BUTTOLPH v. ADAMS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN CARL BUTTOLPH, :

Petitioner, :

: 1:18-cv-2370

v. :

: Hon. John E. Jones III

MELINDA ADAMS, et al., :

Respondents. :

MEMORANDUM

September 10, 2020

Petitioner Steven Carl Buttolph (“Petitioner” or “Buttolph”) filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 4),

accompanied by exhibits (Doc. 4-1 through 4-10) and a memorandum of law (Doc.

4-11). Buttolph is seeking relief from his plea of guilty to one count of murder in

the third degree and sentence of ten to twenty years imprisonment entered in the

Court of Common Pleas of Perry County, Pennsylvania on May 5, 2014.

The petition is ripe for disposition. For the reasons set forth below, the

Court will deny the petition.

I. STATE COURT FACTUAL AND PROCEDURAL BACKGROUND

In its April 25, 2017 Memorandum addressing Buttolph’s appeal, in which

he challenges an order entered by the trial court on September 17, 2015, as well as

the denial of his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541–9546, the Superior Court of Pennsylvania set forth the

following background:

In the early morning hours of May 3, 1992, Edward Williams, an owner

of an adult bookstore, found his store clerk, Steven V. Gosline, dead

inside the store. In addition, he discovered a large sum of money was

missing from the cash register. An autopsy revealed Gosline’s cause of

death as multiple traumatic injuries to the head and the manner of death

as homicide. Police began an investigation.

Donald Shreffler, a friend of Gosline’s, told police that two other

individuals were in the store when he left the night before at 11:30 p.m.

He identified Jeff Mayhew and “Steve,” who was known as a customer

at another adult bookstore. Steve was eventually identified as

Appellant. Appellant was interviewed by police and admitted to being

in the store on that night, but did not admit to being involved in

Gosline’s death.

Three years later, on January 23, 1995, Marcie Buttolph, Appellant’s

wife, contacted police and reported that Appellant told her that he killed

Gosline. Appellant was charged in connection with Gosline’s murder,

but Marcie then refused to testify at the preliminary hearing.

Accordingly, the charges were withdrawn.

In 2008, police again interviewed Marcie. She and Appellant were no

longer married, as they had divorced in 1997. [n.2 In addition to telling

police once again that Appellant killed Gosline, she informed police

that Appellant regularly smoked Marlboro cigarettes sold in a red box.

Marlboro cigarette butts had been found at the crime scene, and police

ordered DNA testing of them. The results returned a “partial DNA

profile consistent with” Appellant. Affidavit of Probable Cause,

2/20/2009, at 3.

Marcie also reported to police that Appellant told her 1) that he

stabbed Gosline, but Gosline did not die so Appellant picked up a

pipe and beat him to death; 2) that Appellant stole $1,500 from the

store; 3) that if Marcie told anybody about it she would never see

their son again; and 4) that he disposed of the murder weapon and

his clothes in the Susquehanna River. See Motion to Suppress,

2

11/29/2011, at § 4.]

Marcie agreed to allow police to wiretap her phone conversations with

Appellant in an attempt to learn more about his involvement in this

murder. A number of those recorded conversations contained

incriminating statements.

In February 2009, Appellant was arrested and charged with criminal

homicide, robbery, and theft by unlawful taking. Appellant hired

Attorney Jerry Russo to represent him. At Appellant’s preliminary

hearing, Marcie testified on cross-examination by Attorney Russo

about Appellant’s having admitted to her that he killed Gosline during

the course of robbing the store. The charges were held for trial.

On November 29, 2011, Appellant filed a pre-trial motion to suppress

testimony from Marcie, arguing that her testimony should be prohibited

on the basis of the confidential communication marital privilege

codified at 42 Pa.C.S. § 5914. On July 31, 2012, the trial court denied

Appellant’s motion. Appellant filed an appeal to this Court, and on

November 26, 2013, this Court concluded that we lacked jurisdiction

to entertain an appeal from this interlocutory order. See Commonwealth

v. Buttolph, 91 A.3d 1296 (Pa. Super. 2013) (unpublished

memorandum).

A jury was selected on April 29 and 30, 2014. On May 1, 2014,

Appellant and the Commonwealth entered into a negotiated guilty plea

agreement. Appellant pled guilty to third-degree murder in exchange

for the Commonwealth's withdrawing the other charges. In addition, the

Commonwealth agreed to recommend Appellant be sentenced to ten to

20 years of incarceration, the maximum sentence available for third-

degree murder in 1992. Furthermore, the agreement provided that

“unless [Appellant] is involved in criminal activity, extensive

disciplinary action, or takes unwarranted action against th[e district

attorney’s office], [the district attorney] will not oppose his parole

consideration at his minimum.” N.T., 5/1/2014, at 5 (unnecessary

capitalization omitted).

Appellant signed a written plea colloquy and the trial court conducted

3

a thorough on-the-record colloquy. The trial court pointed out

specifically that Appellant was “giving up [his] right to challenge many

aspects on appeal; like results of suppression motions, basically

anything factually regarding this case[.]” Id. at 9 (unnecessary

capitalization omitted). The trial court told Appellant that the only

things he could challenge on direct appeal were “the voluntariness of

[his] guilty plea, the jurisdiction of [the trial court] and the legality of

[the] sentence.” Id. at 10 (unnecessary capitalization omitted). The trial

court accepted the plea and sentenced Appellant in accordance with his

plea agreement.

On May 12, 2014, Appellant filed pro se a post-sentence motion

challenging the discretionary aspects of his sentence. On May 13, 2014,

the trial court denied Appellant’s motion. [n.3 It is well-settled that

where “[t]he trial court imposed the sentence Appellant negotiated with

the Commonwealth[,] Appellant may not ... seek discretionary review

of that negotiated sentence.” Commonwealth v. Reid, 117 A.3d 777, 784

(Pa. Super. 2015). See also Commonwealth v. O'Malley, 957 A.2d

1265, 1267 (Pa. Super. 2008) (“One who pleads guilty and receives a

negotiated sentence may not then seek discretionary review of that

sentence.”).] On May 21, 2014, [n.4 According to Appellant, he applied

for a public defender on May 11, 2014.] court-appointed counsel from

the office of the public defender, Attorney Barbara Wevodau, filed

timely a notice of appeal on Appellant’s behalf, which was docketed at

1464 MDA 2014. Attorney Wevodau then informed Appellant that

after review of the file, along with Appellant’s communications to her,

she recommended he file a PCRA petition asserting claims of

ineffective assistance of counsel. In addition, Attorney Wevodau

notified the trial court that due to the caseload at the public defender’s

office, this case needed to be re-assigned to Attorney William Shreve.

On November 24, 2014, the court issued an order appointing Attorney

Shreve. On December 31, 2014, Attorney Shreve discontinued

Appellant’s direct appeal, and on February 23, 2015, Attorney Shreve

filed a timely, counseled PCRA petition on Appellant’s behalf.

