                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1230
                                      _____________

                             KENNETH PHILLIP JACKSON,
                                                 Appellant

                                              v.

                        SUPERINTENDENT SOMERSET SCI;
                       ATTORNEY GENERAL PENNSYLVANIA
                               _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-15-cv-00871)
                     Magistrate Judge: Honorable Robert C. Mitchell
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 13, 2017

           Before: CHAGARES, JORDAN, and FUENTES, Circuit Judges.

                                (Filed: November 2, 2017)
                                    _______________

                                        OPINION*
                                     _______________




       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Kenneth Jackson appeals the denial of his petition for a writ of habeas corpus. For

the reasons set forth below, we will affirm.

I.     Background

       Kenneth Jackson pleaded guilty in Pennsylvania state court to one count of third-

degree murder, one count of abuse of a corpse, two counts of theft by deception, two

counts of forgery, and one count of identity theft. That plea was entered after trial had

already begun in the case, which arose from Jackson’s murder of his uncle and use of his

uncle’s identification papers to cash social security checks. Prior to sentencing, Jackson

sent the trial judge a pro se letter and motion asking to withdraw his guilty plea. At the

time, Jackson was represented by court-appointed counsel Patrick Thomassey. At

Jackson’s July 19, 2004 sentencing hearing, the judge denied Jackson’s pro se motion to

withdraw his guilty plea.

       After denying the motion, the judge turned his attention to Thomassey’s

representation of Jackson. Thomassey said he was in a “precarious position” because of

his contentious relationship with Jackson. (App. at 130.) After the judge reminded

Thomassey that the court had appointed him as defense counsel, Thomassey replied, “I

will do as instructed by the court.” (App. at 130.) Jackson then stated, “I’m asking for a

new counsel to be appointed to me. I do not want this man.” (App. at 130.) The judge,

after listening to Thomassey and Jackson, said, “Well, it’s apparent to the court, Mr.

Jackson, you don’t want Mr. Thomassey to represent you anymore. And Mr. Thomassey

doesn’t want to represent you anymore. Is that accurate?” (App. at 132.) Jackson

                                               2
replied, “Yes.” (App. at 132.) Recalling that Jackson had already had a Public Defender

with whom he had difficulty working, the judge told Jackson, “Then you will represent

yourself. I’m not going to appoint you yet another lawyer.” (App. at 132.) The judge

instructed Thomassey to “have a seat.” (App. at 133.) Jackson represented himself

during the remainder of the sentencing hearing. That was not the first time the judge and

Jackson spoke about Jackson’s dissatisfaction with Thomassey. Immediately prior to

Jackson’s trial, the judge had given Jackson three options: (1) hire a private attorney; (2)

continue to be represented by Thomassey; or (3) proceed on his own without an attorney.

The judge warned Jackson then that if he did not cooperate with Thomassey, he would be

on his own.

       The judge ultimately sentenced Jackson to a term of imprisonment of 240 to 480

months on the homicide charge and a term of imprisonment of two-and-a-half years to

five years for each of the five counts of theft and forgery. The several terms of

imprisonment were to run consecutively. The judge did not impose an additional

sentence on the charge for abuse of a corpse. Although the record demonstrates that all

parties understood the plea agreement to contemplate a sentence in accordance with the

applicable guidelines range, Jackson’s sentence on the five theft and forgery counts

exceeded Pennsylvania’s sentencing guidelines range. The judge appointed counsel to

assist Jackson with his post-sentence motions and his appeal. On July 29, 2004,

Jackson’s appointed direct appeal counsel filed a motion to reconsider the sentence,

which was denied by operation of law on December 2, 2004 pursuant to Pennsylvania

Rule of Criminal Procedure 720. See Pa. R. Crim. P. 720(B)(3)(a) (“If the judge fails to

                                             3
decide the [post-sentence] motion within 120 days, or to grant an extension … , the

motion shall be deemed denied by operation of law.”).

       Jackson appealed to the Pennsylvania Superior Court. His direct appeal counsel

raised a single issue: whether the trial court erred in denying Jackson’s pre-sentence

request to withdraw his guilty plea. The Superior Court affirmed Jackson’s conviction

and sentence. On January 3, 2007, the Pennsylvania Supreme Court denied Jackson’s

Petition for Allowance of Appeal.

       Jackson then filed a pro se petition pursuant to Pennsylvania’s Post-Conviction

Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et. seq. After the court appointed the

Office of Conflicts Counsel to represent Jackson on post-conviction review, counsel filed

an amended PCRA petition raising four issues: (1) appellate counsel was ineffective for

failing to challenge the sentencing judge’s imposition of sentences above the guidelines

range on the theft and forgery charges; (2) appellate counsel was ineffective for failing to

challenge the sentencing judge’s imposition of consecutive sentences; (3) trial counsel

was ineffective throughout voir dire, trial, plea, and sentencing proceedings; and (4)

Jackson was denied counsel at sentencing, in contravention of United States v. Cronic,

466 U.S. 648 (1984). The PCRA court denied Jackson’s PCRA claims but re-imposed

sentence to correct a clerical error. Through counsel, Jackson filed a motion for

reconsideration, which was denied, and then filed a notice of appeal to the Superior

Court, challenging only the sentences imposed in connection with the non-homicide

charges.



