Johnson v. Lumpkin

• Decision Date: 23 August 1985
• Docket Number: No. 84-6208,84-6208
• Citation: 769 F.2d 630
• Parties: Ronald JOHNSON, Plaintiff-Appellant, v. Warden LUMPKIN, et al., Defendant-Appellee. CA
• Court: U.S. Court of Appeals — Ninth Circuit

Page 630

769 F.2d 630

Ronald JOHNSON, Plaintiff-Appellant, v. Warden LUMPKIN, et al., Defendant-Appellee.

CA No. 84-6208.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1985.

Decided Aug. 23, 1985.

Frank J. Ragen, San Diego, Cal., for plaintiff-appellant.

Thomas L. Casey, Lansing, Mich., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, NELSON and CANBY, Circuit Judges.

CANBY, Circuit Judge:

Petitioner Ronald Johnson appeals from the district court's denial of his petition for a writ of habeas corpus. The petition at issue represents the latest collateral challenge to the proceedings in which Johnson was ultimately sentenced on state criminal charges, proceedings which also led to the federal investigation, indictment, and conviction of a member of the Michigan Supreme Court. Johnson's cooperation was important in this secret federal investigation, cooperation secured in exchange for the unauthorized promise of federal agents that he would serve no time on state charges. ¹ Although we affirm the district court's determination that Johnson was not denied due process either by the failure of federal agents to fulfill this promise or by the failure of the state sentencing judge to take his cooperation into account, we remand for consideration of whether the conduct of federal agents, in the context of this case, interfered with Johnson's sixth amendment right to the effective assistance of counsel. ²

BACKGROUND

In 1970, petitioner Ronald Johnson was convicted in Michigan of breaking and entering and larceny. His conviction was affirmed by the Michigan Court of Appeals in 1972. Three weeks after denying his application for leave to appeal, the Michigan Supreme Court, sua sponte, permitted Johnson's appeal, People v. Whalen, 388 Mich. 770 (1972), reversed his conviction and ordered a new trial. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). ³ This reversal, a marked departure from the court's usual procedure, prompted a federal bribery investigation of John Swainson, then an Associate Justice of the Michigan Supreme Court. In return for the assurance of federal agents that he would not serve time on the state charges, Johnson actively cooperated in the bribery investigation while awaiting retrial. Playing an important role in their investigation, his cooperation eventually helped in securing Swainson's criminal conviction and resignation from the bench. ⁴

At the insistence of federal agents, Johnson did not advise his own defense counsel of his key role and cooperation in the Swainson investigation until after retrial and sentencing. In 1974, Johnson was convicted and sentenced to the maximum term of confinement permitted by statute. ⁵ The judgment was affirmed by the Michigan Court of Appeals. People v. Whalen, 65 Mich.App. 687, 238 N.W.2d 376 (1975). The Michigan Supreme Court denied Johnson's motion for recusal (brought on the ground of the Court's prior association with former Justice Swainson), and denied Johnson's application for leave to appeal. People v. Whalen, 395 Mich. 827 (1976).

In 1976, Johnson petitioned for a writ of habeas corpus in federal district court for the Eastern District of Michigan. Transferred shortly thereafter to a federal correctional The district court in California first dismissed the petition, but later vacated that dismissal. It then stayed its proceedings to permit Johnson to seek relief on unexhausted claims in the Michigan state courts. The state court modified Johnson's sentence to a term of probation, finding that the promises of federal officials, while unenforceable, should nevertheless be honored as a matter of "simple justice." The Michigan Court of Appeals affirmed, but the Michigan Supreme Court, after denying Johnson's motion for recusal, reversed the trial court's order and reinstated Johnson's original sentence. People v. Whalen, 412 Mich. 166, 312 N.W.2d 638 (1981).

                facility in California, Johnson filed the instant petition in the Southern District of California a year later.  Although the Michigan district court denied the state's motion to dismiss with respect to two of Johnson's six claims, Whalen v. Johnson, 438 F.Supp. 1198 (E.D.Mich.1977), the Michigan petition was later dismissed with prejudice at Johnson's request.   Whalen v. Johnson, 452 F.Supp. 556 (E.D.Mich.1978)
                

An evidentiary hearing followed in the district court below on what the court characterized as the sole remaining issues: whether Johnson's due process rights had been violated either (1) when federal agents failed to keep their promise that he would serve no time on state charges; or (2) when the Michigan Supreme Court, despite its prior association with Justice Swainson, refused to recuse itself. Unpersuaded by either claim, the court denied Johnson's petition.

