and 22-2076 EDDIE WILLIAMS v. Superintendent Greene Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 22-2053 and 22-2076
EDDIE WILLIAMS,
Appellant in No. 22-2076
v.
SUPERINTENDENT GREENE SCI;
ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY LEBANON COUNTY,
Appellants in No. 22-2053
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-20-cv-00908)
District Judge: Honorable Robert D. Mariani
________________
Argued November 9, 2023
Before: RESTREPO, SCIRICA, and SMITH, Circuit Judges
(Filed: August 13, 2024)
________________

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2
Brian L. Deiderick [ARGUED]
Office of the District Attorney
County of Lebanon
400 S. 8th Street, Rm. 11
Lebanon, PA 17042
Ronald Eisenberg
Pennsylvania Office of Attorney General
1600 Arch Street, Ste. 300
Philadelphia, PA 19103
Counsel for Appellants in No. 22-2053
Michael Wiseman [ARGUED]
Wiseman & Schwartz, LLP
718 Arch Street, Ste. 702
Philadelphia, PA 19106
Counsel for Appellant in No. 22-2076
__________
OPINION OF THE COURT
__________
RESTREPO, Circuit Judge.
The framers drafted the Bill of Rights to contain broad
principles curbing the powers of our federal government. See,
e.g., U.S. Const. amend. V. They also included more
particularized rules to safeguard individual liberty like the
Sixth Amendment, which defends against unjustified

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deprivations of life and liberty1 by mandating that the
government afford several specific procedural protections to
the criminally accused.2 This appeal involves one such
guarantee: an accused person’s right “to be confronted with the
witnesses against [them]” pursuant to the Confrontation Clause
of the Sixth Amendment.
In 2015, the Commonwealth of Pennsylvania
prosecuted Eddie Williams for a series of crimes related to an
1 See, e.g., Singer v. United States, 380 U.S. 24, 31
(1965) (“The [jury trial] clause was clearly intended to protect
the accused from oppression by the [g]overnment . . . .”
(citation omitted)).
2 The Supreme Court has applied all but one of the
Sixth Amendment’s protections to the states through the Due
Process Clause of the Fourteenth Amendment. See In re
Oliver, 333 U.S. 257, 272–74 (1948) (right to a public trial;
right to notice of accusations); Gideon v. Wainwright, 372 U.S.
335, 342, 345 (1963) (right to counsel); Pointer v. Texas, 380
U.S. 400, 403 (1965) (right to confront hostile witnesses);
Parker v. Gladden, 385 U.S. 363, 364 (1966) (right to an
impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 223
(1967) (right to a speedy trial); Washington v. Texas, 388 U.S.
14, 17–19 (1967) (right to compulsory process to obtain
witness testimony; right to confront favorable witnesses). The
Supreme Court has not yet ruled on the Vicinage Clause, but
we have assumed “for the purposes of discussion, without
expressing any views upon the matter, that the state-and-
district guarantee is so closely related to the purpose of the
jury-trial guarantee that it is applicable to the states.” Zicarelli
v. Gray, 543 F.2d 466, 479 (3d Cir. 1976).

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4
alleged dispute over illegal drug profits that killed one person
and seriously injured another. A jury returned a guilty verdict
on all twenty counts, and the trial judge sentenced Mr.
Williams to life imprisonment, plus a term of 21.5 to 47 years.
But at trial, Mr. Williams’s judge twice read a non-testifying
codefendant’s Criminal Information to the jury in violation of
the Sixth Amendment. Mr. Williams’s attorney’s
constitutionally ineffective response only made matters worse.
These two interrelated injuries each justified the District
Court’s decision to grant habeas relief to Mr. Williams. After
all, for our Constitution’s liberty-ensuring principles to have
any strength, they must, like a muscle, be used correctly,
consistently, and forcefully. For the following reasons, we will
affirm.
I
A decade ago, law enforcement saw Rick Cannon,
Akeita Harden, and Mr. Williams leave the apartment complex
in Lebanon, Pennsylvania, where Marcus Ortiz was killed, and
Keith Crawford was grievously wounded—both by gunshots
to the head. Arriving at the scene moments after the gunshots
were reported, the responding patrol officer observed Mr.
Williams and Mr. Cannon enter a vehicle driven by Ms.
Harden. A car chase ensued, and all three suspects eventually
abandoned the vehicle to flee on foot. Law enforcement
apprehended Mr. Cannon and Ms. Harden that day, and Mr.
Williams seven months later.
In July 2015, Mr. Cannon pleaded guilty to a twenty-
count Criminal Information, which included homicide and
attempted homicide charges, aggravated assault, robbery,
possessing controlled substances with intent to deliver, two
firearms charges, flight to avoid arrest, and conspiracy charges

