Bethel v. Kerby
| Decision Date | 29 November 1993 |
| Citation | 946 F.2d 900 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Petitioner, Thomas Patrick Bethel, is before us on an application for a certificate of probable cause in order that he might appeal the district court's denial of his petition for a writ of habeas corpus. In his petitioner, Bethel asserts that his 1984 plea of guilty in state court to the charge of receiving stolen property, and his agreement to a charge under New Mexico's habitual offender statute, were unconstitutionally induced by an unfulfilled promise on the part of the state that any sentence imposed would run concurrently with a sentence to be imposed by a state court in another judicial district on a then pending charge of armed robbery. Bethel contends that this alleged promise was breached by the state and the court which imposed a consecutive sentence. Bethel contends further that his counsel was constitutionally ineffective in that counsel informed Bethel that if he entered the plea agreement he would receive a concurrent sentence with that expected to be imposed for the armed robbery charge, and by failing to object when that promise was disregarded. He alleges that his counsel was further ineffective by failing to move for withdrawal of the plea agreement when a consecutive sentence was imposed. The district court adopted the magistrate judge's proposed findings and recommended disposition and dismissed Bethel's petition. We grant a certificate of probable cause, and affirm.
The basic facts are as follows. On October 30, 1984, Bethel, who was represented by counsel, entered into a detailed plea agreement, a copy of which we attach hereto. That agreement recites Bethel's considerable criminal history, including felony dealing in credit cards, forgery of a credit card, residential burglary, and armed robbery. In addition, the agreement refers to another charge which was pending at that time, which the file reveals to have been another armed robbery charge. On March 11, 1985, after Bethel had been sentenced on the armed robbery in another state court, the state court for the County of Bernallilo, Second Judicial District, sentenced Bethel to a term of 18 months on the charge of receiving stolen property, with four years enhancement as an habitual offender, with the five and one-half year total sentence to run consecutively to the sentence imposed on the armed robbery charge. Five years later, Bethel commenced this attack on the latter sentence by filing a petition for a writ of habeas corpus in New Mexico District Court. In that petition he alleged that it was his "understanding" that he would receive a concurrent, not a consecutive sentence if he pled guilty, that his attorney led him to believe that he would receive a concurrent sentence, that his attorney ineffectively defended him by doing so, and that the handwritten insertion of paragraph 10 in the plea agreement was made without his knowledge or consent. He attached a letter from his attorney, Shannon Robinson, purporting to support some of the contentions just outlined.
On April 10, 1990, the state district court denied relief, specifically finding that the "tape of the plea on 10/30/84 shows that paragraph 10 of the plea agreement was discussed and that defendant was fully aware of the situation." Bethel then filed a motion for reconsideration in which, in two numbered paragraphs, he renewed his claim that his attorney misadvised him that his sentence would be concurrent with the armed robbery sentence, and that "the Court [which imposed the consecutive sentence now being challenged, and before the which the state habeas petition was then under consideration] was unaware that the District Court in Las Cruces would later enhance the Petitioner's sentence by an additional 3 (three) years through a habitual charge." The motion for reconsideration did not renew Bethel's charge that the handwritten paragraph 10 in the plea agreement was inserted without his knowledge, understanding or consent. On May 9, 1990, the same state district court denied Bethel's motion for reconsideration in an order which stated as follows:
Finds that Defendant was made fully aware that there was no agreement that his sentence in Bernallilo County would run concurrent with his sentence in Dona Ana County and that this would be left up to the Judge at the time of sentencing.
Motion for Reconsideration is denied.
/s/ Frank H. Allen, Jr.
FRANK H. ALLEN, JR.
R.Vol. I, Tab 10 (emphasis added.) Thereafter, the New Mexico Supreme Court denied Bethel's petition for a writ of certiorari.
As indicated by the facts just recited, Bethel's federal habeas petition embellished his ineffectiveness claim with claims not raised in his petition filed in state court, to wit: that counsel was ineffective for failing to object when a consecutive sentence was entered, allegedly in violation of an agreement to the contrary, and for failing to file a motion to withdraw the plea agreement. Neither of those specific claims were exhausted in state court--an omission which is inconsequential in view of our analysis and disposition. The magistrate judge recommended denial of relief on the ground that the state court explicitly determined that Bethel was aware that no agreement had been made concerning the terms of his sentence, and that finding is entitled to a presumption of correctness. 28 U.S.C. § 2254(d), Sumner v. Mata, 449 U.S. 539 (1981), Case v. Mondragon, 887 F.2d 1388 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1490 (1990). As indicated above, the district court adopted the magistrate's findings and recommendation and, upon a de novo review, dismissed Bethel's petition with prejudice.
On appeal, Bethel renews the claims outlined above, and contends that the district court additionally erred when it failed to hold an evidentiary hearing on the claims raised in the petition. He relies in particular on a letter from his counsel, dated February 21, 1990, contending that "this letter clearly indicates that the state promised a concurrent sentence." Appellant's Brief in Chief at 2. He also argues that when a plea rests on a promise of the prosecutor, that promise must be fulfilled regardless of the role it played in the defendant's decision to plead. Appellant's Reply Brief at 2.
We reject Bethel's arguments. The plea agreement clearly states the terms of the plea in considerable detail including a statement in paragraph 1. that the disposition will be as prescribed by law and that the state will remain silent at sentencing, and a statement in paragraph 10. that "no promises have been made as to terms of sentence." The plea agreement concludes with a representation by Bethel's counsel that he has discussed the matter with his client in detail and concurs in the entry of the plea on the terms and conditions set forth in the plea agreement itself. The February 21, 1990, letter from Bethel's counsel, Shannon Robinson (a copy of which is attached hereto), does not clearly indicate that the state promised a concurrent sentence. It states "I felt like I had received assurances ..." (emphasis added). It also states that Robinson, not the state, made a mistake. Furthermore, on November 20, 1986, Robinson wrote a letter (copy attached) to the governor of New Mexico seeking clemency for Bethel. That letter says nothing about an alleged breach of plea agreement by the government in this case.
It simply defies credulity that Robinson had a supposed agreement with the state regarding sentencing which was not included in the detailed written plea agreement, then would stand by at sentencing and allow the supposed agreement to be breached without objection or comment on the record, then allow time to pass without bringing the matter to the attention of the court or some other authority while being interested and active enough to seek clemency from the governor on Bethel's behalf on other grounds, then after five years to more or less suggest that there may have been an agreement or "assurance" which was breached. Furthermore, the record discloses that Bethel is no stranger to the courts. It further defies credulity that either Bethel or Robinson would believe that a government prosecutor had the power to bind the court with respect to a sentence to be imposed, beyond merely incorporating a proposed sentence in a written plea agreement for presentation to the court for approval or disapproval, and in view of the fact that the plea agreement which was tendered to and signed by the court, specifically stated that no promises had been made.
Finally, we have the dispositive finding by the New Mexico courts that Bethel was "fully aware that there was no agreement...
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