Filed: Jul. 25, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 7-25-1995 Hill v Beyer, et al Precedential or Non-Precedential: Docket 94-5129 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Hill v Beyer, et al" (1995). 1995 Decisions. Paper 195. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/195 This decision is brought to you for free and open access by the Opinions of the United States Court of
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 7-25-1995 Hill v Beyer, et al Precedential or Non-Precedential: Docket 94-5129 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Hill v Beyer, et al" (1995). 1995 Decisions. Paper 195. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/195 This decision is brought to you for free and open access by the Opinions of the United States Court of ..
More
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
7-25-1995
Hill v Beyer, et al
Precedential or Non-Precedential:
Docket 94-5129
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Hill v Beyer, et al" (1995). 1995 Decisions. Paper 195.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/195
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-5129
___________
DARRYL S. HILL
Appellant
vs.
HOWARD BEYER;
DEBORAH T. PORITZ,
ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY
___________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 89-cv-00323)
___________
Argued
May 2, 1995
Before: MANSMANN, SCIRICA and SAROKIN, Circuit Judges.
(Filed July 25, l995)
___________
Philip J. Moran, Esquire (Argued)
Moran & Haney
1230 Parkway Avenue
Suite 311
West Trenton, NJ 08628
COUNSEL FOR APPELLANT
Stephen G. Raymond, Esquire
Burlington County Prosecutor
Saralee Smith Michaud, Esquire (Argued)
Assistant Prosecutor Burlington County Prosecutor's Office
49 Rancocas Road
Mount Holly, NJ 08060
COUNSEL FOR APPELLEES
___________
OPINION OF THE COURT
1
__________
2
MANSMANN, Circuit Judge.
In this appeal from the denial of a petition for the
issuance of a writ of habeas corpus, brought pursuant to 28
U.S.C. § 2254, Darryl S. Hill denies that he knowingly and
voluntarily waived his constitutional right to a jury trial,
privilege against compulsory self-incrimination and right to
confront his accusers, when he entered a guilty plea to charges
of armed robbery, conspiracy to commit armed robbery and to the
felony murder of a police officer. Unfortunately, during the
plea colloquy in the New Jersey criminal proceeding the judge did
not apprise Hill that he would be waiving these rights. The
specific issue we must decide is whether Hill's plea nonetheless
comported with the Supreme Court's directive in Boykin v.
Alabama, 395 U.S. 238 (1969), that a guilty plea not be accepted
absent an affirmative showing that it was knowing and voluntary.
This matter is further complicated because the district
court declined to adopt the Report and Recommendation of the
magistrate judge who, having conducted an evidentiary hearing on
the issue of whether Hill knew of the constitutional rights he
was waiving at the time he entered his plea, concluded that his
plea was not knowing and voluntary. The district court did not
hold an evidentiary hearing but instead determined from its de
novo review of the record that despite the state court's failure
to address Hill's constitutional rights, Hill's plea complied
with the requirements of Boykin.
I.
3
Although the dispositive facts involve the plea
colloquy and discussions with defense counsel, we also set forth
the underlying events of the crime as they inform our decision.
On April 3, 1979, Hill, Ronald Evans, Craig Carter and
Michael Jones drove from Philadelphia, Pennsylvania to Hammonton,
New Jersey and committed an armed robbery at Raso's Liquor Store.
They stole approximately $4,000 in cash, a revolver, four
shotguns, a case of shotgun shells and several wristwatches. When
they fled the scene in a 1973 Ford Thunderbird, they were pursued
by Patrolman Daniel Chernavsky of the Medford Police Department.
During the chase, Michael Jones and Ronald Evans wounded
Patrolman Chernavsky. Shortly thereafter, when their car crashed
into a wall, Hill, Evans, Carter and Jones separated. Sergeant
Frank Fullerton of the Moorestown Police Department pursued Jones
and was shot twice in the stomach and once in the right shoulder.
Sergeant Fullerton died from these bullet wounds nearly a month
later on June 1, 1979. Hill was not present when the fatal shots
were fired, although he heard the shots.
On April 3 or 4, 1979, Hill, Jones, Carter and Evans
were arrested and charged with multiple counts of armed robbery,
conspiracy to commit armed robbery, and murder and/or felony
murder. Hill provided a statement regarding his participation in
the armed robbery. At the time, Hill was 18 years old with an
eleventh grade education, and read on the level of a seventh
grader. His only prior involvement with the criminal justice
system as an adult was in Philadelphia, where he was charged with
shoplifting, plead guilty, was fined $65 and was put on
4
probation, all without the aid of counsel. Shortly after Hill's
arrest, John L. Madden, Esq., was appointed as counsel for Hill.
