Bemis v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 25, 1994
• Docket: 93-2387
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                
                                 ____________________
         
        No. 93-2387 

                                   GREGG M. BEMIS,

                                Petitioner, Appellant,
               
                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

                                 ___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

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            Gregg M. Bemis on brief pro se.
            ______________
            Donald  K.  Stern,  United  States  Attorney,  and  Annette Forde,
            _________________                                   _____________
        Assistant United States Attorney, on brief for appellee.

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                                    July 22, 1994
                                 ____________________

SELYA, Circuit  Judge.   Petitioner Gregg  Bemis appeals
                        ______________

            pro se  from the summary  dismissal of his motion  to vacate,

            set  aside, or correct  his sentence under 28 U.S.C.    2255.

            The  centerpiece of  his  petition  is  the  allegation  that

            government prosecutors  have reneged  on a  promise, made  as

            part  of his  1984 plea  agreement,  to secure  (or at  least

            recommend)  his entry  into  the  Federal Witness  Protection

            Program  (FWPP) upon  his  release from  prison.   From  this

            premise,  petitioner  advances a  number  of  claims--most of

            which  are  no longer  zoetic  and,  therefore,  need not  be

            described at any length.  In particular,  to the extent he is

            seeking release  on his  state  sentence, that  claim is  now

            moot.   To  the extent  he  is seeking  damages for  wrongful

            imprisonment,  that claim has been explicitly withdrawn.  And

            to the extent  he is challenging (for reasons  that are never

            explained) the term of probation imposed in  1991, that claim

            has received  no developed argumentation on appeal and so has

            been implicitly waived.   See, e.g., Ryan v.  Royal Ins. Co.,
                                      ___  ____  ____     ______________

            916 F.2d  731, 734 (1st Cir.  1990).  The dismissal  of these

            various claims is therefore affirmed.

                 Petitioner's   central   claim--that   the  government's

            failure  to  fulfill  its   alleged  promise  regarding  FWPP

            participation constitutes a due process violation--is another

            matter.  "[W]hen a  plea rests in any significant degree on a

            promise or  agreement of  the prosecutor, so  that it  can be

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said  to be  part of  the  inducement or  consideration, such

            promise must be fulfilled."  Santobello v. New York, 404 U.S.
                                         __________    ________

            257,   262  (1971).     Contrary  to  the   district  court's

            jurisdictional ruling, we believe that habeas corpus provides

            an  appropriate procedural vehicle for advancing a Santobello
                                                               __________

            claim.  See,  e.g., Kingsley v. United States,  968 F.2d 109,
                    ___   ____  ________    _____________

            111 (1st Cir.  1992) (action under   2255  alleging breach of

            plea agreement).  

                 The  government  suggests that,  if the  U.S. Attorney's

            Office in fact made any promise regarding FWPP participation,

            such a representation would have been ultra vires, see, e.g.,
                                                  ___________  ___  ____

            Doe  v. Civiletti, 635  F.2d 88, 90  (2d Cir. 1980),  and for
            ___     _________

            that  reason unenforceable.    Yet "[a]  plea  induced by  an

            unfulfillable  promise is no  less subject to  challenge than

            one induced by  a valid promise  which the Government  simply

            fails to fulfill."  United States  v. Cook, 668 F.2d 317, 320
                                _____________     ____

            (7th  Cir. 1982);  accord, e.g.,  Mabry v. Johnson,  467 U.S.
                               ______  ____   _____    _______

            504,  509 (1984)  (plea  induced by  "unfulfillable promises"

            subject  to challenge); Correale  v. United States,  479 F.2d
                                    ________     _____________

            944,  946-47  (1st  Cir.  1973)  (plea  rendered  involuntary

            because of failure to carry out promise that was  "impossible

            of fulfillment").  The government's argument instead pertains

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to the appropriate  form of remedy--a matter that  we have no

            occasion here to address.1

                 As a result,  "the crucial question  is not whether  the

            Government had the  authority to carry out  the promise which

            [petitioner] claims he understood it to make, but  whether it

            did in fact  make such a  promise."  Cook,  668 F.2d at  320.
                                                 ____

            Petitioner advances a colorable claim  in the sense that,  on

            appeal,  he  has  submitted two  affidavits  from  the former

            prosecutors   in   his  case   that   strongly   support  his

            allegations.2   He nonetheless has two strikes against him in

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            1.  We  do note  that courts  on  occasion have  specifically
            enforced  promises that would encroach on the jurisdiction of
            independent entities.  See, e.g., Palermo v. Warden, 545 F.2d
                                   ___  ____  _______    ______
            286, 296 (2d Cir.  1976) (enforcing promise of early  parole,
            in face  of contrary decision  of Parole Board,  and ordering
            defendant's release  as "the  only meaningful  relief in  the
            context of this case"), cert. dismissed, 431 U.S. 911 (1977);
                                    _______________
            see generally 2  W. LaFave & J. Israel,  Criminal Procedure  
            _____________                            __________________
            20.2,  at 600-01  (1984).   We also  note the  rather obvious
            point  that, should  a  breach  of promise  be  found in  the
            instant case, the appropriate form  of remedy will depend  on
            the nature  of that  promise.  See,  e.g., Geisser  v. United
                                           ___   ____  _______     ______
            States, 513  F.2d 862, 869,  872 (5th Cir. 1975)  (promise by
            ______
            Department of  Justice,  which district  court  construed  as
            assurance   that  petitioner   would  not   be  deported   to
            Switzerland, is interpreted by appeals court as pledge to use
            its "best efforts" to persuade State Department not to do so;
            as so construed, promise is specifically enforced).

