NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 19

- 2972

___________ GERALD FUNK Appellant

v. SUPERIN T ENDENT SOMERSET SCI; ATTORNEY GENERAL PENNSYLVANIA;

DISTRICT ATTORNEY UNION COUNTY

________________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 1 8

- c v - 0 2 1 11 ) District Judge: Honorable Yvette Kane

________________ Argued on June 3 , 2021 Before: AMBRO, HARDIMAN , and PHIPPS , Circuit Judges

(Opinion filed : August 10, 2021 ) Tadhg Dooley David R. Roth Wiggin & Dana One Century Tower 265 Church Street New Haven, CT 06510
Bianca Herlitz

- Ferguson (Argued ) Yale Law School 127 Wall Street2

New Haven, CT 06511

Counsel for Appellant 1
D. Peter Johnson (Argued) Union County Office of District Attorney 103 South 2nd Street Lewisburg, PA 17837

Counsel for Appellees

OPINION *
AMBRO, Circuit Judge Gerald Funk seeks our review of the District Court’s d enial of his petition for habeas
corpus under 28 U.S.C. § 2254

. We granted a certificate of appealability on the claim that his counsel was ineffective for failing to explain or advise him accurately about plea offers

t hat were extended to him

. For the reasons stated below, we affirm

. I. Background
In 1998, Gerald Funk allegedly attacked and raped a 64

- year - old woman , resulting in charges of rape, aggravated assault, robbery, and attempted second

- and third

- degree
murder. Funk claims he was willing to plead guilty to rape because there was DNA
evidence linking him to the crime , but he was unwilling to plead guilty to the other charges. He reports this reticence created conflict with his first counsel , ultimately

1 We express our thanks to the Yale Law School Advanced Appellate Litigation Project and the supervising attorneys from Wiggin & Dana for taking on this matter pro bono

. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3

resulting in that counsel’s withdrawal

. Attorney Michael Suders subsequently stepped in to represent Funk , who now asserts that Suders provided ineffective assistance of
counsel. Throughout the proceedings there were several meetings about possible plea bargains. The record is murky as to the timing of these meetings. District Attorney Peter
Johnson testified th at the first meeting occurred in July 2000 outside of Funk’s presence.
Funk , by contrast, testified that he was present for a discussion with the District Attorney
that month , but the details of his story closely align instead with Johnson’s testimony

r el ating to a second meeting in December 2000

. Johnson reported that during the July meeting he offered a plea agreement where Funk could plead guilty to one count of rape. Funk did not accept this offer and now speculates that this is “presumably because it was never conveyed to him.” Funk Br. at 9. Suders disputes this assertion, contending that he “always communicated” plea offers to Funk. App. at 286.
Johnson asserted that a second discussion regarding a plea deal occurred months
later in Decemb er , immediately before trial but after the jury had been impaneled (as noted above, Funk testified that this meeting occurred in July)

. Both parties agree that
Johnson directly offered Funk a deal that would result in a plea to one count of rape with a recommended sentence of 8 to 20 years. Johnson explained “how benef icial this plea would be” and there was no indication “at all” that Funk did not understand the terms of the plea agreement . App. at 233. Funk nonetheless rejected the plea offer and told Johnson, “I guess we’re going to trial

. ” App. at 262. He now cla ims this was because he believed the judge had a policy requiring any pleas made after jury selection to be “open”4

pleas to all counts of the indictment , and he worried the judge would not accept a plea to just one count

. 2 App. at 2 77

. Funk contends that , although Suders and Johnson had already gotten the judge to waive this policy, Suders never took the time to explain that to him or to provide any guidance on whether he should accept Johnson’s plea offer

. After trial began, Funk (likely su specting the trial would not end well) asked Suders if he could still accept the offer that Johnson had previously presented. Suders “advised [Funk] about the

. . . offer and that it was open .” App. at 291 (emphasis added).
Funk claims he interpreted th is statement to mean that he could still accept the plea offer,
but it would have to be an “ open ” plea to all counts. He argues that Suders therefore misrepresented the terms of th e offer by again fail ing to mention that the judge had
waived his “ open - plea ” policy. Funk claims that because he was unwilling to plead to
any count b ut rape, he did not accept the offer.
After trial, the jury convicted Funk

. His sentence was 30 to 6 0 years ’ imprisonment

. In December 2003 , after an unsuccessful appeal, Funk filed a Pennsylvania Post Conviction Relief Act (“PCRA”) petition , which he later amended to include a claim that Suders provided ineffective assistance of counsel

. In the course of a protracted procedural history, the PCRA C ourt held hearing s at which Suders, Funk, and

2 There are notable inconsistencies in Funk’s rec ollections. For example, b efore the PCRA Court, Funk testified that he was confused about whether the plea offer was viable because he believed Johnson had been disqualified from prosecuting the case and that it was dismissed . App. at 261

– 62 , 276

. On ap peal, he does not claim any confusion on that basis. Nor does he explain why he would have told Johnson “I guess we’re going to trial” if he believed the entire case had been dismissed.5

Johnson testified. It found Suders’ and Johnson’s testimony credible and rejected Funk’s
ineffective assistance claim.
T he Commonwealth court proceedings eventually concluded in September 2018

w hen the Pennsylvania Supreme Court den ied Funk ’ s request for reconsideration of his
claims

. Funk then filed a federal habeas petition. The Magistrate Judge recommended the petition be d enied , and the District Court adopted th is recommendation. Funk appeal s
to us

. II. Discussion
A. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have jurisdiction under 28 U.S.C. § 2253. We apply the same standard as the District Court in reviewing the state court ’s decision. Marshall v. Hendricks , 307 F.3d 36, 50 (3d Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “ requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts’ legal and factual determinations on the merits.” Taylor v. Horn , 504 F .3d 416, 428 (3d Cir. 2007)

