Carl R. Rice v. James T. Wynder

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4689
CARL R. RICE,
Appellant
v.
JAMES T. WYNDER; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 06-cv-00683)
District Judge: Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: September 30, 2009)
OPINION
BARRY, Circuit Judge
On May 17, 2007, we granted a certificate of appealability as to two of Carl Rice’s

-- 1 of 9 --

Rice is a U.S. citizen, and later stated that the reference to deportation was a1
mistake.
-2-
federal habeas claims, each of which alleged a violation of his Sixth Amendment right to
the effective assistance of counsel. Rice argues that counsel rendered ineffective
assistance when he failed to file a direct appeal and when he failed to properly advise
Rice regarding the possibility of obtaining a reduction of his sentence, thereby inducing
Rice to plead guilty. We will affirm.
I.
Rice pled guilty to third-degree murder and other related charges pursuant to a
plea agreement in which he agreed to a sentence of 27 to 54 years in prison in return for
the Commonwealth’s agreement to drop a first-degree murder charge. Rice did not file a
direct appeal, but instead filed a PCRA petition in which he apparently argued, although
it is less than clear, that counsel was ineffective because he failed to file a post-sentence
motion for modification of the sentence, failed to advise Rice that his guilty plea could
result in deportation, and failed to file an appeal in a timely manner. The PCRA Court1
denied Rice’s petition, but the Superior Court remanded for a hearing as to “whether
[Rice] indeed requested that counsel file a direct appeal, whether counsel ineffectively
failed to file that appeal, and for consideration of any other issues raised by [Rice].”
(App. at 87.)
The PCRA Court held a two-part hearing at which Rice was represented by

-- 2 of 9 --

-3-
counsel. At the first part of the hearing, on February 23, 2004, the Court heard the
testimony of plea counsel, who testified that an intermediary asked him to seek
reconsideration of Rice’s sentence and that he failed to do so. Counsel was unclear as to
whether Rice himself requested him to file an appeal or a post-sentence motion.
Rice then testified that he was seeking only reconsideration of his sentence and that he
was not seeking to withdraw his plea. Rice did not ask that his appellate rights be
reinstated and counsel confirmed with Rice, on the record, that the only relief Rice was
seeking was reconsideration of his sentence.
The PCRA Court then scheduled an evidentiary hearing “with regard to [the]
motion to reconsider or modify the sentence,” to be held the following week. (App. at
31.) At that hearing, on February 27, 2004, Rice testified that he understood that he
agreed to 27 to 54 years, but that “I understood this to mean . . . maybe by the mercy of
the Court, the mitigating factors, maybe the plea would have been 20 to 40.” (App. at
34.) Rice testified that plea counsel never told him that the sentence could not be
modified from the agreed-upon 27 to 54 years, and did tell him “he would file a motion
to reconsider the sentence in five years or something like this.” (App. at 35.) On cross-
examination, Rice confirmed that he had committed the crimes to which he had pled
guilty and had testified truthfully as to his understanding of his plea at the plea colloquy.
He stated that the plea to third degree murder was “greatly appreciated” (App. at 34)
because it ensured that he would not face the death penalty. In closing, counsel stated:

-- 3 of 9 --

-4-
“[P]etitioner is not attempting to withdraw his plea. He is not saying that he is not guilty.
What he is saying is that he did not understand that it was binding that he would get 27 to
54 years incarceration.” (App. at 41.)
The PCRA Court then determined:
I think, Mr. Rice, I think he understood exactly what was going on at the
time of his plea; was thankful that he avoided both the death penalty and a
life sentence; that this is a clear case of change of heart, hindsight, second-
guessing, whatever, disappointment in some way subsequent to the time,
although he was thoroughly satisfied, I do believe, at the time of the event
when he received the absolute benefit of his bargain, which was the 27 to
54 years. (App. at 41.)
On appeal from this decision, Rice took a different approach, arguing that the
PCRA Court should have allowed him to withdraw his guilty plea because it was induced
by counsel’s erroneous sentencing advice. The Superior Court found that Rice had
abandoned any claim of ineffective assistance as to the filing – or non-filing – of a direct
appeal. The Court went on to discuss, in some detail, the applicable law and, in much
detail, the record that it found supported the PCRA Court’s conclusion that the requisites
for a valid plea had been satisfied in the written and oral plea colloquies. The Court
thereupon found that
[t]he record supports the PCRA court’s conclusion that Appellant chose to
enter the plea, and, after he was sentenced in accordance with the
agreement in exchange for the withdrawal of first degree murder charges,
he was disappointed with the negotiated sentence. “Our law does not
require that a defendant be totally pleased with the outcome of his decision
to plead guilty, only that his decision be voluntary, knowing and
intelligent.” Pollard, 832 A.2d at 524 (quoting Commonwealth v. Baldwin,
760 A.2d 883, 885 (Pa. Super. 2000), appeal denied, 566 Pa. 634, 781

