Vincent Fischetti v. Philip Johnson

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4026
VINCENT FISCHETTI,
Appellant
v.
PHILIP JOHNSON;
GERALD J. PAPPERT*
On Appeal from the
United States District Court
for the Western District of Pennsylvania
(Dist. Ct. No. 02-cv-00931)
District Judge:
Honorable Gary L. Lancaster
Argued March 24, 2004
Before: ROTH, AMBRO, and
CHERTOFF, Circuit Judges.
(Filed: September 22, 2004)
CHRISTINE H. NOONING (Argued)
P.O. Box 100087
Pittsburgh, PA 15233
Counsel for Appellant
STEPHEN A. ZAPPALA, JR.
District Attorney
MICHAEL W. STREILY
Deputy District Attorney
RONALD M. WABBY, JR. (Argued)
Assistant District Attorney
Office of the District Attorney
401 Allegheny County Courthouse
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
CHERTOFF, Circuit Judge.
Vincent Fischetti appeals a final
order of the District Court denying his
petition for habeas corpus. Fischetti
argues, inter alia, that he was denied his
Sixth Amendment right to counsel when
he was tried in state court without
representation by an attorney. Before
facing trial for the second time on burglary
charges, Fischetti declared to the state trial
judge that he wanted to fire his appointed
counsel—his third—and postpone
proceedings so that new counsel could be
named. The judge gave Fischetti the * Pursuant to Fed. R. App. P. 43(c)

-- 1 of 18 --

2
choice of continuing with his appointed
attorney, having the appointed attorney
assist as co-counsel, or representing
himself. When Fischetti refused all
options, the state trial court determined
that Fischetti was capable of representing
himself and had him proceed pro se.
Fischetti was convicted of thirty-eight
counts of burglary.
This case presents two principal
issues:
First, when a criminal defendant
unreasonably rejects appointed counsel
and also rejects the option of proceeding
pro se, is it proper for the trial court to
force that defendant to represent himself?
Second, if the correct course for the
trial court here would have been to compel
Fischetti to continue with his appointed
counsel, was the court’s actual decision to
compel the defendant to proceed without
counsel “contrary to . . . clearly established
federal law, as determined by the Supreme
Court of the United States” or an
“unreasonable application” of that law, so
that habeas relief under 28 U.S.C. §
2254(d)(1) is authorized?
We conclude that the state trial
court should not have compelled Fischetti
to represent himself. We also conclude,
however, that the trial court’s decision did
not violate clearly established federal law
as established by the Supreme Court and
did not unreasonably apply that law.
We are compelled to reverse the
District Court’s judgment in part on one
other ground, however. The state court’s
admission of prior testimony without a
preliminary determination that the
witnesses were unavailable for trial
infringed on Fischetti’s Sixth Amendment
right to confront witnesses. We will
remand the case to the District Court for
further proceedings on this ground alone.
I.
This appeal caps a long and
circuitous litigation that has spanned over
twenty years in Pennsylvania state court
and federal court. On May 6, 1981,
Fischetti was convicted by a jury in the
Court of Common Pleas, Allegheny
County, Pennsylvania, of one count of
resisting arrest and a total of forty-three
counts of burglary. He was subsequently
sentenced to twenty-two and one-half
years to two hundred and twenty years of
imprisonment. Over the next three years,
Fischetti filed a series of appeals and post-
conviction hearing petitions contesting his
1981 conviction in Pennsylvania state
court. Fischetti filed his first pro se
petition for habeas corpus in District Court
in 1984, which was dismissed the
following year.
On March 13, 1991, Fischetti filed
his second pro se motion for post
conviction collateral relief. Attorney
Ralph Karsh was appointed as Fischetti’s
second counsel. In November of 1992,
Karsh filed a petition to withdraw as
counsel, citing irreconcilable differences.
The trial court appointed Thomas
Fitzgerald to represent Fischetti in post-
conviction proceedings. A series of
hearings was held before the trial court,

-- 2 of 18 --

3
and on December 21, 1993, the trial court
granted the relief requested in the post-
conviction petition, dismissed three of the
burglary charges, and granted a new trial
on the remaining counts. The case was
assigned to the Honorable Raymond A.
Novak for trial. On June 12, 1994,
Fischetti filed a pro se petition to dismiss
his second court-appointed counsel,
Fitzgerald, and to have new counsel
appointed. On June 15, 1994, Fischetti
filed a pro se petition to Dismiss Pursuant
to Pennsylvania Rule of Criminal
Procedural 1100.
In the following months, the trial
court and Superior Court of Pennsylvania
reviewed the blizzard of motions filed by
Fischetti, which were each denied in turn.1
On November 18, 1994, Fischetti
appeared in trial court, refused to agree to
a trial date, and asserted that he did not
want Fitzgerald to serve as his counsel.
That day, Judge Novak sent a letter to
Fischetti rejecting Fischetti’s complaint
that Fitzgerald was not acting in his best
interest. On December 29, 1994, Judge
Novak denied Fischetti’s request for new
counsel and gave him three choices:
continue to have Fitzgerald represent him,
represent himself with Fitzgerald assisting
as co-counsel, or represent himself
without co-counsel. Fischetti refused the
first two options and claimed that he could
not represent himself. Judge Novak
determined that Fischetti was capable of
representing himself and set the trial date
for April 3, 1995. Meanwhile, in the
midst of these proceedings, Fischetti filed
a pro se Petition for Writ of Habeas
Corpus in United States District Court on
December 20, 1994. On March 14, 1995,
the District Court dismissed his petition
and denied a certificate of probable cause.
On May 1, 1995, a jury trial began
before Judge Novak. Throughout the
proceedings, Fischetti sat mute in protest
of the court order that he proceed pro se.
On May 5, 1995, he was found guilty of
thirty-eight counts of burglary. He
received a sentence on two of the counts
totaling twenty to forty years of
imprisonment.2
1 On August 30, 1994, the trial
court denied Fischetti’s May 5, 1994
Motion to Dismiss for Double Jeopardy.
The following month, Fischetti filed a
Notice of Appeal contesting that order,
both pro se and through counsel, in
Superior Court. On November 10, 1994,
the Superior Court deemed the appeals
frivolous. Two months earlier, on
September 19, 1994, the Superior Court
also denied Fischetti’s September 2, 1994
pro se motion for Emergency Order of
Court Dismissing Appellant from Custody
of Allegheny County Court under Rule
1100 or in the Alternative Immediately
Order Allegheny County to Hold
Evidentiary hearing. Fischetti also filed a
pro se Writ of Mandamus with the
Supreme Court on September 27, 1994.
The Supreme Court denied the petition on
December 12, 1994.
2 Sentence was evidently not
imposed on the other counts.

