Christopher Boyd v. Warden, Sci Waymart

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2185
CHRISTOPHER BOYD
v.
WARDEN, SCI WAYMART; DISTRICT ATTORNEY OF
PHILADELPHIA COUNTY, PENNSYLVANIA;
ATTORNEY GENERAL,
COMMONWEALTH OF PENNSYLVANIA,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 06-cv-0491
(Honorable Petrese B. Tucker)
Argued October 25, 2007
Before: SLOVITER, CHAGARES
and HARDIMAN, Circuit Judges.

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2
Reargued En Banc November 19, 2008
Before: SCIRICA, Chief Judge,
SLOVITER, McKEE, BARRY, AMBRO, FUENTES,
SMITH, FISHER, CHAGARES, JORDAN and
HARDIMAN, Circuit Judges.
(Filed July 31, 2009)
THOMAS W. DOLGENOS, ESQUIRE (ARGUED)
SUSAN E. AFFRONTI, ESQUIRE
District Attorney’s Office
Three South Penn Square
Philadelphia, Pennsylvania 19107-3499
Attorneys for Appellants
CHERYL J. STURM, ESQUIRE (ARGUED)
387 Ring Road
Chadds Ford, Pennsylvania 19317
Attorney for Appellee
MATTHEW C. LAWRY, ESQUIRE
BILLY H. NOLAS, ESQUIRE
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, Pennsylvania 19106
Attorneys for Amici Curiae-Appellee,

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For ease of reference, we use the term “Commonwealth” to1
denote Appellants Warden, SCI Waymart; the District Attorney
of Philadelphia County, Pennsylvania; and the Attorney General
for the Commonwealth of Pennsylvania.
3
Federal Defender Organization
OPINION OF THE COURT
PER CURIAM.
The District Court conditionally granted a writ of habeas
corpus to Christopher Boyd. The Commonwealth appealed,1
and after a three-judge panel heard argument, the Court ordered
rehearing en banc. We will reverse the District Court’s
judgment and remand to a different district court judge for
proceedings consistent with this opinion.
The facts of this case and the basis of our jurisdiction are
set forth in Parts I and II of Judge Hardiman’s opinion. For the
reasons given in Part III of that opinion, we conclude Boyd’s
claim was properly exhausted and has not been procedurally
defaulted. See Cone v. Bell, 129 S. Ct. 1769, 1781 (2009).
Furthermore, a majority of the Court finds that Boyd’s
claim is governed by the test for ineffective assistance of
counsel enunciated in Strickland v. Washington, 466 U.S. 668

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4
(1984); it is not barred by Tollett v. Henderson, 411 U.S. 258
(1973), or Mabry v. Johnson, 467 U.S. 504 (1984).
Although the District Court correctly identified the
Strickland test as the rule of decision, it erred in reviewing
Boyd’s claim de novo. As explained in Chief Judge Scirica’s
opinion, because the state courts adjudicated Boyd’s claim on
the merits, federal habeas relief is subject to the standards
prescribed by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d). Accordingly, we will
remand for the District Court to apply the proper AEDPA
analysis, consistent with the instructions in Chief Judge Scirica’s
opinion. See Chief Judge Scirica Op. 10–15 & n.7.
A further word is needed about the appropriate use of
evidentiary hearings. The Magistrate Judge in this case
conducted such a hearing, and both the Magistrate Judge and the
District Court relied on the evidence adduced therein. Neither
they, nor the parties, appear to have queried whether the hearing
was permissible under 28 U.S.C. § 2254(e)(2). As detailed in
Chief Judge Scirica’s opinion, on remand we instruct the
District Court to address this question in the first instance, and
to consider the evidence from the Magistrate Judge’s hearing
only if that hearing was consistent with AEDPA’s statutory
strictures.
For reasons also given by Chief Judge Scirica, we
conclude the District Court improperly rejected—on a cold
record—the Magistrate Judge’s finding that Boyd had not
demonstrated prejudice as required by Strickland. Although we

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5
have no doubts about the district court judge’s fairness, we will
remand to a different judge to ensure the appearance of
impartiality. If the District Court again reaches the prejudice
prong of the Strickland test, it should hold its own hearing
(subject again to § 2254(e)(2)) if it declines to accept the
Magistrate Judge’s finding.
SCIRICA, Chief Judge, concurring, in which AMBRO,
FUENTES and FISHER, Circuit Judges, join.
I agree with Judge Hardiman that Boyd did not
procedurally default his claim. “When a state court refuses to
readjudicate a claim on the ground that it has been previously
determined, the court’s decision does not indicate that the claim
has been procedurally defaulted. To the contrary, it provides
strong evidence that the claim has already been given full
consideration by the state courts and thus is ripe for federal
adjudication.” Cone v. Bell, 129 S. Ct. 1769, 1781 (2009).
Accordingly, I join Part III of Judge Hardiman’s opinion.
In my view, however, Tollett v. Henderson, 411 U.S. 258
(1973), and Mabry v. Johnson, 467 U.S. 504 (1984), do not
dispose of this case. Instead, I believe the well-settled test for
ineffective assistance of counsel set forth in Strickland v.
Washington, 466 U.S. 668 (1984), provides the rule of decision,
as the Magistrate Judge and District Court determined. At the
same time, however, I believe the District Court erred in
reviewing Boyd’s ineffective assistance of counsel claim under
a de novo standard. Because the Pennsylvania Superior Court
adjudicated Boyd’s claim on the merits, habeas relief is subject

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6
to the restrictions imposed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).
Accordingly, I would reverse and remand with instructions for
the District Court to apply the proper AEDPA standards.
AEDPA provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
established Federal law, as
determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was
b ase d o n an u n rea so n ab le
determination of the facts in light
of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). As the Supreme Court has explained,
AEDPA “place[d] a new constraint on the power of a federal
habeas court to grant a state prisoner’s application for a writ of
habeas corpus with respect to claims adjudicated on the merits
in state court.” Terry Williams v. Taylor, 529 U.S. 362, 412

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The District Court found that de novo review was also2
proper because “the state courts never cited or described the
relevant federal precedent, and thus, never reached the merits of
Petitioner’s Sixth Amendment claim.” Boyd, 2007 WL 403884,
at *2. The District Court erred in implying that the failure of a
state court to state “the relevant federal precedent” is necessarily
a failure to adjudicate a petitioner’s claim on the merits. The
Pennsylvania Supreme Court has made clear that the standard
for ineffective assistance of counsel under Pennsylvania
law—which the state courts applied here—is the same as
Strickland’s standard, see Commonwealth v. Tedford, 960 A.2d
7
(2000) (majority opinion of O’Connor, J.). Accordingly, as a
threshold matter, in order to determine whether the constraints
of § 2254(d) apply to federal review of Boyd’s petition, we must
determine whether the state courts decided his claim “on the
merits.” See Chadwick v. Janecka, 312 F.3d 597, 605–06 (3d
Cir. 2002). If the state courts decided a given claim on the
merits, “our standard of review is narrow:” we may not grant the
writ unless the state-court adjudication of that claim meets one
of the conditions set forth in § 2254(d)(1) or (d)(2). Id. at 605.
Conversely, “[w]e review de novo issues that the state court did
not decide on the merits.” Bond v. Beard, 539 F.3d 256, 263 (3d
Cir. 2008). The District Court concluded without elaboration
that it would “review [Boyd’s petition] de novo as the state
courts failed to accurately construe Petitioner’s claim against
trial counsel.” Boyd v. Nish, No. 06-0491, 2007 WL 403884, at
*2 (E.D. Pa. Jan. 31, 2007).2

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1, 12 (Pa. 2008) (citing Commonwealth v. Pierce, 527 A.2d 973,
975 (Pa. 1987) (adopting U.S. Supreme Court’s holding in
Strickland)), so a Pennsylvania court has adjudicated a
Strickland claim on the merits where it has applied the state-law
standard to that claim. Rompilla v. Horn, 355 F.3d 233, 248 (3d
Cir. 2004), rev’d on other grounds sub nom. Rompilla v. Beard,
545 U.S. 374 (2005).
8
State-court adjudication “on the merits” has been defined
as follows:
A matter is “adjudicated on the merits” if there is
a “decision finally resolving the parties’ claims,
with res judicata effect, that is based on the
substance of the claim advanced, rather than on a
procedural, or other, ground.” . . . [Section]
2254(d) applies regardless of the procedures
employed or the decision reached by the state
court, as long as a substantive decision was
reached; the adequacy of the procedures and of
the decision are addressed through the lens of §
2254(d), not as a threshold matter.
Teti v. Bender, 507 F.3d 50, 56–57 (1st Cir. 2007) (quoting
Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001), and citing
cases from the Fourth, Fifth, Sixth, Ninth, Tenth and Eleventh
Circuits); accord Thomas v. Horn, 570 F.3d 105, 114–15 (3d
Cir. 2009); Rompilla v. Horn, 355 F.3d 233, 247–48 (3d Cir.
2004), rev’d on other grounds sub nom. Rompilla v. Beard, 545

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The Pennsylvania Superior Court expressly noted the3
question Boyd presented: “Where the prosecutor offered a
negotiated guilty plea in the mitigated range of the guidelines,
and the case against [Appellant] was so strong as to be untriable
and also presented several reasons to expect a sentence in the
aggravated range or above, was trial counsel ineffective in
failing to discuss the relative merits of accepting the
prosecution’s offer with [Appellant]?”
9
U.S. 374 (2005). Our precedent “stand[s] for the proposition
that, if an examination of the opinions of the state courts shows
that they misunderstood the nature of a properly exhausted claim
and thus failed to adjudicate that claim on the merits, the
deferential standards of review in AEDPA do not apply.”
Chadwick, 312 F.3d at 606. But when the state courts have
“previously considered and rejected the federal claim on the
merits,” the § 2254(d) standards do apply. Siehl v. Grace, 561
F.3d 189, 195 (3d Cir. 2009).
Boyd has claimed his trial counsel was ineffective on two
different grounds. The first ground, initially presented on direct
appeal in Pennsylvania Superior Court, was that trial counsel
allegedly failed to give Boyd sufficient advice about the
sentencing guidelines to allow him to make an informed
decision about whether to accept the Commonwealth’s initial
plea offer. Boyd does not dispute that the Pennsylvania
Superior Court recognized this claim and decided it on the
merits for purposes of 28 U.S.C. § 2254(d). On its way to3
denying this claim, the Pennsylvania Superior Court found, as

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10
a matter of fact, that Boyd’s counsel “fully informed [Boyd]
about the availability of the original plea offer, but [Boyd]
decided to take his chances on the discretion of the court as to
sentencing.” Boyd contests this factual finding.
Boyd first presented the second ground for trial counsel’s
alleged ineffectiveness in his PCRA petition (i.e., on state
collateral review), arguing that trial counsel provided ineffective
assistance by rejecting the initial plea offer before discussing it
with him. The PCRA Court did not recognize that Boyd’s claim
was different from the one he had presented on direct appeal. It
believed Boyd was again asserting that “guilty plea counsel was
ineffective for advising defendant to reject a negotiated plea
offer of four to eight years in light of the seriousness of the
crimes charged,” rather than for rejecting the offer before
consulting Boyd. Given this mistaken formulation, it is not
surprising that the PCRA Court concluded “defendant raised the
exact issue on direct appeal that he is now raising in his PCRA
petition” and, accordingly, dismissed the claim as “previously
litigated.” The Commonwealth concedes “the PCRA court mis-
identified Boyd’s ineffectiveness claim.” Commonwealth’s
Suppl. Br. 5; see also id. at 6 n.3 (“[T]he PCRA court
incorrectly described the ineffectiveness claim . . . and never
correctly identifies it . . . .”).
On PCRA appeal, however, the Pennsylvania Superior
Court correctly identified Boyd’s claim, accurately describing
the question presented as whether “trial counsel’s rejection of
the [initial] offer before discussing it with [Boyd] rendered his

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Under Pennsylvania law, a petition for post-conviction4
review should be dismissed insofar as the “allegation of error”
has been “previously litigated.” 42 Pa. Cons. Stat. Ann.
§ 9543(a)(3). “[A]n issue has been previously litigated if . . . the
highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue .
. . .” Id. § 9544(a)(2). Part III of Judge Hardiman’s opinion
concludes that the “previously litigated” rule is not a procedural
default rule. I agree.
11
assistance ineffective.” The Pennsylvania Superior Court
correctly contrasted this claim with Boyd’s claim on direct
appeal that “his trial counsel was ineffective in failing to discuss
a plea agreement in which [he] would have received a sentence
in the mitigated range of the sentencing guidelines.” The
highest state court to review Boyd’s petition, therefore, did not
“misunderst[and] the nature” of his PCRA claim. Chadwick,
312 F.3d at 606. The Pennsylvania Superior Court rejected the
PCRA claim on the basis of the “previously litigated” rule, but4
that disposition cannot mean the Pennsylvania Superior Court
thought the claim was previously litigated, since as noted, that
court, unlike the PCRA Court, correctly distinguished between
the PCRA and direct-appeal claims.
Instead, the Superior Court looked back to its direct-
appeal opinion and saw that it had already rejected the factual
predicate of Boyd’s PCRA claim. Boyd’s claim that trial
counsel was ineffective for rejecting an earlier plea offer before
discussing it with him contains both factual and legal elements,

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The prejudice prong of Strickland calls for another factual5
determination: Would the defendant have avoided the injury of
which he complains if counsel had not performed deficiently?
The petitioner can prevail only if the court answers this question
in the affirmative.
12
and Boyd must establish both in order to prevail. First, he must
show that, as a matter of fact, his trial counsel had rejected the
initial plea offer before Boyd had an opportunity to consider it.
Second, he must demonstrate that this factual state of affairs
amounted legally to ineffective assistance of counsel, that is,
that such behavior by Boyd’s counsel was constitutionally
deficient and prejudiced him. The Pennsylvania Superior Court5
found Boyd could not establish the factual element of his claim
because the court had already found on direct appeal that trial
counsel “fully informed [Boyd] about the availability of the
original plea offer, but [Boyd] decided to take his chances on the
discretion of the court as to sentencing.” Accordingly, the
Pennsylvania Superior Court adjudicated Boyd’s PCRA claim
on the merits, rejecting it because the court had rejected its
factual predicate at an earlier stage of the litigation. The
Pennsylvania Superior Court therefore had no occasion to reach
the legal question whether, if trial counsel had rejected the offer
before consulting Boyd, such conduct would constitute
ineffective assistance.
Whether the Pennsylvania Superior Court’s factual
determination is “unreasonable” under 28 U.S.C. § 2254(d)(2)’s
deferential standard is distinct from the threshold question of

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Judge Sloviter’s opinion states that the Superior Court’s6
direct-appeal opinion “was clearly based on ‘an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding,’ and [is] therefore not entitled to the
deference required by AEDPA.” Judge Sloviter Op. at 41
(quoting 28 U.S.C. § 2254(d)(2)). But this formulation, I
believe, does not distinguish between the threshold question of
whether AEDPA deference is due—that is, whether § 2254(d)’s
standards apply—and the question of whether Boyd is entitled
to relief under AEDPA’s standards.
Since the Pennsylvania Superior Court rejected the factual7
predicate of Boyd’s PCRA ineffectiveness claim, it did not have
occasion to apply either prong of the Strickland test.
Accordingly, if Boyd is able to show that the state-court factual
determination was “unreasonable” under § 2254(d)(2), and that
13
whether that standard is applicable in the first place. See Teti,
507 F.3d at 57 (“[T]he adequacy of the [state-court] procedures
and of the decision are addressed through the lens of § 2254(d),
not as a threshold matter.”). The state courts’ rejection of6
Boyd’s ineffective assistance of counsel claim is entitled to
AEDPA deference because it is an adjudication on the merits.
The Pennsylvania Superior Court recognized the distinct nature
of Boyd’s PCRA claim. The Pennsylvania Superior Court
disposed of Boyd’s claim on factual rather than legal grounds,
but this means only that it is § 2254(d)(2) that applies to federal
review of the claim. The Pennsylvania Superior Court relied on7

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his trial counsel did reject the initial plea offer before consulting
him, the District Court should apply the two prongs of the
Strickland test de novo. See Rompilla, 545 U.S. at 390
(examining the prejudice prong of a Strickland claim de novo
because the state courts, having unreasonably found counsel’s
performance adequate, never reached that issue).
This case is distinguishable from those in which the highest8
state court of relevance failed to recognize the nature of the
petitioner’s claim and thus failed to adjudicate petitioner’s claim
“on the merits” for purposes of § 2254(d). When a state court
erroneously believes a claim has been previously litigated, and
dismisses the claim on that ground, there is no state-court
decision on the merits. See, e.g., Cone, 129 S. Ct. at 1784
(holding that a claim had not been adjudicated on the merits
where state courts had found it to have been previously litigated
(and dismissed it on that ground), but in fact it had not been).
The PCRA Court here made this mistake. If its decision had
been the final state-court word on the matter, Boyd’s PCRA
claim would not have been adjudicated on the merits, as was the
14
a finding made at a previous stage in the litigation, but this does
not prevent its decision from being an adjudication on the
merits. It means only that federal courts reviewing Boyd’s
habeas petition should examine the Superior Court’s opinion on
direct appeal, as well as its opinion on collateral review, in order
to determine whether the state-court adjudication of Boyd’s
claim was “unreasonable.”8

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case in Cone. But on PCRA appeal, the Pennsylvania Superior
Court correctly recognized Boyd’s claim and correctly found
that the factual issue underlying that claim had been previously
decided. When state courts correctly find that an issue has been
previously litigated, the question on federal habeas review is not
whether § 2254(d)’s standards apply (they do), but rather to
which state-court opinion we should apply them. Cf. Bond, 539
F.3d at 289–90 (Where a lower state-court opinion “represents
the state courts’ last reasoned opinion on [the relevant issue],”
we should “look through” the higher state-court opinion and
apply § 2254(d)’s standards “to the highest reasoned opinion.”).
15
Since the state courts decided both variations of Boyd’s
ineffective assistance of counsel claim on the merits, Boyd is
eligible for relief only if he can satisfy the standards imposed by
28 U.S.C. § 2254(d). Accordingly, the District Court erred in
exercising de novo review of Boyd’s claim. I would reverse and
remand with instructions for the District Court to apply the
proper AEDPA standards. See Terry Williams, 529 U.S. at
402–413 (describing the difference between § 2254(d)’s
standards and de novo review).
In the course of this appeal, other issues have arisen that
should be dealt with on remand. One issue involves the federal
evidentiary hearing held by the Magistrate Judge. Although
both the Magistrate Judge and District Court relied on testimony
from that hearing, neither the Magistrate Judge’s Report and
Recommendation nor the District Court’s opinion appeared to
examine whether the hearing complied with AEDPA, 28 U.S.C.

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16
§ 2254(e)(2). That section provides:
If the applicant [for a writ of habeas corpus] has
failed to develop the factual basis of a claim in
State court proceedings, the [federal] court shall
not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law,
made retroactive to cases on
collateral review by the Supreme
Court, that w as previously
unavailable; or
(ii) a factual predicate that could
n o t h a v e b e e n p re v io u sly
discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would
be sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
As Boyd does not contend that he can fulfill the conditions of
either § 2254(e)(2)(A) or (B), the section’s opening clause is
dispositive. If Boyd “failed to develop the factual basis” of his
claim in state court, then he should not receive a federal
evidentiary hearing.

