Lead Opinion
OPINION OF THE COURT
On January 4, 1983, a Pennsylvania state court sentenced Victor Hassine to life in prison, following his 1981 conviction on charges of first degree murder, attempted murder, criminal conspiracy, and criminal solicitation. Now, more than fifteen years later, we are faced with the question of whether to vacate Hassine’s conviction by granting his petition for habeas relief brought pursuant to 28 U.S.C. § 2254. Hassine contends that relief is warranted because the state prosecutor sought to use his post-arrest silence for impeachment purposes at trial in violation of the due process principles established in Doyle v. Ohio,
I. FACTUAL AND PROCEDURAL HISTORY
A. The Murder Conspiracy
This case arises out a conspiracy involving Hassine and his co-conspirators George Gregory Orlowski and William Eric Decker, which culminated in the August 22, 1980, murder of James Puerale and the shootings of Albert “Skip” Kellet and Lois Kellet.
The evidence at trial showed that Hassine first met Orlowski in 1979, and that shortly thereafter they decided to open a store in Morrisville, Pennsylvania, called Greg’s Quality Meat Market (“the Market”). The store was financed by Hassine’s family, overseen and supervised by Hassine himself, and operated on a daily basis by Orlowski. However, the Market soon experienced financial problems, and, with Hassine’s knowledge, Orlow-ski began selling marijuana and methamphetamine from a back room in the store.
In June 1980, Albert Kellet, a close friend of Orlowski, purchased $150 of methamphetamine at the Market. Upon returning home, Kellet discovered that the drugs were of inferior quality and he became enraged. He called Orlowski and invited him to his apartment under the false pretense of wishing to buy more methamphetamine. When Orlow-ski arrived, Kellet threatened him with a club, stole all of his money and drugs, and threw him out of the apartment.
Several days later, Orlowski, Hassine, and Decker, among others, met at the Market to discuss Kellet’s actions. The State’s witnesses testified that at this meeting, Hassine announced that he wanted Kellet “wasted” and that if Lois Kellet, Albert’s wife, was present, she “was to go also, because any witnesses had to go.” As a result, Hassine, Decker, and Orlowski made several attempts over the next month to obtain a gun with which to kill Kellet, and they investigated the possibility of paying two other individuals to have Kellet murdered. A number of confrontations between Hassine and Kellet also erupted during this time, and, on at least one occasion, Hassine instructed Decker to shoot Kellet and to kill him. Because it was dаylight and a witness was present, Decker declined. Nevertheless, on August 22, 1980, Decker had his own encounter with Kellet, and he returned to the Market to tell Has-sine that “[tjonight’s the night — the cat’s got to go. We’ll use your gun.”
According to the State’s witnesses, Has-sine picked Decker up later that evening and
The police arrested Decker the next day, and arrested Hassine three months later, charging Hassine with first degree murder, attempted murder, conspiracy, and solicitation.
B. The Murder Trial
The State presented thirty-four witnesses at Hassine’s trial, including Decker, who had negotiated a plea bargain with the District Attorney to avoid the death penalty. Decker and the other witnesses testified as to the details of the murder conspiracy and described Hassine’s extensive involvement in the plot to murder Kellet.
Hassine thеn took the stand in his own defense and, for the first time since his arrest, offered an innocent explanation for his role in the conspiracy. He testified that he had obtained his father’s gun and stored it in the Market after Orlowski had asked him for protection from Kellet. He then claimed that Decker entered the Market on the day of the murder, and, without Hassine’s knowledge, took the gun and left the store “ranting and raving, saying he was going to get Skip Kellet.” Hassine thus maintained that he never told Decker to kill Kellet, that he never gave Decker a gun with which to carry out the crime, and that he was never part of the murder conspiracy.
Attempting to discredit these claims, the prosecutor asked Hassine a series of questions on cross-examination regarding Has-sine’s post-arrest silence. In particular, he inquired three times as to why Hassine had not offered the same exculpatory story to the authorities following his arrest. Hassine’s attorney objected each time, believing that the questions violated Hassine’s rights under Doyle v. Ohio, which provides that the government cannot use a defendant’s post-arrest, post-Miranda silence for impeachment purposes at trial.
The case was sent to the jury at the close of all evidence, and on June 11,1981, the jury found Hassine guilty and recommended that he be sentenced to life in prison on the charge of first degree murder.- After denying Hassine’s motions for a new trial and arrest of judgment, the court adopted the jury’s recommendation and sentenced Has-sine to life imprisonment, in addition to several consecutive prison terms extending from two to twenty years.
