
USCA1 Opinion

	




          December 12, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1155                                             GERALD W. CLEMENTE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Gerald W. Clemente on brief pro se.               __________________               Donald  K.  Stern,  United  States  Attorney, and  Alexandra               _________________                                  _________          Leake, Assistant U.S. Attorney, on brief for appellee.          _____                                  __________________                                  __________________                                  Per  Curiam.      George W.  Clemente  appeals  the                      ___________            summary  denial  of his    2255  motion  for relief  from the            sentence imposed upon his guilty plea.  We affirm.                      Clemente  is  a   former  police  captain   in  the            Metropolitan District Commission Police.   In April, 1986, he            admitted  to masterminding  a long-standing  scheme to  steal            advance copies of civil service examinations and sell them to            policemen  around the state  so they  could cheat  and obtain            fraudulent  promotions.   Pursuant  to  a  plea bargain  with            federal and  state prosecutors, Clemente  agreed to cooperate            with  the  authorities in  exchange  for various  concessions            relating to pending and future charges, and the conditions of            his  confinement.   As  part  of the  bargain,  Clemente pled            guilty  to a single count of racketeering in violation of the            Racketeer Influenced and Corrupt Organizations Act (RICO), 18            U.S.C.     1962.    The  crime  carried  a  maximum  possible            imprisonment penalty of twenty years.                         The  government  agreed   to  recommend,  and  did            recommend, imposition  of a twenty-year sentence  on the RICO            charge  to  run  concurrently  with a  state  sentence  which            Clemente was already serving for  an unrelated theft from the            Depositors Trust  Company in Malden.  The  district court did            not choose to follow  the government's recommendation in this            regard, however,  instead sentencing Clemente  to a  fifteen-            year  term for his federal crime, to begin upon completion of                                         -3-            the state sentence.           This   is   Clemente's    third            assault  in  federal  court  on the  consecutiveness  of  his            sentence.    In  a  direct  appeal  from  imposition  of  the            sentence,  he argued  that the  government breached  the plea            agreement by  failing to repeat the  recommendation orally at            the sentencing hearing.  Finding no breach of  the agreement,            "either in  its letter  or spirit,"  this court affirmed  the            sentence.  United  States v.  Doherty, 867 F.2d  47, 72  (1st                       ______________     _______            Cir.), cert. denied, 492 U.S. 918 (1989).                   ____________                      Shortly  thereafter, Clemente moved in the district            court for a reduction of the  sentence under Fed. R. Crim. P.            35(b), arguing that its effect was to unfairly require him to            serve  a  minimum of  thirty  years in  state  custody before            commencing his federal term.   The government again joined in            urging  the  court  to  revise  Clemente's  sentence  to  run            concurrently  with the  state  sentence.   In an  independent            review, the  court found  Clemente's argument "to  be utterly            without substance."   United States v. Clemente, 729 F. Supp.                                  _____________    ________            165, 167 (D.  Mass. 1990).   In reaching  this decision,  the            court clearly  explained its  reasoning under  the sentencing            laws  applicable to Clemente's terms of imprisonment.                  Under his state sentence, Clemente  is eligible for                 parole after  serving one-third of his minimum term                 of confinement.   He  presently has a  state parole                 eligibility date  of December  7, 1995.   Under the                 law in  effect at the  time this Court  imposed its                 federal  sentence  on  Clemente,  he   will  become                 eligible  for parole after serving one-third of his                 federal sentence, in this case  five years.  Even a                                         -4-                 twenty year concurrent federal sentence (it will be                 remembered  that  this  Court  imposed  a  15  year                 sentence upon Mr. Clemente) would place his federal                 release  date sometime  before  December  7,  1995,                 resulting in  no time whatsoever  being served  for                 the extraordinarily serious racketeering offense of                 which he has been convicted.            Id.   Then,  after carefully revisiting the equities  and the            ___            law  and,   though  not  required  to,   consulting  the  new            sentencing guidelines  for purposes of comparison,  the court            again concluded that the  sentence imposed was just.   Id. at                                                                   ___            170.  