Humber v. Pennsylvania Board of Probation and Parole et al

Filing 8

MEMORANDUM OPINION (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 11/20/17. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE HUMBER, JR.,
Petitioner,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
Respondent.

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No.: 4:15-CV-1459
(Judge Brann)

MEMORANDUM OPINION
NOVEMBER 20, 2017
I.

BACKGROUND

George Humber, Jr. filed this counseled habeas corpus petition pursuant to
28 U.S.C. § 2254. Named as Respondent is the Pennsylvania Board of Probation
and Parole (Parole Board). Service of the petition was previously ordered.
Petitioner entered a guilty plea on September 10, 2010 to two counts of
statutory sexual assault in the Court of Common Pleas of Susquehanna County,
Pennsylvania.1 On October 21, 2010, Humber was sentenced to a six (6) to
twenty-three (23) month term of imprisonment followed by a period of probation.

1

The plea was the result of a negotiated agreement regarding two separate criminal cases which
was reached on the second day of a jury trial regarding one of the charges. Respondent indicates
that the guilty plea was entered on September 14, 2010.
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Petitioner did not file a direct appeal. However, Humber collaterally
challenged the legality of his plea via a November 17, 2011 action pursuant to
Pennsylvania’s Post Conviction Relief Act (PCRA).2 See Doc. 1, ¶ 11. The
PCRA petition is described as alleging that Petitioner’s guilty plea was not
voluntary due to coercion by his attorney who threatened to withdraw as counsel if
Petitioner did not plead guilty. The trial court denied PCRA relief on July 24,
2012 without conducting an evidentiary hearing. The Superior Court of
Pennsylvania affirmed the denial of PCRA relief on March 18, 2014. See
Commonwealth v. Humber, 100 A.3d 311 (Pa. Super. 2014)(Table). A petition for
allowance of appeal was denied by the Pennsylvania Supreme Court on November
5, 2014. See Commonwealth v. Humber, 105 A.2d 735 (Pa. 2014)(Table).
Humber claims entitlement to federal habeas corpus relief on the grounds
that his attorney repeatedly pressured him into entering a guilty plea. See Doc. 1, ¶
12. Relying on Heiser v. Ryan, 951 F.2d 559 (3d Cir. 1991), Humber claims this is
one of those cases where despite the undertaking of an appropriate plea colloquy,
collateral relief remains available due to the alleged coercion of defense counsel.
See Doc. 7, p. 2. As noted, Petitioner elaborates that on the second day of his trial

2

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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on one of the charges, his attorney threatened to withdraw as defense counsel
unless Humber agreed to enter a guilty plea. With respect to the issue of
timeliness, Petitioner states that after being released from prison, he discovered
that at the time he entered his plea his trial counsel was in possession of a report
from the New Jersey Division of Youth and Family Services which allegedly
contained exculpatory evidence. See id. at ¶ 18. Humber indicates that had he
been timely provided with the report he would not have entered a guilty plea.
According to the Respondent, Petitioner was charged in two separate cases
with allegations of sexual abuse of two juvenile females. One of the cases
proceeded to a jury trial. On the second day of trial, the parties negotiated a plea
which resolved both cases against Humber. During a resulting plea proceeding, the
trial court conducted an extensive oral colloquy to ensure that Humber’s plea was
knowing, voluntary, and intelligent.
The Respondent additionally notes that during a subsequent parole hearing,
Humber, now represented by different counsel, again admitted to the sexual abuse
of two juvenile female victims. Respondent concludes that since Petitioner’s plea
was knowing, voluntary and intelligent there is no basis for habeas corpus relief.

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II.

DISCUSSION
A.

Standard of Review

“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
determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).3 See
generally, Knowles v. Mirzayance, U.S. 111, 114 (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 of the United States has held that the “contrary to” and
“unreasonable application” clauses of § 2254(d)(1) have independent meaning.

3

Title 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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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 . . . .
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 sum, 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 by the United States Supreme Court,
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

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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. See 28
U.S.C. § 2254(e)(1).
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
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 United States Court of Appeals for 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).
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In Strickland v. Washington, 466 U.S. 668, 688 (1984), the Supreme Court
held that to prove a constitutional violation for ineffective 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
then that counsel cannot be deemed ineffective for pursuing a meritless claim.
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Hartey 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).4 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.
Specifically, under Pennsylvania state jurisprudence, a three-prong test is
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
4

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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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 claim 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.
B.

