Whether a defendant's waiver of post-conviction relief rights was entered knowingly, intelligently and voluntarily

QUESTIONS PRESENTED The Court has made clear that a defendant’s waiver of a constitutional right is valid only if entered knowingly, intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709 (1969); Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019 (1938). The Court has also held that waivers of statutory rights can be invalid if unknowingly or involuntarily entered. Town of Newtown v. Rumery, 480 U.S. 386, 393, 107 S. Ct. 1187 (1987); see Shutte v. Thompson, 82 U.S. (15 Wall.) 151, 21 L. Ed. 123 (1873)). In this case, Petitioner filed a state post-conviction action asserting that he had entered a waiver of his post-conviction relief rights (statutory rights, see 42 Pa.C.S. § 9541 et seq.) unknowingly and involuntarily. The state court held a hearing. But no evidence was presented. Upon information and belief, Petitioner’s filings averred that he had entered the waiver while on suicide watch and after being told by his attorneys that he was not permitted to view the mitigating evidence they would present at sentencing to avoid the death penalty, that he would be able to file post-conviction action despite the waiver, and that he should answer “yes” to the court’s questions about whether he understood the consequences of entering the waiver. The state courts ruled Petitioner’s waiver was knowing and voluntarily entered without reference to any of these facts, listing only what Petitioner said—as coached by his attorneys—in open court in response to the court’s questions. The first question before the Court, then, is whether the district erred in failing to find that the state court entered a decision that was an unreasonable in light of the full record. An attendant question is whether the circuit court erred in failing to find that the district court’s ruling was at least debatable and worthy of a certificate of appealability. This Court has held that, although a guilty plea prevents a defendant from challenging alleged constitutional rights occurring before entry of the plea, a defendant may challenge the plea on the grounds that he entered it as the result of ineffective assistance of counsel concerning the plea. Tollet v. Henderson, 411 U.S. 258, 266-67, 93 S. Ct. 1602 (1973); McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441 (1970)). Building on that principle, circuit courts have held that even an otherwise valid post-conviction relief waiver does not preclude a claim that counsel was ineffective in the conduct leading a defendant to enter the waiver. E.g., United States v. Bragg, 554 Fed. Appx. 781, 782 (10" Cir. 2014); Hurlow v. United States, 726 F.3d 958, 964 (7" Cir. 2013). This Court has not addressed that particular important question. In this case, Petitioner presented his federal habeas petition with a claim that he entered the post-conviction action waiver unknowingly and under duress as a result of his trial counsel’s ineffectiveness. And yet the district court denied relief on the grounds that the post-conviction waiver precluded Petitioner’s claim challenging the waiver, and the Third Circuit affirmed, finding no debatable question despite circuit case law to the contrary. The second question before the Court is whether a petitioner may challenge an otherwise valid post-conviction waiver in an post-conviction action on the grounds that it was entered as the result of ineffective assistance. If not clearly the case, the ancillary question is whether the issue was at least debatable. i