862 F.

2d 371

John James OUELLETTE, Petitioner, Appellant,

v.
UNITED STATES of America, Respondent, Appellee.
No. 88-1367.

United States Court of Appeals,

First Circuit.
Heard Oct. 6, 1988.
Decided Nov. 23, 1988.

Michael S. Solender, Yale Law Student, New Haven, Conn., with whom
John L. Pottenger, Jr., Stephen Wizner, Shelley Geballe, Mary A.
McCarthy, Robert A. Solomon and Jerome N. Frank Legal Services
Organization were on brief for petitioner, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen,
U.S. Atty., and Joseph H. Groff, III, Asst. U.S. Atty., were on brief for
respondent, appellee.
Before CAMPBELL, Chief Judge, TIMBERS,* Senior Circuit Judge, and
TORRUELLA, Circuit Judge.
TIMBERS, Circuit Judge:

John James Ouellette ("petitioner") appeals from an order entered February 11,
1988 in the District of Maine, Gene Carter, District Judge, denying without a
hearing petitioner's motion pursuant to 28 U.S.C. Sec. 2255 (1982) to vacate his
conviction and sentence on the ground that his guilty plea was involuntary due
to ineffective assistance of counsel. Petitioner asserts that counsel had
misrepresented to him that, by pleading guilty to a drug offense, he would not
be required to "cooperate" with the government thereafter.

The district court found that counsel was not ineffective and did not cause any
"prejudice" to petitioner. On appeal, petitioner claims as error the district
court's findings as to effectiveness of counsel, prejudicial effect, and
voluntariness of the plea. Petitioner also claims as error the denial of an

evidentiary hearing on his motion.

3

For the reasons set forth below, we affirm.

I.
4

We shall summarize only those facts believed necessary to an understanding of

the issues raised on appeal.

Petitioner was indicted in the District of Maine at Portland on January 25, 1985
for possession with intent to distribute a substance containing cocaine, a
Schedule II substance, in violation of 21 U.S.C. Sec. 841(a)(1) (1982). From
January through June 1985, discussions between the government, petitioner and
his court-appointed attorney, Thomas R. Downing ("Downing") were
conducted regarding the government's desire for petitioner to cooperate in ongoing drug investigations. The government had indicated that cooperation
would be required in return for any plea agreement. Petitioner steadfastly
declined to agree to cooperate, fearing for both his own safety and that of his
family and relatives due to threats made against himself and against his
relatives.

On June 24, 1985, petitioner received a letter from Downing which is the basis
for the instant motion. In part, the letter read:

7 have discussed with the U.S. Attorney, again, your entry of a plea of guilty and I
"I
would certainly recommend that you do that. The reason I suggest that is that they
are no longer requiring that you cooperate with them. We would simply make the
plea to the Court and have the judge sentence you based on a pre-sentence report
which would be conducted."
8

Petitioner contends that primarily on the basis of this letter he chose to appear
before the district court on July 10, 1985 to change his plea to guilty. At this
Rule 11 hearing, the district judge extensively questioned petitioner and his
counsel, Downing, regarding, among other things, the voluntariness of the plea,
whether there were any plea agreements, whether petitioner was satisfied with
his counsel and the factual basis for the plea. In response to a question about
plea agreements, petitioner answered that there were none, a fact thereafter
confirmed by his counsel. Having been satisfied that petitioner understood his
rights and the consequences of pleading guilty, the court accepted the plea.

At sentencing on July 30, 1985, statements by Downing, petitioner, petitioner's

mother, assistant U.S. Attorney Joseph H. Groff, III ("Groff"), and a presentence investigation ("PSI") report were introduced. During the hearing, the
judge commented on the fact that petitioner had not given "any significant level
of cooperation to the government" and asked Downing "[I]s there any reason
why [petitioner] has elected not to cooperate with the government after pleading
guilty?", to which Downing replied:
10don't think that the option to cooperate after pleading guilty was something that
"I
was presented to us as an option. There had been discussions prior to the plea early
on in the case whether he would be willing to cooperate, and frankly because of his
concerns for his personal safety [he] was not willing to do so."
11

In response to further questioning by the court regarding cooperation with the

government, Downing again indicated that he had not had any discussion with
the government regarding cooperation after the plea. At no time during this
hearing did petitioner express to the court his belief that he had been misled as
to the extent of cooperation with the government required of him.

