                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-1995

Hill v Beyer, et al
Precedential or Non-Precedential:

Docket 94-5129




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 94-5129
                            ___________

          DARRYL S. HILL

                                 Appellant

                           vs.

          HOWARD BEYER;
          DEBORAH T. PORITZ,
          ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY
                           ___________

          Appeal from the United States District Court
                 for the District of New Jersey
                   (D.C. Civ. No. 89-cv-00323)
                           ___________

                               Argued
                            May 2, 1995
     Before:   MANSMANN, SCIRICA and SAROKIN, Circuit Judges.

                     (Filed   July 25, l995)
                           ___________

Philip J. Moran, Esquire   (Argued)
Moran & Haney
1230 Parkway Avenue
Suite 311
West Trenton, NJ 08628

   COUNSEL FOR APPELLANT

Stephen G. Raymond, Esquire
Burlington County Prosecutor

Saralee Smith Michaud, Esquire (Argued)
Assistant Prosecutor Burlington County Prosecutor's Office
49 Rancocas Road
Mount Holly, NJ 08060

  COUNSEL FOR APPELLEES
                            ___________

                       OPINION OF THE COURT


                                 1
__________




    2
MANSMANN,   Circuit Judge.

            In this appeal from the denial of a petition for the

issuance of a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254, Darryl S. Hill denies that he knowingly and

voluntarily waived his constitutional right to a jury trial,

privilege against compulsory self-incrimination and right to

confront his accusers, when he entered a guilty plea to charges

of armed robbery, conspiracy to commit armed robbery and to the

felony murder of a police officer.    Unfortunately, during the

plea colloquy in the New Jersey criminal proceeding the judge did

not apprise Hill that he would be waiving these rights.    The

specific issue we must decide is whether Hill's plea nonetheless

comported with the Supreme Court's directive in Boykin v.

Alabama, 395 U.S. 238 (1969), that a guilty plea not be accepted

absent an affirmative showing that it was knowing and voluntary.

            This matter is further complicated because the district

court declined to adopt the Report and Recommendation of the

magistrate judge who, having conducted an evidentiary hearing on

the issue of whether Hill knew of the constitutional rights he

was waiving at the time he entered his plea, concluded that his

plea was not knowing and voluntary.    The district court did not

hold an evidentiary hearing but instead determined from its de
novo review of the record that despite the state court's failure

to address Hill's constitutional rights, Hill's plea complied

with the requirements of Boykin.



                                 I.


                                 3
           Although the dispositive facts involve the plea

colloquy and discussions with defense counsel, we also set forth

the underlying events of the crime as they inform our decision.

           On April 3, 1979, Hill, Ronald Evans, Craig Carter and

Michael Jones drove from Philadelphia, Pennsylvania to Hammonton,

New Jersey and committed an armed robbery at Raso's Liquor Store.

They stole approximately $4,000 in cash, a revolver, four

shotguns, a case of shotgun shells and several wristwatches. When

they fled the scene in a 1973 Ford Thunderbird, they were pursued

by Patrolman Daniel Chernavsky of the Medford Police Department.

During the chase, Michael Jones and Ronald Evans wounded

Patrolman Chernavsky.    Shortly thereafter, when their car crashed

into a wall, Hill, Evans, Carter and Jones separated. Sergeant

Frank Fullerton of the Moorestown Police Department pursued Jones

and was shot twice in the stomach and once in the right shoulder.

Sergeant Fullerton died from these bullet wounds nearly a month

later on June 1, 1979.    Hill was not present when the fatal shots

were fired, although he heard the shots.

           On April 3 or 4, 1979, Hill, Jones, Carter and Evans

were arrested and charged with multiple counts of armed robbery,

conspiracy to commit armed robbery, and murder and/or felony

murder.   Hill provided a statement regarding his participation in

the armed robbery.   At the time, Hill was 18 years old with an

eleventh grade education, and read on the level of a seventh

grader.   His only prior involvement with the criminal justice

system as an adult was in Philadelphia, where he was charged with

shoplifting, plead guilty, was fined $65 and was put on


                                 4
probation, all without the aid of counsel.       Shortly after Hill's

arrest, John L. Madden, Esq., was appointed as counsel for Hill.

Hill became frustrated that his case had not been set for trial

and wrote a letter to the Burlington County assignment judge

complaining of Madden's failure to meet and discuss the case with

him and to request that his case be moved along.

          By letter dated October 11, 1979, to Hill's mother,

Madden introduced himself as Hill's appointed counsel and

discussed Hill's options of entering a guilty plea versus trial.

