Lewis v. Johnson

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

3-10-2004

Lewis v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 01-1036P

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 PRECEDENTIAL Before: SLOVITER, AMBRO,
Circuit Judges, and TUCKER,*
District Judge
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT (Opinion Filed March 10, 2004 )

No. 01-1036 Michael D. Bartko, Esquire (Argued)
Suite 401
210 Grant Street
CHARLES THOM AS LEWIS, Pittsburgh, PA 15219

Appellant Attorney for Appellant

v. Ronald M. Wabby, Jr., Esquire (Argued)
Office of the District Attorney
PHILIP L. JOHNSON, Superintendent, 401 Allegheny County Courthouse
SCI-Pittsburgh; MIKE FISHER, Pittsburgh, PA 15219
Attorney General of Pennsylvania,
Attorney for Appellees
Appellees

OPINION OF THE COURT
Appeal from the Order denying
Petition for Writ of Habeas Corpus
and denying a Certificate of TUCKER, District Judge.
Appealability entered on December 8,
2000, in the United States District Court This matter comes to us on appeal
for the Western District of Pennsylvania from the district court’s denial of
Appellant Charles Thomas Lewis’s
(D.C. Civil Action No. 00-cv-1500) application for writ of habeas corpus,
seeking relief from his state conviction on
District Judge: Hon. William L. Standish grounds his Sixth Amendment right to
effective assistance of counsel was
violated. Specifically, Lewis contends that
Argued June 26, 2003 his trial counsel’s failure to file a notice of
appeal constituted constitutionally-

Eastern District of Pennsylvania, sitting by
* Hon. Petrese B. Tucker, United designation.
States District Court Judge for the
deficient performance within the meaning On March 12, 1987, nine days
of Strickland v. Washington, 466 U.S. 668 following his sentencing, Lewis filed a
(1984), and Roe v. Flores-Ortega, 528 timely motion pro se in the trial court
U.S. 470 (2000), and deprived him of his challenging the validity of his guilty plea
first appeal of right. In accordance with on several grounds, including ineffective
the foregoing, we reverse the district assistance of counsel. On April 10, 1987,
court’s order denying habeas relief and trial counsel filed a “Motion for Leave to
remand with instructions that a writ be Withdraw Guilty Plea,” which the trial
issued conditioned on the Commonwealth court summarily denied without opinion.
reinstating nunc pro tunc Lewis’s right of The trial court did not rule on Lewis’s pro
first appeal. se motion and the parties indicate that it
remains pending. No appeal was taken
I. BACKGROUND from either the judgment of sentence or the
trial court’s ruling denying the counseled
A. Trial Proceedings motion to withdraw the guilty plea.

Lewis is presently an inmate at the B. First Petition for Post-Conviction
State Correctional Institution at Pittsburgh Relief Under State Law
where he is serving a 30 to 60 year
sentence imposed by the Pennsylvania On February 1, 1988, Lewis filed
Court of Common Pleas of Allegheny his first post-conviction petition pro se
County (“trial court”) following his pursuant to the Pennsylvania Post
conviction on six counts of robbery and Conviction Hearing Act (“PCHA”), 42
nine other criminal offenses. Lewis Pa.C.S. § 9541 et seq,1 in the Common
pleaded guilty to the charges on January Pleas Court of Allegheny County. Counsel
27, 1987, and was sentenced on March 3, was appointed and an amended petition
1987. Lewis was sentenced to six was subsequently filed. Among the issues
consecutive 5 to 10 year terms for each raised in the PCHA petition was
robbery count, to be followed by eleven ineffective assistance of counsel based on
years of probation for the bad checks and
firearms charges. Lewis was represented
by John Elash, a court-appointed attorney, 1
The PCHA was repealed on April
during the guilty plea and sentencing
13, 1988, and superseded by the Post-
proceedings. Following the announcement
Conviction Relief Act (“PCRA”), 42
of the sentence, the trial judge informed
Pa.C.S. §§ 9541-9546. It appears from the
Lewis of his right to file post-trial motions
record that Lewis may have filed his
challenging the validity of his guilty plea
PCHA petition on November 25, 1987, see
or requesting modification of the sentence
Appendix, Vol. 1 at 105, 231, but we use
within 10 days of the proceeding.
the date cited in the magistrate judge’s
report and recommendation.

