BARNETT v. MOONEY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT BARNETT, SR. :

Petitioner,

CIVIL ACTION

v. : NO. 16-2973

VINCENT MOONEY, ET AL.

Respondents. :

MEMORANDUM

JONES, II J. September 16, 2019

I. INTRODUCTION

Petitioner Robert Barnett, Sr. (“Barnett”), a prisoner serving a life sentence at the State

Correctional Institution in Retreat, Pennsylvania, filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Pursuant to Local Rule 72.1.IV(c), the matter was referred to

United States Magistrate Judge Henry S. Perkin for a Report and Recommendation (“R&R”).

Judge Perkin ultimately recommended that the Petition be denied and no Certificate of

Appealability be issued. In response, Barnett filed timely objections, to which the

Commonwealth has responded. For the reasons stated below, this Court shall deny Petitioner’s

Habeas Petition without prejudice.

II. RELEVANT BACKGROUND

To the extent set forth below, the background provided in the R&R is not contested,

therefore this Court shall rely on same. On September 8, 2001, Harry Renner (“victim”) was

working in the upstairs office of his restaurant in the Manayunk neighborhood of Philadelphia

when he was robbed at gunpoint and fatally shot once in the head. (R&R 1.) At a jury trial

proceeded over by the late Honorable David N. Savitt in the Philadelphia Court of Common

Pleas in November 2002, the Commonwealth relied on four main pieces of evidence: (1)

Barnett’s confession to police where he admits to driving the getaway car with no specific intent

to kill the victim; (2) Barnett’s confession to an inmate, his girlfriend, and his friend Craig

Walker; (3) Walker’s testimony that Barnett attempted to recruit him for the robbery and

witnessed an interaction with Barnett and Barnett’s son, where the son told Barnett he did not

have to shoot the victim; and, (4) Barnett’s “sudden windfall” of money after the robbery. (R&R

15.)

Barnett was ultimately adjudged guilty of first-degree murder, robbery, burglary,

conspiracy, and carrying a firearm without a license. (R&R 1.) On December 2, 2002, Barnett

was sentenced to life imprisonment on the murder conviction, to be served concurrently with

consecutive terms of five (5) to ten (10) years on the criminal conspiracy conviction, and three

and one-half (3½) to seven (7) years on the firearms count. (R&R 1.)

Throughout his trial, Petitioner was represented by court-appointed counsel David

Belmont, Esquire. Subsequent to trial, Belmont submitted Barnett’s direct appeal to the Superior

Court of Pennsylvania. On appeal, the Superior Court affirmed Barnett’s conviction, but stated

that even after receiving an extension, all three issues presented on appeal were subject to waiver

“based upon Appellant’s failure to draft a proper Statement of the Case and failure to properly

develop his arguments.” Commonwealth v. Barnett, 844 A.2d 1275, n.7 (Pa. Super. 2003)

(unpublished memorandum), allocator denied 862 A.2d 1253 (Pa. 2004)). The Superior Court

concluded with a suggestion that sanctions be imposed upon counsel for filing such a brief. Id. at

n.7.

On October 5, 2009, Barnett’s new attorney, Michael J. Malloy, Esquire, filed a timely

petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §

9541, asserting claims of ineffective assistance of counsel and seeking to have Petitioner’s direct

appeal rights reinstated, nunc pro tunc. Commonwealth v. Barnett, 121 A.3d 534, 538 (Pa. Super.

2015). The PCRA Court addressed the ineffectiveness claims on the merits and denied the PCRA

Petition in its entirety. The Superior Court later reversed the PCRA Court’s decision solely as to

the denial of the reinstatement of Petitioner’s direct appeal rights, but refrained from addressing

the merits of the ineffective assistance of counsel claims. Id. at 538.

In his reinstated nunc pro tunc appeal, Barnett raised claims of ineffective assistance of

trial/initial direct appeal counsel. Id.; see also Commonwealth v. Barnett, 25 A.3d 371, 373 (Pa.

