Opinion
Civil Action No. 2:18-cv-146
08-14-2020
TERRENCE ROSS, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, et al., Respondents.
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Pending before the Court is the Consolidated Amended Petition for a Writ of Habeas Corpus (ECF No. 22), as amended (ECF No. 30), filed by state prisoner Terrence Ross ("Petitioner") pursuant to 28 U.S.C. § 2254. It is respectfully recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability. II. REPORT
Respondents attached as exhibits to their Answer (ECF No. 32) the relevant state-court filings and decisions. They also submitted to the Court hard copies of the transcripts from Petitioner's state-court proceedings, including the December 15, 2014 plea and sentencing hearing and the suppression hearing held on November 12, 2014 and November 17, 2014.
A. Introduction
Petitioner is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County on December 15, 2014. He contends that his defense attorney, Giuseppe Rosselli, Esq., ("trial counsel"), provided him with ineffective assistance in violation of his Sixth Amendment rights.
Petitioner raises four grounds for relief. In Claims 1 and 2, Petitioner brings overlapping and related allegations premised upon his contention that his guilty plea was not intelligently entered. He claims that trial counsel was ineffective for: (1) failing to object to the judge's oral colloquy, which he contends was deficient because she did not recite the elements of the crimes to which he was pleading guilty, thereby failing to have the judge correct the alleged error or at least to preserve the issue for appeal; (2) allegedly failing to explain to Petitioner the nature of the charges; and (3) failing to file a post-sentence motion to withdraw Petitioner's guilty plea on the grounds that it was not intelligently entered. ECF No. 22 at 5-6.
In Claim 3, Petitioner contends that trial counsel was ineffective for allegedly failing to advise him that the Commonwealth initially had considered other individuals as suspects. ECF No. 22 at 6. In Claim 4, Petitioner contends that trial counsel was ineffective for allegedly advising him that he would be sentenced to 20 to 40 months' imprisonment instead of 20 to 40 years' imprisonment, and then for failing to file a post-sentence motion to withdraw his guilty plea on the grounds that Petitioner misunderstood the term of the sentence he would likely receive. ECF No. 30 at 1-3.
As explained below, Petitioner raised Claims 1 and 2 in state court in his first, and only timely-filed, petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541. The Court should deny those claims because the Superior Court of Pennsylvania's adjudication of them withstands the applicable standard of review, which was enacted by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and is codified at 28 U.S.C. § 2254(d). As for Claims 3 and 4, they are procedurally defaulted and the Court can deny them for that reason, but it also can deny them because they clearly have no merit even under a de novo review.
B. Relevant Background
In 2013, Petitioner was arrested and charged with numerous offenses related to a series of knifepoint robberies committed in August 2013 in and around Pittsburgh's South Side neighborhood. In his criminal case at docket number CP-02-CR-15085-2013, the Commonwealth charged him with two counts of robbery, one count of simple assault, and one count of criminal mischief. At docket number CP-02-CR-15091-2013, it charged him with three counts of robbery, three counts of aggravated assault, one count of kidnapping, one count of access device fraud, and one count of simple assault.
Petitioner and the Commonwealth reached a negotiated plea agreement for both cases. Under its terms, he would plead guilty to five counts of robbery, two counts of aggravated assault, one count of access device fraud, and two counts of simple assault and the Commonwealth would withdraw two counts, including the kidnapping count. The parties agreed upon an aggregate sentence of 20 to 40 years' imprisonment (10 to 20 years at count 1 (robbery) of each information, to run consecutively).
Petitioner's plea and sentencing hearing was held on December 15, 2014. On that date, Petitioner executed a written colloquy entitled Guilty Plea Explanation of Defendant's Rights. Resp's Ex. 6, ECF No. 32-1 at 72-82. By executing this document, Petitioner affirmed, among other things, that he had discussed with trial counsel "the elements of each charged offense," "the factual basis of each charged offense," and "how the facts in [his] case prove the elements of each charged offense[.]" Id. at 73.
After Petitioner executed the written colloquy, his hearing began and he informed the judge that he was satisfied with trial counsel's representation. Hr'g Tr., 12/15/14, at 6. He affirmed during the judge's oral colloquy that he had answered the questions contained in the written colloquy honestly and that he read and understood that document in its entirety. Id. at 5-6. The judge asked Petitioner whether trial counsel had explained to him "the nature of the charges you're facing and the elements the Commonwealth would have to prove if you had chosen to have a trial in these cases?" Petitioner answered "yes." Id. at 6-7.
