Heiser v. Ryan

• Decision Date: 13 December 1991
• Docket Number: No. 90-3434,90-3434
• Citation: 951 F.2d 559
• Parties: Steven Anthony HEISER, Appellant, v. Joseph RYAN, Warden, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 559

951 F.2d 559

Steven Anthony HEISER, Appellant, v. Joseph RYAN, Warden, Appellee.

No. 90-3434.

United States Court of Appeals, Third Circuit.

Argued Aug. 12, 1991.

Decided Dec. 13, 1991.

Thomas S. White (argued), Acting Federal Public Defender, Pittsburgh, Pa., for appellant.

Robert E. Colville, Dist. Atty., Maria V. Copetas (argued), Asst. Dist. Atty., Pittsburgh, Pa., for appellee.

Before COWEN and NYGAARD, Circuit Judges, and POLLAK, District Judge ^*.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Steven Heiser has waited more than eleven and one-half years for a Pennsylvania state court to hear his motion to withdraw a guilty plea. In addition, four years have passed without a hearing or ruling by Pennsylvania on Heiser's Pennsylvania Post Conviction Hearing Act ("PCHA") petition, which claims that his trial counsel coerced his guilty plea and that his plea was involuntary.

Heiser filed a habeas petition contending that this post-verdict delay violated his due process rights and that his guilty plea was neither knowing nor voluntary. The district court denied Heiser's habeas petition without a hearing. We exercise plenary review of the district court's decision. Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir.1991). We will reverse and remand with instructions that the district court hold an evidentiary hearing on Heiser's allegations.

I.

In 1979, Heiser shot and killed the proprietor of an antique store he was robbing. The Commonwealth of Pennsylvania charged him with murder, robbery and some other charges. The Commonwealth filed notice that it intended to seek the death penalty. In September 1979, during the second day of a jury trial before the Allegheny County Pennsylvania Court of Common Pleas, pursuant to a plea agreement Heiser changed his plea to guilty of second degree murder. Heiser later pleaded guilty to the remaining charges.

In December 1979, while testifying against his co-defendant, Heiser told the judge, who also presided at the trial Heiser truncated by his plea, that he wanted to withdraw his guilty plea, plead not guilty and be tried. In January 1980, the court sentenced Heiser to life imprisonment on the second degree murder charge and a consecutive term of five to ten years on the robbery charge.

In February 1980, Heiser's newly appointed attorney filed a motion under Pa.R.Crim.P. 320 to withdraw his guilty plea. The court indicated that, although filed after sentencing, the motion would be reviewed under the more lenient pre-sentencing standard because Heiser requested to withdraw his plea before he was sentenced. The trial judge died in 1982.

In 1987, Heiser filed a petition under the PCHA, 42 Pa.C.S.A. § 9541, et seq., alleging that his guilty plea was not knowing, among other things, because his counsel failed to adequately explain the elements of the charges against him, and that his guilty plea was involuntary because his trial counsel threatened to withdraw from the case if Heiser did not plead guilty. Because the Pennsylvania courts could not locate a transcript, the court postponed hearing Heiser's motion to withdraw his guilty plea. The transcript is still missing; and Heiser still awaits a hearing on his motions.

In February 1989, Heiser filed a pro se petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. Heiser contended that his due process rights had been violated by the extreme delay. After the district court granted Heiser leave to amend his habeas petition, he further alleged that his guilty plea was not knowing and voluntary because, among other reasons, his counsel threatened to withdraw if Heiser did not plead guilty.

The district court properly excused Heiser's failure to meet the exhaustion of state court remedies requirement of 28 U.S.C. § 2254(b) because of the inordinate delay by the state court. No one challenges that ruling. The district court denied Heiser's habeas petition on the merits without a hearing. Heiser appeals that decision.

II.

Where the district court denies a habeas petition without an evidentiary hearing, we engage a two-step analysis. Zettlemoyer, 923 F.2d at 291 (citing Smith v. Freeman, 892 F.2d 331, 338 (3d Cir.1989)) (other citations omitted). First, we decide whether Heiser's allegations, if true, would entitle him to relief. Id. If so, we must determine whether Heiser is entitled to an evidentiary hearing to prove those allegations. Id.

A.