Guilty Plea

With respect to the New Jersey State records referenced by the Petitioner,
there is no explanation offered by Humber detailing why that report was
exculpatory. Moreover, in denying PCRA relief, the trial court noted that the New
Jersey reports were employed by defense counsel at trial and prior to the entering
of the plea agreement during the cross examination of a Commonwealth witness.
See Doc. 3-1, pp. 79-80.
The PCRA decision clearly undermines any claim by Petitioner that he was
not aware of the existence of the records or that those documents constitute new
evidence. Furthermore, the undisputed record shows that the only value of the
New Jersey documents was for impeachment purposes of a Commonwealth
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witness as such; they would not establish that Petitioner was innocent of the
charged crimes.
As previously noted, Petitioner claims that he was coerced into entering a
guilty plea. In Heiser, the Third Circuit addressed a claim by a Pennsylvania state
prisoner that trial counsel had coerced him into entering a guilty by threatening to
withdraw from the case unless he agreed to plead guilty. The Third Circuit
concluded that Heiser was entitled to an evidentiary hearing to determine whether
the guilty plea was rendered involuntary it was entered as a result of defense
counsel’s threat to withdraw.
In reaching that determination, the Third Circuit noted that no state court
evidentiary hearing was ever held on Heiser’s claim (exhaustion of state remedies
was excused on the basis of inordinate delay). Moreover, there had never been a
state court resolution of the issue. As a result, our Court of Appeals stated that
because Heiser’s claims were neither developed nor resolved by the state courts, an
evidentiary hearing in federal court was required.
By way of distinction, this is not a case where there was an excessive and
indefensible delay by the state courts in ruling on a motion to withdraw a guilty
plea. Here, Petitioner did not challenge the legality of his September 10, 2010
guilty plea until after he was already been granted parole. While it arguably may
have been more prudent for the PCRA court to hold an evidentiary hearing, both
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the trial court and Superior Court addressed Humber’s claim on the merits and in a
timely fashion. As a result, unlike Heiser this is not a case where there was no
prior state court resolution of the applicant’s argument. This is also not a situation
where defense counsel made no effort to prepare and undertake a criminal defense,
as the plea agreement in Humber’s case was not reached until two days after
commencement of a jury trial in one of the underlying criminal cases.
In Layne v. Moore, 90 Fed. Appx. 418 (3d Cir. 2004), the Third Circuit
addressed a similar claim of alleged coercion by defense counsel and found that
there was no basis for federal habeas corpus relief because the claim of a coerced
guilty plea had not been asserted in a timely fashion and there had been a knowing
and voluntary guilty plea. The petitioner in Layne, as in the present case, made
multiple admissions of guilt and there had been state court disposition of his
argument.
Humber neither filed a motion to withdraw his guilty plea nor pursued a
direct appeal. Moreover, the trial court conducted a parole hearing on June 28,
2011 at which time Humber was represented by different counsel. See Doc. 3-1,
Exhibit 6. During that proceeding, Petitioner testified that he was standing by the
guilty plea he previously entered. See id. at pp. 47-48.5

5

Humber was granted parole on August 23, 2011.
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On November 17, 2011, almost three months following his release from
prison, Petitioner filed a PCRA action which raised for the first time the claim
presently pending before this Court. While it is undisputed that the trial court did
not conduct a PCRA evidentiary hearing, it did so only after the Petitioner was
provided with PCRA representation who determined that Humber’s claim lacked
merit. See Doc. 3-1, p. 73.
Furthermore, the trial court issued a well reasoned opinion addressing and
dismissing for lack of merit the Petitioner’s argument. Humber was also granted
an opportunity to respond to the findings of the trial court before the dismissal of
his PCRA action. Following an appeal, the Superior Court affirmed the denial of
PCRA relief noting that there was no right to an evidentiary hearing in a PCRA
proceeding and that there had been no evidence presented which could support a
finding of coercion by defense counsel.
As was the case in Layne, the Petitioner has not presented any specific
evidence showing that his trial counsel coerced him into entering a guilty plea.
Moreover, given the lenient sentence obtained via the plea agreement, there is no
basis for a determination that counsel’s performance was deficient. The trial court
conducted an extensive oral colloquy to ensure that Humber’s plea was voluntary.
Thereafter, Petitioner again acknowledged his guilt while represented by different
counsel during a parole hearing.
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III.

CONCLUSION
There is nothing in the record, in this matter to establish that the plea was

not constitutionally acceptable. See Brown v. Folino, 2008 WL 682477 * 10 (M.D.
Pa. March 7, 2008)(Conner, J.). Unlike Heiser, there was a prior state court
resolution of the Petitioner’s argument. Under an application of the standards
discussed in Layne to the undisputed facts of this case, it is apparent that Humber is
not entitled to habeas corpus relief. Accordingly, his habeas corpus petition will be
denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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