                                             4
       That PCRA appeal raised four issues: (1) the re-imposed sentence was illegal

because it violated the terms of the plea agreement; (2) the re-imposed sentence was an

abuse of discretion and manifestly excessive because the sentences ran consecutively; (3)

trial counsel was ineffective throughout the underlying proceedings; and (4) the

sentencing court erred in refusing to appoint Jackson counsel at the sentencing hearing.

The Superior Court affirmed the PCRA court’s denial of Jackson’s petition. In relevant

part, the Court held that Jackson had waived his argument that his sentence violated his

plea agreement because he did not raise the issue on direct appeal and his amended

PCRA petition did not argue that direct appeal counsel was ineffective for failing to

challenge the sentence on that basis. The Court further held that Jackson had waived his

argument that he was denied counsel at sentencing because he failed to raise the issue on

direct appeal. The Pennsylvania Supreme Court denied Jackson’s Petition for Allowance

of Appeal on June 23, 2015.

       Jackson next filed the present petition for a writ of habeas corpus, which was

denied on December 7, 2015. We granted Jackson’s request for a certificate of

appealability to address only whether “counsel on direct appeal rendered ineffective

assistance in failing to argue that [Jackson’s] sentence violates the plea agreement

because sentencing was to be within the standard guidelines range for all counts,” and

whether Jackson “was denied his Sixth Amendment right to counsel at sentencing.”

(Certificate of Appealability, dated August 11, 2016, at 1.) The certificate of

appealability also directed counsel to “address whether procedural default applies to

either issue, and the impact, if any, of [Martinez v. Ryan, 566 U.S. 1 (2012)].”

                                             5
(Certificate of Appealability, dated August 11, 2016, at 1.) Because we conclude that

Jackson’s claims on appeal are procedurally defaulted, we will affirm the denial of

Jackson’s petition for a writ of habeas corpus.

II.    Discussion1

       The Magistrate Judge exercised jurisdiction under 28 U.S.C. §§ 636(c)(1), 1331,

and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the

Magistrate Judge denied Jackson’s petition without conducting an evidentiary hearing,

our review is plenary. Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005).

       A petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is

procedurally defaulted if a state court has declined to consider the petitioner’s claims

based on a failure to meet the state’s procedural requirements. Coleman v. Thompson,

501 U.S. 722, 729-30 (1991); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). A

federal habeas court is thus prohibited from hearing a petitioner’s claims if the state

court’s denial rested on independent and adequate state procedural grounds, unless the

petitioner can demonstrate “cause” for the default and “prejudice” resulting from the

alleged violation. Coleman, 501 U.S. at 750; Johnson, 392 F.3d at 556.

       The Superior Court held that Jackson had waived both issues that we identified in

the certificate of appealability. First, it held Jackson had waived his argument that his

sentence was illegal for violating the terms of his plea agreement. The basis of the


       1
         The court below denied Jackson’s habeas corpus petition on the merits. Because
we affirm on the basis that Jackson has not established cause to excuse his procedural
default of the claims that we certified for appeal, we do not reach the merits of Jackson’s
claims.
                                              6
waiver was direct appeal counsel’s failure to raise that issue, and failure to raise in the

amended PCRA petition direct appeal counsel’s ineffectiveness for failing to raise the

issue. Second, the Superior Court held that Jackson had waived his argument that he was

denied counsel at his sentencing hearing because he failed to raise that issue on direct

appeal.2 See 42 Pa. Cons. Stat. § 9544(b) (“[A]n issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review, on appeal or

in a prior state postconviction proceeding.”). Jackson is time barred from further

litigating those issues through the Pennsylvania state courts. 42 Pa. Const. Stat.

§ 9545(b). He has thus procedurally defaulted on the two claims certified for appeal by

the certificate of appealability. See Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528,

542 (3d Cir. 2014) (“A claim is procedurally defaulted if the petitioner failed to exhaust

that claim in state court and if state procedures prohibit the petitioner from later

presenting the claim in state court.”). We can only proceed to the merits of Jackson’s

claims if cause and prejudice exist to excuse the procedural default, Coleman, 501 U.S. at

750; Johnson, 392 F.3d at 556, but Jackson has not established cause for his procedural

default.


