1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-27-1998

Meyers v. Gillis

Precedential or Non-Precedential:

Docket 97-1750

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Recommended Citation

"Meyers v. Gillis" (1998). 1998 Decisions. Paper 92.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/92
Filed April 27, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1750 

PHILIP MEYERS 

v. 

FRANK D. GILLIS, SUPERINTENDENT, et al.; 

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA; THE DISTRICT ATTORNEY OF 

BUCKS COUNTY 

 Frank D. Gillis, Superintendent, 

 The Attorney General of the State of Pennsylvania 

 and District Attorney of Bucks County, 

 Appellants 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

Civil Action No. 94-CV-7160 

Argued: March 27, 1998 

Before: MANSMANN, ROTH and McKEE, Circuit Judges 

(Opinion Filed: April 27, 1998) 

 Troy E. Leitzel 

 Heather A. Castellino 

 Stephen B. Harris (Argued) 

 Alan M. Rubenstein 

 Office of District Attorney 

 55 East Court Street 

 Bucks County Courthouse 

 Doylestown, PA 18901 

 Attorneys for Appellant 
 Christopher D. Warren (Argued) 

 DeStafano & Warren, P.C. 

 The Lafayette Building 

 Suite 1006 

 437 Chestnut Street 

 Philadelphia, PA 19106 

 Thomas A. Bello 

 The Curtis Center 

 Suite 1150 

 Independence Square West 

 7th and Walnut Streets 

 Philadelphia, PA 19106 

 Attorneys for Appellee 

OPINION OF THE COURT 

McKEE, Circuit Judge. 

We are asked to decide if the district erred in granting 

Philip Meyers' petition for a writ of habeas corpus under 28 

U.S.C. S 2254. The district court concluded that Meyers' 

trial attorneys rendered ineffective assistance when they 

gave Meyers incorrect advice as to his parole eligibility; that 

Meyers relied on that advice to his prejudice; and he was 

therefore entitled to habeas relief. For the reasons that 

follow, we will affirm. 

I. BACKGROUND 

On July 13, 1981, Philip Meyers killed Hugh Daily by 

striking him several times with a baseball bat. Meyers was 

subsequently charged with criminal homicide (first and 

second degree murder) and robbery. The robbery charge 

was dismissed following a preliminary hearing. Meyers was 

represented by two attorneys from the Bucks County Public 

Defender's Office. On October 21, 1981, following 

discussions with defense counsel, the Commonwealth 

withdrew the first degree murder charge and Meyers 

entered a plea of guilty to second degree murder in the 

Pennsylvania Court of Common Pleas. At that time, 

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Pennsylvania imposed a mandatory sentence of life 

imprisonment without the possibility of parole for a 

conviction of second degree murder. Therefore, a defendant 

convicted of second degree murder could only be paroled if 

the governor, upon recommendation of the Board of 

Pardons, first commuted the life sentence to a term of 

imprisonment for a period of years. See Pa. CONST. art. 4, 

S 9. Dick Thornburgh was governor at the time of Meyers' 

plea, and he had a history of not commuting life sentences. 

After a sentencing hearing on November 9, 1981, Meyers 

was sentenced to the required period of life imprisonment. 

On November 30, 1981, Meyers filed a motion to 

withdraw his plea nunc pro tunc and for appointment of 

new counsel. However, the sentencing court did not act on 

that motion for nearly seven years, and Meyers eventually 

filed a pro se petition under the Pennsylvania Post

Conviction Hearing Act, 42 Pa. Con. Stat. Ann. S 9541 et 

seq. ("PCHA"). The PCHA petition challenged the 

effectiveness of Meyers' trial counsel and the validity of his 

guilty plea. 

The Court of Common Pleas conducted evidentiary 

hearings on the PCHA petition on May 26, 1989, and 

December 19, 1989. At the hearings, Meyers testified that 

his trial counsel had advised him that if he pled guilty to 

second degree murder he would get life imprisonment but 

would be "eligible for parole in seven years." App. at 32. He 

also testified that he had no idea that the plea subjected 

him to a mandatory life sentence without parole eligibility. 

