Samuel Randolph, IV v. Secretary Pennsylvania Departm

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-9003
__________
SAMUEL RANDOLPH
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF
CORRECTIONS; SUPERINTENDENT GREENE SCI; and
SUPERINTENDENT ROCKVIEW SCI,
Appellants.
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1:06-cv-00901)
District Judge: Honorable Christopher C. Conner
__________
Argued April 26, 2021
Before: CHAGARES, KRAUSE, and RESTREPO,
Circuit Judges
(Filed: July 20, 2021)
__________
Ryan H. Lysaght [ARGUED]
Dauphin County Office of District Attorney
101 Market Street
Harrisburg, PA 17101
Counsel for Appellants Secretary Pennsylvania Depart-
ment of Corrections, Superintendent Greene SCI, and Su-
perintendent Rockview SCI
Jennifer Chiccarino
Aren Adjoian [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellee Samuel Randolph
__________
OPINION OF THE COURT
__________
RESTREPO, Circuit Judge.
The week before his state capital trial, Samuel Randolph
hired Samuel Stretton, his counsel of choice, to replace Allen
Welch, his court-appointed lawyer. Once he was hired, Stret-
ton, on the Thursday before Monday’s jury selection, entered
his appearance and asked the trial court if it could delay the
start of trial until the following month. Citing previous delays
and the proximity to trial, the trial court denied that request.
Stretton next asked if the trial court could delay the start of
trial by just a couple of days. But the court denied that re-
quest, too. Finally, Stretton asked if the trial court could push
back Monday morning’s jury selection by just three hours so
that he could attend a previously scheduled, mandatory en-
gagement in the morning and then pick Randolph’s jury in the
afternoon. As it had twice before, the trial court denied Stret-
ton’s request and set jury selection for Monday morning.
Then, when Stretton did not appear for jury selection, the
court denied Stretton’s motion for a continuance and rejected
his entry of appearance. Randolph therefore had no choice but
to proceed to trial represented by his court-appointed lawyer.
2
The trial ended in convictions on all counts, including two
counts of first-degree murder, and the trial court sentenced
Randolph to death.
On direct appeal, the Pennsylvania Supreme Court upheld
Randolph’s convictions and sentence, and rejected Ran-
dolph’s claim that the trial court violated his Sixth Amend-
ment right to the counsel of his choice. Years later, on federal
habeas review, the District Court determined that the Penn-
sylvania Supreme Court’s decision unreasonably applied
clearly established federal law, warranting de novo review of
Randolph’s Sixth Amendment claim. Conducting that review,
the District Court concluded that Randolph suffered a Sixth
Amendment violation, a structural error not subject to harm-
less error analysis. The Court therefore granted Randolph’s
petition for a writ of habeas corpus and gave the state ninety
days to retry Randolph or release him, pending the resolution
of any appeal. The Commonwealth now appeals and, for the
reasons that follow, we will affirm.1
I. BACKGROUND
Although this case has a long procedural history, we re-
count here only the handful of events in the months leading
up to Randolph’s trial that are relevant to his Sixth Amend-
ment choice-of-counsel claim. Those facts include the trial
court’s appointment of counsel; the degradation of the rela-
tionship between Randolph and his court-appointed counsel;
Randolph’s consideration of proceeding pro se; the attempt
by Randolph’s counsel of choice to continue the trial to allow
him to represent Randolph; and the trial court’s decision not
to delay the start of jury selection, which had the effect of
preventing Randolph from being represented by the counsel
of his choice.
1
Throughout the opinion we refer to the appellants—the Sec-
retary of the Pennsylvania Department of Corrections, the
Superintendent of SCI Greene, and the Superintendent of SCI
Rockview—collectively as the Commonwealth.
3
A. The state trial court appoints counsel for Randolph
In July 2002, in the Court of Common Pleas of Dauphin
County, Pennsylvania, Randolph was arraigned on two counts
of first-degree murder, one count each of attempted murder
and conspiracy to commit murder, five counts of aggravated
assault causing serious bodily injury, and several other lesser
charges. In line with Pennsylvania law governing punishment
for first-degree murder, the government informed Randolph
that it would seek the death penalty.
Two attorneys, Anthony Thomas and Roger Laguna, were
present at Randolph’s July 2002 arraignment. But neither was
willing or able to represent Randolph on the capital charges.
Thomas attended at the request of Randolph’s family but did
not enter a formal appearance. He had been a member of the
bar for just two years and had never tried a homicide case, let
alone a capital one. Roger Laguna had been handling Ran-
dolph’s less serious charges. But he too felt unprepared to try
the capital case. So he asked the trial court to appoint substi-
tute counsel. The trial court obliged. The following month,
the trial court appointed Allen Welch to lead Randolph’s de-
fense, and set trial for February 2003.
B. Randolph’s trial is delayed and his relationship with
appointed counsel deteriorates
Randolph’s relationship with Welch began to deteriorate
soon after Welch’s appointment. At a January 3, 2003, pretri-
al conference, Randolph told the court that he and Welch
were at odds about trial strategy. Welch wanted Randolph to
submit to psychological evaluations—perhaps to pursue an
insanity defense, see App. 614, or at least to gather evidence
of circumstances mitigating capital punishment—but Ran-
dolph staunchly refused. Additionally, Randolph wanted to
press certain arguments (relating, it seems, to prosecutorial
misconduct and constitutional violations) that he claimed
Welch was not even entertaining.
