                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2002

Scarbrough v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 01-3665




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PRECEDENTIAL

       Filed August 6, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3665

MICHAEL SCARBROUGH

v.

PHILIP JOHNSON,
       Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 01-cv-01014)
District Judge: Honorable Donald J. Lee

Argued April 30, 2002

Before: NYGAARD, ROTH, and WEIS, Circuit Judges

Filed: August 6, 2002

       Paul M. Petro, Esquire (ARGUED)
       John C. Pettit, Esquire
       Office of the District Attorney
       1 South Main Street
       Washington, Pennsylvania 15301

       Counsel for Appellant



       Salvatore C. Adamo, Esquire
        (ARGUED)
       Two Penn Center Plaza
       Suite 200
       Philadelphia, Pennsylvania
        19102-1706

       Counsel for Appellee

OPINION OF THE COURT

WEIS, Circuit Judge.

Petitioner Michael Scarbrough pleaded guilty to second
degree murder in the Court of Common Pleas of
Washington County, Pennsylvania in 1995 and was
sentenced to life imprisonment. In obtaining a writ of
habeas corpus he alleged ineffective assistance of counsel,
contending that his attorney’s advice as to future parole
eligibility was inaccurate and, consequently, his guilty plea
was invalid. We conclude that Scarbrough was correctly
informed about the possibility of parole under Pennsylvania
law during the state court proceedings. Accordingly, he was
not misled and his plea was voluntary. We will, therefore,
reverse the grant of habeas corpus by the District Court.

In October 1994, petitioner Scarbrough and two
accomplices forcibly entered a home in Washington,
Pennsylvania. Scarbrough shot and killed one person and
the trio took jewelry from another. All three were charged
with criminal homicide, conspiracy, robbery and burglary.
The district attorney sought a first degree murder
conviction and the death penalty for all defendants.

As the trial was about to begin, Scarbrough’s two co-
defendants decided to plead guilty and agreed to testify
against him. The trial judge then conducted a hearing with
Scarbrough, his counsel and the District Attorney. The
judge’s intention was to be sure that Scarbrough
"understands what the plea offers [made to him] are so
there is no mistake." Accordingly, the judge reviewed the
homicide charges and explained in detail the various
penalties. He informed Scarbrough that the penalty for first

                                2


degree murder was "either a life sentence or a death
sentence." As for second degree murder, "the Court has no
discretion, it’s an automatic life sentence."

Defense counsel added that the Commonwealth’s most
recent plea offer, made that morning, involved a"plea to
Second Degree Murder, [the] penalty would be life
imprisonment with a possibility of parole" and, if the
prosecution requested, Scarbrough would testify against
any remaining co-defendants and others. The sentences for
the robbery, burglary and conspiracy charges would run
concurrently. In other words, defense counsel concluded,
"[t]here would not be any additional time. It would be a life
sentence. . . . [N]othing . . . would interfere with his ability
to have a sentence commuted and eventually be paroled
. . . ."

The trial judge reminded Scarbrough that "there is no
guarantee for -- we do not handle paroles or anything of
that nature, neither [does] the Court, nor the District
Attorney. That falls within the Department of Probation and
Parole and the governor as to whether or not they would
parole you." The judge continued, "Now, years ago a life
sentence meant you served maybe 17, 18 years and they
would consider you maybe up for parole. Things have
changed now. Honestly I can’t tell you what would happen."

The judge reiterated that second degree murder called for
a life sentence, although "[m]aybe they would or wouldn’t
consider something less than full life." He warned, however,
that if Scarbrough were also convicted of burglary, robbery
or conspiracy, "I’m sure there would be no possibility of
parole. I can’t guarantee you anything."

After the lengthy discussion, Scarbrough decided to reject
the Commonwealth’s offer. Later that afternoon, however,
he changed his mind and accepted the plea bargain. During
the plea colloquy in open court that followed, the district
attorney said that "Second Degree Murder carries with it a
life sentence with the possibility of parole." He
recommended concurrent sentences for the other offenses
so that "in the event there is at some point in time an
opportunity for him to be considered for parole, these other
charges would not in any way interfere."

                                3


The judge stated on at least three occasions during the
colloquy that second degree murder carried a life sentence.
Toward the conclusion of the proceeding, the court again
emphasized that there was "no guarantee[ ] here on parole
or anything like that. We have no jurisdiction over that." At
each of these junctures, Scarbrough was asked whether he
understood the implications of his plea, and each time the
response was that he did.

