                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2004

Lewis v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 01-1036P




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Lewis v. Johnson" (2004). 2004 Decisions. Paper 894.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/894


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                         PRECEDENTIAL            Before: SLOVITER, AMBRO,
                                                 Circuit Judges, and TUCKER,*
                                                          District Judge
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                   (Opinion Filed March 10, 2004 )


              No. 01-1036                   Michael D. Bartko, Esquire (Argued)
                                            Suite 401
                                            210 Grant Street
     CHARLES THOM AS LEWIS,                 Pittsburgh, PA 15219

                     Appellant                     Attorney for Appellant

                    v.                      Ronald M. Wabby, Jr., Esquire (Argued)
                                            Office of the District Attorney
 PHILIP L. JOHNSON, Superintendent,         401 Allegheny County Courthouse
SCI-Pittsburgh; MIKE FISHER,                Pittsburgh, PA 15219
   Attorney General of Pennsylvania,
                                                   Attorney for Appellees
                     Appellees

                                                   OPINION OF THE COURT
      Appeal from the Order denying
    Petition for Writ of Habeas Corpus
        and denying a Certificate of        TUCKER, District Judge.
  Appealability entered on December 8,
2000, in the United States District Court           This matter comes to us on appeal
for the Western District of Pennsylvania    from the district court’s denial of
                                            Appellant Charles Thomas Lewis’s
  (D.C. Civil Action No. 00-cv-1500)        application for writ of habeas corpus,
                                            seeking relief from his state conviction on
District Judge: Hon. William L. Standish    grounds his Sixth Amendment right to
                                            effective assistance of counsel was
                                            violated. Specifically, Lewis contends that
          Argued June 26, 2003              his trial counsel’s failure to file a notice of
                                            appeal constituted constitutionally-

                                            Eastern District of Pennsylvania, sitting by
* Hon. Petrese B. Tucker, United            designation.
States District Court Judge for the
deficient performance within the meaning                    On March 12, 1987, nine days
of Strickland v. Washington, 466 U.S. 668           following his sentencing, Lewis filed a
(1984), and Roe v. Flores-Ortega, 528               timely motion pro se in the trial court
U.S. 470 (2000), and deprived him of his            challenging the validity of his guilty plea
first appeal of right. In accordance with           on several grounds, including ineffective
the foregoing, we reverse the district              assistance of counsel. On April 10, 1987,
court’s order denying habeas relief and             trial counsel filed a “Motion for Leave to
remand with instructions that a writ be             Withdraw Guilty Plea,” which the trial
issued conditioned on the Commonwealth              court summarily denied without opinion.
reinstating nunc pro tunc Lewis’s right of          The trial court did not rule on Lewis’s pro
first appeal.                                       se motion and the parties indicate that it
                                                    remains pending. No appeal was taken
          I. BACKGROUND                             from either the judgment of sentence or the
                                                    trial court’s ruling denying the counseled
A.     Trial Proceedings                            motion to withdraw the guilty plea.

       Lewis is presently an inmate at the          B.     First Petition for Post-Conviction
State Correctional Institution at Pittsburgh               Relief Under State Law
where he is serving a 30 to 60 year
sentence imposed by the Pennsylvania                        On February 1, 1988, Lewis filed
Court of Common Pleas of Allegheny                  his first post-conviction petition pro se
County (“trial court”) following his                pursuant to the Pennsylvania Post
conviction on six counts of robbery and             Conviction Hearing Act (“PCHA”), 42
nine other criminal offenses.          Lewis        Pa.C.S. § 9541 et seq,1 in the Common
pleaded guilty to the charges on January            Pleas Court of Allegheny County. Counsel
27, 1987, and was sentenced on March 3,             was appointed and an amended petition
1987.     Lewis was sentenced to six                was subsequently filed. Among the issues
consecutive 5 to 10 year terms for each             raised in the PCHA petition was
robbery count, to be followed by eleven             ineffective assistance of counsel based on
years of probation for the bad checks and
firearms charges. Lewis was represented
by John Elash, a court-appointed attorney,                 1
                                                             The PCHA was repealed on April
during the guilty plea and sentencing
                                                    13, 1988, and superseded by the Post-
proceedings. Following the announcement
                                                    Conviction Relief Act (“PCRA”), 42
of the sentence, the trial judge informed
                                                    Pa.C.S. §§ 9541-9546. It appears from the
Lewis of his right to file post-trial motions
                                                    record that Lewis may have filed his
challenging the validity of his guilty plea
                                                    PCHA petition on November 25, 1987, see
or requesting modification of the sentence
                                                    Appendix, Vol. 1 at 105, 231, but we use
within 10 days of the proceeding.
                                                    the date cited in the magistrate judge’s
                                                    report and recommendation.