The judge listed all the offenses to which Petitioner was pleading guilty, their grading, and the maximum penalty that she could impose for each offense. Id. at 7-9. She advised him that, if he wanted, the prosecutor would summarize the facts of the Commonwealth's cases against him. Id. at 9. Petitioner replied that he waived a summary of the evidence and he affirmed that he previously reviewed with trial counsel the affidavit of probable cause, the police reports, and all discovery. Id. at 10-11. Petitioner acknowledged that, if he had chosen to go to trial, the Commonwealth would have been able to place before a jury enough evidence that, if credited, would convince it beyond a reasonable doubt that he was guilty. Id. at 10-11. He affirmed that he was entering his plea because he was, in fact, guilty. Id. at 11.
At the conclusion of the hearing, the judge accepted the parties agreed-upon sentence and imposed an aggregate term of imprisonment of 20 to 40 years' imprisonment. Id. at 16-17. She informed Petitioner that he had the right, within ten days, to file a motion to challenge the validity of his plea or modify his sentence, and that he also had the right to file a direct appeal to the Superior Court within 30 days. Id. at 17. Petitioner did not file any post-sentence motion or a direct appeal.
Petitioner filed his first PCRA petition approximately three months later, in March 2015. Resp's Ex. 9, ECF No. 32-1 at 97-106. Pennsylvania law provides that a petitioner is entitled to the appointment of counsel in a first PCRA proceeding, and the judge (now the PCRA court) appointed the Public Defender's Office to represent him. Christine M. Selden, Esq. ("PCRA counsel") entered her appearance on Petitioner's behalf and filed an amended PCRA petition. Resp's Ex. 10, ECF No. 32-1 at 107-23. The amended PCRA petition raised the same allegations of ineffective assistance of trial counsel that Petitioner now brings before this Court in Claims 1 and 2.
The PCRA court determined that it did not require an evidentiary hearing to rule upon Petitioner's claims and it denied them on the merits. Resp's Exs. 12, 13, ECF No. 32-1 at 138-39. Through PCRA counsel, Petitioner filed an appeal with the Superior Court. The Superior Court agreed that Petitioner's claims had no merit and affirmed the PCRA court's decision. Resp's Ex. 19, ECF No. 32-1 at 208-14, Commonwealth v. Ross, No. 885 WDA 2016, slip op. (Pa. Super. Ct. May 18, 2017) ("Ross I").
In Petitioner's second PCRA petition (Resp's Ex. 24, ECF No. 32-1 at 248-71), which he filed and litigated pro se, Petitioner alleged, in relevant part, that he did not know when he entered his plea that the Commonwealth had initially suspected other individuals of committing at least some of the crimes in his cases. Petitioner asserted that he first learned about this "newly-discovered evidence" in 2015 when trial counsel provided him with his files during the litigation of the first PCRA proceeding. Petitioner claimed that PCRA counsel was ineffective for not raising claims in the first PCRA proceeding that were premised upon this allegedly "newly-discovered evidence."
The PCRA court dismissed Petitioner's second PCRA petition as untimely under the applicable one-year statute of limitations, which is codified at 42 PA. CONS. STAT. § 9545(b). Resp's Ex. 29, ECF No. 32-1 at 289. The Superior Court affirmed. Resp's Ex. 35, ECF No. 32-1 at 352-57, Commonwealth v. Ross, No. 375 WDA 2018, slip op. (Pa. Super. Ct. Nov. 13, 2018) ("Ross II").
Petitioner initiated this federal habeas case when his second PCRA proceeding was pending in state court. This Court stayed this case until Petitioner completed his state-court litigation. ECF No. 14. After the Superior Court issued Ross II, this Court lifted the stay and Petitioner filed the Consolidated Amended Petition for a Writ of Habeas Corpus (ECF No. 22) in which he raised Claims 1, 2 and 3. The Court subsequently granted Petitioner leave to file an amendment (ECF No. 30) in which he raised Claim 4.
In their Answer (ECF No. 32), Respondents contend that the Court should deny Claims 1 and 2 because Petitioner has not met his burden of demonstrating that he is entitled to habeas relief under AEDPA's standard of review. They contend that the Court should deny Claims 3 and 4 because they are procedurally defaulted or, alternatively, because they have no merit. In his Reply (ECF No. 37), Petitioner asserts that he is entitled to habeas relief and that the default of any claim of trial counsel's ineffectiveness should be excused in accordance with the Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1 (2012) because PCRA counsel should have raised it in the first PCRA proceeding.
C. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, which is 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). Errors of state law are not cognizable in a federal habeas action. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Petitioner has the burden to prove that he is entitled to the writ. Id.; see, e.g., Vickers v. Sup't 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 upon him by AEDPA's standard of review, which is discussed below and which applies to the two claims that he did not procedurally default (Claims 1 and 2)), but, ultimately, Petitioner cannot receive federal habeas relief unless he demonstrates 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.
D. Standard of Review
In 1996, Congress made significant amendments to the federal habeas statutes with the enactment of AEDPA. Among other things, AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
A finding of fact made by a state court always has been afforded considerable deference in a federal habeas proceeding. 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). It applies "to any claim that was adjudicated on the merits" by the state court, and it prohibits a federal habeas court from granting relief unless the petitioner established that the state court's "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, or28 U.S.C. § 2254(d).
(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.
For the purposes of § 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when the state court (here, the Superior 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). Because the Superior Court adjudicated Claims 1 and 2 on the merits in Ross I, this Court must apply § 2254(d)'s standard of review when it evaluates them.
When applying § 2254(d), the federal habeas court considers the "last reasoned decision" of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
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 ascertain 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). It 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) (emphasis added) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
Once the "clearly established Federal law, as determined by the Supreme Court of the United States" is ascertained, this Court must determine whether the Superior 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, as determined by the Supreme Court of the United States" § 2254(d)(1), "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," Williams, 529 U.S. 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. Williams, 529 U.S. at 406. Therefore, the issue in most federal habeas cases is whether the adjudication by the state court survives review under § 2254(d)(1)'s "unreasonable application" clause.
"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, Petitioner must do more than convince this Court that the Superior 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 Court of Appeals). This means that Petitioner must demonstrate 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." Richter, 562 U.S. at 103 (emphasis added). 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 Rice v. Collins, 546 U.S. 333, 342 (2006) (reversing court of appeals's decision because "[t]he panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus."). Thus, "if '[r]easonable minds reviewing the record might disagree' about the finding in question, 'on habeas review that does not suffice to supersede'" the state court's adjudication. Wood, 558 U.S at 301 (quoting Collins, 546 U.S. at 341-42).
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 v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). 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.
E. Discussion
The Supreme Court has strictly limited the circumstances under which a guilty plea may be attacked on collateral review, noting that "[i]t is well settled that a voluntary and intelligent plea of guilt made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Bousley v. United States, 523 U.S. 614, 621 (1998) "Indeed, 'the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.'" Id. (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)). In an attempt to get around the limitation his guilty plea has on his availability to receive relief on collateral review, Petitioner asserts that trial counsel provided him with ineffective assistance in violation of the Sixth Amendment.
Claims of ineffective assistance are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 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 at least 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[.]" Titlow, 571 U.S. at 24.
Under Strickland, it is 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). Counsel cannot be deemed ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup't Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018).
Strickland also requires that Petitioner demonstrate that he was prejudiced by trial counsel's alleged 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 can show prejudice by demonstrating 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, 59 (1984).
The Supreme Court in Strickland noted that although it had discussed the performance component of an effectiveness claim prior to the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. If it is more efficient to dispose of an ineffectiveness claim on the ground that the petitioner failed to meet his burden of showing prejudice, a court need address only that prong of Strickland. Id.
1. The Superior Court's Adjudication of Claims 1 and 2 Withstands Review Under § 2254(d)
"[A] plea does not qualify as 'intelligent' unless a criminal defendant first receives 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Bousley, 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)). Thus, a plea is invalid if a defendant enters it without being informed of the elements of the crime at some point. Bradshaw v. Stumpf, 545 U.S. 175, 1983 (2005) (citing Henderson v. Morgan, 426 U.S. 637, 646 (1976)). To ensure that a defendant's guilty plea comports with the requirements of due process, Pennsylvania law requires that pleas shall be taken in open court and that, before accepting a guilty plea, it is affirmatively demonstrated that the defendant understands the nature of the charges to which he is pleading guilty. Pa. R. Crim. P. 590(A) and Comment thereto, which cites Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977) and Commonwealth v. Dilbeck, 353 A.2d 824 (Pa. 1976)); see also 26A STANDARD PENNSYLVANIA PRACTICE §§ 134:144, 134:150, 134:152 Westlaw (database updated June 2020).