When the Court pronounced sentence "for the remainder
of his natural life," Scarbrough turned to his attorney and
asked if he would never be eligible for parole. The judge
replied,

       "As I explained to him, that’s up to the Department of
       Probation and Parole. [The district attorney] here said
       he was going to leave something in the notes here, he’s
       not against the possibility of parole, and he would not
       thwart that in any way when that comes up, and he
       will leave a record here to so indicate."

       . . . "I can’t make any promises for the Parole Board."

Scarbrough said that that "explained it" and the Court then
entered judgment.

One year later, Scarbrough filed for state post-conviction
relief, asserting that his counsel had incorrectly advised
him about parole eligibility. Both Scarbrough and his trial
counsel testified at the hearing. The same judge who had
conducted the plea colloquy presided over the post-
conviction proceedings. At its conclusion he held,"this
court has no reservation based upon the evidence and
testimony in concluding that the primary and only
motivating factor in petitioner’s acceptance of the plea
agreement was to escape the real possibility of a first degree
murder conviction and death penalty."

The judge also noted that unlike the defendant in Meyers
v. Gillis, 142 F.3d 664 (3d Cir. 1998), Scarbrough did not
and could not have alleged that he had acted in self
defense. There were simply no mitigating circumstances in
the case at hand, where only Scarbrough and his
confederates had guns. Based on the evidence submitted,
the Court of Common Pleas denied post-conviction relief,

                                4
finding "the plea . . . neither unlawfully induced nor . . . a
product of ineffective counsel."

Scarbrough then appealed to the Superior Court of
Pennsylvania, which agreed with Meyers v. Gillis that
although defendants do not have a constitutional right to
parole information, any such disclosure given must be
accurate. In Meyers, the Court observed, counsel had told
the defendant he would be eligible for parole in seven years.

The Superior Court acknowledged that Scarbrough’s plea
agreement included "life imprisonment with the possibility
of parole." The court emphasized that unlike Meyers,
however, Scarbrough had not been given any assurances,
estimates or statistics as to the likelihood or timing of
parole. The court continued that although parole might be
unusual in these circumstances, it was not prohibited, and
there was no requirement that Scarbrough be advised of
the odds that such action might occur. Accordingly, the
Superior Court concluded that Scarbrough’s guilty plea was
valid and, therefore, defense counsel could not be found to
have been ineffective. The state supreme court denied
review.

Scarbrough next filed pro se for a writ of habeas corpus
in the United States District Court for the Western District
of Pennsylvania.1 Without holding an evidentiary hearing,
the magistrate judge issued a report and recommendation,
concluding that trial counsel, the district attorney and the
state court had each "assured the petitioner that he would
be eligible for parole at the discretion of the Pennsylvania
Board of Probation and Parole when in fact, no such
eligibility could reasonably exist, barring a gubernatorial
commutation . . . . [B]ut for these assurances[Scarbrough]
would probably not have pled guilty." Accordingly, the
report concluded, the plea had not been entered with the
effective assistance of counsel and the writ should issue.
The district judge adopted the report and recommendation
without comment.

The District Court’s jurisdiction was based on 28 U.S.C.
_________________________________________________________________

1. We appointed counsel to represent Scarbrough on appeal and extend
the thanks of the Court to Mr. Adamo for his able presentation.

                                5


S 2254. We have jurisdiction over the final order of the
District Court pursuant to 28 U.S.C. S 1291. On appeal
from a grant of habeas corpus, this Court exercises plenary
review of the District Court’s legal conclusions. Orban v.
Vaughn, 123 F.3d 727, 729 (3d Cir. 1997). When the
District Court does not hold an evidentiary hearing and
engage in independent fact-finding, but rather limits the
habeas evidence to that found in the state court record, our
review is plenary. Yohn v. Love, 76 F.3d 508, 515 (3d Cir.
1996). Additionally, a federal court must presume that
state court findings of fact are correct, unless they are not
fairly supported by the record. Meyers, 142 F.3d at 667.

The Antiterrorism and Effective Death Penalty Act
("AEDPA"), effective April 1996, amended the standards for
reviewing state court judgments in federal habeas corpus
petitions. Under the AEDPA, a petitioner must establish
that the state court proceedings:

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the
       Supreme Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of
       the evidence presented in the State court
       proceeding.

22 U.S.C. S 2254(d); see also Bell v. Cone , ___ U.S. ___, No.
01-400, slip op. (May 28, 2002); Williams v. Taylor, 529
U.S. 362, 402-03 (2000) (discussing AEDPA); Werts v.
Vaughn, 228 F.3d 178, 196 (3d Cir. 2000).

