NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-1475

____________ 

 

ERIC C. MCCOLLISTER,

Appellant

v.

SUPERINTENDENT CAMERON; THE DISTRICT ATTORNEY OF MONTGOMERY 

COUNTY; and THE ATTORNEY GENERAL OF PENNSYLVANIA

___________ 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-11-cv-00525)

District Judge: Honorable Lawrence F. Stengel

___________ 

Submitted Under Third Circuit L.A.R. 34.1(a)

May 30, 2013

Before: JORDAN, VANASKIE AND COWEN, Circuit Judges

(Filed: August 15, 2013)

___________ 

OPINION

___________

VANASKIE, Circuit Judge.

Eric C. McCollister appeals the denial of his petition for a writ of habeas corpus 

submitted pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability on the 
2

issue of whether McCollister‟s waiver of counsel was made knowingly and intelligently 

in light of the fact that, during the waiver colloquy, he was advised that his sentencing 

range was 40 to 80 years‟ imprisonment, with no mandatory minimum prison term, when 

in fact he faced a mandatory minimum prison term of 25 years and a maximum term of 

life imprisonment under Pennsylvania‟s “three strikes” law, 42 Pa. Cons. Stat. Ann. § 

9714. Because the state court‟s rejection of McCollister‟s challenge to the adequacy of 

the waiver of counsel colloquy was neither contrary to nor an unreasonable application of 

clearly established federal law, we will affirm the District Court‟s denial of McCollister‟s 

habeas petition.

I.

We write primarily for the parties, who are familiar with the facts and procedural 

history of this case. Accordingly, we set forth only those facts necessary to our analysis. 

McCollister was charged with burglary, criminal trespass, robbery, aggravated 

assault, and recklessly endangering another person arising out of a home invasion and 

assault in July of 2006. Dissatisfied with representation provided by four separate 

attorneys, McCollister requested that he be allowed to represent himself at trial, with 

appointed counsel acting in a standby capacity. Following a lengthy and comprehensive 

colloquy, during which McCollister was informed that his sentencing exposure was 40 to 

80 years in prison with no mandatory minimum prison term, the trial court accepted the 

waiver of counsel as “knowing, intelligent and voluntary.” (App. 64.) 

On May 2, 2008, McCollister was convicted by a jury on all counts. It was not 

until four months after the jury returned its verdict, however, that the Commonwealth 
3

filed a Notice of Intent to Seek Twenty-Five Year Mandatory Sentence due to Conviction 

of Third Violent Crime Offense. McCollister‟s two prior qualifying offenses included

burglary of a residence in 1987, and burglary of a residence in 1989.1 McCollister was 

sentenced to an aggregate term of 40 years to life imprisonment, including a 25-year 

mandatory minimum sentence pursuant to 42 Pa. Cons. Stat. Ann. § 9714 (a)(2). 

McCollister filed a timely direct appeal to the Pennsylvania Superior Court. 

On direct appeal, McCollister, among other things, asserted that the waiver of 

counsel colloquy was inadequate because it did not accurately apprise him of the 

sentencing range he faced, including the fact that there would be a mandatory minimum 

prison term of 25 years. The Superior Court rejected this assertion, explaining:

[McCollister] contends the court‟s waiver of counsel colloquy did not 

advise him of the permissible sentencing range. . . . [McCollister] asserts 

he was “confused” and “frustrated” during the colloquy, and the court 

failed to advise him of the potential for a “two strikes” mandatory 

minimum sentence pursuant to 42 Pa. C.S. § 9714(a)(2). [McCollister] 

insists he would not have waived his right to counsel at trial if he had 

known his minimum sentence could be mandatory. [McCollister] avers his 

waiver of counsel was involuntary and unknowing.

***

Rule 121 of the Pennsylvania Rules of Criminal Procedure sets forth the 

requirements for an effective waiver of the right to counsel and states in 

pertinent part:

Rule 121. Waiver of Counsel (A) Generally.

(1) The defendant may waive the right to be represented by 

counsel.

