FUTURE v. FERGESON

MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY G. FUTURE, :

Petitioner : CIVIL ACTION NO. 3:16-2346

v. : (JUDGE MANNION)

WARDEN TAMMY FERGUSON, :

Respondent :

MEMORANDUM

Petitioner, Jeffrey Future, an inmate confined in the Forest State

Correctional Institution, Marion, Pennsylvania, filed the instant petition for

writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He challenges

his guilty plea entered in the Court of Common Pleas of Lackawanna County.

Id. The petition is ripe for disposition. For the reasons outlined below, the

petition will be denied.

I. Background

The factual and procedural background of this case has been extracted

from the Pennsylvania Superior Court’s January 11, 2016 Memorandum

Opinion, affirming the PCRA court’s grant, in part, and denial, in part, of

Petitioner’ PCRA petition and is as follows:

Jeffrey G. Future appeals from the order entered February 3,

2015, in which the PCRA court granted in part and denied in part

his PCRA petition. Specifically, the PCRA court awarded

Appellant the right to appeal nunc pro tunc from the denial of his

original PCRA petition which it had denied by order on June 7,

2013 and denied his remaining claims as untimely. After careful

review, we affirm.

On July 30, 2009, Pennsylvania State Police responded to a

report of an individual having been shot numerous times who

was in the center of a rural roadway, Ransom Road, Lackawanna

County. A witness at the scene told police that she saw a sport

utility vehicle flee at a high rate of speed upon her approach. The

victim, Allen Fernandez, was pronounced dead at the scene. A

subsequent autopsy revealed that he had been shot twelve

times. Through their investigation, police learned of the possible

involvement of Appellant’s brother, Tonie Future. Thereafter, in

an interview with Pennsylvania State Police, Appellant admitted

to taking part in the murder of Mr. Fernandez. Appellant admitted

that he used his mother’s green Jeep Grand Cherokee to

transport the victim to the location where the victim was shot.

Police also learned that another male, Christian Kenyon, was

involved in the shooting. Appellant, his brother, and Kenyon each

fired a weapon at the victim and police located the weapons with

the aid of Kenyon. According to a statement by Appellant, they

murdered Mr. Fernandez at the behest of another member of the

Bloods street gang. Mr. Fernandez was also a member of that

gang.

Appellant pled guilty to first-degree murder on January 19, 2010.

* * * *

The court then sentenced Appellant to life imprisonment without

parole and explained his appellate rights.

Appellant did not file a direct appeal, but filed a timely pro se

PCRA petition, which was docketed on November 10, 2010.

Therein, Appellant averred that plea counsel was ineffective for

not advising him that he could not represent Appellant in a capital

trial and that plea counsel’s younger brother was the police chief

of the Scranton City police, which he posited was the arresting

agency in this matter. Appellant also alleged counsel was

ineffective for not litigating a suppression motion or filing a direct

appeal.

The court appointed PCRA counsel on January 12, 2011. Initial

PCRA counsel submitted a Turner/Finley1 no-merit letter and

petition to withdraw.2 That letter addressed each of Appellant’s

claims. The Commonwealth also filed a response to Appellant’s

pro se petition.3 Therein, the Commonwealth averred that

counsel was not required to be death qualified because it had not

filed notice of aggravating circumstances, the Pennsylvania

State Police was the arresting agency, and Appellant knowingly

waived the right to file pre-trial motions. The Commonwealth also

erroneously maintained that Appellant’s allegation that counsel

failed to file a direct appeal was not cognizable under the PCRA.

The PCRA court failed to issue Pa.R.Crim.P. 907 notice of intent

to dismiss or issue a final order. However, in an order dated April

11, 2011, it permitted counsel to withdraw.4 On May 18, 2011,

Appellant filed a document seeking his transcripts and other

docket entries, maintaining that he could not adequately respond

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2 The no-merit letter is dated April 8, 2011, but was not docketed until

September 18, 2015, well after original PCRA counsel was permitted to

withdraw. Thus, it appears that counsel improperly did not

contemporaneously file with the PCRA court the no-merit letter and petition

to withdraw. See Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011)

(noting that submitting to the court but not filing a no-merit letter was

improper). However, Appellant received the no-merit letter and petition to

withdraw as in subsequent filings he acknowledged the April 8, 2011 no merit

letter.

3 The Commonwealth filed its answer before Appellant’s counsel submitted

his no-merit letter and erroneously labeled it as an answer to an amended

petition.

4The order was filed on April 12, 2011.

to counsel’s no-merit letter, and asking the court to reconsider its

order permitting counsel to withdraw. The court, on October 26,

2011, directed the clerk of courts to provide Appellant with those

documents, which it did on the following day. Subsequently, on

January 31, 2013, Appellant filed a document entitled, “Petition

for the Court[’]s Assistance.” Therein, he pointed out that he had

not received a final order denying or granting his petition.