-- 3 of 18 --

4
Fischetti filed a series of appeals
contesting his conviction, some pro se and
some through his former counsel
Fitzgerald3, as well another appointed
counsel, Helen Lynch. On December 30,
1997, the Superior Court affirmed the
judgment of the trial court. The Supreme
Court of Pennsylvania denied Fischetti’s
petition for Allowance of Appeal on June
28, 1998. On February 1, 1999, Fischetti
filed a pro se Motion for Post Conviction
Collateral Relief. In the following
months, three more new attorneys were
appointed for Fischetti; his first and
second court-appointed appellate attorneys
withdrew. On June 21, 2000, the trial
court entered an order dismissing
Fischetti’s petition. Fischetti timely filed
a notice of appeal with the Superior Court,
which affirmed the judgment of the trial
court on June 21, 2001. On March 20,
2002, the Pennsylvania Supreme Court
denied Fischetti’s petition for appeal.
On May 22, 2002, Fischetti filed,
through counsel, his habeas petition in the
District Court. On September 30, 2002,
the District Court issued an order adopting
t h e M a g i s t r a t e ’ s R e p o r t a n d
Recommendation to dismiss Fischetti’s
petition and to deny a certificate of
appealability. This appeal followed. We
granted a certificate of appeal on the
following questions: (1) “whether
appellant was denied his Sixth
Amendment right to counsel when the
second trial court required appellant to
represent himself at trial” and (2) “whether
the remaining three claims . . . should
properly be considered defaulted, as
procedural mistakes during the second
trial, when appellant acted as his own
counsel, appear to be the basis of the
procedural default for all three remaining
claims.”
II.
A.
The thrust of this appeal is
Fischetti’s claim that he was denied his
Sixth Amendment right to counsel at trial
when he was not granted new appointed
counsel and was left to represent himself.
Although we hold that error was
committed, it was not error of a magnitude
to warrant vacating the conviction on our
habeas review.
Fischetti placed the trial court in an
untenable position when, on the eve of
trial, he refused to continue with his then-
current counsel in any capacity and also
refused to represent himself. This action
was part of a pattern of uncooperative
conduct through which Fischetti
repeatedly complained about counsel and
sought to delay or derail his second trial.
The trial court investigated Fischetti’s
complaints about his appointed counsel
and determined them to be unfounded.4
Fischetti nevertheless ex pressed
3 Fitzgerald was re-appointed as
counsel on June 29, 1996.
4 Indeed, the state judge specifically
concluded that his counsel Fitzgerald was
well prepared and a “well-trained, skilled
defense attorney.” (App. 32).

-- 4 of 18 --

5
unwillingness to have his competent and
diligent third appointed counsel continue
in any capacity and sought to postpone the
aging case once again. Worse, he offered
the judge no assurance that a fourth
appointment of counsel would finally
satisfy him.
The trial judge refused to appoint
new counsel. This was understandable.
A defendant’s right to counsel is
not without limit and cannot be the
justification for inordinate delay or
manipulation of the appointment system.
United States v. McFadden, 630 F.2d 963,
972 (3d Cir. 1980). There is ample
precedent for the proposition that the need
for an orderly and expeditious trial may
require that a defendant proceed with
counsel not of his preference. See, e.g.,
Wheat v. United States, 486 U.S. 153, 164
(1988); Morris v. Slappy, 461 U.S. 1, 12
(1983); Fuller v. Diesslin, 868 F.2d 604,
607 (1989). Faced with this situation,
therefore, we have previously held that if
the court has “made the appropriate
inquiries and has determined that a
continuance for substitution of counsel is
not warranted, the court can then properly
insist that the defendant choose between
representation by his existing counsel and
proceeding pro se.” United States v.
Welty, 674 F.2d 185, 188 (3d Cir. 1982).
For these reasons, the trial judge properly
rejected Fischetti’s demand for another
appointment of counsel.
The problem lies with what
happened next. Fischetti refused to
choose either to proceed with current
counsel or to proceed alone. Had the
judge at that point instructed Fischetti to
proceed with current counsel, that decision
would be wholly supportable under
Morris. See also Wheat, 486 U.S. at 164.
But, instead, the trial judge reacted to
Fischetti’s resistance by ordering him to
trial pro se.
Was Fischetti’s response a truly
voluntary waiver of counsel? The law in
this Circuit indicates that it was not. In
United States v. Welty, a defendant was
denied new counsel and affirmatively
chose to represent himself. 674 F.2d at
187. We reversed the conviction because
the defendant was not adequately apprised
of the consequences of self-representation,
and thus his waiver of the right to counsel
was not valid. Id. at 194. If it is improper
to have a defendant proceed alone when
there is a flawed waiver, it follows that it
is improper to have him do so when he has
not voluntarily waived at all.
The threshold question in
determining whether a defendant can
proceed pro se is whether he wants to do
so. Only after he has “clearly and
unambiguously” asserted the right to self-
representation does the court move to the
next question—whether the choice is
“‘intelligent and competent.’” United
States v. Stubbs, 281 F.3d 109, 118 (3d
Cir. 2002) (quoting Buhl v. Cooksey, 233
F.3d 783, 799 (3d Cir. 2000)). For this
reason, the State’s vigorous contention
that the trial judge reasonably determined
that Fischetti’s “waiver” was knowing is
beside the point. In this case, the trial
judge’s ruling facially acknowledges that

