Boyd v. Waymart

Although the District cor 25, 2007 Argued Oct. rectly identified Strickland test as the SLOVITER, Before CHAGARES and decision, rule it erred in reviewing HARDIMAN, Circuit Judges. Boyd’s claim de explained novo. As 19, 2007 Reargued Nov. Judge opinion, Chief Scirica’s because SCIRICA, Before Judge, Chief adjudicated Boyd’s state courts SLOVITER, McKEE, BARRY, AMBRO, merits, subject federal habeas relief is FUENTES, SMITH, FISHER, prescribed standards Antiter CHAGARES, JORDAN and rorism Penalty and Effective Death Act of HARDIMAN, Judges. Circuit (AEDPA), 2254(d). § Ac U.S.C. cordingly, will for we remand the District OF OPINION THE COURT Court to apply proper analy AEDPA sis, consistent with the instructions PER CURIAM. Judge Chief opinion. Scirica’s See Chief The District Court conditionally granted Judge Op. at Seirica 335-37 & n. 7. corpus Christopher writ of to habeas Boyd. The appealed, Commonwealth1 A further ap- word is needed about the a three-judge panel after argument, heard propriate evidentiary use of hearings. the Court rehearing ordered en Magistrate Judge banc. We The in this ease conduct- will reverse judgment hearing, the District Court’s ed such and both the Magistrate and remand different district court Judge and the District Court relied on the judge proceedings consistent with this they, evidence adduced therein. Neither opinion. parties, appear nor the queried have reference, County, Pennsylvania; For ease of we Philadelphia use the term and the Appellants Attorney "Commonwealth” to denote War- for the General Commonwealth of den, Waymart; Attorney Pennsylvania. SCI the District Instead, I believe the permissible un- case. well-settled hearing 2254(e)(2). for ineffective assistance of counsel set test As detailed der U.S.C. Washington, forth Strickland on remand Judge opinion, Scirica’s Chief 668, 104 U.S. 80 L.Ed.2d District Court address we instruct the- (1984), decision, provides the rule instance, in the first question Magistrate and District Court de- Magistrate from the the evidence consider time, however, At termined. the same I hearing if that hearing only Judge’s District in review- believe the Court erred statutory AEDPA’s stric- consistent ing ineffective assistance of counsel tures. de claim under a novo standard. Because by Judge also given reasons Chief For Pennsylvania Superior adjudi- the Court Scirica, im- District Court we conclude the merits, claim on cated the habeas a record-the rejected cold properly —on subject imposed relief to the restrictions finding Judge’s Magistrate by the Antiterrorism and Effective Death prejudice required by not as demonstrated (AEDPA), Penalty Act of 1996 28 U.S.C. no Although we have doubts Strickland. 2254(d). Accordingly, § I would reverse fairness, judge’s about the district court and remand with instructions for the Dis- judge to to we will remand a different the apply proper trict Court to AEDPA of If appearance impartiality. ensure the standards. the again preju- the District reaches Court AEDPA provides: test, it should prong of the Strickland dice An a (subject again application to for writ of habeas cor- hearing its own hold 2254(e)(2)) person custody on accept pus § if it to the behalf of declines judgment to of finding. pursuant a State Magistrate Judge’s granted respect court shall not be with SCIRICA, concurring, in Judge, Chief any adjudicated to claim that was on the FISHER, AMBRO, FUENTES and which court proceedings merits State unless join. Judges, Circuit adjudication of claim— (1) Judge I Hardiman that in a agree with resulted decision was to, contrary default his claim. procedurally did not or involved unreason- of, readjudi- application clearly “When a state court refuses able established law, ground it as a claim on has been Federal determined cate determined, States; Supreme of previously court’s decision Court the United has not indicate that the claim been or does contrary, To the

procedurally defaulted. (2) in a resulted decision provides strong the claim evidence that on an based unreasonable determina- already given full has been consideration in light tion of facts of the evi- ripe courts and thus is the state presented the State court dence —Bell, adjudication.” federal Cone v. proceeding. -,-, 1769, 1781, 129 173 U.S. S.Ct. 2254(d). § 28 U.S.C. As (2009). Accordingly, join I L.Ed.2d 701 “place[d] explained, has AEDPA opinion. of Part III Hardiman’s power of a federal new constraint on view, however, prisoner’s a state my grant Tollett v. habeas court Henderson, 1602, 258, corpus for writ habeas application 411 U.S. 93 36 of S.Ct. (1973), adjudicated on the Mabry respect v. claims L.Ed.2d 235 and John- son, 504, 2543, Terry v. 81 merits in state court.” Williams 467 104 S.Ct. U.S. (1984), 362, 412, 1495, dispose Taylor, not of this L.Ed.2d 437 do (2000) reached; (majority opinion decision 146 L.Ed.2d 389 substantive J.). O’Connor, Accordingly, adequacy procedures a thresh- of the of matter, through determine old in order to decision are addressed lens 2254(d) 2254(d), § not as a matter. apply the constraints feder- threshold Boyd’s petition, review of we must de- al (1st Bender, Teti v. F.3d 56-57 courts termine whether decided Cir.2007) Kuhlman, (quoting Sellan v. claim “on merits.” See Chadwick (2d Cir.2001), citing F.3d (3d Janecka, 605-06 v. 312 F.3d Cir. Fifth, Fourth, Sixth, Ninth, cases from the 2002). given If the state courts decided Circuits); Tenth Eleventh accord merits, claim the “our standard re- (3d Horn, v. Thomas 114-15 may grant view is narrow:” we the writ Cir.2009); Horn, Rompilla v. adjudication unless the state-court Cir.2004), 247-48 other rev’d on set forth meets one the conditions Beard, grounds Rompilla sub nom. 2254(d)(1) (d)(2). §in Id. at 605. Con- U.S. 162 L.Ed.2d 360 versely, review de novo issues that “[w]e (2005). Our precedent for the “stand[s] the state court did not decide on the mer- that, if proposition examination the Beard, (3d 256, its.” Bond v. 539 F.3d 263 opinions of the state courts shows Cir.2008). Court The District concluded they misunderstood the nature of prop- a it without elaboration that would “review erly claim exhausted and thus failed to [Boyd’s petition] de novo as the state adjudicate merits, that claim on the accurately courts to failed construe Peti- in deferential standards of review AEDPA against tioner’s claim trial counsel.” Chadwick, apply.” do not 312 F.3d Nish, 06-0491, 403884, v. 2007 No. WL at But when the state “previously courts have (E.D.Pa. 2007).2 Jan.31, *2 rejected considered and claim federal 2254(d) merits,” § on the do standards adjudication

State-court “on the merits” Grace, 189, apply. Siehl v. 561 F.3d 195 has been defined as follows: (3d Cir.2009). “adjudicated A matter on the is merits” a finally if there is resolving “decision has claimed his trial counsel was claims, parties’ judicata grounds. with res ef- on ineffective two different The fect, that based ground, initially presented is on substance of first on direct advanced, Pennsylvania Court, the claim rather than on appeal Superior other, procedural, ground.” ... allegedly was that trial counsel [Sec- failed to 2254(d) applies regardless give tion] sufficient advice about the sen- procedures employed or tencing guidelines the decision to him allow to make an court, long reached the state as as a informed decision about accept whether to 2. The District Court applied found that de novo re- which the state courts here—is the standard, proper view was also because "the as state same Strickland’s see Common- 1, Tedford, courts never cited or described v. the relevant wealth 598 Pa. 960 A.2d thus, Pierce, precedent, (2008) (citing federal never reached Commonwealth v. (1987) (adopting the merits of Petitioner's Sixth Pa. Amendment A.2d Boyd, Strickland)), holding claim.” 2007 WL at *2. The U.S. Court’s implying Pennsylvania District erred in adjudicated Court fail- so a court has ure of a court state "the relevant Strickland on claim the merits where has precedent” necessarily applied federal a failure state-law standard to claim. Horn, adjudicate petitioner's Rompilla claim on the merits. v. Cir.2004), Pennsylvania Supreme grounds The Court has made rev’d other nom. sub Beard, Rompilla clear that the standard for ineffective assis- (2005). Pennsylvania tance of counsel under law— 162 L.Ed.2d 360 Boyd’s ineffectiveness claim.” Common- initial plea offer. the Commonwealth’s 5; Pennsylva- Suppl. Br. see also id. 6 n. 3 dispute that the wealth’s Boyd does not (“[T]he recognized this claim Superior incorrectly Court described nia PCRA court purposes merits for it on the and decided claim ... and never the ineffectiveness 2254(d).3 way it....”). On its of 28 U.S.C. correctly identifies claim, Pennsylvania Supe- this denying however, appeal, Pennsyl- On PCRA fact, found, a matter of Court as rior correctly identified Superior vania [Boyd] “fully informed Boyd’s counsel claim, accurately describing the Boyd’s original plea availability of about the “trial question presented as whether coun- offer, take his [Boyd] decided to but rejection of the offer before [initial] sel’s the discretion chances on discussing [Boyd] it with rendered his as- Boyd contests this factual sentencing.” Pennsylvania The sistance ineffective.” finding. correctly Superior Court contrasted' ground the second presented first claim claim on direct appeal ineffectiveness in alleged for trial counsel’s that “his trial counsel was ineffective in (i.e., on state collateral petition PCRA plea agreement to discuss a failing review), provid- arguing that trial counsel have which would received sentence [he] by rejecting the assistance ed ineffective mitigated range sentencing discussing it with initial offer before guidelines.” highest state court to recognize did not him. The PCRA Court therefore, Boyd’s petition, review did not different from the the nature” of his “misunderst[and] PCRA appeal. on direct It presented one he had Chadwick, claim. at 606. The F.3d asserting that again believed rejected Court the Pennsylvania Superior for plea counsel was ineffective ad- “guilty “previous- claim on the basis the PCRA of reject negotiated a vising defendant rule,4 ly disposition but that can- litigated” eight years light of offer of four to plea Pennsylvania Superior not the mean Court charged,” of the crimes the seriousness previously thought litigated, the claim was the rejecting for offer before rather than noted, court, unlike the since as Boyd. Given mistaken for- consulting Court, correctly distinguished be- PCRA mulation, surprising that the is not direct-appeal tween the PCRA and claims. concluded “defendant raised PCRA Court Instead, the looked Superior Court back he appeal on is the exact issue direct direct-appeal opinion and saw that it to its and, petition” raising now his PCRA rejected already predicate had the factual “previ- the claim as accordingly, dismissed Boyd’s claim that of PCRA claim. con- ously litigated.” The Commonwealth rejecting ineffective for court trial counsel was “the PCRA misidentified cedes law, Pennsylvania petition post- Superior expressly a Pennsylvania Court Under 3. The dismissed insofar conviction review should be presented: question Boyd "Where noted the "allegation "previ- as the of error” has been plea negotiated guilty prosecutor a the offered litigated.” ously 42 Pa. Cons.Stat. Ann. mitigated range guidelines, of the in the 9543(a)(3). previously § issue has been "[A]n strong against [Appellant] the case was so highest appellate litigated if ... the court in presented also several to be untriable and petitioner could had review as which the have aggravat- expect a sentence in reasons right of of has ruled on merits matter above, range was trial counsel ineffec- ed issue____” 9544(a)(2). § Part III of Id. failing of tive in to discuss relative merits opinion that the Judge Hardiman’s concludes prosecution’s [Appel- accepting the offer with procedural "previously litigated” rule is not lant]?” agree. rule. I default discussing it Pennsylvania an earlier offer before Superior Whether legal with him contains both factual and factual Court’s determination “unreason- elements, must establish both 2254(d)(2)’s § able” under 28 U.S.C. defer- that, First, prevail. order to he must show distinct ential standard is from the thresh- fact, of his trial had as matter counsel question old of that standard is rejected the initial offer before Teti, place. first applicable See Second, had an it. opportunity consider (“[T]he adequacy the [state- of must demonstrate that this factual procedures and of decision court] are legally of affairs amounted to ineffective 2254(d), § through addressed lens of counsel, is, of assistance that such matter.”).6 as a threshold The state by Boyd’s behavior counsel was constitu- rejection Boyd’s courts’ of ineffective assis- tionally prejudiced him.5 deficient and tance counsel claim is to AED- entitled Pennsylvania The Superior Court found adjudication PA deference because it is an Boyd could not establish the factual ele- ment his claim because the had court on the merits. The Pennsylvania Superior already on appeal found direct trial recognized the Court distinct nature of “fully [Boyd] counsel informed about the Boyd’s Pennsylvania PCRA claim. The offer, availability but original Superior disposed Court [Boyd] decided to take chances on factual than legal grounds, rather but sentencing.” discretion as to 2254(d)(2) only this means that it is Pennsylvania Superior Accordingly, applies federal review of the claim.7 adjudicated Boyd’s claim on PCRA Pennsylvania Superior The Court relied on merits, rejecting it because the court finding a previous stage made at in the rejected predicate had its at an factual but litigation, prevent this does not its stage litigation. earlier Penn- being from an adjudication decision on the sylvania Superior Court therefore no only merits. It means that federal courts question occasion to reach the legal wheth- reviewing Boyd’s petition habeas should er, if rejected trial counsel had offer the Superior opinion examine the before Court’s on consulting Boyd, such conduct would constitute appeal, ineffective assistance. direct well opinion as its on prejudice 5. prong The question of Strickland calls for of whether is entitled to relief another factual determination: Would the de- under AEDPA’sstandards. injury fendant have avoided the of which he complains if performed counsel not defi- Pennsylvania 7. the Superior Since Court re- ciently? prevail only can if the jected predicate Boyd's the factual of PCRA question answers this in the affirmative. claim, ineffectiveness it did not have occasion apply prong to either of the Strickland test. Judge opinion Accordingly, Boyd Sloviter's states that the Su- if is able to show the perior direct-appeal opinion Court's "was state-court factual determination "unrea- clearly 2254(d)(2), based on 'an unreasonable determina- § sonable” under and that his tri- light tion pre- reject of the facts in evidence al counsel did the initial him, sented proceeding,’ in the state court consulting [is] before the District Court therefore not apply prongs entitled to the re- deference should the two of the Strickland quired by Op. AEDPA.” Rompilla, Sloviter at de test novo. See U.S. (quoting 2254(d)(2)). § 28 U.S.C. But (examining prejudice 125 S.Ct. 2456 the formulation, believe, this prong I does not distin- of a Strickland claim de novo because courts, guish question between the having unreasonably threshold of state the found is, whether AEDPA is performance adequate, deference due—that counsel’s never 2254(d)’s issue). § apply whether standards the reached that —and review, evidentiary on the claim hearing in order to determine unless collateral adjudication of applicant the state-court the shows that— Boyd’s claim was “unreasonable.”8 (A) the claim relies on— the courts decided both vari-

Since state (i) law, a new rule of constitutional of Boyd’s ineffective assistance ations of made retroactive to cases on collat- merits, Boyd eligi- claim on the counsel Supreme Court, by eral review the satisfy can the only relief ble for unavailable; previously that was or 2254(d). § by 28 imposed standards U.S.C. (ii) a factual predicate could District erred Accordingly, the not been previously have discovered exercising de review of claim. novo the through exercise of due dili- with I reverse and remand instruc- would gence; and apply tions for the District Court (B) underlying the facts the claim Terry See proper AEDPA standards. would be sufficient establish Williams, 402-413, U.S. convincing clear and evidence that but between (describing difference error, for no constitutional reasonable review). 2254(d)’s § novo standards and de have the appli- factfinder would found appeal, of this other In course cant guilty underlying offense. have arisen should be dealt issues not contend that he As does can with One issue involves on remand. fulfill conditions either held evidentiary hearing federal 2254(e)(2)(A) (B), open- § the section’s Magistrate Judge. Although both If dispositive. clause is “failed ing Court relied Magistrate Judge and District factual develop the basis” his claim hearing, testimony from neither court, then he should not receive a Rec Magistrate Judge’s Report evidentiary hearing. federal nor District Court’s ommendation clause, construing opening opinion appeared to examine whether pur- has AEDPA, Supreme Court stated that complied “[t]he hearing U.S.C. 2254(e)(2). fault of ‘failed’is to provides: pose component section That prisoner ensure the undertakes his own applicant If the a writ habeas [for diligent search evidence.” Michael the factual corpus] develop has failed Taylor, proceed- Williams v. of a claim State court basis (2000). 146 L.Ed.2d 435 ings, the court shall hold [federal] merits, distinguishable adjudicated the case is from those in have been on This appeal, highest of the case in Cone. But on PCRA the which the state court relevance recognize Pennsylvania Superior correctly recog- petition- the the Court failed to nature of adjudicate peti- Boyd's correctly claim found that claim and thus failed to nized er's purposes underlying claim the for of the factual issue had tioner's claim “on merits” 2254(d). erroneously previously § a state court been decided. When state courts When litigated, correctly previous- previously a been find that an issue has been believes claim has ground, litigated, question ly there the on federal habeas and dismisses the on that See, 2254(d)’s § is decision the merits. review is not whether standards no state-court on Cone, do), e.g., (holding apply (they a rather to which state- but opinion adjudicated apply we them. claim had not on the merits court should been Cf. Bond, (Where F.3d at 289-90 a lower where state courts had found it to have been (and litigated opinion "represents the previously on that state-court state dismissed it been). ground), opinion relevant [the but in fact it had not The courts’ last reasoned on issue],” higher through” its the PCRA Court here made this mistake. If we should "look 2254(d)’s apply § opinion and had state-court word state-court decision been final matter, highest opinion.”). Boyd's not "to the reasoned on the PCRA claim would standards sufficiently argues diligent finding that he was in where on is based the credibili- hearing in seeking evidentiary an ty of a testifying magis- witness before the 2254(e)(2) court, § and that is therefore no trate and the judge finding dispositive Judge’s Magistrate hearing. obstacle to the an application post-conviction in- relief (“If See id. at 120 S.Ct. 1479 there has volving rights the constitutional of a crimi- of diligence been no lack at the relevant nal Beyer, defendant.” Hill v. stages in proceedings, prison- the state (3d Cir.1995) (citing United States develop’ er has not ‘failed to facts Raddatz, 681 n. U.S. 2254(e)(2)’s clause, § under opening and he (1980)). 2406, 65 L.Ed.2d 424 This showing will compliance be from excused grounded, part, rule is pru- least on with the balance the subsection’s re- judicial system dential reasons. “Our af- quirements.”). The Michael Williams fords to the finder of deference fact who exhaustively explain Court did not what a testimony hears the live of witnesses be- do to be “diligent” must deemed opportunity judge cause of the the cred- statute, under the but it did state that ibility of those witnesses.” Id. Although “[djiligence require in will the usual case Boyd evidentiary had testified at the hear- minimum, prisoner, that the at a seek an ing by Magistrate held Judge that he evidentiary hearing state court in the accepted would have the initial offer had prescribed by manner state law.” Id. adequately he been advised trial coun- remand, On I instruct would sel, Magistrate Judge concluded that District in the decide first in not, fact, finding the case. This stance efforts obtain a implied necessarily a determination that evidentiary hearing state-court were suffi Boyd’s testimony was credible. Apply- not cient to hearing. allow federal If the ing review, novo de standard of the diligence finds satisfied Court, District holding hearing without 2254(e)(2)’s requirements §of opening own, rejected of its Magistrate Judge’s clause, may again rely it evidence determination and found Magistrate Judge’s adduced in the earlier prejudice prong satisfied the of Strickland. otherwise, hearing; this evidence should Boyd, 2007 WL at *5. I would hold be excluded. that, again the District Court reaches prejudice prong of the Magistrate Strickland test Judge’s hearing, if after permissible, applying the deferential raises another issue. standards of We 2254(d), have may held that district court U.S.C. hold “[a] should its own reject finding aby magistrate evidentiary hearing fact if it declines to adopt judge an evidentiary without hearing, Magistrate Judge’s finding.9 hearing might 9. Such a accompanying have the additional its Memorandum and Order developing benefit of further the factual points rec- refers to both terms at different with- light ord in issues that dispute have surfaced in out clarification. This factual could might appeal. the course of this It also be illu- relevant to the appro- determination parties' minate continuing dispute priate remedy the factual if the District Court reaches specific sentencing proposed over the again term that issue on remand. The details of the plea initial offer. plea has contended the prejudice offer could also on the bear that prong the was for a term offer of incarceration of the Strickland test insofar as the eight years, of length four to the proposed whereas Common- of the sentence affects the advised, wealth Boyd, has maintained the offer was for properly likelihood that if years. term Although of four ten accepted the would Dis- have the initial trict conditionally granting taking Court order the instead open of his chances with an writ years, plea. describes term as four to ten self-serving tes- that it Cullen’s for the Second disbelieved Appeals of The Court evidence, timony; pointed conclusion on it had other the same Circuit reached innocence, weighed United his that of facts. Cullen like claims similar set Cir.1999). Nonetheless, States, Peti- testimony. against and convicted recognized preju- had been tried that the tioner Cullen Second Circuit habeas sought relief drug necessarily offenses and involved a dice determination determination, counsel had that his trial ground on the at and credibility id. adequately with re- to advise him failed pieces of evidence extrinsic Cullen’s that, accept- bargain offer spect statement, to a claims of self-serving like his in a shorter sen- ed, have resulted would disparity and “the between innocence magistrate judge found tence. and the guideline range faced [Cullen] deficiently and that performed had counsel,” counsel range as represented defense Cullen, prejudiced performance had bearing upon [Cullen’s] were “faetor[s] if [de- that “Cullen testified noting Accordingly, at 408. un- credibility.” Id. had the sentenc- discussed counsel] fense precedent including der the line of pleaded have he would ing guidelines decision in United States Court’s The district court guilty.” Id. 403. and our in Hill v. v. Raddatz decision deficient-performance agreed Cullen, 405-07, the Beyer, 194 F.3d at see taking rejected, testi- “without prong, but vacated the district court’s Second Circuit prejudice magistrate judge’s mony,” the remanded, that, “if the judgment and so (based in on the fact that finding part accept [again] District declines to adamantly inno- protested Cullen had live any credibility findings made based on cence). district court Accordingly, the Id. testimony Magistrate Judge,” before the denied the writ. opportunity there would “be an for Cul- after the credibility len’s to be assessed vacated and remand-

