                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 12-1475
                                      ____________

                                ERIC C. MCCOLLISTER,
                                                             Appellant

                                            v.

SUPERINTENDENT CAMERON; THE DISTRICT ATTORNEY OF MONTGOMERY
      COUNTY; and THE ATTORNEY GENERAL OF PENNSYLVANIA


                                      ___________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2-11-cv-00525)
                      District Judge: Honorable Lawrence F. Stengel
                                       ___________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 30, 2013

            Before:    JORDAN, VANASKIE AND COWEN, Circuit Judges

                                 (Filed: August 15, 2013)
                                       ___________

                                       OPINION
                                      ___________

VANASKIE, Circuit Judge.

      Eric C. McCollister appeals the denial of his petition for a writ of habeas corpus

submitted pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability on the
issue of whether McCollister‟s waiver of counsel was made knowingly and intelligently

in light of the fact that, during the waiver colloquy, he was advised that his sentencing

range was 40 to 80 years‟ imprisonment, with no mandatory minimum prison term, when

in fact he faced a mandatory minimum prison term of 25 years and a maximum term of

life imprisonment under Pennsylvania‟s “three strikes” law, 42 Pa. Cons. Stat. Ann. §

9714. Because the state court‟s rejection of McCollister‟s challenge to the adequacy of

the waiver of counsel colloquy was neither contrary to nor an unreasonable application of

clearly established federal law, we will affirm the District Court‟s denial of McCollister‟s

habeas petition.

                                             I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       McCollister was charged with burglary, criminal trespass, robbery, aggravated

assault, and recklessly endangering another person arising out of a home invasion and

assault in July of 2006. Dissatisfied with representation provided by four separate

attorneys, McCollister requested that he be allowed to represent himself at trial, with

appointed counsel acting in a standby capacity. Following a lengthy and comprehensive

colloquy, during which McCollister was informed that his sentencing exposure was 40 to

80 years in prison with no mandatory minimum prison term, the trial court accepted the

waiver of counsel as “knowing, intelligent and voluntary.” (App. 64.)

       On May 2, 2008, McCollister was convicted by a jury on all counts. It was not

until four months after the jury returned its verdict, however, that the Commonwealth

                                             2
filed a Notice of Intent to Seek Twenty-Five Year Mandatory Sentence due to Conviction

of Third Violent Crime Offense. McCollister‟s two prior qualifying offenses included

burglary of a residence in 1987, and burglary of a residence in 1989.1 McCollister was

sentenced to an aggregate term of 40 years to life imprisonment, including a 25-year

mandatory minimum sentence pursuant to 42 Pa. Cons. Stat. Ann. § 9714 (a)(2).

McCollister filed a timely direct appeal to the Pennsylvania Superior Court.

       On direct appeal, McCollister, among other things, asserted that the waiver of

counsel colloquy was inadequate because it did not accurately apprise him of the

sentencing range he faced, including the fact that there would be a mandatory minimum

prison term of 25 years. The Superior Court rejected this assertion, explaining:

       [McCollister] contends the court‟s waiver of counsel colloquy did not
       advise him of the permissible sentencing range. . . . [McCollister] asserts
       he was “confused” and “frustrated” during the colloquy, and the court
       failed to advise him of the potential for a “two strikes” mandatory
       minimum sentence pursuant to 42 Pa. C.S. § 9714(a)(2). [McCollister]
       insists he would not have waived his right to counsel at trial if he had
       known his minimum sentence could be mandatory. [McCollister] avers his
       waiver of counsel was involuntary and unknowing.
                                             ***
       Rule 121 of the Pennsylvania Rules of Criminal Procedure sets forth the
       requirements for an effective waiver of the right to counsel and states in
       pertinent part:
               Rule 121. Waiver of Counsel (A) Generally.
               (1) The defendant may waive the right to be represented by
               counsel.



