359 F.3d 646 (3rd Cir. 2004), 01-1036, Lewis v. Johnson

Docket Nº:01-1036.
Citation:359 F.3d 646
Party Name:Charles Thomas LEWIS, Appellant v. Philip L. JOHNSON, Superintendent, SCI-Pittsburgh; Mike Fisher, Attorney General of Pennsylvania, Appellees.
Case Date:March 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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359 F.3d 646 (3rd Cir. 2004)

Charles Thomas LEWIS, Appellant


Philip L. JOHNSON, Superintendent, SCI-Pittsburgh; Mike Fisher, Attorney General of Pennsylvania, Appellees.

No. 01-1036.

United States Court of Appeals, Third Circuit

March 10, 2004

Argued June 26, 2003.

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Michael D. Bartko (Argued), Pittsburgh, PA, for Appellant.

Ronald M. Wabby, Jr. (Argued), Office of the District Attorney, Pittsburgh, PA, for Appellees.

Before SLOVITER, AMBRO, Circuit Judges, and TUCKER, [*] District Judge.


TUCKER, District Judge.

This matter comes to us on appeal from the district court's denial of Appellant Charles Thomas Lewis's application for writ of habeas corpus, seeking relief from his state conviction on grounds his Sixth Amendment right to effective assistance of counsel was violated. Specifically, Lewis contends that his trial counsel's failure to file a notice of appeal constituted constitutionally-deficient performance within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and deprived him of his first appeal of right. In accordance with the foregoing, we reverse the district court's order denying habeas relief and remand with instructions that a writ be issued conditioned on the Commonwealth reinstating nunc pro tunc Lewis's right of first appeal.


A. Trial Proceedings

Lewis is presently an inmate at the State Correctional Institution at Pittsburgh where he is serving a 30 to 60 year sentence imposed by the Pennsylvania Court of Common Pleas of Allegheny County ("trial court") following his conviction on six counts of robbery and nine other criminal offenses. Lewis pleaded guilty to the charges on January 27, 1987, and was sentenced on March 3, 1987. Lewis was sentenced to six consecutive 5 to 10 year terms for each robbery count, to be followed by eleven years of probation for the bad checks and firearms charges. Lewis was represented by John Elash, a court-appointed attorney, during the guilty plea and sentencing proceedings. Following the announcement of the sentence, the trial judge informed Lewis of his right to file post-trial motions challenging the validity of his guilty plea or requesting modification

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of the sentence within 10 days of the proceeding.

On March 12, 1987, nine days following his sentencing, Lewis filed a timely motion pro se in the trial court challenging the validity of his guilty plea on several grounds, including ineffective assistance of counsel. On April 10, 1987, trial counsel filed a "Motion for Leave to Withdraw Guilty Plea," which the trial court summarily denied without opinion. The trial court did not rule on Lewis's pro se motion and the parties indicate that it remains pending. No appeal was taken from either the judgment of sentence or the trial court's ruling denying the counseled motion to withdraw the guilty plea.

B. First Petition for Post-Conviction Relief Under State Law

On February 1, 1988, Lewis filed his first post-conviction petition pro se pursuant to the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. § 9541 et seq, 1 in the Common Pleas Court of Allegheny County. Counsel was appointed and an amended petition was subsequently filed. Among the issues raised in the PCHA petition was ineffective assistance of counsel based on trial counsel's: (1) failure to move to withdraw Lewis's guilty plea when the trial court did not accept the alleged plea agreement and sentence Lewis to 5 to 10 years on each robbery count running concurrently rather than consecutively; (2) failure to appeal the trial court's denial of Lewis's motion for leave to withdraw the guilty plea "despite having a meritorious argument that the guilty plea was unlawfully induced"; and (3) failure to file a direct appeal from the denial of the post-trial motion and judgment of sentence. 2 Appendix, Vol. 1 at 117. Lewis's PCHA petition was denied following an evidentiary hearing. Lewis appealed the decision to the Superior Court, which addressed the sole of issue of whether Lewis was denied his right of direct appeal. The Superior Court concluded that its prior decision in Commonwealth v. Dockins, 324 Pa.Super. 305, 471 A.2d 851 (1984), which holds that "trial counsel cannot be found ineffective for failing to file a direct appeal when not requested to do so," was controlling. The court affirmed the denial of Lewis's petition for post-conviction relief under the PCHA based on its conclusion that:

[t]rial counsel admitted discussing the possible grounds for appeal and mentions that none of the grounds were of appellate merit. The only evidence indicating the desire to appeal was provided in the appellant's testimony at the hearing on the PCHA petition. However, in reviewing the transcript of the hearing, we find nothing in the record to support the appellant's testimony. The PCHA court resolved the issue of credibility in favor of trial counsel. That determination will not be disturbed on appeal. We therefore adhere to the holding in Dockins, ... providing that trial counsel cannot be found ineffective for failing to file a direct appeal when not requested to do so.

Appendix, Vol. II at 385. Lewis's petition for allocator to the Pennsylvania Supreme Court appealing the Superior Court's ruling was denied.

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C. Second Petition for State Post-Conviction Relief

Lewis, represented by counsel, filed a second petition for post-conviction relief on February 14, 1995, pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Lewis again contested the validity of his guilty plea and alleged trial counsel was ineffective on a number of grounds, to include for failing to take direct appeal from the judgment of sentence which, Lewis contended, was contrary to the terms of his guilty plea. Another evidentiary hearing was held, and the PCRA petition denied thereafter. Lewis appealed the decision to the Superior Court. The court disposed of the question of Lewis's right to a direct appeal in a footnote, holding that "his claim was meritless" since the court had previously decided the claim against him when it adjudicated his first post-conviction petition under the PCHA, and held that Dockins precluded relief. Appendix, Vol. II at 389 n. 2 (citing Commonwealth v. Lewis, No. 978 Pittsburgh 1989, 404 Pa.Super. 649, 580 A.2d 1165 (Pa.Super. Ct. filed July 18, 1990)). Lewis's petition for leave to appeal this decision to the Pennsylvania Supreme Court was denied.

D. Federal Habeas Petition

Following the exhaustion of his state remedies, Lewis filed a timely pro se petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania on August 4, 2000. In his petition, Lewis alleged, inter alia, that the decisions of the Commonwealth courts ran counter to clearly established federal law. Specifically, Lewis contended that his trial counsel was ineffective for failing to file a direct appeal from the trial court's denial of his motion for leave to withdraw his guilty plea and the judgment of sentence. The district court referred the case to the magistrate judge who addressed only the question of whether trial counsel was ineffective for causing Lewis to enter a guilty plea that was not voluntary and intelligent. Concluding that the state courts' resolution of this question was not contrary to clearly established law, the magistrate judge recommended that Lewis's petition for habeas relief be denied.

Lewis timely filed objections to the magistrate's report and recommendation, arguing that the magistrate judge failed to (1) review his claim of ineffectiveness arising from trial counsel's failure to take a direct appeal, and (2) made no determination as to whether the record supported the state courts' finding that he had not asked trial counsel to take an appeal. Lewis further argued that "counsel denied assistance by unconstitutionally abandoning his assignment to my case during critical judicial proceedings without filing an appeal." Appendix, Vol. III at 567. In support of his objections, Lewis cited to the Supreme Court's decisions in Flores-Ortega and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). By order, the district court adopted the magistrate judge's report and recommendation and denied Lewis's petition for federal habeas relief.

Lewis filed a timely notice of appeal in this court. We granted Lewis's application for a certificate of appealability to consider whether trial counsel was ineffective for failing file a direct appeal.


A. Standard of Review

Our jurisdiction to review a district court's order denying a state inmate's petition for habeas relief is derived from 28 U.S.C. §§ 1291, 2253. Where, as in this case, "the District Court relied exclusively on the state court record and did not hold

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an evidentiary hearing, our review of its decision is plenary." Moore v. Morton, 255 F.3d 95, 103 (3d Cir. 2001) (citation omitted). Lewis, a state inmate seeking relief from his state court conviction, filed his federal habeas petition in 2000; thus our adjudication of this case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which, in relevant part, 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...

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