1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-13-1999

Baker v. Barbo

Precedential or Non-Precedential:

Docket 97-5687

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Recommended Citation

"Baker v. Barbo" (1999). 1999 Decisions. Paper 123.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/123
Filed May 13, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-5687 

JAMES BAKER, 

 Appellant 

v. 

JAMES F. BARBO; 

ATTORNEY GENERAL OF 

THE STATE OF NEW JERSEY 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civ. No. 96-01745) 

District Judge: Honorable Joseph A. Greenaway, Jr. 

Argued March 23, 1999 

BEFORE: GREENBERG and ROTH, Circuit Judges, 

and POLLAK,* District Judge 

(Filed: May 13, 1999) 

 Theodore Sliwinski (argued) 

 45 River Road 

 East Brunswick, NJ 08816 

 Attorney for Appellant 

_________________________________________________________________ 

*Honorable Louis H. Pollak, United States District Judge for the Eastern 

District of Pennsylvania, sitting by designation. 
 Thomas V. Manahan 

 Prosecutor of Union County 

 Steven J. Kaflowitz (argued) 

 Assistant Prosecutor 

 Office of Prosecutor of Union County 

 Union County Administration 

 Building 

 Elizabeth, NJ 07207 

 Attorneys for Appellee 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

On this appeal we review the district court's order

denying James Baker's petition for a writ of habeas corpus 

filed under 28 U.S.C. S 2254. Baker, who has been 

incarcerated since February 12, 1987, contends that he 

received ineffective assistance of counsel in violation of his 

rights under the Sixth Amendment and that his 

resentencing to a greatly enhanced sentence following his 

unsuccessful appeal of his convictions violated his right to 

due process under the Fourteenth Amendment. We have

jurisdiction under 28 U.S.C. S 1291, and will affirm the 

denial of the writ for the reasons which follow. 

II. BACKGROUND 

On March 19, 1987, a New Jersey grand jury indicted

Baker together with co-defendant Stephen L. Garry for two 

sets of crimes committed on the evening of January 7, 

1987, in Elizabeth, New Jersey: the robbery and attempted 

abduction of Elizabeth Soto and the abduction, kidnaping, 

and aggravated sexual assault of M.B., a 15-year old girl. 

Together, these incidents constituted second degree robbery 

in violation of N.J. Stat. Ann. S 2C:15-1 (West 1995); 

attempted kidnaping in violation of N.J. Stat. Ann.S 2C:5-1 

(West 1995) and N.J. Stat. Ann. S 2C:13-1b (West 1995); 

 2 
criminal restraint in violation of N.J. Stat. Ann.S 2C:13-2 

(West 1995); first degree kidnaping in violation of N.J. Stat. 

Ann. S 2C:13-1b; and aggravated sexual assault in violation 

of N.J. Stat. Ann. S 2C:14-2a (West Supp. 1998). 

Baker and Garry committed the first crime at 

approximately 8:00 p.m. on January 7, 1987. At that time 

Baker, who was driving a stolen car, and Garry, his

passenger, pulled up alongside Soto, who was leaving a 

store. Garry jumped out and chased Soto. A struggle then 

ensued after Soto unsuccessfully tried to run away. Garry 

dragged Soto into the middle of the road toward the car. 

She told Garry to take her purse, but he said, "no, we want 

you." Soto then began to hit and kick Garry and called for 

help, and, after a ten-minute struggle during which Garry 

took Soto's purse, Garry jumped back into the car, and he 

and Baker drove off. A witness saw the struggle and the 

police were called. They arrived minutes later and began a 

search for the car. 

Meanwhile, about a mile away, Garry and Baker pulled 

up along side 15-year-old M.B. sometime after 8:30 p.m. as 

she was walking home from a friend's house. One of the 

two men pulled M.B. into the backseat of the car and over 

the next two hours Garry raped her twice and Baker forced 

her to perform fellatio on him and attempted to rape her. 

They then released her onto the street, and she made her 

way home. Her mother took her to a police station and then 

to a hospital. Subsequently, the police arrested both men 

and the grand jury indicted them for the offenses we have 

described. 

The heart of this appeal lies in the fact that at the time 

of Baker's offenses, indictment, trial, and sentencing a new 

law was in effect which required a mandatory minimum 

term of incarceration of 25 years in this case. Under N.J. 

Stat. Ann. S 2C:13-1c (West 1995) the sentencing range for 

first degree kidnaping until one month before Baker's 

offenses had been 15 to 30 years without any requirement 

for a mandatory period of parole ineligibility. 1979 N.J. 

Laws c. 178, S 23. However, on December 8, 1986, the 

Legislature amended this section by enacting 1986 N.J. 

