Charles Thom As Lewis v. PHILIP L. JOHNSON, Superintendent, SCI-Pittsburgh

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 01-1036
CHARLES THOM AS LEWIS,
Appellant
v.
PHILIP L. JOHNSON, Superintendent,
SCI-Pittsburgh; MIKE FISHER,
Attorney General of Pennsylvania,
Appellees
Appeal from the Order denying
Petition for Writ of Habeas Corpus
and denying a Certificate of
Appealability entered on December 8,
2000, in the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 00-cv-1500)
District Judge: Hon. William L. Standish
Argued June 26, 2003
* Hon. Petrese B. Tucker, United
States District Court Judge for the
Before: SLOVITER, AMBRO,
Circuit Judges, and TUCKER,*
District Judge
(Opinion Filed March 10, 2004 )
Michael D. Bartko, Esquire (Argued)
Suite 401
210 Grant Street
Pittsburgh, PA 15219
Attorney for Appellant
Ronald M. Wabby, Jr., Esquire (Argued)
Office of the District Attorney
401 Allegheny County Courthouse
Pittsburgh, PA 15219
Attorney for Appellees
OPINION OF THE COURT
TUCKER, District Judge.
This matter comes to us on appeal
from the district court’s denial of
Appellant Charles Thomas Lewis’s
application for writ of habeas corpus,
seeking relief from his state conviction on
grounds his Sixth Amendment right to
effective assistance of counsel was
violated. Specifically, Lewis contends that
his trial counsel’s failure to file a notice of
appeal constituted constitutionally-
Eastern District of Pennsylvania, sitting by
designation.

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deficient performance within the meaning
of Strickland v. Washington, 466 U.S. 668
(1984), and Roe v. Flores-Ortega, 528
U.S. 470 (2000), and deprived him of his
first appeal of right. In accordance with
the foregoing, we reverse the district
court’s order denying habeas relief and
remand with instructions that a writ be
issued conditioned on the Commonwealth
reinstating nunc pro tunc Lewis’s right of
first appeal.
I. BACKGROUND
A. Trial Proceedings
Lewis is presently an inmate at the
State Correctional Institution at Pittsburgh
where he is serving a 30 to 60 year
sentence imposed by the Pennsylvania
Court of Common Pleas of Allegheny
County (“trial court”) following his
conviction on six counts of robbery and
nine other criminal offenses. Lewis
pleaded guilty to the charges on January
27, 1987, and was sentenced on March 3,
1987. Lewis was sentenced to six
consecutive 5 to 10 year terms for each
robbery count, to be followed by eleven
years of probation for the bad checks and
firearms charges. Lewis was represented
by John Elash, a court-appointed attorney,
during the guilty plea and sentencing
proceedings. Following the announcement
of the sentence, the trial judge informed
Lewis of his right to file post-trial motions
challenging the validity of his guilty plea
or requesting modification of the sentence
within 10 days of the proceeding.
On March 12, 1987, nine days
following his sentencing, Lewis filed a
timely motion pro se in the trial court
challenging the validity of his guilty plea
on several grounds, including ineffective
assistance of counsel. On April 10, 1987,
trial counsel filed a “Motion for Leave to
Withdraw Guilty Plea,” which the trial
court summarily denied without opinion.
The trial court did not rule on Lewis’s pro
se motion and the parties indicate that it
remains pending. No appeal was taken
from either the judgment of sentence or the
trial court’s ruling denying the counseled
motion to withdraw the guilty plea.
B. First Petition for Post-Conviction
Relief Under State Law
On February 1, 1988, Lewis filed
his first post-conviction petition pro se
pursuant to the Pennsylvania Post
Conviction Hearing Act (“PCHA”), 42
Pa.C.S. § 9541 et seq,1 in the Common
Pleas Court of Allegheny County. Counsel
was appointed and an amended petition
was subsequently filed. Among the issues
raised in the PCHA petition was
ineffective assistance of counsel based on
1 The PCHA was repealed on April
13, 1988, and superseded by the Post-
Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. It appears from the
record that Lewis may have filed his
PCHA petition on November 25, 1987, see
Appendix, Vol. 1 at 105, 231, but we use
the date cited in the magistrate judge’s
report and recommendation.

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trial counsel’s: (1) failure to move to
withdraw Lewis’s guilty plea when the
trial court did not accept the alleged plea
agreement and sentence Lewis to 5 to 10
years on each robbery count running
concurrently rather than consecutively; (2)
failure to appeal the trial court’s denial of
Lewis’s motion for leave to withdraw the
guilty plea “despite having a meritorious
argument that the guilty plea was
unlawfully induced”; and (3) failure to file
a direct appeal from the denial of the post-
trial motion and judgment of sentence.2
Appendix, Vol. 1 at 117. Lewis’s PCHA
petition was denied following an
evidentiary hearing. Lewis appealed the
decision to the Superior Court, which
addressed the sole of issue of whether
Lewis was denied his right of direct
appeal. The Superior Court concluded that
its prior decision in Commonwealth v.
Dockins, 471 A.2d 851 (Pa. Super. 1984),
which holds that “trial counsel cannot be
found ineffective for failing to file a direct
appeal when not requested to do so,” was
controlling. The court affirmed the denial
of Lewis’s petition for post-conviction
relief under the PCHA based on its
conclusion that:
[t]rial counsel admitted
discussing the possible
grounds for appeal and
mentions that none of the
grounds were of appellate
merit. The only evidence
indicating the desire to
appeal was provided in the
appellant’s testimony at the
hearing on the PCHA
petition. However, in
reviewing the transcript of
the hearing, we find nothing
in the record to support the
appellant’s testimony. The
PCHA court resolved the
issue of credibility in favor
of trial counsel. That
determination will not be
disturbed on appeal. We
therefore adhere to the
holding in Dockins,...
providing that trial counsel
cannot be found ineffective
for failing to file a direct
appeal when not requested
to do so.
Appendix, Vol. II at 385. Lewis’s petition
for allocator to the Pennsylvania Supreme
Court appealing the Superior Court’s
ruling was denied.
C. Second Petition for State Post-
Conviction Relief
Lewis, represented by counsel, filed
a second petition for post-conviction relief
on February 14, 1995, pursuant to
Pennsylvania’s Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546.
Lewis again contested the validity of his
guilty plea and alleged trial counsel was
ineffective on a number of grounds, to
include for failing to take direct appeal
2 Lewis raised these same claims in
the PCHA petition that he filed pro se.
Appendix, Vol. 1 at 110.

