1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-30-1994

Zilich v. Superint. Reid

Precedential or Non-Precedential:

Docket 93-3459

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Recommended Citation

"Zilich v. Superint. Reid" (1994). 1994 Decisions. Paper 146.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/146
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 93-3459 

 

 WAYNE ZILICH, 

 

 Appellant 

v. 

 SUPERINTENDENT REID, CHARLES JOHNS 

 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

 

 (D. C. Civil No. 90-167 Erie) 

 Argued August 11, 1994 

 Before: MANSMANN, COWEN and McKEE, Circuit Judges 

 (Opinion filed: September 30, 1994) 

 

 OPINION OF THE COURT 

 

 THOMAS S. WHITE, ESQ. 

 W. PENN HACKNEY, ESQ. 

 JAY J. FINKELSTEIN, ESQ. (ARGUED) 

 Federal Public Defender 

 113 West 9th Street 

 Plaza 9 

 Erie, PA 16501 

 Attorneys for Appellant
 WILLIAM R. CUNNINGHAM, ESQ. (ARGUED) 

 District Attorney 

 Erie County 

 Erie County Court House 

 Erie, PA 16501 

 Attorney for Appellee

McKEE, Circuit Judge

 The defendant appeals from the district court's denial of 

his petition for a writ of habeas corpus under 28 U.S.C. §2254 in 

which he challenges the validity of a guilty plea that he entered 

in state court. Because we conclude that the unique 

circumstances of this case require that the defendant be afforded 

an opportunity for a hearing to resolve a factual dispute, we 

will vacate the order of the district court denying the writ of 

habeas corpus without a hearing and remand this case to the 

district court for an evidentiary hearing. 

 I. FACTUAL AND PROCEDURAL HISTORY

 Wayne Zilich was charged with numerous offenses in state 

court in June of 1983 in connection with his alleged sexual 

molestation and rape of his daughter who was then approximately 

five and a half years old. On November 15, 1983, Zilich waived 

his right to a jury trial and the case was assigned to an Erie 

County Court of Common Pleas Judge who scheduled a bench trial 

for March 6, 1984. Before the start of trial Zilich entered into 

an oral plea agreement under which he agreed to plead guilty to 

one count of indecent assault and one count of corruption of a 

minor in exchange for the remaining charges being withdrawn. 
During the resulting guilty plea colloquy Zilich affirmed that no 

promise had been made as to the probable sentence of the court, 

and that no promise or threats of any kind had been offered to 

encourage him to plead guilty. Following the colloquy the plea 

was accepted and a date was given for sentencing. 

 Before sentencing, however, Zilich filed a petition to 

withdraw his guilty plea. In that petition he asserted his 

innocence and alleged that he had entered his plea of guilty only 

because his attorney had promised him a sentence of probation in 

exchange for paying a $4,000 bribe to the trial judge. After the 

defendant petitioned to withdraw his plea, trial counsel was 

granted leave to withdraw, new counsel was appointed, and several 

hearings were held in the Erie County Court of Common Pleas.1 

 During the various hearings, Zilich testified about 

conversations he had with his trial attorney in which he had 

purportedly been guaranteed probation in return for paying the 

alleged $4,000 bribe to the judge. Zilich testified that he 

agreed to pay his trial attorney $10,000 to represent him, and an 

additional $4,000 for the bribe. Zilich also testified he had 

made tape recordings of conversations with his trial attorney in 

which the bribe was discussed. 

 During one of the hearings Zilich introduced the testimony 

of a paralegal who had worked in the office of Zilich's trial 

counsel. The paralegal testified that she had heard Zilich tell 

 

 1 In all, six hearings were held on Zilich's petition to 

withdraw his guilty plea. 
his attorney that he (Zilich) wished to withdraw his guilty plea, 

that the attorney told Zilich he would take care of it, and that 

the attorney guaranteed Zilich probation. She noted that this 

guarantee surprised her because the charges were very serious. 

She further testified that Zilich had paid his trial attorney 

$10,000 to represent him, but that the attorney had subsequently 

requested an additional $4,000. 

 Zilich also produced the testimony of his wife who testified 

that she had overheard a conversation in the hallway of the 

courthouse on the day of trial. According to her testimony, 

Zilich's trial attorney told Zilich he would get probation if he 

pled guilty. She added that during that conversation the attorney 

told Zilich not to tell the judge that there was a plea bargain. 