Super. 2011) (en banc), vacated, 84 A.3d 1060 (Pa. 2014). The Superior Court determined

Barnett’s ineffective assistance of counsel claims were improper on direct appeal and affirmed

the judgment of his sentence. Barnett, 25 A.3d at 376-77. However, this Order was vacated by

the Pennsylvania Supreme Court and the case was remanded back to the PCRA Court1 based

upon a recent decision in the matter of Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), which

held that ineffective assistance of counsel claims must be deferred to PCRA review unless

accompanied by a PCRA waiver.

On November 6, 2014, Barnett returned to the PCRA Court and after participating in a

waiver colloquy, waived his PCRA rights in order to proceed with his reinstated nunc pro tunc

direct appeal. (PCRA Hr’g Tr. 1:2-9, Nov. 6, 2014.) This waiver permitted the Superior Court to

address the following claims on the merits:

1. Trial Counsel and Appellate Counsel rendered ineffective assistance of

Counsel for failing to properly preserve and file for appeal issues raised at

trial regarding a) evidence of Appellant’s flight from an unrelated incident

as evidence of Appellant’s guilt in the instant case; b) introduction of

evidence of money seized from the defendant in an unrelated incident as

evidence of “sudden wealth” of the Defendant from the instant case; c) the

1 Commonwealth v. Barnett, 84 A.3d 1060 (Pa. 2014).

introduction of testimony and evidence of Appellant’s arrest for a crime

unrelated to the criminal charge for which he was on trial;

2. Trial Counsel was ineffective for failing to request an instruction that the

charges which gave rise to the evidence of the defendant’s flight and

monies [sic] found on the defendant were unrelated to the charge for

which he was on trial were dismissed for lack of prosecution;

3. That trial Counsel was ineffective in failing to object to the

Commonwealth’s closing argument where the prosecution argued that it

need not prove a specific intent to kill in order to be found Guilty of

Murder in the First Degree and was ineffective in failing to object to the

trial Court’s instruction that Appellant could be found Guilty of Murder in

the First Degree on the acts, circumstantial or direct of an accomplice, co-

conspirator thereby instructing the jury that the Commonwealth did not

need to prove a specific intent to kill by appellant to be found Guilty of

Murder in the First Degree.

4. That trial counsel was ineffective for failure to object to the introduction to

or preserve for appeal and file for appeal in the introduction the testimony

of Craig Walker of the testimonial statement of Defendant’s son/co-

Defendant Robert Barnett, Jr. that “you didn’t have to shoot him”;

5. That trial counsel failed to properly preserve or file an appeal to the

introduction of unrelated criminal actions and/or prejudicial testimony

relating to the Appellant that related to an Office Max Robbery in

Plymouth Meeting Mall and a composite sketch pursuant to the defendant

and the defendant’s son;

6. That trial Counsel failed to fully and properly advise Appellant regarding

his right to testify at trial and therefore the Appellant’s decision not to

testify was not fully knowing, involuntary, or intelligent including but not

limited to being ineffective for failing to investigate defendant’s access to

cash money on Appellant’s behalf that would have rebutted the

prosecution’s theory of “sudden wealth.”

Barnett, 121 A.3d at 539-40 (quoting Appellant’s Br. 4).2

Following submission of Barnett’s reinstated direct appeal, the Superior Court applied

Pennsylvania’s state law standard for adjudicating ineffective assistance of counsel claims and

affirmed judgment of sentence. Id. at 551. On December 22, 2015, the Pennsylvania Supreme

Court summarily denied Barnett’s appeal. Commonwealth v. Barnett, 128 A.3d 1204 (Pa. 2015).

2 These claims are quoted directly from Appellant’s Brief. The text is unaltered with inconsistent

capitalization in the original.

On June 14, 2016, Barnett timely filed the instant pro se Petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1.) Additionally, Barnett filed a Supporting

Memorandum of Law For Habeas Corpus Relief Pursuant to 28 U.S.C. §2254 on September 28,

2016, in which he restated the ineffective assistance of counsel claims included in his reinstated

nunc pro tunc direct appeal. (Pet. Mem., ECF No. 16.) On April 13, 2017, the Commonwealth

filed a Response to the Petition. (ECF No. 21.) Following this Response, Petitioner filed a

Response to Respondent's Response to Petitioner's Memorandum of Law for Habeas Review on

June 16, 2017, followed by an Amended Response to Respondent's Response on July 6, 2017.