Appellant also noted that the Commonwealth had filed a

response to his petition, setting forth that counsel was not

required to be death qualified. Appellant argued, however, that

the Commonwealth agreed not to seek the death penalty in

exchange for his plea and that the plea court had placed on the

record that he was facing the death penalty on multiple

occasions.

In response, the PCRA court appointed new PCRA counsel,

Christopher Osborne, Esquire, on February 6, 2013. Attorney

Osborne filed a Turner/Finley no-merit letter and petition to

withdraw on June 4, 2013. PCRA counsel re-addressed the

issues Appellant leveled in his pro se petition, except for his claim

relative to seeking a direct appeal. Counsel also averred that the

issues were adequately addressed in the prior no-merit letter.

The PCRA court again failed to file a Rule 907 notice of dismissal

and instead, on June 7, 2013, granted second PCRA counsel’s

petition to withdraw and denied Appellant’s petition without a

hearing. That final order neglected to inform Appellant of his

appellate rights nor does the record reflect that the order was

sent by certified mail per the rules of criminal procedure.

Subsequently, on September 20, 2013, Appellant filed an

additional PCRA petition. That petition alleged that the

Commonwealth unlawfully induced him to plead guilty and

breached his plea agreement by not having him housed in a

federal penitentiary. He also claimed that his plea was

involuntary because the Commonwealth threatened his brother

with the death penalty if Appellant did not plead guilty. Also,

Appellant alleged that his plea was unlawful because the

Commonwealth and his plea counsel indicated that he could face

the death penalty when that was untrue. Appellant also submitted

for the first time that plea counsel was ineffective in his pre-trial

investigations, that the guilty plea colloquy was defective, and

that he was factually innocent because Christian Kenyon

admitted killing the victim.

On October 10, 2013, the PCRA court again appointed counsel.

Counsel filed an amended petition on February 7, 2014, which

alleged that counsel was ineffective in advising Appellant that he

would avoid the death penalty by pleading guilty where the

Commonwealth had not filed a notice of aggravating

circumstances pursuant to Pa.R.Crim.P. 802. Additionally,

Appellant argued that his plea was unlawfully induced where the

Commonwealth failed to make efforts to have him housed in a

federal prison. Lastly, Appellant contended that he was entitled

to the nunc pro tunc reinstatement of his PCRA appellate rights,

relative to the June 7, 2013 order, because he did not receive

copies of the second no-merit letter and petition to withdraw or

the final order.

The Commonwealth filed an answer, and the PCRA court

conducted evidentiary hearings on May 29, 2014 and August 29,

2014. At the conclusion of the hearings, the court agreed that

Appellant was entitled to reinstatement of his PCRA appellate

rights because he did not receive a copy of the order denying his

first PCRA petition but denied his remaining claims as untimely.

This appeal ensued. The PCRA court indicated that the reasons

for its decision could be found in its memorandum decision in

support of its final order. The matter is now ready for this Court’s

consideration. Appellant presents the following issues for our

review:

A. Whether the Appellant’s statutory and/or due process

rights were violated by dismissal of his pro se Petition for

Post Conviction Relief without a hearing since Appellant

did not receive notice of either the Motion to Withdraw as

Counsel, the “no-merit” letter, or his right to proceed pro se

prior to dismissal, and genuine issues of material fact

existed?

B. Whether it was an error of law for the PCRA court to

dismiss Appellant’s pro se Petition for Post Conviction

Relief since all issues raised in Appellant’s pro se Petition

were not addressed and/or properly addressed in PCRA

counsel’s “no-merit” letter?

C. Whether the PCRA court violated paragraph one (1) of

Pa.R.Crim.P. 907 by summarily dismissing Appellant’s pro

se Petition for Post Conviction Relief prior to conducting its

own independent review of the record, without giving

Appellant notice of its intention to dismiss, and without

giving Appellant an opportunity to respond prior to

dismissal?

D. Whether the PCRA court committed an error of law by

dismissing Appellant’s pro se Petition for Post Conviction

Relief since trial counsel provided ineffective assistance at

the guilty plea proceedings by giving advice that was not

within the range of competence demanded of attorneys in

criminal cases?

E. Whether Appellant’s guilty plea was unlawfully induced

since it was given to avoid the death penalty even though

at the time the guilty plea was entered the death penalty

was not applicable at the time?

F. Whether Appellant’s guilty plea was unlawfully induced

since trial counsel was not death penalty certified and/or

because the Commonwealth failed to provide notice of

aggravating circumstances as required by law?

