James BAKER, Appellant, v. James F. BARBO; Attorney General of the State of New Jersey
No. 97-5687
United States Court of Appeals, Third Circuit
Argued March 23, 1999. Decided May 13, 1999.
The overriding determinant is that the Commissioner‘s regulation is authorized by the statute, and his interpretation of that regulation is not so unreasonable as to be declared invalid by this court on policy grounds. That is not our function or our decision. As the Supreme Court has emphasized, “[w]hen Congress ... has delegated policymaking authority to an administrative agency, the extent of judicial review of the agency‘s policy determinations is limited.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991).
III.
CONCLUSION
For the reasons set forth, we agree with the Tax Court, and will affirm its judgment.
Thomas V. Manahan, Prosecutor of Union County, Steven J. Kaflowitz (argued), Assistant Prosecutor, Office of Prosecutor of Union County, Union County Administration Building, Elizabeth, NJ, for Appellee.
BEFORE: GREENBERG and ROTH, Circuit Judges, and POLLAK,* District Judge.
GREENBERG, Circuit Judge.
I. INTRODUCTION
On this appeal we review the district court‘s order denying James Baker‘s petition for a writ of habeas corpus filed under
II. BACKGROUND
On March 19, 1987, a New Jersey grand jury indicted Baker together with co-defendant Stephen L. Garry for two sets of crimes committed on the evening of January 7, 1987, in Elizabeth, New Jersey: the robbery and attempted abduction of Elizabeth Soto and the abduction, kidnaping, and aggravated sexual assault of M.B., a 15-year-old girl. Together, these incidents constituted second degree robbery in violation of
Baker and Garry committed the first crime at approximately 8:00 p.m. on January 7, 1987. At that time Baker, who was driving a stolen car, and Garry, his passenger, pulled up alongside Soto, who was leaving a store. Garry jumped out and chased Soto. A struggle then ensued after Soto unsuccessfully tried to run away. Garry dragged Soto into the middle of the road toward the car. She told Garry to take her purse, but he said, “no, we want you.” Soto then began to hit and kick Garry and called for help, and, after a ten-minute struggle during which Garry took Soto‘s purse, Garry jumped back into the car, and he and Baker drove off. A witness saw the struggle and the police were called. They arrived minutes later and began a search for the car.
Meanwhile, about a mile away, Garry and Baker pulled up along side 15-year-old M.B. sometime after 8:30 p.m. as she was walking home from a friend‘s house. One of the two men pulled M.B. into the backseat of the car and over the next two hours Garry raped her twice and Baker forced her to perform fellatio on him and attempted to rape her. They then released her onto the street, and she made her way home. Her mother took her to a police station and then to a hospital. Subsequently, the police arrested both men and the grand jury indicted them for the offenses we have described.
The heart of this appeal lies in the fact that at the time of Baker‘s offenses, indictment, trial, and sentencing a new law was in effect which required a mandatory minimum term of incarceration of 25 years in this case. Under
Nevertheless, the prosecution, unaware of the amendment to
The State offered Baker the same plea bargain: a maximum term of 30 years with 15 years of parole ineligibility. Baker declined this offer, however, and chose to go to trial because his attorney advised him that he had nothing to gain from accepting the plea: if he went to trial the maximum sentence he faced was 30 years with 15 years of parole ineligibility—the very same “deal” the State was offering. Baker‘s attorney, like the court and the prosecutor, was, of course, unaware of the change in the law.
After a two-day trial, a jury on September 10, 1987, found Baker guilty of robbery, attempted kidnaping, kidnaping and aggravated sexual assault. The court dismissed the charge of criminal restraint. On December 4, 1987, the court, unaware of the change in the law, sentenced Baker to concurrent nine-year terms of imprisonment with three-year terms of parole ineligibility for robbery and attempted kidnaping and a consecutive 18-year term of imprisonment with an eight-year term of parole ineligibility for kidnaping. The1 court merged Baker‘s conviction for aggravated sexual assault into his conviction for kidnaping. Thus, the court sentenced Baker to an aggregate custodial term of 27 years with 11 years of parole ineligibility. Accordingly, both Baker and Garry received illegal sentences.
