                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

Holiday v. Varner
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1451




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"Holiday v. Varner" (2006). 2006 Decisions. Paper 1250.
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                                                         NOT PRECEDENTIAL


   UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                               No. 05-1451


                          STEVEN HOLIDAY,
                                        Appellant

                                    v.

BENJAMIN VARNER, Superintendent SCI-Smithfield; THE OFFICE OF THE
 DISTRICT ATTORNEY OF PHILADELPHIA; LYNNE ABRAHAM; THE
    ATTORNEY GENERAL OF PENNSYLVANIA, *TOM CORBETT
                              *{Substituted pursuant to Rule 43(c))


              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                      (D.C. Civil No. 04-cv-00827)
                District Judge: Hon. Clifford Scott Green


                Submitted Under Third Circuit LAR 34.1(a)
                             April 18, 2006

       Before: SLOVITER, AMBRO and MICHEL * , Circuit Judges


                          (Filed April 19, 2006)


                                OPINION



          *
           Hon. Paul R. Michel, Chief Judge of the United States
       Court of Appeals for the Federal Circuit, sitting by
       designation.
MICHEL, Circuit Judge.

       Steven Holiday appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, denying without an evidentiary hearing his habeas

corpus petition filed pursuant to 28 U.S.C. § 2254, as amended by the Anti-terrorism and

Effective Death Penalty Act (“AEDPA”). We affirm the district court’s denial of habeas

relief, but on alternate grounds. In short, we disagree with the finding that Holiday was

procedurally barred from seeking federal habeas review of his ineffective assistance

claims against appellate counsel, but we find, on the merits, that he is not entitled to

habeas relief or an evidentiary hearing thereon.

       On December 9, 1997, Holiday was convicted of first degree murder, criminal

conspiracy and carrying a firearm. He was sentenced to life imprisonment without parole,

plus two additional terms of two-and-a-half to five years, one consecutive and one

concurrent. The Superior Court affirmed his conviction on September 28, 1999,

rejecting, inter alia, three alleged instances of ineffective assistance of trial counsel

presented by new counsel. Commonwealth v. Holiday, 747 A.2d 413 (Pa. Super. 1999).

The Supreme Court of Pennsylvania denied his request for further appellate review on

April 27, 2000. Commonwealth v. Holiday, 757 A.2d 929 (Pa. 2000).

       On March 12, 2001, Holiday filed a petition under the Pennsylvania

Post-Conviction Relief Act (“PCRA”), alleging ineffective assistance of trial counsel for

three additional reasons and, by extension, ineffective assistance of appellate counsel (a



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different lawyer) for failing to raise those three reasons on direct appeal. Specifically, he

argued that trial counsel failed to: (1) object to a “progression charge” and request an

“unable to agree” instruction that would have allowed the jury to consider a lesser charge

without first unanimously acquitting the defendant of the greater offense; (2) request a

“no adverse inference” instruction with respect to the defendant’s failure to testify; and

(3) object to an instruction that defined “reasonable doubt” as that which “would cause a

reasonably careful and sensible person to pause, hesitate, or refrain from acting upon a

matter of highest importance in his or her own affairs or to his or her own interest.”

       The PCRA petition was dismissed by the Philadephia County Court of Common

Pleas (“PCRA court”) on June 26, 2002. In the opinion that followed on July 12, 2002,

the PCRA court explained that Holiday’s claims pertaining to trial counsel had been

waived because they were not raised at the first point in the proceedings when he was no

longer represented by that lawyer on direct appeal. Nonetheless, the PCRA court went on

to address each of the alleged instances of ineffective assistance on the merits, finding

that trial counsel could not be deemed ineffective for the reasons alleged in Holiday’s

petition and, therefore, appellate counsel could not be deemed ineffective for failing to

raise those reasons on appeal in addition to the three claims of ineffective assistance that

appellate did raise.