C. Review of the State Court Conviction
Hassine appealed his conviction to the Superior Court of Pennsylvania, assigning fifteen reversible errors to the trial court. See Commonwealth v. Hassine,
On May 13, 1985, Hassine applied for a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, claiming again, inter alia, that the prosecution asked improper questions at trial about his post-arrest silence. On April 15,1986, however, the state Supreme Court denied the Petition and Hassine’s conviction became final.
Hassine chose not to seek a writ of certio-rari from the Supreme Court of the United States, but instead filed a petition for a writ of habeas corpus with the district court on October 28,1986. Among other things, Has-sine argued once again that the prosecutor had exploited his post-arrest silence as an impeachment tactic in violation of due process and Doyle. The district court referred the petition to a Magistrate Judge for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B), and on June 15,1988, the Magistrate Judge recommended that relief be denied. After reviewing the record in detail, the Magistrate Judge found strong evidence “that the jury may have impermissibly been able to draw an inference between petitioner’s silence and his guilt, thus clearly infringing upon petitioner’s due process rights as established in Doyle.” Nevertheless, he concluded that any constitutional error was harmless, because “[t]he evidence against Hassine was overwhelming.”
Hassine filеd several objections to the Report and Recommendation, and the district court granted de novo review of the Magistrate Judge’s findings consistent with 28 U.S.C. § 636(b)(1)(C). One year later, on November 15, 1989, the district court issued a Memorandum and Order agreeing with the Magistrate Judge’s ruling that the jury had been permitted “to draw an impermissible inference of guilt from Hassine’s silence” in violation of Doyle and its progeny. Hassine v. Zimmerman, No. Civ. A. 86-6315,
Oral argument was held on December 1, 1989, but the court did not immediately issue a ruling, and no further events transpired in the ease for the next three and a half years. On April 21, 1993, the Supreme Court announced its decision in Brecht v. Abrahamson,
Realizing the potential impact of the new standard on Hassine’s petition, the district court scheduled a July 29, 1993, conference call to discuss several mattеrs, including “the significance, if any” of the Supreme Court’s decision in Brecht. Following that call, the parties submitted letter briefs to the district court regarding whether Hassine’s claims should be evaluated under Brecht or Chapman and whether harmless error could be found under either standard. However, two more years passed, and on May 4, 1995, the district court conducted yet another oral argument concerning whether Brecht should be applied to Hassine’s petition. Still, no decision issued, and the parties filed at least ten additional letter briefs in the ensuing two years.
Finally, on October 30, 1997 — more than eleven years from the date on which Hassine first filed his habeas petition — the district court reached a decision on the merits of the harmless error claim. The court examined the caselaw and the rationales supporting the rule in Brecht and concluded that “[t]his court must apply the Brecht standard” to Hassine’s petition for relief. Hassine v.
The district court issued a certificate of probable cause allowing Hassine to file a timely appeal, and we now have jurisdiction to hear the appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
II. THE DOYLE VIOLATION
The Supreme Court established in Doyle v. Ohio that it is improper for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence.
On appeal, the defendants argued that the prosecutor’s line of questioning violated the due process guarantees inherent in the right to remain silent. The Supreme Court agreed, reversing their convictions in light of Miranda’s implicit assurance that silence will have no adverse consequences. The Court stated that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeaeh an explanation subsequently offered at trial.” Id. at 618,
In this case, we believe that the state prosecutor violated the due process principles established in Doyle by seeking to elicit testimony about Hassine’s post-arrest, post-Miranda silence. The record shows that the prosecutor’s cross-examination of Hassine proceeded as follows:
Prosecutor: How long have you been sitting in jail, sir?
Hassine: Close to seven months.
Prosecutor: And you have been sitting in Bucks Country Prison?
Hassine: No, sir.
Prosecutor: You were in Bucks County Prison for a time?
Hassine: About a month and a half.
Prosecutor: You were sitting in Holmes-burg Prison?
Hassine: For about five months.
Prosecutor: And another prison?
Hassine: Delaware County.
Prosecutor: And conditions are not very good?
*948 Hassine: No, sir.
Prosecutor: You sat for seven months in prison with the knowledge of what was really involved in regard to this gun, and you just kept it to yourself because your attorney said to keep it to yourself?
Hassine’s Attorney: Objection.
The Court: Sustained.
Prosecutor: But you kept it to yourself until you came in to a court of law today and said it for the first time, in any event, outside of perhaps your family or your lawyer?
Hassine’s Attorney: Objection.
Prosecutor: For the first time?
Hassine’s Attorney: That is objected to.
The Court: Sustained.