Baker filed an untimely notice of appeal from his conviction on July 18, 1988, but the Appellate Division of the New Jersey Superior Court, entered an order on February 22, 1989, authorizing the appeal to be filed nunc pro tunc. Baker asserted various trial errors on appeal, but when he filed the appeal he still was unaware of the sentencing amendment on the kidnaping charge. However, on August 21, 1989, the State filed a motion for leave to file a cross-appeal nunc pro tunc, contending that Baker‘s sentence for kidnaping was illegal because of the change in law prior to the commission of the offenses. The Appellate Division granted that motion on September 12, 1989. Then, in an unpublished per curiam opinion filed on January 2, 1990, the Appellate Division affirmed Baker‘s convictions and, inasmuch as it agreed with the State that Baker was subject to the 25-year parole disqualifier, it remanded the case to the trial court for reconsideration of the sentence. State v. Baker, No. A-5384-87T4 (N.J.Super.Ct.App.Div. Jan. 2, 1990).
Baker moved in the Appellate Division for reconsideration of the order remanding the case for reconsideration of his sentence, but the court denied his motion on February 27, 1990, stating that the trial court could address the issues he raised in the motion when it reconsidered Baker‘s sentence. The New Jersey Supreme Court denied Baker‘s petition for certifica-
Baker then filed a petition for post-conviction relief in the trial court on March 27, 1991, alleging that he had been denied effective assistance of counsel and that he had been denied due process and equal protection of the law because the State had entered into a plea bargain with Garry under which Garry testified against Baker in exchange for an illegally short sentence. After an evidentiary hearing, the trial court denied his petition on October 7, 1991.
On February 19, 1992, the trial court resentenced Baker to a 25-year term of imprisonment without eligibility for parole for kidnaping and concurrent nine-year terms of imprisonment with three-year periods of parole ineligibility for robbery and attempted kidnaping. The court merged Baker‘s conviction for aggravated sexual assault into his conviction for kidnaping. Thus, the court resentenced Baker to an aggregate custodial term of 25 years without eligibility for parole, more than doubling the period of parole ineligibility it had imposed in the original sentence.
Baker filed separate notices of appeal from the denial of his petition for post-conviction relief and from the judgment entered on his resentencing. The Appellate Division consolidated these appeals on December 30, 1992, and affirmed Baker‘s convictions on January 21, 1994, over a dissent. State v. Baker, 270 N.J.Super. 55, 636 A.2d 553 (N.J.Super.Ct.App.Div.1994). On further appeal, the Supreme Court of New Jersey, on October 27, 1994, affirmed the decision of the Appellate Division with one justice dissenting. State v. Baker, 138 N.J. 89, 648 A.2d 1127 (N.J.1994).
Baker filed a petition for a writ of habeas corpus on April 23, 1996, pursuant to
III. DISCUSSION
A. Denial of Effective Assistance of Counsel
Baker argues that he was denied effective assistance of counsel in violation of the Sixth Amendment because of his attorney‘s ignorance of the statutory sentencing amendment during the plea negotiations and because his attorney made various errors during the trial. Baker contends that his attorney‘s ignorance of the sentencing law caused him to pass up the opportunity to plead guilty and to be sentenced to a 30-year term with a 15-year limit of parole ineligibility.3 Inasmuch as we find that his contentions with respect to his representation at trial are clearly without merit, we confine our discussion to the significance of his attorney‘s ignorance of the sentencing law.
We start our discussion of the Sixth Amendment issues by pointing out
We agree with Baker that his trial attorney‘s error with respect to his ignorance of the sentencing law has satisfied the first prong of the Strickland test. Strickland, 466 U.S. at 688, 690, 104 S.Ct. at 2064-65. While we realize that this case is extraordinary in that the state trial judge4 and the prosecutor also did not know of the change in the law even at the time of Baker‘s sentencing almost one year after the enactment of the amendment,
Baker, however, has not met the second Strickland prong—a showing that there is a “reasonable probability that, but for” the error there might have been a different result. The “reasonable probability” test is not a stringent one. See Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986) (reasonable probability standard less demanding than preponderance standard). We have recognized that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Day, 969 F.2d 39, 42 (3d Cir.1992) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). But Baker‘s arguments as to prejudice are totally speculative and do not meet that standard.
