Baker v. Barbo

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

5-13-1999

Baker v. Barbo

Precedential or Non-Precedential:

Docket 97-5687

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Filed May 13, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5687

JAMES BAKER,

Appellant

v.

JAMES F. BARBO;

ATTORNEY GENERAL OF

THE STATE OF NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 96-01745)

District Judge: Honorable Joseph A. Greenaway, Jr.

Argued March 23, 1999

BEFORE: GREENBERG and ROTH, Circuit Judges,

and POLLAK,* District Judge

(Filed: May 13, 1999)

Theodore Sliwinski (argued)

45 River Road

East Brunswick, NJ 08816

Attorney for Appellant

_________________________________________________________________

*Honorable Louis H. Pollak, United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

Thomas V. Manahan

Prosecutor of Union County

Steven J. Kaflowitz (argued)

Assistant Prosecutor

Office of Prosecutor of Union County

Union County Administration

Building

Elizabeth, NJ 07207

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

On this appeal we review the district court's order

denying James Baker's petition for a writ of habeas corpus

filed under 28 U.S.C. S 2254. Baker, who has been

incarcerated since February 12, 1987, contends that he

received ineffective assistance of counsel in violation of his

rights under the Sixth Amendment and that his

resentencing to a greatly enhanced sentence following his

unsuccessful appeal of his convictions violated his right to

due process under the Fourteenth Amendment. We have

jurisdiction under 28 U.S.C. S 1291, and will affirm the

denial of the writ for the reasons which follow.

II. BACKGROUND

On March 19, 1987, a New Jersey grand jury indicted

Baker together with co-defendant Stephen L. Garry for two

sets of crimes committed on the evening of January 7,

1987, in Elizabeth, New Jersey: the robbery and attempted

abduction of Elizabeth Soto and the abduction, kidnaping,

and aggravated sexual assault of M.B., a 15-year old girl.

Together, these incidents constituted second degree robbery

in violation of N.J. Stat. Ann. S 2C:15-1 (West 1995);

attempted kidnaping in violation of N.J. Stat. Ann.S 2C:5-1

(West 1995) and N.J. Stat. Ann. S 2C:13-1b (West 1995);

2

criminal restraint in violation of N.J. Stat. Ann.S 2C:13-2

(West 1995); first degree kidnaping in violation of N.J. Stat.

Ann. S 2C:13-1b; and aggravated sexual assault in violation

of N.J. Stat. Ann. S 2C:14-2a (West Supp. 1998).

Baker and Garry committed the first crime at

approximately 8:00 p.m. on January 7, 1987. At that time

Baker, who was driving a stolen car, and Garry, his

passenger, pulled up alongside Soto, who was leaving a

store. Garry jumped out and chased Soto. A struggle then

ensued after Soto unsuccessfully tried to run away. Garry

dragged Soto into the middle of the road toward the car.

She told Garry to take her purse, but he said, "no, we want

you." Soto then began to hit and kick Garry and called for

help, and, after a ten-minute struggle during which Garry

took Soto's purse, Garry jumped back into the car, and he

and Baker drove off. A witness saw the struggle and the

police were called. They arrived minutes later and began a

search for the car.

Meanwhile, about a mile away, Garry and Baker pulled

up along side 15-year-old M.B. sometime after 8:30 p.m. as

she was walking home from a friend's house. One of the

two men pulled M.B. into the backseat of the car and over

the next two hours Garry raped her twice and Baker forced

her to perform fellatio on him and attempted to rape her.

They then released her onto the street, and she made her

way home. Her mother took her to a police station and then

to a hospital. Subsequently, the police arrested both men

and the grand jury indicted them for the offenses we have

described.

The heart of this appeal lies in the fact that at the time

of Baker's offenses, indictment, trial, and sentencing a new

law was in effect which required a mandatory minimum

term of incarceration of 25 years in this case. Under N.J.

Stat. Ann. S 2C:13-1c (West 1995) the sentencing range for

first degree kidnaping until one month before Baker's

offenses had been 15 to 30 years without any requirement

for a mandatory period of parole ineligibility. 1979 N.J.

Laws c. 178, S 23. However, on December 8, 1986, the

Legislature amended this section by enacting 1986 N.J.

Laws c. 172, S 2, to provide that a person found guilty of

kidnaping a victim under 16 years of age against whom a

3

sexual assault under N.J. Stat. Ann. S 2C:14-2 or N.J. Stat.