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from the judgment of sentence which,
Lewis contended, was contrary to the
terms of his guilty plea. Another
evidentiary hearing was held, and the
PCRA petition denied thereafter. Lewis
appealed the decision to the Superior
Court. The court disposed of the question
of Lewis’s right to a direct appeal in a
footnote, holding that “his claim was
meritless” since the court had previously
decided the claim against him when it
adjudicated his first post-conviction
petition under the PCHA, and held that
Dockins precluded relief. Appendix, Vol.
II at 389 n.2 (citing Commonwealth v.
Lewis, No. 978 Pittsburgh 1989 (Pa.
Super. Ct. filed July 18, 1990)). Lewis’s
petition for leave to appeal this decision to
the Pennsylvania Supreme Court was
denied.
D. Federal Habeas Petition
Following the exhaustion of his
state remedies, Lewis filed a timely pro se
petition for writ of habeas corpus in the
United States District Court for the
Western District of Pennsylvania on
August 4, 2000. In his petition, Lewis
alleged, inter alia, that the decisions of the
Commonwealth courts ran counter to
clearly e s t a b li s h e d fe d e ra l l aw .
Specifically, Lewis contended that his trial
counsel was ineffective for failing to file a
direct appeal from the trial court’s denial
of his motion for leave to withdraw his
guilty plea and the judgment of sentence.
The district court referred the case to the
magistrate judge who addressed only the
question of whether trial counsel was
ineffective for causing Lewis to enter a
guilty plea that was not voluntary and
intelligent. Concluding that the state
courts’ resolution of this question was not
contrary to clearly established law, the
magistrate judge recommended that
Lewis’s petition for habeas relief be
denied.
Lewis timely filed objections to the
magistrate’s report and recommendation,
arguing that the magistrate judge failed to
(1) review his claim of ineffectiveness
arising from trial counsel’s failure to take
a direct appeal, and (2) made no
determination as to whether the record
supported the state courts’ finding that he
had not asked trial counsel to take an
appeal. Lewis further argued that “counsel
denied assistance by unconstitutionally
abandoning his assignment to my case
during critical judicial proceedings without
filing an appeal.” Appendix, Vol. III at
567. In support of his objections, Lewis
cited to the Supreme Court’s decisions in
Flores-Ortega and Douglas v. California,
372 U.S. 353 (1963). By order, the
district court adopted the magistrate
judge’s report and recommendation and
denied Lewis’s petition for federal habeas
relief.
Lewis filed a timely notice of
appeal in this court. We granted Lewis’s
application for a certificate of appealability
to consider whether trial counsel was
ineffective for failing file a direct appeal.

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II. DISCUSSION
A. Standard of Review
Our jurisdiction to review a district
court’s order denying a state inmate’s
petition for habeas relief is derived from
28 U.S.C. §§ 1291, 2253. Where, as in
this case, “the District Court relied
exclusively on the state court record and
did not hold an evidentiary hearing, our
review of its decision is plenary.” Moore
v. Morton, 255 F.3d 95, 103 (3d Cir. 2001)
(citation omitted). Lewis, a state inmate
seeking relief from his state court
conviction, filed his federal habeas petition
in 2000; thus our adjudication of this case
is governed by the provisions of the
Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), which, in
relevant part, provides:
An application for a
writ of habeas corpus on
behalf of a person in
custody pursuant to the
judgment of a State court
shall not be granted with
respect to any claim that
was adjudicated on the
merits in State court
proceedings unless the
adjudication of the claim–
(1) resulted in a
decision that was contrary
t o , o r i n v o lv e d a n
unreasonable application of,
clearly established Federal
law, as determined by the
Supreme Court of the
United States; or
(2) resulted in a
decision that was based on
a n u n r e a s o n a b l e
determination of the facts in
light of the evidence
presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1). The AEDPA
“modifie[d] the roles of federal habeas
courts in reviewing petitions filed by state
prisoners.” Williams v. Taylor, 529 U.S.
362, 403 (2000). Under this new statutory
rubric, “[w]e are to review the state court’s
determinations on the merits only to
ascertain whether the court reached a
decision that was ‘contrary to’ or an
‘unreasonable application’ of clearly
established Supreme Court law, or whether
it made an ‘unreasonable determination’ of
the facts.” Marshall v. Hendricks, 307
F.3d 36, 51 (3d Cir. 2002). “[T]he
determination whether or not a rule is
clearly established at the time a state court
renders its final judgment of conviction is
a question as to which the ‘federal courts
must make an independent evaluation.’”
Williams, 529 U.S. at 382 (quoting Wright
v. West, 505 U.S. 277, 305 (1992)
(O’Connor, J., concurring in judgment)).
The AEDPA does, however, confine the
authorities on which federal courts may
rely in making this determination to the
decisional law of the Supreme Court, that
is, the “Federal law, as determined by the
Supreme Court of the United States.” Id.
at 381-82 (quotation omitted).

