“No Pro Se Penalty” After Abandonment: Third Circuit Extends Martinez to Self‑Represented PCRA Filings and Finds Ineffective Assistance for Misclassifying § 922(g)(1) Under Pennsylvania Guidelines

Introduction

In a precedential decision authored by Judge Ambro, the U.S. Court of Appeals for the Third Circuit clarified a recurring and consequential question in federal habeas practice: may a state prisoner invoke the equitable rule of Martinez v. Ryan to excuse a procedural default when, after court‑appointed postconviction counsel abandons him, he proceeds pro se and fails to plead a trial‑counsel ineffectiveness claim? The Court’s answer is yes. Framing its holding in equitable terms and grounded in Martinez’s core concern—ensuring a meaningful forum for potentially meritorious trial‑counsel claims—the Third Circuit held that a pro se filing following abandonment does not foreclose Martinez cause.

The case involves appellant Roy Moses, who was convicted in 2015 of Pennsylvania drug offenses and sentenced using the state’s sentencing guidelines. At sentencing the court treated Moses’s prior federal felon‑in‑possession conviction under 18 U.S.C. § 922(g)(1) as equivalent to Pennsylvania’s felon‑in‑possession statute, 18 Pa.C.S. § 6105, thereby counting it as a qualifying predicate toward the “Repeat Felony 1/Felony 2 Offender” (RFEL) category. Trial counsel did not object. On state collateral review (PCRA), appointed counsel filed an amended petition but then failed to respond to a Rule 907 notice—effectively abandoning Moses—leaving Moses to respond pro se. The PCRA court dismissed. In federal habeas, Moses alleged ineffective assistance of trial counsel for failing to challenge his Prior Record Score (PRS) and invoked Martinez to excuse the PCRA default. The district court rejected Martinez because Moses had filed something pro se in the PCRA proceeding.

The Third Circuit reversed. It held that Martinez applies when a prisoner proceeds pro se after postconviction counsel abandons him; that Moses’s default was caused by constitutionally ineffective PCRA counsel; that his underlying trial‑counsel ineffectiveness claim is substantial and meritorious; and that habeas relief is warranted limited to resentencing.

Summary of the Opinion

Martinez applies despite a pro se filing after abandonment: The Court expressly holds that a prisoner who proceeds pro se in the initial‑review collateral proceeding—at least when his lawyer abandons him—may invoke Martinez to excuse a procedural default of an ineffective‑assistance‑of‑trial‑counsel claim. The district court’s contrary view “collides head‑on” with Martinez’s rationale.
Default excused under Martinez: The Court applies the Cox v. Horn three‑part framework and finds:
- The default occurred in the initial‑review collateral proceeding (undisputed).
- PCRA counsel’s ineffective assistance caused the default (abandonment and failure to raise an obvious claim).
- The underlying trial‑counsel claim is substantial (indeed, meritorious).
Merits—ineffective assistance at sentencing: Trial counsel was constitutionally deficient for failing to challenge the PRS calculation. § 922(g)(1) is not “substantially identical” to § 6105 under Pennsylvania’s elements‑based equivalency test; with the federal offense’s “grade” unknown, it should have been treated as a third‑degree felony (F3), contributing one point rather than two and removing Moses from RFEL. There is a reasonable probability the guidelines range would have been lower and the sentence different, satisfying Strickland prejudice.
Remedy: The Third Circuit reverses and remands with instructions to grant a writ of habeas corpus limited to resentencing.

Background and Procedural History

Trial and Sentencing (2015)

Moses was convicted of drug offenses in the Philadelphia Court of Common Pleas. The court assigned an Offense Gravity Score (OGS) of 11 and, agreeing with the Commonwealth and defense counsel, placed him in the RFEL category by counting:

Four points for a 1998 first‑degree robbery (F1); and
Two points for a 2003 federal felon‑in‑possession conviction under § 922(g)(1), treated as the equivalent of Pennsylvania’s § 6105 (an F2).

With OGS 11 and RFEL, the guidelines recommended a minimum term of 84–102 months (±12). The court imposed 72–144 months, explicitly crediting one year for time served attributable to a bail revocation oversight, and revealing an apparent anchor at the bottom of the guidelines range.

PCRA Proceedings and Abandonment (2018)

Proceeding under Pennsylvania’s PCRA, Moses obtained appointed counsel, who filed an amended petition but then failed to respond to the court’s Rule 907 notice of intent to dismiss. Moses—effectively abandoned—filed a pro se response. The petition was dismissed; the Superior Court affirmed.

Federal Habeas (2021) and District Court Ruling

In § 2254 proceedings, Moses argued that trial counsel was ineffective for not challenging the PRS calculation and invoked Martinez to excuse the PCRA default. A magistrate judge and the district court rejected Martinez on the sole ground that Moses had filed a pro se PCRA response without including the claim. The district court denied a certificate of appealability; the Third Circuit granted one on Martinez and the merits.

