NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 17-1424
                                    _____________

                                  AARON CARTER,
                                         Appellant

                                           v.

                SUPERINTENDENT COAL TOWNSHIP SCI;
          ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
              THE DISTRICT ATTORNEY OF PHILADELPHIA


                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           District Court No. 2-15-cv-04896
                    District Judge: The Honorable Joel H. Slomsky

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 18, 2018

           Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE,
                                   Circuit Judges

                                 (Filed: June 27, 2018)
                               _____________________

                                      OPINION *
                               _____________________

SMITH, Chief Judge.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       When Aaron Carter was nineteen, he was charged with the murder of Rashaad

Lowman. The evidence was damning. Lowman’s eleven-year-old cousin, Yasin Lowman,

witnessed the shooting, which involved multiple shots to Lowman’s back, groin, and hand.

Yasin was traumatized and required psychiatric treatment. In an effort to avoid further

trauma to Yasin, the Commonwealth offered a plea deal in which Carter would receive a

prison sentence of 15 to 30 years in exchange for a plea of guilty to third degree murder.

       On December 1, 2008, when the parties appeared in the Philadelphia County Court

of Common Pleas, Carter rejected the offer. The trial judge engaged in a dialogue with

Carter to make sure that he understood the offer was a generous one and that it would

enable him to get out of prison while he was still young. The trial judge reminded Carter

that the circumstances of his case did not support self-defense. After further discussion,

the trial judge again noted about the advantages of the plea offer. When Carter again

rejected the offer, the judge told him he was “ill-advised” and “making a very, very bad

decision.” ARR15.

       The following day, December 2, 2008, and before trial commenced, the prosecution

extended a second plea offer of 12 ½ to 25 years. Carter also rejected this offer. After

Carter’s motion to suppress his confession to the police was denied, his jury trial got

underway. The victim’s grandmother and his young cousin Yasin Lowman testified, as

did two police officers. Trial continued on December 3 with the expectation that autopsy

and ballistic reports would be admitted into evidence, along with Carter’s statement to the

police. Before testimony began, defense counsel advised the court that Carter had asked if

the plea was “still on the table.” ARR19. The judge expressed a willingness to accept a

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plea, but indicated that if Carter did plead, he would not be permitted to withdraw the plea.

According to the judge, the “Commonwealth would be horrifically disadvantaged if he

were to withdraw his plea. This 13-year-old, you can’t say it would be anything other than

unfair to put this child through another examination by lawyers.” ARR20.

       When defense counsel reviewed what an open plea meant, Carter balked, thinking

he would get the 15 to 30 year offer originally extended. 

informed

the court of the development and asked for additional time. After conferring further with

counsel, Carter agreed to an open plea to third degree murder and possession of an

instrument of crime. The open plea was entered and accepted that day. At the end of the

proceeding, Carter addressed the judge: “Your Honor, I’d like to thank you for giving me

the opportunity to plead guilty and I know I had a chance to plead before, but I didn’t. I

was under—you know, I just didn’t know at that time.” ARR24.

       At sentencing, the trial court heard argument from the Commonwealth, as well as

testimony from the families of both the victim and Carter. When it was Carter’s time to

speak, he explained that he had known the victim since third grade and that they were

friends. He expressed sorrow to the victim’s family, and told his own family that he

regretted putting them through an ordeal, concluding that “I’m sorry for everything and I

really wish it never happened.” ARR34.

       The trial court acknowledged reading a letter Carter had written, and then addressed

the victim’s grandmother. The court discussed the nature of the crime, and especially the

defensive nature of the victim’s multiple wounds. ARR35. The judge agreed with Carter’s

mother that her son was smart, noting that his letter was one of the “most eloquent” she

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had received. ARR35. But the judge was “candid with” Carter, telling him she thought “a

lot of what you wrote to me is BS.” 

court’s view, Carter was not “being honest”

and that, although “sincerely remorseful,” it was “because I think finally, finally you

realized what you have done to your mother.” 

explained that she was

“struggl[ing] with what is fair and decent in this circumstance.” 

stated she

had “no desire . . . no need to be vindictive.” 

then discussed Carter’s

rejection of the Commonwealth’s plea offer when he “knew [he was] guilty.”                   

court stated that “the one thing I cannot get past is what you did to Yasin.