Randolph also expressed to the court his dissatisfaction
with Welch’s commitment to his case. Randolph told the
4
court that Welch had visited him just once in the five months
since Welch’s appointment, App. 614, and that Welch had
told him he only took the appointment as a “favor” to the
county’s court administrators, App. 615. Welch assured the
court that he was committed to Randolph’s defense. He re-
minded the court that Randolph’s criminal case was complex
and claimed he had only recently received the bulk of Ran-
dolph’s case file from Randolph’s previous counsel and still
had not received portions of Randolph’s grand jury transcripts
from the Commonwealth.
Despite Welch’s assurances, Randolph was convinced
Welch did not have his best interests at hand. Indeed, Ran-
dolph’s relationship with Welch had deteriorated to such a
degree that Randolph asked the court whether he could repre-
sent himself pro se. App. 618 (“Your Honor, you did say that
I did have an option . . . to go pro se if I would want to,
right?”). The court confirmed that “[t]hat’s a right you have”
but “would just strongly, strongly tell you not to do that.”
App. 618. Welch agreed, acknowledging that Randolph “has
an absolute right to proceed pro se,” but “plead[ed] with him
with every fiber of my being not to do that.” Id. Sensing that
proceeding pro se would be unwise, Randolph then asked if
Thomas could represent him, as well. After a brief sidebar,
Thomas agreed to participate in Randolph’s defense. App.
617-18.
By the end of the hearing, Randolph, Welch, and the court
appear to have reached a tenuous compromise. With Thomas
assisting Welch, Randolph begrudgingly accepted Welch as
lead counsel, and Welch agreed to focus more of his energy
on Randolph’s case. See App. 613. But because Welch was
nowhere near prepared to try the case, the court agreed to de-
lay the start of trial until March 10, 2003.
C. Another delay, further acrimony, and Randolph again
requests to proceed pro se
Trial did not take place in March, however. Welch’s
mother became critically ill and was hospitalized. Welch
5
therefore moved for another continuance. The trial court
granted that request and reset trial for May 5, 2003.
With the trial delayed, the trial court, later in March, held
another conference to dispose of various pretrial motions filed
by the parties. The hearing marked a further deterioration in
Randolph’s relationship with Welch. For example, near the
end of the conference, Randolph asked the court what his
speedy trial rights were and whether and how he could effec-
tuate them. As part of its response, the trial court pointed out
that Randolph already had filed his pretrial motions. Ran-
dolph claimed he had no idea what motions had been filed on
his behalf or what those motions contained, and again com-
plained that Welch refused to visit him. App. 763 (“I don’t
even know what motion was filed on my [behalf]—[Welch]
won’t come see me. He won’t tell me or give me a copy of
nothing. I don’t even know what’s going on, Your Honor.”).
Welch conceded that he did not share the motions with Ran-
dolph prior to their filing and that he had only visited Ran-
dolph in prison once. See id. Randolph again asked to repre-
sent himself pro se. Id. (“To settle all this, I would like to go
pro se on the record right now.”). The trial court refused to
grant Randolph’s request then-and-there, and instead told
Randolph to contemplate his decision and, if he wished, to
file a motion articulating the reasons supporting his request.
The following week, the trial court held another pretrial
conference to consider Randolph’s request to proceed pro se.
At the conference, Randolph complained of “multiple defi-
ciencies concerning Mr. Welch’s performance,” and “ma[d]e
an oral motion to change [his] appointed counsel.” App. 765.
The trial court denied Randolph’s motion, telling Randolph
that “[t]he Court appoints counsel for you,” and that it “[did
not] see anything in [Welch’s] performance that would even
merit that request or for me to grant that request.” Id.
Randolph and the trial court then discussed Randolph’s
request to proceed pro se. Randolph asked the court whether,
if he were to proceed pro se, he could have daily access to the
prison’s law library. (The trial court said it would ask the
6
prison’s warden to grant Randolph more time in the library,
but that it could not guarantee any result.) Randolph then
asked who would serve as standby counsel should he proceed
pro se. The court told Randolph that it would invite Thomas
to be standby counsel but, if Thomas declined, Welch would
serve in the role. Randolph protested, but the court made clear
that Randolph had only two options: “Do you want to proceed
pro se with standby counsel as I’ve described or do you want
Mr. Welch to continue to represent you?” App. 769. With
those as his choices, Randolph decided against proceeding
pro se and Welch continued as Randolph’s counsel.
D. Randolph hires Samuel Stretton, and Stretton enters
his appearance and moves to continue the trial
Randolph’s fortunes changed the week before trial. That
week, through the sale or impending sale of a family asset,
Randolph secured the funds necessary to replace Welch with
his choice of counsel, Samuel Stretton. Randolph had first
contacted Stretton in January 2003 but could not afford to
hire him. With Stretton convinced that Randolph had secured
the requisite funds, Stretton, on the Wednesday before Mon-
day’s start of trial, entered his appearance and moved to con-
tinue the trial until the following month.
The next day, the court convened a conference call with
the parties to discuss Stretton’s entry of appearance and con-
tinuance motion. On the call, Stretton explained the bases for
his continuance request. First, he observed that he had just
been hired and would need at least some time to become fa-
miliar with the case. Second, he explained that throughout the
next week (the first week of the trial) he had numerous con-
flicts, including an inescapable one Monday morning, the
morning of jury selection.
Stretton also outlined the services he could offer Randolph
that Welch could not. Stretton emphasized that he “could[]
hire the experts or the investigators that are needed in a capi-
tal case: . . . the mitigation expert, the psychiatrist, the school
records and people, everything else you need when you try
7
these cases,” App. 627, whereas Welch, facing significant fi-
nancial limitations as a court-appointed attorney, likely could
not, see App. 628 (Welch noting that “[t]here also could be no
denying that the restrictions being economically placed on me
by the court with the fight we had over just getting some in-
vestigative money, to say nothing about not being able to . . .
