
USCA1 Opinion

	




          January 31, 1995                                [NOT FOR PUBLICATION]                               UNITED STATES OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1605                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                  CLIFFORD A. DOYLE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Marcia G. Shein on brief for appellant.            _______________            Jay  P.  MCloskey,  United  States  Attorney,  F.  Mark   Terison,            _________________                              __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner Clifford A. Doyle  appeals                      __________            from the dismissal  without hearing of his motion  to vacate,            set  aside, or correct his  sentence under 28  U.S.C.   2255.            Specifically,  he argues  that  the district  court erred  in            dismissing  his  claims  that  the  government  breached  its            promise  to  recommend  a  six-year  sentence  and  that  his            attorney provided ineffective assistance of counsel.                 Breach of Plea Agreement                 ________________________                 In  rejecting  appellant's  claim  that  the  government            breached the  plea agreement, the district  court relied upon            the  written plea agreement and the transcript of the Rule 11            hearing  that  it conducted.    "The  trial judge  makes  the            factual determination  of whether there has been  a breach of            the  plea agreement.    [This court]  will  not reverse  this            determination,   therefore,    unless   clearly   erroneous."            Panzardi-Alvarez  v. United  States, 879  F.2d 975,  987 (1st            ________________     ______________            Cir. 1989), cert. denied, 493 U.S. 1082 (1990).                        ____  ______                 In  dismissing a    2255  motion without a  hearing, the            district  court "must  take petitioner's  factual allegations            'as  true, except to the extent that they are contradicted by            the record  or are inherently  incredible, and to  the extent            that they  are merely  conclusions rather than  statements of            fact.'" Otero-Rivera v. United States, 494 F.2d 900, 902 (1st                    ____________    _____________            Cir.  1974);   (citations  omitted);  see   also,  Hernandez-                                                  ___   ____   __________            Hernandez  v.  United States,  904  F.2d 758,  762  (1st Cir.            _________      _____________                                         -2-            1990).    In  this  case,  appellant's  allegation  that  the            government  promised  to  recommend  a  six-year sentence  is            contradicted  by  the  record.   The  plea  agreement  itself            contains  no such  promise and, in  fact, provides  that "all            parties  specifically  reserve the  right  to  make any  non-            binding recommendation of any  lawful sentence to the court."            Paragraph nine of the plea agreement provides as follows:                      The  defendant understands  that there  are no                 further  or  other  agreements, either  express  or                 implied,  other  than   those  contained  in   this                 Agreement.            At  the   Rule  11  hearing,  the   district  court  directly            questioned appellant as follows:                 Q.   Has anyone made a promise  to you in an effort                 to  induce you to plead guilty  aside from the plea                 agreement I have discussed with you?                 A.   No sir.                   "[T]he presumption of truthfulness of [defendant's] Rule            11 statements will not be overcome  unless the allegations in            the   2255 motion . . . include credible, valid reasons why a            departure from those earlier  contradictory statements is now            justified."  United States v. Butt, 731 F.2d 75, 80 (1st Cir.                         _____________    ____            1984); cf. United  States v.  Doyle, 981 F.2d  591, 594  (1st                   ___ ______________     _____            Cir.  1992)  ("We  have   repeatedly  refused  to  infer  the            existence  of  promises  not  expressly  articulated  in,  or                                         -3-                                          3            necessarily  implied by, plea agreements, .  . .").  In his              2255 motion appellant provides  no explanation for his denial            in the  Plea Agreement and  at his  Rule 11 hearing  that any            promises had been made other than those contained in the Plea            Agreement  itself.   Therefore,  he  failed  to overcome  the            presumption  of  truthfulness of  his  Rule  11 statements.              Under those circumstances,  the district court did not err in            summarily denying appellant's breach-of-plea claim. See Butt,                                                                ___ ____            731 F.2d at 80  (affirming summary denial of    2255 petition            where  appellant "has given no valid reasons why he should be            relieved of his statements  in the 'Plea Petition' or  at the            change of plea proceeding").                 Ineffective Assistance of Counsel                 _________________________________                 On appeal, appellant alleges for the first time that his            attorney provided ineffective  assistance in  misrepresenting            that the government  would recommend a six-year sentence.  He            further alleges  that, based upon  that misrepresentation, he            decided to  plead guilty  "with the understanding  and belief            that he would not receive a sentence in excess of six years."            In  his   2255 petition, appellant alleged numerous errors on            the  part  of his  attorney.   With  respect to  the expected            sentence, however,  he faulted his attorney  only for failing            to  insist that the government put its promise to recommend a            six-year sentence in writing, and for failing to  object when                                         -4-                                          4            the  government  breached  its  promise   by  recommending  a            fifteen-year sentence.                 The  district  court  rejected  appellant's  ineffective            assistance of counsel claim in his   2255 motion, essentially            for his failure to allege prejudice.  Specifically, the court            noted that "[p]rejudice might  exist if Doyle would otherwise            have pleaded  not  guilty,  Hill v.  Lockhart,  474  U.S.  52                                        ____     ________            (1985),  or if an illegal  sentence was imposed,  but it does            not  exist  simply  in Doyle's  belief  that  he  should have            obtained a better plea  bargain."  Now, on  appeal, appellant            alleges  that he would have  pleaded not guilty,  but for his            counsel's erroneous  advice that he would  receive a six-year            sentence.   "[O]ur general  rule  is not  to consider  claims            raised for the first time  on appeal. . . . We  therefore are            confined  to determining whether or not this is a case 'where            a  gross miscarriage  of justice  would occur'  . . .  . [and            where]  the new ground  [is] 'so  compelling as  virtually to            insure appellant's success.'"  