The opinion of the court was delivered by: Surrick,j.
Presently before the Court are the pro se*fn1 application of Petitioner Ishmael B. Taylor for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1) and Petitioner's Objections to the Report and Recommendation of Magistrate Judge Elizabeth Hey (ECF No. 26). Also before the Court is Petitioner's Motion to Appoint Counsel and Request an Evidentiary Hearing. (ECF No. 28.) After a de novo review of the record and for the reasons set forth below, the Objections to the Report and Recommendation will be overruled and Petitioner's Petition for a Writ of Habeas Corpus will be denied.
On March 26, 2001, Petitioner entered a plea of guilty to aggravated assault while driving under the influence, in violation of 75 Pa. Cons. Stat. Ann. § 3735.1, and other lesser charges stemming from a February 2000 automobile accident. (Comm. Resp. 1, ECF No. 8.) On May 15, 2001, Petitioner entered pleas of guilty to several counts of forgery, conspiracy to commit forgery, and other lesser charges related to a separate check fraud scheme. (Id. at 2.)*fn2 The automobile offense is a second-degree felony and carries a maximum sentence of ten years. 75 Pa. Cons. Stat. Ann. § 3735.1(a). Forgery is a third-degree felony and carries a maximum sentence of seven years. 18 Pa. Cons. Stat. Ann. § 4101©. Conspiracy is graded at the level of the most serious offense constituting an object of the conspiracy, which in this case was a third-degree felony. 18 Pa. Cons. Stat. Ann. § 905(a). On May 15, 2001, Petitioner was sentenced to five to ten years in prison on the charge of aggravated assault while driving under the influence, and a total of four to fourteen years' imprisonment on the check fraud and conspiracy charges. (Hr'g Tr. 52, May 5, 2001.) These sentences were to run consecutively to each other for a total term of incarceration of nine to twenty-four years.*fn3 (Id.)
On May 23, 2001, Petitioner filed a motion to withdraw his guilty
plea. (Pet. App. 47A--48A.) Petitioner argued that his admission of
guilt was not voluntary or intelligent as he was not, prior to
pleading, apprised of all of the elements of the offense of aggravated
assault while driving under the influence. (Id.) Specifically
Petitioner contended that a "plain reading of [75 Pa. Cons. Stat. Ann.
§ 3735.1] requires a DUI (driving under the influence) conviction as
an element of the offense" of aggravated assault while driving under
the influence and "since he was not convicted of DUI, any sentence on
Aggravated Assault by Vehicle while DUI is illegal." (Pet. App. 51A.)
Petitioner also argued that the sentence ultimately imposed was
contrary to a plea agreement reached between the parties prior to his
entering a plea. He pointed to a letter sent from prosecutor Patrick
Barry to Petitioner's trial attorney, William Bispels, as evidence of
this agreement. (Id. at 50A.) Petitioner claimed that in deciding
whether or not to plead guilty, he relied upon his understanding of
this letter, which he interpreted as promising "dockets 2002, 2004,
2005, and 2006/00 would run concurrent with 2003/00"*fn4
so that he would "receive
concurrent sentences in all cases." (Pet. App. 50A.) Petitioner argued
that because he did not receive the benefit of the bargain he believed
he was entitled to, he should be allowed to withdraw his guilty plea.
