Gary Jackson v. Superintendent Graterford SCI ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3727
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GARY LEE JACKSON,
Appellant
v.
SUPERINTENDENT GRATERFORD SCI;
DISTRICT ATTORNEY MONTGOMERY COUNTY;
ATTORNEY GENERAL PENNSYLVANIA
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-13-cv-07095)
District Judge: Honorable Jeffrey L. Schmehl
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 4, 2017
Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges
(Filed: January 19, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Gary Lee Jackson filed a Petition for Writ of Habeas Corpus challenging his state
court robbery convictions. 28 U.S.C. § 2254. The District Court denied relief, and
Jackson appeals. We will affirm.
I.
On March 17, 2008, Jackson entered an open guilty plea to five counts of
first-degree robbery arising out of bank robberies he committed in Montgomery County,
Pennsylvania on September 9, September 15, October 13, October 20, and November 5,
2007. In each case, Jackson obtained money from the teller after displaying a demand
note indicating that he was armed. Before the plea hearing, Jackson completed a sworn
guilty plea questionnaire in which he acknowledged he understood, inter alia, the
maximum possible sentence and that the judge would not be bound by any agreement
between his defense counsel and the District Attorney. At the hearing, he testified under
oath he was acting of his own free will and no promises or threats by his attorney induced
his guilty plea. He acknowledged each robbery count carried a possible sentence of 10 to
20 years, and that the sentencing judge could impose an aggregate sentence of up to 50 to
100 years’ imprisonment. Because Jackson was eligible for a 25-year mandatory
minimum under Pennsylvania’s three-strikes law, however, his actual sentencing
exposure was significantly higher: a possible sentence of 25 to 50 years per count, with
an aggregate sentence of up to 125 to 250 years. See 42 Pa. Cons. Stat. §§ 9714, 9756.
The judge explained that the sentence ultimately imposed would be up to him alone:
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So at this point, I don’t know what the sentence will be, no one could have
predicted what the sentence will be. Counsel may have given you some
ideas of what he thinks might happen, but the bottom line is, the sentence
will be entirely up to me . . . .
J.A. 237-238. Jackson testified he understood this. The judge then made clear that,
absent exceptional circumstances, he would “permit [Jackson] to withdraw the plea and
[Jackson would] be back in the same position [he] w[as] in before the plea was offered.”
J.A. 239. He explained that “[b]efore sentence is imposed, it’s a fairly liberal test in
considering a withdrawal of the guilty plea.” J.A. 240. Jackson again testified he
understood.
A presentence investigation revealed Jackson had a criminal history spanning
some 26 years, including seven prior bank robbery convictions. Based on his criminal
history, the standard state guidelines sentencing range for each count was 10 to 20 years’
imprisonment, the same exposure Jackson acknowledged in his plea colloquy.
On June 6, 2008—four days before sentencing—the Assistant District Attorney
notified the court he intended to invoke Pennsylvania’s three-strikes enhancement, which,
as noted, would have subjected Jackson to a mandatory sentence of at least 25 years per
count and a potential 250-year maximum sentence. Jackson apparently learned of the
three-strikes enhancement on June 10, when he appeared for sentencing. Although he
expressed second thoughts about his guilty plea, Jackson decided not to withdraw his plea
and elected to proceed to sentencing. The Assistant District Attorney then withdrew the
three-strikes notice during the sentencing hearing.
3
On appeal, Jackson alleges he entered sentencing expecting concurrent sentences
of 7 to 14 years based on defense counsel’s representations earlier in the plea process.
He also alleges he knew nothing of the potential three-strikes enhancement and
mandatory minimum when he pled guilty. According to Jackson, when the judge gave
him the option of withdrawing his plea before sentencing, defense counsel informed
Jackson the Commonwealth would seek a 25-year minimum under Pennsylvania’s three-
strikes law if he went to trial, but would withdraw its invocation of the three-strikes
sentence if he maintained his plea and proceeded to sentencing that day. Jackson chose
not to withdraw his plea and to proceed to sentencing.
