The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS MICHAEL TATE, No. 4:19-CV-00157
Petitioner, (Chief Judge Brann)
v.
ROBERT MARSH,
Respondent.
MEMORANDUM OPINION
SEPTEMBER 29, 2021
Pro se Petitioner Nicholas Michael Tate (“Tate”), who is incarcerated in the
State Correctional Institution-Benner Township (“SCI-Benner Township”), filed a
petition for writ of habeas corpus seeking relief from a criminal conviction and
sentence in the Dauphin County Court of Common Pleas. The petition is ripe for
disposition. For the reasons set forth below, the petition will be denied.
I. BACKGROUND
The Pennsylvania Superior Court has succinctly summarized much of the
relevant factual background and procedural history.1 On May 16, 2016, Tate
pleaded guilty to possession with intent to deliver a controlled substance,
possession of drug paraphernalia, receiving stolen property, illegal possession of a
firearm, flight to avoid apprehension, and tampering with or fabricating evidence
1 See Commonwealth v. Tate, No. 1299 MDA 2017, 2018 WL 1918458, at *1 (Pa. Super. Ct.
in the Dauphin County Court of Common Pleas.2 He was sentenced to three to six
years imprisonment.3 The Superior Court provided the following summary of the
facts relevant to Tate’s conviction, which stemmed from two different criminal
cases in the trial court:
We summarize the material facts leading to the charges at docket CP–22–
CR–0006613–2015 as follows. On August 22, 2015, Appellant was involved in an
automobile accident while driving along South Oak Grove Road in West Hanover
Township, Dauphin County. Witnesses at the scene of the accident indicated that
they observed Appellant throw a small plastic baggie into a line of trees. The
witnesses directed the police to the baggie, which contained 121 grams of
marijuana. Appellant was severely injured in the accident and consequently,
transported to Hershey Medical Center (Hospital). Hospital staff later contacted the
police to inform them that they had recovered an additional 122 grams of marijuana
from four plastic baggies found in Appellant's backpack.
The pertinent facts leading to the charges at docket CP–22–CR–0000423–
2016 are as follows. On January 1, 2016, Appellant’s great aunt, Karen Symonds
(Symonds), reported to the Derry Township Police that she believed Appellant was
selling drugs out of her house in Dauphin County. On January 2, 2016, Symonds
brought marijuana to the police that she claimed belonged to Appellant. The police
obtained a search warrant for Symonds’ home based on this information. On
January 3, 2016, the police executed the search warrant at which time Appellant
attempted to flee the home. The police were ultimately able to detain Appellant.
Upon searching the premises, police recovered several guns, ammunition
(including hollow point rounds), marijuana, packaging material, four cellphones, a
bulletproof vest, and 11 letters regarding drug sales and other illegal activity.4
Tate did not initially file a direct appeal of his conviction and sentence, but
on March 24, 2017, he filed a petition to reinstate his direct appeal rights.5 The
trial court granted the petition on June 2, 2017, and directed Tate to file any post-
trial motions within ten days and any appeals to the Superior Court within thirty
2 Id.
3 Id.
4 Id.
days.6 Tate timely moved in the trial court to withdraw his guilty plea and timely
appealed to the Superior Court.7 The trial court denied the motion to withdraw the
guilty plea on August 10, 2017.8
On appeal to the Superior Court, Tate raised three grounds for relief: (1) that
his guilty plea was unlawfully induced by the ineffectiveness of counsel; (2) that
his guilty plea was not knowing, voluntary, and intentional because he was under
the influence of psychotropic drugs at the time of the plea; and (3) that the guilty
plea was coerced because he felt pressure to plead guilty.9 The Superior Court
affirmed Tate’s judgment of sentence, concluding that Tate’s ineffective assistance
of counsel claim was not ripe until collateral review and that no evidence of record
supported Tate’s other claims.10 Tate filed a petition for allowance of appeal to the
Pennsylvania Supreme Court, which denied the petition on October 9, 2018.11
Tate did not file any subsequent petitions for state collateral relief under
Pennsylvania’s Post-Conviction Relief Act (“PCRA”).12
Tate initiated the present case through a petition for writ of habeas corpus
under 28 U.S.C. § 2254 in the United States District Court for the Western District
