                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-1999

Coss v. Dist Atty Lackawanna
Precedential or Non-Precedential:

Docket 98-7416




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Filed June 28, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7416

EDWARD R. COSS, JR.,
       Appellant

v.

LACKAWANNA COUNTY DISTRICT ATTORNEY;
THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil No. 94-cv-1481)
District Judge: Honorable Thomas I. Vanaskie

Argued March 1, 1999

Before: STAPLETON, RENDELL, and ALDISERT,
Circuit Judges

(Filed June 28, 1999)

       Daniel I. Siegel, Esq. (ARGUED)
       Assistant Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101
        Attorney for Appellant
       William P. O'Malley, Esq. (ARGUED)
       Assistant District Attorney
       Lackawanna County Courthouse
       200 N. Washington Avenue
       Scranton, PA 18503
        Attorney for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Edward Coss ("Coss" or "appellant") urges us to reverse
the District Court's denial of his motion for habeas corpus
relief filed pursuant to 28 U.S.C. S 2254. Coss argues that
his counsel's failure to subpoena certain witnesses to testify
at his trial constitutes ineffective assistance of counsel and
that the District Court erred in failing to so rule. For the
reasons stated below, we will reverse the District Court's
denial of Coss' ineffective assistance claim and remand to
the District Court to issue a conditional writ of habeas
corpus.

I. Facts1

On June 25, 1986, Coss, aged 17, attended a party at the
home of his sister, Carol Ann Frank. Also in attendance
were Coss' brothers, Jimmy and Bobby, Coss' girlfriend,
Sherry Kulick, Carol Ann's roommate, Lisa Frieto, and
Lisa's brother, George Frieto. Most of the guests at the
party consumed alcohol. During the course of the party, an
argument started between Sherry and Lisa, and thereafter,
caused other arguments to erupt among the other guests.
These arguments caused Carol Ann to throw everyone out
of her house. Arguments continued outside of Carol Ann's
house, including one between Jimmy, who was holding a
baseball bat, and Coss. As a result of all the noise, Carol
Ann's landlord called the police. The police arrived at the
_________________________________________________________________

1. Although at his trial Coss' story differed from the facts we recount
here, the District Court clearly credited this version of events, as does
Coss implicitly by the very filing of his motion.

                               2
scene and tried to quell the fights that had developed on
Carol Ann's front lawn. Coss was arrested for disorderly
conduct and taken to police headquarters.

That night, Coss was held in the Lackawanna County
Detention Facility for underage drinking. Coss damaged the
cell in which he was placed and was ultimately charged
with institutional vandalism, criminal mischief, criminal
trespass, simple assault, theft by unlawful taking or
disposition, aggravated assault, resisting arrest, terroristic
threats, and disorderly conduct.

Coss met with his assigned attorney, RoseAnn McGowan,
two times before his trial. The District Court made the
finding of fact that Coss gave McGowan the names and
addresses of several potential witnesses during their first
meeting.2 Counsel gave Coss no notice of the trial date but
contacted him approximately one hour before the trial was
to begin, at which point Coss drove directly to the
courthouse, stopping only to pick up his brother Jimmy at
school.

Coss' trial began on October 30, 1986 and lasted two
days. At the trial, the officers who arrested Coss, Officers
Adamitis and Wrobel, testified that when they arrived at the
scene, individuals began scattering and that they grabbed
Coss as he was running to his car. They testified that Coss
_________________________________________________________________

2. Coss testified at the evidentiary hearing that in the first meeting, he
and McGowan discussed "the whole entire story, how it happened, [and]
who was involved." Coss' second and final meeting with McGowan prior
to his trial occurred after a severance motion, requesting that the
charges in connection with the simple assault be severed from those filed
for the damage to the juvenile detention center, wasfiled in September
1986. Coss alleges that he and McGowan also discussed the names of
possible witnesses at this meeting. McGowan did not testify regarding
her version of what occurred at these meetings. She did testify at the
evidentiary hearing that Coss did not give her the names of any
witnesses he wanted her to subpoena, but then admitted that she did
not specifically remember Coss' case and was instead testifying based on
her general practice as a public defender.

The court also noted that, even if Coss did not provide the names to
McGowan at this time, a cursory review of the police reports would have
identified the names and addresses of some of these witnesses.

                               3
was screaming vulgarities and smelled of alcohol. They
testified that, after being grabbed, Coss began pushing
Officer Wrobel and was then arrested. They also testified
that as Officer Adamitis attempted to grab Coss' brother
Bobby, Coss punched Officer Adamitis in the face. This
punch is the basis for Coss' simple assault charge, which
is the charge at issue in this appeal. Finally, Officer Wrobel
testified that an individual named George also hindered
their attempts to arrest Bobby.

The only witnesses to testify on Coss' behalf were Coss
and Jimmy.3 They testified that, on the night in question,
they were in their sister's driveway, along with their brother
Bobby, and had been there no more than fifteen minutes
when two police officers arrived and began to assault Bobby
and Coss. Coss stated that there was no party at Carol
Ann's house that night, that he had not been drinking, that
he did not curse or punch anyone, and that he did not
know who the officer was referring to when he stated that
an individual named George was at the scene. Jimmy
corroborated this story, stating that there was no party at
Carol Ann's, that they were only at Carol Ann's house to
give her a camera, that he had not been drinking, and that
Coss did not hit a police officer.

The charges ultimately presented to the jury were
institutional vandalism and criminal mischief, simple
assault, resisting arrest, and disorderly conduct. The jury
convicted Coss of institutional vandalism, criminal
mischief, and simple assault.4 Coss was sentenced on
January 30, 1987, receiving six months to one year on the
simple assault charge and six months to one year on the
institutional vandalism charge. The simple assault and
institutional vandalism/criminal mischief sentences ran
consecutively. Coss has already served his sentence for
_________________________________________________________________

3. McGowan did not suggest that Jimmy testify. Instead, Coss, on his
own initiative, brought Jimmy to the trial and asked him to testify.
McGowan admitted that she never subpoenaed, interviewed, or prepared
Jimmy.

4. The institutional vandalism and criminal mischief result from Coss'
destruction of the detention cell and are not related to Coss' interaction
with the police outside of Carol Ann's house.

                               4
these convictions. Presently, he is serving a sentence based
on charges from a 1990 conviction, unrelated to his 1986
convictions. Although he has served the term for the
assault charge, Coss urges that his claim is not moot
because the assault charge was used to enhance the
sentence from a 1990 conviction for which he is still being
punished.

II. Procedural Posture

On September 15, 1994, Coss filed a pro se petition for
writ of habeas corpus pursuant to S 2254. Cossfiled an
amended petition on November 29, 1995, and a Second
Petition for Writ of Habeas Corpus on November 7, 1996. In
the petition, Coss claimed that he was denied his Sixth
Amendment right to effective assistance of counsel based
on, among other things, counsel's failure to subpoena any
of the witnesses he requested.5

On April 20, 1998, an evidentiary hearing was held to
address Coss' ineffective assistance of counsel claims. At
the hearing, each of the witnesses that Coss stated he had
identified to counsel, namely, Carol Ann, Bobby, Sherry,
and George, testified that McGowan never contacted them
regarding Coss' trial and that Coss did not strike any police
officer. Bobby, Sherry, and George testified that the first
thing that the police did upon arrival was approach Coss
and place him in the back of one of the police cars. They
testified that the police then chased after Bobby, at which
point George jumped on the back of one of the officers to
try to hinder his attempt to arrest Bobby. Thus, according
to these witnesses' testimony, Coss was in the police car
the entire time the police attempted to arrest Bobby.
According to the District Court, "McGowan's recollection of
the case [at the evidentiary hearing] was somewhat sketchy."6
_________________________________________________________________

5. Coss also alleged that his counsel was ineffective for empaneling two
jurors adverse to Coss' interests, failing to have the institutional
vandalism and criminal mischief charges dismissed, and failing to file
post-trial motions. The District Court dismissed these other bases of
ineffective counsel and Coss does not appeal their dismissal.

