Lewis v. Johnson

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

3-10-2004

Lewis v. Johnson

Precedential or Non-Precedential: Precedential

Docket No. 01-1036P

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PRECEDENTIAL Before: SLOVITER, AMBRO,

Circuit Judges, and TUCKER,*

District Judge

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT (Opinion Filed March 10, 2004 )

No. 01-1036 Michael D. Bartko, Esquire (Argued)

Suite 401

210 Grant Street

CHARLES THOM AS LEWIS, Pittsburgh, PA 15219

Appellant Attorney for Appellant

v. Ronald M. Wabby, Jr., Esquire (Argued)

Office of the District Attorney

PHILIP L. JOHNSON, Superintendent, 401 Allegheny County Courthouse

SCI-Pittsburgh; MIKE FISHER, Pittsburgh, PA 15219

Attorney General of Pennsylvania,

Attorney for Appellees

Appellees

OPINION OF THE COURT

Appeal from the Order denying

Petition for Writ of Habeas Corpus

and denying a Certificate of TUCKER, District Judge.

Appealability entered on December 8,

2000, in the United States District Court This matter comes to us on appeal

for the Western District of Pennsylvania from the district court’s denial of

Appellant Charles Thomas Lewis’s

(D.C. Civil Action No. 00-cv-1500) application for writ of habeas corpus,

seeking relief from his state conviction on

District Judge: Hon. William L. Standish grounds his Sixth Amendment right to

effective assistance of counsel was

violated. Specifically, Lewis contends that

Argued June 26, 2003 his trial counsel’s failure to file a notice of

appeal constituted constitutionally-

Eastern District of Pennsylvania, sitting by

* Hon. Petrese B. Tucker, United designation.

States District Court Judge for the

deficient performance within the meaning On March 12, 1987, nine days

of Strickland v. Washington, 466 U.S. 668 following his sentencing, Lewis filed a

(1984), and Roe v. Flores-Ortega, 528 timely motion pro se in the trial court

U.S. 470 (2000), and deprived him of his challenging the validity of his guilty plea

first appeal of right. In accordance with on several grounds, including ineffective

the foregoing, we reverse the district assistance of counsel. On April 10, 1987,

court’s order denying habeas relief and trial counsel filed a “Motion for Leave to

remand with instructions that a writ be Withdraw Guilty Plea,” which the trial

issued conditioned on the Commonwealth court summarily denied without opinion.

reinstating nunc pro tunc Lewis’s right of The trial court did not rule on Lewis’s pro

first appeal. se motion and the parties indicate that it

remains pending. No appeal was taken

I. BACKGROUND from either the judgment of sentence or the

trial court’s ruling denying the counseled

A. Trial Proceedings motion to withdraw the guilty plea.

Lewis is presently an inmate at the B. First Petition for Post-Conviction

State Correctional Institution at Pittsburgh Relief Under State Law

where he is serving a 30 to 60 year

sentence imposed by the Pennsylvania On February 1, 1988, Lewis filed

Court of Common Pleas of Allegheny his first post-conviction petition pro se

County (“trial court”) following his pursuant to the Pennsylvania Post

conviction on six counts of robbery and Conviction Hearing Act (“PCHA”), 42

nine other criminal offenses. Lewis Pa.C.S. § 9541 et seq,1 in the Common

pleaded guilty to the charges on January Pleas Court of Allegheny County. Counsel

27, 1987, and was sentenced on March 3, was appointed and an amended petition

1987. Lewis was sentenced to six was subsequently filed. Among the issues

consecutive 5 to 10 year terms for each raised in the PCHA petition was

robbery count, to be followed by eleven ineffective assistance of counsel based on

years of probation for the bad checks and

firearms charges. Lewis was represented

by John Elash, a court-appointed attorney, 1

The PCHA was repealed on April

during the guilty plea and sentencing

13, 1988, and superseded by the Post-

proceedings. Following the announcement

Conviction Relief Act (“PCRA”), 42

of the sentence, the trial judge informed

Pa.C.S. §§ 9541-9546. It appears from the

Lewis of his right to file post-trial motions

record that Lewis may have filed his

challenging the validity of his guilty plea

PCHA petition on November 25, 1987, see

or requesting modification of the sentence

Appendix, Vol. 1 at 105, 231, but we use

within 10 days of the proceeding.

the date cited in the magistrate judge’s

report and recommendation.

2

trial counsel’s: (1) failure to move to merit. The only evidence

withdraw Lewis’s guilty plea when the indicating the desire to

trial court did not accept the alleged plea appeal was provided in the

agreement and sentence Lewis to 5 to 10 appellant’s testimony at the

years on each robbery count running hearing on the PCHA

concurrently rather than consecutively; (2) petition. However, in

failure to appeal the trial court’s denial of reviewing the transcript of

Lewis’s motion for leave to withdraw the the hearing, we find nothing

guilty plea “despite having a meritorious in the record to support the

argument that the guilty plea was appellant’s testimony. The

unlawfully induced”; and (3) failure to file PCHA court resolved the

a direct appeal from the denial of the post- issue of credibility in favor

trial motion and judgment of sentence.2 of trial counsel. That

Appendix, Vol. 1 at 117. Lewis’s PCHA determination will not be

petition was denied following an disturbed on appeal. We

evidentiary hearing. Lewis appealed the therefore adhere to the

decision to the Superior Court, which holding in Dockins,...

