Anthony Velazquez v. Superintendent Fayette SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-3176
_____________

ANTHONY VELAZQUEZ

Appellant

v.

SUPERINTENDENT FAYETTE SCI; DISTRICT
ATTORNEY LANCASTER COUNTY; ATTORNEY
GENERAL PENNSYLVANIA
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. Action No. 5-15-cv-5177)
District Judge: Honorable Edward G. Smith
______________

Argued June 27, 2019

Before: SMITH, Chief Judge, CHAGARES, and
GREENAWAY, JR., Circuit Judges.

(Filed: September 3, 2019)
 ______________

Rosemary Auge [ARGUED]
Arianna J. Freeman
Federal Community Defender Eastern District of
Pennsylvania
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Plaintiff-Appellant

Travis S. Anderson [ARGUED]
Lancaster County Office of District Attorney
50 North Duke Street
Lancaster, PA 17602
Counsel for Defendants-Appellees
______________

OPINION OF THE COURT
_______________

GREENAWAY, JR., Circuit Judge.

Actions speak louder than words, but both speak. Our
criminal justice system thus presumes that a person’s actions
and words are altogether meaningful—that is, some degree of
intentionality is inherent to them. This presumption developed
at a time when we were far less cognizant of the varied ways
in which mental illness may influence conduct and speech. In
fact, our collective system would only recognize the role of
mental illness in the exceedingly rare instance in which such

2
illnesses rendered a defendant incapable of intentionality. A
number of states have since made efforts to reflect a more
developed understanding. This 28 U.S.C. § 2254 habeas case
stems from one such effort by the Commonwealth of
Pennsylvania.

In exchange for a waiver of the right to a jury trial,
Pennsylvania law permits a defendant to enter a special guilty
plea, formally known as guilty but mentally ill (“GBMI”). If
the plea is accepted, the defendant has the opportunity to
receive mental health treatment while serving her sentence.
The rationale is that providing treatment where needed will
reduce the likelihood that a defendant recidivates, which is in
her long-term interest and protects the public from the
attendant harms and costs of a repeat offender. See
Commonwealth v. Davis, 612 A.2d 426, 429–30 (Pa. 1992).

The waiver and entry of the plea are not enough to
secure this opportunity, however. This is because a trial judge
is not permitted to accept a GBMI plea unless she examines
certain reports, holds a hearing on the sole issue of the
defendant’s mental illness, and determines that the defendant
was mentally ill at the time of the offense. If the result of this
process is that the trial judge does not accept the GBMI plea,
the defendant’s right to trial is returned, and she may choose to
exercise it.

Appellant Anthony Velazquez was charged with
numerous offenses arising out of two sets of incidents: one
involving his paramour, and the other involving a corrections
officer. He had a history of mental illness, so he tried to enter
a GBMI plea. The GBMI plea was not accepted. The trial
judge did not examine the requisite reports, did not hold the
aforementioned hearing, and did not determine whether

3
Velazquez was mentally ill at the time of the offense. But
Velazquez’s right to trial was never returned to him. The trial
judge simply recorded that Velazquez had entered a normal
guilty plea. Trial counsel did not object to any of this.

Velazquez’s § 2254 habeas petition claims that
counsel’s failure to object constituted ineffective assistance of
counsel in violation of the Sixth Amendment and resulted in
his being deprived of the opportunity to plead GBMI. The
claim inheres two questions of first impression for this Court:
first, whether we can exercise habeas jurisdiction where a
petitioner merely asserts that the wrong guilty plea was entered
and, second, whether the requisite prejudice can be shown
where the appropriate plea would not have resulted in a
reduced sentence.

The District Court misconstrued the first question and
thus determined that it lacked habeas jurisdiction, and it never
passed on the second. We answer both in the affirmative. We
also agree with Velazquez that the assistance rendered by his
trial counsel was constitutionally defective. We will therefore
vacate the District Court’s order and remand with instructions
to grant the writ.

I. Background

A. Factual

Velazquez was charged on three separate Criminal
Informations in 2008. The allegations against him arose from
two sets of incidents: one involving his paramour, and the
other involving a corrections officer. With his paramour, he
entered a residence and got into a physical altercation with her
and another occupant, threatened her at his preliminary hearing

4
so that she would not testify against him, and, from prison, sent
numerous threatening letters to her to the same effect. With
the corrections officer, he refused to go into a holding cell
while he was detained. The corrections officer “sustained
scratches on his right arm while restraining [Velazquez] and
attempting to place [him] back inside the cell.” JA 208.

