U.S. v. Butt
| Decision Date | 30 March 1984 |
| Docket Number | No. 83-1240,83-1240 |
| Citation | 731 F.2d 75 |
| Parties | UNITED STATES of America, Appellee, v. Mohammed Y. BUTT, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Mohammed Y. Butt, pro se.
Jose A. Quiles, Acting U.S. Atty., Hato Rey, P.R. and Charles E. Fitzwilliam, Asst. U.S. Atty., San Juan, P.R., on brief for appellee.
Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.
Mohammed Y. Butt appeals the denial of his pro se motion, under 28 U.S.C. Sec. 2255, to vacate the sentence imposed after he entered a guilty plea. The motion challenged the competency of his retained counsel and alleged a violation of the plea bargain. The government answered, inter alia, that petitioner's prior post-conviction motions to reduce sentence, under Fed.R.Crim.P. 35, stated identical grounds and had been denied. 1 Without holding an evidentiary hearing, the district court entered a summary denial of Butt's Sec. 2255 motion. We affirm.
In March, 1981, the appellant, a Canadian, was arrested at the International Airport in Puerto Rico after his briefcase was found to contain cocaine. He was subsequently indicted under 21 U.S.C. Sec. 841(a)(1) for possession with intent to distribute, and under 21 U.S.C. Sec. 952 for unlawful importation of cocaine. After an initial plea of not guilty to both counts, Butt executed, and his attorney, Saul Duprey, certified a "Petition to Enter a Plea of Guilty," (hereinafter, "Plea Petition"), a printed form in which Butt pleaded guilty to Count One. At the concurrent change of plea proceeding, the Court actively questioned the appellant, the defense attorney and the government regarding the plea bargain. The government disclosed its agreement to drop Count Two and recommended a three and one half year sentence and two thousand dollar fine. In June, 1981, Butt was sentenced to an eight year term and fined two thousand dollars. A statutorily mandated three year special parole term was also imposed. The sentence was well inside the statutory maximum.
In September, 1981, Butt filed a pro se motion under Fed.R.Crim.P. 35 to reduce sentence, charging inadequate assistance of counsel and plea bargain violations. In October, 1981, Attorney Duprey, filed a second Rule 35 motion to reduce the sentence. The district court ordered both the government and Duprey to respond to the pro se motion, and in December, 1981, held a hearing on both motions. 2 The defendant was not present. On February 2, 1982 the district court denied the motions and found Butt's allegations frivolous. The Sec. 2255 motion, filed February 25, 1982, was denied on February 18, 1983.
A Sec. 2255 motion which is facially inadequate may be summarily denied, i.e., motions stating nonconstitutional grounds, contentions which are "wholly incredible," or cognizable claims stating conclusions without specific and detailed supporting facts. Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514-515, 7 L.Ed.2d 473 (1962); Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974). Facially adequate Sec. 2255 claims may be summarily denied when the record conclusively contradicts them. Domenica v. United States, 292 F.2d 483, 484 (1st Cir.1961); Rule 4(b), Rules Governing Sec. 2255 Proceedings (Sec. 2255 Rules). Thus, presumptively adequate supporting factual allegations may prove untrue when the record is examined, or the record may reveal a course of conduct which warrants concluding that the petitioner's allegations are "patently frivolous or false," United States v. Cermark, 622 F.2d 1049, 1054 (1st Cir.1980). See Blackledge v. Allison, 431 U.S. 63, 78 n. 15, 97 S.Ct. 1621, 1631, 52 L.Ed.2d 136 (1977).
The district court may also make "its preliminary assessment on the motion's merits [based] on an expanded record that may include, 'in an appropriate case, even affidavits.' " Miller v. United States, 564 F.2d 103, 105 (1st Cir.1977), cert. denied, 435 U.S. 931, 98 S.Ct. 1504, 55 L.Ed.2d 528 (1978) (quoting Raines v. United States, 423 F.2d 526, 530 (4th Cir.1970)). However, material issues of fact may not be resolved against the petitioner solely by relying on ex parte, sworn or unsworn, statements of the government, Miller v United States, 564 F.2d at 106; United States v. Underwood, 577 F.2d 157, 159 (1st Cir.1978), or defense counsel, United States v. Pallotta, 433 F.2d 594, 595 (1st Cir.1970); Bender v. United States, 387 F.2d 628, 630 (1st Cir.1967) ().