2
trial counsel’s: (1) failure to move to merit. The only evidence
withdraw Lewis’s guilty plea when the indicating the desire to
trial court did not accept the alleged plea appeal was provided in the
agreement and sentence Lewis to 5 to 10 appellant’s testimony at the
years on each robbery count running hearing on the PCHA
concurrently rather than consecutively; (2) petition. However, in
failure to appeal the trial court’s denial of reviewing the transcript of
Lewis’s motion for leave to withdraw the the hearing, we find nothing
guilty plea “despite having a meritorious in the record to support the
argument that the guilty plea was appellant’s testimony. The
unlawfully induced”; and (3) failure to file PCHA court resolved the
a direct appeal from the denial of the post- issue of credibility in favor
trial motion and judgment of sentence.2 of trial counsel. That
Appendix, Vol. 1 at 117. Lewis’s PCHA determination will not be
petition was denied following an disturbed on appeal. We
evidentiary hearing. Lewis appealed the therefore adhere to the
decision to the Superior Court, which holding in Dockins,...
addressed the sole of issue of whether providing that trial counsel
Lewis was denied his right of direct cannot be found ineffective
appeal. The Superior Court concluded that for failing to file a direct
its prior decision in Commonwealth v. appeal when not requested
Dockins, 471 A.2d 851 (Pa. Super. 1984), to do so.
which holds that “trial counsel cannot be
found ineffective for failing to file a direct Appendix, Vol. II at 385. Lewis’s petition
appeal when not requested to do so,” was for allocator to the Pennsylvania Supreme
controlling. The court affirmed the denial Court appealing the Superior Court’s
of Lewis’s petition for post-conviction ruling was denied.
relief under the PCHA based on its
conclusion that: C. Second Petition for State Post-
Conviction Relief
[t]rial counsel admitted
discussing the possible Lewis, represented by counsel, filed
grounds for appeal and a second petition for post-conviction relief
mentions that none of the on February 14, 1995, pursuant to
grounds were of appellate Pennsylvania’s Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546.
Lewis again contested the validity of his
2 guilty plea and alleged trial counsel was
Lewis raised these same claims in
ineffective on a number of grounds, to
the PCHA petition that he filed pro se.
include for failing to take direct appeal
Appendix, Vol. 1 at 110.

3
from the judgment of sentence which, ineffective for causing Lewis to enter a
Lewis contended, was contrary to the guilty plea that was not voluntary and
terms of his guilty plea. Another intelligent. Concluding that the state
evidentiary hearing was held, and the courts’ resolution of this question was not
PCRA petition denied thereafter. Lewis contrary to clearly established law, the
appealed the decision to the Superior magistrate judge recom mended that
Court. The court disposed of the question Lewis’s petition for habeas relief be
of Lewis’s right to a direct appeal in a denied.
footnote, holding that “his claim was
meritless” since the court had previously Lewis timely filed objections to the
decided the claim against him when it magistrate’s report and recommendation,
adjudicated his first post-conviction arguing that the magistrate judge failed to
petition under the PCHA, and held that (1) review his claim of ineffectiveness
Dockins precluded relief. Appendix, Vol. arising from trial counsel’s failure to take
II at 389 n.2 (citing Commonwealth v. a direct appeal, and (2) made no
Lewis, No. 978 Pittsburgh 1989 (Pa. determination as to whether the record
Super. Ct. filed July 18, 1990)). Lewis’s supported the state courts’ finding that he
petition for leave to appeal this decision to had not asked trial counsel to take an
the Pennsylvania Supreme Court was appeal. Lewis further argued that “counsel
denied. denied assistance by unconstitutionally
abandoning his assignment to my case
D. Federal Habeas Petition during critical judicial proceedings without
filing an appeal.” Appendix, Vol. III at
Following the exhaustion of his 567. In support of his objections, Lewis
state remedies, Lewis filed a timely pro se cited to the Supreme Court’s decisions in
petition for writ of habeas corpus in the Flores-Ortega and Douglas v. California,
United States District Court for the 372 U.S. 353 (1963). By order, the
Western District of Pennsylvania on district court adopted the magistrate
August 4, 2000. In his petition, Lewis judge’s report and recommendation and
alleged, inter alia, that the decisions of the denied Lewis’s petition for federal habeas
Commonwealth courts ran counter to relief.
clearly e s t a b li s h e d fe d e ra l l aw .
Specifically, Lewis contended that his trial Lewis filed a timely notice of
counsel was ineffective for failing to file a appeal in this court. We granted Lewis’s
direct appeal from the trial court’s denial application for a certificate of appealability
of his motion for leave to withdraw his to consider whether trial counsel was
guilty plea and the judgment of sentence. ineffective for failing file a direct appeal.
The district court referred the case to the
magistrate judge who addressed only the
question of whether trial counsel was

4
 II. DISCUSSION Supreme Court of the
United States; or
A. Standard of Review
(2) resulted in a
Our jurisdiction to review a district decision that was based on
court’s order denying a state inmate’s an unreasonable
petition for habeas relief is derived from determination of the facts in
28 U.S.C. §§ 1291, 2253. Where, as in light of the evidence
this case, “the District Court relied presented in the State court
exclusively on the state court record and proceeding.
did not hold an evidentiary hearing, our
review of its decision is plenary.” Moore 28 U.S.C. § 2254(d)(1). The AEDPA
v. Morton, 255 F.3d 95, 103 (3d Cir. 2001) “modifie[d] the roles of federal habeas
(citation omitted). Lewis, a state inmate courts in reviewing petitions filed by state
seeking relief from his state court prisoners.” Williams v. Taylor, 529 U.S.
conviction, filed his federal habeas petition 362, 403 (2000). Under this new statutory
in 2000; thus our adjudication of this case rubric, “[w]e are to review the state court’s
is governed by the provisions of the determinations on the merits only to
Antiterrorism and Effective Death Penalty ascertain whether the court reached a
Act of 1996 (“AEDPA”), which, in decision that was ‘contrary to’ or an
relevant part, provides: ‘unreasonable application’ of clearly
established Supreme Court law, or whether
An application for a it made an ‘unreasonable determination’ of
writ of habeas corpus on the facts.” Marshall v. Hendricks, 307
behalf of a person in F.3d 36, 51 (3d Cir. 2002). “[T]he
custody pursuant to the determination whether or not a rule is
judgment of a State court clearly established at the time a state court
shall not be granted with renders its final judgment of conviction is
respect to any claim that a question as to which the ‘federal courts
was adjudicated on the must make an independent evaluation.’”
merits in State court Williams, 529 U.S. at 382 (quoting Wright
proceedings unless the v. West, 505 U.S. 277, 305 (1992)
adjudication of the claim– (O’Connor, J., concurring in judgment)).
The AEDPA does, however, confine the
(1) resulted in a authorities on which federal courts may
decision that was contrary rely in making this determination to the
t o , o r i n v o lv e d a n decisional law of the Supreme Court, that
unreasonable application of, is, the “Federal law, as determined by the
clearly established Federal Supreme Court of the United States.” Id.
law, as determined by the at 381-82 (quotation omitted).

