Peavy v. U.S.

• Decision Date: 03 August 1994
• Docket Number: No. 93-3667,93-3667
• Citation: 31 F.3d 1341
• Parties: Edwin PEAVY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1341

31 F.3d 1341

Edwin PEAVY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 93-3667.

United States Court of Appeals Sixth Circuit.

Argued March 17, 1994.

Decided Aug. 3, 1994.

Robert A. Ruggeri (argued and briefed), Cleveland, OH, for petitioner-appellant.

Ronald B. Bakeman, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Cleveland, OH, for respondent-appellee.

Before: KEITH and BATCHELDER, Circuit Judges; and JOINER, ^* Senior District Judge.

JOINER, Senior District Judge, delivered the opinion of the court, in which KEITH, Circuit Judge, joined.

BATCHELDER, Circuit Judge (pp. 1347-50), delivered a separate dissenting opinion.

JOINER, Senior District Judge.

Edwin Peavy appeals the summary dismissal of his motion to vacate sentence under 28 U.S.C. Sec. 2255. We conclude that the factual record developed in the district court provided insufficient basis for the summary dismissal of Peavy's motion. We therefore reverse and remand for an evidentiary hearing, subject to the limitations we delineate herein.

I.

A. Guilty Plea and Sentence

In 1989, Peavy was charged in a two-count indictment with cocaine distribution offenses under 21 U.S.C. Sec. 841(a)(1). Peavy pled guilty to one of the two counts pursuant to a plea agreement which set forth the applicable guidelines offense level and the parties' agreement that "the role in offense adjustment, the obstruction adjustment, and the special career offender/criminal livelihood provisions are not applicable." The written plea agreement makes no mention of any promise on Peavy's part to cooperate in ongoing investigations. The agreement further states:

This is the entire Plea Agreement between the defendant and the United States of America and has been entered into by the defendant knowingly, freely, voluntarily, and without threats from anyone, after due consultation with his undersigned attorney. No alteration of any term of this Agreement may be made except as set forth in writing and agreed to by the parties.

(Emphasis added.)

At the plea hearing, Peavy was asked whether anyone promised him or threatened him to enter a guilty plea, and Peavy answered yes. The court then inquired whether there was a Rule 11 understanding, and Peavy again answered yes. At the court's request, the assistant United States attorney recited the applicable sentencing terms, consistent with those set forth in the written plea agreement. The court then asked Peavy, "You understand that to be the Rule 11 agreement?" and Peavy answered yes. The court did not inquire whether there were any other promises or inducements.

At no time during the plea hearing did Peavy's attorney or the assistant United States attorney disclose to the court that Peavy had agreed to cooperate with the government in exchange for sentencing concessions, and that court was to be informed of this cooperation at sentencing. Nonetheless, at sentencing, the court alluded to an in-chambers conference during which Peavy's cooperation with the government was disclosed. The court then sentenced Peavy to a term of 92 months, the lowest sentence in the applicable range, first noting that a higher sentence could have been applicable.

B. Post-Conviction Motions

Two years later, Peavy filed a motion to withdraw his plea under Fed.R.Crim.P. 32(d), alleging that prior to entering into the written plea agreement, he had been told by two FBI agents that if he cooperated in ongoing investigations, the United States attorney's office would file a Rule 35 ¹ motion within a year of sentencing, seeking the reduction of his sentence, and that ultimately he would serve only two years of whatever sentence was imposed. Peavy further stated that the written plea agreement did not contain all of the agreed-upon terms because of a concern that Peavy's safety and that of his wife and children would be jeopardized if his cooperation became known. Peavy claimed that he cooperated as requested during this period, and that the government had breached the agreement. Peavy's motion was supported by the affidavit of Peavy's attorney, who had represented him at the plea and sentencing, and who claimed to have been present when the agents made the promise.

The government responded to Peavy's Rule 32(d) motion, properly requesting that it be considered a Sec. 2255 motion, ² and stating that the FBI agents denied that they made promises as alleged by Peavy and his counsel. The government's response was neither verified nor supported by affidavits. In opposing Peavy's motion, the government placed no reliance on the written plea agreement and the clause quoted above, and, in fact, stated that there was no written agreement between the parties. Instead, the government contended that an oral plea agreement required Peavy's cooperation, and that the government had agreed to inform the court at sentencing of Peavy's cooperation and to not seek any sentencing enhancements. The government claimed to have fully honored these obligations.

To support its assertion that the FBI agents did not make the disputed promises, the government explained a series of events that post-dated Peavy's sentence. The government disclosed that Peavy's cooperation had resulted in the indictments of four persons, three of whom had been tried and convicted by the time Peavy pled guilty. The fourth individual was apprehended later and tried in Detroit. Peavy's cooperation was sought, but he did not testify at the trial. The Ohio assistant United States attorney told Peavy at the time that if the Michigan assistant United States attorney recommended a Rule 35 motion, that the Ohio office would "consider" such a request. The Michigan office made no recommendation, and the Ohio office made no motion. The government contended that the fact that Peavy's counsel did not raise the alleged promises by the FBI agents while these matters were being discussed indicated that no promises were made.

Seven months later, when the court had not responded to the first motion, Peavy filed a motion to vacate, set aside or correct an order of sentence under 28 U.S.C. Sec. 2255. This motion incorporated the earlier Rule 32 motion, and explained Peavy's initial reluctance to testify at the Detroit trial of the fourth suspect. Peavy asserted that his wife had been warned that his service as an informant was known, and that he was justifiably concerned for his family's safety. Peavy nonetheless agreed to testify, and was moved to the Detroit area several times, accompanied by counsel on at least one occasion. According to Peavy, the government concluded that his testimony was not needed.

The government responded to Peavy's Sec. 2255 motion by incorporating its response to the Rule 32 motion. Like its predecessor, this response was neither verified nor supported by affidavits. The court then entered a marginal entry order denying Peavy's motion. Peavy moved to reconsider, stating that he was entitled to a hearing under Sec. 2255, and arguing that the court disregarded the only evidence on the motion, the affidavit of his attorney.

The court denied the motion for reconsideration in an opinion, erroneously stating that Peavy's written plea agreement contained an agreement to cooperate in exchange for the government's promise to not seek sentencing enhancements. Placing exclusive reliance on the government's unverified response, the court then detailed the cooperation rendered and the sentence imposed, as well as the government's explanation of the Detroit trial and Peavy's failure to testify at that trial. The court further stated that the FBI agents denied making the promises alleged by Peavy, although the record contained no affidavits setting forth this denial. The court stated that Peavy had presented no evidence to indicate that the government did not adhere to the plea agreement, and no evidence that the agents were authorized to make a deal with Peavy.

II.

Peavy requests alternative relief. First, he asks us to find that the government breached a promise which induced the guilty plea and to either enforce the promise or allow him to withdraw his plea. In the alternative, Peavy asks us to remand the case to the district court for a hearing, so that the factual issues can be resolved. Just as the record provided insufficient basis for the district court to find that Peavy's plea was not induced by the FBI agents' alleged promises, it is insufficient for this court to find the opposite. Thus, the principal issue is whether Peavy was entitled to a hearing. We also address Peavy's claim that he is entitled to specific performance of the agents' alleged promise.

A. Hearing

"A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971).

The proper procedure by which to challenge a federal plea-based conviction is pursuant to 28 U.S.C. Sec. 2255, which provides in pertinent part:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

(Emphasis added.) The critical question is whether the petitioner's allegations, when viewed against the record of the plea hearing, are so "palpably incredible" or so "patently frivolous" as to warrant summary dismissal without a hearing. Blackledge v. Allison, 431...