366 F.3d 291 | 4th Cir. | 2004
Lead Opinion
OPINION
In this case, a habeas petitioner contends that the Government made an oral promise, never incorporated into his written plea agreement, that he could conditionally plead guilty, retaining the right to appeal the denial of his suppression motion. It is undisputed that the petitioner’s lawyer erroneously informed him that the guilty plea was conditional and that the petitioner would not have pleaded guilty
I.
A grand jury charged Gavin Roderick White with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). Apparently, the police uncovered the cocaine during a traffic stop of White’s car; White moved to suppress the cocaine, asserting that the search of his car proceeded without his consent. The district court denied the motion to suppress.
Thereafter, pursuant to a written plea agreement, White pleaded guilty to the charged offense. Neither that plea agreement nor the district court’s plea colloquy expressly informed White that by pleading guilty he waived his right to appeal the suppression motion. But the plea agreement, which contained an integration clause, also did not state that White’s guilty plea was conditional. Thus, when White appealed the denial of his suppression motion to this court, we dismissed the appeal because his plea agreement did not include the express provision, described in Fed.R.Crim.P. 11(a)(2), that would have made it conditional. United States v. White, No. 98-4371, 1999 WL 371610 (4th Cir. June 8,1999)(per curiam).
Represented by new counsel, White then moved, under 28 U.S.C. § 2255 (2000), that his conviction and sentence be vacated and he be granted “all relief to which he may be entitled.” First, White asserted that his guilty plea was not voluntary and knowing because, when he entered into the plea agreement, he believed “that he was making a conditional plea, subject to the appeal of the denial of his suppression motion.” Second, White asserted that the “United States Attorney made an oral agreement” that White’s “guilty plea would be conditional, subject to the appeal of his suppression motion,” and that this “fraudulent oral agreement” induced White to enter the plea. Finally, White asserted that he had been denied effective assistance of counsel because his counsel during plea negotiations, David Heilberg, erroneously “assured him that he could appeal the denial of his suppression motion after he pled guilty.” White declared “under penalty of perjury” that all three of these assertions were “true and correct.”
In response, the Government moved for partial summary judgment, agreeing that White’s allegations amounted to ineffective assistance of counsel and urging the court to grant White’s “initial request” to vacate and then reinstate judgment, restarting the time period for filing a notice of appeal. White filed a response asserting that the Government mischaracterized the relief he requested, and clarifying that he in fact wished to have his conviction
Because this did not provide White any real relief — he would still be procedurally barred from challenging the search on appeal because his written plea agreement remained unconditional — White filed a motion for reconsideration asking the district court to either allow him to plead anew, or “[i]n the alternative” reform the plea agreement to reflect the assertedly agreed-upon conditional plea. The district court granted White’s motion to reconsider and referred the case to a magistrate judge “to conduct any or all proceedings that may arise in this civil action, including an evidentiary hearing,” and to submit all findings and recommendations to the district court.
Pursuant to this referral, the magistrate judge ordered discovery and scheduled an evidentiary hearing. Four days after entry of the discovery order and well prior to the scheduled evidentiary hearing, however, the Government moved that White be granted the relief “he sought,” which the Government characterized as “vacat[ing] the conviction and sentence” and returning. White for trial. In reply, White again disputed the Government’s characterization of the requested relief, specifying that he was not merely seeking vacatur, but also asking the court to reform the plea agreement to reflect a conditional plea. Responding, the Government argued that reformation was not a proper remedy because it had never consented to a conditional plea.
Nevertheless, no evidentiary hearing was ever held. Instead, the magistrate judge heard oral argument on whether the court should vacate White’s conviction and sentence and set the case for trial (as the Government argued), or vacate the conviction and sentence only to reenter them under a reformed conditional plea agreement (as White argued). Concluding that the Government had indeed promised White he would be entitled to appeal his suppression motion, or at the very least acquiesced to a conditional plea by failing to challenge White’s allegations through the greater part of the proceedings, the magistrate judge recommended granting White’s motion to vacate his guilty plea, permitting him to plead anew conditionally-
The district court disagreed. Noting that neither party had produced “hard, objective evidence” supporting their respective assertions, the court found dispos-itive White’s oral affirmation of the uncon
Before us, then, it is undisputed that White’s counsel at the time of the plea negotiations, David Heilberg, erroneously informed White that he could appeal the denial of his suppression motion notwithstanding the failure of the written plea agreement to contain any provision permitting this. Similarly, it is uncontrovert-ed that White relied on his lawyer’s representation in pleading guilty, which he would not have done absent this representation. Moreover, the Government concedes, and the district court found, that these facts equate to ineffective assistance of counsel, rendering White’s guilty plea involuntary and mandating vacatur of White’s conviction and sentence. Thus, as the parties agree, the only question we face is a narrow one: did the district court err in refusing to grant White any relief on his claim that the Government actually promised that he could conditionally plead?
II.
It is well-established “that when a plea rests in any significant degree on a promise ... of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Hence, as the Government properly conceded at oral argument, if a Government representative orally promised White that he could conditionally plead, White “would be entitled to the relief he’s asking for” despite his attorney’s failure to preserve this right in the written plea agreement. Proof of the Government’s refusal to abide by such an oral promise would clearly constitute evidence of “government overreaching” or “fraud in the inducement,” admissible without running afoul of the parol evidence rule. United, States v. Garcia, 956 F.2d 41, 44 & n. 4 (4th Cir.1992); see also United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986).