Ann. S 2C:14-3a is committed, shall be sentenced to a term

of between 25 years and life imprisonment with 25 years of

parole ineligibility. N.J. Stat. Ann. S 2C:13-1c(2)(a) (West

1995). Inasmuch as M.B. was under 16 and Baker and

Garry sexually assaulted her during the kidnaping, the law

required their sentencing upon conviction to an

imprisonment term of at least 25 years without parole.

Nevertheless, the prosecution, unaware of the

amendment to N.J. Stat. Ann. S 2C:13-1c, offered Garry a

plea bargain under which he would receive an aggregate

custodial sentence of no more than 30 years with 15 years

of parole ineligibility, conditioned upon Garry pleading

guilty and "testifying truthfully" against Baker. Garry

accepted this offer and thus pleaded guilty. The trial court,

also unaware of the amendment, sentenced Garry to an

aggregate custodial term of 30 years with 15 years of parole

ineligibility.

The State offered Baker the same plea bargain: a

maximum term of 30 years with 15 years of parole

ineligibility. Baker declined this offer, however, and chose

to go to trial because his attorney advised him that he had

nothing to gain from accepting the plea: if he went to trial

the maximum sentence he faced was 30 years with 15

years of parole ineligibility -- the very same "deal" the State

was offering. Baker's attorney, like the court and the

prosecutor, was, of course, unaware of the change in the

law.

After a two-day trial, a jury on September 10, 1987,

found Baker guilty of robbery, attempted kidnaping,

kidnaping and aggravated sexual assault. The court

dismissed the charge of criminal restraint. On December 4,

1987, the court, unaware of the change in the law,

sentenced Baker to concurrent nine-year terms of

imprisonment with three-year terms of parole ineligibility

for robbery and attempted kidnaping and a consecutive 18-

year term of imprisonment with an eight-year term of parole

ineligibility for kidnaping. The court merged Baker's

conviction for aggravated sexual assault into his conviction

for kidnaping. Thus, the court sentenced Baker to an

aggregate custodial term of 27 years with 11 years of parole

4

ineligibility. Accordingly, both Baker and Garry received

illegal sentences.

Baker filed an untimely notice of appeal from his

conviction on July 18, 1988, but the Appellate Division of

the New Jersey Superior Court, entered an order on

February 22, 1989, authorizing the appeal to befiled nunc

pro tunc. Baker asserted various trial errors on appeal, but

when he filed the appeal he still was unaware of the

sentencing amendment on the kidnaping charge. However,

on August 21, 1989, the State filed a motion for leave to file

a cross-appeal nunc pro tunc, contending that Baker's

sentence for kidnaping was illegal because of the change in

law prior to the commission of the offenses.1 The Appellate

Division granted that motion on September 12, 1989. Then,

in an unpublished per curiam opinion filed on January 2,

1990, the Appellate Division affirmed Baker's convictions

and, inasmuch as it agreed with the State that Baker was

subject to the 25-year parole disqualifier, it remanded the

case to the trial court for reconsideration of the sentence.

State v. Baker, No. A-5384-87T4 (N.J. Super. Ct. App. Div.

Jan. 2, 1990).

Baker moved in the Appellate Division for reconsideration

of the order remanding the case for reconsideration of his

sentence, but the court denied his motion on February 27,

1990, stating that the trial court could address the issues

he raised in the motion when it reconsidered Baker's

sentence. The New Jersey Supreme Court denied Baker's

petition for certification on June 13, 1990. State v. Baker,

584 A.2d 246 (N.J. 1990).

Baker then filed a petition for post-conviction relief in the

_________________________________________________________________

1. The State has not attempted to have the state court correct Garry's

sentence because, as it explained at argument before us, if the court

increased Garry's sentence, he would be entitled to have his guilty plea

vacated and to go to trial. Thus, Garry's position differed from that of

Baker who did go to trial. See State v. Baker, 636 A.2d 553, 565 (N.J.

Super. Ct. App. Div. 1994). The State was not willing to run the risk of

another trial because by the time it discovered the error considerable

time had elapsed from the time of the offenses. Moreover, it did not wish

to require the victims to face the trauma of a second trial. Garry, of

course, has not challenged his illegal sentence.

5

trial court on March 27, 1991, alleging that he had been

denied effective assistance of counsel and that he had been

denied due process and equal protection of the law because

the State had entered into a plea bargain with Garry under

which Garry testified against Baker in exchange for an

illegally short sentence. After an evidentiary hearing, the

trial court denied his petition on October 7, 1991.