addressed the sole of issue of whether providing that trial counsel

Lewis was denied his right of direct cannot be found ineffective

appeal. The Superior Court concluded that for failing to file a direct

its prior decision in Commonwealth v. appeal when not requested

Dockins, 471 A.2d 851 (Pa. Super. 1984), to do so.

which holds that “trial counsel cannot be

found ineffective for failing to file a direct Appendix, Vol. II at 385. Lewis’s petition

appeal when not requested to do so,” was for allocator to the Pennsylvania Supreme

controlling. The court affirmed the denial Court appealing the Superior Court’s

of Lewis’s petition for post-conviction ruling was denied.

relief under the PCHA based on its

conclusion that: C. Second Petition for State Post-

Conviction Relief

[t]rial counsel admitted

discussing the possible Lewis, represented by counsel, filed

grounds for appeal and a second petition for post-conviction relief

mentions that none of the on February 14, 1995, pursuant to

grounds were of appellate Pennsylvania’s Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Lewis again contested the validity of his

2 guilty plea and alleged trial counsel was

Lewis raised these same claims in

ineffective on a number of grounds, to

the PCHA petition that he filed pro se.

include for failing to take direct appeal

Appendix, Vol. 1 at 110.

3

from the judgment of sentence which, ineffective for causing Lewis to enter a

Lewis contended, was contrary to the guilty plea that was not voluntary and

terms of his guilty plea. Another intelligent. Concluding that the state

evidentiary hearing was held, and the courts’ resolution of this question was not

PCRA petition denied thereafter. Lewis contrary to clearly established law, the

appealed the decision to the Superior magistrate judge recom mended that

Court. The court disposed of the question Lewis’s petition for habeas relief be

of Lewis’s right to a direct appeal in a denied.

footnote, holding that “his claim was

meritless” since the court had previously Lewis timely filed objections to the

decided the claim against him when it magistrate’s report and recommendation,

adjudicated his first post-conviction arguing that the magistrate judge failed to

petition under the PCHA, and held that (1) review his claim of ineffectiveness

Dockins precluded relief. Appendix, Vol. arising from trial counsel’s failure to take

II at 389 n.2 (citing Commonwealth v. a direct appeal, and (2) made no

Lewis, No. 978 Pittsburgh 1989 (Pa. determination as to whether the record

Super. Ct. filed July 18, 1990)). Lewis’s supported the state courts’ finding that he

petition for leave to appeal this decision to had not asked trial counsel to take an

the Pennsylvania Supreme Court was appeal. Lewis further argued that “counsel

denied. denied assistance by unconstitutionally

abandoning his assignment to my case

D. Federal Habeas Petition during critical judicial proceedings without

filing an appeal.” Appendix, Vol. III at

Following the exhaustion of his 567. In support of his objections, Lewis

state remedies, Lewis filed a timely pro se cited to the Supreme Court’s decisions in

petition for writ of habeas corpus in the Flores-Ortega and Douglas v. California,

United States District Court for the 372 U.S. 353 (1963). By order, the

Western District of Pennsylvania on district court adopted the magistrate

August 4, 2000. In his petition, Lewis judge’s report and recommendation and

alleged, inter alia, that the decisions of the denied Lewis’s petition for federal habeas

Commonwealth courts ran counter to relief.

clearly e s t a b li s h e d fe d e ra l l aw .

Specifically, Lewis contended that his trial Lewis filed a timely notice of

counsel was ineffective for failing to file a appeal in this court. We granted Lewis’s

direct appeal from the trial court’s denial application for a certificate of appealability

of his motion for leave to withdraw his to consider whether trial counsel was

guilty plea and the judgment of sentence. ineffective for failing file a direct appeal.

The district court referred the case to the

magistrate judge who addressed only the

question of whether trial counsel was

4

II. DISCUSSION Supreme Court of the

United States; or

A. Standard of Review

(2) resulted in a

Our jurisdiction to review a district decision that was based on

court’s order denying a state inmate’s an unreasonable

petition for habeas relief is derived from determination of the facts in

28 U.S.C. §§ 1291, 2253. Where, as in light of the evidence

this case, “the District Court relied presented in the State court

exclusively on the state court record and proceeding.

did not hold an evidentiary hearing, our

review of its decision is plenary.” Moore 28 U.S.C. § 2254(d)(1). The AEDPA

v. Morton, 255 F.3d 95, 103 (3d Cir. 2001) “modifie[d] the roles of federal habeas

(citation omitted). Lewis, a state inmate courts in reviewing petitions filed by state

seeking relief from his state court prisoners.” Williams v. Taylor, 529 U.S.

conviction, filed his federal habeas petition 362, 403 (2000). Under this new statutory

in 2000; thus our adjudication of this case rubric, “[w]e are to review the state court’s

is governed by the provisions of the determinations on the merits only to

Antiterrorism and Effective Death Penalty ascertain whether the court reached a

Act of 1996 (“AEDPA”), which, in decision that was ‘contrary to’ or an

relevant part, provides: ‘unreasonable application’ of clearly

established Supreme Court law, or whether

An application for a it made an ‘unreasonable determination’ of

writ of habeas corpus on the facts.” Marshall v. Hendricks, 307

behalf of a person in F.3d 36, 51 (3d Cir. 2002). “[T]he

custody pursuant to the determination whether or not a rule is

judgment of a State court clearly established at the time a state court

shall not be granted with renders its final judgment of conviction is

respect to any claim that a question as to which the ‘federal courts

was adjudicated on the must make an independent evaluation.’”

merits in State court Williams, 529 U.S. at 382 (quoting Wright

proceedings unless the v. West, 505 U.S. 277, 305 (1992)

adjudication of the claim– (O’Connor, J., concurring in judgment)).

