Warren v. Kyler

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

9-7-2005

Warren v. Kyler

Precedential or Non-Precedential: Precedential

Docket No. 03-2190

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________

No. 03-2190

_______________________

DANIEL K. WARREN, JR.,

Appellant

v.

KENNETH D. KYLER,

THE DISTRICT ATTORNEY OF THE COUNTY OF

LEHIGH, THE ATTORNEY GENERAL OF THE STATE

OF PENNSYLVANIA,

Appellees

______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 02-CV-997)

District Judge: Honorable Marvin Katz

_______________________

Argued July 11, 2005

Before: ALITO and BECKER, Circuit Judges

and SHADUR, District Judge *

(Filed September 7, 2005 )

Mark Diamond (Argued)

Box 287356

Yorkville Station

New York, NY 10128

Counsel for Appellant

James B. Martin

District Attorney of Lehigh County

Matthew D. Weintraub (Argued)

Chief Deputy District Attorney

David J. Mussel

Assistant District Attorney

455 West Hamilton Street

Allentown, PA 18101-1614

Counsel for Appellee

________________________

* Honorable Milton I. Shadur, United States District Judge

for the Northern District of Illinois, sitting by designation.

2

OPINION OF THE COURT

________________________

SHADUR, District Judge:

Daniel Warren (“Warren”) is currently in the State

Correctional Institution at Huntingdon, Pennsylvania, serving

a prison sentence of 10 to 20 years imposed after he entered a

negotiated guilty plea to one count of burglary on October 9,

1998. Warren now claims that the Commonwealth’s

imposition of that sentence has violated his federal due

process rights, and he seeks federal habeas corpus relief under

28 U.S.C. §2254 (“Section 2254”) on that basis. Because we

conclude that the requirements of Section 2254 have not been

met, we affirm the District Court’s denial of habeas relief.

Factual and Procedural Background

Under the terms of Warren’s plea agreement, other

pending charges were dropped and the burglary was treated as

a “strike two” offense by the Commonwealth. That latter

aspect of the agreement meant that the Pennsylvania

mandatory sentencing statute, 42 Pa. Cons. Stat. §9714

(“Section 9714”), was applied during Warren’s sentencing.

At that time Section 9714(a)(1) provided:

Any person who is convicted in any court of this

Commonwealth of a crime of violence shall, if at the

time of the commission of the current offense the

person had previously been convicted of a crime of

violence and has not rebutted the presumption of high

3

risk dangerous offender...be sentenced to a minimum

sentence of ten years of total confinement,

notwithstanding any other provision of this title or

other statute to the contrary.

That “presumption of high risk dangerous offender” applied in

Warren’s case because the terms of Section 9714(b) were met: He

had a prior conviction for a crime of violence that had taken place

fewer than seven years before the charged “strike two” offense. To

rebut the presumption, Section 9714(c) required Warren to present

evidence to the court at a hearing and required the sentencing judge

to consider 12 case-specific factors before deciding whether the

evidence presented was sufficient. After finding that no evidence

presented had overcome the operable presumption against Warren,

the sentencing judge imposed the sentence mandated by Section

9714 on December 28, 1998.

Shortly thereafter Warren sought to have the court reconsider

the sentence imposed. But that effort was rebuffed on February 5,

1999 because Warren’s attorney had initiated a direct appeal to the

Superior Court of Pennsylvania. Eleven days later the direct appeal

was discontinued by Warren’s attorney. Then Warren’s later motions

seeking to revive his direct appeal by treating his submissions nunc

pro tunc were denied, effectively ending any direct review of

Warren’s sentence.