5
 The question in this case is whether the AEDPA “bears only a slight
Lewis’s trial counsel was ineffective for connection” to the nonretroactivity
not filing a notice of appeal. Lewis relies principle articulated in Teague v. Lane,
on the Supreme Court’s decision in 489 U.S. 288 (1989), and its progeny
Flores-Ortega, which held that criminal except to the extent that “whatever would
defense attorneys have a constitutional qualify as an old rule under our Teague
duty to consult and advise defendants of line of cases will constitute ‘clearly
their appellate rights. Flores-Ortega was established Federal law, as determined by
decided after Lewis’s conviction was the Supreme Court of the United States’
finally adjudicated, thus we certified two under § 2254(d)(1).” Williams, 529 U.S.
questions in our order granting Lewis’s at 412 (citation omitted). “The
appeal. The first asks whether, in light of nonretroactivity principle prevents a
Strickland and Flores-Ortega, the federal court from granting habeas corpus
Commonwealth courts’ “application of the relief to a state prisoner based on a [new]
rule of Commonwealth v. Dockins, rule announced after his conviction and
[supra], to appellant’s claim resulted in a sentence became final.” Caspari v.
decision that was ‘contrary to, or involved Bohlen, 510 U.S. 383, 389 (1994).
an unreasonable application of clearly
established Federal law, as determined by As we have explained, “Teague
the Supreme Court of the United States[.]’ teaches that the federal courts in habeas
28 U.S.C. § 2254(d)(1).” As an corpus proceedings should be reluctant to
antecedent to this question, we instructed apply new rules of federal jurisprudence in
that the parties “first address the question state court cases decided before such new
to what extent the holdings of Flores- rules were handed down. Principles of
Ortega constitute ‘clearly established comity and finality counsel that we
federal law.’ See Williams v. Taylor, maintain a circumscribed scope of habeas
[supra].” We begin our inquiry addressing review.” Banks v. Horn, 271 F.3d 527,
this latter question. 543 (3d Cir. 2001), rev’d on other grounds
by Horn v. Banks, 536 U.S. 266 (2002),
B. Teague Analysis and reaff’d by Banks v. Horn, 316 F.3d
228 (3d Cir. 2003) [hereinafter “Banks
1. III”] (citing Teague, 489 U.S. at 308). 3
The Supreme Court has acknowledged that
“The threshold question under the
AEDPA is whether [the petitioner] seeks
to apply a rule of law that was clearly 3
Banks III is currently pending
established at the time his state-court
appeal before the Supreme Court. See
conviction became final.” Williams, 529
Beard v. Banks, 124 S. Ct. 45 (2003)
U.S. at 390. In Williams, the Supreme
(Mem) (granting petition for writ of
Court held that this limiting provision of
certiorari).

6
discerning whether a rule is “old” or defendant’s conviction became final.
“new” for retroactivity purposes is not Second, we must survey the legal
without diff icult y, “[b]u t Teague landscape to determine whether or not the
established some guidance for making this case in question announced a new rule of
determination, explaining that a federal constitutional law. Finally, if we determine
habeas court operates within the bounds of that the case did announce a new rule, we
comity and finality if it applies a rule must consider whether it fits into one of
‘dictated by precedent existing at the time the two exceptions to nonretroactivity.”
the defendant’s conviction became final.’” Banks III, 316 F.3d at 233 (citing Caspari,
Williams, 529 U.S. at 381 (quoting 510 U.S. at 390). There is no dispute in
Teague, 489 U.S. at 301). Conversely, a this case that the final adjudication of
“new” rule is one which “breaks new Lewis’s conviction pre-dated Flores-
ground or imposes a new obligation on the Ortega and the two exceptions to the
States or the Federal Government.” Id. Teague bar do not apply. Thus we focus
The question of whether a rule is “old” or our inquiry on step two, reviewing the
“new” for Teague purposes remains one legal landscape to determine whether the
“which the ‘federal courts must make an duty to consult announced in Flores-
independent evaluation.’” Id. at 382 Ortega was dictated by precedent clearly
(quoting Wright, 505 U.S. at 305 established at the time Lewis’s conviction
(O’Connor, J., concurring in judgment)). became final. 5 Williams, 529 U.S. at 412.
In accord with the AEDPA, federal courts
may rely only on the precedents of the
S up re m e Co urt in making this
determination. Id. at 412.