Laws c. 172, S 2, to provide that a person found guilty of 

kidnaping a victim under 16 years of age against whom a 

 3 
sexual assault under N.J. Stat. Ann. S 2C:14-2 or N.J. Stat. 

Ann. S 2C:14-3a is committed, shall be sentenced to a term 

of between 25 years and life imprisonment with 25 years of 

parole ineligibility. N.J. Stat. Ann. S 2C:13-1c(2)(a) (West 

1995). Inasmuch as M.B. was under 16 and Baker and 

Garry sexually assaulted her during the kidnaping, the law 

required their sentencing upon conviction to an 

imprisonment term of at least 25 years without parole. 

Nevertheless, the prosecution, unaware of the 

amendment to N.J. Stat. Ann. S 2C:13-1c, offered Garry a 

plea bargain under which he would receive an aggregate 

custodial sentence of no more than 30 years with 15 years 

of parole ineligibility, conditioned upon Garry pleading 

guilty and "testifying truthfully" against Baker. Garry 

accepted this offer and thus pleaded guilty. The trial court, 

also unaware of the amendment, sentenced Garry to an 

aggregate custodial term of 30 years with 15 years of parole 

ineligibility. 

The State offered Baker the same plea bargain: a 

maximum term of 30 years with 15 years of parole 

ineligibility. Baker declined this offer, however, and chose 

to go to trial because his attorney advised him that he had 

nothing to gain from accepting the plea: if he went to trial 

the maximum sentence he faced was 30 years with 15 

years of parole ineligibility -- the very same "deal" the State 

was offering. Baker's attorney, like the court and the 

prosecutor, was, of course, unaware of the change in the 

law. 

After a two-day trial, a jury on September 10, 1987, 

found Baker guilty of robbery, attempted kidnaping,

kidnaping and aggravated sexual assault. The court 

dismissed the charge of criminal restraint. On December 4, 

1987, the court, unaware of the change in the law, 

sentenced Baker to concurrent nine-year terms of 

imprisonment with three-year terms of parole ineligibility 

for robbery and attempted kidnaping and a consecutive 18- 

year term of imprisonment with an eight-year term of parole 

ineligibility for kidnaping. The court merged Baker's 

conviction for aggravated sexual assault into his conviction 

for kidnaping. Thus, the court sentenced Baker to an 

aggregate custodial term of 27 years with 11 years of parole 

 4 
ineligibility. Accordingly, both Baker and Garry received 

illegal sentences. 

Baker filed an untimely notice of appeal from his 

conviction on July 18, 1988, but the Appellate Division of 

the New Jersey Superior Court, entered an order on 

February 22, 1989, authorizing the appeal to befiled nunc 

pro tunc. Baker asserted various trial errors on appeal, but 

when he filed the appeal he still was unaware of the 

sentencing amendment on the kidnaping charge. However, 

on August 21, 1989, the State filed a motion for leave to file 

a cross-appeal nunc pro tunc, contending that Baker's 

sentence for kidnaping was illegal because of the change in 

law prior to the commission of the offenses.1 The Appellate 

Division granted that motion on September 12, 1989. Then, 

in an unpublished per curiam opinion filed on January 2, 

1990, the Appellate Division affirmed Baker's convictions 

and, inasmuch as it agreed with the State that Baker was 

subject to the 25-year parole disqualifier, it remanded the 

case to the trial court for reconsideration of the sentence. 

State v. Baker, No. A-5384-87T4 (N.J. Super. Ct. App. Div. 

Jan. 2, 1990). 

Baker moved in the Appellate Division for reconsideration 

of the order remanding the case for reconsideration of his 

sentence, but the court denied his motion on February 27, 

1990, stating that the trial court could address the issues 

he raised in the motion when it reconsidered Baker's 

sentence. The New Jersey Supreme Court denied Baker's 

petition for certification on June 13, 1990. State v. Baker, 

584 A.2d 246 (N.J. 1990). 

Baker then filed a petition for post-conviction relief in the 

_________________________________________________________________ 

1. The State has not attempted to have the state court correct Garry's 

sentence because, as it explained at argument before us, if the court 

increased Garry's sentence, he would be entitled to have his guilty plea 

vacated and to go to trial. Thus, Garry's position differed from that of 

Baker who did go to trial. See State v. Baker, 636 A.2d 553, 565 (N.J. 

Super. Ct. App. Div. 1994). The State was not willing to run the risk of 

another trial because by the time it discovered the error considerable 

time had elapsed from the time of the offenses. Moreover, it did not wish 

to require the victims to face the trauma of a second trial. Garry, of 

course, has not challenged his illegal sentence. 

