CURRIN v. CAMERON et al
MEMORANDUM OPINION re 1 Petition for Writ of Habeas Corpus filed by JOHN PAUL CURRIN, denying the Petition for Writ of Habeas Corpus and denying a Certificate of Appealability. Signed by Chief Magistrate Judge Maureen P. Kelly on 4/3/2017. A copy of the opinion together with this Notice of Electronic Filing are being sent to Petitioner at his address of record via first class mail. (tmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN PAUL CURRIN,
KENNETH R. CAMERON; KATHLEEN )
KANE The Attorney General of the State of )
Civil Action No. 14-1523
Chief Magistrate Judge Maureen P. Kelly
John Paul Currin (“Petitioner”) was convicted of, inter alia, aggravated assault, robbery
and other charges related to a December 16, 2008, bank robbery and subsequent attempt to flee
from police. As a consequence, Petitioner was sentenced to 20 to 40 years incarceration.
Petitioner, proceeding pro se, raises two Grounds for Relief in the instant Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”).
Because neither of the Grounds merits the grant of federal habeas relief, the Petition will be
denied. Because jurists of reason would not find denial of the Petition debatable, a Certificate of
Appealability will also be denied.
I. FACTUAL HISTORY
The Court of Common Pleas of Fayette County summarized the factual background of
this case as follows in its Opinion filed March 2, 2012:
On December 16, 2008, defendant was living with his girlfriend, Ashley Lynn
Johnston, in Youngwood, Westmoreland County, Pennsylvania. Defendant told
Johnston that he was going to rob the Parkvale Bank located at Uniontown,
Pennsylvania, and that they would use two vehicles to commit the robbery.
Defendant drove his pickup truck from Youngwood to South Union
Township, Fayette County, followed by Johnston who was operating her silver
Chevrolet Malibu automobile. Defendant parked his truck in the Home Depot
parking lot and had Johnston drive him a short distance down Matthew Drive to the
Parkvale Bank. Defendant entered Parkvale Bank and approached the bank teller,
Betty Jo Helmick. Defendant told Helmick, "no dye packs, give me your money, no
dye packs." Helmick observed that the defendant had his right hand in his jacket
pocket like he had a gun. She picked up a row of currency from her cash drawer and
placed it in a stack on the counter. Defendant grabbed the money with his left hand,
exited the bank through the side door and entered Johnston's vehicle. Johnston
returned to the Home Depot parking lot where she dropped defendant off at his truck.
The state police responded to the robbery. At the time of the alarm a patrol
vehicle was in the immediate vicinity and stopped Johnston's vehicle near the
Uniontown Mall approximately a quarter mile from the Parkvale Bank. Johnston
confessed her involvement to the police and identified defendant as her accomplice.
She told the police that defendant was operating a bluish Chevrolet truck and that he
usually travelled home by way of State Route 119. Other officers spotted the truck
described by Johnston and gave pursuit using visible and audible signals for
During the pursuit defendant entered onto Richmond Road which dead-ends
into a parking lot. As the state police attempted to effectuate his arrest, defendant
rammed the police vehicles and tried to strike the police with his vehicle in an
attempt to escape. Defendant received a gunshot wound to his hand after which he
ECF No. 10-16 at 3 – 5.
II. PROCEDURAL HISTORY
A. State Court
The Pennsylvania Superior Court recounted the procedural history in the state courts as
follows in its Opinion dated June 18, 2014:
On June 3, 2009, after rejecting a plea offer of 15 to 30 years of
incarceration, Currin entered an open guilty plea to three counts each of
aggravated assault and criminal conspiracy, and one count each of robbery, theft
by unlawful taking, receiving stolen property, fleeing or attempting to elude police
officers, and criminal mischief. On July 31, 2009, the trial court sentenced him to
20 to 40 years of incarceration.
While represented by counsel, Currin filed a premature pro se PCRA
petition on August 7, 2009. The trial court incorrectly labeled the petition as
untimely and dismissed it without prejudice because of the court's lack of
jurisdiction. On August 10, 2009, Currin filed a pro se motion to modify his
sentence. He filed pro se notices of appeal on December 21, 2009 and December
29, 2009, docketed at Nos. 2186 WDA 2009 and 19 WDA 2010, respectively.
This Court ultimately quashed both appeals as premature because of the pending
post-sentence motion. In response to newly-appointed counsel’s August 26, 2011
motion to compel judgment, the trial court directed the clerk of courts to enter an
order indicating that Currin’s pro se post-sentence motion was denied by
operation of law. Currin filed a counseled appeal, docketed at No. 1478 WDA
2011, and on August 14, 2012, a panel of this Court affirmed the judgment of
On July 12, 2013, Currin filed a pro se PCRA petition. The court
appointed James V. Natale, Esquire to represent Currin. Attorney Natale filed a
"Motion to Withdraw with Supporting Brief" pursuant to Commonwealth v.
