USCA1 Opinion

January 31, 1995

[NOT FOR PUBLICATION]
UNITED STATES OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1605
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CLIFFORD A. DOYLE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
____________________
Marcia G. Shein on brief for appellant.
_______________
Jay P. MCloskey, United States Attorney,

F.

Mark

Teris

_________________
________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________
from the dismissal
set

Petitioner Clifford A. Doyle

without hearing of his motion

aside, or correct his

Specifically,
dismissing
promise

to

he argues

his

that

claims

recommend

sentence under 28

that
a

the district
the

six-year

government
sentence

appeals

to vacate,

U.S.C.

2255.

court erred

in

breached

its

and

that

his

attorney provided ineffective assistance of counsel.

Breach of Plea Agreement
________________________
In

rejecting

breached the

appellant's

claim

that

plea agreement, the district

the

government

court relied upon

the

written plea agreement and the transcript of the Rule 11

hearing

that

it conducted.

factual determination
the

plea agreement.

determination,

trial judge

makes

of whether there has been

[This court]

therefore,

Panzardi-Alvarez
________________

"The

will

unless

a breach of

not reverse

clearly

v. United States, 879

______________

the

this

erroneous."

F.2d 975,

987 (1st

Cir. 1989), cert. denied, 493 U.S. 1082 (1990).

____ ______
In

dismissing a

district
'as

court "must

2255

motion without a

take petitioner's

hearing, the

factual allegations

true, except to the extent that they are contradicted by

the record
that they

or are inherently
are merely

incredible, and to

conclusions rather than

the extent

statements of

fact.'" Otero-Rivera v. United States, 494 F.2d 900, 902 (1st

____________
_____________
Cir.

1974);

Hernandez
_________

v.

(citations

omitted);

United States,
_____________

904

-2-

see
___

also,
____

F.2d 758,

762

Hernandez__________
(1st Cir.

1990).

In

government

this

case,

promised

to

contradicted
contains
parties

by

the

no such

appellant's
recommend

record.

The

promise and, in

specifically

reserve the

binding recommendation of any

allegation

that

six-year sentence
plea

agreement

fact, provides
right

to

the
is

itself

that "all

make any

non-

lawful sentence to the court."

Paragraph nine of the plea agreement provides as follows:

The

defendant understands

further

or

implied,

other

that there

agreements, either

are no

express

other

than

those

contained

in

11

hearing,

the

district

court

or
this

Agreement.
At

the

Rule

directly

questioned appellant as follows:

Q.

Has anyone made a promise

to you in an effort

to

induce you to plead guilty

aside from the plea

agreement I have discussed with you?

A.

No sir.

"[T]he presumption of truthfulness of [defendant's] Rule

11 statements will not be overcome
the

2255 motion . . . include credible, valid reasons why a

departure from those earlier

justified."

1992)

existence

contradictory statements is now

United States v. Butt, 731 F.2d 75, 80 (1st Cir.

_____________
____

1984); cf. United States v.

___ ______________
Cir.

unless the allegations in

("We
of

have

promises

Doyle, 981 F.2d

_____

repeatedly
not

refused

expressly

591, 594
to

infer

articulated

in,

(1st
the
or

-33

necessarily

implied by, plea agreements, .

2255 motion appellant provides

in the

Plea Agreement and

. .").

In his

no explanation for his denial

at his

Rule 11 hearing

that any

promises had been made other than those contained in the Plea
Agreement
presumption

itself.
of

Therefore,

he

truthfulness of

Under those circumstances,

failed

his

Rule

to overcome

the

11 statements.

the district court did not err in

summarily denying appellant's breach-of-plea claim. See Butt,

___ ____
731 F.2d at 80
where

(affirming summary denial of

2255 petition

appellant "has given no valid reasons why he should be

relieved of his statements

in the 'Plea Petition' or

at the

change of plea proceeding").

Ineffective Assistance of Counsel
_________________________________
On appeal, appellant alleges for the first time that his
attorney provided ineffective
that the government

assistance in

misrepresenting

would recommend a six-year sentence.

He

further alleges
decided to

that, based upon

plead guilty

that misrepresentation, he

"with the understanding

and belief

that he would not receive a sentence in excess of six years."

In
the

his
part

2255 petition, appellant alleged numerous errors on

of his

attorney.

sentence, however,
to

With

respect to

he faulted his attorney

the expected

only for failing

insist that the government put its promise to recommend a

six-year sentence in writing, and for failing to

object when

-44

the

government

breached

its

promise

by

recommending

fifteen-year sentence.
The

district

court

rejected

assistance of counsel claim in his

for his failure to allege prejudice.
noted that "[p]rejudice might
have pleaded

not

guilty,

appellant's

ineffective

2255 motion, essentially

Specifically, the court

exist if Doyle would otherwise

Hill v.
____

Lockhart,
________

474

U.S.

52

(1985),
not

or if an illegal

exist

simply

in Doyle's

obtained a better plea

alleges

sentence.

"[O]ur general

rule

is not

should have

appeal, appellant

pleaded not guilty,

but for his

receive a six-year
to consider

on appeal. . . . We

the new ground

of justice
[is] 'so

insure appellant's success.'"

at 763.

