Eric Peace v. Edward Klem

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3571
ERIC PEACE,
Appellant
v.
EDWARD KLEM;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 06-cv-3379
(Honorable Harvey Bartle III)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
(Filed: June 26, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Eric Peace brings this habeas corpus action under 28 U.S.C. § 2254.
Peace pleaded guilty to three counts of kidnapping and one count each of robbery of a

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Peace, along with two others, kidnapped a woman and her two young children at1
gunpoint and held them for ransom for several days in the hopes of extorting drugs from
her boyfriend, supposedly a top neighborhood drug dealer. After being arrested, Peace
made a full confession to the police detailing his involvement in the crimes.
Peace pleaded guilty initially on July 7, 2002. He then moved to withdraw his
guilty plea, a motion the court granted on September 25, 2002. On February 3, 2003,
Peace filed a suppression motion which was denied. Peace then entered a guilty plea in
which he agreed to very limited appeal rights. At his sentencing, Peace apologized to his
victims and to the court, and asked for leniency in his sentencing. He was sentenced to ten
to twenty years imprisonment.
Pa. R. App. P. § 1925(b) states:2
The lower court forthwith may enter an order directing the appellant to file of
record in the lower court and serve on the trial judge a concise statement of the
matters complained of on the appeal no later than 14 days after entry of such order.
A failure to comply with such direction may be considered by the appellate court
as a waiver of all objections to the order, ruling or other matter complained of.
On June 13, 2004, three days after the PCRA court filed its opinion, appellate counsel
was directed by the Pennsylvania Superior Court to file such a concise statement. The
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motor vehicle, possessing instruments of crime, and criminal conspiracy. He took no1
direct appeal. Peace filed his timely petition for collateral relief in state court under
Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, on June 3,
2003, requesting reinstatement of his direct appellate rights because he allegedly asked
counsel to file a direct appeal, which counsel failed to do. The PCRA court, after an
evidentiary hearing, found that Peace never asked his counsel to file a direct appeal.
Accordingly, the court dismissed Peace’s petition. Peace appealed to the Pennsylvania
Superior Court, which affirmed the denial of PCRA relief and found that Peace waived
his claims because he had failed to comply with Pa. R. App. P. § 1925(b). On May 9,2

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(...continued)
entire statement consisted of: “Whether the court erred in denying Petitioner PCRA
relief.” The Pennsylvania Superior Court determined the statement was too general and
vague to alert the court of the specific issues to be raised on appeal.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.3
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2006, the Pennsylvania Supreme Court denied Peace’s petition for appeal.
Peace timely filed a petition for federal habeas corpus relief in the Eastern District
of Pennsylvania. The District Court, in accordance with the Report and Recommendation
of the Magistrate Judge, determined Peace’s claims were procedurally defaulted and
denied relief. We granted a certificate of appealability under 28 U.S.C. § 2253(c)(1) for
the sole question of whether trial counsel was ineffective for failing to file a direct
appeal. We will affirm the District Court.3
We review the District Court’s denial of habeas corpus relief de novo. Harrington
v. Gillis, 456 F.3d 118, 124 (3d Cir. 2006). Our review is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, habeas
relief is only appropriate for a claim that was adjudicated on the merits in state court if the
state adjudication of the claim “(1) resulted in a decision that is contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (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 proceedings.” 28 U.S.C. § 2254(d). Furthermore, a “determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have the

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In general, we may not consider issues on appeal that are not within the scope of the4
certificate of appealability. 28 U.S.C. § 2253(c)(3); Villot v. Varner, 373 F.3d 327, 337
n.13 (3d Cir. 2004). We note that the certificate of appealability before us does not
include the issue of procedural default.
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burden of rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).
The Commonwealth contends, and the District Court and Magistrate Judge
competently found, that Peace had procedurally defaulted his claims because he did not
adhere to the state appellate procedural rules. Even if we assume Peace’s claims are not
procedurally defaulted, we would still apply AEDPA’s deferential standard on the factual4
findings made by the PCRA court. Unless Peace produced clear and convincing evidence
to the contrary, we are therefore bound by the PCRA court’s determination that he did not
ask his counsel to file a direct appeal.
Peace contends he verbally asked his counsel to file an appeal after his sentencing.
In testimony at the PCRA hearing, his counsel denied he was ever asked to file an appeal.
The PCRA court found counsel to be credible. The court also identified additional
evidence to support this finding: two letters, one Peace sent to his counsel which never
mentioned a request for an appeal; the second from Peace’s mother to counsel thanking
him for his help, but also making no mention of a request for an appeal. In light of this
evidence, the PCRA court concluded the “defendant did not meet his burden of proving

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ineffectiveness for failure to file a requested appeal because he never requested such from
his attorney.”
To overcome the PCRA court’s finding of fact, Peace must present clear and
convincing evidence of his attempts to communicate with his attorney or evidence which
corroborated his testimony that he asked his counsel to file a notice of appeal. See 28
U.S.C. § 2254(e)(1). Peace produced no new or different evidence in his federal petition.
He relied entirely upon his testimony from the PCRA hearing. As noted, Peace’s
testimony conflicts with the testimony by his trial counsel whom the PCRA court found to
be credible.
In conjunction with the PCRA court’s findings of fact, we also note Peace pleaded
guilty after his motion to suppress was denied. The Supreme Court has stated that
“[a]lthough not determinative, a highly relevant factor in this inquiry [whether defendant
asked for counsel to file a direct appeal] will be whether the conviction follows a trial or
a guilty plea, both because a guilty plea reduces the scope of possible appealable issues
and because such a plea may indicate that the defendant seeks an end to judicial
proceedings.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Peace’s guilty plea is
probative (but not dispositive) in indicating petitioner’s desire to end judicial proceedings.
Therefore, because the petitioner did not carry his burden of challenging the
presumptively correct factual findings of the PCRA court by clear and convincing
evidence, we will affirm the judgment of the District Court denying the habeas petition.

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