CHISOM v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONDRE M. CHISOM, :

Petitioner :

: No. 1:21-cv-773

v. :

: (Judge Rambo)

BARRY SMITH, et al., :

Respondents :

MEMORANDUM

On March 29, 2021, pro se Petitioner Dondre M. Chisom (“Petitioner”), who

is presently incarcerated at the State Correctional Institution in Houtzdale,

Pennsylvania (“SCI Houtzdale”), initiated the above-captioned action by filing a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States

District Court for the Eastern District of Pennsylvania. (Doc. No. 1.) In an Order

dated April 20, 2021, that court transferred the matter to this Court for further

proceedings. (Doc. No. 3.) Following an Order to show cause (Doc. No. 8),

Respondents filed their response on June 3, 2020 (Doc. No. 9). After receiving an

extension of time to do so (Doc. Nos. 10, 11), Petitioner filed his traverse on July 6,

2021 (Doc. No. 12). Accordingly, Petitioner’s § 2254 petition is ripe for disposition.

I. BACKGROUND

A. Procedural History

On June 19, 2017, in the Court of Common Pleas for Dauphin County,

Pennsylvania, Petitioner pled guilty to third-degree murder and prohibited

possession of a firearm and was sentenced to an aggregate sentence of 25-50 years’

incarceration. See Commonwealth v. Chisom, Docket No. CP-22-CR-0005714-2015

(Dauphin Cty. C.C.P.). 1 The Superior Court of Pennsylvania set forth the

background of the case as follows:

On the night of July 2, 2015, a verbal altercation between [Petitioner]

and 34 year-old Christopher Williams, who allegedly cut to the front of

a convenience store checkout line, culminated with [Petitioner]

shooting Williams to death in claimed self defense. Charged with

criminal homicide, persons not to possess firearms, and related

offenses, [Petitioner] entered a counseled negotiated guilty plea to

third-degree murder and persons not to possess firearms in exchange

for an agreed-upon sentence of 25 to 50 years’ incarceration and

payment of fines totaling $75,000.00. On June 19, 2017, the trial court

imposed an aggregate sentence in accordance with the plea agreement.

Commonwealth v. Chisom, No. 915 MDA 2020, 2021 WL 672920, at *1 (Pa. Super.

Ct. Feb. 22, 2021). Petitioner did not file post-trial motions or a direct appeal. Id.

Between sentencing and when Petitioner filed a pro se Post Conviction Relief

Act (“PCRA”) petition, Petitioner and counsel “each filed several pertinent motions

or correspondences with the trial court, as well as with one another.” Id. In his

correspondence with the trial court and counsel, Petitioner expressed confusion as

to why counsel had not filed post-sentence motions or an appeal like he had

requested. Id. On December 14, 2017, Petitioner subsequently filed a pro se motion

1 In addition to the § 2254 petition, the Court utilized the Unified Judicial System of Pennsylvania

Web Portal to review the relevant dockets for Petitioner’s criminal proceedings. A district court

may take judicial notice of state court records, as well as its own. See Minney v. Winstead, No.

2:12-cv-1732, 2013 WL 3279793, at *2 (W.D. Pa. June 27, 2013); see also Reynolds v.

Ellingsworth, 843 F.2d 712, 714 n.1 (3d Cir. 1988).

to modify and reduce sentence, alleging “ineffective assistance of plea counsel for

failing to file both pre-sentence and post-sentence motions” and asserting that “his

plea had been coerced.” Id.

On December 28, 207, Petitioner filed a pro se PCRA petition, asserting that:

(1) counsel failed to file post-conviction motions on his behalf; (2) counsel coerced

him to plead guilty; (3) counsel didn’t raise mitigating factors regarding the brain

surgery Petitioner had three (3) weeks prior to the homicide; and (4) newly

discovered evidence in the form of a video became available after trial and would

have changed the outcome had it been introduced. (Doc. No. 9-2 at 1-9.) Petitioner

also requested that his appellate rights be reinstated. (Id. at 4.) Counsel was

appointed to represent Petitioner, and on January 23, 2020, counsel filed a motion to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), alleging that there was

no merit to Petitioner’s PCRA petition. (Doc. No. 9-2 at 55-69.) On April 22, 2020,

the PCRA court granted counsel’s motion to withdraw and issued a notice that it

intended to dismiss Petitioner’s PCRA petition. (Id. at 70-75.) Petitioner filed a

response, in which he requested an evidentiary hearing, on June 10, 2020. (Id. at

76-80.) On June 10, 2020, the PCRA court dismissed Petitioner’s PCRA petition

for the reasons set forth in its notice of intent to dismiss. (Id. at 81.)