            2.  The  government,  while  protesting  that  such  evidence
            should not  be considered,  has responded  by submitting  the
            transcript of the Rule 11  hearing and a copy of  the written
            plea agreement.   We  think it  appropriate to  consider such
            materials, inasmuch as the district court summarily dismissed
            the  pro  se  petition  here  sua  sponte  without  affording
                                          ___________
            petitioner   the  opportunity  to  amend.    Cf.  Johnson  v.
                                                         ___  _______
            Rodriguez, 943 F.2d 104, 108 n.3 (1st Cir. 1991) (agreeing to
            _________
            consider  claim not raised  below under  such circumstances),
            cert. denied,  112 S.  Ct. 948 (1992);  Lesko v.  Lehman, 925
            ____________                            _____     ______

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this  regard.  First,  the written plea  agreement (signed by

            petitioner, his counsel,  and the U.S. Attorney)  contains no

            reference to  the FWPP,  and declares  that "[n]o  additional

            promises,  agreements or  conditions  have been  entered into

            other  than as  set forth  in this  letter and  none will  be

            entered into unless  in writing and  signed by all  parties."

            Second, at  the  Rule 11  hearing,  the district  court  read

            portions  of the  plea  agreement into  the  record and  then

            inquired of petitioner: "Except for what is contained in that

            agreement, has anyone made any  promises to you to induce you

            to plead guilty?"  Petitioner, while under oath, responded in

            the negative.   No mention of the  FWPP was made at  any time

            during this hearing.  

                 Given  these  circumstances,   petitioner's  attempt  to

            establish that an additional promise  was made as part of the

            inducement for his plea faces daunting hurdles.   A defendant

            is ordinarily  bound by his  or her representations  in court

            disclaiming the existence of additional promises.  See, e.g.,
                                                               ___  ____

            Baker v.  United States, 781  F.2d 85, 90 (6th  Cir.) ("where
            _____     _____________

            Rule 11  procedures were fully adequate, absent extraordinary

            circumstances, or some  explanation of why defendant  did not

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            F.2d 1527, 1538 n.8 (3d  Cir.) (noting that appeals court had
            directed  petitioner  to  file affidavit  from  his  attorney
            detailing  plea negotiations), cert.  denied, 112 S.  Ct. 273
                                           _____________
            (1991).  It makes no difference in any event, since  a remand
            would be warranted  even if we confined our  attention to the
            allegations  in   the  petition,  disregarding   both  sides'
            additional proffers.   

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                                          5

reveal other terms, at least when specifically asked to do so

            by the  court, a defendant's  plea agreement consists  of the

            terms revealed  in open court"), cert. denied,  479 U.S. 1017
                                             ____________

            (1986); Barnes v. United States,  579 F.2d 364, 366 (5th Cir.
                    ______    _____________

            1978)   ("Where,  from   the   transcript,  the   plea-taking

            procedures are clear  and regular on their face, a petitioner

            asserting the existence of a  bargain outside the record  and

            contrary  to his  own  statements under  oath  bears a  heavy

            burden.");  see also  United States  v.  Pellerito, 878  F.2d
                        ________  _____________      _________

            1535, 1539 (1st  Cir. 1989) (defendant cannot "turn  his back

            on his  own representations  to the  court merely  because it

            would suit his convenience to do so").  Likewise, the use  of

            parol  evidence to  supplement the  terms  of an  unambiguous

            written plea agreement is ordinarily frowned upon, especially

            where that  agreement disclaims  the existence  of additional

            promises.  See, e.g., United States v. Ingram, 979 F.2d 1179,
                       ___  ____  _____________    ______

            1184 (7th Cir.  1992), cert. denied, 113 S.  Ct. 1616 (1993);
                                   ____________

            United  States  v. Gamble,  917  F.2d 1280,  1282  (10th Cir.
            ______________     ______

            1990);  Hartman v.  Blankenship, 825  F.2d  26, 29  (4th Cir.
                    _______     ___________

            1987); see  also United  States v. Hogan,  862 F.2d  386, 388
                   _________ ______________    _____

            (1st Cir. 1988) (fact that plea agreement disclaims existence

            of other promises  "militate[s] strongly" against defendant's

            assertion to contrary).

