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. e du/thir dc ir c uit_1999/123Filed 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

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*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 viola tion of his rights under the Sixth Amendment and that his resentencing to a greatly enhanced sentence followi ng 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 affir m 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 f or two sets of crimes committed on the evening of January 7, 1987, in Elizabeth, New Jersey: the robbery and att empted abduction of Elizabeth Soto and the abduction, kidn aping, and aggravated sexual assault of M.B., a 15-year ol d girl. Together, these incidents constituted second degree robbery in violation of N.J. Stat. Ann. S 2C:15-1 (West 199 5); 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 19 95);

2criminal 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 v iolation 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 leavin g 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 cal led 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 pulle d 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 an d over the next two hours Garry raped her twice and Baker forced her to perform fellatio on him and attempted to rap e her. They then released her onto the street, and she mad e her way home. Her mother took her to a police station a nd then to a hospital. Subsequently, the police arrested bo th men and the grand jury indicted them for the offenses w e have

described.

The heart of this appeal lies in the fact that at t he time of Baker's offenses, indictment, trial, and sentenc ing a new law was in effect which required a mandatory minimu m term of incarceration of 25 years in this case. Und er N.J. Stat. Ann. S 2C:13-1c (West 1995) the sentencing ra nge for first degree kidnaping until one month before Baker 's offenses had been 15 to 30 years without any requir ement for a mandatory period of parole ineligibility. 197 9 N.J. Laws c. 178, S 23. However, on December 8, 1986, th e Legislature amended this section by enacting 1986 N .J. Laws c. 172, S 2, to provide that a person found gu ilty of kidnaping a victim under 16 years of age against wh om a

3sexual 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 y ears 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 paro le.

Nevertheless, the prosecution, unaware of the amendment to N.J. Stat. Ann. S 2C:13-1c, offered Ga rry a plea bargain under which he would receive an aggreg ate custodial sentence of no more than 30 years with 15 years of parole ineligibility, conditioned upon Garry ple ading guilty and "testifying truthfully" against Baker. G arry accepted this offer and thus pleaded guilty. The tr ial court, also unaware of the amendment, sentenced Garry to a n 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 tha t 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 "dea l" the State was offering. Baker's attorney, like the court and the prosecutor, was, of course, unaware of the change i n 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 Dece mber 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 inelig ibility for robbery and attempted kidnaping and a consecuti ve 18- year term of imprisonment with an eight-year term o f parole ineligibility for kidnaping. The court merged Baker 's conviction for aggravated sexual assault into his c onviction for kidnaping. Thus, the court sentenced Baker to a n aggregate custodial term of 27 years with 11 years of parole

4ineligibility. Accordingly, both Baker and Garry re ceived

illegal sentences.

Baker filed an untimely notice of appeal from his conviction on July 18, 1988, but the Appellate Divi sion of the New Jersey Superior Court, entered an order on February 22, 1989, authorizing the appeal to befile d nunc pro tunc. Baker asserted various trial errors on ap peal, but when he filed the appeal he still was unaware of th e sentencing amendment on the kidnaping charge. Howev er, on August 21, 1989, the State filed a motion for le ave to file a cross-appeal nunc pro tunc, contending that Baker 's sentence for kidnaping was illegal because of the c hange in law prior to the commission of the offenses.1 The A ppellate Division granted that motion on September 12, 1989. Then, in an unpublished per curiam opinion filed on Janua ry 2, 1990, the Appellate Division affirmed Baker's convi ctions and, inasmuch as it agreed with the State that Bake r was subject to the 25-year parole disqualifier, it rema nded the

case to the trial court for reconsideration of the sentence. State v. Baker, No. A-5384-87T4 (N.J. Super. Ct. Ap p. Div. Jan. 2, 1990).

Baker moved in the Appellate Division for reconside ration of the order remanding the case for reconsideration of his sentence, but the court denied his motion on Februa ry 27, 1990, stating that the trial court could address th e 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 rel ief in the

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1. The State has not attempted to have the state co urt correct Garry's sentence because, as it explained at argument befor e 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 willi ng 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. Mor eover, it did not wish to require the victims to face the trauma of a seco nd trial. Garry, of course, has not challenged his illegal sentence.

5trial 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 Garr y under which Garry testified against Baker in exchange for an illegally short sentence. After an evidentiary hear ing, the trial court denied his petition on October 7, 1991.

