FOOKS v. LUTHER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KHAMAL FOOKS, )

) Civil Action No. 19 – 1105

Petitioner, )

)

v. ) Magistrate Judge Lisa Pupo Lenihan

)

J. LUTHER, Superintendent SCI )

Smithfield, ATTORNEY GENERAL )

OF THE COMMONWEALTH OF )

PENNSYLVANIA, and DISTRICT )

ATTORNEY OF ALLEGHENY

)

COUNTY,

)

)

Respondents.

MEMORANDUM OPINION1

Currently pending before the Court is a Petition for Writ of Habeas Corpus (“Petition”)

filed by Petitioner Khamal Fooks (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF No. 4.)

Petitioner challenges his judgment of sentence imposed on October 5, 2015, after he pled guilty

pursuant to a negotiated plea deal to third-degree murder, criminal conspiracy and firearms not to

be carried without a license at CP-02-CR-0008254-2013 in the Court of Common Pleas of

Allegheny County, Pennsylvania. For the following reasons, the Petition will be denied and a

certificate of appealability will also be denied.

A. Background

Petitioner was charged by Criminal Information in the Court of Common Pleas of

Allegheny County at CP-02-CR-0008254-2013 with one count each of criminal homicide,

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United

States Magistrate Judge conduct proceedings in this case, including the entry of a final judgment. ECF Nos. 17 &

18.

1

robbery with the infliction of serious bodily injury, criminal conspiracy and carrying a firearms

without a license, in connection with the death of victim Roger Griffin. On October 5, 2015,

Petitioner and the Commonwealth agreed to the following guilty plea: (1) the degree of guilt for

the homicide charge would be third-degree murder; (2) the Commonwealth would withdraw the

robbery charge; (3) Petitioner would plead guilty to the remaining charges; and (4) Petitioner

would receive a sentence of twenty (20) to forty (40) years in prison for third-degree murder, and

no further sentence on the remaining charges. The trial court accepted the negotiated plea after

conducting an oral colloquy. On the same date, in accordance with the plea agreement, the trial

court sentenced Petitioner to a term of twenty (20) to forty (40) years in prison for third-degree

murder, with no further penalty for the remaining charges. (Resp’t Exh. 21, ECF No. 14-1,

pp.120-23.)

On January 8, 2016, Petitioner, through Attorney Thomas N. Farrell, filed a petition

pursuant to Pennsylvania’s Post-Conviction Relief Act (“PCRA”) seeking reinstatement of his

post-sentence and appellate rights. (Resp’t Exh. 25, ECF No. 14-1, pp.131-36.) On January 12,

2016, the court issued an order reinstating Petitioner’s post-sentence and appellate rights.

(Resp’t Exh. 27, ECF No. 14-1, p.141.)

On January 19, 2016, Petitioner, through Attorney Farrell, filed Post-Sentence Motions,

nunc pro tunc, claiming that he had received an excessive sentence. (Resp’t Exh. 28, ECF No.

14-1, pp.142-48.) The court denied the motion on January 19, 2016. (Resp’t Exh. 29, ECF No.

14-1, p.149.)

On February 18, 2016, Petitioner, through Attorney Farrell, filed a notice of appeal to the

Superior Court of Pennsylvania, which was docketed at No. 251 WDA 2016. (Resp’t Exh. 30,

ECF No. 14-1, pp.150-67; Resp’t Exh. 34, ECF No. 14-1, pp.176-78.) On March 10, 2016,

2

Attorney Farrell filed a Concise Statement pursuant Pennsylvania Rule of Appellate Procedure

1925(c)(4) asserting that he believed the appeal to be wholly frivolous. (Resp’t Exh. 32, ECF

No. 14-1, pp.169-72.) The trial court issued its opinion on April 18, 2016. (Resp’t Exh. 33, ECF

No. 14-1, pp.173-75.) On May 16, 2016, Attorney Farrell filed with the Superior Court an

Anders Brief and a Motion to Withdraw. (Resp’t Exh. 35, ECF No. 14-1, pp.179-207; Resp’t

Exh. 36, ECF No. 14-1, pp.208-15.) In a Memorandum filed on August 16, 2016, the Superior

Court granted counsel’s motion to withdraw and dismissed the appeal. (Resp’t Exh. 38, ECF

No. 255-61.)