       1
        The Commonwealth contends that it was not until after the conclusion of
McCollister‟s trial that it learned that the structures burglarized by McCollister more than
twenty years earlier were occupied, triggering the 25-year mandatory minimum prison
term and maximum prison term of life under Pennsylvania‟s three strikes law. See 18
Pa.C.S. § 9714(a)(2).
                                             3
      (2) To ensure that the defendant's waiver of the right to
      counsel is knowing, voluntary, and intelligent, the judge or
      issuing authority, at a minimum, shall elicit the following
      information from the defendant:
      (a) that the defendant understands that he or she has the right
      to be represented by counsel, and the right to have free
      counsel appointed if the defendant is indigent;
      (b) that the defendant understands the nature of the charges
      against the defendant and the elements of each of those
      charges;
       (c) that the defendant is aware of the permissible range of
      sentences and/or fines for the offenses charged;
      (d) that the defendant understands that if he or she waives the
      right to counsel, the defendant will still be bound by all the
      normal rules of procedure and that counsel would be familiar
      with these rules;
      (e) that the defendant understands that there are possible
      defenses to these charges that counsel might be aware of, and
      if these defenses are not raised at trial, they may be
      lost permanently; and
      (f) that the defendant understands that, in addition to
      defenses, the defendant has many rights that, if not timely
      asserted, may be lost permanently; and that if errors occur
      and are not timely objected to, or otherwise timely raised by
      the defendant, these errors may be lost permanently.
                                     ***
      (C) Proceedings Before a Judge. When the defendant seeks to
      waive the right to counsel after the preliminary hearing, the
      judge shall ascertain from the defendant, on the record,
      whether this is a knowing, voluntary, and intelligent waiver of
      counsel.
      (D) Standby Counsel. When the defendant's waiver of
      counsel is accepted, standby counsel may be appointed for the
      defendant. Standby counsel shall attend the proceedings and
      shall be available to the defendant for consultation and
      advice. Pa. R.Crim.P. 121(A), (C), (D).

 “A waiver colloquy must ... always contain a clear demonstration of the
defendant‟s ability to understand the questions posed to him during the
colloquy.” Commonwealth v. McDonough, 571 Pa. 232, 236 n.1, 812 A.2d
504, 507 n.1 (2002). For example, the court should inquire about the
defendant‟s age, educational background, and basic comprehension skills.
Id.

                                    4
              After a thorough review of the record, the briefs of the parties, the
       applicable law, and the well-reasoned opinion of the [Trial Judge], we
       conclude [McCollister‟s] issues merit no relief. The trial court opinion
       comprehensively discusses and properly disposes of the questions
       presented. (See Trial Court Opinion at 4-24 (finding ... [McCollister‟s
       waiver of counsel was knowing, intelligent and voluntary where (a) court
       conducted meticulous colloquy record, informing [McCollister] of nature of
       charges and permissible range of sentences for offenses charged, (b) court
       advised [McCollister] of his right to object to evidence, but court had no
       duty to teach [McCollister] laws of evidence, (c) [McCollister] had
       opportunity to state on the record that he was confused, but instead chose to
       participate in colloquy, (d) [McCollister] stated under oath and on the
       record that no one had forced or threatened him to waive counsel, and that
       no one had promised him anything in exchange for his waiver, (e)
       ultimately [McCollister] stated three times under oath that he desired to
       waive his right to counsel.))

(Commonwealth v. McCollister, No. 1401 EDA 2009, pp. 14, 20-22 (Pa. Super. Ct. Aug.

30, 2010) (Memorandum)).

       On January 25, 2011, McCollister filed a pro se Petition for Writ of Habeas

Corpus. Among the issues presented in the habeas petition was that he was denied his

right to counsel because the plea colloquy did not accurately set forth the sentencing

range to which he was exposed, including the 25 year mandatory minimum prison term

under Pennsylvania‟s three strikes rule. The Magistrate Judge to whom the § 2254

petition was referred recommended denial of relief on this claim, observing that the state

court‟s finding that the waiver colloquy was adequate “is neither contrary to, nor an

unreasonable application of, United States Supreme Court precedent.” (October 18, 2011

Report and Recommendation at 31.) The District Court overruled McCollister‟s

objections to the Report and Recommendation and denied the habeas petition. This

appeal followed.

                                             5
       On August 27, 2012, we granted McCollister‟s request for a certificate of

appealability solely on the issue of whether his waiver of right to trial counsel was made

knowingly and intelligently. We also appointed counsel to represent McCollister on

appeal.2

                                              II.

       The District Court had jurisdiction under 28 U.S.C. § 2241(a) and § 2254(a). We

have appellate jurisdiction under 28 U.S.C. § 1291 and § 2253(c)(1).

