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January 31, 1989


The opinion of the court was delivered by: BRODERICK


 In this pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, petitioner James Johnson, who is currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania, alleges the following claims: (1) his plea of guilty was not entered knowingly and voluntarily due to the state court's failure to fully explain to him the elements of the crimes and the sentence which could be imposed; (2) his counsel advised him to enter a plea of guilty and guaranteed him that he would be sentenced to a maximum of five years imprisonment were he to plead guilty; and (3) his counsel was ineffective for failing to pursue his appeal in the state court system.

 On September 27, 1966, a robbery took place at a jewelry store at Chelten and Chew Avenues, Philadelphia, Pennsylvania. Police were summoned, shots were fired, and a civilian was wounded. On February 1, 1968, petitioner, represented by George A. Johnson, an Assistant Public Defender, entered a guilty plea before the Honorable Theodore B. Smith, Jr. of the Court of Oyer and Terminer in and for the County of Philadelphia, to the following charges: burglary, aggravated robbery, carrying a concealed deadly weapon, aggravated assault, and attempted murder. On March 28, 1968, Judge Smith sentenced petitioner to a total term of five to twenty years incarceration.

 Thirteen years later, on February 4, 1982, Mr. Johnson filed a petition under Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S.A. §§ 9541-9551, in which he contended his guilty plea was involuntary and that his failure to pursue an appeal of the plea was due to ineffective assistance of counsel. On September 28, 1982, a PCHA hearing was held before the Honorable Edward J Blake of the Court of Common Pleas, First Judicial District of Pennsylvania. Petitioner, represented by Harry Seay, Esq., court appointed counsel, chose not to adduce any additional testimony or evidence but, rather, submit the matter based on the record as it then stood. On January 20, 1984, Judge Blake denied the petition on the merits, finding that petitioner had entered his plea knowingly and voluntarily; that petitioner's counsel was not ineffective in advising petitioner to plead guilty; and that petitioner was not deprived of his right to appeal since the PCHA permitted petitioner to raise precisely the same issues which he could have raised on direct appeal.

 Petitioner then appealed the PCHA denial to the Superior Court of Pennsylvania which dismissed the appeal on March 6, 1985, on the ground that petitioner waived his substantive claims by his abandonment of the direct appeal. Petitioner's request for allowance of appeal to the Supreme Court of Pennsylvania was denied on January 7, 1986. Petitioner filed his petition for writ of habeas corpus on October 27, 1987. The matter was referred to a United States Magistrate who, on October 26, 1988, issued a Report and Recommendation.

 In his Report and Recommendation, the Magistrate preliminarily determined that the petitioner had, pursuant to 28 U.S.C. § 2254(b), exhausted all available state remedies. See Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). Moreover, while recognizing that the petitioner failed to comply with state appellate procedural requirements, see United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982), the Magistrate concluded that the record did not support a finding that the petitioner had "deliberately bypassed" the state courts. See Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837 (1963). Because the Third Circuit, in Diggs v. United States, 740 F.2d 239, 244 (3d Cir. 1984), held that the "deliberate bypass" standard of Fay v. Noia controls when a federal habeas court is confronted with a procedural default arising from a failure to take a direct appeal, the Magistrate found that petitioner's petition under 28 U.S.C. § 2254 was properly before the Court. See also Beaty v. Patton, 700 F.2d 110, 112-113 (3d Cir. 1983) (per curiam); Boyer v. Patton, 579 F.2d 284, 286-288 (3d Cir. 1978). Accordingly, the Magistrate proceeded to address the merits of petitioner's constitutional claims.

 The Magistrate found that petitioner's plea of guilty was entered intelligently and voluntarily and that Mr. Johnson fully understood the charges to which he was pleading guilty as well as the constitutional rights he was waiving as a result of so pleading. Moreover, the Magistrate declined to consider the petitioner's claim that his counsel was ineffective for failing to pursue his appeal on the ground that because there is no merit to petitioner's involuntary plea claim, counsel's performance can not be deemed constitutionally deficient for failing to appeal a meritless case. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Magistrate, therefore, recommended that the petition for writ of habeas corpus be denied.

 Petitioner thereafter filed timely objections to the Magistrate's Report and Recommendation. Pursuant to Local Rules of Civil Procedure 7(IV)(b), this Court is required to review the record and determine the issues de novo.

 As a general rule in dealing with the merits of a petition for habeas corpus, where there are material facts in dispute which if proven would entitle a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of the trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-313, 83 S. Ct. 745, 756-57, 9 L. Ed. 2d 770 (1963); Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987). However, "this is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing." Blackledge v. Allison, 431 U.S. 63, 80, 97 S. Ct. 1621, 1632, 52 L. Ed. 2d 136 (1977). Indeed, as the Third Circuit held in Mayberry v. Petsock, 821 F.2d at 185, "bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing." See also Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979).

