Tola Ross v. Superintendent Pine Grove SCI

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3947
________________
TOLA ROSS,
Appellant
v.
SUPERINTENDENT PINE GROVE SCI;
DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-17-cv-00073)
District Judge: Honorable Timothy J. Savage
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1
on April 12, 2022
Before: AMBRO, SCIRICA, and TRAXLER, Circuit Judges.
(Filed: July 19, 2022)
________________
OPINION**
________________

Honorable William Traxler, Senior Circuit Judge, United States Court of Appeals for
the Fourth Circuit, sitting by designation
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Tola Ross seeks a writ of habeas corpus from a state court conviction.
28 U.S.C. § 2254. We granted Ross a certificate of appealability (COA) on whether the
District Court erred in denying his claim that his counsel was ineffective for failing to
perfect a direct appeal on his behalf. We now hold the Pennsylvania Superior Court
applied precedent that is contrary to clearly established federal law and Ross was
prejudiced by his counsel’s deficient performance. The Commonwealth of Pennsylvania
does not oppose our granting the relief sought by Ross. We will reverse the judgment of
the District Court denying Ross’s petition for a writ of habeas corpus and remand with
instructions to conditionally grant the writ.
I.
In 2004, Tola Ross was charged with first-degree murder, arson, and criminal
conspiracy. To avoid the possibility of life imprisonment, Ross pleaded guilty to third
degree murder, arson, and criminal conspiracy. The next day, Ross sought to withdraw
his plea. His plea counsel filed a simple motion to withdraw the plea, which offered no
reason or justification as to why Ross sought to do so. Accordingly, the trial judge
denied the motion.
Although Ross told his plea counsel he wanted to withdraw his plea, Ross’s plea
counsel never consulted with him about filing a notice of appeal and never filed such a
notice. Ross attempted to file a pro se notice of appeal, but the notice was seemingly
misdirected and never docketed. Accordingly, Ross never received a direct appeal of his
conviction.
2
Ross then filed a petition for state collateral relief in the Court of Common Pleas,
pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA). Ross raised several
issues, including that his counsel was ineffective for failing to file a notice of appeal from
the trial court’s denial of his motion to withdraw his guilty plea. The PCRA court held
two evidentiary hearings, at which Ross and his plea counsel both testified. Ross and his
plea counsel disagreed over whether Ross specifically requested plea counsel to file a
notice of appeal. But plea counsel admitted that Ross asked him to withdraw the plea.
He also admitted that he never consulted with Ross about an appeal after the judge denied
the withdrawal motion. The PCRA court resolved the credibility dispute in favor of the
plea counsel and found Ross had not specifically requested his plea counsel to file a
notice of appeal.
The PCRA court did not apply the test the Supreme Court laid out in Roe v.
Flores-Ortega, 528 U.S. 470 (2000). In Flores-Ortega, the Supreme Court set forth the
legal framework for claims alleging that counsel was ineffective for failing to file a direct
appeal where the defendant had not given explicit instruction concerning an appeal. Id. at
477. In such situations, a judge must consider whether counsel consulted with the
defendant. Id. at 477–78. The Court held that counsel must “consult with the defendant
about an appeal when there is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” Id. at 480.
3
Instead of applying Flores-Ortega to Ross’s claim, the PCRA court rejected
Ross’s claim because he “failed to establish that he requested trial counsel to file a direct
appeal following the denial of his Petition to Withdraw and/or Reconsideration of
Sentence.” JA 121. On appeal, the Pennsylvania Superior Court took the same approach
and relied on pre-Flores-Ortega state precedent requiring Ross to “prove that he
requested an appeal and that counsel disregarded that request.” JA 127–28 (citing
Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. Ct. 1999) (abrogated by
Flores-Ortega, 528 U.S. 470)). Because the Superior Court concluded Ross had not
asked plea counsel to file an appeal, it rejected Ross’s ineffective-assistance-of-counsel
claim.
Ross eventually exhausted his state court remedies when the Pennsylvania
Supreme Court declined to review his case. He then filed a § 2254 petition for a writ of
habeas corpus in the U.S. District Court for the Eastern District of Pennsylvania. The
District Court denied Ross’s petition and declined to issue a COA. We granted a COA as
to the notice-of-appeal issue. The Commonwealth concedes the District Court erred
because the Superior Court should have followed Flores-Ortega, and, accordingly, does
not contest Ross’s petition.
4
II.1
Where, as here, the state court adjudicated the merits of a petitioner’s habeas
claims, federal habeas relief is available only if the state court’s decision was (1)
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court,” or (2) “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).
A state-court decision is “contrary to” clearly established federal law if the
decision “applies a rule that contradicts the governing law set forth in [the Supreme
Court’s] cases, or if it confronts a set of facts that is materially indistinguishable from a
decision of [the Supreme] Court but reaches a different result.” Rountree v. Balicki, 640
F.3d 530, 537 (3d Cir. 2011) (quoting Brown v. Payton, 544 U.S. 133, 141 (2005)).
Here, the Pennsylvania Superior Court applied a rule that contradicts Flores-Ortega. See
Lewis v. Johnson, 359 F.3d 646, 659 (3d Cir. 2004) (“The Supreme Court invalidated
[this] rule in Flores–Ortega.”). Instead of considering whether Ross would want to
appeal and whether he reasonably demonstrated to his plea counsel that he was interested
in appealing, as required by Flores-Ortega, the Superior Court focused on Ross’s failure
to prove he explicitly requested his plea counsel to file a notice of appeal. As the
1
We have jurisdiction over this petition under 28 U.S.C. § 2253(c)(1), as Ross appeals
from a final order denying habeas relief of the United States District Court for the Eastern
District of Pennsylvania and has received a certificate of appealability from this Court.
5
Commonwealth acknowledges, the decision to reject Ross’s claim on these grounds was
contrary to clearly established federal law.
III.
We agree with both Ross and the Commonwealth in finding Ross’s plea counsel
ineffective. To succeed on an ineffective-assistance-of-counsel claim, a petitioner must
show (1) “counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Ross has
met both prongs of the Strickland test.
After the Court’s decision in Flores-Ortega, Ross’s request to withdraw his plea
should have put his plea counsel on notice that Ross was interested in appealing. See
Lewis, 359 F.3d at 660 (finding a defendant’s attempt to withdraw his guilty plea “should
have put [counsel] on notice that [the defendant] may have been interested in appealing
the trial judge’s ruling”). Accordingly, plea counsel’s failure to consult with Ross about
an appeal constitutes deficient performance under Strickland’s first prong. And Ross has
met Strickland’s second prong because plea counsel’s failure to consult with Ross
prejudiced Ross. Ross’s request to withdraw his plea and his attempt to file a pro se
notice of appeal demonstrate “a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have timely appealed.” Flores-
Ortega, 528 U.S. at 484. Ross has demonstrated he received ineffective assistance of
counsel in violation of his Sixth Amendment right.
6
IV.
We will reverse the District Court’s order denying the petition for a writ of habeas
corpus and remand with instructions to issue a writ of habeas corpus conditioned upon
the Commonwealth’s reinstatement of Ross’s right of first appeal within 90 days of entry
of the grant of relief.
7