Holiday v. Varner, (3rd Cir. 2006)

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N O T PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-1451

STEVEN HOLIDAY,

A p p e lla n t

v. B E N JA M IN VARNER, Superintendent SCI-Smithfield; THE OFFICE OF THE

D IS T R IC T ATTORNEY OF PHILADELPHIA; LYNNE ABRAHAM; THE

A T T O R N E Y GENERAL OF PENNSYLVANIA, *TOM CORBETT

*{Substituted pursuant to Rule 43(c))

On Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . Civil No. 04-cv-00827)

D is tric t Judge: Hon. Clifford Scott Green

Submitted Under Third Circuit LAR 34.1(a)

A p ril 18, 2006

B e f o re : SLOVITER, AMBRO and MICHEL * , Circuit Judges

(F ile d April 19, 2006)

OPINION

M IC H E L , Circuit Judge.

S te v e n Holiday appeals from an order of the United States District Court for the E a ste rn District of Pennsylvania, denying without an evidentiary hearing his habeas c o rp u s petition filed pursuant to 28U.S.C. § 2254, as amended by the Anti-terrorism and E f f ec tiv e Death Penalty Act ("AEDPA"). We affirm the district court's denial of habeas re lie f , but on alternate grounds. In short, we disagree with the finding that Holiday was p ro c e d u ra lly barred from seeking federal habeas review of his ineffective assistance c laim s against appellate counsel, but we find, on the merits, that he is not entitled to h a b e as relief or an evidentiary hearing thereon.

O n December 9, 1997, Holiday was convicted of first degree murder, criminal c o n sp ira c y and carrying a firearm. He was sentenced to life imprisonment without parole, p lu s two additional terms of two-and-a-half to five years, one consecutive and one c o n c u rre n t. The Superior Court affirmed his conviction on September 28, 1999, re je c tin g , inter alia, three alleged instances of ineffective assistance of trial counsel p re s e n te d by new counsel. Commonwealth v. Holiday, 747 A.2d 413 (Pa. Super. 1999).

The Supreme Court of Pennsylvania denied his request for further appellate review on A p ril 27, 2000. Commonwealth v. Holiday, 757 A.2d 929 (Pa. 2000).

O n March 12, 2001, Holiday filed a petition under the Pennsylvania P o s t-C o n v ic tio n Relief Act ("PCRA"), alleging ineffective assistance of trial counsel for three additional reasons and, by extension, ineffective assistance of appellate counsel (a d if f ere n t lawyer) for failing to raise those three reasons on direct appeal. Specifically, he a rg u e d that trial counsel failed to: (1) object to a "progression charge" and request an " u n a b le to agree" instruction that would have allowed the jury to consider a lesser charge w ith o u t first unanimously acquitting the defendant of the greater offense; (2) request a " n o adverse inference" instruction with respect to the defendant's failure to testify; and (3 ) object to an instruction that defined "reasonable doubt" as that which "would cause a re a so n a b ly careful and sensible person to pause, hesitate, or refrain from acting upon a m a tte r of highest importance in his or her own affairs or to his or her own interest." T h e PCRA petition was dismissed by the Philadephia County Court of Common P le a s ("PCRA court") on June 26, 2002. In the opinion that followed on July 12, 2002, th e PCRA court explained that Holiday's claims pertaining to trial counsel had been w a iv e d because they were not raised at the first point in the proceedings when he was no lo n g e r represented by that lawyer on direct appeal. Nonetheless, the PCRA court went on to address each of the alleged instances of ineffective assistance on the merits, finding that trial counsel could not be deemed ineffective for the reasons alleged in Holiday's p e titio n and, therefore, appellate counsel could not be deemed ineffective for failing to ra is e those reasons on appeal in addition to the three claims of ineffective assistance that a p p e lla te did raise.

O n June 30, 2003, the Superior Court affirmed, adopting the rationale of the P C R A court and attaching a copy of that opinion. Commonwealth v. Holiday, 832 A.2d 5 3 7 (Pa. Super. 2003). With respect to Holiday's ineffective assistance claims against his c o u n se l on direct appeal, Bruce Wolf, the Superior Court reasoned: W e find that Holiday has failed to prove his entitlement to relief u n d e r the PCRA. In both his PCRA petition and his brief to this Court, H o lid ay baldly asserts at the end of each argument regarding trial counsel's in e f f e c tiv e n e s s that direct appeal counsel was ineffective for failing to raise th e se claims. . . . Mere boilerplate allegations appended to waived claims of tr ia l court or trial counsel's error are insufficient to prove an ineffectiveness c la im under the PCRA.

