2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-2002

Scarbrough v. Johnson

Precedential or Non-Precedential: Precedential

Docket No. 01-3665

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Scarbrough v. Johnson" (2002). 2002 Decisions. Paper 478.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/478
PRECEDENTIAL 

 Filed August 6, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-3665 

MICHAEL SCARBROUGH 

v. 

PHILIP JOHNSON, 

 Appellant 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. No. 01-cv-01014) 

District Judge: Honorable Donald J. Lee 

Argued April 30, 2002 

Before: NYGAARD, ROTH, and WEIS, Circuit Judges 

Filed: August 6, 2002 

 Paul M. Petro, Esquire (ARGUED) 

 John C. Pettit, Esquire 

 Office of the District Attorney 

 1 South Main Street 

 Washington, Pennsylvania 15301 

 Counsel for Appellant 

 

 Salvatore C. Adamo, Esquire 

 (ARGUED) 

 Two Penn Center Plaza 

 Suite 200 

 Philadelphia, Pennsylvania 

 19102-1706 

 Counsel for Appellee 

OPINION OF THE COURT 

WEIS, Circuit Judge. 

Petitioner Michael Scarbrough pleaded guilty to second 

degree murder in the Court of Common Pleas of 

Washington County, Pennsylvania in 1995 and was 

sentenced to life imprisonment. In obtaining a writ of 

habeas corpus he alleged ineffective assistance of counsel, 

contending that his attorney’s advice as to future parole 

eligibility was inaccurate and, consequently, his guilty plea 

was invalid. We conclude that Scarbrough was correctly 

informed about the possibility of parole under Pennsylvania 

law during the state court proceedings. Accordingly, he was 
not misled and his plea was voluntary. We will, therefore, 

reverse the grant of habeas corpus by the District Court. 

In October 1994, petitioner Scarbrough and two 

accomplices forcibly entered a home in Washington, 

Pennsylvania. Scarbrough shot and killed one person and 

the trio took jewelry from another. All three were charged 

with criminal homicide, conspiracy, robbery and burglary. 

The district attorney sought a first degree murder 

conviction and the death penalty for all defendants. 

As the trial was about to begin, Scarbrough’s two codefendants decided to plead guilty and agreed to testify 

against him. The trial judge then conducted a hearing with 

Scarbrough, his counsel and the District Attorney. The 

judge’s intention was to be sure that Scarbrough 

"understands what the plea offers [made to him] are so 

there is no mistake." Accordingly, the judge reviewed the 

homicide charges and explained in detail the various 

penalties. He informed Scarbrough that the penalty for first 

 2 

 

degree murder was "either a life sentence or a death 

sentence." As for second degree murder, "the Court has no 

discretion, it’s an automatic life sentence." 

Defense counsel added that the Commonwealth’s most 

recent plea offer, made that morning, involved a"plea to 

Second Degree Murder, [the] penalty would be life 

imprisonment with a possibility of parole" and, if the 

prosecution requested, Scarbrough would testify against 

any remaining co-defendants and others. The sentences for 

the robbery, burglary and conspiracy charges would run 

concurrently. In other words, defense counsel concluded, 

"[t]here would not be any additional time. It would be a life 

sentence. . . . [N]othing . . . would interfere with his ability 

to have a sentence commuted and eventually be paroled 

. . . ." 

The trial judge reminded Scarbrough that "there is no 

guarantee for -- we do not handle paroles or anything of 

that nature, neither [does] the Court, nor the District 

Attorney. That falls within the Department of Probation and 

Parole and the governor as to whether or not they would 

parole you." The judge continued, "Now, years ago a life 

sentence meant you served maybe 17, 18 years and they 

would consider you maybe up for parole. Things have 

changed now. Honestly I can’t tell you what would happen." 

The judge reiterated that second degree murder called for 

a life sentence, although "[m]aybe they would or wouldn’t 

consider something less than full life." He warned, however, 

that if Scarbrough were also convicted of burglary, robbery 

or conspiracy, "I’m sure there would be no possibility of 

parole. I can’t guarantee you anything." 

