Opinion
CIVIL ACTION No. 04-6.
May 18, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. On March 20, 2000, the petitioner pled guilty in the Court of Common Pleas for Philadelphia County to charges from two separate criminal cases. In one case, No. 9902-0441, the petitioner pled guilty to charges that he committed an armed robbery at a sporting goods store; in the other, No. 9910-0633, he pled guilty to having committed an armed carjacking of Steven Brae. In the sporting goods store robbery, the petitioner entered into a negotiated plea for a sentence of five to ten years of incarceration. In the Bae carjacking, the petitioner entered into an open plea; that is, the prosecution and the defense had not reached an agreement on the sentence for the case. On April 5, 2000, the petitioner was sentenced to an aggregate term of incarceration of eleven to twenty-two years for both cases. He is presently incarcerated at a state correctional institution.
The petitioner raises two claims. First, that trial counsel rendered ineffective assistance and induced the petitioner to plead guilty by falsely telling the petitioner that, by pleading guilty to the negotiated plea case and the open plea case in one proceeding, he would be sentenced to no more than seven to fifteen years of incarceration. The petitioner's other claim is that direct appellate counsel rendered ineffective assistance by failing to preserve the first claim on direct appeal. The petitioner believes that his first claim is not exhausted and was procedurally defaulted by direct appellate counsel. He raises the second claim to provide cause and prejudice to excuse the default of the first claim.
The District Attorney for Philadelphia County has responded to the habeas petition. The District Attorney maintains that the first claim was exhausted on direct appeal and so there is no need to consider the second claim. The District Attorney goes on to argue that the second claim has not been exhausted and is procedurally defaulted. For the reasons which follow, the court agrees that the first claim was exhausted on direct appeal and so there is no need to consider the second claim.
In order to exhaust state court remedies, a habeas claim must be presented to all levels of the state's courts. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). If a claim is not exhausted and can no longer be exhausted because the state court would not consider the claim, the claim is considered to be procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). A procedurally defaulted claim can be considered on its merits only if the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the default. See id. at 750. Attorney error which amounts to ineffective assistance of counsel can constitute cause. See id. at 753-54.
The petitioner's first claim is that trial counsel rendered ineffective assistance and induced the petitioner to plead guilty by falsely telling the petitioner that, by pleading guilty to the negotiated plea case and the open plea case in one proceeding, he would be sentenced to no more than seven to fifteen years of incarceration. The petitioner maintains that direct appellate counsel, who was new counsel, rendered ineffective assistance by failing to raise this claim on direct appeal. The petitioner concedes that direct appellate counsel raised the claim that trial counsel rendered ineffective assistance and induced the petitioner to plead guilty by falsely telling the petitioner that, by pleading guilty to the negotiated plea case and the open plea case in one proceeding, he would be sentenced to no more than seven to fifteen years of incarceration. However, the petitioner argues that direct appellate counsel relied upon state law principles of ineffective assistance rather than federal law principles. Thus, the petitioner argues that direct appellate counsel did not present the state courts with a federal claim.
The petitioner contends that a state claim of ineffective assistance is different from a Sixth Amendment ineffective assistance claim. However, Pennsylvania's Supreme Court has opined that the three-part test for ineffective assistance of counsel found in Pennsylvania case law is the same as the Sixth Amendment two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (1987). Further, the Third Circuit has agreed that the Pennsylvania test is consistent with theStrickland test. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, the court finds that, even if direct appellate counsel relied upon the Pennsylvania three-part test for ineffective assistance, he also presented a Strickland claim. Therefore, the first claim has been presented to Pennsylvania's courts and is exhausted. Since the first claim is exhausted, there is no need to consider the second claim as it is advanced solely for the purpose of excusing a non-existent procedural default of the first claim.
