UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-6922

RICHARD R. MCCLEARY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Senior District Judge.
(CR-90-425-B, CA-95-406-B)

Argued: March 3, 1997

Decided: May 1, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Christine M. Gregorski, Third Year Law Student, Appel-
late Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. Susan Moss Ringler,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: Neal L. Walters, Supervising Attorney, Jill T. Crawley,
Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In 1991, Richard McCleary pleaded guilty to conspiracy to launder
drug proceeds, see 18 U.S.C.A. § 371 (West Supp. 1997), and was
sentenced to five years in prison. Almost four years later, McCleary
filed a motion, pursuant to 28 U.S.C.A. § 2255 (West Supp. 1997),
seeking to set aside his guilty plea and sentence. McCleary argues that
the Government's presentation of perjured testimony and its failure to
produce impeachment and exculpatory evidence materially affected
his decision to plead guilty. We conclude, albeit for reasons different
from those stated by the district court,1 that McCleary cannot, as a
matter of law, collaterally attack his guilty plea.

I.

On October 31, 1990, McCleary, a law school graduate, and his
wife, Suzanne McCleary, were charged in a fifteen-count indictment
with conspiracy to launder drug proceeds. See 18 U.S.C.A. § 371
(West Supp. 1997). McCleary was also charged with laundering drug
proceeds, see 18 U.S.C.A. § 1956 (West Supp. 1997); structuring cur-
rency transactions, see 31 U.S.C.A. §§ 5324(a)(3) & 5322(a) (West
Supp. 1997); failing to file currency transaction reports, see 31
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1 See Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274, 275 n.1
(4th Cir. 1997) (noting that "[w]e have consistently recognized that we
may affirm a district court's decision on different grounds than those
employed by the district court").

                    2
U.S.C.A. §§ 5316(a)(1)(A) (West 1983 & Supp. 1997) & 5322 (West
Supp. 1997); and aiding and abetting, see 18 U.S.C.A. § 2 (West
Supp. 1997). At his arraignment, McCleary entered a plea of not
guilty on all counts. As a result, the case against McCleary proceeded
to trial.

On May 21, 1991, Suzanne McCleary entered into a cooperation
agreement with the Government in which she agreed to testify against
her husband. The following day, McCleary's trial began. The Govern-
ment's first three witnesses were Hans Pfennings, Donald Mackessy,
and Archie Elliott. Both Elliott and Mackessy testified, pursuant to
plea agreements, that they had purchased cocaine from McCleary
between 1984 and 1988. Pfennings, who testified that he was not a
paid agent of the United States Government, told the jury that Mc-
Cleary frequently transferred money in and out of the off-shore trust
accounts that Pfennings managed.

After the testimony of these three witnesses, and prior to the testi-
mony of his wife, McCleary decided to enter into a plea agreement
with the Government. Under the terms of the agreement, McCleary
would plead guilty to one count of money laundering, and the Gov-
ernment would recommend a sentence at the low end of the Sentenc-
ing Guidelines range. Subsequent to the entry of McCleary's plea, the
Government realized that the conduct in the count to which McCleary
pleaded guilty occurred prior to the enactment of the Sentencing
Guidelines. As a result, the Government advised McCleary and the
court that it would file a motion to nullify or rescind the plea agree-
ment.

After changing counsel, McCleary entered into a new plea agree-
ment with the Government. Under the terms of the new agreement,
McCleary would plead guilty to one count of conspiracy to launder
drug proceeds, and the Government would recommend a maximum
five-year sentence, to run consecutive to the 25-year state sentence
McCleary was then serving for selling narcotics. At his rearraign-
ment, McCleary withdrew his first guilty plea to money laundering
and entered a second plea of guilty to conspiracy to launder drug pro-
ceeds. In addition, McCleary stipulated to and signed a Statement of
Facts in which he admitted his involvement in (1) selling drugs; (2)
laundering drug proceeds; (3) structuring currency transactions; and

                    3
(4) failing to file currency transaction reports. The district court
accepted McCleary's plea and the Government's sentencing recom-
mendation.

Almost four years after he was sentenced, McCleary filed a motion,
pursuant to 28 U.S.C.A. § 2255 (West Supp. 1997), to vacate and set
aside his guilty plea and sentence.2 McCleary argues that the Govern-
ment's presentation of perjured testimony and its failure to produce
impeachment and exculpatory evidence materially affected his deci-
sion to plead guilty. Specifically, McCleary alleges that he has evi-
dence (1) that Pfennings, who testified that he was not a paid agent
of the United States Government, had actually been a paid federal
agent for the DEA for six months prior to McCleary's trial; (2) that
Special Agent Robert Twigg purchased prescription Valium for
Elliott during at least one debriefing session; and (3) that the Govern-
ment possessed tape recordings of exculpatory telephone conversa-
tions. Moreover, McCleary asserts that the prosecuting attorney knew,
prior to his plea, that Pfennings perjured himself, that Elliott was
addicted to Valium, and that exculpatory tape recordings existed.

