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Andrews v. Wingard

United States District Court, E.D. Pennsylvania

April 18, 2017

EARL ANDREWS, Petitioner,
TREVOR WINGARD, et al., Respondents.


          Rufe, J.

         Before the Court are Petitioner Earl Andrews's pro se objections to the Report and Recommendation (“R&R”) filed by Magistrate Judge Henry S. Perkin. For the reasons that follow, the Court will overrule the objections and deny the Petition for a writ of habeas corpus.


         Petitioner is incarcerated in a state correctional institution, having pleaded guilty to three counts of robbery and one count of unauthorized use of an automobile in the Philadelphia County Court of Common Pleas.[1] The trial court originally sentenced Petitioner to an aggregate sentence of five to 11 ½ years of incarceration and 4 ½ years of probation.[2] At sentencing, the court granted Petitioner's request that he report to begin serving his sentence 30 days later. Petitioner was instructed to turn himself in at 11:00 a.m. on June 8, 2009, and was warned that he would suffer consequences if he failed to appear. Following his sentencing, Petitioner, through counsel, filed a motion to withdraw his guilty plea, which the trial court denied two days later.

         On June 8, 2009, Petitioner failed to report to begin serving his sentence. Because his attorney was on vacation at the time, the trial court appointed another attorney to represent him. The court resentenced Petitioner in absentia to 11 ½ to 23 years of incarceration and issued bench warrants for his arrest.[3] The judge stated that he was resentencing Petitioner because he had violated the terms of his probation by failing to turn himself in.[4]

         In September 2009, Petitioner was arrested for an unrelated crime in Pittsburgh, and was returned to Philadelphia to begin serving his sentence for the convictions in this matter. When asked by the court at a subsequent bench warrant hearing why he failed to report, Petitioner explained that he had just gotten married and “[his] heart got the best of [him].”[5] The judge held Petitioner in contempt of court on each conviction and sentenced him to an additional three to six months of imprisonment.[6] Because he was a fugitive for months following his conviction, Petitioner did not appeal the underlying conviction or sentence. He did, however, appeal the contempt sentence imposed on each conviction, arguing that the sentences violated double jeopardy and that he was entitled to a jury trial on them. The Pennsylvania Superior Court denied the appeal.

         On February 16, 2010, Petitioner filed a pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”).[7] He then filed a counseled amended petition, as well as a pro se supplement to the amended petition. His petition alleged that trial counsel was ineffective for (1) failing to affirm that Petitioner was mentally capable of entering a knowing and voluntary guilty plea; (2) allowing Petitioner to accept a turn-in date without making sure he was capable of abiding by it; (3) failing to request a continuance of sentencing to determine whether Petitioner's failure to appear was due to his mental condition; (4) failing to advise Petitioner that, despite the motion to withdraw his plea, he would still have to report to begin his sentence; and (5) filing an inadequate motion for withdrawal of Petitioner's guilty plea.[8] The PCRA court dismissed the petition, and the Superior Court denied Petitioner's appeal of that decision.

         Petitioner filed a timely habeas petition in this Court on October 6, 2014, claiming that his due process rights were violated when he was resentenced in absentia, that his amended sentence was unconstitutional because it violated Pennsylvania statutes, that his resentencing violated the double jeopardy clause, and that the procedural default of his claims should be excused because his counsel was ineffective. Upon review of the record and pleadings in the case, the Magistrate Judge issued the R&R, recommending that Petitioner's claims be denied without a hearing, to which Petitioner filed objections.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this Petition. Under the AEDPA, “a district court shall entertain an application for writ of habeas corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”[9] Where, as here, the petition is referred to a magistrate judge for a report and recommendation, a district court conducts a de novo review of “those portions of the report or specified proposed findings or recommendations to which objection is made, ” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”[10]

