Opinion
Civil Action 16-561
07-01-2021
RALPH DUNCAN, Petitioner, v. SUPERINTENDENT BARRY R. SMITH and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
J. Nicholas Ranjan District Judge
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Amended Petition for Writ of Habeas Corpus (ECF No. 8) be denied and that a certificate of appealability also be denied.
II. REPORT
Currently pending before the Court is an Amended Petition for Writ of Habeas Corpus (“Amended Petition”) filed by Petitioner Ralph Duncan (“Petitioner” or “Duncan”) pursuant to 28 U.S.C. § 2254. (ECF No. 8.) Petitioner challenges his judgment of sentence imposed on March 25, 2013, after pleading guilty to one count of sexual assault and two counts of intimidation of a witness or victim. For the following reasons, the Amended Petition should be denied and a certificate of appealability should also be denied.
A. Procedural Background
On August 27, 2012, Petitioner was charged via Criminal Information at docket number CP-32-CR-0000822-2012, with one count of intimidation of a witness or victim. Also on August 27, 2012, Petitioner was charged via Criminal Information at docket number CP-32-CR-0000827-2012, with one count each of rape, endangering the welfare of a child, corruption of minors, and indecent assault of a person less than 16 years of age. On September 24, 2012, Petitioner was charged, via Criminal Information at docket number CP-32-CR-0000978-2012, with one count of intimidation of a witness or victim. On December 7, 2012, Petitioner, represented by Attorney Fred Hummel, entered consolidated guilty pleas at the three separate cases pursuant to a plea agreement. See (ECF No. 11-1, p.47.) At CP-32-CR-0000822-2012, he pleaded guilty to one count of intimidation of a witness or victim. Id. At CP-32-CR-0000827-2012, he pleaded guilty to one count of sexual assault. Id. At CP-32-CR-0000978-2012, he pleaded guilty to one count of intimidation of a witness or victim. Id. At the plea hearing, the assistant district attorney summarized the factual basis for the pleas as follows:
Petitioner's criminal docket sheets are public records and available online at ujsportal.pacourts.us.
Pursuant to an affidavit filed by Trooper [Allison] Goswick of the Pennsylvania State Police for actions that occurred on or about May 9, 2009 through April 2012, at 72 Adams Road in Brush Valley Township in Indiana County, [Duncan] did engage in sexual intercourse or deviate sexual intercourse with the complainant without the complainant's consent. That was in the case of #827 Crim. 2012. In the case of #822 Crim 2012, pursuant to an affidavit filed by Trooper Goswick of the Pennsylvania State Police for actions that occurred during a period of years ranging from 2005 to September of 2012 at 72 Adams Road, Brush Valley Township, Indiana County, [Duncan] did intimidate the victim who was to testify against him in a criminal trial involving sexual assaults to her daughter. In the case of #978 Crim. 2012, pursuant to an affidavit filed by Trooper [Deana] Kirkland of the Pennsylvania State Police for actions that occurred on or about December 16, 2009 until a period that is unknown in Homer City in Brush Valley Township in Indiana County, [Duncan] did intimidate a
male victim who was a minor at the time by telling him not to tell anyone what had happened to him in regards to a sexual abuse that had occurred.Id., p.48 (citing N.T., 12/7/2012, pp.14-15.) In exchange for Petitioner's pleas, the Commonwealth agreed to recommend to the trial court that Petitioner's sentences on the individual crimes be run concurrently to each other. Id. (citing N.T., 12/7/2012, p.4.) Notably, at the plea hearing, the trial court stated, “It is my understanding that the Commonwealth or the District Attorney is going to recommend to me that any sentence you receive run concurrently or at the same time and that is also your understanding.” (N.T., 12/7/2012, p.4.) The Petitioner responded, “Yes.” Id. The court then stated, “And do you understand that that is only a recommendation to the Court and it is not binding on me and if I should choose not to follow it, that would not be a reason for you to withdraw your guilty plea, do you understand that?” Id. The Petitioner responded, “Yes.” Id. The court informed Petitioner that the maximum exposure he faced on the three cases would be thirty years imprisonment and a $75,000 fine, and Petitioner indicated that he understood the penalties that he was facing. Id., at p.10. Following the execution of a written guilty plea colloquy, as well as an oral colloquy conducted in open court, the trial court accepted Petitioner's pleas and deferred sentencing until March 25, 2013.
This comprised of a maximum of ten (10) years of imprisonment and a $25,000 fine on each count to which Petitioner was pleading guilty.
At sentencing, the Commonwealth complied with its obligation and recommended concurrent sentences. See (ECF No. 11-1, p.176.) The court, however, rejected the recommendation and sentenced Petitioner to four-and-a-half (4%) to ten (10) years of incarceration on the sexual assault charge at CP-32-CR-0000827-2012, two (2) to ten (10) years of incarceration on the intimidation of a witness charge at CP-32-CR-0000822-2012, and two (2) to ten (10) years of incarceration on the intimidation of a witness charge at CP-32-CR-0000978-2012. Id. The trial court ordered each of these sentences to run consecutively to each other. Id. Thus, in the aggregate, Petitioner was sentenced to eight-and-a-half (8%) to thirty (30) years in prison. Id.
On March 28, 2013, Petitioner, through Attorney Hummel, filed post-sentence motions to modify his sentence in each of his three cases. See id., p.49. He requested only that his sentence be modified to a lesser prison term. Id. He did not seek to withdraw his guilty pleas or allege in any way that his pleas were not knowing, intelligent, and voluntary. Id. The motions were denied on the same day. Id. On May 10, 2013, Petitioner, having not filed a timely notice of appeal, filed a petition to have his appellate rights reinstated nunc pro tunc. Id. On May 13, 2013, the trial court granted the motion. Id.
On May 20, 2013, Petitioner, through Attorney Hummel, filed a notice of appeal at each of his three cases. Id. Attorney Aaron Ludwig was appointed to represent Petitioner on appeal. On June 11, 2013, Petitioner, through Attorney Ludwig, filed a Concise Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (“Rule 1925(b)”) in each of his three cases. Id., p.24. On July 10, 2013, the trial court authored a consolidated opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) (“Rule 1925(a)”). Id., pp.25-28. On August 26, 2013, Attorney Ludwig filed a Motion to Withdraw as Counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Id., pp.2-23. On February 10, 2014, the Superior Court of Pennsylvania affirmed Petitioner's judgments of sentence and granted Attorney Ludwig's Motion to Withdraw. Id., pp.46-55. Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.