After the lengthy discussion, Scarbrough decided to reject 

the Commonwealth’s offer. Later that afternoon, however, 
he changed his mind and accepted the plea bargain. During 

the plea colloquy in open court that followed, the district 

attorney said that "Second Degree Murder carries with it a 

life sentence with the possibility of parole." He 

recommended concurrent sentences for the other offenses 

so that "in the event there is at some point in time an 

opportunity for him to be considered for parole, these other 

charges would not in any way interfere." 

 3 

 

The judge stated on at least three occasions during the 

colloquy that second degree murder carried a life sentence. 

Toward the conclusion of the proceeding, the court again 

emphasized that there was "no guarantee[ ] here on parole 

or anything like that. We have no jurisdiction over that." At 

each of these junctures, Scarbrough was asked whether he 

understood the implications of his plea, and each time the 

response was that he did. 

When the Court pronounced sentence "for the remainder 

of his natural life," Scarbrough turned to his attorney and 

asked if he would never be eligible for parole. The judge 

replied, 

 "As I explained to him, that’s up to the Department of 

 Probation and Parole. [The district attorney] here said 

 he was going to leave something in the notes here, he’s 

 not against the possibility of parole, and he would not 

 thwart that in any way when that comes up, and he 

 will leave a record here to so indicate." 

 . . . "I can’t make any promises for the Parole Board." 

Scarbrough said that that "explained it" and the Court then 

entered judgment. 

One year later, Scarbrough filed for state post-conviction 

relief, asserting that his counsel had incorrectly advised 

him about parole eligibility. Both Scarbrough and his trial 

counsel testified at the hearing. The same judge who had 

conducted the plea colloquy presided over the postconviction proceedings. At its conclusion he held,"this 

court has no reservation based upon the evidence and 

testimony in concluding that the primary and only 

motivating factor in petitioner’s acceptance of the plea 

agreement was to escape the real possibility of a first degree 

murder conviction and death penalty." 

The judge also noted that unlike the defendant in Meyers 

v. Gillis, 142 F.3d 664 (3d Cir. 1998), Scarbrough did not 

and could not have alleged that he had acted in self 

defense. There were simply no mitigating circumstances in 

the case at hand, where only Scarbrough and his 

confederates had guns. Based on the evidence submitted, 

the Court of Common Pleas denied post-conviction relief, 

 4 

 
finding "the plea . . . neither unlawfully induced nor . . . a 

product of ineffective counsel." 

Scarbrough then appealed to the Superior Court of 

Pennsylvania, which agreed with Meyers v. Gillis that 

although defendants do not have a constitutional right to 

parole information, any such disclosure given must be 

accurate. In Meyers, the Court observed, counsel had told 

the defendant he would be eligible for parole in seven years. 

The Superior Court acknowledged that Scarbrough’s plea 

agreement included "life imprisonment with the possibility 

of parole." The court emphasized that unlike Meyers, 

however, Scarbrough had not been given any assurances, 

estimates or statistics as to the likelihood or timing of 

parole. The court continued that although parole might be 

unusual in these circumstances, it was not prohibited, and 

there was no requirement that Scarbrough be advised of 

the odds that such action might occur. Accordingly, the 

Superior Court concluded that Scarbrough’s guilty plea was 

valid and, therefore, defense counsel could not be found to 

have been ineffective. The state supreme court denied 

review. 

Scarbrough next filed pro se for a writ of habeas corpus 

in the United States District Court for the Western District 

of Pennsylvania.1 Without holding an evidentiary hearing, 

the magistrate judge issued a report and recommendation, 

concluding that trial counsel, the district attorney and the 

state court had each "assured the petitioner that he would 

be eligible for parole at the discretion of the Pennsylvania 

Board of Probation and Parole when in fact, no such 

eligibility could reasonably exist, barring a gubernatorial 

commutation . . . . [B]ut for these assurances[Scarbrough] 

would probably not have pled guilty." Accordingly, the 

report concluded, the plea had not been entered with the 

effective assistance of counsel and the writ should issue. 

