Tyrone Werts v. Donald T. Vaughn the District Attorney of the County of Philadelphia the Attorney General of the State of Pennsylvania

Gordon, 340, v. 407 Mass. (1) 553 N.E.2d that the perpetrator has either commit- 915, (1990). (2) Petitioner contends that ted felony; a committed a misdemeanor “in order to protected by be Massachu- (3) abuse; involving or committed an as- violence, setts law involving domestic a Thus, sault and battery. petitioner’s Id. family or household member must first claim his victim “protected was not a notify the court and obtain an order of person” under Massachusetts law lacks protection, order, abuse prevention or merit. placing alleged an abuser on notice violation of such order constitutes a crim- CONCLUSION inal offense.” Petitioner’s Br. at 18. Be- reasons, the foregoing cause For stepdaughter we hold never an obtained petitioner protection 209A, eligible order of under for removal Chapter under petitioner 1227(a)(2)(E)(i) § argues U.S.C. that she was not pro- a because he com person law, tected under mitted a Massachusetts “crime of domestic violence.” Pe and that his (1) offense therefore cannot be titioner’s convicted offense was both deemed a crime of domestic violence un- “crime violence” under 18 U.S.C. 1227(a)(2)(E)(i). § der 8 U.S.C. 16(b) Chapter § because it involved a substantial 209A does provide indeed a procedure risk that physical may force have been for the issuance and pro- enforcement used; (2) crime against committed tective alleged orders for victims of person protected by family the domestic or household Contrary abuse. petition- violence laws of Massachusetts. Accord assertions, however, er’s Chapter 209A ingly, we affirm August 1999 deter provides also general protection mination the Board of Immigration Ap household regardless members of wheth- peals. er avail themselves of such protec- tive orders. 209A,

Mass. Gen. § Laws ch. 1 defines

“family or household members” to include

“persons ... who are or were residing

together in household,” same and peti-

tioner admits stepdaughter that his resid-

ed the household at the time of his 209A, Chapter offense. § Tyrone WERTS, further states Appellant any “[w]henever law officer has rea- son to believe that a family or household VAUGHN; member has Donald T. been abused danger or is District Attor abused, being ney such of the County Philadelphia; officer shall use all reasonable Attorney means prevent further General of the State of abuse,” including Pennsylvania “assisting] the abused person in obtaining treatment,” medical No. 98-1764. “assist[ing] person the abused locating getting to a safe place,” “giv[ing] such United States Court of Appeals, person adequate immediate and notice of Third Circuit. his or her rights,” “assisting] such Argued Dec. 1999. person by activating the emergency judi- system cial when the court is closed for Sept. Filed 2000. business.” 209A, § Mass Gen. Laws ch. Moreover, the provides statute that even

when protective order place, is not in an

officer shall alleged arrest abuser

whenever he probable has cause to believe (Ar- Bruno, Miller, Susan J.

Jeffrey M. PA, Miller, Philadelphia, & gued), Nasuti Appellant. for Counsel (Argued), Assistant Murray, F. Marilyn Chief, Zucker, Attorney, Donna G. District Eisenberg, Ronald Litigation, Federal Division, Law Attorney District Deputy Gordon, District Assistant H. First Arnold Abraham, Attor- District Lynne Attorney, Philadel- Attorney, District ney, Office PA, Appellees. Counsel phia, MANSMANN, McKEE Before: GREENBERG, Judges. Circuit THE COURT OF OPINION MANSMANN, Judge. Circuit asked to decide we are appeal, In this pres- iswho petitioner, a habeas whether of life mandatory term serving ently for second a conviction upon imprisonment constitu- murder, denied his degree prose- trial due to a fair right to tional during alleged misconduct cutor’s state closing arguments of opening contends also petitioner trial. effec- he was denied in the alternative extent counsel tive assistance due his preserve failed trial counsel we exception, one With claim. process claim is process due petitioner’s find the nonde- As to the defaulted. procedurally issue, no merit we find faulted due Moreover, we find claim. petitioner’s application courts’ appellate state U.S. Washington, 466 of Strickland (1984), to L.Ed.2d 674 104 S.Ct. was claims ineffectiveness petitioner’s we Accordingly, unreasonable. objectively will affirm the judgment of the ing District robbery yielded which a total sum Court. of $35. Spann dropped off the co-defendants I. one-by-one quick after their get-away from The facts of this case not disputed. are Shirley’s. The next day, Moore turned 3,1975, On December following jury a himself to the police upon learning that in the Court of Common Pleas of Philadel- the police were looking for him in connec- phia County, petitioner, Werts, Tyrone tion robbery with the and murder at Shir- was murder, convicted of degree second ley’s. negotiated Moore a deal with the robbery, criminal conspiracy, posses- and agreed testify against —he sion of an instrument of a crime. We set Werts the other and co-defendants. In forth the leading facts to Werts’ arrest and exchange, the prosecution agreed to conviction below. charge offense, Moore with a lesser gener- Moore, co-defendant, Atlee testified murder, al recommend the sentencing that on crime, date of he was home court give serious consideration to lenien- friend, drinking Jones, when his William cy, arrange for Moore’s bail to be reduced stopped by suggested they rob some- $120,000 from $60,000 ROR, eash to one or place. some Moore suggested they get a federal detainer lifted so he could be rob a speakeasy, Shirley’s, located on West released. Arizona Street Philadelphia, Pennsylva- later, One month Werts was arrested in nia. agreed Jones and the two men then by home a “phalanx” officers, police joined co-defendants, forces with the other armed pistols with and shotguns, who Norris, Levan Spann, Bruce and Werts. stormed the house and broke down the The five co-defendants off in Spann’s drove door with an axe. Werts hiding was found car Shirley’s, towards with Spann at the in a space crawl above a bedroom closet. wheel and Werts seated in pas- the front The search and arrest of was led senger Jones, seat. Moore and Norris McMillan, Detective who alleged was positioned were in the Spann’s back seat of have beaten and bullied at the time car. It agreed that Spann and Norris of his police arrest. searched Werts’

would commit robbery since both house for weapon the murder to no avail. Moore and Jones were known and could Werts was where, then taken custody into subsequently be patrons identified without counsel, the benefit of he waived at Shirley’s. Miranda rights gave an incrimina- Spann and Norris exited vehicle and ting statement to one of the homicide de- retrieved shotgun pistol from the essence, tectives. Werts stated that he trunk of Spann’s car which they hid in present when the other co-defendants their clothing. They proceeded then into decided to Shirley’s, rob refused go Shirley’s. Spann While and Norris en- inside the speakeasy, and later disposed of tered the speakeasy, Jones stood on the the weapons. steps outside and Moore walked to a near- by alley. Werts remained seated in the Werts was tried separately from the front passenger seat of car. Suddenly, other co-defendants. He testified that on a shot rang out thereafter, and shortly evening murder, the robbery and Spann and Norris swiftly speak- exited the had drinking been heavily a birthday easy. Quick heels, on their men, Moore and party with three none of whom was Jones Spann followed and Morris back to one of the co-defendants. Werts testified the car. Moore asked and Spann Norris that he very became drunk stepped and what happened Spann and replied that outside where he encountered Bruce Nor- Norris fact, had shot someone. In William ris. Werts offered five Norris dollars to Bridgeman had been shot and killed dur- drive him home because he was too drunk In this space. in a crawl hiding the found into climbed himself. Werts to drive that he explain attempted to Werts regard, car and of Norris’ seat passenger front was he police the because hiding from Norris, deep into a was fell waiting for while in encounter prior a thing afraid of them due to next that the testified sleep. Werts spine by the in the by he was shot being awakened 1969 when was remembered he injuries. serious suffered police scrambled and other co-defendants the however, allow court, robbery refused the car after the into back hiding. had why Norris he was say explain them Werts one of heard being in- denied Werts someone. shot of jury returned verdict After the dispos- or robbery the planning volved post- filed charges, Werts to all guilty as No one weapons thereafter. the ing of alia, raised, inter in which he trial motions did not enter Werts the fact that disputes clos- during the misconduct prosecutorial speakeasy. the the statement, focusing on specifically ing against Werts would case that Moore prosecution’s comment testimony that prison. to Moore’s back to down man” if sent boiled abe “marked confes- and to Werts’ of Werts’ present was its denial upheld Werts The trial of the disposed he police the sion to after the prosecutor for a mistrial motion government’s the Consequently, summation, finding that weapons. his completed or fail succeed would against Werts were motivated case remarks alleged con- strength of the based on of and statements the conduct part by credibility. and Werts’ statement. closing fession in his counsel defense Thus, concluded trial court accuracy and volun- attacked Werts reversible constitute did not statements on the alleged confession of the tariness mo- post-trial his denying After error. from increased suffering that he was basis to a tions, sentenced Werts the trial court brutality brought police on pain, back for imprisonment of life mandatory term injury, and prior back aggravated which murder, term a consecutive degree second of time at the withdrawal by heroin conspiracy, criminal for years five ten of seriously impaired his interrogation which years ten of five to terms and concurrent voluntary an accurate give ability to to five and one-half two robbery and for expert presented Werts statement. of á an instrument of Nelson, years possession for on Dr. testimony psychiatrist, of a crime. give his was allowed issue who this impact regarding opinion

professional counsel, Chap- B. Colie Through trial time at the trauma sustained his sen- appealed Esquire, Werts pelle, lower back pre-existing to Werts’ arrest the Penn- directly to conviction tence and for craving heroin addict’s injury, a heroin In his direct Court. sylvania hours, injection for an if had not had he claims numerous Werts raised appeal, crav- from intense an amount of stress he argued that which error ability to heroin, about Werts’ for ing prejudicial fair trial denied a he is when under interrogators his resist in- comments improper Dr. Nelson mental stress. to, comment cluding, but not limited however, profession- his give permitted, man.” Werts “marked was a that Moore an effect of as to what opinion al alleg- other several referenced specifically be on would heroin craving intense by the made improper comments edly decision make a rational ability issue are at which none of prosecutor, during primary motivation as to Werts’ or us. before petition habeas the federal interrogation. his argued further appeal, direct motion denial trial court’s that the the infer- attempted to rebut also remarks prejudicial based for mistrial Detective from guilt flowed ence stolen regarding McMillan by Detective had been testimony that McMillan’s clothing,1 prosecutor’s inflammatory consider, Court did not on direct appeal characterization of Werts a dope addict any due process challenges based on the thief, and prosecutor’s and the inflammato- prosecutor’s (1) remarks to the effect that ry remark that Moore was a “marked Detective McMillan thought Werts was a man” right violated his to a fair trial and killer; (2) people in Werts’ neighborhood due and therefore constituted re- decide to commit robbery reason; for no versible error. (3) personally and vouched for the cred- ibility Pennsylvania homicide Detectives Court af- McMillan judgments firmed the Dougherty. and sentence and con- viction in a published opinion. See Com- 15, May 1979, On Werts filed pro a se Werts, monwealth v. 483 Pa. 395 A.2d petition for collateral relief under (1978). footnote, In a Pennsylva- Pennsylvania Post Conviction Hearing Act nia Supreme Court noted that it consid- (“PCHA”), §§ (1966), P.S. et seq. 1180-1 ered, merit, but dismissed for lack of nu- counsel, as amended.2 New Lip- Louis error, merous assertions of including: schitz, Esquire, was appointed to repre- 5) ... that the trial in court erred sent inWerts the state collateral proceed- declaring mistrial a on the grounds that ing. Counsel filed an petition amended in made an allegedly preju- alleged which he deprived Werts was 6) dicial remark during summation; his right his to effective assistance of counsel that the trial court in erred not declar- trial, post-trial in motions and on direct ing a grounds mistrial on the that De- appeal. Essentially, Werts argued that tective Lerough McMillan made an al- Attorney Chappelle was ineffective for fail- legedly prejudicial remark during his ing to objections raise during trial and 10) testimony; ... that the prosecutor closing "argument, failing move a acted improperly in misstating the evi- mistrial occasions, on several and for fail- dence during summation; ... ing preserve certain in issues written 483 Pa. at 226 n. 395 A.2d at 1318 n. 2. post-trial motions or appeal. on direct It is clear from Werts’ brief that the chal- The alleged errors of counsel which are lenged remark at the heart of the fifth pertinent (1) appeal include: Chap- contention is the prosecutor’s above state- pelle’s failure ment that Moore would be a “marked comment in his opening statement man” if he prison. was returned to At the Moore “is obviously put going his life base of the sixth “meritless” contention is his hands testifying,” failure to request Detective McMillan’s statement that dur- mistrial, to raise the post-trial issue in ing the house, search of Werts’ he found motions and to raise preserve several articles of clothing that had been issue reported review; (2) for appellate stolen. Finally, Chap- the underlying pelle’s comment at object, issue failure to contention request timely ten'"is cautionary instructions, misstatement in his closing to move for a mis- that Moore testified that preserve and to for appeal stated all of the “I’m not going there” during a following conversa- comments of tion with Atlee Moore regarding plan- (a) closing argument: that Detective ning of the robbery. Thus, Werts did not McMillan thought (b) killer; Werts was a raise, and the Pennsylvania Supreme (c) Moore was a man”; “marked peo- trial, 1. At lodged defense counsel sponse a timely and remove its taint from the minds objection to Detective jurors. McMillan's unsolicited response regarding clothing. The trial denied motion for mistrial the PCHA superseded gave which, cautionary instruction defense replaced by the Post Conviction Relief Act argued counsel appeal, on direct ("PCRA”), failed to §§ Pa.Cons.Stat.Ann. 9541 et extinguish prejudicial seq. mature of the re-