The Second Circuit him seen heard District Court has court had char- Although the district ed. testify.” law, at 407. matter of Id. the issue as a acterized prejudice noted that Second Circuit respect Cullen instructive another is “essentially factual question hinged remand or- as well. The Second Circuit’s 405; see id. determination.” Id. case to a district assigned der different (“[T]he of the likelihood that determination I do same here. judge. court would have accepted would bar- Cullen solely by is reassignment This dictated gain fully if he had been informed of its appearance impar- concerns about likely of the accurately terms and advised tiality procedur- inherent in the —concerns ranges plea bargain sentencing under case, recog- posture al of the as Cullen was, trial like all upon conviction after nized.10 been, have predictions might of what one.”). reasons, issue, I For reverse hypothetical albeit a these would factual a different court simply court not asserted remand to district The district had judge appropriately dis- original were to remanded to a different If the district court hearing only recognition judge the same after reach conclusion trict testimony, judge putting live those difficulty might have views, previously expressed but aside h[er] judge's] de- [the district unaware jus- fairness, preserve appearance also reputation for would won- served here. tice course warranted [T]hat .... permitted h[er] der whether Cullen, (internal quotation at 408 ruling to second deci- prior h[er] influence omitted). marks are when matter is sion. There occasions judge.11 lawyer rejected before it.” Petition Corpus for Writ Habeas Pursuant to 28 SLOVITER, Judge, Dissenting Circuit Warden, at Boyd U.S.C. SCI Opinion, Concurring Judgment in the (E.D.Pa. Waymart, No. 06-0491 Feb. Court, joins. which Judge McKEE 2006). reviewing Judge opinion, Hardiman’s whom Magistrate Judge The to the Dis- (1) important Judge it is to note: that trict Court referred the for Petition Habe- Boyd’s Hardiman never denies that coun- found, as after Corpus evidentiary sel did not inform Common- hearing, that trial “did in counsel fact re- plea Boyd pled guilty; wealth’s offer before ject plea the Commonwealth’s offer with- (2) Judge Hardiman never denies that Petitioner,” out prior consent of App. an obligation directly counsel has to inform at 22 (emphasis original), although proffered of a plea agreement; defendant Judge Magistrate recommended denial of (3) Judge flatly Hardiman never Court, the Petition. The District in ruling states that failure to a client of a advise on Corpus, agreed, the Petition for Habeas plea offer ineffective is assistance coun- holding, on undisputed based facts: “This (4) sel; nothing in that there is the record trial finds that counsel did not com- support to assumption state court’s plea municate the offer to Petitioner be- (and nothing an assumption) is short of rejecting plea fore thus failed to that Boyd “knew about the initial plea guaranteed act as ‘counsel’ as under the yet offer decided to ‘take his chances with Sixth 11. App. Amendment.” (5) ”; the discretion of the court’ The appealed Commonwealth to this majority of the en banc has not court and listed as one of the three issues adopted Judge nor endorsed Hardiman’s presented: “Whether counsel was view of effect Mabry. Tollett constitutionally ineffective for failing to principal issue on appeal raised convey original plea directly offer to whether, found, as the District Court ” Boyd.... Appellants’ Br. at 2. In Sup- its trial for Christopher counsel the defendant plemental Brief filed at our direction after Boyd was ineffective when he failed to we granted banc hearing, en Common- directly communicate offer wealth listed one of the issues: “[i]f (or of 4 years to 10 4 to years) made trial counsel communicated the the Commonwealth. The Petition for a directly, only but through Writ of Corpus Boyd, Habeas filed who mother, Boyd’s would this in itself amount years, alleged sentenced 8 to 22 to ineffective assistance of counsel?” conviction “[t]he was obtained and Supp. Appellants Br. at 31. sentence imposed violation of the Sixth Hardiman never this question. answers right Amendment to effective assistance of answer, To reach the we must review the counsel at all critical stages.... The Peti- proceedings that have a young landed man alleges tioner trial counsel failed to prison years. for the last seven plea agreement communicate favorable Judge Hardiman’s it; opinion concedes that rejecting before that trial counsel failed briefing argument “the extensive and oral agreement to discuss a favorable plea be- presented fore it. banc rejecting alleges The Petitioner Court en focused accepted year plea entirely [i.e., would have the 4-8 substantive issue Sciolla, it been presented counsel, to him for consideration whether trial express opinion I no the ultimate about merits of claim. mentally incompetent. to held be Op. at 367.12 Hardiman ineffective].” opinion dispute does not that there Nonetheless, Judge Hardiman’s Commonwealth regarding competency. of Sciolla’s was an issue adequacy that “the never concludes (“ADA”) Attorney respect to Com- The District with Assistant representation plea offer is im- case guilty plea assigned initial extended offer monwealth’s and, material,” Op. in so Sciolla, at for a term im- Hardiman to which called of (or substantially scope ten) concluding curtails four to four prisonment eight to offer, and effect Strickland. rejected telling years. Sciolla “unacceptable.” App. it was the ADA that I. offer, 40. rejecting at After Sciolla mother), Boyd her (Boyd’s called Mrs. told Background offer, plea and stated that he about The Original A. Offense rejected already had the offer.13 When accurately opinion Judge Hardiman’s hearing the Magistrate asked at the before relating to the commis- the facts describes rejected Judge already he had whether Boyd indeed com- of the offense. did sion prior plea bargain offer to the conversation Jones, grievous mit a assault on testified, Boyd, with “I Mrs. Sciolla had.” by the fact mitigated be excused or cannot 40; at also at 35. App. App. see that, police, later told Jones' Boyd undisputed It is that did not com- Sciolla Boyd pay if not threatened that did Boyd. directly offer to App. municate the bet, Boyd’s parents. App. kill Jones would Judge at 35.14 Hardiman states that “the question Boyd is no that at 167. There found that informed Sciolla charged aggravat- appropriately was with initial assault, Boyd offer and weapon, possession ed accept Op. chose to it.” Hardiman proceedings It is the not related offenses. acknowledges are at the heart of the 378. He never that thereafter wrong-and state court was disas- issue before us. trously wrong. When under asked oath Guilty B. The Plea Boyd’s federal habeas counsel if Sciolla directly attorney ever communicated the offer Boyd’s parents Guy retained said, Boyd, Boyd. At to defendant Sciolla represent “[n]o.” to all relevant Sciolla App. and was never at 38.15 When Sciolla was asked times was adult directly spends Judge opin- of his counsel never communicated the 12. Hardiman much bargain Boyd, again categorizes that he as the offer once demonstrat- ion on the issue issue,” ing Superior error "procedural the factual stated claims procedurally defaulted. Court. are unexhausted and of exhaustion Whether or not discussion Q. all, you time made 15. ... at the [F]irst procedural default in Hardiman’s Nancy the conversation communi- correct, propose opinion is I do to com- cate there had been an offer four ment thereon in this dissent. eight you already rejected years, had the offer? asked, oath, pretty was A. I had much told the assis- 13. While under Sciolla I had. "During you attorney thought had I tant district the conversation know, was, way top; Boyd, you any you time indicate that over the and it Mrs. did that, know, you you rejected the ...?” an- that offer was had Sciolla wasn’t as withdrawn, swered, told, App. pretty but I much I did....” at 35. "I Bologna, was the believe it Jason who case, prosecuting then assistant D.A. argument, At oral the Commonwealth con- unacceptable. thought And dispute that was that trial that I ceded that there no not; Magistrate only under la that he did he oath said told Mrs. four to whether he “ever discuss [ed] App. about the at Boyd Boyd offer. 46.16 with eight [year plea [Boyd]?,” offer] Sciol- Boyd decision-making process. I that to communicated Ms. A.—in —Mrs. Q. Boyd. Okay. added). App. (emphasis at failure Sciolla's A. And I’m not sure he did— even Q. Boyd potential Okay. to sentence with discuss the appears testimony: in Sciolla’s other participate in that. A.— Q. go you And over in detail the sen- did tencing guidelines— thing, THE COURT: Just one Mr. Sciolla. No, A. I— say you’re participat- that he You not sure Q. Christopher Boyd— —with you eight Did ed. ever discuss the four to A. —I never— him? with Q. you that —before made that —before Only through THE WITNESS: his mom. recommendation? COURT: THE His mom. No, A. to I would—I—I never talked them THE WITNESS: Yeah. sentencing guidelines. about the App. at 45-46. App. yet again: at And 40-41. hearing Boyd in the Later himself testified as Q. during you the time that were And con- follows: veying Nancy Boyd that the Common- to Q. point, you At some did learn that the eight wealth had made an offer of four to Commonwealth had made an offer of four years you rejected unaccepta- had it as eight years you? to to ble, you Nancy Boyd did also tell that A. Yes. might Christopher get years? as much as Q. you And how did find that out? No, thought A. No. I never would have Through my A. mother. possible. that was Q. you, you And how old were do recall Q. you Christopher And did ever tell conveyed you? this offer when to get might years? that he as much as 22 I was 20. A. Absolutely A. not. Q. Okay. any Did Mr. at Sciolla time dis- App. at 41. you you directly, personally, cuss that shortly point The same was reiterated the Commonwealth had made an offer of thereafter: eight years you? four Q. During you the entire time that were No, A. never. Boyd, representing up point Chris until Q. you Did any Mr. Sciolla at tell time case, guilty plea where he entered you pled guilty Pennsylvania before that summary your testimony is it a correct sentencing guidelines? had you Pennsylva- never had discussed No, never. A. Sentencing nia's Guidelines with Christo- Q. you Did you pled Mr. Sciolla tell before pher Boyd? you get guilty that could much more than Yes, A. that is correct. eight years four to case? in this Q. you And is it also correct had No. A. get never told that he Mr. could much Q. any Did you Mr. Sciolla at time ask eight years more than four to if personally you accept whether wanted to convicted? four-to-eight-year offer from the Com- A. I don’t believe I ever said he could monwealth? more, get I—I said I wouldn’t what know No. A. be, the actual would we sentence but know Q. If explained you Mr. Sciolla had eight, that four I never saw more than guidelines sentencing there were in Penn- him, eight coming my hope four to so sylvania you get and that could much more get was that we could below based on eight you years than four to were convict- my strategy. ed, you regarding what would have done Q. But the information that Mr. four-to-eight-year plea offer? decision-making process in his was four to I accepted A. would have the offer. eight years pretty much what he could App. at 60-61. expect? participated— Despite A. answering To the extent he question "no” to the Q. The maximum? he ever told about the years imprisonment. App. that Sciolla at no four to eight under oath then testified directly 46. per- him and discussed with time had made

sonally that the Commonwealth The plea Commonwealth states the (or ten) four eight of four to to an offer agreement open, remained a statement at App. 60. years. supported which it by any has written by by any communication it nor affidavit in the record the support There is no by prosecutor.17 the Sciolla testified that that statement of- “[t]he Commonwealth’s he did not know if it was still open an offer Boyd directly fer was discussed with at it. rejected after he had Hardi- in the points proceedings.” later several opinion man’s there dispute states is a only Br. at 7. The citation to Appellants’ regarding the whether offer remained that record bears on this statement is the open rejected after it. Sciolla Hardiman to in footnote 4. colloquy the referred at if Op. 365 n. 28. Even the Common- willing wealth had been to the re-extend addition, In Sciolla did not discuss with rejected offer after it Sciolla but before the Boyd statutory the maximum sentence guilty plea hearing, Boyd it did not know could did that he receive. Sciolla not dis- because never told him Sciolla and there Boyd Boyd family cuss with or the the no an outstanding was mention of offer at Guidelines, in- Pennsylvania Sentencing guilty plea hearing or sentencing. The sentencing cluding possible enhancements reason it is irrelevant whether the offer aggravating He and factors. never told technically open was still it because was that he Boyd could receive sentence as Boyd. never with The discussed Common- twenty-five imprisonment, high years argue wealth does not otherwise. statutory was the maximum. which Sciolla Boyd plea counsel did not about bar- following On October Seiolla’s offer, maximum gain statutory penalty, advice, Boyd open guilty plea entered guidelines, how sentencing those fac- aggravated possession to assault of an impact Boyd’s decision tors should wheth- instrument of crime. Commonwealth accept plea bargain, agreed er to enter an to enter a nolle to the prosequi fact, go or trial. At open plea, charged to what other offenses. collo- plea that he Boyd quy, Boyd did tell could the trial court asked if he had a Sciolla eight years four to chance to he receive sentence of talk Sciolla about whether Boyd did not tell wanted to that imprisonment. plead guilty, Boyd Sciolla said get eight Boyd, that he could more than four to he had. The court did not as it tell know, years imprisonment. likely also Sciolla testified had no reason [Boyd] par- that he is “not even sure did” had made a offer to Commonwealth decision, Boyd, any in the but nor it comment on ticipate did Rather, only open. participate, extent did such offer was still “[tjhere get information he had was that could is no informed offer, "[tjhere bargain open plea plea bargain then stated that Sciolla —discussed (lines directly Boyd. App. moments offer with See at 38 were when I sat Chris and I 14-18), (lines 18-23), (lines 12-15). him, repeat the it did offer to but would have way App. the fact....” at been after after — It is not when that Judge's clear would have Magistrate hearing 17. At the Sciolla occurred, did, year or what Sciolla meant testified don’t believe 4-8 [the that "I Still, table,” separate three App. that statement. there are offer] ever off the but supports where the evidence times record there is no record corroboration of a continu- ing prior never—not Commonwealth. conclusion Sciolla even ” months, plea agreement App. this case.... 96-264 eight twenty-two years imprisonment. 159. The court informed This must be com- pared to the statutory twenty- [or maximum sentence was 48-96 48-120 months] months sentence had the offer been years. five The court did not inform accepted. guilty plea sentencing before the what the guidelines prescribed charged for his of- II. fenses, nor did the court explain appli- cability aggravating circumstances to History Procedural Boyd’s Boyd The court never asked case. Boyd timely appeal filed a direct in the explained whether Sciolla had to him the Pennsylvania Court, Superior alleging in- sentence, statutory potential maximum the effective assistance of Boyd counsel. was sentencing guidelines, concept or the represented not by Sciolla appeal. on that Likewise, aggravating circumstances. In the appeal Court, direct to the Superior court never asked Sciolla whether he had Boyd attached an appellate affidavit to in Boyd respects. counseled those Sciolla brief, counsel’s in which he stated: “[Sciol- though Boyd testified that even walked did not directly la] discuss the offer with through plea colloquy, he did not seem me any on that date or at other time.” fully grasp to poten- seriousness of the ¶ App. at 3.18The brief also raised tial sentence. App. at 37. arguments regarding Sciolla’s failure to Boyd tell about sentencing guidelines Sentencing C. statutory maximum, and as well as his The trial court applied aggravated any failure to counsel in meaningful sentencing guideline range (applicable way options about what his were with re- when an offense involved the use of a (ar- spect to the guilty plea. App. at 113 bat). deadly in weapon, this case a baseball guing that a hearing was necessary to The court sentenced to a sentence of “why determine [Sciolla] elected not to imprisonment 84-240 months on the as- [Boyd’s] potential discuss sentence under charge sault and 12-24 months on the Guidelines, why and trial counsel for weapon possession charge, to be served no apparent rational reason chose to ad- consecutively. resulting The [Boyd] sentence was vise not to take the D.A.’s offer affidavit, 18. part, me, plead in relevant guilty. reads as through my He told moth- er, follows: "unacceptable.” the offer was He did I, BOYD, hereby CHRISTOPHER do de- directly discuss the offer with me on that verify clare and as follows: any date or at other time. charged 1. aggravated I was assault case, Except my parents 4. for this and I and arising related offenses from an incident are justice sys- unfamiliar with the criminal old, July years on 2000. I my am 21 tem entirely dependent upon my and we were date of birth arrests, prior is 6-24-80. I had no attorney’s explain He advice. did not juvenile, adult prior and no contact Sentencing Guidelines to us. any justice kind system. with the criminal sentencing hearing 5. At the on December 28, 2000, July 2. On attorney I met with 18, 2001, eight I was sentenced to serve to house, Guy my parents’ Sciolla at where I twenty-two years prison. presently I am also resided. Mr. Sciolla is a close friend of SCI-Waymart. incarcerated at my by marriage, Patty mother's niece Smith. 6. I now Sentencing understand the represent He said that he my would me apply my Guidelines which to case. At Of- criminal case. Gravity fense deadly Score of where a 4, 2001, January 3. On spoke Mr. Sciolla used, weapon range the standard sentence my phone mother on the and asked her to months, plus is 54-72 or minus 12. tell me that the D.A.’sOffice had me a offered App. at 116. eight years of four prison if I would App. he had at re- recommended sentence.” at 85. the best chance That time.”). patently erroneous in jail light duced conclusion affidavit Boyd’s stating counsel dated November opinion directly informed him never appeal, Superior direct Boyd’s on bargain light offer of the legal Boyd’s of sen- judgment affirmed Comb precedent Superior that the cited in Court ac- Although Superior Court tence. very Boyd’s denying decision claim. affida- Boyd’s the existence of knowledged Instead, Superior concluded to Boyd’s appellate vit that was attached ineffective, was not and that Sciolla brief, portion not refer it did arguable claims were “without merit.” quoted affidavit above. The Court App. appealed Pennsyl- 88. communicated the found that Sciolla Court, vania which denied alloca- “fully [Boyd] informed February tur availability original plea about the This state- App. offer.” at 85. erroneous 2004, Boyd filed for On October re- or the rec- misinterprets ment misstates Pennsylvania’s lief under Post Conviction ord. (“PCRA”), Act Relief 42 Pa. Cons.Stat. 9541, claiming that trial counsel ren- Court, Boyd Superior In his brief ineffective dered assistance of counsel Napper, had v. cited Commonwealth to consult about failing (1978), in sup- A.2d 521 Pa.Super. plea offer. The Court Commonwealth’s of port claim for ineffective assistance of his (the court) Pleas Common PCRA dis- Napper had convicted of of counsel. been petition February missed on 2005. robbery and sen- aggravated two counts of five to to two consecutive terms of tenced rejected Boyd’s court claim The that trial years imprisonment. The twenty “guilty plea counsel ineffective for ad- Napper’s post- court for petition denied reject negotiated vising defendant to coun- upon relief that was conviction based light four to plea eight years offer of of failing fully to ad- sel’s ineffectiveness charged” the seriousness the crimes availability plea of a Napper vise “appellate constitutionally that counsel was bargain Superior The Court re- offer. failing make the forego- ineffective versed, reasoning that had failed counsel on ing argument appeal.” App. direct at risks, “to make clear ‘the [to client] that 76. The PCRA court concluded this ” at prospects of ease.’ Id. hazards or previously litigated had argument been be- cause, appeal, Superior on direct Comb Boyd’s guilty plea held that entered Boyd’s

