United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Mohammad Sohail Saleem ("Saleem") filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging a conviction and sentence imposed in
the Court of Common Pleas of Lebanon County, Pennsylvania.
(Doc. 1). Saleem subsequently filed an amendment to the
petition. (Doc. 17). For the reasons discussed below, the
Court will deny the petition.
Factual and Procedural Background
2014, Saleem was charged with various sexually-related
offenses in the Court of Common Pleas of Lebanon County.
See Commonwealth v. Saleem, CP-38-CR-0001112-2014,
CP-38-CR-0000565-2014 (Lebanon County Ct. Com. Pl.). On April
21, 2015, Saleem pled guilty to indecent assault and
harassment involving two victims who were employees of a
small business he owned. See Commonwealth v. Saleem,
2017 WL1223851, *1 (Pa. Super. 2017). Saleem was subsequently
found to be a sexually violent predator pursuant to 42 PA.
C.S.A. § 9792. Id. On June 3, 2015, a
sentencing hearing was held. Id. At sentencing,
following a discussion regarding possible deportation
proceedings, the trial court sentenced Saleem to an aggregate
prison term of twenty-one (21) months to ten (10) years.
Id. Saleem thereafter filed two post-sentence
motions claiming ineffective assistance of counsel, which the
trial court denied without prejudice to Saleem seeking relief
under the Post Conviction Relief Act ("PCRA"), 42
PA. CONS. STAT. §§ 9541-46. Id.
September 1, 2015, Saleem filed a counseled PCRA petition
regarding the voluntariness of his plea. (Doc. 13-18). Saleem
argued that his plea was predicated upon a promise that he
would be deported to Pakistan. (Id. at pp. 5-8).
When Saleem was not deported, he argued that he was deprived
of the benefit of his plea bargain. Id. Saleem
further argued that his guilty plea counsel was ineffective
for leading him to believe that deportation would occur.
Id. The PCRA court held a hearing and ultimately
denied the PCRA petition, finding that immediate deportation
was not a part of the plea agreement. (Doc. 13-19; Doc.
13-23). Rather, as part of the plea agreement, the District
Attorney's office agreed that it would have no objection
to deportation and would not take any action to prevent
deportation. (Doc. 13-19, p. 42; Doc. 13-23, p. 10). The PCRA
court further noted that Saleem's attorney communicated
to him that there was no guarantee that he would be deported.
(Doc. 13-19, pp. 42-43; Doc. 13-23, pp. 10-11). Specifically,
Saleem's attorney wrote a letter to him explaining that,
"There is no way to determine how much of your sentence
you will have to serve before you are deported. It is
possible that you would have to serve your entire sentence,
possibly 50 years or more, before, you are deported."
(Doc. 13-19, p. 42; Doc. 13-23, p. 10).
filed an appeal to the Pennsylvania Superior Court.
Commonwealth v. Saleem, 2017 WL1223851. On March 28,
2017, the Pennsylvania Superior Court affirmed the PCRA
court's denial of the petition. Id. Saleem did
not file a petition for allowance of appeal with the
Pennsylvania Supreme Court.
April 6, 2017, Saleem filed a second PCRA petition. (Doc.
13-28). He filed an amended petition on May 18, 2017. (Doc.
13-29). On June 16, 2017, the PCRA court denied the petition
as untimely. (Doc. 13-32). Saleem filed a notice of appeal.
On May 1, 2018, the Superior Court found that Saleem did not
meet his burden of proving that his untimely PCRA petition
fit within any of the three exceptions to the PCRA's
time-bar, and affirmed the order of the PCRA court dismissing
the petition as untimely. Commonwealth v. Saleem,
2018 WL 2016409 (Pa. Super. 2018).
10, 2018, Saleem filed a petition for writ of habeas corpus
challenging his status as a sexually violent predator.
See Commonwealth v. Saleem, 2019 WL 1754670, at *1
(Pa. Super. 2019). On September 4, 2018, the PCRA court
treated his petition for habeas corpus as a PCRA petition,
and dismissed it as untimely. See Id. Saleem filed a
notice of appeal. See Id. On April 17, 2019, the
Pennsylvania Superior Court found that the PCRA court
correctly treated Saleem's habeas corpus petition as a
PCRA petition, and correctly dismissed it as untimely.
