NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1475
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ERIC C. MCCOLLISTER,
Appellant
v.
SUPERINTENDENT CAMERON; THE DISTRICT ATTORNEY OF MONTGOMERY
COUNTY; and THE ATTORNEY GENERAL OF PENNSYLVANIA
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-11-cv-00525)
District Judge: Honorable Lawrence F. Stengel
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 30, 2013
Before: JORDAN, VANASKIE AND COWEN, Circuit Judges
(Filed: August 15, 2013)
___________
OPINION
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VANASKIE, Circuit Judge.
Eric C. McCollister appeals the denial of his petition for a writ of habeas corpus
submitted pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability on the
issue of whether McCollister‟s waiver of counsel was made knowingly and intelligently
in light of the fact that, during the waiver colloquy, he was advised that his sentencing
range was 40 to 80 years‟ imprisonment, with no mandatory minimum prison term, when
in fact he faced a mandatory minimum prison term of 25 years and a maximum term of
life imprisonment under Pennsylvania‟s “three strikes” law, 42 Pa. Cons. Stat. Ann. §
9714. Because the state court‟s rejection of McCollister‟s challenge to the adequacy of
the waiver of counsel colloquy was neither contrary to nor an unreasonable application of
clearly established federal law, we will affirm the District Court‟s denial of McCollister‟s
habeas petition.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
McCollister was charged with burglary, criminal trespass, robbery, aggravated
assault, and recklessly endangering another person arising out of a home invasion and
assault in July of 2006. Dissatisfied with representation provided by four separate
attorneys, McCollister requested that he be allowed to represent himself at trial, with
appointed counsel acting in a standby capacity. Following a lengthy and comprehensive
colloquy, during which McCollister was informed that his sentencing exposure was 40 to
80 years in prison with no mandatory minimum prison term, the trial court accepted the
waiver of counsel as “knowing, intelligent and voluntary.” (App. 64.)
On May 2, 2008, McCollister was convicted by a jury on all counts. It was not
until four months after the jury returned its verdict, however, that the Commonwealth
2
filed a Notice of Intent to Seek Twenty-Five Year Mandatory Sentence due to Conviction
of Third Violent Crime Offense. McCollister‟s two prior qualifying offenses included
burglary of a residence in 1987, and burglary of a residence in 1989.1 McCollister was
sentenced to an aggregate term of 40 years to life imprisonment, including a 25-year
mandatory minimum sentence pursuant to 42 Pa. Cons. Stat. Ann. § 9714 (a)(2).
McCollister filed a timely direct appeal to the Pennsylvania Superior Court.
On direct appeal, McCollister, among other things, asserted that the waiver of
counsel colloquy was inadequate because it did not accurately apprise him of the
sentencing range he faced, including the fact that there would be a mandatory minimum
prison term of 25 years. The Superior Court rejected this assertion, explaining:
[McCollister] contends the court‟s waiver of counsel colloquy did not
advise him of the permissible sentencing range. . . . [McCollister] asserts
he was “confused” and “frustrated” during the colloquy, and the court
failed to advise him of the potential for a “two strikes” mandatory
minimum sentence pursuant to 42 Pa. C.S. § 9714(a)(2). [McCollister]
insists he would not have waived his right to counsel at trial if he had
known his minimum sentence could be mandatory. [McCollister] avers his
waiver of counsel was involuntary and unknowing.
***
Rule 121 of the Pennsylvania Rules of Criminal Procedure sets forth the
requirements for an effective waiver of the right to counsel and states in
pertinent part:
Rule 121. Waiver of Counsel (A) Generally.
(1) The defendant may waive the right to be represented by
counsel.
1
The Commonwealth contends that it was not until after the conclusion of
McCollister‟s trial that it learned that the structures burglarized by McCollister more than
twenty years earlier were occupied, triggering the 25-year mandatory minimum prison
term and maximum prison term of life under Pennsylvania‟s three strikes law. See 18
Pa.C.S. § 9714(a)(2).
