Washington v. Secretary Pennsylvania Department of Corrections , 801 F.3d 160 ( 2015 )


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  •                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ______
    No. 12-2883
    ______
    JAMES WASHINGTON
    v.
    SECRETARY PENNSYLVANIA DEPARTMENT OF
    CORRECTIONS; THE DISTRICT ATTORNEY OF THE
    COUNTY OF PHILADELPHIA; THE ATTORNEY
    GENERAL OF THE STATE OF PENNSYLVANIA,
    Appellants
    ______
    On Appeal from United States District Court
    for the Eastern District of Pennsylvania
    (E.D. Pa. No. 2-10-cv-02869)
    District Judge: Honorable Eduardo C. Robreno
    ______
    Remanded by the Supreme Court of the United States
    on May 30, 2014
    Argued on Remand February 9, 2015
    Before: SMITH, FISHER and CHAGARES, Circuit Judges.
    (Opinion Filed: September 1, 2015)
    Susan E. Affronti, Esq.
    Thomas W. Dolgenos, Esq. ARGUED
    Philadelphia County Office of District Attorney
    3 South Penn Square
    Philadelphia, PA 19107
    Counsel for Appellants
    Adrian N. Roe, Esq. ARGUED
    Duquesne University School of Law
    632 Fisher Hall
    600 Forbes Avenue
    Pittsburgh, PA 15282
    Counsel for Appellee
    ______
    OPINION OF THE COURT
    ______
    FISHER, Circuit Judge.
    This case returns to this Court upon grant
    of certiorari by the United States Supreme Court, followed
    by vacatur and remand for further consideration in light of the
    Supreme Court’s decision in White v. Woodall, 
    134 S. Ct. 1697
     (2014). This appeal requires us to determine whether the
    Pennsylvania Superior Court unreasonably applied “clearly
    established Federal law, as determined by the Supreme
    Court,” 
    28 U.S.C. § 2254
    (d)(1), when it permitted the
    admission into evidence of a confession by a non-testifying
    codefendant that redacted James Washington’s name and
    replaced it with the generic terms describing Washington and
    his role in the charged crimes. The District Court found that
    2
    this was an unreasonable application of clearly established
    federal law. We will affirm the District Court’s judgment.
    I.
    A.     Factual History
    On February 24, 2000, James Washington, Willie
    Johnson, Romont Waddy, and James Taylor set out to rob a
    Dollar Express store at which Taylor worked. They met
    around midnight and drove to the store at around 4:15 AM.
    Washington drove the four men in a vehicle owned by one of
    his family members. Washington and Taylor remained in the
    vehicle while Waddy and Johnson entered the store. Upon
    encountering two store employees in the loading dock,
    Johnson shot and killed both. Johnson divided money
    removed from a safe and the men left the premises.
    Shortly thereafter, Taylor surrendered to police, gave a
    statement, and agreed to testify against the other men in
    exchange for a reduced sentence. Taylor identified
    Washington as the driver. Waddy also gave a statement to the
    police on March 5, 2000, and identified Washington as the
    driver. He added that Washington, after hearing the shots,
    entered the store and helped remove cash from the safe.
    Johnson, Waddy, and Washington were tried jointly
    before a jury in the Court of Common Pleas of Philadelphia
    County in October and November 2001. Taylor testified on
    October 25, 2011, identified all of the coconspirators, and
    discussed in detail their roles in the crime. He clearly and
    repeatedly identified Washington as the driver of the car. On
    cross-examination, Washington’s counsel pointed out
    significant inconsistencies in Taylor’s story, in addition to his
    history of substance abuse and admitted heavy impairment
    from drugs at the time of the incident in question. Four days
    later, on October 29, 2011, Detective John Cummings
    3
    testified. After the trial judge gave a limiting instruction,
    Cummings read a redacted version of Waddy’s confession
    over Washington’s objection. The jury never saw the original
    or redacted copy of the confession. Cummings’s reading
    deleted Johnson and Washington’s names or nicknames each
    time they were used; they were replaced with phrases such as
    “the guy who went into the store” and “the driver.”
    Washington argued to the jury that he could not have
    been guilty because he had an alibi for the time of the
    robbery. The evidence of this alibi was conflicting. The jury
    found Washington guilty, and the trial judge sentenced
    Washington to two consecutive life terms of incarceration for
    the murders and a concurrent term of ten to twenty years’
    incarceration for conspiracy.