Turner, 544 A .2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc), in which he asserted that Currin's PCRA claims were
time-barred and otherwise lacked merit. On September 6, 2013, the PCRA court
granted Attorney Natale's motion to withdraw. On September 5, 2013, the PCRA
court issued a Pa.R.Crim.P. 907 notice in which it advised Currin of its intention
to dismiss his PCRA petition as untimely. On September 11, 2013, Currin filed a
pro se motion in opposition to counsel's motion to withdraw and a petition for writ
of habeas corpus, which the court treated as a response to the Rule 907 Notice
rather than another PCRA petition. On September 30, 2013, the PCRA court
dismissed Currin's PCRA petition without an evidentiary hearing.
ECF No. 1-1 at 2 – 3 (footnotes omitted). The Superior Court affirmed the denial of PCRA
relief. On October 6, 2014, Petitioner filed a Petition for leave to file a Petition for Allowance
of Appeal Nunc Pro Tunc (“Petition for Leave to File”) in the Pennsylvania Supreme Court,
which denied the Petition for Leave to File on November 6, 2014. ECF No. 10-3 at 2.
B. Federal Court
On the very day that the Pennsylvania Supreme Court denied the Petition for Leave to
File, i.e., November 6, 2014, Petitioner filed the instant pro se Petition in this Court, raising the
following two Grounds for Relief:
GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL
ECF No. 1 at 5.
GROUND TWO: INEFFECTIVE ASSITENCE [sic] OF COUNSEL
Id. at 7.
Petitioner also filed a Petition to Stay and Petition to Abey (“Petition to Stay”). ECF No.
2. Petitioner sought to have this present habeas Petition stayed pending the decision of the
Pennsylvania Supreme Court. However, given that the Pennsylvania Supreme Court denied his
Petition for Leave to File the very same day that the Petition to Stay was filed, the Petition to
Stay was rendered moot.
Respondents, through the District Attorney of Fayette County, filed an Answer denying
that Petitioner was entitled to any federal habeas relief. ECF No. 10. All parties have consented
to have the United States Magistrate Judge exercise plenary jurisdiction. ECF Nos. 5 and 9.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I,
'101 (1996) (the “AEDPA”) which amended the standards for reviewing state court judgments in
federal habeas petitions filed under 28 U.S.C. ' 2254 was enacted on April 24, 1996. Because
Petitioner=s habeas Petition was filed after its effective date, the AEDPA is applicable to this
case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).
Where the state courts have reviewed a federal issue presented to them and disposed of
the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA
provides the applicable deferential standards by which the federal habeas court is to review the
state courts’ disposition of that issue. See 28 U.S.C. § 2254(d) and (e).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded
upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Supreme Court explained that
Congress intended that habeas relief for errors of law may only be granted in two situations: 1)
where the state court decision was “contrary to . . . clearly established Federal law as determined
by the Supreme Court of the United States” or 2) where that state court decision “involved an
unreasonable application of … clearly established Federal law as determined by the Supreme
Court of the United States.” Id. at 404-05 (emphasis deleted). A state court decision can be
contrary to clearly established federal law in one of two ways. First, the state courts could apply
a wrong rule of law that is different from the rule of law required by the United States Supreme
Court. Secondly, the state courts can apply the correct rule of law but reach an outcome that is
different from a case decided by the United States Supreme Court where the facts are
indistinguishable between the state court case and the United States Supreme Court case.
The AEDPA also provides another ground for claiming relief, namely, where the state
court’s adjudication of the claim “resulted in a decision that was 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)(2).
A. Ground One – Ineffective Assistance of Counsel.
In Ground One, Petitioner contends that he received ineffective assistance of counsel for
several different reasons. Specifically, Petitioner complains that:
Counsel did not familarize [sic] himself with the case enough to advise
petitioner to plead guilty, gave errornous [sic] advise [sic] to plead guilty and
reject plea offer[.] Failed to object to Asst. Da. asserting false evidence onto
record. Following plea hea[r]ing petitioner told counsel Keiser [sic] to move to
withdraw the guilty plea becasue [sic] he was not guilty of aggravated assaults,
counsel failed to do so and failed to appear at pettioners [sic] sentencing hearing.