Teague outlines a three-step
analysis for determining whether the
nonretroactivity principle prevents a
habeas petitioner’s reliance on a particular context did not arise. We directed the
rule.4 “First, we must determine when the parties sua sponte to brief the question.
5
Wh ether Flo res-Ortega
constitutes an “old” rule for retroactivity
4
We note that, while the question purposes is a question of first impression
of whether a particular rule is Teague- in this Circuit. Our research indicates that
barred is a threshold question, a “federal only one Federal Court of Appeals has
court may, but need not, decline to apply considered this question on the merits. In
Teague if the State does not argue it.” Daniel v. Cockrell, 283 F.3d 697, 708 (5th
Horn, 536 U.S. at 271. The district court Cir. 2002), the Fifth Circuit held, without
did not consider Lewis’s Flores-Ortega discussion, that Flores-Ortega constitutes
challenge, and the Teague issue in this a “new” rule for Teague purposes.

7
 2. appeal), or (2) that this particular
defendant reasonably demonstrated to
In Flores-Ortega,6 the Supreme counsel that he was interested in
Court addressed the question of whether appealing.” 528 U.S. at 480. The Court
counsel may be found deficient for failing further explained that it “employ[ed] the
to file a notice of appeal absent specific term ‘consult’ to convey a specific
instruction from the defendant. Because meaning–advising the defendant about the
the question concerned whether counsel’s advantages and disadvantages of taking an
representation wa s con stitutiona lly appeal, and making a reasonable effort to
defective, the Court held that the familiar discover the defendant’s wishes.” Id. at
two-part test announced in Strickland 478. Additionally, the Supreme Court
governed its inquiry. 7 528 U.S. at 476-77. instructed that courts undertaking this
Applying the Strickland standard to the inquiry, as with all ineffective assistance
particular facts before it, the Court held claims, “take into account all the
that “counsel had a constitutionally information counsel knew or should have
imposed duty to consult with the defendant known.” Id. at 480 (citing Strickland, 466
about an appeal when there is reason to U.S. at 690). With respect to Strickland’s
think either (1) that a rational defendant prejudice prong, the Court held that the
would want to appeal (for example, harmless error inquiry applied and that
because there are nonfrivolous grounds for relief could not be granted unless the
defendant could “demonstrate that there is
a reasonable probability that, but for
6
We begin our Teague analysis counsel’s deficient failure to consult with
with Flores-Ortega, as “[t]he crux of the him about an appeal, he would have timely
analysis when Teague is invoked... is appealed.” Id. at 484.
identification of the rule on which the
claim for habeas relief depends.” Wright, The parties do not dispute that
505 U.S. at 311 (Souter, J., concurring in Strickland’s reasonableness test was
judgment). See also Banks III, 316 F.3d at clearly established law in 1987 when
232. Lewis’s conviction became final, and that
7 it governs the adjudication of this case.
Under Strickland, “[a] defendant
See Williams, 529 U.S. at 391 (“It is past
claiming ineffective assistance of counsel
question that the rule set forth in
in violation of the Sixth Amendment...
Strickland qualifies as ‘clearly established
must sh ow f i r s t t h a t coun sel’ s
Federal law[.]”). Rather, the point of
r e p r e s e n t a t i o n w a s o b j e c t i v e ly
contention rests with the Court’s second
unreasonable, and second, that counsel’s
holding in Flores-Ortega respecting the
deficient performance was prejudicial.”
duty to consult. Lewis contends the
United States v. Solis, 252 F.3d 289, 293
second holding of Flores-Ortega was
(3d Cir. 2001) (citing Flores-Ortega, 528
dictated by precedent, and urged at oral
U.S. at 476-77).

8
argument that the Supreme Court merely the particular case, viewed as of the time
“clarified” the law as it applied to the facts of counsel’s conduct.” 466 U.S. at 690
before it. Conversely, the Commonwealth (emphasis added). This standard
argues that this holding imposed a new “provides sufficient guidance for resolving
burden on the States by “set[ting] forth a virtually all ineffective-assistance-of-
new standard for the appellate process” counsel claims.” Williams, 529 U.S. at
and is barred by Teague from application 391.
in this case.
For these re a sons , the
We note as an initial matter that the Common wealth’s emphasis on the
Commonwealth has provided little analysis particular duty identified by the Flores-
and cites no authority for this position. Ortega Court – counsel’s constitutional
When pressed at oral argument, counsel obligation to consult with her client
for the Commonwealth could only point to regarding appeal options – as a basis for
language in the Court’s opinio n classifying this rule as “new” for Teague
announcing the decision, “[t]oday... we purposes is misplaced. “That the
hold” and “the standard we announce Strickland test ‘of necessity requires a
today,” 528 U.S. at 480, language which case-by-case e xa mination of th e
counsel took “to mean a new rule, if you evidence,’... obviates neither the clarity of
announce the rule today.” See also the rule nor the extent to which the rule
Appellee Br. at 22. This language is must be seen as ‘established’ by this
hardly dispositive or even persuasive. The [Supreme] Court.” Id. (quoting Wright,
point of the Teague analysis is to 505 U.S. at 308 (Kennedy, J., concurring
determine whether a rule which post-dates in judgment)). Justice Kennedy’s
the State’s final adjudication of a habeas concurrence in Wright v. West is
petitioner’s conviction may, without instructive on this point:
offending principles of comity and finality,
be retroactively applied. The language on If the rule in question is one
which the Commonwealth relies merely which of necessity requires
states the obvious (that the case announced a case-by-case examination
a rule on a particular day) and does not of the evidence, then we can
inform the second prong of our Teague tolerate a number of specific
inquiry. Further, we note that case law applications without saying
need not exist on all fours to allow for a that those applications
finding under Teague that the rule at issue themselves create a new
was dictated by Supreme Court precedent. rule.... Where the beginning
Strickland is a rule of general applicability point is a rule of this general
which asks whether counsel’s conduct was application, a rule designed
objectively reasonable and conformed to for the specific purpose of
professional norms based “on the facts of evaluating a myriad of

