NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 16-3086
                                    _____________

                                   WILLIE SMITH,
                                            Appellant

                                           v.

                       SUPERINTENDENT MAHANOY SCI;
                     ATTORNEY GENERAL PENNSYLVANIA;
                   DISTRICT ATTORNEY LAWRENCE COUNTY


                   On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           District Court No. 2-10-cv-00048
                  Magistrate Judge: The Honorable Robert C. Mitchell

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 1, 2018

     Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges

                                 (Filed: May 16, 2018)
                               _____________________

                                      OPINION*
                               _____________________

SMITH, Chief Judge.

      In January of 2003, Torrance Respress died from a fatal gunshot wound to the

head. In June of 2004, Willie Smith testified in the Court of Common Pleas of Lawrence

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
County, Pennsylvania, that his intention had been to strike Respress with the gun, but that

it accidentally discharged. During their deliberations, the jury sent a question to the

judge concerning the first degree murder charge and the effect on defendant of drugs and

alcohol. Smith did not request an instruction on voluntary intoxication at any point before

the charge or in response to the jury’s inquiry. Ultimately, the jury convicted Smith of

first degree murder. He was sentenced to life imprisonment, and his direct appeal was

unsuccessful.

       Thereafter, Smith filed a pro se petition under the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq. The PCRA court appointed new

counsel for Smith. After Smith filed an amended PCRA petition asserting a Batson

claim1 and an ineffective assistance of trial counsel claim, the PCRA court denied PCRA

relief. A92. Smith moved for new counsel to represent him on appeal and the Superior

Court granted that request. Smith’s new appellate counsel filed a letter explaining that

his appeal lacked merit.2 See A99. Smith filed a pro se brief, asserting an ineffectiveness

claim based on trial counsel’s failure to request a jury instruction on voluntary

intoxication. The Superior Court disagreed with appellate counsel’s position that Smith’s

appeal lacked merit, vacated the PCRA court’s order denying relief, and remanded the

case for further proceedings. The PCRA court was directed to address two issues, one of

which was trial counsel’s ineffectiveness in light of the failure to request an instruction

on voluntary intoxication. A99-119. The Superior Court explained that the record did

1
 See Batson v. Kentucky, 

(1986).
2
 See Commonwealth v. Turner, 

(Pa. 1988); Commonwealth v. Finley, 

(Pa. Super. Ct. 1988).
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not show whether trial counsel had a reasonable basis for not seeking the instruction.

A112.

        On remand, Smith filed an amended PCRA petition (the second PCRA petition)

and the PCRA court held an evidentiary hearing. A120; A131.                  During cross-

examination, the prosecution asked Smith about his use of alcohol and drugs around the

time of the shooting and whether he remembered being offered a plea of guilty to third

degree murder. Smith responded in the negative and testified that his counsel “never

brought that to my attention. He never said anything to me about a plea, any kind of

plea.” A145.

        Trial counsel also testified during the evidentiary hearing and explained that he did

not seek an intoxication instruction because Smith directed him not to do so. A156.

Counsel explained that he had researched voluntary intoxication and that he thought it

was the best approach to take in defending Smith. A157. He noted the prosecutor must

have had the same view because of the offer to plead guilty to third degree murder.

A157. According to trial counsel, Smith, who was 63 years old, rejected that offer

because it meant, to him, a “life sentence.” A158. Moreover, in Smith’s view, the

shooting was an accident and he intended to testify to that effect. In so testifying, he

hoped to be convicted of nothing more serious than manslaughter. Counsel affirmed that

he “could not convince [Smith] to take that plea to third degree.” A158. Counsel also

recalled talking to Smith after the jury asked the question concerning drugs and alcohol,

and that Smith insisted “it was an accident, and I – I don’t want third degree.” A164.

Smith interjected at that point in the hearing that he had “never heard the offer before for
                                              3
a plea.” 

explained that the intoxication instruction would have

been inconsistent with Smith’s theory that the gun discharged by accident.

               The PCRA court denied Smith’s second PCRA petition. It found
       that the Commonwealth offered the Defendant a plea to third degree murder
       and trial counsel presented the offer to the Defendant and explained to him
       that this was a reasonable plea under the circumstances, but the Defendant
       planned to testify at trial that he only intended to strike the victim with the
       gun and it accidentally went off in the process.

A201. Because trial counsel had credibly testified that an instruction on intoxication

would have been inconsistent with Smith’s theory of the case, the PCRA court concluded

that trial counsel had not been ineffective in failing to request the intoxication instruction.

A202. Smith appealed, but the Superior Court adopted the PCRA court’s opinion as its

“own.” A211.

       In the wake of this unsuccessful appeal, Smith filed a third PCRA petition

claiming ineffectiveness because trial counsel “never once discussed with me at any time

that I should plead guilty to third degree murder.” A214. After a hearing, the PCRA

court denied Smith’s third PCRA petition on several procedural grounds, including that

the claim that he was not advised of a guilty plea was untimely and that it had been

previously litigated in the prior petition inasmuch as the court had credited the testimony

of trial counsel that Smith “was not interested in a disposition that involved murder of the

third degree.” A257. The Superior Court affirmed, agreeing that Smith’s third PCRA

petition was “patently untimely.” A266.