On or about May 13, 2014, Petitioner filed a pro se petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”). See id., p.177. The PCRA court appointed Attorney Andrew Skala to represent Petitioner, and, on September 25, 2014, Petitioner, through Attorney Skala, filed an amended PCRA petition. See Id. On December 3, 2014, a hearing was held on Petitioner's claims at which time testimony was taken from the Petitioner, the Petitioner's granddaughter, and Attorney Hummel. On December 22, 2014, the PCRA court denied the amended PCRA petition. Id., pp.100-06. Petitioner, through Attorney Skala, filed a notice of appeal in each of his three cases. On February 13, 2015, Petitioner, through Attorney Skala, filed a Concise Statement of Matters Complained of on Appeal pursuant to Rule 1925(b) in each of his three cases. Id., pp.107-10, 111-14, 115-18. On August 18, 2015, the Superior Court affirmed the denial of PCRA relief. Id., pp.174-87. Petitioner, through Attorney Skala, filed a Petition for Allowance of Appeal (“PAA”) in each of his three cases. Id., pp.143-66. The Supreme Court of Pennsylvania denied the PAA on February 1, 2016.
On or about March 28, 2016, Petitioner filed a second pro se PCRA petition. See id., p.238. On June 9, 2016, the PCRA court issued a Notice of Intent to dismiss the PCRA petition to which Petitioner responded on July 5, 2016. Id. On April 5, 2017, the PCRA court dismissed the second PCRA petition. Id., pp.237-43. Petitioner appealed, and the Superior Court affirmed the dismissal of Petitioner's second PCRA petition on May 1, 2018. Id., pp.290-93. The Superior Court denied reconsideration on May 22, 2018. Id., p.313. Petitioner subsequently filed a PAA. Id., pp.294-323. The Supreme Court of Pennsylvania denied the PAA on March 26, 2019. Id., p.326.
On April 29, 2016, a month after Petitioner filed his second PCRA petition, he initiated the instant federal habeas proceedings by filing a Motion for Leave to Proceed in forma pauperis accompanied by a Petition for Writ of Habeas Corpus and a Motion to Stay. (ECF No. 1.) His Motion was granted on May 6, 2016, and his Petition and Motion to Stay were docketed on May 9, 2016. (ECF Nos. 2-4.) The Court granted Petitioner's Motion to Stay and these proceedings were administratively closed until Petitioner moved to lift the stay on April 16, 2019. (ECF Nos. 5-6.) The case was reopened on April 18, 2019, and Petitioner, pursuant to the Court's Order, filed an Amended Petition on May 14, 2019. (ECF Nos. 7-8.) Respondents then filed a Response to the Amended Petition on July 8, 2019. (ECF No. 11.) Petitioner subsequently filed a Response on August 1, 2019. (ECF No. 12.)
This is the filing date pursuant to the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988).
B. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law,” as the term is used in section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000).
The Supreme Court has identified two scenarios where a state court decision will fall into section 2254(d)(1)'s “contrary to” clause. First, a state court decision will be “contrary to” clearly established federal law when the court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405. It set forth the following example where a state court decision would be “contrary to” Strickland v. Washington, 466 U.S. 668 (1984), the familiar clearly established federal law governing ineffective assistance of counsel claims.
If a state court were to reject a prisoner's claim of ineffective assistance of counsel 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, that decision would be ‘diametrically different,' ‘opposite in character or nature,' and ‘mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that . . . the result of the proceeding would have been different.'Williams, 529 U.S. at 405-06 (internal citations omitted). The Supreme Court said that a state court decision will also be “contrary to” clearly established federal law if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 406.
The Supreme Court has said that under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), a state court decision involves an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407. Under this standard, “a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. The Supreme Court later expanded on this interpretation of the “unreasonable application” clause explaining that the state court's decision must be “objectively unreasonable,” not merely wrong; even “clear error” will not suffice. Locklyer v. Andrade, 538 U.S. 63, 75 (2003). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 Fed.Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third Circuit recently explained that,
[w]hile a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is “firmly convinced that a federal constitutional right has been violated,” Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).
The AEDPA further provides for relief if an adjudication “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)(2). Under § 2254(d)(2), a state court decision is based on an “unreasonable determination of the facts” if the state court's factual findings are “objectively unreasonable in light of the evidence presented in the state-court proceeding,” which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
C. Discussion
It appears that Petitioner raises eight grounds for relief in his Amended Petition that can be summarized as follows. First, he argues that his plea was not knowing or intelligent due to counsel's ineffectiveness in advising him to plead guilty. Second, he argues error on the part of the PCRA court in connection with the dismissal of his second PCRA petition. Third, he argues that the appointment of attorneys from the same office, the public defender's office, for his plea and direct appeal proceedings denied him due process. Fourth, he argues prosecutorial misconduct. Fifth, he argues ineffective assistance of plea counsel for failing to move to withdraw his guilty plea. Sixth, he argues ineffective assistance of plea counsel for failing to properly assess and investigate evidence or develop a defense. Seventh, he argues that he was never informed of his right to a jury trial or his right to move to withdraw his plea upon a showing of good cause. Finally, he argues a layered claim of ineffective assistance of all counsel.
1. Statute of Limitations
As an initial matter, the undersigned would first like to address Respondents' argument that the Amended Petition should be dismissed as untimely. The undersigned observes that Respondents appear to have incorrectly analyzed the statute of limitations in this case. In this regard, the AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation under this section.28 U.S.C. § 2244(d).
The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Third, the court must determine whether any of the other exceptions or equitable tolling should be applied on the facts presented.
Here, the “trigger date” for Petitioner's claims is the date on which his judgments of sentence became final, which in this case was March 12, 2014, the last day Petitioner had to file a petition for allowance of appeal in the Pennsylvania Supreme Court after the Superior Court affirmed his judgments of sentence on February 10, 2014. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes “final” at the conclusion of direct review or the expiration of time for seeking such review). Thus, the first day of Petitioner's one-year statute of limitations period was March 13, 2014, and, absent any tolling for “properly filed” applications for post-conviction relief, Petitioner had until March 13, 2015 to file a timely federal habeas petition challenging his judgments of sentence. As previously noted, however, Petitioner did not file his initial Petition in this case until April 29, 2016. Accordingly, the Court must next determine whether Petitioner can take advantage of the tolling provision in section 2244(d)(2).