(Id.) Finally, Petitioner argued that Judge Jeffrey L. Schmehl failed
to provide a contemporaneous written statement describing his reasons
for deviating from the sentencing guidelines or using Petitioner's
prior convictions as an "aggravating factor" when calculating the
sentence. (Id. at 51A--53A.) Petitioner contended that Judge Schmehl's
actions violated the precepts laid down by the Superior Court in
Commonwealth v. Gause, 659 A.2d 1014 (1995), mandating such an
explanation in instances of departure from the Pennsylvania Sentencing
Guidelines ("Guidelines"). (Pet. App. 51A--52A.) Petitioner also
contended that his sentence was improper, as Judge Schmehl "[gave]
weight to the nature of the crimes only," and did not consider other
factors such as Petitioner's need for rehabilitation. (Id. at
At the hearing on his motion, however, Petitioner conceded that no promises were made prior to his plea as to how the sentences for the automobile accident and the forgery would combine, or whether Petitioner actually would be sentenced within the Guidelines range. (Hr'g Tr. 20-21, July 25, 2001.)*fn5 He also acknowledged that he was aware that he was entering an
Petitioner appealed this decision to the Superior Court. (Id. at 62A--63A.) The Superior Court determined that during the plea colloquy, Petitioner demonstrated sufficient understanding of the charges and the penalties to which he was exposed by pleading guilty. Taylor, No. 1677 MDA, at *4--5.*fn6 The Superior Court also determined that Petitioner had failed to provide a "concise statement of the reasons relied upon for allowance of appeal" in accordance with Pennsylvania Rule of Appellate Procedure § 2119(f). Taylor, No. 1677 MDA 1001, at *6--7. Under Commonwealth v. Tuladziecki, 702 A.2d 1084, 1085 (Pa. Super. Ct. 1997), such a failure bars appeal of the trial court's discretionary sentencing determination. The Superior Court nevertheless went on to evaluate Petitioner's sentencing claim on the merits and determined that the record indicated that Judge Schmehl clearly followed the applicable rules when deviating from the guidelines. Taylor, No. 1677 MDA 1001, at *7. Accordingly, the Superior Court concluded that the sentence was valid. Id.*fn7
Petitioner next filed a motion in the Pennsylvania Supreme Court requesting the right to appeal the Superior Court's decision. This request was denied on August 13, 2003. (Pet. App. 133A.) Petitioner then filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541--55, on September 16, 2003. (Pet. App. 130.) Petitioner's PCRA claim was dismissed on March 3, 2005. (Id. at 158A, 182A.) In dismissing Petitioner's PCRA petition, the Court of Common Pleas stated that all of Petitioner's claims had previously been litigated and were therefore "not cognizable under Post Conviction Relief Act."*fn8
(Id. at 160A.) Petitioner then filed an appeal from the PCRA court's decision. The dismissal was affirmed by the Superior Court on May 30, 2006. (Id. at 208A.) The Pennsylvania Supreme Court denied Petitioner's requests for allowance of appeal on December 28, 2006. (Id. at 216A.)
On November 18, 2007, Petitioner filed a petition in this Court requesting relief under the federal habeas corpus statute, 28 U.S.C. § 2254. (Pet. App. 228A.) Petitioner argued that his due process rights were violated in the following ways: (1) the trial judge failed to fully inform him of all the elements of the offenses to which he was pleading guilty; (2) the trial judge improperly departed from the Guidelines; and (3) his plea was improperly coerced due to prosecutor's failure to abide by the terms of the plea agreement. (Pet. 1-6, 7, 11.) Petitioner also claimed that his attorneys' failure to correct these problems, either at trial or on appeal, amounted to ineffective assistance of counsel. (Id. at 15, 18.)
The case was assigned to Magistrate Judge Elizabeth Hey for a Report and Recommendation. (ECF No. 2.) On September 26, 2008, Magistrate Judge Hey issued a Report and Recommendation ("R&R") recommending that we dismiss the habeas petition. (ECF No. 22.) In the R&R, she found the following: (1) the record indicates that Petitioner was apprised of the nature of the offense, as well as the consequences of a guilty plea, and he did not contest the facts as presented during the colloquy or present additional evidence challenging the plea's legitimacy; (2) Petitioner's plea was considered voluntary and intelligent (R&R 16); (3) the sentence imposed was in keeping with the terms of the plea agreement, and the plea colloquy dispelled any confusion about the terms of that agreement (id. at 18-19); (4) the sentence imposed was not above the statutory maximum for the offense, and therefore the federal courts will not review the trial judge's discretionary sentencing determination (id. at 21-22); (5) Petitioner's counsel during his guilty plea was not ineffective for failing to individually articulate all elements of the offenses or for failing to challenge the plea agreement as stated by the judge (id. at 25); and (6) Petitioner's counsel on direct appeal was not ineffective for not calling Petitioner's trial counsel to testify about his failure to include the elements of the offenses in the record or object to the judge's articulation of the plea agreement during the colloquy (id. at 25-26). Given these findings, Judge Hey recommended that the habeas petition be denied. (Id.)
Petitioner filed objections to the Report and Recommendation. (Objections, ECF No. 26.) Petitioner articulates five objections: (1) the Magistrate Judge failed to consider the legality of convicting an individual under § 3735.1 when that individual has not been previously convicted under 18 Pa. Cons. Stat. Ann. § 3802 (2007), (Objections 2-6); (2) the Magistrate Judge improperly applied Supreme Court precedent, Henderson v. Morgan, 426 U.S. 637 (1976), in evaluating whether Petitioner's plea was knowing, voluntary, and intelligent (Objections 6--11); (3) the Magistrate Judge improperly applied Supreme Court precedent, Santobello v. New York, 404 U.S. 257 (1971), in evaluating the contents of the letter from Barry to Bispels (Objections 12-15); (4) the sentence imposed by Judge Schmehl violated Petitioner's right to due process because it exceeded the Pennsylvania Sentencing Guidelines (id. at 15-17); and (5) the Magistrate Judge improperly applied Supreme Court precedent, Strickland v. Washington, 466 U.S. 668 (1984), in evaluating the prejudice resulting from counsel's "unprofessional performance" at trial and on direct appeal (Objections 18).