That chain of events formed the basis for Warren’s first

petition for post-conviction collateral relief under Pennsylvania’s

Post Conviction Relief Act, 42 Pa. Cons. Stat. §9541. Warren

claimed ineffectiveness of trial counsel because his direct appeal had

been discontinued without his consent. After post-conviction

counsel was appointed, an evidentiary hearing was conducted by the

post-conviction court to assess his claim on June 20, 2000. Shortly

4

after that hearing Warren filed motions claiming ineffectiveness of

his post-conviction counsel. On August 21, 2000 the post-conviction

court issued a ruling that dismissed both of Warren’s ineffectiveness-

of-representation claims, and Warren appealed that decision to the

Superior Court of Pennsylvania.

After the appeal had been filed, Warren submitted an

application to the Superior Court seeking a determination as to

whether his waiver of counsel as to that appeal was knowing,

intelligent and voluntary. In response the Superior Court remanded

the appeal to the post-conviction court for the purpose of conducting

a colloquy. On February 20, 2001 the post-conviction court

determined that the waiver had been knowing, intelligent and

voluntary, so that Warren continued to represent himself on his post-

conviction appeal.

In the midst of the just-described waiver proceedings, Warren

filed a second post-conviction petition on January 11, 2001. This

time he challenged the constitutionality of his sentence in light of the

Pennsylvania Supreme Court’s invalidation of Section 9714 in

Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000). But because

that second petition was filed while his original post-conviction

appeal was still pending, it was dismissed on January 22, 2001.

On December 14, 2001 the Superior Court disposed of all

issues related to Warren’s post-conviction challenges. First the court

affirmed the finding that Warren’s waiver of counsel on the appeal

had been knowing, intelligent and voluntary. It also affirmed the

rejection of the ineffectiveness claims made in Warren’s first post-

conviction petition. Finally, the court directly addressed the

constitutional claim raised by Warren in his second post-conviction

petition and explicitly declined to apply Butler (emphasis in

original):

5

It is axiomatic that a new rule of law, even if given full

retroactive effect, will not be applied to a collateral

proceeding attacking the conviction. Commonwealth

v. Tilley, 780 A.2d 649 (Pa. 2001). Instead, for a new

rule of law to be applied to a proceeding, the issue had

to be preserved at all stages, including on direct appeal.

Id.; see also Commonwealth v. Todaro, 701 A.2d 1343

(Pa. 1997)(a new rule of law is not applied in a

collateral attack on a conviction).1 In the present case,

Appellant did not raise the constitutionality of the

statute during his plea proceedings nor did he raise it

during direct appeal. Hence, it cannot be applied in

this collateral proceeding.

1

That analysis appears to overstate prior Pennsylvania law,

as summarized in Commonwealth v. Gillespie, 516 A.2d 1180, 1183

(Pa. 1986), in one respect:

Simply stated, a new rule of law to which we give full

retroactive effect, will not be applied to any case on

collateral review unless that decision was handed

down during the pendency of an appellant’s direct

appeal and the issue was properly preserved there, or,

as here, is non-waivable.

Because the Superior Court had found Warren’s claim to be non-

waivable, there was no need to preserve it “at all stages.” But

because Butler was not handed down during the pendency of

Warren’s direct appeal, the rejection of collateral review on that basis

was a correct application of the Pennsylvania Supreme Court’s

teaching.

6

Warren filed a petition for federal habeas corpus relief

under Section 2254 on February 12, 2002, raising three

objections to the state court proceedings. Two of those

objections concerned the state court’s refusal to restore his

direct right of appeal, and the third challenged the use of

Section 9714 in his sentencing. All three objections were

rejected, and the writ of habeas corpus was therefore denied,

when the District Court adopted the report and

recommendations of the magistrate judge on March 11, 2003.

Warren then filed a timely appeal in this court. We

granted Warren’s application for a certificate of appealability

as to two issues: (1) whether the failure to apply Butler

retroactively violated Warren’s due process rights, and (2)

whether the application of Section 9714's burden shifting

provision violated Warren’s due process rights independently

of the ruling on the first issue. Because the District Court’s

determination was based solely on the information contained

in the state court record, our review of those issues is plenary

(Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002)).