9
 factual contexts, it “important decision.” See, e.g., Flores-
will be the infrequent Ortega, 528 U.S. at 489 (Souter, J.,
case that yields a concurring in part and dissenting in part);
result so novel that it Evitts v. Lucey, 469 U.S. 387 (1985);
forges a new rule, Wainwright v. Sykes, 433 U.S. 72, 92
one not dictated by (1977) (Burger, C.J., concurring) (noting
precedent. the question of whether to appeal is a
“critical procedural decision”); Rodriguez
505 U.S. at 308-09 (emphasis added). Our v. United States, 395 U.S. 327 (1969). It
review of the legal landscape, well-settled follows then that since the decision to
at the time Lewis’s conviction became appeal “cannot be made intelligently
final, compels us to conclude that Flores- without appreciating the merits of possible
Ortega did not “yield[] a result so novel grounds for seeking review, and the
that it forge[d] a new rule,” and that potential risks to the appealing defendant,
Flores-Ortega’s application of the a lay defendant needs help before
Strickland standard was dictated by deciding.” 8 Flores-Ortega, 528 U.S. at
precedent and merely clarified the law as it 489 (Souter, J.) (emphasis added)
applied to the particular facts of that case. (citations omitted).

Indeed we need look no further than This proposition – that a defendant
Strickland in making this determination. requires the advice of counsel to make an
I n a n n o u n c in g t h e o b jectiv e informed decision respecting his right of
reasonableness standard, the Strickland appeal – was hardly novel in 1987. It was
Court identified “certain basic duties” that clearly established that the Sixth
its p r e c e dents and then-ex isting Amendment’s guarantee of effective
professional norms established criminal
defense attorneys must carry out to
perform competently within the meaning 8
We note that the Flores-Ortega
of Sixth Amendment. The Court included
majority and the Justices dissenting in part
among these duties “counsel’s [obligation
and joining in Justice Souter’s opinion
to] function as assistant to the defendant...
disagreed only on the question of whether
[and] the overarching duty to advocate the
counsel should have a per se duty to
defendant’s cause and the more particular
consult the defendant in all cases. See 528
duties to consult with the defendant on
U.S. at 481. The majority rejected such a
important decisions and to keep the
bright-line rule though recognizing it as
defendant inform ed of important
the “better practice,” id. at 479, whereas
developments in the course of the
Justice Souter would have held that
prosecution.” Strickland, 466 U.S. at 688
counsel is “almost always” obligated to
(emphasis added). The decision whether
consult her client about an appeal. Id. at
to appeal is unquestionably one such
488.

10
assistance of counsel extended to the first view comports with the prevailing
appeal as of right, and the Strickland professional norms existing in 1987, to the
s t a n d a r d a p p l i ed t o ap p e l l at e extent these norms are denoted in the
representation. See generally Jones v. published standards of the American Bar
Barnes, 463 U.S. 745 (1983); Evitts, 469 Association (“ABA”). Flores-Ortega, 528
U.S. 387. The Supreme Court cases U.S. at 490, quoting ABA Standards for
respecting attorney competence on appeal Criminal Justice 21-2.2(b) (2d ed. 1980)
recognized that lay defendants “may not (“Defense counsel should advise a
even be aware of errors which occurred at defendant on the meaning of the court’s
trial,” Rodriguez, 395 U.S. at 330, and judgment, of defendant’s right to appeal,
required “the superior ability of trained and of the probable outcome of
counsel in the ‘examination into the appealing.”). Promulgated in 1980, the
record, research of the law, and ABA’s standards pre-date Strickland. The
marshalling of arguments’” on appeal just Supreme Court has cited with approval the
as at trial. Jones, 463 U.S. at 751 (quoting use of “[p]revailing norms of practice as
Douglas v. California, 372 U.S. at 358). reflected in the American Bar Association
Thus, though “the accused has the ultimate standards and the like... [as] guides to
authority to make certain fundamental determining what is reasonable, but only
decisions regarding the case,... [including] guides.” Strickland, 466 U.S. at 688;
whether to plead guilty, waive a jury, Flores-Ortega, 528 U.S. at 479. In light of
testify in his or her own behalf, or take an the foregoing well-settled Supreme Court
appeal,” id. at 751 (citing Sykes, 433 U.S. precedents respecting the constitutional
at 93, n.1 (Burger, C. J., concurring)); standard for appellate representation, we
ABA Standards for Criminal Justice 4-5.2, believe reasonable jurists applying the
21-2.2 (2d ed. 1980)), counsel was Strickland standard to Lewis’s claim
constitutionally obligated to advise the would have concluded that the Court’s
defendant respecting those decisions to “previous precedents... [did] not simply
allow for intelligent exercise of the ‘inform, or even control or govern’ the
particular right. See, e.g., Rock v. analysis, but instead... compel[led] the
Arkansas, 483 U.S. 44 (1987) (right to rule” in Flores-Ortega. Banks III, 316
testify on one’s behalf); Hill v. Lockhart, F.3d at 234 (quoting Saffle v. Parks, 489
474 U.S. 52 (1985) (guilty plea; waiver of U.S. 484, 491 (1990)) (add’l citation
right to jury trial). Flores-Ortega broke no omitted).
new ground in holding the duty to consult
also extended to counsel’s obligation to Accordingly, we hold that Flores-
advise the defendant of his appellate Ortega’s application of the Strickland
rights. standard did not forge new ground or
otherwise impose a new obligation upon
As Justice Souter’s concurring the States in announcing the duty to
opinion in Flores-Ortega evidences, this consult, and this holding constitutes an