[get] the money for the types of experts Mr. Stretton will be
able to get involved in the thing.”).
Welch supported Randolph’s desire to switch lawyers.
Welch said that he would “hate” to see the case proceed to
trial “as unhappy as [Randolph] is with what I’m doing for
him and with another attorney waiting to jump into the case.”
App. 626. Welch also “urge[d] [the court] to proceed careful-
ly,” since “the right to counsel of your choice is pretty darn
well etched in stone.” App. 626. Welch was concerned that,
“if we hastily take this to trial, . . . [we] will go through it all
again at some point down the road.” Id.
The state opposed Stretton’s continuance motion. It
claimed that Randolph “tarried a great deal” in his attempt to
hire Stretton. App. 627. The state’s lawyer also claimed that
witnesses he was planning on calling had been “bribed not to
testify by Mr. Randolph or his representatives,” id., and he
thought further delay would allow Randolph more time to
carry out that scheme.
The trial court said its “inclination” was to deny Stretton’s
continuance and proceed with jury selection on the morning
of Monday, May 5. App. 627. The court noted that the case
“got continued once before” and that “[t]his is the second
time we have brought in a special jury panel for this case.” Id.
And while the court appeared receptive to delaying the penal-
ty portion of the trial so that Stretton could retain and deploy
experts, it appeared unwilling to delay the start of jury selec-
tion. App. 627 (Court: “[M]y inclination is not to continue the
case in terms of selecting the jury on Monday, Tuesday,
Wednesday, however long that takes. The plan has always
been to go into the trial stage at that point.”).
8
Welch then jumped in. He suggested that the court’s rea-
son for not delaying the start of jury selection was easily
fixed—the summoned jurors “could be called with a phone
call and called off.” App 628. Welch also thought the court’s
proposal to allow him to pick the jury and try the guilt phase
and then let Stretton try the penalty phase was not a “viable
and wise way to proceed.” App. 628. And Welch again raised
the constitutional issue. He asked the trial court what the state
appellate courts would think about the trial court’s reasons for
denying Stretton’s motion for a continuance or Randolph the
counsel of his choice. See id.
The court was not moved. It resisted Welch’s characteri-
zation that its tentative decision to deny the continuance “was
based on economics and the jury panel.” App. 628. It claimed
it was “weighing very weighty matters on behalf of Mr. Ran-
dolph,” including his right to counsel, against countervailing
interests of the state, including the prompt resolution of the
case. Id. The court noted that Randolph’s case was “old” and
had “been around,” and that “we have dealt with all the pre-
trial matters, and we are ready to go to trial.” App. 629.
Stretton tried one last time to convince the court to delay
Monday’s jury selection. He asked the court whether it had
“any flexibility,” even “like a day or two.” Id. The trial court
refused to budge. It said the “[jury] selection process is pretty
much etched in stone.” Id. But it said it “certainly would con-
sider” including time between the end of jury selection and
the beginning of trial so that Stretton had some time to pre-
pare. Id. The conference ended soon thereafter with jury se-
lection still scheduled for the morning of Monday, May 5.
E. The trial begins, and begins without Stretton
The parties convened in court Monday morning before ju-
ry selection to clarify Randolph’s representation. The on-the-
record conversation began at 10:37 a.m. App. 636. The court
recounted an off-the-record conversation it had with the par-
ties the previous Friday. In that conversation, Stretton had
modified his continuance request, asking for Monday’s 9:00
9
a.m. jury selection to be postponed only until 12:00 p.m. That
way, Stretton could pick Randolph’s jury and still attend his
previously scheduled engagement in the morning.
The court noted that it had instead agreed to move jury se-
lection back one hour, from 9:00 a.m. to 10:00 a.m. App. 637.
It also noted that it “fully expected to see” Stretton or some-
one on his behalf that morning “to begin the jury selection
process.” Id. When Stretton did not appear by 10:00 a.m., the
trial court formally denied Stretton’s continuance motion,
App. 637, and his entry of appearance, App. 638, indicating
only that it would entertain Stretton’s participation if he re-
filed his entry of appearance at a later date.
Welch tried once more to persuade the court to delay jury
selection so that Stretton could pick the jury and try the case.
He told the court the continuance request was “an appropriate
request given the fact that I’m court-appointed, that I have at
this point absolutely a complete breakdown of communica-
tion with my client, which is largely why Mr. Thomas is here,
. . . he acts as a translator.” App. 638.
The trial court held firm, denied Welch’s last overture,
and called for the jury panel. The prospective jurors entered
the courtroom at 11:10 a.m., App. 640, fifty minutes before
the time that Stretton would have been available.
***
After two days of jury selection and a four-day trial, the
jury convicted Randolph on all counts, including the capital
murder charges. The court permitted Randolph to proceed pro
se during the penalty phase. Randolph refused, however, to
testify or present any mitigation evidence. The jury found two
aggravating circumstances and no mitigating ones and re-
turned a verdict of death on both capital counts.
Stretton represented Randolph at the formal sentencing
proceeding. Stretton moved for a new trial and asked that
Randolph’s sentences be vacated based, respectively, on the
trial court’s failure to grant a continuance and its alleged error
10
in allowing Randolph to represent himself at the penalty
phase and present no mitigating evidence. Stretton argued that
the trial court’s denial of the continuance he requested violat-
ed Randolph’s Sixth Amendment right to choice of counsel
and his Fourteenth Amendment right to due process, as well
as similar protections under the Pennsylvania Constitution.