Velazquez was charged with burglary, intimidating a
witness, terroristic threats, and harassment for the incidents
involving his paramour. He was charged with aggravated
assault for the incident with the constable. Due to Velazquez’s
history of mental illness, his trial counsel advised him to enter
a GBMI plea on all charges. However, counsel was apparently
unaware of the prerequisites for such a plea to be accepted and
for Velazquez to have the opportunity to secure the treatment
that is the core benefit of the plea.

Specifically, Pennsylvania allows “[a] person who
waives his right to trial [to] plead [GBMI].” 18 Pa. Cons. Stat.
§ 314(b) (“section 314(b)”). But the law is express that,

No plea of [GBMI] may be accepted by the trial
judge until [s]he has examined all reports
prepared pursuant to the Rules of Criminal
Procedure, has held a hearing on the sole issue of
the defendant’s mental illness at which either
party may present evidence and is satisfied that
the defendant was mentally ill at the time of the
offense to which the plea is entered.

Id. (emphases added). In the event that a GBMI plea is not
accepted by the trial judge, section 314(b) provides that the
defendant is “permitted to withdraw h[er] plea” and is “entitled
to a jury trial . . . .” Id. If the GBMI plea is accepted, the

5
defendant may still have “any sentence imposed on h[er] which
may lawfully be imposed on any defendant convicted of the
same offense.” 42 Pa. Cons. Stat. § 9727(a) (“section
9727(a)”). However, she has the opportunity for a hearing and
a finding “on the issue of whether [she] . . . is severely mentally
disabled and in need of treatment” at the time of sentencing.
Id. (emphasis added). The consequence of a severely-
mentally-disabled-at-sentencing finding is that the defendant
would be provided the requisite treatment pursuant to section
9727(b).

Thus, all the entry of a GBMI plea provides a defendant
is process: a hearing on mental illness at the time of the offense
to determine whether the plea will be accepted and, if the plea
is accepted, a hearing on whether the defendant is severely
mentally disabled at the time of sentencing such that treatment
will be provided.

With this as the background, Velazquez agreed to enter
a GBMI plea and thus relinquished his right to trial, as outlined
in section 314(b). Entry of the plea did not proceed as section
314(b) requires, however. During the plea colloquy, the judge
announced that he would go through the “guilty plea portion”
that day, and then resolve the mentally ill aspect “most likely
prior to the date set for sentencing . . . .” JA 216–17. He
understood that “this is actually anticipated to be a [GBMI]
plea,” JA 216, and therefore directed counsel to schedule the
requisite hearings: “[A]s I indicated earlier, [defense counsel]
will be getting the medical records together for a further
hearing with regard to [the GBMI] aspect of this plea,” JA 226.

Trial counsel agreed with the judge’s proposed process,
stating:

6
 Correct, Judge. It was my understanding that we
would be having him plead guilty to the facts and
then we would be reserving at the time of
sentencing a possible hearing to address the
[GBMI] and have the Court make that
determination at that time.

JA 217 (emphasis added).

The trial judge proceeded to confirm with Velazquez
that what he sought to enter was a GBMI plea. The judge then
reiterated that, after taking the plea, he would hold a “further
hearing with regard to [the GBMI] aspect of [Velazquez’s] plea
. . .” JA 226. The Commonwealth’s only addition was that it
would request a specific hearing “just on the matter of whether
[Velazquez] will be sent to a mental health hospital or . . . a
state correctional facility that contains a mental health
hospital.” JA 227.

Velazquez’s trial counsel did not secure the requisite
medical records or examinations for a GBMI plea, and no
mental health hearing was held. He also did not object when
the trial judge ultimately sentenced Velazquez without holding
the hearing to which the judge initially alluded. Nor did he
take issue when the trial judge recorded the plea as “Guilty
Plea,” rather than “Guilty Plea/Mentally Ill” after both the plea
hearing and sentencing. JA 230, 241.

B. Procedural

This is the first time that a court will consider these
errors by trial counsel, and it comes nearly a decade since
Velazquez was sentenced. Some explanation is warranted.

7
 The procedural framework explains the timing.
Notably, a criminal defendant who is convicted in state court
and who challenges his conviction or sentence under 28 U.S.C.
§ 2254 is required to first do so on direct appeal—that is, up
through the state court system until no further appeal can be
had. If unsuccessful on direct appeal, the defendant then has
to exhaust the state’s collateral appeal process, where one is
available and effective. See § 2254(b)(1)(A) & (B)(ii).
Pennsylvania has such a process, pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541–
46. This process begins with a defendant’s filing a petition to
a PCRA court and proceeds in the same manner as a direct
appeal, ending when no further appeal can be had. Then, and
only then, may a defendant file a 28 U.S.C. § 2254 petition like
the one here. See 28 U.S.C. § 2254(b)(1). Needless to say, this
process takes time. The hope is that the state courts will
identify and correct any errors before a federal court is called
upon.

