                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-1998

Henderson v. Frank
Precedential or Non-Precedential:

Docket 97-3041




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Recommended Citation
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Filed August 6, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3041

JOHN KENNETH HENDERSON,

       Appellant

v.

FREDERICK FRANK, Superintendent; THOMAS W.
CORBETT, JR., Attorney General

       JOHN K. HENDERSON,
       Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 96-cv-00779)

Argued: June 9, 1998

Before: BECKER, Chief Judge, ALDISERT and GARTH,
Circuit Judges

(Filed: August 6, 1998)

       Shelley Stark (argued)
       Office of the Federal Public Defender
       960 Penn Avenue
       415 Convention Tower
       Pittsburgh, PA 15222

       ATTORNEY FOR APPELLANT
       David F. Pollock (argued)
       Office of the District Attorney
       216 County Office Building
       Waynesburg, PA 15270

       ATTORNEY FOR APPELLEE

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Facing criminal charges at a preliminary hearing before a
Commonwealth of Pennsylvania district justice, John K.
Henderson signed and filed a standard waiver of counsel
form. He then petitioned the state court to allow him to
proceed pro se, which was allowed without a recorded
colloquy between Henderson and the judge regarding the
dangers of self-representation. Henderson was not
represented by counsel at a subsequent pretrial hearing
where he unsuccessfully moved to suppress his confession.
He was represented by counsel at his trial, where a jury
found him guilty of burglary, criminal conspiracy, criminal
attempt to commit burglary and criminal mischief.

After failing to obtain relief from his conviction in the
state court system, Henderson petitioned the district court
for a writ of habeas corpus under 28 U.S.C. S 2254, alleging
that his invalid waiver of counsel and subsequent lack of
representation at the suppression hearing violated the Sixth
Amendment. The district court denied relief and we granted
a certificate of appealability. 28 U.S.C. S 2253(c)(2). We
must consider two separate but related issues: First, did
signing a standard waiver of counsel form at the
preliminary hearing and later petitioning the court for
permission to proceed pro se, by themselves, constitute a
knowing, voluntary and intelligent waiver of his right to
counsel at a subsequent suspension hearing? Second, if
this did not satisfy Sixth Amendment waiver requirements
and we grant a writ of habeas corpus, should the grant of
the writ be conditioned on his receiving a new trial or
merely a new suppression hearing? Before meeting these
issues head-on, we must first decide whether his habeas

                               2
petition was time-barred under provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and
whether he exhausted state remedies before filing the
Petition.

The district court had jurisdiction pursuant to 28 U.S.C.
S 2241(a), and we have jurisdiction pursuant to 28 U.S.C.
SS 1291 and 2253(c)(1)(A). Henderson's Notice of Appeal was
timely filed. Rule 4, Federal Rules of Appellate Procedure.
We will reverse and remand to the district court to issue
the writ, conditioned on the Commonwealth affording
Henderson a new suppression hearing and a new trial.

I.

In April, 1992, the Waynesburg, Pennsylvania Police
arrested Henderson for receiving stolen property in
connection with the burglary of a clothing store. Once in
police custody, Henderson confessed to the burglary of the
clothing store and also to the attempted burglary of a
hardware store a few months earlier. He was subsequently
charged with both crimes.

Prior to the preliminary hearing on July 6, 1992,
Henderson applied for and was appointed a public
defender. Because this particular attorney withdrew from
the representation prior to the hearing, he was represented
at the hearing by another public defender, Elizabeth Haque.
At this hearing, Henderson submitted a form entitled
"Waiver of Counsel" to the district justice. The standard
form was filled out with Henderson's name, the charges of
"Burglary, Criminal conspiracy, Criminal attempt, Criminal
mischief & Criminal Conspiracy" and contains Henderson's
signature below a series of pre-printed statements,
including:

       I,   John Henderson , have been informed that I
       have the right to have a lawyer represent me, and if I
       cannot afford one, one will be afforded to me without
       cost. . . .

       I,   John Henderson , am a ware of the permissible
       range of sentences and/or fines for the offenses
       charged. . . .

                                3
       I knowingly, voluntarily and intelligently waive these
       rights and choose to act as my own lawyer at this
       hearing/trial.

App. at 33. The district justice signed the form under the
statement, "I HAVE DETERMINED THAT THE DEFENDANT
HAS MADE A KNOWING, VOLUNTARY, AND INTELLIGENT
WAIVER OF HIS RIGHT TO COUNSEL." Id.

On July 17, Henderson filed a "Petition to Proceed on
own Behalf", which was granted by the trial court. It is
unclear from the record whether Elizabeth Haque continued
to serve as court-appointed stand-by counsel for Henderson
after this point. Henderson next filed a pro se Motion to
Suppress his confession, and after a suppression hearing
on September 25 at which he represented himself, and at
which Ms. Haque's presence is not apparent on the record,
his Motion was denied. The court then appointed new
counsel to represent Henderson at trial and the jury
convicted Henderson on all counts. The trial court
sentenced him to 5 to 20 years at Huntingdon State
Correctional Institution.

Henderson appealed to the Pennsylvania Superior Court,
alleging, inter alia, that he was denied the effective
assistance of counsel at the suppression hearing. His
conviction was affirmed and the Supreme Court of
Pennsylvania denied his Petition for Allowance of Appeal,
which raised a violation of "the right to counsel." The Court
of Common Pleas denied his Pennsylvania Post Conviction
Relief Act Petition, 42 Pa. Cons. Stat. SS 9541-9546, which
also raised the deprivation of counsel issue.

Henderson gave his Habeas Corpus Petition, which was
addressed to the federal district court in Pittsburgh and
dated April 16, 1996, to Huntingdon SCI prison officials for
delivery. The record does not disclose the precise date that
his Petition was handed to the prison officials. The record
does reveal that the district court clerk filed the Petition on
April 25, one day after the effective date of the AEDPA
amendments to the federal habeas corpus statute.

Our review of whether Henderson has exhausted his
state remedies is plenary. See Doctor v. Walters, 96 F.3d
675, 678 (3d Cir. 1996). Whether the AEDPA applies to this

                                4
case, i.e., whether Henderson's Petition was pending on the
AEDPA's April 24, 1996 enactment date, is a jurisdictional
question subject to plenary review. See In re Flanagan, 999
F.2d 753, 756 (3d Cir. 1993). If we conclude that the
AEDPA applies to Henderson's petition, then we may
reverse the state court's denial of his Sixth Amendment
claim only if the decision (1) "was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or (2) . . . was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. S 2254(d); see Bey
v. Morton, 124 F.3d 524, 528 (3d Cir. 1997). If the AEDPA's
amendments to S 2254 do not apply, then we exercise
simple plenary review. See Bey, 124 F.3d at 528.

II.

The Commonwealth has suggested that Henderson's
Petition was filed after enactment of the AEDPA, which
amended the federal habeas statute in two respects
relevant to this case: (1) the AEDPA provides for a one-year
period of limitations to file S 2254 petitions, running from
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review", S 2244(d)(1)(A), and (2) it imposes a
new, limited standard of review which restricts federal court
action by requiring deference to the state court's legal
resolution of the issue petitioned, S 2254(d).

For several discrete reasons, we are not impressed by the
Commonwealth's tardy presentation of this argument which
it neglected to present to the district court. First, we
conclude that Henderson's Petition was timely filed prior to
the effective date of the act, April 24, 1996, that therefore
his Petition was pending on that date and that the AEDPA
does not apply. See Lindh v. Murphy, 117 S. Ct. 2059, 2063
(1997). We reach this conclusion because we agree with
Henderson's claim that he handed over his petition, which
was dated April 16, 1996, to prison officials before April 24,
1996 and therefore it was timely filed. See Houston v. Lack,
487 U.S. 266, 276 (1988); Burns v. Morton, 134 F.3d 109,
112 (3d Cir. 1998) (the teachings of Houston--that delivery

                               5
of a notice of appeal by a pro se prisoner to prison officials
is tantamount to filing with the clerk of court--apply to
filing a S 2254 habeas petition).

