Clemente v. United States

Opinion

USCA1 Opinion

December 12, 1994     [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 94-1155

GERALD W. CLEMENTE,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Gerald W. Clemente on brief pro se.
               __________________
               Donald  K.  Stern,  United  States  Attorney, and  Alexandra
               _________________                                  _________
          Leake, Assistant U.S. Attorney, on brief for appellee.
          _____

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__________________

Per  Curiam.      George W.  Clemente  appeals  the
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            summary  denial  of his    2255  motion  for relief  from the

            sentence imposed upon his guilty plea.  We affirm.

                      Clemente  is  a   former  police  captain   in  the

            Metropolitan District Commission Police.   In April, 1986, he

            admitted  to masterminding  a long-standing  scheme to  steal

            advance copies of civil service examinations and sell them to

            policemen  around the state  so they  could cheat  and obtain

            fraudulent  promotions.   Pursuant  to  a  plea bargain  with

            federal and  state prosecutors, Clemente  agreed to cooperate

            with  the  authorities in  exchange  for various  concessions

            relating to pending and future charges, and the conditions of

            his  confinement.   As  part  of the  bargain,  Clemente pled

            guilty  to a single count of racketeering in violation of the

            Racketeer Influenced and Corrupt Organizations Act (RICO), 18

            U.S.C.     1962.    The  crime  carried  a  maximum  possible

            imprisonment penalty of twenty years.  

                       The  government  agreed   to  recommend,  and  did

            recommend, imposition  of a twenty-year sentence  on the RICO

            charge  to  run  concurrently  with a  state  sentence  which

            Clemente was already serving for  an unrelated theft from the

            Depositors Trust  Company in Malden.  The  district court did

            not choose to follow  the government's recommendation in this

            regard, however,  instead sentencing Clemente  to a  fifteen-

            year  term for his federal crime, to begin upon completion of

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the state sentence.           This   is   Clemente's    third

            assault  in  federal  court  on the  consecutiveness  of  his

            sentence.    In  a  direct  appeal  from  imposition  of  the

            sentence,  he argued  that the  government breached  the plea

            agreement by  failing to repeat the  recommendation orally at

            the sentencing hearing.  Finding no breach of  the agreement,

            "either in  its letter  or spirit,"  this court affirmed  the

            sentence.  United  States v.  Doherty, 867 F.2d  47, 72  (1st
                       ______________     _______

            Cir.), cert. denied, 492 U.S. 918 (1989).
                   ____________

                      Shortly  thereafter, Clemente moved in the district

            court for a reduction of the  sentence under Fed. R. Crim. P.

            35(b), arguing that its effect was to unfairly require him to

            serve  a  minimum of  thirty  years in  state  custody before

            commencing his federal term.   The government again joined in

            urging  the  court  to  revise  Clemente's  sentence  to  run

            concurrently  with the  state  sentence.   In an  independent

            review, the  court found  Clemente's argument "to  be utterly

            without substance."   United States v. Clemente, 729 F. Supp.
                                  _____________    ________

            165, 167 (D.  Mass. 1990).   In reaching  this decision,  the

            court clearly  explained its  reasoning under  the sentencing

            laws  applicable to Clemente's terms of imprisonment. 

                 Under his state sentence, Clemente  is eligible for
                 parole after  serving one-third of his minimum term
                 of confinement.   He  presently has a  state parole
                 eligibility date  of December  7, 1995.   Under the
                 law in  effect at the  time this Court  imposed its
                 federal  sentence  on  Clemente,  he   will  become
                 eligible  for parole after serving one-third of his
                 federal sentence, in this case  five years.  Even a

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twenty year concurrent federal sentence (it will be
                 remembered  that  this  Court  imposed  a  15  year
                 sentence upon Mr. Clemente) would place his federal
                 release  date sometime  before  December  7,  1995,
                 resulting in  no time whatsoever  being served  for
                 the extraordinarily serious racketeering offense of
                 which he has been convicted.

