Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 89-cv-00323).
Before: Mansmann, Scirica and Sarokin, Circuit Judges.
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, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (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.
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 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 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 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?
THE COURT: Where do you live?
HILL: 1631 North Veston Street, Philadelphia, Pennsylvania.
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?
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?
THE COURT: Is anyone forcing you to do this?
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?
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?
THE COURT: Are you guilty of these ...