United States v. Doyle
Opinion
USCA1 Opinion
January 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1605
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CLIFFORD A. DOYLE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
____________________
Marcia G. Shein on brief for appellant. _______________
Jay P. MCloskey, United States Attorney, F. Mark Terison, _________________ __________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Petitioner Clifford A. Doyle appeals __________
from the dismissal without hearing of his motion to vacate,
set aside, or correct his sentence under 28 U.S.C. 2255.
Specifically, he argues that the district court erred in
dismissing his claims that the government breached its
promise to recommend a six-year sentence and that his
attorney provided ineffective assistance of counsel.
Breach of Plea Agreement ________________________
In rejecting appellant's claim that the government
breached the plea agreement, the district court relied upon
the written plea agreement and the transcript of the Rule 11
hearing that it conducted. "The trial judge makes the
factual determination of whether there has been a breach of
the plea agreement. [This court] will not reverse this
determination, therefore, unless clearly erroneous."
Panzardi-Alvarez v. United States, 879 F.2d 975, 987 (1st ________________ ______________
Cir. 1989), cert. denied, 493 U.S. 1082 (1990). ____ ______
In dismissing a 2255 motion without a hearing, the
district court "must take petitioner's factual allegations
'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.'" Otero-Rivera v. United States, 494 F.2d 900, 902 (1st ____________ _____________
Cir. 1974); (citations omitted); see also, Hernandez- ___ ____ __________
Hernandez v. United States, 904 F.2d 758, 762 (1st Cir. _________ _____________
-2-
1990). In this case, appellant's allegation that the
government promised to recommend a six-year sentence is
contradicted by the record. The plea agreement itself
contains no such promise and, in fact, provides that "all
parties specifically reserve the right to make any non-
binding recommendation of any lawful sentence to the court."
Paragraph nine of the plea agreement provides as follows:
The defendant understands that there are no
further or other agreements, either express or
implied, other than those contained in this
Agreement.
At the Rule 11 hearing, the district court directly
questioned appellant as follows:
Q. Has anyone made a promise to you in an effort
to induce you to plead guilty aside from the plea
agreement I have discussed with you?
A. No sir.
"[T]he presumption of truthfulness of [defendant's] Rule
11 statements will not be overcome unless the allegations in
the 2255 motion . . . include credible, valid reasons why a
departure from those earlier contradictory statements is now
justified." United States v. Butt, 731 F.2d 75, 80 (1st Cir. _____________ ____
1984); cf. United States v. Doyle, 981 F.2d 591, 594 (1st ___ ______________ _____
Cir. 1992) ("We have repeatedly refused to infer the
existence of promises not expressly articulated in, or
-3- 3
necessarily implied by, plea agreements, . . ."). In his
2255 motion appellant provides no explanation for his denial
in the Plea Agreement and at his Rule 11 hearing that any
promises had been made other than those contained in the Plea
Agreement itself. Therefore, he failed to overcome the
presumption of truthfulness of his Rule 11 statements.
Under those circumstances, the district court did not err in
summarily denying appellant's breach-of-plea claim. See Butt, ___ ____
731 F.2d at 80 (affirming summary denial of 2255 petition
where appellant "has given no valid reasons why he should be
relieved of his statements in the 'Plea Petition' or at the
change of plea proceeding").
Ineffective Assistance of Counsel _________________________________
On appeal, appellant alleges for the first time that his
attorney provided ineffective assistance in misrepresenting
that the government would recommend a six-year sentence. He
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Related
Hill v. Lockhart
474 U.S. 52 (Supreme Court, 1985)
Anibal Otero-Rivera v. United States
494 F.2d 900 (First Circuit, 1974)
United States v. Mohammed Y. Butt
731 F.2d 75 (First Circuit, 1984)
United States v. Robert J. Giardino
797 F.2d 30 (First Circuit, 1986)
Jose E. Panzardi-Alvarez v. United States
879 F.2d 975 (First Circuit, 1989)
United States v. Francisco J. Pacheco-Ortiz
889 F.2d 301 (First Circuit, 1989)
Arnaldo Hernandez-Hernandez v. United States
904 F.2d 758 (First Circuit, 1990)
United States v. Clifford A. Doyle
981 F.2d 591 (First Circuit, 1992)