We have held that an attorney can be ineffective by giving a defendant false information about sentencing, thereby inducing the defendant to plead guilty instead of going to trial. See Meyers v. Gillis, 142 F.3d 664 (3d Cir.1998). In Meyers we found that a defense attorney was mistaken in informing his client that he would be eligible for parole in a case where the offense to which the defendant pled guilty carried a mandatory life sentence. We reasoned that there was prejudice because there was evidence that, but for the attorney‘s advice, the defendant would not have pled guilty, and might have been convicted of a lesser offense. Id. at 664. Similarly, there can be no doubt that an attorney can be ineffective in giving his client advice which leads him to turn down a favorable plea agreement if the attorney is not
If Baker‘s attorney had known of the sentencing amendment he would have had the professional duty to alert the State and the court of the amendment because a defendant cannot bargain for an illegal sentence. See, e.g., In re Norton, 128 N.J. 520, 608 A.2d 328, 338 (N.J.1992); State v. Nemeth, 214 N.J.Super. 324, 519 A.2d 367, 368 (N.J.Super.Ct.App.Div.1986) (“[T]here can be no plea bargain to an illegal sentence.“); see also
It therefore follows that, if his attorney had not been ineffective, Baker could have obtained a 30-year sentence with a 15-year period of parole ineligibility only if his attorney could have negotiated for a dismissal of the kidnaping count. But it is mere speculation to think that he could have done so. After all, Baker cannot demonstrate that there was a reasonable probability that the prosecutor would have negotiated a plea agreement that would frustrate the Legislature‘s then recently adopted requirement for a 25-year period of parole ineligibility in the circumstances of this case. Furthermore, even if Baker could have negotiated the agreement with the prosecutor, it could have been implemented only with the consent of the trial court because New Jersey state court practice permits the trial court to reject a guilty plea even when tendered pursuant to a plea agreement. See
In considering whether there was a reasonable probability that Baker would have been able to negotiate for a dismissal of the kidnaping charge, it is important to recognize how severe the prosecutor‘s bargaining position had been. During the negotiations the parties believed that the proposed plea agreement which included a 30-year term with a 15-year period of parole ineligibility was the maximum sentence for the kidnaping offense. See
Moreover, the court upon Baker‘s conviction sentenced him to a 27-year term with an 11-year period of parole ineligibility, in a sense vindicating Baker‘s attorney‘s position which, in the absence of the
We recognize that the district court did not conduct an evidentiary hearing in this case and that sometimes it is necessary for the court to hold such a hearing to resolve disputed questions of fact. But this case does not fall within that category as the nature of Baker‘s claim is such that his chances for relief must remain nothing more than a possibility. Consequently, we will not remand so that the district court can preside over a charade in which witnesses testify about hypothetical conduct. In these circumstances, we cannot hold that there is a reasonable probability that
Some context as to the trial testimony is helpful in explaining our decision. The first victim, Soto, tentatively identified Baker as the driver of the car which pulled up beside her and she positively identified Baker at trial. The second victim, M.B., testified that Baker attempted to sexually assault her but that she bit him and that this deterred his attack. While M.B. immediately after the crime did not identify Baker from a photo array, she was able to do so a few weeks later and she identified him at trial. Garry testified for the State that he and Baker committed both crimes, but he testified that he, not Baker, drove the car, and that it was Baker who jumped out to grab Soto and, later that evening, M.B.8 He also testified that both he and Baker sexually assaulted M.B. in the car. Further, Detective Conrad Cheatham of the Elizabeth Police Department, who arrested Baker, testified that Baker admitted participating in the assault upon Soto, stating that Garry drove the car while he attacked Soto. State v. Baker, 636 A.2d at 558. Given the strength of this evidence, there is no reasonable probability that in order to accommodate Baker the State would have dropped the first-degree kidnaping charge if it had been aware of the 25-year mandatory imprisonment term
Of course, we cannot replay the events of the pre-trial proceedings. Yet it is clear enough that the Strickland test requires a showing that a defendant has been deprived of a “just result” due to ineffective counsel. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. The State‘s cross-appeal to correct the sentence provided Baker with what he would have had if he had received effective representation during the plea stage, the right to be sentenced legally. His attorney‘s mistake in no way affected the constitutionality of the subsequent trial. The mistake deprived Baker only of the possibility to negotiate for the dismissal of the kidnaping charge, but as we have indicated, he cannot show that he was prejudiced by the loss of this speculative opportunity. Thus, his Sixth Amendment claim must fail.