G. Whether the PCRA Court committed an error of law in

denying the arguments made in Appellant’s Nunc Pro Tunc

Petition for Post Conviction Relief as untimely since

Appellant’s original Petition for Post Conviction Relief was

denied without a hearing, notice, an opportunity to

respond, or an opportunity to proceed pro se or with new

counsel as required by law?

H. Whether the trial court committed an error of law in denying

the claims made in Appellant’s Nunc Pro Tunc Petition for

Post Conviction Relief as being without merit?

I. Whether the Commonwealth violated the terms of the plea

agreement by failing to give its best efforts to house

Appellant in a federal penitentiary and Appellant is entitled

to the benefit of the bargain as a result?

Appellant’s brief at 4-5.

(Doc. 19-3 at 2-13, Commonwealth v. Future, No. 415 MDA 2015,

unpublished memorandum (Pa. Super. filed Jan. 11, 2016)). On January 11,

2016, the Pennsylvania Superior Court addressed Petitioner’s first three

issues (Claims A-C) raised on appeal, regarding the re-instatement of his

appeal rights and found that the PCRA court properly restored Future’s right

to appeal from the denial of his original PCRA petition. Id. In finding that the

PCRA court properly reinstated Petitioner’s appeal from his original PCRA

petition, the Superior Court dismissed Petitioner’s claims regarding PCRA

court error (Claims G, H), addressed those claims that were raised in

Petitioner’s original PCRA petition, (Claims D-F), on the merits and

dismissed Petitioner’s last claim (Claim I) as untimely and waived because

Petitioner did not forward it in his original PCRA petition. Id.

Thereafter, Future timely filed the instant petition pursuant to 28 U.S.C.

§2254.

II. Grounds For Relief

Future asserts the following grounds for relief:

1. The Prosecution obtain[ed] Petitioner’s negotiated guilty plea

based upon promises not fulfilled by the prosecution, rendering

Petitioner’s guilty plea involuntary, unknowing and unintelligent.

2. The Prosecution utilize[ed] bargained for consideration it did

not possess in exchange for Petitioner’s negotiated guilty plea,

render[ing] Petitioner’s guilty plea involuntary, unknowing and

unintelligent.

3. Ineffective assistance of guilty plea counsel.

4. Petitioner’s actual innocence and Prosecutorial misconduct

inducement of Petitioner’s plea to save his brother’s life rendered

Petitioner’s negotiated plea involuntary, unknowing and

unintelligent.

(Doc. 1 at 9).

III. Legal Standards

A. Exhaustion and Procedural Default

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

grants to persons in state or federal custody the right to file a petition in a

federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C.

§2254. Pursuant to AEDPA:

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; or

(B)(i) there is an absence of available State corrective process;

or (ii) circumstances exist that render such process ineffective to

protect the rights of applicant.

28 U.S.C. §2254(b)(1). The exhaustion requirement is rooted in

considerations of comity, to ensure that state courts have the initial

opportunity to review federal constitutional challenges to state convictions.

See Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S.

509, 518 (1982); Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007); Werts

v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

Respect for the state court system requires that the habeas petitioner

demonstrate that the claims in question have been “fairly presented to the

state courts.” Castille, 489 U.S. at 351. To “fairly present” a claim, a petition

must present its “factual and legal substance to the state courts in a manner

that puts them on notice that a federal claim is being asserted.” McCandless

v. Vaughn, 172 F.3d 225, 261 (3d Cir. 1999); see also Nara v. Frank, 488

F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented

when a petitioner presents the same factual and legal basis to the state

courts). A state prisoner exhausted state remedies by giving the “state courts

one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.”

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Pennsylvania, one

complete round includes presenting the federal claim through the Superior

Court on direct or collateral review. See Lambert v. Blackwell, 387 F.3d 210,

233-34 (3d Cir. 2004). The habeas petition bears the burden of proving

exhaustion of all state remedies. Boyd v. Waymart, 579 F.3d 330, 367

(2009).

If a habeas petition contains unexhausted claims, the federal district

court must ordinarily dismiss the petition without prejudice so that the

petitioner can return to state court to exhaust his remedies. Slutzker v.

Johnson, 393 F.3d 373, 379 (3d Cir. 2004). However, if state law would

clearly foreclose review of the claims, the exhaustion requirement is

technically satisfied because there is an absence of state corrective process.

See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); Lines v. Larkin,

208 F.3d 153, 160 (3d Cir. 2000). The failure to properly present claims to

the state court generally results in a procedural default. Lines, 208 F.3d at

159-60. The doctrine of procedural default bars federal habeas relief when a

state court relies upon, or would rely upon, “‘a state law ground that is

independent of the federal question and adequate to support the judgment’”

to foreclose review of the federal claim. Nolan v. Wynder, 363 F. App’x 868,

871 (3d Cir. 2010) (not precedential) (quoting Beard v. Kindler, 558 U.S. 53,

53 (2009)); see also Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007)

(citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)).