In this letter to Mrs. Hill, Madden informed her that the

prosecutor's office was adamant against a plea bargain because a

police officer had been killed.       Madden opined that it was

useless for Hill to plead guilty without a recommendation on

sentence from the prosecutor and that Hill had little to lose by

standing trial given his admitted involvement in the armed

robbery and the application of the felony murder rule to Hill,

which would mandate a life sentence if Hill was convicted. Madden

also stated that he had requested that Hill's case be set for

trial.

          Madden then wrote a letter directly to Hill on October

25, 1979, informing him that the prosecutor had refused to enter

into any type of plea bargain and would not conduct Hill's trial

until the trigger man had been tried.       Madden indicated his

agreement with the prosecutor that Hill's trial should not

commence until after the trigger man was tried.       Madden further

advised Hill to remain patient because his trial would probably

not occur for an additional two months.       Expressing his


                                  5
disappointment that Hill had felt compelled to write to the

assignment judge complaining of lack of contact with counsel,

Madden discussed his role as Hill's counsel.   He indicated that

he was working on Hill's case with the same diligence and effort

he expended in all cases but did not have time to contact Hill

simply to state that he had nothing concrete to report; however,

he would visit Hill in jail well in advance of trial to discuss

the case and trial strategy.   Madden further stated that he did

not want to proceed absent Hill's full confidence and

cooperation.   Madden opined that Hill was not "in good shape"

given that the application of the felony murder rule would permit

a jury to find Hill guilty of first degree murder but that Madden

could present an argument to the jury that would preclude the

application of the felony murder rule to Hill.    Madden requested

that all future questions about the case be directed to him via

letter given that Madden was quite busy and was usually out of

the office when Hill would be able to call him.    Finally, Madden

reiterated that if Hill was dissatisfied with him, Madden would

attempt to get him another lawyer.

          Two weeks later, on November 6, 1979, Madden informed

Hill by letter that his trial probably would not occur until

January of 1980 and that the prosecutor wanted Hill to testify

against the trigger man in exchange for a recommendation as to

Hill's sentence.   Madden noted that although no definite numbers

had been agreed upon, the prosecutor hinted at a recommended

sentence of 20-25 years, which Madden believed was reasonable

given that the armed robbery charge alone authorized the


                                6
imposition of a maximum sentence of 30 years.       Madden asked for

Hill's reaction to the possible 20-25 year sentence.

            Hill immediately responded to Madden's letter,

expressing his view that the proposed sentence of 20-25 years

seemed inappropriate and inquiring as to whether Madden could

continue his efforts on the plea bargain to obtain a 10-15 year

sentence.    Hill stated his agreement that it would be better to

wait until after the trigger man was tried.     Madden received

Hill's response on November 10, 1979.

            In the ensuing weeks, Hill apparently agreed to testify

against his co-defendants, causing the others to decide to plead

guilty.     On January 28, 1980, the trial court conducted a hearing

to determine the admissibility of Hill's confession given a

question raised as to the authenticity of Hill's signature on the

Miranda form.    Hill was present for this hearing.    The court

ruled that Hill's confession was admissible.

            On January 30, 1980, Hill entered a plea of non vult to

charges of felony murder, armed robbery and conspiracy to commit

robbery.    The parties do not dispute that the plea colloquy

failed to apprise Hill of the constitutional rights delineated in

Boykin that Hill would waive by pleading guilty.      The plea

colloquy between Hill and the New Jersey trial court in pertinent

part was as follows:
          THE COURT:     Darryl Hill, how old are
                         you?

            HILL:        Nineteen, sir.

            THE COURT:   Where do you live?



                                  7
HILL:        1631 North Veston Street,
             Philadelphia,
             Pennsylvania.

THE COURT:   How far have you gone in school?

HILL:        Eleventh grade, sir.

. . . .

THE COURT:   Do you understand, sir,
             these are the crimes that
             we are talking about?

HILL:        Yes, sir.

THE COURT:   Do you understand that
             Mr. Madden tells me that
             you wish to change your
             not guilty plea to guilty
             with respect to those
             counts of those
             indictments?

HILL:        Yes, sir.

THE COURT:   Is anyone forcing you to do this?

HILL:        No, sir.

THE COURT:   Other than what the two
             attorneys have just
             stated on the record has
             anyone else promised you
             any particular deals,
             rewards or sentences for
             pleading guilty?

HILL:        No, sir.

THE COURT:   Do you realize that for
             these offenses you could
             be subject to life
             imprisonment plus one
             hundred twenty-eight
             years plus fines up to
             twenty-six thousand
             dollars?

HILL:        Yes, sir.


                         8
            THE COURT:   Are you guilty of these
                         offenses?

            HILL:        Yes, sir.

            THE COURT:   You were in court with me
                         and heard the taped
                         confessions that were
                         read into the record
                         yesterday, were you not?

            HILL:        Yes, sir.

