Martinez v. Overlander

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL L. MARTINEZ, No. 4:20-CV-00971

Petitioner, (Chief Judge Brann)

v.

DEREK OBERLANDER,

Respondent.

MEMORANDUM OPINION

APRIL 14, 2023

Petitioner Angel L. Martinez, (“Martinez”), an inmate confined in the Forest

State Correctional Institution, Marienville, Pennsylvania, files the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging convictions

and sentences imposed in the Court of Common Pleas of York County in criminal

cases CP-67-CR-0001838-2013; CP-67-CR-0001839-2013; CP-67-CR-0002199-

2012.

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

is governed by the Antiterrorism and Effective Death Penalty Act of 1996,

Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”), will be denied.

I. BACKGROUND

The relevant facts and procedural history, extracted from the Pennsylvania

Superior Court’s April 14, 2021 decision, affirming the denial of Martinez’ PCRA

petition, are as follows:

The PCRA court summarized the testimony presented at Appellant’s

jury trial as follows:

The first witness that testified at trial was [S.M.,] Appellant’s

middle daughter and one of eight siblings. From the age of

11 to 14[,] Appellant sexually molested her with his tongue,

fingers and genitals on a weekly basis. The victim did not

remember the exact dates of when these events began or

ended.

. . . Appellant’s oldest daughter[, Kr.M.] testified . . .

Appellant first raped her when she was 14 years old. This

occurred approximately every other week until she was 17

years old.

. . . Appellant’s youngest daughter, [Ka.M.], testified . . .

Appellant first raped her when she was 11 or 12 years old.

She testified that he penetrated her vagina with his finger

multiple times, and his genitals once. She could not

remember when he stopped.

All three victims stated that they never wanted their father to

touch them in this way, that their father told them not to tell

anyone else about his conduct, and that he bribed them with

electronics and money to keep them quiet.

PCRA Ct. Op., 8/5/20, at 3-4 (record citations omitted).

Appellant was charged with multiple sexual offenses at three separate

dockets — one for each victim. The cases were consolidated for a jury

trial  which was conducted in December of 2013. Appellant was

represented at trial by Joshua Neiderhiser, Esq. On December 13, 2013,

the jury found him guilty of the following offenses:

(1) Trial Docket No. CP-67-CR-0002199-2012 (victim S.M.): rape

of a child, aggravated indecent assault of a child, indecent assault

(victim less than 13 years of age), involuntary deviate sexual

intercourse with a child, sexual assault, incest, and unlawful

contact with a minor;1

(2) Trial Docket No. CP-67-CR-0001839-2013 (victim Kr.M.):

rape,2 sexual assault, indecent assault (victim less than 16 and

defendant four or more years older),3 corruption of minors,4

terroristic threats,5 and unlawful contact with a minor; and

(3) Trial Docket No. CP-67-CR-0001838-2013 (victim Ka.M.):

aggravated indecent assault of a child, indecent assault (victim

less than 13 years of age), sexual assault, incest, and unlawful

contact with a minor.

On March 27, 2014, the trial court sentenced Appellant, across all three

dockets, to an aggregate term of 81½ to 163 years’ imprisonment.6

Several of the sentences were mandatory minimum terms imposed

pursuant to 42 Pa.C.S. § 9718 (“Sentences for offenses against infant

persons”). Attorney Neiderhiser filed a post-sentence motion, which

the court granted only to the extent it gave Appellant credit for time

served. See Order, 6/9/14. Appellant filed a timely direct appeal.

Meanwhile, on May 12, 2014, Farley Holt, Esquire, entered his

appearance as appellate counsel.

On January 26, 2015, a panel of this Court dismissed Appellant’s appeal

when Attorney Holt failed to file a brief. See Commonwealth v.

Martinez, 1107 MDA 2014 (Pa. Super. Jan. 26, 2015). On August 12,

2015, Attorney Holt filed a motion for a new trial, in which he averred

he was in possession of after-discovered evidence, namely, a notarized

statement by S.M., recanting her trial testimony. See Motion for New

1 18 Pa.C.S. §§ 3125(b), 3126(a)(7), 3124.1, 4302, 6318(a)(1).

