          United States Court of Appeals
                        For the First Circuit

No. 09-1011

                            SCOTT FORSYTH,

                        Petitioner, Appellant,

                                  v.

                             LUIS SPENCER,
                    SUPERINTENDENT AT MCI NORFOLK,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

                       Boudin, Stahl and Lipez,
                           Circuit Judges.


     Victoria L. Nadel for appellant.
     Jessica V. Barnett, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.




                          February 16, 2010
              BOUDIN, Circuit Judge.      Scott Forsyth, appealing after a

denial of his petition for habeas corpus, is serving eight to ten

years in state prison for assault and battery with a dangerous

weapon, malicious destruction of property, and attempted arson.

His conviction stemmed from an incident at his mother's home in the

pre-dawn hours of September 10, 2000.          During an argument, Forsyth

took a nearby can of gasoline and chased his mother into the

kitchen with it; spilled gasoline all over the kitchen floor and

splashed it onto her head and shoulders; and threatened to set fire

to his mother, himself, and the house.

              When Forsyth's mother attempted a 911 call, Forsyth

pulled the phone from the wall, but police responded to the

interrupted      call.        Forsyth   was   thereafter    charged      in   the

Massachusetts Superior Court with assault with intent to murder and

the three lesser offenses listed above.           Just prior to proceedings

on December 19, 2000, an unrecorded lobby conference with the

presiding judge occurred to discuss a possible guilty plea and

sentence.      What was said in the conference is evidenced by later

affidavits submitted by the three individuals who attended it (in

addition to the judge): the prosecutor, Forsyth's plea counsel, and

a probation officer.

              From these affidavits and the later proceedings, it is

clear   the    parties   at    the   conference   could    not   agree   upon   a

recommended sentence; but they agreed that Forsyth would aim to


                                        -2-
plead guilty to the three less serious charges in exchange for the

Commonwealth's dismissal of the assault with intent to murder

charge; and they discussed obtaining for his sentencing a mental

health evaluation based on Forsyth's history of mental illness,

including bipolar disorder. None of the three affiants claims that

a specific sentence recommendation was promised by the prosecutor,

but recollections differ on what if anything was said as to

possible numbers.

                In her affidavit, Forsyth's plea counsel said that her

"memory [was] that the Commonwealth was willing to request a three

to five year term if the defendant was in agreement"; that absent

such       an   agreement   the   prosecutor   did   not   commit   to   any

recommendation; but that plea counsel thought the Commonwealth

would still recommend and the judge would accept a term in that

range.       The prosecutor and probation officer had no memory that a

three to five year term was mentioned, and the probation officer

remembered only that the prosecutor had said in the conference that

she "was going to recommend a lengthy period of incarceration."1




       1
           The prosecutor said the following:

       Although I have no specific memory of ever mentioning
       three to five years as a possible sentence, during
       preliminary negotiations I may have offered to try to get
       a three to five year sentence on an agreed plea. I never
       secured this recommendation by my office because the
       defendant made clear that he would not join in a
       sentencing recommendation.

                                      -3-
            After   the    lobby    conference,   Forsyth's    plea   counsel

conferred with Forsyth. Forsyth averred (in a 2003 affidavit) that

his plea counsel told him that "the lawyer for the government said

she would ask for three to five years of incarceration in the House

of Correction," but his plea counsel's affidavit states that she

"never told Mr. Forsyth that the Commonwealth would recommend at

most three to five years."         Instead, her affidavit says, she told

him only that a "three to five year term had been discussed, [but]

the Commonwealth had not guaranteed what its recommendation was

going to be."

            Forsyth then pled guilty to the three lesser charges

already listed and the Commonwealth dismissed the assault with

intent to murder charge.           The court made the usual inquiries to

assure that the plea was being entered voluntarily and with a basis

in fact.    The court also invited the prosecutor to list the maximum

penalties for each of the charges to which Forsyth was pleading

guilty and confirmed that Forsyth understood that the court could

impose     the   maximum    sentence     for   each   charge    and   do   so

consecutively.      Both in a signed, written waiver of rights and in

court, Forsyth confirmed that no promises had been made to induce

his plea.

