                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-1996

Dickerson v. Vaughn
Precedential or Non-Precedential:

Docket 95-1525




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Recommended Citation
"Dickerson v. Vaughn" (1996). 1996 Decisions. Paper 113.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/113


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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ____________

                       No. 95-1525
                       ____________

                   ANTHONY DICKERSON,
                                  Appellant
                           v.

  DONALD T. VAUGHN; THE ATTORNEY GENERAL OF THE STATE OF
  PENNSYLVANIA; THE DISTRICT ATTORNEY OF BUCKS COUNTY,
  PENNSYLVANIA,
                                 Appellees.
                    ____________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               (D.C. No. 95-cv-01135)
                    ____________

   Submitted Pursuant To Third Circuit LAR 34.1(a)
                    April 29, 1996
Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges

                ***    ***   ***    ***
                       ____________

                       No. 95-1353
                       ____________

                      LARRY MEGGETT,
                                   Appellant
                            v.

  MARTIN DRAGOVICH, SUPERINTENDENT OF MAHANOY; THE
  ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE
  DISTRICT ATTORNEY OF BUCKS COUNTY,
                                 Appellees
                    ____________

    APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE EASTERN DISTRICT OF PENNSYLVANIA
               (D.C. No. 95-cv-00819)
                    ____________


                 Argued April 30, 1996

Before:   STAPLETON, SCIRICA, and WEIS, Circuit Judges.
                  Filed July 24, l996
                          ____________

Jane Goldberg, Esquire
555 City Line Avenue, Suite 510
Bala Cynwyd, Pennsylvania 19004

Attorney for Appellant Anthony Dickerson in No. 95-1525


Alan M. Rubenstein, Esquire
 District Attorney
Stephen B. Harris, Esquire
 Chief of Appeals
Carolyn K. Oliver, Esquire
 Deputy District Attorney
District Attorney Office
Bucks County Courthouse
Fourth Floor
Doylestown, PA 18901

Attorneys for Appellees in No. 95-1525


Robert E. Nicholson, Esquire (ARGUED)
55 Washington Street, Suite 203
East Orange, New Jersey 07017

Attorney for Appellant Larry Meggett in No. 95-1353


Alan M. Rubenstein, Esquire
 District Attorney
Stephen B. Harris, Esquire (ARGUED)
 Chief of Appeals
Carolyn K. Oliver, Esquire
 Deputy District Attorney