You knew you were guilty. You had a cake offer, 15 to 30 for eight bullets in the back. I

couldn’t even believe the Commonwealth offered you that. And you didn’t take the offer

. . . until you knew the jury was going to hear your statement. That’s when you were like,

stop, wait, I can’t beat this because the jury is going to hear this statement.” ARR35-36.

       After making these comments, the trial court turned back to Carter’s letter and

declared that it could not “ignore the manipulation and dishonesty.” ARR36. First stating

that she had been “fully prepared as of last night . . . [to] let him go take the 15,” the trial

judge explained she had changed her mind. 

had given her pause

“[b]ecause a large part of it was a snow job.” 

everyone around Carter

“still want[ed] to give [him] a shot,” the judge sentenced him to 20 to 40 years of

imprisonment. 

attempted to withdraw his plea, his motion was denied. His direct

appeal was also unsuccessful. His action under Pennsylvania’s Post-Conviction Relief Act

fared no better. He filed a timely petition under 28 U.S.C. § 2254(d), which the District

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Court denied. Carter sought and obtained a certificate of appealability from this court to

address two claims: (1) that his trial counsel was ineffective because he failed to object

when the trial judge participated in the plea bargaining process on December 1; and (2)

that counsel was ineffective in failing to object to the trial court’s vindictiveness at

sentencing by imposing the maximum sentence to penalize him for exercising his right to

trial.

         To prevail on his ineffectiveness claims, Carter “must show that counsel’s

performance was deficient . . . [and] that the deficient performance prejudiced the defense.”

Strickland v. Washington, 

, 687 (1984). Moreover, because both of Carter’s

ineffectiveness claims were presented to and adjudicated by the state court, his § 2254

petition will be denied unless the state court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or “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).

         As to Carter’s first claim of ineffectiveness, he contends that the trial court’s initial

participation in the plea bargaining process resulted in a coerced guilty plea. The record

shows otherwise. An initial colloquy with Carter did not result in a guilty plea. When the

Commonwealth extended an offer more favorable to Carter before trial commenced, he

rejected that as well. It was only after trial was underway that Carter realized it was in his

interest to plead guilty. He then entered an open plea following a thorough plea colloquy.

The transcript of that proceeding reveals no basis for concluding that Carter’s plea was

either unknowing or involuntary.

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       On appeal, the Superior Court reasoned “there was no error in the trial court’s

guidance or involvement with the plea process.” Commonwealth v. Carter, No. 3197 EDA

2013, at 8 (Pa. Super. Ct. Nov. 13, 2014) (emphasis added). The Superior Court’s

determination that the trial court’s comments were “guidance” is a factual finding. While

Carter argues that it is an unreasonable determination of the facts warranting habeas relief,

we cannot agree. The record makes clear that the trial judge was trying to impress upon

the nineteen-year-old Carter the favorable plea arrangement that was being offered and that

it would allow him to be released from prison while he was in his late thirties, as opposed

to serving a life sentence. Under § 2254(e)(1), findings of fact are “presumed to be

correct.” We conclude that Carter has failed to rebut that presumption.

       As to Carter’s claim of ineffectiveness in failing to object to the trial court’s alleged

vindictiveness at sentencing, we begin with the seminal case of North Carolina v. Pearce,

(1969). There, the Court considered the extent to which “the Constitution

limit[s] the imposition of a harsher sentence after conviction upon retrial.” 

Although “neither the double jeopardy provision nor the Equal Protection Clause imposes

an absolute bar to a more severe sentence upon reconviction,” 

the Court

concluded that due process precludes imposing a penalty upon a “defendant for having

successfully pursued a statutory right of appeal or collateral remedy,” 

The Court

declared that due process “requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in the sentence he receives after

a new trial.” 

In United States v. Goodwin, the Supreme Court noted that in

Pearce it had “applied a presumption of vindictiveness, which may be overcome only by

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objective information in the record justifying the increased sentence.” 

, 374

(1982). “[W]here the presumption applies, the sentencing authority . . . must rebut the

presumption that an increased sentence . . . resulted from vindictiveness; where the

presumption does not apply, the defendant must affirmatively prove actual vindictiveness.”

Wasman v. United States, 

, 569 (1984).