6 Id. at 2.
7 Id.
8 Id.
9 Id.
10 Id. at 2-4.
11 Commonwealth v. Tate, 195 A.3d 558 (Pa. 2018).
12 See Doc. 1-2; Commonwealth v. Tate, No. CP-22-CR-0006613-2015 (Dauphin Cty. filed Nov.
23, 2015); Commonwealth v. Tate, No. CP-22-CR-0000423-2016 (Dauphin Cty. filed Feb. 1,
of Pennsylvania on January 8, 2019.13 The case was transferred to this district on
January 28, 2019.14 Tate filed a brief in support of his petition on February 28,
2019, and Respondents filed a response to the petition on April 2, 2019.15 Tate has
not filed a reply brief in support of the petition, and the time for doing so has
expired under the Local Rules. Accordingly, the petition is ripe for the Court’s
disposition.
II. DISCUSSION
Tate’s petition raises four grounds for habeas corpus relief: (1) that the
ineffective assistance of his plea counsel rendered his guilty plea involuntary,
unknowing, and unintelligent; (2) that a defective plea colloquy rendered his plea
involuntary, unknowing, and unintelligent because he was under the influence of
psychotropic drugs during the colloquy; (3) that misconduct by the prosecutor and
police rendered his guilty plea involuntary, unknowing, and unintelligent; and (4)
that he is actually innocent of the crimes for which he was convicted.16 In the brief
in support of his petition, Tate additionally argues that his plea was involuntary,
unknowing, and unintelligent because his plea counsel coerced and induced him
into pleading guilty by telling him that if he did not accept the government’s
13 Doc. 1-2.
14 Doc. 3.
15 Docs. 9, 11.
proffered plea bargain, the case would be referred to “the Feds,” which would
result in him spending more time in prison and counsel’s fees increasing.17
Respondents argue that habeas corpus relief should be denied with respect to
Tate’s ineffectiveness claim, his claim attacking the plea colloquy, his claim of
prosecutorial and police misconduct, and his claim of actual innocence because
those claims were not raised in state court.18 To the extent that Tate’s petition
challenges the voluntariness of his guilty plea, Respondents argue that the petition
should be denied on its merits.19 I will analyze the issue of procedural default and
the merits of the petition seriatim.
A. Procedural Default
Under the procedural default doctrine, a federal court ordinarily may not
consider a state prisoner’s claim for habeas corpus relief if the claim has not been
raised in state court in accordance with the procedural requirements of the state.20
If a claim has not been fairly presented in state court but state procedural rules
would clearly bar the petitioner from bringing the claim, exhaustion of state
remedies is excused but the claim is subject to procedural default.21 In such a
situation, the federal court may only reach the merits of the claim if the petitioner
17 Doc. 9 at 17-20.
18 Doc. 11.
19 Id.
20 Martinez v. Ryan, 566 U.S. 1, 9-10 (2012); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
21 Whitney v. Horn, 280 F.3d 240, 252 (3d Cir. 2002) (citing Lines v. Larkins, 208 F.3d 153, 160
shows either (1) cause for the procedural default and prejudice resulting from the
alleged violation of federal law or (2) that a fundamental miscarriage of justice
would occur if the federal court did not consider the claim on its merits.22
Several of Tate’s claims were not raised in state court and are subject to
procedural default because they are now barred by Pennsylvania procedural rules.
Specifically, Tate’s claim of ineffective assistance of counsel, his claim attacking
the sufficiency of his plea colloquy, his claim of prosecutorial and police
misconduct, and his claim of actual innocence were not raised in Pennsylvania
state court,23 and the deadline for raising those claims in a collateral petition under
the PCRA has expired.24
Although Tate attempted to raise his ineffective assistance of counsel claim
before the Superior Court on direct review from his conviction, the Superior Court
declined to decide that claim on its merits because it was not ripe until collateral
review.25 Tate did not subsequently file a petition for state collateral review under
the PCRA and accordingly failed to raise the ineffective assistance of counsel
claim in accordance with Pennsylvania’s procedural rules.
22 Id. (citing Lines, 208 F.3d at 166); Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002)
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
23 See Tate, 2018 WL 1918458, at *1-4.
24 See 42 Pa.C.S. § 9545(b) (setting one-year limitations period for the filing of a PCRA petition,
beginning on the date the judgment becomes final).