This hope did not manifest here. The state courts did
not pass on the claim before us. Unfortunately, the likely
explanation is oversight. Indeed, despite the clear language of
section 314(b) and section 9727(a), every prior court and
lawyer involved in this matter believed that Velazquez’s
GBMI plea was accepted by the trial judge and did not find
error in trial counsel’s performance.

Neither trial counsel nor the trial judge were aware that
there was an error with the plea. Trial counsel’s lack of
knowledge is further highlighted by the fact that he made no
reference to section 314(b) on direct appeal. Instead, he falsely
stated that Velazquez’s GBMI plea had been accepted, which
the trial court and the Pennsylvania Superior Court repeated.

8
 In the brief supporting his pro se petition for PCRA
relief, Velazquez also stated that he “entered a plea of
[GBMI].” JA 311 ¶ 66 (emphasis added). But, as he
articulated it, his claim for relief was premised on what
happened after—that is, the procedural defects in the plea
process and trial counsel’s constitutionally defective
performance. He first explained that “no hearing was held on
the mental health aspect of [his] case and the Court never made
a finding that [he] was mentally ill at the time of the offense.”
JA 312 ¶ 71. In support, he quoted verbatim what section
314(b) required, as well as what section 9727(a) required. Id.
¶¶ 68–69. And, immediately thereafter, he stated that “[t]rial
counsel did not object to the [this] defective procedure[, as he]
did not request the Court to hold the hearings and make the
findings required by 18 Pa.C.S.A. § 314 and 42 Pa.C.S.A. §
9727(a).” Id. ¶ 72 (emphasis added). Velazquez concluded by
asserting that counsel “had no reasonable strategic basis for
failing to object,” and that he “was prejudiced since there was
no on the record finding of mental illness and . . . no finding
that he is severely mentally disabled . . . .” Id. ¶ 73–74
(articulating further that the absence of these findings resulted
in his “not receiving the programming and treatment which he
would otherwise receive while incarcerated in the state prison
system”).

His claim was nonetheless overlooked. In a two-page
no-merit letter,1 Velazquez’s PCRA counsel characterized

1
Though not required, Pennsylvania affords counsel to
PCRA petitioners. A no-merit letter is a mechanism by which
appointed PCRA counsel may seek to withdraw from
representing a petitioner, on the basis that the petition is
meritless. The letter is sent to the petitioner and must detail the

9
Velazquez’s GBMI claim as only that “[Velazquez] should
have been afforded a ‘Mental Health Hearing,’ before being
sentenced.” JA 332 (emphasis added). He then reasoned that
such a hearing was unnecessary because the Commonwealth
withdrew its challenge to Velazquez’s GBMI status. And he
too ultimately averred that the “plea entered [w]as [GBMI],”
and thus concluded that the failure to evaluate Velazquez prior
to his sentencing did not prejudice him. Id.

Velazquez challenged the letter, again stating the points
in his pro se brief. He added that he knew his pro se
submissions might have been “inarticulately drafted from the
start,” and so “expected, desired, and wished PCRA counsel
[would] raise in an Amended PCRA petition [what had] to be
gleaned from” his brief in support. JA 350.

But this was to no avail: the PCRA court adopted
PCRA counsel’s framing and reasoning and ultimately
dismissed Velazquez’s petition. The Superior Court affirmed,

nature and extent of the lawyer’s review of the case, list each
issue the petitioner wishes to have reviewed, and contain an
explanation of why the lawyer believes that the petitioner’s
issues are meritless. Commonwealth v. Finley, 550 A.2d 213,
215 (Pa. 1988). The PCRA court must then “conduct[] its own
independent review of the record” and determine whether it
agrees that the petition is meritless. Id. (emphasis added). If
so, counsel is permitted to withdraw, and the petitioner is
allowed to proceed pro se or with the aid of private counsel.
Id. The federal analog is a motion pursuant to Anders v.
California, 386 U.S. 738 (1967).