            THE COURT:   Were they essentially
                         true and correct?

            HILL:        Yes, sir.

            . . . .

            THE COURT:   Allright, I find these
                         actions to be voluntary.
                         I will grant the defense
                         motion for retraction of
                         the not guilty pleas with
                         respect to the counts
                         enumerated only and in
                         [their] place instead
                         will enter pleas of
                         guilty.


(A 9-15).    The state recommended a concurrent sentence on all

charges, which would impact Hill's eligibility for parole.   Hill

was sentenced to concurrent sentences of life imprisonment for

felony murder and to 31-45 years for the remaining offenses.




                                     9
             Having exhausted his state remedies,1 Hill filed a

petition for the issuance of a writ of habeas corpus pursuant to

28 U.S.C. § 22542 in January of 1989.    The district court ordered

an evidentiary hearing and referred the matter to a magistrate

judge to determine whether Hill knew of the constitutional rights

he was waiving by entering a plea of guilty.     The magistrate

judge conducted the evidentiary hearing on March 22, 1993 at

which Hill testified on his own behalf and Madden testified for

the State.

             Under oath Hill described his confusion at the time of

his plea hearing:     that although many legal terms were spoken, he


1
          Hill moved for, but was denied, reconsideration of his
sentence in the Superior Court of New Jersey, Burlington County,
Criminal Division. The Superior Court of New Jersey, Appellate
Division, affirmed the sentence on February 24, 1984 and the New
Jersey Supreme Court denied certification on May 22, 1984. On
January 23, 1985, Hill filed a petition for post-conviction
relief in the Superior Court of New Jersey, Burlington County,
Criminal Division, and was denied relief after a hearing on
November 19, 1986. The Superior Court of New Jersey, Appellate
Division affirmed the denial of post-conviction relief on
October 23, 1987. The New Jersey Supreme Court denied
certification on March 10, 1988.
2
          Hill's original petition alleged that his plea was not
made knowingly and intelligently because the New Jersey trial
court failed to advise him of his constitutional rights pursuant
to Rule 11 of the Federal Rules of Criminal Procedure and his
counsel misrepresented to him the terms of the plea agreement. On
August 10, 1990, the district court denied the petition, ruled
that Hill's claim of ineffective assistance of counsel lacked
merit and noted that Rule 11 only governs proceedings in federal
court. Nonetheless, the court recognized the importance of the
constitutional rights at stake and granted Hill leave to amend
his petition to state an appropriate claim regarding his lack of
awareness of his constitutional rights at the time of his guilty
plea. On May 20, 1992, Hill filed an amended petition alleging
that his plea was not knowingly and intelligently made in
violation of his constitutional rights and that his counsel was
ineffective.

                                  10
did not understand their meaning or the procedures of the court

and how they affected him. Specifically, Hill stated:
          I mean, I've heard of Book em Dano. I've
          heard of trial. I heard of you're under
          arrest. I heard a lot of things, but when it
          comes down to what those things define, or
          are they or are they not rights that I have,
          that understanding I did not have at the
          time. . . .


(A 72-73).    Hill further testified that Madden never advised him

of his rights to a trial by jury or to any other rights,

including the privilege against self-incrimination.

             Madden then testified that it was his general practice

at his initial meeting with his client to review the indictment,

the offenses, the applicable penalties and plea bargaining.    He

could not recall whether he specifically advised Hill of the

privilege against self-incrimination, the right to a trial by

jury and the right to confront his accusers. Madden testified:
          I honestly do not know if I specifically
          articulated to Mr. Hill that he had a right
          to a jury trial.

             . . . .

             But I -- I can tell you as a . . . general
             practice, that it -- I always discuss [rights
             under the Sixth Amendment in terms of
             confrontation,] with -- with clients, yes.


(A 94-96).    Madden further testified that he apprised Hill of his

privilege against self-incrimination in conjunction with Hill's

option of testifying against the trigger man in exchange for a

plea bargain.     Madden advised Hill to think long and hard about

the plea and to confer with his family especially since there



                                  11
would be no specific recommendation as to sentence.   Madden

further testified that at the time of the plea, he reviewed with

Hill the charges to which Hill was pleading guilty, the maximum

punishment for those charges and that he could not guarantee

Hill's sentence.   Madden did not discuss with Hill his

constitutional rights; he stated that:
          I was confident then, as I am now, that he
          did understand that. If it turns out that
          . . . it was also a requirement of the law,
          retroactively, that he be given this kind of
          exposition about additional aspects of his
          constitutional rights, then, as I said before
          I failed him.


(A 108).

