TAYLOR v. COMMONWEALTH OF PENNSYLVANIA

Filing 31

MEMORANDUM OPINION & ORDER denying 14 Petition for Writ of Habeas Corpus filed by KEVIN TAYLOR. Signed by Magistrate Judge Robert C. Mitchell on 7/3/2017. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEVIN TAYLOR,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA,
Respondent.

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Civil Action No. 16-945

Magistrate Judge Mitchell

MEMORANDUM OPINION AND ORDER
Petitioner, Kevin Taylor, brings this habeas corpus action pursuant to 28 U.S.C. § 2254,
challenging his convictions, following a guilty plea entered on March 4, 2013, on two counts of
theft by unlawful taking and one count of loitering and prowling at nighttime, and the sentence
of six and one-half to thirteen years of imprisonment, imposed by the Court of Common Pleas of
Allegheny County, Pennsylvania on August 7, 2013 at Criminal Action Nos. 201200530,
2012008018 and 201212644. The charges stemmed from Petitioner’s stealing of three vehicles
over a twelve-month period. For the reasons that follow, the petition will be denied.
Procedural History
Petitioner was charged, at No. 201200530, with loitering and prowling at nighttime, theft
from a motor vehicle and criminal attempt. At No. 2012008018, he was charged with theft by
unlawful taking and receiving stolen property. At No. 201212644, he was charged with theft by
unlawful taking and receiving stolen property. On March 4, 2013, Petitioner appeared before the
Honorable Joseph K. Williams. Petitioner was represented by Patrick Thomassey, Esquire and
the Commonwealth by Assistant District Attorney Michael Ball. Petitioner completed a Guilty
Plea Explanation of Defendant’s Rights form and entered a negotiated plea of guilty. (Answer

Ex. 7) (APP 45-54.)1 Pursuant to the agreement, the Commonwealth withdrew two (2) counts of
receiving stolen property and the counts of theft from a motor vehicle and criminal attempt.
Sentencing was deferred pending a presentence report. Sentencing was set for May 29, 2013.
Petitioner failed to appear at sentencing and a warrant was issued. Petitioner was
eventually apprehended on the bench warrant. On August 7, 2013, Petitioner appeared before
Judge Williams for sentencing. At CC 201212644, Count 1, theft by unlawful taking, Petitioner
was sentenced to a term of incarceration of not less than three (3) years nor more than six (6)
years and a consecutive period of seven (7) years of probation. At CC 201208018, Count 1, theft
by unlawful taking, Petitioner was sentenced to a term of incarceration of not less than three (3)
years nor more than six (6) years and a consecutive period of seven (7) years of probation, which
was consecutive to CC 201212644. At CC 201200530, Count 1, loitering and prowling at
nighttime, Petitioner was sentenced to a term of incarceration of not less than six (6) nor more
than twelve (12) months and a consecutive term of one (1) year of probation, which was
consecutive to CC 201208018. Thus, Petitioner was sentenced to an aggregate term of
incarceration of not less than six and one half (6½) years nor more thirteen (13) years of
imprisonment and a consecutive term of fifteen (15) years of probation.
On August 15, 2013, Petitioner, through Jeffrey Weinberg, Esquire, filed a Motion to
Withdraw Plea. (Answer Ex. 8) (APP 55-59). On August 30, 2013, the Commonwealth, through
Assistant District Attorney Ball, filed a Commonwealth’s Response to Post-Sentence Motion.
(Answer Ex. 9) (APP 60-67). On September 4, 2013, Petitioner, through Attorney Weinberg,
filed an Amended Motion to Withdraw Plea. (Answer Ex. 10) (APP 68-71). On December 17,
2013, the post sentence motion was denied by operation of law.
1