At sentencing, the District Attorney argued that concurrent sentences of 10 to 20
years for all five counts would be too lenient given Jackson’s extensive criminal history
and the seriousness of his crimes. After Jackson’s allocution, the judge sentenced him to
an aggregate sentence of 20 to 40 years’ imprisonment.
Shortly thereafter, Jackson wrote to the judge claiming he had pled guilty based on
his belief that his defense counsel and the District Attorney had discussed a more lenient
sentence. The court treated his letter as a motion for reconsideration of sentence, which it
denied. Aided by new counsel, Jackson took a direct appeal, but was unsuccessful.
Jackson then sought relief under Pennsylvania’s Post Conviction Relief Act, 42
Pa. C.S. §§ 9541–9546, asserting, inter alia, that his defense counsel was ineffective and
his plea was invalid. The PCRA court denied his petition, and the Superior Court
affirmed. Addressing Jackson’s claim that his defense counsel misrepresented his likely
sentence, the Superior Court concluded Jackson’s claim failed because, at the plea
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colloquy, he acknowledged his sentencing exposure was 50 to 100 years and testified that
no threats or promises induced his guilty plea. The Superior Court also rejected
Jackson’s claim that his defense counsel was ineffective for not raising the specter of a
three-strikes enhancement because that penalty was only “possible” and was not
ultimately imposed. The Pennsylvania Supreme Court denied allocatur.
Jackson filed a Petition for Writ of Habeas Corpus in the United States District
Court for the Eastern District of Pennsylvania. 28 U.S.C. § 2254. He alleged “his plea
counsel was ineffective for erroneously advising him that he would receive a shorter
sentence than he received and for failing to investigate the sentencing guidelines that
could be used against him resulting in an involuntary plea.” J.A. 16. He also alleged his
“plea was involuntary because the Commonwealth failed to inform him of the
applicability of a mandatory minimum sentence.” Id. The District Court referred the
case to a Magistrate Judge, who recommended the Petition be denied. The District Court
adopted the Magistrate Judge’s recommendation and denied the Petition.
Jackson sought a Certificate of Appealability, which we granted respecting two
issues: whether Jackson was denied effective assistance of counsel through either
(1) misrepresentations that induced him into an invalid plea, or (2) counsel’s failure to
inform him of a possible mandatory minimum, which was later used to coerce him into
entering an invalid plea.
II.
Our review of Jackson’s habeas Petition falls under the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), and we exercise plenary
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review over the District Court’s order denying that Petition, see Simmons v. Beard, 590
F.3d 223, 231 (3d Cir. 2009).1 Under AEDPA’s deferential standard of review, if a claim
is “adjudicated on the merits in State court proceedings,” we can grant relief only if the
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” or “was based on an unreasonable determination of the facts in light
of the evidence presented” in state court. 28 U.S.C. § 2254(d).
A state court’s decision is contrary to clearly established federal law if it “‘applies
a rule that contradicts the governing law set forth’ in Supreme Court precedent, or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different’ from that reached by the
Supreme Court.” Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000) (alteration in original)). A state court’s decision
unreasonably applies clearly established federal law if “there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Jackson argues his defense counsel’s errors denied him the right to effective
assistance of counsel guaranteed by the Sixth Amendment. To prevail on a Sixth
Amendment ineffective assistance claim, a habeas petitioner must show both that counsel
was constitutionally ineffective and that he suffered prejudice as a result. See Strickland
1
The District Court had jurisdiction over Jackson’s petition under 28 U.S.C. § 2254. We
exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253.
6
v. Washington, 466 U.S. 668, 687 (1984). To be constitutionally ineffective, a counsel’s
performance must have fallen “below an objective standard of reasonableness.” Albrecht
v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (citing Strickland, 466 U.S. at 689–92). “[T]o
show prejudice, the petitioner must show that ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694).
A petitioner claiming ineffective assistance of plea counsel must demonstrate “a
reasonable probability that, but for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985). In conducting this analysis, “predictions of the outcome at a possible trial,
where necessary, should be made objectively, without regard for the ‘idiosyncrasies of
the particular decisionmaker,’” id. at 59–60 (quoting Strickland, 466 U.S. at 695), and “a
petitioner must convince the court that [an alternative plea decision] would have been
rational under the circumstances,” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
III.