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related to each. Nine of those charges named Mr. Williams as
a coconspirator. Meanwhile, Mr. Williams was charged with
the same twenty offenses as Mr. Cannon and proceeded to a
joint trial with Ms. Harden in October 2015.
Here marks the start of our controversy. During Mr.
Williams’s attorney’s opening statement, he stated:
Second thing that will make this case a little bit
easier for you is that there’s one guy who hasn’t
really been mentioned. . . . That guy’s name is
Rick Cannon. The reason that Mr. Cannon is so
pivotal is because he’s already said that he did
this. He wrote down on a piece of paper under
oath, yes, I killed that man. He stood in this very
courtroom, put up his hand and took an oath and
told Judge Kline, yes, I killed that man. He
admitted that he killed him. Rick, we already
know for an absolute fact that Rick Cannon
killed the man.
Supp. App’x 121. The Commonwealth did not object
contemporaneously, but, after opening statements concluded,
explained at sidebar that it “[took] exception” to defense
counsel’s opening because it mischaracterized the facts. Supp.
App’x 127; see also id. at 128 (“I think it’s a
mischaracterization of the facts to say that we know for a fact
that Rick Cannon is the person that pulled the trigger . . . .”). In
reality, the homicide count in Mr. Cannon’s Criminal
Information only read: “In that the Defendant, acting as a
principal and/or accomplice[,] . . . did fire a gun at the victim
striking him with a bullet.” Supp. App’x 132.

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As a “curative instruction,” the trial court recommended
“read[ing] into the record what Mr. Cannon pled guilty to” as
that would “clear[] the air on the matter.” Supp. App’x 129.
The court explained that it thought it “fair” for the jury to hear
that Mr. Cannon “pled [guilty] as a principal or an accomplice
as well.” Supp. App’x 130. From there, the scope of what was
to be read increased:
THE COURT: I think in fairness, because there’s
so much here, I know [Mr. Cannon is] on appeal,
but I sentenced him, and I’ll say he was
sentenced after that. Okay. I’m going to read
each one.
[DEFENSE COUNSEL]: Just Count 1 you mean
or you want to read the whole thing?
THE COURT: I think I need to. . . . Does
anybody have an objection?
[COMMONWEALTH]: He pled to everything.
THE COURT: He pled to everything. It will take
a minute or two, but it’s going to clear the air in
terms of the opening.
[DEFENSE COUNSEL]: I have no problem
with that.
Supp. App’x 130–31. Having decided to read the entirety of the
Criminal Information rather than just the homicide count, the
trial court then addressed the jury:

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At a sidebar there was an objection made to
certain characterization[s] of what the District
Attorney knew or [did] not kn[o]w about Rick
Cannon, and all parties have agreed that Rick
Cannon pled guilty before this jurist. I took the
guilty plea and sentenced him.
So to make it perfectly clear to the jury what he
did and what he alleged he pled guilty to, I’m
going to read the entire [Criminal] Information
concerning Rick Cannon, and I want you to just
slowly listen carefully to it as I go through. All
Counsel has agreed that he pled guilty to all of
these charges, and I sentenced him thereafter.
The amount of sentence is not a relevant factor
here, but the fact that he pled guilty to these [is a
relevant factor]. So take your time, and we will
go through it.
Supp. App’x 131 (emphasis added). The trial court proceeded
to read aloud the entirety of Mr. Cannon’s twenty-count
Criminal Information. Nine charges in Mr. Cannon’s Criminal
Information specifically named Mr. Williams as a
coconspirator.3 For instance, Count 5 read:
3 The nine charges naming Mr. Williams included:
Count 4, Criminal Conspiracy, Violation of the Drug Act;
Counts 5 and 6, Criminal Conspiracy, Criminal Homicide;
Counts 9 and 10, Criminal Conspiracy to Commit Aggravated
Assault; Counts 13 and 14, Criminal Conspiracy, Aggravated
Assault; Count 17, Criminal Conspiracy to Commit Robbery;
and Count 19, Criminal Conspiracy to Commit Flight to Avoid
Apprehension.

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Count 5: Criminal Conspiracy Criminal
Homicide . . . In that the Defendant, acting as a
principal and/or accomplice, with the intent of
promoting or facilitating the commission of the
crime of Criminal Homicide, unlawfully did
agree with AKEITA HARDEN and/or EDDIE
WILLIAMS, that they or one or more of them
would engage in conduct which constitutes such
a crime, or an attempt or solicitation to commit
such a crime, and did an overt act in the
pursuance thereof, the Defendant did fire a gun
at MARCUS ANTONIO ORTIZ striking him
with a bullet.
App’x 36 (emphasis added).
This was not the last time Mr. Cannon’s Criminal
Information was raised during Mr. Williams’s trial. Both
defense counsel and the Commonwealth made it an issue in
their closing arguments. First, defense counsel argued:
Rick Cannon shot Mr. Crawford, and he shot Mr.
Ortiz, and we know that for one reason, because
he, himself, said he did it. The Judge read to you
the charges that Mr. Cannon pled guilty to, and
I’m going to just read one of them to you, the
first one, the most important one, Criminal
Homicide.
That the Defendant it does say acting as a
principal and/or accomplice, which is standard in
this thing, unlawfully, intentionally, knowingly,
recklessly or negligently did cause the death of