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,” Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005), and

that “review is foreclosed by what may honestly be called ‘rules’ ... of general

applicability[,] rather than by whim or prejudice against a claim or claimant.”

Id. at 708.

Like the exhaustion requirement, the doctrine of procedural default is

grounded in principles of comity and federalism. As the Supreme Court has

explained:

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).

Federal habeas review is not available to a petitioner whose

constitutional claims have not been addressed on the merits by the state

courts due to procedural default, unless such petitioner can demonstrate: (1)

cause for the default and actual prejudice as a result of the alleged violation

of federal law; or (2) that failure to consider the claims will result in a

fundamental miscarriage of justice. Id. at 451; Coleman, 501 U.S. at 750. To

demonstrate cause and prejudice, the petitioner must show some objective

factor external to the defense that impeded counsel’s efforts to comply with

some state procedural rule. Slutzker, 393 F.3d at 381 (quoting Murray v.

Carrier, 477 U.S. 478, 488 (1986)). To demonstrate a fundamental

miscarriage of justice, a habeas petitioner must typically demonstrate actual

innocence. Schlup v. Delo, 513 U.S. 298, 324-26 (1995).

B. Merits Review

The AEDPA increased the deference federal courts must give to the

factual findings and legal determinations of the state courts. Woodford v.

Viscotti, 537 U.S. 19, 24 (2002); Werts, 228 F.3d at 196. Pursuant to 28

U.S.C. §2254(d), as amended by AEDPA, a petition for habeas corpus may

be granted only if: (1) the state court's adjudication of the claim resulted in a

decision contrary to, or involved an unreasonable application of, “clearly

established Federal law, as determined by the Supreme Court of the United

States;” or (2) the adjudication resulted in a decision that was “based on an

unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. §2254(d)(1)-(2). Factual issues

determined by a state court are presumed to be correct, and the petitioner

bears the burden of rebutting this presumption by clear and convincing

evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. §2254(e)(1)).

The Supreme Court has explained that, “[u]nder the ‘contrary to’

clause, a federal habeas court may grant the writ if the state court arrives at

a conclusion opposite to that reached by [the Supreme] Court on a question

of law or if the state court decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412-13 (2000); see also Hameen v. State of Delaware, 212 F.3d

226, 235 (3d Cir. 2000). “Under the ‘unreasonable application’ clause, a

federal habeas court may grant the writ if the state court identifies the correct

legal principle from [the Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S.

at 413. The “unreasonable application” inquiry requires the habeas court to

“ask whether the state court’s application of clearly established federal law

was objectively unreasonable.” Hameen, 212 F.3d at 235 (citing Williams,

529 U.S. at 388-89). “In further delineating the ‘unreasonable application’

component, the Supreme Court stressed that an unreasonable application

of federal law is different from an incorrect application of such law and that a

federal habeas court may not grant relief unless that court determines that a

state court's incorrect or erroneous application of clearly established federal

law was also unreasonable.” Werts, 228 F.3d at 196 (citation omitted).

IV. Discussion

A. Procedurally Defaulted Claims

Petitioner’s Grounds One, Two and Four are unexhausted and

procedurally defaulted.

In Ground One, Petitioner claims that the prosecution obtained his

guilty plea “based upon promises not fulfilled by the prosecution.” (Doc. 1 at

9). Specifically, Petitioner claims that he “was not housed in a federal facility,

[his] brother continued to face the death penalty after Petitioner’s plea

acceptance, and prosecution failed to use best efforts, but to the contrary,

acted in direct violation of the terms of the negotiated plea agreement.” Id.

This claim is procedurally defaulted and will be denied.

As noted above, a petitioner must exhaust his federal constitutional

claims in state court before raising them in a federal habeas petition. 28

U.S.C. §2254(b)(1); Castille, 489 U.S. at 349; Rose, 455 U.S. at 518. A state

prisoner exhausts state remedies by giving the “state courts one full

opportunity to resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process,” which, in

Pennsylvania, includes review at least through the Superior Court.

O’Sullivan, 526 U.S. at 845; Lambert, 387 F.3d at 233–34. The failure to

properly present claims to the state court generally results in a procedural

default. Lines, 208 F.3d at 165–66. A federal court is precluded from

reviewing the merits of a procedurally defaulted claim if the state courts relied

on an independent and adequate state ground to foreclose review of the

federal claim. Beard, 558 U.S. at 53.

Here, Petitioner’s Ground One is defaulted because he has not

presented it through one complete round of Pennsylvania’s established

appellate review process. O’Sullivan, 526 U.S. at 845. Petitioner raised this

claim for the first time in his untimely Amended PCRA petition which,

although determined as untimely by the PCRA court under the PCRA statute

of limitations, was denied on the merits as follows: “We find no merit in

Petitioner’s claim that the Commonwealth violated the plea agreement.

