TORRES-OLAN v. ATTORNEY GENERAL OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

SANTOS D. TORRES-OLAN, )

) 1:22-CV-00019-RAL

Petitioner )

) RICHARD A. LANZILLO

VS. ) Chief United States Magistrate Judge

)

ATTORNEY GENERAL OF ) MEMORANDUM OPINION ON

PENNSYLVANIA, SUPERINTENDENT ) PETITION FOR WRIT OF HABEAS

OF SCI-HUNTINGDON, AND DISTRICT ) CORPUS

ATTORNEY OF ERIE COUNTY, )

) ECF NO. 5

Respondents )

)

Before the Court is a pro se Petition for a Writ of Habeas Corpus filed under 28 U.S.C.

§ 2254 (ECF Nos. 5, 27) by Santos D. Torres-Olan, an individual incarcerated at the State

Correctional Institution at Mahoney.’ Torres-Olan challenges the judgment of sentence imposed

by the Court of Common Pleas of Erie County at criminal docket number CP-25-CR-0001888-

2015 on four grounds. ECF No. 5. For the following reasons, the Court will grant the petition as

to Claim | and decline to reach the merits of the remaining claims.’

I. Factual and Procedural Background

In April 2015, the Commonwealth charged Torres-Olan with 12 offenses relating to a 911

caller’s report that a man had fired a gun at her feet and Torres-Olan’s interaction with police

' 28 U.S.C. § 2254(a) confers jurisdiction upon this Court to hear a petition for writ of habeas corpus filed by an

individual who claims to be in custody pursuant to a state court judgment in violation of the Constitution of the United

States.

2 The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).

officers during the ensuing investigation and arrest. For reasons set forth more fully below, Torres-

Olan acted as his own counsel at trial. A jury ultimately found him guilty of two counts of

terroristic threats and one count each of carrying a firearm without a license and possession of a

firearm with an altered manufacturer’s number. The Pennsylvania Superior Court recounted the

procedural history of the case, including the circumstances that resulted in Torres-Olan’s self-

representation, as follows:

Nicole Sloane, Esquire (“Attorney Sloane”), of the Public

Defender’s Office, began representing Torres-Olan shortly after he

was charged, and the case was held over to the court of common

pleas in July 2015 ...In September 2015, Attorney Sloane filed a

petition for leave to withdraw as counsel asserting that Torres-Olan

“forfeited” his right to counsel due to his abusive and uncooperative

conduct. See Petition for Leave to Withdraw as Counsel, 9/10/15, at

2 (unnumbered). The trial court held a hearing on Attorney Sloane’s

petition to withdraw, found that Torres-Olan forfeited his right to

appointed counsel, and, following a brief colloquy, concluded that

his decision to waive his right to counsel was knowing and

voluntary. See N.T. Leave to Withdraw as Counsel Hearing,

9/28/15, at 5-6; see also Order, 9/28/15. Subsequently, at Torres-

Olan’s request, the trial court appointed Garrett Taylor, Esquire, as

standby counsel (“standby counsel’’).

Torres-Olan proceeded to a jury trial with standby counsel.

The Commonwealth, without objection, played a recording of the

911 call that initiated the police response. See N.T. Trial Day 1,

2/12/16, at 45. The Commonwealth also called the officers who

responded to the call and investigated the incident. The jury found

Torres-Olan guilty of two counts of terroristic threats and one count

each of firearms not to be carried without a license and possession

of a firearm with an altered manufacturer’s number. Torres-Olan

filed post-trial motions for judgments of acquittal and a new trial,

which the trial court denied. The trial court imposed consecutive

sentences totaling 115 to 230 months of imprisonment. Torres-Olan

filed a post-sentence motion to modify the sentence, which the trial

court denied.

Commonwealth vy. Torres-Olan, 2022 WL 17348874, at *2 (Pa. Super. Ct. Dec. 1, 2022).

At some point thereafter, Torres-Olan had his direct appeal rights reinstated and filed an

appeal with the assistance of William Hathaway, Esquire, as his appointed counsel. /d. The

Superior Court affirmed Torres-Olan’s judgment of sentence and the Pennsylvania Supreme Court

denied his allowance of appeal. /d. Torres-Olan responded by filing a pro se petition pursuant to

the Pennsylvania Post Conviction Relief Act (“PCRA”) challenging, in part, “the adequacy of the

trial court’s colloquy when granting Attorney Sloane leave to withdraw and permitting him to

proceed pro se.” /d. The PCRA court conducted a hearing “limited to the issues of the adequacy

of the trial court’s waiver of counsel colloquy and Attorney Hathaway’s failure to raise the claim

on direct appeal.” Id. (emphasis added). After hearing testimony from Torres-Olan and Attorneys

Sloane and Hathaway, the PCRA court denied Torres-Olan’s PCRA petition on August 25, 2021.

Td.

Torres-Olan testified at the PCRA hearing that he believed the trial court committed

reversable error when it failed to give him the colloquy required by Rule 121 of the Pennsylvania

Rules of Criminal Procedure before it determined that he knowingly and voluntarily waived his

right to counsel. He further testified that he asked Attorney Hathaway to raise this issue on direct

appeal. ECF No. 31 at 9-11, 19.

Attorney Hathaway confirmed that Torres-Olan asked him to raise the Rule 121 error claim

on direct appeal. /d. at 46-48. Initially, Attorney Hathaway could not specifically recall why he

did not do so, but said he assumed it was because he did not believe the claim had merit. /d. He

then testified that “what’s transpired here today kind of brings back to my mind my review of

things. It essentially was a breakdown in attorney/client relationship and that Mr. Torres-Olan

didn’t have a right to shop for an attorney. And I believe [the trial court] pursued a standard

process in terms of protecting his rights. And, in fact, went to the extreme measure of appointing

standby counsel in the form of Attorney Taylor.” Jd. at 46.

Following the hearing, the PCRA court denied Torres-Olan’s claim that Attorney

Hathaway was ineffective in failing to raise the issue of a defective Rule 121 colloquy because it

determined that “the trial court properly found that Torres-Olan forfeited his right to counsel and

there was no need for a Rule 121 colloquy.” Torres-Olan, 2022 WL 17348874, at *5. Thus, the

PCRA court concluded, Attorney Hathaway could not be found to be ineffective for failing to raise

a meritless claim on direct appeal. See also id. (“When a defendant waives the right to counsel,

Rule 121 requires a thorough colloquy to ensure the defendant’s waiver is knowing, intelligent,

and voluntary... The forfeiture of the right to counsel is distinct from waiver.... When a defendant

forfeited the right to counsel, a court need not engage in a Rule 121 colloquy.”)

