Petition for Writ of Certiorari — Paul A. Brown, Petitioner v. Tom McGinley, Superintendent, State Correctional Institution at Coal Township, et al.
Supreme Court briefJan 22, 2025
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No. 24-A
Supreme Court, U.S.
FILED
IN THE SUPREME COURT OF THE UNITED STATES
JAN 2 2 2025
OFFICE OF THE CLERK
PAUL BROWN,
Petitioner,
v.
THOMAS Me GINLEY, Superintendent Coal Township SCI, et. al.
1
Respondent,
ON PETITION FOR WRIT OF CENTIORARI TO
THE THIRD CIRCUIT COURT OF APPEALS
^
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PETITION FOR WRIT OF CERTIORI
PAUL BROWN MD-1590
Pro Se
SCI-Coal Township
1 Kelley Drive
Coal Township, PA 17866
QUESTIONS PRESENTED
Brown alleged that trial counsel was ineffective for explicitly advising him to plea guilty
to charge not found in the indictment, in a plea colloquy where trial court accepted Brown's
guilty plea without him been informed of the mandatory cannotes for a valid plea Counsel's
promise and incorrect advice misled Brown in believing he would receive a 10 yrs. sentence
arising from plea agreement with DA and judge, counsel admitted in court that the sentence was
illegal and that Brown all along maintanied his innocent. Brown try to withdraw his guilty plea at
sentencing but counsel coerced him to take the deal that did not exist, Brown was convicted in
large part by counsel's admission of guilt at plea hearing and Brown pleading guilty. The case
thus present the following questions.
I Did the third Circuit err in misapplication of Strickland and Slack when Brown had made a
substantial showing of undisputed factual evidence apparent on the record that his plea was
entered involuntarily and counsel was ineffective for providing incorrect advice a decision
conflict with it's and other circuit and contrary to clearly established Federal law and 28 U.S.C. §
2254(d)(1) & (2).
II Did the Third Circuit err affirming the denial of Brown's § 2254 petition where the District
Court failed to conduct an evidentiary hearing to resolve the factual disputes.
1
LIST OF PARTIES
[ ] All parties appear in the caption of the case on the cover page.
ty| All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
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TABLE OF CONTENTS
OPINIONS BELOW
1
JURISDICTION
J
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
2
STATEMENT OF THE CASE
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REASONS FOR GRANTING THE WRIT
B
CONCLUSION
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INDEX TO APPENDICES
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TABLE OF AUTHORITIES
CASES
Alleye v United States, 133 S.Ct. 2151 (2013)..................................
.20
Anders v California, 386 U.S. 738 (1967).........................................
.27,28,32
Apprendi v New Jersey, 530 U.S. 466 (2000)...................................
18,19,20,32
Blackledge v Allison, 431 U.s. 63 (1977)..........................................
.28,30,33
Bousley v United States, 523 U.S. 614 (1998)..................................
17,32
Boykin v Alabama, 385 U.S. 238 (1969)...........................................
15,16,28,32
Bradshaw v Stumpf, 545 U.S. 175 (2005)..........................................
15,16,32
Brady v United States, 397 U.S. 742 (1970)......................................
16,18,28,32
Campbell v Rice, 302 f.3d 892, 898 (9th Cir. 2002)..........................
13
Charlton v Davis, 439 F.3d 369, 372 (7th Cir. 2005)........................
18
Cole v Young, 817 F.2d 412,423 (7th cir. 1987)...............................
16,32
Commonwealth v Alvardo, 276 A.2d 526 (1971)..............................
.24
Commonwealth v Archer, 722 A.2d 203, 210 (Pa. Super. 1988).......
.22
Commonwealth v Campbell, 304 A.2d 121 (1973)............................
15
Commonwealth v Dotzman, 588 A.2d 1312, 1317 (Pa. Super. 1991).
.22
Commonwealth v evans, 252 A.2d 689, 690 (1969)..........................
13
Commonwealth v Fuller, 579 A.2d 879, 884-85 (1990).....................
.20
Commonwealth v Ingram, 316 A.2d 77, 80 (1974)............................
15
Commonwealth v Johnson, 875 A.2d 328 (Pa. Super. 2005).............
13
Commonwealth v Johnson, 910 A.2d 60 (Pa. Super. 2006)...............
.20
Commonwealth v King, 234 A.3d 549 (2020)....................................
19
W
Commonwealth v Liach, 111 A.2d 1057 (Pa. 2001)
17
Cooke v State, 977 A.2d 803 (Del. 2009)
.26,27,28
Davis v Ayala, 576 U.S. 257,271 (2015)
.34,35
Dejonge v Oregon, 299 U.S. 353, 362 (1937)
18,20,32
Dorszynski v United States, 418 U.s. 424,455-57 (1974)
.23
Ex Parte Bain, 121 U.S. 1 (1987)
18,19,20,32
Faretta v California, 422 U.S. 806 (1975)
.28,32
Fontaine v United States, 411 U.S. 213, 215 (1973)
,32,33,35
Fooks v Superintendent, 96 F.4th 595 (3d Cir. 2023)
10,34
Glover v United States, 53 U.S. 198,203 (2001)
.23,32
Henderson v Morgan, 426 U.S. 637 (1976)
15,16,18,32
Hill v Lockhart, 474 U.S. 52 (1985)
9,29,32,33,34,35
Howell v Superintendent Rockview SCI, 939 F.3d 260 (3d Cir. 2019)
In Re Winship, 397 U.S. 358 (1970).
.34
16,32
Johnson v Plappert, 2024 U.S. App. Lexis 12335 (6th Cir. 2024)
16
Jones v United States, 526 U.S. 227 (1999)
.21
Jordan v Hepp, 831 F.3d 837, 849-50 (7th Cir. 2016)
,9,34
Kentucky v Stincer, 482 U.S. 730 (1987)
12,13
Lafler v Cooper, 566 U.S. 156 (2012)
.29,32
lambert v Blackwell, 387 F.3d 210,234 (3d Cir. 2004)
34
Lee v United States, 582 U.S. 357 (2017)..............
.25,27,28,32
Marchibroda v United States, 368 U.S. 487 (1962)
.24,28,30
McCarthy v United States, 394 U.S. 459 (1969)....
16,18,32
V
McCoy v Louisana, 584 U.S. 414 (2018)
.26,28,32
Miller-El v Cockrel, 537 U.S. 322 (2003)
,22,23
Moore v United States, 571 F.2d 179,183 (3d Cir. 1978)
.23
Mullaney v Wilber, 421 U.S. 684 (1975).............
16
Neder v United States, 527 U.S. 1 (1998)............
.32
North Carolina v Alford, 400 U.S. 25,31 (t970)
17
.25,29,32
Padilla v Kentucky, 559 U.S. 356 (2010)
Parke v Raley, 506 U.S. 20 (1962)
.28
People v Ochoa, 26 Cal.4th 398 (2011)
13
Pitts v United States, 763 F.2d at 201
34
Pointer v Texas, 380 U.S. 400,404 (1965)
16,32
Rabe v Washington, 405 U.S. 313 (1972)
18,19,20,32
Richardson v Superintendent Coal Twp. SCI, 905 F3d 750 (3d Cir. 2018)
,23,34
Roe v Flores-Ortega, 528 U.S. 470 (2000)..................................................
,32
,22,23
Rosales-Mireles v United States, 138 S.Ct. 1897 (2018)
.33
Rose V Clark, 478 U.S. 570 (1986)
Santobella v New York, 404 U.S. 257 (1978)
.23,24.32
Sandstorm v Montana, 442 U.S. 510 (1979)
17,32
Saunders v United States, 373 U.S. 1 (1963),
.32,33,35
Schulp v Delo, 513 U.S. 298 (1995)
18,20,32
,33
Silber v United States, 370 U.S. 717 (1962).........................................