Attorneys for Appellees in No. 95-1353

                              ____________

                       OPINION OF THE COURT
                           ____________




WEIS, Circuit Judge.
         In these habeas corpus cases, petitioners allege that
they would not have pleaded nolo contendere if they had known
that their pleas would prevent them from appealing a pre-trial
ruling. The state's intermediate appellate court found that the
pleas were induced by faulty legal advice by trial counsel and
that petitioners were entitled to new trials. The state Supreme
Court reversed, holding that the petitioners' responses during a
plea colloquy in the state trial court barred them from
challenging the voluntariness of their pleas. Because
established federal law prohibits giving such preclusive effect
to plea colloquies, we conclude that habeas corpus relief is
appropriate.
                      I. Factual Background
         Petitioners Larry Meggett and Anthony Dickerson were
charged in the Court of Common Pleas of Bucks County,
Pennsylvania, with counts of participating in a corrupt
organization, manufacture, delivery and possession of controlled
substances, conspiracy and related offenses. On the day set for
trial, the presiding judge denied the petitioners' motions
raising double jeopardy.
         While petitioners were handcuffed together in the
courtroom awaiting selection of a jury, they heard their co-
defendants plead guilty and agree to turn state's evidence. The
prosecutor then offered petitioners a concession limiting the
terms of incarceration imposed if they pleaded guilty.
Petitioners asserted that they then decided to plead nolo
contendere after assurances from their respective lawyers that
the double jeopardy issue could be preserved for appeal.
         During the plea colloquy, the trial judge told each
defendant that "as far as sentencing is concerned [entering a
nolo contendere plea] is the same as pleading guilty." The judge
then asked: "Do you understand your only appeal rights are
whether this [crime] happened in Bucks County; whether [the]
sentence is lawful and whether you're entering this plea of your
own free will?" Petitioners replied that they so understood.
         Petitioners did not take a direct appeal, but two
months after sentencing they filed petitions under the
Pennsylvania Post Conviction Relief Act. The Common Pleas Court
conducted a consolidated evidentiary hearing at which both
petitioners and their attorneys testified. The court denied
relief, finding the trial counsels' testimony to be credible and
rejecting the portions of the petitioners' testimony that were
contradictory.
         At the hearing, Meggett testified that he, Dickerson
and their respective lawyers were all present when they discussed
the possibility of entering nolo contendere pleas. Meggett asked
his counsel whether he would be giving up his right to contest
the double jeopardy matter if he pleaded nolo contendere. His
lawyer responded, "No, we would still be preserving our rights."
Meggett testified that both lawyers replied that "if we took the
nolo contendere we could still have the issues preserved."
         During his testimony, Meggett's trial counsel was asked
what he had told his client about the validity of the double
jeopardy claim. He answered, "I thought it was a good argument.
I couldn't guarantee it was a winner and that he could attempt to
argue it after he pled guilty. And that if he wished to do that,
he should get new counsel, because I certainly wouldn't be in a
position to do it. And I told him that I couldn't guarantee we
would win either, if he did plea or if we didn't plea." The
lawyer was then asked: "Did you believe at that time that he
could continue his double jeopardy argument even after entering a
nolo contendere plea?" He responded: "I believe that if counsel
is creative, he probably could get away with that," but that he
had not looked into how it could be done because it was "not my
job."
         Petitioner Dickerson testified that his lawyer said
nolo contendere was not like a guilty plea because "you still
have all your appealable issues" and that a nolo plea was not a
waiver. According to Dickerson, the attorney urged him to take
the plea bargain offered by the prosecutor, telling him: "You
could still push the double jeopardy and still be heard."
Dickerson said he would not have pleaded if he had known it meant
waiving his double jeopardy appeal.
         At the hearing, Dickerson's trial attorney was asked
whether he had told his client that he could raise the double
jeopardy issue on appeal. He conceded, "I probably said it was
possible, although I did tell him he was limited in his rights of
appeal." The lawyer also testified that about six weeks before
the hearing, he had written a letter to Dickerson in which he
said, "I believe that because pre-trial motions were denied
without a hearing and without your presence, that you may yet
have a double jeopardy issue brought before the Court."
         Petitioners appealed the denial of their post
conviction petitions to the Superior Court of Pennsylvania. That
Court, reiterating settled Pennsylvania law, stated that with
respect to the termination of appellate rights, a nolo contendere
plea had the same effect as a guilty plea. The Court
nevertheless reversed in separate opinions.
         In the Meggett case, the Superior Court stated that the
issue was whether a client's "claim of a right to be properly
