Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2006

Tome v. Stickman
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1286




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Recommended Citation
"Tome v. Stickman" (2006). 2006 Decisions. Paper 1574.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1574


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                                                      NOT PRECEDENTIAL


            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 04-1286


                 CHRISTOPHER M. TOME,
                       Appellant

                              v.

                WILLIAM S. STICKMAN;
THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA




             On Appeal From the United States
                        District Court
           For the Eastern District of Pennsylvania
            (D.C. Civil Action No. 03-cv-04174)
           District Judge: Hon. Legrome D. Davis


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                     December 12, 2005

      BEFORE: SLOVITER, SMITH and STAPLETON,
                   Circuit Judges

             (Opinion Filed: February 16, 2006)
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Christopher Tome (“Tome”) appeals the denial of his petition for habeas

corpus relief. The District Court denied Tome’s petition on the grounds that he had failed

to exhaust his claims in state court and that those claims were now procedurally defaulted.

A motions panel of our court granted a certificate of appealability with respect to Tome’s

claim that he was denied effective assistance of counsel in connection with the entry of

his guilty plea. We will affirm the decision of the District Court.

       Tome pled guilty in the Lancaster County Court of Common Pleas to numerous

offenses, including armed robbery, burglary, theft of motor vehicles and escape. The

court sentenced Tome to fifteen to thirty years of imprisonment, consistent with the terms

of a negotiated plea agreement.

       After filing a notice of appeal on Tome’s behalf, Tome’s trial counsel sought and

was granted leave to withdraw his representation because Tome desired to raise claims of

ineffective assistance of trial counsel. However, following the appointment of new

counsel, Tome withdrew and discontinued his appeal. The Superior Court marked the

appeal discontinued.



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       Tome then filed a pro se petition under Pennsylvania’s Post Conviction Relief Act,

42 Pa. Cons. Stat. § 9541 et seq. (“PCRA”). The PCRA court appointed new counsel for

Tome. Tome’s PCRA counsel saw no merit in Tome’s claims, filed a “no merit” letter

pursuant to Commonwealth v. Finley, 

(Pa. Super. 1988), and requested

permission to withdraw as counsel. When the PCRA court then notified Tome of its

intention to dismiss the PCRA petition without a hearing, Tome filed “Defendant’s Pro-

Se Response to PCRA Court’s Notice of Intent to Dismiss PCRA Petition.” In that

document, Tome raised, for the first time in state court, the following claim:

       Defendant was denied effective assistance of PCRA counsel, in that PCRA
       counsel failed to file an amended PCRA Petition, in that Defendant was
       denied his Constitutional Right to effective assistance of trial counsel, in
       that trial counsel induced Defendant’s guilty plea, in that Defendant was
       mentally incompetent to enter a knowing[] and intelligent guilty plea[.]

Def.’s Resp. Notice Intent Dismiss at 5, Commonwealth v. Tome, Nos. 882-2084 (Pa. Ct.

Comm. Pl. May 10, 2001). The Common Pleas Court dismissed Tome’s petition without

a hearing.

       Tome filed a pro se appeal of the denial of his PCRA petition to the Pennsylvania

Superior Court. In that appeal, Tome raised, inter alia, the following issue for review:

       Whether the lower court erred in failing to find appellant was denied
       effective assistance of PCRA counsel, in that PCRA counsel failed to
       advance the claim of trial counsel’s ineffective assistance, in that trial
       counsel induced appellant’s guilty plea, in that appellant was mentally
       incompetent to enter a voluntary, intelligent and knowing guilty plea?

App. at 218.



                                              3
       The Superior Court denied Tome’s appeal. With respect to Tome’s claim that he

was denied effective assistance of PCRA counsel due to PCRA counsel’s failure to raise

ineffective assistance of trial counsel, the Superior Court followed Commonwealth v.

Laszczynski, 

(Pa. Super. 1988), and ruled that Tome had no meritorious

ineffective assistance of trial counsel claim for PCRA counsel to assert because the

Pennsylvania statute governing ineffectiveness challenges to guilty pleas required a

showing of actual innocence and Tome did not assert his innocence.

       Tome subsequently filed a pro se application for reargument with the Superior

Court and, after that was dismissed, a pro se petition for allowance of appeal with the

Pennsylvania Supreme Court, which was denied on March 28, 2003.

       Tome then filed a pro se petition for habeas corpus in the District Court, raising,

inter alia, a claim that he was denied his federal right to effective assistance of trial

counsel during his plea proceedings. The District Court ruled that Tome’s federal

ineffective assistance of trial counsel claim was never exhausted in the state appellate

courts. Because such a claim could now be raised only in a second PCRA petition and

such a petition would be barred by the PCRA’s one-year statute of limitations, the District

Court ruled that the claim was procedurally defaulted. The Court concluded that Tome

had not shown cause or a fundamental miscarriage of justice to excuse the default and,

consequently, the Court could not review Tome’s claim. A motions panel of our Court

granted a certificate of appealability as to Tome’s claim that he was denied effective



                                               4
assistance of trial counsel during the plea proceedings, which included the related issue of

whether that claim is procedurally defaulted.