Analysis

Precedents Cited and How they Shaped the Decision

Martinez v. Ryan, 566 U.S. 1 (2012): The centerpiece. Martinez allows federal courts to excuse procedural defaults of trial‑counsel ineffectiveness claims when ineffective assistance in the initial‑review collateral proceeding (or no counsel) caused the default. The Third Circuit’s contribution here is to confirm that a prisoner’s pro se filing after counsel’s abandonment does not negate Martinez cause. The decision is expressly “equitable,” designed to ensure at least one meaningful opportunity to present a substantial trial‑counsel claim.
Coleman v. Thompson, 501 U.S. 722 (1991): Supplies the underlying cause‑and‑prejudice architecture for procedural default. Martinez carves an equitable exception to Coleman for initial‑review collateral proceedings involving trial‑counsel claims.
Cox v. Horn, 757 F.3d 113 (3d Cir. 2014): Articulates the Third Circuit’s three‑condition test for Martinez: (1) ineffectiveness of PCRA counsel caused the default; (2) the default occurred in the initial‑review collateral proceeding; and (3) the trial‑counsel claim is “substantial.”
Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750 (3d Cir. 2018): Emphasizes that Martinez protects a prisoner’s “one meaningful opportunity” to present ineffective‑assistance‑of‑trial‑counsel claims and excuses defaults where PCRA counsel missed a substantial, obvious sentencing issue—paralleling Moses’s case.
Marsalis v. Pa. Dep’t of Corr., 37 F.4th 885 (3d Cir. 2022): Left open whether Martinez applies when a prisoner fires counsel and proceeds pro se; Moses resolves a nearby but distinct issue—pro se filings after abandonment do not bar Martinez.
Walker v. Martin, 562 U.S. 307 (2011); Glenn v. Wynder, 743 F.3d 402 (3d Cir. 2014); Wenger v. Frank, 266 F.3d 218 (3d Cir. 2001): Frame exhaustion and procedural default principles, including futility and independent and adequate state ground doctrines.
Gray v. Netherland, 518 U.S. 152 (1996): Confirms that exhaustion is satisfied when state remedies are no longer available; relevant because Moses’s PCRA window had closed.
Strickland v. Washington, 466 U.S. 668 (1984): Governs ineffective assistance claims: deficient performance and prejudice.
United States v. Otero, 502 F.3d 331 (3d Cir. 2007); Jansen v. United States, 369 F.3d 237 (3d Cir. 2004); United States v. Mannino, 212 F.3d 835 (3d Cir. 2000): Counsel performs deficiently by failing to object to an improper sentencing enhancement or to raise readily available, favorable legal authority; non‑objection is typically not a reasonable strategy.
Molina‑Martinez v. United States, 578 U.S. 189 (2016); United States v. Hester, 910 F.3d 78 (3d Cir. 2018); United States v. Zabielski, 711 F.3d 381 (3d Cir. 2013); United States v. Raia, 993 F.3d 185 (3d Cir. 2021); United States v. Smalley, 517 F.3d 208 (3d Cir. 2008); Glover v. United States, 531 U.S. 198 (2001): Establish that guideline miscalculations typically demonstrate prejudice because sentences are anchored to the range, and any unjustified increase in a custodial term is constitutionally significant.
Key Pennsylvania decisions on equivalency:
- Commonwealth v. Jemison, 98 A.3d 1254 (Pa. 2014): The Pennsylvania Supreme Court recognized that § 6105’s predicate offense is an essential element of that crime; this “highly relevant” difference from § 922(g)(1) (which uses a broader disqualifier) means the statutes are not “substantially identical in nature and definition.”
- Commonwealth v. Spenny, 128 A.3d 234 (Pa. Super. Ct. 2015): Establishes an elements‑based equivalency test and instructs courts to treat out‑of‑state convictions with an unknown felony “grade” as F3 for PRS purposes.
- Commonwealth v. Keiper, 887 A.2d 317 (Pa. Super. Ct. 2005): Earlier Superior Court view that a § 6105 predicate is a “precondition,” not an element; Moses recognizes Jemison as superseding in relevant respects.
- Commonwealth v. Patterson, 304 A.3d 782 (Pa. Super. Ct. 2023) (Table): Superior Court panels have tried to distinguish Jemison as non‑sentencing; the Third Circuit deems that distinction unpersuasive in predicting how Pennsylvania’s high court would rule.
- Commonwealth v. Bolden, 532 A.2d 1172 (Pa. 1987): Supports the elements‑only approach to equivalency, with facts considered later, if at all, for grading after a substantial‑identity match is found.
State and federal statutes and guidelines applied: 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1); 18 Pa.C.S. §§ 1103, 6105; 35 P.S. § 780‑113; 42 Pa.C.S. §§ 9545(b), 9756(b); 204 Pa. Code §§ 303.3, 303.4, 303.7, 303.8(d)(2), 303.8(f)(1), 303.8(f)(3), 303.9(e), 303.16(a).