189 to address also failed Court Superior to com decide neighborhood in Werts’ ple was counsel blue;” and, that PCHA argument Werts’ the clear “out of robbery mit raise some of the failing to for addict thief ineffective (d) dope ais Werts that filed with the in his brief believe raised not issues jury should maybe the an did consider Superior Court court held court. The says. The PCHA what to raise a both Werts trial counsel’s failure at which whether hearing evidentiary and, re- objection prejudicial to certain timely testified Chappelle counsel and trial 1983, to violated 21, no merit the finding marks made September on contentions, Amendment to right effective peti denied Werts’ Sixth of Werts’ any Superior The Court relief. of counsel. assistance post-conviction tion for to to failure that trial counsel’s held C. by Samuel represented Now not amount to did improper statements Stretton, appealed Esquire, Werts of counsel. The assistance ineffective Pennsylva to judgment court’s PCHA trial counsel failed that court found coun appeal, In this Superior nia Court. aon tacti- statements object to the based process time a due for first sel raised a reasonable basis which had cal decision that argued Werts challenge. Specifically, inter- defendant’s serve the designed to de McMillan and Detective the prosecutor ests, ie., state- prosecutor’s refute the process due right nied Werts keep from with evidence ment and/or comments which following making the by ob- to the comment drawing attention not objected to or timely not were either Thus, declined to the court jecting to it. (1) counsel: by trial appeal for preserved those circum- find ineffectiveness under closing during comment prosecutor’s stances. thought McMillan that Detective argument petition for subsequently filed Werts (2) killer; was a Werts Supreme Pennsylvania to the allocator closing argument during comment 3, February Court, on was denied which (3) man;” prose a “marked Moore was opinion. Commonwealth without an 1986 closing argument during statement cutor’s (E.D. Werts, Docket Allocator No. 1016 v. thief and and a an addict Werts 1985). peti in support his brief In him; believe not jury should maybe arguments tion, the same raised Werts during (4) remark superior in his brief presented those people Werts’ argument closing and inef process to due regard court with robbery to commit decide neighborhood Almost ten of counsel. fective assistance addition, also In Werts reason.3 for no 23, 1996, later, January Werts on years was ineffective that PCHA counsel argued for state collateral petition filed second of these issues raise some failing Pennsylva relief, pursuant time this for collateral relief.4 petition his amended (“PCRA”). Act Post Conviction Relief nia rejected these Superior summarily dismissed was petition This opinion dated in a memorandum claims taken. 9, 1996; appeal no May Werts, v. 1985. Commonwealth August federal 18, 1997, filed a (1985). Werts March On A.2d 52 Pa.Super. 503 he asserted action corpus which habeas rejecting arguments, claim, ar In his first four claims. claims process due to address the failed improper statements certain say gues that than to other in Werts’ brief raised his due denied him trial. The a fair provided that of counsel based assistance for ineffective tion other com- several also referenced 3. Werts proceedings. appeal. at such representation upon at issue in which are not ments 722, 752, 111 Thompson, U.S. Coleman right guarantee a Constitution does (citations (1991) L.Ed.2d S.Ct. omitted). proceed- review at state collateral to counsel Therefore, held Court has ings. viola- Amendment there can be no Sixth right to a fair trial. To the extent ness will not be found based on a tactical this issue was raised considered on decision and/or which had a reasonable basis de- the merits appeal on direct to Pennsyl signed to serve the defendant’s interests. Court, vania Werts it submits Strickland v. Washington, 466 U.S. properly exhausted at that 690-91, level and 104 S.Ct. 80 L.Ed.2d 674 that the court supreme (1984). erred in rejecting Magistrate The Judge found that argument, it is patently clear the the Pennsylvania Superior Court’s deter- deprived remarks Werts of a mination, that trial performance counsel’s fair trial. To the extent that trial counsel was not deficient under Strickland and did either waived the issue at trial and/or prejudice defendant, not was reason- failed preserve to on properly appeal, superior found, able. The court and the lapse contends that this constitutes Magistrate Judge agreed, that defense ineffective assistance of counsel violation counsel’s actions in object to failing to the of the Sixth and Fourteenth Amendments. improper comments at they the time were two asserts other claims his fed made and waiting until fin- eral petition, habeas neither of which is ished his summation moving before for a presently us.5 before mistrial was a reasonable strategy em- ployed by counsel. Defense counsel testi- The District Court assigned this fied at the PCHA that he hearing did not case to a Magistrate Judge for report a seek curative instructions out of a concern and recommendation. regard to With of the impact of highlighting these state- claim, Werts’ first the Magistrate Judge ments. Magistrate Judge held that neither addressed nor on ruled Werts’ alle defense counsel’s strategy reasonable not gation that improper and highlight to these statements through a prejudicial remarks him pro denied due request for curative instructions will not cess and a Instead, fair trial. Magis be deemed ineffective in hindsight. trate Judge solely concentrated on Werts’ argument alternative defense coun Werts timely objections filed —that sel’s failure timely pre thus Magistrate Judge’s Report and Recom serve the issue of denial of a fair trial mendation in which specifically he empha resulting the prosecutor’s from prejudicial sized the fact that Magistrate Judge remarks constituted ineffective assistance failed to address his process due argu of counsel in violation of the Sixth Nonetheless, Amend ment. the District Court ap ment. In that regard, Magistrate proved adopted the Report and Rec Judge held that analysis Strickland ap ommendation of the Magistrate Judge in plied. standard, Under that an opinion ineffective- order and 31, 1998, filed on July 5. The Court District dismissed following mony or evidence of solely a witness because claims and Werts has appealed por- he drug had been user. The crux of the tion of the District Court's decision. Werts' defense was that Werts' confession was the third challenges claim the state trial court's result of heroin during interroga- withdrawal presentation limitation of of his defense society's tion. intensely negative Given view on the why as to hiding issue he was in the abuse, drugs drug Werts contended space crawl and the expert issue of use of that the permit failure of the trial any court to testimony establish voluntary nature of inquiry potential juror into bias in this area incriminating statement. Werts contend- question raised a concerning serious the abili- ed the trial court improperly erred in limiting ty prospective jurors to consider the de- his defense and that trial counsel was ineffec- Moreover, fense’s objectively. contentions failing preserve tive for ap- this issue for Werts submitted that the prevalence of such peal. culture, coupled bias in our promi- with the claim, In his fourth nent role drug Werts contended challenge abuse in his right confession, was denied his alleged a fair trial an cast doubt on the in- impartial jury where the tegrity refused proceeding the voir dire and suffi- permit prospective counsel to jurors ask ciently dur- undermined confidence the out- ing voir dire reject whether would testi- come to warrant habeas relief. doing from precluded be and would claims argu addressing the due without reasons, the District procedural first claim— now for in his so by Werts ment raised prose claims were defaulted held the Court statements improper that the District showing absent a fair trial. reviewed him a be cutor denied cannot instead analysis occur. Id. justice its would miscarriage focused was ineffec counsel that trial the challenged claim comments of Viewing Werts’ the object to the to failing tive for of the evi- weight against the state opening in his comment improper dence, found did the District Court his life placed a co-defendant ment that error and therefore grave not constitute testify against to agreed when danger The District Court unreviewable. Id. were object improp to the Werts, to failing 31, July 1998 order in its stated further his during of the er comments ap- for cause probable there was no that (1) McMillan Detective closing that peal. (2) killer, Werts awas Werts thought a timely for application a Werts filed (3) thief, and Werts dope addict us which with appealability certificate in the robb participate to “casually decided 14, A panel 1999. on June 97-1977, granted we No. Vaughn, v. ery.”6 made a that had 1998). found court 31, with our (E.D.Pa. Agreeing July 5 his he was denied showing that court, the District Court substantial superior prosecutorial to object was to a fair due right to failure that counsel’s found that he was denied to draw atten desire misconduct by his not motivated assis- by objecting.7 to effective right Amendment these comments tion to Sixth that Thus, concluded to counsel’s failure District Court due of counsel tance not deficient and prosecu- to the timely decision in a fashion object this “tactical petitioner.” Thus, prejudice re- certainly appeal, did our comments. tor’s District Court Accordingly, the 4. de- judgment Id. at the District view of Court’s decision counsel’s that defense concluded habeas for a writ of petition nying Werts’ reason comments was highlight not to issues. limited to these corpus is ineffective would not be deemed able and at 5. hindsight. Id. ap over this jurisdiction We have §§ 1291 and to 28 U.S.C. peal pursuant that held further District Court review over plenary exercise 2253. We was ineffective claims counsel

Werts’ in a legal conclusions District Court’s failing to timely and object failing for clearly er apply proceeding habeas defaulted. were curative instruction seek a findings in dis to factual roneous standard superior that the found District 257, F.3d 262 Wiley, 201 Rios v. pute. See because claims rejected these had court (3d Cir.2000); Ryan, v. 953 F.2d Caswell thus unre- finally litigated and they were Cir.1992) (3d v. Ful (citing Bond state highest Id. Since the viewable.8 Cir.1989)). (3d comer, 306, 309 F.2d these the merits of ruled on has not court claim, Indeed, only Werts’ para- or Court. Court’s the District appears that 6. It failing participate for "casually was ineffective phrase, decided to counsel prosecu- prosecutor’s comment robbery,” refers a curative instruction and seek haphaz- neighborhood people closing Moore during remark tor’s ardly commit crimes. decide to returned to if he a "marked would be man” superior denied review prison, was drawing attention to avoid addition In finally liti- been had because this issue counsel by objecting, defense the comment Thus, the District gated appeal. direct in the comment in thought he would refute also Werts' claims of all of conclusion that Court's about opening statement prosecutor's arising out of counsel assistance of ineffective safety evi- fearing with for his co-defendant pro- were improper remarks presentation of his case. during the dence legal error. cedurally defaulted constitutes infra, Court mis- the District explained 8. As Superi- Pennsylvania holding states Lambert, (internal II. 134 F.3d at 513 cita omitted). may tions We excuse exhaus turning Before to the merits of tion, however, if requiring exhaustion appeal, we must first consider whether futile, i.e., would be impossi exhaustion is the due process claim and the claim of procedural ble due to default and state law ineffective assistance of for failing counsel clearly forecloses review of the unexhaust or preserve raise due claim (citations ed Id. at claim.9 518-19 omit appeal asserted inWerts his federal ted); Larkins, also see Lines 208 F.3d petition are properly habeas before us. (3d Cir.2000) 159-60 (citing McCand the case of a person incarcerated from a (3d Vaughn, less v. 172 F.3d court, judgment of a state a prerequisite to (if Cir.1999)) procedural state rules bar a federal habeas review is that the petitioner petitioner from seeking further relief in have exhausted the remedies available to courts, the state exhaustion will be deemed in the him state courts to the extent such satisfied since an absence of an available remedies exist and are effective. 28 exists). state corrective 2254(b)(1) (1997). § U.S.C. If a petitioner right raise, has under state law to by Although may exhaustion be available any procedure, the question pre excused, may we nonetheless be precluded sented, then he will not be deemed to have from reviewing the merits of claims exhausted his available state court reme Lines, deemed exhausted. In recently we 2254(c) (1997). § 28 dies. U.S.C. See also held: Blackwell, 506, Lambert v. 134 F.3d 513 claims deemed exhausted because of a (3d Cir.1997). This require exhaustion procedural state bar are procedurally predicated ment is principle of com defaulted, and may federal courts ity which ensures that state courts have consider their merits unless the petition the first opportunity to review federal con er prejudice’ “establishes ‘cause and or a stitutional challenges to state convictions ‘fundamental miscarriage justice’ of preserves of role state courts in excuse default.” [McCandless v. protecting federally guaranteed rights. (3d Vaughn, 255, 172 F.3d 260 Cir. Caswell, (citations 953 F.2d at 857 omit 1999)]. See also Coleman Thomp [v. ted). son, 722, 731, 501 2546, U.S. 111 S.Ct. previously We explained ex (1991) 115 L.Ed.2d 640 ]. requirement haustion as follows: Lines, also, 208 F.3d at 160. See v. Caswell petitioner A who has an raised issue on (3d 853, Cir.1992) (“if Ryan, 953 F.2d 857 however, appeal, direct is not required a state court has refused to consider a again raise it post-convic a state petitioner’s claims because of a violation of Thus, tion proceeding. ha federal procedural rules, state a federal habeas beas claim must have “fairly pre been court is barred procedural default courts, ie., sented” to the state it must from considering claims, Harris v. be the equivalent substantial pre of that Reed, 255, 1038, 489 U.S. 109 S.Ct. 103 sented to the state courts. addition (1989), L.Ed.2d 308 unless peti- the habeas the state court must have available to it tioner can show ‘cause’ for the default and the same legal method of analysis as (addition- ‘prejudice’ thereto,”) attributable employed be in federal court. omitted). al citations petitioner The habeas carries the burden proving exhaustion of all available Supreme Court delin has state remedies. eated what constitutes “cause” for pro- procedural 9. A state default so; occurs "the (2) when earlier proceeding but failed to do or exists, state court refuses to hear the procedural merits of the some other bar as a such (1) because Lambert, claim either the defendant waived statute of limitations.” 134 F.3d at (citation omitted). PCRA claim she could have raised in an 518 alternative, if peti In the must “show petitioner cedural default: cause and prej fails to demonstrate factor external tioner objective that some default, efforts to com- the federal habeas counsel’s udice for the impeded defense rule.” procedural may proce the State’s still review an otherwise ply with 488, Carrier, 478, 477 U.S. Murray upon showing v. claim durally defaulted (1986). By way 91 L.Ed.2d 397 S.Ct. that failure to review the federal habeas showing example, opined the Court jus “miscarriage will in a claim result claim was not legal basis for a a factual or Generally, exception apply tice.” will showing reasonably available to counsel or cases, i.e., extraordinary “where a only officials suffi- by government interference re probably violation has constitutional compliance impracticable, cient to make of one who is actu sulted the conviction cause for fed- acceptable would constitute Id. at ally innocent....” S.Ct. of the defaulted claim. habeas review eral Thus, miscarriage to establish a Moreover, ineffective assistance Id. it is justice, petitioner prove must deemed counsel has been likely than not that no reasonable more standard. Id. to fall within this Court Schlup have him. juror would convicted noted, however, that the exhaustion Delo, 298, 326, 513 U.S. 115 S.Ct. an ineffec- requires that generally doctrine (1995). L.Ed.2d 808 to the presented claim “be tive assistance be- independent an claim state courts as III. cause for a may it be used to establish fore 488-89, 106 default.” Id. procedural mind, in we principles With these S.Ct. 2639. case. In his turn to the facts of this claims his petition, habeas prejudice to the federal regard With violated cer right process to due must petitioner the habeas requirement, “ made the comments improper at ... tain merely ‘not that the errors prove closing ar during opening but prejudice, possibility trial created vouching regard to guments. With to his actual and sub they worked statements,10 was not raised at this claim his entire disadvantage, infecting stantial trial, in the state collat appeal direct or dimen error of constitutional trial with ” Werts raises 494, proceedings. eral review (quot 2639 Id. at 106 S.Ct. sions.’ 152, in federal habeas first time Frady, for the v. 456 U.S. ing United States (1982)). Thus, failed 1584, although Werts has 170, 102 petition. 71 L.Ed.2d 816 S.Ct. remedies as to his state peti to exhaust essentially requires This standard statements, he be without vouching would “fundamental to show he was denied tioner if he were re process of an a state corrective Id. In the context fairness” at trial. in this claim state claim, bring quired we have stated assistance ineffective Indeed, procedurally he would be is a now. occurs where “there prejudice obtaining state relief as his that, from but for coun barred probability reasonable waived under be deemed result of claim would performance, sel’s deficient 9544(b) § PCRA, Ann. 42 Pa. Cons.Stat. would have been different.” proceeding (3d year 666, by the one statute barred Vaughn, F.3d 670 Sistrunk v. and/or PCRA, 42 Pa. Cons. Cir.1996). under the limitations a number of employed policemen for credibility for the 10. The vouched color they certain attitudes to years. follows: If had homicide detectives as cases, in thinking they would not be in their assigned Homicide men are These They to be have Homicide Division. Philadelphia Depart- Police Division of the bring They professionals work. cannot ment, department. They are top division every people beat them time They professionals. worked in have thehi. It get out of come in to statements years. department a number of police for like that. just does not work They been They to that. have have testified 9545(b). § Stat. Ann. Under circum- preserve these that failure to an appeal issue stances, it would require be futile to ex- results the denial of appeal. review on Therefore, haustion. is excused v. Vaughn, Sistrunk 96 F.3d at 671 (citing requirement 302(a) from exhaustion toas Pa.R.App.P. Commonwealth vouching statements. Labron, 86, Pa. 669 A.2d (1995), grounds, rev’d on other 518 U.S. process Werts’ due based on claim 116 S.Ct. 135 L.Ed.2d 1031 statements, the prosecutor’s vouching how (1996)). Indeed, Superior Court re- ever, here, is despite not reviewable excus fused to address Werts’ process due claims exhaustion, able pro because claim this is raised for appellate the first time in his Thus, cedurally may defaulted. we brief on collateral review to that court. consider the merits of process Werts’ due Thus, due process claim as to these argument regarding the vouching state procedurally statements defaulted. ments unless he has established “cause Moreover, because alleged Werts has not prejudice” or a miscar “fundamental prejudice” “cause and “miscarriage or a riage justice.” only We find that not justice,” may we not review proee- these elements, has proven Werts not these durally defaulted state claims. alleged has not even their existence as a Accordingly, for relief. basis this feder process argument Werts’ last due case, al habeas we precluded are from centers on the during remark reviewing process Werts’ due claim predi his dosing argument that Moore would be upon vouching cated statements. a “marked man” were he pris returned to Werts’s due claim regard on. Defense counsel waited to ing the prosecutor’s during remark until after the prosecutor statement opening statement that a co-defendant was closing. concluded his The trial court putting in danger by his life testifying objection ruled his was untimely and de Werts, against prosecutor’s and the re nied counsel’s motion for a mistrial. De marks in his dosing statement that people fense counsel raised this claim in post-trial in neighborhood Werts’ crimes commit and in motions his direct to appeal haphazardly and that Detective McMillan Pennsylvania Supreme Court, which was thought killer, was a pre were not subsequently denied as in lacking merit. for appeal served because defense counsel This by claim is not reviewable the PCHA object trial, to timely faked failed to finally litigated because was on motions, raise these in post-trial claims direct appeal. § 19 See 1180- P.S. and failed to raise these on direct claims 4(a)(3)(1966).11 Thus, Werts has exhaust appeal Pennsylvania Supreme Court ed his state as process remedies to the due or in Werts’ amended petition. PCHA claim regarding the “marked man” state The first time Werts raised this due pro ment. Accordingly, claim is reviewa argument cess was in his brief to the ble the federal habeas court. Pennsylvania Superior in appeal Court from the trial court’s denial of his PCHA arguing Instead of that cause and petition. law, Pennsylvania Under prejudice these existed to excuse the procedural claims are deemed pur waived PCHA for default or that a miscarriage justice poses because could been have raised would if result the procedurally defaulted at an earlier in stage the proceedings reviewed, and claims argued were 1180-4(b) (1966). were § not. 19 P.S. petition habeas federal that counsel’s Moreover, Pennsylvania provides law also object failure improper comments PCRA, 11. version The of the PCHA replaced by in effect at the and was 42 Pa. Cons. sought time Werts collateral review codi- §§ seq., Stat. Ann. 9541 et. as amended in (1966). §§ at 19 seq. fied P.S. et 1180-1 repealed PCHA was effective June mistrial, Pennsylvania Supreme review request timely, at trial court in Penn- highest mo- state post-trial Court.13 in written raise the issues merits of sylvania the due has never ruled on the tions, preserve and to raise constituted inef- claim based on the appeal for Werts’ ineffectiveness issues process during closing of counsel violation man” comment ar- assistance “marked fective pro- The District for and would not do so now gument Amendment. the Sixth Thus, that all of Werts’ as- have held reasons. the ineffective appears to cedural assistance of counsel of ineffective claim based on the claims sistance of counsel improper arising during dosing out of ar- “marked man” comment defaulted and procedurally were remarks defaulted. gument procedurally has been showing unreviewable absent thus the ineffectiveness PCHA counsel raised Hav- justice would occur. miscarriage object for trial failure to claim counsel’s comments, ing found that remarks of the remaining improper weight of the against when viewed opportunity at the earliest error, evidence, grave constitute did not petition. These his amended PCHA al- ruled that counsel’s the District Court on the merits and claims were considered failing for ineffectiveness leged court, as rejected by the well PCHA claims for the due preserve review. superior court on collateral by the federal not reviewable appeal was claims Accordingly, ineffectiveness court. habeas improper remarks based on reviewing briefs After man” other than the “marked to the Penn appeal of his direct support in this federal comment are reviewable Court, and his amended sylvania turn now to the proceeding. habeas We superior briefs to the petition and PCHA appeal. merits of Werts’ review, on collateral supreme courts of the trial court opinions as the as well IV. and post-collat motions denying post-trial The Antiterrorism and Effective relief, Pennsylvania Supreme eral (“AEDPA”),14 Act of Penalty Death review, superior and of Court on direct 24, 1996, April which went into effect review, that the we find court on collateral reviewing state amended the standards counsel’s claims based on ineffectiveness peti in federal habeas judgments court improper to the comments failure § 2254. Since filed under 28 U.S.C. tions preserve these of or petition on March filed his habeas procedurally are not de appeal claims for 1997, 18, date of after the effective exception prosecu faulted with the AEDPA, apply required we are dosing argument tor’s remark in the AED- set forth amended standards man” if he would be a “marked Moore corpus his claim for federal habeas PA to In the state prison.12 would return 521 U.S. Murphy, Lindh v. relief. See superior court proceeding, collateral 2059, 320, 336, L.Ed.2d 481 117 138 S.Ct. claim to review the ineffectiveness refused (1997). “marked man” object to the failing 2254(a) (1997), a § fed- 28 chal Under U.S.C. Werts’ due comment because only required to consider eral court “marked man” com lenge based on the individuals filed on behalf of petitions finally litigated on direct ment had been Supreme rejected Pennsylvania Court 13. The based on coun- 12.Any ineffectiveness claim any discussion. meritless without this claim as vouching object to the state- failure to sel's 222, Werts, 226 n. 483 Pa. v. Commonwealth 2, procedurally defaulted as this ments is also (1978). 2 A.2d 1318 n. 395 presented to the courts claim was never state process or ineffective assis- as either a due 104-132, (1996). Stat. 1214 No. challenge. 14. Pub.L. tance of counsel law, custody by a state Federal pursuant judg- court as determined the Su- States,” grounded preme ment which are on a violation of Court of the United or (2) application “involved an unreasonable the Constitution or the laws or treaties law, Moreover, ... clearly established Federal petition- the United States. by the Supreme er has to overcome the exhaustion hurdle determined Court of 2254(b) earlier, § described United States.” Under the “con- U.S.C. (1997). clause, trary to” a federal habeas court may grant the writ if the state court The AEDPA increases the def arrives at a conclusion to that opposite give erence federal courts must by question reached this Court on a findings legal factual determinations law or if the state court decides case of the state courts. Dickerson v. See differently than on a this Court has set (3d Cir.1996). Vaughn, 90 F.3d materially indistinguishable facts. Federal habeas relief is corpus precluded application” Under the “unreasonable any adjudicated as to claim that was on the clause, a may grant federal habeas court merits in proceeding a state court unless the writ if the state identifies the adjudication: such governing legal principle correct from (1) resulted in a decision that was con- this Court’s but unreasonably decisions to, trary or involved an unreasonable applies principle to the facts of the of, application clearly established Feder- prisoner’s case. law, Supreme al as determined appropriate inquiry 120 S.Ct. at 1523. The States; Court of the United or to be made under the appli- “unreasonable (2) resulted a decision that was based standard, stated, cation of’ the Court on an unreasonable determination of the “whether application the state court’s in light presented facts of the evidence clearly objec- established federal law was in the State court proceeding. tively unreasonable.” Id. at 1521. In fur- 2254(d)(1) (2) (1997). §§ 28 U.S.C. delineating ther applica- “unreasonable Factual issues determined a state court component, tion of’ presumed are to be peti- correct and the application stressed that an unreasonable tioner rebutting bears the burden of of federal law is different from an incor- presumption by convincing clear and evi- application rect of such law and a federal 2254(e)(1) (1997).15 § dence. 28 U.S.C. may grant habeas court relief unless that court that a determines state court’s 18, 2000, April On the Su application incorrect or erroneous of clear- preme Court issued decision Williams ly established federal law was also unrea- Taylor, 1495, 146 529 U.S. 120 S.Ct. sonable. Id. at 1522. (2000), L.Ed.2d 389 in which the Court construed the new standard of review as A little year over one before the 2254(d)(1). set forth in amended section Williams, Supreme Court’s in decision we Justice opinion O’Connor delivered the of also construed the new of standard review provided the Court wherein she the follow 2254(d)(1) under section in Matteo v. Su ing interpretation respect with to the stan (3d Albion, perintendent, SCI 171 F.3d 877 dard of review: Cir.1999), sitting en banc. There we held 2254(d)(1) that 2254(d)(1), requires section a federal § may