11
“old” rule which may be retroactively and “unreasonable application” have
a p p l i ed t o L e w is ’s cl ai m of independent meanings, each of which must
ineffectiveness.9 be given effe ct to accord with
congressional intent. 529 U.S. at 407.
C. M erits Analysis Justice O’Connor read “contrary” to
employ its common meaning – that which
1. is “diametrically different,’ ‘opposite in
character or nature,’ or ‘mutually
Having concluded that the duty to opposed,’” id. at 405 – and concluded that
consult as announced in Flores-Ortega a state-court decision is “contrary to”
constitutes an “old” rule for retroactivity clearly established federal law if: (1) “the
purposes and clearly established law, we state court applies a rule that contradicts
now move to the merits of Lewis’s claim the governing law set forth in [the
and consider the second question certified Supreme Court’s] cases,” id., or (2) “the
on this appeal: whether, in light of state court confronts a set of facts that are
Strickland and Flores-Ortega, the state materially indistinguishable from a
courts’ application of the rule of decision of [the Supreme] Court and
Commonwealth v. Dockins resulted in a nevertheless arrives at a result different
decision that was “contrary to” or involved from [the Court’s] precedent.” Id. at 406.
an “unreasonable application” of clearly
established federal law. In Williams v. Justice O’Connor found the
Taylor, Justice O’Connor, writing for the “unreasonable application” clause of the
majority, held that the terms “contrary to” AEDPA “no doubt difficult to define,” id.
at 410, but held generally that this
provision is contravened if “a state-court
9 decision correctly identifies the governing
The parties do not contest that the
legal rule but applies it unreasonably to the
third holding of Flores-Ortega, the
facts of a particular prisoner’s case.” 10 Id.
prejudice standard, is an “old” rule and
clearly established law. To show prejudice
under this standard, “a defendant must
10
demonstrate that there is a reasonable Justice O’Connor posited that the
probability that, but for counsel’s deficient Fourth Circuit’s additional holding that
failure to consult with him about an this clause includes any state-court
appeal, he would have timely appealed.” decision which “unreasonably extends a
528 U.S. at 484. As the Supreme Court legal principle from our precedent to a new
observed, “this prejudice standard breaks context where it should not apply (or
no new ground, for it mirrors the prejudice unreasonably refuses to extend that
inquiry applied in Hill v. Lockhart, principle to a new context where it should
[supra], and Rodriguez v. United States, apply)’... may perhaps be correct, [but
[supra].” Id. at 485. observed] the classification does have

12
at 407-08. The unreasonableness of a state Dockins stands for the proposition that
court’s decision must be judged from an “[t]rial counsel can not be held ineffective
objective standard; “a federal habeas court for failing to file an appeal when his client
may not issue the writ simply because that has not asked him to do so.” Appendix,
court concludes in its independent Vol. II at 385 (Superior Court PCHA
judgment that the relevant state-court opinion citing Dockins) (add’l citation
decision applied clearly established federal omitted). The dispositive question under
law erroneously or incorrectly. Rather, Dockins is whether the defendant directed
t h a t a p p l i c a t i o n m u s t a l s o be his trial counsel to perfect an appeal; the
unreasonable.” Id. at 411; Mitchell v. inquiry begins and ends here. Pursuant to
Esparza, 124 S. Ct. 7, 11 (2003) Dockins, Lewis’s petitions for post-
(“unreaso nable application” is an conviction relief were denied based on the
“objectively unreasonable” application of PCHA court’s conclusion, affirmed by the
clearly established law as opposed to Superior Court, that “the Defendant does
“incorrect”). Finally, we must accept the have an absolute right to direct appeal, but
factual findings of the state court as they [defendants] must make efforts to
presumptively correct, a presumption the contact an attorney in that respect and I
petitioner may only rebut with clear and would submit based on Mr. Elash’s [trial
convincing evidence. 28 U.S.C. § counsel] testimony and based upon the
2254(e)(1). lack of any other substantive evidence that
he was not contacted within the 30 day
2. appeal period and, therefore, that there is a
waiver of the right to direct appeal.”
The Pennsylvania courts decided Appendix, Vol. 1 at 172-73 (emphasis
Lewis’s post-conviction petitions on added). Dockins, then, is a per se rule of
independent state law grounds concluding strict application which holds as a matter
that his ineffectiveness claim was of law that counsel acts reasonably in all
governed by Commonwealth v. Dockins.11 cases where a notice of appeal is not filed,
and the defendant is silent. The Supreme

some problems of precision.” Williams,
529 U.S. at 409. Our decision today does
not require that we explore this question. decision is not ‘contrary to... clearly
established Federal law’ simply because
11
We note that the mere fact that the court did not cite our opinions.... [A]
the Commonwealth courts failed to state court need not even be aware of our
mention Strickland is not dispositive of the precedents, ‘so long as neither the
question of whether the courts’ decisions reasoning nor the result of the state-court
adjudicating Lewis’s claim were contrary decision contradicts them.’” Esparza, 124
to clearly established federal law. As the S. Ct. at 10 (quoting Early v. Packer, 537
Supreme Court has held, “[a] state court's U.S. 3, 8 (2002)).

