March 27, 1995 United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit
No. 94-1710
MARTIN CAREY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
ERRATA SHEET ERRATA SHEET
Please make the following changes to the opinion issued on March 22, 1995:
Page 2, line 1 - change "18 U.S.C." to "28 U.S.C."
Page 15, line 2 - change "18 U.S.C." to "28 U.S.C."
United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Judith Mizner with whom Marshall A. Stern was on brief for
appellant. Margaret D. McGaughey, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney and Richard W. Murphy,
Assistant United States Attorney, were on brief for appellee.
March 22, 1995
STAHL, Circuit Judge. Pursuant to 28 U.S.C. STAHL, Circuit Judge.
2255, petitioner Martin Carey ("Carey") moved to (1) vacate
his guilty plea on the ground that he was taking prescription
drugs at the time of his change of plea, and (2) set aside
his sentence because of claimed ineffective assistance of
counsel. A magistrate judge recommended denial of Carey's
motion and, following de novo review, the district court
agreed. We affirm. We discuss separately the two issues and
the facts giving rise to them.
DISCUSSION DISCUSSION
A. Voluntariness of Plea
1. Relevant Facts
On August 2, 1990, Carey initially appeared and
pled not guilty to a one-count indictment charging
manufacture of marijuana. He was released on bail. On
October 18, 1990, Carey and the government entered into a
written agreement under which he would enter a plea of guilty
conditioned on his right to appeal a previously denied motion
to suppress.
On the same day, Carey and his retained counsel,
Pasquale Perrino, appeared for the change-of-plea hearing.
In a handwritten affidavit appended to his habeas motion,
Carey states that, "[a]t the time I entered my change of
plea, I was taking prescription drugs" to help deal with
depression arising from the recent deaths of my daughter and
-2- 2
father. Carey further states that: "I believe that these
medications affected my judgment," and that, "[w]ithout them,
I do not believe that I would have decided to change my plea
at that time." Carey notes that, because of a drug test
administered in August 1990, "pretrial services was aware
that I was taking these medications." During the plea
colloquy, the district court did not ask Carey about use of
prescription medications.
2. Discussion
Summary dismissal of a 2255 petition is
appropriate if it plainly appears from the face of the motion
that the movant is not entitled to relief. Rule 4(b) of the
Rules Governing 2255 Proceedings. While genuine issues of
material fact may not be resolved without a hearing, a
hearing is not required where a habeas motion (1) is
inadequate on its face, or (2) although facially adequate, is
conclusively refuted as to the alleged facts by the files and
records of the case. United States v. DiCarlo, 575 F.2d 952,
954 (1st Cir.), cert. denied, 439 U.S. 834 (1978). The court
must take the allegations contained in the petitioner's
motion as true, except to the extent that "they are
contradicted by the record or are inherently incredible, and
to the extent that they are merely conclusions rather than
statements of fact." Mack v. United States, 635 F.2d 20, 26-
27 (1st Cir. 1980).
-3- 3
"[T]he strictures of Rule 11 of the Federal Rules
of Criminal Procedure . . . are calculated to insure the
voluntary and intelligent character of the plea." United
States v. Parra-Ibanez, 936 F.2d 588, 590 (1st Cir. 1991). A
plea will be set aside if a violation of the rule implicates
one of its "core concerns," United States v. Allard, 926 F.2d
1237, 1244 (1st Cir. 1991), but variances not affecting
substantial rights constitute harmless error, Fed. R. Crim.
Proc. 11(h). We have never stated that the voluntariness
requirement, indisputably a "core concern," see, e.g., United
States v. Cotal-Crespo, No. 94-1354, slip op. at 7 (1st Cir.
Jan. 30, 1995), compels the district court to ask a defendant
about prescription drug use, see Parra-Ibanez, 936 F.2d at
595. Nonetheless, many judges routinely inquire about
alcohol or drug use during the Rule 11 colloquy. We have
made clear that voluntariness does require that, once the
court
"has been informed that the defendant has recently ingested drugs or other substances capable of impairing his ability to make a knowing and intelligent waiver of his constitutional rights", . . . [it] must broaden its Rule 11 inquiry with a view to assessing the impact of the ingested substances on the defendant's capacity to understand the change-of-plea process and intelligently determine a proper course of action.
