Zilich v. Superint. Reid ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-30-1994
Zilich v. Superint. Reid
Precedential or Non-Precedential:
Docket 93-3459
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-3459
WAYNE ZILICH,
Appellant
v.
SUPERINTENDENT REID, CHARLES JOHNS
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D. C. Civil No. 90-167 Erie)
Argued August 11, 1994
Before: MANSMANN, COWEN and McKEE, Circuit Judges
(Opinion filed: September 30, 1994)
OPINION OF THE COURT
THOMAS S. WHITE, ESQ.
W. PENN HACKNEY, ESQ.
JAY J. FINKELSTEIN, ESQ. (ARGUED)
Federal Public Defender
113 West 9th Street
Plaza 9
Erie, PA 16501
Attorneys for Appellant
WILLIAM R. CUNNINGHAM, ESQ. (ARGUED)
District Attorney
Erie County
Erie County Court House
Erie, PA 16501
Attorney for Appellee
McKEE, Circuit Judge
The defendant appeals from the district court's denial of
his petition for a writ of habeas corpus under 28 U.S.C. §2254 in
which he challenges the validity of a guilty plea that he entered
in state court. Because we conclude that the unique
circumstances of this case require that the defendant be afforded
an opportunity for a hearing to resolve a factual dispute, we
will vacate the order of the district court denying the writ of
habeas corpus without a hearing and remand this case to the
district court for an evidentiary hearing.
I. FACTUAL AND PROCEDURAL HISTORY
Wayne Zilich was charged with numerous offenses in state
court in June of 1983 in connection with his alleged sexual
molestation and rape of his daughter who was then approximately
five and a half years old. On November 15, 1983, Zilich waived
his right to a jury trial and the case was assigned to an Erie
County Court of Common Pleas Judge who scheduled a bench trial
for March 6, 1984. Before the start of trial Zilich entered into
an oral plea agreement under which he agreed to plead guilty to
one count of indecent assault and one count of corruption of a
minor in exchange for the remaining charges being withdrawn.
During the resulting guilty plea colloquy Zilich affirmed that no
promise had been made as to the probable sentence of the court,
and that no promise or threats of any kind had been offered to
encourage him to plead guilty. Following the colloquy the plea
was accepted and a date was given for sentencing.
Before sentencing, however, Zilich filed a petition to
withdraw his guilty plea. In that petition he asserted his
innocence and alleged that he had entered his plea of guilty only
because his attorney had promised him a sentence of probation in
exchange for paying a $4,000 bribe to the trial judge. After the
defendant petitioned to withdraw his plea, trial counsel was
granted leave to withdraw, new counsel was appointed, and several
hearings were held in the Erie County Court of Common Pleas.1
During the various hearings, Zilich testified about
conversations he had with his trial attorney in which he had
purportedly been guaranteed probation in return for paying the
alleged $4,000 bribe to the judge. Zilich testified that he
agreed to pay his trial attorney $10,000 to represent him, and an
additional $4,000 for the bribe. Zilich also testified he had
made tape recordings of conversations with his trial attorney in
which the bribe was discussed.
During one of the hearings Zilich introduced the testimony
of a paralegal who had worked in the office of Zilich's trial
counsel. The paralegal testified that she had heard Zilich tell
1 In all, six hearings were held on Zilich's petition to
withdraw his guilty plea.
his attorney that he (Zilich) wished to withdraw his guilty plea,
that the attorney told Zilich he would take care of it, and that
the attorney guaranteed Zilich probation. She noted that this
guarantee surprised her because the charges were very serious.
She further testified that Zilich had paid his trial attorney
$10,000 to represent him, but that the attorney had subsequently
requested an additional $4,000.
Zilich also produced the testimony of his wife who testified
that she had overheard a conversation in the hallway of the
courthouse on the day of trial. According to her testimony,
Zilich's trial attorney told Zilich he would get probation if he
pled guilty. She added that during that conversation the attorney
told Zilich not to tell the judge that there was a plea bargain.
Additional portions of her testimony also corroborated prior
testimony that tape recordings had been made of conversations
between her husband and his attorney.2
Zilich also produced the testimony of Bradley Foulk, Esq.,
an attorney who had been associated with Zilich's trial attorney.