-- 5 of 18 --

6
Fischetti rej e c t e d — ra t h e r th a n
asserted—the desire to represent himself.
Thus, there was no voluntary waiver in the
first place.
Was there another basis, then, to
deny Fischetti counsel? To be sure, there
are occasions when a defendant can be
forced to go to trial without an
attorney—when a defendant has forfeited
his right to counsel or impliedly “waived
it by conduct.” In United States v.
Goldberg, 67 F.3d 1092 (3d Cir. 1995),
we explained that a defendant could lose
the right to counsel by physically
assaulting his attorney or (in the case of a
financially able defendant) refusing to
retain any counsel in the first place. We
apply this rule of forfeiture not to punish
defendants but to preserve the ability of
courts to conduct trials. Similarly, under
Goldberg, even less serious dilatory
behavior, if preceded by an explicit
warning, can be treated as an implied
waiver of counsel by misconduct. Id. at
1100. Both forfeiture and implied waiver
are conceptually distinct from actual
waiver. Id. at 1099-1101.
The circumstances here, however,
did not meet the standards necessary to
establish that Fischetti actually forfeited
the right to an attorney or waived his
attorney by misconduct. There is no
evidence that Fischetti assaulted his
current attorney, or made it impossible for
any counsel to appear, or even that the
attorney wished to be relieved. Since
there was an attorney in place, there was
no cost to the trial court in simply ordering
that he continue. Accordingly, there was
no necessity to mandate that Fischetti
forfeit his attorney. By the same token,
there is no record that the trial court
formally warned Fischetti that his refusal
to proceed with his appointed counsel
would result in losing counsel altogether.
Moreover, Fischetti’s failure to choose
between counsel and pro se representation
does not seem to be “conduct” of the sort
that impliedly waived his attorney. To the
contrary, this “conduct” was literally
ambivalent between the two choices.
Thus, implied waiver is simply inapposite.
Where, as here, there was no harm
or delay to the judicial process in having
Fischetti’s court-appointed counsel
continue representation, forfeiture was not
appropriate under our precedent. And
where the defendant chooses neither
attorney representation nor self-
representation, the default position for the
court should be to mandate attorney
representation. After all, while there are
competing fundamental rights to counsel
and to self-representation, “it is
representation by counsel that is the
standard, not the exception.” Martinez v.
Court of Appeal, 528 U.S. 152, 161
(2000).
We emphasize that our ruling does
not mean that a trial judge is powerless in
the face of a difficult defendant who wants
neither to proceed with current counsel
nor to continue on his own. If the
appointment of new counsel is not
warranted, it can be denied. If a defendant
refuses to proceed with counsel and also
refuses to proceed pro se, the proper
course is to move forward with existing

-- 6 of 18 --

7
counsel. This approach preserves the right
to counsel—which is the presumptive
default position—while allowing the court
to manage the case.
B.
If this case were a direct appeal, the
preceding reasoning would necessitate a
reversal, for an erroneous denial of
counsel cannot be harmless. Stubbs, 281
F.3d at 121.
But this case arises under 28 U.S.C.
§ 2254, and we do not review for simple
error. The distinction in standard of
review makes all the difference.
Under provisions of the
Antiterrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254(d)(1),
the writ may issue after a state conviction
only if the state court decision being
challenged “was [1] contrary to, or [2]
involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States.” In Williams v. Taylor, 529
U.S. 362 (2000), the Supreme Court
amplified on these two bases for
invalidating a state conviction on habeas
review.
First, “contrary to . . . clearly
established federal law” means just
that—“‘diametrically different,’‘opposite
in character or nature,’ or ‘mutually
opposed.’” Id. at 405 (quoting Webster's
Third New International Dictionary 495
(1976)). Moreover, the state court
judgment must not merely be contrary to
law as articulated by any federal court. It
must contradict “clearly established”
decisions of the United States Supreme
Court alone. Id. This can happen in one
of two ways. Either the state court ignores
or misapprehends clear precedent or it
“confronts a set of facts that are materially
indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives
at a result different from [Supreme Court]
precedent.” Id. at 406. In this regard, the
Supreme Court has explicitly held that the
“state court need not even be aware of our
precedents, ‘so long as neither the
reasoning nor the result of the state-court
decision contradicts them.’” Mitchell v.
Esparza, 124 S. Ct. 7, 10 (2003) (per
curiam) (quoting Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam)).
Second, an unreasonable
application of Supreme Court precedent
occurs when a state court applies the
correct rule to specific facts in an
objectively unreasonable way. Williams,
529 U.S. at 409; see also Mitchell, 124 S.
Ct. at 11. A court that unreasonably
extends a rule in a new context or, in the
alternative, unreasonably fails to extend a
rule may also be deemed to unreasonably
apply the correct rule. Williams, 529 U.S.
at 407. The Supreme Court has not fully
fleshed out this “extension of legal
principle” approach to § 2254(d)(1).
Williams, 529 U.S. at 408-09; compare
Rompilla v. Horn, 355 F.3d 233, 240 (3d
Cir. 2004) (unreasonable application
includes unreasonable failure to extend)
with Marshall v. Hendricks, 307 F.3d 36,
51 & n.2 (3d Cir. 2002) (noting the
Supreme Court has not definitively