Putting aside that the Commonwealth failed to raise this
issue before the district court, we are unable to accept its
argument, somehow made with a straight face, that
because the clerk received the transmittal from the prison
on April 25, Henderson did not place it in the hands of the
prison officials until the day before, to-wit April 24; that in
a herculean burst of bureaucratic efficiency and postal
service it was processed by the various levels of prison
administration and delivered to the rural post office in
Huntingdon, Pennsylvania that same day; that in lightning
speed, the U.S. Postal Service carried it from Central
Pennsylvania over the mountains to the Pittsburgh
metropolitan distribution center--covering half the distance
of the state--where, without any delay whatsoever, it was
delivered to the district court clerk's office in Pittsburgh by
the next morning. If the Commonwealth had introduced
evidence to support this ambitious scenario, it might have
received some favorable reception here. But no such
evidence was submitted. And what we know as men and
women about prison administrative procedures and the
pace of U.S. Mail delivery, now described as "snail mail" by
e-mail aficionados, we must not forget as judges. We will
not accept the Commonwealth's theory that we should
employ a kind of judicial notice to accept its theory.

We recognize that "prison authorities are in a position to
easily show when a document was received or mailed under
established prison procedures for recording the date and
time at which papers are received by prison officials in the
prison's mail room." Flanagan, 999 F.3d at 757 (citing
Houston, 108 S. Ct. at 2384). Thus, the Commonwealth
should have been expected to support its untimeliness
argument with prison logs documenting that Henderson
deposited his Petition with prison authorities on April 24 or
April 25, 1996. Absent such proof to the contrary, we
conclude that Henderson's Petition, having arrived in
Pittsburgh on April 25, must have been first delivered to
prison authorities some time before April 24, and therefore
should be deemed filed before the AEDPA effective date.

                               6
Because the AEDPA does not apply here, the one-year
period of limitations of the amended S 2244(d) does not bar
the Petition.1 We repeat that, in this case, the
Commonwealth had the burden of proving that the Petition
had been delivered to prison authorities on April 24 and not
before. It not only failed to meet its burden, it did not even
see fit to raise this issue in the district court.

III.

A federal court may not grant a writ of habeas corpus
unless (1) "the applicant has exhausted the remedies
available in the courts of the State", (2) no such state
remedy is available or (3) available remedies are ineffective
to protect the applicant's rights. 28 U.S.C. S 2254(b)(1). To
exhaust the remedies available in the Pennsylvania courts,
Henderson must first fairly present to the Pennsylvania
courts all claims he will make in his Habeas Petition, in
order to give the state courts "the `opportunity to pass upon
and correct alleged violations of [his] federal rights.' " See
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)
(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
Henderson raised one issue in his Petition to the district
court: "Petitioner did not knowingly and intelligently waive
his Sixth Amendment Right to Counsel." For Henderson to
have "fairly presented" this issue to the Pennsylvania
courts, his "state court pleadings and briefs must
demonstrate that he has presented the legal theory and
supporting facts asserted in the federal habeas petition in
such a manner that the claims raised in the state courts
are substantially equivalent to those asserted in federal
court." See Doctor, 96 F.3d at 678 (quotation omitted).

The record clearly demonstrates that Henderson,
following his conviction, "fairly presented" before each level
of state court hierarchy the issue of the effectiveness of his
waiver of counsel on his subsequent pro se representation
at the suppression hearing. App. at 56, 61 (Superior Court
_________________________________________________________________

1. Even if the AEDPA applied here, S 2244(d) would not time-bar
Henderson's Petition because, as this Court recently held, habeas
petitions need only be filed before April 24, 1997 to be timely under the
new standard. See Burns, 134 F.3d at 111.

                               7
of Pennsylvania); id. at 363 (Supreme Court of
Pennsylvania); id. at 85 (Common Pleas Court of Greene
County). Moreover, the Commonwealth conceded to the
district court in its Answer to Henderson's Habeas Petition
that "[t]he petitioner has exhausted his state remedies as to
the issue of his right to counsel at the suppression hearing,
albeit under the guise of an assertion of ineffective
assistance of counsel." App. at 23.

Notwithstanding the district court's rather detailed
analysis of the nuances of exhaustion--it construed
Henderson's Petition as raising two Sixth Amendment
violations, one at the preliminary hearing and another at
the suppression hearing, and conducted a separate
exhaustion analysis for each--we are satisfied that
Henderson has fulfilled the exhaustion requirement. The
Supreme Court has warned that judges should not misread
habeas petitions in order to split single claims and conduct
separate exhaustion analyses for each. Engle v. Isaac, 456
U.S. 107, 124 n.25 (1982) ("A creative appellate judge could
almost always distill from these allegations an unexhausted
. . . claim."). We read the record to indicate that Henderson
was without counsel at only one critical stage of his
criminal proceeding--the suppression hearing. His right to
counsel at this juncture certainly could have been waived,
but it is the government's burden to demonstrate that such
a waiver was voluntary, knowing and intelligent. See
Brewer v. Williams, 430 U.S. 387, 403 (1977). That the
waiver analysis in this case involves two pieces of evidence
at two different times--a waiver form signed by Henderson
at the preliminary hearing and his motion to proceed pro se
filed before the suppression hearing--does not transform
the single, alleged constitutional deprivation into two
separate ones.

Any doubt that Henderson raised only a single claim
before the state courts and again in his Habeas Petition is
answered by Henderson's Habeas Petition itself, which
states as the single, simple ground for review,"Petitioner
did not knowingly and intelligently waive his Sixth
Amendment Right To Counsel." App. at 11. We reject the
Commonwealth's attempt to split the claim for exhaustion
purposes--right to counsel at the preliminary hearing and

                               8
right to counsel at the suppression hearing--because it was
the Commonwealth that broached the issue,
notwithstanding Henderson's simple statement of the issue
presented. See McMahon v. Fulcomer, 821 F.2d 934, 941
(3d Cir. 1987). The legal memorandum Henderson
submitted in support of his Petition clarified any ambiguity
the district court may have had when he wrote of his
"single constitutional issue" that "[t]he legal claim of invalid
waiver of counsel at the preliminary hearing is precisely the
same as invalid waiver of counsel at the suppression
hearing."

What we said in McMahon, 821 F.2d at 941, may be
reiterated to control the present matter:

        Though appellant's petition may have been inartfully
       drafted, it was the Commonwealth, not the petitioner,
       that construed it as containing more than one claim.
       We find the record below reveals that [Henderson]
       clarified any ambiguity with respect to the Petition for
       a Writ of Habeas Corpus and adequately informed the
       court that the Petition contained only one issue.

Accordingly, we conclude that Henderson properly
exhausted the issue of his right to counsel at the
suppression hearing. We turn, then, to the merits of his
Petition.2

IV.

The Sixth Amendment provides, inter alia:"In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense." U.S. Const.
amend. VI; see Bey, 124 F.3d at 528. The right to counsel
attaches at arraignment, extends through the first appeal
and guarantees an accused the assistance of counsel at all
critical stages of a proceeding. Michigan v. Harvey, 494 U.S.
344, 357 (1990). A pretrial hearing considering the
suppression of the defendant's confession is such a critical
stage because its "results might settle the accused's fate
_________________________________________________________________

2. Because we concluded in Part II supra that the AEDPA does not apply
to this Petition, we exercise plenary review over the state court
judgment.
See Bey, 124 F.3d at 528.

                               9
and reduce the trial itself to a mere formality." See id. at
358 n.5 (quoting United States v. Wade, 388 U.S. 218, 224
(1967)).

Concomitant with the right to be defended by counsel
during criminal proceedings is the accused's right to waive
counsel and proceed pro se. Faretta v. California, 422 U.S.
806, 821 (1975). In order to establish that Henderson
validly waived his right to counsel, the Commonwealth
bears the heavy burden of proving that the waiver was
voluntary, knowing and intelligent. See Brewer, 430 U.S. at
403. The district court determined that Henderson validly
waived his right to counsel, relying on (1) the waiver form
which Henderson signed and filed with the district justice
at the preliminary hearing and (2) the "Petition to Proceed
on own Behalf " which Henderson filed pro se with the
Court of Common Pleas before the suppression hearing.

We conclude, however, that these documents alone--the
generic waiver form unspecific to Henderson's case and a
Petition which states, almost exclusively, "I wish to proceed
on my own behalf "--are insufficient to meet the
Commonwealth's "weighty obligation . . . to prove an
intentional relinquishment or abandonment of a known
right or privilege." App. at 33, 35; see Brewer, 430 U.S. at
403-404.

