direct r eview, see 42
Pa. Cons. Stat. Ann. S 9711(h), and affir med, finding that
"the evidence supports beyond a reasonable doubt the trial
court's findings that defendant was guilty of thr ee counts of
first degree murder." Appel I, 517 Pa. at 536, 539 A.2d at
783.

Governor Tom Ridge signed Appel's death warrant on
February 28, 1995, which set the execution date for the
week of April 4, 1995. However, shortly after the death
warrant was signed, Appel requested counsel andfiled a
petition under Pennsylvania's Post-Conviction Relief Act
("PCRA"), 42 Pa. Cons. Stat. Ann. S 9541 et seq., in which
Appel argued, among other things, that he was mentally ill
and incompetent during the 1986 proceedings r esulting in
his guilty plea and death sentence, and that he was denied
effective assistance of counsel during the 1986 proceedings.

The PCRA trial court conducted hearings from May 6 to
19, 1995. At these hearings, Appel presented a number of
psychologists and physicians who examined Appel eight or
nine years after the murders. They testified that he had
suffered from Graves' disease, a for m of hyperthyroidism,
during the summer of 1986. This condition is characterized
by an enlarged thyroid, a rapid pulse, and increased
metabolism due to excessive thyroid secr etion. Appel's
experts testified that the Graves' disease caused him to
become paranoid and delusional. He told them that the
bank robbery had been part of a CIA mission to eliminate
CIA "moles" and that he was bound to keep his mission
secret. Appel had also repeatedly told them that he was
part of a "special operations" unit of the military. See, e.g.,
PCRA Tr. 5/6/95, at 23-37 (testimony of Dr. James
Merikangas); PCRA Tr. 5/8/95, at 355-73 (testimony of Dr.
Henry Dee); PCRA Tr. 5/12/95, at 35-42 (testimony of Dr.
Frank Dattilio); PCRA Tr. 5/16/95, at 20-55 (testimony of

                               6
Dr. Jethro Toomer). Appel's mother , girlfriend, and other
acquaintances corroborated that Appel had acted strangely
in 1986.

In support of Appel's ineffective assistance of counsel
claim, which Appel based on the failure of Kraft and Crowe
to investigate Appel's mental illness in 1986 that allegedly
would have led them to discover his mental illness from his
family, friends, and employment records, Appel presented
Kraft and Crowe as witnesses at the PCRA hearing. They
testified that they did not consider themselves to be Appel's
counsel at either the June 12, 1986 or June 20, 1986
hearings, and never considered themselves to be his
counsel. Kraft testified that "Mr. Appel waived counsel from
day one." PCRA Tr. 5/12/95, at 162 (testimony of Ellen
Kraft). She stated that they refrained fr om investigating
Appel's background because "we were not his attorneys."
PCRA Tr. 5/12/95, at 165. Crowe also testified that no
investigation was made because "[w]e wer e, I felt that we
were standby counsel. I didn't think [investigation] was
necessary." PCRA Tr. 5/15/95, at 9 (testimony of Lorenzo
Crowe).

The Commonwealth introduced evidence that Appel's
motive for the robbery was to get money fast, and that he
had rational reasons for wanting to plead guilty and be
executed. Specifically, the Commonwealth intr oduced
excerpts of an interview Appel gave in 1987 for a television
documentary entitled "In the Mind of a Mur derer," in which
he admitted that his motive for the crimes was to get
money and kill potential witnesses. The Commonwealth
also introduced a transcript of a taped interview with Appel
in 1993 in which he explained that he robbed the bank to
get money for his girlfriend, sought the death penalty so
that she could get the insurance proceeds, enjoyed being in
control of the court proceedings and assisting the
Commonwealth, and got the idea to use Graves' disease as
the basis of an appeal from a former death row inmate. See
Appel II, 547 Pa. at 195, 689 A.2d at 902-03.

The trial court denied Appel's PCRA petition on June 14,
1995. The Pennsylvania Supreme Court later affirmed this
denial. See Appel II, 547 Pa. 171, 689 A.2d 891. Appel then
filed a Petition for a Writ of Habeas Corpus pursuant to 28

                                7
U.S.C. S 2254 in the United States District Court for the
Eastern District of Pennsylvania. The District Court granted
the writ on May 21, 1999, but stayed the execution of the
writ for 180 days in order to permit the Commonwealth to
provide Appel a new trial. See Appel v. Hor n, No. 97-2809
(E.D. Pa. May 21, 1999) (hereafter "District Court
Memorandum").3 The Commonwealth filed a timely appeal.