-4- 4
Id. (quoting United States v. Cole, 813 F.2d 43, 46 (3d Cir.
1987)).
Although the district court did not ask Carey
directly about prescription drug use, our review of the
transcript reveals nothing that even arguably suggests that
the defendant was not in complete command of his faculties.
Cf. United States v. Pellerito, 878 F.2d 1535, 1542 (1st
Cir. 1989) (mere fact defendant ingested potentially mood-
altering medication insufficient to vitiate plea; there must
be some evidence that the medication affected his
rationality), cert. denied, 502 U.S. 862 (1991). Indeed, at
one point Carey sought to correct the court's
characterization of the plea. ("Q. Do you acknowledge you
are in fact guilty as charged in this indictment? A.
Conditionally, yes sir.")
Nor do we agree with Carey that the court was put
on constructive notice because pretrial services had the
August 1990 drug-test results. As we have frequently
observed, the district court is a busy place, see, e.g.,
United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990),
and the Rule 11 strictures certainly do not diminish a
judge's burdens, see, e.g., United States v. Medina-Silverio,
30 F.3d 1, 3 (1st Cir. 1994). In this instance, we believe
the protections in the Rule are sufficient without requiring
a judge to search out all possibly relevant information
-5- 5
contained in every government agency's files. The district
court properly denied Carey's voluntariness claim. Assuming
the facts in Carey's allegations as true, we nonetheless
conclude that he is not entitled to relief, and his motion to
vacate fails.
-6- 6
B. Ineffective Assistance of Counsel
Carey premises his ineffective-assistance-of-
counsel claim on the government's refusal to move for a
downward departure pursuant to U.S.S.G. 5K1.11 for
substantial assistance and the government's opposition to a
downward adjustment for acceptance of responsibility pursuant
to U.S.S.G. 3E1.1. We find his arguments unpersuasive.2
On an unspecified date following the change-of-plea
hearing, Carey and Perrino traveled to Portland, Maine, for a
debriefing by the U.S. Drug Enforcement Administration
("DEA"). At this time, Perrino (Carey's counsel) also
represented Joe Darling ("Darling"), who faced state charges
relating to the same marijuana-growing operation that led to
Carey's federal charges. On the way to Portland, Carey
claims Perrino told him to "tell the government everything
[he knew] but that there was no reason to mention Mr. Darling
1. U.S.S.G 5K1.1 in relevant part states:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
2. The magistrate's report considered Carey's ineffective- assistance-of-counsel claim in the context of vacating his guilty plea rather than sentencing. As we discuss below, Carey's motion alleges that ineffective assistance of counsel affected his sentencing and not his entry of plea.
-7- 7
at all." Carey did not mention Darling at that debriefing.
Several weeks later, at a second debriefing session with DEA
immediately prior to his sentencing hearing, Carey did
discuss Darling. Carey contends that Perrino's conflict of
interest led to his initial failure to disclose Darling's
involvement, which in turn led to both the government's
refusal to file a motion pursuant to Section 5K1.1 and to the
government's opposition to a downward adjustment for
acceptance of responsibility.
The district court conducted Carey's sentencing
hearing on January 25, 1991. The presentence investigator
appended to his report a memorandum entitled "Acceptance of
Responsibility," which described an investigation undertaken
by state authorities of a separate marijuana-growing
operation. According to the memorandum, Carey actively
participated in this operation, which took place over a
period of about six weeks during the late summer and early
fall of 1990 (that is, following his initial appearance but
prior to his change-of-plea hearing). Darling was also
involved in this operation. As to cooperation, the
prosecutor stated at the sentencing hearing that the
information Carey had provided to date was not significant,
but that Carey pledged his future cooperation. The
government did not file a section 5K1.1 motion. During his
allocution, Carey stated, among other things, that "[t]here
-8- 8
are no victims who will suffer long-term effects from this
crime except my family." The court concluded that, based on
Carey's post-charge conduct and his statement that there was
no long-term victim from the crime, Carey "has not truly
accepted responsibility for his conduct in this case, and
that his effort at the ninth hour . . . to cooperate with the
government, is not capable of sufficient evaluation for the
court to overcome the conclusion that is thereby yielded."