Now, on

he

but it does

claims

therefore are

to determining whether or not this is a case 'where

gross miscarriage

where]

that

advice that he would

raised for the first time

belief

bargain."

that he would have

counsel's erroneous

confined

sentence was imposed,

Our review of the

would occur'
compelling as

. . .

. [and

virtually to

Hernandez-Hernandez, 904
___________________

F.2d

record does not reveal that this

is such a case.
To succeed on an ineffective assistance of counsel claim
in the context

of a guilty plea, a defendant

is required to

make two showings: first, "that his counsel's challenged acts

or omissions

made counsel's overall

an objective standard

performance fall 'below

of reasonableness,'" United States v.

______________

-55

Giardino,
________

797

omitted),

and second, "'a

for counsel's

F.2d

30,

31

(1st

Cir.

1986)

reasonable probability

errors, he would

not have pleaded

(citations
that, but
guilty and

would have insisted on going to trial.'" Id.

___
In Butt, supra, we affirmed the district court's summary
____ _____
denial of a

2255 petition

There, the petitioner had

his attorney misled
agreed

on facts similar
claimed in his

him by

declarations contained in the

transcript of
claim

that he

Based upon

relied on

motion that

the judge

had

the statements and

hearing,

that

we rejected

his

misrepresentation.

We

reasoned as follows:
Butt has given no valid reasons why he should be
relieved of his statements in the "Plea Petition"
or at the change of plea proceeding. Even if the
appellant had asserted that, upon the advice of
counsel, he had made false statements at the
change-of-plea proceedings,
the presumption of
truthfulness of the Rule 11 statements will not be
overcome unless the allegations in the
2255
motion
are sufficient
to state a
claim of
ineffective assistance of counsel
and include
credible, valid reasons why a departure from those
earlier contradictory statements is now justified.
Since Butt fails to reasonably substantiate his
ineffective assistance of counsel claim with any
material issues of fact, he has not "overcome the
presumption of regularity which the record . . .
imports."
Butt, 731 F.2d at 80.

case.

written plea agreement and the

the change-of-plea
had

2255

telling him that

to the plea bargain.

to this

____
In this
overcome

case,

the

as

in

Butt, appellant
____

presumption of

has

truthfulness

of

failed

to

his Rule

11

-66

statements.

As

this

hearings

have been

claimed

that

and

granted to

their

misrepresentations
specific

only when

at

at 762.

are neither specific

contradictory

in

misrepresentation.
attorney
sentence.

advised

its

Elsewhere

the

induced

80, n.5;

by

who have

by

allegations

attorney

were

some

highly

independent

see also
___ ____

Hernandez__________

Appellant's allegations in this

description

of

His
his

brief is
attorney's

point, appellant alleges that his

that
in

"[e]videntiary

nor corroborated.

At one
him

was

accompanied

731 F.2d

Hernandez, 904 F.2d

_________

in Butt,
____

2255 appellants

plea

usually

corroboration."

case

court noted

he

would

the brief,

receive
however,

six-year

he seems

to

allege

that his

government
year

was that

the

was bound by its oral promise to recommend a six-

sentence.

specific

attorney's misrepresentation

to

These
require

allegations
an

are

evidentiary

not

sufficiently

hearing.

Compare
_______

Hernandez-Hernandez, 904 F.2d at 762 (allegation that counsel

___________________
had told defendant he would receive a ten-year sentence if he
pleaded guilty was sufficiently specific in that the date and
time of the misrepresentation and the specific sentence to be
served in exchange for the guilty plea were set forth).
Neither allegation is corroborated.

Appellant refers in

his brief to affidavits by Daniel G. Lilly and Mary A. Davis,

the attorneys
hearing.

who represented

Copies

of those

appellant at his

affidavits, however,

guilty plea
were never

-77

submitted to the district court.

Only recently, on December

13, 1994, appellant's attorney moved to supplement the record

excerpts

to

include "three

[appellant's]
induce

original

him to

plead

affidavits .

complaint

related to

concerning

guilty." As

the

promises

affidavits were

to
not

before the district court when it considered appellant's Rule

2255 motion, they cannot be considered on appeal.
States v.
______
1989).

Pacheco-Ortiz,
_____________

The government's

889 F.2d

301, 307

See United
___ ______

n.3 (1st

motion to strike the references

the affidavits from appellant's brief is allowed.

Cir.
to

The motion

to supplement the record is denied.

Moreover, references to the affidavits in the brief
purportedly
attorney

advised

recommend
the

support only

plea,

not

the

appellant's

government's

the allegation

it

court's clear
was

recommendation,
from

that

that

promise

that

his

him he would receive a six-year sentence.

sentencing
that

allegation

to

a six-year sentence did not have to be included in

written

advised

him

the

his

not

statement at

bound

to

appellant cannot

attorney's

alleged

follow

the Rule
the

attorney
Given the
11 hearing

government's

reasonably have
misrepresentation

inferred
that

the

government would recommend a six-year sentence, that he would

necessarily receive a six-year sentence.
We

conclude

miscarriage

that this

is not

of justice" will result

-88

case where

a "gross

or where the new ground

for relief

insures appellant's success.

appellant's

ineffective assistance of

Therefore, we deny
counsel claim

on the

ground that it was not presented to the district court.

For
dismissal

the

foregoing

of

appellant's

reasons,
2255

affirmed pursuant to Loc. R. 27.1.

The

district

petition

is

court's
summarily

-99