As noted, we granted review with regard to whether Jackson was denied effective
assistance of counsel in either of two ways: (1) whether counsel induced Jackson into an
unknowing and involuntary plea by misrepresenting the sentence he would receive upon
pleading guilty; and (2) whether counsel was ineffective for failing to raise the possibility
of a mandatory minimum, and later using that risk to coerce Jackson into an unknowing
or involuntary plea.
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A.
We begin with Jackson’s allegation that his defense counsel was constitutionally
ineffective by misrepresenting that the District Attorney had agreed to a relatively lenient
sentence. The Superior Court reasonably concluded Jackson’s own statements during his
plea colloquy undermined that claim. As the Superior Court observed:
During [Jackson’s] guilty plea colloquy, [he] specifically testified that he
understood his rights, the nature and elements of the charges that were filed
against him, and the consequences of his plea. [Jackson] also testified that
he was voluntarily pleading guilty to the charges, that he was pleading
guilty because he committed the crimes, and that it was in his best interest
to plead guilty. Further, throughout the colloquy, [he] consistently testified
that he was aware of the fact that he was entering an open guilty plea, that
he could receive a sentence of up to 50 to 100 years in prison, and that his
actual sentence could very well be “considerable.”
J.A. 424–425 (Superior Court Opinion) (citations omitted). Indeed, Jackson affirmed he
was not pleading guilty based on any promises or threats from defense counsel. He
acknowledged his sentence was unpredictable and would be up to the sentencing judge
alone.
Jackson points to his correspondence with his defense counsel, claiming it shows
he had been promised a more lenient sentence. That correspondence demonstrates only
Jackson hoped for a more lenient sentence, not that the Commonwealth had agreed to
seek a sentence of no more than 7–14 years’ imprisonment, or that a particular sentencing
range had been guaranteed. On the contrary, it demonstrates he knew his sentence was
uncertain and recognized it could be significantly lengthy. 2
2
For example, following Jackson’s interview with the sentencing investigator, he sent a
letter dated June 2, 2008, reporting that the investigator “painted a rather bleak picture,”
8
Whether or not defense counsel, at some early point, created an expectation that
the District Attorney would recommend a lenient sentence, Jackson acknowledged in his
plea questionnaire, plea colloquy, and letters that the judge could impose an aggregate
sentence as long as 50 to 100 years, that the sentence imposed would be entirely up to the
judge, and that no one could predict what that sentence would be. The Superior Court
reasonably concluded that Jackson’s own testimony undermined his claim that his plea
was induced by counsel’s misrepresentations. That conclusion was not contrary to, or an
unreasonable application of, Supreme Court precedent.3
J.A. 443, and acknowledging that his sentence was ultimately up to the sentencing judge,
see id. (“I know that it is within Judge Nicholas’[s] power to depart from whatever
guidelines I may fall within and I will respectfully refer to that in my letter to him.”).
Jackson’s letter dated March 24, 2008, indicates he hoped for a relatively lenient
sentence, but knew his sentence was uncertain. See J.A. 430 (“I hope you can secure a 4
year minimum sentence(s) for me.”); id. (“It is my sincere hope that you can petition the
D.A. for a more treatment oriented sentence as opposed to a lengthy and more severe
incarceration.”); id. (“I have some scenarios that I would like for you to consider
presenting to the D.A. . . ., and I hope you agree that it will [not] do any harm to run these
by the D.A. . . . .”); J.A. 431 (“Please let me know what you think about these and any
chance of securing these terms for sentencing?”). His letter sent in mid-April reveals an
understanding the District Attorney had not yet agreed to seek a certain sentence. See J.A.
436 (“I hope that this [reference from my Union President] can be utilized to help sway
the District Attorney into accepting the aforementioned sentencing scenario [of a
sentence between 48 and 118 months].”). Jackson may have hoped a relatively lenient
sentence was possible, but his letters reflect an understanding his sentence was still
undetermined and a recognition his sentence could be harsh.