In Pennsylvania, the three-part test for ineffective assistance requires a defendant to show that: (1) the claim forgone by counsel had arguable merit; (2) counsel's actions had no reasonable basis to further the defendant's interest; and (3) the defendant suffered prejudice, which is a reasonable probability that, but for counsel's improper conduct, the result of the proceeding would have been different. See Commonwealth v. Williams, No. 2711 EDA 2001, slip op. at 4-5 (Pa.Super. July 15, 2002) (citing Commonwealth v. Crawley, 663 A.2d 676 ( Pa. 1995)). Under the Sixth Amendment, the two-part test for ineffective assistance requires a defendant to show that: (1) counsel's performance was deficient, that is, that counsel's performance fell below an objective standard of reasonableness; and (2) the defendant suffered prejudice, which is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 688, 693-94 (1984). In a case where it is alleged that counsel's deficient performance induced the defendant to involuntarily plead guilty, the prejudice component requires the defendant 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." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The court has not been provided with copies of the briefs direct appellate counsel filed in the Superior and Supreme Courts of Pennsylvania. The petitioner asserts that those briefs did not cite Strickland v. Washington.
If the court were to consider the second claim, the court would find the claim to lack merit because, as explained in the body of this opinion, direct appellate counsel did present the first claim to Pennsylvania's courts.
The first claim was adjudicated by the Superior Court on direct appeal. Thus, habeas relief can only be granted if the state court's adjudication of the claim was contrary to or an unreasonable application of clearly established United States Supreme Court precedent, see Williams v. Taylor, 529 U.S. 362, 412 (2000) (applying 28 U.S.C. § 2254(d)(1)), or if the state court's adjudication of the claim was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2).
The Superior Court adjudicated the petitioner's claim as follows:
Appellant argues that counsel assured him that he would not receive a sentence longer than seven to fifteen years. To support his claim, he submits a letter from trial counsel which includes the statement "I was surprised when the Judge gave you so much time, I thought you would get around 7 to 15 years at the most." Appellant's Brief, Exhibit A. He now argues that he pled guilty based on that false inducement, thus entering a plea that was not knowing and voluntary. The plea is therefore void.
Our review of the record leads us to disagree. Exhibit A of the Commonwealth brief is a copy of the written guilty plea colloquy (to the open plea) in the Bae case, signed by appellant, which contains the statement: "I know I can go to jail for up to 23.5-47 years and be fined $15,000 for the crimes I committed." It also includes the statement "Nobody promised me anything or threatened me or forced me to plead guilty. I, myself, have decided to plead guilty. I know what I say today is final."
Moreover, appellant's sworn testimony at the colloquy belies his argument. He told the court he was pleading guilty voluntarily, and that he understood the entire colloquy. He heard the court explain to him that in one of the cases his plea was negotiated, and that one was an open plea. He wanted to plead guilty to all charges. N.T., 3/20/2000, at 3-34. It is well settled that a defendant cannot invalidate his guilty plea by claiming that he lied during the colloquy. He is bound by what he stated in court, and may not assert grounds for withdrawing the plea that contradict statements made at the time of the plea. Commonwealth v. Barnes, 687 A.2d 1163 ( Pa. Super. 1996). Counsel's letter to appellant, expressing surprise at the sentence, in no way invalidates his plea. We find this issue also to be without merit, and we therefore affirm judgment of sentence.Commonwealth v. Williams, No. 2711 EDA 2001, slip op. at 5-6 (Pa.Super. July 15, 2002).
The Superior Court's adjudication of the petitioner's claim was based upon the conclusion that the petitioner's allegation concerning what advice trial counsel gave him about the decision to plead guilty was not supported by the record. That is, the Superior Court's adjudication was based upon adverse fact findings. The Superior Court determined that the letter trial counsel wrote to the petitioner, the petitioner's signing of the guilty plea colloquy in the Brae open plea case and his testimony at the guilty plea proceeding were all inconsistent with a finding that trial counsel told the petitioner that, if he pled guilty to the negotiated plea case and the open plea case in one proceeding, he would only be sentenced to seven to fifteen years of incarceration. Stated another way, the Superior Court found that trial counsel did not provide that advice to the petitioner.
The Superior Court's fact findings are presumed correct and the petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The petitioner has failed to rebut the presumption of correctness because he has chosen to rely upon the same evidence the Superior Court reviewed. He specifically relies upon the letter trial counsel wrote to him after sentencing wherein counsel expressed surprise at the sentence the trial court imposed. The petitioner asks the court to read trial counsel's letter and infer that it says something other than what the Superior Court found. However, this is not what the petitioner must do in order satisfy 28 U.S.C. § 2254(e)(1). Instead, he must present clear and convincing evidence to rebut the Superior Court's findings of fact. See Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000). The petitioner has not done so.