On appeal, the Superior Court acknowledged that the PCRA Court had construed Torres-

Olan’s petition for post-conviction relief to include a claim of ineffective assistance of appellate

counsel based on Attorney Hathaway’s failure to raise the adequacy of the trial court’s pro se

colloquy on direct appeal. The Superior Court also noted that the PCRA Court had conducted a

hearing on that issue. On independent review, the Superior Court addressed, among other issues,

whether the trial court erred “in failing to ensure that [Torres-Olan] received a proper colloquy

prior to [Attorney Sloane] withdrawing from the case, and thus violat[ed] his right to counsel.”?

The second and third issues raised in Torres-Olan’s PCRA petition were:

Did the court err in ruling that [Torres-Olan’s] right to confront his accuser was not violated when

a 911 recording was introduced at trial without [Torres-Olan] being able to cross-examine and/or

confront the “accusers” in the recording?

Did the court err in ruling that appellate trial counsel was effective when trial counsel failed to raise

arguments on appeal regarding the weight and sufficiency of the evidence and the issue regarding

the 911 tape?

Id. at *3.

Id. at *3. As with the PCRA Court, the Superior Court appeared to address this issue through the

lens of ineffective assistance of direct appellate counsel. /d. at *5 (“The PCRA court concluded

that Attorney Hathaway, Torres-Olan's direct appeal counsel, was not ineffective for failing to

raise the issue of a defective colloquy because the trial court properly found that Torres-Olan

forfeited his right to counsel and there was no need for a Rule 121 colloquy.”). Following its

review of the record, the Superior Court affirmed the PCRA court’s order denying Torres-Olan’s

petition, but on different grounds than that given by the PCRA court . /d. at *4-8. As discussed

below, the Superior Court held that Torres-Olan was not prejudiced by Attorney Hathaway’s

alleged ineffective assistance. /d. Therefore, it addressed only that prong of an ineffective

assistance of direct appeal counsel claim.‘

On July 18, 2023, the Supreme Court of Pennsylvania denied Torres-Olan’s Petition for

Allowance of Appeal. See Commonwealth vy. Torres-Olan, 301 A.3d 866 (Pa. 2023). In the

meantime, on January 18, 2022, and before the Superior Court had issued its decision in Torres-

Olan’s PCRA appeal, Torres-Olan initiated the instant habeas corpus action. ECF No. |. In his

petition, he raises the following four grounds for relief:

(1) The trial court “granted Ms. Sloane’s motion” to withdraw and informed

Torres-Olan “that [he] must proceed pro se” because he “forfeited [his] right to

counsel” without “conduct[ing]| a pro-se colloquy”;

(2) Torres-Olan was denied his right to face his accusers when the trial court denied

his request to cross-examine the DNA expert and allowed the Commonwealth

to play the tape of the 911 caller at trial;

(3) The Commonwealth’s evidence was insufficient to sustain Torres-Olan’s

guilty verdicts for the gun possession charges; and

4 Because a petitioner cannot prevail on an ineffective assistance claim unless he establishes all prongs of the

Strickland y. Washington test (discussed below), the Supreme Court permits courts to address only the prejudice

prong if it is more efficient to proceed in that manner.

(4) Torres-Olan’s “sentencing was compromised” because his prior record score

was too high and the trial court improperly aggregated his sentences and ran

them consecutively instead of concurrently.

ECF No. 5, pp. 5, 7, 10. As part of his first ground for relief, Torres-Olan also contends

that Attorney Hathaway rendered ineffective assistance by failing to challenge the

defective pro se colloquy on direct appeal. /d. at 5.

On May 16, 2022, and before the Superior Court had issued its decision in Torres-Olan’s

PCRA appeal, the District Attorney’s office filed a response to the Petition and submitted copies

of the relevant state court filings and the state court record. See ECF Nos. 11, 13-1 — 13-7, 14, 15,

16. This Court subsequently issued an order directing the Clerk to stay and administratively close

the case pending the outcome of Torres-Olan’s PCRA appeal. See ECF No. 22. After the Superior

Court issued its decision and the Pennsylvania Supreme Court denied a Petition for Allowance of

Appeal, this Court granted Torres-Olan’s motion to reopen the case following the conclusion of

his state court appeal and permitted the parties an opportunity to file supplemental briefs. See ECF

Nos. 23, 24. Torres-Olan submitted a supplemental brief and several exhibits, see ECF Nos. 27-

29, but Respondents declined to file supplemental papers. This matter is now ripe for adjudication.

I. Standard of review

Habeas corpus is an***extraordinary remedy’ reserved for defendants who were ‘grievously

wronged’ by the criminal proceedings.” Dunn y. Colleran, 247 F.3d 450, 468 (3d Cir. 2001)

(quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). In enacting the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Congress “significantly limited the federal court’s

power to grant a writ of habeas corpus.” Tolbert v. Ferguson, 2019 WL 4677357 at *2 (E.D. Pa.

Aug. 8, 2019). Under § 2254, a district court may entertain an application for a writ of habeas

corpus filed by a person in state custody “only on the ground that he is in custody in violation of

the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). Moreover, federal courts

must give considerable deference to determinations made by state trial and appellate courts. See

Renico vy. Lett, 599 U.S. 766, 772 (2010). Thus, if a claim presented in a § 2254 petition has been

adjudicated on the merits in state court proceedings, habeas relief cannot be granted unless:

the adjudication of the claim (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

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

United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254 (d).° It is the habeas petitioner’s burden to show that the state court’s decision

was contrary to or an unreasonable application of United States Supreme Court precedent and/or

an unreasonable determination of the facts. Moreno v. Ferguson, 2019 WL 4192459, at *3 (W.D.

Pa. Sept. 4, 2019).

A state-court decision is “contrary to” clearly established federal law if the state court either

“applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or

“confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and

arrives at a result opposite to [the result reached by the Court].” Bell v. Cone, 543 U.S. 447, 452-

53 (2005) (per curiam) (quoting Williams v Taylor, 529 U.S. 362, 405 (2000). For purposes of §

2254(d)(1), “the phrase ‘clearly established Federal law, as determined by the Supreme Court of

the United States’ .. . refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412 (2000).

