ANTHONY MacKENZIE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6002 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The order of the court of appeals (Pet. App. 1a) is not reported. The memorandum and order of the district court (Pet. App. 1b-5b) are not reported. JURISDICTION The judgment of the court of appeals was entered on August 3, 1990. The petition for a writ of certiorari was filed on September 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court correctly dismissed petitioner's collateral attack on his conviction without a hearing. STATEMENT Following his plea of guilty in the United States District Court for the Southern District of New York, petitioner was convicted of conspiracy to distribute heroin, in violation of 21 U.S.C. 846, and possession of heroin with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). The district court sentenced petitioner to 30 years' imprisonment, to be followed by a lifetime term of special parole. The court also fined petitioner $250,000 and imposed a $100 special assessment. The court of appeals affirmed. Pet. App. 1b. Petitioner then filed a motion for post-conviction relief under 28 U.S.C. 2255. The district court dismissed the motion without a hearing. Pet. App. 1b-5b. The court of appeals affirmed. Pet. App. 1a. 1. A superseding indictment filed on July 9, 1987, in the United States District Court for the Southern District of New York charged petitioner and 20 other defendants in 27 counts. Count 1 charged that petitioner had participated in a racketeering enterprise, known as the "Jackson organization," that distributed heroin and cocaine and engaged in murder and other acts of violence. Petitioner was charged with taking part in various racketeering acts, including the kidnapping and attempted murder of Jerry Davis, conspiring to distribute heroin and cocaine, and distributing heroin. Count 2 charged petitioner and others with conspriring to participate in a racketeering enterprise. Count 4 of the indictment charged petitioner and others with participating in a conspiracy to distribute heroin. Count 5 charged that petitioner had participated in a conspiracy to distribute cocaine. Count 11 charged that petitioner had distributed heroin and possessed heroin with the intent to distribute it. Gov't C.A. Br. 2-3. /1/ If petitioner had been convicted on all five counts, he would have faced up to 85 years' imprisonment. Gov't C.A. Br. 3. 2. On September 15, 1987, petitioner, who was represented by retained counsel, appeared before the district court and expressed his desire to plead guilty to Counts 4 and 11 of the indictment. The district court noted the maximum punishments for the offenses charged in Count 4 and 11. The court ascertained that petitioner was represented by counsel, had reviewed the charges with his attorney, and was satisfied with the legal advice he had received. The district court advised petitioner of the rights he would relinquish by pleading guilty, including his right to a jury trial. Petitioner acknowledged that he understood these rights and had discussed them with his attorney. Gov't C.A. Br. 4; C.A. App. 59a-61a. The district court further advised petitioner of the maxium penalties he faced on Counts 4 and 11, and established that petitioner understood that the maxium penalty on each count could be cumulated, resulting in a possible maximum sentence of 30 years' imprisonment, a $500,000 fine, a lifetime special parole term, and a $100 special assessment. Gov't C.A. Br. 5; C.A. App. 62a-63a. The district court then explored petitioner's agreement with the government. The prosecutor represented that the government (1) would not request a specific sentence, but would recommend a substantial term of imprisonment; (2) had agreed not to begin forfeiture proceedings against a Bronx apartment where a woman lived with petitioner's son; (3) would return certain photographs, credit cards, and other items seized during various searches; and (4) would not oppose a motion at sentencing to dismiss the remaining counts in the indictment that charged petitioner. Gov't C.A. Br. 5; C.A. App. 63a-65a. Petitioner acknowledged that these were the only promises that had been made to him, that no threats had been made, and that he was willingly and voluntarily entering his guilty plea. Gov't C.A. Br. 5; C.A. App. 65a. Concluding that the plea was knowing and voluntary, and that it had a factual basis, the court accepted the plea and set a date for petitioner's sentencing. Gov't C.A. Br. 5; C.A. App. 66a-69a. 3. On January 15, 1988, after conducting a two-day evidentiary hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), to ascertain petitioner's role in the narcotics conspiracy and in other criminal activities (including the Davis kidnapping), the district court found that petitioner was "a top figure in the Jackson organization, made a whopping big amount of money out of it, and he was the one who would, when the occasion required, used (sic) force and the threats of force and violence to carry out the requirements of the narcotics selling of the organization." Gov't