                                                2
trial counsel’s: (1) failure to move to                     merit. The only evidence
withdraw Lewis’s guilty plea when the                       indicating the desire to
trial court did not accept the alleged plea                 appeal was provided in the
agreement and sentence Lewis to 5 to 10                     appellant’s testimony at the
years on each robbery count running                         hearing on the PCHA
concurrently rather than consecutively; (2)                 petition.     However, in
failure to appeal the trial court’s denial of               reviewing the transcript of
Lewis’s motion for leave to withdraw the                    the hearing, we find nothing
guilty plea “despite having a meritorious                   in the record to support the
argument that the guilty plea was                           appellant’s testimony. The
unlawfully induced”; and (3) failure to file                PCHA court resolved the
a direct appeal from the denial of the post-                issue of credibility in favor
trial motion and judgment of sentence.2                     of trial counsel.        That
Appendix, Vol. 1 at 117. Lewis’s PCHA                       determination will not be
petition was denied following an                            disturbed on appeal. We
evidentiary hearing. Lewis appealed the                     therefore adhere to the
decision to the Superior Court, which                       holding in Dockins,...
addressed the sole of issue of whether                      providing that trial counsel
Lewis was denied his right of direct                        cannot be found ineffective
appeal. The Superior Court concluded that                   for failing to file a direct
its prior decision in Commonwealth v.                       appeal when not requested
Dockins, 471 A.2d 851 (Pa. Super. 1984),                    to do so.
which holds that “trial counsel cannot be
found ineffective for failing to file a direct       Appendix, Vol. II at 385. Lewis’s petition
appeal when not requested to do so,” was             for allocator to the Pennsylvania Supreme
controlling. The court affirmed the denial           Court appealing the Superior Court’s
of Lewis’s petition for post-conviction              ruling was denied.
relief under the PCHA based on its
conclusion that:                                     C.     Second Petition for State Post-
                                                            Conviction Relief
       [t]rial counsel admitted
       discussing the possible                              Lewis, represented by counsel, filed
       grounds for appeal and                        a second petition for post-conviction relief
       mentions that none of the                     on February 14, 1995, pursuant to
       grounds were of appellate                     Pennsylvania’s Post-Conviction Relief Act
                                                     (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
                                                     Lewis again contested the validity of his
       2                                             guilty plea and alleged trial counsel was
       Lewis raised these same claims in
                                                     ineffective on a number of grounds, to
the PCHA petition that he filed pro se.
                                                     include for failing to take direct appeal
Appendix, Vol. 1 at 110.

                                                 3
from the judgment of sentence which,                  ineffective for causing Lewis to enter a
Lewis contended, was contrary to the                  guilty plea that was not voluntary and
terms of his guilty plea.           Another           intelligent. Concluding that the state
evidentiary hearing was held, and the                 courts’ resolution of this question was not
PCRA petition denied thereafter. Lewis                contrary to clearly established law, the
appealed the decision to the Superior                 magistrate judge recom mended that
Court. The court disposed of the question             Lewis’s petition for habeas relief be
of Lewis’s right to a direct appeal in a              denied.
footnote, holding that “his claim was
meritless” since the court had previously                     Lewis timely filed objections to the
decided the claim against him when it                 magistrate’s report and recommendation,
adjudicated his first post-conviction                 arguing that the magistrate judge failed to
petition under the PCHA, and held that                (1) review his claim of ineffectiveness
Dockins precluded relief. Appendix, Vol.              arising from trial counsel’s failure to take
II at 389 n.2 (citing Commonwealth v.                 a direct appeal, and (2) made no
Lewis, No. 978 Pittsburgh 1989 (Pa.                   determination as to whether the record
Super. Ct. filed July 18, 1990)). Lewis’s             supported the state courts’ finding that he
petition for leave to appeal this decision to         had not asked trial counsel to take an
the Pennsylvania Supreme Court was                    appeal. Lewis further argued that “counsel
denied.                                               denied assistance by unconstitutionally
                                                      abandoning his assignment to my case
D.     Federal Habeas Petition                        during critical judicial proceedings without
                                                      filing an appeal.” Appendix, Vol. III at
        Following the exhaustion of his               567. In support of his objections, Lewis
state remedies, Lewis filed a timely pro se           cited to the Supreme Court’s decisions in
petition for writ of habeas corpus in the             Flores-Ortega and Douglas v. California,
United States District Court for the                  372 U.S. 353 (1963).          By order, the
Western District of Pennsylvania on                   district court adopted the magistrate
August 4, 2000. In his petition, Lewis                judge’s report and recommendation and
alleged, inter alia, that the decisions of the        denied Lewis’s petition for federal habeas
Commonwealth courts ran counter to                    relief.
clearly e s t a b li s h e d fe d e ra l l aw .
Specifically, Lewis contended that his trial                 Lewis filed a timely notice of
counsel was ineffective for failing to file a         appeal in this court. We granted Lewis’s
direct appeal from the trial court’s denial           application for a certificate of appealability
of his motion for leave to withdraw his               to consider whether trial counsel was
guilty plea and the judgment of sentence.             ineffective for failing file a direct appeal.
The district court referred the case to the
magistrate judge who addressed only the
question of whether trial counsel was

                                                  4
             II. DISCUSSION                                Supreme Court         of   the
                                                           United States; or
        A.    Standard of Review
                                                                  (2) resulted in a
        Our jurisdiction to review a district              decision that was based on
court’s order denying a state inmate’s                     an     unreasonable
petition for habeas relief is derived from                 determination of the facts in
28 U.S.C. §§ 1291, 2253. Where, as in                      light of the evidence
this case, “the District Court relied                      presented in the State court
exclusively on the state court record and                  proceeding.
did not hold an evidentiary hearing, our
review of its decision is plenary.” Moore           28 U.S.C. § 2254(d)(1). The AEDPA
v. Morton, 255 F.3d 95, 103 (3d Cir. 2001)          “modifie[d] the roles of federal habeas
(citation omitted). Lewis, a state inmate           courts in reviewing petitions filed by state
seeking relief from his state court                 prisoners.” Williams v. Taylor, 529 U.S.
conviction, filed his federal habeas petition       362, 403 (2000). Under this new statutory
in 2000; thus our adjudication of this case         rubric, “[w]e are to review the state court’s
is governed by the provisions of the                determinations on the merits only to
Antiterrorism and Effective Death Penalty           ascertain whether the court reached a
Act of 1996 (“AEDPA”), which, in                    decision that was ‘contrary to’ or an
relevant part, provides:                            ‘unreasonable       application’ of clearly
                                                    established Supreme Court law, or whether
              An application for a                  it made an ‘unreasonable determination’ of
       writ of habeas corpus on                     the facts.” Marshall v. Hendricks, 307
       behalf of a person in                        F.3d 36, 51 (3d Cir. 2002). “[T]he
       custody pursuant to the                      determination whether or not a rule is
       judgment of a State court                    clearly established at the time a state court
       shall not be granted with                    renders its final judgment of conviction is
       respect to any claim that                    a question as to which the ‘federal courts
       was adjudicated on the                       must make an independent evaluation.’”
       merits in State court                        Williams, 529 U.S. at 382 (quoting Wright
       proceedings unless the                       v. West, 505 U.S. 277, 305 (1992)
       adjudication of the claim–                   (O’Connor, J., concurring in judgment)).
                                                    The AEDPA does, however, confine the
              (1) resulted in a                     authorities on which federal courts may
       decision that was contrary                   rely in making this determination to the
       t o , o r i n v o lv e d a n                 decisional law of the Supreme Court, that
       unreasonable application of,                 is, the “Federal law, as determined by the
       clearly established Federal                  Supreme Court of the United States.” Id.
       law, as determined by the                    at 381-82 (quotation omitted).

