PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
                ____________

                 No. 14-4506
                ____________


             PAUL MCKERNAN,
                        Appellant

                      v.

    SUPERINTENDENT SMITHFIELD SCI;
THE DISTRICT ATTORNEY OF THE COUNTY OF
             PHILADELPHIA;
 THE ATTORNEY GENERAL OF THE STATE OF
             PENNSYLVANIA



On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
   (D. C. Civil Action No. 2-06-cv-02118)
 District Judge: Honorable Norma L. Shapiro



           Argued on June 21, 2016
    Before: FISHER, GREENAWAY, JR. and ROTH,
                    Circuit Judges


             (Opinion filed: February 28, 2017)


Maria K. Pulzetti, Esquire            (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 Appellant

Joshua S. Goldwert, Esquire              (Argued)
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

                   Counsel for Appellees



              O P I N I ON OF THE COURT




*
 The Honorable D. Michael Fisher assumed senior status on
February 1, 2017.




                             2
ROTH, Circuit Judge:

        In this appeal, Paul McKernan contends that, because
of the egregious advice given him by his counsel, he was
deprived of the right to a fair trial before an impartial tribunal.
He asserts that the judge in his murder trial was so concerned
over what she considered to be “slanderous,” “hurtful,” and
“terrible things” written about her on a website that she lost
her ability to be impartial. He further asserts that his counsel,
unlike any competent counsel, failed to recognize this loss of
impartiality and, in doing so, deprived him of the effective
assistance of counsel that the Constitution guarantees. We
agree with the latter argument and, for this reason, we will
remand this case to the District Court with instructions to
grant McKernan’s petition for a writ of habeas corpus unless
within 60 days of the date of remand, the Commonwealth of
Pennsylvania shall decide to retry Paul McKernan.

                                I.

        In July 1998, after a bench trial in the Philadelphia
County Court of Common Pleas, McKernan was convicted of
first degree murder in the death of Mark Gibson. McKernan
and Gibson were former roommates. McKernan was found to
have killed Gibson with a baseball bat during an argument
outside McKernan’s home. A witness to the events, Joseph
Rodgers, did not see McKernan strike Gibson but did hear “a
loud thump,” after which he saw Gibson lying on the ground,
bleeding profusely. McKernan told Rodgers that he hit
Gibson in the chest, a statement contradicted by a defense
witness who testified that he saw McKernan hit Gibson in the
head.




                                3
       A medical examiner testified that Gibson died after
being hit behind the ear with a blunt instrument, such as an
aluminum baseball bat. McKernan admitted to hitting Gibson
with the bat but claimed that it was in self-defense and that
Gibson’s head injuries arose from the impact of Gibson
hitting his head on the curb. The trial judge, Judge Lisa
Richette, found McKernan guilty of first degree murder and
sentenced him to a mandatory sentence of life in prison
without the possibility of parole.

       On the second day of the bench trial, after the
Commonwealth had rested but before the defense had started
its case-in-chief, Judge Richette called the victim’s mother,
Beatrice Gibson, and his brother, David Gibson, into her
robing room, along with the assistant district attorney, Mark
Gilson, and defense counsel, Fred Harrison. McKernan was
not present for the ensuing meeting, but the meeting was
transcribed by the court reporter.

       It is difficult to convey in excerpts the inappropriate
nature of this lengthy conference. It is even more difficult to
understand why defense counsel Harrison failed to object to
the proceedings or to move for the judge’s recusal at any
point during the conference. Harrison himself noted in later
testimony that he had never before or since been part of a
similar conference.