ECF No. 1 at 5.1
We deem Ground One to be substantially equivalent to the issues raised by Petitioner in
his appeal of the PCRA petition, specifically his issues enumerated as Issues Three and Four in
the appeal. Issues Three and Four as raised in the Pennsylvania Superior Court were as follows:
Although Petitioner repeatedly refers to his plea counsel as “Keiser” in fact, it appears that the
correct spelling of Attorney David Kaiser’s name is “Kaiser.” ECF No. 10-17 at 1.
3. Was Defense Counsel Keiser [sic] Ineffective for not objecting and allowing
the prosecutor to enter false/fabricated evidence or acts not based nor alleged in
4. Was defense (plea) counsel ineffective for failing to perform any pre-trial
investigation which in turn led to an erroneous advisement to the Appellant’s plea
ECF No. 1-1 at 5 – 6.
1. The Superior Court’s disposition was not “contrary to” in the first sense.
The Pennsylvania Superior Court addressed these two issues on the merits in the PCRA
opinion. ECF 1-1 at 10 – 13. In addressing the claim of plea counsel’s alleged ineffectiveness
raised in Ground One, the Superior Court applied the state court test for ineffective assistance of
counsel derived from Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (the “Pierce standard”).
Id. at 13 n.6. Essentially, the Superior Court found, under Pierce, that there was no merit to the
claims that Petitioner alleges counsel was ineffective for failing to raise or to pursue. The Pierce
standard has been found to be materially identical to the ineffectiveness test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984). Werts, 228 F.3d at 203. The United States
Court of Appeals for the Third Circuit has ruled that this Pierce standard is not "contrary to"
Strickland in the first sense of being a wrong rule of law. Hence, Petitioner cannot show that the
Superior Court’s disposition of Ground One is contrary to United States Supreme Court
precedent in the first sense of applying a wrong rule of law.
2. The Superior Court’s disposition is not “contrary to” in the second sense.
Nor has Petitioner shown that the Superior Court’s disposition is contrary to United
States Supreme Court precedent in the second sense, i.e., he fails to point to a case decided by the
United States Supreme Court where the facts are indistinguishable from his case but where the
Superior Court here reached an outcome different from the outcome reached by the United States
3. The Superior Court did not unreasonably apply Strickland.
Petitioner does not even argue that the Superior Court’s disposition is an unreasonable
application of Strickland, Petitioner has failed to show that the Superior Court’s decision was an
unreasonable application of United States Supreme Court precedent on ineffective assistance of
a. The Strickland test
In Strickland, the United States Supreme Court explained that there are two components
to demonstrating a violation of the right to effective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires
showing that "counsel's representation fell below an objective standard of reasonableness." Id. at
688; see also Williams v. Taylor, 529 U.S. at 390-91. In reviewing counsel’s actions, the court
presumes that counsel was effective. Strickland, 466 U.S. at 689. There is no one correct way to
represent a client and counsel must have latitude to make tactical decisions. Lewis v.
Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990)(“[W]hether or not some other strategy would
have ultimately proved more successful, counsel’s advice was reasonable and must therefore be
sustained.”). In light of the foregoing, the United States Court of Appeals for the Third Circuit
has explained, "[i]t is  only the rare claim of ineffective assistance of counsel that should
succeed under the properly deferential standard to be applied in scrutinizing counsel's
performance." United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997)(quoting United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).
Second, under Strickland, the defendant must show that he was prejudiced by the
deficient performance. "This requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To
establish prejudice, the defendant "must show that 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." Id. at
694; see also Williams, 529 U.S. at 391.
b. Strickland and AEDPA taken together are doubly deferential.
Moreover, because the Superior Court addressed Petitioner’s claims of ineffectiveness on
the merits, this Court must apply the deferential standards of the AEDPA as to those claims,
which results in a doubly deferential standard as explained by the United States Supreme Court:
Establishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v.
Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and
when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at ––––,
129 S.Ct., at 1420. The Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at –––– [129 S.Ct., at 1420].
Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel's actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland's
Premo v. Moore, 562 U.S. 115, 122 - 123 (2011) (quoting Harrington v. Richter, 562 U.S. 86,
105 (2011)). Accord Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (“‘A state court must be
granted a deference and latitude that are not in operation when the case involves [direct] review
under the Strickland standard itself.’ Id. Federal habeas review of ineffective assistance of
counsel claims is thus ‘doubly deferential.’ Pinholster, 131 S.Ct. at 1403. Federal habeas courts
must ‘take a highly deferential look at counsel's performance’ under Strickland, ‘through the
deferential lens of § 2254(d).’”). As explained below, Petitioner fails to show under this doubly
deferential standard that the Superior Court’s disposition of Ground One constituted an
unreasonable application of Strickland.
c. The Superior Court’s application of the ineffectiveness standard.
