Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
3-10-2004
Lewis v. Johnson Precedential or Non-Precedential: Precedential
Docket No. 01-1036P
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Recommended Citation "Lewis v. Johnson" (2004). 2004 Decisions. Paper 894. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/894
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER,* District Judge UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT (Opinion Filed March 10, 2004 )
No. 01-1036 Michael D. Bartko, Esquire (Argued) Suite 401 210 Grant Street CHARLES THOM AS LEWIS, Pittsburgh, PA 15219
Appellant Attorney for Appellant
v. Ronald M. Wabby, Jr., Esquire (Argued) Office of the District Attorney PHILIP L. JOHNSON, Superintendent, 401 Allegheny County Courthouse SCI-Pittsburgh; MIKE FISHER, Pittsburgh, PA 15219 Attorney General of Pennsylvania, Attorney for Appellees Appellees
OPINION OF THE COURT Appeal from the Order denying Petition for Writ of Habeas Corpus and denying a Certificate of TUCKER, District Judge. Appealability entered on December 8, 2000, in the United States District Court This matter comes to us on appeal for the Western District of Pennsylvania from the district court’s denial of Appellant Charles Thomas Lewis’s (D.C. Civil Action No. 00-cv-1500) application for writ of habeas corpus, seeking relief from his state conviction on District Judge: Hon. William L. Standish grounds his Sixth Amendment right to effective assistance of counsel was violated. Specifically, Lewis contends that Argued June 26, 2003 his trial counsel’s failure to file a notice of appeal constituted constitutionally-
Eastern District of Pennsylvania, sitting by * Hon. Petrese B. Tucker, United designation. States District Court Judge for the deficient performance within the meaning On March 12, 1987, nine days of Strickland v. Washington, 466 U.S. 668 following his sentencing, Lewis filed a (1984), and Roe v. Flores-Ortega, 528 timely motion pro se in the trial court U.S. 470 (2000), and deprived him of his challenging the validity of his guilty plea first appeal of right. In accordance with on several grounds, including ineffective the foregoing, we reverse the district assistance of counsel. On April 10, 1987, court’s order denying habeas relief and trial counsel filed a “Motion for Leave to remand with instructions that a writ be Withdraw Guilty Plea,” which the trial issued conditioned on the Commonwealth court summarily denied without opinion. reinstating nunc pro tunc Lewis’s right of The trial court did not rule on Lewis’s pro first appeal. se motion and the parties indicate that it remains pending. No appeal was taken I. BACKGROUND from either the judgment of sentence or the trial court’s ruling denying the counseled A. Trial Proceedings motion to withdraw the guilty plea.
Lewis is presently an inmate at the B. First Petition for Post-Conviction State Correctional Institution at Pittsburgh Relief Under State Law where he is serving a 30 to 60 year sentence imposed by the Pennsylvania On February 1, 1988, Lewis filed Court of Common Pleas of Allegheny his first post-conviction petition pro se County (“trial court”) following his pursuant to the Pennsylvania Post conviction on six counts of robbery and Conviction Hearing Act (“PCHA”), 42 nine other criminal offenses. Lewis Pa.C.S. § 9541 et seq,1 in the Common pleaded guilty to the charges on January Pleas Court of Allegheny County. Counsel 27, 1987, and was sentenced on March 3, was appointed and an amended petition 1987. Lewis was sentenced to six was subsequently filed. Among the issues consecutive 5 to 10 year terms for each raised in the PCHA petition was robbery count, to be followed by eleven ineffective assistance of counsel based on years of probation for the bad checks and firearms charges. Lewis was represented by John Elash, a court-appointed attorney, 1 The PCHA was repealed on April during the guilty plea and sentencing 13, 1988, and superseded by the Post- proceedings. Following the announcement Conviction Relief Act (“PCRA”), 42 of the sentence, the trial judge informed Pa.C.S. §§ 9541-9546. It appears from the Lewis of his right to file post-trial motions record that Lewis may have filed his challenging the validity of his guilty plea PCHA petition on November 25, 1987, see or requesting modification of the sentence Appendix, Vol. 1 at 105, 231, but we use within 10 days of the proceeding. the date cited in the magistrate judge’s report and recommendation.