The district court held, however, that McCleary's allegations of
prosecutorial misconduct did not provide a basis for setting aside his
guilty plea. The court reasoned that all of McCleary's allegations
related to errors which occurred prior to his admitting in court that he
was, in fact, guilty of the crime charged. (J.A. at 176-77 (citing Tollett
v. Henderson, 411 U.S. 258, 267 (1973) (noting that a defendant may
not "raise independent claims relating to the deprivation of constitu-
tional rights that occurred prior to the entry of the guilty plea")).)
According to the district court, "[o]nce a criminal defendant has pled
guilty, collateral review is limited to an examination of whether the
plea was counseled and voluntary." (J.A. at 177 (citing United States
v. Broce, 488 U.S. 563, 569 (1989)).) Based on this analysis, the dis-
trict court held that McCleary could not, as a matter of law, collater-
ally attack his guilty plea. This appeal followed.
_________________________________________________________________
2 Because McCleary's sentence was to run consecutive to the state nar-
cotics sentence he was serving at the time he entered his plea, he had not
yet begun serving his five-year sentence when he filed his § 2255
motion.

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II.

On appeal, McCleary contends that the district court erred when it
held that his guilty plea barred collateral review of his claims of pro-
secutorial misconduct. Although McCleary agrees with the district
court's conclusion that a voluntary guilty plea may not be collaterally
attacked, see, e.g., United States v. Broce, 488 U.S. 563, 569 (1989);
Mabry v. Johnson, 467 U.S. 504, 508 (1984); Tollett v. Henderson,
411 U.S. 258, 267 (1973), he argues that the district court never
addressed his primary contention: The Government's failure to pro-
vide Brady evidence rendered his guilty plea involuntary. Whether a
criminal defendant may collaterally attack his guilty plea based on a
claimed Brady violation is a legal question that we review de novo.
See United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994).

In Tollett, the Supreme Court explained that"a guilty plea repre-
sents a break in the chain of events which has preceded it in the crimi-
nal process." 411 U.S. at 258. As a result, "[w]hen a criminal
defendant has solemnly admitted in open court that he is in fact guilty
of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea." Id. Instead, once
a criminal defendant has pled guilty, collateral review is limited to an
examination of "whether the underlying plea was both counseled and
voluntary." Broce, 488 U.S. at 569.

Several circuits have held that a guilty plea may be deemed invol-
untary if entered into in the absence of withheld Brady evidence. See,
e.g., Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995)
(holding "that a defendant challenging the voluntariness of a guilty
plea may assert a Brady claim"); Miller v. Anglicker, 848 F.2d 1312,
1320 (2d Cir. 1988) (holding that a guilty plea is not voluntary if "en-
tered without knowledge of material information withheld by the
prosecution"); White v. United States, 858 F.2d 416, 422 (8th Cir.
1988) (holding that the Tollett line of cases "does not preclude a col-
lateral attack upon a guilty plea based on a claimed Brady violation,
but habeas relief would clearly be the rare exception"); Campbell v.
Marshall, 769 F.2d 314, 321 (6th Cir. 1985) (noting that under lim-
ited circumstances a guilty plea may be deemed involuntary if entered
without knowledge of information withheld by the prosecution). If

                     5
this Court were to join our sister circuits, McCleary's ability to collat-
erally attack his guilty plea would turn on whether the Government
actually withheld the alleged information and, if so, whether with-
holding that information violated Brady.

Because the district court did not conduct an evidentiary hearing to
determine the truth of McCleary's factual allegations, it is impossible
to determine from the record before us whether the Government actu-
ally withheld the alleged information. Cf. Sanchez, 50 F.3d at 1453
(holding that the Government did not possess and was not aware of
the information allegedly withheld); Miller, 848 F.2d at 1321 (noting
that "[t]here is no question in this case that the State withheld" infor-
mation). Nevertheless, for purposes of this appeal we will assume
without deciding that the prosecuting attorney knew, prior to Mc-
Cleary's plea, that Pfennings perjured himself and that Elliott was
addicted to Valium.3 As a result, McCleary's ability to collaterally
attack his guilty plea turns on whether withholding the aforemen-
tioned evidence violated Brady.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held
that "the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment." Id. at 87. According to the
Supreme Court, evidence is "material" if the failure to disclose it "un-
dermines confidence in the outcome of the trial." United States v.
Bagley, 473 U.S. 667, 678 (1985). As the definition of materiality
suggests, the Supreme Court has never applied Brady, or its progeny,
_________________________________________________________________
3 McCleary also alleged that the Government failed to provide him with
exculpatory tape recordings allegedly made by Special Agent Twigg.
However, McCleary never identifies when these tapes were made, who
is speaking on the tapes, or what exculpatory information the tapes con-
tain. We have previously held that "[u]nsupported, conclusory allega-
tions do not entitle a habeas petitioner to an evidentiary hearing."
Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (conclusory state-
ment that discrimination occurred in selecting the jury was not enough).
Because McCleary simply made the conclusory statement that the Gov-
ernment possessed exculpatory tapes, he was not entitled to an evidenti-
ary hearing on this allegation. As a result, we will not assume that the
prosecuting attorney knew, prior to McCleary's plea, that exculpatory
tape recordings existed.

