Doe v. U.S.

• Decision Date: 03 April 1995
• Docket Number: No. 92-3732,92-3732
• Citation: 51 F.3d 693
• Parties: John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 693

51 F.3d 693

John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-3732.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1994.

Decided April 3, 1995.

C. Steven Tomashefsky, Jerold S. Solovy, Adam L. Hoeflich (argued), Jenner & Block, Chicago, IL, for John Doe.

Richard H. Lloyd, Asst. U.S. Atty., Crim. Div., Fairview Heights, IL (argued), for U.S.

Before RIPPLE and MANION, Circuit Judges, and SKINNER, District Judge. ^*

MANION, Circuit Judge.

John Doe, ¹ a prisoner at Marion federal penitentiary, pleaded guilty to one count of conspiracy to commit murder (18 U.S.C. Secs. 1111 and 1117) for his involvement in the murder of a fellow inmate. For his crime, Doe was given a nineteen-year sentence, to be served concurrently with his current sentence. Doe raised no objections to his guilty plea at sentencing, nor did he file a direct appeal. Instead, over two years later, Doe filed a motion to vacate his sentence under 28 U.S.C. Sec. 2255, challenging the voluntariness of his plea. He also claimed that the government had breached a promise that his guilty plea would not be taken into consideration by the Parole Commission in determining his eligibility for parole (the Parole Commission did just that when it increased his eligibility date over 100 months). The district court observed that Doe was aware of these challenges at the time of sentencing. The court nevertheless went on to address the merits of the petition and determined that they were lacking. On appeal, the government argues that Doe defaulted his claims. We agree and also find no cause or prejudice for the default. We therefore affirm the district court's dismissal of the petition.

I.

Doe was incarcerated at the Marion federal penitentiary, where he was serving a twenty-five year sentence for a series of bank robberies committed in 1982 following his escape from a state prison. For this robbery sentence, the Parole Commission set Doe's offense severity rating at Category Six. The offense category rating is one of several factors used by the United States Parole Commission in determining the date on which an inmate may be considered eligible for parole. See 28 C.F.R. Secs. 2.20 et seq. Based on this offense severity rating, coupled with other acts Doe committed either in prison or while on the run, the Parole Commission determined that Doe would have to serve between 78 to 100 months of his sentence before he would be eligible for parole.

While serving his sentence, Doe, on September 23, 1983, assisted members of the Aryan Brotherhood in the murder of another inmate. We have already discussed at some length the gruesome details of this murder in United States v. McKinney, 954 F.2d 471 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992). Suffice it to say, Doe pinned the victim down in his cell bed while other members stabbed him to death.

Three years later, the government was still seeking solid evidence upon which to secure an indictment for the murder. At some point, the government determined that Doe had been involved in the murder and offered him a plea agreement in exchange for his cooperation. On August 11, 1986, Doe, who was represented by counsel, entered into a plea agreement with the United States (the "1986 agreement"), in which he agreed to plead guilty to one count of conspiracy to commit murder, and to cooperate with the government by providing information and testimony. In exchange for Doe's cooperation, the government, in paragraph four of the 1986 agreement, agreed to "recommend that the Court impose a sentence of no more than 19 years imprisonment, to be served concurrently with that sentence which he is presently serving...." Appellant's Br. Appendix at 3, p 4. The government further agreed to "recommend to the United States Parole Commission that [John Doe's] offense category remain at six (6)." Id. Finally, paragraph ten of the 1986 agreement stated that "the United States agrees that no testimony or other incriminating information given by [Doe], pursuant to the terms of this Plea Agreement, may be used directly against [Doe] in such subsequent criminal cases...." Appellant's Br. at 5, p 10. Doe did not enter a plea at the time, however, so that the 1986 agreement was never embodied in a judgment. The government therefore had no obligation to carry out the terms of the 1986 agreement. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).

Following this, Doe was placed in the Witness Security Program (18 U.S.C. Sec. 3521). Pursuant to the terms of the 1986 agreement, he testified before the grand jury regarding his involvement in the 1983 murder. As a result of Doe's testimony, the government obtained a two-count indictment against two inmates for murder and conspiracy to commit murder. In response, on November 26, 1986, an AUSA involved in Doe's case wrote a letter to the United States Parole Commission, in which he detailed Doe's cooperation with the government in its investigation. The AUSA recommended the Commission "[k]indly consider this information in any manner you deem necessary at [Doe's] upcoming parole hearing." R. 37, Ex. 3a.

