NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2775

____________

MICHAEL MCLAUGHLIN

Appellant,

 

v.

DISTRICT ATTORNEY PHILADELPHIA; ATTORNEY GENERAL 

PENNSYLVANIA; PENNSYLVANIA BOARD OF PROBATION AND PAROLE

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-16-cv-03724)

District Judge: Honorable Nitza I. Quiñones Alejandro

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 19, 2023

____________

Before: CHAGARES, Chief Judge, PHIPPS and CHUNG, Circuit Judges

(Filed October 24, 2023)

____________

OPINION

____________

CHUNG, Circuit Judge.

Michael McLaughlin is a former Pennsylvania state prisoner who seeks federal 

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 

not constitute binding precedent.
2

habeas corpus relief.

1

 He claims that the trial court violated his Sixth Amendment rights

by allowing him to forgo counsel without a proper waiver-of-counsel colloquy. Because 

McLaughlin’s claim is procedurally defaulted, we will affirm the District Court’s order 

denying his petition.

I. BACKGROUND2

In 2005, the District Attorney of Philadelphia charged McLaughlin with stalking

his ex-girlfriend and prosecuted him in Pennsylvania state court. Defense counsel was 

appointed for McLaughlin, who, early in the progression of the case, began asking to 

waive his appointed counsel and represent himself. At an August 1, 2006 hearing, trial 

court Judge Amanda Cooperman granted McLaughlin’s request and allowed McLaughlin 

to represent himself. No transcript of the hearing exists, however, and it remains unclear 

to what extent Judge Cooperman conducted a waiver-of-counsel colloquy. In any case, 

the record is clear that McLaughlin began representing himself after the August 2006 

hearing. 

Several months after Judge Cooperman allowed McLaughlin to represent himself, 

she recused herself from the case due to McLaughlin’s repeated disregard of her 

1 McLaughlin filed his federal habeas petition on July 7, 2016, while he was still in 

custody. He was released on June 17, 2018. Even though McLaughlin has now been 

released, his petition meets the “in custody” requirement of 28 U.S.C. § 2254(a), because 

he was in custody when he filed it. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). We 

also agree with the District Court that McLaughlin’s petition is not moot, because he 

suffers “collateral consequences” from his felony conviction. Id. at 7–8.

2 Because we write for the parties, we recite only facts pertinent to our decision.
3

instructions to stop contacting her staff seeking case-related advice. McLaughlin’s case 

was reassigned to Judge Willis F. Berry. McLaughlin first appeared before Judge Berry 

at a hearing on February 26, 2007. The hearing transcript shows that McLaughlin 

appeared “Pro Se” and as “1st Chair;” McLaughlin’s “2nd Chair” was his formerlyassigned attorney, Steven Laver. Joint Appendix (“JA”) 59. Judge Berry confirmed that 

McLaughlin wanted to proceed pro se and asked McLaughlin a series of questions. 

Judge Berry also said, “I understand you spoke to Judge Cooperman, and that judge put 

on record the same kinds of questions I’m asking you, and you answered the questions.”3 

Id. McLaughlin answered, “Yes,” confirming that Judge Cooperman had conducted 

some type of colloquy. Id. After confirming once more that McLaughlin wanted to 

represent himself, Judge Berry said, “All right,” and “Mr. Laver here is going to be 

backup.” Id.

McLaughlin went to trial in August and September 2007. He appeared pro se, 

with a new attorney, Kevin Mincey, as his standby counsel. During the trial, Judge Berry 

held McLaughlin in contempt multiple times. And while the jury was deliberating, 

McLaughlin fled. The jury delivered its verdict while McLaughlin was in absentia and 

found him guilty. 

McLaughlin had a post-trial contempt hearing on September 18, 2007. At the 

3 Neither party claims that this colloquy satisfied the requirements of the Sixth 

Amendment.
4

hearing, he told Judge Berry that he no longer felt “competent or capable” of representing 

himself, and Judge Berry appointed attorney Mincey to serve as McLaughlin’s counsel. 

Id. at 232–33. When McLaughlin had his sentencing hearing six weeks later, on October 

30, 2007, attorney Mincey represented him. Attorney Mincey argued two motions on 

McLaughlin’s behalf. Neither of those motions challenged the adequacy of the waiverof-counsel colloquy. Judge Berry sentenced McLaughlin to two to four years in prison, 

followed by three years’ probation. At the end of the sentencing hearing,—and for the 

first time in fifteen months—McLaughlin claimed, “I was never properly colloquied, 

Your Honor. If you would have told me on the record I would have had to be by the 

book all the time—I know I made mistakes.” Id. at 257.