 A review of the state court proceedings demonstrates that the petitioner was provided a full and fair evidentiary hearing in state court concerning the issues he now raises in his habeas petition. Indeed, as previously stated, a PCHA hearing was held in the Philadelphia Court of Common Pleas on September 28, 1982. The transcript of that hearing unambiguously demonstrates that the petitioner was afforded an opportunity to adduce whatever evidence he wished concerning his allegations. The transcript further reveals that the petitioner, while represented by counsel in which petitioner specifically voiced complete confidence, chose not to adduce evidence but, rather, was content to submit on the basis of the record. The following exchange took place between the petitioner, petitioner's attorney, Mr. Harry Seay, and the Court:

Mr. Seay: After discussions with Mr. Johnson, the petitioner in the matter at the bar of the Court, we are, subject to your Honor's approval, asking leave to submit the matter based on the Record as the Record stands now. That would include the Notes of Testimony and any attendant records from the Quarter Sessions file in Mr. Johnson's case; in addition to which I would ask leave of the Court to submit to the Court a memorandum of law in support of the Petitioner's petition with regard to those aspects raised on the Record.
Court: Mr. Johnson, you have confidence in your attorney in this matter, Mr. Seay?
Petitioner: Yes, sir.
Court: Are you satisfied that he has represented your best interests up to this point in this case?
Petitioner: Yes, I have.
Court: Do you understand what he has said to the Court here this morning?
Petitioner: Yes, your Honor.
Court: He is saying that you have before the Court a petition under the Post Conviction Hearing Act and he is saying the allegations you set forth in that petition, the things you say were in effect wrong and can be established by examining the record without any additional testimony and then it will be his job, and he will confer with you in this, to submit a memorandum of law and direct my attention to the particular part of the Record which he says establishes the claim that you and he make in your petition.
Do you understand that?
Petitioner: Yes, sir.
Court: Do you have any questions you want to ask the Court?
Petitioner: No, sir.

 Tr. 2-3. Based upon this record, we conclude that because the petitioner was afforded a full and fair evidentiary hearing during a collateral proceeding in state court, this Court is not required to hold an evidentiary hearing.

 We note further that based on the impressively thorough colloquy between the trial judge and both petitioner and his attorney as well as the explicit representations made by the defendant at the time he entered his guilty plea, the conclusory allegations raised by the petitioner in his habeas petition are wholly incredible. As the Supreme Court stated in Blackledge v. Allison :

The representations of the defendant, his lawyer, and the prosecutor at the original plea hearing, as well as any findings made by the judge accepting the pleas, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.

 431 U.S. 63, 73-74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977); see also Machibroda v. United States, 368 U.S. 487, 495-96, 82 S. Ct. 510, 514, 7 L. Ed. 2d 473 (1962) (§ 2255 petition); United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). Accordingly, we proceed to a de novo determination of the issues raised by the petitioner in his Objections to the Report and Recommendation of the Magistrate.

 As previously stated, petitioner alleges that his plea of guilty was not intelligently and voluntarily entered due to both the trial judge's failure to fully explain to him the elements of the crimes charged and the sentence which could be imposed as well as his counsel's advice to plead guilty and misrepresentation that, upon a plea of guilty, a maximum sentence of five years imprisonment would be imposed. In evaluating petitioner's claims, we note that the constitutional prerequisites for a valid guilty plea are substantially the same in federal and state courts. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); United States v. Trott, 779 F.2d 912, 914 n. 1 (3d Cir. 1985).

 Prior to accepting a guilty plea, a trial judge has a duty to make an affirmative showing that the plea is intelligent and voluntary. Boykin v. Alabama, 395 U.S. at 242, 89 S. Ct. at 1711. Indeed, the "long standing test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985) quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). A guilty plea may be constitutionally infirm if defendant failed to understand the constitutional rights he was waiving by pleading guilty or had an incomplete understanding of the charges lodged against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S. Ct. 2253, 2257 n. 13, 49 L. Ed. 2d 108 (1976). Moreover, a guilty plea gained through "coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." Boykin v. Alabama, 395 U.S. at 242-243, 89 S. Ct. at 1712; see also United States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987).

 The Supreme Court, in McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 1170, 22 L. Ed. 2d 418 (1969) held that the most efficient method of insuring the intelligent, voluntary nature of the guilty plea is through the colloquy between the trial judge, the defendant, and the defendant's attorney. The Court stated that such a colloquy is:

Designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, . . . to produce a a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. *fn1"

 Id. See also United States v. Allen, 804 F.2d 244, 247 (3d Cir. 1986). At a minimum, such a colloquy should establish that the defendant understood the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offense for which he is charged, and the permissible range of sentences. Boykin v. Alabama, 395 U.S. at 245 n.7, 89 S. Ct. at 1713 n. 7.

Court: Do you understand fully and completely that after I hear the evidence of these various crimes, or a summary, that on the burglary bill, to which you will have pleaded guilty and we have heard evidence on, that you can be ...

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