On March 23, 2015, Attorney Shreve filed a petition to withdraw as

counsel and no-merit letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

4

Super. 1988) (en banc ). On April 8, 2015, the PCRA court issued a

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition

in 20 days without a hearing. The PCRA court also permitted Attorney

Shreve to withdraw.

On June 4, 2015, Appellant pro se filed a motion requesting more time

to respond to the PCRA court’s Rule 907 notice. He also requested that

his direct appeal rights be reinstated. On September 17, 2015, the

PCRA court entered an order granting Appellant additional time to file

a response to the Rule 907 notice. The PCRA court denied Appellant’s

request to reinstate his direct appeal.

On October 4, 2015, Appellant pro se filed an amended PCRA petition.

On October 19, 2015, Appellant pro se filed a notice of appeal from the

September 17, 2015 order. [n.5 This appeal, filed on October 19, 2015,

was docketed in this Court over seven months later, on June 6, 2016, at

891 MDA 2016. It is not clear why the clerk of courts did not follow

the mandates of Pa.R.A.P. 905, which provide that upon receipt of a

notice of appeal, the clerk of courts shall transmit it to this Court.] The

PCRA court took no further action in this matter until March 22, 2016,

when it dismissed Appellant's PCRA petition. Appellant timely filed a

notice of appeal from that order, which was docketed at 892 MDA

2016. The PCRA court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant

filed a statement raising 34 issues. On July 26, 2016, the PCRA court

filed a memorandum.

Commonwealth v. Buttolph, No. 891 MDA 2016, 2017 WL 1476315, at *1–3 (Pa.

Super. Ct. Apr. 25, 2017); Doc. 4-3. With regard to the number of issues presented

for review, the Superior Court stated as follows:

Before we reach the issues presented by Appellant, we consider the

PCRA court's conclusion that Appellant has violated Pa.R.A.P. 1925(b)

by presenting 34 issues in his statement of errors complained of on

appeal.7 See PCRA Court Opinion, 7/26/2016, at 1 (unnumbered).

Based on the sheer number of issues set forth in this statement, the

5

PCRA court analogizes this case to our decision in Kanter v. Epstein,

866 A.2d 394 (Pa. Super. 2004). In Kanter, this Court held the

defendants had waived all issues on appeal by raising 104 issues for

review in violation of Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall

concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the

judge.” (emphasis added)). We held that “[b]y raising an outrageous

number of issues, the [d]efendants have deliberately circumvented the

meaning and purpose of Rule 1925(b) and have thereby effectively

precluded appellate review of the issues they now seek to raise.”

Kanter, 866 A.2d at 401. We agree that the number of issues hampers

our review. In addition to the number of issues in the statement, our

review is further impeded by the fact that Appellant’s briefs on appeal

are not models of clarity. He raises numerous issues, sub-issues, and

arguments within those issues, most of which are rambling and include

citation to law irrelevant to the issue presented. Nevertheless, the PCRA

Court attempted to address the primary issues it could identify, and we

will endeavor to do the same. See PCRA Court Opinion, 7/26/2016, at

2–5 (unnumbered).

Id. at *4. The court considered the following issues:

“Appellant claims that Attorney Russo was ineffective by not objecting

to Appellants guilty plea during the proceedings, which thereby

permitted him to enter the plea unknowingly and involuntarily. See

Appellant’s Brief filed at 892 MDA 2016 (Appellant’s Second Brief)

at 13–19; 29–31. Specifically, Appellant argues that his plea colloquy

was defective because the trial court did not inform him of all of the

elements of third-degree murder, particularly malice. Id. at 13–15.

Appellant also complains that he was never informed of the factual

basis of the murder. Id. at 15–17.” Commonwealth v. Buttolph, No. 891

MDA 2016, 2017 WL 1476315, at *5 (Pa. Super. Ct. Apr. 25, 2017)

“Appellant also claims that counsel was ineffective by coercing his

guilty plea. See Appellant's Brief filed at 891 MDA 2016 (Appellant’s

First Brief) at 29–33; Appellant’s Second Brief at 31–41).” Id. at *7.

“We now turn to the issue of whether either Attorney Russo or Attorney

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Wevodau was ineffective by failing to file a post-sentence motion to

withdraw Appellant’s guilty plea. [n.10 omitted] See Appellant’s First

Brief at 16–21.” Id.

“We now consider whether Attorney Shreve was ineffective for

withdrawing Appellant’s direct appeal and whether the PCRA court

erred by not reinstating Appellant’s direct appeal rights.” [n.12

“Appellant also argues that Attorney Russo was ineffective for failing

to file a direct appeal. See Appellant's First Brief at 13, 16–22.

However, any prejudice that could have ensued from this failure was

alleviated when Attorney Wevodau filed a direct appeal. Additionally,

Appellant argues that Attorney Wevodau was ineffective both by

abandoning him and in the way she handled the direct appeal. Id. at 14,

22–26. However, Appellant's rights were in no way impeded when

Attorney Wevodau informed the court that she could no longer

represent Appellant and that Attorney Shreve should be appointed.

Additionally, Appellant's argument that Attorney Wevodau was

ineffective for failing to file a concise statement of errors complained

of on appeal is without merit because Attorney Shreve withdrew the

direct appeal.”]. See Appellant’s First Brief at 11–15; 22–29. In support

of these arguments, Appellant suggests that Attorney Shreve should

have pursued issues related to Appellant’s unknowing and involuntary

guilty plea. See Appellant's First Brief at 27–33.” Id. at *8.

“We now consider the numerous additional issues Appellant had with

respect to Attorney Russo’s representation of him up until Appellant

pled guilty…. Appellant now claims that Attorney Russo was

ineffective in his trial preparation; specifically he suggests that counsel

did not obtain transcripts of the wiretapped phone conversations in a

timely fashion and never obtained the original audio. See Appellant's

Second Brief at 19–27. Appellant also suggests that Attorney Russo

was ineffective for not spending adequate time preparing for this case

and for not interviewing certain witnesses. Id. at 45–49. See also id at

49–59 (setting forth various things that Appellant claims that Attorney

Russo did not do, as well as arguing that Attorney Russo delayed the

case unnecessarily).” Id.

7

The Superior Court quashed the appeal of the trial court’s September 17,

2015 Order because it did not dispose of all claims or all parties and “was not

entered as a final order pursuant to Pa.R.A.P. 341(c).” Id. at *3. The court also

affirmed the denial of Buttolph’s PCRA petition. Id. at *9. The Pennsylvania

Supreme Court denied Buttolph’s petition for allowance of Appeal on November

14, 2017.

Buttolph initiated habeas corpus proceedings on September 19, 2018.

