                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2005

Warren v. Kyler
Precedential or Non-Precedential: Precedential

Docket No. 03-2190




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Recommended Citation
"Warren v. Kyler" (2005). 2005 Decisions. Paper 492.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/492


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                              PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

            _______________________

                  No. 03-2190
            _______________________

            DANIEL K. WARREN, JR.,

                                           Appellant

                         v.

             KENNETH D. KYLER,
  THE DISTRICT ATTORNEY OF THE COUNTY OF
LEHIGH, THE ATTORNEY GENERAL OF THE STATE
             OF PENNSYLVANIA,

                                           Appellees
             ______________________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
             (D.C. Civil No. 02-CV-997)
       District Judge: Honorable Marvin Katz
            _______________________

                Argued July 11, 2005
        Before: ALITO and BECKER, Circuit Judges
               and SHADUR, District Judge *

                   (Filed September 7, 2005 )




Mark Diamond (Argued)
Box 287356
Yorkville Station
New York, NY 10128

Counsel for Appellant

James B. Martin
District Attorney of Lehigh County
Matthew D. Weintraub (Argued)
Chief Deputy District Attorney
David J. Mussel
Assistant District Attorney
455 West Hamilton Street
Allentown, PA 18101-1614

Counsel for Appellee

                 ________________________




         * Honorable Milton I. Shadur, United States District Judge
for the Northern District of Illinois, sitting by designation.

                                2
                 OPINION OF THE COURT
                ________________________

SHADUR, District Judge:

       Daniel Warren (“Warren”) is currently in the State
Correctional Institution at Huntingdon, Pennsylvania, serving
a prison sentence of 10 to 20 years imposed after he entered a
negotiated guilty plea to one count of burglary on October 9,
1998. Warren now claims that the Commonwealth’s
imposition of that sentence has violated his federal due
process rights, and he seeks federal habeas corpus relief under
28 U.S.C. §2254 (“Section 2254”) on that basis. Because we
conclude that the requirements of Section 2254 have not been
met, we affirm the District Court’s denial of habeas relief.

             Factual and Procedural Background

        Under the terms of Warren’s plea agreement, other
pending charges were dropped and the burglary was treated as
a “strike two” offense by the Commonwealth. That latter
aspect of the agreement meant that the Pennsylvania
mandatory sentencing statute, 42 Pa. Cons. Stat. §9714
(“Section 9714”), was applied during Warren’s sentencing.
At that time Section 9714(a)(1) provided:

      Any person who is convicted in any court of this
      Commonwealth of a crime of violence shall, if at the
      time of the commission of the current offense the
      person had previously been convicted of a crime of
      violence and has not rebutted the presumption of high

                                  3
      risk dangerous offender...be sentenced to a minimum
      sentence of ten years of total confinement,
      notwithstanding any other provision of this title or
      other statute to the contrary.

That “presumption of high risk dangerous offender” applied in
Warren’s case because the terms of Section 9714(b) were met: He
had a prior conviction for a crime of violence that had taken place
fewer than seven years before the charged “strike two” offense. To
rebut the presumption, Section 9714(c) required Warren to present
evidence to the court at a hearing and required the sentencing judge
to consider 12 case-specific factors before deciding whether the
evidence presented was sufficient. After finding that no evidence
presented had overcome the operable presumption against Warren,
the sentencing judge imposed the sentence mandated by Section
9714 on December 28, 1998.
       Shortly thereafter Warren sought to have the court reconsider
the sentence imposed. But that effort was rebuffed on February 5,
1999 because Warren’s attorney had initiated a direct appeal to the
Superior Court of Pennsylvania. Eleven days later the direct appeal
was discontinued by Warren’s attorney. Then Warren’s later motions
seeking to revive his direct appeal by treating his submissions nunc
pro tunc were denied, effectively ending any direct review of
Warren’s sentence.
       That chain of events formed the basis for Warren’s first
petition for post-conviction collateral relief under Pennsylvania’s
Post Conviction Relief Act, 42 Pa. Cons. Stat. §9541. Warren
claimed ineffectiveness of trial counsel because his direct appeal had
been discontinued without his consent. After post-conviction
counsel was appointed, an evidentiary hearing was conducted by the
post-conviction court to assess his claim on June 20, 2000. Shortly