3
(2) To ensure that the defendant's waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, at a minimum, shall elicit the following
information from the defendant:
(a) that the defendant understands that he or she has the right
to be represented by counsel, and the right to have free
counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges
against the defendant and the elements of each of those
charges;
(c) that the defendant is aware of the permissible range of
sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the
right to counsel, the defendant will still be bound by all the
normal rules of procedure and that counsel would be familiar
with these rules;
(e) that the defendant understands that there are possible
defenses to these charges that counsel might be aware of, and
if these defenses are not raised at trial, they may be
lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not timely
asserted, may be lost permanently; and that if errors occur
and are not timely objected to, or otherwise timely raised by
the defendant, these errors may be lost permanently.
***
(C) Proceedings Before a Judge. When the defendant seeks to
waive the right to counsel after the preliminary hearing, the
judge shall ascertain from the defendant, on the record,
whether this is a knowing, voluntary, and intelligent waiver of
counsel.
(D) Standby Counsel. When the defendant's waiver of
counsel is accepted, standby counsel may be appointed for the
defendant. Standby counsel shall attend the proceedings and
shall be available to the defendant for consultation and
advice. Pa. R.Crim.P. 121(A), (C), (D).
“A waiver colloquy must ... always contain a clear demonstration of the
defendant‟s ability to understand the questions posed to him during the
colloquy.” Commonwealth v. McDonough, 571 Pa. 232, 236 n.1, 812 A.2d
504, 507 n.1 (2002). For example, the court should inquire about the
defendant‟s age, educational background, and basic comprehension skills.
Id.
4
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the [Trial Judge], we
conclude [McCollister‟s] issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion at 4-24 (finding ... [McCollister‟s
waiver of counsel was knowing, intelligent and voluntary where (a) court
conducted meticulous colloquy record, informing [McCollister] of nature of
charges and permissible range of sentences for offenses charged, (b) court
advised [McCollister] of his right to object to evidence, but court had no
duty to teach [McCollister] laws of evidence, (c) [McCollister] had
opportunity to state on the record that he was confused, but instead chose to
participate in colloquy, (d) [McCollister] stated under oath and on the
record that no one had forced or threatened him to waive counsel, and that
no one had promised him anything in exchange for his waiver, (e)
ultimately [McCollister] stated three times under oath that he desired to
waive his right to counsel.))
(Commonwealth v. McCollister, No. 1401 EDA 2009, pp. 14, 20-22 (Pa. Super. Ct. Aug.
30, 2010) (Memorandum)).
On January 25, 2011, McCollister filed a pro se Petition for Writ of Habeas
Corpus. Among the issues presented in the habeas petition was that he was denied his
right to counsel because the plea colloquy did not accurately set forth the sentencing
range to which he was exposed, including the 25 year mandatory minimum prison term
under Pennsylvania‟s three strikes rule. The Magistrate Judge to whom the § 2254
petition was referred recommended denial of relief on this claim, observing that the state
court‟s finding that the waiver colloquy was adequate “is neither contrary to, nor an
unreasonable application of, United States Supreme Court precedent.” (October 18, 2011
Report and Recommendation at 31.) The District Court overruled McCollister‟s
objections to the Report and Recommendation and denied the habeas petition. This
appeal followed.
5
On August 27, 2012, we granted McCollister‟s request for a certificate of
appealability solely on the issue of whether his waiver of right to trial counsel was made
knowingly and intelligently. We also appointed counsel to represent McCollister on
appeal.2
II.
The District Court had jurisdiction under 28 U.S.C. § 2241(a) and § 2254(a). We
have appellate jurisdiction under 28 U.S.C. § 1291 and § 2253(c)(1).
Where, as here, a state court has decided the merits of a petitioner‟s habeas claim,
relief in federal court may be granted only if the state court‟s adjudication of the claim:
(1) resulted in a decision that was contrary to or involved in an
unreasonable application of, clearly established Federal Law, as determined
by the Supreme Court of the United States;
(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.
