Opinion
Civil Action 2: 20-cv-1936
06-30-2022
ALAN TROY HOUSER, Petitioner, v. MICHAEL ZAKEN, THE DISTRICT ATTORNEY OF THE COUNTY OF WESTMORELAND, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
William S. Stickman, United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Petitioner, Alan Troy Houser (“Houser”), a state prisoner currently confined at the State Correctional Institution at Mercer, in Mercer, Pennsylvania, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 5). He is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Westmoreland County, Pennsylvania, on August 28, 2015, in criminal case CP-65-CR-4317-2014. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability as to each claim be denied.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Houser's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a) ; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Houser cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
Petitioner is serving consecutive sentences. It appears that he is currently serving a sentence of 10-20 years imposed on him by the Court of Common Pleas of Westmoreland County, Pennsylvania, on May 1, 2015, at criminal case CP-65-CR-3082-2013. Houser is not challenging the judgment of sentence in that case. Rather, in the instant federal habeas petition he challenges the judgment of sentence imposed on him by the Court of Common Pleas of Westmoreland County on August 28, 2015, at criminal case CP-65-CR-4317-2014, a sentence which is to run consecutively to the sentence imposed at CP-65-CR-3082-2013. In Peyton v. Rowe, 391 U.S. 54 (1968), the Supreme Court of the United States held that when a prisoner is serving consecutive sentences, the “in custody” requirement of § 2241(c)(3) is satisfied and the prisoner need not wait until the termination of the first sentence. Id. at 67.
B. Relevant and Procedural Background
Respondents electronically filed as exhibits to their Answer (ECF No. 22) relevant parts of the state court record. For ease of reference, the Court uses the page numbers from the CM/ECF header. Respondents have also submitted an electronic copy of the parties' appellate briefs (ECF No. 27) and a hard copy of the original file from the Court of Common Pleas for Houser's criminal case, including the transcripts for the Guilty Plea Proceeding held on June 2, 2015 (225-12), the Sentencing Proceeding held on August 28, 2015 (225-13 and 235-83), and the PCRA evidentiary hearings held on November 30, 2017 (235-87), March 19, 2018 (237-20), and September 20, 2019 (240-15).
On November 12, 2014, Houser was charged by Criminal Information with one count of Criminal Conspiracy to Hindering Apprehension or Prosecution and one count of Hindering Apprehension or Prosecution as a principal or accomplice. Houser entered a general guilty plea to both counts. The Superior Court of Pennsylvania recounted the background of this case in its decision affirming the denial of state post-conviction relief for Houser, as follows:
Houser's case was consolidated with the case brought against his sister, Bridget Houser, in which she was charged with identical crimes, at criminal case no. CP-65-CR-004325-2015.
The instant case arises out of an investigation of [Houser] for attempting to coerce a witness not to testify during at least one three-way call with [Houser] and another individual while he was incarcerated at the Westmoreland County Prison. As a result, [Houser] was charged on September 1, 2014, with [criminal] conspiracy to hinder apprehension or prosecution by destroying evidence or tampering with a witness, in violation of 18 Pa.C.S.A. § 903[,] and hindering apprehension or prosecution by [concealing or] destroying evidence or tampering with a witness, in violation of 18 Pa.C.S.A. § 5105(a)(3). A preliminary hearing was scheduled before Magisterial District Judge Frank J. Pallone, Jr. on September 25, 2014, and all charges were waived for court.
On June 2, 2015, [Houser], represented by [] Emily Smarto, [Esq. (“Attorney Smarto”)] proceeded to a jury trial before [the trial] court. Prior to the trial beginning, [Houser] entered a general guilty plea to the above-referenced charges, and sentencing was deferred pending a pre-sentence investigation [report]. On August 28, 2015, [Houser] was sentenced as follows: At count one, [Houser] was sentenced to 21 to 42 months['] incarceration. At count two, [Houser] was sentenced to 21 to 42 months['] incarceration consecutive to count one. This sentence was also to run consecutively to the sentence imposed at case number 3802 C 2013.[ ]
Attorney Elliott-Rentler had been court appointed to represent Houser's sister, Bridget Houser, in the companion case regarding the hindering apprehension. N.T., 9/20/2018, p.66.
[ 1 ]The record indicates [Houser was sentenced to 11 to 22 years' incarceration after a jury convicted him of aggravated assault, 18 Pa. C.S.A. § 2701(a)(1), at docket number 3802 C 2013.