DISCUSSION

A. California Petition

The district court declined to find that Johnson had been denied due process either by virtue of the failure of federal agents to fulfill their promises, or, in what the court characterized as a related point, the failure of the state trial court to take those promises and Johnson's cooperation into account before sentencing. ⁶ We affirm these rulings of the district court. We find it necessary, however, to remand the case to the district court for further proceedings to determine whether Johnson was denied effective assistance of counsel in the Michigan prosecution.

The Michigan Supreme Court found that FBI agents "had indeed promised [Johnson] that he 'would do no time' for his Michigan convictions if he provided informant services, and that [he] did provide such services...." People v. Whalen, 412 Mich. 166, 168, 312 N.W.2d 638, 639 (1981). The Court also found that Johnson "was instructed to tell no one" of his agreement to cooperate and, as a result, neither defense counsel nor the trial judge appreciated that such promises had been made. Id.

As a general rule, fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971); United States v. Hudson, 609 F.2d 1326, 1328 (9th Cir.1979); United States v. Goodrich, 493 F.2d 390, 393 (9th Cir.1974). That rule, however, is typically subject to two conditions: (1) the agent must be authorized to make the promise; and (2) the defendant must rely to his detriment on that promise. Hudson, 609 F.2d at 1329; Goodrich, 493 F.2d at 393.

Assuming, arguendo, that Johnson did detrimentally rely upon this promise, ⁷ he has nevertheless failed to meet his burden of establishing that the agents' promise was properly authorized. See United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir.1960) (burden of persuasion is on habeas petitioner to show Nor does Johnson cite authority for the novel proposition that the unauthorized promises of federal agents are binding in state judicial proceedings. State agents are without authority to bind federal proceedings, see United States v. McIntosh, 612 F.2d 835, 837 (4th Cir.1979); United States v. Long, 511 F.2d 878, 881-82 (7th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975), and the converse is no less true. In the absence of authorization, the promises made by federal agents in this case do not bar the reinstatement of Johnson's original sentence by the Michigan Supreme Court. People v. Whalen, 412 Mich. 166, 312 N.W.2d 638 (1981). ⁹

                false promises induced guilty plea). 8   Nothing in the record suggests that federal agents were authorized by state authorities to promise that Johnson would serve no time on state charges.  Quite the contrary, the record is replete with references to the need of federal officials to keep state officials totally unaware of Johnson's cooperation
                

We are also unable to find a constitutional violation in the failure of the state trial court to take these unauthorized federal promises or Johnson's cooperation with federal officials into account before sentencing. Reliance upon Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), is misplaced. There, information before the sentencing judge was untrue. Here, it was simply incomplete, and incomplete as a result of Johnson's own concealment. Although the inducement prompting this concealment may arguably have violated Johnson's sixth amendment right to the effective assistance of counsel, see Part C infra, the concealment itself reflects Johnson's independent calculation that remaining silent, given federal promises, would be in his own best interest. Under these circumstances, there was no violation of due process. ¹⁰

B. Effect of Prior Michigan Petition

In Johnson's previous habeas petition in the Eastern District of Michigan, the district court dismissed four of Johnson's six claims pursuant to Fed.R.Civ.P. 12(b)(6). Whalen v. Johnson, 438 F.Supp. at 1205. The court declined, however, to dismiss Johnson's claim that he was denied the effective assistance of counsel by heeding the caution of federal agents not to reveal his cooperation to his attorney. ¹¹ Instead, the court noted that "[f]urther development of the record is necessary to determine whether petitioner was so instructed by federal officials and if his reliance upon such instructions was justified." Id. (footnote omitted). ¹²

While this Michigan petition was still pending, Johnson filed the instant petition in the Southern District of California. With the exception of a new claim that the failure of federal agents to fulfill their promise violated his right to due process of law, this second petition set forth essentially the same contentions as those pending in Michigan. Johnson's request for dismissal of his Michigan petition without prejudice was denied. See 452 F.Supp. at 558. After inquiring, however, "whether dismissal of his Michigan petition would bar...