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Here, Petitioner filed a PCRA petition on May 13, 2014, which was 61 days after his judgments of sentence became final. After the filing of the PCRA petition, Petitioner's one-year statute of limitations was tolled until the Pennsylvania Supreme Court denied his PAA on February 1, 2016. With 304 days remaining (365-61=304) of his one-year statute of limitations, Petitioner timely filed his initial Petition in this case 88 days later, on April 29, 2016.
It appears that Respondents argue that the Petition was untimely filed because it was filed on May 14, 2019. That, however, was the date that Petitioner filed his Amended Petition after this Court granted his motion to lift the stay and ordered him to file an amended petition. The filing date pursuant to the prisoner mailbox rule of the initial Petition, which was clearly a “protective” petition, was April 29, 2016, well within the one-year statute of limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (A prisoner may file a “protective” petition in federal court and ask the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.) Furthermore, Petitioner's claims are timely because he raised all of them in his initial Petition filed on April 29, 2016, albeit in a slightly different order, and in slightly different variations, as how he presented them in his Amended Petition. Accordingly, the Petition was timely filed.
The undersigned will now proceed to review the claims in the Amended Petition in the order in which they are presented.
2. Claim 1
In his first claim, Petitioner argues that his guilty plea was not knowing and intelligent due to the ineffective assistance of plea counsel whom Petitioner claims lead him to believe that he would receive a sentence of three-and-a-half (3%) to seven (7) years of incarceration if he were to plead guilty. He also argues that it was not knowing and intelligent because counsel advised him to say “yes” to all questions asked by the court but he could not hear certain points of the plea colloquy. Petitioner raised these claims in his PCRA petition. Specifically, he argued that his guilty plea was unlawfully induced as a result of ineffective assistance of plea counsel because (1) counsel told him to answer “yes” to questions he could not hear during the colloquy conduction and he was unable to hear certain points of the colloquy conduction due to his hearing impairment; (2) counsel led Petitioner to believe that he would at most be facing a sentence of three-and-a-half (3%) to seven (7) years of incarceration if he took the plea agreement; and (3) counsel informed Petitioner that he would be convicted on the charges and as a result frightened him into entering the pleas. When reviewing the claims, the PCRA court cited to the standard a petitioner must satisfy to prevail on a claim of ineffective assistance of counseland addressed the allegations of ineffective assistance as follows:
The facts supporting Petitioner's first claim come from both his Amended Petition at ECF No. 8 and from his original Petition at ECF No. 3, wherein he presented additional facts in support of this claim in ground 7.
Specifically, it noted that Pennsylvania follows the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), except that it sets forth the test in three prongs instead of two. See ECF No. 11-1, p.102 (citing Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013)).
Petitioner first argues that [Attorney] Hummel told both Petitioner and Petitioner's daughter that he did not have a chance of prevailing on the charges; which convinced him to enter his guilty pleas. “Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citing Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)). In order to succeed on an ineffectiveness of counsel claim in relation to the entry of a guilty plea, a defendant must show a reasonable probability that but for counsel's errors he would not have plead guilty, but instead would have insisted on going to trial. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014). At the hearing, [Attorney] Hummel testified that he did not inform Petitioner that he had “no chance” of prevailing, but given the evidence and the circumstances, he informed him that he had little chance. During the plea colloquy, Petitioner indicated that his pleas were voluntary and when asked whether he was forced or threatened into making his pleas [] he stated “no”. Plea Hearing Transcript p.13. Petitioner voluntarily entered his guilty pleas after [Attorney] Hummel advised him that this would be the best course of action. This advice came after [Attorney] Hummel had an opportunity to interview both Petitioner's wife and stepdaughter to evaluate the potential effect of their testimony should the matter proceed to trial. There is no indication that [Attorney] Hummel's advice was outside the range of competence for a criminal attorney; therefore his recommendation to Petitioner does not constitute ineffectiveness.
Petitioner next claims that [Attorney] Hummel led him to believe that the sentence he would receive if he pled guilty would be much less than the one he ultimately received. Specifically he claims he was led to believe he would be facing a sentence of three and one-half (3%) to seven (7) years. Petitioner testified that he didn't specifically remember reading the plea agreements that he signed and that he just trusted [Attorney] Hummel to handle everything. At the hearing, Attorney for the Commonwealth, Patrick Doherty, pointed out the sections of the plea agreement that listed the charges and the maximum possible penalties. [Attorney] Hummel also testified that in addition to his discussions with Petitioner, he sent him a letter detailing the charges and the possible sentencing ranges. He testified that the letter informed Petitioner that his plea was made of his own free will and that he could not be forced to accept it. [Attorney] Hummel further testified that he discussed the contents of the letter at a subsequent meeting with Petitioner at the jail. Furthermore, at the plea hearing, the Court asked Petitioner if he understood that any sentencing recommendations were not binding and the Court could choose not to follow them. Petitioner responded in the affirmative. Plea Hearing Transcript p.4. Based on the information provided to the Court, Petitioner was properly sentenced within recommended sentencing guidelines. Counsel cannot be deemed ineffective for the ultimate results in Petitioner's sentencing when he explained the different possibilities to him and the record reflects that the Commonwealth recommended concurrent sentences. As a result, this argument is without merit.