On January 17, 2017, Petitioner filed a pro se PCRA petition. (Resp’t Exh. 39, ECF No.

14-1, pp.262-72.) The PCRA court appointed Attorney Suzanne Swan to represent Petitioner.

(Resp’t Exh. 40, ECF No. 14-1, p.273.) On June 26, 2017, Petitioner, through Attorney Swan,

filed an Amended PCRA petition. (Resp’t Exh. 41, ECF No. 14-1, pp.274-88.) An addendum to

the PCRA was filed by Attorney Swan on July 10, 2017. (Resp’t Exh. 42, ECF No. 14-1,

pp.289-291.) On September 12, 2017, the PCRA court issued its notice of intent to dismiss the

PCRA petition. (Resp’t Exh. 45, ECF No. 14-1, p.311.) The PCRA petition was ultimately

dismissed on November 7, 2017. (Resp’t Exh. 46, ECF No. 14-1, p.312.) An appeal to the

Superior Court followed, which was docketed at 1815 WDA 2017. (Resp’t Exh. 47, ECF No.

14-1, pp.313-21; Resp’t Exh. 51, ECF No. 14-1, pp.333-36.) The PCRA court filed its opinion

on January 24, 2018. (Resp’t Exh. 50, ECF No. 14-1, pp.327-32.) In a Memorandum filed on

August 6, 2018, the Superior Court affirmed the dismissal of the PCRA petition. (Resp’t Exh.

54, ECF No. 14-1, pp.402-14.) On August 29, 2018, Petitioner, through Attorney Swan, filed a

Petition for Allowance of Appeal (“PAA”) with the Supreme Court of Pennsylvania, which was

docketed at 340 WAL 2018. (Resp’t Exh. 55, ECF No. 14-1, pp.415-17; Resp’t Exh. 56, ECF

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No. 14-1, pp.418-69.) The PAA was denied on December 28, 2018. (Resp’t Exh. 58, ECF

No.14-1, p.471.)

Petitioner initiated the instant habeas proceedings on or about August 26, 2019. (ECF

No. 1.) His Petition was docketed on October 11, 2019. (ECF No. 4.) The Respondents filed

their Answer to the Petition on January 31, 2020. (ECF No. 14.)

B. Standard of Review

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

federal habeas court may overturn a state court’s resolution of the merits of a constitutional issue

only if the state court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). The phrase “clearly established Federal law,” as the term is used in section

2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme

Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529

U.S. 362, 365 (2000).

The Supreme Court has identified two scenarios where a state court decision will fall into

section 2254(d)(1)’s “contrary to” clause. First, a state court decision will be “contrary to”

clearly established federal law when the court “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases.” Williams, 529 U.S. at 405. It set forth the following

example where a state court decision would be “contrary to” Strickland v. Washington, 466 U.S.

668 (1984), the familiar clearly established federal law governing ineffective assistance of

counsel claims.

If a state court were to reject a prisoner’s claim of ineffective assistance of

counsel on the grounds that the prisoner had not established by a preponderance

of the evidence that the result of his criminal proceeding would have been

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different, that decision would be ‘diametrically different,’ ‘opposite in character

or nature,’ and ‘mutually opposed’ to our clearly established precedent because

we held in Strickland that the prisoner need only demonstrate a ‘reasonable

probability that . . . the result of the proceeding would have been different.’

Williams, 529 U.S. at 405-06 (internal citations omitted). The Supreme Court said that a state

court decision will also be “contrary to” clearly established federal law if it “confronts a set of

facts that are materially indistinguishable from a decision of this Court and nevertheless arrives

at a result different from our precedent.” Id. at 406.

The Supreme Court has said that under the “unreasonable application” clause of 28

U.S.C. § 2254(d)(1), a state court decision involves an unreasonable application of Supreme

Court precedent “if the state court identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case.”

Williams, 529 U.S. at 407. Under this standard, “a federal habeas court may not grant relief

simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 411. The Supreme Court later expanded on this

interpretation of the “unreasonable application” clause explaining that the state court’s decision

must be “objectively unreasonable,” not merely wrong; even “clear error” will not suffice.

