Warren v. Kyler

• Decision Date: 07 September 2005
• Docket Number: No. 03-2190.,03-2190.
• Citation: 422 F.3d 132
• Parties: Daniel K. WARREN, Jr., Appellant v. Kenneth D. KYLER, the District Attorney of the County of Lehigh, the Attorney General of the State of Pennsylvania, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

422 F.3d 132

Daniel K. WARREN, Jr., Appellant v.Kenneth D. KYLER, the District Attorney of the County of Lehigh, the Attorney General of the State of Pennsylvania, Appellees.

No. 03-2190.

United States Court of Appeals, Third Circuit.

Argued July 11, 2005.

Filed September 7, 2005.

Mark Diamond(Argued), Yorkville Station, New York, NY, for Appellant.

James B. Martin, District Attorney of Lehigh County, Matthew D. Weintraub(Argued), Chief Deputy District Attorney, David J. Mussel, Assistant District Attorney, Allentown, PA, for Appellee.

Before ALITO and BECKER, Circuit Judges and SHADUR, District Judge.^*

SHADUR, District Judge.

Daniel Warren("Warren") is currently in the State Correctional Institution at Huntingdon, Pennsylvania, serving a prison sentence of 10 to 20 years imposed after he entered a negotiated guilty plea to one count of burglary on October 9, 1998.Warren now claims that the Commonwealth's imposition of that sentence has violated his federal due process rights, and he seeks federal habeas corpus relief under 28 U.S.C. § 2254("Section 2254") on that basis.Because we conclude that the requirements of Section 2254 have not been met, we affirm the District Court's denial of habeas relief.

Factual and Procedural Background

Under the terms of Warren's plea agreement, other pending charges were dropped and the burglary was treated as a "strike two" offense by the Commonwealth.That latter aspect of the agreement meant that the Pennsylvania mandatory sentencing statute, 42 Pa. Cons.Stat. § 9714("Section 9714"), was applied during Warren's sentencing.At that time Section 9714(a)(1) provided:

Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence and has not rebutted the presumption of high risk dangerous offender . . . be sentenced to a minimum sentence of ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.

That "presumption of high risk dangerous offender" applied in Warren's case because the terms of Section 9714(b) were met: He had a prior conviction for a crime of violence that had taken place fewer than seven years before the charged "strike two" offense.To rebut the presumption, Section 9714(c) required Warren to present evidence to the court at a hearing and required the sentencing judge to consider 12 case-specific factors before deciding whether the evidence presented was sufficient.After finding that no evidence presented had overcome the operable presumption against Warren, the sentencing judge imposed the sentence mandated by Section 9714 on December 28, 1998.

Shortly thereafter Warren sought to have the court reconsider the sentence imposed.But that effort was rebuffed on February 5, 1999 because Warren's attorney had initiated a direct appeal to the Superior Court of Pennsylvania.Eleven days later the direct appeal was discontinued by Warren's attorney.Then Warren's later motions seeking to revive his direct appeal by treating his submissions nunc pro tunc were denied, effectively ending any direct review of Warren's sentence.

That chain of events formed the basis for Warren's first petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons.Stat. § 9541.Warren claimed ineffectiveness of trial counsel because his direct appeal had been discontinued without his consent.After post-conviction counsel was appointed, an evidentiary hearing was conducted by the post-conviction court to assess his claim on June 20, 2000.Shortly after that hearing Warren filed motions claiming ineffectiveness of his post-conviction counsel.On August 21, 2000 the post-conviction court issued a ruling that dismissed both of Warren's ineffectiveness-of-representation claims, and Warren appealed that decision to the Superior Court of Pennsylvania.

After the appeal had been filed, Warren submitted an application to the Superior Court seeking a determination as to whether his waiver of counsel as to that appeal was knowing, intelligent and voluntary.In response the Superior Court remanded the appeal to the post-conviction court for the purpose of conducting a colloquy.On February 20, 2001 the post-conviction court determined that the waiver had been knowing, intelligent and voluntary, so that Warren continued to represent himself on his post-conviction appeal.