C.oX't V
\^|k/
V\
«-
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t
r
*■
r »• f ♦
2.0
8,9
Slack v McDaniel, 529 U.S. 473 (2000)
Smith v O'Grady, 312 U.S. 329, 334 (1941)
18,32
Solen v Helm, 463 U.S. 277, 293 (1983)
.20,32
State v Carter, 270 Kan. 426,14 P.3d 1138 (2000)
27,28
Stirone v United States, 361 U.S. 212 (1960)
.,19,20,32
Strickland v Washington, 466 U.S.668 (1984)
8,9,29,30,32,33,35
Taylor v Kentucky, 436 U.S. 478 (1978)
32
Teague v Scott, 60 F.3d 1167 (5th Cir. 1995)
9
Tollett v Henderson, 441 U.S. 258, 267 (1973)
32
United States v Adams, 634 F.2d 830, 839 (5th Cir. 1981)
14
United States v Atkinson, 297 U.S.157,160 (1936)
.33
United States v Bazzano, 570 F.2d 1120,1137-38 (3d Cir. 1977)
.23
United States v Birdwell, 887 F.2d 643, 645 (5th Cir. 1989)
34
United States v Booker, 543 U.S. 220 (2005)
,22,23
United States v Brown, 479 F.2d 1170, 1172-73 (2nd Cir. 1973)
.21,23
United States v Bruce, 976 F.2d 552 (9th Cir. 1992)
13,14
United States vCronic, 466 U.S. 648 (1984)
.27,28
United States v Daraio, 445 F.3d 253,259-60 (3d Cir. 2006)
21
United States v Faweitt, 115 F.2d 764, 767 (3d Cir. 1940)
19,21
United States v Gagnon, 470 U.S. 552 (1985)
13
United States v Harra, 985 F.3d 196,221-22 (3d Cir. 2021)
.21
United States v Harrell, 751 F.3d 1235, 1239 (11th Cir. 2014)
14
United States v Jefferies, 908 F.2d 1520 (11th Cir. 1990).
♦. *
W\
.24,25
United States v Loughery, 905 F.2d 1014, 1018 (D.C. Cir. 1990)
,25
United States v Miles, 10 F.3d 1135,1140 (5th Cir. 1993)
14
United States v Miller, 471 U.S. 130, 140 (1985)
20
United States v Munoz-Fontanez, 61 F.4th 212, 214 (1st Cir. 2023)
.23
United States v O'Hagan, 139 F.3d 641 (8th Cir. 1998)
18,21
United States v Pena, 720 F.3d 561, 570 (5th Cir. 2013)
14
United States v Schweitzer, 454 F.3d 197 (3d Cir. 2006)
16
United States v Scott, 625 F.2d 623, 625 (5th Cir. 1980)
.34
United States v Sepling, 944 F.3d 138,145 (3d Cir. 2019)
.23
United States v Taylor, 139 F.3d 924 (D.C. Cir. 1998)
.25
United States v Timmreck, 441 U.S. 780 (1975)
32,33,35
United States v Valazquez, 482 F.2d 139,142 (2nd Cir. 1973)
,21,22,23
United States v Valez Carrero, 77 F.3d 11 (1st Cir. 1996)
.25
Werts v Vaughn, 228 F.3d 178,193 (3d Cir. 2000)
.21
Wiggins v Smith, 539 U.S. 510 (2003)
8,32
Williams v Taylor, 529 U.S. 362 (2000)
8,32
STATUTES
Fed. R. crim. P. 11
13,14
Pa. R. Crim. P. 564
18
Pa. R. Crim. P. 590
14,15,21
18 Pa. C. S. § 1102(c)
.20
18 Pa. C. S. §2301
17,18
18 Pa. C. S. § 2502(a)
16,17,18
18 Pa.C.S. § 2503(a)
16
18 Pa.C.S. § 901(a), (c)
17,18
28 U.S.C. § 1254
1
28 U.S.C. § 2254
.1^53.3, 8, 9,10, 34
42 Pa.C.S. § 9721(b)
21
U.S. Constitution Amendment V
2
U.S. Constitution Amendment VI
2
U.S. Constitution Amendment XIV
2
OTHERS
ABA Project on Minimum Standards for Criminal Justice Standards Relating to Appellate
23
Review of Sentence § 2.3(o)
ABA Project on Minimum Standards for Criminal Justice Standards Relating to Plea of Guilty
§ 3.3(c)
14
Berkowitz, 60 Iowa L. Rev. 205, 208-212 (1974)
,23
Hashimoto, Resurrecting Autonomy. The Criminal Defendant Right to control the case. 90
27
B.U.L. Rev. 1147,1178 (2012)
V*
IN THE SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
The order and opinion of the Third Circuit Court of Appeals appears at Appendix A to
the petition in case no. 23-2376. The judgment is unpublished.
The opinion of the United States District Court of Appeals appears at Appendix B to the
petition and is unpublished
The order of the United States district court denying habeas corpus relief appears at
Appendix C. The judgment is unpublished.
JURISDICTION
The date on which the United States Court of Appeals decided my case was 3/5/2024. A
timely petition for rehearing to the Court was denied on 8/28/2024. App. K An extension of time
to file the petition for writ of certiorari was granted to and including January 25, 2025 on
11/15/2024 in Application No. 24A488. App. J
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254 (1)
1
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
The following statutory and constitutional provisions are involved in this case.
U.S. CONST., AMEND. V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of the Grand Jury, except in cases arising in the land or naval forces,
or in Militia, when in actual service in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
U.S. CONST., AMEND. VI
in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
U.S. CONST., AMEND. XTV
Section 1. Allpersons bom or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equla protection of the laws.
Z
28 U.S.C.§2254
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in violation of the Construction or laws
or treaties of the United States.
(b)(1) An application for writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted nuless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process inefectiveto protect the rights of the
applicant.
(2) An application for writ of habeas corpus may be denied on the merits, notwithstanding the
failure
of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through counsel, expressly waives the
requirement.
(c) An applicant shall not be deemed to hav exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the right under the law of the Stateto raise, by
any available procedure, the question presented.
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the claim—
3
(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.
(e)(1) In a proceeding instituted by an application for writ of habeas corpus by a person in
custody pursuant to a judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factural basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on tyhe claim unless the applicant shows that(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factural predicate that could not have been previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the evidence adduced in such State court
proceeding to support the State court's determination of a factual issue made therein, the
applicant, if able, shall produce that part of the record pertinent to a determination of tyhe
4
sufficiency of the evidence to support such determination. If the applicant, because of indigency
or other reason is unable to produce such part of the record, then the State shall produce such part
of the record and the Federal court shall direct the State to do so by order directed to an
appropriate State official. If the State cannot provide such pertinent part of the record, then the
court shall determine under existing facts and circumstances what weight shall be given to the
State court's factural determination.
(g) A copy of the official records of the State court, duly certified by the clerk of such court to be
true and correct copy of a finding, judical opinion, or other reliable written indicia showing such
a factural determination by the state court shall be admissible in the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings
brought under this section, and any subsequent proceedings on review, the court may appoint
counsel for an applicant who is or becomes financially unable to afford counsel, except as
provided by a rule promulgated by the Supreme Court pursuant to statutory authority.
Appointment of counsel under this section shall be governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel found during Federal or State collateral posrconviction proceedings shall not be a ground for relief in a proceeding arising under section
2254.
5
STATEMENT OF THE CASE
Brown was convicted of attempted homicide and aggravated assault arising from a
incident with his wife and son. Mrs. Brown gave statement to police that the incident arose from
Brown making sexual advance when she refused an argument developed that became physical
and Brown stop the attack voluntary. The legislator intend renunciation for when a actor avoided
his criminal conduct by voluntary and complete withdrawal thus avoided the crime 18 Pa. C. S. §
901(c). The affidavit of probable cause made no reference of Brown attempting to kill anybody.
Brown was charged with Criminal Attempt 18 Pa. C. S. § 901(a) in Information. DA did not file
motion to amend information. Brown was legally on notice to defend Criminal Attempt which
could be for rape, robbery for example.
At plea hearing counsel admitted guilt over Brown, express objections. Counsel advised
Brown of a 10 yrs. sentence for two assault charges arising from plea agreement with DA and
judge. At sentencing and PCRA hearing the DA stated on the record that it was in the range of
10-15 on the low end and 20-30 on the high for 1 attempted homicide and 1 aggravated assault.
Counsel testified at PCRA hearing that; the DA wanted 10 yrs., the sentence was illegal,
we talk on several occasions when the charge was change, once you have a range that's livable
and that could be made up at least in the 10 years range you could get that from two ag assaults,
base on current law Brown would be able to withdraw plea, and Brown all along maintained his
innocent.
Brown attempted to withdraw his guilty plea at sentencing but counsel coerced him to
take the deal that did not existed.
Brown's conviction was sustained in violation of his due process rights and contrary to
clearly established Federal law as the judge accepted his guilty plea without him being informed
of the mandatory cannotes (address herein) for a valid plea, the Commonwealth's breach of
agreement and trial counsel's ineffectiveness for providing incorrect advice.