The district judge adopted the report and recommendation 

without comment. 

The District Court’s jurisdiction was based on 28 U.S.C. 

_________________________________________________________________ 

1. We appointed counsel to represent Scarbrough on appeal and extend 

the thanks of the Court to Mr. Adamo for his able presentation. 

 5 

 

S 2254. We have jurisdiction over the final order of the 

District Court pursuant to 28 U.S.C. S 1291. On appeal 

from a grant of habeas corpus, this Court exercises plenary 

review of the District Court’s legal conclusions. Orban v. 

Vaughn, 123 F.3d 727, 729 (3d Cir. 1997). When the 

District Court does not hold an evidentiary hearing and 

engage in independent fact-finding, but rather limits the 

habeas evidence to that found in the state court record, our 

review is plenary. Yohn v. Love, 76 F.3d 508, 515 (3d Cir. 

1996). Additionally, a federal court must presume that 
state court findings of fact are correct, unless they are not 

fairly supported by the record. Meyers, 142 F.3d at 667. 

The Antiterrorism and Effective Death Penalty Act 

("AEDPA"), effective April 1996, amended the standards for 

reviewing state court judgments in federal habeas corpus 

petitions. Under the AEDPA, a petitioner must establish 

that the state court proceedings: 

 (1) resulted in a decision that was contrary to, or 

 involved an unreasonable application of, clearly 

 established Federal law, as determined by the 

 Supreme Court of the United States; or 

 (2) resulted in a decision that was based on an 

 unreasonable determination of the facts in light of 

 the evidence presented in the State court 

 proceeding. 

22 U.S.C. S 2254(d); see also Bell v. Cone , ___ U.S. ___, No. 

01-400, slip op. (May 28, 2002); Williams v. Taylor, 529 

U.S. 362, 402-03 (2000) (discussing AEDPA); Werts v. 

Vaughn, 228 F.3d 178, 196 (3d Cir. 2000). 

In this case, Scarbrough claims that because his trial 

counsel gave him inaccurate information as to the 

possibility of parole, he pleaded guilty to second degree 

murder rather than going to trial, as he would have 

otherwise done. The case thus turns on whether the state 

courts’ decisions were contrary to clearly established federal 

law as to claims of ineffective assistance of counsel. 

As the Supreme Court explained in Strickland v. 

Washington, 466 U.S. 668 (1984), petitioners alleging 

ineffective assistance of counsel must establish two 

 6 

 

elements. First, they must demonstrate that counsel’s 

performance was deficient, that is, his errors were so 

serious that he did not function as that counsel guaranteed 

by the Sixth Amendment. The second element of an 

ineffective assistance claim is actual prejudice. Strickland, 

466 U.S. at 687. In plea bargain cases, a petitioner satisfies 

the prejudice requirement by demonstrating a reasonable 

probability that "but for counsel’s erroneous advice, he 

would not have pleaded guilty and gone to trial." Meyers, 

142 F.3d at 668. 

We begin by observing that the state courts did not issue 

a decision that was contrary to federal law under the 

AEDPA standard. The opinions issued by the Common 

Pleas and Superior Courts on ineffective assistance of 

counsel and the voluntariness of Scarbrough’s plea were 

consistent with Strickland. The issue, then, is whether the 

state courts’ decisions were based on an unreasonable 

determination of the facts and their application to the law. 

Scarbrough contends that our decision in Meyers is 
controlling. In that case, however, during the sentencing 

hearing and in the presence of the prosecutor and the 

judge, counsel informed defendant that he would be eligible 

for parole. Neither the district attorney nor the judge 

challenged that statement, even though defendant was 

pleading guilty to second degree murder, which, under 

Pennsylvania law, carried a mandatory life sentence. 

Meyers’ counsel was apparently relying on a study showing 

the percentage of life sentences in second degree murder 

cases that had been commuted by a previous governor and 

resulted in parole. According to Meyers, his counsel 

mentioned eligibility for parole in seven years. At the time 

of his sentencing, however, there was no indication that the 

then incumbent governor would follow such a pattern. 