 5 
trial court on March 27, 1991, alleging that he had been 

denied effective assistance of counsel and that he had been 

denied due process and equal protection of the law because 

the State had entered into a plea bargain with Garry under 

which Garry testified against Baker in exchange for an 

illegally short sentence. After an evidentiary hearing, the 

trial court denied his petition on October 7, 1991.

On February 19, 1992, the trial court resentenced Baker 

to a 25-year term of imprisonment without eligibility for 

parole for kidnaping and concurrent nine-year terms of 

imprisonment with three-year periods of parole ineligibility 

for robbery and attempted kidnaping. The court merged 

Baker's conviction for aggravated sexual assault into his 

conviction for kidnaping. Thus, the court resentenced 

Baker to an aggregate custodial term of 25 years without 

eligibility for parole, more than doubling the period of 

parole ineligibility it had imposed in the original sentence. 

Baker filed separate notices of appeal from the denial of 

his petition for post-conviction relief and from the judgment 

entered on his resentencing. The Appellate Division

consolidated these appeals on December 30, 1992, and 

affirmed Baker's convictions on January 21, 1994, over a 

dissent. State v. Baker, 636 A.2d 553 (N.J. Super. Ct. App. 

Div. 1994). On further appeal, the Supreme Court of New 

Jersey, on October 27, 1994, affirmed the decision of the 

Appellate Division with one justice dissenting. State v. 

Baker, 648 A.2d 1127 (N.J. 1994). 

Baker filed a petition for a writ of habeas corpus on April 

23, 1996, pursuant to 28 U.S.C. S 2254 in the district court 

but the court denied the petition in an order entered 

September 24, 1997. Baker then appealed.2 As the district 

court relied entirely on the state court record and did not 

hold an evidentiary hearing, we exercise plenary review of 

_________________________________________________________________ 

2. We note that the appellees did not argue in the district court that any 

of Baker's claims were not exhausted in the state courts and the district 

court rejected them on the merits. We are satisfied from our examination 

that Baker's claims have been exhausted. Inasmuch as Baker filed his 

petition before the enactment of the Antiterrorism and Effective Death 

Penalty Act, the provisions of that statute are not applicable here. See 

United States v. Skandier, 125 F.3d 178, 182 (3d Cir. 1997). 

 6 
the habeas proceeding. 28 U.S.C. S 2254; see, e.g.,

Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir. 

1991). 

III. DISCUSSION 

A. Denial of Effective Assistance of Counsel 

Baker argues that he was denied effective assistance of 

counsel in violation of the Sixth Amendment because of his 

attorney's ignorance of the statutory sentencing 

amendment during the plea negotiations and because his 

attorney made various errors during the trial. Baker 

contends that his attorney's ignorance of the sentencing 

law caused him to pass up the opportunity to plead guilty 

and to be sentenced to a 30-year term with a 15-year limit 

of parole ineligibility.3 Inasmuch as we find that his 

contentions with respect to his representation at trial are 

clearly without merit, we confine our discussion to the 

significance of his attorney's ignorance of the sentencing 

law. 

We start our discussion of the Sixth Amendment issues 

by pointing out that a defendant's right to effective counsel 

includes the period of his representation during a plea 

process as well as during a trial. Hill v. Lockhart, 474 U.S. 

52, 58, 106 S.Ct. 366, 370 (1985). Accordingly, we judge 

this unusual case by applying the ordinary standards for 

granting relief when a defendant claims that he received 

ineffective assistance of counsel. Thus, to prevail on his 

claim Baker must satisfy a two-prong test. First, he must 

show that his attorney's performance was "deficient," that 

is, "that counsel made errors so serious that counsel was 

not functioning as the `counsel' guaranteed the defendant 

by the Sixth Amendment . . . ." Strickland v. Washington, 

_________________________________________________________________ 

3. In his brief, Baker contended that he is entitled to be sentenced to a 

27-year term with an 11-year period of parole ineligibility. This request 

for relief obviously is dependent upon the reimposition of the sentence 

the trial court imposed following his conviction at trial and thus is not 

consistent with his theory that he never should have stood trial. At oral 

argument, his attorney conceded that his claim should be for the 

imposition of a 30-year sentence with a 15-year period of parole 

ineligibility. 

 7 
466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Next, he 

must show "that there is a reasonable probability that, but 

for counsel's unprofessional errors, the result of the 

proceeding would have been different." Id. at 694, 104 S.Ct. 

at 2068. Of course, inasmuch as Baker's contentions

regarding trial error are meritless, a different result can 

mean only that in the absence of his attorney's ignorance of 

the amendment of the sentencing law, Baker would have 

pleaded guilty and the court would have sentenced him to 

a shorter sentence than that it ultimately imposed.