II.

DISCUSSION

A. Standard of Review

The Commonwealth argues that the District Court erred
in failing to apply the standards contained in the
Antiterrorism and Effective Death Penalty Act ("AEDPA"),
Pub. L. No. 104-132, 110 Stat. 1214 (1996). Because
Appel's habeas petition was filed after April 24, 1996, the
effective date of AEDPA, AEDPA applies here.

AEDPA precludes habeas relief on a"claim that was
adjudicated on the merits in State court proceedings"
unless the petitioner has shown that the state court
proceedings "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supr eme Court of the
United States; or . . . resulted in a decision that was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court pr oceeding." 28
U.S.C. S 2254(d). Factual issues that the state court
determined are presumed to be corr ect, and the burden is
on the petitioner to rebut that presumption by clear and
convincing evidence. See 28 U.S.C. S 2254(e)(1). AEDPA
"increases the deference federal courts must give to the
factual findings and legal determinations of the state
courts." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000),
cert. denied, 2001 WL 185125 (U.S. April 16, 2001).
_________________________________________________________________

3. The District Court's opinion is unpublished and appears in App. I as
Exhibit A. It will be referred to her e as "District Court Memorandum"
with the appropriate page citation.

                               8
The Supreme Court recently clarified how these
standards should be interpreted in its decision in Williams
v. Taylor, 529 U.S. 362 (2000), wher e it considered a
federal habeas claim in which petitioner Williams
contended that he was denied effective assistance of
counsel. With respect to legal deter minations made by the
state court, the Williams Court explained that the "contrary
to" and "unreasonable application" clauses in S 2254(d)(1)
should be viewed independently. Id. at 405. A state court
decision will be "contrary to" Supreme Court precedent if it
is "substantially different from the relevant precedent." Id.
A state court decision will be an "unreasonable application"
if (1) "the state court identifies the corr ect governing legal
rule from [the] Court's cases but unr easonably applies it to
the facts of the particular state prisoner's case"; or (2) "the
state court either unreasonably extends a legal principle
from our precedent to a new context wher e it should not
apply or unreasonably refuses to extend that principle to a
new context where it should apply." Id. at 407. The Court
held that Williams was entitled to habeas r elief because the
state supreme court's decision was both "contrary to" and
involved an "unreasonable application" of federal law clearly
established in Strickland v. Washington , 466 U.S. 668
(1984). Much of the inquiry since Williams has focused on
the application of one or both of these clauses. See, e.g.,
Werts, 228 F.3d 178.

However, by its own terms S 2254(d) applies only to
claims already "adjudicated on the merits in State court
proceedings." It follows that when, although properly
preserved by the defendant, the state court has not reached
the merits of a claim thereafter presented to a federal
habeas court, the deferential standards pr ovided by AEDPA
and explained in Williams do not apply. See Weeks v.
Angelone, 176 F.3d 249, 258 (4th Cir . 1999), aff 'd, 528
U.S. 225 (2000) ("When a petitioner has pr operly presented
a claim to the state court but the state court has not
adjudicated the claim on the merits, however , our review of
questions of law and mixed questions of law and fact is de
novo."); Fisher v. Texas, 169 F .3d 295, 300 (5th Cir. 1999)
(declining to apply S 2254(d)'s deferential standards
because the Texas state courts had dismissed petitioner's
claim on procedural grounds rather than on its merits);

                               9
Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998) ("A
prerequisite for applying [S 2254(d)] is that the state court
adjudicated the issue before us on the merits.").

In such an instance, the federal habeas court must
conduct a de novo review over pure legal questions and
mixed questions of law and fact, as a court would have
done prior to the enactment of AEDPA. See McCandless v.
Vaughn, 172 F.3d 255, 260 (3d Cir . 1999). However, the
state court's factual determinations ar e still presumed to be
correct, rebuttable upon a showing of clear and convincing
evidence. See 28 U.S.C. S 2254(e)(1).