In opinion appeal, its on direct knowingly, intelligently, voluntarily. that Superior recognized Court 76.19 The court then App. at PCRA stated “all that he Napper, counsel but admitted that, assuming arguendo that the claim in failing had to advise been ineffective litigated, the previously had not been claim fully availability plea on the of a [Napper] merit there is was without because no bargain____” App. 85. The Court right plea. absolute withdraw The sought distinguish by the state- Napper circumstances, plea ment, court stated withdraw amazing “[t]o under the sentencing, after defendant must make a Boyd’s “counsel him of informed plea bargain showing prejudice amounting and the to mani- existence of the first non, Cir.1992) (''[T]he right plea, vel Sixth Amendment 19. The voluntariness of a guarantees assistance of counsel distinct from the issue counsel's ineffective- to effective right to a failing provide adequate than the Fifth Amendment fair counsel- more ness for trial.”). ing. Day, v. United States Cf. injustice[ ... fest would involve a ] [which] Commonwealth’s offer without Petitioner____” was entered involuntarily, prior which into consent of at 22 App. unknowingly, unintelligently.” App. (emphasis original). Magistrate The (citations omitted). Significantly, Boyd’s even concluded that claim was not defaulted, holding procedurally the alternative ultimately PCRA but he Boyd’s does not discuss claim of denying petition ineffective recommended on the of counsel nor the prejudice assistance merits. therefrom.

resulted The District Court did not adopt 23, 2005, November the Superior Magistrate Judge’s Report On and Recom- affirmed the denial of the although PCRA mendation the District Court also petition. Superior Court determined made the same relevant factual finding Boyd’s claim was unreviewable undisputed based from the facts on the record upon Pennsylvania’s “previous litigation that “trial counsel did not communicate the already rule” because raised the offer to rejecting Petitioner before issue appeal. Nish, on direct The Superior plea.” Boyd 06-0491, No. (E.D.Pa. Court’s opinion appeal 2007). from the PCRA WL at *4 Jan. Boyd’s court’s petition dismissal PCRA agreeing addition to never discussed the merits of procedurally because, inef- was not defaulted and, fective assistance case, of counsel claim ob- under the facts of previous viously, never litigation discussed whether there was doctrine is not a state rule of any prejudice resulting procedure, *3, therefrom. It fol- id. at the District Court only lows that the opinion state court reviewed claims de novo. It did so for purposes relevance of AEDPA is the because the state courts “failed to accu- Superior opinion 18, rately of November construe” claims and did not above, opinion, as noted that was cite “relevant precedent.” federal Id. clearly based on “an unreasonable deter- *2. The District Court concluded that trial mination of the facts in light of the evi- counsel’s failure to communicate the Com- presented dence in the pro- state court plea Boyd monwealth’s offer to constituted “ ceeding,” and therefore not entitled to the ‘gross deviation accepted profes- from ” required by deference standards,’ AEDPA. See 28 sional and thus constituted 2254(d)(2). § U.S.C. act failure to as counsel under the Sixth Amendment. (citing Id. at *4 United Boyd court, turned to the federal having States ex Zelinsky, rel. Caruso v. 689 F.2d exhausted options. his state court He Cir.1982)). The Court also petition filed a corpus, pursuant for habeas concluded that had demonstrated to 28 U.S.C. in the United States prejudice because he testified he would District Court for the Eastern District of have accepted the Commonwealth’s Pennsylvania. The District Court referred offer, whereas the sentence he received the case to the Magistrate Judge who held was significantly greater than of- first, only, evidentiary hearing on fer terms. Id. at *5. Boyd’s claim of ineffective assistance of counsel. Magistrate Judge heard the The District Court entered an order Sciolla, testimony Boyd, and his conditionally direct granting Boyd’s petition for appeal counsel. Because of importance its corpus January habeas 2007. None- appeal, to the issue on repeat theless, I here currently serving a sen- Magistrate Judge’s finding of fact: “I eight do tence of twenty-two years impris- find that reject Sciolla did in fact onment in a facility.20 state correctional 20. After the District directing Court order the Commonwealth to extend its jurors, grand in selection of he seven crimination more than already served He has attorney’s that his ad- must also establish years. having made plead guilty vice to without III. grand composition into the inquiry Discussion outside the jury rendered that advice competence demanded of attor- ‘range Guilty Plea A. The ” neys.’ Id. at opinion would decide Hardiman’s premise on the primarily case to the issue before Tollett is irrelevant inef- entire claim of conceded his Boyd has guilty plea challenge Tollett’s to his us. of counsel because assistance fective right to the state’s to convict was directed guilty plea sentencing agreed by indicted an uncon- a defendant who was voluntary, intelligent, knowing, grand jury. If Tol- stitutionally selected 372-73, and has never Op. at Hardiman successful, as it was in challenge lett’s Quoting from position. from that receded he would have been Appeals, the Court of 504, 508, Johnson, v. U.S. Mabry and a new trial entitled to release follow- (1984), Judge L.Ed.2d 437 ing by properly his indictment constitut- states: “It is well set- opinion Hardiman’s grand jury. ed That was the relief direct- voluntary intelligent plea that a tled Circuit, by ed the Sixth see Henderson has person, an accused who guilty made (6th Tollett, Cir.1972), counsel, may by competent been advised Court modified and which collaterally attacked.” Hardiman not be findings. for further remanding added). course, Of (emphasis atOp. Boyd’s claim that in this case is the issue cry That is a far from what has by competent counsel. he was not advised contending and what he seeks. been Furthermore, Mabry nor Tollett neither exculpated claim he be does not should that counsel any allegation made

was there violation of some constitutional because in an ineffective manner. performed seen such cases when the state. We have Henderson, 258, 411 U.S. 93 In Tollett v. allege a Miranda appellants petitioners or (1973), 1602, L.Ed.2d 235 a state S.Ct. violation, violation, or a Bruton Brady pled guilty to murder who had prisoner contrast, that Boyd In admits violation. sought a writ of twenty-five years earlier for which he was he committed the assault that corpus ground on the habeas argue not that his convicted. He does him excluded Af- jury that indicted grand overturned because of conviction should be Americans, an that had rican exclusion an antecedent constitutional violation. His already declared unconstitutional. been forthrightly conceded be- current counsel 259, 261, 1602. Instead of Id. at 93 S.Ct. guilty, and fore this court that of the lower courts affirming the decision voluntarily guilty knowingly pleaded release, re- directing Tollett’s Court goes not to his to the assault. His claim manded, holding “respondent that must plea but to his sentence. guilty unconstitutional dis- only not establish the 22, mart, (E.D.Pa. 2007). Aug. Attorney, by letter No. 06-0491 again, the District once 22, 2007, states that "this offer is August Boyd that it The letter further wrote to dated pending on the outcome of plea in the above conditional “formally presents a granting Judge order years appeal from Tucker's ten of incar- case of four to referenced appeal in this case.” The has habeas relief in a state correctional institution.” ceration years pending two since remained for almost Response Application for Unconditional Warden, letter; Release, A, jail. Way- remains v. SCI Exhibit challenge guilt. challenge finding his factual the District does Court’s guilty He does not wish to withdraw his pleaded guilty with the of advice com- trial; he seeks the more plea and stand petent counsel and with full awareness of in the initial favorable sentence contained consequences.” 510, Id. 104 S.Ct. Boyd does not contest plea offer. Because may 2543. Whatever be the similarities in sentence, only guilty his his guilt, his but the facts Mabry, between this case and does not render irrelevant —and thus these factual similarities are irrelevant as does not bar—his claim. respondent in Mabry, Boyd, unlike Tollett, subsequent In a case the Su- chose not to contest the conduct of his preme stated that Tollett “[n]either attorney. Henderson, nor our earlier cases on Judge opinion Hardiman’s is so focused relied, proposition

which it stand for the seemingly properties on the talismanic of guilty pleas counseled inevita- [valid] phrase “knowing, intelligent, and vol- bly ‘waive’all antecedent constitutional vi- untary” that it is unable to see the addi- .... emphasized [I]n olations Tollett we requirement competent tional of counsel in ingredient waiver was not the basic Tollett, or that different iterations York, this line of cases.” Menna v. New Supreme samé test have been used 423 U.S. 63 n. 96 S.Ct. itself, Court. Tollett Chief Justice (1975) curiam) (internal (per L.Ed.2d 195 (then Rehnquist Rehnquist) quoted Justice omitted). Instead, point citations “[t]he Supreme from the Court’s earlier decision these cases a counseled Richardson, in McMann v. guilty is an admission of factual guilt so (1970), 25 L.Ed.2d 763 that, voluntary reliable when and intelli- where the in reviewing Court stated that gent, quite validly removes the issue of counsel, claims of ineffectiveness of (second guilt from the case.” Id. factual “ focus is ‘not on court would added). emphasis Court’s retrospectively consider counsel’s advice to own words are a more response effective right be wrong, but on whether that reliance on Tollett in Hardi- advice within range competence opinion any man’s than I could devise. ” attorneys demanded of in criminal eases.’ guilt Must defendant lie about Tollett, 411 U.S. at S.Ct. may order that he raise the issue that his McMann, (quoting 397 U.S. at counsel failing was ineffective in to advise 1441). Tollett, See also U.S. him of prosecutor’s proposed (“When 267, 93 S.Ct. 1602 a criminal de- agreement? solemnly fendant has in open admitted contrast, Mabry did involve a chal- court that he is in fact guilty of the offense lenge to the imposed defendant’s sentence with which charged, may he is not a plea bargain. 505-06, after 467 U.S. at independent thereafter raise claims relat- 104 S.Ct. 2543. In Mabry, defendant/re- ing to the deprivation of constitutional spondent sought corpus habeas to collater- rights prior that occurred entry to the of ally attack a plea bargain second on the guilty plea. may only He attack the ground that it was unfair prosecu- for the voluntary intelligent and character of the tor to have withdrawn a more favorable guilty plea by showing that the advice he plea bargain. reject- The received from counsel was not within the argument. ed that The critical distinction McMann.”). standards set forth in Mabry’s, between case and and Hardiman, counsel, which by Judge requirement competent is not noted The of is Mabry, that in “[Respondent not surprisingly, widely [did] not is reiterated in ly repeatedly pleading and insisted on appeals. courts of the various opinions of States, F.2d See, seeking penalty. That guilty Acha v. United and death e.g., Cir.1990) (“Moreover, (1st guilty 28, 30 Langford fact not ... mean that loses does from a defendant preclude does not counsel; to effective assistance of right his assistance claim that ineffective raising a only voluntary not his must be but itself guilty plea rendered of counsel intelligent, and counsel’s advice enters into invalid.”) (citations omit unintelligent intelligence. of Coun the determination Arteca, 411 ted); States v. United range within the sel’s advice must be of Cir.2005) (“Ineffective (2d assis competence attorneys demanded of negotiations during plea tance of counsel cases.”) (quotation and citation criminal plea and make guilty invalidate a can omitted); Winans, Maldonado 728 F.2d appropriate, granting withdrawal (10th Cir.1984) curiam) (per perform counsel’s deficient extent that the (“[E]ffective assistance of counsel within voluntary and intelli ance undermines the range competence required of attor decision to nature of defendant’s gent neys representing defendants criminal (citations omitted); Ham plead guilty.”) to a indispensable voluntary guilty cases is States, 528 F.2d mond v. United omitted); plea.”) (quotation Scott v. Wain Cir.1975) (“If (4th ineffective, counsel (11th Cir.1983) wright, 698 F.2d in pleas Hammond’s were it follows that (“[A] guilty plea cannot been knowing have trilogy ... makes voluntary. Brady voluntary ... if a defendant does not non plain qua that the sine perfectly reasonably receive effective assistance of guilty is the assistance voluntary plea counsel connection with the decision to range competence of counsel within plead guilty, because does not attorneys defen required representing choice.”) (cita represent then an informed cases.”) (quotations and in criminal dants Case, omitted); tion In re Sealed 488 F.3d omitted); States v. Glin citations United (D.C.Cir.2007) (“It 1011, 1015 is well-estab (“A (5th Cir.2000) 386, 392 sey, 209 F.3d validity guilty plea lished that nonjuris all voluntary guilty plea waives depends plea represents on whether the proceedings against dictional defects in the choice, voluntary intelligent and that This includes claims of the defendant. plea depends the voluntariness of the except in assistance of counsel ineffective alleged to whether counsel’s advice satisfies the Sixth sofar as the ineffectiveness guilty plea involun guarantee have rendered of effective assis Amendment (citation omitted); States v. tary.”) tance.”) omitted). United (quotation Cir.1989) (7th Brown, 870 F.2d This court has also endorsed that view. (“Brown claim that he received does not See, 37, 42 e.g., Ryan, Siers v. counsel, which ineffective assistance of Cir.1985). examining We cannot avoid claiming that his would be a valid basis Boyd received the effective assis- knowing and volun guilty plea was making guilty tance of counsel when (citation omitted); v. Lock tary.”) Thomas plea. (“We (8th Cir.1984) hart, 304, 738 F.2d 306 the District Court that Thomas agree with B. Assistance Counsel Ineffective assistance of coun did not receive effective provides The Sixth Amendment sel; he did not make a volun consequently prosecutions, all criminal the accused “[i]n intelligent guilty tary, knowing, and ... enjoy right to have the Assis- shall 1380, Langford Day, plea.”); Cir.1996) (“The defence.” (9th tance of Counsel U.S. fact that over 1386 Const, right “An accused’s Langford strong- amend. VI. shadows this case is 350 represented by counsel is a fundamen- 1.

be Trial Counsel’s Performance justice sys- our component tal criminal Analysis of the merits of claim of Cronic, tem.” United States v. 466 U.S. ineffective assistance of counsel requires 648, 653, 2039, 104 L.Ed.2d 657 S.Ct. 80 application of the familiar two-prong test (1984). Assistance of counsel is fundamen- by enunciated the Supreme Court tal because are the means “[counsel] 668, Washington, Strickland v. 466 U.S. through rights which” the other accused’s (1984). 2052, 104 S.Ct. 80 L.Ed.2d 674 guaranteed. rights are Id. “Of all the The first prong entails a determination has, right an to be person accused trial performance counsel’s represented by far the most by counsel is objective deficient when measured pervasive ability for it affects his to assert Strickland, reasonableness standard. 654, any may other Id. at rights have.” 687, Second, at U.S. 104 S.Ct. 2052. if omitted). (quotation 104 S.Ct. 2039 performance deficient, counsel’s it is “ right necessary The right counsel means ‘the to consider whether the defi- ” performance effective assistance of counsel.’ cient prejudiced the defense. McMann, (quoting Id. 771 n. U.S. at Id. 1441). 14, 90 S.Ct. That is because the Lockhart, 52, 58, In Hill v. 474 U.S.

