Remand for evidentiary hearing on trial counsel's ineffectiveness regarding co-defendant's statements to a psychiatrist being used for their truth against defendant

In Lambert v. Warden, 2017 WL 2784960 (June 28, 2017), http://www2.ca3.uscourts.gov/opinarch/161209p.pdf, the Third Circuit held that an error by a habeas petitioner’s post-conviction counsel excused the procedural default of his claim that trial counsel was ineffective, see Martinez v. Ryan, 132 S.Ct. 1309 (2012), and remanded for an evidentiary hearing. This case proceeded through trial in Pennsylvania, direct appeal, habeas petition in Pennsylvania (PCR), habeas petition in federal court under 28 U.S.C. § 2254, and was before the Third Circuit on a certificate of appealability. Thus, federal review of state court determinations was examined under AEDPA’s “deferential standard of review.”

The Third Circuit remanded for an evidentiary hearing on trial counsel’s ineffectiveness on not asking for a limiting instruction to protect Lambert’s Confrontation Clause rights. Lambert’s co-defendant had introduced a psychiatric expert to explain he had voices in his head at the time of the murders and so did not have the required specific intent. While a statement that Lambert handed the co-defendant a gun was redacted, there was no limiting instructions that the co-defendant’s statements could not be used against Lambert. In closing, the prosecutor argued that those out-of-court statements helped prove Lambert’s guilt. Ineffective assistance of counsel could not be raised until PCR and PCR attorneys filed no-merit letters explaining the statements were party admissions. The Third Circuit held that the co-defendant's statements to the psychiatrist were testimonial. Lambert need not prove the primary purpose of recording the co-defendant's statements was to accuse him of a crime. In the context of a joint trial, it is enough to show the co-defendant's statements were made for the primary purpose of substituting for his in-court testimony about the crime. The Circuit also held (1) the trial-ineffectiveness claim had some merit, reasonable jurists could find that the prosecutor’s closing arguments relied on the truth of the co-defendant’s statement to a psychiatric expert to draw conclusions about the defendant’s intent in his co-defendant’s plan; and (2) PCR counsel was ineffective for not raising it, thus excusing under Martinez the default of not raising an ineffectiveness of counsel claim.

However, the double layer of deference under AEDPA and Jackson v. Virginia, 443 U.S. (1979) (light most favorable to government) led the Court to deny Lambert’s sufficiency claim. The Third Circuit could not conclude that it was “objectively unreasonable” for the Pennsylvania Superior Court to decide Lambert was guilty of the crimes.