United States District Court, W.D. Pennsylvania
Pupo Lenihan, Magistrate Judge
Bissoon United States District Judge
case has been referred to United States Magistrate Lisa Pupo
Lenihan for pretrial proceedings in accordance with the
Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B),
and Local Rule of Civil Procedure 72. On May 18, 2018, the
Magistrate Judge issued a Report (Doc. 33) recommending that
Edward Tucker, Jr.'s 2254-habeas petition be dismissed;
and that a certificate of appealability be denied. Service of
the Report and Recommendation was made, and Petitioner has
filed Objections. See Docs. 33 & 34.
Petitioner's exhaustion of issues two and four of the
initial matter, Judge Lenihan correctly observed that
Petitioner failed to exhaust issues two and four in his
Petition (Doc. 3). Petitioner does not contest that this is
the first instance in which he has raised issue four-that the
trial court failed to adequately define his appellate rights.
issue two, Petitioner claims that trial counsel's failure
to advise him of his right to plead guilty but mentally ill
amounted to constitutionally-ineffective assistance of
counsel. Doc. 3, at 8. It is well settled that
“[a]bsent exceptional circumstances, a federal court
may not determine the merits of a habeas corpus petition
until the petitioner has exhausted all means of available
relief under state law.” Alston v. Gilmore,
No. 15-2671, 2018 U.S. Dist. LEXIS 88322, at *13 (E.D. Pa.
May 22, 2018) (citing O'Sullivan v. Boerckel,
526 U.S. 838, 839 (1999)). To adequately exhaust a claim,
Petitioner must fairly present the claim at issue to the
state court. Duncan v. Henry, 513 U.S. 364, 365,
(1995). This entails giving the state courts “a full
and fair opportunity to resolve federal constitutional claims
before those claims are presented to the federal
courts” by “invoking one complete round of the
State's established appellate review process.”
O'Sullivan, 526 U.S. at 845. Pennsylvania's
appellate process includes seeking discretionary review from
the Supreme Court of Pennsylvania-which Petitioner sought-
before seeking federal relief. Simply seeking relief from the
Supreme Court of Pennsylvania, however, is insufficient to
preserve Petitioner's claims for federal review.
Id., at 844. Petitioner must raise each claim to the
Supreme Court of Pennsylvania before the exhaustion
requirement for federal review is satisfied. Id., at
failed to raise issues two or four to the Supreme Court of
Pennsylvania. Doc. 6-1, at 87-112. This claim is not
mentioned in his Petition, nor his supporting memorandum on
appeal to the Supreme Court of Pennsylvania. Id.
Rather, Petitioner raised a similar claim-i.e.,
Petitioner's mental deficiencies rendered him unable to
enter a knowing and voluntary plea. While the Court
acknowledges the similarity of these two issues, they remain
separate and distinct. Petitioner presented the legal
theory-ineffective assistance of counsel-to the Supreme Court
of Pennsylvania, but failed to proffer the theory that trial
counsel failed to advise him of his right to plead guilty but
mentally ill. The Court of Appeals for the Third Circuit has
held that “[b]oth the legal theory and the facts
supporting a federal claim must have been submitted to the
state courts.” Lesko v. Owens, 881 F.2d 44, 50
(3d Cir. 1989).
failure to raise this claim constitutes procedural default.
O'Sullivan, 119 S.Ct. at 1734. Further,
Petitioner cannot resurrect his procedurally defaulted claim
by pointing to counsel's failure to raise it. Attorney
error in post-conviction proceedings, subsequent to the
initial-review collateral proceeding, does not excuse a
procedurally defaulted claim. Martinez v. Ryan, 132
S.Ct. 1309, 1319-20 (2012). Therefore, because Petitioner
failed to raise issues two and four to the Supreme Court of
Pennsylvania, the Court finds that both claims are
procedurally defaulted, and the Court may not review them.
The Court adopts Section II.B.4 of the Report and Recommend
concerning Petitioner's claim exhaustion, as supplemented
Petitioner's remaining claims of ineffective assistance
the Court agrees with Judge Lenihan's reasoning regarding
Petitioner's surviving claims. Petitioner's remaining
claims boil down to whether Petitioner's trial
counsel's deficiencies rendered Petitioner's plea
involuntary, and whether the Court failed to rectify these
deficiencies during Petitioner's plea hearing.
habeas review, the Court is tasked with determining whether
the state courts' adjudication was an unreasonable
application of United States Supreme Court precedent.
“[A] state court adjudication fails the
‘unreasonable application' test only if the state
court identified the correct governing legal rule but
unreasonably applied it to the particular case or if the
state court either unreasonably extended a legal principle
from Supreme Court precedent to a new context in which it
should not apply or where it unreasonably refused to extend
such a principle to a new context in which it should
apply.'” Greene v. Palakovich, 606 F.3d
85, 104 n. 14 (3d Cir. 2010). Regarding whether the state
courts identified the correct legal rule, the state courts
clearly were aware that Boykin v. Alabama, 395 U.S.
329, 243-44 (1969), and its progeny, prohibit courts from
accepting guilty pleas without first determining, on the
record, that the guilty plea was the result of a knowing and
intelligent act done with sufficient awareness of the
relevant circumstances and likely consequences. See also
Brady v. United States, 397 U.S. 742, 749 (1970);
Henderson v. U.S., 426 U.S. 637 (1976).
state courts also identified and applied Strickland v.
Washington,  466 U.S. 668, 684 (1984) - the standard
for ineffective assistance of counsel under the Sixth
Amendment. The critical issue before the Court is whether the
state courts' determination that Petitioner entered a
knowing and voluntary plea, despite the evidence that
Petitioner's counsel told him prior to his plea hearing
that he would receive a significantly lesser sentence, was an
unreasonable application of Boykin and its progeny,
as well as Strickland. The Court will first analyze
whether the state courts unreasonably applied Boykin
to the facts of this case.
similar facts, the Court of Appeals for the Third Circuit
found that satisfying Boykin requires trial courts
to ensure that defendants understand the minimum sentence
that could be imposed. Jamison v. Klem, 544 F.3d
266, 275 (3d Cir. 2008). In Jamison, defendant
pleaded guilty without fully understanding the minimum
sentence that the trial court could impose against him.
Id. Although the prosecutor informed defendant at
the change of plea hearing “that the Commonwealth would
be filing a ‘mandatory in the drug case, '”
the Court of Appeals found that defendant did not have
sufficient notice of the minimum sentence that could be
imposed. Id., at 276-79. ...