Roy Moses v. District Attorney PhiladelphiaRoy Moses v. District Attorney Philadelphia
PRECEDENTIAL
Abigail T. Burton [ARGUED]
Bruce P. Merenstein
WELSH & RECKER
306 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant Roy Moses
Katherine E. Ernst
David Napiorski [ARGUED]
PHILADELPHIA COUNTY OFFICE OF DISTRICT ATTORNEY
3 S Penn Square
Counsel for Appellees District Attorney Philadelphia and Superintendent Phoenix SCI
OPINION OF THE COURT
AMBRO, Circuit Judge
When a prisoner has a substantial claim that his trial counsel was constitutionally deficient and his postconviction counsel‘s own deficiency causes him to default on that claim, equity allows us to hear it anyway. Truer still when the prisoner‘s postconviction counsel abandons him midstream, forcing him to carry on pro se.
After a Philadelphia jury convicted Roy Moses of violating state drug laws, he obtained a new lawyer and collaterally attacked his conviction in Pennsylvania state court. Before that proceeding concluded, however, his lawyer disappeared. Moses tried to press ahead without counsel, but the court ultimately dismissed his petition. He next moved to federal court, where he petitioned for a writ of habeas corpus, arguing that his trial lawyer violated his Sixth Amendment right to counsel by neglecting to make certain sentencing arguments. Though Moses failed to bring that claim in his state postconviction proceeding, he argued that his postconviction lawyer‘s ineffectiveness caused that failure, so his default was excused under Martinez v. Ryan, 566 U.S. 1 (2012). The District Court dismissed his petition. In its view, Moses could not invoke Martinez because he chose to forge ahead pro se in the state postconviction proceeding. His choice to do so, coupled with the failure to raise his trial-counsel ineffectiveness claim, had barred him from relying on Martinez.
Before us are three questions. First, does the Martinez framework apply when a prisoner proceeds pro se after his postconviction counsel abandons him? Second, if so, was Moses‘s procedural default excused under Martinez? And third, if it was, is Moses entitled to relief on the merits of his trial-counsel ineffectiveness claim? The answer to each question is yes, so we reverse the District Court‘s dismissal of Moses‘s petition and remand with instructions to grant a writ of habeas corpus limited to resentencing.
I. BACKGROUND
A. The 2015 Trial: Court of Common Pleas, Philadelphia County
Moses was convicted of various drug crimes in the Philadelphia Court of Common Pleas. To determine his sentence, the court consulted Pennsylvania‘s sentencing guidelines. Those guidelines weigh two main inputs. The first is the Offense Gravity Score, which gauges the severity of the defendant‘s offense.
| | Prior Record Score | AGG/MIT | |||||||
|---|---|---|---|---|---|---|---|---|---|
| 0 | 1 | 2 | 3 | 4 | 5 | RFEL | REVOC | ||
| 14 | 72-SL | 84-SL | 96-SL | 120-SL | 168-SL | 192-SL | 204-SL | SL | +/- 12 |
| 13 | 60-78 | 66-84 | 72-90 | 78-96 | 84-102 | 96-114 | 108-126 | 240 | +/- 12 |
| 12 | 48-66 | 54-72 | 60-78 | 66-84 | 72-90 | 84-102 | 96-114 | 120 | +/- 12 |
| 11 | 36-54 | 42-60 | 48-66 | 54-72 | 60-78 | 72-90 | 84-102 | 120 | +/- 12 |
There are eight Prior Record Score categories. The first six are numbered 0 through 5 and are based on points assessed for prior convictions. The last two are RFEL (short for Repeat Felony 1 and Felony 2 Offender Category) and REVOC (short for Repeat Violent Offender Category). Unlike the first six categories, these two are career-offender classifications and rest on more than points alone.
The trial court assigned Moses‘s drug conviction an Offense Gravity Score of 11. As for his Prior Record Score, the Commonwealth and Moses‘s trial counsel both agreed that he fell within the RFEL category. The trial court thought so too. It counted four points from Moses‘s 1998 Pennsylvania conviction for first-degree robbery and then two more from his 2003 federal conviction for being a felon in possession of a firearm under
For an Offense Gravity Score of 11 and a Prior Record Score of RFEL, the guidelines recommended a minimum sentence of between 84 and 102 months, plus or minus 12 months.
