U.S. v. Wright, 92-6368

• Decision Date: 14 December 1994
• Docket Number: No. 92-6368,92-6368
• Parties: UNITED STATES of America, Respondent-Appellee, v. Harvey Russell WRIGHT, Jr., Petitioner-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 491

43 F.3d 491

UNITED STATES of America, Respondent-Appellee, v. Harvey Russell WRIGHT, Jr., Petitioner-Appellant.

No. 92-6368.

United States Court of Appeals, Tenth Circuit.

Dec. 14, 1994.

Stephen Jones, of Jones & Wyatt, Enid, OK, for petitioner-appellant.

William G. Pharo (James R. Allison, Interim U.S. Atty., Denver, CO, with him on the briefs), Asst. U.S. Atty., Denver, CO, for respondent-appellee.

Before TACHA and SETH, Circuit Judges, and LUNGSTRUM ^*, District Judge.

TACHA, Circuit Judge.

Appellant Harvey Russell Wright, Jr. pleaded guilty to distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1). He was sentenced to two years in the custody of the Attorney General and a three-year special parole term. After his release from prison but before his parole term had expired, appellant filed a petition for Writ of Error Corum Nobis with the United States District Court for the Western District of Oklahoma. In his petition, appellant claimed that the prosecution (1) breached its informal immunity agreement with appellant, (2) withheld requested material evidence, and (3) coerced appellant's guilty plea by threatening to indict members of his family. The district court denied appellant's petition, and he now appeals. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 2255 and affirm in part and remand in part.

I. Background

On April 13, 1987, a federal grand jury returned a twenty-six count indictment against defendant, each count involving the possession or distribution of cocaine or marijuana. On April 21, 1987, appellant filed several motions, including a Motion to Dismiss the Indictment ("motion to dismiss") and a Motion and Memorandum for Disclosure of Impeaching Information ("motion for disclosure"). The motion to dismiss alleged that the government had violated the informal immunity agreement it had reached with appellant. According to appellant, prosecutors assured him in their agreement that he was not "nor would he become the subject of an investigation so long as he did not lie or commit perjury before the grand jury." The disclosure motion requested specific information, including the disclosure of "[a]ny and all consideration or promises of consideration given to or on behalf of the witness or expected or hoped for by the witness."

By written order dated May 13, 1987, the district court granted appellant's motion for disclosure and directed the government to provide the defense with the requested information twenty days prior to trial. One week later, the district court denied appellant's motion to dismiss; appellant immediately appealed this ruling.

On the morning his trial was to begin, appellant reached a plea agreement with the prosecution. Appellant agreed to plead guilty to one count of distributing cocaine and to dismiss his appeal from the district court's denial of his motion to dismiss the indictment. In exchange, the government dismissed the other twenty-five counts included in the indictment. After accepting his plea, the court sentenced appellant to two years in the custody of the Attorney General and a three-year special parole term.

After his release from prison, appellant discovered that, contrary to the evidence disclosed by the prosecution prior to trial, the government had reached informal immunity agreements with several of its witnesses against appellant. According to appellant, each of these agreements was nearly identical to the agreement appellant thought he had reached with the prosecution. Upon release of his complete government file, appellant also discovered that the government never had sufficient evidence to indict any members of his family.

On August 30, 1990, appellant filed a petition for Writ of Error Corum Nobis with the district court. His petition contained three claims. First, he asserted that the prosecution violated its agreement not to prosecute appellant if he testified before the grand jury. Appellant claimed that he divulged self-incriminating evidence before the grand jury only after receiving assurances from Assistant United States Attorney Watson ("AUSA Watson") that he was not the target of a government investigation and that he would not be prosecuted. Second, he claimed that the prosecution withheld requested evidence of similar informal immunity agreements it had reached with several witnesses. Finally, he claimed that the prosecution had coerced him into pleading guilty by threatening to indict several members of his family on mail fraud charges.