An evidentiary hearing is required if the records and files in the case, or an expanded record, cannot conclusively resolve substantial issues of material fact, "and when the allegations made, if true, would require relief." United States v. Fournier, 594 F.2d 276, 279 (1st Cir.1979); DeVincent v. United States, 602 F.2d 1006, 1009 (1st Cir.1979); Rule 8(a), Sec. 2255 Rules. Cf. United States v. Crooker, 729 F.2d 889 (1st Cir.1984) (motion under Fed.R.Crim.P. 32(d)).
District Judge Pieras was assigned this case in September, 1982 after the death of Judge Pesquera, who had heard and decided all the prior proceedings. Judge Pieras entered a summary dismissal of the Sec. 2255 motion, without explanation, findings or conclusions of law. After having reviewed the record, we find no error in the final determination. The basis of the denial of a Sec. 2255 motion should, however, have been made clear on the record by the district court. United States v. Fournier, 594 F.2d 276, 279 (1st Cir.1979); Dario Sanchez v. United States, 256 F.2d 73, 76 (1st Cir.1958); see generally, Horizon's Titanium Corp. v. Norton Co., 290 F.2d 421, 424 (1st Cir.1961).
Judge Pesquera, who presided over the change-of-plea, sentencing and post-conviction hearings, had ordered the government to respond to appellant's Sec. 2255 motion. That answer recommended a dismissal without an evidentiary hearing and argued that Butt's "Plea Petition," the Fed.R.Crim.P. 11 hearing transcript, the post-conviction Rule 35 motions and responses, and the denial of those motions, were dispositive of the Sec. 2255 motion. The government supplemented its Sec. 2255 answer initially with a transcript of the hearing on the Rule 35 motions, and later, pursuant to this court's request, Fed.R.App.P. 10(e), supplied the transcript of the Rule 11 change-of-plea proceeding.
We treat these transcripts and the pre-Sec. 2255 motions and appended letters to Judge Pesquera as part of the record, Rule 7, Sec. 2255 Rules, "from which [we] review [Butt's] claim[s] and determine realistically whether there is any ground on which [he] could prevail." United States v. Cermark, 622 F.2d 1049, 1051 (1st Cir.1980).
Butt's Sec. 2255 motion sets out two inter-related grounds for relief. First, he asserts that his counsel misled him by assuring him that the judge had agreed to the plea bargain. Second, he alleges that, since he did not receive the sentence he had agreed to, the government violated the plea bargain.
Because misrepresentations of fact by an attorney in a plea bargaining context may induce a client to enter a plea of guilty, "this charge is more serious than a mere technical violation of the requirements of Rule 11." Marquis v. United States, 698 F.2d 13, 16 (1st Cir.1983). We, therefore, closely scrutinize Butt's claims. McAleney v. United States, 539 F.2d 282 (1st Cir.1976).
In order to state a claim of ineffective representation, the petitioner's allegations must clearly indicate the nature of defense attorney's prejudicial conduct. United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978). Here, Butt's claim that his attorney informed him that the judge was a party to the plea bargain, if proved, would demonstrate his attorney's ineffective assistance. For his Sec. 2255 petition to succeed, however, Butt would also have to show that he relied on that misinformation in entering his plea.
In contrast to the allegation of reliance in Butt's Sec. 2255 motion are the statements and declarations contained in the "Plea Petition" and the transcript of the change-of-plea proceeding. These documents, because they are contemporaneous with the entering of the change of plea, are highly relevant and competent evidence of the nature and extent of the plea bargain. The "Plea Petition," executed by Butt and filed the same day the plea of guilty was entered, contains these answers:
The defendant signed the "Plea Petition" in the presence of his attorney who, in an accompanying "certificate of counsel," stated that "to the best of my knowledge and belief" the defendant's declarations in the petition are "true and accurate," and that the plea of guilty is "voluntarily and understandingly made." At the Rule 11 hearing, defendant's attorney confirmed the plea agreement presented by the government.
The transcript of the Rule 11 proceeding reveals that the Court carefully questioned Butt before accepting the plea change:
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