Since Petitioner discontinued his cooperation with federal officials, the

Commonwealth was no long required to continue exercising its best efforts

to have Petitioner housed in a federal penitentiary.” (Doc. 19-7 at 51).

On appeal, the Superior Court found this claim “untimely and waived

because [Petitioner] did not forward it in his original PCRA matter.” (Doc. 19-

3 at 34). Additionally, the Court found that Petitioner “failed to plead and

prove a timeliness exception relative to his claim that the Commonwealth

failed to abide by the plea agreement.” Id.

The claim that Petitioner’s brother continued to face the death penalty

after Petitioner pled guilty was also raised in Petitioner’s untimely Amended

PCRA petition filed by Petitioner. However, Petitioner failed to raise this claim

on appeal to the Superior Court.

Therefore, the claims that encompass Petitioner’s Ground One claim

have not completed one full round of the State’s appellate review process.

Accordingly, Petitioner’s Ground One claim is unexhausted and procedurally

defaulted as Petitioner would now be precluded from raising it under the

PCRA statute of limitations and Pennsylvania’s PCRA waiver rule, 42

Pa.C.S. §9544(b).5 The waiver rule codified at §9544(b) is an independent

and adequate state rule which bars federal habeas review. Patton v. Sup’t

Graterford SCI, 2017 WL 5624266, at *1 (3d Cir. 2017) (“[T]he state court’s

reliance on 42 Pa. Cons. Stat. §9544(b) provides an independent and

adequate ground to support the judgment.”). Ground One is clearly

procedurally defaulted and Future does not allege cause or prejudice. Nor

does he allege that lack of review by this court will constitute a fundamental

5 42 Pa. Cons. Stat. §9544(b) provides: “For purposes of this subchapter, an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.”

miscarriage of justice. Consequently, this claim is foreclosed from habeas

review.

Petitioner’s Ground Two alleges that the prosecution utilized bargained

for consideration that it did not possess, rendering his guilty plea involuntary,

unknowing, and unintelligent. (Doc. 9 at 9). Specifically, Petitioner contends

that the prosecution did not possess for exchange the death penalty against

him as it had been previously waived in exchange for his statement; the

power to federal house Petitioner, nor the power to remove the death penalty

from his brother’s case. Id.

Petitioner’s claim that the death penalty had previously waived was

only raised in Petitioner’s untimely Amended PCRA petition and was not

raised in the Superior Court. (See Doc. 19-3 and Doc. 19-7). His claim that

the Commonwealth did not have the power to do the things it promised and

that his guilty plea was thus unlawfully induced, was not raised in any of

Petitioner’s PCRA petitions before the state court. Id. Consequently,

Petitioner’s Ground Two is procedurally defaulted. See McCandless, 172

F.3d at 260. Petitioner does not allege cause or prejudice. Nor does he allege

that lack of review by this court will constitute a fundamental miscarriage of

justice. Accordingly, habeas review of this claim is foreclosed.

Lastly, Petitioner’s Ground Four claims that his “actual innocence and

the prosecutorial misconduct inducement of requiring him to plead guilty to

save his brother’s life rendered his plea involuntary, unknowing and

unintelligent”. (Doc. 9 at 9). Specifically, Petitioner contends that the autopsy

report and ballistics confirm that he is innocent, that he wanted a trial, and

that requiring him to enter a guilty plea to save the life of his brother was an

improper inducement and was in fact not required. Id. Lastly, Petitioner again

contends that the prosecution waived his death penalty in exchange for his

statement months prior to the plea. Id.

Although Petitioner claimed his innocence and that his guilty plea was

unlawfully induced by the offer to save his brother’s life in his untimely

Amended PCRA petition, these issues were not raised in Petitioner’s initial

PCRA petition, were not addressed by the PCRA court, and most importantly

were not raised in Petitioner’s state appeals. (See Doc. 19-3 and Doc. 19-7).

The same is true for Petitioner’s claim that the prosecution had waived the

death penalty in exchange for petitioner’s statement prior to the plea. Id.

Consequently, Petitioner’s Ground Four claims have not been exhausted in

the state courts. There is no question that the Pennsylvania courts would not

entertain the claim at this juncture. Hence, Petitioner’s Ground Four claim is

procedurally defaulted. See McCandless, 172 F.3d at 260. Future does not

allege cause or prejudice. Nor does he allege that lack of review by this court

will constitute a fundamental miscarriage of justice. Consequently, habeas

review is foreclosed on Grounds One, Two and Four.

