NOT PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

F O R THE THIRD CIRCUIT

NO. 04-2211

KEVIN POWELL,

A p p e lla n t

v. R O B E R T W. MEYERS; THE DISTRICT

A T T O R N E Y OF THE COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

On Appeal From the United States

District Court

F o r the Eastern District of Pennsylvania

(D.C. Civil Action No. 03-cv-03667)

D is tric t Judge: Hon. John P. Fullam

Submitted Pursuant to Third Circuit LAR 34.1(a)

J a n u a ry 17, 2007

B E F O R E : McKEE, AMBRO and STAPLETON,

C irc u it Judges

(O p in io n Filed January 24, 2007)

OPINION OF THE COURT STAPLETON, Circuit Judge: A p p ellan t Kevin Powell sought a writ of habeas corpus in the District Court a ss e rtin g that his nolo contendere plea in state court was induced by inaccurate statements o f the law and that he received ineffective assistance of counsel during the plea hearing.

The District Court declined to grant habeas relief, and this timely appeal followed. We w ill affirm.

W e have grave doubts about whether Powell's wrongful inducement challenge to h is plea was fairly presented to the state courts as a federal constitutional claim. It was u n d e rs ta n d a b ly not regarded as such by those courts.1 Both claims arise out of the same e v e n t, however, and our resolution of the ineffective assistance of counsel claim resolves th e "induced plea" claim as well. Under those circumstances, we will exercise our p re ro g a tiv e to resolve both claims on their merits. 23U.S.C. § 2254(b)(2); Bronshtein v. H o r n , 404 F.3d 700, 725 & 728 (3d Cir. 2005).

A t the outset of the plea hearing, defense counsel stated in open court that Powell's s e n te n c e would not run concurrently with any back-time sentences imposed by the State P a ro le Board for parole violations, which is an entirely accurate statement of P e n n sylv a n ia law. Although the trial court responded that "I will make it concurrent to e v e ryth in g , and then they [i.e., the State Parole Board] will make a [determination] w h e th e r it's concurrent to any back time," App. at 108, defense counsel thereafter made it c lea r to Powell on the record that he should "not expect" his sentence to run concurrent to a n y back-time sentences imposed by the State Parole Board. Id. While the comments of th e trial court (including several other remarks during the course of the plea colloquy), as q u a lif ie d by defense counsel's admonition to Powell, may have given Powell the m is im p re ss io n that there was at least a chance that the State Parole Board would impose a c o n c u rre n t back-time sentence, that misimpression would not provide a basis for habeas re lie f under the circumstances of this case.

I. Ineffective Assistance of Counsel T h e two-part test enunciated in Strickland v. Washington, 446 U.S. 668 (1984), a p p lie s to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. L o c k h a r t, 474 U.S. 52, 58 (1985). Thus, Powell is required to show that his attorney's c o n d u c t fell below an objective standard of reasonable competence under prevailing n o rm s, and that there is a reasonable probability that, but for the error, the outcome of his c a se would have been different. As explained in Hill, "in order to satisfy the `prejudice' re q u ire m e n t, the defendant must show that there is a reasonable probability that, but for c o u n se l's errors, he would not have pleaded guilty and would have insisted on going to tria l." Hill, 474 U.S. at 59.

A. Performance T h e re is no doubt that plea counsel's first statement to the trial court ("if he should b e serving back time now, or later he gets back time, that [the instant sentence is] not c o n c u rre n t to back time") was an entirely accurate statement of the applicable law. After th e court responded that it would make Powell's sentence "concurrent to everything and then they will make a [determination] whether it's concurrent to any back time," however, p le a counsel slightly retreated from her initial position by stating that "so if it works out in his favor that's great, but he is being told now not to expect that." App. at 108. While P o w e ll contends that plea counsel's response revealed that she was "unaware" of the g o v e rn in g law, we disagree. Reading plea counsel's two statements together, it is clear th a t she did not believe, based on her actual knowledge of the law, that the State Parole B o a rd would impose a concurrent back-time sentence, but simply saw no reason to c o m p le te ly foreclose that possibility, however remote she believed it was, by insisting th a t the trial court make Powell's sentence consecutive to any back-time sentences. The p rob lem here arose not from counsel's ignorance of the law, but rather from the court's m is im p re ss io n regarding it. Given the delicate situation with which counsel was c o n f ro n ted , we believe she handled the situation reasonably well. After accurately a d v isin g the court regarding the applicable law, she did not challenge the court when it s u g g e ste d the possibility of concurrent sentences. Far from positively assuring or g u a ra n te e in g this result, however, plea counsel affirmatively stated that it was her belief (a n d , indeed, part of the "offer . . . that [Powell] would be accepting," App. at 108) that su c h sentences would not be concurrent and further admonished Powell not to expect a c o n tra ry determination by the State Parole Board. We agree with the PCRA Court and the D is tric t Court that Powell has not rebutted the strong presumption that counsel's conduct fa lls within the wide range of reasonable professional assistance under Strickland.