The AEDPA does, however, confine the

(1) resulted in a authorities on which federal courts may

decision that was contrary rely in making this determination to the

t o , o r i n v o lv e d a n decisional law of the Supreme Court, that

unreasonable application of, is, the “Federal law, as determined by the

clearly established Federal Supreme Court of the United States.” Id.

law, as determined by the at 381-82 (quotation omitted).

5

The question in this case is whether the AEDPA “bears only a slight

Lewis’s trial counsel was ineffective for connection” to the nonretroactivity

not filing a notice of appeal. Lewis relies principle articulated in Teague v. Lane,

on the Supreme Court’s decision in 489 U.S. 288 (1989), and its progeny

Flores-Ortega, which held that criminal except to the extent that “whatever would

defense attorneys have a constitutional qualify as an old rule under our Teague

duty to consult and advise defendants of line of cases will constitute ‘clearly

their appellate rights. Flores-Ortega was established Federal law, as determined by

decided after Lewis’s conviction was the Supreme Court of the United States’

finally adjudicated, thus we certified two under § 2254(d)(1).” Williams, 529 U.S.

questions in our order granting Lewis’s at 412 (citation omitted). “The

appeal. The first asks whether, in light of nonretroactivity principle prevents a

Strickland and Flores-Ortega, the federal court from granting habeas corpus

Commonwealth courts’ “application of the relief to a state prisoner based on a [new]

rule of Commonwealth v. Dockins, rule announced after his conviction and

[supra], to appellant’s claim resulted in a sentence became final.” Caspari v.

decision that was ‘contrary to, or involved Bohlen, 510 U.S. 383, 389 (1994).

an unreasonable application of clearly

established Federal law, as determined by As we have explained, “Teague

the Supreme Court of the United States[.]’ teaches that the federal courts in habeas

28 U.S.C. § 2254(d)(1).” As an corpus proceedings should be reluctant to

antecedent to this question, we instructed apply new rules of federal jurisprudence in

that the parties “first address the question state court cases decided before such new

to what extent the holdings of Flores- rules were handed down. Principles of

Ortega constitute ‘clearly established comity and finality counsel that we

federal law.’ See Williams v. Taylor, maintain a circumscribed scope of habeas

[supra].” We begin our inquiry addressing review.” Banks v. Horn, 271 F.3d 527,

this latter question. 543 (3d Cir. 2001), rev’d on other grounds

by Horn v. Banks, 536 U.S. 266 (2002),

B. Teague Analysis and reaff’d by Banks v. Horn, 316 F.3d

228 (3d Cir. 2003) [hereinafter “Banks

1. III”] (citing Teague, 489 U.S. at 308). 3

The Supreme Court has acknowledged that

“The threshold question under the

AEDPA is whether [the petitioner] seeks

to apply a rule of law that was clearly 3

Banks III is currently pending

established at the time his state-court

appeal before the Supreme Court. See

conviction became final.” Williams, 529

Beard v. Banks, 124 S. Ct. 45 (2003)

U.S. at 390. In Williams, the Supreme

(Mem) (granting petition for writ of

Court held that this limiting provision of

certiorari).

6

discerning whether a rule is “old” or defendant’s conviction became final.

“new” for retroactivity purposes is not Second, we must survey the legal

without diff icult y, “[b]u t Teague landscape to determine whether or not the

established some guidance for making this case in question announced a new rule of

determination, explaining that a federal constitutional law. Finally, if we determine

habeas court operates within the bounds of that the case did announce a new rule, we

comity and finality if it applies a rule must consider whether it fits into one of

‘dictated by precedent existing at the time the two exceptions to nonretroactivity.”

the defendant’s conviction became final.’” Banks III, 316 F.3d at 233 (citing Caspari,

Williams, 529 U.S. at 381 (quoting 510 U.S. at 390). There is no dispute in

Teague, 489 U.S. at 301). Conversely, a this case that the final adjudication of

“new” rule is one which “breaks new Lewis’s conviction pre-dated Flores-

ground or imposes a new obligation on the Ortega and the two exceptions to the

States or the Federal Government.” Id. Teague bar do not apply. Thus we focus

The question of whether a rule is “old” or our inquiry on step two, reviewing the

“new” for Teague purposes remains one legal landscape to determine whether the

“which the ‘federal courts must make an duty to consult announced in Flores-

independent evaluation.’” Id. at 382 Ortega was dictated by precedent clearly

(quoting Wright, 505 U.S. at 305 established at the time Lewis’s conviction

(O’Connor, J., concurring in judgment)). became final. 5 Williams, 529 U.S. at 412.

In accord with the AEDPA, federal courts

may rely only on the precedents of the

S up re m e Co urt in making this

determination. Id. at 412.

Teague outlines a three-step

analysis for determining whether the

nonretroactivity principle prevents a

habeas petitioner’s reliance on a particular context did not arise. We directed the

rule.4 “First, we must determine when the parties sua sponte to brief the question.