Hill became frustrated that his case had not been set for trial
and wrote a letter to the Burlington County assignment judge
complaining of Madden's failure to meet and discuss the case with
him and to request that his case be moved along.
By letter dated October 11, 1979, to Hill's mother,
Madden introduced himself as Hill's appointed counsel and
discussed Hill's options of entering a guilty plea versus trial.
In this letter to Mrs. Hill, Madden informed her that the
prosecutor's office was adamant against a plea bargain because a
police officer had been killed. Madden opined that it was
useless for Hill to plead guilty without a recommendation on
sentence from the prosecutor and that Hill had little to lose by
standing trial given his admitted involvement in the armed
robbery and the application of the felony murder rule to Hill,
which would mandate a life sentence if Hill was convicted. Madden
also stated that he had requested that Hill's case be set for
trial.
Madden then wrote a letter directly to Hill on October
25, 1979, informing him that the prosecutor had refused to enter
into any type of plea bargain and would not conduct Hill's trial
until the trigger man had been tried. Madden indicated his
agreement with the prosecutor that Hill's trial should not
commence until after the trigger man was tried. Madden further
advised Hill to remain patient because his trial would probably
not occur for an additional two months. Expressing his
5
disappointment that Hill had felt compelled to write to the
assignment judge complaining of lack of contact with counsel,
Madden discussed his role as Hill's counsel. He indicated that
he was working on Hill's case with the same diligence and effort
he expended in all cases but did not have time to contact Hill
simply to state that he had nothing concrete to report; however,
he would visit Hill in jail well in advance of trial to discuss
the case and trial strategy. Madden further stated that he did
not want to proceed absent Hill's full confidence and
cooperation. Madden opined that Hill was not "in good shape"
given that the application of the felony murder rule would permit
a jury to find Hill guilty of first degree murder but that Madden
could present an argument to the jury that would preclude the
application of the felony murder rule to Hill. Madden requested
that all future questions about the case be directed to him via
letter given that Madden was quite busy and was usually out of
the office when Hill would be able to call him. Finally, Madden
reiterated that if Hill was dissatisfied with him, Madden would
attempt to get him another lawyer.
Two weeks later, on November 6, 1979, Madden informed
Hill by letter that his trial probably would not occur until
January of 1980 and that the prosecutor wanted Hill to testify
against the trigger man in exchange for a recommendation as to
Hill's sentence. Madden noted that although no definite numbers
had been agreed upon, the prosecutor hinted at a recommended
sentence of 20-25 years, which Madden believed was reasonable
given that the armed robbery charge alone authorized the
6
imposition of a maximum sentence of 30 years. Madden asked for
Hill's reaction to the possible 20-25 year sentence.
Hill immediately responded to Madden's letter,
expressing his view that the proposed sentence of 20-25 years
seemed inappropriate and inquiring as to whether Madden could
continue his efforts on the plea bargain to obtain a 10-15 year
sentence. Hill stated his agreement that it would be better to
wait until after the trigger man was tried. Madden received
Hill's response on November 10, 1979.
In the ensuing weeks, Hill apparently agreed to testify
against his co-defendants, causing the others to decide to plead
guilty. On January 28, 1980, the trial court conducted a hearing
to determine the admissibility of Hill's confession given a
question raised as to the authenticity of Hill's signature on the
Miranda form. Hill was present for this hearing. The court
ruled that Hill's confession was admissible.
On January 30, 1980, Hill entered a plea of non vult to
charges of felony murder, armed robbery and conspiracy to commit
robbery. The parties do not dispute that the plea colloquy
failed to apprise Hill of the constitutional rights delineated in
Boykin that Hill would waive by pleading guilty. The plea
colloquy between Hill and the New Jersey trial court in pertinent
part was as follows:
THE COURT: Darryl Hill, how old are
you?
HILL: Nineteen, sir.
THE COURT: Where do you live?
7
HILL: 1631 North Veston Street,
Philadelphia,
Pennsylvania.
THE COURT: How far have you gone in school?
HILL: Eleventh grade, sir.
. . . .
THE COURT: Do you understand, sir,
these are the crimes that
we are talking about?
HILL: Yes, sir.
THE COURT: Do you understand that
Mr. Madden tells me that
you wish to change your
not guilty plea to guilty
with respect to those
counts of those
indictments?
HILL: Yes, sir.
THE COURT: Is anyone forcing you to do this?
HILL: No, sir.
THE COURT: Other than what the two
attorneys have just
stated on the record has
anyone else promised you
any particular deals,
rewards or sentences for
pleading guilty?
HILL: No, sir.