       On June 30, 2003, the Superior Court affirmed, adopting the rationale of the

PCRA court and attaching a copy of that opinion. Commonwealth v. Holiday, 832 A.2d



                                              3
537 (Pa. Super. 2003). With respect to Holiday’s ineffective assistance claims against his

counsel on direct appeal, Bruce Wolf, the Superior Court reasoned:

               We find that Holiday has failed to prove his entitlement to relief
       under the PCRA. In both his PCRA petition and his brief to this Court,
       Holiday baldly asserts at the end of each argument regarding trial counsel’s
       ineffectiveness that direct appeal counsel was ineffective for failing to raise
       these claims. . . . Mere boilerplate allegations appended to waived claims of
       trial court or trial counsel’s error are insufficient to prove an ineffectiveness
       claim under the PCRA.
               . . . [Holiday] does not even attempt to show how Attorney Wolf’s
       failure to raise these claims on direct appeal lacked any reasonable basis
       designed to effectuate his interests or how the outcome would have differed
       had these claims been raised. Indeed, Holiday never discusses Attorney
       Wolf’s performance, except to say that the claims he did raise on direct
       appeal, which included three claims of trial counsel’s ineffectiveness, “had
       no chance of prevailing.” Holiday’s bald allegations of direct appeal
       counsel’s ineffectiveness cannot undo the waiver of the underlying claims.
       Holiday, therefore, has failed to establish his entitlement to relief.
               Even if Holiday had properly pled his claims of direct appeal
       counsel’s ineffectiveness, however, we would agree with the PCRA court
       that none of them has merit for the reasons discussed in its opinion.
       (Citations omitted).

On December 23, 2003, the Supreme Court of Pennsylvania denied Holiday’s petition for

allocatur. Commonwealth v. Holiday, 841 A.2d 529 (Pa. 2003).

       On February 25, 2004, Holiday filed a petition for writ of habeas corpus in the

United States District Court for the Eastern District of Pennsylvania, making the same

arguments he had raised in his PCRA petition. On September 30, 2004, Magistrate Judge

Arnold C. Rapoport issued a Report and Recommendation, finding that the ineffective

assistance claims against trial counsel were procedurally defaulted because the state court

had relied on “an independent and adequate state ground” – i.e., waiver – in denying

                                               4
relief. Coleman v. Thompson, 501 U.S. 722, 735 (1991). He also concluded that Holiday

was procedurally barred from federal habeas review of his claims against appellate

counsel. He explained that Holiday did not comply with the pleading requirements for

layered ineffectiveness of counsel claims and his claims were therefore waived.

Magistrate Judge Rapoport recommended denying the habeas petition with prejudice and

dismissing it without an evidentiary hearing. On January 19, 2005, Senior Judge Clifford

Scott Green approved and adopted the magistrate’s report.

       A timely appeal followed. On June 2, 2005, this Court granted a certificate of

appealability on (1) whether the district court erred in finding the ineffective assistance

claims against appellate counsel procedurally defaulted and (2) if so, whether, on the

merits, Holiday was entitled to habeas relief.

       Because no evidentiary hearing was conducted by the district court, this court’s

review is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001). “In habeas, if

the decision of the last state court to which the petitioner presented his federal claims

fairly appeared to rest primarily on those claims, or to be interwoven with those claims

and did not clearly and expressly rely on an independent and adequate state ground, a

federal court may address the petition.” Coleman v. Thompson, 501 U.S. at 735; see also

Michigan v. Long, 463 U.S. 1032, 1041-41 (1983). Here, the Pennsylvania Superior

Court did not clearly or expressly indicate that it considered Holiday’s ineffective

assistance claims with respect to appellate counsel waived as insufficiently pled. On the



                                              5
contrary, it focused on whether the “boilerplate allegations” were “insufficient to prove

an ineffectiveness claim under the PCRA,” i.e., an evaluation of the merits that a federal

habeas court is free to review. In other words, the court seemed to rely on appellant’s

failure to adduce adequate proof before the PCRA court.

