U.S. v. McCord, 79-2333

• Decision Date: 06 June 1980
• Docket Number: No. 79-2333,79-2333
• Citation: 618 F.2d 389
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David C. McCORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 389

618 F.2d 389

UNITED STATES of America, Plaintiff-Appellee, v. David C. McCORD, Defendant-Appellant.

No. 79-2333.

United States Court of Appeals, Fifth Circuit.

June 6, 1980.

David C. McCord, pro se.

Douglas Edward Yeager, Dallas, Tex. (Court-appointed), for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Shirley Baccus-Lobel, H. Jay Ethington, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, FAY and TATE, Circuit Judges.

WISDOM, Circuit Judge:

This case raises the question whether the district court erred in denying, without conducting an evidentiary hearing, the prisoner David C. McCord's motion under 28 U.S.C. § 2255 to vacate his sentence. We conclude that the record in this case does not conclusively show that McCord was entitled to no relief. The district court, therefore, was required by section 2255 to conduct an evidentiary hearing to resolve the merits of McCord's allegations of a breach of a plea bargain. Accordingly, we vacate the district court's order and remand the case for an evidentiary hearing.

I.

McCord was indicted in July 1976 along with seven other persons in connection with a fraudulent scheme to sell worthless silver ore and mining options. The 16 count indictment charged the defendants with conspiracy, mail fraud, and wire fraud in violation of 18 U.S.C. §§ 1341, 1343 and 2314. McCord was taken into federal custody and held in the Dallas County Jail where he discussed the possibility of a plea bargain with two agents of the Federal Bureau of Investigation (FBI), Michael A. Clark and Thomas J. Kneir. According to McCord, the agents advised him that if he pleaded guilty to one count of the indictment and cooperated with the government in the cases against his co-defendants, the government would dismiss the remaining 15 counts of the indictment and guarantee him probation. McCord maintains that the plea offer was authorized by the Assistant United States Attorney in charge of the case, Harvey J. Ethington. McCord says he accepted the plea agreement and discussed the case at length with the agents while imprisoned. After McCord was released on bail, he furnished agents Clark and Kneir 31 documents relating to the defendants' fraudulent activities.

Several days later, McCord discussed the terms of the plea agreement for the first time with Assistant United States Attorney Ethington. Ethington denied that he had authorized agents Clark and Kneir to offer probation in return for a plea of guilty to one count of the indictment. Ethington said the government would consider only a plea of guilty to three counts of the indictment with no guarantee of probation. Agents Clark and Kneir were summoned to Ethington's office and in the presence of McCord they denied having offered McCord an opportunity to plead guilty to one count of the indictment or having guaranteed him probation.

McCord continued to cooperate with the government in its cases against his co-defendants. When rearraigned in August 1976, he pleaded guilty to three counts of the indictment. During McCord's Rule 11 hearing ¹ the United States Attorney recited the terms of the plea bargain: The government would permit McCord to plead guilty to three counts of the indictment in return for his cooperation in the cases against his co-defendants; the government had not offered McCord any specific minimum or probated sentence, or promised to recommend that the trial court treat McCord leniently. When questioned by the district judge, McCord stated that the United States Attorney's statement concerning the plea agreement was correct. He denied having been promised any other bargain. ² The district court accepted McCord's plea and sentenced him to a five-year term of imprisonment on each of two counts, to run consecutively, to be followed by five years of probation on the third count. McCord did not appeal his conviction.

In July 1978, McCord filed a civil action in the district court against the FBI and Agents Clark and Kneir to recover damages arising from the defendants' failure to honor the plea agreement negotiated in the Dallas County Jail. ³ The district court transferred this case to United States Magistrate John B. Tolle to conduct an evidentiary hearing and to make findings and recommendations for the disposition of the case. In September 1978, McCord moved pro se under 28 U.S.C. § 2255 to vacate his sentence. McCord's section 2255 petition alleged, among other things, that the government had failed to comply with the terms of the plea bargain he negotiated with Agents Clark and Kneir. The district court also referred McCord's section 2255 petition to United States Magistrate Tolle for consideration.

