Ross, Jeffrey Nead v. Petsock George, Superintendent Scip Attorney General of the State of Pa

first week Janu Pane notes again May of 1986 he

ary 1986 and agreement. That

requested a severance not, however, coverage a was

request for meaning within information

request for 502(c). v. Lisle Kleinhans Sav

of section Trust, Sharing

ings Profit Cir.1987) (request for (7th benefit

622-24 not fall does within information

rather than inquired in 502(c)). Pane When

section why he to the reasons was

January 1986 as agreement was severance given job per that the reason

informed did Thus the district

formance. as denying Pane’s

err in 502(c) penalties.

sessment of section

VI. properly

Pane’s state law claims were preempted by they are

dismissed trial on his jury His demand

ERISA. properly stricken. His claims was

ERISA prop- participant to be a

ERISA claim rejected. His claim for assessment

erly 502(c) was also

penalties under section rejected. does not on

properly He judgment retaliation claim. The will, therefore, affirmed.

appealed from Nead,

ROSS, Jeffrey Appellant, George, Superintendent SCIP

PETSOCK

Attorney of Pa. General of State

No. 88-5528. Appeals, States Court of

United

Third Circuit.

Argued Jan. 28, 1989.

Decided Feb. MacIntyre, (argued) Harris-

Robert B. Pa., burg, appellant. ‍​​‌‌​‌‌‌​​‌​‌​​​​​​​‌​​​​​​​​‌‌​‌​‌​​‌‌​​‌​​​‌‌‌‍Lewis, Dist. B. Atty.,

Richard A. Todd Har- (argued), Deputy Atty., Dist. Narvol risburg, Pa., appellees.

640 GIBBONS, (Purdon 1982)(now Judge, seq. superseded). and et

Before Chief GREENBERG, Circuit SEITZ and appeal on his brief he characterizes the Judges. claims made ‍​​‌‌​‌‌‌​​‌​‌​​​​​​​‌​​​​​​​​‌‌​‌​‌​​‌‌​​‌​​​‌‌‌‍as follows: Specifically plea guilty he claimed his OF THE COURT OPINION unlawfully induced and that he