That said, “[a] federal court may not overrule a state court for simply holding a view different from

5 When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts.

Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008));

Brown v. Sup’t Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016). Here, that is the Superior Court’s decision issued in

Torres-Olan’s PCRA proceeding.

its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza,

540 U.S. 12, 17 (2003).

A decision involves an “unreasonable application” of clearly established federal law “if the

state court identifies the correct governing legal principle from [the Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 US. at

413. Put differently, under the “unreasonable application” standard, “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

If the petitioner satisfies the requirements of § 2254(d), the federal habeas court “must

proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred.”

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 849 (3d Cir. 2017), as amended (July 18,

2017). “That is because, despite applying an improper analysis, the state court still may have

reached the correct result.” /d. As such, a federal court can only grant habeas relief “if it is ‘firmly

convinced that a federal constitutional right has been violated.’” /d. (quoting Williams, 529 U.S.

at 389).

The United States Court of Appeals for the Third Circuit has emphasized the heavy burden

habeas petitioners bear, noting that “even ‘clear error’ by the state courts “will not suffice.” Orie

v. Sec. Pa. Dept. of Corrections, 940 F. 3d 845, 850 (3d Cir. 2019). Moreover, the factual

determinations of the state courts are presumed correct. See 28 U.S.C. § 2254(e)(1) (‘In 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 made by a State court shall be

presumed to be correct.”). State-court determinations of factual issues are “presumed to be

correct,” and the federal habeas petitioner bears the burden of rebutting this “presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). See also Burt v. Titlow,

571 U.S. 12, 18 (2013). The presumption of correctness under § 2254(e)(1) “applies to the factual

determinations of both state trial and appellate courts,” Duncan v. Morton, 256 F.3d 189, 196 (3d

Cir. 2001), and applies to implicit factual findings “to the same extent as express factual findings,”

Taylor, 504 F.3d at 433. Whether implicit or explicit, a state court’s credibility determinations are

findings of fact entitled to deference under AEDPA. See Rice v. Collins, 546 U.S. 333, 338-39

(2006).

HI. Analysis

A. Timeliness

Before the Court can address the merits of the petition, it must first decide whether it was

timely filed. Romansky v. Superintendent Green SCT, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant

to AEDPA, a state prisoner must file his federal habeas claims within one year of the date his

judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Here, Torres-Olan’s sentence

became final for purposes of the one-year PCRA statute of limitations and the one-year federal

habeas statute of limitations on July 13, 2020, when the Pennsylvania Supreme Court denied his

Petition for Allowance of Appeal from the Superior Court’s decision on direct appeal. See 28

U.S.C. § 2244(d)(1)(A) (the one-year federal limitations period generally begins on the date the

petitioner’s judgment of sentence became final “by the conclusion of direct review or the

expiration of the time for seeking such review”). When Petitioner filed his PCRA petition on

August 3, 2020, however, the one-year habeas statute was “immediately tolled.” Nelson v.

Superintendent of SCI-Retreat, 2019 WL 897296 *2 n.4 (E.D. Pa. Jan. 31, 2019). His PCRA

petition remained pending in the state court system until July 18, 2023, when the Pennsylvania

Supreme Court denied his Petition for Allowance of Appeal from the Superior Court’s affirmance

of the dismissal of his PCRA petition. See Commonwealth v. Torres-Olan, 301 A.3d 866 (Pa. July

18, 2023). The instant 2254 petition, filed well before that date, was timely by almost a full year.

B. Exhaustion

As a general matter, a federal district court may not consider the merits of a habeas petition

unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. §

2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner satisfies the

exhaustion requirement “only if [he or she] can show that [they] fairly presented the federal claim

at each level of the established state-court system for review.” Holloway y. Horn, 355 F.3d 707,

714 (3d Cir. 2004). The purpose of the exhaustion requirement is to “give the state courts a full

and fair opportunity to resolve federal constitutional claims before those claims are presented to

the federal courts ... by invoking one complete round of the State’s established appellate review

process.” O'Sullivan, 526 U.S. at 845.

To “fairly present” a claim for exhaustion purposes, the petitioner must advance the claim’s

“factual and legal substance to the state courts in a manner that puts them on notice that a federal

claim is being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir.

2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may

exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction

PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his

federal constitutional claims “to each level of the state courts empowered to hear those claims.”

Id. at 847 (“requiring state prisoners [in order to fully exhaust their claims] to file petitions for

discretionary review when that review is part of the ordinary appellate review procedure in the

State”). “Once a petitioner’s federal claims have been fairly presented to the state’s highest court,

10

the exhaustion requirement is satisfied.” Svoss v. Estock, 2019 WL 2160464, at *3 (M.D. Pa. May

17, 2019) (citing Castille v. Peoples, 489 U.S. 346, 350 (1989)).

Here, Respondents argue that the Petition must be dismissed as a “mixed petition” because

Torres-Olan did not exhaust Claim | and portions of Claim 4. ECF No. 13, pp. 6, 10. To determine

whether Torres-Olan’s claims have been “fairly presented,” the Court must compare each of the

claims in the instant petition to those raised in state court. With respect to Claims 2, 3, and 4,

Respondents correctly acknowledge that Torres-Olan asserted each during his direct appeal to the

Superior Court. See ECF No. 13, p. 13; Commonwealth v. Torres-Olan, No. 743 WDA 2019, 2019

WL 7372801, at *3 (Pa. Super. Ct. Dec. 31, 2019).° His first claim for relief, however, warrants

further examination.

In his pro se direct appeal, Torres-Olan included a claim that his conviction should be

vacated because the trial court conducted an inadequate pro se colloquy before requiring him to

represent himself. See ECF No. 5, p. 5. His appointed counsel, Attorney Hathaway, declined to

include this issue when he filed Torres-Olan’s counseled brief on direct appeal to the Superior

Court. See ECF No. 27, pp. 5-6. Torres-Olan later asserted the same claim in his appeal to the

Superior Court following the denial of PCRA relief.’ Like the PCRA Court, the Superior Court

construed Torres-Olan’s challenge to the adequacy of the trial court’s pro se colloquy as an

© On direct appeal, Torres-Olan raised the following issues: (1) whether the [trial c]ourt committed an abuse of

discretion in allowing the presentation by the Commonwealth of evidence relating to the 911 call thereby violating

the confrontation clause; (2) whether there was sufficient evidence to sustain the guilty verdicts because no physical

evidence was offered including the fingerprints or DNA of [appellant] linking him to the firearm at issue; (3) whether

the sentencing guidelines were compromised in that an offense gravity score of 5 was employed wherein the offense

gravity score should have been a 2 or at worst a 3; and (4) whether all criminal counts should have merged for purposes

of sentencing. See Commonwealth v. Torres-Olan, No. 743 WDA 2019, 2019 WL 7372801, at *3 (Pa. Super. Ct.