The trial court denied Stretton’s motions for relief and sen-
tenced Randolph to death.
F. The Pennsylvania Supreme Court rejects Randolph’s
Sixth Amendment claim on direct appeal
Because Randolph had been sentenced to death, his appeal
went directly to the Pennsylvania Supreme Court. Among
other claims, Randolph argued that the trial court’s denial of
Stretton’s motion for a continuance had violated his Sixth
Amendment rights. The Pennsylvania Supreme Court ad-
dressed and rejected that claim, as follows:
[Randolph] argues the trial court erred in denying him
the right to have private counsel represent him during
trial and in denying a continuance to enable private
counsel to represent him. He contends he sought pri-
vate counsels [sic] representation because there was a
major breakdown in communication between him and
court-appointed counsel and because court-appointed
counsel was unprepared, rather than for purposes of
delay.
...
We have held, however, that the constitutional right to
counsel of one’s own choice is not absolute. Rather,
“the right of the accused to choose his own counsel, as
well as the lawyer’s right to choose his clients, must be
weighed against and may be reasonably restricted by
the state’s interest in the swift and efficient administra-
tion of criminal justice.” Thus, this Court has ex-
plained that while defendants are entitled to choose
their own counsel, they should not be permitted to un-
reasonably “clog the machinery of justice” or hamper
11
and delay the state’s efforts to effectively administer
justice.
...
[Randolph’s] case had already been continued twice at
the request of court-appointed counsel. [Randolph]
waited until May 1, 2003, two business days before
trial was scheduled to commence, to apprise the trial
court of his desire to have private counsel represent
him, even though he had first contacted private counsel
about representation in January, 2003. The trial court
denied [Randolph’s] request for a continuance but
gave private counsel the opportunity to participate and
was willing to accommodate his schedule and allow
him time to prepare following jury selection. However,
private counsel never showed up at trial or during sen-
tencing. In considering the motion for continuance, the
trial court weighed [Randolph’s] right to counsel of his
choice against the state’s interest in the efficient ad-
ministration of justice. We find no abuse of discretion
in the trial court’s refusal to grant [Randolph’s] request
for a continuance.
Commonwealth v. Randolph, 873 A.2d 1277, 1282 (Pa. 2005)
(all citations omitted).
The United States Supreme Court denied Randolph’s peti-
tion for certiorari. Randolph v. Pennsylvania, 547 U.S. 1058(2006). Through counsel, Randolph then initiated federal ha-
beas proceedings in the District Court.2 As amended, Ran-
dolph’s habeas petition advanced fifteen claims, including the
Sixth Amendment choice-of-counsel claim rejected by the
Pennsylvania Supreme Court. The District Court held an evi-
2
Randolph also initiated proceedings in state court under
Pennsylvania’s Post Conviction Relief Act. Those proceed-
ings ended in withdrawal of all claims and are otherwise ir-
relevant to the issues on appeal here. So we do not discuss
them further. And there is no dispute that Randolph exhausted
this claim. See 28 U.S.C. § 2254(b).
12
dentiary hearing at which multiple witnesses testified, includ-
ing Stretton and Thomas. Afterward, the parties briefed their
positions.
The District Court’s decision followed. In it, the District
Court addressed only the choice-of-counsel claim, as the dis-
position of that claim obviated the need to address any others.
The District Court determined that while the Pennsylvania
Supreme Court did not misstate the governing law, its appli-
cation of that law was objectively unreasonable given the
facts of Randolph’s case; that its decision, therefore, was not
entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”); and that Randolph’s
Sixth Amendment claim must be reviewed de novo.
Reviewing the claim de novo, the District Court concluded
that the state trial court violated Randolph’s Sixth Amend-
ment right to choice of counsel. And it held that such a viola-
tion constituted structural error, that is, error immune from
harmless error analysis. Consequently, the District Court
granted Randolph a writ of habeas corpus, vacated Ran-
dolph’s convictions and sentence, directed the Common-
wealth to retry or release Randolph within ninety days, and
stayed the execution of the writ until thirty days after final
disposition of any appeal. This timely appeal by the Com-
monwealth followed.
II. COMMONWEALTH’S APPEAL
The Commonwealth appeals the District Court’s grant of
habeas corpus on Randolph’s convictions and sentence based
on his Sixth Amendment choice-of-counsel claim. For the
reasons set forth below, we will affirm the District Court.
A. Jurisdiction and Standard of Review
The District Court had jurisdiction over Randolph’s peti-
tion for a writ of habeas corpus under 28 U.S.C. §§ 2241 and
2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and
2253. Our review of the District Court’s order granting Ran-
dolph habeas relief is two-fold: We review its legal conclu-
13
sions and any factual inferences it drew from the state court
record de novo and, because it conducted an evidentiary hear-
ing, its new factual findings for clear error. Mathias v. Super-
intendent Frackville SCI, 876 F.3d 462, 475 (3d Cir. 2017);
Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007); Hakeem
v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). The Common-
wealth was not required to obtain a certificate of appealability
prior to seeking review of the District Court’s decision to
grant Randolph’s habeas petition. See Fed. R. App. P.
22(b)(3); Slutzker v. Johnson, 393 F.3d 373, 375 n.1 (3d Cir.
2004).
Under AEDPA, Randolph, to prevail on his habeas peti-
tion, carried the burden of demonstrating that the Pennsylva-
nia Supreme Court’s decision was “‘contrary to’ federal law
then clearly established in the holdings of [the Supreme]
Court,” “‘involved an unreasonable application of’ such law,”
or “‘was based on an unreasonable determination of the facts’
in light of the record before the state court.” Harrington v.
Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C.
§ 2254(d)(1), (2)).
“A state court decision is ‘contrary to’ clearly established
federal law if it ‘applies a rule that contradicts the governing
law set forth’ in Supreme Court precedent, or if it ‘confronts a
set of facts that are materially indistinguishable from a deci-
sion of [the Supreme] Court and nevertheless arrives at a re-
sult different’ from that reached by the Supreme Court.” Eley
v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Wil-
liams v. Taylor, 529 U.S. 362, 405-06 (2000)) (citation omit-
ted) (alteration in original); see also Travillion v. Superinten-
dent Rockview SCI, 982 F.3d 896, 901 (3d Cir. 2020).
By contrast, a state court decision reflects an “unreasona-
ble application of such law” only “where there is no possibil-
ity fairminded jurists could disagree that the state court’s de-
cision conflicts with [the Supreme] Court’s precedents,” a
standard the Supreme Court has advised is “difficult to meet”
because it was “meant to be.” Richter, 562 U.S. at 100, 102.
As the Supreme Court has cautioned, an “unreasonable appli-
14
cation of federal law is different from an incorrect application
of federal law,” id. at 101 (quoting Williams, 529 U.S. at
410), and whether we “conclude[] in [our] independent judg-
ment that the relevant state-court decision applied clearly es-
tablished federal law erroneously or incorrectly” is irrelevant,
as AEDPA sets the bar higher. Williams, 529 U.S. at 411.
Finally, “a decision adjudicated on the merits in a state
court and based on a factual determination will not be over-
turned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also
Lambert v. Blackwell, 387 F.3d 210, 234-35 (3d Cir. 2004).
In conducting this inquiry, we may not deem state-court fac-
tual determinations unreasonable “merely because [we]
would have reached a different conclusion in the first in-
stance.” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015)
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, §
2254(d)(2) demands we accord the state trial court substantial
deference. So if “‘[r]easonable minds reviewing the record
might disagree’ about the finding in question, ‘on habeas re-
view that does not suffice to supersede the trial court’s . . . de-
termination.’” Wood, 558 U.S. at 301 (quoting Rice v. Col-
lins, 546 U.S. 333, 341-42 (2006)). Yet “[e]ven in the context
of federal habeas, deference does not imply abandonment or
abdication of judicial review,” and “does not by definition
preclude relief.” Miller-El, 537 U.S. at 340.
Here, as previously described, the District Court declined
to apply AEDPA deference in reviewing the Pennsylvania
Supreme Court’s decision to reject Randolph’s Sixth
Amendment choice-of-counsel claim, concluding “that the
state court’s application of federal law was objectively unrea-
sonable.” Randolph v. Wetzel, No. 1:06-cv-901, 2020 WL
2745722, at *9 (M.D. Pa. May 27, 2020). The District Court
therefore reviewed Randolph’s claim de novo. It found that
the state trial court violated Randolph’s Sixth Amendment
rights, and that the Pennsylvania Supreme Court’s rejection of
Randolph’s Sixth Amendment claim on direct appeal “was so
lacking in justification that there was an error well understood
15
and comprehended in existing law beyond any possibility of
fairminded disagreement.” Id. at *7 (quoting Richter, 562
U.S. at 103). For the following reasons, we agree with the
District Court and will affirm its order and opinion.
B. Sixth Amendment Claim
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” Although the Sixth
Amendment secures the right to the assistance of counsel, by
appointment if necessary, in a trial for any serious crime,
Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963), the Su-
preme Court has long recognized that the Sixth Amendment
also ensures the right of a defendant to retain his preferred
counsel, see Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is
hardly necessary to say that the right to counsel being con-
ceded, a defendant should be afforded a fair opportunity to
secure counsel of his own choice.”).
To be sure, the right to one’s counsel of choice “is cir-
cumscribed in several important respects.” Wheat v. United
States, 486 U.S. 153, 159 (1988). A defendant may not, for
example, demand to be represented by an attorney who is not
a member of the bar of the relevant jurisdiction or court, or by
one that would create a serious risk of conflict of interest. Id.Nor can a defendant “insist on representation by an attorney
he cannot afford or who for other reasons declines to repre-
sent the defendant.” Id. And the right to counsel of one’s
choice does not even extend to defendants who require coun-
sel to be appointed for them. United States v. Gonzalez-
Lopez, 548 U.S. 140, 151 (2006); see also Wheat, 486 U.S. at
159. The question raised in this case is the extent to which a
criminal defendant’s right under the Sixth Amendment to his
chosen attorney is qualified by the state’s legitimate interest
in the efficient and effective dispensation of criminal justice.
In previous cases, the Supreme Court has explained how
to weigh that state interest against a defendant’s Sixth
Amendment right to choice of counsel. For instance, the
16
Court has recognized that a trial court must have “wide lati-
tude in balancing the right to counsel of choice against the
needs of fairness.” Gonzalez-Lopez, 548 U.S. at 152 (internal
citation omitted); see also Morris v. Slappy, 461 U.S. 1, 11
(1983). The Court also has recognized that trial judges must
have certain discretion over what we might call the exigencies
of court administration. So on occasion a defendant’s right to
counsel of choice may be moderated by a trial court’s sched-
ule, or the court’s need to “assembl[e] the witnesses, lawyers,
and jurors at the same place at the same time.” Morris, 461
U.S. at 11. But the Sixth Amendment entails a “presumption
in favor of counsel of choice,” Wheat, 486 U.S. at 160, and a
trial court’s “unreasoning and arbitrary ‘insistence upon ex-
peditiousness in the face of a justifiable request for delay’ vi-
olates the right to the assistance of counsel,” Morris, 461 U.S.
at 11-12 (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964)).
