Forsyth v. Spencer

• Decision Date: 16 February 2010
• Docket Number: No. 09-1011.,09-1011.
• Citation: 595 F.3d 81
• Parties: Scott FORSYTH, Petitioner, Appellant, v. Luis SPENCER, Superintendent at MCI Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

595 F.3d 81

Scott FORSYTH, Petitioner, Appellant, v. Luis SPENCER, Superintendent at MCI Norfolk, Respondent, Appellee.

No. 09-1011.

United States Court of Appeals, First Circuit.

Heard December 7, 2009.

Decided February 16, 2010.

Victoria L. Nadel, for appellant.

Jessica V. Barnett, Assistant Attorney General, Criminal Bureau, Appeals Division, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before BOUDIN, STAHL and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

Scott Forsyth, appealing after a denial of his petition for habeas corpus, is serving eight to ten years in state prison for assault and battery with a dangerous weapon, malicious destruction of property, and attempted arson. His conviction stemmed from an incident at his mother's home in the pre-dawn hours of September 10, 2000. During an argument, Forsyth took a nearby can of gasoline and chased his mother into the kitchen with it; spilled gasoline all over the kitchen floor and splashed it onto her head and shoulders; and threatened to set fire to his mother, himself, and the house.

When Forsyth's mother attempted a 911 call, Forsyth pulled the phone from the wall, but police responded to the interrupted call. Forsyth was thereafter charged in the Massachusetts Superior Court with assault with intent to murder and the three lesser offenses listed above. Just prior to proceedings on December 19, 2000, an unrecorded lobby conference with the presiding judge occurred to discuss a possible guilty plea and sentence. What was said in the conference is evidenced by later affidavits submitted by the three individuals who attended it (in addition to the judge): the prosecutor, Forsyth's plea counsel, and a probation officer.

From these affidavits and the later proceedings, it is clear the parties at the conference could not agree upon a recommended sentence; but they agreed that Forsyth would aim to plead guilty to the three less serious charges in exchange for the Commonwealth's dismissal of the assault with intent to murder charge; and they discussed obtaining for his sentencing a mental health evaluation based on Forsyth's history of mental illness, including bipolar disorder. None of the three affiants claims that a specific sentence recommendation was promised by the prosecutor, but recollections differ on what if anything was said as to possible numbers.

In her affidavit, Forsyth's plea counsel said that her "memory [was] that the Commonwealth was willing to request a three to five year term if the defendant was in agreement"; that absent such an agreement the prosecutor did not commit to any recommendation; but that plea counsel thought the Commonwealth would still recommend and the judge would accept a term in that range. The prosecutor and probation officer had no memory that a three to five year term was mentioned, and the probation officer remembered only that the prosecutor had said in the conference that she "was going to recommend a lengthy period of incarceration."¹

After the lobby conference, Forsyth's plea counsel conferred with Forsyth. Forsyth averred (in a 2003 affidavit) that his plea counsel told him that "the lawyer for the government said she would ask for three to five years of incarceration in the House of Correction," but his plea counsel's affidavit states that she "never told Mr. Forsyth that the Commonwealth would recommend at most three to five years." Instead, her affidavit says, she told him only that a "three to five year term had been discussed, [but] the Commonwealth had not guaranteed what its recommendation was going to be."

Forsyth then pled guilty to the three lesser charges already listed and the Commonwealth dismissed the assault with intent to murder charge. The court made the usual inquiries to assure that the plea was being entered voluntarily and with a basis in fact. The court also invited the prosecutor to list the maximum penalties for each of the charges to which Forsyth was pleading guilty and confirmed that Forsyth understood that the court could impose the maximum sentence for each charge and do so consecutively. Both in a signed, written waiver of rights and in court, Forsyth confirmed that no promises had been made to induce his plea.

After a psychiatric evaluation, a sentencing hearing was held on June 4, 2001. The Commonwealth recommended that Forsyth be sentenced to eight to ten years in prison for assault and battery with a dangerous weapon. The court accepted the Commonwealth's recommendation, taking note of the seriousness of Forsyth's prior criminal history, which included a previous attempt on his mother's life in which he had stabbed her with a screwdriver. Forsyth reacted angrily to the sentence but, at the time, did not assert that he had been promised or assured of either a different recommendation by the prosecutor or a different sentence.

In July 2001, Forsyth filed motions to revise and revoke his sentence. That fall, he filed pro se a motion to withdraw his plea, asserting in an affidavit that he "had a deal and copped out to house time split with probation." Thereafter, in 2003, Forsyth (now aided by successor counsel) claimed in a new motion to withdraw the plea that his plea counsel either "misunderstood the Commonwealth's proposed recommendation or . . . misinformed Mr. Forsyth of what that recommendation would be," and that Forsyth "acted in reliance upon [his] attorney's representation of the government's position." It was at this point that Forsyth filed the 2003 affidavit earlier quoted.²

In response, the Commonwealth submitted the affidavits (discussed above) of the prosecutor, Forsyth's plea counsel, and the probation officer regarding the December 19 lobby conference and Forsyth's conversation with plea counsel prior to entering his guilty plea. The trial judge denied the motions to revise the sentence and to withdraw the guilty plea and denied a request for an evidentiary hearing, saying that Forsyth's affidavit was "self-serving," that he (the judge) "credit[ed] the affidavits" of the prosecutor and Forsyth's plea counsel, and that the Commonwealth had in fact told Forsyth's counsel that it intended to recommend "a lengthy sentence." The Massachusetts Appeals Court affirmed, Commonwealth v. Forsyth, 69 Mass.App. Ct. 1108, 868 N.E.2d 953 (2007), and further review was denied, Commonwealth v. Forsyth, 449 Mass. 1110, 873 N.E.2d 247 (2007).

Forsyth then filed a federal habeas corpus petition, arguing that his plea was based upon inaccurate and incomplete information and therefore involuntary and that he had received ineffective assistance of counsel. A flawed plea may sometimes comprise a due process violation, Boykin v. Alabama, 395 U.S. 238, 243 & n. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); inadequate counseling can also undermine due process and Sixth Amendment rights where counsel's efforts do not meet minimum standards and where the outcome was thereby affected. Strickland v. Washington, 466 U.S. 668, 684-85, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Adopting a magistrate judge's report and recommendation, the district court dismissed the petition. Granted a certificate of appealability, Forsyth has now renewed his constitutional claims in this court: mainly he contends that his plea counsel misled him into thinking that the prosecutor had promised to recommend a three to five year prison sentence or at least predicted ineptly that the Commonwealth would make such a recommendation.

Our review of the district court's decision is de novo. Pina v. Maloney, 565 F.3d 48, 52 (1st Cir.2009). The governing federal habeas statute provides that a state decision may be overturned—so far as it resolves factual issues—only if it is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."³ 28 U.S.C. § 2254(d)(2) (2006). As for federal legal issues decided by the state court, they may be set aside only if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Id. § 2254(d)(1).

The state courts credited the affidavit of Forsyth's plea counsel; the key pertinent content amounted to this: that plea counsel had told Forsyth that the prosecutor had not promised a specific recommendation and that...