Christopher Jones v. Pennsylvania Board of Probation

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2944
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CHRISTOPHER JONES,
Appellant
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
COMMONWEALTH OF PENNSYLVANIA
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1:09-cv-1518)
District Judge: Honorable Yvette Kane
Argued January 25, 2012
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Before: AMBRO, CHAGARES, and HARDIMAN, Circuit Judges.
(Filed: July 25, 2012)
Bruce A. Antkowiak, Esquire (Argued)
112 Washington Place, Apt. 15H
Pittsburgh, PA 15219
Attorney for Appellant
Kenneth A. Osokow, Esquire (Argued)
Eric L. Linhardt, Esquire
Lycoming County Office of District Attorney
48 West Third Street
Williamsport, PA 17701
Attorneys for Appellee

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____________
OPINION
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CHAGARES, Circuit Judge.
Petitioner Christopher Jones appeals the District Court‟s denial of his petition for a
writ of habeas corpus challenging his conviction in Pennsylvania state court. For the
reasons that follow, we will affirm the District Court‟s denial of Jones‟s petition.
I.
As we write solely for the parties‟ benefit, we recite only the facts essential to our
disposition. This case arises from Jones‟s decision to plead guilty in January 2001 in the
Court of Common Pleas of Lycoming County, Pennsylvania to a felony drug offense.
After pleading guilty, Jones was incarcerated for two years and released on state parole.
Years later, on November 13, 2007, a federal jury in a separate criminal action convicted
Jones of possession with intent to distribute cocaine. At sentencing, over Jones‟s
objection, the United States District Court for the Middle District of Pennsylvania held
that Jones was a career offender under the advisory United States Sentencing Guidelines
and sentenced him to 262 months of incarceration. The non-career offender advisory
Sentencing Guidelines range for that offense was 57–71 months. This Court affirmed the
attribution of career-offender status and the sentence. United States v. Christopher Jones,
332 F. App‟x 767 (3d Cir. 2009).
On March 3, 2009, Jones filed pro se this 28 U.S.C. § 2254 petition for a writ of
habeas corpus, challenging his 2001 state court conviction. He claimed that he was

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deprived of his Sixth Amendment right to effective assistance of counsel when he pled
guilty because his attorney erroneously assured him that he would not be subject to an
enhanced sentence at a later time due to his guilty plea. To the contrary, in his federal
case he was classified as a career offender due to his 2001 conviction and was given an
enhanced sentence. Jones alleged that, but for the erroneous advice, he would have
chosen to proceed to trial in his Pennsylvania case.
The District Court held that Jones‟s habeas petition was procedurally defaulted, as
the state statutes of limitations barred Jones from raising his ineffective assistance of
counsel claim in state court, and the procedural default could not be excused because
Jones had not shown cause and prejudice for the default. Accordingly, the District Court
denied his petition for a writ of habeas corpus. This Court granted a Certificate of
Appealability on three issues:
(1) whether trial counsel was ineffective for providing Jones with
misinformation regarding the collateral consequences of his guilty
plea;
(2) whether Jones‟s claim was procedurally barred; and
(3) whether Jones‟s habeas petition was barred by the one-year statute
of limitations under AEDPA [Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214].
Because we conclude that Jones‟s ineffective assistance of counsel claim is inexcusably
procedurally defaulted, we will affirm the judgment of the District Court without
addressing the other two issues raised in the Certificate of Appealability.

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II.
The District Court had jurisdiction over this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. The District Court did not hold an evidentiary hearing and relied on the state court
record only. We exercise plenary review over the District Court‟s legal conclusions.
Lambert v. Blackwell, 387 F.3d 210, 231 (3d Cir. 2004). We also exercise plenary
review over the District Court‟s determinations regarding exhaustion and procedural
default. Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008).
III.
A.
This Court may not grant a petition for a writ of habeas corpus unless the
petitioner “has exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). “In order for a claim to be exhausted, it must be „fairly presented‟ to
the state courts „by invoking one complete round of the State‟s established appellate
review process.‟” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting
O‟Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). The exhaustion requirement
“ensures that state courts have an initial opportunity to pass upon and correct alleged
violations of prisoners‟ federal rights.” Leyva v. Williams, 504 F.3d 357, 366 (3d Cir.
2007) (quotation marks omitted). Where a petitioner is clearly foreclosed from bringing
an unexhausted claim in state court, the claim is procedurally defaulted. Wenger v.
Frank, 266 F.3d 218, 223 (3d Cir. 2001).

