Tome v. Stickman , 167 F. App'x 320 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-16-2006
Tome v. Stickman
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1286
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"Tome v. Stickman" (2006). 2006 Decisions. Paper 1574.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-1286
CHRISTOPHER M. TOME,
Appellant
v.
WILLIAM S. STICKMAN;
THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 03-cv-04174)
District Judge: Hon. Legrome D. Davis
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 12, 2005
BEFORE: SLOVITER, SMITH and STAPLETON,
Circuit Judges
(Opinion Filed: February 16, 2006)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Christopher Tome (“Tome”) appeals the denial of his petition for habeas
corpus relief. The District Court denied Tome’s petition on the grounds that he had failed
to exhaust his claims in state court and that those claims were now procedurally defaulted.
A motions panel of our court granted a certificate of appealability with respect to Tome’s
claim that he was denied effective assistance of counsel in connection with the entry of
his guilty plea. We will affirm the decision of the District Court.
Tome pled guilty in the Lancaster County Court of Common Pleas to numerous
offenses, including armed robbery, burglary, theft of motor vehicles and escape. The
court sentenced Tome to fifteen to thirty years of imprisonment, consistent with the terms
of a negotiated plea agreement.
After filing a notice of appeal on Tome’s behalf, Tome’s trial counsel sought and
was granted leave to withdraw his representation because Tome desired to raise claims of
ineffective assistance of trial counsel. However, following the appointment of new
counsel, Tome withdrew and discontinued his appeal. The Superior Court marked the
appeal discontinued.
2
Tome then filed a pro se petition under Pennsylvania’s Post Conviction Relief Act,
42 Pa. Cons. Stat. § 9541 et seq. (“PCRA”). The PCRA court appointed new counsel for
Tome. Tome’s PCRA counsel saw no merit in Tome’s claims, filed a “no merit” letter
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and requested
permission to withdraw as counsel. When the PCRA court then notified Tome of its
intention to dismiss the PCRA petition without a hearing, Tome filed “Defendant’s Pro-
Se Response to PCRA Court’s Notice of Intent to Dismiss PCRA Petition.” In that
document, Tome raised, for the first time in state court, the following claim:
Defendant was denied effective assistance of PCRA counsel, in that PCRA
counsel failed to file an amended PCRA Petition, in that Defendant was
denied his Constitutional Right to effective assistance of trial counsel, in
that trial counsel induced Defendant’s guilty plea, in that Defendant was
mentally incompetent to enter a knowing[] and intelligent guilty plea[.]
Def.’s Resp. Notice Intent Dismiss at 5, Commonwealth v. Tome, Nos. 882-2084 (Pa. Ct.
Comm. Pl. May 10, 2001). The Common Pleas Court dismissed Tome’s petition without
a hearing.
Tome filed a pro se appeal of the denial of his PCRA petition to the Pennsylvania
Superior Court. In that appeal, Tome raised, inter alia, the following issue for review:
Whether the lower court erred in failing to find appellant was denied
effective assistance of PCRA counsel, in that PCRA counsel failed to
advance the claim of trial counsel’s ineffective assistance, in that trial
counsel induced appellant’s guilty plea, in that appellant was mentally
incompetent to enter a voluntary, intelligent and knowing guilty plea?
App. at 218.
3
The Superior Court denied Tome’s appeal. With respect to Tome’s claim that he
was denied effective assistance of PCRA counsel due to PCRA counsel’s failure to raise
ineffective assistance of trial counsel, the Superior Court followed Commonwealth v.
Laszczynski, 715 A.2d 1185 (Pa. Super. 1988), and ruled that Tome had no meritorious
ineffective assistance of trial counsel claim for PCRA counsel to assert because the
Pennsylvania statute governing ineffectiveness challenges to guilty pleas required a
showing of actual innocence and Tome did not assert his innocence.
Tome subsequently filed a pro se application for reargument with the Superior
Court and, after that was dismissed, a pro se petition for allowance of appeal with the
Pennsylvania Supreme Court, which was denied on March 28, 2003.
Tome then filed a pro se petition for habeas corpus in the District Court, raising,
inter alia, a claim that he was denied his federal right to effective assistance of trial
counsel during his plea proceedings. The District Court ruled that Tome’s federal
ineffective assistance of trial counsel claim was never exhausted in the state appellate
courts. Because such a claim could now be raised only in a second PCRA petition and
such a petition would be barred by the PCRA’s one-year statute of limitations, the District
Court ruled that the claim was procedurally defaulted. The Court concluded that Tome
had not shown cause or a fundamental miscarriage of justice to excuse the default and,
consequently, the Court could not review Tome’s claim. A motions panel of our Court
granted a certificate of appealability as to Tome’s claim that he was denied effective
4
assistance of trial counsel during the plea proceedings, which included the related issue of
whether that claim is procedurally defaulted.