II. ISSUES PRESENTED FOR FEDERAL REVIEW

Buttolph seeks federal review of the following issues:

“Ground One: Double Jeopardy/Illegal Re-arrest (Violation of

Petitioner’s Fourth, Fifth, Sixth, and Fourteenth Amendments of the

Constitution of the United States)[.]” (Doc. 4, p. 4). Petitioner alleges

the District Attorney rearrested him using neither new nor

undiscoverable evidence and that trial counsel was ineffective in failing

to prepare and present a “double jeopardy/illegal re-arrest motion….”

(Id.).

“Ground Two: Brady Violation (Violation of Petitioner’s Fifth, Sixth,

and Fourteenth Amendments of the Constitution of the United

States)[.]” (Id. at 6). He alleges the District Attorney and Judge

committed Brady violations and that trial counsel was ineffective in

failing to prepare and pursue a motion to compel mandatory discovery.

(Id.).

“Ground Three: Speedy Trial Violation. (Violation of Petitioner’s

Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution of

the United States)[.]” (Id. at 8). He asserts that trial counsel was

ineffective in continuing his case fifty-two times in sixty-four months

and that the trial judge was aware that the continuances were excessive.

8

(Id.).

“Ground Four: Sixth Amendment Violation, Denial of Counsel

(Violation of Petitioner’s Sixth, and Fourteenth Amendments of the

Constitution of the United States)[.]” (Id. at 10). He contends the

District Attorney and trial judge violated his right to counsel when they

brought him before open court without his attorney present and that trial

counsel was ineffective in failing to act and insure his constitutional

rights were upheld. (Id.).

“Ground Five: Ineffective Assistance of Counsel (Violation of

Petitioner’s Sixth Amendment of the United States)[.]” (Id. at 12).

Included in this claim are the following errors:

1. Trial counsel elicited and published detrimental

testimony;

2. Trial counsel allowed defective colloquy;

3. Trial counsel failed to investigate or interview any

witnesses during his sixty-four months of pretrial

incarceration; and

4. Trial counsel failed to inform him of all elements of

third degree murder.

(Id. at 12, 13).

“Ground Six: Judicial Misconduct (Violation of Petitioner’s Fifth, and

Eighth Amendments of the United States [Constitution].” (Id. at 15).

He alleges that the trial judge failed to inform him of his post guilty

plea and post sentence rights. (Id.).

III. DISCUSSION

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper

mechanism for a prisoner in custody pursuant to the judgment of a state court to

challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S.

475, 498-99 (1973). 28 U.S.C. § 2254, provides, in pertinent part:

9

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b)(1) 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 –

(A) the applicant has exhausted the remedies available in

the courts of the State;

...

(d) 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

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254.

Section 2254 clearly sets limits on the power of a federal court to grant an

application for a writ of habeas corpus on behalf of a state prisoner. Cullen v.

Pinholster, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir.

2014). A federal court may consider such a petition only “on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.”

10

28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the

Constitution or laws or treaties of the United States,” § 2254 places a high

threshold on the courts.

Further, “it is not the province of a federal habeas court to reexamine state-

court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S.

19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam).” Estelle v.

McGuire, 502 U.S. 62, at 67–68 (1991). A federal habeas court may not consider a

petitioner’s claims of state law violations; review is limited to issues of federal

law. See Estelle, 502 U.S. at 67-68; Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A

federal court may not issue the writ on the basis of a perceived error of state law.”);

Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state prisoner alleges no

deprivation of a federal right, § 2254 is simply inapplicable.”).

A. Waiver

In considering Buttolph’s PCRA appeal, which contained a myriad of

claims, the Superior Court pointed out that “ ‘upon entering a guilty plea[,]

[Appellant] waive[d] his right to challenge on appeal all non-jurisdictional defects

except the legality of his sentence and the validity of his plea.’ Commonwealth v.

11

Rush, 909 A.2d 805, 807 (Pa. Super. 2006).” Commonwealth v. Buttolph, 2017 WL

1476315, at *8. This is in accord with settled Pennsylvania law which makes clear

that by entering a guilty plea, the defendant waives his right to challenge on direct

appeal all nonjurisdictional defects except the legality of the sentence and the

validity of the plea. Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super.

2008).

Indeed, a defendant routinely waives a plethora of constitutional

rights by pleading guilty, including the right to a jury trial by his

peers, the right to have the Commonwealth prove his guilt beyond

a reasonable doubt, and his right to confront any witnesses against

him. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969) (knowing and voluntary guilty plea waives privilege

against self-incrimination, right to jury trial, and right to confront

one's accusers). Furthermore, a defendant is permitted to waive

fundamental constitutional protections in situations involving far

less protection of the defendant than that presented herein. [See,

e.g.], Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661,

115 L.Ed.2d 808 (1991) ( [stating:] “The most basic rights of

criminal defendants are ... subject to waiver”); Johnson v. Zerbst,

304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ( [stating]

sixth amendment right to counsel may be waived).

Commonwealth v. Byrne, 833 A.2d 729, 735–36 (Pa. Super.2003).

This is also in accord with United States Supreme Court precedent, which has

unequivocally held that “[w]hen a defendant pleads guilty he or she, of course,

forgoes not only a fair trial, but also other accompanying constitutional guarantees.

Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

12

(pleading guilty implicates the Fifth Amendment privilege against self-

incrimination, the Sixth Amendment right to confront one's accusers, and the Sixth

Amendment right to trial by jury).” United States v. Ruiz, 536 U.S. 622, 628–29

(2002). “[A] guilty plea represents a break in the chain of events which preceded

it in the criminal process. When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with which he is charged, he may

not thereafter raise independent claims relating to the deprivation of constitutional

rights that occurred prior to entry of the guilty plea. He may only attack the

voluntary and intelligent character of the guilty plea…” Tollett v. Henderson, 411

U.S. 258, 267 (1973). “[A] plea of guilty, voluntarily and understandingly made,

constitutes a waiver of nonjurisdictional defects and defenses, including claims of

violation of constitutional rights prior to the plea.” See Ramdass v. Angelone, 530

U.S. 156, 167 (2000).

During the plea colloquy hearing, Buttolph indicated that he understood that

by pleading guilty, he was giving up of his presumption of innocence and his right

to a jury trial. (Doc. 21-2, p. 7). The trial court further advised as follows: “Do

you understand that by entering this Guilty Plea, you are giving up your right to

challenge many aspects on Appeal; like results of Suppression Motions, basically

anything factually regarding this case? I mean, you are almost left to challenge, on

13

Direct Appeal at least, the voluntariness of your Guilty Plea, the jurisdiction of this

Court, and the legality of your Sentence.” (Id. at 9, 10). He responded “Yes, sir.”

(Id. at 10). Trial counsel added the following:

MR. RUSSO: I—if I please the Court, I just want to be certain that

– and I believe it was covered; but out of an

abundance of caution, there was litigation in the

nature of, I believe, a Suppression Motion, but in

involved the pre-trial effort to exclude from

testimony of Marci Piazza concerning spousal

communication.