       During the pendency of the third PCRA petition, Smith initiated a § 2254

proceeding in the District Court. That proceeding was stayed to allow Smith to exhaust

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his claim in state court and the case was administratively closed. After the PCRA court

denied Smith’s third PCRA petition, Smith requested the reopening of his § 2254

petition. The District Court granted the request and, as relevant here, concluded that the

ineffectiveness claim based on a failure to convey the plea offer had been procedurally

defaulted. On appeal, we noted that this claim was still being litigated and that the

District Court’s determination that the claim was procedurally defaulted was debatable.

A21. Thereafter, we granted a stay until Smith’s claim was final in the state court.

       We issued our judgment in January of 2016, vacating the District Court’s

judgment and remanding for further proceedings.          On remand, the District Court

determined that the ineffectiveness claim based on failure to communicate the plea offer,

though not raised as such in the second PCRA petition, had been considered on the

merits. A9. Because the District Court believed that Martinez v. Ryan, 

(2012), “insure[d] that a defendant has the opportunity to challenge the effectiveness of

trial counsel,” A10, and that challenge occurred in the litigation of the second PCRA

petition, the District Court determined that the conclusions of the state court were neither

contrary to federal law nor an unreasonable application of that law for purposes of §

2254(d). In other words, the District Court abandoned its previous determination that the

claim was defaulted, decided there was an adjudication on the merits, and declared that

Martinez was not applicable. A10. Alternatively, the District Court noted that, even if

Martinez was applicable, the factual finding by the state court that the plea offer had been

extended to Smith was presumptively correct. 

timely appeal followed.3        A23.         We granted a second certificate of

appealability on the ineffectiveness claim based on trial counsel’s failure to communicate

the plea offer and directed the parties to explain whether the ineffectiveness claim based

on the plea offer “is governed by AEDPA deference.”4 A1-2. Smith contends that there

was no adjudication on the merits as to the plea offer claim and that AEDPA deference

under § 2254(d) is not applicable. The Commonwealth acknowledges that there is no

state court adjudication on the merits. We agree.

       In Thomas v. Horn, 

(3d Cir. 2009), we held that an “adjudication on

the merits” for purposes of § 2254(d) “means that the state court’s resolution of the claim

must have preclusive effect.” 

We further explained that when an adjudication

by an appellate state court is “on purely procedural, not substantive, grounds,” it “strip[s]

the PCRA court’s substantive determination of . . . preclusive effect” and does not

constitute an “adjudication on the merits.”        

with Thomas, the

Superior Court’s affirmance of the denial of Smith’s third PCRA petition on purely

procedural grounds is not an adjudication on the merits entitled to AEDPA deference

under § 2254(d).

       Accordingly, the ineffectiveness claim based on the failure to communicate the

plea offer is defaulted. The question that remains is whether that default may be excused

under Martinez v. Ryan, 

(2012). “To overcome the default, a prisoner must


3
  The District Court exercised jurisdiction under 28 U.S.C. §§ 2241 and 2254. We
exercise final order jurisdiction under 28 U.S.C. § 1291.
4
  We review the legal determination of whether AEDPA applies de novo. Simmons v.
Beard, 

, 231 (3d Cir. 2009).
                                             6
also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a

substantial one, which is to say that the prisoner must demonstrate that the claim has

some merit.” 

      Here, Smith claims his trial counsel was ineffective because he “never once

discussed with me at any time that I should plead guilty to third degree murder.” A214.

Yet in resolving the second PCRA petition on whether trial counsel’s performance was

deficient for failure to request an intoxication instruction, the PCRA court credited trial

counsel’s testimony that he had advised Smith of the plea offer and that counsel had not

been able to convince Smith to plead guilty to third degree murder. In fact, the PCRA

court found that “trial counsel presented the offer to [Smith] and explained to him that

this was a reasonable plea under the circumstances.” A201. The Superior Court adopted

the PCRA court’s opinion as its own. A211. Although the state court decision on the

third PCRA petition which actually raised the ineffectiveness claim regarding the plea

offer is not an adjudication on the merits, § 2254(e)(1) mandates that the factual

determinations from the second PCRA decision that concern counsel’s communications

with Smith regarding the plea offer are presumed correct. Simmons v. Beard, 

, 231 (3d Cir. 2009). Because Smith has not rebutted the presumption of correctness

by clear and convincing evidence, we conclude there is no factual basis for Smith’s

ineffectiveness claim, i.e., that trial counsel never communicated the plea offer to him.

Accordingly, Smith’s ineffectiveness claim is not “substantial” under Martinez and we

cannot excuse the procedural default of the plea offer 

.

      In sum, because Smith has failed to demonstrate that his defaulted ineffectiveness
                                            7
claim “has some merit” under Martinez, we will affirm the judgment of the District

Court.




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