B. Ground Three – Merits Analysis

Petitioner’s Ground Three raises various intertwined claims of

ineffective assistance of plea counsel. (Doc. 9 at 9). Specifically, he claims

that counsel “was not death penalty certified or experienced, he was

unaware of law fundamental to the case, he was ineffective during plea

negotiations, and Appellant counsel waived and barred meritorious issues

on appeal and review, including the amended PCRA petition was an

extension of the original PCRA petition.” Id.

To establish an ineffective assistance of counsel claim, a habeas

petitioner must show that: (1) trial counsel’s performance was deficient; and

(2) the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). The Strickland test is conjunctive,

and a habeas petition must establish both the deficient performance prong

and the prejudice prong.6 See id. at 687; Rainey v. Varner, 603 F.3d 189,

197 (3d Cir. 2010).

6 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.

Counsel’s performance is deficient only if it falls below the wide range

of competence demanded of attorneys in criminal cases. Id. at 687–89. This

requires a showing “that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting

Strickland, 466 U.S. at 687). Indeed, a federal habeas court is “required not

simply to give the attorney the benefit of the doubt, but to affirmatively

entertain the range of possible reasons petitioner’s counsel may have had

for proceeding as he did.” Branch v. Sweeney, 758 F.3d 226, 235 (3d Cir.

2014) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011))

(alterations omitted).

To establish prejudice in the context of a guilty plea, a petitioner must

“show [that] the outcome of the plea process would have been different with

competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012); see also Hill

v. Lockhart, 474 U.S. 52, 59 (1985) (requiring a petitioner to “show that there

is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial”). A petitioner makes

this showing by establishing not only that he would not have pleaded guilty

and instead would have proceeded to trial if he had been properly advised,

but also that “a decision to reject the plea bargain would have been rational

under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

The Superior Court stated that the proper standard governing

ineffective assistance of guilty plea counsel claims as follows:

“To plead and prove ineffective assistance of counsel a petitioner

must establish: “(1) that the underlying issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice resulted from counsel’s act or failure to act.”

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013)

(en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id.

A claim has arguable merit where the factual predicate is

accurate and “could establish cause for relief.” Id. at 707. A

determination as to whether the facts asserted present a claim of

arguable merit is a legal one. Id. In considering whether counsel

acted reasonably, we do not use a hindsight analysis; rather, an

attorney’s decision is considered reasonable if it effectuated his

client’s interests. Id. Only where “no competent counsel would

have chosen that action or inaction, or, the alternative, not

chosen, offered a significantly greater potential chance of

success[,]” will counsel’s strategy be considered unreasonable.

Id. Finally, actual prejudice exists if “there is a reasonable

probability that, but for counsel's errors, the result of the

proceeding would have been different.” Id. It is presumed that

counsel renders effective representation.

(Doc. 19-3, at 22). The Third Circuit has specifically held that the very

ineffectiveness assistance of counsel test relied upon by the Superior Court

in this matter is not contrary to the Supreme Court’s Strickland standard. See

Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, we find that the

Superior Court’s decision is not contrary to Strickland.

Petitioner’s claim of ineffective assistance of counsel begin with the

contention that his guilty plea was involuntary, unknowing, and unintelligent.

With regard to a challenge to a guilty plea in a federal habeas action, our

Supreme Court has stated the following:

A plea of guilty and the ensuing conviction comprehend all of the

factual and legal elements necessary to sustain a binding, final

judgment of guilt and a lawful sentence. Accordingly, when the

judgment of conviction upon a guilty plea has become final and

the offender seeks to reopen the proceeding, the inquiry is

ordinarily confined to whether the underlying plea was both

counseled and voluntary. If the answer is in the affirmative then

the conviction and the plea, as a general rule, foreclose the

collateral attack.

United States v. Broce, 488 U.S. 563, 569 (1989). See also Lesko v.

Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991). The voluntariness of a plea

can only be determined by considering all of the relevant circumstances

surrounding it. Brady v. United States, 397 U.S. 742, 749 (1970).

The Pennsylvania Superior Court applied the following similar standard

of review:

Where a petitioner alleges that guilty plea counsel was

ineffective, he must demonstrate that absent counsel’s incorrect

advice or failure to advise, there is a reasonable probability he

would have not have pled guilty and would have proceeded to

trial, Commonwealth v. Barndt, 74 A.3d 185 (Pa.Super. 2013),

or, not relevant here, accepted a plea offer. In examining whether

such prejudice exists in the context of a guilty plea, we look to

whether the plea is knowing, intelligent, and voluntary.

Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (“Allegations of ineffectiveness in connection with the entry

of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused the defendant to enter an involuntary or

unknowing plea.”); Commonwealth v. Bedell, 954 A.2d 1209,

1212 (Pa.Super. 2008). In determining whether a plea was

knowing, intelligent, and voluntary, we consider the totality of the

circumstances. Commonwealth v. Allen, 732 A.2d 582, 587

(Pa. 1999); id. at 589.

