On Appeal from the United States District Court for the Middle District of Pennsylvania, Civil Action No. 88-0673.
Gibbons, Chief Judge, Seitz and Greenberg, Circuit Judges.
This matter is before us on appeal from an order of June 3, 1988, denying the petition of Jeffrey Nead Ross for habeas corpus relief under 28 U.S.C. § 2254 on the ground that he has failed to exhaust available state remedies. Our review is plenary. Chaussard v. Fulcomer, 816 F.2d 925, 927 (3d Cir.), cert. denied, 484 U.S. 845, 108 S. Ct. 139, 98 L. Ed. 2d 96 (1987).
These are the facts. Ross was indicted for murder in Dauphin County, Pennsylvania. Although he originally pleaded not guilty, on June 23, 1980, on the eve of trial, while represented by an attorney, he changed his plea to guilty in the Dauphin County Court of Common Pleas. The following day he unsuccessfully sought to withdraw the plea. The judge then conducted a hearing to determine the degree of guilt and found Ross guilty of murder in the second degree and sentenced him to life imprisonment. Ross appealed to the Supreme Court of Pennsylvania, which affirmed his conviction in a reported opinion. The court indicated that Ross claimed his plea of guilty was not voluntarily entered and that the trial court erred in denying his request to withdraw it. The Supreme Court held that the claim of involuntariness was "refuted by the record" and that the request to withdraw the plea after dismissal of "numerous key Commonwealth witnesses in reliance on the plea" was properly denied. Thus the judgment was affirmed. Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982).*fn1
Ross subsequently filed a petition in the Court of Common Pleas of Dauphin County under the Pennsylvania Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. (Purdon 1982) (now superseded). In his brief on this appeal he characterizes the claims he made as follows:
Specifically he claimed his plea of guilty had been unlawfully induced and that he was denied his constitutional right to representation by competent counsel. The facts alleged in support of his claims, both in the pro se petition and the counselled amendment thereto, included trial counsel's advice that trial by jury would result in the death penalty and trial counsel's failure to vigorously pursue the petition to withdraw the guilty plea. It was alleged that trial counsel did not spend sufficient time with petitioner to be able to adequately explain to the court the reasons for withdrawal of the plea nor were adequate legal arguments prepared in support of the withdrawal request.
The respondents make no exception to this characterization.
On June 23, 1985, the Common Pleas judge rendered an opinion reading in germane part as follows:
Mr. Ross's petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., raises eight issues, seven of which deal with the voluntariness of his plea. Since this matter has been finally litigated, 42 Pa.C.S.A. § 9544(a), petitioner is not eligible for relief. 42 Pa.C.S.A. § 9543(4). The remaining issue, trial counsel's alleged ineffectiveness for not filing pre-trial motions, is absolutely frivolous because the record includes an Omnibus Pre-Trial Motion filed on behalf of petitioner.
Thus, the judge denied the petition without a hearing. Ross did not appeal from the order denying his state petition, an omission he attributes to "faulty advice from 'jail house lawyers.'"
On May 4, 1988, Ross filed the petition under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Pennsylvania which has led to this appeal. This petition was referred to a magistrate who in his report and recommendation indicated that:
The petitioner filed the present petition for writ of habeas corpus setting forth the following grounds for relief: (1) His conviction was 1. 'obtained by a plea of guilty which was not made voluntarily with understanding of the nature and consequences'; and (2) 'Trial counsel was ineffective.' Id. at pp. 4, 5, paras. A, B. In connection with the latter ground he states that by entering the plea he was 'covering' for one Edrington and for that reason, wanted to ...