    B.      Procedural History
    The Superior Court of Pennsylvania affirmed
    Washington’s conviction, and the Supreme Court of
    Pennsylvania denied Washington’s appeal. In January 2005,
    Washington challenged his convictions under the
    Pennsylvania Post Conviction Relief Act (PCRA), 
    42 Pa. Cons. Stat. §§ 9451-46
    , alleging ineffective assistance of
    counsel and a number of violations of his constitutional
    rights. The PCRA court denied his petition and the Superior
    Court affirmed, writing that there was no violation of
    Washington’s Confrontation Clause rights under the blanket
    rule set out in Commonwealth v. Travers, 
    768 A.2d 845
     (Pa.
    2001). The Pennsylvania Supreme Court denied his appeal.
    On June 14, 2010, Washington filed a federal habeas
    corpus petition in the Eastern District of Pennsylvania. A
    Magistrate Judge initially reviewed Washington’s petition
    and recommended denying the petition on the merits. Before
    the District Court, Washington raised eleven objections to the
    4
    Magistrate Judge’s Report and Recommendations. The
    District Court sustained one of these objections regarding
    Washington’s rights under the Confrontation Clause, and
    granted a conditional writ of habeas corpus. The
    Commonwealth appealed from that decision.
    This Court heard the appeal on May 15, 2013, and
    issued a precedential opinion on August 9, 2013. In that
    opinion, we highlighted Bruton’s holding that a “criminal
    defendant is deprived of his right to confrontation when a
    nontestifying codefendant’s confession names him, regardless
    of whether the judge has given the jury a limiting instruction.
    Although juries are generally presumed able to follow
    instructions about the applicability of the evidence, the Court
    in Bruton determined that a nontestifying codefendants’ [sic]
    confession that names the defendant poses too great a risk
    that the jury will use the evidence to determine the guilt or
    non-guilt of someone other than the confessor.” Washington
    v. Sec’y Pa. Dep’t of Corr., 
    726 F.3d 471
    , 475 (3d Cir. 2013)
    cert. granted, judgment vacated sub nom. Wetzel v.
    Washington, 
    134 S. Ct. 1935
     (2014) (citing Bruton v. United
    States, 
    391 U.S. 123
    , 126, 135 (1968)). We pointed out that
    the redacted statement of the nontestifying codefendant in
    Richardson v. Marsh, 
    481 U.S. 200
     (1987), had eliminated
    any mention of the defendant’s name or her existence and did
    “not violate the Confrontation Clause because jurors are more
    likely to be able to follow a limiting instruction when ‘the
    confession was not incriminating on its face.’” Washington,
    726 F.3d at 476 (quoting Richardson, 
    481 U.S. at 208
    ). After
    discussing the redaction of Waddy’s confession, we
    concluded that “no reasonable reading of Bruton, Richardson,
    and Gray can tolerate a redaction that the trial judge knew at
    the time of introduction would be transparent to the jurors.
    Taylor’s testimony clearly and explicitly identified
    5
    Washington as the driver. Replacing Washington’s name with
    ‘the driver’ was, as counsel stated, tantamount to using
    Washington’s name.” Washington, 726 F.3d at 480. We held
    that “the District Court properly granted Washington’s habeas
    relief because (A) the Pennsylvania Superior Court
    unreasonably applied clearly established federal law when it
    concluded that the trial court had properly admitted into
    evidence redacted nontestifying coconspirator testimony and
    (B) that error substantially and injuriously affected
    Washington’s case.” Id. at 475. We then affirmed the District
    Court’s order and instructed the Commonwealth to either
    release or retry Washington within 120 days. The
    Commonwealth was subsequently granted a writ of certiorari
    by the Supreme Court of the United States, which vacated this
    Court’s judgment and remanded the case to this Court for
    further consideration in light of White v. Woodall. We
    requested supplemental briefing and reargument from the
    parties in light of the Supreme Court’s decision.
    II.
    The District Court had jurisdiction pursuant to 
    28 U.S.C. § 2254
     and this Court has jurisdiction over the District
    Court’s order granting the conditional writ of habeas corpus
    pursuant to 
    28 U.S.C. §§ 1291
     and 2253(a). We conduct a
    plenary review of the District Court’s legal conclusion that
    the state court decision was an unreasonable application of
    federal law as established by the holdings of the Supreme
    Court of the United States. Lambert v. Blackwell, 
    387 F.3d 210
    , 231 (3d Cir. 2004).