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The question in this case is whether
Lewis’s trial counsel was ineffective for
not filing a notice of appeal. Lewis relies
on the Supreme Court’s decision in
Flores-Ortega, which held that criminal
defense attorneys have a constitutional
duty to consult and advise defendants of
their appellate rights. Flores-Ortega was
decided after Lewis’s conviction was
finally adjudicated, thus we certified two
questions in our order granting Lewis’s
appeal. The first asks whether, in light of
Strickland and Flores-Ortega, the
Commonwealth courts’ “application of the
rule of Commonwealth v. Dockins,
[supra], to appellant’s claim resulted in a
decision that was ‘contrary to, or involved
an unreasonable application of clearly
established Federal law, as determined by
the Supreme Court of the United States[.]’
28 U.S.C. § 2254(d)(1).” As an
antecedent to this question, we instructed
that the parties “first address the question
to what extent the holdings of Flores-
Ortega constitute ‘clearly established
federal law.’ See Williams v. Taylor,
[supra].” We begin our inquiry addressing
this latter question.
B. Teague Analysis
1.
“The threshold question under the
AEDPA is whether [the petitioner] seeks
to apply a rule of law that was clearly
established at the time his state-court
conviction became final.” Williams, 529
U.S. at 390. In Williams, the Supreme
Court held that this limiting provision of
the AEDPA “bears only a slight
connection” to the nonretroactivity
principle articulated in Teague v. Lane,
489 U.S. 288 (1989), and its progeny
except to the extent that “whatever would
qualify as an old rule under our Teague
line of cases will constitute ‘clearly
established Federal law, as determined by
the Supreme Court of the United States’
under § 2254(d)(1).” Williams, 529 U.S.
at 412 (citation omitted). “The
nonretroactivity principle prevents a
federal court from granting habeas corpus
relief to a state prisoner based on a [new]
rule announced after his conviction and
sentence became final.” Caspari v.
Bohlen, 510 U.S. 383, 389 (1994).
As we have explained, “Teague
teaches that the federal courts in habeas
corpus proceedings should be reluctant to
apply new rules of federal jurisprudence in
state court cases decided before such new
rules were handed down. Principles of
comity and finality counsel that we
maintain a circumscribed scope of habeas
review.” Banks v. Horn, 271 F.3d 527,
543 (3d Cir. 2001), rev’d on other grounds
by Horn v. Banks, 536 U.S. 266 (2002),
and reaff’d by Banks v. Horn, 316 F.3d
228 (3d Cir. 2003) [hereinafter “Banks
III”] (citing Teague, 489 U.S. at 308).3
The Supreme Court has acknowledged that
3 Banks III is currently pending
appeal before the Supreme Court. See
Beard v. Banks, 124 S. Ct. 45 (2003)
(Mem) (granting petition for writ of
certiorari).

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discerning whether a rule is “old” or
“new” for retroactivity purposes is not
without diff icult y, “[b]u t Teague
established some guidance for making this
determination, explaining that a federal
habeas court operates within the bounds of
comity and finality if it applies a rule
‘dictated by precedent existing at the time
the defendant’s conviction became final.’”
Williams, 529 U.S. at 381 (quoting
Teague, 489 U.S. at 301). Conversely, a
“new” rule is one which “breaks new
ground or imposes a new obligation on the
States or the Federal Government.” Id.
The question of whether a rule is “old” or
“new” for Teague purposes remains one
“which the ‘federal courts must make an
independent evaluation.’” Id. at 382
(quoting Wright, 505 U.S. at 305
(O’Connor, J., concurring in judgment)).
In accord with the AEDPA, federal courts
may rely only on the precedents of the
S up re m e Co urt in making this
determination. Id. at 412.
Teague outlines a three-step
analysis for determining whether the
nonretroactivity principle prevents a
habeas petitioner’s reliance on a particular
rule.4 “First, we must determine when the
defendant’s conviction became final.
Second, we must survey the legal
landscape to determine whether or not the
case in question announced a new rule of
constitutional law. Finally, if we determine
that the case did announce a new rule, we
must consider whether it fits into one of
the two exceptions to nonretroactivity.”
Banks III, 316 F.3d at 233 (citing Caspari,
510 U.S. at 390). There is no dispute in
this case that the final adjudication of
Lewis’s conviction pre-dated Flores-
Ortega and the two exceptions to the
Teague bar do not apply. Thus we focus
our inquiry on step two, reviewing the
legal landscape to determine whether the
duty to consult announced in Flores-
Ortega was dictated by precedent clearly
established at the time Lewis’s conviction
became final.5 Williams, 529 U.S. at 412.
4 We note that, while the question
of whether a particular rule is Teague-
barred is a threshold question, a “federal
court may, but need not, decline to apply
Teague if the State does not argue it.”
Horn, 536 U.S. at 271. The district court
did not consider Lewis’s Flores-Ortega
challenge, and the Teague issue in this
context did not arise. We directed the
parties sua sponte to brief the question.
5 Wh ether Flo res-Ortega
constitutes an “old” rule for retroactivity
purposes is a question of first impression
in this Circuit. Our research indicates that
only one Federal Court of Appeals has
considered this question on the merits. In
Daniel v. Cockrell, 283 F.3d 697, 708 (5th
Cir. 2002), the Fifth Circuit held, without
discussion, that Flores-Ortega constitutes
a “new” rule for Teague purposes.