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another human being, namely Marcus Ortiz, to
wit . . . did cause the death of Marcus Ortiz, that
is to say, the Defendant did fire a gun at the
victim striking him with a bullet.
Mr. Cannon came into this courtroom right here
and stood right over here. He put up his hand. He
faced – he looked Judge Kline right in the eye,
and he said, “I did it. That’s what I did.” And you
know, when you give a plea, the Judge, the job
of the Judge is to make sure you know what
you’re doing and you’re doing it voluntarily, and
Judge Kline did his job. He made sure he knew
what he was talking about and knew that he was
doing it voluntarily. There’s a long series of
questions that go on with that, and that was
performed in this case. So we know for one thing
that Mr. Cannon already pled guilty to killing
Marcus Ortiz.
App’x 53–54. The Commonwealth responded in its closing by
telling the jury:
Now, I want to talk to you about something else,
and I’ve got a great deal of respect for both
Defense Counsel; but I’m going to suggest that
there’s some disingenuous comments being
made up here previously. You heard from
[defense counsel] that all the evidence has to
come from up there, not from down here, from
that stand. Told you that multiple times, and then
stands down here and says, [“]We know for a fact
Rick Cannon pulled the trigger.[”] Did that come

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from the stand? It didn’t. It comes from him
telling you that. We don’t know that for a fact.
That has never been proven or said anywhere in
this courtroom despite what he says to you, and
it’s disingenuous to say otherwise.
What we know is Rick Cannon pled guilty as a
principal or accomplice to these crimes. He
owned his share of this, okay; but if you want to
ascribe great value to Rick Cannon’s guilty plea,
the next part of that disingenuousness was he
didn’t tell you everything about what Rick
Cannon pled guilty to. He told you the part he
wanted you to hear because if you are going to
ascribe any importance to Rick Cannon pleading
guilty as a principal or an accomplice to the
homicide and the shooting, then you better
ascribe that same importance to this. Rick
Cannon pled guilty to Criminal Conspiracy with
Akeita Harden and Eddie Williams to commit
homicide. So if they want you to ascribe
importance to one, you got to follow along with
the other.
App’x 54 (emphasis added).
The jury would hear about the Criminal Information
that named Mr. Williams as a coconspirator yet another time
after it asked, about an hour and a half into deliberations, for
“the stipulation as to what Rick Cannon pled guilty to.” App’x
44. With the agreement of all counsel, the trial judge reread
each count. The jury then found Mr. Williams guilty of all
twenty charges, including murder in the first degree.

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After denial of his direct appeal, Mr. Williams filed a
Post-Conviction Relief Act (PCRA) petition in July 2017,
arguing that his trial counsel rendered ineffective assistance for
“deliberately inform[ing] the jury that [Mr. Cannon] pled
guilty, . . . thus allowing the jury to hear that he pled guilty.”
Supp. App’x 77. The PCRA court found that Mr. Cannon’s
Criminal Information “never specifically or inferentially
identifie[d] [Mr. Williams] in the role of principal or
accessory” and therefore did not violate the Confrontation
Clause. Supp. App’x 88. The Superior Court affirmed the
PCRA court, and the Pennsylvania Supreme Court denied Mr.
Williams’s Petition for Allowance of Appeal on March 24,
2020.
In June 2020, Mr. Williams filed the petition at issue
pursuant to 28 U.S.C. § 2254. He alleged five instances of
ineffective assistance of counsel (IAC), including defense
counsel’s failure to object to the reading of Mr. Cannon’s
Criminal Information. Based on a review of the record, the
Magistrate Judge prepared a Report and Recommendation
(R&R). The R&R recommended denying Mr. Williams’s
petition with respect to his Confrontation Clause claims
because the Criminal Information “did not describe the factual
basis for the plea or serve a prosecutorial function. [It was] also
not created for the purpose of being introduced at trial.”
Williams v. Superintendent, SCI Greene, No. 1:20-cv-0908,
2021 WL 8315910, at *23 (M.D. Pa. Nov. 15, 2021). Thus, the
R&R concluded that the Criminal Information was neither
testimonial, nor did it violate the Sixth Amendment, and trial
counsel was therefore not ineffective for failing to object.
Mr. Williams filed objections to the R&R. The District
Court sustained only his objections to the Confrontation Clause