It is true that the Superior Court is an appellate court rather than a trial court. However, the Supreme Court has held that the presumption of correctness contained in the former habeas statute applies to the factual findings of state appellate courts as well to those of state trial courts. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981). Further, in cases applying the habeas statute as amended in 1996, the Third Circuit has noted that the presumption of correctness contained in § 2254(e)(1) applies to the factual findings of state appellate courts as well to those of state trial courts. See Stevens v. Delaware Correctional Center, 295 F.3d 361, 368 (3d Cir. 2002);Duncan V. Morton, 256 F.3d 189, 196 (3d Cir. 2001).
In light of the petitioner's failure to rebut the presumption of correctness provided by 28 U.S.C. § 2254(e)(1), the court must presume as correct the Superior Court's finding that trial counsel did not tell the petitioner that, if he pled guilty to the negotiated plea case and the open plea case in one proceeding, he would be sentenced to no more than seven to fifteen years of incarceration. Based on this presumed, adverse fact finding, counsel's performance cannot be found deficient because it must be presumed that counsel did not give the petitioner the false and deficient advice alleged by the petitioner. Since counsel's performance was not deficient, the petitioner's ineffective assistance claim must fail. See Strickland v. Washington, 466 U.S. at 697 (indicating that if the defendant fails to make the required showing for one component of the ineffective assistance claim, the claim must fail and the court need not consider the other component of the claim).
Because the court has found that the petitioner's first claim lacks merit, the Superior Court's adjudication of the claim was not contrary to nor an unreasonable application of Supreme Court precedent. See Weeks v. Angelone, 528 U.S. 225, 237 (2000). Therefore, habeas relief cannot be granted under 28 U.S.C. § 2254(d)(1). See id. Habeas relief might nonetheless be granted under 28 U.S.C. § 2254(d)(2) if the state court's adjudication of the claim was based on an unreasonable determination of the facts in light of the evidence presented. The court finds that there was ample evidence in the record before the Superior Court to support its adjudication of the petitioner's claim. Indeed, all of the evidence the Superior Court cited, which is the same evidence the petitioner relies upon now, supports the Superior Court's finding that trial counsel did not tell him, if he pled guilty to the negotiated plea case and the open plea case in one proceeding, he would be sentenced to no more than seven to fifteen years of incarceration. Therefore, habeas relief cannot be granted under 28 U.S.C. § 2254(d)(2). Cf. Campbell v. Vaughn, 209 F.3d at 291 (finding that § 2254(d)(2) barred habeas relief when only some of the evidence presented supports the state court's factual determination and some of the evidence does not).
The court notes that it has not explicitly applied the test called for by Williams v. Taylor, 529 U.S. 362 (2000). However, the Supreme Court has recently stated that there is no single, required methodology for determining whether a state court decision is contrary to or an unreasonable application of Supreme Court precedent. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citing Weeks v. Angelone, 528 U.S. 225 (2000)).
The court must also determine whether to recommend granting a certificate of appealability ("COA") with respect to the petitioner's claims. Since the court has adjudicated the petitioner's claim on its merits, a COA can issue if jurists of reason could find the court's determination of the merits of the claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court has found that the Superior Court's fact findings are to be presumed correct and that the petitioner has failed to rebut the presumption of correctness. These determinations were made based upon well-established Supreme Court and Third Circuit precedent. Further, based on the presumption of correctness, the petitioner's ineffective assistance claim lacks any factual support and, therefore, is devoid of merit. For these reasons, the court finds that reasonable jurists would not debate or disagree with the court's adjudication of the petitioner's ineffective assistance claim.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this day of May, 2004, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is also RECOMMENDED that a certificate of appealability not be granted.ORDER
AND NOW, this day of, 2004, after careful and independent consideration of the petition for a writ of habeas corpus, the memorandum in support, the response thereto and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED;
3. A certificate of appealability is not granted.