The District Court recognized that AEDP A was applicable
to Appel's habeas petition. Because the District Court's
opinion was filed before the Supreme Court's opinion in
Williams v. Taylor, the District Court proceeded under the
interpretation of AEDPA that this court applied in its
decision in Matteo v. Superintendent, SCI Albion , 171 F.3d
877 (3d Cir. 1999) (en banc). Nevertheless, nothing in
Williams would change the District Court's determination
that the AEDPA deference standard is inapplicable in
Appel's habeas proceeding.

The District Court first determined that"the claim at the
center of Appel's habeas petition, [i.e.] that he was
constructively denied his Sixth Amendment right to the
assistance of counsel during the time before the trial court
accepted his waiver of counsel," was presented to the
Pennsylvania Supreme Court and therefor e Appel
exhausted his state court remedies. District Court
Memorandum at 12. In fact, the Pennsylvania Supr eme
Court expressly recognized that it must r esolve "[w]hether
Appel is entitled to relief because he was denied assistance
of counsel during the original trial court pr oceedings."
Appel II, 547 Pa. at 184, 689 A.2d at 897. However, the
Pennsylvania Supreme Court's analysis of this claim always
characterized the claim as alleging ineffective assistance of
counsel, and not constructive denial of counsel. The two
claims, of course, are different. The claim of ineffective
assistance of counsel must be evaluated from a federal
constitutional basis under the standards set forth in
Strickland v. Washington, 466 U.S. 668 (1984). The
constructive denial of counsel analysis, on the other hand,

                               10
stems from the Supreme Court's decision in United States
v. Cronic, 466 U.S. 648 (1984).

In rejecting Appel's PCRA petition, the Pennsylvania
Supreme Court described Appel's claim as one for
ineffective assistance of counsel asserting that his "stand-
by counsel were deficient because they: (1) did not
investigate Appel's background; (2) spoke to no one who
knew Appel; (3) did not obtain records about Appel; and (4)
provided no information about Appel's alleged history of
mental illness to the court-appointed psychiatric experts or
to the court itself." Appel II, 547 Pa. at 198, 689 A.2d at
904. Then, the Court, relying on its pr ecedent in
Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167
(1994), held that "claims of ineffective assistance of counsel
are not cognizable during post-trial pr oceedings, when the
defendant has previously insisted on repr esenting himself."
Appel II, 547 Pa. at 198, 689 A.2d at 904 (emphasis added).

Nevertheless, the Court considered the substance of
Appel's claim and rejected "Appel's ar gument that stand-by
counsel must ignore the pleadings of their criminal
defendant clients and undertake an exhaustive survey of
the client's personal background in an attempt to establish
incompetency." Id. at 202, 689 A.2d at 906. The Court
accordingly concluded that Appel's standby counsel did not
act unreasonably in respecting their client's wishes not to
investigate his competency.

The District Court recognized that because the
Pennsylvania Supreme Court recharacterized Appel's claim
as arguing that "stand-by counsel" wer e ineffective and
consistently referred to Kraft and Cr owe as only "stand-by
counsel," it failed to adjudicate Appel's denial of counsel
claim on the merits. See District Court Memorandum at 14-
15. As the District Court stated, "[t]he state courts thus
condoned Kraft's and Crowe's conduct based on the trial
court's post-hoc finding that Appel was competent, when
the relevant questions were whether they were counsel or
stand-by counsel prior to June 20, 1986, and what they
were obligated to do when faced with a potentially
incompetent client on June 12, 1986, who might be unable
to make the rational, strategic choices which Pennsylvania
law accords to criminal defendants (including waiver of

                               11
counsel), and for whom a competency hearing had been
scheduled by the trial judge for June 20, 1986." Id. at 15-
16.

Our reading of the Pennsylvania Supreme Court's opinion
leads us to agree with the District Court that the
Pennsylvania Supreme Court "never consider ed Appel's
claim that the actions of Kraft and Crowe fr om June 12,
1986, to June 20, 1986, constituted a constructive denial
of counsel." Id. at 16. As the District Court stated, the
Pennsylvania Supreme Court "failed to addr ess Appel's
arguments that Kraft and Crowe wer e actually his counsel
during the time leading up to the trial court's competency
hearing." Id. While the allegations that Crowe and Kraft
failed to investigate Appel's background ar e relevant to
Appel's habeas claim before us, their r elevancy is not in the
context of ineffective assistance of counsel, as the
Pennsylvania Supreme Court treated them, but in the
constructive denial of counsel, the issue that the state
courts did not consider. It is informative that throughout its
opinion, the Pennsylvania Supreme Court failed to cite to
Cronic, the relevant Supreme Court case on constructive
denial of counsel.