         The District Court had jurisdiction over Tome’s petition for habeas corpus

pursuant to 28 U.S.C. § 2254. We have jurisdiction to review the District Court’s order

with respect to those issues encompassed by the certificate of appealability under 28

U.S.C. §§ 1291 & 2253. See Lambert v. Blackwell, 

, 230 (3d Cir. 2004).

“We exercise plenary review over the District Court’s legal conclusions in a habeas

proceeding, including its resolution of legal questions arising from application of the

procedural default doctrine.” Villot v. Varner, 

, 331 (3d Cir. 2004) (citations

omitted).

         Tome seeks to raise a claim that he was deprived of his Sixth Amendment right to

effective assistance of counsel when his trial court attorney “induced” him to enter a

guilty plea, even though Tome was mentally incapable of entering a knowing, intelligent

and voluntary plea at that time. He did not raise this claim in the Pennsylvania courts. He

did, however, raise a related claim before the Superior Court in his PCRA proceedings

that he was “denied effective assistance of PCRA counsel, in that PCRA counsel failed to

advance the claim of trial counsel’s ineffective assistance.” App. at 218. We agree with

the District Court that Tome did not present this claim to the Superior Court as a federal

claim.

         “A state prisoner must exhaust his state court remedies before a federal court may



                                              5
grant him habeas relief.” 

. The exhaustion requirement gives

states “the opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.” Baldwin v. Reese, 

, 29 (2004) (quotations omitted). “To provide the

State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each

appropriate state court . . . , thereby alerting that court to the federal nature of the claim.”

“requires that the claim brought in federal court be the substantial

equivalent of that presented to the state courts. Both the legal theory and the facts

underpinning the federal claim must have been presented to the state courts, and the same

method of legal analysis must be available to the state court as will be employed in the

federal court.” Evans v. Court of Common Pleas, 

, 1231 (3d Cir. 1992)

(citations omitted).

       “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, the exhaustion requirement is satisfied because there is ‘an absence of available

State corrective process.’” McCandless v. Vaughn, 

, 260 (3d Cir. 1999)

(quoting 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.” 

the Supreme Court held that a petitioner who had argued to the state



                                                6
courts that his “trial counsel’s conduct violated several provisions of the Federal

Constitution,” but “did not say that his separate appellate ‘ineffective assistance’ claim

violated federal law,” had not properly alerted the state courts to the federal nature of his

claim of ineffective assistance of appellate 

. The Court noted that

the state post-conviction petition did not “explicitly say that the words ‘ineffective

assistance of appellate counsel’ refer to a federal claim.” 

Further, the fact that

the petition referred “to provisions of the Federal Constitution in respect to other claims”

did not alert the state courts to the federal nature of the appellate ineffectiveness claim.

a conclusion that Tome failed to alert the state courts to the

federal nature of his ineffective assistance of trial counsel claim. Tome presented to the

state courts a claim that he was denied effective assistance of PCRA counsel when his

PCRA counsel failed to assert that Tome was denied effective assistance of trial counsel

because his trial counsel “induced” Tome’s guilty plea, even though Tome was mentally

incompetent to enter a voluntary, knowing and intelligent guilty plea. This claim

necessarily includes two underlying claims: the first underlying claim is that his trial

counsel was ineffective; the second is that his guilty plea was involuntary. Before the

Common Pleas Court, Tome referred to the first underlying claim as a denial of his

“Constitutional” right to the effective assistance of trial counsel. On appeal to the

Superior Court, Tome only referred to “trial counsel’s ineffective assistance.”



                                               7
       The claim Tome raised in the Superior Court was not identified as a federal claim.

Indeed, there is no federal right to effective assistance of post-conviction counsel.

Pennsylvania v. Finley, 

, 555 (1987) (“Our cases establish that the right to

appointed counsel extends to the first appeal of right, and no further.”). Even looking

past the fact that Tome presented his trial counsel ineffectiveness claim layered within an

overarching state law claim, Tome failed to ground the first underlying claim for

ineffective assistance of trial counsel in federal law and, understandably, the Superior

Court decided it on state law grounds. Read generously, Tome perhaps grounded his

deepest underlying claim, his challenge to the voluntariness of his guilty plea, in part in

federal law through citation of Morris v. Slappy, 

(1983), and United States v.