After hearing argument from counsel, the trial court issued Moses‘s sentence. It began by chastising him for committing another federal firearms offense while he had been out on bail. The trial court described Moses as a “career criminal” whose “appalling” behavior had resulted in
Moses challenged his conviction and sentence on direct appeal. The Pennsylvania Superior Court affirmed both, and the Pennsylvania Supreme Court denied his request for permission to appeal further.
B. The 2018 Postconviction Proceedings: Post Conviction Relief Act Court
Moses, without counsel, collaterally attacked his conviction under Pennsylvania‘s Post Conviction Relief Act,
C. The 2021 Habeas Petition: Eastern District of Pennsylvania
Moses next petitioned for a writ of habeas corpus in the U.S. District Court for the Eastern District of Pennsylvania. There, he asserted for the first time that his trial counsel was constitutionally deficient for failing to challenge his Prior Record Score. The Commonwealth argued that Moses had procedurally defaulted on that claim because he had never raised it before the PCRA court. Moses for his part invoked the Supreme Court‘s decision in Martinez v. Ryan, which holds that a postconviction counsel‘s constitutionally deficient assistance can excuse a prisoner‘s procedural default of his ineffective-assistance-of-trial-counsel claim. The Commonwealth responded that Martinez did not apply because Moses‘s underlying claim lacked merit, and thus his postconviction counsel‘s failure to raise it did not amount to ineffective assistance.
The District Court referred the case to a magistrate judge, who issued a report and recommendation concluding that Martinez did not apply. The magistrate judge reached that conclusion not because she thought, as the Commonwealth did, that Moses‘s underlying claim lacked merit, but because Moses failed to raise the claim himself in his pro se filing to the PCRA court. Over Moses‘s objections, the District Court adopted the magistrate judge‘s report and recommendation in full. It agreed that Moses could not invoke Martinez because he “failed to raise the [trial-counsel ineffectiveness] claims in his pro se objections to the [PCRA court‘s] Rule 907 notice.” App. 25. The District Court declined to issue a certificate of appealability and denied Moses‘s motion to amend the judgment.
We, however, granted Moses a certificate of appealability on two issues: whether Martinez should apply to excuse his procedural default and, if so, whether he is entitled to relief on the merits.
The District Court had jurisdiction over Moses‘s petition for a writ of habeas corpus under
III. DISCUSSION
We need to drill through three layers of habeas law: (1) does Martinez apply here at all? If so, (2) does it excuse the procedural default Moses claims his PCRA counsel caused and allow us to consider his trial-counsel ineffectiveness claim? And if it does, (3) is Moses entitled to relief?
A. Martinez Applies Even Though Moses Could Have Raised His Trial-Counsel Ineffectiveness Claim in His Pro Se Filing.
Before a state prisoner can seek federal habeas relief, he must exhaust his available state-court remedies,
Moses no doubt procedurally defaulted on his trial-court ineffectiveness claim by failing to raise it in his initial-review collateral proceeding. By the time he petitioned for federal habeas relief, he was time-barred from raising his claim in Pennsylvania state courts.1 See
Enter Martinez v. Ryan. There, the Supreme Court answered a question left open by its earlier decision in Coleman v. Thompson: “whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding.” Martinez, 566 U.S. at 9 (discussing 501 U.S. 722 (1991)). It concluded that the answer was yes, on “equitable” grounds, id. at 13, to “protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel,” id. at 9. If a habeas petitioner‘s trial counsel was unconstitutionally deficient, and his postconviction counsel was ineffective in failing to raise that claim at the first opportunity in postconviction proceedings, then no state court would ever hear the petitioner‘s ineffective-trial-counsel claim. Id. at 14. Two wrongs call for a right.
We have never addressed the effect of a pro se postconviction filing under Martinez. See Marsalis v. Pa. Dep‘t of Corr., 37 F.4th 885, 889 (3d Cir. 2022) (“[N]either the Supreme Court nor this Court has decided whether we should excuse a default when a state appoints habeas counsel but the prisoner then fires him and proceeds without a lawyer. That important question merits attention in an appropriate case, but not here.“). Both Moses and the Commonwealth agree that pro se postconviction filings do not affect a prisoner‘s entitlement to invoke Martinez and ask us to provide clarity. We agree with the parties and now hold that a prisoner who proceeds pro se in an initial-review collateral proceeding—at least when his lawyer abandons him—may invoke Martinez to excuse his procedural default.
