McCollister v. Cameron, 12-1475

• Decision Date: 15 August 2013
• Docket Number: No. 12-1475,12-1475
• Parties: ERIC C. MCCOLLISTER, Appellant v. SUPERINTENDENT CAMERON; THE DISTRICT ATTORNEY OF MONTGOMERY COUNTY; and THE ATTORNEY GENERAL OF PENNSYLVANIA
• Court: U.S. Court of Appeals — Third Circuit

ERIC C. MCCOLLISTER, Appellant v. SUPERINTENDENT CAMERON; THE DISTRICT ATTORNEY OF MONTGOMERY COUNTY; and THE ATTORNEY GENERAL OF PENNSYLVANIA

No. 12-1475

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Filed: August 15, 2013

NOT PRECEDENTIAL

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

OPINION

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 theissue 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 Commonwealthfiled 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.

(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.

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.

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...