Charles Thomas Lewis v. Philip L. Johnson, Superintendent, Sci-Pittsburgh Mike Fisher, Attorney General of Pennsylvania
Docket: 01-1036
Court: Court of Appeals for the Third Circuit; March 9, 2004; Federal Appellate Court
Charles Thomas Lewis appealed the district court's denial of his habeas corpus application, arguing that his Sixth Amendment right to effective assistance of counsel was violated due to his trial counsel's failure to file a notice of appeal. Lewis claimed this failure constituted constitutionally-deficient performance under Strickland v. Washington and Roe v. Flores-Ortega, depriving him of his first appeal right. The United States Court of Appeals for the Third Circuit reversed the district court's order and remanded the case with instructions to issue a writ, conditioned on the Commonwealth reinstating Lewis's right to an appeal.
Lewis is currently serving a 30 to 60 year sentence for multiple robbery counts and other offenses, following a guilty plea on January 27, 1987, and sentencing on March 3, 1987. He was represented by court-appointed attorney John Elash. After sentencing, the trial judge informed Lewis of his right to file post-trial motions within 10 days. Lewis filed a pro se motion challenging his guilty plea on March 12, 1987, but the trial court denied his attorney's subsequent motion to withdraw the plea without ruling on Lewis's pro se motion, which remains pending.
Lewis later filed a post-conviction petition under Pennsylvania law on February 1, 1988, raising issues of ineffective assistance of counsel, including the failure to withdraw the guilty plea when the plea agreement was not accepted and the failure to appeal the denial of the motion to withdraw the plea. His post-conviction petition was denied after an evidentiary hearing.
Lewis appealed to the Superior Court regarding the denial of his right to a direct appeal. The court referenced its decision in Commonwealth v. Dockins, affirming that trial counsel cannot be deemed ineffective for not filing an appeal if not requested. The court upheld the denial of Lewis's post-conviction relief petition, noting that trial counsel had discussed potential appeal grounds, which were determined to lack merit. The only indication of Lewis's desire to appeal came from his testimony at the PCHA hearing, which the court found unsupported by the record, favoring trial counsel's credibility.
Lewis subsequently filed a second post-conviction relief petition under the PCRA, contesting the validity of his guilty plea and alleging ineffective assistance of counsel for not appealing the judgment. After an evidentiary hearing, the petition was denied, and the Superior Court reaffirmed that Lewis's claim was meritless, referencing Dockins. Lewis's subsequent request to appeal this decision to the Pennsylvania Supreme Court was denied.
After exhausting state remedies, Lewis filed a pro se federal habeas corpus petition, alleging that the Commonwealth courts' decisions contradicted established federal law. He claimed trial counsel was ineffective for failing to appeal the denial of his motion to withdraw his guilty plea. The district court referred the matter to a magistrate judge, who only addressed the voluntariness of Lewis's guilty plea and concluded that the state courts' findings were consistent with established law. Lewis objected, asserting that the magistrate did not consider his claim regarding trial counsel's failure to file a direct appeal and did not assess the evidence regarding his appeal request.
Lewis contended that his counsel unconstitutionally abandoned his case during critical judicial proceedings by failing to file an appeal. He referenced Supreme Court cases, specifically Flores-Ortega and Douglas v. California, to bolster his objections. The district court adopted the magistrate judge's recommendations and denied Lewis's petition for federal habeas relief, prompting him to file a timely notice of appeal. The court granted Lewis a certificate of appealability to evaluate whether his trial counsel was ineffective for not filing a direct appeal.
The jurisdiction to review the district court's denial of Lewis's habeas petition stems from 28 U.S.C. 1291, 2253. Since the district court relied solely on the state court record without holding an evidentiary hearing, the reviewing court's examination of the decision is plenary. Lewis's federal habeas petition, filed in 2000, is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a writ of habeas corpus cannot be granted for claims adjudicated on the merits in state court unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable factual determination.
The effectiveness of Lewis's trial counsel regarding the failure to file a notice of appeal is at issue, with Lewis citing the Flores-Ortega ruling, which established a constitutional obligation for attorneys to inform defendants of their appellate rights. Since Flores-Ortega was decided after Lewis's conviction, the appellate court certified questions concerning the application of the state court's ruling and the status of Flores-Ortega as clearly established federal law. The inquiry begins with determining how Flores-Ortega's holdings fit within the parameters of clearly established federal law.
Under the AEDPA, a petitioner must demonstrate that they seek to apply a rule of law that was clearly established when their state-court conviction became final. The Supreme Court in Williams clarified that the nonretroactivity principle from Teague v. Lane has a limited connection to AEDPA's provisions, indicating that what qualifies as an "old rule" under Teague will also be considered "clearly established Federal law." The nonretroactivity principle bars federal courts from granting habeas relief based on new rules announced after a conviction's finality, emphasizing the need for restraint in applying new federal jurisprudence retroactively.