       Nor are we convinced that, at the time Holiday filed his PCRA petition on

March 12, 2001, there was a clearly established procedural rule for pleading a layered

ineffectiveness claim on state collateral review. In Commonwealth v. Marrero, 748 A.2d

202 (Pa. 2000), the majority rejected the view of the concurring opinion, that appellant’s

claim of ineffective assistance of appellate counsel was waived when it was only

generally asserted in the statement of questions presented without further support in the

brief. Id. at 203, n.1. The following year, the issue was revisited:

       In light of the Marrero opinions, it is apparent that competent PCRA
       counsel must, in pleadings and briefs, undertake to develop, to the extent
       possible, the nature of the claim asserted with respect to each individual
       facet of a layered ineffectiveness claim, including that which relates to
       appellate counsel. While a majority of this Court would presently continue
       to allow a degree of latitude in this regard, the distinction between sufficient
       and insufficient claims will likely undergo further development over time in
       the context of specific cases; therefore, to ensure a petitioner’s entitlement
       to merits review, it is critical that post-conviction counsel avoid arguments
       on the fringes of appropriate presentation.

Commonwealth v. Williams, 782 A.2d 517, 525-26 (Pa. 2001) (emphasis added). Indeed,

it was not until September 29, 2003, three months after the Superior Court affirmed the

denial of Holiday’s PCRA petition, that the Supreme Court of Pennsylvania set forth a

clear explanation of the “plead and prove” requirement of 42 Pa.C.S. § 9543(a)(2)(ii).

                                              6
       [W]e now clarify that in order for a petitioner to properly raise and prevail
       on a layered ineffectiveness claim, sufficient to warrant relief if
       meritorious, he must plead, present and prove the effectiveness of Counsel
       2 (appellate counsel), which as we have seen, necessarily reaches back to
       the actions of Counsel 1 (trial counsel). To preserve (plead and present) a
       claim that Counsel 2 was ineffective in our hypothetical situation, the
       petitioner must: (1) plead, in his PCRA petition, that Counsel 2 was
       ineffective for failing to allege that Counsel 1 was ineffective for not
       objecting to the erroneous jury instruction . . . and (2) present argument on,
       i.e., develop, each prong of the Pierce test as to Counsel 2's representation,
       in his briefs or other court memoranda. Then, and only then, has the
       petitioner preserved a layered claim of ineffectiveness for the court to
       review; then, and only then, can the court proceed to determine whether the
       petitioner has proved his layered claim.

Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (citations omitted).

       On the merits, however, the standard of review under AEDPA is deferential. We

cannot grant relief unless the PCRA court’s decision was “contrary to, or involved an

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

Supreme Court of the United States” or “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). The “contrary to” prong is met if a state court “applied a rule that contradicts

the governing law as set forth in the Supreme Court’s cases,” or “confronted a set of facts

that are materially indistinguishable from a Supreme Court decision and nevertheless

arrived at a result different from the Court’s precedent.” Fountain v. Kyler, 420 F.3d 267,

273 (3d Cir. 2005) (citations omitted). The “unreasonable application” test is met “only if

the state court identified the correct governing legal rule but unreasonably applied it to the

particular case or if the state court either unreasonably extended a legal principle from

                                              7
Supreme Court precedent to a new context in which it should not apply or where it

unreasonably refused to extend such a principle to a new context in which it should

apply.” Id.

       On appeal, Holiday focuses on his claims of ineffectiveness with respect to the

progression charge and the reasonable doubt instruction. On the progression charge, the

PCRA court found that appellate counsel could not be deemed ineffective for failing to

raise this alleged instance of ineffectiveness of trial counsel because the authorities

Holiday cited from other jurisdictions – i.e., Arizona, Hawaii, Michigan, Ohio and

Oregon – were not binding on Pennsylvania courts, which had repeatedly upheld the

constitutionality of such a jury instruction. As to the reasonable doubt instruction, the

PCRA court found that appellate counsel could not be deemed ineffective for failing to

raise that ineffectiveness claim either, for the same reason: it was a standard jury

instruction and Pennsylvania courts had previously rejected a similar challenge. These

holdings were not contrary to or unreasonable applications of clearly established federal

law. Thus, we affirm the denial of Holiday’s habeas petition.




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