It follows, as the District Court held, that "AEDPA's
standards are inapplicable to Appel's constructive denial of
counsel claim, and this court must examine, without
`special heed to the underlying state court decision,'
whether Appel was constructively denied his Sixth
Amendment right to counsel during the time befor e the trial
court accepted his waiver of counsel." District Court
Memorandum at 17. Therefore, the District Court did not
err by conducting a de novo review of this claim. We will
conduct a plenary review over questions of law and mixed
questions of law and fact.4
_________________________________________________________________

4. We take note that the District Court held in the alternative that
Appel's claim could satisfy the requirements of S 2254(d), because the
state court decision was an "unreasonable application" of clearly
established federal law as determined by the Supreme Court. See
District Court Memorandum at 17 n.15. While this analysis exemplifies
the District Court's thoroughness, we see no r eason to consider it as we
have already held that that clause of S 2254(d) does not apply here.

                               12
B. The Issue Before the Habeas Court

The Commonwealth argues that the District Court erred
in analyzing the merits of Appel's claim under the Supreme
Court's decision in Cronic, and contends that it should
instead have analyzed Appel's claim pursuant to Strickland.
In Cronic, counsel representing the defendant indicted on
federal mail fraud charges withdrew shortly before trial and
the district court appointed as a substitute a young real
estate lawyer. However, the court allowed him only 25 days
to prepare for trial even though it had taken the
government four and a half years to investigate and review
thousands of documents. It was a difficult case for the
defense because two co-defendants agreed to testify for the
government and their testimony proved that Cronic had
conceived and directed the entire "check kiting" scheme.
Cronic did not testify so as to avoid impeachment with a
prior conviction nor did he put on a defense, but his
counsel did cross-examine the government's witnesses.
Cronic was convicted on 11 of the 13 counts and sentenced
to 25 years imprisonment. The court of appeals r eversed
because it inferred that Cronic's Sixth Amendment right to
the effective assistance of counsel had been violated. See
Cronic, 466 U.S. at 649-52.

Although the Supreme Court did not agree that the
circumstances in Cronic justified the inference drawn by
the court of appeals, it is the Court's discussion of the
circumstances in which there would be such a Sixth
Amendment violation that stands at the center of the Cronic
doctrine. The Court began its discussion with the statement
that "[a]n accused's right to be repr esented by counsel is a
fundamental component of our criminal justice system," id.
at 653, and quickly explained this meant "the right to the
effective assistance of counsel," id. at 654. At stake is the
defendant's right to assistance "for his defence." Id. (quoting
U.S. Const. amend. VI). "If no actual `Assistance' `for' the
accused's `defence' is provided, then the constitutional
guarantee has been violated." Id. (quoting U.S. Const.
amend VI). Further, "a trial is unfair if the accused is
denied counsel at a critical stage of his trial." Id. at 659.

In one of the key passages, the Court stated that"[t]he
right to the effective assistance of counsel is . . . the right

                               13
of the accused to require the prosecution's case to survive
the crucible of meaningful adversarial testing." Id. at 656.
No specific showing of prejudice is r equired when counsel
entirely fails to subject the prosecution's case to such
testing. In such an event, ineffectiveness of counsel is
"properly presumed without inquiry into actual
performance at trial." Id. at 661.

Courts have found constructive denial of the right to
counsel under Cronic where counsel offered no assistance
to defendant at plea proceedings, see Childress v. Johnson,
103 F.3d 1221, 1231 (5th Cir. 1997); acted as a mere
spectator at defendant's sentencing, see Tucker v. Day, 969
F.2d 155, 159 (5th Cir. 1992); failed to object to a directed
verdict against the defendant, see Har ding v. Davis, 878
F.2d 1341, 1345 (11th Cir. 1989); and deliberately stressed
the brutality of his client's crime, see Osbor n v. Shillinger,
861 F.2d 612, 628-29 (10th Cir. 1988).