Legal Reasoning

1) Martinez applies after abandonment even if the petitioner filed pro se

The district court reasoned that because Moses filed a pro se response to the PCRA court’s Rule 907 notice that did not include the trial‑counsel claim, he could not rely on Martinez. The Third Circuit rejected that rule as “collid[ing] head‑on with Martinez.” Martinez’s premise is that a prisoner is likely “unlearned in the law” and needs effective counsel to present a trial‑counsel claim at the only stage it can be heard. Denying Martinez’s equitable safety valve because a prisoner did exactly what abandonment forces him to do—proceed alone—would gut that protection. The Court therefore held that where appointed postconviction counsel abandons a petitioner, a pro se filing in the initial‑review collateral proceeding does not foreclose Martinez cause.

Notably, the Court limited its holding to abandonment situations (“at least when his lawyer abandons him”), leaving for another day scenarios in which a petitioner affirmatively discharges counsel and elects to proceed pro se.

2) Default excused under Cox’s three conditions

Initial‑review stage: The default indisputably occurred at the first PCRA proceeding, where Pennsylvania law channels trial‑counsel ineffectiveness claims.
Substantial underlying claim: The Court found the trial‑counsel claim not only debatable among reasonable jurists but correct on the merits.
Cause attributable to PCRA counsel: Given the strength and obviousness of the PRS error, PCRA counsel’s failure to raise it—compounded by abandonment—was deficient and caused the default.

3) Trial counsel was ineffective at sentencing; prejudice shown

The Court held that trial counsel performed deficiently by failing to object to the PRS computation that treated § 922(g)(1) as equivalent to § 6105. Under Pennsylvania’s elements‑based equivalency test (Spenny; Bolden), § 922(g)(1)’s status element (“crime punishable by more than one year”) materially differs from § 6105’s enumerated‑offense element. The Pennsylvania Supreme Court’s decision in Jemison confirms that the § 6105 predicate offense is an element, not a mere precondition. Because the federal offense lacked a substantially identical Pennsylvania counterpart and its “grade” could vary (10‑year maximum in § 924(a)(2) absent ACCA; 15‑year minimum under ACCA), it must be treated as an F3 under 204 Pa. Code § 303.8(d)(2) and (f)(3).

Reclassifying the § 922(g)(1) conviction to F3 contributes only one PRS point, not two, and knocks Moses out of RFEL status to a PRS of 5. With OGS 11, the guidelines range would have been 72–90 months—twelve months lower at both ends than the 84–102 month range applied. The sentencing transcript signaled the court anchored the minimum term at the bottom of the range, then deducted the one‑year credit to reach 72 months, doubling to 144 for the maximum consistent with Pennsylvania’s minimum‑maximum rule. Under Molina‑Martinez and related Third Circuit precedent, this anchoring suffices to show a reasonable probability of a different outcome. Any extra time in custody is constitutionally significant (Glover).

Impact

A. Habeas practice and Martinez in the Third Circuit

Clarified scope of Martinez: District courts within the Third Circuit (Pennsylvania, New Jersey, Delaware, Virgin Islands) may not deny Martinez cause merely because a petitioner filed a pro se PCRA submission after appointed counsel abandoned the case. The decision reinforces Martinez’s equitable core: protect a prisoner’s one meaningful opportunity to present a substantial trial‑counsel claim.
Abandonment matters: The opinion expressly ties its holding to “abandonment.” Future litigation will likely explore what conduct constitutes abandonment (e.g., failing to respond to critical orders; missing deadlines; ceasing communication; filing nothing substantive). The decision leaves open whether a prisoner who voluntarily proceeds pro se can invoke Martinez.
Practical effect: Petitioners whose PCRA lawyers disappeared or failed to pursue obvious claims will have a clearer path to federal merits review of trial‑counsel ineffectiveness. District courts should focus on counsel’s performance at the initial‑review stage, not on the petitioner’s pro se efforts.