Locklyer v. Andrade, 538 U.S. 63, 75 (2003). “As a condition for obtaining habeas corpus from

a federal court, a state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86, 103 (2011).

5

If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court

decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de

novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent

Graterford SCI, 677 F. App’x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S.

930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal

court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed,

the Third Circuit recently explained that,

[w]hile a determination that a state court’s analysis is contrary to or an

unreasonable application of clearly established federal law is necessary to grant

habeas relief, it is not alone sufficient. That is because, despite applying an

improper analysis, the state court still may have reached the correct result, and a

federal court can only grant the Great Writ if it is “firmly convinced that a federal

constitutional right has been violated,” Williams, 529 U.S. at 389, 120 S.Ct. 1495.

See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301

(2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief

that a prisoner satisfy the AEDPA standard of review . . . none of our post-

AEDPA cases have suggested that a writ of habeas corpus should automatically

issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court

reviewing a habeas petition concludes that the state court analyzed the petitioner’s

claim in a manner that contravenes clearly established federal law, it then must

proceed to review the merits of the claim de novo to evaluate if a constitutional

violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182

L.Ed.2d 398 (2012).

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote

omitted).

The AEDPA further provides for relief if an 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)(2). Under § 2254(d)(2), a state court 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 in the state-court proceeding,”

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which requires review of whether there was sufficient evidence to support the state court’s

factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching

standard, a petitioner may attack specific factual determinations that were made by the state

court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play,

instructing that the state court’s determination must be afforded a presumption of correctness that

the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d

210, 235 (3d Cir. 2004).

C. Discussion

Although Petitioner asserts three separate grounds for relief in his Petition, it appears that

those three grounds are more appropriately construed as one single claim – ineffective assistance

of counsel, which had the effect of producing an unknowing, unintelligent and involuntary plea.2

Respondents submit, and the Court agrees, that the claim was properly exhausted in the state

courts and is therefore properly before this Court.

In Hill v. Lockhart, 474 U.S. 52 (1984), the United States Supreme Court explained that

“[t]he longstanding test for determining the validity of a guilty plea is whether the plea

represents a voluntary and intelligent choice among the alternative courses of action open to the

defendant.” Id. at 56 (internal quotations and citations omitted). Where, as is the case here, the

petitioner entered his plea upon the advice of counsel, the voluntariness of his plea depends on

whether the advice counsel gave “was within the range of competence demanded of attorneys in

criminal cases[,]” id. (internal quotations and citations omitted), and the petitioner must satisfy

2 Petitioner raises the following three claims in his Petition: (1) ineffective counsel, (2) the guilty plea was not

knowingly and voluntarily entered, and (3) ineffective counsel – failure to withdraw guilty plea.

7

the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on his

challenge to his guilty plea. Hill, 474 U.S. at 57-59.

Strickland recognized that a defendant’s Sixth Amendment right to the assistance of

counsel for his defense entails the right to be represented by an attorney who meets a minimal

standard of competence. 466 U.S. at 685-87. “[T]he Sixth Amendment does not guarantee the

right to perfect counsel; it promises only the right to effective assistance[.]” Burt v. Titlow, 571

U.S. 12, 24 (2013). Under Strickland, it is a petitioner’s burden to establish that his “counsel’s

representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This

requires showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. The Supreme Court has emphasized

that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment[.]’” Titlow, 571 U.S. at

22 (quoting Strickland, 466 U.S. at 690); Richter, 562 U.S. at 104 (“A court considering a claim

of ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was

within the ‘wide range’ of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at

689).

Strickland also requires that a petitioner demonstrate that he was prejudiced by his trial

counsel’s deficient performance. This places the burden on him to establish “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. When a petitioner claims that his

counsel’s deficient performance deprived him of a trial by causing him to accept a plea, he “must

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.” Hill, 474 U.S. at 59; see also Vickers

8

v. Superintendent Graterford SCI, 858 F.3d 841, 857 (3d Cir. 2017) (“[W]here a defendant

claims ineffective assistance based on a pre-trial process that caused him to forfeit a

constitutional right, the proper prejudice inquiry is whether the defendant can demonstrate a

reasonable probability that, but for counsel’s ineffectiveness, he would have opted to exercise

that right.”).