Federal Habeas Standards

To qualify for relief under Section 2254, Warren must

demonstrate that “he is in custody in violation of the

Constitution or laws or treaties of the United States” (Section

2254(a)). As already stated, he contends that the state has

violated his federal due process rights in either or both of two

respects, We address his contentions in turn.

Retroactivity as a Due Process Issue

7

As an initial basis for his claim that his due process

rights have been violated, Warren attacks the Pennsylvania

Superior Court’s decision not to apply Butler retroactively.

Although that argument raises the issue of retroactivity in the

context of habeas review, it is not one of the sort governed by

the Supreme Court’s standard articulated in Teague v. Lane,

489 U.S. 288 (1989), because we are not asked to decide the

applicability of a new federal rule of jurisprudence to an

already concluded state proceeding. Instead the issue here is

whether the Due Process Clause is implicated when a state

court declines to give retroactive effect to one of its own

decisions.

We previously addressed a closely related issue in

Fiore v. White, 149 F.3d 221 (3d Cir. 1998). After the

Pennsylvania Supreme Court had decided Commonwealth v.

Scarpone, 634 A.2d 1109 (Pa. 1993), interpreting a state

statute, Fiore sought through state post-conviction

proceedings to have that ruling applied retroactively to his

case. When the state court declined that request, he filed a

petition for federal habeas relief.

In reviewing his petition, we first noted that “Fiore is

entitled to relief only if federal law requires retroactive

application of Scarpone” (Fiore, 149 F.3d at 224). That

limitation on the scope of our review stems from the Supreme

Court’s reemphasis in Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) “that it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions,”

and it applies with equal force here.

As for the question that we could properly address on

habeas review--whether the United States Constitution

required the state to apply its decision on a question of state

law retroactively--we said this in Fiore, 149 F.3d at 224-25

(some citations omitted):

8

The district court held, and Fiore maintains on

appeal, that the Due Process and Equal

Protection Clauses of the Fourteenth

Amendment require retroactive application of

Scarpone. This conclusion, however, is at odds

with the Supreme Court’s longstanding position

that “the federal constitution has no voice upon

the subject” of retroactivity. Great Northern

Ry. Co. v. Sunburst Oil & Refining Co., 287

U.S. 358, 364 (1932). While the Court has

concluded that some federal criminal decisions

should apply retroactively, it has made clear that

state courts are under no constitutional

obligation to apply their own criminal decisions

retroactively. Thus, just as the Supreme Court

has fashioned retroactivity rules for the federal

courts based on principles of judicial integrity,

fairness, and finality, see Teague v. Lane, the

state courts are free to adopt their own

retroactivity rules after independent

consideration of these and other relevant

principles.

* * *

Consistent with the Supreme Court’s

admonition that federal courts not require

retroactive application of state judicial

decisions, this court has refused to require

application of new state decisions in habeas

proceedings.

We recognize of course that our decision in Fiore was

reversed by the Supreme Court in Fiore v. White, 531 U.S.

225 (2001)(per curiam). But we do not read that outcome to

9

call into question the validity of the retroactivity analysis we

expressed there.2 Instead the basis for the Supreme Court’s

reversal in Fiore was a determination that retroactivity

principles were not implicated at all. And that determination

stemmed not from any independent review of the state

decision, but rather from the Pennsylvania Supreme Court’s

response to a certified question that characterized its Scarpone

decision as a clarification of the statute, not as an

announcement of a new rule of law (531 U.S. at 228).

That outcome highlights the fact that it matters

whether a state decision has established a new rule of law or

merely clarified existing state law. But important as it may

be, we read nothing in Fiore that authorizes us to make that

kind of distinction based on our independent analysis of the

effect of a state court’s decision. Instead the earlier-identified

Estelle v. McGuire principle requires that we heed the state

court’s application of its own retroactivity principles.