On direct appeal, the Pennsylvania Supreme Court held
that the trial court did not violate Randolph’s right to the
counsel of his choice. Randolph, 873 A.2d at 1281-82. In do-
ing so, it discussed only Pennsylvania law. In and of itself, so
long as “neither the reasoning nor the result” contradicts
clearly established federal law, that would not be a problem.
Early v. Packer, 537 U.S. 3, 8 (2002).
Here, the legal standard articulated by the state supreme
court does not contradict clearly established federal law. To
the contrary, the court’s discussion makes clear Pennsylvania
law is consonant with federal law. The Pennsylvania Supreme
Court, tracking Wheat and Morris, noted that the right to
counsel of choice is not absolute. Randolph, 873 A.2d at
1282; see also Wheat, 486 U.S. at 159; Morris, 461 U.S. at
11. Further, the Pennsylvania Supreme Court reasonably ob-
served that “the right of the accused to choose his own coun-
sel . . . must be weighed against and may be reasonably re-
stricted by the state’s interest in the swift and efficient admin-
istration of criminal justice.” Randolph, 873 A.2d at 1282(quoting Commonwealth v. Robinson, 364 A.2d 665, 674 (Pa.
1976)).
17
However, whether the Pennsylvania Supreme Court artic-
ulated the appropriate law is only part of the equation. Under
AEDPA, we must next ask if the state court’s application of
that law was either (1) “contrary to, or involved an unreason-
able application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or (2)
“based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1), (2). And in this case, the Pennsylvania
Supreme Court’s decision involved an unreasonable applica-
tion of clearly established Sixth Amendment law.
The Pennsylvania Supreme Court’s analysis of Ran-
dolph’s choice-of-counsel claim runs just six sentences,
which, as above, we reproduce in full:
This case had already been continued twice at the re-
quest of court-appointed counsel. [Randolph] waited
until May 1, 2003, two business days before trial was
scheduled to commence, to apprise the trial court of
his desire to have private counsel represent him, even
though he had first contacted private counsel about
representation in January, 2003. The trial court denied
[Randolph’s] request for a continuance but gave [Stret-
ton] the opportunity to participate and was willing to
accommodate his schedule and allow him time to pre-
pare following jury selection. However, [Stretton]
never showed up at trial or during sentencing. In con-
sidering the motion for continuance, the trial court
weighed [Randolph’s] right to counsel of his choice
against the state’s interest in the efficient administra-
tion of justice. We find no abuse of discretion in the
trial court’s refusal to grant [Randolph’s] request for a
continuance.
Randolph, 873 A.2d at 1282. Plainly, the state supreme
court’s description of the state trial court’s denial of Stretton’s
motion for a continuance mischaracterizes crucial details and
omits others.
18
First, the case having “been continued twice” had nothing
to do with Randolph or Stretton. See id. Welch moved to con-
tinue the trial in December 2002 because he struggled to re-
ceive discovery material from Randolph’s prior counsel and
grand jury material from the Commonwealth. Then, in Febru-
ary 2003, Welch moved to continue the trial again because his
mother was ill and hospitalized. Up until the point he secured
the funds to hire Stretton, Randolph more-or-less was the on-
ly party eager to proceed to trial. See App. 616 (January pre-
trial hearing) (Randolph asking “[w]hat’s wrong with Febru-
ary” when Welch sought to delay the trial from January until
March); App. 622 (April pretrial hearing) (Randolph noting
that he “do[es] want [the start of trial] to be [as] prompt as
possible.”); App. 626 (May 1 pretrial telephone call) (Stretton
noting that “[Randolph] said he only wanted a short continu-
ance”).
Second, Randolph did not “wait[] until May 1, 2003, . . .
to apprise the trial court of his desire to have private counsel
represent him.” See Randolph, 873 A.2d at 1282. At the Janu-
ary 3, 2003, pretrial conference, for example, Randolph not
only expressed to the trial court his dissatisfaction with
Welch, see App. 614-17 (“Mr. Welch just doesn’t have my
best interest.”), he also asked the court whether he could
“hir[e] a second chair counsel.” App. 617. The court declined,
but the prosecutor made clear to Randolph that he could re-
tain private counsel if he “could afford to come to an ar-
rangement” with that counsel. Id. At that point, Randolph re-
minded the court that he could not hire private counsel be-
cause he was indigent. Id. Thus, no later than January 2003,
Randolph made clear to the court that he wanted to replace
his court-appointed counsel with another counsel (whether
court-appointed or private), and that the only thing holding
him back from hiring private counsel was money. To the ex-
tent the Commonwealth argues that Randolph should have in-
formed the trial court earlier that he planned to retain Stretton,
there was nothing to report to the trial court because Ran-
dolph did not secure the funds to hire Stretton until the week
before trial. Indeed, the day after Randolph informed Stretton
19
that he could pay his retainer, Stretton attempted to enter his
appearance and moved to continue the trial.
Third, the trial court did not give Stretton “the opportunity
to participate” in Randolph’s trial, nor was it “willing to ac-
commodate his schedule.” See Randolph, 873 A.2d at 1282.
The day Stretton entered his appearance, he requested a one-
month continuance. When the trial court refused, Stretton
counteroffered with a request to delay trial by just a few days.
