ANDREWS v. WINGARD et al
MEMORANDUM OPINION AND ORDER SIGNED BY HONORABLE CYNTHIA M. RUFE ON 4/18/17. 4/19/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, ) Modified on 4/19/2017 (ti, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 14-5538
TREVOR WINGARD, et al.,
MEMORANDUM OPINION AND ORDER
April 18, 2017
Before the Court are Petitioner Earl Andrews’s pro se objections to the Report and
Recommendation (“R&R”) filed by Magistrate Judge Henry S. Perkin. For the reasons that
follow, the Court will overrule the objections and deny the Petition for a writ of habeas corpus.
Petitioner is incarcerated in a state correctional institution, having pleaded guilty to three
counts of robbery and one count of unauthorized use of an automobile in the Philadelphia
County Court of Common Pleas. 1 The trial court originally sentenced Petitioner to an aggregate
sentence of five to 11 ½ years of incarceration and 4 ½ years of probation. 2 At sentencing, the
court granted Petitioner’s request that he report to begin serving his sentence 30 days later.
Petitioner was instructed to turn himself in at 11:00 a.m. on June 8, 2009, and was warned that he
would suffer consequences if he failed to appear. Following his sentencing, Petitioner, through
counsel, filed a motion to withdraw his guilty plea, which the trial court denied two days later.
It appears that Petitioner was charged in four separate cases that were consolidated for trial.
Specifically, the trial judge sentenced Petitioner to 3 ½ to seven years of incarceration on the first count;
1 ½ to 4 ½ years of incarceration on the second count, to run consecutively to the first count; 4 ½ years of probation
on the third count, to run consecutively to the first count and concurrently to the second count; and two years of
probation on the fourth count, to run concurrent with the last two years of the probation sentence on the third count.
On June 8, 2009, Petitioner failed to report to begin serving his sentence. Because his
attorney was on vacation at the time, the trial court appointed another attorney to represent him.
The court resentenced Petitioner in absentia to 11 ½ to 23 years of incarceration and issued
bench warrants for his arrest. 3 The judge stated that he was resentencing Petitioner because he
had violated the terms of his probation by failing to turn himself in. 4
In September 2009, Petitioner was arrested for an unrelated crime in Pittsburgh, and was
returned to Philadelphia to begin serving his sentence for the convictions in this matter. When
asked by the court at a subsequent bench warrant hearing why he failed to report, Petitioner
explained that he had just gotten married and “[his] heart got the best of [him].” 5 The judge held
Petitioner in contempt of court on each conviction and sentenced him to an additional three to six
months of imprisonment. 6 Because he was a fugitive for months following his conviction,
Petitioner did not appeal the underlying conviction or sentence. He did, however, appeal the
contempt sentence imposed on each conviction, arguing that the sentences violated double
jeopardy and that he was entitled to a jury trial on them. The Pennsylvania Superior Court denied
On February 16, 2010, Petitioner filed a pro se petition under the Pennsylvania Post
Conviction Relief Act (“PCRA”). 7 He then filed a counseled amended petition, as well as a pro
se supplement to the amended petition. His petition alleged that trial counsel was ineffective for
(1) failing to affirm that Petitioner was mentally capable of entering a knowing and voluntary
N/T 6/8/09 at 12.
Id. at 10.
N/T 3/18/10 at 5.
Id. at 10.
42 Pa. Cons. Stat. Ann. §§ 9541, et seq. In the pro se petition, he raised a claims that his resentencing
was unconstitutional and that his trial counsel was ineffective. However, these claims were not included in his
amended petition, and therefore they were not reviewed by the PCRA court.
guilty plea; (2) allowing Petitioner to accept a turn-in date without making sure he was capable
of abiding by it; (3) failing to request a continuance of sentencing to determine whether
Petitioner’s failure to appear was due to his mental condition; (4) failing to advise Petitioner that,
despite the motion to withdraw his plea, he would still have to report to begin his sentence; and
(5) filing an inadequate motion for withdrawal of Petitioner’s guilty plea. 8 The PCRA court
dismissed the petition, and the Superior Court denied Petitioner’s appeal of that decision.