In addressing Ground One, the Superior Court found that Petitioner’s plea counsel was
not ineffective for failing to “investigate, review the evidence, and prepare his case [which
allegedly] resulted in circumstances that forced him to plead guilty to crimes that he did not
commit.” ECF No. 1-1 at 10.
Essentially, Petitioner alleged that he was actually innocent of at
least two of the aggravated assault charges because he did not damage the police cars in driving
away from the police or trying to back up when the police cornered him with three police cars.
The Superior Court rejected this claim of actual innocence of two of the aggravated assault
charges as follows:
Based upon our independent review of the record in this case, however, we conclude
that none of the issues Currin wanted to raise in a counseled PCRA petition were
meritorious, and thus, the deprivation of counsel [during the PCRA proceedings] was
not prejudicial to him. In reviewing the list of issues that Currin wanted to raise in a
counseled PCRA petition (as well as his third, fourth, and fifth issues raised here on
appeal), we conclude that they all lack any merit.
With respect to Currin’s claims regarding Attorney Kaiser’s alleged
ineffectiveness, including both those set forth in Attorney Natale’s motion to
withdraw (second issue) and the third, fourth and fifth issues here on appeal, they all
essentially make the same argument – namely that Attorney Kaiser’s failure to
investigate, review the evidence, and prepare his case, resulted in circumstances that
forced him to plead guilty to crimes that he did not commit. In particular, Currin
claims that the evidence supports his testimony at his plea proceedings ( N .T., 6/
3/2009, at 23) that there was little or no damage to two of the three police cars at the
scene, and that two of the three officers involved in his capture suffered no injuries at
all. Currin's Brief at 20- 26. According to Currin, Attorney Kaiser's lack of
information on these points prejudiced him, as it caused Attorney Kaiser to ignore
Currin's claims of innocence as to the two aggravated assault charges and to advise
instead that he plead guilty to every charged offense ( including the two aggravated
assaults he did not commit).
These claims, however, are clearly meritless. Currin plead guilty to three
counts of aggravated assault under 18 Pa. C.S.A. § 2702(a)(2), which provides as
§2702. Aggravated assault
Offense defined.--A person is guilty of aggravated assault
if he :
(2) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to any of the
officers, agents, employees or other persons
enumerated in subsection (c) or to an employee of an
agency, company or other entity engaged in public
transportation, while in the performance of duty;
18 Pa.C.S.A. § 2702(a)(2). To be found guilty under this provision, the
Commonwealth has no obligation to demonstrate any serious bodily injury to a police
officer. Instead, it is sufficient for the Commonwealth to establish intent to inflict a
serious bodily injury. Commonwealth v. Marti, 779 A.2d 1177, 1183 ( Pa. Super.
2001). This intent may be proven by circumstances that reasonably suggest the
defendant intended to cause a serious bodily injury. Id. The certified record on appeal
plainly reflects that the Commonwealth could satisfy this evidentiary burden at trial,
as the Affidavit of Probable Cause attached to the criminal complaint against Currin
stated, in pertinent part, as follows:
CURRIN's vehicle came to rest facing these Troopers and as the
troopers attempted to arrest CURRIN, CURRIN began to spin his
tires in another attempt to flee these Troopers[,] placing these
Troopers in fear of their lives by CURRIN attempting to run over the
Troopers to flee this area of Fayette County.
Affidavit of Probable Cause, 12/16/2008, at 1.
Accordingly, contrary to his protestations, Currin could well have been
convicted of three counts of aggravated assault at trial regardless of whether there
was actual damage to all three police cars or actual injuries to the three police
officers. Instead, the Commonwealth needed to prove only that Currin attempted
to inflict serious bodily injury on the three police officers, which likely could
have been established by the trial testimony of those police officers. As such,
Currin’s contention that Attorney Kaiser negligently advised him to plead guilty to
all three counts of aggravated assault (in exchange for a potential reduction in
sentence) is meritless. Even if, as Currin now contends, Attorney Kaiser failed to
ferret the evidence regarding the lack of damage to the police cars and/ or the lack
of injuries to the police officers, Currin cannot state a meritorious claim of
ineffective assistance of counsel since he has not established how Attorney
Kaiser's advice to plead guilty was deficient in any manner.
ECF No. 1-1 at 10 – 13 (footnotes omitted).