       2
          That the Superior Court opinion contains an alternative holding on the merits
does not alter our conclusion that Jackson’s denial-of-counsel argument is procedurally
defaulted. We have previously emphasized that, even if a state court provides an
alternative holding, “the adequate and independent state ground doctrine [still] requires
the federal court to honor a state holding that is a sufficient basis for the state court’s
judgment[.]” Johnson, 392 F.3d at 558 (quoting Harris v. Reed, 489 U.S. 255, 264 n.10
(1989)). Here, it is clear that the procedural ground for denying Jackson’s claim (i.e.,
waiver) was a distinct and separate basis for the Superior Court’s decision. Because we
are not reaching the merits of Jackson’s claims, we decline to address the Superior
Court’s alternative holding.
                                               7
       Jackson does not appear to dispute that he procedurally defaulted on the issues

identified in the certificate of appealability. Rather, he maintains that his procedural

default of both issues is excused by the United States Supreme Court’s holding in

Martinez v. Ryan, 566 U.S. 1 (2012). (See Opening Br. at 6 (“The above issues may have

been procedurally defaulted in the state courts, but this Court should excuse the

procedural default pursuant to Martinez … .”).)

       In Martinez, the Supreme Court created an equitable exception to the rule

announced in Coleman v. Thompson that ineffectiveness of post-conviction counsel does

not establish cause to excuse a procedural default. Davila v. Davis, 137 S. Ct. 2058, 2065

(2017) (citing Martinez, 566 U.S. at 16-17). The Martinez Court held that, in situations

where state law prevents an inmate from litigating claims of ineffective assistance of trial

counsel on direct appeal, the ineffective assistance of state post-conviction counsel can

serve as cause to overcome the procedural default of a substantial ineffective assistance

of trial counsel claim. 566 U.S. at 17.

       After we granted Jackson’s request for a certificate of appealability, the Supreme

Court, in Davila v. Davis, declined to extend the Martinez exception to cover claims of

ineffective assistance of appellate counsel. 137 S. Ct. at 2065. The Supreme Court thus

clarified that ineffectiveness of post-conviction counsel does not establish cause to

excuse the procedural default of an “ineffective assistance of appellate counsel” claim.

Id.

       Davila definitively forecloses Jackson’s first claim over which we granted appeal:

whether Jackson’s direct appeal counsel was ineffective for failing to object that his

                                              8
sentence was illegal for violating the terms of his plea agreement. Jackson argues that his

procedural default of that claim should be excused pursuant to Martinez because his

“PCRA counsel was ineffective for failing to properly raise the plea bargain issue on

appeal.” (Opening Br. at 12.) Because the Supreme Court rejected that precise argument

in Davila, it is plain that Jackson has failed to establish cause for his procedural default of

that claim.

       Jackson largely fails to address the second claim that we allowed him to appeal,

i.e., whether the state sentencing court denied his Sixth Amendment right to counsel at

the sentencing hearing. Instead, he focuses on whether trial counsel Thomassey rendered

ineffective assistance of counsel at sentencing. The record demonstrates, however, that

Thomassey was not acting as Jackson’s lawyer at the sentencing hearing. The sentencing

judge explicitly told Jackson, “you will represent yourself[,]” and instructed Thomassey

to “have a seat.” (App. at 132-33.) The issue of Thomassey’s alleged ineffectiveness at

sentencing is thus outside the scope of the certificate of appealability and is not properly

before us.3 28 U.S.C. § 2253(c)(3); 3d Cir. L.A.R. 22.1(b); see also Miller v. Dragovich,

311 F.3d 574, 577 (3d Cir. 2002) (refusing to address argument that was outside the

scope of the relevant certificate of appealability).

       To the extent that Jackson does address the Sixth Amendment denial of counsel

claim we certified for appeal, he argues that we should excuse the procedural default of



       3
         We again note that we do not reach the propriety of the sentencing judge’s
decision to compel Jackson to proceed pro se.

                                               9
that claim pursuant to the Martinez exception.4 But Martinez, as the Supreme Court

recently clarified, only allows the ineffectiveness of post-conviction counsel to excuse the

procedural default “of a single claim—ineffective assistance of trial counsel … .”

Davila, 137 S. Ct. at 2062. The Martinez exception does not apply here for two distinct

reasons. First, we did not grant a certificate of appealablity as to Jackson’s ineffective

assistance of trial counsel claim, which means Martinez is inapplicable to the claim at

issue. Second, Davila mandates that Jackson could not establish cause to overcome the

default even if he argued (which he does not) that post-conviction counsel was ineffective

for failing to raise a claim on collateral review that direct appeal counsel was ineffective

for failing to appeal the denial of counsel claim. Id. at 2065. Accordingly, Jackson has

failed to establish cause for the procedural default of his Sixth Amendment denial of

counsel claim.

III.   Conclusion

       For the foregoing reasons, we will affirm the denial of Jackson’s petition for a writ

of habeas corpus.




       4
         Jackson makes this argument primarily in connection with the ineffective
assistance of trial counsel claim he attempts to bring, which, as discussed above, falls
outside the scope of the certificate of appealability. He advances no separate argument
for why we should excuse the procedural default of his Sixth Amendment denial of
counsel claim, but we construe his argument to also refer to the Sixth Amendment denial
of counsel claim that we did certify for appeal.

                                             10
