                                     PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
           ________________

                  No. 11-3670
               ________________

              RANDALL SHOTTS,

                             Appellant

                        v.

       JOHN WETZEL, Secretary PA Doc;
 THE ATTORNEY GENERAL OF THE STATE OF
             PENNSYLVANIA;
THE DISTRICT ATTORNEY OF THE COUNTY OF
            WESTMORELAND

               ________________

   Appeal from the United States District Court
     for the Western District of Pennsylvania
      (D.C. Civil Action No. 2-11-cv-00599)
   District Judge: Honorable Robert C. Mitchell
                ________________

              Argued June 10, 2013

       Before: McKEE, Chief Judge,
    AMBRO, and NYGAARD, Circuit Judges
                (Opinion filed July 31, 2013)

Diana Stavroulakis, Esquire (Argued)
262 Elm Court
Pittsburgh, PA 15237

      Counsel for Appellant

James T. Lazar, Esquire (Argued)
John W. Peck, Esquire
Westmoreland County Office of District Attorney
2 North Main Street, Suite 206
Greensburg, PA 15601

      Counsel for Appellees

                     ________________

               OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       In 2001, Randall Keith Shotts was sentenced to 30½ to
133 years’ imprisonment in Westmoreland County,
Pennsylvania. Following a lengthy state collateral review
process, during which Shotts was appointed five different
counsel, he filed this petition for habeas corpus. It alleges
that his first attorney rendered ineffective assistance during
plea negotiations, his guilty plea, and sentencing. The
District Court dismissed Shotts’ claim as procedurally
defaulted.




                              2
       We disagree. The Pennsylvania Superior Court’s
determination that Shotts’ claim was defaulted because he
failed to raise it when first represented by new counsel was
what we term an exorbitant application of an otherwise
independent and adequate state rule. As such, it cannot bar
federal review of Shotts’ claim.

       However, on the merits Shotts comes up short, as he
has not demonstrated ineffective assistance of counsel. We
thus affirm the District Court’s judgment denying Shotts’
petition.

I.     Factual and Procedural History

       A.     Conviction and Sentencing

        In 1999, the Westmoreland County District Attorney
charged Shotts with offenses arising from a string of
burglaries. While in jail following his arrest, Shotts offered
to assist the District Attorney’s office in an investigation into
corruption at the Westmoreland County prison. In exchange
for his assistance, the District Attorney’s office helped secure
Shotts’ release on bail. Once released, Shotts engaged in
another spree of crimes, and additional charges were filed in
2000. Ultimately, he was charged under twelve separate
informations for offenses including burglary, theft, criminal
mischief, criminal conspiracy, receiving stolen property,
passing bad checks, criminal trespass, aggravated assault,
simple assault, reckless endangerment of another person, and
driving under the influence of alcohol. (Shotts was also
charged with probation violations in three earlier cases, but
no additional sentence was added for these violations.)

       Attorney Brian Aston represented Shotts in connection
with all of the charges from the time of Shotts’ preliminary
hearing through his sentencing. Because Shotts had made




                               3
substantial confessions to the police, he and Aston agreed that
the case should not go to trial, and Aston pursued a plea deal
with the Commonwealth. He apparently did not request
discovery of police records or copies of Shotts’ statements to
the police.

       The Commonwealth offered Aston a plea deal that
would have resulted in a sentence of ten to twenty years’
imprisonment.       On hearing this, Judge Richard E.
McCormick, Jr., who was presiding over the case,
commented that the offered sentence seemed high, given
Shotts’ assistance with the prison corruption investigation.
Aston reported the offer and the Judge’s statement to Shotts.
He rejected the plea deal and entered a general guilty plea
without an agreement with the Commonwealth. In a plea
colloquy before the Court, Shotts confirmed that his lawyer
had explained all of the charges and all of the maximum
sentences, that he was pleading without an agreement with
the Commonwealth, and that the Court could impose “the
various sentences upon these general pleas.” App. at 127–28.
Sentencing was delayed to allow for a presentence
investigation report and for Shotts to present evidence of his
participation in the corruption investigation. As to the latter,
Judge McCormick told the parties that he knew about Shotts’
assistance, but needed evidence to consider that as a factor for
sentencing purposes.

