Petition for Writ of Certiorari — William Burton, Petitioner v. Brian Emig, Warden, et al.

No. _________________

________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________

WILLIAM BURTON,

Petitioner

v.

WARDEN JAMES T. VAUGHN CORRECTIONAL CENTER,

Respondent

and

ATTORNEY GENERAL DELAWARE,

Respondent

________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

APPENDIX VOLUME I (A1-115)

________________________________________________________________________

Christopher S. Koyste, Esq. (#3017)

Law Office of Christopher S. Koyste, LLC

709 Brandywine Boulevard

Wilmington, Delaware 19809

(302) 762-5195

Counsel of Record for Petitioner

William Burton

Dated: May 7, 2024

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 22-3256

________________

WILLIAM D. BURTON III,

Appellant

v.

WARDEN JAMES T. VAUGHN CORRECTIONAL CENTER;

ATTORNEY GENERAL DELAWARE

________________

On Appeal from the District Court

for the District of Delaware

(D.C. No. 1:19-cv-01475)

District Judge: Honorable Maryellen Noreika

________________

Submitted Under Third Circuit L.A.R. 34.1(a)

on February 1, 2024

Before: KRAUSE, PORTER, and CHUNG, Circuit Judges

(Filed: February 7, 2024)

________________

OPINION*

_________________

*

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding

precedent.

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KRAUSE, Circuit Judge.

William Burton appeals the District Court’s order denying his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Discerning no basis for habeas relief, we will

affirm.

I.

DISCUSSION1

Under AEDPA, we may not grant habeas relief on “any claim that was adjudicated

on the merits in State court proceedings” unless the state court’s decision was either

“contrary to, or involved an unreasonable application of,” clearly established Supreme

Court precedent or 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). Conversely,

if the state courts did not adjudicate a claim on the merits, we review the claim de novo,

Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009), which requires us to “exercise [our]

independent judgment when deciding both questions of constitutional law and mixed

constitutional questions,” Williams v. Taylor, 529 U.S. 362, 400 (2000) (O’Connor, J.,

concurring).

Burton was convicted of various drug offenses after a search of his residence

uncovered evidence that he was dealing cocaine and marijuana. His habeas petition

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The District Court had jurisdiction under 28 U.S.C. § 2254, and we have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District Court ruled on

Burton’s petition without an evidentiary hearing, “we review the state courts’

determinations under the same standard that the District Court was required to apply.”

Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009).

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claims that he is entitled to relief because the Delaware Supreme Court’s rejection of his

ineffective assistance of counsel claim (A) was based on an unreasonable factual

determination that Burton knowingly consented to stipulate to certain pieces of evidence;

(B) erroneously failed to apply the Supreme Court’s holding in McCoy v. Louisiana, 584

U.S. 414 (2018); and (C) was an unreasonable application of Strickland v. Washington,

466 U.S. 668 (1984). None of these contentions is persuasive.

A.

The State Court’s Factual Determinations

The Delaware Supreme Court’s conclusion that Burton “knowingly, intelligently,

and voluntarily agreed to stipulate to the State’s drug evidence” was not based on an

unreasonable factual determination. Burton v. State, No. 287, 2018 WL 6824636, at *2

(Del. Dec. 26, 2018). A state court decision is based on “an unreasonable determination

of the facts,” 28 US.C. § 2254(d)(2), only when the court’s factual findings are

“objectively unreasonable in light of the evidence presented in the state-court

proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. §

2254(d)(2)). The state court’s factual findings are “presumed correct,” and a habeas

petitioner bears the burden of rebutting this presumption by “clear and convincing

evidence to the contrary.” Id.

Burton has not carried that heavy burden. On the contrary, the record amply

supports the state court’s finding that Burton consented to his counsel’s stipulation. For

example, before Burton’s trial started, his counsel represented to the trial court that he

“met with [Burton] on two occasions and discussed with him the nature of a stipulated

trial.” App. 99. Burton did not object or contradict this representation in any way. And

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although Burton now asserts that his counsel never discussed the stipulation with him

prior to trial, his counsel advised the court in a sworn affidavit that it was his regular

practice to do so with his clients. The state court was entitled to credit counsel’s

recollection, as well as his contemporaneous statement at trial, over Burton’s

unsubstantiated assertion years after the fact. See, e.g., Campbell v. Vaughn, 209 F.3d

280, 291 (3d Cir. 2000) (concluding that the state court did not make an unreasonable

determination of facts because “[a] reasonable fact-finder could discount [Petitioner’s]

testimony and credit his trial counsel’s”).

B.

Structural Error under McCoy

The Delaware Supreme Court did not address Burton’s argument that his

ineffective assistance of counsel claim should be assessed under McCoy, rather than

Strickland. Accordingly, we review the claim de novo. See Lewis, 581 F.3d at 100.