*7-
REASON FOR GRANTING THE WRIT
I THE THIRD CIRCUIT’S MISAPPLICATION OF STRICKLAND AND SLACK WAS A
DECISION THAT CONFLICTS WITH IT’S AND OTHER CIRCUITS AND
CONTRARY TO THIS COURT DECISION WARRANTS THIS COURT’S ATTENTION
The Third Circuit’s order denying Petition for rehearing asserting that a majority of the judges of
the Circuit in regular service not having voted for rehearing was clearly erroneous and an abuse
of discretion as it misapplied the Strickland v Washington 466 U.S. 668, 687-88( 1984)
test for ineffective assistance of counsel, Petitioner not meeting his burden regarding his
ineffective assistance of counsel claims per Slack v McDaniel 529, U.S. 473,484 (2000) and 28
U.S.C § 2254 (d)(1) & (2).
This Court requires, in making the unprofessional performance and prejudice under
Strickland, that the reviewing Court consider all of the evidence in the record, both that which
was admitted at the trial and that which is developed at the post-Conviction stage. Strickland v
Washington 466 U.S. 668, 687-88 (1984); Wiggins v Smith 539 U.S. 510 (2003); Williams v
Taylor, 529 U.S. 362 (2000). Under this test, it is inappropriate to consider the evidence in the
light most favorable to the verdict. It is clear that the Court of Appeals disregarded this principle
as detailed below.
Brown asserted in his § 2254 Petition as ground for relief that: Counsel was
constitutionally ineffective for (1) Failing to adequately explain the consequences of accepting
the government’s plea and pleading guilty, (2) failing to move for suppression of certain
statements or admissions made by Brown during custodial interrogation, (3) failing to object and
permitting Brown to plead guilty in a group colloquy, and (4) failing to object to the sentence
imposed by the trial Court. Brown’s § 2254 Petition asserted that he would not have pleaded
guilty had he been correctly advised of the Commonwealth’s plea offer, the viable charges
%
against him, the statutory maximum penalty provided by law for each crime charged, the true
nature of the charge, the elements of the offense for the crimes charged, the mandatory
deportation collateral consequences if convicted on the crime charged, but would instead
exercised his constitutional rights to a trial by jury. See. Teague v Scott}60 F.3d 1167, 1171-72 (
5th Cir 1995) (failing to properly advise defendant of the maximum sentence that he could
received falls below the objective standard required by Strickland. When the defendant lacks a
full understanding of the risks of going to trial, he is unable to make an intelligent choice of
whether to accept a plea or take his chance in Court).
Claims of ineffective assistance of counsel is governed by the two prong test set forth in
Strickland v Washington 466 U.S. 668, 104 S.Ct. 2052, 2064, 80L.Ed. 2d 674 (1984). In the plea
bargaining context, a Petitioner must demonstrate that (1) counsel’s advice and performance fell
below an objective standard of reasonableness, and (2) the Petitioner would not have pleaded
guilty and would have insisted on going to trial in the absence of his attorney’s error. Hill v
Lockart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.ED 2d 203 (1985); In this case, the
record reflect that trial counsel induced Brown’s guilty plea with specific maximum sentence of
ten (10) years for two aggravated assault charges. Relying substantially on the State Court
factual finding and Slack v Daniel, the District Court denied relief without an evidentiary
hearing, ruling that Petitioner has failed to demonstrate a substantial showing of the denial of a
Constitutional right which was erroneous as Brown had made a substantial showing of counsel’s
unprofessional actions and inactions, the prejudices he suffered there from back up by on the
record undisputed factual evidence which if proven warrant relief. See. Jordan v Hepp 831 F.3d
837, 849-50 (7th Cir. 2016) (A District Court must conduct a hearing under section 2254 (a) to
1
determine if these facts are true); Fooks v Superintendent, 96 F.4th 595 ( 3d Cir. 2023); 28
U.S.C.§ 2254 (d)(1).
The Third Circuit rehearing penal denial was plain error and an abuse of discretion
warrant this Court’s reversal as Brown had made a substantial showing by a preponderance of
undisputed evidence that his guilty plea was entered unknowingly, unintelligently and
involuntarily based on counsel’s bad advice, misrepresentation, coercion and inducement,
coupled with trial Court’s active role in plea negotiations along with it’s failure to inform Brown
with the mandatory plea provisions required for a valid guilty plea and the Commonwealth’s
induced guilty plea offer and recommendation in violation of Brown’s United States Fifth, Sixth
and Fourteenth Amendment Constitutional due process rights a decision conflict with other
Circuits and contrary to Federal law. See 28 U.S.C. § 2254 (d)(l)§ (2) .
Trial counsel testified under oath at PCRA hearing 4/4/16 that (1) he had plea discussion with
the DA and Judge prior to Brown entry of guilty plea and that the DA wanted 10 yrs. max and
judge wanted 10-15 yrs. max sentence for Brown’s plea for 2 aggravated assault charges. See.
PCRA N.T. 4/4/16 pg. 9 at 24-25, pg. 8 at 11-22, pg.23 at 10-11, pg.50 at 6-9, Letter to judge
12/16/15, Letter from Judge 1/4/16, Letter to Saurman 11/2/15 & 7/10/15.
(2) he did not know when sentencing was. See PCRA N.T. 4/4/16 pg 14 at 16-17.
(3) the sentence imposed was illegal thus a valid issue on appeal but abandon Brown stating “it
wouldn’t matter.” It would have been a waste of time.” PCRA N.T. 4/4/16 pg. at 2-11.
(4) “ we talked on several occasions about when the charge was changed.”
PCRA N.T. 4/4/16 pg. 14 at 16-17. However the Commonwealth produced a Plea Offer Memo
dated 11/21/14 which contained one attempted homicide & one aggravated assault charge and
explicitly stated that it was not moving off its initial offer but was willing to have plea
10
discussions, and explicitly ask trial counsel “did you, in fact relate to Mr. Brown that the
Commonwealth was in the range of 10-15 on the low end and 20-30 on the high end” and
counsel answered “I wouldn’t have put it exactly that way, but I said that we had an
understanding of the range of sentence 10-15” PCRA, N.T. 4/4/16 pg at 18-25 & 23 at 1.
Once you have a range that’s livable and a range that could be made up, at least at the 10
year range, you could get that of two assaults, ..Even if you win the main case you could
still get 10 years, so why don’t we go ahead.” PCRA N.T. 4/4/16 pg. 23 at 6-11. See Plea
offer Memo.
(5) The Commonwealth further ask trial counsel did Mr. Brown express to you that he wished to
withdrew him his guilty plea? And trial counsel answered “my recollection is that on the
morning of actual sentencing he made a reference that maybe he should withdraw his
guilty plea. And I said, look there’s a deal in place. There’s a sentencing range in place,
You’re better off taking this then not.” PCRA N.T. 4/4/16. pg. 24 at 5-14.
The Commonwealth continues to ask counsel... “do you believe Mr. Brown would have been
able to make more than a bare assertion of innocence in order to meet the standard of
Carrasquillo to withdraw his plea that morning?” And trial counsel answer “ Do I think he
could have? Yeah, if that were the issue. Mr. Brown had from the beginning ... laid out what I
thought was a defensible position,... which was that he had been hit on his head, that he was
disoriented, that he was being assaulted himself, and that he struck bacK in self defense in
disorientation. And I think that was a sufficient basis to overturn the plea.? PCRA N.T. 4/4/16
pg.25 at 8-21.
W
(6) He received Brown’s letter dated July 10th 1 and was ask “So this letter is dated July 10th.
Do you have any reason to doubt that, that letter was in fact, sent to you at around that
time and received by your office? And he answered “I have no reason to doubt that, no
PCRA N.T. 4/4/16 pg. 12 at 14-18. That’s question one, “Why was the charge changed from
assault to attempted homicide?” And was ask “And the second question he asked is, he
writes, Count I and IV, does that mean that the judge will be sentencing to five counts of
felony of the first degree? Answered “Right” Question “So it appears as though he added
one and four and came up with five counts? Answer “I would believe so, yes. PCRA N.T.
4/4/16 pg. 13 at 2-11. The record clearly showed that:___
(1) Brown was denied of his constitutional right to be present “at a critical stage” of his criminal
proceeding when trial Court ordered him on 3/27/15 to be present in Court for plea discussions
on 4/22/15, and Brown who sign no waiver was prevented from appearing in Court by counsel
failing to file habeas corpus to have him present per Court order and trial Court who received no
waiver held plea discussions in Brown’s absence in violation of Brown’s U.S. Const. Amend. V,
VI and XIV due process rights.
The Due process Clause of the Fifth and Fourteenth Amendments guarantee a criminal
defendant the right “to be present in his own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the charge, Stincer,
482 U.S. at 745, 107 S.Ct. 2658. The defendant’s right to be present extends to “any stage of his
criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to
the fairness of the procedure.” Stincer 482 U.S. at 754, 107 S.Ct. 2658.