Superior Court Memo., 4/28/2020 (quoting PCRA Court Opinion, 7/3/2019, pp. 1-2 (extraneous capitalization, footnote, and some record citations omitted)) (ECF No. 22-11, pp. 25-26). Houser did not file a direct appeal from his conviction and sentence.
Houser filed a timely pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”) and a Petition to Request an Evidentiary Hearing, in which he raised additional issues. Attorney Brian Aston was appointed to represent
Houser during the PCRA proceedings. On July 28, 2016, Attorney Aston filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), to which Houser filed a pro se a response in opposition.
On April 26, 2017, Attorney Aston filed a supplemental Turner-Finley no-merit letter, to which Houser filed a pro se response. On May 9, 2017, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, and directed Houser to file a written response to the defects enumerated in that notice. After Houser filed his response, the PCRA court scheduled an evidentiary hearing. Prior to the evidentiary hearing, Attorney Aston was permitted to withdraw as PCRA counsel, and Houser was informed that he could retain private counsel or proceed pro se. Houser elected to proceed pro se.
An evidentiary hearing was held on September 20, 2018, at which Attorney Smarto, Attorney Patricia Elliott-Rentler,[5]and Donald Thomas Pynos, Jr., a corrections counselor at the Westmoreland County Prison, testified. N.T., 9/20/2018. (Evidentiary Transcript, 240-15). At the conclusion of the hearing, the PCRA court ordered the parties to submit additional briefing on the legality of the process by which the Commonwealth obtained Houser's phone records from the Westmoreland County Prison.
The PCRA court denied Houser's PCRA petition on July 3, 2019. Commonwealth v. Houser, No. 4317 C 2014, Opinion and Order of Court, 7/3/2019 (unpublished) (ECF No. 22-11, pp. 9-17). Houser appealed to the Superior Court of Pennsylvania and on April 28, 2020, the Superior Court affirmed the denial of the PCRA petition. Commonwealth v. Houser, No. 1122 WDA 2019 (Pa. Super. Ct. 2020) (unpublished) (Id., at pp. 25-35). The Supreme Court of Pennsylvania denied Houser's petition for allowance of appeal on November 19, 2020. Commonwealth v. Houser, No. 180 WAL 2020 (Pa. 2020). (Id., p. 24).
Having been denied relief in state court, Houser filed the instant federal habeas petition in which he raises seven issues. (ECF No. 5). Respondents filed an Answer (ECF No. 22), to which Houser filed a Reply. (ECF No. 24). The undersigned has reviewed the filings of the parties, as well as the original state court record, including the Guilty Plea Petition signed by Houser and his attorney on June 2, 2015; the transcripts from Houser's plea, sentencing, and PCRA proceedings, the appellate briefs filed by the parties with the Superior Court of Pennsylvania, and the Memorandum of the Superior Court of Pennsylvania filed April 28, 2020. The matter is fully briefed and ripe for disposition.
C. The Standard for Habeas Relief Under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the AEDPA, “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).
A finding of fact made by a state court, including credibility determinations, always has been afforded considerable deference in a federal habeas proceeding. Vickers, 858 F.3d at 850 (even in pre-AEDPA cases, “ ‘federal habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been observed by the state trial court, but not by them' ”) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d):
AEDPA requires federal courts to give due regard to state court rulings. Where the state court has adjudicated the merits of a petitioner's habeas claims, federal habeas relief is available only if the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”Becker v. Sec'y Pennsylvania Dep't of Corr., 28 F.4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. In applying it, this Court's first task is to determine what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). “The clearly established law” is “ ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.' ” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (3d Cir. 2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States,” is identified, this Court must determine whether the state court's adjudication of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is contrary to clearly established Federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” id. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Id. at 406. For that reason, the issue in most federal habeas cases is whether the adjudication by the state court survives review under the “unreasonable application” clause of § 2254(d)(1).
“A state court decision is an ‘unreasonable application of federal law' if the state court ‘identifies the correct governing legal principle,' but ‘unreasonably applies that principle to the facts of the prisoner's case.' ” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his burden under this provision of AEDPA's standard of review, a petitioner must do more than convince this Court that the state court's decision was incorrect. Id. He must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Dennis). This means that a petitioner must show 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. As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102.
