# FUTURE v. FERGESON

> District Court, M.D. Pennsylvania · June 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10411871

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411871

## How later opinions describe it (automated extraction)

- noting that submitting to the court but not filing a no-merit letter was improper
- recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis to the state courts

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411871. Public record. Not legal advice.