This principle flows naturally from Martinez‘s core rule: that habeas petitioners must have at least one meaningful opportunity to present their “meritorious ineffective-assistance-of-[trial]-counsel claims.” Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 762 (3d Cir. 2018). The rule adopted by the District Court, by contrast, collides head-on with Martinez, which focuses the inquiry on whether counsel, not the prisoner, raised the trial-counsel ineffectiveness claim in the initial collateral proceeding. The prisoner, after all, is likely to be “unlearned in the law,” and so “may not comply with the [s]tate‘s procedural rules or may misapprehend the substantive details of federal constitutional law.” Martinez, 566 U.S. at 12. “To present a claim of ineffective assistance at trial ..., a prisoner likely needs an effective attorney.” Id.
The District Court should have allowed Moses to invoke Martinez. The Commonwealth put it best: we would advance neither justice nor Martinez‘s point by “creat[ing] a new exception for cases where petitioners proceeded pro se after their court-appointed post-conviction counsel [was] arguably ineffective and then abandoned them.” Appellees’ Br. 15 (italics omitted).
B. Moses‘s Procedural Default Was Excused Under Martinez.
We now know that Martinez can apply to excuse Moses‘s procedural default. So does it? Martinez imposes “three conditions” to excuse a procedural default. Cox, 757 F.3d at 119. First, the postconviction counsel‘s ineffective assistance (or the absence of counsel) must have caused the default. Id. Second, the petitioner must have defaulted in the “initial-review collateral proceeding“—that is, “the first collateral
There is no dispute that the default here occurred at the initial-review collateral proceeding, satisfying the second condition. That leaves the first and third. We conclude that both are satisfied—Moses‘s trial-counsel ineffectiveness claim is substantial, and his procedural default was caused by his postconviction counsel‘s ineffectiveness.
1. Moses‘s Trial-Counsel Ineffectiveness Claim Is Substantial.
Whether an ineffectivessness claim is “substantial” is “analogous to the substantiality requirement for a certificate of appealability“: can reasonable jurists debate whether trial counsel‘s performance was ineffective? Gaines v. Superintendent Benner Twp. SCI, 33 F.4th 705, 711 (3d Cir. 2022) (quoting Cox, 757 F.3d at 119). The well-trodden framework for ineffective assistance of counsel asks (1) whether the counsel‘s performance was deficient, in that it fell below an objective standard of reasonableness, and if so, (2) whether the petitioner suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Moses satisfies both prongs.
a. Moses‘s trial counsel‘s performance was deficient.
Moses‘s merits claim goes like this: his federal
We agree. Counsel‘s performance is deficient when he or she fails to cite existing case law casting doubt on a trial court‘s decision to apply a sentencing enhancement. See United States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007) (“Where defense counsel fails to object to an improper enhancement under the Sentencing Guidelines, counsel has rendered ineffective assistance.” (quoting Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004))). Just so here. Existing case law strongly suggested that Moses‘s
i. Section 922(g)(1) is not equivalent to Pennsylvania‘s felon-in-possession law.
In Pennsylvania, “[a]n out-of-state, federal or foreign conviction ... is scored as a conviction for the current equivalent Pennsylvania offense.”
In calculating Moses‘s Prior Record Score, the Pennsylvania probation office and the trial court treated his
Indeed, the Pennsylvania Supreme Court has said that
The Commonwealth resists the effect of Jemison. It points us instead to Commonwealth v. Keiper, an intermediate court decision predating Jemison that stated “a prior conviction is not an element of the offense under [§] 6105 but is merely a precondition to charging the accused with a violation of that section.” 887 A.2d 317, 318 (Pa. Super. Ct. 2005). The Commonwealth notes that several intermediate court decisions following Jemison have concluded that Keiper‘s characterization of § 6105(b) remains good law, at least for sentencing purposes, because Jemison was not itself a sentencing case. See, e.g., Commonwealth v. Patterson, 304 A.3d 782, 782 n.5 (Table) (Pa. Super. Ct. 2023) (“The Pennsylvania Supreme Court did not address sentencing in its decision or categorize the prior offense as an element of [§] 6105 for sentencing purposes and, therefore, as other panels of this Court have held, Jamison [sic] is not relevant to this sentencing issue.“).