Dec. 31, 2019).

Consistent with the interpretations of the PCRA Court and the Superior Court, this Court liberally construes Torres-

Olan’s first claim in the pending petition as an ineffective assistance of appellate counsel claim.

1]

ineffective assistance claim based on his appointed counsel’s failure to raise the issue on direct

appeal. Torres-Olan, 2022 WL 17348874, at *5. The Pennsylvania Supreme Court denied Torres-

Olan’s Petition for Allowance of Appeal from the Superior Court’s decision on July 18, 2023.8

See Commonwealth v. Torres-Olan, 301 A.3d 866 (Pa. 2023). Based on this procedural history,

the Court concludes that each of the claims raised in Torres-Olan’s federal habeas petition was

fairly presented to Pennsylvania’s highest court and, accordingly, has been exhausted.

C. Merits

In addition to raising an exhaustion defense, Respondents challenge Torres-Olan’s claims

on the merits. Although he asserts four grounds for relief, the Court finds that Torres-Olan’s first

claim — that the trial court failed to conduct an adequate pro se colloquy and, in turn, appointed

counsel failed to raise the issue on direct appeal — is meritorious. Given this disposition, the Court

need not reach his remaining claims.”

Notably, when addressing the merits of Claim 1 in their response to the Petition, which

they filed in May 2022, Respondents asserted only that the claim lacks merit for the same reason

the PCRA court determined that it did— that is, because Torres-Olan forfeited his right to counsel

and thus Rule □□□ did not apply to him. ECF No. 13 at 7-8. The Superior Court subsequently

rejected this argument in its December 2022 decision. Although this Court gave Respondents the

opportunity to supplement their response after Torres-Olan’s PCRA appeal concluded,

Respondents inexplicably failed to do so.

8 This occurred after Respondents filed the brief in which they argued that Claim | had not been exhausted.

See e.g., United States v. Welty, 674 F.2d 185, 194 n.7 (3d Cir. 1982) (‘Because of our disposition of the case, we

need not reach and do not decide Welty's claim that the trial court failed to take adequate measures to prevent jury

prejudice and confusion resulting from Welty’s dual role as defendant and counsel.”).

12

1. The State Courts’ Adjudication of Claim 1

As noted above, Torres-Olan contends that his conviction should be vacated because

appellate counsel failed to argue on direct appeal that the trial court had conducted an inadequate

pro se colloquy before requiring him to represent himself at trial. The Superior Court addressed

this claim on appeal from the denial of Torres-Olan’s PCRA Petition. Torres-Olan, 2022 WL

17348874, at *5. This Court reviews the Superior Court’s decision through AEDPA’s deferential

lens. Thus, to obtain relief, Torres-Olan first must show that the state courts’ adjudication of this

claim was contrary to or an unreasonable application of clearly established federal law or based

on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

On direct appeal, Torres-Olan had attempted to raise a claim challenging the trial judge’s

failure to provide a proper waiver-of-right-to-counsel colloquy in his initial pro se brief to the

Superior Court. However, Attorney Hathaway, after being appointed to represent Torres-Olan on

direct appeal, declined to reassert that issue in Torres-Olan’s subsequent counseled brief. See ECF

No. 5 at 5; ECF No. 27; ECF No. 13-5; ECF No. 27 at 5-6. Because the deficient colloquy issue

had not been preserved on direct appeal, the PCRA Court construed the claim in Torres-Olan’s

PCRA Petition “as a layered ineffective claim for failure of his appellate counsel to raise the issue

on direct appeal.” /d. at 10. The PCRA Court held a hearing “limited to the issues of the adequacy

of the trial court’s waiver of counsel colloquy and Attorney Hathaway’s failure to raise the claim

in the direct appeal...” Torres-Olan, 2022 WL 17348874, at *2 (internal citations omitted). The

PCRA Court rejected Torres-Olan’s claim after agreeing with the trial court that Torres-Olan had

forfeited his right to counsel and, therefore, a pro se colloquy under Pa. R. Crim. P. 121 was

unnecessary.'° /d. at *7.

'© The trial court determined that Torres-Olan had forfeited his right to counsel after holding a brief hearing on his

appointed public defender’s motion to withdraw as counsel. In her motion, counsel explained that she and Torres-

13

On appeal from the PCRA Court’s order, the Superior Court similarly treated Torres-

Olan’s challenge to the trial court’s pro se colloquy as aclaim for ineffective assistance of appellate

counsel, noting that the “PCRA court held the hearing to consider adequacy of the trial court’s

colloquy and Attorney Hathaway’s failure to raise the issue in the direct appeal.” Torres-Olan,

290 A.3d 650, at *6 n.14 (citing N.T. PCRA Hearing, 4/29/21, at 6). The Superior Court

summarized the evidence at the PCRA hearing by observing that “Torres-Olan testified—and

Attorney Hathaway contirmed—that he asked Attorney Hathaway to raise the issue of the absence

of a waiver of counsel colloquy on direct appeal, but that Attorney Hathaway did not raise the

issue.” Jd. The Superior Court then set out the three elements Pennsylvania law recognizes as

necessary for a successful ineffective assistance claim:

[T]o prevail on a claim of ineffective assistance of counsel, the

PCRA petitioner must rebut the presumption that counsel was

effective by demonstrating:

Olan had repeatedly disagreed regarding pretrial motions and that Torres-Olan had sent her correspondence that she

considered disparaging and disrespectful. At the conclusion of the hearing, the following exchange occurred between

the trial judge and Torres-Olan:

THE COURT: Well, here’s where we're at ... you’re entitled to have counsel represent you, And if

you don’t believe your counsel is acting in your best interests, then you can fire her. But | will tell

you this, | see nothing in this record[ ] that would support that. And if you decide you don’t want

representation by the public defender’s office, then you will forfeit your right to have appointed

counsel, because I see no reason for your action. So that would mean that your choices are, you can

go on and represent yourself or you can [hire] a lawyer. That's entirely up to you. Do you understand

that?

MR. TORRES-OLAN: Yes, sir.

THE COURT: So what would you like to do?

MR. TORRES-OLAN: I would like to represent myself, Your Honor.