-- 7 of 18 --

8
adopted unreasonable extension theory).
Our approach under AEDPA,
therefore, requires us to determine what
the clearly established Supreme Court
decisional law was at the time petitioner’s
conviction became final. See Marshall,
307 F.3d at 62; Moore v. Morton, 255
F.3d 95, 104-05 & n.8 (3d Cir. 2001). We
must then analyze the challenged state
decision in light of that decisional law
under each of the two prongs of the
AEDPA test. Two aspects of this analytic
process bear special mention as the relate
to this case.
The first aspect is this: When we
look to Supreme Court precedent as a
touchstone, we must decide the level of
specificity at which we decide whether the
state decision is contrary to, or
unreasonably applies, that precedent.
Obviously, if one examines Supreme
Court decisions at a broad level of
generality, the universe of state decisions
that may be contrary to those decisions
will expand. For example, it could be said
that Faretta v. California broadly
established a right to self-representation
upon a proper waiver of counsel, and that
any subsequent state court decision
erroneously upholding a flawed waiver
would be contrary to, or an unreasonable
application of, Faretta. 422 U.S. 806
(1975). This would plainly prove too
much. See, e.g., Nelson v. Alabama, 292
F.3d 1291, 1295-96 (11th Cir. 2002)
(holding that relying on implicit Faretta
findings to allow pro se representation was
not contrary to or an unreasonable
application of Faretta). Instead, Supreme
Court jurisprudence addressing §
2254(d)(1) has established that
determining the “clearly established”
benchmark should be done on a case-
specific level.
That requirement of particularity is
evident from the ruling in Williams itself.
In discussing the “contrary to” decisional
law prong of the statute, the majority held
a state decision is contrary to a Supreme
Court precedent only if it contradicts the
precedent or “if the state court confronts a
set of facts that are materially
indistinguishable from a decision of this
Court and nevertheless arrives at a result
different from our precedent.” Williams,
529 U.S. at 406. This language
establishes that under AEDPA the Court
views its precedents in their particular
factual settings. The touchstone
precedents are not to be examined by
looking to broad pronouncements or
generative principles in the opinion. The
“materially indistinguishable” test
presupposes a fact-specific analysis of the
Supreme Court case law. See Moore, 255
F.3d at 107; Jermyn v. Horn, 266 F.3d
257, 281 (3d Cir. 2001)(same).
The “unreasonable application”
prong also takes as its point of departure
“clearly established” Supreme Court
precedent. Not surprisingly, therefore, in
analyzing habeas claims for unreasonable
application of the law, the Supreme Court
has looked at its own baseline precedents
through a sharply focused lens. In Price v.
Vincent, for example, the Court reviewed
a decision of the Sixth Circuit granting the
writ to a defendant who alleged a violation

-- 8 of 18 --

9
of the Double Jeopardy Clause. 538 U.S.
634 (2003). The defendant had been
granted a motion for directed verdict
during trial, which was entered on the
docket; two days later, the judge reversed
the ruling and allowed the charge to go to
the jury. Id. at 637. The Court of Appeals
granted habeas relief on the ground that
the state ruling clearly violated the
Supreme Court’s decision in United States
v. Martin Linen Supply Co., 430 U.S. 564,
571 (1977), which held that double
jeopardy attaches when the trial judge
makes a ruling that “actually represents a
resolution, correct or not, of some or all of
the factual elements of the offense
charged.” The Supreme Court reversed,
noting that even if the state court was
wrong, it had distinguished Martin Linen
based on reasonable factual differences.
538 U.S. at 642-43.
Indeed, in emphasizing that
Supreme Court precedents must be viewed
with particularity, we note that in other
contexts the Court has held that
application of a “clearly established” legal
rule is examined narrowly. For example,
in the retroactivity context, a decision is
viewed as the application of an established
“old rule” only if “dictated by precedent
existing at the time the defendant’s
conviction became final.” Teague v.
Lane, 489 U.S. 288, 301 (1989)
(plurality); see also Beard v. Banks, 124 S.
Ct. 2504, 2509 (2004) (precedent must
“compel,” not merely “support[]” the
decision to fall within old rule). And the
application of a rule is dictated by
precedent only if it applies “a well-
established constitutional principle to
govern a case which is closely analogous
to those which have been previously
considered in the prior case law.” Penry v.
Lynaugh, 492 U.S. 302, 314 (1989)
(quoting Mackey v. United States, 401
U.S. 667, 695 (1971) (Harlan, J.,
concurring in part and dissenting in part)).
T h i s l a n g u a g e — “ c l o s e l y
analogous”—underscores the specificity
that we must employ in reviewing whether
a state court has unreasonably applied
Supreme Court precedent. See Moore,
255 F.3d at 104-05 (equating the
definition of “old rule” under Teague with
the definition of “clearly established” law
under AEDPA).
We also emphasize a second aspect
to our analysis under AEDPA. In
determining whether a state decision is an
unreasonable application of Supreme
Court precedent, this court has taken the
view that “decisions of federal courts
below the level of the United States
Supreme Court may be helpful to us in
ascertaining the reasonableness of state
courts’ application of clearly established
United States Supreme Court precedent.”
Marshall, 307 F.3d at 71 n.24; see also
Moore, 255 F.3d at 104 n.8. The
Supreme Court itself appears to adopt this
approach, since it has pointed to decisions
of federal and state appeals courts as
evidence that an interpretation of Supreme
Court precedent was not objectively
unreasonable. See Price, 538 U.S. at 643
& n.2. However, we emphasize that cases
not decided by the Supreme Court do not
serve as the legal benchmark against