13
Court invalidated a similar rule in Flores- circumstances. Whether a rule inures to
Ortega. The challenged rule in that case the benefit or disadvantage of the
obligated counsel to file an appeal in all defendant, Strickland does not permit the
cases where the defendant had not imposition of such bright-line rules. As
expressly instructed that an appeal not be the Williams Court stressed, “we have
taken. 528 U.S. at 478. The Court quickly c o n sistently d e c l in e d t o i m p o se
concluded that the rule, known as the mechanical rules on counsel – even when
“Stearns rule,” 1 2 was con trary to those rules might lead to better
Strickland, holding: representation.... ‘[T]he purpose of the
effective assistance guarantee of the Sixth
Such a rule effectively Amendment is not to improve the quality
imposes an obligation on of legal representation... [but rather]
counsel in all cases either simply to ensure that criminal defendants
(1) to file a notice of appeal, receive a fair trial.’” 528 U.S. at 481
or (2) to discuss the (quoting Strickland, 466 U.S. at 689).
possibility of an appeal with Thus, the Pennsylvania courts’ application
the defendant, ascertain his of Dockins to Lewis’s ineffectiveness
wishes, and act accordingly. claims was “contrary to” clearly
We reject this per se rule as established law.
inconsistent with
Strickland’s holding that The Commonwealth does not
“the performance inquiry seriously contest this conclusion. Rather
must be reasonable the Commonwealth contends on brief that
considering all “the state courts found that counsel did
circumstances....” [T]hat ‘consult’ with appellant... [regarding] his
alone mandates vacatur and appellate rights.” Appellee Br. at 26.
remand. However, the Commonwealth backed
away from this assertion at oral argument,
Id. (quoting Strickland, 466 U.S. at 688)). conceding that none of the state courts
The Dockins rule operates in much the which reviewed Lewis’s claims during the
same manner: whereas the Stearns rule two rounds of post-conviction review
automatically deemed counsel ineffective made a finding as to whether Lewis’s
for failing to take an appeal where the court-appointed attorney consulted him
defendant was silent, Dockins holds that regarding his appellate rights following the
counsel always acts reasonably and may entry of the guilty plea, his sentencing or
not be found ineffective in such the trial judge’s denial of his post-trial

12
See United States v. Stearns, 68
F.3d 328 (9th Cir. 1995).

14
motion.13 Where the state court has not Flores-Ortega obligates counsel to
made a material finding, the usual course advise “the defendant about an appeal
is to remand to the district court to hold an when there is reason to think either (1) that
evidentiary hearing on the question. See a rational defendant would want to appeal
Solis, 252 F.3d at 294-95 (remanding (for example, because there are
under 28 U.S.C. § 2255 for evidentiary nonfrivolous grounds for appeal), or (2)
hearing). However, in this case such a that this particular defendant reasonably
hearing would likely be unproductive as demonstrated to counsel that he was
the relevant events occurred over 16 years interested in appealing.” 528 U.S. at 480.
ago. See Riley v. Taylor, 277 F.3d 261, Lewis pleaded guilty and does not seek to
294 (3d Cir. 2001) (en banc). Further, we appeal from a jury trial. The Supreme
believe the issue of trial counsel’s Court has held this is a “highly relevant
representation, following the sentencing factor” in deciding whether counsel was
proceeding and the trial judge’s ruling duty-bound to advise a defendant about his
denying the motion for leave to withdraw appellate rights, though the fact of a guilty
the guilty plea, was sufficiently litigated plea is not dispositive. Id. In guilty-plea
during the two evidentiary hearings held cases, our Strickland analysis must
on Lewis’s post-conviction applications in “consider such factors as whether the
state court to permit our adjudication of defendant received the sentence bargained
this question. for as part of the plea and whether the plea
expressly reserved or waived some or all
appeal rights.” Id. This case is unique in
13 that whether or not a plea agreement
The Superior Court’s PCHA
existed, Lewis is entitled to federal habeas
opinion mentions that “[t]rial counsel
relief stemming from trial counsel’s failure
admitted discussing possible grounds for
to advise him of his right to appeal from
appeal and mentions that none of the
the trial court’s denial of his motion to
grounds were of appellate merit.”
withdraw the guilty plea.
Appendix, Vol. II at 385. Trial counsel
testified at the PCHA hearing that “I know
Based on our review of the
he [Lewis] was upset [after he was
transcripts of the evidentiary hearings held
sentenced], but I do have a recollection of
in state court, it is clear that Elash did not
telling him that he probably didn’t have
meet with Lewis or otherwise attempt to
any appellate rights that were viable.” Id.
contact him after the senten cing
at 163. Counsel for the Commonwealth
proceeding or the post-trial motion was
conceded at oral argument that this
denied, although Lewis indicated an
testimony is ambiguous at best and could
interest in challenging his conviction. At
not support a finding that trial counsel
best, Elash could only recall speaking
consulted with Lewis within the meaning
briefly with Lewis in court following
of Flores-Ortega, and the Pennsylvania
sentencing, stating, “I know he was upset,
courts did not make such a finding.