Petitioner timely appealed to the Superior Court, arguing that (1) the PCRA

court erred in determining that trial counsel was not ineffective and (2) that the state

and federal courts actions in similar cases “have created a precedent that the State

Courts should follow in ineffective assistance of counsel claims.” Chisom, 2021 WL

672920, at *3. On February 22, 2021, the Superior Court affirmed the dismissal of

Petitioner’s PCRA petition. Id. at *4. Petitioner did not file a petition for allowance

of appeal with the Supreme Court of Pennsylvania.

B. Habeas Claims Presented

Petitioner raises the following claims for relief in his § 2254 petition:

1. Trial counsel was ineffective for allowing Petitioner to accept an

induced plea agreement after new evidence was produced;

2. Trial counsel was ineffective for allowing Petitioner to plea to an

illegally prescribed sentence; and

3. Trial counsel was ineffective for not filing a post-sentence motion.

(Doc. No. 1 at 19-24.)

II. STANDARD OF REVIEW

Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran, 247

F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146

(1998)). The exercise of restraint by a federal court in reviewing and granting habeas

relief is appropriate due to considerations of comity and federalism. See Engle v.

Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining

and enforcing the criminal law. In criminal trials they also hold the initial

responsibility for vindicating constitutional rights. Federal intrusions into state

criminal trials frustrate both the States’ sovereign power and their good-faith

attempts to honor constitutional law.” Id. States also have a recognized interest in

the finality of convictions that have survived direct review within the state court

system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation of

the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:

the adjudication of the claim – (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established [f]ederal 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.

Id. § 2254(d).

For claims of ineffective assistance of counsel raised in a habeas petition, the

Court must consider the two components to demonstrating a violation of the right to

effective assistance of counsel as set forth by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel’s

performance was deficient. This requires showing that “counsel’s representation fell

below an objective standard of reasonableness.” See id. at 688; see also Williams v.

Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the petitioner must

show that he was prejudiced by the deficient performance. “This requires showing

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. To establish prejudice, the

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.” See id. at 694. The Strickland test is conjunctive and a habeas petitioner

must establish both the deficiency in the performance prong and the prejudice

prong. See Strickland, 466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d

Cir. 1987). As a result, if a petitioner fails on either prong, he loses. See Holladay

v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must

be satisfied in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice prong, or

vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.

1999) (“This court may address the performance and prejudice components in any

order, but need not address both if Mr. Foster fails to make a sufficient showing of

one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly

established Federal law’” for purposes of the AEDPA. See Rainey v. Varner, 603

F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).

Therefore, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness

claims that have been adjudicated on the merits is whether the state court’s decision

involved an unreasonable application of Strickland or are based on an unreasonable

determination of the facts. See Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005).

Moreover, Pennsylvania’s three-pronged test for ineffective assistance claims, see

Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not

contrary to Strickland, see Jacobs, 395 F.3d at 107 n.9.

III. DISCUSSION

A. Exhaustion and Procedural Default

The Court must first determine whether Petitioner’s grounds for relief

presented in his § 2254 petition have been exhausted in the state courts and, if not,

whether circumstances exist to excuse Petitioner’s procedural default of his claims.

Respondents maintain that Ground Two is procedurally defaulted. (Doc. No. 9 at

5.)

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

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

requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will

not be deemed to have exhausted his available state remedies if he had the right

under the law of the state to raise, by any available procedure, the question presented.

See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A petitioner may exhaust a federal

claim either by raising it on direct appeal or presenting it in post-conviction PCRA

proceedings. See id. at 845. In addition, a claim is exhausted when it has been

“fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275 (1971).

To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1997). The petition must do so “in a manner that puts [the respondents] on notice

that a federal claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725

(3d Cir. 2005). “The Supreme Court has instructed that a claim is not ‘fairly

presented’ if the state court ‘must read beyond a petition or brief . . . in order to find

material’ that indicates the presence of a federal claim.” Collins v. Sec’y of Pa. Dep’t

of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27,

32 (2004)). Moreover, a habeas corpus petitioner has the burden of proving the

exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the

exhaustion requirement advances the goals of comity and federalism while reducing

“piecemeal litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).

“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.” McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar

are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d

153, 159 (3d Cir. 2000). The district court then analyzes the claims under the

procedural default doctrine. See id. The purpose of this rule is to prevent habeas

petitioners from avoiding the exhaustion doctrine by defaulting their claims in state

court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556

U.S. 449 (2009), the United States Supreme Court explained:

It is well established that federal courts will not review questions of

federal law presented in a habeas petition when the state court’s

decision rests upon a state law ground that is independent of the federal

question and adequate to support the judgment. In the context of federal

habeas proceedings, the independent and adequate state ground

doctrine is designed to ensure that the State’s interest in correcting their

own mistakes is respected in all federal habeas cases. When a petitioner

fails to properly raise his federal claims in state court, he deprives the

State of an opportunity to address those claims in the first instance and

frustrates the State’s ability to honor his constitutional rights.