This is not to say that a defendant’s solemn declarations in open court affirming that agreement do not “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Indeed, because they
Yet the Supreme Court expressly held in Blackledge that “a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ [of habeas corpus] in challenging the constitutionality of his custody.” Id. at 72, 97 S.Ct. 1621. The Court explained that “no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it 'uniformly invulnerable to subsequent challenge.’ ” Id. at 73, 97 S.Ct. 1621 (emphasis added) (quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). Indeed, contrary to the dissent’s intimations, the Supreme Court has held that not even Rule U’s procedural safeguards immunize a guilty plea from collateral attack or render an evidentiary hearing on a petitioner’s contentions unnecessary. This is so because although “[t]he objective of Fed. Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues, ... like any procedural mechanism, its exercise is [not] always perfect ...” Fontaine, 411 U.S. at 215, 93 S.Ct. 1461 (remanding for an evidentiary hearing); see also United States v. Goodman, 590 F.2d 705, 710 (8th Cir.1979) (noting that “it is well established that compliance with Rule 11 does not act as an absolute bar to subsequent collateral attack upon the voluntariness of a guilty plea”); United States v. Marzgliano, 588 F.2d 395, 399-400 (3d Cir.1978) (same).
Initially, a court must determine “whether [the petitioner’s] allegations, when viewed against the record of the [Rule 11] plea hearing, were so palpably incredible, so patently frivolous or false as to warrant summary dismissal.” Id. at 76, 97 S.Ct. 1621 (internal quotation marks and citations omitted).
With these governing principles in mind, we turn to the case at hand.
III.
We first examine whether the district court erred in summarily dismissing White’s allegations. In his sworn § 2255 petition, White alleges that “[t]he United States Attorney made an oral agreement that [White’s] guilty plea would be conditional, subject to the appeal of the denial of his suppression motion,” and that his “plea of guilty was ... induced” by this “fraudulent oral agreement.” Despite ample opportunity to respond to these allegations, the Government has steadfastly refused to introduce any affidavit or other direct evidence attesting that no Government agent promised White he could appeal his suppression motion. Nonetheless, without holding an evidentiary hearing, the district court summarily rejected White’s allegations, reasoning that White, during the plea colloquy at his Rule 11 hearing, had affirmed the written plea agreement and had failed to “prove by a preponderance of the evidence that the government made an oral agreement that was not memorialized in the final written plea agreement.”
Although, as Blackledge teaches, a court can summarily dismiss allegations of a petitioner who attempts to challenge statements made during his plea colloquy or in his plea agreement, the district court in this case subjected White’s allegations to the wrong legal standard. A court cannot summarily dismiss a petitioner’s allegations simply because the petitioner has yet to prove them by a preponderance of the evidence. Summary dismissal of habeas allegations is “warrant[ed]” only if a habeas petitioner’s allegations “when viewed against the record of the plea hearing,” are “palpably incredible” or “patently frivolous or false.” Blackledge, 431 U.S. at 76, 97 S.Ct. 1621 (internal quotation marks and citation omitted). Thus, the proper inquiry here is: are White’s sworn allegations that a Government prosecutor made an oral agreement that his guilty plea was conditional “palpably incredible” or “patently frivolous or false” when viewed against the record of White’s plea hearing?
That record undeniably reveals that the sentencing court engaged White in a proper Rule 11 colloquy and that White affirmed his assent to a written agreement that, in fact, contained no provision for a conditional plea. However, neither party disputes that the record of the plea hearing also evidences an involuntary plea, which White entered only because constitutionally ineffective counsel specifically assured him that entering into that plea would not prevent him from appealing the denial of his suppression motion. Moreover, the record demonstrates that neither the written plea agreement nor any aspect
First, one of the central purposes of a Rule 11 plea colloquy — to ensure that a “defendant’s plea is truly voluntary” — has been defeated in the case at hand. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Ultimately, “the validity of a bargained guilty plea depends ... on the voluntariness and intelligence with which the defendant — and not his counsel — enters the bargained plea.” Harvey, 791 F.2d at 301. But here the Government concedes and the district court held that White’s guilty plea (which implicitly included the waiver of his right to appeal) was involuntary. Thus, in this case, the commendable procedures of the Rule 11 plea colloquy failed to achieve one of their primary purposes — to ensure the voluntariness of White’s guilty plea. As such, it would be perverse to allow White’s affirmations during these proceedings to serve as an insurmountable barrier to his claim.
This is particularly critical given the reason White’s plea has been held involuntary. The Government conceded and the district court held the plea involuntary because Heilberg — the attorney representing White during his plea hearing — was constitutionally ineffective in assuring White that the plea was conditional. Although simply being represented by ineffective counsel, of course, does not entitle a defendant to reformation of a plea agreement, it certainly diminishes the substantial weight normally accorded to a defendant’s in-court representations. See Crawford v. United States, 519 F.2d 347, 350 (4th Cir.1975)(noting, in dicta, that “if the accused has waived counsel at the taking of his plea, his Rule 11 statements may be less conclusive than if he had been represented,” and in those circumstances “an evidentiary hearing is required”), overruled on other grounds by United States v. Whitley, 759 F.2d 327 (4th Cir.1985); Hedman v. United States, 527 F.2d 20, 22 (10th Cir.1975)(distinguishing the Court’s decision to grant an evidentiary hearing in Fontaine in part on the ground that Fon-taine involved an “uncounself ]ed plea”). Moreover, in this case it would be grossly unjust to turn a blind eye to White’s allegations that the Government agreed to preserve his appellate rights when he was represented by counsel deemed ineffective for erroneously informing him of precisely that.
