The opinion of the court was delivered by: McLaughlin, J.
I. BACKGROUND......................... 2
A. The Petitioner Pleads Guilty .. . . . . . . . . . . 3
1. The April 11, 1991, Plea Hearing . . . . . . . . 3
2. The Petitioner's Written Plea Statement .................... 7
3. The Condition to the Petitioner's Plea ..................... 12
B. The Petitioner Testifies at His Co-Defendant's Trial........................ 13
C. The Petitioner Attempts to Withdraw His Guilty Plea at Sentencing and in Post-Sentence Motions . . . . . . . . . . . . . . . 16
D. The Petitioner's First PCRA Petition .. . . . . . . 19
E. The Petitioner's Second PCRA Petition.. . . . . . . 20
1. The February 20, 2002, Hearing.. . . . . . . . 21
2. The March 15, 2002, Hearing .. . . . . . . . . 23
3. The Decision.................. 26
4. The Appeal................... 29
F. The Petitioner's Third PCRA Petition .. . . . . . . 32
1. The Petition.................. 32
2. The Decision.................. 35
3. The Appeal................... 37
G. The Petitioner's Petition for Writ of Habeas Corpus .................. 41
II. ANALYSIS......................... 46
A. The Timeliness of the Petition .. . . . . . . . . . 47
B. Procedural Default .. . . . . . . . . . . . . . . . 49
1. Exhaustion of Claims in Ground One.. . . . . . 49
2. Exhaustion of Claims in Ground Two.. . . . . . 52
3. Exhaustion of Claims in Ground Three.. . . . . 53
4. Exhaustion of Claims in Ground Four .. . . . . 54
5. Excuse for Procedurally Defaulted Claims..................... 54
C. Cognizability.................... 55
D. Review of the Remaining Claims on the Merits ....................... 59
1. Claims of Error in Grounds Two and Three ................... 61
a. Claims 2.3 and 3.2 .. . . . . . . . . . . 63
b. The Remaining Claims of Grounds Two and Three............... 73
(1) Claim 2.2 .............. 73
(2) Claim 2.5 .............. 75
(3) Claim 2.7 .............. 78
(4) Claim 3.1 .............. 79
2. Claims of Error in Ground One .. . . . . . . . 79
a. Claim 1.1 ................ 81
b. Claim 1.2 ................ 83
c. Claim 1.3 ................ 84
d. Claim 1.4 ................ 86
e. Claim 1.5 ................ 87
f. Claim 1.6 ................ 88
g. Claim 1.7 ................ 90
h. Claim 1.8 ................ 92
i. Claim 1.10 ................ 94
j. Claim 1.11 ................ 96
k. Claim 1.12 ................ 98
l. Claim 1.13 ................ 103
E. Availability of an Evidentiary Hearing. . . . . . . 108
F. Issuance of a Certificate of Appealability. . . . . 110
Petitioner James A. Burke filed a petition for habeas corpus in this Court pursuant to 28 U.S.C. § 2254. The petitioner, who is currently incarcerated in the State Correctional Institution-Mahanoy in Frackville, Pennsylvania, pled guilty in 1991 to second-degree murder for his participation, along with his cousin, in the robbery and shooting death of a drug dealer. He now seeks habeas relief claiming ineffective assistance of counsel and various errors by the courts that considered his plea, his direct appeal, and his petition for post-conviction relief.
The habeas petition was referred to the Honorable Magistrate Judge Carol Sandra Moore Wells. Judge Wells has filed a report and recommendation, recommending that the petition be denied and dismissed without an evidentiary hearing and with a finding that there is no basis for the issuance of a certificate of appealability. The petitioner has filed timely objections to the report and recommendation.
The Court has reviewed the report and recommendation, the petitioner's objections, the petitions, answers, and memoranda filed by the parties, and the state court record. The issues raised by the petition are complex. The habeas petition raises over thirty claims for relief involving alleged errors by counsel and the state courts at both the trial and appellate levels and in both direct and collateral proceedings. The issues raised by the petition are complicated by the convoluted procedural history of the case, spanning over nineteen years.
