filed: October 4, 1994; As Corrected November 2, 1994.
On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. No. 90-00306).
Before: Becker and Hutchinson, Circuit Judges, and Joyner, District Judge.*fn*
David L. Nahodil, proceeding pro se, appeals from an order of the district court summarily denying his motion brought pursuant to 28 U.S.C. § 2255 to set aside his conviction of using a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), on the ground that his counsel was ineffective at a guilty plea hearing. The appeal turns on the distinction between the meaning of "prejudice to the government" in two contexts: (1) a § 2255 motion involving a claim of ineffective assistance of counsel in the plea proceeding; and (2) a proceeding to withdraw a guilty plea in the underlying criminal case. We conclude, just as the Supreme Court did in Vasquez v. Hillery, 474 U.S. 254, 264-65, 106 S. Ct. 617, 624, 88 L. Ed. 2d 598 (1986), which dealt with proceedings under 28 U.S.C. § 2254, that the appropriate prejudice determination under § 2255 (where ineffective assistance of counsel is claimed) encompasses not the government's facility in retrying the petitioner -- an important consideration in proceedings to withdraw the guilty plea -- but only its capacity to respond suitably to the petition. Because the district court applied the wrong standard, and because the record does not show conclusively that Nahodil is not entitled to relief, we will vacate the district court's order and remand for a hearing on the § 2255 motion.
In May 1991, Nahodil pled guilty to the firearms charge. On June 14, 1991, he moved to withdraw his guilty plea. Although the district court found fair and just reasons to allow Nahodil to withdraw his plea, it denied his motion because of its Conclusion that the government would be prejudiced due to the intervening death of the government's key witness, and sentenced him to sixty months imprisonment. See United States v. Nahodil, 776 F. Supp. 991, 996 (M.D. Pa. 1991). We affirmed both rulings in an unpublished opinion. See 972 F.2d 1334 (3d Cir.), cert. denied, 113 S. Ct. 672 (1992).
Nahodil, who is currently serving a state sentence and has not yet begun serving his federal sentence, moved under § 2255 to vacate the guilty plea. The district court dismissed the § 2255 motion without ordering a response or a hearing, and certified, pursuant to 28 U.S.C. § 1915(a), that any appeal would be deemed frivolous and not taken in good faith. Nahodil filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
The discretion of the district court summarily to dismiss a motion brought under § 2255 is limited to cases where the motion, files, and records "'show conclusively that the movant is not entitled to relief.'" United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992) (quoting Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). We review the district court's decision to do so for abuse of discretion. See id.
Nahodil's principal claim is that his counsel was ineffective for improperly advising him to enter a plea of guilty despite his repeated objections to doing so.*fn1 A § 2255 motion is a proper and indeed the preferred vehicle for a federal prisoner to allege ineffective assistance of counsel. See United States v. Sandini, 888 F.2d 300, 311-12 (3d Cir. 1989), cert. denied, 494 U.S. 1089, 110 S. Ct. 1831 (1990); cf. United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir. 1993) (holding that in a § 2255 motion alleging ineffective assistance of counsel the petitioner need not first raise the issue on direct appeal and need not show "cause and prejudice"), cert. denied, 128 L. Ed. 2d 196, 114 S. Ct. 1544 (1994). To show that ineffective assistance of counsel made his or her guilty plea involuntary, the movant must show that (i) his or her counsel's representation fell below an objective standard of reasonableness demanded of attorneys in criminal cases; and (ii) there is a reasonable probability that, but for counsel's errors, he or she would have proceeded to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203 (1985).
The record substantiates Nahodil's claim that he was quite reluctant to plead guilty. First, he did not want to admit at the plea hearing that he used a gun "during and in relation to a drug trafficking offense." 18 U.S.C. § 924(c)(1) (emphasis supplied). Second, he interrupted the hearing numerous times to confer with his attorney. Third, Nahodil experienced great difficulty with his decision to plead guilty, see Nahodil, 776 F. Supp. at 992-93, 996, and at one point during the plea hearing he attempted to enter a plea of nolo contendere, which the district court rejected.
Nahodil's reluctance to plead guilty and his claim to innocence may have a substantial basis in fact. He protests that he retrieved the firearm, a combination rifle/shotgun stashed in a wall rack, as a conversation piece rather than to threaten anyone, and that its retrieval had no relation to the drug transaction, which involved acquaintances in a small rural city. Indeed, when denying the motion to withdraw the guilty plea, the district court observed that "although it appears that circumstances surrounding Nahodil's possession of the . . . firearm . . . would be sufficient to support a jury verdict against him . . ., a jury could still acquit Nahodil of the charge if it found his explanation credible." Nahodil, 776 F. Supp. at 996. Nevertheless, in the order denying the § 2255 motion, the district court stated that, "regardless of the advice of counsel, petitioner made a knowing and voluntary plea." Order at 2 (July 15, 1993).
Under the Hill v. Lockhart standard, see supra at, the quality of the advice that Nahodil's counsel gave him during the plea hearing determines the voluntariness of his guilty plea. The record at this stage does not disclose what that advice was. It does impart, however, that Nahodil's attorney did not request a continuance despite Nahodil's oft repeated protestations of innocence and his considerable reluctance to plead guilty, and that his attorney did not ask to confer with him after the court rejected his plea of nolo contendere. Thus, the brief record does not preclude a finding that the content of his counsel's advice fell below the range of competence demanded of criminal defense counsel. Accordingly, unless the appeal may be disposed of on the prejudice prong, see infra, we are constrained to hold that ...