Ciampi v. United States

United States Court of Appeals
For the First Circuit

No. 03-2461

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY CIAMPI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Cyr, Senior Circuit Judge.

Thomas J. Butters, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

August 17, 2005
 CYR, Senior Circuit Judge. Anthony Ciampi appeals from

the district court order which denied and dismissed his petition

for habeas corpus, filed pursuant to 28 U.S.C. § 2255, in which he

asserts that he never knowingly and voluntarily waived the right to

appeal or collaterally challenge his illegal gambling conviction by

entering into a written plea agreement with the government. As

there was no error, we affirm.

I

BACKGROUND

A twenty-three count indictment was returned against

Ciampi in April 1997 relating to his involvement in an illegal

gambling operation. See 18 U.S.C. § 1955. Subsequently, Ciampi

was convicted by the jury on the § 1955 count, acquitted of four

other counts, and no verdicts were reached on the remaining

eighteen counts. Ciampi’s original trial attorney withdrew his

appearance, and the district court appointed new counsel pending a

retrial on the latter counts. The government ultimately proposed

a plea agreement, whereby Ciampi would plead guilty to two counts

upon which the jury had reached no verdict (viz., conspiracy to

commit murder in aid of racketeering and attempting to commit an

assaultive crime with a dangerous weapon, id. §§ 1959(a) & 2).

At the plea hearing conducted on November 1, 1999, Ciampi

was provided with a copy of the plea agreement, and the terms of

the agreement were recited by government counsel, including the

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provision waiving any right to appeal or collaterally challenge

either the conviction or the sentence. The district court asked

whether Ciampi understood the terms of the agreement, and Ciampi

replied in the affirmative. Whereupon the district court, on March

1, 2000, imposed a 216-month prison term pursuant to the plea

agreement. Judgment was entered on March 8.

On February 20, 2001, Ciampi submitted a pro se habeas

corpus petition in the federal district court, pursuant to 28

U.S.C. § 2255, claiming, inter alia,1 that the district court had

failed to inform him during the November 1999 plea colloquy that he

was waiving his right to appeal, as well as any right to assert a

collateral challenge.

On October 31, 2002, Ciampi, through counsel, submitted

an amended § 2255 petition, which asserted several additional

claims, including: (i) counsel rendered ineffective assistance by

failing to appeal his conviction on the § 1955 gambling count; and

(ii) the government adduced insufficient evidence that he violated

§ 1955. The district court granted the amendment.

1
Additional arguments, which Ciampi no longer presses, were as
follows: (i) the government concealed evidence from the district
court which demonstrated that the government offered Ciampi the
plea agreement to cover up government officials’ corrupt
involvement with organized crime figures in the gambling enterprise
and the murders; (ii) his original counsel rendered ineffective
assistance by failing to investigate these false representations by
the government; and (iii) the plea agreement constituted an invalid
contract since Ciampi received no consideration (viz., benefit)
from the agreement.

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 On September 19, 2003, in an unpublished opinion, the

district court denied the amended § 2255 petition, holding that the

new claims asserted in the amended petition – filed some 18 months

after the final judgment of conviction was entered under § 1955 –

were time-barred by operation of the one-year statute of

limitations prescribed by section 2255. Further, the court

determined that these new claims could not “relate back” to the

timely pro se petition filed by Ciampi in February 2001, see Fed.

R. Civ. P. 15(c), in that (i) the ineffective assistance claim

concerned counsel’s alleged failure to advise Ciampi to appeal

following his § 1955 conviction, whereas the pro se petition

addressed a totally different time in the litigation, viz., the

ineffective assistance of counsel in persuading Ciampi to accept

the government’s plea agreement offer; and (ii) Ciampi’s pro se

petition made no mention of the insufficiency of the evidence

supporting the § 1955 conviction. Consequently, the district court

ruled that the only preserved claim concerned whether Ciampi had

knowingly and voluntarily waived his rights to appeal and to assert

a collateral challenge by virtue of his acceptance of the plea

agreement, viz., whether the district court conducted an adequate

inquiry during the plea colloquy as to whether Ciampi understood

the waiver provision.

Alternatively, the district court denied the timely

claims, as well as the time-barred claims, on the merits. As for

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the waiver claim, the court ruled that even though the district

court had not specifically asked Ciampi during the plea hearing

whether he understood the consequences of waiving his rights to

appeal and to assert collateral challenges, the attendant

circumstances nonetheless demonstrated that Ciampi had fully

understood the waiver. Finally, after obtaining a certificate of

appealability, Ciampi challenges the dismissal of his petition.