text of the Sixth Amendment itself sug- (1985), 88 L.Ed.2d 203 the Su- gests that the accused must receive “Assis- preme two-part Court held that “the tance,” and that assistance must “for be v. Washington Strickland test applies to his defence.” Id. The Court has challenges guilty pleas based on ineffec- thus stated that counsel does not provide tive assistance of counsel.” The Court ” ‘Assistance,’ “actual it is a violation of the explained that guilty “[i]n context of guarantee provided by the Sixth Amend- pleas, the first half of the Strickland v. Otherwise, ment. Id. the requirement of Washington nothing test is more than a “sham,” counsel would meaning be mere restatement of the standard of attorney nothing more than formal compliance with competence already forth in set Tollett v. (citation the Constitution. Id. and internal Henderson ... and McMann v. Richard- omitted). quotations 58-59, son ...Id. 106 S.Ct. 366. The right The to effective assistance of coun- requires McMann standard that counsel’s applies sel to an individual pleading guilty, guilty advice “ connection with a plea be just as it would apply to an individual range ‘within the competence demand- ” electing to stand trial. See attorneys Von Moltke v. ed of in criminal cases.’ Id. Gillies, 708, 721, McMann, 332 U.S. 68 S.Ct. 106 S.Ct. 366 (quoting (1948). 1441). L.Ed. The decision whether short, to U.S. at 90 S.Ct. plead guilty is a fundamental performance decision counsel’s in connection with a Barnes, criminal case. Jones v. guilty plea objec- must meet standards of 745, 751, 103 S.Ct. L.Ed.2d 987 tive reasonableness. Id. at (1983). 366.21 that, briefly 2254(d)(2). I note while we finding would normal- U.S.C. was unrea- affidavit, ly required findings Boyd's be reproduced defer to the of a sonable because issue, state court in full in on factual note stated that he had such deference never here, personally required been informed is not as the offer. state court’s find- ing affidavit admitted he had been Although agree I with Chief Scirica informed trial that, AEDPA, counsel of the initial finding under the factual "was based on an unreasonable determina- Superior appeal type Court on direct light pre- tion of facts in of the evidence finding state court factual to which a federal deference, sented in proceeding.” the state court 28 court must show I note that such

351 minor, or a neither of incompetent deemed Supreme Court It is well-established at here. which is issue has an accused individual precedent to authority to decide whether ultimate bypass to The Commonwealth seeks accept a or not to and whether plead guilty authority adhering to the rule set uniform prosecution. extended plea offer by referring to Sciolla’s diffi- forth above 751, Jones, 103 S.Ct. 3308 U.S. at 463 See Boyd and culty communicating with has the that the defendant (emphasizing to use subjective good intentions fundamental authority to make ultimate A review of mother as “translator.”22 case, including regarding decisions reveals no “communication the case law guilty); Faretta v. Cali- plead to whether problems” exception to the constitutional 2525, 819, 45 806, 95 S.Ct. fornia, 422 U.S. make the rule that the defendant must (1975) (explaining that 562 L.Ed.2d guilty following plead decision whether to to accused the grants Amendment Sixth counsel, consultation with and the direct defense); make his Von right to personal has cited no such case. Commonwealth (stat- Moltke, 332 U.S. at right The defendant’s to make funda whether that the accused must decide ing affecting “objectives mental decisions Strickland, 466 guilty); see also plead to also representation” is well-estab (noting that 104 S.Ct. 2052 U.S. See, e.g., circuit. lished Weather consult duties to “particular counsel has wax, (stating 77 F.3d at that “funda decisions important with the defendant decisions, mental” like decision informed of keep and to the defendant guilty, directly plead whether to relate to in the course of developments important objectives representation and thus prosecution”). himself) must be made the defendant R. (citing Model Rules of Profl Conduct weighty consequences Because there are 1.2(a) (1994)). v. See also Sistrunk stake, plead the decision whether (3d Cir.1996) Vaughn, 96 F.3d one that intensely personal is an guilty (explaining that the decision whether to only by the defendant. See may be made a fundamental decision re plead guilty is Weatherwax, 77 Virgin Islands v. Gov’t of the defendant himself served (3d Cir.1996) (stating that make). regarding plea process the decisions rel. v. Zelin- by the defen United States ex Caruso “ultimately must be made Cir.1982), [himself]”); sky, defen- Whitfield, People dant (con (1968) was convicted of murder fol- dant Caruso Ill.2d 239 N.E.2d trial, to a term lowing a and was sentenced right accept that the state’s cluding defendant, he later dis- imprisonment. of life When belonged to not to counsel mother). covered that trial counsel failed to advise There could be an or defendant’s prosecutor is him that the had offered exception to that rule an individual communication, may finding well violate only when the is not 22. Such deference is due notwithstanding Pennsylvania's Thus note 5 Profes- unreasonable. Rule 1.6 of Rules of opinion, Conduct, I do distin- in Chief Scirica’s law- provides "[a] which sional guish question deference between the relating yer reveal information shall not due in this due and whether deference is representation of a client unless the client that, However, I am also convinced case. See Pa. Rules consents after consultation....” given the unreasonableness of the state (Confidentiality of Profl Conduct R. 1.6 case, finding deference is in this no factual Information) (2000). opinion on the My is therefore focused due. claim. merits mother, bargain agreed plead guilty, Boyd. if he ed with rather than petition corpus Caruso, filed a for a writ of habeas See 689 F.2d at 438. upon

based ineffective assistance of coun- Second, Boyd consultation with Mrs. granted The district court the sel. writ. would not excuse counsel’s ineffectiveness review, agreed we the On district duty because the of effective representa- court’s conclusion that the failure of coun- accused, directly tion is one owed sel to communicate to prosecu- Caruso the family. not the accused’s If counsel had plea bargain tor’s offer was a violation of concerns about competency, it right his Amendment Sixth to effective would have prudent request been assistance of counsel. stated that We competency duty evaluation. That cannot reject decision to a plea bargain “[t]he be excused upon argu- based after-the-fact offer ... is a decision for the accused to ments about communication difficulties. explained make.” Id. at 438. We Third, right during guilty to counsel attaches counsel did not even communicate plea process right because the to counsel the offer to Mrs. until after he re “ attaches at all ‘critical stages’ of the jected rejected offer, it. Once counsel criminal process,” guilty plea stage and the he reduced the spectrum possibilities of (citation stage.” is such a “critical Id. Boyd. rejecting available The act of omitted). also We stated would “[i]t communicating offer before it to the defen that, case, seem ordinary a failure of dant constitutionally deficient because counsel to advise his client of a plea bar- clearly requires case law that such a gain a gross would constitute deviation fundamental decision must be made accepted professional from standards.” Jones, 751, 103 defendant. See 463 U.S. at Id.23 S.Ct. 3308. Other courts of appeals have held the Each one of those actions would be same. In Blaylock, United States v. 20 enough to find that performance counsel’s (9th Cir.1994), the Court failed to meet constitutional standards. Appeals of for the Ninth Circuit collected here, But the constitutional ineffectiveness cases from five agreeing other circuits deeper. runs even Specifically, Sciolla defense counsel’s failure to communicate to never counseled in connection with the accused the existence a plea bargain guilty plea; he never informed offer, as well to advise the failure potential his sentencing exposure under client options available and conse- the statute and the sentencing guidelines, quences offer, such an constitutes inef- and he never gave Boyd meaningful advice fective assistance counsel. about the pros and cons of option— each case, In Boyd’s provided Sciolla ineffec- offer, plea bargain open guilty tive assistance of ways. counsel three plea, or the trial. First, there dispute is no that Sciolla did We have held that counsel must reason- not communicate to directly the ably inform a defendant regarding po- Commonwealth’s offer. Because sentencing tential exposure and the vari- defendant’s regarding decisions a guilty options ous a defendant inherently personal ones, are faces awas gross bargaining deviation from accepted professional stage of a criminal case. standards for counsel to have communicat- v. Day, United States defaulted, Ultimately, durally the court remanded to the dis- an issue that necessitated a findings regarding trict court factual prejudice. determination of cause and Caru- so, plea bargaining whether the proce- claim was 689 F.2d at 444. Cir.1992), that a course of conduct facially we held valid undertaken counsel. assistance of counsel Id. at claim of ineffective 1436-37. presented by Day’s allega- defendant

was Strickland, In the that, although his counsel told him tion “pointed ‘[prevailing practice norms of prose- extended plea about a offer the as reflected in American Bar Association cutor, him did not counsel about the he guides determining standards’ ‘to what of the United States Sen- potential effect ” Keane, is reasonable.’ Boria 99 F.3d Guidelines, tencing nor did he explain the (2d Cir.1996) Strickland, (citing mandatory exposure. maximum sentence 2052). at 466 U.S. 104 S.Ct. Accord- Day that the failure to counsel him argued ing to American Bar Association’s options and potential sentencing about his standard, lawyer in a defense criminal “[a] exposure constituted sub-standard assis- has the duty case to advise his client fully Day tance. al- agreed We what particular plea on whether a to a charge true, leged he would have made a appears to be desirable.” See id. (empha- constitutionally per- showing of deficient omitted) sis (citing Model Code Profl explained 42. We formance. Id. at (1992)). 7-7 Responsibility EC per- right to “a has the make a rea- defendant formance required of defense counsel is sonably informed decision whether to ac- merely not telling the client there ais Hill, at cept (citing offer.” Id. plea plea bargain telling offer or even client 56-57, 366; 106 S.Ct. U.S. at Von Rather, the nature of the offer. the con- Moltke, (“Pri- at stitutionally required performance is that rely or to trial an accused entitled to complete conjunction disclosure with make an upon independent counsel to his regarding full advice and counsel facts, circumstances, examination of the potential sentencing exposure, client’s op- and laws involved then to pleadings tions regarding plea bargains, po- as to opinion plea informed what his consequences respect tential to each entered.”)). in that should be Included option. knowledge regarding informed decision is sentencing exposure case, In comparative be- in addition to not communi- all, Sciolla, options. Day, tween accused’s various cating the offer to at like therefore 969 F.2d at 43. We remanded to lawyer Day, the defense did counsel evidentiary an the district court to conduct advantages about disadvan- hearing. Id. at 47. offer, compared tages or how options entering open plea or Weatherwax, As explained we Thus, Boyd in no going posi- trial. requirement counsel con- reasonably tion to informed make deci- client concerning sult with his or her is- regarding sion because counsel sues on the client has final word which failed to advise him about the statutory to assist enables the accused with his or sentence, sentencing guide- maximum her own We stated that “the defense. lines, and options differences between the concerning client’s and desires views he faced. never told Counsel best be followed are relevant course to greater could receive a sentence than four must considerations that be evaluated and eight years imprisonment. App. See by counsel.” taken into account Id. We result, testified, As 45^6. as Sciolla promotes strong noted that consultation no, little, relationship, participation attorney-client and enables decision-making process regarding the representa- to seek alternative accused process. at 46. agree App. tion if does not with the he or she sum, Boyd’s performance The question counsel’s arises what constitutes a range competence was below the de- probability”? “reasonable have ex- We attorneys in criminal cases. manded that plained require Strickland “does not was, effect, complete a lack of There certainty preponderance or even a respect to the meaningful assistance with evidence that the outcome would have guilty plea process. Pennsylvania Su- been different with effective assistance of perior conclusion that “counsel’s Court’s counsel; requires only ‘reasonable [a] ineffective,” actions cannot be deemed probability....’” Day, 969 F.2d at 45 n. 8 88, App. applica- at was an unreasonable Strickland, 693-94, (citing 466 U.S. at law, clearly tion of established federal Hill, 2052; at S.Ct. U.S. 106 S.Ct. Court, by the Supreme determined be- 366). standard, relatively It is a low given Superior cause it was based on the Court’s necessary that it is not prove to even it is Boyd’s that “counsel him finding informed likely “more than not” that the outcome the plea bargain,” of the existence of first would be different. App. at which itself was an unreason- This court has held when a defen- light able determination of the facts in dant accepted plea would have otherwise presented Superior the evidence to the offer, bargain prejudice there is Court. the mere fact that opportunity lost that if s/he any Hardiman avoids comment on plea bargain the offer signifi- included a analysis the above ineffective- cantly degree lesser of punishment than ness of counsel claim his conclusion that Caruso, the sentence received. In we held hearing was not entitled to a alleged that Caruso had court, prejudice because Op. seq., federal Hardiman at 374 et he significant and that claimed he received a proof state court offer of prejudice. was insufficient to establish Id. additional term of imprisonment resulting I Boyd’s showing relating consider from trial counsel’s failure to communicate prejudice issue first. plea offer Caruso would have ac- cepted. 689 F.2d at 438. We considered Prejudice 2. (1) two essential factors: whether Caruso stated, As the Court has preju- would accepted plea bargain have of- requires showing dice that “there ais (2) fer, and whether Caruso received a that, probability reasonable but for coun- significantly greater sentence than that errors, unprofessional sel’s the result of which plea bargain. was offered Id. proceeding would have been different.” factors, In applying those we concluded Strickland, at 466 U.S. 104 S.Ct. 2052. allege[d] requisite “Caruso preju- requirement applied, This has been inter dice, significant additional term of im- alia, in cases such as this where the prisonment that resulted from counsel’s guilty is ineffectiveness in the plea context. failure to plea communicate the Hill, 366; See 474 U.S. at 106 S.Ct. accepted.” which would have Id. Caruso, 689 F.2d at 438. in- such an rejected government’s argument We stance, “then, course, prejudice that, because Caruso received a fair trial whether, question is absent the ineffective subsequent to his counsel’s failure to in- assistance,” there is a probabil- reasonable offer, form him of a fair trial ity that the accepted defendant would have deprivation. remedied the 689 F.2d at 438 bargain Wayne offer. See 5 R. Mitchell, (citing Rose v. al., U.S. 557- LaFave et Criminal Procedure 21.3(b), ed.1999) 64, (1979) at 125-26 61 L.Ed.2d 739 (hereinafter “LaFave”). (rejecting argument state’s that habeas re- Amendment, Caruso, at Fifth see 689 F.2d foreclosed where claimed be view should Rose, 557-64, not affect determination (citing did error argu- that such an explained guilt)). 2993), We has shown prejudice plea bargaining in the untenable ment was probability” a “reasonable there is subsequent proceeding context because constitutionally performance deficient fact that the defen- remedy could in an than that resulted outcome different present opportunity denied the dant was occurred if counsel had which would have Al- judge. Id. bargain to Day, been effective. See prejudice, we presume we did not though Gordon, In United States that, showing made a if Caruso did find (2d Cir.1998), for Appeals the Court offer, the accepted plea have that he would the Second Circuit addressed similar is- him opportunity prejudiced of that the loss Gordon, subsequently subjected received a though he sue. whose offenses even analysis pre- came close to months, fair trial. Our imprisonment him to for 262-327 a require- but created suming prejudice by govern- counsel that was not told the that he petitioner prove that ment plea ment had made a offer somewhere in original plea of- accepted have would months. range of 84-115 Id. 377- fer. attorney 78. Nor did Gordon’s counsel him the difference between the in about again Day, this issue considered

We rejected plea offer that Day, range who and 969 F.2d at where years imprisonment and plea potential offer of five maximum sentence. Id. ultimately received a sentence of almost Circuit held that the rele- Second years imprisonment, alleged twenty-two inquiry prejudice vant as to because of him failed to tell what his that trial counsel counsel’s ineffectiveness was whether was under the sen- sentencing exposure probability” there was a “reasonable statutory tencing guidelines and under the outcome would have been different had Day’s held that penalty. maximum We accurately Gordon been informed of his true, showing if created a allegations, so, exposure. If sentencing Id. 380-81. rejected the district court’s prejudice. We prejudice. The Second Gordon suffered holding Day that because received subse- did, on the fact Circuit held based trial, not quent fair he could have suffered “did not have accurate infor- Gordon at 44. reiterated our prejudice. Id. We upon which to make his decision to mation fair holding subsequent in Caruso that a negotiations go pursue plea further remedy trial does not the harm caused to a In reaching trial.” Id. at 380. this deci- deprived by when he is counsel defendant (1) sion, the court relied on two factors: accept a opportunity plea bargain statement that he would have bargain sentenced with that Gordon’s be place. bargain Id. accepted plea coun- him sel told him about it and counseled that the Day, explained In we basis respect potential sentencing to his that “the Amend- our conclusion was Sixth (2) (i.e., evidence), subjective exposure assistance of coun- right ment to effective presence “objective evidence” Fifth guarantees more than the sel great disparity form of the between Gor- right to a fair trial.” Id. at Amendment sentencing exposure don’s actual under the words, plea bargaining in the 45. In other exposure rep- and the sentence Guidelines constitutionally context even counsel’s counsel. Id. at 380- resented Gordon’s not affect the deter- deficient conduct does guilt under mination of the accused’s “essentially

Coincidentally, strikingly presumed preju- a case similar courts have recently merely based on plea has been decided dice the fact that Court of South Carolina. Da- counsel failed to communicate a of- Carolina, fer,” while “other vie v. South 381 S.C. state courts have found (2009), pursuant prejudice on the petitioner, S.E.2d 416 based defendant’s self- guilty serving plea agreement, pled to a to various statements he would have ac- offenses, endangerment, cepted cocaine child offer had he been made him judge traffic offenses. The sentenced aware of it.” Id. at 421-22. The Court years imprisonment to an of 27 that other aggregate applied noted courts have Instead, appeal. seemingly which did not burden that is higher and re- objective Applica- quires preju- he filed a Post Conviction Relief evidence to show (PCR) dice, i.e., asking tion the court only to vacate his that defendant would alia, guilty plea ground, accepted on the inter have the offer but that he would he was denied effective assistance of coun- have received a lesser sentence than that sel because his counsel had failed to which he received. agreement inform him a plea of written in opted join The Court to those courts 15-year which the state offered a sentence case-by-case analysis looking use a exchange in plea pend- for his to all of the strictly at the facts of each case. The ing charges. Plea counsel testified he was that it always necessary Court noted is not unaware of the state’s offer until after it a objective for defendant to offer evidence expired because he was relocating his a claim support prejudice. to of actual It relief, office. The PCR court denied find- proven concluded that Davie had that he ing petitioner knowingly and volun- prejudiced by plea was counsel’s deficient tarily pled guilty fully because he was performance and that in the difference advised of rights waiving by he was petitioner sentence plea received and the

pleading guilty and understood the under- proof offer is prejudice. It noted that lying charges. both the state counsel and counsel Court of acknowledged South Carolina that the originally of- reversed, applying analysis an 15-year that was fered a exchange sentence in comparable to the Second in guilty plea, Circuit’s Gor- that plea counsel failed to don. Although Davie, the Court stated communicate the offer to that both gives great deference to post-convic- plea counsel and Davie testified that had findings tion relief court’s of fact and con- this offer been communicated Davie would law, clusions of it adopted the rule “that have accepted plea agreement, convey counsel’s failure to a plea offer, accepted original had he performance ...,” constitutes deficient a significantly would have received a lesser rule that would be “consistent with the sentence than 27-year sentenced that majority of other juris- imposed. state and federal was dictions,” citing in opin- excess of 20 other Boyd’s situation precisely fits into the ions. Id. at 420. The Court held that analysis applied by the South Carolina Su- even if counsel was not aware of the preme Court. The Commonwealth has not offer he objecting was deficient denied that there was a offer of 4-10 the plea hearing. years, Sciolla admitted he failed to commu-