Upon review, the Court finds that the petitioner's claims lack merit and should be dismissed without an evidentiary hearing. Because of the complexity of the issues involved and a substantial showing of the possible violation of a constitutional right, however, the Court will issue a certificate of appealability for the petitioner's claims concerning the adequacy of his plea colloquy and the voluntariness of his plea and for his claim alleging that his counsel was inadequate for allowing his direct appeal to be delayed for over ten years.
On September 26, 1990, a drug dealer named Kempt C. Qualis was robbed, shot, and killed. Petitioner James C. Burke and his cousin, Kevin Crawford, were arrested for the crime. The petitioner was charged in the Court of Common Pleas of Berks County with twenty-four counts, including first-degree murder. The prosecution filed a notice of intent to seek the death penalty on the first degree murder charge.
A. The Petitioner Pleads Guilty
On April 11, 1991, the petitioner, represented by trial counsel, pled guilty to second degree murder. As a condition of the plea, the government nolle prossed the other twenty-three counts against the petitioner, including the charge of first degree murder for which the government had sought the death penalty.
1. The April 11, 1991, Plea Hearing
At the beginning of April 11, 1991, hearing, the prosecution stated that the petitioner would be entering a plea to murder in the second degree and set out the Commonwealth's allegations against the petitioner: that on or about September 26 of 1990, the petitioner and his co-defendant Kevin Crawford entered Berks County, Pennsylvania, and shot Kempt Qualis while in the course of committing a robbery of cash and cocaine. Mr. Qualis was alleged to have been killed with a 9 millimeter handgun, and the petitioner was alleged to have fired the gun that shot and killed him. 4/11/91 N.T. at 2-3.
The trial court confirmed with the petitioner's counsel that all pending motions by the petitioner had been withdrawn in light of the plea. The trial court mentioned receiving a handwritten, pro se pleading from the petitioner for discovery. The petitioner's counsel explained to the court that the petitioner had filed the pro se motion because he was concerned that his counsel might not meet with him concerning the "elements of the case," the filing of pretrial motions, and the availability of "certain documents." The petitioner's counsel told the court that he believed that the petitioner was now satisfied with his representation and that the motion could be withdrawn. The petitioner was asked if he agreed that his counsel had tried to represent him competently and effectively and he agreed that he had. 4/11/91 N.T. at 4-7.
The trial court next conducted a colloquy with the petitioner. In the colloquy, the trial court asked the petitioner his age, educational background, and his employment history. The court asked whether the petitioner had ever been disabled and whether he was on medication. The court inquired about the petitioner's family, whether he was married and had children, his children's ages and gender, whether his parents were living and still lived together and whether they were his natural or adoptive parents. 4/11/91 N.T. at 8-11.
In the colloquy, the trial court did not discuss with the petitioner the nature of the charges to which the petitioner would be pleading, the factual basis for the plea, or the range of possible sentences he could receive. The trial court also did not discuss the petitioner's right to a jury, his right to be presumed innocent, or his right against self-incrimination, all of which he would be giving up by pleading guilty. The only questions directed by the trial court to the petitioner concerning his plea were in the following exchange:
THE COURT: You understand fully why you're here today and the purpose of the plea and what the significance of the plea is, right?
THE DEFENDANT: Yes, I do.
THE COURT: You had a chance to review this with [your counsel]?
THE COURT: And you are satisfied with the services that [your counsel] has extended to you?
THE DEFENDANT: Yes, Your Honor. 4/11/91 N.T. at 10.
The prosecution described the plea to the trial court as a "second degree plea, which carries a mandatory life sentence" and stated that the proposed plea agreement had been offered to both the petitioner and his co-defendant, but that the co-defendant was "deferring his decision until tomorrow." The prosecution stated that "[t]here have been no other concessions, offers, or whatnot in this case." 4/11/91 N.T. at 12.
The trial court then confirmed with the prosecution that it had initially believed that there were aggravating circumstances in the case justifying a notice of intent to seek the death penalty. The prosecution confirmed that it had initially notified the petitioner of the government's intent to seek the death penalty on the basis of four aggravating circumstances, which included killing in perpetration of a felony, killing in perpetration of a specified felony involving a controlled substance or drug trafficking, and killing in a manner that created a grave risk of harm to another (the co-defendant). 4/11/91 N.T. at 12-15.