    III.
    Washington seeks relief on the ground that his Sixth
    Amendment rights were violated by the state court’s
    admission of a codefendant’s improperly redacted confession
    6
    and argues that we are not precluded from granting relief
    under the Antiterrorism and Effective Death Penalty Act of
    1996, because the state court’s admission of this confession
    was an unreasonable application of clearly established
    Supreme Court precedent. 
    28 U.S.C. § 2254
    (d)(1). The
    Commonwealth argues that, in light of White, we must now
    consider whether the state court’s analysis of Washington’s
    Confrontation Clause claim was a reasonable application
    of that precedent. Washington argues that he is entitled to
    relief, even post-White. As directed by the Supreme Court, we
    now reconsider Washington’s claim for federal habeas relief
    in light of White.
    A.
    In this case we must determine whether the
    Pennsylvania Superior Court unreasonably applied federal
    law as established by the holdings of the Supreme Court of
    the United States. “This standard . . . is difficult to meet.”
    Metrish v. Lancaster, 
    133 S. Ct. 1781
    , 1786 (2013) (internal
    quotation marks omitted). “In this context, clearly established
    law signifies the holdings, as opposed to the dicta, of [the
    Supreme Court’s] decisions.” Howes v. Fields, 
    132 S. Ct. 1181
    , 1187 (2012) (internal quotation marks omitted). “And
    an unreasonable application of those holdings must be
    objectively unreasonable, not merely wrong; even clear error
    will not suffice.” White, 
    134 S. Ct. at 1702
     (internal quotation
    marks omitted). Instead, the “state prisoner must show that
    the state court’s ruling on the claim being presented in federal
    court was so lacking in justification that there was an error
    well understood and comprehended in existing law beyond
    any possibility for fairminded disagreement.” Harrington v.
    Richter, 
    562 U.S. 86
    , 103 (2011). However, “[a]pplying a
    general standard to a specific case can demand a substantial
    element of judgment. As a result, evaluating whether a rule
    7
    application was unreasonable requires considering the rule’s
    specificity. The more general the rule, the more leeway courts
    have in reaching outcomes in case-by-case determinations.”
    Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004).
    The pertinent federal law at issue is the Sixth
    Amendment right of a criminal defendant to “be confronted
    with the witnesses against him.” U.S. Const. amend. VI. The
    contours of this right as relevant to Washington’s petition
    were established in three Supreme Court cases: Bruton v.
    United States, 
    391 U.S. 123
     (1968); Richardson v. Marsh,
    
    481 U.S. 200
     (1987); and Gray v. Maryland, 
    523 U.S. 185
    (1998).
    In Bruton, a postal inspector testified at trial that one
    codefendant, Evans, confessed to committing an armed
    robbery and had named his codefendant Bruton as his
    accomplice. The trial judge “instructed the jury that although
    Evans’ confession was competent evidence against Evans it
    was inadmissible hearsay against petitioner and therefore had
    to be disregarded in determining petitioner’s guilt or
    innocence.” Bruton, 
    391 U.S. at 125
    . The Bruton Court held
    that a criminal defendant is deprived of his constitutional
    right to confrontation when a non-testifying codefendant’s
    confession naming him as a participant in the crime is
    introduced at their joint trial, regardless of whether the judge
    has given the jury a limiting instruction to consider the
    confession only with regards to the confessor. 
    391 U.S. at 126
    . In short, the Court “recognized a narrow exception” to
    the presumption that a jury will follow the instructions of the
    trial court, Richardson, 
    481 U.S. at 207
    , noting that under
    these circumstances “the risk that a jury will not or cannot,
    follow the instructions is so great and the consequences of
    failure so vital to the defendant, that the practical and human
    8
    limitations of the jury system cannot be ignored.” Bruton, 
    391 U.S. at 135
    .
    Next, in Richardson, one non-testifying codefendant’s
    confession to an assault and murder that was given to police
    was admitted at the codefendants’ joint trial. The confession
    was redacted to omit all reference to Clarissa Marsh, one of
    the other codefendants being tried at that time. Richardson,
    
    481 U.S. at 203
    . Further, the jury was given a limiting
    instruction to not use the confession in any way against the
    other codefendants, including Marsh. 