The standard of review set forth at § 2254(d)(2) applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). “[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.” Dennis, 834 F.3d at 281 (quoting § 2254(d)(2) and citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.' ” Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)); see also Becker, 28 F.4th at 464 (stating that “close calls - decisions upon which reasonable minds might disagree - are essentially insulated from federal court reversal AEDPA, which requires federal judges to defer to the reasonable state trial court findings . . .).
The first consideration for the Court in reviewing a federal habeas petition is to determine whether the petition was timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do not challenge the timeliness of the filing of the Petition and the undersigned agrees that the instant Petition was timely filed.
When a habeas petitioner claims ineffective assistance of counsel, “review is ‘doubly deferential,' because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'.” Woods v. Etherton, 578 U.S. 113, 116 (2016) (quoting Titlow, 571 U.S. at 22).
Various standards must be met before the Court can review the merits of Houser's habeas petition.
1. Has the Petition Presented Cognizable Habeas Claims?
Habeas relief may be afforded to a state prisoner only when his or her custody violates federal law. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010). Houser has presented seven claims in this federal habeas petition. His four ineffective assistance of counsel claims are cognizable; however, as discussed below, because Houser entered into a valid guilty plea, his due process claims are not.
2. Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Court Remedies
Among AEDPA's procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional claims in state court through the proper procedures before he litigates them in a federal habeas petition. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It 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.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” in order to satisfy the exhaustion requirement. Id. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert, 387 F.3d at 233-34.
Sections 2254(d)(2) and(e)(1) “express the same fundamental principle of deference to state court findings[,]” and federal habeas courts “have tended to lump the two provisions together as generally indicative of the deference AEDPA requires of state court factual determinations.” Lambert, 387 F.3d at 235. The Court of Appeals has instructed that§ 2254(d)(2), when it applies, provides the “overarching standard” that a petitioner must overcome to receive habeas relief, while 2254(e)(1) applies to “specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision.” Id.
b. Procedural Default
If a claim has not been fairly presented “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citations omitted). The doctrine of procedural default serves as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to review a habeas claim. Federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, -U.S. ---, 137 S.Ct. 2058, 2065 (2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, -- U.S. ---, 139 S.Ct. 1613 (2019)). The burden lies with a petitioner to demonstrate circumstances that would excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
On May 9, 2000, the Supreme Court of Pennsylvania issued Order No. 218 declaring that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam). The Court of Appeals for the Third Circuit has recognized the validity of this Order. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
E. Discussion
The petition asserts that Houser is entitled to relief under 28 U.S.C. § 2254 for seven reasons. The first four grounds are that he received ineffective assistance of trial counsel because his trial counsel:
(1) failed to investigate if Houser's inmate telephone records from Westmoreland County Prison were released improperly;
(2) failed to file pretrial motions, including a motion to suppress the telephone records;
(3) failed to investigate whether a rule or regulation applied to obtaining inmate telephone records; and
(4) induced his guilty plea by promising him a more lenient sentence than he received. Houser has also raised three underlying, direct claims of constitutional error contending that his due process rights were violated when:
(5) the Assistant District Attorney engaged in prosecutorial misconduct by obtaining Houser's inmate telephone records from Westmoreland County Prison without a subpoena or court order;
(6) the Westmoreland County Prison improperly released Houser's inmate telephone records; and
(7) the trial court abused its discretion in allowing the Commonwealth to proceed with charges that had no legality.
Petition (ECF 5, pp. 9-18). Houser's claims will be addressed seriatim.
1. Ineffective Assistance of Counsel Claims
Ineffective assistance of counsel claims are grounded in rights guaranteed under the Sixth Amendment. The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court could find that counsel failed to provide effective assistance under the Sixth Amendment. This same standard has been incorporated by Pennsylvania courts as the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania court's resolution of an ineffective assistance claim, therefore, is presumed to apply clearly established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
Under the two-prong Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. 466 U.S. at 688-96. To satisfy the first prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. To meet the second prong of the Strickland test, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 694.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court adopted the two-part standard in Strickland to evaluate ineffective assistance of counsel claims-like Houser's-that arise out of the entry of a guilty plea. First, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 56. This is “nothing more than a restatement of the standard of attorney competence.” Id. at 58. So then, plea counsel's representation must fall “within the range of competence demanded of attorney's in criminal cases” if it is to provide a basis for a knowing and voluntary plea. See McMann v. Richardson, 397 U.S. 759, 771 (1970).