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issue and the related IAC claim, concluding that Mr. Williams
was indeed entitled to relief, and vacated his conviction and
sentence. See Williams v. Superintendent, SCI Greene, No.
3:20-CV-908, 2022 WL 1321128, at *1 (M.D. Pa. May 3,
2022). The Commonwealth timely appealed the District
Court’s decision, and Mr. Williams timely cross-appealed.4
II
The District Court had jurisdiction under 28 U.S.C. §
2254, and we have appellate jurisdiction under 28 U.S.C. §§
1291 and 2253. “Because the District Court granted habeas
without an evidentiary hearing, we review de novo.” Maple v.
Albion, 19 F.4th 570, 571 (3d Cir. 2021). We review the state
court’s determinations on the merits for a decision “contrary
to” or an “unreasonable application” of clearly established
Supreme Court precedent. 28 U.S.C. § 2254(d)(1). An
unreasonable application of federal law occurs where “the state
court unreasonably applies the correct legal rule to the
particular facts, unreasonably extends a legal principle to a new
context, or unreasonably refuses to extend the principle to a
new context where it should apply.” McMullen v. Tennis, 562
F.3d 231, 236 (3d Cir. 2009). There is a “presumption of
correctness” for determinations of a factual issue made by the
state court and the petitioner has the burden of rebutting said
presumption by “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
4 A panel of this Court granted Mr. Williams’s request
for a certificate of appealability on the arguments he raised on
cross-appeal. Because we affirm the District Court’s grant of
relief, we need not address these arguments.

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Meanwhile, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Additionally, federal habeas relief must only be
granted where the petitioner demonstrates that the trial error
“had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)).
III
Under the Sixth Amendment, all those criminally
accused “shall enjoy the right . . . to be confronted with the
witnesses against [them].” U.S. Const. amend. VI. As a result,
the Confrontation Clause prohibits the “admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). Here, there is no
dispute that Mr. Cannon was unavailable for trial and that Mr.
Williams had no prior opportunity to cross examine him. The
parties only disagree on whether Mr. Cannon’s Criminal
Information, as it was read to the jury, was testimonial.5 It was.
5 The Commonwealth seeks to avoid the substance of
this case by arguing that 1) Mr. Williams’s petition is untimely
because he somehow waived his opportunity to take advantage
of the prisoner mailbox rule by failing to assert it before the
PCRA court and 2) Mr. Williams failed to exhaust his
Confrontation Clause claim when he did not include the issue
in his allocatur request to the Pennsylvania Supreme Court. As

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“Testimony” is typically a “solemn declaration or
affirmation made for the purpose of establishing or proving
some fact.” Id. at 51 (citation omitted). But “statements made
under circumstances that would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial are [also] testimonial.” United States v.
Hinton, 423 F.3d 355, 360 (3d Cir. 2005). Such statements
include “material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially; extrajudicial
statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,
310 (2009) (omission in original) (quoting Crawford, 541 U.S.
at 51–52); see also United States v. Moreno, 809 F.3d 766, 773-
74 (3d Cir. 2016). Accomplice confessions to the authorities
and plea allocutions are among the statements the Supreme
Court has enumerated as “plainly testimonial.” Crawford, 541
U.S. at 63–64.
The trial court’s presentation of Mr. Cannon’s Criminal
Information operated, for all intents and purposes, as a plea
allocution. In fact, at Mr. Cannon’s actual plea allocution, the
court read aloud each charge in the Criminal Information and
asked him if he wished to enter a guilty plea to each. When Mr.
Cannon answered affirmatively, he adopted, as his own, the
statements read from the Criminal Information. To put it
another way, the allegations related to charges set forth in the
Criminal Information became Mr. Cannon’s testimony. See,
neither claim has merit, we will proceed to the constitutional
issues raised by this appeal.

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e.g., United States v. Porter, 933 F.3d 226, 229 (3d Cir. 2019)
(“Courts have long understood a guilty plea to be ‘a confession
of all the facts charged in the indictment, and also of the evil
intent imputed to the defendant.’” (quoting Class v. United
States, 138 S. Ct. 798, 804 (2018)). It was Mr. Cannon’s
admission of guilt to those charges, together with the
description of the charges themselves, as recited by the court,
that were therefore testimonial. See Crawford, 541 U.S. at 64
(collecting cases illustrating “plainly testimonial statements,”
including plea allocutions).
So it was in effect Mr. Cannon’s plea that was presented
to the jury as “what [Mr. Cannon] did” and what “[a]ll counsel
. . . agreed that he pled guilty to.” Supp. App’x 131. After
reading all twenty counts, nine of which named Mr. Williams
as a coconspirator, the court reiterated that “to each of those
Counts [Mr. Cannon] pled guilty.” Supp. App’x 138. Mr.
Cannon’s Criminal Information, in effect, became a plea
regardless of whether the trial court read the charges from the
plea allocution transcript or from the document itself. Indeed,
“[t]he trial judge telling the jury that [Mr.] Cannon ‘pled guilty
to all of these charges and I sentenced him thereafter’ would
surely be understood by the jury as [Mr.] Cannon having
admitted guilt, thus bringing the [c]ourt’s acknowledgement of
[his] statement of guilt so near to the introduction of a
confession as to make the two indistinguishable.” Williams,
2022 WL 1321128, at *19.
The Criminal Information’s testimonial and
confessional nature puts it squarely in the territory of Bruton,
where the Supreme Court held that an accused person is
deprived of their Sixth Amendment right to confrontation when
a non-testifying codefendant’s confession naming them as a

