# James Baker v. James F. Barbo Attorney General of the State of New Jersey > Court of Appeals for the Third Circuit · May 13, 1999 · 177 F.3d 149 URL: https://www.frixlaw.com/law-library/cases/9492167 ## Case - **Full name:** James BAKER, Appellant, v. James F. BARBO; Attorney General of the State of New Jersey - **Court:** Court of Appeals for the Third Circuit - **Decided:** May 13, 1999 - **Citations:** 177 F.3d 149; 1999 U.S. App. LEXIS 9046; 1999 WL 301737 - **Precedential status:** Published - **Opinion:** Dissent by Pollak - **Judges:** Greenberg, Roth, Pollak - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492167 ## How later opinions describe it (automated extraction) - holding that “a trial attorney’s error with respect to his ignorance of the sentencing law [at issue in the case] has satisfied the first prong of the Strickland test” - holding that “totally speculative” arguments as to prejudice did not show a “a probability sufficient to undermine confidence in the outcome” - noting that the “power of the sentencing court to correct an invalid sentence must be subject to some temporal limit” (internal quotation marks omitted) ## Opinion text POLLAK, District Judge, dissenting: I. As the court’s opinion makes plain, one who, pursuant to Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (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 properi ly 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 is, so it seems to me, the conventional course of remand for development of th¿ 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 *160 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 to file 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 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. . 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492167. Public record. Not legal advice.