15
but I do have a recollection of telling him withdraw the guilty plea that he filed 28
that he probably didn’t have any appellate days late, evidences an inattention to his
rights that were viable.” Appendix, Vol. 1 client’s interests, a neglect which caused
at 163. Regarding Lewis’s attempts to Lewis to forfeit his right of appeal. While
contact him after the sentencing and the trial counsel’s testimony alone supports
post-trial motion was denied, Elash this finding, our decision is further
testified, “I don’t have those records. You buttressed by the contemporaneous
know, if he did, I wouldn’t – he may evidence of Lewis’s attempt to timely
have... he might have had trouble getting assert his appellate rights. The trial judge
in touch with me.” Id. It is not clear from denied the post-trial motion filed by Elash
the hearing transcripts whether Elash was on April 16, 1987, and Lewis’s time to
aware that Lewis had filed a motion pro se appeal expired 30 days later on May 16,
to withdraw the guilty plea, but the motion 1987. On May 3, 1987, Lewis wrote to the
was entered on the trial docket and Elash Clerk of the Court stating, “[s]ince my
should have been aware of it. See id. at sentence of 30 to 60 years on March 3,
105. In any case, Elash testified that he 1987, I have received no correspondence
filed the motion to withdraw only after from John Elash[,] Esq. my attorney at
Lewis instructed him to do so, apparently hand, and I have no idea, what is
by correspondence. Id. at 162. At a happening, or what will happen. So im
minimum, this should have put Elash on [sic] asking for an extension of time, to
notice that Lewis may have been interested prepare my case in the proper order, and
in appealing the trial judge’s ruling and his
conviction. See Flores-Ortega, 528 U.S.
at 480 (citation omitted) (instructing
motion, Lewis alleged his plea was invalid
“courts must take into account all the
“due to inducement of promise from
information counsel knew or should have
Defendant[’]s attorney to combine all
known”).
charges as one (1) for one (1) lesser
sentence,” and ineffective assistance
Trial counsel’s testimony, coupled
resulting from trial counsel “not raising or
with the bare-boned post-trial motion14 to
arguing” to enforce the plea agreement and
advising him to plead guilty. Id. at 84.
Even if trial counsel believed any post-trial
14
The motion Elash filed on motion or appeal would be frivolous, his
Lewis’s behalf was three sentences in proper course would have been to follow
length and, as the basis for the motion, the procedures set forth in Anders v.
stated only that “Defendant avers that his California, 386 U.S. 738 (1967), or
plea was not knowingly or intelligently Commonwealth v. McClendon, 434 A.2d
entered.” Appendix, Vol. 1 at 87. No 1185 (Pa. 1981), and seek permission to
factual predicate was established nor legal withdraw from the case after giving notice
authority cited. Conversely, in his pro se to Lewis of his intention.

16
without any knowledge of the legal probability that, but for counsel’s deficient
system.” Appendix, Vol. 1 at 92. In June performance, he would have appealed.
of 1987, Lewis also wrote letters to the Flores-Ortega, 528 U.S. at 484. The
Pennsylvania State Bar Association and contemporaneous evidence of Lewis’s
the Disciplinary Counsel reporting Elash desire to challenge his conviction satisfies
for alleged misconduct in the handling of this requirement. In addition, Lewis has
his case and complaining that he had not also identified nonfrivolous points to raise
heard from Elash since the sentencing, on an appeal, among them ineffective
despite attempts to contact him. Id. at 94- assistance of counsel resulting from (1)
95. Finally, on July 13, 1987, Lewis wrote trial counsel’s failure to object and move
to the Clerk of the Court requesting to enforce the alleged plea agreement
information about “the present state, of when he was sentenced to consecutive
any appeal you may have submitted to the terms of 5 to 10 years of imprisonment on
Court in my behalf, and who is the lawyer the six robbery counts rather than to
of record.” Id. at 96. concurrent terms, and (2) trial counsel’s
failure to timely move to withdraw the
We believe this record compels a guilty plea when he did not get the benefit
finding that trial counsel’s conduct was of the alleged plea agreement. 15 See id. at
objectively unreasonable. We can think of 486 (“showing nonfrivolous grounds for
no strategic reason to explain why Elash appeal may give weight to the contention
failed to follow-up with Lewis either that the defendant would have appealed”).
following the sentencing or after the trial Lewis may raise these and all other claims
court denied the motion to withdraw, and on his direct appeal.
the Commonwealth offers none. The
ultimate decision to appeal rests with the III. CONCLUSION
defendant. Jones, 463 U.S. 745. Thus,
even if Elash concluded that any appeal The district court’s order denying
would be frivolous, he could not disregard the petition for a writ of habeas corpus is
the evidence of Lewis’s unequivocal desire reversed. This matter is remanded to the
to challenge his sentence and guilty plea,
and abandon his client at this critical stage
in the proceedings. See Evitts, 469 U.S. at 15
We note that although Lewis was
394 (counsel’s procedural error depriving
facing 10 to 20 years on each robbery
the defendant of his appeal rights “difficult
count, a decision to withdraw the guilty
to distinguish... from that of some who had
plea under the facts of this case would not
no counsel at all”), citing Anders, 386 U.S.
have been objectively irrational. Lewis
738 (add’l citation omitted).
was 36 years old and did not have a prior
record when he was convicted and
Finally, we hold that Lewis has
sentenced to 30 to 60 years of
demonstrated that there is a reasonable
incarceration.

17
district court with instructions that it issue
a writ of habeas corpus conditioned upon
the Commonwealth’s reinstatement of
Lewis’s right of first appeal within 45 days
from entry of the district court’s order
granting the petition.

18