UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LENROY CHAPMAN,
Petitioner-Appellee,

v.                                                                No. 98-7419

RONALD ANGELONE,
Respondent-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
David G. Lowe, Magistrate Judge.
(CA-96-891-3)

Argued: April 6, 1999

Decided: July 20, 1999

Before NIEMEYER, WILLIAMS, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert H. Anderson, III, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Stephen Neil Stout, FLAX, BILLY & STOUT, Richmond,
Virginia, for Appellee. ON BRIEF: Mark L. Earley, Attorney Gen-
eral of Virginia, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ronald Angelone, Director of the Virginia Department of Correc-
tions (hereinafter the "Commonwealth"), appeals from an order of the
district court granting, pursuant to 28 U.S.C.A.§ 2254 (West 1994 &
Supp. 1998), a writ of habeas corpus to inmate Lenroy Chapman.1 We
conclude that the writ was erroneously issued and reverse.

I.

In late November 1982, Lenroy Chapman and David Chappell
robbed an attendant at Jarrell's Truck Stop in Hanover County, Vir-
ginia, at gunpoint. Approximately two weeks later, Chapman and
Chappell robbed the Lewistown Shell gas station in Hanover County
at gunpoint. During this same time period, Chapman and Chappell
also robbed a motel attendant in nearby Spotsylvania County, again
at gunpoint. Each time, Chapman acted as the "getaway" driver.

After the first robbery in Hanover County, the Hanover police
traced an automobile suspected to have been involved in the offense
to Chapman. In December 1982, Chapman was arrested in Spot-
sylvania County. Later, during questioning by a Hanover County
police investigator, Chapman confessed that he and Chappell had
committed the robberies of the two Hanover County gas stations. He
was subsequently charged with two counts of robbery and two counts
of use of a firearm in the commission of a felony for the Hanover
County robberies. Chapman was also charged with one count of rob-
bery and one count of use of a firearm in the commission of a felony
in Spotsylvania County for the motel robbery.
_________________________________________________________________
1 After Chapman filed his application for a writ of habeas corpus in the
United States District Court, the parties consented to the jurisdiction of
the magistrate judge with an appeal directly to this court.

                    2
On January 31, 1983, Chapman pled guilty to the charges in Hano-
ver County, representing to the Circuit Court of Hanover County that
he understood the elements of the charged offenses and was pleading
guilty because he had in fact committed the offenses. Chapman fur-
ther represented that he had discussed the case with his attorney and
had independently reached his decision to plead guilty. After the Han-
over County police investigator testified regarding Chapman's con-
fession and the charged offenses, the circuit court accepted
Chapman's plea and scheduled his sentencing to take place in April
1983. In April, however, defense counsel obtained a continuance of
the sentencing in order to investigate a medical disability referenced
in Chapman's presentence report and to place the Hanover County
sentencing behind resolution of the pending charges in Spotsylvania
County.

On May 4, 1983, Chapman pled not guilty to the charges of rob-
bery and use of a firearm in Spotsylvania County and requested a trial
by jury. The jury convicted Chapman of both charges and, on May
27, 1983, Chapman received a total sentence of 27 years.

On June 27, 1983, Chapman returned for sentencing in Hanover
County. The Commonwealth recommended to the sentencing judge
that Chapman receive an active sentence of 24 years for one robbery
charge and the two firearm violations, with the sentence for the other
robbery to be suspended. Chapman's counsel argued that the Hanover
sentences should be served concurrently with the Spotsylvania sen-
tence, but the Commonwealth opposed such an arrangement. The cir-
cuit court accepted the Commonwealth's recommendation and
sentenced Chapman to 20 years on the first robbery conviction, and
40 years on the second robbery conviction, but suspended the 40-year
sentence. In addition, Chapman received mandatory two-year sen-
tences for each of the firearm charges, resulting in a total active sen-
tence of 24 years. The circuit court, however, ruled that the Hanover
sentences were to be served consecutively to Chapman's Spotsylvania
sentence.

Upon being transferred to the Virginia Department of Corrections,
Chapman was initially classified as parole-ineligible under Va. Code
Ann. § 53.1-151.B1 (Michie 1998), which provides that "[a]ny person
convicted of three separate felony offenses of (i) murder, (ii) rape or

                    3
(iii) robbery by the presenting of firearms or other deadly weapon . . .
when such offenses were not part of a common act, transaction or
scheme shall not be eligible for parole." Although Chapman was later
advised that he was eligible for parole and parole was granted, the
department reevaluated his status prior to his release and again deter-
mined that he was parole-ineligible.