2 18 Pa.C.S. § 3121(a).

3 18 Pa.C.S. § 3126(a)(8).

4 18 Pa.C.S. § 6301(a)(1).

5 18 Pa.C.S. § 2706(a)(1).

6 The court also determined that Appellant met the criteria for classification as a sexually

Trial, 8/12/15, at 3-6. At an October 5, 2015, hearing, Attorney Holt

made an oral request to withdraw because the Commonwealth indicated

he might be called as a witness with regard to S.M.’s signing of the

affidavit. See N.T., 10/5/15, at 2-5. The trial court permitted Attorney

Holt to withdraw and subsequently appointed Heather Reiner, Esquire,

as new PCRA counsel. At a hearing conducted on October 26, 2015,

the parties agreed Attorney Holt was ineffective for failing to file a

brief, and the trial court reinstated Appellant’s direct appeal rights nunc

pro tunc. Order, 10/26/15, at 1-2; N.T., 10/26/15, at 2-4. Appellant filed

a direct appeal nunc pro tunc on November 12, 2015.

Thereafter, on October 14, 2016, this Court affirmed Appellant’s

convictions, but vacated his judgments of sentence, concluding that the

mandatory minimum terms imposed pursuant to Section 9718 were

unconstitutional under Alleyne v. United States, 570 U.S. 99, 103

(2013) (“[A]ny fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.”).7 See Commonwealth v.

Martinez, 1994 MDA 2015 (unpub. memo at 5-7) (Pa. Super. Oct. 14,

2016). Upon remand for resentencing, on February 3, 2017, the trial

court, once again, imposed an aggregate term of 81½ to 163 years’

imprisonment, albeit absent any mandatory minimum sentences. No

appeal was filed following the resentencing.

On December 19, 2017, Appellant filed a timely, pro se PCRA petition,

asserting multiple claims of trial counsel’s ineffectiveness. J. Richard

Robinson, Esquire, was appointed as PCRA counsel. On May 21, 2018,

Attorney Robinson filed a motion for continuance and supplemental

PCRA petition, in which he raised a claim that “[p]rior counsel was

ineffective in failing to assert or allege [S.M.] did recant her testimony

and prior statement that [Appellant] committed the acts upon” her.

Appellant’s Second Motion for Continuance and Supplemental Petition

Pursuant to the Post Conviction Collateral Relief Act, 5/21/18, at 3. The

document also stated that Appellant would call S.M., Attorney Holt,

and himself as witnesses at a PCRA hearing. Id. at 3-4.

The PCRA court conducted an evidentiary hearing on August 20, 2018.

Attorney Robinson stated he was not proceeding on two of the

ineffectiveness claims raised in Appellant’s pro se petition — trial

counsel’s ineffectiveness for failing to request an interpreter and for

7 See Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) (Section 9718 is

failing to poll the jury. N.T. PCRA H’rg, 8/20/18, at 5. The only two

witnesses who testified at the hearing were S.M. and Appellant himself;

Appellant did not call any of his purportedly deficient prior attorneys

to testify. At the conclusion of the hearing, the PCRA court denied all

relief. See id. at 37; Order, 8/20/18. Appellant filed an appeal to this

Court, listing all three docket numbers on his notice of appeal.

While that appeal was pending, on July 15, 2019, Appellant filed a

petition for relief, asserting Attorney Robinson was ineffective for

failing to “properly raise issues” in the PCRA court, or “properly

amend” Appellant’s petition. See Appellant’s Petition for Relief

Pursuant to Pa.R.A.P. 123, 7/15/19, at 1, 4. Notably, Appellant pointed

out that Attorney Robinson failed to call Appellant’s prior attorneys as

witnesses at the hearing. Id. at 4. The PCRA court summarily dismissed

the filing, which it properly construed to be a serial PCRA petition,

because Appellant’s appeal from the denial of relief with regard to his

first petition was pending before this Court. Order, 8/26/19.

On October 18, 2019, this Court quashed Appellant’s appeals from the

August 26th order denying PCRA relief, after determining his single

notice of appeal violated the Pennsylvania Supreme Court’s ruling in

Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (separate

notices of appeal must be filed when a single order resolves issues

arising on more than one trial court docket). See Commonwealth v.