5

Wh ether Flo res-Ortega

constitutes an “old” rule for retroactivity

4

We note that, while the question purposes is a question of first impression

of whether a particular rule is Teague- in this Circuit. Our research indicates that

barred is a threshold question, a “federal only one Federal Court of Appeals has

court may, but need not, decline to apply considered this question on the merits. In

Teague if the State does not argue it.” Daniel v. Cockrell, 283 F.3d 697, 708 (5th

Horn, 536 U.S. at 271. The district court Cir. 2002), the Fifth Circuit held, without

did not consider Lewis’s Flores-Ortega discussion, that Flores-Ortega constitutes

challenge, and the Teague issue in this a “new” rule for Teague purposes.

7

2. appeal), or (2) that this particular

defendant reasonably demonstrated to

In Flores-Ortega,6 the Supreme counsel that he was interested in

Court addressed the question of whether appealing.” 528 U.S. at 480. The Court

counsel may be found deficient for failing further explained that it “employ[ed] the

to file a notice of appeal absent specific term ‘consult’ to convey a specific

instruction from the defendant. Because meaning–advising the defendant about the

the question concerned whether counsel’s advantages and disadvantages of taking an

representation wa s con stitutiona lly appeal, and making a reasonable effort to

defective, the Court held that the familiar discover the defendant’s wishes.” Id. at

two-part test announced in Strickland 478. Additionally, the Supreme Court

governed its inquiry. 7 528 U.S. at 476-77. instructed that courts undertaking this

Applying the Strickland standard to the inquiry, as with all ineffective assistance

particular facts before it, the Court held claims, “take into account all the

that “counsel had a constitutionally information counsel knew or should have

imposed duty to consult with the defendant known.” Id. at 480 (citing Strickland, 466

about an appeal when there is reason to U.S. at 690). With respect to Strickland’s

think either (1) that a rational defendant prejudice prong, the Court held that the

would want to appeal (for example, harmless error inquiry applied and that

because there are nonfrivolous grounds for relief could not be granted unless the

defendant could “demonstrate that there is

a reasonable probability that, but for

6

We begin our Teague analysis counsel’s deficient failure to consult with

with Flores-Ortega, as “[t]he crux of the him about an appeal, he would have timely

analysis when Teague is invoked... is appealed.” Id. at 484.

identification of the rule on which the

claim for habeas relief depends.” Wright, The parties do not dispute that

505 U.S. at 311 (Souter, J., concurring in Strickland’s reasonableness test was

judgment). See also Banks III, 316 F.3d at clearly established law in 1987 when

232. Lewis’s conviction became final, and that

7 it governs the adjudication of this case.

Under Strickland, “[a] defendant

See Williams, 529 U.S. at 391 (“It is past

claiming ineffective assistance of counsel

question that the rule set forth in

in violation of the Sixth Amendment...

Strickland qualifies as ‘clearly established

must sh ow f i r s t t h a t coun sel’ s

Federal law[.]”). Rather, the point of

r e p r e s e n t a t i o n w a s o b j e c t i v e ly

contention rests with the Court’s second

unreasonable, and second, that counsel’s

holding in Flores-Ortega respecting the

deficient performance was prejudicial.”

duty to consult. Lewis contends the

United States v. Solis, 252 F.3d 289, 293

second holding of Flores-Ortega was

(3d Cir. 2001) (citing Flores-Ortega, 528

dictated by precedent, and urged at oral

U.S. at 476-77).

8

argument that the Supreme Court merely the particular case, viewed as of the time

“clarified” the law as it applied to the facts of counsel’s conduct.” 466 U.S. at 690

before it. Conversely, the Commonwealth (emphasis added). This standard

argues that this holding imposed a new “provides sufficient guidance for resolving

burden on the States by “set[ting] forth a virtually all ineffective-assistance-of-

new standard for the appellate process” counsel claims.” Williams, 529 U.S. at

and is barred by Teague from application 391.

in this case.

For these re a sons , the

We note as an initial matter that the Common wealth’s emphasis on the

Commonwealth has provided little analysis particular duty identified by the Flores-

and cites no authority for this position. Ortega Court – counsel’s constitutional

When pressed at oral argument, counsel obligation to consult with her client

for the Commonwealth could only point to regarding appeal options – as a basis for

language in the Court’s opinio n classifying this rule as “new” for Teague

announcing the decision, “[t]oday... we purposes is misplaced. “That the

hold” and “the standard we announce Strickland test ‘of necessity requires a

today,” 528 U.S. at 480, language which case-by-case e xa mination of th e

counsel took “to mean a new rule, if you evidence,’... obviates neither the clarity of

announce the rule today.” See also the rule nor the extent to which the rule

Appellee Br. at 22. This language is must be seen as ‘established’ by this

hardly dispositive or even persuasive. The [Supreme] Court.” Id. (quoting Wright,

point of the Teague analysis is to 505 U.S. at 308 (Kennedy, J., concurring

determine whether a rule which post-dates in judgment)). Justice Kennedy’s

the State’s final adjudication of a habeas concurrence in Wright v. West is

petitioner’s conviction may, without instructive on this point:

offending principles of comity and finality,

be retroactively applied. The language on If the rule in question is one

which the Commonwealth relies merely which of necessity requires

states the obvious (that the case announced a case-by-case examination

a rule on a particular day) and does not of the evidence, then we can

inform the second prong of our Teague tolerate a number of specific

inquiry. Further, we note that case law applications without saying

need not exist on all fours to allow for a that those applications

finding under Teague that the rule at issue themselves create a new

was dictated by Supreme Court precedent. rule.... Where the beginning

Strickland is a rule of general applicability point is a rule of this general

which asks whether counsel’s conduct was application, a rule designed

objectively reasonable and conformed to for the specific purpose of

professional norms based “on the facts of evaluating a myriad of

9

factual contexts, it “important decision.” See, e.g., Flores-

will be the infrequent Ortega, 528 U.S. at 489 (Souter, J.,

case that yields a concurring in part and dissenting in part);

