                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-1994

Zilich v. Superint. Reid
Precedential or Non-Precedential:

Docket 93-3459




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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT



                  No. 93-3459



                 WAYNE ZILICH,

                            Appellant

                       v.

       SUPERINTENDENT REID, CHARLES JOHNS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA



         (D. C. Civil No. 90-167 Erie)


             Argued August 11, 1994
Before: MANSMANN, COWEN and McKEE, Circuit Judges

      (Opinion filed: September 30, 1994)



              OPINION OF THE COURT



                THOMAS S. WHITE, ESQ.
                W. PENN HACKNEY, ESQ.
                JAY J. FINKELSTEIN, ESQ.    (ARGUED)
                Federal Public Defender
                113 West 9th Street
                Plaza 9
                Erie, PA 16501

                Attorneys for Appellant
                            WILLIAM R. CUNNINGHAM, ESQ.   (ARGUED)
                                District Attorney
                            Erie County
                            Erie County Court House
                            Erie, PA 16501

                            Attorney for Appellee


McKEE, Circuit Judge



     The defendant appeals from the district court's denial of

his petition for a writ of habeas corpus under 28 U.S.C. §2254 in

which he challenges the validity of a guilty plea that he entered

in state court.    Because we conclude that the unique

circumstances of this case require that the defendant be afforded

an opportunity for a hearing to resolve a factual dispute, we

will vacate the order of the district court denying the writ of

habeas corpus without a hearing and remand this case to the

district court for an evidentiary hearing.
                  I. FACTUAL AND PROCEDURAL HISTORY

     Wayne Zilich was charged with numerous offenses in state

court in June of 1983 in connection with his alleged sexual

molestation and rape of his daughter who was then approximately

five and a half years old.    On November 15, 1983, Zilich waived

his right to a jury trial and the case was assigned to an Erie

County Court of Common Pleas Judge who scheduled a bench trial

for March 6, 1984.     Before the start of trial Zilich entered into

an oral plea agreement under which he agreed to plead guilty to

one count of indecent assault and one count of corruption of a

minor in exchange for the remaining charges being withdrawn.
During the resulting guilty plea colloquy Zilich affirmed that no

promise had been made as to the probable sentence of the court,

and that no promise or threats of any kind had been offered to

encourage him to plead guilty. Following the colloquy the plea

was accepted and a date was given for sentencing.

     Before sentencing, however, Zilich filed a petition to

withdraw his guilty plea. In that petition he asserted his

innocence and alleged that he had entered his plea of guilty only

because his attorney had promised him a sentence of probation in

exchange for paying a $4,000 bribe to the trial judge.     After the

defendant petitioned to withdraw his plea, trial counsel was

granted leave to withdraw, new counsel was appointed, and several

hearings were held in the Erie County Court of Common Pleas.1

     During the various hearings, Zilich testified about

conversations he had with his trial attorney in which he had

purportedly been guaranteed probation in return for paying the

alleged $4,000 bribe to the judge. Zilich testified that he

agreed to pay his trial attorney $10,000 to represent him, and an

additional $4,000 for the bribe.   Zilich also testified he had

made tape recordings of conversations with his trial attorney in

which the bribe was discussed.

     During one of the hearings Zilich introduced the testimony

of a paralegal who had worked in the office of Zilich's trial

counsel. The paralegal testified that she had heard Zilich tell


     1 In all, six hearings were held on Zilich's petition to
withdraw his guilty plea.
his attorney that he (Zilich) wished to withdraw his guilty plea,

that the attorney told Zilich he would take care of it, and that

the attorney guaranteed Zilich probation. She noted that this

guarantee surprised her because the charges were very serious.

She further testified that Zilich had paid his trial attorney

$10,000 to represent him, but that the attorney had subsequently

requested an additional $4,000.

     Zilich also produced the testimony of his wife who testified

that she had overheard a conversation in the hallway of the

courthouse on the day of trial. According to her testimony,

Zilich's trial attorney told Zilich he would get probation if he

pled guilty. She added that during that conversation the attorney

told Zilich not to tell the judge that there was a plea bargain.

Additional portions of her testimony also corroborated prior

testimony that tape recordings had been made of conversations

between her husband and his attorney.2

     Zilich also produced the testimony of Bradley Foulk, Esq.,

an attorney who had been associated with Zilich's trial attorney.

