Opinion
Civil Action 20-384
05-05-2023
CHRISTOPHER SULLIVAN, Petitioner, v. MARK CAPOZZA, S.C.I. Fayette Supt., DISTRICT ATTORNEY OF JEFFERSON COUNTY, and ATTORNEY GENERAL OF PENNSYLVANIA, Respondents.
Hon. J. Nicholas Ranjan United States District Judge
REPORT AND RECOMMENDATION Re: ECF No. 1
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 1, be denied. It is further recommended that a certificate of appealability be denied.
II. REPORT
Christopher Sullivan (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Fayette (“SCI-Fayette”) in LaBelle, Pennsylvania. Petitioner initiated this action by filing the Petition, in which he challenges his 2017 convictions in the Court of Common Pleas of Jefferson County, Pennsylvania, for the following crimes:
• Corrupt organizations, in violation of 18 Pa. C.S.A. § 911(b)(3);
• Corrupt organizations (conspiracy), in violation of 18 Pa. C.S.A. § 911(b)(4);
• Dealing in proceeds of unlawful activities, in violation of 18 Pa. C.S.A. § 5111(a)(1);
• Conspiracy to commit burglary, in violation of 18 Pa. C.S.A. § 903;
• Attempted burglary, in violation of 18 Pa. C.S.A. § 901(a);
• 13 counts of burglary, in violation of 18 Pa. C.S.A. § 3502(a)(4); and
• Theft by unlawful taking, in violation of 18 Pa. C.S.A. § 3921(a).Com, v. Sullivan, No. 985 WDA 2018, 2019 WL 2443083, at *1 (Pa. Super. Ct. June 11, 2019). See also Docket, Com, v. Sullivan, No. CP-33-CR-495-2016 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-33-CR-0000495-2016&dnh=8TKthMObp%2Fr6DEIizVjzeg%3D%3D (last visited May 5, 2023)).
Petitioner pleaded guilty to these offenses as the result of a negotiated plea agreement. ECF No. 8-9 at 37-38. In accordance with the plea agreement, Petitioner was sentenced to an aggregate term of 7-21 years imprisonment, to be served consecutively to a 2-4 year sentence from a prior, related conviction in the Court of Common Pleas of Armstrong County. Sullivan, 2019 WL 2443083, at *1.
A. Factual Background and Procedural History
The Pennsylvania Superior Court summarized the relevant factual background and procedural history of this case as follows.
On April 5, 2017, Appellant pled guilty to 19 charges stemming from a string of burglaries perpetrated by Appellant and two co-conspirators [Gary Nau and Bryan Delandro] at various social clubs across Pennsylvania, including American Legion clubs and Veterans of Foreign Wars clubs (VFWs), between September 9, 2015 and December 1, 2015. Pursuant to the plea agreement, the trial court sentenced Appellant to seven to 21 years' incarceration. This sentence was to run consecutively to a two to four year sentence Appellant received for his guilty plea to a similar crime committed in Armstrong County, which made his total aggregate sentence nine to 25 years' incarceration. The Office of the Attorney General of Pennsylvania prosecuted this case, as the burglaries took place in six different counties (seven counties total, including the Armstrong County burglary for which Appellant had already been sentenced). Appellant contends that he accepted the plea agreement in this case because it was offered as a “package deal” to him and his long-time friend and co-conspirator, Gary Nau. Specifically, he avers that in
order for Mr. Nau to be able to accept the plea offer, Appellant also had to accept.
Attorney Fred D. Hummel represented Appellant throughout the plea process. Appellant did not file post-sentence motions or a direct appeal. Instead, on February 14, 2018, Appellant filed a pro se PCRA petition alleging ineffective assistance of plea counsel for inducing him to accept the “package deal” plea agreement despite his alleged actual innocence.Id. (bracketed text added). The Superior Court further stated that its factual history was “derived from both the Commonwealth's and Appellant's statements of the case, as well as the findings of fact of the fortieth statewide investigating grand jury[,]” which had implicated Petitioner in the crimes to which he pleaded guilty. Id. at * 1 n. 1.