         In order to raise a federal habeas claim, a petitioner must first exhaust all available state-law remedies.[11] A habeas petitioner's claims must have been “fairly presented” to state courts; that is, the claims raised in this Court must be the “substantial equivalent of the claims presented to the state courts.”[12] Claims that are not exhausted will become procedurally defaulted, foreclosing federal habeas review on the merits unless the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”[13] “The ‘cause' necessary to excuse the exhaustion requirement ‘must result from circumstances that are external to the petitioner, something that cannot fairly be attributed to him.'”[14] The United States Supreme Court has emphasized that the fundamental miscarriage of justice exception applies to only “a severely confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].'”[15]

         Petitioner's objections in part concern ineffective assistance of counsel. Counsel is presumed to have acted reasonably and to have been effective unless a petitioner can demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the petitioner.[16] Counsel's performance is only deficient when it is “outside the wide range of professionally competent assistance.”[17] Prejudice occurs upon a showing that there is a reasonable possibility that but for counsel's deficient performance, the outcome of the underlying proceeding would have been different.[18]


         Petitioner raises two objections to the R&R: (1) the Magistrate Judge should have concluded that his trial counsel's ineffectiveness constituted exceptional circumstances to excuse the procedural default of his claims; and (2) the Magistrate Judge “misrepresent[ed] Petitioner's claims regarding sentencing, ” and failed to address whether the “blatant departure” from statutory rules at his resentencing violated his due process rights.[19] The Court will discuss each objection in turn.

         A. Whether Ineffectiveness of Trial Counsel Constitutes Exceptional Circumstances to Excuse Petitioner's Default

         Petitioner first claims that the Magistrate Judge erred by concluding that exceptional circumstances did not exist to excuse the procedural default of his claims. He argues that exceptional circumstances existed because trial counsel was constitutionally ineffective when she allowed him to plead guilty despite knowing that such a plea would not be knowingly made, and when she chose to vacation when Petitioner was to begin serving his sentence.

         First, with regard to the contention that his attorney was ineffective for allowing him to plead guilty despite knowing of his incompetence, Petitioner raised this argument in his PCRA petition, and the Superior Court found that it was belied by the record and otherwise meritless. When the state court has squarely addressed the issue of counsel's representation, this Court faces a double layer of deference.[20] In these cases, “the pivotal question is whether the state court's application of the Strickland standard was unreasonable, which is different from asking whether defense counsel's performance fell below Strickland's standard.”[21]

         The Superior Court, in denying Petitioner's PCRA appeal, determined that despite a prior diagnosis for paranoid schizophrenia, the record as a whole did not support Petitioner's contention. The Superior Court cited the transcript of Petitioner's change of plea hearing, which included statements by Petitioner's counsel that, based on her review of medical records including a recent competency evaluation, she had no reason to doubt Petitioner's competency.[22]The transcript also included comments by the trial court that Petitioner appeared to be “fine” and “articulate.”[23] Furthermore, at the bench warrant hearing in March 2010, which followed Petitioner's arrest in Pittsburgh, Petitioner did not cite mental health issues as a reason for his failure to appear on his turn-in date.[24] Based on the foregoing, the Superior Court concluded that the record did not support a finding that trial counsel provided constitutionally ineffective assistance related to Petitioner's guilty plea. The Court concludes that the Superior Court's analysis was a reasonable application of federal law.

         As to Petitioner's argument that his counsel was ineffective for being on vacation the day he was due to begin serving his sentence, the Court need not consider this claim as it was raised for the first time in his objections.[25] In any event, the argument is without merit because Petitioner has not shown that, absent his attorney's failure to appear the day he was due to report, the result of that proceeding would have been different. The acts or omissions of counsel did not change the fact that Petitioner himself unquestionably failed to report to begin serving his sentence. Because Petitioner has offered no new evidence to demonstrate cause or prejudice for his default, or to show that “it is more likely than not that no reasonable juror would have convicted” him, the Court will overrule this objection.[26]

         B. Whether Petitioner's Resentencing In Absentia ...

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