Full opinion text
OPINION OF THE COURT PER CURIAM. The District Court conditionally granted a writ of habeas corpus to Christopher Boyd. The Commonwealth appealed, 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, — U.S.-, -, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); it is not barred by Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), or Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (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 Seirica Op. at 335-37 & n. 7. A further word is needed about the appropriate use of evidentiary hearings. The Magistrate Judge in this ease 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 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. . For ease of reference, we use the term "Commonwealth” to denote Appellants Warden, SCI Waymart; the District Attorney of Philadelphia County, Pennsylvania; and the Attorney General for the Commonwealth of Pennsylvania.
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, — U.S. -,-, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009). Accordingly, I join Part III of Judge Hardiman’s opinion. In my view, however, Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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 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). 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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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). 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 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (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 to denying this claim, the Pennsylvania Superior Court found, as 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 misidentified 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 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, but 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, 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 Court 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 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 of Boyd’s ineffective assistance of counsel claim is entitled to AED-PA 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 on 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.” 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, 120 S.Ct. 1495 (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. § 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 was previously unavailable; or (ii) a factual predicate that could not have been previously 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. 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, 120 S.Ct. 1479, 146 L.Ed.2d 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, 120 S.Ct. 1479 (“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 “[djiligence 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 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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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. 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 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 “faetor[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 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. For these reasons, I would reverse and remand to a different district court judge. . The District Court found that de novo review was also 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, 598 Pa. 639, 960 A.2d 1, 12 (2008) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (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, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). . The Pennsylvania Superior Court expressly noted the 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]?” . Under Pennsylvania law, a petition for post-conviction 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. . The prejudice prong of Strickland calls for another factual 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. . Judge Sloviter's opinion states that the Superior Court's 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 346 (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 factual 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 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, 125 S.Ct. 2456 (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 highest 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 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.”). . Such a hearing might have the additional benefit of further 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 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. . If the original district court judge were to reach the same 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). . I express no opinion about the ultimate merits of Boyd’s claim.
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 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 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 Op. at 367. Nonetheless, Judge Hardiman’s opinion concludes that “the adequacy of Sciolla’s representation with respect to the Commonwealth’s initial guilty plea offer is immaterial,” Hardiman Op. at 371, and, in so concluding substantially curtails the scope and effect of Strickland. I. Background 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 hearing 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 that “the state court found that Sciolla informed Boyd of the initial plea offer and Boyd chose not to accept it.” Hardiman Op. at 378. 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 asked 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 time 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. 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 communication by it nor by any affidavit by the prosecutor. 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 Op. at 365 n. 28. 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 Seiolla’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 “[tjhere is no plea agreement in this case.... ” App. at 159. The court informed 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 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 arguments 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.”). In an opinion dated November 18, 2002, on Boyd’s direct appeal, the Superior Comb 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, 254 Pa.Super. 54, 385 A.2d 521 (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 ease.’ ” 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 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 Comb held that Boyd’s guilty plea was entered knowingly, intelligently, and voluntarily. App. at 76. 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 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 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. 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 Op. at 372-73, and has never receded from that position. Quoting from Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (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 Op. at 372 (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, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a state 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, 93 S.Ct. 1602. 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, 93 S.Ct. 1602. 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. 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. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (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. 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, 104 S.Ct. 2543. 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 “[Respondent [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, 104 S.Ct. 2543. 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 samé 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, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), where the Court stated that in reviewing claims of ineffectiveness of counsel, the focus is “ ‘not 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 eases.’ ” Tollett, 411 U.S. at 264, 93 S.Ct. 1602 (quoting McMann, 397 U.S. at 771, 90 S.Ct. 1441). See also Tollett, 411 U.S. at 267, 93 S.Ct. 1602 (“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 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 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, 104 S.Ct. 2039, 80 L.Ed.2d 657 (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 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, 104 S.Ct. 2039 (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, 90 S.Ct. 1441). 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, 68 S.Ct. 316, 92 L.Ed. 309 (1948). The decision whether to plead guilty is a fundamental decision in a criminal case. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong entails a determination whether trial counsel’s performance was deficient when measured by an objective reasonableness standard. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.