JOHN E. JONES, III, District Judge.
Petitioner Karl Joseph Schmieding ("Petitioner" or "Schmieding"), a state inmate currently confined at the State Correctional Institution at Forrest (SCI-Forrest), Marienville, Pennsylvania, initially filed his petition (Docs. 1, 7) for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 5, 2011, seeking relief from his pleas of guilty to all counts in Court of Common Pleas of Huntingdon County, Pennsylvania, criminal case CP-31-CR-0000465-2005, and Court of Common Pleas of Franklin County, Pennsylvania, criminal docket number CP-31-0000074-2006. (Doc. 1, p. 1). The matter is proceeding via a second amended petition, dated August 25, 2017. (Doc. 42). The second amended petition is ripe for disposition. (Docs. 42, 43, 50, 52, 53). For the reasons that follow, the Court will deny the petition for writ of habeas corpus.
The Superior Court of Pennsylvania, in considering Schmieding's appeal of the denial of relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§9541-9546, set forth the following relevant procedural background:
(Doc. 50-5, pp. 2-3).
In his timely appeal from the denial of PCRA relief to the Superior Court of Pennsylvania, Schmieding raised the following issues:
(Id. at 3). The Superior Court affirmed the PCRA Court on February 2, 2016. (Doc. 50-5, p. 10). On September 29, 2016, the Supreme Court of Pennsylvania denied Schmieding's Petition for Allowance of Appeal. (Doc. 50-6).
Schmieding initiated this action with the filing of a petition for writ of habeas corpus on May 5, 2011 in the United States District Court for the Western District of Pennsylvania. (Docs. 1, 7). On November 11, 2011, the matter was transferred to this Court. On January 31, 2012, the Court stayed the petition to allow Petitioner to fully exhaust his state court remedies. (Doc. 20). On January 4, 2017, Schmieding filed a motion seeking to lift the stay as he had exhausted his state court remedies. (Doc. 36). On May 2, 2017, the Court granted Petitioner's motion, lifted the stay, and afforded him the opportunity to file an amended petition. (Doc. 38). He filed an amended petition on June 23, 2017. (Doc. 39). He filed a second amended petition two months later. (Doc. 42). The Respondent filed a response on January 23, ` (Doc. 50) and on February 12, `, Petitioner filed a traverse. On April 10, `, the Court issued an order directing the parties to supplement their filings to address all seven grounds raised by Petitioner. Respondent filed a supplemental response on April 13, `. (Doc. 55); Petitioner filed a supplemental reply on May 4, ` (Doc. 56).
(Doc. 42, pp. 10-11).
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). Petitioner's case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). 28 U.S.C. § 2254, provides, in pertinent part:
28 U.S.C. § 2254. Section 2254 sets limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings resulted in a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994).
"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam)." Estelle v. McGuire, 502 U.S. 62, at 67-68 (1991). "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41 (1984).
In grounds four and five, Petitioner contends that PCRA counsel were ineffective in failing to communicate with each other and with trial counsel to obtain critical information.
Habeas relief "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The habeas statute codifies this principle by requiring that a petitioner exhaust the remedies available in the courts of the State, 28 U.S.C. § 2254(b)(1)(A), meaning a state prisoner must "fairly present" his claims in "one complete round of the state's established appellate review process," before bringing them in federal court. O'Sullivan, 526 U.S. at 845 (stating "[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process."); see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Federal habeas courts "`will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Lambrix v. Singletary, 520 U.S. 518, 522 (1997) (quoting Coleman, 501 U.S. at 729.
The claims contained in grounds one, six and seven, and the ineffective assistance of counsel claim contained in ground 4, are unexhausted as Schmieding wholly failed to present them to the state courts. As noted supra, the state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard, 404 U.S. at 275-76. A petitioner has exhausted a federal claim only if he or she presented the "substantial equivalent" of the claim to the state court. Picard, 404 U.S. at 278; see also McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must present both "factual and legal substance" of claim to state courts). The exhaustion requirement would "serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts." Picard 404 U.S. at 276. The federal claims raised in the state courts need not be identical to the claims now pursued in federal court. Id. at 277 (recognizing that petitioner is entitled to "variations in the legal theory or factual allegations used to support a claim"). Review of the record confirms that Schmieding wholly failed to present the aforementioned claims to the state courts.
"When a claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, as is the case here, the exhaustion requirement is satisfied because there is `an absence of available State corrective process.' 28 U.S.C. § 2254(b). In such cases, however, applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims unless the applicant establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse his or her default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)." McCandless, 172 F.3d at 260.
To demonstrate "cause" for a procedural default, a petitioner must point to some objective external factor which impeded his efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). "Prejudice" will be satisfied only if he can demonstrate that the outcome of the state proceeding was "unreliable or fundamentally unfair" as a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).