* * *
Petitioner's last argument is that [Attorney] Hummel was ineffective for instructing him to just answer “yes” to questions at the plea hearing. Petitioner claims that he followed this instruction even though he did not understand some of the questions that were asked because he had difficulty hearing. A review of the record from the plea hearing reflects that [Attorney] Hummel did bring Petitioner's hearing impairment to the Court's attention and Petitioner was
specifically instructed to let the Court know if he could not hear. Plea Hearing Transcript p. 2. The record reveals that Petitioner did ask the Court to repeat certain information so that he could clearly understand it and the Court obliged. Plea Hearing Transcript p. 6, 10 and 13. The record also fails to support Petitioner's claim that he just followed [Attorney] Hummel's instructions to respond “yes” to questions by the Court. A review of the transcript shows multiple instances where Petitioner responded in a manner that required a reply beyond a mere “yes”. Petitioner's own responses at the plea hearing contradict his claims that he was unable to hear. There is no indication that counsel failed to bring Petitioner's hearing difficulties to the Court's attention or that the Court failed to recognize this and accommodate him. Rather, the record reflects the opposite and Petitioner's claim is without merit.(ECF No. 11-1, pp. 102-05.) Petitioner raised all three of these issues on appeal to the Superior Court. On review, the Superior Court also cited to the standard a petitioner must satisfy to prevail on a claim of ineffective assistance of counsel, including claims of ineffective assistance of counsel in connection with the entry of a guilty plea, and addressed the claims as follows:
As his first issue on appeal, [Petitioner] asserts that he was unable to hear “certain points” of the plea colloquy by the trial court, but answered “yes” to the questions posed by the trial court on the advice of counsel. [Petitioner] asserts that this renders his plea “unknowingly and involuntarily” entered. He further states that “[d]efense [c]ounsel's act in giving [Petitioner] erroneous advice in inducing [Petitioner] to plead guilty deeply prejudiced [Petitioner].”
Nowhere in this argument does [Petitioner] indicate what portions of the plea colloquy he was allegedly unable to hear or that he would not have entered his plea but for the advice of counsel. We therefore have no basis to conclude that he was prejudiced by counsel's alleged ineffectiveness.
Moreover, the PCRA court found that plea counsel did not advise [Petitioner] to answer “yes” to every question posed during the plea colloquy if he was unable to hear the questions. This finding has ample record support. Although [Petitioner] testified at the PCRA hearing that plea counsel instructed him to “say yes” if the plea court asked him a question he could not hear, plea counsel testified that he never so instructed [Petitioner]. As the PCRA court correctly notes, there were numerous questions presented during the plea colloquy to which [Petitioner] provided more than a simple “yes” as an answer. Furthermore, as the PCRA court observed, plea counsel informed the plea court of [Petitioner]'s hearing impairment and the plea court instructed [Petitioner] to inform the plea court if he could not hear what was being said, which [Petitioner]
did on several occasions throughout the colloquy. As the record supports the PCRA court's conclusion that this claim is meritless, no relief is due.
As his second issue on appeal, [Petitioner] asserts that plea counsel was ineffective for advising him that he would receive only three and a half to seven years of incarceration if he entered a guilty plea. The PCRA court found that this claim had no merit.
The record reflects that [Petitioner] testified at the PCRA hearing that pursuant to discussions with plea counsel, he understood that by pleading guilty, he “would probably get like three and a half years to seven.” [Petitioner] denied that plea counsel ever informed him that he could receive a longer term of incarceration. He admitted that he signed the plea colloquy, which states that the maximum possible punishments for the crimes to which he pled guilty was thirty years of incarceration, but [Petitioner] testified that he did not understand those portions of the colloquy and “just went along with what I did because I trusted [plea counsel].” [Petitioner] further denied that he received any letters from plea counsel explaining the maximum possible punishments for the crimes or that he understood the maximum possible punishments as stated by the plea court during his oral colloquy.
Plea counsel, on the other hand, testified that he spoke with [Petitioner] on several occasions regarding the maximum possible sentence he could receive for the crimes to which [Petitioner] pled guilty and that [Petitioner] expressed an understanding of what the maximum sentences were. Plea counsel further testified that he wrote a detailed letter to [Petitioner] on September 18, 2012, wherein he, inter alia, “provided the range of sentences, the maximum and the mandatories,” and explained in reference to a prior plea deal offered by the Commonwealth, “that a recommendation is not something the [plea court] has to accept.” Furthermore, plea counsel testified that a representative from the Office of the Public Defender reviewed the written plea colloquy with [Petitioner], as was the practice of that office, and plea counsel followed up with [Petitioner] afterwards to ensure he had no questions about the colloquy. According to plea counsel, [Petitioner] expressed no confusion about the possible term of incarceration to which he was exposed by virtue of his guilty plea. Furthermore, the record reflects that during the oral colloquy, the plea court informed [Petitioner] that his “maximum exposure on the three cases would be thirty [] years [of] imprisonment,” and [Petitioner] indicated that he understood.
The PCRA court found plea counsel's testimony to be credible and concluded that plea counsel did not advise [Petitioner] that he would only receive three and a half to seven years of incarceration if he pled guilty, and as stated, we defer to the PCRA court's credibility determinations. Moreover, “[t]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be
knowingly, voluntarily, and intelligently made.” As the record reflects that [Petitioner]'s guilty plea was knowingly, voluntarily and intelligently entered, no relief is due.
In his final issue raised on appeal, [Petitioner] contends that plea counsel “scared” him into pleading guilty by telling him he had little chance of winning at trial and that [Petitioner] would be sentenced to ten to thirty years of incarceration if he lost at trial. [Petitioner] suggests that because he asserted his innocence and there were defenses that could have been presented, i.e., that his stepdaughter had run away to be with her boyfriend a week prior to making the allegations of sexual assault against [Petitioner], that counsel's statements induced him to plead guilty when he should not have.
“Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” Relying upon [Petitioner]'s answers during his plea colloquy and plea counsel's testimony regarding why he recommended that [Petitioner] enter a guilty plea, the PCRA court found that the issue was meritless, as “[t]here is no indication that [plea counsel]'s advice was outside the range of competence for a criminal attorney[.]”
The record reflects that plea counsel represented [Petitioner] at both of his preliminary hearings. At that time, he zealously questioned the witnesses presented and advocated on behalf of his client. The record from the first preliminary hearing (pertaining to [Petitioner]'s sexual assault of A.H. and intimidation of A.H.'s mother as a witness) reflects that A.H. testified regarding the sexual acts perpetrated against her by [Petitioner]. She testified that he began by touching her vagina and breasts over her clothes and ultimately began raping her when she was fifteen years old, and that her mother was complicit in the assaults, purchasing condoms for [Petitioner] to use to have sex with her daughter. A.H.'s mother had given a statement to the police confirming her knowledge of the assaults and that she bought condoms at [Petitioner]'s direction so that he could have sex with A.H. A.H.'s mother further testified that [Petitioner] threatened that he would throw her out of the house if she did not recant. During A.H.'s mother's testimony at the preliminary hearing, the record reflects that [Petitioner] had to be instructed by the lower court not to make “gestures” at the witness.