                                  4
after that hearing Warren filed motions claiming ineffectiveness of
his post-conviction counsel. On August 21, 2000 the post-conviction
court issued a ruling that dismissed both of Warren’s ineffectiveness-
of-representation claims, and Warren appealed that decision to the
Superior Court of Pennsylvania.
        After the appeal had been filed, Warren submitted an
application to the Superior Court seeking a determination as to
whether his waiver of counsel as to that appeal was knowing,
intelligent and voluntary. In response the Superior Court remanded
the appeal to the post-conviction court for the purpose of conducting
a colloquy. On February 20, 2001 the post-conviction court
determined that the waiver had been knowing, intelligent and
voluntary, so that Warren continued to represent himself on his post-
conviction appeal.
        In the midst of the just-described waiver proceedings, Warren
filed a second post-conviction petition on January 11, 2001. This
time he challenged the constitutionality of his sentence in light of the
Pennsylvania Supreme Court’s invalidation of Section 9714 in
Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000). But because
that second petition was filed while his original post-conviction
appeal was still pending, it was dismissed on January 22, 2001.
        On December 14, 2001 the Superior Court disposed of all
issues related to Warren’s post-conviction challenges. First the court
affirmed the finding that Warren’s waiver of counsel on the appeal
had been knowing, intelligent and voluntary. It also affirmed the
rejection of the ineffectiveness claims made in Warren’s first post-
conviction petition. Finally, the court directly addressed the
constitutional claim raised by Warren in his second post-conviction
petition and explicitly declined to apply Butler (emphasis in
original):


                                   5
        It is axiomatic that a new rule of law, even if given full
        retroactive effect, will not be applied to a collateral
        proceeding attacking the conviction. Commonwealth
        v. Tilley, 780 A.2d 649 (Pa. 2001). Instead, for a new
        rule of law to be applied to a proceeding, the issue had
        to be preserved at all stages, including on direct appeal.
        Id.; see also Commonwealth v. Todaro, 701 A.2d 1343
        (Pa. 1997)(a new rule of law is not applied in a
        collateral attack on a conviction).1 In the present case,
        Appellant did not raise the constitutionality of the
        statute during his plea proceedings nor did he raise it
        during direct appeal. Hence, it cannot be applied in
        this collateral proceeding.


        1
         That analysis appears to overstate prior Pennsylvania law,
as summarized in Commonwealth v. Gillespie, 516 A.2d 1180, 1183
(Pa. 1986), in one respect:

       Simply stated, a new rule of law to which we give full
       retroactive effect, will not be applied to any case on
       collateral review unless that decision was handed
       down during the pendency of an appellant’s direct
       appeal and the issue was properly preserved there, or,
       as here, is non-waivable.

Because the Superior Court had found Warren’s claim to be non-
waivable, there was no need to preserve it “at all stages.” But
because Butler was not handed down during the pendency of
Warren’s direct appeal, the rejection of collateral review on that basis
was a correct application of the Pennsylvania Supreme Court’s
teaching.

                                       6
        Warren filed a petition for federal habeas corpus relief
under Section 2254 on February 12, 2002, raising three
objections to the state court proceedings. Two of those
objections concerned the state court’s refusal to restore his
direct right of appeal, and the third challenged the use of
Section 9714 in his sentencing. All three objections were
rejected, and the writ of habeas corpus was therefore denied,
when the District Court adopted the report and
recommendations of the magistrate judge on March 11, 2003.
        Warren then filed a timely appeal in this court. We
granted Warren’s application for a certificate of appealability
as to two issues: (1) whether the failure to apply Butler
retroactively violated Warren’s due process rights, and (2)
whether the application of Section 9714's burden shifting
provision violated Warren’s due process rights independently
of the ruling on the first issue. Because the District Court’s
determination was based solely on the information contained
in the state court record, our review of those issues is plenary
(Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002)).