       Where, as here, a state court has decided the merits of a petitioner‟s habeas claim,

relief in federal court may be granted only if the state court‟s adjudication of the claim:

              (1) resulted in a decision that was contrary to or involved in an
       unreasonable application of, clearly established Federal Law, as determined
       by the Supreme Court of the United States;
              (2) resulted in a decision that 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)(1), (2). In this case, the facts are not in dispute, and McCollister

does not contend that the state court‟s determination of his Sixth Amendment right to

counsel claim was contrary to a precedent of the Supreme Court of the United States.

Instead, he limits his argument to the assertion that the state court rejection of his Sixth

Amendment claim represented an unreasonable application of clearly established federal

law.

       The starting point of analysis in a case such as this “is to identify the „clearly

established Federal law, as determined by the Supreme Court of the United States‟ that

       2
        We acknowledge with appreciation the fine efforts of court-appointed counsel in
presenting arguments on behalf of McCollister.
                                              6
governs the habeas petitioner‟s claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449

(2013). The Supreme Court has clearly established that there is a right to waive counsel

and proceed pro se, provided that the waiver is knowing and voluntary. See Faretta v.

California, 422 U.S. 806, 814 (1975). See also Iowa v. Tovar, 541 U.S. 77, 87-88

(2004). The Supreme Court, however, “ha[s] not . . . prescribed any formula or script to

be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541

U.S. at 88. Specifically, there is no Supreme Court precedent holding that the failure to

apprise a defendant of a potential statutory mandatory minimum prison term renders a

waiver of counsel unknowing or involuntary. Nor is there any High Court ruling that

erroneous advice pertaining to the sentencing range faced by the defendant renders that

defendant‟s waiver of counsel invalid.

       What the Supreme Court has required is that the defendant “be made aware of the

dangers and disadvantages of self-representation, so that the record will establish that „he

knows what he is doing and his choice is made with eyes open.‟” Faretta, 422 U.S. at

835. The comprehensive colloquy undertaken by the Trial Judge in this case leaves no

doubt that McCollister made his decision to waive representation by counsel with his

eyes wide open. McCollister knew that he faced an aggregate prison range of 40 to 80

years in prison, which, effectively, is the prison term he received. While not informed

that the maximum prison term could be life, this omission was inconsequential in view of

McCollister‟s age at the time of the plea colloquy (39 years-old.) Moreover, the

statutory mandatory minimum came into play only upon the Commonwealth‟s filing of

its notice of intention to proceed under the Pennsylvania three strikes law, and

                                             7
Pennsylvania law only requires that such notice be given after a conviction. See 42 Pa.

Cons. Stat. Ann. § 9714(d). Thus, at the time of the colloquy, the sentencing range

information communicated to McCollister was accurate. Under these circumstance, the

Pennsylvania Superior Court‟s determination that McCollister validly waived his right to

counsel is not an unreasonable application of precedents of the Supreme Court of the

United States.

       McCollister‟s reliance upon our decisions in United States v. Booker, 684 F.3d

421 (3d Cir. 2012), United States v. Jones, 452 F.3d 223 (3d Cir. 2006), and United

States v. Moskovits, 86 F.3d 1303 (3d Cir. 1996), is unavailing. Although those

decisions, which involved direct appellate court review of the validity of a waiver of

counsel, bear some factual similarities to McCollister‟s situation, they cannot “be used to

refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal

rule that [the Supreme] Court has not announced.” Marshall, 133 S. Ct. at 1450. It is

only the precedents of our High Court that set the boundaries of our review of the validity

of a state court conviction. See id. at 1450-51 (“Although an appellate panel may, in

accordance with its usual law-of-the-circuit procedures, look to circuit precedent to

ascertain whether it has already held that the particular point in issue is clearly

established by Supreme Court precedent, it may not canvass circuit decisions to

determine whether a particular rule of law is so widely accepted among the Federal

Circuits that it would, if presented to this Court, be accepted as correct.”) (Citations

omitted.) In light of the fact that the Supreme Court has not held that the omission of

information pertaining to a statutory mandatory minimum or an inconsequential error

                                              8
with respect to the maximum prison term voids an otherwise effective waiver of counsel,

it cannot be said that the Pennsylvania Superior Court‟s ruling in this case is “an

unreasonable application of the „general standard[s]‟ established by the Court‟s

assistance- of-counsel cases.” Id.at 1450



                                            IV.

       For the foregoing reasons, we will affirm the District Court‟s judgment.




                                             9