10
adopting the PCRA court’s opinion and reasoning. The
District Court rejected the claim on the basis that it was not
cognizable in federal habeas. It also added that, because “the
Commonwealth ultimately did not challenge [Velazquez’s]
assertion that he was [GBMI], . . . the trial court accepted [his
GBMI] plea without conducting a hearing.” JA 22.

Velazquez appealed pro se, and counsel was later
appointed.

II. Discussion

In order to appeal the District Court’s decision as a 28
U.S.C. § 2254 habeas petitioner, Velazquez had to first seek a
certificate of appealability (“COA”). See 28 U.S.C. §
2253(c)(1)(A). The certificate could only be issued by a circuit
justice or judge, where Velazquez made a substantial showing
of a denial of a constitutional right. § 2253(c)(1) & (2). The
certificate would then indicate the specific issue(s) that
satisfied the required showing. See § 2253(c)(3).

Two Panels of judges on this Court construed
Velazquez’s appeal as one such request, and ultimately granted
the certificate for two issues: first, whether trial counsel was
ineffective for advising Velazquez to enter a guilty plea on the
aggravated assault charge (“aggravated assault claim”) and,
second, whether trial counsel was ineffective for failing to
object to the defective plea procedure which resulted in
Velazquez’s being deprived of the opportunity to enter a GBMI
plea (“GBMI claim”).2

2
In a case about the deficient performance of one
lawyer, we pause to commend another. The initial Motions

11
 We will grant the petition with respect to the GBMI
claim, which obviates the need to reach the aggravated assault
claim.3 As the Commonwealth conceded at oral argument, the
remedy for the GBMI claim is to vacate the current judgment
of conviction as to all charges, including the aggravated assault
charge. See Oral Arg. Audio 21:24–22:02.

Our analysis will thus consist of a determination as to:
(A) whether we may exercise habeas jurisdiction over
Velazquez’s GBMI claim, (B) the appropriate standard of
review, which will include a determination as to whether the
GBMI claim was properly exhausted in state court, and (C) (1)
whether trial counsel was ineffective for failing to object to the
defective plea procedure, and (2) whether this prejudiced
Velazquez.

A. Jurisdiction

The sole inquiry for habeas jurisdiction is whether
“granting the petition [as to the claim] would ‘necessarily

Panel did not grant a COA as to Velazquez’s GBMI claim.
Once appointed, however, counsel skillfully and diligently
reviewed the record and moved to expand the COA to include
this claim. In so moving, counsel pointed out that, contrary to
the averments by every court and lawyer before, the record
reflected that Velazquez’s GBMI plea was not accepted. The
motion was granted.
3
The crux of the aggravated assault claim is that
Velazquez was advised to enter a GBMI plea to all charges,
without being informed that the Commonwealth’s case for
aggravated assault might have been materially deficient.

12
imply’ a change to the fact, duration, or execution of the
petitioner’s sentence.” McGee v. Martinez, 627 F.3d 933, 936
(3d Cir. 2010) (citations omitted). The District Court took
Velazquez’s characterization of the relief he sought at face
value and determined that a claim seeking mental health
treatment during incarceration does not imply a change to the
fact or duration of confinement. We view the appropriate relief
differently and conclude otherwise.

1.

At the outset, contrary to the District Court’s ruling,
even if one concludes that a claim is not cognizable in habeas,
the claim is not necessarily dismissed.

Section 2254(a) confers jurisdiction to “[t]he Supreme
Court, a Justice thereof, a circuit judge, or a district court” over
habeas petitions from state prisoners. 28 U.S.C. § 2254(a).
The grant is limited to challenges to state-court judgments on
“the ground that [the petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.” Id.
(emphasis added). Consistent with prevailing Supreme Court
precedent, we interpreted the “in custody” language as
rendering § 2254 the exclusive mechanism for state prisoners
to challenge the validity, the duration, and execution of their
confinement. Coady v. Vaughn, 251 F.3d 480, 484–86 (3d Cir.
2001). As a consequence, a state prisoner who attempts to
attack the validity, duration, or execution of her sentence by
any other means is met with dismissal of her claims. See
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). One
rationale is to ensure that state prisoners do not evade the §
2254 requirement that provides state courts with the
opportunity to correct their own errors before a federal court is

13
called upon. See Preiser v. Rodriguez, 411 U.S. 475, 489–90
(1973).