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participant in the crime is introduced at their joint trial, despite
an instruction that the jury consider the statement only as to the
codefendant. Bruton v. United States, 391 U.S. 123, 135–36
(1968); see also Kirby v. United States, 174 U.S. 47, 54–55
(1899) (in prosecution for receipt of stolen property,
accomplices’ guilty pleas inadmissible to prove that property
received by the accused was “actually stolen from the United
States” because the accused lacked opportunity to cross
examine). The Supreme Court refined the Bruton rule in
Richardson v. Marsh, recognizing that “the Confrontation
Clause is not violated by the admission of a non-testifying
codefendant’s confession with a proper limiting instruction
when . . . the confession is redacted to eliminate not only the
defendant’s name, but any reference to his or her existence,”
481 U.S. 200, 211 (1987), and has since qualified Richardson
such that the use of “neutral references to some ‘other person’”
as opposed to “an obvious blank or the word ‘deleted’” is not
“directly accusatory” and thus does not violate Bruton. Samia
v. United States, 143 S. Ct. 2004, 2010, 2017 (2023). No such
redaction or modification occurred here.
As Bruton wisely warned, “[a] jury cannot segregate
evidence into separate intellectual boxes. It cannot determine
that a confession is true insofar as it admits that A has
committed criminal acts with B and at the same time
effectively ignore the inevitable conclusion that B has
committed those same criminal acts with A.” 391 U.S. at 131
(internal quotation marks omitted). So, too, does the trial
court’s presentation of Mr. Cannon’s guilty plea to crimes
involving Mr. Williams present the “inevitable conclusion”
that Mr. Williams committed the same or related criminal acts,
especially with the trial court’s endorsement of the Criminal
Information as “mak[ing] it perfectly clear to the jury what

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[Mr. Cannon] did.” Supp. App’x 131. For these reasons, the
reading of the Criminal Information to the jury as evidence of
what Mr. Cannon pleaded guilty to violated Mr. Williams’s
right to confront the witness against him. It was “contrary to”
clearly established Supreme Court precedent, 28 U.S.C. §
2254(d)(1), which has specifically named plea allocutions and
confessions as “plainly testimonial.” Crawford, 541 U.S. at
63–64. We hold that no “fairminded jurist[] could disagree.”
Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at
664).6
IV
The aforementioned Bruton violation occurred in
response to, and was later encouraged by, Mr. Williams’s own
trial attorney. The District Court found that defense counsel’s
misrepresentation of the facts surrounding Mr. Cannon’s plea,
coupled with his failure to object to the reading of Mr.
6 Indeed, though not part of the established precedent
at the time of Mr. Williams’s PCRA petition, the Supreme
Court’s decision in Hemphill v. New York reinforces our view.
595 U.S. 140 (2022). Hemphill’s facts are surprisingly similar
to those we are faced with, though arguably less egregious
because the plea allocution read at that trial did not name the
accused. Id. at 144–45. There the Court held that a trial court’s
admission of portions of a non-testifying third party’s plea
allocution transcript to correct a “misleading impression”
created by the defense attorney’s opening statement violated
the Confrontation Clause. Id. at 143–44. The Court explained
that the Sixth Amendment “admits no exception for cases in
which the trial judge believes unconfronted testimonial hearsay
might reasonably be necessary to correct a misleading
impression. Courts may not overlook its command, no matter
how noble the motive.” Id. at 154.

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Cannon’s Criminal Information on two occasions, amounted to
ineffective assistance of counsel. See Williams, 2022 WL
1321128, at *13–16. We agree.
The test for ineffective assistance of counsel is a well-
settled and firmly established one containing two components.
“First the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id.
Because Strickland’s test is “clearly established
[f]ederal law,” Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.
2010) (citation omitted), we consider whether the state court
decision involved an unreasonable application of Strickland or
an unreasonable determination of the facts. 28 U.S.C. §
2254(d).7 We apply a doubly deferential standard of review to
a Strickland claim, Knowles v. Mirzayance, 556 U.S. 111, 123
(2009), though whether “double deference” applies to
prejudice as well as performance is an open question in our
7 Pennsylvania employs a three-pronged test for
ineffective assistance claims. See Commonwealth v. Pierce,
527 A.2d 973, 975-77 (Pa. 1987). This test is not contrary
to Strickland. See Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir.
2005). “Thus, under § 2254(d)(1), the relevant question here is
whether the [state court’s] decision involved an unreasonable
application of Strickland.” Id.