           The magistrate judge issued a Report and Recommendation

dated August 27, 1993, recommending that the district court find

that Hill sustained his burden of showing that his plea was not

intelligently and voluntarily made and, therefore, that his

constitutional rights were violated.   The magistrate judge relied

on the following factors in concluding that Hill's plea was not

made intelligently and voluntarily:
          1.   Hill's uncontroverted testimony that he was not
               aware of the rights he was waiving when he plead
               guilty;

           2.   Hill's limited education;

           3.   Hill's prior criminal history that does not
                indicate a familiarity with this area of the law;

           4.   Madden's testimony that he could not recall
                advising Hill of his rights, but that he generally
                discussed those rights with clients;

           5.   the trial judge's failure to apprise Hill of the
                rights he was waiving by pleading guilty; and



                                12
           6.   a plea form that did not contain an exposition of
                those rights.3


           The district court issued a Memorandum and Order dated

February 2, 1994 finding that Hill's plea was voluntary and

knowing.   The district court conducted a de novo review of the
written correspondence between Hill and Madden, which predated

the guilty plea; the January 30, 1980 plea hearing transcript;

and the transcript of the March 22, 1993 evidentiary hearing

conducted by the magistrate judge.   After reviewing all of the

correspondence between Hill and Madden, the district court

focused on the October 26 and November 10 letters, concluding

that Hill was aware of his right to a jury trial and that he

voluntarily pursued a guilty plea.   The district court also

determined that Madden's testimony further bolstered the fact

that Hill's guilty plea was voluntary and knowing.   Finally,

although the district court recognized that the state court

failed to advise Hill of his constitutional rights, the district

court found that the colloquy, when coupled with Madden's

testimony and the written correspondence, evidenced that Hill's

plea complied with Boykin.

3
          There was some confusion prior to the evidentiary
hearing as to whether Hill signed an LR-27 plea form or an LR-28
plea form, which superseded the LR-27 plea form. The LR-27 did
not contain a recitation of the constitutional rights that would
be waived upon entering a plea of guilty. Nor did the version of
the LR-28 in use in 1980. The LR-28 in use since 1984 which was
supplied to the district court, however, contains specific
references to the constitutional rights waived by entering a plea
of guilty -- the right to a trial by jury, the right against
self-incrimination and the right to confront witnesses. The
parties, however, stipulated to the magistrate judge that the
1980 LR-27 was the version of the plea form that Hill signed.

                                13
          We review the district court's de novo review of the

record on which the magistrate judge issued a Report and

Recommendation, which included the transcript of the evidentiary

hearing at which both Hill and Madden testified.   Our review of

the district court's legal conclusions is plenary; we review

factual findings under the clearly erroneous standard.   Bond v.

Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989).   Hill's appeal from a

final order of the district court is timely; thus, our

jurisdiction is premised on 28 U.S.C.A. §§ 1291 and 2253 (West

1993 and 1994).4



                              II.

          In Boykin v. Alabama, 395 U.S. 238, 243 (1969), the

Supreme Court made clear that no criminal defendant should plead

guilty to a crime unless, and until, he has had explained to him

and understands all of his constitutional rights and protections,

including the privilege against compulsory self-incrimination

guaranteed by the Fifth Amendment, the right to trial by jury,

and the right to confront one's accusers.   In Boykin the Court

4
          On March 9, 1994, Hill filed a notice of appeal from
the district court's February 2, 1994 Memorandum and Order
"reversing" the Report and Recommendation, which was not an
appealable order. The district court issued a subsequent Order
dated March 17, 1994, denying the petition for habeas corpus and
certifying that there is no probable cause for appeal. This was
a final order from which an appeal could be taken. See Fed. R.
App. P. (4)(a)(2). We deemed Hill's notice of appeal as a
request for the issuance of a certificate of probable cause
pursuant to Federal Rule of Appellate Procedure 22(b), which we
issued on November 11, 1994 as the issue presented in Hill's
petition is not plainly frivolous. See generally Barefoot v.
Estelle, 463 U.S. 880, reh'g denied, 464 U.S. 874 (1983).


                               14
instructed judges to ensure that a criminal defendant had a full

understanding of what the plea connotes and its consequences by

"canvassing the matter" on the record, thereby providing an

adequate record for any review sought by the criminal defendant

and forestalling collateral attacks that seek to probe murky

memories.   395 U.S. at 243-44.   It is exactly this situation that

presents itself here where the state complains of its "impossible

position of having to rebut countless allegations with little

else but the faded memories of busy trial attorneys who have

handled numerous cases since the original plea."    Respondent's

Brief at 18.   We recognize that the New Jersey trial court

practices5 have been revised since Hill's plea was entered in

1980.   Nonetheless, regardless of the practices in place in 1980

when Hill entered his plea, the trial court was bound to comply

with the requirements of Boykin in accepting Hill's plea.