1 Brown wrote counsel on July 10ltl which was after guilty plea April 29 and before sentence July 28 , expressing
confusion over what he plead to and asking (1) why was the charge change from two aggravated assault to one
assault and one attempt homicide and (2) Count 1 and count IV, does that mean that the judge will be sentencing to
five counts of felony of the first degree?
\z
Had Brown constitutional rights not been violated he would have being aware of the true
Commonwealth’s plea offer and have the opportunity to defend himself absent of which had to
rely on counsel’s bad advice.
As such the state Courts denial which the U.S. District Court adopted and the Third
Circuit denial was a decision contrary to Kentucky v Stincer, 482 U.S. 730, 745,754 107 S.Ct.
2658, 96 L.Ed. 2d 631 (1987); United States v Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84
L.Ed. 2d 486 ( 1985); and conflict with Campbell v Rice, 302 F.3d 892, 898 ( 9th Cir. 2002);
People v Ochoq, 26 Cal. 4th 398, 433, 110 Cal. Rptr. 2d 324, 28 P.3d 78 ( 2011).
(2) Trial Court took an active role in plea negotiations in violation of Brown’s Fifth and
Fourteenth Amendment Due Process Rights to a free and fair proceedings as trial counsel
testified at PCRA hearing that he had plea discussion with the D.A. and Judge, and that the D.A.
wanted 10 year max sentence and the judge wanted 10-15 year max sentence for Brown’s guilty
plea. PCRA N.T. 4/4/16 pg.8 at 11-25 & pg. 9 at 23-25.
When the judge wanted 10-15 years sentence prior to Brown’s plea, taking any such
participation in the plea bargaining process and in Brown’s absence, jeopardized the plea. The
Pennsylvania Supreme Court resolved to exclude the trial judge from participation in plea
bargaining process. The Evans Court held that” a plea entered on the basis of a sentencing
agreement in which the judge participates cannot be considered voluntary, “ and we forbade “any
participation by the trial judge in the plea bargaining prior to the offering of a guilty plea.”
Commonwealth v Evans 434 Pa. 52, 252 A.2d 689, 690 (1969) See also Commonwealth v
Johnson 2005 PA Super 159, 875 A.2d 328 (Pa. Super. 2005); United States v Bruce, 976 F.2d
552 (9th Cir. 1992) (“Judge’s improper participation in plea negotiations violated
Fed.R. Crim.P. 11 (C) (1) and raised questions of impartiality and coerciveness”); American Bar
o
Association Project on Minimum Standards for Criminal Justice, Standards Relating to plea of
guilty § 3.3 (a) at 74 (Approved Draft, 1968) (“The trial judge should not participate in plea
discussions.”)
Indeed Federal law prohibits trial judge from participating in plea negotiations. See Fed. R. Crim
P. 11(C) (1) which is identical to its Pennsylvania state counter part Pa. R. Crim. P.590 (B) (1);
' As such Brown’s conviction was in violation of his due process rights and plea was involuntarily
and the denial of relief by the State Courts, U.S. District Court and Third Circuit was a decision
conflict with American Bar Association Project on Minimum Standards for Criminal Justice,
standards relating to plea of guilty § 3.3 (a) at 74 ( Approved Draft, 1968); United States v Miles,
10 F.3d 1135, 1140 (5th Cir 1993); United States v Bruce, 976 F.2d 552 ( 9th Cir. 1999) ; United
States v Pena 720 F.3d 561, 570 (5th Cir. 2013); United States v Adams 634 F.2d 830, 839 (5th
Cir. 1981); United States v Harrell 751 F.3d 1235, 1237, 1239 (11th Cir. 2014).
(3) Brown was convicted on a silent record in violation of his Fifth, Sixth and Fourteenth
Amendment due process rights to a free, fair and impartial proceeding and Rule 590 (a)J(B)(l) as
at no time during oral plea colloquy was Brown informed in understanding terms the critical
elements, of the offenses for the crimes to which he pled guilty to, nor was the indictment read
into the record, nor did counsels for the Commonwealth and defense state on the record, in open
Court in Brown’s presence the terms and conditions of the plea or that Brown had a
constitutional right to confront his accusers, prior to trial Court accepting Brown’s guilty plea.
The legislator intend that trial Court informed the defendant of these mandatory cannotes in open
Court prior to accepting the plea of guilty, which is to ensure that the defendant in this case
Brown knows what he is actually pleading to and the consequences there from, and entering his
guilty plea knowingly and intelligently.
IH-
This Court ruled in Henderson that “Defendant who was not informed of critical elements of the
offense, to which he pled guilty, entered his plea involuntary.” Henderson v Morgan 426 U.S.
637, 49 L.Ed. 2d 108, 96 S. Ct. 2253 (1976); Thus, “a plea is invalid if a defendant enters it
without being informed of the elements of the crime at some point.” Bradshaw v Stumpf, 545
U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed 2d 143 (2005).
In Boykin, this Court has held that it is error “to accept Petitioner’s guilty plea without an
affirmative showing that it was intelligent and voluntarily. Presuming waiver from a silent record
is impermissible.” Boykin v Alabama 395 U.S. 238, 242-44, 89 S.Ct.1709, 1712, 23 L.Ed.2d 274
(1969K
The Ingram Court reasoned, we have often enunciated the principle that an adequate on the
record colloquy under Rule 319), now Rule 590, must include a demonstration “that the
defendant understands the nature of the charges.” Commonwealth v Campbell, 451,Pa. 465, 304
A.2d 121, 122 (1973)\ In order to demonstrate that a defendant possesses such understanding, he
certainly must be told more than just that he has been charged with murder or robbery, for
example. While such terms clearly cannote some meaning to the layman, this meaning does not
always embrace the basic legal elements of the crime. If this were not the case, there would be no
need for instructions to a jury on such points, for certainly, an average defendant cannot be
presumed to understand more than an average juror. Thus, for an examination to demonstrate a
defendant’s understanding of the charge, the record must disclose that the elements of the crime
or crimes charged were outlined in understanding terms. Commonwealth v Ingram 455 Pa. 198,
316 A.2d 77, 80 (1974).,
This Court has held “the due process clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
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which he is charged, “ In re Winship, 397 U.S. 358, 364 ( 1970), and “requires the prosecution to
prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when
the issue is properly presented in a homicide case, “Mullaney v Wilber, 421 U.S. 684, 704 (
1975).
The record clearly show that Brown was never informed of the elements of the offense for the
crimes charge, the permissive range of sentence for each charge, that he had a right to confront
his accusers, the true nature of the charge and the Commonwealth key witness statement to
police that the incident arose out of heat of passion. As such Brown’s plea was entered
involuntary and unknowingly and the denial of relief by the State Courts which the U.S. District
Court adopted and Third Circuit denials was a decision contrary to Boykin v Alabama 395 U.S.
238, 242-44 (1969); Bradshaw v Stumpf, 545 U.S. 175, 183 (2005); Henderson v Morgan, 426
U.S. 637 ( 1976); Bradley v United States, 397 U.S. 742, 748-49, 90 S.ct 1463, 25 L.Ed. 2d 749 (
1970); “ In re Winship 397 U.S. 358, 364 ( 1970), Mullaney v Wilber, 421 U.S. 684, 704 (
1975). Pointer v Texas, 380 U.S. 400, 404 (1965); McCarthy v United States, 394 U.S. 459, 466 (
1969) and conflict with Cole v Young 817 F.2d 412,423 ( 7th Cir. 1987); United States v
Schweitzer 454 F.3d 197, 202-03 ( 3rd Cir. 2006); Johnson v Plappert 2024 U.S. App. Lexis
12335 ( 6th Cir. 2024) ( Where the Court granted COA based on trial Court denied due process
by accepting a guilty plea that was not entered knowingly, voluntarily & intelligently). See.