            After a psychiatric evaluation, a sentencing hearing was

held on June 4, 2001. The Commonwealth recommended that Forsyth be

sentenced to eight to ten years in prison for assault and battery


                                       -4-
with a dangerous weapon.            The court accepted the Commonwealth's

recommendation, taking note of the seriousness of Forsyth's prior

criminal history, which included a previous attempt on his mother's

life in which he had stabbed her with a screwdriver.                       Forsyth

reacted angrily to the sentence but, at the time, did not assert

that       he   had   been   promised   or   assured   of   either   a   different

recommendation by the prosecutor or a different sentence.

                In July 2001, Forsyth filed motions to revise and revoke

his sentence.         That fall, he filed pro se a motion to withdraw his

plea, asserting in an affidavit that he "had a deal and copped out

to house time split with probation."             Thereafter, in 2003, Forsyth

(now aided by successor counsel) claimed in a new motion to

withdraw the plea that his plea counsel either "misunderstood the

Commonwealth's proposed recommendation or . . . misinformed Mr.

Forsyth of what that recommendation would be," and that Forsyth

"acted in reliance upon [his] attorney's representation of the

government's position."           It was at this point that Forsyth filed

the 2003 affidavit earlier quoted.2

                In response, the Commonwealth submitted the affidavits

(discussed above) of the prosecutor, Forsyth's plea counsel, and



       2
      Forsyth's new counsel had no personal knowledge of what
happened incident to the guilty plea but she stated, in an
accompanying affidavit of her own, that Forsyth's plea counsel had
told her that in the December 19 lobby conference "the Commonwealth
recommended a three to five year term and that the Court appeared
amenable to a House of Correction term followed by probation."

                                         -5-
the probation officer regarding the December 19 lobby conference

and Forsyth's conversation with plea counsel prior to entering his

guilty plea.   The trial judge denied the motions to revise the

sentence and to withdraw the guilty plea and denied a request for

an evidentiary hearing, saying that Forsyth's affidavit was "self-

serving," that he (the judge) "credit[ed] the affidavits" of the

prosecutor and Forsyth's plea counsel, and that the Commonwealth

had in fact told Forsyth's counsel that it intended to recommend "a

lengthy sentence."    The Massachusetts Appeals Court affirmed,

Commonwealth v. Forsyth, 868 N.E.2d 953, 2007 WL 1775200 (Mass.

App. Ct. 2007), and further review was denied, Commonwealth v.

Forsyth, 873 N.E.2d 247 (Mass. 2007).

          Forsyth then filed a federal habeas corpus petition,

arguing that his plea was based upon inaccurate and incomplete

information and therefore involuntary and that he had received

ineffective assistance of counsel.      A flawed plea may sometimes

comprise a due process violation, Boykin v. Alabama, 395 U.S. 238,

243 & n.5 (1969); inadequate counseling can also undermine due

process and Sixth Amendment rights where counsel's efforts do not

meet minimum standards and where the outcome was thereby affected.

Strickland v. Washington, 466 U.S. 668, 684-85, 687-96 (1984).

          Adopting a magistrate judge's report and recommendation,

the district court dismissed the petition.    Granted a certificate

of appealability, Forsyth has now renewed his constitutional claims


                               -6-
in this court: mainly he contends that his plea counsel misled him

into thinking that the prosecutor had promised to recommend a three

to five year prison sentence or at least predicted ineptly that the

Commonwealth would make such a recommendation.

          Our review of the district court's decision is de novo.

Pina v. Maloney, 565 F.3d 48, 52 (1st Cir. 2009).    The governing

federal habeas statute provides that a state decision may be

overturned--so far as it resolves factual issues--only if it is

"based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding."3   28 U.S.C.

§ 2254(d)(2) (2006).   As for federal legal issues decided by the

state court, they may be set aside only if the decision "was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court."   Id.

§ 2254(d)(1).

          The state courts credited the affidavit of Forsyth's plea

counsel; the key pertinent content amounted to this: that plea

counsel had told Forsyth that the prosecutor had not promised a


     3
      The petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). Rashad v. Walsh, 300 F.3d 27,
34 (1st Cir. 2002). A different provision of the statute requires
clear and convincing evidence from the petitioner in order to
defeat a state court factual finding, 28 U.S.C. § 2254(e)(1), but
we need not consider whether this standard applies because we find
that Forsyth cannot prevail even under the arguably less
deferential section 2254(d)(2) standard. Wood v. Allen, No. 08-
9156, 2010 WL 173369, at *6 & n.2 (U.S. Jan. 20, 2010); see John v.
Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender, 507 F.3d
50, 56-60 (1st Cir. 2007), cert. denied, 128 S. Ct. 1719 (2008).