We agree with Baker that his trial attorney's error with 

respect to his ignorance of the sentencing law has satisfied 

the first prong of the Strickland test. Strickland, 466 U.S. at 

688, 690, 104 S.Ct. at 2064-65. While we realize that this 

case is extraordinary in that the state trial judge 4 and the 

prosecutor also did not know of the change in the law even 

at the time of Baker's sentencing almost one year after the 

enactment of the amendment, still we must hold that an 

attorney who does not know the basic sentence for an 

offense at the time that his client is contemplating entering 

a plea is ineffective.5 

Baker, however, has not met the second Strickland prong 

-- a showing that there is a "reasonable probability that, 

but for" the error there might have been a different result. 

The "reasonable probability" test is not a stringent one. See 

Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 

(1986) (reasonable probability standard less demanding 

than preponderance standard). We have recognized that "[a] 

reasonable probability is a probability sufficient to 

undermine confidence in the outcome." United States v. 

Day, 969 F.2d 39, 42 (3d Cir. 1992) (quoting Strickland, 

_________________________________________________________________ 

4. In fact three different Superior Court judges were unaware of the 

change in the law, the judge who accepted Garry's plea of guilty, the 

judge who sentenced Garry, and the judge who sentenced Baker. 

5. Our opinion must not be overread. We recognize that the ascertaining 

of a sentence for an offense can be a difficult matter, particularly in 

the 

federal courts where sentence calculations can be quite complex and can 

depend on facts not ascertained when the defendant pleads to the 

offense. Here, however, the sentence required for the offense was 

straightforward as counsel had only to examine the latest statutory 

amendments to determine it. 

 8 
466 U.S. at 694, 104 S.Ct. at 2068). But Baker's arguments 

as to prejudice are totally speculative and do not meet that 

standard. 

We have held that an attorney can be ineffective by giving 

a defendant false information about sentencing, thereby 

inducing the defendant to plead guilty instead of going to 

trial. See Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998). In 

Meyers we found that a defense attorney was mistaken in 

informing his client that he would be eligible for parole in 

a case where the offense to which the defendant pled guilty 

carried a mandatory life sentence. We reasoned that there 

was prejudice because there was evidence that, but for the 

attorney's advice, the defendant would not have pled guilty, 

and might have been convicted of a lesser offense. Id. at 

664. Similarly, there can be no doubt that an attorney can 

be ineffective in giving his client advice which leads him to 

turn down a favorable plea agreement if the attorney is not 

aware of the applicable basic sentencing law. Here,

however, Baker has not shown that if his attorney had been 

aware of the sentencing law he might have obtained a 

sentence of 30 years with a 15-year term of parole 

ineligibility by pleading guilty or, indeed, obtained a 

sentence for any period less than that the court ultimately 

imposed. 

If Baker's attorney had known of the sentencing 

amendment he would have had the professional duty to 

alert the State and the court of the amendment because a 

defendant cannot bargain for an illegal sentence. See, e.g., 

In re Norton, 608 A.2d 328, 338 (N.J. 1992); State v. 

Nemeth, 519 A.2d 367, 368 (N.J. Super. Ct. App. Div. 1986) 

("[T]here can be no plea bargain to an illegal sentence."); 

see also N.J. Rule of Professional Conduct 3.3(a)(3) ("A 

lawyer shall not knowingly fail to disclose to the tribunal 

legal authority in the controlling jurisdiction known to the 

lawyer to be directly adverse to the position of the client 

and not disclosed by opposing counsel."); 3.3(a)(5) ("A 

lawyer shall not knowingly fail to disclose to the tribunal a 

material fact with the knowledge that the tribunal may tend 

to be misled by such failure."). Therefore, if Baker's 

attorney had known of the correct sentence for the 

kidnaping, and thus had been an effective counsel, Baker 

 9 
could not have accepted the plea offer as it required him to 

plead guilty to first degree kidnaping in circumstances in 

which the applicable statute required a sentence with a 25- 

year mandatory period of parole ineligibility. 

It therefore follows that, if his attorney had not been 

ineffective, Baker could have obtained a 30-year sentence 

with a 15-year period of parole ineligibility only if his 

attorney could have negotiated for a dismissal of the 

kidnaping count. But it is mere speculation to think that he 

could have done so. After all, Baker cannot demonstrate 

that there was a reasonable probability that the prosecutor 

would have negotiated a plea agreement that would 

frustrate the Legislature's then recently adopted 

requirement for a 25-year period of parole ineligibility in the 

circumstances of this case. Furthermore, even if Baker 

could have negotiated the agreement with the prosecutor, it 

could have been implemented only with the consent of the 

trial court because New Jersey state court practice permits 

the trial court to reject a guilty plea even when tendered 

pursuant to a plea agreement. See N.J. Ct. R. 3:9-2; 3:9-3. 