B. Fundamental Unfairness
Baker argues that his resentencing to the 25-year term of imprisonment without eligibility for parole mandated by
This Court has rejected the “doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.” The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. In this case the court “only set aside what it had no authority to do and substitute[d] directions required by the law to be done upon the conviction of the offender.” It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.
Id. at 166-67, 67 S.Ct. at 649 (citations omitted).
Following Bozza, we have stated that a guilty prisoner cannot “escape punishment because the court committed an error in passing sentence.” United States v. Busic, 639 F.2d 940, 946 (3d Cir.1981) (citing Bozza, 330 U.S. at 166, 67 S.Ct. at 648). See also id. at 948 (“Nothing in the history or policy of the [Double Jeopardy] clause suggests that its purposes included protecting the finality of a sentence and thereby barring resentencing to correct a sentence entered illegally or erroneously.“). This principle is true even in cases like Baker‘s where the prisoner already has
Baker nevertheless contends that it is a violation of the Due Process Clause to correct even an illegal sentence when enough time has passed such that the prisoner has some real interest in expecting a certain release date or in fact has been released and faces reincarceration. See Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir.1999); DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir.1993); Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978). In Breest, the court noted that the power of a sentencing court to correct an invalid sentence “must be subject to some temporal limit.” Breest, 579 F.2d at 101. According to the court, “[a]s the months and years pass,” the expected release date acquires “a real and psychologically critical importance” to the inmate. Id. After a “substantial period of time” passes, “it might be fundamentally unfair ... to alter even an illegal sentence in a way which frustrates a prisoner‘s expectations [of release].” Id.
Baker‘s reasonable expectations could not have reached that “temporal limit” wherever it may be. Baker‘s reliance on his sentence could not have lasted even two years as he was sentenced on December 4, 1987, and the State moved on August 21, 1989, for leave to cross-appeal from the sentence. Further, he could not have had a clear “expectation of finality” when the State cross-appealed as the direct appeal process had not been concluded by that time. See United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980) (defendant “has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired“); State v. Rodriguez, 97 N.J. 263, 478 A.2d 408, 412 (N.J.1984) (“Since the underlying substantive convictions in this case were themselves the subject of attack on an appeal in which defendant sought their modification, no legitimate expectation of finality could
We realize that prisoners place enormous weight upon their hopes for parole or release. But Baker has not shown a substantial enough expectation of release to support a finding of a violation of his due process rights. While Baker relies heavily on DeWitt v. Ventetoulo that case is distinguishable as there, after a defendant was paroled, the court reimposed a sentence to correct an illegal order suspending a portion of his sentence.
It is also significant that Baker initiated the appellate process and was seeking a new trial by appealing. Thus, as the Appellate Division indicated on Baker‘s second appeal, his “own appeal prevented his convictions and sentences from being invested with finality.” State v. Baker, 636 A.2d at 564. Therefore, it is conceivable that if he had been successful on appeal and then had been convicted at a new trial, the court might have imposed a greater sentence on him than that it originally imposed. Id. While it is true that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), places some limitations on the enhancement of a sentence after a retrial, the case is not an absolute bar to such an enhancement. Thus, by appealing, Baker gambled that he would lose the advantage of the 27-year sentence with an 11-year period of parole ineligibility. He lost his gamble, though not in a way he could have anticipated when he appealed.