In Claims 1 and 2, Petitioner asserts that his plea was not intelligently given because trial counsel failed to object to the judge's allegedly deficient colloquy or explain the nature of the charges to Petitioner. He also faults trial counsel for failing to file a post-sentence motion to withdraw his guilty plea on the ground that it was not intelligently entered.
In denying Claims 1 and 2, the Superior Court rejected Petitioner's contention that both federal due process law and state law required the judge to recite the elements of the crimes during the oral colloquy. Resp's Ex. 19, No. 32-1 at 208-14, Ross I, No. 885 WDA 2016, slip op. at 5-6. The Superior Court explained that the law permits "defense counsel or the attorney for the Commonwealth" to conduct "part or all of the examination of the defendant," and does not "preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings." Id. at 5 (quoting Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super. Ct. 2005), which quoted the Comment to Criminal Rule 590). "[W]hether a defendant is aware of the nature of the offenses[,]" the Superior Court further explained, "depends on the totality of the circumstances, and a plea will not be invalidated premised solely on the pleas court's failure to outline the elements of the crimes at the oral colloquy." Id. (quoting Morrison, 878 A.2d at 108).
The Superior Court held that the totality of the circumstances established that Petitioner's guilty plea was intelligently entered. Id. at 6. It rejected his factual assertion that trial counsel did not explain the elements of the crimes to him, and it pointed to additional evidence in the record that demonstrated Petitioner was advised of the elements of the crimes before he entered his plea:
[Petitioner] concedes that he executed a written colloquy wherein he admitted that trial counsel explained all of the elements of each offense. N.T., 12/15/14, at 5-7. [Petitioner] is bound by the affirmations he made under oath at the guilty plea hearing. See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) ("Appellant is bound by these statements, which he made in open court while under oath, and he may not now assert grounds for withdrawing the plea which contradict the statements."). Moreover, the certified record contains the criminal informations filed against [Petitioner] by the Commonwealth. Each information sets forth the various offenses charged with all the criminal elements defined. [Petitioner] does not dispute that he received this information prior to entering his plea. If [Petitioner] did not understand the elements of the offenses to which he was pleading, he had an opportunity to make inquiry at the plea hearing, but did not. Now, however, he simply cannot assert that he did not know the elements of the crimes as a reason to withdraw his plea. Thus, there is no merit to [Petitioner's] claim that trial counsel provided ineffective assistance in representing [Petitioner] at his plea hearing.Id. at 6-7.
As for Petitioner's related claim that plea counsel should have filed a motion to withdraw his guilty plea, in order to succeed on such a motion Petitioner would have had to have shown a "manifest injustice," which can be established if the plea was not tendered voluntarily or intelligently. 16A PENNSYLVANIA CRIMINAL PRACTICE § 25:6, Westlaw (database updated Sept. 2019); Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. Ct. 2009). There was no basis for trial counsel to file a motion to withdraw the guilty plea, the Superior Court implicitly held, since the totality of the circumstances demonstrated that Petitioner was aware of the nature of the charges to which he entered his plea. Thus, such a motion would have had no merit and trial counsel was not ineffective for failing to file it. Resp's Ex. 19, ECF No. 32-1 at 208-14, Ross I, No. 885 WDA 2016, slip op. at 2-6.
The Superior Court's adjudication of Claims 1 and 2 withstands review under § 2254(d). It applied the Strickland standard when it evaluated Petitioner's claims that trial counsel was ineffective. Id. Therefore, its adjudication was not "contrary to" Strickland. See, e.g., Williams, 529 U.S. at 406. Additionally, as Respondents point out, the Supreme Court has never held that due process requires that the judge be the one to "explain the elements of each charge to the defendant on the record." Bradshaw, 545 U.S. at 183. Rather, the Supreme Court has held "that the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime where explained to the defendant by his own, competent counsel." Id. Accordingly, the Superior Court's rejection of one of the assertions underlying Petitioner's ineffectiveness claims—that his due process rights were violated because the judge did not recite during the oral colloquy the elements of the crimes to which he was pleading guilty—was not "contrary to" the Supreme Court's due process jurisprudence.