12

At the hearing's conclusion, petitioner was sentenced to 12 years imprisonment,

to be followed by a 3 year mandatory special parole term. The judge indicated
that petitioner's failure to cooperate with the government was one of the factors
he had taken into account in determining the sentence to be imposed.
Immediately after sentencing, Groff indicated to Downing that petitioner would
be subpoenaed the next day to testify before a grand jury.

13

On July 31, 1985, petitioner received a subpoena to testify before a grand jury,
but he refused to testify even after being granted immunity. Petitioner was
found in civil contempt and ordered imprisoned until he testified or for the life
of the grand jury, but in any event for a period not to exceed eighteen months.
On December 5, 1985, a motion to reduce sentence pursuant to Fed.R.Crim.P.
35 was denied by the district court. This was affirmed by this Court in a per
curiam opinion. United States v. Ouellette, No. 85-2028, slip op. (1st Cir. April
30, 1986) [795 F.2d 75 (table)]. On March 27, 1987, petitioner completed his
term of incarceration for civil contempt and began serving his 12 year sentence
for the cocaine offense.

14

In December 1987, almost two and one-half years after his sentencing,
petitioner filed his Sec. 2255 motion challenging the voluntariness of his guilty
plea on the ground that Downing had rendered ineffective assistance of
counsel. No hearing was held. The only evidence offered by petitioner was the
motion itself and a copy of the June 24, 1985 letter to him from Downing.

15

16

In a Memorandum and Order dated February 11, 1988, the district court denied
the motion, finding that, although the motion was facially valid, there was an
insufficient showing under the law of Hill v. Lockhart, 474 U.S. 52 (1985),
either that petitioner had received ineffective assistance of counsel or that he
had been prejudiced. From the judgment entered on that order, petitioner, who
has been incarcerated at Danbury, Connecticut, has taken the instant appeal.
For the reasons which follow, we affirm.

II.
17

The basis for petitioner's motion is his contention that his attorney
misrepresented a determinative aspect of an alleged plea agreement with the
government--specifically that the government would no longer require
petitioner to cooperate in any way in its investigations. Petitioner contends that
he understood the statement in Downing's June 1985 letter to him that the
government is "no longer requiring that you cooperate with them" to mean that
he would not be required to testify at any time before or after he pled guilty.
Petitioner asserts that, in addition to the letter, Downing also orally represented
to him that such was the case.

18

Petitioner states that prior to receiving Downing's letter he had declined to

plead guilty while the government was requiring his cooperation because he
feared for the safety of himself and others. Once he understood that cooperation
with the government was not required, he then chose to plead guilty. As stated
above, however, immediately after sentencing he was subpoenaed before a
grand jury and thereafter was imprisoned for civil contempt for his refusal to
testify. Thus, petitioner concludes, because of Downing's "misrepresentation"
to him that his cooperation with the government was not required, when in fact
it was, he was prevented by ineffective assistance of counsel from making a
"voluntary and informed decision to plead guilty".1

19

As a remedy, petitioner proposes either that he be allowed to withdraw his

guilty plea or that he be given "credit" for the time he was imprisoned on the
civil contempt charge. Alternatively, he seeks a remand to the district court for
an evidentiary hearing on his Sec. 2255 motion.

20

One of the important purposes of the searching inquiry required by

Fed.R.Crim.P. 11 before a guilty plea can be accepted is the finality of
litigation. Lockhart, supra, 474 U.S. at 58; United States v. Timmreck, 441 U.S.
780, 784 (1979). It is partly for this reason that petitioner must present valid

reasons why he should be relieved of his statements at a Rule 11 hearing in

order to "overcome the presumption of regularity which the record ... imports".
Walker v. Johnston, 312 U.S. 275, 286 (1941). See also United States v. Butt,
731 F.2d 75, 80 (1st Cir.1984); Crawford v. United States, 519 F.2d 347, 350
(4th Cir.1975), cert. denied, 423 U.S. 1057 (1976), overruled on other grounds,
United States v. Whitley, 759 F.2d 327 (4th Cir.), cert. denied, 474 U.S. 873
(1985).
21