Id. at 40. Meyers' testimony was corroborated by one of his 

trial attorneys. She testified: 

 I think [Meyers] clearly misunderstood discussions that 

 we had concerning the amount of time that he was 

 going to do. We did have discussions with him 

 concerning the amount of time that we expected that 

 he would do. And quite frankly we based that on our 

 knowledge, at the time, of the amount of years that 

 people were serving in a state institution on homicide 

 cases, be they first degree or second degree prior to the 

 time. The sentences were being commuted at that time 

 by the Governor at the time. That's why I remember 

 the statistics showed that people who were 

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 incarcerated on second degree murder were being 

 paroled several years prior to the time or sentences 

 being commuted. 

Id. at 47. 

On August 8, 1991, the Court of Common Pleas 

dismissed Meyers' petition for post-conviction relief. The 

state court ruled that Meyers' plea was valid. The judge 

found Meyers' testimony "not to be credible, to the extent 

that he indicated that he was not fully and completely 

advised of the requisite constitutional and statutory rights 

in his 1981 guilty plea colloquy." App. at 105. The court 

also found that Meyers received effective assistance of 

counsel because "the advice counsel gave defendant 

regarding real time he would be incarcerated was accurate 

at the time it was given." Id. at 111. Accordingly, the court 

did not make specific findings concerning whether Meyers 

would have pled guilty had his trial attorneys specifically 

informed him that his plea required that he be sentenced to 

life in prison without parole. On October 29, 1993, the 

Superior Court of Pennsylvania affirmed, and the 

Pennsylvania Supreme Court subsequently denied 

allocatur. 

On November 28, 1994, Meyers filed a petition for a writ 

of habeas corpus under 28 U.S.C. S 2254 in federal district 

court. He raised the same basic claims he had presented at 

the PCHA hearings in state court. The district court held an 

evidentiary hearing on July 17, 1994. During that hearing, 

Meyers testified that his trial attorneys had advised him 

that they had reviewed a report which showed that Milton 

Shapp (who had been governor of Pennsylvania prior to 

Dick Thornburgh) had commuted the sentences of people 

convicted of second degree murder. App. at 134. However, 

Shapp was not governor when counsel was advising Meyers 

on how to proceed. Meyers further testified that he did not 

recall his attorneys ever using the term "commutation" 

during their discussions. Id. at 136. He stated "if I had 

known I was never eligible for parole, I would not have 

plead [sic] guilty." Id. at 146. 

By order dated September 6, 1995, the district court 

granted habeas relief. However, the court did not rely upon 

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Meyers' claim of ineffective assistance of trial counsel. 

Rather, the court sustained Meyers' attack on the guilty 

plea colloquy. The court ruled that the colloquy was invalid 

under Pennsylvania law because the factual basis for the 

plea was not established until after the plea had been 

accepted. The Commonwealth appealed from that order, 

and we reversed. Meyers v. Gillis, 93 F.3d 1147 (3d Cir. 

1996). We held that the record fairly supported the state 

court's finding that a factual basis had been established 

prior to entry of the guilty plea. Id. at 1150. Moreover, we 

noted that establishing a factual basis for a guilty plea is 

not a condition precedent to acceptance of the plea, and the 

initial failure to establish the factual basis did not amount 

to a due process violation. Id. at 1151. Since the district 

court had not addressed Meyers' claim of ineffective 

assistance of counsel, we remanded the case so the court 

could address that issue. 

On remand, the district court again granted Meyers'

petition for a writ of habeas corpus. This time, the court 

focused on the claim of ineffective assistance of counsel. 

The court found that Meyers had been told that he would 

be eligible for parole despite pleading guilty to second 

degree murder, that the advice was grossly misleading, and 

but for this misleading advice, there was a reasonable 

probability that Meyers would have pled not guilty and gone 

to trial. D. Ct. Op. at 46. Accordingly, the court held that 

Meyers was entitled to relief under Strickland1 and its 

progeny. This appeal followed. 

II. DISCUSSION 

A criminal defendant is entitled to reasonably effective 

assistance of counsel. See U.S. CONST. amend. VI. 

However, a defendant is only entitled to habeas relief for a 

violation of that right if he or she establishes ineffectiveness 

as well as resultant prejudice. Strickland, 466 U.S. at 687. 