Petitioner filed a timely habeas petition in this Court on October 6, 2014, claiming that
his due process rights were violated when he was resentenced in absentia, that his amended
sentence was unconstitutional because it violated Pennsylvania statutes, that his resentencing
violated the double jeopardy clause, and that the procedural default of his claims should be
excused because his counsel was ineffective. Upon review of the record and pleadings in the
case, the Magistrate Judge issued the R&R, recommending that Petitioner’s claims be denied
without a hearing, to which Petitioner filed objections.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
Petition. Under the AEDPA, “a district court shall entertain an application for writ of habeas
corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 9 Where, as here, the petition is referred to a magistrate judge for a report and
Am. Pet. (5/9/11) ¶ 18. It appears that Petitioner raised only claims relating to his mental capacity
because any other claim would have been deemed waived for Petitioner’s failure to raise it on direct appeal. See
Com. v. Brown, 872 A.2d 1139, 1144 (Pa. 2005) (“An allegation is deemed waived ‘if the petitioner could have
raised it but failed to do so before trial, at trial, on appeal or in a prior state postconviction proceeding.’”) (quoting
42 Pa.C.S. § 9544(b)); Com. v. Silo, 364 A.2d 893, 894 (Pa. 1976) (“The question of competency is an issue that
cannot be effectively waived.”).
28 U.S.C. § 2254(a).
recommendation, a district court conducts a de novo review of “those portions of the report or
specified proposed findings or recommendations to which objection is made,” and “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
In order to raise a federal habeas claim, a petitioner must first exhaust all available statelaw remedies. 11 A habeas petitioner’s claims must have been “fairly presented” to state courts;
that is, the claims raised in this Court must be the “substantial equivalent of the claims presented
to the state courts.” 12 Claims that are not exhausted will become procedurally defaulted,
foreclosing federal habeas review on the merits unless the petitioner “can demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of justice.” 13 “The
‘cause’ necessary to excuse the exhaustion requirement ‘must result from circumstances that are
external to the petitioner, something that cannot fairly be attributed to him.’” 14 The United
States Supreme Court has emphasized that the fundamental miscarriage of justice exception
applies to only “a severely confined category: cases in which new evidence shows ‘it is more
likely than not that no reasonable juror would have convicted [the petitioner].’” 15
Petitioner’s objections in part concern ineffective assistance of counsel. Counsel is
presumed to have acted reasonably and to have been effective unless a petitioner can
28 U.S.C. § 636(b)(1).
See 28 U.S.C. § 2254(b)(1)(A) (requiring that a petitioner “has exhausted the remedies available in the
courts of the State” before a claim is cognizable on federal habeas review).
Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982) (citations omitted).
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Hill v. Lavan, No. CIV. A. 03-5271, 2005 WL 1949621, at *1 (E.D. Pa. Aug. 9, 2005) (citation omitted).
McQuiggin v. Perkins, 133 S. Ct. 1924, 1933, 185 L. Ed. 2d 1019 (2013) (quoting Schlup v. Delo, 513
U.S. 298, 329 (1995)).
demonstrate (1) that counsel’s performance was deficient and (2) that the deficient performance
prejudiced the petitioner. 16 Counsel’s performance is only deficient when it is “outside the wide
range of professionally competent assistance.” 17 Prejudice occurs upon a showing that there is a
reasonable possibility that but for counsel’s deficient performance, the outcome of the
underlying proceeding would have been different. 18
Petitioner raises two objections to the R&R: (1) the Magistrate Judge should have
concluded that his trial counsel’s ineffectiveness constituted exceptional circumstances to excuse
the procedural default of his claims; and (2) the Magistrate Judge “misrepresent[ed] Petitioner’s
claims regarding sentencing,” and failed to address whether the “blatant departure” from
statutory rules at his resentencing violated his due process rights. 19 The Court will discuss each
objection in turn.
A. Whether Ineffectiveness of Trial Counsel Constitutes Exceptional
Circumstances to Excuse Petitioner’s Default
Petitioner first claims that the Magistrate Judge erred by concluding that exceptional
circumstances did not exist to excuse the procedural default of his claims. He argues that
exceptional circumstances existed because trial counsel was constitutionally ineffective when she
allowed him to plead guilty despite knowing that such a plea would not be knowingly made, and
when she chose to vacation when Petitioner was to begin serving his sentence.
First, with regard to the contention that his attorney was ineffective for allowing him to
plead guilty despite knowing of his incompetence, Petitioner raised this argument in his PCRA
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Id. at 690.
Lewis v. Horn, 581 F.3d 92, 106-07 (3d Cir. 2009).
Doc. No. 22 at 4-5.
petition, and the Superior Court found that it was belied by the record and otherwise meritless.