Here, petitioner fails to provide this Court with valid reasons why the extensive
record in this case--including not only the Rule 11 hearing but also the
sentencing hearing, the PSI report, the immunity and civil contempt hearings
and the Rule 35 proceeding--is to be disregarded. There is virtually no support
for petitioner's claims that there was a plea agreement. Furthermore, even if
Downing did lead petitioner mistakenly to believe there was an agreement or
understanding with the government, sufficient clarification was provided
petitioner to enable him to express to the district court in a timely manner his
misunderstanding in order to rectify the situation. Petitioner was provided with
more than a dozen opportunities to bring such misunderstanding or
misrepresentation to the attention of the district court, yet he failed to assert the
claim until the filing of his Sec. 2255 motion almost two and one-half years
after sentencing. This failure to act draws into serious question the validity of
petitioner's claims.

22

At the change of plea hearing conducted pursuant to Fed.R.Crim.P. 11,

petitioner and Downing both indicated to the court that the guilty plea was
being made for no reason other than petitioner's actual guilt. The court
specifically asked whether anyone had threatened petitioner or attempted to
induce him to enter the plea, to which petitioner replied "no". The court also
asked whether there was any plea agreement in the case, to which both the
government and defense counsel responded that there was no such agreement.
Twice more, petitioner was asked by the court whether anyone had made
promises to him or had induced him to plead guilty and twice again petitioner
replied "no". Based on the record of the Rule 11 hearing it is clear that there
was no agreement.

23

It also is clear that, if there had been any such agreement, petitioner had ample
opportunity to so inform the court. Before the court began questioning
petitioner, it informed him that he would be expected to give truthful responses
and that, if he did not understand anything during the proceedings, he should
interrupt. Petitioner in fact did interrupt the proceedings at one point to clarify a
point. It is apparent that, while petitioner was accorded, and in fact exercised,
his right to clarify matters, he never indicated to the court that, contrary to his

responses to the court's questions, there was an agreement with the government.
24

Furthermore, any claim that petitioner made false statements at the Rule 11
hearing or that his attorney instructed him how to answer the court's questions,
see Butt, supra, 731 F.2d at 80, is strongly refuted by the events at subsequent
proceedings and by petitioner's acknowledgment at the Rule 11 hearing that he
was "required to answer truthfully [the district court's] questions". Also,
contrary to what petitioner now asserts, the Rule 11 proceeding was a searching
inquiry and not a boilerplate hearing. In short, nothing at the Rule 11 hearing
supports petitioner's position; indeed, the record contradicts it.

25

Petitioner cites United States v. Giardino, 797 F.2d 30 (1st Cir.1986), for the
proposition that his statements at the Rule 11 hearing cannot be considered as
contradicting his current position because it was not until after the hearing that
he became aware of Downing's "misrepresentation". While petitioner's state of
mind at the Rule 11 hearing may have been as he asserts, events subsequent to
the time he claims he was first made aware of his true situation continue to
contradict his current position.

26

During sentencing, as stated above, the court asked Downing why petitioner
had elected not to cooperate with the government after pleading guilty.
Downing replied that such option to cooperate after the guilty plea had not been
presented to him or his client. Downing, however, also observed, "Having pled
guilty I'm sure that [petitioner] will be subpoenaed in front of the grand jury
and will either be forced to testify or not depending on how he views the
situation at that point".

27

Shortly thereafter the government made it clear to petitioner and Downing that
it would be requiring petitioner to testify before a grand jury, adding that "[t]his
has all been explained to [petitioner] and his counsel". No objection or
comment was made by either petitioner or Downing in response to this
statement. Nor was there any response to the government's notice to Downing
on the record immediately following sentencing that petitioner would be
subpoenaed the next day to testify before a grand jury. Such failure on the part
of petitioner to voice to the court any concern about the course of events is
directly at odds with his present contention that the record does not contradict
his position.