ECF No. 17.
2

On January 16, 2014, Petitioner, through Attorney Weinberg, filed a Notice of Appeal.
(Answer Ex. 11) (APP 72-76). On February 13, 2014, Petitioner, through Attorney Weinberg,
filed a Concise Statement of Error Complained of Pursuant to Rule 1925(b). (Answer Ex.12)
(APP 77-79). On March 7, 2014, Judge Williams filed his Opinion. (Answer Ex. 13) (APP 8083). Petitioner’s appeal was docketed in the Superior Court of Pennsylvania at No. 118 WDA
2014. On April 8, 2014, Petitioner, through Attorney Weinberg, filed a Praecipe to Discontinue.
On April 8, 2014, Petitioner’s appeal was discontinued. (Answer Ex. 15) (APP 86).
On July 7, 2014, Petitioner, through Attorney Weinberg, filed a Post Conviction Relief
Act Petition (PCRA). (Answer Ex. 16) (APP 87-97). In the petition, Petitioner has raised the
following claims:
A. Defendant’s plea was unknowing involuntary unintelligent and entered as a
result of ineffective assistance of counsel in violation of Article I, Section 9 of the
Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the
United States Constitution as Attorney Thomassey prepared defendant’s 68
question guilty plea colloquy[,] answered the questions himself and failed to
adequately explain to defendant what he was signing;
B. Defendant attempted to withdraw his plea of guilty prior to sentencing by this
court and counsel made no attempt to preserve this issue for the court[’]s review.
(Answer Ex. 16 at 3) (APP 90.)
On July 11, 2014, the Commonwealth, through Assistant District Attorney Ronald
Wabby, filed a Commonwealth’s Answer to Post Conviction Relief Act Petition. (Answer Ex.
17) (APP 98-116). On July 25, 2014, Judge Williams issued an Order directing Petitioner to file
an Amended PCRA petition to correct the pleading defects that were noted by the
Commonwealth. On August 27, 2014, Petitioner, through Attorney Weinberg, filed an Amended
PCRA petition. (Answer Ex. 18) (APP 117-128). On November 19, 2014, Petitioner appeared
before Judge Williams for an evidentiary hearing. Attorney Weinberg represented Petitioner.
ADA Wabby represented the Commonwealth. Testimony was heard from the Petitioner and
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from Attorney Thomassey.
On April 6, 2015, Judge Williams filed an Order, which granted relief on the sentencing
claim (correcting his sentence to 3 to 6 years of imprisonment, followed by one year of
probation) and denied relief on the guilty plea-based claim. (Answer Ex. 19) (APP 129-130).
Also, on April 6, 2015, Judge Williams filed an Opinion. (Answer Ex. 20) (APP 131-132).
On April 30, 2015, Petitioner, through Attorney Weinberg, filed a Notice of Appeal.
(Answer Ex. 21) (APP 133-142). On May 12, 2015, Judge Williams filed an Opinion, which
incorporated the April 6, 2015 Opinion and elaborated upon it. (Answer Ex. 22) (APP 143-144).
On July 7, 2015, Petitioner, through Attorney Weinberg, filed a Brief for Appellant in the
Superior Court of Pennsylvania, which was docketed at No. 674 WDA 2015. (Answer Ex. 24)
(APP 149-227). On appeal, Petitioner raised the following claims:
I. That the trial court erred in dismissing Appellant’s PCRA Petition by
concluding that his earlier guilty plea was knowingly and voluntarily made and as
such that his trial counsel was effective.
II. That the trial court erred in dismissing Appellant’s PCRA Petition by
concluding that trial counsel was effective despite failing to request that the Trial
Court create a record of his request to withdraw his plea of guilty.
(Answer Ex. 24 at iv) (APP 153.)
On December 23, 2015, the Superior Court affirmed the judgment of the Court of
Common Pleas of Allegheny County denying the PCRA petition. (Answer Ex. 26) (APP 246253).
On January 20, 2016, Petitioner, through Attorney Weinberg, filed a Petition for
Allowance of Appeal in the Supreme Court of Pennsylvania, which was docketed at No. 26
WAL 2016. (Answer Ex. 28) (APP 257-296). In his petition, Petitioner raised the following
claim:

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I. Did the Superior Court err as a matter of law in holding [that] Mr. Taylor failed
to establish by a preponderance of the evidence that trial counsel was ineffective,
contrary to this Honorable Court’s decision in Commonwealth v. Forbes?
(Answer Ex. 28 at 4) (APP 263.) On April 13, 2016, the Supreme Court denied the
petition. (Answer Ex. 30) (APP 298).
On June 24, 2016, Petitioner filed this action pro se, and it was docketed at Civil Action
No. 16-945. In his pro se petition, Petitioner raised the following claim:
Attorney told me to waive my case to court that he worked a plea for 1 (one) year
of probation. I was never told there wasn’t a plea agreement until after I plead
guilty. If I had known there wasn’t a plea agreement, I never would have plead
guilty.
(ECF No. 1 ¶ 12.) On September 1, 2016, Petitioner, through Chris Rand Eyster, Esquire, filed
an Amended Petition for Writ of Habeas Corpus (ECF No. 14) and Petitioner’s Brief in Support
of Habeas Corpus Petition (ECF No. 15). In his Amended Petition for Writ of Habeas Corpus,
Petitioner raises the following claim:
Petitioner was denied effective assistance of counsel where he requested counsel
to file a motion to withdraw his guilty plea before sentencing and counsel failed to
file a motion to withdraw Petitioner’s guilty plea prior to sentencing.
The Petitioner was instructed by counsel to waive his preliminary hearing because
counsel told him that he had a plea deal worked out to one year of probation.
Petitioner was under the impression when he pled guilty that he was getting that
1-year probation deal. However, prior to sentencing, counsel told Petitioner that
that judge wasn’t happy with him. So, Petitioner asked counsel to withdraw his
guilty plea prior to sentencing and counsel refused to do so saying “[n]ot with me
as your attorney.” (N.T. 11/19/14, at 11). At sentencing, before pronouncement
of sentence, Petitioner asked the court to withdraw his plea. Petitioner stated the
reason for this request was “I am not totally the guilty party[.]” (N.T. 8/7/13, at
4). At that point counsel refused to advocate on behalf of his client and created a
conflict of interest. Nonetheless, the court summarily denied the request without
any inquiry of Petitioner on the record. Petitioner filed a motion to withdraw his
guilty plea after sentencing, which was denied.
(ECF No. 14 ¶ 12.)
On September 6, 2016, Respondent filed an Answer to the amended petition (ECF No.
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16). Respondent concedes that the petition is timely and that the claim presented is exhausted
and not procedurally defaulted. (Answer at 10, 13, 14.) However, it argues that the claim is
without merit because the Superior Court’s decision is not an unreasonable application of
Supreme Court law.
On November 21, 2016, Petitioner filed a reply brief (ECF No. 22), which was corrected
on November 29, 2016 (ECF No. 23.) The reply brief argues that there were several “fair and
just reasons” why Petitioner should have been allowed to withdraw his guilty plea: 1) Petitioner
believed (perhaps erroneously) that he was going to receive a sentence of probation, not 3 to 6
years of imprisonment; 2) counsel told him that Judge Williams would be “upset” with him
because of his bond forfeiture status, and thus he would be predisposed to impose a heavy
sentence on Petitioner, which is exactly what occurred; and 3) Petitioner testified that he was
“not totally the guilty party” and the Commonwealth never established that he knew or should
have known that he was driving a stolen car, as required to secure convictions for the crimes of
theft and receiving stolen property.
On March 1, 2017, an order was entered (ECF No. 24), directing the parties to file
supplemental briefs on the issue of prejudice. Petitioner filed his supplemental brief on March
31, 2017 (ECF No. 26). Respondents filed their supplemental brief on April 11, 2017 (ECF No.
27). Petitioner filed a reply brief on May 3, 2017 (ECF No. 30).
Exhaustion
The first issue that must be addressed by a federal district court when considering a
habeas corpus petition filed by a state prisoner is whether the prisoner has exhausted available
state court remedies as required by 28 U.S.C. §§ 2254(b) and (c). The Antiterrorism and
Effective Death Penalty Act of 1996 (the AEDPA), provides that:

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(1) 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 unless it appears
that-(A) the applicant has exhausted the remedies available in the courts of the State;
or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights
of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be
estopped from reliance upon the requirement unless the State, through counsel,
expressly waives the requirement.
28 U.S.C. § 2254(b).
It is well settled that, as a matter of comity, the state should be provided with the first
opportunity to consider the claims of constitutional violations and to correct any errors
committed in its courts. Rose v. Lundy, 455 U.S. 509, 518 (1981); Preiser v. Rodriguez, 411
U.S. 475 (1973). Accordingly, before a state prisoner’s claims may be addressed by a federal
habeas court, the constitutional issues must first have “been fairly presented to the state courts”
for review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)). Both the factual and legal basis for the claim must have been presented to the
state courts. Thus, the Supreme Court held that “[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of law guaranteed by the
Fourteenth Amendment, he must say so, not only in federal court, but in state court.” Duncan v.
Henry, 513 U.S. 364, 366 (1995).
The Court of Appeals has stated that:

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To “fairly present” a claim, a petitioner must present a federal claim's factual and
legal substance to the state courts in a manner that puts them on notice that a
federal claim is being asserted. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct.
276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509,
30 L.Ed.2d 438 (1971). It is not sufficient that a “somewhat similar state-law
claim was made.” Harless, 459 U.S. at 6, 103 S.Ct. 276. Yet, the petitioner need
not have cited “book and verse” of the federal constitution. Picard, 404 U.S. at
277, 92 S.Ct. 509.
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). The court has further identified four
ways in which a petitioner can “fairly present” a claim:
(a) reliance on pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like fact situations, (c)
assertion of the claim in terms so particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Evans v. Court of Common Pleas, Delaware Cty., Pa., 959 F.2d 1227, 1232 (3d Cir. 1992)
(citing Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982) (en banc)).
As Respondent has indicated, Petitioner raised his claim in his PCRA petition and on
appeal therefrom. Thus, the claim is exhausted and not procedurally defaulted and the Court
turns to the merits of the claim.
Standard of Review
A petitioner is only entitled to federal habeas relief if he meets the requirements of 28
U.S.C. § 2254(d), which 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; or
(2) 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.
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28 U.S.C. § 2254(d). Section 2254(d) “firmly establishes the state court decision as the starting
point in habeas review.” Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999). This provision
governs not only pure issues of law, but mixed questions of law and fact such as whether counsel
rendered ineffective assistance. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).
The Supreme Court has held that, “[u]nder the ‘contrary to’ clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently than this Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Court
has also held that:
the “unreasonable application” prong of § 2254(d)(1) permits a federal habeas
court to “grant the writ if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably applies that principle to the
facts” of petitioner=s case. In other words, a federal court may grant relief when a
state court has misapplied a “governing legal principle” to “a set of facts different
from those of the case in which the principle was announced.” In order for a
federal court to find a state court’s application of our precedent “unreasonable,”
the state court’s decision must have been more than incorrect or erroneous. The
state court’s application must have been “objectively unreasonable.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76
(2003) (other citations omitted)). In other words, “the question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007) (citations omitted).
Section 2254(e) provides that:
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.