    Id. at 205
    . Marsh
    objected to the confession’s admission under Bruton as a
    violation of her right to confrontation. The Richardson Court
    held that “the Confrontation Clause is not violated by the
    admission of a nontestifying codefendant’s confession with a
    proper limiting instruction when, as here, the confession is
    redacted to eliminate not only the defendant’s name, but any
    reference to his or her existence.” 
    Id. at 211
    . When a
    confession has been completely sanitized in this fashion, the
    Richardson Court explained, “a judge’s instruction may well
    be successful” and “there does not exist the overwhelming
    probability” that a jury will be unable to disregard the
    incriminating statement. 
    Id. at 208
    .
    Most recently came Gray. There, a non-testifying
    codefendant’s confession to beating a person to death was
    admitted after it was redacted by substituting a blank space or
    the word “deleted” for the defendants’ names. Gray, 
    523 U.S. at 188
    . When the confession was read in court, the detective
    who read it into evidence said the words “deleted” or
    “deletion” whenever either of the codefendants’ names
    appeared. 
    Id.
     One of the codefendants challenged the
    admission of the confession into evidence, despite the judge
    giving a limiting instruction.
    9
    The Gray Court took the opportunity to delineate the
    boundaries of the exception to the constitutional right to
    confrontation. It wrote that in Gray, “unlike Richardson’s
    redacted confession, this confession refers directly to the
    ‘existence’ of the nonconfessing defendant.” 
    Id. at 192
    . It
    held that,
    redaction that replaces a defendant’s name with
    an obvious indication of deletion . . . still falls
    within Bruton’s protective rule. . . . Redactions
    that simply replace a name with an obvious
    blank space . . . or other similarly obvious
    indications of alteration, however, leave
    statements that, considered as a class, so closely
    resemble Bruton’s unredacted statements that,
    in our view, the law must require the same
    result.
    
    Id.
     This is because “the obvious deletion may well call the
    jurors’ attention specially to the removed name [and] . . . [is]
    directly accusatory.” 
    Id. at 193-94
    . Justice Scalia in dissent
    noted that “[t]oday the Court . . . extends Bruton to
    confessions that have been redacted to delete the defendant’s
    name.” 
    Id. at 200
    .
    Taken together, the current state of the law is that there
    is a Confrontation Clause violation when a non-testifying
    codefendant’s confession is introduced that names another
    codefendant, Bruton, 
    391 U.S. at 126
    , or that refers directly to
    the existence of the codefendant in a manner that is directly
    accusatory, Gray, 
    523 U.S. at 193-94
    . That is because such
    statements present a “substantial risk that the jury, despite
    instructions to the contrary, [will] look[] to the incriminating
    extrajudicial statements in determining [the defendant’s]
    10
    guilt.” Bruton, 
    391 U.S. at 126
    . But there is no violation if the
    confession is properly redacted to omit any reference at all to
    the codefendant, making it more likely that the jury will be
    able to follow the court’s instruction to disregard this
    evidence in rendering its verdict. Richardson, 
    481 U.S. at 208, 211
    . It is against this background that we assess whether
    the Pennsylvania Superior Court unreasonably applied clearly
    established federal law.
    In many cases, the decisions of lower courts on Bruton
    issues are close calls that cannot be said to unreasonably
    apply clearly established federal law. They are subject to
    fairminded disagreement. This is not one of those cases. In
    our view, the confession that Detective Cummings read
    during his testimony was insufficiently redacted and the
    Pennsylvania Superior Court unreasonably applied clearly
    established federal law when it affirmed its admission into
    evidence. The Superior Court applied a blanket rule, derived
    from Commonwealth v. Travers, 
    768 A.2d 845
     (Pa. 2001),
    that any redaction that would require a juror to consider an
    additional piece of information outside the confession in
    order to identify the coconspirator being referred to
    automatically falls inside the realm of Richardson. See App.