If counsel's performance is deficient, the court must then determine whether the error affected the outcome of the plea process. Hill, 474 U.S. at 59. Thus, Hill restates Strickland's prejudice prong a bit differently. In the context of a guilty plea, the petitioner needs to 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.” Id. at 59. Furthermore, where a petitioner pleaded guilty, he must show not only that he would not have done so and instead went on to trial, but also that “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
a. Grounds 1, 2, and 3
Houser's first three ineffective assistance of counsel claims relate to the process by which the Commonwealth obtained Houser's phone records from the Westmoreland County Prison. Specifically, he contends that his trial counsel failed to investigate if his inmate telephone records were released properly (Claim 1), failed to investigate whether a whether a rule or regulation applied to obtaining inmate telephone records (Claim 3), and failed to file pretrial motions, including a motion to suppress his inmate telephone records. (Claim 2). Houser raised these claims on PCRA appeal. However, the Superior Court did not address the claims on their merits finding that Houser's claim of ineffective assistance of plea counsel for unlawfully inducing him to plead guilty (which is raised as Ground 4 of the instant petition and is discussed below) was dispositive of the case. Further, the Superior Court found that Houser had waived these claims because he entered into a knowing, intelligent, and voluntary guilty plea. Superior Court Memo., 4/28/2020, p. 10 (ECF No. 22-11, p. 34). Because Houser's claims can more efficiently be disposed of on a de novo review of the merits, the Court will not address the more complex issue of whether the claims were waived.
The Supreme Court of the United States has explained that:
In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258 (1973)] and McMann v. Richardson [397 U.S. 759 (1970)]. The second, or “prejudice,” requirement, on the other hand focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant 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 v. Lockhart, 474 U.S. 52, 58-59 (1985).
Houser has made no such showing here, nor can he. Even assuming that Houser can meet the first prong of the Strickland test, he cannot show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial, because at the time of his plea he told the court that his decision to plead guilty was based upon considerations that were entirely independent of counsel's advice or performance. For example, when asked by the court why he was pleading guilty to the charges, Houser explained: “It's in my best interest.” N.T., 6/2/2015, p. 114; when asked by the court if there was a likelihood of conviction on one or both of the charges, if he had gone to trial, Houser replied, “Yes.” Id. at 115; and when asked by the court if he was satisfied with his counsel's representation, he again replied, “Yes.” Id.
Houser's contemporaneous, sworn oral statements at the time of his plea reflect that his decision to plead guilty was entirely unrelated to his defense counsel's conduct. Therefore, the undersigned concludes that Houser has not shown the required element of prejudice that is crucial to an ineffective assistance of counsel claim in this setting, and recommends that Houser's claims of trial counsel ineffectiveness in Claims 1, 2, and 3 of the petition be denied.
b. Ground 4
In Houser's fourth claim of ineffectiveness of counsel, he contends that he was induced to plead guilty by his counsel's misrepresenting, as part of his plea agreement, that he would receive concurrent sentences if he pleaded guilty. This claim was expressly considered and rejected by the Superior Court. As a result of the Superior Court denying the claim on its merits, this Court's review is governed by AEDPA's standard of review.
The Superior Court began its analysis by applying the Pennsylvania test for ineffective assistance of counsel derived from Commonwealth v. Pierce, 527 A.3d 973 (Pa. 1987):
To be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is no reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Steele, 961 A,2d 786, 796 (Pa. 2008).Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013), appeal denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy any one of the prongs requires rejection of petitioner's claim.” Commonwealth v. Williams, 141 A.3d 440, 454 (Pa. 2016) (citation omitted). [The law presumes that counsel was effective and the burden of proving that this presumption is false rests with the petitioner.” Commonwealth v. Cox, 983 A.3d 666, 678 (Pa. 2009) (citation omitted). “Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action.” Commonwealth v. Zuber, 353 A.2d 441, 445 (Pa. 1976) (citation, original quotation marks, and emphasis omitted).
“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.” Hickman, 799 A.3d at 141 (citation omitted)....
Superior Court Memo., 4/28/2020, pp. 5-6 (ECF No. 22-11, pp. 29-20) The “Pierce Standard” has been found to be materially identical to the Strickland test. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2008). See also Grant v. Wilson, 282 Fed.Appx. 138 (3d Cir. 2008). Thus, the Superior Court did not apply a rule of law that contradicts established Supreme Court precedent and therefore its decision was not contrary to clearly established Supreme Court precedent.