2 trial counsel’s: (1) failure to move to merit. The only evidence withdraw Lewis’s guilty plea when the indicating the desire to trial court did not accept the alleged plea appeal was provided in the agreement and sentence Lewis to 5 to 10 appellant’s testimony at the years on each robbery count running hearing on the PCHA concurrently rather than consecutively; (2) petition. However, in failure to appeal the trial court’s denial of reviewing the transcript of Lewis’s motion for leave to withdraw the the hearing, we find nothing guilty plea “despite having a meritorious in the record to support the argument that the guilty plea was appellant’s testimony. The unlawfully induced”; and (3) failure to file PCHA court resolved the a direct appeal from the denial of the post- issue of credibility in favor trial motion and judgment of sentence.2 of trial counsel. That Appendix, Vol. 1 at 117. Lewis’s PCHA determination will not be petition was denied following an disturbed on appeal. We evidentiary hearing. Lewis appealed the therefore adhere to the decision to the Superior Court, which holding in Dockins,... addressed the sole of issue of whether providing that trial counsel Lewis was denied his right of direct cannot be found ineffective appeal. The Superior Court concluded that for failing to file a direct its prior decision in Commonwealth v. appeal when not requested Dockins, 471 A.2d 851 (Pa. Super. 1984), to do so. which holds that “trial counsel cannot be found ineffective for failing to file a direct Appendix, Vol. II at 385. Lewis’s petition appeal when not requested to do so,” was for allocator to the Pennsylvania Supreme controlling. The court affirmed the denial Court appealing the Superior Court’s of Lewis’s petition for post-conviction ruling was denied. relief under the PCHA based on its conclusion that: C. Second Petition for State Post- Conviction Relief [t]rial counsel admitted discussing the possible Lewis, represented by counsel, filed grounds for appeal and a second petition for post-conviction relief mentions that none of the on February 14, 1995, pursuant to grounds were of appellate Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Lewis again contested the validity of his 2 guilty plea and alleged trial counsel was Lewis raised these same claims in ineffective on a number of grounds, to the PCHA petition that he filed pro se. include for failing to take direct appeal Appendix, Vol. 1 at 110.
3 from the judgment of sentence which, ineffective for causing Lewis to enter a Lewis contended, was contrary to the guilty plea that was not voluntary and terms of his guilty plea. Another intelligent. Concluding that the state evidentiary hearing was held, and the courts’ resolution of this question was not PCRA petition denied thereafter. Lewis contrary to clearly established law, the appealed the decision to the Superior magistrate judge recom mended that Court. The court disposed of the question Lewis’s petition for habeas relief be of Lewis’s right to a direct appeal in a denied. footnote, holding that “his claim was meritless” since the court had previously Lewis timely filed objections to the decided the claim against him when it magistrate’s report and recommendation, adjudicated his first post-conviction arguing that the magistrate judge failed to petition under the PCHA, and held that (1) review his claim of ineffectiveness Dockins precluded relief. Appendix, Vol. arising from trial counsel’s failure to take II at 389 n.2 (citing Commonwealth v. a direct appeal, and (2) made no Lewis, No. 978 Pittsburgh 1989 (Pa. determination as to whether the record Super. Ct. filed July 18, 1990)). Lewis’s supported the state courts’ finding that he petition for leave to appeal this decision to had not asked trial counsel to take an the Pennsylvania Supreme Court was appeal. Lewis further argued that “counsel denied. denied assistance by unconstitutionally abandoning his assignment to my case D. Federal Habeas Petition during critical judicial proceedings without filing an appeal.” Appendix, Vol. III at Following the exhaustion of his 567. In support of his objections, Lewis state remedies, Lewis filed a timely pro se cited to the Supreme Court’s decisions in petition for writ of habeas corpus in the Flores-Ortega and Douglas v. California, United States District Court for the 372 U.S. 353 (1963). By order, the Western District of Pennsylvania on district court adopted the magistrate August 4, 2000. In his petition, Lewis judge’s report and recommendation and alleged, inter alia, that the decisions of the denied Lewis’s petition for federal habeas Commonwealth courts ran counter to relief. clearly e s t a b li s h e d fe d e ra l l aw . Specifically, Lewis contended that his trial Lewis filed a timely notice of counsel was ineffective for failing to file a appeal in this court. We granted Lewis’s direct appeal from the trial court’s denial application for a certificate of appealability of his motion for leave to withdraw his to consider whether trial counsel was guilty plea and the judgment of sentence. ineffective for failing file a direct appeal. The district court referred the case to the magistrate judge who addressed only the question of whether trial counsel was
4 II. DISCUSSION Supreme Court of the United States; or A. Standard of Review (2) resulted in a Our jurisdiction to review a district decision that was based on court’s order denying a state inmate’s an unreasonable petition for habeas relief is derived from determination of the facts in 28 U.S.C. §§ 1291, 2253. Where, as in light of the evidence this case, “the District Court relied presented in the State court exclusively on the state court record and proceeding. did not hold an evidentiary hearing, our review of its decision is plenary.” Moore 28 U.S.C. § 2254(d)(1). The AEDPA v. Morton, 255 F.3d 95, 103 (3d Cir. 2001) “modifie[d] the roles of federal habeas (citation omitted). Lewis, a state inmate courts in reviewing petitions filed by state seeking relief from his state court prisoners.” Williams v. Taylor, 529 U.S. conviction, filed his federal habeas petition 362, 403 (2000). Under this new statutory in 2000; thus our adjudication of this case rubric, “[w]e are to review the state court’s is governed by the provisions of the determinations on the merits only to Antiterrorism and Effective Death Penalty ascertain whether the court reached a Act of 1996 (“AEDPA”), which, in decision that was ‘contrary to’ or an relevant part, provides: ‘unreasonable application’ of clearly established Supreme Court law, or whether An application for a it made an ‘unreasonable determination’ of writ of habeas corpus on the facts.” Marshall v. Hendricks, 307 behalf of a person in F.3d 36, 51 (3d Cir. 2002). “[T]he custody pursuant to the determination whether or not a rule is judgment of a State court clearly established at the time a state court shall not be granted with renders its final judgment of conviction is respect to any claim that a question as to which the ‘federal courts was adjudicated on the must make an independent evaluation.’” merits in State court Williams, 529 U.S. at 382 (quoting Wright proceedings unless the v. West, 505 U.S. 277, 305 (1992) adjudication of the claim– (O’Connor, J., concurring in judgment)). The AEDPA does, however, confine the (1) resulted in a authorities on which federal courts may decision that was contrary rely in making this determination to the t o , o r i n v o lv e d a n decisional law of the Supreme Court, that unreasonable application of, is, the “Federal law, as determined by the clearly established Federal Supreme Court of the United States.” Id. law, as determined by the at 381-82 (quotation omitted).