Conversely, we have also held that a petitioner who
seeks habeas relief for claims that do not qualify as attacking
the fact, duration, or execution of a sentence may not maintain
the suit as a habeas action. See Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 242 n.5 (3d Cir. 2005); see also Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998) (concerning a 28
U.S.C. § 2241 petition, which also covers challenges to the
fact, duration, and execution of a sentence); McGee, 627 F.3d
at 934 (same). But we do not automatically dismiss the claim
in these instances. Instead, we maintain that “all [the
petitioner] has done is mislabel his suit, and either he should
be given leave to plead over or the mislabeling should simply
be ignored.” Royce, 151 F.3d at 118 (internal quotation marks
omitted) (quoting Graham v. Broglin, 922 F.2d 379, 381–82
(7th Cir. 1991)); see also Leamer, 288 F.3d at 542 (suggesting
that “an action under [42 U.S.C.] § 1983 is appropriate” where
“a finding in plaintiff’s favor would not alter his sentence or
undo his conviction”); McGee, 627 F.3d at 934 (setting forth
the question as whether the “petitioner . . ., a federal inmate,
may maintain [his] suit as a habeas action under 28 U.S.C. §
2241, or whether he must re-file it as a civil rights action under
[Bivens].” (emphasis added)).

Thus, a determination that a claim brought in habeas is
not cognizable in habeas does not, by itself, end the inquiry.

2.

That said, as we previously alluded, granting the
petition with respect to the GBMI claim requires concluding
that Velazquez’s guilty plea was invalid. Challenges to the

14
validity of a guilty plea are among those that make up “th[e]
traditional scope of habeas corpus.” Preiser, 411 U.S. at 486–
87 (referencing, inter alia, Von Moltke v. Gillies, 332 U.S. 708
(1948), which involved a challenge to the validity of a guilty
plea). This is true regardless of what the petitioner ultimately
seeks to do once the plea is invalidated. Compare Hill v.
Lockhart, 474 U.S. 52, 53 (1985) (seeking to exercise the right
to trial) with Missouri v. Frye, 566 U.S. 134, 138 (2012)
(seeking to enter a different guilty plea than the one already
entered and accepted).

Velazquez’s pro se filings describe the appropriate
remedy in plain terms: but for counsel’s errors, he would have
received mental health treatment. Expectedly so, this
expression glosses over the complex legal framework at play.
That framework provides no guarantee that either hearing—the
one for acceptance or the one for sentencing—would have
ended in Velazquez’s favor. Section 314(b) contemplates that
a hearing might result in a denial of the GBMI plea, and thus
instructs that a defendant will then have the ability to withdraw
his plea entirely and invoke his right to trial. See section
314(b). And the benefits of section 9727(b) are contingent on
an affirmative finding by way of section 9727(a). See section
9727 (a) & (b). Reading these together, then, when Velazquez
argues that he suffered a deprivation, he is referring to a
deprivation of the process these provisions provided him,
which, in substance, means the opportunity for mental health
treatment that the process facilitates. The appropriate remedy
is thus not mental health treatment, albeit the object of the
opportunity the process facilitates, but rather a restoration of
the process itself. The course for doing so is to vacate the
current judgment of conviction.

15
 The Supreme Court’s decision in Lafler v. Cooper, 566
U.S. 156 (2012), is instructive to this effect. Again, the Court
did not hesitate to exercise habeas jurisdiction where the
defendant had been convicted and sentenced, but argued that
plea counsel’s ineffective assistance led him to decline the
previous plea offer. See id. at 173. More importantly, the
remedy was not an alteration of the defendant’s sentence to
reflect what he would have received had the appropriate plea
been entered. Id. at 170–71 (explaining that this is the remedy
only in cases in which “the sole advantage a defendant would
have received under the plea is a lesser sentence” (emphasis
added)). Rather, the Court fashioned a remedy that would
provide the defendant the opportunity of which he was
deprived—that is, the opportunity to accept the prior plea offer.
See id at 174–75. To do so, the Court ordered the State of
Michigan to reoffer the plea agreement that the defendant
previously turned down on counsel’s advice. Id. at 174. And,
“[p]resuming [the defendant] accept[ed],” the Court left it to
the state trial courts to determine whether to vacate the
[defendant]’s conviction and resentence him pursuant to the
plea agreement. Id. (emphasis added). In sum then, for these
purposes, the Court restored the state of the world to what it
would have been had plea counsel never been constitutionally
defective.