 

1 The Commonwealth contends that it was not until after the conclusion of 

McCollister‟s trial that it learned that the structures burglarized by McCollister more than 

twenty years earlier were occupied, triggering the 25-year mandatory minimum prison 

term and maximum prison term of life under Pennsylvania‟s three strikes law. See 18 

Pa.C.S. § 9714(a)(2).
4

(2) To ensure that the defendant's waiver of the right to 

counsel is knowing, voluntary, and intelligent, the judge or 

issuing authority, at a minimum, shall elicit the following

information from the defendant:

(a) that the defendant understands that he or she has the right 

to be represented by counsel, and the right to have free 

counsel appointed if the defendant is indigent;

(b) that the defendant understands the nature of the charges 

against the defendant and the elements of each of those 

charges;

(c) that the defendant is aware of the permissible range of 

sentences and/or fines for the offenses charged;

(d) that the defendant understands that if he or she waives the 

right to counsel, the defendant will still be bound by all the 

normal rules of procedure and that counsel would be familiar 

with these rules;

(e) that the defendant understands that there are possible 

defenses to these charges that counsel might be aware of, and 

if these defenses are not raised at trial, they may be

lost permanently; and

(f) that the defendant understands that, in addition to 

defenses, the defendant has many rights that, if not timely 

asserted, may be lost permanently; and that if errors occur

and are not timely objected to, or otherwise timely raised by 

the defendant, these errors may be lost permanently.

***

(C) Proceedings Before a Judge. When the defendant seeks to 

waive the right to counsel after the preliminary hearing, the 

judge shall ascertain from the defendant, on the record,

whether this is a knowing, voluntary, and intelligent waiver of 

counsel.

(D) Standby Counsel. When the defendant's waiver of 

counsel is accepted, standby counsel may be appointed for the 

defendant. Standby counsel shall attend the proceedings and 

shall be available to the defendant for consultation and 

advice. Pa. R.Crim.P. 121(A), (C), (D).

“A waiver colloquy must ... always contain a clear demonstration of the 

defendant‟s ability to understand the questions posed to him during the 

colloquy.” Commonwealth v. McDonough, 571 Pa. 232, 236 n.1, 812 A.2d 

504, 507 n.1 (2002). For example, the court should inquire about the 

defendant‟s age, educational background, and basic comprehension skills. 

Id.
5

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the [Trial Judge], we 

conclude [McCollister‟s] issues merit no relief. The trial court opinion 

comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion at 4-24 (finding ... [McCollister‟s 

waiver of counsel was knowing, intelligent and voluntary where (a) court 

conducted meticulous colloquy record, informing [McCollister] of nature of 

charges and permissible range of sentences for offenses charged, (b) court 

advised [McCollister] of his right to object to evidence, but court had no 

duty to teach [McCollister] laws of evidence, (c) [McCollister] had 

opportunity to state on the record that he was confused, but instead chose to 

participate in colloquy, (d) [McCollister] stated under oath and on the

record that no one had forced or threatened him to waive counsel, and that 

no one had promised him anything in exchange for his waiver, (e) 

ultimately [McCollister] stated three times under oath that he desired to 

waive his right to counsel.))

(Commonwealth v. McCollister, No. 1401 EDA 2009, pp. 14, 20-22 (Pa. Super. Ct. Aug. 

30, 2010) (Memorandum)).

On January 25, 2011, McCollister filed a pro se Petition for Writ of Habeas 

Corpus. Among the issues presented in the habeas petition was that he was denied his 

right to counsel because the plea colloquy did not accurately set forth the sentencing 

range to which he was exposed, including the 25 year mandatory minimum prison term 

under Pennsylvania‟s three strikes rule. The Magistrate Judge to whom the § 2254 

petition was referred recommended denial of relief on this claim, observing that the state 

court‟s finding that the waiver colloquy was adequate “is neither contrary to, nor an 

unreasonable application of, United States Supreme Court precedent.” (October 18, 2011 

Report and Recommendation at 31.) The District Court overruled McCollister‟s 

objections to the Report and Recommendation and denied the habeas petition. This 

appeal followed. 
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On August 27, 2012, we granted McCollister‟s request for a certificate of 

appealability solely on the issue of whether his waiver of right to trial counsel was made 

knowingly and intelligently. We also appointed counsel to represent McCollister on 

appeal.2

II.

The District Court had jurisdiction under 28 U.S.C. § 2241(a) and § 2254(a). We 

have appellate jurisdiction under 28 U.S.C. § 1291 and § 2253(c)(1). 

Where, as here, a state court has decided the merits of a petitioner‟s habeas claim, 

relief in federal court may be granted only if the state court‟s adjudication of the claim:

(1) resulted in a decision that was contrary to or involved in an 

unreasonable application of, clearly established Federal Law, as determined 

by the Supreme Court of the United States;

(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.