THE COURT: Do you realize that for
these offenses you could
be subject to life
imprisonment plus one
hundred twenty-eight
years plus fines up to
twenty-six thousand
dollars?
HILL: Yes, sir.
8
THE COURT: Are you guilty of these
offenses?
HILL: Yes, sir.
THE COURT: You were in court with me
and heard the taped
confessions that were
read into the record
yesterday, were you not?
HILL: Yes, sir.
THE COURT: Were they essentially
true and correct?
HILL: Yes, sir.
. . . .
THE COURT: Allright, I find these
actions to be voluntary.
I will grant the defense
motion for retraction of
the not guilty pleas with
respect to the counts
enumerated only and in
[their] place instead
will enter pleas of
guilty.
(A 9-15). The state recommended a concurrent sentence on all
charges, which would impact Hill's eligibility for parole. Hill
was sentenced to concurrent sentences of life imprisonment for
felony murder and to 31-45 years for the remaining offenses.
9
Having exhausted his state remedies,1 Hill filed a
petition for the issuance of a writ of habeas corpus pursuant to
28 U.S.C. § 22542 in January of 1989. The district court ordered
an evidentiary hearing and referred the matter to a magistrate
judge to determine whether Hill knew of the constitutional rights
he was waiving by entering a plea of guilty. The magistrate
judge conducted the evidentiary hearing on March 22, 1993 at
which Hill testified on his own behalf and Madden testified for
the State.
Under oath Hill described his confusion at the time of
his plea hearing: that although many legal terms were spoken, he
1
Hill moved for, but was denied, reconsideration of his
sentence in the Superior Court of New Jersey, Burlington County,
Criminal Division. The Superior Court of New Jersey, Appellate
Division, affirmed the sentence on February 24, 1984 and the New
Jersey Supreme Court denied certification on May 22, 1984. On
January 23, 1985, Hill filed a petition for post-conviction
relief in the Superior Court of New Jersey, Burlington County,
Criminal Division, and was denied relief after a hearing on
November 19, 1986. The Superior Court of New Jersey, Appellate
Division affirmed the denial of post-conviction relief on
October 23, 1987. The New Jersey Supreme Court denied
certification on March 10, 1988.
2
Hill's original petition alleged that his plea was not
made knowingly and intelligently because the New Jersey trial
court failed to advise him of his constitutional rights pursuant
to Rule 11 of the Federal Rules of Criminal Procedure and his
counsel misrepresented to him the terms of the plea agreement. On
August 10, 1990, the district court denied the petition, ruled
that Hill's claim of ineffective assistance of counsel lacked
merit and noted that Rule 11 only governs proceedings in federal
court. Nonetheless, the court recognized the importance of the
constitutional rights at stake and granted Hill leave to amend
his petition to state an appropriate claim regarding his lack of
awareness of his constitutional rights at the time of his guilty
plea. On May 20, 1992, Hill filed an amended petition alleging
that his plea was not knowingly and intelligently made in
violation of his constitutional rights and that his counsel was
ineffective.
10
did not understand their meaning or the procedures of the court
and how they affected him. Specifically, Hill stated:
I mean, I've heard of Book em Dano. I've
heard of trial. I heard of you're under
arrest. I heard a lot of things, but when it
comes down to what those things define, or
are they or are they not rights that I have,
that understanding I did not have at the
time. . . .
(A 72-73). Hill further testified that Madden never advised him
of his rights to a trial by jury or to any other rights,
including the privilege against self-incrimination.
Madden then testified that it was his general practice
at his initial meeting with his client to review the indictment,
the offenses, the applicable penalties and plea bargaining. He
could not recall whether he specifically advised Hill of the
privilege against self-incrimination, the right to a trial by
jury and the right to confront his accusers. Madden testified:
I honestly do not know if I specifically
articulated to Mr. Hill that he had a right
to a jury trial.
. . . .
But I -- I can tell you as a . . . general
practice, that it -- I always discuss [rights
under the Sixth Amendment in terms of
confrontation,] with -- with clients, yes.
(A 94-96). Madden further testified that he apprised Hill of his
privilege against self-incrimination in conjunction with Hill's
option of testifying against the trigger man in exchange for a
plea bargain. Madden advised Hill to think long and hard about
the plea and to confer with his family especially since there
11
would be no specific recommendation as to sentence. Madden
further testified that at the time of the plea, he reviewed with
Hill the charges to which Hill was pleading guilty, the maximum
punishment for those charges and that he could not guarantee
Hill's sentence. Madden did not discuss with Hill his
constitutional rights; he stated that:
I was confident then, as I am now, that he
did understand that. If it turns out that
. . . it was also a requirement of the law,
retroactively, that he be given this kind of
exposition about additional aspects of his
constitutional rights, then, as I said before
I failed him.