5 The question in this case is whether the AEDPA “bears only a slight Lewis’s trial counsel was ineffective for connection” to the nonretroactivity not filing a notice of appeal. Lewis relies principle articulated in Teague v. Lane, on the Supreme Court’s decision in 489 U.S. 288 (1989), and its progeny Flores-Ortega, which held that criminal except to the extent that “whatever would defense attorneys have a constitutional qualify as an old rule under our Teague duty to consult and advise defendants of line of cases will constitute ‘clearly their appellate rights. Flores-Ortega was established Federal law, as determined by decided after Lewis’s conviction was the Supreme Court of the United States’ finally adjudicated, thus we certified two under § 2254(d)(1).” Williams, 529 U.S. questions in our order granting Lewis’s at 412 (citation omitted). “The appeal. The first asks whether, in light of nonretroactivity principle prevents a Strickland and Flores-Ortega, the federal court from granting habeas corpus Commonwealth courts’ “application of the relief to a state prisoner based on a [new] rule of Commonwealth v. Dockins, rule announced after his conviction and [supra], to appellant’s claim resulted in a sentence became final.” Caspari v. decision that was ‘contrary to, or involved Bohlen, 510 U.S. 383, 389 (1994). an unreasonable application of clearly established Federal law, as determined by As we have explained, “Teague the Supreme Court of the United States[.]’ teaches that the federal courts in habeas 28 U.S.C. § 2254(d)(1).” As an corpus proceedings should be reluctant to antecedent to this question, we instructed apply new rules of federal jurisprudence in that the parties “first address the question state court cases decided before such new to what extent the holdings of Flores- rules were handed down. Principles of Ortega constitute ‘clearly established comity and finality counsel that we federal law.’ See Williams v. Taylor, maintain a circumscribed scope of habeas [supra].” We begin our inquiry addressing review.” Banks v. Horn, 271 F.3d 527, this latter question. 543 (3d Cir. 2001), rev’d on other grounds by Horn v. Banks, 536 U.S. 266 (2002), B. Teague Analysis and reaff’d by Banks v. Horn, 316 F.3d 228 (3d Cir. 2003) [hereinafter “Banks 1. III”] (citing Teague, 489 U.S. at 308). 3 The Supreme Court has acknowledged that “The threshold question under the AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly 3 Banks III is currently pending established at the time his state-court appeal before the Supreme Court. See conviction became final.” Williams, 529 Beard v. Banks, 124 S. Ct. 45 (2003) U.S. at 390. In Williams, the Supreme (Mem) (granting petition for writ of Court held that this limiting provision of certiorari).
6 discerning whether a rule is “old” or defendant’s conviction became final. “new” for retroactivity purposes is not Second, we must survey the legal without diff icult y, “[b]u t Teague landscape to determine whether or not the established some guidance for making this case in question announced a new rule of determination, explaining that a federal constitutional law. Finally, if we determine habeas court operates within the bounds of that the case did announce a new rule, we comity and finality if it applies a rule must consider whether it fits into one of ‘dictated by precedent existing at the time the two exceptions to nonretroactivity.” the defendant’s conviction became final.’” Banks III, 316 F.3d at 233 (citing Caspari, Williams, 529 U.S. at 381 (quoting 510 U.S. at 390). There is no dispute in Teague, 489 U.S. at 301). Conversely, a this case that the final adjudication of “new” rule is one which “breaks new Lewis’s conviction pre-dated Flores- ground or imposes a new obligation on the Ortega and the two exceptions to the States or the Federal Government.” Id. Teague bar do not apply. Thus we focus The question of whether a rule is “old” or our inquiry on step two, reviewing the “new” for Teague purposes remains one legal landscape to determine whether the “which the ‘federal courts must make an duty to consult announced in Flores- independent evaluation.’” Id. at 382 Ortega was dictated by precedent clearly (quoting Wright, 505 U.S. at 305 established at the time Lewis’s conviction (O’Connor, J., concurring in judgment)). became final. 5 Williams, 529 U.S. at 412. In accord with the AEDPA, federal courts may rely only on the precedents of the S up re m e Co urt in making this determination. Id. at 412.