Martinez, 1558 EDA 2018, 1559 EDA 2018, 1560 EDA 2018 (unpub.

memo. at 5) (Pa. Super. Oct. 18, 2019), appeals denied, 703 MAL 2019,

704 MAL 2019, 705 MAL 2019 (Pa. Apr. 28, 2020). Subsequently, on

April 28, 2020, the Pennsylvania Supreme Court denied Appellant’s

petitions for allowance of appeal. See id.

On May 26, 2020, Appellant filed a serial PCRA petition, requesting

reinstatement of his right to appeal the denial of his first PCRA petition.

See Appellant’s Post Conviction Relief Act Petition, 5/26/20, at 14.

Appellant asserted Attorney Robinson rendered ineffective assistance

when he failed to properly file separate notices of appeal. See id. at 9-

10. On June 11, 2020, the PCRA court entered an order granting

Appellant relief. Specifically, the court reinstated Appellant’s right to

appeal from the August 26, 2018, order denying first PCRA petition,

and appointed Aaron Holt, Esquire, as PCRA counsel. See Order,

6/11/20. On June 24, 2020, Attorney Holt filed three separate notices

of appeal nunc pro tunc, one at each trial court docket.8

Counsel’s Turner/Finley brief addresses the following claims on

appeal:

1. Did the [PCRA] Court err when it held that Trial

Counsel was not ineffective and therefore [Appellant]

was not entitled to relief for failing to have an

interpreter appointed for [Appellant]?

2. Did the PCRA Court err when it held that Trial

Counsel was not ineffective and therefore [Appellant]

was not entitled to relief for failing to inform

[Appellant] that the sentences for the charges in this

matter could be run consecutively when advising

[Appellant] regarding accepting a plea bargain?

3. Did the PCRA Court err when it held that Trial

Counsel was not ineffective and therefore [Appellant]

was not entitled to relief, for failing to impeach a

witness with prior inconsistent statements?

4. Did the PCRA Court err when it held that Trial

Counsel was not ineffective and therefore [Appellant]

was not entitled to relief, when Trial Counsel failed to

poll the jury?

5. Did the PCRA Court err when it held that Appellate

Counsel was not ineffective and therefore [Appellant]

was not entitled to relief, when Counsel failed to raise

issues that were preserved for appeal by Trial

Counsel?

6. Did the PCRA Court err when it held that the Re-

Sentencing Court did not impose an illegal sentence

when it failed to merge certain chares for sentencing

purposes?

8 Appellant complied with the PCRA court’s directives and filed three, identical statement of

7. Did the PCRA court err when it declined to consider

[Appellant’s] second PCRA Petition, as he had

appealed the denial of his first petition and therefore

the PCRA Court lacked jurisdiction?9

In a Memorandum Opinion filed April 14, 2021, the Superior Court

affirmed, finding counsel properly complied with the procedural requirement of

Turner/Finley, and that the issues Petitioner sought to pursue on appeal were

without merit.10

Presently before the Court for review is Martinez’ federal petition, in which

he raises the following issues of ineffective assistance of counsel:

1. Trial counsel rendered ineffective assistance of counsel for failing

to present and communicate to petition two plea offers offered by the

Commonwealth, denying Petitioner his Sixth and Fourteenth

Amendment rights to effective assistance of counsel.

2. Trial counsel and PCRA counsel were ineffective for failing to object

or raise Petitioner’s resentence as vindictive in violation of North

Carolina v. Pearce, 395 U.S. 711 (1969).11

For relief, Petitioner requests this Court “vacate Petitioner’s sentence and

remand for sentencing less the amount of the mandatory-minimums, or in the

alternative, grant Petitioner an evidentiary hearing so that he may be able to prove

sentencing and PCRA counsels’ ineffectiveness.12

9 Doc. 18-1 at 3-9.

10 Id.

11 Doc. 1.

II. DISCUSSION

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

mechanism for a prisoner to challenge the “fact or duration” of his confinement.13

Petitioner’s case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). 28

U.S.C. § 2254, provides, in pertinent part:

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

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

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

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

or treaties of the United States.

...