When the state court has squarely addressed the issue of counsel’s representation, this Court
faces a double layer of deference. 20 In these cases, “the pivotal question is whether the state
court’s application of the Strickland standard was unreasonable, which is different from asking
whether defense counsel’s performance fell below Strickland’s standard.” 21
The Superior Court, in denying Petitioner’s PCRA appeal, determined that despite a prior
diagnosis for paranoid schizophrenia, the record as a whole did not support Petitioner’s
contention. The Superior Court cited the transcript of Petitioner’s change of plea hearing, which
included statements by Petitioner’s counsel that, based on her review of medical records
including a recent competency evaluation, she had no reason to doubt Petitioner’s competency. 22
The transcript also included comments by the trial court that Petitioner appeared to be “fine” and
“articulate.” 23 Furthermore, at the bench warrant hearing in March 2010, which followed
Petitioner’s arrest in Pittsburgh, Petitioner did not cite mental health issues as a reason for his
failure to appear on his turn-in date. 24 Based on the foregoing, the Superior Court concluded that
the record did not support a finding that trial counsel provided constitutionally ineffective
assistance related to Petitioner’s guilty plea. The Court concludes that the Superior Court’s
analysis was a reasonable application of federal law.
As to Petitioner’s argument that his counsel was ineffective for being on vacation the day
he was due to begin serving his sentence, the Court need not consider this claim as it was raised
Premo v. Moore, 562 U.S. 115, 122-23 (2011).
Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v. Richter, 131 S. Ct. 770, 789
N.T. 6/8/09 at 7.
Com. v Andrews, 1103 EDA 2012, at 10.
for the first time in his objections. 25 In any event, the argument is without merit because
Petitioner has not shown that, absent his attorney’s failure to appear the day he was due to report,
the result of that proceeding would have been different. The acts or omissions of counsel did not
change the fact that Petitioner himself unquestionably failed to report to begin serving his
sentence. Because Petitioner has offered no new evidence to demonstrate cause or prejudice for
his default, or to show that “it is more likely than not that no reasonable juror would have
convicted” him, the Court will overrule this objection. 26
B. Whether Petitioner’s Resentencing In Absentia Was Unconstitutional
Petitioner’s second objection concerns the Magistrate Judge’s analysis of his resentencing
claim. He claims that his resentencing in absentia was unconstitutional because it violated
Pennsylvania statutes, due process, and double jeopardy. Petitioner did not raise this claim in the
PCRA proceedings. 27 As noted above, Petitioner has not shown the requisite exceptional
circumstances to excuse the procedural default of his claims, and the Court is thus foreclosed
from considering this claim. A brief discussion of the claim is nonetheless warranted.
Petitioner argues that the Magistrate Judge misconstrued the legal theory under which he
sought relief, but he is mistaken. 28 The Magistrate Judge determined that Petitioner’s
resentencing claim was procedurally defaulted, noted that the claim was noncognizable to the
See Codner v. Warden–Pike Cty., Civil Action No. 15–5176, 2016 WL 5721199, at *6 (E.D. Pa. Oct. 3,
2016) (“This Court joins the other courts within this district that have declined to address claims raised for the first
time in objections on the basis that it is too late to raise them now for the first time.”); Stromberg v. Varano, No.
CIV.A. 09-401, 2012 WL 2849266, at *2 (E.D. Pa. July 11, 2012) (“The Court is not required to consider the new
arguments raised, for the first time, in Petitioner’s Objections to the R&R.”).
McQuiggin, 133 S. Ct. at 1933.
Though Petitioner raised this claim in his original pro se PCRA petition, he did not include it in his
amended petition, likely because his lawyer knew it would be deemed waived, and it was therefore not considered
by the PCRA courts.
Petitioner also maintains that the Magistrate Judge improperly focused on his sentencing rather than his
resentencing, but he is mistaken. Although the Magistrate Judge characterized this claim as an assertion that “the
state courts violated Petitioner’s due process rights by sentencing him in absentia,” he confined his analysis to the
propriety of Petitioner’s resentencing after he failed to report. Doc. No. 16 at 12.
extent it alleged violations of state statutes, 29 and explained that, even if he could properly
consider Petitioner’s claim, the claim lacked merit. The Court agrees with the Magistrate Judge
to the extent he concluded that the claim is procedurally defaulted and the trial judge acted
within the 30-day statutory limit.
Petitioner primarily argues that the trial court violated his due process rights when it
“resentenced Petitioner after the lapse of its lawful jurisdiction” pursuant to 42 Pa. C.S. § 5505. 30
In other words, Petitioner alleges that the trial court’s resentencing outside the 30-day window
prescribed by § 5505 constitutes a violation of his constitutional rights. He is correct that the
statute requires that any modification of a sentence be made within 30 days of the original
sentence; however, the 30-day deadline fell on a Sunday, and the judge’s resentencing the
following Monday was therefore within the 30-day window permitted by § 5505. 31
Petitioner also alleges that the resentencing violated double jeopardy and due process.