Teague outlines a three-step analysis for determining whether the nonretroactivity principle prevents a habeas petitioner’s reliance on a particular context did not arise. We directed the rule.4 “First, we must determine when the parties sua sponte to brief the question. 5 Wh ether Flo res-Ortega constitutes an “old” rule for retroactivity 4 We note that, while the question purposes is a question of first impression of whether a particular rule is Teague- in this Circuit. Our research indicates that barred is a threshold question, a “federal only one Federal Court of Appeals has court may, but need not, decline to apply considered this question on the merits. In Teague if the State does not argue it.” Daniel v. Cockrell, 283 F.3d 697, 708 (5th Horn, 536 U.S. at 271. The district court Cir. 2002), the Fifth Circuit held, without did not consider Lewis’s Flores-Ortega discussion, that Flores-Ortega constitutes challenge, and the Teague issue in this a “new” rule for Teague purposes.
7 2. appeal), or (2) that this particular defendant reasonably demonstrated to In Flores-Ortega,6 the Supreme counsel that he was interested in Court addressed the question of whether appealing.” 528 U.S. at 480. The Court counsel may be found deficient for failing further explained that it “employ[ed] the to file a notice of appeal absent specific term ‘consult’ to convey a specific instruction from the defendant. Because meaning–advising the defendant about the the question concerned whether counsel’s advantages and disadvantages of taking an representation wa s con stitutiona lly appeal, and making a reasonable effort to defective, the Court held that the familiar discover the defendant’s wishes.” Id. at two-part test announced in Strickland 478. Additionally, the Supreme Court governed its inquiry. 7 528 U.S. at 476-77. instructed that courts undertaking this Applying the Strickland standard to the inquiry, as with all ineffective assistance particular facts before it, the Court held claims, “take into account all the that “counsel had a constitutionally information counsel knew or should have imposed duty to consult with the defendant known.” Id. at 480 (citing Strickland, 466 about an appeal when there is reason to U.S. at 690). With respect to Strickland’s think either (1) that a rational defendant prejudice prong, the Court held that the would want to appeal (for example, harmless error inquiry applied and that because there are nonfrivolous grounds for relief could not be granted unless the defendant could “demonstrate that there is a reasonable probability that, but for 6 We begin our Teague analysis counsel’s deficient failure to consult with with Flores-Ortega, as “[t]he crux of the him about an appeal, he would have timely analysis when Teague is invoked... is appealed.” Id. at 484. identification of the rule on which the claim for habeas relief depends.” Wright, The parties do not dispute that 505 U.S. at 311 (Souter, J., concurring in Strickland’s reasonableness test was judgment). See also Banks III, 316 F.3d at clearly established law in 1987 when 232. Lewis’s conviction became final, and that 7 it governs the adjudication of this case. Under Strickland, “[a] defendant See Williams, 529 U.S. at 391 (“It is past claiming ineffective assistance of counsel question that the rule set forth in in violation of the Sixth Amendment... Strickland qualifies as ‘clearly established must sh ow f i r s t t h a t coun sel’ s Federal law[.]”). Rather, the point of r e p r e s e n t a t i o n w a s o b j e c t i v e ly contention rests with the Court’s second unreasonable, and second, that counsel’s holding in Flores-Ortega respecting the deficient performance was prejudicial.” duty to consult. Lewis contends the United States v. Solis, 252 F.3d 289, 293 second holding of Flores-Ortega was (3d Cir. 2001) (citing Flores-Ortega, 528 dictated by precedent, and urged at oral U.S. at 476-77).
8 argument that the Supreme Court merely the particular case, viewed as of the time “clarified” the law as it applied to the facts of counsel’s conduct.” 466 U.S. at 690 before it. Conversely, the Commonwealth (emphasis added). This standard argues that this holding imposed a new “provides sufficient guidance for resolving burden on the States by “set[ting] forth a virtually all ineffective-assistance-of- new standard for the appellate process” counsel claims.” Williams, 529 U.S. at and is barred by Teague from application 391. in this case. For these re a sons , the We note as an initial matter that the Common wealth’s emphasis on the Commonwealth has provided little analysis particular duty identified by the Flores- and cites no authority for this position. Ortega Court – counsel’s constitutional When pressed at oral argument, counsel obligation to consult with her client for the Commonwealth could only point to regarding appeal options – as a basis for language in the Court’s opinio n classifying this rule as “new” for Teague announcing the decision, “[t]oday... we purposes is misplaced. “That the hold” and “the standard we announce Strickland test ‘of necessity requires a today,” 528 U.S. at 480, language which case-by-case e xa mination of th e counsel took “to mean a new rule, if you evidence,’... obviates neither the clarity of announce the rule today.” See also the rule nor the extent to which the rule Appellee Br. at 22. This language is must be seen as ‘established’ by this hardly dispositive or even persuasive. The [Supreme] Court.” Id. (quoting Wright, point of the Teague analysis is to 505 U.S. at 308 (Kennedy, J., concurring determine whether a rule which post-dates in judgment)). Justice Kennedy’s the State’s final adjudication of a habeas concurrence in Wright v. West is petitioner’s conviction may, without instructive on this point: offending principles of comity and finality, be retroactively applied. The language on If the rule in question is one which the Commonwealth relies merely which of necessity requires states the obvious (that the case announced a case-by-case examination a rule on a particular day) and does not of the evidence, then we can inform the second prong of our Teague tolerate a number of specific inquiry. Further, we note that case law applications without saying need not exist on all fours to allow for a that those applications finding under Teague that the rule at issue themselves create a new was dictated by Supreme Court precedent. rule.... Where the beginning Strickland is a rule of general applicability point is a rule of this general which asks whether counsel’s conduct was application, a rule designed objectively reasonable and conformed to for the specific purpose of professional norms based “on the facts of evaluating a myriad of
9 factual contexts, it “important decision.” See, e.g., Flores- will be the infrequent Ortega, 528 U.S. at 489 (Souter, J., case that yields a concurring in part and dissenting in part); result so novel that it Evitts v. Lucey, 469 U.S. 387 (1985); forges a new rule, Wainwright v. Sykes, 433 U.S. 72, 92 one not dictated by (1977) (Burger, C.J., concurring) (noting precedent. the question of whether to appeal is a “critical procedural decision”); Rodriguez 505 U.S. at 308-09 (emphasis added). Our v. United States, 395 U.S. 327 (1969). It review of the legal landscape, well-settled follows then that since the decision to at the time Lewis’s conviction became appeal “cannot be made intelligently final, compels us to conclude that Flores- without appreciating the merits of possible Ortega did not “yield[] a result so novel grounds for seeking review, and the that it forge[d] a new rule,” and that potential risks to the appealing defendant, Flores-Ortega’s application of the a lay defendant needs help before Strickland standard was dictated by deciding.” 8 Flores-Ortega, 528 U.S. at precedent and merely clarified the law as it 489 (Souter, J.) (emphasis added) applied to the particular facts of that case. (citations omitted).