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28 U.S.C. § 2254(e)(1).
Petitioner’s claim involves the ineffectiveness of trial counsel. The United States
Supreme Court:
established the legal principles that govern claims of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). An ineffective assistance claim has two components: A petitioner
must show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense. Id., at 687, 104 S.Ct. 2052. To establish deficient
performance, a petitioner must demonstrate that counsel’s representation “fell
below an objective standard of reasonableness.” Id., at 688, 104 S.Ct. 2052. We
have declined to articulate specific guidelines for appropriate attorney conduct
and instead have emphasized that “ [t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” Ibid.
Wiggins, 539 U.S. at 521.
To satisfy the second prong of counsel ineffectiveness, “a defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 534 (quoting Strickland, 466 U.S. at 694.) In
addition, although a petitioner must satisfy both prongs to succeed on his ineffectiveness claim,
the Court noted that “ [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course should be followed.”
Strickland, 466 U.S. at 697.
The Court of Appeals has held that Pennsylvania’s test for assessing ineffective
assistance of counsel claims is not contrary to Strickland. Werts, 228 F.3d at 204. Thus, the
relevant question is whether the decisions of the Pennsylvania courts involve an unreasonable
application of Strickland. Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir. 2005). See also Taylor
v. Horn, 504 F.3d 416, 430 (3d Cir. 2007). That is, a petitioner must show that the state courts
“applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell v.
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Cone, 535 U.S. 685, 699 (2002).
The question is not whether the defense was free from errors of judgment, but whether
defense counsel exercised the customary skill and knowledge that normally prevailed at the time
and place. Strickland, 466 U.S. at 689. The Supreme Court has “declined to articulate specific
guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘[t]he proper
measure of attorney performance remains simply reasonableness under prevailing professional
norms.’” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
During the guilty plea hearing, the Commonwealth, through Assistant District Attorney
Ball, summarized the factual basis of the plea as follows:
In reference to 201212644 had the Commonwealth proceeded to trial we would
have called Officer Croll, along with the victim, Lloyd Marts and Deb Marts, and
Officer Hensel of the Braddock Hills Police Department.
They would have testified that on or about November 4th of 2011 at 782
Cottonwood Drive in Monroeville, the officers responded for a report of a theft.
The vehicle was actually taken on July 30th of 201[1]. The victim in this
case had observed a vehicle which she thought was hers in a parking lot of a
restaurant. She was able to write down the tag number. It was later learned that
this vehicle was taken to a tow yard during a traffic stop that had occurred prior to
that.
The Officer that did the tow on that vehicle was from Braddock Hills, and
he identified the driver as the defendant who was in possession of the stolen
vehicle.
The vehicle had been towed to that garage, unknowing at the time that it
was a stolen vehicle. It was later determined that it was. The defendant was
driving that vehicle.
****
In reference to 201208018 had the Commonwealth proceeded to trial we
would have called Officer McKenna of the Monroeville police department, along
with the victim, Michael Marts. They would have testified that on or about May
22nd, 2012 in that same general area as the first case, the victim reported that his
Mazda vehicle had been stolen. The victim decided to drive through a
neighborhood that was close in proximity. He observed that vehicle being driven
by the defendant at that time.
The officers were not able to arrive in time to stop the driver of that
vehicle, but he did identify the defendant as being in that vehicle.
****
Reference to 201200530 had the Commonwealth proceeded to trial we
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would have called Office Plate, along with the victim, Alexander Bernard. They
would have testified that on or about January 3rd, 2012, at 0219 hours, the
officers responded to the victim’s residence.
He indicated to the police that the defendant was located inside of his
Chevy Equinox, which was parked on his property. He approached the vehicle
and was attempting to hold the door closed until the police arrived. The
defendant was able to slip to the other side and escape.
The police were able to apprehend him a short time later and the victim
positively identified him when he arrived at that residence.
(Guilty Plea Hr’g at 7-10.)
Failure to Withdraw Guilty Plea
Petitioner alleges that trial counsel was ineffective for failing to withdraw his guilty plea
before the sentence was pronounced at the sentencing hearing. Respondents contend that
Petitioner has failed to demonstrate that trial counsel’s performance was deficient because there
was no legal basis to move to withdraw the guilty plea and that he has failed to demonstrate that
he suffered prejudice because, without a “fair and just reason” to withdraw the plea, even if
counsel had made such a motion, it would have been denied (as indeed it was when Petitioner
made the motion himself).
At the PCRA hearing, the court stated that:
During the time that I allowed for [a presentence report], he gets a hot urine for
cocaine, I mean so I think that he start doing aggravating things during this window
that I allowed for a pre-sentence report. He gets high and does other things which
further contaminates the dynamic in this relationship. Then after he gets—we have
to issue a warrant for him to catch him, he comes to court, what appeared to me at
that point would be a last ditch effort to further prolong the inevitable. And that I
think was how I was understanding what was happening.
Mr. Thomassey has been practicing law here for thirty years. He is very—
he goes to great lengths to be an advocate for his clients. If he tells me or I
imagine his client that that’s a dead horse, you can’t come in after the sequence of
events in this case and say I want to withdraw my plea, you can’t say for what
reason, the reason you withdraw your plea is because I’m not guilty. But that
wasn’t the issue, his guilt or not, he just didn’t want to—he just didn’t want to
face that that was the date that he was getting sentenced. And he, the way I
interpreted it, was just trying to make a last ditch end run to get out of here.