Though not the same remedy, the same approach is
warranted here. Indeed, the Lafler Court only needed to ensure
the plea agreement’s re-offer in order to restore the state of the
world absent plea counsel’s constitutionally defective
performance. A slightly different remedy is due if the same
state of the world is to be approximated in our case. This is
because Pennsylvania does not provide its courts the role seen
in Lafler when it comes to GBMI pleas. See Frye, 566 U.S. at

16
150 (“States have the discretion to add procedural protections
under state law if they choose.”). Its statutory scheme
mandates a particular course by its trial courts. This includes
a hearing to determine whether a GBMI plea is accepted, and
then, if it is not, that the defendant may insist on going to trial.
As a result, maintaining the judgment of conviction pursuant
to the defective plea and leaving it to the trial judge’s discretion
would be contrary to state law. Instead, a faithful application
of the law counsels vacating the current judgment of conviction
and permitting Velazquez to take advantage of the process the
law affords him. This is the course we will take.

As such, Velazquez’s pro se characterizations
notwithstanding, this case necessarily implies a change to the
fact of his conviction, and thus should be resolved within the
parameters of habeas.

B. Standard of Review

We review the District Court’s and state court’s
decisions on Velazquez’s GBMI claim de novo. The District
Court’s decision because it did not conduct an evidentiary
hearing. See McKeever v. Warden SCI-Graterford, 486 F.3d
81, 83 (3d Cir. 2007); Hakeem v. Beyer, 990 F.2d 750, 758 (3d
Cir. 1993). And the state court decision because the state
courts did not adjudicate the claim on the merits, despite its
being properly exhausted. See Chadwick v. Janecka, 312 F.3d
597, 605–06 (3d Cir. 2002).

There is no dispute that the state courts did not
adjudicate Velazquez’s GBMI claim on the merits. Trial
counsel did not raise the claim on direct appeal. PCRA counsel
falsely averred that Velazquez’s GBMI plea was in fact
accepted, and thus construed the claim as only speaking to

17
section 9727(a). The PCRA and Superior Courts did the same.
As a result, the state courts “misunderstood the nature” of
Velazquez’s claim, and failed to adjudicate it on the merits.
Chadwick, 312 F.3d at 606.

The Commonwealth appears to concede that there is no
state court decision on the merits of the claim before us.
However, it initially argued that this is because Velazquez
failed to present his claim to the state courts, not because it was
misconstrued. If successful, the consequence of this argument
would have been twofold: (1) it would have meant that
Velazquez failed to exhaust his GBMI claim, which warrants
dismissal unless he could establish cause and prejudice, and (2)
regardless of whether he could establish cause and prejudice
for his failure to exhaust, the state court decision would be
entitled to Anti-Terrorism and Effective Death Penalty Act
deference.4

Neither consequence is warranted. The
Commonwealth’s failure-to-exhaust argument was always a
nonstarter. Our jurisprudence merely requires a petitioner to
give the state courts the “opportunity to pass on the merits of a
claim.” Hameen v. State of Delaware, 212 F.3d 226, 247 (3d
Cir. 2000). That opportunity was provided here. The crux of
the claim before us is whether counsel was ineffective for

4
This means we would have only been able to grant
relief from the state court’s decision if it was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” id. at § 2254(d)(1), or involved an “unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding,” id. at § 2254(d)(2).

18
failing to object to a defective plea procedure, and whether this
resulted in Velazquez being relegated to a normal guilty plea.
Velazquez’s initial pro se brief is representative of the ways in
which his filings provided ample basis to pass on the merits of
this claim.

In it, he presents what section 314(b) required for a plea
to be accepted, what it required in the event that a plea was not
accepted, and what section 9727(a) and (b) provide in the event
that a plea was accepted. He then explains that trial counsel
was deficient for failing to object to the trial judge’s failure to
apply the procedures required by both. Along with that
accurate description of the defects in the plea procedure, the
state courts had in their possession the plea transcript and the
plea documents, both of which corroborated the clear
implication of Velazquez’s argument: the GBMI plea was not,
and could not have been, accepted.

The Commonwealth’s initial view was that Velazquez’s
false averment that his GBMI plea had in fact been accepted
changed the claim in its entirety. That is, rather than the claim
before us, Velazquez presented to the state courts the separate
claim that he was deprived of a hearing for mental health
treatment purposes. We are not persuaded. And, as it turns
out, nor was the Commonwealth. It conceded at argument that
the claim was exhausted for substantially the reasons we have
set forth. Oral Arg. Audio 19:38–49 (conceding that
Velazquez articulated a section 314(b) defect “every step of the
way”).5

5
The Commonwealth’s remaining argument on this
issue was that the state courts’ failure to consider the claim
prejudiced it because it could not develop a record regarding

19
 We will therefore reach the merits of Velazquez’s
claim, and our review is de novo.

C. Merits

On the merits, Velazquez claims that counsel was
ineffective for failing to object to the defective plea process
and, as a result, he was denied the opportunity to plead GBMI.
Strickland v. Washington, 466 U.S. 668 (1984), provides the
framework for analyzing such a claim. The operative inquiry
is twofold: first, whether counsel was in fact ineffective and,
second, if so, whether counsel’s ineffectiveness prejudiced
Velazquez. We answer both in the affirmative.