26, 2017, Saleem filed the instant federal habeas petition.
(Doc. 1). He filed an amendment to the petition on November
9, 2017. (Doc. 17).
Standards of Review
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). A habeas
corpus petition pursuant to § 2254 is the proper
mechanism for a prisoner to challenge the "fact or
duration" of his confinement. Preiser v.
Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973). "[I]t is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions." Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Rather, federal habeas review is restricted to claims based
"on the ground that [petitioner] is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a);
Estelle, 502 U.S. at 68.
corpus relief cannot be granted unless all available state
remedies have been exhausted, or there is an absence of
available state corrective process, or circumstances exist
that render such process ineffective to protect the rights of
the applicant. See 28 U.S.C. § 2254(b)(1). The
exhaustion requirement is grounded on principles of comity in
order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to
state convictions. See Werts v. Vaughn, 228 F.3d
178, 192 (3d Cir. 2000).
prisoner exhausts state remedies by giving the "state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process."
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court
system requires that the petitioner demonstrate that the
claims in question have been "fairly presented to the
state courts." Castille v. Peoples, 489 U.S.
346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To
"fairly present" a claim, a petitioner must present
its "factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is
being asserted." McCandless v. Vaughn, 172 F.3d
255, 261 (3d Cir. 1999); see also Nara v. Frank, 488
F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is
fairly presented when a petitioner presents the same factual
and legal basis for the claim to the state courts). While the
petitioner need not cite "book and verse" of the
federal Constitution, Picard v. Connor, 404 U.S.
270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must
"give the State 'the opportunity to pass upon and
correct' alleged violations of its prisoners' federal
rights" before presenting those claims here, Duncan
v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d
865 (1995) (quoting Picard, 404 U.S. at 275, 92
court has determined that the exhaustion requirement is met
and, therefore, that review on the merits of the issues
presented in a habeas petition is warranted, the scope of
that review is set forth in 28 U.S.C. § 2254(d). Section
2254(d) provides, in pertinent part, that an application for
a writ of habeas corpus premised on a claim previously
adjudicated on the merits in state court shall not be granted
(1) [the decision] was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) [the decision] was based on an unreasonable determination
of the facts in light of the evidence presented in the State
28 U.S.C. § 2254(d). To establish that the decision was
contrary to federal law "it is not sufficient for the
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." Matteo v.
Superintendent, 171 F.3d 877, 888 (3d Cir. 1999).
Similarly, a federal court will only find a state court
decision to be an unreasonable application of federal law if
the decision, "evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified
under existing Supreme Court precedent." Id.
under 28 U.S.C. § 2254(e)(1), a federal court is
required to presume that a state court's findings of fact
are correct. A petitioner may only rebut this presumption
with clear and convincing evidence of the state court's
error. Miller-El v. Cockrell, 537 U.S. 322, 341
(2003) (stating that the clear and convincing standard in
§ 2254(e)(1) applies to factual issues, whereas the
unreasonable application standard of § 2254(d)(2)
applies to factual decisions); Matteo, 171 F.3d at
888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.
2005). This presumption of correctness applies to both
explicit and implicit findings of fact. Campbell v.
Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently,
a habeas petitioner "must clear a high hurdle before a
federal court will set aside any of the state court's
factual findings." Mastracchio v. Vose,
27'A F.3d 590, 597-98 (1st Cir. 2001).
the "unreasonable application" prong of paragraph
(1), a factual determination should be adjudged
"unreasonable" under paragraph (2) only if the
court finds that a rational jurist could not reach the same
finding on the basis of the evidence in the record. 28 U.S.C.
§ 2254(d)(2); Porter v. Horn, 276 F.Supp.2d
278, 296 (E.D. Pa. 2003); see also Torres v. Prunty,
223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v.
Virginia, 443 U.S. 307, 316 (1979). "This provision
essentially requires the district court to step into the
shoes of an appellate tribunal, examining the record below to
ascertain whether sufficient evidence existed to support the
findings of fact material to the conviction."
Breighner v. Chesney, 301 F.Supp.2d 354, 364 (M.D.
Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and
(f)). Mere disagreement with an inferential
leap or credibility judgment of the state court is
insufficient to permit relief. Porter, 276 F.Supp.2d
at 296; see also Williams v. Taylor, 529 U.S. 362,
408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16
(1st Cir. 2001). Only when the finding lacks evidentiary
support in the state court record or is plainly controverted
by evidence therein should the federal habeas court overturn
a state court's factual determination. Porter,
276 F.Supp.2d at 296; see also Williams, 529 U.S. at
instant petition, Saleem sets forth the following grounds for
relief: (1) trial counsel was ineffective for advising Saleem
to enter a guilty plea; (2) trial counsel was ineffective for
unlawfully inducing Saleem to enter a guilty plea; (3) trial
counsel was ineffective for failing to ensure that the
factual basis of the plea was presented; (4) the trial judge
was biased; and, (5) the Commonwealth committed a
Bradviolation. (Doc. 1, pp. 5- 10; Doc. 17).
Ineffective Assistance of Counsel Claims
Sixth Amendment right to counsel is the right to the
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). This right to effective assistance of
counsel also extends to the first appeal. Lewis v.
Johnson, 359 F.3d 646, 656 (3d Cir. 2004). In
Strickland, the Supreme Court articulated a
two-prong test in assessing whether a petitioner has been
denied the effective assistance of counsel.
Strickland, 466 U.S. at 687-88. A petitioner must
demonstrate: (1) that his counsel's representation
"fell below an objective standard of
reasonableness" and (2) that such defective performance
caused the petitioner prejudice. See id.
evaluating the first prong of the Strickland test,
the court must be "highly deferential" toward
counsel's conduct. Id. at 689. There is a strong
presumption that counsel's conduct fell within the wide
range of reasonable professional assistance. Id.
("It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable."). "Strickland and its
progeny make clear that counsel's strategic choices will
not be second-guessed by post-hoc determinations that a
different trial strategy would have fared better."
Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006)
(citing Strickland, 446 U.S. at 689). Notably,
courts will not deem counsel ineffective for failing to raise
a meritless argument. Strickland, 466 U.S. at 691;
United States v. Saunders, 165 F.3d 248, 253 (3d
satisfy the prejudice prong, the petitioner must show that
there is a reasonable probability that, but for counsel's
deficient performance, the outcome of the proceeding would
have been different. See Strickland, 466 U.S. at
694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. Moreover, the petitioner must show that he or
she had a reasonable likelihood of prevailing on the motion
at issue, and having prevailed on the motion, it was also
reasonably likely that the result of the trial would have
been different. See Thomas v. Varner, 428 F.3d 491,
502 (3d Cir. 2005).
prevail on a claim for ineffective assistance of counsel, a
petitioner must satisfy both prongs of the
Strickland test. Carpenter v. Vaughn, 296
F.3d 138, 149 (3d Cir. 2002). The inquiry may begin with
either the deficient performance or prejudice prong, and the
court is not required to consider the second prong of the
test if the petitioner is unable to satisfy the first one.
Strickland, 466 U.S. at 697.
Purported Coerced and Unlawfully Induced Guilty
first two grounds for relief, Saleem alleges that trial
counsel was ineffective for advising him to enter a guilty
plea, and for unlawfully inducing him to enter a guilty plea.
(Doc. 1, pp. 5, 7). The Court has thoroughly reviewed the
trial record and state court decisions with respect to these
claims. Saleem's statements during the April 21, 2015
plea hearing clearly illustrate that he knowingly and
voluntarily entered into the plea agreement and specifically
accepted the terms of the agreement. At the plea hearing, the
following exchange took place between the trial court and
Q. [The Court] [l]n your case on Action Number 2014-565
Counts One, Two, Five, and Six will be dismissed. You're
pleading guilty, therefore, to Counts Three and Four which
are the two Counts of indecent assault. That's an open
plea so you can receive any sentence up to the maximum
sentence which the law permits. The Commonwealth has no
objection to immediate deportation in your particular
A. [Saleem] Yes.
Q. On Action Number 2014-1112 you're entering an open
plea to the single charge set forth on that information. Do
you understand that plea agreement?
Q. Is that your agreement?
Q. Okay. You understand the consequences of potential