Furthermore, we believe it significant that nothing in the written plea agreement contravenes White’s allegations. Compare Hartman, 825 F.2d at 30. Indeed, the plea agreement nowhere mentions the right to appeal, or waiver of that right. Although a guilty plea constitutes an auto
Nor did the district court orally clarify the issue during the Rule 11 hearing. The court never advised White that by entering into a guilty plea he waived his right to appeal. Moreover, in its only express mention of White’s appellate rights, the court inquired as to whether White “un-derst[oo]d ... that in some circumstances, either you or the Government may have the right to appeal any sentence which I impose[.]” This might confirm to a layman that he had indeed preserved a right to appeal.
The remainder of the plea colloquy did not eliminate the possibility of a layman making this assumption. In it, White acknowledged that he had reviewed the plea agreement, had no questions about it, and fully understood it. He affirmed that it “actually reflect[ed]” his agreement, and that “aside from the plea agreement, ... [nobody] made any other promise or assurance ... of any kind in any effort to induce him to plead guilty.” Neither these nor the other questions put to White during the plea colloquy would have alerted him to the fact that his right to appeal was waived in the absence of a provision preserving that right — particularly when his own lawyer expressly told him otherwise.
Moreover, the dissent’s repeated contention that the district court “questioned both Heilberg and the prosecutor about the agreement’s contents,” post at 304; see also post at 309, is belied by the record. In fact, the judge asked the attorneys just one question about the “agreement’s contents” — whether the assessment fee should be $50 or $100. And, the district court only “asked Heilberg and the prosecutor if there was ‘anything further in the case [at this time] other than to set up a sentencing [date],’ ” post at 304, after the court had accepted the plea agreement, taken White’s plea, adjudged White guilty, and ordered a presentence report. In reality, the attorneys’ “involve[ment] in the Rule 11 colloquy,” post at 309 n. 12, upon which the dissent so heavily relies, consisted of a few terse responses to routine questions having nothing whatsoever to do with the plea agreement.
IV.
We therefore must consider whether White’s non-frivolous allegations that the Government orally promised he could conditionally plead can be resolved without an evidentiary hearing. As noted above, summary judgment provides a viable mechanism for disposing of even non-frivolous habeas petitions in the proper case. See Blackledge, 431 U.S. at 80-81, 97 S.Ct. 1621. Of course, the district court did not purport to grant summary judgment here. Rather, the court weighed the evidence under a “preponderance of the evidence” standard — a standard altogether foreign to summary judgment.
Nevertheless, both sides — White and the Government — contend that the district court could, and should, have granted summary judgment in its favor. “The fact that both parties simultaneously are arguing that there is no genuine issue of fact does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit.” TFWS v. Schaefer, 325 F.3d 234, 241 (4th Cir.2003)(internal quotation marks and citation omitted). Rather, a court may grant summary judgment only when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(c), with “any permissible inferences ... drawn from the underlying facts to be viewed in the light most favorable to the party opposing the motion.” United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991).
The Government’s claimed entitlement to summary judgment rests largely on its repeated contention in court submissions that it did not orally agree to a conditional plea. But an attorney’s unsworn argument does not constitute evidence, and the Government has offered no affidavit, deposition, sworn statement, or other direct evidence that a Government agent did not make the oral promise. The only proof the Government offers that it made no such promise is the plea colloquy and written plea agreement. Although as noted above they “carry a strong presumption of verity,” they do not render a guilty plea “invulnerable,” Blackledge, 431 U.S. at 73, 74, 97 S.Ct. 1621 (internal quotation marks omitted), particularly given that the only
In his sworn petition, White unequivocally states that “[t]he United States Attorney made an oral agreement that [White’s] guilty plea would be conditional, subject to the appeal of the denial of his suppression motion.”
In sum, the record evidence to date certainly contains a dispute of material fact sufficient to preclude the grant of summary judgment to the Government. See Peavy v. United States, 31 F.3d 1341, 1346 (6th Cir.1994)(finding petitioner entitled to an evidentiary hearing when the only evidence in the record was an affidavit supporting petitioner’s claims, and con-eluding that “the government must present evidence in support of its position,” and that its “unverified responses ... were plainly inadequate”).
We find White’s contention that he merits summary judgment equally unpersuasive. White principally bases his argument on statements made by the Government in its Motion for Partial Summary Judgment, responding to White’s sworn § 2255 petition. There, the Government stated, inter alia,
no material factual issues [are] in contention .... Petitioner has alleged facts which, even if not true, would entitle him to a hearing, and ... the United States’ evidence on these points would likely not overcome the petitioner’s evidence, if the petitioner’s evidence were believed.
White maintains that by these statements, the Government conceded that it made the alleged oral promise that White could enter a conditional guilty plea.
This argument ignores the very next paragraph of the Government’s Motion, which clarifies that “[i]n reaching this conclusion,” it “relies exclusively” on Heil-berg’s sworn affidavit admitting that “his own professional errors deprived White of an opportunity to preserve his appeal after the plea,” errors which the Government recognized “ma[de] out a prima facie case of ineffective assistance of counsel.” Thus, the Government plainly did not concede that it had made the alleged oral promise; it simply conceded that White had produced evidence demonstrating ineffective assistance of counsel.
Indeed, the need for an evidentiary hearing is particularly compelling in this case. Although neither defense nor Government counsel has directly attested under oath to the existence of an oral agreement (nor were they questioned about the agreement during the Rule 11 hearing), both have made express representations in their court submissions, acting as officers of the court, and those representations directly contradict each other. When, as here, the factual allegations “relate[] primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light,” Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), and where the ultimate resolution rests on a credibility determination, Raines v. United States, 423 F.2d 526, 530 (4th Cir.1970), an evidentiary hearing is especially warranted.
