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[NOT FOR PUBLICATION]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