
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                 ____________________                 No. 93-2387                                    GREGG M. BEMIS,                                Petitioner, Appellant,                                                         v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Gregg M. Bemis on brief pro se.            ______________            Donald  K.  Stern,  United  States  Attorney,  and  Annette Forde,            _________________                                   _____________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                    July 22, 1994                                 ____________________                 SELYA, Circuit  Judge.   Petitioner Gregg  Bemis appeals                        ______________            pro se  from the summary  dismissal of his motion  to vacate,            set  aside, or correct  his sentence under 28 U.S.C.    2255.            The  centerpiece of  his  petition  is  the  allegation  that            government prosecutors  have reneged  on a  promise, made  as            part  of his  1984 plea  agreement,  to secure  (or at  least            recommend)  his entry  into  the  Federal Witness  Protection            Program  (FWPP) upon  his  release from  prison.   From  this            premise,  petitioner  advances a  number  of  claims--most of            which  are  no longer  zoetic  and,  therefore,  need not  be            described at any length.  In particular,  to the extent he is            seeking release  on his  state  sentence, that  claim is  now            moot.   To  the extent  he  is seeking  damages for  wrongful            imprisonment,  that claim has been explicitly withdrawn.  And            to the extent  he is challenging (for reasons  that are never            explained) the term of probation imposed in  1991, that claim            has received  no developed argumentation on appeal and so has            been implicitly waived.   See, e.g., Ryan v.  Royal Ins. Co.,                                      ___  ____  ____     ______________            916 F.2d  731, 734 (1st Cir.  1990).  The dismissal  of these            various claims is therefore affirmed.                 Petitioner's   central   claim--that   the  government's            failure  to  fulfill  its   alleged  promise  regarding  FWPP            participation constitutes a due process violation--is another            matter.  "[W]hen a  plea rests in any significant degree on a            promise or  agreement of  the prosecutor, so  that it  can be                                         -2-                                          2            said  to be  part of  the  inducement or  consideration, such            promise must be fulfilled."  Santobello v. New York, 404 U.S.                                         __________    ________            257,   262  (1971).     Contrary  to  the   district  court's            jurisdictional ruling, we believe that habeas corpus provides            an  appropriate procedural vehicle for advancing a Santobello                                                               __________            claim.  See,  e.g., Kingsley v. United States,  968 F.2d 109,                    ___   ____  ________    _____________            111 (1st Cir.  1992) (action under   2255  alleging breach of            plea agreement).                   The  government  suggests that,  if the  U.S. Attorney's            Office in fact made any promise regarding FWPP participation,            such a representation would have been ultra vires, see, e.g.,                                                  ___________  ___  ____            Doe  v. Civiletti, 635  F.2d 88, 90  (2d Cir. 1980),  and for            ___     _________            that  reason unenforceable.    Yet "[a]  plea  induced by  an            unfulfillable  promise is no  less subject to  challenge than            one induced by  a valid promise  which the Government  simply            fails to fulfill."  United States  v. Cook, 668 F.2d 317, 320                                _____________     ____            (7th  Cir. 1982);  accord, e.g.,  Mabry v. Johnson,  467 U.S.                               ______  ____   _____    _______            504,  509 (1984)  (plea  induced by  "unfulfillable promises"            subject  to challenge); Correale  v. United States,  479 F.2d                                    ________     _____________            944,  946-47  (1st  Cir.  1973)  (plea  rendered  involuntary            because of failure to carry out promise that was  "impossible            of fulfillment").  The government's argument instead pertains                                         -3-                                          3            to the appropriate  form of remedy--a matter that  we have no            occasion here to address.1                 As a result,  "the crucial question  is not whether  the            Government had the  authority to carry out  the promise which            [petitioner] claims he understood it to make, but  whether it            did in fact  make such a  promise."  Cook,  668 F.2d at  320.                                                 ____            Petitioner advances a colorable claim  in the sense that,  on            appeal,  he  has  submitted two  affidavits  from  the former            prosecutors   in   his  case   that   strongly   support  his            allegations.2   He nonetheless has two strikes against him in                                            ____________________            1.  We  do note  that courts  on  occasion have  specifically            enforced  promises that would encroach on the jurisdiction of            independent entities.  See, e.g., Palermo v. Warden, 545 F.2d                                   ___  ____  _______    ______            286, 296 (2d Cir.  1976) (enforcing promise of early  parole,            in face  of contrary decision  of Parole Board,  and ordering            defendant's release  as "the  only meaningful  relief in  the            context of this case"), cert. dismissed, 431 U.S. 911 (1977);                                    _______________            see generally 2  W. LaFave & J. Israel,  Criminal Procedure              _____________                            __________________            20.2,  at 600-01  (1984).   We also  note the  rather obvious            point  that, should  a  breach  of promise  be  found in  the            instant case, the appropriate form  of remedy will depend  on            the nature  of that  promise.  