Christopher BOYD v. Warden, Sci WAYMART; District Attorney of Philadelphia County, Pennsylvania; Attorney General, Commonwealth of Pennsylvania, Appellants, 579 F.3d 330

OPINION OF THE COURT PER CURIAM. The District Court conditionally granted a writ of habeas corpus to Christopher Boyd. The Commonwealth appealed, and after a three-judge panel heard argument, the Court ordered rehearing en banc. We will reverse the District Court’s judgment and remand to a different district court judge for proceedings consistent with this opinion. The facts of this case and the basis of our jurisdiction are set forth in Parts I and II of Judge Hardiman’s opinion. For the reasons given in

Part III of that opinion, we conclude Boyd’s claim was properly exhausted and has not been procedurally defaulted. See Cone v. Bell, — U.S.-, -, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009). Furthermore, a majority of the Court finds that Boyd’s claim is governed by the test for ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); it is not barred by Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), or Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).

Although the District Court correctly identified the Strickland test as the rule of decision, it erred in reviewing Boyd’s claim de novo. As explained in Chief Judge Scirica’s opinion, because the state courts adjudicated Boyd’s claim on the merits, federal habeas relief is subject to the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). Accordingly, we will remand for the District Court to apply the proper AEDPA analysis, consistent with the instructions in Chief Judge Scirica’s opinion. See Chief Judge Seirica Op. at 335-37 & n. 7.

A further word is needed about the appropriate use of evidentiary hearings. The Magistrate Judge in this ease conducted such a hearing, and both the Magistrate Judge and the District Court relied on the evidence adduced therein. Neither they, nor the parties, appear to have queried whether the hearing was permissible under 28 U.S.C. § 2254(e)(2). As detailed in Chief Judge Scirica’s opinion, on remand we instruct the- District Court to address this question in the first instance, and to consider the evidence from the Magistrate Judge’s hearing only if that hearing was consistent with AEDPA’s statutory strictures.

For reasons also given by Chief Judge Scirica, we conclude the District Court improperly rejected — on a cold record-the Magistrate Judge’s finding that Boyd had not demonstrated prejudice as required by Strickland. Although we have no doubts about the district court judge’s fairness, we will remand to a different judge to ensure the appearance of impartiality. If the District Court again reaches the prejudice prong of the Strickland test, it should hold its own hearing (subject again to § 2254(e)(2)) if it declines to accept the Magistrate Judge’s finding. .

For ease of reference, we use the term "Commonwealth” to denote Appellants Warden, SCI Waymart; the District Attorney of Philadelphia County, Pennsylvania; and the Attorney General for the Commonwealth of Pennsylvania.