            Id.   Then,  after carefully revisiting the equities  and the
            ___

            law  and,   though  not  required  to,   consulting  the  new

            sentencing guidelines  for purposes of comparison,  the court

            again concluded that the  sentence imposed was just.   Id. at
                                                                   ___

            170.  Clemente did not appeal.

                       Presumably spurred  by the approach  of his  state

            parole eligibility date, Clemente now collaterally renews his

            quest  for  a  concurrent   sentence  with  an  argument  not

            previously  urged.   He  now  argues  that the  prosecution's

            promise  to  recommend  imposition of  a  concurrent  federal

            sentence was void ab initio, because the sentencing court did
                              __ ______

            not have the  "power" to impose such a sentence under the law

            applicable to  his  crime.   For  crimes committed  prior  to

            November 1,  1987, there is no formal mechanism for providing

            that a federal sentence  will be served concurrently  with an

            existing state sentence.1   Generally, a sentencing court may

            achieve this  result only  by "recommending" to  the Attorney

            General that the Bureau of Prisons designate the state prison

                                
            ____________________

            1.  For offenses committed after  November 1, 1987, 18 U.S.C.
              3584(a) (1984), now expressly authorizes the district court
            to impose concurrent sentences.  See H.R. Rep. No. 1030, 98th
                                             ___
            Cong.  2d Sess. 126-27, reprinted  in 1984 U.S.  Code Cong. &
                                    _____________
            Ad. News 3309-10 [House Report]. 

                                         -5-



as  the  place  of confinement  for  service  of the  federal

            sentence.   See 18 U.S.C.   4082(b) (1982)2; James B. Eaglin,
                        ___

            Sentencing  Federal  Offenders  for Crimes  Committed  Before
            _____________________________________________________________

            November  1,  1987  at  6-7 (Federal  Judicial  Center  1991)
            __________________

            [Eaglin,  Sentencing].   In the  absence of  a recommendation
                      __________

            from the district court, however, the sentence will be served

            in a  federal prison  and automatically run  consecutively to

            the  unexpired   state  sentence.    See   United  States  v.
                                                 ___   ______________

            Pungitore, 910  F.2d 1084, 1119 (3d Cir. 1990), cert. denied,
            _________                                       ____________

            500 U.S. 915 (1991); Eaglin, Sentencing at 7.3 
                                         __________

                      In Clemente's view,  this legal anomaly  brings his

            case  within a principle we have long recognized: that a plea

            agreement will  be set  aside  if induced  by a  prosecutor's

                                
            ____________________

            2.  As applied to crimes committed prior to November 1, 1987,
               4082(a),  has been  construed  to mean  that  the Attorney
            General  has the  sole  authority to  designate the  place of
            confinement.   See, e.g., United States v. Williams, 651 F.2d
                           _________  _____________    ________
            644, 647 (9th  Cir. 1981);  United States v.  Naas, 755  F.2d
                                        _____________     ____
            1133, 1137 (5th Cir.  1985); United States v. Huss,  520 F.2d
                                         _____________    ____
            598  (2d Cir. 1975); United  States v. Janiec,  505 F.2d 983,
                                 ______________    ______
            987-88  (3d Cir.  1974), cert. denied,  420 U.S.  948 (1975);
                                     ____________
            United States v.  Herb, 436  F.2d 566, 567  (6th Cir.  1971).
            _____________     ____
            This authority was delegated  to the Bureau of Prisons  in 28
            C.F.R.    0.96.  Since 18 U.S.C.   3568 (1966) (repealed eff.
            Nov.  1, 1987)  prescribes  that a  sentence for  such crimes
            begins to run only when the person is "received" at the place
            of confinement,  designation of the state  prison was usually
            required  to  effect  concurrency  with  an  unexpired  state
            sentence.             

            3.  The  second  prong  of  Clemente's   argument,  that  the
            sentencing court was also  deprived of the power to  impose a
            consecutive sentence,  has been  rejected by the  majority of
            courts.  See  United States  v. Hardesty, 958  F.2d 910,  913
                     ___  _____________     ________
            (9th  Cir. 1992)  (citations);  Pungitore, 910  F.2d at  1119
                                            _________
            (same). 

                                         -6-



promise  to  recommend  a  sentence that  is  "impossible  of

            fulfillment,"  as  when  it  is "plainly  contrary  to  law."

            Correale v.  United States,  479 F.2d  944, 946-47  (1st Cir.
            ________     _____________

            1973) (following Brady v. United States, 397 U.S. 742 (1970),
                             _____    _____________

            and  Santobello v. New York,  404 U.S. 257  (1971)); see also
                 __________    ________                          ________

            Bemis v. United States,  30 F.3d 220 (1st Cir.  1994); United
            _____    _____________                                 ______

            States v. Kurkculer,  918 F.2d 295,  297-98 (1st Cir.  1990).
            ______    _________

            We have never gone so far as to say, however, that "minor and

            harmless slips" will void a plea bargain.  Correale, 479 F.2d
                                                       ________

            at 947;  see also United  States v. Tursi,  655 F.2d 26  (1st
                     ________ ______________    _____

            Cir. 1981).