To ensure that an accused is aware of the pitfalls
possible in self-representation, "the district court should
advise him in unequivocal terms both of the technical
problems he may encounter in acting as his own attorney
and of the risks he takes if his defense efforts are
unsuccessful." See United States v. Welty, 674 F.2d 185,
188 (3d Cir. 1982). As a matter of constitutional law, we
have imposed a clear and unambiguous obligation upon a
trial judge who is faced with an accused who states merely
that he is aware of his right to counsel but wishes to waive
that right. A statement by a defendant that he wishes to
proceed pro se is not enough. Signing a pre-printed form is
not enough. See Piankhy v. Cuyler, 703 F.2d 728, 731 n.4
(3d Cir. 1983). Whether it be a U.S. District Judge or a U.S.
Magistrate Judge in a federal prosecution or a state judge
in a state criminal proceeding, the trial judge must conduct
a colloquy with the accused to determine that the waiver is

                               10
not only voluntary, but also knowing and intelligent. Id. At
a minimum,

       [t]o be valid [a defendant's] waiver must be made with
       an apprehension of the nature of the charges, the
       statutory offenses included within them, the range of
       allowable punishments thereunder, possible defenses
       to the charges and circumstances in mitigation thereof,
       and all other facts essential to a broad understanding
       of the whole matter.

Id. at 188-189 (quoting Von Moltke v. Gillies, 332 U.S. 708,
724 (1948) (plurality opinion) (reversing denial of habeas
petition because standard, pre-printed waiver of counsel
form insufficient to satisfy Sixth Amendment)). We have
held that an accused's protection under the Sixth
Amendment Right to Counsel is not satisfied when a trial
judge has failed to conduct "a penetrating and
comprehensive examination" of the accused's waiver
attempt which ensures that the accused is knowledgeable
about his decision, even when the colloquy skips just one
of the above factors. See Welty, 674 F.2d at 189 (no waiver
where court merely informed defendant that self-
representation is "inadvisable") (quoting Von Moltke, 332
U.S. at 724 (plurality opinion)); see also United States v.
Moskovits, 86 F.3d 1303, 1308 (3d Cir. 1996) (no waiver
notwithstanding trial judge's detailed colloquy with
defendant because judge failed to state that he was
authorized to impose greater sentence than that imposed in
defendant's first trial).

In this case, neither the waiver of counsel form nor the
petition to proceed pro se explained, for example, what
sentences or fines Henderson could face if convicted, nor
did they demonstrate Henderson's understanding of"all
other facts essential to a broad understanding of the whole
matter." See Welty, 674 F.2d at 189 (quoting Von Moltke,
332 U.S. at 724 (plurality opinion)); see also United States
v. Salemo, 61 F.3d 214, 222 (3d Cir. 1995) (invalid waiver
where no recorded colloquy, notwithstanding trial judge's
apparent familiarity with defendant's understanding of legal
issues in case). As a plurality of the Supreme Court
described in Von Moltke, 332 U.S. at 724,"a mere routine
inquiry--the asking of several standard questions followed

                               11
by the signing of a standard written waiver of counsel--may
leave a judge entirely unaware of the facts essential to an
informed decision that an accused has executed a valid
waiver of his right to counsel." A generic waiver form such
as Henderson's cannot replace the verbal colloquy between
judge and defendant, set forth for the record, to satisfy the
judge's obligation to ensure a waiver is made voluntarily,
knowingly and intelligently. See Singer v. Court of Common
Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989). We therefore
conclude that Henderson did not make a valid waiver of his
right to counsel at the suppression hearing.

The writ of habeas corpus should have been granted.

V.

But this does not end our deliberation. The
Commonwealth urges that if we issue the writ it should be
conditioned upon the Commonwealth affording Henderson
only the opportunity for a new suppression hearing, and
then conducting a new trial only if his confession is
suppressed. Henderson suggests otherwise. He argues that
he should be entitled to not only a new suppression hearing
but also a new trial before a jury, regardless of the outcome
of the suppression hearing. To determine what conditions
should be attached to the grant of the writ, it isfirst
necessary to determine if we have the authority to condition
the release on any proceeding less than a new trial, and if
so, we must decide if we should exercise that authority
under the circumstances of this case. We begin our
analysis by addressing the precise nature of federal court
habeas corpus jurisdiction over petitions emanating from
criminal convictions in the state court system.

A.

Let there be no misunderstanding that federal habeas
corpus review of state criminal convictions is an anomaly in
the jurisprudence of res judicata. It is only in the context
of a state criminal proceeding that a state court
determination of federal constitutional law may be
reexamined anew in the federal court system. Thus, where
a federal constitutional issue is presented to the state court

                               12
system in a civil action in a proceeding brought under 42
U.S.C. S 1983, the Supreme Court has held that Congress
did not intend "to allow relitigation of federal issues decided
after a full and fair hearing in a state court simply because
the state court's decision may have been erroneous." Allen
v. McCurry, 449 U.S. 90, 101 (1980). Although the writ of
habeas corpus is a civil proceeding, at least since 1953 the
Court has considered it a special exception to this rule.
Thus in Brown v. Allen, 344 U.S. 443, 500 (1953), Justice
Frankfurter, speaking for the majority, wrote, "the prior
State determination of a claim under the United States
Constitution cannot foreclose consideration of such a claim,
else the State court would have the final say which
Congress, by the Act of 1867, provided it should not have."
Also speaking for the majority, Justice Reed stated,"[t]he
state adjudication carries the weight that federal practice
gives to the conclusion of a court of last resort of another
jurisdiction on federal constitutional issues. It is not res
judicata." Id. at 458.

If there was difficulty trying to reconcile the philosophy of
the Brown v. Allen Court in 1953 with the Allen v. McCurry
Court in 1980, Justice Brennan, speaking for the Court in
1963 in Fay v. Noia, 372 U.S. 391, 430 (1963), carved out
a sound jurisdictional basis for the present concept of
federal habeas corpus, stating that, "while our appellate
function is concerned only with the judgments or decrees of
state courts, the habeas corpus jurisdiction of the lower
federal courts is not so confined. The jurisdictional
prerequisite is not the judgment of a state court but
detention simpliciter." Therein Justice Brennan emphasized
that "[h]abeas lies to enforce the right of personal liberty;
when that right is denied and a person confined, the federal
court has the power to release him. Indeed, it has no other
power; it cannot revise the state court judgment; it can act
only on the body of the petitioner." Id. at 430-431.

With this understanding, and conscious that we are not
reviewing in ipsis verbis the state court decision but only
inquiring into detention simpliciter, we lack the ability to
"revise the state court judgment." It would seem that
federal habeas power is limited, first, to a determination of
whether there has been an improper detention by virtue of

                               13
the state court judgment; and second, if we find such an
illegal detention, to ordering the immediate release of the
prisoner, conditioned on the state's opportunity to correct
constitutional errors that we conclude occurred in the
initial proceedings. This is not a direct appeal from a
federal conviction, where upon vacating the judgment this
Court would have unlimited power to attach conditions to
the criminal proceedings on remand. See, e.g., United
States v. Gravatt, 868 F.2d 585, 591 (3d Cir. 1989). Rather,
this is federal habeas corpus relating to a state conviction.

B.

Our relief must thus be fitted between two principles
underlying habeas corpus jurisprudence. The first is found
in the habeas statute itself: "The court shall summarily
hear and determine the facts, and dispose of the matter as
law and justice require." 28 U.S.C. S 2243. The second is
that "[b]oth the historic nature of the writ and principles of
federalism preclude a federal court's direct interference with
a state court's conduct of state litigation." See Barry v.
Brower, 864 F.2d 295, 300 (3d Cir. 1988). Within the
strictures of these principles, federal courts have most often
granted the relief in habeas cases that has required the
least intervention into the state criminal process. Courts
usually condition the issuance of a writ, which releases the
body of the prisoner from custody obtained through
unconstitutional means, upon the state's failure to retry the
habeas petitioner within a reasonable time in a way that
comports with constituional dictates. See, e.g., Brewer, 430
U.S. at 407 n.13.

It is true that under certain circumstances, federal courts
have conditioned the issuance of a writ on the state's
conducting proceedings narrower than a full retrial. See
Jackson v. Denno, 378 U.S. 368, 394 (1964) (conditioning
writ on state court conducting evidentiary hearing to decide
whether petitioner's confession was voluntary or coerced
and thus inadmissible at trial, a decision which the state
court had left for the jury to make in contravention of the
petitioner's due process rights in the state trial; further
ordering that if the state court decides the confession was
coerced, then a new trial would be necessary to avoid the

                               14
writ). However, such cases make clear that conditional
writs must be tailored to ensure that all constitutional
defects will be cured by the satisfaction of that condition.
The Supreme Court "has repeatedly stated that federal
courts may delay the release of a successful habeas
petitioner in order to provide the State an opportunity to
correct the constitutional violation found by the court." Hilton
v. Braunskill, 481 U.S. 770, 775 (1987) (emphasis added).
This Court certainly has the power to condition the writ on
a new trial. Before we further parse the relief and limit the
condition to a suppression hearing alone, we must examine
the nature of the constitutional violation found here in
order to be sure that simply conducting the new hearing
will completely eradicate the violation, and to be sure we do
not "revise the state court judgment." See Faye, 372 U.S. at
431.