                                                5
        The question in this case is whether       the AEDPA “bears only a slight
Lewis’s trial counsel was ineffective for          connection” to the nonretroactivity
not filing a notice of appeal. Lewis relies        principle articulated in Teague v. Lane,
on the Supreme Court’s decision in                 489 U.S. 288 (1989), and its progeny
Flores-Ortega, which held that criminal            except to the extent that “whatever would
defense attorneys have a constitutional            qualify as an old rule under our Teague
duty to consult and advise defendants of           line of cases will constitute ‘clearly
their appellate rights. Flores-Ortega was          established Federal law, as determined by
decided after Lewis’s conviction was               the Supreme Court of the United States’
finally adjudicated, thus we certified two         under § 2254(d)(1).” Williams, 529 U.S.
questions in our order granting Lewis’s            at 412 (citation omitted).             “The
appeal. The first asks whether, in light of        nonretroactivity principle prevents a
Strickland and Flores-Ortega, the                  federal court from granting habeas corpus
Commonwealth courts’ “application of the           relief to a state prisoner based on a [new]
rule of Commonwealth v. Dockins,                   rule announced after his conviction and
[supra], to appellant’s claim resulted in a        sentence became final.”         Caspari v.
decision that was ‘contrary to, or involved        Bohlen, 510 U.S. 383, 389 (1994).
an unreasonable application of clearly
established Federal law, as determined by                  As we have explained, “Teague
the Supreme Court of the United States[.]’         teaches that the federal courts in habeas
28 U.S.C.        § 2254(d)(1).”       As an        corpus proceedings should be reluctant to
antecedent to this question, we instructed         apply new rules of federal jurisprudence in
that the parties “first address the question       state court cases decided before such new
to what extent the holdings of Flores-             rules were handed down. Principles of
Ortega constitute ‘clearly established             comity and finality counsel that we
federal law.’ See Williams v. Taylor,              maintain a circumscribed scope of habeas
[supra].” We begin our inquiry addressing          review.” Banks v. Horn, 271 F.3d 527,
this latter question.                              543 (3d Cir. 2001), rev’d on other grounds
                                                   by Horn v. Banks, 536 U.S. 266 (2002),
          B.   Teague Analysis                     and reaff’d by Banks v. Horn, 316 F.3d
                                                   228 (3d Cir. 2003) [hereinafter “Banks
                     1.                            III”] (citing Teague, 489 U.S. at 308). 3
                                                   The Supreme Court has acknowledged that
       “The threshold question under the
AEDPA is whether [the petitioner] seeks
to apply a rule of law that was clearly                   3
                                                              Banks III is currently pending
established at the time his state-court
                                                   appeal before the Supreme Court. See
conviction became final.” Williams, 529
                                                   Beard v. Banks, 124 S. Ct. 45 (2003)
U.S. at 390. In Williams, the Supreme
                                                   (Mem) (granting petition for writ of
Court held that this limiting provision of
                                                   certiorari).

                                               6
discerning whether a rule is “old” or              defendant’s conviction became final.
“new” for retroactivity purposes is not            Second, we must survey the legal
without diff icult y, “[b]u t Teague               landscape to determine whether or not the
established some guidance for making this          case in question announced a new rule of
determination, explaining that a federal           constitutional law. Finally, if we determine
habeas court operates within the bounds of         that the case did announce a new rule, we
comity and finality if it applies a rule           must consider whether it fits into one of
‘dictated by precedent existing at the time        the two exceptions to nonretroactivity.”
the defendant’s conviction became final.’”         Banks III, 316 F.3d at 233 (citing Caspari,
Williams, 529 U.S. at 381 (quoting                 510 U.S. at 390). There is no dispute in
Teague, 489 U.S. at 301). Conversely, a            this case that the final adjudication of
“new” rule is one which “breaks new                Lewis’s conviction pre-dated Flores-
ground or imposes a new obligation on the          Ortega and the two exceptions to the
States or the Federal Government.” Id.             Teague bar do not apply. Thus we focus
The question of whether a rule is “old” or         our inquiry on step two, reviewing the
“new” for Teague purposes remains one              legal landscape to determine whether the
“which the ‘federal courts must make an            duty to consult announced in Flores-
independent evaluation.’” Id. at 382               Ortega was dictated by precedent clearly
(quoting Wright, 505 U.S. at 305                   established at the time Lewis’s conviction
(O’Connor, J., concurring in judgment)).           became final. 5 Williams, 529 U.S. at 412.
In accord with the AEDPA, federal courts
may rely only on the precedents of the
S up re m e Co urt in making this
determination. Id. at 412.