28 U.S.C. § 2254(d)(1), (2). In this case, the facts are not in dispute, and McCollister 

does not contend that the state court‟s determination of his Sixth Amendment right to 

counsel claim was contrary to a precedent of the Supreme Court of the United States. 

Instead, he limits his argument to the assertion that the state court rejection of his Sixth 

Amendment claim represented an unreasonable application of clearly established federal 

law. 

The starting point of analysis in a case such as this “is to identify the „clearly 

established Federal law, as determined by the Supreme Court of the United States‟ that 

 

2 We acknowledge with appreciation the fine efforts of court-appointed counsel in 

presenting arguments on behalf of McCollister.
7

governs the habeas petitioner‟s claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 

(2013). The Supreme Court has clearly established that there is a right to waive counsel 

and proceed pro se, provided that the waiver is knowing and voluntary. See Faretta v. 

California, 422 U.S. 806, 814 (1975). See also Iowa v. Tovar, 541 U.S. 77, 87-88 

(2004). The Supreme Court, however, “ha[s] not . . . prescribed any formula or script to 

be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 

U.S. at 88. Specifically, there is no Supreme Court precedent holding that the failure to 

apprise a defendant of a potential statutory mandatory minimum prison term renders a 

waiver of counsel unknowing or involuntary. Nor is there any High Court ruling that 

erroneous advice pertaining to the sentencing range faced by the defendant renders that 

defendant‟s waiver of counsel invalid. 

What the Supreme Court has required is that the defendant “be made aware of the 

dangers and disadvantages of self-representation, so that the record will establish that „he 

knows what he is doing and his choice is made with eyes open.‟” Faretta, 422 U.S. at 

835. The comprehensive colloquy undertaken by the Trial Judge in this case leaves no 

doubt that McCollister made his decision to waive representation by counsel with his 

eyes wide open. McCollister knew that he faced an aggregate prison range of 40 to 80 

years in prison, which, effectively, is the prison term he received. While not informed 

that the maximum prison term could be life, this omission was inconsequential in view of 

McCollister‟s age at the time of the plea colloquy (39 years-old.) Moreover, the 

statutory mandatory minimum came into play only upon the Commonwealth‟s filing of 

its notice of intention to proceed under the Pennsylvania three strikes law, and 
8

Pennsylvania law only requires that such notice be given after a conviction. See 42 Pa. 

Cons. Stat. Ann. § 9714(d). Thus, at the time of the colloquy, the sentencing range 

information communicated to McCollister was accurate. Under these circumstance, the 

Pennsylvania Superior Court‟s determination that McCollister validly waived his right to 

counsel is not an unreasonable application of precedents of the Supreme Court of the 

United States. 

McCollister‟s reliance upon our decisions in United States v. Booker, 684 F.3d 

421 (3d Cir. 2012), United States v. Jones, 452 F.3d 223 (3d Cir. 2006), and United 

States v. Moskovits, 86 F.3d 1303 (3d Cir. 1996), is unavailing. Although those 

decisions, which involved direct appellate court review of the validity of a waiver of 

counsel, bear some factual similarities to McCollister‟s situation, they cannot “be used to 

refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal 

rule that [the Supreme] Court has not announced.” Marshall, 133 S. Ct. at 1450. It is 

only the precedents of our High Court that set the boundaries of our review of the validity 

of a state court conviction. See id. at 1450-51 (“Although an appellate panel may, in 

accordance with its usual law-of-the-circuit procedures, look to circuit precedent to 

ascertain whether it has already held that the particular point in issue is clearly 

established by Supreme Court precedent, it may not canvass circuit decisions to 

determine whether a particular rule of law is so widely accepted among the Federal 

Circuits that it would, if presented to this Court, be accepted as correct.”) (Citations 

omitted.) In light of the fact that the Supreme Court has not held that the omission of 

information pertaining to a statutory mandatory minimum or an inconsequential error 
9

with respect to the maximum prison term voids an otherwise effective waiver of counsel, 

it cannot be said that the Pennsylvania Superior Court‟s ruling in this case is “an 

unreasonable application of the „general standard[s]‟ established by the Court‟s 

assistance- of-counsel cases.” Id.at 1450 

IV.

For the foregoing reasons, we will affirm the District Court‟s judgment.