Opinion
No. 2:06-cv-683-PD.
May 8, 2006
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254 by a prisoner incarcerated at the State Correctional Institution in Dallas, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
Petitioner gave a statement to police admitting his role in the shooting death of victim Fabian Brown on November 19, 2000. Thereafter, the Commonwealth and the defense negotiated a plea agreement, wherein the Commonwealth would withdraw the first-degree murder charge and recommend a sentence of twenty-seven to fifty-four years incarceration. On December 4, 2001, petitioner pled guilty, before the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, to third-degree murder, carrying a firearm without a license, possession of an instrument of crime and reckless endangerment. In accordance with the negotiated plea deal, Judge Greenspan sentenced him to twenty to forty years on the murder conviction, with a consecutive sentence of seven to fourteen years on the other charges, for a total of twenty-seven to fifty-four years.
On June 26, 2002, petitioner filed a pro se petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., alleging ineffective assistance of plea counsel, Louis Savino, for failing to file a direct appeal. The Court appointed counsel, who filed a no-merit letter pursuant toCommonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and sought leave to withdraw. The PCRA court granted the request and dismissed the petition on November 18, 2002. Petitioner appealed to the Pennsylvania Superior Court alleging ineffectiveness of counsel for (1) failure to file a motion to modify the sentence; (2) failure to advise petitioner of the deportation consequences of his plea; and (3) failure to file a timely notice of appeal. The Superior Court vacated the lower court's order and remanded the case for an evidentiary hearing to determine whether petitioner had indeed directed counsel to file a direct appeal and whether counsel ineffectively failed to file that appeal.
The PCRA court then appointed new counsel and conducted an evidentiary hearing on February 23, 2004. During the hearing, plea counsel Mr. Savino testified that petitioner, through is girlfriend, had contacted him immediately after the sentencing and asked that he file a motion for reconsideration of his sentence or an appeal. Notwithstanding this request, he failed to do so and actually advised the Commonwealth that no appeal was ever requested. (N.T. 2/23/04, pp. 6-8). Following these confessions, both petitioner and his counsel emphasized that the only relief he sought was modification of his sentence, i.e., to make his sentence of seven to fourteen years run concurrently with his sentence of twenty to forty years. Accordingly, the PCRA court held a second hearing, on February 27, 2004, to determine whether there was any merit to this claim. The court denied the petition as baseless and petitioner appealed alleging that the PCRA court erred by denying relief where petitioner "was unaware that he was pleading guilty in exchange for a definite sentence due to ineffective assistance of counsel during the guilty plea and post-sentencing stages." Superior Court Opinion (2005), at p. 3. The Superior Court, on April 8, 2005 found that the negotiated guilty plea was validly entered and that petitioner's coordinate claim of ineffective assistance of counsel was meritless. The Pennsylvania Supreme Court subsequently denied petitioner's request for allowance of appeal.
Mr. Savino used the terms "motion for reconsideration" and "appeal" interchangeably during his testimony.
Petitioner filed the instant Petition for Writ of Habeas Corpus on February 15, 2006, setting forth two claims: (1) ineffective assistance of plea counsel for failure to file a motion for reconsideration of his sentence within the ten-day window permitted for doing so and (2) ineffective assistance of PCRA counsel for failure to conduct an investigation or interview plea counsel prior to filing his Finley letter.
II. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) 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).
The United States Supreme Court interpreted this statute and more clearly defined the two-part standard of review in Williams v. Taylor, 529 U.S. 362, 404-405, 120 S. Ct. 1495 (2000). Under the first prong of the review, a state court decision is "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States," (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. at 405. Pursuant to the second prong, a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply." Id. at 407-408.
III. DISCUSSION
A. Ineffective Assistance of Plea Counsel for Failure to File Either a Motion for Reconsideration or a Direct Appeal
Petitioner's first claim alleges that, after receiving his sentence, he timely directed plea counsel to file a motion for reconsideration of his sentence. Plea counsel, Louis Savino, conceded that although petitioner had definitely asked him to file either a motion for reconsideration of the sentence or an appeal, no such filing was made. The failure of counsel to take the requested actions, according to petitioner, constituted ineffective assistance of counsel.
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court set forth a two-prong test for establishing the merit of ineffective counsel claims. Id. at 687. Under the first prong, a claimant must demonstrate that trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The burden of proof is on the claimant to undermine judicial deference to attorney judgment; consequently, courts are to avoid "the distorting effects of hindsight" and should "reconstruct the circumstance of counsel's challenged conduct . . . to evaluate the conduct from counsel's perspective at the time." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 163-164 (1955)). It is well-established that counsel cannot be ineffective for failing to raise a meritless claim. Id. at 691; Holland v. Horn, 150 F. Supp. 2d 706, 730 (E.D. Pa. 2001). Under the second prong of Strickland, a claimant must establish that counsel's performance was so deficient as to prevent them from receiving a fair trial.Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694.