Foulk testified that on the day the plea was entered he overheard
trial counsel tell Zilich not to worry. He further testified that
he had no knowledge of any bribe or any allegations of a bribe,
but confirmed that Zilich had claimed to have made recordings of
conversations between himself (Zilich) and his trial attorney.
2
The evidence about these tape recordings was conflicting.
There was also testimony which tended to establish that these
tapes, if they had ever existed, had been lost. Still other
testimony challenged the existence of any such tapes.
During the course of the hearings, Zilich's trial attorney
took the witness stand and denied all of the defendant's
accusations.
Before the conclusion of the last hearing, the judge who had
accepted the guilty plea granted a defense motion for recusal and
the remaining hearings were held before a second judge. On June
24, 1985, the second judge granted Zilich's petition to withdraw
his guilty plea, however, the judge did not rule upon any of the
defendant's allegations. Instead, the judge granted the petition
solely because the defendant was asserting his innocence before
sentencing, and because the judge concluded that the prosecution
had not established substantial prejudice.3 Commonwealth v.
Zilich, No. 841 of 1983, (C.P. Erie, June 24, 1985).
On March 11, 1987, the Superior Court of Pennsylvania
reversed, reinstated Zilich's guilty plea, and remanded the case
to the common pleas court for sentencing. The Superior Court held
that the trial court had erred in ruling that the Commonwealth
had failed to meet its burden of establishing it would be
substantially prejudiced by a retrial. Commonwealth v. Zilich,
No. 00668 Pittsburgh, 1986 (Pa.Super., March 11, 1987). Thus,
neither court ever ruled upon the substance of Zilich's assertion
that he had tendered his guilty plea only because he believed he
would get probation. On remand Zilich was sentenced to three and
one-half to seven years imprisonment on the charges to which he
had plead guilty.
3
See Commonwealth v. Neely, 449 Pa. 3, 295 A.2d 75 (1972).
A. THE FEDERAL HABEAS PETITIONS
In May of 1990, Zilich filed a civil rights action in the
Western District of Pennsylvania and he thereafter filed a
petition for a writ of habeas corpus alleging, inter alia, that
he had entered his guilty plea only because of his attorney's
promise of probation in exchange for the alleged bribe, and that
the plea was therefore involuntary. Both matters were treated as
a habeas corpus petition. The district court denied relief
without a hearing and this appeal ultimately followed.4
The substance of the defendant's argument on appeal is that
the district court erred in denying his petition without a
hearing.
4
The district court referred the original petition to a
magistrate judge who thereafter filed a Report and Recommendation
on January 7, 1991, in which it was recommended that the writ be
denied because Zilich failed to exhaust his state remedies. On
March 12, 1991, the district court adopted the Report and
Recommendation, denied the petition for habeas relief and
recommended that a certificate of probable cause be denied.
Zilich then filed an appeal to this Court which entered an Order
on August 7, 1991, remanding the matter to the district court for
further proceedings.
On July 21, 1993, a Report and Recommendation was again
filed by the magistrate judge. In that Report the magistrate
judge concluded that, based upon his review of the transcripts
from the state proceedings, the guilty plea had been voluntarily
entered. The report recommended that the petition be dismissed
with no further evidentiary hearing. The district court adopted
the Report and Recommendation as its opinion and denied a
certificate of probable cause. Zilich filed an appeal from that
determination followed by a request and a supplemental request
for a certificate of probable cause. On February 17, 1994, we
granted Zilich's request for a certificate of probable cause.
II. DISCUSSION
A.
In Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991), we
summarized the scope of our review of a district court decision
denying a habeas petition without a hearing:
Our scope of review is limited as
we sit not to retry state cases de
novo but rather to examine the
proceedings in the state court to
determine if there has been a
violation of federal constitutional
standards. . . . Where, as here, a
district court has denied a
petition for habeas corpus without
holding an evidentiary hearing, our
review consists of a two-step
analysis. First, we must determine
whether the petitioner has alleged
facts that, if proved, would
entitle him to relief. If so, we
must then decide whether an
evidentiary hearing is necessary to
establish the truth of those
allegations.