GREENBERG, Judge. Circuit right rep- was denied his constitutional to us on from This matter is before competent resentation counsel. The 3, 1988, denying peti an order of June claims, alleged support facts in Nead Ross for habeas cor Jeffrеy tion of pro in petition both se and the coun- 2254 on the pus relief under U.S.C. § thereto, selled amendment included trial ground he has failed to exhaust avail by jury counsel’s advice that trial plena Our review is able state remedies. penalty result in the death and trial coun- Fulcomer, 925, ry. Chaussard vigorously pursue pe- sel’s failure to — denied, U.S. -, (3d Cir.), cert. guilty plеa. tition to withdraw the It (1987). 98 L.Ed.2d 96 alleged that trial counsel did facts. Ross was indicted These are the spend petitioner sufficient time with Dauphin County, Pennsylva for murder in adequately explain be able to to the court Although originally pleaded not nia. plea the reasons for withdrawal of the 23,1980, trial, on the eve of guilty, on June adequate legal arguments pre- nor were attorney, represented by an while pared support in of the withdrawal re- guilty Dauphin in changed plea quest. Pleas. The fol County Court of Common respondents exception make no to this sought lowing day unsuccessfully characterization. judge plea. then con withdraw degree hearing to determine the ducted On June thе Common Pleas in guilt guilty found Ross of murder and judge opinion reading ger- rendered an in degree the second and sentenced him to life part mane as follows: appealed imprisonment. Ross to the Su petition Mr. Ross’s under the Post Con- preme Pennsylvania, af Court which Act, Pa.C.S.A. 9541 § reported opinion. his conviction in a firmed issues, seq., eight raises et sеven of The court indicated that Ross claimed his deal with the voluntariness of his which guilty voluntarily was not entered plea. finally this matter Since has been denying and the trial court erred in 9544(a), litigated, petition- 42 Pa.C.S.A. § Supreme to withdraw it. The eligible er is not for relief. Pa.C.S.A. held that the claim of involuntariness Court 9543(4). issue, remaining § was “refuted the record” and that the аlleged counsel’s ineffectiveness for not request to withdraw the after dismis motions, filing pre-trial absolutely friv- key “numerous sal of Commonwealth wit olous the record includes an Om- plea” proper nesses in reliance on the nibus Pre-Trial Motion filed behalf of judgment ly denied. Thus the was af petitioner. Ross, 498 Pa. firmed. Commonwealth (1982).1 512, 447 A.2d 943 petition judge denied the without hearing. Ross did not from the subsequently filed a denying petition, order his state an omis- Dauphin County Court of CommonPleas of “faulty sion he attributes to advice from under the ” Act, lawyers.’ ‘jail house 42 Pa.Cons.Stat.Ann. According respondents, While we do not have the Ross also con- to withdraw the Court, Supreme Supreme tended in trial court Court that the we need briefs filed in the post-sentencing failed to appellate rights, and inform him of his question as to what was further that his was inef- Supreme as the claim raised in the Court failing post-trial ‍​​‌‌​‌‌‌​​‌​‌​​​​​​​‌​​​​​​​​‌‌​‌​‌​​‌‌​​‌​​​‌‌‌‍fective for raise claims on clearly been exhausted was we find not to have regarding involuntary motions nature of his not raised. guilty plea judge’s of his motion denial counsеl, claim ineffective assistance of filed the May On clearly was not 2254in the United States this claim 28 U.S.C. District of for the Middle same to the state court context District appeal. citations.) petition. (Omitting which has led to PCHA magistrate ato petition was referred signed judge June the district On indi- report and recommendation inwho adopting approving report an order cated that: magistrate denying petition. of the petition present petitioner filed the followed. setting corpus forth of habeas for writ govern principles Certain basic (1) following grounds relief: His for the appeal. prisoner seeking fed this A state of was ‘obtained conviction must the eral habeas relief hаve exhausted voluntarily made guilty which was not courts. remedies available state nature understanding with 1208, Cunningham, v. 826 F.2d Burkett (2) ‘Trial counsel was consequences'; and (3d 1987). compli 1218 To Cir demonstrate A, paras. B. pp. Id. ineffective.’ requirements, with exhaustion ance the ground, latter In connection with the applicant must show the feder habeas that entering plea he that the was states has al claim asserts the federal court Edrington for ‘covering’ for one that fairly courts. presented been the state plea, reason, the al- wanted withdraw 71, (3d 685 F.2d Santana v. noted, he though as hereinafter never Cir.1982), 1115, denied, 459 cert. U.S. wanting counsel this reason for told trial 750, (1983). 74 L.Ed.2d It is the to withdraw enough petitioner to that he show peti- that the magistrate recommended presented has the facts on which the feder dismissed, he concluded that: tion be as is the Id. al claim based to state court. case, present petitioner the indi- In the Rather, argument the raised in the federal that, peti- to his PCHA cates equivalent must substantial of court be the tion, by jailhouse law- he ‘was advised presented to the state courts. Id. at that PCHA, yers appeal his as it was not to theory legal the facts 73-74. Both the Therefore, petition- not meritorious.’ supporting claim must been a federal his clearly has not exhausted state er the state submitted to court. O’Halloran Furthermore, he remedies. states Cir.1987). Ryan, 835 F.2d v. in his ‘[petitioner argued PCHA that Thus, analysis present the same method was ineffec- Petition that have been ed to the district court must tive, although specifically ar- did not state to the courts. Chaus made available ineffective for gue that counsel was Fulcomer, 816 F.2d at 928. sard is, petition],’ stated this that reason [in deny his Ross does not that basis bringing to court’s attention by not challenging the for now effectiveness ‘covering’ Edring- for petitioner was never men attorney, his ton, petitioner a fact about which never was trial court that Ross tioned his He states that he counsel. informed never Edrington incompe “covering” and was for his this because told counsel about finding him questioning tent naming Edring- he was ambivalent about out, Penn never this contend, however, seems to ton. He courts, on sylvania either his direct vigorously questioned him if counsel Conviction in his or the reason he wanted withdraw about un Act. Instead asserts ‘covering real about plea, longer has a law he no Pennsylvania der Edrington’ may have been disclosed forum in state courts ground is Although this by petitioner. advanced,2 absurd, nevertheless, present claim as to appears have the court did not Ordinarily necessary it that the district it is to examine briefs Thus, understood are not to be state briefs. we in the state court to determine what submitted approving procedure Never- fairly presented followed. as theless, there. Brown issues were dispute оver as there Cuyler, inasmuch Here “waived” in the courts. Act regard Ross asserts that was In this 9544(b). under the Post Convic- Post Con- 47 But adoption of § (Act 47) April tion Relief Act waivers are not absolute. Relief Act 9543(a)(3)(h) destroyed permits allega- his state remedies. Act 47 § sec- previ- codified at the same if not 47 has been tions of error to be considered waived, prior ously litigated, if if the al- tions as the even seq. et leged Act. 42 Pa.Cons.Stat.Ann. has resulted in the error § (Purdon Supp.). Under Act 47 June an “innocent individual.” Inasmuch as 9544(a) previously is deemed an issue by pleading guilty he Ross claims that raised in the trial litigated if it has been covering Edrington comes ruled on the merits and the Further, court which Act 47 within that section. appeal. Ross claims that petitioner did not 9543(a)(3)(iii)provides allegation that an challenging him from this section bars litigated, though previously error not because he failed waived, may if it “does not be considered peti- denying the order appeal from procedural constitute a State default bar- Hearing Act tion under the ring corpus relief.” This Federal habeas 9543(3) Act 47 under and because Pennsylvania subsection demonstrates litigated allega- previously cannot raise a preference post attacks has a He also contends that under tion of error. litigated in being initially its courts rather 9544(b) he cannot raise the issue Act 47 § the United States district courts and than of counsel because of ineffective assistance policy disregard in furtherance of that will direct have raised on his he could procedural a fatal what would otherwise be petition under the Post or on his Conviction default.5 In these circumstances we con- by doing Hearing Act and not so has state courts clude that waived it.3 will entertain Ross’s contention that his incompetent by counsel was ‍​​‌‌​‌‌‌​​‌​‌​​​​​​​‌​​​​​​​​‌‌​‌​‌​​‌‌​​‌​​​‌‌‌‍reason of position difficulty with Ross’s is that to discover Ross his failure was cover- he did not raise the ineffective inasmuch as ing Edrington by pleading guilty. argument in the state courts on attorney Thus, insofar as federal habeas relief is the claim has not the basis now advanced concerned, since the issue has not been litigated” by reason of “previously been courts, presented previously to the state having rejected in the trial court. been Ross has not exhausted his state remedies. previously the claim deemed Nor can Accordingly, judge correctly the district de- having “raised litigated of been petition.6 nied Ross’s proceeding collaterally decided in a at- tacking the conviction or sentence.” See however, possible, may It is that Ross 9544(a)(3).4 Act 47 § his state remedies as to the have exhausted however, regard acknowledge, since