This applies to representation during the plea process as 

well as representation during a trial. Hill v. Lockhart, 474 

U.S. 52, 58 (1985); see also, Bivens v. Groose, 28 F.3d 62, 

63 (8th Cir. 1994). Furthermore, several other courts have 

_________________________________________________________________ 

1. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

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held that a defendant may be entitled to habeas relief if 

counsel provides parole eligibility information that proves to 

be grossly erroneous and defendant can show that he

would not have plead guilty in the absence of the erroneous 

information. See, e.g., Sparks v. Sowders, 852 F.2d 882, 

885 (6th Cir. 1988); Czere v. Butler, 833 F.2d 59, 63 n. 6 

(5th Cir. 1987): O'Tuel v. Osborne, 706 F.2d 498, 500-01 

(4th Cir. 1983); Cepulonis v. Ponte, 699 F.2d 573, 577 (1st 

Cir. 1983); Strader v. Garrison, 611 F.2d 61, 65 (4th Cir. 

1979). 

A. Deficient Performance 

Meyers' representation will not be deemed ineffective 

unless it "fell below an objective standard of 

reasonableness." Strickland, 466 U.S. at 687-88. Here, the 

state court found that the advice given to Meyers was 

accurate and concluded that trial counsels' representation 

was therefore not deficient. App. at 111.2 The district court 

disagreed and concluded that trial counsels' advice was 

"grossly misleading." Under 28 U.S.C. S 2254, a federal 

court ordinarily must presume that state court findings of 

fact are correct. See Jackson v. Byrd, 105 F.3d 145, 147 

(3d Cir. 1997). However, this presumption of correctness 

does not apply if the state court's findings are not fairly 

supported by the record. Pemberthy v. Beyer, 19 F.3d 857, 

864 (3d Cir. 1994). The district court found that the record 

did not support the state court's conclusion that the 

"advice counsel gave defendant regarding the possible real 

time he would be incarcerated was accurate at the time it 

was given." D. Ct. Op. at 40. We agree. The state court's 

finding is clearly inconsistent with this record. 

The record is replete with instances where Meyers was 

informed that he would become eligible for parole sometime 

in the future despite pleading guilty to a crime that carried 

a mandatory period of life imprisonment as the only

_________________________________________________________________ 

2. We noted in our first Meyers opinion that a defendant does not have 

a constitutional right to be provided with parole eligibility information 

prior to entering a plea. Meyers v. Gillis, 93 F.3d at 1153 (citations 

omitted). However, we also noted that any information that is provided 

by defense counsel must be accurate. Id. 

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authorized sentence. Such statements were even made

during the sentencing hearing in the presence of the judge 

and prosecutor, and neither made any effort to clarify 

Meyers' ineligibility for parole. At sentencing, the lead 

defense counsel told the court of individuals who would 

write to the Parole Board on Meyers' behalf and vocational 

opportunities which might exist for him "when he gets back 

on the street," as the trial court and prosecutor listened in 

silence. App. at 12-13 (emphasis added). Apparently, 

defense counsel mistakenly believed that their client would 

be eligible for parole. 

Co-counsel also used the term "parole" and implied that 

Meyers could serve less than life in prison when she later 

testified at the PCHA hearing and explained why she felt 

pleading to second degree murder was appropriate 

 I believe at the time, taking all factors into 

 consideration that it was the best resolution. And was 

 probably at some point going to result in Mr. Meyers 

 being paroled in a shorter period of time then he would 

 have been had he been found guilty of first degree and 

 received the death penalty . . . . 

App. at 55-56. She further acknowledged that Meyers

misunderstood their discussions concerning parole 

eligibility. App. at 47. 

Even the Assistant District Attorney who prosecuted the 

matter was confused by trial counsels' insistence on a plea 

to second degree, as opposed to first degree, murder. He 

testified before the district court in opposition to Meyers' 

habeas petition that he did not understand defense 

counsels' position because first and second degree murder 

both carried a mandatory sentence of life imprisonment 

without parole. The prosecutor described his conversation 

with the public defenders as follows: 

 I wanted a plea to first degree murder and did not 

 understand the distinction they were drawing between 

 first and second degree murder. They both carried life 

 sentences. 

 Our initial offer is we would not seek the death penalty, 

 agreed to a life sentence if he plead guilty tofirst 

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 degree murder. [Counsel] was insisting on second 

 degree murder. I do not see the distinction.

 They mentioned regarding commutation of sentences or 

 the possibility of Mr. Meyers being released at some 

 point in the future and that would increase with the 

 second degree plea. 

App. at 151-52. Despite this casual reference to 

"commutation," it is clear that the procedural prerequisite 

of "commutation" was never explained to Meyers, and that 

Meyers did not realize he was, in all reality, pleading guilty 

to an offense that did not allow him to receive parole in the 

future. 