While we never can know whether the trial court would 

have accepted the hypothetical plea agreement, the 

Appellate Division on Baker's second appeal indicated that 

it was unwilling to "frustrate [the] legislative directive" for a 

25-year period of parole ineligibility. Thus, for that reason, 

among others, it upheld the resentencing. Baker cannot 

demonstrate that there is a reasonable probability that a 

trial court's attitude would have been any different. State v. 

Baker, 636 A.2d at 564. 

In considering whether there was a reasonable 

probability that Baker would have been able to negotiate for 

a dismissal of the kidnaping charge, it is important to 

recognize how severe the prosecutor's bargaining position 

had been. During the negotiations the parties believed that 

the proposed plea agreement which included a 30-year 

term with a 15-year period of parole ineligibility was the 

maximum sentence for the kidnaping offense. See N.J. Stat. 

Ann. S 2C:13-1c; N.J. Stat. Ann. S 2C:43-6b (West 1995). 

Indeed, while it was possible that by reason of the

imposition of consecutive sentences on separate counts 

that upon Baker's conviction the court could have imposed 

 10 
a longer custodial term, see State v. Baker, 636 A.2d at 

561, the proposed sentence was so long that Baker's

attorney advised him that he had nothing to lose by going 

to trial. 

Moreover, the court upon Baker's conviction sentenced 

him to a 27-year term with an 11-year period of parole 

ineligibility, in a sense vindicating Baker's attorney's 

position which, in the absence of the sentencing 

amendment, would have been unassailable. It is, of course, 

unusual for a court to sentence a defendant upon his 

conviction at trial to a shorter sentence than that offered 

prior to trial6 and the court's action plainly demonstrates 

that the prosecutor in his sentencing offer was not being 

lenient with Baker. In view of this attitude, Baker cannot 

demonstrate that if the prosecutor had known of the 25- 

year mandatory period of parole ineligibility, he would have 

been willing to enter into a plea agreement which included 

a dismissal of the kidnaping charge. Plainly, the reasonable 

inference we draw from the objective evidence is exactly to 

the contrary. Thus, Baker cannot demonstrate that there is 

a reasonable probability that his attorney's error had any 

effect on the outcome of the case. 

We recognize that the district court did not conduct an 

evidentiary hearing in this case and that sometimes it is 

necessary for the court to hold such a hearing to resolve 

disputed questions of fact. But this case does not fall 

within that category as the nature of Baker's claim is such 

that his chances for relief must remain nothing more than 

a possibility. Consequently, we will not remand so that the 

district court can preside over a charade in which witnesses 

testify about hypothetical conduct. In these circumstances, 

we cannot hold that there is a reasonable probability that 

but for his attorney's error, the result of this case could 

have been different.7 

_________________________________________________________________ 

6. This sentencing approach is well known to all attorneys practicing 

criminal law and is nothing new. See Comment, The Influence of the 

Defendant's Plea on Judicial Determination of Sentence, 66 Yale L.J. 204 

(1956). 

7. We note that the dissent suggests that on a remand the district court 

could inquire into whether the attorney who, on Baker's behalf, filed his 

 11 
Some context as to the trial testimony is helpful in 

explaining our decision. The first victim, Soto, tentatively 

identified Baker as the driver of the car which pulled up 

beside her and she positively identified Baker at trial. The 

second victim, M.B., testified that Baker attempted to 

sexually assault her but that she bit him and that this 

deterred his attack. While M.B. immediately after the crime 

did not identify Baker from a photo array, she was able to 

do so a few weeks later and she identified him at trial. 

Garry testified for the State that he and Baker committed 

both crimes, but he testified that he, not Baker, drove the 

car, and that it was Baker who jumped out to grab Soto 

and, later that evening, M.B.8 He also testified that both he 

and Baker sexually assaulted M.B. in the car. Further, 

Detective Conrad Cheatham of the Elizabeth Police 

Department, who arrested Baker, testified that Baker 

admitted participating in the assault upon Soto, stating 

that Garry drove the car while he attacked Soto. State v. 

Baker, 636 A.2d at 558. Given the strength of this evidence, 

there is no reasonable probability that in order to

accommodate Baker the State would have dropped thefirstdegree kidnaping charge if it had been aware of the 25-year 

_________________________________________________________________ 

first appeal, was ineffective because he apparently did not advise Baker 

that he faced a longer sentence by appealing. This appellate attorney, 

who was an Assistant Deputy Public Defender, had not represented 

Baker in the plea negotiations and at the trial. The problem with this 

suggestion, quite aside from any ethical considerations that might have 

compelled the attorney to share his knowledge of the sentencing error 

with the state, if he had any such knowledge, is that Baker never has 

raised this issue in either the state or federal courts. For example, in 

this court he contends in his brief that his constitutional rights "were 

violated because he received ineffective counsel during the plea 

negotiations of his case," "trial counsel was ineffective because he 

failed 

to make sufficient efforts to research the applicable sentencing law," and 

his "Sixth Amendment rights were violated because the cumulative effect 

of counsel's errors denied him effective assistance of counsel." His brief 

makes plain that his reference to the cumulative errors means error at 

trial. 