(Doc. 19-3, at 22).

In this case, the findings and rulings by the trial court and the Superior

Court with respect to the voluntariness of Petitioner’s plea were sound and

based upon on the admissions of Petitioner made at the time of his plea and

bolstered by volunteered admissions that he made during the course of his

sentencing. In rendering its decision on the voluntariness of Petitioner’s

guilty plea, the Superior Court found the following:

Appellant pled guilty to first-degree murder on January 19, 2010.

Initially, Appellant expressed reluctance at entering his plea and

set forth that he desired to proceed to a trial. The court noted that

it had previously given Appellant approximately a month to

consider the Commonwealth’s plea offer and that Appellant was

free to change his mind regarding entering a plea, but it would

not accept a guilty plea if he elected not to enter a plea that day.

The court expressed frustration at Appellant manipulating the

court and sheriff’s office, since on a prior occasion he had

decided not to enter an agreed-upon plea. Nonetheless, the court

explained that it had been comfortable giving Appellant five

weeks to consider the plea offer. It then asked Appellant if he had

enough time to review his own inculpatory statements and other

documents with his attorney. The court indicated that it wanted

“to make sure you are not doing this because you feel somehow

you are not adequately informed. You had enough time to meet

with counsel? You had enough time to review the evidence [in]

this case?” N.T., 1/19/10, at 5.

After Appellant stated that he needed more time to consult with

his attorney, the court took a recess and permitted Appellant to

review the matter with his counsel for an additional two hours.

Counsel also placed on the record that he had reviewed

Appellant’s statements with him for a total of three hours during

two earlier prison visits.

Following his consultation with counsel, Appellant agreed to

enter his plea. Before doing so, both his attorney and the court

colloquied him. Appellant’s attorney queried Appellant as follows.

Attorney: Last time we were here it was about two hours ago.

Since then, we have had time to discuss your case and answer

any question that you had in a cell down in the basement, right?

Appellant: Yes.

Attorney: Did I answer any questions or any concerns that you

had?

Appellant: Yes.

Attorney: Were you able to review any documents that you

wanted to review?

Appellant: Yes.

Attorney: You basically reviewed a couple of the documents, but

did I discuss with you that I thought this was probably in your best

interest - - not probably, but this is in your best interested [sic] to

plead guilty?

Appellant: Yes.

Attorney: Did I threaten you or coerce you or cause you to make

this plea?

Appellant: No.

Attorney: Are you doing this of your own free will?

Appellant: Yes.

N.T., 1/19/10, at 13-14. Thereafter, the plea court conducted its

own colloquy and reviewed a written guilty plea colloquy that

Appellant had reviewed and initialed. The court explained that

Appellant had an absolute right to a jury trial and by pleading

guilty he would be giving up certain rights. It pointed out that he

was presumed innocent and the burden of proof at trial rested on

the Commonwealth. The court explained the concept of

reasonable doubt and that the prosecution would have to

establish each element of the charges beyond a reasonable

doubt and that the jury’s verdict must be unanimous.

In addition, the court informed Appellant that he had the right to

present his own witnesses as well as cross-examine any

Commonwealth witnesses, but he was not required to testify or

present a defense. The court also set forth the manner in which

a jury would be selected, noting that the matter was a death

penalty case. At that time, however, the Commonwealth had not

provided notice of any aggravating circumstances and

apparently, plea counsel was not “death qualified” to try the

matter.

The court further discussed Appellant’s right to litigate pre-trial

motions and that, by pleading guilty, any issues he could litigate

on appeal would be limited. Since Appellant had been on parole

at the time of his commission of the crime herein, the court also

explained that by pleading guilty he was admitting to violating his

parole and that he could be sentenced to complete his parole

sentence. The court also defined first-degree murder and asked

Appellant to repeat the definition to demonstrate that he

understood. With respect to the actual plea agreement, the court

set forth that the Commonwealth was agreeing to “abandon any

efforts to get the death penalty. In addition to that they have

agreed that your brother would also not face the death penalty if

he agrees to enter a plea of guilty.” Id. at 33.

The court continued by placing on the record that the

Commonwealth also had agreed to make efforts to place

Appellant in federal custody for protective reasons and not state

prison. The Commonwealth indicated on the record that it

agreed with the court’s recitation of the agreement.

Appellant submitted again that he had not been threatened to

enter the plea and that he was freely and voluntarily pleading

guilty. He also acknowledged the maximum penalty and fine, and

that he faced a mandatory sentence of life imprisonment without

parole. The court then recited the underlying fact that Appellant,

with specific intent, shot and killed Allen Fernandez. Appellant

admitted to the crime.