                  Federal Habeas Standards

       To qualify for relief under Section 2254, Warren must
demonstrate that “he is in custody in violation of the
Constitution or laws or treaties of the United States” (Section
2254(a)). As already stated, he contends that the state has
violated his federal due process rights in either or both of two
respects, We address his contentions in turn.

Retroactivity as a Due Process Issue

                               7
        As an initial basis for his claim that his due process
rights have been violated, Warren attacks the Pennsylvania
Superior Court’s decision not to apply Butler retroactively.
Although that argument raises the issue of retroactivity in the
context of habeas review, it is not one of the sort governed by
the Supreme Court’s standard articulated in Teague v. Lane,
489 U.S. 288 (1989), because we are not asked to decide the
applicability of a new federal rule of jurisprudence to an
already concluded state proceeding. Instead the issue here is
whether the Due Process Clause is implicated when a state
court declines to give retroactive effect to one of its own
decisions.
        We previously addressed a closely related issue in
Fiore v. White, 149 F.3d 221 (3d Cir. 1998). After the
Pennsylvania Supreme Court had decided Commonwealth v.
Scarpone, 634 A.2d 1109 (Pa. 1993), interpreting a state
statute, Fiore sought through state post-conviction
proceedings to have that ruling applied retroactively to his
case. When the state court declined that request, he filed a
petition for federal habeas relief.
        In reviewing his petition, we first noted that “Fiore is
entitled to relief only if federal law requires retroactive
application of Scarpone” (Fiore, 149 F.3d at 224). That
limitation on the scope of our review stems from the Supreme
Court’s reemphasis in Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) “that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions,”
and it applies with equal force here.
        As for the question that we could properly address on
habeas review--whether the United States Constitution
required the state to apply its decision on a question of state
law retroactively--we said this in Fiore, 149 F.3d at 224-25
(some citations omitted):



                               8
      The district court held, and Fiore maintains on
      appeal, that the Due Process and Equal
      Protection Clauses of the Fourteenth
      Amendment require retroactive application of
      Scarpone. This conclusion, however, is at odds
      with the Supreme Court’s longstanding position
      that “the federal constitution has no voice upon
      the subject” of retroactivity. Great Northern
      Ry. Co. v. Sunburst Oil & Refining Co., 287
      U.S. 358, 364 (1932). While the Court has
      concluded that some federal criminal decisions
      should apply retroactively, it has made clear that
      state courts are under no constitutional
      obligation to apply their own criminal decisions
      retroactively. Thus, just as the Supreme Court
      has fashioned retroactivity rules for the federal
      courts based on principles of judicial integrity,
      fairness, and finality, see Teague v. Lane, the
      state courts are free to adopt their own
      retroactivity rules after independent
      consideration of these and other relevant
      principles.

                        *     *     *

      Consistent with the Supreme Court’s
      admonition that federal courts not require
      retroactive application of state judicial
      decisions, this court has refused to require
      application of new state decisions in habeas
      proceedings.

       We recognize of course that our decision in Fiore was
reversed by the Supreme Court in Fiore v. White, 531 U.S.
225 (2001)(per curiam). But we do not read that outcome to


                              9
call into question the validity of the retroactivity analysis we
expressed there.2      Instead the basis for the Supreme Court’s
reversal in Fiore was a determination that retroactivity
principles were not implicated at all. And that determination
stemmed not from any independent review of the state
decision, but rather from the Pennsylvania Supreme Court’s
response to a certified question that characterized its Scarpone
decision as a clarification of the statute, not as an
announcement of a new rule of law (531 U.S. at 228).
        That outcome highlights the fact that it matters
whether a state decision has established a new rule of law or
merely clarified existing state law. But important as it may
be, we read nothing in Fiore that authorizes us to make that
kind of distinction based on our independent analysis of the
effect of a state court’s decision. Instead the earlier-identified
Estelle v. McGuire principle requires that we heed the state
court’s application of its own retroactivity principles.
        In this instance, the Pennsylvania Superior Court
declined to apply Butler retroactively to Warren’s post-
conviction appeal because it concluded that Pennsylvania
retroactivity principles do not give retroactive force to new
rules of law in the context of a collateral proceeding. That
means that we are in precisely the same position as in Fiore,
and we hold that precisely the same conclusion is appropriate.
        Moreover, it should be remembered that Fiore
involved a state court’s interpretation of a state criminal


