RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0048p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
SHAWN SMITH,
-
Petitioner-Appellant,
-
-
No. 09-3284
v.
,
>
-
Respondent-Appellee. -
CARL ANDERSON,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02923—Christopher A. Boyko, District Judge.
Argued: December 9, 2010
Decided and Filed: February 11, 2011
Before: MARTIN and SILER, Circuit Judges; BELL, District Judge.*
_________________
COUNSEL
ARGUED: William T. Whitaker, Jr., Akron, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: William T. Whitaker, Jr., Andrea L. Whitaker, Akron, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
BELL, District Judge. In this habeas case, Petitioner-Appellant Shawn Smith
asks us to allow him to withdraw his plea of guilty or to remand his case for resentencing
on the basis of a broken promise by the State of Ohio. Though made during plea
*
The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 09-3284 Smith v. Anderson Page 2
negotiations, the promise was not contained in the fully integrated, written plea
agreement; Petitioner disavowed the existence of the promise in open court; and
Petitioner appears not to have even known about the promise until well after his plea was
entered. Because this Court declines to hold that failing to enforce such a promise is an
unreasonable application of clearly established federal law as determined by the
Supreme Court, we AFFIRM.
I. Background
A. Factual History
The underlying facts of this case are not in dispute. Petitioner married his
fifteen-year-old, pregnant girlfriend in 1990. Their daughter was born with serious
medical problems and died five months after birth, never having left the hospital.
Shortly thereafter, Petitioner’s wife began seeing another man. Petitioner was
overwhelmed by these events, and in June of 1991, he broke into the house next door to
his wife’s and waited for her to come out. When she came outside with the man she was
seeing, Petitioner drew a small caliber handgun and shot each of them in the head.
Miraculously, both were treated and released from the hospital within a few days,
apparently without serious permanent injury.
There being little question as to responsibility, Petitioner was indicted by a state
grand jury and entered into a lengthy plea negotiation with the prosecutor, who wanted
to avoid a highly publicized and emotionally-charged trial. The result of the negotiations
was a written plea agreement, filed with the trial court, by which Petitioner agreed to
plead guilty to two counts of attempted aggravated murder, one count of felonious
assault with a firearm specification, and one count of breaking and entering. In
exchange for Petitioner’s guilty plea, the state agreed to forego prosecuting Petitioner
on unrelated burglary charges and to dismiss several pending misdemeanor charges. The
written plea agreement presented to, and accepted by, the trial court does not include any
additional promises by either party and states that it represents a complete summation
of the agreement. However, the parties now agree that during the course of plea
No. 09-3284 Smith v. Anderson Page 3
negotiations, the prosecutor promised Petitioner’s counsel that the prosecutor’s office
would not send any letters of recommendation to the Parole Board when Petitioner
became eligible for parole.1 The parties also agree that a new prosecutor later broke that
promise.2
As clear as the evidence of the broken promise is now, it is equally clear that the
trial court had no knowledge of this secret, off-the-record exchange when it accepted
Petitioner’s guilty plea. Indeed, all evidence on the record militated against the
existence of any promises outside of the plea agreement, and the trial court did
everything in its power to ensure that none existed. Petitioner’s change of plea hearing
of March 12, 1992, began with a reading of a written summary of the plea negotiations
into the record, followed by an extended discussion of its meaning. Again, the only
promises discussed were of the state’s dropping some charges in exchange for
Petitioner’s guilty pleas as to others. During the subsequent plea colloquy, the court
asked Petitioner whether he had “been promised anything other than what I have been
told here in this Court Room today to secure a plea of guilty,” and Petitioner assured the
court that he had not. In Petitioner’s written guilty plea executed moments earlier, he
stated that, “I have been fully advised by my attorney of the Criminal Rule 11(F) plea
negotiations which have also been stated in open court . . . .” In accepting this plea, the
court noted that “this was a negotiated plea pursuant to Criminal Rule 11(F) and the
underlying agreement upon which the plea was based was stated on the record in open
Court, which agreement was approved by the Court.” Based on the plea colloquy, the
written plea agreement, the attorneys’ summary of plea negotiations, and the written plea
of guilty, the trial court accepted the plea.
1
In a letter to Petitioner’s counsel dated March 12, 1992, the Portage County Prosecutor stated
that, “[p]ursuant to our Rule 11 F plea negotiations, it is the position of the Portage County Prosecutor’s
Office that no letters of recommendation will be sent to the Parole Board with reference to Shawn Smith
when he becomes eligible for Parole.”