advised by counsel regarding the merits of the double jeopardy
claim is warranted, as this is what influenced [the petitioners']
decision to plead." The opinion commented: "There can be no
legitimate basis for failing to apprise a defendant of the
continuing validity of his claims." The Court was critical of "a
somewhat lackadaisical attitude" on the part of Meggett's lawyer.
Finally, the opinion pointed out that "the propriety of the
sentencing colloquy will not, in and of itself, resolve the
question as to whether "[petitioner] made his plea voluntarily
and knowingly . . . While the colloquy was not defective, it
cannot be expected to anticipate and resolve issues in the mind
of the defendant of which only the attorney is aware."
         In the Dickerson opinion, the Superior Court found that
he "was prejudiced by relying to his detriment on this erroneous
advice" and that the "plea colloquy did not cure such prejudice."
After reviewing the hearing testimony and evidence, the Court
stated that "there can be no doubt as to the arguable merit of
Dickerson's claim." The opinion concluded that "but for" the
attorneys' "faulty advice" on the continued vitality of the
double jeopardy claims, petitioners "would not have entered a
plea." The Court vacated the sentences and remanded for
withdrawal of the pleas and new trials in both cases.
         The Supreme Court of Pennsylvania granted allocatur
and, without briefing or argument, reversed the Superior Court's
orders and reinstated the convictions. Rejecting the conclusion
that the pleas were defective, the state Supreme Court's succinct
orders asserted that each petitioner "clearly stated in his
guilty plea colloquy that he understood that his guilty plea
would limit his appellate rights to challenges based on the
jurisdiction of the court, the lawfulness of his sentence, and
the voluntariness of his plea. It is well established that a
defendant cannot challenge his guilty plea by asserting that he
lied while under oath." The orders contain neither references to
ineffective assistance of counsel, nor factual determinations of
what advice was given to petitioners or whether they relied on it
in entering their pleas.
         Petitioners then sought relief in the district court,
but these separate requests were denied. We consolidated both
cases for disposition.
                      II. Standard of Review
         While the petitioners' appeals were pending in this
Court, Congress enacted amendments to 28 U.S.C.   2254 changing
the standard of review for cases challenging state convictions
where constitutional violations are alleged to have occurred.
These provisions state that federal courts may not grant relief
"unless the [state court] adjudication of the claim -- (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . .
. 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." Antiterrorism and Effective Death
Penalty Act of 1996, sec 104(3),Pub. L. No. 104-132, 110 Stat.
1214, 1219 (1996).
         Under the earlier version of 28 U.S.C.   2254(d), we
presumed that a state court's factual finding was correct unless,
inter alia, "such factual determination is not fairly supported
by the record." In contrast, state court legal rulings were
accorded no deference under the former statute. Parry v.
Rosemeyer, 64 F.3d 110, 113 (3d Cir. 1995).
         We have concluded that the resolution of the issues in
this case would not differ under either version of the statute.
Accordingly, we will apply the current, more deferential test.
                 III. The State Courts' Findings
         The circumstances here are somewhat unusual because we
are confronted with factual findings of the state appellate court
that diverge from those in the trial court. For example, the
Common Pleas court wrote: "The record adduced at the pleas and
at hearing on May 21, 1993 [the Post Conviction Relief Act
proceeding], does not support a conclusion that defendants' pleas
were induced by faulty advice from their trial counsel." The
Superior Court found to the contrary based on the same record.
Although there clearly was a conflict between the versions of
what had occurred, the Superior Court found the critical facts in
favor of petitioners.
         Federal courts in habeas corpus cases are required to
give deference to the factual findings of both the state trial
and appellate courts. Parke v. Raley 506 U.S. 20, 36 (1993);
Sumner v. Mata, 449 U.S. 539, 546 (1981) (section 2254 makes no
distinction between the factual determinations of a state trial
court and those of a state appellate court). When there are
conflicting fact findings by state courts, we believe that
according proper deference requires us to accept the version
reached by the higher court. To rule otherwise would be to
insert our Court into the state appellate system and take onto
ourselves the role entrusted to the state Superior Court. We
find no justification for such an intrusion here.
         Had the state Supreme Court made factual findings in
reversing the Superior Court, we would be required to accept them
as those of the highest court in the state. As noted earlier,
however, the Pennsylvania Supreme Court made no factual findings
on the critical issues of whether petitioners relied on their
counsels' faulty advice, or whether they would not have pleaded
nolo contendere but for that incorrect statement of the law.
Instead, the Court limited its comments to the effect of the