(ECF Nos. 23, 25.)

Included within Barnett’s Habeas Petition are the following nine grounds for relief: the

Commonwealth incorrectly asserted that Barnett never claimed he was innocent (Ground I); trial

counsel was ineffective for failing to object to the prosecution’s closing argument and the trial

court’s instruction regarding accomplice liability (Ground II); trial counsel was ineffective for

not objecting to hearsay (Ground III); trial counsel was ineffective for not properly advising

Barnett on his right to testify (Ground IV); trial counsel was ineffective for failing to object to

and request cautionary instruction to the introduction of an unrelated case that had been

withdrawn for lack of prosecution prior to this trial (Ground V); trial/initial direct appeals’

counsel was ineffective for not filing Appellant’s Direct Appeal Brief properly and for

continuing to represent Barnett after Barnett filed a motion to remove him as counsel prior to the

trial (Ground VI); the Commonwealth incorrectly asserted that Barnett signed a confession

(Ground VII); the trial court judge “led” the medical examiner to change the time of death

(Ground VIII); and, the Superior Court abused its discretion (Ground IX). (Hab. Pet., ECF No. 1-

1 at 2-3.)

On January 28, 2019, United States Magistrate Judge Henry S. Perkin issued a Report

and Recommendation, in which he recommended that the Petition be denied. (ECF No. 27.) In

reaching his conclusions, Judge Perkin determined that the nine grounds listed in the Petition and

Supplement were not consistent with the claims raised in the Reinstated Direct Appeal. Because

of this discrepancy, Judge Perkin proceeded with an AEDPA review of the reasserted grounds

filed in Petitioner’s Memorandum that were consistent with his Reinstated Direct Appeal, and

did not review the procedurally defaulted claims in Grounds I, III, VII, VIII, and IX. (R&R 8.)

The R&R found no basis upon which the default could be excused because of Barnett’s PCRA

waiver. (R&R 8.) For the remaining claims under review, Judge Perkin found each meritless and

recommended that the Petition be denied, as well as any Certificate of Appealability.

Petitioner objected to Judge Perkin’s R&R, and the Commonwealth submitted a

Response in Opposition thereto. (Obj., ECF No. 32; Resp. Opp’n, ECF No. 34.) The matter is

now ripe for review by this Court.

III. STANDARDS OF REVIEW

A. Objections to Report and Recommendation

When objections are filed to the R&R of a Magistrate Judge, the district court judge

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). To that end,

Although the standard is de novo, the extent of review is committed to the

sound discretion of the district judge, and the court may rely on the

recommendations of the magistrate judge to the extent it deems proper. See

Rieder v. Apfel, 115 F.Supp.2d 496, 499 (2000) (citing United States v.

Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)).

[W]hether timely objections are made or not, the district court may accept,

reject or modify, in whole or in part, the findings or recommendations made

by the Magistrate Judge. See 28 U.S.C. §636(b)(1); Local Rule 72.31.

Sandstrom v. Ebbert, Civil Action No. 3:19-0433, 2019 U.S. Dist. LEXIS 147655, at *2-3 (W.D.

Pa. Aug. 29, 2019).

B. Exhaustion and Procedural Default

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241-66

(“AEDPA”) deals with the right of all persons in state custody, or in federal custody, to file a

petition in a federal court seeking the issuance of a writ of habeas corpus. In the context of a

prisoner in state custody, if such a writ of habeas corpus is issued by a federal court, the prisoner

will be released from such state custody on the grounds that certain rights accruing to that

prisoner pursuant to the United States Constitution have been violated; habeas corpus motions

pursuant to AEDPA are the only possible means of obtaining this type of relief from state

custody. Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005); Coady v. Vaughn, 251 F.3d 480 (3d

Cir. 2001).

By means of the AEDPA, Congress also created a series of intentionally restrictive gate-

keeping conditions, which must be satisfied in order for a prisoner to prevail on a habeas

petition. These procedures were enacted to support the policy of creating finality with respect to

state and federal criminal prosecutions. One such gate-keeping procedure is the requirement of

exhaustion. “An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a state court shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1); see also

Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010) (“[A] district court ordinarily cannot grant a

petition for a writ of habeas corpus arising from a petitioner’s custody under a state court

judgment unless the petitioner first has exhausted his available remedies in state court.”) (citing

28 U.S.C. § 2254(b)(1)). To accomplish this, federal habeas claims must first be “fairly

presented” to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995); see also Evans v.