In this case, Scarbrough claims that because his trial
counsel gave him inaccurate information as to the
possibility of parole, he pleaded guilty to second degree
murder rather than going to trial, as he would have
otherwise done. The case thus turns on whether the state
courts’ decisions were contrary to clearly established federal
law as to claims of ineffective assistance of counsel.

As the Supreme Court explained in Strickland v.
Washington, 466 U.S. 668 (1984), petitioners alleging
ineffective assistance of counsel must establish two

                                6


elements. First, they must demonstrate that counsel’s
performance was deficient, that is, his errors were so
serious that he did not function as that counsel guaranteed
by the Sixth Amendment. The second element of an
ineffective assistance claim is actual prejudice. Strickland,
466 U.S. at 687. In plea bargain cases, a petitioner satisfies
the prejudice requirement by demonstrating a reasonable
probability that "but for counsel’s erroneous advice, he
would not have pleaded guilty and gone to trial." Meyers,
142 F.3d at 668.

We begin by observing that the state courts did not issue
a decision that was contrary to federal law under the
AEDPA standard. The opinions issued by the Common
Pleas and Superior Courts on ineffective assistance of
counsel and the voluntariness of Scarbrough’s plea were
consistent with Strickland. The issue, then, is whether the
state courts’ decisions were based on an unreasonable
determination of the facts and their application to the law.

Scarbrough contends that our decision in Meyers   is
controlling. In that case, however, during the sentencing
hearing and in the presence of the prosecutor and the
judge, counsel informed defendant that he would be eligible
for parole. Neither the district attorney nor the judge
challenged that statement, even though defendant was
pleading guilty to second degree murder, which, under
Pennsylvania law, carried a mandatory life sentence.
Meyers’ counsel was apparently relying on a study showing
the percentage of life sentences in second degree murder
cases that had been commuted by a previous governor and
resulted in parole. According to Meyers, his counsel
mentioned eligibility for parole in seven years. At the time
of his sentencing, however, there was no indication that the
then incumbent governor would follow such a pattern.

We concluded that Meyers had been given grossly
inaccurate advice and a reasonable probability existed that
but for the misleading information he would not have
pleaded guilty. The defendant had no prior criminal record,
and the evidence indicated that he had viable claims of self-
defense and diminished capacity. Those factors could have
persuaded Meyers to stand trial rather than plead guilty.

                                7


We affirmed the district court’s conclusion that defense
counsel’s advice prejudiced his client.

In the case before us, on the other hand, the
Pennsylvania Superior Court observed that although the
"plea agreement included life imprisonment with the
possibility of parole . . . . It similarly is clear that
Scarbrough was given no assurances, estimates or
statistics regarding the likelihood or timing of a future
opportunity for parole." The court emphasized that "[w]hile
parole after the entry of a guilty plea to second degree
murder may not be a common occurrence, it is not
prohibited . . . ." As the court explained, a person may
obtain relief if, upon the recommendation of the Board of
Pardons, the governor commutes the sentence and the
Parole Board then grants parole.

In Pennsylvania, parole thus remains a possibility even
when a life sentence has been imposed. In Commonwealth
v. Clark, 710 A.2d 31 (Pa. 1998), the Pennsylvania Supreme
Court found no error in a trial judge’s charge to the jury on
the meaning of a life sentence. After explaining that a life
sentence generally does not include the possibility of
parole, the judge stated,

       "[t]hat’s the general proposition. . . . But there are two
       things I want to mention to you in that regard. First,
       the Parole Board [Board of Pardons] at any time can
       recommend to the Governor to commute the life
       sentence. . . . And if the Governor grants the
       commutation . . . then the Parole Board may grant
       parole. So there can be a parole under those
       circumstances. . . . That possibility exists."
Clark, 710 A.2d at 35. See also Commonwealth v. Trivigno,
750 A.2d 243, 256 (Pa. 2000) (a life sentence means that a
defendant is not eligible for parole, but the governor has the
power to grant a commutation of sentence); Commonwealth
v. Robinson, 721 A.2d 344, 355 (Pa. 1998) (instruction that
life sentence precludes possibility of parole not necessary);
Commonwealth v. King, 721 A.2d 763, 779 (Pa. 1998)
(same); Commonwealth v. Rogers, 483 A.2d 990 (Pa. Super.
1984) (defense counsel’s advice that parole from life
sentence is discretionary with Parole Board does not

                                8


amount to ineffectiveness). Cf. Carpenter v. Vaughn, ___
F.3d ___, No. 95-9001 (3d Cir. June ___, 2002)
(acknowledging possibility of commutation of life sentence
and parole under Pennsylvania law).