Foulk testified that on the day the plea was entered he overheard

trial counsel tell Zilich not to worry. He further testified that

he had no knowledge of any bribe or any allegations of a bribe,

but confirmed that Zilich had claimed to have made recordings of

conversations between himself (Zilich) and his trial attorney.


     2
       The evidence about these tape recordings was conflicting.
There was also testimony which tended to establish that these
tapes, if they had ever existed, had been lost. Still other
testimony challenged the existence of any such tapes.
     During the course of the hearings, Zilich's trial attorney

took the witness stand and denied all of the defendant's

accusations.

     Before the conclusion of the last hearing, the judge who had

accepted the guilty plea granted a defense motion for recusal and

the remaining hearings were held before a second judge. On June

24, 1985, the second judge granted Zilich's petition to withdraw

his guilty plea, however, the judge did not rule upon any of the

defendant's allegations.    Instead, the judge granted the petition

solely because the defendant was asserting his innocence before

sentencing, and because the judge concluded that the prosecution

had not established substantial prejudice.3 Commonwealth v.

Zilich, No. 841 of 1983, (C.P. Erie, June 24, 1985).

     On    March 11, 1987, the Superior Court of Pennsylvania

reversed, reinstated Zilich's guilty plea, and remanded the case

to the common pleas court for sentencing. The Superior Court held

that the trial court had erred in ruling that the Commonwealth

had failed to meet its burden of establishing it would be

substantially prejudiced by a retrial.    Commonwealth v. Zilich,

No. 00668 Pittsburgh, 1986 (Pa.Super., March 11, 1987). Thus,

neither court ever ruled upon the substance of Zilich's assertion

that he had tendered his guilty plea only because he believed he

would get probation.    On remand Zilich was sentenced to three and

one-half to seven years imprisonment on the charges to which he

had plead guilty.

     3
         See Commonwealth v. Neely, 449 Pa. 3, 295 A. 2d 75 (1972).
                 A. THE FEDERAL HABEAS PETITIONS

     In May of 1990, Zilich filed a civil rights action in the

Western District of Pennsylvania and he thereafter filed a

petition for a writ of habeas corpus alleging, inter alia, that

he had entered his guilty plea only because of his attorney's

promise of probation in exchange for the alleged bribe, and that

the plea was therefore involuntary. Both matters were treated as

a habeas corpus petition. The district court denied relief

without a hearing and this appeal ultimately followed.4

     The substance of the defendant's argument on appeal is that

the district court erred in denying his petition without a

hearing.




     4
       The district court referred the original petition to a
magistrate judge who thereafter filed a Report and Recommendation
on January 7, 1991, in which it was recommended that the writ be
denied because Zilich failed to exhaust his state remedies. On
March 12, 1991, the district court adopted the Report and
Recommendation, denied the petition for habeas relief and
recommended that a certificate of probable cause be denied.
Zilich then filed an appeal to this Court which entered an Order
on August 7, 1991, remanding the matter to the district court for
further proceedings.
     On July 21, 1993, a Report and Recommendation was again
filed by the magistrate judge. In that Report the magistrate
judge concluded that, based upon his review of the transcripts
from the state proceedings, the guilty plea had been voluntarily
entered. The report recommended that the petition be dismissed
with no further evidentiary hearing. The district court adopted
the Report and Recommendation as its opinion and denied a
certificate of probable cause. Zilich filed an appeal from that
determination followed by a request and a supplemental request
for a certificate of probable cause. On February 17, 1994, we
granted Zilich's request for a certificate of probable cause.
                          II. DISCUSSION

                                A.

    In Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991), we
summarized the scope of our review of a district court decision

denying a habeas petition without a hearing:
               Our scope of review is limited as
               we sit not to retry state cases de
               novo but rather to examine the
               proceedings in the state court to
               determine if there has been a
               violation of federal constitutional
               standards. . . . Where, as here, a
               district court has denied a
               petition for habeas corpus without
               holding an evidentiary hearing, our
               review consists of a two-step
               analysis. First, we must determine
               whether the petitioner has alleged
               facts that, if proved, would
               entitle him to relief. If so, we
               must then decide whether an
               evidentiary hearing is necessary to
               establish the truth of those
               allegations.