Court of Common Pleas, 959 F.2d 1227,1231 (3d Cir. 1992) (citations omitted). A claim is

deemed “fairly presented” when its “factual and legal substance” is put before the state courts “in

a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn,

172 F.3d 255, 261(3d Cir. 1999). The burden of proving exhaustion always rests with the

petitioner. Coady, 251 F.3d at 488 (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).

Where a claim was not exhausted in state court, it is said to be procedurally defaulted. To

bring a procedurally defaulted claim in federal proceedings, Petitioner must demonstrate either:

(1) cause for the default and actual prejudice arising from the alleged violation of federal law; or

that (2) failure to consider the claims will result in a fundamental miscarriage of justice. Coleman

v. Thompson, 501 U.S. 722, 750 (1991). To establish the “cause” requirement, Petitioner must

“show that some objective factor external to the defense impeded counsel’s efforts to comply

with the State’s procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting

Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). Additionally, the “prejudice” element requires

the “petitioner [to] prove ‘not merely that the errors at … trial created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’” Id. at 193 (quoting United States v. Frady, 456 U.S. 152,

170 (1982)). Second, to establish a fundamental miscarriage of justice, Petitioner must

demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-32 (1995).

C. Merits Review

Where Petitioner’s claims were adjudicated on the merits in state court, the AEDPA

deference standard applies to this Court’s review of the merits determination. Rolan v. Coleman,

680 F.3d 311, 321 (3d Cir. 2012). The AEDPA limits federal habeas review of state court

judgments. Werts, 228 F.3d at 195. In a merits determination, a petition for habeas corpus may

only be granted if: (1) the state court’s adjudication of the claim “resulted in a decision contrary

to, or involved in an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or if (2) the adjudication 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)(1)-(2). “While a factual determination by a state

court is presumed to be correct under 28 U.S.C. § 2254(e)(1), a petitioner may rebut this

presumption by clear and convincing evidence.” Sileo v. Rozum, Civ. No. 12-3803, 2015 U.S.

Dist. LEXIS 158463, at *52 (E.D. Pa. Nov. 23, 2015). Additionally, when a claim has been

adjudicated on the merits in state court, federal habeas review is limited to the record before the

state court. Cullen v. Pinholster, 563 U.S. 170, 185-86 (2011).

IV. DISCUSSION

A. Barnett’s PCRA Waiver

Petitioner’s first objection pertains to his waiver of any subsequent post-conviction relief

under Pennsylvania’s Post Conviction Relief Act. (Obj. 2, ECF No. 32.) Specifically, Petitioner

asserts that his counsel advised him to waive his PCRA rights and proceeded to submit an appeal

that did not include all claims discussed. (Obj. 2, ECF No. 32.) Further, Petitioner uses this

alleged ineffectiveness of counsel as a basis for submitting claims that were not appropriately

presented to the state courts. In order to resolve this problem, Barnett requests that the instant

Petition be denied without prejudice, thereby providing him with an opportunity to present his

unexhausted claims to the state court.3 (Obj. 3, ECF No. 32.)

3 The doctrine of “exhaustion of state remedies” requires a federal habeas petitioner to present all

claims to the state courts prior to seeking relief from the federal courts. 28 U.S.C. § 2254.

However, the exhaustion requirement does not apply in cases where the state courts would not

Federal courts reviewing a habeas petition generally refuse to hear procedurally defaulted

claims “pursuant to an independent and adequate state procedural rule.” Johnson v. Lee, 136 S.

Ct. 1802, 1803-04 (2016). An “adequate” state rule must be “firmly established and regularly

followed.” Id. To be firmly established and regularly followed, “(1) the state procedural rule

[must] speak in unmistakable terms; (2) all state appellate courts [must] refuse to review the

petitioner’s claims on the merits; (3) and [this] refusal [must be] consistent with other decisions.”

Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). The test is not met here.