6. From a review of the evidentiary hearing transcript, we agree with the
District Court's characterization of McGowan's memory of this case.
McGowan was asked the following at the evidentiary hearing:

                                5
She conceded during the hearing that she did not
investigate the events surrounding Coss' arrest, electing not
to dispatch her investigator to interview any of the
witnesses at issue, and defended her actions by stating that
"Coss must have told her not to subpoena them." Dist. Ct.
Op. at 16 (June 10, 1998).

Following the hearing, the District Court denied Coss'
ineffective assistance of counsel claims. The court held
that, although McGowan's failure to subpoena these
witnesses "fell below an objective standard of
reasonableness," Coss failed to prove that he was
prejudiced by McGowan's failure because the verdict would
_________________________________________________________________

        Q. Ms. McGowan, is your testimony, today, base d on actual
       recollection of this particular case, the Coss case, or are you
       testifying, based upon your general practice, as a Public Defender,
       when you were employed in the Public Defender's Office?

        A. It would -- it would be in part, yes, and in part, no. Because
       certain portions that I've responded to, I have direct
recollection. As
       I said, I have direct recollection -- once I looked at the
sentencing
       report, I had direct recollection, exactly, what had transpired. I
       mean, once Mr. Coss told Judge Cottone, according to the
       transcript, that he was thinking about an appeal, but they were
       telling him this, and then I just -- I recalled. I do recall
distinctly,
       exactly, that they -- the they . . was advising him this way, and
he
       would not listen to me, okay? When we wanted tofile the Post-trial
       Motions on that, he did not want them. . . . That is direct
       recollection. Now, the other stuff may be general.

       . . . .

        Q. Ms. McGowan, what I'm asking you about is, do you,
       specifically, remember having this conversation with Eddie Coss
       about these witnesses or is your testimony that this is how you
       normally conduct yourself?

        A. No, no. No, no, no, it wouldn't be. I would have asked him
       what about these people, what about these, what about these? You
       know, what were they doing there or how are they related to this?

This questioning proceeds, with McGowan answering the questions
regarding her failure to subpoena the witnesses in the form of what she
"would have" done or what Coss "must have" said, as opposed to telling
the court what she "did" or what Coss "said."
6
not have been different given the inconsistency in the
accounts told by Coss and his brother on the one hand,
and the witnesses and the police on the other. Coss appeals
this decision of the District Court, arguing on appeal that
the District Court erred in its application of the prejudice
prong of the ineffective assistance of counsel test as stated
in Strickland v. Washington, 466 U.S. 668 (1984).

III. Jurisdiction

Before proceeding to the merits of Coss' ineffective
counsel claim, we will first review whether the District
Court had subject matter jurisdiction over this habeas
petition. Section 2254 confers jurisdiction on United States
district courts to entertain petitions for habeas corpus relief
only from persons who are "in custody" in violation of the
Constitution or laws or treaties of the United States. The
Supreme Court has interpreted S 2254 as mandating that
the petitioner be "in custody" pursuant to the conviction or
sentence he seeks to attack at the time his petition is filed.
See Carafas v. LaVallee, 391 U.S. 234 (1968). A habeas
petitioner does not remain "in custody" under a conviction
"after the sentence imposed for it has fully expired, merely
because of the possibility that the prior conviction will be
used to enhance the sentences imposed for any subsequent
crimes of which he is convicted." Maleng v. Cook, 490 U.S.
488, 492 (1989) (per curiam). A petitioner does, however,
satisfy the "in custody" requirement for federal habeas
jurisdiction when he asserts a challenge to a sentence he is
currently serving that has been enhanced by the allegedly
invalid prior conviction. Id. at 493. Moreover, in United
States v. Tucker, 404 U.S. 443 (1972), the Supreme Court
held that a prisoner could attack in a federal habeas
proceeding an allegedly unconstitutional conviction, even if
he has served in entirety the sentence resulting from the
conviction, if that conviction had an effect on a present
sentence. See also Young v. Vaughn, 83 F.3d 72, 76 (3d Cir.
1996) (holding that "a prisoner may attack his current
sentence by a habeas challenge to the constitutionality of
an expired conviction if that conviction was used to
enhance his current sentence").

                               7
In this case, although Coss has already served the
sentence resulting from the allegedly unconstitutional 1986
convictions, he is currently serving a sentence for an
unrelated, 1990 conviction in the Court of Common Pleas
of Lackawanna County for aggravated assault. Coss alleges
that the sentence from his 1990 conviction was adversely
affected by the 1986 assault conviction. The sentencing
judge did, in fact, refer to Coss' 1986 conviction for
assaulting a police officer in sentencing him to the top of
the standard range for his 1990 conviction. Coss is thus
attacking his prior conviction in an attempt to have his
current sentence, which relied on his prior conviction,
reevaluated. The District Court therefore appropriately
construed Coss' petition as challenging the 1990 conviction
for aggravated assault rather than his expired conviction,
see id. at 73, and properly concluded that it had
jurisdiction over his S 2254 motion petition. Id. We have
appellate jurisdiction pursuant to 28 U.S.C. SS 1291 &
2253.

IV. Exhaustion

Absent a valid excuse, a habeas petitioner must present
all federal claims to the state courts. 28 U.S.C.S 2254(b);
see also Rose v. Lundy, 455 U.S. 509 (1982). "The
exhaustion requirement ensures that state courts have the
first opportunity to review federal constitutional challenges
to state convictions and preserves the role of the state
courts in protecting federally guaranteed rights." Evans v.
Court of Common Pleas, Delaware County, Pa., 959 F.2d
1227, 1230 (3d Cir. 1992) (citing O'Halloran v. Ryan, 835
F.2d 506, 509 (3d Cir. 1987)). Of course, "[i]nexcusable or
inordinate delay by the state in processing claims for relief
may render the state remedy effectively unavailable" and
exhaustion will be excused. Wojtczak v. Fulcomer, 800 F.2d
353, 354 (3d Cir. 1986).

Prior to filing his S 2254 petition, Coss had a petition
challenging his 1986 conviction pending under
Pennsylvania's Post Conviction Hearing Act (PCHA), 42 Pa.
Cons. Stat. S 9541, et seq. (amended 1988), for
approximately seven years without any activity. Under
these circumstances, the District Court excused the

                               8
exhaustion requirement and we can find no fault with that
determination. Appellant has not, however, presented to the
Pennsylvania state courts his claim that the invalid 1986
conviction was used to enhance his subsequent conviction
in 1990, the conviction being challenged by the underlying
habeas petition. Nonetheless, we conclude that this is not
a situation in which the District Court was faced with a
mixed petition necessitating a dismissal under Rose v.
Lundy. As was made clear by the Pennsylvania Supreme
Court in Commonwealth v. Ahlborn, 699 A.2d 718 (1997),
collateral relief is not available under either the Post
Conviction Hearing Act or under the common law remedies
of state habeas corpus or coram nobis for a petitioner who
is not currently serving a sentence of imprisonment for the
conviction he wishes to challenge, even if petitioner
contends that collateral consequences stem from that
conviction. Accordingly, insofar as state law clearly
forecloses state court review of Coss' "collateral
consequence" claim, the District Court properly excused
exhaustion and entertained the claim on its merit. 7 See,
e.g., Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.
1986) (citing Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(per curiam)).