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2.
In Flores-Ortega,6 the Supreme
Court addressed the question of whether
counsel may be found deficient for failing
to file a notice of appeal absent specific
instruction from the defendant. Because
the question concerned whether counsel’s
representation wa s con stitutiona lly
defective, the Court held that the familiar
two-part test announced in Strickland
governed its inquiry.7 528 U.S. at 476-77.
Applying the Strickland standard to the
particular facts before it, the Court held
that “counsel had a constitutionally
imposed duty to consult with the defendant
about an appeal when there is reason to
think either (1) that a rational defendant
would want to appeal (for example,
because there are nonfrivolous grounds for
appeal), or (2) that this particular
defendant reasonably demonstrated to
counsel that he was interested in
appealing.” 528 U.S. at 480. The Court
further explained that it “employ[ed] the
term ‘consult’ to convey a specific
meaning–advising the defendant about the
advantages and disadvantages of taking an
appeal, and making a reasonable effort to
discover the defendant’s wishes.” Id. at
478. Additionally, the Supreme Court
instructed that courts undertaking this
inquiry, as with all ineffective assistance
claims, “take into account all the
information counsel knew or should have
known.” Id. at 480 (citing Strickland, 466
U.S. at 690). With respect to Strickland’s
prejudice prong, the Court held that the
harmless error inquiry applied and that
relief could not be granted unless the
defendant could “demonstrate that there is
a reasonable probability that, but for
counsel’s deficient failure to consult with
him about an appeal, he would have timely
appealed.” Id. at 484.
The parties do not dispute that
Strickland’s reasonableness test was
clearly established law in 1987 when
Lewis’s conviction became final, and that
it governs the adjudication of this case.
See Williams, 529 U.S. at 391 (“It is past
question that the rule set forth in
Strickland qualifies as ‘clearly established
Federal law[.]”). Rather, the point of
contention rests with the Court’s second
holding in Flores-Ortega respecting the
duty to consult. Lewis contends the
second holding of Flores-Ortega was
dictated by precedent, and urged at oral
6 We begin our Teague analysis
with Flores-Ortega, as “[t]he crux of the
analysis when Teague is invoked... is
identification of the rule on which the
claim for habeas relief depends.” Wright,
505 U.S. at 311 (Souter, J., concurring in
judgment). See also Banks III, 316 F.3d at
232.
7 Under Strickland, “[a] defendant
claiming ineffective assistance of counsel
in violation of the Sixth Amendment...
must show f i r s t t h a t coun sel’s
r e p r e s e n t a t i o n w a s o b j e c t i v e ly
unreasonable, and second, that counsel’s
deficient performance was prejudicial.”
United States v. Solis, 252 F.3d 289, 293
(3d Cir. 2001) (citing Flores-Ortega, 528
U.S. at 476-77).

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argument that the Supreme Court merely
“clarified” the law as it applied to the facts
before it. Conversely, the Commonwealth
argues that this holding imposed a new
burden on the States by “set[ting] forth a
new standard for the appellate process”
and is barred by Teague from application
in this case.
We note as an initial matter that the
Commonwealth has provided little analysis
and cites no authority for this position.
When pressed at oral argument, counsel
for the Commonwealth could only point to
language in the Court’s opinio n
announcing the decision, “[t]oday... we
hold” and “the standard we announce
today,” 528 U.S. at 480, language which
counsel took “to mean a new rule, if you
announce the rule today.” See also
Appellee Br. at 22. This language is
hardly dispositive or even persuasive. The
point of the Teague analysis is to
determine whether a rule which post-dates
the State’s final adjudication of a habeas
petitioner’s conviction may, without
offending principles of comity and finality,
be retroactively applied. The language on
which the Commonwealth relies merely
states the obvious (that the case announced
a rule on a particular day) and does not
inform the second prong of our Teague
inquiry. Further, we note that case law
need not exist on all fours to allow for a
finding under Teague that the rule at issue
was dictated by Supreme Court precedent.
Strickland is a rule of general applicability
which asks whether counsel’s conduct was
objectively reasonable and conformed to
professional norms based “on the facts of
the particular case, viewed as of the time
of counsel’s conduct.” 466 U.S. at 690
(emphasis added). This standard
“provides sufficient guidance for resolving
virtually all ineffective-assistance-of-
counsel claims.” Williams, 529 U.S. at
391.
F o r t h e s e r e a s o n s , t h e
Common wealth’s emphasis on the
particular duty identified by the Flores-
Ortega Court – counsel’s constitutional
obligation to consult with her client
regarding appeal options – as a basis for
classifying this rule as “new” for Teague
purposes is misplaced. “That the
Strickland test ‘of necessity requires a
case-by-case examination of the
evidence,’... obviates neither the clarity of
the rule nor the extent to which the rule
must be seen as ‘established’ by this
[Supreme] Court.” Id. (quoting Wright,
505 U.S. at 308 (Kennedy, J., concurring
in judgment)). Justice Kennedy’s
concurrence in Wright v. West is
instructive on this point:
If the rule in question is one
which of necessity requires
a case-by-case examination
of the evidence, then we can
tolerate a number of specific
applications without saying
that those applications
themselves create a new
rule.... Where the beginning
point is a rule of this general
application, a rule designed
for the specific purpose of
evaluating a myriad of