(A 108).
The magistrate judge issued a Report and Recommendation
dated August 27, 1993, recommending that the district court find
that Hill sustained his burden of showing that his plea was not
intelligently and voluntarily made and, therefore, that his
constitutional rights were violated. The magistrate judge relied
on the following factors in concluding that Hill's plea was not
made intelligently and voluntarily:
1. Hill's uncontroverted testimony that he was not
aware of the rights he was waiving when he plead
guilty;
2. Hill's limited education;
3. Hill's prior criminal history that does not
indicate a familiarity with this area of the law;
4. Madden's testimony that he could not recall
advising Hill of his rights, but that he generally
discussed those rights with clients;
5. the trial judge's failure to apprise Hill of the
rights he was waiving by pleading guilty; and
12
6. a plea form that did not contain an exposition of
those rights.3
The district court issued a Memorandum and Order dated
February 2, 1994 finding that Hill's plea was voluntary and
knowing. The district court conducted a de novo review of the
written correspondence between Hill and Madden, which predated
the guilty plea; the January 30, 1980 plea hearing transcript;
and the transcript of the March 22, 1993 evidentiary hearing
conducted by the magistrate judge. After reviewing all of the
correspondence between Hill and Madden, the district court
focused on the October 26 and November 10 letters, concluding
that Hill was aware of his right to a jury trial and that he
voluntarily pursued a guilty plea. The district court also
determined that Madden's testimony further bolstered the fact
that Hill's guilty plea was voluntary and knowing. Finally,
although the district court recognized that the state court
failed to advise Hill of his constitutional rights, the district
court found that the colloquy, when coupled with Madden's
testimony and the written correspondence, evidenced that Hill's
plea complied with Boykin.
3
There was some confusion prior to the evidentiary
hearing as to whether Hill signed an LR-27 plea form or an LR-28
plea form, which superseded the LR-27 plea form. The LR-27 did
not contain a recitation of the constitutional rights that would
be waived upon entering a plea of guilty. Nor did the version of
the LR-28 in use in 1980. The LR-28 in use since 1984 which was
supplied to the district court, however, contains specific
references to the constitutional rights waived by entering a plea
of guilty -- the right to a trial by jury, the right against
self-incrimination and the right to confront witnesses. The
parties, however, stipulated to the magistrate judge that the
1980 LR-27 was the version of the plea form that Hill signed.
13
We review the district court's de novo review of the
record on which the magistrate judge issued a Report and
Recommendation, which included the transcript of the evidentiary
hearing at which both Hill and Madden testified. Our review of
the district court's legal conclusions is plenary; we review
factual findings under the clearly erroneous standard. Bond v.
Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989). Hill's appeal from a
final order of the district court is timely; thus, our
jurisdiction is premised on 28 U.S.C.A. §§ 1291 and 2253 (West
1993 and 1994).4
II.
In Boykin v. Alabama, 395 U.S. 238, 243 (1969), the
Supreme Court made clear that no criminal defendant should plead
guilty to a crime unless, and until, he has had explained to him
and understands all of his constitutional rights and protections,
including the privilege against compulsory self-incrimination
guaranteed by the Fifth Amendment, the right to trial by jury,
and the right to confront one's accusers. In Boykin the Court
4
On March 9, 1994, Hill filed a notice of appeal from
the district court's February 2, 1994 Memorandum and Order
"reversing" the Report and Recommendation, which was not an
appealable order. The district court issued a subsequent Order
dated March 17, 1994, denying the petition for habeas corpus and
certifying that there is no probable cause for appeal. This was
a final order from which an appeal could be taken. See Fed. R.
App. P. (4)(a)(2). We deemed Hill's notice of appeal as a
request for the issuance of a certificate of probable cause
pursuant to Federal Rule of Appellate Procedure 22(b), which we
issued on November 11, 1994 as the issue presented in Hill's
petition is not plainly frivolous. See generally Barefoot v.
Estelle, 463 U.S. 880, reh'g denied,
464 U.S. 874 (1983).
14
instructed judges to ensure that a criminal defendant had a full
understanding of what the plea connotes and its consequences by
"canvassing the matter" on the record, thereby providing an
adequate record for any review sought by the criminal defendant
and forestalling collateral attacks that seek to probe murky
memories. 395 U.S. at 243-44. It is exactly this situation that
presents itself here where the state complains of its "impossible
position of having to rebut countless allegations with little
else but the faded memories of busy trial attorneys who have
handled numerous cases since the original plea." Respondent's
Brief at 18. We recognize that the New Jersey trial court
practices5 have been revised since Hill's plea was entered in
1980. Nonetheless, regardless of the practices in place in 1980
when Hill entered his plea, the trial court was bound to comply
with the requirements of Boykin in accepting Hill's plea.