When determining if Barnett’s claims in his Reinstated Direct Appeal could be

adjudicated on the merits, the Supreme Court of Pennsylvania remanded Barnett’s case for

further proceedings consistent with Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Holmes

was decided approximately three months prior to the Supreme Court of Pennsylvania’s decision

to remand Barnett’s case and require a PCRA waiver. Not only was this PCRA waiver process

new, but all justices deciding Holmes—with the exception of Chief Justice Castille—voiced

their concerns with the PCRA waiver component. Id.

Holmes upheld Grant’s general rule of deferring ineffective assistance of counsel claims

to collateral review and disapproved of Bomar’s expansive exception to this rule. Holmes, 79

A.3d at 598 (citing Commonwealth v. Bomar, 826 A.2d 831, 854-55 (Pa. 2003) (recognizing an

exception to the Grant rule when claims were already presented to the trial court)); see also

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding a “petitioner should wait to raise

claims of ineffective assistance of trial counsel until collateral review.”). Instead of relying on

the Bomar exception, the Supreme Court of Pennsylvania created two of its own exceptions to

consider the unexhausted claims because they are procedurally defaulted. Slutzker v. Johnson,

393 F.3d 373, 380 (3d Cir. 2004). Here, Barnett has waived his PCRA rights and therefore

cannot present his unexhausted claims to the state court.

Grant’s general rule of deferral by allowing unitary review where: (1) “a discrete claim (or

claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent

that immediate consideration best serves the interests of justice” and (2) “the defendant seeks to

litigate multiple or prolix claims of counsel ineffectiveness” but only if there is good cause

shown, and a waiver of PCRA rights. Holmes, 79 A.3d at 564. Additionally, Holmes held that

this waiver must include an “express recognition that the wavier subjects further collateral

review to the time and serial petition restrictions of the PCRA.” Id. at 564. Here, Barnett used the

second exception in Holmes to approach the Superior Court with good cause and a PCRA waiver

so that he could pursue claims that had been deemed waived or insufficiently briefed on direct

appeal.

In reaching its result, the court in Holmes recognized that “PCRA review is designed to

embrace all cognizable claims deemed worth pursuing, in counsel’s judgment.” Id. at 579.

Therefore, Holmes stressed the importance of counsel’s analysis of claims other than

ineffectiveness and advised that unitary review “should not be pursued where it may compromise

the fullness of the defendant’s options for collateral attack represented by the PCRA, absent an

appropriate waiver.” Id. at 580.

In this case, Barnett’s second attorney chose to relinquish Barnett’s options for collateral

attack in order to avoid a duplicative process. (Appellant’s Supp. Br. 9-10.) Time was not of the

essence, as Barnett was facing a life sentence, yet counsel declined to relitigate the ineffective

assistance of counsel claims that had already received “a full evidentiary hearing during which

Barnett and trial counsel testified.” Barnett, 25 A.3d at 373. (Resp. Obj. 3.) What was not

discussed with Barnett at his colloquy, was the substantial deprivation of rights that were

inevitably traded for expediency. Counsel advised Barnett that he was “in essence waiving [his]

right to file a PCRA later.” (PCRA Hr’g Tr. 1:6, Nov. 6, 2014.) Counsel described this as a rare

situation where Barnett’s “direct appeal and [his] PCRA appeal, have been combined[,]”and

waiver of the latter was necessary for the case to move forward. (PCRA Hr’g Tr. 1:5 Nov. 6,

2014.) However, absent this PCRA waiver, Barnett could have presented other claims to the

PCRA court, including some claims described in the Habeas Petition that were not included in

his Reinstated Direct Appeal but were included in prior briefs. Counsel failed to present this

option in the colloquy, and further failed to explain to Barnett that he was essentially waiving all

ability to bring forth IAC claims against his current attorney.