In his PCRA petition, Petitioner claimed that his guilty plea was not knowingly and

voluntarily entered into, but unlawfully induced due to the ineffectiveness of trial counsel who

advised and assured him that if he pleaded guilty to third-degree murder in exchange for a 20-40

year sentence, he would only have to serve half of his minimum term before he would be eligible

for parole. He also claimed that his counsel was ineffective for not moving to withdraw the

unknowing, involuntary, and unlawfully induced plea. The PCRA court, in support of its

determination that Petitioner’s petition warranted dismissal, concluded:

Petitioner claims that trial counsel unlawfully induced him into pleading

guilty. The record demonstrates otherwise. The record discloses that Petitioner

understood the nature of the charges to which he plead guilty. The Court

reviewed the charges filed against Petitioner as well as the charge to which he

ultimately pled guilty. The Assistant District Attorney presented a factual basis

for the guilty plea and Petitioner agreed with the presentation of the Assistant

District Attorney. Petitioner completed an exhaustive written plea colloquy

(which is part of the record in this case) clearly evidencing his awareness of his

pertinent constitutional rights including, but not limited to, the presumption of

innocence, his right to a jury trial and the fact that this Court was not bound by the

terms of the plea agreement.

During the plea hearing, Petitioner specifically acknowledged that he was

aware of the maximum penalties that could be imposed on him and, again, that

nobody forced him to enter the plea. The sentence of imprisonment of not less

than 20 years nor more than 40 years was specifically negotiated by Petitioner and

the record indicates that he agreed to that particular sentence. Accordingly, while

Petitioner submitted that he was unlawfully induced into pleading guilty as he did,

the record demonstrates otherwise. On the record and in the written colloquy,

Petitioner acknowledged that no promises had been made to him outside the terms

of the plea agreement as an inducement to plead guilty. He also affirmed that

9

nobody, including his trial counsel, had promised him anything in exchange for

the guilty plea other than the terms of the plea agreement that were placed on the

record. Petitioner stated that he had sufficient time to speak with his counsel and

he was satisfied with trial counsel’s representation. It is clear from the record that

Petitioner understood the charges to which he was pleading guilty, the

constitutional rights he relinquished, the sentence he was to receive and the

benefit he was receiving by accepting the plea agreement. There is no question

that Petitioner bargained for the plea agreement and he received the benefit of that

bargain.

(Resp’t Exh. 50, ECF No. 14-1, pp.331-32.) On appeal, the Superior Court further emphasized

the following testimony at the guilty plea hearing which revealed Petitioner’s agreement to serve

a sentence of imprisonment of 20 to 40 years as a result of the negotiated plea.

THE COURT [addressing the prosecutor]: Is there a plea agreement, Mr.

Broman?

MR. BROMAN: Yes, Your Honor. In return for The Defendant’s plea to third

degree [murder], The Commonwealth has agreed for a 20 to 40 year sentence.

The Commonwealth has agreed to proceed on that [as to count one] and withdraw

count two [for] robbery.

THE COURT: You’re withdrawing count two. You’re keeping [count three for]

conspiracy and [count four for] the firearm charge?

MR. BROMAN: Correct, Your Honor.

THE COURT: The agreement is that The Defendant will plead guilty to third

degree [murder] and that he gets 20 to 40 years for the murder charge?

MR. BROMAN: That’s correct.

THE COURT: Is that your understanding?

MR. THOMASSEY [TRIAL COUNSEL]: It is, Your Honor.

THE COURT: Mr. Fooks, did you understand that The Commonwealth has

agreed to withdraw the [count one] murder charge as it is in the document, but

amend it, so to speak, by qualifying it as murder in the third degree, taking away

the murder one or murder two possibility. Now it’s murder three making that

number 20 to 40 years, withdrawing the robbery, which takes it out of the penalty

of murder by virtue of that and agree to conspiracy and the firearm [violation].

10

You would be pleading guilty to those with no further penalty. Is that what you

agreed to do?

THE DEFENDANT: Yes, sir.