On February 19, 1992, the trial court resentenced Baker

to a 25-year term of imprisonment without eligibility for

parole for kidnaping and concurrent nine-year terms of

imprisonment with three-year periods of parole ineligibility

for robbery and attempted kidnaping. The court merged

Baker's conviction for aggravated sexual assault into his

conviction for kidnaping. Thus, the court resentenced

Baker to an aggregate custodial term of 25 years without

eligibility for parole, more than doubling the period of

parole ineligibility it had imposed in the original sentence.

Baker filed separate notices of appeal from the denial of

his petition for post-conviction relief and from the judgment

entered on his resentencing. The Appellate Division

consolidated these appeals on December 30, 1992, and

affirmed Baker's convictions on January 21, 1994, over a

dissent. State v. Baker, 636 A.2d 553 (N.J. Super. Ct. App.

Div. 1994). On further appeal, the Supreme Court of New

Jersey, on October 27, 1994, affirmed the decision of the

Appellate Division with one justice dissenting. State v.

Baker, 648 A.2d 1127 (N.J. 1994).

Baker filed a petition for a writ of habeas corpus on April

23, 1996, pursuant to 28 U.S.C. S 2254 in the district court

but the court denied the petition in an order entered

September 24, 1997. Baker then appealed.2 As the district

court relied entirely on the state court record and did not

hold an evidentiary hearing, we exercise plenary review of

_________________________________________________________________

2. We note that the appellees did not argue in the district court that any

of Baker's claims were not exhausted in the state courts and the district

court rejected them on the merits. We are satisfied from our examination

that Baker's claims have been exhausted. Inasmuch as Baker filed his

petition before the enactment of the Antiterrorism and Effective Death

Penalty Act, the provisions of that statute are not applicable here. See

United States v. Skandier, 125 F.3d 178, 182 (3d Cir. 1997).

6

the habeas proceeding. 28 U.S.C. S 2254; see, e.g.,

Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.

1991).

III. DISCUSSION

A. Denial of Effective Assistance of Counsel

Baker argues that he was denied effective assistance of

counsel in violation of the Sixth Amendment because of his

attorney's ignorance of the statutory sentencing

amendment during the plea negotiations and because his

attorney made various errors during the trial. Baker

contends that his attorney's ignorance of the sentencing

law caused him to pass up the opportunity to plead guilty

and to be sentenced to a 30-year term with a 15-year limit

of parole ineligibility.3 Inasmuch as we find that his

contentions with respect to his representation at trial are

clearly without merit, we confine our discussion to the

significance of his attorney's ignorance of the sentencing

law.

We start our discussion of the Sixth Amendment issues

by pointing out that a defendant's right to effective counsel

includes the period of his representation during a plea

process as well as during a trial. Hill v. Lockhart, 474 U.S.

52, 58, 106 S.Ct. 366, 370 (1985). Accordingly, we judge

this unusual case by applying the ordinary standards for

granting relief when a defendant claims that he received

ineffective assistance of counsel. Thus, to prevail on his

claim Baker must satisfy a two-prong test. First, he must

show that his attorney's performance was "deficient," that

is, "that counsel made errors so serious that counsel was

not functioning as the `counsel' guaranteed the defendant

by the Sixth Amendment . . . ." Strickland v. Washington,

_________________________________________________________________

3. In his brief, Baker contended that he is entitled to be sentenced to a

27-year term with an 11-year period of parole ineligibility. This request

for relief obviously is dependent upon the reimposition of the sentence

the trial court imposed following his conviction at trial and thus is not

consistent with his theory that he never should have stood trial. At oral

argument, his attorney conceded that his claim should be for the

imposition of a 30-year sentence with a 15-year period of parole

ineligibility.

7

466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Next, he

must show "that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694, 104 S.Ct.

at 2068. Of course, inasmuch as Baker's contentions

regarding trial error are meritless, a different result can

mean only that in the absence of his attorney's ignorance of

the amendment of the sentencing law, Baker would have

pleaded guilty and the court would have sentenced him to

a shorter sentence than that it ultimately imposed.

We agree with Baker that his trial attorney's error with

respect to his ignorance of the sentencing law has satisfied

the first prong of the Strickland test. Strickland, 466 U.S. at

688, 690, 104 S.Ct. at 2064-65. While we realize that this

case is extraordinary in that the state trial judge 4 and the

prosecutor also did not know of the change in the law even

at the time of Baker's sentencing almost one year after the

enactment of the amendment, still we must hold that an

attorney who does not know the basic sentence for an

offense at the time that his client is contemplating entering

a plea is ineffective.5

Baker, however, has not met the second Strickland prong

-- a showing that there is a "reasonable probability that,

but for" the error there might have been a different result.