            We have expressed concern regarding inexactitude by

trial courts in accepting guilty pleas:
          [A]lthough starting from what superficially
          would appear to be two different premises for
          requiring an efficient plea process, it is
          clear that both society and the individual

5
          See generally Rule 3:9-2 of the New Jersey Rules
Governing Criminal Practice:

            The court, in its discretion, may refuse to
            accept a plea of guilty and shall not accept
            such plea without first addressing the
            defendant personally and determining by
            inquiry of the defendant and others, in the
            court's discretion, that there is a factual
            basis for the plea and that the plea is made
            voluntarily, . . . with an understanding of
            the nature of the charge and the consequences
            of the plea.


                                  15
          defendant have arrived at an identical
          interest in the means by which their
          respective purposes are to be achieved -- an
          effective, thorough, complete and meaningful
          plea proceeding. Imprecision in the manner
          in which these proceedings are conducted
          deserves the interests of both society and
          the criminal defendant. On the one hand, a
          failure to properly apprise the criminal
          defendant of his rights leads to an
          unknowing, unintelligent and involuntary
          waiver. On the other hand, to the extent
          that improperly administered pleas generate
          and encourage appeals which are time
          consuming, burdensome and difficult to
          process, the societal interests in
          rehabilitation, speedy justice, swift
          punishment and deterrence are thwarted.


United States v. Carter, 619 F.2d 293, 296-97 (3d Cir. 1980).      It

is incumbent upon any court accepting a guilty plea to ensure

that the criminal defendant has been apprised of and understands

the constitutional rights waived upon entry of a guilty plea:
          [T]he hallmark of our criminal justice system
          is fundamental fairness. Fundamental
          fairness dictates that guilty plea
          proceedings be undertaken sensitively.


Carter, 69 F.2d at 299.   Such sensitivity requires that, in the

absence of testimony that a criminal defendant understands the

constitutional rights he waives upon pleading guilty, a state

trial court must engage in a colloquy on the record sufficient to

ensure that the defendant has been apprised of his constitutional

right to a jury trial, right to confront his accusers, and the

privilege against self-incrimination.   Anything less fails to

ensure that a criminal defendant has been adequately informed of

his constitutional rights and renders the plea vulnerable to

collateral attack.


                                16
          The failure to specifically articulate Boykin rights,

however, is not dispositive if the circumstances otherwise

establish that the plea was constitutionally acceptable.     United

States v. Stewart, 977 F.2d 81, 85 (3d Cir. 1992), cert. denied,

113 S. Ct. 1433 (1993) (plea colloquy adequate despite trial

court's failure to enumerate Boykin rights given that those

rights were reviewed in prior plea colloquy that accrued only six

weeks earlier).6

          The critical issue here is whether the circumstances

surrounding Hill's plea evidence that it was in fact knowing and

voluntary; what Hill understood from the words spoken to and

around him during court proceedings -- a question of fact.     Hill

had the burden of persuasion to establish that his plea was

neither intelligent nor voluntary.   Stewart, 977 F.2d at 85.    The

district court determined that Hill failed to carry his burden in

large part based on its review of the record of the evidentiary

hearing and of the correspondence between Madden, Hill and Hill's

6
          In addition to Stewart, the district court relied on
United States v. DeForest, 946 F.2d 523, 526 (7th Cir. 1991),
cert. denied, 502 U.S. 1118 (1992) (involving review of both pre
and post-Boykin guilty pleas for sentence enhancement purposes).
DeForest involved in relevant part the review by the Court of
Appeals for the Seventh Circuit of a pre-Boykin plea where the
trial judge failed to give the required constitutional warnings
but asked the defendant about his prior convictions, education,
mental state, the maximum penalty,and the facts of the offense.
See Deforest, 946 F.2d at 524-25; Stewart, 977 F.2d at 85. While
the plea colloquy at issue is factually similar to one of the
pre-Boykin cases discussed in DeForest, that plea was analyzed
under a pre-Boykin standard of constitutionality. Id., 946 F.2d
at 525. The court of appeals in DeForest in fact expressly
declined to decide the adequacy of the one post-Boykin plea at
issue. See id. at 527. Thus, DeForest is inapposite to the
analysis of the adequacy of Hill's post-Boykin plea.


                               17
mother from October 11, 1979 through November 10, 1979, all

predating Hill's plea by three months.



                               III.

                                A.