8. Of course, if the State had been aware of the mandatory sentence, it 

could not have made the plea agreement it did make with Garry and 

perhaps his testimony would not have been available in Baker's case. 

 12 
mandatory imprisonment term without parole eligibility or 

that the court would have approved any such action.

Of course, we cannot replay the events of the pre-trial 

proceedings. Yet it is clear enough that the Strickland test 

requires a showing that a defendant has been deprived of 

a "just result" due to ineffective counsel. Strickland, 466 

U.S. at 686, 104 S.Ct. at 2064. The State's cross-appeal to 

correct the sentence provided Baker with what he would 

have had if he had received effective representation during 

the plea stage, the right to be sentenced legally. His 

attorney's mistake in no way affected the constitutionality 

of the subsequent trial. The mistake deprived Baker only of 

the possibility to negotiate for the dismissal of the 

kidnaping charge, but as we have indicated, he cannot 

show that he was prejudiced by the loss of this speculative 

opportunity. Thus, his Sixth Amendment claim must fail. 

B. Fundamental Unfairness 

Baker argues that his resentencing to the 25-year term of 

imprisonment without eligibility for parole mandated by 

N.J. Stat. Ann. S 2C:13-1c(2)(a) violated his right to due 

process of law. Due process of law comprehends concepts 

less rigid and more fluid than those provided in specific and 

particular constitutional guarantees. To show a due process 

violation, Baker must show that his resentencing was 

"fundamentally unfair," Burkett v. Cunningham, 826 F.2d 

1208, 1221 (3d Cir. 1987), or was "shocking to the 

universal sense of justice." Kinsella v. United States ex rel. 

Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304 (1960). 

Baker claims that the parties' and the court's ignorance of 

the sentencing amendment for kidnaping led to his serving 

a portion of his sentence before any challenge was made, 

and that it is unfair that he now should face a longer 

sentence without parole than he had expected. Of course, 

Baker's due process argument includes the odd fact that he 

is claiming a right to illegal treatment. 

On the fundamental fairness issue we first consider

double jeopardy principles for while they are conceptually 

distinct from due process principles still to a degree they 

are informative even here. In Bozza v. United States, 330 

U.S. 160, 67 S.Ct. 645 (1947), the trial court inadvertently 

 13 
failed to impose a statutorily mandated fine in sentencing 

the defendant, but recalled him to impose the omitted fine. 

Rejecting his contention that this resentencing constituted 

a violation of the Double Jeopardy Clause, the Court stated: 

 This Court has rejected the `doctrine that a prisoner, 

 whose guilt is established, by a regular verdict, is to 

 escape punishment altogether, because the court 

 committed an error in passing the sentence.' The 

 Constitution does not require that sentencing should 

 be a game in which a wrong move by the judge means 

 immunity for the prisoner. In this case the court`only 

 set aside what it had no authority to do and

 substitute[d] directions required by the law to be done 

 upon the conviction of the offender.' It did not twice 

 put petitioner in jeopardy for the same offense. The 

 sentence, as corrected, imposes a valid punishment for 

 an offense instead of an invalid punishment for that 

 offense. 

Id. at 166-67, 67 S.Ct. at 649 (citations omitted).

Following Bozza, we have stated that a guilty prisoner 

cannot "escape punishment because the court committed 

an error in passing sentence." United States v. Busic, 639 

F.2d 940, 946 (3d Cir. 1981) (citing Bozza, 330 U.S. at 166, 

67 S.Ct. at 648). See also id. at 948 ("Nothing in the history 

or policy of the [Double Jeopardy] clause suggests that its 

purposes included protecting the finality of a sentence and 

thereby barring resentencing to correct a sentence entered 

illegally or erroneously."). This principle is true even in 

cases like Baker's where the prisoner already has begun to 

serve his sentence. Busic, 639 F.2d at 948 n.11. 

Baker nevertheless contends that it is a violation of the 

Due Process Clause to correct even an illegal sentence 

when enough time has passed such that the prisoner has 

some real interest in expecting a certain release date or in 

fact has been released and faces reincarceration. See 

Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir. 1999); 

DeWitt v. Venetoulo, 6 F.3d 32 (1st Cir. 1993); Breest v. 

Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). In Breest, the 

court noted that the power of a sentencing court to correct 

an invalid sentence "must be subject to some temporal 

 14 
limit." Breest, 579 F.2d at 101. According to the court, "[a]s 

the months and years pass," the expected release date 

acquires "a real and psychologically critical importance" to 

the inmate. Id. After a "substantial period of time" passes, 

"it might be fundamentally unfair . . . to alter even an 

illegal sentence in a way which frustrates a prisoner's 

expectations [of release]." Id. 

Baker's reasonable expectations could not have reached 

that "temporal limit" wherever it may be. Baker's reliance 

on his sentence could not have lasted even two years as he 

was sentenced on December 4, 1987, and the State moved 

on August 21, 1989, for leave to cross-appeal from the 

sentence. Further, he could not have had a clear 

"expectation of finality" when the State cross-appealed as 

the direct appeal process had not been concluded by that 

time. See United States v. DiFrancesco, 449 U.S. 117, 136, 

101 S. Ct. 426, 437 (1980) (defendant "has no expectation 

of finality in his sentence until the appeal is concluded or 

the time to appeal has expired"); State v. Rodriguez, 478 

A.2d 408, 412 (N.J. 1984) ("Since the underlying 

substantive convictions in this case were themselves the 

subject of attack on an appeal in which defendant sought 

their modification, no legitimate expectation offinality could 

be invested in the underlying convictions or the sentences 

related to them."). 

We realize that prisoners place enormous weight upon 

their hopes for parole or release. But Baker has not shown 

a substantial enough expectation of release to support a 

finding of a violation of his due process rights. While Baker 

relies heavily on DeWitt v. Venetoulo that case is 

distinguishable as there, after a defendant was paroled, the 

court reimposed a sentence to correct an illegal order 

suspending a portion of his sentence. 

It is also significant that Baker initiated the appellate 

process and was seeking a new trial by appealing. Thus, as 

the Appellate Division indicated on Baker's second appeal, 

his "own appeal prevented his convictions and sentences 

from being invested with finality." State v. Baker, 636 A.2d 

at 564. Therefore, it is conceivable that if he had been 

successful on appeal and then had been convicted at a new 

trial, the court might have imposed a greater sentence on 

 15 
him than that it originally imposed. Id. While it is true that 

North Carolina v. Pearce, 395 U.S. 812, 89 S.Ct. 2072 

(1969), places some limitations on the enhancement of a 

sentence after a retrial, the case is not an absolute bar to 

such an enhancement. Thus, by appealing, Baker gambled 

that he would lose the advantage of the 27-year sentence 

with an 11-year period of parole ineligibility. He lost his 

gamble, though not in a way he could have anticipated 

when he appealed. 

We ultimately are persuaded by the State's argument

that it is proper that Baker serve at least the minimum 

sentence the Legislature intended for the crimes he

committed. One month before Baker kidnaped and sexually 

assaulted the minor girl, the Legislature directed that any 

person who commits such an offense should serve at least 

a 25-year term of imprisonment without parole. We would 

thwart this legislative directive if we were to conclude that 

due process considerations require that Baker be allowed to 

avoid the statutorily required minimum sentence because 

the trial court failed to impose the mandated period of 

parole ineligibility, and the State failed to appeal the 

sentence for more than a year-and-a-half. 

The State had the right to pursue an appeal of the illegal 

sentence, and Baker now is serving the sentence mandated 

for the crimes he has committed. The only possible relief 

that Baker could obtain from either this court or the 

district court on remand after further proceedings is that 

he be released unless the state court resentences him to an 

illegal sentence. See Orban v. Vaughn, 123 F.3d 727, 731 

n.1 (3d Cir. 1997). Surely, only the most compelling 

circumstances could justify a federal court to grant the 

extraordinary relief of requiring a state court to impose an 

illegal sentence as a condition of holding a prisoner in 

custody. Those circumstances are not present here. 

IV. CONCLUSION 

We close with the following overview of this case. Baker 

was constitutionally convicted and sentenced to the

minimum term for his offenses. In these circumstances, it 

is quite remarkable that he petitions for a writ of habeas 

 16 
corpus so that he can obtain an illegal result. We will not 

grant him such relief. 

For the foregoing reasons we will affirm the order of 

September 24, 1997. 

 17 
POLLAK, District Judge, dissenting: 

I. 

As the court's opinion makes plain, one who, pursuant to 

Strickland v. Washington, 466 U.S. 668 (1984), mounts a 

challenge to a conviction and/or sentence on the ground of 

asserted ineffective assistance of counsel, must, in order to 

prevail, show that (1) "counsel made errors so serious that 

counsel was not functioning as the `counsel' guaranteed the 

defendant by the Sixth Amendment," id. at 687, and (2) 

"there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would 

have been different." Id. at 694. 