    at 72-73. This is not a reasonable view of the law and would
    permit the admission of many facially incriminating
    confessions, in direct contradiction of the rules clearly
    established in the Bruton/Richardson/Gray trilogy. For
    instance, Gray expressly instructs that the redaction cannot
    use descriptive terms, 
    523 U.S. at 195
    , cannot replace the
    defendant’s name with any kind of symbol, 
    id. at 192
    , and
    cannot replace the defendant’s name with an obvious
    indication of deletion, 
    id. at 192
    . The redacted confession in
    this case utilizes each of those proscribed methods. It replaces
    Washington’s name with the phrase “the driver” in some
    11
    instances. See, e.g., J.A. 268, 269, 270. “Driver” in this
    context is a noun used to describe the role that Washington
    played in the robbery; it is used to identify and describe a
    particular actor, much like a name or title. Furthermore, it is a
    kind of symbol—an obvious indication of deletion or
    alteration to replace a name that is mysteriously absent. The
    reference to “Jimmy” in the confession arouses suspicion or
    confusion when the other participants are called “the guy who
    went into the store with Jimmy” and “the driver,” though
    Waddy stated that he knew “Jimmy” for “like a good couple
    of years” while he knew “the driver” for “a long time, like ten
    years.” J.A. 268-70. This is such an obvious indication of
    alteration that it “function[s] the same way grammatically. [It
    is] directly accusatory,” Gray, 
    523 U.S. at 194
    , and “leave[s
    a] statement[] that . . . so closely resemble[s] Bruton’s
    unredacted statements,” 
    id. at 192
    , that allowing its admission
    is an unreasonable application of clearly established federal
    law. This “obvious deletion may well call the jurors’ attention
    specially to the removed name,” 
    id. at 193
    , the antipode of the
    intended result of the redaction.
    Furthermore, Gray instructs that these rules apply to
    instances where more than one name is redacted, 
    id.
     at 194-
    95, and the rules apply even to those redacted statements
    where there is not blatant linkage, 
    id. at 193
    . It is not enough
    to say that because there were redactions of both Johnson and
    Washington’s names that the rules from Bruton and Gray do
    not apply. The express language of the Supreme Court in
    Gray states that even though:
    [T]he reference might not be transparent in
    other cases in which a confession, like the
    present confession, uses two (or more blanks) . .
    . we believe that, considered as a class,
    redactions that . . . similarly notify the jury that
    12
    a name has been deleted are similar enough to
    Bruton’s unredacted confessions as to warrant
    the same legal results.
    
    Id. at 194-95
    . This is just that case. Here, there were two
    obvious alterations that notified the jury that Washington’s
    name was deleted. It therefore demands the same result as in
    Bruton. This is the case even though “the State does not
    blatantly link [Washington] to the deleted name.” 
    Id. at 193
    .
    The jury did not need to even hear Taylor’s earlier testimony
    that Washington was the driver; it needed only to “lift [its]
    eyes to [Washington], sitting at counsel table, to find what
    will seem the obvious answer.” 
    Id.
     Waddy’s detailed
    confession about the murders and the role that each of the
    four participants played, even though redacted, was so
    powerfully incriminating that it “posed an obvious and
    serious risk that the jury would, contrary to the instruction it
    received, weigh Waddy’s confession in its determination of
    Washington’s guilt or non-guilt.” Washington, 726 F.3d at
    481. As we concluded before, “no reasonable reading of
    Bruton, Richardson, and Gray can tolerate a redaction that the
    trial judge knew at the time of introduction would be
    transparent to the jurors.” Id. at 480. For all of these reasons,
    the admission of Waddy’s insufficiently redacted confession
    is in violation of the clear Confrontation Clause precepts laid
    out in Bruton, Richardson, and Gray and demands that we
    overturn the Pennsylvania court’s ruling. This was an
    unreasonable application of clearly established federal law as
    set out by the Supreme Court.
    B.
    Orders from the Supreme Court that summarily grant
    certiorari, vacate the decision below without finding error,
    13
    and remand the case for further consideration by the lower
    court (“GVRs”) are not decisions on the merits. See Tyler v.
    Cain, 
    533 U.S. 656
    , 666 n.6 (2001). Rather,
    [w]here intervening developments, or recent
    developments that [the Supreme Court has]
    reason to believe the court below did not fully
    consider, reveal a reasonable probability that
    the decision below rests upon a premise that the
    lower court would reject if given the
    opportunity for further consideration, and where
    it appears that such a redetermination may
    determine the ultimate outcome of the litigation,
    a GVR order is, we believe, potentially
    appropriate.
    Lawrence ex rel. Lawrence v. Chater, 
    516 U.S. 163
    , 167
    (1996) (per curiam). It is precisely this type of GVR with
    which we must grapple today to determine whether the
    Supreme Court’s disposition in White ought to change our
    disposition of Washington’s appeal.