We voluntariness representation point out that this claim of ineffective we Su- specifically preme in the Post Con- Court said that the claim could have been advanced Hearing proceeding of involuntariness was refuted Act it has been was not 5. It also convinces us that an ineffective assist- fact the claim now advanced presented no remand is re- ance of claim if advanced on one basis in the state courts previ- quirеd. does not mean that such claim has been ously litigated if on another. advanced suggest does not otherwise 3. He does qualify applied Post Convic- to assert a claim under the 6. We have the rule that a federal habeas having the rest petitioner, Relief Act. we will not detail tion the burden to show he is relief, of the Act. must show that he met еntitled to procedural requisites,” Cuyler, Brown v. "the prior post which include the burden of show- F.2d at consider that the 4. Ross seems to ing bar that state law would consideration for proceeding was a trial court conviction state 9544(a)(1). relief. Santana v. 685 F.2d at proceeding think, however, We federal Act 47 § under Pennsyl- our conclusion as to 75. But we reach court" means that "trial vania law without burden. original court at the trial. presented point in on this a different issue since If the of involuntariness record. claim ineffective assistance before the dis- fairly present now raised context did in trict court than his state court. then state Supreme ed Court reme court, however, discharged distriсt never purposes exhausted for dies will be deemed duty to re- its to review state record of O’Halloran 28 U.S.C. See the federal solve whether claim Ross also raised a Ryan, 835 F.2d fairly presented to the state courts. in Post Convic issue ineffective claim assistance proceeding, though on tion therefore A review should be remanded. defini slim record before us we cannot moreover, record, indicates that the issue there tively determine whether fairly may presented well in the context now ad state courts a claim substan- with that was definitively Nor can we determine vanced. tially similar to his federal one. consequence failure to Ross’s from the denial relief hаs held that district court Beaty presentation determining Act. v. Pat a fair issue must Conviction trial, ton, appellate pretrial, review the 700 F.2d briefs and documents submitted to the think, however, inasmuch We as decision state courts when state court his state reme- have exhausted does address claim advanced. respect dies to the voluntariness Cuyler, Brown v. allowed, option, at his he should be Cir.1982); Connor, Picard v. 404 U.S. see claim on the ineffective- delete his based 270, 273-74, 92 S.Ct. 30 L.Ed.2d solely ness proceed of counsel and Fulcomer, (1970); v. Chaussard plea of the issue in the dis- Cir.1987). Nothing F.2d in the Ryan, trict court. See O’Halloran gives any record indica- before this Redman, 508-09; F.2d at Gonce v. for, re- tion that the district court asked course, F.2d Of in ceived, or the doc- reviewed relevant state the that event he will still have burden to this reason the uments. For prerequi- that he met the demonstrate should be remanded to district court for relief, including sites for the exhaustion of of whether Ross has ex- reconsideration remedies, Ryan, 835 F.2d at O’Halloran v. remedies for his ineffeсtive hausted state respondents may any raise and assistance of counsel claim. procedural they and substantive issues of the majority, disapproving The while may appropriate deem bar relief. the state district court’s failure review order of June 1988 will be af- record, argu- excuses it. Its nonetheless firmed and matter will be remandеd to court-appoint- since Ross’s ment runs that proceedings court for further district appeal “deny” that counsel did not on ed opinion. with this consistent were dif- the ineffective assistance claims ferent, dispute ostensibly ex- and that GIBBONS, dissenting: Judge, Chief point, no exists to re- ists on the petitioned for federal habeas re- Ross proceedings mand. This misconstrues the grounds: view his counsel ren- on two that Counsel for Ross did law. dered him ineffective assistance “deny” presentation issue because the fair his guilty plea voluntarily. not enter did clearly joined in the either was never majority properly Instead, remands case to argument. both or oral briefs at to delete first claim to en- arguments allow Ross ex- their almost sides addressed able second issue since it clusively consequences review of recent appears Pennsylvania’s that Ross exhausted state reme- changes post in concerning guilty plea. major- important, dies his dis- relief More statutes. however, errs, declining ity duty to remand to examine the state triсt court’s of the ineffective not turn on the behavior reconsideration assist- record does presentation holding parties fair issue is ance counsel claim. Its assumes once the Rather, bears the district court did not exhaust state raised. Ross remedies there- Ross’s should therefore be re- duty independently, must to the district for reconsider- it manded court satisfy that the claims before fore itself involuntary guilty ation his of both already courts. had been aired state his claim and of ineffective assistance of (district Brown, F.2d at 158 court light complete of the counsel claim state inquiry to conduct further ascertain must Whether Ross’s characterization record. requirement has been whether exhaustion argued of his ineffective counsel claim as when silent on issue satisfied state actually in state court matches what the petition). subsequently in a habeas raised state indicates a matter record should be are not Since state court documents left for the district court. Whatever the record, part this Court determination, establishing outcome of that its own review. The record that conduct loophole to the mandate for further in- possibility does exist raises the troubling quiry precedent both in sets fairly present his ineffective assistance did general this case. claim. In his of counsel Conviction consequence, I dissent. petition, Ross claimed rеndered ineffective assistance failing vigorously Ross’s plea. At guilty least ac-

