KHAMAL FOOKS v. J. LUTHER, Suрerintendent SCI Smithfield, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, and DISTRICT ATTORNEY OF ALLEGHENY COUNTY
Case No. 2:19-cv-01105
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Magistrate Judge Kezia O. L. Taylor
June 27, 2025
This case is before the Court1 pursuant to the Mandate issued by the Third Circuit Court of Appeals on April 17, 2024, which remanded this case for an evidentiary hearing on Petitioner‘s claim of ineffective assistance of counsel that was raised in his Petition for Writ of Habeas Corpus filed on October 11, 2019.2 See ECF No. 30. Pursuant to the Third Circuit‘s instructions, an evidentiary hearing was held on October 9, 2024. For the following reasons, the Court finds that Petitioner has not demonstrated that counsel was ineffective. The Petition will therefore be denied and a certificate of appeаlability will also be denied.
A. Relevant Procedural Background
In June 2017, Petitioner, through counsel, filed a petition pursuant to Pennsylvania‘s Post-Conviction Relief Act (“PCRA“) claiming that Attorney Thomassey was ineffective in that he had misadvised him about his eligibility for parole. Id. at 274-91. Petitioner claimed that Attorney Thomassey misadvised him that he would be eligible for parole in ten years, when in fact he would have to serve at least twenty, and that if he had known the truth then he would not have pleaded
We add that the certification PCRA counsel has attached to Fooks’ amended petition fails to advance Fooks’ claim that plea counsel advised him he would only serve 10 years’ imprisonment. In the certification, counsel only avers plea counsel would testify he would have had no reasonable basis for failing to seek withdrawal of the plea “if he knew that Mr. Fooks erroneously believed he would only have to serve half of his minimum sentence, and that he would not have pleaded guilty if he knew he had to serve all of his minimum sentence.” In addition, the lack of any challenge at the time of sentencing also undermines Fooks’ claim. In this regard, it is important to note that the trial judge explicitly specified that Fooks would be incarcerated for a minimum of 20 years, Fooks affirmatively indicated his understanding of his sentence when questioned by the trial judge, and neither Fooks nor plea counsel raised any question or objection.
Consequently, in light of the foregoing, we conclude there is no arguable merit to Fooks’ claim that counsel induced him to enter the negotiated guilty plea by promising him he would only have to serve 10 years of his 20-year minimum sentence. Accordingly, we affirm the PCRA court‘s decision that dismissed Fooks’ first PCRA petition without an evidentiary hearing.
Id. at 412 (emphasis within) (internal citations to the record omitted). Petitioner sought but was denied an allowance of аppeal from the Pennsylvania Supreme Court. Id. at 418-71.
Petitioner initiated these federal habeas proceedings in August 2019 and his Petition was filed on October 11, 2019. ECF No. 4. On May 13, 2021, United States Magistrate Judge Lisa Lenihan denied the Petition after finding that Petitioner had not established that the state court‘s decision was contrary to or an unreasonable application of clearly established federal law pursuant
Following remand, the Court appointed the Federal Public Defender for thе Western District of Pennsylvania for the limited purpose of representing Petitioner in the evidentiary hearing on his claim of ineffective assistance of counsel. ECF No. 31. After several continuances, the hearing was held on October 9, 2024. ECF Nos. 47-49. Following the hearing, the parties submitted Proposed Findings of Facts and Conclusions of Law. ECF Nos. 47, 52, 53, 56. The matter is now ripe for review.
B. Summary of Relevant Testimony
The following is a summary of the relevant testimony given at the evidentiary hearing, along with pertinent exhibits admitted into the record in connection with that testimony.
Petitioner testified that he was charged with criminal homicide and other crimes in Allegheny County in the summer of 2013 when he was 18-years old. ECF No. 48 at 10. While not his first court-appointed attorney, at some point Attorney Thomassey was appointed to represent him in connection with those charges. Id. According to Petitioner, Attorney Thomassey visited him in the Allegheny County Jail approximately five times prior to October 5, 2015, the day his case was set for trial. Id. at 11-12. On that day, Petitioner was prepared to proceed to trial,
Petitioner pled guilty to third-degree murder on October 5, 2015. When asked, he admitted that he stated on the record at his plea hearing that he understood that he would be sentenced for a minimum of twenty years and that no promises other than what had been stated on the record had been made to him. Id. at 25.
