                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2007

Powell v. Meyers
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2211




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"Powell v. Meyers" (2007). 2007 Decisions. Paper 1753.
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                                                      NOT PRECEDENTIAL


            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 04-2211


                      KEVIN POWELL,
                         Appellant

                              v.

          ROBERT W. MEYERS; THE DISTRICT
     ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA




             On Appeal From the United States
                         District Court
           For the Eastern District of Pennsylvania
            (D.C. Civil Action No. 03-cv-03667)
             District Judge: Hon. John P. Fullam


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                      January 17, 2007

       BEFORE: McKEE, AMBRO and STAPLETON,
                   Circuit Judges

              (Opinion Filed January 24, 2007)
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Appellant Kevin Powell sought a writ of habeas corpus in the District Court

asserting that his nolo contendere plea in state court was induced by inaccurate statements

of the law and that he received ineffective assistance of counsel during the plea hearing.

The District Court declined to grant habeas relief, and this timely appeal followed. We

will affirm.

       We have grave doubts about whether Powell’s wrongful inducement challenge to

his plea was fairly presented to the state courts as a federal constitutional claim. It was

understandably not regarded as such by those courts.1 Both claims arise out of the same

event, however, and our resolution of the ineffective assistance of counsel claim resolves

the “induced plea” claim as well. Under those circumstances, we will exercise our

prerogative to resolve both claims on their merits. 23 U.S.C. § 2254(b)(2); Bronshtein v.

Horn, 404 F.3d 700, 725 & 728 (3d Cir. 2005).

       At the outset of the plea hearing, defense counsel stated in open court that Powell’s



   1
    The Pennsylvania Superior Court rejected the “induced plea” claim on the ground that
Powell had failed to “make an assertion of his innocence,” as required by 42 Pa. Con.
Stat. Ann. § 9543(a)(2)(iii).

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sentence would not run concurrently with any back-time sentences imposed by the State

Parole Board for parole violations, which is an entirely accurate statement of

Pennsylvania law. Although the trial court responded that “I will make it concurrent to

everything, and then they [i.e., the State Parole Board] will make a [determination]

whether it’s concurrent to any back time,” App. at 108, defense counsel thereafter made it

clear to Powell on the record that he should “not expect” his sentence to run concurrent to

any back-time sentences imposed by the State Parole Board. Id. While the comments of

the trial court (including several other remarks during the course of the plea colloquy), as

qualified by defense counsel’s admonition to Powell, may have given Powell the

misimpression that there was at least a chance that the State Parole Board would impose a

concurrent back-time sentence, that misimpression would not provide a basis for habeas

relief under the circumstances of this case.

                            I. Ineffective Assistance of Counsel

       The two-part test enunciated in Strickland v. Washington, 446 U.S. 668 (1984),

applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v.

Lockhart, 474 U.S. 52, 58 (1985). Thus, Powell is required to show that his attorney’s

conduct fell below an objective standard of reasonable competence under prevailing

norms, and that there is a reasonable probability that, but for the error, the outcome of his

case would have been different. As explained in Hill, “in order to satisfy the ‘prejudice’

requirement, the defendant must show that there is a reasonable probability that, but for



                                               3
counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Hill, 474 U.S. at 59.

                                       A. Performance

       There is no doubt that plea counsel’s first statement to the trial court (“if he should

be serving back time now, or later he gets back time, that [the instant sentence is] not

concurrent to back time”) was an entirely accurate statement of the applicable law. After

the court responded that it would make Powell’s sentence “concurrent to everything and

then they will make a [determination] whether it’s concurrent to any back time,” however,

plea counsel slightly retreated from her initial position by stating that “so if it works out

in his favor that’s great, but he is being told now not to expect that.” App. at 108. While

Powell contends that plea counsel’s response revealed that she was “unaware” of the

governing law, we disagree. Reading plea counsel’s two statements together, it is clear

that she did not believe, based on her actual knowledge of the law, that the State Parole

Board would impose a concurrent back-time sentence, but simply saw no reason to

completely foreclose that possibility, however remote she believed it was, by insisting

that the trial court make Powell’s sentence consecutive to any back-time sentences. The

problem here arose not from counsel’s ignorance of the law, but rather from the court’s

misimpression regarding it. Given the delicate situation with which counsel was

confronted, we believe she handled the situation reasonably well. After accurately

advising the court regarding the applicable law, she did not challenge the court when it