That issue was raised in pre-trial pleadings. It was

litigated before Senior Judge Quigley. It was then

raised at the Superior Court in advance of trial. The

Superior Court has sent the matter back essentially

saying it is not timely, that the matter can be raised

if there is a conviction and the Commonwealth

introduced that evidence at trial.

I want to be certain – and I believe he is; but I want

to be certain that the record is abundantly clear that

Mr. Buttolph understands that that issue is no longer

preserved for appellate review following the entry

of a Guilty Plea, along with any other matters that

could have been raised procedurally before – and I

am talking about Motions in Limine that could have

been raised prior to the beginning of trial on

Monday.

THE COURT: Do you understand all of that, sir?

MR. BUTTOLPH: Yes.

THE COURT: And that is what I was getting about by Suppression

Motions or preserving anything.

14

By entering the Guilty Plea, you are giving up your

right to challenge anything factually about the case

that you admitted to today or to challenge any of the

legal rulings that have been made thus far.

Do you understand that?

MR. BUTTOLPH: Yes. Sir.

***

MR. RUSSO: The last matter, if I – if I may, Your Honor, you –

you correctly stated that he would retain three areas

available to him for appellate review

notwithstanding the entry of a Guilty Plea. That

would be the voluntariness of his Guilty Plea, the

jurisdiction of this Court, and the legality of this

Sentence.

***

THE COURT: Mr. Buttolph, do you have any questions?

MR. BUTTOLPH: No sir.

(Doc. 21-2, pp. 10, 11).

Additionally, in his written Plea Agreement, he indicated that he understood

the following question:

9. There is very little that you can appeal after a guilty plea. You

cannot appeal the fact that you are guilty. You cannot appeal on the

basis that your rights have been violated. You can only appeal the

following things:

(a) That you did not understand what you were doing when you pled

15

guilty.

(b) That the Perry County Court did not have jurisdiction over your

case.

(c) Whether your lawyer was effective.

(d) Whether your sentence was lawful.

(Doc. 21-13, p. 3).

Therefore, by pleading guilty, Buttolph waived the right to challenge various

constitutional violations that arose prior to the entry of the guilty plea including the

Brady claims in Ground Two, the Speedy Trial claims in Ground Three, and the

ineffective assistance of trial claims, unrelated to the guilty plea proceedings,

which he raised in Ground Four and Grounds Five (1) and (3).

B. Exhaustion and Procedural Default

Absent unusual circumstances, a federal court should not entertain a petition

for writ of habeas corpus, unless the petitioner has first satisfied the exhaustion

requirement articulated in 28 U.S.C. § 2254(b). The exhaustion requirement is

grounded on principles of comity to ensure that state courts have the initial

opportunity to review federal constitutional challenges to state convictions. See

Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000); Picard v. Connor, 404 U.S.

270, 275–76 (1971). The habeas statute codifies this principle by requiring that a

petitioner exhaust available remedies in state court, meaning a state prisoner must

16

“fairly present” his claims in “one complete round of the state’s established

appellate review process,” before bringing them in federal court. See 28 U.S.C. §

2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating

“[b]ecause the exhaustion doctrine is designed to give the state courts a full and

fair opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts, . . . state prisoners must give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established review process.”); see also Duncan v. Henry, 513

U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134

F.3d 506, 513 (3d Cir. 1997). This requires that the claim brought in federal court

be the substantial equivalent of that presented to the state courts. Picard, 404 U.S.

at 278; see also McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding

that petitioner must present both “factual and legal substance” of claim to state

courts). Mere reliance of state and federal claims on the same constitutional

provision does not render the two claims substantially equivalent. See Brown v.

Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir.

1976). Both the legal theory and the facts on which a federal claim rests must have

been presented to the state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d at

158–61.

17

Additionally, a federal habeas court “will not review a question of federal

law decided by a state court if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to support the judgment.

See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed.

158 (1935); Klinger v. Missouri, 13 Wall. 257, 263, 20 L.Ed. 635 (1872). This rule

applies whether the state law ground is substantive or procedural. See, e.g., Fox

Film, supra; Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530

(1935).” Coleman v. Thompson, 501 U.S. 722, 729 (1991), holding modified by

Martinez v. Ryan, 566 U.S. 1 (2012). The requirements of “independence” and

“adequacy” are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004).

State procedural grounds are not independent, and will not bar federal habeas

relief, if the state law ground is so “interwoven with federal law” that it cannot be

said to be independent of the merits of a petitioner’s federal claims. Coleman, 501

U.S. at 739-40. A state rule is “adequate” for procedural default purposes if it is

“firmly established and regularly followed.” Johnson v. Lee, ––– U.S. ––––, 136 S.

Ct. 1802, 1804, 195 L.Ed.2d 92 (2016) (per curiam) (citation omitted). These

requirements ensure that “federal review is not barred unless a habeas petitioner

had fair notice of the need to follow the state procedural rule,” and that “review is

foreclosed by what may honestly be called ‘rules’ ... of general applicability[,]

18

rather than by whim or prejudice against a claim or claimant.” Bronshtein v. Horn,

404 F.3d 700, 707-08 (3d Cir. 2005). “In the absence of the independent and

adequate state ground doctrine in federal habeas, habeas petitioners would be able

to avoid the exhaustion requirement by defaulting their federal claims in state

court. The independent and adequate state ground doctrine ensures that the States’

interest in correcting their own mistakes is respected in all federal habeas cases.”

Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

The failure to properly present claims to the state court generally results in a

procedural default. Lines v. Larkin, 208 F.3d 153, 150-60 (3d Cir. 2000). “When a

claim is not exhausted because it has not been ‘fairly presented’ to the state courts,

but state procedural rules bar the applicant from seeking further relief in state

courts, the exhaustion requirement is satisfied because there is ‘an absence of

available State corrective process.’ 28 U.S.C. § 2254(b). In such cases, however,

applicants are considered to have procedurally defaulted their claims and federal

courts may not consider the merits of such claims unless the applicant establishes

‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).” McCandless, 172 F.3d at 260.

To demonstrate “cause” for a procedural default, a petitioner must point to

19

some objective external factor which impeded his efforts to comply with the state’s

procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice”

will be satisfied only if he can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has

probably resulted in the conviction of one who is actually innocent,” Murray, 477

U.S. at 496, then a federal court can excuse the procedural default and review the

claim in order to prevent a fundamental miscarriage of justice. Edwards, 529 U.S.

at 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The

miscarriage of justice exception applies only in extraordinary cases, and actual

innocence means factual innocence, not legal insufficiency. Bousley v. United

States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner

establishes actual innocence by asserting “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” showing that no reasonable

juror would have voted to find the petitioner guilty beyond a reasonable doubt.

Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

20

1. Ground One

In his first ground, Buttolph alleges that trial counsel was ineffective in

failing to challenge his “rearrest” on the ground that it violated protections

afforded by the double jeopardy clause. (Doc. 1). He cites the district attorney’s

action in rearresting him “using evidence that was neither new nor undiscoverable

at the time of the dismissal of charges at the first preliminary hearing, and claims

that trial counsel was ineffective in failing to prepare, pursue, and present a double

jeopardy/illegal re-arrest motion which led to [his] guilty plea.” (Doc. 1, p. 6). He

asserts in his memorandum of law that he exhausted the claim during PCRA

proceedings. but qualifies this argument by stating:

Though double jeopardy was not specifically mentioned, Petitioner

alleged a Constitutional violation and further argued that he was re-

arrested for the same offense without new evidence. Petitioner also

cited Blackledge v. Perry, 417 US 21 (1974) and Comm.v. Moore, 749

A.2d 505 (2000) in support of his claim both of which deal with double

jeopardy. As such, this claim has been exhausted by citing state and

federal cases employing constitutional analysis, ‘assertion of the claim

so particular as to call to mind a specific right protected by the

Constitution’ and ‘allegation of a pattern of facts that is well within the

mainstream of constitutional litigation.’ McCandless, supra.”

(Doc. 4-11, p. 9 ). Respondents counter that the claim is procedurally defaulted

because Buttolph did not include it in either his PCRA petition or his “Motion to

Prove Merit to PCRA.” (Doc. 22, p. 3). Respondents also note that the Superior

Court made no reference to such a claim. (Id.).

21

In Buttolph’s brief in support of his appeal from the denial of PCRA relief

(Doc. 21-6), under the heading “Trial Counsel’s Ineffective Assistance of

Counsel”, there appear four questions for review: 1. Trial counsel’s failure to meet

with him for twenty-three months of pretrial incarceration; 2. Trial counsel’s

elicitation and publication of detrimental inculpatory testimony; 3. Trial counsel’s

failure to investigate witnesses and claims prior to trial, and 4. Trial counsel’s

violation of his due process rights based on the continuation of his case sixty-four

times. (Id. at p. 15). He does not reference double jeopardy or illegal rearrest.

Although he cites Blackledge v. Perry in subsection 10 (F) of his appellate brief, it

is simply a statement of law with no connection to the double jeopardy or illegal

rearrest argument he now raises. Specifically, at the conclusion of this argument

that trial counsel failed to investigate witnesses and “all reasonable lines of

defense,” as well as trial counsel’s failure to secure his pretrial release, he provides

the following: “Blackledge v. Perry, 384 US 436 [ ] (1974) Which goes to the very

power of the State to bring the defendant into Court to answer to the charges

brought against him. Appellant asserts he should never have been haled into court

to face felony charges at all. See Miranda v. Arizona, 384 U.S. 436 [ ] (1966).”

(Id. at 57-63).

As stated supra, the requirement that state courts must be given a full and

22

fair opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts, mandates that the claim brought in federal court be

the substantial equivalent of that presented to the state courts. Picard, 404 U.S. at

278; see McCandless, 172 F.3d at 261. Both the legal theory and the facts on

which a federal claim rests must have been presented to the state courts. See

Picard, 404 U.S. at 277; Brown, 669 F.2d at 158–61. Buttolph has failed to fairly

present the claim that counsel was ineffective in failing to challenge his arrest on

double jeopardy grounds to the state courts and state procedural rules bar him from

seeking further relief in state courts.

Although the exhaustion requirement is satisfied because there is an absence

of available State corrective process, the claim is procedurally defaulted and we

may not consider the merits unless Buttolph establishes cause and prejudice or a

fundamental miscarriage of justice to excuse the default. We have reviewed

Buttolph’s filings and he has failed to identify some objective external factor

which prevented him from complying with the state’s procedural rules in

presenting this claim and he does not demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. Nor is there any argument or indication that a “constitutional violation

has probably resulted in the conviction of one who is actually innocent,” Murray,

23

477 U.S. at 496. Federal review of the claim is foreclosed.

2. Ground Six

In his sixth ground, Buttolph alleges that the trial judge failed to inform him

of his post-guilty plea and post-sentence rights during the guilty plea colloquy.

Pennsylvania requires the following when challenging a guilty plea:

A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion

to withdraw the plea within ten days of sentencing. Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in

waiver. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n. 3

(Pa.Super.2006). Historically, Pennsylvania courts adhere to this

waiver principle because “[i]t is for the court which accepted the plea

to consider and correct, in the first instance, any error which may have

been committed.” Commonwealth v. Roberts, 237 Pa.Super. 336, 352

A.2d 140, 141 (1975) (holding that common and previously condoned

mistake of attacking guilty plea on direct appeal without first filing

petition to withdraw plea with trial court is procedural error resulting in

waiver; stating, “(t)he swift and orderly administration of criminal

justice requires that lower courts be given the opportunity to rectify

their errors before they are considered on appeal”; “Strict adherence to

this procedure could, indeed, preclude an otherwise costly, time

consuming, and unnecessary appeal to this court”).

Likewise:

Normally, issues not preserved in the trial court may not be

pursued before this Court. Pa.R.A.P. 302(a). For example, a

request to withdraw a guilty plea on the grounds that it was

involuntary is one of the claims that must be raised by motion in

the trial court in order to be reviewed on direct appeal. Similarly,

challenges to a court’s sentencing discretion must be raised during

sentencing or in a post-sentence motion in order for this Court to

consider granting allowance of appeal. Moreover, for any claim

24

that was required to be preserved, this Court cannot review a legal

theory in support of that claim unless that particular legal theory

was presented to the trial court. Thus, even if an appellant did seek

to withdraw pleas or to attack the discretionary aspects of

sentencing in the trial court, the appellant cannot support those

claims in this Court by advancing legal arguments different than

the ones that were made when the claims were preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008), appeal

denied, 601 Pa. 696, 972 A.2d 521 (2009).

Further, a defendant who attempts to withdraw a guilty plea after

sentencing must demonstrate prejudice on the order of manifest

injustice before withdrawal is justified. Commonwealth v. Muhammad,

794 A.2d 378, 383 (Pa.Super.2002). “A plea rises to the level of

manifest injustice when it was entered into involuntarily, unknowingly,

or unintelligently.” Id…

Instantly, Appellant cannot obtain review of his claim on direct appeal

because he failed to preserve it properly by either objecting during the

plea colloquy or filing a post-sentence motion to withdraw the plea. See

Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, we decline to review

Appellant’s challenge to the validity of his plea.

Com. v. Lincoln, 2013 PA Super 177, 72 A.3d 606, 609–11 (2013), opinion after

reinstatement of appeal, 179 A.3d 573 (Pa. Super. Ct. 2017), for text, see

Commonwealth v. Lincoln, No. 3632 EDA 2003, 2017 WL 4679656 (Pa. Super.

Ct. Oct. 18, 2017). Waiver applies even in cases, as here, where the petitioner

never obtained any direct appellate review of his conviction or sentence. See

Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203, 1207-08 (1992).

