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. e du/thir dc ir c uit_1998/92Filed 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 Pennsyl vania 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 AppellantChristopher 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 gra nting Philip Meyers' petition for a writ of habeas corpus under 28
U.S.C. S 2254. The district court concluded that Me yers' trial attorneys rendered ineffective assistance whe n they gave Meyers incorrect advice as to his parole eligi bility; that Meyers relied on that advice to his prejudice; and he was
therefore entitled to habeas relief. For the reason s that follow, we will affirm.

I. BACKGROUND

On July 13, 1981, Philip Meyers killed Hugh Daily b y striking him several times with a baseball bat. Mey ers was subsequently charged with criminal homicide (first and second degree murder) and robbery. The robbery char ge was dismissed following a preliminary hearing. Meye rs 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,

2Pennsylvania imposed a mandatory sentence of life

imprisonment without the possibility of parole for a conviction of second degree murder. Therefore, a de fendant convicted of second degree murder could only be par oled 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 Me yers' plea, and he had a history of not commuting life se ntences. After a sentencing hearing on November 9, 1981, Mey ers was sentenced to the required period of life impris onment.

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 even tually filed a pro se petition under the Pennsylvania Post Conviction Hearing Act, 42 Pa. Con. Stat. Ann. S 95 41 et seq. ("PCHA"). The PCHA petition challenged the effectiveness of Meyers' trial counsel and the vali dity 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 testifie d that his trial counsel had advised him that if he pled g uilty 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 su bjected him to a mandatory life sentence without parole eli gibility. Id. at 40. Meyers' testimony was corroborated by on e of his trial attorneys. She testified:

I think [Meyers] clearly misunderstood discu ssions that we had concerning the amount of time that he was going to do. We did have discussions with hi m concerning the amount of time that we expect ed that he would do. And quite frankly we based that on our knowledge, at the time, of the amount of yea rs that people were serving in a state institution o n homicide cases, be they first degree or second degree prior to the time. The sentences were being commuted at t hat time by the Governor at the time. That's why I re member the statistics showed that people who were

3incarcerated on second degree murder were be ing

paroled several years prior to the time or s entences being commuted.

Id. at 47.

On August 8, 1991, the Court of Common Pleas dismissed Meyers' petition for post-conviction reli ef. 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 complet ely advised of the requisite constitutional and statuto ry rights in his 1981 guilty plea colloquy." App. at 105. The court also found that Meyers received effective assistanc e of counsel because "the advice counsel gave defendant regarding real time he would be incarcerated was ac curate at the time it was given." Id. at 111. Accordingly, the court did not make specific findings concerning whether M eyers would have pled guilty had his trial attorneys spec ifically informed him that his plea required that he be sent enced 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 prese nted at the PCHA hearings in state court. The district cour t held an evidentiary hearing on July 17, 1994. During that h earing, Meyers testified that his trial attorneys had advis ed him that they had reviewed a report which showed that M ilton Shapp (who had been governor of Pennsylvania prior to Dick Thornburgh) had commuted the sentences of peop le convicted of second degree murder. App. at 134. How ever, Shapp was not governor when counsel was advising Me yers on how to proceed. Meyers further testified that he did not recall his attorneys ever using the term "commutati on" 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 cour t granted habeas relief. However, the court did not r ely upon

4Meyers' claim of ineffective assistance of trial co unsel.

Rather, the court sustained Meyers' attack on the g uilty plea colloquy. The court ruled that the colloquy wa s invalid under Pennsylvania law because the factual basis fo r the plea was not established until after the plea had b een 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 estab lished prior to entry of the guilty plea. Id. at 1150. Mor eover, we noted that establishing a factual basis for a guilt y 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 ineffectiv e 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, th e court
focused on the claim of ineffective assistance of c ounsel. The court found that Meyers had been told that he w ould be eligible for parole despite pleading guilty to s econd degree murder, that the advice was grossly misleadi ng, and but for this misleading advice, there was a reasona ble 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 effe ctive
assistance of counsel. See U.S. CONST. amend. VI. However, a defendant is only entitled to habeas rel ief for a violation of that right if he or she establishes in effectiveness as well as resultant prejudice. Strickland, 466 U.S . at 687. This applies to representation during the plea proc ess as well as representation during a trial. Hill v. Lock hart, 474 U.S. 52, 58 (1985); see also, Bivens v. Groose, 28 F.3d 62, 63 (8th Cir. 1994). Furthermore, several other cour ts have