V. Applicable Law

Because Coss submitted filings to the District Court both
before and after the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), we think it
necessary to briefly discuss the law governing this action.
We conclude that the amendments brought about by
AEDPA do not apply to this case as Coss' original petition
and amendment were both filed prior to AEDPA's effective
date. See Lindh v. Murphy, 521 U.S. 320 (1997);
McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999); United
States v. Skandier, 125 F.3d 178 (3d Cir. 1997). Though
Coss did file a "Second Petition" in November 1996, i.e.,
_________________________________________________________________

7. We view Commonwealth v. Ahlborn not as erecting a "procedural bar,"
but as a statement that there is no available state remedy for the claim
that the present sentence was incorrectly enhanced by an invalid prior
conviction.

                               9
after the enactment of AEDPA, that petition did not add
new claims, but merely waived, as was permitted by the
District Court's order of October 23, 1996, those claims
presented in his original petition that were determined by
the District Court to be unexhausted. See, e.g., Rose, 455
U.S. at 510 (a petitioner may amend his petition to delete
unexhausted claims); McMahon v. Fulcomer, 821 F.2d 934
(3d Cir. 1987) (same).

Amendments to applications for writs of habeas corpus
are statutorily provided for by 28 U.S.C. S 2242, which
states that such petitions "may be amended or
supplemented as provided in the rules of procedure
applicable to civil actions." See Rule 11 of the Rules
Governing Section 2254 Cases; see also Calderon v.
Ashmus, 523 U.S. 740, -- , 118 S. Ct. 1694, 1700 (1998)
(Breyer, J., concurring) (amendments to habeas petitions
under Rule 11 are governed by Fed. R. Civ. P. 15 unless
otherwise expressly governed by the statute). In accordance
with Rule 15(a), a party may amend a pleading after a
responsive pleading has been served "by leave of court."
Fed. R. Civ. P. 15(a). Moreover, pursuant to Rule 15(c)(2) of
the Federal Rules of Civil Procedure, if the claim asserted in
the amended petition "arose out of the conduct,
transaction, or occurrences set forth" in the original
petition, the amendment of the pleading relates back to the
date the original petition was filed. As noted previously, the
claims in Coss' second amended petition not only "arose
out of the conduct" set forth in the original habeas petition
and amendment, they were the same claims, minus those
that were unexhausted. In fairness, we view his petition
filed after AEDPA as tantamount to a further amendment to
his initial filing, which he filed at the direction of the
District Court, expressing Coss' intention to proceed with
his exhausted claims. Therefore, we view all the claims
raised as having been asserted in a petition filed prior to
AEDPA's enactment date. Accordingly, under pre-AEDPA
habeas requirements, Coss was obligated to obtain a
certificate of probable cause in order to appeal from the
District Court's judgment dismissing his habeas corpus
petition.

The pre-AEDPA certificate of probable cause did not
require specification of issues and placed the entire case

                                10
before the court of appeals. See Ramsey v. Bowersox, 149
F.3d 749, 759 (8th Cir. 1998); Herrera v. United States, 96
F.3d 1010, 1012 (7th Cir. 1996); see also United States ex
rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978). The post-
AEDPA certificate of appealability, on the other hand,
requires specification as to which issues satisfy the
standard set forth in 28 U.S.C. S 2253(c)(2), i.e., those
issues for which the applicant has made a substantial
showing of the denial of a constitutional right. In the
instant case, rather than granting appellant a certificate of
probable cause to appeal, the District Court granted Coss
a certificate of appealability limited to his claim that
counsel rendered constitutionally ineffective assistance by
failing to subpoena witnesses on the assault charge. Under
pre-AEDPA law we determined that it is inappropriate for a
District Court to prescribe the issues or issue which may be
considered in support of or in opposition to a judgment,
Hickey, 571 F.2d at 766, and appellant is free to choose
which claims to assert on appeal. In this case, however,
because Coss, through his attorney, limited his request for
a certificate of appealability on appeal to the one issue
he believed to be of "arguable merit," that is, the
ineffectiveness of counsel claim at issue, we see no reason
to extend our review beyond the merits of that claim.
Moreover, given our disposition of the appeal, we see little
difference an expanded review would make.

VI. Discussion

At issue is the District Court's application of the
prejudice prong of the Strickland ineffective assistance of
counsel test. Since Coss' claim involves the legal
component of an ineffective assistance of counsel claim, we
exercise plenary review. See Parrish v. Fulcomer, 150 F.3d
326, 328 (3d Cir. 1998).

In order to obtain relief based on an ineffective assistance
of counsel claim, a defendant must not only show that his
counsel's performance was objectively unreasonable, but
also that it prejudiced his case. See Strickland v.
Washington, 466 U.S. at 692. The District Court denied
Coss habeas relief, despite its finding that counsel's failure
to subpoena the witnesses at issue was objectively

                               11
unreasonable, because Coss had failed to demonstrate
prejudice.8

To prove prejudice under the second prong of the
Strickland test, a defendant must "establish a reasonable
probability -- one sufficient to undermine our confidence in
the outcome -- that the jury's verdict would have been
different if not for counsel's errors." United States v. Gray,
878 F.2d 702, 712 (3d Cir. 1989). The District Court
reached its conclusion that Coss had failed to demonstrate
prejudice based on the fact that the witnesses who testified
at the evidentiary hearing painted a completely different
picture of the incident leading to Coss' arrest from that told
by Coss and Jimmy at trial. The testimony at the
evidentiary hearing made clear that, on the night of the
incident, Coss had been drinking at a party that had to be
broken up by the police. This version of events is a far cry
from Coss' trial testimony of a calm, quiet evening
sabotaged by two rogue police officers. Assuming that,
regardless of counsel's error, Coss still would have testified,
and would have testified in the way that he did, the District
Court reasoned that the failure to call these witnesses was
not prejudicial to Coss, as their testimony, if offered, would
only have suggested to the jury that Coss was lying on the
witness stand and that Coss was drunk and excitable
during the incident. Because this case turned on a
credibility determination between Coss and the officers, the
District Court reasoned that Coss could not have been
prejudiced by counsel's failure to call witnesses who only
would have contradicted Coss' version of the facts,
destroying his credibility with the jury.9 The District Court
_________________________________________________________________

8. We are not asked to review the issue of the reasonableness of
counsel's actions as justifiable or strategic decisions. Here, Coss'
attorney claimed no tactical merit to her failures except to say that she
must have done what Coss wanted in not subpoenaing witnesses; nor
does the government contest the District Court'sfinding that her
conduct "fell below objective standards of reasonableness."

9. The District Court also considered that Carol Ann and Bobby's
testimony would have been suspect since they are Coss' siblings, that
Sherry's testimony would have been suspect since she was Coss'
girlfriend, and that George Frieto's testimony, while seemingly beneficial
to Coss in that he testified that it was he who attacked the officer, is
also
not inconsistent with the officer's testimony that an individual named
George, in addition to Coss, tried to hinder Bobby's arrest.

                               12
thus concluded that the outcome of the trial would have
been no different, that is, Coss still would have been found
guilty of assaulting the officer, absent counsel's failure.

We disagree with the District Court's reasoning. While it
is unlikely that a court can determine with certainty the
result of the proceedings absent counsel's error, we must
examine the "breadth of the evidence" and examine whether
it is sufficient to undermine our confidence that the case
would have come out in the way that it did absent counsel's
errors. United States v. Kauffman, 109 F.3d 186, 191 (3d
Cir. 1997). Having examined the breadth of the evidence in
this case, including the evidentiary hearing transcript, we
conclude that there is a reasonable probability that, had
counsel subpoenaed the witnesses at issue, Coss would not
have been found guilty of assaulting the officer.