When the trial court refused again, Stretton then requested a
delay of just three hours. The trial court refused to grant even
that modest accommodation. The court’s obstinance is all the
more striking considering that pretrial discussions that day
took until 11:10 a.m.—just fifty minutes before the time
Stretton had requested. The Pennsylvania Supreme Court’s
decision does not acknowledge this sequence or even mention
the length of the continuance that Stretton ultimately sought.
Fourth, the trial court’s willingness to “allow [Stretton]
time to prepare following jury selection” could not have cured
a Sixth Amendment violation. See id. Jury selection is a criti-
cal stage of a defendant’s criminal proceeding. See Lewis v.
United States, 146 U.S. 370, 374 (1892) (“[W]here the in-
dictment is for a felony, the trial commences at least from the
time when the work of impanelling the jury begins.” (quota-
tion omitted)); see also Swain v. Alabama, 380 U.S. 202, 219
(1965) (noting that because voir dire allows for peremptory
challenges, it is “a necessary part of trial by jury”), overruled
on other grounds by Batson v. Kentucky, 476 U.S. 79, 100
n.25 (1986). Further, jury selection is the primary means by
which a defendant’s counsel (and the trial court) may enforce
the defendant’s right to be tried by a jury free from ethnic, ra-
cial, or political prejudice, or predisposition about the defend-
ant’s culpability. See Flowers v. Mississippi, 139 S. Ct. 2228,
2238-43 (2019). Finally, jury selection in a death penalty case
is particularly important. To select a death-qualified jury, a
defendant’s counsel must ascertain additional information not
relevant in a typical criminal case, like whether a potential ju-
ror would automatically impose the death penalty upon a
qualifying conviction. See Morgan v. Illinois, 504 U.S. 719,
20
731-32 (1992); see also Witherspoon v. Illinois, 391 U.S. 510,
519-23 (1968).
Fifth, the state supreme court failed to mention that the at-
torney-client relationship between Randolph and Welch had
eroded well before Stretton entered his appearance. Randolph
raised his dissatisfaction with Welch at each pretrial confer-
ence available in the record, including the one on the morning
of jury selection. By trial, the breakdown had become so se-
vere that Thomas had to act as an intermediary between Ran-
dolph and Welch. The trial court was not unconcerned by
Randolph’s protestations, but it refused to entertain Ran-
dolph’s requests for substitute appointed counsel, and never
provided Randolph a full opportunity to present the reasons
underlying the breakdown. See Martel v. Clair, 565 U.S. 648,
664 (2012); see also McMahon v. Fulcomer, 821 F.2d 934,
942 (3d Cir. 1987) (concluding that “when a defendant re-
quests substitution of counsel on the eve of trial,” the trial
court “must engage in at least some inquiry as to the reasons
for the defendant’s dissatisfaction with his existing attorney”
(quoting United States v. Welty, 674 F.2d 185, 187 (3d Cir.
1982))).
As the District Court concluded, “[o]nce the full panoply
of relevant facts is articulated, the Sixth Amendment counsel-
of-choice balancing becomes elementary.” Randolph, 2020
WL 2745722, at *10. We agree. The decision by the state trial
court to deny Stretton’s motion for a continuance prevented
Randolph from being represented by Stretton, his choice of
counsel. Because the state trial court offered no justification
for denying the continuance motion in this case, its decision
violated Randolph’s Sixth Amendment right to counsel of
choice.
The Sixth Amendment counsel-of-choice balancing test
weighs the defendant’s right to counsel of choice against suf-
ficiently countervailing reasons, like considerations of judi-
cial administration. Neither the state supreme court in its de-
cision nor the Commonwealth on appeal offers one such rea-
son. The state supreme court concluded that Randolph “wait-
21
ed” until the eve of trial “to apprise the trial court of his desire
to have private counsel represent him.” See Randolph, 873
A.2d at 1282. We already have discussed why this mischarac-
terizes the record. If the state supreme court meant to imply
that Randolph dallied to gain a strategic advantage, as the
Commonwealth suggests on appeal, see Appellant Br. 15 (ar-
guing that “Randolph was playing games with scheduling”),
we disagree. Throughout the pretrial months, Randolph was
eager to get to trial and resisted each delay. Randolph an-
nounced his hiring of Stretton as soon as he had the money to
hire him, and Stretton’s final request for a delay was mod-
est—he sought to postpone the beginning of jury selection by
only three hours.
The Pennsylvania Supreme Court also concluded that it
gave Stretton the “opportunity to participate” in the trial,
Randolph, 873 A.2d at 1282, suggesting that the trial court
did not violate Randolph’s Sixth Amendment rights at all.
That is not so. It is true that the Sixth Amendment affords a
criminal defendant only the “fair opportunity to secure coun-
sel of his own choice.” Powell, 287 U.S. at 53. Here, howev-
er, the state trial court’s ruling prevented Stretton from pick-
ing Randolph’s jury, a critical stage of the criminal proceed-
ing, and the court was unwilling to be even minimally ac-
commodating to Stretton’s reasonable request for a minor de-
lay.
The Commonwealth’s remaining arguments are not per-
suasive. Given the short delay Stretton requested, the Com-
monwealth cannot seriously claim that “Stretton would have
had to build Randolph’s defense from the ground up which
would require an unreasonable delay.” Appellant Br. at 14-15.
And, for two reasons, it fares no better in contending that the
source of funds that were to pay for Stretton evaporated fol-
lowing Stretton’s entry of appearance. Appellant Br. at 19.
For one, the District Court concluded otherwise, see Ran-
dolph, 2020 WL 2745722, at *9-10 (“We set forth the follow-
ing additional facts indispensable to evaluating the constitu-
tional claim at issue[:] . . . . [T]he funds to hire [Stretton] did
22
not become available until April 29.”), and we must accept
that finding unless it is clearly erroneous. On this record, it is
not. So even if the Randolphs did not sell the family business,
Thomas testified that the family still was able to sell an asset
related to that business to raise the funds to pay for Stretton.