THE COURT: All right. Is that a knowing and voluntary decision on your part?

MR. TORRES-OLAN: Yes.

Torres-Olan, 290 A.3d 650 at *4 (quoting N.T., 9/28/15, at 5-6).

14

(1) the underlying substantive claim has arguable merit; (2) counsel

whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance.

Torres-Olan, 290 A.3d 60, at *3 (quoting Commonwealth v. Pou, 201 A.3d 735, 738-39 (Pa.

Super. 2018) (internal citation omitted)).!!

In analyzing the first element-whether “the underlying substantive claim has arguable

merit’”-—the Superior Court rejected the trial court and PCRA Court’s conclusion that Torres-Olan

had forfeited his right to counsel, holding that Torres-Olan’s treatment of his appointed attorney

“was not so ‘extreme’ as to forfeit his right to trial counsel as a matter of law.” /d. at * 5. In the

absence of forfeiture, the Superior Court acknowledged that Pa. R. Crim. P 121 ordinarily

“requires a thorough colloquy to ensure the defendant’s waiver [of his right to counsel] is knowing,

intelligent, and voluntary.” /d. Because the trial court failed to conduct a Rule 121 colloquy, the

Superior Court appeared to recognize that Torres-Olan had demonstrated “‘a technical defect” in

the waiver process that, if raised by Attorney Hathaway on direct appeal, would have entitled

Torres-Olan to a new trial. /d. Rather than grant relief, however, the Superior Court drew a

purported distinction between the burden of proof for an inadequate waiver colloquy claim on

direct appeal and the burden of proof during collateral proceedings when the adequacy of the

colloquy is the underlying claim in an ineffective assistance of direct appeal counsel claim. The

Superior Court explained:

Our conclusion that Torres-Olan did not forfeit his right to counsel

does not end our review, however, as the PCRA requires a higher

burden for challenging a defective waiver of counsel colloquy than

a direct appeal. See Pou, 201 A.3d at 746 (discussing the more

stringent standards applicable to PCRA claims alleging a defective

'' Several years after the Superior Court issued its opinion in Commonwealth v. Pou, 201 A.3d 735, 738-39 (Pa. Super.

2018), this Court issued a conditional writ of habeas corpus in Pou v. Superintendent SCI Forest, 2021 WL 5604991

(W.D. Pa. Nov. 29, 2021). To avoid confusion, the Court will refer to the Superior Court’s decision as Pou / and the

federal habeas decision as Pow //.

15

waiver of counsel colloquy than a direct appeal claim). In a direct

appeal, this Court will require strict compliance with Rule 121 and

must first consider whether a colloquy complied with Rule 121

before considering whether the defendant knowingly, intelligently,

and voluntarily waived the right to trial counsel. See Phillips, 93

A.3d at 853; see also Pou, 201 A.3d at 747. Once a conviction

becomes final, however, a PCRA petitioner has a heightened burden

of proof. He must plead and prove that an issue (1) is not waived

under the PCRA, see 42 Pa.C.S.A. § 9544(b) (stating that “an issue

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

on appeal ...”), and (2) establishes a constitutional or structural error

meriting a new trial. See Commonwealth v. Isaac, 205 A.3d 358, 367

(Pa. Super. 2019).

Thus, in the context of the PCRA, it is not sufficient for a PCRA

petitioner to rely on cases addressing a defective colloquy as if on

direct appeal. See id. Further, a PCRA petitioner cannot rely on the

fact that a court would have awarded a new trial if a defective

colloquy claim had been raised on direct appeal. See Pou, 201 A.3d

at 746 (noting that a claim that may have warranted a new trial in a

direct appeal does not require a new trial in a PCRA proceeding).

Rather, in a PCRA appeal, “the prophylactic purpose of ensuring

strict compliance with Rule 121 dissipates to a great degree ...

[where] finality considerations justify applying a higher standard of

prejudice than what would have applied on direct review.” /d. at

747. As our Supreme Court noted, a “waiver colloquy is a

procedural device; it is not a constitutional end or a constitutional

‘right’” in itself. Commonwealth y. Mallory, 941 A.2d 686, 697 (Pa.

2008) (noting, in a PCRA appeal, that the absence of an on-the-

record colloquy concerning the fundamentals of a constitutional

right, such as a trial by jury, “does not prove, in an absolute sense,

that a defendant failed to understand the right he waived”). Thus, a

PCRA petitioner bears the burden of establishing more than a

technical defect in the trial court's colloquy under Rule 121. See

Isaac, 205 A.3d at 367.

Torres-Olan, 2022 WL 17348874, at *6.

Applying this heightened burden, the Superior Court concluded that Torres-Olan’s claim

[did] not meet the stringent standard for relief under the PCRA.” /d. Focusing on the prejudice

element of Torres-Olan’s claim, the Superior Court reasoned that, because Torres-Olan’s

testimony addressed only the “technical deficiencies” of his Rule 121 colloquy, he had failed to

16

meet his burden of demonstrating that the deficient colloquy rose to the level of a Sixth

Amendment violation. The Superior Court explained:

Similar to the PCRA appellants in Pou and /saac, Torres-Olan

focused his pleadings and testimony on the technical deficiencies of

the colloquy under Rule 121(A)(2). However, as Isaac and Pou

instruct, Torres-Olan was required to show more, and he neither

alleged or proved a structural error, i.e., that the trial court denied a

request for new counsel, nor did he establish a constitutional

violation, i.e., that the colloquy was so deficient under the totality of

the circumstances that he could not have properly waived his right

to counsel. See Isaac, 205 A.3d at 367; Pou, 201 A.3d at 745-46.

Id. at *6-*7. In a footnote, the Superior Court also noted that it found “nothing in the record [to]

support a finding that Torres-Olan’s decision to proceed pro se without Attorney Sloane as his

counsel was unknowing, involuntary, or unintelligent under the totality of the circumstances.” /d.

at n. 15. The court observed that Torres-Olan “had prior experiences with the criminal justice

system” and “was a relatively sophisticated defendant who was aware of the consequences of his

decision to proceed without counsel.” /d. For these reasons, the Superior Court concluded “that

Torres Olan’s underlying assertion that the trial court’s waiver of counsel colloquy was inadequate

merit[ed] no relief.” /d. at *7.

2. The Superior Court’s adjudication of Claim 1 was “contrary to” the

Supreme Court’s decisions in Strickland v. Washington, 466 U.S. 668

(1984) and Smith v. Robbins, 528 U.S. 259 (2000).