Finally, Holmes warns of the potential risk associated with a waiver of PCRA rights in a

case that is “more involved and complicated.” Id. at 580. Recognizing that Barnett has an array

of cognizable claims, both IAC and non-IAC, this case is one that is “more involved and

complicated.” In the R&R, Judge Perkin acknowledges claims that stem from trial court error,

but are improperly labeled as ineffective assistance of counsel claims. For example, Judge Perkin

states “[a]s the Superior Court took pains to note, the Hobson’s choice Barnett claims he had to

confront was not a product of trial counsel’s act or failure to act; it resulted from the decision the

trial court took on the motion Barnett’s counsel indisputably filed.” (R&R 13.) As such, issues

were improperly framed on the reinstated direct appeal (and mirrored in the instant Petition),

thereby resulting in the omission of proper claims. Moreover, Judge Perkin’s R&R lists five

other accessible grounds that are rendered unexhausted and procedurally defaulted because of

this PCRA waiver. (R&R 8.) Although Holmes does not provide a detailed description of a

“more complicated and involved” case, this Court concludes from the state court record and

Judge Perkin’s R&R that Mr. Barnett’s case does fall within this description.

This Court’s review of the record indicates that the advisory warnings disseminated

throughout Holmes were not heeded in this case. In particular, Pennsylvania Supreme Court

Justice Max Baer cautioned defendants to only use the PCRA waiver “where they would

otherwise lose PCRA review entirely if not invoked imminently,” such as when the defendant is

serving a short sentence. Holmes, 79 A.3d at 587. In this case, Barnett was facing a life sentence

for murder. Justice Baer insightfully added that “presentation of routine ineffectiveness claims

on direct appeal in exchange of waiver of subsequent PCRA review would be unwise and highly

prejudicial.” Id. at 587. Further, Justice Debra Todd stated “it is difficult to imagine situations in

which competent counsel—again, outside of the short sentence scenario—could credibly invoke

[this waiver].” Id. at 594. As noted by the advisory warnings given in both the majority and

concurring opinions, Holmes constituted unestablished law and disagreement as to who should

utilize it at the time it was applied to Petitioner’s case. Because of the disagreement, there was

confusion as to the terms and expectations of this waiver process. Therefore, at the time Barnett

waived his PCRA rights, this state procedural rule did not speak in unmistakable terms and was

therefore not “clearly established.”

With regard to the state appellate courts’ review of Barnett’s claims, both the Superior

Court and Supreme Court of Pennsylvania grappled with the appropriate procedural steps Barnett

was required to take. In the Superior Court opinion, the Honorable Jacqueline O. Shogan stated

“[a]lthough the learned Majority aptly addresses the multiple concerns associated with this

unclear area of law, I do not believe it is appropriate that this Court create a bright-line rule of

waiver given the current state of the law and apply it to the instant case.” Barnett, 25 A.3d at

377. The opinion is laced with uncertainty and leaves this Court to view the state procedural rule

as inadequate at the time of Barnett’s PCRA waiver. Thus, this Court is not required to decide

based upon the consequences of this state procedural rule. Johnson, 136 S. Ct. at 1803-04.

Neither the courts nor the attorneys had a firm understanding of this unestablished area of law.

Accordingly, it would be a true miscarriage of justice to relinquish the remaining rights of this

Petitioner because of conceivable errors by not one, but two attorneys.

Assuming arguendo this Court was to find that the procedural state rule was firmly

established at the time of Barnett’s procedural default, the waiver colloquy itself does not follow

the guidelines vaguely set forth in Holmes. The Third Circuit has acknowledged that “AEDPA

heightened the level of deference accorded to state court determinations[.]” However, this

deference does not apply to a waiver issue because the Third Circuit recognizes that a question of

waiver validity does not entitle a petitioner to relief on the merits of a habeas petition and is

therefore not a “claim.” Fahy v. Horn, 516 F.3d 169, 180 (3d Cir. 2008). Notwithstanding, the

Third Circuit has opined that:

[W]hen the state court’s waiver colloquy fails to reveal whether the

requirements of a valid waiver have been met due to procedural infirmities,

substantive deficiencies, and an insufficient probing into a defendant’s

knowledge of the rights he is waiving, the findings by that court are too

unreliable to be considered “factual determinations.”

Id. at 183.

Thus, this Court is not required to defer to the state court’s determination that Barnett’s

waiver was valid if the colloquy fails to reveal whether the requirements have been met. See also

United States v. Mabry, 536 F.3d 231, 237-38 (3d Cir. 2008) (“A court has an affirmative duty

both to examine the knowing and voluntary nature of the waiver and to assure itself that its

enforcement works no miscarriage of justice, based on the record evidence before it.”). With this

standard in mind, this Court finds the circumstances surrounding these “factual determinations”

of the state court problematic in light of this Petitioner’s unusual circumstances and life sentence.