As a result of counsel's failure to conduct an
investigation into the events surrounding Coss' arrest on
the night of June 25, 1986, only Coss and his younger
brother Jimmy testified in Coss' defense. It cannot be
doubted that Coss and Jimmy decided to try to conceal
what had occurred that evening -- that is, the fact that on
the night in question they were drinking, underage, at a
party -- during their testimony. Regardless of Coss'
motivation to lie about the context of the incident provoking
his arrest, he and Jimmy testified that Coss did not assault
a police officer. At the evidentiary hearing held to
investigate Coss' ineffective counsel claims, Carol Ann,
Bobby, Sherry, and George all testified that there was a
party at Carol Ann's house, that the people at the party
were consuming alcohol, that a fight broke out, and that
the police came to break up the fight. Most importantly,
however, Carol Ann, Bobby, Sherry, and George testified
consistently that Coss did not punch a police officer, and
Bobby, Sherry, and George testified consistently that
George jumped on a police officer's back when the officer
assaulted Bobby. Finally, they also testified consistently
that, at the time the officers arrested Bobby, which,
according to the officers, is the time that Coss punched the
officer, Coss was sitting in the police car with the door shut.10
_________________________________________________________________

10. It is important to note that all witnesses at the evidentiary hearing
were sequestered, thus bolstering the credibility of these witnesses'
convincingly consistent versions of the critical events.

                               13
Thus, although the witnesses' rendition of what happened
on the night in question conflicts in large part with Coss'
original version of the story, all accounts of the evening are
consistent in their most significant respect, the fact that
Coss did not commit the assault alleged.

In our view, the District Court employed too narrow an
approach in analyzing Coss' claim of prejudice. When it
reached the prejudice prong of the Strickland test, the
District Court stated that " `[p]rejudice' to a defendant from
the failure to call witnesses should be assessed in the
context of the other testimony presented by the defense
witnesses." Dist. Ct. Op. at 18 (June 10, 1998) (emphasis
added). The District Court then asked whether the result of
this trial would have been any different if, instead of only
Coss and Jimmy testifying in Coss' defense, Coss, Jimmy,
and the other four witnesses had testified in Coss' defense,
assuming not only that Coss would still testify, but would
tell the tale that he did at trial.

Strickland requires that a court consider"the totality of
the evidence before the judge or jury" in determining
prejudice. 466 U.S. at 695. It does not require, however, the
court to ignore the way in which the "totality" would
present itself if counsel's conduct had been objectively
reasonable. Strickland also recognizes that some errors are
so great that a court cannot merely recall the proceedings
as they occurred with counsel's error, and then, as the
District Court did here, merely add the evidence not
presented to determine the alternative outcome of the trial
absent counsel's mistake. "Some errors will have had a
pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and some
will have had an isolated, trivial effect." Id. at 696-97.

Here, counsel's error had a pervasive effect, altering the
entire evidentiary picture at trial. The testimony of the
witnesses not presented should not be considered as merely
a hypothetical supplement to the evidence offered, with the
remainder of the trial presumed to unfold as it actually did.
Considering the totality of the evidence, we believe that,
had counsel subpoenaed the witnesses and heard from
them their version of the events, including the fact that,
although the police were partially correct in their

                               14
allegations, it was George, not Coss, who assaulted the
officer, she would not have presented at trial all versions of
the evening's events, including Coss' clearly fictional
rendition. When we assume the reasonably probable
outcome without counsel's ineffectiveness, we must also
assume a scenario that envisions counsel's acting
effectively.11 The District Court should have realized and
considered the different course that the trial would
probably have taken had counsel acted in an objectively
reasonable manner by subpoenaing and interviewing these
witnesses, and then presenting a defense consistent with
their testimony. If counsel had interviewed these witnesses,
we believe that there is a reasonable probability that Coss
would not have testified at all, or that Coss would have
testified consistently with the other witnesses, thus
avoiding the contradictory testimony that troubled the
District Court.

We also note that recent Supreme Court jurisprudence
has provided additional insight into the "outcome" test,
which suggests that, in determining whether a defendant
was prejudiced by counsel's ineffectiveness, we should also
inquire whether counsel's conduct rendered the verdict
"unreliable." Because the outcome test can produce
untoward results depending on the facts, the Supreme
Court has emphasized that the prejudice inquiry, at its
core, involves concepts of reliability and fairness. In
Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme
Court was faced with the question of "whether counsel's
failure to make an objection in a state criminal sentencing
proceeding -- an objection that would have been supported
by a decision which subsequently was overruled --
constitutes `prejudice' " under Strickland. 506 U.S. at 366.
The court of appeals, in a divided opinion, had upheld
_________________________________________________________________

11. In fact, as pointed out by appellant, if counsel had put both Coss
and the witnesses at issue on the stand and presented an inconsistent
theory of defense, that in itself could constitute ineffective assistance.
See Bland v. California Dept. of Corrections, 20 F.3d 1469, 1479 (9th Cir.
1994). Of course, counsel cannot rely on Bland to say that it was proper
for her not to offer the witnesses' testimony in her attempt to present a
consistent theory of defense, since she did not interview these witnesses
to know of any inconsistency.

                               15
defendant's ineffective counsel claim, even though it had
two years earlier overruled the decision that was the basis
for defendant's ineffectiveness claim; thus, the omitted
objection that was the basis of counsel's alleged
ineffectiveness would have been overruled under current
law.12 Fretwell v. Lockhart , 946 F.2d 571 (8th Cir. 1991),
rev'd, 506 U.S. 364 (1993). The majority reasoned that
defendant was entitled to the circuit's case law that was in
effect at the time of his sentencing because, if counsel had
made the objection at issue at that time, the trial court
would have had to sustain it and the outcome of the
proceeding would have been different. Id. at 577. The
Supreme Court reversed this decision, stating that the
prejudice component of the Strickland test focuses not just
on whether the outcome of a proceeding would have been
different but for counsel's ineffectiveness, but on"whether
counsel's deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair."
Fretwell, 506 U.S. at 372. "Unreliability or unfairness does
not result if the ineffectiveness of counsel does not deprive
the defendant of any substantive or procedural right to
which the law entitles him." Id. The Court concluded that,
despite the fact that defendant was not reaping the benefit
of the law in effect at the time of his sentencing, since
current case law held that a defendant was not entitled to
the particular objection at issue, defendant had not been
denied any substantive or procedural right to which the law
entitles him and "[t]he result of the sentencing proceeding
in the present case was neither unfair nor unreliable." Id.
at 371. In so honing and clarifying the prejudice test, the
_________________________________________________________________

12. Defendant argued that his counsel should have made an objection
based on Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985) (holding that
a death sentence is unconstitutional if it is based on an aggravating
factor that duplicates an element of the underlying felony). The Eighth
Circuit overruled Collins in light of the Supreme Court's decision in
Lowenfield v. Phelps, 484 U.S. 231 (1988) (holding that a death sentence
was not invalid on the ground that the sole aggravating circumstance
found by the jury was identical to an element of the capital crime of
which defendant was convicted). See Perry v. Lockhart, 871 F.2d 1384
(8th Cir. 1989) (overruling Collins in light of Lowenfield).

                               16
court harkened back to similar reasoning in Nix v.
Whiteside, 475 U.S. 157 (1986).13

While in both Nix v. Whiteside and Lockhart v. Fretwell
the application of concepts of reliability and fairness caused
the court to conclude that a defendant was not prejudiced
even though the outcome would have been different absent
counsel's alleged ineffectiveness, we find the reasoning of
these opinions to be helpful nonetheless here, where in the
process of examining the probable effect of counsel's error,
the District Court did not consider whether the proceeding
reached an unreliable, unfair result. See Fretwell, 946 F.2d
at 579 (dissenting opinion).