As previously discussed, the Superior Court treated Torres-Olan’s waiver-of-counsel claim

as an ineffective assistance of appellate counsel claim based on Attorney Hathaway’s failure to

raise the allegedly deficient waiver colloquy on direct appeal. The “clearly established federal

law” governing such claims is the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984). To prevail under Strickland, the Petitioner has the burden of

establishing that “counsel’s representation fell below an objective standard of reasonableness.” /d.

17

at 688. “This requires showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” /d. at 687. Strickland also

requires a petitioner to demonstrate that he was prejudiced by counsel’s allegedly deficient

performance — in other words, that “there is a reasonable probability that, but for counsel’s

unprofessional errors,” the result of his proceeding “would have been different.” /d. at 694. In

the context of ineffectiveness of appellate counsel, this requires the petitioner to demonstrate a

reasonable probability that, but for counsel’s failure, he “would have prevailed on his appeal.”

Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (citing Strickland, 466 U.S. at 694),'?

Pennsylvania courts typically articulate Strickland’s standard in three parts, while federal

courts set it out in two. The legal evaluation is the same, and the differences merely reflect a

stylistic choice on the part of state courts. See, e.g., Commonwealth. v. Mitchell, 105 A.3d 1257,

1266 (Pa. 2014) (“this Court has divided [Strickland’s| performance component into sub-parts

dealing with arguable merit and reasonable strategy. Appellant must, therefore, show that: the

underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission;

and Appellant suffered prejudice as a result.”). Pursuant to Pennsylvania's formulation of

Strickland, Torres-Olan had to establish that: (1) his deficient pro se colloquy claim had merit; (2)

Attorney Hathaway did not have a reasonable basis for declining to raise this claim on direct

appeal; and (3) Torres-Olan suffered prejudice as a result of Attorney Hathaway’s failure to raise

this issue on direct appeal.

The Superior Court recognized that this standard applied to Torres-Olan’s ineffective

assistance of counsel claim, denying the claim based on a perceived failure of proof as to the third

The Fourteenth Amendment guarantees a criminal defendant pursuing a first appeal as of right certain “minimum

safeguards necessary to make that appeal ‘adequate and effective.’” Evitts v. Lucey, 469 U.S. 387, 392 (1985) (quoting

Griffin v. Illinois, 351 U.S. 12, 20 (1956)). These include the right to the effective assistance of counsel on appeal.

Id. at 396.

18

element. Specifically, the court held that Torres-Olan had failed to show prejudice because “he

neither alleged or proved a structural error, i.e., that the trial court denied a request for new counsel,

nor did he establish a constitutional violation, i.e., that the colloquy was so deficient under the

totality of the circumstances that he could not have properly waived his right to counsel.” Torres-

Olan, 290 A.3d at *7 (citing Isaac, 205 A.3d at 367; Pou, 201 A.3d at 745-46). However, by

requiring Torres-Olan to establish that the denial of a proper pro se colloquy not only constituted

a reversable error that would have required a new trial on direct appeal under state law, but also

amounted to an independent constitutional violation, the Superior Court adopted a significantly

more demanding standard of prejudice than the standard outlined in Strickland and Robbins. This

decision was, accordingly, contrary to clearly established federal law as determined by the

Supreme Court of the United States.

In arriving at this conclusion, the Court notes that the constitutional issue presented to the

Superior Court was not whether Torres-Olan’s Sixth Amendment right to ‘rial counsel was

violated, but rather, whether his Fourteenth Amendment right to effective assistance of appeilate

counsel was violated. See e.g., Pou v. SCI Forest, 2021 WL 5604991, at *3 n.3 (W.D. Pa. Nov.

29. 2021) (“Pou IL’) (internal quotations and quoting sources omitted). This distinction 1s critical

because an ineffective assistance of appellate counsel claim under Strickland does not require

proof that the “underlying claim” —i.e., the trial court’s defective pro se colloquy — amounted to a

constitutional violation. Rather, Torres-Olan need only show that Attorney Hathaway’s

performance fell below an objective standard of reasonableness and that this deficient performance

prejudiced the outcome of Torres-Olan’s direct appeal. He can satisfy this standard by

demonstrating that Attorney Hathaway lacked an objectively reasonable basis for failing to raise a

meritorious state law claim on direct appeal and that, but for Attorney Hathaway’s error, his direct

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appeal would have been successful. Robbins, 528 U.S. at 285-86. Because the Superior Court did

not recognize this distinction, it elevated Torres-Olan’s burden to demonstrate prejudice to a level

incompatible with Strickland and Robbins.

This Court recently granted a writ of habeas corpus under similar circumstances in Pou I.

Like Torres-Olan, Pou attacked appellate counsel’s failure to challenge the insufficiency of the

trial court’s Rule 121 pro se colloquy on direct appeal. The Superior Court recognized in Pou I

that Pou’s underlying claim was a Rule 121 violation and held that it had arguable merit — i.e., that

appellate counsel’s failure to raise the claim was objectively unreasonable and that Pou would

have prevailed on his appeal and received a new trial had the claim been raised. Pou //, 2021 WL

5604991, at *1 (quoting Pou J, 145 A.3d 778). Despite this conclusion, the Superior Court

declined to grant relief after determining, based on the United States Supreme Court’s decision in

Weaver v. Massachusetts, 582 U.S. 286 (2017), that Strickland required a greater showing of

prejudice than Pou could demonstrate.

In Weaver, the Supreme Court was tasked with deciding how to evaluate a claim that trial

counsel’s ineffectiveness resulted in a specific structural error---a Sixth Amendment public-trial

violation (specifically, the closing of the court during voir dire). The Supreme Court explained that

it granted certiorari to resolve the disagreement among the federal courts of appeals and some state

courts as to whether a defendant must prove prejudice when the structural error “was neither

preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance

of counsel.” Weaver, 582 U.S. at 293. It also made clear that it was resolving the disagreement

“specifically and only in the context of trial counsel’s failure to object to the closure of the

courtroom during jury selection.” /d. at 294. In Weaver, a majority of the Court agreed that a

20

showing of prejudice was required for an ineffectiveness claim concerning the failure to object to

a courtroom closure.!? Jd. at 299-303, 305-08.