___________________________________________________ ______________

1. Strickland v. Washington, 466 U.S. 668, 687 (198 4).

5held that a defendant may be entitled to habeas rel ief if

counsel provides parole eligibility information tha t proves to be grossly erroneous and defendant can show that he would not have plead guilty in the absence of the e rroneous 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, 5 00-01 (4th Cir. 1983); Cepulonis v. Ponte, 699 F.2d 573, 577 (1st Cir. 1983); Strader v. Garrison, 611 F.2d 61, 65 (4 th Cir. 1979).

A. Deficient Performance

Meyers' representation will not be deemed ineffecti ve unless it "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. He re, the state court found that the advice given to Meyers w as accurate and concluded that trial counsels' represe ntation was therefore not deficient. App. at 111.2 The dist rict court disagreed and concluded that trial counsels' advice was "grossly misleading." Under 28 U.S.C. S 2254, a fed eral court ordinarily must presume that state court find ings of fact are correct. See Jackson v. Byrd, 105 F.3d 145 , 147 (3d Cir. 1997). However, this presumption of correc tness does not apply if the state court's findings are no t fairly supported by the record. Pemberthy v. Beyer, 19 F.3 d 857, 864 (3d Cir. 1994). The district court found that t he record did not support the state court's conclusion that t he "advice counsel gave defendant regarding the possib le real
time he would be incarcerated was accurate at the t ime it was given." D. Ct. Op. at 40. We agree. The state c ourt's finding is clearly inconsistent with this record.

The record is replete with instances where Meyers w as informed that he would become eligible for parole s ometime in the future despite pleading guilty to a crime th at carried a mandatory period of life imprisonment as the only

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2. We noted in our first Meyers opinion that a defe ndant does not have a constitutional right to be provided with parole e ligibility information prior to entering a plea. Meyers v. Gillis, 93 F.3d at 1153 (citations omitted). However, we also noted that any informati on that is provided by defense counsel must be accurate. Id.

6authorized sentence. Such statements were even made

during the sentencing hearing in the presence of th e judge and prosecutor, and neither made any effort to clar ify Meyers' ineligibility for parole. At sentencing, th e lead
defense counsel told the court of individuals who w ould write to the Parole Board on Meyers' behalf and voc ational opportunities which might exist for him "when he ge ts back on the street," as the trial court and prosecutor l istened in silence. App. at 12-13 (emphasis added). Apparently
, defense counsel mistakenly believed that their clie nt would be eligible for parole.

Co-counsel also used the term "parole" and implied that Meyers could serve less than life in prison when sh e 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 in to
consideration that it was the best resolutio n. And was probably at some point going to result in Mr . Meyers being paroled in a shorter period of time th en 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 o n a plea to second degree, as opposed to first degree, murde r. He testified before the district court in opposition t o Meyers' habeas petition that he did not understand defense counsels' position because first and second degree murder both carried a mandatory sentence of life imprisonm ent without parole. The prosecutor described his conver sation with the public defenders as follows:

I wanted a plea to first degree murder and d id not understand the distinction they were drawing between first and second degree murder. They both ca rried life

sentences.

Our initial offer is we would not seek the d eath penalty, agreed to a life sentence if he plead guilty tofirst

7degree murder. [Counsel] was insisting on se cond

degree murder. I do not see the distinction.

They mentioned regarding commutation of sent ences 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 prer equisite of "commutation" was never explained to Meyers, and that Meyers did not realize he was, in all reality, plea ding guilty to an offense that did not allow him to receive par ole in the

future.

Moreover, even if defense counsel had explained tha t Meyers' parole eligibility was contingent upon havi ng 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 receiv ed commutations under Governor Shapp. The report is misleading at best. As noted above, Shapp was not t he governor in 1981 when Meyers entered his guilty ple a, and there was no way to predict whether then Governor Thornburgh would commute life sentences. Moreover, this report may have included individuals convicted of s econd degree murder before 1974 when second degree murder was punishable by imprisonment for a term of years and parole was possible.3

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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 inclu ded 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 an d redefined second degree murder. Under the new Code that was i n effect when Meyers pled guilty, second degree murder was limite d to the codification of the "felony-murder rule." One commits second deg ree murder under
the revised Crimes Code when a death occurs "while defendant was engaged as a principal or an accomplice in the perp etration of a felony," 18 Pa.C.S. S 2502(b).

