Khamal Fooks v. Superintendent, Smithfield Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2097
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KHAMAL FOOKS,
Appellant
v.
SUPERINTENDENT, SMITHFIELD SCI;
ATTORNEY GENERAL OF PENNSYLVANIA;
DISTRICT ATTORNEY OF ALLEGHENY COUNTY
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-19-cv-01105)
Magistrate Judge: Honorable Lisa P. Lenihan
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Argued: December 6, 2023
Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges
(Filed: March 26, 2024)

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Diana Stavroulakis [ARGUED]
T HE LAW O FFICES OF D IANA STAVROULAKIS
262 Elm Court
Pittsburgh, PA 15237
Counsel for Appellant
Alicia Hronek
B EAVER COUNTY D ISTRICT ATTORNEY ’S O FFICE
810 Third Street
Beaver, PA 15009
Ronald M. Wabby, Jr. [ARGUED]
A LLEGHENY COUNTY D ISTRICT A TTORNEY ’ S O FFICE
436 Grant Street
Pittsburgh, PA 15219
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Though habeas relief is hard to get, courts must give peti-
tioners a fair shot. Khamal Fooks never got that. In his habeas
petition, he alleges that his lawyer had assured him that he
would be eligible for parole. But that assurance was false. His
allegations, if true, would show that his lawyer’s advice was
ineffective. Yet neither the state nor the federal district court
gave him a chance to prove those allegations. So we will remand
for an evidentiary hearing to give him that chance.

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I. FOOKS C LAIMS HIS LAWYER
M ISADVISED HIM ABOUT PAROLE
Fooks and his friend went to a crack house to do a drug
deal. While there, they shot and killed a man. Fooks pleaded
guilty in Pennsylvania state court to third-degree murder, con-
spiracy, and carrying an unlicensed gun. As part of the plea
deal, prosecutors dropped another charge and stipulated to a
sentence of twenty to forty years in prison. After a plea hearing,
the trial court accepted his guilty plea and plea agreement and
imposed the agreed-upon sentence. The state appellate court
affirmed.
Fooks then filed for state collateral relief, claiming ineffec-
tive assistance. He alleged that his lawyer had misadvised him
that he would be eligible for parole after ten years. In fact, he
had to serve at least twenty. He also said his lawyer should
have moved to withdraw his guilty plea. And if he had known
the truth, he claimed, he would not have pleaded guilty.
The trial court denied his petition on the merits without an
evidentiary hearing. And the Pennsylvania Superior Court
affirmed on the merits, explaining that “nothing in the record
supports Fooks’ claim that plea counsel represented to him
[that] he would be eligible for parole after serving half of his
minimum sentence.” App. 116. Fooks had said he knew that
he would get a sentence of twenty to forty years. Because
“Fooks is bound by the[se] statements,” the court concluded, his
ineffective-assistance claim was meritless. Id. The Pennsylva-
nia Supreme Court denied review.
Next, Fooks filed this federal habeas petition. The District
Court denied it, holding that the Superior Court’s decision was

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not contrary to clearly established federal law and had not applied
it unreasonably. The District Court also declined to hold an
evidentiary hearing. Fooks now appeals.
Because it denied habeas relief without holding an eviden-
tiary hearing, we review its denial de novo. Branch v. Sweeney,
758 F.3d 226, 232 (3d Cir. 2014). And we review its failure to
hold that hearing for abuse of discretion. Id. at 241.
II. O N THE EXISTING RECORD , F OOKS
IS N OT ENTITLED TO R ELIEF
The state court denied Fooks’s petition on the merits. So we
can grant him federal habeas relief only if the state court’s
decision was contrary to clearly established federal law or
unreasonably applied that law. 28 U.S.C. § 2254(d)(1). Neither
is true here. The Superior Court used the governing Strickland
standard to hold that counsel had not performed deficiently.
App. 102–03. It thus applied the right legal rule.
Nor can Fooks show that, in declining to grant habeas, the
Superior Court applied Strickland unreasonably. True, defense
counsel performs deficiently if he misadvises his client about
parole eligibility. Meyers v. Gillis, 142 F.3d 664, 667 (3d Cir.
1998). And Fooks alleges that “but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). But all Fooks
has are his own bare allegations. He never testified in state
court. Plus, though his mother and brother later swore that his
lawyer had misled him about parole, they made those state-
ments almost a year after the Superior Court rejected his claim.
So it rightly ruled that, at that time, “nothing in the record sup-
port[ed] Fooks’ claim.” App. 116.

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III. THE D ISTRICT C OURT SHOULD HAVE
HELD AN EVIDENTIARY HEARING
But Fooks never got to fully develop that record. Although
he repeatedly asked for an evidentiary hearing, neither the state
nor the federal court gave him one. Yet he alleges facts that, if
proven, would entitle him to federal habeas relief. So the Dis-
trict Court should have given him a hearing.
A. Nothing bars the district court from holding a hearing
Both statute and precedent limit a habeas petitioner’s abil-
ity to get an evidentiary hearing. Neither limit applies here.
Under the habeas statute, a federal district court may not hold
an evidentiary hearing if a petitioner “has failed to develop the
factual basis of a claim in State court proceedings.” 28 U.S.C.
§ 2254(e)(2). But Fooks never “failed to develop the factual
basis of [his] claim.” Id. (emphasis added). He promptly sought
“an evidentiary hearing in the manner required by state law.”
Morris v. Beard, 633 F.3d 185, 195 (3d Cir. 2011). The state
court just refused. So he is asking for his first bite at the apple,
not a second. Thus, the statute’s bar does not apply.
The Supreme Court has further limited access to federal
evidentiary hearings. In Cullen v. Pinholster, it held that “review
under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” 563 U.S.
170, 181 (2011). So, our Court reasoned, “district courts cannot
conduct evidentiary hearings to supplement the existing state
court record under 28 U.S.C. § 2254(d).” Brown v. Wenerowicz,
663 F.3d 619, 629 (3d Cir. 2011). But there is an exception
when the state court has denied the petitioner a hearing because
it thought that he would lose even if his allegations were