On February 19, 1992, the trial court resentenced B aker to a 25-year term of imprisonment without eligibili ty for parole for kidnaping and concurrent nine-year terms of imprisonment with three-year periods of parole inel igibility for robbery and attempted kidnaping. The court merg ed Baker's conviction for aggravated sexual assault in to his conviction for kidnaping. Thus, the court resentenc ed Baker to an aggregate custodial term of 25 years wi thout eligibility for parole, more than doubling the peri od of parole ineligibility it had imposed in the original sentence.

Baker filed separate notices of appeal from the den ial of his petition for post-conviction relief and from th e judgment entered on his resentencing. The Appellate Division consolidated these appeals on December 30, 1992, an d affirmed Baker's convictions on January 21, 1994, o ver 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. Sta te 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 distr ict court but the court denied the petition in an order enter ed September 24, 1997. Baker then appealed.2 As the d istrict court relied entirely on the state court record and did not hold an evidentiary hearing, we exercise plenary re view of

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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 c ourts and the district court rejected them on the merits. We are satisfied from our examination

that Baker's claims have been exhausted. Inasmuch a s 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 Ci r. 1997).

6the 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 assistanc e 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. Bake r contends that his attorney's ignorance of the sente ncing law caused him to pass up the opportunity to plead guilty and to be sentenced to a 30-year term with a 15-yea r limit of parole ineligibility.3 Inasmuch as we find that his contentions with respect to his representation at t rial are clearly without merit, we confine our discussion to the significance of his attorney's ignorance of the sen tencing

law.

We start our discussion of the Sixth Amendment issu es by pointing out that a defendant's right to effecti ve 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 standard s for granting relief when a defendant claims that he rec eived ineffective assistance of counsel. Thus, to prevail on his claim Baker must satisfy a two-prong test. First, h e must show that his attorney's performance was "deficient ," that is, "that counsel made errors so serious that couns el was not functioning as the `counsel' guaranteed the def endant by the Sixth Amendment . . . ." Strickland v. Washi ngton,

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3. In his brief, Baker contended that he is entitle d to be sentenced to a 27-year term with an 11-year period of parole ineli gibility. This request for relief obviously is dependent upon the reimposi tion of the sentence the trial court imposed following his conviction at trial and thus is not consistent with his theory that he never should hav e stood trial. At oral argument, his attorney conceded that his claim shou ld be for the imposition of a 30-year sentence with a 15-year per iod of parole ineligibility.

7466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Nex t, he

must show "that there is a reasonable probability t hat, 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 re sult can mean only that in the absence of his attorney's ign orance of the amendment of the sentencing law, Baker would ha ve pleaded guilty and the court would have sentenced h im 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 th at this case is extraordinary in that the state trial judge 4 and the prosecutor also did not know of the change in the l aw even at the time of Baker's sentencing almost one year a fter the enactment of the amendment, still we must hold that an attorney who does not know the basic sentence for a n offense at the time that his client is contemplatin g entering a plea is ineffective.5

Baker, however, has not met the second Strickland p rong -- a showing that there is a "reasonable probabilit y that, but for" the error there might have been a differen t result. The "reasonable probability" test is not a stringen t one. See Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) (reasonable probability standard less demand ing than preponderance standard). We have recognized th at "[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 Strick land,

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4. In fact three different Superior Court judges we re unaware of the change in the law, the judge who accepted Garry's p lea of guilty, the judge who sentenced Garry, and the judge who senten ced Baker.

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

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

the federal courts where sentence calculations can be q uite complex and can depend on facts not ascertained when the defendant pleads to the offense. Here, however, the sentence required for t he offense was straightforward as counsel had only to examine the latest statutory

amendments to determine it.

8466 U.S. at 694, 104 S.Ct. at 2068). But Baker's ar guments

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, the reby inducing the defendant to plead guilty instead of g oing to trial. See Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998). In Meyers we found that a defense attorney was mistake n in informing his client that he would be eligible for parole in a case where the offense to which the defendant ple d 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 ple d guilty, and might have been convicted of a lesser offense. Id. at 664. Similarly, there can be no doubt that an attor ney can be ineffective in giving his client advice which le ads him to turn down a favorable plea agreement if the attorne y is not aware of the applicable basic sentencing law. Here, however, Baker has not shown that if his attorney h ad 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, obtain ed a sentence for any period less than that the court ul timately imposed.