Cole, 

(3d Cir. 1987). Under Baldwin, that is not sufficient to alert state

courts to the federal nature of his claim for ineffective assistance of trial counsel. In

Baldwin, even though the petitioner had squarely grounded an underlying claim for

ineffective assistance of trial counsel in federal law, the Supreme Court ruled that the

petitioner had failed to alert the state courts to the federal nature of an overarching claim

for ineffective assistance of appellate 

. Consequently, we cannot

say that Tome alerted the state courts to the federal nature of his claim for ineffective

assistance of trial counsel, when only his underlying claim of an involuntary guilty plea

referenced federal law.

       Baldwin left open the possibility that if a petitioner presents a state claim that state



                                               8
courts evaluate under a standard identical to the federal standard, then presentation of that

claim might be sufficient to meet § 2254(b)’s exhaustion 

(expressly declining to consider argument that where state standard for ineffective

assistance of counsel is identical to federal standard, a petitioner need not indicate a

claim’s federal nature). It is generally true that the “test for counsel ineffectiveness is the

same under both the Pennsylvania and Federal Constitutions: it is the performance and

prejudice test set forth in Strickland v. Washington, 

, 

, 

(1984).” Commonwealth v. Gribble, 

, 460 (Pa. 2004).

However, the Pennsylvania Superior Court decided Tome’s case at a time when it

interpreted a Pennsylvania statute, 42 Pa. Cons. Stat. § 9543(a)(2)(iii), to impose an

innocence requirement for claims of ineffective assistance of counsel relating to guilty

pleas. Compare Commonwealth v. Laszczynski, 

, 1187-88 (Pa. Super.

1998) (analyzing plea-related ineffectiveness claim under 42 Pa. Cons. Stat. §

9543(a)(2)(iii), which requires innocence, because statute governs pleas of guilt and

claims of unlawful inducement in connection with a plea of guilt), with Commonwealth

ex rel. Dadario v. Goldberg, 

, 130 (Pa. 2001) (holding that claims of

ineffective assistance of counsel arising from plea bargaining process are cognizable

under PCRA’s ineffectiveness subsection, 42 Pa. Cons. Stat. § 9543(a)(2)(ii), which does

not require innocence); Commonwealth v. Lynch, 

, 730 (Pa. Super. 2003)

(same); see also 

n.5 (discussing change in Pennsylvania law). In



                                               9
Villot, we held that the innocence requirement of § 9543(a)(2)(iii) is a substantive

requirement of Pennsylvania 

. Under federal law, by contrast, to

satisfy the prejudice prong of Strickland attendant to ineffective assistance of counsel

claims, a defendant who has pleaded guilty need only show “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.” Hill v. Lockhart, 

, 59 (1985). Thus, Tome’s

federal claim for ineffective assistance of trial counsel is not the “substantial equivalent

of that presented to the state courts.” 

; cf. Jackson v. Edwards,

, 621 (2d Cir. 2005) (holding that petitioner “exhausted his federal claim

because, in this case, the legal standards for his federal and state claims were so similar

that by presenting his state claim, he also presented his federal claim”). Thus, Tome did

not “fairly present” his federal ineffective assistance of trial counsel claim to the state

courts.

          Tome is now time barred from filing a second PCRA petition presenting such a

claim. See 42 Pa. Cons. Stat. § 9545(b) (setting a one-year jurisdictional statute of

limitations for PCRA actions). Consequently, the exhaustion requirement is deemed

satisfied because there is “an absence of available State corrective process,” but Tome has

procedurally defaulted his claim and we may not consider its merits unless he establishes

“cause and prejudice” or a “fundamental miscarriage of justice” to excuse his default on

his claim of ineffective assistance of trial counsel in connection with the taking of his



                                              10
plea. 

. Tome suggests that because he received ineffective

assistance of appellate counsel, he has “cause” to excuse the procedural default on his

claim of ineffective assistance of trial counsel in connection with the taking of his plea.

But for ineffective assistance of prior counsel to serve as “cause” to excuse a procedural

default, habeas petitioners must first exhaust the ineffective assistance claim itself in state

court, or show cause and prejudice for that failure to exhaust. Edwards v. Carpenter, 

, 451-52 (2000); Murray v. Carrier, 

, 489 (1986). Tome failed to

raise this federal claim of ineffective assistance of appellate counsel in state court, and

that claim is therefore unexhausted (or deemed exhausted, but procedurally defaulted).

Nothing prevented Tome from raising such a claim in his PCRA proceedings and Tome

does not assert any basis to excuse his failure to assert such a claim.1

       The District Court’s order will be affirmed.




   1
    While Tome did assert in the Superior Court ineffective assistance of appellate
counsel for failing to file a motion to withdraw his plea, that claim is distinct from the
ineffective assistance of counsel claim Tome identifies as providing “cause” for the
claims he here asserts.

                                              11