                                               4
suggested the possibility of concurrent sentences. Far from positively assuring or

guaranteeing this result, however, plea counsel affirmatively stated that it was her belief

(and, indeed, part of the “offer . . . that [Powell] would be accepting,” App. at 108) that

such sentences would not be concurrent and further admonished Powell not to expect a

contrary determination by the State Parole Board. We agree with the PCRA Court and the

District Court that Powell has not rebutted the strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance under Strickland.

                                         B. Prejudice

         Although the state courts disposed of Powell’s ineffectiveness claim on

performance grounds, we conclude that it falls short of satisfying Strickland’s second

element as well. “A defendant alleging ineffective assistance of counsel in the guilty plea

context must make more than a bare allegation that but for counsel’s error he would have

pleaded not guilty and gone to trial.” Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.

1995).

         Powell does not even assert in his brief on this appeal that he would have insisted

on going to trial had he known that it was legally impossible for his back-time sentence to

be served concurrently with his instant sentence. Rather, he states only that “counsel’s

deficient performance prejudiced [him] . . . [because he] was sentenced to an additional

period of incarceration that he thought he had the opportunity to avoid.” Appellant Br. at

21. This is not surprising. Overwhelming evidence of Powell’s guilt was proffered at



                                               5
the plea hearing, see App. at 113. See United States v. Nino, 878 F.2d 101, 105 (3d Cir.

1989) (finding no prejudice under Strickland where “the record . . . is replete with

evidence of petitioner’s guilt”). Moreover, Powell knew that the charges to which he

pleaded nolo contendere could result in a very substantial penalty; the record shows that

Powell was advised of, and understood, the maximum sentences for robbery and his other

offenses. See App. at 109-10. Given his knowledge (1) that his plea would expose him

to such serious punishment, (2) that trial did not offer a realistic way out, and (3) that the

chance of concurrent sentences was not to be expected, it would be highly unlikely that

elimination of the possibility of such sentences would play a determinative role in

Powell’s plea decision.

       There is also no suggestion in the record that Powell’s nolo contendere plea was in

any way conditioned on the remote possibility that his back-time sentence would run

concurrently with his instant sentence. Instead, it shows that Powell’s only hesitation in

entering his plea related to the payment of restitution and court costs. See App. at 114

([DEFENSE COUNSEL]: “My client is saying that . . . the condition of his plea is that he

get in writing today a form now in which . . . you will indicate that . . . the court costs and

any restitution which you would impose would not be payable until he is released from

custody. Is that what you were asking me? [DEFENDANT]: Yes. [THE COURT]: Okay.

That will be done. We will get a short certificate which states that.”); see Hill, 474 U.S.

at 59 (rejecting prejudice argument where petitioner “alleged no special circumstances



                                               6
that might support the conclusion that he placed particular emphasis on his parole

eligibility in deciding whether or not to plead guilty”); Parry, 64 F.3d at 118 (finding no

prejudice where, among other things, “[t]he record [did] not substantiate that Parry was

reluctant to plead guilty . . . .”). Under these circumstances, there is no absolutely no

reason to believe that, but for the alleged errors by his plea counsel, Powell would have

pleaded not guilty and insisted on going to trial.

                                      II. Induced Plea

       Any misimpression about there being some possibility of concurrent sentences

cannot be said to have “induced” Powell’s plea unless there was a causal connection

between the plea and that possibility – i.e., unless knowledge of the absence of such a

possibility would have resulted in his going to trial. See Clemmons v. United States, 721

F.2d 235, 238 (8th Cir. 1983) (although the court mistakenly advised petitioner that it had

the power to impose concurrent sentences, his involuntary plea claim failed because the

mistaken advice was not “a substantial motivating factor as far as Clemmons was

concerned”). As we have explained, Powell entered his plea knowing that his sentence

would very likely run consecutively to any back-time sentences, and he does not claim

before us that he would have acted differently had he known that possibility was non-

existent rather than remote.

                                       III. Conclusion

       The judgment of the District Court will be affirmed.



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