923 F.2d at 291. (citations omitted). Our review of the district
court's decision here is plenary, as the dismissal of the habeas
petition was based on the state court record, and not upon
independent fact finding by the district court. Id. at n. 5;
Lesko v. Lehman, 925 F.2d 1527, 1536 (3d Cir. 1991).
The Commonwealth argues that the defendant has been afforded
an evidentiary hearing as the magistrate judge reviewed all of
the transcripts from the numerous hearings that occurred in state
court before recommending that the defendant's petition be
denied. However, it is undisputed that no fact finder has ever
entered any findings of fact regarding the defendant's
allegations that his guilty plea was induced by a promise of
probation in return for bribing the trial judge.
B.
The determination of whether a guilty plea is "voluntary"
for purposes of the U.S. Constitution is a question of federal
law, but the determination of the historical facts surrounding
the plea bargain is subject to the deferential "presumption of
correctness" of 28 U.S.C. §2254(d). Marshall v. Lonberger, 459
U.S. 422, 431, 103 S. Ct. 843, 849, 74 L. Ed. 2d 646 (1983).5
A habeas petitioner challenging the voluntary nature of his
or her guilty plea faces a heavy burden. The plea colloquy is
designed to uncover hidden promises or representations as to the
consequences of a guilty plea. It can hardly be gainsaid that
declarations made under oath ought not to be lightly cast aside.
Zilich testified during his plea colloquy that no promises of any
sentence and no "deals" had been made to induce him to waive his
right to trial and plead guilty. "[T]he representations of the
defendant, his lawyer, and the prosecutor at [a plea] hearing, as
well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations made in open court carry a
strong presumption of verity." Blackledge v. Allison, 431 U.S.
63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977).
Nonetheless, the Blackledge Court recognized that this burden is
5
The "presumption of correctness" will be addressed in
greater detail below at section "D".
not "invariably insurmountable." Id.,at 754, 97 S. Ct. at 1629-30.
A petitioner challenging the voluntary nature of a facially
valid guilty plea based on unfulfilled promises or
representations by counsel must advance specific and credible
allegations detailing the nature and circumstances of such
promises or representations. Lesko, 925 F.2d at 1537. A guilty
plea induced by promises that divest the plea of its voluntary
character is void. Machibroda v. United States, 368 U.S. 487,
493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473 (1962). See Heiser v. Ryan,
951 F.2d 559, 561 (3d Cir. 1991) (guilty plea not voluntary where
defendant's counsel threatened to withdraw if defendant did not
plead guilty); United States v. Marzgliano, 588 F.2d 395, 397-99
(3d Cir. 1978) (petitioner's guilty plea not voluntary where
defense counsel misled defendant about sentencing provisions of
the plea agreement); United States v. Valenciano, 495 F.2d 585
(3d Cir. 1974) (petitioner's guilty plea not voluntary where made
on basis on counsel's statement that two sentences would run
concurrently and court imposed consecutive sentences). This
fundamental rule is not altered where, as here, a defendant
alleges that he was expecting a certain sentence based upon his
own illegal conduct. Where surrender of a fundamental
constitutional right is concerned, our inquiry can not be focused
upon the "clean hands" of the defendant. Instead, we must focus
upon the "voluntariness" of the surrender.
Zilich has offered specific testimony that, if true, would
negate the voluntariness of his plea and establish that he pled
guilty only because of a belief he would receive probation in
return for waiving his right to trial. For purposes of ruling
upon his habeas corpus petition, we must take Zilich's factual
assertions in the light most favorable to him. Keller v.
Petsock, 853 F.2d 1122, 1128 (3d Cir. 1988). If his allegations
are proven, he will establish at a minimum that there were
representations made by his counsel that he would receive
probation in return for his pleading guilty and paying a bribe to
the judge. Whatever criminal consequences such a scheme would
hold for Zilich, the allegations, if true, would entitle him to
habeas relief under 28 U.S.C. §2254. Thus, we must decide if the
district court erred in denying Zilich an evidentiary hearing.
C.