At the conclusion of the hearing, the trial court stated that it was accepting the plea, but that its acceptance was "conditioned" on further review of the record and the presentence investigation report. The trial court stated both that it was accepting the plea, but also that it could decide in the future to "turn the plea bargain down":
THE COURT: Excuse me. All right. Then at this time we do have a plea bargain, Mr. Burke [the petitioner]. I am going to accept your plea today, but its going to be conditioned -- the Court does have discretion on whether it accepts a plea bargain or not, and I want to learn more about you. I don't necessarily want to be here asking you a series of questions, because if I should turn the plea bargain down, I don't want to get into any of the facts and prefer to have a chance to look at the record more closely and your presentence investigation report will give more background on you then I asked you about. Okay?
THE DEFENDANT: Yes, Your Honor.
THE COURT: But we will accept his plea at this time and then we will probably go to sentencing in the very near future as near as next week sometime, understood?
THE DEFENDANT: Yes, Your Honor. 4/11/91 N.T. at 19-20.
2. The Petitioner's Written Plea Statement
The petitioner signed a written statement to accompany his request to enter a guilty plea. The statement is a ten-page form with typewritten questions and handwritten answers. It is dated April 11, 1991, and signed by the petitioner, his counsel, and the district attorney.
The first part of the statement comprises fifty-seven typewritten questions and the petitioner's handwritten responses. The questions are those that would be asked in a plea colloquy. They include whether the petitioner speaks English or has any mental impairment, whether the petitioner understands that he has been charged with the crimes listed later in the form and has pled not guilty and whether he now wishes to plead guilty; whether he understands the nature and elements of the offence, as described later in the petition, and whether he agrees that the recitation of facts in the petition constitutes his version of events; whether he committed the acts in his version of events intentionally, knowingly, or recklessly, with an explanation of the meaning of those terms; whether he understands the maximum permissible sentence that can be imposed for each crime for which he is pleading guilty; and whether the terms of his plea bargain are properly set out in the statement.
In his handwritten responses to the these questions, the petitioner indicated that he spoke English, was not suffering from mental illness, and was not under the influence of alcohol or medication. The petitioner answered affirmatively to all of the questions about his understanding of the charges, the sentence, and the plea, and agreed that the summary of facts set out later in the statement constituted his version of events. He stated that he did not commit the acts set out in the summary intentionally, but that he did them knowingly.
Questions in the statement asked if the petitioner understood his rights: the right to testify on his own behalf and call or compel witnesses and present his own version of the facts; the presumption of innocence and the right to remain silent; the right to be proved guilty beyond a reasonable doubt; the right to a trial by jury, with the right to participate in jury selection and to challenge the jury array, and that any jury verdict must be unanimous; the right to be tried by a judge; the right to file pretrial motions to dismiss charges, challenge evidence, or require the prosecution to produce evidence; the right to confront witnesses against him; the right not to have his silence or lack of witnesses used against him; and the right to appeal or to ask for a new trial or for the dismissal of charges, if he is found guilty. For all of these, the petitioner was asked if he understood that, by pleading guilty, he would be giving up these rights. The petitioner answered affirmatively to all of these questions.
Other questions asked whether anyone had forced the petitioner to plead guilty or promised him anything other than what was set out as the plea agreement. The petitioner answered negatively. The statement also asked whether the petitioner had an opportunity to consult with counsel and whether his attorney had gone over the meaning of the terms in the statement, including the terms "intentionally" and "knowingly." The petitioner answered affirmatively.
The next section of the plea statement asked the petitioner to set out the crimes with which he had been charged and the crimes to which he was pleading guilty. For the crimes to which he was pleading guilty, the statement asked the petitioner to set out the elements of those crimes and the facts in support of those elements. The statement also asked the petitioner to set out the maximum permissible sentence or fines for the crimes to which he was pleading and for the terms of any plea bargain.