    In White v. Woodall, 
    134 S. Ct. 1697
     (2014), the
    defendant “brutally raped, slashed with a box cutter, and
    drowned a 16-year-old high-school student. After pleading
    guilty to murder, rape, and kidnaping, he was sentenced to
    death.” 
    Id. at 1700-01
    . At the penalty phase of the trial in
    state court, the defendant called character witnesses to testify
    on his behalf but did not himself testify. The defense counsel
    asked for the judge to instruct the jury that the defendant was
    not compelled to testify and the fact that he failed to do so
    should not prejudice him in any way. 
    Id. at 1701
    . The trial
    judge denied this request; that decision was affirmed on
    appeal. After exhausting his direct appeals, the defendant
    14
    petitioned for the writ of habeas corpus in federal court. The
    District Court granted relief, holding that “the trial court’s
    refusal to issue a no-adverse-inference instruction at the
    penalty phase violated respondent’s Fifth Amendment
    privilege against self-incrimination.” 
    Id.
     It wrote that “[a]n
    unreasonable application can also occur where ‘the state court
    either unreasonably extends a legal principle from [Supreme
    Court] precedent to a new context where it should not apply
    or unreasonably refuses to extend that principle to a new
    context where it should apply.’” Woodall v. Simpson, No.
    5:06CV-P216-R, 
    2009 WL 464939
    , at *4 (quoting Williams
    v. Taylor, 
    529 U.S. 362
    , 407 (2000)) (alteration in original).
    The Fifth Circuit affirmed, and the Supreme Court granted
    certiorari.
    In its opinion, the Supreme Court grappled with the
    contours of this aspect of Fifth Amendment law vis-à-vis §
    2254’s “unreasonable application” language. The relevant
    Supreme Court precedents were Carter v. Kentucky, 
    450 U.S. 288
     (1981), Estelle v. Smith, 
    451 U.S. 454
     (1981), and
    Mitchell v. United States, 
    526 U.S. 314
     (1999). In Carter, the
    Supreme Court held that a judge is required to give a no-
    adverse-inference instruction at the guilt phase of the trial.
    
    450 U.S. at 294-95, 300
    . Estelle was a case about the
    prosecution’s use of a defendant’s court-ordered psychiatric
    testimony to establish his future dangerousness at the
    sentencing phase of trial. 
    451 U.S. at 456
    . Mitchell, finally,
    “disapproved a trial judge’s drawing of an adverse inference
    from the defendant’s silence at sentencing with regard to
    factual determinations respecting the circumstances and
    details of the crime.” White, 
    134 S. Ct. at 1702
     (internal
    quotation marks omitted). In White, the District Court
    analogized to these cases and held that by not extending these
    precedents to give the no-adverse-inference instruction at the
    15
    penalty stage of a trial, the state court had unreasonably
    refused to extend clearly established federal law.
    The Supreme Court responded by holding that it
    has never adopted the unreasonable-refusal-to-
    extend rule on which respondent relies. It has
    not been so much as endorsed in a majority
    opinion, let alone relied on as a basis for
    granting habeas relief. To the extent the
    unreasonable-refusal-to-extend rule differs from
    the one embraced in Williams and reiterated
    many times since, we reject it. . . . [Section
    2254(d)(1)] does not require state courts to
    extend that precedent or license federal courts to
    treat the failure to do so as error.
    
    Id. at 1706
    . As a result, it reversed the Court of Appeals and
    remanded the case. It was careful, however, to note that a
    finding of unreasonable application did not require identical
    fact patterns. “To the contrary, state courts must reasonably
    apply the rules ‘squarely established’ by this Court’s holdings
    to the facts of each case.” 
    Id.
     (quoting Knowles v.
    Mirzayance, 
    556 U.S. 111
    , 122 (2009)). “‘[T]he difference
    between applying a rule and extending it is not always clear,’
    but ‘[c]ertain principles are fundamental enough that when
    new factual permutations arise, the necessity to apply the
    earlier rule will be beyond doubt.’” 
    Id.
     (quoting Yarborough,
    
    541 U.S. at 666
    ) (alterations in original).
    Our opinion merely utilizes the “unreasonable
    application” concept; we do not apply the “unreasonable-
    refusal-to-extend” concept. We have repeatedly explained
    that § 2254 limits habeas relief to cases where the state
    court’s conclusion was an unreasonable application of that
    16
    law. We hold only that the Pennsylvania Superior Court
    unreasonably applied the Supreme Court’s holdings to the
    facts of Washington’s case.