The Commonwealth contended at oral argument that
Cronic is inapplicable because Appel had declined to be
represented by counsel and invoked his right to represent
himself under Faretta v. California , 422 U.S. 806 (1975). In
Faretta, the Supreme Court examined the historical
underpinnings of the right to self-repr esentation, and ruled
that a court cannot "compel a defendant to accept a lawyer
he does not want" if he voluntarily and intelligently chooses
to represent himself. Id. at 833. The Court concluded that
a defendant's right to self-representation is protected in the
Sixth Amendment.

We are not unaware that a trial court may believe that it
is caught between the Scylla and Charybdis of Cr onic and
Faretta. We acknowledge that the court must sometimes
walk a narrow line between the Sixth Amendment
requirement that a defendant be pr ovided with counsel and
its requirement that a defendant be given the right of self-
representation. This is not such a case because the issue is
focused on the short period of time befor e the trial court
accepted Appel's waiver of counsel. It is well-established
that a waiver of the right to counsel is not ef fective until the
court accepts that it is made voluntarily, knowingly, and
intelligently. See Brewer v. Williams, 430 U.S. 387, 403
(1977); see also Faretta, 422 U.S. at 835 (noting that the

                               14
defendant "was voluntarily exercising his informed free will"
to decline representation by counsel); Johnson v. Zerbst,
304 U.S. 458, 465 (1938) (requiring a waiver of counsel to
be "an intelligent and competent waiver by the accused").

Moreover, a defendant's waiver cannot be knowing or
intelligent unless the defendant is competent. See Pate v.
Robinson, 383 U.S. 375, 384 (1966). Pennsylvania's own
procedures provide that "[w]hen the defendant seeks to
waive the right to counsel . . . , the judge shall ascertain
from the defendant, on the record, whether this is a
knowing, voluntary, and intelligent waiver of counsel." Pa.
R. Crim. P. 318(c) (renumbered Rule 121(C)). It follows that
Faretta does not displace Appel's right to effective
assistance of counsel under the Sixth Amendment in the
period before he was deemed competent to waive counsel
on June 20, 1986.

Kraft and Crowe were Appel's counsel between June 10,
1986 and June 20, 1986. They were assigned to be Appel's
attorneys on June 10, 1986 and entered appearances on
his behalf. Under the Pennsylvania Rules of Criminal
Procedure, once an attorney has entered an appearance
with the court, "[c]ounsel for a defendant may not withdraw
his or her appearance except by leave of court." Pa. R.
Crim. P. 302(b) (renumbered Rule 120(C) and amended
March 1, 2000, effective April 1, 2001). Moreover, as the
District Court recognized, Kraft and Cr owe were not
standby counsel for Appel until June 20, 1986, when the
trial court accepted Appel's waiver. See District Court
Memorandum at 26; see also Pa. R. Crim P . 318(d)
(allowing appointment of standby counsel after the court
accepts a defendant's waiver of counsel) (renumbered Rule
121(D)). The Commonwealth's reliance on Far etta does not
relieve us of our obligation to examine whether Appel's
constitutional rights were properly pr eserved before the
trial court accepted his waiver.

The Commonwealth next argues that the District Court
should have examined Appel's claim under Strickland's
ineffective assistance of counsel analysis rather than the
constructive denial of counsel analysis of Cr onic. It
contends that Appel cannot prove that his trial counsel's

                                15
alleged failures prejudiced the defendant, as required by
Strickland. See Br. of Appellant at 47-52.

Strickland, decided on the same day as Cronic, held that
the Sixth Amendment right to counsel was violated if (1)
"counsel's representation fell below an objective standard of
reasonableness," and (2) the "deficiencies in counsel's
performance [were] prejudicial to the defense." Strickland,
466 U.S. at 688-92. The Court further stated that"[j]udicial
scrutiny of counsel's performance must be highly
deferential . . . that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy." Id. at 689
(citation and quotation omitted).

Both Strickland and Cronic address the adequacy of
counsel's performance. And it is indeed true that the
majority of Sixth Amendment right to counsel cases are,
and should be, analyzed under the ineffective assistance
standard of Strickland which requires a showing of
prejudice. See Childress, 103 F .3d at 1228 (noting that
Strickland governs most right to counsel claims); United
States v. Gambino, 788 F.2d 938, 950 n.17 (3d Cir. 1986)
(noting that the Cronic analysis should be used for
"particularly egregious circumstances"). The District Court
similarly recognized that Cronic should be applied
"sparingly." District Court Memorandum at 22 (quotation
omitted).