In this instance, the Pennsylvania Superior Court

declined to apply Butler retroactively to Warren’s post-

conviction appeal because it concluded that Pennsylvania

retroactivity principles do not give retroactive force to new

rules of law in the context of a collateral proceeding. That

means that we are in precisely the same position as in Fiore,

and we hold that precisely the same conclusion is appropriate.

Moreover, it should be remembered that Fiore

involved a state court’s interpretation of a state criminal

2

To be sure, the potential for such an outcome was present

based on the Supreme Court’s having granted certiorari “to decide

when, or whether, the Federal Due Process Clause requires a State to

apply a new interpretation of a state criminal statute retroactively to

cases on collateral review” (Fiore, 531 U.S. at 226). But the Supreme

Court never reached the merits of that question, and because no

decision since then has cast doubt on our analysis, we continue to find

our approach persuasive.

10

statute, while we deal here with a state court’s interpretation

of the United States Constitution. It does not at all follow that

the Supreme Court’s certification of such a state law issue to

the Pennsylvania Supreme Court in Fiore suggests a like

inquiry as to the federal constitutional question that we are

called upon to resolve.

In short, Warren’s failure to receive the benefit of the

Butler decision was based on the Pennsylvania courts’

application of their own established retroactivity doctrines.

On habeas review we are in no position to second-guess the

state courts’ determination as to that state law issue. We must

rather review for a potential violation of federal law, and

because we conclude that nothing in the Constitution requires

states to apply their own decisions retroactively, we find no

such violation.

Indeed, even if it were to be assumed for the sake of

argument that the federal Constitution governs the question

whether Butler applies retroactively to a state collateral

proceeding, we see no ground for reversal here. Surely the

federal Constitution did not require the Pennsylvania Supreme

Court to give Butler greater retroactive effect than that

decision would have carried if it had been handed down by

the United States Supreme Court--and as we explain at the

end of the next section of this opinion, a United States

Supreme Court holding such as that embodied in Butler

would not be applicable retroactively in a federal collateral

proceeding.

Clearly Established Constitutional Violation

As an alternative basis for habeas relief, Warren

contends that the application of Section 9714's burden shifting

provisions at the time of his sentencing was itself a violation

of his federal due process rights. For him to succeed on that

claim, we must conclude that Warren’s sentencing “was

11

contrary to, or involved an unreasonable application of,

clearly established Federal law as determined by the Supreme

Court of the United States” (Section 2254(d)(1)).3

Williams v. Taylor, 529 U.S. 362 (2000) interpreted

Section 2254(d)(1) to establish two distinct paths that might

lead to invalidation of a state conviction on habeas review.

We rehearse those two alternatives briefly before analyzing

their possible applicability to this case.

First, federal habeas relief is warranted if the state

conviction was “contrary to...clearly established Federal law.”

That applies when a state court’s actions are “diametrically

different” from or “mutually opposed” to clearly established

law, either because the court ignores clear precedent

altogether or because it “confronts a set of facts that are

materially indistinguishable from a decision of this Court and

nevertheless arrives at a result different from our precedent”

(Williams, 529 U.S. at 406).

Second, federal habeas relief is also appropriate if the

state conviction “involves an unreasonable application

of...clearly established Federal law.” That encompasses cases

in which the state court applies the proper Supreme Court

precedent to specific facts in an objectively unreasonable way

(id. at 409), or where the court unreasonably extends (or

unreasonably refuses to extend) a clearly established rule (id.

3

Before we embark on that inquiry, it is important to note the

very limited role that the Pennsylvania Supreme Court’s Butler

decision plays here. Invalidation of Section 9714 on federal due

process grounds less than two years after being applied to Warren’s

case might perhaps indicate a reasonable basis on which to conclude

that the provision was inconsistent with constitutional principles, but

it does not say much about the much narrower Section 2254 inquiry

as to whether its application at Warren’s sentencing was objectively

unreasonable in light of United States Supreme Court holdings.

12

at 407).

