                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2009

Peace v. Klem
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3571




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Recommended Citation
"Peace v. Klem" (2009). 2009 Decisions. Paper 1124.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1124


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-3571


                                     ERIC PEACE,
                                             Appellant

                                           v.

                          EDWARD KLEM;
       THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
        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. 06-cv-3379
                            (Honorable Harvey Bartle III)


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 2, 2009
    Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.

                                 (Filed: June 26, 2009)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Petitioner Eric Peace brings this habeas corpus action under 28 U.S.C. § 2254.

Peace pleaded guilty to three counts of kidnapping and one count each of robbery of a
motor vehicle, possessing instruments of crime, and criminal conspiracy.1 He took no

direct appeal. Peace filed his timely petition for collateral relief in state court under

Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, on June 3,

2003, requesting reinstatement of his direct appellate rights because he allegedly asked

counsel to file a direct appeal, which counsel failed to do. The PCRA court, after an

evidentiary hearing, found that Peace never asked his counsel to file a direct appeal.

Accordingly, the court dismissed Peace’s petition. Peace appealed to the Pennsylvania

Superior Court, which affirmed the denial of PCRA relief and found that Peace waived

his claims because he had failed to comply with Pa. R. App. P. § 1925(b).2 On May 9,

   1
    Peace, along with two others, kidnapped a woman and her two young children at
gunpoint and held them for ransom for several days in the hopes of extorting drugs from
her boyfriend, supposedly a top neighborhood drug dealer. After being arrested, Peace
made a full confession to the police detailing his involvement in the crimes.
       Peace pleaded guilty initially on July 7, 2002. He then moved to withdraw his
guilty plea, a motion the court granted on September 25, 2002. On February 3, 2003,
Peace filed a suppression motion which was denied. Peace then entered a guilty plea in
which he agreed to very limited appeal rights. At his sentencing, Peace apologized to his
victims and to the court, and asked for leniency in his sentencing. He was sentenced to ten
to twenty years imprisonment.
   2
       Pa. R. App. P. § 1925(b) states:

          The lower court forthwith may enter an order directing the appellant to file of
          record in the lower court and serve on the trial judge a concise statement of the
          matters complained of on the appeal no later than 14 days after entry of such order.
          A failure to comply with such direction may be considered by the appellate court
          as a waiver of all objections to the order, ruling or other matter complained of.

On June 13, 2004, three days after the PCRA court filed its opinion, appellate counsel
was directed by the Pennsylvania Superior Court to file such a concise statement. The
                                                                             (continued...)

                                                2
2006, the Pennsylvania Supreme Court denied Peace’s petition for appeal.

         Peace timely filed a petition for federal habeas corpus relief in the Eastern District

of Pennsylvania. The District Court, in accordance with the Report and Recommendation

of the Magistrate Judge, determined Peace’s claims were procedurally defaulted and

denied relief. We granted a certificate of appealability under 28 U.S.C. § 2253(c)(1) for

the sole question of whether trial counsel was ineffective for failing to file a direct

appeal.3 We will affirm the District Court.

         We review the District Court’s denial of habeas corpus relief de novo. Harrington

v. Gillis, 456 F.3d 118, 124 (3d Cir. 2006). Our review is governed by the Antiterrorism

and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas

relief is only appropriate for a claim that was adjudicated on the merits in state court if the

state adjudication of the claim “(1) resulted in a decision that is contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; 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 proceedings.” 28 U.S.C. § 2254(d). Furthermore, a “determination of a factual

issue made by a State court shall be presumed to be correct. The applicant shall have the


(...continued)
entire statement consisted of: “Whether the court erred in denying Petitioner PCRA
relief.” The Pennsylvania Superior Court determined the statement was too general and
vague to alert the court of the specific issues to be raised on appeal.
   3
       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

                                                3
burden of rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

       The Commonwealth contends, and the District Court and Magistrate Judge

competently found, that Peace had procedurally defaulted his claims because he did not

adhere to the state appellate procedural rules. Even if we assume Peace’s claims are not

procedurally defaulted,4 we would still apply AEDPA’s deferential standard on the factual

findings made by the PCRA court. Unless Peace produced clear and convincing evidence

to the contrary, we are therefore bound by the PCRA court’s determination that he did not

ask his counsel to file a direct appeal.

       Peace contends he verbally asked his counsel to file an appeal after his sentencing.

In testimony at the PCRA hearing, his counsel denied he was ever asked to file an appeal.

The PCRA court found counsel to be credible. The court also identified additional

evidence to support this finding: two letters, one Peace sent to his counsel which never

mentioned a request for an appeal; the second from Peace’s mother to counsel thanking

him for his help, but also making no mention of a request for an appeal. In light of this

evidence, the PCRA court concluded the “defendant did not meet his burden of proving




   4
    In general, we may not consider issues on appeal that are not within the scope of the
certificate of appealability. 28 U.S.C. § 2253(c)(3); Villot v. Varner, 373 F.3d 327, 337
n.13 (3d Cir. 2004). We note that the certificate of appealability before us does not
include the issue of procedural default.

                                             4
ineffectiveness for failure to file a requested appeal because he never requested such from

his attorney.”

       To overcome the PCRA court’s finding of fact, Peace must present clear and

convincing evidence of his attempts to communicate with his attorney or evidence which

corroborated his testimony that he asked his counsel to file a notice of appeal. See 28

U.S.C. § 2254(e)(1). Peace produced no new or different evidence in his federal petition.

He relied entirely upon his testimony from the PCRA hearing. As noted, Peace’s

testimony conflicts with the testimony by his trial counsel whom the PCRA court found to

be credible.

       In conjunction with the PCRA court’s findings of fact, we also note Peace pleaded

guilty after his motion to suppress was denied. The Supreme Court has stated that

“[a]lthough not determinative, a highly relevant factor in this inquiry [whether defendant

asked for counsel to file a direct appeal] will be whether the conviction follows a trial or

a guilty plea, both because a guilty plea reduces the scope of possible appealable issues

and because such a plea may indicate that the defendant seeks an end to judicial

proceedings.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Peace’s guilty plea is

probative (but not dispositive) in indicating petitioner’s desire to end judicial proceedings.

       Therefore, because the petitioner did not carry his burden of challenging the

presumptively correct factual findings of the PCRA court by clear and convincing

evidence, we will affirm the judgment of the District Court denying the habeas petition.



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