923 F.2d at 291. (citations omitted).   Our review of the district

court's decision here is plenary, as the dismissal of the habeas

petition was based on the state court record, and not upon

independent fact finding by the district court.   Id. at n. 5;

Lesko v. Lehman, 925 F.2d 1527, 1536 (3d Cir. 1991).

     The Commonwealth argues that the defendant has been afforded

an evidentiary hearing as the magistrate judge reviewed all of

the transcripts from the numerous hearings that occurred in state

court before recommending that the defendant's petition be

denied.   However, it is undisputed that no fact finder has ever

entered any findings of fact regarding the defendant's
allegations that his guilty plea was induced by a promise of

probation in return for bribing the trial judge.
                                 B.

     The determination of whether a guilty plea is "voluntary"

for purposes of the U.S. Constitution is a question of federal

law, but the determination of the historical facts surrounding

the plea bargain is subject to the deferential     "presumption of

correctness" of 28 U.S.C. §2254(d).     Marshall v. Lonberger, 459

U.S. 422, 431, 103 S.Ct. 843, 849, 74 L. Ed.2d 646 (1983).5

     A habeas petitioner challenging the voluntary nature of his

or her guilty plea faces a heavy burden.     The plea colloquy is

designed to uncover hidden promises or representations as to the

consequences of a guilty plea.   It can hardly be gainsaid that

declarations made under oath ought not to be lightly cast aside.

Zilich testified during his plea colloquy that no promises of any

sentence and no "deals" had been made to induce him to waive his

right to trial and plead guilty.      "[T]he representations of the

defendant, his lawyer, and the prosecutor at [a plea] hearing, as
well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral

proceedings.   Solemn declarations made in open court carry a

strong presumption of verity."   Blackledge v. Allison, 431 U.S.

63, 73-74, 97 S.Ct. 1621, 1629, 52 L. Ed.2d 136 (1977).

Nonetheless, the Blackledge Court recognized that this burden is


     5
       The "presumption of correctness" will be addressed in
greater detail below at section "D".
not "invariably insurmountable." Id.,at 754, 97 S.Ct. at 1629-30.

     A petitioner challenging the voluntary nature of a facially

valid guilty plea based on unfulfilled promises or

representations by counsel must advance specific and credible

allegations detailing the nature and circumstances of such

promises or representations. Lesko, 925 F.2d at 1537.   A guilty

plea induced by promises that divest the plea of its voluntary

character is void. Machibroda v. United States, 368 U.S. 487,

493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). See Heiser v. Ryan,

951 F.2d 559, 561 (3d Cir. 1991) (guilty plea not voluntary where

defendant's counsel threatened to withdraw if defendant did not

plead guilty); United States v. Marzgliano, 588 F. 2d 395, 397-99

(3d Cir. 1978) (petitioner's guilty plea not voluntary where

defense counsel misled defendant about sentencing provisions of

the plea agreement); United States v. Valenciano, 495 F.2d 585

(3d Cir. 1974) (petitioner's guilty plea not voluntary where made

on basis on counsel's statement that two sentences would run

concurrently and court imposed consecutive sentences). This

fundamental rule is not altered where, as here, a defendant

alleges that he was expecting a certain sentence based upon his

own illegal conduct. Where surrender of a fundamental

constitutional right is concerned, our inquiry can not be focused

upon the "clean hands" of the defendant. Instead, we must focus

upon the "voluntariness" of the surrender.

     Zilich has offered specific testimony that, if true, would

negate the voluntariness of his plea and establish that he pled

guilty only because of a belief he would receive probation in
return for waiving his right to trial. For purposes of ruling

upon his habeas corpus petition, we must take Zilich's factual

assertions in the light most favorable to him.   Keller v.

Petsock, 853 F.2d 1122, 1128 (3d Cir. 1988). If his allegations

are proven, he will establish at a minimum that there were

representations made by his counsel that he would receive

probation in return for his pleading guilty and paying a bribe to

the judge.   Whatever criminal consequences such a scheme would

hold for Zilich, the allegations, if true, would entitle him to

habeas relief under 28 U.S.C. §2254. Thus, we must decide if the

district court erred in denying Zilich an evidentiary hearing.
                                C.

