2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-2013

Randall Shotts v. John Wetzel

Precedential or Non-Precedential: Precedential

Docket No. 11-3670

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 11-3670

________________

RANDALL SHOTTS, 

Appellant

v.

JOHN WETZEL, Secretary PA Doc;

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA;

THE DISTRICT ATTORNEY OF THE COUNTY OF 

WESTMORELAND

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-11-cv-00599)

District Judge: Honorable Robert C. Mitchell

________________

Argued June 10, 2013

Before: McKEE, Chief Judge, 

AMBRO, and NYGAARD, Circuit Judges
2

(Opinion filed July 31, 2013)

Diana Stavroulakis, Esquire (Argued)

262 Elm Court

Pittsburgh, PA 15237

Counsel for Appellant

James T. Lazar, Esquire (Argued)

John W. Peck, Esquire

Westmoreland County Office of District Attorney

2 North Main Street, Suite 206

Greensburg, PA 15601

Counsel for Appellees

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

In 2001, Randall Keith Shotts was sentenced to 301⁄2 to 

133 years’ imprisonment in Westmoreland County, 

Pennsylvania. Following a lengthy state collateral review 

process, during which Shotts was appointed five different 

counsel, he filed this petition for habeas corpus. It alleges

that his first attorney rendered ineffective assistance during 

plea negotiations, his guilty plea, and sentencing. The 

District Court dismissed Shotts’ claim as procedurally 

defaulted. 
3

We disagree. The Pennsylvania Superior Court’s 

determination that Shotts’ claim was defaulted because he 

failed to raise it when first represented by new counsel was 

what we term an exorbitant application of an otherwise 

independent and adequate state rule. As such, it cannot bar 

federal review of Shotts’ claim. 

However, on the merits Shotts comes up short, as he 

has not demonstrated ineffective assistance of counsel. We 

thus affirm the District Court’s judgment denying Shotts’ 

petition. 

I. Factual and Procedural History

A. Conviction and Sentencing

In 1999, the Westmoreland County District Attorney 

charged Shotts with offenses arising from a string of 

burglaries. While in jail following his arrest, Shotts offered 

to assist the District Attorney’s office in an investigation into 

corruption at the Westmoreland County prison. In exchange 

for his assistance, the District Attorney’s office helped secure 

Shotts’ release on bail. Once released, Shotts engaged in 

another spree of crimes, and additional charges were filed in

2000. Ultimately, he was charged under twelve separate 

informations for offenses including burglary, theft, criminal 

mischief, criminal conspiracy, receiving stolen property,

passing bad checks, criminal trespass, aggravated assault, 

simple assault, reckless endangerment of another person, and 

driving under the influence of alcohol. (Shotts was also 

charged with probation violations in three earlier cases, but 

no additional sentence was added for these violations.) 

Attorney Brian Aston represented Shotts in connection 

with all of the charges from the time of Shotts’ preliminary 

hearing through his sentencing. Because Shotts had made 
4

substantial confessions to the police, he and Aston agreed that 

the case should not go to trial, and Aston pursued a plea deal 

with the Commonwealth. He apparently did not request 

discovery of police records or copies of Shotts’ statements to 

the police. 

The Commonwealth offered Aston a plea deal that 

would have resulted in a sentence of ten to twenty years’

imprisonment. On hearing this, Judge Richard E. 

McCormick, Jr., who was presiding over the case, 

commented that the offered sentence seemed high, given 

Shotts’ assistance with the prison corruption investigation. 

Aston reported the offer and the Judge’s statement to Shotts. 

He rejected the plea deal and entered a general guilty plea 

without an agreement with the Commonwealth. In a plea 

colloquy before the Court, Shotts confirmed that his lawyer 

had explained all of the charges and all of the maximum 

sentences, that he was pleading without an agreement with 

the Commonwealth, and that the Court could impose “the 

various sentences upon these general pleas.” App. at 127–28. 

Sentencing was delayed to allow for a presentence 

investigation report and for Shotts to present evidence of his 

participation in the corruption investigation. As to the latter, 

Judge McCormick told the parties that he knew about Shotts’ 

assistance, but needed evidence to consider that as a factor for 

sentencing purposes. 