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factual contexts, it
will be the infrequent
case that yields a
result so novel that it
forges a new rule,
one not dictated by
precedent.
505 U.S. at 308-09 (emphasis added). Our
review of the legal landscape, well-settled
at the time Lewis’s conviction became
final, compels us to conclude that Flores-
Ortega did not “yield[] a result so novel
that it forge[d] a new rule,” and that
Flores-Ortega’s application of the
Strickland standard was dictated by
precedent and merely clarified the law as it
applied to the particular facts of that case.
Indeed we need look no further than
Strickland in making this determination.
I n a n n o u n c i n g t h e o b j e c t i v e
reasonableness standard, the Strickland
Court identified “certain basic duties” that
its precedents and then-ex isting
professional norms established criminal
defense attorneys must carry out to
perform competently within the meaning
of Sixth Amendment. The Court included
among these duties “counsel’s [obligation
to] function as assistant to the defendant...
[and] the overarching duty to advocate the
defendant’s cause and the more particular
duties to consult with the defendant on
important decisions and to keep the
defendant inform ed of important
developments in the course of the
prosecution.” Strickland, 466 U.S. at 688
(emphasis added). The decision whether
to appeal is unquestionably one such
“important decision.” See, e.g., Flores-
Ortega, 528 U.S. at 489 (Souter, J.,
concurring in part and dissenting in part);
Evitts v. Lucey, 469 U.S. 387 (1985);
Wainwright v. Sykes, 433 U.S. 72, 92
(1977) (Burger, C.J., concurring) (noting
the question of whether to appeal is a
“critical procedural decision”); Rodriguez
v. United States, 395 U.S. 327 (1969). It
follows then that since the decision to
appeal “cannot be made intelligently
without appreciating the merits of possible
grounds for seeking review, and the
potential risks to the appealing defendant,
a lay defendant needs help before
deciding.”8 Flores-Ortega, 528 U.S. at
489 (Souter, J.) (emphasis added)
(citations omitted).
This proposition – that a defendant
requires the advice of counsel to make an
informed decision respecting his right of
appeal – was hardly novel in 1987. It was
clearly established that the Sixth
Amendment’s guarantee of effective
8 We note that the Flores-Ortega
majority and the Justices dissenting in part
and joining in Justice Souter’s opinion
disagreed only on the question of whether
counsel should have a per se duty to
consult the defendant in all cases. See 528
U.S. at 481. The majority rejected such a
bright-line rule though recognizing it as
the “better practice,” id. at 479, whereas
Justice Souter would have held that
counsel is “almost always” obligated to
consult her client about an appeal. Id. at
488.

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assistance of counsel extended to the first
appeal as of right, and the Strickland
s t a n d a r d a p p l i e d t o a p p e l l a t e
representation. See generally Jones v.
Barnes, 463 U.S. 745 (1983); Evitts, 469
U.S. 387. The Supreme Court cases
respecting attorney competence on appeal
recognized that lay defendants “may not
even be aware of errors which occurred at
trial,” Rodriguez, 395 U.S. at 330, and
required “the superior ability of trained
counsel in the ‘examination into the
record, research of the law, and
marshalling of arguments’” on appeal just
as at trial. Jones, 463 U.S. at 751 (quoting
Douglas v. California, 372 U.S. at 358).
Thus, though “the accused has the ultimate
authority to make certain fundamental
decisions regarding the case,... [including]
whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an
appeal,” id. at 751 (citing Sykes, 433 U.S.
at 93, n.1 (Burger, C. J., concurring));
ABA Standards for Criminal Justice 4-5.2,
21-2.2 (2d ed. 1980)), counsel was
constitutionally obligated to advise the
defendant respecting those decisions to
allow for intelligent exercise of the
particular right. See, e.g., Rock v.
Arkansas, 483 U.S. 44 (1987) (right to
testify on one’s behalf); Hill v. Lockhart,
474 U.S. 52 (1985) (guilty plea; waiver of
right to jury trial). Flores-Ortega broke no
new ground in holding the duty to consult
also extended to counsel’s obligation to
advise the defendant of his appellate
rights.
As Justice Souter’s concurring
opinion in Flores-Ortega evidences, this
view comports with the prevailing
professional norms existing in 1987, to the
extent these norms are denoted in the
published standards of the American Bar
Association (“ABA”). Flores-Ortega, 528
U.S. at 490, quoting ABA Standards for
Criminal Justice 21-2.2(b) (2d ed. 1980)
(“Defense counsel should advise a
defendant on the meaning of the court’s
judgment, of defendant’s right to appeal,
and of the probable outcome of
appealing.”). Promulgated in 1980, the
ABA’s standards pre-date Strickland. The
Supreme Court has cited with approval the
use of “[p]revailing norms of practice as
reflected in the American Bar Association
standards and the like... [as] guides to
determining what is reasonable, but only
guides.” Strickland, 466 U.S. at 688;
Flores-Ortega, 528 U.S. at 479. In light of
the foregoing well-settled Supreme Court
precedents respecting the constitutional
standard for appellate representation, we
believe reasonable jurists applying the
Strickland standard to Lewis’s claim
would have concluded that the Court’s
“previous precedents... [did] not simply
‘inform, or even control or govern’ the
analysis, but instead... compel[led] the
rule” in Flores-Ortega. Banks III, 316
F.3d at 234 (quoting Saffle v. Parks, 489
U.S. 484, 491 (1990)) (add’l citation
omitted).
Accordingly, we hold that Flores-
Ortega’s application of the Strickland
standard did not forge new ground or
otherwise impose a new obligation upon
the States in announcing the duty to
consult, and this holding constitutes an