The "reasonable probability" test is not a stringent one. See

Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998

(1986) (reasonable probability standard less demanding

than preponderance standard). We have recognized that "[a]

reasonable probability is a probability sufficient to

undermine confidence in the outcome." United States v.

Day, 969 F.2d 39, 42 (3d Cir. 1992) (quoting Strickland,

_________________________________________________________________

4. In fact three different Superior Court judges were unaware of the

change in the law, the judge who accepted Garry's plea of guilty, the

judge who sentenced Garry, and the judge who sentenced Baker.

5. Our opinion must not be overread. We recognize that the ascertaining

of a sentence for an offense can be a difficult matter, particularly in

the

federal courts where sentence calculations can be quite complex and can

depend on facts not ascertained when the defendant pleads to the

offense. Here, however, the sentence required for the offense was

straightforward as counsel had only to examine the latest statutory

amendments to determine it.

8

466 U.S. at 694, 104 S.Ct. at 2068). But Baker's arguments

as to prejudice are totally speculative and do not meet that

standard.

We have held that an attorney can be ineffective by giving

a defendant false information about sentencing, thereby

inducing the defendant to plead guilty instead of going to

trial. See Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998). In

Meyers we found that a defense attorney was mistaken in

informing his client that he would be eligible for parole in

a case where the offense to which the defendant pled guilty

carried a mandatory life sentence. We reasoned that there

was prejudice because there was evidence that, but for the

attorney's advice, the defendant would not have pled guilty,

and might have been convicted of a lesser offense. Id. at

664. Similarly, there can be no doubt that an attorney can

be ineffective in giving his client advice which leads him to

turn down a favorable plea agreement if the attorney is not

aware of the applicable basic sentencing law. Here,

however, Baker has not shown that if his attorney had been

aware of the sentencing law he might have obtained a

sentence of 30 years with a 15-year term of parole

ineligibility by pleading guilty or, indeed, obtained a

sentence for any period less than that the court ultimately

imposed.

If Baker's attorney had known of the sentencing

amendment he would have had the professional duty to

alert the State and the court of the amendment because a

defendant cannot bargain for an illegal sentence. See, e.g.,

In re Norton, 608 A.2d 328, 338 (N.J. 1992); State v.

Nemeth, 519 A.2d 367, 368 (N.J. Super. Ct. App. Div. 1986)

("[T]here can be no plea bargain to an illegal sentence.");

see also N.J. Rule of Professional Conduct 3.3(a)(3) ("A

lawyer shall not knowingly fail to disclose to the tribunal

legal authority in the controlling jurisdiction known to the

lawyer to be directly adverse to the position of the client

and not disclosed by opposing counsel."); 3.3(a)(5) ("A

lawyer shall not knowingly fail to disclose to the tribunal a

material fact with the knowledge that the tribunal may tend

to be misled by such failure."). Therefore, if Baker's

attorney had known of the correct sentence for the

kidnaping, and thus had been an effective counsel, Baker

9

could not have accepted the plea offer as it required him to

plead guilty to first degree kidnaping in circumstances in

which the applicable statute required a sentence with a 25-

year mandatory period of parole ineligibility.

It therefore follows that, if his attorney had not been

ineffective, Baker could have obtained a 30-year sentence

with a 15-year period of parole ineligibility only if his

attorney could have negotiated for a dismissal of the

kidnaping count. But it is mere speculation to think that he

could have done so. After all, Baker cannot demonstrate

that there was a reasonable probability that the prosecutor

would have negotiated a plea agreement that would

frustrate the Legislature's then recently adopted

requirement for a 25-year period of parole ineligibility in the

circumstances of this case. Furthermore, even if Baker

could have negotiated the agreement with the prosecutor, it

could have been implemented only with the consent of the

trial court because New Jersey state court practice permits

the trial court to reject a guilty plea even when tendered

pursuant to a plea agreement. See N.J. Ct. R. 3:9-2; 3:9-3.