C.

The right to the assistance of counsel granted in the
Sixth Amendment, including the "correlative right to
dispense with a lawyer's help", Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942), 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). This
constitutional right "withholds from federal courts [and
from state courts via the Fourteenth Amendment, Gideon v.
Wainwright, 372 U.S. 335, 345 (1963)], in all criminal
proceedings, the power and authority to deprive an accused
of his life or liberty unless he has or waives the assistance
of counsel." Johnson, 304 U.S. at 463. Had Henderson been
deprived of his right to counsel at the trial itself, certainly
we would require no less than a new trial to prevent a writ
from issuing. We must decide, however, whether the
deprivation of counsel at Henderson's suppression cast
enough taint on the counseled trial itself that we must
condition the writ on a new trial. We conclude that it did.

This case must first be distinguished from those in which
a constitutional violation in the state criminal proceedings
could be corrected by issuing a writ conditioned on
something less than a whole trial--a hearing, for example.

                               15
In Jackson, 378 U.S. at 377, 394, the Supreme Court held
unconstitutional a state criminal trial procedure in which a
judge was not given the discretion to exclude a defendant's
confession if a "fair question" existed about its
voluntariness. Giving the jury the primary responsibility to
first determine whether the confession was voluntary, and
second, to discredit involuntary confessions which the jury
has at that point already heard, violated due process. Id. at
377. In fashioning a remedy, the Court recognized that the
defendant was entitled to a hearing in which the
voluntariness, and hence admissibility, of his confession
would be determined apart from "the body trying guilt or
innocence." Id. at 394. The Court concluded:

       So far we agree and hold that he is now entitled to
       such a hearing in the state court. But if at the
       conclusion of such an evidentiary hearing in the state
       court on the coercion issue, it is determined that
       Jackson's confession was voluntarily given, admissible
       in evidence, and properly to be considered by the jury,
       we see no constitutional necessity at that point for
       proceeding with a new trial, for Jackson has already
       been tried by a jury with the confession placed before
       it and has been found guilty.

In that case, because the constitutional violation suffered
by the habeas petitioner was the lack of a necessary
hearing, the Court could remedy that defect by ordering a
constitutional hearing itself. It was the legal outcome of
that hearing alone--a determination about the
voluntariness of the confession--that was important.
Because it had been missing, the Court was able to
"dispose of the matter as law and justice require," 28 U.S.C.
S 2243, by granting the narrow relief of ordering the hearing
itself.

However, the nature of the constitutional violation
suffered by Henderson is very different than that in
Jackson. To be sure, the Court there stated that no new
trial was necessary "for Jackson has already been tried by
a jury with the confession placed before it and has been
found guilty." Jackson, 378 U.S. at 394. But the linchpin of
the Court's decision in Jackson, and the sole issue argued
and decided there, was not the Sixth Amendment Right to

                               16
Counsel present in this case, but a determination that "a
conviction based upon a coerced confession . . . cannot
withstand constitutional attack under the Due Process
Clause of the Fourteenth Amendment." Id. at 377. There is
a completely different issue presented here, and it is one
that requires a completely different analysis. When
Henderson was deprived of his Sixth Amendment Right to
Counsel at the suppression hearing, he lost much more
than an opportunity to have his confession suppressed--
the legal outcome of that hearing. Rather, the constitutional
defect he suffered in the first suppression hearing was a
procedural, structural defect which may have had
repercussions in plea bargaining, discovery and trial
strategy that would not be cured by a new suppression
hearing alone. This is a much more sophisticated right and
its analysis must always begin where the due process
determination leaves off.

The importance of "the guiding hand of counsel at every
step in the proceedings against him," Powell v. Alabama,
287 U.S. 45, 69 (1932), cannot be understated. First,
representation by counsel in the stages leading up to trial
is beneficial to the defendant who may wish to pursue his
plea bargaining options and avoid trial altogether. See
Grades v. Boles, 398 F.2d 409, 413 (4th Cir. 1968)
("Counsel, or effective waiver thereof, is a sine qua non of
permissible plea bargaining."). Second, "trained counsel can
more effectively discover the case the State has against his
client and make possible the preparation of a proper
defense to meet that case at the trial." See Coleman v.
Alabama, 399 U.S. 1, 9 (1970). Third, "the skilled
interrogation of witnesses [at a pretrial hearing] by an
experienced lawyer can fashion a vital impeachment tool for
use in cross-examination of the State's witnesses at the
trial, or preserve testimony favorable to the accused of a
witness who does not appear at the trial." Id. Particularly
here, where three of the four witnesses to testify at the
suppression hearing testified at Henderson's trial, see App.
at 159, 213, the participation of a skilled attorney at both
proceedings certainly would have been beneficial to
Henderson's ultimate defense. Henderson suffered a
constitutional deprivation that went to the heart of the
criminal trial process itself, a violation which cannot be

                               17
remedied by merely ordering a new suppression hearing
and conditioning a new trial on its sheer outcome alone. Cf.
Waller v. Georgia, 467 U.S. 39, 47-50 (1984) (in non-habeas
case reviewing state criminal convictions, where defendants
failed to have wiretap evidence suppressed in a closed
pretrial hearing that violated the Sixth Amendment's public
trial guarantee and were convicted at trial, the Court
remanded for new suppression hearing only; however, the
Court stressed that the outcome of such hearings often
replaced the importance of the trial itself and the Court did
not indicate any way in which the procedure and conduct
of the suppression hearing, other than its sheer outcome
alone, would affect the trial or any other part of the
proceedings in that case).

Moreover, the value of counsel to Henderson at the
hearing must be underscored because the hearing
concerned what was undoubtedly the most damaging piece
of evidence offered against Henderson at trial: his
confession. Of course, that Henderson failed to have his
confession suppressed in no way precluded his attack on
the credibility of the confession at trial. See Crane v.
Kentucky, 476 U.S. 683, 690 (1986). The judge may not
have ruled as a matter of law that the confession was
inadmissible, but had a skilled attorney represented
Henderson at the suppression hearing, he or she would
have confronted the witnesses against Henderson and
studied the Commonwealth's trial strategy, in the hopes of
preparing a better attack on the factual environment of the
confession at a trial by jury. See id. at 691; Dancy v. United
States, 361 F.2d 75, 77 (D.C. Cir. 1965) ("defense counsel's
conduct of the cross-examination of witnesses at the trial
reflects a tentative and probing approach due to his
ignorance of certain doubtful areas in the government's
proof which might well have been known to him had he
been able to participate in the preliminary hearing").

D.

Finally, we decide that the deprivation of Henderson's
right to counsel at the suppression hearing is one of the
"structural defects in the constitution of the trial
mechanism, which defy analysis by `harmless-error'

                               18
standards." See Arizona v. Fulminante, 499 U.S. 279, 309
(1991); see also Salemo, 61 F.3d at 221-222 (refusing to
conduct harmless error analysis to Sixth Amendment
violation at sentencing hearing); United States v. Allen, 895
F.2d 1577, 1580 (10th Cir. 1990) (harmless error analysis
inapplicable to waiver of counsel cases); United States v.
Bohn, 890 F.2d 1079, 1082 (9th Cir. 1989) (harmless error
analysis inappropriate when defendant denied right to
counsel at in camera hearing).3 The existence of structural
defects, including deprivation of the right to counsel at the
trial itself, "requires automatic reversal of the conviction
because they infect the entire trial process." Brecht v.
Abrahamson, 507 U.S. 619, 629-630 (1993). On the other
hand, mere "trial errors," which usually "occur during the
presentation of the case to the jury," are "amenable to
harmless-error analysis" because they "may . .. be
quantitatively assessed in the context of other evidence
presented in order to determine [the effect they had on the
trial]." Id. at 629 (quoting Fulminante, 499 U.S. at 307-308).