Under the writ issue habeas court to make inquiries: two only if one of the following two condi- First, adjudi- tions is satisfied —the state-court federal the habeas court must de- (1) cation resulted a decision that termine whether the state court decision contrary clearly “was to ... “contrary Supreme established to” preee- Court prescribes 2254(e)(2)(A) (B) (1997). §§ The AEDPA also restrictions on These sec- evidentiary hearing may when an be held in a tions of the statute are not at issue in this appeal. federal habeas case. See 28 U.S.C. appli was based on an “unreasonable claim. sion petitioner’s the governs that dent precedent. Id. only petition- Supreme if the cation of’ Court appropriate Relief is prece- application “unreasonable “Supreme analyzing Court In the er shows contrary to are not authorized to provision, an outcome of’ we requires dent state simply the relevant because grant corpus reached habeas relief Dubois], 145 F.3d disagree court.” we with the state court’s decision [v. O’Brien (1st Cir.1998)]. [16, In the ab- have reached a differ 24-25 or because we would showing, the federal of such Id. sence ent result if left to our own devices. 25) (other ask whether state O’Brien, court must at habeas 145 F.3d (quoting an “unreason- represents omitted). court decision contrary holding A citations pre- Supreme of’ Court application able review which we would amount to de novo is, the state court whether cedent: by the AEDPA. proscribed have held is on decision, objectively and evaluated Thus, at appropriate inquiry Id. this merits, outcome that resulted an juncture appli is whether the state court’s so, If justified. reasonably be cannot Supreme precedent Court cation granted. should be petition then the Williams, objectively unreasonable. 1521; Matteo, 171 F.3d at 889-90. at S.Ct. Matteo, believe our 171 F.3d at 891. We words, habeas court In other federal “[t]he in accord with the in Matteo is opinion grant petition not unless should decision Williams. Court’s Supreme decision, objectively evaluated Indeed, state of the focuses Justice one merits, in an that the on the resulted outcome was the fact opinion O’Connor’s justified under applica- reasonably that cannot be and “unreasonable “contrary to” precedent.” Mat existing Supreme inde- Court should be accorded tion of’ clauses teo, Williams, apply will 171 F.3d at 890. We meaning. S.Ct. pendent process due also makes of review to Werts’ opinion Matteo standard 1519. Our of counsel claims and ineffective assistance this distinction. seriatim. analysis our To commence first “contrary provision, to” we must A. pre Court identify applicable Supreme whether it resolves cedent and determine In of the AEDPA’s stan light Matteo, 171 F.3d at petitioner’s claim. review, find that Werts is not dard of we entitle prove that to explained 888. We only relief on the to federal habeas entitled “contrary relief under the ment to habeas i.e., claim, that the due reviewable provision: to” as a reference to Moore petitioner for the sufficient closing argument so during “marked man” interpretation merely

show deny him a fair jury as to prejudiced plau- is more Supreme precedent essence, claim sounds trial. court’s; rather, the sible than the state misconduct. prosecutorial that Su- petitioner must demonstrate relief held that federal habeas Court has precedent requires preme Court “prosecutorial may granted be when pre- This standard contrary outcome. trial with may ‘so infec[t] misconduct solely habeas relief granting cludes resulting convic as to make unfairness ” with a simple disagreement the basis of Greer process.’ tion a denial of due interpretation reasonable state court 3102, 756, 765, Miller, 107 S.Ct. 483 U.S. precedent. the applicable (1987) Donnelly v. (quoting 97 L.Ed.2d 618 637, 643, 94 416 S.Ct. DeChristoforo, court U.S. If we the state Id. determine (1974)). 1868, 431 Court 40 L.Ed.2d “contrary applicable to” the decision is not to have process that for due opined then we are further precedent, offended, miscon prosecutorial “the step in been to advance to the second required significance to must be ‘of sufficient the state court deci- duct analysis —whether 198 violation, right required a constitutional we are in the denial of the defendant’s

result ” (citing trial.’ Id. United States to a fair in to examine those remarks the context 667, 676, Bagley, 473 105 S.Ct. v. U.S. Ramseur, at the whole trial. 983 F.2d (1985) 3375, (quoting 87 L.Ed.2d 481 Unit Greer, 766, (citing 483 U.S. at 107 1239 97, 108, Agurs, ed v. 427 U.S. 96 States 3102). The remarks must be suffi S.Ct. (1976))). 2392, S.Ct. 49 L.Ed.2d 342 See prejudicial in the context of the ciently Beyer, also Ramseur v. 983 F.2d petitioner’s entire trial to violate a due Cir.1992) (our (3d prose 1239 review of a Greer, 766, 107 process rights. 483 U.S. at in a in a cutor’s conduct state trial federal Donnelly v. (citing S.Ct. 3102 DeChristofo proceeding limited to determin habeas 1868). ro, at 94 U.S. S.Ct. “ ing whether the conduct ‘so say the trial with unfairness as to cannot infect[ed] We resulting make the conviction denial of during closing “marked man” comments ” Greer, 483 at process.’ (quoting due U.S. argument sufficiently prejudicial were 3102)). 765, 107 This determination S.Ct. of the entire trial to violate the context will, times, require us to draw a fine court, rights. Werts’ due The trial ordinary distinguishing between motions, line — in denying post-trial re- Werts’ “ hand, error on one ‘that sort of jected prosecutorial misconduct ar- to a egregious misconduct which amounts gument that the “marked man” comments process’” denial of constitutional due prejudiced jury’s view of him. While Ramseur, the other hand. 983 F.2d at the trial made clear it not did (quoting Perry ex rel. United States prosecutor, condone the remarks of the (3d Mulligan, F.2d Cir. nonetheless found that those remarks were 1976)). motivated, part, by at least in the conduct and statements of defense counsel his evaluating whether re closing jury.16 Viewing marks of the rise to the level of statement closing liquor 16. Defense stated: counsel the amount of he had consumed that day, peo- and the fact that he said that the Now, day later on that he [Moore] ple who were in the car he had never seen statement, supposed given to have a second before in his life.... get and we it was kind of difficult submit statement, closing In his re- witnesses, out of the Commonwealth's Mr. sponded: Dougherty, Moore and also Detective as to person cooperates prosecution If a in the what occurred in the second statement be- he le- is entitled to recommendation of cause at the second statement is some [sic] Now, niency, something agreed and that we is all to. perhaps hours later and we submit after signed is made of the fact that he Mr. Moore had time to recollect some- or go his own hail and was allowed to home. body something had said to him or whatev- Tyrone Common sense. Moore was in the er, he said [in statement] second with Detention Center other individuals. passenger’s man who was seated on the Tyrone Now if going Moore had indicated he was Johnson, side of the car was James and he testify against him and sent back to picked photograph. out his the Detention Center with indi- these other viduals, he would be sent back a marked Now, though we submit when Mr. Moore Tyrone man. We do not want to have took the stand because of what had been up hanging top Moore wind from of a plea, said at the lime he entered the be- sign cell. So we let him own bail he so out, why cause of fact he knew he was leave, could he so would not be a marked changed get his bail had been so he could Center, man in the Detention and he money, putting out without out a Federal up every up showed time. He showed he, lifted, Detainer had been testified, he knew called, every this courtroom time he was say something against he had to and he came in and testified in this case. [indicating the man who is seated here Tyrone testify, You heard Moore and he defendant], who he described as the defen- agreed testify pled said that he and he testify dant ... Mr. Moore knew he had to guilty, something but there is much more in a manner to frame Mr. in [sic] he said. though probably even we submit he did police He said that he called the when he looking know who was seated in that car in view of found out that were for him