B. Pennsylvania sentencing and defense practice

Equivalency and PRS scoring: The Third Circuit’s predictive reading of Pennsylvania law sends a strong signal: federal § 922(g)(1) is not “substantially identical” to § 6105 for PRS equivalency. When the grade is uncertain or variable, § 922(g)(1) should be treated as an F3 for PRS purposes, contributing one point and not supporting RFEL classification.
Ineffective assistance benchmark: Failing to raise an obvious, readily supported PRS objection grounded in Jemison and Spenny is likely deficient under Strickland. Defense counsel should examine equivalency issues carefully and object to RFEL determinations that rely on out‑of‑state or federal offenses with non‑matching elements.
Resentencing remedies: Even where the ultimate sentence imposed falls within what would have been the correct range, guideline miscalculations can still demonstrate prejudice because of the anchoring effect. Counsel should build a record on how the court arrives at its minimum term to preserve prejudice arguments.

C. Open questions

How broadly will “abandonment” be defined in future cases? The opinion’s facts (failure to respond to a Rule 907 notice) are clear, but the doctrine will be refined as different patterns arise.
What if the prisoner affirmatively chooses to proceed pro se in PCRA while competent counsel remains available? The Court did not answer that question.
To what extent will Pennsylvania appellate courts address the tension between Jemison and Superior Court decisions like Patterson in the sentencing context? While the Third Circuit predicts the Pennsylvania Supreme Court’s approach, state courts may clarify directly.

Complex Concepts Simplified

Procedural default vs. exhaustion: Before seeking federal habeas relief, a prisoner must first present claims to state courts (exhaustion). If the claim was not presented and state rules now prevent raising it (e.g., PCRA time bar), the claim is “procedurally defaulted.” Federal courts can still hear such a claim if the petitioner shows “cause” for the default and “prejudice” from the violation.
Martinez v. Ryan: An equitable doctrine allowing “cause” where the defaulted claim is ineffective assistance of trial counsel and the failure to raise it in the first postconviction proceeding was due to ineffective (or absent) counsel.
Abandonment: When appointed postconviction counsel effectively stops representing the client (for example, by failing to respond to critical court orders), forcing the prisoner to proceed alone.
Strickland test: To prove ineffective assistance of counsel, a defendant must show deficient performance (errors no reasonable attorney would make) and prejudice (a reasonable probability of a different outcome without the errors).
Pennsylvania sentencing basics: The guidelines use an Offense Gravity Score (how serious this crime is) and a Prior Record Score (how serious past convictions are) to produce a recommended range for the minimum term. Career‑offender categories (like RFEL) can elevate the PRS and increase the range.
Equivalency and grading: For out‑of‑state or federal convictions, Pennsylvania compares statutory elements to identify a “substantially identical” state offense. If no exact equivalent exists and the maximum penalty varies, the prior is treated as an F3 for PRS scoring.
Anchoring effect and prejudice: Sentencing courts often anchor decisions to the guideline range. A miscalculated range can influence the sentence even if the final term falls inside the correct range, which is why such errors commonly establish prejudice.

Practice Pointers

For PCRA counsel: Respond to Rule 907 notices and preserve substantial trial‑counsel claims—particularly sentencing errors supported by controlling authority. Inaction can constitute abandonment and trigger Martinez.
For trial counsel: Vet out‑of‑state/federal priors under an elements‑only test. Do not stipulate to RFEL classifications without verifying equivalency and felony “grade” under 204 Pa. Code § 303.8. Cite Jemison and Spenny where appropriate.
For habeas counsel: Where PCRA counsel abandoned a petitioner or missed an obvious claim, expressly invoke Martinez and build the record on (a) abandonment/deficiency and (b) prejudice, using Molina‑Martinez to establish the anchoring effect.
For prosecutors: Be prepared to defend PRS classifications with an elements‑based analysis. Reliance on fact‑specific overlap or “precondition” labels for § 6105 predicates will face headwinds after Moses.

Conclusion

Roy Moses v. District Attorney Philadelphia is a significant clarification of Martinez in the Third Circuit: a prisoner does not forfeit Martinez’s equitable protection merely by filing pro se after PCRA counsel’s abandonment. The Court reaffirms that the focus must remain on counsel’s performance at the initial‑review stage, not on the forced pro se efforts of an “unlearned” prisoner.

On the merits, the decision offers a careful and persuasive application of Pennsylvania’s elements‑based equivalency framework: § 922(g)(1) is not substantially identical to § 6105, and where the federal offense’s “grade” is unknown or variable, it must be treated as an F3 for PRS purposes. Failing to press that readily available argument is deficient, and given the anchoring effect of the guidelines, prejudicial.

The upshot is twofold. Procedurally, the Third Circuit has closed a gap in Martinez jurisprudence by adopting a “no pro se penalty” rule when the petitioner has been abandoned by PCRA counsel. Substantively, the Court sets a clear benchmark for effective sentencing advocacy under Pennsylvania’s guidelines when federal priors are in play. Together, these holdings ensure that prisoners with substantial Sixth Amendment claims receive the meaningful review Martinez promises and that sentences rest on correctly calculated guidelines.