Violations of the right to counsel may not always be
structural defects which allow a reviewing court to bypass
harmless error analysis, see Sullivan v. Louisiana, 508 U.S.
275, 282-283 (1993) (Rehnquist, C.J., concurring), but
harmless error analysis should never be applied where, as
here, "deprivation of the right to counsel affected--and
contaminated--the entire criminal proceeding", Satterwhite
v. Texas, 486 U.S. 249, 257 (1988). We are convinced that
the absence of counsel at Henderson's suppression hearing,
which handicapped Henderson during the remainder of the
proceedings against him and especially injured his
attorney's ability to argue the facts of his confession to the
jury at trial, contaminated the entire criminal proceeding in
this case. See United States v. Cronic, 466 U.S. 648, 659
_________________________________________________________________

3. But see United States v. Mills, 895 F.2d 897, 904 (2d Cir. 1990) (even
though defendant suffered right to counsel violation when denied
opportunity to make closing argument pro se in hearing to suppress
defendant's incriminating statements, violation was harmless error
because, after motion to suppress was denied, government did not
introduce statements at trial); Richardson v. Lucas, 741 F.2d 753, 757
(5th Cir. 1984) (even if waiver of counsel was invalid, error was
harmless).

                               19
n.25 (1984) ("The Court has uniformly found constitutional
error without any showing of prejudice when counsel was
either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding."). The
effect of this determination is that prejudice is presumed by
the fact of the constitutional error itself.

E.

The sum of these factors--that the deprivation of counsel
from Henderson's suppression hearing was a procedural,
structural defect, that Henderson has the right to introduce
facts at trial in an effort to attack the credibility of the
confession and the impropriety of a harmless error analysis
here--leads us to conclude that the constitutional violation
suffered by Henderson will not be corrected absent a new
trial.

Moreover, we repeat for emphasis that the conclusion we
reach today does not run counter to the teachings of the
Supreme Court or prior decisions of this court. First, the
views stated here do not conflict with the holding or
teachings of Jackson v. Denno, which did not address the
Sixth Amendment Right to Counsel but discussed only a
due process violation. The full guarantee of the Sixth
Amendment gives the defendant the right to make proper
preparation for trial on the basis of testimony adduced at
the suppression hearing, irrespective of the outcome of the
hearing, a constitutional issue that was neither argued nor
decided by the Court in Jackson. In contrast to the jury in
Jackson, which arguably knew too much (and was harmed
by what it knew), the jury in this case had too little
information. What is at stake here is the opportunity of
counsel to utilize at a subsequent trial any information he
may have obtained at the suppression hearing. Nor do we
think that our view is contrary to the teachings and
holdings of cases in this court. For example, in United
States ex rel. Harvin v. Yeager, 428 F.2d 1354, 1358-1359
(3d Cir. 1970), United States ex rel. Montgomery v. Brierley,
414 F.2d 552, 560 (3d Cir. 1969), and United States ex rel.
Dickerson v. Rundle, 363 F.2d 126, 130 (3d Cir. 1966), we
found due process violations where each state prisoner was
denied a Jackson hearing. We have already decided that

                               20
due process requires a very different analysis than the
correction of a Sixth Amendment deprivation. Moreover, in
Yeager, 428 F.2d at 1359, we conditioned the writ on a new
Jackson hearing in which the state court would decide
whether the prisoner's statement at issue was voluntary
and hence admissible, but stated that even if the state
courts "hold the statement admissible, they may still
consider the possibility of granting a new trial, especially if
there is any substantial difference between the evidence
presented at the new hearing and that which had been
submitted to the jury at the trial."

Second, in no way do we ignore the teachings of Brecht,
507 U.S. at 637, which mandates that habeas relief be used
only "to afford relief to those whom society has`grievously
wronged' " and not when there is a mere "reasonable
possibility" of harm to the petitioner. Here, we have not
suggested a mere possibility that the verdict was tainted by
constitutional error; we have found a real constitutional
error--to wit, a violation of the Sixth Amendment Right to
Counsel--one that substantially undermines our confidence
in the reliability of the trial.

Third, we do not disregard the teachings of Waller, 467
U.S. at 50, where the defendant was given a suppression
hearing that was closed to the public in violation of the
Sixth Amendment's guarantee of a public trial. Obviously,
the violation in that case was easily cured by ordering a
new public suppression hearing. In this case, the Sixth
Amendment Right to Counsel will simply not be cured by
ordering a new suppression hearing alone because the
effect of the constitutional error spilled over into the trial
itself.

Therefore, although we possess the power to attach
conditions other than according a successful habeas
petitioner a new trial, we should not do so here. We are not
prepared to rule as a matter of law that a lawyer who
represents a defendant at an unsuccessful suppression
hearing will always be unable, as a result of that hearing,
to uncover facts or develop strategy that will ultimately
benefit his or her client at trial. Holding that Henderson is
entitled only to a new suppression hearing and not a new
trial would be to rule just that. If the confession is not

                               21
suppressed after a new hearing, all that will have been
decided is that there was no illegality in the
Commonwealth's obtaining the confession. This ruling of
law would not deny the defendant's right to raise questions
of fact and credibility to the jury relating to the putative
confession. This is the opportunity that the Sixth
Amendment guarantees a criminal defendant in a "trial, by
an impartial jury of the State and district wherein the crime
shall have been committed". U.S. Const. amend. VI. It is for
efforts like this that the same Amendment affirms and
attests his right "to have the Assistance of Counsel for his
defence."

* * * * * * * * *

We have considered all contentions of the parties and
have concluded that no further discussion is necessary.

The judgment of the district court will be reversed and
the proceedings remanded to the district court for entry of
a writ of habeas corpus, which shall be conditioned upon
the Commonwealth affording petitioner a new hearing on
his motion to suppress his confession and, if the
Commonwealth still wishes to pursue the charges, a new
trial that will abide the decision reached following the
suppression hearing.

                               22
GARTH, Circuit Judge, dissenting:

I agree with the majority of the court that: (1) the AEDPA
does not apply in this case, (2) Henderson has exhausted
his claims, (3) the uncounseled suppression hearing
 949<!>conducted by the Court of Common Pleas violated

Henderson's constitutional rights, and (4) we are therefore
obliged to order the district court to issue the writ of
habeas corpus. I part company with the panel majority on
the one substantial issue in this appeal: the remedy that
must be afforded Henderson "to correct the constitutional
violation found by the court." Hilton v. Braunskill, 481 U.S.
770, 775 (1987). Because I feel strongly that the majority's
analysis is deeply flawed on this point, I feel compelled to
dissent and to explain my views in some depth.

The majority of the panel holds that the writ to be issued
must grant Henderson a new trial, even though neither
Henderson nor the panel majority claims that the
constitutional defect at issue extended beyond the
uncounseled suppression hearing to the trial itself. I, on the
other hand, relying on Supreme Court and Third Circuit
authority, would hold that the writ should be conditioned
only on the grant of a counseled and therefore
constitutional suppression hearing.

I reach this conclusion because the Supreme Court so
held in Jackson v. Denno, 378 U.S. 368 (1964). In Jackson,
the Supreme Court ruled 5 to 4 that, because a new
suppression hearing could cure the constitutional wrong
entirely and minimized the federal intrusion into state
sovereignty, the habeas writ need only direct that a new
suppression hearing be held to determine whether the
confession was voluntary. Thus, a new trial was not
required. See id. at 394-95. The Supreme Court has stood
by this rule. See, e.g., Sims v. Georgia, 385 U.S. 538, 544
(1966). Our court has applied the rule in several cases as
well, and has in each case limited the habeas relief to a
new suppression hearing to determine whether the
confession was in fact voluntary. See, e.g., United States ex
rel. Harvin v. Yeager, 428 F.2d 1354, 1358-59 (3d Cir.
1970) (ordering district court to issue writ conditioned on
grant of suppression hearing); United States ex rel.
Montgomery v. Brierley, 414 F.2d 552, 560 (3d Cir. 1969)

                                23
(same); United States ex rel. Dickerson v. Rundle, 363 F.2d
126, 130 (3d Cir. 1966) (same).

Today the majority has veered away from this well-
established line of cases. In the view of the panel majority,
a suppression hearing alone is insufficient because it would
not completely cure the constitutional wrong, and because
it might unduly interfere with state sovereignty. Maj. Op. at
15-22.

Absent Jackson and its progeny, I would still disagree
with the majority. Awarding Henderson a new trial in the
event that his confession is once again ruled admissible
"provide[s] a totally unjustifiable windfall to a petitioner
who has not been injured by the actions of which[ ]he
complains." Koski v. Samaha, 648 F.2d 790, 798 (1st Cir.
1981). After all, Henderson has not challenged the
constitutional adequacy of his trial, at which he testified to
the circumstances surrounding his confession. Granting
Henderson a bonus new trial based on the "possibility" that
constitutional error might have contributed to his trial even
if his confession were properly admitted "is at odds with the
historic meaning of habeas corpus." Brecht v. Abrahamson,
507 U.S. 619, 637 (1993).