Accordingly, we remand for an eviden-tiary hearing on the question of whether the Government did make the alleged oral promise that White’s plea was conditional, permitting him to appeal denial of the suppression motion.
V.
For all of these reasons, we vacate the judgment of the district court and remand
VACATED AND REMANDED
. Courts have interpreted Fed.R.Crim.P. 11(a)(2) to make “direct review of an adverse ruling on a pre-trial motion ... available only if the defendant expressly preserves that right by entering a conditional guilty plea.” United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990).
. Although never asserting that White somehow failed to preserve a reformation remedy, the Government also criticized White’s "unreliable expression of [remedial] preference.” But it is well-established that pursuant to Fed.R.Civ.P. 54(c), a court has broad power to "grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” See Minyard Enters., Inc. v. Southeastern Chem. & Solvent Co., 184 F.3d 373, 385-86 (4th Cir.1999). The dissent does not challenge this statement of hornbook law, but it does intimate that White improperly seeks to retain the sentence he received under the plea agreement and pursue an appeal of the denial of his suppression motion. See post at 305-306. But there is nothing improper about this request — if the Government agreed to a conditional plea, then, as Government counsel conceded at oral argument, White certainly would be "entitled” to seek to hold the Government to its promise and retain the benefit of his bargain.
. Hartman v. Blankenship, 825 F.2d 26, 29 (4th Cir.1987), which preceded Garcia, contains some dicta suggesting that a defendant can never use parol evidence to vary the terms of an unambiguous written plea agreement. But Hartman itself goes on to acknowledge that this is not always the case. See id. (noting that "the record made in the arraignment proceeding [i.e. the Rule 11 colloquy and plea agreement] is not invariably immune from post-conviction attack”); see also Blackledge v. Allison, 431 U.S. 63, 74-75 & n. 6, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Bemis v. United States, 30 F.3d 220, 222-23 (1st Cir.1994) (collecting cases). Moreover, the holding in Hartman presents no conflict with our holding in this case. In Hartman, this court refused to permit the grant of a writ of habeas corpus when the state court, after holding an evidentiary hearing, rejected petitioner's allegation that the prosecutor had made an oral promise expressly contradicted by the written plea agreement, 825 F.2d at 26-28, whereas here, we only require an evidentiary hearing (not the grant of a writ of habeas corpus) to determine if a prosecutor made an oral promise, a promise that is not expressly contradicted by anything in the written plea agreement.
. The dissent maintains that this is not the "proper test”; that it does not apply when "procedures similar to those dictated by Rule 11 ” are utilized. Post at 306-307. According to the dissent, after a Rule 11 colloquy, an evidentiary hearing is only available in the "most extraordinary circumstances.” Id. at 307. We agree that when Rule ll's safeguards are afforded to a defendant, an eviden-tiary hearing will indeed be rare, but stating that a hearing is only available in "extraordinary circumstances” begs the question of when such circumstances exist. To answer this question, a court must weigh a petitioner's allegations against the record (including the Rule 11 plea colloquy) as mandated by Blackledge. In conducting this analysis, often the petitioner’s allegations will be deemed "palpably incredible" or "patently frivolous or false” in light of affirmations made at the Rule 11 hearing. But, the Blackledge "palpably incredible” test still applies when petitioners have been provided proper plea procedures, see e.g., Tran v. Lockhart, 849 F.2d 1064, 1067-69 (8th Cir.1988); Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985); United States v. Unger, 665 F.2d 251, 254 (8th Cir.1981); McKenzie v. Wainwright, 632 F.2d 649, 651-52 (5th Cir.1980), though petitioners will only be able to satisfy it in "extraordinary circumstances.” No case cited by the dissent espouses the dissent's theory, i.e. that after a Rule 11 hearing or its equivalent, the "palpably incredible” standard does not apply. Indeed, in the dissent's lead case, in the course of denying a petitioner an evidentiary hearing because the case did not involve "extraordinary circumstances,” the Tenth Circuit expressly relied on and quoted its earlier interpretation of Blackledge, refusing to order an evidentiary hearing because petitioner's claims were "wholly incredible.” See Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir.1996)(quoting Phillips v. Murphy, 796 F.2d 1303, 1305 (10th Cir.1986)).
. Although the dissent acknowledges that White "[u]nquestionably” entered "an unknowing and involuntary plea,” it nonetheless insists that White’s affirmations be given conclusive weight. Post at 308. But the reason why a petitioner's statements during the Rule 11 hearing are often conclusive is because the procedural safeguards are believed sufficient to demonstrate voluntariness. See United States v. Bowman, 348 F.3d 408, 417 (4th Cir.2003) ("The Rule 11 colloquy is designed to provide a structure to protect the defendant against making an uninformed and involuntary decision to plead guilty ... ”) (emphasis added); see also Pennington v. Housewright, 666 F.2d 329, 332 (8th Cir.1981). When, as here, these admittedly imperfect safeguards fail, and the colloquy is tainted by involuntariness, the weight given to a defendant’s declarations must be diminished accordingly. None of the cases relied on by the dissent suggest otherwise; indeed, none of them involve a concededly involuntary plea.
. We do not suggest that the district court in any way violated Rule 11; that rule "does not require a district court to inform a defendant that, by pleading guilty, [he] is waiving [his] right to appeal any antecedent rulings or constitutional violations.” See United States v. Floyd, 108 F.3d 202, 204 n. 2 (9th Cir.1997).