Petitioner simply fails to carry his burden to show that the foregoing was unreasonable
application of Strickland as to the claims of ineffectiveness in Ground One. Essentially, the
Superior Court found Petitioner’s assertions of actual innocence of two of the crimes of
aggravated assault to be meritless. Accordingly, his counsel could not be ineffective for failing
to pursue a meritless claim of actual innocence or for advising him to plead guilty as to those two
charges of aggravated assault notwithstanding Petitioner’s erroneous belief in his actual
innocence. The Superior Court’s disposition of Ground One is an eminently reasonable
application of Strickland. Werts, 228 F.3d at 203 ("counsel cannot be ineffective for failing to
raise a meritless claim."). Accordingly, Ground One does not afford Petitioner any relief in these
federal habeas proceedings.
4. Ineffectiveness for advising to enter open plea.
To the extent that the Superior Court did not address the claim that Attorney Kaiser was
ineffective for advising Petitioner to plead guilty to an open charge and to reject the plea offer
from the prosecution of 15- 30 years, and to the extent this claim was not procedurally defaulted,
the record is sufficient before this Court to conclude, even under de novo review, that Attorney
Kaiser was not ineffective. Attorney Kaiser was not ineffective when he advised Petitioner that
he considered the sentence of 15 – 30 years in the plea offer to be excessive and that it was a
calculated gamble to make an open plea as Petitioner might get a lesser sentence but that he
might also get a greater sentence. The plea Court engaged in a colloquy with Petitioner about his
open plea, assuring that Petitioner understood what he was doing and assuring that Petitioner
himself thought 15 – 30 years was too long of a sentence and informing Petitioner that there was
a possibility that Petitioner could receive a sentence higher than 15 - 30 years. ECF No. 10-17 at
5 – 6; 10 – 11. Petitioner’s counsel explained during the plea colloquy that “I did tell Mr. Currin
that he is taking a gamble. You could give him up to that statutory maximum or you could give
him less than the plea offer. I told him that it is a gamble with a general plea. It is in your
discretion. I did explain that to him.” Id. at 11. The plea judge asked Petitioner whether he
understood that and Petitioner replied “Yes.” Id.
In light of the calculated risk that Petitioner knowingly undertook, he cannot establish
ineffectiveness on the part of his plea counsel, Kaiser for advising an open plea. Yarborough v.
Gentry, 540 U.S. 1, 9 (2003) (“While confessing a client's shortcomings might remind the jury of
facts they otherwise would have forgotten, it might also convince them to put aside facts they
would have remembered in any event. This is precisely the sort of calculated risk that lies at the
heart of an advocate's discretion.”); Howard v. Campbell, 305 F. App'x 442, 445 (9th Cir. 2008)
(“It is not our task to reexamine the wisdom of taking (or not) a calculated risk at trial; counsel's
election to avoid such a risk does not amount to ineffective assistance.”); Tong Xiong v. Felker,
681 F.3d 1067, 1079 (9th Cir. 2012) (“Xiong's counsel took a calculated risk in an attempt to
elicit testimony that he was ultimately unable to elicit; instead he elicited cross-examination
testimony from the prosecution's expert that was unfavorable. Under Strickland, this is not
enough to demonstrate the requisite incompetence, nor prejudice, to trigger § 2254(d) protection.
A ‘fairminded jurist’ could conclude that the cross-examination did not constitute ineffective
assistance.”). Accordingly, this claim of Attorney Kaiser’s alleged ineffectiveness contained in
Ground One does not afford Petitioner federal habeas relief.
B. Ground Two – Ineffective Assistance of Counsel
In Ground Two, Petitioner claims that his plea counsel and sentencing counsel were
ineffective. Specifically, Petitioner asserts that
Counsel Jeremy Davis (Public Defender) made appearance at petitioners [sic]
sentencing. Petitioner told him that (David Keiser) whom failed to appear, was
told to withdraw guilty plea. Davis said “Too late, have something good to say to
the judge.[”] Following the sentencing hearing petitioner asked Counsel (Davis)
to appeal the sentence and my plea. Counsel never did. Said counsel was
removed from representation at a ‘Grazier’ hearing, and later was errornously [sic]
re-appointed in place of “Conflicts Counsel” whom was in place of DAVIS,
Petitioner told Davis to ammend [sic] Brief, refused and shortly thereafter
ECF No. 1 at 7.
Certain factual background should be noted in the context of considering this claim.