The Superior Court in Pou / interpreted Weaver's holding to mean that, “for the discrete

claim of ineffective assistance of appellate counsel for failing to challenge a defective Rule 12]

colloquy, the prejudice showing on collateral review requires a showing that the waiver of counsel

was constitutionally deficient” and not just a violation of the state rule of criminal procedure. 201

A.3d at 743, 744. But that was a misreading of Weaver which, as discussed above, simply held

that when a defendant claimed his counsel was ineffective for failing to preserve the specific

structural error at issue in that case (the closure of the courtroom to the public) prejudice would

not be presumed and the defendant had to satisfy Strickland's prejudice prong. The Superior Court

ultimately concluded that Pou had failed to show the requisite prejudice under Strickland because,

although the colloquy he received was deficient under Rule 121 and therefore he would have

received relief on direct appeal had counsel raised that error, he had not established that the waiver

of counsel colloquy was constitutionally deficient. /d.

In granting Pou’s federal habeas corpus petition, this Court rejected the Superior Court’s

application of Weaver to the Strickland analysis. As this Court explained:

In Weaver, the United States Supreme Court addressed whether

it was necessary for a criminal defendant to show prejudice when

asserting a claim of ineffective assistance of counsel for failure to

object to a structural error. It is noteworthy that... the Weaver Court

specifically limited its holding to ‘the context of trial counsel’s

failure to object to the closure of the courtroom during jury

selection.’” Jd. at 1907. The application of Weaver to this case,

which involves neither the closure of a courtroom during jury

The defendant in Weaver also argued that under Srrickland prejudice could be established “even if there is no

showing of a reasonable probability of a different outcome,...if the convicted person shows that attorney errors

rendered the trial fundamentally unfair.” 582 U.S. at 299. Justice Kennedy, delivering the opinion of the Court in

which five other Justices joined, explained that it would “assume,” “{f]or the analytical purposes of th[e] case,” the

petitioner’s interpretation of Strickland is the correct one,” but that, in light of its ultimate holding, it “need not decide

that question here.” /a.

21

selection nor a claim of trial counsel’s ineffectiveness, was

inappropriate.

In Weaver, the Court addressed the remedy for violation of a

structural right. A structural error is one that “‘affects the framework

within which the trial proceeds,’ rather than being ‘simply an error

in the trial process itself.’” Weaver, 137 S. Ct. at 1907 (quoting

Arizona v. Fulminate, 499 U.S. 279, 310 (1991)). For that reason,

such errors are not subject to the harmless error standard. Weaver,

1378S. Ct. at 1907-08. Thus, ifa structural error is objected to at trial

or raised on direct appeal, the defendant is generally entitled to an

“automatic reversal.” Jd. at 1910. Weaver held, however, that when

a structural error is raised in the context of an ineffective-assistance

claim, Strickland prejudice is not shown automatically; prejudice

must be shown in these cases as Strickland dictates. /d. at 1911.

Because the claim in Weaver concerned trial counsel’s

ineffectiveness, the Court focused its prejudice analysis on the

outcome of the trial. /d. at 1912-13. Again, unlike this case, Weaver

did not concern appellate counsel’s ineffectiveness.

In short, the Superior Court[] failed to apply Strickland’s prejudice

standard when it evaluated Pou’s claim. Thus, its decision was

‘contrary to’ Strickland.

Pou II, 2021 WL 5604991, at *4.

The same conclusion is warranted here. The Superior Court misconstrued the applicable

burden required to establish Strickland’s prejudice prong. In so doing, the Superior Court elevated

the burden on Torres-Olan to establish that prong. As explained above, by requiring Torres-Olan

to establish that the denial of a proper pro se colloquy not only constituted a reversable error that

would have required a new trial on direct appeal under state law, but also amounted to an

independent constitutional violation, the Superior Court adopted a significantly more demanding

standard of prejudice than the standard outlined in Strickland and Robbins. The correct rule from

those cases required Torres-Olan to demonstrate a reasonable probability that, but for direct appeal

counsel’s deficient performance, he “would have prevailed on his appeal.” Robbins, 528 U.S. at

285-86 (citing Strickland, 466 U.S. at 694). The Superior Court did not apply that rule here.

22

Thus, the Superior Court’s adjudication of Torres-Olan’s claim that Attorney Hathaway

was ineffective was “contrary to” Supreme Court precedent. Accordingly, Torres-Olan has

overcome AEDPA’s standard or review at § 2254(d)(1), and the Court must now review his claim

de novo to determine whether he has satisfied his burden of demonstrating that his appellate

counsel was ineffective under Strickland. The record developed by the state courts provides a

sufficient basis for the Court to do so.

3. Attorney Hathaway’s representation, reviewed de novo, violated

Strickland and amounted to ineffective assistance of counsel.

To resolve whether appellate counsel was ineffective for failing to raise the pro se colloquy

issue, the Court must first determine whether the underlying issue has merit. See United States v.

Mannino, 212 F.3d 835, 840 (3d Cir. 2000) (“[I]t is not possible to resolve the Strickland claim

without first determining if [Defendant’s] challenge to the [underlying claim] is meritorious”

because, “{i]f it is not meritorious, the [Defendant] cannot successfully argue that counsel’s failure

to raise the claim on direct appeal denied [him his] constitutional right of representation.”). To

effectuate a knowing, intelligent, and voluntary waiver of the right to counsel under Pennsylvania

law, the court must conduct a colloquy that complies with Pa. R. Crim. P. 121. Specifically, the

court must advise the defendant of the right to be represented by counsel; the nature of the charges

against him and the elements of those charges; the permissible range of sentences and/or fines for

the charged offenses; the fact that he will still be bound by the normal rules of procedure while

representing himself; that possible defenses, unknown to the defendant but known to counsel,

might exist and be subject to waiver if not raised at trial; that many ngfits, if not timely asserted,

may be lost permanently; and that if errors occur and are not timely objected to, they may be

permanently lost. See Pa. R. Crim. P. 121. These factors largely overlap those required by the

Sixth Amendment. See United States v. Taylor, 21 F.4"" 94, 100 (3d Cir. 2021) (noting that the

23

Sixth Amendment requires a court conducting a waiver inquiry to ascertain whether the defendant

“has clearly and unequivocally asserted his desire to represent himself,” “understands the nature

of the charges, the range of possible punishments, potential defenses, technical problems that [he]

may encounter, and any other factors important to a general understanding of the risks involved,”

and “is competent to stand trial”).