          The district court reviewed the record developed before

the magistrate judge to determine whether to accept the

magistrate judge's recommendation that Hill's plea was not

knowing and voluntary.   A district court may either accept the

recommendation of a magistrate judge or reject the recommendation

and reach an independent conclusion after hearing testimony and

viewing witnesses.   Louis v. Blackburn, 630 F.2d 1105, 1110 (5th

Cir. 1980).   The difficulty here is that the district court

decided not to defer to the credibility determinations implicit

in the magistrate judge's Report and Recommendation -- that

Hill's testimony that he did not understand his constitutional

rights at the time of the plea was believable.7

          A district court may not reject a finding of fact by a

magistrate judge without an evidentiary hearing, where the

finding is based on the credibility of a witness testifying

before the magistrate judge and the finding is dispositive of an

application for post-conviction relief involving the

7
          By Memorandum and Order dated February 2, 1994, the
district court took an action which it described as "revers[ing]"
the Magistrate Judge's Recommendation. A Magistrate Judge's
Report and Recommendation, however, is not something that is
reversible; it is adopted, rejected or modified by the district
court. 28 U.S.C.A. § 636(b)(1)(West 1993). See also supra at
n.4.



                                18
constitutional rights of a criminal defendant.    See Blackburn,

630 F.2d 1105; see generally Grassia v. Scully, 892 F.2d 16, 19

(2d Cir. 1989) ("Had the district court rejected the magistrate

judge's conclusions regarding the credibility of the central

witnesses without hearing live testimony from those witnesses,

troubling questions of constitutional due process would have been

raised.").   Further, the Supreme Court expressly noted concern in

this regard when construing the Federal Magistrates Act, 28

U.S.C. § 636(b)(1):
          The issue is not before us, but we assume it
          is unlikely that a district judge would
          reject a magistrate [judge]'s proposed
          findings on credibility when those findings
          are dispositive and substitute the judge's
          own appraisal; to do so without seeing and
          hearing the witness or witnesses whose
          credibility is in question could well give
          rise to serious questions which we do not
          reach.

United States v. Raddatz, 447 U.S. 667, 681 n.7, reh'g denied,

448 U.S. 916 (1980) (a district court may accept a magistrate

judge's recommendation without conducting a de novo hearing).

          Our judicial system affords deference to the finder of

fact who hears the live testimony of witnesses because of the

opportunity to judge the credibility of those witnesses.

Blackburn, 630 F.2d at 1109.    The magistrate judge believed Hill

when he said he did not understand his constitutional rights at

the time he entered his plea.   The district court, however, made

credibility determinations without hearing the testimony of the

witnesses in direct contravention of the credibility

determinations implicit in the magistrate judge's Report and



                                 19
Recommendation.    Thus, the district court erred in conducting its

de novo review without hearing the testimony and viewing the

witnesses when it was reviewing questions of fact which

necessitated resolving credibility issues.



                                 B.

            While acknowledging Hill's testimony at that

evidentiary hearing that he did not know that he was waiving his

constitutional rights, the district court concluded that the

"sworn testimony of John L. Madden, Esq. -- an individual

intimately involved with the guilty plea of Darryl Hill --further

bolsters the fact that Mr. Hill's guilty plea was voluntary and

knowing."    February 2, 1994 Memorandum and Order at 9.    In so

finding the district court ignored the credibility determinations

made by the magistrate judge respecting Hill's testimony that he

did not understand his rights.    The magistrate judge relied on

Hill's testimony that:
          I understood . . . to the extent of what Mr.
          Madden was attempting to do. I understood
          that these were things that were in court
          proceedings. But as to what my
          constitutional rights were, what this -- that
          this -- that this word trial, was something
          that was not given to me what was mine. It
          was a right that was mine, that was given to
          me by the Constitution of the United States.
          Not that Mr. Madden had the power to give me
          that right.

            I understand now, like I didn't then. That
            my right to confront and cross examine my
            accusers was something that Mr. Madden
            couldn't give me, but it was a right that the
            United States gave me.



                                 20
(Tr. 62).   And further,

            As far as me knowingly, knowingly know that I
            can walk into the courtroom and say, no I'm
            not accepting this [plea], that I want a
            trial. I want to take it to trial. I want
            to take my chances at trial. I did not have
            that knowledge at the time, that I had the
            authority to do that.

            And what trial consisted of.


(Tr. 92).   The plea colloquy in fact buttresses this testimony

given that there is no mention of Hill's constitutional right to

a jury trial.   See supra at 7-9.

            The district court nonetheless relied on Madden's

testimony regarding his general practice of meeting with his

client to discuss the elements of the crime and all possible

defenses.    Remarkably, the quoted passage in that regard ends

with Madden's statement that:
          I honestly do not know if I specifically
          articulated to Mr. Hill that he had a right
          to a jury trial. We discussed trial, and --
          and specifically when his trial would be in
          relation to a -- the co-defendant.


(Emphasis added.) February 2, 1994 Memorandum and Opinion at 8.

Despite this statement, the district court accepted Madden's

testimony as to what Madden believed Hill understood regarding

his constitutional rights based on the correspondence between

Madden and Hill.