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17
In construing this opening clause, the Supreme Court has
stated that “[t]he purpose of the fault component of ‘failed’ is to
ensure the prisoner undertakes his own diligent search for
evidence.” Michael Williams v. Taylor, 529 U.S. 420, 435
(2000). Boyd argues that he was sufficiently diligent in seeking
an evidentiary hearing in state court, and that § 2254(e)(2) is
therefore no obstacle to the Magistrate Judge’s hearing. See id.
at 437 (“If there has been no lack of diligence at the relevant
stages in the state proceedings, the prisoner has not ‘failed to
develop’ the facts under § 2254(e)(2)’s opening clause, and he
will be excused from showing compliance with the balance of
the subsection’s requirements.”). The Michael Williams Court
did not exhaustively explain what a petitioner must do to be
deemed “diligent” under the statute, but it did state that
“[d]iligence will require in the usual case that the prisoner, at a
minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.” Id.
On remand, I would instruct the District Court to decide
in the first instance whether Boyd’s efforts to obtain a state-
court evidentiary hearing were sufficient to allow a federal
hearing. If the court finds Boyd satisfied the diligence
requirements of § 2254(e)(2)’s opening clause, it may again rely
on the evidence adduced in the Magistrate Judge’s earlier
hearing; otherwise, this evidence should be excluded.
The Magistrate Judge’s hearing, if permissible, raises
another issue. We have held that “[a] district court may not
reject a finding of fact by a magistrate judge without an

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Such a hearing might have the additional benefit of further9
developing the factual record in light of the issues that have
surfaced in the course of this appeal. It might also illuminate the
parties’ continuing factual dispute over the specific sentencing
18
evidentiary hearing, where the finding is based on the credibility
of a witness testifying before the magistrate judge and the
finding is dispositive of an application for post-conviction relief
involving the constitutional rights of a criminal defendant.” Hill
v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995) (citing United States
v. Raddatz, 447 U.S. 667, 681 n.7 (1980)). This rule is
grounded, at least in part, on prudential reasons. “Our judicial
system affords deference to the finder of fact who hears the live
testimony of witnesses because of the opportunity to judge the
credibility of those witnesses.” Id. Although Boyd had testified
at the evidentiary hearing held by the Magistrate Judge that he
would have accepted the initial offer had he been adequately
advised by trial counsel, the Magistrate Judge concluded that
was not, in fact, the case. This finding necessarily implied a
determination that Boyd’s testimony was not credible. Applying
a de novo standard of review, the District Court, without holding
a hearing of its own, rejected the Magistrate Judge’s
determination and found that Boyd had satisfied the prejudice
prong of Strickland. Boyd, 2007 WL 403884, at *5. I would
hold that, if the District Court again reaches the prejudice prong
of the Strickland test after applying the deferential standards of
28 U.S.C. § 2254(d), it should hold its own evidentiary hearing
if it declines to adopt the Magistrate Judge’s finding.9

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term proposed in the initial plea offer. Boyd has contended that
the offer was for a term of incarceration of four to eight years,
whereas the Commonwealth has maintained the offer was for a
term of four to ten years. Although the District Court order
conditionally granting the writ describes the term as four to ten
years, its accompanying Memorandum and Order refers to both
terms at different points without clarification. This factual
dispute could be relevant to the determination of an appropriate
remedy if the District Court reaches that issue again on remand.
The details of the plea offer could also bear on the prejudice
prong of the Strickland test insofar as the length of the proposed
sentence affects the likelihood that Boyd, if properly advised,
would have accepted the initial plea offer instead of taking his
chances with an open plea.
19
The Court of Appeals for the Second Circuit reached the
same conclusion on a similar set of facts. Cullen v. United
States, 194 F.3d 401 (2d Cir. 1999). Petitioner Cullen had been
tried and convicted of drug offenses and sought habeas relief on
the ground that his trial counsel had failed to advise him
adequately with respect to a plea bargain offer that, if accepted,
would have resulted in a shorter sentence. The magistrate judge
found that counsel had performed deficiently and that this
performance had prejudiced Cullen, noting that “Cullen testified
that if [defense counsel] had discussed the sentencing guidelines
he would have pleaded guilty.” Id. at 403. The district court
agreed as to the deficient-performance prong, but rejected,
“without taking testimony,” the magistrate judge’s prejudice

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20
finding (based in part on the fact that Cullen had adamantly
protested his innocence). Id. Accordingly, the district court
denied the writ.
The Second Circuit vacated and remanded. Although the
district court had characterized the issue as a matter of law, the
Second Circuit noted that the prejudice question hinged on an
“essentially factual determination.” Id. at 405; see id. (“[T]he
determination of the likelihood that Cullen would have accepted
the plea bargain if he had been fully informed of its terms and
accurately advised of the likely sentencing ranges under the plea
bargain and upon conviction after trial was, like all predictions
of what might have been, a factual issue, albeit a hypothetical
one.”). The district court had not simply asserted that it
disbelieved Cullen’s self-serving testimony; it had pointed to
other evidence, like his claims of innocence, that weighed
against that testimony. Nonetheless, the Second Circuit
recognized that the prejudice determination necessarily involved
a credibility determination, id. at 407, and that pieces of
evidence extrinsic to Cullen’s self-serving statement, like his
claims of innocence and “the disparity between the guideline
range [Cullen] faced and the range as represented by defense
counsel,” were “factor[s] bearing upon [Cullen’s] credibility.”
Id. at 408. Accordingly, under the line of precedent including
the Supreme Court’s decision in United States v. Raddatz and
our decision in Hill v. Beyer, see Cullen, 194 F.3d at 405–07, the
Second Circuit vacated the district court’s judgment and
remanded, so that, “if the District Court [again] declines to
accept any credibility findings made based on live testimony

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If the original district court judge were to reach the same10
conclusion after hearing Boyd’s live testimony, those
unaware of [the district court judge’s] deserved
reputation for fairness, would wonder whether the
Judge had permitted h[er] prior ruling to influence
h[er] second decision. There are occasions when
a matter is appropriately remanded to a different
district judge not only in recognition of the
difficulty that a judge might have putting aside
h[er] previously expressed views, but also to
preserve the appearance of justice. . . . [T]hat
course is warranted here.
Cullen, 194 F.3d at 408 (internal quotation marks omitted).
21
before the Magistrate Judge,” there would “be an opportunity
for Cullen’s credibility to be assessed after the District Court has
seen and heard him testify.” Id. at 407.
Cullen is instructive in another respect as well. The
Second Circuit’s remand order assigned the case to a different
district court judge. I would do the same here. This
reassignment is dictated solely by concerns about the
appearance of impartiality—concerns inherent in the procedural
posture of the case, as Cullen recognized.10
For these reasons, I would reverse and remand to a

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I express no opinion about the ultimate merits of Boyd’s11
claim.
22
different district court judge.11
SLOVITER, Circuit Judge, Dissenting Opinion, Concurring in
the Judgment of the Court, in which Judge McKee joins.
In reviewing Judge Hardiman’s opinion, it is important
to note: (1) that Judge Hardiman never denies that Boyd’s
counsel did not inform Boyd of the Commonwealth’s plea offer
before Boyd pled guilty; (2) that Judge Hardiman never denies
that counsel has an obligation to directly inform a defendant of
a proffered plea agreement; (3) that Judge Hardiman never flatly
states that failure to advise a client of a plea offer is ineffective
assistance of counsel; (4) that there is nothing in the record to
support the state court’s assumption (and it is nothing short of
an assumption) that Boyd “knew about the initial plea offer yet
decided to ‘take his chances with the discretion of the court’”;
and (5) that the majority of the en banc court has not adopted
nor endorsed Judge Hardiman’s view of the effect of Tollett and
Mabry.
The principal issue raised on this appeal is whether, as
the District Court found, trial counsel for the defendant
Christopher Boyd was ineffective when he failed to
communicate directly to Boyd a plea offer of 4 to 10 years (or
4 to 8 years) made by the Commonwealth. The Petition for a
Writ of Habeas Corpus filed by Boyd, who was sentenced to 8
to 22 years, alleged that “[t]he conviction was obtained and

-- 22 of 118 --

23
sentence imposed in violation of the Sixth Amendment right to
effective assistance of counsel at all critical stages . . . . The
Petitioner alleges that trial counsel failed to communicate a
favorable plea agreement before rejecting it; that trial counsel
failed to discuss a favorable plea agreement before rejecting it.
The Petitioner alleges he would have accepted the 4-8 year plea
had it been presented to him for consideration before the lawyer
rejected it.” Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 at 3, Boyd v. Warden, SCI Waymart, No. 06-0491
(E.D. Pa. Feb. 1, 2006).
The Magistrate Judge to whom the District Court referred
the Petition for Habeas Corpus found, after an evidentiary
hearing, that trial counsel “did in fact reject the
Commonwealth’s plea offer without the prior consent of
Petitioner,” App. at 22 (emphasis in original), although the
Magistrate Judge recommended denial of the Petition. The
District Court, in ruling on the Petition for Habeas Corpus,
agreed, holding, based on undisputed facts: “This Court finds
that trial counsel did not communicate the plea offer to
Petitioner before rejecting the plea and thus failed to act as
‘counsel’ as guaranteed under the Sixth Amendment.” App. at
11.
The Commonwealth appealed to this court and listed as
one of the three issues presented: “Whether plea counsel was
constitutionally ineffective for failing to convey the original plea
offer directly to Boyd . . . .” Appellants’ Br. at 2. In its
Supplemental Brief filed at our direction after we granted en

-- 23 of 118 --

Judge Hardiman spends much of his opinion on the issue12
that he categorizes as the “procedural issue,” whether Boyd’s
claims are unexhausted and procedurally defaulted. Whether or
nor the discussion of exhaustion and procedural default in Judge
Hardiman’s opinion is correct, I do not propose to comment
thereon in this dissent.
24
banc hearing, the Commonwealth listed as one of the issues:
“[i]f trial counsel communicated the plea offer to Boyd not
directly, but only through Boyd’s mother, would this in itself
amount to ineffective assistance of counsel?” Supp. Br. for
Appellants at 31. Judge Hardiman never answers this question.
To reach the answer, we must review the proceedings that have
landed a young man in prison for the last seven years.
Judge Hardiman’s opinion concedes that “the extensive
briefing and oral argument presented to the Court en banc
focused entirely on the substantive issue [i.e., whether Sciolla,
Boyd’s trial counsel, was ineffective].” Hardiman Typescript
Op. at 89. Nonetheless, Judge Hardiman’s opinion concludes12
that “the adequacy of Sciolla’s representation with respect to the
Commonwealth’s initial guilty plea offer is immaterial,”
Hardiman Typescript Op. at 98-99, and, in so concluding
substantially curtails the scope and effect of Strickland.
I.
Background

-- 24 of 118 --

While under oath, Sciolla was asked, “During the13
conversation that you had with Mrs. Boyd, did you at any time
indicate that you had rejected the offer . . . ?” Sciolla answered,
“I did . . . .” App. at 35.
25
A. The Original Offense
Judge Hardiman’s opinion accurately describes the facts
relating to the commission of the offense. Boyd did indeed
commit a grievous assault on Jones, and it cannot be excused or
mitigated by the fact that, as Boyd later told the police, Jones
threatened that if Boyd did not pay the bet, Jones would kill
Boyd’s parents. App. at 167. There is no question that Boyd
was appropriately charged with aggravated assault, possession
of a weapon, and related offenses. It is the proceedings
thereafter that are at the heart of the issue before us.
B. The Guilty Plea
Boyd’s parents retained attorney Guy Sciolla to represent
Boyd. At all relevant times Boyd was an adult and was never
held to be mentally incompetent. The Commonwealth does not
dispute that there was never an issue regarding competency.
The Assistant District Attorney (“ADA”) assigned to the case
extended a plea offer to Sciolla, which called for a term of
imprisonment of four to eight (or four to ten) years. Sciolla
rejected the offer, telling the ADA that it was “unacceptable.”
App. at 40. After rejecting the offer, Sciolla called Mrs. Boyd
(Boyd’s mother), told her about the plea offer, and stated that he
had already rejected the offer. When asked at the hearing13

-- 25 of 118 --

At oral argument, the Commonwealth conceded that there14
was no dispute that trial counsel never directly communicated
the plea bargain offer to Boyd, once again demonstrating the
factual error stated by the Superior Court.
Q. . . . [F]irst of all, at the time you made the15
conversation to Nancy Boyd to communicate that
there had been an offer of four to eight years, had you
already rejected the offer?
A. I had. I had pretty much told the assistant district
attorney that I thought that was, you know, way over
the top; and it wasn’t as if that, you know, that offer
was withdrawn, but I had pretty much told, I believe
it was Jason Bologna, who was the then assistant D.A.
26
before the Magistrate Judge whether he had already rejected the
plea bargain offer prior to the conversation with Mrs. Boyd,
Sciolla testified, “I had.” App. at 40; see also App. at 35.
It is undisputed that Sciolla did not communicate the
offer directly to Boyd. App. at 35. Judge Hardiman states that14
“the state court found that Sciolla informed Boyd of the initial
plea offer and Boyd chose not to accept it.” Hardiman
Typescript Op. at 115. He never acknowledges that the state
court was wrong - and for Boyd disastrously wrong. When
asked under oath by Boyd’s federal habeas counsel if Sciolla
ever communicated the plea offer directly to defendant Boyd,
Sciolla said, “[n]o.” App. at 38. When Sciolla was asked15

-- 26 of 118 --

prosecuting this case, that I thought that was
unacceptable. And I communicated that to Ms. Boyd
– Mrs. Boyd.
App. at 40 (emphasis added). Sciolla’s failure to discuss the
potential sentence with Boyd appears in Sciolla’s other
testimony:
Q. And did you go over in detail the sentencing
guidelines –
A. No, I –
Q. – with Christopher Boyd –
A. – I never –
Q. – before that – before you made that
recommendation?
A. No, I would – I – I never talked to them about the
sentencing guidelines.
App. at 40-41. And yet again:
Q. And during the time that you were conveying to
Nancy Boyd that the Commonwealth had made an
27

-- 27 of 118 --

offer of four to eight years and you had rejected it as
unacceptable, did you also tell Nancy Boyd that
Christopher might get as much as 22 years?
A. No. No, I never would have thought that was
possible.
Q. And did you ever tell Christopher Boyd that he
might get as much as 22 years?
A. Absolutely not.
App. at 41.
The same point was reiterated shortly thereafter:
Q. During the entire time that you were representing
Chris Boyd, up until the point where he entered a
guilty plea in this case, is it a correct summary of your
testimony that you had never discussed
Pennsylvania’s Sentencing Guidelines with
Christopher Boyd?
A. Yes, that is correct.
Q. And is it also correct that you had never told Mr.
Boyd that he could get much more than four to eight
28

-- 28 of 118 --

years if he was convicted?
A. I don’t believe I ever said that he could get more,
I – I said I wouldn’t know what the actual sentence
would be, but we know that four to eight, I never saw
more than four to eight coming at him, so my hope
was that we could get below that based on my
strategy.
Q. But the information that Mr. Boyd had in his
decision-making process was four to eight years is
pretty much what he could expect?
A. To the extent he participated –
Q. The maximum?
A. – in the decision-making process.
Q. Okay.
A. And I’m not even sure he did –
Q. Okay.
A. – participate in that.
29

-- 29 of 118 --

. . .
THE COURT: Just one thing, Mr. Sciolla. You say
you’re not sure that he participated. Did you ever
discuss the four to eight with him?
THE WITNESS: Only through his mom.
THE COURT: His mom.
THE WITNESS: Yeah.
App. at 45-46.
Later in the hearing Boyd himself testified as follows:
Q. At some point, did you learn that the
Commonwealth had made an offer of four to eight
years to you?
A. Yes.
Q. And how did you find that out?
A. Through my mother.
Q. And how old were you, do you recall when this
30

-- 30 of 118 --

offer was conveyed to you?
A. I was 20.
Q. Okay. Did Mr. Sciolla at any time discuss with
you directly, you personally, that the Commonwealth
had made an offer of four to eight years to you?
A. No, never.
Q. Did Mr. Sciolla tell you at any time before you
pled guilty that Pennsylvania had sentencing
guidelines?
A. No, never.
Q. Did Mr. Sciolla tell you before you pled guilty
that you could get much more than four to eight years
in this case?
A. No.
Q. Did Mr. Sciolla at any time ask you personally
whether you wanted to accept the four-to-eight-year
offer from the Commonwealth?
A. No.
31

-- 31 of 118 --

Q. If Mr. Sciolla had explained to you that there were
sentencing guidelines in Pennsylvania and that you
could get much more than four to eight years if you
were convicted, what would you have done regarding
the four-to-eight-year plea offer?
A. I would have accepted the offer.
App. at 60-61.
Despite answering “no” to the question whether he ever16
told Boyd about the plea bargain offer, Sciolla then stated that
“[t]here were moments when I sat with Chris and I did repeat the
offer to him, but it would have been after – way after the fact .
. . .” App. at 38. It is not clear when that would have occurred,
if it did, or what Sciolla meant by that statement. Still, there are
three separate times where the record evidence supports the
conclusion that Sciolla never – not even prior to the open plea
– discussed the plea bargain offer directly with Boyd. See App.
at 38 (lines 14-18), 46 (lines 18-23), 60 (lines 12-15).
32
under oath by the Magistrate Judge whether he “ever discuss[ed]
the four to eight [year plea offer] with [Boyd]?,” Sciolla said
that he did not; he only told Mrs. Boyd about the offer. App. at
46. Boyd then testified under oath that Sciolla at no time16
discussed with him directly and personally that the
Commonwealth had made an offer of four to eight (or four to
ten) years. App. at 60.