The District Court had jurisdiction over Tome’s petition for habeas corpus
pursuant to 28 U.S.C. § 2254. We have jurisdiction to review the District Court’s order
with respect to those issues encompassed by the certificate of appealability under 28
U.S.C. §§ 1291 & 2253. See Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004).
“We exercise plenary review over the District Court’s legal conclusions in a habeas
proceeding, including its resolution of legal questions arising from application of the
procedural default doctrine.” Villot v. Varner, 373 F.3d 327, 331 (3d Cir. 2004) (citations
omitted).
Tome seeks to raise a claim that he was deprived of his Sixth Amendment right to
effective assistance of counsel when his trial court attorney “induced” him to enter a
guilty plea, even though Tome was mentally incapable of entering a knowing, intelligent
and voluntary plea at that time. He did not raise this claim in the Pennsylvania courts. He
did, however, raise a related claim before the Superior Court in his PCRA proceedings
that he was “denied effective assistance of PCRA counsel, in that PCRA counsel failed to
advance the claim of trial counsel’s ineffective assistance.” App. at 218. We agree with
the District Court that Tome did not present this claim to the Superior Court as a federal
claim.
“A state prisoner must exhaust his state court remedies before a federal court may
5
grant him habeas relief.” Lambert, 387 F.3d at 231. The exhaustion requirement gives
states “the opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotations omitted). “To provide the
State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each
appropriate state court . . . , thereby alerting that court to the federal nature of the claim.”
Id. Fair presentation “requires that the claim brought in federal court be the substantial
equivalent of that presented to the state courts. Both the legal theory and the facts
underpinning the federal claim must have been presented to the state courts, and the same
method of legal analysis must be available to the state court as will be employed in the
federal court.” Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992)
(citations omitted).
“When a claim is not exhausted because it has not been ‘fairly presented’ to the
state courts, but state procedural rules bar the applicant from seeking further relief in state
courts, the exhaustion requirement is satisfied because there is ‘an absence of available
State corrective process.’” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)
(quoting 28 U.S.C. § 2254(b)). “In such cases, however, applicants are considered to
have procedurally defaulted their claims and federal courts may not consider the merits of
such claims unless the applicant establishes ‘cause and prejudice’ or a ‘fundamental
miscarriage of justice’ to excuse his or her default.” Id.
In Baldwin, the Supreme Court held that a petitioner who had argued to the state
6
courts that his “trial counsel’s conduct violated several provisions of the Federal
Constitution,” but “did not say that his separate appellate ‘ineffective assistance’ claim
violated federal law,” had not properly alerted the state courts to the federal nature of his
claim of ineffective assistance of appellate counsel. 541 U.S. at 30. The Court noted that
the state post-conviction petition did not “explicitly say that the words ‘ineffective
assistance of appellate counsel’ refer to a federal claim.” Id. at 33. Further, the fact that
the petition referred “to provisions of the Federal Constitution in respect to other claims”
did not alert the state courts to the federal nature of the appellate ineffectiveness claim.
Id.
Baldwin requires a conclusion that Tome failed to alert the state courts to the
federal nature of his ineffective assistance of trial counsel claim. Tome presented to the
state courts a claim that he was denied effective assistance of PCRA counsel when his
PCRA counsel failed to assert that Tome was denied effective assistance of trial counsel
because his trial counsel “induced” Tome’s guilty plea, even though Tome was mentally
incompetent to enter a voluntary, knowing and intelligent guilty plea. This claim
necessarily includes two underlying claims: the first underlying claim is that his trial
counsel was ineffective; the second is that his guilty plea was involuntary. Before the
Common Pleas Court, Tome referred to the first underlying claim as a denial of his
“Constitutional” right to the effective assistance of trial counsel. On appeal to the
Superior Court, Tome only referred to “trial counsel’s ineffective assistance.”
7
The claim Tome raised in the Superior Court was not identified as a federal claim.
Indeed, there is no federal right to effective assistance of post-conviction counsel.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases establish that the right to
appointed counsel extends to the first appeal of right, and no further.”). Even looking
past the fact that Tome presented his trial counsel ineffectiveness claim layered within an
overarching state law claim, Tome failed to ground the first underlying claim for
ineffective assistance of trial counsel in federal law and, understandably, the Superior
Court decided it on state law grounds. Read generously, Tome perhaps grounded his
deepest underlying claim, his challenge to the voluntariness of his guilty plea, in part in
federal law through citation of Morris v. Slappy, 461 U.S. 1 (1983), and United States v.