On three occasions, and over three objections, the prosecutor asked Hassine why he had remained silent about the crime after his arrest and after Miranda warnings had been given. It is clear from these questions that the prosecutor was attempting to elicit the precise inferences that the State is prohibited from exploiting under Doyle. Further, the trial court did not provide, and defense counsel did not request, any curative instructions for the jury. In this regard, the instant case is distinguishable from Greer v. Miller,
In so ruling we reject the State’s argument, and the view of the Pennsylvania Superior Court in Hassine I,
The State’s argument is based on an exception contained in footnote eleven in Doyle, which provides that “post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.”
We agree that the State’s argument has some allure under Doyle as a basis for the prosecutor to use Hassine’s post-arrest silence for impeachment. However, we find, as the district court did, that Has-sinе’s direct testimony was far too innocuous and ambiguous to constitute an exculpatory version that would justify the pointed cross-examination in this case. The Doyle footnote applies when a witness testifies on the stand to a version of events and indicates that he previously told that version to law enforcement. The government can then pursue its position that the story was not previously told, and may bring out on cross-examination the fact that the defendant was silent following arrest. As the one case cited in the Doyle footnote makes clear, “to be admissible, keeping silence must be much more than ambiguous. It must appear to be an act blatantly inconsistent with the defendant’s trial testimony.” United States v.
The Doyle footnote exception only permits the prosecution to use post-arrest silence to impeach the credibility of the defendant’s version of what he did following arrest; the government cannot use the silence to impeach the exculpatory story itself or to draw inferences suggesting the defendant’s guilt. See Doyle,
Consequently, we conclude that the footnote eleven exception in Doyle is of no aid to the State. The prosecutor violated Hassine’s right to due process at trial by seeking to draw impermissible inferences about Has-sine’s post-Miranda silence following arrest.
III. HARMLESS ERROR
Having found a violation of Has-sine’s federal constitutional rights, we turn next to the issue of whether the error at Hassine’s trial can be characterized as harmless. The Supreme Court has identified two types of constitutional errors: structural and trial. See Arizona v. Fulminante,
The nature of the harmless error inquiry, however, has been modified during the pendency of Hassine’s habeas corpus proceedings, as discussed above. For many years, the standard in both direct and collateral appeals for determining whether a constitutional trial error was harmless was the test established in Chapman v. California, which held that a conviction would be vacated unless the government could prove that the
Ordinarily, this would present no problem on appeal, because we would apply the Brecht standard to a petitioner seeking habeas relief. In this case, though, Hassine argues that he is entitled to the benefit of the older, more stringent Chapman standard because no state court has ever evaluated his claim under Chapman on direct review. Before proceeding to an application of the harmless error test, we must therefore resolve the following threshold issue: should a federal court apply the Brecht standard for harmless error in a habeas case where the state courts have never conducted a review of the error on direct appeal under Chapman? The district court found that Brecht should apply regardless of the actions of the state courts, and we agree.
A. Whether Brecht or Chapman Should Apply
The federal courts remain divided as to whether Brecht or Chapman applies in a situation in which a habeas petitioner has never had his claim evaluated under Chapman on direct appeal. The Eighth Circuit, and at least two district courts, have concluded that the “rule announced in Brecht does not apply and that the Chapman harmless error standard is the appropriate test in this case.” Orndorff v. Lockhart,
First, the plain language of Brecht makes no distinction that requires us to employ Chapman on collateral review. The issue in Brecht was “whether the Chapman harmless error standard applies in determining whether the prosecution’s use for impeachment purposes of petitioner’s post-Miranda silence, in violation of due process under Doyle v. Ohio, entitles petitioner to habeas corpus relief.”
Second, in contrast to the views of some courts, we do not believe that we should regard the facts in Brecht as limiting the Court’s holding to cases in which Chapman has previously been applied. Because the Court decided Brecht after the Wisconsin Supreme Court had already ruled on the harmless error issue under Chapman, several courts have viewed prior Chapman review as integral to Brecht’s result.
While the Court noted that “it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review,”
In Brecht, the Court identified four considerations in justifying the application of a more relaxed harmless error standard for habeas petitions, including the States’ interests in the finality of convictions, comity, federalism, and the recognition that “liberal allowance of the writ degrades the prominence of the trial itself.” Id. at 635,
[overturning final and presumptively correct convictions on collateral review because the State cannot prove that an error is harmless under Chapman undermines the States’ interest in finality and infringes upon their sovereignty over criminal matters. Moreover, granting habeas relief merely because there is a reasonable possibility that trial error contributed to the verdict, is at odds with the historic meaning of habeas corpus — to afford relief to those whom society has grievously wronged. Retrying defendants whose convictions are set aside also imposes significant social costs, including the expenditure of additional time and resources for .all the parties involved, the erosion of memory and dispersion of witnesses that accompany the passage of time and make obtaining conviсtions on retrial more difficult, and*952 the frustration of society’s interest in the prompt administration of justice.