Despite hearing evidence of Shotts’ cooperation in the 

corruption investigation and notwithstanding his earlier 

statement that ten to twenty years’ imprisonment seemed 

high, Judge McCormick sentenced Shotts to an aggregate 

301⁄2 to 133 years’ imprisonment. This disparity resulted in 

part from the Judge’s limited information about Shotts’ 

participation in the corruption investigation at the time of his 

earlier statement and in part because the Judge meted out 

sentences for each information separately without calculating 
5

the aggregate sentence he was imposing. Having doled out 

sentences for each offense, he explained: “Frankly, it’s going 

to take a calculator for somebody to sit down now and 

calculate up the total amount of years consecutively

[imposed],” and reported that “the clerk will have it . . . at 

some point in time today.” App. at 199. Judge McCormick

then discussed the factors that justified the sentence. He 

described Shotts’ lengthy criminal history, his drug abuse, his 

participation in the prison investigation, and his substantial 

criminal activity after his release on bail. Shotts filed a 

motion for reconsideration,1 which the Court denied except to 

change one sentence from one to two years’ imprisonment to 

nine to eighteen months. This change had no effect on 

Shotts’ overall time of imprisonment because that sentence 

ran concurrent to other sentences imposed. 

At the resentencing hearing, Aston informed the Court 

that Shotts wished to file a direct appeal and make a claim of 

ineffective assistance of counsel against him. Aston was 

permitted to withdraw, and the Court informed Shotts that 

new counsel would be appointed. The Court appointed Leslie 

Uncapher. She never learned about the appointment, as she 

had withdrawn her name from availability for court 

appointment prior to being assigned to Shotts’ case. Shotts’ 

 

1

For reasons unexplained in the record, this reconsideration 

motion omitted three of Shotts’ twelve cases. Because those 

convictions were not raised in the resentencing motion, the 

time to file a state collateral challenge to those convictions 

expired earlier than the others, and Shotts’ challenges were 

dismissed by the Pennsylvania Superior Court as procedurally 

defaulted. Shotts does not contest before us the District 

Court’s holding that his challenge to the conviction and 

sentence in those cases was procedurally defaulted in state 

court, and thus federal review is unavailable. 
6

deadline to file a direct appeal expired on August 16, 2001, 

without an appeal being filed. In September 2001, the order 

appointing Uncapher was vacated and James Michael was 

appointed counsel. Although Michael was instructed to file a 

direct appeal, he took no action on the case. 

B. Shotts’ Collateral Challenge

In July 2002, Shotts filed a pro se petition under 

Pennsylvania’s Post Conviction Relief Act (“PCRA”). He 

claimed seventeen errors, including that both Aston and 

Michael rendered ineffective assistance of counsel. Due to a 

series of hearings and appeals on issues of timeliness, Shotts’

PCRA claim was not heard on the merits by a PCRA Court 

until 2007. During that time, three additional counsel—

Rachel Morocco, Sharon Wigle, and Patricia Elliot—were 

appointed to represent Shotts. Morocco and Elliot filed 

amended PCRA petitions on Shotts’ behalf. 

All of Shotts’ PCRA petitions raised a claim of 

ineffectiveness against Aston. None of the petitions included

a claim against Uncapher. Only Shotts, in his pro se petition, 

raised a claim against Michael. 

On April 18, 2007, Judge Rita Donovan Hathaway, 

presiding at the “PCRA Court,” held a hearing to consider 

Shotts’ ineffectiveness claim against Aston. He and Shotts 

both testified. Crediting Aston’s testimony and finding 

Shotts’ testimony not credible, Judge Hathaway found that 

Shotts’ plea was knowing, intelligent, and voluntary, and that 

Aston provided effective representation as counsel in his 

advice to Shotts before and during the plea and sentencing. 

She thus denied all PCRA relief.

On appeal to the Pennsylvania Superior Court, Shotts 

argued that the PCRA Court erred. Specifically, he claimed
7

that Aston failed (1) to obtain any discovery prior to the plea,

(2) to advise Shotts properly of the possible range of 

sentences, (3) by wrongly encouraging Shotts to enter a 

general guilty plea, and (4) not to object to the filing of 

separate criminal informations. 

The Superior Court affirmed the denial of relief, but on 

a different ground. It held that Shotts’ claim against Aston 

was defaulted. Under Commonwealth v. Hubbard, 372 A.2d 

687 (Pa. 1977), a petitioner waives an ineffectiveness claim if 

it is not raised by the first counsel who represents him after 

the allegedly ineffective counsel. We call this the “Hubbard

rule.” It was violated here because counsel following 

Aston—technically Uncapher, but in practical effect

Michael—did not raise any claim of Aston’s ineffectiveness. 