-- 32 of 118 --

33
There is no support in the record for the
Commonwealth’s statement that “[t]he offer was discussed with
Boyd directly at several points later in the proceedings.”
Appellants’ Br. at 7. The only citation to the record that bears
on this statement is the colloquy referred to in footnote 4.
In addition, Sciolla did not discuss with Boyd the
statutory maximum sentence that he could receive. Sciolla did
not discuss with Boyd or the Boyd family the Pennsylvania
Sentencing Guidelines, including possible sentencing
enhancements and aggravating factors. He never told Boyd that
he could receive a sentence as high as twenty-five years
imprisonment, which was the statutory maximum. Sciolla did
not counsel Boyd about the plea bargain offer, statutory
maximum penalty, sentencing guidelines, and how those factors
should impact Boyd’s decision whether to accept the plea
bargain, enter an open plea, or go to trial. In fact, what Sciolla
did tell Boyd was that he could receive a sentence of four to
eight years imprisonment. Sciolla did not tell Boyd that he
could get more than four to eight years imprisonment. Sciolla
also testified that he is “not even sure [Boyd] did” participate in
the plea decision, but to the extent that Boyd did participate, the
only information he had was that he could get four to eight years
imprisonment. App. at 46.
The Commonwealth states the plea agreement remained
open, a statement which it has not supported by any written

-- 33 of 118 --

At the Magistrate Judge’s hearing Sciolla testified that “I17
don’t believe [the 4-8 year offer] was ever off the table,” App.
at 40, but there is no record corroboration of a continuing offer
by the Commonwealth.
34
communication by it nor by any affidavit by the prosecutor.17
Sciolla testified that he did not know if it was still an open offer
after he had rejected it. Judge Hardiman’s opinion states there
is a dispute regarding whether the offer remained open after
Sciolla rejected it. Hardiman Typescript Op. at 85 n.8. Even if
the Commonwealth had been willing to re-extend the offer after
Sciolla rejected it but before the guilty plea hearing, Boyd did
not know it because Sciolla never told him and there was no
mention of an outstanding offer at the guilty plea hearing or
sentencing. The reason it is irrelevant whether the offer was still
technically open is because it was never discussed with Boyd.
The Commonwealth does not argue otherwise.
On October 29, 2001, following Sciolla’s advice, Boyd
entered an open guilty plea to aggravated assault and possession
of an instrument of crime. The Commonwealth agreed to enter
a nolle prosequi to the other charged offenses. At the plea
colloquy, the trial court asked Boyd if he had a chance to talk to
Sciolla about whether he wanted to plead guilty, and Boyd said
that he had. The court did not tell Boyd, as it likely had no
reason to know, that the Commonwealth had made a plea offer
to Boyd, nor did it comment on whether any such offer was still
open. Rather, the court informed Boyd that “[t]here is no plea
agreement in this case . . . .” App. at 159. The court informed

-- 34 of 118 --

35
Boyd that the statutory maximum sentence was twenty-five
years. The court did not inform Boyd before the guilty plea
what the sentencing guidelines prescribed for his charged
offenses, nor did the court explain the applicability of
aggravating circumstances to Boyd’s case. The court never
asked Boyd whether Sciolla had explained to him the potential
statutory maximum sentence, the sentencing guidelines, or the
concept of aggravating circumstances. Likewise, the court
never asked Sciolla whether he had counseled Boyd in those
respects. Sciolla testified that even though Boyd walked
through the plea colloquy, he did not seem to fully grasp the
seriousness of the potential sentence. App. at 37.
C. Sentencing
The trial court applied the aggravated sentencing
guideline range (applicable when an offense involved the use of
a deadly weapon, in this case a baseball bat). The court
sentenced Boyd to a sentence of 84-240 months imprisonment
on the assault charge and 12-24 months on the weapon
possession charge, to be served consecutively. The resulting
sentence was 96-264 months, or eight to twenty-two years
imprisonment. This must be compared to the 48-96 [or 48-120
months] months sentence had the plea offer been accepted.
II.
Procedural History
Boyd timely filed a direct appeal in the Pennsylvania
Superior Court, alleging ineffective assistance of counsel. Boyd

-- 35 of 118 --

The affidavit, in relevant part, reads as follows:18
I, CHRISTOPHER BOYD, do hereby declare and
verify as follows:
1. I was charged with aggravated assault and
related offenses arising from an incident on July 21,
2000. I am 21 years old, and my date of birth is 6-24-80.
I had no prior arrests, adult or juvenile, and no prior
contact of any kind with the criminal justice system.
2. On July 28, 2000, I met with attorney Guy
Sciolla at my parents’ house, where I also resided. Mr.
Sciolla is a close friend of my mother’s niece by
marriage, Patty Smith. He said that he would represent
me in my criminal case.
3. On January 4, 2001, Mr. Sciolla spoke to my
mother on the phone and asked her to tell me that the
D.A.’s Office had offered me a plea of four to eight years
in prison if I would plead guilty. He told me, through my
mother, that the offer was “unacceptable.” He did not
36
was not represented by Sciolla on that appeal. In the direct
appeal to the Superior Court, Boyd attached an affidavit to
appellate counsel’s brief, in which he stated: “[Sciolla] did not
discuss the offer directly with me on that date or at any other
time.” App. at 116, ¶ 3. The brief also raised arguments18

-- 36 of 118 --

discuss the offer directly with me on that date or at any
other time.
4. Except for this case, my parents and I are
unfamiliar with the criminal justice system and we were
entirely dependent upon my attorney’s advice. He did
not explain the Sentencing Guidelines to us.
5. At the sentencing hearing on December 18,
2001, I was sentenced to serve eight to twenty-two years
in prison. I am presently incarcerated at SCI-Waymart.
6. I now understand the Sentencing Guidelines
which apply to my case. At Offense Gravity Score of 11,
where a deadly weapon is used, the standard range
sentence is 54-72 months, plus or minus 12.
App. at 116.
37
regarding Sciolla’s failure to tell Boyd about the sentencing
guidelines and statutory maximum, as well as his failure to
counsel Boyd in any meaningful way about what his options
were with respect to the guilty plea. App. at 113 (arguing that
a hearing was necessary to determine “why [Sciolla] elected not
to discuss [Boyd’s] potential sentence under the Guidelines, and
why trial counsel for no apparent rational reason chose to advise
[Boyd] not to take the D.A.’s offer that was the best chance he
had at reduced jail time.”).

-- 37 of 118 --

38
In an opinion dated November 18, 2002, on Boyd’s direct
appeal, the Superior Court affirmed Boyd’s judgment of
sentence. Although the Superior Court acknowledged the
existence of Boyd’s affidavit that was attached to Boyd’s
appellate brief, it did not refer to the portion of Boyd’s affidavit
quoted above. The Court found that Sciolla communicated the
plea offer to Boyd and “fully informed [Boyd] about the
availability of the original plea offer.” App. at 85. This
erroneous statement misinterprets or misstates the record.
In his brief to the Superior Court, Boyd had cited
Commonwealth v. Napper, 385 A.2d 521 (Pa. Super. Ct. 1978),
in support of his claim for ineffective assistance of counsel.
Napper had been convicted of two counts of aggravated robbery
and sentenced to two consecutive terms of five to twenty years
imprisonment. The trial court denied Napper’s petition for post-
conviction relief that was based upon counsel’s ineffectiveness
in failing to fully advise Napper of the availability of a plea
bargain offer. The Superior Court reversed, reasoning that
counsel had failed “to make clear [to his client] ‘the risks,
hazards or prospects of the case.’” Id. at 524.
In its opinion on Boyd’s direct appeal, the Superior Court
recognized that in Napper, counsel “all but admitted that he had
been ineffective in failing to advise [Napper] fully on the
availability of a plea bargain . . . .” App. at 85. The Court
sought to distinguish Napper by the statement, amazing under
the circumstances, that Boyd’s “counsel informed him of the
existence of the first plea bargain and the recommended

-- 38 of 118 --

39
sentence.” App. at 85. That conclusion was patently erroneous
in light of Boyd’s affidavit stating that counsel never informed
him directly of the plea bargain offer and in light of the legal
precedent that the Superior Court cited in the very decision
denying Boyd’s claim. Instead, the Superior Court concluded
that Sciolla was not ineffective, and that Boyd’s claims were
“without arguable merit.” App. at 88. Boyd appealed to the
Pennsylvania Supreme Court, which denied allocatur on
February 17, 2004.
On October 19, 2004, Boyd filed for relief under
Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. § 9541, claiming that trial counsel rendered
ineffective assistance of counsel by failing to consult with Boyd
about the Commonwealth’s plea offer. The Court of Common
Pleas (the PCRA court) dismissed the petition on February 7,
2005.
The court rejected Boyd’s claim that “guilty plea counsel
was ineffective for advising defendant to reject a negotiated plea
offer of four to eight years in light of the seriousness of the
crimes charged” and that “appellate counsel was constitutionally
ineffective for failing to make the foregoing argument on direct
appeal.” App. at 76. The PCRA court concluded that this
argument had previously been litigated because, on direct
appeal, the Superior Court held that Boyd’s guilty plea was

-- 39 of 118 --

The voluntariness of a plea, vel non, is distinct from the19
issue of counsel’s ineffectiveness for failing to provide adequate
counseling. Cf. United States v. Day, 969 F.2d 39, 45 (3d Cir.
1992) (“[T]he Sixth Amendment right to effective assistance of
counsel guarantees more than the Fifth Amendment right to a
fair trial.”).
40
entered knowingly, intelligently, and voluntarily. App. at 76.19
The PCRA court then stated that, assuming arguendo that the
claim had not been previously litigated, the claim was without
merit because there is no absolute right to withdraw a plea. The
court stated that “[t]o withdraw a plea after sentencing, a
defendant must make a showing of prejudice amounting to
manifest injustice[ ] . . . [which] would involve a plea which was
entered into involuntarily, unknowingly, or unintelligently.”
App. at 77 (citations omitted). Significantly, even the
alternative holding of the PCRA court does not discuss Boyd’s
claim of ineffective assistance of counsel nor the prejudice that
resulted therefrom.
On November 23, 2005, the Superior Court affirmed the
denial of the PCRA petition. The Superior Court determined
that Boyd’s claim was unreviewable based upon Pennsylvania’s
“previous litigation rule” because Boyd had already raised the
issue on direct appeal. The Superior Court’s opinion on appeal
from the PCRA court’s dismissal of Boyd’s PCRA petition
never discussed the merits of Boyd’s ineffective assistance of
counsel claim and, obviously, never discussed whether there
was any prejudice resulting therefrom. It follows that the only

-- 40 of 118 --

41
state court opinion of relevance for purposes of AEDPA is the
Superior Court opinion of November 18, 2002, an opinion, as
noted above, that was clearly based on “an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding,” and therefore not entitled to the
deference required by AEDPA. See 28 U.S.C. § 2254(d)(2).
Boyd turned to the federal court, having exhausted his
state court options. He filed a petition for habeas corpus,
pursuant to 28 U.S.C. § 2254, in the United States District Court
for the Eastern District of Pennsylvania. The District Court
referred the case to the Magistrate Judge who held the first, and
only, evidentiary hearing on Boyd’s claim of ineffective
assistance of counsel. The Magistrate Judge heard the testimony
of Boyd, Sciolla, and his direct appeal counsel. Because of its
importance to the issue on appeal, I repeat here the Magistrate
Judge’s finding of fact: “I do find that Sciolla did in fact reject
the Commonwealth’s plea offer without the prior consent of
Petitioner . . . .” App. at 22 (emphasis in original). The
Magistrate Judge concluded that Boyd’s claim was not
procedurally defaulted, but he ultimately recommended denying
the petition on the merits.
The District Court did not adopt the Magistrate Judge’s
Report and Recommendation although the District Court also
made the same relevant factual finding from the undisputed facts
on the record that “trial counsel did not communicate the plea
offer to Petitioner before rejecting the plea.” Boyd v. Nish, No.
06-0491, 2007 WL 403884, at *4 (E.D. Pa. Jan. 31, 2007). In

-- 41 of 118 --

After the District Court order directing the Commonwealth20
to extend its plea offer once again, the District Attorney, by
letter dated August 22, 2007, wrote to Boyd that it “formally
presents a plea offer in the above referenced case of four to ten
years of incarceration in a state correctional institution.”
Response to Application for Unconditional Release, Exhibit A,
Boyd v. Warden, SCI Waymart, No. 06-0491 (E.D. Pa. Aug. 22,
42
addition to agreeing that Boyd’s claim was not procedurally
defaulted because, under the facts of this case, the previous
litigation doctrine is not a state rule of procedure, id. at *3, the
District Court reviewed Boyd’s claims de novo. It did so
because the state courts “failed to accurately construe” Boyd’s
claims and did not cite “relevant federal precedent.” Id. at *2.
The District Court concluded that trial counsel’s failure to
communicate the Commonwealth’s plea offer to Boyd
constituted a “‘gross deviation from accepted professional
standards,’” and thus constituted failure to act as counsel under
the Sixth Amendment. Id. at *4 (citing United States ex rel.
Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982)). The
Court also concluded that Boyd had demonstrated prejudice
because he testified he would have accepted the
Commonwealth’s plea offer, whereas the sentence he received
was significantly greater than the plea offer terms. Id. at *5.
The District Court entered an order conditionally granting
Boyd’s petition for habeas corpus on January 31, 2007.
Nonetheless, Boyd is currently serving a sentence of eight to
twenty-two years imprisonment in a state correctional facility.20

-- 42 of 118 --

2007). The letter further states that “this offer is conditional on
the outcome of the pending appeal from Judge Tucker’s order
granting habeas relief in this case.” The appeal has remained
pending for almost two years since that letter; Boyd remains in
jail.
43
He has already served more than seven years.
III.
Discussion
A. The Guilty Plea
Judge Hardiman’s opinion would decide this case
primarily on the premise that Boyd has conceded his entire
claim of ineffective assistance of counsel because he agreed at
sentencing that his guilty plea was knowing, voluntary, and
intelligent, Hardiman Typescript Op. at 102, and has never
receded from that position. Quoting from Mabry v. Johnson,
467 U.S. 504, 508 (1984), Judge Hardiman’s opinion states: “It
is well settled that a voluntary and intelligent plea of guilty
made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked.” Hardiman
Typescript Op. at 101. (emphasis added). Of course, the issue
in this case is Boyd’s claim that he was not advised by
competent counsel. Furthermore, in neither Mabry nor Tollett
was there any allegation made that counsel had performed in an
ineffective manner.
In Tollett v. Henderson, 411 U.S. 258 (1973), a state

-- 43 of 118 --

44
prisoner who had pled guilty to murder twenty-five years earlier
sought a writ of habeas corpus on the ground that the grand jury
that indicted him excluded African Americans, an exclusion that
had already been declared unconstitutional. Id. at 259, 261.
Instead of affirming the decision of the lower courts directing
Tollett’s release, the Court remanded, holding that “respondent
must not only establish the unconstitutional discrimination in
selection of grand jurors, he must also establish that his
attorney’s advice to plead guilty without having made inquiry
into the composition of the grand jury rendered that advice
outside the ‘range of competence demanded of attorneys.’” Id.
at 268.
Tollett is irrelevant to the issue before us. Tollett’s
challenge to his guilty plea was directed to the state’s right to
convict a defendant who was indicted by an unconstitutionally
selected grand jury. If Tollett’s challenge was successful, as it
was in the Court of Appeals, he would have been entitled to
release and a new trial following his indictment by a properly
constituted grand jury. That was the relief directed by the Sixth
Circuit, see Henderson v. Tollett, 459 F.2d 237, 243 (6th Cir.
1972), and which the Supreme Court modified by remanding for
further findings.
That is a far cry from what Boyd has been contending
and what he seeks. Boyd does not claim he should be
exculpated because of some constitutional violation by the state.
We have seen such cases when appellants or petitioners allege
a Miranda violation, a Brady violation, or a Bruton violation.

-- 44 of 118 --

45
In contrast, Boyd admits that he committed the assault for which
he was convicted. He does not argue that his conviction should
be overturned because of an antecedent constitutional violation.
His current counsel forthrightly conceded before this court that
Boyd was guilty, and knowingly and voluntarily pleaded guilty
to the assault. His claim goes not to his guilty plea but to his
sentence.
Boyd does not challenge his factual guilt. He does not
wish to withdraw his guilty plea and stand trial; he seeks the
more favorable sentence contained in the initial plea offer.
Because Boyd does not contest his guilt, but only his sentence,
his guilty plea does not render irrelevant—and thus does not
bar—his claim.
In a case subsequent to Tollett, the Supreme Court stated
that “[n]either Tollett v. Henderson, nor our earlier cases on
which it relied, stand for the proposition that [valid] counseled
guilty pleas inevitably ‘waive’ all antecedent constitutional
violations. . . . [I]n Tollett we emphasized that waiver was not
the basic ingredient of this line of cases.” Menna v.
Washington, 423 U.S. 61, 63 n.2 (1975) (per curiam) (internal
citations omitted). Instead, “[t]he point of these cases is that a
counseled plea of guilty is an admission of factual guilt so
reliable that, when voluntary and intelligent, it quite validly
removes the issue of factual guilt from the case.” Id. (second
emphasis added). The Supreme Court’s own words are a more
effective response to the reliance on Tollett in Judge Hardiman’s
opinion than any I could devise.

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46
Must a defendant lie about his guilt in order that he may
raise the issue that his counsel was ineffective in failing to
advise him of the prosecutor’s proposed plea agreement?
In contrast, Mabry did involve a challenge to the
defendant’s sentence imposed after a plea bargain. 467 U.S. at
505-06. In Mabry, defendant/respondent sought habeas corpus
to collaterally attack a second plea bargain on the ground that it
was unfair for the prosecutor to have withdrawn a more
favorable plea bargain. The Supreme Court rejected that
argument. The critical distinction between Boyd’s case and
Mabry’s, and which is not noted by Judge Hardiman, is that in
Mabry, the “[r]espondent [did] not challenge the District Court’s
finding that he pleaded guilty with the advice of competent
counsel and with full awareness of the consequences.” Id. at
510. Whatever may be the similarities in the facts between this
case and Mabry, these factual similarities are irrelevant as the
respondent in Mabry, unlike Boyd, chose not to contest the
conduct of his attorney.
Judge Hardiman’s opinion is so focused on the seemingly
talismanic properties of the phrase “knowing, intelligent, and
voluntary” that it is unable to see the additional requirement of
competent counsel in Tollett, or that different iterations of the
same test have been used by the Supreme Court. In Tollett
itself, Chief Justice Rehnquist (then Justice Rehnquist) quoted
from the Supreme Court’s earlier decision in McMann v.
Richardson, 397 U.S. 759 (1970), where the Court stated that in
reviewing claims of ineffectiveness of counsel, the focus is “‘not

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47
on whether a court would retrospectively consider counsel’s
advice to be right or wrong, but on whether that advice was
within the range of competence demanded of attorneys in
criminal cases.’” Tollett, 411 U.S. at 264 (quoting McMann,
397 U.S. at 771). See also Tollett, 411 U.S. at 267 (“When a
criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the
advice he received from counsel was not within the standards set
forth in McMann.”).
The requirement of competent counsel, not surprisingly,
is widely reiterated in opinions of the various courts of appeals.
See, e.g., Acha v. United States, 910 F.2d 28, 30 (1st Cir. 1990)
(“Moreover, a guilty plea does not preclude a defendant from
raising a claim that ineffective assistance of counsel rendered
the guilty plea itself unintelligent and invalid.”) (citations
omitted); United States v. Arteca, 411 F.3d 315, 320 (2d Cir.
2005) (“Ineffective assistance of counsel during plea
negotiations can invalidate a guilty plea and make granting
withdrawal appropriate, to the extent that the counsel’s deficient
performance undermines the voluntary and intelligent nature of
defendant’s decision to plead guilty.”) (citations omitted);
Hammond v. United States, 528 F.2d 15, 18 (4th Cir. 1975) (“If
counsel was ineffective, it follows that Hammond’s pleas were
involuntary. The Brady trilogy . . . makes it perfectly plain that

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48
the sine qua non to a voluntary plea of guilty is the assistance of
counsel within the range of competence required of attorneys
representing defendants in criminal cases.”) (quotations and
citations omitted); United States v. Glinsey, 209 F.3d 386, 392
(5th Cir. 2000) (“A voluntary guilty plea waives all
nonjurisdictional defects in the proceedings against the
defendant. This includes claims of ineffective assistance of
counsel except insofar as the ineffectiveness is alleged to have
rendered the guilty plea involuntary.”) (citation omitted); United
States v. Brown, 870 F.2d 1354, 1359 (7th Cir. 1989) (“Brown
does not claim that he received ineffective assistance of counsel,
which would be a valid basis for claiming that his guilty plea
was not knowing and voluntary.”) (citation omitted); Thomas v.
Lockhart, 738 F.2d 304, 306 (8th Cir. 1984) (“We agree with the
District Court that Thomas did not receive effective assistance
of counsel; consequently he did not make a voluntary, knowing,
and intelligent guilty plea.”); Langford v. Day, 110 F.3d 1380,
1386 (9th Cir. 1996) (“The fact that overshadows this case is
that Langford strongly and repeatedly insisted on pleading guilty
and seeking the death penalty. That fact does not . . . mean that
Langford loses his right to effective assistance of counsel; his
plea must be not only voluntary but intelligent, and counsel’s
advice enters into the determination of intelligence. Counsel’s
advice must be within the range of competence demanded of
attorneys in criminal cases.”) (quotation and citation omitted);
Maldonado v. Winans, 728 F.2d 438, 439 (10th Cir. 1984) (per
curiam) (“[E]ffective assistance of counsel within the range of
competence required of attorneys representing defendants in