Pennsylvania courts typically articulate Strickland's standard in three parts, while federal courts set it out in two. The legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts. See, e.g. Commonwealth. v. Mitchell, 105 A.3d 1257, 1266 (Pa. 2014) ("this Court has divided [Strickland's] performance component into sub-parts dealing with arguable merit and reasonable strategy. Appellant must, therefore, show that: the underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission; and Appellant suffered prejudice as a result."); Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-18 (Pa. 2012) ("In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland[.]").
The next consideration for this Court is whether Petitioner has demonstrated that the Superior Court's adjudication of Claims 1 and 2 was an "unreasonable application" of Strickland or any other "clearly established" federal law as determined by the Supreme Court. As set forth above, to satisfy his burden under § 2254(d)(1)'s "unreasonable application" clause, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. See, e.g., Dennis, 834 F.3d at 281. He must demonstrate 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." Richter, 562 U.S. at 103.
Petitioner has not met this difficult burden. In support of his contention that he is entitled to relief on Claims 1 and 2, he relies upon the Court of Appeals' decision in Henderson v. Corbett, 155 F.3d 159 (3d Cir. 1998). In Henderson, a state prisoner who had waived his right to counsel in his criminal case by signing two simple forms without an oral colloquy argued in his subsequent federal habeas case that his waiver of his right to counsel was invalid. The first form signed by the petitioner was a generic waiver that stated the charges, that the petitioner had the right to have a lawyer appointed free of charge, that the petitioner was aware of the "permissible range of sentences," and that the petitioner "knowingly, voluntarily and intelligently waive[d]" his right to counsel. Henderson, 155 F.3d at 162-63. The second form signed by the petitioner stated "almost exclusively, 'I wish to proceed on my own behalf[.]'" Id. at 166. The Court of Appeals held that "these documents alone" were insufficient "to prove an intentional relinquishment or abandonment of a known right or privilege." Id. (internal quotation marks omitted). It further held that judges must conduct a verbal colloquy before accepting a defendant's waiver of the right to counsel. Id. Petitioner contends that, although Henderson dealt with the petitioner's waive of his right to counsel, its reasoning extends to this case and his waiver of his right to a trial.
Petitioner's reliance upon Henderson is misplaced. Henderson is a pre-AEDPA case and, therefore, when the Court of Appeals ruled upon the petitioner's claims it did not apply § 2254(d)'s standard of review. Accordingly, Henderson is not relevant to the issue here, which is whether the Superior Court's adjudication of Petitioner's claims withstands that standard of review. Moreover, this Court cannot look to Henderson when it applies that standard of review in order to determine whether the Superior Court's adjudication was "contrary to" or and "an unreasonable application" of federal law. That is because the Supreme Court "has repeatedly emphasized" that, when a federal habeas court applies AEDPA's standard of review, "circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.'" Glebe v. Frost, 574 U.S. 21, 24 (2014) (per curiam) (emphasis added) (quoting § 2254(d)(1) and citing Lopez v. Smith, 574 U.S. 1 (2014) (per curiam)). See, e.g. Renico v. Lett, 559 U.S. 766, 779 (2010) (state court's failure to apply decision by federal circuit court "cannot independently authorize habeas relief under AEDPA."). Importantly, "[c]ircuit precedent cannot 'refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.'" Lopez, 574 U.S. at 2 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)).
Petitioner also directs this Court to decisions by Pennsylvania state courts that he maintains establish that the judge was required to recite the elements of the crimes during the oral colloquy. The Superior Court rejected his argument that the judge's oral colloquy was deficient under state law, and this Court has no authority to reevaluate its decision in that regard. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 'reexamine state court determinations on state-law questions.'") (quoting Estelle, 502 U.S. at 67-68).
The only remaining question in evaluating Claims 1 and 2 is whether the Superior Court's adjudication "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). It was not. The Superior Court rejected Petitioner's factual assertion that plea counsel did not explain to him the nature of the charges because that assertion contradicted both the affirmations Petitioner made in executing the written colloquy and the statements he gave under oath during the oral colloquy. The Superior Court had before it the requisite evidence necessary for it to make that factual determination and its adjudication withstands review under § 2254(d)(2).
In conclusion, Petitioner has failed to demonstrate that Superior Court's adjudication was "contrary to" or "an unreasonable application of of Strickland or any other federal law as determined by the Supreme Court, or that it "was based on an unreasonable determination of the facts." Therefore, the Court should deny Claims 1 and 2.