Petitioner did not file a direct appeal. As a result, his convictions became final on May 5, 2017. See Pa. R.A.P. 903. See also Ellis v. Ricci, No. 09-5124, 2010 WL 1741593, at *1 (D.N.J. Apr. 28, 2010) (“In cases where the defendant does not pursue a timely direct appeal, the sentence becomes final, and the statute of limitations begins to run, on the date on which the time for filing such an appeal expired.”) (internal citations and quotation marks omitted).
Petitioner filed a timely pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, on February 10, 2018. Pro se PCRA Pet. at 1 and 19. Counsel was appointed on February 15, 2018, and filed a no-merit letter and petition to withdraw on May 4, 2018. Sullivan, 2019 WL 2443083, at *1. See also Pet. to Withdraw/No Merit, dated May 4, 2018 (“No-Merit Letter”). The No-Merit Letter included as an attachment the findings of fact of the Fortieth Statewide Grand Jury referenced by the Superior Court above, which cited to specific, particularized evidence linking Petitioner and his co-conspirators to the crimes to which Petitioner pleaded guilty. Id. at Ex. C.
The Superior Court determined that Petitioner's pro se PCRA petition was filed on February 14, 2018. Sullivan, 2019 WL 2443083, at *1. However, because Pennsylvania applies the so-called “prisoner mailbox rule” to pro se PCRA petitions, see, e.g., Com, v. Little, 716 A.2d 1287, 1288-89 (Pa. Super. Ct. 1998), the effective date of filing appears to be February 10, 2018 - the date on which the certificate of service states that that petition was mailed. Pro se PCRA Pet. at 19. Regardless, whether the correct filing date is February 10 or 14, 2018 has no effect on the disposition of the current federal habeas Petition.
The PCRA trial court granted leave to withdraw and issued a Notice of its intent to dismiss the PCRA petition without a hearing based on the No-Merit Letter on May 7, 2018. See PCRA Trial Ct. Notice to Def, dated May 7, 2018 and PCRA Trial Ct. Order of Court, dated May 7, 2018. Petitioner responded to the Notice on May 29, 2018. Pet'r's Resp. to Counsel's Mot. to Withdraw, filed May 29, 2018. The PCRA trial court denied relief without a hearing on June 4, 2018. PCRA Trial Ct. Order Dismissing PCRA Pet., dated June 4, 2018.
Petitioner filed a timely appeal to the Pennsylvania Superior Court on July 5, 2018. Sullivan, 2019 WL 2443083, at *1 and n.3. Petitioner presented the following issues on appeal:
1. Did the PCRA court err in dismissing without a hearing [Appellant's] claim that trial counsel failed to provide a full consultation regarding [Appellant's] decision to plead guilty where the advice counsel offered was unreasonable because it was legally deficient and designed to coax [Appellant] into giving up his trial rights?
2. Did PCRA counsel provide ineffective assistance by failing to do any investigation into the matters before issuing a no-merit letter and requesting to withdraw?Id. at *2 (brackets in original). See also PCRA Br. for Appellant, ECF No. 8-5 at 2. The Superior Court affirmed the denial of post conviction relief on June 11, 2019. Sullivan, 2019 WL 2443083, at *1.
Petitioner filed a timely petition for allowance of appeal with the Pennsylvania Supreme Court on July 5, 2019. ECF No. 8-8 at 2. Allocatur was denied on January 15, 2020. Com, v. Sullivan, No. 212 WAL 2019, 223 A.3d 245 (Pa. 2020) (Table).
This Court received the instant Petition requesting federal habeas relief on March 16,2020. ECF No. 1 at 1. Respondents filed a response in opposition on June 22, 2020. ECF No. 8. Petitioner did not file a traverse. See LCvR 2254.E.
The Petition is ripe for consideration.
B. Federal Habeas Claims
Petitioner raises two grounds for relief in the Petition. As to the first ground, Petitioner states:
Ground One: The State court[']s decision regarding Petitioner[']s claim that trial counsel failed to provide full consultation on decision to plea[d] guilty violated clear federal law.ECF No. 1 at 5. In support of this ground, Petitioner states that: “Attorney Fred Hummels failed to provide a full consultation on Petitioner[']s defense options, or explain to Petitioner or the Court the exact nature of the package deal plea barg[a]in.” Id.