. To the extent that the dissent seeks to portray White as a well-educated and savvy career criminal, more astute than a mere "lay person,” post at 303-304 n. 2, this characterization is not borne out by the record. In fact, White scored a 60 and 79 on his two IQ tests, dropped out of high school in the eleventh grade, and although he attended college, he received "poor” grades and only accrued nine credits during a two-year period. And, although White was sentenced as a career offender because of two prior drug offenses, he had only been in federal court on one previous occasion.
.For example, Heilberg, White's lawyer, spoke only fifty-eight words (less words than in this footnote) during the entire thirty-minute plea hearing. Thus, contrary to the dissent's suggestion, post at 309-310, the lawyers' minimal involvement in the plea colloquy here is a far cry from that mandated by the revised North Carolina procedures that the Blackledge Court found "commendable.” See Blackledge, 431 U.S. at 79, 97 S.Ct. 1621 (explaining that the revised North Carolina procedures require "Specific inquiry about whether a plea bargain has
. Of course, simply filing a sworn declaration alleging that the Government made promises outside the written plea agreement does not make those allegations non-frivolous, and certainly does not entitle the petitioner to an evidentiary hearing. Rather, a petitioner must first overcome the "formidable barrier” erected by the representations he made in open court at the plea proceedings, and even then, as detailed above, an evidentiary hearing may not be required. See Blackledge, 431 U.S. at 74, 97 S.Ct. 1621.
. Alternatively, relying on Fed.R.Civ.P. 8(d), White contends that the Government’s "response,” by failing to deny his sworn allegations of an oral promise, must be "deemed” to have admitted those allegations. We dis
. Of course, if one side concedes the correctness of the other’s position on this issue, eliminating any factual dispute, no hearing would be necessary.
Dissenting Opinion
dissenting:
The effect of the majority opinion is to require an evidentiary hearing nearly every time a prisoner files a § 2255 petition alleging that he was induced to plead guilty by an oral promise from the prosecutor. It is undisputed in this case that White signed an unambiguous and unconditional plea agreement and swore during his Rule 11 plea colloquy that he understood the written plea agreement and that no one had made any other promises to him to induce him to plead guilty. I believe that, given these facts, White’s later unsupported assertion in his sworn § 2255 petition that the prosecutor made an oral promise that he could appeal the denial of his suppression motion is insufficient to overcome the presumption that the statements he made during his Rule 11 plea colloquy are accurate and truthful. Accordingly, I do not believe that an evidentiary hearing is necessary or appropriate in this case, and I respectfully dissent.
Because the conceded ineffectiveness of White’s trial counsel made White’s guilty plea involuntary, I would affirm the district court’s vacatur of White’s conviction and sentence and remand the case for trial.
I.
On November 17, 1997, White pleaded guilty to possession of cocaine with intent to distribute. White’s unconditional plea agreement contained the following clause: “This agreement constitutes the full and complete understanding among the parties.” (J.A. at 92.) As the majority acknowledges, White affirmed this written agreement at his Rule 11 plea colloquy and stated that the agreement “accurately reflected” his agreement with the Government, and that, “aside from the written plea agreement, [no one had] made any other promise or assurance to [him] of any kind in any effort to induce [him] to plead guilty.” (J.A. at 359.) White also stated that he had reviewed and fully understood the plea agreement.
After the district court accepted White’s plea, White attempted to appeal the denial of his pretrial suppression motion, but we dismissed his appeal because he had not preserved his right to appeal as required by Federal Rule of Criminal Procedure 11(a)(2) (West Supp.2003). United States v. White, 1999 WL 371610 (4th Cir.1999) (unpublished). White then filed a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.2003) to vacate, set aside, or correct his sentence.
In his sworn § 2255 petition, White asserted that his guilty plea was not voluntary and knowing because his attorney had advised him that “he could appeal the denial of his suppression motion after he pled guilty,” and because he “was induced [to plead guilty] by the prosecutor’s fraudulent oral agreement that the plea was conditional.” (J.A. at 44.) Attached to his § 2255 petition were a letter and an affidavit from Heilberg. In the letter, dated October 30, 1997, approximately three weeks before White pleaded guilty, Heil-berg wrote, “As you can see from the Wilson
The district court then granted White’s § 2255 petition and gave him the remedy that normally follows a finding that a guilty plea was unknowing and involuntary' — the court vacated White’s guilty plea and instructed the clerk to set the case for trial. See, e.g., O’Tuel v. Osborne, 706 F.2d 498, 501 (4th Cir.1983) (holding that when a guilty plea is involuntary “the writ [of habeas corpus] should issue subject to the state’s right to bring [the defendant] to trial within a reasonable period of time”). Realizing that he would no longer receive the benefit of the reduced sentence that had accompanied his guilty plea,
White avers that, based on the record, he is entitled to reformation of his plea agreement, so that it will reflect the terms of his alleged oral agreement with the prosecutor. In the alternative, White wants the district court to hold an eviden-tiary hearing so that he can prove the existence of the oral agreement and thus gain reformation of the plea agreement. In short, White wants both to keep the benefits of the favorable sentence that he received under his plea agreement and to be able to appeal the denial of his pretrial suppression motion.
II.
A.