Because the Supreme Court has already rejected the
majority's argument in Jackson, however, I am compelled to
raise a much more serious objection. I believe that the
majority's efforts to finesse and distinguish Jackson v.
Denno is a complete derogation of Supreme Court
authority. Supreme Court judgments are always superior to
our own. Because the Supreme Court has already
considered and rejected the view that the Constitution
requires a new trial to be granted in such circumstances,
and our court has faithfully applied these precepts before in
several cases, I believe the majority's resolution of this case
is contrary not only to good sense, but established law. Its
fanciful speculation as to the impact that Henderson's
unconstitutional suppression hearing might have had on
his trial has unjustifiably disregarded both state
prerogatives and the jurisprudence of both the Supreme
Court and the Third Circuit.

Under Jackson v. Denno, Henderson is constitutionally
entitled to no more than a counseled suppression hearing.

                               24
If his motion to suppress is again denied, that ends it. "Of
course, if the state court, at an evidentiary hearing,
redetermines the facts and decides that [Henderson]'s
confession was involuntary, there must be a new trial on
guilt or innocence without the confession's being admitted
in evidence." Jackson, 378 U.S. at 394. Because the
majority has refused to recognize the Supreme Court's
teaching, I dissent from the remedy afforded to Henderson
by the court.

A.

Jackson v. Denno

In Jackson v. Denno, the Supreme Court invalidated a
New York criminal procedure by which the voluntariness of
confessions was submitted to the jury with appropriate
instructions. The habeas petitioner in that case, Jackson,
had been charged with murder and had confessed in
circumstances indicating that the confession might have
been involuntary. Following New York procedure, the state
trial judge admitted the confession in evidence at trial.
Jackson then took the stand in his defense and recounted
the circumstances of his confession. He was then cross-
examined by the prosecution. Following closing arguments,
the trial court submitted the issue of the confession's
voluntariness to the jury. The jury was told that"if it found
the confession involuntary, it was to disregard it entirely,
and determine guilt or innocence solely from the other
evidence in the case; alternatively, if it found the confession
voluntary, it was to determine its truth or reliability and
afford it weight accordingly." 378 U.S. at 374-75.

The Supreme Court, per Justice White, invalidated the
procedure on the basis that the New York procedure did not
adequately safeguard the defendant's "right to be free of a
conviction based upon a coerced confession." Id. at 377.
The problem, quite simply, was that juries were likely to
believe that even coerced confessions were truthful.
Accordingly, jurors were likely to convict defendants on the
basis of coerced confessions despite the instruction to
disregard such confessions. See Watkins v. Sowders, 449

                               25
U.S. 341, 347 (1981) (discussing Jackson). The Court
concluded that the procedure's failure to provide"a reliable
determination of the voluntariness of the confession" meant
that it could not "withstand constitutional attack under the
Due Process Clause of the Fourteenth Amendment."
Jackson, 378 U.S. at 377.

The Court then turned to the proper remedy, and
confronted the issue that divides the panel today. The issue
was this: when a state conviction is based on a confession
that was admitted in evidence pursuant to a
constitutionally flawed procedure, does the Constitution
require a federal habeas court to enter a writ conditioned
on an entirely new trial, or merely a writ conditioned on the
state conducting a proper suppression hearing?

A majority of the Supreme Court chose the latter. Justice
White, writing for the majority, agreed that the habeas
petitioner was entitled to "an adequate [suppression]
hearing productive of reliable results concerning the
voluntariness of the confession." Id. at 394. However, he
wrote, "[i]t does not follow . . . that Jackson is automatically
entitled to a complete new trial including a retrial of the
issue of guilt or innocence." Id. According to Justice White:

       [I]f at the conclusion of such an evidentiary hearing . . .
       it is determined that Jackson's confession was
       voluntarily given, admissible in evidence, and properly
       to be considered by the jury, we see no constitutional
       necessity at that point for proceeding with a new trial,
       for Jackson has already been tried by a jury with the
       confession placed before it and has been found guilty.
       . . . [W]e cannot say that the Constitution requires a
       new trial if in a soundly conducted collateral
       proceeding, the confession which was admitted at the
       trial is fairly determined to be voluntary.

Id. at 394-96 (emphasis added). If the confession was in
fact voluntary, the Court held, a new trial was not required
because the state's procedure would have created"no
constitutional prejudice" to the defendant: "If the jury relied
on [the voluntary confession], it was entitled to do so." Id.
at 394. "Obviously, the State is free to give Jackson a new
trial if it so chooses," Justice White added,"but for us to

                               26
impose this requirement before the outcome of the new
hearing on voluntariness is known would not comport with
the interests of sound judicial administration and the proper
relationship between federal and state courts." Id. at 395
(emphasis added).

In separate dissents, Justice Black and Justice Clark
each attacked the majority's conclusion that a new
suppression hearing was sufficient to correct the
constitutional violation. According to Justice Clark, a
suppression hearing alone "d[id] not cure the error which
the Court finds present." Id. at 426 (Clark, J., dissenting).
Justice Black agreed, deeming the court's remedy a
"fragmentizing" device that had improperly succeeded in
"sustaining convictions and denying defendants a new trial
where all the facts are heard together." Id. at 410 (Black, J.
dissenting).

B.

Henderson v. Frank

The habeas petitioner in this case, John Henderson, was
also charged with a crime and confessed in circumstances
that raised the possibility that the confession was coerced.
Like Jackson, Henderson was unconstitutionally denied "an
adequate evidentiary hearing productive of reliable results
concerning the voluntariness of his confession." Jackson,
378 U.S. at 394. In Henderson's case, his hearing was
inadequate because his right to the assistance of counsel,
a constitutional right "essential to a fair trial," Gideon v.
Wainright, 372 U.S. 335, 342 (1963), was denied. As was
the case with Jackson, Henderson's confession was
nonetheless admitted in evidence at trial, where Henderson
was represented by counsel.1 Like Jackson, Henderson took
the stand in his own defense at trial and explained to the
jury that his confession was coerced.2 Like Jackson,
_________________________________________________________________

1. As noted, Henderson has not challenged the constitutionality of his
trial.

2. Henderson told the jury that the officers handcuffed him to a chair,
threatened him, told him what to write down in the confession, and
failed to read Henderson his Miranda rights. App. 303-06 (trial
transcript).

                               27
Henderson was then cross-examined by the prosecution.
App. 316. As was the case in Jackson's trial, the trial judge
in Henderson's case instructed the jury "that you must
disregard the confession or the statement unless you are
satisfied by a preponderance of the evidence . . . that the
defendant made the statement voluntarily. . . . If you find
that the defendant made the statement voluntarily, .. .
then you may consider it as evidence against him." App.
341-42. Like Jackson, Henderson was found guilty.

The majority of this court has properly concluded that
Henderson's constitutional right to the assistance of
counsel was violated when he was permitted to proceed in
his suppression hearing pro se without adequate waiver of
counsel. See Maj. Op. 9-12. In holding that the right to the
assistance of counsel was so fundamental to a fair trial that
it was guaranteed to state defendants by the Due Process
clause of the Fourteenth Amendment, the Supreme Court
in Gideon described the intolerable unreliability of
uncounseled proceedings:

       If charged with crime, [the layman] is incapable,
       generally, of determining for himself whether the
       indictment is good or bad. He is unfamiliar with the
       rules of evidence. Left without the aid of counsel he
       may be put on trial without a proper charge, and
       convicted upon incompetent evidence, or evidence
       irrelevant to the issue or otherwise inadmissible. He
       lacks both the skill and knowledge adequately to
       prepare his defense, even though he have a perfect
       one. He requires the guiding hand of counsel at every
       step in the proceedings against him. Without it, though
       he be not guilty, he faces the danger of conviction
       because he does not know how to establish his
       innocence.

Gideon, 372 U.S. at 345 (quoting Powell v. Alabama, 287
U.S. 45, 68-69, 53 S. Ct. 55, 64 (1932)). The panel majority
properly follows our precedent in determining that the trial
judge's failure to ensure that Henderson adequately waived
his right to counsel violated those same rights, and
permitted Henderson to engage in a critical suppression
hearing without "the skill and knowledge adequately to
prepare his defense." Id. That failure denied Henderson that

                               28
"to which he is constitutionally entitled--an adequate
evidentiary hearing productive of reliable results concerning
the voluntariness of his confession," Jackson, 378 U.S. at
394--much like Jackson.

