Opinion
Civil Action 23-1461
07-21-2023
EVAN WARREN PRICE v. SCOTT KLINEFELTER, et al.
REPORT AND RECOMMENDATION
SCOTT W. REID, UNITED STATES MAGISTRATE JUDGE
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254 by Evan Warren Price, who is currently incarcerated at SCI Houtzdale, in Houtzdale, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.
I. Factual and Procedural Background
On April 26, 217, Price was arrested and charged in Berks County with committing four armed robberies of businesses between April 24 and 26, 2017. Commonwealth v. Price, 236 A.3d 1103 (Table), Opinion at 2020 WL 1899841 at *1 (Pa. Super. Apr. 17, 2020).
While Price was awaiting trial, his counsel was informed by the Berks County prosecutor, who was also a Special Assistant United States Attorney for the Eastern District at Pennsylvania, that the charges against him were suitable for adoption for federal prosecution. Commonwealth v. Price, 281 A.3d 1045 (Table), Opinion at 2022 WL 1836261 at *2 (Pa. Super. June 3, 2022). In a letter of August 11, 2017, the prosecutor wrote that federal sentencing guidelines would subject Price to “consecutive mandatory minimum sentences of 82 years' imprisonment.” Id. However, if Price pled guilty to four counts of robbery in the Berks County Court of Common Pleas, and agreed to a sentence of 20-40 years' incarceration, the U.S. Attorney's Office would agree not to bring federal charges. Id.
The offer was to remain open until September 1, 2017. PCRA Transcript of September 9, 2021 at 22, attached to the Commonwealth's Response at Appendix page A208 (Testimony of attorney Kelly Kline). On August 31, 2017, Price's counsel told him of the proposed plea agreement. Id. at 21, attached to the Commonwealth's Response at Appendix page A207. Price was initially angry at the suggestion of a plea bargain because he believed he had a valid Fourth Amendment claim relating to the search of his vehicle. Id. at 20, at Appendix page A206, and 25, at ¶ 211. Ultimately, however, he signed the letter which would commit him to the plea, with his counsel's assurance that she would not inform anyone about his signature until he had spoken with his wife, Amanda Price, and conveyed to counsel that he was willing to take the agreement. Id. at 22, A208. On September 1, 2017, counsel received confirmation from Amanda Price that her husband was willing to accept the plea agreement. Id.
Price pled guilty in the Court of Common Pleas for Berks County on September 6, 2017, and was sentenced to an aggregate term of 20 to 40 years' imprisonment. Commonwealth v. Price, 2022 WL 1836261 at *2. After oral colloquy, the prosecutor asked: “In light of your answers to my questions on the record and in light of your answers in the three guilty plea colloquies, is it still your intention to plead guilty and be sentenced in accordance with the plea agreement?” Guilty Plea Transcript of September 6, 2017, at 6, attached to Response at ¶ 58. Price responded: “Yes.” Id. After an oral recitation of the facts of each crime, to which Price agreed, the plea judge found Price's guilty pleas to be knowing and voluntary. Id. at 11, at ¶ 63.
Nevertheless, according to plea counsel:
[A]fter he entered the plea and he turned to walk back over to the bench, he said, if I appeal, can they go federal? And I said, if you appeal and your guilty plea is withdrawn or thrown out, then the plea agreement and everything that precipitated that would be off the table. He retorted that I had told him previously that I didn't practice in federal court. And he said, well, how do you know if you don't practice in federal court? And I said,
because this is really just general law. If your guilty plea is gone, then you start fresh; you start over again.Id. at 23-4, A209-A210. Then: “[h] asked me to look into if he were to withdraw his plea or if he were to appeal, would they be able to go back and seek a federal prosecution against him. To appease him at the time, I said I would look into it.” Id. at 24, A210.
According to Price's plea counsel, Price was aware at the time he pled guilty that an appeal to a higher court would have to be filed within 30 days:
PROSECUTOR: At the time that [the defendant] entered his plea, did you review his post-sentence rights with him?