In either case we must first identify the applicable

“clearly established Federal law.” In that regard it is clear

from the terms of Section 2254(d)(1) that only Supreme Court

law is included, and Williams further narrows the field to the

holdings as opposed to the dicta of that Court (id. at 412).

And we do not consider those holdings as they exist today,

but rather as they existed “as of the time of the relevant state-

court decision” (id.).

Also relevant is the more difficult question pertaining

to the appropriate level of particularity with which to view

Supreme Court holdings for purposes of Section 2254 review.

In Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004) we

noted that “if one examines the Supreme Court decisions at a

broad level of generality, the universe of state decisions that

may be contrary to those decisions will expand.” And indeed

a broad view might also be expected to increase the rate at

which a state court’s application of (or failure to apply)

Supreme Court holdings would be viewed as unreasonable.

But based on our review of Supreme Court jurisprudence, we

ultimately concluded that a “fact-specific” and “sharply

focused” view of Supreme Court holdings is required for

Section 2254 purposes (id. at 148-49).

Given that analytical framework, we cannot conclude

that the state court’s application of Section 9714's burden-

shifting provision at the time of Warren’s sentence was an

error that satisfies Section 2254's requirements for habeas

relief. Warren’s argument to the contrary rests on his

assertion that the provision violates the general constitutional

principle that defendants must be viewed as innocent until

proved guilty beyond a reasonable doubt. To that end he cites

In re Winship, 397 U.S. 358, 364 (1970). That case--and

many others since--establish quite clearly that any

presumption against Warren as to an essential factual element

of the charged burglary would be unconstitutional and would

13

warrant habeas relief.

But the Section 9714 presumption did not apply to an

element of the burglary offense. It applied instead in the

context of determining the severity of punishment. And

whether the Winship principle applies to that sort of situation

has been the subject of significant uncertainty in Supreme

Court thought--on that score, compare the discussion in such

cases as Mullaney v. Wilbur, 421 U.S. 684, 698 (1975),

Patterson v. New York, 432 U.S. 197, 206-11 (1977) and

McMillan v. Pennsylvania, 477 U.S. 79, 84-91 (1986)

(addressing the differences between those two earlier cases).

McMillan in particular noted that “the extent to which

due process forbids the reallocation or reduction of burdens of

proof in criminal cases” was an unsettled question (id. at 86),

and it expressed an “inability to lay down any ‘bright line’

test” (id. at 91). Even so, the opinion did provide several

guideposts that are relevant to the inquiry here. For example,

the Court acknowledged that the Due Process Clause does not

permit States to discard the presumption of innocence (id. at

86-87). At the same time, it noted that the prosecution is not

relieved of its burden to prove guilt if a sentencing factor

“only becomes applicable after a defendant has been duly

convicted of the crime for which he is to be punished” (id. at

87). Based on that--as well as a number of other factors that

we need not address here in detail4 --McMillan concluded that

4

Of course, were we faced with the task of assessing the

constitutionality of Section 9714 as a matter of first impression (as we

are not), a closer analysis of those other factors--such as the extent to

which the sentencing factor alters the range of the sentence, the

question whether the sentencing factor triggers a mandatory minimum

as opposed to a mandatory maximum, or the likelihood that the

sentencing factor could be used by the legislature to evade the

requirements of Winship--would be required. In particular, we note

that although Mullaney provides support for Warren’s argument, we

14

the application of a lower standard of proof to a sentencing

factor is not always problematic in due process terms.

Just months before Warren’s sentencing, Almendarez-

Torres addressed many of the same questions the Court had

faced in McMillan. While Almendarez-Torres did not decide

the precise question of what burden of proof should apply

when recidivism is used to enhance criminal punishment, it

confirmed that recidivism need not be treated as an element of

the offense to be charged as part of the indictment and proved

beyond a reasonable doubt to a jury (523 U.S. at 247). In

addition the Court held (id. at 244-45) that the outcome of the

due process analysis is unchanged even if recidivism is used

to alter the maximum penalty for a crime, rather than the

mandatory minimum sentence as was the case in McMillan.