Petitioner testified that either “a couple” or “a few” days after pleading guilty, he learned from other inmates that he would not be eligible for parole until he served his 20-year minimum sentence. Id. at 26, 46. On October 9, 2015, four days after pleading guilty, he wrote to Attorney Thomassey. Id. at 26. The entirety of that letter, which was admitted into the record as Exhibit B, reads as follows:
Dear Patrick Thomassey
I would like for you to be withdrawn from my case and to withdraw my plea. I‘m pretty sure my mom already contacted you on this matter. Thank you for your services. God bless.
Khamal Fooks
Petitioner testified that he wrote another letter to Attorney Thomassey оn October 29, 2015. Id. at 27. The entirety of that letter, which was admitted into the record as Exhibit C, reads as follows:
Hey Pat how are you? I wrote you on the 9th regarding to a withdraw of my plea I took. I don‘t know when you got the letter because the mail here has been going out and coming in 2 and 3 weeks late. But I just wanted to let you know that I do want to withdraw my plea and take this case to trial. I don‘t feel you did what you were suppose to do for me. There are a lot of things that don‘t make sense and too many loop holes for me to do 20-40 years of my life in рrison. So if you can will you get back to me regarding this matter as soon as possible? Please and thank you.
God bless
(emphasis added). Petitioner testified that he also wrote a letter to Judge Mariani on October 9, 2015. Id. 28-29. The entirety of that letter, which was admitted into the record as Exhibit D, reads as follows:
To the Honorable Anthony M. Mariani
I am Khamal Fooks. I was just in your court room October 5th, 2015 and took a 20 to 40 plea agreement. Well I just wanted to withdraw my plea and fight my case. The reason I wanted to withdraw my plea is because I don‘t feel as though I should take a plea for something I didn‘t dо. And I wanted to remove Patrick Thomassey from my case because I don‘t feel like he fought for me as he should have he‘s basically incriminating me. So I would like for him to be withdrawn from my case and appointed new counsel.
I pray in the name of Jesus in this letter. I find grace from the Honorable Judge Anthony M. Mariani.
Respectfully Submitted
Khamal Fooks
May God bless you
(emphasis added). Petitioner testified that he wrote another letter to Judge Mariani on October 23, 2015. Id. at 29. The entirety of that letter, which was admitted into the record as Exhibit E, reads as follows.
To The Honorable Anthony M. Mariani
I am Khamal Fooks. I wrote you 2 weeks ago an 10/9/15. I wrote stating that I would like to withdraw my plea that I took 10/5/15 before your court room. I also wanted to withdraw Patrick Thomassey from my case because I don‘t think the plea I took was a reasonable one and I honestly didn‘t want to take it. Is there any way that you can appoint me counsel who will help me bring the truth to the light in my case? I wrote Thomassey on the 9th also asking him to withdraw from my case. I would highly appreciate it if I can be heard before a jury because I feel as though I‘m not guilty of any degree of murder. Please and thank you. God Bless.
Respectfully
Khamal Fooks
Thank you for your time.
(emphasis added). Finally, Petitioner testified that he wrote to the prosecutor in his сase, Assistant District Attorney Russel Broman, on November 5, 2015. Id. at 30. The entirety of that letter, admitted into the record as Exhibit F, reads as follows:
Dear Mr. Broman
I am Khamal Fooks writing in regards to a withdrawal of my guilty plea. I informed Honorable Judge Anthony M. Mariani on October 9th, 2015 and on October 23rd, 2015. I also informed my attorney Patrick J. Thomassey on October 9th, 2015 and on October 29th, 2015 stating I wanted to withdraw my plea and also withdraw him from my case. I‘m not sure if he put the motion in for the withdrawal of the guilty plea but he did put the motion in to withdraw appearance.