2. Claims 3 and 4 Are Procedurally Defaulted and Also Have No Merit
Respondents assert that Claims 3 and 4 are procedurally defaulted because Petitioner did not raise them in his first, and only timely-filed, PCRA proceeding. The doctrine of procedural default is "grounded in concerns of comity and federalism," Coleman v. Thompson, 501 U.S. 722, 730 (1991), and, to succinctly summarize it, it provides that a state prisoner defaults a federal habeas claim if he: (a) failed to present it to the state court and the state court would now decline to address it on the merits because state procedural rules bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason the state court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
Petitioner does not dispute that Claims 3 and 4 are procedurally defaulted. He contends that the Court should excuse his default and proceed to review those claims de novo because PCRA counsel was ineffective for failing to litigate them in his first PCRA proceeding.
Petitioner did not have a federal constitutional right to counsel during his first PCRA proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Therefore, he cannot receive habeas relief on a stand-alone claim that his PCRA counsel was ineffective, a fact codified by statute at 28 U.S.C. § 2254(i), which expressly provides that "[t]he ineffectiveness of counsel during Federal or State collateral post-conviction proceedings shall not be ground for relief in a proceeding arising under section 2254." See also Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings.... Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.") Accordingly, to the extent that Petitioner is raising any stand-alone claims of PCRA counsel's ineffective assistance, those claims must be dismissed because they are not cognizable in a habeas case filed under 28 U.S.C. § 2254.
A petitioner can avoid the default of a claim if he demonstrates "cause for the default and actual prejudice as a result of the alleged violation of federal law[.]" Coleman, 501 U.S. at 750. "'Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[.]" Id. at 753 (emphasis in original). The general rule is that, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely upon PCRA counsel's ineffectiveness to overcome the default of a federal habeas claim. See, e.g., Coleman, 501 U.S. at 752-54; Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court announced a limited, but significant, exception to this rule. Under Martinez, a Pennsylvania prisoner may argue that his PCRA counsel "caused" the default of a claim that trial counsel was ineffective. 566 U.S. at 9; Workman v. Sup't Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019). The holding in Martinez is limited to defaulted ineffective-assistance-of-trial-counsel claims. See, e.g., Davila, 137 S. Ct. at 2062-70. It does not apply to any other type of claim. Id.
Under Martinez, in order to avoid the default of an ineffective-assistance-of-trial-counsel claim, Petitioner must establish two things: (1) the ineffective-assistance-of-trial-counsel claim is "substantial"; and (2) PCRA counsel was ineffective within the meaning of Strickland for failing to raise the claim. Martinez, 566 U.S. at 14; Workman, 915 F.3d at 937. Respondents are correct that Petitioner has not established either factor for Claim 3 and Claim 4 and, therefore, the Court could deny both claims as procedurally defaulted. However, it also is clear that neither claim has merit and the Court could simply review them de novo and deny them on that basis. Lambrex v. Singletary, 520 U.S. 518, 525 (1997) (the court may avoid the more complex issue of procedural default and evaluate the claim on the merits if it is more efficient to do so).
The Court of Appeals has explained that an ineffective-assistance-of-trial-counsel claim is "substantial" if it has "some merit." Workman, 915 F.3d at 938. The evaluation of whether a claim has "some merit" is the same one that a federal court undertakes when it considers whether to grant a certificate of appealability. Id. Thus, the "some merit" standard is satisfied if Petitioner shows "that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); Workman, 915 F.3d a 938 (a petitioner "must 'show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should be resolved in a different manner of that the issues presented were adequate to deserve encouragement to proceed further.'") (quoting Martinez, 566 U.S. at 14, which cited Miller-El v. Cockrell, 537 U.S. 322 (2003)).
In Claim 3, Petitioner asserts that trial counsel was ineffective for failing to inform him that the Commonwealth had identified other suspect(s), ECF No. 22 at 66. He does not identify the other suspect(s). In their Answer, Respondents state that Petitioner must be referring to Darrell Washington, who was mentioned in several police reports that were turned over to the defense during discovery in Petitioner's criminal case. See Resp's Ex. 4, ECF No. 32-1 at 46-50. When Petitioner committed his crimes, he was being driven around by an acquaintance, Tiffany Dickson, in her 1999 Green Chevy Prizm. Washington allegedly had stolen that vehicle, and that is why the police initially considered him to be a suspect in some of the separate robberies at issue in this case. The police revaluated their suspicion of Washington after (1) victims and/or witnesses who were presented with his picture in photo lineups could not confidently identify him as the person who had committed the knifepoint robberies, and (2) Dickson revealed that it was Petitioner who had committed the knifepoint robberies. Dickson's account was corroborated by the victims and/or witnesses who identified Petitioner as the perpetrator. See Resp's Ex. 4, ECF No. 32-1 at 46-50; Resp's Ex. 36, ECF No. 32-1 at 363, 374-75; see also Suppression Hr'g Tr., 11/12/14, at 12-17.