petitioners' statements made during the plea colloquy.
         It is significant for our purposes that the state
Supreme Court did not set aside the Superior Court's factual
conclusions about the inducement for the pleas and the causation
element. Thus, it appears that the state Supreme Court's ruling
on the law is a narrow one -- having stated that they understood
the limitations of their appellate rights, petitioners could not
take a different position in the Post Conviction Relief Act
proceedings. The Court's holding thus was a legal, rather than a
factual, matter and one that does not directly or impliedly take
issue with the relevant facts found by the Superior Court.
         And so, although we must defer to the Superior Court's
factual determinations left undisturbed by the state Supreme
Court, we review the legal ruling of the state Supreme Court to
see whether it was "contrary to, or involved an unreasonable
application of, clearly established federal law." 28 U.S.C.
2254. Accordingly, we must explore the relevant federal law.
         In Blackledge v. Allison, 431 U.S. 63 (1977), a
defendant in a state case was required to complete a printed form
used by the trial court in connection with guilty pleas. One of
the questions asked whether the defendant understood he could be
imprisoned for a minimum of ten years to life. The defendant
wrote "Yes" in response. The other pertinent inquiry was whether
"the Solicitor, or your lawyer, or any policeman, law officer or
anyone else made any promises or threat to you to influence you
to plead guilty." Id. at 66. The defendant answered "No."
         After being sentenced to seventeen to twenty-one years
in prison, the defendant filed a petition in federal court
alleging that before he entered his plea, his attorney had led
him to believe that as a result of an agreement with the
Solicitor and the judge the sentence would be no more than ten
years. The defendant also asserted that he had been instructed
to answer the questions on the court's form as he had done.
         The Supreme Court held that Allison's habeas corpus
petition should not have been dismissed simply because of his
answers to the questions at the plea proceeding. The Court
commented that "the barrier of the plea or sentencing proceeding
record, although imposing, is not invariably insurmountable."
Id. at 74. Consequently, "the federal courts cannot fairly adopt
a per se ruling excluding all possibility that a defendant's
representations at the time his guilty plea was accepted were so
much the product of such factors as misunderstanding, duress, or
misrepresentation by others as to make the guilty plea a
constitutionally inadequate basis for imprisonment." Id. at 75.
         The Allison opinion cited Fontaine v. United States,
411 U.S. 213 (1973), which held that in a collateral proceeding a
prisoner may not ordinarily repudiate statements made to the
sentencing judge. However, the Court observed that no procedural
device for taking guilty pleas is so perfect as to justify a per
se rule making it "uniformly invulnerable to subsequent
challenge." Id. at 215. Mabry v. Johnson, 467 U.S. 504, 509
(1984), stated in like vein, "a guilty plea entered by one fully
aware of the direct consequences, including the actual value of
any commitments made to him by the court, prosecutor, or his own
counsel, must stand unless induced by threats (or promises to
discontinue improper harassment), misrepresentations (including
unfulfilled or unfulfillable promises), or perhaps by promises
that are by their nature improper as having no proper
relationship to the prosecutor's business (e.g., bribes)."
         In Zilich v. Reid, 36 F.3d 317 (3d Cir. 1994), a state
prisoner sought relief from his sentence of incarceration because
his attorney had promised probation if a guilty plea were
entered. In directing an evidentiary hearing, we cited cases
holding that guilty pleas are not voluntary where they are
induced by misleading statements of defense counsel. Id. at 320-
21. (citing Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir. 1991);
United States v. Marzgliano, 588 F.2d 395, 399 (3d Cir. 1978);
United States v. Valenciano, 495 F.2d 585, 587 (3d Cir. 1974)).
         This brief review provides the background against which
we review the state Supreme Court's holding in its memorandum
opinion.
         The issue before us may properly be described as a
claim of ineffective assistance of counsel, which had the effect
of producing an involuntary plea. Although the claim has two
phases, the question is actually a unitary one. The
misrepresentation of the applicable law about the appealability
of the double jeopardy issue vitiates voluntariness unless it can
be shown that the trial court addressed that point so clearly in
the colloquy that it cancelled out counsel's advice and left
petitioners with no doubt on the correct legal principle.
         As noted earlier, however, the trial court did not
mention the double jeopardy issue. As the Superior Court
observed, there was nothing to put the trial court on notice that
petitioners believed a nolo plea preserved the right to appeal on
double jeopardy. The lack of any discussion on that point by the
trial judge could reasonably have led petitioners to believe
their attorneys' advice had been valid.
         It is worth noting that the trial judge, in referring
to the nolo contendere plea, told petitioners: "Now as far as