Pa.R.Crim.P. 720(B)(1) affords a defendant within 10 days after thе imposition of sentence the right to file a post-sentence motion which would include a motion to challenge or withdraw a plea of guilty; motions for judgment of acquittal or new trial; a motion for arrest of judgment; and any motion to reconsider or modify sentence. Knowing I informed Mariani and Thomassey both 4 days after trial and still no response to a withdrawal of my plea. So if you can can you see why I haven‘t been answered? Because I would like to take this case to trial. Please and thank you.Khamal Fooks
Petitioner concluded his testimony by stating that he was set on going to trial until he was told about the possibility of parole after serving half of his minimum sentence and he would not have pled guilty had he known that information was not correct. Id. at 43. On cross-examination, however, Petitioner admitted that he did not indicate in any of his letters that he was misled regarding when he would be eligible for parole and that the first time the issue was raised was in his counseled PCRA petition filed by Attorney Suzanne Swan in June 2017. Id. at 44-45.
Attorney Thomassey testified that he could not recall whether Petitioner‘s case was scheduled for trial or a guilty plea proceeding on October 5, 2015. Id. at 54-55. He also could not specifically recall conversations with Petitioner and his family on that day but stated that “the family can‘t communicate with the defendant when he‘s in custody.” Id. at 56. When asked whether he has ever made arrangements for a client who is in custody to meet with family at the courthouse, he stated that it is rare but believed that it has hаppened maybe “once or twice” in his career. Id. at 56-57, 58.
He testified that he did not specifically recall hearing from Petitioner or his family after Petitioner was sentenced on October 5, 2015, or recall the letters that Petitioner wrote thereafter, but he knew he withdrew from Petitioner‘s case “because he wanted to appeal.” Id. at 60-61.
On cross-examination, Attorney Thomassey testified that he absolutely did not recall advising Petitioner that he would only have to serve half of his minimum sentence before he was parole eligible, and he stated that is not the law in Pennsylvaniа and that he has never advised his clients as such. Id. at 62-63.
Petitioner‘s mother, Anica Mosby (“Mosby“), testified that she went to court with her son, Malik Norfleet, and Petitioner‘s friend, Jordan Ham, on October 5, 2015, to support Petitioner at his trial. Id. at 64-65. According to Mosby, they were waiting in the hallway when Attorney Thomassey came up and advised them that they needed to talk to Petitioner because “if he doesn‘t take the plea . . . he will be spending the rest of his life in prison.” Id. at 66. She explained that Attorney Thomassey told her that “if he takes the 20 to 40-year sentence, then he сould possibly be out in ten years[,]” but if not then “I‘ll be carrying my son out of jail in a cardboard box.” Id. She stated that he then arranged for them to talk to Petitioner, which she said occurred around a table in a conference room in the back of the courtroom. Id. at 66-67. She testified that Petitioner
Well, me and my son was crying and pleading to him, like, take the deal, Khamal. You‘ll be out in ten years. Just take the deal. Khamal still didn‘t want to take it. Like, he wanted to go to trial. That he felt like he didn‘t do anything wrong. But we‘re like, please, just take the deal. He said you‘re already guilty because you were there, so please take the deal. Then he took the deal.
Id. at 67-68. She testified that “after a while” Petitioner figured out that he would have to serve at least twenty years before he would become parole eligible. Id. at 68. She stated that eventually she was asked by one of Petitioner‘s lawyers to provide a statement of what Attorney Thomassey told them at the hearing. Id. at 69. Her statement, dated July 1, 2019, nearly four years рost Petitioner‘s guilty plea, was admitted as Exhibit Q and reads in its entirety as follows:
To whom it may concern:
Hello I am Anica Mosby Khamal Fooks mother on October, 5 2015 Patrick Thomassy stated to me that he couldn‘t help my son and if he doesn‘t take the plea deal he would spend the rest of his life in Prison. That if he takes the 20-40 plea deal he would be home in 10 years. I believe him and told Khamal to take it. Khamal didn‘t want to take the plea so I convinced him to take deal so that he could come home in 10 years.