While we never can know whether the trial court would

have accepted the hypothetical plea agreement, the

Appellate Division on Baker's second appeal indicated that

it was unwilling to "frustrate [the] legislative directive" for a

25-year period of parole ineligibility. Thus, for that reason,

among others, it upheld the resentencing. Baker cannot

demonstrate that there is a reasonable probability that a

trial court's attitude would have been any different. State v.

Baker, 636 A.2d at 564.

In considering whether there was a reasonable

probability that Baker would have been able to negotiate for

a dismissal of the kidnaping charge, it is important to

recognize how severe the prosecutor's bargaining position

had been. During the negotiations the parties believed that

the proposed plea agreement which included a 30-year

term with a 15-year period of parole ineligibility was the

maximum sentence for the kidnaping offense. See N.J. Stat.

Ann. S 2C:13-1c; N.J. Stat. Ann. S 2C:43-6b (West 1995).

Indeed, while it was possible that by reason of the

imposition of consecutive sentences on separate counts

that upon Baker's conviction the court could have imposed

10

a longer custodial term, see State v. Baker, 636 A.2d at

561, the proposed sentence was so long that Baker's

attorney advised him that he had nothing to lose by going

to trial.

Moreover, the court upon Baker's conviction sentenced

him to a 27-year term with an 11-year period of parole

ineligibility, in a sense vindicating Baker's attorney's

position which, in the absence of the sentencing

amendment, would have been unassailable. It is, of course,

unusual for a court to sentence a defendant upon his

conviction at trial to a shorter sentence than that offered

prior to trial6 and the court's action plainly demonstrates

that the prosecutor in his sentencing offer was not being

lenient with Baker. In view of this attitude, Baker cannot

demonstrate that if the prosecutor had known of the 25-

year mandatory period of parole ineligibility, he would have

been willing to enter into a plea agreement which included

a dismissal of the kidnaping charge. Plainly, the reasonable

inference we draw from the objective evidence is exactly to

the contrary. Thus, Baker cannot demonstrate that there is

a reasonable probability that his attorney's error had any

effect on the outcome of the case.

We recognize that the district court did not conduct an

evidentiary hearing in this case and that sometimes it is

necessary for the court to hold such a hearing to resolve

disputed questions of fact. But this case does not fall

within that category as the nature of Baker's claim is such

that his chances for relief must remain nothing more than

a possibility. Consequently, we will not remand so that the

district court can preside over a charade in which witnesses

testify about hypothetical conduct. In these circumstances,

we cannot hold that there is a reasonable probability that

but for his attorney's error, the result of this case could

have been different.7

_________________________________________________________________

6. This sentencing approach is well known to all attorneys practicing

criminal law and is nothing new. See Comment, The Influence of the

Defendant's Plea on Judicial Determination of Sentence, 66 Yale L.J. 204

(1956).

7. We note that the dissent suggests that on a remand the district court

could inquire into whether the attorney who, on Baker's behalf, filed his

11

Some context as to the trial testimony is helpful in

explaining our decision. The first victim, Soto, tentatively

identified Baker as the driver of the car which pulled up

beside her and she positively identified Baker at trial. The

second victim, M.B., testified that Baker attempted to

sexually assault her but that she bit him and that this

deterred his attack. While M.B. immediately after the crime

did not identify Baker from a photo array, she was able to

do so a few weeks later and she identified him at trial.

Garry testified for the State that he and Baker committed

both crimes, but he testified that he, not Baker, drove the

car, and that it was Baker who jumped out to grab Soto

and, later that evening, M.B.8 He also testified that both he

and Baker sexually assaulted M.B. in the car. Further,

Detective Conrad Cheatham of the Elizabeth Police

Department, who arrested Baker, testified that Baker

admitted participating in the assault upon Soto, stating

that Garry drove the car while he attacked Soto. State v.

Baker, 636 A.2d at 558. Given the strength of this evidence,

there is no reasonable probability that in order to

accommodate Baker the State would have dropped thefirst-

degree kidnaping charge if it had been aware of the 25-year

_________________________________________________________________

first appeal, was ineffective because he apparently did not advise Baker

that he faced a longer sentence by appealing. This appellate attorney,

who was an Assistant Deputy Public Defender, had not represented

Baker in the plea negotiations and at the trial. The problem with this

suggestion, quite aside from any ethical considerations that might have

compelled the attorney to share his knowledge of the sentencing error

with the state, if he had any such knowledge, is that Baker never has

raised this issue in either the state or federal courts. For example, in

this court he contends in his brief that his constitutional rights "were

violated because he received ineffective counsel during the plea

negotiations of his case," "trial counsel was ineffective because he

failed

to make sufficient efforts to research the applicable sentencing law," and

his "Sixth Amendment rights were violated because the cumulative effect

of counsel's errors denied him effective assistance of counsel." His brief

makes plain that his reference to the cumulative errors means error at

trial.