. . . [Holiday] does not even attempt to show how Attorney Wolf's f a ilu re to raise these claims on direct appeal lacked any reasonable basis d e sig n e d to effectuate his interests or how the outcome would have differed h a d these claims been raised. Indeed, Holiday never discusses Attorney W o lf 's performance, except to say that the claims he did raise on direct a p p e al, which included three claims of trial counsel's ineffectiveness, "had n o chance of prevailing." Holiday's bald allegations of direct appeal c o u n s e l's ineffectiveness cannot undo the waiver of the underlying claims.

Holiday, therefore, has failed to establish his entitlement to relief.

E v e n if Holiday had properly pled his claims of direct appeal co u n sel's ineffectiveness, however, we would agree with the PCRA court th a t none of them has merit for the reasons discussed in its opinion.

(Citations omitted).

O n December 23, 2003, the Supreme Court of Pennsylvania denied Holiday's petition for allo ca tur. Commonwealth v. Holiday, 841 A.2d 529 (Pa. 2003).

O n February 25, 2004, Holiday filed a petition for writ of habeas corpus in the U n ite d States District Court for the Eastern District of Pennsylvania, making the same a rg u m e n ts he had raised in his PCRA petition. On September 30, 2004, Magistrate Judge A rn o ld C. Rapoport issued a Report and Recommendation, finding that the ineffective assistan ce claims against trial counsel were procedurally defaulted because the state court h a d relied on "an independent and adequate state ground" ­ i.e., waiver ­ in denying re lie f . Coleman v. Thompson, 501 U.S. 722 , 735 (1991). He also concluded that Holiday w a s procedurally barred from federal habeas review of his claims against appellate c o u n se l. He explained that Holiday did not comply with the pleading requirements for la ye re d ineffectiveness of counsel claims and his claims were therefore waived.

Magistrate Judge Rapoport recommended denying the habeas petition with prejudice and d ism issin g it without an evidentiary hearing. On January 19, 2005, Senior Judge Clifford S c o tt Green approved and adopted the magistrate's report.

A timely appeal followed. On June 2, 2005, this Court granted a certificate of a p p e ala b ility on (1) whether the district court erred in finding the ineffective assistance c la im s against appellate counsel procedurally defaulted and (2) if so, whether, on the m e rits , Holiday was entitled to habeas relief.

B ec au se no evidentiary hearing was conducted by the district court, this court's re v iew is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001). "In habeas, if th e decision of the last state court to which the petitioner presented his federal claims f a irly appeared to rest primarily on those claims, or to be interwoven with those claims a n d did not clearly and expressly rely on an independent and adequate state ground, a f e d e r a l court may address the petition." Coleman v. Thompson, 501 U.S. at 735; see also M ic h ig a n v. Long, 463 U.S. 1032, 1041-41 (1983). Here, the Pennsylvania Superior C o u rt did not clearly or expressly indicate that it considered Holiday's ineffective a ss is ta n c e claims with respect to appellate counsel waived as insufficiently pled. On the c o n tra ry, it focused on whether the "boilerplate allegations" were "insufficient to prove a n ineffectiveness claim under the PCRA," i.e., an evaluation of the merits that a federal h ab ea s court is free to review. In other words, the court seemed to rely on appellant's f a ilu re to adduce adequate proof before the PCRA court.