       Despite hearing evidence of Shotts’ cooperation in the
corruption investigation and notwithstanding his earlier
statement that ten to twenty years’ imprisonment seemed
high, Judge McCormick sentenced Shotts to an aggregate
30½ to 133 years’ imprisonment. This disparity resulted in
part from the Judge’s limited information about Shotts’
participation in the corruption investigation at the time of his
earlier statement and in part because the Judge meted out
sentences for each information separately without calculating




                               4
the aggregate sentence he was imposing. Having doled out
sentences for each offense, he explained: “Frankly, it’s going
to take a calculator for somebody to sit down now and
calculate up the total amount of years consecutively
[imposed],” and reported that “the clerk will have it . . . at
some point in time today.” App. at 199. Judge McCormick
then discussed the factors that justified the sentence. He
described Shotts’ lengthy criminal history, his drug abuse, his
participation in the prison investigation, and his substantial
criminal activity after his release on bail. Shotts filed a
motion for reconsideration,1 which the Court denied except to
change one sentence from one to two years’ imprisonment to
nine to eighteen months. This change had no effect on
Shotts’ overall time of imprisonment because that sentence
ran concurrent to other sentences imposed.

       At the resentencing hearing, Aston informed the Court
that Shotts wished to file a direct appeal and make a claim of
ineffective assistance of counsel against him. Aston was
permitted to withdraw, and the Court informed Shotts that
new counsel would be appointed. The Court appointed Leslie
Uncapher. She never learned about the appointment, as she
had withdrawn her name from availability for court
appointment prior to being assigned to Shotts’ case. Shotts’

1
  For reasons unexplained in the record, this reconsideration
motion omitted three of Shotts’ twelve cases. Because those
convictions were not raised in the resentencing motion, the
time to file a state collateral challenge to those convictions
expired earlier than the others, and Shotts’ challenges were
dismissed by the Pennsylvania Superior Court as procedurally
defaulted. Shotts does not contest before us the District
Court’s holding that his challenge to the conviction and
sentence in those cases was procedurally defaulted in state
court, and thus federal review is unavailable.




                              5
deadline to file a direct appeal expired on August 16, 2001,
without an appeal being filed. In September 2001, the order
appointing Uncapher was vacated and James Michael was
appointed counsel. Although Michael was instructed to file a
direct appeal, he took no action on the case.

      B.      Shotts’ Collateral Challenge

       In July 2002, Shotts filed a pro se petition under
Pennsylvania’s Post Conviction Relief Act (“PCRA”). He
claimed seventeen errors, including that both Aston and
Michael rendered ineffective assistance of counsel. Due to a
series of hearings and appeals on issues of timeliness, Shotts’
PCRA claim was not heard on the merits by a PCRA Court
until 2007. During that time, three additional counsel—
Rachel Morocco, Sharon Wigle, and Patricia Elliot—were
appointed to represent Shotts. Morocco and Elliot filed
amended PCRA petitions on Shotts’ behalf.

       All of Shotts’ PCRA petitions raised a claim of
ineffectiveness against Aston. None of the petitions included
a claim against Uncapher. Only Shotts, in his pro se petition,
raised a claim against Michael.
       On April 18, 2007, Judge Rita Donovan Hathaway,
presiding at the “PCRA Court,” held a hearing to consider
Shotts’ ineffectiveness claim against Aston. He and Shotts
both testified. Crediting Aston’s testimony and finding
Shotts’ testimony not credible, Judge Hathaway found that
Shotts’ plea was knowing, intelligent, and voluntary, and that
Aston provided effective representation as counsel in his
advice to Shotts before and during the plea and sentencing.
She thus denied all PCRA relief.

      On appeal to the Pennsylvania Superior Court, Shotts
argued that the PCRA Court erred. Specifically, he claimed




                              6
that Aston failed (1) to obtain any discovery prior to the plea,
(2) to advise Shotts properly of the possible range of
sentences, (3) by wrongly encouraging Shotts to enter a
general guilty plea, and (4) not to object to the filing of
separate criminal informations.