199 11, Thus, in light, analyzing in this the 105 S.Ct. 1038. the remarks prosecutor’s the prosecutor’s that the statements of the remarks on court concluded effect the trial, error. reversible Com- courts will consider did not constitute outcome 1859, 1860, Werts, 1862 response” reply” v. Nos. the “invited or “invited monwealth (Nov. 1976) 13, 1863, rule, i.e., *4 slip op. at whether “defense counsel’s com and ” J.). (Bonavitacola, review of ‘clearly reply.’ On direct ments invited the Id. conviction, Pennsylvania States, the Lawn v. 355 (quoting Werts’ state United U.S. 339, 15, 311, due Supreme found Werts’ 359-60 n. 78 2 L.Ed.2d Court S.Ct. (1958)).17 Thus, warrant- claim without merit and not “the must to be 321 Court con 226 any 483 Pa. at & the effect ing probable prosecutor’s discussion. sider the 2, n. 2. A.2d at response jury’s ability n. 1317 & would have on the 12, judge fairly.” the evidence Id. at the appellees argue analysis requires 105 S.Ct. 1038. This the in “marked man” remarks prosecutor’s reviewing weigh only court to not the im in made direct re closing statement were remarks, pact prosecutor’s the but also sponse argument to the of defense counsel to consider defense counsel’s statement. involved implicated had others Moore If the “in prosecutor’s Id. comments were agreed to in the crime and had indeed vited,” no further required and went than in his own “frame” order to obtain scale,” “right the such remarks would prosecutor bail. While the release on overturning not warrant a conviction. Id. responsibility defense counsel share 12-13, 105 at S.Ct. jury prop within arguments confine limits, Young, Supreme v. occasionally, during the heat of United States er prose that are found that the remarks of the argument, counsel make remarks Court cutor, testimony although by motivated defense coun supported by which closing argument, improper were may prejudicial are or be defendant. sel’s 16, 105 10, resulted in error. 470 U.S. at Young, 470 U.S. 8 & S.Ct. United States (1985) (cita error, however, L.Ed.2d 1 1038. This did not rise to 105 S.Ct. omitted). Where, trial, Supreme level of error as the plain tion a criminal found the fundamental fairness of argues improperly, defense counsel there Court by prose undermined respond the trial was not provoking remarks, kind, nor had any improper the trial does not take cutor’s judge action, justice.18 miscarriage criminal conviction will contributed to corrective Supreme rea prose holding, the basis of a Id. In so Court not be “overturned on alone, harm from any potential for the soned that standing cutor’s comments person prosecutor’s regarding be viewed in remark statements or conduct must context; of the defendant doing guilt can it be deter al belief as to only so mitigated by jury’s understanding conduct was mined whether de- responding affected the fairness of the trial.” Id. at recognition voluntarily cooperated them 17. The Court noted that its and he with response” and earlier "invited rule Lawn very told from the start. Before approval or cases should not be construed any promise that there would be of lenien- improper encouragement of such remarks. cy, that if he testified or before he was told Rather, be "whether the the focus should . pled guilty and testified we would recom- response,’ prosecutor’s 'invited taken con- leniency. cooperated mend He from the text, unfairly prejudiced the defendant.” Id. partic- very he knew what his start because at 105 S.Ct 1038. ipation and he went into the was in the case did, police and he told them what he station plain applied the error 18. happened. what He told and he told them Young of review in because defense standard that,he did not know the names of the them objection to the failed to raise an counsel thought he heard other individuals but he trial, but raised the remarks names that were said. some appeal. time on issue for the first comments in view prosecutor’s the the repeated attacks on viewed fense counsel’s by closing arguments coun- made prosecutor’s integrity and defense of the entire the evidence failed to adduced at argument sel’s counsel and the evidence both 17-18, Id. at 105 S.Ct. trial, establish crime. com- prosecutor’s we find that the further reasoned that and, 1038. The Court part, were invited for the most ments prosecutor’s context of the re- given the the required “right no further than to went attack from de- marks and the broadside charge, defense counsel’s the scale.” After counsel, jury the was not influenced fense explain why prosecutor was entitled duty to be fair and unbi- stray from its changed. This nec- Moore’s bail had been Indeed, at 1038. ased. Id. S.Ct. prison- out that a essarily pointing entailed Young the defendant in jury acquitted prosecution with the is cooperates er who faced, charge he which of the most serious favorably by looked his fellow upon not that the reinforced the Court’s conclusion the Commonwealth’s inmates and undermine prosecutor’s remarks did not to Moore’s release on bail was agreement jury’s ability to view the evidence inde- pris- response reasonable to the realities n. pendently fairly. Id. at 18 point, we do not find Up on life. to this S.Ct. 1038. im- prosecutor the comments of the to be proper. into The Court also took consideration involving prosecutor’s whether the remark think the over We opinion any sugges personal contained however, bounds, when he re stepped relying tion that he was on information not the Commonwealth did not marked jury which presented supported to the hanging from up want to have Moore wind charges against the defendant. Id. Although comment top of a cell. this Having concluded that the 105 S.Ct. 1038. error, in the improper and resulted any such improper remarks did not contain closing the entire state overall context of but, rather, suggestion, supported were evidence, record we do not find ments and testimony, the the defendant’s own Court unfairly this one sentence was sufficient opined jury'understood comment most, jury. single At prejudice the prosecu for what it was—a defense of the an ordi wayward statement amounts to integrity. Finally, Id. tor’s decision and error, nary trial which is insufficient to contained the Court noted that record The process. constitute a denial of due overwhelming evidence of the defendant’s stated that threat prosecutor never guilt any lingering which eliminated doubt or that would have ened Moore the prosecutor’s prejudiced remarks if he Moore killed was sent back 20, 105 jury. Id. at 1038. S.Ct. Detention Center. Young, prose- Like the further find that not over- We while appears

cutor this case made have whelming, the state record contains response man” comments in “marked fur- ample guilt, evidence of Werts’ which closing to defense counsel’s statement. mitigates possibility jury ther that the reference to Moore as a im- prejudiced response “marked man” was direct jury had before it argument proper bail comment. defense counsel’s that his testimony, and trial changed get out of Werts’ had been so could confession Moore, jail testimony as the a co-defen- posting exchange without a bond in for well dant, testifying against Having Spe- and several other witnesses.19 Werts. .re- rejected disagree rejected. We with The District Court the dissent's dismissal of testimony allegation Moore's as insufficient to overcome Werts’ that the confession defense, presence” voluntary relief and a "mere as well as his as a basis habeas pursued appeal. "coerced.” has not this issue on reference to confession as Werts Thus, latter, As to the this issue was on direct the dissent’s referral to the statement as raised weigh appeal Pennsylvania Supreme inappropriate "coerced” is and cannot and Van drove to Detective effect Werts Werts are other witnesses cifically, the McMillan, De- and that shooting, house after the Van Detective Dougherty, stayed overnight. house It de Verrugghe. Werts’ tective logic suggest paid that Werts some fies perti- in testified Dougherty Detective just to him home because he was one drive fresh brush that he part observed nent drunk when the white Ford Falcon was his upon and back on Werts’ chest burns parked outside residence the still Werts’: Based on station. police arrival at the shooting. day after the Detective Ver testimony, jury a Dougherty’s Detective testimony rugghe’s credibility lends injuries certainly find Werts’ could to his opposed Werts’ confession as later ex- you what would consistent with were participation denial at trial of his individual is when a shirtless pect to see robbery. by two-foot through a two-foot pulled (when apprehended Werts opening, Moreover, charge, final jury its closet), injuries opposed above the jurors that their trial court instructed the beating. Dough- Detective in a sustained exclusively finding factual should be based gave that he Werts his erty also stated during trial presented on the evidence indicated Miranda warnings and Werts of the facts and that their determination Detective rights. understood his that he expressions should not be controlled during the interview Dougherty testified or comments on the facts opinion respon- normal and appeared that Werts The trial court further in- prosecutor. sive; be under the appear he did not jurors they had a structed the while alcohol. Detective drugs influence of or counsel, arguments to consider the duty did further stated Dougherty right reject any had the or all of any physical him ail- complain to not arguments. Considering prose- these treatment and refused medical ments remark in the context of improper cutor’s if wanted it. Detective when asked trial, including argument entire into the incrimi- Dougherty read evidence jury charge, we defense counsel and the Werts; he took from nating statement improper re- say prosecutor’s cannot sig- page of each contained Werts’ bottom to violate sufficiently prejudicial mark was nature. Therefore, the process rights. due Werts’ tes- portion of Detective McMillan’s of the state trial decisions impact timony significant which had appellate comport courts Pennsylvania testimony credibility of trial Werts’ Supreme clearly with the established (and his repudiation guilt) state- do not involve an precedent and Court effect that the events on the ments to the application of objectively unreasonable transpire did not morning of Werts’ arrest adjudica- law. the state court such Since described them. Detective as Werts to, contrary nor an unrea- tion is neither punched testified that no one or McMillan application sonable Werts, face, in his sprayed kicked or mace to federal Werts is not entitled precedent, gun. a shot or hit him the mouth with claim. his due habeas relief on addition, in- guilt Werts’ could also be Detective McMillan’s testimo- ferred from B. hiding ny that had been found from space crawl a closet. police above of Werts’ turn now to the merits We counsel claim. ineffective assistance of testimo Finally, Verrugghe’s Detective to which prosecutorial in his The remarks ny Werts’ statement corroborates preserve Dougherty to the counsel failed confession to Detective and/or prosecutor nor defense counsel Neither the decision here. As to Moore’s testimo- in our ny, significant clarify point. that Moore was never it is chose to asleep. awake or asked whether Werts was ap- form the basis of a mistrial. Id. The court’s decision appeal, which (1) pears predicated to be on three bases: ineffective claim and which are assistance (1) defaulted, prosecutor’s include: in the remarks could be con- procedurally statement, proper response to defense opening that a strued as argument (citing counsel’s Commonwealth putting life in his co-defendant was 85, 91, Floyd, 506 Pa. 484 A.2d by testifying, and in hands (2) (1984)); (2) legitimate the drew that closing argument, Detective (cit- inferences from evidence of record killer, thought McMillan was a Tucker, 191, ing Commonwealth v. 461 Pa. (3) people neighborhood in Werts’ (3) 201, 704, (1975)); A.2d 335 709 commit crimes for no reason. The Penn- to highlight defense counsel’s decision not sylvania Superior Court reviewed each of through request these remarks a for a these statements and concluded coun- curative was a instruction reasonable failing object was not ineffective for to sel strategy and would not be ineffec- deemed prosecutor. remarks of the these hindsight tive in v. (citing Commonwealth regard made With to the statement dur- Anderson, 275, 501 Pa. A.2d 208 461 ing opening which (1983)). that a possibility referred co-defen- jeopardized personal safety dant had superior At the time the court decision, by agreeing testify government, for the controlling issued its case superior court found that governing defense ineffectiveness claims in Penn counsel had exercised sylvania reasonable was Commonwealth ex rel. Wash 599, strategy failing ington Maroney, to this com- v. 427 Pa. 235 A.2d (1967), ment —he intended to refute the statement 349 following which set forth the with evidence and did not want to draw test: by objecting

attention to the comment inquiry our ceases counsel’s assis- it. The court therefore declined to find constitutionally tance is deemed effec- “ineffectiveness based on a tactical deci- tive once we are able to conclude that sion which had a designed reasonable basis particular course chosen counsel to serve defendant’s interests.” Com- designed had some reasonable basis Werts, Phil.1983, monwealth v. No. 2762 effectuate his client’s interests. 1985) 2, 2 slip op. (Aug. (citing at Com- test is not whether other alternatives Anderson, 275, monwealth v. 501 Pa. 461 reasonable, were employing more (1983)). A.2d 208 hindsight evaluation of the record. Al- though weighing the alternatives we remaining forming comments must, tips the balance in favor of a basis of Werts’ ineffectiveness claim were finding of effective assistance as soon as collectively by superior discussed it is determined that trial counsel’s deci- First, court. the superior court noted that any sions had reasonable basis. completion at the clos- ing argument, 604-05, defense counsel raised an 427 Pa. at 235 A.2d 352-53. The objection at sidebar to the may remarks and not substitute its determination prosecutori- moved for mistrial based on as to what course of action would have al misconduct which was denied. Id. The been promoting more effective in the de- superior court further observed de- fendant’s interests for of counsel. Roundtree, 241, fense counsel testified at the PCHA hear- Commonwealth v. 469 Pa. 249, 1359, (1976). ing Thus, that he did not seek curative instruc- 364 A.2d if 1363 tions because he was concerned with the the court determines that “counsel made impact highlighting choice, these comments. an informed which at the time the record, Upon Id. a review of the supe- reasonably decision was made could have rior court concluded that the advancing protect- been considered as interests,” did ing remarks not warrant the declaration of counsel [defendant’s]

203 to the ineffectiveness standard (citing Id. identical ineffective. will not be deemed Hill, 477, 482, 450 Pa. v. Supreme enunciated the United States Commonwealth (1973)). 587, pre- Counsel is A.2d 590 301 Washington, v. Strickland 466 the defendant competent and sumed to be 668, 2052, 104 80 L.Ed.2d 674 U.S. S.Ct. otherwise. proving has burden (1984). Pierce, 161-62, Pa. at A.2d 434, Carpenter, 555 Pa. Commonwealth at 976-77. (1999) (citation omitted); 725 A.2d at 427 Pa. at 235 A.2d Washington, Strickland, In the United Moreover, counsel cannot be deemed States Court enunciated the test failing to raise a meritless ineffective for ineffective assistance of counsel under (citation 725 A.2d Carpenter, claim. the United States Constitution. This test omitted). First, components: has the defendant two Pennsylvania Su performance must show that counsel’s fell reviewed the ineffectiveness preme Court objective below an standard of reasonable Washington in to deter set forth standard ness, 688, and, 466 at 104 S.Ct. 2052 U.S. included mine that standard also whether second, must he the defendant show requirement. See Common prejudice actually prejudiced by counsel’s deficient Pierce, 153, Pa. 527 A.2d 973 wealth v. 515 687, performance. Id. at 104 S.Ct. 2052. (1987). although that The court concluded A an asserting defendant ineffectiveness equating could be read as Washington in prove claim must both elements order with the unreasonableness prejudice conclude that the convic for the court to vitiating performance,20 thereby counsel’s tion is unreliable. Id. showing prejudice, for actual the need language Washington was inconsistent the Supreme proffered Court has supreme law as the with the following edification of the reasonableness 160, Pierce, Pa. at actually applied it. 515 component: Historically, Pennsylva 527 A.2d at 976. that clearly nia has demonstrated caselaw attorney perfor- A fair assessment inef supreme

the court measured counsel every effort be requires mance (1) by components: two fectiveness distorting to eliminate the effects made if it of counsel’s conduct is reasonableness hindsight, to reconstruct the circum- un that there is merit to the determined conduct, challenged of counsel’s stances (2) claim and how the ineffective derlying the conduct from coun- and to evaluate Id., the defendant. 515 prejudiced ness at the time. Because perspective sel’s 158-59, at 975.21 To the Pa. at 527 A.2d making of the difficulties inherent interpreted Washington extent had been evaluation, indulge strong a court must from past prejudice decisions to exclude that counsel’s conduct falls presumption claims, the analysis of ineffectiveness range pro- of reasonable within the wide overruled Pennsylvania assistance; is, the defen- fessional incorrect Washington and those decisions presumption overcome the dant must Pa. at ly interpreting Washington. 515 circumstances, that, the chal- under the 160-61, fur 527 A.2d at 976. The court “might action be considered lenged Pennsylvania stan opined ther strategy.” sound trial judging ineffectiveness claims was dard showing preju actual any requirement did not have "reasonable If counsel 21. 20. did, prior superior court's deci dice existed acting basis for in the manner he See, appeal. e.g., PCHA Com sion in Werts' compro- prejudiced his client because counsel 361-62, Clemmons, 356, v. 505 Pa. monwealth right to effec- mised his client's constitutional 955, (1984); Commonwealth 479 A.2d 957-58 goes. representation,” argument tive so the 314, 329, 604, A.2d 612 Vogel, Pa. Pierce, 160, at 527 A.2d at 976. 515 Pa. denied, (1983), S.Ct. cert. 465 U.S. (1984). 80 L.Ed.2d 133 (citation case, find that the facts of this Id. at 104 S.Ct. 2052 omit We under ted). Pennsylvania Superior Court’s deter- Thus, concluded that when the court mination that trial counsel rendered effec- claim, deciding an ineffectiveness the rea tive assistance was not an unreasonable sonableness of counsel’s conduct must be application of Strickland. Counsel’s fail- particu judged light of the facts object remark in ure lar case at the time the conduct occurred. opening that Moore was tak- statement 690, 104 at 2052. Id. S.Ct. ing by testifying his life in his hands Turning prejudice compo government on reasonable was based nent, preju the Court elaborated that for strategy explained defense established, dice to be defendant “[t]he hearing. counsel PCHA There prob must show there is a reasonable counsel that he did not testified that, ability unprofession but for counsel’s comment because he did errors, proceeding al the result of the not want to draw attention to continu- ously objecting, thought A that he the state- would have been different. reasonable ways,” ment “cut both and because he probability probability sufficient to thought the statement would “backfire” undermine in the outcome.” confidence against because defense 694, 104 Id. at S.Ct. going present