         The judge began the conversation by saying that she
was “very disturbed” after finding a website that the Gibsons
had created, containing criticism of the judge.1 The judge
said to Mrs. Gibson that the site was “vicious and unfair” and

1
    J.A. at 249.




                              4
that the judge did not “want to hear this case if” Mrs. Gibson
was “unhappy with” her.2 The judge had a printed copy of
the website and read from portions of it. The website
described an ongoing controversy between the judge and the
actor Charlton Heston, who had criticized the judge as being
soft on crime and referred to her as “Let ‘em Loose Lisa.”
The judge read a passage from the website stating “Lisa
Richette is a bleeding heart judge that often sympathizes with
murderers and other violent criminals and gives them light
sentences,” which the judge characterized as “a total lie.”3
The judge then accused the Gibsons of writing “dreadful,
slanderous things about [her]” throughout the website.4

       Despite the judge’s anger caused by the website, she
sought the Gibsons’s approval of her actions in the trial. She
characterized the case as “a horrible, horrible murder,”5 told
the Gibsons that she “just want[ed] to make sure that you
folks are happy with me,”6 and told the assistant district
attorney she didn’t “want these people – they have already
been hurt enough, and I don’t want them to have this case
heard by a Judge in whom they have no faith.”7 She told the
Gibsons, “You’re very fortunate, I’ll tell you what, you have
a witness, you have Mr. Rodgers”8 because, “[m]any of these
murders occur with nobody willing to come forward and say I


2
  

at 253.
4
  

5
  

at 275.
7
  

8
  

                              5
saw it.”9 After being assured by the Gibsons that they were
“satisfied” with Judge Richette presiding over McKernan’s
trial, she concluded, “I don’t want to open the Daily News
tomorrow and read the usual B.S.”10


        Throughout this conversation, McKernan’s defense
counsel stood mute. Indeed, it was Assistant District
Attorney Gilson who eventually asked McKernan’s counsel if
he was concerned about the conference, to which Harrison
replied, “The only input I have is I guess I need to apprise
[McKernan] of what is going on.”11 After making this
statement, Harrison did not request that the meeting be
recessed, but rather left Gilson, the judge, and the Gibsons
alone together in the robing room while Harrison conferred
with his client. As Harrison left, the judge said, “Go ahead,
I’ll just talk to [the family] generally.”12

       In Harrison’s absence, David Gibson, the victim’s
brother, who was primarily responsible for creating the
offending website, offered to allow the judge to “red line”
anything she did not approve of from the site and write her
own thoughts about victimology, which David Gibson would
post in the judge’s “defense.”13 The judge agreed to do so.
The judge told Mrs. Gibson that she (the judge) would have
acted similarly if the same events had happened to her son,


9
  

10
   

at 283.
12
   

284.




                             6
noting that “we’re all mothers here.”14 She also told Mrs.
Gibson that they were “very lucky” that they were assigned
Mr. Gilson, the assistant district attorney, and that “Gilson is
one of the best D.A.s in the world.” The Gibsons then left the
judge’s chambers.15

       After conferring with McKernan, Harrison returned to
the robing room and told the judge and Gilson that his client
had “concerns” because the website said the judge was “a
lenient judge” and “the fact that you mentioned Mr. Rogers
and his testimony, he thinks that you may be constrained to
lean over backwards,” to prove Mrs. Gibson wrong and the
judge would not give McKernan a fair trial. 16 Gilson had the
same concerns. Harrison said that McKernan was unsure
what to do.17 Harrison indicated that he had advised
McKernan to continue before Judge Richette. He further
noted that he and Gilson believed what “might solve the
problem would be if we brought Mr. McKernan back and let
him talk to you just like you talked to” the victim’s family. 18

       McKernan was brought to the robing room where the
judge told him that she had discussed the website with the
victim’s family, that the family was now satisfied with her
because they had been assigned Mr. Gilson, and that the
victim’s family wanted the judge to continue to hear the
case.19 She told McKernan that the conversation was “not

14
   

15
   

at 287.
17
   

18
   

19
   

                               7
going to influence [her] thinking at all about this” and that she
would “listen to your side of the case very carefully and . . .
reach a verdict.”20 She also stated she would “try and pray to
God that I be fair to you.”21 Although McKernan stated that
he believed that the judge could be fair, Gilson seemed to
sense some doubts in McKernan’s demeanor, causing him to
ask the judge to allow McKernan more time to speak with
Harrison before continuing the colloquy.22