The Court then turned to the Boyd, Boyd issue be- nicate the offer to testified he us, fore prejudiced was accepted would have it had he known of (which performance. this deficient The Court the offer Sciolla never counseled Strickland, about), following noted that him some state and had he accepted it he grant Boyd an evidentiary lower discretion significantly received a have would hearing, actually required it was years do than the 8-22 sentence sentence so. imposed. Sain, stated, In govern- Townsend v. 312- Day, “[t]he In this (1963), that al- 9 L.Ed.2d Day’s contention ment mocks involving case standard for guilty proper when he de plead he did not though termining grant deny whether to an exposure that his sentence believed evidentiary hearing in habeas cor years, he would have federal eleven approximately pus proceedings, he would the United States Su had he known that pleaded guilty twenty-two preme following Court announced the rule: of almost receive sentence in dispute, the contention so “Where the facts are the feder do not find years. We corpus dismissed al court habeas must hold properly that it was implausible evidentiary hearing applicant do not find it habeas hearing.... [W]e without evidentiary not receive a full and fair young that a would did at all man implausible court, hearing extra in a state either at the time risking over 3800 think twice before proceeding. the chance of of the trial or a collateral jail just gain days In evidentiary that he other words a federal hear of a crime that he knew acquittal ing required 969 F.2d at 45. unless the state-court trier Day, had committed.” hearing reliably of fact has after full case, failure to Day, Boyd’s as in (emphasis found the relevant facts.” add guilty plea led to a accept proffered ed). The specific Court enumerated six offered, substantially higher than sentence in a circumstances which federal habeas i.e., imprison- months a sentence of 84-240 grant evidentiary court an hearing: must (or the offered 48-96 compared ment “(1) dispute the merits of the factual were 48-120) a imprisonment. months Such (2) in hearing; not resolved the state precedent, under our finding is sufficient fairly state factual determination is not Gordon, Davie, preju- to demonstrate (3) whole; by a supported the record as dice. fact-finding by procedure employed adequate the state court was not to afford Right Hearing to a 3. (4) hearing; a full and fair there is a Judge Hardiman’s dis- I turn next to allegation newly discovered substantial hearing held approval evidentiary (5) evidence; the material facts were not Magistrate Judge and the evi- before adequately developed at the state-court first produced opportu- dence there —the (6) hearing; any appears for reason it given produce the rele- nity Boyd was that the state trier of fact did not afford of counsel’s failure to inform vant facts applicant a full and fair fact the habeas to coun- him of the offer and failure 313, hearing.” 745. Id. 83 S.Ct. With guilty plea. This regarding sel him (5), respect to scenario the Court reasoned right evidentiary to an hear- issue of the if, hearing necessary that a federal is for corpus great in cases is of ing habeas any reason “not attributable to the inex Al- courts. importance to district neglect petitioner,” cusable crucial evi in speaks law terms of though the case the federal claim was pertinent dence court, it hearing equally in the district is 317, Id. at 83 S.Ct. 745. developed. not .magis- hearing to a before applicable evidentiary hearing is not manda matter is re- If judge trate to whom the all tory, explained, other judge. thorough “[i]n A Court ferred a district are in cases where the material facts dis suggests case law analysis of the relevant in hearing of such a pute, holding court have only not did the federal 358 judge.” question of the district the limited

the discretion Id. “whether deliber 318, Importantly, bypass the Court ate standard is the correct 83 S.Ct. stan every excusing petitioner’s case district dard for “[i]n stressed habeas [the only power, develop constrained failure to a material fact in a state- has the court] discretion, 5, proceedings.” his sound to receive evidence Id. at 112 S.Ct. bearing upon applicant’s replaced constitutional 1715. The Court the “deliberate opportunity peti bypass” claim.” for a standard with prej Id.24 the “cause and tioner, Boyd, determining such as to submit an affidavit udice” standard for “full equate petitioner’s develop does not with the and fair failure to in facts evidentiary hearing” proceedings referred to in Town state-court should be excused. 11-12, 112 send. Id. at S.Ct. 1715.25 “[following This court has stated that considered the Keeney We effect of in Cristin, generally recognized stated, it was “Keeney Townsend where we never plenary authority applied district courts had ... to all requests evidentiary evidentiary hearings hearings conduct their dis habeas actions. The Court cretion, only by holding only constrained those six occa described its as relevant when hearing in which a required.” sions to develop’ ‘fail[ed] the facts Brennan, (3d v. 414 Cristin 281 F.3d of his habeas claim in court.” Cris- Cir.2002) tin, (alteration (citing Campbell Vaughn, 281 F.3d at 415 in original) (3d (citation Cir.2000), denied, omitted). words, F.3d cert. In other holding Keeney U.S. 148 L.Ed.2d was limited to “circum- (2001); Beyer, Hakeem v. stances which the material facts were Cir.1993); 770-71 developed Keller v. Pet in state court due to the sock, (3d Cir.1988)). petitioner.” fault of the Id. later, thirty years

Almost 420, 434, v. Taylor, Williams Townsend, partially overruled (2000), albeit 146 L.Ed.2d 435 not on this In Keeney Tamayo- AEDPA, issue. v. passage decided after the of 1, Reyes, 1715, 112 S.Ct. Supreme explained 118 Court open- “the (1992), 2254(e)(2)26 § L.Ed.2d 318 the Court ing addressed clause of codifies Kee- great 24. Townsend afforded discretion to the 26. The pro- relevant section of the statute grant district courts to determine whether to vides: evidentiary hearing theory an on the (2) applicant develop If the has failed to judges intimately "federal district are more pro- factual basis aof claim in State court justice, with familiar state criminal ceedings, the court shall not hold an evi- fact, we, dentiary hearing the trial of are than and to their on the claim unless the applicant sound very large discretion must be left in shows that'— (A) part the administration the claim relies on— of federal habeas cor- (i) law, 313, pus.” a new rule of 372 U.S. at constitutional made 83 S.Ct. 745. The by retroactive to "every cases on collateral review Court had reason to be confident that Court, previously that was un- judges, federal district mindful of their deli- available; or proper cate role in the maintenance of feder- (ii) predicate a factual relations, that could not have al-state will not abuse that discre- previously through discovered 318, been the ex- tion.” Id. at 83 S.Ct. 745. diligence; ercise of due 5, Keeney, 25. See 504 U.S. at 112 S.Ct. 1715 (B) underlying the facts the claim would be (overruling only respect”); Townsend "in this sufficient to establish clear and convinc- 18, (stating id. at see also 112 S.Ct. 1715 ing evidence that but for constitutional er- "[tjhis course, holding, directly ror, overrules a no reasonable factfinder would have J., (O’Connor, portion of Townsend applicant dis- guilty underlying found the senting). offense.

359 434, 1479), diligence, so 120 then standard S.Ct. the Townsend ney’s threshold have had to sat- who would prisoners applies, rule and the district courts have excusing the defi- Keeney’s test for isfy discretion,' requirement, or at least the record ciency prior in the state-court See, grant evidentiary hearing. e.g., an controlled AEDPA are now Horn, (3d Taylor v. 504 F.3d 416 Cir. 2254(e)(2).” that, clarified § The Court 2007); Cristin, 415; 281 F.3d at Campbell, opening Keeney, “[b]y the terms its 287; Morton, 209 F.3d at Love v. F.3d 2254(e)(2)] only applies pris- [§ clause (3d Cir.1997); see also Hertz & develop have ‘failedto the factu- oners who (“Even 20.1b, § Liebman at 804 after proceed- a claim in al basis of State mandatory-hear AEDPA ... Townsend’s ” ings.’ Id. at 120 S.Ct. 1479. The ing delegation standards —and its to dis elucidated, opening “[u]nder trict courts of broad discretion to hold 2254(e)(2), develop § a failure to clause of evidentiary hearings that are not mandat factual basis of a claim is not estab- govern ed—continues to all situations save diligence, there is lack of lished unless in which petitioner’s procedural those fault, pris- attributable to the greater some default accounts for the state courts’ fail prisoner’s counsel.” Id. at oner or facts.”) develop ure to the material For a full discussion of the requirement of a diligence, concept As to the the Court evidentiary hearing, federal see Goldblum continued, question is not whether “[t]he Klem, Cir.2007) 243-52 the facts could have been discovered but (Poliak, J., case, dissenting). In this be prisoner diligent whether the instead cause did not “fail” to develop the his efforts.” Id. S.Ct. 1479. factual record in state court within the petitioner It does not matter whether the 2254(e)(2), Williams, meaning of see successful; rather, could have been what 1479; Cristin, U.S. at whether the made a matters is the District Court was not attempt pursue reasonable his/her “Diligence state court. Id. will from prohibited granting evidentiary claims prisoner, in the usual case that the require hearing. minimum, evidentiary hearing at a seek an & Liebman treatise cautions Hertz prescribed by in state court in the manner “reviewing federal courts have some- state law.” Id. at 120 S.Ct. 1479. If times confused the standard Townsend diligence no lack of on the

there has been (as to a ‘right hearing partially modi- part petitioner, then he has not “failed by Keeney Tamayo-Reyes fied v. and 2254(e)(2)’s § develop” the facts under 2254(e)(2)) AEDPA’s section with the stat- clause, opening and “he will be excused utory determining standard for the effect showing compliance from with the balance (as factfindings of state modified AED- requirements.” of the subsection’s Id. 2254(d)(2) 2254(e)(1)).” PA’s sections and words, In other if a seeks and 20.2d, § 1 Hertz & Liebman at 831. A- court, hearing is denied a in state there is though inquiries overlap, they the two are 2254(e)(2) § nothing in that bars the dis- may distinct issues. That the state court trict from a granting hearing. court See finding pre- have made a of fact does not 436-37, at If peti- id. 120 S.Ct. 1479. requirement hearing clude the of a in the “group tioner is not in the that ‘wouldhave ” Cristin, test,’ hearing federal habeas court if no satisfy Keeney’s had to 281 Williams, (quoting granted at 415 at in the state court. F.3d U.S. 2254(e). §

28 U.S.C. Here, required dentiary hearing meaningful, would the District Court was be evidentiary hearing an because grant that a hearing poten- new would have the ’(1) facts that would petition alleges petitioner’s tial to advance the claim.” Id. (2) proven; to relief if entitle (citations omitted). quotations and internal (3) frivolous; claims are not and fact-based Supreme Court has never disa- previously factual claims were vowed or retreated from its decision in subject hearing of a full and fair Townsend v. Sain. The Court cited Town- beyond for the control state courts reasons —Bush, send in Boumediene v. U.S. 20.1b, § lawyer. and his Id. at -, -, 2229, 2270, 128 S.Ct. evidentiary an 804-06. The absence of (2008), placed L.Ed.2d the constitu- hearing Boyd’s cannot be at feet. laid right corpus tional to habeas above even denied, sought, counsel and was an Congress’ power to emasculate its essen- evidentiary hearing on his ineffectiveness features, tial right such as the to a hear- claim in assistance of counsel his direct Moreover, ing. Court cited appeal, App. subsequent at and in his proposition prior Townsend petition, and that denial of a hear- PCRA AEDPA grant the decision whether to an ing appeal Superior was affirmed on evidentiary decision, 72-73, hearing was left to the sound App. Court its 2005 “[tjhat responsible courts, the same court earlier for the discretion of the district significant misstatement of fact in its 2002 changed.” basic rule has not Schriro decision. therefore met the dili- 465, 473, Landrigan, 550 U.S. Williams; gence standard enunciated in (2007) (emphasis 167 L.Ed.2d 836 thus, responsible he was not for the lack of added). court, post-AEDPA This hearing, and AEDPA does not limit the case, applied Townsend as the relevant grant federal court’s discretion to hear- legal determining standard for whether ing in case. It therefore not this evidentiary hearing required is in a post- error for the granted federal to have AEDPA era. See Richardson v. Pa. Bd. Boyd an evidentiary hearing. Parole, Prob. & Even if it mandatory, were not there is Cir.2005). question no that under the relevant Su evidentiary entitlement to an AEDPA, preme precedent hearing supported by years precedent is District grant Court had discretion to See, Goldblum, court. e.g., Boyd a hearing. See Schriro v. Landri at 221 (emphasizing F.3d that decision to gan, 465, 127 1933, 1939, 167 grant evidentiary hearing should be “left (2007). recently L.Ed.2d 836 This court courts”) to the sound discretion of district stated that if a petitioner’s factual record (citation omitted); quotations and internal insufficiently developed in the state Richardson, 423 (applying own,” court “through no fault of his legal Townsend as relevant standard for 2254(e)(2) preclude does not the district determining evidentiary hearing granting hearing. court from Goldblum era); in required post-AEDPA is Marshall Klem, (3d Cir.2007). 204, v. 222 510 F.3d (3d Hendricks, 36, v. 307 F.3d 117 Cir. “In applicant cases where an for federal 2002) (applying require Townsend to a habeas relief is not obtaining barred from hearing where district court to hold failed evidentiary an hearing by 28 U.S.C. era); in post-AEDPA one Campbell, 209 2254(e)(2), § grant the decision to such a (stating per- F.3d at 286-87 that AEDPA hearing in the rests discretion of the dis evidentiary hearing trict court.... mits in federal court if exercising that discre tion, diligently courts focus on whether a new evi- petitioner sought develop to fac-