Additional portions of her testimony also corroborated prior 

testimony that tape recordings had been made of conversations 

between her husband and his attorney.2 

 Zilich also produced the testimony of Bradley Foulk, Esq., 

an attorney who had been associated with Zilich's trial attorney. 

Foulk testified that on the day the plea was entered he overheard 

trial counsel tell Zilich not to worry. He further testified that 

he had no knowledge of any bribe or any allegations of a bribe, 

but confirmed that Zilich had claimed to have made recordings of 

conversations between himself (Zilich) and his trial attorney. 

 

 

2 The evidence about these tape recordings was conflicting. 

There was also testimony which tended to establish that these 

tapes, if they had ever existed, had been lost. Still other 

testimony challenged the existence of any such tapes. 
 During the course of the hearings, Zilich's trial attorney 

took the witness stand and denied all of the defendant's 

accusations. 

 Before the conclusion of the last hearing, the judge who had 

accepted the guilty plea granted a defense motion for recusal and 

the remaining hearings were held before a second judge. On June 

24, 1985, the second judge granted Zilich's petition to withdraw 

his guilty plea, however, the judge did not rule upon any of the 

defendant's allegations. Instead, the judge granted the petition 

solely because the defendant was asserting his innocence before 

sentencing, and because the judge concluded that the prosecution 

had not established substantial prejudice.3 Commonwealth v. 

Zilich, No. 841 of 1983, (C.P. Erie, June 24, 1985). 

 On March 11, 1987, the Superior Court of Pennsylvania 

reversed, reinstated Zilich's guilty plea, and remanded the case 

to the common pleas court for sentencing. The Superior Court held 

that the trial court had erred in ruling that the Commonwealth 

had failed to meet its burden of establishing it would be 

substantially prejudiced by a retrial. Commonwealth v. Zilich, 

No. 00668 Pittsburgh, 1986 (Pa.Super., March 11, 1987). Thus, 

neither court ever ruled upon the substance of Zilich's assertion 

that he had tendered his guilty plea only because he believed he 

would get probation. On remand Zilich was sentenced to three and 

one-half to seven years imprisonment on the charges to which he 

had plead guilty. 

 

 

3 See Commonwealth v. Neely, 449 Pa. 3, 295 A. 2d 75 (1972). 
 A. THE FEDERAL HABEAS PETITIONS

 In May of 1990, Zilich filed a civil rights action in the 

Western District of Pennsylvania and he thereafter filed a 

petition for a writ of habeas corpus alleging, inter alia, that 

he had entered his guilty plea only because of his attorney's 

promise of probation in exchange for the alleged bribe, and that 

the plea was therefore involuntary. Both matters were treated as 

a habeas corpus petition. The district court denied relief 

without a hearing and this appeal ultimately followed.4 

 The substance of the defendant's argument on appeal is that 

the district court erred in denying his petition without a 

hearing. 

 

 

4 The district court referred the original petition to a 

magistrate judge who thereafter filed a Report and Recommendation 

on January 7, 1991, in which it was recommended that the writ be 

denied because Zilich failed to exhaust his state remedies. On 

March 12, 1991, the district court adopted the Report and 

Recommendation, denied the petition for habeas relief and 

recommended that a certificate of probable cause be denied. 

Zilich then filed an appeal to this Court which entered an Order 

on August 7, 1991, remanding the matter to the district court for 

further proceedings. 

 On July 21, 1993, a Report and Recommendation was again 

filed by the magistrate judge. In that Report the magistrate 

judge concluded that, based upon his review of the transcripts 

from the state proceedings, the guilty plea had been voluntarily 

entered. The report recommended that the petition be dismissed 

with no further evidentiary hearing. The district court adopted 

the Report and Recommendation as its opinion and denied a 

certificate of probable cause. Zilich filed an appeal from that 

determination followed by a request and a supplemental request 

for a certificate of probable cause. On February 17, 1994, we 

granted Zilich's request for a certificate of probable cause. 
 II. DISCUSSION

A.

 In Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991), we 

summarized the scope of our review of a district court decision 

denying a habeas petition without a hearing: 

 Our scope of review is limited as 

we sit not to retry state cases de 

novo but rather to examine the 

proceedings in the state court to 

determine if there has been a 

violation of federal constitutional 

standards. . . . Where, as here, a 

district court has denied a 

petition for habeas corpus without 

holding an evidentiary hearing, our 

review consists of a two-step 

analysis. First, we must determine 

whether the petitioner has alleged 

facts that, if proved, would 

entitle him to relief. If so, we 

must then decide whether an 

evidentiary hearing is necessary to 

establish the truth of those 

allegations. 