The District Court was acutely aware of the distinction.
The court, however, stated that "Appel claims that he was
denied counsel -- not that he received inef fective assistance
of counsel." Id. at 20 (capitalization omitted).5 Accordingly,
we will limit our consideration to the issue on which the
District Court focused -- whether Appel was constructively
denied counsel in the period before the trial court accepted
his waiver of counsel.
_________________________________________________________________

5. Appel argues that, in the alternative, we should affirm the District
Court's order because he was denied his Sixth Amendment right to
effective assistance of counsel. However , it appears that argument was
not advanced in the District Court and we see no r eason to consider it
here.

                               16
C. Constructive Denial of Appel's Right to Counsel

We turn finally to review the merits of the basis for the
District Court's grant of the writ of habeas corpus. The
District Court granted Appel's petition for habeas corpus
based on its conclusion that Appel's Sixth Amendment right
to counsel was constructively denied during the period from
June 10, 1986 (when counsel was appointed) to June 20,
1986 (when the trial court accepted his waiver of counsel
and appointed Kraft and Crowe as standby counsel).

The District Court viewed the Cronic precedent as
applying "when counsel utterly failed to function as counsel
by providing no assistance to the defendant." Id. at 23. It
noted that other courts of appeals have applied Cronic in
accordance with these principles, citing, inter alia, Rickman
v. Bell, 131 F.3d 1150, 1157 (6th Cir . 1997) (applying
Cronic when counsel "combined a total failure to actively
advocate his client's cause with repeated expr essions of
contempt for his client for his alleged actions"); Childress,
103 F.3d at 1231 (applying Cronic when counsel offered no
advice to defendant at a plea hearing and conducted no
investigation to assist the defendant); cf. T ippins v. Walker,
77 F.3d 682, 686-87 (2d Cir. 1996) (pr esuming prejudice
when defense counsel slept through a substantial portion of
trial, thereby suspending the adversarial natur e of the
process).

Appel's competency hearing was a critical stage of his
trial. The District Court noted that Kraft and Cr owe "had
the obligation to act as counsel at Appel's competency
hearing by subjecting the state's evidence of competency to
`meaningful adversarial testing.' " District Court
Memorandum at 27 (quoting Cronic, 466 U.S. at 659). And,
in the dispositive finding, the District Court found "[t]he
record is undisputed that they failed to do so; they did not
investigate his background, speak to his family or friends,
or obtain his health or employment recor ds." Id. We have
examined the record and see no reason to disagree. The
Commonwealth did not disagree in the District Court but
stated at oral argument that Kraft and Cr owe did speak
with Appel's parents between June 10 and June 20, 1986.
However, both Kraft and Crowe testified that these

                               17
conversations concerned paying bills and handling
property, not Appel's competency.

Kraft and Crowe testified repeatedly at the state PCRA
hearing that they believed they were not Appel's counsel in
the short period before June 20, 1986. That r epetition
prompted the court to remark during Kraft's testimony:

       THE COURT: Well, I think Attorney Kraft has made
       clear that she was not authorized as Mr. Appel's
       attorney throughout this proceeding . . . There is no
       need each time the question is asked to remind us that
       you were not his attorney, we understand.

App. II at 114.

We see nothing in the record that disputes the following
facts set forth in Appel's brief on appeal:

        Believing that they were never Mr. Appel's counsel,
       the attorneys never even offered to investigate and
       never did any investigation of any type, r egarding the
       offense or Mr. Appel's competency: they never spoke to
       anyone or obtained any records about Mr . Appel's
       background and history; they never asked anyone in
       Mr. Appel's family about the offense or Mr. Appel's
       background, although they knew how to contact Mr.
       Appel's parents; they never asked Mr. Appel's girlfriend,
       Yvonne Duggan, about the offense or Mr . Appel's
       background, although they knew how to contact her;
       they never spoke to any of Mr. Appel's co-workers,
       although they knew where he had worked; they never
       sought or obtained Mr. Appel's military r ecords,
       although they knew he had been in the military and
       had had problems there; they never looked into the
       codefendant's views about Mr. Appel's mental state;
       they never sought or obtained Mr. Appel's employment
       records, although they knew that he had had problems
       in his employment at the Lehigh County Jail; they
       never sought or obtained from the prosecution any
       police reports prior to the June 20, 1986 competency
       decision; they never spoke to the police investigator
       about what he had learned about Mr. Appel's mental
       state. . . .