                      We  do not  see  an error  here,  and certainly  no

            "plain" error.   Nothing in the  plea agreement required  the

            prosecutor  to  recommend  that the  district  court  achieve

            concurrency  by a particular means, let  alone an illegal, or

            nonexistent  mechanism.  Had the  court been persuaded by the

            prosecutor's  recommendation,  there  were   available  ample

            lawful means  for its fulfillment.  See Eaglin, Sentencing at
                                                ___         __________

            5-12 (flexible  sentencing options for crimes committed prior

            to November  1, 1987,  include shortened terms,  early parole

            eligibility,  suspended  sentences,  fines,  and  recommended

            concurrent  terms); see  also  House Report  at 37-141,  1984
                                _________

            U.S.C.C.A.N. 3220-324 (comparison with new  sentencing laws).

            Cooperation by other officials with a recommendation from the

            court  for  a  concurrent  term  is  the  norm,  see  Eaglin,
                                                             ___

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Sentencing at 6; Nass, 755 F.2d at 1135, 1137;  Williams, 651
            __________       ____                           ________

            F.2d at 647 n.2; Janiec,  505 F.2d at 988; Herb, 436  F.2d at
                             ______                    ____

            568; and there was no reason to doubt it in this case.   

                      The  availability of lawful means for achieving the

            recommended  result is  what  distinguishes  this  case  from

            Correale.     In  Correale,  the  prosecutor   recommended  a
            ________          ________

            mechanism for  effecting a concurrent sentence  that was both

            unlawful, (a minimum term greater than that  allowed by law),

            and illusory, because the state sentence was about to expire.

            Although aware of  the defect, the  sentencing court did  not

            afford  Correale an opportunity to withdraw his plea prior to

            imposing  a  term of  lawful  length  which did  not  achieve

            concurrency.  We decided that relief was required because, 

                 "It  is  the  defendant's  rights  that  are  being
                 violated when  the  plea  agreement  is  broken  or
                 meaningless.    It  is  his waiver  which  must  be
                 voluntary and  knowing.  He offers  that waiver not
                 in exchange  for the  actual sentence or  impact on
                 the judge,  but for the prosecutor's  statements in
                 court.   If they  are not  adequate, the  waiver is
                 ineffective." 

            Correale, 479 F.2d at 949.   
            ________

                      Clemente, however, got what  he bargained for.  The

            prosecution vigorously recommended a concurrent sentence at a

            time  when the existing state sentence had many years to run.

            The specific means for achieving concurrency was not broached

            by either party because,  after thoughtful consideration, the

            court  rejected the  recommendation for  lawful reasons  that

            were  well within its discretion.   Our cases  do not require

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relief from  a mistake that  was not made,  nor a  remedy for

            hypothetical non-cooperation  with  the court  that  has  not

            occurred.   Cf.  Bemis,  30 F.3d  at  221 (considerations  of
                        ___  _____

            remedy must await proof of a promise and its breach).  

                      A review  of the plea hearing  transcript leaves no

            doubt that Clemente's guilty plea in this regard was knowing,

            intelligent  and voluntary.    The court  warned Clemente  in

            strong  terms  of its  inclination  to  impose a  consecutive

            sentence  and recessed  the  plea hearing  to  permit him  to

            consult  with  his  attorney  prior to  accepting  his  plea.

            Clemente  then chose  to plead  guilty after  a full  Rule 11

            colloquy in  which he  acknowledged his understanding  of the

            court's  warning and all other relevant matters.  See Fed. R.
                                                              ___

            Crim. P. 11. 

                      Clemente argues that it  was error for the district

            court to resolve  this   2255  motion without an  evidentiary

            hearing.   However, a petitioner under   2255 bears the usual

            burden  of  showing that  his  motion  cannot be  effectively

            "heard" on the papers.   See United States v. McGill, 11 F.3d
                                     ___ _____________    ______

            223,  225-26 (1st Cir. 1993).  The mainstay of his challenge,

            above,  did not  require  an evidentiary  hearing because  it

            raised only an issue of law. 