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12
“old” rule which may be retroactively
a p p l i e d t o L e w i s ’ s c l a i m o f
ineffectiveness.9
C. M erits Analysis
1.
Having concluded that the duty to
consult as announced in Flores-Ortega
constitutes an “old” rule for retroactivity
purposes and clearly established law, we
now move to the merits of Lewis’s claim
and consider the second question certified
on this appeal: whether, in light of
Strickland and Flores-Ortega, the state
courts’ application of the rule of
Commonwealth v. Dockins resulted in a
decision that was “contrary to” or involved
an “unreasonable application” of clearly
established federal law. In Williams v.
Taylor, Justice O’Connor, writing for the
majority, held that the terms “contrary to”
and “unreasonable application” have
independent meanings, each of which must
be given effe ct to accord with
congressional intent. 529 U.S. at 407.
Justice O’Connor read “contrary” to
employ its common meaning – that which
is “diametrically different,’ ‘opposite in
character or nature,’ or ‘mutually
opposed,’” id. at 405 – and concluded that
a state-court decision is “contrary to”
clearly established federal law if: (1) “the
state court applies a rule that contradicts
the governing law set forth in [the
Supreme Court’s] cases,” id., or (2) “the
state court confronts a set of facts that are
materially indistinguishable from a
decision of [the Supreme] Court and
nevertheless arrives at a result different
from [the Court’s] precedent.” Id. at 406.
Justice O’Connor found the
“unreasonable application” clause of the
AEDPA “no doubt difficult to define,” id.
at 410, but held generally that this
provision is contravened if “a state-court
decision correctly identifies the governing
legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.”10 Id.
9 The parties do not contest that the
third holding of Flores-Ortega, the
prejudice standard, is an “old” rule and
clearly established law. To show prejudice
under this standard, “a defendant must
demonstrate that there is a reasonable
probability that, but for counsel’s deficient
failure to consult with him about an
appeal, he would have timely appealed.”
528 U.S. at 484. As the Supreme Court
observed, “this prejudice standard breaks
no new ground, for it mirrors the prejudice
inquiry applied in Hill v. Lockhart,
[supra], and Rodriguez v. United States,
[supra].” Id. at 485.
10 Justice O’Connor posited that the
Fourth Circuit’s additional holding that
this clause includes any state-court
decision which “unreasonably extends a
legal principle from our precedent to a new
context where it should not apply (or
unreasonably refuses to extend that
principle to a new context where it should
apply)’... may perhaps be correct, [but
observed] the classification does have

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13
at 407-08. The unreasonableness of a state
court’s decision must be judged from an
objective standard; “a federal habeas court
may not issue the writ simply because that
court concludes in its independent
judgment that the relevant state-court
decision applied clearly established federal
law erroneously or incorrectly. Rather,
t h a t a p p l i c a t i o n m u s t a l s o be
unreasonable.” Id. at 411; Mitchell v.
Esparza, 124 S. Ct. 7, 11 (2003)
(“unreaso nable application” is an
“objectively unreasonable” application of
clearly established law as opposed to
“incorrect”). Finally, we must accept the
factual findings of the state court as
presumptively correct, a presumption the
petitioner may only rebut with clear and
convincing evidence. 28 U.S.C. §
2254(e)(1).
2.
The Pennsylvania courts decided
Lewis’s post-conviction petitions on
independent state law grounds concluding
that his ineffectiveness claim was
governed by Commonwealth v. Dockins.11
Dockins stands for the proposition that
“[t]rial counsel can not be held ineffective
for failing to file an appeal when his client
has not asked him to do so.” Appendix,
Vol. II at 385 (Superior Court PCHA
opinion citing Dockins) (add’l citation
omitted). The dispositive question under
Dockins is whether the defendant directed
his trial counsel to perfect an appeal; the
inquiry begins and ends here. Pursuant to
Dockins, Lewis’s petitions for post-
conviction relief were denied based on the
PCHA court’s conclusion, affirmed by the
Superior Court, that “the Defendant does
have an absolute right to direct appeal, but
they [defendants] must make efforts to
contact an attorney in that respect and I
would submit based on Mr. Elash’s [trial
counsel] testimony and based upon the
lack of any other substantive evidence that
he was not contacted within the 30 day
appeal period and, therefore, that there is a
waiver of the right to direct appeal.”
Appendix, Vol. 1 at 172-73 (emphasis
added). Dockins, then, is a per se rule of
strict application which holds as a matter
of law that counsel acts reasonably in all
cases where a notice of appeal is not filed,
and the defendant is silent. The Supreme
some problems of precision.” Williams,
529 U.S. at 409. Our decision today does
not require that we explore this question.
11 We note that the mere fact that
the Commonwealth courts failed to
mention Strickland is not dispositive of the
question of whether the courts’ decisions
adjudicating Lewis’s claim were contrary
to clearly established federal law. As the
Supreme Court has held, “[a] state court's
decision is not ‘contrary to... clearly
established Federal law’ simply because
the court did not cite our opinions.... [A]
state court need not even be aware of our
precedents, ‘so long as neither the
reasoning nor the result of the state-court
decision contradicts them.’” Esparza, 124
S. Ct. at 10 (quoting Early v. Packer, 537
U.S. 3, 8 (2002)).