To establish an ineffective-assistance-of-counsel
claim, a defendant must demonstrate (1) that counsel fell
below the applicable standard for performance, and (2) that
prejudice resulted. See, e.g., United States v. Fisher, 3
F.3d 456, 463 (1st Cir. 1993) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Carey argues that
prejudice per se exists. Prejudice is legally presumed if
"the defendant demonstrates that counsel `actively
represented conflicting interests' and that `an actual
conflict of interest adversely affected his lawyer's
performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler
v. Sullivan, 446 U.S. 335, 349-50 (1980)). The conflict of
interest must be actual or "real." United States v. Fahey,
769 F.2d 829, 834 (1st Cir. 1985). To establish an actual
conflict of interest, the defendant must show (1) the lawyer
could have pursued a plausible alternative defense strategy
-9- 9
or tactic, and (2) the alternative strategy or tactic was
inherently in conflict with, or not undertaken, due to the
attorney's other interests or loyalties. United States v.
Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994). On this
point, Carey's claim fails.
Carey's theory rests on a single factual
allegation: that Perrino told Carey not to mention Darling in
his initial debriefing. Carey argues that an actual conflict
is "clear" because his best interests required "telling the
government everything he knew about anybody or anyone,
including Joseph Darling, at the outset" and, further, that
defense counsel could have offered to have Carey testify
against Darling. We think that the single fact of Perrino's
statement is insufficient to establish that the counselled
course of action was either "inherently in conflict or not
undertaken due to" Perrino's other loyalties. Id. In fact,
Carey's best interests could have dictated precisely the
course suggested by Perrino. For example, inasmuch as state
authorities already knew of Darling's activities, any proffer
by Carey would be unlikely to impress his debriefers but
could potentially antagonize Darling into divulging more
about Carey. Furthermore, because both Carey and Darling
were involved in the post-appearance growing operation, it
might well have been in Carey's interest to have heeded
Perrino's advice. To be sure, all this is speculation, but
-10- 10
so is Carey's conclusory suggestion that Perrino breached his
duty of loyalty. Carey must show more. In actual-conflict
cases, we have repeatedly stated that the defendant must
demonstrate that the alleged conflict is more than "some
attenuated hypothesis having little consequence to the
adequacy of representation." Brien v. United States, 695
F.2d 10, 15 (1st Cir. 1982) (citing United States v.
Martorano, 620 F.2d 912, 916 (1st Cir. 1980)). Even when
accepted as true and read in its most friendly light, the
single factual allegation offered by Carey does not surpass
this hurdle. Accordingly, because no actual conflict of
interest existed, we conclude that prejudice cannot be
legally presumed.
One step remains in our analysis. Assuming that
Perrino's advice fell short of Strickland's first prong, we
still must determine whether prejudice in fact resulted. We
conclude that it did not. To establish prejudice, a
defendant must demonstrate that there was a reasonable
probability that, but for counsel's errors, the result in the
proceeding would have been different. Strickland, 466 U.S.
at 694. Prejudice incorporates more than outcome
determination; we also must determine whether "the result of
the proceeding was fundamentally unfair or unreliable."
Lockhart v. Fretwell, 113 S. Ct. 838, 842 (1993); see also
Scarpa v. Dubois, 38 F.3d 1, 12 (1st Cir. 1994), cert.
-11- 11
denied, 115 S. Ct. 940 (1995). We conclude that absent
Perrino's statement, the outcome in this case would be no
different. By its terms, section 5K1.1 vests in the
government full discretion to file a substantial-assistance
motion, subject to review only if the refusal to file was
based on an unconstitutional motive.3 Wade v. United
States, 112 S. Ct. 1840, 1843-44 (1992). The record allows
us to conclude with near certainty that, even if Carey had
discussed Darling at the initial debriefing, any information
about Darling would not have changed the government's
ultimate determination that Carey's assistance was "not
significant." At least three facts support this conclusion.
First, at the time of the initial debriefing, state
authorities already knew that Darling was involved with
drugs. Second, although Carey did freely discuss Darling at
his second debriefing, the government was apparently
unimpressed with whatever information Carey provided. Third,
in its response to Carey's objections to the magistrate's
report, the government makes clear that if Carey were ordered
to be resentenced, it would not move for a downward departure
because, at that point, "substantial assistance [could not]
be rendered and [could] never be rendered."