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Federal courts may not consider the merits of a procedurally defaulted claim
unless the applicant establishes “„cause‟ to excuse the default and actual „prejudice‟ as a
result of the alleged violation of federal law or . . . that failure to consider the claim will
result in a „fundamental miscarriage of justice.‟” Carpenter, 296 F.3d at 146 (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To establish a fundamental
miscarriage of justice, a petitioner must generally demonstrate “actual innocence.”
Leyva, 504 F.3d at 366. In order to show cause, a petitioner must ordinarily “show that
some objective factor external to the defense impeded counsel‟s efforts to comply with
the State‟s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). The failure to
exhaust state remedies may be excused on the grounds of futility where there is “an
absence of available State corrective process,” or where “circumstances exist that render
such process ineffective to protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1)(B)(i)–(ii); Carpenter, 296 F.3d at 146. Futility also exists where
a state‟s highest court has ruled unfavorably on a claim involving facts and
issues materially identical to those undergirding a federal habeas petition
and there is no plausible reason to believe that a replay will persuade the
court to reverse its field.
Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000) (quotation marks omitted).
After we heard argument in this case, the United States Supreme Court added a
wrinkle to the procedural default analysis. In Martinez v. Ryan, the United States
Supreme Court held that a prisoner may establish cause for the procedural default of an
ineffective assistance of counsel claim by demonstrating that his or her counsel in an
“initial-review collateral proceeding” provided ineffective assistance of counsel. 132 S.

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Ct. 1309, 1315 (2012). What the Supreme Court termed “initial-review collateral
proceedings” are collateral proceedings that “provide the first occasion to raise a claim of
ineffective assistance at trial.” Id. Thus, the Court created a narrow exception to the rule
set forth in Coleman v. Thompson, 501 U.S. at 753–54, that an attorney‟s errors in a post-
conviction collateral proceeding do not constitute cause to excuse a procedural default.
Martinez, 132 S. Ct. at 1315. The Court declined to hold, however, that there is a
constitutional right to counsel in initial collateral review proceedings. Id.
The Court summarized the two situations in which a prisoner may establish cause
for a default of an ineffective assistance claim:
The first is where the state courts did not appoint counsel in the initial-
review collateral proceeding for a claim of ineffective assistance at trial.
The second is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was ineffective under
the standards of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L.Ed.2d 674 (1984).
Id. at 1318. In addition to proving that one of those two situations applies, the prisoner
“must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is
a substantial one, which is to say that the prisoner must demonstrate that the claim has
some merit.” Id. With respect to what constitutes a “substantial” claim, the Court
suggested, by citing Miller–El v. Cockrell, 537 U.S. 322 (2003) (describing standards for
certificates of appealability to issue), that courts should apply the standard for issuance of
certificates of appealability.

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B.
Jones failed to exhaust his ineffective assistance of counsel claim because he did
not raise it in state court at all: either on direct appeal or in a petition under the
Pennsylvania Post Conviction Relief Act (“PCRA”). A criminal defendant normally has
thirty days to file a direct appeal. 210 Pa. Code § 903(a). Under the PCRA, a criminal
defendant has one year from a final judgment in his case to challenge his conviction. 42
Pa. Cons. Stat. § 9545(b)(1). Both of those deadlines had long expired by the time Jones
allegedly discovered his attorney‟s error. Consequently, Jones had no avenue for
exhausting his claim in state court. This Court has observed that the PCRA statute of
limitations “is a jurisdictional rule that precludes consideration of the merits of any
untimely PCRA petition, and it is strictly enforced in all cases[.]” Whitney v. Horn, 280
F.3d 240, 251 (3d Cir. 2002). Moreover, the PCRA statute of limitations is not subject to
equitable tolling, except as provided by statute. Commonwealth v. Fahy, 737 A.2d 214,
222 (Pa. 1999). Thus, bringing a PCRA petition in March 2009, when he brought his
habeas petition, would have been clearly foreclosed and, therefore, Jones‟s claim was
procedurally defaulted.
First and foremost, Jones‟s failure to file a PCRA petition cannot be excused on
the basis that he did not discover that his state trial attorney had misinformed him until he
was later convicted of a federal crime. The PCRA includes an exception to the one-year
statute of limitations where “the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the exercise of due diligence”
before the statute of limitations period expired. 42 Pa. Cons. Stat. § 9545(b)(1)(ii).