Third, contrary to Hassine’s argument, we believe that the policy interests identified in Brecht are nonetheless implicated in cases where the state courts have not evaluated a petitioner’s claim under Chapman. Hassine urges that we follow Lyons, in which a district court stated that Brecht should be used only when federal courts would be repeating Chapman analyses performed by the state courts, because it is only in these situations that the federal courts demonstrate a “lack of respect for state courts’ ability as federal constitutional interpreters, and hence ... violate obligations of comity and principles of federalism.”
Once again, however, we disagree. Finality, comity, and federalism do not turn on whether the state courts have performed a Chapman analysis, but depend, rather, on the fact that they have rejected a defendant’s direct appeal. Indeed, a federal habeas court which overturns a state conviction on collateral review still upsets a State’s interest in finality, and still raises federalism, comity, and trial process concerns, regardless of whether the state courts have previously identified the constitutional error or have performed a Chapman analysis on direct appeal.
In light of the Court’s reasoning and holding in Brecht, it is anomalous to say that a Chapman standard should apply in any ha-beas ease based on concerns such as federalism, comity, or finality. Brecht stands for the proposition that these concerns are to be advanced by employment of the Brecht standard itself. Thus, not to apply Brecht, and to apply instead a less deferential standard, is to nullify not merely the policies that the Court has advanced, but the very import of the Brecht decision. In fact, the Supreme Court has repeatedly emphasized the importance of deference to State “sovereignty over criminal matters,” Brecht,
Therefore, while the absence of a state court Chapman review may make the considerations identified in Brecht less compelling, it certainly does not eliminate them. As our sister circuits have concluded, Brecht is still the general rule to apply in habeas cases, even in situations where the state courts never employ Chapman, because “principles
Finally, we note that we are wary of the practical impact of applying Chapman to every ease where a prior Chapman review has not occurred. As the Seventh Circuit recognized in Tyson, “ordinarily ... the state court will not have found any error and therefore will have had no occasion to apply any standard of harmless error. Brecht itself was a fluke in this regard; the state courts had considered the issue of harmless error and applied the Chapman standard.”
Cases like Brecht and Teague express the Court’s belief that collateral review entails heightened deference and respect to the state courts, and we must follow governing precedent when it applies, as it does here. Accordingly, we hold that a federal habeas court performing a harmless error inquiry on collateral review must employ the standard for harmless error articulated in Brecht, even if the state courts have never reviewed the error on direct appeal under Chapman.
B. Whether Brecht Should he Applied to Hassine
Even if Brecht applies generally to collateral proceedings, Hassine contends that we should still review his claims under Chapman due to the unique and unusual facts of his case. In particular, he argues that Chapman review is appropriate here because (1) he forfeited the right to pursue an appeal in the Supreme Court when Chapman was still the law for harmless error on collateral review, and because (2) the district court proceedings were marked by such extensive delay as to violate his right to due process.
First, the fact that Hassine made the deliberate choice to forego seeking relief in the Supreme Court is irrelevant. Hassine could not, of course, have anticipated an intervening change in the law, but that alone is insufficient to prohibit a retroactive application of Brecht on collateral review. Hassine made a tactical decision to bypass the Supreme Court and to proceed to the district court for habeas relief, and we will not reward that decision by employing a less stringent standard when reviewing his petition.
Second, while we agree that Hassine experienced excessive delay in the processing of his petition, we do not believe that he is entitled to habeas relief, including any altered standard for harmless error, even if the delay in the district court gave rise to a violation of his due process rights.
After Heiser I was remanded to the district court, however, we clarified our earlier remarks by revisiting the due process issue in a subsequent appeal. See Heiser v. Ryan,
However, while we have shown a willingness to issue writs of mandamus and to entertain lawsuits for damages, we have never granted habeas relief because of a delay in the processing of a petition, and we decline to do so here. The federal courts are authorized to provide collateral relief where a petitioner is in state custody or under a federal sentence imposed in violation of the Constitution or the laws or treaties of the United States. 28 U.S.C. §§ 2254, 2255. Thus, the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner’s conviction; what occurred in the petitioner’s collateral proceeding does not enter into the habeas calculation. We have often noted the general proposition that habeas proceedings are “hybrid actions”; they are “independent civil dispositions of completed criminal proceedings.” See, e.g., Santana v. United States,
Therefore, to the extent that a petitioner wishes to claim that delay in the processing of a collateral petition violates due process, we hold that the petitioner’s remedy, if any, is through such avenues as a lawsuit for damages or a writ of mandamus rather than through the habeas corpus proceeding itself. In the ease at bar, we thus conclude that Brecht still applies in evaluating whether the Doyle violation at Hassine’s trial constituted harmless error.