Clemente did not appeal.                       Presumably spurred  by the approach  of his  state            parole eligibility date, Clemente now collaterally renews his            quest  for  a  concurrent   sentence  with  an  argument  not            previously  urged.   He  now  argues  that the  prosecution's            promise  to  recommend  imposition of  a  concurrent  federal            sentence was void ab initio, because the sentencing court did                              __ ______            not have the  "power" to impose such a sentence under the law            applicable to  his  crime.   For  crimes committed  prior  to            November 1,  1987, there is no formal mechanism for providing            that a federal sentence  will be served concurrently  with an            existing state sentence.1   Generally, a sentencing court may            achieve this  result only  by "recommending" to  the Attorney            General that the Bureau of Prisons designate the state prison                                            ____________________            1.  For offenses committed after  November 1, 1987, 18 U.S.C.              3584(a) (1984), now expressly authorizes the district court            to impose concurrent sentences.  See H.R. Rep. No. 1030, 98th                                             ___            Cong.  2d Sess. 126-27, reprinted  in 1984 U.S.  Code Cong. &                                    _____________            Ad. News 3309-10 [House Report].                                          -5-            as  the  place  of confinement  for  service  of the  federal            sentence.   See 18 U.S.C.   4082(b) (1982)2; James B. Eaglin,                        ___            Sentencing  Federal  Offenders  for Crimes  Committed  Before            _____________________________________________________________            November  1,  1987  at  6-7 (Federal  Judicial  Center  1991)            __________________            [Eaglin,  Sentencing].   In the  absence of  a recommendation                      __________            from the district court, however, the sentence will be served            in a  federal prison  and automatically run  consecutively to            the  unexpired   state  sentence.    See   United  States  v.                                                 ___   ______________            Pungitore, 910  F.2d 1084, 1119 (3d Cir. 1990), cert. denied,            _________                                       ____________            500 U.S. 915 (1991); Eaglin, Sentencing at 7.3                                          __________                      In Clemente's view,  this legal anomaly  brings his            case  within a principle we have long recognized: that a plea            agreement will  be set  aside  if induced  by a  prosecutor's                                            ____________________            2.  As applied to crimes committed prior to November 1, 1987,               4082(a),  has been  construed  to mean  that  the Attorney            General  has the  sole  authority to  designate the  place of            confinement.   See, e.g., United States v. Williams, 651 F.2d                           _________  _____________    ________            644, 647 (9th  Cir. 1981);  United States v.  Naas, 755  F.2d                                        _____________     ____            1133, 1137 (5th Cir.  1985); United States v. Huss,  520 F.2d                                         _____________    ____            598  (2d Cir. 1975); United  States v. Janiec,  505 F.2d 983,                                 ______________    ______            987-88  (3d Cir.  1974), cert. denied,  420 U.S.  948 (1975);                                     ____________            United States v.  Herb, 436  F.2d 566, 567  (6th Cir.  1971).            _____________     ____            This authority was delegated  to the Bureau of Prisons  in 28            C.F.R.    0.96.  Since 18 U.S.C.   3568 (1966) (repealed eff.            Nov.  1, 1987)  prescribes  that a  sentence for  such crimes            begins to run only when the person is "received" at the place            of confinement,  designation of the state  prison was usually            required  to  effect  concurrency  with  an  unexpired  state            sentence.                         3.  The  second  prong  of  Clemente's   argument,  that  the            sentencing court was also  deprived of the power to  impose a            consecutive sentence,  has been  rejected by the  majority of            courts.  See  United States  v. Hardesty, 958  F.2d 910,  913                     ___  _____________     ________            (9th  Cir. 1992)  (citations);  Pungitore, 910  F.2d at  1119                                            _________            (same).                                          -6-            promise  to  recommend  a  sentence that  is  "impossible  of            fulfillment,"  as  when  it  is "plainly  contrary  to  law."            Correale v.  United States,  479 F.2d  944, 946-47  (1st Cir.            ________     _____________            1973) (following Brady v. United States, 397 U.S. 742 (1970),                             _____    _____________            and  Santobello v. New York,  404 U.S. 257  (1971)); see also                 __________    ________                          ________            Bemis v. United States,  30 F.3d 220 (1st Cir.  1994); United            _____    _____________                                 ______            States v. Kurkculer,  918 F.2d 295,  297-98 (1st Cir.  1990).            ______    _________            We have never gone so far as to say, however, that "minor and            harmless slips" will void a plea bargain.  Correale, 479 F.2d                                                       ________            at 947;  see also United  States v. Tursi,  655 F.2d 26  (1st                     ________ ______________    _____            Cir. 1981).                      We  do not  see  an error  here,  and certainly  no            "plain" error.   Nothing in the  plea agreement required  the            prosecutor  to  recommend  that the  district  court  achieve            concurrency  by a particular means, let  alone an illegal, or            nonexistent  mechanism.  Had the  court been persuaded by the            prosecutor's  recommendation,  there  were   available  ample            lawful means  for its fulfillment.  See Eaglin, Sentencing at                                                ___         __________            5-12 (flexible  sentencing options for crimes committed prior            to November  1, 1987,  include shortened terms,  early parole            eligibility,  suspended  sentences,  fines,  and  recommended            concurrent  terms); see  also  House Report  at 37-141,  1984                                _________            U.S.C.C.A.N. 3220-324 (comparison with new  sentencing laws).            Cooperation by other officials with a recommendation from the            court  for  a  concurrent  term  is  the  norm,  see  Eaglin,                                                             ___                                         -7-            Sentencing at 6; Nass, 755 F.2d at 1135, 1137;  Williams, 651            __________       ____                           ________            F.2d at 647 n.2; Janiec,  505 F.2d at 988; Herb, 436  F.2d at                             ______                    ____            568; and there was no reason to doubt it in this case.                         The  availability of lawful means for achieving the            recommended  result is  what  distinguishes  this  case  from            Correale.     In  Correale,  the  prosecutor   recommended  a            ________          ________            mechanism for  effecting a concurrent sentence  that was both            unlawful, (a minimum term greater than that  allowed by law),            and illusory, because the state sentence was about to expire.            Although aware of  the defect, the  sentencing court did  not            afford  Correale an opportunity to withdraw his plea prior to            imposing  a  term of  lawful  length  which did  not  achieve            concurrency.  We decided that relief was required because,                  "It  is  the  defendant's  rights  that  are  being                 violated when  the  plea  agreement  is  broken  or                 meaningless.    It  is  his waiver  which  must  be                 voluntary and  knowing.  He offers  that waiver not                 in exchange  for the  actual sentence or  impact on                 the judge,  but for the prosecutor's  statements in                 court.   If they  are not  adequate, the  waiver is                 ineffective."             Correale, 479 F.2d at 949.               ________                      Clemente, however, got what  he bargained for.  The            prosecution vigorously recommended a concurrent sentence at a            time  when the existing state sentence had many years to run.            The specific means for achieving concurrency was not broached            by either party because,  after thoughtful consideration, the            court  rejected the  recommendation for  lawful reasons  that            were  well within its discretion.   Our cases  do not require                                         -8-            relief from  a mistake that  was not made,  nor a  remedy for            hypothetical non-cooperation  with  the court  that  has  not            occurred.   Cf.  Bemis,  30 F.3d  at  221 (considerations  of                        ___  _____            remedy must await proof of a promise and its breach).                        A review  of the plea hearing  transcript leaves no            doubt that Clemente's guilty plea in this regard was knowing,            intelligent  and voluntary.    The court  warned Clemente  in            strong  terms  of its  inclination  to  impose a  consecutive            sentence  and recessed  the  plea hearing  to  permit him  to            consult  with  his  attorney  prior to  accepting  his  plea.            Clemente  then chose  to plead  guilty after  a full  Rule 11            colloquy in  which he  acknowledged his understanding  of the            court's  warning and all other relevant matters.  See Fed. R.                                                              ___            Crim. P. 11.                       Clemente argues that it  was error for the district            court to resolve  this   2255  motion without an  evidentiary            hearing.   However, a petitioner under   2255 bears the usual            burden  of  showing that  his  motion  cannot be  effectively            "heard" on the papers.   See United States v. McGill, 11 F.3d                                     ___ _____________    ______            223,  225-26 (1st Cir. 1993).  The mainstay of his challenge,            above,  did not  require  an evidentiary  hearing because  it            raised only an issue of law.                        