                       A hearing  also was not required  on the remaining

            claims, discussed seriatim below, because each was invalid as
                              ________

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a matter of law, or contradicted by the record.   Id. at 225.
                                                              ___

1.  There is no  merit to Clemente's arguments that
                      1.

            his  counsel provided  ineffective assistance, and  the court

            erred during the plea colloquy, by failing to advise Clemente

            of  the  statutory  details   pertaining  to  concurrent  and

            consecutive sentences.  Even  if one, or  both of them had  a

            duty to impart this information (which we  doubt), the record

            belies any  plausible claim that Clemente would not have pled

            guilty  but  for  the omission,  or  that  it  resulted in  a

            miscarriage of justice.   See Hill v. Lockhart, 474  U.S. 52,
                                      ___ ____    ________

            57-59 (1985) (to prevail on a claim of ineffective assistance

            in  a plea  agreement petitioner  must show  that there  is a

            reasonable  probability that,  but  for  counsel's error,  he

            would not have pled  guilty but would have insisted  on going

            to  trial);  United States  v.  Timmreck, 441  U.S.  780, 783
                         _____________      ________

            (1979) (nonconstitutional  error in  a Rule 11  colloquy does

            not provide a basis for relief under   2255 unless it amounts

            to  a   complete  miscarriage  of  justice   or  an  omission

            inconsistent with the rudimentary demands of fair procedure).

2.  The  record contradicts  Clemente's claim  that
                      2.

            the  court failed to warn him  that he would not be permitted

            to withdraw his plea if the court rejected  the prosecution's

            sentencing recommendation.   Although  the court did  not use

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formulaic  words,  the  court's  repeated   emphasis  on  the

            invariable  repercussions of a guilty plea, and the recess to

            permit  Clemente to  consult with  counsel about  the court's

            warnings, combined to  leave no doubt  about the finality  of

            the  plea.  Cf. United  States v. Medina-Silverio,  30 F.3d 1
                        ___ ______________    _______________

            (1st  Cir.  1994)  (Rule   11  is  satisfied  by  substantial

            compliance, courts are  not required to  follow a formula  of

            "magic  words").  There was no fundamental defect in the plea

            colloquy. 

                      3.  Clemente's allegation that he was misled during
                      3.

            the  plea  hearing  recess  by  prosecutorial  pressures  and

            promises, is  contradicted by the hearing  transcript as well

            as  his own affidavit.   His affidavit recites  only that his

            attorney told him  during the recess that  the prosecutor had

            stated his  "firm  belief"  that  the judge  would  impose  a

            concurrent sentence after he heard of  Clemente's cooperation

            and testimony  at  trial.   The  transcript shows  that  when

            Clemente  returned to the hearing he swore under oath that no

            additional promises had  been made.   See Bemis,  30 F.3d  at
                                                  ___ _____

            222-23 (in the absence  of unusual facts lending plausibility

            to  belated allegations, a defendant  is bound by  his or her

            sworn representations in  court disclaiming the existence  of

            additional promise). 

                       Finally,   Clemente  was   not  entitled   to  the

            appointment of  counsel for  this    2255 motion, see  United
                                                              ___  ______

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States  v. Mala,  7 F.3d  1058, 1063  (1st Cir.  1993), cert.
            ______     ____                                         _____

            denied, 114 S.  Ct. 1839  (1994), and his  argument that  the
            ______

            district judge  should have recused himself  from hearing the

            motion is  specious.  See Panzardi-Alvarez  v. United States,
                                  ___ ________________     _____________

            879 F.2d 975,  985 (1st Cir. 1989)  (there is nothing  per se
                                                                   ___ __

            wrong with the sentencing judge reviewing a   2255 petition),

            cert. denied, 493 U.S. 1082 (1990); see also Liteky v. United
            ____________                        ________ ______    ______

            States,  114 S.  Ct.  1147,  1155  (1994)  (a  judge  is  not
            ______

            recusable  because he has formed an opinion of the case based

            on information  acquired while presiding over  it, unless his

            opinion is so extreme as to display clear inability to render

            fair  judgment); McGill, 11 F.3d at 226 (a district judge may
                             ______

            rely upon  his memory of earlier proceedings in ruling on a  

            2255 motion).

                      Affirmed.
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