8. Of course, if the State had been aware of the mandatory sentence, it

could not have made the plea agreement it did make with Garry and

perhaps his testimony would not have been available in Baker's case.

12

mandatory imprisonment term without parole eligibility or

that the court would have approved any such action.

Of course, we cannot replay the events of the pre-trial

proceedings. Yet it is clear enough that the Strickland test

requires a showing that a defendant has been deprived of

a "just result" due to ineffective counsel. Strickland, 466

U.S. at 686, 104 S.Ct. at 2064. The State's cross-appeal to

correct the sentence provided Baker with what he would

have had if he had received effective representation during

the plea stage, the right to be sentenced legally. His

attorney's mistake in no way affected the constitutionality

of the subsequent trial. The mistake deprived Baker only of

the possibility to negotiate for the dismissal of the

kidnaping charge, but as we have indicated, he cannot

show that he was prejudiced by the loss of this speculative

opportunity. Thus, his Sixth Amendment claim must fail.

B. Fundamental Unfairness

Baker argues that his resentencing to the 25-year term of

imprisonment without eligibility for parole mandated by

N.J. Stat. Ann. S 2C:13-1c(2)(a) violated his right to due

process of law. Due process of law comprehends concepts

less rigid and more fluid than those provided in specific and

particular constitutional guarantees. To show a due process

violation, Baker must show that his resentencing was

"fundamentally unfair," Burkett v. Cunningham, 826 F.2d

1208, 1221 (3d Cir. 1987), or was "shocking to the

universal sense of justice." Kinsella v. United States ex rel.

Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304 (1960).

Baker claims that the parties' and the court's ignorance of

the sentencing amendment for kidnaping led to his serving

a portion of his sentence before any challenge was made,

and that it is unfair that he now should face a longer

sentence without parole than he had expected. Of course,

Baker's due process argument includes the odd fact that he

is claiming a right to illegal treatment.

On the fundamental fairness issue we first consider

double jeopardy principles for while they are conceptually

distinct from due process principles still to a degree they

are informative even here. In Bozza v. United States, 330

U.S. 160, 67 S.Ct. 645 (1947), the trial court inadvertently

13

failed to impose a statutorily mandated fine in sentencing

the defendant, but recalled him to impose the omitted fine.

Rejecting his contention that this resentencing constituted

a violation of the Double Jeopardy Clause, the Court stated:

This Court has rejected the `doctrine that a prisoner,

whose guilt is established, by a regular verdict, is to

escape punishment altogether, because the court

committed an error in passing the sentence.' The

Constitution does not require that sentencing should

be a game in which a wrong move by the judge means

immunity for the prisoner. In this case the court`only

set aside what it had no authority to do and

substitute[d] directions required by the law to be done

upon the conviction of the offender.' It did not twice

put petitioner in jeopardy for the same offense. The

sentence, as corrected, imposes a valid punishment for

an offense instead of an invalid punishment for that

offense.

Id. at 166-67, 67 S.Ct. at 649 (citations omitted).

Following Bozza, we have stated that a guilty prisoner

cannot "escape punishment because the court committed

an error in passing sentence." United States v. Busic, 639

F.2d 940, 946 (3d Cir. 1981) (citing Bozza, 330 U.S. at 166,

67 S.Ct. at 648). See also id. at 948 ("Nothing in the history

or policy of the [Double Jeopardy] clause suggests that its

purposes included protecting the finality of a sentence and

thereby barring resentencing to correct a sentence entered

illegally or erroneously."). This principle is true even in

cases like Baker's where the prisoner already has begun to

serve his sentence. Busic, 639 F.2d at 948 n.11.

Baker nevertheless contends that it is a violation of the

Due Process Clause to correct even an illegal sentence

when enough time has passed such that the prisoner has

some real interest in expecting a certain release date or in

fact has been released and faces reincarceration. See

Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir. 1999);

DeWitt v. Venetoulo, 6 F.3d 32 (1st Cir. 1993); Breest v.

Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). In Breest, the

court noted that the power of a sentencing court to correct

an invalid sentence "must be subject to some temporal

14

limit." Breest, 579 F.2d at 101. According to the court, "[a]s

the months and years pass," the expected release date

acquires "a real and psychologically critical importance" to

the inmate. Id. After a "substantial period of time" passes,

"it might be fundamentally unfair . . . to alter even an

illegal sentence in a way which frustrates a prisoner's

expectations [of release]." Id.

Baker's reasonable expectations could not have reached

that "temporal limit" wherever it may be. Baker's reliance

on his sentence could not have lasted even two years as he

was sentenced on December 4, 1987, and the State moved

on August 21, 1989, for leave to cross-appeal from the

sentence. Further, he could not have had a clear

"expectation of finality" when the State cross-appealed as

the direct appeal process had not been concluded by that

time. See United States v. DiFrancesco, 449 U.S. 117, 136,

101 S. Ct. 426, 437 (1980) (defendant "has no expectation

of finality in his sentence until the appeal is concluded or

the time to appeal has expired"); State v. Rodriguez, 478

A.2d 408, 412 (N.J. 1984) ("Since the underlying

substantive convictions in this case were themselves the

subject of attack on an appeal in which defendant sought

their modification, no legitimate expectation offinality could

be invested in the underlying convictions or the sentences

related to them.").

We realize that prisoners place enormous weight upon

their hopes for parole or release. But Baker has not shown

a substantial enough expectation of release to support a

finding of a violation of his due process rights. While Baker

relies heavily on DeWitt v. Venetoulo that case is

distinguishable as there, after a defendant was paroled, the

court reimposed a sentence to correct an illegal order

suspending a portion of his sentence.

It is also significant that Baker initiated the appellate

process and was seeking a new trial by appealing. Thus, as

the Appellate Division indicated on Baker's second appeal,

his "own appeal prevented his convictions and sentences

from being invested with finality." State v. Baker, 636 A.2d

at 564. Therefore, it is conceivable that if he had been

successful on appeal and then had been convicted at a new

trial, the court might have imposed a greater sentence on

15

him than that it originally imposed. Id. While it is true that

North Carolina v. Pearce, 395 U.S. 812, 89 S.Ct. 2072

(1969), places some limitations on the enhancement of a

sentence after a retrial, the case is not an absolute bar to

such an enhancement. Thus, by appealing, Baker gambled

that he would lose the advantage of the 27-year sentence

with an 11-year period of parole ineligibility. He lost his

gamble, though not in a way he could have anticipated

when he appealed.

We ultimately are persuaded by the State's argument

that it is proper that Baker serve at least the minimum

sentence the Legislature intended for the crimes he

committed. One month before Baker kidnaped and sexually

assaulted the minor girl, the Legislature directed that any

person who commits such an offense should serve at least

a 25-year term of imprisonment without parole. We would

thwart this legislative directive if we were to conclude that

due process considerations require that Baker be allowed to

avoid the statutorily required minimum sentence because

the trial court failed to impose the mandated period of

parole ineligibility, and the State failed to appeal the

sentence for more than a year-and-a-half.

The State had the right to pursue an appeal of the illegal

sentence, and Baker now is serving the sentence mandated

for the crimes he has committed. The only possible relief

that Baker could obtain from either this court or the

district court on remand after further proceedings is that

he be released unless the state court resentences him to an

illegal sentence. See Orban v. Vaughn, 123 F.3d 727, 731

n.1 (3d Cir. 1997). Surely, only the most compelling

circumstances could justify a federal court to grant the

extraordinary relief of requiring a state court to impose an

illegal sentence as a condition of holding a prisoner in

custody. Those circumstances are not present here.

IV. CONCLUSION

We close with the following overview of this case. Baker

was constitutionally convicted and sentenced to the

minimum term for his offenses. In these circumstances, it

is quite remarkable that he petitions for a writ of habeas

16

corpus so that he can obtain an illegal result. We will not

grant him such relief.

For the foregoing reasons we will affirm the order of

September 24, 1997.

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POLLAK, District Judge, dissenting:

I.

As the court's opinion makes plain, one who, pursuant to

Strickland v. Washington, 466 U.S. 668 (1984), mounts a

challenge to a conviction and/or sentence on the ground of

asserted ineffective assistance of counsel, must, in order to

prevail, show that (1) "counsel made errors so serious that

counsel was not functioning as the `counsel' guaranteed the

defendant by the Sixth Amendment," id. at 687, and (2)

"there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

have been different." Id. at 694.