Our inquiry begins with Townsend v. Sain, 372 U.S. 293, 312-
14, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770 (1963), in which the Supreme
Court wrote: "Where the facts are in dispute, the federal court
in habeas corpus must hold an evidentiary hearing if the habeas
applicant did not receive a full and fair hearing in a state
court, either at the time of the trial or in a collateral
proceeding." Townsend, 372 U.S. at 311. Here, the procedure
afforded defendant to resolve his allegations falls short of this
requirement. In United States v. Valenciano, 495 F.2d 585 (3d
Cir. 1974), we held that
Where the voluntariness of a plea is attacked
with an assertion that one's counsel or the
prosecutor, or both, made an out-of-court
arrangement or 'proposition' as to the
outcome of a sentence which differs from that
pronounced by the court, an evidentiary
hearing will ordinarily be necessary on a
2255 motion attacking the voluntariness of
the plea.
495 F.2d at 587 (citations omitted). The holding in Valenciano
has been extended to §2254 petitioners. See Lesko, 925 F.2d at
1539.
We are aware that Zilich was afforded numerous hearings in
state court, and a federal magistrate judge reviewed the
transcripts of those hearings before recommending against relief.
However, Zilich's claims cannot be resolved without a fact finder
determining credibility. Here the magistrate judge merely
reviewed transcripts of the various hearings which were held in
the Court of Common Pleas and made a recommendation to the
district court based upon that review. The district court then
adopted the magistrate judge's recommendation, and the findings
implicit within the recommendation, and denied relief based upon
the magistrate judge's Report and Recommendation. Under the
circumstances of this case, such a procedure does not meet the
standards of affording a "full and fair hearing." The Supreme
Court has previously stated, "Where an unresolved factual dispute
exists, demeanor evidence is a significant factor in adjudging
credibility. . . . [Q]uestions of credibility, of course, are
basic to resolution of conflicts in testimony." Townsend, 372
U.S. at 322. It is only by observing testimony that the
factfinder ". . . can be aware of the variations in demeanor and
tone of voice that bear so heavily on the listener's
understanding of and belief in what is said." Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564, 575, 105 S. Ct.
1504, 1512, 84 L. Ed. 2d 518 (1985). This is the very reason
appellate judges defer to the factual conclusions of a hearing
judge.
Face to face with living witnesses the
original trier of the facts holds a position
of advantage from which appellate judges are
excluded. In doubtful cases the exercise of
his [or her] power of observation often
proves the most accurate method of
ascertaining the truth. . . . To the
sophistication and sagacity of [the trier of
fact] the law confides the duty of appraisal.
Marshall v. Lonberger, 459 U.S. at 434, 103 S.Ct.
at 851. (citations omitted).
There cannot even be the semblance of a full
and fair hearing unless the state court
actually reached and decided the issues of
fact tendered by the defendant.
Townsend 372 U.S. at 313-314.
D.
Normally a state prisoner seeking federal habeas relief in
federal court must overcome a presumption that an adverse ruling
in state court was based upon an adverse credibility
determination by the state hearing judge. See LaVallee v. Delle
Rose 410 U.S. 690, 93 S. Ct. 1203, 35 L.Ed.2d. 637 (1973), and
Marshall v. Lonberger, 459 U.S. 422, 103 S. Ct. 843, 74 L. Ed. 2d
646 (1983). This is not such a case. Here, the state trial court
granted the requested relief based upon the defendant's assertion
of innocence. Accordingly, the presumption of correctness is
inapplicable. See Townsend, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d
770 (1963).
Similarly, under 28 U.S.C. §2254(d), findings of fact of
state courts are entitled to a presumption of correctness subject
to specific exceptions. See Marshall, 459 U.S. 422, 103 S. Ct.
843, 74 L. Ed. 2d 646 (l983). One of those exceptions is where the
merits of the habeas petitioner's claim were not resolved in the
state court proceeding. In that instance, the presumption of
correctness does not apply as there is nothing to which it can
attach. 28 U.S.C. §2254(d)(1); Lesko, 925 F.2d at 1540; Sullivan
v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983).
E.
The district court, by adopting the magistrate judge's
Report and Recommendation as its opinion, found that the "record
here is so complete, that there is no need for an additional
evidentiary hearing." Magistrate's Report and Recommendation of
July 21, 1993, at 11. The magistrate judge also concluded,
[A]dditionally, because it would appear that
the record does not substantially support the
petitioner's allegations that he pled guilty
because he had been assured of a probationary
sentence, his allegations here are meritless.