1.

The ineffectiveness inquiry centers on whether “counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
United States v. Bui, 795 F.3d 363, 366 (3d Cir. 2015) (citation
omitted). This requires a showing that “counsel’s
representation fell below an objective standard of

the advice trial counsel gave Velazquez. Oral Arg. Audio
20:15–33. Even if we concluded that this somehow factors into
whether the claim was exhausted in the first instance—which
it does not—Velazquez’s claim centers on trial counsel’s
failure to object to a defective plea procedure, not on any
advice that trial counsel provided him. As a result, the record
contains all that is relevant, which consists of the process
Pennsylvania law requires, the failure to provide Velazquez
that process, and counsel’s failure to object.

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reasonableness.” Lafler, 566 U.S. at 163 (internal quotation
marks omitted) (quoting Hill, 474 U.S. at 57).

This standard is easily met here. It is well established
that “[a]n attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v.
Alabama, 571 U.S. 263, 274 (2014). There is ample basis in
the record to conclude that trial counsel was ignorant of the
GBMI-plea procedures prescribed by Pennsylvania law. He
concurred in the trial judge’s suggestion that he would procure
the necessary records and facilitate the requisite hearing, but
failed to assure that this procedure was followed and failed to
verify that the plea documents reflected the plea his client
sought to enter. This falls below the performance expected of
the counsel guaranteed by the Sixth Amendment.

2.

Velazquez’s case for prejudice is that there is a
reasonable probability that, but for counsel’s errors, he would
have entered a GBMI plea. Appellant’s Op. Br. 28.
Importantly, Pennsylvania law is clear that a GBMI plea will
not operate to reduce the sentence of a defendant. See section
9727(a). This case thus presents a question of first impression
for our Court: whether Strickland prejudice can be established
in the plea context where there is no showing that the length of
the petitioner’s sentence will be affected.

Traditional inquiry for prejudice in the plea context is
whether there is a reasonable probability that, but for counsel’s
errors, the petitioner would have foregone a guilty plea and
insisted on trial. Hill, 474 U.S. at 59 (describing the inquiry as

21
“focus[ing] on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process”
(emphasis added)). The proliferation of plea bargaining led the
Supreme Court to expand this inquiry to cover instances in
which the deprivation of the right to trial was not the concern,
but rather the opportunity to enter a different guilty plea. See
Lafler, 566 U.S. at 163–69 (stating that the fact that defendants
“have no right to be offered a plea . . . nor a federal right that
the judge accept it . . . is beside the point” (first alteration in
original) (internal quotation marks omitted) (quoting Frye, 566
U.S. at 148)). However, the Court required that there be a
showing as to whether the other plea would have been
available, accepted by both the petitioner and the court, and,
importantly, that the other plea offered “less severe” terms than
the “judgment and sentence” that was in fact imposed. Lafler,
566 U.S. at 163–64 (emphasis added); Frye, 566 U.S. at 148–
49 (same).

It is not clear that Velazquez would have met this
standard. The record demonstrates that the GBMI plea was
available, Velazquez attempted to enter it, and the trial judge
sought to accept it. But, as the Commonwealth points out,
nothing suggests that the claim’s acceptance would have
resulted in a finding that Velazquez was severely mentally ill
at the time of sentencing. Equally, it is not clear that the mental
health treatment that would result from such a finding would
qualify as “less severe” terms than Velazquez’s present
sentence, given that the length of the sentence would not
change.

To Velazquez’s benefit, however, the Hill inquiry has
since been expanded in three subsequent cases that are binding
on our Court. This began with our precedential decision in
Vickers v. Superintendent Graterford SCI, 858 F.3d 841 (3d

22
Cir. 2017). The case involved an ineffective-assistance-of-
counsel claim where the petitioner had been advised to forgo
his right to a jury trial and to opt for a bench trial. Id. at 844–
46. In determining the operative prejudice inquiry, the Vickers
Panel labeled the inquiry set forth in Hill the “process-based
analysis.” Id. at 856. This was because the Hill inquiry did not
involve examining the petitioner’s likelihood of success had he
insisted on trial, but merely whether he would have gone to
trial at all—that is, whether he would have taken advantage of
the process of which he was deprived. See id. at 855.