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49
criminal cases is indispensable to a voluntary guilty plea.”)
(quotation omitted); Scott v. Wainwright, 698 F.2d 427, 429
(11th Cir. 1983) (“[A] guilty plea cannot have been knowing
and voluntary . . . if a defendant does not receive reasonably
effective assistance of counsel in connection with the decision
to plead guilty, because the plea does not then represent an
informed choice.”) (citation omitted); In re Sealed Case, 488
F.3d 1011, 1015 (D.C. Cir. 2007) (“It is well-established that the
validity of a guilty plea depends on whether the plea represents
a voluntary and intelligent choice, and that the voluntariness of
the plea depends on whether counsel’s advice satisfies the Sixth
Amendment guarantee of effective assistance.”) (quotation
omitted).
This court has also endorsed that view. See, e.g., Siers v.
Ryan, 773 F.2d 37, 42 (3d Cir. 1985). We cannot avoid
examining whether Boyd received the effective assistance of
counsel when making his guilty plea.
B. Ineffective Assistance of Counsel
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
“An accused’s right to be represented by counsel is a
fundamental component of our criminal justice system.” United
States v. Cronic, 466 U.S. 648, 653 (1984). Assistance of
counsel is fundamental because “[counsel] are the means
through which” the accused’s other rights are guaranteed. Id.
“Of all the rights that an accused person has, the right to be

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50
represented by counsel is by far the most pervasive for it affects
his ability to assert any other rights he may have.” Id. at 654
(quotation omitted).
The right to counsel means “‘the right to the effective
assistance of counsel.’” Id. (quoting McMann, 397 U.S. at 771
n.14). That is because the text of the Sixth Amendment itself
suggests that the accused must receive “Assistance,” and that
assistance must be “for his defence.” Id. The Supreme Court
has thus stated that if counsel does not provide “actual
‘Assistance,’” it is a violation of the guarantee provided by the
Sixth Amendment. Id. Otherwise, the requirement of counsel
would be a mere “sham,” meaning nothing more than formal
compliance with the Constitution. Id. (citation and internal
quotations omitted).
The right to effective assistance of counsel applies to an
individual pleading guilty, just as it would apply to an individual
electing to stand trial. See Von Moltke v. Gillies, 332 U.S. 708,
721 (1948). The decision whether to plead guilty is a
fundamental decision in a criminal case. Jones v. Barnes, 463
U.S. 745, 751 (1983).
1. Trial Counsel’s Performance
Analysis of the merits of Boyd’s claim of ineffective
assistance of counsel requires application of the familiar two-
prong test enunciated by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The first prong entails a
determination whether trial counsel’s performance was deficient

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I note briefly that, while we would normally be required to21
defer to the findings of a state court on a factual issue, such
deference is not required here, as the state court’s finding that
Boyd’s affidavit admitted he had been informed by trial counsel
of the initial plea “was based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d)(2). The finding was
unreasonable because Boyd’s affidavit, reproduced in full in
note 7, stated that he had never personally been informed of the
51
when measured by an objective reasonableness standard.
Strickland, 466 U.S. at 687. Second, if counsel’s performance
was deficient, it is necessary to consider whether the deficient
performance prejudiced the defense. Id.
In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Supreme
Court held that “the two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective
assistance of counsel.” The Court explained that “[i]n the
context of guilty pleas, the first half of the Strickland v.
Washington test is nothing more than a restatement of the
standard of attorney competence already set forth in Tollett v.
Henderson . . . and McMann v. Richardson . . . . ” Id. at 58-59.
The McMann standard requires that counsel’s advice in
connection with a guilty plea be “‘within the range of
competence demanded of attorneys in criminal cases.’” Id. at 56
(quoting McMann, 397 U.S. at 771). In short, counsel’s
performance in connection with a guilty plea must meet
standards of objective reasonableness. Id. at 57.21

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plea offer.
Although I agree with Chief Judge Scirica that, under
AEDPA, the factual finding of the Superior Court on direct
appeal is the type of state court factual finding to which a
federal court must show deference, I note that such deference is
due only when the finding is not unreasonable. Thus
notwithstanding note 5 in Chief Judge Scirica’s opinion, I do
distinguish between the question whether deference is due and
whether deference is due in this case. However, I am also
convinced that, given the unreasonableness of the state court
factual finding in this case, no deference is due. My opinion is
therefore focused on the merits of Boyd’s claim.
52
It is well-established Supreme Court precedent that an
accused individual has the ultimate authority to decide whether
to plead guilty and whether or not to accept a plea offer
extended by the prosecution. See Jones, 463 U.S. at 751
(emphasizing that the defendant has the ultimate authority to
make fundamental decisions regarding the case, including
whether to plead guilty); Faretta v. California, 422 U.S. 806,
819 (1975) (explaining that the Sixth Amendment grants to
accused the personal right to make his defense); Von Moltke,
332 U.S. at 721 (stating that the accused must decide whether to
plead guilty); see also Strickland, 466 U.S. at 688 (noting that
counsel has “particular duties to consult with the defendant on
important decisions and to keep the defendant informed of
important developments in the course of the prosecution”).

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Such a communication may well violate Rule 1.6 of22
Pennsylvania’s Rules of Professional Conduct, which provides
that “[a] lawyer shall not reveal information relating to
representation of a client unless the client consents after
consultation . . . .” See Pa. Rules of Prof’l Conduct R. 1.6
(Confidentiality of Information) (2000).
53
Because there are weighty consequences at stake, the
decision whether to plead guilty is an intensely personal one that
may be made only by the defendant. See Gov’t of Virgin Islands
v. Weatherwax, 77 F.3d 1425, 1435 (3d Cir. 1996) (stating that
the decisions regarding the plea process “ultimately must be
made by the defendant [himself]”); People v. Whitfield, 239
N.E.2d 850, 852 (Ill. 1968) (concluding that the right to accept
state’s plea offer belonged to defendant, not to counsel or
defendant’s mother). There could be an exception to that rule if
an individual is deemed incompetent or a minor, neither of
which is at issue here.
The Commonwealth seeks to bypass the uniform
authority adhering to the rule set forth above by referring to
Sciolla’s difficulty communicating with Boyd and his subjective
good intentions to use Boyd’s mother as a “translator.” A22
review of the case law reveals no “communication problems”
exception to the constitutional rule that the defendant must make
the decision whether to plead guilty following direct
consultation with counsel, and the Commonwealth has cited no
such case.

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54
The defendant’s right to make fundamental decisions
affecting the “objectives of the representation” is also well-
established in this circuit. See, e.g., Weatherwax, 77 F.3d at
1435 (stating that “fundamental” decisions, like the decision
whether to plead guilty, relate directly to the objectives of
representation and thus must be made by the defendant himself)
(citing Model Rules of Prof’l Conduct R. 1.2(a) (1994)). See
also Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996)
(explaining that the decision whether to plead guilty is a
fundamental decision reserved for the defendant himself to
make).
In United States ex rel. Caruso v. Zelinsky, 689 F.2d 435,
436 (3d Cir. 1982), defendant Caruso was convicted of murder
following a trial, and was sentenced to a term of life
imprisonment. When he later discovered that trial counsel failed
to advise him that the prosecutor had offered a plea bargain if he
agreed to plead guilty, he filed a petition for a writ of habeas
corpus based upon ineffective assistance of counsel. The district
court granted the writ. On review, we agreed with the district
court’s conclusion that the failure of counsel to communicate to
Caruso the prosecutor’s plea bargain offer was a violation of his
Sixth Amendment right to effective assistance of counsel. We
stated that “[t]he decision to reject a plea bargain offer . . . is a
decision for the accused to make.” Id. at 438. We explained
that the right to counsel attaches during the guilty plea process
because the right to counsel attaches at all “‘critical stages’ of
the criminal process,” and the guilty plea stage is such a “critical
stage.” Id. (citation omitted). We also stated that “[i]t would

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Ultimately, the court remanded to the district court for23
factual findings regarding whether the plea bargaining claim
was procedurally defaulted, an issue that necessitated a
determination of cause and prejudice. Caruso, 689 F.2d at 444.
55
seem that, in the ordinary case, a failure of counsel to advise his
client of a plea bargain would constitute a gross deviation from
accepted professional standards.” Id.23
Other courts of appeals have held the same. In United
States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994), the Court
of Appeals for the Ninth Circuit collected cases from five other
circuits agreeing that defense counsel’s failure to communicate
to the accused the existence of a plea bargain offer, as well as
the failure to advise the client of the available options and
consequences of such an offer, constitutes ineffective assistance
of counsel.
In Boyd’s case, Sciolla provided ineffective assistance of
counsel in three ways. First, there is no dispute that Sciolla did
not communicate to Boyd directly the Commonwealth’s plea
offer. Because a defendant’s decisions regarding a guilty plea
are inherently personal ones, it was a gross deviation from
accepted professional standards for counsel to have
communicated with Boyd’s mother, rather than Boyd. See
Caruso, 689 F.2d at 438.
Second, consultation with Mrs. Boyd would not excuse
counsel’s ineffectiveness because the duty of effective
representation is one owed directly to the accused, not the

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56
accused’s family. If counsel had concerns about Boyd’s
competency, it would have been prudent to request a
competency evaluation. That duty cannot be excused based upon
after-the-fact arguments about communication difficulties.
Third, counsel did not even communicate the offer to
Mrs. Boyd until after he rejected it. Once counsel rejected the
offer, he reduced the spectrum of possibilities available to Boyd.
The act of rejecting the offer before communicating it to the
defendant is constitutionally deficient because the case law
clearly requires that such a fundamental decision must be made
by the defendant. See Jones, 463 U.S. at 751.
Each one of those actions would be enough to find that
counsel’s performance failed to meet constitutional standards.
But here, the constitutional ineffectiveness runs even deeper.
Specifically, Sciolla never counseled Boyd in connection with
the guilty plea; he never informed Boyd of his potential
sentencing exposure under the statute and the sentencing
guidelines, and he never gave Boyd meaningful advice about the
pros and cons of each option – the plea bargain offer, the open
guilty plea, or the trial.
We have held that counsel must reasonably inform a
defendant regarding his potential sentencing exposure and the
various options a defendant faces in the plea bargaining stage of
a criminal case. In United States v. Day, 969 F.2d 39, 40 (3d
Cir. 1992), we held that a facially valid claim of ineffective
assistance of counsel was presented by defendant Day’s
allegation that, although his counsel told him about a plea offer

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57
extended by the prosecutor, he did not counsel him about the
potential effect of the United States Sentencing Guidelines, nor
did he explain the mandatory maximum sentence exposure. Day
argued that the failure to counsel him about his potential options
and sentencing exposure constituted sub-standard assistance.
We agreed that if what Day alleged was true, he would have
made a showing of constitutionally deficient performance. Id.
at 42. We explained that “a defendant has the right to make a
reasonably informed decision whether to accept a plea offer.”
Id. at 43 (citing Hill, 474 U.S. at 56-57; Von Moltke, 332 U.S. at
721 (“Prior to trial an accused is entitled to rely upon his
counsel to make an independent examination of the facts,
circumstances, pleadings and laws involved and then to offer his
informed opinion as to what plea should be entered.”)).
Included in that informed decision is knowledge regarding the
comparative sentencing exposure between the accused’s various
options. Day, 969 F.2d at 93. We therefore remanded to the
district court to conduct an evidentiary hearing. Id. at 47.
As we explained in Weatherwax, 77 F.3d at 1436, the
requirement that counsel consult with his or her client
concerning issues on which the client has the final word enables
the accused to assist with his or her own defense. We stated that
“the client’s views and desires concerning the best course to be
followed are relevant considerations that must be evaluated and
taken into account by counsel.” Id. We noted that consultation
promotes a strong attorney-client relationship, and enables the
accused to seek alternative representation if he or she does not
agree with the course of conduct undertaken by counsel. Id. at

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58
1436-37.
In Strickland, the Supreme Court “pointed to
‘[p]revailing norms of practice as reflected in American Bar
Association standards’ as guides ‘to determining what is
reasonable.’” Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996)
(citing Strickland, 466 U.S. at 688). According to the American
Bar Association’s standard, “[a] defense lawyer in a criminal
case has the duty to advise his client fully on whether a
particular plea to a charge appears to be desirable.” See id.
(emphasis omitted) (citing Model Code of Prof’l Responsibility
EC 7-7 (1992)). The performance required of defense counsel
is not merely telling the client that there is a plea bargain offer
or even telling the client the nature of the offer. Rather, the
constitutionally required performance is that of complete
disclosure in conjunction with full advice and counsel regarding
the client’s potential sentencing exposure, options regarding
plea bargains, and the potential consequences with respect to
each option.
In this case, in addition to not communicating the offer
to Boyd at all, Sciolla, like the defense lawyer in Day, did not
counsel Boyd about the advantages and disadvantages of the
plea offer, or how it compared to the options of entering an open
plea or going to trial. Thus, Boyd was in no position to make a
reasonably informed decision regarding his plea because counsel
failed to advise him about the statutory maximum sentence, the
sentencing guidelines, and differences between the options he
faced. Counsel never told Boyd he could receive a sentence

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59
greater than four to eight years imprisonment. See App. at 45-
46. As a result, as Sciolla testified, Boyd had little, or no,
participation in the decision-making process regarding the plea
process. App. at 46.
In sum, Boyd’s counsel’s performance was below the
range of competence demanded of attorneys in criminal cases.
There was, in effect, a complete lack of meaningful assistance
with respect to the guilty plea process. The Pennsylvania
Superior Court’s conclusion that “counsel’s actions cannot be
deemed ineffective,” App. at 88, was an unreasonable
application of clearly established federal law, as determined by
the Supreme Court, because it was based on the Superior
Court’s finding that Boyd’s “counsel informed him of the
existence of the first plea bargain,” App. at 85, which itself was
an unreasonable determination of the facts in light of the
evidence presented to the Superior Court.
Judge Hardiman avoids any comment on the above
analysis of Boyd’s ineffectiveness of counsel claim by his
conclusion that Boyd was not entitled to a hearing in federal
court, Hardiman Typescript Op. at 106 et seq., and that Boyd’s
state court offer of proof was insufficient to establish prejudice.
Id. I consider Boyd’s showing relating to the prejudice issue
first.
2. Prejudice
As the Supreme Court has stated, prejudice requires a
showing that “there is a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. This
requirement has been applied, inter alia, in cases such as this
where the claim is ineffectiveness in the guilty plea context. See
Hill, 474 U.S. at 59; Caruso, 689 F.2d at 438. In such an
instance, “then, of course, the prejudice question is whether,
absent the ineffective assistance,” there is a reasonable
probability that the defendant would have accepted the plea
bargain offer. See 5 Wayne R. LaFave et al., Criminal
Procedure § 21.3(b), at 116, 125-26 (2d ed. 1999) (hereinafter
“LaFave”).
The question arises what constitutes a “reasonable
probability”? We have explained that Strickland “does not
require certainty or even a preponderance of the evidence that
the outcome would have been different with effective assistance
of counsel; it requires only [a] ‘reasonable probability . . . .’”
Day, 969 F.2d at 45 n.8 (citing Strickland, 466 U.S. at 693-94;
Hill, 474 U.S. at 57). It is a relatively low standard, given that
it is not necessary to even prove it is “more likely than not” that
the outcome would be different.
This court has held that when a defendant would have
otherwise accepted a plea bargain offer, there is prejudice in the
mere fact that s/he lost that opportunity if the plea bargain offer
included a significantly lesser degree of punishment than the
sentence received. In Caruso, we held that Caruso had alleged
prejudice because he claimed that he received a significant
additional term of imprisonment resulting from trial counsel’s

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61
failure to communicate a plea offer that Caruso would have
accepted. 689 F.2d at 438. We considered two essential factors:
(1) whether Caruso would have accepted the plea bargain offer,
and (2) whether Caruso received a significantly greater sentence
than that which was offered in the plea bargain. Id. In applying
those factors, we concluded that “Caruso allege[d] the requisite
prejudice, a significant additional term of imprisonment that
resulted from counsel’s failure to communicate the plea offer
which he would have accepted.” Id.
We rejected the government’s argument that, because
Caruso received a fair trial subsequent to his counsel’s failure to
inform him of a plea offer, the fair trial remedied the
deprivation. 689 F.2d at 438 (citing Rose v. Mitchell, 443 U.S.
545, 557-64 (1979) (rejecting state’s argument that habeas
review should be foreclosed where claimed error did not affect
determination of guilt)). We explained that such an argument
was untenable in the plea bargaining context because the
subsequent proceeding could not remedy the fact that the
defendant was denied the opportunity to present the plea bargain
to the judge. Id. Although we did not presume prejudice, we
did find that, if Caruso made a showing that he would have
accepted the plea offer, the loss of that opportunity prejudiced
him even though he subsequently received a fair trial. Our
analysis came close to presuming prejudice but created a
requirement that the petitioner prove that he would have
accepted the original plea offer.
We considered this issue again in Day, 969 F.2d at 45,

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62
where Day, who rejected a plea offer of five years imprisonment
and ultimately received a sentence of almost twenty-two years
imprisonment, alleged that trial counsel failed to tell him what
his sentencing exposure was under the sentencing guidelines and
under the statutory maximum penalty. We held that Day’s
allegations, if true, created a showing of prejudice. We rejected
the district court’s holding that because Day received a
subsequent fair trial, he could not have suffered prejudice. Id.
at 44. We reiterated our holding in Caruso that a subsequent
fair trial does not remedy the harm caused to a defendant when
he is deprived by counsel of the opportunity to accept a plea
bargain and be sentenced with that bargain in place. Id.
In Day, we explained that the basis for our conclusion
was that “the Sixth Amendment right to effective assistance of
counsel guarantees more than the Fifth Amendment right to a
fair trial.” Id. at 45. In other words, in the plea bargaining
context even if counsel’s constitutionally deficient conduct does
not affect the determination of the accused’s guilt under the
Fifth Amendment, see Caruso, 689 F.2d at 438 (citing Rose, 443
U.S. at 557-64), petitioner has shown prejudice if there is a
“reasonable probability” that the constitutionally deficient
performance resulted in an outcome different than that which
would have occurred if counsel had been effective. See Day,
969 F.2d at 45.
In United States v. Gordon, 156 F.3d 376 (2d Cir. 1998),
the Court of Appeals for the Second Circuit addressed a similar
issue. Gordon, whose offenses subjected him to imprisonment