3
In the alternative, Jackson urges us to remand this matter for an evidentiary hearing. In
a habeas proceeding, we review a district court’s decision whether to hold an evidentiary
hearing for abuse of discretion. See Morris v. Beard, 633 F.3d 185, 193 (3d Cir. 2011).
Because we agree that Jackson’s petition should be denied, the District Court acted
within its sound discretion in declining to hold an evidentiary hearing. See Schriro v.
Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.”).
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B.
We turn next to Jackson’s allegation that his defense counsel was constitutionally
ineffective by failing to inform him he could face a mandatory minimum sentence, and
then later using that risk to coerce him into an unknowing or involuntary plea. The
Superior Court rejected this claim, reasoning that “counsel could not have been
ineffective for ‘failing to advise’ Appellant of the ‘possible’ application of the mandatory
minimum sentence.” J.A. 428. Assuming for the purposes of this appeal that the
Superior Court unreasonably applied clearly established Supreme Court precedent, we
will review this claim de novo. See Brady v. United States, 397 U.S. 742, 748 (1970)
(“Waivers of constitutional rights not only must be voluntary but must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences.”); Boykin v. Alabama, 395 U.S. 238, 244 n.7 (1969) (advising trial courts
to ensure “the defendant understands . . . the permissible range of sentences”); Jamison v.
Klem, 544 F.3d 266, 274-77 (3d Cir. 2008) (holding Boykin and its progeny clearly
established requirement that a defendant be informed of “permissible range of sentences,”
including mandatory minimum, before pleading guilty); Vickers v. Superintendent
Graterford SCI, 858 F.3d 841, 850 (2017) (“This conclusion, however, does not end our
inquiry or require that the Great Writ be granted. Instead, . . . it merely forfeits the
AEDPA deference to which the state court’s denial of relief would otherwise be entitled
and dictates that we review [the petitioner’s] Strickland claim de novo.”).
The state court record makes clear that, during the guilty plea colloquy, no one
informed Jackson of a potential mandatory minimum sentence and defense counsel
10
understated Jackson’s maximum possible sentence. Citing Hill, Jackson asserts he
“would not have pled guilty if trial counsel had informed him of the potential for a
recidivist sentencing enhancement.” Appellant’s Br. at 29. Even assuming Jackson’s
plea was not knowing, voluntary, and intelligent when entered, Jackson has not carried
his burden of showing prejudice. See Padilla, 559 U.S. at 372 (“[A] petitioner must
convince the court that [an alternative plea decision] would have been rational under the
circumstances.”). Significantly, the trial judge cured any deficiency by affording Jackson
the opportunity to withdraw his plea after he learned the Commonwealth was seeking the
mandatory minimum. Cf. Jamison, 544 F.3d at 279 (holding unknowing plea not cured
by the defendant’s failure to withdraw plea where the judge did not afford him adequate
opportunity to withdraw plea). In light of the judge’s offer of the opportunity to
withdraw his plea, Jackson’s decision to maintain his plea and avoid facing the
mandatory minimum penalty at trial belies his bald assertion that he would not have pled
guilty had he known of the potential for a three-strikes enhancement. Accordingly, he
cannot make out the prejudice required to prevail on this claim.
Jackson’s claim that his defense counsel used the Commonwealth’s invocation of
the three-strikes sentence to coerce him not to withdraw his guilty plea is likewise
without merit. Indeed, defense counsel would have been ineffective had he not informed
Jackson the Commonwealth was seeking a three-strikes sentence. Moreover, the
Commonwealth’s offer to withdraw the three-strikes sentence if Jackson maintained his
plea was permissible plea negotiation, not coercion. See Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978) (“While confronting a defendant with the risk of more severe
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punishment clearly may have a discouraging effect on the defendant’s assertion of his
trial rights, the imposition of these difficult choices is an inevitable—and permissible—
attribute of any legitimate system which tolerates and encourages the negotiation of
pleas.” (internal quotation marks, alteration, and citation omitted)). Defense counsel did
not impermissibly coerce Jackson by conveying this legitimate offer from the
Commonwealth.
IV.
For the foregoing reasons, we will affirm the District Court’s order denying
Jackson’s Petition for Writ of Habeas Corpus.
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