counsel “knew [he was] evidence that [the Moore] Our determination of whether the really guy had a deal and that this was in appellate denying state courts erred in expla- never fear for his life.” Counsel’s Werts’ ineffective assistance of counsel object nation for his failure to indicates requires claim to us review the state employed that he what he believed to be application Supreme pre courts’ Court at the strategy sound time. More- Here, particular cedent to a set of facts. over, any presented legal Werts has not the state did appellate apply courts not authority any or in pointed to evidence that Supreme rule of law contradicts the pre- record which would overcome the holding According Court’s in Strickland. sumption performance counsel’s con- ly, we find that the state appellate court’s Thus, strategy. stituted sound trial we contrary decision not was to established judgment Pennsylva- hold that the of the Supreme precedent. Court nia Superior Court did not result an reasonably justi- outcome that cannot be inqui- This conclusion does not end our Accordingly, fied under however, Strickland. Werts ry, analyze for we must also is not entitled to on his claim habeas relief Werts’ ineffectiveness claim under the “un- failing of counsel ineffectiveness for to ob- application provision reasonable of’ of sec- ject prosecutor’s to the remark in his 2254(d)(1). tion provision, Under that opening regarding safety.22 Moore’s appropriate inquiry is whether Penn- sylvania application courts’ of Strickland Pennsylvania Superior Court fur- to objec- Werts’ ineffectiveness claim was ther held that was not denied effec- Werts unreasonable, i.e., tively the state court regard tive assistance of counsel with to decision, objectively evaluated and on the object defense counsel’s to to failure cer- merits, resulted in an that cannot outcome tain prosecutor during remarks of the justified reasonably be under closing argument.23 objectively Strickland. After eval- effective, finding Pennsylva- 22. Because we have concluded that Werts has 23. counsel Superior part proved nia Court relied in on the fact component not the reasonableness un- object Strickland, that defense counsel did and move for preju- der we need not address the prosecutor's a mistrial at the end of the clos- Indeed, component. Pennsylvania dice ing prosecutor's allegedly as to all of the Superior prejudice Court did not address the note, however, improper remarks. We component analysis in its and thus we do not objected defense counsel to the motion for compelled feel to do so here. prosecutorial mistrial on the basis of miscon- crime, trying to decide on a Pennsylvania day of the Su- uating the merits - place we are convinced to rob. We note that there was judgment, perior Court in an argument resulted never an made to the state the court’s decision justified reasonably racially that can be courts that this remark was moti- outcome re- prosecutor’s jurors. Strickland. vated and intended to inflame under thought McMillan Indeed, that Detective argued mark Werts the state collater- response a killer was in direct al that this remark amounted proceedings Werts closing statement defense counsel’s improper "personal opinion to to predisposi- a certain that the detective had casually believed he decided to and towards concerning the case participate robbery tion with his co- Werts, or not McMillan was and whether conspirators. Appellant, See Brief for Su- If the re- being. for his well perior Pennsylvania, concerned No. improper, 16; coun- themselves are not Appellant marks 2762*PHL at Petition of for to failing be held ineffective Appeal Pennsylvania sel cannot for to Allowance Here, Court, objective them. object to at 13. Our re- thought McMillan that Detective superior remark of the record and the court’s view invited reply was a killer was an no basis for federal habeas decision reveals counsel’s statement which merely defense the prosecutor relief. We find required “right than went no further attempting point out reasonable infer- 12-13, at Young, scale.” 470 U.S. at trial. ences from the evidence presented such remark was Accordingly, Accordingly, S.Ct. remarks cannot claim and thus Werts improper improper perfor- not were not and counsel’s faffing object counsel ineffectiveness for inadequate mance cannot be deemed to his remark. faffing object to the remarks. was ineffec- also claims counsel Moreover, defense counsel testified following faffing

tive for that he hearing the PCHA did file prosecutor: remark of the curative instruc- timely objection or seek in May that it was 6th Moore testified reasons, con- including tions for various his they went—he was at evening, and impact highlighting over the cern they came to the drinking home and In counsel stated regard, remarks. this him up Butch came house and Jones that, in if he had made a opinion, even and Butch they and went outside Jones objection, giv- the court would have timely looking for a to rob. Bear place grant rather than en curative instructions mind, way people up are this is the mistrial, he was more his motion for a and doing They sitting are at home there. highlighting -with further these concerned nothing place decide to rob a harm done and the additional statements just blue. And Butch out of the clear Counsel’s decision not to the defendant. in the Tyrone Moore outside Jones'takes attention to the remarks cannot be to draw you place him “Do know a car asked strategy light trial deemed unreasonable there a Speak- to rob?” And he said is counsel of the facts of this case. Granted says easy over on Arizona Street also admitted he was too embarrassed says Now he was Werts is there. closing object during asleep. until the end. In- he could wait thought deed, support cited caselaw to appears counsel This remark motions and position post-trial in both his present- a fair comment on the evidence be trial, Pennsylvania Supreme to the his brief ed at which established Werts’ Nonetheless, trial errors do these at Moore’s house on the Court. accomplices were event, discrep- any we do not find this arising us. In duct from the "marked man” com- ancy superior decision to be of in the court's only. procedurally defaulted ment currently any here. before moment claim and therefore it is not 206 fairness

not rise to the level of ineffective assis fundamental that the Constitution e.g., Murray guarantees. See v. Car can not read the tran- tance of counsel. One rier, 478, 488, 2639, grave trial script having 477 U.S. 106 S.Ct. 91 of Werts’ without (1986) (finding inequity misgivings integrity L.Ed.2d 397 no about the of the ver- to bear I requiring petitioner Accordingly, the risk dict. think that it is clear in a attorney procedural denying error that results the district court erred in fact, performance long petition default so as counsel’s is Werts’ for habeas relief. constitutionally ineffective under district did not even consider Strickland,); Thompson, Coleman v. most claim. meritorious 722, 753, 2546, U.S. S.Ct. 115 L.Ed.2d I. (1991) (“Attorney ignorance or inad procedural, is not ‘cause’ [for

vertence agree my I with colleagues’ discussion of attorney peti because the is the default] the standard of deference which must be agent acting, failing tioner’s when or afforded under the Anti-Terrorism and act, in litigation, furtherance of the and the Penalty Effective Death Act of 1996 petitioner attorney must ‘bear the risk of (“AEDPA”). However, majority as the ”) error.’ notes, adjudicate the state courts did not Werts’ due claim on its merits. requires What Strickland Therefore, the deference we would normal performance objective counsel’s meet an ly prior adjudication afford a state ha- standard of We cannot reasonableness. is, extent, great beas review to a not impli here, say.that presented under the facts Taylor, cated here. See Williams counsel’s failure to was unreason U.S. 120 S.Ct. 146 L.Ed.2d 389 proved able. Werts has not either that the (2000), Superintendent, and Matteo v. SCI improper were remarks and therefore ob Albion, (3d Cir.)(en banc), 171 F.3d 877 jectionable or that the basis counsel’s — denied, —, cert. U.S. 120 S.Ct. object might failure to not be considered (1999). Moreover, 145 L.Ed.2d 62 hold, therefore, strategy. sound We extent that the state courts decided Werts’ Pennsylvania Superior that the Court’s de claim on collateral or direct review and termination that trial counsel rendered ef him, I against ruled think it is clear that fective assistance was not an unreasonable adjudication the state court is both “con application Accordingly, of Strickland.24 trary to an application [and] unreasonable Werts is not entitled to federal habeas of, law, clearly established federal ... as relief on his claim of counsel ineffective determined the Supreme Court the failing ness for prosecu the 2254(d)(1). § United States.” 28 U.S.C. tor’s remarks. notes, Although, majority as the correctly Supreme Court has cautioned that we V. judgments must review state court with above, For the reasons set forth we will care,” Williams, 1511, “utmost 120 S.Ct. affirm judgment of the District Court the Court emphasized has also that we are denying petition Werts’ for writ of habeas to afford rulings not erroneous state court corpus. such deference that we abandon our con obligation stitutional to ensure the funda McKEE, Judge, dissenting. Circuit mental fairness of verdicts obtained in proceedings. criminal I respectfully dissent. The less than overwhelming sum, evidence of guilt, directs federal [AEDPA] courts combined with persistent prosecutorial every to attend to judgment state-court misconduct, care, deny coalesced to Werts the with require utmost but it does not land, Again, 24. we have prejudice because determined Werts we need not reach the ele- prove prong has failed to the first of Strick- ment. of a we let him every top from the cell. So opinion them to defer sign con- his own bail so he could leave ...1 judge on the state-court reasonable If, carefully law. after tent of federal 144. App. at accepting weighing all the reasons notes, majority argued As the Werts a federal court is judgment, court’s state appeal prosecutor’s direct ... custody prisoner’s that a convinced him “marked man” comment denied Constitution, indepen- violates process due of law. That due process prevail. should judgment dent Pennsylva- claim was not addressed. The Williams, 120 S.Ct. at 1511. simply nia stated in a foot- Court trial court “in not in note that the did err the entire record A careful review of a mistrial on case, declaring grounds due required by Werts’ this as is made an claim, allegedly prejudicial F.2d Beyer, Ramseur v. process ” (3d Cir.1992), during his summation.... Com- remark 1215, clearly estab- Werts, 222, 226, v. 483 Pa. n. monwealth unjustified and that the lishes (1978). It from apparent 395 A.2d is seriously so undermined unethical conduct brief that submitted to the trial as to have of Werts’ fairness Pennsylvania Supreme that the re- process. in a denial of due resulted referring mark the Court was to was the confidence that undermine “[E]rrors “marked man” comment. adju fundamental fairness of the state court could not address this The PCRA certainly justify the issuance of dication it claim of error because had been raised Williams, 120 S.Ct. at the federal writ.” See, § appeal. on direct 19 P.S. 1180- reviewing the Quite frankly, after (1966).2 4(a)(3) Accordingly, my col- I not under simply entire record here do conclude, leagues properly exhaust- objectively one can have confi stand how that the remark denied ed contention what jury’s in this verdict. Given dence may him due and we review the process, trial, happened during course of portion merits of that of his due justice to let this ver miscarriage claim. dict stand. notes,, “in majority correctly also

As the II. the remarks of the evaluating whether a constitu- prosecutor rise to the level of “A MARKED MAN COMMENT” violation, required we are to exam- tional During closing ar- in the context of the ine those remarks gued: Ramseur, F.2d at 1239 trial.” whole 756, 765, Miller, 483 U.S.

Now, (citing if had indicated he Greer Tyrone Moore (1987)). him and 107 S.Ct. 97 L.Ed.2d 618 going testify against test, However, correctly stating after the Detention Center with sent back to individuals, the technical restric- my colleagues apply would be sent these other way as to tions of exhaustion such as a marked man. We do not want back process analysis re- hanging undermine the due Tyrone up have Moore wind bar, jail. it who had been in I think objection at side counsel on killed 1. In an defense Honor, referring alleged prosecutor very inflammatory. Your and I that the was was recently great a any justification that had received an incident there was do not think attorney publicity. Werts' told the deal of at all. it court: at N.T. 144. 12/2/75 at this time. I I would move for mistrial by my colleagues, this version of 2. As noted Attorney District made believe the Assistant repealed effective June the PCHA was inflammatory very comments that are obvi- PCRA, replaced by 42 Pa C.S.A. 1982 and that has ously directed at the Price sentence seq. §§ et amended 1988 and 1995. as highly publicized. Price was the one been page majority opinion at n. 11. Hunter was later See that was killed Kevin quired by they purport apply. majority suggests following the test that it is the portion closing: trial” of defense counsel’s The “context the whole is lost. Accordingly, imperative Now, it is to examine later that day he was [Moore] trial in supposed given the record some detail. to have a second state- ment, and we submit it kind trial court concluded that these re- The get difficult to out of the Common- part by marks were motivated in conduct witnesses, wealth’s Mr. Moore and also of defense in his statements counsel Dougherty, what Detective as to oc- closing jury, statement to the and the ma- curred in the second statement because jority agrees. majority’s attempt The at [sic] the second statement is some it transgression sustain concedes perhaps hours later and we submit after bounds,” “overstepped Maj. Op. at [the] Mr. Moore had time to recollect or in part upon majority’s is based somebody something had said to him or conclusion that single wayward “[t]his whatever, he said [in second state- ordinary statement amounts to an the man ment] who was seated on the error, which insufficient to constitute passenger’s side of the car was James process.” My denial of due colleagues em- Johnson, picked and he out photo- that, phasize prosecutor “[t]he never stat- graph. ed that Werts or that threatened Moore would if have Moore killed he was Now, though we submit when Mr. sent back to the detention center.” Id. at Moore took the stand of what because Indeed, I agree prosecutor that the had been said the time he entered the did not specifically argue that Werts plea, because of the fact why he knew he Moore, threatened or Werts would out, changed his bail had been so he have Moore killed if Moore was sent back get could out putting money, without out However, to the Detention Center. lifted, a Federal Detainer had been he sugges- didn’t have to. Subtle he, testified, say knew he he had to speak just tion can loudly as the kind of something against the man who is seat- precise utterance majority that the seems defendant), ed here (indicating the who require as a precedent condition to a he described as ... the defendant Mr. process. denial of due Moore knew he in a testify had man- skillfully placed the upon page dots ner to Mr. frame Werts in even [sic] imagination jurors and allowed the though we submit probably did not Moreover, to connect them. as I will dis- know who was seated in that car in view cuss, this remark can not be dismissed as a liquor of the amount of he had consumed “single wayward statement” without re- day, and the fact that he said that writing transcript ignoring people who were in the car he had fabric of single this entire trial. The state- never seen before in life.... ment was but of many one threads that 198-99, Maj. Op. at n. 16. comprise that fabric. I nothing improper see about argu- ment, majority also notes that and I do “[w]hile not understand how it trial court made clear that it did not possibly con- could invite prose- or license the done the prosecutor, remarks of the cutor’s unethical conduct. There was nonetheless found that those during remarks were some discussion testimony Moore’s motivated, at in part, by least the conduct about whether he given had a second and statements of defense counsel in his purportedly statement wherein he identi- closing Maj. statement to jury.” Op. the fied per- someone other than Werts as the at But “opening 198. what is the passenger salvo” son the front seat of the car. my was, course, colleagues find so offensive as to This before Werts testified justify misconduct? The and conceded that he was in the car. It Furthermore, I Myers. Mr. Jack would defense coun- appropriate for clearly iden- at this time that Mr. prior Moore about his make known question sel to Moore, than Werts. your other 1975 before of someone October tification closing honor, nothing his mur- plea guilty counsel said entered a Defense the door to opened generally conspiracy. der that Moore would insinuation unsupported guilty plea, In return for his the Com- in the if he remained housed harmed be agreed that it would recom- monwealth testify agreeing after Detention Center leniency mend serious consideration for against Werts. if the codefendants. against he testified nothing more than counsel did Defense N.T. 11/26/75 up-to his end living that Moore was argue examination, During cross defense coun- bargain prosecution, of his with questioned govern- Moore about the sel released getting included that his deal to reduce his ment’s efforts bail have Moreover, the risk of custody. given from his lifted so that he could be detainer a obviously present whenever flight that is Id. at 79-80. A side bar confer- released. custody, suspect is released from murder explain occurred to some of the con- ence (and suggests experience common sense the amount of Moore’s bail. fusion about confirms) prosecution that the could sim- During that conference the sepa- arrange to have Moore housed ply stated: in this rately any from of the defendants only thing, him. a federal detain- merely trying protect if it “the he had case charge er on him for a Federal court. necessary arrange his release It was not I charge I not know what the was. and allow him to return to do to the street what he was convicted of. conspir- do not know neighborhood the same where However, know, All I he had a detainer in Federal presumably ators had friends. got detainer lifted.” speculate about the court and we we do not need to arranging for commonwealth’s reasons you get when did MR. CHAPPELLE: release, though prosecu- even Moore’s the detainer lifted? ju- certainly invited the tion’s insinuation signed his MR. Before he MARGOLIN: speculate. rors get bail to him out. own majority’s concern with de- Despite Id. at 82. argument that Moore’s deal fense counsel’s 23, 1975, changed Moore On October jail, the record getting included out of charges guilty plea and entered plea of the deal. part that that was establishes robbery/homicide. He related to this Yet, govern- than concede that the rather out of the Detention Center walked lifting his deal with Moore included ment’s aforementioned day. Following next detainer, to ex- prosecutor attempted conference, counsel used defense side bar by arguing release plain Moore’s Moore’s transcript portion necessary precaution because was a examine colloquy to cross change plea him in testimony against placed attempt to establish bias. That him in an the rec- danger. A closer examination of testimony follows: was as just unfounded the ma- ord illustrates how Q: anyone any promises made now has doc- jority’s response” use of the “invited your in return for any agreement or following exchange occurred trine is. The so, if I plea, and want entering guilty jury: presence the trial in the during you to tell me. time, At MR. MARGOLIN: this Tyrone record, calls Atlee Commonwealth ... for the MR. MARGOLIN: Moore. understanding between there is an court, the Commonwealth Mr. defense and required by rules of