The record from the second preliminary hearing, pertaining to [Petitioner]'s intimidation of T.H., reveals that T.H. reported to police in 2009 that [Petitioner]'s adult son had touched him on his “bad spot,” but subsequently recanted. T.H. testified that he recanted because [Petitioner] told him that if he did not recant, T.H. would be removed from his mother's care. T.H. testified that he was alone with [Petitioner] when [Petitioner] threatened him. A.H. testified
that she was present on several occasions when [Petitioner] threatened T.H. and told him to recant his allegations against [Petitioner]'s son.
In his brief on appeal, [Petitioner]'s claims of innocence are all based upon his perception that the witnesses did not provide credible testimony at the preliminary hearings. At the PCRA hearing, plea counsel testified that he believed A.H. was a very credible witness. Plea counsel observed “[w]hen watching her testifying, seeing her demeanor, she had an apparent blatantly outright fear of looking at [Petitioner].” Plea counsel stated that he considered all possible defenses and did not believe any would be successful at trial:
Much of what [Petitioner] was saying was relying upon [A.H.] having sex with [her] boyfriend. I considered that as problematic at trial, evidentiary reasons why. The issue of anger between the two of them[,] I considered that. I read through the diaries that were spoken about. To me[,] it would have been the only defense that I could have come up with but it did not seem to be a strong defense simply because everything that was written in the diary that I saw could easily be written because she wanted out of the house, not necessarily [to be] with the boyfriend.
Plea counsel specifically considered the fact that A.H. ran away a week before disclosing the alleged assaults to police, but counsel did not think this information helped [Petitioner]'s defense. Although [Petitioner] thought this was clear proof that A.H. had a motive to lie - that A.H. made up the allegations so that she could be with her boyfriend, of whom [Petitioner] did not approve, the record reflects that A.H. testified at the preliminary hearing that [Petitioner] did not approve of her boyfriend because he found her dating to be comparable to her “cheating” on [Petitioner]. If believed, this testimony would be detrimental to his case.
Plea counsel testified that he recommended [Petitioner] accept the Commonwealth's plea offer “based on the facts,” and his observation of A.H.'s “testimony and her demeanor during her testimony,” which he categorized as “quite telling.” Plea counsel also noted that [Petitioner] was facing a mandatory minimum sentence of ten years upon conviction of rape, making the plea deal, which did not include the rape charge, a “good deal” from plea counsel's point of view.
Viewing the record in the light most favorable to the Commonwealth as we are required, we see no error in the PCRA court's determination that counsel was not ineffective for recommending that [Petitioner] plead guilty. We agree with the PCRA court that plea counsel did not “scare” [Petitioner] into pleading guilty, but provided him with information about the criminal process and counsel's opinion based upon his observations and knowledge as a criminal
attorney. Like the PCRA court, we discern nothing in the record that leads us to conclude that counsel's advice was outside the range of competence required for an attorney in a criminal case. As such, [Petitioner] is due no relief.(ECF No. 11-1, pp.179-87) (internal citations and footnote omitted).
In Hill v. Lockhart, 474 U.S. 52 (1984), the United States Supreme Court explained that “[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Id. at 56 (internal quotations and citations omitted). Where, as is the case here, the petitioner entered his plea upon the advice of counsel, the voluntariness of his plea depends on whether the advice counsel gave “was within the range of competence demanded of attorneys in criminal cases[,]” Id. (internal quotations and citations omitted), and the petitioner must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on his challenge to his guilty plea. Hill, 474 U.S. at 57-59.
Strickland recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets a minimal standard of competence. 466 U.S. at 685-87. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Burt v. Titlow, 571 U.S. 12, 24 (2013). Under Strickland, it is a petitioner's burden to establish that his “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Titlow, 571 U.S. at 22 (quoting Strickland, 466 U.S. at 690); Richter, 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689).
Strickland also requires that a petitioner demonstrate that he was prejudiced by his trial counsel's deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. When a petitioner claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, he “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 857 (3d Cir. 2017) (“[W]here a defendant claims ineffective assistance based on a pre-trial process that caused him to forfeit a constitutional right, the proper prejudice inquiry is whether the defendant can demonstrate a reasonable probability that, but for counsel's ineffectiveness, he would have opted to exercise that right.”).
Because the state courts denied Petitioner's claims on the merits, this Court's review of them is very limited. It is not for this Court to decide whether the Superior Court's decision was right or wrong. Rather, under AEDPA's standard of review, as codified in relevant part at 28 U.S.C. § 2254(d)(1), it is Petitioner's burden to show that the Superior Court's adjudication was “contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States,” or as codified in relevant part at 28 U.S.C. § 2254(d)(2), was an “unreasonable determination of the facts in light of the evidence presented.” Petitioner has not met his burden as to either.
Here, the “clearly established Federal law” is that which is set forth in Strickland (and its progeny, such as Hill). See, supra. The Superior Court analyzed Petitioner's claims of ineffective assistance of counsel under the three-pronged test for ineffective assistance of counsel claims in Pennsylvania, which requires a petitioner plead and prove: “(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.” (ECF No. 11-1, p.178) (citing Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014)).
Pennsylvania law for judging ineffectiveness corresponds with the Strickland standard. Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987); Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). Although Pennsylvania courts typically articulate a three-prong test for gauging ineffective assistance claims and Strickland sets forth its test in two prongs, the legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts.
The Third Circuit has held that this three-prong standard utilized by Pennsylvania courts is not “contrary to” Strickland, the standard enunciated by the United States Supreme Court in judging ineffectiveness claims, see Wertz v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000), and given that the state court applied a standard that does not contradict Strickland, and the fact that the Court is unaware of a case with materially indistinguishable facts where the Supreme Court arrived at the opposite result, the Superior Court's adjudication of this claim satisfies review under the “contrary to” clause of § 2254(d)(1). See Williams, 529 U.S. at 406 (a “run-of-the-mill” state-court decision applying the correct legal rule from Supreme Court decisions to the facts of a particular case does not fit within § 2254(d)(1)'s “contrary to” clause and should be reviewed under the “unreasonable application” clause). The inquiry now becomes whether its decision was an objectively unreasonable application of that law.