result so novel that it Evitts v. Lucey, 469 U.S. 387 (1985);

forges a new rule, Wainwright v. Sykes, 433 U.S. 72, 92

one not dictated by (1977) (Burger, C.J., concurring) (noting

precedent. the question of whether to appeal is a

“critical procedural decision”); Rodriguez

505 U.S. at 308-09 (emphasis added). Our v. United States, 395 U.S. 327 (1969). It

review of the legal landscape, well-settled follows then that since the decision to

at the time Lewis’s conviction became appeal “cannot be made intelligently

final, compels us to conclude that Flores- without appreciating the merits of possible

Ortega did not “yield[] a result so novel grounds for seeking review, and the

that it forge[d] a new rule,” and that potential risks to the appealing defendant,

Flores-Ortega’s application of the a lay defendant needs help before

Strickland standard was dictated by deciding.” 8 Flores-Ortega, 528 U.S. at

precedent and merely clarified the law as it 489 (Souter, J.) (emphasis added)

applied to the particular facts of that case. (citations omitted).

Indeed we need look no further than This proposition – that a defendant

Strickland in making this determination. requires the advice of counsel to make an

I n a n n o u n c in g t h e o b jectiv e informed decision respecting his right of

reasonableness standard, the Strickland appeal – was hardly novel in 1987. It was

Court identified “certain basic duties” that clearly established that the Sixth

its p r e c e dents and then-ex isting Amendment’s guarantee of effective

professional norms established criminal

defense attorneys must carry out to

perform competently within the meaning 8

We note that the Flores-Ortega

of Sixth Amendment. The Court included

majority and the Justices dissenting in part

among these duties “counsel’s [obligation

and joining in Justice Souter’s opinion

to] function as assistant to the defendant...

disagreed only on the question of whether

[and] the overarching duty to advocate the

counsel should have a per se duty to

defendant’s cause and the more particular

consult the defendant in all cases. See 528

duties to consult with the defendant on

U.S. at 481. The majority rejected such a

important decisions and to keep the

bright-line rule though recognizing it as

defendant inform ed of important

the “better practice,” id. at 479, whereas

developments in the course of the

Justice Souter would have held that

prosecution.” Strickland, 466 U.S. at 688

counsel is “almost always” obligated to

(emphasis added). The decision whether

consult her client about an appeal. Id. at

to appeal is unquestionably one such

488.

10

assistance of counsel extended to the first view comports with the prevailing

appeal as of right, and the Strickland professional norms existing in 1987, to the

s t a n d a r d a p p l i ed t o ap p e l l at e extent these norms are denoted in the

representation. See generally Jones v. published standards of the American Bar

Barnes, 463 U.S. 745 (1983); Evitts, 469 Association (“ABA”). Flores-Ortega, 528

U.S. 387. The Supreme Court cases U.S. at 490, quoting ABA Standards for

respecting attorney competence on appeal Criminal Justice 21-2.2(b) (2d ed. 1980)

recognized that lay defendants “may not (“Defense counsel should advise a

even be aware of errors which occurred at defendant on the meaning of the court’s

trial,” Rodriguez, 395 U.S. at 330, and judgment, of defendant’s right to appeal,

required “the superior ability of trained and of the probable outcome of

counsel in the ‘examination into the appealing.”). Promulgated in 1980, the

record, research of the law, and ABA’s standards pre-date Strickland. The

marshalling of arguments’” on appeal just Supreme Court has cited with approval the

as at trial. Jones, 463 U.S. at 751 (quoting use of “[p]revailing norms of practice as

Douglas v. California, 372 U.S. at 358). reflected in the American Bar Association

Thus, though “the accused has the ultimate standards and the like... [as] guides to

authority to make certain fundamental determining what is reasonable, but only

decisions regarding the case,... [including] guides.” Strickland, 466 U.S. at 688;

whether to plead guilty, waive a jury, Flores-Ortega, 528 U.S. at 479. In light of

testify in his or her own behalf, or take an the foregoing well-settled Supreme Court

appeal,” id. at 751 (citing Sykes, 433 U.S. precedents respecting the constitutional

at 93, n.1 (Burger, C. J., concurring)); standard for appellate representation, we

ABA Standards for Criminal Justice 4-5.2, believe reasonable jurists applying the

21-2.2 (2d ed. 1980)), counsel was Strickland standard to Lewis’s claim

constitutionally obligated to advise the would have concluded that the Court’s

defendant respecting those decisions to “previous precedents... [did] not simply

allow for intelligent exercise of the ‘inform, or even control or govern’ the

particular right. See, e.g., Rock v. analysis, but instead... compel[led] the

Arkansas, 483 U.S. 44 (1987) (right to rule” in Flores-Ortega. Banks III, 316

testify on one’s behalf); Hill v. Lockhart, F.3d at 234 (quoting Saffle v. Parks, 489

474 U.S. 52 (1985) (guilty plea; waiver of U.S. 484, 491 (1990)) (add’l citation

right to jury trial). Flores-Ortega broke no omitted).

new ground in holding the duty to consult

also extended to counsel’s obligation to Accordingly, we hold that Flores-

advise the defendant of his appellate Ortega’s application of the Strickland

rights. standard did not forge new ground or

otherwise impose a new obligation upon

As Justice Souter’s concurring the States in announcing the duty to

opinion in Flores-Ortega evidences, this consult, and this holding constitutes an

11

“old” rule which may be retroactively and “unreasonable application” have

a p p l i ed t o L e w is ’s cl ai m of independent meanings, each of which must

ineffectiveness.9 be given effe ct to accord with

congressional intent. 529 U.S. at 407.

