Azim v. McGrady et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) - RE: 1 Petition for Writ of Habeas Corpus filed by Alim Abdul Azim.Signed by Honorable Matthew W. Brann on 7/25/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ALIM ABDUL AZIM,
Petitioner
v.
WARDEN JAMES MCGRADY,
Respondent

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CIVIL NO. 4:CV-13-956
(Judge Brann)

MEMORANDUM
July 25, 2014
Background
Alim Abdul Azim, an inmate presently confined at the Retreat State
Correctional Institution, Hunlock Creek, Pennsylvania (SCI-Retreat), filed this pro
se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as
Respondent is SCI-Retreat Superintendent James McGrady. Service of the
Petition was previously ordered.
On February 27, 2008, Petitioner entered a counseled guilty plea to charges
of aggravated assault (2 counts); persons not to possess, use, manufacture, control,
sell, or transfer firearms; firearms not to be carried without a license; recklessly
endangering another person; and tampering with evidence in the Court of

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Common Pleas of Lebanon County, Pennsylvania.1 The charges stemmed from an
October 21, 2007 incident during which Azim allegedly discharged a firearm
multiple times outside a McDonald’s restaurant during business hours in the
direction of the victim, William Johnson.
Azim was sentenced on May 7, 2008 to an aggregate twelve (12) to twentyseven (27) year term of confinement. Petitioner’s motion seeking modification or
reconsideration of sentence was denied by the sentencing court on May 20, 2008.
On June 20, 2008, Petitioner filed a pro se direct appeal to the Superior
Court of Pennsylvania. The appeal was quashed on August 25, 2008 for Azim’s
failure to comply with Pennsylvania Rule of Appellate Procedure 3517.2 No
further appeal was pursued.
On February 4, 2009, Azim filed a pro se petition pursuant to
Pennsylvania’s Post Conviction Relief Act (PCRA).3 The petition alleged that
trial counsel was ineffective for failing to perfect a requested direct appeal.

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A charge of criminal attempt to commit criminal homicide was dismissed.

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Rule 3515 requires the filing of a docketing statement.

See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for
post-conviction collateral relief for allegations of error, including ineffective
assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights
to appeal by Commonwealth officials, and violation of constitutional provisions."
Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).
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Following appointment of counsel and an evidentiary hearing, the sentencing court
issued an Order on June 11, 2009 which reinstated Azim’s direct appellate rights
nunc pro tunc.
Following that decision, Petitioner filed a counseled direct appeal on June
22, 2009. The Superior Court of Pennsylvania affirmed Petitioner’s sentence by
decision dated February 12, 2010. A petition for allowance of appeal was denied
by the Supreme Court of Pennsylvania on August 18, 2010.
On April 1, 2011 Azim next filed a pro se PCRA action (which was
considered an initial PCRA action in light of the reinstatement of Petitioner’s
direct appeal rights) alleging that trial counsel provided ineffective assistance by
erroneously advising his client that he faced a greater maximum sentence (71
years) then the actual sentence (34 years) which could be imposed thereby causing
Petitioner to enter an unknowing, involuntary, and unintelligent guilty plea. Azim
also alleged that the trial court unlawfully induced his guilty plea by similarly
advising him that he faced a greater maximum sentence then the actual potential
maximum sentence.
Counsel was appointed to represent Azim and an evidentiary hearing was
held. An October 20, 2011 Memorandum Opinion by the sentencing court denied
PCRA relief. By decision dated April 20, 2012, the Superior Court of

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Pennsylvania affirmed that denial. A petition for allowance of appeal to the
Supreme Court of Pennsylvania was denied on December 19, 2012. This federal
habeas corpus petition followed.
Petitioner’s pending action claims entitlement to federal habeas corpus relief
on the grounds that he was denied effective assistance of counsel in that his plea
counsel coerced him into entering a guilty plea with a promise that he would
receive a lesser sentence than the one actually imposed. Azim adds that his
counsel also misinformed him as to the maximum sentence which he was facing.
Respondent seeks dismissal on the petition on the grounds that it was
untimely filed and because Azim failed to exhaust his available state court
remedies. In addition, Respondent alternatively argues that Petitioner’s arguments
are subject to dismissal for lack of merit. This matter is ripe for consideration.
Discussion
Timeliness
Respondent’s initial argument contends that Azim has not filed a timely
habeas corpus action. See Doc. 9-1, p. 9. Azim’s pending § 2254 petition is dated
March 13, 2013, and will be deemed filed as of that date. See Houston v. Lack,
487 U.S. 266 (1988)(a prisoner’s action is deemed filed at the time it is given to
prison officials for mailing to the Court.)