Under the “unreasonable application” provision of § 2254(d)(1), the appropriate inquiry is whether the state courts' application of Strickland to a petitioner's ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland. To satisfy his burden under § 2254(d)(1), a petitioner must do more than convince this Court that the Superior Court's decision denying a claim was incorrect. Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263, 281 (3d Cir. 2016). He must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409). This requires that he establish that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. In addressing Strickland's ineffective assistance standard and its relationship to AEDPA, the Supreme Court explained,
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and when the two apply in tandem, review is ‘doubly' so, Knowles, 556 U.S., at 123. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Harrington, 562 U.S. at 105. See also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (“A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself. Federal habeas review of ineffective assistance of counsel claims is thus doubly deferential.”) (internal citations and quotations omitted).
Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard, there is no basis for this Court to conclude that the Superior Court's adjudication of Petitioner's ineffective assistance of counsel claims contained within claim one was an “unreasonable application of” Strickland. Petitioner has not established that the Superior Court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement []” Harrington, 562 U.S. at 103, and, consequently, claim one should be denied.
3. Claim 2
In claim two, Petitioner argues that the PCRA court erred when it dismissed his second PCRA petition on grounds other than those set forth in its Notice of Intent to Dismiss and because he was not given an opportunity to amend to correct any defects.
Federal courts, including the Third Circuit, have held that a claim like this one concerning state post-conviction proceedings is simply not cognizable as a claim in federal habeas proceedings filed by a state convict. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (“habeas proceedings are not the appropriate forum for [petitioners] to pursue claims of error at the PCRA proceeding”); Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“[T]he federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation .... Federal habeas power is ‘limited . . . to a determination of whether there has been an improper detention by virtue of the state court judgment.'”) (internal citations omitted). See also Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011) (holding that “alleged errors in a postconviction proceeding are not grounds for § 2254 review because federal law does not require states to provide a post-conviction mechanism for seeking relief.”); Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“[E]ven where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to detention itself”) (citing Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988)); Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Because the Constitution does not guarantee the existence of state post-conviction proceedings, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas application.”) (internal citations, quotation, and alteration omitted); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) (“relief may not be granted to a habeas petitioner for alleged deficiencies in a state's postconviction procedure because such claims relate to a state civil matter, not the custody of a defendant”) (citing Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986)); Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“because the constitutional error [petitioner] raises focuses solely on the State's post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim”) (citing Hopkinson v. Shillinger, 866 F.2d 1185, 1219-20 (10th Cir. 1989)); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (“infirmities in state habeas proceedings do not constitute grounds for relief in federal court”); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.”) (internal quotation omitted); Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987). But cf. Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir 1996) (noting that errors in state collateral review are not viable claims for federal habeas corpus relief “[u]nless state collateral review violates some independent constitutional right, such as the Equal Protection Clause”); Dickerson v. Walsh, 750 F.2d 150, 153 (1st Cir. 1984) (adjudicating capital defendant's Equal Protection claim because “[t]he fact that a petitioner's underlying claim can only be addressed in state court does not give a state the license to administer its laws in an unconstitutional fashion.”). Because Petitioner's claim relates only to the PCRA court's alleged error in adjudicating his second PCRA petition, he is not entitled to relief on this claim as it is not cognizable on federal habeas review.
Nevertheless, the Superior Court did note that the PCRA court's Rule 1925(a) opinion did correctly note that Petitioner's claims in his second PCRA petition were time-barred and therefore the Notice of Intent to Dismiss did properly inform him why his petition was denied without a hearing. (ECF No. 11-1, p.292.)
4. Claims 3, 4, & 5
In claim three, Petitioner argues that he was denied due process because his plea counsel and counsel on direct appeal were both from the public defender's office, and, therefore, in Petitioner's eyes, that caused direct appeal counsel to “abandon” any claims of ineffective assistance of plea counsel that counsel should have raised on direct appeal. In claim four, Petitioner argues that the prosecution committed misconduct in bringing the charge of intimidation of a witness at docket number CP-32-CR-0000978-2012. In claim five, Petitioner argues that plea counsel was ineffective for failing to move to withdraw the guilty plea after the terms of the plea were different than what was negotiated. Petitioner raised each of these three claims for the first time in his second PCRA petition that he filed on or about March 28, 2016. However, the Superior Court found that all of the claims raised in Petitioner's second PCRA petition were time barred because the petition was filed beyond one year from the date Petitioner's judgments of sentence became final and he did not argue the applicability of any of the PCRA's statutory exceptions to the time-bar. See (ECF No. 11-1, p.292); see also 42 Pa. C.S.A. § 9545(b)(i)-(iii).
Applicable here, the procedural default doctrine prohibits federal habeas courts from reviewing a state court decision involving a federal question if the state court declined to rule on the merits of the claim because it determined that the petitioner did not comply with a state procedural rule, and that rule is independent of the federal question and adequate to support the judgment. See Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). State procedural rules include, but are not limited to, the PCRA's timeliness requirement, 42 Pa. C.S.A. § 9545(b), failing to adequately develop the claim in one's briefing, Pa. R.A.P. 2116, 2119(a), and presenting a claim on appeal without having presented it to the lower court, Pa. R.A.P. 302(a). The requirements of “independence” and “adequacy” are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground rested primarily on federal law or is so “interwoven with federal law” that it cannot be said to be independent of the merits of petitioner's federal claims. Coleman v. Thompson, 501 U.S. 722, 739-40 (1991). A state rule is “adequate” if it is “firmly established and regularly followed.” Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016) (citation omitted). These requirements ensure that “federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule,” and that “review is foreclosed by what may honestly be called ‘rules' . . . of general applicability[,] rather than by whim or prejudice against a claim or claimant.” Bronshtein v. Horn, 404 F.3d 700, 707, 708 (3d Cir. 2005).
As stated in the preceding paragraph, a state procedural ground for denying a PCRA claim in Pennsylvania includes the PCRA's timeliness requirement, 42 Pa. C.S. § 9545(b), which requires that a petitioner file his PCRA petition within one-year of his conviction becoming final. This statutory law is “independent” of federal law, and since at the time Petitioner filed his PCRA petition Pennsylvania courts consistently and regularly denied review of claims when not filed within the time proscribed by § 9545(b), it was also “adequate”. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) (time requirement for filing PCRA petition is mandatory and jurisdictional in nature), abrogated on other grounds by Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008). Accordingly, claims three, four and five are procedurally defaulted.