I agree with the court's persuasive demonstration that 

Baker's "trial attorney's error with respect to his ignorance 

of the sentencing law has satisfied the first prong of the 

Strickland test." However, given the procedural posture of 

this habeas corpus proceeding--in which we, as an 

appellate panel, are reviewing a district court denial of the 

writ based on pleadings and legal argument, no evidentiary 

record having been made in the district court--I do not feel 

that I can with entire confidence subscribe to the court's 

conclusion that Baker "has not met the second Strickland 

prong--a showing that there is a `reasonable probability 

that, but for' the error, there might have been a different 

result." The court's opinion argues with considerable force 

the proposition that, even if Baker's trial attorney had in 

1987 been properly informed about the 1986 amendment of 

the statute governing sentence and had communicated that 

information to Baker, his client, the sentence ultimately 

imposed on Baker would not have been less severe than the 

sentence he now challenges. Very possibly so. But the 

court's argument, while long on advocacy, is somewhat 

short on factual infrastructure--and this is unsurprising, 

given that (1) no evidentiary record was made in the district 

court and (2) it does not appear that any of the several 

proceedings in the state courts focused systematically in 

some factually comprehensive fashion on the sentencing 

aspect of Baker's ineffective-assistance-of-counsel claim. 

Accordingly, the appropriate course for this court to pursue 

 18 
is, so it seems to me, the conventional course of remand for 

development of the facts. 

The court eschews this course. The court states that "we 

will not remand so that the district court can preside over 

a charade in which witnesses testify about hypothetical 

conduct." But characterizing the proposed district court 

inquiry as one which would address "hypothetical conduct" 

does not mean that no inquiry is called for. Any inquiry 

into whether an acknowledged error--in this instance, the 

ineffectiveness of counsel--was harmless or not necessarily 

calls for an assessment of the likelihood that a road not 

taken might have brought the traveler to a destination 

other the than one actually arrived at. Characterizing such 

an inquiry as "hypothetical" may signify that it could be 

instructively pursued in a law school classroom, but it does 

not serve to remove it from the courtroom. And so, 

persuaded that this habeas corpus case should be 

remanded for further proceedings, I respectfully dissent.1 

II. 

If this case were to be remanded for further proceedings 

in the district court, I would think it proper that such 

further proceedings also encompass some inquiry into a 

facet of the ineffective-assistance-of-counsel issue which 

has not been addressed by the parties in briefing and 

arguing this appeal. I have in mind the question whether 

Baker was adequately advised by counsel who represented 

Baker in 1988, when, rather tardily, he undertook tofile an 

appeal from his 1987 conviction. So far as I can determine 

from the materials available to us on appeal, it appears 

likely that appellate counsel, at the time Baker's appeal was 

perfected, was, like trial counsel a year before, unaware of 

the 1986 amendment of the sentencing statute. If that is 

the case, we have a second instance of ineffective-

_________________________________________________________________ 

1. Notwithstanding my disagreement with the court on this Strickland 

issue, I would note that I entirely agree with the court -- for the 

reasons 

given in the court's opinion -- that the action of the New Jersey courts 

in extending Baker's unauthorized sentence to a term in conformity with 

the strictures of the 1986 amendment of the sentencing statute did not 

work a denial of Baker's substantive due process rights. 

 19 
assistance-of-counsel--one that would appear to be even 

more egregious than the first, since an additional year had 

gone by since the Legislature changed the governing law. 

And this putative second instance of ineffective-assistanceof-counsel may very well have been the factor which

propelled Baker, through appellate counsel, to pursue what 

proved to be the calamitous course of filing an appeal-- 

"calamitous" in that Baker's appeal set the stage for the 

state's cross-appeal, leading to the longer sentence which 

Baker has challenged in this habeas corpus proceeding. 

Properly advised of the dramatically enhanced parole 

ineligibility he might face were he to succeed on appeal and 

thereby gain a new trial, and, potentially, a second 

conviction, Baker might well have foregone filing the 1988 

direct appeal of his 1987 conviction. On the other hand it 

is indeed possible that, even if Baker had been properly 

advised of the large risk an appeal entailed, he would 

nonetheless have directed counsel to appeal. Which would 

have been the more likely scenario we cannot tell. But in 

order fully to assess whether Baker has a valid Strickland 

claim with respect to his appeal, inquiry is called for. And 

that inquiry would be the province of the district court, 

unless that court were to determine that the question of 

ineffective assistance of appellate counsel is unexhausted 

and hence not open to current scrutiny on Baker's present 

application for habeas corpus. 

Conclusion 

For the reasons given in Part I of this opinion, I dissent 

from the judgment of the court. Were this case remanded to 

the district court for the further proceedings contemplated 

in Part I, those further proceedings should, in my 

judgment, also entail inquiry into the issue identified in 

Part II. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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