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Section 2244(d) of Title 28 of the United States Code provides, in relevant
part, as follows:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion
of direct review or the expiration for seeking such review . . .
(d)(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).
Under the plain terms of § 2244(d)(1)(A), the period of time for filing a
habeas corpus petition begins to run when the period for direct review expired.
See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“upon conclusion of
direct review of a judgment of conviction, the one year period within which to file
a federal habeas corpus petition commences, but the running of the period is
suspended for the period when state post-conviction proceedings are pending in
any state court.”)(emphasis in original).
The running of limitations period is suspended for the period when
properly-filed state post-conviction proceedings are pending in any state court.
See Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.), cert. denied, 534 U.S. 944
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(2001)(an untimely PCRA petition does not toll the statute of limitations for a
federal habeas corpus petition); Merritt v. Blaine, 326 F.3d 157, 165-66 & n. 6 (3d
Cir. 2003)(federal courts are bound by state court’s determination that PCRA
petition was untimely and thus not “properly filed”).
However, the period during which a Section 2254 applicant could have filed
a petition for writ of certiorari with the United States Supreme Court from denial
of an application for state post conviction or other collateral relief does not defer
the commencement of the limitations period. See Lawrence v. Florida, 549 U.S.
327, 333-36 (2007).
It is additionally noted that the “one-year filing requirement is a statute of
limitations, not a jurisdictional rule, and thus a habeas petition should not be
dismissed as untimely filed if the petitioner can establish an equitable basis for
tolling the limitations period.” Jones, 195 F.3d at 159, citing Miller v. New Jersey
State Department of Corrections, 145 F.3d 616 (3d Cir. 1998).
“[A] litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his claims diligently; and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). A habeas petitioner may establish grounds for equitable tolling
by showing that (a) the government has actively misled the petitioner; (b) the

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rights in question were timely asserted, but in the wrong forum; or (c) the
petitioner has in some extraordinary way been prevented from asserting his
rights.” Jones, 195 F.3d at 159. “In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise
to the ‘extraordinary’ circumstances for equitable tolling.” Fahy v. Horn, 240 F.3d
239, 244 (3d Cir. 2001). Nor does equitable tolling extend to claims of excusable
neglect. Irwin, Dept. Of Veterans’ Affairs, 498 U.S. 89, 96 (1990).
Respondent’s pending untimeliness argument contends in part that a 131
day period between September 26, 2008 (30 days after the Superior Court of
Pennsylvania dismissed his initial appeal) to February 4, 2009 (the filing date of
his first PCRA action) should be included in the calculation of the limitations
period.
It is undisputed that as a result of Azim’s first PCRA action, his direct
appeal rights were reinstated nunc pro tunc by the sentencing court. Petitioner
than pursued a direct appeal which concluded on August 18, 2010 when the
Supreme Court of Pennsylvania denied his petition for allowance of appeal. In
accordance with the principles announced in § 2244(d)(1)(A) and Harris as well as
the equitable tolling standards, it is the determination of this Court that the
limitations period began to run as of the August 18, 2010 conclusion of

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Petitioner’s reinstated direct appeal.
Second, the running of the limitations period was thereafter tolled during the
period when Petitioner’s subsequent PCRA action was pending before the
Pennsylvania state courts (April 1, 2011- December 19, 2012). It is undisputed
that said action was considered to be an initial PCRA action by the Pennsylvania
state courts. See Doc. 9-1 p. 5.
Based upon those determinations, the one year limitations period ran from
August 18, 2010 until April 1, 2011 (approximately 7 ½ months) and from
December 19, 2012 until the filing of this action on March 13, 2013
(approximately 3 months) . Since Azim’s pending federal petition was initiated
within the § 2244(d) one year limitations period, the request for dismissal on the
basis of untimeliness will be denied.
Exhaustion
The second argument raised by Respondent maintains that Azim did not
properly exhaust his available state court remedies. See Doc. 9-1, p. 10.
Specifically, Respondent argues that the claims before this court “were not the
claims presented [ to] the trial court and pursued by Petitioner before the appellate
courts.” Id.
Title 28 United States Code Section 2254(b)(1) provides that an application