We concluded that Meyers had been given grossly 

inaccurate advice and a reasonable probability existed that 

but for the misleading information he would not have 

pleaded guilty. The defendant had no prior criminal record, 

and the evidence indicated that he had viable claims of selfdefense and diminished capacity. Those factors could have 

persuaded Meyers to stand trial rather than plead guilty. 

 7 

 

We affirmed the district court’s conclusion that defense 

counsel’s advice prejudiced his client. 

In the case before us, on the other hand, the 

Pennsylvania Superior Court observed that although the 

"plea agreement included life imprisonment with the 

possibility of parole . . . . It similarly is clear that 

Scarbrough was given no assurances, estimates or 

statistics regarding the likelihood or timing of a future 

opportunity for parole." The court emphasized that "[w]hile 

parole after the entry of a guilty plea to second degree 

murder may not be a common occurrence, it is not 

prohibited . . . ." As the court explained, a person may 

obtain relief if, upon the recommendation of the Board of 

Pardons, the governor commutes the sentence and the 

Parole Board then grants parole. 

In Pennsylvania, parole thus remains a possibility even 

when a life sentence has been imposed. In Commonwealth 

v. Clark, 710 A.2d 31 (Pa. 1998), the Pennsylvania Supreme 

Court found no error in a trial judge’s charge to the jury on 

the meaning of a life sentence. After explaining that a life 

sentence generally does not include the possibility of 

parole, the judge stated, 

 "[t]hat’s the general proposition. . . . But there are two 

 things I want to mention to you in that regard. First, 

 the Parole Board [Board of Pardons] at any time can 

 recommend to the Governor to commute the life 

 sentence. . . . And if the Governor grants the 

 commutation . . . then the Parole Board may grant 

 parole. So there can be a parole under those 

 circumstances. . . . That possibility exists." 
Clark, 710 A.2d at 35. See also Commonwealth v. Trivigno, 

750 A.2d 243, 256 (Pa. 2000) (a life sentence means that a 

defendant is not eligible for parole, but the governor has the 

power to grant a commutation of sentence); Commonwealth 

v. Robinson, 721 A.2d 344, 355 (Pa. 1998) (instruction that 

life sentence precludes possibility of parole not necessary); 

Commonwealth v. King, 721 A.2d 763, 779 (Pa. 1998) 

(same); Commonwealth v. Rogers, 483 A.2d 990 (Pa. Super. 

1984) (defense counsel’s advice that parole from life 

sentence is discretionary with Parole Board does not 

 8 

 

amount to ineffectiveness). Cf. Carpenter v. Vaughn, ___ 

F.3d ___, No. 95-9001 (3d Cir. June ___, 2002) 

(acknowledging possibility of commutation of life sentence 

and parole under Pennsylvania law). 

Scarbrough relies on Castle v. Pennsylvania Board of 

Probation & Parole, 554 A.2d 625 (Pa. Cmwlth. 1989). 

There, defendant was serving a life sentence for second 

degree murder and applied to the Parole Board for 

consideration of release. The Commonwealth Court 

concluded that Castle was not eligible for a parole hearing 

based on its reading of the Pennsylvania statutes governing 

eligibility, which required a minimum sentence and 

prohibited the Board from paroling a prisoner serving a life 

sentence. Castle, 554 A.2d at 628-29. Significantly, the 

court did not mention the possibility of parole after 

commutation. Fundamentally, Castle was a procedural 

decision; it did not articulate, nor did it imply, that 

Pennsylvania law absolutely precludes parole for prisoners 

serving mandatory life sentences. Any other reading of 

Castle would be contrary to holdings of the Pennsylvania 

Supreme Court. Scarbrough’s reliance on that case is, 

therefore, misguided. 