A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, by demonstrating either: (1) “cause” for the default and “actual prejudice” as a result of the alleged violation of federal law; or (2) that the failure to consider the claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. In his response, however, Petitioner appears to invoke the narrow equitable exception to the doctrine of procedural default found in Martinez v. Ryan, 132 S.Ct. 1309 (2012), where the Supreme Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 1315. This exception is available to a petitioner who can show that: (1) his procedurally defaulted ineffective assistance of trial counsel claim has “some merit,” Id. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)); and that (2) his state post-conviction counsel was “ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984).” Id.
To demonstrate that a claim has “some merit,” a petitioner must “show that reasonable jurists could debate whether (or, for that matter, agree that) . . . the issues presented were adequate to deserve further encouragement to proceed further.” Miller-El, 537 U.S. At 336 (internal citation, quotation marks, and alteration omitted). This is a threshold inquiry that “does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. at 327, 336. In addition to demonstrating that the claim has “some merit,” Petitioner must also show that state post-conviction counsel was ineffective under the standards of Strickland v. Washington to excuse the procedural default of the underlying claim. Martinez, 132 S.Ct. at 1318. As previously stated, in order to prove ineffective assistance of counsel under Strickland v. Washington, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 687-88. A petitioner must also show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. These are referred to as the “performance” and “prejudice” prongs, respectively. See Bey v. Superintendent Greene SCI, 856 F.3d 2300. 238 (3d Cir. 2017).
The Third Circuit Court of Appeals recently adopted the following rule with respect to Martinez. If a petitioner can show “that his underlying ineffective-assistance-of-trial-counsel claim has some merit and that his state post-conviction counsel's performance fell below an objective standard of reasonableness, [then] he has shown sufficient prejudice from counsel's ineffective assistance that his procedural default must be excused under Martinez.” Workman v. Superintendent Albion SCI, 915 F.3d 928, 941 (3d Cir. 2019). However, as this Court has stated, “Martinez v. Ryan does not allow habeas petitioners who fail to make a claim until the federal habeas stage to obtain an evidentiary hearing and a de novo evaluation of the claim on the mere assertion that PCRA counsel was ineffective.” Boggs v. Rozum, No. 3:14-cv-34, 2017 WL 1184062, at *9 (W.D. Pa. Jan. 5, 2017).
As an initial matter, the undersigned notes that claim five is the only defaulted claim to which Martinez could possibly apply, as neither claim three nor claim four are claims of ineffective assistance of plea counsel. In claim five, Petitioner argues that plea counsel was ineffective for failing to move to withdraw the guilty plea after the terms of the plea were different than what was negotiated. Specifically, he claims that he received only one letter from his plea counsel, a letter dated September 18, 2012, which was about a week before he was charged with the one additional count of intimidation of a witness or victim at docket number CP-32-CR-0000978-2012, and in that letter, counsel outlined a plea offer whose terms were different from the plea that he ultimately took on December 7, 2012. That letter informed Petitioner that if he were to plead guilty to one count of aggravated assault at CP-32-CR-0000827-2012 and the charge of intimidation of a witness at CP-32-CR-0000822-2012, then the Commonwealth would dismiss the remaining charges and recommend to the court that the sentences for the two pleas run concurrently. The problem with Petitioner's argument, however, is that it does not reflect what happened after he was charged with the extra count of witness intimidation on September 24, 2012, and it assumes that no further communication occurred between he and his attorney after the additional charge was filed, which altered the plea negotiations between the Commonwealth and the defense. It also assumes that Petitioner was never informed of what he was pleading guilty to on December 7, 2012. All of these assumptions are rebutted by the record, and most importantly, the written and oral plea colloquy, which clearly demonstrates that Petitioner had knowledge of the charges to which he was pleading guilty and the sentencing recommendation that was to be made to the judge by the Commonwealth in exchange for Petitioner's guilty plea. As such, counsel had no basis to move to withdraw the plea based on the argument that the terms of the plea were different than what was negotiated and set forth in the September 18, 2012 letter. Accordingly, this claim does not meet the “some merit” threshold standard necessary to overcome its procedural default pursuant to Martinez, and, as a result, claims three, four and five are procedurally defaulted.
Nevertheless, the undersigned observes that claim three is without merit for the same reasons stated by the PCRA court in its Rule 1925(a) opinion dated April 5, 2017. See (ECF No. 11-1, pp.241-42.)
The letter also detailed the offense gravity scores for each of the charges in the two cases that were filed against him at that time, as well as the recommended range of minimum sentences and maximums permitted for each offense, and where applicable the mandatory minimums.
Furthermore, as testified to by his plea counsel in the PCRA hearing held on December 3, 2014, the plea offer set forth in his letter dated September 18, 2012, was actually worse than the deal that Petitioner eventually did plead to after the third case was filed, and the new deal was explained to Petitioner in detail prior to the plea hearing on December 7, 2012.
5. Claim 6
In claim six, Petitioner argues that plea counsel was ineffective for failing to properly assess and investigate evidence or develop a defense. While Petitioner did raise this claim in his first PCRA petition, and the PCRA court found that plea counsel was not ineffective in the manner alleged for multiple reasons, see ECF No. 11-1, pp.104-05, Petitioner did not exhaust the claim because he did not pursue it on appeal.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman, 501 U.S. at 731). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); O'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a noncapital case must have presented every federal constitutional claim raised in his habeas petition to the Common Pleas Court and then the Superior Court either on direct or PCRA appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The petitioner must demonstrate that he raised the claim in the proper state forums through the proper vehicle, not just that he raised a federal constitutional claim before a state court at some point. O'Sullivan, 526 U.S. at 845 (a petitioner must have presented a claim through the “established” means of presenting a claim in state court at the time); Ellison v. Rogers, 484 F.3d 658, 660-62 (3d Cir. 2007) (the petitioner's claims of ineffective assistance were not exhausted properly even though he had raised those claims on direct review, because state law required that ineffective assistance claims be raised in state post-conviction review, and the petitioner had not sought such review).
“When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). In such cases, however, applicants are considered to have procedurally defaulted their claims, Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue . . . or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule ....”) (internal citations omitted), and, as previously noted herein, federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To show cause, a petitioner must demonstrate “some objective factor external to the defense” that prevented compliance with the state's procedural requirements. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[,]” Schlup v. Delo, 513 U.S. 298, 316 (1995).