923 F.2d at 291. (citations omitted). Our review of the district 

court's decision here is plenary, as the dismissal of the habeas 

petition was based on the state court record, and not upon 

independent fact finding by the district court. Id. at n. 5; 

Lesko v. Lehman, 925 F.2d 1527, 1536 (3d Cir. 1991). 

 The Commonwealth argues that the defendant has been afforded 

an evidentiary hearing as the magistrate judge reviewed all of 

the transcripts from the numerous hearings that occurred in state 

court before recommending that the defendant's petition be 

denied. However, it is undisputed that no fact finder has ever 

entered any findings of fact regarding the defendant's 
allegations that his guilty plea was induced by a promise of 

probation in return for bribing the trial judge. 

B. 

 The determination of whether a guilty plea is "voluntary" 

for purposes of the U.S. Constitution is a question of federal 

law, but the determination of the historical facts surrounding 

the plea bargain is subject to the deferential "presumption of 

correctness" of 28 U.S.C. §2254(d). Marshall v. Lonberger, 459 

U.S. 422, 431, 103 S.Ct. 843, 849, 74 L. Ed.2d 646 (1983).5

 A habeas petitioner challenging the voluntary nature of his 

or her guilty plea faces a heavy burden. The plea colloquy is 

designed to uncover hidden promises or representations as to the 

consequences of a guilty plea. It can hardly be gainsaid that 

declarations made under oath ought not to be lightly cast aside. 

Zilich testified during his plea colloquy that no promises of any 

sentence and no "deals" had been made to induce him to waive his 

right to trial and plead guilty. "[T]he representations of the 

defendant, his lawyer, and the prosecutor at [a plea] hearing, as 

well as any findings made by the judge accepting the plea, 

constitute a formidable barrier in any subsequent collateral 

proceedings. Solemn declarations made in open court carry a 

strong presumption of verity." Blackledge v. Allison, 431 U.S. 

63, 73-74, 97 S.Ct. 1621, 1629, 52 L. Ed.2d 136 (1977). 

Nonetheless, the Blackledge Court recognized that this burden is 

 

 

5 The "presumption of correctness" will be addressed in 

greater detail below at section "D". 
not "invariably insurmountable." Id.,at 754, 97 S.Ct. at 1629-30. 

 A petitioner challenging the voluntary nature of a facially 

valid guilty plea based on unfulfilled promises or 

representations by counsel must advance specific and credible 

allegations detailing the nature and circumstances of such 

promises or representations. Lesko, 925 F.2d at 1537. A guilty 

plea induced by promises that divest the plea of its voluntary 

character is void. Machibroda v. United States, 368 U.S. 487, 

493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). See Heiser v. Ryan, 

951 F.2d 559, 561 (3d Cir. 1991) (guilty plea not voluntary where 

defendant's counsel threatened to withdraw if defendant did not 

plead guilty); United States v. Marzgliano, 588 F. 2d 395, 397-99 

(3d Cir. 1978) (petitioner's guilty plea not voluntary where 

defense counsel misled defendant about sentencing provisions of 

the plea agreement); United States v. Valenciano, 495 F.2d 585 

(3d Cir. 1974) (petitioner's guilty plea not voluntary where made 

on basis on counsel's statement that two sentences would run 

concurrently and court imposed consecutive sentences). This 

fundamental rule is not altered where, as here, a defendant 

alleges that he was expecting a certain sentence based upon his 

own illegal conduct. Where surrender of a fundamental 

constitutional right is concerned, our inquiry can not be focused 

upon the "clean hands" of the defendant. Instead, we must focus 

upon the "voluntariness" of the surrender. 

 Zilich has offered specific testimony that, if true, would 

negate the voluntariness of his plea and establish that he pled 

guilty only because of a belief he would receive probation in 
return for waiving his right to trial. For purposes of ruling 

upon his habeas corpus petition, we must take Zilich's factual 

assertions in the light most favorable to him. Keller v. 

Petsock, 853 F.2d 1122, 1128 (3d Cir. 1988). If his allegations 

are proven, he will establish at a minimum that there were 

representations made by his counsel that he would receive 

probation in return for his pleading guilty and paying a bribe to 

the judge. Whatever criminal consequences such a scheme would 

hold for Zilich, the allegations, if true, would entitle him to 

habeas relief under 28 U.S.C. §2254. Thus, we must decide if the 

district court erred in denying Zilich an evidentiary hearing. 

C.