        The Superior Court affirmed the denial of relief, but on
a different ground. It held that Shotts’ claim against Aston
was defaulted. Under Commonwealth v. Hubbard, 372 A.2d
687 (Pa. 1977), a petitioner waives an ineffectiveness claim if
it is not raised by the first counsel who represents him after
the allegedly ineffective counsel. We call this the “Hubbard
rule.” It was violated here because counsel following
Aston—technically Uncapher, but in practical effect
Michael—did not raise any claim of Aston’s ineffectiveness.

       Even if subsequent counsel does not raise an
effectiveness claim, under Hubbard a later counsel may still
raise the claim by “layering” ineffectiveness claims against
counsel. See Commonwealth v. Grant, 813 A.2d 726, 733
(Pa. 2002) (“In the aftermath of Hubbard, the only way to
consider claims related to trial counsel’s ineffectiveness that
were not raised on direct appeal by new counsel was to plead
and prove the additional claim of appellate counsel’s
ineffectiveness, i.e., a layered claim of ineffectiveness.”).
Shotts could have gotten at the ineffectiveness of Aston by
claiming that each successive attorney was ineffective for
failing to challenge the prior attorney’s failure to raise the
claim (i.e., Uncapher was ineffective for not raising Aston’s
ineffectiveness, Michael was ineffective for not raising
Uncapher’s ineffectiveness, etc.). See Commonwealth v.
McGill, 832 A.2d 1014, 1021–22 (Pa. 2003) (explaining
layered claims). The Superior Court held that Shotts did not
preserve this claim. “[He] did not include a challenge to
counsel’s ineffectiveness for failing to file either a direct
appeal or a motion to withdraw his plea in any of his pro se or




                               7
amended PCRA petitions.”           App. at 79 (emphases in
original).

        On that alternate and procedural basis, the Superior
Court concluded that it was “constrained to affirm the order
of the trial court dismissing [Shotts’] petition for PCRA
relief,” and that “[his] only recourse appears to be in the
federal court system.” Id. at 79–80. Shotts’ petition for
allowance of appeal was denied by the Pennsylvania Supreme
Court.

       C.     Shotts’ Habeas Petition

       Shotts filed a pro se habeas claim in federal court. He
alleged constitutional violations that included ineffective
assistance of his plea counsel—a deprivation of his Sixth
Amendment right.2 Magistrate Judge Mitchell dismissed
Shotts’ petition. He determined that Shotts’ claim of
ineffectiveness was barred as procedurally defaulted due to
the Hubbard rule, an independent and adequate state
procedural rule. Shotts filed a timely notice of appeal and
request for certificate of appealability.

2
  Shotts also alleged three additional errors: (1) failure of the
trial court to give him proper credit for time served; (2) an
illegal sentence for lack of jurisdiction; and (3) a violation of
his Fifth Amendment right to due process. Judge Mitchell
determined that these claims were never presented to a state
court, and thus federal review was barred. 28 U.S.C. §
2254(b)(1)(A). Shotts does not contest this default, and has
not demonstrated cause or prejudice, or a miscarriage of
justice, sufficient to excuse this default. Cristin v. Brennan,
281 F.3d 404, 414 (3d Cir. 2002). We did not grant a
certificate of appealability on these claims and do not
consider them here.




                               8
       We granted a certificate of appealability on whether
the Superior Court’s determination that Shotts waived his
ineffective assistance of counsel claim against Aston was an
“exorbitant application” of the Hubbard rule, and, if we could
consider the claim, whether Shotts was denied effective
assistance of counsel based on allegations that Aston failed to
conduct any pre-plea discovery and did not advise Shotts of
the maximum amount of prison time he could receive.

II.    Procedural Default

       The adequacy of a state procedural bar is a question of
federal law, which we review de novo. Lee v. Kemna, 534
U.S. 362, 375 (2002); Holloway v. Horn, 355 F.3d 707, 713
(3d Cir. 2004).