        Teague outlines a three-step
analysis for determining whether the
nonretroactivity principle prevents a
habeas petitioner’s reliance on a particular       context did not arise. We directed the
rule.4 “First, we must determine when the          parties sua sponte to brief the question.
                                                          5
                                                                  Wh ether Flo res-Ortega
                                                   constitutes an “old” rule for retroactivity
       4
         We note that, while the question          purposes is a question of first impression
of whether a particular rule is Teague-            in this Circuit. Our research indicates that
barred is a threshold question, a “federal         only one Federal Court of Appeals has
court may, but need not, decline to apply          considered this question on the merits. In
Teague if the State does not argue it.”            Daniel v. Cockrell, 283 F.3d 697, 708 (5th
Horn, 536 U.S. at 271. The district court          Cir. 2002), the Fifth Circuit held, without
did not consider Lewis’s Flores-Ortega             discussion, that Flores-Ortega constitutes
challenge, and the Teague issue in this            a “new” rule for Teague purposes.

                                               7
                         2.                                  appeal), or (2) that this particular
                                                             defendant reasonably demonstrated to
        In Flores-Ortega,6 the Supreme                       counsel that he was interested in
Court addressed the question of whether                      appealing.” 528 U.S. at 480. The Court
counsel may be found deficient for failing                   further explained that it “employ[ed] the
to file a notice of appeal absent specific                   term ‘consult’ to convey a specific
instruction from the defendant. Because                      meaning–advising the defendant about the
the question concerned whether counsel’s                     advantages and disadvantages of taking an
representation wa s con stitutiona lly                       appeal, and making a reasonable effort to
defective, the Court held that the familiar                  discover the defendant’s wishes.” Id. at
two-part test announced in Strickland                        478. Additionally, the Supreme Court
governed its inquiry. 7 528 U.S. at 476-77.                  instructed that courts undertaking this
Applying the Strickland standard to the                      inquiry, as with all ineffective assistance
particular facts before it, the Court held                   claims, “take into account all the
that “counsel had a constitutionally                         information counsel knew or should have
imposed duty to consult with the defendant                   known.” Id. at 480 (citing Strickland, 466
about an appeal when there is reason to                      U.S. at 690). With respect to Strickland’s
think either (1) that a rational defendant                   prejudice prong, the Court held that the
would want to appeal (for example,                           harmless error inquiry applied and that
because there are nonfrivolous grounds for                   relief could not be granted unless the
                                                             defendant could “demonstrate that there is
                                                             a reasonable probability that, but for
         6
          We begin our Teague analysis                       counsel’s deficient failure to consult with
with Flores-Ortega, as “[t]he crux of the                    him about an appeal, he would have timely
analysis when Teague is invoked... is                        appealed.” Id. at 484.
identification of the rule on which the
claim for habeas relief depends.” Wright,                           The parties do not dispute that
505 U.S. at 311 (Souter, J., concurring in                   Strickland’s reasonableness test was
judgment). See also Banks III, 316 F.3d at                   clearly established law in 1987 when
232.                                                         Lewis’s conviction became final, and that
         7                                                   it governs the adjudication of this case.
             Under Strickland, “[a] defendant
                                                             See Williams, 529 U.S. at 391 (“It is past
claiming ineffective assistance of counsel
                                                             question that the rule set forth in
in violation of the Sixth Amendment...
                                                             Strickland qualifies as ‘clearly established
must sh ow f i r s t t h a t coun sel’ s
                                                             Federal law[.]”). Rather, the point of
r e p r e s e n t a t i o n w a s o b j e c t i v e ly
                                                             contention rests with the Court’s second
unreasonable, and second, that counsel’s
                                                             holding in Flores-Ortega respecting the
deficient performance was prejudicial.”
                                                             duty to consult. Lewis contends the
United States v. Solis, 252 F.3d 289, 293
                                                             second holding of Flores-Ortega was
(3d Cir. 2001) (citing Flores-Ortega, 528
                                                             dictated by precedent, and urged at oral
U.S. at 476-77).

                                                         8
argument that the Supreme Court merely               the particular case, viewed as of the time
“clarified” the law as it applied to the facts       of counsel’s conduct.” 466 U.S. at 690
before it. Conversely, the Commonwealth              (emphasis added).         This standard
argues that this holding imposed a new               “provides sufficient guidance for resolving
burden on the States by “set[ting] forth a           virtually all ineffective-assistance-of-
new standard for the appellate process”              counsel claims.” Williams, 529 U.S. at
and is barred by Teague from application             391.
in this case.
                                                            For     these       re a sons ,   the
        We note as an initial matter that the        Common wealth’s emphasis on the
Commonwealth has provided little analysis            particular duty identified by the Flores-
and cites no authority for this position.            Ortega Court – counsel’s constitutional
When pressed at oral argument, counsel               obligation to consult with her client
for the Commonwealth could only point to             regarding appeal options – as a basis for
language in the Court’s opinio n                     classifying this rule as “new” for Teague
announcing the decision, “[t]oday... we              purposes is misplaced.            “That the
hold” and “the standard we announce                  Strickland test ‘of necessity requires a
today,” 528 U.S. at 480, language which              case-by-case e xa mination of th e
counsel took “to mean a new rule, if you             evidence,’... obviates neither the clarity of
announce the rule today.” See also                   the rule nor the extent to which the rule
Appellee Br. at 22. This language is                 must be seen as ‘established’ by this
hardly dispositive or even persuasive. The           [Supreme] Court.” Id. (quoting Wright,
point of the Teague analysis is to                   505 U.S. at 308 (Kennedy, J., concurring
determine whether a rule which post-dates            in judgment)).         Justice Kennedy’s
the State’s final adjudication of a habeas           concurrence in Wright v. West is
petitioner’s conviction may, without                 instructive on this point:
offending principles of comity and finality,
be retroactively applied. The language on                   If the rule in question is one
which the Commonwealth relies merely                        which of necessity requires
states the obvious (that the case announced                 a case-by-case examination
a rule on a particular day) and does not                    of the evidence, then we can
inform the second prong of our Teague                       tolerate a number of specific
inquiry. Further, we note that case law                     applications without saying
need not exist on all fours to allow for a                  that those applications
finding under Teague that the rule at issue                 themselves create a new
was dictated by Supreme Court precedent.                    rule.... Where the beginning
Strickland is a rule of general applicability               point is a rule of this general
which asks whether counsel’s conduct was                    application, a rule designed
objectively reasonable and conformed to                     for the specific purpose of
professional norms based “on the facts of                   evaluating a myriad of