Moreover, even if defense counsel had explained that 

Meyers' parole eligibility was contingent upon having his 

life sentence commuted, defense counsels' reliance on an 

ambiguous report regarding parole eligibility would still 

have hopelessly confused the situation. That report appears 

to have tracked the number of individuals convicted of 

second degree murder who were paroled or who received 

commutations under Governor Shapp. The report is 

misleading at best. As noted above, Shapp was not the 

governor in 1981 when Meyers entered his guilty plea, and 

there was no way to predict whether then Governor 

Thornburgh would commute life sentences. Moreover, this 

report may have included individuals convicted of second 

degree murder before 1974 when second degree murder

was punishable by imprisonment for a term of years and 

parole was possible.3 

_________________________________________________________________ 

3. Prior to 1974, the Pennsylvania Crimes Code only contained murder 

in the first degree and murder in the second degree. First degree murder 

included not only premeditated, intentional killing, but the concept of 

"felony-murder" as well. Second degree murder included all murders 

other than first degree murder. 18 Pa.C.S.A. S 2502 (Historical Note). The 

General Assembly amended the Crimes Code in 1974 and redefined 

second degree murder. Under the new Code that was in effect when 

Meyers pled guilty, second degree murder was limited to the codification 

of the "felony-murder rule." One commits second degree murder under 

the revised Crimes Code when a death occurs "while defendant was 

engaged as a principal or an accomplice in the perpetration of a felony," 

18 Pa.C.S. S 2502(b). 

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In any event, we are satisfied that the state court's 

finding regarding the accuracy of the advice Meyers

received is not supported by this record. On the other 

hand, the contrary finding of the district court is consistent 

with this record, and we therefore conclude that the district 

court did not err in ruling that defense counsels' 

stewardship fell below that required by the Sixth 

Amendment. Accordingly, we turn to the second prong of 

our Strickland analysis. 

B. Prejudice 

The Commonwealth argues that, even if Meyers has 

established counsels' ineffectiveness, he cannot 

demonstrate prejudice because he has not shown that he 

would not have pled guilty but for the advice. The 

Commonwealth also argues that Meyers' plea spared him 

from a possible conviction for first degree murder that 

could have resulted in his execution. 

To succeed in showing prejudice, Meyers must show that 

it is reasonably probable that, but for the erroneous advice 

of his trial counsel, he would have pled not guilty and gone 

to trial. James v. Cain, 56 F.3d 662 (5th Cir. 1995)(citing 

Czere v. Butler, 833 F.2d 59, 63 (5th Cir. 1987)). "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, 466 

U.S. at 694). It is difficult for any court to determine in 

hindsight whether a criminal defendant would have pled 

guilty had he received competent advice from counsel. 

However, that difficulty cannot restrict our analysis nor 

cause us to deny relief that is otherwise appropriate and 

required under the law. See Hill, 474 U.S. at 60. Our task 

is further complicated by a delay of over sixteen years since 

the entry of the plea.4 However, given the totality of the 

circumstances, we conclude that Meyers has met his 

burden of showing that there is a reasonable probability 

that, but for counsels' erroneous advice, he would not have 

pled guilty, and that he has been prejudiced by doing so. 

_________________________________________________________________ 

4. We note, however, that the petitioner is not responsible for this 

delay. 

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As noted above, Meyers testified before the district court 

that he would not have pled guilty had he known he would 

not be eligible for parole. Meyers testified that"[i]f I had 

known I was never eligible for parole, I would not have 

plead [sic] guilty." App. at 146. The district court found that 

testimony to be credible, and we will not set aside that 

court's fact findings unless they are clearly erroneous. 

Monachelli v. Warden, SCI Graterford, 884 F.2d 749, 750 

(3d Cir. 1989). Meyers' testimony in state court is

consistent with the federal court testimony.5 App. at 32, 40 

& 101. 

Moreover, the record contains other evidence that is 

consistent with Meyers' arguably self serving testimony. 

Meyers consistently asserted that the murder was not 

premeditated but a response to the victim grabbing him. 

App. at 31. During his confession on July 15, 1981, he 

stated that 

 The [victim] picked me up hitch-hiking. . . . We went to 

 to [sic] the bar, had a few drinks. He dropped me off 

 back at my tent. When I went back to my tent he 

 followed me back there and, I don't know how to 

 phrase it, you could say he assaulted me. He -- I don't 

 know how you want to say it, but he came up to me 

 from behind and startled me, for sure, and tried to 

 molest me. And I grabbed the baseball bat and hit him. 

