*2 WISDOM, TATE, Before FAY and Cir- Judges. cuit WISDOM, Judge: question This case raises the whether the denying, district court erred in without con- ducting prisoner David C. McCord’smotion under 28 U.S.C. 2255 to vacate his sentence. We conclude that the record in this case does not conclu- sively show that McCord was entitled to no court, therefore, relief. The district required by section 2255 to conduct an evi- dentiary hearing to resolve the merits a breach of a bargain. Accordingly, we vacate the dis- trict court’s order and remand the case for an evidentiary hearing.
I. McCord was. July along indicted in persons with seven other in connection with a fraudulent scheme to sell worthless silver mining options. ore and The 16 count in- charged dictment the defendants with con- fraud, spiracy, mail and wire fraud in viola- tion of 18 1343 and 2314. U.S.C. §§ custody McCord was taken into federal held in the Dallas County Jail where he possibility discussed the of a agents with two of the Federal Bureau of Investigation (FBI), Michael A. Clark and Thomas According J. Kneir. agents him pleaded advised that if he guilty to one count of the indictment and hearing1 Attorney the United recit- cooperated with the co-defendants, against his plea bargain: cases ed the terms of the remaining counts dismiss the ment would permit plead McCord to guarantee proba- the indictment and guilty to three counts indictment that the offer tion. McCord maintains cooperation in the cases by the Assistant United was authorized co-defendants; *3 against his Attorney charge in of the Har- States any specific had not offered McCord mini- accepted he vey Ethington. says McCord J. sentence, promised to probated mum or plea agreement and discussed the case court that the trial treat recommend agents imprisoned. with the while length by the questioned When leniently. McCord bail, on he fur- After McCord was released that the Unit- stated judge, district McCord agents Clark and Kneir 31 docu- nished concerning statement Attorney’s ed States relating ments to the defendants’ fraudu- He denied correct. plea agreement lent activities. bargain.2 having promised any other been later, days Several McCord discussed accepted court district plea agreement terms of the for the first five-year term of and sentenced him to a Attorney time with Assistant United States counts, to imprisonment on each of two run Ethington. Ethington denied that he had years five consecutively, to be followed agents and Kneir authorized to offer count. probation of on the third McCord of probation return for a appeal his conviction. did not Ethington count one indictment. July McCord filed a civil action said would consider against the FBI and in the district court to three counts indict- damages to recover Agents Clark and Kneir guarantee ment with no probation. arising from the failure to hon- Agents defendants’ Clark and Kneir were summoned to Ethington’s presence plea agreement negotiated office and in the of or the they having McCord denied offered McCord court County Dallas Jail.3 The district opportunity an to one count Mag- transferred this case to United States having guaranteed of the indictment or to conduct an eviden- istrate John B. Tolle probation. findings and tiary hearing and to make disposition of the for the recommendations cooperate McCord continued to with the moved September McCord case. against in its cases his co-de- 2255 to vacate pro se under 28 U.S.C. § rearraigned August fendants. When petition sentence. McCord’s section pleaded guilty to three counts of During things, the indictment. alleged, among McCord’s Rule 11 other party represented 1. See F.R.Crim.P. 11. THE No other COURT: anything you? No, MR. Sir. Attorney McCORD: 2. After the Assistant United States Martin, attor- THE Mr. plea agreement [McCord’s COURT: recited the terms of the anything ney] anyone promised you following oth- colloquy Has occurred: Attorney has the United States er than what THE COURT: Is that a correct statement stated? plea bargain you negotiated? have Nothing. MR. MARTIN: absolutely MR. McCORD: It is correct anyone promised you THE Has COURT: every word he said. lighter sen- Mr. would receive a McCord THE COURT: That is correct? probated or a sentence? tence Correct, MR. McCORD: Your Honor. No, Honor. MR. Your McCORD: anybody promised you THE COURT: Has any THE Of kind? COURT: anything other than what has been stated any MARTIN: Of kind. MR. here the Assistant United States Attor- ney? government’s maintained that 3. McCord thing, MR. McCORD: Not a Your Honor. deprived plea bargain him of breach of the anyone promised you THE COURT: Has process guarantees Amend- of the Fifth due probated sentence sentence on alleged jurisdiction under 28 U.S.C. ment. He charges? these 1331 and §§ No, MR. McCORD: Your Honor. comply failed to government had negotiated plea bargain he