The courts that have commented on Petitioner’s claim have agreed that the resentencing was
proper because it resulted from a probation violation, but this is not supported by the record.
While such a resentencing may be permitted under Pennsylvania law, 32 Petitioner was not on
probation when he failed to turn himself in. His term of probation was not imposed to
commence immediately, but rather his probation was to run consecutively to his 1 ½- to 4 ½-year
sentence of incarceration on the first count. Therefore, it appears that his failure to report was
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
Doc. No. 22 at 4. 42 Pa. C.S. § 5505 provides: “Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the
prior termination of any term of court, if no appeal from such order has been taken or allowed.”
See 1 Pa. C.S. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, or on
any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted
from the computation.”).
42 Pa. C.S. § 9771(c)(2)-(3) (a court may impose a sentence of confinement based on a probation
violation where “the conduct of the defendant indicates that it is likely that he will commit another crime if he is not
imprisoned” or “such a sentence is essential to vindicate the authority of the court”).
not a violation of probation, and it is not clear from the record what the basis for resentencing
was, or whether it was justified. It also bears noting that no effort was made to provide notice to
Petitioner, as required by § 5505, the ostensible authority for the resentencing. 33
Despite these deficiencies in the record, the Court cannot afford Petitioner relief because
the claim is procedurally defaulted. Plaintiff failed to file a direct appeal because he was on the
run. After he was arrested and brought back to Philadelphia, he apologized and explained that he
had just gotten married and “[his] heart got the best of [him].” 34 His decision to forego a direct
appeal was therefore a conscious one and not due to circumstances beyond his control.
Petitioner has not shown the requisite cause and prejudice to excuse his default, nor has he
argued that actual innocence compels relief. 35 The Court will therefore overrule Petitioner’s
second objection. 36
See Com. v. Colding, 114, 393 A.2d 404, 405 (Pa. 1978) (“Reconsideration of a sentence should, of
course, take place only following notice to all parties and an opportunity to be heard.”).
N/T 3/18/10 at 5.
At least one court in this district has recognized the possibility of a sentencing claim meeting the
“fundamental miscarriage of justice” exception (and, interestingly, the illegal sentence in that case was imposed by
Petitioner’s trial judge). See Watts v. Mahally, No. CV 15-3740, 2017 WL 1150619, at *9 (E.D. Pa. Mar. 27, 2017)
(“Even if the sentencing claim were procedurally defaulted, this Court would nonetheless remand for resentencing
because to do otherwise would ‘result in a fundamental miscarriage of justice.’”).
However, the Third Circuit has repeatedly held that this exception is reserved for petitions presenting
“evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional error.” Coleman v. Greene, 845 F.3d 73, 76 (3d
Cir. 2017) (quoting McQuiggin, 133 S. Ct. at 1936) (emphasis added); see also Hill, 2005 WL 1949621, at *1
(“‘The miscarriage of justice exception . . . applies only to the case where the miscarriage is tied to the petitioner’s
actual innocence.’ Thus, because Hill's illegal sentence claim does not suggest that he is actually innocent of the
underlying offense (only that he is receiving too harsh a punishment), he must demonstrate ‘cause and prejudice’
before we may reach the merits of his illegal sentence claim.”) (quoting Johnson v. Pinchak, 392 F.3d 551, 564 (3d
Cir. 2004)). Moreover, Petitioner does not argue that the sentence ultimately imposed was itself illegal, and it does
not appear that it was.
Petitioner also argues that his resentencing was improper under 42 Pa. C.S. § 9754(d), which requires
that a finding be made on the record that a violation has occurred prior to any sentence being imposed, and that the
trial judge was without power to sentence him to imprisonment for contempt, because under 42 Pa. C.S. § 4133, the
judge could only have imposed a fine. The Court declines to address these arguments, as Petitioner raises them for
the first time in his objections. See Codner, 2016 WL 5721199, at *6.
The Court will not grant Petitioner’s request for “another opportunity to more adequately articulate his
position” because, as discussed above, his claims are procedurally defaulted. Doc. No. 22 at 5.
Petitioner’s objections to the R&R are overruled. Because he has not made a substantial
showing of the denial of a constitutional right, and there is no basis for concluding that
“reasonable jurists could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further,”
a certificate of appealability will not issue. 37 An order will be entered.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation omitted).
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