(Resp’t Exh. 54, ECF No. 14-1, pp.408-09) (citing N.T., 10/5/2015, at 5-6.) The Superior Court

also emphasized the representations Petitioner made in the written guilty plea colloquy wherein

he stated that nobody, including his attorney, had promised anything to him in exchange for the

guilty plea other than the terms of the plea bargain and that he understood that he would be

bound by the terms of the plea bargain. Id., at p.410. Finally, the Superior Court noted that at

sentencing Petitioner reaffirmed that he understood his sentence and that he would be

incarcerated for a minimum of 20 years. Id. After citing the applicable law with regard to

ineffective assistance of counsel claims in Pennsylvania, the Superior Court concluded that

Petitioner’s claim lacked arguable merit because nothing in the record supported Petitioner’s

claim that plea counsel represented to him that he would be eligible for parole after serving half

of his minimum sentence and because Petitioner was bound by the statements that he made in the

oral and written plea colloquies, which affirmatively demonstrated his understanding of his

sentence, specifically the fact that he would be incarcerated for a minimum of 20 years. Id., at

pp. 405, 411-412.

Because the Superior Court denied Petitioner’s claim on the merits, this Court’s review of

it is very limited. It is not for this Court to decide whether the Superior Court’s decision was

right or wrong. Rather, under AEDPA’s standard of review, as codified in relevant part at 28

U.S.C. § 2254(d)(1), it is Petitioner’s burden to show that the Superior Court’s adjudication was

“contrary to, or involved an unreasonable application of clearly established Federal law as

determined by the Supreme Court of the United States,” or as codified in relevant part at 28

11

U.S.C. § 2254(d)(2), was an “unreasonable determination of the facts in light of the evidence

presented.” Petitioner has not met his burden as to either.

Here, the “clearly established Federal law” is that which is set forth in Strickland (and its

progeny, such as Hill). See, supra. The Superior Court analyzed Petitioner’s claim under the

three-pronged test for ineffective assistance of counsel claims in Pennsylvania, which requires a

petitioner plead and prove: “(1) the underlying claim was of arguable merit; (2) counsel had no

reasonable strategic basis for his action or inaction; and (3) the petitioner was prejudiced – that

is, but for counsel’s deficient stewardship, there is a reasonable likelihood the outcome of the

proceedings would have been different.” 3 (Resp’t Exh. 54; ECF No. 14-1, p.405) (citing

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015)). The Superior Court concluded

Petitioner’s claim failed on the first prong, that it lacked arguable merit.4 The Third Circuit has

held that this three-prong standard utilized by Pennsylvania courts is not “contrary to”

Strickland, the standard enunciated by the United States Supreme Court in judging

ineffectiveness claims, see Wertz v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000), and given that

the state court applied a standard that does not contradict Strickland, and the fact that the Court is

unaware of a case with materially indistinguishable facts where the Supreme Court arrived at the

opposite result, the Superior Court’s adjudication of this claim satisfies review under the

3 Pennsylvania law for judging ineffectiveness corresponds with the Strickland standard. Commonwealth v. Pierce,

527 A.2d 973, 976-77 (Pa. 1987); Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). Although Pennsylvania

courts typically articulate a three-prong test for gauging ineffective assistance claims and Strickland sets forth its test

in two prongs, the legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of

state courts.

4 “The [arguable merit] prong is a threshold test requiring the court to determine if the issue underlying the

ineffective assistance claim has arguable merit. Only if the underlying claim has merit does a Pennsylvania court go

on to assess whether counsel’s performance was constitutionally ineffective and whether defendant was prejudiced

thereby, as required by Strickland v. Washington, 466 U.S. 668, 687 (1984).” Sistrunk v. Vaughn, 96 F.3d 666, 669

(3d Cir. 1996) (citing Commonwealth v. McNeil, 487 A.2d 802, 806 (1985)).

12

“contrary to” clause of § 2254(d)(1). See Williams, 529 U.S. at 406 (a “run-of-the-mill” state-

court decision applying the correct legal rule from Supreme Court decisions to the facts of a

particular case does not fit within § 2254(d)(1)’s “contrary to” clause and should be reviewed

under the “unreasonable application” clause). The inquiry now becomes whether its decision

was an objectively unreasonable application of that law.