2
In a letter to the Parole Board dated September 16, 1999, the new Portage County Prosecutor
stated that, “it is the position of the Portage County Prosecutor’s Office that Mr. Smith should serve the
balance of his sentence and NOT be considered for early release/clemency.”
No. 09-3284 Smith v. Anderson Page 4
B. Procedural History
After the Parole Board denied him parole in December of 1999, Petitioner
claimed breach of his plea agreement and moved to withdraw his plea. He argued that
Ohio’s new sentencing guidelines effectively extended his sentence. Following a
hearing on the motion, but before a ruling had issued, Petitioner filed a renewed motion
in which he contended that the prosecutor had breached the plea agreement by sending
a letter of recommendation to the Parole Board. Petitioner requested specific
performance of his plea agreement, or, in the alternative, that his plea be vacated. The
trial court overruled his motion in a one page opinion.
Petitioner timely filed a notice of appeal claiming, inter alia, that
The trial court erred in overruling [Petitioner’s] original motion for
specific performance, or in the alternative for a new trial, because the
state of Ohio unequivocally and admittedly violated the terms of the plea
agreement upon which [Petitioner] relied in entering pleas of guilt.3
State v. Smith, 2005-Ohio-4899, ¶ 14. In denying this assignment of error, the Ohio
Court of Appeals noted that a plea agreement is essentially a contract, and the remedy
for the government’s breach is either allowing the defendant to withdraw his plea or
issuance of an order for specific performance. Id. at ¶ 17. However, citing federal law
including Santobello v. New York, 404 U.S. 257 (1971), the state court found that breach
cannot be established by reference to any promise between the parties which was not
known to the court. Id. at ¶ 20. Since the prosecutor’s promise to Petitioner’s counsel
was unknown to the court and not revealed in the plea agreement, in the written guilty
plea, or at the plea colloquy, the Ohio Court of Appeals found it to be unenforceable.
Petitioner requested and was denied leave to appeal to the Supreme Court of Ohio.
Ten months after exhausting his state court remedies, Petitioner filed his petition
for writ of habeas corpus in the United States District Court for the Northern District of
Ohio, on grounds similar to those on which he appealed to the state courts. The district
3
Pursuant to this Court’s September 23, 2009, order granting in part and denying in part
Petitioner’s application for a certificate of appealability, this is the only issue which remains before us.
No. 09-3284 Smith v. Anderson Page 5
court, too, observed that enforceable plea agreements consist only of the terms revealed
in open court. Accordingly, applying the appropriately deferential standard of review
to the state court’s findings, the district court accepted and adopted the recommendations
of the Magistrate Judge and denied the petition on February 6, 2009.
Petitioner filed his notice of appeal to this Court on March 3, 2009. On
September 23, 2009, we granted a certificate of appealability on the claim that “his due
process rights were violated when the state induced him to plead guilty by promising not
to make a parole recommendation and then reneged on that promise.”
II. Analysis
A. Standard of Review and Relevant Law
While the question of “[w]hether government conduct has violated a plea
agreement is a question of law,” United States v. Martinez, 16 F. App’x 410, 412 (6th
Cir. 2001) (citing United States v. Wells, 211 F.3d 988, 995 (6th Cir. 2000)), “[t]he
existence of such an agreement is a question of fact,” United States v. Herrera, 928 F.2d
769, 773 (6th Cir. 1991) (citing Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986)).
However, we are not the first court to consider these matters, and we must give due
consideration to the determinations of both law and fact made by the courts which
preceded us.