We are bound to “follow state law as announced by the highest state court.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010) (internal quotation marks omitted). When a state supreme court has not squarely addressed an issue, we look to “all relevant sources of that state‘s law in order to isolate those factors that would inform its decision.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir. 1980). A considered state appellate decision is “a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” Sheridan, 609 F.3d at 254 (quoting Budget Rent-A-Car Sys., Inc. v. Chappell, 407 F.3d 166, 174 (3d Cir. 2005)). The ultimate inquiry, though, is what we believe the Pennsylvania Supreme Court would do, and so “state intermediate appellate court precedents can be considered erroneous in a sense in which a state‘s highest court decisions cannot.” 19 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4507 (2016).
The Commonwealth asks us to follow Keiper and characterize the predicate convictions in § 6105(b) as “precondition[s],” not elements. Appellees’ Br. 22. It asks us to do so despite the Pennsylvania Supreme Court‘s later holding that “there is no question that the relevant specific enumerated offense is an essential element of that crime.” Jemison, 98 A.3d at 1261. True, the Superior Court has since stated its view that Jemison is distinguishable because it did not involve sentencing. See Patterson, 304 A.3d at 782 n.5. But in law, as in life, sometimes the most straightforward interpretation is the right one. If
The Commonwealth‘s fallback argument is that even if the two statutes have dissimilar elements, Moses‘s guidelines calculation was still correct because both
ii. Moses‘s trial counsel was ineffective for failing to object to the characterization of § 922(g) as equivalent to § 6105.
Failing to raise obvious and potentially successful sentencing arguments is not a strategic choice for counsel—it is deficient performance. See United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000) (finding ineffective assistance of counsel when there was “simply no rational basis to believe that counsel‘s failure to argue [an] issue on appeal was a strategic choice“). Constitutionally effective assistance seldom requires counsel to make ingenious or pathbreaking arguments. It does, however, require counsel to “make reasonable investigations of the law” and to “cite favorable decisions.” Otero, 502 F.3d at 336. That includes arguments supported by “readily available” cases like those from the state‘s highest court. Jansen, 369 F.3d at 244. Because Moses‘s trial counsel did not cite favorable and readily available case law bearing on the calculation of Moses‘s sentencing guidelines range, his performance was deficient.
b. Moses was prejudiced by his trial counsel‘s deficient performance.
A defendant is prejudiced if, but for his counsel‘s deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. This is not a “stringent” test. Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). In the sentencing context, “[t]he prejudice prong is satisfied ‘when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing.‘” Otero, 502 F.3d at 337 (quoting United States v. Franks, 230 F.3d 811, 815 (5th Cir. 2000)).
i. Had trial counsel objected, there is a reasonable probability that Moses‘s Prior Record Score would have changed from RFEL to 5.
When a federal offense lacks a Pennsylvania equivalent, a sentencing court must
“In Pennsylvania, a person convicted of a felony may be sentenced to a term of imprisonment of no more than twenty years for an F1 [first-degree felony], ten years for an F2 [second-degree felony], and seven years for an F3 [third-degree felony].” Spenny, 128 A.3d at 254 (citing
Third-degree felony offenses do not count toward an RFEL designation and contribute only one point toward the Prior Record Score.
There is a reasonable probability that the trial court would have correctly reassessed the points for Moses‘s
ii. There is a reasonable probability that Moses would have received a lower sentence had his guidelines range been between 72 and 90 months.
The trial court, against a guidelines range of between 84 and 102 months, credited Moses one year of time for state bail that should have been revoked, then sentenced him to 72 to 144 months’ imprisonment. The one year of credit came off the bottom of the guidelines range (84 minus 12 equals 72), not the statutory maximum sentence (180 months minus 12 equals 168, not 144). That move strongly suggests that the trial court anchored its sentence at the bottom of the range, 84 months; deducted 12 months; arrived at 72 months as a minimum sentence; then doubled it to 144.
This is enough to show prejudice. “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant‘s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, 578 U.S. 189, 198 (2016). The record here reflects a reasonable probability that the incorrect guidelines range anchored the trial court‘s sentence.