Teague outlines a three-step analysis to evaluate nonretroactivity: determining when the conviction became final, assessing whether the case established a new rule, and considering if any exceptions to nonretroactivity apply. In the current case, Lewis's conviction predated the ruling in Flores-Ortega, and neither exception applies, directing the focus to whether the duty to consult established in Flores-Ortega was based on clearly established precedent at the time of Lewis's conviction.
Flores-Ortega determined that counsel may be deficient for failing to file a notice of appeal without explicit instruction from the defendant, applying the Strickland two-part test for ineffective assistance. The Court recognized that counsel has a duty to consult with the defendant regarding an appeal when there are reasons to believe that a rational defendant would want to appeal or if the defendant communicated an interest in appealing. The term "consult" encompasses advising the defendant on the pros and cons of an appeal and making reasonable efforts to ascertain the defendant's wishes, with all relevant information considered in the assessment of counsel's performance.
Strickland's prejudice prong requires a defendant to demonstrate a reasonable probability that, but for counsel's failure to consult on an appeal, they would have timely appealed. The parties agree that Strickland's reasonableness test was established law in 1987 and governs this case. The primary dispute arises over the second holding in Flores-Ortega regarding the duty to consult. Lewis argues that this holding clarified existing law, while the Commonwealth claims it imposes a new burden on states and is barred by Teague from retroactive application. The Commonwealth offers minimal analysis, relying solely on language from the Court's decision indicating it announced a new rule, which lacks persuasive weight. The Teague analysis assesses whether a post-final adjudication rule can be retroactively applied without violating comity and finality principles. The Strickland rule is generally applicable, requiring an objective reasonableness evaluation of counsel's conduct based on the specific case facts. This standard is sufficiently clear to address most ineffective-assistance claims. The Commonwealth's argument that Flores-Ortega's duty to consult constitutes a new rule is unsubstantiated, as Strickland's case-by-case evaluation does not negate its clarity or established status. Justice Kennedy's concurrence supports that a broadly applicable rule need not yield new results in specific applications. The conclusion is that Flores-Ortega did not create a new rule but merely clarified the established Strickland standard as it applied to the facts of that case.
The Strickland decision establishes an objective reasonableness standard for criminal defense attorneys under the Sixth Amendment, identifying essential duties such as advocating for the defendant, consulting on important decisions, and keeping the defendant informed. The decision to appeal is classified as an important decision that requires informed counsel, as a lay defendant may lack the necessary understanding of potential grounds for appeal and associated risks. The Sixth Amendment guarantees effective assistance of counsel during the first appeal as of right, with the Strickland standard applicable to appellate representation. Supreme Court cases have recognized that defendants may not recognize trial errors without the expertise of trained counsel, who must aid in evaluating the record, researching law, and formulating arguments. While defendants retain the ultimate authority over fundamental decisions, counsel has a constitutional obligation to advise on these matters to facilitate informed choices, including the right to appeal. The ruling in Flores-Ortega affirmed the obligation to consult on appellate rights, aligning with the American Bar Association (ABA) standards established in 1980, which predate Strickland. The Supreme Court has acknowledged these norms as guiding but not definitive in determining reasonableness. Consequently, it is determined that the Flores-Ortega decision did not create a new requirement for states but rather clarified existing obligations, allowing for retroactive application to Lewis's claim of ineffective assistance of counsel.
The duty to consult established in Flores-Ortega is deemed an 'old' rule for retroactivity and clearly established law, leading to an evaluation of Lewis's claim regarding whether the state courts' application of Commonwealth v. Dockins was 'contrary to' or involved an 'unreasonable application' of federal law as defined by Strickland and Flores-Ortega. Justice O'Connor clarified that 'contrary to' signifies a state court's decision that directly contradicts Supreme Court law or arrives at a different conclusion on materially indistinguishable facts. The 'unreasonable application' clause indicates a situation where a state court correctly identifies a legal rule but applies it unreasonably to specific facts, which must be judged objectively; mere incorrectness does not suffice for federal habeas relief. Factual findings from state courts are presumed correct unless rebutted by clear and convincing evidence.
In Lewis's case, the Pennsylvania courts ruled on his post-conviction petitions based on Dockins, which stipulates that trial counsel cannot be deemed ineffective if the defendant did not request an appeal. The key issue under Dockins is whether the defendant instructed counsel to file an appeal. Lewis's petitions were denied because the PCHA court, supported by the Superior Court, found that Lewis failed to contact his attorney within the appeal period, resulting in a waiver of his right to appeal. Dockins operates as a strict per se rule that assumes counsel acts reasonably when no appeal is filed if the defendant has not communicated a desire for one. This rule is inconsistent with Flores-Ortega, which invalidated a similar rule (the 'Stearns rule') that required counsel to file appeals unless explicitly instructed otherwise, asserting that counsel must reasonably discuss appeal options with the defendant. This inconsistency mandates vacatur and remand.
