Malik Mack v. Superintendent Mahanoy SCI , 714 F. App'x 151 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2486
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MALIK MACK,
Appellant
v.
SUPERINTENDENT MAHANOY SCI;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
THE DISTRICT ATTORNEY OF THE COUNTY OF MONTGOMERY
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-01829)
District Judge: Hon. Gerald J. Pappert
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Submitted Under Third Circuit LAR 34.1(a)
November 6, 2017
Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges.
(Filed: November 9, 2017)
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OPINION*
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JORDAN, Circuit Judge.
*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Malik Mack, a Pennsylvania state prisoner, appeals the District Court order
dismissing his petition for habeas corpus as procedurally defaulted. Mack contends that
the default of his ineffective assistance of counsel claim is excused pursuant to Martinez
v. Ryan, 566 U.S. 1 (2012). We granted Mack’s application for a certificate of
appealability “as to whether the District Court erred in concluding that he is procedurally
barred from pursuing his claim that plea counsel was ineffective [because] [r]easonable
jurists could debate whether Martinez ... excuses the default of this claim, and whether
the claim has merit.” (App. at 21.) The government concedes that Martinez may excuse
Mack’s default. We too agree that Martinez applies and may excuse Mack’s default, and
we will therefore vacate the District Court’s order dismissing Mack’s petition for a writ
of habeas corpus and remand to the District Court with instructions to conduct the
analysis that Martinez requires.
I. BACKGROUND
Mack pleaded guilty in the Court of Common Pleas in Montgomery County,
Pennsylvania, to one count of third-degree murder and one count of aggravated assault.
The state court sentenced Mack to sixteen-and-one-half to thirty-five years of
imprisonment. He did not file a direct appeal.
Later, Mack filed a pro se petition for collateral review under Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541, et seq., and the PCRA court
appointed new counsel for him. Mack’s PCRA counsel filed a no-merit letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc), seeking to
withdraw from representing Mack. The court granted the withdrawal and issued a notice
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of its intent to dismiss Mack’s PCRA petition without a hearing. Mack filed a pro se
response but did not raise a claim that plea counsel had been ineffective. The court then
dismissed Mack’s PCRA petition without a hearing. The Pennsylvania Superior Court
affirmed the dismissal, and the Pennsylvania Supreme Court denied allowance of appeal.
Mack timely filed a petition for a writ of habeas corpus. At that point, he claimed
that his “[p]lea counsel rendered ineffective assistance by failing to adequately
investigate medical and factual state-of-mind evidence; and failed to inform [Mack] that
such evidence would be essential in properly determining guilt; this failure caused
[Mack] to unintelligently, unknowingly and involuntarily plead guilty.” (App. at 122.)
A Magistrate Judge issued a Report and Recommendation concluding that Mack’s
habeas claim was procedurally barred and that Mack could not avoid the bar by relying
on Martinez. The Report and Recommendation reasoned that, “after PCRA counsel was
permitted to withdraw, petitioner could have preserved the instant claim by raising it in
petitioner’s response to the notice of intention to dismiss PCRA petition, which petitioner
failed to do. [Martinez] does not excuse petitioner’s failure to raise a claim on collateral
appeal.” (App. at 8-9.) The District Court adopted the Report and Recommendation in
full and dismissed Mack’s habeas petition.
Mack has appealed that dismissal, arguing that the District Court erred by
concluding that Martinez was inapplicable and by not conducting the analysis called for
by Martinez.
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II. DISCUSSION1
We normally cannot review a state prisoner’s petition for habeas corpus when the
prisoner’s federal claim has been procedurally defaulted. Coleman v. Thompson, 501
U.S. 722, 750 (1991). A procedural default occurs when an independent and adequate
state procedural rule bars state courts from considering the claim. Id. But we can excuse
the default and review the claim if the prisoner can show cause and prejudice. Id.
Although cause typically cannot be established by showing ineffective assistance
of counsel in state collateral proceedings, id. at 752, the Supreme Court announced a
narrow exception to that rule in Martinez, 566 U.S. at 9. It said, “a procedural default
will not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in [an] initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id. at 17. The rule in Martinez will serve to
establish cause when “three conditions are met: (a) the default was caused by ineffective
assistance of post-conviction counsel or the absence of counsel (b) in the initial-review
collateral proceeding ... and (c) the underlying claim of trial counsel ineffectiveness is
‘substantial,’ meaning ‘the claim has some merit[.]’” Cox v. Horn, 757 F.3d 113, 119 (3d
Cir. 2014) (quoting Martinez, 566 U.S. at 14).
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The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over a district
court’s dismissal of a habeas petition when the district court did not grant an evidentiary
hearing. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002).
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Importantly, our inquiry focuses on whether counsel, not the prisoner, raised the
ineffective assistance of counsel claim at the initial-review collateral proceeding. See id.
(explaining that Martinez may apply when ineffective assistance of post-conviction
counsel or absence of counsel caused the default). Indeed, we recently emphasized in
Bey v. Superintendent Greene SCI that, under Pennsylvania law, raising a claim of
ineffective assistance of trial counsel is the responsibility of PCRA counsel. 856 F.3d
230, 243 (3d Cir. 2017). Because that responsibility rests with PCRA counsel, we have
applied Martinez to excuse a procedural default when such counsel has failed to raise an
ineffective assistance of counsel claim. Id. at 243-44.
Here, neither the Magistrate Judge nor the District Court conducted the analysis
that Martinez requires. The Report and Recommendation’s reasoning – that Martinez did
not apply because Mack could have raised the issue in his pro se filing in the PCRA court
– is inconsistent with Martinez itself.
In Martinez, a prisoner’s appellate attorney filed a statement that the prisoner
lacked any meritorious claim and the prisoner failed to respond with any claims he
believed his counsel overlooked. 566 U.S. at 6, 18. Even though the prisoner failed to
respond, the Supreme Court remanded the case to determine whether his collateral
counsel was ineffective for conceding any claim of ineffective assistance at trial. Id. at
18. The facts here are similar to those in Martinez: Mack’s PCRA counsel filed a no-
merit letter and Mack failed to raise in his pro se response his claim of ineffective
assistance of plea counsel. Even though Mack responded but failed to raise that claim,
Martinez may still excuse the default if Mack’s PCRA counsel was ineffective for filing a
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no-merit letter and not raising Mack’s ineffective assistance claim regarding plea counsel.
Thus, the District Court erred by not applying Martinez to determine whether the default
may be excused.
Our decision in Bey was announced after the District Court dismissed Mack’s
habeas petition but provides further support for our decision. 856 F.3d at 237. We stated
there that, in Pennsylvania, PCRA counsel has the responsibility to raise any claim of
ineffective assistance of counsel. Id. at 243. Because that responsibility rests with PCRA
counsel, we applied Martinez to determine whether the default may be excused. Id. at
243-44. The District Court here failed to appreciate that PCRA counsel, not Mack, had
the responsibility to raise the claim. Thus, it was error not to conduct the Martinez
analysis.
III. CONCLUSION
For the foregoing reasons, we will vacate the District Court’s order dismissing
Mack’s petition for a writ of habeas corpus and remand with instructions for the Court to
conduct the analysis that Martinez requires – that is, to determine whether Mack can
establish that (a) the default was caused by ineffective assistance of his PCRA counsel or
the absence of counsel, (b) in an initial-review collateral proceeding, and (c) the
underlying claim of plea counsel ineffectiveness is substantial. Cox, 757 F.3d at 119.
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