                                                 9
              factual contexts, it                   “important decision.” See, e.g., Flores-
              will be the infrequent                 Ortega, 528 U.S. at 489 (Souter, J.,
              case that yields a                     concurring in part and dissenting in part);
              result so novel that it                Evitts v. Lucey, 469 U.S. 387 (1985);
              forges a new rule,                     Wainwright v. Sykes, 433 U.S. 72, 92
              one not dictated by                    (1977) (Burger, C.J., concurring) (noting
              precedent.                             the question of whether to appeal is a
                                                     “critical procedural decision”); Rodriguez
505 U.S. at 308-09 (emphasis added). Our             v. United States, 395 U.S. 327 (1969). It
review of the legal landscape, well-settled          follows then that since the decision to
at the time Lewis’s conviction became                appeal “cannot be made intelligently
final, compels us to conclude that Flores-           without appreciating the merits of possible
Ortega did not “yield[] a result so novel            grounds for seeking review, and the
that it forge[d] a new rule,” and that               potential risks to the appealing defendant,
Flores-Ortega’s application of the                   a lay defendant needs help before
Strickland standard was dictated by                  deciding.” 8 Flores-Ortega, 528 U.S. at
precedent and merely clarified the law as it         489 (Souter, J.) (emphasis added)
applied to the particular facts of that case.        (citations omitted).

       Indeed we need look no further than                  This proposition – that a defendant
Strickland in making this determination.             requires the advice of counsel to make an
I n a n n o u n c in g t h e o b jectiv e            informed decision respecting his right of
reasonableness standard, the Strickland              appeal – was hardly novel in 1987. It was
Court identified “certain basic duties” that         clearly established that the Sixth
its p r e c e dents and then-ex isting               Amendment’s guarantee of effective
professional norms established criminal
defense attorneys must carry out to
perform competently within the meaning                      8
                                                               We note that the Flores-Ortega
of Sixth Amendment. The Court included
                                                     majority and the Justices dissenting in part
among these duties “counsel’s [obligation
                                                     and joining in Justice Souter’s opinion
to] function as assistant to the defendant...
                                                     disagreed only on the question of whether
[and] the overarching duty to advocate the
                                                     counsel should have a per se duty to
defendant’s cause and the more particular
                                                     consult the defendant in all cases. See 528
duties to consult with the defendant on
                                                     U.S. at 481. The majority rejected such a
important decisions and to keep the
                                                     bright-line rule though recognizing it as
defendant inform ed of important
                                                     the “better practice,” id. at 479, whereas
developments in the course of the
                                                     Justice Souter would have held that
prosecution.” Strickland, 466 U.S. at 688
                                                     counsel is “almost always” obligated to
(emphasis added). The decision whether
                                                     consult her client about an appeal. Id. at
to appeal is unquestionably one such
                                                     488.

                                                10
assistance of counsel extended to the first             view comports with the prevailing
appeal as of right, and the Strickland                  professional norms existing in 1987, to the
s t a n d a r d a p p l i ed t o ap p e l l at e        extent these norms are denoted in the
representation. See generally Jones v.                  published standards of the American Bar
Barnes, 463 U.S. 745 (1983); Evitts, 469                Association (“ABA”). Flores-Ortega, 528
U.S. 387. The Supreme Court cases                       U.S. at 490, quoting ABA Standards for
respecting attorney competence on appeal                Criminal Justice 21-2.2(b) (2d ed. 1980)
recognized that lay defendants “may not                 (“Defense counsel should advise a
even be aware of errors which occurred at               defendant on the meaning of the court’s
trial,” Rodriguez, 395 U.S. at 330, and                 judgment, of defendant’s right to appeal,
required “the superior ability of trained               and of the probable outcome of
counsel in the ‘examination into the                    appealing.”). Promulgated in 1980, the
record, research of the law, and                        ABA’s standards pre-date Strickland. The
marshalling of arguments’” on appeal just               Supreme Court has cited with approval the
as at trial. Jones, 463 U.S. at 751 (quoting            use of “[p]revailing norms of practice as
Douglas v. California, 372 U.S. at 358).                reflected in the American Bar Association
Thus, though “the accused has the ultimate              standards and the like... [as] guides to
authority to make certain fundamental                   determining what is reasonable, but only
decisions regarding the case,... [including]            guides.” Strickland, 466 U.S. at 688;
whether to plead guilty, waive a jury,                  Flores-Ortega, 528 U.S. at 479. In light of
testify in his or her own behalf, or take an            the foregoing well-settled Supreme Court
appeal,” id. at 751 (citing Sykes, 433 U.S.             precedents respecting the constitutional
at 93, n.1 (Burger, C. J., concurring));                standard for appellate representation, we
ABA Standards for Criminal Justice 4-5.2,               believe reasonable jurists applying the
21-2.2 (2d ed. 1980)), counsel was                      Strickland standard to Lewis’s claim
constitutionally obligated to advise the                would have concluded that the Court’s
defendant respecting those decisions to                 “previous precedents... [did] not simply
allow for intelligent exercise of the                   ‘inform, or even control or govern’ the
particular right.          See, e.g., Rock v.           analysis, but instead... compel[led] the
Arkansas, 483 U.S. 44 (1987) (right to                  rule” in Flores-Ortega. Banks III, 316
testify on one’s behalf); Hill v. Lockhart,             F.3d at 234 (quoting Saffle v. Parks, 489
474 U.S. 52 (1985) (guilty plea; waiver of              U.S. 484, 491 (1990)) (add’l citation
right to jury trial). Flores-Ortega broke no            omitted).
new ground in holding the duty to consult
also extended to counsel’s obligation to                       Accordingly, we hold that Flores-
advise the defendant of his appellate                   Ortega’s application of the Strickland
rights.                                                 standard did not forge new ground or
                                                        otherwise impose a new obligation upon
      As Justice Souter’s concurring                    the States in announcing the duty to
opinion in Flores-Ortega evidences, this                consult, and this holding constitutes an