Indeed we need look no further than This proposition – that a defendant Strickland in making this determination. requires the advice of counsel to make an I n a n n o u n c in g t h e o b jectiv e informed decision respecting his right of reasonableness standard, the Strickland appeal – was hardly novel in 1987. It was Court identified “certain basic duties” that clearly established that the Sixth its p r e c e dents and then-ex isting Amendment’s guarantee of effective professional norms established criminal defense attorneys must carry out to perform competently within the meaning 8 We note that the Flores-Ortega of Sixth Amendment. The Court included majority and the Justices dissenting in part among these duties “counsel’s [obligation and joining in Justice Souter’s opinion to] function as assistant to the defendant... disagreed only on the question of whether [and] the overarching duty to advocate the counsel should have a per se duty to defendant’s cause and the more particular consult the defendant in all cases. See 528 duties to consult with the defendant on U.S. at 481. The majority rejected such a important decisions and to keep the bright-line rule though recognizing it as defendant inform ed of important the “better practice,” id. at 479, whereas developments in the course of the Justice Souter would have held that prosecution.” Strickland, 466 U.S. at 688 counsel is “almost always” obligated to (emphasis added). The decision whether consult her client about an appeal. Id. at to appeal is unquestionably one such 488.
10 assistance of counsel extended to the first view comports with the prevailing appeal as of right, and the Strickland professional norms existing in 1987, to the s t a n d a r d a p p l i ed t o ap p e l l at e extent these norms are denoted in the representation. See generally Jones v. published standards of the American Bar Barnes, 463 U.S. 745 (1983); Evitts, 469 Association (“ABA”). Flores-Ortega, 528 U.S. 387. The Supreme Court cases U.S. at 490, quoting ABA Standards for respecting attorney competence on appeal Criminal Justice 21-2.2(b) (2d ed. 1980) recognized that lay defendants “may not (“Defense counsel should advise a even be aware of errors which occurred at defendant on the meaning of the court’s trial,” Rodriguez, 395 U.S. at 330, and judgment, of defendant’s right to appeal, required “the superior ability of trained and of the probable outcome of counsel in the ‘examination into the appealing.”). Promulgated in 1980, the record, research of the law, and ABA’s standards pre-date Strickland. The marshalling of arguments’” on appeal just Supreme Court has cited with approval the as at trial. Jones, 463 U.S. at 751 (quoting use of “[p]revailing norms of practice as Douglas v. California, 372 U.S. at 358). reflected in the American Bar Association Thus, though “the accused has the ultimate standards and the like... [as] guides to authority to make certain fundamental determining what is reasonable, but only decisions regarding the case,... [including] guides.” Strickland, 466 U.S. at 688; whether to plead guilty, waive a jury, Flores-Ortega, 528 U.S. at 479. In light of testify in his or her own behalf, or take an the foregoing well-settled Supreme Court appeal,” id. at 751 (citing Sykes, 433 U.S. precedents respecting the constitutional at 93, n.1 (Burger, C. J., concurring)); standard for appellate representation, we ABA Standards for Criminal Justice 4-5.2, believe reasonable jurists applying the 21-2.2 (2d ed. 1980)), counsel was Strickland standard to Lewis’s claim constitutionally obligated to advise the would have concluded that the Court’s defendant respecting those decisions to “previous precedents... [did] not simply allow for intelligent exercise of the ‘inform, or even control or govern’ the particular right. See, e.g., Rock v. analysis, but instead... compel[led] the Arkansas, 483 U.S. 44 (1987) (right to rule” in Flores-Ortega. Banks III, 316 testify on one’s behalf); Hill v. Lockhart, F.3d at 234 (quoting Saffle v. Parks, 489 474 U.S. 52 (1985) (guilty plea; waiver of U.S. 484, 491 (1990)) (add’l citation right to jury trial). Flores-Ortega broke no omitted). new ground in holding the duty to consult also extended to counsel’s obligation to Accordingly, we hold that Flores- advise the defendant of his appellate Ortega’s application of the Strickland rights. standard did not forge new ground or otherwise impose a new obligation upon As Justice Souter’s concurring the States in announcing the duty to opinion in Flores-Ortega evidences, this consult, and this holding constitutes an