Even if subsequent counsel does not raise an 

effectiveness claim, under Hubbard a later counsel may still 

raise the claim by “layering” ineffectiveness claims against 

counsel. See Commonwealth v. Grant, 813 A.2d 726, 733

(Pa. 2002) (“In the aftermath of Hubbard, the only way to 

consider claims related to trial counsel’s ineffectiveness that 

were not raised on direct appeal by new counsel was to plead 

and prove the additional claim of appellate counsel’s 

ineffectiveness, i.e., a layered claim of ineffectiveness.”). 

Shotts could have gotten at the ineffectiveness of Aston by 

claiming that each successive attorney was ineffective for 

failing to challenge the prior attorney’s failure to raise the 

claim (i.e., Uncapher was ineffective for not raising Aston’s 

ineffectiveness, Michael was ineffective for not raising 

Uncapher’s ineffectiveness, etc.). See Commonwealth v. 

McGill, 832 A.2d 1014, 1021–22 (Pa. 2003) (explaining 

layered claims). The Superior Court held that Shotts did not 

preserve this claim. “[He] did not include a challenge to 

counsel’s ineffectiveness for failing to file either a direct 

appeal or a motion to withdraw his plea in any of his pro se or 
8

amended PCRA petitions.” App. at 79 (emphases in 

original). 

On that alternate and procedural basis, the Superior 

Court concluded that it was “constrained to affirm the order 

of the trial court dismissing [Shotts’] petition for PCRA 

relief,” and that “[his] only recourse appears to be in the 

federal court system.” Id. at 79–80. Shotts’ petition for 

allowance of appeal was denied by the Pennsylvania Supreme 

Court. 

C. Shotts’ Habeas Petition

Shotts filed a pro se habeas claim in federal court. He 

alleged constitutional violations that included ineffective 

assistance of his plea counsel—a deprivation of his Sixth 

Amendment right.

2

 Magistrate Judge Mitchell dismissed 

Shotts’ petition. He determined that Shotts’ claim of 

ineffectiveness was barred as procedurally defaulted due to 

the Hubbard rule, an independent and adequate state 

procedural rule. Shotts filed a timely notice of appeal and 

request for certificate of appealability. 

 

2

Shotts also alleged three additional errors: (1) failure of the 

trial court to give him proper credit for time served; (2) an 

illegal sentence for lack of jurisdiction; and (3) a violation of 

his Fifth Amendment right to due process. Judge Mitchell 

determined that these claims were never presented to a state 

court, and thus federal review was barred. 28 U.S.C. § 

2254(b)(1)(A). Shotts does not contest this default, and has 

not demonstrated cause or prejudice, or a miscarriage of 

justice, sufficient to excuse this default. Cristin v. Brennan, 

281 F.3d 404, 414 (3d Cir. 2002). We did not grant a 

certificate of appealability on these claims and do not 

consider them here. 
9

We granted a certificate of appealability on whether 

the Superior Court’s determination that Shotts waived his 

ineffective assistance of counsel claim against Aston was an

“exorbitant application” of the Hubbard rule, and, if we could 

consider the claim, whether Shotts was denied effective 

assistance of counsel based on allegations that Aston failed to 

conduct any pre-plea discovery and did not advise Shotts of 

the maximum amount of prison time he could receive. 

II. Procedural Default

The adequacy of a state procedural bar is a question of 

federal law, which we review de novo. Lee v. Kemna, 534 

U.S. 362, 375 (2002); Holloway v. Horn, 355 F.3d 707, 713 

(3d Cir. 2004). 

A. Permissibility of Federal Review

Generally, federal courts will not consider an issue 

raised in a habeas petition if it was rejected by a state court 

and “the decision of the state court rests on a state law ground 

that is independent of the federal question and adequate to 

support the judgment.” Kemna, 534 U.S. at 375 (alterations 

and emphasis omitted). We look to the face of the opinion to 

determine if the state court “clearly and expressly” states that 

it relied on a state ground separate from the federal issues. 

See Munchinski v. Wilson, 694 F.3d 308, 333 (3d Cir. 2012) 

(quoting Coleman v. Thompson, 501 U.S. 722, 733 (1991)). 

