Clemmons v. U.S., 82-2448

• Decision Date: 16 November 1983
• Docket Number: No. 82-2448,82-2448
• Citation: 721 F.2d 235
• Parties: Edward Lee CLEMMONS, Appellant, v. UNITED STATES, * Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 235

721 F.2d 235

Edward Lee CLEMMONS, Appellant, v. UNITED STATES, ^* Appellee No. 82-2448.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1983.

Decided Nov. 16, 1983.

Bruce C. Houdek, James, Millert, Houdek, Tyrl & Sommers, Kansas City, Mo., for appellant Edward Lee Clemmons.

Robert G. Ulrich, U.S. Atty., Frederick O. Griffin, Jr., Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before ARNOLD and FAGG, Circuit Judges, and DUMBAULD, ^** Senior District Judge.

ARNOLD, Circuit Judge.

On November 18, 1977, appellant Edward Lee Clemmons escaped from the Missouri State Penitentiary, where he had served almost eight years of a twenty-year sentence for first-degree robbery. On January 17, 1978, after being captured and returned to state custody, he was indicted on three federal counts of interstate extortion, in violation of 18 U.S.C. Secs. 875(b) and 912. The United States brought the charges to trial in February 1978; a mistrial was declared on March 1, 1978, when the jury could not agree.

Clemmons then pleaded guilty to Count I of the indictment on April 7, 1978. The plea agreement between Clemmons and the government provided that if he would plead guilty to Count I or Count II, the remaining two counts would be dismissed. The government agreed to recommend a sentence of not more than three years, and not to make a recommendation as to whether the federal sentence would be served concurrently with or consecutively to the existing state sentence. The court accepted the guilty plea and, on May 18, 1978, sentenced Clemmons to a three-year sentence consecutive to his twenty-year state sentence.

Three years later, on May 19, 1981, after Clemmons had been paroled from state custody and begun to serve his federal sentence, he filed a motion under 28 U.S.C. Sec. 2255 to vacate his three-year sentence for interstate extortion. An evidentiary hearing was held before a magistrate. ¹ The District Court ² adopted the magistrate's report and recommendation that Clemmons's motion be denied. Clemmons appeals the District Court's denial of his motion.

Defendant maintains that he is not guilty of interstate extortion, but that he entered the plea because he understood that his federal sentence would run concurrently with his state sentence. He claims he understood further that he would be transferred to a federal institution from the Missouri State Penitentiary. He was incarcerated in the Missouri State Penitentiary before he escaped in November 1977. He says that he escaped to prevent other inmates from harming or killing him. Clemmons claims that his fear of the inmates in the Missouri State Penitentiary prompted his guilty plea and that therefore the plea was not voluntary. ³

I.

Clemmons's first contention is that his plea is involuntary because it was induced by his belief that the federal sentence would be concurrent with the state sentence and that he would be transferred to federal custody. The briefs submitted by Clemmons, the transcript of his federal guilty-plea and sentencing hearings, and the transcript of the hearings before the magistrate on the Sec. 2255 motion all support Clemmons's contention that at the time of his guilty plea he had a legitimate fear of bodily harm from prisoners in the Missouri State Penitentiary, from which he had escaped. Apparently he had cooperated with various state officials and was disliked among the Missouri inmates.

The District Court, however, found that neither the trial court, Clemmons's attorneys, nor the prosecutor ever promised him that if he pleaded guilty to the federal charge he would not be returned to the Missouri State Penitentiary before serving his federal time. Even Clemmons never testified that a promise had been made--he said he was "under the impression more or less" that "the sentences would run together." Proceeding on 28 U.S.C. Sec. 2255 Motion, Tr. 9. He testified that one attorney told him it was "very possible" the sentences would be concurrent. When explicitly asked if he was promised anything not included in the plea-bargain agreement, he testified, "No, sir." Guilty Plea Acceptance, Tr. 5.

The law is quite clear that a defendant's mere hope or subjective belief of better prison conditions if a guilty plea is entered is insufficient to show that the plea was made involuntarily. Kress v. United States, 411 F.2d 16, 22 (8th Cir.1969). This is so even if the prisoner's hope is based on incorrect advice of counsel. Greathouse v. United States, 548 F.2d 225, 228 n. 6 (8th Cir.1977), cert. denied, 434 U.S. 838, 98 S.Ct. 130, 54 L.Ed.2d 100 (1978) (guilty plea voluntary even though counsel wrongly told defendant the federal court could make his federal sentence concurrent with a state sentence). Thus, Clemmons's subjective belief, not based on any promise, that his sentences would be concurrent and that he would serve his time in federal custody, does not render his plea involuntary.

II.

Clemmons's second argument is slightly more problematic. He claims that he was misled into thinking that the District Court had the power to order concurrent sentences when it in fact had no such power. The record contains at least two instances where Clemmons may have been misled into thinking the District Court had the power to order concurrent sentences:

MR. SCHNEIDER: And I would ask the Court to be sure that the defendant understands the difference between a concurrent and consecutive sentence, because according to my recommendation the defendant could, if the Court should see fit, give the defendant a three-year consecutive sentence to his present state sentence. Is that correct Mr. Bradshaw?

* * *

* * *

Sentencing Tr. 3.

THE COURT: Now, I want to be sure that you understand the plea bargain agreement the same as I do. If I accept the plea bargain agreement, I can assess a sentence against you as long as three years imprisonment.

MR. CLEMMONS: (Nodded head.)

THE COURT: And I can--the most severe thing I could do, I could make that consecutive to your present state sentence. In other words, when you are released from confinement on you [sic] present state sentence, the federal marshal would be waiting at the door of the penitentiary and take you to a federal institution to serve this three-year sentence. Do you understand that?

MR. CLEMMONS: Yes, sir.

Sentencing Tr. 6.

The above colloquy arguably demonstrates that Clemmons was misled into believing that the court could order concurrent sentences. A federal trial court does not have the power to make a federal sentence run concurrently with a state sentence. The trial court can only recommend to the Attorney General that a prisoner's federal time be served in a state institution concurrently with a pending state sentence. United States v. Degand, 614 F.2d 176, 177-78 (8th Cir.1980); Greathouse, supra, 548 F.2d at 227. We have squarely held that "a defendant in state custody need not be informed that the federal judge lacks the power to order concurrent state-federal sentences." United States v. Degand, supra, 614 F.2d at 178. See also United States v. Jackson, 627 F.2d 883, 885 (8th Cir.1980); Greathouse, supra. The failure of the sentencing court to give this information to the defendant, moreover, does not give a defendant any right to post-conviction relief even where he claims that his attorney has wrongly advised him that the federal court could make its sentence concurrent. Both Degand and Greathouse so hold.

Clemmons seeks to avoid the force of these precedents by arguing that in his case the sentencing judge went beyond a simple failure to advise him that the sentence could not be made concurrent. The argument is that the court, in its explanation to Clemmons of the difference between concurrent and consecutive sentences, impliedly misstated the law and left the impression that it had the power to make its sentence concurrent.

We...