Our analysis of this aspect of the second prong of
Strickland is not unlike our ruling in Kauffman, 109 F.3d
186, in which we held that defense counsel was ineffective
for failing to investigate an insanity defense for a defendant
when counsel had received a letter from a doctor
supporting such a defense. Counsel claimed that he did not
pursue this defense, and instead encouraged his client to
plead guilty, because he viewed the insanity defense as
inconsistent with defendant's conduct that demonstrated
that he knew and appreciated the criminal nature of his
acts. The district court had found no ineffectiveness and no
prejudice because it concluded that the outcome would
probably have been the same -- Kauffman would have been
found guilty -- with or without counsel's alleged
ineffectiveness. On appeal, however, we noted that"the
breadth of the evidence adduced at the evidentiary hearing
_________________________________________________________________

13. In Nix v. Whiteside, the defendant argued that he received ineffective
assistance of counsel because his counsel refused to aid him in
presenting perjured testimony. Although it seems likely that such
conduct on the part of counsel could have an effect on the trial's
outcome, the Court held as a matter of law that "counsel's conduct
complained of here cannot establish the prejudice required for relief
under the second strand of the Strickland inquiry." Nix, 475 U.S. at 175.
The Court reasoned that, under Strickland, the "benchmark" of an
ineffective-assistance claim is the fairness and reliability of the
adversary
proceeding, and that "[w]hether he was persuaded or compelled to desist
from perjury, Whiteside has no valid claim that confidence in the result
of his trial has been diminished by his desisting from the contemplated
perjury." Id.

                               17
is sufficient to undermine our confidence that Zorbaugh
would have advised his client to plead guilty rather than
proceed to trial and that Kauffman would have accepted
that advice." Id. at 191. Defendant was prejudiced by
counsel's conduct because there was a reasonable
probability "that the outcome of these proceedings would
have been different had his counsel not failed in this duty
to investigate the evidence obtainable from various health
professionals." Id. In essence, we used our own skepticism
regarding the reliability and fairness of the result to inform
our determination as to the outcome.

While we do not wish to overstate the applicability of Nix
and Fretwell to the instant situation -- since they are
clearly distinguishable -- nevertheless, they act as a
reminder that the concept of reliability and fairness should
serve as a guide as we make the prejudice determination.
In determining whether there is a reasonable probability
that the outcome would have been different absent
counsel's ineffectiveness, the district court should look at
whether the outcome that did occur was reliable and fair in
light of all the evidence before it. In Kauffman, that
evidence demonstrated that the defendant may well have
been totally psychotic and therefore not guilty; similarly,
here, that evidence tended to show that Coss was innocent
of the assault charge. The results reached in the trial were
unreliable and the outcome, had counsel been effective,
may well have been different. We think that it is helpful to
consider the reliability and fairness of the result reached as
an aid to reaching the appropriate conclusion as to the
probable outcome had counsel's ineffectiveness not been a
factor.

Thus, we believe that counsel's failure to subpoena these
witnesses who would have all testified as to Coss' innocence
as to the simple assault renders the District Court's view
that the outcome of the trial would have been the same
with or without these witnesses to be flawed. In light of the
amount of exculpatory evidence that was in fact available,
yet not presented to the jury, we believe that counsel's
conduct made the result of Coss' trial fundamentally unfair
and unreliable, and the outcome would have likely been
different if the witnesses had been called. Thus, Coss has

                               18
met his burden under Strickland, and subsequent Supreme
Court case law clarifying Strickland, to prove that he was
prejudiced by his counsel's failure to subpoena the
witnesses at issue.

VII. Relief

Having determined that Coss' conviction for assault is
constitutionally defective, we must determine what habeas
relief should be afforded to him. We would normally
remand this issue for determination by the District Court,
but due to our concern for the defendant's continued
confinement based on an unconstitutional conviction --
assuming the assault conviction did in fact play a role in
enhancing the sentence he now serves -- and because the
issue is one that has not previously received specific
attention in the courts, we will determine the relief we will
provide, requiring that the writ be conditioned as we deem
appropriate.

We must decide between the two apparent choices for
relief: condition the writ on the state's granting Coss a
retrial on the 1986 assault charge and, if the result of the
retrial differs from the previous result, a subsequent
resentencing on Coss' current conviction, removing from
Coss' current sentence any enhancement based on the
prior unconstitutional conviction; or, condition the writ on
the state's resentencing of Coss for his current conviction
without any enhancement due to the prior unconstitutional
conviction.14 While a retrial is the usual relief granted in a
habeas proceeding based on ineffective assistance of
counsel in connection with a current conviction, the
Supreme Court precedent has required only resentencing
absent consideration of the prior, unconstitutional
conviction as the proper relief in this situation. See Tucker,
404 U.S. 443. For the reasons stated herein, we conclude
that the proper relief under these circumstances is the
latter of these two options, resentencing absent
consideration of the unconstitutional conviction.
_________________________________________________________________

14. In his various habeas petitions, Coss has consistently sought a new
trial and a new sentencing hearing.

                                19
The writ of habeas corpus is a civil remedy against
unconstitutional confinement. See Fay v. Noia, 372 U.S.
391, 423-24 (1963). It is not "a stage of the state criminal
proceedings" or "an appeal therefrom." Id. at 424. Thus, in
an important way, habeas proceedings are independent
from the criminal proceedings that have already occurred,
serving only to judge and to correct that which results in
unconstitutional confinement. In many cases, the issue of
unconstitutional confinement is unrelated to the question
of guilt or innocence. It may, as in the case at hand, relate
to a current sentence that has been enhanced by an
expired, yet unconstitutional conviction. A sentence which
is enhanced based on a prior unconstitutional conviction,
although appearing more attenuated from the actual wrong
than a person's incarceration following an unconstitutional
trial, is nonetheless unconstitutional confinement and must
be corrected. See Tucker, 404 U.S. at 449.

We are guided by the Supreme Court decision in Tucker
in which, as here, the Court granted habeas relief based on
a prior conviction that had been served in full, but that had
an enhancement effect on the petitioner's current sentence.
The Court found the petitioner's current confinement
unconstitutional because it was based, in part, on a prior
conviction resulting from a trial at which he was denied his
constitutional right to counsel. Without any consideration
of the petitioner's probable guilt or innocence as to the
prior offense, the Court ordered the writ conditioned upon
petitioner's resentencing absent any consideration of the
prior, unconstitutional conviction. Since the prior
conviction was found unconstitutional, it could have no
impact on the petitioner's current sentence. See id. at 447-
48 (stating that the real question is not whether the
outcome of the earlier prosecutions would have been
different if Tucker had counsel, "but whether the sentence
. . . might have been different if the sentencing judge had
known that at least two of [Tucker's] previous convictions
had been unconstitutionally obtained").

In Maleng v. Cook, the Court was faced with the issue of
whether the petitioner was "in custody" in order to confer
habeas jurisdiction such that the petitioner could challenge
his sentence, enhanced by an allegedly unconstitutional,

                               20
expired conviction. The Court limited itself to the narrow
issue of custody, but expressly recognized the possibility of
challenging an expired conviction in connection with an
attack on a current sentence enhanced by the prior
conviction. In this case, however, unlike Tucker, the prior
conviction was challenged based on the court's failure to
hold a competency hearing.

We have since applied the reasoning in Tucker and
Maleng, holding in Clark v. Commonwealth, 892 F.2d 1142
(3d Cir. 1989), that habeas relief was available to a
petitioner whose current sentence was based in part on
prior convictions tainted by the denial of his constitutional
right to due process. Consistent with the relief granted in
Tucker, we granted the petitioner's writ conditioned on
resentencing for the subsequent offense absent
consideration of the prior conviction. Id. at 1149 n.10
(stating that the only relief available under Tucker is
resentencing). In Young v. Vaughn, we again applied the
reasoning of Tucker, holding that the petitioner could
challenge his prior conviction, held unconstitutional due to
ineffective assistance of counsel, if this conviction was used
to enhance his current sentence.15 Since in Young we were
addressing only our jurisdiction to hear the habeas
petition, we did not specifically consider what relief was
appropriate if the petition was successful.

