632 F.3d 277 (6th Cir. 2011), 09-3284, Smith v. Anderson

Docket Nº:09-3284.
Citation:632 F.3d 277
Opinion Judge:BELL, District Judge.
Party Name:Shawn SMITH, Petitioner-Appellant, v. Carl ANDERSON, Respondent-Appellee.
Attorney:William T. Whitaker, Jr., Akron, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. William T. Whitaker, Jr., Andrea L. Whitaker, Akron, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
Judge Panel:Before: MARTIN and SILER, Circuit Judges; BELL, District Judge. [*]
Case Date:February 11, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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632 F.3d 277 (6th Cir. 2011)

Shawn SMITH, Petitioner-Appellant,


Carl ANDERSON, Respondent-Appellee.

No. 09-3284.

United States Court of Appeals, Sixth Circuit.

February 11, 2011

Argued: Dec. 9, 2010.

Page 278


William T. Whitaker, Jr., Akron, Ohio, for Appellant.

M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.


William T. Whitaker, Jr., Andrea L. Whitaker, Akron, Ohio, for Appellant.

M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MARTIN and SILER, Circuit Judges; BELL, District Judge. [*]


BELL, District Judge.

In this habeas case, Petitioner-Appellant Shawn Smith asks us to allow him to withdraw his plea of guilty or to remand his case for resentencing on the basis of a broken promise by the State of Ohio. Though made during plea negotiations, the promise was not contained in the fully integrated, written plea agreement; Petitioner disavowed the existence of the promise in open court; and Petitioner appears not to have even known about the promise until well after his plea was entered. Because this Court declines to hold that failing to enforce such a promise is an unreasonable application of clearly established federal law as determined by the Supreme Court, we AFFIRM.

I. Background

A. Factual History

The underlying facts of this case are not in dispute. Petitioner married his fifteen-

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year-old, pregnant girlfriend in 1990. Their daughter was born with serious medical problems and died five months after birth, never having left the hospital. Shortly thereafter, Petitioner's wife began seeing another man. Petitioner was overwhelmed by these events, and in June of 1991, he broke into the house next door to his wife's and waited for her to come out. When she came outside with the man she was seeing, Petitioner drew a small caliber handgun and shot each of them in the head. Miraculously, both were treated and released from the hospital within a few days, apparently without serious permanent injury.

There being little question as to responsibility, Petitioner was indicted by a state grand jury and entered into a lengthy plea negotiation with the prosecutor, who wanted to avoid a highly publicized and emotionally-charged trial. The result of the negotiations was a written plea agreement, filed with the trial court, by which Petitioner agreed to plead guilty to two counts of attempted aggravated murder, one count of felonious assault with a firearm specification, and one count of breaking and entering. In exchange for Petitioner's guilty plea, the state agreed to forego prosecuting Petitioner on unrelated burglary charges and to dismiss several pending misdemeanor charges. The written plea agreement presented to, and accepted by, the trial court does not include any additional promises by either party and states that it represents a complete summation of the agreement. However, the parties now agree that during the course of plea negotiations, the prosecutor promised Petitioner's counsel that the prosecutor's office would not send any letters of recommendation to the Parole Board when Petitioner became eligible for parole. 1 The parties also agree that a new prosecutor later broke that promise.2

As clear as the evidence of the broken promise is now, it is equally clear that the trial court had no knowledge of this secret, off-the-record exchange when it accepted Petitioner's guilty plea. Indeed, all evidence on the record militated against the existence of any promises outside of the plea agreement, and the trial court did everything in its power to ensure that none existed. Petitioner's change of plea hearing of March 12, 1992, began with a reading of a written summary of the plea negotiations into the record, followed by an extended discussion of its meaning. Again, the only promises discussed were of the state's dropping some charges in exchange for Petitioner's guilty pleas as to others. During the subsequent plea colloquy, the court asked Petitioner whether he had " been promised anything other than what I have been told here in this Court Room today to secure a plea of guilty," and Petitioner assured the court that he had not. In Petitioner's written guilty plea executed moments earlier, he stated that, " I have been fully advised by my attorney of the Criminal Rule 11(F) plea negotiations which have also been stated in open court...." In accepting this plea, the court noted that " this was a negotiated plea pursuant to Criminal Rule 11(F) and

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the underlying agreement upon which the plea was based was stated on the record in open Court, which agreement was approved by the Court." Based on the plea colloquy, the written plea agreement, the attorneys' summary of plea negotiations, and the written plea of guilty, the trial court accepted the plea.

B. Procedural History

After the Parole Board denied him parole in December of 1999, Petitioner claimed breach of his plea agreement and moved to withdraw his plea. He argued that Ohio's new sentencing guidelines effectively extended his sentence. Following a hearing on the motion, but before a ruling had issued, Petitioner filed a renewed motion in which he contended that the prosecutor had breached the plea agreement by sending a letter of recommendation to the Parole Board...

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