                                                   11
“old” rule which may be retroactively                and “unreasonable application” have
a p p l i ed t o L e w is ’s cl ai m of              independent meanings, each of which must
ineffectiveness.9                                    be given effe ct to accord with
                                                     congressional intent. 529 U.S. at 407.
           C. M erits Analysis                       Justice O’Connor read “contrary” to
                                                     employ its common meaning – that which
                     1.                              is “diametrically different,’ ‘opposite in
                                                     character or nature,’ or ‘mutually
       Having concluded that the duty to             opposed,’” id. at 405 – and concluded that
consult as announced in Flores-Ortega                a state-court decision is “contrary to”
constitutes an “old” rule for retroactivity          clearly established federal law if: (1) “the
purposes and clearly established law, we             state court applies a rule that contradicts
now move to the merits of Lewis’s claim              the governing law set forth in [the
and consider the second question certified           Supreme Court’s] cases,” id., or (2) “the
on this appeal: whether, in light of                 state court confronts a set of facts that are
Strickland and Flores-Ortega, the state              materially indistinguishable from a
courts’ application of the rule of                   decision of [the Supreme] Court and
Commonwealth v. Dockins resulted in a                nevertheless arrives at a result different
decision that was “contrary to” or involved          from [the Court’s] precedent.” Id. at 406.
an “unreasonable application” of clearly
established federal law. In Williams v.                      Justice O’Connor found the
Taylor, Justice O’Connor, writing for the            “unreasonable application” clause of the
majority, held that the terms “contrary to”          AEDPA “no doubt difficult to define,” id.
                                                     at 410, but held generally that this
                                                     provision is contravened if “a state-court
       9                                             decision correctly identifies the governing
         The parties do not contest that the
                                                     legal rule but applies it unreasonably to the
third holding of Flores-Ortega, the
                                                     facts of a particular prisoner’s case.” 10 Id.
prejudice standard, is an “old” rule and
clearly established law. To show prejudice
under this standard, “a defendant must
                                                            10
demonstrate that there is a reasonable                         Justice O’Connor posited that the
probability that, but for counsel’s deficient        Fourth Circuit’s additional holding that
failure to consult with him about an                 this clause includes any state-court
appeal, he would have timely appealed.”              decision which “unreasonably extends a
528 U.S. at 484. As the Supreme Court                legal principle from our precedent to a new
observed, “this prejudice standard breaks            context where it should not apply (or
no new ground, for it mirrors the prejudice          unreasonably refuses to extend that
inquiry applied in Hill v. Lockhart,                 principle to a new context where it should
[supra], and Rodriguez v. United States,             apply)’... may perhaps be correct, [but
[supra].” Id. at 485.                                observed] the classification does have

                                                12
at 407-08. The unreasonableness of a state              Dockins stands for the proposition that
court’s decision must be judged from an                 “[t]rial counsel can not be held ineffective
objective standard; “a federal habeas court             for failing to file an appeal when his client
may not issue the writ simply because that              has not asked him to do so.” Appendix,
court concludes in its independent                      Vol. II at 385 (Superior Court PCHA
judgment that the relevant state-court                  opinion citing Dockins) (add’l citation
decision applied clearly established federal            omitted). The dispositive question under
law erroneously or incorrectly. Rather,                 Dockins is whether the defendant directed
t h a t a p p l i c a t i o n m u s t a l s o be        his trial counsel to perfect an appeal; the
unreasonable.” Id. at 411; Mitchell v.                  inquiry begins and ends here. Pursuant to
Esparza, 124 S. Ct. 7, 11 (2003)                        Dockins, Lewis’s petitions for post-
(“unreaso nable application” is an                      conviction relief were denied based on the
“objectively unreasonable” application of               PCHA court’s conclusion, affirmed by the
clearly established law as opposed to                   Superior Court, that “the Defendant does
“incorrect”). Finally, we must accept the               have an absolute right to direct appeal, but
factual findings of the state court as                  they [defendants] must make efforts to
presumptively correct, a presumption the                contact an attorney in that respect and I
petitioner may only rebut with clear and                would submit based on Mr. Elash’s [trial
convincing evidence.              28 U.S.C. §           counsel] testimony and based upon the
2254(e)(1).                                             lack of any other substantive evidence that
                                                        he was not contacted within the 30 day
                      2.                                appeal period and, therefore, that there is a
                                                        waiver of the right to direct appeal.”
      The Pennsylvania courts decided                   Appendix, Vol. 1 at 172-73 (emphasis
Lewis’s post-conviction petitions on                    added). Dockins, then, is a per se rule of
independent state law grounds concluding                strict application which holds as a matter
that his ineffectiveness claim was                      of law that counsel acts reasonably in all
governed by Commonwealth v. Dockins.11                  cases where a notice of appeal is not filed,
                                                        and the defendant is silent. The Supreme

some problems of precision.” Williams,
529 U.S. at 409. Our decision today does
not require that we explore this question.              decision is not ‘contrary to... clearly
                                                        established Federal law’ simply because
       11
           We note that the mere fact that              the court did not cite our opinions.... [A]
the Commonwealth courts failed to                       state court need not even be aware of our
mention Strickland is not dispositive of the            precedents, ‘so long as neither the
question of whether the courts’ decisions               reasoning nor the result of the state-court
adjudicating Lewis’s claim were contrary                decision contradicts them.’” Esparza, 124
to clearly established federal law. As the              S. Ct. at 10 (quoting Early v. Packer, 537
Supreme Court has held, “[a] state court's              U.S. 3, 8 (2002)).