            Madden testified:
            Q:   Now, there's several references in the
            letters to Mr. Hill that you have, to a
            trial.
            Madden: Yes.




                                 21
          Q.   Did Mr. Hill ever say that he didn't
          understand that? What a trial was, what a
          jury trial was?

          Madden: No. And in fact, we wrote a letter
          agreeing that it would make sense not to be
          tried first. He -- my very, very strong
          sense of the -- of the matter was that he
          knew full well that he was awaiting trial, a
          trial for murder.

          . . . .

          Q.   Would you have -- was it your belief
          that at the time of the plea, Mr. Hill knew
          the rights that he was waiving?

          . . . .

          THE COURT: Did you believe he understood his
          rights, and what he waiving?

          Madden: Certainly. I -- I believed it then,
          I continue to believe it today.


(Tr. 120-21).   In accepting this testimony, the district court

implicitly rejected that portion of Hill's testimony that the

magistrate judge characterized as "Hill's uncontroverted

testimony that he was not aware of the rights he was waiving when

he plead guilty."   Report and Recommendation at 15.

          The district court also reviewed all of the

correspondence between Hill and Madden but specifically relied on

Madden's October 11, 1979 letter to Hill's mother, where he

explained that he advised Hill to go to trial as it would not do

Hill any good to plead guilty without a recommendation on his

sentence; Madden's October 25, 1979 letter to Hill, stating that

the state would not enter into any plea and discussing arguments




                                22
for trial; and Hill's November 10, 1979 letter to Madden, where

Hill stated:
          I receive[d] your letter explaining the
          prosecutors agreement with you concerning the
          advantage of waiting until the trigger man[]
          has his trial.

          However, the proposed term of 20-25 years,
          seems inappropriate. . . .

          . . . .

          I think a sentence of 10-15 years would seem
          reasonable to me.

          Is it possible for you to continue your
          efforts on this plea bargain?

          As I said before, I too think it would be
          better to wait until after the "trigger["]
          man gets his trial.


(Emphasis added).   (RA 56-57).    Conspicuously absent from the

district court's discussion, however, was Madden's November 6

letter to Hill where Madden raised the potential of a plea with a

recommendation on sentence of 20-25 years in return for Hill's

testimony against the trigger man.

          The district court characterized Hill's November 10

letter as a response to Madden's "letter of October 25, 1979 - a

letter which stated that Mr. Hill's trial should be after the

trigger man's for tactical considerations."     February 2, 1994

Memorandum and Opinion at 6.      From this presumption, the district

court concluded that the November 10 letter evidenced that Hill

voluntarily pursued a guilty plea and possessed an intelligent

awareness of his rights and options.     It is patently evident,

however, that Hill's letter dated November 10, 1979 is responsive


                                   23
to Madden's November 6, 1979 letter, not his October 25 letter.

The November 6 letter is the only letter from Madden that

references the prosecution's discussion of a plea with a sentence

of 20-25 years in return for Hill's testimony against the trigger

man.   When viewed in its proper context, Hill's November 10

letter is nothing more than a response to Madden's November 6

letter requesting Hill's thoughts on the plea option of 20-25

years.   Thus, the district court's conclusion that Hill's plea

was voluntary and intelligent based on Hill's inquiry in the

November 10 letter as to whether Madden could continue his

efforts on the plea bargain was based on the erroneous finding

that it was in response to Madden's October 25 letter, which

unequivocally stated that there would be no plea and discussed

trial strategy.



                               IV.

           We conclude that the district court erred by making

credibility determinations from its de novo review of the record

without the benefit of having viewed the witnesses' demeanor.     As

well, the district court erred in basing its denial of the

petition in critical part on clearly erroneous factual

determinations.

          Accordingly, we will vacate the district court's

judgment and remand to the district court for further review. The

district court must hold an evidentiary hearing if its review

involves resolving the credibility of witnesses who testified

before the magistrate judge; however, if the erroneous factual


                                24
determinations we discuss, concerning issues that do not call a

witnesses' credibility into question, were the dispositive

factors for the district court's denial of the petition, an

evidentiary hearing may not be required.




_________________________




                               25
SAROKIN, Circuit Judge, concurring and dissenting.

          I agree with the majority's conclusion that "the district court erred by

credibility determinations from its de novo review of the record without the benefi

having viewed the witnesses' demeanor" and that many of the district court's factua

findings were clearly erroneous.   Maj. Op. at    [Typescript at 23].   However, I dis

because I disagree with the majority's resolution of the case.   Instead of vacating

remanding to the district court for further review, id., I would reverse and remand

the district court to grant Hill's habeas petition.   Based upon a review of the rec

believe that Hill has met his burden of showing that his guilty plea was not knowin

voluntarily entered.   Specifically, I conclude that the factual findings of the dis

court were clearly erroneous, and I would adopt the factual findings and credibilit

determinations of the magistrate judge, who actually held an evidentiary hearing, i

support of my conclusion that Hill's petition should be granted.