                 Yet  each  of these  rules  is subject  to  exception in

            unusual cases.  In Blackledge v. Allison, 431 U.S. 63 (1977),
                               __________    _______

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the  Court stated  that no  "per  se rule"  could be  adopted
                                         _______

            "excluding all possibility that a defendant's representations

            at  the time his  guilty plea was  accepted were  so much the

            product  of  such  factors  as  misunderstanding,  duress, or

            misrepresentation  by others  as  to  make  the  guilty  plea

            [unlawful]."  Id. at 75; see, e.g., Gamble, 917  F.2d at 1282
                          ___        ___  ____  ______

            & n.1 (noting  that case did not "come  within any Blackledge
                                                               __________

            exception");  United States v.  Hammerman, 528 F.2d  326, 331
                          _____________     _________

            (4th  Cir.  1975) (defendant's  oral disavowal  of additional

            promises    cannot   be    "considered   conclusive"    under

            circumstances).   Referring to  the parol evidence  rule, the

            Blackledge  Court explicitly noted that a written contractual
            __________

            provision disclaiming  the existence of  additional promises,

            while deserving of "great weight," does not "conclusively bar

            subsequent proof  that such  additional agreements  exist and

            should be  given force."  431  U.S. at 75 n.6;  accord, e.g.,
                                                            ______  ____

            Kingsley 968  F.2d at  115 (explaining  that "parol  evidence
            ________

            rule  is not rigidly  applied in construing  plea agreements"

            because   contract  issues   that   are  involved   implicate

            "constitutional  rights as  well  as  concern  for  the  fair

            administration of justice") (quoting United States v. Garcia,
                                                 _____________    ______

            956 F.2d 41, 43-44 (4th Cir. 1992)) (internal quotation marks

            omitted).3

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            3.  We acknowledge that  the Blackledge holding was  based in
                                         __________
            part on the  sparse record of the  change-of-plea hearing and
            the  "ambiguous status of  the process of  plea bargaining at

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For  several reasons,  we are  unwilling prematurely  to

            foreclose  the possibility  that the  instant  case might  be

            sufficiently unusual to call for an exception to these rules.

            First,  petitioner  alleges  that both  his  counsel  and the

            government prosecutor advised  him that the FWPP  promise was

            an "administrative matter" that did not need to appear in the

            plea agreement or  be mentioned in court.   Second, he claims

            that, to  the extent this  advice was erroneous,  his counsel

            provided  ineffective   assistance.     Third,  despite   the

            provision in the  plea agreement requiring any  amendments to

            be in  writing, the record  indicates that the  agreement was

            later modified (to provide for the dismissal of three counts)

            without such written documentation.  Fourth, petitioner could

            not have been expected to  object, at the Rule 11 hearing  or

            at sentencing, to  the alleged breach of promise, inasmuch as

            any  such breach occurred  only years later.   Compare, e.g.,
                                                           _______  ____

            Baker,  781 F.2d  at  90  ("It is  significant  that ...  the
            _____

            alleged promise was broken, if at all, right before defendant

            and  in open  court.").   Fifth,  the district  court, having

            summarily dismissed  on jurisdictional  grounds, has not  had

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            the time the  guilty plea  was made."   431 U.S.  at 76;  see
                                                                      ___
            Baker,  781 F.2d  at 89  (distinguishing  Blackledge on  this
            _____                                     __________
            basis).   Nonetheless, it cannot  be said that the  advent of
            modern Rule 11  procedures has  robbed that  decision of  all
            currency.   See,  e.g., 2  W.  LaFave &  J. Israel,  Criminal
                        ___   ____                               ________
            Procedure   20.5,  at 668 (1984) (even where  Rule 11 hearing
            _________
            was flawless, there  are still "some circumstances"  in which
            an  evidentiary hearing may  be required) (internal citations
            and quotation marks omitted). 

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the opportunity to consider this  issue.  And finally, on the

            limited record before  us--keeping in  mind, especially,  the

            prosecutors' affidavits  (which  the district  court did  not

            have the benefit of reading) and the fact that petitioner was

            placed in a security program while in prison-- the allegation

            that he was  promised protection cannot  be dismissed out  of

            hand  as fanciful.   While it  is unlikely that  any of these

            factors, standing  alone, would  warrant a  remand, we  think

            that they  are sufficient  in combination  to render  further

            proceedings appropriate.   

                 We  need go  no further.4  For the  reasons stated,  the

            judgment  of the  district  court  is  affirmed in  part  and

            reversed  in  part, and  the  case  is remanded  for  further

            proceedings.

                 It is so ordered.
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            4.  We note that the district court has  appointed counsel in
            a related  action recently  filed  by petitioner.   Bemis  v.
                                                                _____
            Pappalardo, No. 94-10151 (D. Mass.).  Whether the two actions
            __________
            ought to  be consolidated,  and whether  counsel ought  to be
            appointed in the instant case,  are matters we entrust to the
            district court's  discretion.  Cf.  United States v.  Mala, 7
                                           ___  _____________     ____
            F.3d 1058, 1064  n.7 (1st Cir. 1993) (noting  that "selection
            of  appointed counsel is a  matter best left  to the court in
            which such counsel  is to appear"), cert. denied,  114 S. Ct.
                                                ____________
            1839 (1994).

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