                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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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"Meyers v. Gillis" (1998). 1998 Decisions. Paper 92.
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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

                               3
       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

                               4
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).

                               5
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.

                               6
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

                                7
       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).

                               8
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.

                               9
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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