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

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

court proceedings unless the adjudication of the claim—

(1) unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

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

determination of the facts in light of the evidence presented in

the State court proceeding....14

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

a writ of habeas corpus on behalf of a state prisoner.15 A federal court may

consider a habeas petition filed by a state prisoner only “on the ground that he is in

13 Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973).

14 28 U.S.C. § 2254.

15 Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d

custody in violation of the Constitution or laws or treaties of the United States.”16

This limitation places a high threshold on the courts. Typically, habeas relief will

only be granted to state prisoners in those instances where the conduct of state

proceedings resulted in a “fundamental defect which inherently results in a

complete miscarriage of justice” or was completely inconsistent with rudimentary

demands of fair procedure.17

Finally, a federal habeas court may not consider a petitioner’s claims of

state law violations; review is limited to issues of federal law.18

A. Merits Analysis

Under the AEDPA, federal courts reviewing a state prisoner’s application

for a writ of habeas corpus may not grant relief “with respect to any claim that was

adjudicated on the merits in State court proceedings” unless the claim (1) “resulted

in a decision that was contrary to, or involved an unreasonable application of,

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

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

determination of the facts in light of the evidence presented in the State court

16 28 U.S.C. § 2254(a).

17 See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994).

18 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions.”); Pulley v.

Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a

perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state

proceeding.”19

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

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

systems, and not as a means of error correction,”20 “[t]his is a difficult to meet and

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

the benefit of the doubt.”21 The burden is on Martinez to prove entitlement to the

writ.22

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

contradicts the governing law set forth in [Supreme Court] cases” or “if the state

court confronts a set of facts that are materially indistinguishable from a decision

of [the Supreme] Court and nevertheless arrives at a result different from [Supreme

Court] precedent.”23 “[A] state court decision reflects an ‘unreasonable application

of such law’ only ‘where there is no possibility fairminded jurists could disagree

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

standard the Supreme Court has advised is ‘difficult to meet’ because it was ‘meant

to be.’ [Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770.

As the Supreme Court has cautioned, an ‘unreasonable application of federal

law is different from an incorrect application of federal law,’ Richter, 562 U.S. at

19 28 U.S.C. § 2254(d).

20 Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted),

21 Cullen, 563 U.S. at 181(internal quotation marks and citation omitted).

22 Id.

101, 131 S.Ct. 770 (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and

whether we ‘conclude[ ] in [our] independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly’ is

irrelevant, as AEDPA sets a higher bar. Williams, 529 U.S. at 411, 120 S.Ct.

1495.”24 A decision is based on an “unreasonable determination of the facts” if the

state court’s factual findings are objectively unreasonable in light of the evidence

presented to the state court.25

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

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

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

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

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

B. Ineffective Assistance of Counsel

Martinez raises two ineffective assistance of counsel claims. The clearly

established ineffective assistance of counsel standard as determined by the

Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the familiar

two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464 F.3d 423,

438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123

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

Strickland test qualifies as “clearly established Federal law, as

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

24 Mathias v. Superintendent Frackville, SCI, 876 F.3d 462, 476 (3d Cir. 2017).

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

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

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

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

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

measure of attorney performance remains simply reasonableness under

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

is deferential:

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time. Because of the difficulties inherent in

making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally

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

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

defendant shows that particular errors of counsel were

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

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

habeas petitioner must show that he was prejudiced by

counsel’s deficient performance. Id. at 693, 104 S.Ct. 2052.

To establish prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694,

104 S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the ultimate

focus of inquiry must be on the fundamental fairness of the

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

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

breakdown in the adversarial process that our system counts on to

produce just results.” Id. at 696, 104 S.Ct. 2052.26

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.’ ”27 “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.”28

The Superior Court stated that the proper standard governing ineffective

assistance of counsel claims is as follows:

In order to overcome that presumption, “a PCRA petitioner must plead

and prove that: (1) the legal claim underlying the ineffectiveness claim

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

reasonable basis designed to effectuate petitioner’s interest; and, (3)

counsel’s action or inaction resulted in prejudice to petitioner.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

In determining whether counsel had a reasonable basis, the issue is not

“whether there were other more logical courses of action which counsel

could have pursued[,]” but “whether counsel’s decisions had any

reasonable basis.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa.