COUNSEL: Yes.
PROSECUTOR: In all three cases?
COUNSEL: Yes.
PROSECUTOR: And the defendant, did he take copies with him?
COUNSEL: Yes.
PROSECUTOR: Is there any question in your mind whether the defendant understood the time limitations for filing post-sentence motions and notices of appeal?
COUNSEL: No.Id. at 23, A209.
On September 13, 2017, eleven days after Price's plea, his wife, Amanda Price, contacted plea counsel by email. Id. at 8, A194. She wrote:
I spoke with [Price] last night and he was wondering if you were able to look into further actions or if they can come after him federally if he motions to take the sentencing to a higher court. He said you were going to look into it and let me know.
Also if it would be a possibility would that be something you could do and what kind of fee would there be?
If you are unable to do so I received a referral from a family member for another attorney and wanted to know your opinion if that's possible and if this is something in his realm of practice. His name is Bill Bispels.2022 WL 1836261 at *3. Plea counsel replied two days later: “I am still looking into it as I have found nothing on point. Bispels is a very good lawyer.” Id. This was the entire text of her reply. Id.
There was no more contact between plea counsel and either Evan or Amanda Price during the 30-day appeal period. No direct appeal was filed. Six months later, however, plea counsel received a letter from Price dated February 18, 2018. In it, Price wrote: “I am writing to you in regards to my Direct Appeal that I informed you at sentencing that I wanted filed, and I had my wife contact you about this and she said you informed her that ‘you were looking into it on my behalf.' If you would be so kind as to update me on the status of my direct appeal I would be very appreciative. Since the 15th of September my wife has contacted you by email and tried to reach you by phone and we have heard nothing confirmative from you in regards to this matter.” Response at ¶ 226.
Plea counsel responded to this letter by emailing Amanda Price, and copying Price by written mail, on February 22, 2018. PCRA Petition at Exhibit C at ¶ 89. In her email, plea counsel (a) explicitly denied that Price instructed her to file an appeal, or that she had ever agreed to file one; (b) explained that she believed there was no basis for an appeal; (c) pointed out that Price had been provided with a document informing him he had only 30 days from sentencing to file an appeal; and (d) explicitly denied that Amanda Price had ever contacted her to ask about the progress of a direct appeal, and stated that she had responded to the only two emails she had received from Amanda Price since September 13, 2017, in which she sought copies of Price's records. Id.
On April 3, 2018, Price filed a petition in the Court of Common Pleas for Berks County under Pennsylvania's Post Conviction Relief Act, (“PCRA”), 42 Pa. C.S.A. §9541, et seq. In it, he argued that plea counsel was ineffective for failing to file a requested direct appeal. 2020 WL 1899841 at *1. Counsel was appointed, but he filed a letter of no-merit under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After proper notice, the PCRA court dismissed Price's petition on May 24, 2019. Id. On appeal, however, the Pennsylvania Superior Court vacated the dismissal of Price's PCRA petition and remanded the matter for appointment of new counsel and for an evidentiary hearing “to determine whether plea counsel was per se ineffective for failing to file a requested notice of appeal.” Id.
The PCRA court held a hearing on August 19, 2021, at which it heard testimony from Price, Amanda Price, and plea counsel Kelly Kline, Esq. 2022 WL at *2. Nevertheless, it once again denied relief on November 29, 2021. Id. at *4. This time, the Pennsylvania Superior Court affirmed the PCRA court's decision in a written decision dated June 3, 2022. 2022 WL 1836261. Price did not file a timely appeal to the Pennsylvania Supreme Court, but on October 6, 2022, he filed a Petition for Leave to File an Appeal Nunc Pro Tunc. Commonwealth v. Price, Nos. 98-100 MM 2022 (Pa. Feb. 10, 2023), attached to Response at ¶ 334, A360. The Pennsylvania Supreme Court denied this petition on February 10, 2023.