Alternatively, if a petitioner demonstrates that a "constitutional violation has probably resulted in the conviction of one who is actually innocent," Murray, 477 U.S. at 496, then a federal court can excuse the procedural default and review the claim in order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial," showing that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
He fails to demonstrate "cause for the default and prejudice attributable thereto," or "that the failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). See also, Werts, 228 F.3d at 192-93 (A petitioner can overcome procedural default, and thereby empower the habeas court to entertain the merits of the habeas claim, with a showing of "cause and prejudice" or by demonstrating a fundamental "miscarriage of justice."); see also Schlup v. Delo, 513 U.S. 298, 321 (1995) (The miscarriage of justice exception is "explicitly tied. . .to the petitioner's innocence."). This matter was stayed for a significant number of years while he pursued collateral relief in state court. During that time period, he twice amended his PCRA petition. However, he neglected to raise the claims contained in grounds one, six or seven. The claims at issue are presented here, in federal court, in the first instance. The failure to raise the issues in state court is wholly attributable to Schmieding and his failure to pursue them during collateral review and, therefore, cannot form the basis for cause and prejudice. Further, Schmieding does not contend that he is actually innocent. Consequently, there is no basis on which to excuse his procedural default of these claims.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), federal courts reviewing a state prisoner's application for a writ of habeas corpus may not grant relief "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the claim (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (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).
"[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction," Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted), "[t]his is a difficult to meet and highly deferential standard . . . which demands that state-court decisions be given the benefit of the doubt." Cullen, 563 U.S. at 181(internal quotation marks and citation omitted). The burden is on Kittrell to prove entitlement to the writ. Id.
A decision is "contrary to" federal law if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is an "unreasonable application" of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is based on an "unreasonable determination of the facts" if the state court's factual findings are objectively unreasonable in light of the evidence presented to the state court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Finally, Section 2254(e) provides that "[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue 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).
The claims adjudicated on the merits allege ineffective assistance of trial counsel. Specifically, in ground three, Schmieding contends that counsel was ineffective in failing to adequately advise him with regard to his plea bargain and the subsequent entry of his plea. (Doc. 42, pp. 10, 11). In his second ground for relief, Petitioner argues that counsel was ineffective in failing to file his direct appeal. (Doc. 42, p. 10). It also appears that he is contending that counsel was ineffective in failing to call character witnesses at sentencing. (Doc. 56, pp. 15-19).
In setting forth the standard for ineffective assistance of counsel, the Superior Court stated as follows:
It is well settled that
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012), appeal denied, 64 A.3d 631(Pa. 2013) (citation omitted). "Generally where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation omitted). A failure to satisfy any prong of the test will require rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
(Doc. 50-5, p. 4).
The clearly established Federal law governing ineffective assistance of counsel claims, as determined by the Supreme Court of the United States is as follows:
Id. at 689, 104 S.Ct. 2052
Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir. 2010). The Third Circuit has held that the Pennsylvania ineffectiveness test is not contrary to the Supreme Court's Strickland standard. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, the state court's application of the Pennsylvania three-pronged test was not "contrary to clearly established federal law."
When the state court has decided the claim on the merits, as is the case here, "[t]he question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable—a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id.
On September 8, 2006, Schmieding pled guilty to various sexual offenses against minors and numerous child pornography charges; he was subsequently sentenced to an aggregate term of incarceration of 89 ½ to 215 months. He argues that he "was told about the deals 5 max he would be serving in county[;] 20 years if he didn't take the pleas. Petitioner accepted the pleas[,] signed everything[,] did everything they wanted. Yet what his advice and promise told petitioner were far apart. Petitioner ended up with what he was threatened with as a max in each county or very close to it." (Doc. 56, p. 17). He essentially argues that the ineffective assistance of counsel caused him to enter an involuntary or unknowing guilty plea.
On March 17, 2006, Schmieding appeared in the Court of Common Pleas of Huntingdon County for the purpose of entering guilty pleas to the matters at Huntingdon County docket number CP-31-0000465-2005, and Franklin County docket number CP-31-0000074-2006.
The transcript of that guilty plea hearing colloquy follows:
(Doc. 50-7, pp. 25-32). The "Guilty Plea Colloquy" form to which the judge referred supra, included the following questions and responses, inter alia:
(Doc. 50-7, pp. 19-24). Schmieding affirmed that he read the document in its entirety and fully understood its meaning and was still willing to enter a plea of guilty. (Id. at 23, 24).
On September 8, 2006, the time set for Schmieding's sentencing, prior to the imposition of sentence, the judge revisited the colloquy and thoroughly discussed the charges to which he pled guilty and their attendant penalties. The following are pertinent excerpts from the sentencing transcript:
I want to direct my attention to the Information at 465. The first charge made there alleges that you photographed a chi1d under the age of 18 involved in a prohibited sexual act. That's what it charges, Karl[,] unlawfully touched a youngster under the age of 13. And again this relates to the young man who was in the custody or is the son of your paramour. And along with that you are also charged with having unlawful contact with him for the purpose of indecent assault, committing an indecent assault. Both of those crimes, Karl, are misdemeanors of the first degree which means that you could receive for each a jai1 sentence of up to five years. Do you understand that?