We have expressed concern regarding inexactitude by
trial courts in accepting guilty pleas:
[A]lthough starting from what superficially
would appear to be two different premises for
requiring an efficient plea process, it is
clear that both society and the individual
5
See generally Rule 3:9-2 of the New Jersey Rules
Governing Criminal Practice:
The court, in its discretion, may refuse to
accept a plea of guilty and shall not accept
such plea without first addressing the
defendant personally and determining by
inquiry of the defendant and others, in the
court's discretion, that there is a factual
basis for the plea and that the plea is made
voluntarily, . . . with an understanding of
the nature of the charge and the consequences
of the plea.
15
defendant have arrived at an identical
interest in the means by which their
respective purposes are to be achieved -- an
effective, thorough, complete and meaningful
plea proceeding. Imprecision in the manner
in which these proceedings are conducted
deserves the interests of both society and
the criminal defendant. On the one hand, a
failure to properly apprise the criminal
defendant of his rights leads to an
unknowing, unintelligent and involuntary
waiver. On the other hand, to the extent
that improperly administered pleas generate
and encourage appeals which are time
consuming, burdensome and difficult to
process, the societal interests in
rehabilitation, speedy justice, swift
punishment and deterrence are thwarted.
United States v. Carter, 619 F.2d 293, 296-97 (3d Cir. 1980). It
is incumbent upon any court accepting a guilty plea to ensure
that the criminal defendant has been apprised of and understands
the constitutional rights waived upon entry of a guilty plea:
[T]he hallmark of our criminal justice system
is fundamental fairness. Fundamental
fairness dictates that guilty plea
proceedings be undertaken sensitively.
Carter, 69 F.2d at 299. Such sensitivity requires that, in the
absence of testimony that a criminal defendant understands the
constitutional rights he waives upon pleading guilty, a state
trial court must engage in a colloquy on the record sufficient to
ensure that the defendant has been apprised of his constitutional
right to a jury trial, right to confront his accusers, and the
privilege against self-incrimination. Anything less fails to
ensure that a criminal defendant has been adequately informed of
his constitutional rights and renders the plea vulnerable to
collateral attack.
16
The failure to specifically articulate Boykin rights,
however, is not dispositive if the circumstances otherwise
establish that the plea was constitutionally acceptable. United
States v. Stewart, 977 F.2d 81, 85 (3d Cir. 1992), cert. denied,
113 S. Ct. 1433 (1993) (plea colloquy adequate despite trial
court's failure to enumerate Boykin rights given that those
rights were reviewed in prior plea colloquy that accrued only six
weeks earlier).6
The critical issue here is whether the circumstances
surrounding Hill's plea evidence that it was in fact knowing and
voluntary; what Hill understood from the words spoken to and
around him during court proceedings -- a question of fact. Hill
had the burden of persuasion to establish that his plea was
neither intelligent nor voluntary. Stewart, 977 F.2d at 85. The
district court determined that Hill failed to carry his burden in
large part based on its review of the record of the evidentiary
hearing and of the correspondence between Madden, Hill and Hill's
6
In addition to Stewart, the district court relied on
United States v. DeForest, 946 F.2d 523, 526 (7th Cir. 1991),
cert. denied,
502 U.S. 1118 (1992) (involving review of both pre
and post-Boykin guilty pleas for sentence enhancement purposes).
DeForest involved in relevant part the review by the Court of
Appeals for the Seventh Circuit of a pre-Boykin plea where the
trial judge failed to give the required constitutional warnings
but asked the defendant about his prior convictions, education,
mental state, the maximum penalty,and the facts of the offense.
See
Deforest, 946 F.2d at 524-25;
Stewart, 977 F.2d at 85. While
the plea colloquy at issue is factually similar to one of the
pre-Boykin cases discussed in DeForest, that plea was analyzed
under a pre-Boykin standard of constitutionality.
Id., 946 F.2d
at 525. The court of appeals in DeForest in fact expressly
declined to decide the adequacy of the one post-Boykin plea at
issue. See
id. at 527. Thus, DeForest is inapposite to the
analysis of the adequacy of Hill's post-Boykin plea.
17
mother from October 11, 1979 through November 10, 1979, all
predating Hill's plea by three months.
III.
A.