28

Clearly, the events at sentencing left no reasonable basis for petitioner to doubt,
if indeed he ever doubted, that there was no agreement with the government
regarding cooperation. The PSI report, submitted to the district judge at

sentencing, also indicates that there was no plea agreement with the
government. Furthermore, it appears that during the subsequent immunity, civil
contempt, and Rule 35 proceedings, petitioner never once indicated to the court
that his plea had been induced by his attorney's misrepresentation as to a plea
agreement with the government.
29

Contrary to what petitioner suggests in his brief in our Court, if he had refused
to testify before the grand jury on the basis of what he genuinely believed to be
"his 'right' not to cooperate", in all likelihood he would have said so at the
immunity and civil contempt hearings. Instead, as he indicated to the district
court and as he admits in his brief, his refusal to testify was based on his deep
concern for the safety of himself and his family. Petitioner chose to serve 16
months in prison for contempt rather than invoke this purported agreement.
Furthermore, it appears that during the Rule 35 proceedings there also was no
mention by petitioner of his reliance on any agreement or "right" not to
cooperate.

30

In short, petitioner has failed to come forward with any justification for
overcoming the validity of his statements and conduct during the various
proceedings, including the Rule 11 hearing, all of which point to the absence of
any plea agreement and, more importantly, to the absence of any reasonable
belief on the part of petitioner that there was any such agreement. Butt, supra,
731 F.2d at 80.

III.
31

Assuming arguendo that petitioner were able to demonstrate persuasive reasons

to overcome the validity of his statements at the Rule 11 hearing, petitioner
nevertheless has failed to demonstrate that he received ineffective assistance of
counsel.

32

In Lockhart, the Supreme Court established a two-part test for determining

whether assistance of counsel has been so ineffective as to justify the
withdrawal of a guilty plea. First, petitioner must show " 'that counsel's
representation fell below an objective standard of reasonableness' ". Lockhart,
supra, 474 U.S. at 57 (quoting Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). Second, petitioner must demonstrate "prejudice", i.e., "a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial". Lockhart, supra, 474 U.S. at 59; see also
Giardino, supra, 797 F.2d at 31-32; Porcaro v. United States, 784 F.2d 38, 40
(1st Cir.), cert. denied, 479 U.S. 916 (1986).

33

Downing's conduct did not fall below an objective standard of reasonableness.

On the whole, his representation was well within "the wide range of reasonable
professional assistance". Strickland, supra, 466 U.S. at 689. At the Rule 11
hearing Downing was well prepared and vigorously asserted petitioner's
interests. Indeed, petitioner himself stated to the court that he was fully satisfied
with counsel. United States v. Kobrosky, 711 F.2d 449, 452 (1st Cir.1983). At
sentencing, Downing also vigorously asserted petitioner's interests. A review of
the transcripts of both proceedings clearly indicates that counsel had an intimate
familiarity with petitioner's case and provided more than adequate
representation.

34

The only arguably reasonable basis for petitioner's claim of ineffective

assistance of counsel, therefore, is Downing's June 24, 1985 letter to him and
Downing's alleged oral representations regarding cooperation with the
government. On the whole, the letter constituted sound legal advice. It apprised
petitioner of his various options and their likely consequences. It offered a
reasonable recommendation for the most favorable course to pursue.

35

As for counsel's use of the word "cooperate", when read in the context of what
occurred during the various proceedings in this case, it becomes clear that that
meant voluntary cooperation before the plea and did not include compelled
testimony following sentencing. As stated above, if petitioner at first was
confused about this, sufficient clarification was provided at the very latest
during sentencing. The fact that petitioner failed to question or object to the
prospect of being compelled to testify on the ground that he had been misled by
his attorney until the filing of his Sec. 2255 motion two and one-half years after
sentencing, despite numerous earlier opportunities to do so, indicates the
spurious nature of his claim.

36

Our review of the finding by the district court as to the adequacy of counsel's
representation is limited to the question whether that finding was clearly
erroneous. McCarthy v. United States, 764 F.2d 28, 30 (1st Cir.1985) (quoting
United States v. DiCarlo, 575 F.2d 952, 954-55 (1st Cir.), cert. denied, 439
U.S. 834 (1978)). In finding counsel to be adequate, the district court held that
Downing's use of the term "cooperate" was at most "confusing and deserving of
later clarification", and that such clarification later was provided for petitioner.
Our review of the record in this case, including the transcripts of the Rule 11
and sentencing hearings, satisfies us that the district court's finding was not
"clearly erroneous".2

IV.