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Circuit. See Mathias v. Superintendent Frackville SCI, 876
F.3d 462, 477 n.4 (3d Cir. 2017). “The question ‘is not whether
a federal court believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)).
A
An attorney’s performance is deficient when it falls
below “an objective standard of reasonableness.” Strickland,
466 U.S. at 688. Here the PCRA court determined that Mr.
Williams’s ineffective assistance claim was without merit.
First, the PCRA court explained that a motion in limine to
redact the Criminal Information was not guaranteed to succeed.
Next, it concluded that although the trial strategy was not
successful, it did not amount to ineffective assistance where
counsel “had a reasonable basis for referencing [Mr.] Canon’s
guilty plea to the homicide” as a third-party culpability
defense. Williams, 2022 WL 1321128, at *13 (emphasis
added). Finally, the PCRA court determined that Mr. Williams
“failed to show that an alternative offered a substantially
greater prospect of success.” Id. We hold these determinations
to reflect an unreasonable application of Strickland for the
following reasons.
We first note that “strategic choices made as a result [of
substantial investigations into plausible lines of defense] ‘will
seldom if ever’ be found wanting.” Strickland, 466 U.S. at 681.
But defense counsel’s strategic choice to pursue a third-party
culpability defense is not the error here. Rather it was the
execution of that strategy by knowingly, “patently
misrepresent[ing] [Mr.] Cannon’s guilty plea” to homicide in

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his opening statement and then allowing the trial court, without
objection, to read Mr. Cannon’s Criminal Information in its
entirety that was ineffective. Williams, 2022 WL 1321128 at
*14.8 Failure to raise a meritorious objection can constitute
deficient performance, especially when the Commonwealth
has not “provided any strategic explanation for trial counsel’s
failure” “[n]or are we able to identify one.” Preston v.
Superintendent Graterford SCI, 902 F.3d 365, 382 (3d Cir.
2018); see also Lambert v. Warden Green SCI, 861 F.3d 459,
471 (3d Cir. 2017) (“We recognize that the right of
confrontation and cross-examination is an essential and
fundamental requirement of the kind of fair trial which is this
country’s constitutional goal. Thus[,] a good argument exists
that [Mr.] Lambert presents a substantial claim that it would be
objectively unreasonable for trial counsel to allow the
Commonwealth to violate this right by failing to request a
limiting instruction pursuant to Richardson.” (citation and
internal quotation marks omitted)).
To “cur[e]” the misrepresentation, however, defense
counsel acquiesced to the trial court reading, not just the
criminal homicide charge to which Mr. Cannon pleaded guilty,
but the Criminal Information in its entirety, including nine
counts naming Mr. Williams as a coconspirator. Supp. App’x
129. The reading of those nine counts clearly violated Bruton.
And contrary to the PCRA court’s conclusions, defense counsel
likely would have prevailed had he objected to its reading,
moved to confine the reading to just the first count, or sought
8 We need not determine whether the initial
misrepresentation constituted error as Mr. Williams concedes
that he was not prejudiced by defense counsel’s opening
statement.

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a redaction of any information identifying Mr. Williams. Yet
we need not rule here on the adequacy of trial tactics that
defense counsel failed to employ. The PCRA court’s
determination that a motion to restrict the language of the
Criminal Information was not certain to succeed was a clear
misapplication of federal law, and counsel’s failure to object on
two occasions to the reading of the Criminal Information was
objectively unreasonable.
The PCRA court’s decision also hinged on “an
unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d).
It assumed the only charge that was read to the jury and that
was material to the court’s analysis is Count 1 of Mr. Cannon’s
Criminal Information. Indeed, we agree that reading only
Count 1, which did not identify Mr. Williams, would have
corrected the misrepresentation in defense counsel’s opening
statement. But reading the entire twenty-count Criminal
Information, nine counts of which named Mr. Williams as a
coconspirator, went far beyond clarifying for the jury that Mr.
Cannon pleaded guilty to Criminal Homicide as a principal
and/or accomplice.
To be clear, competent counsel need not be flawless and
“may not be faulted for a reasonable miscalculation or lack of
foresight or for failing to prepare for what appear to be remote
possibilities.” Harrington, 562 U.S. at 110 (emphasis added).
But Mr. Williams’s defense counsel did not reasonably
miscalculate the Commonwealth’s prosecution strategy to
introduce Mr. Cannon’s Criminal Information. At the PCRA
evidentiary hearing, he even admitted as much. See Supp.
App’x 360–61 (“In retrospect, I should have tried to redact the
information so to speak so as to have the homicide charge read