On January 3, 1996, Chapman filed a pro se application for a writ
of habeas corpus in the Supreme Court of Virginia, asserting that his
rights under the Sixth and Fourteenth Amendments of the United
States Constitution had been violated in two respects: (1) that he was
denied effective assistance of counsel in Hanover County because
counsel failed to inform him that he would be ineligible for parole if
convicted of three armed robberies; and (2) that his guilty plea in
Hanover County was not knowingly and intelligently entered because
counsel failed to inform him that he would be ineligible for parole if
convicted of three armed robberies.

The Commonwealth moved to dismiss Chapman's claim of inef-
fective assistance of counsel, asserting that Chapman had not been
prejudiced by any failure on counsel's part because Chapman was
bound by the admission of guilt to the charges made during his plea
hearing under the state procedural rule enunciated in Anderson v.
Warden, 281 S.E.2d 885 (Va. 1981). Specifically, Anderson prevents
a state habeas petitioner from challenging the truth or accuracy of his
own representations regarding the adequacy of his counsel and the
voluntariness of his guilty plea made during a plea hearing, "unless
the prisoner offers a valid reason why he should be permitted to con-
trovert his prior statements." Id. at 888. In a one-page order, the
Supreme Court of Virginia, relying exclusively on Anderson, dis-
missed Chapman's ineffective assistance of counsel claim. It is undis-
puted that, due to an oversight in the Commonwealth's motion to
dismiss, the Supreme Court of Virginia did not dismiss, either proce-
durally or on the merits, Chapman's separate claim that his plea was
not voluntarily and intelligently made because his counsel was inef-
fective.

Chapman then filed an application for a writ of habeas corpus
under 28 U.S.C.A. § 2254 in the district court, asserting, inter alia,
that his counsel's failure to inform him that he would be ineligible for

                    4
parole if convicted of three armed robberies denied him effective
assistance of counsel and rendered his guilty plea involuntary in vio-
lation of his Sixth and Fourteenth Amendment rights. After conduct-
ing an evidentiary hearing, the magistrate judge issued an order
granting relief under § 2254, concluding that the failure of Chapman's
counsel to advise Chapman of Virginia's parole-ineligibility law rose
to the level of ineffective assistance of counsel and, therefore, that
Chapman's plea was involuntary.2 This appeal followed.

II.

A.

We begin with the standard of review to be applied to Chapman's
claims. In his state and federal habeas applications, Chapman asserted
two claims. The first alleged that Chapman received ineffective assis-
tance of counsel as a result of counsel's failure to inform him about
the parole-ineligibility law in Virginia. The second alleged that Chap-
man's plea was involuntary as a result of this alleged ineffective
assistance of counsel.

It is undisputed that the Virginia Supreme Court did not adjudicate
Chapman's federal constitutional claims on the merits. Thus, the stan-
dards contained within 28 U.S.C.A. § 2254(d) are not applicable.
There is also no dispute that the Virginia Supreme Court's dismissal
of Chapman's state habeas application was based exclusively upon
Anderson v. Warden, which sets forth a state rule acknowledged to be
an adequate and independent state law ground for decision. In such
cases, federal courts are barred from reviewing the constitutional mer-
its of the claims dismissed, absent a showing of cause and prejudice.
See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Yeatts v.
Angelone, 166 F.3d 255, 260 (4th Cir.), cert. denied, 119 S.Ct. 1517
(1999).
_________________________________________________________________
2 On state habeas, Chapman asserted an additional claim that counsel
was ineffective for failing to argue that Chapman's convictions were part
of a common act, transaction or scheme within the meaning of Va. Code
Ann. § 53.1-151.B1. This claim and two additional ones were also pre-
sented in Chapman's § 2254 application, but were dismissed by the mag-
istrate judge. Chapman has not raised these additional claims on appeal.

                    5
In this case, however, the Virginia Supreme Court dismissed Chap-
man's ineffective assistance of counsel claim under the adequate and
independent state law ground enunciated in Anderson, but failed to
explicitly dismiss or otherwise directly address Chapman's second
claim that his guilty plea was invalid because his counsel was ineffec-
tive. Although noting at one point that the second claim would be
necessarily dependent upon the former, the magistrate judge con-
ducted a de novo review of the merits of Chapman's first claim of
ineffective assistance of counsel and of his second claim of entering
an involuntary plea. In addition, the magistrate judge appears to have
alternatively concluded that, because counsel was ineffective, Chap-
man had established cause and prejudice for any procedural default
on the first claim.

We need not tarry long on the Commonwealth's argument that the
magistrate judge erred in conducting a de novo review of Chapman's
claims (and in conducting an evidentiary hearing on those claims), or
that the magistrate judge erred in alternatively concluding that Chap-
man had shown cause and prejudice for his procedural default of the
first claim. We conclude that Chapman is not entitled to federal
habeas relief because, whether his claims are reviewed for "cause and
prejudice" or de novo, Chapman has failed to establish that he was
prejudiced by his counsel's representation in Hanover County; that is,
he has not shown that had he known he would become parole-
ineligible if subsequently convicted of a third armed robbery in Spot-
sylvania County, he would not have pled guilty to the first two armed
robbery charges in Hanover County.