4

 McLaughlin raised no post4

It seems McLaughlin was claiming that an incomplete colloquy resulted in his 

repeated misconduct at trial. The record shows, however, that the trial-level judges 

frequently advised McLaughlin of the rules and that McLaughlin repeatedly ignored 

them—beginning with his misconduct that led Judge Cooperman to recuse, continuing 

through trial, and at the end of trial, when he absconded.

In any event, when a Pennsylvania court later reviewed McLaughlin’s conviction 

as part of his challenge under Pennsylvania’s Post Conviction Relief Act (PCRA), it

considered evidence of Mclaughlin’s understanding of the elements of a waiver-ofcounsel colloquy under Pennsylvania law, which largely track federal constitutional 

requirements. The reviewing court found that McLaughlin “was familiar” with and 

“could reference” all elements of Pennsylvania’s colloquy. JA 334. And although 

McLaughlin testified to the reviewing court that he did not know the answers to all 

questions in the colloquy when he waived counsel, the court rejected that testimony as 

not credible. For example, against McLaughlin’s after-the-fact testimony that he did not 

understand the charges against him or the sentence he faced, the court noted that he 

understood the charges well enough to identify correct “issues and ... theories of law” 

while representing himself, and that he had faced offenses with even greater penalties in 

the past. Supplemental Appendix 136.
5

sentence motions regarding the adequacy of the colloquy (or any other issue), whether 

through counsel or on his own.

McLaughlin challenged his conviction in Pennsylvania state courts—first on direct 

appeal, and then in a collateral attack under PCRA. In both McLaughlin’s direct appeal 

and PCRA proceedings, he argued that the trial court did not conduct a proper waiver-ofcounsel colloquy. When the Superior Court of Pennsylvania considered his claim for the 

first time on his direct appeal, it reviewed the record and concluded that McLaughlin 

forfeited the issue because he “failed to raise this issue before the trial court at any point 

prior to the filing of his appeal” or in “a post-sentence motion,” as required under 

Pennsylvania Rule of Appellate Procedure 302(a).5Id. at 276. When the Superior Court 

later considered McLaughlin’s PCRA petition, it decided again that McLaughlin forfeited 

the issue. The Supreme Court of Pennsylvania denied McLaughlin’s petitions for 

allowance of appeal in both cases.

McLaughlin then filed this federal habeas petition. In addition to claims not at 

5 Rule 302(a) and Pennsylvania state courts refers to issues not raised in the trial 

court as “waived.” See 210 Pa. Code § 302(a). In our case law applying federal 

appellate procedure, however, we have followed the Supreme Court’s distinction between 

waiver, which is “the ‘intentional relinquishment or abandonment of a known right’” and 

forfeiture, which is “the failure to make the timely assertion of a right”—for example, “an 

inadvertent failure to raise an argument.” Barna v. Bd. of Sch. Dirs. of Panther Valley 

Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (quoting United States v. Olano, 507 U.S. 

725, 733 (1993)). According to this distinction, we would refer to an issue not preserved 

under Rule 302(a) as forfeited. Thus, for consistency with our case law, we will refer to 

such claims as forfeited, unless quoting Pennsylvania statute or cases.
6

issue here, he claimed a Sixth Amendment violation on grounds that he “never waived 

counsel.” Id. at 412. The District Court referred McLaughlin’s petition to a Magistrate 

Judge, who recommended that the Court deny it. The Magistrate Judge found that 

McLaughlin procedurally defaulted his waiver-of-counsel claim because state courts held 

that he forfeited it for appeal.

6

 The District Court adopted the Magistrate Judge’s 

recommendation “in its entirety,” saying that the Magistrate Judge “correctly concluded 

... that Petitioner’s waiver of counsel claim is procedurally defaulted.” Id. at 35. 

McLaughlin sought a Certificate of Appealability from this Court. We granted it on 

several issues, all related to McLaughlin’s Sixth Amendment waiver-of-counsel claim.7

II. DISCUSSION8

The District Court ruled that McLaughlin’s Sixth Amendment waiver-of-counsel 

claim was procedurally defaulted due to his failure to raise it with the trial court, causing 

Pennsylvania reviewing courts to find he forfeited the issue under Rule 302(a). We 

agree. 

6 The Magistrate Judge also questioned whether McLaughlin even raised this 

waiver-of-counsel theory in this petition. We interpret McLaughlin’s habeas petition as 

asserting this claim. See, e.g., JA 412, 435.

7 McLaughlin’s federal habeas petition brought other claims, which the District 

Court also denied. Because we only granted a Certificate of Appealability on 

McLaughlin’s Sixth Amendment waiver-of-counsel claim, we only address that claim 

here.