In March 1979, the defendants in the civil action filed a motion to dismiss McCord's complaint accompanied by affidavits of Agents Clark and Kneir. Agent Kneir's affidavit contradicted McCord's allegations regarding the terms of the plea agreement and the conversation of the FBI agents and McCord at the Dallas County Jail. Agent Clark's affidavit supported, in part, McCord's allegations in his civil complaint and in his section 2255 petition. According to Clark's affidavit, before he and Kneir interviewed McCord in the Dallas County Jail:

Assistant United States Attorney Ethington instructed me to advise (McCord) that if (he) would cooperate with the government, provide substantive information about the other defendants in the criminal case, and testify to same, that the Government would consider allowing him to plead guilty to one count of the indictment.

The Clark affidavit denied that McCord was guaranteed probation in return for his cooperation. McCord did not file a copy of the Clark affidavit in support of his section 2255 motion.

After the filing of the Clark affidavit in the civil action, Magistrate Tolle recommended to the district court that all relief requested in the section 2255 petition be denied. The Magistrate's findings and conclusions state that McCord's "allegations (of an unkept plea bargain) are in direct conflict with (his) sworn testimony at the time of his guilty plea and sentencing". The Magistrate's findings contain no reference to the Clark affidavit, but the Magistrate was aware of the affidavit because he had handled McCord's civil action. ⁴ On May 11, 1979, the district judge adopted, without conducting an evidentiary hearing, the Magistrate's recommendation that McCord's section 2255 motion be denied. Several months later the district court, in accordance with Magistrate Tolle's recommendation, entered judgment in favor of the United States in McCord's civil action. On appeal from the denial of his section 2255 petition, McCord argues that in light of Agent Clark's affidavit he was entitled to an evidentiary hearing on the issue whether the government failed to honor the original plea bargain.

II.

A conviction based on a guilty plea that has been induced by an unkept plea bargain is subject to collateral attack under 28 U.S.C. § 2255. Machibroda v. United States, 1962, 368 U.S. 487, 493-94, 82 S.Ct. 510, 513-514, 7 L.Ed.2d 473, 478; Bryan v. United States, 5 Cir. en banc 1974, 492 F.2d 775, 778. A federal prisoner who has moved to vacate a sentence under 28 U.S.C. § 2255 on the ground of an unkept plea bargain is entitled to a hearing "(u)nless the motion and files and records of the case conclusively show that the (petitioner) is entitled to no relief". 28 U.S.C. § 2255. The question is whether McCord's motion and the records in this case conclusively show that the government did not honor the terms of McCord's plea bargain. If not, McCord is entitled to an evidentiary hearing in the district court.

The Supreme Court has refused to apply a per se rule rendering guilty pleas invulnerable to subsequent challenge even when a § 2255 petitioner repudiates statements made to the sentencing judge at the time the plea was entered. Fontaine v. United States, 1973, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169, 172; Vandenades v. United States, 5 Cir. 1975, 523 F.2d 1220, 1223-24. A section 2255 petitioner, such as McCord, whose allegations of an unkept plea bargain are contradicted by his own solemn declarations in open court during a plea or sentencing hearing, faces a "barrier, (that) although imposing, is not invariably insurmountable". Blackledge v. Allison, 1977, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136, 147. As the Court stated in Blackledge :

In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.

431 U.S. at 75, 97 S.Ct. at 1630, 52 L.Ed.2d at 147-48. See Fontaine v. United States, 411 U.S. at 214-15, 93 S.Ct. at 1462-1463; Machibroda v. United States, 368 U.S. at 491-96, 82 S.Ct. at 511-515; United States v. Nuckols, 5 Cir. 1979, 606 F.2d 566, 569; Dugan v. United States, 5 Cir. 1975, 521 F.2d 231, 233-34. This Court, in applying Blackledge, has stated that because of the interest in finality in the criminal process, a defendant ordinarily will not be permitted to refute testimony given under oath at a plea or sentencing hearing. United States v. Sanderson, 5 Cir. 1979, 595 F.2d 1021, 1022. Accordingly, in Bryan v. United States, 5 Cir. en banc 1974, 492 F.2d 775, we held that a petitioner may not obtain an evidentiary hearing by merely alleging an unkept plea bargain. ⁵ When, however, a section 2255 petitioner presents more than uncorroborated assertions of a broken plea agreement, a different rule applies. See Dugan v. United States, 5 Cir. 1975, 521 F.2d 231.

In Dugan, a ...