See,  e.g., Geisser  v. United                                           ___   ____  _______     ______            States, 513  F.2d 862, 869,  872 (5th Cir. 1975)  (promise by            ______            Department of  Justice,  which district  court  construed  as            assurance   that  petitioner   would  not   be  deported   to            Switzerland, is interpreted by appeals court as pledge to use            its "best efforts" to persuade State Department not to do so;            as so construed, promise is specifically enforced).            2.  The  government,  while  protesting  that  such  evidence            should not  be considered,  has responded  by submitting  the            transcript of the Rule 11  hearing and a copy of  the written            plea agreement.   We  think it  appropriate to  consider such            materials, inasmuch as the district court summarily dismissed            the  pro  se  petition  here  sua  sponte  without  affording                                          ___________            petitioner   the  opportunity  to  amend.    Cf.  Johnson  v.                                                         ___  _______            Rodriguez, 943 F.2d 104, 108 n.3 (1st Cir. 1991) (agreeing to            _________            consider  claim not raised  below under  such circumstances),            cert. denied,  112 S.  Ct. 948 (1992);  Lesko v.  Lehman, 925            ____________                            _____     ______                                         -4-                                          4            this  regard.  First,  the written plea  agreement (signed by            petitioner, his counsel,  and the U.S. Attorney)  contains no            reference to  the FWPP,  and declares  that "[n]o  additional            promises,  agreements or  conditions  have been  entered into            other  than as  set forth  in this  letter and  none will  be            entered into unless  in writing and  signed by all  parties."            Second, at  the  Rule 11  hearing,  the district  court  read            portions  of the  plea  agreement into  the  record and  then            inquired of petitioner: "Except for what is contained in that            agreement, has anyone made any  promises to you to induce you            to plead guilty?"  Petitioner, while under oath, responded in            the negative.   No mention of the  FWPP was made at  any time            during this hearing.                   Given  these  circumstances,   petitioner's  attempt  to            establish that an additional promise  was made as part of the            inducement for his plea faces daunting hurdles.   A defendant            is ordinarily  bound by his  or her representations  in court            disclaiming the existence of additional promises.  See, e.g.,                                                               ___  ____            Baker v.  United States, 781  F.2d 85, 90 (6th  Cir.) ("where            _____     _____________            Rule 11  procedures were fully adequate, absent extraordinary            circumstances, or some  explanation of why defendant  did not                                            ____________________            F.2d 1527, 1538 n.8 (3d  Cir.) (noting that appeals court had            directed  petitioner  to  file affidavit  from  his  attorney            detailing  plea negotiations), cert.  denied, 112 S.  Ct. 273                                           _____________            (1991).  It makes no difference in any event, since  a remand            would be warranted  even if we confined our  attention to the            allegations  in   the  petition,  disregarding   both  sides'            additional proffers.                                            -5-                                          5            reveal other terms, at least when specifically asked to do so            by the  court, a defendant's  plea agreement consists  of the            terms revealed  in open court"), cert. denied,  479 U.S. 1017                                             ____________            (1986); Barnes v. United States,  579 F.2d 364, 366 (5th Cir.                    ______    _____________            1978)   ("Where,  from   the   transcript,  the   plea-taking            procedures are clear  and regular on their face, a petitioner            asserting the existence of a  bargain outside the record  and            contrary  to his  own  statements under  oath  bears a  heavy            burden.");  see also  United States  v.  Pellerito, 878  F.2d                        ________  _____________      _________            1535, 1539 (1st  Cir. 1989) (defendant cannot "turn  his back            on his  own representations  to the  court merely  because it            would suit his convenience to do so").  Likewise, the use  of            parol  evidence to  supplement the  terms  of an  unambiguous            written plea agreement is ordinarily frowned upon, especially            where that  agreement disclaims  the existence  of additional            promises.  See, e.g., United States v. Ingram, 979 F.2d 1179,                       ___  ____  _____________    ______            1184 (7th Cir.  1992), cert. denied, 113 S.  Ct. 1616 (1993);                                   ____________            United  States  v. Gamble,  917  F.2d 1280,  1282  (10th Cir.            ______________     ______            1990);  Hartman v.  Blankenship, 825  F.2d  26, 29  (4th Cir.                    _______     ___________            1987); see  also United  States v. Hogan,  862 F.2d  386, 388                   _________ ______________    _____            (1st Cir. 1988) (fact that plea agreement disclaims existence            of other promises  "militate[s] strongly" against defendant's            assertion to contrary).                 Yet  each  of these  rules  is subject  to  exception in            unusual cases.  In Blackledge v. Allison, 431 U.S. 63 (1977),                               __________    _______                                         -6-                                          6            the  Court stated  that no  "per  se rule"  could be  adopted                                         _______            "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            [unlawful]."  