On April 14, 2023, Price filed the present petition for habeas corpus relief. In it, he argues that plea counsel was constitutionally ineffective in failing to file an appeal, where Price was “adamant in his desire to appeal.” Petition at ¶ 12, Ground One.
Facially, Price raised two other issues, but they simply assert that the first issue was decided incorrectly in the state courts. Since that is exactly what would have been reviewed here, due to the nature of a habeas corpus petition (if Price's petition were timely), there is no need to discuss Price's second and third issues separately.
III. Relevant Legal Principles
A. The AEDPA Statute of Limitations
AEDPA, the habeas corpus statute, applies a one-year statute of limitations to the filing of a habeas corpus petition. The one-year period generally begins to run from the date on which the judgment became final at the conclusion of direct review, or the expiration of the time for seeking direct review. 28 U.S.C. §2244(d)(1)(A). There are exceptions to this where the period begins to run (1) at the removal of an impediment to the filing of a petition, where the impediment was created by illegal state action; (2) the date on which the constitutional right asserted was newly recognized by the United States Supreme Court; or (3) the date on which the factual predicate of the petitioner's claim could have been discovered through the exercise of due diligence, where it could not have been discovered earlier. 28 U.S.C. §2244(d)(1)(B)-(D).
The limitations provision of AEDPA is not jurisdictional in nature, and can therefore be waived by the Commonwealth, or subject to equitable tolling. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). Generally, a litigant seeking equitable tolling bears the burden of establishing (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408 (2005).
Further, actual innocence has been recognized as an exception to the AEDPA state of limitations. McQuiggin v. Perkins, 569 U.S. 383 (2013). Schlup v. Delo, 513 U.S. 298 (1995); Wallace v. Mahanoy, 2 F.4th 133, 151 (3d Cir. 2021). To satisfy that demanding exception, however, a petitioner must present new, reliable evidence of his innocence, and then show by a preponderance of the evidence that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. Wallace v. Mahanoy, 2 F.4th 133 at 151 (3d Cir. 2021). Where there exists sufficiently strong competing evidence undermining an innocence claim, a defendant is not entitled to “pass through the ‘actual innocence' gateway.” Id. at 159.
B. Standard for Issuance of a Writ of Habeas Corpus
In enacting the Antiterrorism and Effective Death Penalty Act of 1196 (“AEDPA”), Congress significantly limited the federal courts' power to grant a writ of habeas corpus. Where the claims presented in a federal habeas petition were adjudicated on the merits in the state courts, a federal court may not grant habeas relief unless the adjudication either (a) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or (b) 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 U.S.C. §2254(d).
As the United States Supreme Court has explained, a writ may issue under the “contrary to” clause of Section 2254(d)(1) only if the “state court applies a rule different from the governing rule set forth in [United States Supreme Court] cases or if [the state court] decides a case differently than [the United States Supreme Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A writ may issue under the “unreasonable application” clause only where there has been a correct identification of a legal principle from the Supreme Court but the state court “unreasonably applies it to the facts of the particular case.” Id. This requires a petition to demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). State court factual determinations are given considerable deference under AEDPA. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004).
C. Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must show that: (a) counsel's performance was deficient and (b) counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1983).
Counsel's conduct is presumed to fall “within the wide range of professional assistance” and it is the petitioner's burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, at 466 U.S. 689-90. The inquiry requires courts to be highly deferential to counsel's reasonable strategic decisions and guard against the temptation to engage in hindsight. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative - even preferable or more effective - strategies does not satisfy the requirements of demonstrating ineffectiveness under Strickland. Marshall, supra, at 307 F.3d 86. Further, counsel cannot be found ineffective for failing to raise a meritless claim. Laffler v. Cooper, 566 U.S. 156, 167 (2012); Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).