-- 9 of 18 --

10
which to compare the state decision. At
the end of the day, AEDPA “confine[s]
the authorities on which federal courts
may rely” in a habeas case to Supreme
Court decisions. Lewis v. Johnson, 359
F.3d 646, 652 (3d Cir. 2004); see also
Dunn v. Colleran, 247 F.3d 450, 457 (3d
Cir. 2001); Hameen v. Delaware, 212 F.3d
226, 234-43 (3d Cir. 2000) (analyzing
Supreme Court cases).
C.
With these general principles in
mind, we review the decision of the state
court that ordered Fischetti to proceed on
his own behalf when he declined both to
proceed with his current counsel and to
represent himself. The question here is
not whether the state court order was
simple error, but whether it was error that
contradicted or unreasonably applied
Supreme Court precedent.
At the outset, we must articulate the
issue presented to the state court precisely.
This was not a circumstance in which
Fischetti was simply forced to go to trial
without counsel or where he received an
inadequate waiver hearing under Faretta.
Here, Fischetti refused to make a choice
between proceeding with current counsel
and proceeding pro se. Effectively, he
sought to defy the trial court’s denial of
his motion for yet another new counsel. In
essence, the state court treated him not as
if he had waived the right to his attorney
but as having forfeited that right. See
Goldberg, 67 F.3d at 1101-02. We must
therefore examine whether there is
“clearly established” Supreme Court law
on forfeiture of the right to counsel.
The Supreme Court has on
numerous occasions made clear that the
right to counsel can only be waived
voluntarily and knowingly. McKaskle v.
Wiggins, 465 U.S. 168, 173 (1984);
Faretta, 422 U.S. 806, 835 (1975); Adams
v. United States ex rel. McCann, 317 U.S.
269, 279 (1942). But the Court’s
established precedent in this area has not
expressly dealt with the matter of
forfeiture of counsel, which is the exact
issue here. As we have discussed,
forfeiture and voluntary waiver are
conceptually separate. Moreover, the
Supreme Court’s prior decisions have not
involved facts that are “materially
indistinguishable” from the facts
surrounding Fischetti’s actions in this
case. See Williams, 529 U.S. at 406;
Moore, 255 F.3d at 107. It follows that
the state court ruling here was not contrary
to federal law as articulated by decisions
of the Supreme Court.
To be sure, the analysis undertaken
by the state court, and by the reviewing
state appellate court, did not discuss these
Supreme Court precedents. That
omission, as we have seen, is not
dispositive. See Mitchell, 124 S. Ct. at 10.
What is important is that the state courts
certainly did not contradict or take a
position that was explicitly inconsistent
with any prevailing United States Supreme
Court decisions.
Whether the state court
unreasonably applied the Court’s
precedent presents a closer question,

-- 10 of 18 --

11
however. Undoubtedly, the Supreme
Court has made clear that the right to
counsel at trial is fundamental and cannot
be actually waived except voluntarily and
knowingly. As the Court has observed,
there is a “strong presumption” against the
waiver of the right to counsel. Patterson
v. Illinois, 487 U.S. 285, 307 (1988).
And, as we have pointed out above, the
assistance of counsel, not self-
representation, is the presumptive
position. See Martinez, 528 U.S. at 161.
Thus, if our role on habeas review were to
determine if the state judge properly
extrapolated the general principles that can
be derived from Faretta, Patterson, and
Martinez to this different factual setting,
we might disagree with the state court
ruling.
That is not our role. In reviewing
the reasonableness of the state courts’
application of Supreme Court precedent,
we must use as our point of departure the
specific holdings of the Court’s decisions.
When assessing whether the state court
acted reasonably in applying or refusing to
apply that precedent, we must be mindful
that the issue is whether Supreme Court
law “dictated” a result in our case, Teague,
489 U.S. at 301 (plurality); see Moore,
255 F.3d at 104-05, or whether the
circumstances presented here were
“closely analogous” to those that formed
the basis of earlier high court decisions,
Penry, 492 U.S. at 314 (internal quotations
and citations omitted).
As we have observed, no Supreme
Court case has dealt specifically with the
case of a defendant who is unwilling to
proceed either with or without counsel
because he has been denied the particular
counsel of his choice. Accordingly, none
of the precedential decisions provides a
template that fits the facts here. Nor has
the Supreme Court expressly ruled out
forfeiture of counsel. Indeed, the Supreme
Court has recognized that the parallel
rights to counsel and to self-representation
cannot be manipulated to frustrate the
orderly processes of the trial court. In
Faretta, for example, the Court warned
that the “right of self-representation is not
a license to abuse the dignity of the
courtroom.” 422 U.S. at 834 n.46; accord
McKaskle, 465 U.S. at 184.
More importantly, the Supreme
Court has made clear that Sixth
Amendment rights generally are not
amenable to forfeiture. Through
misconduct, defendants can outright
forfeit trial rights as fundamental as the
Sixth Amendment right to counsel. The
Confrontation Clause of the Sixth
Amendment for example, guarantees that
a defendant can be present in the
courtroom throughout a criminal trial.
The Supreme Court held in Illinois v.
Allen, 397 U.S. 337. 343 (1970), however,
that a defendant can lose that right if he is
disruptive in court after being warned by
the judge. Indeed, the court upheld
exclusion notwithstanding the availability
of alternative coercive measures that
might have served to discipline the
misbehaving defendant. Id. at 344-46.
Likewise, in Taylor v. United States, 414
U.S. 17 (1973) (per curiam), the Court
affirmed a decision to proceed with a trial