                               18
        In short, attorneys Kraft and Crowe, because they
       did not believe they were counsel, never conducted any
       investigation; did not provide Dr. Schwartz or the court
       with any information about Mr. Appel; and did not
       attempt to litigate the competency determination in
       any way. Attorneys Kraft and Crowe testified that,
       instead of investigation or acting as counsel in the
       case, they did "personal things for Mr. Appel" such as
       transferring car titles and making sure bills had been
       paid. . . . They did nothing to investigate or pr epare for
       the competency determination. They did not subject
       the crucial competency determination in this capital
       case to any adversarial testing.

Br. of Appellee at 8-9 (emphasis in original).

It follows that there is ample support for the District
Court's conclusion that Kraft and Crowe "abandoned their
duty to both the court and their client when they decided
not to conduct any investigation" on Appel's competency.
District Court Memorandum at 27.

The Commonwealth argues that the District Court
misapplied the law by relying on Hull v. Fr eeman, 932 F.2d
159 (3d Cir. 1991). In Hull, we held that an attorney
abdicated his professional obligations by failing to contest
his client's competency to stand trial when ther e were
psychiatric reports of his client's incompetency. Notably, we
were analyzing Hull's claims under the Strickland test for
ineffective assistance of counsel. See id. at 167-70.
Nevertheless, the District Court here cited to Hull in
support of its ruling that Kraft and Crowe failed to meet
their obligations as Appel's counsel, amounting to a
violation of Cronic. See District Court Memorandum at 27-
28. Contrary to the Commonwealth's protestations, we find
Hull instructive on this point. Though Kraft and Crowe did
not possess the same type of evidence of their client's
incompetency as did the defense counsel in Hull , their
failure to make any investigation clearly pr evented them
from discovering that such information did exist.

At oral argument, the Commonwealth argued that an
affirmance of the District Court's ruling that Appel was
denied the assistance of counsel would encourage a spate

                               19
of similar claims by other defendants. We believe that
scenario is unlikely. Counsel are not apt to abdicate their
responsibility to conduct some preliminary investigation
even when a defendant wishes to plead guilty, as the
defendant's background may provide a basis to argue
mitigating circumstances. Here, even a minimal inquiry
would have disclosed from Appel's mother his strange
behavior, his staring, suicide attempts, and prior incident of
babbling incoherently on a staircase when he worked at the
Lehigh County Jail; inquiry of his girlfriend would have
disclosed his bizarre behavior, thr eat of suicide, belief that
he was an agent for military intelligence; inquiry into
Appel's employment at the Lehigh County Jail also would
have uncovered Appel's history of bizarr e behavior, such as
mumbling incoherently to a radio in a stairwell, claims that
he had been involved in top secret spying operations, his
appearance of being delusional and of having mental
problems. See Br. of Appellee at 12-18.

We are not suggesting that this evidence shows that
Appel is or was incompetent on June 20, 1986. However,
because counsel failed to make even a minimal inquiry they
did not ascertain these background facts or pr esent them
to Dr. Schwartz or the court. Indeed, Dr . Schwartz testified
at the PCRA hearing that had she known about Appel's
bizarre behavior, she would have made further inquiry. See
PCRA Tr. 5/11/95, at 111-14 (testimony of Dr. Janet
Schwartz). In the judicial experience of each member of this
panel, none of which has less than 20 years on the bench,
such default by counsel who do not believe that they are
counsel has rarely, if ever, occurr ed. Therefore, we reject
the Commonwealth's suggestion that we are opening a
Pandora's Box.

Nor do we believe it would impose an undue bur den on
defense counsel to require some investigation into the
defendant's competency, especially in a capital mur der case
where the trial court has ordered a competency evaluation
and hearing. As the District Court noted, defense counsel is
not obligated "to develop frivolous arguments in favor of
incompetency." District Court Memorandum at 30. But
under the circumstances in this case, Appel's counsel
should have investigated, advocated, or otherwise acted to

                               20
ensure that there was "meaningful adversarial testing."
Cronic, 466 U.S. at 659. In the wor ds of the District Court,
Appel's counsel was "only required to act as an advocate --
to conduct a meaningful investigation into [the] defendant's
competency and to present information gleaned from that
investigation at [the] competency hearing, and to the
evaluating psychiatrist, if the information suggests an
alternative version of the truth about the defendant's
competency." District Court Memorandum at 30.