11 “old” rule which may be retroactively and “unreasonable application” have a p p l i ed t o L e w is ’s cl ai m of independent meanings, each of which must ineffectiveness.9 be given effe ct to accord with congressional intent. 529 U.S. at 407. C. M erits Analysis Justice O’Connor read “contrary” to employ its common meaning – that which 1. is “diametrically different,’ ‘opposite in character or nature,’ or ‘mutually Having concluded that the duty to opposed,’” id. at 405 – and concluded that consult as announced in Flores-Ortega a state-court decision is “contrary to” constitutes an “old” rule for retroactivity clearly established federal law if: (1) “the purposes and clearly established law, we state court applies a rule that contradicts now move to the merits of Lewis’s claim the governing law set forth in [the and consider the second question certified Supreme Court’s] cases,” id., or (2) “the on this appeal: whether, in light of state court confronts a set of facts that are Strickland and Flores-Ortega, the state materially indistinguishable from a courts’ application of the rule of decision of [the Supreme] Court and Commonwealth v. Dockins resulted in a nevertheless arrives at a result different decision that was “contrary to” or involved from [the Court’s] precedent.” Id. at 406. an “unreasonable application” of clearly established federal law. In Williams v. Justice O’Connor found the Taylor, Justice O’Connor, writing for the “unreasonable application” clause of the majority, held that the terms “contrary to” AEDPA “no doubt difficult to define,” id. at 410, but held generally that this provision is contravened if “a state-court 9 decision correctly identifies the governing The parties do not contest that the legal rule but applies it unreasonably to the third holding of Flores-Ortega, the facts of a particular prisoner’s case.” 10 Id. prejudice standard, is an “old” rule and clearly established law. To show prejudice under this standard, “a defendant must 10 demonstrate that there is a reasonable Justice O’Connor posited that the probability that, but for counsel’s deficient Fourth Circuit’s additional holding that failure to consult with him about an this clause includes any state-court appeal, he would have timely appealed.” decision which “unreasonably extends a 528 U.S. at 484. As the Supreme Court legal principle from our precedent to a new observed, “this prejudice standard breaks context where it should not apply (or no new ground, for it mirrors the prejudice unreasonably refuses to extend that inquiry applied in Hill v. Lockhart, principle to a new context where it should [supra], and Rodriguez v. United States, apply)’... may perhaps be correct, [but [supra].” Id. at 485. observed] the classification does have
12 at 407-08. The unreasonableness of a state Dockins stands for the proposition that court’s decision must be judged from an “[t]rial counsel can not be held ineffective objective standard; “a federal habeas court for failing to file an appeal when his client may not issue the writ simply because that has not asked him to do so.” Appendix, court concludes in its independent Vol. II at 385 (Superior Court PCHA judgment that the relevant state-court opinion citing Dockins) (add’l citation decision applied clearly established federal omitted). The dispositive question under law erroneously or incorrectly. Rather, Dockins is whether the defendant directed t h a t a p p l i c a t i o n m u s t a l s o be his trial counsel to perfect an appeal; the unreasonable.” Id. at 411; Mitchell v. inquiry begins and ends here. Pursuant to Esparza, 124 S. Ct. 7, 11 (2003) Dockins, Lewis’s petitions for post- (“unreaso nable application” is an conviction relief were denied based on the “objectively unreasonable” application of PCHA court’s conclusion, affirmed by the clearly established law as opposed to Superior Court, that “the Defendant does “incorrect”). Finally, we must accept the have an absolute right to direct appeal, but factual findings of the state court as they [defendants] must make efforts to presumptively correct, a presumption the contact an attorney in that respect and I petitioner may only rebut with clear and would submit based on Mr. Elash’s [trial convincing evidence. 28 U.S.C. § counsel] testimony and based upon the 2254(e)(1). lack of any other substantive evidence that he was not contacted within the 30 day 2. appeal period and, therefore, that there is a waiver of the right to direct appeal.” The Pennsylvania courts decided Appendix, Vol. 1 at 172-73 (emphasis Lewis’s post-conviction petitions on added). Dockins, then, is a per se rule of independent state law grounds concluding strict application which holds as a matter that his ineffectiveness claim was of law that counsel acts reasonably in all governed by Commonwealth v. Dockins.11 cases where a notice of appeal is not filed, and the defendant is silent. The Supreme
some problems of precision.” Williams, 529 U.S. at 409. Our decision today does not require that we explore this question. decision is not ‘contrary to... clearly established Federal law’ simply because 11 We note that the mere fact that the court did not cite our opinions.... [A] the Commonwealth courts failed to state court need not even be aware of our mention Strickland is not dispositive of the precedents, ‘so long as neither the question of whether the courts’ decisions reasoning nor the result of the state-court adjudicating Lewis’s claim were contrary decision contradicts them.’” Esparza, 124 to clearly established federal law. As the S. Ct. at 10 (quoting Early v. Packer, 537 Supreme Court has held, “[a] state court's U.S. 3, 8 (2002)).
