by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit took the unusual step of ordering the U.S. District Court for the Western District of Pennsylvania to hold an evidentiary hearing on state prisoner Khamal Fooks’ 28 U.S.C. § 2254 petition for writ of habeas corpus.

Fooks pleaded guilty to charges that included third-­degree murder and was sentenced to 20 to 40 years in prison. He subsequently petitioned for collateral relief in state court, alleging ineffective assistance of counsel (“IAC”). According to Fooks, his attorney misadvised him that he would be eligible for parole in 10 years, and but for that erroneous advice, he would have opted for a trial.

The state superior court denied Fooks’ petition without a hearing, concluding that even if Fooks proved his claim, he was not entitled to relief. After the Pennsylvania Supreme Court denied review, Fooks sought federal habeas relief on his IAC claim. The District Court, without holding a hearing, denied Fooks’ petition, holding that the state superior court’s decision was neither contrary to clearly established federal law nor an unreasonable application thereof. Fooks timely appealed to the Third Circuit.

The Court noted that because the District Court denied relief without holding an evidentiary hearing, the District Court’s denial is reviewed de novo. Branch v. Sweeney, 758 F.3d 226 (3d Cir. 2014). The Court further noted that the denial without an evidentiary hearing is reviewed for abuse of discretion. Id.

The Court stated that since the state court denied Fooks’ petition on the merits, he could obtain federal habeas relief only if the state court’s decision was contrary to clearly established federal law or unreasonably applied that law. § 2254(d)(1). Neither was true in the case, according to the Court.

If defense counsel misadvises his client regarding parole eligibility, he performs deficiently. Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998). But nothing in the record supported Fooks’ claimed IAC. However, the Court stated that was because Fooks was never given an opportunity to fully develop the record by either the state or federal court, despite the fact he alleged facts that, if established as true, would entitle him to federal habeas relief, the Court explained.

The Court stated that both “statute and precedent limit a habeas petitioner’s ability to get an evidentiary hearing.” It first addressed the statutory limit. While a federal District Court may not hold an evidentiary hearing where a petitioner “has failed to develop the factual basis of a claim in State court proceedings,” § 2254(e)(2), Fooks did not fail to develop that factual basis because he was never afforded the opportunity to develop the factual basis at all, according to the Court. Fooks promptly sought “an evidentiary hearing in the manner required by state law,” Morris v. Beard, 633 F.3d 185 (3d Cir. 2011), but the state court simply refused. As such, the Court reasoned that Fooks “is asking for his first bite at the apple, not a second.” Thus, the Court ruled that § 2254(e)(2)’s bar does not apply.

The Court then addressed the precedent limit. In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that review under § 2254(d)(1) is “limited to the record that was before the state court that adjudicated the claim on the merits.” The Third Circuit subsequently concluded that “district courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d).” Brown v. Wenerowicz, 663 F.3d 619 (3d Cir. 2011). But there’s an exception when the state court denies a petitioner’s hearing because it believed the petitioner would lose even if the allegations were treated as true. In that situation, the Court explained that “Pinholster’s bar does not apply if that ruling was unreasonable as a matter of clear federal law.” See Jordan v. Hepp, 831 F.3d 837 (7th Cir. 2016).

Turning to the present case, the Court determined that Fooks meets this exception. Unlike the situation in Wenerowicz, the state court had incorrectly concluded that, even if Fooks proved his claim, he would not have been entitled to relief. The Court explained that Fooks alleged facts that would make his lawyer’s conduct objectively unreasonable under Strickland and the state’s contrary ruling unreasonable under § 2254(d)(1).

Failing to properly advise a defendant about parole eligibility which, in turn, causes the defendant to plead guilty, can be a denial of the right to effective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). “[I]ncompetent advice distorts the defendant’s decision-­making process,” making it “hard to say that the plea deal was entered with the advice of constitutionally competent counsel.” Padilla v. Kentucky, 559 U.S. 356 (2010) (Alito, J., concurring in the judgment). The Court added that the Supreme Court “has clearly established that a lawyer’s incorrect advice can violate Strickland when it affects ‘the outcome of the plea process.’” Hill.

According to the Court, the present case is similar to Meyers wherein counsel misadvised the defendant about parole eligibility, and the Meyers Court held that the erroneous advice constituted deficient performance under Strickland because there was a reasonable chance the defendant would have opted to go to trial but for counsel’s deficient performance. Thus, the Court concluded that Fooks should be given a chance to prove his claim.

Accordingly, the Court remanded to the District Court to hold an evidentiary hearing and give Fooks the chance to prove his IAC claim. See: Fooks v. Superintendent, 96 F.4th 595 (3d Cir. 2024).  

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