Apparently, Attorney Kaiser, who was Petitioner’s attorney at the guilty plea negotiations and
plea hearing, was a member of the Fayette County Public Defenders’ Office. ECF No. 10-17 at
1. Attorney Davis was, at the time of the Petitioner’s sentencing hearing, also a member of the
Fayette County Public Defenders’ Office. ECF No. 10-18. Attorney Davis represented
Petitioner at the sentencing hearing. Id. Apparently, sometime after the sentencing, Petitioner
filed a pro se post sentence motion, notwithstanding that he was still represented by counsel. See
ECF No. 1-1 at 2 – 3. Petitioner filed an appeal to the Superior Court which was docketed at
1478 WDA 20-11 (Pa. Super.). Eventually, after a Grazier hearing, Petitioner was appointed
new counsel to represent him on the direct appeal to the Superior Court. Attorney Brent Peck, of
the Office of Conflicts Counsel, was appointed to represent Petitioner and Attorney Peck filed a
Brief for Appellant in the Superior Court on April 18, 2012. ECF No. 10-5 at 1 – 40; ECF No.
10-2 (Superior Court Docket sheet). On June 22, 2012, Attorney Davis, the same attorney who
represented Petitioner at the sentencing hearing, and who was now in private practice and no
longer with the Fayette County Public Defenders’ Office, ECF No. 10-2 at 1 (listing Attorney
Davis’s law firm as “Davis & Davis Attorneys at Law”), filed a praecipe for appearance for
Petitioner. As such, Attorney Peck filed an application to withdraw as counsel. Id. at 3. As
explained by the Superior Court, “Attorney Peck petitioned to withdraw after filing the brief in
this matter due to his resignation as conflicts counsel in Fayette County. Jeremy Davis, Esquire
has entered his appearance on behalf of Appellant. Attorney Davis shall represent Appellant for
purposes of any request for re-argument or potential petition for allowance of appeal.” ECF No.
10-7 at 7 n.2.
1. Direct appeal claims against Attorney Davis.
a. Failure to file a direct appeal.
Apparently, Petitioner asked Attorney Davis to file a direct appeal after Petitioner was
sentenced on July 31, 2009, ECF No. 10-1 at 8, and Attorney Davis never did so. It appears that
this request was made at the post-trial stage, while Attorney Davis was still representing
Petitioner as a member of the Fayette County Public Defenders’ Office. This claim of
ineffectiveness fails because Petitioner cannot show any prejudice, because a direct appeal to the
Pennsylvania Superior Court was eventually filed by Attorney Peck on September 14, 2011, id. at
15, and was entertained by and disposed of by the Superior Court on August 14, 2012 on the
merits. ECF No. 10-7. Petitioner cannot identify any prejudice from the allegedly deficient
performance by Attorney Davis’s alleged failure to file a direct appeal of his sentence or his plea.
b. Failure to amend the brief on direct appeal.
As to the appeal to the Superior Court, where Petitioner was initially represented by
Attorney Peck, Petitioner asserts that Attorney Davis, as successor private counsel, was
ineffective because he failed to amend the appellate brief filed by Attorney Peck, notwithstanding
Petitioner’s request that he do so.
There are at least two problems with this particular claim of Attorney Davis’s alleged
ineffectiveness. It does not appear that this claim of Attorney Davis’s ineffectiveness was raised
in the state courts. See ECF No. 1-1 at 5 – 7 (listing claims raised in the PCRA appeal and
claims raised in the PCRA petition.) Accordingly, this claim of Attorney Davis’s alleged
ineffectiveness is procedurally defaulted. Even if not procedurally defaulted, Petitioner offers no
details about this claim. He does not indicate how he wanted Attorney Davis to amend the brief
or which claim he wanted to be raised that was not raised. Without such information, Petitioner
fails to carry his burden to show that Attorney Davis provided deficient performance, yet alone
that Petitioner was prejudiced by Attorney Davis’s actions or inactions.
c. Failure to file a motion to withdraw the plea.
The last claim of ineffectiveness concerns Petitioner’s allegation that he asked Attorney
Davis at the sentencing hearing, apparently before Petitioner was sentenced, to move to withdraw
his guilty plea and that Attorney Davis allegedly told Petitioner, “Too late, have something good
to say to the judge.[”]
The Superior Court addressed this issue on the merits as follows, in its June 18, 2014,
Opinion, affirming the denial of PCRA relief:
The third issue, alleging ineffectiveness of Attorney Jeremy Davis, is
facially meritless. While a claim that an attorney mistakenly advised Currin that
he could not withdraw his guilty plea before sentencing would clearly have merit
if factually supported, the record in this case shows that Attorney Davis was not
appointed to represent Currin until well after his direct appeal had been filed with
this Court. See Commonwealth v. John Paul Currin, 1478 WDA 2011 *7 n.2
(Pa. Super. Aug. 14, 2012) (unpublished memorandum). Because Attorney Davis
did not represent Currin prior to sentencing, he could not have advised Currin that
he could not withdraw the plea at that time.