As to the second ground, Petitioner states:
Ground Two: PCRA counsel provided ineffective assistance by failing to do any investigation into the matters.Id. at 6. In support of this ground, Petitioner alleges that PCRA counsel's “only correspondence was an introductory letter he withdrew as counsel without investigating the merits of Petitioner's PCRA claims.” Id.
C. AEDPA Requirements
Before this Court addresses the merits of Petitioner's federal habeas claims, it will address whether the Petition fulfills the applicable procedural requirements, as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
1. The AEDPA statute of limitations
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the AEDPA, which generally established a strict one-year statute of limitations for the filing habeas petitions pursuant to 28 U.S.C. § 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented.
In the instant case, Respondents concede that Petitioner's claims were timely filed. ECF No. 8 at 14. A review of the record, as set forth above, also supports this conclusion. As such, Petitioner's claims are timely.
2. Exhaustion and procedural default
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. Respondents argue that Petitioner failed to do this only with respect to Ground Two. ECF No. 8 at 16.
Rather than engaging in an analysis of whether Petitioner defaulted on any claim, the undersigned will address the merits of each ground for relief, which this Court is authorized to do by statute. 28 U.S.C. § 2254(b)(3).
D. Merits Analysis of Habeas Claims
1. Standard of review
Where the state court has reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded upon the standard found in Section 2254(d). The Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was “contrary to ... clearly established Federal law as determined by the Supreme Court of the United States” or 2) where that state court decision “involved an unreasonable application of. . . clearly established Federal law as determined by the Supreme Court of the United States.” Id. at 404-05 (emphasis deleted).
A state court decision can be contrary to clearly established federal law in one of two ways. First, the state courts could apply a wrong rule of law that is different from the rule of law required by the United States Supreme Court. Second, the state courts can apply the correct rule of law but reach an outcome that is different from a case decided by the United States Supreme Court where the facts are indistinguishable between the state court case and the United States Supreme Court case. Lambert v. Blackwell, 387 F.3d 210,234 (3d Cir. 2004) (quoting Williams, 529 U.S. at 40506).
In addition, the United States Court of Appeals for the Third Circuit has explained that “Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal courts ‘may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.'” Dennis v. Sec., Pa. Dep't of Corrs., 834 F.3d 263, 368 (3d Cir. 2016) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As the Supreme Court has further explained: “[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U.S. 415,428 (2014).
The AEDPA also permits federal habeas relief where the state court's adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Specific factual determinations by the state court that are subsidiary to the ultimate decision to grant post-conviction relief are subject to the presumption of correctness, and must be overcome by Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Lambert, 387 F.3d at 235236. The Third Circuit has declined to adopt a “rigid approach to habeas review of state fact-finding.” Id. at 236 n. 19. If a state trial court and appellate court make conflicting factual findings, the habeas court must defer to the findings of the higher court - regardless of the propriety of those findings under state law - unless they are rebutted by clear and convincing evidence. See Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006).
Finally, it is a habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. Ross v. Att'y Gen, of State of Pennsylvania, No. 07-97, 2008 WL 203361, at *5 (W.D. Pa. Jan. 23, 2008). This burden means that Petitioner must point to specific caselaw decided by the United States Supreme Court and show how the state court decision was contrary to or an unreasonable application of such United States Supreme Court decisions. Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) (“To obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he has not met this burden in this appeal. Mr. Owsley's claims must be rejected because he cannot provide us with any Supreme Court opinion justifying his position.”); West v. Foster, No. 07-CV-00021,2010 WL 3636164, at *10 n.20 (D. Nev. Sept. 9, 2010) (“petitioner's burden under the AEDPA is to demonstrate that the decision of the Supreme Court of Nevada rejecting her claim ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' 28 U.S.C. § 2254(d)(1) (emphasis added). Petitioner has not even begun to shoulder this burden with citation to apposite United States Supreme Court authority.”), affd, 454 Fed.Appx. 630 (9th Cir. 2011).