28 U.S.C. § 2254(d)(1), (2). In this case, the facts are not in dispute, and McCollister
does not contend that the state court‟s determination of his Sixth Amendment right to
counsel claim was contrary to a precedent of the Supreme Court of the United States.
Instead, he limits his argument to the assertion that the state court rejection of his Sixth
Amendment claim represented an unreasonable application of clearly established federal
law.
The starting point of analysis in a case such as this “is to identify the „clearly
established Federal law, as determined by the Supreme Court of the United States‟ that
2
We acknowledge with appreciation the fine efforts of court-appointed counsel in
presenting arguments on behalf of McCollister.
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governs the habeas petitioner‟s claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449
(2013). The Supreme Court has clearly established that there is a right to waive counsel
and proceed pro se, provided that the waiver is knowing and voluntary. See Faretta v.
California, 422 U.S. 806, 814 (1975). See also Iowa v. Tovar, 541 U.S. 77, 87-88
(2004). The Supreme Court, however, “ha[s] not . . . prescribed any formula or script to
be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541
U.S. at 88. Specifically, there is no Supreme Court precedent holding that the failure to
apprise a defendant of a potential statutory mandatory minimum prison term renders a
waiver of counsel unknowing or involuntary. Nor is there any High Court ruling that
erroneous advice pertaining to the sentencing range faced by the defendant renders that
defendant‟s waiver of counsel invalid.
What the Supreme Court has required is that the defendant “be made aware of the
dangers and disadvantages of self-representation, so that the record will establish that „he
knows what he is doing and his choice is made with eyes open.‟” Faretta, 422 U.S. at
835. The comprehensive colloquy undertaken by the Trial Judge in this case leaves no
doubt that McCollister made his decision to waive representation by counsel with his
eyes wide open. McCollister knew that he faced an aggregate prison range of 40 to 80
years in prison, which, effectively, is the prison term he received. While not informed
that the maximum prison term could be life, this omission was inconsequential in view of
McCollister‟s age at the time of the plea colloquy (39 years-old.) Moreover, the
statutory mandatory minimum came into play only upon the Commonwealth‟s filing of
its notice of intention to proceed under the Pennsylvania three strikes law, and
7
Pennsylvania law only requires that such notice be given after a conviction. See 42 Pa.
Cons. Stat. Ann. § 9714(d). Thus, at the time of the colloquy, the sentencing range
information communicated to McCollister was accurate. Under these circumstance, the
Pennsylvania Superior Court‟s determination that McCollister validly waived his right to
counsel is not an unreasonable application of precedents of the Supreme Court of the
United States.
McCollister‟s reliance upon our decisions in United States v. Booker, 684 F.3d
421 (3d Cir. 2012), United States v. Jones, 452 F.3d 223 (3d Cir. 2006), and United
States v. Moskovits, 86 F.3d 1303 (3d Cir. 1996), is unavailing. Although those
decisions, which involved direct appellate court review of the validity of a waiver of
counsel, bear some factual similarities to McCollister‟s situation, they cannot “be used to
refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal
rule that [the Supreme] Court has not announced.” Marshall, 133 S. Ct. at 1450. It is
only the precedents of our High Court that set the boundaries of our review of the validity
of a state court conviction. See id. at 1450-51 (“Although an appellate panel may, in
accordance with its usual law-of-the-circuit procedures, look to circuit precedent to
ascertain whether it has already held that the particular point in issue is clearly
established by Supreme Court precedent, it may not canvass circuit decisions to
determine whether a particular rule of law is so widely accepted among the Federal
Circuits that it would, if presented to this Court, be accepted as correct.”) (Citations
omitted.) In light of the fact that the Supreme Court has not held that the omission of
information pertaining to a statutory mandatory minimum or an inconsequential error
8
with respect to the maximum prison term voids an otherwise effective waiver of counsel,
it cannot be said that the Pennsylvania Superior Court‟s ruling in this case is “an
unreasonable application of the „general standard[s]‟ established by the Court‟s
assistance- of-counsel cases.” Id.at 1450
IV.
For the foregoing reasons, we will affirm the District Court‟s judgment.
9