Tate does not specifically make any arguments as to why the Court should
consider his procedurally defaulted claims, but he does raise an independent claim
that he was actually innocent of the crimes for which he was convicted. I will
liberally construe this as an argument that a fundamental miscarriage of justice
would occur if the Court did not consider the procedurally defaulted claims,
because a petitioner may establish a miscarriage of justice if he can show that “it is
more likely than not that no reasonable juror would have found [him] guilty
beyond a reasonable doubt.”26 Here, Tate argues that he has established his actual
innocence because he “always maintained his innocence,” because he moved to
withdraw his guilty plea, because his fingerprints were not on any of the marijuana
baggies, and because “the evidence used against him was unconstitutional.”27
The Court finds that Tate has not established a fundamental miscarriage of
justice that would allow consideration of the merits of his procedurally defaulted
claims. There was more than enough evidence for a reasonable finder of fact to
find Tate guilty of the underlying offenses, including eyewitness accounts that Tate
discarded a baggie of marijuana, recovery of several baggies of marijuana from his
person, and recovery of guns, ammunition, marijuana, and drug paraphernalia from
Tate’s great aunt’s house.28
26 House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
27 Doc. 1-2 at 11.
Therefore, I will deny habeas corpus relief as to Tate’s ineffective assistance
of counsel, plea colloquy, misconduct, and actual innocence claims because they
are procedurally defaulted. My analysis proceeds to the merits of Tate’s petition
only to the extent that it challenges whether his guilty plea was knowing,
voluntary, and intelligent.
B. Merits
This case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), which sets standards for the review of habeas corpus
petitions brought by state prisoners. AEDPA states in relevant part:
(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.29
The standard for obtaining habeas corpus relief under AEDPA is “difficult to
meet.”30 Federal habeas corpus relief is meant to guard against “extreme
malfunctions in the state criminal justice systems” and is not meant to substitute
29 28 U.S.C. § 2254(d).
30 Mays v. Hines, 592 U.S. __, 141 S. Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562
for “ordinary error correction through appeal.”31 “Federal habeas courts must defer
to reasonable state-court decisions,”32 and may only issue a writ of habeas corpus
when the state court’s decision “was so lacking in justification” that its error was
“beyond any possibility for fairminded disagreement.”33
In this case, the Superior Court considered on the merits Tate’s claim that
his guilty plea was not knowing, voluntary, and intelligent.34 The Superior Court
considered the record of Tate’s plea colloquy and concluded that Tate had received
a full and proper plea colloquy.35 The Superior Court also noted that during the
colloquy, Tate confirmed that he understood the nature of the charges against him,
the factual basis for the plea, the permissible ranges of sentences for the charged
offense and the fact that he was giving up his right to be presumed innocent and his
right to a trial by jury.36 Based on this information, that court concluded that “the
record supports the trial court’s determination that Appellant entered a knowing,
voluntary, and intelligent guilty plea and that he failed to demonstrate a manifest
injustice warranting the withdrawal of his plea.”37
31 Harrington, 562 U.S. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(Stevens, J. concurring in judgment)).
32 Dunn v. Reeves, 594 U.S. __, 141 S. Ct. 2405, 2407 (2021).
33 Mays, 141 S. Ct. at 1149 (quoting Harrington, 562 U.S. at 102).
34 Tate, 2018 WL 1918458, at *3.
35 Id.
36 Id.
The Superior Court also considered Tate’s claims that psychotropic
medications precluded him from entering a knowing, voluntary, and intelligent
guilty plea and that his plea counsel coerced him into pleading guilty.38 Tate raises
both of these arguments in support of his petition before this Court, and I will
consider the arguments below.
1. Tate’s Psychotropic Drugs Argument
Tate argues that his plea was not knowing, voluntary, and intelligent because
he was under the influence of psychotropic drugs during the colloquy and because
he was coerced into pleading guilty by his counsel.39 With respect to the
psychotropic drugs claim, he asserts that he “had serious mental health problems,”