                     6
to a guilty plea. In the case of a guilty plea, our sister circuits have
concluded that information is "material" if it"would have been con-
trolling in the decision whether to plead." White 858 F.2d at 424; see
also Campbell, 769 F.2d at 324 (same); cf. Sanchez, 50 F.3d at 1454
(holding that information is material if "there is a reasonable probabil-
ity that but for the failure to disclose the Brady material, the defen-
dant would have refused to plead and would have gone to trial");
Miller, 848 F.2d at 1322 (same).

After reviewing the record, briefs, and pertinent caselaw, and after
hearing oral arguments, we are convinced that none of the allegedly
undisclosed information would have altered McCleary's decision to
plead guilty. First, we find no merit in McCleary's argument that he
would have proceeded to trial had he known that Elliott was addicted
to Valium. The fact that Elliott was addicted to Valium was relevant
only to his credibility as a witness. McCleary, however, already knew
that Elliott's credibility had been assailed at the time he entered his
plea of guilty. Elliott admitted at trial that he was a convicted felon
and drug dealer, that he failed to file income tax returns, and that he
was testifying as a part of a plea agreement with the Government.
Knowledge of Elliott's addiction could not have further lessened his
credibility with the jury. In short, we conclude that McCleary did not
plead guilty because he was unable to attack Elliott's credibility as a
witness.

Even if the undisclosed information was essential to a successful
attack on Elliott's credibility, Elliott was not the only witness who
testified, or was going to testify, about McCleary's participation in
selling narcotics. Donald Mackessy testified that in October of 1984
he entered into "a partnership or a joint venture" with McCleary to
buy and sell cocaine. (S.J.A. at 68.) According to Mackessy, Mc-
Cleary would purchase the cocaine in Florida and then send it via
Federal Express to Mackessy in Maryland. In Maryland, Mackessy
and McCleary cut and packaged the cocaine for further distribution.
Over time, the joint venture flourished. As a result, Mackessy testified
that McCleary started dealing in kilo quantities and using couriers to
bring the cocaine from Florida to Maryland. Even more telling, Mc-
Cleary knew that his wife, who had already admitted her role in the
offense, had agreed to testify about his narcotics activities. As a
result, we cannot say that withholding information about Elliott's

                     7
Valium addiction, which McCleary could have used only to attack
Elliott's credibility as a witness, was controlling in McCleary's deci-
sion to plead guilty.

Similarly, we find no merit in McCleary's argument that he would
have elected to go to trial had he known that Pfennings was a paid
agent of the United States Government. Even if McCleary success-
fully impeached Pfennings' credibility by establishing that he com-
mitted perjury, the substance of Pfennings' testimony was
corroborated by two independent sources. First, the Government had
McCleary's business records, which documented all of his illegal
financial transactions. Even more important, Suzanne McCleary was
prepared to testify that McCleary frequently transferred money in and
out of the off-shore trust accounts managed by Pfennings. As a result,
we conclude that withholding information about Pfennings' status as
a paid agent of the United States Government did not control Mc-
Cleary's decision to plead guilty.

We note that McCleary benefited greatly from pleading guilty. Mc-
Cleary was charged in a fifteen-count indictment. If convicted on all
counts, McCleary could have received a maximum of 250 years in
prison.4 As a result of pleading guilty, McCleary received a maximum
sentence of 5 years. Although the benefit McCleary received by
pleading guilty is not determinative, it certainly does not undermine
our conclusion that had the Government provided McCleary with the
evidence in question, he would still have pleaded guilty.

In light of the Government's strong case and the prospect of a
lengthy sentence if convicted, we do not believe that there is a reason-
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4 Although combining the statutory maximum for each count in the
indictment would result in a 250-year sentence, this Court does not have
enough information to determine what McCleary's sentence would have
been had he been convicted on all counts. Besides the fact that some of
the counts in the indictment related to conduct that occurred prior to the
enactment of the Sentencing Guidelines, it is not at all clear what his
combined offense level would be for those counts covered by the Sen-
tencing Guidelines. In any event, whatever his sentence would have
been, it would have been significantly longer than the five-year sentence
he received as a result of the plea agreement.

                     8
able probability that McCleary, who was already serving a 25-year
state sentence, would have proceeded to trial in this case. Because we
find that the information was not material, withholding it did not vio-
late Brady. As a result, we need not, and do not, determine whether
a criminal defendant can collaterally attack a guilty plea based on an
alleged Brady violation. That determination we leave for another day.

III.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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