Id. at 75; see, e.g., Gamble, 917  F.2d at 1282                          ___        ___  ____  ______            & n.1 (noting  that case did not "come  within any Blackledge                                                               __________            exception");  United States v.  Hammerman, 528 F.2d  326, 331                          _____________     _________            (4th  Cir.  1975) (defendant's  oral disavowal  of additional            promises    cannot   be    "considered   conclusive"    under            circumstances).   Referring to  the parol evidence  rule, the            Blackledge  Court explicitly noted that a written contractual            __________            provision disclaiming  the existence of  additional promises,            while deserving of "great weight," does not "conclusively bar            subsequent proof  that such  additional agreements  exist and            should be  given force."  431  U.S. at 75 n.6;  accord, e.g.,                                                            ______  ____            Kingsley 968  F.2d at  115 (explaining  that "parol  evidence            ________            rule  is not rigidly  applied in construing  plea agreements"            because   contract  issues   that   are  involved   implicate            "constitutional  rights as  well  as  concern  for  the  fair            administration of justice") (quoting United States v. Garcia,                                                 _____________    ______            956 F.2d 41, 43-44 (4th Cir. 1992)) (internal quotation marks            omitted).3                                            ____________________            3.  We acknowledge that  the Blackledge holding was  based in                                         __________            part on the  sparse record of the  change-of-plea hearing and            the  "ambiguous status of  the process of  plea bargaining at                                         -7-                                          7                 For  several reasons,  we are  unwilling prematurely  to            foreclose  the possibility  that the  instant  case might  be            sufficiently unusual to call for an exception to these rules.            First,  petitioner  alleges  that both  his  counsel  and the            government prosecutor advised  him that the FWPP  promise was            an "administrative matter" that did not need to appear in the            plea agreement or  be mentioned in court.   Second, he claims            that, to  the extent this  advice was erroneous,  his counsel            provided  ineffective   assistance.     Third,  despite   the            provision in the  plea agreement requiring any  amendments to            be in  writing, the record  indicates that the  agreement was            later modified (to provide for the dismissal of three counts)            without such written documentation.  Fourth, petitioner could            not have been expected to  object, at the Rule 11 hearing  or            at sentencing, to  the alleged breach of promise, inasmuch as            any  such breach occurred  only years later.   Compare, e.g.,                                                           _______  ____            Baker,  781 F.2d  at  90  ("It is  significant  that ...  the            _____            alleged promise was broken, if at all, right before defendant            and  in open  court.").   Fifth,  the district  court, having            summarily dismissed  on jurisdictional  grounds, has not  had                                            ____________________            the time the  guilty plea  was made."   431 U.S.  at 76;  see                                                                      ___            Baker,  781 F.2d  at 89  (distinguishing  Blackledge on  this            _____                                     __________            basis).   Nonetheless, it cannot  be said that the  advent of            modern Rule 11  procedures has  robbed that  decision of  all            currency.   See,  e.g., 2  W.  LaFave &  J. Israel,  Criminal                        ___   ____                               ________            Procedure   20.5,  at 668 (1984) (even where  Rule 11 hearing            _________            was flawless, there  are still "some circumstances"  in which            an  evidentiary hearing may  be required) (internal citations            and quotation marks omitted).                                          -8-                                          8            the opportunity to consider this  issue.  And finally, on the            limited record before  us--keeping in  mind, especially,  the            prosecutors' affidavits  (which  the district  court did  not            have the benefit of reading) and the fact that petitioner was            placed in a security program while in prison-- the allegation            that he was  promised protection cannot  be dismissed out  of            hand  as fanciful.   While it  is unlikely that  any of these            factors, standing  alone, would  warrant a  remand, we  think            that they  are sufficient  in combination  to render  further            proceedings appropriate.                    We  need go  no further.4  For the  reasons stated,  the            judgment  of the  district  court  is  affirmed in  part  and            reversed  in  part, and  the  case  is remanded  for  further            proceedings.                 It is so ordered.                 _________________                                            ____________________            4.  We note that the district court has  appointed counsel in            a related  action recently  filed  by petitioner.   Bemis  v.                                                                _____            Pappalardo, No. 94-10151 (D. Mass.).  Whether the two actions            __________            ought to  be consolidated,  and whether  counsel ought  to be            appointed in the instant case,  are matters we entrust to the            district court's  discretion.  Cf.  United States v.  Mala, 7                                           ___  _____________     ____            F.3d 1058, 1064  n.7 (1st Cir. 1993) (noting  that "selection            of  appointed counsel is a  matter best left  to the court in            which such counsel  is to appear"), cert. denied,  114 S. Ct.                                                ____________            1839 (1994).                                         -9-                                          9