To prove prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, at 466 U.S. 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id at 694. In other words, the petitioner need not show that there would definitely have been a different outcome, but must show that the “result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
III. Discussion
A. Price's Petition is Untimely
As above, under AEDPA, Price needed to file his federal habeas petition within a year of the date his judgment became final. 28 U.S.C. §2244(d)(1)(A). A properly filed petition for collateral relief, such as a PCRA petition, tolls the statute of limitations. 28 U.S.C. §2244(d)(2). However, a request for nunc pro tunc discretionary appellate review is not considered “properly filed,” and does not toll the AEDPA statute of limitations. Douglas v. Horn, 359 F.3d 257, 2623 (3d Cir. 2004); Brown v. DelBaso, Civ. A. No. 19-1346, 2021 WL 5450920 at *6 n.8. (E.D. Pa. Sep. 27, 2021), approved and adopted 2021 WL 5447134 (Nov. 22, 2021) (Citing Douglas for the proposition that “[T]he Third Circuit has expressly held that rejected requests for nunc pro tunc appeals are, by definition, not ‘properly filed'”).
Price's judgment became final on October 6, 2017, which was 30 days after he entered his guilty plea. By the time the statute of limitations was tolled by the filing of his PCRA petition on April 3, 2018, 179 days of the year-long statute of limitations had already lapsed, and 186 days remained. The statute of limitations began running again on June 3, 2022, when the Pennsylvania Superior Court denied the appeal of Price's PCRA petition. Under Douglas v. Horn, the subsequent nunc pro tunc petition to the Pennsylvania Supreme Court did not toll the period further. Thus, to be timely, Price's habeas corpus petition would have had to be filed on or before January 5, 2023. As above, it was not filed until over three months later, on April 14, 2023. It is therefore untimely.
B. None of the Exceptions to §2244(d)(1)(A) Apply
Price has not explained why his petition was filed untimely. In response to a question on the §2254 form asking him to explain why the AEDPA statute of limitation did not bar his petition, Price responded only: “If so, the magnitude of constitutional errors, structure in nature, Manifest of Injustice [sic].” Petition at ¶ 18. It is not apparent from the record that any of the exceptions to the statute, as set forth in 28 U.S.C. §2244(d)(1)(B)-(D), apply.
Further, Price has not shown he is entitled to equitable tolling. It is questionable whether he could be said to have pursued his rights with diligence, since this is not his first missed deadline. In any event, Price does not claim that any extraordinary circumstance stood in the way of a timely filing, as is required by the United States Supreme Court for equitable tolling of the AEDPA deadline. See Holland v. Florida, supra.
Nor has Price argued, must less demonstrated, that he is actually innocent. Even the issue which he claims he could have raised pre-trial if he had not pled guilty, namely that the search of his car was illegal, does not imply he is actually innocent of the robberies he pled guilty to committing. This obviously falls far short of the standard required to overcome the one-year statute of limitations, which requires production of new, reliable evidence of innocence which makes it more likely than not that no reasonable juror would have convicted him. See Wallace, supra.
Because Price has not shown that any basis exists for excusing the untimely filing of his habeas petition, the §2244(d)(1)(A), statute of limitations applies. Since Price did not file his petition before the expiration of this deadline, his petition must be dismissed as untimely.
C. Even if Considered on its Merits, Price's Petition Offers no Basis for Relief
Because Price's habeas corpus petition must be dismissed as untimely, no discussion of the merits is necessary. However, in the interest of completeness, I note that the petition could not have succeeded on its merits.
As above, a habeas court cannot grant relief on a claim denied in the state courts, unless the state adjudication (1) was contrary to clearly established federal law or (2) was based on an unreasonable determination of the facts. 28 U.S.C. §22554(d).