Therefore, consistent with the longstanding requirement that habeas

petitioners must exhaust available state remedies before seeking relief

in federal court, we have held that when a petitioner fails to raise his

federal claims in compliance with relevant state procedural rules, the

state court’s refusal to adjudicate the claim ordinarily qualifies as an

independent and adequate state ground for denying federal review.

Id. at 465 (internal quotations and citations omitted).

However, habeas corpus review is not barred in every instance in which a state

court invokes a procedural rule to preclude its review of the federal claims asserted

by a state prisoner. A state procedural rule can preclude federal habeas corpus

review “only when the state rule is ‘independent of the federal question [presented]

and adequate to support the judgment.’” See Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). The

requirements of independence and adequacy are distinct. See id. A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a]

state procedural ground 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.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir.

2004). A rule is “adequate” if it was “firmly established, readily ascertainable, and

regularly followed at the time of the purported default.” See Levya, 504 F.3d at 366

(quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).

A petitioner whose constitutional claims have not been addressed on the

merits due to procedural default can overcome the default, thereby allowing federal

court review, if the petitioner can demonstrate either: (1) “cause” for the default and

“actual prejudice” as a result of the alleged violation of federal law; or (2) that the

failure to consider the claims will result in a “fundamental miscarriage of justice.”

See Coleman, 501 U.S. at 750. In order to show “cause and prejudice” sufficient to

overcome a state court default, a petitioner must demonstrate the “cause” for his

default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178, 192

(3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of

cause for a procedural default must ordinarily turn on whether the prisoner can show

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

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

(1986). Under the “prejudice prong,” a petitioner has the burden of showing “not

merely that the errors at his 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.” See United States v. Frady, 456 U.S. 152, 170 (1982);

see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).

To show a “fundamental miscarriage of justice,” a petitioner must establish

that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating

actual innocence requires a stronger showing than that needed to establish prejudice.

See id. In Goldblum v. Klem, 510 F.3d 204 (3d Cir. 2007), the United States Court

of Appeals for the Third Circuit explained the applicable two-step inquiry as follows.

First, a “court must decide ‘whether the petitioner has presented new reliable

evidence . . . not presented at trial,’” and second, if a petitioner “puts forth new

evidence not considered by the jury, a court asks ‘whether it is more likely than not

that no reasonable juror would have convicted him in light of the new evidence.’”

See id. at 225 (citing Hummard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)). If a

petitioner can meet this standard by establishing “cause and prejudice” or a

“fundamental miscarriage of justice,” his default will be excused, and the Court may

review the merits of the claim presented. See id.

In Ground Two, Petitioner avers that counsel was ineffective for allowing him

to “plea to an illegally prescribe[d] sentence.” (Doc. No. 1 at 22.) Petitioner vaguely

suggests that “when a finding of fact alters the legally prescribed punishment so as

to aggregate it, that finding is a[n] element which must be incorporated in the

Petitioner’s complaint/information or indictment.” (Id. at 22.) In the instant case,

the record is clear that Petitioner never presented this claim to the state courts.

Moreover, Petitioner cannot return to state court to file a PCRA petition raising this

ground because the PCRA’s statute of limitations has expired. See 42 Pa. Cons. Stat.

§ 9545(b) (noting that a PCRA petition must “be filed within one year of the date

the judgment becomes final” and that “a judgment becomes final at the conclusion

of direct review”).2 Thus, because Ground Two was not raised in the state courts

and Petitioner can no longer return to state court to present it, Ground Two is

procedurally defaulted. Petitioner advances no compelling argument to establish

cause and prejudice for his failure to raise Ground Two before the state courts.

2 While § 9545 sets forth limited exceptions to this rule, none is applicable to Petitioner’s claim.

Petitioner does not make any allegations that the Government in any way interfered with his ability

to file a PCRA petition or with his direct appeal, and he does not rely on a constitutional right

newly recognized by the United States Supreme Court or the Supreme Court of Pennsylvania. See

42 Pa. Cons. Stat. § 9545(b)(1)(i), (iii). Petitioner also does not allege that he could not have

discovered the basis of this claim through the exercise of due diligence. See id. § 9545(b)(1)(ii).