C.A. Br. 5-6 (quoting C.A. App. 75a). The court then sentenced petitioner to 30 years' imprisonment, a $250,000 fine, and a lifetime special parole term. Pursuant to the plea agreement, the court dismissed Counts 1, 2, and 5 of the indictment. Gov't C.A. Br. 6. On August 19, 1988, the court of appeals affirmed. Pet. App. 1b. 4. Petitioner subsequently filed a motion under 28 U.S.C. 2255 alleging various errors that he had not presented on direct appeal. The district court dismissed the petition without a hearing. Pet. App. 1b-5b. Petitioner's motion contended that (1) his guilty plea was not voluntary because the government and his own attorney had misled him about the terms of the plea agreement and his possible sentence; /2/ (2) the government knew that he was not an officer in the Jackson organization and that he had not kidnapped Davis, and that therefore the government's Fatico presentation to the contrary was prosecutorial misconduct; and (3) he had been denied the effective assistance of counsel because his attorney had erroneously advised him that his maximum sentencing exposure was 15 years' imprisonment. Pet. App. 2b. The district court regarded petitioner's first two claims as "completely frivolous." Pet. App. 2b. It noted (id. at 3b-4b) that at the plea proceeding petitioner had twice stated that he understood that he could receive a 30-year prison term, and had also stated that the prosecutor's description of the plea agreement -- which included neither a limit on the term of imprisonment nor a limit on the materials to be presented at sentencing -- was correct and that no one had told him what sentence he would receive. The court also pointed out (Pet. App. 4b-5b) that petitioner had not objected to his sentence either during the three months between his guilty plea and his sentencing or at the time of his sentencing, and had participated for two days in the Fatico hearing without objecting to the government's evidentiary presentation. The court concluded that petitioner's claim of ineffective assistance of counsel also was without merit. Pet. App. 5b. The court found (ibid.) that its "repeated cautioning and (petitioner's) repeated acknowledgements that the exposure was thirty years show that (petitioner) could not have reasonably relied on counsel's allegedly erroneous advice." Accordingly, the district court summarily dismissed the petition. The court of appeals affirmed by judgment order. Pet. App. 1a. ARGUMENT Petitioner contends (Pet. 10-14) that the district court erred in dismissing his motion under 28 U.S.C. 2255 without conducting an evidentiary hearing. Petitioner's contention lacks merit because the claims advanced in his Section 2255 motion are conclusively refuted by the record of the plea proceeding and sentencing hearing. Section 2255 of Title 28 provides, in pertinent part, that the court shall grant a hearing "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." In addition, Rule 4(b) of the rules governing proceedings under Section 2255 provides that "(i)f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings n the case that the movant is not entitled to relief in the district court, the court shall make an order for (the motion's) summary dismissal." Thus, although evidentiary hearings are necessary in many Section 2255 cases, "the allegations of the motion need not be accepted to the extent that they are contradicted by the court's own records." 3 C. Wright, Federal Practice and Procedure Section 599, at 492 (2d ed. 1982) (citing cases). See also United States v. Yeargood, 863 F.2d 6, 7 (4th Cir. 1988); Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984). In this case, it plainly appeared from the record of the prior proceedings that petitioner was not entitled to relief. At the hearing on his guilty plea, petitioner twice acknowledged (Pet. App. 3b; C.A. App. 62a-63a) that he understood he could receive a 30-year prison term: THE COURT: These sentences could be cumulated (for) a maximum of thirty years and/or a $500,000 fine * * *. Do you understand that? (PETITIONER): Yes. THE COURT: So the outside limit is thirty years and a half a million bucks, do you understand that? (PETITIONER): Yes. In addition, petitioner said that he understood and agreed with the prosecutor's description of the plea agreement: the dropping of certain counts, no specific sentencing recommendation but a "likely" recommendation of "a substantial term of imprisonment," and no limitation on sentencing materials. Again, the district court questioned petitioner (Pet. App. 3b-4b; C.A. App. 63a-65a): THE COURT: Those are the promises, correct? (PETITIONER): Yes. THE COURT: * * * And I take it that this plea is voluntary on you part and that having assessed all the alternatives this is something that you willingly want to do, correct? (PETITIONER): Yes. THE COURT: * * * Other than talking to your lawyer and I'm sure others about what sentence you might get, has anybody told you what sentence you will get here? (PETITIONER): No. On this record, petitioner could not reasonably have failed to understand that his plea