N.T., 11/19/14, at 36-37. In its April 6, 2015, opinion, the court stated that:
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On November 19, 2014, a hearing was held. The Court heard from Mr.
Taylor and his prior lawyer, Patrick Thomassey. Taylor’s version of events failed
to persuade. His PCRA testimony was at odds with the sworn testimony he
provided at the change of plea proceeding. That difference rarely does favors for
the credibility of a PCRA petitioner. Taylor does not fall into the exception camp.
While recognizing that negative, the Court is also influenced by the failure of
Taylor to advance a fair and just reason for allowing his withdraw[al] of the plea
immediately before sentencing. As said by his trial lawyer, the motion was not
going to be made by him because “there is no basis for” it. Transcript, pg 21.
Undeterred by the advice of his lawyer, Taylor then made a pro se request to
withdraw the plea. The Court denied it. Most importantly, at the PCRA hearing,
Taylor did not advance any reason why his plea should have been allowed to be
withdrawn. After some many months of thinking about this matter, one would
think that a fair and just reason would have been advanced. Its absence is fatal to
Taylor’s guilty plea based PCRA claim.
Out of abundance of caution, the Court will also address the claim that
was actually pled—that is the plea was not knowing[ly] and voluntarily entered.
The Court believes his prior lawyer on what transpired before the plea was
entered. Transcript, pg 24 (“We went outside the colloquy outside. I went over the
colloquy with him, I made sure he understood all his rights.”). The Court is also
influenced by the many visits and office meetings counsel had with his lawyer to
go over the matter and Taylor’s criminal past. His criminal past allows for an
inference that he knows—better than a first timer—what a guilty plea is all about.
His present efforts to undo the sanctity of this plea is nothing more than a last
ditch effort to escape the penalty this Court imposed.
(Answer Ex. 20 at 1-2.)
Finally, in its May 12, 2015 opinion, the PCRA court stated that:
Trial counsel did not rendered [sic] ineffective assistance of counsel by failing to
make a motion to withdraw his plea. At the hearing, trial counsel said the motion
was not made because he did not feel there was a legal or factual basis for it. The
Court agrees with this assessment. As such, there is no merit to the underlying
claim.
(Answer Ex. 22 at 2.)
After reviewing these holdings, the Superior Court concluded that:
we find support in the record for the PCRA court’s factual and credibility
determinations, and we discern no error in its legal conclusion. Notably,
Appellant did not assert any grounds for the withdrawal of his plea before the
sentencing court. N.T. Sentencing, 8/17/13, at 4. In his PCRA petition, Appellant
baldly asserts that plea counsel’s ineffectiveness caused Appellant to enter an
involuntary and unknowing plea and resulted in the lack of a record regarding
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Appellant’s request to withdraw his plea. PCRA Petition, 8/27/14, at ¶15(A), (B).
Of course, Appellant’s first assertion belies the admissions made at his plea
colloquy. N.T. Guilty Plea, 3/14/13, at 3-7. Appellant is bound by those
statements and cannot now be heard to assert grounds for withdrawing the plea
which contradict them. See Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.
Super. 2003) (“A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.”) (citation omitted).
As for Appellant’s second assertion, plea counsel explained why he did
not request the withdrawal of the plea:”[T]here wasn’t any basis to withdraw it.
[Appellant] made a knowing, voluntary and intelligent decision to plead guilty
with my advice and my counsel, and I don’t file frivolous motions. It just wasn’t
there. I knew the judge wasn’t happy with [Appellant], but that really wasn’t my
concern.” N.T., 11/9/14, at 22. The PCRA court agreed with plea counsel’s
assessment. PCRA Court Opinion, 5/12/15, at 2. Thus, we conclude that plea
counsel had a rational basis for refusing to request withdrawal of the plea.
Appellant’s contrary argument fails.
(Answer Ex. 26 at 6-7.)2
Petitioner argues that the record establishes that, at the very least, there was a
misconception in his mind as to whether he was going to receive probation. He notes that
Attorney Thomassey testified that “I thought the Judge would probably give him probation.”
(PCRA Hr’g at 24.)
However, the PCRA court, having heard testimony from Petitioner and Attorney
Thomassey, concluded that there was no plea agreement for probation and that Petitioner was
told this information. His contention that he believed otherwise – despite his counsel’s
information – does not support a claim that counsel was ineffective for failing to move for
withdrawal of his guilty plea, especially when there was no basis for such a motion.