2014) (citations omitted). If it is a matter of strategy, we will not find a

lack of reasonable basis unless “an alternative not chosen offered a

potential for success substantially greater than the course actually

pursued.” Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). In

order to demonstrate prejudice, “a petitioner must show that there is a

reasonable probability that, but for counsel’s actions or inactions, the

result of the proceeding would have been different.” Mason, supra at

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

27 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)).

389. All three prongs of the test must be satisfied in order for a

petitioner to be entitled to relief. Id.29

The United States Court of Appeals for 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.30 Therefore, the Court finds that the Superior Court’s decision is not

contrary to Strickland.

I also consider whether the state courts’ disposition of Petitioner’s

ineffective assistance of counsel claims involved an unreasonable application of

Strickland or resulted in a decision based on an unreasonable determination of the

facts in light of the evidence presented in the state courts.

1. Trial counsel was ineffective in failing to convey plea offers.

Martinez argues that “trial counsel received two plea offers from the

Commonwealth’s Assistant District Attorney, Charles Murphy, prior to trial which

he never presented to Petitioner, and which obviously had lapsed or expired.”31 As

a general rule, defense counsel has the duty to communicate formal offers from the

prosecution, and failure to do so may constitute constitutionally deficient

performance by counsel.32 To demonstrate Strickland prejudice as a result of such

29 Commonwealth v. Diaz, 1965 EDA 2019 at 5-6, 237 A.3d 436, 2020 WL 2200741 (Pa.

Super. 2020) (unpublished memorandum).

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

31 Doc. 1 at 8.

failure, the defendant “must show that but for the ineffective advice of counsel

there is a reasonable probability that the plea offer would have been presented to

the court (i.e., that the defendant would have accepted the plea and the prosecution

would not have withdrawn it in light of intervening circumstances), that the court

would have accepted its terms, and that the conviction or sentence, or both, under

the offer's terms would have been less severe than under the judgment and sentence

that in fact were imposed.”33

Here, the record supports a finding that Martinez is quite mistaken that he

was unaware of the plea offer as the Commonwealth’s offers were placed on the

record prior to trial, and in his presence, as follows:

ATTORNEY MURPHY: Your Honor, the next matters before the

Court are Commonwealth versus Angel Martinez, Case Number 2199

of 2012 , 1838 of 2013 , and 1839 of 2013 . This is the time and date

set for a criminal jury trial. The Defendant is present represented by

Attorney Neiderhiser. I believe we are both ready and prepared to pick

a jury. Prior to doing that, Commonwealth would like to put a few

things on the record.

First thing would be that Defendant has not requested and Attorney

Neiderhiser has determined he is not in need of a Spanish interpreter,

as well as Commonwealth did make an offer in this case, actually two

offers. Based on the three cases together, if I did my math correctly, the

Defendant is facing mandatories that could reach up to 50 to a hundred

years based on the charges and ages of the victims The two offers

provided by the Commonwealth were 20 years to 40 years and 15 to 50

years.

THE COURT: Okay.

ATTORNEY MURPHY: So that is on the record.

THE COURT: All right. Thank you . Mr. Martinez?

THE DEFENDANT: Yes, sir.

THE COURT: You don’t think you need an interpreter?

THE DEFENDANT: No, sir.

THE COURT: Okay. If at any point in the proceeding you come to

feel, you know what, I made a mistake, I need an interpreter, you let

your lawyer know, and we will make that happen right away. Okay?

THE DEFENDANT: Okay.

THE COURT: All right. Defense, do you need to put anything on the

record at this point?

ATTORNEY NEIDERHISER: Not at this time, Your Honor, no.34

On appeal, the Superior Court addressed Petitioner’s claim as follows:

Next, Appellant insists trial counsel was ineffective for failing to inform

him his sentences could be imposed consecutively while advising him

regarding a plea offer. At the beginning of Appellant’s jury trial, the

Commonwealth informed the trial court that it made two offers to

Appellant, “20 years to 40 years and 15 to 50 years.” N.T., Jury Trial,

at 3. There was no further discussion of the plea offers. Nevertheless,

during the PCRA hearing, Appellant testified that trial counsel never

informed him his sentences could be imposed consecutively, and never

told him about a plea offer. N.T., PCRA Hrg, at 24-25. However, he

acknowledged he was not “planning on plead[ing] guilty.” Id. at 29.

