United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
Henry Heredia, an inmate at the state correctional institution in Laurel Highlands, Somerset, Pennsylvania, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges his convictions in the Court of Common Pleas of the Seventeenth Judicial District of Pennsylvania, Union County Branch, for among other offenses, aggravated assault, fleeing or attempting to elude police, and driving under the influence. After a jury trial, Petitioner was sentenced in May 2008 to fifty-eight to 126 months' imprisonment, later amended to 57 to 126 months.
The petition presents the following three claims. First, trial counsel was ineffective in failing to properly advise Petitioner on a plea offer Petitioner rejected, with Petitioner going to trial instead. Second, trial counsel was ineffective in failing to use police reports and video evidence of the police chase to cross-examine Pennsylvania state troopers who testified at trial. Third, trial counsel was ineffective in failing to object to the erroneous description in the verdict slip of the charge of aggravated assault in Count 2. Petitioner asserts the description was part of the jury instructions and that the description made the instructions on this offense erroneous.
II. Standard of Review
When a petitioner seeks relief on federal claims adjudicated against him by the state courts, habeas review of the state courts' resolution of the claims is governed by 28 U.S.C. § 2254(d)(1) and (d)(2). Under subsection (d)(1), we may grant the writ if the state courts' adjudication of the claims was contrary to clearly established Supreme Court precedent or an unreasonable application of that precedent. "[A] state court ruling is considered an unreasonable application' if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply." McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009)(cited cases omitted). "The unreasonable application test is an objective one - a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005)(cited cases omitted). If "fairminded jurists could disagree' on the correctness of the state court's decision, " habeas relief cannot be granted. Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)(quoted case omitted).
Under subsection (d)(2), we may grant the writ if the state courts' adjudication of the claims "resulted in a decision that was based on a unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "A state court decision is based on an unreasonable determination of the facts' only if the state court's factual findings are objectively unreasonable in light of the evidence presented in the state-court proceeding.'" Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)(quoted case omitted). State-court fact finding "is presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
A. The Claim that Trial Counsel Was Ineffective in Failing to Properly Advise Petitioner on a Plea Offer
Defendants have a Sixth Amendment right to counsel during the plea-bargaining process, Lafler v. Cooper, U.S., 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012), and thus they have the right to effective assistance of counsel during plea negotiations. Id., 132 S.Ct. at 1384. To establish ineffective assistance of counsel when a defendant rejects a plea offer and is found guilty after a trial, the defendant must show two things. First, counsel's performance was deficient. Id. at ___, 132 S.Ct. at 1384. Second, the defendant was prejudiced by counsel's performance; specifically, the defendant "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id. at 132 S.Ct. at 1385. "[T]he defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." Id. at 132 S.Ct. at 1386.
In the instant case, Petitioner was charged in an "amended/modified information" with thirteen offenses occurring on August 15, 2007. The first nine offenses are: (1) in Count 1 aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(3), a felony of the second degree, for attempting to cause bodily injury to a police officer by striking the officer's car during a pursuit; (2) in Count 2 aggravated assault under 18 Pa. Con. Stat. Ann. § 2702(a)(6), a felony of the second degree, for attempting by physical menace to put a police officer in fear of imminent bodily injury by striking the officer's car during a pursuit; (3) in Count 3 recklessly endangering another person under 18 Pa. Con. Stat. Ann. § 2705, a misdemeanor of the second degree, by striking a police officer's car while he was operating it; (4) in Count 4 recklessly endangering another person under 18 Pa. Con. Stat. Ann. § 2705, a misdemeanor of the second degree, by striking a police officer's car while he was operating it; (5) in Count 5 fleeing or attempting to elude police under 75 Pa. Con. Stat. Ann. § 3733(a), a felony of the third degree; (6) in Count 6 (a DUI offense) driving after imbibing a sufficient amount of alcohol that he was rendered incapable of driving safely under 75 Pa. Con. Stat. Ann. § 3802(a)(1), a misdemeanor; (7) in Count 7 (a DUI offense) driving after imbibing a sufficient amount of alcohol that his blood alcohol content (BAC) was at least.16% or higher within two hours after operating the vehicle under 75 Pa. Con. Stat. Ann. § 3802(c), a misdemeanor; (8) in Count 8 disorderly conduct by using obscene language or a gesture under 18 Pa. Con. Stat. Ann. § 5503(a)(3) while at the hospital, a misdemeanor of the third degree; and (9) in Count 9 disorderly conduct by using obscene language or a gesture under 18 Pa. Con. Stat. Ann. § 5503(a)(3) while at the hospital, a misdemeanor of the third degree. Petitioner was also charged with the following four summary offenses: (1) in Count 10 disregarding traffic lanes; in Count 11 failing to signal a lane change; in Count 12 reckless driving; and in Count 13 driving without a license.
The jury acquitted Petitioner of Count 1 and found him guilty of Counts 2 through 5, 8, and 9. The court found Petitioner guilty of Counts 6 and 7 and of the summary offenses in Counts 10 through 13.
Petitioner's claim that his trial counsel failed to properly advise him about the plea offer from the prosecutor was litigated in postconviction proceedings under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Con. Stat. Ann. §§ 9541-9546. Petitioner and his trial counsel testified about the proposed plea bargain at the PCRA hearing.
The proposed plea bargain was discussed immediately before the start of the trial. (Doc. 15-1, ECF p. 124, PCRA hearing transcript). Petitioner testified that he and the prosecutor discussed a plea bargain back and forth; trial counsel was present but did not say anything. ( Id. ). Petitioner recalled that the prosecutor had offered him a deal to plead guilty to the charge of fleeing and eluding and a "couple of lesser charges." Petitioner was not sure which of the lesser charges were included in the deal. ( Id., ECF p. 125). Petitioner told the prosecutor that he did not see any point in accepting the deal that had been offered because if trial counsel did his job at trial, that would be the worst he would be ...