The district court reviewed the record developed before
the magistrate judge to determine whether to accept the
magistrate judge's recommendation that Hill's plea was not
knowing and voluntary. A district court may either accept the
recommendation of a magistrate judge or reject the recommendation
and reach an independent conclusion after hearing testimony and
viewing witnesses. Louis v. Blackburn, 630 F.2d 1105, 1110 (5th
Cir. 1980). The difficulty here is that the district court
decided not to defer to the credibility determinations implicit
in the magistrate judge's Report and Recommendation -- that
Hill's testimony that he did not understand his constitutional
rights at the time of the plea was believable.7
A district court may not reject a finding of fact by a
magistrate judge without an evidentiary hearing, where the
finding is based on the credibility of a witness testifying
before the magistrate judge and the finding is dispositive of an
application for post-conviction relief involving the
7
By Memorandum and Order dated February 2, 1994, the
district court took an action which it described as "revers[ing]"
the Magistrate Judge's Recommendation. A Magistrate Judge's
Report and Recommendation, however, is not something that is
reversible; it is adopted, rejected or modified by the district
court. 28 U.S.C.A. § 636(b)(1)(West 1993). See also supra at
n.4.
18
constitutional rights of a criminal defendant. See Blackburn,
630 F.2d 1105; see generally Grassia v. Scully,
892 F.2d 16, 19
(2d Cir. 1989) ("Had the district court rejected the magistrate
judge's conclusions regarding the credibility of the central
witnesses without hearing live testimony from those witnesses,
troubling questions of constitutional due process would have been
raised."). Further, the Supreme Court expressly noted concern in
this regard when construing the Federal Magistrates Act, 28
U.S.C. § 636(b)(1):
The issue is not before us, but we assume it
is unlikely that a district judge would
reject a magistrate [judge]'s proposed
findings on credibility when those findings
are dispositive and substitute the judge's
own appraisal; to do so without seeing and
hearing the witness or witnesses whose
credibility is in question could well give
rise to serious questions which we do not
reach.
United States v. Raddatz, 447 U.S. 667, 681 n.7, reh'g denied,
448 U.S. 916 (1980) (a district court may accept a magistrate
judge's recommendation without conducting a de novo hearing).
Our judicial system affords deference to the finder of
fact who hears the live testimony of witnesses because of the
opportunity to judge the credibility of those witnesses.
Blackburn, 630 F.2d at 1109. The magistrate judge believed Hill
when he said he did not understand his constitutional rights at
the time he entered his plea. The district court, however, made
credibility determinations without hearing the testimony of the
witnesses in direct contravention of the credibility
determinations implicit in the magistrate judge's Report and
19
Recommendation. Thus, the district court erred in conducting its
de novo review without hearing the testimony and viewing the
witnesses when it was reviewing questions of fact which
necessitated resolving credibility issues.
B.
While acknowledging Hill's testimony at that
evidentiary hearing that he did not know that he was waiving his
constitutional rights, the district court concluded that the
"sworn testimony of John L. Madden, Esq. -- an individual
intimately involved with the guilty plea of Darryl Hill --further
bolsters the fact that Mr. Hill's guilty plea was voluntary and
knowing." February 2, 1994 Memorandum and Order at 9. In so
finding the district court ignored the credibility determinations
made by the magistrate judge respecting Hill's testimony that he
did not understand his rights. The magistrate judge relied on
Hill's testimony that:
I understood . . . to the extent of what Mr.
Madden was attempting to do. I understood
that these were things that were in court
proceedings. But as to what my
constitutional rights were, what this -- that
this -- that this word trial, was something
that was not given to me what was mine. It
was a right that was mine, that was given to
me by the Constitution of the United States.
Not that Mr. Madden had the power to give me
that right.
I understand now, like I didn't then. That
my right to confront and cross examine my
accusers was something that Mr. Madden
couldn't give me, but it was a right that the
United States gave me.
20
(Tr. 62). And further,
As far as me knowingly, knowingly know that I
can walk into the courtroom and say, no I'm
not accepting this [plea], that I want a
trial. I want to take it to trial. I want
to take my chances at trial. I did not have
that knowledge at the time, that I had the
authority to do that.
And what trial consisted of.
(Tr. 92). The plea colloquy in fact buttresses this testimony
given that there is no mention of Hill's constitutional right to
a jury trial. See supra at 7-9.
The district court nonetheless relied on Madden's
testimony regarding his general practice of meeting with his
client to discuss the elements of the crime and all possible
defenses. Remarkably, the quoted passage in that regard ends
with Madden's statement that:
I honestly do not know if I specifically
articulated to Mr. Hill that he had a right
to a jury trial. We discussed trial, and --
and specifically when his trial would be in
relation to a -- the co-defendant.
(Emphasis added.) February 2, 1994 Memorandum and Opinion at 8.