I agree with the court's persuasive demonstration that

Baker's "trial attorney's error with respect to his ignorance

of the sentencing law has satisfied the first prong of the

Strickland test." However, given the procedural posture of

this habeas corpus proceeding--in which we, as an

appellate panel, are reviewing a district court denial of the

writ based on pleadings and legal argument, no evidentiary

record having been made in the district court--I do not feel

that I can with entire confidence subscribe to the court's

conclusion that Baker "has not met the second Strickland

prong--a showing that there is a `reasonable probability

that, but for' the error, there might have been a different

result." The court's opinion argues with considerable force

the proposition that, even if Baker's trial attorney had in

1987 been properly informed about the 1986 amendment of

the statute governing sentence and had communicated that

information to Baker, his client, the sentence ultimately

imposed on Baker would not have been less severe than the

sentence he now challenges. Very possibly so. But the

court's argument, while long on advocacy, is somewhat

short on factual infrastructure--and this is unsurprising,

given that (1) no evidentiary record was made in the district

court and (2) it does not appear that any of the several

proceedings in the state courts focused systematically in

some factually comprehensive fashion on the sentencing

aspect of Baker's ineffective-assistance-of-counsel claim.

Accordingly, the appropriate course for this court to pursue

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is, so it seems to me, the conventional course of remand for

development of the facts.

The court eschews this course. The court states that "we

will not remand so that the district court can preside over

a charade in which witnesses testify about hypothetical

conduct." But characterizing the proposed district court

inquiry as one which would address "hypothetical conduct"

does not mean that no inquiry is called for. Any inquiry

into whether an acknowledged error--in this instance, the

ineffectiveness of counsel--was harmless or not necessarily

calls for an assessment of the likelihood that a road not

taken might have brought the traveler to a destination

other the than one actually arrived at. Characterizing such

an inquiry as "hypothetical" may signify that it could be

instructively pursued in a law school classroom, but it does

not serve to remove it from the courtroom. And so,

persuaded that this habeas corpus case should be

remanded for further proceedings, I respectfully dissent.1

II.

If this case were to be remanded for further proceedings

in the district court, I would think it proper that such

further proceedings also encompass some inquiry into a

facet of the ineffective-assistance-of-counsel issue which

has not been addressed by the parties in briefing and

arguing this appeal. I have in mind the question whether

Baker was adequately advised by counsel who represented

Baker in 1988, when, rather tardily, he undertook tofile an

appeal from his 1987 conviction. So far as I can determine

from the materials available to us on appeal, it appears

likely that appellate counsel, at the time Baker's appeal was

perfected, was, like trial counsel a year before, unaware of

the 1986 amendment of the sentencing statute. If that is

the case, we have a second instance of ineffective-

_________________________________________________________________

1. Notwithstanding my disagreement with the court on this Strickland

issue, I would note that I entirely agree with the court -- for the

reasons

given in the court's opinion -- that the action of the New Jersey courts

in extending Baker's unauthorized sentence to a term in conformity with

the strictures of the 1986 amendment of the sentencing statute did not

work a denial of Baker's substantive due process rights.

19

assistance-of-counsel--one that would appear to be even

more egregious than the first, since an additional year had

gone by since the Legislature changed the governing law.

And this putative second instance of ineffective-assistance-

of-counsel may very well have been the factor which

propelled Baker, through appellate counsel, to pursue what

proved to be the calamitous course of filing an appeal--

"calamitous" in that Baker's appeal set the stage for the

state's cross-appeal, leading to the longer sentence which

Baker has challenged in this habeas corpus proceeding.

Properly advised of the dramatically enhanced parole

ineligibility he might face were he to succeed on appeal and

thereby gain a new trial, and, potentially, a second

conviction, Baker might well have foregone filing the 1988

direct appeal of his 1987 conviction. On the other hand it

is indeed possible that, even if Baker had been properly

advised of the large risk an appeal entailed, he would

nonetheless have directed counsel to appeal. Which would

have been the more likely scenario we cannot tell. But in

order fully to assess whether Baker has a valid Strickland

claim with respect to his appeal, inquiry is called for. And

that inquiry would be the province of the district court,

unless that court were to determine that the question of

ineffective assistance of appellate counsel is unexhausted

and hence not open to current scrutiny on Baker's present

application for habeas corpus.

Conclusion

For the reasons given in Part I of this opinion, I dissent

from the judgment of the court. Were this case remanded to

the district court for the further proceedings contemplated

in Part I, those further proceedings should, in my

judgment, also entail inquiry into the issue identified in

Part II.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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