Because appellant was still in government custody as a parolee, the court treated his petition as a request for relief pursuant to 28 U.S.C. Sec. 2255. The government moved to dismiss appellant's petition on summary judgment, but the court denied the government's motion and held a three-day evidentiary hearing.

By written order dated September 16, 1992, the district court denied appellant's petition. The court held that appellant's first two claims were procedurally barred due to his failure to raise them on direct appeal. With respect to appellant's third claim, the court found that the prosecution had investigated the members of appellant's family in good faith. Thus, even if the prosecution had made the threats alleged in appellant's petition, it had not violated appellant's right to due process. Appellant now appeals the district court's order.

II. Violation of Appellant's Non-Prosecution Agreement

Appellant first claims that the prosecution denied him due process by breaching an informal immunity agreement used to induce appellant to testify at two grand jury proceedings. A defendant who knowingly and voluntarily pleads guilty ¹ waives all non-jurisdictional challenges to his conviction. United States v. Gines, 964 F.2d 972, 977 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1023, 122 L.Ed.2d 169 (1993); United States v. Hickok, 907 F.2d 983, 985 (10th Cir.1990). Having pleaded guilty, a defendant's only avenue for challenging his conviction is to claim that he did not voluntarily or intelligently enter his plea. Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984); Barker v. United States, 579 F.2d 1219, 1226 (10th Cir.1978).

In this case, appellant was fully cognizant of the alleged governmental misconduct when he entered his plea. Instead of pursuing these claims further, he decided to accept the prosecution's plea bargain. By doing so, appellant waived any claim that the government breached its non-prosecution agreement with him. While appellant's allegations, if true, demonstrate troublesome conduct by the prosecution, they do not call into question the knowing and voluntary nature of his plea. Appellant is therefore barred from raising such a claim in his section 2255 petition.

III. Failure to Disclose Non-Prosecution Agreements

Appellant next claims that the government violated his right to due process by withholding evidence of informal immunity agreements it had reached with several of its witnesses. Appellant asserts that, in his motion to disclose, he specifically requested the disclosure of all such agreements the prosecution reached with its witnesses. Moreover, the district court ordered the prosecution to disclose the requested information twenty days before trial. Appellant claims that, by suppressing this evidence, the prosecution denied him due process under the standards of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

A.

Again, a defendant who has pleaded guilty may thereafter only challenge the voluntariness of his plea. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Nevertheless, pleading guilty does not preclude a defendant from claiming that his plea was the product of prosecutorial "threats, misrepresentations, or improper promises." Bradbury v. Wainwright, 658 F.2d 1083, 1086 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982); see also Crow v. United States, 397 F.2d 284, 285 (10th Cir.1968). Such claims directly challenge the voluntary and intelligent nature of the plea. Bradbury, 658 F.2d at 1086.

In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment." 373 U.S. at 87, 83 S.Ct. at 1196. In Giglio, the Court extended its holding in Brady to include evidence affecting the credibility of the government's witnesses. 405 U.S. at 154, 92 S.Ct. at 766. "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." Id. (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). And in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court reaffirmed its holdings in Brady and Giglio, stating that the Brady rule extends to "[i]mpeachment evidence ... as well as exculpatory evidence [because] ... if disclosed and used effectively, [impeachment evidence] may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676, 105 S.Ct. at 3380.

This court has yet to address whether a defendant who has pleaded guilty can raise a Brady or Giglio claim in his section 2255 petition. The central question is whether the withholding of material evidence could taint a criminal proceeding so substantially that the defendant's decision to plead guilty could not fairly be called knowing and intelligent. Most courts have held that defendants who have pleaded guilty are not barred from raising Brady claims in their petitions for post-conviction relief. See, e.g., White v. United States, 858 F.2d 416, 422 (8th Cir.1988) (the Supreme Court's guilty plea cases "do[ ] not preclude a collateral attack upon a guilty...