Authoritative case law leaves no room for doubt that a life 

sentence in Pennsylvania does not mean that a prisoner 

will be confined for the remainder of his life without any 

possibility of parole. As the Superior Court explained to 

Scarbrough, although a release does not often occur, it can 

take place through the two-stage process of commutation 

and parole. Accordingly, although the odds may be slim, 

under Pennsylvania law the possibility of parole from a life 

sentence does exist. 

Here, both the trial judge and the district attorney 

mentioned commutation to Scarbrough before he entered 

his plea. Although they did not explain the process at 

length, we do not consider that brevity to have altered the 

admonitions given by the trial judge when he repeatedly 

stated that there was "a possibility" of parole, but he "could 

not guarantee" anything. At that point in the proceedings, 

Scarbrough’s primary interest was saving himself from 

exposure to the death penalty. The mechanics of 

commutation and subsequent parole admittedly make the 

 9 
 

process more complicated than routine parole proceedings. 

That, however, does not change the basic fact that 

ultimately parole was "possible" rather than foreclosed 

entirely. 

We conclude, therefore, that the state courts did not err 

in holding that under Pennsylvania law, Scarbrough did 

have a "possibility" of parole. The state trial judge 

repeatedly stressed that he could not guarantee anything to 

Scarbrough and that, as times changed, so could the 

chances for parole. These were absolutely realistic 

assessments of the situation. 

Scarbrough did have a possibility of parole when he was 

sentenced; he has it today. Although his chances might be 

remote in today’s climate, there is no certainty as to what 

may happen in the future. As experienced judges, we are 

familiar with the pendulum of penalogical philosophy, 

which swings between the alternate regimes of retribution 

and rehabilitation in moderately regular cycles. 

Scarbrough’s claim that he was misled was, therefore, 

properly denied by the state courts. 

Even if Scarbrough could prevail under the first part of 

Strickland, he has failed to establish the second 

requirement, that of actual prejudice. The state trial judge, 

after the post-conviction relief hearing, made an 

unequivocal factual finding that the defendant pleaded 

guilty to avoid the death penalty. A defendant who accepts 

a plea offer primarily to avoid the death penalty, rather 

than to secure the possibility of future release, is not 

prejudiced by improper advice from counsel as to his parole 

eligibility. Meyers, 142 F.3d at 669-70. At least one other 

Court of Appeals has come to the same conclusion. Czere 

v. Butler, 833 F.2d 59, 64 (5th Cir. 1987). 

Thus, regardless of whether Scarbrough appreciated fully 

his chances of being paroled, his overarching concern was 

saving his life. We find nothing in the record that would 

justify our setting aside that finding, particularly in view of 

the deference we accord the factual findings of a state court 

that has conducted an evidentiary hearing. Such 

acquiescence is particularly appropriate here, where the 

judge who presided over the post-conviction relief hearing 

 10 

 

had also participated in the pre-plea and guilty plea 

proceedings. 

Unlike the defendant in Meyers, Scarbrough here was 

faced with his co-defendants’ testimony that he was the 

individual who had shot the victim. The trial judge had 

conducted the guilty plea colloquy of one of the codefendants and was thus well aware of the strength of the 

prosecution’s case before he conducted Scarbrough’s guilty 

plea proceeding. Moreover, although mitigating 
circumstances may have existed in Meyers, the facts of this 

case provided no similar available defenses. 

Scarbrough has failed to demonstrate that the state 

courts’ decisions were based on an unreasonable 

determination of the facts in light of the evidence presented 

in that forum. He has not shown that his trial counsel was 

grossly deficient, nor proved that he would have gone to 

trial but for the advice of counsel. 

Accordingly, the judgment of the District Court will be 

reversed. 

 11 

 

NYGAARD, Circuit Judge, dissenting: 

In its decision today, the majority reverses the District 

Court’s grant of habeas corpus to a petitioner who received 

virtually identical--and equally incorrect--advice from 

counsel during his plea colloquy as that given by counsel in 

Meyers v. Gillis--a case in which we affirmed the habeas 

grant. Because I believe our decision in Meyers v. Gillis, 

142 F.3d 664 (3d Cir. 1998), is controlling, and because I 

am unpersuaded by the majority’s attempt to distinguish 

the two cases, I would affirm the District Court. I therefore 

respectfully dissent. 

