Peace v. Klem , 335 F. App'x 197 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-26-2009
    Peace v. Klem
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-3571
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    Recommended Citation
    "Peace v. Klem" (2009). 2009 Decisions. Paper 1124.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1124
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 07-3571
    ERIC PEACE,
    Appellant
    v.
    EDWARD KLEM;
    THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
    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. 06-cv-3379
    (Honorable Harvey Bartle III)
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    March 2, 2009
    Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
    (Filed: June 26, 2009)
    OPINION OF THE COURT
    SCIRICA, Chief Judge.
    Petitioner Eric Peace brings this habeas corpus action under 28 U.S.C. § 2254.
    Peace pleaded guilty to three counts of kidnapping and one count each of robbery of a
    motor vehicle, possessing instruments of crime, and criminal conspiracy.1 He took no
    direct appeal. Peace filed his timely petition for collateral relief in state court under
    Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, on June 3,
    2003, requesting reinstatement of his direct appellate rights because he allegedly asked
    counsel to file a direct appeal, which counsel failed to do. The PCRA court, after an
    evidentiary hearing, found that Peace never asked his counsel to file a direct appeal.
    Accordingly, the court dismissed Peace’s petition. Peace appealed to the Pennsylvania
    Superior Court, which affirmed the denial of PCRA relief and found that Peace waived
    his claims because he had failed to comply with Pa. R. App. P. § 1925(b).2 On May 9,
    1
    Peace, along with two others, kidnapped a woman and her two young children at
    gunpoint and held them for ransom for several days in the hopes of extorting drugs from
    her boyfriend, supposedly a top neighborhood drug dealer. After being arrested, Peace
    made a full confession to the police detailing his involvement in the crimes.
    Peace pleaded guilty initially on July 7, 2002. He then moved to withdraw his
    guilty plea, a motion the court granted on September 25, 2002. On February 3, 2003,
    Peace filed a suppression motion which was denied. Peace then entered a guilty plea in
    which he agreed to very limited appeal rights. At his sentencing, Peace apologized to his
    victims and to the court, and asked for leniency in his sentencing. He was sentenced to ten
    to twenty years imprisonment.
    2
    Pa. R. App. P. § 1925(b) states:
    The lower court forthwith may enter an order directing the appellant to file of
    record in the lower court and serve on the trial judge a concise statement of the
    matters complained of on the appeal no later than 14 days after entry of such order.
    A failure to comply with such direction may be considered by the appellate court
    as a waiver of all objections to the order, ruling or other matter complained of.
    On June 13, 2004, three days after the PCRA court filed its opinion, appellate counsel
    was directed by the Pennsylvania Superior Court to file such a concise statement. The
    (continued...)
    2
    2006, the Pennsylvania Supreme Court denied Peace’s petition for appeal.
    Peace timely filed a petition for federal habeas corpus relief in the Eastern District
    of Pennsylvania. The District Court, in accordance with the Report and Recommendation
    of the Magistrate Judge, determined Peace’s claims were procedurally defaulted and
    denied relief. We granted a certificate of appealability under 28 U.S.C. § 2253(c)(1) for
    the sole question of whether trial counsel was ineffective for failing to file a direct
    appeal.3 We will affirm the District Court.
    We review the District Court’s denial of habeas corpus relief de novo. Harrington
    v. Gillis, 
    456 F.3d 118
    , 124 (3d Cir. 2006). Our review is governed by the Antiterrorism
    and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas
    relief is only appropriate for a claim that was adjudicated on the merits in state court if the
    state adjudication of the claim “(1) resulted in a decision that is 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 proceedings.” 28 U.S.C. § 2254(d). Furthermore, a “determination of a factual
    issue made by a State court shall be presumed to be correct. The applicant shall have the
    (...continued)
    entire statement consisted of: “Whether the court erred in denying Petitioner PCRA
    relief.” The Pennsylvania Superior Court determined the statement was too general and
    vague to alert the court of the specific issues to be raised on appeal.
    3
    We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
    3
    burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
    U.S.C. § 2254(e)(1).
    The Commonwealth contends, and the District Court and Magistrate Judge
    competently found, that Peace had procedurally defaulted his claims because he did not
    adhere to the state appellate procedural rules. Even if we assume Peace’s claims are not
    procedurally defaulted,4 we would still apply AEDPA’s deferential standard on the factual
    findings made by the PCRA court. Unless Peace produced clear and convincing evidence
    to the contrary, we are therefore bound by the PCRA court’s determination that he did not
    ask his counsel to file a direct appeal.
    Peace contends he verbally asked his counsel to file an appeal after his sentencing.
    In testimony at the PCRA hearing, his counsel denied he was ever asked to file an appeal.
    The PCRA court found counsel to be credible. The court also identified additional
    evidence to support this finding: two letters, one Peace sent to his counsel which never
    mentioned a request for an appeal; the second from Peace’s mother to counsel thanking
    him for his help, but also making no mention of a request for an appeal. In light of this
    evidence, the PCRA court concluded the “defendant did not meet his burden of proving
    4
    In general, we may not consider issues on appeal that are not within the scope of the
    certificate of appealability. 28 U.S.C. § 2253(c)(3); Villot v. Varner, 
    373 F.3d 327
    , 337
    n.13 (3d Cir. 2004). We note that the certificate of appealability before us does not
    include the issue of procedural default.
    4
    ineffectiveness for failure to file a requested appeal because he never requested such from
    his attorney.”
    To overcome the PCRA court’s finding of fact, Peace must present clear and
    convincing evidence of his attempts to communicate with his attorney or evidence which
    corroborated his testimony that he asked his counsel to file a notice of appeal. See 28
    U.S.C. § 2254(e)(1). Peace produced no new or different evidence in his federal petition.
    He relied entirely upon his testimony from the PCRA hearing. As noted, Peace’s
    testimony conflicts with the testimony by his trial counsel whom the PCRA court found to
    be credible.
    In conjunction with the PCRA court’s findings of fact, we also note Peace pleaded
    guilty after his motion to suppress was denied. The Supreme Court has stated that
    “[a]lthough not determinative, a highly relevant factor in this inquiry [whether defendant
    asked for counsel to file a direct appeal] will be whether the conviction follows a trial or
    a guilty plea, both because a guilty plea reduces the scope of possible appealable issues
    and because such a plea may indicate that the defendant seeks an end to judicial
    proceedings.” Roe v. Flores-Ortega, 
    528 U.S. 470
    , 480 (2000). Peace’s guilty plea is
    probative (but not dispositive) in indicating petitioner’s desire to end judicial proceedings.
    Therefore, because the petitioner did not carry his burden of challenging the
    presumptively correct factual findings of the PCRA court by clear and convincing
    evidence, we will affirm the judgment of the District Court denying the habeas petition.
    5
    

Document Info

Docket Number: 07-3571

Citation Numbers: 335 F. App'x 197

Judges: Scirica, Sloviter, Hardiman

Filed Date: 6/26/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024