-- 11 of 18 --

12
after a defendant failed to return after a
recess. The Court rejected the argument
that the absence could not be construed as
a knowing waiver in the absence of an
explicit warning that the trial would
continue if he absconded. It held the trial
could continue because the court’s power
to try a case “‘may not be defeated by
conduct of the accused that prevents the
trial from going forward.’” Id. at 20
(quoting Allen, 397 U.S. at 349 (Brennan,
J., concurring)).
These decisions certainly provide a
basis to conclude, as the state judge did in
this case, that defiant behavior by a
defendant can properly cost that defendant
some of his Sixth Amendment protections
if necessary to permit a trial to go forward
in an orderly fashion. This precedent,
therefore, cuts against a finding that the
trial judge unreasonably applied Supreme
Court case law in responding to Fischetti’s
obduracy by mandating that he proceed
without counsel. Additional support for
the reasonableness of the state court’s
application of Supreme Court precedent is
found in rulings of other courts, including
our own, that uphold at least limited
forfeitures of right to counsel. See Price,
538 U.S. at 642-43 & n.2 (relying on other
decisions as indications of reasonable
interpretation); Moore, 255 F.3d at 104-05
n.8 (same).
As we have already discussed, we
confronted forfeiture and waiver by
conduct in Goldberg. While we found in
that case an insufficient factual predicate
to apply either doctrine, we did read the
applicable Supreme Court cases as
allowing forfeiture and waiver by conduct
of counsel. We cited Illinois v. Allen as
approving the decision to “deprive a
defendant of a fundamental constitutional
right at least where the defendant is aware
of the consequences of his actions, but
regardless of whether the defendant
affirmatively wishes to part with that
right.” Goldberg, 67 F.3d at 1101. We
revisited the forfeiture issue in United
States v. Leggett, 162 F.3d 237 (3d Cir.
1998).5 There, a defendant physically
attacked his trial counsel at sentencing.
After release from the hospital, counsel
understandably sought to withdraw. The
district court granted the application and
“concluded that Leggett had forfeited his
right to counsel for the sentencing
hearing.” Id. at 240. We affirmed. See
also United States v. Jennings, 855 F.
Supp. 1427 (M.D. Pa. 1994) (assault on
appointed attorney waives counsel “by
implication”), aff’d, 61 F.3d 897 (3d Cir.
5 Leggett was decided four years
after the state judge in our case ruled that
Fischetti must proceed pro se. That fact
does not make a difference. As we have
discussed, we look to non-Supreme Court
cases not because the state court was
obliged to rely on them, but as evidence of
what courts would view as reasonable
interpretations of Supreme Court law. See
Lockhart v. Fretwell, 506 U.S. 364, 372-
73 (1993) (holding that the Teague rules
limiting retroactive interpretation of the
law do not apply to changes in the law that
would uphold, rather than reverse, a
conviction).

-- 12 of 18 --

13
1995) (table).
Other circuits have also interpreted
Supreme Court decisions to be consistent
with forfeiture of the right to counsel.
These cases have interpreted the law to
require defendants to go to trial
unrepresented when they have failed to
hire counsel within a reasonable time,
United States v. Bauer, 956 F.2d 693 (7th
Cir. 1992); United States v. Mitchell, 777
F.2d 248 (5th Cir. 1985), or have abused
counsel, United States v. McLeod, 53 F.3d
322 (11th Cir. 1995).
None of these cases approves the
specific decision made by the trial judge
here. But the appellate cases do establish
that the Supreme Court’s general right to
counsel decisions are reasonably read as
qualified by the trial court’s power to
remedy abuse of that right through
forfeiture. Further, none of these cited
appellate cases saw in the Supreme
Court’s precedents any clear guidance as
to the precise standard to be applied
before forfeiture can be triggered. Put
another way, the Supreme Court has not
fully defined when a defendant’s
misconduct or defiance warrants a
forfeiture. Our canvass of decisions of
our own and sister courts reinforces our
view that the state court order that
Fischetti proceed without counsel was not
an objectively unreasonable application of
Supreme Court case law under the Sixth
Amendment. Williams, 529 U.S. at 409-
10, 412.
The Second Circuit has reached a
similar result. In Gilchrist v. O’Keefe,
260 F.3d 87 (2d Cir. 2001), the Court
entertained a § 2254 petition brought by a
defendant whose counsel was discharged
before sentencing after defendant punched
counsel in the ear. Although the Court of
Appeals indicated that a forfeiture based
on one incident might be constitutionally
unwarranted, id. at 89, it held that the state
courts’ decision upholding the forfeiture
was neither contrary to Supreme Court
cases nor an unreasonable application of
those cases. Gilchrist concluded that the
Supreme Court’s “recognition that other
important constitutional rights may be
forfeited based on serious misconduct”
counsels against a finding that the state
court was unreasonable in concluding that
the defendant had forfeited his right to
counsel by his single act of violence. Id.
at 97. We apply the same logic in
reaching the result here.
The state court’s mandate that
Fischetti proceed pro se was error, but was
not contrary to, or an unreasonable
application of, Supreme Court precedent.
III.
Fischetti raises three other claims.
He first claims that his Sixth Amendment
right to effective assistance of counsel was
violated when his counsel at the first trial
failed to argue that probable cause did not
exist with regard to his arrest for burglary,
theft, and receipt of stolen property. In the
alternative, he contends that appellate
counsel was ineffective in not contesting
the second trial court’s failure to hold a
hearing on this issue. Second, he claims
that his Sixth Amendment right to