Burton’s contention that the state court’s decision was contrary to McCoy rests on a

shaky foundation to begin with. Because McCoy was decided after Burton’s conviction

became final in 2016, it can only be applied retroactively on collateral review if McCoy

established a “[n]ew substantive rule[]” of constitutional law or announced a new

“watershed rule[] of criminal procedure.” Schriro v. Summerlin, 542 U.S. 348, 351–52

(2004) (cleaned up).

Moreover, the Supreme Court has observed not only that the “watershed rule[] of

criminal procedure” exception is “extremely narrow,” id. at 352 (internal citations and

quotation marks omitted), but that “no new rules of criminal procedure can satisfy the

watershed exception,” Edwards v. Vannoy, 141 S. Ct. 1547, 1559 (2021). For that

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reason, two Courts of Appeals have recently concluded that McCoy did not establish a

watershed rule. See Smith v. Stein, 982 F.3d 229, 234–35 (4th Cir. 2020); Christian v.

Thomas, 982 F.3d 1215, 1223–25 (9th Cir. 2020). We have not yet addressed that issue,

but we need not do so here because McCoy would not afford Burton relief even if it could

be applied retroactively to his case.

Burton argues that “the District Court unreasonably, and in contradiction of clearly

established federal law, assessed Mr. Burton’s claim [as] a standard ineffective assistance

of counsel claim under Strickland rather than as a violation of autonomy claim under

McCoy.” Opening Br. 25 (internal quotation marks omitted). But this contention glosses

over the narrow holding in McCoy, which established there was structural error where

counsel admitted his client’s guilt to the jury over the client’s vociferous objections and

insistence that he was innocent. 584 U.S. at 423–24, 426–28. In view of that structural

error, the Supreme Court concluded that the petitioner did not need to demonstrate

prejudice under the traditional Strickland standard. Id. at 426–28.

The circumstances of Burton’s case are materially different in two respects. First,

Burton’s counsel stipulated to certain incriminating evidence; he did not make a wholesale admission of guilt. See United States v. Wilson, 960 F.3d 136, 143 (3d Cir. 2020)

(noting that the McCoy Court did not clearly establish what kinds of concessions count as

“conceding guilt”). Second, there is no evidence that Burton ever objected to the

stipulation, even when his counsel represented to the trial court that the two had

discussed the strategy and agreed to stipulate to the State’s evidence. Importantly for our

purposes, in the absence of such an objection, counsel’s stipulation could not constitute a

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structural error, and thus did not foreclose the need for Burton to establish prejudice from

his counsel’s alleged ineffective assistance. See Florida v. Nixon, 543 U.S. 175, 192

(2004).

In view of the material differences between McCoy and the claims presented here,

the Delaware Supreme Court did not err in applying Strickland, rather than McCoy, to

Burton’s ineffective assistance of counsel claim.

C.

Ineffective Assistance of Counsel under Strickland

Finally, the Delaware Supreme Court did not unreasonably apply Strickland in

denying Burton’s ineffective assistance of counsel claim. A state court decision is “an

unreasonable application of” clearly established federal law if the court “correctly

identifies the governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case.” Williams, 529 U.S. at 407–08.

To prevail on his Strickland claim before the Delaware Supreme Court, Burton

had to show (1) that his counsel’s performance at trial or on appeal fell below “an

objective standard of reasonableness,” Strickland, 466 U.S. at 688, and (2) that he was

prejudiced by counsel’s inadequate performance, meaning that there was “a reasonable

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

would have been different.” Id. at 694. Because Burton’s claim comes to us on collateral

review, our analysis of that claim is “doubly deferential.” Cullen v. Pinholster, 563 U.S.

170, 190 (2011) (internal citation and quotation marks omitted). We must presume both

that counsel’s conduct fell “within the ‘wide range’ of reasonable professional

assistance,” and that the state court reasonably determined that counsel was not

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ineffective. Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S.

at 689).

Burton has not overcome this presumption. As the Delaware Supreme Court

explained, he cannot show prejudice because, even putting the stipulation aside, the State

introduced “overwhelming” admissible evidence of Burton’s guilt. Burton, 2018 WL

6824636, at *2. That evidence included 28.45 grams of cocaine and .93 grams of

marijuana, various drug paraphernalia discovered in Burton’s room, and a medical

examiner’s report confirming that the substances recovered from Burton’s residence were

marijuana and cocaine. Based on this evidence, a reasonable factfinder could have

inferred that Burton was distributing the cocaine. See United States v. Rodriguez, 961

F.2d 1089, 1092 (3d Cir. 1992) (explaining that “[w]hen a defendant is found in

possession of a sufficiently large quantity of drugs, an intent to distribute may logically

be inferred from the quantity of drugs alone”).

II.

CONCLUSION

For the foregoing reasons, we will affirm the District Court’s denial of Burton’s

habeas petition.

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