A state ground is “adequate” if it is “firmly established and 

regularly followed.” Walker v. Martin, ___ U.S. ___, 131 S. 

Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. 

53, 60–61 (2009)); Rolan v. Coleman, 680 F.3d 311, 317 (3d 

Cir. 2012). 

To repeat, the Pennsylvania Superior Court dismissed 

Shotts’ ineffectiveness claim because of the Hubbard rule. 
10

The parties agree that it is independent of the federal 

constitutional issue of ineffectiveness of counsel and, at the 

time it was applied, was firmly established and regularly 

followed by Pennsylvania courts. Trevino v. Thaler, ___ U.S. 

___, 133 S. Ct. 1911, 1917 (2013) (“[A] conviction that rests 

upon a defendant’s state law ‘procedural default’ (for 

example, the defendant’s failure to raise a claim of error at 

the time or in the place that state law requires) . . . normally 

rests upon an independent and adequate state ground.” 

(quotation omitted)). Hubbard was overturned by the 

Pennsylvania Supreme Court in Grant, 813 A.2d at 738, but 

Hubbard continued to apply to cases—like Shotts’—

“currently pending on collateral review.” Id. at 739 n.16. 

Under Grant, “as a general rule, a petitioner should wait to 

raise claims of ineffective assistance of trial counsel until 

collateral review.” Id. at 738. 

B. The Exorbitant Application Exception

The Supreme Court, however, recognized a narrow

exception to this procedural bar to federal review in Lee v. 

Kemna, 534 U.S. 362 (2002). In “exceptional cases . . . 

exorbitant application of a generally sound rule renders the 

state ground inadequate to stop consideration of a federal 

rule.” Id. at 376. In Lee, a criminal defendant moved for a 

delay of his trial when he discovered that his three alibi 

witnesses could not be found in the courthouse though they 

had been present earlier in the day. Id. at 369. His motion

failed, as the court cited its limited availability and the 

appearance that the witnesses had abandoned Lee. Id. at 370. 

Lee did not present any defense witnesses and was convicted. 

On collateral attack, the Missouri Court of Appeals affirmed 

the denial of his petition for relief. Id. at 372. It held that 

Lee’s challenge was defaulted because he did not comply 

with a state rule that motions for delay in trial must be made 

in writing and accompanied by an affidavit. Id. at 372–73. A 
11

federal district court and court of appeals held that this was an 

adequate and independent state law ground barring federal 

review. Id. at 374. The Supreme Court reversed, holding that 

adherence to this technical requirement was an exorbitant 

application of Missouri’s rule. Id. at 376. 

“Three considerations, in combination,” led the Court 

“to conclude that this case [fell] within the small category of 

cases in which [otherwise adequate] asserted state grounds 

are inadequate to block adjudication of a federal claim.” Id.

at 381. First, the procedural requirement was not invoked at 

Lee’s trial, and his perfect compliance with the rule would not 

have altered the outcome. Id. The trial court denied the 

continuance for scheduling reasons. Second, there was no 

case law that directed flawless compliance with the rule in the 

unique circumstances of his case. Id. at 382. Third, “and 

most important,” id., Lee substantially complied with the 

“essential requirements” of the rule, which were intended to 

provide information to the trial court and opposing party. Id. 

at 385. That Lee’s prior written motions related to these 

witnesses, and he had a clear trial strategy to rely on their 

alibi testimony, notified the trial court and opposing counsel 

of all that was needed to rule on the motion. 

Thus, “[e]ven if a state rule itself is adequate, the 

‘exorbitant application’ of the rule may in exceptional cases 

render the state ground inadequate to erect a procedural bar.” 

Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 657 (3d Cir. 

2011) (quoting Lee, 534 U.S. at 376). As the procedural 

default bar is grounded in a policy of comity and federalism

that gives deference to a state’s resolution of its criminal 

trials, if the state rule applied serves “no perceivable state 

interest,” it need not bar our review. Lee, 534 U.S. at 378.