Because this case does not involve the most extraordinary circumstances, the sworn statements that White made during his plea colloquy bar his subsequent attempt to prove that he relied on an oral promise made by the prosecutor. “Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). “[R]epresentations of the defendant ... at [plea] hearing[s] ... constitute a formidable barrier in any subsequent collateral proceedings,” id. at 73-74, 97 S.Ct. 1621, because courts must be able to rely on the defendant’s statements made under oath during a properly conducted Rule 11 plea colloquy. United States v. Bowman, 348 F.3d 408, 417 (4th Cir.2003); see Crawford v. United States, 519 F.2d 347, 350 (4th Cir.1975) (“[T]he accuracy and truth of an accused’s statements at a Rule 11 proceeding in which his guilty plea is accepted are ‘conclusively’ established by that proceeding unless and until he makes some reasonable allegation why this should not be so.”), partially overruled on other grounds by United States v. Whitley, 759 F.2d 327 (4th Cir.1985) (en banc). “To allow indiscriminate hearings in federal post-conviction proceedings ... would eliminate the chief virtues of the plea system—speed, economy, and finality.” Blackledge, 431 U.S. at 71, 97 S.Ct. 1621. Accordingly, when a defendant attempts to contradict statements that he made during a properly conducted plea colloquy in a collateral attack on his sentence, he will be entitled to an eviden-tiary hearing “only in the most extraordinary circumstances.” Id. at 79 n. 19, 97 S.Ct. 1621.
My colleagues hold that a district court is required to hold an evidentiary hearing unless a habeas petitioner’s allegations, even those contradicting sworn statements made during his Rule 11 colloquy, are “ ‘palpably incredible’ or ‘patently frivolous or false.’ ”
Blackledge was decided shortly after the Supreme Court first blessed the practice of plea bargaining, see Santobello v. N.Y., 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and well before district courts had become familiar with the procedures mandated by Rule 11. Blackledge, 431 U.S. at 79, 97 S.Ct. 1621. Before Santobello, plea bargaining was generally kept secret, and defendants often were instructed to lie about the deal that they had received. Id. at 79 n. 17, 97 S.Ct. 1621. In Blackledge, the North Carolina court that had accepted the defendant Allison’s guilty plea had not conducted a plea colloquy in the modern sense, but instead “read from a printed form 13 questions, generally concerning
Had there been no properly conducted Rule 11 colloquy in this case, the “ ‘palpably incredible’ or ‘patently frivolous or false’ ” standard likely would apply. The Court in Blackledge noted approvingly, however, that North Carolina had, after the time of Allison’s plea, adopted procedures similar to those now dictated by Rule 11. Id. at 79 & n. 18, 97 S.Ct. 1621. The Court opined that “[h]ad these commendable procedures been followed ... Allison’s petition would have been cast in a very different light.” Id. The Court continued,
[A] petitioner challenging a plea given pursuant to procedures like those [required by Rule 11] ... will necessarily b[e] asserting that not only his own transcribed responses, but those given by two lawyers, were untruthful. Especially as it becomes routine for prosecutors and defense lawyers to acknowledge that plea bargains have been made, such a contention will entitle a petitioner to an evidentiary hearing only in the most extraordinary circumstances.
Blackledge, 431 U.S. at 80 n. 19, 97 S.Ct. 1621. Thus, Blackledge’s “palpably incredible” and “patently frivolous or false” language does not apply to cases in which “procedures like those” specified in Rule 11 are used.
The only possible “extraordinary circumstance” that could justify holding an evidentiary hearing in this case is Heil-berg’s ineffectiveness. Unquestionably, Heilberg was constitutionally ineffective, and his ineffectiveness resulted in an unknowing and involuntary plea. But, as explained below, Heilberg’s ineffectiveness is immaterial to the reliability of the specific representations made by White during his plea colloquy. Accordingly, I do not believe that this case presents us with “the most extraordinary circumstances,” and I conclude that we are entitled to rely upon White’s sworn assertion that, aside from the written plea agreement, no one had “made any other promise or assurance to [him] of any kind in any effort to induce [him] to plead guilty.” (J.A. at 359.)
As the Government concedes, Heilberg erroneously promised White that he would be able to appeal the denial of his pretrial suppression motion despite his guilty plea. This admitted ineffectiveness, however, would not have induced White to conceal or deny the existence of an oral agreement with the prosecutor. White stated during his plea colloquy that he had gone over the plea agreement and understood it. It is undisputed that the plea agreement did not contain a term preserving his right to
Moreover, as the district court reviewed the plea agreement and questioned Heil-berg and the prosecutor about its contents, neither attorney averred that the plea was conditional. Therefore, White is, in essence, averring not only that he lied during his Rule 11 colloquy, but that both his attorney and the prosecutor remained silent when each had a duty to inform the court of any agreements not contained in the written plea agreement. See Fed.R.Crim.P. 11(c)(2) (“The parties must disclose the plea agreement in open court when the plea is offered....”); Bryan v. United States, 492 F.2d 775, 781 (5th Cir.1974) (“[T]he defendant and all counsel have a duty to disclose the existence and details of any agreement which relates to the plea tendered.”). This is exactly the situation that the Blackledge court noted would almost never entitle petitioners to evidentiary hearings. Blackledge, 431 U.S. at 80 n. 19, 97 S.Ct. 1621.
Because Heilberg’s ineffectiveness does not relate to or explain White’s sworn statement during the Rule 11 plea colloquy that he had received no promises not included in the plea agreement, this case does not present us with the type of extraordinary circumstance that would justify an evidentiary hearing to determine whether such a promise was made. Instead, we are entitled to rely upon the text of the plea agreement and White’s Rule 11 plea colloquy, in which he disavowed the existence of such an agreement. Accordingly, White is not entitled to an evidentia-ry hearing.