We see no meaningful distinction between Tucker and its
_________________________________________________________________

15. Other courts have also recognized this type of collateral
consequences relief and have held, consistent with our decisions in Clark
and Young, that complete denial of right to counsel, as in Tucker, is not
the only constitutional violation justifying such relief. See, e.g., Brock
v.
Weston, 31 F.3d 887 (9th Cir. 1994) (prior conviction challenged based
on involuntary and uninformed plea); Tredway v. Farley, 35 F.3d 288
(7th Cir. 1994) (prior conviction challenged based on involuntary guilty
plea); Allen v. Collins, 924 F.2d 88 (5th Cir. 1991) (prior conviction
challenged based on ineffective assistance of counsel); Battle v. Thomas,
923 F.2d 165 (11th Cir. 1991) (prior conviction challenged based on
ineffective assistance of counsel); Gamble v. Parsons, 898 F.2d 117 (10th
Cir. 1990) (prior conviction challenged based on involuntary and
uninformed guilty pleas); Taylor v. Armontrout, 877 F.2d 726 (8th Cir.
1989) (prior conviction challenged based on involuntary guilty plea and
ineffective assistance of counsel on appeal).

                               21
progeny and the case at hand to cause the relief in this
case to be any different from that granted in Tucker. Both
unconstitutional convictions, although expired, provided
grounds for habeas relief because they resulted in the
petitioners' serving sentences enhanced thereby, and were,
thus, unconstitutional. Just as in Tucker, we cannot now
correct by retrial the unconstitutional incarceration
resulting from the previous conviction, as that sentence has
been served in its entirety. Instead, all that we can do is
provide the state court with the opportunity to void Coss'
current sentence of the ramifications, if any, resulting from
the prior unconstitutional conviction.

Conditioning the writ on resentencing is consistent with
the mandate in Barry v. Brower, 864 F.2d 294, 301 (3d Cir.
1988). In Barry, we warned that "[a] habeas court does not
have power to directly intervene in the process of the
tribunal which has incorrectly subjected the petitioner to
the custody of the respondent official. . . . The respect due
the tribunals of a sovereign state within our federal system,
however, requires that its courts be given an opportunity to
correct their own errors." In this case, we will give the
tribunal which incorrectly subjected him to custody--
namely, the sentencing court -- the opportunity to correct
its error by resentencing Coss, ridding his sentence of the
unconstitutional taint of his prior conviction.

We realize that the sentencing court must now assess the
extent to which the unconstitutional conviction impacted
the sentence it handed down and resentence without
including the prior offense in its thinking. While this may
leave an open issue as to Coss' guilt or innocence of the
assault, guilt or innocence is not our charge.16 See Herrera
v. Collins, 506 U.S. 390, 400 (1993) (stating that "federal
_________________________________________________________________

16. It might even be said that our determination here is more probative
of Coss' actual guilt or innocence of the assault charge than was the
determination in Tucker. Here, we determine not only that counsel was
ineffective, but, in determining prejudice, we held that there was a
reasonable probability that the outcome of Coss' trial would have been
different such that Coss may well have been found not guilty. No such
finding was required with the invalid conviction in Tucker, where we
know little as to his actual commission or guilt of the offense, but
prohibited its consideration because of its blatant unconstitutionality.

                               22
habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution -- not to correct
errors of fact"); Tucker, 404 U.S. at 447-48 ("We need not
speculate about whether the outcome of the respondent's
. . . prosecutions would necessarily have been different if he
had had the help of a lawyer."); S. Rep. No. 80-1526, at 2
(1948) ("[H]abeas corpus . . . is not a determination of guilt
or innocence of the charge upon which petitioner was
sentenced. Where a prisoner sustains his right to discharge
in habeas corpus, it is usually because some right .. . has
been denied which reflects no determination of his guilt or
innocence but affects solely the fairness of his earlier
criminal trial.").17 Habeas relief serves to rectify conditions
of unconstitutional confinement. Coss is no longer confined
for the previous assault conviction. Thus, we are to rid
Coss' current confinement of its constitutional defect --
which the reliance upon his previous conviction represents.
Doing any more than this oversteps the bounds of our task
on habeas review.18

Further, while re-trying Coss' assault would make
resentencing fully informed, we think this inappropriate
given our limited role in applying habeas relief, as a retrial
would have the untoward result of providing Coss with a
method of attacking, and altering, the outcome of his
assault trial in a way otherwise unavailable to him through
direct and collateral review absent this second conviction.19
_________________________________________________________________

17. In fact, the actual innocence inquiry most often comes into play in
habeas proceedings where a petitioner seeking relief on a potentially
meritorious constitutional claim faces an otherwise dispositive
procedural bar to review or relief. In these cases, the petitioner must
proffer a colorable claim of innocence to defeat the bar. See Herrera v.
Collins, 506 U.S. 390, 404 (1993).

18. We have explained previously that federal courts walk a fine line in
fashioning the appropriate relief on habeas review. See Henderson v.
Frank, 155 F.3d 159, 168 (3d Cir. 1998) (explaining that the condition
upon which the writ is issued must be fitted between two principles:
minimizing intervention into the state criminal process and ensuring the
cure of all constitutional defects).

19. Actually, Coss did present his ineffective assistance of counsel claim
in a collateral challenge to his 1986 convictionfiled pursuant to
Pennsylvania's Post Conviction Hearing Act. This petition, which served

                               23
It is one thing to enable a petitioner to attack the
constitutionality of a prior conviction insofar as it impacts
a later sentence; it is quite another to let him reach back
and undo that conviction after the opportunity for
challenging it on direct appeal and collateral proceedings
has come and gone. The concept of challenging previous
convictions as enhancers is a novel use of habeas; we
should not let it bring about untoward results. See Alan C.
Smith, Note, More Than a Question of Forum: The Use of
Unconstitutional Convictions to Enhance Sentences Following
Custis v. United States, 47 Stan. L. Rev. 1323, 1340 (1995)
(stating that "the language in Maleng indicates the Court's
reluctance to let defendants challenge prior convictions in
the federal habeas forum" and that the "reasoning in Custis
regarding the importance of finality and the difficulty of
administering attacks on prior convictions also reveal[s] a
desire to severely limit these claims").

Our view that resentencing on the more recent conviction
is warranted, rather than a new trial on his 1986 assault
charge, is also consistent with language in other case law
discussing this unique habeas posture. While Tucker
appears to be our sole guide as to the conditional relief
appropriate in these circumstances, the developing
jurisprudence focusing on these unique circumstances is
consistent in noting that we are not attacking the expired
conviction directly. Instead, the prior conviction may only
be attacked in the "context of " the current sentence. Young,
83 F.3d at 78 (specifying that a defendant may only attack
a prior conviction "in the context of a challenge to the
_________________________________________________________________

as justification for the District Court to excuse the exhaustion
requirement, has yet to be acted upon by the state courts. While Coss'
petition remains pending, in all likelihood the state courts would refuse
to entertain it at this late date. See, e.g., Ahlborn, 699 A.2d at 720
(stating that collateral relief is not available for a petitioner who is
not
currently serving a sentence of imprisonment for the conviction he
wishes to challenge, even if collateral consequences stem from that
conviction). Nonetheless, our resolution of Coss' habeas claim, and part
of our rationale for declining to find that a new trial would be the
appropriate relief here, stems from the fact that doing so would make
this type of challenge available even if Coss had not raised this issue in
connection with the review of his 1986 conviction.

                               24
enhanced sentence for which he is in custody"); Gamble,
898 F.2d at 118 (interpreting Maleng as precluding a
defendant from challenging an expired conviction "directly,"
but stating that a defendant may attack a prior
unconstitutional conviction in the context of its effect on a
present sentence); Taylor, 877 F.2d at 727 (same); see also
Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990)
("That a person happens to be in custody is of course not
a sufficient reason to rummage through old judgments in
search of ones that may be invalid. To obtain relief under
S 2254 the prisoner must show that his current
confinement violates the Constitution.").20 It is in the
context of his current sentence that Coss has attacked the
previous conviction, and it is in that context, and limited to
that context, that we will require habeas relief to be
afforded to him.