       After this second private conversation, Harrison stated
that he “had an opportunity . . . to speak with [his] client by
himself, and . . . indicated to him – reiterated to him what
Your Honor has said to him previously. Mr. McKernan has
indicated to me that he thinks that you can be fair.”23 Gilson
asked whether anyone had forced McKernan to accept Judge
Richette and if anyone had threatened or promised him
anything, to which McKernan replied no.24 The bench trial
then resumed, with McKernan putting on his defense, after
which the judge found McKernan guilty of First Degree
Murder.

        McKernan appealed his conviction to the Pennsylvania
Superior Court, which affirmed in an unpublished opinion.25
Among the grounds of the appeal were the claims that “the
trial judge erred in failing to recuse herself” based on the

20
   

21
   

at 293-294.
23
   

24
   

25
   Commonwealth v. McKernan, 

(Pa. Super.
Ct. 2001) (Table).




                               8
robing room conference and that Harrison was ineffective for
failing to move for recusal. The Superior Court rejected both
arguments, finding “neither trial court error nor ineffective
assistance of counsel on this record.”

        McKernan petitioned for post-conviction relief, which
the trial court denied. On appeal, McKernan raised a single
issue: whether McKernan’s “decision, mid-trial, to refuse the
Trial Court’s offer to recuse itself” was a “knowing,
intelligent and voluntary decision and under all the
circumstances was a knowing waiver of a constitutional right
at the time that it was made and were trial counsel, appellate
counsel and post conviction counsel all ineffective for failing
to raise and brief this very precise issue.” The Superior Court
found that the issue had been previously litigated. In the
alternative, the Superior Court analyzed the merits of
McKernan’s motion for post-conviction relief, finding that
habeas relief was not warranted. For both reasons, the
Superior Court dismissed the petition. The Pennsylvania
Supreme Court declined review.

       McKernan then filed a pro se federal habeas petition
raising, among other grounds, the question of whether “[t]rial
counsel rendered IAC [ineffective assistance of counsel] by
failing to challenge whether the petitioner entered a
voluntary, intelligent and knowing waiver regarding the
recusal of the trial judge.” A Magistrate Judge recommended
denial of the habeas petition, to which McKernan, now
represented by counsel, objected.

      The District Court held an evidentiary hearing on
November 24, 2008. After the hearing, the District Court
denied the petition but granted a Certificate of Appealability




                              9
on the issue of whether McKernan had made a substantial
showing that the trial judge’s failure to recuse violated the
due process requirement of a fair trial by a fair tribunal and
whether he might be actually innocent of first degree murder,
if not some degree of homicide. A panel of this Court
expanded the Certificate of Appealability to include the issue
of “whether the district court erred in denying [the] claim that
trial counsel performed ineffectively by failing to seek and
secure relief for the trial court’s (alleged) bias.” We will
consider only this second issue in our consideration of this
appeal.

                              II.

       The District Court had jurisdiction over this matter
pursuant to 28 U.S.C. § 2254; we have jurisdiction pursuant
to 28 U.S.C. §§ 1291 and 2253. Our review of the District
Court’s opinion is plenary.26 In reviewing a habeas petition
under § 2254, we must first be satisfied that the claims have
been exhausted, and have not been procedurally defaulted.27
If these procedural requirements are satisfied, a habeas
petition may be granted with respect to a claim that was
adjudicated on the merits by a state court only if the state
court proceeding “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”28

26
   Showers v. Beard, 

, 628 (3d Cir. 2011).
27
   28 U.S.C. § 2254(b)(1)(A).
28
   28 U.S.C. § 2254(d).