The Dockins rule asserts that counsel is presumed to act reasonably and cannot be deemed ineffective solely based on a defendant's silence regarding an appeal, contrasting with the Stearns rule. The effectiveness of counsel is evaluated under the Strickland standard, which prohibits imposing rigid rules that could enhance representation, as the Sixth Amendment's goal is to ensure a fair trial rather than improve legal quality. The Pennsylvania courts misapplied Dockins in addressing Lewis's ineffectiveness claims. The Commonwealth initially argued that state courts found Lewis's counsel consulted him about appellate rights but later retreated from this claim, acknowledging no material findings were made regarding such consultations after Lewis’s guilty plea and sentencing. Typically, unresolved factual issues would require remanding for an evidentiary hearing; however, given the significant time lapse of 16 years, this may not be productive. The issue of trial counsel's representation was adequately litigated during two evidentiary hearings in state court. Citing Flores-Ortega, counsel must inform defendants about appeal rights if there are reasonable grounds for appeal or if the defendant has expressed interest in appealing. In Lewis's case, who pleaded guilty, the Supreme Court indicated the plea's nature is a significant factor in determining counsel's obligations concerning appeals, though not conclusive. Despite the absence of a plea agreement, Lewis is entitled to federal habeas relief due to counsel's failure to advise him of his right to appeal following the denial of his motion to withdraw his guilty plea. Evidence from state court hearings indicated that counsel, Elash, did not communicate with Lewis after sentencing or the denial of his post-trial motion, despite Lewis's interest in challenging his conviction. Elash only recalled a brief conversation post-sentencing, where he suggested that viable appellate rights may not exist, and he lacked records of any attempts Lewis made to contact him afterward.
Elash’s awareness of Lewis’s pro se motion to withdraw his guilty plea is questionable, but the motion was filed on the trial docket, indicating that Elash should have been informed. Elash stated he only filed the withdrawal motion after Lewis directed him to do so, which suggested Lewis's potential interest in appealing his conviction. Elash's testimony and the late filing of the motion—28 days overdue—demonstrate a lack of attention to Lewis's interests, resulting in Lewis forfeiting his appeal rights. This was compounded by contemporaneous evidence of Lewis's efforts to assert his appellate rights, including a letter to the court on May 3, 1987, expressing confusion over his case and requesting an extension. Lewis also reported Elash to the Pennsylvania State Bar Association for misconduct due to Elash's lack of communication.
The trial judge denied the motion on April 16, 1987, and Lewis’s appeal period expired on May 16, 1987. The court found Elash's conduct to be objectively unreasonable, lacking any strategic justification for not following up with Lewis post-sentencing or after the withdrawal motion was denied. The ultimate decision to appeal lies with the defendant, and Elash could not ignore Lewis's clear desire to challenge his sentence and guilty plea. The court concluded that Lewis demonstrated a reasonable probability that he would have appealed had it not been for Elash’s deficient performance. Furthermore, Lewis identified nonfrivolous claims for appeal, including ineffective assistance of counsel based on Elash's failure to object to sentencing terms and to timely withdraw the guilty plea. The district court's order denying Lewis’s habeas corpus petition was consequently reversed.
The district court is instructed to issue a writ of habeas corpus for Lewis, contingent upon the Commonwealth reinstating his right of first appeal within 45 days of the court's order. The PCHA, which Lewis may have petitioned in 1987, was repealed and replaced by the Post-Conviction Relief Act (PCRA). Lewis's claims were also presented in the PCHA petition he filed on his own. The appeal in Banks III is ongoing in the Supreme Court. The district court did not address Lewis's Flores-Ortega challenge, nor the Teague issue, prompting the parties to provide additional briefs on the matter. The classification of whether Flores-Ortega is considered an "old" rule for retroactivity is a novel issue in this circuit, with the Fifth Circuit previously ruling it as a "new" rule. The analysis under Teague begins with identifying the rule relevant to the habeas claim. Under Strickland, to prove ineffective assistance of counsel, a defendant must show that counsel's performance was both objectively unreasonable and prejudicial. The Flores-Ortega case highlighted a disagreement among justices about the obligation of counsel to consult clients regarding appeals. However, consensus exists that the third holding of Flores-Ortega regarding the prejudice standard is established law, requiring defendants to show a reasonable probability they would have appealed if not for counsel's failure to consult. Justice O'Connor suggested that the Fourth Circuit's interpretation of extending legal principles inappropriately could be valid.
The classification of legal issues presents some precision challenges. The Supreme Court's decision clarifies that a state court's failure to cite federal law does not automatically render its decision contrary to established federal law, as long as the reasoning or outcome does not contradict it. In the case of Lewis, the Superior Court noted trial counsel's acknowledgment of discussing potential appeal grounds, though trial counsel testified he believed Lewis had no viable appellate rights. The Commonwealth's counsel admitted this testimony was ambiguous and did not support a finding of adequate consultation as required by Flores-Ortega. Lewis's motion, which claimed his plea was not made knowingly or intelligently, lacked factual support and legal authority. In contrast, Lewis's pro se motion asserted that his plea was coerced and that trial counsel failed to uphold the plea agreement. If trial counsel deemed an appeal frivolous, he should have followed the procedures outlined in Anders and McClendon to withdraw properly. Despite facing severe sentencing, withdrawing the plea might not have been an irrational choice, considering Lewis's age and lack of prior convictions.