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for a writ of habeas corpus filed on behalf of a person in custody pursuant to the
judgment of a State court cannot be granted unless the applicant has exhausted the
remedies available in the courts of the State; or there is an absence of available
state corrective process; or there are existing circumstances which render the state
process ineffective.4 The exhaustion requirement is not a mere formality. It serves
the interests of comity between the federal and state systems by allowing the state
an initial opportunity to determine and correct any violations of a prisoner’s
federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).
The United States Court of Appeals for the Third Circuit has stated that
“[U]nder 28 U.S.C. § 2254(c), such a petitioner ‘shall not be deemed to have
exhausted the remedies available in the courts of the State ... if he has the right
under the law of the State to raise, by any available procedure, the question
presented.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001).
“A state prisoner is generally barred from obtaining federal habeas relief
unless the prisoner has properly presented his or her claims through one ‘complete
round of the State’s established appellate review process.’” Woodford v. Ngo, __
U.S. __, 126 S.Ct. 2378, 2386-87 (2006) (internal citations omitted); O'Sullivan v.

However, a Section 2254 petition may be denied on the merits
notwithstanding the failure of a petitioner to exhaust available state court remedies.
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Boerckel, 526 U.S. 838, 844-45 (1999)(while exhaustion does not require state
prisoners to invoke extraordinary remedies, the state courts must be afforded one
full opportunity to resolve any constitutional issues via completion of the State's
established appellate review process). The United States Supreme Court in
O’Sullivan explained, that state prisoners must “file petitions for discretionary
review when that review is part of the ordinary appellate review procedure in the
State.” Id. at 847. The United States Supreme Court added that, in determining
whether a state prisoner has preserved an issue for presentation in a federal habeas
petition, it must be determined not only whether a prisoner has exhausted his state
remedies, but also whether he has properly exhausted those remedies, i.e., whether
he has fairly presented his claims to the state courts. See id. at 848.
Fair presentation requires that the “substantial equivalent” of both the legal
theory and the facts supporting the federal claim are submitted to the state courts,
and the same method of legal analysis applied in the federal courts must be
available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227,
1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
Moreover, to satisfy exhaustion, the state court must be put on notice that a federal
claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The
exhaustion requirement is satisfied if the petitioner’s claims are presented through

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a collateral proceeding, such as a petition under the PCRA, and it is not necessary
to present federal claims to state courts both on direct appeal and in a PCRA
proceeding. Evans, 959 F.2d at 1230.
As previously discussed, Petitioner’s pending action claims entitlement to
federal habeas corpus relief on the grounds that he was denied effective assistance
of counsel in that plea counsel coerced him into entering a guilty plea with a
promise that he would receive a lesser sentence than the one actually imposed.
Azim adds that counsel also misinformed him as to the maximum sentence which
he was facing.
The April 23, 2013 Memorandum Opinion of the Superior Court of
Pennsylvania described Petitioner’s PCRA action as raising the following claims:
plea counsel was ineffective for failing to advise Azim of the correct maximum
sentence which he was facing and trial counsel was ineffective for promising
Petitioner a sentence which he did not receive. See Doc. 9-32, p. 6.
Since the arguments presently pending before this court are the substantial
equivalent of the arguments and presented to the Pennsylvania state court during
Petitioner’s aforementioned PCRA proceeding, under Evans and Lambert there is
no basis for a finding of non-exhaustion. Respondent’s argument will be denied as
meritless.