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but not the conspiracy charge read because the conspiracy
charge obviously implicates people other than Mr. Cannon.”
(emphasis added)). Instead, he had the opportunity to object to
or ask for a redaction of that Criminal Information but chose
not to. Moreover, the misrepresentation that the
Commonwealth sought correction of was defense counsel’s
statement that Mr. Cannon “told Judge Kline, yes, I killed that
man.” Supp. App’x 121. That mischaracterization relates to the
homicide charge and would have been cured by reading only
Count 1 of Mr. Cannon’s Criminal Information, which made
no reference to Mr. Williams. For defense counsel to allow the
other counts to be read without the opportunity to cross-
examine Mr. Cannon about Mr. Williams’s involvement in the
shootings was objectively unreasonable.
For these reasons, we hold that Mr. Williams satisfied
the deficiency prong of Strickland when his attorney failed to
object, request redactions, or request limiting instructions to
the trial court’s reading of Mr. Cannon’s entire Criminal
Information to the jury.
B
We next consider whether defense counsel’s failure to
object to the reading of the entire Criminal Information was
“so serious as to deprive [Mr. Williams] of a fair trial.”
Strickland, 466 U.S. at 687. Such prejudice exists when “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Because a reasonable probability is
one “sufficient to undermine confidence in the outcome,” id.,
the Strickland prejudice standard is not “stringent”—it is, in
fact, “less demanding than the preponderance standard.”
Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (citing Baker

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v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999)); see also Woodford
v. Visciotti, 537 U.S. 19, 22 (2002) (“[Strickland] specifically
rejected the proposition that [one] had to prove it more likely
than not that the outcome would have been altered.”).
The PCRA court concluded that Mr. Williams’s claim
lacked merit in part because “in light of the cumulative
evidence presented at trial, including the living victim’s
identification of [Mr. Williams], [it found] that [he had] failed
to show that an alternative offered a substantially greater
prospect for success.” Supp. App’x 88-89 (emphasis added).
This language addresses prejudice because it refers to the
weight and degree of other evidence in the record in
comparison to evidence of Mr. Cannon’s guilty plea. However,
it incorrectly quotes the Pennsylvania standard for
performance. See id. at 81 (“Where matters of strategy and
tactics are concerned, a finding that a chosen strategy lacked a
reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.”
(emphasis added) (quoting Commonwealth v. Spotz, 84 A.3d
294, 312 (Pa. 2014))). Thus, it is unclear whether the PCRA
court actually addressed prejudice under Strickland with
respect to the Criminal Information.
If the PCRA Court did not address prejudice, our review
of that issue would be de novo. See, e.g., Abdul-Salaam v. Sec’y
Pa. Dep’t of Corr., 895 F.3d 254, 269 (3d Cir. 2018) (“Because
the Commonwealth courts did not reach the prejudice prong of
the analysis, our review is de novo.”). But assuming arguendo
that it did address prejudice, our review is nonetheless de novo
because the standard it used was contrary to clearly established
federal law. See Williams v. Taylor, 529 U.S. 362, 405–06

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(2000) (declaring as contrary to Strickland a state court’s
rejection of an ineffective assistance claim “on the grounds that
the prisoner had not established by a preponderance of the
evidence that the result of his criminal proceeding would have
been different” (emphasis added)); Rogers v. Superintendent
Greene SCI, 80 F.4th 458, 464-65 (3d Cir. 2023) (holding as
contrary to federal law the state court’s requirement that
petitioner show “the outcome would have been different”);
Hummel v. Rosemeyer, 564 F.3d 290, 304-05 (3d Cir. 2009)
(similar). By requiring Mr. Williams to show a “substantially
greater prospect for success,” the PCRA court demanded a
higher standard than what Strickland requires, which is only “a
reasonable probability that . . . the result of the proceeding
would have been different.” Strickland, 466 U.S. 694.9
Our de novo review of the prejudice prong reveals the
following. First, in response to Mr. Williams’s counsel’s
9 To be sure, Pennsylvania’s “substantially greater
prospect” standard is appropriate for performance, since we
have repeatedly endorsed Pennsylvania’s three-part IAC test as
consistent with Strickland when properly applied. See, e.g.,
Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 391 (3d
Cir. 2020) (“This Court has repeatedly recognized that
Pennsylvania’s test for ineffective assistance of counsel is
consistent with the Supreme Court’s decision in Strickland
because it requires findings as to both deficient performance
and actual prejudice.” (internal quotation marks omitted)).
However, Strickland’s prejudice prong is “easier to fulfill” than
its performance prong and even “less demanding than the
preponderance standard.” McKernan v. Superintendent
Smithfield SCI, 849 F.3d 557, 567 (3d Cir. 2017) (internal
quotation marks omitted).