2. Ground Two is not cognizable in a federal habeas action.
In Ground Two, Petitioner alleges that his PCRA counsel provided ineffective assistance as a basis for federal habeas relief. ECF No. 1 at 6. However, this Court's ability to grant federal habeas relief is limited to violations of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Claims of error by the PCRA trial court or PCRA Superior Court simply are not cognizable in a federal habeas action. See, e.g., Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“The federal courts are authorized to provide collateral relief where a petitioner is in state custody or under a federal sentence imposed in violation of the Constitution or the laws or treaties of the United States. 28 U.S.C. §§ 2254, 2255. Thus, the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.”) See also Lambert, 387 F.3d at 247 (“habeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding.”). There is no federal constitutional right to effective counsel at a state post-conviction proceeding. Shinn v. Ramirez, 596 U.S., 142 S.Ct. 1718, 1735 (2022). Accordingly, Ground Two is not a cognizable basis for a federal habeas petition. Therefore, federal habeas relief should be denied as to this ground.
3. Ground One - ineffective assistance of trial counsel
In Ground One, Petitioner asserts that his trial counsel was ineffective for failing to provide a “full consultation” as to his decision to plead guilty. ECF No. 1 at 5. In response to the request in the form Petition that Petitioner state the specific facts that support his claim, he provides a single sentence answer. “Attorney Fred Hummels failed to provide a full consultation on Petitioner [']s defense options, or explain to Petitioner or the Court the exact nature of the package deal plea barg[a]in.” Id. There is no dispute that this ground was exhausted in the state courts.
The Sixth Amendment right to counsel exists “in order to protect the fundamental right to a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: (1) counsel's performance was unreasonable; and (2) counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690.
The first prong of the Strickland test requires a petitioner to establish that his or her attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id. Instead, Petitioner is required to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at 687). “Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52,56 (1985) (internal citation of quotes omitted).
The second prong of the Strickland test requires a petitioner to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.
In order to establish prejudice in the context of a guilty plea, a petitioner must “show [that] the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012); see also Hill, 474 U.S. at 59 (requiring a petitioner 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”). A petitioner makes this showing by establishing not only that he would not have pleaded guilty and instead would have proceeded to trial if he had been properly advised, 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).
Further, with regard to a challenge to a guilty plea in a federal habeas action, the United States Supreme Court has stated:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. 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. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.United States v. Broce, 488 U.S. 563, 569 (1989). See also Lesko v. Lehman, 925 F.2d 1527,1537 (3d Cir. 1991). The voluntariness of a plea can only be determined by considering all of the relevant circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749 (1970).
In considering a claim of ineffectiveness of counsel, Pennsylvania uses a three-part effectiveness test.
To plead and prove ineffective assistance of counsel a petitioner must establish: “(1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The failure to meet any of these aspects of the ineffectiveness test results in the claim failing. Id.Future v. Ferguson, No. 16-2346, 2022 WL 2307095, at *8 (M.D. Pa. June 27, 2022), certificate of appealability denied sub nom. Future v. Sup't Benner Twp. SCI, No 22-2419, 2022 WL 18536146 (3d Cir. Dec. 6, 2022). This test has been found by the Third Circuit not to be contrary to Strickland. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, the Superior Court's decision is not contrary to Strickland.
Here, Petitioner's claim of ineffective assistance of counsel in Ground One turns on the assertion that his trial attorney “failed to provide a full consultation on Petitioner!” ]s defense options, or explain to Petitioner or the Court the exact nature of the package deal plea barg[a]in.” ECF No. 1 at 5. The Petition is short on supporting facts and lacks developed argument. Therefore, this Court will give Petitioner the benefit of the doubt that his argument tracks with the ineffective assistance of trial counsel claims that he raised in his PCRA appeal to the Superior Court.
In his brief to the Superior Court in support of his PCRA appeal, Petitioner asserted that his trial counsel was ineffective for failing to fully apprise the trial court of the package deal plea bargain with Gary Nau, one of his co-conspirators, during his guilty plea colloquy. ECF No. 8-5 at 18. Petitioner further asserted that his trial counsel was ineffective for failing to properly advise him about whether to accept the plea agreement. Id. at 20. Specifically, Petitioner argued that trial counsel failed to discuss evidence with him, explain potential defenses to him, or to inform him that a viable double jeopardy argument existed. Id. at 20-21. Petitioner asserted that had he been provided this information, he would have not pleaded guilty, and that he only pleaded guilty to protect Nau from a lengthy sentence. Id. at 15.