3. Carey did not enter into an agreement under which the government would be bound to seek a downward departure.
-12- 12
Finally, upon careful review of the record, we
detect no evidence even arguably suggesting that Carey's
sentencing was either unfair or unreliable. Accordingly, we
conclude that Carey suffered no prejudice and, thus, his
ineffective-assistance-of-counsel claim fails.
CONCLUSION CONCLUSION
For the foregoing reasons, the decision of the
district court is
affirmed. affirmed.
Dissent follows.
-13- 13
BOWNES, Senior Circuit Judge, dissenting in part: BOWNES, Senior Circuit Judge,
I fully agree that there was no error in the failure to hold
an evidentiary hearing on Carey's claim that the
voluntariness of his plea was compromised by his ingestion of
prescription medications prior to the change of plea hearing.
I disagree, however, that the district court permissibly
rejected Carey's conflict of interest claim without an
evidentiary hearing. For this reason, I respectfully dissent
from Part B of the majority opinion.
I. I.
At the outset, I think it important to state some
bedrock legal tenets. First, "the right to counsel is the
right to effective assistance of counsel." McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). Second, the right
to effective assistance of counsel is always denied where an
actual conflict of interest negatively affects a lawyer's
performance. See Cuyler v. Sullivan, 446 U.S. 335, 345-50
(1980). In other words, an actual conflict of interest is a
special breed of ineffective assistance which is never
harmless and is presumptively prejudicial. Id. at 349-50.
And third, the right to effective assistance of counsel
applies at the sentencing stage of a felony case. See Mempa
v. Rhay, 389 U.S. 128, 134 (1967).
I recognize that the standard by which
effectiveness ordinarily is judged may be more lax at the
-14- 14
sentencing stage of a noncapital case than it is at trial.
Cf. Strickland v. Washington, 466 U.S. 668, 686 (1984)
(leaving open the question whether Strickland's effectiveness
definition should apply to counsel's performance at "an
ordinary sentencing, which may involve informal proceedings
and standardless discretion in the sentencer, and hence may
require a different approach to the definition of
constitutionally effective assistance").4 There can be no
doubt, however, that a lawyer whose performance at sentencing
was compromised by an actual conflict of interest has not
rendered the client the effective assistance of counsel
mandated by the Constitution. See United States v. Swartz,
975 F.2d 1042, 1048 (4th Cir. 1992) (applying Cuyler at the
sentencing stage); United States v. Ziegenhagen, 890 F.2d
937, 939-41 (7th Cir. 1989) (same); see also United States v.
Green, 680 F.2d 183, 191-205 (D.C. Cir. 1982) (Bazelon, J.,
dissenting), cert. denied, 459 U.S. 1210 (1983).
II. II.
In light of the foregoing authority, it is clear
that the appropriate inquiry here simply is whether Carey's
4. Strickland, of course, predated the Sentencing
Guidelines. Federal sentencing proceedings today can hardly be described, in the words of Strickland, as either
"informal" or as governed by a sentencer with "standardless discretion." 466 U.S. at 686. It must also be noted that despite the above-quoted dictum, we have applied the Strickland effectiveness standard
at sentencing. See Carsetti v. Maine, 932 F.2d 1007, 1012-14
(1st Cir. 1991).
-15- 15
allegation is sufficient to state a claim that his lawyer had
an actual conflict of interest. As the majority concedes,
under 28 U.S.C. 2255, a petitioner is entitled to an
evidentiary hearing "[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief . . . ." Thus, a petition can be
dismissed without a hearing only if the petitioner's
allegations, if credited, would not entitle the petitioner to
relief, or "if the allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact."
United States v. Rodriguez Rodriguez, 929 F.2d 747, 751 (1st
Cir. 1991); see also Dziurgot, v. Luther, 897 F.2d 1222, 1225
(1st Cir. 1990); Mack v. United States, 635 F.2d 20, 26-27
(1st Cir. 1980).