8 The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction 

under 28 U.S.C. §§ 1291 and 2253. We conduct plenary review of the District Court’s 

ruling. See Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007).
7

Under the doctrine of state procedural default, federal courts will not reach the 

merits of habeas claims when state courts have found such claims forfeited on procedural 

grounds. See Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). The doctrine

preserves state courts as the first-line reviewers of constitutional issues in state 

proceedings. As the Supreme Court has put it, procedural default ensures that the state 

trial remains “the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for what 

will later be the determinative federal habeas hearing.” Wainwright v. Sykes, 433 U.S. 

72, 90 (1977); see also Harrington v. Richter, 562 U.S. 86, 103 (2011).

The question for federal courts under the procedural default doctrine is whether 

the state procedural bar is “independent of the federal question and adequate to support 

the [state court’s] judgment.” Coleman, 501 U.S. at 729. If it is, then federal courts do 

not decide the merits. See id.

Here, the Superior Court applied Rule 302(a) and found that McLaughlin forfeited 

review of his Sixth Amendment claim. See 210 Pa. Code § 302(a) (“Issues not raised in 

the trial court are waived and cannot be raised for the first time on appeal.”). 

McLaughlin does not dispute that Rule 302(a) is independent of federal law and facially

adequate. Nor can he: the Third Circuit has previously held that Rule 302(a) can support 

a procedural default. See Werts v. Vaughn, 228 F.3d 178, 194 (2000). Rather, 

McLaughlin argues that two limited exceptions permit this Court’s review. First, he 

argues that the Superior Court’s application of Rule 302(a) was the kind of “exorbitant” 

application of an otherwise-sound rule that the Supreme Court said can make a state 
8

ground inadequate in Lee v. Kemna, 534 U.S. 362 (2002). Second, he argues that even if 

he did procedurally default his claim, he has shown cause and actual prejudice to excuse 

his default. Because neither exception applies, McLaughlin has procedurally defaulted 

his claim and we do not reach the merits.

A. Exorbitant Application 

In Lee, the Supreme Court said that in a “limited category” of “exceptional cases,”

an otherwise-sound state rule might be inadequate for procedural default if the state court 

applied it in an “exorbitant” way. 534 U.S. at 376. The Supreme Court was guided by 

“[t]hree considerations, in combination,” when finding the state court’s application of a 

procedural rule was exorbitant. Id. at 381. These considerations were: (1) the defendant 

had “substantially complied with” the rule in question, such that he accomplished its

“purpose;” (2) no published state court decision had ever required “flawless compliance” 

with the rules under the “unique circumstances” of the case; and (3) the record suggested 

that even the defendant’s “perfect compliance” would not have changed the relevant 

decision. Id. at 381–83, 387. Lee’s three considerations, though not a test, are helpful 

“guideposts” for deciding whether a state court’s application of a procedural rule is 

exorbitant. Shotts v. Wetzel, 724 F.3d 364, 371 (3d Cir. 2013).

Considering Lee’s guideposts, we conclude the District Court’s application of 

Rule 302(a) was not exorbitant.

The first guidepost is whether the petitioner “substantially complied with” the rule, 

and thus accomplished its “purpose.” Lee, 534 U.S. at 382, 387. McLaughlin did not 
9

substantially comply with Rule 302(a) and the rule’s purpose was not accomplished. To 

preserve a claim of trial court error under Rule 302(a), the appellant must object 

contemporaneously in the relevant trial court proceeding. Commonwealth v. May, 887 

A.2d 750, 758 (Pa. 2005). The Rule serves several purposes, including ensuring that “the 

trial court that initially hears a dispute has had an opportunity to consider the issue,” and 

to “correct its errors as early as possible;” conserving “judicial resources;” reducing 

“expense to the parties;” and promoting “fairness.” In re F.C. III, 2 A.3d 1201, 1212 (Pa. 

2010). The first time McLaughlin suggested any problem with his colloquy was after his 

sentencing in October 2007—two months after his trial, eight months after he confirmed 

with Judge Berry that he still wanted to proceed to trial pro se, and fifteen months after 

Judge Cooperman first allowed him to represent himself. By delaying so extensively, 

McLaughlin did not merely fail to technically comply with the contemporaneousobjection requirement, he barely noted his concern in the trial court at all. Thus, the first 

Lee guidepost cuts against McLaughlin.

The second guidepost is whether state law “directs flawless compliance” with the 

state rule under the “unique circumstances th[e] case presents.” Lee, 534 U.S. at 382. 

This too cuts against McLaughlin. Pennsylvania courts generally require compliance 

with Rule 302(a). See Commonwealth v. Hill, 238 A.3d 399, 404 (Pa. 2020) 

(“[G]enerally speaking, an appellant waives any claim that he fails to preserve in the trial 

court.”). Although Pennsylvania does recognize an exception for pro se litigants, this 

exception only applies to litigants who appear pro se “in the proceeding” during which 
10

they should have preserved the issue. Commonwealth v. Monica, 597 A.2d 600, 603 (Pa. 