ECF No. 1-1 at 9.
As is obvious from the factual recounting above by this Court based on the record before
this Court, Attorney Davis did, in fact, represent Petitioner at his sentencing hearing.
Accordingly, we find that the foregoing disposition by the Superior Court of this claim of
Attorney Davis’s ineffectiveness to have “resulted in a decision that was 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)(2).
We note in this regard, that Petitioner failed to point out this fact, and Respondents
likewise did not catch this error on the part of the Superior Court. Nevertheless, in light of
Petitioner’s pro se status and in light of the clarity of the factual error, this Court, sitting as a
court in federal habeas, has the independent obligation to apply the law correctly, irrespective of
the parties’ arguments or lack thereof. Smith v. Mallick, 514 F.3d 48, 51 (D.C. Cir. 2008)
(holding that courts have an independent obligation to apply the correct law regardless of the
Although establishing that the Superior Court’s decision resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding, is a necessary precondition to warrant federal habeas relief under the AEDPA,
it is not a sufficient condition to granting federal habeas relief. Dennis v. Sec., 834 F.3d 263, 283
(3d Cir. 2016) ("When a state court ruling is based on a reasoned, but erroneous, analysis, federal
habeas courts are empowered to engage in an alternate ground analysis—relying on any ground
properly presented—but, in such a case, the federal court owes no deference to the state court. In
Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the state court had
‘simply found that respondent's rejection of the plea was knowing and voluntary’ in rejecting
defendant's ineffective counsel claim and ‘failed to apply Strickland,’ despite referencing the
performance and prejudice prongs of Strickland its opinion. Id. at 1390. ‘By failing to apply
Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state
court's adjudication was contrary to clearly established federal law’ and the Supreme Court
analyzed the Strickland claim de novo. Id. at 1390. The Court was not filling a gap in Lafler.
Instead, it was employing different analysis that was very much a part of the case, and supplied
an alternate ground for concluding, on de novo review, that there was no ineffectiveness of
counsel."); Aleman v. Sternes, 320 F.3d 687, 690 (7th Cir. 2003) (if the state court erred and
applied the wrong standard, rendering its decision as "contrary to" Supreme Court law, AEDPA's
standard of review at §2254(d) no longer applies; but, petitioner still must establish under a de
novo review an entitlement to the relief he seeks under § 2254(a): that he is "in custody in
violation of the Constitution or laws or treaties of the United States."), overruled on other
grounds as recognized in Eddleman v. McKee, 471 F.3d 576, 583 (6th Cir. 2006); Gibbs v.
VanNatta, 329 F.3d 582, 584 (7th Cir. 2003) (the petitioner "is not entitled to relief in the federal
courts unless he can show that he was in fact denied effective assistance of counsel, not merely
that the state courts bobbled the issue."). Petitioner must establish for this Court that his Sixth
Amendment right to counsel was violated.
Hence, confronted with this situation, our task is clear. We must undertake a de novo review
of this ineffectiveness claim, and determine, in the first instance, whether Petitioner has established
the ineffective assistance of Attorney Davis. For the purpose of considering this claim, we assume
all of the following to be true: 1) Petitioner asked Attorney Davis prior to the sentencing hearing’s
commencement to withdraw the plea; 2) Attorney Davis told Petitioner that it was too late to move to
withdraw his guilty plea, and 3) Attorney Davis was incorrect as a matter of state law that it was too
late to withdraw the guilty plea. Essentially, we assume that Petitioner has established the deficient
performance prong of Strickland as to this claim of ineffectiveness.
Next, we consider the prejudice prong of Strickland. In the context of a claim that Attorney
Davis was ineffective for failing to make a motion to withdraw the plea before sentencing, the
burden of proving prejudice is on Petitioner to show that if Attorney Davis did file such a motion,
there is a reasonable probability that the motion would have been granted. Boodie v. United States,
No. 15-CV-02864-FB, 2017 WL 507281, at *1 (E.D.N.Y. Feb. 7, 2017) (in a Section 2255
proceeding the Court held: “Because the Petition bases Boodie's ineffectiveness claim on his
counsel's alleged failure to move to withdraw his plea, Boodie must show a reasonable probability
that the motion would have been granted. See Gonzalez v. United States, 722 F.3d 118, 130–33 (2d
Cir. 2013). This requires the petitioner to ‘show a fair and just reason for requesting the
withdrawal.’ Fed. R. Crim. P. 11(d)(2)(B)”); Blanton v. United States, No. 3:10-CR-0237-L (01),
2013 WL 6003453, at *6 (N.D. Tex. Sept. 9, 2013) (“With regard to Movant's contention that his
attorney was ineffective for failing to file a motion to withdraw his guilty plea, he has not
demonstrated that such a motion would have been granted.”), supplemented by, No. 3:10-CR-0237-L
(01), 2013 WL 6009949 (N.D. Tex. Sept. 30, 2013), report and recommendation adopted, No. 3:10CR-0237-L, 2013 WL 6003482 (N.D. Tex. Nov. 13, 2013), and report and recommendation
adopted, No. 3:10-CR-0237-L, 2013 WL 6003482 (N.D. Tex. Nov. 13, 2013).