When a petitioner argues counsel’s ineffectiveness caused him to reject

a plea offer, he must demonstrate

[b]ut for the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to

the court (i.e., that the defendant would have accepted the

plea and the prosecution would not have withdrawn it in light

of intervening circumstances), that the court would have

accepted its terms, and that the conviction or sentence, or both,

under the offer's terms would have been less severe than under

the judgment and sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super.

2015)(emphasis added), quoting Lafler v. Cooper, 566 U.S. 156, 164

(2012).

Here, by testifying he did not plan to plead guilty, Appellant has

failed to demonstrate that but for counsel’s ineffectiveness, he would

have accepted the Commonwealth’s plea offer. See N.T., PCRA

H’rg, at 29. Thus, this claim warrants no relief. See Steckley, 128 A.

3d at 832.35

Petitioner has also failed to present any additional evidence showing his

trial counsel failed to convey a plea offer to him.36 Moreover, Martinez has failed

to establish the prejudice articulated by the Supreme Court in Lafler v. Cooper. As

such, his ineffective assistance of counsel claim on this basis lacks merit.

2. Sentencing counsel and PCRA counsel were ineffective for

failing to object or raise Petitioner’s resentence as vindictive

in violation of North Carolina v. Pearce, 395 U.S. 711 (1969).

Petitioner’s second claim is that sentencing counsel and PCRA counsel

“rendered ineffective assistance of counsel for failing to raise sentencing counsel’s

ineffectiveness where sentencing counsel failed to object to the vindictive sentence

35 Doc. 18-1 at 11-12.

36 See Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (federal habeas petition has burden of proving

his claim); Goins v. Brierly, 464 F.2d 947, 949 (3d Cir. 1972) (habeas petitioner must prove

imposed by the sentencing court in violation of North Carolina v. Pearce, 395 U.S.

711 (1969).”37 Specifically, Petitioner states that:

On February 3, 2017, Petitioner was resentenced after he was granted

relief by the Pennsylvania Superior Court due to his sentence being in

violation of Alleyne v. United States, 570 U.S. 99 (2013). Petitioner

was originally sentenced to 81½ to 163 years of incarceration and upon

the Superior Court finding that Petitioner’s sentence was illegal

pursuant to Alleyne, the Superior Court vacated Petitioner’s sentence

and remanded for resentencing. At resentencing, the sentencing court

resentenced Petitioner to the very same sentence without putting on the

record why it gave the same sentence when the sentence should have

been reduced less the mandatory minimums.38

The Due Process Clause prohibits judicial vindictiveness against a defendant

“for having successfully attacked his first conviction ... in the sentence he receives

after a new trial.”39 The presumption of vindictiveness “may be overcome only by

objective information in the record justifying the increased sentence.”40 The burden

of proof falls on the prosecutor or sentencing tribunal when the presumption of

vindictiveness applies.41 The presumption of vindictiveness is not triggered “when

the aggregate sentence is less than that originally imposed....”42 “When there is no

such reasonable likelihood [of judicial vindictiveness], the burden remains upon the

defendant to prove actual vindictiveness.”43

37 Doc. 1 at 23.

38 Id.

39 Alabama v. Smith, 490 U.S. 794, 798 (1989) (quoting North Carolina v. Pearce, 395 U.S.

711, 725 (1969) ).

40 Wasman v. United States, 468 U.S. 559, 565 (1984).

41 Id. at 569.

42 United States v. Nerius, 824 F.3d 29, 32 (3d Cir. 2016) (quoting Kelly v. Neubert, 898 F.2d

15, 16, 18 (3d Cir. 1990) ).