361 only evidentiary in hearing for his claim in state court but this case that tual basis hearing a opportunity for was denied Magistrate was held Judge, which court); Love, Yohn v. 76 F.3d by the state in 4 supra. significant is set out note This (3d Cir.1996) (stating gener- n. 12 516 directly Pennsyl- evidence contradicts cases where an evidentia- “[i]n al rule Superior vania Court’s determination that ... hearing mandatory is not the hold- ry trial Boyd counsel informed of the exis- hearing a is left to the discretion of ing of tence of the offer. This case there- Lehman, court”); v. 925 the district Lesko directly fore falls exception within the to (3d Cir.1991) (stating that F.2d requirement AEDPA’s of deference be- evidentiary district court “must hold cause the state court determination “was hearing, applicant if the habeas did not based on an unreasonable determination of evidentiary hearing fair receive a full and in light the facts of the evidence presented court”) (citation and internal in a state proceeding.” the state court 28 U.S.C. omitted); v. quotations United States 2254(d)(2). (3d Dawson, F.2d 927-28 Cir. (vacat- Keller, 1988); 853 F.2d 1129-30 Judge goes length Hardiman on at to petition for ing district court’s denial why, law, explain Pennsylvania under an evi- corpus remanding habeas Pennsylvania courts were not required to dentiary hearing required which was grant hearing request because hearing had held in state where no been developed could have the factual basis of Mayber- disputed); courts and facts were by submitting his claim more detailed affi- (3d Petsock, ry v. 821 F.2d Cir. Therefore, davits. he concludes that the 1987) (stating general rule “where prohibited court was holding federal from if dispute are material facts in which there only hearing Boyd’s peti- ever held on petitioner entitle a to relief proven would law, tion. This has no basis and is petitioner and the has not been afforded supported by precedent. not evidentiary hearing full and fair court, time trial or in a either at the Assuming Pennsylvania courts had proceeding, collateral a federal habeas option deny Boyd’s request for a evidentiary hearing”); court must hold an mean, hearing, that does not cannot Tard, v. 741 F.2d Cir. Bibby mean, that the federal court was barred 1984) (“An evidentiary hearing required holding hearing. from The discretion is, dispute if of material fact-that there is a to federal district afforded courts hold true, which, if peti- facts would entitle the hearing is cornerstone of tioner to relief-and the was corpus precedent going right up habeas evidentiary hearing a full and fair afforded the Schriro case in 2007. Federal law courts.”); in the state States ex rel. United requires, permits, at a minimum a hear- Jersey, McNair v. New this, ing in a case such as even state law (3d Cir.1974) required in (hearing does not. district court where material facts not ade- developed at state quately hearing). here is issue not whether Carmichael, See also United States would have succeeded his habeas claim- (2d Cir.2000) (hearing position it is Hardiman’s necessary to determine whether defendant evidentiary was not entitled the one accepted plea would have offer and wheth- hearing he received in federal court. it). approved er trial court would have clearly diligent, only recog- issue in as relevant to the denial nized Williams importance evidentiary of an hear- by testimony hearing. at the of a court ing is illustrated the state that, if alleges proved, er facts entitle tenor of the footnotes Despite the (2) comments, relief; suggest I party petitioner’s Hardiman’s the the Judge Judge focus must be on proper summary that the allegations factual survive dis- through- repeated Hardiman’s conclusion they palpably missal because are not to an evi- that was not entitled out false; patently incredible or frivolous or develop further the dentiary hearing to (3) beyond for reasons the control of glide cannot over the factual record. We petitioner pétitioner’s the and the attor- by dangerous process effect of the favored attorney ney (assuming the rendered any preclude Hardiman. It could assistance), constitutionally satisfactory evidentiary hearing at all in a habeas case previously the factual issues were not though the state courts had declined even subject fair hearing of full and for an evi- requests all or, courts if a full fair the state dentiary hearing, they Boyd’s as did in held, hearing hearing court did contrast, case. In stark factfindings all not result resolve recognized significance of an Court has factual controlling issues. evidentiary hearing corpus in habeas Liebman, Corpus Hertz & Federal Habeas cases. Procedure, Practice and 20.3a infra 461, 474, Wingo Wedding, In 418 U.S. added). All three (emphasis are conditions (1974), 94 S.Ct. L.Ed.2d 879 mandatory satisfied here. But whether stated, not, surely the federal the dis- experienced lawyers “To is common- evidentiary hearing. cretion to direct an place that the outcome of a lawsuit—and might reasonably inquire One what rights hence the vindication legal of —(cid:127) Judge Hardiman dangerous finds depends more often on how the factfin- only evidentiary hearing Boyd, afforded to than on a appraises disput- der the facts is, Magistrate Judge. before the It interpre- ed construction of statute or all, only hearing after at that that Sciolla precedents. tation of a line of Thus the Boyd directly admitted that he did not tell procedures by which the facts of the offer, about Commonwealth’s impor- case are determined assume an rejected that offer even before he told fully great validity tance as the mother, Boyd’s that he did not counsel applied.” substantive rule of law to be Pennsylvania Sentencing about the Randall, (quoting Speiser v. Guidelines, and that he not tell did (1958)). 1332, 2 L.Ed.2d 1460 potential about the sentence he could re- Surely, Judge Hardiman would not supply ceive. Sciolla’s admissions the ful- question the relevance Justice Bren- crum of claim Sixth Amendment importance nari’s comments about the counsel, ineffective assistance which is developing merely they the facts because subject corpus of the habeas passage were written before the of AED- - before us.27 respected PA. The corpus habeas com- goal requiring mentators Hertz and Liebman have com- What is served AEDPA, mented that even after federal habeas court to don blinders to the subject evidentiary relevant facts were never the hearing mandatory [A]n (1) petition- inquiry by Pennsylvania three conditions are met: A courts? evidentiary 27. When counsel told this court that at the hear- Sciolla’s admissions Boyd’s guilty plea knowing ing clarify Boyd’s guilty plea and volun- was not tary, may fully appreciated knowing, adequate she not have as it was entered without implications of that statement under Tollett. assistance of counsel. I duplication no of effort would have directed the matter be case there is this in a occasionally to the court for as one encounters remanded state its deter- such Judge although And proceeding. remedy. habeas appropriate mination of the “that knew states as a fact Hardiman my I maintain Although adherence to yet decided to the initial about I foregoing opinion, believe we have an the discretion of the ‘take his chances with obligation every to make effort to achieve ” comb,’ the record Op. Hardiman in judgment by majority concurred a' of evidentiary hearing before the made at the the en court. banc See Green Tree Fin. where the witnesses Magistrate Judge, Bazzle, 444, 455, Corp. v. subject to the Commonwealth’s were (2003) (Ste- 156 L.Ed.2d 414 cross-examination, that was not the shows vens, J., concurring judgment). For Magistrate Judge all. And the fact at my that purpose, and because -viewof what contrary. found to the I regard principal legal pre- as the issue evidentiary and the corpus, Habeas sented, application i.e. the of Strickland to entitled, petitioner is sub- hearing to which Boyd’s claim of ineffective assistance of ject petition- claim of the the constitutional rejection counsel and the of the reliance light of federal review. The er to the Judge opinion Hardiman’s on Tollett and proposed by Judge Hardiman blinders this, Mabry in situations such as comports the federal court limited to would have view, I Chief Scirica’s concur in darkly. Para- seeing through glass judgment for the court. words of Elea- phrasing unforgettable Roosevelt, it is better to a candle light nor D. Coda than to curse the darkness. In reviewing appeal, the issues on this we cannot overlook Remedy C. recently has im- re-confirmed the view, my In we should affirm the Dis- portance protection of the of habeas cor- has trict Court’s determination and, pus, particular, judicial need prej- both ineffective assistance and shown review connection with constitution- udice. al safeguard. The Court stated that the The District Court directed “protection privilege for the of cor- habeas prior reinstate its offer. Commonwealth pus safeguards was one of few liber- Davie, noting Carolina Court in South that, in a ty specified Constitution at the there was no evidence that ex- outset, Bill Rights. sys- had no In the pressed proceed a desire to to trial rather conceived tem Framers the writ than rem- plead guilty, imposed different centrality....” had a Boumediene edy. compel It that it cannot stated Bush, U.S.-, 2229, 2244, to reinstate or the Circuit Court (2008). L.Ed.2d That was because

judge accept original 15-year plea Framers viewed freedom from un- “[t]he Instead, it for a offer. remanded ease lawful restraint as a precept fundamental sentencing hearing, new but directed the liberty, they understood the writ of judge state and the Circuit Court to take corpus habeas as a vital instrument prior 15-year offer. into consideration secure that freedom.” Id. majority light disposition of the Nevertheless, the Court stated that findings court to remand for related uncontroversial, do consider it how- merits, “[w]e remedy I do not discuss the ever, that privilege corpus I note habeas ordered the District Court. court, merely writing prisoner meaningful op- that if I were for the entitles the Henderson, 258, portunity being 1602, to demonstrate he is 411 U.S. 93 S.Ct. pursuant application held to the erroneous (1973), Mabry 36 L.Ed.2d 235 and v. John interpretation of relevant law.” Id. at son, 467 U.S. 104 S.Ct. (citation quotation and internal marks (1984), L.Ed.2d Boyd’s guilty plea— omitted). Indeed, necessary “the scope of candidly which he knowing, admits was in part depends upon habeas review intelligent, voluntary superseded and and — ” rigor any proceedings.... earlier Id. any rendered immaterial ineffective assis Townsend, Citing at 2268. 372 U.S. at Second, tance of that preceded counsel it. 83 S.Ct. the Court noted even assuming that Tollett and Mabry do “[fjederal long habeas petitioners have had apply, Boyd prejudice cannot show the means to supplement the record on under Washington, Strickland v. review, in postconviction even habeas (1984). 80 L.Ed.2d 674 setting.” Id. 2270. The Court stressed (in detainee) case, petitioner that a I. must be able present reasonably avail- In the summer of 2000 and one month court, able evidence to a corpus habeas see birthday, before his twentieth Boyd was id. at in noting post-trial living at home presentation parents habeas cases with his evidence is when he only limited where a habeas pass has decided to by drinking the time in a already opportunity “full and fair to park with Carpenter, Raymond William develop the factual predicate of his claims” Jones, and a few other friends. In a fit of or failed to diligence doing exercise in so. bravado, wagered Jones that he could Although Id. the case before us does not drink ten shots of alcohol ten minutes. Guantanamo, involve detainees in both the Boyd After Carpenter pay refused to Supreme holding Court’s and its language Jones for what can best be described as a are instructive. Pyrrhic victory, argument ensued and a short time Boyd later retrieved an alumi- HARDIMAN, Judge, Circuit dissenting num bat and beat Jones with it. lay Jones part, in an opinion in which Judges bleeding unconscious and ground on the join, CHAGARES and JORDAN for some time before and Carpenter Judges which join BARRY and SMITH for took him to hospital. Jones suffered all except Part V. permanent injuries brain which left him All members of the sitting en confined to a wheelchair. initially agree banc that the District Court correct- attempted to conceal his role in the crime ly determined that claim was not by hiding the baseball fabricating bat and procedurally defaulted. As an alibi. days attack, Five after the counsel, of ineffective assistance of police. confessed to however, judges agree nine that the Dis- charged Boyd trict Commonwealth Court erred when it conditionally granted Boyd murder, attempted assault, a writ of corpus. aggravated habeas Although agree I assault, that the writ simple should not endangerment, reckless issued, have I respectfully must dissent tampering crime, with evidence of a from the six-judge majority which holds possession of an instrument of crime. that the requires District Court’s error a Boyd’s parents posted bail and hired remand. friend, family attorney Guy Sciolla, to rep- resent their son. During pretrial should be denied habeas relief for independent First, two phase, reasons. pursuant Commonwealth contacted Sciol- Court’s decisions Tollett la and proposed plea agreement years prison,” App. 159—and con- sentence of 4-8 a recommended included tele- “nothing Seiolla more have imprisonment.28 cluded: could been years of mother, her of informed phoned [Boyd’s] guilty plea to ensure that done it offer, her to communicate and asked this voluntary.” knowing, intelligent was and Boyd’s moth- also advised Boyd. to Seiolla App. 93. unacceptable, and offer was er that appeal Pennsylvania In his direct to the did Boyd tell as much. She her to asked Court, Boyd’s lawyer, Superior second Thus, so, rejected the offer.29 and Seiolla Quinn, argued that trial counsel Thomas accept Boyd himself never was asked (Seiolla) by failing was to dis- ineffective offer, there is no plea initial and reject the accepting cuss the relative merits of approved it or that the trial evidence Quinn plea Commonwealth’s initial offer. of its existence. even aware

was that had communicated asserted Seiolla offer, rejected plea the initial After he plea [Boyd] the initial offer “to and his negotiated a second deal with Seiolla Boyd “accepted and that the ad- parents,” Boyd pursuant to which Commonwealth counsel, rejected plea.” vice of and plea charges open would enter an claim, In App. support Boyd 135. of this of an possession assault and aggravated submitted affidavit which he admit- exchange, of crime. instrument me, through my ted that Seiolla “told prosequi to nolle agreed Commonwealth plea App. mother” of the initial offer. murder, attempted simple charges Boyd validity open did not attack the of his assault, endangerment, and evi- reckless guilty plea, Superior but the Court noted advice, tampering. On Sciolla’s dence Boyd’s “guilty plea nonetheless that offer, Boyd accepted second knowingly, intelligently, and entered vol- aforementioned pleaded guilty to the two untarily.” App. Superior 88. The Court Gary the Honorable S. charges before sentence, judgment finding affirmed the Pleas of of the Court of Common Glazer that that own affidavit conceded he County. Philadelphia offer, initial plea knew about the but “de- later, Judge two months Glazer About cided to take his chances on the discretion Boyd imprisonment to a term of sentenced sentencing.” App. of the court as to 85- Boyd appealed years. of 8-22 Pennsylvania Supreme de- 86. The he opinion a written which Glazer issued nied allocatur. knowing, intelli- Boyd found that entered review, of direct Upon the conclusion voluntary guilty after gent, plea counsel, Sturm, Cheryl filed a Boyd’s third guilty plea, which having signed written Pennsylvania’s challenge collateral under by an extensive oral supplemented (PCRA), 42 PA. Post Conviction Relief Act the de- colloquy. Judge Glazer reviewed seq., 9541 et which colloquy the oral included Ann. tails of Cons.Stat. —which time that Boyd alleged for the first Seiolla Boyd could be sen- an admonition re- provided 12 and a half to ineffective assistance when he “anything up tenced ambiguity 29. There is considerable about plea of this initial offer are 28. The terms disputed. Boyd contends that the offer was what Seiolla when he testified meant year prison sentence to recommend 4-8 Boyd rejected the initial offer. insists insists that the rec- while the Commonwealth rejected that Seiolla the initial offer be- years. Although 4-10 ommended term was Boyd learned of it. The Commonwealth fore agree appeared to the District Court table maintains that the offer was still on the accepted remedy suggests Boyd, its expressed an interest in it. later had characterization. The dis- Commonwealth’s dispute is immaterial as well. This opinion. parity is immaterial to this Magistrate Judge offer without first The recommended that jected the initial argued deny Boyd’s it with him. also the District Court Petition discussing Quinn rendered ineffective assis- it failed on the merits under because by failing present perti- all of the tance Strickland.30 Significantly, appeal. nent facts on direct R, Following the adverse R & filed challenge validity did not of his objections alleged in which he guilty plea. Magistrate Judge “misperceivefd] the na- application, The PCRA court denied [Boyd] claiming ture of claims. is not [his] Boyd’s previously were holding that claims guilty plea knowing, intelligent was 42 Pa. litigated under Ann. Cons.Stat. voluntary.... [Boyd] and does not want to 9543(a)(3) and, holding, § in an alternative Warden, plea.” Boyd take back the v. Civ. Boyd’s against that claim Seiolla explained (E.D.Pa. 06-491, 19, No. Dkt. 18 at 6 Dec. Superior fail on merits. The would its 2006). Boyd argued that he was entitled Boyd’s on the basis that Court affirmed a writ of corpus habeas because Sciolla’s Quinn against claims Seiolla and under failure to communicate the Common- previously litigated, were and Strickland plea directly wealth’s offer himto consti- noted that “own affidavit conceded tuted ineffective that prejudiced assistance trial counsel informed him of the existence him under Strickland. offer, [Boyd] of the first which chose The District agreed Boyd Court with accept.” App. not to 71. rejected R Applying and the & R. de novo During pendency appli- of his PCRA holding any hearing, review without cation, Boyd filed an initial and an amend- Boyd District Court found that was enti- (col- petition for corpus ed writ of habeas (1) tled to relief under Strickland because: Petition) 2254, lectively, under 28 U.S.C. speak directly Sciolla’s failure to with in which he reiterated the same Strickland rejecting before the Common- against Quinn claims Seiolla that he per wealth’s initial se was defi- application. had raised his PCRA (2) cient; aild prejudiced be- assigned case was Magis- United States ultimately cause he received a sentence Scuderi, Judge trate Peter B. who held which was more than double the sentenc- Seiolla, evidentiary hearing Boyd, at which ing guidelines range under the initial offer. Quinn again, Boyd testified. Once The District Court concluded that because allege failed to in his Petition that his Boyd should be position returned to the guilty plea was not knowing, intelligent, or would have been but for inef- Sciolla’s Nevertheless, voluntary. at some point fectiveness, the writ should issue unless appeared joined issue to have been the Commonwealth revived the original Magistrate Judge. before the In his Re- plea offer. The District Court also noted (R R), port and Magis- Recommendation & abandoned his Strickland claim specifically trate Scuderi addressed Quinn. as to issue, noting Boyd’s guilty The Commonwealth filed a motion for constitutionally valid because the thor- reconsideration, which ough colloquy any [Boyd] the District Court “belie[d] regarding voluntary would make denied. The Commonwealth also filed a knowing plea.” nature of his App. stay 25. motion to of the issuance writ Magistrate Judge Thompson, 30. The should not have ad- See Coleman v. U.S. 729- issue, (1991); dressed this because failure to 115 L.Ed.2d 640 Horn, any point pro- raise it at in the state court Albrecht v. 459-60 Cir.2006) (vacated ceedings procedural grounds). constituted default. on other theory as a basis for reexam posited de- District Court but the appeal, pending ining already an issue that has been decid as well. that motion nied Senk, 496 Pa. ed.” Commonwealth II. (1981). 1218, 1220 A.2d timely appeal filed The Commonwealth dispute did not that his Strickland jurisdiction pur- and we have in this Court litigated” pur- “previously claim was A §§ 1291 and 2253. to 28 U.S.C. suant PCRA, argued but he poses argument on Oc- panel heard three-judge procedural this did not constitute a bar to initial granted 2007. This Court tober claim. The District his federal habeas banc, argument was and oral rehearing en stating: agrees agreed, “[t]his November the full Court on held before the determination of other courts presents two Although appeal holding ‘pre- this district the PCRA’s affecting our habeas cor- issues important viously litigated’ proce- rule is not a state procedural and jurisprudence-one pus requirement meaning within the dural briefing extensive one substantive —the 722, 729, Thompson, Coleman [v. to the Court argument presented oral (1991) 111 115 L.Ed.2d 640 S.Ct. ].” entirely on the substantive focused en banc issue. A. petitioner It is axiomatic that “a habeas

II. required to exhaust available state rem is by addressing the Common- begin We relief in requesting edies before habeas viz., that challenge, procedural wealth’s Fulcomer, v. federal court.” McMahon proce- claims are unexhausted and (3d Cir.1987). 934, 940 821 F.2d Exhaus plenary. is durally Our review defaulted. accomplished petitioner tion is when a Horn, 355 F.3d 713 Holloway v. See (3d Cir.2004). “presents” substantially in the state courts explain, As we will premised are arguments claim he asks the federal courts Commonwealth’s the same misunderstanding of the Pinchak, a fundamental on v. to review. See Johnson 392 liti- Pennsylvania’s “previously import of (3d Cir.2004). F.3d 556 “The habeas 42 PA. rule. CONS. STAT. gated” See petitioner proving carries the burden of 9543(a)(3). this rule has Because ANN. all state remedies.” exhaustion of available confusion, discuss its we will generated (Lambert I), Lambert v. Blackwell procedural for the default ramifications (3d Cir.1997) (citation 506, 513 omit F.3d length. analysis at some ted). PCRA, petitioner cannot Under the case, In this the District Court he can on the merits unless obtain review his claim that found that exhausted of error has not “allegation that an show ini rejecting ineffective in Sciolla was Id. previously litigated or waived.” been consulting tial offer without his client. “previously litigated” allegation An supports The record the District Court’s in which the highest appellate court “the argu conclusion because made this as a mat- could have had review petitioner Additionally, to the PCRA courts. ment has ruled on the merits right ter of courts to the fed Boyd alerted PCRA “has been raised allegation issue” or the by citing claim Strick eral nature collaterally proceeding in a and decided land, re presentation which satisfied or sentence.” attacking the conviction Reese, v. quirement. See Baldwin 9544(a)(2) §§ (3). Pa. Ann. Cons.Stat. 27, 29, 158 L.Ed.2d 64 U.S. Furthermore, may reliti- “an issue not be Delaware, 212 (2004); v. see also Hameen a new or different gated merely because (3d Cir.2000). That description interplay of these two doctrines.”). courts denied claim procedural grounds change does not the fact that he Whereas the inquiry exhaustion asks “presented” Holloway, it. See 355 F.3d at whether a claim “presented to the 717-18. courts,” procedural default analy- Although the Commonwealth concedes sis considers whether the claim “pre- presented this federal in sented in the manner that state law re- proceedings, argues the PCRA that the quires.” See Edwards v. Carpenter, 529 District Court’s finding of exhaustion is 446, 452, U.S. 146 L.Ed.2d Frank, contrary Wenger 266 F.3d 218 (2000) added) (internal (emphasis quo- (3d Cir.2001), where we held that a habeas omitted). Thus, tation marks petitioner neglected timely who to file a who “fairly present” does not his claim to petition for allocatur Pennsylvania the state courts is barred from presenting Supreme Court failed to exhaust his Cristin, it to the federal courts. claims. Id. at 223-24. Significantly, how- at 410. ever, Boyd’s claim Pennsyl- arose after the To why Pennsylvania’s understand rule vania Court issued In re: Ex- against relitigating claims pro- PCRA haustion State Remedies in Criminal ceedings that have been “previously litigat- Cases, and Post Conviction No. 218 Relief ed” under the current statute does not (Or- Judicial Administration Docket No. 1 operate a procedural default, we need 218). Wenger der Since we have held that only consider the Pennsylvania rule in Order 218 “renders review from the Penn- light “adequate of the independent” and sylvania Supreme Court ‘unavailable’ for doctrine, state ground of which the proce- purposes of exhausting state court reme- dural default rule is but one application. 2254(c).” § dies under Lambert v. Black- Varner, (3d See v. 327, Villot 373 F.3d 334 (Lambert II), 210, (3d well 387 F.3d 233 Cir.2004) (citation omitted). That doctrine Cir.2004). Accordingly, we hold that Boyd precludes a federal habeas court from ad- exhausted his claim Strickland in state dressing question of federal law decided Brennan, court. See Cristin v. 281 F.3d by a state court “if the decision of that (3d 404, Cir.2002). 410