Despite this statement, the district court accepted Madden's
testimony as to what Madden believed Hill understood regarding
his constitutional rights based on the correspondence between
Madden and Hill.
Madden testified:
Q: Now, there's several references in the
letters to Mr. Hill that you have, to a
trial.
Madden: Yes.
21
Q. Did Mr. Hill ever say that he didn't
understand that? What a trial was, what a
jury trial was?
Madden: No. And in fact, we wrote a letter
agreeing that it would make sense not to be
tried first. He -- my very, very strong
sense of the -- of the matter was that he
knew full well that he was awaiting trial, a
trial for murder.
. . . .
Q. Would you have -- was it your belief
that at the time of the plea, Mr. Hill knew
the rights that he was waiving?
. . . .
THE COURT: Did you believe he understood his
rights, and what he waiving?
Madden: Certainly. I -- I believed it then,
I continue to believe it today.
(Tr. 120-21). In accepting this testimony, the district court
implicitly rejected that portion of Hill's testimony that the
magistrate judge characterized as "Hill's uncontroverted
testimony that he was not aware of the rights he was waiving when
he plead guilty." Report and Recommendation at 15.
The district court also reviewed all of the
correspondence between Hill and Madden but specifically relied on
Madden's October 11, 1979 letter to Hill's mother, where he
explained that he advised Hill to go to trial as it would not do
Hill any good to plead guilty without a recommendation on his
sentence; Madden's October 25, 1979 letter to Hill, stating that
the state would not enter into any plea and discussing arguments
22
for trial; and Hill's November 10, 1979 letter to Madden, where
Hill stated:
I receive[d] your letter explaining the
prosecutors agreement with you concerning the
advantage of waiting until the trigger man[]
has his trial.
However, the proposed term of 20-25 years,
seems inappropriate. . . .
. . . .
I think a sentence of 10-15 years would seem
reasonable to me.
Is it possible for you to continue your
efforts on this plea bargain?
As I said before, I too think it would be
better to wait until after the "trigger["]
man gets his trial.
(Emphasis added). (RA 56-57). Conspicuously absent from the
district court's discussion, however, was Madden's November 6
letter to Hill where Madden raised the potential of a plea with a
recommendation on sentence of 20-25 years in return for Hill's
testimony against the trigger man.
The district court characterized Hill's November 10
letter as a response to Madden's "letter of October 25, 1979 - a
letter which stated that Mr. Hill's trial should be after the
trigger man's for tactical considerations." February 2, 1994
Memorandum and Opinion at 6. From this presumption, the district
court concluded that the November 10 letter evidenced that Hill
voluntarily pursued a guilty plea and possessed an intelligent
awareness of his rights and options. It is patently evident,
however, that Hill's letter dated November 10, 1979 is responsive
23
to Madden's November 6, 1979 letter, not his October 25 letter.
The November 6 letter is the only letter from Madden that
references the prosecution's discussion of a plea with a sentence
of 20-25 years in return for Hill's testimony against the trigger
man. When viewed in its proper context, Hill's November 10
letter is nothing more than a response to Madden's November 6
letter requesting Hill's thoughts on the plea option of 20-25
years. Thus, the district court's conclusion that Hill's plea
was voluntary and intelligent based on Hill's inquiry in the
November 10 letter as to whether Madden could continue his
efforts on the plea bargain was based on the erroneous finding
that it was in response to Madden's October 25 letter, which
unequivocally stated that there would be no plea and discussed
trial strategy.
IV.
We conclude that the district court erred by making
credibility determinations from its de novo review of the record
without the benefit of having viewed the witnesses' demeanor. As
well, the district court erred in basing its denial of the
petition in critical part on clearly erroneous factual
determinations.
Accordingly, we will vacate the district court's
judgment and remand to the district court for further review. The
district court must hold an evidentiary hearing if its review
involves resolving the credibility of witnesses who testified
before the magistrate judge; however, if the erroneous factual
24
determinations we discuss, concerning issues that do not call a
witnesses' credibility into question, were the dispositive
factors for the district court's denial of the petition, an
evidentiary hearing may not be required.
_________________________
25
SAROKIN, Circuit Judge, concurring and dissenting.
I agree with the majority's conclusion that "the district court erred by
credibility determinations from its de novo review of the record without the benefi
having viewed the witnesses' demeanor" and that many of the district court's factua
findings were clearly erroneous. Maj. Op. at [Typescript at 23]. However, I dis
because I disagree with the majority's resolution of the case. Instead of vacating
remanding to the district court for further review, id., I would reverse and remand
the district court to grant Hill's habeas petition. Based upon a review of the rec
believe that Hill has met his burden of showing that his guilty plea was not knowin
voluntarily entered. Specifically, I conclude that the factual findings of the dis
court were clearly erroneous, and I would adopt the factual findings and credibilit
determinations of the magistrate judge, who actually held an evidentiary hearing, i
support of my conclusion that Hill's petition should be granted.