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63
for 262-327 months, was not told by counsel that the
government had made a plea offer somewhere in the range of
84-115 months. Id. at 377-78. Nor did Gordon’s attorney
counsel him about the difference between the range in the plea
offer and that in the potential maximum sentence. Id.
The Second Circuit held that the relevant inquiry as to
prejudice because of counsel’s ineffectiveness was whether
there was a “reasonable probability” that the outcome would
have been different had Gordon been accurately informed of his
sentencing exposure. Id. at 380-81. If so, Gordon suffered
prejudice. The Second Circuit held that he did, based on the fact
that Gordon “did not have accurate information upon which to
make his decision to pursue further plea negotiations or go to
trial.” Id. at 380. In reaching this decision, the court relied on
two factors: (1) Gordon’s statement that he would have accepted
the plea bargain offer had counsel told him about it and
counseled him with respect to his potential sentencing exposure
(i.e., subjective evidence), and (2) the presence of “objective
evidence” in the form of the great disparity between Gordon’s
actual sentencing exposure under the Guidelines and the
sentence exposure represented by Gordon’s counsel. Id. at 380-
81.
Coincidentally, a case strikingly similar to Boyd’s has
recently been decided by the Supreme Court of South Carolina.
In Davie v. South Carolina, 675 S.E.2d 416 (S.C. 2009), the
petitioner, pursuant to a plea agreement, pled guilty to various
cocaine offenses, child endangerment, and traffic offenses. The

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64
judge sentenced him to an aggregate of 27 years imprisonment
which petitioner did not appeal. Instead, he filed a Post
Conviction Relief Application (PCR) asking the court to vacate
his guilty plea on the ground, inter alia, that he was denied
effective assistance of counsel because his plea counsel had
failed to inform him of a written plea agreement in which the
state offered a 15-year sentence in exchange for his plea to all of
the pending charges. Plea counsel testified he was unaware of
the state’s offer until after it had expired because he was
relocating his office. The PCR court denied relief, finding that
petitioner knowingly and voluntarily pled guilty because he was
fully advised of the rights he was waiving by pleading guilty and
understood the underlying charges.
The Supreme Court of South Carolina reversed, applying
an analysis that was comparable to the Second Circuit’s in
Gordon. Although the Court stated that it gives great deference
to the post-conviction relief court’s findings of fact and
conclusions of law, it adopted the rule “that counsel’s failure to
convey a plea offer constitutes deficient performance . . . ,” a
rule that would be “consistent with the majority of other state
and federal jurisdictions,” citing in excess of 20 other opinions.
Id. at 420. The Court held that even if counsel was not aware of
the plea offer he was deficient in not objecting to the plea
hearing.
The Court then turned to the issue before us, whether
petitioner was prejudiced by this deficient performance. The
Court noted that following Strickland, some state courts have

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65
“essentially presumed prejudice merely based on the fact that
plea counsel failed to communicate a plea offer,” while “other
state courts have found prejudice based on the defendant’s self-
serving statements that he would have accepted the plea offer
had he been made aware of it.” Id. at 421-22. The Court noted
that other courts have applied a burden that is seemingly higher
and requires objective evidence to show prejudice, i.e., not only
that defendant would have accepted the offer but that he would
have received a lesser sentence than that which he received.
The Court opted to join those courts that use a case-by-
case analysis looking strictly at the facts of each case. The
Court noted that it is not always necessary for a defendant to
offer objective evidence to support a claim of actual prejudice.
It concluded that Davie had proven that he was prejudiced by
plea counsel’s deficient performance and that the difference in
the sentence petitioner received and the plea offer is proof of
prejudice. It noted that both the state counsel and plea counsel
acknowledged that the state originally offered a 15-year
sentence in exchange for the guilty plea, that plea counsel failed
to communicate the offer to Davie, that both plea counsel and
Davie testified that had this offer been communicated Davie
would have accepted the plea agreement, and that had he
accepted the original offer, he would have received a
significantly lesser sentence than the 27-year sentenced that was
imposed.
Boyd’s situation fits precisely into the analysis applied by
the South Carolina Supreme Court. The Commonwealth has not

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66
denied that there was a plea offer of 4-10 years, Sciolla admitted
he failed to communicate the offer to Boyd, Boyd testified he
would have accepted it had he known of the offer (which Sciolla
never counseled him about), and had he accepted it he would
have received a significantly lower sentence than the 8-22 years
sentence that was imposed.
In Day, this court stated, “[t]he government mocks Day’s
contention that although he did not plead guilty when he
believed that his sentence exposure was approximately eleven
years, he would have pleaded guilty had he known that he would
receive a sentence of almost twenty-two years. We do not find
the contention so implausible that it was properly dismissed
without a hearing. . . . [W]e do not find it at all implausible that
a young man would think twice before risking over 3800 extra
days in jail just to gain the chance of acquittal of a crime that he
knew that he had committed.” Day, 969 F.2d at 45.
In this case, as in Day, Boyd’s failure to accept the
proffered guilty plea led to a sentence substantially higher than
offered, i.e., a sentence of 84-240 months imprisonment
compared to the offered 48-96 (or 48-120) months
imprisonment. Such a finding is sufficient under our precedent,
Gordon, and Davie, to demonstrate prejudice.
3. Right to a Hearing
I turn next to Judge Hardiman’s disapproval of the
evidentiary hearing held before the Magistrate Judge and the
evidence produced there - the first opportunity Boyd was given

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67
to produce the relevant facts of counsel’s failure to inform him
of the plea offer and failure to counsel him regarding the guilty
plea. This issue of the right to an evidentiary hearing in habeas
corpus cases is of great importance to the district courts.
Although the case law speaks in terms of a hearing in the district
court, it is equally applicable to a hearing before a magistrate
judge to whom the matter is referred by a district judge. A
thorough analysis of the relevant case law suggests that not only
did the federal court have discretion to grant Boyd an
evidentiary hearing, it was actually required to do so.
In Townsend v. Sain, 372 U.S. 293, 312-13 (1963), a case
involving the proper standard for determining whether to grant
or deny an evidentiary hearing in federal habeas corpus
proceedings, the United States Supreme Court announced the
following rule: “Where the facts are in dispute, the federal court
in habeas corpus must hold an evidentiary hearing if the habeas
applicant did not receive a full and fair evidentiary hearing in a
state court, either at the time of the trial or in a collateral
proceeding. In other words a federal evidentiary hearing is
required unless the state-court trier of fact has after a full
hearing reliably found the relevant facts.” (emphasis added).
The Court enumerated six specific circumstances in which a
federal habeas court must grant an evidentiary hearing: “(1) the
merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly
supported by the record as a whole; (3) the fact-finding
procedure employed by the state court was not adequate to
afford a full and fair hearing; (4) there is a substantial allegation

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Townsend afforded great discretion to the district courts to24
determine whether to grant an evidentiary hearing on the theory
that “federal district judges are more intimately familiar with
state criminal justice, and with the trial of fact, than are we, and
to their sound discretion must be left in very large part the
administration of federal habeas corpus.” 372 U.S. at 313. The
Court had “every reason to be confident that federal district
judges, mindful of their delicate role in the maintenance of
proper federal-state relations, will not abuse that discretion.” Id.
at 318.
68
of newly discovered evidence; (5) the material facts were not
adequately developed at the state-court hearing; or (6) for any
reason it appears that the state trier of fact did not afford the
habeas applicant a full and fair fact hearing.” Id. at 313. With
respect to scenario (5), the Court reasoned that a federal hearing
is necessary if, for any reason “not attributable to the
inexcusable neglect of petitioner,” crucial evidence pertinent to
the federal claim was not developed. Id. at 317.
If an evidentiary hearing is not mandatory, the Court
explained, “[i]n all other cases where the material facts are in
dispute, the holding of such a hearing is in the discretion of the
district judge.” Id. at 318. Importantly, the Court stressed that
“[i]n every case [the district court] has the power, constrained
only by his sound discretion, to receive evidence bearing upon
the applicant’s constitutional claim.” Id. The opportunity for24
a petitioner, such as Boyd, to submit an affidavit does not equate
with the “full and fair evidentiary hearing” referred to in

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See Keeney, 504 U.S. at 5 (overruling Townsend only “in25
this respect”); see also id. at 18 (stating that “[t]his holding, of
course, directly overrules a portion of Townsend . . . .”)
(O’Connor, J., dissenting).
69
Townsend.
This court has stated that “[f]ollowing Townsend it was
generally recognized that district courts had plenary authority to
conduct evidentiary hearings in their discretion, constrained
only by those six occasions in which a hearing was required.”
Cristin v. Brennan, 281 F.3d 404, 414 (3d Cir. 2002) (citing
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000), cert.
denied, 531 U.S. 1084 (2001); Hakeem v. Beyer, 990 F.2d 750,
770-71 (3d Cir. 1993); Keller v. Petsock, 853 F.2d 1122, 1129
(3d Cir. 1988)).
Almost thirty years later, the Supreme Court partially
overruled Townsend, albeit not on this issue. In Keeney v.
Tamayo-Reyes, 504 U.S. 1 (1992), the Court addressed the
limited question “whether the deliberate bypass standard is the
correct standard for excusing a habeas petitioner’s failure to
develop a material fact in a state-court proceedings.” Id. at 5.
The Court replaced the “deliberate bypass” standard with the
“cause and prejudice” standard for determining whether a
petitioner’s failure to develop facts in state-court proceedings
should be excused. Id. at 11-12.25
We considered the effect of Keeney in Cristin, where we
stated, “Keeney never applied . . . to all requests for evidentiary

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The relevant section of the statute provides:26
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
70
hearings in habeas actions. The Court described its holding as
relevant only when the petitioner ‘fail[ed] to develop’ the facts
of his habeas claim in state court.” Cristin, 281 F.3d at 415
(alteration in original) (citation omitted). In other words, the
holding in Keeney was limited to “circumstances in which the
material facts were not developed in state court due to the fault
of the petitioner.” Id.
In Williams v. Taylor, 529 U.S. 420, 434 (2000), decided
after the passage of AEDPA, the Supreme Court explained that
“the opening clause of § 2254(e)(2) codifies Keeney’s26

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(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.
28 U.S.C. § 2254(e).
71
threshold standard of diligence, so that prisoners who would
have had to satisfy Keeney’s test for excusing the deficiency in
the state-court record prior to AEDPA are now controlled by §
2254(e)(2).” The Court clarified that, as in Keeney, “[b]y the
terms of its opening clause [§ 2254(e)(2)] applies only to
prisoners who have ‘failed to develop the factual basis of a
claim in State court proceedings.’” Id. at 430. The Court
elucidated, “[u]nder the opening clause of § 2254(e)(2), a failure
to develop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.” Id. at 432.
As to the concept of diligence, the Court continued,
“[t]he question is not whether the facts could have been
discovered but instead whether the prisoner was diligent in his
efforts.” Id. at 435. It does not matter whether the petitioner
could have been successful; rather, what matters is whether the
petitioner made a reasonable attempt to pursue his/her claims in
state court. Id. “Diligence will require in the usual case that the
prisoner, at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law.” Id. at 437. If there

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72
has been no lack of diligence on the part of petitioner, then he
has not “failed to develop” the facts under § 2254(e)(2)’s
opening clause, and “he will be excused from showing
compliance with the balance of the subsection’s requirements.”
Id.
In other words, if a petitioner seeks and is denied a
hearing in state court, there is nothing in § 2254(e)(2) that bars
the district court from granting a hearing. See id. at 436-37. If
the petitioner is not in the “group that ‘would have had to satisfy
Keeney’s test,’” Cristin, 281 F.3d at 415 (quoting Williams, 529
U.S. at 434), then the Townsend rule applies, and the district
courts have the requirement, or at least the discretion, to grant
an evidentiary hearing. See, e.g., Taylor v. Horn, 504 F.3d 416
(3d Cir. 2007); Cristin, 281 F.3d at 415; Campbell, 209 F.3d at
287; Love v. Morton, 112 F.3d 131 (3d Cir. 1997); see also 1
Hertz & Liebman § 20.1b, at 804 (“Even after AEDPA . . .
Townsend’s mandatory-hearing standards – and its delegation to
district courts of broad discretion to hold evidentiary hearings
that are not mandated – continues to govern all situations save
those in which the petitioner’s procedural default accounts for
the state courts’ failure to develop the material facts.”) For a
full discussion of the requirement of a federal evidentiary
hearing, see Goldblum v. Klem, 510 F.3d 204, 243-52 (3d Cir.
2007) (Pollak, J., dissenting). In this case, because Boyd did not
“fail” to develop the factual record in state court within the
meaning of § 2254(e)(2), see Williams, 529 U.S. at 434; Cristin,
281 F.3d at 415, the District Court was not prohibited from
granting an evidentiary hearing.

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73
The Hertz & Liebman treatise cautions that “reviewing
federal courts have sometimes confused the Townsend standard
for the ‘right to a hearing (as partially modified by Keeney v.
Tamayo-Reyes and AEDPA’s section 2254(e)(2)) with the
statutory standard for determining the effect of state factfindings
(as modified by AEDPA’s sections 2254(d)(2) and 2254(e)(1)).”
1 Hertz & Liebman § 20.2d, at 831. Although the two inquiries
overlap, they are distinct issues. That the state court may have
made a finding of fact does not preclude the requirement of a
hearing in the federal habeas court if no hearing was granted in
the state court.
Here, the District Court was required to grant Boyd an
evidentiary hearing because (1) the petition alleges facts that
would entitle Boyd to relief if proven; (2) the fact-based claims
are not frivolous; and (3) the factual claims were not previously
the subject of a full and fair hearing in the state courts for
reasons beyond the control of Boyd and his lawyer. Id. § 20.1b,
at 804-06. The absence of an evidentiary hearing cannot be laid
at Boyd’s feet. Boyd’s counsel sought, and was denied, an
evidentiary hearing on his ineffectiveness assistance of counsel
claim in his direct appeal, App. at 106, and in his subsequent
PCRA petition, and that denial of a hearing was affirmed on
appeal to the Superior Court in its 2005 decision, App. at 72-73,
the same court earlier responsible for the significant
misstatement of fact in its 2002 decision. Boyd therefore met
the diligence standard enunciated in Williams; thus, he was not
responsible for the lack of a hearing, and AEDPA does not limit
the federal court’s discretion to grant a hearing in this case. It

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74
was therefore not error for the federal court to have granted
Boyd an evidentiary hearing.
Even if it were not mandatory, there is no question that
under the relevant Supreme Court precedent and AEDPA, the
District Court had discretion to grant Boyd a hearing. See
Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007). This court
recently stated that if a petitioner’s factual record is
insufficiently developed in the state court “through no fault of
his own,” § 2254(e)(2) does not preclude the district court from
granting a hearing. Goldblum v. Klem, 510 F.3d 204, 222 (3d
Cir. 2007). “In cases where an applicant for federal habeas
relief is not barred from obtaining an evidentiary hearing by 28
U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in
the discretion of the district court . . . . In exercising that
discretion, courts focus on whether a new evidentiary hearing
would be meaningful, in that a new hearing would have the
potential to advance the petitioner’s claim.” Id. (citations and
internal quotations omitted).
The Supreme Court has never disavowed or retreated
from its decision in Townsend v. Sain. The Court cited
Townsend in Boumediene v. Busch, 128 S. Ct. 2229, 2270
(2008), and placed the constitutional right to habeas corpus
above even Congress’ power to emasculate its essential features,
such as the right to a hearing. Moreover, the Supreme Court
cited Townsend for the proposition that prior to AEDPA the
decision whether to grant an evidentiary hearing was left to the
sound discretion of the district courts, and “[t]hat basic rule has

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75
not changed.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(emphasis added). This court, in a post-AEDPA case, applied
Townsend as the relevant legal standard for determining whether
an evidentiary hearing is required in a post-AEDPA era. See
Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 293 (3d
Cir. 2005).
Boyd’s entitlement to an evidentiary hearing is supported
by years of precedent of this court. See, e.g., Goldblum, 510
F.3d at 221 (emphasizing that decision to grant evidentiary
hearing should be “left to the sound discretion of district
courts”) (citation and internal quotations omitted); Richardson,
423 F.3d at 29 (applying Townsend as relevant legal standard for
determining whether evidentiary hearing is required in post-
AEDPA era); Marshall v. Hendricks, 307 F.3d 36, 117 (3d Cir.
2002) (applying Townsend to require a hearing where district
court failed to hold one in post-AEDPA era); Campbell, 209
F.3d at 286-87 (stating that AEDPA permits evidentiary hearing
in federal court if petitioner diligently sought to develop factual
basis for his claim in state court but was denied the opportunity
for a hearing by the state court); Yohn v. Love, 76 F.3d 508, 516
n.12 (3d Cir. 1996) (stating general rule that “[i]n cases where
an evidentiary hearing is not mandatory . . . the holding of a
hearing is left to the discretion of the district court”); Lesko v.
Lehman, 925 F.2d 1527, 1539 (3d Cir. 1991) (stating that
district court “must hold an evidentiary hearing, if the habeas
applicant did not receive a full and fair evidentiary hearing in a
state court”) (citation and internal quotations omitted); United
States v. Dawson, 857 F.2d 923, 927-28 (3d Cir. 1988); Keller,

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76
853 F.2d at 1129-30 (vacating district court’s denial of petition
for habeas corpus and remanding for an evidentiary hearing
which was required where no hearing had been held in state
courts and facts were disputed); Mayberry v. Petsock, 821 F.2d
179, 185 (3d Cir. 1987) (stating general rule that “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
trial or in a collateral proceeding, a federal habeas court must
hold an evidentiary hearing”); Bibby v. Tard, 741 F.2d 26, 30
(3d Cir. 1984) (“An evidentiary hearing is required if there is a
dispute of material fact--that is, facts which, if true, would
entitle the petitioner to relief--and the petitioner was not
afforded a full and fair evidentiary hearing in the state courts.”);
United States ex rel. McNair v. New Jersey, 492 F.2d 1307,
1309 (3d Cir. 1974) (hearing required in district court where
material facts not adequately developed at state court hearing).
See also United States v. Carmichael, 216 F.3d 224, 227 (2d
Cir. 2000) (hearing was necessary to determine whether
defendant would have accepted plea offer and whether trial
court would have approved it).
The importance of an evidentiary hearing is illustrated by
the testimony at the only evidentiary hearing in this case that
was held by the Magistrate Judge, which is set out in note 4
supra. This significant evidence directly contradicts the
Pennsylvania Superior Court’s determination that trial counsel
informed Boyd of the existence of the plea offer. This case
therefore directly falls within the exception to AEDPA’s

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77
requirement of deference because the state court determination
“was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d)(2).
Judge Hardiman goes on at length to explain why, under
Pennsylvania law, the Pennsylvania courts were not required to
grant the hearing request because Boyd could have developed
the factual basis of his claim by submitting more detailed
affidavits. Therefore, he concludes that the federal court was
prohibited from holding the only hearing ever held on Boyd’s
petition. This claim has no basis in law, and is not supported by
precedent.
Assuming the Pennsylvania courts had the option to deny
Boyd’s request for a hearing, that does not mean, and cannot
mean, that the federal court was barred from holding a hearing.
The discretion afforded to federal district courts to hold a
hearing is a cornerstone of Supreme Court habeas corpus
precedent going right up to the Schriro case in 2007. Federal
law requires, or at a minimum permits, a hearing in a case such
as this, even if state law does not.
The issue here is not whether Boyd would have
succeeded in his habeas claim - it is Judge Hardiman’s position
that Boyd was not entitled to the one evidentiary hearing he
received in federal court. Boyd was clearly diligent, the only
issue recognized in Williams as relevant to the denial of a state
court hearing.