If Baker's attorney had known of the sentencing amendment he would have had the professional duty t o alert the State and the court of the amendment beca use a defendant cannot bargain for an illegal sentence. S ee, 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 sent ence."); 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 kno wn to the lawyer to be directly adverse to the position of th e 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 Bake r's attorney had known of the correct sentence for the kidnaping, and thus had been an effective counsel, Baker

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

plead guilty to first degree kidnaping in circumsta nces in which the applicable statute required a sentence wi th 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 se ntence with a 15-year period of parole ineligibility only if his attorney could have negotiated for a dismissal of t he kidnaping count. But it is mere speculation to thin k that he could have done so. After all, Baker cannot demonst rate that there was a reasonable probability that the pr osecutor would have negotiated a plea agreement that would frustrate the Legislature's then recently adopted requirement for a 25-year period of parole ineligib ility in the circumstances of this case. Furthermore, even if Ba ker could have negotiated the agreement with the prosec utor, it could have been implemented only with the consent o f the trial court because New Jersey state court practice permits the trial court to reject a guilty plea even when t endered 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 wou ld have accepted the hypothetical plea agreement, the Appellate Division on Baker's second appeal indicat ed that it was unwilling to "frustrate [the] legislative di rective" for a 25-year period of parole ineligibility. Thus, for t hat reason, among others, it upheld the resentencing. Baker can not demonstrate that there is a reasonable probability that a trial court's attitude would have been any differen t. State v. Baker, 636 A.2d at 564.

In considering whether there was a reasonable probability that Baker would have been able to nego tiate for a dismissal of the kidnaping charge, it is importan t to recognize how severe the prosecutor's bargaining po sition had been. During the negotiations the parties belie ved that the proposed plea agreement which included a 30-yea r 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 1 995). Indeed, while it was possible that by reason of the imposition of consecutive sentences on separate cou nts that upon Baker's conviction the court could have i mposed

10a 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 sentenc ed him to a 27-year term with an 11-year period of par ole ineligibility, in a sense vindicating Baker's attor ney'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 hi s conviction at trial to a shorter sentence than that offered prior to trial6 and the court's action plainly demo nstrates 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 w ould have been willing to enter into a plea agreement which i ncluded a dismissal of the kidnaping charge. Plainly, the r easonable inference we draw from the objective evidence is ex actly to the contrary. Thus, Baker cannot demonstrate that t here 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 conduc t an evidentiary hearing in this case and that sometimes it is necessary for the court to hold such a hearing to r esolve 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 mor e 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 circum stances, we cannot hold that there is a reasonable probabili ty that but for his attorney's error, the result of this ca se could

have been different.7

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6. This sentencing approach is well known to all at torneys practicing criminal law and is nothing new. See Comment, The I nfluence of the

Defendant's Plea on Judicial Determination of Sente nce, 66 Yale L.J. 204 (1956).

7. We note that the dissent suggests that on a rema nd the district court could inquire into whether the attorney who, on Bak er's behalf, filed his

11Some context as to the trial testimony is helpful i n

explaining our decision. The first victim, Soto, te ntatively identified Baker as the driver of the car which pul led up beside her and she positively identified Baker at t rial. 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 t he crime did not identify Baker from a photo array, she was able to

do so a few weeks later and she identified him at t rial. Garry testified for the State that he and Baker com mitted both crimes, but he testified that he, not Baker, d rove the car, and that it was Baker who jumped out to grab S oto and, later that evening, M.B.8 He also testified th at both he and Baker sexually assaulted M.B. in the car. Furth er, Detective Conrad Cheatham of the Elizabeth Police Department, who arrested Baker, testified that Bake r admitted participating in the assault upon Soto, st ating that Garry drove the car while he attacked Soto. St ate 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 thef irstdegree kidnaping charge if it had been aware of the 25-year

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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 no t represented Baker in the plea negotiations and at the trial. Th e problem with this suggestion, quite aside from any ethical considerat ions that might have compelled the attorney to share his knowledge of th e sentencing error with the state, if he had any such knowledge, is th at Baker never has

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

this court he contends in his brief that his consti tutional rights "were

violated because he received ineffective counsel du ring the plea negotiations of his case," "trial counsel was ineff ective because he

failed to make sufficient efforts to research the applicab le sentencing law," and his "Sixth Amendment rights were violated because t he cumulative effect

of counsel's errors denied him effective assistance of counsel." His brief makes plain that his reference to the cumulative er rors means error at
trial.

8. Of course, if the State had been aware of the ma ndatory 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.

12mandatory imprisonment term without parole eligibil ity or

that the court would have approved any such action.

Of course, we cannot replay the events of the pre-t rial proceedings. Yet it is clear enough that the Strick land test requires a showing that a defendant has been depriv ed of a "just result" due to ineffective counsel. Strickl and, 466 U.S. at 686, 104 S.Ct. at 2064. The State's cross-a ppeal to correct the sentence provided Baker with what he wo uld have had if he had received effective representatio n during the plea stage, the right to be sentenced legally. His attorney's mistake in no way affected the constitut ionality of the subsequent trial. The mistake deprived Baker only of the possibility to negotiate for the dismissal of t he kidnaping charge, but as we have indicated, he cann ot show that he was prejudiced by the loss of this spe culative opportunity. Thus, his Sixth Amendment claim must f ail.