A hearing  also was not required  on the remaining            claims, discussed seriatim below, because each was invalid as                              ________                                         -9-            a matter of law, or contradicted by the record.   Id. at 225.                                                              ___                      1.  There is no  merit to Clemente's arguments that                      1.            his  counsel provided  ineffective assistance, and  the court            erred during the plea colloquy, by failing to advise Clemente            of  the  statutory  details   pertaining  to  concurrent  and            consecutive sentences.  Even  if one, or  both of them had  a            duty to impart this information (which we  doubt), the record            belies any  plausible claim that Clemente would not have pled            guilty  but  for  the omission,  or  that  it  resulted in  a            miscarriage of justice.   See Hill v. Lockhart, 474  U.S. 52,                                      ___ ____    ________            57-59 (1985) (to prevail on a claim of ineffective assistance            in  a plea  agreement petitioner  must show  that there  is a            reasonable  probability that,  but  for  counsel's error,  he            would not have pled  guilty but would have insisted  on going            to  trial);  United States  v.  Timmreck, 441  U.S.  780, 783                         _____________      ________            (1979) (nonconstitutional  error in  a Rule 11  colloquy does            not provide a basis for relief under   2255 unless it amounts            to  a   complete  miscarriage  of  justice   or  an  omission            inconsistent with the rudimentary demands of fair procedure).                      2.  The  record contradicts  Clemente's claim  that                      2.            the  court failed to warn him  that he would not be permitted            to withdraw his plea if the court rejected  the prosecution's            sentencing recommendation.   Although  the court did  not use                                         -10-            formulaic  words,  the  court's  repeated   emphasis  on  the            invariable  repercussions of a guilty plea, and the recess to            permit  Clemente to  consult with  counsel about  the court's            warnings, combined to  leave no doubt  about the finality  of            the  plea.  Cf. United  States v. Medina-Silverio,  30 F.3d 1                        ___ ______________    _______________            (1st  Cir.  1994)  (Rule   11  is  satisfied  by  substantial            compliance, courts are  not required to  follow a formula  of            "magic  words").  There was no fundamental defect in the plea            colloquy.                       3.  Clemente's allegation that he was misled during                      3.            the  plea  hearing  recess  by  prosecutorial  pressures  and            promises, is  contradicted by the hearing  transcript as well            as  his own affidavit.   His affidavit recites  only that his            attorney told him  during the recess that  the prosecutor had            stated his  "firm  belief"  that  the judge  would  impose  a            concurrent sentence after he heard of  Clemente's cooperation            and testimony  at  trial.   The  transcript shows  that  when            Clemente  returned to the hearing he swore under oath that no            additional promises had  been made.   See Bemis,  30 F.3d  at                                                  ___ _____            222-23 (in the absence  of unusual facts lending plausibility            to  belated allegations, a defendant  is bound by  his or her            sworn representations in  court disclaiming the existence  of            additional promise).                        Finally,   Clemente  was   not  entitled   to  the            appointment of  counsel for  this    2255 motion, see  United                                                              ___  ______                                         -11-            States  v. Mala,  7 F.3d  1058, 1063  (1st Cir.  1993), cert.            ______     ____                                         _____            denied, 114 S.  Ct. 1839  (1994), and his  argument that  the            ______            district judge  should have recused himself  from hearing the            motion is  specious.  See Panzardi-Alvarez  v. United States,                                  ___ ________________     _____________            879 F.2d 975,  985 (1st Cir. 1989)  (there is nothing  per se                                                                   ___ __            wrong with the sentencing judge reviewing a   2255 petition),            cert. denied, 493 U.S. 1082 (1990); see also Liteky v. United            ____________                        ________ ______    ______            States,  114 S.  Ct.  1147,  1155  (1994)  (a  judge  is  not            ______            recusable  because he has formed an opinion of the case based            on information  acquired while presiding over  it, unless his            opinion is so extreme as to display clear inability to render            fair  judgment); McGill, 11 F.3d at 226 (a district judge may                             ______            rely upon  his memory of earlier proceedings in ruling on a              2255 motion).                      Affirmed.                      ________                                         -12-