The court accepted Appellant’s plea, placing on the record that it

reviewed a presentence investigative report and that it had no

discretion to sentence Appellant to anything other than life

imprisonment without parole, but felt that such a sentence was

appropriate. Appellant apologized to the victim’s family, accepted

full responsibility, and offered advice to parents to prevent their

kids from falling for the “psychological trickery” of the gang

lifestyle. N.T., 1/19/10, at 45. The court then sentenced Appellant

to life imprisonment without parole and explained his appellate

rights.

(Doc. 19-3 at 3-7).

This Court agrees with the Pennsylvania Superior Court’s finding that

the Petitioner’s plea was voluntary and that the plea colloquy was adequate.

Section 2254(e) “establishes a presumption of correctness” of state-court

factual decisions which the applicant has the burden of rebutting with “clear

and convincing evidence.” 28 U.S.C.S. §2254(e). In this case, Petitioner's

7 The record contains subsequent filings in which the Commonwealth

indicated that Appellant had elected not to cooperate with federal

investigators and that he should be moved to state prison. Appellant testified

at his PCRA hearing that cooperation with federal authorities was not part of

the plea agreement, and the record of the plea hearing supports his position.

unsupported assertion that counsel was unaware of law fundamental to the

case and was ineffective during plea negotiations does not meet the

threshold of “clear and convincing evidence” that the plea he gave prior to

being sentenced was involuntary. Additionally, the state court ruling was

fairly supported by the record as required by Section 2254(d). Thus,

Petitioner’s claim regarding the alleged involuntariness of his guilty plea will

be denied on the merits.

Petitioner argues that counsel was ineffective for failing to comply with

Pennsylvania Rules of Criminal Procedure Rule 8018 and Rule 802.9 The

Superior Court addressed this issue on the merits, finding that the fact that

plea counsel was not death penalty certified did not render him ineffective.

(Doc. 19-3 at 32). The Court reasoned that “if the Commonwealth had [] filed

a notice of aggravating circumstances, Petitioner would have been

constitutionally entitled to capital counsel.” Id. However, “[t]he absence of

8 Pennsylvania Rules of Criminal Procedure Rule 801 states that “before an

attorney may participate in any stage of [a capital case] either as retained or

appointed counsel, the attorney must meet the educational and experiential

criteria set forth in [the] rule.” Pa.R.Crim.P. 801.

9 Pennsylvania Rules of Criminal Procedure Rule 802 states that “[t]he

attorney for the Commonwealth shall file a Notice of Aggravating

Circumstances that the Commonwealth intends to submit at the sentencing

hearing and contemporaneously provide the defendant with a copy of such

Notice of Aggravating Circumstances. Notice shall be filed at or before the

time of arraignment or the time for filing is extended by the court for cause

shown.” Pa.R.Crim.P. 802.

death qualified counsel in this matter was not per se prejudicial,” finding that

“all the prongs of the Strickland/Pierce ineffectiveness standard must be

demonstrated.” Id. The Court finds that the Superior court reasonably applied

Strickland in holding that plea counsel was not deficient under the Strickland

test. Accordingly, we find that Petitioner has failed to establish that his plea

counsel’s actions were unreasonable and that, but for counsel’s alleged

error, Petitioner would have insisted on going to trial. Thus, the Court denies

relief on this claim.

Finally, to the extent that Petitioner claims that PCRA counsel was

ineffective, such a claim is not cognizable in a federal habeas petition.

Petitioner did not have a federal constitutional right to counsel during his

PCRA proceeding, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

therefore, he cannot receive habeas relief on a stand-alone claim that his

PCRA counsel was ineffective. See 28 U.S.C. §2254(i) (“[t]he ineffectiveness

of counsel during Federal or State collateral post-conviction proceedings

shall not be ground for relief in a proceeding arising under section 2254”);

Coleman, 501 U.S. at 752-53 (“There is no constitutional right to an attorney

in state post-conviction proceedings.... Consequently, a petitioner cannot

claim constitutionally ineffective assistance of counsel in such proceedings.”)

V. Certificate of Appealability

“Under the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), a ‘circuit justice or judge’ may issue a COA [certificate of

appealability] only if the petitioner ‘has made a substantial showing of the

denial of a constitutional right.’” Tomlin v. Britton, 448 Fed.Appx. 224, 227

(3d Cir. 2011) (citing 28 U.S.C. §2253(c)). “Where a district court has

rejected the constitutional claims on the merits, ... the petitioner must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

For the reasons set forth herein, Petitioner has not made a substantial

showing of the denial of a constitutional right or that jurists of reason would

find it debatable that Court’s assessment of the claims debatable or wrong.

Accordingly, a COA will not issue.

VI. Conclusion

For the reasons set forth above, the Court will deny the petition for writ

of habeas corpus. A separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 27, 2022

16-2346-01