dissenting.
In its decision today, the majority reverses the District Court’s grant of habeas corpus to a petitioner who received virtually identical — and equally incorrect — advice from counsel during his plea colloquy as that given by counsel in Meyers v. Gillis — a ease in which we affirmed the habeas grant. Because I believe our decision in Meyers v. Gillis, 142 F.3d 664 (3d Cir.1998), is controlling, and because I am unpersuaded by the majority’s attempt to distinguish the two cases, I would affirm the District Court. I therefore respectfully dissent.
At Scarbrough’s plea colloquy, at which time he pleaded guilty to second degree murder, defense counsel initially thanked the district attorney for the plea offer and asserted “in the event that Mr. Scarbrough is considered for parole at any time, that they will inform the necessary authorities of his cooperation.” (T.T. 68-69). Then, after the judge sentenced Scarbrough to prison “for the remainder of his natural life,” Scarbrough expressed alarm and asked his attorney if that meant he would never be eligible for parole. Defense counsel turned to the court, in the presence of the district attorney and Scarb-rough, and said “I want to correct him and state that’s the terminology used in the statute ... and while that’s the terminology, he is eligible for parole and may be at some time.” (T.T. 87) (emphasis added). The judge responded to this incorrect statement of law by simply saying “that’s up to the Department of Probation and Parole.”
In comparison, in Meyers v. Gillis, we upheld the district court’s grant of habeas relief to a petitioner who pleaded guilty to second degree murder after being incorrectly informed by his attorney that he would be eligible for parole in seven years. Id. at 665. We wrote:
The record is replete with instances where Meyers was informed that he would become eligible for parole sometime in the future despite pleading guilty to a crime that carried a mandatory life sentence ... Such statements were even made during the sentencing hearing-in the presence of the judge and prosecutor, and neither made any effort to clarify Meyers’ ineligibility for parole.
Id. at 667. Under these facts, we held that this erroneous advice from counsel “fell below an objective standard of reasonableness,” and we thus affirmed the district court’s grant of habeas corpus. Id. at 668. I would do the same here.
In its attempt to distinguish this case from Meyers, the majority writes that, in Meyers, “during the sentencing hearing and in the presence of the prosecutor and the judge, counsel informed defendant that he muid be eligible for parole. Neither the district attorney not the judge challenged that statement, even though defendant was pleading guilty to second degree murder, which, under Pennsylvania law, carried a mandatory life sentence.” Majority at 306 (emphasis in original).
I see no distinction at all. As every defense attorney and trial judge knows, although the trial is stressful upon the defendant, there is no moment more critical, confusing,, and hence stressful, than when a person is losing his or her freedom — in this case — forever. That is why we require nothing less than complete, precise, explanatory colloquies. It is a time when the court and counsel must move slowly and carefully, mindful that they are dealing with a simpler soul, unsophisticated, unlearned in the law, and under great tension. Nonetheless, in just such a milieu, in the presence of the judge and the district attorney, defense counsel clearly stated in response to Scarbrough’s concerns, that Scarbrough “is eligible for *310parole.” (T.T. 87). The judge’s statement that, “that’s up to the Department of Probation and Parole,” simply confuses the issue further. Even I am confused by this colloquy, and cannot imagine how the petitioner could know what would lie ahead for him. There is no question in my mind that both Meyers and Scarbrough were denied their constitutional right to effective assistance of counsel during plea negotiations, receiving instead clearly erroneous information regarding the availability of parole, and that this ineffective assistance induced them to plead guilty to a crime they otherwise likely would not have. I see no valid legal grounds upon which to distinguish this case from Meyers.
In conclusion, I believe that the Magistrate’s Report, adopted by the District Court, was correct in concluding that:
The record demonstrates that at the time the plea was entered, the petitioner clearly set forth his misgivings about his eligibility for parole and was repeatedly assured by his counsel, the District Attorney and the Court that he would be eligible for parole and that this information was clearly erroneous. For this reason, it would appear that the petitioner’s plea was not knowingly and intelligently entered with the effective assistance of counsel, was entered in contravention of clearly established federal law and that his conviction represents an unreasonable application of federal law.
Magistrates Report, p. 8 (citing Meyers, 142 F.3d at 667).
I would affirm the District Court’s grant of Scarbrough’s petition for habeas corpus.