                              10
       Under § 2254(d)(1), “[a] state court decision is an
unreasonable application . . . if the court identifies the correct
governing legal rule from the Supreme Court’s cases but
unreasonably applies it to the facts of the particular case.”29
This is a high standard, since “[i]t is not enough that a federal
habeas court, in its independent review of the legal question,
is left with a firm conviction that the state court was
erroneous.”30 Instead, “[t]he state court’s application of
clearly established law must be objectively unreasonable
before a federal court may grant the writ.”31

       Here, McKernan has not procedurally defaulted his
ineffective assistance of counsel claim, and has properly
exhausted it in state court. Although the Superior Court
dismissed McKernan’s Strickland claim under Pennsylvania’s
“previous litigation rule,” we have held that claims resolved
under this rule are not procedurally defaulted for purposes of
federal habeas corpus.32 Similarly, we have held that claims

29
   Jacobs v. Horn, 

, 100 (3d Cir. 2005) (internal
quotation marks omitted).
30
   Rountree v. Balicki, 

, 537 (3d Cir. 2011)
(internal quotation marks omitted) (alteration in original).
31
    

marks omitted) (alteration in
original).
32
   Boyd v. Waymart, 

, 369-70 (3d Cir. 2009) (en
banc) (opinion of Hardiman, J.) (collecting cases). The per
curiam opinion in Boyd expressly rested on Judge Hardiman’s
analysis of procedural default and exhaustion. 

(“For the reasons given in Part III of [Judge Hardiman’s]
opinion, we conclude Boyd's claim was properly exhausted
and has not been procedurally defaulted.”).




                               11
dismissed under the previous litigation rule are properly
exhausted.33   Accordingly, McKernan has satisfied the
procedural requirements of a federal habeas petition, and we
may consider the merits of his argument.

        McKernan argues that the state courts unreasonably
applied Supreme Court precedent as to whether McKernan’s
trial counsel was ineffective for failing to seek Judge
Richette’s recusal and for advising McKernan not to seek
recusal. Because the Superior Court considered the merits of
McKernan’s claims, and did not rest solely on the previous
litigation rule, we treat its findings with the deference
required by § 2254(d).34 The state court and the District
Court correctly identified the appropriate Supreme Court
precedent to apply as Strickland v. Washington.35 Strickland
established the familiar two prong test for evaluating
ineffective assistance of counsel claims, under which the
petitioner must first show that the counsel’s performance was
deficient and, second, that the deficient performance was
prejudicial to the defendant.36 To meet the first prong,
counsel’s performance must fall “below an objective standard
of reasonableness considering all the circumstances.”37
Counsel’s performance is deficient only “when counsel made
errors so serious that counsel was not functioning as the


33
    Staruh v. Superintendent Cambridge Springs SCI, et al.,

, 256 n.4 (3d Cir. 2016).
34
    See Rolan v. Coleman, 

, 319-21 (3d Cir.
2012).
35
   

(1984).
36
   

37
   

.




                             12
‘counsel’ guaranteed . . . by the Sixth Amendment.”38

                              III.

       The deference due state court merits judgments under
§ 2254(d) and Strickland is significant, but it “does not imply
abandonment or abdication of judicial review.”39 We have no
trouble holding that, in the unique circumstances of this case,
counsel’s performance in failing to move for recusal of Judge
Richette fell far below the minimal standards of competence
in the profession and the state court’s failure to recognize this
incompetence was an unreasonable application of the
Strickland factors.

        Counsel in this matter had tried many cases before
Judge Richette and described her as a “colorful jurist.” He
testified at the hearing before the District Court that, although
he had never experienced a situation similar to the robing
room conference, he believed that a bench trial before Judge
Richette offered the best option for his client. The District
Court found that Harrison’s decision was strategic in nature
and was at least arguably rational. We disagree.

       The right to a “fair trial in a fair tribunal is a basic
requirement of due process” and derives directly from the
Constitution.40 While a defendant is capable of waiving
many rights, including the right to a jury, the absolute

38
    McBride v. Superintendent, SCI Houtzdale, 

,
102 (3d Cir. 2012) (alteration in original).
39
   Brumfield v. Cain, 

, 2277 (2015) (internal
quotation marks omitted).
40
   In re: Murchison, 

, 136 (1955).