B.
Not only does my conclusion that White is not entitled to an evidentiary hearing comport with a proper interpretation of
I acknowledge that the parol evidence rule is not applied as strictly to plea agreements as it is to commercial contracts. See United States v. Garcia, 956 F.2d 41, 44 (4th Cir.1992) (enforcing a promise in the cover letter sent by the government along with a plea agreement when the government conceded that it had made the promise). This is because we will not allow the government to “take advantage of a rule of contract law to
III.
In sum, under the majority’s rationale, nearly every time that a convicted criminal defendant asserts that he was induced to plead guilty by an oral promise from the prosecutor, he will be entitled to an evi-dentiary hearing, even if his allegations conflict with the unambiguous terms of his written plea agreement and his sworn statements made during a Rule 11 plea colloquy. Given that “more often than not a prisoner has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea,” this will result in an enormous waste of governmental resources.
. Given that I believe that the appropriate disposition of this case is granting White’s petition for collateral relief, I cannot understand my colleagues' view that I "intimat[e]” that "Rule ll’s procedural safeguards immunize a guilty plea from collateral attack.” Ante at 296. I also do not believe that Rule ll’s procedural safeguards always render an evidentiary hearing unnecessary. Indeed, I believe that the case cited by the majority, Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), a case in which the petitioner introduced documentary evidence supporting his claim that he was severely ill, both physically and mentally, and uncounseled at the time of his Rule 11 colloquy, is a paradigmatic example of a case involving the most extraordinary circumstances entitling a petitioner to an evidentiary hearing.
. I note that White does not claim that his intelligence or mental capabilities were impaired during the plea colloquy. In fact, during the plea colloquy, White testified that he was thirty-six years old, not under the influence of drugs or alcohol and that he had attended two years at Virginia State University. (J.A. at 349.) The district court also advised him that "If [he] d[id]n’t understand any of the questions or if at any time [he] want[ed] to talk with Mr. Heilberg, all [he] ha[d] to do [was] say so.” (J.A. at 350.) The court further instructed White that he was "under oath and if [he] answer[ed] any of the Court's questions falsely, then those false answers [could] later be used against [him] in another prosecution for perjury or for the making of a false statement.” (J.A. at 350-51.)
The majority claims that a lay person might have misunderstood the district court’s question whether White understood that "in some circumstances, either [he] or the Government may have the right to appeal any sentence which [the court] may impose.” Ante at 299; (J.A. at 357 (emphasis added).) White, however, was not simply a lay person; White was
. The plea agreement was signed by Assistant United States Attorney, Ray Fitzgerald. The Government was represented by another Assistant United States Attorney, Joel Vengrin, at the Rule 11 hearing. For convenience's sake, we will refer to all attorneys representing the Government in this case as "the prosecutor.”
. Although it is not completely clear, Heilberg was likely referring to United States v. Wilson, 953 F.2d 116 (4th Cir.1991), a case in which a defendant had preserved his right to appeal the denial of his pretrial suppression motion as part of his guilty plea. If this is in fact the case that Heilberg was referencing, his concession of incompetence is unremarkable, given that Wilson specifically noted that the defendant had reserved his right to appeal. Id. at 120.
.The Government did not concede that, as part of the plea agreement, Heilberg told White that he would be able to appeal the denial of his pre-trial suppression motion. Indeed, no evidence in the record would support a finding that Heilberg told White that the plea agreement contained a term allowing him to plead conditionally. In fact, the evidence shows the exact opposite. White himself avers that he relied on the "prosecutor’s fraudulent oral agreement that the plea was conditional” and that "the written agreement [did not] ... alert [him ] that his plea was unconditional.” (J.A. at 44 (emphases added).) Moreover, as noted above, Heilberg never has claimed that he advised White that the written plea agreement was conditional. Instead, the evidence shows that Heilberg incompetently believed that the plea agreement did not need to be conditional to avoid waiving White's right to appeal. (J.A. at 63.)
The majority believes that Heilberg's statement that he "failed to comply with the technical requirements of Rule 11(a)(2),” (J.A. at 59), supports an inference that Heilberg failed "to incorporate the Government’s oral promise into the final written plea agreement.” Ante at 300-301. I respectfully disagree. No reasonable fact finder could infer from that statement that Heilberg was claiming to have had an oral agreement with the prosecutor, especially given the content of the rest of Heilberg's letter, which clearly blames White’s predicament on Heilberg’s own errors. Had Heilberg actually made an oral agreement with the prosecutor, he would not have alluded to it in such a tangential way.
. Under the plea agreement White received a sentence of 262 months of imprisonment based on his acceptance of responsibility. If convicted at trial, the guideline sentencing range would have been 360 months to life imprisonment based on his status as a career offender. See United States Sentencing Guidelines Manual § 4B1.1 (1997); (J.A. at 24, 93). In addition, the district court had ordered — erroneously, the Government contends — that his sentence run concurrently with a state law conviction instead of consecutively to it. After the vacatur of White's guilty plea, White lost the benefit of this favorable sentencing.
. Contrary to the majority’s contention, see ante at 294 n. 2, this factual description of the relief that White seeks is not intended to "intimate” that this would be a legally impermissible remedy in an appropriate case.
. The majority labels this standard a "formidable barrier” that habeas petitioners must overcome. Ante at 301 n. 9. Given the majority’s decision to require an evidentiary hearing in this case, where White merely has made assertions that are directly contradicted by the text of the plea agreement and his testimony at the plea colloquy, I hardly think that "formidable” is the appropriate adjective.