C. Application of the Brecht Standard for Harmless Error
Having found that Brecht applies to Hassine’s petition, we proceed next to an examination of whether the district court properly concluded that the prosecution’s Doyle violation was harmless.
Hassine contends that the Doyle violation could not have been harmless because it went to the heart of his defense. He maintains that because he was the only witness testifying as to his version of the events, and because the Doyle error undermined his credibility, it necessarily had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
At the outset, we note our agreement with the district court’s finding that the evidence, as mounted through a parade of Commonwealth witnesses, was substantial indeed. The witnesses testifying as to Hassine’s planning of, and intent to commit, the crime were numerous, and their stories consistent.
Hassine settled on a weapon for the shootings: a stolen .25 caliber automatic handgun. (N.T. 933). Both Decker and Wharton testified that Hassine gave Decker the.25 while the three were in the Market van. (N.T. 53, 749).
After buying the bullets, Decker and Has-sine drove by Kellet’s house, where Hassine told Decker to shoot him then and there with the .25. (N.T. 61). Decker declined because it was daytime, and a witness was present. (N.T. 61-62). Hassine and Decker repeatedly test fired the gun into the back wall of the store, but the .25 was malfunctioning and had to be put aside, despite their attempts to fix it. (N.T. 58-60, 62-63, 750-52, 811-12).
Hassine and his co-defendant Orlowski also met with Breed members Tuite and Schwab to discuss killing Kellet. After bail-
ing Tuite out of jail on a gun charge involving the .357, Hassine contacted him about a “deal” involving Kellet, and the four met to discuss a contract killing. (N.T. 557, 560, 560-61, 562, 627, 630, 753-55).
The Commonwealth also presented evidence of Hassine’s conduct both at and after the incident that pointed to his guilt. On the night of the shootings, Decker testified that he met Hassine at the market and said, “Tonight’s the night — this cat has got to go. We’ll use your gun. I want two hundred and fifty dollars.” (N.T. at 77, 218-19). Hassine agreed and said he would come back to pick Decker up with his car. Id.. Decker further testified that Hassine then drove him to Trenton and retrieved the .380 Llama handgun used in the shootings from his parents’ house; gave him directions to Kellet’s house; told him that he would wait for him and drive him away after the shootings; and gave him a Yankees batting helmet to disguise himself during the shootings. (N.T. 83-85, 87-88).
Hassine then went to Orlowski’s house, where Hassine and Orlowski met a third person, Michael Thompson (“Thompson”), who testified that all three got into his car. (N.T. 861-63). Hassine was carrying a metal pipe. (N.T. 870). Hassine told Thompson to drive to the parking lot across the street
After the murder, when Hassine and Or-lowski returned from their attempts to find Decker, Hassine told Orlowski that they still had to find Decker, because he was afraid Decker would be arrested. (N.T. 1227-28). The following morning, Hassine told his employee Wharton to drive the pair to Decker’s apartment, so they could try once again to retrieve the .380 from Decker. (N.T. 761). When they realized Decker had been arrested, Hassine told Decker’s girlfriend, Valerie Lynch, to get rid of the gun. (N.T. 761-63, 1043-44, 1046-47). As word spread that the case against Hassine was building, Tuite and Schwab decided to try to intimidate Hassine into giving them $10,000 to kill Commonwealth witnesses, and Hassine considered their demands but did not ask them to follow through on the plan.
Not only did the Commonwealth’s case present evidence of Hassine’s guilt but also evidence of both a cover-up and instances of lying that detracted from Hassine’s credibility. On the night of the shootings, Hassine told his codefendant Orlowski to keep his “mouth shut” if the police questioned him. (N.T. 1228). Hassine’s attempts to influence others continued as the investigation intensified. After Decker was arrested for the shootings, Hassine tried to make Orlowski sign a statement holding him responsible for the crimes, and the two held practice sessions in which Hassine and Orlowski practiced Orlowski’s story. (N.T. 1388-90). Valerie Lynch testified that Hassine told her to lie about his and Decker’s whereabouts the night of the shootings, saying; “Remember, Valerie, I was in New York, and Eric Decker was at home.” (N.T. 764-65, 1051-52). In the course of an intercepted phone conversation, Hassine queried Thompson about what Thompson had told the police during questioning, and in the course of that conversation the two agreed, ostensibly, that they would keep each other out of the case.