1991); see also Commonwealth v. Red, 937 A.2d 383, 384 (Pa. 2007) (per curiam) (“The 

decision in Commonwealth v. Monica ... is distinguishable, because in that case there 

was no dispute that Appellant acted pro se throughout his trial proceeding.”). 

McLaughlin had counsel in August 2006, when Judge Cooperman first allowed him to 

represent himself. If Judge Cooperman did not conduct a proper colloquy at that hearing, 

McLaughlin should have objected then, through counsel.9 Because he did not, the 

Superior Court was not compelled to excuse Mclaughlin from the application of Rule 

302(a) and the Superior Court followed established Pennsylvania law.

The third guidepost is whether the petitioner’s “perfect compliance” would have 

changed the result. Lee, 534 U.S. at 387. Both parties agree that because Lee involved a 

different context, this third guidepost is not particularly relevant to our analysis here. We 

agree. But if we do ask the same question Lee did—whether McLaughlin’s perfect 

9 The evidence shows that McLaughlin knew the elements of a proper colloquy. 

See JA 285 (“I understood the parameters of 121. And that a six question colloquy 

would have to be asked and answered. So I did want her to go through the six questions 

so I fully understood.”); id. at 334 (PCRA trial court’s finding that McLaughlin “was 

familiar [with] and could reference the six requirements of a valid colloquy”). The 

record also reflects that McLaughlin was not shy in vocally asserting his rights in his 

many proceedings, including his right to a waiver-of-counsel colloquy—for example, 

when he urged Judge Cooperman to give him a “colloquy ... on the record” in July 2007. 

Id. at 48. Moreover, McLaughlin had standby and/or appointed counsel at every 

proceeding following the August 2006 hearing before Judge Cooperman. Thus, if 

McLaughlin had any genuine concerns about the colloquy, the evidence indicates that he 

had ample knowledge and opportunity to raise them whether on his own or through 

counsel. He did not do so, however, until he had fully played his chosen hand and lost.
11

compliance with the procedural rule would have changed the result in the trial court—this

guidepost also suggests that the Superior Court’s rule application was not exorbitant. 

Nothing in the record signals that the trial courts would have refused a request for a full 

colloquy had McLaughlin objected contemporaneously. The transcripts of McLaughlin’s 

hearings before Judge Cooperman reflect the great care she took to guard his right to 

counsel. Likewise, the transcripts of McLaughlin’s hearings before Judge Berry 

demonstrate a similar concern (for example, Judge Berry confirmed with McLaughlin 

that Judge Cooperman had asked him colloquy-type questions). These exchanges suggest 

that if McLaughlin had objected to the adequacy of his colloquy, Judges Cooperman and 

Berry would have conducted a full colloquy anew. Thus, although the third guidepost 

does not weigh heavily in our analysis, it factors against finding that the Superior Court’s 

rule application was exorbitant.

In sum, we conclude that the Superior Court’s application of Rule 302(a) against 

McLaughlin was not exorbitant and is adequate as a procedural bar to his claim.

B. Excuse for Default

Even if a procedural default rests on an independent and adequate state ground, we 

can still review a habeas claim if the petitioner shows both “cause” for the default and 

“actual prejudice” from the constitutional error. Davila v. Davis, 582 U.S. 521, 524

(2017). McLaughlin argues that his lack of counsel supplies both cause and actual 

prejudice to overcome his default.

We need not decide whether McLaughlin suffered actual prejudice, because the 
12

record shows that his procedural default was not caused by a lack of counsel. See Engle 

v. Isaac, 456 U.S. 107, 134 n.43 (1982) (“Since we conclude that these respondents 

lacked cause for their default, we do not consider whether they also suffered actual 

prejudice.”). McLaughlin can perhaps argue that he did not know Pennsylvania’s issuepreservation rules, and that his lack of counsel between August 2006 and September 2007 

was responsible for his procedural failings during that period. But even if true, that 

would not explain McLaughlin’s failure to object when he first waived counsel while 

represented by attorney Laver in August 2006, or to raise the issue in a post-trial motion 

while represented by attorney Mincey. Accordingly, we find that McLaughlin’s lack of 

counsel did not cause his default and McLaughlin’s claim is procedurally defaulted.

10

 

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s order.

10 The Magistrate Judge also questioned whether McLaughlin had exhausted his 

claim and that issue was included in granting McLaughlin a Certificate of Appealability. 

But because McLaughlin procedurally defaulted his claim, his claim is technically 

exhausted, and we need not analyze exhaustion further. See Woodford v. Ngo, 548 U.S. 

81, 92–93 (2006); see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996); Coleman, 

501 U.S. at 732.