2

In his reply brief, Petitioner cites this testimony to argue that Attorney Thomassey was not even
concerned about Petitioner and “effectively deprived” him of counsel at this proceeding (ECF
No. 30 at 2). However, in context, it is clear that Attorney Thomassey was explaining that he
declined Petitioner’s request to move for withdrawal of his guilty plea because there was no legal
basis for it, not because he thought the judge would be angry with him for making such a motion.
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Petitioner also contends that Attorney Thomassey told him that Judge Williams would be
“upset” with him at the sentencing hearing due to his bond forfeiture status and thus he did not
move to withdraw the guilty plea for this reason as well. However, if Petitioner is correct, he has
not explained how Attorney Thomassey would have fared any better with a motion to withdraw
than Petitioner himself did, namely, that the motion was denied immediately. Thus, he has not
demonstrated that, “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Finally, Petitioner contends that he made the statement that he was “not totally the guilty
party” and that such a protestation of innocence provided fair and just reason to allow him to
withdraw his guilty plea. However, his argument is not an accurate summary of Pennsylvania
law on this topic.
On June 15, 2015, the Pennsylvania Supreme Court issued a decision in the case of
Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), concluding that “a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court to grant such a request.”
Id. at 1285. The court noted that it had held, in Commonwealth v. Forbes, 299 A.2d 268 (Pa.
1973), that a motion to withdraw a guilty plea prior to sentencing should be granted if supported
by a fair and just reason and substantial prejudice will not inure to the Commonwealth.
Subsequently, in Commonwealth v. Randolph, 718 A.2d 1242, 1245 (Pa. 1998), the court
admonished the Superior Court for having applied a new standard whereby participation in a plea
colloquy resulted in the defendant’s waiver of the rights established in Forbes. The Pennsylvania
Supreme Court observed that, based upon these holdings, the Superior Court in Carrasquillo had
concluded that, although the defendant made “fantastical and outlandish claims during his
sentencing hearing,” it was required by Forbes to accept his “unambiguous assertion of