    Though the Supreme Court has not provided
    significant guidance on what constitutes an extension of law
    versus an application, the Eleventh Circuit has discussed this
    distinction in Hawkins v. Alabama, 
    318 F.3d 1302
     (11th Cir.
    2003). In Hawkins, a defendant was tried in state court for
    trafficking in marijuana and failure to pay a drug tax. At trial,
    the prosecutor engaged in misconduct in handling some
    evidence. The defendant moved for a new trial, which was
    granted, and then moved to dismiss the indictment on double
    jeopardy grounds, which was denied. The defendant was
    subsequently convicted.
    Hawkins pursued a petition for post-conviction relief
    in federal court. The district court concluded that the state
    court unreasonably applied clearly established federal law
    because it unreasonably refused to extend the rule from
    Oregon v. Kennedy, 
    456 U.S. 667
     (1982), which held that
    intent of the prosecutor is the standard in determining whether
    the Double Jeopardy Clause bars retrial. 
    Id. at 675-76
    . The
    Eleventh Circuit held that the Kennedy rule applied only to
    plain, unconcealed prosecutorial misconduct, writing that
    “[t]he prosecutor’s misconduct in [Hawkins] is materially
    different from that described in Kennedy and is not—to say
    the least—clearly covered by the Kennedy rule.” Hawkins,
    
    318 F.3d at 1308
    .
    This is one of the few examples of an unreasonable
    refusal to extend Supreme Court precedent. It teaches us that
    we are permitted by § 2254(d)(1) to apply the rationales of
    Supreme Court decisions to new and different facts and
    circumstances as long as “the new facts and circumstances . .
    17
    . [are] substantially the same that were in the mind of the
    Supreme Court when it laid down the rule. . . . [However, t]o
    widen the scope of or to enlarge Supreme Court rules” is
    impermissible. Brian R. Means, Postconviction Remedies §
    29:40 (2014).
    In many cases, “it will be hard to distinguish a decision
    involving an unreasonable extension of a legal principle from
    a decision involving an unreasonable application of law to
    facts.” Williams, 
    529 U.S. at 408
    . Therefore, our touchstone is
    whether or not the legal principles from the Supreme Court
    cases at issue here are fundamental. See Yarborough, 
    541 U.S. at 666
    .
    Recall that in White the state court refused to give a
    no-adverse-inference instruction at the penalty phase, when
    the applicable Supreme Court precedent only required a no-
    adverse-inference instruction at the guilt phase. The lower
    courts labeled this an unreasonable refusal to extend Supreme
    Court precedent, not an unreasonable application of this
    precedent. When contrasted with White, it becomes clear why
    the case here is properly categorized as an unreasonable-
    application case, not an unreasonable-refusal-to-extend case.
    Instead of finding that the state court has not appropriately
    extended Bruton, Richardson, and Gray to a unique new legal
    situation, we instead admonish it for refusing to apply these
    well-established precedents to a slightly different factual
    situation—a redacted confession using generic terms and
    terms describing the defendant’s role in the crime that a jury,
    despite instruction, is unlikely to forget in deciding
    Washington’s culpability. The circumstances here constitute
    merely a factual permutation requiring the application of
    well-settled, fundamental legal principles, and therefore our
    holding is based on the Superior Court’s unreasonable
    application of well-established federal law as defined by the
    18
    Supreme Court, not on an unreasonable refusal to extend this
    law. White, 
    134 S. Ct. at 1706
     (cautioning that § 2254(d)(1)
    does not require an “identical factual pattern before a legal
    rule must be applied” and reiterating that “[c]ertain principles
    are fundamental enough that when new factual permutations
    arise the necessity to apply the earlier rule will be beyond
    doubt”) (alteration in original) (internal quotation marks
    omitted)).
    The District Court’s analysis of the Bruton rule with
    regards to Waddy’s confession has therefore not been shown
    to be in error under White and the dictates of § 2254.
    C.
    Having concluded that the Pennsylvania Superior
    Court unreasonably applied federal law as established by the
    holdings of the Supreme Court, we turn to assess whether the
    Bruton error “had substantial and injurious effect or influence
    in determining the jury’s verdict.” Brecht v. Abrahamson, 
    507 U.S. 619
    , 623 (internal quotation marks omitted). This means
    that there “must be more than a reasonable probability that
    the error was harmful . . . [and] the court must find that the
    defendant was actually prejudiced by the error.” Davis v.