Police Incident Report Form pg.15, 1st paragraph & Guitly plea N.T. 4/29/15,
Murder of the first degree is an intentional killing, which is defined in part, as a willful,
deliberate, and premeditated killing, 18 Pa.C.S. § 2502 (a) (d). However, if at the time of the
killing the defendant is acting under a sudden and intense passion resulting from serious
provocation; the defendant is guilty of voluntary Manslaughter. 18 Pa. C.S.§ 2503 (a). In both
\f>
crimes, the actor commits the act with intent to kill. However, the difference between first degree
murder and voluntary Manslaughter is whether the actor committed the killing under a sudden
and intense passion resulting from serious provocation. The Supreme Court of Pennsylvania has
defined “passion” as anger, rage, sudden resentment or terror rendering the mind incapable of
cool reflection. Commonwealth v Laich 566 Pa. 19, 777 A.2d 1057 (Pa. 2001);
While trial Court did State that the Commonwealth had to prove beyond a reasonable doubt
every element of the offense for each crime charge in order to convict Brown, it clearly failed to
provide Brown with any of those elements of the offenses for the crime'charged thus relieved the
State of its burden “to prove every element of an offense beyond a reasonable doubt. As Such the
State Courts denial of relief which the U.S. District Court adapted and Third Circuit denials was
a decision contrary to Sandstrom v Montana 442, U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed. 2d 39
(1979),
Also the record is silent of Brown receiving real notice of the true nature of the charge against
him, the permissive range of sentence for each of the crime charged, nor any alternative course
of action open to him, nor was he informed of what constitute First degree Murder defined 18 Pa.
C.S.§ 2502 (a), Serious Bodily Injuries defined 18 Pa. C.S. § 2301, Criminal attemptl8 Pa.
C.S.§ 901(a) and voiding of a Criminal Attempt under 18 Pa. C.S.§ 901 (c) in light of the State’s
key witness statement to police that the incident arose out of heat of passion and that Brown
abandoned his conduct, and the affidavit of probable cause made no reference of Brown
attempting to kill anyone. As such Brown’s plea was entered involuntarily, unknowing &
unintelligently and the denial of relief by the State Court which the U.S. District Court adopted
and Third Circuit denials was a decision contrary to North Carolina v Alford, 400 U.S. 25, 91
S.Ct. 160 (1970); Bousleyv United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604,1 40L.Ed.2d
\T
823 (1998); Smith vO’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed 2d859 (1941);
McCarthy v United States, 394 U.S. 459, 464 ( 1969); Henderson supra. Brady supra, and
conflict with Charlton v Davis, 439 F.3d 369;372 (7th Cir. 2005); See Police Incident report
formpg.15, 1st paragraph.
(4) The Commonwealth did not charge Brown with Murder defined 18 Pa.C.S.§ 2502 (a) nor
Seriously Bodily Injuries ( SBI) defined 18 Pa. C.S.§ 2301 in the Police Criminal Complaint or
Information thus violating Apprendi, Ex parte, Bain, Rabe, and Brown’s U.S. Const.
Amend.V.& XIV due process rights to free and fair proceeding as the trial Court sentence Brown
to attempt homicide 15-40 years when the Commonwealth only charge Brown with Criminal
attempt defined 18 Pa. C.S. 901 (a) which sentence imposed reflect a constructive amendment of
information by the trial Court, a prohibited act by Federal law. While the legislator enacted Rule
564 as the sole mechanism of amending the information anytime prior to imposition of sentence
pursuant to Motion for Amendment of Information Pa.R. Crim. P. 564, the Commonwealth
plainly refused to do so and Brown is innocent of the charge of Attempt Homicide.
We must take the indictment as thus construed conviction upon a charge not made would
be sheer denial of due process.” Dejonge, 299 U.S. at 362. “A Fundamental miscarriage of
justice may be found if the Petitioner presents evidence of actual innocence of the underlying
criminal charge.” Schlup, 513 U.S. at 327.
In United States v O’Hagan, 139 F.3d 641 (8th Cir. 1998) the Court ruled “If an essential
element of the charge has been omitted from the indictment, the omission is not cured by the
bare citation of the charging statute. If an essential element is omitted from the indictment, then
the defendant’s Fifth Amendment right to be tried on charges found by a grand jury has been
\s
violated.” And in United States v Faweitt 155 F.2d 764, 767 (3rd Cir. 1940) the court noted that,
at common law, an indictment could not be amended whatsoever, except by the grand jury that
return it. See Id. at 766. The reasoning behind this principle was that “the finding of a grand jury
was upon an oath and, depending upon this fact amongst other for its validity, could not be
amended by the Court.”
This Court ruled in Rebe v Washington 405 U.S.313, 31 L.Ed.2d 258, 92 S.Ct 993 (1972) that
“No principle of procedural due process is more clearly establish than that notice of the specific
charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are
among the constitutional rights of every accused in a criminal proceeding in all Courts, State or
Federal. And in Apprendi vNew Jersey 530 U.S. 466, 120 S.Ct. 2348 (2013) (any fact that
increases the minimum statutory penalties must be charged in the indictment and proved beyond
a reasonable doubt).
The Fifth Amendment of the United States Constitution state in part, “No person shall be held to
answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury..” U.S. Const. Amend. V. The Fifth Amendment thus ensures that a person’s jeopardy
is limited” to offenses charged by a group of his fellow citizens acting independently of either
prosecuting attorney or judge.” Stirone v United States, 361 U.S. 212, 217-218, 80 S.Ct 270
(1960). These principles are preserved in more than a Century of decisional law. See Ex Parte
Bain, 121 U.S. 1, 9-10, 7 S.Ct. 781, 30 L. Ed. 849 (1887).
In Commonwealth v King 660 Pa. 482, 234 A.3d 549 (2020) the Court held that, “although the
criminal information put defendant on notice for a prosecution for a crime of attempt murder, the
Commonwealth violated Apprendi principles because he was not given formal notice of the
Commonwealth’s intent to prosecute him for aggravated crime of attempted murder causing
n
serious bodily injury. 18 Pa.C.S.§ 1102 (c). Also in Commonwealth v Johnson 2006Pa.
Super. 265, 910 A. 2d 60 (Pa. Super 2006) Johnson was convicted of attempted murder generally
and received a sentence of seventeen and one half to forty years of incarceration under 1102 (c).
Johnson, 910A.2d at 63. The Supreme Court vacated Johnson’s sentence based on the United
States Supreme Court’s decision in Apprendi v New Jersey 530 U.S. 466, 467-68 (2000).
The Fuller Court ruled that it is analytically consistent with the purposes of criminal
jurisprudence to punish a criminal who completes an aggravated assault and cause serious bodily
injury more severely than a criminal who merely takes a “substantial step” towards completion
of a murder. See Solem v Helm 463 U.S. 277, 293, 103 S.Ct. 3001, 3011, FFL Ed. 2d 637, 651
(1983) (“It is generally recognized that attempts are less serious than completed crimes.”) Mode
1 Penal Code § 5.05. Commonwealth v Fuller, 396 Pa. Super 605, 615-616, 579 A.2d 879, 88485 (1990).
As the record clearly showed that Brown was never charge with murder, nor serious
bodily injury and the trial Court made a constructive amendment to the information resulting in
an unlawful sentence which should be vacated and the denial of relief from the State Courts,
which the U.S. District Court adopted and the Third Circuit denial was a decision contrary to
Rabe v Washington 405 U.S. 313 (1992); Stirone v United States 361 U.S. 212 (1960); Ex
Parte Bain, 121 U.S.t( 1987); Apprendi v New Jersey 530 U.S. 466 (2000). Alleyne v United
States, 133 S.Ct. 2151, 2163, 186L.Ed2d314 (2013); Cole v Arkansas 333 U.S. 196, 201, 68
S.Ct. 514, 92 L.Ed 644 (1948); Schulp v Delo, 513 U.S. 298*327, 115 S.Ct. 851, 130 L. Ed 2d
808 (1995); SolenvHelm, 463 U.S. 277, 293 (1983); Dejonge v Oregon, 299 U.S. 353, 362, 57
S.Ct. 255, 81 L.Ed 2d 278 (1937); United States v Miller, 471 U.S. 130, 140, 105 S. Ct. 1811,
2.0
1817, 85 L.Ed 2d 99 (1985); Jones v United States, 526 US. 227, 119S.Q. 1215, 143 L.Ed. fld;
311
(1999); and conflict with United States v O’Hagan, 139 F. 3d 641 (8th Cir. 1998); Werts v
Vaughn 228 F.3d 178, 193 (3rd Cir. (2000); United States v DarioM5 F.3d 253, 259-60 ( 3rd
Cir. 2006); United States v Harra, 985 F.3d 196, 221-22 (3rd Cir. 2021); United States v
Faweitt, 115 F.2d 764, 767 (3rd Cir. 1940).