including paranoid schizophrenia and bipolar disorder, and that he was on
“substantial medications,” including “Neuraton, Trazadone, Serequel, Abilify and
Zeprexa.”40 “Thus,” Tate argues, “a mental health evaluation or a competency
evaluation[] should have been performed or requested by Counsel or the Court sua
sponte, as he was unconstitutionally impaired to enter a plea or to communicate
rationally with his defense counsel.”41
The Superior Court considered this argument on the merits and concluded
that there was no evidence in the record to support Tate’s assertion that
38 Id. at 3-4.
39 Doc. 9 at 20, 29.
40 Id. at 29.
psychotropic drugs precluded him from entering a knowing, voluntary, and
intelligent guilty plea.42 To the contrary, that court noted that during the colloquy,
the prosecutor stated that Tate “had a history of mental health problems,” but that
“his demeanor and social interactions had substantially improved” since he had
been incarcerated and regularly taking his medications.43 The Superior Court
continued:
At no point during this discussion did Appellant claim that these
medications impacted his ability to make a knowing, voluntary, and
intelligent plea. In fact, he thanked the prosecutor for his remarks. If
anything, the prosecutor’s comments demonstrate that the medications
aided Appellant in making a knowing, voluntary, and intelligent plea.44
I find that the Superior Court’s decision on this issue was reasonable and
was not contrary to clearly established federal law.45 Although Tate asserts that
counsel or the court should have requested a competency hearing to determine
whether the medications he was taking affected his ability to knowingly,
voluntarily, and intelligently plead guilty, his statements during the plea colloquy
indicated that the medications were not affecting him in such a way and that a
competency hearing therefore would not be necessary.46 Tate does not dispute the
accuracy of the transcript of the plea colloquy or offer any other evidence to
indicate why the testimony during the plea colloquy should be disregarded. I
42 Tate, 2018 WL 1918458, at *3.
43 Id.
44 Id. (internal citation omitted).
45 See 28 U.S.C. § 2254(d).
accordingly find the Superior Court’s decision on this issue reasonable and will
reject Tate’s argument for habeas corpus relief.
2. Tate’s Coercion Argument
Tate’s remaining argument is that his plea was not knowing, voluntary, and
intelligent because he was coerced into pleading guilty by his counsel’s statements
that the case would be referred to “the Feds” if he did not plead guilty.47
The Superior Court considered this argument on its merits and concluded
that no evidence of record supported Tate’s argument.48 In fact, as with the
psychotropic drugs argument, the court found that Tate’s statements during the
plea colloquy directly rebutted his argument:
At his guilty plea hearing, Appellant specifically indicated that he was
satisfied with the representation of his counsel. Moreover, when asked
if “anyone threatened, coerced you, or made any promises to you other
than the plea agreement we reached to get you to enter into this plea
today,” Appellant responded in the negative. When asked if he was
“entering into this plea of your own freewill,” Appellant responded
“Yes, sir.” Appellant never indicated during the hearing that counsel
coerced him into pleading guilty, and he has not subsequently provided
any evidence of coercion. “A defendant is bound by the statements
made during the plea colloquy, and a defendant may not later offer
reasons for withdrawing the plea that contradict statements made when
he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.
2012). Accordingly, we conclude that the trial court did not abuse its
discretion in denying Appellant’s motion to withdraw his guilty plea.49
47 See Doc. 9 at 20.
48 Id. at 4.
Before this Court, Tate argues that habeas corpus relief should be granted
because he said that counsel had made the statements to him, “there was no counter
assertion by the Commonwealth, or Counsel,” and “the Court indicated that it is
quite probable that such statements were made to [Tate] prior to the acceptance of
the Plea.”50
Tate’s argument is belied by the Superior Court’s opinion. Contrary to
Tate’s argument, the court did not indicate that counsel likely made the relevant
statements to Tate. Rather, the court noted that Tate had not offered any evidence
of coercion during the plea colloquy and had not done so at any point after the
colloquy. Based on the lack of evidence of coercion and Tate’s statements during
the colloquy that he was entering into the plea of his own free will and had not
been pressured into doing so by another person, the court upheld the trial court’s
decision denying the motion to withdraw the guilty plea. We find that the Superior
Court’s decision was reasonable and was not contrary to clearly established federal
law, and we will accordingly deny habeas corpus relief.
III. CONCLUSION
For the foregoing reasons, Tate’s petition for writ of habeas corpus will be
denied with prejudice. A certificate of appealability will not be issued because no
reasonable jurist would disagree with our ruling or conclude that the issues
presented are adequate to deserve encouragement to proceed further.51
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
51 Buck v. Davis, 580 U.S. __, 137 S. Ct. 759, 773 (2017) (citing Miller-El v. Cockrell, 537 U.S.