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presumed true. In that case, Pinholster’s bar does not apply if
that ruling was unreasonable as a matter of clear federal law.
See Jordan v. Hepp, 831 F.3d 837, 849–50 (7th Cir. 2016) (dis-
tinguishing Pinholster on similar grounds).
Fooks meets this exception. The Superior Court denied his
petition for a hearing because it found that even if his allega-
tions were true, they would not merit relief. But, as explained
below, he “has alleged facts that would make [his lawyer’s]
conduct objectively unreasonable under Strickland and the
state’s contrary ruling unreasonable under section 2254(d)(1).”
Jordan, 831 F.3d at 849–50. Pinholster thus does not prevent
Fooks from getting an evidentiary hearing.
B. Fooks’s allegations are enough to warrant a hearing
Though nothing keeps Fooks from getting a federal eviden-
tiary hearing, he has no automatic right to one. Fooks must
make “a prima facie showing that would enable him to prevail
on the merits of [his] claim.” Morris, 633 F.3d at 196 (cleaned
up). So we ask whether his factual allegations, “if true, would
entitle [him] to federal habeas relief.” Schriro v. Landrigan,
550 U.S. 465, 474 (2007). But if “the record refutes [his] fac-
tual allegations or otherwise precludes habeas relief,” no hear-
ing is needed. Id. And we review the state court’s decision on
the merits deferentially, granting relief only if it was unreason-
able. Id.
Fooks has made this showing. Strickland forbids giving a
defendant incorrect or misleading advice that influences his
decision to plead guilty. When Fooks pleaded guilty in 2015,
that law was clearly established. And by holding to the con-
trary, the state court unreasonably applied clearly established

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federal law. So “the district court must conduct a hearing under
section 2254(e) to determine if these facts are true.” Jordan,
831 F.3d at 849–50.
For four decades, the Supreme Court has recognized that a
lawyer can violate Strickland by “fail[ing] to advise the defend-
ant” properly or misadvising him and thus causing him to plead
guilty. Hill v. Lockhart, 474 U.S. 52, 56–60 (1985) (involving
misadvice about parole eligibility). Strickland equally guards
against letting a defendant decide to turn down a plea deal based
on a lawyer’s incorrect advice. See Lafler v. Cooper, 566 U.S.
156, 163–64, 174 (2012). Either way, “incompetent advice dis-
torts the defendant’s decisionmaking process” and makes it
“hard to say that the plea was entered with the advice of con-
stitutionally competent counsel.” Padilla v. Kentucky, 559 U.S.
356, 385 (2010) (Alito, J., concurring in the judgment); accord
id. at 371, 373 (majority opinion) (same, relying on Strickland
and Hill).
The Supreme Court has clearly established that a lawyer’s
incorrect advice can violate Strickland when it affects “the out-
come of the plea process.” Hill, 474 U.S. at 59. A quarter-
century ago, we applied this clear command to a case like this
one. In that case, a defense lawyer had repeatedly misadvised
the defendant that the plea deal would leave him eligible for
parole. Meyers, 142 F.3d at 667. We held that misadvice was
deficient performance that prejudiced the defendant under
Strickland because there was a reasonable chance that he
would have gone to trial otherwise. Id. at 667–70.
So too here. As in Meyers, Fooks’s lawyer allegedly gave
him bad advice about his parole eligibility. And no one cleared

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up his misunderstanding. Also as in Meyers, the lawyer’s bad
advice is allegedly why Fooks took the plea deal. That would
show prejudice, satisfying Strickland. True, Meyers had far
more record evidence to support his claims. But because Fooks
had no chance to make a record, we must take his allegations
as true.
Even so, the Superior Court and District Court rejected his
claim as meritless based on two things that he said at his plea
hearing. Yet neither contradicts his claim. First, Fooks agreed
that no one had made him any promises beyond those in the
plea agreement. And his lawyer certified in writing that he had
made no promises outside the record. But he claims not that his
lawyer promised him parole, only that his lawyer said he would
be eligible for it. That was not a promise, but bad advice.
Second, Fooks said he understood that his sentence would
be twenty to forty years. But he said nothing about parole eli-
gibility, and no one warned him about it. He may have thought
that parole could still reduce his time in prison, letting him
serve the rest of the twenty years on parole. Nothing in the rec-
ord contradicts that allegation.
Yet the Superior Court overread his statements as enough
to foreclose habeas relief. Although Fooks cannot show that
the Superior Court applied Strickland unreasonably to the non-
existent factual record, he has shown that it unreasonably held
his allegations meritless under Strickland even if they were
true. So it should have held a hearing. Because Fooks never got
the state evidentiary hearing that he sought, he should have
gotten a federal one. The District Court erred by not giving it
to him.

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* * * * *
Fooks says his lawyer misadvised him about parole, caus-
ing him to take a plea deal. If he is right, he has a claim for
ineffective assistance of counsel. Yet neither the state nor the
federal court gave him a chance to prove his claim. So we will
remand for the court to hold an evidentiary hearing and give
him that chance.

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