Moreover, Petitioner does not assert that a fundamental miscarriage of justice will

occur if this Court does not consider his claim. See Coleman, 501 U.S. at 750.

Accordingly, federal review of Ground Two is barred, and the Court will dismiss

that claim for relief.3

B. Merits of Petitioner’s Remaining Claims

As his first and third grounds for relief, Petitioner asserts that trial counsel

was ineffective for allowing him to accept an “induced plea agreement after new

evidence was produced” and for not filing a post-sentence motion. (Doc. No. 1 at

19-23.) With respect to these claims, the Superior Court stated:

In this case, the PCRA court dismissed [Petitioner’s] petition without a

hearing. There is no absolute right to an evidentiary hearing. See

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to

determine whether the PCRA court erred in concluding that there were

no genuine issues of material fact and in denying relief without an

evidentiary hearing.” Id.

[Petitioner’s] pro se petition essentially requested nunc pro tunc

reinstatement of his right to file post-sentence motions, which, if

necessary, would have the effect of preserving his right to file a direct

appeal challenging a denial of said motions. Specifically, the petition

alleged, inter alia, that plea counsel was ineffective for failing to file

requested “post-conviction motions” in a timely manner. The PCRA

court, the Commonwealth, and appointed PCRA counsel all construed

[Petitioner’s] claim to confine itself solely to counsel’s failure to file a

requested post-sentence motion.

3 In any event, Petitioner fails to expand upon his argument as to how counsel was ineffective for

allowing him to plead to an illegal sentence. He provides no further explanation as to why he is

entitled to relief on this claim. Such vague and conclusory grounds for relief are subject to

summary dismissal. See United States v. Thomas, 221 F.3d 430, 438 (3d Cir. 2000).

Because we discern from the record that [Petitioner’s] claim is so

confined,[] we agreement with their consensus that [Petitioner] failed

in his obligation to demonstrate his petition raised a genuine issue of

material fact that required an evidentiary hearing. That is to say, unlike

the instance where counsel fails to file a direct appeal when requested

to do so by a client, which constitutes per se ineffectiveness, see

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999), counsel’s

failure to file a post-sentence motion, even if requested to do so, is not

per se ineffectiveness. See Commonwealth v. Reaves, 923 A.2d at

1119, 1129-1131 (Pa. 2007) (post-conviction petitioner required to

establish actual prejudice where counsel’s alleged deficiency stemmed

from failure to move for reconsideration of sentence); Commonwealth

v. Liston, 977 A.2d 1089, 1092 (Pa. 2009) (clarifying Reaves holding

that failure to file post-sentence motions “does not fall within the

limited ambit of situations where a defendant alleging ineffective

assistance of counsel need not prove prejudice to obtain relief”).

Instead, a PCRA petitioner alleging trial counsel’s ineffectiveness for

failure to file a post-sentence motion must satisfy the three-pronged test

for ineffectiveness. Reaves, supra. A petitioner, therefore, bears the

burden of pleading and proving that trial counsel’s failure to file a post-

sentence motion prejudiced him; namely, that had counsel filed the

post-sentence motions, the sentencing court would have granted them.

See Liston, supra. [Petitioner] did not meet that burden, nor did he raise

a genuine issue on this claim.

Here, [Petitioner’s] claims before the PCRA court did not address why

the trial court would have granted a motion to reconsider [Petitioner’s]

sentence. Although [Petitioner] expressed displeasure with the

consecutive nature of his sentences in his objections to the PCRA

court’s Rule 907 notice, he offered no reason why the trial court would

have granted relief on this basis where the aggregate sentence amounted

to the very 25 to 50 year sentence to which [Petitioner] had specifically

agreed in the closed plea deal.

Moreover, the consecutive nature of a sentencing scheme is seldom the

basis for finding a substantial question that the trial court acted outside

sentencing norms or contrary to the Sentencing Code. See

Commonwealth v. Moury, 992 A.2d 162, 171-172 (Pa. Super. 2010)

(sentencing court has discretion to impose sentences consecutively or

concurrently, and challenges to this exercise of discretion do not raise

a substantial question except in extreme circumstances). As

[Petitioner] offered no explanation as to how his consecutive sentences

supported reconsideration of his punishment, he deserves no relief on

this argument.

[Petitioner] also was unable to demonstrate below that counsel induced

him to plead guilty where he verified both in his written and oral plea

colloquies that his plea was not the product of undue influence or

coercion but was, instead, entered into knowingly, intelligently, and

freely. [Petitioner] is bound by the statements he made under oath

during his plea. See Commonwealth v. Pollard, 832 A.2d 519 (Pa.

Super. 2003) (holding statements under oath confirming desire to plead

guilty are binding).