At Scarbrough’s plea colloquy, at which time he pleaded 

guilty to second degree murder, defense counsel initially 

thanked the district attorney for the plea offer and asserted 

"in the event that Mr. Scarbrough is considered for parole 

at any time, that they will inform the necessary authorities 

of his cooperation." (T.T. 68-69). Then, after the judge 

sentenced Scarbrough to prison "for the remainder of his 

natural life," Scarbrough expressed alarm and asked his 

attorney if that meant he would never be eligible for parole. 

Defense counsel turned to the court, in the presence of the 

district attorney and Scarbrough, and said "I want to 

correct him and state that’s the terminology used in the 

statute . . . and while that’s the terminology, he is eligible 

for parole and may be at some time." (T.T. 87) (emphasis 

added). The judge responded to this incorrect statement of 

law by simply saying "that’s up to the Department of 

Probation and Parole." 

In comparison, in Meyers v. Gillis, we upheld the district 

court’s grant of habeas relief to a petitioner who pleaded 

guilty to second degree murder after being incorrectly 

informed by his attorney that he would be eligible for parole 

in seven years. Id. at 665. We wrote: 

 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 life 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. 

 12 

 

Id. at 667. Under these facts, we held that this erroneous 

advice from counsel "fell below an objective standard of 

reasonableness," and we thus affirmed the district court’s 

grant of habeas corpus. Id. at 668. I would do the same 

here. 

In its attempt to distinguish this case from Myers, the 

majority writes that, in Myers, "during the sentencing 

hearing and in the presence of the prosecutor and the 

judge, counsel informed defendant that he would be eligible 

for parole. Neither the district attorney not the judge 

challenged that statement, even though defendant was 

pleading guilty to second degree murder, which, under 

Pennsylvania law, carried a mandatory life sentence." 

Majority at 7 (emphasis in original). 

I see no distinction at all. As every defense attorney and 

trial judge knows, although the trial is stressful upon the 

defendant, there is no moment more critical, confusing, and 

hence stressful, than when a person is losing his or her 

freedom--in this case--forever. That is why we require 

nothing less than complete, precise, explanatory colloquies. 

It is a time when the court and counsel must move slowly 

and carefully, mindful that they are dealing with a simpler 

soul, unsophisticated, unlearned in the law, and under 

great tension. Nonetheless, in just such a milieu, in the 

presence of the judge and the district attorney, defense 

counsel clearly stated in response to Scarbrough’s 

concerns, that Scarbrough "is eligible for parole." (T.T. 87). 

The judge’s statement that, "that’s up to the Department of 

Probation and Parole," simply confuses the issue further. 

Even I am confused by this colloquy, and cannot imagine 

how the petitioner could know what would lie ahead for 

him. There is no question in my mind that both Meyers and 

Scarbrough were denied their constitutional right to 

effective assistance of counsel during plea negotiations, 

receiving instead clearly erroneous information regarding 

the availability of parole, and that this ineffective assistance 

induced them to plead guilty to a crime they otherwise 

likely would not have. I see no valid legal grounds upon 

which to distinguish this case from Meyers. 

In conclusion, I believe that the Magistrate’s Report, 

adopted by the District Court, was correct in concluding 

that: 

 13 

 

 The record demonstrates that at the time the plea was 

 entered, the petitioner clearly set forth his misgivings 

 about his eligibility for parole and was repeatedly 

 assured by his counsel, the District Attorney and the 

 Court that he would be eligible for parole and that this 

 information was clearly erroneous. For this reason, it 
 would appear that the petitioner’s plea was not 

 knowingly and intelligently entered with the effective 

 assistance of counsel, was entered in contravention of 

 clearly established federal law and that his conviction 

 represents an unreasonable application of federal law. 

Magistrates Report, p. 8 (citing Meyers, 142 F.3d at 667). 

I would affirm the District Court’s grant of Scarbrough’s 

petition for habeas corpus. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14