APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil Action No. 72-1049.
Van Dusen, Gibbons and Rosenn, Circuit Judges. Gibbons, C.j., dissenting.
VAN DUSEN, Circuit Judge.
Petitioner Booker appeals from the July 31, 1972 district court order which denied his petition for habeas corpus without a hearing. We affirm the order of the district court.
Booker is imprisoned for the murder of his wife. He pleaded guilty generally to this murder, and the three-judge court which accepted his plea determined, after a trial on the degree of guilt, that the murder was first degree. The court sentenced him to life. He appealed this sentence to the Pennsylvania Supreme Court and, while such appeal was pending, as a result of a joint petition filed by defendant's counsel and the district attorney, the case was remanded for an evidentiary hearing to consider petitioner's contentions that the guilty plea was invalid and that he had been denied his constitutional right to the effective assistance of counsel. Petitioner also filed while such appeal was pending a petition seeking relief under the Post-Conviction Hearing Act, which was consolidated for hearing with the remanded case. At this hearing, his contentions as to the voluntariness of his plea and the effectiveness of his counsel were rejected in an opinion by Judge Doty. See Commonwealth v. Booker, Opinion of 12/20/71 (C.P. Phila. Criminal Section, Dec. Term 1967 No. 1639). The Pennsylvania Supreme Court affirmed per curiam, 447 Pa. 587, 287 A.2d 899 (1972).
Booker then filed a petition in the district court for habeas corpus. The district court, "after careful and independent consideration of relator's petition, the state court records and after review of the Report and Recommendation of the United States Magistrate," adopted this report, which had concluded that the post-conviction hearing judge had reliably found the facts and correctly applied the law.
Early on the morning of October 23, 1967, Booker killed his wife by shooting three hunting arrows and two target arrows variously into her neck, left breast and right side. He subsequently wrote on a wall that he also tried to strangle his infant son, but revived him. Booker then called the police who arrived, found his wife's body, and took him into custody. Later that morning he made a statement to police relating the circumstances of the killing.
Two counsel were appointed for Booker, Abraham J. Brem Levy and Anthony Minisi. They obtained an offer from the district attorney's office that, in exchange for a guilty plea, the district attorney's office would certify the murder as second degree and recommend seven to fourteen years. Booker, however, refused to accept this arrangement and discharged the two attorneys. At his post-conviction hearing Booker stated that his reason for this action was his desire to present the defense of insanity to a jury.*fn1
Two new attorneys were appointed, Richard D. Atkins and Armand Della Porta (now Judge Della Porta). It is with respect to the conduct and advice of these men that Booker now petitions for relief. His central factual claims are, first, that these counsel believed, and, second, that they told him, that if he pleaded guilty he would be allowed to present evidence of diminished responsibility at the time of the killing and that this evidence would negate the intent necessary for a finding of first degree murder. The then-existing law, Booker argues, was clearly to the contrary. Therefore, because of this ignorance or gross misappraisal of Pennsylvania law, counsel were incompetent and did not render him effective assistance. United States ex rel. Green v. Rundle, 434 F.2d 1112, 1113 (3d Cir. 1970); United States v. Moore, 432 F.2d 730, 736-37 (3d Cir. 1970). On the same reasoning petitioner contends that their advice to him did not fall "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 770-71, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970),*fn2 and rendered his guilty plea unintelligent and void. See United States ex rel. Crosby v. Brierley, 404 F.2d 790, 797-98 n.19 (3d Cir. 1968).
At the time of trial in February 1970, the relevant law of Pennsylvania consisted of three decisions: Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966); Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967); and Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969). In Ahearn, the defendant had pleaded guilty to murder generally, and a judge subsequently determined that the murder was in the first degree. The Pennsylvania Supreme Court affirmed, in a reaffirmation of the M'Naughten Rule of distinguishing right from wrong and a rejection of the doctrine of diminished responsibility. The court held that an inability to control oneself, whether labeled "irresistible impulse" or "diminished responsibility," was legally insufficient to reduce first degree murder to second degree by negating any specific intent to kill. Indeed, the court ruled that psychiatric evidence was inadmissible unless offered to show insanity under the M'Naughten Rule. Ahearn was followed in Phelan. In Rightnour, the defendant's conviction by a jury of first degree murder was upheld despite the trial judge's refusal to allow a psychiatrist to testify about the defendant's state of mind, which was conceded not to meet the M'Naughten Rule.
It should be noted, however, that the affirmance in Rightnour was by an equally divided court. Thus, the state of the law regarding diminished responsibility was in something of a state of flux. In Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182 (1971), Ahearn was followed, again by an equally divided vote. Finally, Ahearn was overruled by Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972).