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Ineffective Assistance of Counsel
Respondent’s remaining argument states that even if this Court were to
conclude that Petitioner’s claims are properly presented, he is still not entitled to
relief because the denial of relief by the State courts with respect to the claims that
Azim was coerced and misinformed when entering his guilty plea was reasonable.
See Doc. 9-1, p. 10. The Respondent notes that it was also reasonable for the
sentencing court to find the PCRA testimony by sentencing counsel to be more
credible than that given by Petitioner. Moreover, the misinformation claim was
properly found to be meritless because at the time Azim’s guilty plea was entered
the maximum sentences which he was advised of by sentencing counsel were
applicable.
“The Antiterrorism and Effective Death Penalty Act of 1996 modified a
federal habeas court’s role in reviewing state prisoner applications in order to
prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
(2002).
Specifically, when a federal-law issue has been adjudicated on the merits by
a state court, the federal court reverses only when the decision was contrary to, or
involved an unreasonable application of, clearly established Federal law, as

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determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).5 See
generally, Knowles v. Mirzayance, __ U.S. __, 2009 WL 746274 *3 (March 24,
2009); Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255
F.3d 95, 104-05 (3d Cir. 2001). The Supreme Court has held that the “contrary
to” and “unreasonable application” clauses of § 2254(d)(1) have independent
meaning. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). As explained in
Bell, 535 U.S. at 694:
A federal habeas court may issue the writ under the
‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in our cases,
or if it decides a case differently than we have done on a
set of materially indistinguishable facts. . . . The court
may grant relief under the ‘unreasonable application’
clause if the state court correctly identifies the governing
legal principle from our decisions but unreasonably
applies it to the facts of the particular case. . . . The focus
of the latter inquiry is on whether the state court’s
application of clearly established federal law is
objectively unreasonable . . . .
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Specifically, 28 U.S.C. § 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; . . . .
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Furthermore, resolution of factual issues by the state courts are presumed to be
correct unless the petitioner shows by clear and convincing evidence that they are
not. 28 U.S.C. § 2254(e) (1).
In summary, the appropriate inquiry for federal district courts in reviewing
the merits of Section 2254 petitions is whether the state court decisions applied a
rule different from the governing law set forth in United States Supreme Court
cases, decided the case before them differently than the Supreme Court has done
on a set of materially indistinguishable facts, or unreasonably applied Supreme
Court governing principles to the facts of the particular case. See Keller v.
Larkins, 251 F.3d 408, 417-18 (3d Cir. 2001) (a district court entertaining a
§ 2254 action must first address whether the state court decision was contrary to
Supreme Court precedent); Martini v. Hendricks, 188 F. Supp.2d 505, 510 (D. N.J.
2002) (a § 2254 applicant must show that the state court decision was based on an
unreasonable determination of facts in light of evidence presented in the state
court proceeding). Findings of fact by the state courts are presumed to be correct
unless the petitioner shows by clear and convincing evidence that they are not. 28
U.S.C. § 2254(e)(1).
In Strickland v. Washington, 466 U.S. 668, 688 (1984), the United States
Supreme Court held that to prove a constitutional violation for ineffective

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assistance of counsel, a habeas petitioner must meet a two-pronged test. The
petitioner must show “that counsel’s performance was deficient” and that “the
deficient performance prejudiced the defense." Id. at 687; accord Deputy v.
Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994). In Deputy, the Third Circuit also
noted that it was not bound by any state court determinations as to a counsel's
performance. Id. at 1494.
To demonstrate deficient performance, a petitioner must show that
“counsel’s performance fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688; Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). A
reviewing court must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689; Jermyn, 266 F.3d at 282; Berryman v. Morton, 100 F.3d 1089, 1094 (3d
Cir. 1996). If, under the circumstances, counsel’s actions might be considered
sound trial strategy, the presumption is not rebutted, Strickland, 466 U.S. at 689,
because “substantial deference is to be accorded counsel’s tactical decisions.”
United States v. Wiener, 127 F. Supp. 2d 645, 648 (M.D. Pa. 2001). A decision
supported by “reasonable professional judgment does not constitute ineffective
assistance of counsel. See Burger v. Kemp, 483 U.S. 776, 794 (1987). It follows
that counsel cannot be deemed ineffective for pursuing a meritless claim. Hartey