13 Court invalidated a similar rule in Flores- circumstances. Whether a rule inures to Ortega. The challenged rule in that case the benefit or disadvantage of the obligated counsel to file an appeal in all defendant, Strickland does not permit the cases where the defendant had not imposition of such bright-line rules. As expressly instructed that an appeal not be the Williams Court stressed, “we have taken. 528 U.S. at 478. The Court quickly c o n sistently d e c l in e d t o i m p o se concluded that the rule, known as the mechanical rules on counsel – even when “Stearns rule,” 1 2 was con trary to those rules might lead to better Strickland, holding: representation.... ‘[T]he purpose of the effective assistance guarantee of the Sixth Such a rule effectively Amendment is not to improve the quality imposes an obligation on of legal representation... [but rather] counsel in all cases either simply to ensure that criminal defendants (1) to file a notice of appeal, receive a fair trial.’” 528 U.S. at 481 or (2) to discuss the (quoting Strickland, 466 U.S. at 689). possibility of an appeal with Thus, the Pennsylvania courts’ application the defendant, ascertain his of Dockins to Lewis’s ineffectiveness wishes, and act accordingly. claims was “contrary to” clearly We reject this per se rule as established law. inconsistent with Strickland’s holding that The Commonwealth does not “the performance inquiry seriously contest this conclusion. Rather must be reasonable the Commonwealth contends on brief that considering all “the state courts found that counsel did circumstances....” [T]hat ‘consult’ with appellant... [regarding] his alone mandates vacatur and appellate rights.” Appellee Br. at 26. remand. However, the Commonwealth backed away from this assertion at oral argument, Id. (quoting Strickland, 466 U.S. at 688)). conceding that none of the state courts The Dockins rule operates in much the which reviewed Lewis’s claims during the same manner: whereas the Stearns rule two rounds of post-conviction review automatically deemed counsel ineffective made a finding as to whether Lewis’s for failing to take an appeal where the court-appointed attorney consulted him defendant was silent, Dockins holds that regarding his appellate rights following the counsel always acts reasonably and may entry of the guilty plea, his sentencing or not be found ineffective in such the trial judge’s denial of his post-trial
12 See United States v. Stearns, 68 F.3d 328 (9th Cir. 1995).
14 motion.13 Where the state court has not Flores-Ortega obligates counsel to made a material finding, the usual course advise “the defendant about an appeal is to remand to the district court to hold an when there is reason to think either (1) that evidentiary hearing on the question. See a rational defendant would want to appeal Solis, 252 F.3d at 294-95 (remanding (for example, because there are under 28 U.S.C. § 2255 for evidentiary nonfrivolous grounds for appeal), or (2) hearing). However, in this case such a that this particular defendant reasonably hearing would likely be unproductive as demonstrated to counsel that he was the relevant events occurred over 16 years interested in appealing.” 528 U.S. at 480. ago. See Riley v. Taylor, 277 F.3d 261, Lewis pleaded guilty and does not seek to 294 (3d Cir. 2001) (en banc). Further, we appeal from a jury trial. The Supreme believe the issue of trial counsel’s Court has held this is a “highly relevant representation, following the sentencing factor” in deciding whether counsel was proceeding and the trial judge’s ruling duty-bound to advise a defendant about his denying the motion for leave to withdraw appellate rights, though the fact of a guilty the guilty plea, was sufficiently litigated plea is not dispositive. Id. In guilty-plea during the two evidentiary hearings held cases, our Strickland analysis must on Lewis’s post-conviction applications in “consider such factors as whether the state court to permit our adjudication of defendant received the sentence bargained this question. for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Id. This case is unique in 13 that whether or not a plea agreement The Superior Court’s PCHA existed, Lewis is entitled to federal habeas opinion mentions that “[t]rial counsel relief stemming from trial counsel’s failure admitted discussing possible grounds for to advise him of his right to appeal from appeal and mentions that none of the the trial court’s denial of his motion to grounds were of appellate merit.” withdraw the guilty plea. Appendix, Vol. II at 385. Trial counsel testified at the PCHA hearing that “I know Based on our review of the he [Lewis] was upset [after he was transcripts of the evidentiary hearings held sentenced], but I do have a recollection of in state court, it is clear that Elash did not telling him that he probably didn’t have meet with Lewis or otherwise attempt to any appellate rights that were viable.” Id. contact him after the senten cing at 163. Counsel for the Commonwealth proceeding or the post-trial motion was conceded at oral argument that this denied, although Lewis indicated an testimony is ambiguous at best and could interest in challenging his conviction. At not support a finding that trial counsel best, Elash could only recall speaking consulted with Lewis within the meaning briefly with Lewis in court following of Flores-Ortega, and the Pennsylvania sentencing, stating, “I know he was upset, courts did not make such a finding.
