Hill v. Lockhart, 88-2237

• Decision Date: 31 January 1990
• Docket Number: No. 88-2237,88-2237
• Citation: 894 F.2d 1009
• Parties: William Lloyd HILL, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1009

894 F.2d 1009

William Lloyd HILL, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant.

No. 88-2237.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1989.

Decided Jan. 31, 1990.

Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellant.

Jack T. Lassiter, Little Rock, Ark., for appellee.

Before LAY, Chief Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, en banc.

ARNOLD, Circuit Judge.

William Lloyd Hill, a state prisoner serving a 35-year sentence, brings this petition for habeas corpus under 28 U.S.C. Sec. 2254. The District Court ¹ granted relief, ordering that Hill be released unless the State affords him a trial. A panel of this Court affirmed, and we then granted the State's petition for rehearing with suggestions for rehearing en banc, thus vacating the panel opinion.

We now affirm, adopting the reasoning contained in the panel decision. Hill v. Lockhart, 877 F.2d 698 (1989). The District Court did not abuse its discretion in hearing Hill's second habeas petition, because there had been no final determination on the merits of Hill's first petition. And the erroneous parole-eligibility advice given to Mr. Hill was ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rendering Hill's plea invalid and entitling him to a trial.

We are careful to note that not every instance of a lawyer's failure to inform a client accurately of parole eligibility will reach the level of a constitutional violation. As detailed in the panel opinion, in this case there is a reasonable probability that the result of the plea process would have been different but for the erroneous information:

Not only had Hill explicitly asked his counsel about the parole system in Arkansas, Tr. 23, but he had made clear that the timing of eligibility was the dispositive issue for him in accepting or rejecting a plea bargain. He told his attorney that he considered it no bargain to forego a trial unless his eligibility would be sooner than seven years, which he understood to be the time he could serve with commutation of a life sentence. Tr. 24-26. The Plea Statement bears the signature of Hill's counsel, immediately below the words: "His plea of guilty is consistent with the facts he has related to me and with my own investigation of the case." J.A. 57. Given the attorney's knowledge of his client's particular concern, a failure to check the applicable law was especially incompatible with the objective standard of reasonable representation in Strickland.

877 F.2d at 703.

In some situations incorrect advice about parole will be merely a collateral matter, not significant enough to justify habeas relief. A lawyer's incorrect guess as to the actual time of parole, for example, would probably fall into that category. But here the misadvice was of a solid nature, directly affecting Hill's decision to plead guilty. Hill's lawyer had died by the time of the evidentiary hearing in the District Court, thus making it easier for someone to fabricate what the lawyer said, but the District Court believed Hill, and we cannot say that this determination of credibility was clearly erroneous. For a situation with some similarity, cf. Blair v. McCarthy, 881 F.2d 602 (9th Cir.1989) (defendant not told of mandatory parole term to follow sentence of probation; defendant would have pleaded not guilty had he been told; guilty plea set aside on habeas).

We sustain the result reached by the panel, and the judgment of the District Court is

Affirmed.

BOWMAN, Circuit Judge, joined by JOHN R. GIBSON, WOLLMAN, and MAGILL, Circuit Judges, dissenting.

I respectfully dissent. The Court's holding that an admitted killer's first degree murder conviction must be set aside on his say-so that his now-deceased attorney's advice concerning parole eligibility misled him into accepting a plea bargain--one that clearly appears to have been in his best interests--is not required by the Constitution or by any decision of the United States Supreme Court. Today's holding forgoes objective analysis of Hill's options at the time of his plea bargaining in favor of slippery subjectivity. It opens the door to what may prove to be a flood of similar habeas claims. It represents a step I am not prepared to take.

Based on the facts as found by the District Court (which credited Hill's self-serving testimony), Hill's attorney advised him that, with good behavior, he could be eligible for parole after serving only six years of the thirty-five year sentence offered in the plea bargain. In reality, since Hill was a second offender, he could not become eligible for parole in less than eight years and nine months. In testimony the District Court accepted as true, Hill asserted that but for the erroneous parole eligibility advice from his attorney he would not have pleaded guilty and would have gone to trial, even though trial would have exposed him to a...