Accordingly, we order that a writ shall issue conditioned
upon Coss' being resentenced without consideration of the
previous assault conviction.

VIII. Conclusion

For the reasons stated above, we will reverse the District
Court's denial of Coss' habeas petition and remand to the
District Court with instructions that it order a writ of
habeas corpus to issue conditioned upon Coss' being
resentenced without consideration of the previous assault
conviction.
_________________________________________________________________

20. We do not read Brock v. Weston, which did not expressly limit the
condition of the writ on the petitioner's resentencing, but rather ordered
the district court "to resolve the petitioner's challenge to [the prior]
conviction," as inconsistent with our holding here. Instead, we interpret
Brock as an order to rid the petitioner's current sentence of any
ramifications from his prior unconstitutional conviction, not as an order
to retry the petitioner on the expired conviction.

                               25
ALDISERT, Circuit Judge, concurring in part and dissenting
in part.

Several important public policy and social welfare
considerations divide the panel in this case, the facts of
which, at first blush, seem very pedestrian, yet the grant of
habeas corpus relief presents an extremely important
question that goes to the heart of comity in the relationship
of federal courts and state sovereignties in habeas corpus
cases brought under 28 U.S.C. S 2254. In granting the writ,
the majority denies the Commonwealth of Pennsylvania the
option of correcting the constitutional infirmity of
incompetency of counsel by means of new trial. I disagree
with this result.

I adhere to the long line of cases in this court that
typically condition the grant of the writ under S 2254 on
allowing the state the option, where it is possible, to cure
the constitutional infirmity. My experience in this court's
tradition goes back 31 years when I wrote the court's
opinion in United States ex rel. Crosby v. Brierley, 404 F.2d
790 (3d Cir. 1968), a Pennsylvania murder case in which
we determined that the guilty plea was constitutionally
infirm.1

The precise issue that occupies our attention was not
raised by the parties, but rather was injected by the
majority without briefing or argument. Indeed, Coss did not
even request the relief he is now receiving. In his Second
Amended Habeas Corpus Petition, drafted by counsel, Coss
simply sought a new trial of his 1986 conviction. See Joint
App. at 19 P 4 ("The above stated issues are meritorious
and demonstrate that Coss was denied his due process
right to a fair sentencing hearing and his Sixth (6th)
Amendment right to effective assistance of counsel. Thus,
_________________________________________________________________

1. Therein we stated:

       Accordingly, we will vacate the order of the court below and remand
       the case with the direction that the district court issue a writ of
       habeas corpus without prejudice to the right of the Commonwealth
       of Pennsylvania to undertake appropriate action in the further
       prosecution of this matter.

404 F.2d at 802.

                                26
Coss is entitled to a new trial and sentencing hearing with
regard to his institutional vandalism, criminal mischief, and
simple assault convictions.").

I.

This melancholy chronicle of events started with a simple
assault and battery that took place on June 25, 1986, in
the small city of Dickson in Lackawanna County,
Pennsylvania, when the local police were called to a high
school graduation party at the home of Carol Ann Frank,
the sister of the then-17 year old Appellant, Edward Coss.
It seems that Carol Ann's roommate, one Lisa Frieto, got
into a hair pulling contest with another party goer, one
Sherry Kulick, and thereafter the revelers, all of whom were
juiced up, apparently picked sides and a grand donnybrook
was had by all until Carol Ann, the hostess, a real party-
pooper, threw everyone out of her house.

Undeterred by the great outdoors, the donnybrookers
continued their carousing outside until the landlord and
the neighbors called the police. When the cops arrived with
their usual greeting, "Break it up," there apparently was a
slight problem in attitude adjustment, and the cops say
that Coss threw a couple of punches at one of them, which
landed Coss in the local lockup. Totally dissatisfied with the
accommodations, Coss proceeded to voice his complaint by
destroying a radiator, a sink, a toilet and a lightfixture on
the ceiling in his cell. For this, he was convicted of simple
assault and institutional vandalism and sentenced to six
months to a year on each offense. Coss did his time and
was released to society on parole.

Seven or eight months after Coss was discharged from
Pennsylvania parole supervision on August 30, 1989, a
certain Peter Petrovich was beaten "by a group offive or six
men, including appellant,"2 and Coss was arrested and
convicted on one count of aggravated assault and battery
and one count of simple assault for his part in the group
effort to register displeasure on Petrovich's person. Coss
was sentenced to a term of six to twelve years
_________________________________________________________________

2. See Commonwealth v. Coss, 695 A.2d 831, 833 (Pa. Super. Ct. 1997).

                               27
imprisonment on the aggravated assault conviction and
there is no question that the sentencing judge took into
consideration his previous conviction of assault and
battery.

II.

The panel is in agreement that a Sixth Amendment
deprivation of competent counsel infected the trial for the
1986 offense. We have federal habeas corpus subject
matter jurisdiction to reach this conclusion under 28
U.S.C. S 2254, even though Coss is no longer "in custody"
for that offense--no longer imprisoned or on parole--
because of the teachings of Maleng v. Cook, 490 U.S. 488
(1989) (per curiam), Clark v. Commonwealth, 892 F.2d 1142
(3d Cir. 1989), and Young v. Vaughn, 83 F.3d 72 (3d Cir.
1996).

The majority's approach requires us to assess the rights
of society as against the rights of the criminal following a
determination that the criminal is in custody for a sentence
that has been tainted by a constitutionally infirm
conviction, for which the criminal is no longer in custody.
The normal relief that we grant in habeas corpus is to order
that the habeas petitioner be freed, subject to the right of
society to correct in a timely manner the constitutional
error through a new state proceeding. It cannot be
controverted that had Coss filed his habeas petition during
the period he was incarcerated or on parole from thefirst
conviction and we decided that he had been deprived of his
Sixth Amendment right to counsel, we would have accorded
Pennsylvania the option of releasing him or correcting the
infirmity by means of a new trial or other proceedings. See,
e.g., Henderson v. Frank, 155 F.3d 159 (3d Cir. 1998);
Barry v. Brower, 864 F.2d 294 (3d Cir. 1988).

Here, however, we cannot "free" Coss because he has
already, in the vernacular, "done the crime and done the
time." We are thus faced with the very nice question:
Should we give society, here, the Commonwealth of
Pennsylvania, the right to cure the Sixth Amendment
constitutional defect or should we give the Appellant a free
ride and have his second sentence declared invalid simply
because he is a recidivist?

                               28
I think that the state body politic should always have the
right to cure the constitutional defect of a conviction used
to enhance a sentence on a later conviction (1) if the federal
court has the jurisdiction to confer that option upon the
state and (2) if it is at all possible by means of new state
proceedings. The cases relied upon by the majority to
support its grant of extraordinary relief are exceptions to
this well-reasoned rule based on the inability of the federal
courts to direct new state court proceedings. The
circumstances present here fall squarely within our
traditional procedures. To follow the course set by the
majority, therefore, improperly infringes on state
sovereignty and on the notions of federalism, comity and
fairness that underlie the habeas corpus framework.

In Henderson, supra, we explained that "federal habeas
power is limited, first, to a determination of whether there
has been an improper detention by virtue of 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." 155 F.3d at 168.

It must be asked why, in light of our clear discussion
in Henderson, the majority seeks to deprive the
Commonwealth of the option of correcting the
constitutional violation by a new trial on simple assault.
The majority's primary answer is a reliance on United
States v. Tucker, 404 U.S. 443 (1972). Let's examine that
case.

A.