                                                   13
Court invalidated a similar rule in Flores-        circumstances. Whether a rule inures to
Ortega. The challenged rule in that case           the benefit or disadvantage of the
obligated counsel to file an appeal in all         defendant, Strickland does not permit the
cases where the defendant had not                  imposition of such bright-line rules. As
expressly instructed that an appeal not be         the Williams Court stressed, “we have
taken. 528 U.S. at 478. The Court quickly          c o n sistently d e c l in e d t o i m p o se
concluded that the rule, known as the              mechanical rules on counsel – even when
“Stearns rule,” 1 2 was con trary to               those rules might lead to better
Strickland, holding:                               representation.... ‘[T]he purpose of the
                                                   effective assistance guarantee of the Sixth
       Such a rule effectively                     Amendment is not to improve the quality
       imposes an obligation on                    of legal representation... [but rather]
       counsel in all cases either                 simply to ensure that criminal defendants
       (1) to file a notice of appeal,             receive a fair trial.’” 528 U.S. at 481
       or (2) to discuss the                       (quoting Strickland, 466 U.S. at 689).
       possibility of an appeal with               Thus, the Pennsylvania courts’ application
       the defendant, ascertain his                of Dockins to Lewis’s ineffectiveness
       wishes, and act accordingly.                claims was “contrary to” clearly
       We reject this per se rule as               established law.
       inconsistent             with
       Strickland’s holding that                          The Commonwealth does not
       “the performance inquiry                    seriously contest this conclusion. Rather
       must be reasonable                          the Commonwealth contends on brief that
       considering                all              “the state courts found that counsel did
       circumstances....” [T]hat                   ‘consult’ with appellant... [regarding] his
       alone mandates vacatur and                  appellate rights.” Appellee Br. at 26.
       remand.                                     However, the Commonwealth backed
                                                   away from this assertion at oral argument,
Id. (quoting Strickland, 466 U.S. at 688)).        conceding that none of the state courts
The Dockins rule operates in much the              which reviewed Lewis’s claims during the
same manner: whereas the Stearns rule              two rounds of post-conviction review
automatically deemed counsel ineffective           made a finding as to whether Lewis’s
for failing to take an appeal where the            court-appointed attorney consulted him
defendant was silent, Dockins holds that           regarding his appellate rights following the
counsel always acts reasonably and may             entry of the guilty plea, his sentencing or
not be found ineffective in such                   the trial judge’s denial of his post-trial



       12
         See United States v. Stearns, 68
F.3d 328 (9th Cir. 1995).

                                              14
motion.13 Where the state court has not                      Flores-Ortega obligates counsel to
made a material finding, the usual course            advise “the defendant about an appeal
is to remand to the district court to hold an        when there is reason to think either (1) that
evidentiary hearing on the question. See             a rational defendant would want to appeal
Solis, 252 F.3d at 294-95 (remanding                 (for example, because there are
under 28 U.S.C. § 2255 for evidentiary               nonfrivolous grounds for appeal), or (2)
hearing). However, in this case such a               that this particular defendant reasonably
hearing would likely be unproductive as              demonstrated to counsel that he was
the relevant events occurred over 16 years           interested in appealing.” 528 U.S. at 480.
ago. See Riley v. Taylor, 277 F.3d 261,              Lewis pleaded guilty and does not seek to
294 (3d Cir. 2001) (en banc). Further, we            appeal from a jury trial. The Supreme
believe the issue of trial counsel’s                 Court has held this is a “highly relevant
representation, following the sentencing             factor” in deciding whether counsel was
proceeding and the trial judge’s ruling              duty-bound to advise a defendant about his
denying the motion for leave to withdraw             appellate rights, though the fact of a guilty
the guilty plea, was sufficiently litigated          plea is not dispositive. Id. In guilty-plea
during the two evidentiary hearings held             cases, our Strickland analysis must
on Lewis’s post-conviction applications in           “consider such factors as whether the
state court to permit our adjudication of            defendant received the sentence bargained
this question.                                       for as part of the plea and whether the plea
                                                     expressly reserved or waived some or all
                                                     appeal rights.” Id. This case is unique in
       13                                            that whether or not a plea agreement
             The Superior Court’s PCHA
                                                     existed, Lewis is entitled to federal habeas
opinion mentions that “[t]rial counsel
                                                     relief stemming from trial counsel’s failure
admitted discussing possible grounds for
                                                     to advise him of his right to appeal from
appeal and mentions that none of the
                                                     the trial court’s denial of his motion to
grounds were of appellate merit.”
                                                     withdraw the guilty plea.
Appendix, Vol. II at 385. Trial counsel
testified at the PCHA hearing that “I know
                                                             Based on our review of the
he [Lewis] was upset [after he was
                                                     transcripts of the evidentiary hearings held
sentenced], but I do have a recollection of
                                                     in state court, it is clear that Elash did not
telling him that he probably didn’t have
                                                     meet with Lewis or otherwise attempt to
any appellate rights that were viable.” Id.
                                                     contact him after the senten cing
at 163. Counsel for the Commonwealth
                                                     proceeding or the post-trial motion was
conceded at oral argument that this
                                                     denied, although Lewis indicated an
testimony is ambiguous at best and could
                                                     interest in challenging his conviction. At
not support a finding that trial counsel
                                                     best, Elash could only recall speaking
consulted with Lewis within the meaning
                                                     briefly with Lewis in court following
of Flores-Ortega, and the Pennsylvania
                                                     sentencing, stating, “I know he was upset,
courts did not make such a finding.

                                                15
but I do have a recollection of telling him          withdraw the guilty plea that he filed 28
that he probably didn’t have any appellate           days late, evidences an inattention to his
rights that were viable.” Appendix, Vol. 1           client’s interests, a neglect which caused
at 163. Regarding Lewis’s attempts to                Lewis to forfeit his right of appeal. While
contact him after the sentencing and the             trial counsel’s testimony alone supports
post-trial motion was denied, Elash                  this finding, our decision is further
testified, “I don’t have those records. You          buttressed by the contemporaneous
know, if he did, I wouldn’t – he may                 evidence of Lewis’s attempt to timely
have... he might have had trouble getting            assert his appellate rights. The trial judge
in touch with me.” Id. It is not clear from          denied the post-trial motion filed by Elash
the hearing transcripts whether Elash was            on April 16, 1987, and Lewis’s time to
aware that Lewis had filed a motion pro se           appeal expired 30 days later on May 16,
to withdraw the guilty plea, but the motion          1987. On May 3, 1987, Lewis wrote to the
was entered on the trial docket and Elash            Clerk of the Court stating, “[s]ince my
should have been aware of it. See id. at             sentence of 30 to 60 years on March 3,
105. In any case, Elash testified that he            1987, I have received no correspondence
filed the motion to withdraw only after              from John Elash[,] Esq. my attorney at
Lewis instructed him to do so, apparently            hand, and I have no idea, what is
by correspondence. Id. at 162. At a                  happening, or what will happen. So im
minimum, this should have put Elash on               [sic] asking for an extension of time, to
notice that Lewis may have been interested           prepare my case in the proper order, and
in appealing the trial judge’s ruling and his
conviction. See Flores-Ortega, 528 U.S.
at 480 (citation omitted) (instructing
                                                     motion, Lewis alleged his plea was invalid
“courts must take into account all the
                                                     “due to inducement of promise from
information counsel knew or should have
                                                     Defendant[’]s attorney to combine all
known”).
                                                     charges as one (1) for one (1) lesser
                                                     sentence,” and ineffective assistance
       Trial counsel’s testimony, coupled
                                                     resulting from trial counsel “not raising or
with the bare-boned post-trial motion14 to
                                                     arguing” to enforce the plea agreement and
                                                     advising him to plead guilty. Id. at 84.
                                                     Even if trial counsel believed any post-trial
       14
            The motion Elash filed on                motion or appeal would be frivolous, his
Lewis’s behalf was three sentences in                proper course would have been to follow
length and, as the basis for the motion,             the procedures set forth in Anders v.
stated only that “Defendant avers that his           California, 386 U.S. 738 (1967), or
plea was not knowingly or intelligently              Commonwealth v. McClendon, 434 A.2d
entered.” Appendix, Vol. 1 at 87. No                 1185 (Pa. 1981), and seek permission to
factual predicate was established nor legal          withdraw from the case after giving notice
authority cited. Conversely, in his pro se           to Lewis of his intention.

                                                16
without any knowledge of the legal                   probability that, but for counsel’s deficient
system.” Appendix, Vol. 1 at 92. In June             performance, he would have appealed.
of 1987, Lewis also wrote letters to the             Flores-Ortega, 528 U.S. at 484. The
Pennsylvania State Bar Association and               contemporaneous evidence of Lewis’s
the Disciplinary Counsel reporting Elash             desire to challenge his conviction satisfies
for alleged misconduct in the handling of            this requirement. In addition, Lewis has
his case and complaining that he had not             also identified nonfrivolous points to raise
heard from Elash since the sentencing,               on an appeal, among them ineffective
despite attempts to contact him. Id. at 94-          assistance of counsel resulting from (1)
95. Finally, on July 13, 1987, Lewis wrote           trial counsel’s failure to object and move
to the Clerk of the Court requesting                 to enforce the alleged plea agreement
information about “the present state, of             when he was sentenced to consecutive
any appeal you may have submitted to the             terms of 5 to 10 years of imprisonment on
Court in my behalf, and who is the lawyer            the six robbery counts rather than to
of record.” Id. at 96.                               concurrent terms, and (2) trial counsel’s
                                                     failure to timely move to withdraw the
        We believe this record compels a             guilty plea when he did not get the benefit
finding that trial counsel’s conduct was             of the alleged plea agreement. 15 See id. at
objectively unreasonable. We can think of            486 (“showing nonfrivolous grounds for
no strategic reason to explain why Elash             appeal may give weight to the contention
failed to follow-up with Lewis either                that the defendant would have appealed”).
following the sentencing or after the trial          Lewis may raise these and all other claims
court denied the motion to withdraw, and             on his direct appeal.
the Commonwealth offers none. The
ultimate decision to appeal rests with the                       III. CONCLUSION
defendant. Jones, 463 U.S. 745. Thus,
even if Elash concluded that any appeal                     The district court’s order denying
would be frivolous, he could not disregard           the petition for a writ of habeas corpus is
the evidence of Lewis’s unequivocal desire           reversed. This matter is remanded to the
to challenge his sentence and guilty plea,
and abandon his client at this critical stage
in the proceedings. See Evitts, 469 U.S. at                 15
                                                              We note that although Lewis was
394 (counsel’s procedural error depriving
                                                     facing 10 to 20 years on each robbery
the defendant of his appeal rights “difficult
                                                     count, a decision to withdraw the guilty
to distinguish... from that of some who had
                                                     plea under the facts of this case would not
no counsel at all”), citing Anders, 386 U.S.
                                                     have been objectively irrational. Lewis
738 (add’l citation omitted).
                                                     was 36 years old and did not have a prior
                                                     record when he was convicted and
     Finally, we hold that Lewis has
                                                     sentenced to 30 to 60 years of
demonstrated that there is a reasonable
                                                     incarceration.

                                                17
district court with instructions that it issue
a writ of habeas corpus conditioned upon
the Commonwealth’s reinstatement of
Lewis’s right of first appeal within 45 days
from entry of the district court’s order
granting the petition.




                                                 18