App. at 205-06. We, of course, have no way of knowing if 

a fact finder would have accepted this testimony. However, 

this assertion is relevant to the Commonwealth's insistence 

that Meyer was not prejudiced because he avoided exposure 

to the death penalty. Based on this account, it is certainly 

a realistic possibility that defense counsel could have raised 

a reasonable doubt as to Meyers' specific intent to kill and 

thereby avoided a conviction for first degree murder. See 18 

Pa.C.S. S 2502(a). As a result, Meyers' offense could have 

been reduced to third degree murder, 18 Pa.C.S. S 2502(c), 

with a maximum penalty of not more than 20 years 

imprisonment. 18 Pa.C.S. S 1103(1)(1983). Furthermore, 

_________________________________________________________________ 

5. Because the state court ruled that Meyers did not satisfy the first 

Strickland prong, the court did not make a credibility determination as 

to this testimony. 

 10 
there is evidence that Meyers, who had a long history of 

substance abuse, was under the influence of alcohol

and/or drugs at the time of the murder. Under 

Pennsylvania law, evidence of "diminished capacity" could 

also reduce Meyers' crime to third degree murder. See 

Commonwealth v. Hathaway, 347 Pa. Super. 134, 146, 500 

A.2d 443, 449 (Pa. Super. 1985) ("The diminished capacity 

defense assumes the defendant is sane but lacks the ability 

to form a specific intent to kill, and thus reduces the 

charge of first degree murder to third degree murder."). 

The evidence that Meyers killed the victim only after 

being assaulted by him also introduces an element of self 

defense and such mitigation as could have reduced the 

killing to voluntary manslaughter, a second degree felony. 

18 Pa.C.S. S 2503. Under Pennsylvania law, a person

commits voluntary manslaughter if at the time of the killing 

"he believes the circumstances to be such, that, if they 

existed, would justify the killing . . . , but his belief is 

unreasonable," 18 Pa.C.S. S 2503(b), or"he is acting under 

a sudden and intense passion resulting from serious

provocation . . . ." 18 Pa.C.S. S 2503(a). The maximum 

sentence Meyers could have received for a conviction for 

voluntary manslaughter was 10 years imprisonment. 18 

Pa.C.S. S 1103(2)(1983). Meyers was also only eighteen 

years old at the time of the offense, and he did not have a 

history of violent crime. Thus, Meyers' exposure to the 

death penalty is less than a certainty. 

In contrast, the Commonwealth argues that part of its 

case against Meyers included a statement by a friend of 

Meyers who stated that Meyers told him he intended to rob 

the victim. Accordingly, the Commonwealth claims that this 

was a case where the felony-murder rule appropriately 

applied. Thus, argues the Commonwealth, Meyers was 

realistically facing no less than second degree murder 

anyway and was, therefore, not prejudiced by his plea. 18 

Pa.C.S. S 2502(b). However, the charge of robbery did not 

survive the preliminary hearing. We cannot determine if 

Meyers' friend would have testified for the Commonwealth 

or whether his testimony was credible. At oral argument, 

defense counsel asserted, without contradiction, that this 

witness has never testified under oath nor been found 

 11 
credible by a fact finder. Therefore, that testimony is not 

part of the record in this appeal, and we cannot go beyond 

the record to refute Meyers' assertion of prejudice. 

In addition, this record does not establish that Meyers 

was motivated to plead guilty to avoid exposure to the 

death penalty. One of his trial attorneys did testify that she 

was concerned about that exposure, app. at 55 & 172, but 

Meyers testified that he was concerned with the impact of 

a trial on his family, and he was influenced by the

likelihood of parole in the future. Id. at 146. Although the 

impact of a trial on his family supports the 

Commonwealth's theory that Meyers would have plead 

guilty anyway, the totality of Meyers' testimony undermines 

that position and leads us to affirm the contraryfinding of 

the district court. Cf. Czere, 883 F.2d at 64 (finding 

petitioner was not prejudiced by improper advice from 

counsel as to parole eligibility because petitioner's 

paramount concern was to avoid the death penalty, not 

parole). 

III. CONCLUSION 

Thus, for the reasons set forth above, we conclude that 

Meyers was prejudiced by the erroneous advice his trial 

counsel gave him. Accordingly, we will affirm the judgment 

of the district court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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