George Vickers, Jr. v. Superintendent Graterford SCI
2017 U.S. App. LEXIS 10003
| 3rd Cir. | 2017Background
- George Vickers was tried in Pennsylvania for severe injuries from a single punch; bench trial proceeded though no on-the-record or written jury-waiver form appears in the record.
- Private counsel withdrew; an assistant public defender assumed representation weeks before trial and, assuming a prior waiver had been completed, did not verify or secure a formal on-the-record/written jury-waiver before the bench trial.
- At a state PCRA evidentiary hearing, counsel testified he discussed the jury right with Vickers and recommended a bench trial for strategic reasons; the PCRA court credited counsel and found Vickers’s contrary testimony not credible.
- Pennsylvania appellate courts affirmed the PCRA court; Vickers then filed a federal habeas petition alleging ineffective assistance for failing to secure a proper jury-waiver.
- The district court granted habeas relief, finding counsel deficient and that Vickers was prejudiced; the Commonwealth appealed to the Third Circuit.
- The Third Circuit reviewed de novo (concluding AEDPA deference was not warranted because the state court failed to apply Strickland) and addressed Strickland deficiency and prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to obtain an on-the-record/written jury-waiver was constitutionally deficient | Vickers: counsel was ineffective for not securing formal waiver or fully advising him of jury-right aspects (e.g., unanimity) | Commonwealth: counsel’s conduct was not objectively unreasonable given the late substitution and assumed waiver | Held: Counsel’s performance was deficient — failing to verify a formal waiver fell below prevailing professional norms |
| Whether the deficiency produced structural error so prejudice is presumed | Vickers: deprivation of jury right (or incomplete advice) is structural; prejudice should be presumed | Commonwealth: no structural error; prejudice must be shown and measured | Held: No structural error; prejudice is not presumed where defendant was apprised of the basic right |
| Proper prejudice test under Strickland when pre-trial process caused forfeiture of procedural right (jury trial) | Vickers: (implicitly) prior Third Circuit test in Lilly focusing on different-factfinder outcome | Commonwealth: Lilly test (different outcome by jury) | Held: Modify Lilly — apply process-based test from Hill/Flores-Ortega/Lafler: show reasonable probability that but for counsel’s error the defendant would have exercised the jury right |
| Application of prejudice test to record facts | Vickers: would have chosen a jury; he was unaware of unanimity requirement | Commonwealth: record (credibility finding) shows strategic choice for bench trial; Vickers’s testimony not credible | Held: Vickers failed to show a reasonable probability he would have elected a jury; no Strickland prejudice — habeas grant reversed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test)
- Lafler v. Cooper, 566 U.S. 156 (process-based prejudice inquiry for plea-related counsel errors)
- Hill v. Lockhart, 474 U.S. 52 (prejudice requires showing defendant would not have pled guilty but for counsel’s errors)
- Roe v. Flores-Ortega, 528 U.S. 470 (prejudice for failure to pursue appeal measured by whether defendant would have appealed)
- United States v. Lilly, 536 F.3d 190 (3d Cir.) (prior Third Circuit approach to prejudice in jury-waiver ineffective-assistance claims; modified here)
- Arizona v. Fulminante, 499 U.S. 279 (structural error concept)
- Neder v. United States, 527 U.S. 1 (limits on structural-error classification)
- Schneckloth v. Bustamonte, 412 U.S. 218 (voluntary and intelligent waiver principles)