. Accordingly, w e may overturn a state

- court holding only if it

was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the S tate court proceeding.” 28 U.S.C. § 2254(d). “ [A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant [for a writ of habeas corpus]6

shall have the burden of rebutting the presumption of correctness by cl ear and convincing evidence.” Id. § 2254(e)(1).
Funk argues the PCRA C ourt relied on an unreasonable application of f ederal law when deciding that Suders did not provide ineffective assistance

. The federal law at issue
here is the test for ineffective assistance articulated in Strickland v. Washington : First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not function ing as the “counsel” guaranteed the defendant by the Sixth Amendment. Second , the defendant must show that the deficient performance prejudiced the defense. 466 U.S. 668, 687 (1984)

. In this context, w e determine “whether the state court’s application of the Strickland standard was unreasonabl e ” 3 or, in other words, “whether there is any reasonable argument ” that counsel’s performance satisfied the Strickland
standard. Harrington v. Richter , 562 U.S. 86, 10 1, 105 (2011). “ The standards created by Strickland and § 225 4(d) are both highly deferential , . . . and when the two apply in tandem, review is doubly so.” Id. at 105 (internal quotation marks and citations omitted).
B. Analysis Funk argues to us the PCRA Court erred by misconstruing the Strickland issue as
whether Suders informed him of the plea offer instead of whether counsel adequately explained the offer. See Funk Br. at 23 , 24 (citing Missouri v. Frye , 566 U.S. 134 (2012) ; Lafler v. Cooper , 566 U.S. 156 (2012) ; Hill v. Lockhart , 474 U.S. 52 (1985) ). As an

3 The PCRA C ourt applied the Pennsylvania standard for judging ineffe ctive assistance of counsel claims. That presents no concern, as we have previously held that this standard is consistent with Strickland

. See Werts v. Vaughn , 228 F.3d 178, 204 (3d Cir. 2000).7

initial matter, it appears Funk told the PCRA Court that this case raised a “failure

- to

inform” issue. See App. at 302 (“ Suders at no time informed [Funk] the plea offer in fact remained available”). And even if the PCRA Court could have explored the nuances of Funk’s argument more thoroughly, he still fail s to satisfy the first prong of Strickland

. 4

1. The July 2000 Plea Offer
Funk a sserts that it “stands to reason” that Suders failed to communicate the July
2000 plea offer to him , for otherwise he would have accepted it

. Funk Br. at 29. But Suders testified that he “always communicated” plea offers to Funk, and the PCRA C ourt found Suders credible. App. at 286, 333. Funk’s unsupported speculation to the contrary
is insufficient to enable us to conclude that Suders failed to satisfy Strickland ’s
deferential standard

.

2. The December 2000 Plea Offer
Second , Funk asserts that Suders pro vided ineffective assistance during the
December 2000 plea

- related meeting because he failed to disclos e that the judge had
waived his “ open - plea ” policy and did not explain the plea offer or give advice on
whether Funk should take it

. As noted above, the PCRA C ourt found Suders’ testimony more credible on this issue than Funk’s. And Johnson ’s testimony, which the PCRA
Court also found credible, indicates the plea offer was thoroughly explained by him to
Funk and there was no indication “at all” that Funk did not understand the terms . App. at
233. It appears that Suders and Funk had discussed the benefits and drawbacks of

4 As we hold that Funk has not satisfied the first Strickland prong of deficient performance, we do not reac h its second prong.8

various plea options throughout the course of the proceedings , and Funk made clear that
he was looking to plead guilty to one count of rape

. Despite having received a plea offer containing the exact terms he wanted , Funk took matters into his own hands and told Johnson, “I guess we’re going to trial.” App. at 262. As the PCRA Court conclu ded, Suders “fulfilled his duty” and Funk nonetheless “rejected the plea agreement and chose to take his chances at trial.” App. at 333.

3. The Plea Discussion After Trial Began Finally, Funk argues Suders provided ineffective and inaccurate counsel about the terms of the plea offer after trial began. But Suders testified before the PCRA Court that
he “advised” Funk about the offer and its potential consequences , and Funk “understood”
the offer but decided he wanted to continue with trial. App. at 291

– 292. The PCRA Court found this testimony more credible than Funk’s , and Funk has provided no basis for us to second guess that finding.
Funk hinges his argument on a two

- sentence exchange between Johnson an d Suders during the hearing in the PCRA Court: “[Johnson:] So you advised [Funk] about the eight to 20 offer and that it was open? [ Suders: ] Right. ” App. at 291. Funk interprets this statement to mean that Suders misrepresented that any plea deal would have to be an “open” plea to all counts. This argument is unsupported by the record. Suders did not admit to misrepresenting any aspect of the deal

. His use of the term “ o pen ” could reasonably be interpreted to mean that he tol d Funk the plea offer was still available , not that the plea would have to be an “open” plea to all counts

. It is therefore not clear that Suders made a misrepresentation at all. Moreover, Funk does not explain how he could9

have believed a one - count offe r for “eight to 20 years ” was instead an “open” plea to all

counts

. In this context, we cannot conclude Suders’ performance was deficient

. 5
* * * * *
We thus affirm the District Court ’s denial of Funk’s habeas petition.

5 Funk also alleges the PCRA Court made an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) , as it failed to parse out the three separate instances of alleged ineffective assistance of counsel

. While the Commonwealth court did not engage in depth with the nuances of the timeline, t his claim fails for the reasons stated above , as Funk has not demonstrated that Suders provided ineffective counsel even when considering the full timeline and the appropriate legal standard

.