(5) Trial Court committed structural error when it imposed a sentence for Count 1 Attempt
Homicide 15 years ( 180 months)-40 yrs. representing a prior record score ( PRS) of 4,
guidelines range 168-240 months and Count 4 Aggravated Assault 5 yrs ( 60 months)-10 yrs
representing PRS of 1, guideline range 42-60 months were in the aggravated range, an upward
departure from the guidelines without stating no reason on the record, resulting in more jail time
and created a structural defect in the proceeding in violation of 42 Pa. C.S.§ 9721 (b), Rule 590
(a) (3) and Brown’s Fifth and Fourteenth Amendment Due process rights to a fair and impartial
proceeding as Brown’s PRS is O with a guideline range of 72-240 months for Count 1 and 35-54
months for Count 4, for which the trial Court accepted and convicted Brown on 4/29/15 there
after on 7/28/15 sentence Brown upwards from the guidelines it prior accepted, thus voiding
Brown’s conviction. See Pa. Sentencing Martix 2014, Guilty Plea N.T. 4/29/15 and sentencing
N.T. 7/28/15.
The Brown and Valazques Courts reasoned that “A Sphinx-like silence on the Court’s
part precludes anyone including the parties, the judge, and the appellate tribunal) from learning
whether he acted in error.)” Brown, 479 F.2d at 1173. “Requiring such procedure would
encourage the judge to clarify and justify, in his own mind, the grounds for the sentence he
2\
chooses. As a result, sentencing decisions would tend, on the whole, to be more carefully thought
out.” Velazquez, 482, F.2d at 142.
A State Court’s fact-finding may qualify as unreasonable where “the State court., had before it,
and apparently ignored” evidence supporting the habeas Petitioner’s claim. Miller-El v Cockrell,
537 U.S. 322, 346 ( 2003). Here, the State Court totally ignored and/or disregarded the
significance of utilizing the proper prior score-a score which would have reduced the sentencing
guideline applicable to Brown. See Commonwealth vDotzman, 588 A.2d 1312, 1317 (Pa. Super.
1991) (“The Court’s discretion comes into play.. .only after it has determined the proper
sentencing guideline range). While the guidelines are advisory and nonbinding, a sentencing
Court must ascertain the correct guideline ranges before a departure is in order, Commonwealth v
Archer, 722 A.2d 203, 210 (Pa. Super. 1998).
See. United States v Booker, 543 U.S. 220, 264 ( 2005) (while a Court may depart from the
guidelines, beforehand, it “must consult them and take them into account when sentencing”) as
such provides “certainly and fairness in sentencing”); Rosales-Mireless v United States?138 S.Ct
1897 (2018) ( holding that, the defendant who pleaded guilty to illegal reentry, and who was
erroneously sentenced to a pre-sentences report which mistakenly counted a State misdemeanor
conviction twice, resulting in a guideline range of 77 to 96 months when the correct calculated
range was 70-87 months was entitled to resentencing).
It is undisputed that the state Court did not ascertain the correct guidelines ranges before
it sentence Brown in the aggravated range an upward departure from the guidelines without
stating no reason on the record in violation of Brown’s due process rights, and as such the
sentence imposed was clearly unlawful and the denial of relief by the State Courts which the
U.S. District Court adopted and the third Circuit denial was a decision contrary to Miller-El v
ZX
Cockrel, 537 U.S. 322, 346 ( 2003): United State v Booker, 543 U.S. 220, 264 (2005); RosalesMireles v United States, 138 S.Ct. 1897 (2018); Glover v United States, 531 U.S. 198, 203 (
2001) (“any amount of actual jail time has sixth Amendment significane”); Dorszynski v United
States, 418 U.S. 424, 455-57 (1974) and conflict with Richardson v Superintendent Coal Twp.
SCI905 F.3d 750 ( 3rd Cir. 2018); Moore v United States, 571 F.2d 179, 183 ( 3rdCir. 1978);
United States v Bazzano, 570 F.2d 1120, 1137-38 (3rd Cir. 1977) (requiring District Courts to
state a reasons for criminal sentence); United States v Valazques, 482 F.2d 139,142 (2nd Cir.
1973)\ American Bar Association project on Minimum Standards for Criminal Justice, Standard
relating to Appellate Review of Sentence§ 2.3 (c) and commentary (e) at 45-47 (App. Draft
1968); Berkowitz, The Constitution Requirement for a written statement of reasons and facts in
support of the sentencing decision: A due process Proposal, 60 Iowa L. Rev. 205, 208-212
(1974); United States v Brown, 479 F.2d 1170, 1173 ( 2nd Cir. 1973); United States v MunozFontanez, 61 F.4th 212,214 (1st Cir. 2023) ( Vacating a 20% upward variance there); United
States v Sepling, 944 F.3d 138, 145 (3rd Cir. 2019).
(6) The Commonwealth breach the plea agreement in violation of Brown’s Fifth & Fourteenth
Amendment due process rights, Santobello v New York and cause Brown to enter an involuntary
plea warrant reversal. As evidence, the Commonwealth at sentencing stated on the record
“.. .the Commonwealth will be looking for a 10-15 on the low end, 20-30 on the high end for
Mr. Brown’s conviction for these two offenses.’ And “I still would be requesting your
Honor, a minimum sentence of at least 10-15 on the low end, 20-30 on the high end....the
discussion from the time we met in chamber.” Sentencing N.T. 7/28/15 pg.2 at 16-19 and pg.
4 at 4-8
2.3
At PCRA hearing the Commonwealth ask defense counsel “did you in fact relate to Mr.
Brown that the Commonwealth was in the range of 10-15 on the low end and 20-30 on the
high end” PCRA N.T. 4/4/16 pg. 22 at 18-25.
Trial Court sentence Brown to 15-40 years for attempt homicide and 5-10 years for aggravated
assault and both the prosecutor, and defense counsel remain silent.
The Alvardo Court ruled “we have at the same time viewed as invalid pleas entered on the
strength of the prosecutor’s unkept bargain.” Commonwealth v Alvardo, 442, Pa. 516, 276 A.2d
526 (1971). Indeed, the Federal constitution mandates that we do so. Santobello v New York 404
U.S. 257, 262 (1978).
In Santobello v New York 404 U.S. 257, 262, (1978) this Court ruled that “when a plea
rest in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration such promise must be fulfilled,” A plea
agreement that is ambiguous must be read against the government. United States v Jefferies 908
F.2d 1520 (11 Cir. 1990). The Supreme Court stated in a case dealing with oral plea promises
which were subsequently breach, “A guilty plea, if induced by promises”... “which deprive it
of the character of a voluntary act is void.” Machibroda v United States, 368 U.S. 487, 493
(1962).
In Brown’s case 10-15 on the low end and 20-30 on the high end in of itself was ambiguous as
the numbers could represent month or year. Assuming its years, Brown received a 40 year
sentence, 10 years more than the Commonwealth’s 30 year induced offer and recommendation.
As such the denial of relief by the State Courts which the U.S. District Court adopted and the
denials of the Third Circuit was a decision contrary to Santobello v New York, 404 U.S. 257, 262
(1978); Machibroda v United States, 368 U.S. 487,493 (1962); and conflict with United States v
Velez Carrero, 77 F.3d 11 (1st Cir. 1996); United States v Jefferies, 908 F.2d 1520 (11 Cir.
1990); United States v Taylor, 139 F. 3d 924 (D.C. Cir. 1998); United States v Loughery, 905
F.2d 1014, 1018 (D.C.Cir. 1990),
(7) The record is also silent of defense counsel explaining to Brown that the charges if convicted
carries a mandatory deportation collateral consequence. PCRA N.T. 12/18/18 pg. 8 at 1-9.
The United States Supreme Court has held that counsel must inform a non citizen defendant as to
whether a plea carries a risk of deportation. Padilla v Kentucky, 559 U.S. 356^372 (2010). Padilla
Court also observed that some potential deportation situations are unclear and uncertain while
other deportation situation are truly clear, Id. 1483. The Court commented that, when the
relevant deportation law is succinct and straight-forward, counsel need to do more than advise
the client that the charge/conviction may carry a risk of deportation. However, when the
deportation consequence is truly clear, “the duty to give correct advice is equally clear,” Id.
(emphasis added.).
'As defense counsel failed to explain or even advise Brown that the charges/conviction carries a
mandatory deportation collateral consequence, Brown entered his plea involuntarily,
unknowingly and unintelligently in violation of his U.S. Sixth Amendment right and the denial
of relief by the State Courts which the U.S. District Court adopted and Third Circuit denials was
a decision contrary to Padilla v Kentucky, 559 U.S. 356 (2010); Lee v United States, 582 U.S.
357(2017).
(8) Trial counsel admitted guilt over Brown’s express objection and failed to be Brown’s
advocate and denied Brown counsel at a critical stage. As evidence was counsel’s testimony
under oath that Brown had from the beginning claim he was innocent, was attack and struck back
zs
in self-defense, and that Brown has his own recollection of events. See PCRA N.T. 4/4/16 pg. 25
at 8-21 & sentencing N.T. 7/28/15 pg 4 at 23-24.