terms of the recommendation Kneir. The district Agents Clark and McCord’s section 2255 motion be denied. referred McCord’s section 2265 court also Several months later Magistrate Tolle petition to United States Magistrate Tolle’s recom- accordance with for consideration. mendation, judgment entered in favor of the United in McCord’s civil action. 1979, the defendants in the civil In March appeal On from the denial of his section filed a to dismiss McCord’s action motion petition, argues light accompanied by affidavits of McCord complaint Agent Kneir’s Agents Clark and Kneir. Clark’s affidavit he was entitled- affidavit contradicted McCord’s on the issue regarding plea agreement terms of the whether the failed to honor the agents of the FBI and the conversation bargain. original plea *4 County McCord at the Dallas Jail. supported, part,
Clark’s affidavit in II. allegations complaint in his civil petition. According and in his section 2255 A on a conviction based affidavit, Kneir Clark’s before and plea unkept has induced an been County interviewed McCord in the Dallas subject plea bargain is to collateral attack Jail: 2255. Machibroda v. under 28 U.S.C. § States, 1962, 487, 493-94, United Attorney Ething-
Assistant United States 368 U.S. 473, 478; ton 510, 513-514, instructed me to advise 82 7 L.Ed.2d S.Ct. [McCord] if States, cooperate Bryan v. 1974, United 5 Cir. en banc [he] ment, provide substantive information 775, prisoner A who about the other defendants in the crimi- has moved to vacate a sentence under 28 same, nal testify ground unkept 2255 on the of an U.S.C. § allowing Government would consider him plea bargain hearing to a is entitled to one count of the indict- the motion and files and records of “[u]nless ment. conclusively the case [peti show that The Clark affidavit denied that McCord was is entitled to no relief”. 28 U.S.C. tioner] guaranteed probation in coop- question is whether McCord’s § copy eration. McCord did not file a of the motion and the records in this case conclu Clark affidavit in of his section sively show that did not 2255 motion. honor the terms of McCord’s bargain. not, If McCord is entitled to an After filing of the Clark affidavit hearing action, in the district court. the civil Magistrate Tolle recom- mended to the district court that all relief Supreme The Court has refused to requested in the petition section 2255 apply per a rendering guilty pleas se rule Magistrate’s denied. The findings and con- subsequent invulnerable to challenge even “allegations clusions state that McCord’s [of when petitioner repudiates a 2255 § state unkept an plea bargain] are in direct con- sentencing judge ments made to the at the testimony flict with sworn at the time [his] was entered. Fontaine v. time the guilty plea sentencing”. of his The States, 1973, 213, 215, 411 93 U.S. Magistrate’s findings contain no reference 1461, 1462, 169, 172; Van affidavit, S.Ct. 36 L.Ed.2d to the Magistrate but the 1975, denades United 523 was 5 Cir. aware of the affidavit because he had 11, 1220, peti F.2d 1223-24. A section 2255 May handled McCord’s civil action.4 On 1979, tioner, judge adopted, district without such as whose copy Conclusions, Magistrate’s “Findings, “Findings, 4. A Conclu- and Recommenda- judge sions and Recommendations” in the section civil tions” to the district action. judgment Magistrate apparently 2255 case and the district court The treated these two that case were attached to the actions as related cases.
393
by Dugan
1975,
unkept plea
are contradicted
5
an
court F.2d 231.
open
own
declarations
solemn
during plea
sentencing hearing,
faces
Dugan,
section
who
“barrier,
although imposing, is
[that]
serving
imprison-
was
a seven-year term of
Blackledge v.
invariably insurmountable”.
alleged
an unkept
bargain.
ment
The
Allison,
63, 74,
1621,
1977,
431 U.S.
S.Ct.
supported
petition
was
credible affida-
1629,
As
52 L.Ed.2d
the Court
county
vits of
deputy
stating
sheriff
Blackledge:
stated
that both state and federal officials had
promised Dugan
originally
a sentence of
administering
the writ of
cor-
habeas
questioned by
years.
four
When
pus
counterpart,
and its 2255
the feder-
judge
plea hearing,
during
district
Du-
adopt
al courts cannot
se rule
fairly
per
gan
any prom-
denied that he had received
excluding
possibility
all
a defend-
guilty plea.
ises
connection with his
representations
ant’s
the time
court, on
of Dugan’s
the basis
testi-
accepted were so much
was.
guilty plea hearing,
at his
denied the
product
as
of such factors misunder-
without
section 2255 motion
duress,
standing,
misrepresentation by
appeal,
evidentiary hearing. On
this Court
others
to make the
a consti-
distinguished Bryan and
that Dugan
held
inadequate
imprison-
tutionally
basis for
peti-
was entitled to a
because his
ment.
accompanied by
tion
affidavits
credible
431 U.S. at
S.Ct.
52 L.Ed.2d
that raised a substantial
inference
at 147-48.
See Fontaine
*5
unkept plea bargain.
Id. at 233.
1462-1463;
214-15,
had
affidavit.