B . Prejudice A lth o u g h the state courts disposed of Powell's ineffectiveness claim on p e rf o rm a n c e grounds, we conclude that it falls short of satisfying Strickland's second e le m e n t as well. "A defendant alleging ineffective assistance of counsel in the guilty plea c o n te x t must make more than a bare allegation that but for counsel's error he would have p le a d ed not guilty and gone to trial." Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1 9 9 5 ).

Powell does not even assert in his brief on this appeal that he would have insisted o n going to trial had he known that it was legally impossible for his back-time sentence to b e served concurrently with his instant sentence. Rather, he states only that "counsel's d e f ic ie n t performance prejudiced [him] . . . [because he] was sentenced to an additional p e rio d of incarceration that he thought he had the opportunity to avoid." Appellant Br. at 2 1 . This is not surprising. Overwhelming evidence of Powell's guilt was proffered at th e plea hearing, see App. at 113. See United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1 9 8 9 ) (finding no prejudice under Strickland where "the record . . . is replete with e v id e n c e of petitioner's guilt"). Moreover, Powell knew that the charges to which he p le a d ed nolo contendere could result in a very substantial penalty; the record shows that P o w e ll was advised of, and understood, the maximum sentences for robbery and his other o f f e n s e s. See App. at 109-10. Given his knowledge (1) that his plea would expose him to such serious punishment, (2) that trial did not offer a realistic way out, and (3) that the c h a n ce of concurrent sentences was not to be expected, it would be highly unlikely that e lim in a tio n of the possibility of such sentences would play a determinative role in P o w e ll' s plea decision.

There is also no suggestion in the record that Powell's nolo contendere plea was in a n y way conditioned on the remote possibility that his back-time sentence would run c o n c u rre n tly with his instant sentence. Instead, it shows that Powell's only hesitation in e n te rin g his plea related to the payment of restitution and court costs. See App. at 114 ([ D E F E N S E COUNSEL]: "My client is saying that . . . the condition of his plea is that he g e t in writing today a form now in which . . . you will indicate that . . . the court costs and a n y restitution which you would impose would not be payable until he is released from c u s to d y. Is that what you were asking me? [DEFENDANT]: Yes. [THE COURT]: Okay.

That will be done. We will get a short certificate which states that."); see Hill, 474 U.S. a t 59 (rejecting prejudice argument where petitioner "alleged no special circumstances th a t might support the conclusion that he placed particular emphasis on his parole e lig ib ility in deciding whether or not to plead guilty"); Parry, 64 F.3d at 118 (finding no p re ju d ic e where, among other things, "[t]he record [did] not substantiate that Parry was re lu c ta n t to plead guilty . . . ."). Under these circumstances, there is no absolutely no re a so n to believe that, but for the alleged errors by his plea counsel, Powell would have p lea d e d not guilty and insisted on going to trial.

II. Induced Plea A n y misimpression about there being some possibility of concurrent sentences c a n n o t be said to have "induced" Powell's plea unless there was a causal connection b e tw e e n the plea and that possibility ­ i.e., unless knowledge of the absence of such a p o s s ib ility would have resulted in his going to trial. See Clemmons v. United States, 721 F .2 d 235, 238 (8th Cir. 1983) (although the court mistakenly advised petitioner that it had th e power to impose concurrent sentences, his involuntary plea claim failed because the m is ta k e n advice was not "a substantial motivating factor as far as Clemmons was c o n c ern e d " ). As we have explained, Powell entered his plea knowing that his sentence w o u ld very likely run consecutively to any back-time sentences, and he does not claim b e f o re us that he would have acted differently had he known that possibility was none x is te n t rather than remote.

III. Conclusion T h e judgment of the District Court will be affirmed.

1 The Pennsylvania Superior Court rejected the "induced plea" claim on the ground that P o w e ll had failed to "make an assertion of his innocence," as required by 42 Pa. Con. S tat. Ann. § 9543(a)(2)(iii).