Id. We disagree. The district court relied upon the plea
colloquy in reaching its conclusion that Zilich's plea was
voluntary. See Magistrate Judge's Report, at 8, 9, 11. While
Zilich's responses to the questions posed by his attorney and the
district attorney during the colloquy appear to conclusively
negate Zilich's allegations in his habeas petition, total
reliance on the colloquy is misplaced under the circumstances
posed by this case.
The possibility exists that an inherent part
of the out-of-court understanding was that
appellant would respond negatively to an open
court inquiry as to whether promises had been
made.
Valenciano, 495 F.2d at 587. As noted above, the defendant has
offered testimony that this was the case.
Of course, we take no position as to the truth of the
defendant's allegations. Nor do we hold that every habeas corpus
petitioner is entitled to a hearing in federal court merely
because the petitioner has made certain allegations that, if
true, would entitle him or her to relief. As the Supreme Court
has instructed us
[T]here are times when allegations of facts
outside the record can be fully investigated
without requiring the personal presence of
the prisoner.
. . . But the specific and detailed factual
assertions of the petitioner, while
improbable, cannot at this juncture be said
to be incredible. If the allegations are
true, the petitioner is clearly entitled to
relief.
Machibroda v. U.S., 368 U.S. at 495 (1962).
Accordingly we hold that, because the merits of Zilich's
claim were not resolved in the state court, and because they
require credibility determinations that cannot be resolved by
review of the cold record, the district court must give him an
evidentiary hearing. Sullivan, 723 F.2d at 1084.6
6
Zilich contends that 28 U.S.C. §§2254(d)(1) and (d)(3)
require that the district court hold an evidentiary hearing when
the state court did not decide the issues of fact alleged by the
habeas petitioner. By finding that the district court erred by
not granting Zilich an evidentiary hearing, we do not hold that
those sections require an evidentiary hearing. We have
III. CONCLUSION
For the reasons stated herein, we will reverse and remand to
the district court for an evidentiary hearing on Zilich's claim.
previously indicated that the relationship between Townsend and
the §2254 exceptions is "still a murky one". Smith v. Freeman,
892 F.2d 331, 339 n. 13 (3d Cir. 1989). We do not now decide
whether the §2254 exceptions codify the Townsend standards.
Zilich v. Reid, No. 93-3459
Mansmann, J., concurring.
While I concur in the result, I do so with some
hesitation and concern. I find it inequitable that a
petitioner's challenge to the voluntary nature of his guilty plea
may rest on allegations that the plea was induced by a scheme to
bribe a judge. Further, I am troubled by the prejudice to the
victim and the prosecution that will inevitably result from the
delayed resolution of this case.
However, I am constrained by the language that the
United States Supreme Court has adopted in setting forth the
standard against which the consensual character of a plea must be
measured. Most recently, in Mabry v. Johnson, 467 U.S. 504, 104
S. Ct. 2543, 81 L. Ed. 2d 437 (1984), the Court stated:
"A plea of guilty entered by one fully aware
of the direct consequences, including the
actual value of any commitments made to him
by the court, prosecutor, or his own counsel,
must stand unless induced by threats (or
promises to discontinue improper harassment),
misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by
promises that are by their nature improper as
having no proper relationship to the
prosecutor's business (e.g. bribes)."
Id. at 509, 104 S. Ct. at 2547, quoting, Brady v. United States,
397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970)
(emphasis added), quoting, Shelton v. United States, 242 F.2d
101, 115 (5th Cir. 1957) (Tuttle, J., dissenting), reheard en
banc, 246 F.2d 571, rev'd on other grounds, 356 U.S. 26, 78 S.
Ct. 563, 2 L. Ed. 2d 579 (1958).
Thus, it appears that the Supreme Court has decided it
appropriate to grant broad protection to defendants who enter
guilty pleas, even those who allege knowing and voluntary
participation in egregious and illegal conduct. Since we are not
writing on a clean slate, I concur with the majority that Zilich
is entitled to an evidentiary hearing to test the voluntariness
of his plea.