Key v. U.S.

• Decision Date: 30 January 1987
• Docket Number: No. 86-2010,86-2010
• Citation: 806 F.2d 133
• Parties: Bobby J. KEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 133

806 F.2d 133

Bobby J. KEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 86-2010.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1986.

Decided Nov. 24, 1986.

Rehearing Denied Jan. 30, 1987.

Dennis L. Thomas, Jr., Bookwalter & Thomas, Indianapolis, Ind., for petition-appellant.

Robert C. Perry, Asst. U.S. Atty., Indianapolis, Ind., for respondent-appellee.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

Petitioner Bobby J. Key filed a section 2255 motion in federal district court asking that his conviction of conspiracy to defraud the United States Government be set aside. Key claims that the United States Attorney breached the plea agreement because the I.R.S. later filed a jeopardy assessment, that permitted the I.R.S. to assess and collect the tax immediately without the usual formalities. Key alleges that the government thereby breached two implicit terms in the agreement because it promised not to interfere in a pending $2,000,000 loan Key was arranging and not to prosecute Key for any other related offenses. Petitioner also alleges that his guilty plea was not voluntarily entered into and that he was denied the effective assistance of counsel. In addition, Key argues that the district court erred in not granting him an evidentiary hearing under 28 U.S.C. Sec. 2255. We agree with the district court that petitioner's first claim is meritless. We hold that Key's plea was voluntarily entered into, that he was not denied the effective assistance of counsel, and that the district court did not abuse its discretion in denying Key an evidentiary hearing on his section 2255 motion.

I.

On April 17, 1984, Key and six other individuals were named as defendants in an eleven count indictment charging various tax offenses. Key was named in all eleven of the counts, and thus faced more than thirty years of incarceration. After four days of trial, Key and several of the other defendants, pursuant to negotiated plea agreements reached with the government, agreed to enter pleas of guilty to various charges. Their guilty pleas were entered on October 26, 1984. The I.R.S. filed a jeopardy assessment on October 30, 1984. On January 30, 1985, the petitioner was sentenced to a term of three years and ordered to pay a fine of $15,000. Key did not appeal his sentence.

On December 20, 1985, Key filed this motion under 28 U.S.C. Sec. 2255. ¹ On March 20, 1986, petitioner filed a Rule 32(d) motion to set aside his plea. The district court denied the defendant's two motions. The Rule 32(d) motion was denied as not being timely filed.

II.

In this collateral attack, Key first alleges that certain representations were made to him that were not incorporated into the written plea agreement. Petitioner alleges the government promised him that it would not interfere with a $2,000,000 loan from BancAmerica that was then pending. The jeopardy assessment, which apparently interfered with the loan closing, was filed immediately following the entering of the plea agreement. Key argues that because no jeopardy assessment was ever mentioned, the government breached an implicit term not to prosecute Key for any other related offenses.

We agree with the district court that the allegation that the plea agreement was breached was merely "another attempt by Mr. Key to belatedly avoid the consequences of a voluntary plea of guilty." United States v. Key, No. IP 84-37-CR (S.D.Ind. May 14, 1986) (order denying 28 U.S.C. Sec. 2255 motion). The petitioner's "Petition to Enter Plea of Guilty," which Key signed, states "no officer or agent of any branch of government, nor any other person, has made [a] promise or suggestion of any kind to me...." Moreover, we agree with the trial court that the defendant's allegations are not supported by the record. Key's assertion that the government, by filing the jeopardy assessment, breached an implied promise not to interfere with the BancAmerica loan is unsupported by the record. Furthermore, there is no basis in the agreement itself to support defendant's assertion that the plea agreement included promises that his loan would close. Finally, Key did not raise this issue at the disposition proceeding, which was held 90 days after the jeopardy assessment was filed against Key. We therefore find that petitioner's claim that the United States breached the plea agreement to be meritless.