Here, the Pennsylvania Superior Court evaluated Price's claim that his counsel was ineffective by looking to a Pennsylvania case which specifically relied upon the federal standard set forth in Strickland. 2022 WL 1836261 at *4, citing Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa. Super. 2020). The Pennsylvania court went on to rely upon Roe v. Flores-Ortega, 528 U.S. 47 (2000), where the United States Supreme Court held that counsel can be found ineffective under Strickland for failing to adequately consult with a client about filing an appeal, even in the absence of an explicit direction to do so. Id. at *5. Clearly, its decision was consistent with established federal law.
The Pennsylvania Superior Court's decision was also based on a reasonable determination of the facts. As noted above, Price argues in his habeas petition that his counsel was ineffective in failing to file a direct appeal, although he was “adamant in his desire to appeal.” Nevertheless, looking to Price's testimony at his PCRA hearing, the Pennsylvania Superior Court found that Price “admit[ed] he did not directly ask counsel to file an appeal, but had inquired about the possibility of an appeal and asked whether he could withdraw his plea without the possibility of facing federal charges.” Id. at *5.
This is supported by Price's testimony at the PCRA hearing that he “really had no idea” what his goal would have been for a direct appeal. PCRA Transcript at 6, attached to Response at ¶ 192. He added: “I wanted her [i.e., plea counsel] to look into the possibility of it, and I was hoping that she would get back to me.” Id.
The Pennsylvania Superior Court went on to find that, under Flores-Ortega, counsel did not adequately consult with Price about an appeal, meaning that she did not “advis[e] the defendant about the advantages an disadvantages of taking an appeal, and mak[e] a reasonable effort to discover the defendant's wishes.” 2022 WL 1836261 at *5, citing 528 U.S. 470 at 478, and at *6 (“Atty. Kline should have responded to [Amanda Price]'s email inquiry with a clear indication that she had concluded her evaluation, had not found any non-frivolous issues for appeal, and would not represent Appellant in a collateral appeal. Further, given the email exchange between [Amanda Price] and counsel, this discussion should have compelled Atty. Kline to seek clarification on Appellant's decision on whether he wished to proceed by filing a notice of appeal, even though Atty. Kline would not have represented him on appeal).”
Nevertheless, the Pennsylvania Superior Court concluded that Price was not entitled to relief under Strickland because he was not prejudiced by counsel's failure to consult with him adequately. Id. at *6. It again cited Flores-Ortega, where the United States Supreme Court wrote:
If the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief. ... Accordingly, we hold that, to show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.528 U.S. at 484.
The Pennsylvania Superior Court pointed out that it would have been irrational for Price to appeal, where this would risk “federal charges four times longer than that which was imposed upon him” in the state plea bargain. 2022 WL 1836261 at *5. It also pointed out that the evidence showed that Price intended to file a direct appeal “only if seeking the withdrawal of his plea would not result in the reinstatement of the federal charges.” Id. at *6.
It does not appear that federal charges were ever filed, so they could not be “reinstated.” In all other respects, however, this is a reasonable interpretation of the facts. Price clearly indicated, both to his lawyer and at the PCRA hearing, that he would only file an appeal if he could do so without exposing himself to federal prosecution. This was an impossibility; any appeal by Price would have involved an attempt to withdraw his guilty plea, which would have nullified the U.S. Attorney's agreement not to file charges. This is less a matter of “general law,” as plea counsel expressed it, than a matter of common sense: if a person agrees to exchange A for B, and then refuses to do A - or does A and then takes it back - he is not entitled to B. Therefore, in accordance with Price's own testimony, he could not show that “but for counsel's deficient performance, he would have appealed,” as required in Flores-Ortega to show prejudice under Strickland.
As above, because Price's petition was filed untimely, it cannot be considered on its merits. However, the foregoing demonstrates that, even if this were not the case, the petition could not have succeeded.
IV. Conclusion
For the reasons set forth above, I now make the following:
RECOMMENDATION
AND NOW, this 21st day of July, 2023, it is respectfully recommended that this petition be dismissed as untimely. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. The petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).