C. M erits Analysis Justice O’Connor read “contrary” to

employ its common meaning – that which

1. is “diametrically different,’ ‘opposite in

character or nature,’ or ‘mutually

Having concluded that the duty to opposed,’” id. at 405 – and concluded that

consult as announced in Flores-Ortega a state-court decision is “contrary to”

constitutes an “old” rule for retroactivity clearly established federal law if: (1) “the

purposes and clearly established law, we state court applies a rule that contradicts

now move to the merits of Lewis’s claim the governing law set forth in [the

and consider the second question certified Supreme Court’s] cases,” id., or (2) “the

on this appeal: whether, in light of state court confronts a set of facts that are

Strickland and Flores-Ortega, the state materially indistinguishable from a

courts’ application of the rule of decision of [the Supreme] Court and

Commonwealth v. Dockins resulted in a nevertheless arrives at a result different

decision that was “contrary to” or involved from [the Court’s] precedent.” Id. at 406.

an “unreasonable application” of clearly

established federal law. In Williams v. Justice O’Connor found the

Taylor, Justice O’Connor, writing for the “unreasonable application” clause of the

majority, held that the terms “contrary to” AEDPA “no doubt difficult to define,” id.

at 410, but held generally that this

provision is contravened if “a state-court

9 decision correctly identifies the governing

The parties do not contest that the

legal rule but applies it unreasonably to the

third holding of Flores-Ortega, the

facts of a particular prisoner’s case.” 10 Id.

prejudice standard, is an “old” rule and

clearly established law. To show prejudice

under this standard, “a defendant must

10

demonstrate that there is a reasonable Justice O’Connor posited that the

probability that, but for counsel’s deficient Fourth Circuit’s additional holding that

failure to consult with him about an this clause includes any state-court

appeal, he would have timely appealed.” decision which “unreasonably extends a

528 U.S. at 484. As the Supreme Court legal principle from our precedent to a new

observed, “this prejudice standard breaks context where it should not apply (or

no new ground, for it mirrors the prejudice unreasonably refuses to extend that

inquiry applied in Hill v. Lockhart, principle to a new context where it should

[supra], and Rodriguez v. United States, apply)’... may perhaps be correct, [but

[supra].” Id. at 485. observed] the classification does have

12

at 407-08. The unreasonableness of a state Dockins stands for the proposition that

court’s decision must be judged from an “[t]rial counsel can not be held ineffective

objective standard; “a federal habeas court for failing to file an appeal when his client

may not issue the writ simply because that has not asked him to do so.” Appendix,

court concludes in its independent Vol. II at 385 (Superior Court PCHA

judgment that the relevant state-court opinion citing Dockins) (add’l citation

decision applied clearly established federal omitted). The dispositive question under

law erroneously or incorrectly. Rather, Dockins is whether the defendant directed

t h a t a p p l i c a t i o n m u s t a l s o be his trial counsel to perfect an appeal; the

unreasonable.” Id. at 411; Mitchell v. inquiry begins and ends here. Pursuant to

Esparza, 124 S. Ct. 7, 11 (2003) Dockins, Lewis’s petitions for post-

(“unreaso nable application” is an conviction relief were denied based on the

“objectively unreasonable” application of PCHA court’s conclusion, affirmed by the

clearly established law as opposed to Superior Court, that “the Defendant does

“incorrect”). Finally, we must accept the have an absolute right to direct appeal, but

factual findings of the state court as they [defendants] must make efforts to

presumptively correct, a presumption the contact an attorney in that respect and I

petitioner may only rebut with clear and would submit based on Mr. Elash’s [trial

convincing evidence. 28 U.S.C. § counsel] testimony and based upon the

2254(e)(1). lack of any other substantive evidence that

he was not contacted within the 30 day

2. appeal period and, therefore, that there is a

waiver of the right to direct appeal.”

The Pennsylvania courts decided Appendix, Vol. 1 at 172-73 (emphasis

Lewis’s post-conviction petitions on added). Dockins, then, is a per se rule of

independent state law grounds concluding strict application which holds as a matter

that his ineffectiveness claim was of law that counsel acts reasonably in all

governed by Commonwealth v. Dockins.11 cases where a notice of appeal is not filed,

and the defendant is silent. The Supreme

some problems of precision.” Williams,

529 U.S. at 409. Our decision today does

not require that we explore this question. decision is not ‘contrary to... clearly

established Federal law’ simply because

11

We note that the mere fact that the court did not cite our opinions.... [A]

the Commonwealth courts failed to state court need not even be aware of our

mention Strickland is not dispositive of the precedents, ‘so long as neither the

question of whether the courts’ decisions reasoning nor the result of the state-court

adjudicating Lewis’s claim were contrary decision contradicts them.’” Esparza, 124

to clearly established federal law. As the S. Ct. at 10 (quoting Early v. Packer, 537

Supreme Court has held, “[a] state court's U.S. 3, 8 (2002)).