In the midst of the just-described waiver proceedings, Warren filed a second post-conviction petition on January 11, 2001.This time he challenged the constitutionality of his sentence in light of the Pennsylvania Supreme Court's invalidation of Section 9714 in Commonwealth v. Butler,563 Pa. 324, 760 A.2d 384(2000).But because that second petition was filed while his original post-conviction appeal was still pending, it was dismissed on January 22, 2001.

On December 14, 2001the Superior Court disposed of all issues related to Warren's post-conviction challenges.First the court affirmed the finding that Warren's waiver of counsel on the appeal had been knowing, intelligent and voluntary.It also affirmed the rejection of the ineffectiveness claims made in Warren's first post-conviction petition.Finally, the court directly addressed the constitutional claim raised by Warren in his second post-conviction petition and explicitly declined to apply Butler(emphasis in original):

It is axiomatic that a new rule of law, even if given full retroactive effect, will not be applied to a collateral proceeding attacking the conviction.Commonwealth v. Tilley,566 Pa. 312, 780 A.2d 649(2001).Instead, for a new rule of law to be applied to a proceeding, the issue had to be preserved at all stages, including on direct appeal.Id.;see alsoCommonwealth v. Todaro,549 Pa. 545, 701 A.2d 1343(1997)(a new rule of law is not applied in a collateral attack on a conviction).¹In the present case, Appellant did not raise the constitutionality of the statute during his plea proceedings nor did he raise it during direct appeal.Hence, it cannot be applied in this collateral proceeding.

Warren filed a petition for federal habeas corpus relief under Section 2254 on February 12, 2002, raising three objections to the state court proceedings.Two of those objections concerned the state court's refusal to restore his direct right of appeal, and the third challenged the use of Section 9714 in his sentencing.All three objections were rejected, and the writ of habeas corpus was therefore denied, when the District Court adopted the report and recommendations of the magistrate judge on March 11, 2003.

Warren then filed a timely appeal in this court.We granted Warren's application for a certificate of appealability as to two issues: (1) whether the failure to apply Butler retroactively violated Warren's due process rights, and (2) whether the application of Section 9714's burden shifting provision violated Warren's due process rights independently of the ruling on the first issue.Because the District Court's determination was based solely on the information contained in the state court record, our review of those issues is plenary (Marshall v. Hendricks,307 F.3d 36, 50(3d Cir.2002)).

Federal Habeas Standards

To qualify for relief under Section 2254, Warren must demonstrate that "he is in custody in violation of the Constitution or laws or treaties of the United States"(Section 2254(a)).As already stated, he contends that the state has violated his federal due process rights in either or both of two respects, We address his contentions in turn.

Retroactivity as a Due Process Issue

As an initial basis for his claim that his due process rights have been violated, Warren attacks the Pennsylvania Superior Court's decision not to apply Butler retroactively.Although that argument raises the issue of retroactivity in the context of habeas review, it is not one of the sort governed by the Supreme Court's standard articulated in Teague v. Lane,489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334(1989), because we are not asked to decide the applicability of a new federal rule of jurisprudence to an already concluded state proceeding.Instead the issue here is whether the Due Process Clause is implicated when a state court declines to give retroactive effect to one of its own decisions.

We previously addressed a closely related issue in Fiore v. White,149 F.3d 221(3d Cir.1998).After the Pennsylvania Supreme Court had decided Commonwealth v. Scarpone,535 Pa. 273, 634 A.2d 1109(1993), interpreting a state statute, Fiore sought through state post-conviction proceedings to have that ruling applied retroactively to his case.When the state court declined that request, he filed a petition for federal habeas relief.

In reviewing his petition, we first noted that "Fiore is entitled to relief only if federal law requires retroactive application of Scarpone"(Fiore,149 F.3d at 224).That limitation on the scope of our review stems from the Supreme Court's reemphasis in Estelle v. McGuire,502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385(1991)"that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions," and it applies with equal force here.

As for the question that we could properly address on habeas review — whether the United States Constitution required the state to apply its decision on a question of state law retroactively — we said this in Fiore,149 F.3d at 224-25(some citations omitted):

The district court held, and Fiore maintains on appeal, that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require retroactive application of Scarpone.This conclusion, however, is at odds with the Supreme Court's longstanding position that "the federal constitution has no voice upon the subject" of...