Where the majority diverges from precedent is in its
determination of the proper remedy. Instead of following
Justice White's majority opinion in Jackson v. Denno, the
panel majority sides with the dissenting Justices in that
case and rules that the Constitution requires our court to
order a writ conditioned on the grant of an entirely new
trial, rather a writ conditioned on the grant of a
suppression hearing alone. The panel majority offers two
reasons for its conclusion, both of which were categorically
rejected by the Supreme Court in Jackson.

First, the panel majority adopts Justice Clark's dissent
and rules that a new trial is required because "merely to
have the trial judge hold a hearing on the admissibility of
the confession . . . does not cure the error which the Court
finds present." Jackson, 378 U.S. at 426 (Clark, J.,
dissenting). The panel majority reasons that if a proper
(counseled) suppression hearing had been held, it might
have had "repercussions in plea bargaining, discovery and
trial strategy that would not be cured by a new suppression
hearing alone." Maj. Op. at 17. "[H]ad a skilled attorney
represented Henderson at the suppression hearing," the
majority speculates, "he or she would have confronted the
witnesses against Henderson and studied the
Commonwealth's trial strategy, in the hopes of preparing a
better attack on the factual environment of the confession
at a trial by jury." Maj. Op. at 18. Accordingly,"the
constitutional violation suffered by Henderson will not be
corrected absent a new trial." Maj. Op. at 20.

Whatever merit one may find in the majority's view-- and
I, for one, find none-- it should be enough for us as an
inferior court that this position was litigated before the
Supreme Court, and that it lost. The Supreme Court
explicitly rejected the view that "the constitutional violation
suffered by [the petitioner] will not be corrected absent a
new trial," Maj. Op. at 20, and instead adopted the view
that when the voluntariness of a defendant's confession is
determined in violation of the defendant's rights,"there is

                               29
no constitutional prejudice . . . if the confession is now
properly found to be voluntary and therefore admissible. If
the jury relied upon it, it was entitled to do so." Jackson,
378 U.S. at 394.

In so ruling, the Supreme Court rejected the panel
majority's view that a suppression hearing alone was
insufficient to cure the wrong because the petitioner's
position at trial might have been stronger had there been a
proper suppression hearing before the trial. Such`what if 's
do not rise to the level of "constitutional prejudice," the
Court ruled, and thus are inappropriate bases for habeas
relief. Id. This view is entirely consistent with the remainder
of the Court's habeas jurisprudence, which has stressed
that "granting habeas relief merely because there is a
`reasonable possibility' that [the verdict was tainted by
constitutional error] is at odds with the historic meaning of
habeas corpus." Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (internal citations omitted). See also Barefoot v.
Estelle, 463 U.S. 880, 887 (1983) ("The role of federal
habeas proceedings . . . is secondary and limited."). In other
words, fashioning habeas relief based on unsupported
speculation as to how a constitutional suppression hearing
might have affected the petitioner's trial strategy would
improperly "provide a totally unjustifiable windfall to a
petitioner who has not been injured by the actions of which
[the petitioner] complains." Koski v. Samaha, 648 F.2d 790,
798 (1st Cir. 1981).3
_________________________________________________________________

3. The continuing viability of Jackson's conclusion that a
constitutionally
proper suppression hearing cures the constitutional wrong when the
original hearing was conducted in violation of the defendant's rights is
illustrated by the Supreme Court's unanimous opinion in Waller v.
Georgia, 467 U.S. 39, 50 (1984). In Waller, the Court held that a
suppression hearing that (pursuant to a motion by the state) was closed
to the public violated the defendant's Sixth and Fourteenth Amendment
rights to a public trial. On direct review, the Supreme Court reversed the
conviction, but concluded that a new trial was not required. Justice
Powell wrote that "the remedy should be appropriate to the violation. If,
after a new suppression hearing, essentially the same evidence is
suppressed, a new trial presumably would be a windfall for the
defendant, and not in the public interest." Id. at 50 (citing Jackson, 378
U.S. at 394-96). A new trial was necessary "only if a [constitutionally

                               30
Second, the majority suggests still another reason for its
view that a new trial is required. According to the panel
majority, we should be concerned that ordering a
suppression hearing alone might improperly exceed a
federal court's authority by improperly "revis[ing] the state
court judgment." Fay v. Noia, 372 U.S. 391, 431 (1963).
See also Barry v. Brower, 864 F.2d 295, 300 (3d Cir. 1988)
("Both the historic nature of the writ and principles of
federalism preclude a federal court's direct interference with
a state court's conduct of state litigation.") Maj. Op. at 14,
15. Although the majority never quite fleshes out how this
could be the case, the idea that limiting the remedy to a
suppression hearing might interfere with the state's
sovereignty is astounding in light of Jackson and our own
precedents.4 In Jackson, the Court held that it was limited
to ordering a suppression hearing because ordering a full
trial would interfere with the state's sovereignty. See
Jackson, 378 U.S. at 395 ("[F]or us to impose th[e]
requirement [of a new trial] . . . would not comport with the
proper relationship between federal and state courts."); see
also id. at 427 (Harlan, J., dissenting) (describing the
majority's limited remedy as its "one bow to federalism").
Thus, the majority has suggested that it might be
_________________________________________________________________

proper] suppression hearing results in the suppression of material
evidence not suppressed at the first trial, or in some other material
change in the positions of the parties." Id.

The fact that the Court concluded that a new suppression hearing
cured the constitutional wrong on direct review in Waller is especially
strong evidence that a new trial is an inappropriate remedy here. The
Supreme Court has often stressed that the writ of habeas corpus is an
extraordinary remedy, and that "an error that may justify reversal on
direct appeal will not necessarily support a collateral attack on a final
judgment." Brecht, 507 U.S. at 634. Given the much freer hand courts
have in remedying constitutional wrongs on direct review, the fact that
the unanimous court believed that a new trial was unnecessary on direct
review in Waller strongly reinforces the conclusion in Jackson that it is
unnecessary on habeas review.

4. See United States ex rel. Harvin v. Yeager , 428 F.2d 1354, 1358-59 (3d
Cir. 1970); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
560 (3d Cir. 1969); United States ex rel. Dickerson v. Rundle, 363 F.2d
126, 130 (3d Cir. 1966).

                               31
constitutionally forbidden to do what the Supreme Court
ruled it was constitutionally required to do-- condition the
writ on the grant of a suppression hearing only. 5 I am at a
loss to understand how this could be true.

C.

Distinguishing Jackson

The panel majority attempts to distinguish Jackson v.
Denno by reeling off a list of "factors" that it claims makes
Henderson's case "very different"-- even "completely
different"-- from Jackson. The "sum of these factors," the
majority proclaims, makes Jackson distinguishable and a
new trial necessary to cure the constitutional wrong. Maj.
Op. at 20. An examination of these "factors" shows that
they each applied with equal force to Jackson v. Denno, and
thus fail to provide any possible basis from which Jackson
can be distinguished.

1.

The weakest of the majority's arguments that Jackson is
distinguishable is that the denial of a Sixth Amendment
right to counsel is generally considered a structural defect
rather than a trial error under the framework provided by
Arizona v. Fulminante, 499 U.S. 279 (1991).

I completely agree that the uncounseled suppression
hearing suffered by Henderson was a structural defect in
his trial. The problem is that the constitutional error in
Jackson v. Denno was also a structural defect, for exactly
the same reason: without conducting a new hearing, there
was no way to determine how heavily constitutional error
weighed into the jury's verdict. See Brecht, 507 U.S. at 629.
In fact, in the two cases in which the Supreme Court
_________________________________________________________________

5. The patent weakness of the majority's suggestion that a limited
remedy might improperly "revise the state court judgment," Fay v. Noia,
372 U.S. 391, 431 (1963), is further illustrated by the fact that Justice
Brennan, the author of Fay v. Noia, provided the fifth vote for the
majority in Jackson one year later.