The petitioner handwrote his responses to these questions. He stated that he was pleading guilty to "Count 3 only." Count Three of the indictment was for second degree murder in violation of 18 Pa. Cons. Stat. Ann. § 2502(b). The petitioner stated that the elements of that crime are "intentionally, knowingly, recklessly, or negligently causing the death of another while engaged as a principal or accomplice in the perpetration of a felony." The petitioner gave the facts supporting those elements as:
On or about September 26, 1990, I took part in the shooting of Kept Quallis at the 200 block of Chestnut Street in West Reading, Pennsylvania. I did so under circumstances in which I intended to commit a Felony offence at the time.
The statement asked for the maximum sentence and/or fine that could be imposed for the crime to which the petitioner was pleading guilty, if the judge were to reject the plea bargain or if the plea was an "open" one. The handwritten response reads: "Felony 1 - 20 years and $25,000[;] 2nd Degree Murder - life incarceration." Another section of the statement asked for the "precise terms and conditions" of any plea bargain. The handwritten entry for this section states: "2nd degree MURDER[;] Life imprisonment to be imposed on Count Number 3[;] All other charges to be dismissed." In this entry, the number "2" in the phrase "2nd degree MURDER" appears to be written over a fainter number "3."
The petitioner signed his name at the bottom of each of the first nine pages of the ten page statement. On the tenth page, he signed and dated a statement affirming that he had read the document and understood its full meaning and that he was still requesting the Court to allow him to plead guilty to the specified offence. He also attested that the signatures on the document were his.
The petitioner's counsel signed and dated a certification on the last page of the statement. In it, he certified that he had advised the petitioner of the contents and meaning of the statement and that, in counsel's belief, the petitioner understands the statement's meaning and the consequences of his plea. The district attorney assigned to the petitioner's case also signed and dated a certification on the last page of the statement, in which he stated that he had reviewed the plea bargain set out in the statement and that it conformed with his understanding of the agreement.
3. The Condition to the Petitioner's Plea
The petitioner maintains that the guilty plea that he entered on April 11, 1991, was conditional. He contends that, as part of his plea agreement, he was allowed to withdraw his plea if his co-defendant, Kevin Crawford, declined to plead guilty and went to trial. Neither the transcript of the April 11, 1991, hearing nor the petitioner's written statement accompanying the plea reflects any such condition.
The claimed condition, however, is reflected in a subsequent proceeding, held on April 19, 1991, after the petitioner's co-defendant had declined a plea and elected to proceed to trial. Present were the prosecuting attorney and the petitioner's counsel, but not the petitioner. At the proceeding, the trial court noted that it had done something "very unique" and had allowed the petitioner to enter a conditional plea with "reservations": when [petitioner's counsel] Mr. Dorsett came in originally, he said he had a client that wanted to take a plea but it was a conditional thing and the condition was that he wanted to see what his co-defendant would do. And if his co-defendant didn't go through with matters, he had some reservations about letting the plea stand and to at least keep the record open so he could submit to the Court a request to withdraw the original plea. 4/19/91 N.T. at 2. The petitioner's counsel then told the trial court that he had consulted with his client and stated for the record that the petitioner did not want to withdraw his plea. The trial court issued an order stating that "the Court is now being advised that Mr. Burke now wishes to leave his guilty plea stand and understands that there will be no conditions other than those provided by law from this point on with respect to the validity of his guilty plea." The trial court, however, did not conduct a colloquy with the petitioner concerning the decision not to withdraw the plea.
B. The Petitioner Testifies at His Co-Defendant's Trial
The petitioner subsequently testified as a government witness in the trial of his co-defendant, Kevin Crawford, on July 19, 1991.
During direct examination, the petitioner admitted that he and his co-defendant attempted to buy cocaine knowing that he did not have enough money to pay and intending to simply "take it." 7/19/91 N.T. in Commonwealth v. Crawford, No. 3255/90 at 277-79.*fn1 The petitioner admitted that after the seller, Mr. Qualis, joined the petitioner and his cousin in their truck, the petitioner took a gun and, while his cousin was leaning forward to taste the cocaine, pointed the gun at Qualis's head, and the gun "went off." The petitioner testified that he had not intended to shoot, but only intended to coerce Qualis to give them the rest of his cocaine. Id. at 281-83, 285.