As case, counsel, I make that statement and will represented by Moore is here men; against young the record and in return in this case other for defen- 1, pleading guilty, number is that correct? dant’s 2, truthfully testifying against number yes. A: codefendants, four of them in this added). (emphasis Id. at 93-94 case, the at the sen- Commonwealth will Thus, tencing proceeding any as to this defendant if there was truth whatsoever leniency in your suggestion recommend Honor’s that Moore was a sentencing.... may up hanging “marked man” who end from against his cell because he testified Secondly, we will recommend that the Werts, prosecutor every opportu- had permitted sign be to his own defendant nity explore during that Moore’s testi- may bail at this time so that he be mony response to defense counsel’s custody. released from suggestion upon plea of bias based added). at 95-6 (emphasis N.T. 11/26/75 at- agreement. did not The detainer had to be lifted before Moore any to elicit information Mr. tempt from custody” could released from and the “be justify lifting Moore to the detainer other happen. Commonwealth caused that testimony than that it Moore’s was done simple; part Pure and his release was cooperation. in return for his retro- It quid pro quo. cautionary was not a spect, omission was a him protect measure to from retribution. pose questions wise one. Rather than Moreover, impor- and what is far more may simply Moore that have reinforced tant, it that is clear Moore understood that promised, what Moore was lifted in detainer was return for his suggestive sleight was able to use of hand cooperation. Moore testified that he had get jury thinking that Moore 7,May been incarcerated from 1975 to safety. prosecu- released for his own October 1975 but that he was able to worry tor did not have to about what prison day walk out of one changing after might say Moore if fur- anything asked plea. his He understood that the Com- lifted, being ther about the detainer release, offering monwealth was as well suggestive image could use the as a leniency, recommendation of in return retaliation, evidence, instead for testimony. Id. at 98. Moore portray as a prosecu- killer. The responded as follows when questioned tor’s decision is now vindicated. to-We about his release: day join rationalizing the state courts in Q: someone had steps taken to have away prosecutor’s totally unjustified lifted; the detainer correct? and prejudicial by ruling remarks A: as far Ias know. un- were somehow “invited.” That Q: your investigations with the dis- only tenable conclusion can be reached office, trict attorney’s any was there talk an application unreasonable both state about the being detainer lifted? entirely and federal law that is inconsis- yes. A: tent with this record. Q: part agreement was it with Clearly, had defense counsel not cross- DA’s the detainer be office lift- plea agree examined Moore about ed? ment, rendering counsel would have been yes.

A: ineffective assistance under the Sixth Q: along with recommending to the Amendment. See Commonwealth v. Ba judge you sign be able to your own ston, Pa.Super. A.2d bail; is that correct? (1976) (defense counsel ineffective for fail yes.... A: ing to prosecution cross-examine witness Q: That your plea agreement return about prosecution with for fa for you treatment); in this case and also testify vorable Commonwealth

211 (the Wilson, 489, jurors prosecutor) told the that he 619 A.2d 1063 and Pa.Super. 422 (1992) (reversible that thought trial court to defense counsel and the de error for govern really hoping fendant were for a conviction of not allow cross-examination expectation charge. reviewing on a lesser In this tit as to witness’ ment’s witness tat, Supreme for testi the reasoned that a treatment in return Court of favorable given leeway should more concluding prosecu prosecutor In that the be mony). by deny response Werts due when is “invited” defense remarks did tor’s no goes counsel’s remark this trial we than in the context of process further the scale.” Id. at necessary “right the horns of a is defense counsel on place 12-13, 105 above, Had counsel not S.Ct. 1038. As noted the Kafkaesque dilemma. here, prosecutor’s “right his stew remark here did not possible the bias explored scale;” of that the it kicked the scale over. have fallen short ardship would by the Amendment’s guaranteed Sixth Secondly, prosecutor’s transgression the However, made having counsel. right Young in suggest govern did not the (indeed required) inquiry appropriate an prosecution upon any ment’s was based release, of Moore’s into the circumstances information that was outside of the record. majority concludes that defense coun the merely exchange personal It was an of highly improp the prosecutor’s sel invited beliefs; triggered by tendering one the of prejudicial “reply.” er and That pros the other. is not so here. The remark did reasoning suggest is all the ecutor’s “marked man” fallacy The of record. It sug conduct all evidence outside the greater, prosecutor’s and the prosecu- gested that Moore had received threats egregious, the more because the argument something and that more than was dis tor here could have rebutted jury government closed to the caused the by simply omitting the “marked of bias and his de the tim- to have Moore’s bail lowered emphasizing man” comment and require any In tainer lifted. This does not ing cooperation. closing, Moore’s conjecture part. exactly on our It is what argue did that Moore vol- prosecutor jurors. police prosecutor with from the told the Even untarily cooperated start, jurors were cautioned that the any promise leniency. though before very attorneys’ arguments do not constitute evi go project did not have to further and He dence, imagine from the it is hard to how the smell dangling shadow of Moore prosecutor deft ignored to meet could be once the ceiling of his cell order jury into the box. ly of bias. tossed skunk argument Lastly, importantly, most majority perhaps denial of this com- The rests its Young noted that Supreme due claim in the Court ponent of Werts’ Young, United States v. guilt by was established large part upon the defendant’s 1038, virtually L.Ed.2d 1 uncontradicted 105 S.Ct. “substantial U.S. intent, (1985). However, intent in evidence” of his criminal the circumstances stated, Young differ dramatically only from the circum- was the real issue. Court remarks, Young, when viewed In “the stances of Werts’ trial. context, be to undermine any not] concluded that harm said [could of the trial and contribute to remark “was the fairness caused Id. miscarriage justice.” jury’s understanding mitigated certainly That not the case countering defense S.Ct. 1038. was guilt at here. The evidence of Werts’ repeated counsel’s attacks...” 470 U.S. “virtually uncon- there neither “substantial” nor 105 S.Ct. 1038. Defense counsel majority partially con- argued closing in his that not even the tradicted.” My colleagues much. state: “we guilty. client was cedes as prosecutor believed his overwhelming, further find that while not response, shared his ample contains evi- guilt, the state trial record personal belief about the defendant’s Moore, miti- guilt, rogation dence Werts’ which further identified Moore’s statement, gates possibility jury and was asked about Moore’s prejudiced by prosecutor’s improper identification of someone other than Maj. Op. majority comment.” at 200. The Werts. N.T. at 39-40. 12/1/75 “ample states this evidence” is com- note, my colleagues As Detective of and trial testi- prised “Werts’ confession Dougherty also testified about the fresh Moore, mony, testimony as well as the of burns” that he observed “brush on Werts co-defendant, witnesses,” and several other upon police the latter’s arrival at the sta- attempts and then to summarize the addi- colleagues tion. that a My jury conclude Maj. “ample Op. tional evidence.” at 200- injuries could find that those “were consis- 01. you expect tent with what would to see majority greatly The overstates pulled when a shirtless individual quantity of the evidence here. quality through by a two-foot opening, two-foot only guilt The evidence the defendant’s opposed injuries ... as in a sustained testimony, comes from Moore’s courtroom beating.” Maj. Op. Dougherty at 201. (which the defendant’s confession he in- normal, appeared also testified that Werts McMillan), by sists was coerced Detective “did not him complain any physical the denials Detective McMillan. ailments, and refused medical treatment seems, Although such at evidence first However, he wanted it.” Id. if when asked “ample,” totality blush examination of the Werts admitted that he had hid in a two- of the circumstances here makes it far less foot crawl space police when the came for impressive. say I will more about him (though he stated he came out under circumstances of Werts’ statement below. power police his own once him grabbed now, in For order to better assess the arm). N.T. at 152-3. Werts 12/1/75 quality of the evidence I against Werts will Dougherty testified that he did ask summary testimony set forth a of the upon arriving medical treatment at police each of the witnesses. headquarters, Dougherty but that refused get him treatment because Werts A. DETECTIVE DOUGHERTY sign wouldn’t a statement that had been prosecution The first called Detective Id. at 160-2. prepared. Dougherty. Dougherty is a homicide de- who initially generally, tective testified I separately will discuss below the issues giving description of the crime scene that arise from subse- explanation and an about processing quent vouching for the police testimony. it. N.T. at 35. He was subse- That vouching significance takes on added 11/26/75 quently recalled prosecution to de- because of discrepancies between tail surrounding the circumstances testimony the Werts’ about the circumstances taking explain of Werts’ statement and to interrogation, of his arrest and and the the chronology which the homicide detec- homicide detectives denials of coercion and keep tives when interviewing ques- abuse. For I simply now will note that if tioning suspect. N.T. at jury 133-4. doubted veracity police of the 11/28/75 gave He also testified that he Werts his officer’s denials precious there was little to Miranda warnings, and he testified only about convict Werts. The other evidence warnings. the circumstances of those against He that was introduced him came questions answered some alleged about his inter- from coconspirator, Altee Moore.3 My colleagues argue rejecting that Werts’ claim that cion or that the state courts erred in weigh clearly his confession was coerced “cannot that claim. That is not for us to deter- However, rejected by our here’’ Young, decision because was mine. under we must as- jury Maj. Op. the 200, and the state courts. sess Werts' claims in the context of the entire suggest jury n. 19. I do not that the record. The record contains a confession accepted purportedly police should have Werts’ claim of coer- wherein Werts told that he “clarify point. her would or salt MOORE B. ALTEE is not that defense significant isWhat was Al- next witness prosecution’s clarify point, but counsel chose not to accurately sum- majority tee Moore. prove failed to it. How- signifi- It is testimony. Moore’s marizes ever, decision again, here however, testimony cant, that Moore’s just as his inquire to not is vindicated saying that Werts could be summarized ask Moore about the terms decision not to with three other in the car present is vindicated. plea agreement when drove and Moore individuals that Werts agrees Moore speakeasy. the and did not speakeasy into the go

did not WRIGHT C. ISRAEL did, however, testify Moore drive the car. mentioned in the car that other individuals next called Israel prosecution The presence. in Werts’ robbing speakeasy speakeasy inside the at Wright who was testimony that the Moore’s accepting Even robbery. Wright’s testimo- the time of the robbery in others mentioned simply corroborated uncontested ny testimony of Moore’s presence, quality had been robbed speakeasy fact that the may it well not have overcome such that Bridgeman been shot and that Mr. had defense. Without presence” a “mere robbery. course of that N.T. during the more, entitled certainly would have testimony Wright’s at 112-121. 11/26/75 instruction. presence” to a “mere Werts against case nothing added Werts. Fields, 460 Pa. See Commonwealth (1975). only real differ- A.2d 745 D. OFFICER CARROL ADAMS Moore and testimony ence between is that Moore did testimony of Werts next witness was The Commonwealth’s asleep say that Werts was specifically not Adams. Adams Police Officer Carrol prior car to the rob- while he sat patrol wagon that emergency drove the say whether bery. Moore did Werts call police to a radio about responded asleep. was awake or Adams robbery speakeasy. at the Officer failure to majority Moore’s stresses the crime scene and what described also asleep in if was awake or specify Werts entering speakeasy, upon he saw that Moore’s rejection my position their gunshot vic- taking about he testified a mere testimony supported would have at 124. hospital. Id. Officer tim to the Pennsylvania under law. presence charge testimony nothing also added Adams’ my colleagues argue “[n]ei- Surprisingly, the case. counsel nor defense ther the clarify Werts was [whether chose to Maj. (emphasis n. 19 Op. at asleep].” SEGAL E. DR. ROBERT added). surprising because the I find this examiner, tes- Segal, medical Dr. Robert the burden of obviously has

prosecution generally, pathology tified about forensic how we can and I don’t understand proof, and, the details of his specifically, more a crucial clarify expect defense counsel N.T. at 3 of the victim. autopsy I prove. fails to 11/28/75 prosecution that the point worth his that no defense counsel submit ty has been undermined robbery/homi- of this conviction disposed weapons after the petition. that if the record contained cide. I submit in Werts' habeas the assertions Moreover, evidence, precious below, only there would be are there as I will note fair- suggest a denial of fundamental little to im- which I believe additional factors here question the conviction.