The three considerations relied on by the Lee Court are 

not so much a test as they are “guideposts,” Cotto v. Herbert, 
12

331 F.3d 217, 240 (2d Cir. 2003), that are helpful in 

“evaluat[ing] the state interest in a procedural rule against the 

circumstances of a particular case.” Lee, 534 U.S. at 381; see 

also Monroe v. Kuhlman, 433 F.3d 236 (2d Cir. 2006) 

(deeming application of contemporaneous objection rule as 

exorbitant even though the first and third factors did not favor 

the petitioner). The Lee considerations are strongly tied to the 

facts of that case, where the alleged default occurred during a 

criminal trial. Clark v. Perez, 510 F.3d 382, 391 (2d Cir. 

2008) (noting that the Lee guideposts are “obviously rooted in 

the context of procedural defaults at trial, and are so 

formulated”). Here, where the default occurred when Shotts 

failed to raise a claim on appeal, we consider the Lee factors

as helpful guidance but also consider the overall relevant 

circumstances in our case. 

As did the Supreme Court in Lee, we believe that a 

number of exceptional considerations, in combination, lead us 

to conclude that the Superior Court’s application of the 

Hubbard rule in this case was exorbitant. Over the course of 

nine years and five appointed counsel, Shotts consistently 

raised his claim that Aston provided ineffective assistance of 

counsel. The PCRA Court considered Shotts’ claim on the 

merits and held an evidentiary hearing to consider Aston’s 

representation. Shotts had no opportunity to correct the 

procedural default spawned by Hubbard before the Superior 

Court sua sponte invoked it to dismiss his PCRA petition. 

Moreover, because Shotts’ claim reached the Superior Court 

on the merits, there is no state interest in applying the 

procedural rule at that point.

Shotts first raised his allegation that Aston provided 

ineffective assistance of counsel at his resentencing hearing. 

Indeed, Shotts’ desire to pursue this claim was the reason 

Aston was permitted to withdraw as counsel. The Court 

informed Shotts that new counsel would be appointed so that 
13

he could pursue this claim. However, Uncapher—the first 

new counsel appointed to Shotts—had removed her name 

from the court appointment list and was never informed about 

the assignment. It is not clear that Shotts even knew of

Uncapher’s appointment. By the time the Court vacated her 

appointment, Shotts’ time to file a direct appeal had expired. 

Michael—Shotts’ next attorney—appointed after his time to 

file a direct appeal had expired, also took no efforts on 

Shotts’ behalf despite his request, both before the Court and 

in letters he sent to Michael, to file an appeal alleging Aston’s 

ineffectiveness. 

Shotts then raised his claim challenging Aston’s 

representation in his pro se PCRA petition. At the moment 

he made this claim in 2002, it was technically defaulted under 

Hubbard because he had not challenged Aston’s 

representation when he was represented by Uncapher, or 

Uncapher’s representation when he was represented by 

Michael. This default went unmentioned by the 

Commonwealth or the PCRA Court until the Superior Court’s 

decision in 2010 when it ended Shotts’ petition for collateral 

relief because of this procedural requirement. 

The first factor the Lee Court considered was that the 

trial court ruled on the merits of Lee’s motion to postpone his 

trial, not the procedural bar later invoked by the state 

appellate court. In Shotts’ case, as in Lee, “perfect 

compliance with the state rule” would not have changed the 

outcome during the earlier state proceeding. Cotto, 331 F.3d 

at 240; see Lee, 534 U.S. at 381. The PCRA Court treated his

claim as properly raised, and it considered the merits of the 

ineffectiveness claim. It held an evidentiary hearing (where 

Aston and Shotts both testified), and issued an opinion and 

judgment. If Shotts had completely complied with the 

Hubbard rule, the PCRA Court would have taken the exact

course.
14

The Supreme Court also considered in Lee whether a 

published Missouri state court decision “direct[ed] flawless 

compliance” with the state rule at issue. Id. at 382. Beyond 

noting the “sudden [and] unanticipated” events that arose 

during Lee’s trial, the Court pointed out that the rule offered 

the chance to cure any defect, yet Lee was not given that 

opportunity. Id. “If either prosecutor or judge considered 

supplementation of Lee’s motion necessary, they likely would 

have alerted the defense at the appropriate time, and Lee 

would have had an opportunity to perfect his plea.” Id. at 

380. 

The same is true for Shotts. Under the Pennsylvania

Rules of Criminal Procedure, a “defective” PCRA petition 

can be amended. Pa. R. Crim. P. Rule 905. “This rule 

indicates the desire of this Court to provide PCRA petitioners 

with a legitimate opportunity to present their claims to the 

PCRA court in a manner sufficient to avoid dismissal due to a 

correctable defect in claim pleading or presentation.” 

Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003). 

Shotts could have reached Aston’s ineffectiveness by layering 

ineffectiveness claims against his later counsel who failed to 

raise the issue properly. Id. at 1024 (citing Rule 905 as 

applicable in cases “where the petitioner has failed to 

preserve, by pleading and/or presenting, a layered 

ineffectiveness claim in a manner sufficient to warrant merits 

review”). But no one alerted Shotts during the years in

litigation of this case—which included three PCRA counsel 

and two amended PCRA petitions—so he could perfect his 

ineffectiveness claim. When the Superior Court sua sponte

raised the procedural default, he did not have the opportunity 

to cure. 

Moreover, Shotts arguably attempted to raise a layered 

claim in his pro se petition. As noted, the Pennsylvania 

Superior Court stated that he “did not include a challenge to 
15

counsel’s ineffectiveness for failing to file either a direct 

appeal or a motion to withdraw his plea in any of his pro se or 

amended PCRA petitions.” App. at 79 (emphases in 

original). But Shotts’ listed Michael’s ineffectiveness in his 

pro se PCRA petition. See id. at 16 (“Atty James Michael 

has provided ineffective counsel since 2000 [sic], when he 

was appointed.”); id. at 17 (“James Michael – Did nothing for 

me, was completely useless as an attorney.”). At the time, the 

Pennsylvania Courts had not defined the requirements of a 

layered ineffectiveness claim. Commonwealth v. Ligons, 971 

A.2d 1125, 1139 (Pa. 2009) (“[O]ur Court in McGill

acknowledged that the manner of properly layering a claim of 

ineffective assistance of counsel had been unclear and 

clarified the procedure for presenting layered claims.”). If the 

Superior Court meant that Shotts’ pro se layered claim was 

not properly pled, we would deem that to be an exorbitant 

application of Hubbard’s layering requirement. It would 

“inject an Alice-in-Wonderland quality into the proceedings,” 

Lee, 534 U.S. at 383, to require a pro se litigant to know how 

properly to layer an ineffectiveness claim when the highest 

court in the Commonwealth was still struggling with the 

issue.

We recognize that the Hubbard rule—prior to being 

overturned—was “unbending,” Grant, 813 A.2d at 733, a 

factor that weighs against Shotts. But we also consider the 

unusual “circumstances presented,” Cotto, 331 F.3d at 240, 

that in this case include what the Commonwealth deems an 

“admittedly horrendous history.” Appellee Br. at 11. Having 

been sentenced to what could effectively be a lifetime of 

imprisonment, Shotts understood counsel would be appointed 

to pursue a direct appeal and claim against Aston. Neither 

Uncapher or Michael filed a direct appeal. The issue was 

raised again in Shotts’ PCRA petition. Years of delay 

followed, which included failures of multiple counsel to file 

timely motions and briefs. The Commonwealth has presented 
16

no case, nor has our research revealed one, where a 

Pennsylvania court relied on a default under Hubbard in 

similar circumstances. 

Turning to the third, and “most important,” Lee

consideration, 534 U.S. at 382, we discern no state interest 

served by applying the Hubbard rule in this case. The

Commonwealth argues that the rule serves an important state

interest in the finality of judgments and preservation of 

judicial resources. How state interests were promoted here 

evades us. The rule’s “essential requirement” that the claim 

be raised at the earliest possible time was met by Shotts’ 

request at resentencing and continued pursuit of this claim 

during the PCRA process. Id. at 385. His ineffectiveness 

claim—and desire to challenge the finality of his sentence on 

that ground—was clear from the time of his resentencing. It 

was litigated for years. Ultimately, the facts at issue were 

developed in the PCRA Court and presented to the Superior 

Court for appellate review. Dismissing at the Superior Court 

does not “promote judicial economy [or] the orderly 

administration of the appellate process.” Hubbard, 372 A.2d 

at 695 n.6 (quotation omitted). “Where it is inescapable that 

the defendant sought to invoke the substance of his federal 

right, the asserted state-law defect in form must be more 

evident than it is here.” Lee, 534 U.S. at 385 (quotation 

omitted). 