 Our inquiry begins with Townsend v. Sain, 372 U.S. 293, 312-

14, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), in which the Supreme 

Court wrote: "Where the facts are in dispute, the federal court 

in habeas corpus must hold an evidentiary hearing if the habeas 

applicant did not receive a full and fair hearing in a state 

court, either at the time of the trial or in a collateral 

proceeding." Townsend, 372 U.S. at 311. Here, the procedure 

afforded defendant to resolve his allegations falls short of this 

requirement. In United States v. Valenciano, 495 F.2d 585 (3d 

Cir. 1974), we held that 

Where the voluntariness of a plea is attacked 

with an assertion that one's counsel or the 

prosecutor, or both, made an out-of-court 

arrangement or 'proposition' as to the 

outcome of a sentence which differs from that 

pronounced by the court, an evidentiary 

hearing will ordinarily be necessary on a 

2255 motion attacking the voluntariness of 

the plea. 
495 F.2d at 587 (citations omitted). The holding in Valenciano

has been extended to §2254 petitioners. See Lesko, 925 F.2d at 

1539. 

 We are aware that Zilich was afforded numerous hearings in 

state court, and a federal magistrate judge reviewed the 

transcripts of those hearings before recommending against relief. 

However, Zilich's claims cannot be resolved without a fact finder 

determining credibility. Here the magistrate judge merely 

reviewed transcripts of the various hearings which were held in 

the Court of Common Pleas and made a recommendation to the 

district court based upon that review. The district court then 

adopted the magistrate judge's recommendation, and the findings 

implicit within the recommendation, and denied relief based upon 

the magistrate judge's Report and Recommendation. Under the 

circumstances of this case, such a procedure does not meet the 

standards of affording a "full and fair hearing." The Supreme 

Court has previously stated, "Where an unresolved factual dispute 

exists, demeanor evidence is a significant factor in adjudging 

credibility. . . . [Q]uestions of credibility, of course, are 

basic to resolution of conflicts in testimony." Townsend, 372 

U.S. at 322. It is only by observing testimony that the 

factfinder ". . . can be aware of the variations in demeanor and 

tone of voice that bear so heavily on the listener's 

understanding of and belief in what is said." Anderson v. City 

of Bessemer City, North Carolina, 470 U.S. 564, 575, 105 S.Ct. 

1504, 1512, 84 L.Ed.2d 518 (1985). This is the very reason 
appellate judges defer to the factual conclusions of a hearing 

judge. 

Face to face with living witnesses the 

original trier of the facts holds a position 

of advantage from which appellate judges are 

excluded. In doubtful cases the exercise of 

his [or her] power of observation often 

proves the most accurate method of 

ascertaining the truth. . . . To the 

sophistication and sagacity of [the trier of 

fact] the law confides the duty of appraisal. 

Marshall v. Lonberger, 459 U.S. at 434, 103 S.Ct. 

at 851. (citations omitted). 

 

 There cannot even be the semblance of a full 

and fair hearing unless the state court 

actually reached and decided the issues of 

fact tendered by the defendant. 

Townsend 372 U.S. at 313-314. 

D.

 Normally a state prisoner seeking federal habeas relief in 

federal court must overcome a presumption that an adverse ruling 

in state court was based upon an adverse credibility 

determination by the state hearing judge. See LaVallee v. Delle 

Rose 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d. 637 (1973), and 

Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 

646 (1983). This is not such a case. Here, the state trial court 

granted the requested relief based upon the defendant's assertion 

of innocence. Accordingly, the presumption of correctness is 

inapplicable. See Townsend, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 

770 (1963). 
 Similarly, under 28 U.S.C. §2254(d), findings of fact of 

state courts are entitled to a presumption of correctness subject 

to specific exceptions. See Marshall, 459 U.S. 422, 103 S.Ct. 

843, 74 L.Ed.2d 646 (l983). One of those exceptions is where the 

merits of the habeas petitioner's claim were not resolved in the 

state court proceeding. In that instance, the presumption of 

correctness does not apply as there is nothing to which it can 

attach. 28 U.S.C. §2254(d)(1); Lesko, 925 F.2d at 1540; Sullivan 

v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983). 

E.

 The district court, by adopting the magistrate judge's 

Report and Recommendation as its opinion, found that the "record 

here is so complete, that there is no need for an additional 

evidentiary hearing." Magistrate's Report and Recommendation of 

July 21, 1993, at 11. The magistrate judge also concluded, 

[A]dditionally, because it would appear that 

the record does not substantially support the 

petitioner's allegations that he pled guilty 

because he had been assured of a probationary 

sentence, his allegations here are meritless. 