                               32
considered unconstitutional suppression proceedings and
ruled that a new trial was not required to remedy the
wrong, the errors were both structural defects. See
Fulminante, 499 U.S. at 310 (noting that the error in Waller
v. Georgia, 467 U.S. 39, 50 (1984)6 was a structural defect
that "affect[ed] the framework within the trial proceeds,
rather than simply an error in the trial process itself ").7

The error in the majority's analysis is that Fulminante's
"structural defect"/ "trial error" doctrine is used exclusively
to gauge whether a reviewing court needs to grant relief at
all following a constitutional error. If the error is a
structural defect, the court must grant relief; if it is a trial
error, the court need not grant relief unless the admission
of the tainted evidence "had substantial and injurious effect
or influence in determining the jury's verdict." Brecht, 507
U.S. at 631 (citing Kotteakos v. United States, 328 U.S. 750,
776 (1946) (habeas)). Once the court has determined that it
must grant relief, however, and turns to the separate
question of what relief must be granted, the"structural
defect"/"trial error" distinction drops out of the analysis
and becomes completely irrelevant. Accordingly, the panel
majority's emphasis on the fact that the constitutional
wrong is a structural defect answers a question that has
not been asked. It provides no guidance or help in
determining what remedy is required to cure the
constitutional defect.
_________________________________________________________________

6. Discussed in note 3, supra.

7. Because Jackson was decided before the Supreme Court first
introduced the harmless error doctrine in Chapman v. California, 386
U.S. 18 (1967), and nearly a quarter century before Fulminante
formalized the distinction between structural defects and trial errors,
the
Jackson opinion could not actually state that its error was a structural
defect. However, we can be confident that the error in Jackson was a
structural defect because 1) the Fulminante court specifically held that a
nearly identical error in Waller was a structural defect, see Fulminante,
499 U.S. at 310, and 2) the error in Jackson was not something that
could be "quantitatively assessed in the context of other evidence
presented in order to determine the effect it had on the trial." Brecht,
507 U.S. at 629.

Notably, the majority has not made any argument that the error in
Jackson was not a structural defect.

                                 33
2.

The majority also argues that this case is different from
Jackson because the defect in Jackson was not the Sixth
Amendment right to counsel present in this case, but
rather a determination that "a conviction based upon a
coerced confession . . . cannot withstand constitutional
attack under the Due Process Clause of the Fourteenth
Amendment." Maj. Op. at 17 (quoting Jackson, 378 U.S. at
377) (ellipsis in majority opinion). This, we are told, is a
"completely different issue . . . that requires a completely
different analysis." Id.

The flaw in this argument begins with the majority's
gross misuse of ellipses to mischaracterize the holding of
Jackson. The effect of the selective quotation is to foster the
impression that the issue in Jackson was whether a
confession was coerced, rather than, as here, whether a
reliable evidentiary procedure was followed so that the
defendant's rights to a fair trial were upheld. The entire
sentence from which the majority selectively quotes is as
follows:

       In our view, the New York procedure employed in this
       case did not afford a reliable determination of the
       voluntariness of the confession offered in evidence at
       the trial, did not adequately protect Jackson's right to
       be free of a conviction based upon a coerced confession
       and therefore cannot withstand constitutional attack
       under the Due Process Clause of the Fourteenth
       Amendment.

Jackson, 378 U.S. at 377 (emphasis added). As this
quotation shows, the constitutional error in Jackson was
not that Jackson's "conviction [was] based upon a coerced
confession," as the majority states, but that the procedure
"did not afford a reliable determination of the voluntariness
of the confession" so that there was a substantial risk that
Jackson's conviction was based upon a coerced profession.

As a matter of substance, the constitutional wrongs in
the two cases were the same: the petitioners' confessions
were determined in unreliable proceedings. Granted, the
sources of the unreliability are different: in Jackson, the
concern was that jurors would be unable to follow the

                               34
judge's instructions, whereas here, our concern is that a
defendant proceeding without a lawyer would be unable to
defend his case. The substance of the constitutional wrongs
is the same, however: in both cases, the voluntariness of
the confessions was the issue. Because the proceedings in
which the voluntariness of the confessions was determined
were unfair and unreliable, we just cannot be sure that the
petitioners' convictions were based on voluntary
confessions.

Finally, the constitutional wrongs are identical as a
matter of form. Both wrongs are violations of the
Fourteenth Amendment's Due Process Clause, which
guarantees to state criminal defendants those federal
guarantees listed in the Bill of Rights that are "fundamental
and essential to a fair trial." Gideon, 372 U.S. at 340. The
majority concedes that this was the wrong identified in
Jackson, but then tries to pin the constitutional violation
here on the Sixth Amendment, rather than the Fourteenth.
Maj. Op. at 16-17, 21. However, Sixth Amendment
guarantees apply to state proceedings only insofar as the
Due Process clause of the Fourteenth Amendment includes
them. See Gideon, 372 U.S. at 345. Therefore, this alleged
difference is an illusion.

3.

The third and final "factor" that the majority lists as a
ground for distinguishing Jackson is that the denial of
counsel at Henderson's suppression hearing "may have had
repercussions in plea bargaining, discovery, and trial
strategy." Maj. Op. at 17. The participation of a skilled
attorney at the suppression hearing "would have been
beneficial to Henderson's defense," we are told, because it
might have revealed weaknesses in the Commonwealth's
case that could have only been uncovered in a pre-trial
proceeding. Maj. Op. at 17. Even if the judge ruled that the
confession was inadmissible, "a skilled attorney . . . would
have confronted the witnesses against Henderson and
studied the Commonwealth's trial strategy, in the hopes of
preparing a better attack on the factual environment of the
confession at a trial by jury." Id. at 18. This contrasts with
Jackson, we are instructed, because in Jackson the only

                               35
harm suffered by the habeas petitioner was the absence of
"an opportunity to have his confession suppressed-- the
legal outcome of that hearing." Id. at 17. Thus, the majority
claims that the jury in Henderson's trial "had too little
information," whereas the jury in Jackson"arguably knew
too much." Id. at 20.

Here the majority has manufactured a difference between
the two cases by comparing apples and oranges: the
possibility of actual prejudice in Henderson's case, as
compared with the reality of constitutional prejudice in
Jackson. If we apply the same scrutiny to both cases,
however, we see that the reason stated for distinguishing
Henderson's case from Jackson actually applies with equal
force (or lack thereof) to Jackson's case.

In terms of actual prejudice, both Jackson and
Henderson suffered a missed opportunity to "confront[ ] the
witnesses against [them] and [to] stud[y] the
Commonwealth's trial strategy [before trial], in the hopes of
preparing a better attack on the factual environment of the
confession at a trial by jury." Id. at 18. Neither petitioner
was given an adequate opportunity to probe the
prosecution's case against him until the trial itself, where
all attempts to challenge the voluntariness of the
confessions failed. If anything, Henderson fared
substantially better on this count than did Jackson: at least
Henderson's lawyer had available to him at trial a
transcript of Henderson's uncounseled suppression
hearing. In Henderson's case, this benefit was substantial,
because Henderson managed to delve into the
circumstances of his confession in substantially more depth
than did Henderson's counsel at trial. In fact, the transcript
of the uncounseled suppression hearing runs 54 pages;
Henderson's entire defense, by comparison, is contained on
only 21 pages.8

In contrast, Jackson had no opportunity whatsoever to
probe the prosecution's case before trial. If the majority is
right that such missed opportunities to gain tactical
_________________________________________________________________

8. Compare App. 158-211 (uncounseled suppression hearing) with App.
298-319 (trial). Of course, the adequacy of Henderson's trial counsel is
not at issue in this petition.

                               36
advantage are constitutionally relevant, then the case in
which the absence of such opportunities most cries out for
constitutional relief is Jackson's, not Henderson's. Cf.
Jackson, 378 U.S. at 426 (Clark, J., dissenting) .

But of course the majority is not right. Jackson rejected
the view that such possibilities were relevant, and instead
adopted the view that there was "no constitutional
prejudice" so long as a subsequent suppression hearing
later revealed that the confession relied upon by the jury
was properly before it. Id. at 394. In distinguishing between
actual prejudice and constitutional prejudice, the Court
reasonably tailored the constitutional remedy to the
constitutional wrong. Because defendants do not have a
constitutional right to an opportunity to gain a tactical
advantage in pre-trial proceedings, the denial of such
opportunities could not create constitutional prejudice that
could be a relevant consideration in fashioning habeas
relief. Applying this same standard to Henderson's case
leads to the ineluctable conclusion that there could be no
constitutional prejudice to Henderson if a subsequent
suppression hearing later reveals that the confession relied
upon by the jury was properly before it.

D.

This Court's conclusion that a new trial is required if a
counseled suppression hearing reveals that Henderson's
confession was properly admitted at trial is contrary to
reason and directly clashes with the Supreme Court's
holding in Jackson v. Denno. I therefore respectfully
dissent.

A True Copy:
Teste:

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

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