The statute governing our review of habeas corpus petitions severely constrains
the discretion of this and all other federal habeas courts in reviewing the considered
judgments of our colleagues on the state bench. See 28 U.S.C. § 2254. Under this
statute, as applicable here,4 we cannot grant a writ of habeas corpus unless the state court
decision “involved an unreasonable application of clearly established Federal law as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)
(internal punctuation omitted). This simple statement places on us three distinct
4
Petitioner does not argue that the state court decision was contrary to clearly established federal
law as determined by the Supreme Court or that it was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
No. 09-3284 Smith v. Anderson Page 6
limitations, each of them substantial. First, only clearly established federal law “as
determined by the Supreme Court of the United States” is sufficient to overturn the
considered decisions of the state court. See Williams v. Spitzer, 246 F. Supp. 2d 368,
382 n.12 (S.D.N.Y. 2003) (“Since Congress provided in the [statute] that habeas courts
may now look only to Supreme Court decisions as declarative of established federal law,
it seems to me that I am not only at liberty to disregard the Second Circuit’s due process
holding . . . , I am affirmatively commanded to do so . . . .”). Second, the federal law
must be “clearly established;” thus we consider only “‘the holdings, as opposed to the
dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision.’” Yarborough v. Alvarado, 541 U.S. 652, 660-661 (2004) (quoting Williams
v. Taylor, 529 U.S. 362, 412 (2000)). Finally, the state court’s decision must be
“unreasonable.” We “may not issue the writ simply because [we] conclude[] in [our]
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Williams, 529 U.S. at 411.
Likewise, we are not to overturn state courts for failure to follow their own rules
unless those failures constitute a violation of due process. See Ramos v. Rogers, 170
F.3d 560, 564 n.2 (6th Cir. 1999) (“Since this is an appeal of the denial of a habeas
petition, we are not permitted to review whether the plea colloquy conformed with the
strictures of Ohio Rule 11, but only whether it comported with the requirements of
constitutional due process.” (citing Norris v. Schotten, 146 F.3d 314, 328 (6th Cir.
1998))); Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (“Reviewing federal courts
may set aside a state court guilty plea only for failure to satisfy due process.” (internal
quotation marks omitted)).
The parties have agreed that the clearly established Supreme Court precedent that
governs review of this case is Santobello, which states that “when a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S.
at 262.
No. 09-3284 Smith v. Anderson Page 7
B. Discussion
Here, the state appeals court held that “[b]ased upon the written plea agreement,
written guilty plea, and [Petitioner’s] testimony, it is clear that the plea agreement was
fully integrated and did not include a promise to withhold a recommendation from the
parole board. Thus, the trial court did not err by overruling [Petitioner’s] motion for
specific performance, or in the alternative to vacate his plea, as the promise to withhold
a recommendation was not part of the plea agreement placed upon the record.” State v.
Smith, 2005-Ohio-4899, ¶¶ 25-26. In so holding, the state appeals court relied heavily
on previous decisions of this Court, and rightfully so, as this Court “has consistently held
that a defendant’s plea agreement consists of the terms revealed in open court.” United
States v. Johnson, 979 F.2d 396, 398 (6th Cir. 1992) (citation and internal quotation
marks omitted).
In Martinez, the government sent a letter to the defendant’s attorney wherein the
government agreed to “take no position on [the defendant’s] role in the offense.” 16 F.
App’x at 412. The written plea agreement pursuant to which the defendant pleaded
guilty, however, made no mention of that promise. Id. As here, the defendant alleged
a violation of the plea agreement. The district court denied the writ. In affirming the
district court, we pointed out that “where the parties have inserted an integration clause
into the plea agreement, that ‘integration clause normally prevents a criminal defendant,
who has entered into a plea agreement, from asserting that the government made oral
promises to him not contained in the plea agreement itself.’” Id. (quoting United States
v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000)). We also quoted Baker for the proposition
that “‘it is impossible for a trial judge to properly administer a plea agreement if it
consists of secret terms known only to the parties.’” Id. (quoting Baker, 781 F.2d at 90).
In Baker we also held that “where Rule 11 procedures were fully adequate, absent
extraordinary circumstances, or some explanation of why defendant did not 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.” 781 F.2d at 90. Similarly, in
Peavy v. United States, 31 F.3d 1341 (6th Cir. 1994), we held that even where both
No. 09-3284 Smith v. Anderson Page 8
parties acknowledge the existence of an off-the-record agreement, silence in the face of
a question as to the existence of promises outside of the plea agreement “likely would
foreclose post-conviction reliance on those promises.” Id. at 1345. In Ramos, we held
that the integrity of the plea process itself prevents the enforcement of off-the-record
promises which are denied in open court by the party which later seeks to enforce them.
See 170 F.3d at 566 (“[T]he plea colloquy process exists in part to prevent petitioners
such as [the defendant] from making the precise claim that is today before us.”
(emphasis in original)).