Scarbrough relies on Castle v. Pennsylvania Board of
Probation & Parole, 554 A.2d 625 (Pa. Cmwlth. 1989).
There, defendant was serving a life sentence for second
degree murder and applied to the Parole Board for
consideration of release. The Commonwealth Court
concluded that Castle was not eligible for a parole hearing
based on its reading of the Pennsylvania statutes governing
eligibility, which required a minimum sentence and
prohibited the Board from paroling a prisoner serving a life
sentence. Castle, 554 A.2d at 628-29. Significantly, the
court did not mention the possibility of parole after
commutation. Fundamentally, Castle was a procedural
decision; it did not articulate, nor did it imply, that
Pennsylvania law absolutely precludes parole for prisoners
serving mandatory life sentences. Any other reading of
Castle would be contrary to holdings of the Pennsylvania
Supreme Court. Scarbrough’s reliance on that case is,
therefore, misguided.

Authoritative case law leaves no room for doubt that a life
sentence in Pennsylvania does not mean that a prisoner
will be confined for the remainder of his life without any
possibility of parole. As the Superior Court explained to
Scarbrough, although a release does not often occur, it can
take place through the two-stage process of commutation
and parole. Accordingly, although the odds may be slim,
under Pennsylvania law the possibility of parole from a life
sentence does exist.

Here, both the trial judge and the district attorney
mentioned commutation to Scarbrough before he entered
his plea. Although they did not explain the process at
length, we do not consider that brevity to have altered the
admonitions given by the trial judge when he repeatedly
stated that there was "a possibility" of parole, but he "could
not guarantee" anything. At that point in the proceedings,
Scarbrough’s primary interest was saving himself from
exposure to the death penalty. The mechanics of
commutation and subsequent parole admittedly make the

                                9
process more complicated than routine parole proceedings.
That, however, does not change the basic fact that
ultimately parole was "possible" rather than foreclosed
entirely.

We conclude, therefore, that the state courts did not err
in holding that under Pennsylvania law, Scarbrough did
have a "possibility" of parole. The state trial judge
repeatedly stressed that he could not guarantee anything to
Scarbrough and that, as times changed, so could the
chances for parole. These were absolutely realistic
assessments of the situation.

Scarbrough did have a possibility of parole when he was
sentenced; he has it today. Although his chances might be
remote in today’s climate, there is no certainty as to what
may happen in the future. As experienced judges, we are
familiar with the pendulum of penalogical philosophy,
which swings between the alternate regimes of retribution
and rehabilitation in moderately regular cycles.
Scarbrough’s claim that he was misled was, therefore,
properly denied by the state courts.

Even if Scarbrough could prevail under the first part of
Strickland, he has failed to establish the second
requirement, that of actual prejudice. The state trial judge,
after the post-conviction relief hearing, made an
unequivocal factual finding that the defendant pleaded
guilty to avoid the death penalty. A defendant who accepts
a plea offer primarily to avoid the death penalty, rather
than to secure the possibility of future release, is not
prejudiced by improper advice from counsel as to his parole
eligibility. Meyers, 142 F.3d at 669-70. At least one other
Court of Appeals has come to the same conclusion. Czere
v. Butler, 833 F.2d 59, 64 (5th Cir. 1987).

Thus, regardless of whether Scarbrough appreciated fully
his chances of being paroled, his overarching concern was
saving his life. We find nothing in the record that would
justify our setting aside that finding, particularly in view of
the deference we accord the factual findings of a state court
that has conducted an evidentiary hearing. Such
acquiescence is particularly appropriate here, where the
judge who presided over the post-conviction relief hearing

                                10


had also participated in the pre-plea and guilty plea
proceedings.

Unlike the defendant in Meyers, Scarbrough here was
faced with his co-defendants’ testimony that he was the
individual who had shot the victim. The trial judge had
conducted the guilty plea colloquy of one of the co-
defendants and was thus well aware of the strength of the
prosecution’s case before he conducted Scarbrough’s guilty
plea proceeding. Moreover, although mitigating
circumstances may have existed in Meyers, the facts of this
case provided no similar available defenses.

Scarbrough has failed to demonstrate that the state
courts’ decisions were based on an unreasonable
determination of the facts in light of the evidence presented
in that forum. He has not shown that his trial counsel was
grossly deficient, nor proved that he would have gone to
trial but for the advice of counsel.

Accordingly, the judgment of the District Court will be
reversed.