II

DISCUSSION

A. The Limitations Period and the “Relation Back” Argument

First, Ciampi contends that the district court erred in

dismissing, as time-barred, the claims asserted in his amended

petition that counsel rendered ineffective assistance during the

plea process by failing to discuss with him (i) that acceptance of

the plea agreement would constitute a waiver of his appeal and

habeas corpus rights, and (ii) whether or not he had a viable

appeal from his gambling conviction. Ciampi contends that since

the pro se petition stated that “the waiver in the plea agreement

was not fully explained to him,” and inasmuch as pro se petitions

are to be liberally construed, this court should supply the omitted

phrase “by the court or his attorney” at the end of that sentence.

Ciampi maintains that once we import, from his pro se petition,

this ineffective assistance claim into his amended petition, it

follows that his related argument that he had a meritorious and

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potentially successful appeal from his gambling conviction –

including subordinate issues such as (i) whether the government

established all elements of a section 1955 offense, and (ii)

whether his counsel properly preserved or waived the insufficiency

challenge for appeal – must necessarily be addressed as part of his

amended petition. We disagree.

The district court ruling that the pertinent new claims

in Ciampi’s amended October 2002 petition do not relate back to the

timely pro se petition filed in February 2001 is reviewed only for

abuse of discretion. See Young v. Lepone, 305 F.3d 1, 14 (1st Cir.

2002).2

Federal Rule of Civil Procedure 15 governs amendments to

habeas petitions in a § 2255 proceeding. See, e.g., United States

v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999); see also United States

v. Hicks, 283 F.3d 380, 386 (D.C. Cir. 2002), thereby permitting

otherwise untimely pleading amendments to “relate back” to the date

of the timely-filed original pleading provided the claim asserted

in the amended plea "arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

2
The Antiterrorism and Effective Death Penalty Act (AEDPA)
requires that a federal prisoner submit a habeas corpus petition
within one year from the date upon which the conviction becomes
“final”. 28 U.S.C. § 2255. As Ciampi failed to appeal from the
gambling conviction, the one-year period commenced in March 2000,
when the court entered judgment on the plea agreement. See Derman
v. United States, 298 F.3d 34, 41 (1st Cir. 2002). Thus, the
February 2001 pro se petition was timely, whereas the amended
petition of October 2002 was not.

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pleading." Fed. R. Civ. P. 15(c)(2)(emphasis added). However, in

the habeas corpus context, the Rule 15 “relation back” provision is

to be strictly construed, in light of “‘Congress’ decision to

expedite collateral attacks by placing stringent time restrictions

on [them].’” Mayle v. Felix, ___ U.S. ___, 125 S. Ct. 2562, 2570

(2005) (citation omitted); see United States v. Espinoza-Saenz, 235

F.3d 501, 505 (10th Cir. 2000) (noting that an overly broad

interpretation of the Rule 15 term “occurrence” in the context of

habeas proceedings “would be tantamount to judicial rescission of

AEDPA’s statute of limitations period”). Accordingly, amended

habeas corpus claims generally must arise from the “same core

facts,” and not depend upon events which are separate both in time

and type from the events upon which the original claims depended.

Mayle, 125 S. Ct. at 2570 (disallowing relation back, and holding

that claimed violations in admission of out-of-court statements

were distinct under Rule 15, inasmuch as one involved a Fifth

Amendment challenge to the defendant’s own pretrial statements, and

the other involved a Confrontation Clause challenge to videotaped

witness testimony).

Under this stringent standard, therefore, the district

court did not remotely abuse its discretion in determining that the

amended Ciampi claims did not relate back to the pro se petition.

Ciampi erroneously posits that it is sufficient under Rule 15 that

both sets of claims generally related to his “understanding” of his

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appellate waiver. Instead, however, Ciampi's pro se petition

restricts its focus to whether the district court failed to make an

adequate inquiry at the plea hearing – pursuant to its

responsibility under Federal Rule of Criminal Procedure 11(c)(6) –

as to whether Ciampi understood that he was waiving his rights to

appeal or to collaterally challenge his gambling conviction. In

pertinent part, the Addendum to the Ciampi pro se petition states:

Can the court accept such a waiver without
informing the defendant in detail that such
waiver would prevent the defendant from
arguing any constitutional or jurisdictional
defect found within the indictment? To
compound [petitioner’s] dilemma, he assumed
the right to appeal was standard for all
defendant(s), and that (sic) the waiver in the
plea agreement was not fully explained to him.