15 but I do have a recollection of telling him withdraw the guilty plea that he filed 28 that he probably didn’t have any appellate days late, evidences an inattention to his rights that were viable.” Appendix, Vol. 1 client’s interests, a neglect which caused at 163. Regarding Lewis’s attempts to Lewis to forfeit his right of appeal. While contact him after the sentencing and the trial counsel’s testimony alone supports post-trial motion was denied, Elash this finding, our decision is further testified, “I don’t have those records. You buttressed by the contemporaneous know, if he did, I wouldn’t – he may evidence of Lewis’s attempt to timely have... he might have had trouble getting assert his appellate rights. The trial judge in touch with me.” Id. It is not clear from denied the post-trial motion filed by Elash the hearing transcripts whether Elash was on April 16, 1987, and Lewis’s time to aware that Lewis had filed a motion pro se appeal expired 30 days later on May 16, to withdraw the guilty plea, but the motion 1987. On May 3, 1987, Lewis wrote to the was entered on the trial docket and Elash Clerk of the Court stating, “[s]ince my should have been aware of it. See id. at sentence of 30 to 60 years on March 3, 105. In any case, Elash testified that he 1987, I have received no correspondence filed the motion to withdraw only after from John Elash[,] Esq. my attorney at Lewis instructed him to do so, apparently hand, and I have no idea, what is by correspondence. Id. at 162. At a happening, or what will happen. So im minimum, this should have put Elash on [sic] asking for an extension of time, to notice that Lewis may have been interested prepare my case in the proper order, and in appealing the trial judge’s ruling and his conviction. See Flores-Ortega, 528 U.S. at 480 (citation omitted) (instructing motion, Lewis alleged his plea was invalid “courts must take into account all the “due to inducement of promise from information counsel knew or should have Defendant[’]s attorney to combine all known”). charges as one (1) for one (1) lesser sentence,” and ineffective assistance Trial counsel’s testimony, coupled resulting from trial counsel “not raising or with the bare-boned post-trial motion14 to arguing” to enforce the plea agreement and advising him to plead guilty. Id. at 84. Even if trial counsel believed any post-trial 14 The motion Elash filed on motion or appeal would be frivolous, his Lewis’s behalf was three sentences in proper course would have been to follow length and, as the basis for the motion, the procedures set forth in Anders v. stated only that “Defendant avers that his California, 386 U.S. 738 (1967), or plea was not knowingly or intelligently Commonwealth v. McClendon, 434 A.2d entered.” Appendix, Vol. 1 at 87. No 1185 (Pa. 1981), and seek permission to factual predicate was established nor legal withdraw from the case after giving notice authority cited. Conversely, in his pro se to Lewis of his intention.
16 without any knowledge of the legal probability that, but for counsel’s deficient system.” Appendix, Vol. 1 at 92. In June performance, he would have appealed. of 1987, Lewis also wrote letters to the Flores-Ortega, 528 U.S. at 484. The Pennsylvania State Bar Association and contemporaneous evidence of Lewis’s the Disciplinary Counsel reporting Elash desire to challenge his conviction satisfies for alleged misconduct in the handling of this requirement. In addition, Lewis has his case and complaining that he had not also identified nonfrivolous points to raise heard from Elash since the sentencing, on an appeal, among them ineffective despite attempts to contact him. Id. at 94- assistance of counsel resulting from (1) 95. Finally, on July 13, 1987, Lewis wrote trial counsel’s failure to object and move to the Clerk of the Court requesting to enforce the alleged plea agreement information about “the present state, of when he was sentenced to consecutive any appeal you may have submitted to the terms of 5 to 10 years of imprisonment on Court in my behalf, and who is the lawyer the six robbery counts rather than to of record.” Id. at 96. concurrent terms, and (2) trial counsel’s failure to timely move to withdraw the We believe this record compels a guilty plea when he did not get the benefit finding that trial counsel’s conduct was of the alleged plea agreement. 15 See id. at objectively unreasonable. We can think of 486 (“showing nonfrivolous grounds for no strategic reason to explain why Elash appeal may give weight to the contention failed to follow-up with Lewis either that the defendant would have appealed”). following the sentencing or after the trial Lewis may raise these and all other claims court denied the motion to withdraw, and on his direct appeal. the Commonwealth offers none. The ultimate decision to appeal rests with the III. CONCLUSION defendant. Jones, 463 U.S. 745. Thus, even if Elash concluded that any appeal The district court’s order denying would be frivolous, he could not disregard the petition for a writ of habeas corpus is the evidence of Lewis’s unequivocal desire reversed. This matter is remanded to the to challenge his sentence and guilty plea, and abandon his client at this critical stage in the proceedings. See Evitts, 469 U.S. at 15 We note that although Lewis was 394 (counsel’s procedural error depriving facing 10 to 20 years on each robbery the defendant of his appeal rights “difficult count, a decision to withdraw the guilty to distinguish... from that of some who had plea under the facts of this case would not no counsel at all”), citing Anders, 386 U.S. have been objectively irrational. Lewis 738 (add’l citation omitted). was 36 years old and did not have a prior record when he was convicted and Finally, we hold that Lewis has sentenced to 30 to 60 years of demonstrated that there is a reasonable incarceration.
17 district court with instructions that it issue a writ of habeas corpus conditioned upon the Commonwealth’s reinstatement of Lewis’s right of first appeal within 45 days from entry of the district court’s order granting the petition.