N o r are we convinced that, at the time Holiday filed his PCRA petition on M a rc h 12, 2001, there was a clearly established procedural rule for pleading a layered in e f fe c tiv e n e ss claim on state collateral review. In Commonwealth v. Marrero, 748 A.2d 2 0 2 (Pa. 2000), the majority rejected the view of the concurring opinion, that appellant's c laim of ineffective assistance of appellate counsel was waived when it was only g e n e ra lly asserted in the statement of questions presented without further support in the b rie f . Id. at 203, n.1. The following year, the issue was revisited: In light of the Marrero opinions, it is apparent that competent PCRA c o u n se l must, in pleadings and briefs, undertake to develop, to the extent p o s s ib le , the nature of the claim asserted with respect to each individual f a c e t of a layered ineffectiveness claim, including that which relates to a p p e lla te counsel. While a majority of this Court would presently continue to allow a degree of latitude in this regard, the distinction between sufficient a n d insufficient claims will likely undergo further development over time in th e context of specific cases; therefore, to ensure a petitioner's entitlement to merits review, it is critical that post-conviction counsel avoid arguments o n the fringes of appropriate presentation.

Commonwealth v. Williams, 782 A.2d 517, 525-26 (Pa. 2001) (emphasis added). Indeed, it was not until September 29, 2003, three months after the Superior Court affirmed the d e n ia l of Holiday's PCRA petition, that the Supreme Court of Pennsylvania set forth a clea r explanation of the "plead and prove" requirement of 42 Pa.C.S. § 9543(a)(2)(ii).

[ W ]e now clarify that in order for a petitioner to properly raise and prevail o n a layered ineffectiveness claim, sufficient to warrant relief if m e rito rio u s , he must plead, present and prove the effectiveness of Counsel 2 (appellate counsel), which as we have seen, necessarily reaches back to the actions of Counsel 1 (trial counsel). To preserve (plead and present) a c la im that Counsel 2 was ineffective in our hypothetical situation, the p e titio n e r must: (1) plead, in his PCRA petition, that Counsel 2 was in e f fe c tiv e for failing to allege that Counsel 1 was ineffective for not o b je c tin g to the erroneous jury instruction . . . and (2) present argument on, i.e ., develop, each prong of the Pierce test as to Counsel 2's representation, in his briefs or other court memoranda. Then, and only then, has the p e titio n e r preserved a layered claim of ineffectiveness for the court to re v ie w ; then, and only then, can the court proceed to determine whether the p e titio n e r has proved his layered claim.

C o m m o n w ea lth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (citations omitted).

O n the merits, however, the standard of review under AEDPA is deferential. We c a n n o t grant relief unless the PCRA court's decision was "contrary to, or involved an u n re a so n a b le application of, clearly established Federal law, as determined by the S u p r e m e Court of the United States" or "based on an unreasonable determination of the f a c ts in light of the evidence presented in the State court proceeding." 28U.S.C.

§ 2254(d). The "contrary to" prong is met if a state court "applied a rule that contradicts th e governing law as set forth in the Supreme Court's cases," or "confronted a set of facts th a t are materially indistinguishable from a Supreme Court decision and nevertheless a rriv e d at a result different from the Court's precedent." Fountain v. Kyler, 420 F.3d 267, 2 7 3 (3d Cir. 2005) (citations omitted). The "unreasonable application" test is met "only if th e state court identified the correct governing legal rule but unreasonably applied it to the p a rtic u la r case or if the state court either unreasonably extended a legal principle from S u p re m e Court precedent to a new context in which it should not apply or where it u n re a so n a b ly refused to extend such a principle to a new context in which it should a p p ly." Id.

O n appeal, Holiday focuses on his claims of ineffectiveness with respect to the p ro g re ss io n charge and the reasonable doubt instruction. On the progression charge, the P C R A court found that appellate counsel could not be deemed ineffective for failing to ra is e this alleged instance of ineffectiveness of trial counsel because the authorities H o lid a y cited from other jurisdictions ­ i.e., Arizona, Hawaii, Michigan, Ohio and O re g o n ­ were not binding on Pennsylvania courts, which had repeatedly upheld the c o n stitu tio n a lity of such a jury instruction. As to the reasonable doubt instruction, the P C R A court found that appellate counsel could not be deemed ineffective for failing to raise that ineffectiveness claim either, for the same reason: it was a standard jury in s tr u c tio n and Pennsylvania courts had previously rejected a similar challenge. These h o ld in g s were not contrary to or unreasonable applications of clearly established federal la w . Thus, we affirm the denial of Holiday's habeas petition.

* Hon. Paul R. Michel, Chief Judge of the United States C o u rt of Appeals for the Federal Circuit, sitting by d e s ig n a tio n .

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