(Doc. 50-7, pp. 36-41).
A defendant's Sixth Amendment right to effective counsel extends to the plea process. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Hill v. Lockhart, 474 U.S. 52, 56-67 (1985). In order for a guilty plea to be valid pursuant to the Fifth Amendment "it must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant." U.S. v. Jones, 336 F.3d 245 (3d Cir. 2003) (citing Hill, 474 U.S. at 56). Accordingly, when reviewing whether a plea is voluntary based upon a claim of ineffective assistance of counsel, the court utilizes the two-part test set forth in Strickland. Hill, 474 U.S. at 58.
With regard to the first part of the Strickland test, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded for attorneys in criminal cases." Hill, 474 U.S. at 56. The prejudice prong of Strickland "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59. Stated differently, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. A defendant must demonstrate that the decision to reject the plea bargain and proceed to trial "would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
The standards relied upon by the Superior Court in considering the claim that "the ineffective assistance of counsel caused [Schmieding] to enter an involuntary or unknowing [guilty] plea," mirror Supreme Court precedent. Specifically, the Superior Court set forth the following relevant case law:
(Doc. 50-5, pp. 6, 7).
The PCRA court summarized the PCRA hearing testimony, concerning Schmieding's understanding of the plea agreement and his interaction with his counsel, as follows:
(Doc. 50-7, pp. 135-37).
In his appeal of the PCRA court's decision, Schmieding specifically argued that "at the time he entered his guilty plea, he believed that he would receive a negotiated sentence of three to five years, to run concurrent to charges pending in Franklin County." (Id. at 8). He maintained that counsel misled him with regard to the penalty he was subject to under the plea agreement. (Id.). In concluding that the record did not support this assertion, the Superior Court stated as follows:
(Id. at 8, 9).
Review of the record bolsters the state court decision. The trial court detailed the charges contained in both matters and explained the accompanying penalties during the guilty plea colloquy hearing and the sentencing hearing. (Doc. 50-7, pp. 26-29, 36-38). Prior to imposing sentence, the court informed Schmieding that, with regard to Huntingdon County docket number CP-31-0000465-2005, two charges would be thrown out and others would "merge," leaving him with the two misdemeanors of the first degree charges, the unlawful touching of a youngster under the age of 13 and unlawful contact with a youngster under the age of 13, i.e. indecent assault. (Id. at 36, 37). The court noted that each charge carried a jail sentence of up to five years. At Franklin County docket number CP-31-0000074-2006, the court reiterated that Schmieding was facing 13 counts of child pornography, a felony of the third degree, which carries with it the possibility of a jail sentence of up to seven years and a fine of up to $15,000. (Id. at 38). The court confirmed that Schmieding understood the nature of the charges and the penalties. At no point, during either the guilty plea colloquy hearing or the sentencing hearing, was it ever represented or stated that there was an expectation that the impending sentences would run concurrently.
The court also queried whether he and his attorney had sufficient time to review the Commonwealth's evidence. Schmieding responded affirmatively and indicated that believed he was guilty of the crimes and understood the "rather harsh penalties that are involved." (Id. at 29). He also indicated that he had enough time to confer with his attorney and was not in need of additional time. (Id. at 31). Moreover, he indicated that he was aware that the court was not bound by the terms of any plea agreement until the court accepted the plea agreement, understood his right to file a motion or to orally move to withdraw the guilty pleas at any time between the date of the pleas and the imposition of sentence, and understood that if the judge chose to reject the plea agreement or sentence recommendation, he would be allowed to withdraw the plea. (Id. at 23). At sentencing, trial counsel indicated that he was satisfied that Petitioner understood the nature of the charges against him and the potential penalties. (Id. at 39).
We find nothing unreasonable with the state court's treatment of this claim. We are to evaluate state courts' determinations of ineffectiveness claims under a "doubly" deferential standard. See Knowlese, 566 U.S. at 123. See also Harrington v. Richter, 562 U.S. 86 (2011). We must defer to the state courts' judgment, in that it had the benefit of evaluating the credibility of the testimony of both Petitioner and his trial counsel at the PCRA hearings. Accordingly, we conclude that the Superior Court's analysis did not involve an unreasonable application of clearly established federal law and did not constitute an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Although not entirely clear from the amended petition, it appears that Schmieding is also arguing, as he did during his PCRA proceedings, that trial counsel was ineffective for failing to call character witnesses at sentencing.