At oral guilty plea counsel recited on the record to the Court (fact finder) the alleged” facts and
version of event of the State” instead of rejecting the plea offer and prepare for trial base on
Brown’s innocence and self defense claims. See Guilty Plea N.T. 4/29/15 pg. 9 at 12-19 .
Counsel also testified that on the morning of sentencing Brown told him that he will be
withdrawing his guilty plea and instead of being Brown’s advocate and proceed on an oral on the
record motion to with Brown’s guilty plea, counsel coerce Brown into taking counsel’s own
mis- advice made up plea offer and not the plea offer the State. See. PCRA N.T. 4/4/16 pg 24
at 5-14.
It is clear from the record address herein that Brown communicated and maintains his innocence
to counsel and a concession of guilt should have been off the table and that the plea was not the
choice or free will of Brown and that counsel's admission of Brown’s guilt over Brown’s express
objection is error structural in kind. See Cooke, 977 A.2d at 849 (counsel’s override negated
Cooke’s decision regarding his constitutional rights, and created a structural defect in the
proceeding as a whole”). Such an admission block the defendant’s right to make the fundamental
choices about his own defense. And the effects of the admission would be immeasurable,
because a jury (or a judge) would almost certainly be swayed by a lawyer’s concession of his
client’s guilt. Brown is entitled to McCoy and must therefore accorded a new trial without any
need to show prejudice.
This Court granted Certiorari in McCoy v Louisiana 584 U.S. 414 (2018) in view of a decision of
opinion among State Courts of last resort on the question whether, it is unconstitutional to allow
Z4>
defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.
582 U.S. 967 (2012).Compare with the instant case, e.g. Cooke v State,977 A.2d 803, 842-846
(Del. 2009) (Counsel’s pursuant of a” guilty but mentally ill” verdict over defendant’s
“vociferous and repeated protestations” of innocence violated defendant’s “ constitutional right
to make fundamental decisions regarding his case)) State v Carter, 270 Kan. 426,440 14 P.3d
1138, 1148 ( 2000) ( counsel’s admission of client’s involvement in murder when client
adamantly maintain his innocence contravened Sixth Amendment right to counsel and due
process right to a fair trial.)
This Court ruled in Anders v California, 386 U.S. 738,743 (1967) (“that the adversarial process
protected by the Sixth Amendment requires that that the accused have “counsel acting in the role
of an advocate.”), and in United States v Cronic, 466 U.S. 648 (1984) which held that automatic
reversal is required where a defendant is denied counsel “at a critical stage. ” Lee v United States,
582 U.S. 357, 371(2017) ( requiring that a defendant might reject a plea and prefer” taking a
chance at trial.” Despite “almost certain” conviction. U.S. Const. Amend.VI; See. ABA Model
Rule of Professional Conduct 1.2 (a) (2016) (“a layer shall abide by a client’s decision
concerning the objectives of representation”); Hashimoto, Resurrecting Autonomy. The
Criminal Defendant Right to control the case. 90 B.U.L Rev. 1147, 1178 (2010) ( for some
defendants, the possibility of an acquittal, even if remote, may be more valuable then the
difference between a life and death sentence.”)
As counsel admitted guilt over Brown’s express objection, failed to be Brown’s advocate and
denying counsel at a critical stage ( plea & sentencing) in violation of Brown’s U.S. Fifth, Sixth
and Fourteen constitutional Amendment rights the state Courts denial of relief which the U.S.
District Court adopted and the Third Circuit denials was a decision contrary to McCoy v
2-lr
Louisiana, 584 U.S. 414 (2018)\ Lee v United States 582 U.S. 357,371 (2017); United States v
Cronic, 466 U.S. 648 (1984); Anders v California 386 U.S. 738, 743 (1967); Faretta v
California, 422 U.S. 806(1975) and conflict with State v Carter, 270 Kan. 426, 440 (2000);
Cooke v State, 977 A.2d 803, 842-846 (Del. 2009).
In order to be valid, a guilty plea must be both knowing and voluntary. Parke • v Raley, 506 U.S.
20 (1992). Because a guilty plea must be the voluntary expression of the defendant’s own
choice, See. Brady v United States, 397 U.S. 742, 748 (1970), the Supreme Court has long held
that “the agents of the State may not produce a plea by actual or threatened physical harm or by
mental coercion overbearing the will of the defendant.”Id. at 750; See also Machibroda v U.S.
368 U.S. 487,493 (1962) (“a guilty plea, if induced by promises or threats which deprive it of the
character of a voluntary act, is void” and “ open to collateral attack”). The voluntariness of a plea
“ can be determined only by considering all of the relevant circumstances surrounding it.” Brady,
397 U.S. at 749.
As relevant were, the Supreme Court has also held that “a transcript showing full compliance
with the customary inquiries and admonitions furnishes strong, although not necessarily
conclusive evidence that the accused entered his plea without coercion and with an appreciation
of its consequences.’ See Boykin v Alabama, 395 U.S. 238,242-44 (1969). And although such
“solemn declarations in open Court carry a strong presumption of verity” that create a
“formidable barrier in any subsequent collateral proceedings” See. Blackledge v Allison, 431
U.S. 63, 74 (1977), there is no per se rule that a defendant’s sworn statements are an “
insurmountable” obstacle to a coercion claim. See. id.
In Blackledge v Allison, 431 U.S. 63 (1977) a State defendant was required to complete a printed
form used by the trial Court in connection with guilty pleas. One of the question asked whether,
the defendant understood he could be imprisoned for a minimum of ten years to life, the
defendant wrote "yes" in response. The other relevant question was whether, the Solicitor, or
your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to
influence you to plea guilty." id. at 66. the defendant answered "No". After sentencing, the
defendant filed a Petition in Federal Court alleging that before he entered his plea, his attorney
had led him to believe that as result of an agreement with the Solicitor and the judge, the
sentence would be no more than ten years. The defendant also asserted that he had been
instructed to answer the questions on the court's form as he had done. The supreme Court held
that Allison's habeas corpus petition should not have been dismissed simply because of his
answers to the questions at the plea proceeding, the Court explained that "the barrier of the
plea or sentencing proceeding record, although imposing, is not invariable
insurmountable." Id. at 74. Consequently, "the Federal Courts cannot fairly adopt a per se
ruling excluding all possibility that defendant's representations at the time of his guilty plea was
accepted were so much the product of such factors as misunderstanding, duress, or
misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for
imprisonment." Id. at 75.
For decades, the Supreme Court has recognized that a lawyer can violate Strickland by
"failing to advise the defendant" properly or misadvising him and thus causing him to plea
guilty. Hill v Lockhart, 474 U.S. 52, 56-60 (1985)(involving misadvice about parole eligibility).
Strickland equally guards against letting a defendant decide to turn down a plea deal based on a
lawyer's incorrect advice. See Lafler v Cooper, 566 U.S. 156,163-64 (2012) . Either way,
"incompetent advice distorts the dfendant's decision making process" and "makes it "hard
to say that the plea was entered with the advice of constitutionally competent counsel."
Padilla v Kentucky, 559 U.S. 356, 385 (2010).
2-°l
Brown case is similar to Allison and Machibroda in that Brown was misled by counsel's
incorrect advice and promise in believing that he would be getting a 10 year maximum sentence
for two aggravated assault charges arising from plea discussion counsel had with DA and judge.
Brown signed written plea colloquy form and answered the plea Court as instructed by counsel
with the bona-fide belief that he would received a 10 year sentence, not the 40 year sentence he
received. A 10 year sentence is a 5-10 or a 2-4 with a consecutive 3-6 for example. Brown wrote
counsel prior to and after sentencing expressing confusion over what he plead to verses what was
promised and what's the status with the appeal but received no response. Brown wrote the judge
explaining his abandonment and what counsel promised him, which the judge forwarded the
letter to counsel who did nothing.
Brown has met the Strickland two prong test as trial counsel's performance was deficient
for (a) failure to object to the trial court's : accepting Brown's guilty plea without being informed
of the elements of the offense for the crimes charged, the permissive range of sentence for each
offense charged, the true nature of the charge, counsels stating on the record in open court in
Brown's presence the terms and conditions of the plea, that Brown had a constitutional right to
confront his accusers; accepting Brown's guilty plea for attempt homicide when the
Commonwealth only charge Brown with criminal attempt in the information which could have
been for murder, rape, robbery for example; accepting Brown's guilty plea for the applicable
guideline range but later reverse course sentencing outside the applicable guideline range without
stating no reason on the record; constructive amendment of information at sentencing; violating
several state and federal laws.