The teachings of Tucker do not constitute an appropriate
analogue to this case or any other federal habeas case
brought under S 2254. United States v. Tucker by caption
and by content was not a habeas corpus case brought
under S 2254 based on a state conviction; the defendant
there was seeking post conviction relief from a federal
conviction pursuant to 28 U.S.C. S 2255. This is a
distinction with a fundamental difference. The Court could
not possibly condition relief on affording any state the

                                29
opportunity to retry the defendant because no state officials
were parties to the law suit. No state warden, no custodian,
no state officers were respondents or defendants as in the
case of a S 2254 petition. In bringing his action, Tucker was
attacking a federal sentence imposed by the District Court
for the Northern District of California that had been
enhanced on the basis of invalid state court convictions
from Florida and Louisiana. Because the Court had no
state officers as petitioners or respondents before it, the
Court lacked power or authority to give the option to a state
court in Florida or Louisiana to retry the defendant. To
prevent the "erosion of the Gideon principle" that the right
to effective assistance of counsel is fundamental, the Court
had no alternative other than to order that the defendant
be resentenced on the federal conviction without reference
to the invalid state court convictions.3 In contrast, in every
habeas petition brought under S2254, an officer of the state
or a political subdivision thereof is always the respondent.

The teachings of Tucker reflect one exception to the
general rule of permitting the state to correct the
constitutional infirmity in a subsequent sentence
enhancement case--where the federal court lacks the
authority to afford the state the opportunity to correct the
constitutional infirmity because no state officer is a party to
the litigation. We now turn to another exception reflected in
the cases.

B.

This court has held, and properly so, that where it is
factually impossible for the constitutional infirmity to be
cured by additional state proceedings, the federal court in
_________________________________________________________________

3. The Court's discussion is specifically targeted to a S 2255 case:

       [T]he real question here is not whether the results of the Florida
and
       Louisiana proceedings might have been different if the respondent
       had counsel, but whether the sentence in the 1953 federal case
       might have been different if the sentencing judge had known that at
       least two of the respondent's previous convictions had been
       unconstitutionally obtained.

404 U.S. at 448 (emphasis added).

                               30
a S 2254 case may simply order resentencing on the
subsequent conviction without considering a previous
constitutionally infirm conviction. See Clark v.
Commonwealth, 892 F.2d 1142 (3d Cir. 1989). Clark was a
deprivation of due process case lodged against a prior
conviction that served to enhance the sentence for a
subsequent offense. The gravamen of the petitioner's
complaint was that in 1974, when Clark was 17 years of
age, he was denied a juvenile court hearing to determine
whether he should have been tried as a juvenile or as an
adult. At the time we heard this appeal in 1989, the
petitioner was 31 years old. Accordingly, we could not give
the Commonwealth the option of providing Clark a juvenile
court hearing. The only relief possible was to order a
resentencing on the subsequent conviction without
enhancement. Thus, Clark reflects at least a second
exception to the general rule permitting the state to exercise
the option of additional proceedings, to-wit, where it is
factually impossible for the state to cure the constitutional
defect.

III.

We must then determine what dictates of public policy or
social welfare, or what directive force of law--philosophy,
history or custom--exists to deny the Commonwealth of
Pennsylvania this same option merely because Coss
committed another crime and was incarcerated again. To be
sure, we have concentrated our federal habeas corpus
jurisprudence on the rights of the criminal, but this does
not mean that federal judges are at liberty to ignore or
totally disregard the rights of society. The great Cardozo
taught us:

       The final cause of law is the welfare of society. The rule
       that misses its aim cannot permanently justify its
       existence. "Ethical considerations can no more be
       excluded from the administration of justice which is
       the end and purpose of all civil laws than one can
       exclude the vital air from his room and live.". .. [W]hen
       [judges] are called upon to say how far existing rules
       are to be extended or restricted, they must let the

                               31
       welfare of society fix the path, its direction and its
       distance.4

Drawing the line between individual liberties and rights,
and society's rights reflected by government action for the
larger good, is still the perpetual question of constitutional
law and is the precise issue that faces this panel today.
Two thousand years before the Constitution was ratified,
the same problem bothered an ancient social order that
spoke through Heraclitus: "The major problem of human
society is to combine that degree of liberty without which
law is tyranny, with that degree of law without which
liberty becomes license."5

Were we simply deciding a case that involved one young
man who had difficulty in the past controlling his urge to
punch people and tear out fixtures in a jail cell, and were
we to be limited to the facts of this case where, more
probably than not, the District Attorney of Lackawanna
County likely will not be inclined to commit the resources
of his office to retry a simple assault and battery case that
occurred thirteen years ago, I do not think that this case
would be important at all.

But we must realize that the holding of this case will
have a profound effect that far transcends the mundane
facts before us here and the question of whether we have
jurisdiction to consider Coss' appeal in the first place; and
that is the whisper of Immanuel Kant behind the ear of
every appellate judge reminding us of his famed categorical
imperative: "Act as if the maxim of your action were to
become through your will a universal law of nature."6 Two
centuries later, an elaboration on the basic theme was
uttered: "Judges must decide all the issues in a case on the
basis of general principles that have legal relevance; the
principles must be ones the judges would be willing to
_________________________________________________________________

4. Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (1921)
(footnote omitted).

5. See Ruggero J. Aldisert, The Judicial Process: Text, Materials and
Cases 9 (2d ed. 1996).

6. I. Kant, Groundwork of the Metaphysics of Morals 89 (Paton trans.
1964) (1785).

                               32
apply to the other situations that they reach; and the
opinion justifying the decision should contain a full
statement of those principles."7 This is the concept that
undergirds the common law doctrine of precedent: The legal
rule announced in a reported case of an appellate court will
be applied in subsequent cases presenting the identical
facts or materially similar ones.

The majority's holding today is not designed to meet the
fugitive exigencies of the hour. Rather, this court is issuing
a reward to every recidivist criminal. If you come to federal
court during your actual first custody, you will not
automatically be set free; the state will be given an
opportunity to correct the constitutional infirmity, usually
by means of a new trial, some new proceeding or new
appeal. But if you wait to file a habeas challenge of the
previous conviction until after you commit another criminal
act and are sent to jail, the possibilities are so much more
palatable, for if you are successful, the body politic does
not have the right to correct the original infirmity;
automatically, you get the benefit of a resentencing on the
second case as if the constitutional infirmity was
metaphysically impossible for the state to correct. When
you wait until the second offense, Mr. Recidivist Criminal,
and the habeas court finds an infirmity in thatfirst
conviction, you can thumb your nose to society,"Heads I
win, tails you lose." Or in the lingo of the jailhouse lawyers,
"Pal, you're gonna get a free pass."

If we are to weigh the various claims, wants and
demands asserted on the one hand by the misdemeanant
or recidivist and on the other hand by society, the law
requires adjustments or compromises of conflicting
interests. To do this, we turn to some social interest,
frequently under the name of public policy, to determine
the limits of reasonable adjustment. We have been taught
that a primary social interest is in the general security, long
recognized in the maxim that the safety of the people is the
highest law. An equally primary social interest is in the life
_________________________________________________________________

7. K. Greenawalt, The Enduring Significance of Neutral Principles, 78
Colum. L. Rev. 982, 990 (1978), commenting on H. Wechsler, Toward
Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

                               33
and freedom of the individual. They are on a collision
course here, as Heraclitus explained a millennium or two
ago, but I feel that if we look at law functionally as an
attempt to satisfy, to reconcile, to harmonize,"to adjust
these overlapping and often conflicting claims and
demands,"8 the balance must be struck here in favor of the
Commonwealth, which should be given the opportunity to
correct the constitutional infirmity that we have found here.

It is for the foregoing reasons that I dissent in part and
would grant the writ of habeas corpus conditioned on the
right of the Commonwealth of Pennsylvania to correct the
constitutional infirmity by retrying Coss on the 1986
incident.

A True Copy:
Teste:

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

8. Roscoe Pound, A Survey of Social Interests, 57 Harv. L. Rev. 1, 39
(1943).
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