                               -7-
specific recommendation and that plea counsel had never told him

that the recommended sentence would not exceed three to five years.

There is ample independent support in the record for plea counsel's

sworn statements and, while no single element is conclusive, the

collective evidence is powerfully supportive:

                 Cthe prosecutor swore that no such
          recommendation or commitment had been made to
          plea counsel;

                 Cthe probation officer recalled only
          that the prosecutor had said in the lobby
          conference that she was going to recommend a
          lengthy period of incarceration;

                 Cpetitioner represented both in the
          written waiver of rights and in open court
          that no promises had been made to secure his
          guilty plea;

                 Cwhen the prosecutor at sentencing later
          recommended the eight to ten year term,
          neither plea counsel nor petitioner responded
          that this was contrary to a commitment; and

                 Con pronouncement of the sentence,
          petitioner became quite angry, but did not say
          that he had been told of any commitment by the
          prosecutor to recommend a shorter sentence.

          True, Forsyth later asserted that he was told that the

prosecutor would recommend the three to five year sentence, but

such professions are not uncommon when a tough sentence is imposed,

and in this case they were belated.   True, his successor defense

counsel attested to a supposed admission by plea counsel (see note

2, above); but assuming plea counsel said what is recounted, it

looks to be little more than a reference to a possible proposed


                               -8-
deal--a joint recommendation for three to five years--that was

never pursued.

            In all events, the state court credited plea counsel and

the prosecutor and declined to credit Forsyth.                     Certainly Forsyth

fails to establish that the state court erred in finding no promise

or commitment by the prosecutor existed and in finding plea counsel

did not lead Forsyth to believe the contrary, still less that the

state court's decision was "based on an unreasonable determination

of the facts."      28 U.S.C. § 2254(d)(2).          His due process claim thus

fails insofar as it rests on the premise that plea counsel provided

false information about the prosecutor's commitments or intentions.

            Nor     was    the   district        court     required    to    hold   an

independent       evidentiary        hearing    to   try     the    issues    already

determined by the state courts.                Pina, 565 F.3d at 54; Teti, 507

F.3d at 60-63.       Forsyth has offered no reason to believe that,

"with the benefit of an evidentiary hearing, [he could] develop a

factual record that would entitle him to habeas relief."                      Schriro

v. Landrigan, 550 U.S. 465, 475 (2007).              The district court did not

abuse its discretion in declining to hold an evidentiary hearing.

            Forsyth presses on appeal a separate claim that plea

counsel advised Forsyth that a three to five year sentence was the

maximum likely sentence that would be recommended or that the judge

would impose, thereby offering advice that was incompetent and

depriving   Forsyth       of   the    constitutionally        required       effective


                                         -9-
assistance of counsel.    The factual premise for this claim is not

well developed and the claim itself may not have been preserved.

But the short answer is that if plea counsel did prophesy that the

term of three to five years would likely be recommended, imposed or

both, it was hardly an incompetent conjecture.

             A defense counsel is entitled to offer to a client

pondering a plea counsel's reasonable best guess as to a likely

sentence.4    Here, the possibility of a joint three to five year

recommendation as part of the plea package may well have been

discussed between counsel; Forsyth's medical history offered some

prospect that the judge might be sympathetic; his mother, the

victim, opposed incarceration; and the Commonwealth's non-binding

proposed sentencing guidelines were favorable to Forsyth.        If

counsel offered such a prediction, she was not incompetent in doing

so.   Strickland, 466 U.S. at 687-91.

             Forsyth separately argues that his plea counsel should

have alerted the court to the pre-plea negotiations as a mitigation

factor at sentencing, but he offers no legal analysis or reason why

this would have affected his sentence; indeed, the judge was already



      4
      See Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994)
("[A]n inaccurate prediction about sentencing will generally not
alone be sufficient to sustain a claim of ineffective assistance of
counsel."); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir.
1970) ("[A] mere prediction by counsel of the court's likely
attitude on sentence, short of some implication of an agreement or
understanding, is not ground for attacking a plea." (internal
quotation marks omitted)).

                                -10-
aware of negotiations, having attended the lobby conference at which

they occurred. Forsyth has also moved to supplement the record, but

the documents to which he refers are already in the record and have

been considered.    We affirm the district court's judgment and

dismiss the motion to supplement as moot.

           It is so ordered.




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