The district court, based on its de novo review of the record, determined
Hill's guilty plea was constitutionally valid, even though the trial judge had fail
advise Hill of any of his Boykin rights and even though the magistrate judge, after
evidentiary hearing, concluded that Hill's guilty plea was constitutionally invalid
magistrate judge relied on: (1) Hill's uncontroverted testimony at the hearing that
not aware of the rights he was waiving when he pled guilty; (2) Hill's limited educ
(3) a prior criminal history which does not indicate a familiarity with this partic
area of the law; (4) Hill's former attorney's testimony that he cannot specifically
advising Hill of his rights, but that he generally discusses these rights with his
clients; (5) the state trial judge's failure to apprise Hill of the litany of right
would be waiving by pleading guilty; and (6) a plea form that did not contain an
exposition of these rights.
26
For reasons to be discussed, I conclude that the district court's factual
findings concerning the voluntariness of Hill's guilty plea were clearly erroneous.
Furthermore, I believe that the magistrate judge's factual findings and credibility
determinations, which were based on an evidentiary hearing, were essentially correc
that these findings lead to the inescapable conclusion that Hill's guilty plea is
constitutionally invalid.
The district court relied heavily on the correspondence between Hill and
attorney. However, the correspondence between Hill's former attorney and Hill make
mention of Hill's constitutional rights or that those rights are waived by pleading
guilty. Although the correspondence does discuss a hypothetical jury trial, it doe
specifically mention that Hill has the right to a jury trial and that this right is
by pleading guilty. Notably, at the time of the correspondence, Hill was reading a
seventh grade level. Moreover, even were we to find that an attorney's mere mentio
the word "jury" in correspondence with a defendant is sufficient to apprise a defen
his constitutional right to a jury trial and that this right is waived by pleading
under Boykin a defendant must understand and appreciate the entire panoply of right
he is about to waive by pleading guilty. Boykin, 395 U.S. at 243-44. In the
correspondence, there is no evidence of a waiver of the privilege against self-
incrimination or of the right to confront one's accusers. In fact, there is no evi
of knowledge or waiver of these two rights by the defendant anywhere else in the re
Furthermore, Hill testified at the evidentiary hearing that at the time h
entered his guilty plea he did not know of the constitutional rights he was waiving
pleading guilty. Hill's testimony that he was unaware of these rights went uncontro
Hill's former attorney testified at the hearing that his standard practic
to advise clients of their constitutional rights, but that he could not remember wh
he advised Hill of these rights. I conclude that the district court erroneously re
the attorney's testimony that he believed Hill was aware of his constitutional righ
27
notwithstanding that the attorney admitted he could not remember whether he advised
of his rights or that these rights would be waived by pleading guilty.
Additionally, the state trial judge failed to advise Hill of any of his
constitutional rights, and, thus, the plea colloquy does not establish that Hill kn
the constitutional rights he was waiving by pleading guilty. Therefore, the distri
court's reliance on the plea colloquy to establish that Hill knowingly and voluntar
waived his constitutional rights when pleading guilty was in error.
The following findings of the magistrate judge lend further support to th
conclusion that Hill's guilty plea was not knowing and voluntary. Defendant in the
instant case had no previous experience with the criminal justice system which woul
an independent awareness of the rights that were waived. Hill had never participate
jury trial, either as a defendant or as a witness. Hill was charged with several o
as a juvenile but was never advised of his constitutional rights in connection with
charges and never served a prison sentence. Hill's adult criminal record consisted
conviction for shoplifting for which Hill pled guilty; Hill was fined and received
year of probation. Hill was never advised of his constitutional rights in connecti
his conviction for shoplifting. Finally, the plea form signed by Hill did not cont
exposition of the constitutional rights he was waiving by pleading guilty.
In sum, after a careful examination of the record, I am firmly convinced
the district court's findings concerning the voluntariness of Hill's guilty plea we
clearly erroneous. I believe that Hill has sustained his burden of showing that he
neither aware of nor understood the constitutional rights which he waived by pleadi
guilty, and, thus, his plea was not knowing and voluntary and is invalid. As the
magistrate judge in the instant case recommended, Hill's guilty plea and conviction
be set aside, and the case remanded to the state court to afford Hill the opportuni
plead anew. A further hearing before the district court would serve no purpose bec
all of the relevant facts have been presented and appropriate findings made therefr
28
29