         2
          To be sure, the potential for such an outcome was present
based on the Supreme Court’s having granted certiorari “to decide
when, or whether, the Federal Due Process Clause requires a State to
apply a new interpretation of a state criminal statute retroactively to
cases on collateral review” (Fiore, 531 U.S. at 226). But the Supreme
Court never reached the merits of that question, and because no
decision since then has cast doubt on our analysis, we continue to find
our approach persuasive.

                                  10
statute, while we deal here with a state court’s interpretation
of the United States Constitution. It does not at all follow that
the Supreme Court’s certification of such a state law issue to
the Pennsylvania Supreme Court in Fiore suggests a like
inquiry as to the federal constitutional question that we are
called upon to resolve.
        In short, Warren’s failure to receive the benefit of the
Butler decision was based on the Pennsylvania courts’
application of their own established retroactivity doctrines.
On habeas review we are in no position to second-guess the
state courts’ determination as to that state law issue. We must
rather review for a potential violation of federal law, and
because we conclude that nothing in the Constitution requires
states to apply their own decisions retroactively, we find no
such violation.
        Indeed, even if it were to be assumed for the sake of
argument that the federal Constitution governs the question
whether Butler applies retroactively to a state collateral
proceeding, we see no ground for reversal here. Surely the
federal Constitution did not require the Pennsylvania Supreme
Court to give Butler greater retroactive effect than that
decision would have carried if it had been handed down by
the United States Supreme Court--and as we explain at the
end of the next section of this opinion, a United States
Supreme Court holding such as that embodied in Butler
would not be applicable retroactively in a federal collateral
proceeding.

Clearly Established Constitutional Violation

        As an alternative basis for habeas relief, Warren
contends that the application of Section 9714's burden shifting
provisions at the time of his sentencing was itself a violation
of his federal due process rights. For him to succeed on that
claim, we must conclude that Warren’s sentencing “was


                               11
contrary to, or involved an unreasonable application of,
clearly established Federal law as determined by the Supreme
Court of the United States” (Section 2254(d)(1)).3
        Williams v. Taylor, 529 U.S. 362 (2000) interpreted
Section 2254(d)(1) to establish two distinct paths that might
lead to invalidation of a state conviction on habeas review.
We rehearse those two alternatives briefly before analyzing
their possible applicability to this case.
        First, federal habeas relief is warranted if the state
conviction was “contrary to...clearly established Federal law.”
That applies when a state court’s actions are “diametrically
different” from or “mutually opposed” to clearly established
law, either because the court ignores clear precedent
altogether or because it “confronts a set of facts that are
materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent”
(Williams, 529 U.S. at 406).
        Second, federal habeas relief is also appropriate if the
state conviction “involves an unreasonable application
of...clearly established Federal law.” That encompasses cases
in which the state court applies the proper Supreme Court
precedent to specific facts in an objectively unreasonable way
(id. at 409), or where the court unreasonably extends (or
unreasonably refuses to extend) a clearly established rule (id.


        3
          Before we embark on that inquiry, it is important to note the
very limited role that the Pennsylvania Supreme Court’s Butler
decision plays here. Invalidation of Section 9714 on federal due
process grounds less than two years after being applied to Warren’s
case might perhaps indicate a reasonable basis on which to conclude
that the provision was inconsistent with constitutional principles, but
it does not say much about the much narrower Section 2254 inquiry
as to whether its application at Warren’s sentencing was objectively
unreasonable in light of United States Supreme Court holdings.