       A.     Permissibility of Federal Review

        Generally, federal courts will not consider an issue
raised in a habeas petition if it was rejected by a state court
and “the decision of the state court rests on a state law ground
that is independent of the federal question and adequate to
support the judgment.” Kemna, 534 U.S. at 375 (alterations
and emphasis omitted). We look to the face of the opinion to
determine if the state court “clearly and expressly” states that
it relied on a state ground separate from the federal issues.
See Munchinski v. Wilson, 694 F.3d 308, 333 (3d Cir. 2012)
(quoting Coleman v. Thompson, 501 U.S. 722, 733 (1991)).
A state ground is “adequate” if it is “firmly established and
regularly followed.” Walker v. Martin, ___ U.S. ___, 131 S.
Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S.
53, 60–61 (2009)); Rolan v. Coleman, 680 F.3d 311, 317 (3d
Cir. 2012).

       To repeat, the Pennsylvania Superior Court dismissed
Shotts’ ineffectiveness claim because of the Hubbard rule.




                               9
The parties agree that it is independent of the federal
constitutional issue of ineffectiveness of counsel and, at the
time it was applied, was firmly established and regularly
followed by Pennsylvania courts. Trevino v. Thaler, ___ U.S.
___, 133 S. Ct. 1911, 1917 (2013) (“[A] conviction that rests
upon a defendant’s state law ‘procedural default’ (for
example, the defendant’s failure to raise a claim of error at
the time or in the place that state law requires) . . . normally
rests upon an independent and adequate state ground.”
(quotation omitted)). Hubbard was overturned by the
Pennsylvania Supreme Court in Grant, 813 A.2d at 738, but
Hubbard continued to apply to cases—like Shotts’—
“currently pending on collateral review.” Id. at 739 n.16.
Under Grant, “as a general rule, a petitioner should wait to
raise claims of ineffective assistance of trial counsel until
collateral review.” Id. at 738.

       B.     The Exorbitant Application Exception

       The Supreme Court, however, recognized a narrow
exception to this procedural bar to federal review in Lee v.
Kemna, 534 U.S. 362 (2002). In “exceptional cases . . .
exorbitant application of a generally sound rule renders the
state ground inadequate to stop consideration of a federal
rule.” Id. at 376. In Lee, a criminal defendant moved for a
delay of his trial when he discovered that his three alibi
witnesses could not be found in the courthouse though they
had been present earlier in the day. Id. at 369. His motion
failed, as the court cited its limited availability and the
appearance that the witnesses had abandoned Lee. Id. at 370.
Lee did not present any defense witnesses and was convicted.
On collateral attack, the Missouri Court of Appeals affirmed
the denial of his petition for relief. Id. at 372. It held that
Lee’s challenge was defaulted because he did not comply
with a state rule that motions for delay in trial must be made
in writing and accompanied by an affidavit. Id. at 372–73. A




                              10
federal district court and court of appeals held that this was an
adequate and independent state law ground barring federal
review. Id. at 374. The Supreme Court reversed, holding that
adherence to this technical requirement was an exorbitant
application of Missouri’s rule. Id. at 376.

        “Three considerations, in combination,” led the Court
“to conclude that this case [fell] within the small category of
cases in which [otherwise adequate] asserted state grounds
are inadequate to block adjudication of a federal claim.” Id.
at 381. First, the procedural requirement was not invoked at
Lee’s trial, and his perfect compliance with the rule would not
have altered the outcome. Id. The trial court denied the
continuance for scheduling reasons. Second, there was no
case law that directed flawless compliance with the rule in the
unique circumstances of his case. Id. at 382. Third, “and
most important,” id., Lee substantially complied with the
“essential requirements” of the rule, which were intended to
provide information to the trial court and opposing party. Id.
at 385. That Lee’s prior written motions related to these
witnesses, and he had a clear trial strategy to rely on their
alibi testimony, notified the trial court and opposing counsel
of all that was needed to rule on the motion.

        Thus, “[e]ven if a state rule itself is adequate, the
‘exorbitant application’ of the rule may in exceptional cases
render the state ground inadequate to erect a procedural bar.”
Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 657 (3d Cir.
2011) (quoting Lee, 534 U.S. at 376). As the procedural
default bar is grounded in a policy of comity and federalism
that gives deference to a state’s resolution of its criminal
trials, if the state rule applied serves “no perceivable state
interest,” it need not bar our review. Lee, 534 U.S. at 378.