(b) advising and coercing Brown to plea to charge not found in the information; his own made up
10 year plea for two aggravated assault charges when the Commonwealth wanted 10-15 on the
low end and 20-30 on the highend for one attempt homicide and one aggravated assault charge;
30
admitting guilt at plea hearing over Brown's express objections; admitting the sentence was
illegal and his failure to file a direct appeal was without concent; failure to object to the
Commonwealth's breach of plea agreement; failure to advise Brown that the charges if convicted
carries a mandatory deportation collateral consequence; failure to file habeas corpus to have
Brown present at court ordered plea discussions; failure to be Brown's advocate by mounting a
defense on Brown's innocence and self defense claims and file motion to vacate guilty plea;
failue to be knowledgeable about the currant state of the law ie. what constitutes a valid plea,
indictment, viable charge and penal statute, and the legislator's intent there of.
Counsel's deficient performance prejudice Brown as there is a reasonable probability that
but for counsel'a deficient: failure to (c) consult with him about an appeal Brown would have
timely appeal; object to the trial court's constructive amendment of information violated Brown's
due process rights to a fair proceeding and prejudice Brown into serving an unlawful sentence
with more jail time; advice of the mandatory deportation collateral consequence of taking the
plea violated Brown's due process right as he is facing deportation without due process of law.
Brown would have taken his chances at triafibe'advocate by mounting an innocence defense as
pleading guilty should have been of the table and by filing motion to vacate plea, Brown would
have stated on the record in open court an oral on the record motion to vacate guilty plea; be
knowledgeable about currant state and federal laws misled Brown in entering an involuntary
plea, pleading to charge not found in the indictment, to a plea agreement that did not exists and
waive certain constitutional rights absent of which Brown would have exercise his right to trial
by jury, confront his accusers, file motion to dismiss attempt homicide charge and indictment and
no juror properly instructed would have found Brown guilty of attempt homicide.
(d) in admitting guilt over Brown's expressed objections at plea hearing to the Court (fact finder)
3*
would almost certainly be swayed by counsel's concession of Brown s guilt.
(e) coercing and repeated incorrect advice that led Brown into an involuntary guilty plea, had
Brown been properly advised of the laws in relation to the facts of the case absent of which
Brown would have insisted on going to trial and ask the Court for new competent counsel to folly
explain the facts, consequences and laws of the case.
Brown's undisputed factual assertions are obvious and apparent on the record and is
entitled to the benefit of this Court's holdings and opinion in Allison, Machibroda, Strickland,
Cronic, Ex parte Bain, Bousley, Booker, McCoy, Padilla, Lee, Henderson, Lafler, Hill, Boykin,
Santobello, Pointer, McCarthy, Anders, Solen, Rabe, Glover, Dejonge, Fontaine, Saunders,
Farette, Bradshaw, Williams, Brady'In Re Winship, Sandstorm, Smith, Stirone, Apprendi, Cole,
Schulp, Wiggins, all supra, Roe v Flores-Ortega, 528 U.S. 470,477-78,484 (2000); United
States v Timmereck, 441 U.S. 780, 763 (1975); Tollett v Henderson, 41 U.S. 258, 267 (1973) and
have his plea and sentence vacated, indictment dismissed as counsel was constitutionally
ineffective under the Sixth Amemdment and Strickland and had no strategic reasons for his
actions and inactions.
This Court's reviewal is done on a case by case examination of the totality of the
evidence. Williams, 529 U.S. at 391, Strickland, 466 U.S. at 695. See also Taylor v Kentucky,
436 U.S. 478 (1978)(Cumulative errors, while individually harmless, when considered together,
can prejudice defendant as much as a single reversable error and violate a defendant's right to due
process of law); Williams v Taylor, 529 U.S. 362 (2000); Wiggins v Smith, 539 U.S. 510 (2003).
Structural error "deprives defendantt of basic protections without which a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or innocence, .. and no
criminal punishment may be regarded as fundamentally fair.'" Neder v United States, 527 U.S. 1,
32-
8-9 (1998)(quoting Rose v Clark, 478 U.S. 570, 577-78 (1986).
Habeas corpus relief is available only to protect against "a fundamental defect which
inherently results in a complete miscarriage of justice, or an omission inconsistent with the
rudimentary demands of fair procedure." United States v Timmreck, 441 U.S. 780, 783 (1975)
(quoting Hill, 368 U.S. at 428).
Brown has demonstrated herein by clear and convincing facts and evidence apparant on
the record that the state Courts conviction resulted in a decision that was contrary to clearly
established federal law and involved an unreasonable application of Strickland, also resulted in a
decision that was based on an unreasonable determination of the facts,and that counsel's
representation fell below an objective standard of reasonableness under prevailing professional
norms considering all the circumstances. 28 U.S.C. § 2254(d)(1) &(2); Strickland, 104 S.ct. at
2064-65. The Third Circuit Court of Appeals erred in it's denial and this court has a duty to
correct clear and obvious errers, to protect the public interest and the judiciary integrity and
Brown should be allowed to proceed futher. SAW*-- v
v
c\<S.
0161)} u.?.
u.S\ 157, l6o U13&).
n THE COURT OF APPEALS ERRED AFFIRMING THE DENIAL OF PETITIONER'S
§2254 PETITION WHERE THE DISTRICT COURT FAILED TO CONDUCT
AN EVIDENTIARY HEARING TO RESOLVE THE FACTUAL DISPUTES
Section 2254(e)(1) provides that "a determination of a factural issue made by a state
court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See
e.g. Fontaine v United States, 411 U.S. 213,215 (1973)(reversing summary dismissal and
remanding for hearing because "motion and the files and records of the case did not conclusively
show that petitioner is entitled to no relief); Saunders v United States, 373 U.S. 1,19-21 (1963);
Davis v Ayala, 576 U.S. 257, 271 (2015).
The Court presumes any factual determination made by the state Courts are correct,
"unless the petitioner rebuts the 'presumption of correctness by clear and convincing
evidence.'" Howell v Superintendent Rockview SCI, 939 F.3d 260, 264 (3d Cir. 2019)(quoting
Lambert v Blackwell, 387 F.3d 210, 234 (3d Cir. 2004).
Brown's § 2254 petition alleged facts that, if proved, entitle Brown to relief. See Hill v
Lockhart, 474 U.S. 52, 60 (1985); and jBlackledge v Allison, 431 U.S. 63, 82-83 (1977).
Petitioner asserted that he would not have pleaded guilty had he been correctly advised of the
statutory maximum sentence penalty provided by law. Petitioner presented an affidavit detailing
the facts concerning the statutory maximum he was advised of by counsel which was supported
by the record and stated under oath he would not have pleaded guilty had he known the correct
statutory maximum penalty provided by law. Thus, petitioner was entitled to an hearing. See
United States v Scott, 625 F.2d 623, 625 (5th Cir. 1980); Pitts v United States, 763 F.2d at 201;
United States v Birdwell, 887 F.2d 643, 645 (5th Cir. 1989)(evidentiary hearing warranted if
petition contains "specific factual allegations not directly contradicted in the recordn);
Richardson v Superintendent Coal Twp SCI, 905 F.3d 750 (3d Cir. 2018); Fook v
Superintendent, 96 F.4th 595 (3d Cir. 2023); Jordan v Hepp, 831 F.3d 837, 849-50 (7th Cir.
2016)(A district Court must conduct a hearing under section 2254(e) to determine if these facts
are true).
CONCLUSION
Brown has been deprived of basic fundamental rights guaranteed by the Fifth, Sixth and
fourteenth Amendments of the United States Constitution and seek relief in this Court to restore
those rights. Base on the arguments and authorities presented herein, Brown's guilty plea was
sustained in violation of due process and not voluntarily or intelligently entered because he did
not understand the consequences of his plea, received incorrect legal advise and was deprived of
his right to effective legal assistance of counsel at plea and sentence stage in the state Courts.
Brown prays this court will issue a writ and reverse the Order of the Third Circuit Court of
Appeals2 or whatever relief this court sees fit.
Date: January<2.1,2025
Respectfully submitted
Paul BrowrfMD-1590
Pro Se
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866
If this Court elects not to address the issues presented in this petition at this time, it is requested that the writ issue and the
matter remanded to the third Circuit Court for reconsiseration in light of this Court's opinion in Strickland, Hill, Timmreck,
Fontaine, Saunders, Davis, all supra
35
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