Based on a thorough review of the record before this Court, Petitioner fails to establish the
reasonable likelihood that if Attorney Davis had made the motion to withdraw, then the Court of
Common Pleas of Fayette County would have granted such motion. We assume that Petitioner
would have based his motion to withdraw his guilty plea on the same contention that he argued as to
the alleged ineffectiveness of Attorney Kaiser, namely, that he was actually innocent of two of the
three charges of aggravated assault. While, at the time of Petitioner’s sentencing hearing in July
2009, there may have been some confusion regarding the state of the law for withdrawing a guilty
plea before sentencing based upon an assertion of actual innocence, in 2015, the Pennsylvania
Supreme Court clarified that a bald assertion of innocence would not be sufficient to merit the
granting of a motion to withdraw a guilty plea and that trial courts had discretion to determine the
credibility of such assertions of innocence. Commonwealth v. Carrasquillo 115 A.3d 1284 (Pa.
2015). However, even if a bald assertion of actual innocence would have been sufficient to merit the
withdrawal of a guilty plea and the trial court was not able to judge the credibility of a criminal
defendant’s assertion of actual innocence at the time of the sentencing hearing, i.e., July 31, 2009,
here, it would not have been necessary to make a judgment about Petitioner’s credibility in order to
reject his actual innocence claim with respect to two of the tree counts of aggravated assault. This is
because, as the Superior Court explained above in its June 18, 2014, Opinion, ECF No. 1-1 at 9 – 13,
which rejected the ineffectiveness claims against Attorney Kaiser, rejection of Petitioner’s claims of
actual innocence is not based on believing or not believing Petitioner’s statements but rather is based
upon rejecting Petitioner’s mistaken view of the law concerning aggravated assault.
The Pennsylvania Superior Court’s rejection of Petitioner’s claim that he was actually
innocent of two of the three aggravated assault charges was not based on a credibility determination.
The Superior Court did not reject as incredible Petitioner’s assertions that he did not strike two of the
three police cars and that he did not cause any injury to two of the three police officers but rather, the
Superior Court accepted his assertions as true. However, the Superior Court simply rejected
Petitioner’s argument as to the legal significance of his asserted facts. The Superior Court found that
Petitioner’s failure to strike two of the three police cars and the absence of any injury to two of the
three police officers did not mean, as Petitioner had argued, that he could not be guilty of two of
three aggravated assault convictions. As the Superior Court explained, Petitioner simply had a
mistaken view of the law; the acts that he undoubtedly did, fleeing from the officers and attempting
to flee even after the officers boxed him in, when Petitioner spun his wheels in an attempt to escape,
which the officers asserted put them in fear of their lives, constituted acts that qualify as “aggravated
assault” irrespective of actual injury to the officers or to their vehicles. Accordingly, because
Petitioner fails to show that there is a reasonable probability that if Attorney Davis had made a
motion to withdraw the guilty plea, based on such legally mistaken claims of actual innocence, it
would have been granted, Petitioner cannot show prejudice under Strickland by Attorney Davis’s
failure to have filed such a motion. Therefore, this claim of Attorney Davis’s ineffectiveness for
failing to file such a motion to withdraw the guilty plea cannot provide a basis for relief in these
federal habeas proceedings.
Accordingly, based on the foregoing, Ground Two fails to afford Petitioner any federal
habeas relief because he fails to show that he was prejudiced by any alleged deficient performance by
C. Certificate of Appealability.
Because jurists of reason would not find the foregoing denial of the habeas Petition
debatable, a Certificate of Appealability is denied.
For the reasons set forth herein, the Petition is denied. A Certificate of Appealability is
BY THE COURT:
Date: April 3, 2017
s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
JOHN PAUL CURRIN
Houtzdale, PA 16698-1000
All counsel of record via CM-ECF
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