of guilty exposed him to as much as 30 years' imprisonment, and that the government was free to present evidence in support of a substantial prison sentence. Consequently, the district court was not required to hold an evidentiary hearing on petitioner's allegations to the contrary in his Section 2255 motion. See United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989) (no evidentiary hearing required where allegation that guilty plea was induced by counsel's promise of lenient sentence was contradicted by defendant's representations at plea taking); United States v. Patterson, 739 F.2d 191, 195 (5th Cir. 1984) (prisoner not entitled to evidentiary hearing on claim that guilty plea was involuntary where allegations contradicted by record and petitioner's own testimony). /3/ The record also refutes petitioner's claim of ineffective assistance of counsel. In light of the court's explicit statements about his maximum possible sentence and petitioner's acknowledgments that his exposure was 30 years, petitioner could not reasonably have relied on the allegedly erroneous advice of his counsel. In these circumstances, the district court was not required to hold a hearing. See United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985); see also Shah v. United States, 878 F.2d 1156, 1158-1160 (9th Cir.), cert. denied, 110 S.Ct. 195 (1989). Consequently, the decision of the court of appeals affirming the correctness of this summary dismissal does not warrant further review by this Court. Contrary to petitioner's contention, none of the cases upon which he relies conflicts with the decision below. In Machibroda v. United States, 368 U.S. 487 (1962), the district court failed to ask whether the defendant wished to make a statement at the time of sentencing, id. at 488-489, an this Court specifically noted that "(t)his was not a case where the issues raised by the motion were conclusively determined either by the motion or by the 'files and records' in the trial court," id. at 494. Similarly, in both Marrow v. United States, 772 F.2d 525, 526-527 (9th Cir. 1985), and Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985), the record was silent as to the defendants' allegations that their guilty pleas had been involuntary. The record in this case, far from being silent about petitioner's claims, flatly refutes them. In United States v. Arellanes, 767 F.2d 1353 (9th Cir. 1985), also cited by petitioner (Pet. 10), the court found a "manifest contradiction between statements made at a plea hearing and the written embodiment of the plea agreement." 767 F.2d at 1357. No such contradiction exists here; instead, the contradiction lies between petitioner's claims and his own prior statements. In Pitts v. United States, 763 F.2d 197, 199-200 (6th Cir. 1985), the district court had overstated the defendant's maximum possible sentence. In this case, the district court accurately stated petitioner's maximum possible sentence and thereby corrected any misinformation petitioner may have received from his attorney. To prevail on his claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984), petitioner would have to show not only that he did not receive effective assistance, but also that his "counsel's errors were so serious as to deprive (him) of a fair trial, a trial whose result is reliable." /4/ Petitioner cannot make the first of these showings, because his claim that his counsel misled him as to the length of his sentence is contradicted by his own statement at the plea hearing that no one had told him what his sentence would be. Finally, petitioner's reliance on Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings held to less stringent standard than similar documents drafted by lawyers), and Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir. 1984) (same), is misplaced. The district court did not deny petitioner's motion because it was inartfully drafted, but because it presented claims that are decisively refuted by the record in this case, including petitioner's own statements at the plea hearing. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney JANUARY 1991 /1/ Citations to "Gov't C.A. Br." refer to the brief filed by the United States in petitioner's direct appeal, No. 88-1077 (2d Cir.). /2/ Petitioner alleged that the government had promised that his total sentence would not exceed 15 years' imprisonment, and that the presentence report would be silent about his part in the Davis kidnapping and his role in the Jackson organization. Pet. App. 2b. /3/ Petitioner has not suggested that he was induced to disregard the court's statements, or to lie in open court. In any event, "the defendant's representations during the pleataking carry a strong presumption of verity." United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989) (quoting Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)). /4/ Although Strickland involved the assistance of counsel at trial, its holding has been applied to plea proceedings as well. United States v. Fuller, 769 F.2d at 1098; Craker v. Procunier, 756 F.2d 1212, 1214-1215 (5th Cir. 1985).