Richardson v. Superintendent Coal Twp. Sci

• Decision Date: 02 October 2018
• Docket Number: No. 15-4105,15-4105
• Citation: 905 F.3d 750
• Parties: Melvin Keith RICHARDSON, Appellant v. SUPERINTENDENT COAL TOWNSHIP SCI; the Attorney General of the State of Pennsylvania
• Court: U.S. Court of Appeals — Third Circuit

905 F.3d 750

Melvin Keith RICHARDSON, Appellant

v.SUPERINTENDENT COAL TOWNSHIP SCI; the Attorney General of the State of Pennsylvania

No. 15-4105

United States Court of Appeals, Third Circuit.

Argued April 26, 2018

Filed: October 2, 2018

Leigh M. Skipper, Chief Federal Defender, Brett G. Sweitzer, Assistant Federal Defender & Chief of Appeals, Keith M. Donoghue, Assistant Federal Defender [ARGUED], Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant.

Josh Shapiro, Attorney General, Jennifer C. Selber, Director, Criminal Law Division, James P. Barker, Chief Deputy Attorney General, Jennifer A. Buck, Senior Deputy Attorney General [ARGUED], Office of Attorney General of Pennsylvania, Appeals & Legal Services, Strawberry Square, 16th Floor, Harrisburg, PA 17120, Counsel for Appellees.

Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Melvin Richardson was denied counsel for part of his state-court sentencing. But neither his post-sentencing lawyer nor his state-habeas lawyer challenged that denial of counsel. Now, on federal habeas, he seeks to challenge his post-sentencing lawyer's ineffectiveness.

To do so, he has to overcome both lawyers' failures. He must attack his post-sentencing lawyer's failure to raise the denial of counsel as itself a denial of effective counsel. But he can do that only if he had a right to counsel at the post-sentencing stage. And, before attacking his post-sentencing counsel, he must attack his post-conviction-relief (state-habeas) lawyer's failure under Martinez v. Ryan , 566 U.S. 1, 9, 17, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). But he can do that only if his post-sentencing lawyer was acting as trial counsel, rather than appellate counsel.

We announce two holdings today: First, in Pennsylvania state court, the post-sentencing-motions stage is a critical stage at which a defendant is entitled to the effective assistance of counsel. Richardson was denied that right because his post-sentencing lawyer was ineffective.

Second, the line dividing trial from appeal falls naturally at the notice of appeal. Post-sentencing motions precede the notice of appeal, so they fall on the trial side of the line. Thus, when a state-habeas lawyer fails to raise a post-sentencing lawyer's ineffectiveness, the prisoner may raise that issue for the first time in his federal habeas petition. So Richardson's ineffective-assistance-of-counsel claim is properly before us, and it is meritorious. We will thus remand for the District Court to grant the writ of habeas corpus and order a new sentencing hearing.

I. BACKGROUND

A. Pennsylvania State Court

In 2003, Richardson and his son burgled two empty homes and fled from police. During a high-speed car chase, he rammed into a police car and crashed into a utility pole. He was prosecuted in the Court of Common Pleas of Chester County, Pennsylvania. A jury convicted him of burglary, criminal conspiracy, theft, aggravated assault, resisting arrest, and flight from a police officer.

Mid-sentencing, Richardson decided that he was dissatisfied with his lawyer and sought to fire him. The sentencing judge treated Richardson's request as waiving his right to counsel. But the judge did not, as the Sixth Amendment requires, question Richardson to ensure that his waiver was knowing and voluntary. And Richardson's post-sentencing and state-habeas lawyers both overlooked this error.

1. Joseph Green, Jr. (Trial and First Day of Sentencing) . Richardson hired Joseph Green, Jr., as his lawyer for trial and sentencing. His sentencing took two days. On the first day, Green asked the court to schedule a psychological evaluation and postpone the sentencing hearing. The judge agreed and they reconvened a month later.

At the start of the second day, Green told the court that Richardson had asked him to withdraw as counsel. The prosecution objected to Green's last-minute withdrawal. Richardson replied that he "c[ould] represent [him]self" and that he "fe[lt] that Mr. Green d[id]n't have [his] best interests at heart." App. 305.

The judge asked Richardson no questions about discharging Green. He simply observed: "You have competent counsel, and you will be foolish to terminate his services when he's prepared to proceed." App. 310. The judge then gave an ambiguous instruction: "I'm going to permit Mr. Green to leave, if he wants to leave, or to stay and stand by. But I'm going to proceed to sentence you today." App. 311. At the prosecution's suggestion, the judge purported to "keep [Green] here for now to protect your appellate rights at least." App. 312.

