Scarbrough v. Johnson

• Decision Date: 06 August 2002
• Docket Number: No. 01-3665.,01-3665.
• Citation: 300 F.3d 302
• Parties: Michael SCARBROUGH v. Philip JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 302

300 F.3d 302

Michael SCARBROUGH v. Philip JOHNSON, Appellant.

No. 01-3665.

United States Court of Appeals, Third Circuit.

Argued April 30, 2002.

Filed August 6, 2002.

Paul M. Petro (Argued), John C. Pettit, Office of the District Attorney, Washington, PA, Counsel for Appellant.

Salvatore C. Adamo (Argued), Philadelphia, PA, Counsel for Appellee.

Before: NYGAARD, ROTH, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

Petitioner Michael Scarbrough pleaded guilty to second degree murder in the Court of Common Pleas of Washington County, Pennsylvania in 1995 and was sentenced to life imprisonment. In obtaining a writ of habeas corpus he alleged ineffective assistance of counsel, contending that his attorney's advice as to future parole eligibility was inaccurate and, consequently, his guilty plea was invalid. We conclude that Scarbrough was correctly informed about the possibility of parole under Pennsylvania law during the state court proceedings. Accordingly, he was not misled and his plea was voluntary. We will, therefore, reverse the grant of habeas corpus by the District Court.

In October 1994, petitioner Scarbrough and two accomplices forcibly entered a home in Washington, Pennsylvania. Scarbrough shot and killed one person and the trio took jewelry from another. All three were charged with criminal homicide, conspiracy, robbery and burglary. The district attorney sought a first degree murder conviction and the death penalty for all defendants.

As the trial was about to begin, Scarbrough's two co-defendants decided to plead guilty and agreed to testify against him. The trial judge then conducted a hearing with Scarbrough, his counsel and the District Attorney. The judge's intention was to be sure that Scarbrough "understands what the plea offers [made to him] are so there is no mistake." Accordingly, the judge reviewed the homicide charges and explained in detail the various penalties. He informed Scarbrough that the penalty for first degree murder was "either a life sentence or a death sentence." As for second degree murder, "the Court has no discretion, it's an automatic life sentence."

Defense counsel added that the Commonwealth's most recent plea offer, made that morning, involved a "plea to Second Degree Murder, [the] penalty would be life imprisonment with a possibility of parole" and, if the prosecution requested, Scarbrough would testify against any remaining co-defendants and others. The sentences for the robbery, burglary and conspiracy charges would run concurrently. In other words, defense counsel concluded, "[t]here would not be any additional time. It would be a life sentence.... [N]othing ... would interfere with his ability to have a sentence commuted and eventually be paroled...."

The trial judge reminded Scarbrough that "there is no guarantee for — we do not handle paroles or anything of that nature, neither [does] the Court, nor the District Attorney. That falls within the Department of Probation and Parole and the governor as to whether or not they would parole you." The judge continued, "Now, years ago a life sentence meant you served maybe 17, 18 years and they would consider you maybe up for parole. Things have changed now. Honestly I can't tell you what would happen."

The judge reiterated that second degree murder called for a life sentence, although "[m]aybe they would or wouldn't consider something less than full life." He warned, however, that if Scarbrough were also convicted of burglary, robbery or conspiracy, "I'm sure there would be no possibility of parole. I can't guarantee you anything."

After the lengthy discussion, Scarbrough decided to reject the Commonwealth's offer. Later that afternoon, however, he changed his mind and accepted the plea bargain. During the plea colloquy in open court that followed, the district attorney said that "Second Degree Murder carries with it a life sentence with the possibility of parole." He recommended concurrent sentences for the other offenses so that "in the event there is at some point in time an opportunity for him to be considered for parole, these other charges would not in any way interfere."

The judge stated on at least three occasions during the colloquy that second degree murder carried a life sentence. Toward the conclusion of the proceeding, the court again emphasized that there was "no guarantee[ ] here on parole or anything like that. We have no jurisdiction over that." At each of these junctures, Scarbrough was asked whether he understood the implications of his plea, and each time the response was that he did.