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78
Despite the tenor of the footnotes in Judge Hardiman’s
comments, I suggest that the proper focus must be on Judge
Hardiman’s conclusion repeated throughout that Boyd was not
entitled to an evidentiary hearing to further develop the factual
record. We cannot glide over the dangerous effect of the
process favored by Judge Hardiman. It could preclude any
evidentiary hearing at all in a habeas case even though the state
courts had declined all requests by the petitioner for an
evidentiary hearing, as they did in Boyd’s case. In stark
contrast, the Supreme Court has recognized the significance of
an evidentiary hearing in habeas corpus cases.
In Wingo v. Wedding, 418 U.S. 461, 474 (1974), the
Court stated,
“To experienced lawyers it is commonplace that the
outcome of a lawsuit – and hence the vindication of legal
rights – depends more often on how the factfinder
appraises the facts than on a disputed construction of a
statute or interpretation of a line of precedents. Thus the
procedures by which the facts of the case are determined
assume an importance fully as great as the validity of the
substantive rule of law to be applied.”
(quoting Speiser v. Randall, 357 U.S. 513, 520 (1958)).
Surely, Judge Hardiman would not question the
relevance of Justice Brennan’s comments about the importance
of developing the facts merely because they were written before
the passage of AEDPA. The respected habeas corpus

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79
commentators Hertz and Liebman have commented that even
after AEDPA,
[A]n evidentiary hearing is mandatory if three conditions
are met: (1) A petitioner alleges facts that, if proved,
entitle the party to relief; (2) the petitioner’s factual
allegations survive summary dismissal because they are
not palpably incredible or patently frivolous or false; and
(3) for reasons beyond the control of the petitioner and
the petitioner’s attorney (assuming the attorney rendered
constitutionally satisfactory assistance), the factual issues
were not previously the subject of a full and fair hearing
in the state courts or, if a full and fair state court hearing
was held, the hearing did not result in factfindings that
resolve all the controlling factual issues.
Hertz & Liebman, Federal Habeas Corpus Practice and
Procedure, infra at § 20.3a (emphasis added). All three
conditions are satisfied here. But whether mandatory or not,
surely the federal court had the discretion to direct an
evidentiary hearing.
One might reasonably inquire what Judge Hardiman finds
dangerous in the only evidentiary hearing afforded to Boyd, that
before the Magistrate Judge. It is, after all, only at that hearing
that Sciolla admitted that he did not tell Boyd directly about the
Commonwealth’s plea offer, that he rejected that offer even
before he told Boyd’s mother, that he did not counsel Boyd
about the Pennsylvania Sentencing Guidelines, and that he did
not tell Boyd about the potential sentence he could receive.

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When Boyd’s counsel told this court that Boyd’s guilty27
plea was knowing and voluntary, she may not have fully
appreciated the implications of that statement under Tollett.
Sciolla’s admissions at the evidentiary hearing clarify that
Boyd’s guilty plea was not knowing, as it was entered without
adequate assistance of counsel.
80
Sciolla’s admissions supply the fulcrum of Boyd’s Sixth
Amendment claim of ineffective assistance of counsel, which is
the subject of the habeas corpus claim before us.27
What goal is served by requiring the federal habeas court
to don blinders to the relevant facts that were never the subject
of inquiry by the Pennsylvania courts? In this case there is no
duplication of effort such as one encounters occasionally in a
habeas proceeding. And although Judge Hardiman states as a
fact “that Boyd knew about the initial plea offer yet decided to
‘take his chances with the discretion of the court,’” Hardiman
Typescript Op. at 106, the record made at the evidentiary
hearing before the Magistrate Judge, where the witnesses were
subject to the Commonwealth’s cross-examination, shows that
was not the fact at all. And the Magistrate Judge found to the
contrary.
Habeas corpus, and the evidentiary hearing to which
petitioner is entitled, subject the constitutional claim of the
petitioner to the light of federal review. The blinders proposed
by Judge Hardiman would have the federal court limited to

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81
seeing through the glass darkly. Paraphrasing the unforgettable
words of Eleanor Roosevelt, it is better to light a candle than to
curse the darkness.
C. Remedy
In my view, we should affirm the District Court’s
determination that Boyd has shown both ineffective assistance
and prejudice.
The District Court directed that the Commonwealth
reinstate its prior offer. The South Carolina Court in Davie,
noting there was no evidence that petitioner expressed a desire
to proceed to trial rather than plead guilty, imposed a different
remedy. It stated that it cannot compel the state to reinstate or
the Circuit Court judge to accept the original 15-year plea offer.
Instead, it remanded the case for a new sentencing hearing, but
directed the state and the Circuit Court judge to take into
consideration the prior 15-year offer.
In light of the disposition of the majority of this court to
remand for findings related to the merits, I do not discuss the
remedy ordered by the District Court. I note merely that if I
were writing for the court, I would have directed that the matter
be remanded to the state court for its determination of the
appropriate remedy.
Although I maintain my adherence to the foregoing
opinion, I believe we have an obligation to make every effort to
achieve a judgment concurred in by a majority of the en banc
court. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 455

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82
(2003) (Stevens, J., concurring in judgment). For that purpose,
and because my view of what I regard as the principal legal
issue presented, i.e. the application of Strickland to Boyd’s
claim of ineffective assistance of counsel and the rejection of the
reliance in Judge Hardiman’s opinion on Tollett and Mabry in
situations such as this, comports with Chief Judge Scirica’s
view, I concur in his judgment for the court.
D. Coda
In reviewing the issues on this appeal, we cannot
overlook that the Supreme Court has recently re-confirmed the
importance of the protection of habeas corpus, and, in particular,
the need for judicial review in connection with that
constitutional safeguard. The Court stated that the “protection
for the privilege of habeas corpus was one of the few safeguards
of liberty specified in a Constitution that, at the outset, had no
Bill of Rights. In the system conceived by the Framers the writ
had a centrality . . . .” Boumediene v. Bush, 553 U.S. ----, 128
S. Ct. 2229, 2244 (2008). That was because “[t]he Framers
viewed freedom from unlawful restraint as a fundamental
precept of liberty, and they understood the writ of habeas corpus
as a vital instrument to secure that freedom.” Id.
Nevertheless, the Court stated that “[w]e do consider it
uncontroversial, however, that the privilege of habeas corpus
entitles the prisoner to a meaningful opportunity to demonstrate
that he is being held pursuant to the erroneous application or
interpretation of relevant law.” Id. at 2266 (citation and internal
quotation marks omitted). Indeed, “the necessary scope of

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83
habeas review in part depends upon the rigor of any earlier
proceedings . . . .” Id. at 2268. Citing Townsend, 372 U.S. at
313, the Court noted that “[f]ederal habeas petitioners long have
had the means to supplement the record on review, even in the
postconviction habeas setting.” Id. at 2270. The Court stressed
that a petitioner (in that case, a detainee) must be able to present
reasonably available evidence to a habeas corpus court, see id.
at 2273, noting that in the post-trial habeas cases presentation of
evidence is limited only where a habeas petitioner has already
had a “full and fair opportunity to develop the factual predicate
of his claims” or failed to exercise diligence in doing so. Id.
Although the case before us does not involve detainees in
Guantanamo, both the Supreme Court’s holding and its language
are instructive.
HARDIMAN, Circuit Judge, dissenting in part, in an opinion in
which Judges CHAGARES and JORDAN join, and which
Judges BARRY and SMITH join for all except Part V.
All members of the Court sitting en banc agree that the
District Court correctly determined that Boyd’s claim was not
procedurally defaulted. As for Boyd’s claim of ineffective
assistance of counsel, however, nine judges agree that the
District Court erred when it conditionally granted Boyd a writ
of habeas corpus. Although I agree that the writ should not have
issued, I must respectfully dissent from the six-judge majority
which holds that the District Court’s error requires a remand.
Boyd should be denied habeas relief for two independent
reasons. First, pursuant to the Supreme Court’s decisions in
Tollett v. Henderson, 411 U.S. 258 (1973), and Mabry v.

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84
Johnson, 467 U.S. 504 (1984), Boyd’s guilty plea — which he
candidly admits was knowing, intelligent, and voluntary —
superseded and rendered immaterial any ineffective assistance
of counsel that preceded it. Second, even assuming that Tollett
and Mabry do not apply, Boyd cannot show prejudice under
Strickland v. Washington, 466 U.S. 668 (1984).
I.
In the summer of 2000 and one month before his
twentieth birthday, Boyd was living at home with his parents
when he decided to pass the time by drinking in a park with
William Carpenter, Raymond Jones, and a few other friends. In
a fit of bravado, Jones wagered that he could drink ten shots of
alcohol in ten minutes. After Boyd and Carpenter refused to pay
Jones for what can best be described as a Pyrrhic victory, an
argument ensued and a short time later Boyd retrieved an
aluminum bat and beat Jones with it. Jones lay unconscious and
bleeding on the ground for some time before Boyd and
Carpenter took him to the hospital. Jones suffered permanent
brain injuries which left him confined to a wheelchair. Boyd
initially attempted to conceal his role in the crime by hiding the
baseball bat and fabricating an alibi. Five days after the attack,
Boyd confessed to police.
The Commonwealth charged Boyd with attempted
murder, aggravated assault, simple assault, reckless
endangerment, tampering with evidence of a crime, and
possession of an instrument of crime. Boyd’s parents posted
bail and hired a family friend, attorney Guy Sciolla, to represent
their son. During the pretrial phase, the Commonwealth
contacted Sciolla and proposed a plea agreement that included

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The terms of this initial plea offer are disputed. Boyd28
contends that the offer was to recommend a 4-8 year prison
sentence while the Commonwealth insists that the recommended
term was 4-10 years. Although the District Court appeared to
agree with Boyd, its remedy suggests that it accepted the
Commonwealth’s characterization. The disparity is immaterial
to this opinion.
There is considerable ambiguity about what Sciolla29
meant when he testified that he rejected the initial plea offer.
Boyd insists that Sciolla rejected the initial plea offer before
Boyd learned of it. The Commonwealth maintains that the offer
was still on the table if Boyd later had expressed an interest in
it. This dispute is immaterial as well.
85
a recommended sentence of 4-8 years of imprisonment.28
Sciolla telephoned Boyd’s mother, informed her of this offer,
and asked her to communicate it to Boyd. Sciolla also advised
Boyd’s mother that the offer was unacceptable, and asked her to
tell Boyd as much. She did so, and Sciolla rejected the offer.29
Thus, Boyd himself never was asked to accept or reject the
initial plea offer, and there is no evidence that the trial court
approved it or was even aware of its existence.
After he rejected the initial plea offer, Sciolla negotiated
a second deal with the Commonwealth pursuant to which Boyd
would enter an open plea to the charges of aggravated assault
and possession of an instrument of crime. In exchange, the
Commonwealth agreed to nolle prosequi the charges of
attempted murder, simple assault, reckless endangerment, and
evidence tampering. On Sciolla’s advice, Boyd accepted this

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86
second offer, and pleaded guilty to the two aforementioned
charges before the Honorable Gary S. Glazer of the Court of
Common Pleas of Philadelphia County.
About two months later, Judge Glazer sentenced Boyd to
a term of imprisonment of 8-22 years. Boyd appealed and Judge
Glazer issued a written opinion in which he found that Boyd
entered a knowing, intelligent, and voluntary plea of guilty after
having signed a written guilty plea, which was supplemented by
an extensive oral colloquy. Judge Glazer reviewed the details
of the oral colloquy — which included an admonition that Boyd
could be sentenced to “anything up to 12 and a half to 25 years
in prison,” App. 159 — and concluded: “nothing more could
have been done to ensure that [Boyd’s] guilty plea was knowing,
intelligent and voluntary.” App. 93.
In his direct appeal to the Pennsylvania Superior Court,
Boyd’s second lawyer, Thomas Quinn, argued that trial counsel
(Sciolla) was ineffective by failing to discuss the relative merits
of accepting the Commonwealth’s initial plea offer. Quinn
asserted that Sciolla had communicated the initial plea offer “to
[Boyd] and his parents,” and that Boyd “accepted the advice of
counsel, and rejected the plea.” App. 135. In support of this
claim, Boyd submitted an affidavit in which he admitted that
Sciolla “told me, through my mother” of the initial plea offer.
App. 116. Boyd did not attack the validity of his open guilty
plea, but the Superior Court noted nonetheless that Boyd’s
“guilty plea was entered knowingly, intelligently, and
voluntarily.” App. 88. The Superior Court affirmed the
judgment of sentence, finding that Boyd’s own affidavit
conceded that he knew about the initial plea offer, but “decided
to take his chances on the discretion of the court as to

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87
sentencing.” App. 85-86. The Pennsylvania Supreme Court
denied allocatur.
Upon the conclusion of direct review, Boyd’s third
counsel, Cheryl Sturm, filed a collateral challenge under
Pennsylvania’s Post Conviction Relief Act (PCRA), 42 PA.
CONS. STAT. ANN. § 9541 et seq., in which Boyd alleged for the
first time that Sciolla provided ineffective assistance when he
rejected the initial plea offer without first discussing it with him.
Boyd also argued that Quinn had rendered ineffective assistance
by failing to present all of the pertinent facts on direct appeal.
Significantly, Boyd did not challenge the validity of his guilty
plea.
The PCRA court denied the application, holding that
Boyd’s claims were previously litigated under 42 PA. CONS.
STAT. ANN. § 9543(a)(3) and, in an alternative holding,
explained that Boyd’s claim against Sciolla would fail on its
merits. The Superior Court affirmed on the basis that Boyd’s
claims against Sciolla and Quinn under Strickland were
previously litigated, and noted that Boyd’s “own affidavit
conceded trial counsel informed him of the existence of the first
plea offer, which [Boyd] chose not to accept.” App. 71.
During the pendency of his PCRA application, Boyd filed
an initial and an amended petition for writ of habeas corpus
(collectively, Petition) under 28 U.S.C. § 2254, in which he
reiterated the same Strickland claims against Sciolla and Quinn
that he had raised in his PCRA application. The case was
assigned to United States Magistrate Judge Peter B. Scuderi,
who held an evidentiary hearing at which Boyd, Sciolla, and
Quinn testified. Once again, Boyd failed to allege in his Petition
that his guilty plea was not knowing, intelligent, or voluntary.

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The Magistrate Judge should not have addressed this30
issue, because Boyd’s failure to raise it at any point in the state
court proceedings constituted a procedural default. See
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Albrecht
v. Horn, 471 F.3d 435, 459-60 (3d Cir. 2006) (vacated on other
grounds).
88
Nevertheless, at some point that issue appeared to have been
joined before the Magistrate Judge. In his Report and
Recommendation (R&R), Magistrate Judge Scuderi specifically
addressed the issue, noting that Boyd’s guilty plea was
constitutionally valid because the thorough colloquy “belie[d]
any claim [Boyd] would make regarding the voluntary and
knowing nature of his plea.” App. 25. The Magistrate Judge
recommended that the District Court deny Boyd’s Petition
because it failed on the merits under Strickland.30
Following the adverse R&R, Boyd filed objections in
which he alleged that the Magistrate Judge “misperceive[d] the
nature of [his] claims. [Boyd] is not claiming the guilty plea
was not knowing, intelligent and voluntary. . . . [Boyd] does not
want to take back the plea.” Boyd v. Warden, Civ. No. 06-491,
Dkt. 18 at 6 (E.D. Pa. Dec. 19, 2006). Boyd argued that he was
entitled to a writ of habeas corpus because Sciolla’s failure to
communicate the Commonwealth’s plea offer directly to him
constituted ineffective assistance that prejudiced him under
Strickland.
The District Court agreed with Boyd and rejected the
R&R. Applying de novo review without holding any hearing,
the District Court found that Boyd was entitled to relief under
Strickland because: (1) Sciolla’s failure to speak directly with

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89
Boyd before rejecting the Commonwealth’s initial plea offer
was per se deficient; and (2) Boyd was prejudiced because he
ultimately received a sentence which was more than double the
sentencing guidelines range under the initial offer. The District
Court concluded that because Boyd should be returned to the
position he would have been in but for Sciolla’s ineffectiveness,
the writ should issue unless the Commonwealth revived the
original plea offer. The District Court also noted that Boyd
abandoned his Strickland claim as to Quinn.
The Commonwealth filed a motion for reconsideration,
which the District Court denied. The Commonwealth also filed
a motion to stay the issuance of the writ pending appeal, but the
District Court denied that motion as well.
II.
The Commonwealth filed a timely appeal in this Court
and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. A three-judge panel heard argument on October 25, 2007.
This Court granted initial rehearing en banc, and oral argument
was held before the full Court on November 19, 2008. Although
the appeal presents two important issues affecting our habeas
corpus jurisprudence — one procedural and one substantive —
the extensive briefing and oral argument presented to the Court
en banc focused entirely on the substantive issue.
III.
We begin by addressing the Commonwealth’s procedural
challenge, viz., that Boyd’s claims are unexhausted and
procedurally defaulted. Our review is plenary. See Holloway v.
Horn, 355 F.3d 707, 713 (3d Cir. 2004). As we will explain, the
Commonwealth’s arguments are premised on a fundamental

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misunderstanding of the import of Pennsylvania’s “previously
litigated” rule. See 42 PA. CONS. STAT. ANN. § 9543(a)(3).
Because this rule has generated confusion, we will discuss its
ramifications for the procedural default analysis at some length.
Under the PCRA, a petitioner cannot obtain review on
the merits unless he can show that an “allegation of error has not
been previously litigated or waived.” Id. An allegation is
“previously litigated” if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled
on the merits of the issue” or the allegation “has been raised and
decided in a proceeding collaterally attacking the conviction or
sentence.” 42 PA. CONS. STAT. ANN. §§ 9544(a)(2) and (3).
Furthermore, “an issue may not be relitigated merely because a
new or different theory is posited as a basis for reexamining an
issue that has already been decided.” Commonwealth v. Senk,
437 A.2d 1218, 1220 (Pa. 1981).
Boyd did not dispute that his Strickland claim was
“previously litigated” for purposes of the PCRA, but he argued
that this did not constitute a procedural bar to his federal habeas
claim. The District Court agreed, stating: “[t]his court agrees
with the determination of other courts in this district holding that
the PCRA’s ‘previously litigated’ rule is not a state procedural
requirement within the meaning of Coleman [v. Thompson, 501
U.S. 722, 729 (1991)].”