                                  12
at 407).
        In either case we must first identify the applicable
“clearly established Federal law.” In that regard it is clear
from the terms of Section 2254(d)(1) that only Supreme Court
law is included, and Williams further narrows the field to the
holdings as opposed to the dicta of that Court (id. at 412).
And we do not consider those holdings as they exist today,
but rather as they existed “as of the time of the relevant state-
court decision” (id.).
        Also relevant is the more difficult question pertaining
to the appropriate level of particularity with which to view
Supreme Court holdings for purposes of Section 2254 review.
In Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004) we
noted that “if one examines the Supreme Court decisions at a
broad level of generality, the universe of state decisions that
may be contrary to those decisions will expand.” And indeed
a broad view might also be expected to increase the rate at
which a state court’s application of (or failure to apply)
Supreme Court holdings would be viewed as unreasonable.
But based on our review of Supreme Court jurisprudence, we
ultimately concluded that a “fact-specific” and “sharply
focused” view of Supreme Court holdings is required for
Section 2254 purposes (id. at 148-49).
        Given that analytical framework, we cannot conclude
that the state court’s application of Section 9714's burden-
shifting provision at the time of Warren’s sentence was an
error that satisfies Section 2254's requirements for habeas
relief. Warren’s argument to the contrary rests on his
assertion that the provision violates the general constitutional
principle that defendants must be viewed as innocent until
proved guilty beyond a reasonable doubt. To that end he cites
In re Winship, 397 U.S. 358, 364 (1970). That case--and
many others since--establish quite clearly that any
presumption against Warren as to an essential factual element
of the charged burglary would be unconstitutional and would


                               13
warrant habeas relief.
        But the Section 9714 presumption did not apply to an
element of the burglary offense. It applied instead in the
context of determining the severity of punishment. And
whether the Winship principle applies to that sort of situation
has been the subject of significant uncertainty in Supreme
Court thought--on that score, compare the discussion in such
cases as Mullaney v. Wilbur, 421 U.S. 684, 698 (1975),
Patterson v. New York, 432 U.S. 197, 206-11 (1977) and
McMillan v. Pennsylvania, 477 U.S. 79, 84-91 (1986)
(addressing the differences between those two earlier cases).
        McMillan in particular noted that “the extent to which
due process forbids the reallocation or reduction of burdens of
proof in criminal cases” was an unsettled question (id. at 86),
and it expressed an “inability to lay down any ‘bright line’
test” (id. at 91). Even so, the opinion did provide several
guideposts that are relevant to the inquiry here. For example,
the Court acknowledged that the Due Process Clause does not
permit States to discard the presumption of innocence (id. at
86-87). At the same time, it noted that the prosecution is not
relieved of its burden to prove guilt if a sentencing factor
“only becomes applicable after a defendant has been duly
convicted of the crime for which he is to be punished” (id. at
87). Based on that--as well as a number of other factors that
we need not address here in detail4 --McMillan concluded that


         4
           Of course, were we faced with the task of assessing the
constitutionality of Section 9714 as a matter of first impression (as we
are not), a closer analysis of those other factors--such as the extent to
which the sentencing factor alters the range of the sentence, the
question whether the sentencing factor triggers a mandatory minimum
as opposed to a mandatory maximum, or the likelihood that the
sentencing factor could be used by the legislature to evade the
requirements of Winship--would be required. In particular, we note
that although Mullaney provides support for Warren’s argument, we