       The three considerations relied on by the Lee Court are
not so much a test as they are “guideposts,” Cotto v. Herbert,




                               11
331 F.3d 217, 240 (2d Cir. 2003), that are helpful in
“evaluat[ing] the state interest in a procedural rule against the
circumstances of a particular case.” Lee, 534 U.S. at 381; see
also Monroe v. Kuhlman, 433 F.3d 236 (2d Cir. 2006)
(deeming application of contemporaneous objection rule as
exorbitant even though the first and third factors did not favor
the petitioner). The Lee considerations are strongly tied to the
facts of that case, where the alleged default occurred during a
criminal trial. Clark v. Perez, 510 F.3d 382, 391 (2d Cir.
2008) (noting that the Lee guideposts are “obviously rooted in
the context of procedural defaults at trial, and are so
formulated”). Here, where the default occurred when Shotts
failed to raise a claim on appeal, we consider the Lee factors
as helpful guidance but also consider the overall relevant
circumstances in our case.

       As did the Supreme Court in Lee, we believe that a
number of exceptional considerations, in combination, lead us
to conclude that the Superior Court’s application of the
Hubbard rule in this case was exorbitant. Over the course of
nine years and five appointed counsel, Shotts consistently
raised his claim that Aston provided ineffective assistance of
counsel. The PCRA Court considered Shotts’ claim on the
merits and held an evidentiary hearing to consider Aston’s
representation. Shotts had no opportunity to correct the
procedural default spawned by Hubbard before the Superior
Court sua sponte invoked it to dismiss his PCRA petition.
Moreover, because Shotts’ claim reached the Superior Court
on the merits, there is no state interest in applying the
procedural rule at that point.

       Shotts first raised his allegation that Aston provided
ineffective assistance of counsel at his resentencing hearing.
Indeed, Shotts’ desire to pursue this claim was the reason
Aston was permitted to withdraw as counsel. The Court
informed Shotts that new counsel would be appointed so that




                               12
he could pursue this claim. However, Uncapher—the first
new counsel appointed to Shotts—had removed her name
from the court appointment list and was never informed about
the assignment. It is not clear that Shotts even knew of
Uncapher’s appointment. By the time the Court vacated her
appointment, Shotts’ time to file a direct appeal had expired.
Michael—Shotts’ next attorney—appointed after his time to
file a direct appeal had expired, also took no efforts on
Shotts’ behalf despite his request, both before the Court and
in letters he sent to Michael, to file an appeal alleging Aston’s
ineffectiveness.

        Shotts then raised his claim challenging Aston’s
representation in his pro se PCRA petition. At the moment
he made this claim in 2002, it was technically defaulted under
Hubbard because he had not challenged Aston’s
representation when he was represented by Uncapher, or
Uncapher’s representation when he was represented by
Michael.       This default went unmentioned by the
Commonwealth or the PCRA Court until the Superior Court’s
decision in 2010 when it ended Shotts’ petition for collateral
relief because of this procedural requirement.

        The first factor the Lee Court considered was that the
trial court ruled on the merits of Lee’s motion to postpone his
trial, not the procedural bar later invoked by the state
appellate court.      In Shotts’ case, as in Lee, “perfect
compliance with the state rule” would not have changed the
outcome during the earlier state proceeding. Cotto, 331 F.3d
at 240; see Lee, 534 U.S. at 381. The PCRA Court treated his
claim as properly raised, and it considered the merits of the
ineffectiveness claim. It held an evidentiary hearing (where
Aston and Shotts both testified), and issued an opinion and
judgment. If Shotts had completely complied with the
Hubbard rule, the PCRA Court would have taken the exact
course.




                               13
       The Supreme Court also considered in Lee whether a
published Missouri state court decision “direct[ed] flawless
compliance” with the state rule at issue. Id. at 382. Beyond
noting the “sudden [and] unanticipated” events that arose
during Lee’s trial, the Court pointed out that the rule offered
the chance to cure any defect, yet Lee was not given that
opportunity. Id. “If either prosecutor or judge considered
supplementation of Lee’s motion necessary, they likely would
have alerted the defense at the appropriate time, and Lee
would have had an opportunity to perfect his plea.” Id. at
380.