The combination of these factors “lead[s] us to 

question the applicability of this body” of state law. Whitley 

v. Ercole, 642 F.3d 278, 290 (2d Cir. 2011). We believe that 

the Superior Court’s application of the Hubbard rule in this 
17

case was exorbitant, and does not bar federal review of 

Shotts’ claimed ineffectiveness of plea counsel.

3

 

IV. Ineffectiveness of Counsel

We certified for appeal two aspects of Shotts’ 

ineffectiveness claim—(1) Aston’s alleged failure to conduct 

an investigation or discovery prior to Shotts’ guilty plea, and 

(2) his alleged failure to advise Shotts of the maximum 

sentence available. 

A. Standard of Review 

Decisions on the merits by a state court are afforded 

deference under the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. We will 

reverse only if the court’s determinations “(1) resulted in a 

decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law . . . 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 proceeding.” § 2254(d). If a state court does 

not review a claim on the merits, we review the claim de 

novo. Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012). 

 

3

Federal courts can also review procedurally defaulted claims 

if the petitioner can show “cause for the default and prejudice 

from a violation of federal law.” Trevino v. Thaler, ___ U.S. 

___, 133 S. Ct. 1911, 1917 (2013) (quotation omitted); 

Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1318–19 

(2012). Because of the path taken to resolve this case, we do 

not need to consider this other exception, for which we did 

not issue a certificate of appealability or have the benefit of 

briefing. 
18

The parties agree that we should apply AEDPA 

deference to Shotts’ allegation that Aston failed to inform him 

of the possible sentences because the PCRA Court considered 

this claim and issued a ruling on the merits. Appellant Br. at 

51; Appellee Br. at 16. The Commonwealth argues for 

similar deference in Shotts’ allegation that Aston was 

ineffective for failing to conduct discovery because the PCRA 

Court discussed the merits of this claim, though ultimately 

ruling it was waived. App. at 69 n.5. Deference is not owed 

in this case, however, because there was no decision on the 

merits. 

“For the purposes of Section 2254(d), a claim has 

been ‘adjudicated on the merits in State court proceedings’

when a state court has made a decision that 1) finally resolves 

the claim, and 2) resolves th[at] claim on the basis of its 

substance, rather than on a procedural, or other, ground.”

Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The 

PCRA Court’s decision did not finally resolve Shotts’ claim 

because the later Superior Court decision “stripped the PCRA 

court’s substantive determination . . . of preclusive effect.” 

Id. The appellate decision is procedure-based, and thus does 

not reach the merits. Id. With the PCRA Court’s ruling

stripped of preclusive value, “AEDPA deference is not due.” 

Id. We review Shotts’ claim de novo. In this case, however,

the standard of review makes little difference. Under either 

standard, Shotts has not demonstrated ineffective assistance 

of counsel. 

B. Claims Against Plea Counsel

To establish ineffective assistance of counsel, “a 

defendant must show both deficient performance by counsel 

and prejudice.” Knowles v. Mirzayance, 556 U.S. 111 

(2009); Strickland v. Washington, 466 U.S. 668 (1984). 

Performance is deficient if counsel’s efforts “fell below an 
19

objective standard of reasonableness” under “prevailing 

professional norms.” Strickland, 466 U.S. at 688. “A court 

considering a claim of ineffective assistance must apply a 

‘strong presumption’ that counsel’s representation was within 

the ‘wide range’ of reasonable professional assistance. The 

challenger’s burden is to show ‘that counsel made errors so 

serious that counsel was not functioning as the “counsel” 

guaranteed the defendant by the Sixth Amendment.’” 

Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 787 

(2011) (quoting Strickland, 466 U.S. at 687–89).

To demonstrate prejudice, “a defendant must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694; see Wright v. Van Patten, 552 

U.S. 120, 124 (2008). At the plea stage, prejudice “focuses 

on whether counsel’s constitutionally ineffective performance 

affected the outcome of the plea process.” Hill v. Lockhart, 

474 U.S. 52, 58 (1985). 

1. Alleged Failure to Obtain Discovery

Shotts alleges that Aston was ineffective for failing to 

conduct discovery—including obtaining police reports and 

records—prior to advising his client to plead guilty. A 

counsel’s “strategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually 

unchallengeable. . . . [C]ounsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes 

particular investigations unnecessary.” Strickland, 466 U.S. 

at 690–91. 