To be clear, this Court is not concluding that all PCRA waivers are invalid. As discussed in the

concurring opinions presented in Holmes, there are instances when the waiver of collateral

review would be deemed strategic and justified. See Glass v. Lane, No. 16-0154, 2017 U.S. Dist.

LEXIS 121022, at *24 (E.D. Pa. July 31, 2017) (holding “waiver of appellate rights that are

contained in a guilty plea agreement are generally permissible if entered into knowingly and

voluntarily, unless they work a miscarriage of justice”); see also Holmes, 79 A.3d at 578-79

(acknowledging that short sentences can qualify as “good cause” to request direct review and

waive PCRA rights). However, for an individual such as Barnett who is serving a life sentence

and was at risk of forfeiting the right to pursue potentially meritorious issues, this waiver is

inappropriate and unjustified.

An appropriate waiver must include an “express recognition that the waiver subjects

further collateral review to the time and serial petition restrictions of the PCRA.” Holmes, 79

A.3d at 564. Barnett’s waiver colloquy contained a very brief overlay of the purpose of the

waiver and informed him of his inability to bring forth another PCRA petition. (PCRA Hr’g Tr.

1:2-9, Nov. 6, 2014.) However, this Court’s review of the waiver reveals significant

deficiencies. As noted above in Holmes, Justice Todd questioned “whether a defendant’s waiver

could truly be ‘knowing’” in cases that are more involved and complicated. Id. at 594. Again,

Barnett’s case is more involved and complicated, with numerous cognizable claims.

Not only must this waiver be knowing and voluntary, but Holmes requires a waiver

colloquy to indicate to the defendant that “all PCRA claims IAC and non-IAC” are waived and

subsequent PCRA claims are subject to the sixty-day requirement of 42 Pa.C.S. § 9545(b).

Commonwealth v. Buterbaugh, No. 1152 MDA 2017, 2018 Pa. Super. LEXIS 3738, at *11 (Pa.

Super. Oct. 10, 2018); see also Holmes, 79 A.3d at 579-80. Here, counsel explained to Barnett

that this waiver would relinquish any right to further PCRA review, but did not specifically

explain what that “PCRA review” would include. In particular, Petitioner was not informed that

all claims, not just those of ineffective assistance of counsel, could no longer be brought forth in

any capacity, unless they were presented in accordance with very limited exceptions that were

not applicable to this case. (PCRA Hr’g Tr. 1:2-9 Nov. 6, 2014.)4 With numerous possible

claims and a life sentence at stake, the colloquy at issue in this case was inadequate to truly

determine whether Barnett knowingly and voluntarily waived his PCRA rights.5 Accordingly,

this Court finds said waiver invalid, thereby resulting in a miscarriage of justice.

B. Procedurally Defaulted Claims

Barnett’s remaining objections pertain to procedurally defaulted claims that must be

remanded and fairly presented before the state courts.6

4 Petitioner’s briefing raised Martinez v. Ryan, 566 U.S. 1 (2012) as a basis for relief and Judge

Perkin addressed same in his R&R. Because this Court finds Petitioner’s Holmes waiver to be

invalid, a discussion of Martinez at this juncture is not necessary.

5 The fact that Barnett requested this Court to send him back to the PCRA court for further

review of his unexhausted claims, sheds light on the fact that he truly did not know what he was

waiving at the time of his colloquy. (Obj. 3, ECF No. 32.)

6 Barnett’s Objections reference a claim of ineffective assistance of trial counsel with regard to

Gail Alvin’s testimony, as well as a claim of cumulative error. (Obj. 2.) Neither of these claims

have been fairly presented to the state courts.

V. CONCLUSION

For the reasons set forth hereinabove, Barnett’s Habeas Petition shall be dismissed

without prejudice and he shall be afforded an opportunity to fully exhaust all claims in state court

that were forfeited by reason of the defective PCRA waiver that occurred on November 6, 2014.

An appropriate Order follows.

BY THE COURT:

/s/ C. Darnell Jones, II J.