We ultimately are persuaded by the State‘s argument that it is proper that Baker serve at least the minimum sentence the Legislature intended for the crimes he committed. One month before Baker kidnaped and sexually assaulted the minor girl, the Legislature directed that any person who commits such an offense should serve at least a 25-year term of imprisonment without parole. We would thwart this legislative directive if we were to conclude that due process considerations require that Baker be allowed to
The State had the right to pursue an appeal of the illegal sentence, and Baker now is serving the sentence mandated for the crimes he has committed. The only possible relief that Baker could obtain from either this court or the district court on remand after further proceedings is that he be released unless the state court resentences him to an illegal sentence. See Orban v. Vaughn, 123 F.3d 727, 731 n. 1 (3d Cir.1997). Surely, only the most compelling circumstances could justify a federal court to grant the extraordinary relief of requiring a state court to impose an illegal sentence as a condition of holding a prisoner in custody. Those circumstances are not present here.
IV. CONCLUSION
We close with the following overview of this case. Baker was constitutionally convicted and sentenced to the minimum term for his offenses. In these circumstances, it is quite remarkable that he petitions for a writ of habeas corpus so that he can obtain an illegal result. We will not grant him such relief.
For the foregoing reasons we will affirm the order of September 24, 1997.
POLLAK, District Judge, dissenting:
I.
As the court‘s opinion makes plain, one who, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), mounts a challenge to a conviction and/or sentence on the ground of asserted ineffective assistance of counsel, must, in order to prevail, show that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” id. at 687, and (2) “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
I agree with the court‘s persuasive demonstration that Baker‘s “trial attorney‘s error with respect to his ignorance of the sentencing law has satisfied the first prong of the Strickland test.” However, given the procedural posture of this habeas corpus proceeding—in which we, as an appellate panel, are reviewing a district court denial of the writ based on pleadings and legal argument, no evidentiary record having been made in the district court—I do not feel that I can with entire confidence subscribe to the court‘s conclusion that Baker “has not met the second Strickland prong—a showing that there is a ‘reasonable probability that, but for’ the error, there might have been a different result.” The court‘s opinion argues with considerable force the proposition that, even if Baker‘s trial attorney had in 1987 been properly informed about the 1986 amendment of the statute governing sentence and had communicated that information to Baker, his client, the sentence ultimately imposed on Baker would not have been less severe than the sentence he now challenges. Very possibly so. But the court‘s argument, while long on advocacy, is somewhat short on factual infrastructure—and this is unsurprising, given that (1) no evidentiary record was made in the district court and (2) it does not appear that any of the several proceedings in the state courts focused systematically in some factually comprehensive fashion on the sentencing aspect of Baker‘s ineffective-assistance-of-counsel claim. Accordingly, the appropriate course for this court to pursue is, so it seems to me, the conventional course of remand for development of the facts.
The court eschews this course. The court states that “we will not remand so that the district court can preside over a charade in which witnesses testify about hypothetical conduct.” But characterizing the proposed district court inquiry as one
II.
If this case were to be remanded for further proceedings in the district court, I would think it proper that such further proceedings also encompass some inquiry into a facet of the ineffective-assistance-of-counsel issue which has not been addressed by the parties in briefing and arguing this appeal. I have in mind the question whether Baker was adequately advised by counsel who represented Baker in 1988, when, rather tardily, he undertook to file an appeal from his 1987 conviction. So far as I can determine from the materials available to us on appeal, it appears likely that appellate counsel, at the time Baker‘s appeal was perfected, was, like trial counsel a year before, unaware of the 1986 amendment of the sentencing statute. If that is the case, we have a second instance of ineffective assistance-of-counsel—one that would appear to be even more egregious than the first, since an additional year had gone by since the Legislature changed the governing law. And this putative second instance of ineffective-assistance-of-counsel may very well have been the factor which propelled Baker,
Conclusion
For the reasons given in Part I of this opinion, I dissent from the judgment of the court. Were this case remanded to the district court for the further proceedings contemplated in Part I, those further proceedings should, in my judgment, also entail inquiry into the issue identified in Part II.
Baker‘s unauthorized sentence to a term in conformity with the strictures of the 1986 amendment of the sentencing statute did not work a denial of Baker‘s substantive due process rights.