Where there is a waiver in state court, federal habeas relief is barred. See, e.g.,

25

Jones v. Lavan, 2002 WL 31761423, at *2-3 (E.D.Pa. Dec.9, 2002). Because

Buttolph failed to raise the issue that the trial judge erred in not informing him of

his post-guilty plea and post-sentence rights during the guilty plea colloquy in the

trial court post-guilty plea, or on direct appeal, he is precluded from raising the

issue in federal habeas proceedings.

Although the exhaustion requirement is satisfied because there is an absence

of available State corrective process, the claim is procedurally defaulted. Buttolph

fails to identify some objective external factor which prevented him from

complying with the state’s procedural rules in presenting this claim and he does not

demonstrate that the outcome of the state proceeding was “unreliable or

fundamentally unfair” as a result of a violation of federal law. And there is no

indication that a “constitutional violation has probably resulted in the conviction of

one who is actually innocent,” Murray, 477 U.S. at 496. In fact, review of the

guilty plea colloquy reveals that the trial judge advised Buttolph “[y]ou and your

attorney would have 10 days from today’s date to file any Post Sentence Motions.

If you don’t file any Post Sentence Motions, you will have 30 days from today to

file an Appeal to the Superior Court. But if you do file a Post Sentence Motion,

you will have 30 days from when that Post Sentence Motion is decided in order to

file your appeal to the Superior Court. Do you understand that?” (Doc. 21-2, pp.

26

19, 20). Buttolph responded “Yes, sir.” (Id. at 20). The trial court also advised

him that if he chose to pursue PCRA relief, he would have the right to court-

appointed counsel. (Id.). There is no grounds on which to excuse the procedural

default. We are precluded from considering this claim.

C. Adjudication of Claims on the Merits

Remaining for disposition are two ineffective of counsel claims raised in the

Ground Five, both of which were adjudicated on the merits during the PCRA

proceedings. “In considering a § 2254 petition, we review the ‘last reasoned

decision’ of the state courts on the petitioner’s claims.” Simmons v. Beard, 590

F.3d 223, 231–32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256, 289–90 (3d

Cir. 2008) ). Thus, “[w]e review the appellate court decision, not the trial court

decision, as long as the appellate court ‘issued a judgment, with explanation,

binding on the parties before it.’ ” Burnside v. Wenerowicz, 525 F. App’x 135, 138

(3d Cir. 2013). However, when the highest state court that considered the claim

does not issue a reasoned opinion, we “look through” that decision to the last

reasoned opinion of the state courts, and we apply a rebuttable presumption that

the higher court adopted the same reasoning as that set forth by the lower court.

Wilson v. Sellers, — U.S. —, 138 S. Ct. 1188, 1192 (2018).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief

27

functions as a guard against extreme malfunctions in the state criminal justice

systems, and not as a means of error correction,” Greene v. Fisher, 565 U.S. 34, 38

(2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and

highly deferential standard . . . which demands that state-court decisions be given

the benefit of the doubt.” Cullen, 563 U.S. at 181(internal quotation marks and

citation omitted). The burden is on Buttolph to prove entitlement to the writ. Id.

A decision is “contrary to” federal law if “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases” 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.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

“[A] state court decision reflects an ‘unreasonable application of such law’

only ‘where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents,’ a standard the

Supreme Court has advised is ‘difficult to meet’ because it was ‘meant to be.’

[Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As the Supreme Court

has cautioned, an ‘unreasonable application of federal law is different from an

incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct. 770

(quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and whether we ‘conclude[ ]

28

in [our] independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly’ is irrelevant, as AEDPA sets a

higher bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.” Mathias v. Superintendent

Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017). A 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 to the state court.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

We now turn to the merits of Buttolph’s claim that trial counsel provided

ineffective assistance during the guilty plea process. The clearly established

ineffective assistance of counsel standard as determined by the Supreme Court of

the United States is as follows:

Ineffective assistance of counsel claims are “governed by the

familiar two-prong test set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464

F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510,

521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA purposes,

the Strickland test qualifies as “clearly established Federal law, as

29

determined by the Supreme Court.” Williams, 529 U.S. at 391, 120

S.Ct. 1495. Under Strickland, a habeas petitioner must demonstrate

that: (1) counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for

counsel’s error, the result would have been different. 466 U.S. at 687,

104 S.Ct. 2052. For the deficient performance prong, “[t]he proper

measure of attorney performance remains simply reasonableness under

prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This review

is deferential:

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the evaluation, a

court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally

unreasonable, ... warrant[s] setting aside the judgment of a

criminal proceeding.” Id. at 691, 104 S.Ct. 2052. “Even if a

defendant shows that particular errors of counsel were

unreasonable, ... the defendant must show that they actually had

an adverse effect on the defense”; in other words, the habeas

petitioner must show that he was prejudiced by counsel’s deficient

performance. Id. at 693, 104 S.Ct. 2052. To establish prejudice,

“[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”

Id. at 694, 104 S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the

ultimate focus of inquiry must be on the fundamental fairness of the

proceeding.... In every case the court should be concerned with whether

... the result of the particular proceeding is unreliable because of a

30

breakdown in the adversarial process that our system counts on to

produce just results.” Id. at 696, 104 S.Ct. 2052.

Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010).

When the state court has decided the claim on the merits, “[t]he question ‘is

not whether a federal court believes the state court’s determination’ under the

Strickland standard ‘was incorrect but whether that determination was

unreasonable—a substantially higher threshold.’ ” Knowles v. Mirzayance, 556

U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

“And, because the Strickland standard is a general standard, a state court has even

more latitude to reasonably determine that a defendant has not satisfied that

standard.” Id.

The Superior Court set forth the following ineffective assistance of counsel

standards of review:

It is well-established that counsel is presumed to have provided

effective representation unless the PCRA petitioner pleads and

proves all of the following: (1) the underlying legal claim is of

arguable merit; (2) counsel’s action or inaction lacked any

objectively reasonable basis designed to effectuate his client's

interest; and (3) prejudice, to the effect that there was a reasonable

probability of a different outcome if not for counsel’s error.

The PCRA court may deny an ineffectiveness claim if the petitioner's

evidence fails to meet a single one of these prongs. Moreover, a PCRA

petitioner bears the burden of demonstrating counsel's ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

31

Commonwealth v. Buttolph, 2017 WL 1476315, at *4–5. The Third Circuit has

previously held that the very ineffectiveness assistance of counsel test relied upon

by the Superior Court is not contrary to the Supreme Court’s Strickland standard.

See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).