B.

The "test for determining the validity of a guilty plea is `whether
the plea represents a voluntary and intelligent choice among the alter-
native courses of action open to the defendant.'" Hill v. Lockhart, 474
U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25,
31 (1970)). Where, as here, the applicant asserts that his plea was
involuntary as a result of ineffective assistance of counsel in the form
of erroneous advice about parole eligibility, the petitioner must show
that "counsel's advice `was [not] within the range of competence
demanded of attorneys in criminal cases,'" id. (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)), or stated otherwise, that it

                    6
"fell below an objective standard of reasonableness," Strickland v.
Washington, 466 U.S. 668, 688 (1984).

In addition, however, the applicant must establish prejudice from
counsel's performance, which requires a showing"that there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694. In the
context of challenges to guilty pleas based on ineffective assistance
of counsel, this requires a showing "that there is a reasonable proba-
bility that, but for counsel's errors, [the defendant] would not have
pleaded guilty and would have insisted on going to trial." Hill, 474
U.S. at 59.

We have held that a plea of guilty is not voluntary if the defendant
is not advised that parole ineligibility will result as a direct conse-
quence of his plea. See Bell v. North Carolina , 576 F.2d 564, 565 (4th
Cir. 1978); Cuthrell v. Director, Patuxent Inst. , 475 F.2d 1364, 1365-
66 (4th Cir. 1973). Of course, this is not the situation at hand. Chap-
man's parole-ineligible status did not result as a direct consequence
of his guilty plea to the Hanover charges. Rather, Chapman became
parole-ineligible as a direct consequence of his subsequent conviction
for armed robbery in Spotsylvania County. His contention in this
application, therefore, is that his plea of guilty in Hanover County
was involuntary, and his counsel was ineffective, because counsel
failed to advise him that he would become parole-ineligible if con-
victed of the armed robbery charge that was pending in Spotsylvania
County at the time he decided to plead guilty in Hanover County.

However, we need not determine whether or under what circum-
stances counsel must warn a defendant that a plea of guilty may, in
the future, be counted towards parole-ineligible status because Chap-
man has failed to show that, had he known that an armed robbery con-
viction in Spotsylvania County would render him parole-ineligible,
there was a reasonable probability that he would not have pled guilty
in Hanover County and would have insisted on going to trial instead.

During the evidentiary hearing before the magistrate judge, Chap-
man testified that his attorney advised him that if he pled guilty to the
charges, he would be eligible for parole after "one fourth or one sixth"
of his sentence. Chapman further testified, contrary to the representa-

                     7
tions he made in his guilty plea hearing, that he was not guilty of the
first Hanover robbery because he did not know that Chappell was
going to commit the robbery beforehand. Chapman also testified that,
while he did "willingly" commit the second robbery, he did so only
because Chappell threatened him and his family. The bottom line,
according to Chapman, is that had he known that he would be ineligi-
ble for parole, he would have pled not guilty to at least the charges
arising out of the first robbery.

Chapman's counsel for the Hanover charges also testified at the
evidentiary hearing concerning his representation of Chapman and, in
particular, his recommendation that Chapman plead guilty to the Han-
over charges. This recommendation was the result of several consid-
erations. First, counsel had no doubt that Chapman was guilty of the
Hanover charges and that he had no basis to argue otherwise. Second,
counsel testified that there was no reasonable basis upon which to
suppress Chapman's confession, which had been elicited by a well-
respected, seasoned Hanover County police investigator.3 Third,
counsel was an experienced criminal defense attorney in Hanover
County at the time of his representation. Based upon his experience,
counsel knew that Hanover County juries frequently imposed the
maximum or close to the maximum sentence for crimes-- life
imprisonment in this case. However, counsel also knew that, while
the particular circuit judge who would preside over Chapman's case
was not generally inclined to reduce a jury's sentence, he was known
to seriously consider mitigating factors upon a plea of guilty.

Accordingly, counsel determined that the best strategy was to
"minimize the damage" if possible. With regard to possible parole,
counsel testified that he was familiar with the parole ineligibility stat-
ute in Virginia, but did not recall discussing the matter of parole with
Chapman. Counsel also testified that, given the overwhelming evi-
dence of guilt on the Hanover charges, the issue of parole was not a
_________________________________________________________________
3 We note that Chapman also claimed during the evidentiary hearing
that the Hanover County investigator was "up in[his] face" during ques-
tioning, an assertion disbelieved by the magistrate judge. In any event,
Chapman admitted that he did not complain to his attorney about the
questioning process at the time and he testified that the confession was
not false.