Hassine had made promises to Decker as a part of his agreement to kill Kellet — an apartment, money, and a future on “easy street” — and he continued the practice of offering money or services for cooperation from others after the shootings had taken place. (N.T. 63, 111, 752-53, 773). In the course of the conversation in which he urged her to lie, Hassine also promised Lynch that he would help her and her child out with money, cuts of meat, or anything else she needed. (N.T. 1052). Hassine also promised Thompson, in the course of their intercepted phone conversation, that Thompson should look into buying Kellet’s house, and that the two could enter into a deal whereby Hassine would put up the money for the house and the surrounding property, and Thompson could keep the house while Hassine developed the lot. (N.T. 896-97, 897-900). In his own testimony, Hassine admitted that he had no intention of buying the house or developing the lot, but he was making the promise because he wanted to know what Thompson told the police. (N.T. 1563-64).
Hassine denied having any feud with Kel-let, having any animosity toward Kellet, or saying that he wanted Kellet killed or “wasted,” claiming instead that he had only wanted Kellet to be put in jail. (N.T. 1428-29, 1432-34, 1496, 1497-98, 1500, 1553).
Hassine also testified that he had, in fact, rebuffed Tuite and Schwab’s offer to kill Kellet for him by indicating that the situation with Kellet was being handled by the police. (N.T. 1455-59). Hassine claimed to have no idea why Tuite and Schwab would think he would want Kellet killed. (N.T. 1455, 1492).
Hassine admitted that he had engaged in a complex course of behavior involving guns, but testified that his search for a weapon was undertaken in order to find adequate protection for the store. He conceded that he had contacted Camera about obtaining a gun, even though he knew he could purchase a gun legally; that he had bought bullets and signed the register at the gun store because Decker had asked him to do so, even though he knew that Decker was on probation for a gun charge; and that he had shot up the wall of the store with Decker because Decker wanted to demonstrate problems with the gun and he just got “carried away” in the process. (N.T. 1430-31, 1436, 1445-46, 1449-50, 1549-52, 1553, 1556-58). Hassine also explained his conduct on the night of the shootings as being motivated by his desire to get his father’s gun back and to prevent a crime from occurring. (N.T. 1466-68, 1526-29, 1521-32).
Hassine’s version of events was further undercut by evidence that he was not the mild-mannered person he portrayed himself to be. There was testimony as to his threatening and controlling Orlowski, his need to be a boss of others and his desire to protect his turf and his authority, even if doing so entailed resort to violence. (N.T. 488-89,
The Doyle violation occurred as a series of three questions in the midst of Hassine’s testimony, and, lаter, in two ambiguous references to Hassine’s silence in the prosecutor’s closing argument. (N.T. 1543-1544, E.H.223, 259-60). Based on our assessment of the trial evidence, we conclude that the questions posed in the midst of Hassine’s testimony did not have a substantial or injurious effect on the jury’s verdict. Nor did the two ambiguous references made to a general pattern of silence result in an overemphasis on this silence that destroyed the jury’s ability to look at the evidence in the case, as Hassine contends. Rather, these statements were couched within a general framework of asking the jury to consider the credibility of the witnesses as a whole, and as such, the closing provided the jury with ample latitude to evaluate Hassine’s credibility and the evidence of his guilt apart from those particular statements.
While not minimizing the importance of the right at issue or condoning the prosecutor’s conduct, we find that the actual effect of the Doyle violation on Hassine’s credibility before the jury and the inferences drawn by that jury, and on the jury’s determination of guilt or innocence, was minimal, as the improper questions and statements occurred within a contextual presentation of a story that was, on its own, not likely to be viewed as credible. Given the overwhelming evidence of Hassine’s guilt, and his lack of credibility apart from the Doyle violation, we conclude that the constitutional error at Has-sine’s trial was harmless; there is little doubt that the prosecutor’s Doyle violation did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
D. The Footnote Nine Exception to Brecht
Hassine’s final argument is that even if the Doyle error did not substantially influence the jury, he is still entitled to relief under an exception to the harmless error rule noted in Brecht. In footnote nine of the Brecht opinion, the Supreme Court stated:
Our holding does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict. Cf. Greer v. Miller,483 U.S. 756 , 769,107 S.Ct. 3102 , 3110,97 L.Ed.2d 618 (1987) (Stevens, J., concurring in judgment).
As the citation in Footnote Nine acknowledges, the exception to Brecht’s harmless
The one most frequently encountered is a claim that attaches a constitutional label to a set of facts that does not disclose a violation of any constitutional right.... The second class includes constitutional violations that are not of sufficient import in a particular case to justify reversal even on direct appeal, when the evidence is still fresh and a fair retrial could be promptly conducted.... A third category includes errors that are important enough to require reversal on direct appeal but do not reveal the kind of fundamental unfairness to the accused that will support a collateral attack on a final judgment.... The fourth category includes those errors that are so fundamental that they infect the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained.