Subsequently, in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000), the Supreme Court refined the Strickland standard to apply to the more specific claim of an attorney's failure to file an appeal. Considering the issue of when an attorney has a constitutional obligation to consult with his client regarding the filing of an appeal, the Court established that the duty arose when there was reason to think either "(1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. Once a defendant has shown that counsel was ineffective by not consulting, he must establish prejudice by demonstrating a reasonable probability that, but for counsel's actions, he would have appealed. Id. at 484. The Court noted, however, that this analysis only applied where a defendant had not clearly conveyed his wishes regarding an appeal one way or another. "[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at 477. In such a case, the error would be presumed prejudicial, regardless of the merits of the defendant's potential claims, because it deprived the defendant of the entire appellate process. Id. at 484, 486.
In the case at bar, petitioner has seemingly met theFlores-Ortega standard. This was not a case where petitioner merely expressed interest in or inquired about the merit of an appeal. Rather, as averred by plea counsel, petitioner specifically directed the filing of either a motion for reconsideration or an appeal. These instructions were ignored. (N.T. 2/23/04, pp. 6-7, 9). Taking such representations as true, counsel's clear disregard of petitioner's wish to exercise his appellate rights gives rise to a presumption of prejudice. The combined effectiveness and prejudice requires, underFlores-Ortega, that this Court grant petitioner some relief.
The attending circumstances in this case, however, create an unusual scenario. In situations involving a Flores-Ortega violation, the standard remedy has been to grant the writ conditioned on the state courts' reinstatement of the defendant's appellate rights. See Lewis v. Johnson, 359 F.3d 646, 662 (3d Cir. 2004) (Flores-Ortega violation requires grant of habeas corpus conditioned on Commonwealth's reinstatement of right of first appeal); McIntyre v. Klem, 347 F. Supp.2d 206, 215 (E.D. Pa. 2004) (same). In this matter, however, such relief would be duplicative of the proceedings already conducted in the state courts. Specifically, on appeal from the initial denial of his PCRA petition, the Superior Court acknowledged that if counsel failed to file the requested direct appeal, petitioner's appellate rights had to be reinstated nunc pro tunc. See Superior Court Opinion 9/3/03, pp. 3-4. During the subsequent PCRA hearing, petitioner did, in fact, establish counsel's ineffectiveness. Petitioner and his appointed counsel then repeatedly emphasized that they did not seek to overturn or withdraw his guilty plea. (N.T. 2/23/04, pp. 9-12). Instead, petitioner wanted only to challenge the discretionary aspects of his sentence. More specifically, in the following exchange between the Court and the petitioner, he set forth the precise the grounds he wished to raise in his requested motion for reconsideration:
THE COURT: What is it that you are seeking? You want modification of your sentence but not to withdraw your plea; is that accurate?
THE DEFENDANT: Yes.
THE COURT: The basis of that would be?
THE DEFENDANT: The basis, first, I would like to let you know that I am trying to take the opportunity, because you told me I was allowed to reconsider the sentence. If you never said this, I would never have tried to reconsider the sentence. I am trying to take an angle that I was given, that's all.
MS. SEIDNER: It was a negotiated plea, Your Honor.
THE COURT: I understand that. I actually have the transcript of the negotiated plea. He was apprised of his right to file a post-sentence motion seeking to modify the sentence or withdraw the plea and the basis, again, for modifying the sentence would be, a change of sentence would be? You don't like the length or —
THE DEFENDANT: I understand what you are saying. First, one of my bases is that I feel as though my time should be concurrent. At the time of entering the plea, I was illiterate to the procedures. I was illiterate to the law in many aspects. I understand it is by the discretion of the Court that you can run my charges concurrent or consecutive.
I feel by the mercy of the Court, my charges be run concurrent which would leave me with a flat 20 to 40.
* * *
MS. RODRIGUEZ: Is that your only issue, Mr. Rice, that you wanted a reconsideration of sentence? Were there any other issues that you wanted me to raise?
THE DEFENDANT: Basically, on a layman's terms, that was it.
(N.T. 2/23/04, pp. 10-13).