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91
A.
It is axiomatic that “a habeas petitioner is required to
exhaust available state remedies before requesting habeas relief
in federal court.” McMahon v. Fulcomer, 821 F.2d 934, 940 (3d
Cir. 1987). Exhaustion is accomplished when a petitioner
“presents” in the state courts substantially the same claim he
asks the federal courts to review. See Johnson v. Pinchak, 392
F.3d 551, 556 (3d Cir. 2004). “The habeas petitioner carries the
burden of proving exhaustion of all available state remedies.”
Lambert v. Blackwell (Lambert I), 134 F.3d 506, 513 (3d Cir.
1997) (citation omitted).
In this case, the District Court found that Boyd exhausted
his claim that Sciolla was ineffective in rejecting the initial plea
offer without consulting his client. The record supports the
District Court’s conclusion because Boyd made this argument
to the PCRA courts. Additionally, Boyd alerted the PCRA
courts to the federal nature of his claim by citing Strickland,
which satisfied the presentation requirement. See Baldwin v.
Reese, 541 U.S. 27, 29 (2004); see also Hameen v. Delaware,
212 F.3d 226, 247 (3d Cir. 2000). That the courts denied
Boyd’s claim on procedural grounds does not change the fact
that he “presented” it. See Holloway, 355 F.3d at 717-18.
Although the Commonwealth concedes that Boyd
presented this federal claim in the PCRA proceedings, it argues
that the District Court’s finding of exhaustion is contrary to
Wenger v. Frank, 266 F.3d 218 (3d Cir. 2001), where we held
that a habeas petitioner who neglected to file a timely petition
for allocatur to the Pennsylvania Supreme Court failed to
exhaust his claims. Id. at 223-24. Significantly, however,
Boyd’s claim arose after the Pennsylvania Supreme Court issued

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92
In re: Exhaustion of State Remedies in Criminal and Post
Conviction Relief Cases, No. 218 Judicial Administration
Docket No. 1 (Order 218). Since Wenger we have held that
Order 218 “renders review from the Pennsylvania Supreme
Court ‘unavailable’ for purposes of exhausting state court
remedies under § 2254(c).” Lambert v. Blackwell (Lambert II),
387 F.3d 210, 233 (3d Cir. 2004). Accordingly, we hold that
Boyd exhausted his Strickland claim in state court. See Cristin
v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002).
B.
Our conclusion that Boyd exhausted his Strickland claim
does not answer the question of procedural default, however,
because the Supreme Court has made clear that a procedural
default “forecloses relief even when the petitioner has exhausted
his remedies.” See O’Sullivan v. Boerckel, 526 U.S. 838, 850
(1999) (Stevens, J., dissenting); see also id. at 848 (O’Connor,
J., writing for the majority) (“We do not disagree with Justice
Stevens’ general description of the law of exhaustion and
procedural default” and “[s]pecifically, we do not disagree with
his description of the interplay of these two doctrines.”).
Whereas the exhaustion inquiry asks whether a claim was
“presented to the state courts,” the procedural default analysis
considers whether the claim was “presented in the manner that
state law requires.” See Edwards v. Carpenter, 529 U.S. 446,
452 (2000) (emphasis added) (internal quotation marks
omitted). Thus, a petitioner who does not “fairly present” his
claim to the state courts is barred from presenting it to the
federal courts. Cristin, 281 F.3d at 410.
To understand why Pennsylvania’s rule against

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93
relitigating claims in PCRA proceedings that have been
“previously litigated” under the current statute does not operate
as a procedural default, we need only consider the Pennsylvania
rule in light of the “adequate and independent” state ground
doctrine, of which the procedural default rule is but one
application. See Villot v. Varner, 373 F.3d 327, 334 (3d Cir.
2004) (citation omitted). That doctrine precludes a federal
habeas court from addressing a question of federal law decided
by a state court “if the decision of that court rests on a state law
ground that is independent of the federal question and adequate
to support the judgment.” Coleman, 501 U.S. at 729. “A state
rule provides an adequate and independent basis for precluding
federal review if (1) the rule speaks in unmistakable terms; (2)
all state appellate courts refused to review the petitioner’s claims
on the merits; and (3) their refusal was consistent with other
decisions.” Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)
(citations omitted). Pennsylvania law provides that a claim
raised in a PCRA petition is “previously litigated” if the
Superior Court decided the issue “on the merits” on direct
appeal. See 42 PA. CONS. STAT. ANN. § 9544(a)(2). Thus, when
a PCRA court refuses to reach the merits of an issue because it
was “previously litigated,” it confirms that a Pennsylvania
appellate court already rendered a decision on the merits.
Because this rule assumes the inverse of one of the
preconditions of a procedural default — viz., that “all state
appellate courts refused to review the petitioner’s claims on the
merits,” see Nara, 488 F.3d at 199 (emphasis added) — it is not
an “independent” state law ground.
The Commonwealth contends that our decision in
Sistrunk v. Vaughn, 96 F.3d 666 (3d Cir. 1996), commands a
different result. We disagree. In Sistrunk, we held that the 1994

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94
version of § 9543(a)(3) was an adequate and independent state
law ground supporting procedural default. See id. at 674-75.
Significantly, however, that version of the statute provided that
a claim was “previously litigated” if “the trial court . . . ruled on
the merits of the issue and the petitioner did not appeal.” 42 PA.
CONS. STAT. ANN. § 9544(a)(1). Because Sistrunk did not raise
his claim on direct appeal, we concluded that the claim was
procedurally defaulted. See Sistrunk, 96 F.3d at 669, 673-75.
Nevertheless, writing for a unanimous panel, Judge Stapleton
explained the oxymoronic aspect of the statute insofar as it
defined unappealed claims as “previously litigated”:
The [previously litigated doctrine] foreclose[s]
state review in a PCRA proceeding of claims that
have been fully litigated and rejected on direct
appeal [as well as claims which were not
presented on direct appeal]. While such claims
and claims like Sistrunk’s are both categorized by
the statute as “previously litigated,” the two
categories are distinct for purposes of the
adequate and independent state ground doctrine.
. . . Unlike here, in a situation where a claim has
been “previously litigated” and collateral review
is barred by § 9544(a)(3) — because the claim has
been fully litigated and rejected on direct review
— the petitioner will have exhausted state
remedies and the state appellate courts will have
had the required opportunity to address the federal
claim. Nothing here said is intended to address
whether federal habeas review would be available
with respect to claims fully litigated on direct
review in such a case.

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95
Id. at 675 n.11 (emphasis added). In 1995, the Pennsylvania
legislature amended the statute to clarify that unappealed claims
are “waived,” and not “previously litigated” as they had been
under the prior version of the statute. See 42 PA. CONS. STAT.
ANN. § 9544(a) and (b).
In the case at bar, this distinction makes all the
difference. Because the state courts invoked the “previously
litigated” rule to decline reconsideration of Boyd’s Strickland
claim on the ground that it had been litigated on direct appeal,
and did not find this claim to be “waived” within the meaning of
§ 9544(b), we are presented with the situation anticipated by the
panel in Sistrunk. In light of the Supreme Court’s acceptance of
Justice Stevens’s characterization of the procedural default
doctrine as a “waiver rule,” see O’Sullivan, 526 U.S. at 850, we
conclude that Sistrunk’s holding is limited to those cases arising
under the “waiver” section set forth in § 9544(b).
In its current form, the “previously litigated” rule
codified in § 9544(a) simply relieves Pennsylvania courts of the
burden of revisiting issues which are res judicata. But res
judicata is not an adequate state law ground to support a
procedural default. See, e.g., Daniels v. Knight, 476 F.3d 426,
431 (7th Cir. 2007); see also Stevens v. Zant, 968 F.2d 1076,
1089 (11th Cir. 1992). Even the courts of appeals that have yet
to hold res judicata-based rules “inadequate,” have refused to
treat them as a basis for procedural default. See Carter v.
Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (California’s bar
against relitigation in state habeas proceedings of claims already
litigated on direct appeal is “neither a ruling of procedural
default nor a ruling on the merits”); see also Page v. Lee, 337
F.3d 411, 415 n.1 (4th Cir. 2003) (although North Carolina’s bar

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Only the Sixth Circuit has held to the contrary. See31
Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006) (Ohio’s res
judicata rule, which bars relitigation of issues that were raised
or could have been raised, is an ‘adequate and independent’
ground justifying default) (citations omitted). Following Carter,
the Sixth Circuit explained: “There are two variants of res
judicata under Ohio law for collateral attacks on convictions.
The first variant is when a petitioner could have, but failed to,
bring a claim on direct review. The second variant occurs in
state court when a claim was actually brought and litigated on
direct appeal. This second variant of res judicata cannot form
the basis of federal procedural default, however, because the
petitioner did not fail to comply with a state procedural rule-
namely that claims must be raised on direct appeal if possible.”
Durr v. Mitchell, 487 F.3d 423, 434 (6th Cir. 2007) (citation
omitted) (emphasis in original). Thus, inasmuch as Carter’s
failure to distinguish between the variant of the Ohio rule
governing issues that were previously litigated, and the variant
which governed issues that were waived, its teachings are no
more helpful to our interpretation of the current version of §
9544(a) than Sistrunk.
96
against relitigation of issues decided on appeal was an adequate
and independent state procedural rule, it was “not a state
procedural bar that prevents federal habeas review”).31
Even apart from § 9544(a)’s “adequacy” or
“independence,” it is clear that the “previously litigated” rule
insulates state courts from duplicative effort but does not
preclude federal habeas review. When a PCRA court invokes
the “previously litigated” rule, it does so not because an

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Our confidence in this conclusion is bolstered by our32
recognition that characterizing § 9544(a)’s “previously litigated”
requirement as a basis for procedural default would lead to
absurd consequences in practice. If a “previously litigated”
claim were to constitute a procedural default, we would consider
whether Boyd could show “cause and prejudice” or a
“fundamental miscarriage of justice” to excuse that default. See
Coleman, 501 U.S. at 750. “To show ‘cause,’ the petitioner
must demonstrate some objective factor external to the defense
that prevented compliance with the state’s procedural
requirements.” Holloway, 355 F.3d at 716 n.3 (citation and
internal quotation marks omitted). Petitioner’s noncompliance
97
applicant has failed to present his claims, but because he has
already presented those claims at least once before and received
a decision on the merits. This situation may implicate res
judicata, but “[f]ederal review is precluded only by procedural
forfeitures, not by res judicata concerns.” Page v. Frank, 343
F.3d 901, 907 (7th Cir. 2003) (emphasis added) (citations
omitted). Viewed from this perspective, treating Pennsylvania’s
“previously litigated” rule as a procedural default would
contravene the very purpose of that doctrine: to ensure that state
courts have had “an opportunity to address [a petitioner’s
claims] in the first instance.” Coleman, 501 U.S. at 731-32.
State rules that preclude relitigation on collateral review of
claims already decided on direct appeal serve a salutary purpose
in state courts, but they are not the kind of “state procedural
requirement” that lead to a default of habeas claims in federal
court, which typically occurs because a petitioner fails to raise
an issue, not because he raises that issue twice. See, e.g.,
Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004). This is32

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would be his “litigation” of the issue on direct appeal. The
Kafkaesque absurdity of asking a petitioner to excuse his own
litigation of an issue on direct appeal — which litigation is
required by the doctrines of exhaustion and procedural default
— demonstrates why the “previously litigated” rule is not the
kind of “procedural requirement” that Coleman envisioned.
98
consistent with Supreme Court dicta. See Ylst v. Nunnemaker,
501 U.S. 797, 804 n.3 (1991) (noting that a state decision based
on ineligibility for further state review does not constitute a
procedural default).
For all of the foregoing reasons, we hold that the District
Court correctly determined that Boyd exhausted his Strickland
claim in the state courts, and that this claim was not
procedurally defaulted by Pennsylvania’s bar against the
relitigation of “previously litigated” claims in PCRA
proceedings.
IV.
Turning to the merits, in preparation for en banc review,
we ordered the parties to brief numerous issues including: (1)
the appropriate standard of review in light of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA); (2) the
propriety of the Magistrate Judge’s evidentiary hearing; (3) and
the District Court’s de novo review of the facts found by the
Magistrate Judge. Review of these complex questions was
essential to a proper evaluation of Boyd’s claim that Sciolla
rendered ineffective assistance of counsel with respect to the
Commonwealth’s initial guilty plea offer. Ultimately, however,
the adequacy of Sciolla’s representation with respect to the

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99
Commonwealth’s initial guilty plea offer is immaterial because
Boyd’s knowing, intelligent, and voluntary guilty plea
“represents a break in the chain of events which has preceded it
in the criminal process.” Tollett v. Henderson, 411 U.S. 258,
267 (1973). That is, once Boyd pleaded guilty, he forfeited his
ability to challenge any constitutional deficiency that came
before that plea — provided, of course, that the plea was validly
entered.
In Tollett, Henderson, a state prisoner who had pleaded
guilty and was sentenced to 99 years in prison, sought federal
habeas relief because “Negroes had been excluded from the
grand jury which indicted him in 1948.” Id. at 259. The district
court granted the writ of habeas corpus and ordered Henderson’s
release, finding that he did not waive his right to be indicted by
a constitutionally selected grand jury. Id. at 261. The Court of
Appeals for the Sixth Circuit affirmed, holding that there was no
“intentional relinquishment or abandonment of a known right or
privilege.” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).
The Supreme Court reversed, holding that Henderson
was not “entitled to release from custody solely by reason of the
fact that the grand jury which indicted him was
unconstitutionally selected.” Id. at 269. Instead, once
Henderson pleaded guilty, he forfeited his right to challenge any
constitutional violations that antedated the plea. See id. at 266.
The Court reasoned:
We thus reaffirm the principle recognized in the
Brady trilogy: a guilty plea represents a break in
the chain of events which has preceded it in the
criminal process. When a criminal defendant has

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100
solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he
may not thereafter raise independent claims
relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.
He may only attack the voluntary and intelligent
character of the guilty plea by showing that the
advice he received from counsel was not within
the standards set forth in McMann [v. Richardson,
397 U.S. 759 (1970)].
Tollett, 411 U.S. at 267. “The focus of federal habeas inquiry is
the nature of the advice and the voluntariness of the plea, not the
existence as such of an antecedent constitutional infirmity.” Id.
at 266 (emphasis added). Because the record was unclear
whether Henderson was “precluded from raising the issue of the
voluntary and intelligent nature of his guilty plea,” id. at 268,
the Supreme Court remanded the case.
Eleven years after Tollett, the Supreme Court considered
the case of George Johnson, who was convicted in Arkansas
state court of burglary, assault, and murder. See Mabry v.
Johnson, 467 U.S. 504 (1984). Although Johnson was
sentenced to concurrent sentences of 21 years for the burglary
and 12 years for the assault, the Arkansas Supreme Court
vacated the murder conviction. Id. at 505. Upon remand,
negotiations ensued and the prosecutor offered Johnson a plea
bargain on the murder charge that included a recommendation
for a concurrent sentence of 21 years. Id. at 505-06. Three
days later, Johnson accepted the prosecutor’s offer. Claiming
that he was mistaken, the prosecutor purported to withdraw the
offer that Johnson had already accepted, and offered a plea

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101
bargain that included a recommendation for a consecutive
sentence of 21 years. Id. at 506. Johnson initially rejected the
prosecution’s second offer, but later accepted it and received a
consecutive sentence of 21 years. Id.
Presumably because he learned that he could have
enforced the initial plea offer for a recommendation for a
concurrent sentence, Johnson filed a habeas petition in federal
court. The district court denied the petition, but the court of
appeals reversed, holding that the prosecution’s initial offer was
enforceable. Id. at 506-07.
Writing for a unanimous Supreme Court, Justice Stevens
began by noting: “It is well settled that a voluntary and
intelligent plea of guilty made by an accused person, who has
been advised by competent counsel, may not be collaterally
attacked.” Id. at 508. “It is only when the consensual character
of the plea is called into question that the validity of a guilty
plea may be impaired.” Id. at 508-09. The Court summed up its
terse opinion by noting that Johnson “was fully aware of the
likely consequences when he pleaded guilty; it is not unfair to
expect him to live with those consequences now.” Id. at 511.
Like Henderson and Johnson, here Boyd does not
challenge the validity of his guilty plea. Indeed, both in his brief
before the en banc court and at oral argument, Boyd conceded
that his plea was knowing, intelligent, and voluntary. Instead,
Boyd claims ineffective assistance of counsel at a point that
preceded the entry of the valid guilty plea. In light of the
Supreme Court’s decisions in Tollett and Mabry, Boyd’s valid
guilty plea should be the beginning and the end of the matter.
Neither counsel for Boyd nor the Federal Defender amici

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102
even cite, much less attempt to distinguish, Tollett. Both briefs
attempt to distinguish Mabry, but the efforts are unpersuasive.
They claim that counsel in Mabry was competent whereas
Sciolla was ineffective for Boyd. This is a false distinction.
Both here and in Mabry, counsel were arguably ineffective in
their representation prior to their clients’ guilty pleas. However,
neither Boyd nor the plaintiff in Mabry contended that counsel
was ineffective with regard to the plea itself. In this case, on the
contrary, Boyd’s repeated assertion that he knowingly,
intelligently, and voluntarily accepted the terms of the second
plea offer is a concession that Sciolla was not ineffective in his
representation with regard to that plea. Indeed, it is a logical
and legal impossibility to say that one’s decision was knowing,
intelligent, and voluntary if it was infected by constitutionally
deficient advice from counsel.
In Mabry, counsel could have filed a motion to enforce
the 21-year concurrent sentence deal because his client had
accepted the offer before it was withdrawn. See United States
v. Moscahlaids, 868 F.2d 1357, 1361 (3d Cir. 1989) (“Although
a plea agreement occurs in a criminal context, it remains
contractual in nature and is to be analyzed under contract-law
standards.”). Under contract principles, one may accept an offer
at any point until the offer is withdrawn. See RESTATEMENT
(SECOND) OF CONTRACTS § 35 (1981).
Here, Sciolla could have — and should have —
communicated the Commonwealth’s initial offer directly to
Boyd rather than “through his mother.” Nonetheless, there is no
question as to the adequacy of Sciolla’s advice that the case was
not triable, nor is it disputed that Boyd entered a valid guilty
plea. This valid plea dooms Boyd’s claim for habeas relief in

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Like Boyd’s case, both Tollett and Mabry involved33
arguably ineffective assistance of counsel prior to the entry of a
valid guilty plea, whereas Strickland was a death penalty case
where the issue was whether counsel was ineffective during the
penalty phase after the entry of a valid guilty plea. Furthermore,
and perhaps more importantly, Mabry was decided one month
after Strickland and does not even mention Strickland.
Therefore, in my view, despite Strickland’s ubiquity, its
two-part test applies to cases alleging ineffective assistance in
conjunction with, or subsequent to, a guilty plea, but does not
apply to ineffectiveness antecedent to a valid guilty plea.
Judge Sloviter’s citation to Menna is not persuasive
because Menna is a waiver case and the state does not allege
that Boyd “waived” his right to bring his ineffective
assistance claim. As the Supreme Court explained in Tollett:
If the issue were to be cast solely in terms of
“waiver,” the Court of Appeals was
undoubtedly correct in concluding that there had
103
the same way that it doomed Johnson’s claim in Mabry.
In sum, because Tollett and Mabry foreclose Boyd from
challenging any constitutional violation antecedent to his valid
guilty plea, I would reverse the District Court’s conditional
grant of the writ of habeas corpus.
V.
A majority of the court holds that Tollett and Mabry do
not control Boyd’s case because Strickland applies instead.33

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been no such waiver here. But just as the guilty
pleas in the Brady trilogy were found to
foreclose direct inquiry into the merits of
claimed antecedent constitutional violations
there, we conclude that respondent’s guilty plea
here alike forecloses independent inquiry into
the claim of discrimination in the selection of
the grand jury.
411 U.S. at 266.
Judges Barry and Smith do not join Part V of this Opinion, not34
because they disagree that Boyd’s claim would fail under the
Strickland test, but because they believe that it is unnecessary to
reach the issues addressed in this section.
104
However, even if this Court were to ignore Tollett and Mabry,
Boyd’s claim would fail under the Strickland test.34
It is important to recall what we have been asked to
decide in this appeal. The parties focus on whether Sciolla was
constitutionally ineffective for rejecting the Commonwealth’s
initial offer of 4-8 years imprisonment without first discussing
it with Boyd and, if so, whether Boyd was prejudiced thereby.
I accept this general characterization of the issue, but qualify it
in two respects. First, our Court does not assess the merits of
this habeas petition as we would have had the issue been raised
on direct appeal; as Chief Judge Scirica’s opinion explains, we
must remain faithful to AEDPA’s deferential standard of review.
See 28 U.S.C. § 2254(d). Second, because the issue of
Strickland prejudice turns on the facts, we must consider only