13

Court invalidated a similar rule in Flores- circumstances. Whether a rule inures to

Ortega. The challenged rule in that case the benefit or disadvantage of the

obligated counsel to file an appeal in all defendant, Strickland does not permit the

cases where the defendant had not imposition of such bright-line rules. As

expressly instructed that an appeal not be the Williams Court stressed, “we have

taken. 528 U.S. at 478. The Court quickly c o n sistently d e c l in e d t o i m p o se

concluded that the rule, known as the mechanical rules on counsel – even when

“Stearns rule,” 1 2 was con trary to those rules might lead to better

Strickland, holding: representation.... ‘[T]he purpose of the

effective assistance guarantee of the Sixth

Such a rule effectively Amendment is not to improve the quality

imposes an obligation on of legal representation... [but rather]

counsel in all cases either simply to ensure that criminal defendants

(1) to file a notice of appeal, receive a fair trial.’” 528 U.S. at 481

or (2) to discuss the (quoting Strickland, 466 U.S. at 689).

possibility of an appeal with Thus, the Pennsylvania courts’ application

the defendant, ascertain his of Dockins to Lewis’s ineffectiveness

wishes, and act accordingly. claims was “contrary to” clearly

We reject this per se rule as established law.

inconsistent with

Strickland’s holding that The Commonwealth does not

“the performance inquiry seriously contest this conclusion. Rather

must be reasonable the Commonwealth contends on brief that

considering all “the state courts found that counsel did

circumstances....” [T]hat ‘consult’ with appellant... [regarding] his

alone mandates vacatur and appellate rights.” Appellee Br. at 26.

remand. However, the Commonwealth backed

away from this assertion at oral argument,

Id. (quoting Strickland, 466 U.S. at 688)). conceding that none of the state courts

The Dockins rule operates in much the which reviewed Lewis’s claims during the

same manner: whereas the Stearns rule two rounds of post-conviction review

automatically deemed counsel ineffective made a finding as to whether Lewis’s

for failing to take an appeal where the court-appointed attorney consulted him

defendant was silent, Dockins holds that regarding his appellate rights following the

counsel always acts reasonably and may entry of the guilty plea, his sentencing or

not be found ineffective in such the trial judge’s denial of his post-trial

12

See United States v. Stearns, 68

F.3d 328 (9th Cir. 1995).

14

motion.13 Where the state court has not Flores-Ortega obligates counsel to

made a material finding, the usual course advise “the defendant about an appeal

is to remand to the district court to hold an when there is reason to think either (1) that

evidentiary hearing on the question. See a rational defendant would want to appeal

Solis, 252 F.3d at 294-95 (remanding (for example, because there are

under 28 U.S.C. § 2255 for evidentiary nonfrivolous grounds for appeal), or (2)

hearing). However, in this case such a that this particular defendant reasonably

hearing would likely be unproductive as demonstrated to counsel that he was

the relevant events occurred over 16 years interested in appealing.” 528 U.S. at 480.

ago. See Riley v. Taylor, 277 F.3d 261, Lewis pleaded guilty and does not seek to

294 (3d Cir. 2001) (en banc). Further, we appeal from a jury trial. The Supreme

believe the issue of trial counsel’s Court has held this is a “highly relevant

representation, following the sentencing factor” in deciding whether counsel was

proceeding and the trial judge’s ruling duty-bound to advise a defendant about his

denying the motion for leave to withdraw appellate rights, though the fact of a guilty

the guilty plea, was sufficiently litigated plea is not dispositive. Id. In guilty-plea

during the two evidentiary hearings held cases, our Strickland analysis must

on Lewis’s post-conviction applications in “consider such factors as whether the

state court to permit our adjudication of defendant received the sentence bargained

this question. for as part of the plea and whether the plea

expressly reserved or waived some or all

appeal rights.” Id. This case is unique in

13 that whether or not a plea agreement

The Superior Court’s PCHA

existed, Lewis is entitled to federal habeas

opinion mentions that “[t]rial counsel

relief stemming from trial counsel’s failure

admitted discussing possible grounds for

to advise him of his right to appeal from

appeal and mentions that none of the

the trial court’s denial of his motion to

grounds were of appellate merit.”

withdraw the guilty plea.

Appendix, Vol. II at 385. Trial counsel

testified at the PCHA hearing that “I know

Based on our review of the

he [Lewis] was upset [after he was

transcripts of the evidentiary hearings held

sentenced], but I do have a recollection of

in state court, it is clear that Elash did not

telling him that he probably didn’t have

meet with Lewis or otherwise attempt to

any appellate rights that were viable.” Id.

contact him after the senten cing

at 163. Counsel for the Commonwealth

proceeding or the post-trial motion was

conceded at oral argument that this

denied, although Lewis indicated an

testimony is ambiguous at best and could

interest in challenging his conviction. At

not support a finding that trial counsel

best, Elash could only recall speaking

consulted with Lewis within the meaning

briefly with Lewis in court following

of Flores-Ortega, and the Pennsylvania

sentencing, stating, “I know he was upset,

courts did not make such a finding.