1. Grounds Five (2) and (4)

Buttolph’s argument concerning the ineffective assistance of counsel during

the guilty plea colloquy process is two-fold. He first argues that counsel was

ineffective in failing to explain all elements of the offense of third-degree murder

insisting that he “was never informed as to what ‘malice’ entails related to a third-

degree murder charge. Therefore, the plea cannot be considered knowingly and

voluntarily entered if [he] was not informed of the nature of the charges and any

conclusion reached by the state courts which does not concur with this analysis is

contrary to or involves an unreasonable application of Mabry v. Johnson, 467 US

504 [ ] (1984) and McCarthy v. United States, 394 US 459 [ ] (1969).” (Doc. 4-11,

p. 19). He next asserts that the plea colloquy was defective for a multitude of

reasons, including that he was never informed of the factual basis of the plea, and

that counsel was ineffective in failing to object to the trial court’s deficient plea

colloquy. (Id. at p. 22). The claims raised here essentially mirror those raised in

the PCRA appellate proceedings. Commonwealth v. Buttolph, 2017 WL 1476315,

32

at *5.

In evaluating trial counsel’s effectiveness, the Superior Court focused on

whether the underlying claim, the validity of the guilty plea, had arguable merit.

The test for determining the validity of a guilty plea is “whether the plea represents

a voluntary and intelligent choice among the alternative courses of action open to

the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). A guilty plea

may be constitutionally infirm if a defendant failed to understand the constitutional

rights he was waiving by pleading guilty or had an incomplete understanding of the

charges lodged against him. Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976).

See also Boykin v. Alabama, 395 U.S. 238, 242 (1969) (noting that plea must be

made with “sufficient awareness of the relevant circumstances and likely

consequences”). Significantly, “the representations of the defendant, his lawyer,

and the prosecutor at [a plea] hearing, as well as any findings made by the judge

accepting the plea, constitute a formidable barrier in any subsequent collateral

proceedings. Solemn declarations made in open court carry a strong presumption

of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).

Initially, the Superior Court noted that “[c]entral to the question of whether

[a] defendant’s plea was entered voluntarily and knowingly is the fact that the

defendant know and understand the nature of the offenses charged in as plain a

33

fashion as possible…. [A] guilty plea is not a ceremony of innocence, it is an

occasion where one offers a confession of guilt. Thus…a trial judge [and by

extension, plea counsel] is not required to go to unnecessary lengths to discuss

every nuance of the law regarding a defendant’s waiver of his right to a jury trial in

order to render a guilty plea voluntary and knowing. Barndt, 74 A.3d at 192-93

(Pa. Super. 2013)(citations and quotation marks omitted).” Id. The court then

recited the following standards of review:

In considering whether a guilty plea colloquy is defective, we bear in

mind the following.

The Pennsylvania Rules of Criminal Procedure mandate pleas be

taken in open court and require the court to conduct an on-the-

record colloquy to ascertain whether a defendant is aware of his

rights and the consequences of his plea. Under Rule 590, the court

should confirm, inter alia, that a defendant understands: (1) the

nature of the charges to which he is pleading guilty; (2) the factual

basis for the plea; (3) he is giving up his right to trial by jury; (4)

and the presumption of innocence; (5) he is aware of the

permissible ranges of sentences and fines possible; and (6) the

court is not bound by the terms of the agreement unless the court

accepts the plea. The reviewing [c]ourt will evaluate the adequacy

of the plea colloquy and the voluntariness of the resulting plea by

examining the totality of the circumstances surrounding the entry

of that plea. Pennsylvania law presumes a defendant who entered

a guilty plea was aware of what he was doing, and the defendant

bears the burden of proving otherwise.

Commonwealth v. Kpou, 153 A.3d 1020, 1023–24 (Pa. Super. 2016)

(internal citations and quotation marks omitted). “[A] defendant is

bound by the statements which he makes during his plea colloquy.”

Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996)

34

(citations omitted). As such, a defendant may not assert grounds for

withdrawing the plea that contradict statements made when he entered

the plea. Id. (citation omitted).

Commonwealth v. Buttolph, 2017 WL 1476315, at *5–6. These standards of

review wholly comport with the Supreme Court standards.

The Superior Court quoted the plea colloquy transcript and conducted an in

depth analysis of the colloquy:

The trial court asked the following questions, in relevant part, about the

nature of the charges and the factual basis of his plea.

THE COURT: Do you understand the nature of the charges to which

you are pleading guilty?

[Appellant:] Yes, sir.

THE COURT: Do you understand the factual basis to which you are

pleading guilty?

[Appellant:] Yes, sir.

THE COURT: And do you understand that the crux of that factual basis

is that on May 2nd, or into May 3rd, of 1992, that you killed a Donald

V. Gosline at an adult book store? [ ]

[Appellant:] Yes, sir.

* * *

THE COURT: Is there any reason you would not understand what

you're doing today?

[Appellant:] No, sir.

35

THE COURT: Okay. And by entering this guilty plea, are you

admitting to the killing of Donald Gosline?

[Appellant:] Yes, sir.

N.T., 5/1/2014, at 7, 10 (unnecessary capitalization omitted).

Trial counsel then took great pains to ensure Appellant understood the

consequences of what he was doing.

[ATTORNEY RUSSO:] With respect to the voluntariness of

[Appellant's] plea, I did want the court to be aware—and I believe

[Appellant] would confirm this—that, not only over the last two days

personally but also by telephone, he has discussed the plea offers with

myself; with our investigator, Skip Gochenour, who is present in the

court with us today; and as well to my partner, Joseph Sembrot, who

handled most of the appellate work with respect to the issue that I had

just briefly discussed with the Court; as well as to Joshua Lock, who is

of counsel to our firm.

I can't articulate the hours that were spent discussing the various issues

attendant to the plea; but [Appellant], over the past week to two weeks,

has had the benefit of the counsel of each of us.

I would also state—and I believe he would confirm this as well—he has

also discussed the plea offer with his family, his mother and his father,

both of whom are en route from Texas now to Pennsylvania. They were

anticipating arriving over the weekend to be here for trial. But I know

that he has had the benefit of speaking to both of his parents before this

afternoon's proceeding. And I just wanted the Court to be aware of those

aspects of the plea as well.

THE COURT: [Appellant], do you have any questions?

[Appellant:] No, sir.

THE COURT: Are you satisfied that your plea is knowing, intelligent,

and voluntary?

36

[Appellant:] Yes, sir.

N.T., 5/1/2014, at 12–14 (unnecessary capitalization omitted). [n.8 In

addition to this oral colloquy, Appellant initialed, signed, and dated a

written guilty plea colloquy which was made part of the certified

record. See Plea Agreement, 5/6/2014. In that colloquy, Appellant

acknowledged, inter alia, that he understood the nature of the charges

against him and had discussed the elements of the crimes with his

attorney.].

“Our Supreme Court has repeatedly stressed that where the totality of

the circumstances establishes that a defendant was aware of the nature

of the charges, the plea court's failure to delineate the elements of the

crimes at the oral colloquy, standing alone, will not invalidate an

otherwise knowing and voluntary guilty plea.” Commonwealth v.

Morrison, 878 A.2d 102, 107 (Pa. Super. 2005). “Whether notice [of

the nature of the charges] has been adequately imparted may be

determined from the totality of the circumstances attendant upon the

plea[.]” Id.