ness or cause one to The record contains more. an integrity conviction to pugn of this It includes an might otherwise be greater extent than even explanation which we must of that statement the case. integri- determining if the at least consider in testified about some abra The detective F. OFFICER JOHN O’ROURKE injuries that he ob possible sions and was called Police Officer John O’Rourke explained the defendant and served on specialist and was asked as firearms that, inflicted to the extent that were a .22 his examination of caliber bul- about all, they inflicted as a police were during taken from the victim fragment let drag from his trying result Werts 12-14. autopsy. Dr. Id. at Segal’s and subdue him. Id. at 61-3. hiding place, that, summary It from this is evident rather biz The detective also offered some far, testimony that incrimi- only thus testimony police that after subdued zare Moore, came from Mr. nated Werts (Detective him, he Werts and handcuffed nearly in- testimony was not Moore’s McMillan) ordered that the handcuffs be majority seems to con- criminating as the testify would that McMil removed. Werts places It the car clude. part lan had the handcuffs removed as speakeasy. Moore drove to and from the fight. N.T. at 157. an overture to 12/1/75 say participated any didn’t explained that he wanted the McMillan way. say didn’t even Werts was other He removed so that Werts would be handcuffs at n. 3 that testi- awake. As noted above point around the room and free to walk with the mony was not inconsistent de- shotgun where a was hidden. N.T. Pennsylva- under presence” fense of “mere specifically McMillan de at 83. 11/28/75 was awake. assuming nia law even Werts handcuffs re nied that he wanted the Fields, supra. See fight moved so that he could with Werts. “ T He testified that he told Werts did, you. rip your hit If I I’d wouldn’t McMILLAN G. DETECTIVE off, words to that Id. at affect[.]” head or next called Detective prosecution The threats, force or using and he denied McMillan who testified about Roseborough intimidation to coerce statement.4 Werts’ of his of the defendant. details arrest that uni- McMillan testified several H. DETECTIVE VERRUGGHE formed and other detectives went officers prosecution next called Detective The 1975. the defendant’s house June Verrugghe Arthur who about testified He described the circumstances their finding a white 1965 Ford Falcon outside of, for, apprehension search Werts He also of the defendant’s residence. tes- inside the house. He also described a that car on tified he searched June struggle with defendant could Id. at car that took the 1975. 128. The inju- or explained have some of the marks speakeasy to the had been perpetrators During ries that the defendant sustained. described as a white Ford Falcon. How- testimony, the detective was also ever, deny Werts didn’t that he was asked, happened?” “and then what Detec- notes, testimony, majority car. His as the responded tive McMillan as follows: “we him paid was that he someone else to drive house, proceeded to search the search for home because he was drunk. a weapon, during the search for the weapon My colleagues argue I several that Detective Ver clothing found articles testimony that reported rugghe’s that had been stolen.” N.T. the Ford Falcon objection parked at 21. A defense was was found outside house the Werts’ 11/28/75 day shooting very significant sustained. Defense counsel also moved for after the is mistrial, logic a properly suggest but that was denied because defies “[i]t immediately gave paid just because the trial court someone to drive him curative instruction. Id. at 23. home because he was drunk when the pounds. record establishes that the Detective tall, weighed was over six feet more than parked outside J. DEFENSE WITNESSES Ford Falcon was still white day after the shoot residence Werts’ jury The other witnesses that the heard Verrugghe’s testimony Detective ing. defendant, from included the who testified confession as credibility to Werts’ drunk, lends paid that he had someone to home, par denial ... of his him sitting to his later drive and that he was opposed passenger asleep the front seat when the robbery.” Maj. Op. at 30. ticipation robbed, speakeasy was and that he knew However, in this nothing there is record nothing of until robbery after it was (the one who was establish where Vann . signing over Werts admitted a statement car) Moreover, driving the lived. police prepared, po that the but said the It is not car was connected to homicide. it prepared upon lice based what others surprising all that that Vann did want already had told them. He said that he parked the car front of his own to have signed only result of the combined home, nothing suggest here to and there coercion, police effect of intimi force and home that he could not have driven Werts dation; and the heroin withdrawal he was home, or taken and then walked to his own undergoing. jury also heard from public transportation. family various members of the defendant’s who- testified about circumstances clear, I I do not for a minute am So his arrest. not suffi- suggest that the evidence here is Dougher- also said that Detective is. I clearly cient to convict It Werts. do him ty police welcomed station however, submit, that it is nowhere near as saying, “[y]ou already had some trouble majority suggests, compelling as the and did, McMillan he he is going with and what of the Commonwealth’s quality that nasty, ...” at get N.T. 12/1/1975 to our assessment of evidence is relevant “ said, I get and that McMillan until ‘[w]ait process regard, that Werts’ due claim. ” you police down at the when station[ ]’ testimony I that the location submit about being Werts was taken from his home for “defy logic” nearly of the car does as interrogation. Id. at testimony much as Detective McMillan’s The defense also called Detective handcuffs removed that he wanted Werts’ Dougherty testify its own witness to as (whom that McMillan believed to so Werts initially that had someone Moore identified killer) be a could wander around his bed- in being than the defendant as other point (presumably room and to where a that drove passenger front seat of the car loaded) that shotgun was hidden. To ex- robbery. to and from the N.T. at 12/1/75 tent, logic suggests McMillan’s testi- Finally, the defense called an ex- 38-40. mony Werts’ claim that corroborates pert testify impact about the of heroin However, I McMillan threatened him. in order to corroborate the de- withdrawal McMillan, below, and the other discuss the circum- testimony fendant’s about advantage had the of an police officers gave in which he his statement. stances Attorney vouching Assistant District testimony pain That and established honesty, integrity. and their a heroin discomfort that someone with would

habit the size of the defendant’s enduring been at the time Werts was have I. BRIDGEMAN WILLIE custody questioned by po- taken into lice. Finally, prosecution called Willie

Bridgeman, decedent’s brother. Thus, I am a to understand what at loss Bridgeman merely testified that his broth- other witnesses” in addition to the “several prior er had been alive to the time of the Moore, testimony of and Werts’ confession robbery. This fact was never conten- evi- overwhelming amount could such plant- that was negate dence as to the seed tion. added). (emphasis N.T. at 13 prosecutor’s jury’s in the mind ed 11/26/75 uninvited, unsubstanti- inappropriate, That from his cell. hanging of Mr. Moore image ated, comment is highly prejudicial However, man” comment if the “marked context of the trial that part also I here would only impropriety was the properly examined to consider must be question due agree process argument. Mr. Werts’ due My conclusion denial is a far closer call. of the trial” was has majority that “the fairness concludes that Werts .under- right challenge actions this comment mined and that waived his trial, justice[.]” object at miscarriage of trial counsel did not to a because “contributed it as a for a due is and was not included basis Young, 470 105 S.Ct. U.S. appeal. direct process denial Werts’ upon much more. based However, object failure to trial counsel’s claim of grounds was one of the for Werts’ III. of counsel the sub- ineffective assistance sequent petition. PCRA The PCRA THE OPENING PROSECUTOR’S ruled that ineffective assistance of STATEMENT coun- counsel claim was meritless because for not strategic sel had a sound reason sworn, being jury minutes of the Within objecting. During hearing that was held offered, any testimony had been before petition, trial counsel ex- on Werts’ PCRA counsel delivered days before defense por- that he did not to this plained closing supposedly “invited” prosecutor’s opening tion of the because misconduct, prosecution’s insinuation thought During his gave opening statement. danger putting that Moore was himself statement, jury: he told the opening it backfire. ways” “cut both and that would something interesting more [T]here N.T. at 38-9. Defense counsel See 4/29/82 Tyrone Moore is about this case. Atlee going explained “thought that he And Atlee one of the co-defendants. I against backfire him because knew we you how testify Moore will here tell they that going present to evidence were happened. planned this was what really guy had a deal and that this was it, Atlee And make no mistake about never in fear of his life.” Id. at 39. guilty to murder Tyrone pled Moore object agree I that counsel’s failure to generally.... strategy was rooted in sound that defeats Bar In accordance with the American portion of assis- that Werts’ ineffective relating However, to crimi- Association standards tance of claim. that counsel justice, agreed, nal the Commonwealth why did not explain does not trial counsel testimony, in return for Atlee Moore’s hands” comment as include the “life his that Honor be we would recommend His of denied part the circumstances which give Honor exercise and process appeal. lenient. His Werts due of law on direct leniency because inflam- Pennsylvania serious consideration to The courts evaluate obviously going put matory remarks in context with the entire Mr. Moore is just Strategy justifies as do.5 that by testifying. in his hands we life 331, Dennis, required by of Law 552 Pa. fairness the Due Process See Commonwealth 404, (1998) ("It by noting, study "a careful of the record in its A.2d is fundamental that, entirety prose- to evaluate disclosed no real merit to this conten- [the ‘in order whether added, improper, "[e]mphatically the comments were we must tion.” The court cutor’s] attorney always should bear in mind look to the context in which were district ’) great import, proper in a made” See also Commonwealth v. Dicker- role trial of such son, 102, 109-110, religiously refrain from unbe- 406 Pa. 176 A.2d 421 conduct (1962) (The coming responsible We evaluated the such a trust.... can- court noted that it attorneys strongly prosecutor’s urge upon too claim that the clos- not district defendant’s conduct.”) refraining ing argument the need for from such denied him the fundamental (and Therefore, not objecting waiving therefore we would have to consider the part prosecutor’s omission as of a Sixth opening Amendment to properly evaluate claim) justify does not the context including not of the “marked man” comment even if prosecutor’s opening as of Werts could not part the circum- show cause and prejudice to excuse the stances that denied omission process the due from the process can, due however, of claim. appeal. law on direct The remark show “cause” for not exhausting as inflammatory uncalled as the com- ponent process of his due claim. “marked man” See statement that was chal- Larkins, 153, Lines v. 208 F.3d lenged 166 n. 20 appeal on direct part as of due (3rd Cir.2000) (“a challenge successful process claim. the effectiveness of representa- counsel’s guilt was solely upon based vicar- tion on appeal direct under Strickland can liability ious and the law of conspiracy. establish the necessary cause excuse a exception With the of the denials of Detec- default”). procedural The “cause” is coun- McMillan, tive prosecutor’s unsupport- sel’s ineffectiveness not arguing the ed innuendo said much more about Werts’ proper of closing. context preju- involvement in this robbery/homicide than dice that he also must establish to excuse the evidence that presented from the ought default to be evident on this prosecutor’s witness stand. The opening Coleman, record. See 501 U.S. planted the idea that Moore’s life was in 640; Lines, S.Ct. 115 L.Ed.2d danger testify because he against dared 208 F.3d at 159. Werts alleges also suggestion just killer —Werts. lay That his statement was obtained as a result of beneath surface from the very begin- Detective McMillan’s coercion. That ning of the trial until the deto- claim, in light circumstances, of all the nated it with his unethical “marked man” can not lightly be prose- dismissed.7 Thus, closing. although agree I that trial handling cutor’s testimony McMillan’s counsel’s failure to opening yet part another web misconduct counsel, was not ineffective assistance I up adds to a process denial of due can agree that we are free to ignore the circumstances here. opening as part of our analysis process Werts’ due claim. That IV. is separate apart issue from the issue THE PROSECUTOR’S IMPROPER of competence of counsel. Failure in- FOR VOUCHING DETECTIVE clude the opening part as McMillan the due alleged violation on direct just appeal is surely as as above, ineffective As against noted the evidence the failure was strategic.6 Werts boiled down to testimony the of part Counsel’s failure to include it as Pennsylvania of his 7. The Supreme Court concluded appeal direct is all more the unreasonable that claim that Werts' was "confession the exchange because the sidebar that followed product physical of and mental coercion” was (the prosecutor's closing suggests the only on- waived appeal. direct Commonwealth v. anyone the-record reference fearing about for Werts, 483 Pa. at n. 395 A.2d 1316. safety) actually their that it was Werts who However, waived, to the extent that it was it was concerned threats. about At side bar is that Werts can obvious establish the ineffec- defense counsel told the trial court he that tive necessary assistance of counsel to excuse Judge had informed that Savitt the defendant addition, the default under Coleman. In we (as not, course, was fearful of his life. We can of ignore can not that claim because now determine the veracity representation of that appellate argument counsel asserted at before time, at this any- nor does the record reflect us, below) prose- and I discuss further as the thing more about the pur- reason Werts’ vouching cutor's for the detectives homicide ported however, significant, concern. It is important part was an of the context of this suggests because further that trial counsel’s trial. failure to prosecutor’s opening include the as for a deprivation basis claimed due was unreasonable. they come in every time beat them de- McMillan’s Moore, and Detective

Altee just It does of them. out statements get used that McMillan charge nial of Werts’ not job does that. Their obtain work like intimidation, not and coercion force, and beat there they could stand jury doubted mean the If confession.8 Werts’ testified, bring a de- and time every who veracity police defendants the had McMillan in. that instead fendant believed false state- signing a into coerced Werts 106-7. N.T. at 12/2/75 down to Werts’ ment, would boil the case Young, the U.S. testimony and criminal intent of denial prose of kind danger of this the explained offered) himself (much which Werts of stated: The Court vouching. cutorial circum- car under in the placing Werts the credi- vouching for in- compelling than were less that stances expressing and bility of witnesses to establish they were offered as sofar guilt the concerning opinion personal conspiracy the involvement such dangers: two pose accused the previously I have As speakeasy. the rob impression convey the comments can challenged statement stressed, the it was jury, presented not that evidence that police told purportedly wherein Werts supports prosecutor, the known to but rob- gun after the dispose of a helped ... and the charges vicari- established bery unequivocally that imprimatur itwith opinion carries mur- Bridgeman’s liability for William ous may induce and the Government part Werts was establishing that der judgment the Government’s jury to trust conspiracy. of the evidence. view than its own rather background that It is against 18-19, 105 S.Ct. 1038. at U.S. for Detective fit to vouch saw prosecutor the oth- that of to believe that credibility, Here, and is reason McMillan’s there In his summa- the fair- dangers in the case. of these undermined er detectives both First, to Werts’ the insinuation tion, responded trial. of Werts’ ness certainly jeopardy used force McMillan was testimony that Moore’s life that beyond as the statement was to extract there evidence suggested threats of force that sup- trial that which admitted follows: was which established charges and ported Now, on defense’s first me comment let (and Secondly killer. was a had certain police allegation argu- vouching directly insofar more Now, Detective you heard attitudes. concerned), Detective ment him. you saw Dougherty “professionals” jury these telling him. Detective you saw McMillan and that thought guilty, that Werts men him. you These saw Gerard obtain a state- would “professionals” division to a homicide assigned are jury may well have by coercion. top ment Department, Philadelphia Police profession- trusting those lulled into They profes- are been department. division view independent own than their als more police They have worked sionals. danger is This latter the evidence. years. for a number of department prosecutor the also because amplified here They have to that. They testified have that thought that McMillan argued a num- for policemen as employed been of his clos- during the course a killer atti- was they If had certain ber of years. I not Although do think cases, ing argument. thinking in color their tudes to vio- process a due establishes that remark homicide divi- not the be in would itself, the certainly exacerbated it in lation professionals They have be sion. to their verdict jurors would base that people danger bring They can not work. of his interro- at the time heroin withdrawal testimony, coercion According the to Werts' 8. gation. undergoing amplified Werts was because more on McMillan’s view of gated Werts than on the cautionary instruction that had strength of the against evidence given him. been by embroidering the remark government placed The imprimatur its during his closing and admonishing the upon experience McMillan’s profes- jurors that they ought not to believe a sionalism, prosecutor and the suggested heroin addict and a thief. N.T. at 12/2/75 that Moore’s life was in danger because he 34. argued, He “if you want to believe a testified. dope thief, addict you can, and a but ....” only The I have evidence been able to find threats, purported Given the the fact on this record that Werts was a thief came professionals that the trained the city’s from Detective objection McMillan. An “top thought killer, division” Werts was that testimony sustained, a cau- and the fact that McMillan had told the tionary instruction was immediately given, jury police that found stolen clothing in but that did stop not the prosecutor from bedroom, I can not understand how adding poisoned that arrow to quiver, majority can so confidently conclude and launching it as part of his summation. that Werts’ conviction is not so seriously by prosecutorial undermined transgres- Rodarte, United States v. 596 F.2d sions as to deny the due (5th Cir.1979) the Court of for Appeals Also, no law. immediate curative instruc- the Fifth Circuit held that a district court tion was offered to prosecutor’s cure the did not abuse its discretion in finding that improper vouching because trial counsel prosecutor’s suggestion that there was object.9 failed to no drug reason for enforcement agents to come into court and up make big story Moreover, enthusiasm However, was improper. based partly on professionalism for the of the homicide the strength of government’s case, detectives, and his haste to vouch their court reasoned that a new trial was not credibility is even questionable more than warranted. Id. at 146. In United States appears first above, blush. As noted Garza, (5th Cir.1979) 608 F.2d 659 Detective gratu- McMillan managed government’s case heavily rested on the itously inject in his testimony that he had of a testimony confidential informant and found articles of stolen clothing in the an agent. undercover speaking When defendant’s bedroom. Given the countless agent in his opening, prosecutor times Detective McMillan must have testi- stated: during years force, fied his 19 police on the it is that inconceivable he did not know And any there isn’t reason in it was highly improper to mention world why agent] [the would take Nevertheless, that stolen clothing. he pro- stand. professional He’s a He man. ceeded to do it. then ne- has been in this a long time. ifAnd 9. majority finds that “Werts is being excused fessed too embarrassed to do so. Id. at requirement from vouching exhaustion as to the Appellant argues then that trial counsel’s Maj. Op. statements.” at 193. My failure to seek curative instructions as well as conclude, however, colleagues that we are challenge failure remarks unable still to review the merits that claim closing on appeal” "direct constituted inef- procedurally because it is defaulted and Werts fective assistance of counsel and limit- has preju- established "either cause ed the appeal "plain review due to error dice” or a miscarriage jus- "fundamental counsel’s failure properly preserve However, Id. disagree. page tice.” Appellant's I At 25 of However, claim” at 33. assuming Id. even brief, present counsel notes that trial counsel’s failure to some- "the openly also vouched for the ” thing egregious as vouching for one of the credibility of the homicide Ap- detectives.... against main witnesses his client pellant's was reason- Appellant Br. at 25. then notes the able, prosecutor’s vouching the only explanation given the homi- for "his failure to ob- ject cide prosecutor’s detectives must also still be closing in considered as remark ar- gument,” part acknowledged which counsel of the fabric of were the context we when " ‘very egregious’" pro- was that counsel process argument. evaluate Werts' due the final court’s problem, the remedying he was when at it over there good