                               13
minimum standard for a constitutional trial is “an impartial
trial by jury.”41 The importance of a fair tribunal is so etched
into the bedrock of the American judicial system that few
courts have even found a need to address it. The Seventh
Circuit Court of Appeals, for instance, simply observed that
certain procedural requirements must be followed, noting that
“if the parties stipulated to trial by 12 orangutans the
defendant’s conviction would be invalid notwithstanding his
consent, because some minimum of civilized procedure is
required by community feeling regardless of what the
defendant wants or is willing to accept.”42 Similarly, the
Second Circuit Court of Appeals reversed a district court’s
holding that a defendant waived his right to an impartial jury
by failing to object to a juror who lied during voir dire,
especially in light of subsequent events that revealed the juror
“was actually biased against Defendants.”43

       Considering the myriad procedural safeguards in place
to avoid the seating of even one biased juror, out of twelve, it
is inconceivable that, during a bench trial when the judge is
the sole factfinder, a trial may proceed when that judge is
biased. To do so is to conduct a trial before an unfair
tribunal, violating the fundamental requirement for an
acceptable trial. We therefore hold today that the right to an
impartial trial extends to a bench trial, and that such right
cannot be waived by a defendant.

       The Commonwealth asserts, and the state courts found,

41
   Singer v. United States, 

, 36 (1965).
42
   United States v. Josefik, 

, 588 (7th Cir. 1985).
43
   United States v. Parse, 

, 120 (2d Cir. 2015)
(internal quotation marks omitted).




                              14
that Judge Richette did not show herself to be “actually
biased” against McKernan and, consequently, counsel was
not ineffective for failing to move for recusal.44 The state
courts applied the wrong constitutional test and compounded
the error by finding that counsel was not ineffective. The
Supreme Court has held that allegations of bias rise to the
level of a constitutional deprivation when there is the
“probability of unfairness” and there exists “a possible
temptation to the average man as a judge not to hold the
balance nice, clear and true between the State and the
accused.”45 As an example, in Mayberry v. Pennsylvania,
two pro se defendants directed near constant abuse at a state
trial judge until the trial judge held them in contempt.46 The
Supreme Court held that the judge, as the victim of the
contemnor’s outbursts, was too close to the proceedings to be
impartial enough to make the relevant contempt findings.47

44
    Because McKernan’s claim of ineffective assistance is
premised on the alleged bias of Judge Richette, we must make
a threshold inquiry as to whether there were grounds to
believe that Judge Richette was biased; counsel would not be
ineffective for failing to move for recusal absent some
perceived partiality. However, this threshold inquiry does not
necessarily support the existence of an independent due
process claim. A due process claim lies where a judge would
have been required to recuse herself.           An ineffective
assistance of counsel claim, on the other hand, may lie where
counsel fails to file a motion for discretionary recusal for
which there are good grounds.
45
   In re: 

(internal quotation marks
omitted).
46
   

, 460–62 (1971).
47
   

(internal quotation marks omitted).




                             15
       The Supreme Court held that the judge in Mayberry
was subjected to “highly personal aspersions” and “[i]nsults
of that kind [that] are apt to strike at the most vulnerable and
human qualities of a judge’s temperament.”48 Here, we know
that the Gibsons’ websites struck “at the most vulnerable and
human qualities of”49 Judge Richette’s temperament through
the robing room conference transcript. In Mayberry, the
Supreme Court noted that “a judge, vilified as was this
Pennsylvania judge, necessarily becomes embroiled in a
running, bitter controversy” and that “[n]o one so cruelly
slandered is likely to maintain that calm detachment
necessary for fair adjudication.”50 In the instant matter, Judge
Richette admitted to her belief that she had been slandered by
the victim’s family and indicated that she was determined to
prove them wrong.