(Emphasis added.) Even if it were to be liberally construed, see,

e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting that pro

se habeas petitions normally should be construed liberally in

petitioner’s favor); Voravongsa v. A.T. Wall, 349 F.3d 1, 8 (1st

Cir. 2003), cert. denied, 541 U.S. 963 (2004), this quoted language

speaks only of the court, and makes no mention of Ciampi’s

attorney. Moreover, Ciampi asserted another ineffective assistance

claim against his attorney in his pro se petition, alleging that

his counsel failed to investigate the misrepresentations allegedly

made by the government in the indictment, which Ciampi contends

would have unearthed evidence of governmental involvement in the

illegal gambling enterprise. Not only does this suggest that

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Ciampi – acting pro se – adequately understood the required

elements of an “ineffective assistance” claim, but it makes his

omission of any similar claim – that his attorney failed to explain

the appellate waiver to him – glaring indeed. As the Supreme Court

recently made crystal clear, see Mayle, 125 S. Ct. at 2570, a

petitioner does not satisfy the Rule 15 "relation back" standard

merely by raising some type of ineffective assistance in the

original petition, and then amending the petition to assert another

ineffective assistance claim based upon an entirely distinct type

of attorney misfeasance. See, e.g., Davenport v. United States,

217 F.3d 1341, 1346 (11th Cir. 2000); Duffus, 174 F.3d at 337.3

Accordingly, the district court did not abuse its

discretion in dismissing the above-mentioned claims from the

amended petition, and the only habeas claim properly before us on

appeal is the claim that the district court failed to comply with

Rule 11(c) during the plea hearing.

B. Waiver of Right of Appeal and Collateral Challenge

Ciampi argues that the district court violated Rule

3
Ciampi contends that the government did not establish that
his involvement in the illegal gambling enterprise was anything
more than merely coincidental, hence failed to establish that the
enterprise “involve[d] five or more persons who conduct, finance,
manage, supervise, direct, or own all or part of such business.”
18 U.S.C. § 1955(b)(1)(ii). Further muddying the waters, Ciampi's
trial counsel failed to preserve the insufficiency claim for appeal
by conceding in open court that “I cannot quarrel with the
sufficiency of the evidence.” As we conclude that Ciampi’s claims
do not relate back under Rule 15(c), however, we need not wade into
these matters.

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11(c), in that it failed to specifically inquire during the plea

colloquy whether he understood that he was waiving his right to

appeal or to collaterally challenge the gambling conviction.

Ciampi relies upon United States v. Teeter, 257 F.3d 14, 24 (1st

Cir. 2001), where we asserted that such a waiver-of-appeal

provision normally would not be enforceable unless (i) “the written

plea agreement signed by the defendant contains a clear statement

elucidating the waiver and delineating its scope;” (ii) “the

court's interrogation [during the plea hearing] suffices to ensure

that the defendant freely and intelligently agreed to waive her

right to appeal her forthcoming sentence,” and (iii) the waiver

otherwise constitutes a “miscarriage of justice.” Id. at 24-25;

see Fed. R. Crim. P. 11(b)(1)(N) (noting that court must “address

the defendant personally in open court . . . [and] inform the

defendant of, and determine that the defendant understands . . .

the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence”). The Ciampi

contention fails.

First, it is undisputed that paragraph 6 of the Ciampi

plea agreement contains a plain expression of the nature of the

waiver, and that paragraph 4 likewise clearly states its scope:

“This disposition encompasses both the counts of the Indictment and

the Information to which Defendant is pleading guilty, and the

count of the Indictment on which the jury found Defendant guilty.”

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(Emphasis added.) Ciampi was given a copy of the plea agreement

at the plea hearing, and his counsel signed an acknowledgment that

Ciampi had read and understood its provisions. See Teeter, 257

F.3d at 26 (noting that attorney acknowledgments “furnish prima

facie evidence of the appellant's knowledge and volition”).