          The district court, based on its de novo review of the record, determined

Hill's guilty plea was constitutionally valid, even though the trial judge had fail

advise Hill of any of his Boykin rights and even though the magistrate judge, after

evidentiary hearing, concluded that Hill's guilty plea was constitutionally invalid

magistrate judge relied on: (1) Hill's uncontroverted testimony at the hearing that
not aware of the rights he was waiving when he pled guilty; (2) Hill's limited educ

(3) a prior criminal history which does not indicate a familiarity with this partic

area of the law; (4) Hill's former attorney's testimony that he cannot specifically

advising Hill of his rights, but that he generally discusses these rights with his

clients; (5) the state trial judge's failure to apprise Hill of the litany of right

would be waiving by pleading guilty; and (6) a plea form that did not contain an

exposition of these rights.




                                             26
            For reasons to be discussed, I conclude that the district court's factual

findings concerning the voluntariness of Hill's guilty plea were clearly erroneous.

Furthermore, I believe that the magistrate judge's factual findings and credibility

determinations, which were based on an evidentiary hearing, were essentially correc

that these findings lead to the inescapable conclusion that Hill's guilty plea is

constitutionally invalid.

            The district court relied heavily on the correspondence between Hill and

attorney.    However, the correspondence between Hill's former attorney and Hill make

mention of Hill's constitutional rights or that those rights are waived by pleading

guilty.   Although the correspondence does discuss a hypothetical jury trial, it doe

specifically mention that Hill has the right to a jury trial and that this right is

by pleading guilty.    Notably, at the time of the correspondence, Hill was reading a

seventh grade level.   Moreover, even were we to find that an attorney's mere mentio

the word "jury" in correspondence with a defendant is sufficient to apprise a defen

his constitutional right to a jury trial and that this right is waived by pleading

under Boykin a defendant must understand and appreciate the entire panoply of right

he is about to waive by pleading guilty.   Boykin, 395 U.S. at 243-44.   In the

correspondence, there is no evidence of a waiver of the privilege against self-

incrimination or of the right to confront one's accusers.   In fact, there is no evi
of knowledge or waiver of these two rights by the defendant anywhere else in the re

            Furthermore, Hill testified at the evidentiary hearing that at the time h

entered his guilty plea he did not know of the constitutional rights he was waiving

pleading guilty. Hill's testimony that he was unaware of these rights went uncontro

            Hill's former attorney testified at the hearing that his standard practic

to advise clients of their constitutional rights, but that he could not remember wh
he advised Hill of these rights.   I conclude that the district court erroneously re

the attorney's testimony that he believed Hill was aware of his constitutional righ


                                              27
notwithstanding that the attorney admitted he could not remember whether he advised

of his rights or that these rights would be waived by pleading guilty.

          Additionally, the state trial judge failed to advise Hill of any of his

constitutional rights, and, thus, the plea colloquy does not establish that Hill kn

the constitutional rights he was waiving by pleading guilty.   Therefore, the distri

court's reliance on the plea colloquy to establish that Hill knowingly and voluntar

waived his constitutional rights when pleading guilty was in error.

          The following findings of the magistrate judge lend further support to th

conclusion that Hill's guilty plea was not knowing and voluntary.   Defendant in the

instant case had no previous experience with the criminal justice system which woul

an independent awareness of the rights that were waived. Hill had never participate

jury trial, either as a defendant or as a witness.   Hill was charged with several o

as a juvenile but was never advised of his constitutional rights in connection with

charges and never served a prison sentence.   Hill's adult criminal record consisted

conviction for shoplifting for which Hill pled guilty; Hill was fined and received

year of probation.   Hill was never advised of his constitutional rights in connecti

his conviction for shoplifting.   Finally, the plea form signed by Hill did not cont

exposition of the constitutional rights he was waiving by pleading guilty.

          In sum, after a careful examination of the record, I am firmly convinced
the district court's findings concerning the voluntariness of Hill's guilty plea we

clearly erroneous. I believe that Hill has sustained his burden of showing that he

neither aware of nor understood the constitutional rights which he waived by pleadi

guilty, and, thus, his plea was not knowing and voluntary and is invalid.    As the

magistrate judge in the instant case recommended, Hill's guilty plea and conviction

be set aside, and the case remanded to the state court to afford Hill the opportuni
plead anew.   A further hearing before the district court would serve no purpose bec

all of the relevant facts have been presented and appropriate findings made therefr


                                              28
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