The PCRA trial court filed a very short Rule 1925(a) opinion, in which it incorporated the substance of its order dismissing the case, along with the content of PCRA counsel's No-Merit Letter, as the bases for dismissing the PCRA petition. PCRA Trial Ct. Op. Pursuant to Pa. R.A.P. 1925(a), at 1.
The Pennsylvania Superior Court rejected Petitioner's ineffective assistance of trial counsel claim as to his guilty plea. At the outset of its analysis, the Superior Court addressed Petitioner's allegation of ineffectiveness in the plea colloquy as to the package deal plea.
First, Appellant argues that Attorney Hummel was ineffective for failing to object to what Appellant characterizes as an “inadequate plea colloquy.” Appellant's Brief at 17. Appellant contends that “package deal” plea offers create a greater danger of involuntary and false guilty pleas by linking one defendant's fate to the decision of another defendant. Therefore, in Appellant's view, where a “package deal” plea agreement is the basis of a guilty plea, a more extensive plea colloquy is necessary to determine whether the plea is
voluntary. It is true that federal courts in the Third Circuit “require that (1) package plea deals be disclosed to the court and (2) colloquies with package plea participants be conducted with special care.” U.S, v. Hall, 515 F.3d 186 (3rd Cir. 2008) (citation omitted). However, based on our review of relevant law, there is no analogous rule in Pennsylvania. Moreover, it should be noted that, based on the record before this Court, it is unclear whether Appellant was, in fact, subjected to a “package deal” plea agreement as he alleges. Assuming, arguendo, that the plea offer Appellant accepted was a “package deal,” his argument is nonetheless without merit.Sullivan, 2019 WL 2443083, at *3 (footnote omitted).
In Hall, the case cited by the Superior Court in the above block quote, the Third Circuit held that “package deal” plea agreements must be analyzed by trial courts with “special care.” 515 F.3d at 194-95. But Hall was not decided by the United States Supreme Court. Petitioner has not shown, and the undersigned has not found, any case decided by the United States Supreme Court that has adopted such a standard. Thus, the Superior Court's refusal to apply Hall in Petitioner's PCRA appeal does not, in and of itself, implicate that application of AEDPA deference. Lopez v. Smith, 574 U.S. 1, 2 (2014) (“Circuit precedent cannot refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.”).
The Superior Court then recognized the application of Pennsylvania Rule of Criminal Procedure 590.
Pursuant to Rule 590 of the Pennsylvania Rules of Criminal Procedure, to ensure that a guilty plea is voluntary, before accepting the defendant's plea, a judge should elicit answers to the following questions.
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?Pa.R.Crim.P 590 cmt. Id.
Upon review, the Superior Court found that:
The trial court conducted an extensive plea colloquy with Appellant after Appellant's attorney and the attorney for the Commonwealth agreed that it was “a bargain for a plea agreement and not merely a [sentencing] recommendation to the [c]ourt.” N.T., 4/5/2017, at 2. Appellant acknowledged that he was giving up his right to a jury trial and the presumption of innocence, he also indicated that he watched and understood a movie concerning his plea and sentencing rights. Appellant acknowledged that he understood the guideline ranges of sentences as well as the maximum possible fines and punishments. Appellant indicated that he had sufficient time to review all of the written charges with his attorney and he waived the reading of the factual bases for the pleas. Thereafter, the trial court went through what the Commonwealth would have to prove beyond a reasonable doubt with regard to each count of the information and Appellant pled guilty to each of the 19 charges individually. N.T., 4/5/2017, at 1 -7. Based on the totality of the circumstances, the plea colloquy established that Appellant knowingly, voluntarily, and willingly relinquished his right to a jury trial.Id.
The Superior Court also determined that the findings of fact by the grand jury - which were included in the No-Merit Letter that was explicitly adopted by the PCRA trial court in its Rule 1925(b) opinion - were just as damning for Petitioner as they were for his co-conspirator. Id. at *4. The Superior Court found that Petitioner's argument with respect to an available double jeopardy defense at trial to be meritless. Id. at *4-5. As a result, the Superior Court concluded that trial counsel was not ineffective under the Pennsylvania standard for such claims. Id. at *5.