Cole, 813 F.2d 43 (3d Cir. 1987). Under Baldwin, that is not sufficient to alert state
courts to the federal nature of his claim for ineffective assistance of trial counsel. In
Baldwin, even though the petitioner had squarely grounded an underlying claim for
ineffective assistance of trial counsel in federal law, the Supreme Court ruled that the
petitioner had failed to alert the state courts to the federal nature of an overarching claim
for ineffective assistance of appellate counsel. 541 U.S. at 32. Consequently, we cannot
say that Tome alerted the state courts to the federal nature of his claim for ineffective
assistance of trial counsel, when only his underlying claim of an involuntary guilty plea
referenced federal law.
Baldwin left open the possibility that if a petitioner presents a state claim that state
8
courts evaluate under a standard identical to the federal standard, then presentation of that
claim might be sufficient to meet § 2254(b)’s exhaustion requirements. 541 U.S. at 33-34
(expressly declining to consider argument that where state standard for ineffective
assistance of counsel is identical to federal standard, a petitioner need not indicate a
claim’s federal nature). It is generally true that the “test for counsel ineffectiveness is the
same under both the Pennsylvania and Federal Constitutions: it is the performance and
prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).” Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004).
However, the Pennsylvania Superior Court decided Tome’s case at a time when it
interpreted a Pennsylvania statute, 42 Pa. Cons. Stat. § 9543(a)(2)(iii), to impose an
innocence requirement for claims of ineffective assistance of counsel relating to guilty
pleas. Compare Commonwealth v. Laszczynski, 715 A.2d 1185, 1187-88 (Pa. Super.
1998) (analyzing plea-related ineffectiveness claim under 42 Pa. Cons. Stat. §
9543(a)(2)(iii), which requires innocence, because statute governs pleas of guilt and
claims of unlawful inducement in connection with a plea of guilt), with Commonwealth
ex rel. Dadario v. Goldberg, 773 A.2d 126, 130 (Pa. 2001) (holding that claims of
ineffective assistance of counsel arising from plea bargaining process are cognizable
under PCRA’s ineffectiveness subsection, 42 Pa. Cons. Stat. § 9543(a)(2)(ii), which does
not require innocence); Commonwealth v. Lynch, 820 A.2d 728, 730 (Pa. Super. 2003)
(same); see also Villot, 373 F.3d at 333 n.5 (discussing change in Pennsylvania law). In
9
Villot, we held that the innocence requirement of § 9543(a)(2)(iii) is a substantive
requirement of Pennsylvania law. 373 F.3d at 334. Under federal law, by contrast, to
satisfy the prejudice prong of Strickland attendant to ineffective assistance of counsel
claims, a defendant who has pleaded guilty need only show “that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Thus, Tome’s
federal claim for ineffective assistance of trial counsel is not the “substantial equivalent
of that presented to the state courts.” Evans, 959 F.2d at 1231; cf. Jackson v. Edwards,
404 F.3d 612, 621 (2d Cir. 2005) (holding that petitioner “exhausted his federal claim
because, in this case, the legal standards for his federal and state claims were so similar
that by presenting his state claim, he also presented his federal claim”). Thus, Tome did
not “fairly present” his federal ineffective assistance of trial counsel claim to the state
courts.
Tome is now time barred from filing a second PCRA petition presenting such a
claim. See 42 Pa. Cons. Stat. § 9545(b) (setting a one-year jurisdictional statute of
limitations for PCRA actions). Consequently, the exhaustion requirement is deemed
satisfied because there is “an absence of available State corrective process,” but Tome has
procedurally defaulted his claim and we may not consider its merits unless he establishes
“cause and prejudice” or a “fundamental miscarriage of justice” to excuse his default on
his claim of ineffective assistance of trial counsel in connection with the taking of his
10
plea. McCandless, 172 F.3d at 260. Tome suggests that because he received ineffective
assistance of appellate counsel, he has “cause” to excuse the procedural default on his
claim of ineffective assistance of trial counsel in connection with the taking of his plea.
But for ineffective assistance of prior counsel to serve as “cause” to excuse a procedural
default, habeas petitioners must first exhaust the ineffective assistance claim itself in state
court, or show cause and prejudice for that failure to exhaust. Edwards v. Carpenter, 529
U.S. 446, 451-52 (2000); Murray v. Carrier, 477 U.S. 478, 489 (1986). Tome failed to
raise this federal claim of ineffective assistance of appellate counsel in state court, and
that claim is therefore unexhausted (or deemed exhausted, but procedurally defaulted).
Nothing prevented Tome from raising such a claim in his PCRA proceedings and Tome
does not assert any basis to excuse his failure to assert such a claim.1
The District Court’s order will be affirmed.
1
While Tome did assert in the Superior Court ineffective assistance of appellate
counsel for failing to file a motion to withdraw his plea, that claim is distinct from the
ineffective assistance of counsel claim Tome identifies as providing “cause” for the
claims he here asserts.
11