Id. at 543-44,
It is, of course, this fourth category that the Court referenced eleven years later in Brecht as a potential exception to the harmless error standard. Justice Stevens has admitted that “[t]his category cannot be defined precisely,” id. at 544,
Brecht itself sheds light on the Footnote Nine exception as well. Brecht involved a petitioner convicted of first-degree murder and sentenced to life imprisonment. The petitioner took the stand at trial and admitted that he had fatally wounded his brother-in-law, Roger Hartman, but he claimed that the killing was accidental. Over the objections of defеnse counsel, and in violation of Doyle, the State asked the petitioner on cross-examination and again on recross-examination “whether he had told anyone at any time before trial that the shooting was an accident, to which petitioner replied ‘no.’ ”
Second, we do not believe that the prosecutor’s actions here were “deliberate and especially egregious” within the meaning of Footnote Nine. As we discussed supra, there was some evidence that Hassine had opened the door to questions about his post-arrest silence by testifying that he was “available” for questioning by the police. In fact, this is precisely what the Pennsylvania Superior Court found on direct appeal of Hassine’s claim. See Hassine I,
Finally, we conclude that the Doyle violation did not “so infect the integrity of the proceeding,” Brecht,
IV. CONCLUSION
For the foregoing reasons, the district court’s Order dated October 30, 1997, will be affirmed.
Notes
. This case is not subject to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), because Hassine filed his habeas petition well before the April 24, 1996, date on which the AEDPA took effect.
. Hassine’s appeal thus differs greatly from Fair-child, where the court determined that post-arrest silence was admissible because the defense attorney had specifically asked the defendant if he had “cooperated fully with the FBI and U.S. Attorney’s office in responding with anything that you all wanted.”
. Brecht adopts a more deferential standard on collateral review for cases involving constitutional trial errors. Nevertheless, the degree of the difference in practice remains to be seen as the new test is applied. As Justice Stevens, whose concurrence provided the decisive fifth vote in Brecht, noted, "[g]iven the critical importance of the faculty of judgment in administering either standard, however, th[e] difference [in emphasis] is less significant than it might seem.... In the end, the way we phrase the governing standard is far less important than the quality of the judgment with which it is applied.”
. A panel of the Fifth Circuit recently noted its disagreement with Hogue, but concluded that "we may not ignore the [Hogue ] decision, for in this circuit one panel may not overrule the decision of a prior panel." Barber v. Johnson,
. Two courts passed on the issue after finding that the trial error would not have been harmless under either standard. See Lyons v. Johnson,
. For example, the Eighth Circuit has written that Brecht was “based largely on the notion that because the state courts can properly apply the Chapman harmless error standard on direct review, the federal habeas courts need only review those decisions under the Kotteakos harmless error standard.” Orndorff,
. We do not mean to imply that habeas relief should be limited in the name of federalism and comity alone. We note merely that Supreme Court jurisprudence requires us to consider the systemic costs of applying certain standards on collateral review, and that, in this case, those costs are substantial even if the state courts never perform a Chapman analysis on direct appeal.
. The state courts may not use Chapman to evaluate harmless error on direct appeal if, as here, they conclude that there was no constitutional error and thus do not perform the harmless error analysis at all, if they find that the petitioner has defaulted procedurally on his claim, or if there is no opportunity to address the error because it is discovered only after the defendant has already exhausted his state appeals.
. Hassine also argues that his appeal is different because no state court has ever conducted a Chapman review of his claims. As we discussed above, however, we believe that this does not alter our analysis in determining whether Brecht applies.
. While we certainly do not condone the extraordinary delay in processing Hassine’s petition, we wish to make clear that we are not holding that the delay constituted a violation of due process. We hold merely that Hassine would not be entitled to relief through habеas corpus proceedings even if the delay did amount to a constitutional violation.
. In fact, a review of our unpublished opinions reveals that we routinely entertain mandamus petitions complaining of extraordinary delay in habeas corpus proceedings at the district court level.
. We hasten to add that "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances.” Kerr v. United States Dist. Ct.,
. Providing relief to a petitioner in state custody because of a delay in the federal courts would also greatly undermine principles of federalism and comity by disturbing a state court judgment due to a federal court error.