Sometime in December of 1986, Doe appeared before the Parole Commission for an initial hearing on his parole date. The Commission informed Doe that based on his involvement in the murder of a fellow inmate, it was increasing his offense severity rating to Category Eight. As a result of this increase, Doe would have to serve at least an additional 100 months on his robbery sentence before he would become eligible for parole.

As a result of the Parole Commission's determination, Doe, apparently under the assumption that the 1986 agreement prohibited the Parole Commission from increasing his offense category rating, notified the government that he would no longer cooperate pursuant to the 1986 agreement. The government informed Doe that if that was the case, it would treat the 1986 agreement as void, and seek an indictment against him for the 1983 murder. In addition, the government informed Doe that as a result of his refusal to cooperate he would no longer be entitled to participate in the Witness Security Program.

Doe subsequently was indicted for one count of murder and one count of conspiracy to commit murder. On November 27, 1987, Doe and the government entered into a second plea agreement (the "1987 Agreement"). The 1987 agreement was virtually identical to the 1986 agreement except that it contained no promises with respect to recommendations to the Parole Commissions, and it modified paragraph 10 to read that "no testimony or incriminating information given by [Doe] pursuant to the terms of this Plea Agreement may be used directly or indirectly against [him] in subsequent criminal cases." Appellant's Br., Appendix 12 at 4 (emphasis added). On December 11, 1987, Doe, represented by new counsel, Mr. Jeffrey Goffinet, and the government appeared before the district court for a change of plea hearing. Following the hearing, the court accepted the 1987 Agreement, entered judgment against Doe for one count of conspiracy to commit murder, and, at the government's request, set the matter for sentencing following the completion of the trial at which Doe was scheduled to testify.

Due to Doe's prolonged involvement as a witness in this other criminal trial, sentencing on the 1987 Agreement was not set until February 26, 1990. Just days before sentencing, Doe, through counsel, ² filed a motion to withdraw his guilty plea. The core of his motion was that the 1987 Agreement was not voluntarily made. In his affidavit attached to his motion, Doe characterized the government's statement that he would be removed from the Witness Security Program as a threat to subject him to harm at the hands of the Aryan Brotherhood unless he continued to cooperate with the government. In his affidavit, Doe also mentioned his problems with the Parole Commission. Doe alleged that as an inducement into the 1986 agreement, the government promised him that his guilty plea would not affect his parole date. He stated that after he accepted the 1986 agreement he learned that his guilty plea would in fact affect his parole date, and that it was this broken promise that caused him to bail out of the 1986 agreement.

The district court set a hearing on Doe's motion for the same date as sentencing. At the hearing, however, Doe's counsel orally moved to withdraw his motion, stating, with no objection from Doe, that he had been instructed to do so by his client. The court granted Doe's motion to withdraw his motion, and then proceeded to sentencing. The district court sentenced Doe to a term of 15 years to run concurrent with his present sentence.

Doe never filed a direct appeal. Instead, over two years later, he filed a pro se motion to vacate his sentence under 28 U.S.C. Sec. 2255. The main thrust of Doe's motion was that the government induced him into the 1987 agreement by promising him that any information obtained through that agreement would not be used against him by the Parole Commission in setting or maintaining his offense severity rating. In support of his argument, Doe submitted a brief in which he alleged that these government promises were memorialized in paragraph ten of the 1987 agreement. In his opinion, that provision guaranteed that he would suffer neither direct nor indirect consequences from his decision to plead guilty under that agreement. Doe maintained that the Parole Commission's continued refusal to reinstate him at a Category Six offense severity rating constituted an indirect consequence of his guilty plea, in violation of paragraph ten of the 1987 agreement. As additional support, Doe also submitted an affidavit from the attorney who was present during the 1986 agreement negotiations, Alice Hull, who alleged that the AUSA present during these negotiations assured both her and Doe that...