court rests on a ground state law that is B. independent of the question federal and adequate to support judgment.” Cole- Our conclusion that exhaust man, 501 U.S. at 111 S.Ct. 2546. “A ed his claim Strickland does not answer provides state rule adequate an and inde- question procedural default, howev pendent basis for precluding federal re- er, because Supreme Court has made (1) view if the rule speaks unmistakable clear that a procedural default “forecloses (2) terms; all appellate state courts re- relief even petitioner when the has ex fused to petitioner’s review the hausted claims on his remedies.” See O’Sullivan v. merits; (3) and Boerckel, their refusal was con- 119 S.Ct. sistent (1999) with other decisions.” (Stevens, J., L.Ed.2d 1 Nara v. Frank, Cir.2007) dissenting); see also id. at (citations omitted). (O’Connor, J., Pennsylvania writing majori for the law pro- (“We ty) do not that a disagree with vides claim Justice Ste raised peti- PCRA general vens’ description of tion is “previously litigated” the law of ex if Superior haustion and procedural default” and decided the issue “on the merits” on “[specifically, we do not disagree with his direct appeal. See 42 PA. CONS. STAT. 9544(a)(2). Thus, rejected fully litigated been on di- when PCRA § ANN. petitioner of an have ex- to reach the merits rect review—the will refuses court litigated,” “previously it was hausted state remedies and the state issue because Pennsylvania appellate that a appellate it confirms courts will have had the re- a decision on the already rendered quired opportunity to address the feder- assumes the Because this rule merits. Nothing al claim. here said is intended of a preconditions one of the inverse of to address whether habeas re- federal viz., ap that “all state procedural respect view would be available with default — peti refused to review the courts pellate fully litigated claims on direct review in Nara, merits,” see tioner’s claims on the such a case. added) (emphasis at 199 488 F.3d —it added). (emphasis n. 11 In Id. ground. “independent” state law not an Pennsylvania legislature amend- contends that our The Commonwealth clarify unappealed ed the statute Vaughn, in Sistrunk decision “waived,” “previously are and not claims (3d Cir.1996), commands a different litigated” they prior had been under the Sistrunk, we disagree. result. We the statute. 42 Pa. version of See Cons. 9543(a)(3) § 1994 version of held that the 9544(a) (b). § Ann. Stat. adequate independent bar, In the case at this distinction makes supporting procedural default. ground law all the difference. Because the state however, Significantly, id. at 674-75. See “previously litigated” courts invoked provided that a of the statute that version reconsideration of rule to decline tri- litigated” “the “previously claim was ground claim on the Strickland the merits of the ... ruled on al court litigated appeal, been on direct and did not appeal.” and the did issue claim within the find this to be “waived” 9544(a)(1). § ANN. 42 PA. CONS. STAT. 9544(b), meaning presented we are claim on did not raise his Because Sistrunk anticipated by panel with the situation concluded that the appeal, we direct In light Sistrunk. Sistrunk, See procedurally defaulted. acceptance Justice Stevens’s Court’s Nevertheless, 669, 96 F.3d at 673-75. default procedural characterization of the panel, Judge a Sta- writing for unanimous O’Sullivan, rule,” doctrine as a “waiver see oxymoronic aspect of pleton explained the 850, 1728, at 119 we con- 526 U.S. S.Ct. unap- insofar as it defined the statute limited holding clude that Sistrunk’s is “previously litigated”: claims as pealed “waiver” sec- arising those cases under the fore- [previously litigated doctrine] 9544(b). §in tion set forth proceed- in a PCRA state review elose[s] form, liti- “previously current its fully litigat- ing of claims have been 9544(a) simply §in gated” rule codified well rejected appeal on direct [as ed and Pennsylvania courts of the burden relieves on presented claims which were not as judicata. revisiting issues which are res claims and appeal]. direct While such state judicata adequate But res is not an catego- like are both claims Sistrunk’s support procedural a de- ground law liti- by “previously rized the statute as See, e.g., Knight, Daniels v. 476 fault. are distinct gated,” categories the two (7th Cir.2007); see also Ste- F.3d 431 and inde- adequate purposes for (11th Zant, F.2d 1089 vens v. ground doctrine.... Un- pendent state Cir.1992). appeals Even the courts of here, a claim in a situation where like judicata-based rules yet have to hold res col- “previously litigated” and has been them have refused to treat “inadequate,” by lateral review is barred 9544(a)(3) procedural default. See has as a basis § claim —because Giurbino, may implicate judicata, v. 385 F.3d 1198 ation res

Carter but (9th Cir.2004) (California’s “[fjederal against bar re- precluded only by pro- review is in litigation proceedings state habeas forfeitures, judicata cedural res already litigated appeal claims on direct Frank, Page concerns.” v. 343 F.3d ruling procedural “neither a default nor (7th Cir.2003) added) (cita- (emphasis merits”); ruling Page a on the see also omitted). perspec- tions Viewed from this Lee, (4th Cir.2003) 415 n. 1 tive, treating Pennsylvania’s “previously (although against North Carolina’s bar re- litigated” procedural rule default litigation appeal of issues decided on very would contravene purpose of that an adequate independent proce- state doctrine: to ensure that state courts have rule, procedural dural it was “not a state opportunity had “an petition- to address [a prevents bar federal habeas re- er’s claims] the first instance.” Cole- view”).31 man, 731-32, 2546. that preclude relitigation State rules on 9544(a)’s apart § “adequacy” Even from already collateral review of claims decided or “independence,” “pre- it is clear that the appeal salutary direct serve a purpose viously litigated” rule insulates state courts, they but are not the kind of duplicative courts from effort but does not procedural “state requirement” preclude lead federal habeas review. aWhen default of habeas claims federal “previously PCRA court invokes the liti- court, rule, typically which gated” pe- it does so not occurs because a because an issue, claims, titioner applicant present has failed to raise not because fails twice, i See, he raises that already e.g., but because he has issue presented Slutz- Johnson, those claims least once before and re- ker v. 393 F.3d Cir.2004).32 ceived decision on the merits. This situ- This is consistent with Su- Only the Sixth Circuit has held interpretation to the con- our of the current version of Mitchell, trary. 9544(a) § See Carter v. than Sistrunlc. (6th Cir.2006) (Ohio’s rule, judicata res relitigation which bars of issues that were 32. Our confidence in this conclusion is bol- raised, raised or could have recognition been is an "ade- characterizing stered our quate 9544(a)’s independent” ground justifying "previously de- litigated” require- (citations fault) omitted). Carter, Following procedural ment as a basis for default would explained: the Sixth Circuit consequences practice. "There are two lead to absurd aIf judicata variants of res "previously litigated” under Ohio law for were to constitute default, collateral procedural attacks on convictions. The first we would consider have, variant is when a could but preju- could show "cause and to, bring failed a claim on direct review. The miscarriage jus- dice” or a "fundamental of Coleman, second variant occurs in state court when a tice” to excuse that default. See 750, actually brought litigated claim was on 501 U.S. at 111 S.Ct. 2546. "To show 'cause,' appeal. judi- direct This petitioner second variant of res the must demonstrate some proce- cata cannot form objective the basis of federal factor external to the defense that default, however, petitioner dural prevented compliance because the proce- with the state’s comply did procedural not to a requirements.” Holloway, with state dural 355 F.3d at fail (citation rule-namely that claims must be quotation raised on 716 n. 3 and internal Mitchell, omitted). appeal possible.” direct Durr v. noncompliance marks Petitioner's 423, (6th Cir.2007) (citation "litigation” would be his of the issue on direct omitted) Thus, (emphasis original). in appeal. Kafkaesque absurdity inas- asking The of a distinguish much as Carter’s failure to litigation be- to excuse his own of an governing tween the variant the appeal litigation Ohio rule issue on direct is re- —which previously litigated, issues that quired by were and the the doctrines of exhaustion governed procedural variant which waived, why issues that were default —demonstrates the teachings helpful its "previously litigated” are no more rule the is not kind of Tollett, Henderson, a prisoner state Ylst v. Nunne dicta. See preme Court 797, 3, pleaded guilty and was sentenced maker, n. S.Ct. who 501 U.S. (1991) years prison, sought in federal habe- (noting that a to 99 2590, 115 L.Ed.2d 706 “Negroes had been ex- for fur as relief because ineligibility decision based state grand jury cluded from the which indicted not constitute review does ther state default). 259, him in Id. at 93 S.Ct. 1948.” procedural ha- granted The district court the writ of reasons, we hold foregoing For all of and ordered Henderson’s re- corpus beas correctly deter- the District Court lease, not finding that he did waive his exhausted Strickland mined constitutionally indicted right be courts, in claim the grand jury. Id. at 93 S.Ct. selected procedurally defaulted claim was Appeals for the Sixth 1602. The Court against relitigation Pennsylvania’s bar affirmed, holding that Circuit there was no litigated” claims PCRA “previously relinquishment “intentional or abandon- proceedings. right privilege.” ment of a known Id. Zerbst, (quoting Johnson v.

IV. (1938)). 1019, 82 L.Ed. 1461 merits, in preparation Turning to reversed, holding The review, parties we ordered en banc was not “entitled to that Henderson re- (1) including: numerous issues brief custody solely by reason of lease from light review in standard of appropriate grand jury fact that the which indicted him Effective Death Antiterrorism and unconstitutionally selected.” Id. at (2) (AEDPA); Penalty Act of 1996 Instead, 93 S.Ct. 1602. once Judge’s evi- propriety Magistrate of the guilty, he pleaded Henderson forfeited his (3) hearing; and the District dentiary right challenge any constitutional viola- of the facts found Court’s de novo review plea. tions that antedated the See id. at Review of these by Magistrate Judge. 93 S.Ct. 1602. Court reasoned: prop- essential to a complex questions was principle recog- thus reaffirm the er Sciolla We evaluation guilty Brady trilogy: of counsel nized rendered ineffective assistance in the chain of represents initial break events respect with to the Commonwealth’s however, it in the criminal Ultimately, preceded which has guilty plea offer. a criminal defendant has representation process. When adequacy of Sciolla’s solemnly open court that he initial admitted respect to the Commonwealth’s in fact of the offense with which guilty offer is immaterial because guilty plea voluntary charged, may he is not thereafter Boyd’s knowing, intelligent, and independent relating claims to the guilty plea “represents a break raise preceded deprivation rights it in of constitutional chain of events which has prior entry guilty process.” criminal Tollett occurred Henderson, plea. may only voluntary He attack the U.S. (1973). is, 1602, intelligent guilty That once character of the 36 L.Ed.2d 235 and that he plea by showing he forfeited his abili- the advice re- Boyd pleaded guilty, deficien- ceived from counsel was not within the ty challenge any constitutional forth in McMann cy plea provided, [v. that standards set that came before — Richardson, 759, 1441, course, 397 U.S. 90 S.Ct. plea validly that the was en- (1970)]. 25 L.Ed.2d 763 tered. that Coleman envi-

“procedural requirement” sioned. Tollett, 267, Writing Supreme at 1602. for a unanimous 411 U.S. 93 S.Ct. inquiry Court, “The focus of federal habeas is the began by noting: Justice Stevens and the voluntariness nature the advice voluntary “It is settled that a and well not the as such of an plea, the existence intelligent plea guilty made an ac- infirmity.” Id. at constitutional antecedent person, cused who has been advised added). 266, Be- (emphasis 93 S.Ct. counsel, competent may collaterally not be cause the record was unclear attacked.” Id. at 2543. “It S.Ct. “precluded raising from Henderson was only is when the consensual character of voluntary intelligent the issue of the plea question is called into that guilty plea,” nature of his id. at 93 validity guilty of a plea may impaired.” be 1602, the remanded Supreme S.Ct. 508-09, Id. at 104 S.Ct. 2543. The Court the case. up opinion by noting summed its terse Tollett, years Supreme Eleven after fully Johnson aware of likely “was George Court considered the ease of John- consequences pleaded when he guilty; son, who was convicted in Arkansas state expect not unfair to him to live with those assault, court of burglary, and murder. consequences now.” Id. at Johnson, Mabry See (1984). Al- 81 L.Ed.2d 437 Johnson, Like Henderson and here though Johnson was sentenced to concur- challenge validity does not of his years burglary rent sentences of 21 for the Indeed, guilty plea. both in his brief be- assault, years and 12 for the the Arkansas fore the en banc court and at argu- oral Court vacated the murder convic- ment, Upon tion. Id. at S.Ct. 2543. conceded that remand, negotiations pros- ensued and the knowing, intelligent, voluntary. In- ecutor plea bargain offered Johnson a on stead, Boyd claims ineffective assistance charge the murder included recom- counsel at a point preceded entry mendation for a concurrent sentence of 21 guilty plea. of the valid In light of the 505-06, years. Id. 104 S.Ct. 2543. Supreme Court’s decisions in Tollett and days later, accepted Three Johnson the Mabry, Boyd’s guilty plea valid should be prosecutor’s Claiming offer. that he was beginning and the end of the matter. mistaken, prosecutor purported Neither counsel for nor the Feder- withdraw the offer that had al- Johnson cite, al Defender amici even much less ready accepted, plea bargain and offered a attempt to distinguish, Tollett. Both that included a recommendation for a con- briefs attempt distinguish Mabry,- but years. secutive sentence of 21 Id. unpersuasive. They efforts are initially rejected S.Ct. 2543. Johnson Mabry that counsel competent offer, prosecution’s second but later Boyd. whereas Sciolla was ineffective for accepted it and received consecutive sen- This is a false distinction. Both here and years. tence of 21 Id. Mabry, arguably counsel were ineffec- Presumably he because learned he representation tive in their prior to their could have enforced the initial However, guilty pleas. clients’ neither for a recommendation for a concurrent Boyd nor the plaintiff Mabry contended sentence, petition Johnson filed a habeas that counsel was regard ineffective with in federal court. The district court denied case, itself. In this on the con- petition, but the of appeals re- trary, Boyd’s repeated versed, assertion holding that ini- prosecution’s 506-07, knowingly, intelligently, voluntarily tial offer was enforceable. Id. at ac- 104 S.Ct. 2543. cepted the terms of the second offer is way in relief the same ineffec- claim for habeas was not that Sciolla a concession Mabry. claim in that it doomed Johnson’s regard to representation in his tive Indeed, legal logical it and is plea. that sum, Mabry In Tollett and fore- because one’s decision was say impossibility challenging any constitu- Boyd from close if it voluntary intelligent, and knowing, violation antecedent to his valid tional constitutionally deficient was infected plea, I would reverse the District guilty counsel. from advice of grant conditional of the writ Court’s corpus. habeas could have filed Mabry, counsel 21-year concurrent enforce the motion to Y. ac- his client had deal because sentence it was withdrawn. offer before cepted majority holds that Tollett A Moscahlaidis, 868 States See United not control case Mabry and do Cir.1989) (“Although a applies Strickland instead.33 because in criminal con- occurs agreement However, ignore if even this Court were to in text, contractual nature it remains Mabry, Boyd’s claim would fail Tollett and contract-law stan- analyzed under is to be under the Strickland test.34 dards.”). one principles, contract Under important It to recall what we have is any until the point an offer at may accept appeal. to decide in this been asked See Restatement is withdrawn. on whether Sciolla was con- parties focus (1981). § 35 (Second) of Contracts stitutionally rejecting ineffective years Here, initial offer of 4-8 could have—and should Commonwealth’s Sciolla discussing without first it imprisonment the Commonwealth’s have—communicated and, so, Boyd was rather than with directly to initial offer Nonetheless, thereby. accept general I this prejudiced there “through his mother.” issue, qualify but it adequacy of Sciol- characterization question no as to the First, triable, not respects. in two our Court does that the case was not la’s advice petition a valid assess the merits of this habeas entered disputed nor is the issue raised Boyd’s we would have had been This valid dooms guilty plea. case, Mabry Court ex- Boyd's assistance claim. As Like both Tollett and 33. plained in Tollett: arguably assistance of involved ineffective solely in If the issue were to be cast terms guilty entry a valid prior counsel "waiver,” Appeals the Court of was un- penalty plea, was a death whereas Strickland concluding doubtedly correct that there counsel where the was whether case issue just as had been no such waiver here. But phase during penalty after ineffective Brady trilogy guilty pleas were in the Furthermore, entry guilty plea. a valid inquiry to foreclose direct into found Mabry importantly, perhaps more of claimed antecedent constitutional merits Strickland and does decided one month after there, respon- violations we conclude Therefore, even mention Strickland. not guilty plea inde- dent's here alike forecloses view, ubiquity, despite its my Strickland’s pendent inquiry the claim of discrimi- into applies alleging ineffec- two-part test to cases grand jury. in the selection of the nation with, conjunction or subse- tive assistance U.S. at 93 S.Ct. 1602. to, apply quent guilty plea, but does not guilty to a valid antecedent ineffectiveness join V Judges Barry do not Part Smith plea. they disagree Opinion, not because is not would fail under the Strick- citation to Menna Sloviter's test, they believe that it is a waiver case land but because persuasive because Menna is unnecessary the issues addressed allege to reach and the state does right bring this section. his ineffective "waived” his Jones, appeal; as Chief Scirica’s dice. See Commonwealth v. on direct explains, (Pa.Super.2008) faithful A.2d 906-07 opinion (noting we must remain hearing superflu- to AEDPA’s deferential standard of re- that “a will be rendered 2254(d). Second, § court can view. See 28 U.S.C. ous determine from the prejudice existing record that there because issue Strickland has been no facts, only prejudice appellant”); turns on the we must consider Pa. see also 907(1). developed those facts which were either in P. a R.Crim. When defendant at- court, or in properly developed tempts evidentiary the state to show the need for an affidavits, hearing by providing the District Court under AEDPA. See 28 affi- those 2254(e)(2). § everything together”; U.S.C. davits must “tie oth- erwise, hearing. he will not be entitled to a