Upon review, this Court finds that the determination by the Superior Court is consistent with Strickland and is based on a reasonable determination of the facts. The transcript of the plea and sentencing hearing, which also included Petitioner's sentencing, is 19 pages long. ECF No. 8-9 at 17-35. The substantive colloquy prior to the plea was about five pages long. Id. at 18-22. During the oral colloquy, Petitioner was informed of his right to jury trial, and that he would give it up by pleading guilty. Id. at 19. Petitioner also was informed that he was giving up the presumption of innocence, and that the prosecution would have to prove beyond a reasonable doubt each element of the crimes to which was pleading that he committed the crimes to which he was pleading. Id. at 18-22. The trial court asked whether Petitioner had sufficient time to review all of the written charges with his attorney. Id. at 21. The trial court also gave Petitioner an opportunity to make a statement prior to sentencing. Id. at 24. As the Superior Court recognized, Petitioner's only statement was to inquire how his sentence would interact with his existing sentence for a related crime in Armstrong County. Id. at 24-25. Sullivan, 2019 WL 2443083, at *4
Further, Petitioner signed a written colloquy form. ECF No. 8-9 at 37-38. The form indicated the sentence that Petitioner would receive, and also asked his age, educational level, fluency in English, and whether he understood the charges and permissible range of sentences. Id. at 37. It inquired as to Petitioner's mental competency, and set forth the maximum sentences and fines that Petitioner faced. Id. at 38. The trial court confirmed that Petitioner had signed the form, that he had understood the questions on the form, and that he understood the guideline sentence ranges and potential maximum sentence. Id. at 18-19. In addition, Petitioner was asked whether he saw and understood the movie that he was shown regarding his plea and sentencing rights. Id. at 19. He responded affirmatively. Id.
Neither the movie nor its contents are part of the record before this Court.
In addition to the trial court colloquy, this Court also looks to the Superior Court's analysis of Petitioner's PCRA claim. The Superior Court examined the findings of fact by the Fortieth Statewide Grand Jury supporting the charges against Petitioner, which were part of the trial court's Rule 1925(b) opinion by virtue of its incorporation by reference of PCRA counsel's No-Merit Letter, as described above. The Superior Court noted that much of the evidence that Petitioner found damning with respect to his co-conspirator also applied to himself. Sullivan, 2019 WL 2443083, at *4 (“Appellant left shoe prints at six of the burglaries and two men matching Appellant and Mr. Nau's descriptions were caught on surveillance cameras at nine or more of the clubs.”). Petitioner further faced a sentence of 42 to 61 years if he had been convicted without the plea agreement and sentenced consecutively, rather than the 7-21 year sentence he received as part of the plea agreement. Id. Moreover, as Petitioner recognized in his briefing, another of his co-conspirators was cooperating with the prosecution. ECF No. 8-5 at 13.
Furthermore, the Superior Court thoroughly analyzed Petitioner's argument that he had a viable double jeopardy defense under state law and concluded that it was meritless. Sullivan, 2019 WL 2443083, at *4-5. Petitioner's counsel was not ineffective for failing to raise such an argument. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.”); Ross v. Dist. Att'y, 672 F.3d 198,211 n.9 (3d Cir. 2012) (“counsel cannot be deemed ineffective for failing to raise a meritless claim”) (quoting Werts, 228 F.3d at 202).
Upon review, this Court finds that Petitioner has failed to show that the Superior Court's decision to deny PCRA relief was the result of an unreasonable application of the Strickland standard. The decision was a reasonable determination of the facts and conformed to clearly established federal law as determined by the United States Supreme Court.
Based on the record before this Court, Petitioner has failed to demonstrate that there is a reasonable probability that, absent counsel's errors, he would not have pleaded guilty and would have insisted on going to trial, Hill, 474 U.S. at 59, or that a decision to reject the plea bargain would have been rational under the circumstances, Padilla, 559 U.S. at 372. Therefore, federal habeas relief should be denied based on Ground One of the Petition.
Based on a review of the entire record, as discussed above, this Court would reach the same conclusion even if de novo review were to be applied.
E. Certificate of Appealability
A certificate of appealability should be denied, as jurists of reason would not debate that Petitioner has failed to show entitlement to relief. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
III. CONCLUSION
For the reasons that follow, it is respectfully recommended that the Petition, ECF No. 1, be denied. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.