Green later testified that he "d[id]n't know if [the judge had] granted the motion for leave to withdraw or not. ... I was present, but I did not conduct [the second day of sentencing]. The extent to which someone or another concludes that I was representing Mr. Richardson is up to them to decide." App. 222. The sentencing transcript gives no hint that Green said or did anything further to protect Richardson's rights.

2. Pro Se (Second Day of Sentencing) . The sentencing continued without any more participation by Green. Richardson spoke at length to the court, submitted letters and certificates from his employers, and called his fiancée to testify. The judge reviewed this new information, as well as Green's earlier submissions, and sentenced Richardson to 17 ¹/_/2 to 39 years' imprisonment followed by 10 years' probation.

3. Christian Hoey (Post-Sentencing Motions and Direct Appeal) . The state court then appointed Christian Hoey to represent Richardson. At that stage, Hoey could file a post-sentencing motion to reconsider Richardson's sentence and then an appeal. Pa. R. Crim. P. 720(A), (B).

Hoey never challenged the sentencing judge's failure to conduct a colloquy before letting Richardson proceed pro se. He did move to reconsider Richardson's sentence on other grounds, but the sentencing judge denied that motion. Hoey then appealed the sentence, challenging it as excessive. But the Superior Court affirmed.

4. Robert Brendza (State Habeas/PCRA) . Richardson then filed a pro se state-habeas petition under Pennsylvania's Post Conviction Relief Act (PCRA). Richardson's handwritten petition and typed amendment expressly raised two right-to-counsel claims.

First, "[t]he trial Judge erred when he did not secure counsel for the defendant during his sentencing, [d]enying [d]efendant's sixth amendment right to [c]ounsel." App. 387. Richardson argued that, before letting a defendant represent himself, a "judge must conduct a penetrating and comprehensive inquiry of the defendant to ascertain whether he understands the nature of the charges against him, the permissible range of sentences to which he is exposed, the possible defenses to the charges and all the circumstances." App. 399. But "[t]here was never any inquiry into whether the defendant was knowingly and intelligently waiving his right to counsel." Id.

Second, Richardson asserted that both his trial and appellate counsel had been ineffective, the latter by not raising arguable claims. App. 387. Richardson did not list the claims that Hoey should have raised, including the denial of counsel at sentencing.

The state-habeas court appointed Robert Brendza to represent Richardson. It also returned Richardson's original and amended petition to him, saying that "whatever you needed to say needed to be raised by your attorney." App. 410. The court's instruction comported with Pennsylvania law, which tells courts not to consider pro se pleadings filed by parties who are represented by counsel (so-called "hybrid representation"). Commonwealth v. Reid , 537 Pa. 167, 642 A.2d 453, 462 (1994) ; Commonwealth v. Ellis , 534 Pa. 176, 626 A.2d 1137, 1140 (1993).

Brendza abandoned Richardson's sentencing-counsel claim. Instead, he argued that Richardson's trial and appellate counsel were ineffective for not pursuing an evidentiary issue. But Richardson persisted, and at a hearing the state-habeas court let Richardson articulate his claims of ineffective assistance of trial and appellate counsel and "judicial improprieties during [his] sentencing." App. 412-13. At the court's request, Brendza submitted a letter explaining why he thought Richardson's sentencing-counsel claim was meritless. App. 457.

The state-habeas court denied the petition, rejecting Brendza's claim as meritless. In keeping with Pennsylvania's ban on hybrid representation, the court credited Brendza's letter rejecting Richardson's separate arguments, but did not discuss the sentencing court's failure to question Richardson or the related ineffective-assistance claim. The Superior Court affirmed, and the Supreme Court of Pennsylvania denied leave to appeal.

B. Federal Habeas

1. Federal Habeas Petition. Next, Richardson filed a habeas petition pro se in federal court. He claimed that "Green was ineffective for abandoning [him] during the sentencing phase." App. 54 (Claim I). He also claimed that "[t]he trial court erred by not performing an in depth on the record colloquy when petitioner released his retained counsel during sentencing." Id. (Claim J). And he claimed that "[a]ppellate counsel Hoey was ineffective for not performing an independent investigation into the trial record to identify meritable issues for appeal and not briefing them to the court." Id. (Claim M). He made the same claim against Brendza for not independently looking for and briefing meritorious issues on state habeas. Id. (Claim N).

The magistrate judge recommended denying all claims. The District Court agreed and dismissed the habeas petition. We denied a certificate of appealability.

2. Rule 60(b) Motion . Richardson renewed these claims in a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). He argued that in Pennsylvania, defendants cannot raise ineffective-assistance-of-counsel claims until state...