. By ignoring this aspect of the Blackledge opinion, the majority creates a rule of law that is in direct contravention of the efficiency objective underlying Rule 11 and the holding in Blackledge. One of the major purposes of Rule 11 is "to permit quick disposition of baseless collateral attacks.” Blackledge v. Allison, 431 U.S. 63, 79 n. 19, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). If district courts are forced to hold an evidentiary hearing every time a habeas petitioner makes an assertion that is not patently frivolous that the prosecutor made an oral promise not contained in the plea agreement, this aim of Rule 11 is frustrated. Notwithstanding my colleagues' assertion to the contrary, see ante at 299 n. 6, the practical effect of this rule will be to require district courts to expand the Rule 11 colloquy to avoid wasteful collateral litigation. For example, following this case, a district court will feel compelled to inform defendants that they are waiving their right to appeal the denial of pretrial motions. Perhaps in the next case, a habeas petitioner will assert that the prosecutor promised him that he would receive a certain amount of visitation time with his family while incarcerated or that he would be confined in a certain prison. Need district courts specifically inform defendants that they are not entitled to such privileges unless they are included in their written plea agreements? Under the majority’s opinion, I believe that they must, because a negative response to the question “did anyone 'ma [k]e any other promise or assurance to you of any kind in any effort to induce you to plead guilty’ ” will no longer suffice to insulate a guilty plea from these sorts of collateral attack.
. Although the "most extraordinary circumstances” standard derives from the language of Blackledge, I note that this standard accurately describes the practice of the various Courts of Appeals even before Blackledge. See, e.g., Bryan v. United States, 492 F.2d 775, 781 (5th Cir.1974) (en banc) (holding that an evidentiary hearing is not required when a petitioner's uncorroborated allegations of an unkept plea bargain are directly contradicted
. The majority relies on the decisions of several of our sister circuits to support its use of the "palpably incredible” standard in this case. See ante at 296 n. 4 (citing Tran v. Lockhart, 849 F.2d 1064 (8th Cir.1988); Marrow v. United States, 772 F.2d 525 (9th Cir.1985); United States v. Unger, 665 F.2d 251 (8th Cir.1981); McKenzie v. Wainwright, 632 F.2d 649 (5th Cir.1980)).
I believe that, to the extent that they are not distinguishable, the cases relied on by the majority reflect an ill-considered reading of Blackledge, and for the reasons discussed in the text, I would follow the approach of Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.1996), and Pennington v. Housewright, 666 F.2d 329, 331-33 (8th Cir.1981).
. Even if I were to accept the majority’s position that a prisoner is entitled to an evi-dentiary hearing unless his allegations are " 'palpably incredible’ or 'patently frivolous or false/ ” I would conclude that White's allegations fail to meet even this lenient test. As mentioned above, all of the evidence in this case, other than White's self-serving assertions, demonstrates that Heilberg misunderstood the applicable law and accordingly promised White that he could appeal the denial of his pretrial suppression motion regardless of the terms of the plea agreement. White then disclaimed the existence of any oral agreements with the prosecutor in writing, by signing his plea agreement, and again orally during his Rule 11 plea colloquy. Furthermore, neither Heilberg nor Vengrin mentioned any such oral agreement, despite the fact that they were involved in the Rule 11 colloquy. In the face of this evidence, White's allegations of having had an oral agreement with the prosecutor are ''palpably incredible.”
. My colleagues attempt to cast doubt upon the continuing validity of the parol evidence rule in cases where a defendant challenges the terms of an unambiguous written plea agreement. Ante at 295 n. 3. By doing so, I fear that the majority significantly undermines the sanctity of the written plea agreement and leaves us open to the “chaos of post-factum reconfiguration[s].’’ Hartman, 825 F.2d at 28. Additionally, I fear that the majority has led us astray from the majority of our sister circuits. Contrary to the majority’s assertion, Hartman 's holding was that the parol evidence rule bars consideration of alleged oral agreements that vary the terms of an unambiguous written plea agreement if the written document is intended to be the final, exclusive expression of the parties' bargain. Id. at 29, 31. Importantly, the district court in Hartman did not hold an evidentiary hearing, and we remanded with instructions that the court dismiss Hartman’s petition, not that it hold an evidentiary hearing to determine whether Hartman's allegations were true. Id. at 31.
. Not only will district courts be forced to hold evidentiary hearings, prosecutors will be forced to seek out and prepare witnesses and evidence in order to rebut the petitioner’s allegations — often well after the substance of the allegations will have been alleged to have occurred. This is exactly what Rule 11 and the parol evidence rule are designed to prevent. Cf. Blackledge, 431 U.S. at 80 n. 19, 97 S.Ct. 1621 ("A principal purpose of the ... statutory reforms [like Rule 11] [i]s to permit quick disposition of baseless collateral attacks.”); Hartman v. Blankenship, 825 F.2d 26, 28 (4th Cir.1987)("[O]therwise, a disaffected party, unhappy with what his bargain has bought for him, could easily supplant the order of a concluded agreement with the chaos of a post-factum reconfiguration of the bargain.”).
The majority opinion repeatedly emphasizes that the Government has not offered an affidavit or other sworn evidence denying the existence of an oral agreement. See ante at 294, 297, 300, 302. Of course, as noted above, the whole reason for having Rule 11 colloquies and for applying the parol evidence rule is precisely so that the Government will not have to offer evidence or affidavits in cases such as this one, where the only evidence of an alleged oral agreement is the sworn statement of the petitioner himself, a statement contradicting the testimony that he gave during his plea colloquy.