As the PCRA court acknowledged counsel's failure, it then conducted a second hearing to consider the merits of his claim that his sentences should be modified to run concurrently rather than consecutively. During that second hearing, petitioner conceded that he only wanted to file a motion to reconsider because the judge told him that he could do so as part of the guilty plea colloquy. (N.T. 2/27/04, p. 13). Moreover, he admitted that he had negotiated a term of 27 to 54 years and knew the court had the sole discretion as to whether to run his sentences concurrently or consecutively. He hoped, however, that the judge would be lenient and give him only 20 to 40 years. (N.T. 2/27/04, pp. 18-19). In light of this testimony, the PCRA court denied petitioner's motion for reconsideration, deeming it to be a "clear case of change of heart, hindsight, second-guessing, whatever, disappointment in some way subsequent to the time, although he was thoroughly satisfied . . . at the time of the event when he received the absolute benefit of his bargain, which was the 27 to 54 years. (N.T. 2/27/04, p. 31). On new appeal, the Superior Court affirmed this ruling.
In light of these proceedings, the Court finds no basis on which to grant habeas relief. As noted above, our sole available remedy is to grant the writ conditioned upon reinstatement of the petitioner's state appellate rights. In this matter, however, the state court effectively granted anew his right of appeal through two PCRA evidentiary hearings and full appellate review. As a result, petitioner had thorough state court consideration of the precise claim he would have brought in his intended motion for reconsideration. The state courts found absolutely no merit to his sentencing claim. Accordingly, remand for reinstatement of his appellate rights would serve no purpose other than to duplicate proceedings which already occurred.
To the extent petitioner seeks to withdraw his guilty plea based on his wish to challenge not the voluntariness of his plea, but rather the length of his sentence, his claim is not cognizab le. The law is well-established that a counseled and voluntary guilty plea may not be collaterally attacked in a habeas corpus action. Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546-2547 (1984). "Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary."Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991) (quotingUnited States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 762 (1989).
Nor would this court have any authority to review the state's determination regarding the merits of petitioner's motion for reconsideration of his sentence. See Jones v. Superintendent of Rahway State Prison. 725 F.2d 40, 42-43 (3d Cir. 1984) (a federal court has no power to review a state-imposed sentence in a habeas corpus proceeding unless it violates a specific constitutional protection); Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) ("[a]s a general rule, federal courts will not review state sentencing determinations that fall within statutory limits."); Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000) (challenges to a state sentencing decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law).
B. Voluntariness of Guilty Plea
In an alternative interpretation of the first claim, petitioner argues that his guilty plea was not voluntary since he did not understand either the nature of the sentence to which he would be subject or that he would not be able to modify his sentence to have his time run concurrently. This claim, however, claim is likewise meritless.
The determination of whether a guilty plea is "voluntary" for constitutional purposes is a question of federal law, but the reviewing federal court must grant a presumption of correctness to the state court's findings of historical facts surrounding the actual plea. Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991) (citing Marshall v. Lonberger, 459 U.S. 422, 431, 103 S. Ct. 843, 849 (1983)). The test for 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." North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). A plea may be deemed involuntary either because the accused does not understand the nature of the constitutional protections he is waiving or because he has an incomplete understanding of the charges lodged against him, such that his plea is not an intelligent admission of guilt.Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S. Ct. 2253, 2258 (1976). The United States Supreme Court has emphasized that the petitioner bears a heavy burden in making such a challenge to his guilty plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977). "[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Id. Notably, where petitioner challenges the voluntary nature of guilty plea and was represented by counsel at that guilty plea, "the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449 (1970)).
The Superior Court considered petitioner's voluntariness claim on direct appeal of his PCRA petition, following the initial remand. Following a review of the record, it found that the requisites for a valid plea were satisfied in the written and oral plea colloquies, reasoning that:
At the guilty plea hearing, the Commonwealth placed the terms of the negotiations on the record. The Commonwealth explained that Appellant would enter a plea of guilty to third degree murder, firearms not to be carried without a licence, PIC and REAP in exchange for a sentence of 27-54 years' imprisonment. As part of the agreement, the Commonwealth withdrew the first degree murder charge. Appellant indicated that he understood the plea proceedings, that he was entering the pleas of his own free will, and that no threats or promises had been made to him other than the negotiations placed on the record. Moreover, Appellant testified that he was educated through tenth grade and that he could read and write English. Appellant also testified that he was not suffering from any mental illness or the effects of any drug or alcohol. Appellant stated that he had reviewed the written plea colloquy with his counsel, that he understood the rights he was giving up by virtue of the plea, and that he was satisfied with his plea counsel. Further, Appellant indicated to the trial court that he understood his rights and no questions for the court. Appellant even thanked the trial court for accepting the plea negotiations. Thereafter, the trial court sentenced Appellant to 27 to 54 years' imprisonment in accordance with the negotiated plea.