Likewise, for the same reasons expressed by the PCRA court below,

we find [Petitioner’s] ineffectiveness claims based on allegedly after-

discovered evidence in the form of a videotape and on counsel’s failure

to raise mitigating factors at sentencing have no basis in relevant facts.

With regard to the video, the notes of testimony from [Petitioner’s]

guilty plea hearing, as referenced supra, established that the video was

known and available to [Petitioner] during the hearing. For that matter,

he altogether fails to argue specifically how the video would have

benefitted him even if counsel had secured it for the court’s review. In

much the same way, [Petitioner] develops no meaningful argument

demonstrating how mitigating sentencing factors were at all relevant

where he had entered a closed plea foreclosing the court’s exercise of

sentencing discretion.

Chisom, 2021 WL 672920, at *3-4.

In the context of a guilty plea, Strickland’s prejudice test requires the

petitioner to establish “that there is a reasonable probability that, but for counsel’s

errors[, the petitioner] would not have pleaded guilty and would have insisted on

going to trial.” Lafler v. Cooper, 566 U.S. 156, 163 (2012) (quoting Hill v. Lockhart,

474 U.S. 59, 59 (1985)). Petitioner, therefore, was required to demonstrate to the

state courts that plea counsel coerced him into pleading guilty and that he was

unlawfully induced to plead guilty, and that counsel’s performance was, therefore,

deficient. Strickland, 466 U.S. at 687-89. Moreover, a state court plea is

constitutional if the circumstances demonstrate that the defendant understood the

nature and the consequences of the charges against him and that defendant

voluntarily chose to plead. Ardrey v. Bravo, 43 F. App’x 176, 178 (10th Cir. 2002)

(citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)). Therefore, to demonstrate

that his plea was unknowing or involuntary, a petitioner must show that he was not

advised of, or did not understand, the direct consequences of his plea. See Brady v.

United States, 397 U.S. 742, 755 (1970); see also Heiser v. Ryan, 951 F.2d 559, 561

(3d Cir. 1991) (quoting Brady, 397 U.S. at 748) (noting that a guilty plea “must be

a ‘knowing, intelligent act,’ that is ‘the voluntary expression of [the defendant’s]

own choice’”).

Upon consideration of the record, the Court concludes that the Court

concludes that the state courts’ conclusions were reasonable determinations of the

facts in light of the evidence presented, and were neither contrary to, nor

unreasonable applications of, clearly established federal law. During his guilty plea

colloquy, Petitioner represented that he understood the charges filed against him, as

well as the potential penalties for those charges. (Doc. No. 9-1 at 8.) Petitioner

indicated that he understood that he was giving up his right to a jury trial and that

were only three (3) issues he could raise on appeal should he choose to challenge his

guilty plea and resulting sentence. (Id. at 9-10.) Petitioner stated that his

prescription medications did not impact his ability to understand the guilty plea

proceedings. (Id. at 10-11.) Moreover, near the conclusion of the guilty plea

proceedings, the court recognized that there was a videotape of the incident, and the

Commonwealth responded that there was. (Id. at 16.) Petitioner’s counsel also

indicated that Petitioner had never once denied killing Mr. Williams. (Id. at 17.)

Petitioner also represented his understanding that the 25-50 year sentence was in

accord with the negotiated plea agreement. (Id. at 18.)

From this record, the state courts reasonably concluded that Petitioner had not

demonstrated that counsel induced him to plead guilty because he represented, under

oath, that he was pleading guilty freely, intelligently, and knowingly. There was no

basis on which counsel could file meritorious post-sentence motions, and the record

reflects that the videotape was not after-discovered evidence, as it was known to

Petitioner and his counsel at the time of his plea. Moreover, Petitioner has provided

no allegations detailing what arguments counsel should have raised in any post-

sentence motions and has not asserted how the videotape would have changed his

mind about pleading guilty. Upon review of the record, the Court concludes that

Petitioner has not demonstrated that the state court’s disposition of these claims was

contrary to, or was an unreasonable application of, United States Supreme Court

precedent. Moreover, Petitioner has not demonstrated that the state court’s

determination of the facts was unreasonable. Accordingly, Grounds One and Three

will be dismissed.

IV. CERTIFICATE OF APPEALABILITY

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 v. Cockrell, 537 U.S. 322 (2003).

“When the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim, a COA should issue when

the prisoner shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the instant matter, jurists

of reason would not find the disposition of Petitioner’s petition debatable. As such,

no COA will issue.

V. CONCLUSION

For the foregoing reasons, Petitioner’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (Doc. No. 1) will be denied and a COA will not issue.

An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: July 12, 2021