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14
Court invalidated a similar rule in Flores-
Ortega. The challenged rule in that case
obligated counsel to file an appeal in all
cases where the defendant had not
expressly instructed that an appeal not be
taken. 528 U.S. at 478. The Court quickly
concluded that the rule, known as the
“Stearns rule,”1 2 was contrary to
Strickland, holding:
Such a rule effectively
imposes an obligation on
counsel in all cases either
(1) to file a notice of appeal,
or (2) to discuss the
possibility of an appeal with
the defendant, ascertain his
wishes, and act accordingly.
We reject this per se rule as
i n c o n s i s t e n t w i t h
Strickland’s holding that
“the performance inquiry
m u s t b e r e a s o n a b l e
c o n s i d e r i n g a l l
circumstances....” [T]hat
alone mandates vacatur and
remand.
Id. (quoting Strickland, 466 U.S. at 688)).
The Dockins rule operates in much the
same manner: whereas the Stearns rule
automatically deemed counsel ineffective
for failing to take an appeal where the
defendant was silent, Dockins holds that
counsel always acts reasonably and may
not be found ineffective in such
circumstances. Whether a rule inures to
the benefit or disadvantage of the
defendant, Strickland does not permit the
imposition of such bright-line rules. As
the Williams Court stressed, “we have
c o n sistently d e c l in e d t o i m p o se
mechanical rules on counsel – even when
those rules might lead to better
representation.... ‘[T]he purpose of the
effective assistance guarantee of the Sixth
Amendment is not to improve the quality
of legal representation... [but rather]
simply to ensure that criminal defendants
receive a fair trial.’” 528 U.S. at 481
(quoting Strickland, 466 U.S. at 689).
Thus, the Pennsylvania courts’ application
of Dockins to Lewis’s ineffectiveness
claims was “contrary to” clearly
established law.
The Commonwealth does not
seriously contest this conclusion. Rather
the Commonwealth contends on brief that
“the state courts found that counsel did
‘consult’ with appellant... [regarding] his
appellate rights.” Appellee Br. at 26.
However, the Commonwealth backed
away from this assertion at oral argument,
conceding that none of the state courts
which reviewed Lewis’s claims during the
two rounds of post-conviction review
made a finding as to whether Lewis’s
court-appointed attorney consulted him
regarding his appellate rights following the
entry of the guilty plea, his sentencing or
the trial judge’s denial of his post-trial
12 See United States v. Stearns, 68
F.3d 328 (9th Cir. 1995).

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15
motion.13 Where the state court has not
made a material finding, the usual course
is to remand to the district court to hold an
evidentiary hearing on the question. See
Solis, 252 F.3d at 294-95 (remanding
under 28 U.S.C. § 2255 for evidentiary
hearing). However, in this case such a
hearing would likely be unproductive as
the relevant events occurred over 16 years
ago. See Riley v. Taylor, 277 F.3d 261,
294 (3d Cir. 2001) (en banc). Further, we
believe the issue of trial counsel’s
representation, following the sentencing
proceeding and the trial judge’s ruling
denying the motion for leave to withdraw
the guilty plea, was sufficiently litigated
during the two evidentiary hearings held
on Lewis’s post-conviction applications in
state court to permit our adjudication of
this question.
Flores-Ortega obligates counsel to
advise “the defendant about an appeal
when there is reason to think either (1) that
a rational defendant would want to appeal
(for example, because there are
nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably
demonstrated to counsel that he was
interested in appealing.” 528 U.S. at 480.
Lewis pleaded guilty and does not seek to
appeal from a jury trial. The Supreme
Court has held this is a “highly relevant
factor” in deciding whether counsel was
duty-bound to advise a defendant about his
appellate rights, though the fact of a guilty
plea is not dispositive. Id. In guilty-plea
cases, our Strickland analysis must
“consider such factors as whether the
defendant received the sentence bargained
for as part of the plea and whether the plea
expressly reserved or waived some or all
appeal rights.” Id. This case is unique in
that whether or not a plea agreement
existed, Lewis is entitled to federal habeas
relief stemming from trial counsel’s failure
to advise him of his right to appeal from
the trial court’s denial of his motion to
withdraw the guilty plea.
Based on our review of the
transcripts of the evidentiary hearings held
in state court, it is clear that Elash did not
meet with Lewis or otherwise attempt to
contact him after the senten cing
proceeding or the post-trial motion was
denied, although Lewis indicated an
interest in challenging his conviction. At
best, Elash could only recall speaking
briefly with Lewis in court following
sentencing, stating, “I know he was upset,
13 The Superior Court’s PCHA
opinion mentions that “[t]rial counsel
admitted discussing possible grounds for
appeal and mentions that none of the
grounds were of appellate merit.”
Appendix, Vol. II at 385. Trial counsel
testified at the PCHA hearing that “I know
he [Lewis] was upset [after he was
sentenced], but I do have a recollection of
telling him that he probably didn’t have
any appellate rights that were viable.” Id.
at 163. Counsel for the Commonwealth
conceded at oral argument that this
testimony is ambiguous at best and could
not support a finding that trial counsel
consulted with Lewis within the meaning
of Flores-Ortega, and the Pennsylvania
courts did not make such a finding.