When the Court pronounced sentence "for the remainder of his natural life," Scarbrough turned to his attorney and asked if he would never be eligible for parole. The judge replied,

"As I explained to him, that's up to the Department of Probation and Parole. [The district attorney] here said he was going to leave something in the notes here, he's not against the possibility of parole, and he would not thwart that in any way when that comes up, and he will leave a record here to so indicate."

... "I can't make any promises for the Parole Board."

Scarbrough said that that "explained it" and the Court then entered judgment.

One year later, Scarbrough filed for state post-conviction relief, asserting that his counsel had incorrectly advised him about parole eligibility. Both Scarbrough and his trial counsel testified at the hearing. The same judge who had conducted the plea colloquy presided over the post-conviction proceedings. At its conclusion he held, "this court has no reservation based upon the evidence and testimony in concluding that the primary and only motivating factor in petitioner's acceptance of the plea agreement was to escape the real possibility of a first degree murder conviction and death penalty."

The judge also noted that unlike the defendant in Meyers v. Gillis, 142 F.3d 664 (3d Cir.1998), Scarbrough did not and could not have alleged that he had acted in self defense. There were simply no mitigating circumstances in the case at hand where only Scarbrough and his confederates had guns. Based on the evidence submitted, the Court of Common Pleas denied post-conviction relief, finding "the plea ... neither unlawfully induced nor ... a product of ineffective counsel."

Scarbrough then appealed to the Superior Court of Pennsylvania, which agreed with Meyers v. Gillis that although defendants do not have a constitutional right to parole information, any such disclosure given must be accurate. In Meyers, the Court observed, counsel had told the defendant he would be eligible for parole in seven years.

The Superior Court acknowledged that Scarbrough's plea agreement included "life imprisonment with the possibility of parole." The court emphasized that unlike Meyers, however, Scarbrough had not been given any assurances, estimates or statistics as to the likelihood or timing of parole. The court continued that although parole might be unusual in these circumstances, it was not prohibited, and there was no requirement that Scarbrough be advised of the odds that such action might occur. Accordingly, the Superior Court concluded that Scarbrough's guilty plea was valid and, therefore, defense counsel could not be found to have been ineffective. The state supreme court denied review.

Scarbrough next filed pro se for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania.¹ Without holding an evidentiary hearing, the magistrate judge issued a report and recommendation, concluding that trial counsel, the district attorney and the state court had each "assured the petitioner that he would be eligible for parole at the discretion of the Pennsylvania Board of Probation and Parole when in fact, no such eligibility could reasonably exist, barring a gubernatorial commutation.... [B]ut for these assurances [Scarbrough] would probably not have pled guilty." Accordingly, the report concluded, the plea had not been entered with the effective assistance of counsel and the writ should issue. The district judge adopted the report and recommendation without comment.

The District Court's jurisdiction was based on 28 U.S.C. § 2254. We have jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291. On appeal from a grant of habeas corpus, this Court exercises plenary review of the District Court's legal conclusions. Orban v. Vaughn, 123 F.3d 727, 729 (3d Cir.1997). When the District Court does not hold an evidentiary hearing and engage in independent fact-finding, but rather limits the habeas evidence to that found in the state court record, our review is plenary. Yohn v. Love, 76 F.3d 508, 515 (3d Cir.1996). Additionally, a federal court must presume that state court findings of fact are correct, unless they are not fairly supported by the record. Meyers, 142 F.3d at 667.

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 1996, amended the standards for reviewing state court judgments in federal habeas corpus petitions. Under the AEDPA, a petitioner must establish that the state court proceedings:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Bell v. Cone, ___ U.S. ___, 122 S.Ct 1843, 152 L.Ed.2d 914 (2002); Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (discussing AEDPA); Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.2000).

In this case, Scarbrough claims that because his trial counsel gave him inaccurate information as to the possibility of parole, he pleaded guilty to second degree murder rather than going to trial, as he...