        The same is true for Shotts. Under the Pennsylvania
Rules of Criminal Procedure, a “defective” PCRA petition
can be amended. Pa. R. Crim. P. Rule 905. “This rule
indicates the desire of this Court to provide PCRA petitioners
with a legitimate opportunity to present their claims to the
PCRA court in a manner sufficient to avoid dismissal due to a
correctable defect in claim pleading or presentation.”
Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003).
Shotts could have reached Aston’s ineffectiveness by layering
ineffectiveness claims against his later counsel who failed to
raise the issue properly. Id. at 1024 (citing Rule 905 as
applicable in cases “where the petitioner has failed to
preserve, by pleading and/or presenting, a layered
ineffectiveness claim in a manner sufficient to warrant merits
review”). But no one alerted Shotts during the years in
litigation of this case—which included three PCRA counsel
and two amended PCRA petitions—so he could perfect his
ineffectiveness claim. When the Superior Court sua sponte
raised the procedural default, he did not have the opportunity
to cure.

      Moreover, Shotts arguably attempted to raise a layered
claim in his pro se petition. As noted, the Pennsylvania
Superior Court stated that he “did not include a challenge to




                              14
counsel’s ineffectiveness for failing to file either a direct
appeal or a motion to withdraw his plea in any of his pro se or
amended PCRA petitions.” App. at 79 (emphases in
original). But Shotts’ listed Michael’s ineffectiveness in his
pro se PCRA petition. See id. at 16 (“Atty James Michael
has provided ineffective counsel since 2000 [sic], when he
was appointed.”); id. at 17 (“James Michael – Did nothing for
me, was completely useless as an attorney.”). At the time, the
Pennsylvania Courts had not defined the requirements of a
layered ineffectiveness claim. Commonwealth v. Ligons, 971
A.2d 1125, 1139 (Pa. 2009) (“[O]ur Court in McGill
acknowledged that the manner of properly layering a claim of
ineffective assistance of counsel had been unclear and
clarified the procedure for presenting layered claims.”). If the
Superior Court meant that Shotts’ pro se layered claim was
not properly pled, we would deem that to be an exorbitant
application of Hubbard’s layering requirement. It would
“inject an Alice-in-Wonderland quality into the proceedings,”
Lee, 534 U.S. at 383, to require a pro se litigant to know how
properly to layer an ineffectiveness claim when the highest
court in the Commonwealth was still struggling with the
issue.

       We recognize that the Hubbard rule—prior to being
overturned—was “unbending,” Grant, 813 A.2d at 733, a
factor that weighs against Shotts. But we also consider the
unusual “circumstances presented,” Cotto, 331 F.3d at 240,
that in this case include what the Commonwealth deems an
“admittedly horrendous history.” Appellee Br. at 11. Having
been sentenced to what could effectively be a lifetime of
imprisonment, Shotts understood counsel would be appointed
to pursue a direct appeal and claim against Aston. Neither
Uncapher or Michael filed a direct appeal. The issue was
raised again in Shotts’ PCRA petition. Years of delay
followed, which included failures of multiple counsel to file
timely motions and briefs. The Commonwealth has presented




                              15
no case, nor has our research revealed one, where a
Pennsylvania court relied on a default under Hubbard in
similar circumstances.

       Turning to the third, and “most important,” Lee
consideration, 534 U.S. at 382, we discern no state interest
served by applying the Hubbard rule in this case. The
Commonwealth argues that the rule serves an important state
interest in the finality of judgments and preservation of
judicial resources. How state interests were promoted here
evades us. The rule’s “essential requirement” that the claim
be raised at the earliest possible time was met by Shotts’
request at resentencing and continued pursuit of this claim
during the PCRA process. Id. at 385. His ineffectiveness
claim—and desire to challenge the finality of his sentence on
that ground—was clear from the time of his resentencing. It
was litigated for years. Ultimately, the facts at issue were
developed in the PCRA Court and presented to the Superior
Court for appellate review. Dismissing at the Superior Court
does not “promote judicial economy [or] the orderly
administration of the appellate process.” Hubbard, 372 A.2d
at 695 n.6 (quotation omitted). “Where it is inescapable that
the defendant sought to invoke the substance of his federal
right, the asserted state-law defect in form must be more
evident than it is here.” Lee, 534 U.S. at 385 (quotation
omitted).