8In 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 ot her hand, the contrary finding of the district court is consistent with this record, and we therefore conclude that th e 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 h im from a possible conviction for first degree murder that
could have resulted in his execution.

To succeed in showing prejudice, Meyers must show t hat it is reasonably probable that, but for the erroneo us 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 Strickl and, 466 U.S. at 694). It is difficult for any court to dete rmine in hindsight whether a criminal defendant would have p led guilty had he received competent advice from counse l. However, that difficulty cannot restrict our analys is nor cause us to deny relief that is otherwise appropria te and required under the law. See Hill, 474 U.S. at 60. O ur task is further complicated by a delay of over sixteen y ears 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 probab ility that, but for counsels' erroneous advice, he would not have pled guilty, and that he has been prejudiced by doi ng so.

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4. We note, however, that the petitioner is not res ponsible for this delay.

9As noted above, Meyers testified before the distric t 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 cour t found that testimony to be credible, and we will not set aside that court's fact findings unless they are clearly erron eous. 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 i s consistent with Meyers' arguably self serving testi mony. Meyers consistently asserted that the murder was no t 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 dropp ed 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 t ried to molest me. And I grabbed the baseball bat an d hit him.

App. at 205-06. We, of course, have no way of knowi ng if a fact finder would have accepted this testimony. H owever, this assertion is relevant to the Commonwealth's in sistence that Meyer was not prejudiced because he avoided ex posure 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 murde r. See 18 Pa.C.S. S 2502(a). As a result, Meyers' offense cou ld have been reduced to third degree murder, 18 Pa.C.S. S 2 502(c), with a maximum penalty of not more than 20 years imprisonment. 18 Pa.C.S. S 1103(1)(1983). Furthermo re,

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5. Because the state court ruled that Meyers did no t satisfy the first Strickland prong, the court did not make a credibil ity determination as to this testimony.

10there is evidence that Meyers, who had a long histo ry 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. S ee Commonwealth v. Hathaway, 347 Pa. Super. 134, 146, 500 A.2d 443, 449 (Pa. Super. 1985) ("The diminished ca pacity
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 murde r.").

The evidence that Meyers killed the victim only aft er being assaulted by him also introduces an element o f self defense and such mitigation as could have reduced t he 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 th e 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 actin g under a sudden and intense passion resulting from serious provocation . . . ." 18 Pa.C.S. S 2503(a). The maxi mum sentence Meyers could have received for a convictio n for voluntary manslaughter was 10 years imprisonment. 1 8 Pa.C.S. S 1103(2)(1983). Meyers was also only eight een years old at the time of the offense, and he did no t 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 i ts case against Meyers included a statement by a frien d of Meyers who stated that Meyers told him he intended to rob the victim. Accordingly, the Commonwealth claims th at this was a case where the felony-murder rule appropriate ly applied. Thus, argues the Commonwealth, Meyers was realistically facing no less than second degree mur der anyway and was, therefore, not prejudiced by his pl ea. 18 Pa.C.S. S 2502(b). However, the charge of robbery d id not survive the preliminary hearing. We cannot determin e if Meyers' friend would have testified for the Commonw ealth or whether his testimony was credible. At oral argu ment, defense counsel asserted, without contradiction, th at this
witness has never testified under oath nor been fou nd

11credible by a fact finder. Therefore, that testimon y 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 Me yers was motivated to plead guilty to avoid exposure to the death penalty. One of his trial attorneys did testi fy that she was concerned about that exposure, app. at 55 & 172 , but Meyers testified that he was concerned with the imp act of a trial on his family, and he was influenced by the likelihood of parole in the future. Id. at 146. Alt hough 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 un dermines that position and leads us to affirm the contraryfi nding of the district court. Cf. Czere, 883 F.2d at 64 (find ing petitioner was not prejudiced by improper advice fr om counsel as to parole eligibility because petitioner 's paramount concern was to avoid the death penalty, n ot parole).

III. CONCLUSION

Thus, for the reasons set forth above, we conclude that Meyers was prejudiced by the erroneous advice his t rial counsel gave him. Accordingly, we will affirm the j udgment
of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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