       In a case such as McKernan’s, where the defense
theory of the case was at least partially based on arguing a
lesser degree of culpability, Judge Richette’s actions would
have caused any competent attorney to seek recusal
immediately.51 Judge Richette offered the victim’s family in
a case in progress before her an opportunity to seek her
recusal. She repeatedly implied that the assistant district
attorney was the Gibsons’ attorney, when he in fact had no
responsibility to the family of the victim, but rather to all of

48
   

marks omitted).
49
   

marks omitted).
50
   

51
   Cf. Breakiron v. Horn, 

, 142 (3d Cir. 2011)
(holding that counsel was ineffective for failing to strike an
obviously biased venire panel).




                              16
the people of the Commonwealth of Pennsylvania. Most
strikingly, Judge Richette sought repeatedly to assure the
Gibson family that she was not “Let ‘em Loose Lisa,” a judge
who was incapable of issuing harsh decisions.

       As McKernan recognized, but McKernan’s counsel did
not, a finding that McKernan was guilty of some offense
involving a lower standard of culpability would play directly
into the narrative the Gibsons had published on their website:
the caricature of “Let ‘em Loose Lisa Strikes Again!” While
McKernan’s counsel’s belief that Judge Richette was the best
option for his client at the beginning of trial may have been a
reasonable strategic decision, by the time Judge Richette held
the robing room conference and revealed herself to be
actively concerned with the her image on the internet and the
victim’s family’s perception of her, any competent attorney
would have realized that the strategy had to be revised.

       Indeed, it appears that if McKernan had had no
counsel at all, he would have made the decision to seek
recusal. He expressed his concerns to his attorney, only to
have his attorney inexplicably talk him out of those concerns,
even going so far as to refer to his client’s very valid issues as
a “problem” to be solved. If counsel is ineffective only where
his conduct was so deficient as to render his client de facto
without counsel, McKernan’s counsel may have been worse:
he convinced his client to proceed before a tribunal that
objectively had the appearance of bias against him. He
advised his client to proceed before a court that was
structurally deficient, something no competent attorney would
ever do. Under § 2254, where “[t]he question is whether
there is any reasonable argument that counsel satisfied




                               17
Strickland’s deferential standard,”52 the answer here is “No.”
Consequently, McKernan’s claim fulfills the first prong of
Strickland.

       Strickland’s second prong is easier to fulfill. To show
prejudice, a petitioner need only “show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.”53 This standard “is less demanding than the
preponderance standard.”54 Here, the standard is easily met.

        As noted above, McKernan’s defense centered on the
degree of his culpability. McKernan’s argument was that he
had struck Gibson in self-defense and Gibson died when his
head hit the curb. In view of Judge Richette’s sensitivity to
criticism for being lenient, it would not appear likely that she
would now accept McKernan’s defense of a lesser degree of
homicide. There is evidence in the record from which an
impartial judge could have found a lesser degree of homicide.
McKernan’s counsel himself admitted to the District Court
that he was quite surprised by the verdict, thinking that there
was virtually no chance under the facts of the case that
McKernan would be found guilty of first degree murder.
Thus, there is a reasonable probability that if McKernan’s
counsel had been effective and moved for recusal, the
outcome of the trial would have been different. The second
Strickland prong is met here.

52
   

(quoting Harrington v. Richter,

, 105 (2011)).
53
   Jermyn v. Horn, 

, 282 (3d Cir. 2001) (internal
quotation marks omitted).
54
   

this holding that petitioner met both prongs of
the Strickland inquiry, it is unnecessary for us to reach the
parties’ other arguments, and we express no opinion as to
their validity.

                              IV

       For the foregoing reasons, we will reverse the decision
of the District Court and remand with instructions to grant the
petition for habeas corpus unless, within 60 days of the
remand, the Commonwealth of Pennsylvania decides to retry
the charges against McKernan.




                              19