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v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).
A petitioner satisfies the second prong and show prejudice when “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694; Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) “Without proof
of both deficient performance and prejudice to the defense . . . it could not be said
that the sentence or conviction resulted from a breakdown in the adversary process
that rendered the result of the proceeding unreliable, and the sentence or
conviction should stand.” Bell, 535 U.S. at 695 (internal quotations and citation
omitted).6
At the time of Petitioner’s state court proceedings, Strickland’s familiar
two-pronged test was the “clearly established federal law” applicable to ineffective
assistance of counsel claims. In addressing Azim’s present ineffective assistance
claims, the state courts applied essentially the same two-prong test for ineffective
assistance articulated in Strickland.
Specifically, under Pennsylvania state jurisprudence, a three-prong test is

A court may choose to address the prejudice prong first and reject an
ineffective assistance claim solely on the basis that the defendant was not prejudiced.
See Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).
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applied to ineffective assistance of counsel claims, but is, in substance, identical to
the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa.
1987). The Third Circuit has held that Pennsylvania’s test for assessing
ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v.
Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts v. Vaughn, 228 F.3d 178, 204
(3d Cir. 2000). Thus, it cannot be said that the state courts applied rules contrary
to prevailing principles established by the United States Supreme Court for the
adjudication of ineffective assistance claims.
Accordingly, under § 2254(d)(1), the relevant inquiry in addressing the
pending ineffectiveness claims is whether the Pennsylvania state courts’ decisions
involved an unreasonable application of Strickland or were based on an
unreasonable determination of the facts. Jacobs, 395 F.3d at 107 n.9; Werts, 228
F.3d at 204.
Next, a habeas petitioner “faces a heavy burden in challenging the voluntary
nature of his guilty plea.” Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991).
A court’s inquiry “is ordinarily confined to whether the underlying plea was both
counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569 (1989).
Federal habeas challenges to the voluntary nature of a guilty plea based on
unfulfilled promises or representations “must advance specific and credible

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allegations.” Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).

Criminal

defendants who enter into plea agreements must be advised of the direct
consequences of their plea. The Third Circuit has stated that the only
consequences considered direct are the maximum prison term and fine for the
offense charged. Parry v. Rosemeyer, 64 F.3d 110, 113-14 (3d Cir. 1995). There
is no due process requirement that a defendant be advised of adverse collateral
consequences of pleading guilty, even if they are foreseeable. Belle v. Varner,
2001 WL 1021135 *10 (E.D. Pa. 2001).
It is undisputed that Azim was represented by counsel and there was both a
February 27, 2008 written (Doc. 12, Exhibit A) and an February 28, 2008 oral plea
colloquy (Doc. 9-6) conducted by the state trial court. The written plea colloquy
clearly advised Petitioner of the maximum penalties which he faced for each
charged offense. Moreover, the plea court’s oral colloquy specifically informed
Azim that he was entering an open plea and that the sentencing judge would
decide the sentence to be imposed. See id. at p. 5.
In denying relief, the PCRA court stated that at the time Azim entered his
plea, it was not a certainty that any of Petitioner’s convictions were going to merge
for purposes of sentencing thus, counsel acted properly by advising Azim that he
faced a potential maximum 71 year sentence if convicted of all charges. The

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Superior Court of Pennsylvania agreed that counsel acted properly by advising
Azim at the time of his plea that he faced a maximum 71 year sentence since
merger was not certain at the time the plea was entered. Moreover, the Superior
Court added and the notes of testimony from the PCRA hearing confirm that plea
counsel also explained the potential merger of convictions to Petitioner. See Doc.
9-32, p. 10.
It is undisputed that plea counsel gave PCRA testimony that he never
advised Petitioner that he would receive a total 5 ½ to 15 year sentence or that he
wrote the same on the guilty plea colloquy. See Doc. 9-27, N.T. pp. 32-35.
Clearly, a the determination made by the state courts that plea counsel’s PCRA
testimony regarding the circumstances relating to the entry of plea was more
credible than that of Azim was not unreasonable.
Based upon a thorough review of the record, including the PCRA testimony
of Azim and plea counsel, as well as the written and oral plea colloquies this Court
is satisfied that the due process requirements set forth in Broce and Parry were
satisfied. It is apparent that trial counsel adequately discussed with Petitioner the
terms and ramifications of the plea offer. Petitioner’s request for habeas corpus
relief will be denied. An appropriate Order will enter.

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BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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