Hernandez-Hernandez, 904  F.2d                                           ___________________            at 763.   Our review of the  record does not reveal that this            is such a case.                 To succeed on an ineffective assistance of counsel claim            in the context  of a guilty plea, a defendant  is required to            make two showings: first, "that his counsel's challenged acts            or omissions  made counsel's overall  performance fall 'below            an objective standard  of reasonableness,'" United  States v.                                                        ______________                                         -5-                                          5            Giardino,  797  F.2d  30,   31  (1st  Cir.  1986)  (citations            ________            omitted),  and second, "'a  reasonable probability  that, but            for counsel's  errors, he would  not have pleaded  guilty and            would have insisted on going to trial.'" Id.                                                     ___                 In Butt, supra, we affirmed the district court's summary                    ____  _____            denial of a   2255 petition  on facts similar  to this  case.            There, the petitioner had  claimed in his   2255  motion that            his attorney misled  him by  telling him that  the judge  had            agreed  to the plea bargain.   Based upon  the statements and            declarations contained in the  written plea agreement and the            transcript of  the change-of-plea  hearing,  we rejected  his            claim  that he  had  relied on  that  misrepresentation.   We            reasoned as follows:                 Butt has  given no valid  reasons why he  should be                 relieved of his  statements in the  "Plea Petition"                 or at the change  of plea proceeding.  Even  if the                 appellant  had asserted  that, upon  the  advice of                 counsel,  he  had  made  false  statements  at  the                 change-of-plea  proceedings,   the  presumption  of                 truthfulness of the Rule  11 statements will not be                 overcome  unless  the  allegations in  the     2255                 motion   are  sufficient   to  state  a   claim  of                 ineffective  assistance  of  counsel   and  include                 credible, valid  reasons why a departure from those                 earlier contradictory statements is  now justified.                 Since Butt  fails  to reasonably  substantiate  his                 ineffective  assistance of  counsel claim  with any                 material issues  of fact, he has  not "overcome the                 presumption of  regularity which  the record .  . .                 imports."            Butt, 731 F.2d at 80.            ____                 In this  case,  as  in  Butt, appellant  has  failed  to                                         ____            overcome  the  presumption of  truthfulness  of  his Rule  11                                         -6-                                          6            statements.   As  this  court noted  in Butt,  "[e]videntiary                                                    ____            hearings  have been  granted to     2255 appellants  who have            claimed   that   their   plea   was   induced   by   attorney            misrepresentations  only when  the  allegations  were  highly            specific   and  usually   accompanied  by   some  independent            corroboration."  731 F.2d  at  80, n.5;  see also  Hernandez-                                                     ___ ____  __________            Hernandez, 904 F.2d  at 762.  Appellant's allegations in this            _________            case  are neither specific  nor corroborated.   His  brief is            contradictory   in   its   description  of   his   attorney's            misrepresentation.  At one  point, appellant alleges that his            attorney  advised  him  that  he  would  receive  a  six-year            sentence.   Elsewhere  in  the brief,  however,  he seems  to            allege  that his  attorney's misrepresentation  was that  the            government  was bound by its oral promise to recommend a six-            year  sentence.    These  allegations  are  not  sufficiently            specific   to  require  an   evidentiary  hearing.    Compare                                                                  _______            Hernandez-Hernandez, 904 F.2d at 762 (allegation that counsel            ___________________            had told defendant he would receive a ten-year sentence if he            pleaded guilty was sufficiently specific in that the date and            time of the misrepresentation and the specific sentence to be            served in exchange for the guilty plea were set forth).                   Neither allegation is corroborated.  Appellant refers in            his brief to affidavits by Daniel G. Lilly and Mary A. Davis,            the attorneys  who represented  appellant at his  guilty plea            hearing.   Copies  of those  affidavits, however,  were never                                         -7-                                          7            submitted to the district court.   Only recently, on December            13, 1994, appellant's attorney moved to supplement the record            excerpts  to  include "three  affidavits .  .  .   related to            [appellant's]  original  complaint  concerning   promises  to            induce  him to  plead  guilty." As  the  affidavits were  not            before the district court when it considered appellant's Rule            2255 motion, they cannot be considered on appeal.  See United                                                               ___ ______            States v.  Pacheco-Ortiz,  889 F.2d  301, 307  n.3 (1st  Cir.            ______     _____________            1989).  The government's  motion to strike the references  to            the affidavits from appellant's brief is allowed.  The motion            to supplement the record is denied.                        Moreover, references to the affidavits in the brief            purportedly  support only  the  allegation  that  appellant's            attorney  advised  him  that   the  government's  promise  to            recommend  a six-year sentence did not have to be included in            the  written  plea,  not  the allegation  that  his  attorney            advised  him he would receive a six-year sentence.  Given the            sentencing  court's clear  statement at  the Rule  11 hearing            that   it  was   not   bound  to   follow  the   government's            recommendation,  appellant cannot  reasonably have   inferred            from  his  attorney's   alleged  misrepresentation  that  the            government would recommend a six-year sentence, that he would            necessarily receive a six-year sentence.                 We  conclude  that this  is not  a  case where  a "gross            miscarriage  of justice" will result  or where the new ground                                         -8-                                          8            for relief  insures appellant's success.   Therefore, we deny            appellant's  ineffective assistance of  counsel claim  on the            ground that it was not presented to the district court.                 For   the  foregoing  reasons,    The  district  court's            dismissal  of   appellant's     2255  petition  is  summarily            affirmed pursuant to Loc. R. 27.1.                                               -9-                                          9
