                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-1691
                                     ____________

                                 JEFFREY L. KEITH,

                                                   Appellant
                                              v.

                        COMMONWEALTH OF PA;
               STATE ATTORNEY GENERAL OF PENNSYLVANIA
                             ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. No. 3-08-cv-01998)
                    District Judge: Honorable Richard P. Conaboy
                                    ____________

                            Argued May 17, 2012
     Before: SMITH and FISHER, Circuit Judges, and STEARNS,* District Judge.

                                  (Filed: June 8, 2012)

Peter A. Levin (Argued)
1927 Hamilton Street
Philadelphia, PA 19130
       Counsel for Appellant

Matthew D. Fogal (Argued)
Franklin County Office of District Attorney
157 Lincoln Way East

      *
        The Honorable Richard G. Stearns, District Judge for the United States District
Court for the District of Massachusetts, sitting by designation.

                                              1
Chambersburg, PA 17201
     Counsel for Appellees

                                       ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Jeffrey Keith (“Keith”) appeals the District Court’s denial of his habeas petition

under 28 U.S.C. § 2254. He submits that the State court unreasonably applied Strickland

v. Washington, 466 U.S. 668 (1984), in rejecting his ineffective assistance of counsel

claim. For the reasons stated below, we will affirm the District Court.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On August 24, 2002, Keith was involved in a physical altercation with Tori Smith

(“Smith”). According to the sentencing court, Keith followed Smith home, held her,

restrained her in her home by locking the door, punched her in the face, knocked her

down, threatened to kill her, and attempted to sexually assault her. Keith was eventually

charged with making terroristic threats (in violation of 18 Pa. Cons. Stat. § 2706),

unlawful restraint (in violation of 18 Pa. Cons. Stat. § 2902), indecent assault (in

violation of 18 Pa. Cons. Stat. § 3126(a)(1)), burglary (in violation of 18 Pa. Cons. Stat.




                                              2
§ 3502(a)), and two counts of simple assault (in violation of 18 Pa. Cons. Stat.

§ 2701(a)(1)).

       On December 27, 2002, on the advice of trial counsel, Keith pled nolo contendere

to one count of simple assault, one count of making terroristic threats, and one count of

criminal trespass (in violation 18 Pa. Cons. Stat. § 3503), which was reduced from the

initial burglary charge. After the sentencing hearing on March 5, 2003, Keith was

sentenced to consecutive sentences of 12 to 24 months’ imprisonment for simple assault,

17 to 60 months’ imprisonment for making terroristic threats, and 17 to 60 months’

imprisonment for criminal trespass. At the end of the hearing, Keith’s counsel informed

the court that Keith was considering withdrawing his plea. The court informed Keith

about the specific procedures he would have to follow to withdraw his plea or to

challenge his sentence. Keith filed a timely appeal of his judgment of sentence, which

was denied.

       Next, Keith filed a petition under Pennsylvania’s Post-Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq., alleging that trial counsel was ineffective for

failing to withdraw his plea before the sentencing court imposed his sentence. The first

PCRA hearing was held on December 1, 2005. Keith testified that after reviewing his

1997 pre-sentence investigation report (“PSR”)1 during the sentencing hearing, but before

his sentence was actually imposed, he informed trial counsel he wanted to withdraw his

       1
        This PSR, prepared on November 26, 1997, was regarding a prior conviction for
which Keith served his sentence and was on parole when he committed the instant
offenses against Smith.

                                             3
plea. According to Keith’s testimony, trial counsel told him to “wait” and did not move

to withdraw his plea until after his sentence was imposed.

       The PCRA hearing continued on April 25, 2006, with the testimony of Keith’s

trial counsel. Trial counsel testified that during the sentencing hearing, the court gave her

and Keith an opportunity to review Keith’s 1997 PSR, and this was when Keith told her

that he was considering withdrawing his plea. According to trial counsel’s testimony, she

subsequently “explained to [Keith] that if he withdrew his plea at that point[,] he would

[face] all of the charges for which he had been [initially] charged[,] including the felony

one burglary,” which could subject him to Pennsylvania’s three strikes rule. And, “at that

point, [] Keith agreed to go forward with the sentencing.” Trial counsel stated that if

Keith was clear that he wanted to withdraw his plea, she would have followed his

direction.

       The Franklin County Court of Common Pleas dismissed Keith’s PCRA petition.

The court credited the testimony of trial counsel over that of Keith, determining that

Keith ultimately did not instruct trial counsel to withdraw the plea. The Superior Court

denied Keith’s appeal on the same basis, and the Supreme Court of Pennsylvania denied

Keith’s petition for appeal.

       Keith’s initial 28 U.S.C. § 2254 habeas petition in the U.S. District Court for the

Middle District of Pennsylvania was denied because he had not exhausted all available

state court remedies. He filed his petition again on November 4, 2008, after meeting the

exhaustion requirement. The District Court denied his petition. Keith filed a timely

                                             4
Notice of Appeal, and this Court issued a Certificate of Appealability (“COA”) on the

issue of whether “trial counsel [was] ineffective in failing to move to withdraw

Appellant’s nolo contendere plea prior to the state trial court’s imposition of sentence.”2

                                             II.

       The District Court had subject matter jurisdiction under 28 U.S.C. § 2254(a). We

have appellate jurisdiction under the same. Pursuant to the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), where the habeas petitioner’s claim was adjudicated on

the merits in state court, a federal court’s review is limited to determining whether the

state court decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1), or whether the decision “was 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)(2). When a federal court reviews a habeas petition

challenging a state court decision, “determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

                                             III.

       Keith submits that under AEDPA, the PCRA court unreasonably applied

Strickland’s two-prong test for determining ineffective assistance of counsel, which


       2
        At the time the COA was granted, the record was incomplete and trial counsel’s
testimony at the PCRA hearing was not available.

                                              5
requires a showing of (1) counsel’s deficient performance and (2) prejudice. See

Strickland, 466 U.S. at 687. He argues that trial counsel was deficient when she failed to

move to withdraw Keith’s nolo contendere plea before the State court imposed its

sentence and that this prejudiced Keith by preventing him from going to trial. The PCRA

court’s decision was based on a factual finding that Keith ultimately did not instruct

counsel to withdraw his nolo contendere plea prior to sentencing. Thus, this Court must

first determine whether Keith has shown by clear and convincing evidence that this

factual determination was unreasonable in light of the record. See 28 U.S.C.

§ 2254(d)(2), (e)(1); Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011). If the factual

determination was reasonable, then the Court must determine whether the PCRA court

unreasonably applied clearly established federal law to this fact. See Rountree, 640 F.3d

at 537.

          In finding that Keith ultimately did not instruct trial counsel to withdraw his plea,

the PCRA court credited the testimony of trial counsel over that of Keith. When a state

court arrives at a factual finding based on credibility determinations, the habeas court

must determine whether that credibility determination was unreasonable. See Rice v.

Collins, 546 U.S. 333, 339 (2006). Here, the PCRA court was not unreasonable for

crediting the testimony of trial counsel over that of Keith. It was reasonable for the

PCRA court to believe that Keith decided to accept the plea after considering the serious

consequences of going to trial and to give less weight to Keith’s self-serving testimony,

which was the only evidence that contradicted trial counsel’s statements. Moreover, even

                                                 6
if “[r]easonable minds reviewing the record might disagree about [trial counsel’s]

credibility, [] on habeas review that does not suffice to supersede the [State] court’s

credibility determination.” Rice, 546 U.S. at 341-42. Because the state court’s factual

findings are presumed correct, and Keith failed to rebut this presumption by clear and

convincing evidence, the PCRA court’s finding that Keith ultimately did not instruct

counsel to withdraw his plea was reasonable under AEDPA.

       Next, this Court must determine whether the PCRA court unreasonably applied

clearly established federal law to its factual finding that Keith did not instruct counsel to

withdraw his plea. The parties agree that in determining whether counsel provided

ineffective assistance, the Supreme Court in Strickland clearly established a two-prong

test, requiring the defendant to show that (1) counsel provided deficient assistance and

(2) there was prejudice as a result. 466 U.S. at 687.

       Keith presented no argument before the PCRA court that even if he had not

instructed trial counsel to withdraw the plea, trial counsel’s performance was deficient.

Nor did he contend that absent his instruction, trial counsel was responsible for revisiting

his initial desire to withdraw the plea. Thus, the State court’s determination that counsel

did not provide deficient performance under Strickland was reasonable, and it did not

need to reach the issue of prejudice. See Strickland, 466 U.S. at 697. Accordingly, the

PCRA court’s decision denying Keith’s ineffective assistance claim did not involve an




                                              7
unreasonable determination of facts or an unreasonable application of clearly established

federal law.3

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s denial of the habeas

petition.




       3
         This Court requested supplemental briefing on the applicability of the Supreme
Court’s recent decision in Lafler v. Cooper, 1332 S. Ct. 1376 (2012), to this case. Lafler
is distinguishable because there, all parties conceded that counsel’s performance was
deficient, so the Supreme Court had no occasion to address the first prong of the
Strickland test, which is at issue here. Id. at 1391. Moreover, in Lafler, the defendant
submitted that he was prejudiced by foregoing the plea offer based on counsel’s advice.
Id. at 1385. In contrast, Keith contends that he was prejudiced by accepting the plea offer
and foregoing trial. Thus, Lafler is inapplicable to the instant case.

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