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decisions, the Commonwealth in its closing argument
encouraged the jury to draw the substantive inference that Mr.
Williams was guilty of conspiracy based on Mr. Cannon’s
admission despite there being insufficient direct evidence of an
actual agreement between Mr. Williams and Mr. Cannon to
commit the homicide. See Lambert, 861 F.3d at 472 (finding
Bruton error prejudicial where there was no direct evidence of
an agreement between the accused and an alleged
coconspirator and the prosecutor encouraged the jury to draw
inference of guilt based on a coconspirator’s statement); Brown
v. Superintendent Greene SCI, 834 F.3d 506, 521 (3d Cir. 2016)
(finding a Bruton violation prejudicial when “the unmasking
of [Mr.] Lambert happened during a part of the closing
arguments when the prosecutor was asking the jury to find
[Mr.] Garcia guilty”); see also Adamson v. Cathel, 633 F.3d
248, 261 n.12 (3d Cir. 2011) (suggesting that use of a statement
admitted in violation of Bruton “for their truth in order to
establish [defendant’s] guilt” is relevant to the harmless error
determination).
Second, the jury note requesting that the Criminal
Information be reread suggests that the jury was influenced by
Mr. Cannon’s plea during deliberations. See Heath v. Jones,
941 F.2d 1126, 1134 (11th Cir. 1991) (“Actual prejudice occurs
when the prejudice actually enters the jury box and affects the
jurors.”). Making matters worse, the jury requested to rehear
the Criminal Information shortly after commencing
deliberations and reached a verdict after only a few additional
hours of deliberation. Cf. Johnson v. Superintendent Fayette
SCI, 949 F.3d 791, 805 (3d Cir. 2020) (“holding that the length
of jury deliberations may be one consideration in assessing the
strength of the prosecution’s case”).

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Third, there are serious reliability concerns with much
of the Commonwealth’s trial evidence. The Commonwealth’s
primary witness, Mr. Crawford, was shot in the head and could
testify only by typing “yes” or “no” into a cell phone. Not only
does this raise serious concerns about Mr. Crawford’s
diminished capacity, his testimony itself was often equivocal.
For example, he could not remember whether Ms. Harden was
in or outside the apartment when he was shot. He also testified
inconsistently regarding who shot Mr. Ortiz and who removed
his watch and ring. His testimony was also inconsistent with
the Commonwealth’s own evidence: Mr. Crawford testified
that Mr. Ortiz was shot first, but the Commonwealth’s own
forensic DNA analyst testified that Mr. Ortiz “was the last
person shot” with the sole murder weapon. We also note that
any evidence of motive from Ms. Harden’s pretrial
statements—to the effect that Mr. Williams planned to rob and
kill Mr. Crawford—would be substantively inadmissible as to
his guilt.
Thus, considering the quality and not just the quantity
of the Commonwealth’s evidence, the introduction and
proliferation of Mr. Cannon’s Criminal Information is much
more likely to have had the prejudicial effect of “improperly
corroborating the[] less-than-credible [evidence], making it
more likely that the jury would set aside their doubts in favor
of a conviction.” Id. at 803-04 (finding prejudice where “the
prosecution’s two key witnesses were substantially impeached
and their testimony was contradicted through other witness
testimony” and thus the improperly admitted confession “gave
significant weight to [the less than credible] testimony that [the
accused] was the shooter and validated [a] dubious police
statement”); see Washington v. Sec’y Pa. Dep’t of Corr., 801
F.3d 160, 171 (3d Cir. 2015) (improperly admitted confession

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when “viewed in tandem” with coconspirator’s “less-than-
credible” statement had a “corroborative effect” that likely
affected the jury’s verdict, thus demonstrating actual
prejudice); see also Brown, 834 F.3d at 520 (testimony from
the Commonwealth’s primary witness “undercut his reliability
and usefulness” because “[b]y his own admission, he was
impaired from marijuana and Xanax” and “had a powerful
motive to implicate” the accused); Adamson, 633 F.3d at 261
(admission of improperly redacted/limited confession was not
harmless because “[t]here were no eyewitness statements
identifying [the accused] as taking part in the robbery, nor was
there any physical evidence tying him to the robbery”);
Vazquez v. Wilson, 550 F.3d 270, 282-83 (3d Cir. 2008) (Bruton
error was not harmless because the accused “never confessed
to being a shooter, and there was no witness at the trial who
said that he saw [him] fire a weapon” and so “although there
was evidence at trial incriminating [him] . . . , it was not so
compelling that it overcame the Bruton error”).
Cumulatively, these concerns lead us to believe that Mr.
Williams has successfully shown that the reading of Mr.
Cannon’s entire and unredacted Criminal Information had a
“substantial and injurious effect or influence in determining the
jury’s verdict,” Brecht, 507 U.S. at 637, satisfying Strickland’s
prejudice prong.
V
The judgment of the District Court will therefore
be affirmed, and the case will be remanded for the District
Court to issue a writ of habeas corpus.

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