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Under that exception, a petitioner has sixty days from the date that the claim could have
been presented to file the PCRA petition. Id. § 9545(b)(2).
Despite that accommodation for later-discovered facts in the PCRA, Jones is
barred from raising his claim in state court by the PCRA statute of limitations. Even if
we assume, without holding, that the factual predicate for Jones‟s ineffective assistance
of trial counsel claim was not established until the date of his federal sentencing on May
12, 2008, his PCRA petition would still have been time-barred because he had sixty days
after his federal sentencing to file a petition and he did not do so. Instead, Jones waited
until March 2009 to raise his claim for the very first time in his federal habeas petition.
Thus, the later-discovered facts do not excuse Jones‟s total failure to seek PCRA relief.
Jones maintains that his failure to file a PCRA petition within one year of his
sentencing in state court should be excused because his state trial attorney failed to
inform him of the possibility of bringing a PCRA petition and he was misled into
believing that ineffective assistance of counsel claims could only be brought on direct
appeal. Jones also argues that it would have been futile to file a PCRA petition at that
time because Pennsylvania courts had held that ineffective assistance of counsel claims
relating to counsel‟s errors during plea bargaining could not be brought in a PCRA
petition. Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 128 (Pa. 2001).
While those arguments may have held weight in 2001 or 2002, they do not
establish adequate cause for Jones‟s failure to file a PCRA petition within sixty days of
his federal sentence in 2008. At that point, the legal barrier that Jones raises no longer
existed. Commonwealth v. Grant, 813 A.2d 726, 728 (Pa. 2002) (holding that ineffective

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assistance of counsel claims should be reserved for the collateral review stage and not
brought on direct appeal). Moreover, Jones has alleged that he did not even consider
contesting his trial counsel‟s ineffectiveness until he was sentenced in federal court in
May 2008. That assertion is the basis for his argument that his habeas petition is not
time-barred by the AEDPA statute of limitations. Thus, Jones has not established that he
would have actually filed a PCRA petition in 2001 or 2002. As a result, he has not
demonstrated that either the law at the time, or his attorney‟s failure to inform him of that
PCRA option, prejudiced him, and neither of those constitutes cause to excuse his failure
to file a PCRA petition after his federal sentencing.
Jones next asserts that raising his ineffective assistance of counsel argument in a
PCRA petition would have been futile because Pennsylvania courts have held that a
petitioner cannot show deficiency supporting an ineffective assistance of counsel claim
where an attorney‟s faulty advice relates to a collateral consequence of his guilty plea.
Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010). Jones
acknowledges that the possibility of a future sentence enhancement is a collateral
consequence to his guilty plea. Appellant‟s Br. 35.1 Although there may have been a
strong possibility that the Pennsylvania court would rule against him, there was no
1 It is unclear whether the collateral/direct consequence analysis is still relevant after the
Supreme Court‟s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In
Commonwealth v. Abraham, the Pennsylvania Superior Court suggested that the
ineffective assistance of counsel analysis may have changed in light of Padilla. 996 A.2d
at 1092–95. The Abraham case is on appeal and directly presents the question of whether
Padilla forecloses the direct/collateral distinction in deciding ineffective assistance of
counsel claims related to the plea bargaining stage. Commonwealth v. Abraham, 9 A.3d
1133 (Pa. 2010).

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Pennsylvania case addressing Jones‟s specific claim and, thus, the result of his case was
not predetermined. Because the result of his claim was uncertain, Jones‟s failure to raise
the claim in state court undermined the purpose of the exhaustion requirement, which is
to allow the state courts to pass on an issue in the first instance. See Lines, 208 F.3d at
163 (“The fact that it is merely unlikely that further state process is available is therefore
insufficient to establish futility[.] [I]f we permitted such a prediction to constitute the
type of futility which would allow a federal court to excuse exhaustion, we would
undermine the exhaustion doctrine.”). Once Jones was aware of the factual predicate for
his ineffective assistance of counsel claim, he should have brought his claim in a PCRA
petition to give the state courts the chance to weigh in before federal adjudication of the
claim.
Finally, Jones‟s failure to file a PCRA petition cannot be excused by Martinez
because he failed to initiate any state collateral review proceeding at all. The rule in
Martinez is triggered either where the state courts did not appoint counsel in the initial-
review collateral proceeding for a claim of ineffective assistance at trial or where
appointed counsel in the initial-review collateral proceeding was ineffective. The
Supreme Court was adamant that its holding in Martinez created a “limited” and
“narrow” exception to the rule established in Coleman. 132 S. Ct. at 1315, 1319.
Because the Court spoke only of applying its exception to an “initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel[,]” we conclude
that the Martinez analysis is inapplicable where the criminal defendant did not initiate
any state collateral review proceeding whatsoever. Id. at 1318. Were it otherwise, the

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Martinez rule could potentially apply to any defendant who failed to petition for state
collateral review.
For the foregoing reasons, Jones has not demonstrated adequate cause for his
failure to raise his ineffective assistance of counsel claim in a timely PCRA petition. Nor
has he alleged or shown actual innocence to support a fundamental miscarriage of justice
argument. We hold, therefore, that Jones‟s ineffective assistance of counsel claim is
inexcusably procedurally defaulted. Because we agree with the District Court on that
dispositive question, we will not address the statute of limitations issue or the merits of
Jones‟s ineffective assistance of counsel claim, and we will affirm the judgment of the
District Court.

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