Magistrate
mentions the Clark
shows that
case
cantly the record
recommendation,
adopted
the section 2255 Magistrate’s
civil suit and
treated the
that “in
only
connected cases.6
states
petition as
by the district
testimony by
unequivocal
view of [the]
government’s
with
quarrel
We do not
attorney
petitioner and
[that
does not
the Clark affidavit
argument
that
At-
by the United States
agreement recited
every
allegation
advanced
verify
hearing was absolute-
Rule 11
torney at the
not di-
affidavit does
McCord. The Clark
is not enti-
every respect,] he
correct in
ly
contention that
rectly support McCord’s
prom-
belated claim of
relief on his
tled to
proba-
originally promised
probated sentences.
ises of minimum
cooperation. The
for his
tion in return
States,
492 F.2d
Bryan v. United
however,
See
pro-
that
deny,
affidavit does
ignoring the
1974)”. In addition to
(5th Cir.
square-
The affidavit
bation was discussed.
affidavit,
report
in- Clark
was authorized to
ly states that Clark
Dugan
respect
silent
conspicuously
that
form McCord
compel an
count in
to one
and later cases
consider
are
Admittedly,
cooperation.
petitioner’s
when a
return for
the offer
does not confirm
affidavits of reliable
supported by
affidavit
credible
the converse
conveyed
See,
but
v.
g.,
e.
United States
parties.
third
1022;
deny
1021,
affidavit does not
1979,
is also true. The
Sanderson,
595 F.2d
5 Cir.
short,
offer was made.
1976,
5 Cir.
Matthews v. United
whether
ambiguity
regarding
exists
denied, 1977,
901-03,
900,
cert.
F.2d
promised McCord
government originally
571;
1156,
51 L.Ed.2d
U.S.
S.Ct.
permitted
he would be
5 Cir.
Vandenades v. United
of the indictment.
one count
1223-24;
Dugan
difference between
view of the substantial
infer
logical
521 F.2d at
that would
likely period
of incarceration
Magistrate
is that
ence to be drawn
accompany a conviction on one count rather
Bryan
erroneously concluded either
three,
say
than
we cannot
that McCord’s
alle
petitioner’s
*6
controlling or that the
unworthy
are
of serious consid-
bargain were
unkept plea
gations of
eration.7
they were
inconsequential per se because
testimony at the
by
contradicted
his sworn
Significantly,
Magistrate’s
neither
the
case,
Conclusions,
either
the
sentencing hearing.8 In
“Findings,
and Recommenda-
Conclusions,
Magistrate’s “Findings,
supra.
and
6. See
note 4
also
in the civil action
Recommendations”
applicable law:
show that he misunderstood the
extensively
cooperated
with the FBI
McCord
unequivocal
in the most
Plaintiff
testified
investigators
interim between his conver-
possible
there had been no
manner
sation with
Kneir at the Dallas Coun-
Clark and
leniency
promises
suggestions
made in
of
ty
Ethington.
Jail and his
first discussion
specif-
he stated
and
suggests
This
that McCord believed that a bar-
only
ically
upon the
was based
that his
jail
gain
during
had been reached
the
house
guilty.
It is well
he was in fact
fact
Ethington
permit
refused to
interview. When
a defendant
established in this Circuit
count,
only
to
one
McCord to
complain
he
later be heard to
will not
substantially
complied
had
McCord
falsely
proceedings.
Unit-
See
swore
plea bargain
says
he
he
it
as
understood
and
Barrett,
(5th
Cir.
ed States v.
514 F.2d
bargaining leverage.
had sacrificed
of
much
1975); Bryan
states,
may
As McCord
have had no choice
1974).
squarely
(5th
with-
This case falls
Cir.
accept Ethington’s
but
to
terms. McCord
Adams,
At stake is not
records of our court
de-
possible plea agreements
convinces me that
fendant who
to a
At
pleaded
crime.
Indeed,
stake is the honor
are discussed in most cases.
United States. An
it has
will,
can,
if it
enable become one
most effective means of
to vindicate that honor.
obtaining favorable wit-
nesses multi-defendant matters.
If un-
The order of the district court is VACAT-
corroborated assertions of broken
ED and this case is REMANDED for an
agreements are
require
sufficient to
evidentiary hearing.
holding
of an
we have
surely
requirements
rendered the
of Rule 11
FAY,
Judge, dissenting:
Bryan
nullities. Neither Blackledge1
respectfully,
Most
I
Recognizing
dissent.
Dugan
consequences.
nor
intended such
that this is a rather close
I conclude its
disposition is
by Bryan
controlled
I
petition.
would affirm the denial of the
(5th
1974) (en
F.2d 231
Judge fully Wisdom has accurately
set forth both the legal facts and authori- surrounding
ties the issue before us. The
key in this case is that McCord’sallegations
*7
Blackledge
Allison,
431 U.S.
(1977).
97 S.Ct.