B. Fundamental Unfairness

Baker argues that his resentencing to the 25-year t erm of imprisonment without eligibility for parole mandate d by N.J. Stat. Ann. S 2C:13-1c(2)(a) violated his right to due process of law. Due process of law comprehends conc epts less rigid and more fluid than those provided in sp ecific and particular constitutional guarantees. To show a due process violation, Baker must show that his resentencing wa s "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 Sta tes ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304 (19 60). Baker claims that the parties' and the court's igno rance of the sentencing amendment for kidnaping led to his s erving a portion of his sentence before any challenge was made,

and that it is unfair that he now should face a lon ger sentence without parole than he had expected. Of co urse, 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 conce ptually distinct from due process principles still to a deg ree they

are informative even here. In Bozza v. United State s, 330 U.S. 160, 67 S.Ct. 645 (1947), the trial court inad vertently

13failed to impose a statutorily mandated fine in sen tencing

the defendant, but recalled him to impose the omitt ed fine. Rejecting his contention that this resentencing con stituted a violation of the Double Jeopardy Clause, the Cour t stated:

This Court has rejected the `doctrine that a prisoner, whose guilt is established, by a regular ver dict, is to escape punishment altogether, because the co urt committed an error in passing the sentence.' The Constitution does not require that sentencin g 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 offe nse. The sentence, as corrected, imposes a valid puni shment 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 priso ner cannot "escape punishment because the court committ ed an error in passing sentence." United States v. Bus ic, 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 sent ence 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 b egun 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 sente nce when enough time has passed such that the prisoner has some real interest in expecting a certain release d ate or in

fact has been released and faces reincarceration. S ee Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir. 1999); DeWitt v. Venetoulo, 6 F.3d 32 (1st Cir. 1993); Bre est v. Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). In Bree st, the court noted that the power of a sentencing court to correct an invalid sentence "must be subject to some tempor al

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

the months and years pass," the expected release da te acquires "a real and psychologically critical impor tance" to the inmate. Id. After a "substantial period of time " passes, "it might be fundamentally unfair . . . to alter ev en an illegal sentence in a way which frustrates a prison er's expectations [of release]." Id.

Baker's reasonable expectations could not have reac hed that "temporal limit" wherever it may be. Baker's r eliance on his sentence could not have lasted even two year s as he was sentenced on December 4, 1987, and the State mo ved 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-appe aled as the direct appeal process had not been concluded by that time. See United States v. DiFrancesco, 449 U.S. 11 7, 136, 101 S. Ct. 426, 437 (1980) (defendant "has no expec tation of finality in his sentence until the appeal is con cluded or the time to appeal has expired"); State v. Rodrigue z, 478 A.2d 408, 412 (N.J. 1984) ("Since the underlying

substantive convictions in this case were themselve s the subject of attack on an appeal in which defendant s ought their modification, no legitimate expectation offin ality could be invested in the underlying convictions or the se ntences related to them.").

We realize that prisoners place enormous weight upo n their hopes for parole or release. But Baker has no t shown a substantial enough expectation of release to supp ort a finding of a violation of his due process rights. W hile Baker relies heavily on DeWitt v. Venetoulo that case is distinguishable as there, after a defendant was par oled, the court reimposed a sentence to correct an illegal or der suspending a portion of his sentence.

It is also significant that Baker initiated the app ellate process and was seeking a new trial by appealing. T hus, as the Appellate Division indicated on Baker's second appeal, his "own appeal prevented his convictions and sente nces 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 sente nce on

15him than that it originally imposed. Id. While it i s true that

North Carolina v. Pearce, 395 U.S. 812, 89 S.Ct. 20 72 (1969), places some limitations on the enhancement of a sentence after a retrial, the case is not an absolu te bar to such an enhancement. Thus, by appealing, Baker gamb led that he would lose the advantage of the 27-year sen tence with an 11-year period of parole ineligibility. He lost his gamble, though not in a way he could have anticipat ed when he appealed.