-- 13 of 18 --

14
effective counsel was violated when
appellate counsel did not appeal the failure
of the court at the second trial to provide
him with certain court records and
transcripts from the first trial. Finally,
Fischetti maintains that his Sixth
Amendment right to confront witnesses
and right to effective assistance of counsel
were denied because the trial court failed
to conduct a preliminary hearing on the
unavailability of certain witnesses before
their prior testimony was read into
evidence at his second trial (and appellate
counsel did not appeal that failure).
The District Court rejected these
claims when adjudicating the original
habeas petition. The District Court found
that each of these contentions was
procedurally barred on independent state
law grounds because they were not
properly presented to the state courts.
Claims barred on state procedural grounds
cannot be reviewed on habeas unless the
“prisoner can demonstrate cause for the
default and actual prejudice as a result of
the alleged violation of federal law, or
demonstrate that failure to consider the
claim will result in a fundamental
miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
Cause must be “some objective factor
external to the defense.” Murray v.
Carrier, 477 U.S. 478, 488 (1986).
These claims were presented to the
Pennsylvania Superior Court on collateral
review and rejected as procedurally barred
because they were not raised on direct
appeal. Presumably anticipating this
result, Fischetti also argued before the
Superior Court (and throughout the
subsequent state proceedings) that any
default on his direct appeal was the
consequence of ineffective assistance or
the outright denial of counsel at the trial.6
The Superior Court rejected this excuse,
determining that the default ultimately
stemmed from Fischetti’s failure to raise
any of these issues at the second trial.
Specifically, the Court found that
Fischetti, acting pro se, did not request a
suppression hearing regarding the arrest;
did not perfect a request for court records;
and did not request a preliminary hearing
regarding admissibility of testimony from
the first trial. We note that the federal
law, as well as Pennsylvania law, does not
allow pro se litigants to avoid their own
waivers on the ground that they were
ineffective as “counsel.” Faretta, 422 U.S.
at 834 n.46; Commonwealth v. Griffin,
644 A.2d 1167, 1171 (Pa. 1994).
Fischetti argues on this appeal that
the District Court was incorrect to rely on
these omissions at trial as procedural
waivers because he unwillingly proceeded
pro se. Put differently, he urged in state
court and urges here that the trial court’s
erroneous decision to force him to
represent himself provides “cause” to
overlook the default of all claims he did
not raise pro se at trial.7
6 Thus, the ineffective assistance
claims themselves were exhausted. See
Murray, 477 U.S. at 489.
7 This was the second question on
which we granted a certificate of

-- 14 of 18 --

15
Attorney error that rises to the level
of ineffective assistance under the Sixth
Amendment establishes external “cause”
to overcome a procedural default. Murray,
477 U.S. at 488; see also Werts v.
Vaughn, 228 F.3d 178, 193 (2000). Of
course, a defendant who proceeds pro se
voluntarily cannot assert a claim of
ineffective assistance of counsel. But
here, the defendant was erroneously
ordered to proceed without counsel. If
ineffective assistance of counsel is
sufficient to excuse a default, wrongful
outright denial of counsel must, a fortiori,
also be sufficient. Indeed, the Supreme
Court observed that a total denial of
counsel works greater unfairness than
mere ineffectiveness of counsel. Penson
v. Ohio, 488 U.S. 75, 88 (1988).
Logically, therefore, a waiver caused by
an improper outright denial of the Sixth
Amendment right to counsel constitutes
“cause.”
The Supreme Court decision in
Coleman v. Thompson itself is instructive
in this regard. The Court held there that
ineffective assistance of counsel on appeal
from a denial of state habeas review was
not cause for a procedural default because
there was no Sixth Amendment right to
counsel for state habeas. 501 U.S. at 755-
56. The majority distinguished that fact
pattern from one in which the denial of
assistance of counsel occurred at a stage of
proceedings during which the Sixth
Amendment does apply—that is, at trial or
on direct appeal. Id. at 754. In the latter
case, because the ineffective assistance of
counsel (and a fortiori the outright denial
of counsel) violates the State’s
constitutional obligation, the State “must
bear the cost of any resulting default and
the harm to state interests that federal
habeas review entails.” Id.
Accordingly, we hold that the
constitutionally erroneous denial of
counsel to Fischetti constitutes cause
sufficient to excuse his procedural default
of the claims he raises here. Our ruling is
consistent with decisions of other circuits.
Shayesteh v. City of S. Salt Lake, 217
F.3d 1281, 1283 (10th Cir. 2000);
Restrepo v. Kelly, 178 F.3d 634, 640-41
(2d Cir. 1999).
We pause to address an obvious
question: How can the denial of counsel
suffice to establish cause to overcome a
procedural default when we have already
ruled that it is not sufficient as a stand-
alone claim to warrant reversal of the
underlying convictions? The answer lies in
the differing standard for evaluating
constitutional error as a substantive basis
of relief and as a cause to avoid default of
other claims. As we have discussed,
AEDPA authorizes the writ of habeas
corpus to be granted only for clearly
erroneous applications of Supreme Court
case decisions. The constitutional error
appealability: “whether the remaining
three claims in this application should
properly be considered defaulted, as
procedural mistakes during the second
trial, when appellant acted as his own
counsel, appear to be the basis of the
procedural default for all three remaining
claims.”