Under the “unreasonable application” provision of § 2254(d)(1), the appropriate inquiry

is whether the state courts’ application of Strickland to a petitioner’s ineffectiveness claim was

objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits,

resulted in an outcome that cannot reasonably be justified under Strickland. To satisfy his

burden under § 2254(d)(1), a petitioner must do more than convince this Court that the Superior

Court’s decision denying a claim was incorrect. Dennis v. Secretary, Pennsylvania Department

of Corrections, 834 F.3d 263, 281 (3d Cir. 2016). He must show that it “‘was objectively

unreasonable.’” Id. (quoting Williams, 529 U.S. at 409). This requires that he establish that the

state court’s decision “was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,

562 U.S. at 103.

Here, the Superior Court’s determination that Petitioner’s claim lacked arguable merit,

and therefore there could be no finding that his counsel rendered ineffective assistance in the

manner claimed, was not an unreasonable application of Strickland and its progeny. First, there

was nothing in the record to support Petitioner’s claim that plea counsel represented to him that

he would only have to serve half of his minimum term before he would be eligible for parole if

he accepted the negotiated plea. Indeed, the certification attached to Petitioner’s Amended

PCRA petition filed by Attorney Swan did not even support Petitioner’s claim that plea counsel

13

advised him that he would only have to serve half of his minimum sentence. See (Resp’t Exh.

54, ECF No. 14-1, p.412) (noting that per the certification, plea counsel only stated that he would

testify that he would have had no reasonable basis for failing to seek withdrawal of the plea “if

he knew that Mr. Fooks erroneously believed he would only have to serve half of his

minimum sentence, and that he would not have pleaded guilty if he knew he had to serve all of

his minimum sentence.”) (emphasis in original). Furthermore, Petitioner confirmed on the

record both at his oral plea colloquy and in his written plea colloquy that he understood his

sentence, including the fact that he would have to serve a minimum of 20 years of imprisonment,

and that nobody, including his attorney, promised him anything in exchange for pleading guilty.

This was not an “objectively unreasonable” application of Strickland and its progeny.

Finally, Petitioner also has not met his burden under § 2254(d)(2) by demonstrating that

the Superior Court’s adjudication of his claim was an unreasonable determination of the facts in

light of the state court record, which included both the written and oral plea colloquies,

Petitioner’s confirmations that he understood that he would serve a minimum of 20 years

imprisonment and that nobody made any promises to him about what his sentence would be

other than what was included in the plea agreement. The Superior Court had before it the

requisite evidence necessary for its adjudication to withstand review under § 2254(d)(2)’s

deferential standard.

D. Conclusion

Based on the aforementioned reasons, the Petition will be denied and a certificate of

appealability will also be denied because jurists of reason would not find it debatable that

Petitioner’s claim lacks merit. See 28 U.S.C. § 2253 (“A certificate of appealability may issue . .

. only if the applicant has made a substantial showing of the denial of a constitutional right.”);

14

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (Where the district court has rejected a

constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.”). A

separate Order will issue.

Dated: May 13, 2021.

Lisa Pupo Lenihan

United States Magistrate Judge

Cc: | Khamal Fooks

MJ8861

SCI Forest

P.O. Box 945

286 Woodland Drive

Marienville, PA 16239

Counsel of Record

(via CM/ECF electronic mail)

15

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KHAMAL FOOKS, )

) Civil Action No. 19 — 1105

Petitioner, )

)

Vv. ) Magistrate Judge Lisa Pupo Lenihan

)

J. LUTHER, Superintendent SCI )

Smithfield, ATTORNEY GENERAL )

OF THE COMMONWEALTH OF )

PENNSYLVANIA, and DISTRICT )

ATTORNEY OF ALLEGHENY )

COUNTY, )

Respondents. )

ORDER

AND NOW, this 13th day of May 2021;

IT IS HEREBY ORDERED that, for the reasons set forth in the accompanying

Memorandum Opinion, the Petition for Writ of Habeas Corpus (ECF No. 4) is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of

Respondents and mark this case CLOSED.

AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1)(A) of the Federal

Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as

provided by Rule 3 of the Federal Rules of Appellate Procedure.

GFOKM

Lisa Pupo Lenihan

United States Magistrate Judge

Cc: | Khamal Fooks

MJ8861

16

SCI Forest

P.O. Box 945

286 Woodland Drive

Marienville, PA 16239

Counsel of Record

(via CM/ECF electronic mail)

17