A. Hall, See Commonwealth 867 A.2d (Pa.Super.2005). per opinion curiam instructs the District Court decide on remand wheth- Reading Boyd the affidavits submitted Magistrate Judge er the should have held pleadings and the filed light counsel in evidentiary hearing my an in this case. fact that knew about the initial view, hearing precluded by AED- such yet decided to “take his chances PA. court,” with the discretion of the the state evidentiary determined no hear-

A power federal district court’s to hold a ing was warranted. The record confirms hearing is limited AEDPA. This re state court offer of proof was striction is consistent principle with the “[fjederal prejudice, insufficient to establish and did in sitting courts habeas are put the court on notice that he not an could trying alternative forum for facts establish cause. Because the affidavits and issues which prisoner made insuffi Boyd submitted sufficiently were not rele- pursue cient effort to in proceed state vant comprehensive ings.” Taylor, 504 F.3d at establish both (quoting 420, 437, prongs of his Taylor, Williams v. ineffectiveness claim in state f20 (2000)). court, 1479, 146 Here, failed to develop L.Ed.2d 435 the factual in ordering evidentiary hearing, an basis for his ineffective assistance claims Magistrate Judge erroneously coming See, failed to as before to federal court. e.g., Frank, (7th certain whether AEDPA authorized a Owens v. such Cir.2005) hearing. This significant error was be (finding who was cause the record reflects that “has hearing denied state court did not develop failed to develop factual basis” of his diligently the factual record under 2254(e)(2) because, alia, § court. 28 U.S.C. inter the affida- 2254(e)(2). vits he submitted to the state court omit- him). key allegations ted factual known to Boyd attempted to “develop the factual by requesting basis” for his claim an evi- Given that Pennsyl- failed to meet dentiary hearing in state court. 28 U.S.C. vania’s prerequisites evidentiary for an 2254(e)(2). §§ Pennsylvania But because hearing, it follows that he is not entitled to provides right law that the an hearing evidentia- in federal court. Section ry 2254(e)(2) hearing post-conviction proceedings a hearing peti- bars unless the automatic, is not see Commonwealth v. tioner “diligently unsuccessfully but seeks Jordan, (Pa.Su- 772 A.2d evidentiary hearing in state court.” added). per.2001), Boyd was required Taylor, to offer evi- 504 F.3d at 444 (emphasis argument dence and in support of his As the explained Williams, claims counsel ineffectiveness and preju- “[diligence require will in the

375 handling mini- plea. at a initial Nor did he prisoner, case that the usual in mum, evidentiary hearing state a argue hearing necessary seek an that was to by state prescribed the manner court in develop prejudice. Pennsylva- evidence of 1479 529 law.” See U.S. require nia law did not the state to courts added). emphasized As the (emphasis so; give Boyd a until he hearing did be- reflects, the mere portion quotation of this standard, Boyd cause never met this he hearing being and denied a seeking act of prove diligence failed to such has that he satisfy enough not to in state court is hearing should be entitled to a in federal 2254(e)(2); rather, requires § Williams court.35 petitioner so “in the manner that the do can that Nor show the factual by state law.” Other courts of prescribed for his claim “could not basis have been that recognized merely have seek- appeals previously through discovered” his dili- in ing being hearing denied a state of gence stringent the “other re- —one a a court does not entitle defendant quirements” of 28 U.S.C. hearing in court under federal 2254(e)(2)(A)(ii). Williams, § See 2254(e)(2). See, Bender, § Teti 507 e.g., v. 437, 120 By S.Ct. 1479. the end of his (1st Cir.2007); see also Smith guilty plea hearing, Boyd knew all of the (8th Bowersox, v. 311 F.3d 921-22 needed facts he to know to that claim Cir.2002); Johnson, 230 F.3d Dowthitt Sciolla ineffective. knew that (5th Cir.2000) (“Mere requests for had not Sciolla discussed the initial suffice; evidentiary hearings will not the directly it, him with before rejecting in diligent petitioner pursuing must be that potential he knew claim.”). sentencing factual of his As development range greater was far than the years 4-8 above, Boyd may “sought” explained have initial court, contemplated. that in evidentiary hearing state but an sentenced, by And the time he was present in he did sufficient evidence necessary knew the facts to claim permit preju- that court the inference he any in way prejudiced by Sciolla’s dice insofar as he knew that he was receiv- Judge petition- developed. "if a can be 35. Sloviter contends that record See United States ex hearing Leibach, seeks denied a in state er court, and is Hampton v. rel. 2254(e)(2) § nothing there in is (7th Cir.2003) (observing that could affidavits granting from a hear- bars district court develop the factual basis for counsel ineffec- ing." Op. at 359. a hold- See Sloviter Such 2254(e)(2)); purposes § tiveness claim ing expand considerably would Court’s Taylor, (rejecting also F.3d at 436 see holding Taylor, in which an eviden- allows for that, petitioner's because PCRA tiary only hearing when the has evidentiary hearing court declined to an hold "diligent” been in state court. procedural inadequate on an de- based state Furthermore, Judge interpreta- Sloviter’s rule, hearing to a fault was entitled in plain language tion is with the inconsistent court). federal read- Under Sloviter’s 2254(e)(2). Congress § Had intended to 2254(e)(2), § ing prisoner a state could petitioner's make a to a habeas entitlement evidentiary hearing obtain an in federal court hearing dependent upon federal whether the filing unsupported request hearing an for a one, state had held could have done court, in state a federal habeas followed by replacing language "applicant so has petition complains which state court’s develop failed factual basis of” hearing. reading failure to hold a This 2254(e)(2) phrase § court has "state 2254(e)(2) with the cannot be reconciled hearing Section failed hold on.” Williams, Supreme Court’s decision which 2254(e)(2) development does not state required request be "in the state made requires evidentiary aof factual claim prescribed by state law.” hearing manner See court and we should not only way a factual U.S. at assume this is tions). than

ing higher years sentence 4-8 That did not receive an evi- preferred year that he have dentiary would 4-8 hearing state court perhaps Nothing prevented Boyd offer. regrettable, but it is a product of his own —who by represented step was counsel each of doing by and should not be cured granting way providing comprehensive him hearing a in federal court in contra- —from (or least, at complete) support affidavits to vention of Accordingly, AEDPA. I en- allegations. his factual Yet did not courage the District Court remand to court, do so in even though state such review the record developed as in state Thus, evidence was to him. available his court alone without granting an evidentia- develop efforts to court record ry hearing for further factual develop- diligent. cannot be considered See Com- ment.36 Lambert, 320, v. 529 Pa.

monwealth 603 B. (1992) 568, (affirming A.2d 579 a trial evidentiary hearing court’s denial of an light of foregoing considerations, where the evidence to be offered “could the issue should be framed as follows: In have been much discovered earlier with denying Boyd’s Strickland claim against diligence”). due Sciolla, did the state courts render a deci- sion that “contrary to” or involved an

The Supreme recognized Court has “unreasonable application of’ federal law generally “AEDPA prohibits federal habe- as Court, determined the Supreme granting evidentiary as courts from hear- based on an “unreasonable determination ings applicants when have failed develop to in light the facts” pre- the evidence the factual bases for their claims in state sented in those courts? courts.” Landrigan, Schriro v. 550 U.S.

465, 1, 1933, n. 473 127 167 S.Ct. L.Ed.2d (2007) 2254(e)(2)). §

836 (citing 28 U.S.C. Though AEDPA open potential leaves “the that, It is axiomatic to succeed on an cases, for harsh in results some we are not claim, ineffective assistance of counsel free to rewrite the statute that Congress petitioner must prongs establish both States, has enacted.” Dodd v. United 545 the test enunciated Supreme Court 353, 359, 2478, U.S. 125 S.Ct. 162 L.Ed.2d in Strickland. That requires Boyd test (2005) (denying (1) 343 petition habeas attorney’s demonstrate: perform- upon based AEDPA’s statute of limita- ance was deficient in the sense that it fell 468, 36. To the extent added). Sloviter believes that U.S. at 127 (emphasis S.Ct. 1933 Sain, Townsend v. 372 U.S. 83 S.Ct. reflects, emphasized language As this does (1963), “actually required” 9 L.Ed.2d 770 requires not mean that hearings Townsend grant Boyd hearing District Court to not- 2254(e). Rather, by § which are forbidden withstanding language 2254(e)(2), § see pre-AEDPA Townsend reflects the standard. Op. Sloviter she is incorrect. Town- explained As we Campbell Vaughn, 209 send described the circumstances in which a (3d Cir.2000): F.3d “AEDPAamend- required federal court grant an eviden- ed the federal way habeas statute in such a as tiary hearing AEDPAbecame law. See before availability limit the evidentiary of new Townsend, 372 U.S. at 83 S.Ct. 745. As hearings on habeas review.... Prior to AED- Schriro, Supreme explained “[i]n PA, evidentiary hearings new required were applicant cases where an for federal habeas AEDPA, several circumstances.... in con- relief obtaining is not hatred an eviden- from trast, permits evidentiary hearings on habeas tiary 2254(e)(2), hearing by 28 U.S.C. review, only but in a limited grant number of cir- hearing decision to such a rests in the court,” (citation omitted) discretion of the cumstances.” Id. district at 286 as it did Schriro, before AEDPA (emphasis under Townsend. original). ground on the of reasonable objective standard below an ineffectiveness ive (2) prejudice, which ness; lack prejudice he suffered of sufficient so, course ivill be attorney’s perform expect deficient result of often 687-88, Strickland, be should ance. See followed. Court has 2052. The S.Ct. (emphasis add Id. at applies that Strickland acknowledged ed). ap Court has followed Our during plea negotiations. conduct counsel’s Mazurkiewicz, 1 proach. See McAleese v. Lockhart, 52, 58, See Hill v. U.S. (3d Cir.1993).37 159, 170-71 (1985). Thus, 88 L.Ed.2d 203 prejudice, To demonstrate “must Strickland, Boyd demonstrate under must that, probability but for show a reasonable telling that act of the Common Sciolla’s errors, the result unprofessional counsel’s plea initial was unac that its offer wealth proceeding would have been differ- the discussing the matter with ceptable before probability proba- is a ent. A reasonable preju and that he was was deficient bility confidence in sufficient undermine is, must deficiency; that he diced the Horn, 485 the outcome.” Albrecht v. F.3d performance “fell be prove counsel’s that (3d Cir.2007) (internal quotation 127 objective of reasonable low an standard omitted). here, Where, peti- as a marks Strickland, 687-88, ness,” at 104 as- alleges that counsel’s ineffective tioner a reasonable “there is S.Ct. him the to take opportunity sistance cost a that, unpro for but counsel’s probability plea, he must demonstrate a reasonable errors, proceed the result of the fessional that, probability but counsel’s ineffec- been different.” Id. ing have would assistance, accepted have tive would the 104 2052. Hill, 474 foregone plea offer. U.S. at See 366; not consider the ineffectiveness We need see also United States v. however, (3d if we that no Jones, determine prong, Cir.2003); 336 F.3d (3d from conduct. prejudice resulted counsel’s Day, States v. United ex- approach Cir.1992). of this approved Strickland requires This showing “some plicitly: evidence’ ‘objective that a would Jones, per- accepted plea have offer.”

Although we discussed have (citation omitted); Meyers component an ineffective- F.3d formance cf. Gillis, compo- 668-69 Cir. prior prejudice ness 1998) nent, (finding no for a court ineffective assistance there is reason petition- ap- plea claim to context of where deciding an ineffectiveness rejected testimony that have order or he would proach inquiry the same er’s by other plea both of the was corroborated evidence components even to address record). an insuf- in the inquiry if the defendant makes showing particular, on one. In ficient coun-

court need not determine whether 2. mind, before performance foregoing sel’s deficient standard we With by the court examining prejudice suffered should conclude the state record preju- alleged question a result of defi- of Strickland defendant as resolves Superior dispose .... it is dice.38 his affidavit before ciencies easier If above, Judge explained Magistrate my not to decision 38. As Sloviter criticizes prong See analyze the "cause” of Strickland. evidentiary hearing laboring while an held so, how- Op. at 357. I to do Sloviter ever, decline the erroneous conclusion there under light precedents of the Circuit, decision the Third and this Court and approbation should not be misconstrued as conduct. Sciolla’s appeal, Boyd Court on direct admitted that state court found that Sciolla informed of the initial offer and he was aware of the initial offer and accept chose not to it. This was a reason- rejection. Boyd its was told several times interpretation able transcript of the during guilty plea hearing guilty plea hearing, which reflects could sentence him to 12^-25 Boyd adult who was competent found —an years.39 He also stated that he had dis- to stand possibili- trial —was told about the parents cussed his case with his and Sciol- ty of a year sentence no fewer 12^-25 la, times, was satisfied with than performance, Sciolla’s five stated he understood each time, and asked no questions when invited and still plead wanted to guilty, even to do so. pleadings and affida- though he knew 25-year he could receive a vits —some of which do not even assert prison During sentence. that same hear- that he would have elected to take the ing, Boyd was told the guidelines standard offer, initial and contradict affi- later range, roughly which coincided with the 4- davits on point reasonably are read — year range contemplated in original conceding his knowledge of the initial plea evidence, In light offer. of plea this offer rejection.40 and his assent to its warranting were no state court facts making AEDPA distinguish no effort to the evidence required deference. This error the District Superior before the Court from the evidence disregard Court to hearing, the fruits of generated hearing at the Magis- before the Instead, examine the record Judge. Court, to determine whether trate like the District findings the state courts’ of fact Judge were reason- summary Sloviter’s of the factual back- light able in Boyd the evidence ground chose to relies on evidence which was not be- place courts, before them. Vaughn, See Rolan v. fore the state presented but which was (3d Cir.2006); F.3d see also Lambert for the Magistrate first time to the Judge. To II, Nevertheless, 387 F.3d at 234-35. 2254(e)(2), § remain faithful to I have at- only District Court’s citation tempted to the record separate Boyd the evidence that Boyd’s testimony was to evidentiary at the offered to the state courts from the much hearing that accepted (and he would have the ini- more voluminous sometimes inconsis- plea. Consequently, tial tent) the District Court evidence that he offered in federal court. failed to assess reasonableness of the state court, Boyd's appeal courts' disbelief of 40. On claim that direct Boyd’s he would accepted argued have plea the initial counsel offer based that Sciolla had on communicat- plea evidence them. ed the [Boyd] This too initial was error. offer “to and his before Rolan, parents,” See Boyd 445 F.3d at 680-81. and that "accepted the advice rejected of counsel plea.” App. Furthermore, Judge as opin- Chief Scirica’s Likewise, me, Boyd averred that Sciolla "told notes, Magistrate ion once Judge conduct- through my mother” of the initial offer. hearing, ed a by Magis- facts found introduction, Judge In her Sloviter criti- Judge trate by were entitled to deference cizes the state Court, "assumption courts for their District Beyer, see Hill v. 62 F.3d ... (3d ‘knew about the Cir.1995), initial rejected and could not be yet decided to "take his chances with the subsequent without the benefit aof evidentia- ’ ” discretion of the Op. court.” Sloviter ry hearing in the District Court. 374. The state courts made assump- no such summary, to the extent the District Court Rather, Boyd's tion. ap- counsel on direct evidentiary relied on hearing transcript, it Quinn, peal, represented Thomas Rolan, Supe- did so in violation and to the extent rior Court that "decided to take his the District Court made findings different chances on the discretion of the court as to transcript, fact based on that it did so in sentencing.” App. 85-86. Whether one calls violation of Hill. concession, admission, this a stipula- an or a tion, 39. Because Sloviter believes that the assuredly "assump- most was an not Magistrate Judge "required” was by hold an tion” the state court. The state courts took Quinn evidentiary hearing, Op. word; see Sloviter at 359- being far from "disas- repeats she the District trously Court’s error wrong,” they every right had to do so. “contrary to” nor “unreasonable only are ther parents’ affidavits And Supreme Court application precedent, of’ have said they to what would relevant based an unreasonable determina- nor as to done; are irrelevant they light facts in of the evidence tion Additionally, these or actions.41 intentions 2254(d). them. See 28 U.S.C. before have been re- reasonably could affidavits the District Court erred Accordingly, Boyd’s affidavit the same reason jected for “[wjithout deciding granting the writ ie., incredible; despite their claims as was reasonably.” acted counsel [ ] told they would have what Cross, v. United States they, like guidelines, known of they (3d Cir.2002). son, objection on made no apparently their change the record at the or off not Boyd has shown

hearing. Accordingly, VI. that he court’s conclusion that the PCRA reasons, sup- conduct I cannot foregoing Sciolla’s For the prejudiced to, contrary appli- or an unreasonable in this case. Because port remand of, clearly hearing to evidentiary established is not entitled to an cation record, develop and we should defer further the factual all that precedent factfinding regard. to apply court’s is left is for this Court AEDPA’s the state 2254(d) (e)(1); §§ legal & see also standard to the estab- See 28 U.S.C. deferential record, Snyder, a task that is well lished factual Weeks Cir.2000). purview. within our Whether we deter- guilty that Boyd’s admittedly mine valid that to the extent fact appreciate I request his habeas re- plea forecloses for persuade the believed he could Sciolla Mabry, lief under 'Tollett and or whether impose more lenient sentence court to assess merits of we Strickland year the Commonwealth than the 4-8 term AEDPA’s stan- claim under deferential offered, initially hindsight shows that dard, Boyd not entitled relief. Ac- Boyd seriously mistaken. But has not was cordingly, from the respectfully I dissent convincing clear and evidence to adduced the case. decision to remand implicit finding state rebut the courts’ that, probability no there was reasonable rejection plea of the initial

but Sciolla’s All

offer, Boyd taken it. would have the state

objective evidence before courts took his counsel’s ad-

suggests try persuade the court to be

vice to forgiving than the Commonwealth

more initial inclined to be in its offer.

Accordingly, the courts’ conclusion prejudiced was not Sciolla’s nei-

rejection initial credible, believed, parents that even if the affi- from his I note submitted affidavits light question whether davits no they the effect that would have advised him shed they parents' advice. would have heeded accept the initial offer had known States, guidelines range. passing Without See v. United Paters (7th Cir.1998). judgment on those affidavits are

Case Details

Case Name: Boyd v. Waymart

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 31, 2009

Citation: 579 F.3d 330

Docket Number: 07-2185

Court Abbreviation: 3rd Cir.