     Our inquiry begins with Townsend v. Sain, 372 U.S. 293, 312-

14, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), in which the Supreme

Court wrote: "Where the facts are in dispute, the federal court

in habeas corpus must hold an evidentiary hearing if the habeas

applicant did not receive a full and fair hearing in a state

court, either at the time of the trial or in a collateral

proceeding."   Townsend, 372 U.S. at 311. Here, the procedure

afforded defendant to resolve his allegations falls short of this

requirement. In United States v. Valenciano, 495 F.2d 585 (3d
Cir. 1974), we held that
          Where the voluntariness of a plea is attacked
          with an assertion that one's counsel or the
          prosecutor, or both, made an out-of-court
          arrangement or 'proposition' as to the
          outcome of a sentence which differs from that
          pronounced by the court, an evidentiary
          hearing will ordinarily be necessary on a
          2255 motion attacking the voluntariness of
          the plea.
495 F.2d at 587 (citations omitted). The holding in Valenciano

has been extended to §2254 petitioners. See Lesko, 925 F.2d at

1539.

     We are aware that Zilich was afforded numerous hearings in

state court, and a federal magistrate judge reviewed the

transcripts of those hearings before recommending against relief.

However, Zilich's claims cannot be resolved without a fact finder

determining credibility. Here the magistrate judge merely

reviewed transcripts of the various hearings which were held in

the Court of Common Pleas and made a recommendation to the

district court based upon that review. The district court then

adopted the magistrate judge's recommendation, and the findings

implicit within the recommendation, and denied relief based upon

the magistrate judge's Report and Recommendation. Under the

circumstances of this case, such a procedure does not meet the

standards of affording a "full and fair hearing."    The Supreme

Court has previously stated, "Where an unresolved factual dispute

exists, demeanor evidence is a significant factor in adjudging

credibility. . . . [Q]uestions of credibility, of course, are

basic to resolution of conflicts in testimony."     Townsend, 372

U.S. at 322. It is only by observing testimony that the

factfinder   ". . . can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener's

understanding of and belief in what is said."   Anderson v. City

of Bessemer City, North Carolina, 470 U.S. 564, 575, 105 S.Ct.

1504, 1512, 84 L.Ed.2d 518 (1985).   This is the very reason
appellate judges defer to the factual conclusions of a hearing

judge.
          Face to face with living witnesses the
          original trier of the facts holds a position
          of advantage from which appellate judges are
          excluded. In doubtful cases the exercise of
          his [or her] power of observation often
          proves the most accurate method of
          ascertaining the truth. . . . To the
          sophistication and sagacity of [the trier of
          fact] the law confides the duty of appraisal.


Marshall v. Lonberger, 459 U.S. at 434, 103 S.Ct.

at 851. (citations omitted).


          There cannot even be the semblance of a full
          and fair hearing unless the state court
          actually reached and decided the issues of
          fact tendered by the defendant.

Townsend 372 U.S. at 313-314.
                                D.

     Normally a state prisoner seeking federal habeas relief in

federal court must overcome a presumption that an adverse ruling

in state court was based upon an adverse credibility
determination by the state hearing judge. See LaVallee v. Delle

Rose 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d. 637 (1973), and

Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).   This is not such a case. Here, the state trial court

granted the requested relief based upon the defendant's assertion

of innocence. Accordingly, the presumption of correctness is

inapplicable. See Townsend, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d

770 (1963).
      Similarly, under 28 U.S.C. §2254(d), findings of fact of

state courts are entitled to a presumption of correctness subject

to specific exceptions.    See Marshall, 459 U.S. 422, 103 S.Ct.

843, 74 L.Ed.2d 646 (l983).    One of those exceptions is where the

merits of the habeas petitioner's claim were not resolved in the

state court proceeding.    In that instance, the presumption of

correctness does not apply as there is nothing to which it can

attach.   28 U.S.C. §2254(d)(1); Lesko, 925 F.2d at 1540; Sullivan

v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983).
                                 E.

      The district court, by adopting the magistrate judge's

Report and Recommendation as its opinion, found that the "record

here is so complete, that there is no need for an additional

evidentiary hearing." Magistrate's Report and Recommendation of

July 21, 1993, at 11. The magistrate judge also concluded,
          [A]dditionally, because it would appear that
          the record does not substantially support the
          petitioner's allegations that he pled guilty
          because he had been assured of a probationary
          sentence, his allegations here are meritless.