-- 15 of 18 --

16
here does not meet this threshold. But
AEDPA does not establish a statutory high
hurdle for the issue of cause. And the
Supreme Court’s pronouncement in
Coleman applied no AEDPA-style
“unreasonable application” test in
determining the existence of cause.
Rather, it made its determination of cause,
or lack of cause, based on a
straightforward analysis whether the
denial of counsel was “an independent
constitutional violation.” 501 U.S. at 755.
We do so here as well. Our analysis in
Part II has established that the state court
committed constitutional error in forcing
Fischetti to go to trial himself, but that the
error was not sufficiently unreasonable
under Supreme Court precedent to
constitute an independent basis of habeas
relief under the threshold requirements of
§ 2254(d)(1). The constitutional error
suffices, however, to establish cause for
the procedural default.
Of course, once the petitioner has
established cause, he must show “‘actual
prejudice’ resulting from the errors of
which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982). Such
alleged errors must have “worked to his
actual and substantial disadvantage,
infecting his entire trial with error of
constitutional dimensions.” Id. at 170;
Werts, 228 F.3d at 193. In the context of
a substantive ineffective assistance claim,
this Court has stated that prejudice occurs
where “there is a reasonable probability
that, but for counsel's deficient
performance, the result of the proceeding
would have been different.” Sistrunk v.
Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
Fischetti’s first claim is that counsel
at his first trial rendered ineffective
assistance when he failed to challenge the
validity of Fischetti’s arrest and that the
court failed to conduct an adequate
suppression hearing. This claim is refuted
by the record. As Fischetti’s own
submission to the District Court asserts,
the first trial court did hold a suppression
hearing and upheld the validity of
Fischetti’s arrest. Memorandum in
Support for Writ of Habeas Corpus under
28 U.S.S.C. § 2254 at 23-24. Since the
validity of the arrest was actually
adjudicated after a hearing, the allegations
that counsel failed to raise the issue at trial
or to secure a hearing are utterly without
merit. And once the first trial court
adjudicated the issue, the law of the case
doctrine eliminated any requirement that
the second trial court reconsider the issue.
Waldorf v. Shuta, 142 F.3d 601, 616 n.4
(3d Cir. 1998). Therefore, Fischetti has
not even established error, let alone
prejudice.
Fischetti’s next claim, that appellate
counsel was ineffective in not appealing
the state court’s failure to provide him
with documents from his previous trial,
including court records and transcripts of
prior proceedings, also fails. Fischetti
admits that the second trial court ordered
Fischetti’s second counsel to provide him
with records but complains there was
“nothing in the docket or record to evince
that the court ever entered an order
directing that all court records in [his] case
be turned over to him.” Appellant Br. at

-- 16 of 18 --

17
27. Fischetti has failed to establish what
records he did not receive, and what
possible effect his failure to receive these
records had on his second trial. He has
therefore failed to establish prejudice for
this claim.
Fischetti’s final claim centers on
the second trial court’s decision to allow
some witness testimony from the first trial
to be admitted into evidence at the second
trial without a preliminary determination
regarding the unavailability of those
witnesses. A number of burglary victims
testified at the first trial, held some
fourteen years earlier than the second.
According to the record, some victims’
testimony from the first trial was admitted
in the second trial without any showing
that they were unavailable. Fischetti
argues that his Sixth Amendment rights
were violated because the second trial
court’s failure to hold a preliminary
hearing establishing unavailability
violated his right to confront witnesses.
He contends, by the same token, that his
appellate counsel’s failure to contest the
admission of this prior testimony on
appeal was ineffective assistance of
counsel.
The second trial court’s failure to
hold a preliminary hearing (and appellate
counsel’s failure to appeal this point) were
constitutional error. As the Supreme
Court has recently reminded us, under the
Sixth Amendment’s Confrontation Clause,
testimony from an earlier sworn
proceeding may not be admitted at a
criminal trial if the witness is available.
Crawford v. Washington, 124 S. Ct. 1354,
1369 (2004). That proposition was
established by the Supreme Court many
years ago, well before the trial of this case.
See Barber v. Page, 390 U.S. 719, 722-25
(1968). Admitting the prior testimony
here without a determination of
unavailability was contrary to Barber.
Was this Confrontation Clause
violation prejudicial? Although Fischetti
was convicted in his second trial of thirty-
eight counts of burglary, the record
discloses that he was sentenced only on
two of those counts. The trial court
sentenced Fischetti to ten to twenty years
for the burglary of the home of Joseph
Kostrub, a victim who did testify at the
second trial. The trial court then added a
consecutive ten to twenty year sentence
for the burglary of the home of Frieda
Barnes. However, Frieda Barnes did not
testify at the second trial; her testimony
was read into the record before the jury.
Since each of these burglaries was
distinct, the sentencing on the Kostrub
burglary could not have been affected by
any error in admitting testimony of victims
on separate burglaries.8 That is not so
with respect to the Barnes burglary,
however. Absent a determination that Ms.
Barnes was not available to appear, it was
not proper for Ms. Barnes’s testimony to
be read to the jury at the trial.
8 Moreover, since at least nine
victims did testify at the second trial, the
additional burglary counts without
witnesses were akin to “bringing coals to
Newcastle.”

-- 17 of 18 --

18
Accordingly, we will reverse and
remand the judgment of the District Court
only with respect to Fischetti’s sentence
on the Barnes burglary count. On remand,
the District Court may hold a hearing to
determine whether Ms. Barnes was
unavailable at the time of Fischetti’s trial.
If she was, then any error will not have
been prejudicial after all. If the District
Court cannot determine that Ms. Barnes
was unavailable, it should consider if the
error was prejudicial in light of all the
other evidence. If the District Court finds
that there was prejudice on this count of
the conviction, it should grant the writ as
to the Barnes count only with instructions
that the state court discharge Fischetti on
completion of his sentence on the Kostrub
count unless the state court either (1)
sentences Fischetti under another count
for which there was a victim who testified
at trial or (2) retries Fischetti on the
Barnes count.

-- 18 of 18 --