                                   14
the application of a lower standard of proof to a sentencing
factor is not always problematic in due process terms.
        Just months before Warren’s sentencing, Almendarez-
Torres addressed many of the same questions the Court had
faced in McMillan. While Almendarez-Torres did not decide
the precise question of what burden of proof should apply
when recidivism is used to enhance criminal punishment, it
confirmed that recidivism need not be treated as an element of
the offense to be charged as part of the indictment and proved
beyond a reasonable doubt to a jury (523 U.S. at 247). In
addition the Court held (id. at 244-45) that the outcome of the
due process analysis is unchanged even if recidivism is used
to alter the maximum penalty for a crime, rather than the
mandatory minimum sentence as was the case in McMillan.
        To return to the Section 2254 standards, we must now
decide whether Pennsylvania’s application of Section 9714
was contrary to or involved an unreasonable application of the
cases just described. We conclude that neither is the case.
        As to the first half of that inquiry, the answer is clear.
None of those cases dealt with the precise issue of whether a
presumption of the sort created by Section 9714 can be
applied during sentencing. Hence we cannot conclude that
the state’s application of such a presumption was “contrary
to...clearly established Federal law.”
        Whether that presumption unreasonably applies any
principle clearly established by Supreme Court precedents is a
somewhat closer question, but one that we also answer in the
negative. In addressing that question, we are mindful that we
are not to decide whether we agree with the state court’s
application of Supreme Court holdings, but rather “whether
the state court’s application of clearly established federal law


cannot conclude in light of McMillan and Almendarez-Torres that the
state court’s decision in this case was “contrary to, or involved an
unreasonable application of clearly established federal law.”

                                15
was objectively unreasonable” (Williams, 529 U.S. at
409)(emphasis added)). Even were we to conclude that the
state court’s application of Supreme Court holdings was
incorrect or erroneous, we would not be in a position to issue
the writ of habeas corpus unless we were also to conclude that
the application of clearly established Supreme Court doctrine
was unreasonable (id. at 411).
        Both McMillan and Almendarez-Torres provide a
reasonable basis of support for the position that a presumption
that imposes a burden on a defendant may be constitutionally
acceptable if it is triggered by the offender’s recidivism and if
it applies only after the state has satisfied its burden to prove
all facts necessary for conviction. Thus we cannot conclude
that the state court’s decision to apply Section 9714 to
Warren’s sentence was an objectively unreasonable
application of clearly established federal law.5
        Finally, we note the obvious: Much has happened with
respect to sentencing and sentencing factors in the years since
Warren was imprisoned. Almendarez-Torres was just the first
in a series of recent Supreme Court cases dealing with such
issues that includes Apprendi v. New Jersey, 530 U.S. 466
(2000) and has culminated recently with United States v.
Booker, 543 U.S. __, 125 S.Ct. 738 (2005). But we need not
consider whether those new cases change the constitutional


        5
          It is worth recalling the precise nature of the presumption at
play in Warren’s sentencing. Section 9714 did not establish a
presumption as to the prior conviction itself -- to the contrary, the fact
of the prior conviction was admitted by Warren as part of his plea
agreement. Instead the presumption acted only once the recidivism
was established. In the context of a sentencing regime that simply
imposes a different sentence based on the fact of a prior conviction,
Section 9714 actually gave the judge more discretion to impose the
lower sentence. That makes the Section 9714 presumption quite
different from any of the Supreme Court cases discussed above.

                                   16
analysis just described, because we have held that those new
holdings are not applicable retroactively to cases on collateral
review (as to Apprendi, see United States v. Swinton, 333
F.3d 481, 491 (3d Cir. 2003); as to Booker, see Lloyd v.
United States, 407 F.3d 608, 613-15 (3d Cir. 2005)).

                          Conclusion

        Federal habeas relief is available under Section 2254
only if a prisoner demonstrates that “he is in custody in
violation of the Constitution or laws or treaties of the United
States.” We granted Warren a certificate of appealability to
review two potential claims along those lines, but our review
leads us to conclude that neither claim satisfies Section
2254’s requirements.
        Nothing in the federal Constitution compels a State to
apply its criminal decisions retroactively, and we lack the
authority to review the State’s own application of its
retroactivity principles. In substantive terms, the application
of a presumption against Warren that affected only the length
of his sentence based on a prior conviction was neither
contrary to nor an unreasonable application of the clearly
established Supreme Court jurisprudence that existed at the
time the sentence was imposed. For those reasons, the order
of the District Court is AFFIRMED and Warren’s petition for
a writ of habeas corpus is DENIED.




                               17