       In Alabama v. Smith, 

(1989), the Supreme Court revisited what had

become known as the Pearce “presumption.” In Smith, the defendant had not been

sentenced following a retrial but instead had received a longer sentence after a trial which

followed vacatur on appeal of a guilty plea. In reviewing its precedent, the Court reiterated

that it had “limited [Pearce’s] application” to “[s]uch circumstances [as] those in which

there is a ‘reasonable likelihood,’ that the increase in sentence is the product of actual

vindictiveness on the part of the sentencing authority.” 

(omitting citation).

“Where there is no such reasonable likelihood, the burden remains upon the defendant to

prove actual vindictiveness.” 

468 U.S. at 569). The Supreme Court

held that “no presumption of vindictiveness arises when the first sentence was based upon

a guilty plea, and the second sentence follows a trial.” 

In reaching its holding,

the Court explained that the circumstances were not reasonably likely to have resulted from

vindictiveness because the sentencing judge knew more about the nature and extent of the

charged crimes and the defendant’s conduct after trial than he had known at the time of the

earlier guilty plea. 

Because “there [we]re enough justifications for a heavier

second sentence,” the Court concluded “that it cannot be said to be more likely than not

that” the resentencing in Alabama v. Smith was motivated by vindictiveness. 

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       The procedural history of the case before us does not involve a resentencing which

distinguishes it from the circumstances in Pearce and its progeny. The presumption,

therefore, is not applicable here. Nor is this a case where there was a reasonable likelihood

that the sentence imposed was attributable to vindictiveness. See Alabama v. 

. The Superior Court recognized as much in rejecting Carter’s direct appeal

asserting a claim of vindictive sentencing. That court observed that the 15 to 30 year term

was part of a generous pretrial plea offer that Carter had rejected, and that Carter was

lawfully sentenced to the 20 to 40 year term after entering a mid-trial open plea.

Commonwealth v. Carter, No. 571 EDA 2009, at 4 (Pa. Super. Ct. March 22, 2010).

       While we consider the presumption inapplicable here, the Supreme Court’s teaching

concerning actual vindictiveness remains relevant to Carter’s claim of ineffectiveness. See

(instructing that where the presumption does not apply, it is the

defendant who “must affirmatively prove actual vindictiveness”); see also United States v.

Rodriguez, 

, 360 (5th Cir. 2010) (analyzing, even though presumption of

vindictiveness did not apply, whether the defendant established a “due-process violation

by showing actual vindictiveness”); Waring v. Delo, 

, 758 (8th Cir. 1993)

(concluding that presumption was not warranted, and proceeding to analyze whether

defendant proved actual vindictiveness); Johnson v. Vose, 

, 11 (1st Cir. 1991)

(deciding that there was no actual vindictiveness after determining that defendant was “not

entitled to the Pearce presumption”); United States v. Lippert, 

, 460 (6th Cir.

1984) (rejecting automatic application of Pearce to “post-plea-bargain sentencing

proceedings,” and concluding that defendant failed to establish actual vindictiveness).

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       We conclude that relief under § 2254(d) should not be granted because the Superior

Court’s decision was neither contrary to nor an unreasonable application of clearly

established Supreme Court law. The Superior Court rejected Carter’s vindictiveness claim

on direct appeal. Commonwealth v. Carter, No. 571 EDA 2009, at 4. In addressing his

ineffective assistance claim, the Superior Court analyzed neither the performance nor the

prejudice prong of the ineffectiveness claim, choosing instead to address the vindictiveness

aspect of the underlying claim. To that end, the Court’s decision appropriately highlighted

the procedural posture of Carter’s case—the entry of an open plea. The entry of that plea,

coming as it did after two days of testimony, unmistakably resulted in the sentencing

judge’s having more information than she had after the initial pretrial plea-offer. Indeed,

the sentencing judge focused on information she learned after the initial plea offer, i.e., the

nature of the crime, Carter’s credibility and his perceived attempt to manipulate her. Those

considerations are appropriate for calculating a sentence, and nothing about them suggests

vindictiveness. Accordingly, we are hard pressed to conclude that the Superior Court’s

rejection of Carter’s ineffectiveness claim based on vindictiveness was unreasonable. See

Schriro v. Landrigan, 

, 473 (2007) (“The question under AEDPA is not

whether a federal court believes the state court’s determination was incorrect but whether

that determination was unreasonable—a substantially higher threshold.”); see also

Williams v. Taylor, 

, 410 (2000) (“[A]n unreasonable application of federal

law is different from an incorrect application of federal law”).

       For the reasons set out above, we will affirm the judgment of the District Court.



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