    Ayala, 
    135 S. Ct. 2187
    , 2198 (2015) (internal quotation marks
    omitted).
    “If, when all is said and done, the [court’s] conviction
    is sure that the error did not influence the jury, or had but
    very slight effect, the verdict and the judgment should stand.”
    O’Neal v. McAninch, 
    513 U.S. 432
    , 437 (1995)
    (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 764
    (1946)) (alteration in original). “But if we have ‘grave doubt’
    about whether the error had substantial and injurious effect or
    influence in determining the jury’s verdict, we must conclude
    that the error was not harmless.” Adamson v. Cathel, 
    633 F.3d 19
    248, 260 (3d Cir. 2011). The Supreme Court has cautioned
    that “the uncertain judge should treat the error, not as if it
    were harmless, but as if it affected the verdict.” O’Neal, 
    513 U.S. at 435
    . We must conduct our own harmless error
    analysis. Bond v. Beard, 
    539 F.3d 256
    , 275-76 (3d Cir. 2008).
    When conducting that review, it is important to note
    that there was conflicting evidence pertaining to
    Washington’s alibi presented at trial. Washington contended
    that he had been visiting his father at the hospital at the time
    of the robbery. There was some doubt from the paramedics
    who transported his father to the hospital, neighbors, and
    other family members who had visited the hospital as to the
    veracity of this contention. Further, at trial the only
    significant evidence against Washington came from Taylor’s
    testimony. This testimony suffers from significant credibility
    problems, because of Taylor’s history of drug and alcohol
    abuse, as well as Taylor’s inherent incentive to minimize his
    own culpability as a participant in the events he described.
    The Commonwealth argues that the redaction error
    cannot have caused a “substantial and injurious effect” for
    three reasons. First, it says that the Commonwealth had a
    relatively light evidentiary burden to carry. This, however,
    dramatically understates the corroborative effect of Waddy’s
    confession on Taylor’s less-than-credible statement. Second,
    it says that Taylor’s testimony standing alone is sufficient
    evidence against Washington, so Waddy’s statement could
    not be consequential. This argument is unpersuasive, as it
    appears likely that Waddy’s confession, when viewed in
    tandem with Taylor’s statement, “had substantial and
    injurious effect or influence in determining the jury’s
    verdict.” Brecht, 
    507 U.S. at 623
     (internal quotation marks
    omitted). Finally, the Commonwealth argues that Washington
    presented a weak rebuttal of character evidence and a
    20
    hopelessly contradictory alibi. This, too, is insufficient, for
    the Commonwealth had the burden of proving Washington’s
    guilt, and the introduction of the improperly redacted
    confession undercut Washington’s effort to raise doubts about
    the credibility of Taylor’s testimony. Moreover, Waddy’s
    confession made Washington more culpable. Taylor
    identified Washington as the driver. Waddy said he was the
    driver, and that after hearing the shots, he entered the building
    (presumably skirting the victims, one of whom was clinging
    to life) and recovered the safe. This is testimony that a jury
    would have difficulty forgetting in deciding Washington’s
    culpability.
    This is a similar situation to that in Vazquez v. Wilson,
    
    550 F.3d 270
     (3d Cir. 2008), where this Court found that a
    Bruton violation caused a “substantial and injurious effect”
    even when there was ballistic evidence, fingerprint evidence,
    and other evidence at trial incriminating the defendant aside
    from the improperly Bruton-ized statement. 
    Id. at 282-83
    .
    Given that precedent, where there was far more inculpatory
    evidence and a similarly improper statement, we find that
    Washington has overcome his burden under Brecht and has
    sown in our minds “grave doubt about whether the error had
    substantial and injurious effect or influence in determining
    the jury’s verdict.” Adamson, 633 F.3d at 260 (internal
    quotation marks omitted). Therefore, we must conclude that
    the error was not harmless.
    IV.
    For the foregoing reasons, we will affirm the June 7,
    2012, order of the District Court. Consistent with that order,
    21
    the Commonwealth of Pennsylvania shall either release or
    retry Washington within 120 days of entry of this order.1
    1
    The Duquesne Law School Federal Practice Clinic
    ably represented Washington in this appeal. We thank the
    students and the law school for their service.
    22