Here, all of the relevant factors advocate in favor of limiting Petitioner’s plea
agreement to that which was revealed to the state court. As in Martinez, there was a
fully integrated, written plea agreement which did not discuss the promise at issue. As
in Baker, the parties did not reveal additional terms of the plea agreement when
specifically asked to do so by the court, which, as we explained in Peavy, forecloses
post-conviction reliance on those additional terms. Finally, as in Ramos, Petitioner
specifically denied that there were any additional terms.
Moreover, even if this Court were to adopt a rule requiring its trial courts to
enforce off-the-record plea agreements, due process would not require the State of Ohio
to do the same. See Siegel v. New York, 691 F.2d 620, 621 (2nd Cir. 1982) (“New York
State’s policy of recognizing only on-the-record plea bargains comports with due
process.”). As demonstrated in this case, it appears that the State of Ohio has elected to
adopt a rule that the only enforceable plea agreements are those which are presented to,
and accepted by, the trial court judge. This is not unusual, it comports with the State’s
rules of criminal procedure, and, indeed, it comports with our own rules of criminal
procedure. See Ohio Crim. R. 11(F) (“When, in felony cases, a negotiated plea of guilty
or no contest to one or more offenses charged or to one or more other or lesser offenses
is offered, the underlying agreement upon which the plea is based shall be stated on the
record in open court.”); Fed. R. Crim. P. 11(c)(2) (“The parties must disclose the plea
agreement in open court when the plea is offered, unless the court for good cause allows
the parties to disclose the plea agreement in camera.”). The practice of requiring plea
No. 09-3284 Smith v. Anderson Page 9
agreements to be disclosed to the court has also been recognized and accepted by the
Supreme Court. See United States v. Hyde, 520 U.S. 670, 677-678 (1997) (“If the court
accepts the agreement and thus the Government’s promised performance, then the
contemplated agreement is complete and the defendant gets the benefit of his bargain.
But if the court rejects the Government’s promised performance, then the agreement is
terminated and the defendant has the right to back out of his promised performance (the
guilty plea), just as a binding contractual duty may be extinguished by the
non-occurrence of a condition subsequent.”). In fact, the Supreme Court seems to have
had this in mind when it decided Santobello, the case which both parties here have
recognized as the clearly established Supreme Court precedent on this issue. See
Santobello, 404 U.S. at 261-62 (“[T]he sentencing judge must develop, on the record,
the factual basis for the plea. . . . [I]f [the plea] was induced by promises, the essence of
those promises must in some way be made known.” (emphasis in original)).
Accordingly, we conclude that the state court decision did not involve an unreasonable
application of clearly established federal law as determined by the Supreme Court, and
it must be affirmed.5
Nonetheless, we are very troubled by the magnitude of the agreement which was
not placed on the record, and we are even more troubled by the fact that the State of
Ohio violated that agreement. The societal benefits attendant to plea bargaining depend
on defendants being able to rely upon the promises they receive. It is for that reason that
the Supreme Court has been clear that the time for backroom, off-the-record, shadow
compacts between prosecutor and defense counsel is long past. Counsel no longer has
any reason to hide from the court the plea agreement, in its full, inglorious detail. It is
equally clear that it would be no defense that the promise here was made by one
prosecutor and broken by another. See Santobello, 404 U.S. at 262 (“The staff lawyers
in a prosecutor’s office have the burden of ‘letting the left hand know what the right
5
We also note that there may be some question as to whether Petitioner was even aware of the
Prosecutor’s promise. In a hearing before the state trial court, he explicitly stated that he “was not aware”
that the guarantee not to send letters opposing parole was part of his plea agreement. If that was indeed
the case, we would be hard pressed to find that it could “be said to be part of the inducement or
consideration” to plead guilty, as required by Santobello. 404 U.S. at 262.
No. 09-3284 Smith v. Anderson Page 10
hand is doing’ or has done.”). As such, our holding in this matter is necessarily limited.
The outcome may have been different, not only in this Court, but in those below, had
there been any sign that the prosecutor’s office was attempting to deceive Petitioner or
to take advantage of the fact that an off-the-record agreement might not be enforced. See
United States v. Ykema, 887 F.2d 697, 699 (6th Cir. 1989) (“[T]he government should
scrupulously avoid any behavior that would constitute trickery.”). So too, and as noted
above, the outcome may have been different had the state court not been scrupulous in
informing Petitioner of his rights and doing everything in its power to ensure that the
plea was freely and voluntarily given, with full knowledge of its consequences.
III. Conclusion
For the reasons set forth above, we AFFIRM the judgment of the district court.