Id.   We disagree.   The district court relied upon the plea

colloquy in reaching its conclusion that Zilich's plea was

voluntary.   See Magistrate Judge's Report, at 8, 9, 11.   While

Zilich's responses to the questions posed by his attorney and the

district attorney during the colloquy appear to conclusively

negate Zilich's allegations in his habeas petition, total

reliance on the colloquy is misplaced under the circumstances

posed by this case.
          The possibility exists that an inherent part
          of the out-of-court understanding was that
          appellant would respond negatively to an open
          court inquiry as to whether promises had been
          made.


Valenciano, 495 F.2d at 587. As noted above, the defendant has

offered testimony that this was the case.

     Of course, we take no position as to the truth of the

defendant's allegations. Nor do we hold that every habeas corpus

petitioner is entitled to a hearing in federal court merely

because the petitioner has made certain allegations that, if

true, would entitle him or her to relief.   As the Supreme Court

has instructed us
          [T]here are times when allegations of facts
          outside the record can be fully investigated
          without requiring the personal presence of
          the prisoner.
            . . . But the specific and detailed factual
          assertions of the petitioner, while
          improbable, cannot at this juncture be said
          to be incredible. If the allegations are
          true, the petitioner is clearly entitled to
          relief.


Machibroda v. U.S., 368 U.S. at 495 (1962).

     Accordingly we hold that, because the merits of Zilich's

claim were not resolved in the state court, and because they

require credibility determinations that cannot be resolved by

review of the cold record, the district court must give him an

evidentiary hearing. Sullivan, 723 F.2d at 1084.6

     6
       Zilich contends that 28 U.S.C. §§2254(d)(1) and (d)(3)
require that the district court hold an evidentiary hearing when
the state court did not decide the issues of fact alleged by the
habeas petitioner. By finding that the district court erred by
not granting Zilich an evidentiary hearing, we do not hold that
those sections require an evidentiary hearing. We have
                        III. CONCLUSION

    For the reasons stated herein, we will reverse and remand to

the district court for an evidentiary hearing on Zilich's claim.




previously indicated that the relationship between Townsend and
the §2254 exceptions is "still a murky one". Smith v. Freeman,
892 F.2d 331, 339 n. 13 (3d Cir. 1989). We do not now decide
whether the §2254 exceptions codify the Townsend standards.
Zilich v. Reid, No. 93-3459




Mansmann, J., concurring.

            While I concur in the result, I do so with some

hesitation and concern.     I find it inequitable that a

petitioner's challenge to the voluntary nature of his guilty plea

may rest on allegations that the plea was induced by a scheme to

bribe a judge.   Further, I am troubled by the prejudice to the

victim and the prosecution that will inevitably result from the

delayed resolution of this case.

            However, I am constrained by the language that the

United States Supreme Court has adopted in setting forth the

standard against which the consensual character of a plea must be

measured.   Most recently, in Mabry v. Johnson, 467 U.S. 504, 104

S. Ct. 2543, 81 L.Ed.2d 437 (1984), the Court stated:
          "A plea of guilty entered by one fully aware
          of the direct consequences, including the
          actual value of any commitments made to him
          by the court, prosecutor, or his own counsel,
          must stand unless induced by threats (or
          promises to discontinue improper harassment),
          misrepresentation (including unfulfilled or
          unfulfillable promises), or perhaps by
          promises that are by their nature improper as
          having no proper relationship to the
          prosecutor's business (e.g. bribes)."


Id. at 509, 104 S. Ct. at 2547, quoting, Brady v. United States,

397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L.Ed.2d 747 (1970)

(emphasis added), quoting, Shelton v. United States, 242 F.2d
101, 115 (5th Cir. 1957) (Tuttle, J., dissenting), reheard en

banc, 246 F.2d 571, rev'd on other grounds, 356 U.S. 26, 78 S.

Ct. 563, 2 L.Ed.2d 579 (1958).

          Thus, it appears that the Supreme Court has decided it

appropriate to grant broad protection to defendants who enter

guilty pleas, even those who allege knowing and voluntary

participation in egregious and illegal conduct.   Since we are not

writing on a clean slate, I concur with the majority that Zilich

is entitled to an evidentiary hearing to test the voluntariness

of his plea.