In contrast, our prior precedent for waivers of the right
to jury trial required a showing that the jury trial would have
resulted in a more favorable outcome than the bench trial. See
United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008). The
Vickers Panel overturned this precedent on the basis that Lafler
confirmed that Hill’s process-based analysis ought to govern.
See Vickers, 858 F.3d at 857.6 It then defined the proper

6
The Panel explained that:

Our holding regarding the appropriate prejudice
inquiry in this context, which merely
aligns Lilly with the Supreme Court’s
subsequent decision in Lafler, does not
necessitate en banc review. As occurs from time
to time, ‘a panel of our Court may decline to
follow a prior decision of our Court without the
necessity of an en banc decision when the prior
decision conflicts with a Supreme Court
decision.’

23
prejudice inquiry as “whether the defendant can demonstrate a
reasonable probability that, but for counsel’s ineffectiveness,
he would have opted to exercise [the] right [at issue].” Id.

The Supreme Court affirmed the view espoused in
Vickers less than a month later in Lee v. United States, 137 S.
Ct. 1958 (2017), and more recently in Garza v. Idaho, 139 S.
Ct. 738 (2019). In Lee, the petitioner was an immigrant who
had been incorrectly advised that his acceptance of a plea offer
would not have any immigration consequences. 137 S. Ct. at
1962–63. The petitioner in Garza’s requests to counsel to file
a notice of appeal on his behalf had been denied by counsel on
the basis that his plea agreements included two waivers of the
right to appeal. 139 S. Ct. at 742–43. The Supreme Court
found prejudice in both instances. Lee, 137 S. Ct. at 1967
(examining solely whether the petitioner “ha[d] adequately
demonstrated a reasonable probability that he would have
rejected the plea had he known that it would lead to mandatory
deportation”); Garza, 139 S. Ct. at 746–48 (citing Lee, 137 S.
Ct. at 1966–67, as supporting the proposition that, “when
deficient counsel causes the loss of an entire proceeding, [the
Court] will not bend the presumption-of-prejudice rule simply
because a particular defendant seems to have had poor
prospects” (emphasis added)).

Critically, it was clear that the right or opportunity of
which the petitioners were deprived would not amount to a
more favorable outcome, and certainly not one in the form of a
lesser sentence. Indeed, in Lee, the Court acknowledged that
the plea that would be vacated “carried a lesser prison sentence

Vickers, 858 F.3d at 857 n. 15 (quoting United States v. Tann,
577 F.3d 533, 541 (3d Cir. 2009)).

24
than [the petitioner] would have faced at trial,” and that the
petitioner “had no real defense to the charge” against him. Lee,
137 S. Ct. at 1962 (emphasis added). Similarly, in Garza, the
Court acknowledged that the merits of the issues the petitioner
wanted to raise on appeal were irrelevant; the only inquiry in
the Court’s view was whether the petitioner would have
exercised his right to appeal, “with no need for a further
showing of his claims’ merit.” 139 S. Ct. at 747 (internal
quotation marks omitted).

The combined effect of Vickers, Lee, and Garza is that
petitioners alleging ineffective assistance of counsel resulting
in a deprivation of process need not show that the decision to
undergo the process would have resulted in a more favorable
outcome. Instead, they need only demonstrate a reasonable
probability that, but for counsel’s error(s), they would have
made the decision—that is, chosen to exercise the right or take
advantage of the opportunity of which they were deprived.

As a result, Velazquez does not need to demonstrate that
his GBMI plea is likely to be accepted or that a favorable
finding of severe mental illness will result. Nor does he need
to demonstrate that the outcome of the two findings will be a
lesser sentence. We will find prejudice if there is a reasonable
probability that, but for trial counsel’s failure to object to the
defective plea procedure, Velazquez would have taken
advantage of the process of which he was deprived. The record
is unequivocal that this is the case. The only hindrance to
Velazquez’s efforts to enter a GBMI plea was the
constitutionally defective assistance he received from trial
counsel.

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 *****

In sum, we exercise habeas jurisdiction and review the
District Court’s and state court’s decisions on Velazquez’s
GBMI claim de novo. We conclude that trial counsel rendered
ineffective assistance, and that Velazquez was prejudiced as a
result. We will therefore vacate the District Court’s order and
remand with instructions to grant the petition for the writ with
respect to Velazquez’s GBMI claim. The grant shall vacate
Velazquez’s present judgment of conviction.

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