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16
but I do have a recollection of telling him
that he probably didn’t have any appellate
rights that were viable.” Appendix, Vol. 1
at 163. Regarding Lewis’s attempts to
contact him after the sentencing and the
post-trial motion was denied, Elash
testified, “I don’t have those records. You
know, if he did, I wouldn’t – he may
have... he might have had trouble getting
in touch with me.” Id. It is not clear from
the hearing transcripts whether Elash was
aware that Lewis had filed a motion pro se
to withdraw the guilty plea, but the motion
was entered on the trial docket and Elash
should have been aware of it. See id. at
105. In any case, Elash testified that he
filed the motion to withdraw only after
Lewis instructed him to do so, apparently
by correspondence. Id. at 162. At a
minimum, this should have put Elash on
notice that Lewis may have been interested
in appealing the trial judge’s ruling and his
conviction. See Flores-Ortega, 528 U.S.
at 480 (citation omitted) (instructing
“courts must take into account all the
information counsel knew or should have
known”).
Trial counsel’s testimony, coupled
with the bare-boned post-trial motion14 to
withdraw the guilty plea that he filed 28
days late, evidences an inattention to his
client’s interests, a neglect which caused
Lewis to forfeit his right of appeal. While
trial counsel’s testimony alone supports
this finding, our decision is further
buttressed by the contemporaneous
evidence of Lewis’s attempt to timely
assert his appellate rights. The trial judge
denied the post-trial motion filed by Elash
on April 16, 1987, and Lewis’s time to
appeal expired 30 days later on May 16,
1987. On May 3, 1987, Lewis wrote to the
Clerk of the Court stating, “[s]ince my
sentence of 30 to 60 years on March 3,
1987, I have received no correspondence
from John Elash[,] Esq. my attorney at
hand, and I have no idea, what is
happening, or what will happen. So im
[sic] asking for an extension of time, to
prepare my case in the proper order, and
14 The motion Elash filed on
Lewis’s behalf was three sentences in
length and, as the basis for the motion,
stated only that “Defendant avers that his
plea was not knowingly or intelligently
entered.” Appendix, Vol. 1 at 87. No
factual predicate was established nor legal
authority cited. Conversely, in his pro se
motion, Lewis alleged his plea was invalid
“due to inducement of promise from
Defendant[’]s attorney to combine all
charges as one (1) for one (1) lesser
sentence,” and ineffective assistance
resulting from trial counsel “not raising or
arguing” to enforce the plea agreement and
advising him to plead guilty. Id. at 84.
Even if trial counsel believed any post-trial
motion or appeal would be frivolous, his
proper course would have been to follow
the procedures set forth in Anders v.
California, 386 U.S. 738 (1967), or
Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981), and seek permission to
withdraw from the case after giving notice
to Lewis of his intention.

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17
without any knowledge of the legal
system.” Appendix, Vol. 1 at 92. In June
of 1987, Lewis also wrote letters to the
Pennsylvania State Bar Association and
the Disciplinary Counsel reporting Elash
for alleged misconduct in the handling of
his case and complaining that he had not
heard from Elash since the sentencing,
despite attempts to contact him. Id. at 94-
95. Finally, on July 13, 1987, Lewis wrote
to the Clerk of the Court requesting
information about “the present state, of
any appeal you may have submitted to the
Court in my behalf, and who is the lawyer
of record.” Id. at 96.
We believe this record compels a
finding that trial counsel’s conduct was
objectively unreasonable. We can think of
no strategic reason to explain why Elash
failed to follow-up with Lewis either
following the sentencing or after the trial
court denied the motion to withdraw, and
the Commonwealth offers none. The
ultimate decision to appeal rests with the
defendant. Jones, 463 U.S. 745. Thus,
even if Elash concluded that any appeal
would be frivolous, he could not disregard
the evidence of Lewis’s unequivocal desire
to challenge his sentence and guilty plea,
and abandon his client at this critical stage
in the proceedings. See Evitts, 469 U.S. at
394 (counsel’s procedural error depriving
the defendant of his appeal rights “difficult
to distinguish... from that of some who had
no counsel at all”), citing Anders, 386 U.S.
738 (add’l citation omitted).
Finally, we hold that Lewis has
demonstrated that there is a reasonable
probability that, but for counsel’s deficient
performance, he would have appealed.
Flores-Ortega, 528 U.S. at 484. The
contemporaneous evidence of Lewis’s
desire to challenge his conviction satisfies
this requirement. In addition, Lewis has
also identified nonfrivolous points to raise
on an appeal, among them ineffective
assistance of counsel resulting from (1)
trial counsel’s failure to object and move
to enforce the alleged plea agreement
when he was sentenced to consecutive
terms of 5 to 10 years of imprisonment on
the six robbery counts rather than to
concurrent terms, and (2) trial counsel’s
failure to timely move to withdraw the
guilty plea when he did not get the benefit
of the alleged plea agreement.15 See id. at
486 (“showing nonfrivolous grounds for
appeal may give weight to the contention
that the defendant would have appealed”).
Lewis may raise these and all other claims
on his direct appeal.
III. CONCLUSION
The district court’s order denying
the petition for a writ of habeas corpus is
reversed. This matter is remanded to the
15 We note that although Lewis was
facing 10 to 20 years on each robbery
count, a decision to withdraw the guilty
plea under the facts of this case would not
have been objectively irrational. Lewis
was 36 years old and did not have a prior
record when he was convicted and
sentenced to 30 to 60 years of
incarceration.

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18
district court with instructions that it issue
a writ of habeas corpus conditioned upon
the Commonwealth’s reinstatement of
Lewis’s right of first appeal within 45 days
from entry of the district court’s order
granting the petition.

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