                    8
focus of his discussions with his client. Rather, the focus was on
pleading guilty to (1) avoid the probable imposition of a life or close
to life sentence by a jury and (2) try to convince the circuit court
judge to impose a lesser sentence and one which would run concur-
rently with any sentence imposed in Spotsylvania County if Chapman
were convicted there.

The magistrate judge granted habeas relief to Chapman based upon
the conclusion that, faced with a 51-year sentence without parole by
pleading guilty, a reasonable person would have"rolled the dice" and
demanded jury trials. Although this finding may seem persuasive at
first blush, it is flawed in several respects. Most notably, the conclu-
sion impermissibly applies the benefit of hindsight to the situation
confronting Chapman and his counsel. When Chapman made the
decision to plead guilty to the Hanover charges, he was not faced with
the certainty of a 51-year sentence without parole. Rather, he was
faced with overwhelming evidence of guilt with respect to the Hano-
ver charges, in particular his own confession to the crimes, and most
probably sentences of close to life imprisonment, or life imprisonment
itself, if trials were held and sentencings left to the jury. Also, no dis-
position had yet been made of the Spotsylvania charges, the ultimate
conviction of which resulted in his parole-ineligible status, and Chap-
man was not yet faced with any definite sentence in that jurisdiction.
Based upon his counsel's experience with Hanover County juries and
the specific Hanover County judge who would accept the plea, Chap-
man made an eminently reasonable decision to plead guilty to the
charges in order to seek both a reduced sentence and one which could
run concurrently with any sentence he might receive if convicted of
the Spotsylvania charges.

We cannot emphasize enough the necessity of evaluating the situa-
tion facing Chapman and his attorney as of the time the decision was
made, and resisting the temptation to expect prescience from them
because we now have the benefit of hindsight. In Chapman's situa-
tion, he had no choice but to plead guilty. It is uncontroverted that
there was a witness who had identified his car, he had confessed to
the crimes, he had given his attorney no reason to challenge the valid-
ity of his confession, and he was facing the virtual certainty of con-
viction as well as the probable imposition of consecutive life
sentences if he went to trial. As his attorney well recognized, he stood

                     9
a better chance of having his two Hanover sentences run concurrently
with each other, and with any other sentence he might receive, if he
pled guilty and was sentenced by the judge rather than being sen-
tenced by juries after hard-fought trials.

Additionally, Chapman had not yet been called to court in Spot-
sylvania County and the ultimate disposition of those charges was
unknown. Indeed, when called to answer those charges, Chapman
pled "not guilty" and contested the charge at trial. There is no evi-
dence in the record that the factors leading to a plea of "not guilty"
in Spotsylvania County were the same influencing his decision in
Hanover County and, presumably, they were different.

When we consider all of the circumstances facing Chapman, we
conclude that the possibility of sentences being without parole after
disposition of the Spotsylvania charge could not have been a factor
of such significance that it would have kept Chapman from pleading
guilty in Hanover County and have motivated him to insist on going
to trial. Chapman's only reasonable and realistic chance to escape the
certainty of substantial consecutive sentences was to plead to the Han-
over charges and hope that his sentencing judge could be convinced
to give as low a sentence as possible and to run the Hanover sentences
concurrently with any sentences he might receive in Spotsylvania
County. Even if advised of the possibility down the road of no parole,
Chapman would have had no option but to heed his counsel's experi-
ence and familiarity with the Hanover judicial system and to recog-
nize that his guilt was unassailable. The only real choice was to try
to get as low a sentence as possible and that simply was not going to
happen if Chapman insisted on jury trials.

What ultimately happened is that the sentencings did not go as the
defendant had hoped. Chapman and his lawyer made a play for low,
concurrent sentences, but the judge just did not go along with it. Nev-
ertheless, the fact that the plan did not work out does not mean the
plea was invalid or the lawyer was ineffective. Chapman did the only
thing he could in Hanover and that was to plead guilty. We are confi-
dent that adding parole ineligibility upon possible conviction of a
third charge could not have changed the fact that Chapman had to
plead guilty; realistically he could never have gone to trial on the
Hanover charges. Consequently, we hold that Chapman cannot estab-

                     10
lish that, had he been told of the possibility of parole ineligibility
were he to be convicted on the Spotsylvania charges, there is a rea-
sonable possibility he would not have pleaded guilty and would have
insisted on going to trial in Hanover County. Because Chapman can-
not establish prejudice, we conclude that his claims of receiving inef-
fective assistance of counsel and of entering an invalid guilty plea
must fail.

III.

Accordingly, the order below issuing a writ of habeas corpus is
reversed.

REVERSED

                    11