-- 4 of 9 --

-5-
A.2d 138 (2001)).
(App. at 95). Concluding that Rice’s negotiated guilty plea was validly entered, the
Court rejected the ineffective assistance of counsel claim finding that counsel was not
ineffective for failing to raise a meritless claim. The Pennsylvania Supreme Court denied
review.
In his habeas petition, Rice alleged that he was deprived of his Sixth Amendment
right to effective assistance of counsel not because counsel failed to file an appeal, but
because counsel failed to file a post-sentence motion despite the fact that Rice
“specifically asked plea counsel to file a motion for reconsideration of his sentence
within the 10-day window permitted for doing so.” (App. at 51.) Rice alleged, as well,
that counsel did not explain to him that “[he] was pleading guilty for a specific
sentence,” and that “[his] youth at the time of the plea, as well as his poor education,
combined with plea counsel’s ineffectiveness rendered his guilty plea unknowing and
involuntarily entered.” (App. at 51-52.)
By order dated November 5, 2006, the District Court approved and adopted the
Report and Recommendation of the Magistrate Judge, and denied the habeas petition. In
the Opinion adopted by the Court, the Magistrate Judge recognized that the terms
“motion for reconsideration” and “appeal” were used interchangeably by counsel at the
PCRA hearing. (App. at 6, n.1). Somewhat curiously, the Magistrate Judge continued to
use the terms interchangeably, calling them in his Opinion “appellate rights,” and

-- 5 of 9 --

It appears that the complete state record was not before the Magistrate Judge or the2
District Court when they ruled or before us when we granted a certificate of appealability.
It is before us now.
-6-
concluding that habeas relief was not warranted because Rice’s “state appellate rights”
had effectively been reinstated “through two PCRA evidentiary hearings and full
appellate review.” (Id. at 12). He concluded as well that the Superior Court’s ruling as
to the voluntariness of Rice’s plea was “well in accord with federal law,” and why, and
that to accept Rice’s argument that plea counsel’s advice – or lack thereof – induced his
guilty plea because Rice believed that he could file a motion for reconsideration “would
require the Court to disregard outright all the statements made in open court, on-the-
record and in direct response to questions about [Rice’s] understanding of the
consequences of his plea.” (App. at 14, 16.)
We granted a certificate of appealability as to two issues: (1) whether counsel
rendered ineffective assistance when he failed to file a direct appeal; and (2) whether
Rice’s guilty plea was induced by plea counsel’s failure to properly advise him regarding
the possibility of obtaining a reduction of his agreed-upon sentence under Pennsylvania
law.2
II.
We exercise plenary review of the decision of the District Court denying, without
an evidentiary hearing, Rice’s habeas petition. Thomas v. Horn, 570 F.3d 105, 113 (3d
Cir. 2009). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254,

-- 6 of 9 --

-7-
and we have jurisdiction pursuant to 28 U.S.C. §§1291 and 2253.
A. Ineffective Assistance for Failure to File an Appeal
We granted a certificate of appealability as to defense counsel’s failure to file a
direct appeal. In light of the full record now before us, we need not have done so. Rice
repeatedly testified at the PCRA hearing that the only relief he was seeking was
modification of his sentence by the sentencing judge, thus essentially admitting that
counsel was not ineffective for not filing an appeal. This was confirmed in Rice’s brief
on appeal from the denial of the PCRA petition which stated: “It was established [at the
PCRA hearing] that the appellant did not wish to appeal his conviction, but that he
desired only a modification of sentence.” (App. at 150.) The issue, if issue it be, never
went any further, and the Superior Court concluded that Rice “abandoned any claims
related to counsel’s failure to file a direct appeal.” (App. at 91 n.4). We agree.
B. Guilty Plea Induced by Ineffective Assistance of Counsel
We may not grant relief as to a claim that was adjudicated on the merits in state
court proceedings unless that adjudication resulted in a decision that was “contrary to, or
involved an unreasonable application of, clearly established Federal law,” or resulted in a
decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. §
2254(d). The state courts’ factual findings are presumed to be correct unless the
presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
In cases where a defendant claims that he was induced to plead guilty based on the

-- 7 of 9 --

-8-
ineffective assistance of counsel, the defendant must show “a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). We have held that a defendant
“must make more than a bare allegation that but for counsel’s error he would have
pleaded not guilty and gone to trial.” Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.
1995), superseded by statute on other grounds as stated in Dickerson v. Vaughn, 90 F.3d
87, 90 (3d Cir. 1996).
Rice alleges that, but for counsel’s failure to inform him that his sentence was not
modifiable, he would have pleaded not guilty and that “part of the reason he entered the
plea was because he felt the sentence could be revisited and shortened at a later point.”
(Appellant’s Br. at 41). During the PCRA hearing, he specifically and repeatedly
disclaimed any interest in withdrawing his guilty plea, and confirmed that he truthfully
answered all of the trial court’s questions about his understanding of his plea during the
plea colloquy. Moreover, he did not testify that any advice given by plea counsel before
entry of his guilty plea induced him to plead guilty, but only that plea counsel told him, at
some point, that he would file a motion in five years and that the sentence, at that point,
could be reduced. On appeal from the denial of the PCRA petition, however, he alleged
that “there is a reasonable probability that he would have gone to trial had he been fully
cognizant of the sentence to which he was agreeing,” (App. at 132), although he offered
nothing to support that allegation.

-- 8 of 9 --

-9-
We have discussed in some detail the proceedings before the PCRA Court and the
Superior Court and will not reprise that discussion here. Suffice it to say that the District
Court correctly concluded that the state courts’ adjudication of this claim on the merits
was not “contrary to” or an “unreasonable application of clearly established Federal law,”
nor did it result in a decision that was based on an “unreasonable determination of the
facts.” 28 U.S.C. § 2254(d).
III.
We will affirm the order of the District Court.

-- 9 of 9 --