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105
those facts which were either developed in the state court, or
properly developed in the District Court under AEDPA. See 28
U.S.C. § 2254(e)(2).
A.
The per curiam opinion instructs the District Court to
decide on remand whether the Magistrate Judge should have
held an evidentiary hearing in this case. In my view, such a
hearing is precluded by AEDPA.
A federal district court’s power to hold a hearing is
limited by AEDPA. This restriction is consistent with the
principle that “[f]ederal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner
made insufficient effort to pursue in state proceedings.” Taylor,
504 F.3d at 437 (quoting Williams v. Taylor, 529 U.S. 362, 437
(2000)). Here, in ordering an evidentiary hearing, the
Magistrate Judge erroneously failed to ascertain whether
AEDPA authorized such a hearing. This error was significant
because the record reflects that Boyd “has failed to develop the
factual basis” of his claim in state court. 28 U.S.C. §
2254(e)(2).
Boyd attempted to “develop the factual basis” for his
claim by requesting an evidentiary hearing in state court. 28
U.S.C. §§ 2254(e)(2). But because Pennsylvania law provides
that the right to an evidentiary hearing in post-conviction
proceedings is not automatic, see Commonwealth v. Jordan, 772
A.2d 1011, 1014 (Pa. Super. 2001), Boyd was required to offer
evidence and argument in support of his claims of counsel
ineffectiveness and prejudice. See Commonwealth v. Jones,
942 A.2d 903, 906-07 (Pa. Super. 2008) (noting that “a hearing

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106
will be rendered superfluous if the court can determine from the
existing record that there has been no prejudice to the
appellant”); see also Pa. R. Crim. P. 907(1). When a defendant
attempts to show the need for an evidentiary hearing by
providing affidavits, those affidavits must “tie everything
together”; otherwise, he will not be entitled to a hearing.
See Commonwealth v. Hall, 867 A.2d 619, 632 (Pa. Super.
2005).
Reading the affidavits Boyd submitted and the pleadings
filed by counsel in light of the fact that Boyd knew about the
initial plea offer yet decided to “take his chances with the
discretion of the court,” the state court determined that no
evidentiary hearing was warranted. The record confirms that
Boyd’s state court offer of proof was insufficient to establish
prejudice, and did not put the court on notice that he could
establish cause. Because the affidavits Boyd submitted were not
sufficiently relevant or comprehensive to establish both prongs
of his ineffectiveness claim in state court, Boyd failed to
develop the factual basis for his ineffective assistance claims
before coming to federal court. See, e.g., Owens v. Frank, 394
F.3d 490, 500 (7th Cir. 2005) (finding the petitioner who was
denied a hearing in state court did not develop the factual record
diligently under § 2254(e)(2) because, inter alia, the affidavits
he submitted to the state court omitted key factual allegations
known to him).
Given that Boyd failed to meet Pennsylvania’s
prerequisites for an evidentiary hearing, it follows that he is not
entitled to a hearing in federal court. Section 2254(e)(2) bars a
hearing unless the petitioner “diligently but unsuccessfully seeks
an evidentiary hearing in state court.” Taylor, 504 F.3d at 444

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Judge Sloviter contends that “if a petitioner seeks and35
is denied a hearing in state court, there is nothing in § 2254(e)(2)
that bars the district court from granting a hearing.” See Sloviter
Typescript Op. at 72. Such a holding would expand
considerably this Court’s holding in Taylor, which allows for an
107
(emphasis added). As the Supreme Court explained in Williams,
“[d]iligence will require in the usual case that the prisoner, at a
minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.” See 529 U.S. at 437
(emphasis added). As the emphasized portion of this quotation
reflects, the mere act of seeking and being denied a hearing in
state court is not enough to satisfy § 2254(e)(2); rather, Williams
requires that the petitioner do so “in the manner prescribed by
state law.” Other courts of appeals have recognized that merely
seeking and being denied a hearing in state court does not entitle
a defendant to a hearing in federal court under § 2254(e)(2).
See, e.g., Teti v. Bender, 507 F.3d 50, 62 (1st Cir. 2007); see
also Smith v. Bowersox, 311 F.3d 915, 921-22 (8th Cir. 2002);
Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (“Mere
requests for evidentiary hearings will not suffice; the petitioner
must be diligent in pursuing the factual development of his
claim.”). As explained above, Boyd may have “sought” an
evidentiary hearing in state court, but he did not present
sufficient evidence in that court to permit the inference that he
was in any way prejudiced by Sciolla’s handling of the initial
plea. Nor did he argue that a hearing was necessary to develop
evidence of prejudice. Pennsylvania law did not require the
state courts to give Boyd a hearing until he did so; because Boyd
never met this standard, he has failed to prove diligence such
that he should be entitled to a hearing in federal court.35

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evidentiary hearing only when the petitioner has been “diligent”
in state court.
Furthermore, Judge Sloviter’s interpretation is
inconsistent with the plain language of § 2254(e)(2). Had
Congress intended to make a habeas petitioner’s entitlement to
a federal hearing dependent upon whether the state court had
held one, it could have done so by replacing the language
“applicant has failed to develop the factual basis of” in §
2254(e)(2) with the phrase “state court has failed to hold a
hearing on.” Section 2254(e)(2) does not state that the
development of a factual claim requires an evidentiary hearing
in state court and we should not assume that this is the only way
a factual record can be developed. See United States ex rel.
Hampton v. Leibach, 347 F.3d 219, 240 (7th Cir. 2003)
(observing that affidavits could develop the factual basis for a
counsel ineffectiveness claim for purposes of § 2254(e)(2)); see
also Taylor, 504 F.3d at 436 (rejecting a petitioner’s claim that,
because the PCRA court declined to hold an evidentiary hearing
based on an inadequate state procedural default rule, he was
entitled to a hearing in federal court). Under Judge Sloviter’s
reading of § 2254(e)(2), a state prisoner could obtain an
evidentiary hearing in federal court by filing an unsupported
request for a hearing in state court, followed by a federal habeas
petition which complains of the state court’s failure to hold a
hearing. This reading of § 2254(e)(2) cannot be reconciled with
the Supreme Court’s decision in Williams, which required that
the state request be made “in the manner prescribed by state
law.” See 529 U.S. at 437.
108
Nor can Boyd show that the factual basis for his claim

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109
“could not have been previously discovered” through his
diligence — one of the “other stringent requirements” of 28
U.S.C. § 2254(e)(2)(A)(ii). See Williams, 529 U.S. at 437. By
the end of his guilty plea hearing, Boyd knew all of the facts he
needed to know to claim that Sciolla was ineffective. Boyd
knew that Sciolla had not discussed the initial plea with him
directly before rejecting it, and he knew that the potential
sentencing range was far greater than the 4-8 years that the
initial plea offer contemplated. And by the time he was
sentenced, Boyd knew the facts necessary to claim prejudice
insofar as he knew that he was receiving a higher sentence than
4-8 years and that he would have preferred the 4-8 year plea
offer. Nothing prevented Boyd — who was represented by
counsel each step of the way — from providing comprehensive
(or at least, complete) affidavits to support his factual
allegations. Yet Boyd did not do so in state court, even though
such evidence was available to him. Thus, his efforts to develop
the state court record cannot be considered diligent. See
Commonwealth v. Lambert, 603 A.2d 568, 579 (Pa. 1992)
(affirming a trial court’s denial of an evidentiary hearing where
the evidence to be offered “could have been discovered much
earlier with due diligence”).
The Supreme Court has recognized that “AEDPA
generally prohibits federal habeas courts from granting
evidentiary hearings when applicants have failed to develop the
factual bases for their claims in state courts.” Schriro v.
Landrigan, 550 U.S. 465, 473 n.1 (2007) (citing 28 U.S.C.
§ 2254(e)(2)). Though AEDPA leaves open “the potential for
harsh results in some cases, we are not free to rewrite the statute
that Congress has enacted.” Dodd v. United States, 545 U.S.
353, 359 (2005) (denying a habeas petition based upon

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To the extent Judge Sloviter believes that Townsend v.36
Sain, 372 U.S. 293 (1963), “actually required” the District Court
to grant Boyd a hearing notwithstanding the language of §
2254(e)(2), see Sloviter Typescript Op. at 77, she is incorrect.
Townsend described the circumstances in which a federal court
was required to grant an evidentiary hearing before AEDPA
became law. See Townsend, 372 U.S. at 313. As the Supreme
Court explained in Schriro, “[i]n cases where an applicant for
federal habeas relief is not barred from obtaining an evidentiary
hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a
hearing rests in the discretion of the district court,” as it did
before AEDPA under Townsend. Schriro, 550 U.S. at 1937
(emphasis added). As the emphasized language reflects, this
does not mean that Townsend requires hearings which are
forbidden by § 2254(e). Rather, Townsend reflects the pre-
AEDPA standard. As we explained in Campbell v. Vaughn, 209
F.3d 280, 286 (3d Cir. 2000): “AEDPA amended the federal
habeas statute in such a way as to limit the availability of new
evidentiary hearings on habeas review. . . . Prior to AEDPA,
new evidentiary hearings were required in several
circumstances. . . . AEDPA, in contrast, permits evidentiary
hearings on habeas review, but only in a limited number of
circumstances.” Id. at 286 (citation omitted) (emphasis in
110
AEDPA’s statute of limitations). That Boyd did not receive an
evidentiary hearing in state court is perhaps regrettable, but it is
a product of his own doing and should not be cured by granting
him a hearing in federal court in contravention of AEDPA.
Accordingly, I encourage the District Court on remand to review
the record as developed in state court alone without granting an
evidentiary hearing for further factual development.36

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original).
111
B.
In light of the foregoing considerations, the issue should
be framed as follows: In denying Boyd’s Strickland claim
against Sciolla, did the state courts render a decision that was
“contrary to” or involved an “unreasonable application of”
federal law as determined by the Supreme Court, or based on an
“unreasonable determination of the facts” in light of the
evidence presented in those courts?
1.
It is axiomatic that, to succeed on an ineffective
assistance of counsel claim, a petitioner must establish both
prongs of the test enunciated by the Supreme Court in
Strickland. That test requires Boyd to demonstrate: (1) his
attorney’s performance was deficient in the sense that it fell
below an objective standard of reasonableness; and (2) he
suffered prejudice as a result of the attorney’s deficient
performance. See Strickland, 466 U.S. at 687-88. The
Supreme Court has acknowledged that Strickland applies to
counsel’s conduct during plea negotiations. See Hill v.
Lockhart, 474 U.S. 52, 58 (1985). Thus, under Strickland, Boyd
must demonstrate that Sciolla’s act of telling the Commonwealth
that its initial plea offer was unacceptable before discussing the
matter with Boyd was deficient and that he was prejudiced by
the deficiency; that is, he must prove that counsel’s performance
“fell below an objective standard of reasonableness,” Strickland,
466 U.S. at 687-88, and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the

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Judge Sloviter criticizes my decision not to analyze the37
“cause” prong of Strickland. See Sloviter Typescript Op. at 66.
I decline to do so, however, in light of precedents of the
Supreme Court and the Third Circuit, and this decision should
not be misconstrued as an approbation of Sciolla’s conduct.
112
proceeding would have been different.” Id. at 694.
We need not consider the ineffectiveness prong, however,
if we determine that no prejudice resulted from counsel’s
conduct. Strickland approved of this approach explicitly:
Although we have discussed the performance
component of an ineffectiveness claim prior to the
prejudice component, there is no reason for a
court deciding an ineffectiveness claim to
approach the inquiry in the same order or even to
address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular, a court need not determine whether
counsel’s performance was deficient before
examining the prejudice suffered by the defendant
as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be
followed.
Id. at 697 (emphasis added). Our Court has followed this
approach. See McAleese v. Mazurkiewicz, 1 F.3d 159, 170-71
(3d Cir. 1993).37

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As explained above, the Magistrate Judge held an38
evidentiary hearing while laboring under the erroneous
conclusion that there were no state court facts warranting
AEDPA deference. This error required the District Court to
disregard the fruits of that hearing, and examine the record to
determine whether the state courts’ findings of fact were
113
To demonstrate prejudice, Boyd “must show a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Albrecht v. Horn, 485 F.3d 103,
127 (3d Cir. 2007) (internal quotation marks omitted). Where,
as here, a petitioner alleges that counsel’s ineffective assistance
cost him the opportunity to take a plea, he must demonstrate a
reasonable probability that, but for counsel’s ineffective
assistance, he would have accepted the foregone plea offer. See
Hill, 474 U.S. at 59; see also United States v. Jones, 336 F.3d
245, 254 (3d Cir. 2003); United States v. Day, 969 F.2d 39, 45
(3d Cir. 1992). This showing requires “some ‘objective
evidence’ that a petitioner would have accepted a plea offer.”
Jones, 336 F.3d at 254 (citation omitted); cf. Meyers v. Gillis,
142 F.3d 664, 668-69 (3d Cir. 1998) (finding ineffective
assistance in the context of a plea offer where the petitioner’s
testimony that he would have rejected a plea was corroborated
by other evidence in the record).
2.
With the foregoing standard in mind, we should conclude
that the state court record resolves the question of Strickland
prejudice. In his affidavit before the Superior Court on direct38

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reasonable in light of the evidence Boyd chose to place before
them. See Rolan v. Vaughn, 445 F.3d 671, 681 (3d Cir. 2006);
see also Lambert II, 387 F.3d at 234-35. Nevertheless, the
District Court’s only citation to the record was to Boyd’s
testimony at the evidentiary hearing that he would have accepted
the initial plea. Consequently, the District Court failed to assess
the reasonableness of the state courts’ disbelief of Boyd’s claim
that he would have accepted the initial plea offer based on the
evidence before them. This too was error. See Rolan, 445 F.3d
at 680-81.
Furthermore, as Chief Judge Scirica’s opinion notes, once
the Magistrate Judge conducted a hearing, the facts found by the
Magistrate Judge were entitled to deference by the District
Court, see Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995), and
could not be rejected without the benefit of a subsequent
evidentiary hearing in the District Court.
In summary, to the extent the District Court relied on the
evidentiary hearing transcript, it did so in violation of Rolan,
and to the extent the District Court made different findings of
fact based on that transcript, it did so in violation of Hill.
Because Judge Sloviter believes that the Magistrate39
Judge was “required” to hold an evidentiary hearing, see
Sloviter Typescript Op. at 73, she repeats the District Court’s
114
appeal, Boyd admitted that he was aware of the initial plea offer
and its rejection. Boyd was told several times during his guilty
plea hearing that the court could sentence him to 12½-25
years. He also stated that he had discussed his case with his39

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error by making no effort to distinguish the evidence before the
Superior Court from the evidence generated at the hearing
before the Magistrate Judge. Instead, like the District Court,
Judge Sloviter’s summary of the factual background relies on
evidence which was not before the state courts, but which was
presented for the first time to the Magistrate Judge. To remain
faithful to § 2254(e)(2), I have attempted to separate the
evidence that Boyd offered to the state courts from the much
more voluminous (and sometimes inconsistent) evidence that he
offered in federal court.
115
parents and Sciolla, was satisfied with Sciolla’s performance,
and still wanted to plead guilty, even though he knew he could
receive a 25-year prison sentence. During that same hearing,
Boyd was told the standard guidelines range, which coincided
roughly with the 4-8 year range contemplated in the original
plea offer. In light of this evidence, the state court found that
Sciolla informed Boyd of the initial plea offer and Boyd chose
not to accept it. This was a reasonable interpretation of the
transcript of the guilty plea hearing, which reflects that Boyd —
an adult who was found competent to stand trial — was told
about the possibility of a 12½-25 year sentence no fewer than
five times, stated he understood each time, and asked no
questions when invited to do so. Boyd’s pleadings and
affidavits — some of which do not even assert that he would
have elected to take the initial plea offer, and contradict later
affidavits on this point — reasonably are read as conceding his
knowledge of the initial plea offer and his assent to its

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On direct appeal in state court, Boyd’s counsel argued40
that Sciolla had communicated the initial plea offer “to [Boyd]
and his parents,” and that Boyd “accepted the advice of counsel
and rejected the plea.” App. 135. Likewise, Boyd averred that
Sciolla “told me, through my mother” of the initial plea offer.
In her introduction, Judge Sloviter criticizes the state
courts for their “assumption . . . that Boyd ‘knew about the
initial plea offer yet decided to “take his chances with the
discretion of the court.”’” Sloviter Typescript Op. at 22. The
state courts made no such assumption. Rather, Boyd’s counsel
on direct appeal, Thomas Quinn, represented to the Superior
Court that Boyd “decided to take his chances on the discretion
of the court as to sentencing.” App. 85-86. Whether one calls
this a concession, an admission, or a stipulation, it most
assuredly was not an “assumption” by the state court. The state
courts took Quinn at his word; far from being “disastrously
wrong,” they had every right to do so.
Boyd submitted affidavits from his parents to the effect41
that they would have advised him to accept the initial plea offer
had they known of the guidelines range. Without passing
judgment on whether those affidavits are credible, I note that
even if believed, the affidavits shed no light on the question
whether Boyd would have heeded his parents’ advice. See
Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998).
116
rejection. And Boyd’s parents’ affidavits are only relevant as40
to what they would have said or done; they are irrelevant as to
Boyd’s intentions or actions. Additionally, these affidavits41
reasonably could have been rejected for the same reason Boyd’s

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117
affidavit was incredible; i.e., despite their claims as to what they
would have told Boyd had they known of the guidelines, they,
like their son, apparently made no objection on or off the record
at the change of plea hearing. Accordingly, Boyd has not shown
that the PCRA court’s conclusion that he was not prejudiced by
Sciolla’s conduct was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent and
we should defer to the state court’s factfinding in this regard.
See 28 U.S.C. §§ 2254(d) & (e)(1); see also Weeks v. Snyder,
219 F.3d 245, 259 (3d Cir. 2000).
I appreciate the fact that to the extent Sciolla believed he
could persuade the court to impose a more lenient sentence than
the 4-8 year term the Commonwealth initially offered, hindsight
shows that he was seriously mistaken. But Boyd has not
adduced clear and convincing evidence to rebut the state courts’
implicit finding that there was no reasonable probability that,
but for Sciolla’s rejection of the initial plea offer, Boyd would
have taken it. All of the objective evidence before the state
courts suggests that Boyd took his counsel’s advice to try to
persuade the court to be more forgiving than the Commonwealth
was inclined to be in its initial plea offer.
Accordingly, the state courts’ conclusion that Boyd was
not prejudiced by Sciolla’s rejection of the initial plea offer was
neither “contrary to” nor an “unreasonable application of”
Supreme Court precedent, nor based on an unreasonable
determination of the facts in light of the evidence before them.
See 28 U.S.C. § 2254(d). Accordingly, the District Court erred
in granting the writ “[w]ithout deciding whether [ ] counsel
acted reasonably.” United States v. Cross, 308 F.3d 308, 311
(3d Cir. 2002).

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118
VI.
For the foregoing reasons, I cannot support a remand in
this case. Because Boyd is not entitled to an evidentiary hearing
to further develop the factual record, all that is left is for this
Court to apply AEDPA’s deferential legal standard to the
established factual record, a task that is well within our purview.
Whether we determine that Boyd’s admittedly valid guilty plea
forecloses his request for habeas relief under Tollett and Mabry,
or whether we assess the merits of Boyd’s Strickland claim
under AEDPA’s deferential standard, Boyd is not entitled to
relief. Accordingly, I respectfully dissent from the decision to
remand the case.

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