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innocence—regardless of its rationality, clarity, sincerity, or plausibility.” 115 A.3d at 1288
(citing Commonwealth v. Carrasquillo, 78 A.3d 1120, 1126 (Pa. Super. 2013)).
The court stated that:
this Court’s Forbes decision reflects that: there is no absolute right to withdraw a
guilty plea; trial courts have discretion in determining whether a withdrawal
request will be granted; such discretion is to be administered liberally in favor of
the accused; and any demonstration by a defendant of a fair-and-just reason will
suffice to support a grant, unless withdrawal would work substantial prejudice to
the Commonwealth. See Forbes, 450 Pa. at 190-91, 299 A.2d at 271. The
perfunctory fashion in which these principles were applied to the circumstances
presented in Forbes, as well as in the ensuing decision in [Commonwealth v.]
Woods, 452 Pa. 546, 307 A.2d at 880 [(Pa. 1973)], also lent the impression that
this Court had required acceptance of a bare assertion of innocence as a fair-andjust reason. See, e.g., Forbes, 450 Pa. at 192, 299 A.2d at 272 (“Obviously, [the]
appellant, by [his] assertion of innocence—so early in the proceedings[, i.e., one
month after the initial tender of a plea,]—offered a ‘fair and just’ reason for
withdrawal of the plea.”)
Id. at 1291-92 (footnote omitted). The court then stated that both Forbes and Woods were
distinguishable on their facts, particularly in terms of the timing of the innocence claim.
Nevertheless, in light of the Randolph Court’s forceful emphasis upon such an
innocence declaration, and its concomitant rejection of the common pleas and
intermediate courts’ reliance on the defendant’s previous concessions to guilt, see
Randolph, 553 Pa. at 230-31, 718 A.2d at 1244-45, we cannot criticize the
intermediate court for its understanding that credibility judgments relative to
innocence were foreclosed.
***
Presently, we are persuaded by the approach of other jurisdictions which
require that a defendant’s innocence claim must be at least plausible to
demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a
plea. More broadly, the proper inquiry on consideration of such a withdrawal
motion is whether the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote
fairness and justice. The policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of discretion to the common pleas
courts.
This case, in our view, illustrates why the existing per se approach to
innocence claims is unsatisfactory. Here, Appellee’s assertion was first made in
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sentencing allocution, after the close of the evidentiary record (which, in any
event, was dedicated to a different purpose, since no motion to withdraw had been
advanced before or during such record’s development). No request was made to
reopen the record for an orderly presentation in support of Appellee’s request.
Moreover, the bizarre statements made by Appellee in association with his
declaration of innocence wholly undermined its plausibility, particular in light of
the Commonwealth’s strong evidentiary proffer at the plea hearing. In the
circumstances, the common pleas court should not have been required to forego
sentencing; rather, we find that it acted within its discretion to refuse the
attempted withdrawal of the plea.
Id. at 1292-93 (footnote omitted).
Accepting the Pennsylvania Supreme Court’s statement that its decision in Carrasquillo
did not overrule Forbes, but rather clarified what had been some confusion in the law, it must be
concluded that, as of the date Petitioner’s appeal was decided on December 23, 2015, a
defendant could not rely upon a bare assertion of innocence to require a trial court to grant a
request to withdraw a guilty plea.3 Indeed, even under a Forbes standard, Petitioner’s vague and
equivocal statement that he was not “totally the guilty party” is far removed from the cases in
which defendants provided “fair and just” reasons for moving to withdraw guilty pleas.
Moreover, even if Carrasquillo represented a change in the law, it is a statement of
Pennsylvania law. The Supreme Court has “repeatedly held that ‘it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions’”
Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (quoting Estelle v. McGuire, 502 U.S. 62,
67-68 (1991)).
Petitioner has cited to no authority from the Supreme Court of the United States (or
3

Oddly, the Superior Court did not cite Carrasquillo, Forbes, Woods or Randolph. The only
case it cited was Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003), which held
(somewhat akin to the Superior Court’s holding in Randolph) that a person who elects to plead
guilty is bound by the statements he makes in open court while under oath. Again, this may have
been incorrect as a matter of Pennsylvania law—as it appears to foreclose any attempts to
withdraw a guilty plea after a colloquy—but that is not the issue before this Court.
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indeed any federal court) that would require a trial court to grant a request for withdrawal of a
guilty plea based upon, at most, a bare and equivocal assertion of innocence, nor would trial
counsel be rendered ineffective for failing to make such a motion under the circumstances.
Thus, he has not demonstrated that counsel’s performance was ineffective and he has not
demonstrated that he suffered prejudice.
Petitioner has not demonstrated that the Superior Court’s decision was an unreasonable
application of Strickland. Therefore, the petition will be denied.
Certificate of Appealability
Additionally, a certificate of appealability should be denied. The decision whether to
grant or deny a certificate of appealability is “[t]he primary means of separating meritorious from
frivolous appeals.” Barefoot v. Estelle, 463 U.S. 880, 893 (1983). If a certificate of
appealability is granted, the Court of Appeals must consider the merits of the appeal. However,
when the district court denies a certificate of appealability, the Court of Appeals can still grant
one if it deems it appropriate. 28 U.S.C. § 2253.
“A certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons
addressed above, this petition does not present a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of appealability should be denied.
For these reasons, the amended petition for writ of habeas corpus (ECF No. 14) will be
denied and a certificate of appealability will be denied. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEVIN TAYLOR,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA,
Respondent.

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Civil Action No. 16-945

Magistrate Judge Mitchell

ORDER
AND NOW, this 3rd day of July, 2017,
IT IS HEREBY ORDERED that the amended petition for writ of habeas corpus
submitted by Petitioner Kevin Taylor (ECF No. 14) is denied and a certificate of appealability is
denied.

s/Robert C. Mitchell___________
ROBERT C. MITCHELL
United States Magistrate Judge

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