Heiser contends he would have been allowed to withdraw his plea for any one of several reasons. First, Heiser argues his guilty plea was coerced by his attorney's threat to withdraw if Heiser did not plead guilty. Because a guilty plea waives the constitutional right to a jury trial, the right to confront accusers, and the right against self incrimination, it must be a "knowing, intelligent act," that is "the voluntary expression of [the defendant's] own choice." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). "Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Thus, a guilty plea is void if induced by threats which strip it of a voluntary nature. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 511, 7 L.Ed.2d 473 (1972).

A threat by a defendant's attorney to withdraw from the case if the defendant does not plead guilty may render a guilty plea involuntary. Downton v. Perini, 511 F.Supp. 258, 259, 264-66 (N.D.Ohio 1981). This is true notwithstanding the mitigating effect of an attorney's assurance that new counsel would be appointed if the defendant insisted on proceeding to trial. Iaea v. Sunn, 800 F.2d 861, 866-68 (9th Cir.1986). Likewise, if an attorney threatens to withdraw to prevent a defendant from changing his mind about pleading guilty and backing out of a plea bargain, the plea could be rendered involuntary. United States v. Estrada, 849 F.2d 1304, 1305-06 (10th Cir.1988). See also Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) and Commonwealth v. Velasquez, 437 Pa. 262, 263 A.2d 351 (1970) (guilty pleas rendered involuntary because they were entered as a result of counsel's threat to withdraw).

A defendant faced with a critical decision of such dire consequences as a plea of guilty will assuredly rely heavily upon advice of counsel. We hold that if Heiser's trial counsel threatened to withdraw from the case unless Heiser pleaded guilty, then his plea is involuntary, and he has met his burden on the first Zettlemoyer step. The remaining question is simply whether in Heiser's case, an evidentiary hearing is necessary to decide this and his other allegations.

B.

Heiser contends that a hearing is indeed necessary. We agree. The district court reviewed the transcript of the colloquy for Heiser's guilty plea on the murder charge. This is not enough. The guilty plea colloquy between the defendant, the judge and the defense counsel is "designed to assist the district court in making the constitutionally required determination that a defendant's guilty plea is truly voluntary, ... [and] to produce a complete record at the time the plea is entered of the factors relevant to the voluntariness determination." McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969).

The district court determined that the plea colloquy met all of the requirements of Pa.R.Crim.P. 319 and demonstrated that Heiser "was advised of the possible range of sentences, the elements of the offense, and he affirmatively stated that he was satisfied with the manner in which his counsel had represented him and that there were no secret promises or coercions made to him." (Magistrate's report of 12-1-89, adopted by the district court). The district court apparently determined that no evidentiary hearing was required in the district court because "the averments advanced by the petitioner are simply belied by the record of the colloquy." Id.

We believe this was improvident for two reasons. First, because the district court must hold an evidentiary hearing when a habeas petitioner's factual claims were not given a full and fair hearing or otherwise adequately developed or resolved in the state courts. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See also 28 U.S.C. § 2254(d). Heiser's claims were not given a full and fair hearing in the state courts. Indeed, no state court evidentiary hearing was ever held, either for Heiser's motion to withdraw his guilty plea or his PCHA petition, on Heiser's allegations that his guilty plea was coerced. Thus, Heiser's claims were neither developed nor resolved in the state courts and the federal court must do so.

Moreover, no one conducted fact finding at Heiser's guilty plea hearing. Heiser did give yes-and-no answers to broad and general questions whether the guilty plea was his own decision, or was the product of force or threats. This without more is usually sufficient. But for Heiser's allegations of coercion, "the material facts were not adequately developed at the state-court [plea] hearing," and "the fact finding procedure employed by the state court [at the plea hearing] was not adequate to afford a full and fair hearing." Townsend, 372 U.S. at 313, 83 S.Ct. at 757. See also 28 U.S.C. § 2254(d)(2), (3), (6).

If Heiser can prove that his trial counsel threatened to withdraw if he did not plead guilty, such proof is sufficient to rebut the "strong presumption of verity," Lesko v. Lehman, 925 F.2d 1527, 1537 (3d Cir.1991), attached to his "solemn declarations," Id., at the plea hearing that his guilty plea was voluntarily entered and free from coercion. See Downton, 511 F.Supp. at 259 (proof that trial counsel threatened to withdraw if defendant did not plead guilty to second degree murder rebutted the presumption of truth inherent in the...