We cannot conclude that failing to obtain discovery in 

this context fell below an objective standard of 
20

reasonableness. Aston made a reasonable strategic choice in 

light of Shotts’ “pretty substantial confession” and his wish to 

avoid trial. App. at 235. Aston’s preliminary investigation 

governed his choice to pursue a plea agreement and then to 

try to obtain a favorable sentence following a general guilty 

plea. The facts here do not demonstrate deficient 

performance. 

As for prejudice, no allegation exists that evidence in 

these records would have aided plea negotiations or reduced 

the charges or sentence Shotts faced. His only allegation is 

that Aston would have been better prepared to advise him

during the plea and sentencing if Aston had obtained 

discovery. That fails to show “a reasonable probability 

that . . . the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. 

2. Alleged Failure to Advise About 

Sentencing

Shotts contends also that Aston was ineffective 

because he failed to inform Shotts of the maximum sentence 

he could receive. No one disputes that Aston told Shotts the 

maximum sentence available for each offense, but did not 

calculate the total possible sentence available if the Court’s 

sentence for each count ran consecutively. Although Aston 

never provided a total sentence that Shotts could face in the 

worst-case scenario, he told Shotts that “if everything runs 

consecutive this is going to get to be a very large number very 

quick.” App. at 248, 247, 264. Shotts knew that the Judge 

had discretion to impose various sentences and that he had no 

sentencing agreement with the Commonwealth when he pled

guilty. Aston and Shotts expected the sentence to be far 

lower than Shotts received, but Aston did not make any 

promises to Shotts about his sentence. 
21

In the context of a guilty plea, counsel is required to 

give a defendant information sufficient “to make a reasonably 

informed decision whether to accept a plea offer.” United 

States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). In effect, 

Shotts asks us to hold that his decision is only reasonably 

informed if counsel has provided an exact number or close 

estimate of the maximum sentencing exposure. We decline to 

do so. Aston informed Shotts of the maximum sentence for 

each offense and that the aggregate sentence could increase

quickly if the Judge chose to run those sentences 

consecutively—something Shotts understood the Judge had 

the discretion to do. Aston provided sufficient information 

for Shotts to make a reasonably informed decision to plead 

guilty. 

Even if Shotts could show deficient performance, he 

could not demonstrate prejudice. “In the context of pleas a 

defendant must show the outcome of the plea process would 

have been different with competent advice.” Lafler v. 

Cooper, ___ U.S.___, 132 S. Ct. 1376, 1384 (2012). If a 

defendant rejects a plea, he must show that “but for counsel’s 

deficient performance there is a reasonable probability he and 

the trial court would have accepted the guilty plea” and the 

resulting sentence would have been lower. Id. at 1391; see

United States v. Booth, 432 F.3d 542, 546–47 (3d Cir. 2005); 

Baker v. Barbo, 177 F.3d 149, 154–55 (3d Cir. 1999). 

Shotts asserts he was prejudiced because he refused 

the ten-to-twenty-year plea deal and entered a constitutionally 

invalid plea on the basis of Aston’s deficient performance. 

We disagree. Shotts believed that the plea offer was too high 

and that he would receive a lower sentence. In light of his 

prior convictions, as well as Judge McCormick’s statement 

that the plea offer of ten to twenty years seemed high, this 

may have been a reasonable expectation. Shotts knew the 

possibilities when he rejected the plea deal. We cannot now 
22

say there is a reasonable probability he would have taken the 

plea deal if Aston had acted as Shotts suggests.

4

* * * * *

In the exceptional circumstances of this case, the 

Pennsylvania Superior Court’s application of the Hubbard

rule was exorbitant and does not bar federal review. When 

we consider Shotts’ claim on the merits, however, we 

conclude that he has not demonstrated Aston’s

ineffectiveness. Thus we affirm the District Court’s judgment 

denying Shotts’ petition for habeas corpus.

 

4 We pause to note our concern with the sentencing judge’s 

actions in this case—both offering an opinion on the plea deal

and imposing a sentence without calculating the aggregate 

incarceration that resulted (unless the pre-sentence calculation 

could only result in a sentence of life imprisonment, not 

necessarily the case here). Nonetheless, given the posture of 

this case and the limitations embedded in habeas review of a 

state court judgment, these are not grounds for relief. Aston’s 

performance was not deficient because he failed to account 

for the sentencing judge’s unconventional behavior.