to withdraw his

cording petition, pur- to his ‍​​‌‌​‌‌‌​​‌​‌​​​​​​​‌​​​​​​​​‌‌​‌​‌​​‌‌​​‌​​​‌‌‌‍habeas post-convictionrelief

sued state contend- adequately

ing that counsel “didn’t question why him as to he wished to [with- ROCKS, Salvatore, Joseph M. A. Frank (Ross guilty plea].” Peti- draw Habeas Christopher Wogan, Krajew R. L. Joan 5). why tion Had counsel discovered Kelly, Appellants, ski L. and Jоhn plea, nec- Ross wanted withdraw follows, essary implication pressed withdrawal PHILADELPHIA, CITY W. Wilson OF vigor. To with more this chal- Goode, Jones, Jr., Minority Curtis Busi lenge petition ostensibly Ross’s habeas Council, Benjamin Enterprise ness F. fact, only one added was the rea- Dowd-Burton, Angela Appel Ellis why. Specifically, son the habeas lees. states that “wanted withdraw No. 88-1616. ‘сovering’ for one Edrington.” Carlos Appeals, States Court of United Third Circuit. Nothing about additional fact changes similarity the substantial between Argued Jan. claim, two versions of still less Decided March changes legal analysis that a court apply challenge. See Rose v. 509, 515-17, Lundy, 455 U.S. 102 S.Ct. 1201-03, (1982); L.Ed.2d 379 Pi Connor, 277-78, at

card v. 404 U.S. 513-14; Santana (3d Cir.1982).

F.2d Absent an as why

sumption that the reason Ross wanted guilty plea would have

to withdraw his provide effec

induced his counsel to more assistance, his claim would make

tive purposes presenta For the of fair

sense.

tion, Ross’s enumeration motive

covering Edrington has no relevance.

Case Details

Case Name: Ross, Jeffrey Nead v. Petsock George, Superintendent Scip Attorney General of the State of Pa

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 28, 1989

Citation: 868 F.2d 639

Docket Number: 88-5528

Court Abbreviation: 3rd Cir.