Petitioner does not contest Respondents' assertion that Washington is the suspect he is referencing in Claim 3. The Court cannot credit any claim by him that he was not aware of this "other suspect" when he entered his guilty plea on December 15, 2014. That is because the fact that the police had initially considered Washington to be a suspect was discussed at length at the November 12, 2014 suppression hearing, which Petitioner attended. Suppression Hr'g Tr, 11/12/14, at 12-17; see also Hr'g Tr., 12/15/14, at 7, 10 (Petitioner confirms he was present at the suppression hearing). Therefore, the Court can conclude that Claim 3 is not "substantial" and PCRA counsel was not ineffective for failing to raise it. The Court can also simply deny Claim 3 on the merits because the record allows the Court to reject its premise—that, prior to entering his plea, Petitioner was not aware that the police had initially suspected that another individual may have committed the crimes. The record establishes that Petitioner's assertion in this regard is not true.
Claim 4 also has no merit whatsoever. Petitioner contends that trial counsel was ineffective because he allegedly told him that he would be sentenced to 20 to 40 months' imprisonment—not 20 to 40 years' imprisonment—and then failed to file a post-sentence motion to withdraw his guilty plea on the grounds that Petitioner was not aware of the sentence the judge likely would impose. The transcript of the December 15, 2014 hearing demonstrates that Petitioner understood the term of imprisonment he faced before he entered his plea. The judge, the prosecutor, and trial counsel each stated that the parties' agree-upon sentence was a term of incarceration of 20 to 40 years. Hr'g Tr., 12/15/14, at 3, 12-13. When Petitioner apologized for his conduct, he stated that he "needed help, and maybe with these 20 years, I can get the help that I need." Id. at 15 (emphasis added). Also, Petitioner did not speak up after the judge imposed the sentence and clearly stated that it was for a term of years. Id. at 16. Thus, as is the case with Claim 3, although Claim 4 is procedurally defaulted, the Court can also deny it on the merits since there is enough information in the record for the Court to reject its premise.
Based upon the foregoing, the Court should deny Claim 3 and 4 because they lack merit and/or are procedurally defaulted.
F. Petitioner Is Not Entitled to an Evidentiary Hearing
Petitioner requests that this Court conduct an evidentiary hearing. This is not one of the rare habeas cases in which the Court can or should have a hearing. Because the Superior Court adjudicated Claims 1 and 2 of the merits, this Court cannot consider evidence outside the state court record when evaluating them under § 2254(d). Cullen v. Pinholster, 563 U.S. 170, 180-86, and 185 n.7 (2011). For that reason alone, the Court cannot conduct a hearing on those two claims.
As for Claims 3 and 4, in cases where the petitioner is not barred from obtaining an evidentiary hearing under Pinholster or by 28 U.S.C. § 2254(e)(2), the decision to grant a hearing rests in the discretion of the court. Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010). See also Lee v. Glunt, 667 F.3d 397, 406 (3d Cir. 2012). Petitioner's "bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing." Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) (quoting Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987)). No hearing is required on Claims 3 and 4 because the information available in the records allows the Court to dispose of them without one.
Section 2254(e)(2), as amended by AEDPA, provides that "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing" unless certain conditions are met. The Court can assume without deciding that § 2254(e)(2) does not bar it from conducting an evidentiary hearing in this case because even if the Court had the discretion to conduct a hearing on Claims 3 and 4, there is no basis for it to exercise that discretion.
G. 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. It provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from...the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). It also provides that "[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2).
"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 v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. Applying those standards here, jurists of reason would not find it debatable whether each of Petitioner's claims should be denied for the reasons given herein. Accordingly, the Court should not issue a certificate of appealability on any of Petitioner's grounds for relief.
III. CONCLUSION
Based upon the forgoing, it is respectfully recommended that the Court deny the Consolidated Amended Petition for a Writ of Habeas Corpus (ECF No. 22), as amended (ECF No. 30), and deny a certificate of appealability as to each claim. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017); Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Date: August 14, 2020
/s/_________
PATRICIA L. DODGE
United States Magistrate Judge