III. Rule 11

A guilty plea must be both a knowing and voluntary act. Hill v. Lockhart, --- U.S. ----, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). To ensure this, Federal Rule of Criminal Procedure 11(d) ² requires that the trial judge ask the defendant specific questions concerning the voluntariness of the plea agreement. This questioning creates a record that can be used in future appeals and collateral attacks. Furthermore, the record is entitled to a presumption of verity. Petitioner alleges that his plea was not voluntarily entered into. Key bases this argument on allegations that counsel made promises to him concerning parole. We find that the record presumptively refutes this proposition. Because petitioner has not overcome this presumption, we reject his contention.

Rule 11 "provides protection for those who voluntarily choose to waive their constitutional right to a trial by pleading guilty while ensuring an adequate record to insulate the plea from appellate and collateral attacks." Haase, 800 F.2d 123, 126-27; see generally Downs-Morgan v. United States, 765 F.2d 1534, 1537-38 (11th Cir.1985) (general discussion of Rule 11). Rule 11 ensures a colloquy that "exposes the defendant's state of mind in the record through personal interrogation." United States v. Fountain, 777 F.2d 351, 356 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). Furthermore, the defendant's knowledge, understanding, and acknowledgement of the offense to which he is pleading is made a part of the record.

The Rule 11 questioning has special importance to collateral proceedings. In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), the court, citing Blackledge v. Allison, 431 U.S. 63, 73-4, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), stated "that the representations of the defendant [at a plea hearing] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding." Thompson, 787 F.2d at 1460. Moreover, the petitioner's "declarations in open court carry a strong presumption of verity." Id., citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629.

We are mindful that some courts have found that a defendant is bound by his answers to the court's Rule 11 questioning. See, e.g., Rogers v. Maggio, 714 F.2d 35, 38-39 n. 5 (5th Cir.1983) ("[The defendant] is bound by that answer in his claim for federal habeas relief and is therefore not entitled to an evidentiary hearing on the issue of whether he was coerced into pleading guilty. Moya v. Estelle, 696 F.2d 329, 332-33 (5th Cir.1983)"). We disagree that a defendant should forever be bound by his responses to a court's Rule 11 questioning. However, where the record, as in this case, reflects that the defendant voluntarily entered into the plea, and, as here, the section 2255 motion does not clearly present new specific allegations, then no section 2255 evidentiary hearing is required.

We are convinced that after viewing the record in this case, the petitioner's plea was voluntarily entered into. ³ Thus, it was not reversible error for the district court to deny Key an evidentiary hearing on the issue of the voluntariness of his plea. Key has not overcome the presumptive aspect of the Rule 11 questioning between himself and the trial court.

We considered adopting a requirement that the trial judge specifically ask the defendant whether or not his attorney discussed the possibility of parole. However, Rule 11 does not require such questioning. ⁴ All that Rule 11 requires is that the defendant be asked whether or not "promises apart from the plea agreement" were made. Nonetheless, we feel that such questions are appropriate. Such questioning will promote a truly beneficial colloquy between the trial court and the defendant. We said in United States v. Fountain, 777 F.2d 351 (7th Cir.1985), that "[w]hatever the exact nature of the colloquy it is essential that it be meaningful." Id. at 356 (emphasis added). A line of questioning that seeks out statements made to the defendant by his or her counsel would add to the factual basis for the plea. Furthermore, this added information in the trial record would facilitate the determination of the voluntariness of the plea in subsequent post-conviction proceedings. See id. at 356. Of course, simple affirmative or negative answers to this suggested line of questioning are insufficient to fully elucidate the defendant's state of mind. Id.

Thus, we urge district courts to inquire as to whether defense counsel has made any promises regarding sentencing to a defendant. Indeed, had such a colloquy existed at the trial level, we might not be addressing this issue on appeal.

IV.

Key asserts that his trial counsel's erroneous advice ⁵ as to the time of his release was, for Sixth Amendment purposes, ineffective assistance of counsel. We are ever mindful that the Sixth Amendment guarantee of a right to counsel "must necessarily include the right to effective assistance of counsel." Johnson v. Duckworth, 793 F.2d 898, 899 (7th Cir.1986). Nevertheless, we hold that the recent Supreme Court case of Hill v. Lockhart, supra, is dispositive, and we therefore reject petitioner's claims.

In Hill, the Court...