Under 28 U.S.C. § 2254, the federal courts will only entertain a habeas petition from an individual held in state custody if the claims therein have been exhausted in state courts and the petitioner has no remaining avenue of effective redress. 28 U.S.C. § 2254(b). Moreover, a federal court will only grant a habeas petition if the state court decision was "contrary to" or involving "an unreasonable application of" clearly established Supreme Court precedent, or if the state court made an unreasonable determination of fact based upon the proceeding. Id. at §§ 2254(d)(1)-(2); see Schriro v. Landrigan, 550 U.S. 465, 481 (2007); Williams v. Taylor, 529 U.S. 362, 405 (2000). In order to justify habeas relief, a state court decision cannot simply be different than a decision by a lower federal court; the state court holding must either contradict a holding of the Supreme Court on a question of law, or the state court must have arrived at a result different than the Supreme Court when faced with "materially indistinguishable facts." Williams, 529 U.S. at 404-09, 412-13; see also Fischetti v. Johnson, 384 F.3d 140, 148-50 (3d Cir. 2004) (acknowledging that federal appellate court decisions can be enlightening in determining what the law is, but holding that the only legal touchstone relevant in this context is precedent from the Supreme Court); Outten v. Kearney, 464 F.3d 401, 413 (3d Cir. 2006) ("In performing this inquiry, it is not sufficient for [a petitioner] to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, [the petitioner] must demonstrate that Supreme Court precedent requires the contrary outcome.").
The two prongs of analysis articulated in 28 U.S.C. § 2254(b)(1) are distinct. See Williams, 529 U.S. at 406 (holding that to conflate the phrases "contrary to" and "unreasonable application of," the Supreme Court would be violating the cardinal rule of statutory construction mandating courts give meaning to every clause and word in a statute).
The first prong articulates the test for evaluating the state court's deliberation and subsequent determination of the correct legal principle. Moore v. Morton, 225 F.3d 95, 104 (3d Cir. 2001) (citing Williams, 529 U.S at 406). Findings that are "contrary to . . . clearly established federal law" are those determinations of legal principles by state courts that are "diametrically different," "opposite in character," and "mutually opposed" to clearly established precedent. Williams, 529 U.S. at 405; see also Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (applying the deferential standard of review articulated in Williams); Matteo v. Superintendent SCI Albion, 171 F.3d 877, 888, 889-90 (3d Cir. 1999) (same); see also Outten, 464 F.3d at 414 ("[The reviewing court] should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.").
The second prong of § 2254(d)(1) allows habeas relief in instances where the state court correctly articulates the legal principle, but applies it in an unreasonable manner to the facts of the case. Williams, 529 U.S. at 407 (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir 1998)). The Court in Williams acknowledged that "unreasonable" is an ambiguous term but noted the distinction inherent in Congress' word choice; Congress instructed courts to grant habeas relief in instances of unreasonable application of federal law, not incorrect applications. Williams, 529 U.S. at 410--11. Therefore, in order to successfully challenge the trial court's actions under the second prong, the petitioner must not only convince the district court that the decision of the state court was wrong, but that it was "objectively unreasonable." Id. at 409. Improper application of a legal principle notwithstanding, a well-reasoned state court argument defending that application can prevent the federal courts from granting habeas. Fischetti, 430 F.3d at 149; see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (holding that "unreasonable application" involves a substantially higher threshold than "incorrect" application) (quoting Schriro, 550 U.S. at 473).
Federal courts may also issue a writ of habeas corpus when the state court has made an unreasonable determination of fact based upon the evidence presented during the proceeding. 28 U.S.C. § 2254(d)(2); see also Schriro, 550 U.S. at 481. As with determination and application of relevant legal principles, however, federal courts give broad deference to fact-finding by state courts and generally refrain from fact-finding on their own. Abu-Jamal v. Horn, 520 F.3d 272, 282 (3d Cir. 2008) (noting that Congress has expressed a strong preference for factual development during state court proceedings); Washington v. Sobina, 509 F.3d 613, 621 (3d. Cir. 2007) (citing Thompson v. Keohane, 516 U.S. 99, 111--12 (1995) (noting that determinations as to "what happened," "scene-and action-setting questions," and appraisals of witness credibility are factual issues and warrant presumption of correctness under § 2254(e))). If the petitioner fails to produce clear and convincing evidence of unreasonableness the federal courts presume that factual determinations made by state courts are correct. ...