The trial court did not address any of these rights and protections during Torres-Olan’s

colloquy, asking only whether Torres-Olan’s decision to proceed without counsel was “a knowing

and voluntary decision on [his] part.” Torres-Olan, 290 A.3d 650 at *4 (quoting N.T., 9/28/15, at

5-6).'4 Because the court failed to apprise him of, among other things, the numerous charges

against him, the elements of those charges, or the range of sanctions he could face if convicted,

Torres-Olan’s challenge to the sufficiency of the colloquy had obvious merit. See e.g,

Commonwealth vy. Isaac, 205 A.3d 358, 360 (2019) (“Appellant represented himself at trial after a

defective waiver-of-counsel colloquy—the trial court never apprised Appellant of the elements of

the charged offenses.”’); Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335-36 (1995)

(“To ensure that a waiver is knowing, voluntary, and intelligent, the trial court must conduct a

‘probing colloquy,’ which is a searching and formal inquiry as to whether the defendant is aware

both of the right to counsel and of the significance and consequences of waiving that right.”). See

also United States v. Taylor, 2\ F.4th 94, 104 (3d Cir. 2021) (“Because the District Court denied

Taylor’s request to represent himself without completing a sufficient inquiry of the relevant

matters, and thereby denied Taylor his Sixth Amendment right to self-representation, we will

vacate Taylor’s conviction and remand to the District Court for a new trial.”); United States v.

'4 Tt is well-settled that “[t]he mere fact that an accused may tell (the court) that he is informed of his right to counsel

and desires to waive this right does not automatically end the judge’s responsibility.” United States v. Welty, 674 F.2d

185, 189 (3d Cir. 1982) (quoting source omitted).

24

Goldberg, 67 F.3d 1092, 1102 (3d Cir. 1995) (vacating conviction because “the district court failed

to inform Goldberg of the risks of self-representation”): McMahon vy. Fulcomer, 821 F.2d 934, 946

(3d Cir. 1987) (“While the trial judge apprised the defendant of the procedure to be used in his

ensuing trial, he failed to ensure that the defendant’s decision to proceed pro se in that trial was

made with ‘eyes open’—that McMahon truly understood the consequences of dismissing his

attorney and electing to represent himself. . .”).

The next question under Strickland is whether appellate counsel exercised reasonable

professional judgment in failing to challenge the sufficiency of Torres-Olan’s pro se colloquy. The

proper standard for attorney performance is that of “reasonably effective assistance’—ijn other

words, Torres-Olan must show that appellate counsel’s representation fell below an objective

standard of reasonableness considering all the circumstances. See Strickland, 466 U.S. at 687-88.

There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Grant v. Lockett, 709 F.3d 224, 234 (3d Cir. 2013) (quoting Strickland,

466 U.S. at 689). As the United States Supreme Court explained in Strickland:

[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation dre

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s

judgments.

466 U.S. 690-691.

In the instant case, as discussed above, the trial court failed to conduct an adequate colloquy

before permitting Torres-Olan to represent himself at trial. No reasonable professional in Attorney

25

Hathaway’s position could conclude from the record that the trial court’s colloquy adequately

protected his client’s rights. See Richardson v. Superintendent Coal Township SCI, 905 F.3d 750,

762-63 (3d Cir. 2018) (there was “no rational basis to believe that counsel’s failure to argue the

... issue On appeal was a strategic choice” because “the sentencing judge conducted no colloquy

before letting Richardson proceed without counsel,” and thus, appellate counsel’s failure to raise

this issue, and PCRA counsel’s failure to raise appellate counsel’s failure, “cannot be justified as

a tactical decision.”). Indeed, the Superior Court appeared to recognize that, had this issue been

raised on direct appeal, as Torres-Olan requested,'* he would have been entitled to a new trial. It

is well-settled that an attorney's failure to pursue an argument of “obvious merit and importance”

without any apparent “strategic or tactical justification” can only be regarded as objectively

unreasonable. United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000) (counsel’s failure to

raise an “obvious and potentially successful” issue was objectively unreasonable). The Court

reaches the same conclusion here.

Finally, Torres-Olan must show a reasonable probability that, but for Attorney Hathaway’s

deficient performance, he “would have prevailed on his [direct] appeal.” Robbins, 528 U.S. at 285-

86 (citing Strickland, 466 U.S. at 694). Under well-established Pennsylvania law, the “[f]ailure to

conduct a thorough, on-the-record colloquy before allowing a defendant to proceed to trial pro se’

categorically ‘constitutes reversible error’ on direct appeal.” Jsaac, 205 A.3d at 363 (quoting

Commonwealth vy. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)). See also

Commonwealth v. Phillips, 93 A.3d 847, 855 (Pa. Super. 2014) (“In light of the ... court’s failure

to meet the minimum requirements of Rule 121 and to question Appellant on the qualitative aspects

'S As discussed above, at the PCRA hearing Attorney Hathaway testified that Torres-Olan “‘state[d] that he did want

to raise the absence of a pro se colloquy” but that Attorney Hathaway “didn’t find any factual or legal merit to raising

that.” ECF No. 31 at 42-45.

26

of his waiver of counsel at multiple critical stages of the proceedings, we are constrained to vacate

the judgment of sentence and remand for further proceedings.”). Accordingly, there is a reasonable

probability that, but for Attorney Hathaway’s failure to raise Torres-Olan’s pro se colloquy claim

on direct appeal, Torres-Olan would have prevailed on his appeal and received a new trial. This

is sufficient to satisfy Srrickland's prejudice requirement.

In sum, Attorney Hathaway’s failure to attack the trial court’s obviously deficient Rule 121

colloquy on direct appeal was objectively unreasonable. If not for Attorney Hathaway’s failure,

Torres-Olan would have prevailed on appeal and been granted a new trial. These findings

constitute ineffective assistance of appellate counsel under Strickland. See Pou I, 2021 WL

5604991. at *4. Torres-Olan is therefore entitled to habeas relief. See id.

IV. Conclusion

Because Torres-Olan was denied his Fourteenth Amendment right to effective assistance

of counsel in his direct appeal, the Court will issue a conditional writ of habeas corpus. The

execution of the writ of habeas corpus shall be stayed for a period set forth in the conditional writ

Order, within which time the Commonwealth must commence a new trial of Torres-Olan. If the

Commonwealth does not commence a new trial within that time, the writ shall issue, and the

Superintendent Respondent shal! release Torres-Olan from custody on the judgment of sentence

imposed by the Court of Common Pleas of Erie County at CP-25-CR-0001 888-2015.

A separate order will follow.

Dated this 8" day of July, 2024.

RICHARD A. LANZILLO

CHIEF UNITED STATES MAGISTRATE JUDGE

27