Id. We disagree. The district court relied upon the plea 

colloquy in reaching its conclusion that Zilich's plea was 

voluntary. See Magistrate Judge's Report, at 8, 9, 11. While 

Zilich's responses to the questions posed by his attorney and the 

district attorney during the colloquy appear to conclusively 

negate Zilich's allegations in his habeas petition, total 

reliance on the colloquy is misplaced under the circumstances 

posed by this case. 
The possibility exists that an inherent part 

of the out-of-court understanding was that 

appellant would respond negatively to an open 

court inquiry as to whether promises had been 

made. 

Valenciano, 495 F.2d at 587. As noted above, the defendant has 

offered testimony that this was the case. 

 Of course, we take no position as to the truth of the 

defendant's allegations. Nor do we hold that every habeas corpus 

petitioner is entitled to a hearing in federal court merely 

because the petitioner has made certain allegations that, if 

true, would entitle him or her to relief. As the Supreme Court 

has instructed us 

[T]here are times when allegations of facts 

outside the record can be fully investigated 

without requiring the personal presence of 

the prisoner. 

 . . . But the specific and detailed factual 

assertions of the petitioner, while 

improbable, cannot at this juncture be said 

to be incredible. If the allegations are 

true, the petitioner is clearly entitled to 

relief. 

Machibroda v. U.S., 368 U.S. at 495 (1962). 

 Accordingly we hold that, because the merits of Zilich's 

claim were not resolved in the state court, and because they 

require credibility determinations that cannot be resolved by 

review of the cold record, the district court must give him an 

evidentiary hearing. Sullivan, 723 F.2d at 1084.6 

 

 

6 Zilich contends that 28 U.S.C. §§2254(d)(1) and (d)(3) 

require that the district court hold an evidentiary hearing when 

the state court did not decide the issues of fact alleged by the 

habeas petitioner. By finding that the district court erred by 

not granting Zilich an evidentiary hearing, we do not hold that 

those sections require an evidentiary hearing. We have 
III. CONCLUSION

 For the reasons stated herein, we will reverse and remand to 

the district court for an evidentiary hearing on Zilich's claim. 

 

previously indicated that the relationship between Townsend and 

the §2254 exceptions is "still a murky one". Smith v. Freeman, 

892 F.2d 331, 339 n. 13 (3d Cir. 1989). We do not now decide 

whether the §2254 exceptions codify the Townsend standards. 
Zilich v. Reid, No. 93-3459 

Mansmann, J., concurring. 

 While I concur in the result, I do so with some 

hesitation and concern. I find it inequitable that a 

petitioner's challenge to the voluntary nature of his guilty plea 

may rest on allegations that the plea was induced by a scheme to 

bribe a judge. Further, I am troubled by the prejudice to the 

victim and the prosecution that will inevitably result from the 

delayed resolution of this case. 

 However, I am constrained by the language that the 

United States Supreme Court has adopted in setting forth the 

standard against which the consensual character of a plea must be 

measured. Most recently, in Mabry v. Johnson, 467 U.S. 504, 104 

S. Ct. 2543, 81 L.Ed.2d 437 (1984), the Court stated: 

 "A plea of guilty entered by one fully aware 

of the direct consequences, including the 

actual value of any commitments made to him 

by the court, prosecutor, or his own counsel, 

must stand unless induced by threats (or 

promises to discontinue improper harassment), 

misrepresentation (including unfulfilled or 

unfulfillable promises), or perhaps by 

promises that are by their nature improper as 

having no proper relationship to the 

prosecutor's business (e.g. bribes)." 

Id. at 509, 104 S. Ct. at 2547, quoting, Brady v. United States, 

397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) 

(emphasis added), quoting, Shelton v. United States, 242 F.2d 
101, 115 (5th Cir. 1957) (Tuttle, J., dissenting), reheard en 

banc, 246 F.2d 571, rev'd on other grounds, 356 U.S. 26, 78 S. 

Ct. 563, 2 L.Ed.2d 579 (1958). 

 Thus, it appears that the Supreme Court has decided it 

appropriate to grant broad protection to defendants who enter 

guilty pleas, even those who allege knowing and voluntary 

participation in egregious and illegal conduct. Since we are not 

writing on a clean slate, I concur with the majority that Zilich 

is entitled to an evidentiary hearing to test the voluntariness 

of his plea.