sentencing is concerned, [a nolo contendere plea] is the same as
pleading guilty." (emphasis added). Arguably, the comments
limiting the scope of the nolo plea, together with the trial
judge's later reference to appeal rights being restricted to
whether "the sentence was lawful," were not so clear as to lead a
reasonable person to believe the double jeopardy issue did not
survive.
         To the extent that the state Supreme Court appears to
have adopted a per se rule that a defendant's facially incorrect
responses during a plea colloquy bar claims for involuntariness,
the holding is contrary to clearly established federal law as
articulated in Allison and the other opinions we have cited. It
follows that the reversal of the Superior Court's order resulted
in a denial of the petitioners' constitutional rights.
         The Superior Court's factual findings and conclusions
were consistent with federal constitutional requirements. In
Hill v. Lockhart, 474 U.S. 52, 59 (1985), in discussing the
effect of ineffective assistance of counsel on a guilty plea, the
Supreme Court stated "the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to
trial." See also United States v. Nahodil, 36 F.3d 323, 326 (3d
Cir. 1994).
         Based on the Superior Court's findings, petitioners
here have met that burden and we are persuaded that they are
entitled to relief in the federal courts.
                       IV. Scope of Relief
         That conclusion brings us to a consideration of
appropriate form of relief. In Barry v. Brower, 864 F.2d 294,
301 (3d Cir. 1988), we held that because federal courts should
not interfere with a state's conduct of its litigation, a
district court should not directly order a state to grant a
defendant an appeal. Moreover, a state should be given the
opportunity to correct its own errors and federal remedies should
be designed to enable state courts to fulfill their
constitutional obligations to the defendant. Heiser v. Ryan, 15
F.3d 299, 306 (3d Cir. 1994). In Barry, we concluded that it was
permissible for the federal court to direct the petitioner's
release unless within thirty days the state granted him the right
to appeal. 864 F.2d at 301. See also Herrera v. Collins, 506
U.S. 390, 403 (1993).
         In the case before us, one option would be for the
state to permit petitioners to withdraw their guilty pleas and go
to trial. It occurs to us, however, that there may be another
form of relief more closely tailored to the petitioner's avowed
deprivation -- the right to appellate review of the double
jeopardy issue.
         In a number of cases, Pennsylvania appellate courts
have upheld the power of the Common Pleas courts to grant the
right of appeal nunc pro tunc. In Commonwealth v. West, 482 A.2d
1339, 1343 (Pa. Super. Ct. 1984), the Pennsylvania Superior Court
observed that when counsel has been found ineffective for failure
to file an appeal, permission for nunc pro tunc appeals had been
allowed. See Bond v. Fulcomer, 864 F.2d 306, 312 (3d Cir. 1989).
In West, the Court granted leave to file a petition for allocatur
to the state Supreme Court nunc pro tunc when the defendant's
counsel had failed to do so. Similar relief was allowed in
Commonwealth v. Wright, 394 A.2d 582 (Pa. Super. Ct. 1978),
Commonwealth v. Gibbs, 563 A.2d 1244 (Pa. Super. Ct. 1989), and
Larkin v. Commonwealth, 555 A.2d 954 (Pa. Commw. Ct. 1989).
         In Commonwealth v. Terreforte, 564 A.2d 479 (Pa. Super.
Ct. 1989), the Superior Court was faced with a situation
analogous to the case presently before us. Although the
defendant pleaded guilty, he expressly reserved the right, based
on his counsel's advice, to appeal a speedy trial issue. After a
post conviction relief hearing, the trial court granted the right
to appeal the speedy trial issue nunc pro tunc. The Superior
Court refused to recognize the conditional plea and did not
address the speedy trial issue. Instead, the Superior Court
allowed the defendant to withdraw his plea because it had been
based on incorrect advice from his counsel and the trial court.
         In a brief order, the Pennsylvania Supreme Court
reversed and remanded with directions to review the speedy trial
claim. Commonwealth v. Terreforte, 587 A.2d 309 (Pa. 1991).
Thus, the Court allowed appellate review of the precise issue
that the defendant had reserved in entering his guilty plea. In
effect, the state Supreme Court enforced the provisions of the
"conditional plea," although it did not discuss that procedure as
such.
         A similar disposition of the present case would be
sufficient to remedy the constitutional violation. The double
jeopardy claim is a discrete, and perhaps dispositive, issue that
could be resolved in this fashion. See e.g., United States v.
Bentz, 21 F.3d 37 (3d Cir. 1994) (a defendant may preserve a
precise issue for appellate review and enter a conditional plea);
United States v. Zudick, 523 F.2d 848 (3d Cir. 1975) (approving
the use of conditional pleas of guilty); see also Fed. R. Crim.
P. 11(a)(2).
         Accordingly, the orders of the district courts are
reversed and the cases are remanded with directions that
petitioners be released from custody within 120 days, unless
within that time the Commonwealth of Pennsylvania allows
petitioners to withdraw their pleas and grants new trials, or in
the alternative, petitioners are granted the right to file
conditional appeals nunc pro tunc challenging the denial of their
motions of acquittal on double jeopardy grounds.