Superior Court Opinion (2005), at pp. 7-8. Upon finding that the guilty plea was validly entered, the Superior Court concluded that counsel could not be ineffective for failing to file a motion for reconsideration raising a meritless request for modification of the negotiated sentence. Id. at p. 8.
Deferring to the state court's factual findings, pursuant to 28 U.S.C. § 2254(e)(1), this Court deems the Superior Court's ruling on the voluntariness of the plea to be well in accord with federal law. At the guilty plea hearing, petitioner affirmatively stated that he reviewed with his lawyer, understood and executed a written colloquy form. Further, he actively participated in the oral colloquy revealing that he understood the plea proceedings, that the plea was voluntary, that he was under the coercion of no threats or promises other than the negotiations, that he was literate, and that he was not mentally ill or under the effects of any illicit substances. (N.T. 12/4/01, p. 5). Finally, petitioner repeatedly conceded, at the subsequent evidentiary hearings, that he understood that he was pleading guilty to third degree murder and a negotiated sentence of 27 to 54 years. Indeed, petitioner acknowledged that he was sentenced accordingly.
On direct examination by PCRA counsel, the following exchange occurred:
Q. Thinking back to the time when you entered your guilty plea, what was your understanding of what your sentence would be?
A. My understanding, when I entered this plea, was that it would be in exchange for third degree, which was greatly appreciated. also, that they would seek no more than 27 to 54. I was under the impression that whatever happened to the no less than, there was never a no less than or no more than. I understood the no more than part.
(N.T. 2.27.04, p. 3). Thereafter, on cross-examination, petitioner repeated that he understood that, in accepting the plea, he had negotiated a sentence of 27 to 54 years:
Q. Mr. Rice, you were concerned, one of the reasons that you were grateful for the plea was because you were given a plea to murder of the third degree, and not murder of the first degree, so there was no possibility of facing the death penalty; is that true?
A. Yes.
Q. The terms of the plea that were discussed with you were 27 to 54 years, and when the Judge accepted those negotiations, that was your sentence, did you understand that?
A. Yes, I understand.
Q. So, the fact that you would have liked your sentences to run concurrent, that is not what you were agreeing to. You knew that, Mr. Rice?
* * *
A. I did understand what I was pleading to. I understood, like I said, I understood this to mean that they would seek no more than 27 to 54.
Q. Le me ask you this, if you thought that the plea was going to be no more than 27 to 54 years, then that was within the range that you got sentenced; is that right?
A. Yes.
(N.T. 2/27/04, pp. 18-19).
Having so expressly conceded his understanding of the crimes charged and the maximum sentence which he faced, petitioner is now hard-pressed to argue that his guilty plea was involuntary due to his trial counsel's alleged misrepresentation that he could file a motion for reconsideration to have the sentences for this crime run concurrently rather than consecutively. "The plea colloquy is designed to uncover hidden promises of representations as to the consequences of a guilty plea." Zilich v. Reid, 36 F.3d 317, 320 (1999). To accept petitioner's argument would require the Court to disregard outright all the statements made in open court, on-the-record and in direct response to questions about his understanding of the consequences of his plea. The United States Constitution guarantees a fair trial — it does not permit those who are unhappy with their sentences to change their guilty plea in hopes of a reduced sentence. Based on this record before us, we cannot disagree with the state court's finding that petitioner's plea was knowing and voluntary.
C. Ineffective assistance of PCRA counsel for Failure to Conduct an Investigation or Interview Plea Counsel Prior to Filing His Finley Letter
In his final claim, petitioner alleges that initial PCRA counsel, Ramy Djerassi, was ineffective for failing to investigate his claim before filing a no-merit letter. This argument stands on tenuous grounds. First, petitioner does not have a constitutional right to appointed counsel for collateral review. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990 (1987). "[A] claim of ineffective assistance of PCRA counsel is not cognizable in a federal habeas corpus petition because the right to effective assistance of PCRA counsel exists pursuant to state law, and is not mandated by the Constitution or laws or treaties of the United States." McCabe v. Commonwealth of Pennsylvania, 419 F. Supp.2d 692, 699 (E.D. Pa. 2006) (quotingHolman v. Gillis, 58 F. Supp.2d 587, 597 (E.D. Pa. 1999)). As such, this Court has no jurisdiction to review this claim.
Moreover, even if we could consider this issue, petitioner fails to meet his burden of proving prejudice. On appeal from the initial dismissal of his PCRA petition, the Pennsylvania Superior Court remanded the matter back for appointment of new counsel and a full evidentiary hearing. Thus, any prejudice occasioned by the actions of initial counsel was undone by the Superior Court's remand order.
Therefore, we make the following:
RECOMMENDATION
AND NOW, this 8th day of May, 2006, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.