                                11


NYGAARD, Circuit Judge, dissenting:

In its decision today, the majority reverses the District
Court’s grant of habeas corpus to a petitioner who received
virtually identical--and equally incorrect--advice from
counsel during his plea colloquy as that given by counsel in
Meyers v. Gillis--a case in which we affirmed the habeas
grant. Because I believe our decision in Meyers v. Gillis,
142 F.3d 664 (3d Cir. 1998), is controlling, and because I
am unpersuaded by the majority’s attempt to distinguish
the two cases, I would affirm the District Court. I therefore
respectfully dissent.

At Scarbrough’s plea colloquy, at which time he pleaded
guilty to second degree murder, defense counsel initially
thanked the district attorney for the plea offer and asserted
"in the event that Mr. Scarbrough is considered for parole
at any time, that they will inform the necessary authorities
of his cooperation." (T.T. 68-69). Then, after the judge
sentenced Scarbrough to prison "for the remainder of his
natural life," Scarbrough expressed alarm and asked his
attorney if that meant he would never be eligible for parole.
Defense counsel turned to the court, in the presence of the
district attorney and Scarbrough, and said "I want to
correct him and state that’s the terminology used in the
statute . . . and while that’s the terminology, he is eligible
for parole and may be at some time." (T.T. 87) (emphasis
added). The judge responded to this incorrect statement of
law by simply saying "that’s up to the Department of
Probation and Parole."

In comparison, in Meyers v. Gillis, we upheld the district
court’s grant of habeas relief to a petitioner who pleaded
guilty to second degree murder after being incorrectly
informed by his attorney that he would be eligible for parole
in seven years. Id. at 665. We wrote:

       The record is replete with instances where Meyers was
       informed that he would become eligible for parole
       sometime in the future despite pleading guilty to a
       crime that carried a mandatory life sentence . . . Such
       statements were even made during the sentencing
       hearing in the presence of the judge and prosecutor,
       and neither made any effort to clarify Meyers’
       ineligibility for parole.

                                12


Id. at 667. Under these facts, we held that this erroneous
advice from counsel "fell below an objective standard of
reasonableness," and we thus affirmed the district court’s
grant of habeas corpus. Id. at 668. I would do the same
here.

In its attempt to distinguish this case from Myers, the
majority writes that, in Myers, "during the sentencing
hearing and in the presence of the prosecutor and the
judge, counsel informed defendant that he would be eligible
for parole. Neither the district attorney not the judge
challenged that statement, even though defendant was
pleading guilty to second degree murder, which, under
Pennsylvania law, carried a mandatory life sentence."
Majority at 7 (emphasis in original).

I see no distinction at all. As every defense attorney and
trial judge knows, although the trial is stressful upon the
defendant, there is no moment more critical, confusing, and
hence stressful, than when a person is losing his or her
freedom--in this case--forever. That is why we require
nothing less than complete, precise, explanatory colloquies.
It is a time when the court and counsel must move slowly
and carefully, mindful that they are dealing with a simpler
soul, unsophisticated, unlearned in the law, and under
great tension. Nonetheless, in just such a milieu, in the
presence of the judge and the district attorney, defense
counsel clearly stated in response to Scarbrough’s
concerns, that Scarbrough "is eligible for parole." (T.T. 87).
The judge’s statement that, "that’s up to the Department of
Probation and Parole," simply confuses the issue further.
Even I am confused by this colloquy, and cannot imagine
how the petitioner could know what would lie ahead for
him. There is no question in my mind that both Meyers and
Scarbrough were denied their constitutional right to
effective assistance of counsel during plea negotiations,
receiving instead clearly erroneous information regarding
the availability of parole, and that this ineffective assistance
induced them to plead guilty to a crime they otherwise
likely would not have. I see no valid legal grounds upon
which to distinguish this case from Meyers.

In conclusion, I believe that the Magistrate’s Report,
adopted by the District Court, was correct in concluding
that:

                                13


       The record demonstrates that at the time the plea was
       entered, the petitioner clearly set forth his misgivings
       about his eligibility for parole and was repeatedly
       assured by his counsel, the District Attorney and the
       Court that he would be eligible for parole and that this
       information was clearly erroneous. For this reason, it
       would appear that the petitioner’s plea was not
       knowingly and intelligently entered with the effective
       assistance of counsel, was entered in contravention of
       clearly established federal law and that his conviction
       represents an unreasonable application of federal law.

Magistrates Report, p. 8 (citing Meyers, 142 F.3d at 667).

I would affirm the District Court’s grant of Scarbrough’s
petition for habeas corpus.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14