37

We turn finally to the issue of whether the district court should have conducted
an evidentiary hearing on petitioner's motion. Section 2255 provides that a
petitioner is entitled to an evidentiary hearing on his motion unless "the motion
and the files and records of the case conclusively show that the [petitioner] is
entitled to no relief...." 28 U.S.C. Sec. 2255 (1982). Machibroda v. United
States, 368 U.S. 487, 494 (1962); Butt, supra, 731 F.2d at 77. We previously
have held that no hearing is required where the district judge is thoroughly
familiar with the case as, for example, when he presides at both a change of
plea hearing and sentencing. McCarthy, supra, 764 F.2d at 31-32; DiCarlo,
supra, 575 F.2d at 954; see also United States v. Acevedo-Ramos, 619 F.Supp.
570, 578 (D.P.R.1985), aff'd, 810 F.2d 308 (1st Cir.1987).

38

While the district court found as a preliminary matter that petitioner's claims
were facially valid, it nonetheless rejected the claims without a hearing, finding
them to be conclusively contradicted by the record. Butt, supra, 731 F.2d at 77;
Rule 4(b), Rules Governing Section 2255 Proceedings for the United States
District Courts. In this case, disposition without a hearing was appropriate. The
particular district judge involved was thoroughly familiar with the record,
having presided over the Rule 11, immunity and civil contempt proceedings,
having imposed sentence, and having ruled on the Rule 35 motion, as well as
on the instant Sec. 2255 motion. Petitioner advances no compelling reason for
requiring an evidentiary hearing where a district judge had this extent of
involvement in a case and where the record so conclusively contradicts the
allegations. It is apparent that an evidentiary hearing would have added little or
nothing to the present extensive record. We conclude that disposition of this
motion without a hearing was not error.3

V.
To summarize:
39

We hold that petitioner's guilty plea was not rendered involuntary by reason of
the asserted ineffective assistance of counsel and that the district court did not
err in ruling on the motion without an evidentiary hearing.

40

AFFIRMED.

Of the Second Circuit, sitting by designation

Petitioner further claims ineffective assistance of counsel on the ground that

Downing misled him into believing that petitioner's refusal to cooperate with
the government from January to June 1985 would not be taken into account by
the district judge at sentencing. In fact, at sentencing the district judge
specifically stated that petitioner's lack of cooperation was a substantial factor
in his decision to impose a harsh sentence
This aspect of petitioner's ineffective assistance of counsel claim, however,
must be rejected outright. As the district court correctly observed, the latter part
of Downing's June 1985 letter to petitioner clearly warned petitioner that he
would have to explain to the judge his failure to cooperate with the government.
The pertinent part of the letter reads as follows:
"I want you to think very carefully about changing your plea in this case and
having the judge sentence you based on your representations to the Court about
why you can't cooperate because you, obviously, fear for your personal safety
but that you are prepared to take your lumps and get your life back in order."
This claim by petitioner clearly is without merit because it is directly refuted by
the very document petitioner relies on in making his primary claim of
ineffective assistance of counsel.
2

Since we agree with the district court's finding of adequacy of counsel, we do

not reach the question of prejudice. We note, however, our serious reservations
about petitioner's claim that, but for counsel's "misrepresentation", he would
not have pled guilty but instead would have proceeded to trial. Our reservations
stem from the substantial case the government had against petitioner as
evidenced by Groff's statements at sentencing, and in view of the following
statements by Downing in his June 1985 letter to petitioner:
"I see absolutely no chance of you winning at trial. The case is absolutely
straightforward and once the evidence of the cocaine is in the jury is going to
convict you in about thirty seconds flat.
***
I firmly believe that if you admit your guilt ... and tell the judge that you are
sorry for what you did, that he would give you a much more lenient sentence
than if this case were to go to trial and you would appear at sentencing after
having been found guilty by a jury."

Since we affirm the district court's denial of the Sec. 2255 motion, the viability
of petitioner's proposed remedies, other than a remand for an evidentiary
hearing, need not be addressed. Furthermore, we need not address the
government's argument that petitioner has not demonstrated that it would be fair

and just to withdraw his plea. Kobrosky, supra, 711 F.2d at 454. We also find
the government's argument that the instant motion has been precluded by the
prior Rule 35 proceeding to be without merit because, as stated above, it
appears that the issue of ineffective assistance of counsel was raised for the first
time in the instant Sec. 2255 proceeding