The Commonwealth contends that even if the trial court had miscalculated Moses‘s guidelines range, he would not have suffered prejudice because the court “suggested” that “he would have gotten near the maximum.” Appellees’ Br. 26 (citing App. 117). But this case is a world away from the “exceedingly rare instances” in which we have held an error in the sentencing guidelines calculation did not prejudice a defendant. United States v. Hester, 910 F.3d 78, 91 (3d Cir. 2018). Even an “explicit statement that the district court would have imposed the same sentence under two different ranges” will not insulate a sentence from challenge in the mine-run of cases. United States v. Zabielski, 711 F.3d 381, 389 (3d Cir. 2013); see also id. at 387 (it is “the rare case” in which it would be “possible to discern from the record that the sentencing Guidelines range did not affect the actual sentence“); United States v. Raia, 993 F.3d 185, 196 (3d Cir. 2021) (“[A]n explicit statement that the same sentence would be imposed under a different Guidelines range is insufficient if that alternative sentence is not also a product of the entire [mandatory] sentencing process.“); United States v. Smalley, 517 F.3d 208, 212 (3d Cir. 2008) (district court‘s statement that “it would have given the same sentence ... if it had applied” the proper enhancement did not render error harmless when the court did not identify the alternative range or explain its deviation from that range).
In any event, given the strong indications that the trial court anchored Moses‘s penalty at the minimum end of the range, there is more than a reasonable probability that his sentence would have been different had the trial court correctly calculated the range. Because “any amount of actual jail time has Sixth Amendment significance,” Glover v. United States, 531 U.S. 198, 203 (2001), Moses has shown prejudice from his trial counsel‘s deficient performance.
2. Moses‘s PCRA Counsel Was Also Unconstitutionally Deficient for Failing to Bring the Trial-Counsel Ineffectiveness Claim.
Determining whether Moses‘s PCRA counsel was deficient for failing to raise the trial-counsel ineffectiveness claim detailed above “requires the same showing as the first prong of Strickland“—deficient performance.2 Richardson, 905 F.3d at 762. In this case, that is straightforward.
We have excused procedural default under Martinez when postconviction counsel missed a “substantial, obvious issue” related to sentencing. Id. at 763. As we have explained, Moses‘s trial-counsel ineffectiveness claim is just that kind of issue. We can “think of no strategic reason why” Moses‘s PCRA counsel would have forgone his ineffective-assistance-of-trial-counsel claim, and the Commonwealth offers no “viable explanation for such a glaring omission.” Bey v. Superintendent Greene SCI, 856 F.3d 230, 244 (3d Cir. 2017). Its only explanation rises and falls with its merits arguments that the Prior Record Score was properly calculated and that any error would not have affected Moses‘s sentence anyway. But given our conclusion that his sentencing-calculation
counsel‘s unconstitutionally ineffective assistance, we may excuse the default under Martinez.
C. Moses‘s Trial-Counsel Ineffectiveness Claim Succeeds on the Merits.
Because Moses has shown cause and prejudice to overcome his procedural default under Martinez, we next consider the merits of his underlying trial-counsel ineffectiveness claim. Given what we have already said, resolving the merits requires little additional discussion. For the same reason Moses‘s ineffective-assistance-of-counsel claim is substantial under Martinez, he is able to carry his burden of showing that his trial counsel‘s assistance was unconstitutionally ineffective: he had an obviously powerful argument, his lawyer did not make it, and he was prejudiced as a result. See supra Section III.B.1.
IV. CONCLUSION
When a prisoner procedurally defaults on a substantial trial-counsel ineffectiveness claim because his postconviction counsel errs, we may excuse that default “as an equitable matter.” Martinez, 566 U.S. at 14. We can do so because an “initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not [be] sufficient to ensure that” a prisoner deprived of his Sixth Amendment rights at trial receives proper consideration for his claim. Id. Excluding from this equitable rule prisoners whose lawyers abandon them is inconsistent with Martinez.
The District Court here should have applied Martinez to determine whether Moses‘s PCRA counsel‘s ineffectiveness caused him to default on a substantial trial-counsel ineffectiveness claim. We believe that the answer was yes and that Moses was deprived of his Sixth Amendment right to competent trial counsel. So we reverse the District Court‘s judgment and remand with instructions to grant Moses‘s petition for a writ of habeas corpus limited to resentencing.