We ultimately are persuaded by the State's argument that it is proper that Baker serve at least the min imum sentence the Legislature intended for the crimes he committed. One month before Baker kidnaped and sexu ally 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 w ould thwart this legislative directive if we were to con clude that due process considerations require that Baker be al lowed to avoid the statutorily required minimum sentence bec ause the trial court failed to impose the mandated perio d of parole ineligibility, and the State failed to appea l 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 man dated for the crimes he has committed. The only possible relief

that Baker could obtain from either this court or t he district court on remand after further proceedings is that

he be released unless the state court resentences h im to an illegal sentence. See Orban v. Vaughn, 123 F.3d 727 , 731 n.1 (3d Cir. 1997). Surely, only the most compellin g circumstances could justify a federal court to gran t the extraordinary relief of requiring a state court to impose an illegal sentence as a condition of holding a prison er 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 circumstanc es, it is quite remarkable that he petitions for a writ of habeas

16corpus 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.

17POLLAK, District Judge, dissenting:

I.

As the court's opinion makes plain, one who, pursua nt to Strickland v. Washington, 466 U.S. 668 (1984), moun ts a challenge to a conviction and/or sentence on the gr ound of asserted ineffective assistance of counsel, must, i n order to prevail, show that (1) "counsel made errors so seri ous that counsel was not functioning as the `counsel' guaran teed the defendant by the Sixth Amendment," id. at 687, and (2) "there is a reasonable probability that, but for co unsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694.

I agree with the court's persuasive demonstration t hat 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 pos ture of this habeas corpus proceeding--in which we, as an appellate panel, are reviewing a district court den ial of the writ based on pleadings and legal argument, no evid entiary 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 Stric kland prong--a showing that there is a `reasonable probab ility that, but for' the error, there might have been a d ifferent result." The court's opinion argues with considerab le force the proposition that, even if Baker's trial attorne y had in 1987 been properly informed about the 1986 amendmen t of the statute governing sentence and had communicated that information to Baker, his client, the sentence ulti mately imposed on Baker would not have been less severe th an the sentence he now challenges. Very possibly so. But t he court's argument, while long on advocacy, is somewh at short on factual infrastructure--and this is unsurp rising, given that (1) no evidentiary record was made in th e district court and (2) it does not appear that any of the se veral proceedings in the state courts focused systematica lly in some factually comprehensive fashion on the sentenc ing aspect of Baker's ineffective-assistance-of-counsel claim. Accordingly, the appropriate course for this court to pursue

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

development of the facts.

The court eschews this course. The court states tha t "we will not remand so that the district court can pres ide over a charade in which witnesses testify about hypothet ical conduct." But characterizing the proposed district court inquiry as one which would address "hypothetical co nduct" does not mean that no inquiry is called for. Any in quiry into whether an acknowledged error--in this instanc e, the

ineffectiveness of counsel--was harmless or not nec essarily

calls for an assessment of the likelihood that a ro ad not taken might have brought the traveler to a destinat ion other the than one actually arrived at. Characteriz ing such an inquiry as "hypothetical" may signify that it co uld be instructively pursued in a law school classroom, bu t 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 di ssent.1

II.

If this case were to be remanded for further procee dings in the district court, I would think it proper that such further proceedings also encompass some inquiry int o a facet of the ineffective-assistance-of-counsel issu e which has not been addressed by the parties in briefing a nd arguing this appeal. I have in mind the question wh ether Baker was adequately advised by counsel who represe nted Baker in 1988, when, rather tardily, he undertook t ofile an appeal from his 1987 conviction. So far as I can de termine from the materials available to us on appeal, it ap pears likely that appellate counsel, at the time Baker's appeal was perfected, was, like trial counsel a year before, u naware of the 1986 amendment of the sentencing statute. If th at is the case, we have a second instance of ineffective-

___________________________________________________ ______________

1. Notwithstanding my disagreement with the court o n 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 ter m in conformity with

the strictures of the 1986 amendment of the sentenc ing statute did not work a denial of Baker's substantive due process ri ghts.

19assistance-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-as sistanceof-counsel may very well have been the factor which propelled Baker, through appellate counsel, to purs ue what proved to be the calamitous course of filing an app eal-- "calamitous" in that Baker's appeal set the stage f or the state's cross-appeal, leading to the longer sentenc e which Baker has challenged in this habeas corpus proceedi ng. Properly advised of the dramatically enhanced parol e ineligibility he might face were he to succeed on a ppeal and thereby gain a new trial, and, potentially, a secon d conviction, Baker might well have foregone filing t he 1988 direct appeal of his 1987 conviction. On the other hand it is indeed possible that, even if Baker had been pro perly advised of the large risk an appeal entailed, he wo uld 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 Str ickland 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 questi on of ineffective assistance of appellate counsel is unex hausted and hence not open to current scrutiny on Baker's p resent 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 rema nded to the district court for the further proceedings cont emplated in Part I, those further proceedings should, in my judgment, also entail inquiry into the issue identi fied in

Part II.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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