The petitioner was asked on direct examination about his plea bargain with the government. The petitioner stated that he had pled guilty to second degree murder and had not yet been sentenced, but that he expected to receive a life sentence. The petitioner stated that there were no "terms" to his plea and no agreement for his testimony against his co-defendant. Id. at 264.
On cross-examination, the petitioner admitted that, as part of his guilty plea, all of the charges against him, including first degree murder, were dropped except for the charge of second degree murder. The petitioner admitted that he expected "mandatory life in jail" but that he also expected to get out in 18 years because of "pardons and things like that . . . [i]f you do your work and go to school and things like that, you know, there's a possibility of getting out." Id. at 311-12. The petitioner testified that his counsel had sent him a letter telling him that the district attorney had said that, if the petitioner testified accurately at his co-defendant's trial, then a letter would be put in the petitioner's file "from the Governor stating cooperation provided." The petitioner said that he believed he could use this letter to attempt to get out of prison in eighteen years. Id. at 312.
On cross-examination, counsel for the co-defendant attempted to get the petitioner to admit that he was concerned about a post-arrest statement by his co-defendant in which the co-defendant quoted the petitioner as saying on the way to buy the drugs that "I ought to kill somebody." Counsel for the co-defendant contended that this statement had lead the petitioner to plead guilty to second degree murder. The petitioner disagreed, saying that he took the plea because he had committed the crime: "I took the second degree after I went over everything and I found out you know, everything that happened, I figured I did it. That is all there is to it." Id. at 313-14. Asked whether he was testifying against his co-defendant because he wanted his co-defendant to be similarly punished, the petitioner said:
I don't want to see him get anything, like I don't want to see myself get anything. But the crime happened, it's that simple. I am not going to be implicated in everything that happened, like what people are trying to do. I'd rather just come out and tell the truth. I don't have nothing to win or lose by sitting up here.
C. The Petitioner Attempts to Withdraw His Guilty Plea at Sentencing and in Post-Sentence Motions
The petitioner's sentencing took place on October 16, 1991, after his co-defendant's trial. At the opening of the hearing, the petitioner told the trial court that he wanted to withdraw his plea and go to trial. The trial court then conducted a colloquy with the petitioner concerning, among other subjects, his participation in robbery and murder of Mr. Qualis. After the colloquy, the prosecution stated that it objected to the petitioner's attempt to withdraw his plea. The trial court, apparently not remembering or not having heard the petitioner state that he wished to withdraw his plea at the beginning of the hearing, expressed surprise at the request and suggested that, had it known of the request to withdraw the plea, it would not have conducted the colloquy with the petitioner:
Because I just questioned this man about a whole series of things here. Now I'm hearing that maybe he'd like to withdraw his plea. Pretty damning information that was given here in questioning him. I thought we were going to sentence. 10/16/91 N.T. at 16; see also id. at 22.
The trial court then asked the petitioner his reasons for requesting to withdraw his plea. The petitioner stated that he had been asking to withdraw his plea "for a few months now," to which his counsel interjected that this was "not true." The petitioner then stated that his only reason for entering the plea agreement was to avoid being tried with his co-defendant. The petitioner said that he believed that, if tried together, his co-defendant would testify (falsely according to the petitioner) that the petitioner had expressed his intention to kill the victim before the shooting. The petitioner said that this evidence of premeditation was the basis for the prosecution's seeking the death penalty:
The only reason I signed that plea back then, Your Honor, was so that my cousin and I wouldn't have a trial at the same time so he would be able to testify to what his statements said. In his statement, he said that on the way down [to meet the victim], I said I was going to kill him a few times, okay, which he was going to testify to that. And I never said it. And that's why the death penalty was being asked in the first place, was because of this statement showing premeditation, which my cousin knew in the first place when I agreed to goin' down that we were goin' down to a girl, not a guy. And in his statement he says I killed him. 10/16/91 N.T. at 18-19.