App. 596.
For another, whether Randolph secured the funding to
eventually pay Stretton is largely irrelevant. By May 1, 2003,
Stretton had agreed to represent Randolph and had entered his
appearance to do just that. Even if he wanted to withdraw rep-
resentation, he would have needed the leave of the trial court.
Pa. R. Crim. P. 120(C) (Dec. 2002); see also Commonwealth
v. Magee, 177 A.3d 315, 325-26 (Pa. Super. Ct. 2017); Com-
monwealth v. Ford, 715 A.2d 1141, 1145-46 (Pa. Super. Ct.
1998). More practically, a subsequent development concern-
ing a sale of a business or business asset could not have influ-
enced the trial court’s decision to deny Stretton’s motion for a
continuance.
For these reasons, we are satisfied that the decision of the
Pennsylvania Supreme Court involved an unreasonable appli-
cation of clearly established Sixth Amendment law. Said an-
other way, we are satisfied that no fairminded jurist could
disagree that the Pennsylvania Supreme Court’s decision con-
flicts with the Supreme Court’s Sixth Amendment jurispru-
dence. We acknowledge that those precedents grant trial
courts “wide latitude in balancing the right to counsel of
choice against the needs of fairness and against the demands
of its calendar.” Gonzalez-Lopez, 548 U.S. at 152 (internal ci-
tation omitted). But neither of those limitations on the right to
choice of counsel is relevant here. Granting Stretton’s three-
hour continuance would not have been unfair to the prosecu-
tion, nor would it have strained the state’s interest in the
“swift and efficient administration of criminal justice” or
permitted Randolph “to unreasonably clog the machinery of
justice or hamper and delay the state’s efforts to effectively
administer justice.” Randolph, 873 A.2d at 1282 (citations
and quotation marks omitted). It was just three hours.
23
We also acknowledge that the standards imbedded in
AEDPA are designed to be “difficult to meet.” Richter, 562
U.S. at 102. The grant of a writ of habeas corpus is strong
medicine, and it implicates concerns of federalism, comity,
and finality. But if the Sixth Amendment’s guarantee to one’s
counsel of choice is to mean anything, it must mean that a
criminal defendant may select and retain the counsel of his
choice, and the trial court must make every reasonable ac-
commodation to facilitate that representation, provided that
the selection and retention of that counsel will not substantial-
ly prejudice the prosecution or significantly impair the trial
court’s ability to dispense criminal justice.3
3
The Commonwealth makes two additional arguments. Nei-
ther is persuasive. First, it argues that the District Court’s ha-
beas analysis erroneously relied on United States v. Gonzalez-
Lopez, 548 U.S. 140 (2006), a case not decided until after the
Pennsylvania Supreme Court affirmed Randolph’s convic-
tions on direct appeal. Appellant Br. 24-27. Not so. In its
opinion, the District Court discussed Gonzalez-Lopez but
made clear that the case “was decided in 2006 and thus does
not inform the ‘clearly established’ federal law existing at the
time of Randolph’s trial.” Randolph, 2020 WL 2745722, at
*9 n.7. Instead, the District Court “rel[ied] on Gonzalez-
Lopez merely for its affirmation of prior, clearly held Su-
preme Court jurisprudence.” Id. That is correct. The right to
counsel of one’s choice has been firmly embedded in our
constitutional structure for nearly a century, see, e.g., Powell,
287 U.S. at 53, and the District Court’s citations to more re-
cent decisions served only to call attention to the continued
vitality of that principle. Second, the Commonwealth argues
that Randolph waived (or forfeited) any Sixth Amendment
right he is now claiming. Appellant Br. 27-34. Once again,
we disagree. Any Sixth Amendment waiver must be knowing,
voluntary, and intelligent, or preceded by conduct that clearly
implies that the defendant wishes to waive a particular com-
ponent of the right. Moreover, to effect a Sixth Amendment
waiver, a trial court must ensure—typically through a collo-
quy with the defendant—that the decision by the defendant
“is intelligently and competently made.” Welty, 674 F.2d at
187. Neither of those prerequisites were met here.
24
III. CONCLUSION
Few would dispute that “the most important decision a de-
fendant makes in shaping his defense is his selection of an at-
torney.” United States v. Laura, 607 F.2d 52, 56 (3d Cir.
1979). For those able to secure representation in a criminal
case independent of a court appointment, a fair opportunity to
select and retain one’s choice of counsel is not just a boon, it
is a right protected by the Sixth Amendment. Powell, 287
U.S. at 53. One’s right to choice of counsel is not without
limits. Trial courts retain certain discretion to balance that
right with the exigencies of administering criminal justice.
But however broad a court’s discretion may be, it is not broad
enough to excuse the Sixth Amendment violation that oc-
curred here. We hold that the state trial court’s error violated
Randolph’s Sixth Amendment right to counsel of choice, that
the Pennsylvania Supreme Court’s decision holding otherwise
was unreasonable under AEDPA, and that this violation is not
subject to harmless-error analysis. Gonzalez-Lopez, 548 U.S.
at 152. Further, because the Pennsylvania Supreme Court’s
decision was unreasonable in its application of federal law,
we need not reach whether its decision was based on an un-
reasonable determination of the facts.
The judgment of the District Court therefore will be af-
firmed, and the case will be remanded for the District Court
to issue a writ of habeas corpus.
25