The PCRA court determined the claim lacked merit because Schmieding "failed to present any evidence" that the witnesses existed, were available, that counsel knew or should have known the existence of the witnesses, that the witnesses were willing to testify, and that the absence of the testimony was so prejudicial to have denied him a fair trial. (Doc. 50-7, pp. 138-39, citing Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2008). Nor did Petitioner identify a single character witness in his appellate brief. (Doc. 50-4, pp. 19-20). The Superior Court addressed the issue as follows:
(Doc. 50-5, pp. 9, 10). This was a reasonable determination of the facts in light of the evidence presented, and did not involve an unreasonable application of clearly established federal law. This claim is without merit.
In ground two, Schmieding claims that trial counsel was ineffective for failing to file a direct appeal on his behalf to the Superior Court. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court interpreted Strickland, 466 U.S. 668, as requiring defense counsel to consult with a defendant about whether he or she wishes to appeal a conviction. If that consultation occurs and the defendant does not express a wish to appeal, counsel is not per se professionally unreasonable for not filing an appeal. Flores-Ortega, 528 U.S. at 478. However, if a defendant expressed a wish to appeal, and counsel fails to file an appeal, counsel is professionally unreasonable. See id. at 477 (stating "[w]e have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.").
The state court initially noted that "the unjustified failure to file a direct appeal is ineffective assistance of counsel per se and that a defendant need not demonstrate his innocence or show that he would have likely succeeded on appeal in order to meet the prejudice prong of the test for ineffectiveness. See Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa. Super. 2009)." (Doc. 50-5, p. 4). The court recognized, however, that "Appellant bears the burden of proving that he requested an appeal and the counsel disregarded that request. A mere allegation will not suffice to prove that counsel ignored a defendant's request to file an appeal." (Id.) (citations omitted). This is in accord with applicable federal law.
In applying the law to pertinent facts, the Superior Court noted that, at his first PCRA evidentiary hearing, Schmieding testified that he requested trial counsel to file an appeal on his behalf in person and in numerous letters. (Doc. 50-5, p. 5). During the Second PCRA evidentiary hearing, trial counsel testified that he "executed with Appellant a document explaining his appeal rights, but that Appellant never requested a direct appeal. See N.T., PCRA Hearing, 10/3/14 at 13; Explanation of Appellate Rights, 9/8/06. Counsel explained that had Appellant requested a direct appeal, he would have filed it, as Appellant had an absolute right to an appeal. See id." (Doc. 50-5, p. 5). "In finding that Appellant had not met his burden of proving that he requested trial counsel to file a direct appeal, the PCRA court implicitly credited trial counsel's testimony. See Trial Court Opinion, 5/11/15 at 9." (Id.) The Superior Court then stated that "[b]ased on counsel's testimony, as credited by the PCRA court, we find that Appellant has failed to adequately support his claim that counsel ignored his request to file an appeal. See Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (a PCRA court's credibility determinations are binding on this Court where there is record support for those determinations). Accordingly, as Appellant has failed to meet his burden of proof, his claim that trial counsel was ineffective for failing to file a direct appeal is without merit." (Id. at 6).
The state court's determinations did not involve an unreasonable application of clearly established Federal law. Nor did they result in decisions based on an unreasonable determination of the facts in light of the evidence. Petitioner is not entitled to relief on this claim.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability ("COA"), an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322 (2003). Petitioner fails to demonstrate that a COA should issue.
The denial of a certificate of appealability does not prevent Schmieding from appealing the order denying his petition so long as he seeks, and obtains, a certificate of appealability from the Third Circuit Court of Appeals. See FED. R. APP. P. 22(b)(1).
For the reasons set forth above, the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 will be denied.
A separate Order will enter
Nonetheless, the record reveals that the trial court conducted the colloquy in accordance with the Pennsylvania Rules of Criminal Procedure. The colloquy must inquire into the following areas:
Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citing Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa. Super. 2003)); PA. R. CRIM. P. 590(A)(2) (Comment). During the oral guilty plea colloquy, in the written colloquy, and at the sentencing hearing, prior to the imposition of sentence, the following areas identified in PA. R. CRIM. P. 590 were addressed: the nature of the charges to which petitioner was pleading guilty (Doc. 50-7, pp. 20, 26-29, 35-39), the factual basis for the plea (id. at 20, 26-28, 36-38), the right to a jury trial (id. at 20, 30), the presumption of innocence until proven guilty (id. at 20, 30, 31), the permissible range of sentence for the charges (id. at 21, 22, 27, 29, 37-42, 59, 60) and that the judge is not bound by the term of the plea agreement (id. at 21). Petitioner acknowledged that he understood the rights he was giving up and that he was doing so voluntarily. (Id. at 23, 24, 30, 31, 38-40). A presumption exists that Petitioner's statements at the plea allocution are truthful. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (stating that "[T]he representations of the defendant . . . at [a plea] hearing . . . constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.")