The prosecution opposed the petitioner's request to withdraw his plea, noting that at his co-defendant's trial, the petitioner had admitted to the shooting and killing of Mr. Qualis. The petitioner then interjected that "I still admit it." The court confirmed that the petitioner had been charged originally with first degree murder with a notice of intent to seek the death penalty and that the petitioner's guilty plea to second degree murder meant that the death penalty could not be applied. 10/16/91 N.T. at 18-21.
The trial court reiterated that it would not have conducted its colloquy with the petitioner had it known that he wished to withdraw his guilty plea, but noted that the petitioner had admitted at his co-defendant's trial that he had shot and killed Mr. Qualis. The court asked the petitioner whether he was "serious" that he wished to withdraw his plea, and the petitioner confirmed that he was. The Court then said that it would "refuse to entertain" the petitioner's motion and, expressing concern that "the system was being toyed with," instructed the district attorney's office to "look in to" the petitioner's testimony at his co-defendant's trial and his statements at the sentencing, saying that he thought the petitioner was trying to "change the facts as he testified [to] against his [co-defendant]. 10/16/91 N.T. at 23. The Court then proceeded to accept the plea bargain and to sentence the petitioner to a term of life imprisonment on the charge of second degree murder. Id.
After his sentencing, the petitioner filed, through counsel, a timely post-sentence motion to withdraw his guilty plea on October 28, 1991. The trial court scheduled a hearing on the motion, but no hearing was apparently ever held, and the motion was never formally decided.
D. The Petitioner's First PCRA Petition
After his sentencing, the petitioner attempted to have his public defender removed as counsel so that he could proceed pro se. The petitioner first made this request in July 1995 and made multiple additional requests over the next several years.
On August 21, 1998, the public defender's office responded to the petitioner's requests and filed a request to withdraw as counsel. The trial court promptly granted the public defender's request. See 10/21/99 PCRA Trial Court Order at 5-6.
The petitioner filed his first PCRA petition, pro se, on December 15, 1998. He was then appointed counsel, who filed an amended PCRA petition on October 6, 1999. The amended petition alleged as grounds for relief that the trial court lacked jurisdiction to enter a conditional plea because such a plea was void under Pennsylvania law, that the petitioner's plea was not voluntary and knowing, and that the petitioner's counsel was ineffective. The claim of ineffectiveness specified sixteen separate ways in which counsel was deficient.
The PCRA trial court filed a notice of intent to dismiss the petition on October 21, 1999, on the ground that the petition was filed outside the one-year statute of limitations. The petitioner's counsel subsequently filed two supplements to the petition arguing that it was timely filed. On December 28, 1999, after a hearing held that day, the PCRA trial court dismissed the petition as untimely. The petitioner filed a motion for reconsideration, which was denied on January 19, 2000. The petitioner filed an appeal and the PCRA trial court issued a memorandum opinion on February 23, 2000. The Pennsylvania Superior Court affirmed the dismissal of the petition as untimely on October 30, 2000, and the Pennsylvania Supreme Court denied allowance to appeal on June 27, 2001.
E. The Petitioner's Second PCRA Petition
The petitioner filed a second PCRA petition, pro se, on July 21, 2001. The petition alleged inadequate assistance of counsel in twenty-six particular ways, challenged the adequacy and knowingness of the plea entered on April 11, 1991, alleged errors by the trial court in accepting that plea and not conducting an adequate colloquy, and challenged the jurisdiction of the trial court to entertain a conditional plea which the petitioner alleged was void under Pennsylvania law.
The petitioner was then appointed new PCRA counsel. Rather than file an amended PCRA petition, the petitioner, through counsel, filed a motion on October 31, 2001, arguing that the petitioner's conviction and sentence had never been made final because the petitioner's post-sentence motion to withdraw his plea, filed ten years before, had never been decided by the trial court and remained pending. The petitioner's counsel also filed a motion to file a supplemental post-sentence motion to withdraw the plea, to provide additional grounds for allowing the withdrawal. The PCRA trial court ordered the PCRA petition deferred and held in abeyance, pending a ruling on the post-sentencing motion, but denied the petitioner's request to file a supplemental motion.
The PCRA trial court held hearings on the petitioner's motion on December 14, 2001, and February 20 and March 15, 2002. The petitioner testified at both the ...