Petitioner did not present claim six to the Superior Court on appeal from the dismissal of his first PCRA petition where he raised it, and the claim is now procedurally defaulted because he cannot go back and do so. Petitioner, however, has not argued cause and prejudice or a fundamental miscarriage of justice to overcome the default, and to the extent that he relies on Martinez to overcome his default of claim six, as discussed in relation to the previous claim, Martinez is inapplicable because claim six was litigated before the PCRA court, which was the “initial-review collateral proceeding,” and PCRA counsel's decision not to pursue the claim on appeal cannot establish “cause” to avoid the default. Martinez, 132 S.Ct. at 1320 (stating that the holding in this case “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial ....”); Norris v. Brooks, 794 F.3d 401, 404-05 (3d Cir. 2015). Accordingly, this claim is procedurally defaulted.
6. Claim 7
In claim seven, Petitioner argues that he was never informed of his right to a jury trial or his right to move to withdraw his plea upon a showing of good cause. It is unclear whether Petitioner raises this claim in the context of ineffective assistance of counsel, trial court error, or a constitutionally defective plea, but what is clear is that Petitioner never raised this claim in the state court in either his direct appeal or either one of his PCRA proceedings. As such, the claim was not exhausted and is now procedurally defaulted.
The undersigned notes, however, that to the extent Petitioner is raising this claim in the context of ineffective assistance of counsel, it is possible that he raised such a claim in his second PCRA petition. Specifically, in that petition, Petitioner claimed that all prior counsel were ineffective for failing to address “post-plea rights that Petitioner was entitled to.” (ECF No. 111, pp.238-39.) If said claim was the same claim that Petitioner raises in claim seven, then the undersigned would conclude that claim seven is procedurally defaulted for the same reasons discussed above with respect to claims three, four and five. Additionally, to the extent Petitioner relies on Martinez and his PCRA counsel's ineffectiveness to excuse the procedural default of this claim, he has not shown that this claim has “some merit” or that his PCRA counsel was ineffective since such a claim would have been denied if raised by PCRA counsel, or by any of his prior counsel in his underlying state court proceedings. According to the written plea colloquy, Petitioner was informed of both his constitutional right to a jury trial and his right to move to withdraw his guilty plea before or within ten (10) days after sentencing, and he initialed that he understood these rights. As the record clearly rebuts Petitioner's claim that he was not informed of his right to a trial by jury and his right to move to withdraw his guilty plea, and because counsel cannot be deemed ineffective for failing to raise a meritless claim, United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999), the procedural default of this claim cannot be excused pursuant to Martinez.
The written plea colloquy was included in the state court record provided to the Court but was not included in the exhibits filed by Respondents on the docket.
7. Claim 8
In claim eight, Petitioner argues a layered claim of ineffective assistance of counsel. However, the claim is not set forth clearly, and although Petitioner appears to argue that he was prejudiced by his plea counsel, direct appeal counsel and PCRA counsel, the facts he sets forth in support of this claim relate only to the conduct of his PCRA counsel's failure to (1) “argue the right standard for Petitioner entering a plea on an attorney's advice[,]” (2) “fully apprise [the court of] the plea counsel's September 18th letter to Petitioner to prove Petitioner was misled[,]” and (3) “preserve the underlying colloquy issues and the underlying issues against direct appeal counsel and plea counsel.” (ECF No. 8, p.4.)
To the extent Petitioner intends this to be a claim of ineffective assistance of PCRA counsel, such a claim is not cognizable on federal habeas review pursuant to 28 U.S.C. § 2254(i), which provides that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” See Martinez, 132 S.Ct. 1320 (discussing section 2254(i)); Martel v. Clair, 132 S.Ct. 1276, 1287 n.3 (2012) (same); Taylor v. Horn, 504 F.3d 416, 437 n.17 (3d Cir. 2007) (same), cert. denied, 555 U.S. 846 (2008). Therefore, standing alone, PCRA counsel's alleged ineffectiveness does not provide a basis for habeas relief.
However, it may be possible that Petitioner is attempting to raise the same layered claim of ineffective assistance that he raised in his second PCRA petition, specifically that all prior counsel were ineffective for failing to raise and address the following: (1) Petitioner's sentence being excessive, (2) the court's abuse of discretion in sentencing Petitioner, (3) the court's failure to individualize Petitioner's sentence, (4) double counting of factors of the alleged crime to augment Petitioner's sentencing, (5) post-plea rights that Petitioner was entitled to, (6) failure to withdraw Petitioner's plea after the charges were different than what Petitioner negotiated, and (7) failure to meaningfully investigate evidence supplied by Petitioner. To the extent that he is, and to the extent that these individual claims of ineffective assistance of counsel have not already been addressed elsewhere in this Report, then his layered claim is procedurally defaulted for the same reasons stated above in relation to claims three, four and five.
8. Required notice with regard to claims 5, 6 and 7
Finally, the undersigned notes that Respondents did not argue in their Response that claims five, six and seven are procedurally defaulted. However, the court has “the authority to raise the issue of procedural default sua sponte[,] Evans v. Secretary Pennsylvania Dept. of Corr., 645 F.3d 650, 656 n.12 (3d Cir. 2011), as long as the petitioner is given fair notice and an opportunity to respond and is not prejudiced. Id. (citing Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001); Sweger v. Chesney, 294 F.3d 506, 520 n.13 (3d Cir. 2002) (courts may consider sua sponte whether procedural default bars claim). See Day v. McDonough, 547 U.S. 198, 205-10 (2006) (raising statute of limitations sua sponte); United States v. Bendolph, 409 F.3d 155, 161-70 (3d Cir. 2005) (same). This Report and Recommendation gives Petitioner the required notice and he has an opportunity to respond to the issue of procedural default in objections.
9. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. As provided for in 28 U.S.C. § 2253, “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Petitioner has not made the requisite showing in these circumstances. Accordingly, a certificate of appealability should be denied.
III. CONCLUSION
For the following reasons, it is respectfully recommended that the Amended Petition for Writ of Habeas Corpus (ECF No. 8) be denied and that a certificate of appealability also be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.
Ralph Duncan Counsel of Record