Instantly, Appellant’s argument that trial counsel should have objected

to the guilty plea colloquy as being insufficient is wholly unsupported

by the record. Appellant’s knowledge of and participation in this

litigation is extensive, going back to his first arrest in 1995. After

Appellant was arrested for a second time in 2009, he participated in a

preliminary hearing and litigated extensively a motion to suppress prior

to the entry of his guilty plea in 2014. Moreover, at the time he entered

into the guilty plea, Appellant had already picked his jury and trial was

scheduled to commence imminently. For Appellant to claim now that

he was unaware in any respect of either the nature of the charges against

him or of the elements of third-degree murder is simply incredible.

Accordingly, we hold Attorney Russo was not ineffective by failing to

object during Appellant’s guilty plea colloquy. Thus, Appellant has not

demonstrated counsel’s actions or inactions resulted in his entering a

guilty plea unknowingly or involuntarily.

Commonwealth v. Buttolph, 2017 WL 1476315, at *5–7.

37

During the plea hearing, the trial court recited the permissible ranges of his

sentence, highlighted the relinquishment of various constitutional rights and

challenges on appeal, confirmed that he was satisfied with counsel’s

representation, discussed, in depth, the contents of the written plea agreement and

the fact that he executed the agreement with full understanding and answered every

question truthfully and honestly, and affirmed that there was no reason that he

would not understand the proceedings. The Superior Court thoroughly reviewed

the guilty plea hearing transcript during which Buttolph conceded that the crux of

the factual basis of the third-degree murder to which he was pleading guilty was

“that on May 2nd, or into May 3rd, of 1992, that [he] killed a Donald V. Gosline

at an adult book store[]” in Perry County at the corners of Routes 11 and 15 and

104, and admitted to the killing of Donald V. Gosline at that date, time and place

identified. (Doc. 21-22, pp. 7, 8, 10). The court also noted that he initialed,

signed, and dated a written guilty plea colloquy which was made part of the

certified record in which he acknowledged, inter alia, that he understood the nature

of the charges against him and had discussed the elements of the crimes with his

attorney. In considering the “totality of the circumstances,” the court found that

Buttolph’s knowledge of, and participation in, the criminal proceedings to be

“extensive” and for him to claim he “was unaware in any respect of the charges

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against him or the elements of the third-degree murders is simply incredible.”

Commonwealth v. Buttolph, 2017 WL 1476315, at 7. The Superior Court’s finding

that Buttolph failed to demonstrate that counsel’s actions or inactions resulted in

him entering an unknowing, unintelligent, and involuntary plea of guilty to third-

degree murder, is a reasonable application of clearly established federal law.

Buttolph also argues that the Superior Court’s decision is an unreasonable

determination of the facts. Whether a guilty plea is voluntary for purposes of the

United States Constitution is a question of federal law, but the determination of the

historical facts surrounding the plea is subject to the deferential “presumption of

correctness” found in Title 28 U.S.C. § 2254(d). Marshall v. Lonberger, 459 U.S.

422, 431(1983); see also Zilich, 36 F.3d at 320. A habeas petitioner challenging the

knowing and voluntary nature of his or her guilty plea faces a heavy burden. Zilich

v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).

Review of the guilty plea hearing transcript reveals that the Superior Court

accurately depicted what transpired during the guilty plea hearing. Buttolph

indicated that he understood the nature of the charges against him and

unequivocally admitted to the killing of Donald V. Gosline. (Doc. 21-2, pp. 7, 8,

10). He confirmed that the understood that on direct appeal he was only able to

challenge the voluntariness of the guilty plea, the jurisdiction of the court, and the

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legality of his sentence. (Id. at 10). Buttolph indicated that he was satisfied that

his plea was knowing, intelligent, and voluntary. (Id. at pp. 13, 14). After

imposing sentence, the court advised him that he had ten days to file any post-

sentence motions, thirty days to file an appeal and one year from completion of an

appeal to file a PCRA petition. (Id. at 19, 20). He then confirmed that no other

promises had been made to him.

Trial counsel took additional steps during the colloquy. He placed on the

record a supplemental agreement that the state would not oppose Buttolph’s parole

eligibility upon reaching his mandatory minimum sentence. (Doc. 21-2, pp. 5, 6).

He clarified on the record that Buttolph understood that he was waiving the right to

continue his challenge to a heavily litigated suppression motion concerning the

testimony of his ex-wife, and all factual challenges unrelated to the guilty plea. He

reiterated that Buttolph understood that appellate review was limited to the

voluntariness of his guilty plea, the jurisdiction of the court and the legality of the

sentence. (Id. at 11, 12). He also noted on the record that there were hours spent

discussing “various issues attendant to the plea” and that Buttolph had the benefit

of his counsel as well as the advice of a second attorney from trial counsel’s firm.

(Id. at 12, 13). Counsel also noted that Buttolph fully discussed the plea offer with

his parents. (Id. at 13).

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Further, the plea hearing colloquy fully aligns with the written plea

agreement and colloquy, which was made part of the record. Therein, Buttolph

agreed to enter a plea of guilty to third-degree murder, agreed that the information

in the Affidavit of Probable Cause was true and correct, indicated that he

understood the nature of the charges to which he was pleading guilty and,

significantly, waived a recitation of the factual basis for the charges against him.

(Doc. 31-13, 1-5). He affirmed that he understood that by pleading guilty he was

giving up various constitutional rights such as the right to a jury trial, the right to

the presumption of innocence, the right to cross-examine all Commonwealth

witnesses, the right to present evidence, and the right to file pretrial motions. (Id. at

3). He fully responded to every question on the form, placed his initials on each

page, and affixed his signature to the last page. (Id. at 1-5).

Buttolph wholly fails to rebut the presumption of correctness of the facts

garnered during the guilty plea proceedings with clear and convincing evidence.

The Superior Court’s decision is objectively reasonable in light of the evidence in

state court and reflects a reasonable determination of the facts.

Based on the above, we conclude that the state court’s determination that

Buttolph failed to demonstrate that counsel’s actions or inactions resulted in his

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entering a guilty plea unknowingly or involuntarily was neither contrary to, nor an

unreasonable application of, clearly established federal law as determined by the

Supreme Court. Nor did it result in an unreasonable determination of the facts in

light of the testimony elicited during the plea colloquy hearing and the written plea

colloquy and agreement.

IV. CERTIFICATE OF APPEALABILTY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order

in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant

has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. 322. Buttolph fails to

demonstrate that a COA should issue.

The denial of a certificate of appealability does not prevent him from

appealing the order denying his petition so long as he seeks, and obtains, a

certificate of appealability from the Third Circuit Court of Appeals. See FED. R.

APP. P. 22(b)(1).

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V. CONCLUSION

For the reasons set forth above, the petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 will be denied.

A separate Order shall issue.

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