15

but I do have a recollection of telling him withdraw the guilty plea that he filed 28

that he probably didn’t have any appellate days late, evidences an inattention to his

rights that were viable.” Appendix, Vol. 1 client’s interests, a neglect which caused

at 163. Regarding Lewis’s attempts to Lewis to forfeit his right of appeal. While

contact him after the sentencing and the trial counsel’s testimony alone supports

post-trial motion was denied, Elash this finding, our decision is further

testified, “I don’t have those records. You buttressed by the contemporaneous

know, if he did, I wouldn’t – he may evidence of Lewis’s attempt to timely

have... he might have had trouble getting assert his appellate rights. The trial judge

in touch with me.” Id. It is not clear from denied the post-trial motion filed by Elash

the hearing transcripts whether Elash was on April 16, 1987, and Lewis’s time to

aware that Lewis had filed a motion pro se appeal expired 30 days later on May 16,

to withdraw the guilty plea, but the motion 1987. On May 3, 1987, Lewis wrote to the

was entered on the trial docket and Elash Clerk of the Court stating, “[s]ince my

should have been aware of it. See id. at sentence of 30 to 60 years on March 3,

105. In any case, Elash testified that he 1987, I have received no correspondence

filed the motion to withdraw only after from John Elash[,] Esq. my attorney at

Lewis instructed him to do so, apparently hand, and I have no idea, what is

by correspondence. Id. at 162. At a happening, or what will happen. So im

minimum, this should have put Elash on [sic] asking for an extension of time, to

notice that Lewis may have been interested prepare my case in the proper order, and

in appealing the trial judge’s ruling and his

conviction. See Flores-Ortega, 528 U.S.

at 480 (citation omitted) (instructing

motion, Lewis alleged his plea was invalid

“courts must take into account all the

“due to inducement of promise from

information counsel knew or should have

Defendant[’]s attorney to combine all

known”).

charges as one (1) for one (1) lesser

sentence,” and ineffective assistance

Trial counsel’s testimony, coupled

resulting from trial counsel “not raising or

with the bare-boned post-trial motion14 to

arguing” to enforce the plea agreement and

advising him to plead guilty. Id. at 84.

Even if trial counsel believed any post-trial

14

The motion Elash filed on motion or appeal would be frivolous, his

Lewis’s behalf was three sentences in proper course would have been to follow

length and, as the basis for the motion, the procedures set forth in Anders v.

stated only that “Defendant avers that his California, 386 U.S. 738 (1967), or

plea was not knowingly or intelligently Commonwealth v. McClendon, 434 A.2d

entered.” Appendix, Vol. 1 at 87. No 1185 (Pa. 1981), and seek permission to

factual predicate was established nor legal withdraw from the case after giving notice

authority cited. Conversely, in his pro se to Lewis of his intention.

16

without any knowledge of the legal probability that, but for counsel’s deficient

system.” Appendix, Vol. 1 at 92. In June performance, he would have appealed.

of 1987, Lewis also wrote letters to the Flores-Ortega, 528 U.S. at 484. The

Pennsylvania State Bar Association and contemporaneous evidence of Lewis’s

the Disciplinary Counsel reporting Elash desire to challenge his conviction satisfies

for alleged misconduct in the handling of this requirement. In addition, Lewis has

his case and complaining that he had not also identified nonfrivolous points to raise

heard from Elash since the sentencing, on an appeal, among them ineffective

despite attempts to contact him. Id. at 94- assistance of counsel resulting from (1)

95. Finally, on July 13, 1987, Lewis wrote trial counsel’s failure to object and move

to the Clerk of the Court requesting to enforce the alleged plea agreement

information about “the present state, of when he was sentenced to consecutive

any appeal you may have submitted to the terms of 5 to 10 years of imprisonment on

Court in my behalf, and who is the lawyer the six robbery counts rather than to

of record.” Id. at 96. concurrent terms, and (2) trial counsel’s

failure to timely move to withdraw the

We believe this record compels a guilty plea when he did not get the benefit

finding that trial counsel’s conduct was of the alleged plea agreement. 15 See id. at

objectively unreasonable. We can think of 486 (“showing nonfrivolous grounds for

no strategic reason to explain why Elash appeal may give weight to the contention

failed to follow-up with Lewis either that the defendant would have appealed”).

following the sentencing or after the trial Lewis may raise these and all other claims

court denied the motion to withdraw, and on his direct appeal.

the Commonwealth offers none. The

ultimate decision to appeal rests with the III. CONCLUSION

defendant. Jones, 463 U.S. 745. Thus,

even if Elash concluded that any appeal The district court’s order denying

would be frivolous, he could not disregard the petition for a writ of habeas corpus is

the evidence of Lewis’s unequivocal desire reversed. This matter is remanded to the

to challenge his sentence and guilty plea,

and abandon his client at this critical stage

in the proceedings. See Evitts, 469 U.S. at 15

We note that although Lewis was

394 (counsel’s procedural error depriving

facing 10 to 20 years on each robbery

the defendant of his appeal rights “difficult

count, a decision to withdraw the guilty

to distinguish... from that of some who had

plea under the facts of this case would not

no counsel at all”), citing Anders, 386 U.S.

have been objectively irrational. Lewis

738 (add’l citation omitted).

was 36 years old and did not have a prior

record when he was convicted and

Finally, we hold that Lewis has

sentenced to 30 to 60 years of

demonstrated that there is a reasonable

incarceration.

17

district court with instructions that it issue

a writ of habeas corpus conditioned upon

the Commonwealth’s reinstatement of

Lewis’s right of first appeal within 45 days

from entry of the district court’s order

granting the petition.

18