       The combination of these factors “lead[s] us to
question the applicability of this body” of state law. Whitley
v. Ercole, 642 F.3d 278, 290 (2d Cir. 2011). We believe that
the Superior Court’s application of the Hubbard rule in this




                             16
case was exorbitant, and does not bar federal review of
Shotts’ claimed ineffectiveness of plea counsel.3

IV.    Ineffectiveness of Counsel

       We certified for appeal two aspects of Shotts’
ineffectiveness claim—(1) Aston’s alleged failure to conduct
an investigation or discovery prior to Shotts’ guilty plea, and
(2) his alleged failure to advise Shotts of the maximum
sentence available.

       A.     Standard of Review

       Decisions on the merits by a state court are afforded
deference under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. We will
reverse only if the court’s determinations “(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law . . . or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” § 2254(d). If a state court does
not review a claim on the merits, we review the claim de
novo. Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012).


3
  Federal courts can also review procedurally defaulted claims
if the petitioner can show “cause for the default and prejudice
from a violation of federal law.” Trevino v. Thaler, ___ U.S.
___, 133 S. Ct. 1911, 1917 (2013) (quotation omitted);
Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1318–19
(2012). Because of the path taken to resolve this case, we do
not need to consider this other exception, for which we did
not issue a certificate of appealability or have the benefit of
briefing.




                              17
        The parties agree that we should apply AEDPA
deference to Shotts’ allegation that Aston failed to inform him
of the possible sentences because the PCRA Court considered
this claim and issued a ruling on the merits. Appellant Br. at
51; Appellee Br. at 16. The Commonwealth argues for
similar deference in Shotts’ allegation that Aston was
ineffective for failing to conduct discovery because the PCRA
Court discussed the merits of this claim, though ultimately
ruling it was waived. App. at 69 n.5. Deference is not owed
in this case, however, because there was no decision on the
merits.

        “For the purposes of Section 2254(d), a claim has
been ‘adjudicated on the merits in State court proceedings’
when a state court has made a decision that 1) finally resolves
the claim, and 2) resolves th[at] claim on the basis of its
substance, rather than on a procedural, or other, ground.”
Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The
PCRA Court’s decision did not finally resolve Shotts’ claim
because the later Superior Court decision “stripped the PCRA
court’s substantive determination . . . of preclusive effect.”
Id. The appellate decision is procedure-based, and thus does
not reach the merits. Id. With the PCRA Court’s ruling
stripped of preclusive value, “AEDPA deference is not due.”
Id. We review Shotts’ claim de novo. In this case, however,
the standard of review makes little difference. Under either
standard, Shotts has not demonstrated ineffective assistance
of counsel.

      B.      Claims Against Plea Counsel

      To establish ineffective assistance of counsel, “a
defendant must show both deficient performance by counsel
and prejudice.” Knowles v. Mirzayance, 556 U.S. 111
(2009); Strickland v. Washington, 466 U.S. 668 (1984).
Performance is deficient if counsel’s efforts “fell below an




                              18
objective standard of reasonableness” under “prevailing
professional norms.” Strickland, 466 U.S. at 688. “A court
considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance. The
challenger’s burden is to show ‘that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’”
Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 787
(2011) (quoting Strickland, 466 U.S. at 687–89).

       To demonstrate prejudice, “a defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see Wright v. Van Patten, 552
U.S. 120, 124 (2008). At the plea stage, prejudice “focuses
on whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” Hill v. Lockhart,
474 U.S. 52, 58 (1985).
              1.    Alleged Failure to Obtain Discovery

       Shotts alleges that Aston was ineffective for failing to
conduct discovery—including obtaining police reports and
records—prior to advising his client to plead guilty. A
counsel’s “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable. . . . [C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S.
at 690–91.