. The district court also evaluated Hassine's claim under Chapman, stating in a footnote that "the record establishes sufficient evidence of Hassine's guilt to suggest that the Doyle error would have been harmless under the Chapman reasonable-doubt standard as well.” Hassine III,
. The Commonwealth put 34 witnesses on the stand. Among those witnesses central to the Commonwealth’s case were: (1) Eric Decker, a sometime employee of Hassine’s who shot the Kellels, Sofield, and Puerale; (2) Greg Orlowski, the manager and day-to-day owner of the Mar-
. Ron Wharton recalled Hassine stating that, "He wanted him wasted. He had to set an example.” (N.T. 744).
. Decker testified that Hassine handed him the gun and stated "here, hit him in the head and leave it there.” (N.T. 53).
. The .25, a spent shell, and photos of the holes in the Market wall were entered into evidence. (N.T. 51-52, 792-97, 800-01).
. Both Tuite and Schwab testified that Hassine appeared upset and angered by the challenge Kellet posed to his authority. Tuite: "Hassine was pissed off — pissed off that somebody would step on his toes.” (N.T. 563). Schwab: Hassine was "ruffled because somebody messed with one of his boys.” (N.T. 628).
. Schwab mentioned that Orlowski and Hassine wanted to continue to consider the possibility of killing Kellet for money: "They were haggling back and forth about the fifteen hundred bucks, so I took the two fifty. They wanted a night to think about if it was worth fifteen hundred bucks to waste Kellet.” (N.T. 629-30).
. Hassine later complained that Tuite and Schwab had "ripped him off.” (N.T. 755).
. In the course of their drive, the three went to the Dunkin' Donuts, where Hassine mentioned that they had been seen. (N.T. 867).
. Schwab testified as follows:
He was all frazzled; he was confused — "I can't think — I don’t know what to do” — imbalanced — all that shit, and he walked around. He said he would talk to his old man to see if he could come up with some bucks.
Q: Did you talk to him any more after that, Mr. Schwab?
A: Yeah — one more time.... I told him the pressure was coming down on him. And he said he would try again to get the money. I told him I would take a van load of steaks— pack the van with steaks and give me five grand. (N.T. 631-32).
. V: So, as far as they're concerned, you know, you were with somebody else that night, right?
M: Yeah, as far as they're concerned I wasn't even with you.
V: You weren’t.
M: Yeah. (N.T. 901).
. The weaknesses of the Commonwealth's witnesses were exposed in the course of both direct and cross-examination. Decker was cross examined on his frequent use of methamphelamine, prior record, shifting stories, and his cooperation
. Wharton had testified that Hassine insisted that the drugs be "cut” to increase profits. (N.T. 780-81). Hassine also referred to Thompson as "Mr. Reds” in his testimony and in the course of the recorded conversation played for the jury. (N.T. 1470, 1507-08).
. Kellet himself testified to the pattern of escalating threats and harassment between himself, Orlowski, and Hassine prior to the shootings, as well as prior tensions between himself and Has-sine. (N.T. 382-83, 394-99).
. Hassine does not contend that the error falls within Footnote Nine’s prohibition on errors “combined with a pattern of prosecutorial misconduct." Brecht,
. It is worth noting that Brecht does not truly establish an exception for "deliberate and especially egregious errors;” it merely "does not foreclose the possibility” that such an exception could exist.
. We are aware of only two federal circuit court opinions discussing the Footnote Nine exception
Concurrence Opinion
Concurring.
I believe the majority reaches the correct result, agree with its reasoning, and, so I concur in its judgment. I write separately only to add my thoughts to Section III, D of its opinion, and express my indignation with the prosecuting attorney’s misbehavior.
The concept of an accused’s right to remain silent, to be free from prosecutorial comment about that silence, and to be free from any adverse сonsequences from accepting this constitutional protection, is so fundamental in our jurisprudence, and is so well known among practitioners, that I cannot conceive of any alternative but that the prosecutor’s use of Hassine’s silence was both deliberate and calculated to invite the jury to draw an adverse inference from it. Moreover, I believe this deliberate violation of Mr. Hassine’s constitutional rights is egregious— indeed, it is outrageous. The prosecutor not only questioned Hassine about his silence, but continued to do so even after objections to the questions were sustained by the trial court. This arrogance towards the court’s
Nonetheless, on this habeas corpus review, I cannot say that his behavior, although unprofessional, “so infected” the trial’s integrity, that it requires us to grant Hassine relief. Moreover, even though the prosecutor again made reference to Hassine’s silence in his closing argument, considering the entire record, I agree with the majority — we cannot say that his action constituted a “pattern” of misconduct. The prosecutor’s act was unfair, for which he deserves a stern rebuke. Has-sine, nonetheless, received a fair trial.
Hence, although the prosecutor’s behavior came very close to crossing the line of harm, and came even closer to that “unusual” ease in which relief could be granted regardless of harm, I agree with the majority that it did not.