Therefore, we agree with the District Court's
determination that Kraft and Crowe's failure to act in the
period between June 10, 1986 and June 20, 1986, when
the District Court held Appel competent to waive counsel,
constituted a constructive denial of Appel's Sixth
Amendment right to counsel.

D. Remedy

Having found Appel's Sixth Amendment rights violated,
the District Court granted a writ of habeas corpus and
vacated Appel's conviction and sentence but allowed the
government to provide Appel with a new trial within 180
days of the order. The Commonwealth ar gues on appeal
that the appropriate remedy for a Cr onic violation would be
to order a retrospective competency hearing to determine
whether Appel was indeed competent to waive counsel in
1986. However, the Commonwealth has been unable to cite
to any case that would support ordering a r etrospective
competency hearing instead of vacating Appel's conviction.

In contrast, we have previously held that r etrospective
competency hearings are not an appropriate remedy for
Sixth Amendment violations. In Henderson v. Frank, 155
F.3d 159 (3d Cir. 1998), we held that the defendant's lack
of counsel at a pretrial suppression hearing violated his
Sixth Amendment rights, a violation that could not"be
remedied by merely ordering a new suppression hearing."
Id. at 170. Citing Cronic, we stated that the violation
"contaminated the entire criminal pr oceeding." Id. at 171.
Similarly, we noted in Hull that the appr opriate remedy for
ineffective assistance of counsel at a competency hearing
was to vacate the guilty plea, not to order a new
competency hearing. See Hull, 932 F.2d at 169.

                                21
Moreover, the Supreme Court has disapproved of
retrospective hearings on competency. In Pate v. Robinson,
383 U.S. 375 (1966), where the habeas petitioner did not
receive a constitutionally adequate competency hearing, the
Court stated: "It has been pressed upon us that it would be
sufficient for the state court to hold a limited hearing as to
[the petitioner's] mental competence at the time he was
tried in 1959. If he were found competent, the judgment
against him would stand. But we have previously
emphasized the difficulty of retrospectively determining an
accused's competence to stand trial." Id. at 387.

The Supreme Court has consistently held ther e should be
a new trial if there has been some constitutional defect
regarding the defendant's competency. See, e.g., Drope v.
Missouri, 420 U.S. 162, 183 (1975) (granting a new trial
when trial court refused to conduct a hearing to determine
the defendant's competence to stand trial); Pate , 383 U.S.
at 386-87 (ordering a new trial for a defendant who did not
receive an adequate competency hearing); Dusky v. United
States, 362 U.S. 402, 403 (1960) (per curiam) (vacating the
conviction after holding that there wer e insufficient facts to
support the finding that petitioner was competent to stand
trial and recognizing the "difficulties of retrospectively
determining the petitioner's competency as of more than a
year ago").

The right to assistance of counsel is "one of the
safeguards of the Sixth Amendment deemed necessary to
insure fundamental human rights of life and liberty."
Johnson v. Zerbst, 304 U.S. 458, 462 (1938). It follows that
we agree with the District Court that "[t]he unconstitutional
deprivation of counsel at Appel's competency hearing
infected all later stages of his prosecution and rendered all
subsequent proceedings against him void." District Court
Memorandum at 33. Following the trial court's acceptance
of Appel's waiver of counsel, Appel was without"the guiding
hand of counsel at every later stage of the pr oceedings
which eventually lead [sic] to his death sentence." Id. at 34.
The Supreme Court and Third Circuit precedent cited above
supports the District Court's conclusion that "[t]he
appropriate remedy for this constitutional violation . . . is,
therefore, to vacate Appel's conviction and sentence and to
award him a new trial." Id.

                               22
III.

CONCLUSION

We will therefore affirm not only the District Court's
conclusion that Appel's Sixth Amendment right was
violated but also its determination that the appropriate
remedy is to grant a writ of habeas corpus vacating Appel's
conviction and sentence and to allow the Commonwealth to
provide Appel with a new trial.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               23