       We cannot conclude that failing to obtain discovery in
this   context fell below an objective standard of




                              19
reasonableness. Aston made a reasonable strategic choice in
light of Shotts’ “pretty substantial confession” and his wish to
avoid trial. App. at 235. Aston’s preliminary investigation
governed his choice to pursue a plea agreement and then to
try to obtain a favorable sentence following a general guilty
plea.     The facts here do not demonstrate deficient
performance.

         As for prejudice, no allegation exists that evidence in
these records would have aided plea negotiations or reduced
the charges or sentence Shotts faced. His only allegation is
that Aston would have been better prepared to advise him
during the plea and sentencing if Aston had obtained
discovery. That fails to show “a reasonable probability
that . . . the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.

              2.     Alleged Failure       to   Advise   About
                     Sentencing

       Shotts contends also that Aston was ineffective
because he failed to inform Shotts of the maximum sentence
he could receive. No one disputes that Aston told Shotts the
maximum sentence available for each offense, but did not
calculate the total possible sentence available if the Court’s
sentence for each count ran consecutively. Although Aston
never provided a total sentence that Shotts could face in the
worst-case scenario, he told Shotts that “if everything runs
consecutive this is going to get to be a very large number very
quick.” App. at 248, 247, 264. Shotts knew that the Judge
had discretion to impose various sentences and that he had no
sentencing agreement with the Commonwealth when he pled
guilty. Aston and Shotts expected the sentence to be far
lower than Shotts received, but Aston did not make any
promises to Shotts about his sentence.




                              20
        In the context of a guilty plea, counsel is required to
give a defendant information sufficient “to make a reasonably
informed decision whether to accept a plea offer.” United
States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). In effect,
Shotts asks us to hold that his decision is only reasonably
informed if counsel has provided an exact number or close
estimate of the maximum sentencing exposure. We decline to
do so. Aston informed Shotts of the maximum sentence for
each offense and that the aggregate sentence could increase
quickly if the Judge chose to run those sentences
consecutively—something Shotts understood the Judge had
the discretion to do. Aston provided sufficient information
for Shotts to make a reasonably informed decision to plead
guilty.

        Even if Shotts could show deficient performance, he
could not demonstrate prejudice. “In the context of pleas a
defendant must show the outcome of the plea process would
have been different with competent advice.” Lafler v.
Cooper, ___ U.S.___, 132 S. Ct. 1376, 1384 (2012). If a
defendant rejects a plea, he must show that “but for counsel’s
deficient performance there is a reasonable probability he and
the trial court would have accepted the guilty plea” and the
resulting sentence would have been lower. Id. at 1391; see
United States v. Booth, 432 F.3d 542, 546–47 (3d Cir. 2005);
Baker v. Barbo, 177 F.3d 149, 154–55 (3d Cir. 1999).

       Shotts asserts he was prejudiced because he refused
the ten-to-twenty-year plea deal and entered a constitutionally
invalid plea on the basis of Aston’s deficient performance.
We disagree. Shotts believed that the plea offer was too high
and that he would receive a lower sentence. In light of his
prior convictions, as well as Judge McCormick’s statement
that the plea offer of ten to twenty years seemed high, this
may have been a reasonable expectation. Shotts knew the
possibilities when he rejected the plea deal. We cannot now




                              21
say there is a reasonable probability he would have taken the
plea deal if Aston had acted as Shotts suggests.4

                 *      *      *      *      *

       In the exceptional circumstances of this case, the
Pennsylvania Superior Court’s application of the Hubbard
rule was exorbitant and does not bar federal review. When
we consider Shotts’ claim on the merits, however, we
conclude that he has not demonstrated Aston’s
ineffectiveness. Thus we affirm the District Court’s judgment
denying Shotts’ petition for habeas corpus.




4
  We pause to note our concern with the sentencing judge’s
actions in this case—both offering an opinion on the plea deal
and imposing a sentence without calculating the aggregate
incarceration that resulted (unless the pre-sentence calculation
could only result in a sentence of life imprisonment, not
necessarily the case here). Nonetheless, given the posture of
this case and the limitations embedded in habeas review of a
state court judgment, these are not grounds for relief. Aston’s
performance was not deficient because he failed to account
for the sentencing judge’s unconventional behavior.




                              22