wasn’t the have exacerbated may well De- instruction Police Antonio the San doing it for Detective about assurances job doing prosecution’s if he wasn’t partment, cautionary initial its negated and he would McMillan there, think you do right over clothing. The the stolen En- about Drug instruction the on with gotten have ever following: included the charge jury court’s Agency. forcement Iwhat from be inferred not should [i]t on continued prosecutor The Id. at 659. or ignore to you that are have said and agent the stating that theme this the District of the comments disregard to no had reason informant the confidential in what counsel or defense Attorney guilty the was the defendant that point out respective in their you said to they have it. rebut- In they believed unless person, right, but only your not It is addresses. the closing, counsel’s tal, defense after argu- these to consider duty your it is of the motives that asserted light in the evidence to view ments and were agent the the informant both you, but to presented arguments the motives Their the snow. “pure as driven any or all of reject right the to have you a better world make this get out and are to arguments. the though Even at Id. 662. to live in.” place com- object to the to on the failed an instruction counsel Such defense at App. 158. con- trial, Appeals declaration of the Court prosecution’s at ments heels of the constituted the comments professionalism, that cluded McMillan’s Detective relief. granted habeas the detec- error” that “plain reminder prosecutor’s the “thief’) cases, (the based courts a kill- the In both thought Id. 666. tive the upon large part jurors in to caused the decisions have may their well er evidence, government’s duty to consider strength they of the a that had believe court Young. in testimony did of Werts just conflicting as the Court the it routinely relief believed state because granted light. in in that We Garza McMillan impact had a a court’s jurors substantial that follow the remark that that we assume Young trial while in of the conviction. outcome affirm a on the when we instruction overwhelming evidence principle because ignore and Rodarte we Can now impact though overcome Even guilt was sufficient undermines conviction? improper conduct. not have to they did prosecutor’s jurors of the the court told counsel, presump- arguments accept 416 U.S. DeChristoforo, Donnelly In charge the court’s followed tion (1974) 40 L.Ed.2d 637, 94 S.Ct. resolve they did certainly suggests despite a a conviction upheld the Court and McMillan conflicts between Werts closing improper remark professionalism, considering the latter’s special “took the trial court part because belief that personal assignment, and job any impression pains correct all, prosecu- After a killer. Werts was consider jury should awas jury that tor reminded Id. at case.” in the as evidence statements worthy of belief and therefore thief however, so, doing 94 S.Ct. Young, supra. anyway. See instructions that curative warned government and force power “Although be sufficient. always will not stamp of be- implicit impart an tend clear- may be too at trial occurrences some says. lievability to what instruc- curative for such a ly prejudicial him, allow and force power The same effect, the their comment mitigate tion words, impress with minimum such character.” hardly of case is in- vast government’s jury that above, Donnelly prose- Id. As noted network, the or- apart from vestigatory what believed simply jury told cutor trial, knows that machinery of derly regard with hoping the defense team non-judicial- or has guilty the accused Here, than rather jury’s verdict. ly reached conclusions on relevant facts pect] in the chest. As suspect] [the fell guilty. that tend to show he’s blow, the floor from the McMillan, who then weighed States, over Hall v. three United hundred 419 F.2d 583- (5th pounds, Cir.1969). slapped him across the side of the face with tremendous force. As ifAs enough, were not there is a room, McMillan left the he said to [the sad irony here that even more graphically other detectives] that if they needed him illustrates how misleading dangerous he would return and deliver punch this kind of vouching can be. The heart of which would stop suspect’s] [the heart. Werts’ defense was that Detective McMil lan coerced a false inculpatory statement Id. at 157. force, by using coercion, intimidation and That evidence an eery has resemblance and that the other detectives played on to some of description Werts’ of how the fear of McMillan. Despite the detectives interacted with him and McMil- prosecutor’s guarantee that McMillan lan here. McMillan’s subsequent, unrelat- a professional to a assigned top division ed conviction for various civil rights viola- department and that [homicide detec tions does not establish veracity could not tives] be so assigned if they had Werts’ allegations However, here. I sub- “certain attitudes to color their thinking in mit that ought give us additional cases” “they because have to profes be pause before we assume that Werts’ claim sionals work” and “cannot bring in peo is unjustified as as the vast majority of ple ”, and beat up... them Detective countless similar claims that in peti- arise McMillan was subsequently convicted of tions habeas relief. government’s doing exactly that in an investigation successful prosecution of McMillan is also which he conducted within months of his noteworthy because it demonstrates how interrogation of Werts. It is tragic as itas misleading the kind of vouching that oc- McMillan, ironic that Detective along be, curred here can why courts have with five other members of the homicide so expressed much concern about the tac- division of the Philadelphia Depart Police tic. It is an example of what can happen ment, was subsequently convicted of violat proverbial “search for truth” when ing civil rights of witnesses during the adversarial zeal platitudes enlists course of a investigation homicide cliches to vouch for a witness rather than

were involved in during October of 1975. analysis reasoned based upon the evidence. We subsequently affirmed that conviction in a published opinion, see United States v. Sadly, if all that pointed I have Ellis, al., (3d Cir.1979). et 595 F.2d 154 enough, were not yet there is one more is, That opinion course, a matter of remark that ignored. can not be In that public record and I will take the liberty of remark, pulled genie referring to it. racial bias out of the bottle. Ellis, we summarized the evidence pertained insofar as it to Detective McMil- V. lan as follows: suspect] [a]fter [the gone had over his THE PROSECUTOR’S ASSERTION times, statement four or five maintaining THAT IS THE “THIS WAY PEO- his innocence throughout, [two other de PLE ARE UP THERE” joined tectives] were in the interrogation room defendant McMillan. The lat notes, As the majority during closing ter told suspect] [the there were argument sought to explain three or four counts against murder why people would be sitting around drink- him and that police eyewit had an ing and decide commit robbery “out of ness. McMillan punched then sus [the clear blue.” He argued: the on “fair comment is a people” the “those May 6 in was that it testified

Moore as is regrettable as drinking is still evidence” at home ... he was evening, as here shows Butch evidence and The the house inaccurate. came to they and comment they went prosecutor’s the Despite him up to and much. came Jones looking drinking for while testimony was idle and Butch Jones about that outside mind, this is the in are way people in robbery to rob. Bear is the place a a plotting are sit- They up there. Wright are testified way people Israel neighborhood, that nothing and doing home ting up at people “those some of what about of the clear just place a out to rob the decide rob- at the time doing there” were blue. speak- speakeasy the inside bery. He was (emphasis testified Wright at 205 Maj. Op. decedent. the App. ing with added). he robbery the occurred just before that each “talking about were decedent and this blatant the deftly parries majority we what asked about family the “re- and that others’ by concluding appeal bias ex- started decedent] be a fair doing. appears [The was prosecutor the mark of computer at tri- presented learning he the evidence that on plaining comment accom- the first that Werts’ finished al, established had and he programming which day of on the house at Moore’s into the second plices going were he was stage and place on a crime, to decide trying he the and programming computer state of argued: prosecutor the Id. Had rob.” doing it.” go how he about telling us there,” up are way people the those is “this what some That is at 115-6. N.T. 11/26/75 would my colleagues hope I would that doing, and were “up there” people the remark for recognize this better be able to “up people of the way that is the some they would con- hope I that it was. what Yet, can some- majority there” are. than nothing more is that the latter cede blatant that the how conclude attempt to ex- inappropriate cheap, highly an entire character of condemnation and race the defendant’s fact of ploit the “fair comment is a neighborhood (as to most will be evident class. peo- 4 or 5 Apparently because evidence.” comment) Black, is from in engaged were neighborhood in ple that lives is Moore where neighborhood and the conspiracy. a criminal in neighborhood Black impoverished an imagine ought I can of insinuation tactic Philadelphia. North This kind ever made would have adversarial prosecutor as mere that not to be dismissed in an area law if Moore lived something such a remark that It is hyperbole. predominate- Philadelphia is It is a ill afford. society northern can forbids Hill is class. Chestnut ly upper White to the subconscious appeal not-so-subtle it strains credu- neighborhood, any place such absolutely no has bias that suggest that breaking point lity to the man courtroom, one where let alone argued that would have introduc “The accused murder. stands ” there had up are way people “this prejudiced material tion of this irrelevant occurred of circumstances the same set eyes him the by appellant casting Yet, community is no Hill. Chestnut values group of a with a member jury as Philadelphia.10 than North “up there” less society, there alien to the rest allegedly likely that fore, it was more implying I believe Yet, aside what casting even Com charged.” crime committed the remark, of this naive assessment be a 468, 472, 375 Tirado, 473 Pa. monwealth reference that this majority’s conclusion Detective already improperly vouched for mitigated the fact is not 10. This concern assuring jury that veracity McMillan’s is himself Black. McMillan Detective he held position that not hold he would Detective jury not associate would and, (inferentially) professionalism but people who lived being like McMillan credibility. Moreover, integrity and had "up there.” A.2d new trial (Pa.1977)(ordering be ed defendant’s assertion that “certain con cause of admission of purporting evidence duct and statements of the district attor specific to show character trait to Puerto ney during deprived him of a fair males implied greater Rican which likeli trial” noting “[a] careful study of the hood of commission of the charged). crime record in its entirety disclosed no real Vue, See also United States v. 13 F.3d contention”). merit to this (8th 1206, 1212-3 Cir.1994)(holding that It is difficult for me to imagine any arguments prosecutorial associating mem context other than a racial one that would particular of a ethnicity bers and from a cause someone to refer to residents of a particular geographic region with the com poor urban Black neighborhood north of of drug-related mission offenses violated central Philadelphia by saying: “this is the defendant’s constitutional rights); way are people up there.” This par was United States Haynes ex rel. v. McKen ticularly given true the racial polarity that drick, (2d Cir.1973). 481 F.2d 152 existed in this city at the time. gener See majority notes that Werts’ claim ally, Stone, Chuck Hating Blacks as Sick this that comment was a racially motivated as Hating Cops, News, Daily Phila. attempt jurors to inflame was pre- never 3, 1976, March at 10 (speaking generally of courts, sented state that we can the harsh racial existing climate in Phila not now consider it. Maj. Op. at 205. delphia mid-1970’s). during the Use of that However, appellate counsel seeks to estab- stereotype was blatantly improper, and lish the prerequisite by arguing “cause” (unlike my colleagues) I can find no justifi that failure to argument make that cation “Appeals for it. to racial or reli ineffective assistance of counsel the ex- gious prejudice are especially incompatible tent that it not presented to the state with the concept of a fair trial because of courts context which is now the likelihood that reason would be de argued. App. See Br. 24at and 31. throned and that bias and will emotion Tirado, reign.”

Appellate Pa. at counsel notes A.2d that trial coun only explanation sel’s for failing

to this comment was that he was too em barrassed to do so. App. 154. Clearly, VI. CONCLUSION that is not adequate. It is clearly not an No one can now conclude to a mathe- omission on a based reasonable defense matical certainty that an innocent man has strategy. Moreover, assuming even ar been However, convicted here. mathemat- guendo that “cause and prejudice” does certainty ical Rather, is not the test. not exist to excuse the failure to challenge “[w]e consider scope objec- earlier, the comment context that tionable comments and their relationship statement remains part of background to the entire proceeding, the ameliora- state court would have tive effect any curative instructions considered to properly adjudicate Werts’ given, and the strength of the evidence claim conduct de supporting the defendant’s conviction. prived him of a trial. fair But the state As the Court has emphasized, court did not even address Werts’ due ‘a criminal conviction not to be lightly process claim outside the context of a overturned on the of a basis claim Sixth Amendment of ineffective as alone, comments standing for the state- sistance of I counsel. do think we are ments or conduct must be viewed ignore free to it in that merely context ’ context.” because it wasn’t in the addressed same light that we are asked Zehrbach, to view it. (3d v. See U.S. 47 F.3d Dickerson, 102, Cir.1995) (en Commonwealth banc) 406 Pa. (quoting v. Young, U.S. (1962) (the 176 A.2d 421 reject 11, 105 1038). 470 U.S. at S.Ct. frequency the nature Given CORPORATION; HOLDING In re PWS during this occurred transgressions Mississip Bruno's, Inc; Max of Food reading that one concerned am trial I Air, Inc.; Stores, Inc; BR Inc; pi, A.F. we conclude may opinion majority Inc; Max Food Georgia, Max of Food blinders, the dic- ignored put simply Inc; Foodmax, Inc; Tennessee, Su- fairness of fundamental tates Foods, Inc; Food Bruno's Young, Lakeshore pronouncements Court’s preme Company; Inc; Georgia Stores, Sales stamped stamp, and a rubber got out Enterprise, Inc. peti- SSS of Werts’ denial and the conviction Moreover, if I fear tion, “affirmed.” Co., Management Huff Asset relief, W.R. there to habeas not entitled isWerts in L.L.C., Appellant 00-5042. Writ.” the “Great left of little precious face of relief grant failure Our Trustee USA, as Indenture Bank HSBC mis- kind of very licenses this record Subordinated Senior for the 10.5% to con- continually purport that we conduct Notes, Appellant in 00-5074. misconduct vindicating the We are demn. Al- to stand. allowing verdict 00-5042, 00-5074. Nos. able to establish may not be though Werts from resulted process denial due that a Appeals, States United error, for grounds any one of the asserted Circuit. Third in context happened of what aggregate 10, 2000. March Argued we is what evidence government’s with the must consider. 18, 2000. Sept. Filed conduct of a review

“Our a writ application trial on

a state determining limited to corpus is

habeas in- so conduct prosecution’s

whether as to unfairness with the trial

fect[ed] a denial of resulting conviction

make Ramseur, F.2d at 1239 983 process.”

due 765, Miller, 483 U.S. v. Greer

(citing 618) (internal L.Ed.2d 97

107 S.Ct. omitted). The district

quotations petition denying erred

clearly process due addressing his even

without final nail

claim, placing are and we court’s affirming the district

that error clearly establishes This case

judgment. fairness that the fundamental

violation of law of the due bedrock

is the in a everyone afforded ought to be Abrahamson, trial, Brecht

criminal L.Ed.2d 619, 633, S.Ct.

U.S. forcefully, (1993). I Accordingly, must dissent. respectfully,

but

Case Details

Case Name: Tyrone Werts v. Donald T. Vaughn the District Attorney of the County of Philadelphia the Attorney General of the State of Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 15, 2000

Citation: 228 F.3d 178

Docket Number: 98-1764

Court Abbreviation: 3rd Cir.