To return to the Section 2254 standards, we must now

decide whether Pennsylvania’s application of Section 9714

was contrary to or involved an unreasonable application of the

cases just described. We conclude that neither is the case.

As to the first half of that inquiry, the answer is clear.

None of those cases dealt with the precise issue of whether a

presumption of the sort created by Section 9714 can be

applied during sentencing. Hence we cannot conclude that

the state’s application of such a presumption was “contrary

to...clearly established Federal law.”

Whether that presumption unreasonably applies any

principle clearly established by Supreme Court precedents is a

somewhat closer question, but one that we also answer in the

negative. In addressing that question, we are mindful that we

are not to decide whether we agree with the state court’s

application of Supreme Court holdings, but rather “whether

the state court’s application of clearly established federal law

cannot conclude in light of McMillan and Almendarez-Torres that the

state court’s decision in this case was “contrary to, or involved an

unreasonable application of clearly established federal law.”

15

was objectively unreasonable” (Williams, 529 U.S. at

409)(emphasis added)). Even were we to conclude that the

state court’s application of Supreme Court holdings was

incorrect or erroneous, we would not be in a position to issue

the writ of habeas corpus unless we were also to conclude that

the application of clearly established Supreme Court doctrine

was unreasonable (id. at 411).

Both McMillan and Almendarez-Torres provide a

reasonable basis of support for the position that a presumption

that imposes a burden on a defendant may be constitutionally

acceptable if it is triggered by the offender’s recidivism and if

it applies only after the state has satisfied its burden to prove

all facts necessary for conviction. Thus we cannot conclude

that the state court’s decision to apply Section 9714 to

Warren’s sentence was an objectively unreasonable

application of clearly established federal law.5

Finally, we note the obvious: Much has happened with

respect to sentencing and sentencing factors in the years since

Warren was imprisoned. Almendarez-Torres was just the first

in a series of recent Supreme Court cases dealing with such

issues that includes Apprendi v. New Jersey, 530 U.S. 466

(2000) and has culminated recently with United States v.

Booker, 543 U.S. __, 125 S.Ct. 738 (2005). But we need not

consider whether those new cases change the constitutional

5

It is worth recalling the precise nature of the presumption at

play in Warren’s sentencing. Section 9714 did not establish a

presumption as to the prior conviction itself -- to the contrary, the fact

of the prior conviction was admitted by Warren as part of his plea

agreement. Instead the presumption acted only once the recidivism

was established. In the context of a sentencing regime that simply

imposes a different sentence based on the fact of a prior conviction,

Section 9714 actually gave the judge more discretion to impose the

lower sentence. That makes the Section 9714 presumption quite

different from any of the Supreme Court cases discussed above.

16

analysis just described, because we have held that those new

holdings are not applicable retroactively to cases on collateral

review (as to Apprendi, see United States v. Swinton, 333

F.3d 481, 491 (3d Cir. 2003); as to Booker, see Lloyd v.

United States, 407 F.3d 608, 613-15 (3d Cir. 2005)).

Conclusion

Federal habeas relief is available under Section 2254

only if a prisoner demonstrates that “he is in custody in

violation of the Constitution or laws or treaties of the United

States.” We granted Warren a certificate of appealability to

review two potential claims along those lines, but our review

leads us to conclude that neither claim satisfies Section

2254’s requirements.

Nothing in the federal Constitution compels a State to

apply its criminal decisions retroactively, and we lack the

authority to review the State’s own application of its

retroactivity principles. In substantive terms, the application

of a presumption against Warren that affected only the length

of his sentence based on a prior conviction was neither

contrary to nor an unreasonable application of the clearly

established Supreme Court jurisprudence that existed at the

time the sentence was imposed. For those reasons, the order

of the District Court is AFFIRMED and Warren’s petition for

a writ of habeas corpus is DENIED.

17