Here, Carey's allegation that his lawyer told him
not to tell the government about Darling is not contradicted
by the record, inherently incredible, conclusory, or
unremediable. Moreover, if true, it might well be sufficient
to satisfy the two-pronged test for establishing an actual
conflict of interest: (1) that counsel "actively represented
conflicting interests"; and (2) that "an actual conflict of
interest adversely affected his lawyer's performance." See
-16- 16
Cuyler, 446 U.S. at 349-50.5 The majority speculates that
"Carey's best interests could have dictated precisely the
course suggested by Perrino." See opinion at 9 (emphasis
supplied). Perhaps, but we cannot know without an
evidentiary hearing at which Perrino could either deny the
allegation or explain his action. After all, the inference
that Carey would have us draw from his petition -- that
Perrino's advice was motivated by loyalty to Darling and
could well have harmed him at sentencing -- is just as
plausible as the majority's speculation. I think the law
required the district court to hold a hearing and to resolve
these questions.
III. III.
After concluding that Carey does not state an
actual conflict of counsel claim, the majority states that it
"still must determine whether prejudice in fact resulted."
See opinion at 10. It does not need to engage, and should
not have engaged, in this analysis. If, on the one hand,
Carey's allegation is insufficient to state an actual
conflict claim (as the majority holds), there is no viable
5. It should be borne in mind that Cuyler's "adversity"
requirement is not tantamount to a showing of harm or
prejudice; Cuyler makes very clear that a defendant
victimized by a lawyer with dual loyalties need not show harm or prejudice. Cuyler, 446 U.S. at 349-50. For this reason,
adversity must be construed as any action taken by a lawyer which was prompted by the lawyer's loyalty to some other partyand which was not in the complaining client's interest.
-17- 17
claim of ineffective assistance of counsel, and the prejudice
analysis is entirely superfluous. If, on the other, Carey's
allegation is sufficient to state an actual conflict claim
(as I maintain), the prejudice analysis is patently improper.
The majority in Cuyler could not have been clearer: "[A]
defendant who shows that a conflict of interest actually
affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief." 446 U.S.
at 349-50.
IV. IV.
Even were I to ignore Cuyler and deem Carey's claim
as being properly subject to a prejudice analysis, I could
not agree that there was no prejudice here. Hoisting Carey
by the petard of an assertion Cuyler did not require him to
make, the majority confines its prejudice inquiry to the harm
emphasized by Carey in his motion (that his failure to talk
about Darling at the initial debriefing resulted in the
absence of a 5K1.1 motion at his sentencing) and determines
"with near certainty that, even if Carey had discussed
Darling at the initial debriefing, any information about
Darling would not have changed the government's ultimate
determination that Carey's assistance was `not significant.'"
See opinion at 11.
I have two problems with this determination.
First, I am loath to decide what the government would or
-18- 18
would not have done in this case without sworn testimony
tested by adversarial questioning. And more importantly,
even if I could conclude that Carey would not have received a
5K1.1 motion at his initial sentencing, I cannot say that
Carey was not harmed in some other way if his lawyer was
disloyal. In this vein, I point out that Carey could come
out of a second sentencing with a lower sentence than the one
he currently is serving. Carey's guideline range was 97-121
months, and he received a sentence of 109 months. Thus,
regardless of whether there was a 5K1.1 motion, if the
district court found that Carey had received ineffective
assistance of counsel in connection with his first
sentencing, it would in no way be engaging in an empty
exercise by setting Carey's sentence aside and ordering a
second sentencing hearing. It is not at all far-fetched to
assume that a lawyer completely loyal to Carey might be able
to persuade the judge to sentence him at the lower end of the
appropriate guideline range.
The majority concludes its prejudice analysis by
stating that it does not "detect any evidence even arguably
suggesting that Carey's sentencing was either unfair or
unreliable." Id. at 11. While I don't disagree with this
statement, I hardly find it surprising; there was no
evidentiary hearing at which such evidence might have been
developed. That is the main point of my dissent.
-19- 19
V. V.
Binding Supreme Court and Circuit precedent
prohibited the district court from rejecting Carey's conflict
of interest claim without an evidentiary hearing. I
therefore dissent from Part B of the majority opinion, which
affirms the denial of Carey's claim without a hearing.
-20- 20