In Pennsylvania, the trial court, as a matter of law, has discretion to modify

its own sentence in response to a motion for reconsideration of sentence.44 However,

any increase in sentence cannot be the result of judicial vindictiveness.45 “[I]n the

absence of a presumption of vindictiveness, the defendant must affirmatively prove

actual vindictiveness.”46

At the initial sentencing, the trial judge imposed a sentence of 81½ to 163

year sentence that included mandatory minimum terms. Thereafter, on October 14,

2016, the Superior Court vacated Petitioner’s sentences, concluding that the

mandatory minimum terms imposed pursuant to Section 9718 were

unconstitutional under Alleyne. On February 3, 2017, the trial court resentenced

Petitioner to the same aggregate term of 81½ to 163 years, absent any mandatory

minimum sentences.

In denying Petitioner’s illegal sentence claim, the Superior Court found

the following:

Next, Appellant contends the trial court imposed an illegal sentence at

the resentencing hearing, when it failed to merge convictions for

sentencing purposes. Although Appellant does not specify which

convictions should have merged, “we note that merger is a nonwaivable

challenge to the legality of i) the sentence.’ Commonwealth v.

Pettersen, 49 A.3d 903, 911 (Pa. Super. 2012). Such claims are ‘never

waived and may be the subject of inquiry by an appellate court sua

sponte.” Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super.

2002), aff'd, 839 A.2d 184 (Pa. 2003).

44 See Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007) (en banc).

45 Commonwealth v. Greer, 554 A.2d 980, 987 n. 7 (Pa. Super. 1989) (applying Pearce, 395

U.S. 711).

The statute governing the merger of convictions for sentencing

purposes states:

No crimes shall merge for sentencing purposes unless the

crimes arise from a single criminal act and all of the statutory

elements of one offense are included in the statutory elements

of the other offense. Where crimes merge for sentencing

purposes, the court may sentence the defendant only on the

higher graded offense.

42 Pa.C.S. § 9765 (emphasis added).

Upon our review of the record, including the trial court’s statements at

both Appellant’s original sentencing on March 27, 2014, and his

resentencing on February 3, 2017, we conclude no relief is warranted.

Indeed, each victim testified that Appellant sexually assaulted her on

multiple occasions. See N.T., Jury Trial, at 129-31 (S.M. testifying

Appellant assaulted her “two or three times a week’ from ages 11 to

14); 144, 149 (Kr.M testifying Appellant raped her “every other week”

from the ages of 14 to 17); 174-75, 178-80 (Ka.M. testifying Appellant

sexually assaulted her “more than once” beginning when she was “11

or 12,” and did so “[w]henever he felt like it”). Further, the court’s

comments at the sentencing hearings reveals it was cognizant of merger

principles, but concluded the crimes did not merge because they either

involved separate acts, or had different statutory elements. See

Sentencing Order, 3/27/14, at 19-26; Sentencing Order, 2/3/17, at 11-

20. Thus, Appellant is entitled to no relief.47

Petitioner has failed to establish a claim for ineffective assistance of

sentencing counsel because the Superior Court expressly determined that his claim

of illegal sentence was without merit. Furthermore, the trial court did not increase

Petitioner’s sentence at resentencing and, thus, the “presumption of vindictiveness”

was not triggered.48

47 Doc. 18-1 at 17-18.

This Court finds that counsel’s decision not to object to a meritless claim

and PCRA counsel’s49 decision to forego raising a meritless claim did not violate

professional norms.50 As such, counsel’s failure to object to a meritless claim

could not have prejudiced Petitioner.51 Petitioner is not entitled to habeas relief on

his second claim.

III. 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.’ ”52 “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.”53

49 Additionally, the Court finds that claims of ineffective assistance of PCRA counsel are not

cognizable in federal habeas proceedings. See 28 U.S.C. § 2254(i) (“The ineffectiveness

or incompetence of counsel during Federal or State collateral post-conviction proceedings

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

Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel in

collateral post-conviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755 (1991)

(no constitutional right to counsel on appeal from initial collateral post-conviction

proceedings).

50 See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (“Appealing losing issues ‘runs

the risk of burying good arguments ... in a verbal mound made up of strong and weak

contentions.’ ”) (citations omitted).

51 See Strickland, 466 U.S. 668.

52 Tomlin v. Britton, 448 Fed.Appx. 224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)).

For the reasons set forth in this memorandum opinion, 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.

IV. CONCLUSION

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

habeas corpus.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge