                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-3459
                                   _____________

                               JAMES A. BURKE, JR.,
                                               Appellant

                                           v.

JOHN KRESTES; THE DISTRICT ATTORNEY OF THE COUNTY OF BERKS; THE
       ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                           _____________

                   On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                                (D.C. No. 08-cv-04286)
                   District Judge: Honorable Mary A. McLaughlin
                                   _____________

                    Submitted Under Third Circuit L.A.R. 34.1(a),
                                 October 4, 2011

        BEFORE: McKEE, Chief Judge, FUENTES, COWEN, Circuit Judges

                          (Opinion Filed: October 14, 2011)
                                  _____________

                             OPINION OF THE COURT
                                 _____________


FUENTES, Circuit Judge.

      Appellant James A. Burke, Jr. appeals the District Court’s adoption of a magistrate

judge’s Report and Recommendation, dismissing Burke’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. We affirm.

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                                             I.

       Because we write for the parties, we discuss only the facts relevant to our

conclusion. Burke pled guilty to second-degree murder in the Commonwealth of

Pennsylvania Court of Common Pleas. Prior to his plea allocution before the court,

Burke signed a “defendant’s statement accompanying request to enter a guilty plea,”

where Burke acknowledged understanding the various constitutional rights he was

waiving. Burke handwrote answers to each question, signed the bottom of every page,

and affirmed that he read and understood the entire document. His counsel and an

assistant district attorney also certified the document. Specifically, Burke signed that he

understood his rights to a presumption of innocence, a trial by a jury, and to confront his

accusers and that by entering a plea of guilty, he was waiving those rights. He also

certified that he understood that he was pleading guilty to second degree murder and that

the maximum penalty that could be imposed on him was life imprisonment.

       During his plea allocution, the judge did not advise Burke of the constitutional

rights he was foregoing by entering a plea of guilty. However, the judge did ask Burke if

he understood the purpose of the plea and its significance. Burke responded that he did.

He also stated that he reviewed the plea statement and was satisfied with the

representation of his counsel. At his co-defendant’s trial, Burke testified that he expected

to receive a life sentence.

       During his sentencing, Burke made an oral motion to withdraw his guilty plea,

which the sentencing judge denied. Thereafter, he was sentenced to life imprisonment.



                                             2
After his sentencing, Burke filed a motion to withdraw his guilty plea, which was never

ruled upon.

         Burke filed three petitions for relief under Pennsylvania’s Post-Conviction Relief

Act (“PCRA”), 42 PA. CONS. STAT. § 9541 et seq. (2011), each time challenging his

plea and the effectiveness of his prior counsel. All the petitions were denied.

         In his federal habeas petition, he raised over thirty grounds for relief. In a 116-

page opinion, the District Court adopted the recommendations of the magistrate judge

and dismissed the petition on the merits, but issued a certificate of appealability on four

claims. Specifically, the district court certified the following issues for appeal: whether

(1) the trial court erred by conducting an inadequate colloquy to determine whether

Burke’s plea was entered knowingly and voluntarily; (2) the state appeals court erred by

finding that the plea was entered knowingly and voluntarily; (3) his counsel was

ineffective for failing to ensure that the trial court conducted an adequate plea colloquy;

and (4) whether his counsel was ineffective for failing to ensure that his post-trial motion

to withdraw his guilty plea was disposed of timely.

                                                              II.

         After carefully reviewing the record and the submissions of the parties, we find no

basis for disturbing the District Court's thorough and persuasive opinion and judgment.1


         1
           The District Court had jurisdiction pursuant to 28 U.S.C. § 2254 and we have appellate jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. When a district court does not hold an evidentiary hearing, we exercise
plenary review over a district court’s habeas decision. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009). Under
the Anti-Terrorism and Effective Death Penalty Act of 1996 (“ADEPA”), we afford the state courts’ legal and
factual determinations considerable deference. Palmer v. Hendricks, 592 F.3d 386, 391-392 (3d Cir. 2010).
However, “if a properly preserved claim was not addressed by the state court on the merits, the deferential standards
of AEDPA do not apply.” Id. at 392. In such instances, a “federal habeas court must conduct a de novo review over
pure legal questions and mixed questions of law and fact.” Id. (quoting Appel v. Horn, 250 F.3d 203, 2010 (3d Cir.

                                                          3
“Under Boykin, it is crucial that the record reveal not only that a defendant was aware of

his rights, but also that he intelligently and understandingly waived them.” Taylor v.

Horn, 504 F.3d 416, 440 (3d Cir. 2007) (internal quotation marks omitted). Here, the

plea colloquy coupled with Burke’s signed statement, his testimony at his co-defendant’s

trial, and evidence that Burke discussed the consequences of his plea with his counsel

was sufficient to establish that Burke pled guilty aware of the rights he was waiving and

of the possible penalties he faced. Thus, his guilty plea was entered knowingly and

voluntarily and is not deficient. Similarly, as his plea was not deficient, his counsel did

not fall below an objective standard of reasonableness and Burke was not prejudiced

under Strickland v. Washington, 466 U.S. 668, 688 (1984). The District Court properly

dismissed the ineffective assistance of counsel claims that relate to his plea.

        Burke’s last claim—that his counsel was ineffective for failing to take steps to

ensure that Burke’s post-trial motion was addressed—implicates his speedy trial and due

process rights. In deciding this claim, we examine the four Barker factors: (1) length of

delay; (2) reason for delay; (3) defendant’s assertion of his rights, and (4) prejudice to the

defendant. See United States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009); Heiser v. Ryan,

15 F.3d 299, 303-5 (3d Cir. 1994) (applying the same four factors for post-sentencing

delays). The District Court correctly held that despite the first three factors weighing in

Burke’s favor, he is unable to demonstrate prejudice because, as in Heiser, the delay did

not impair Burke’s ability to prove his habeas claims and he did not suffer any “unusual

2001)). Given that only the lower PCRA courts addressed whether Burke’s plea was adequate, the District Court
conducted a de novo review of Burke’s plea related claims. While we do not necessarily adopt this conclusion, we
note that since Burke’s claim fails a de novo review, it would also fail a more deferential ADEPA review.


                                                        4
or specific” anxiety relating to the delay. See Heiser, 15 F.3d at 303-4, 305. We affirm

the District Court’s holding that Burke was not prejudiced by the delay and that his

counsel was not constitutionally ineffective.

                                            III.

              The District Court is affirmed.




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