Second, turning to the evidence contained in the

transcript of the plea colloquy, the government recited in open

court all the terms of the plea agreement, including the waiver of

appellate and habeas rights. Immediately thereafter the district

court addressed Ciampi and asked “[A]re those the terms of your

agreement with the government as you understand them?” Ciampi

answered "yes." During the hearing, the court had repeatedly told

Ciampi that he could consult with his attorney if he did not

understand anything the court said. Although it is true that the

district court never asked Ciampi specifically or directly: “Do you

understand the provision waiving your appellate and habeas rights,”

we have prescribed no "mandatory language for such an inquiry

because the circumstances will vary from case to case, from

defendant to defendant, and from plea agreement to plea agreement.

We caution only that the court's interrogation should be specific

enough to confirm the defendant's understanding of the waiver and

her acquiescence in the relinquishment of rights that it betokens."

Id. at 24 n.7. The temporal proximity of the government’s open-

court recitation and the district court’s omnibus inquiry satisfy

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us that Ciampi was not unduly prejudiced by the district court’s

failure to repeat each of the provisions just enumerated by the

government.

Third, Teeter is legally distinguishable on one

especially significant front. Rule 11(c) was last amended in 1999,

following the Ciampi plea hearing in this case, whereas the Teeter

case dealt with the amended rule. Prior to the 1999 amendment,

some courts had approved waivers even though the district court had

not engaged in the sort of specific questioning regarding the

waiver now explicitly required under the new Rule 11(c). See id.

at 24 (noting that 1999 amendment – “which was in force when Teeter

changed her plea – alters the decisional calculus”) (citing United

States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (upholding a

waiver despite the absence of specific questioning by the court)).

Here, the government’s recitation of the terms of the plea

agreement, followed immediately by the district court’s inquiry of

Ciampi as to whether he understood the import of each of those

terms, arguably satisfied the less specific, pre-1999 version of

Rule 11.4

4
By distinguishing Teeter in this respect, we in no sense
sanction any diminution in the district court’s important
responsibility under amended Rule 11(c), to take all appropriate
measures to ensure that the defendant is knowingly and voluntarily
waiving his rights of appeal, and a direct and particularized
inquiry plainly remains among the most efficacious and
straightforward methods to that end. Thus, wherever practicable,
it should remain the paradigm.

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 Fourth, it is noteworthy that the district court said

nothing else during the plea hearing which remotely would have

negated or counteracted its inquiry regarding Ciampi’s

understanding of the waiver, or misled Ciampi into any false belief

that he was retaining either his right to appeal or to assert a

collateral challenge to the gambling conviction. Cf. Teeter, 257

F.3d at 26-27 (finding Rule 11(c) violation, noting that in

addition to absence of direct inquiry, the court later confused

defendant by asking: "[D]o you also understand that both you and

the government will have a right to appeal any sentence I

impose?").

Finally, our holding does not rest exclusively upon

either the written terms of the plea agreement or the precise words

uttered during the plea colloquy. The ultimate test for

determining Rule 11(c) compliance continues to be whether, given

the totality of the circumstances, it fairly can be said that the

defendant knowingly and voluntarily waived his right to appeal.

See Teeter, 257 F.3d at 24 (noting that the district court’s

failure to make particularized inquiry regarding waiver of rights

of appeal, “will constitute error and may serve to invalidate the

waiver, depending upon what the record shows as to the defendants'

knowledge (that is, whether the defendant, notwithstanding the

absence of a particularized inquiry, understood the full

significance of the waiver) and the existence vel non of

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prejudice”). Here, we are well satisfied that the totality of the

circumstances afford no good reason to suppose that Ciampi

realistically could have expected that the government would enter

into a plea agreement in which it dropped many of the serious

counts remaining for retrial, arranged for a reduction in his

potential sentence from 30 to 18 years, but then left him the

prerogative to appeal and/or collaterally challenge his gambling

conviction. See id. at 22 (“Allowing a criminal defendant to agree

to a waiver of appeal gives her an additional bargaining chip in

negotiations with the prosecution; she may, for example, be able

to exchange this waiver for the government's assent to the

dismissal of other charges.”). Far from creating a “miscarriage of

justice,” id. at 25, the plea agreement in this case plainly

conferred upon Ciampi a considerable benefit and an opportunity to

escape the perils of a retrial, and Ciampi would have been naive

indeed to suppose that he could have his cake (viz., significantly

reduced jail time) and eat it too (viz., an appeal).

As the record on appeal, viewed in its entirely, amply

persuades us that Ciampi understood the nature and scope of the

waiver of appeal rights prescribed in the plea agreement, the

district court correctly rejected his claim, and dismissed the

amended habeas petition.

Affirmed.

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