Truly yours,
Anica Mosby
Mosby further testified that her other son, Petitioner‘s older brother, Malik, who was also present at court on October 5, 2015, but who passed away on September 21, 2021, provided a notarized statement that day. Id. at 70-71. That statement, also dated July 1, 2019, was admitted as Exhibit R, and reads in its entirety as follows:
To whom it may concern:
My name is Malik Norfleet I am Khamal Fooks older brother, On October 5, 2015 I was present when Patrick Thomassy told my mother to tell my brother
Khamal Fooks to take the 20-40 plea deal and that he would be out in 10 years or spend the rest of his life in Prison. Truly yours,
Malik Norfleet
When asked on cross-examination where the meeting with Petitioner and Attorney Thomassey occurred, Mosby said that it was in a conference room on the third floor of the courthouse and that Petitioner was already in there when they went in to speak to him. Id. at 73.
The next witness to testify at the hearing was Jordan Ham (“Ham“). Ham testified that she met Petitioner in 2012 when they attended the Academy Charter School together. Id. at 75. She stated that she continued to have contact with Petitioner when he was at the Allegheny County Jail after he was arrested in 2013 and that she attended his court hearings and was present in court on October 5, 2015, along with Petitiоner‘s mother and brother. Id. at 75-76. She testified to waiting in the hallway prior to the hearing that day when Attorney Thomassey came up to speak to them. Id. at 76-77. According to Ham, Attorney Thomassey told them that “he had something good going, it was a 20 to 40, but he was looking at 10. He could possibly talk to the judge.” Id. at 77. She explained that they got a chance to speak with Petitioner and Attorney Thomassey in a conference room behind the courtroom where Thomassey explained that the plea offer would be 20 to 40 and that “he could get the ten for [Petitioner] if he could talk to the judge.” Id. at 77-78. When asked what her understanding was of how much time Petitioner would have to serve, she stated “ten years.” Id. at 78. She testified that they were told Petitioner would “come home in a box” if he did not take the plea deal. Id. On cross-examination, Ham testified that it was her understanding that Attorney Thomassey “would be talking to a judge after he was assigned to get this in motion for ten years.” Id. at 79.
C. Relevant Legal Standards
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court recognized that a defendant‘s Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets at least a minimal standard of competence. Id. at 685-87. Under Strickland, it is a petitioner‘s burden to establish that his “counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]‘” Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at 690).
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that this same two-part Strickland standard governs claims of ineffective assistance of counsel arising out of the plea process. Id. at 57. The Court stated that where “a defendant is represented by counsel during the
D. Discussion
The Third Circuit‘s opinion on appeal states, “Fooks says his lawyer misadvised him about parole, causing him to take a plea deal. If he is right, he has a claim for ineffective assistance of counsel. Yet, neither the state nor the federal court gave him a chance to prove his claim. So we will remand for the court to hold an evidentiary hearing and give him that chance.” ECF No. 30-2 at 9. Petitioner has now had the chance to prove his claim, but the Court finds that he has not met his burden of demonstrating that counsel was ineffective.
Petitioner testified at the hearing that within a couple or a few days after pleading guilty, he was better informed by other inmates about parole eligibility and, at that time, understood that Attorney Thomassey had given him inaccurate information upon which he relied and tendered a plea. If that is true, Petitioner‘s own words in writing, and еvidence admitted in court, undermine his testimony and credibility.
The Court accepts that as of October 9, 2015, Petitioner regretted his plea. He said as much in writing to both Attorney Thomassey and Judge Mariani. He wrote to them both on that day requesting to withdraw his plea and requesting that Attorney Thomassey withdraw as counsel. He wrote to them both again two to three weeks later, as well as to Assistant District Attorney Broman,
The Court is appreciative of the pressurized circumstances surrounding Petitioner‘s decision to plead guilty or face trial and possibly spend the rest of his life in prison. He was twenty years old at the time he pled guilty, and his mother and friend testified that they were told he would “come home in a box” if he did not take the plea deal. Obviously, there were weighty consequences at stake. There is no doubt that the decision to plead guilty was a difficult one for
A separate Order denying the Petition, as well as a certificate of appealability, will be issued.
Dated: June 27, 2025.
/s/ Kezia O. L. Taylor
Kezia O. L. Taylor
United States Magistrate Judge
Cc: Counsel of record (via CM/ECF electronic mail)