At the post-conviction hearing held in June 1971, before McCusker, Mr. Atkins indicated that he believed that evidence of diminished responsibility was admissible to negate the intent requisite for first degree murder. See PCHNT 43-49. He did not, however, indicate why he believed this to be so. We have not been able to find any direct support in the record for the finding of the post-conviction hearing judge that Atkins' belief was based on the 3-3 vote in Rightnour. No mention of these cases appears in the transcript of the hearing or in the transcript of the trial. It is also unclear -- and the judge made no finding on this question -- what he and his co-counsel told Booker on this subject. Atkins,*fn3 Booker,*fn4 and the Reverend Frederick Powers, Jr.,*fn5 a prison chaplain who attended a number of meetings of Booker and his counsel, were all unable to recall exactly what was said about the use of the evidence of Booker's diminished responsibility. They might have told Booker that he had an unquestionable right to present his evidence, or they might have told him only that they thought they had a reasonable chance of persuading the Pennsylvania courts to admit such evidence.
It is most instructive to elaborate on the reasoning of the post-conviction hearing judge before presenting our own basis for deciding this case. Having turned down the plea bargain, Booker had three options: plead not guilty; plead not guilty by reason of insanity; and plead guilty, but try to present evidence of diminished responsibility. An important factor in choosing among these options was that Atkins regarded the judge to whom Booker would have been assigned for jury trial as increasing considerably the likelihood of a conviction for first degree murder.*fn6 Paramount, of course, was the gruesome nature of the killing, amply demonstrated by a series of photographs taken by police of the dead wife's body with the arrows still in it. Therefore, while there was some evidence of provocation sufficient for establishing manslaughter,*fn7 a plea of not guilty to murder would have been extremely risky.
The major difficulty with an insanity plea was that Atkins and Della Porta did not believe the evidence was sufficient to meet the M'Naughten Rule.*fn8 The post-conviction hearing judge found that this assessment was reasonable and we agree. We note that at Booker's trial on degree of guilt, Dr. Louis C. Alikakos, the psychiatrist whose opinion of Booker was crucial to an insanity defense, would not state that Booker did not know right from wrong.*fn9 Unless Booker's evidence could meet the M'Naughten Rule, it would, under Ahearn and Rightnour, have been no more admissible before a jury than at a three-judge trial, following a guilty plea, on the degree of guilt. Consequently, the third option, which was chosen, seems preferable to the other two.
We need not, however, rely upon this line of reasoning to reach our decision. For present purposes we shall assume as true the factual contentions which Booker attempted to prove at the post-conviction hearing, even though the record does not unequivocably establish their correctness.*fn10 That is, we assume that Della Porta and Atkins told Booker that he could present psychiatric testimony on diminished responsibility. After having read the entire trial record carefully we are convinced that, whether or not the court should have been faithful to Ahearn and the other Pennsylvania Supreme Court cases, it did allow Booker to present such testimony on diminished responsibility.*fn11 The court permitted Dr. Alikakos to testify at length*fn12 with minimal restriction.*fn13 The court did not cut off Atkins when, in his closing argument, he clearly asserted that the evidence of diminished responsibility prevented a determination of first degree murder.*fn14 On the contrary, in a subsequent colloquy with Della Porta the court indicated its understanding of Atkins' argument.*fn15 The court reached a result unfavorable to Booker not because it failed to consider his defense, but rather because it did not accept the contention that the evidence established that relator had such diminished responsibility that it negated the intent required for first degree murder. That this was the court's reasoning is clearly demonstrated by, for example, its suggestion that Booker wrote the message about his son on the wall in a clever attempt to lay a foundation for a future insanity defense.*fn16
We cannot agree that the relator is entitled to an evidentiary hearing on this record and believe that the cases cited at page 2 of the dissenting opinion of Judge Gibbons are significantly different from this case. The December 20, 1971, opinion of the state court referred to at page 2 above recites that "the case was remanded by the Pennsylvania Supreme Court for an evidentiary hearing to consider the claims raised by the defendant, namely, whether his guilty plea was valid; whether he was deprived of his constitutional right to be represented by competent counsel." That court found, inter alia, at pages 4 and 6, respectively:
"Thus we conclude, and find as a fact, that the defendant entered his guilty plea knowingly, intelligently and voluntarily and such a plea was valid.
"Therefore, the only reasonable election for defendant and his counsel was to plead guilty to murder generally and present evidence which would convince a three-judge trial court or the Pennsylvania Supreme Court that defendant had a diminished responsibility at the time of the commission of the offense.
"We conclude, therefore, that under the facts and circumstances in this case there was some reasonable basis for the defendant to plead guilty to murder generally as he did. Therefore, we find as a fact that defendant was not deprived of his constitutional right to representation by competent counsel; on the other hand, his trial counsel were diligent and competent in their representation of him." (Emphasis in original.)
See 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963).
Under these circumstances, the following language of Mr. Justice Pitney in Frank v. Mangum, 237 U.S. 309, 333-34, 59 L. Ed. 969, 35 S. Ct. 582 (1915), seems particularly applicable:*fn17
". . . This does not mean that [the state court] decision may be ignored or disregarded. To do this. . . would be not merely to disregard comity, but to ignore the essential question before us, which is not the guilt or innocence of the prisoner, or the truth of any particular fact asserted by him, but whether the State, taking into view the entire course of its procedure, has deprived him of due process of law. This familiar phrase does not mean ...