UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-6284

MARKEL ANTOINE WHISONANT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-97, CA-97-971-5-F)

Argued: June 8, 2000

Decided: August 22, 2000

Before WILKINSON, Chief Judge, and WIDENER
and TRAXLER, Circuit Judges.

_________________________________________________________________

Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Karin Scherner-Kim, Student Counsel, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Fenita Morris Shepard, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Steven H. Goldblatt, Director, Adam N. Steinman, Supervis-
ing Attorney, Joy M. Hodge, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Markel Antoine Whisonant entered a guilty plea to con-
spiracy to possess with intent to distribute and to distribute cocaine
base. See 21 U.S.C.A. § 846 (West 1999). He was sentenced to a 262-
month term of imprisonment. Whisonant then filed this petition for
relief pursuant to 28 U.S.C.A. § 2255 (West Supp. 2000). The district
court determined that Whisonant, under the terms of the plea agree-
ment, had waived his claim for ineffective assistance of counsel based
on his attorney's failure to move for the suppression of certain evi-
dence. Concluding the purported waiver was too ambiguous to be
valid, we grant Whisonant's application for a certificate of appeala-
bility on that issue, see 28 U.S.C.A. § 2253(c) (West Supp. 2000),
vacate that portion of the district court's order, and remand for con-
sideration of the merits. However, because Whisonant has failed to
make a substantial showing of the denial of a constitutional right as
to his remaining claims, we deny his application for a certificate of
appealability and dismiss his petition with respect to those claims.

I.

At Whisonant's trial for conspiracy to possess with intent to dis-
tribute and to distribute cocaine base ("crack"), the Government
called as a witness Yvette Gatling, Whisonant's former girlfriend. In
1994, approximately two years prior to Whisonant's arrest, Gatling
had begun cooperating with federal investigators. She was granted

                    2
immunity from prosecution for her involvement in Whisonant's drug
business in exchange for her agreement to assist authorities in the
investigation of the drug conspiracy in which Whisonant was
involved. Among other things, Gatling testified before the grand jury
concerning her knowledge of the conspiracy, provided to the Govern-
ment various items that were used in the transportation and distribu-
tion of the drugs, and eventually testified at Whisonant's trial.

At trial, Gatling described for the jury in detail various aspects of
Whisonant's drug activity. According to Gatling, she eventually broke
off her romantic liaison with Whisonant, but Whisonant nevertheless
phoned her from jail several times following his subsequent arrest. At
the time of these telephone conversations, Whisonant had been
indicted and had retained legal counsel. Gatling testified that during
these conversations, Whisonant told her that "`[i]f you talk to any-
body, you have to say you have never seen me with cocaine.'" J.A.
42. Gatling recorded some of these telephone conversations, and the
tape recording was admitted into evidence and played for the jury.
According to Gatling, the recorded telephone call that was played for
the jury had been initiated by Whisonant. The record does not include
a transcription of the tape recording, but the district court, in denying
Whisonant's § 2255 petition, "clearly recall[ed] hearing the tape at
trial and . . . listened to it again for purposes of ruling on the [§ 2255
petition]." J.A. 180. The district court concluded that "Gatling acted
as more than a mere listening post" by "elicit[ing] incriminating state-
ments from the defendant concerning the events leading up to his
indictment." J.A. 181. The Government does not dispute that Gatling
assumed an active role in extracting incriminating statements from
Whisonant during the taped telephone conversation.

The tape was admitted into evidence without objection from Whi-
sonant's attorney. Immediately following the playing of the tape for
the jury, Whisonant informed the court that he wished to change his
plea to guilty. Whisonant then entered into a plea agreement with the
Government that provided, in part, as follows:

          2. The Defendant agrees:

          ...

                     3
          b. To waive knowingly and expressly the right to appeal
          whatever sentence is imposed on any ground, including any
          appeal pursuant to 18 U.S.C. § 3742, and further to waive
          any right to contest the conviction or the sentence in any
          post-conviction proceeding, including any proceeding under
          28 U.S.C. § 2255, excepting the Defendant's right to appeal
          based upon grounds of ineffective assistance of counsel and
          prosecutorial misconduct not known to the Defendant at the
          time of the Defendant's guilty plea.

J.A. 47-48.

Additionally, the plea agreement addressed Whisonant's sentence:

          5. The parties agree to the following positions as to sen-
          tencing factors, which are not binding on the Court; pro-
          vided that if Defendant's conduct prior to sentencing
          changes the circumstances with respect to any such factors,
          the Government is no longer bound to its position as to
          those factors:

           a. A downward adjustment of 3 levels for acceptance of
          responsibility is warranted under U.S.S.G. § 3E1.1.

J.A. 52. The Government also agreed "[t]hat it will make known to
the Court at sentencing the full extent of the Defendant's coopera-
tion." J.A. 51.

The sentencing court was provided with a presentence report (PSR)
that recommended only a two-level downward adjustment to Whiso-
nant's base offense level for acceptance of responsibility. See United
States Sentencing Guidelines (U.S.S.G.) § 3E1.1 (1995). The PSR
also recommended that the sentencing court impose a two-level
enhancement for Whisonant's possession of a firearm during the
course of and in relation to his drug-related activity. See U.S.S.G.
§ 2D1.1(b)(1).

Whisonant objected to the recommended two-level firearm
enhancement, and testified at his sentencing hearing that he never car-

                    4
ried or used firearms during the commission of the charged offense.
The sentencing court, however, adopted the PSR's recommendation
that the enhancement be imposed. The court also adopted the PSR's
recommendation that Whisonant be awarded a two-level reduction for
acceptance of responsibility, and Whisonant raised no objection to the
fact that he was receiving only a two-level reduction for acceptance
of responsibility instead of a three-level reduction as contemplated in
the plea agreement. Finally, the sentencing court granted Whisonant's
motion for a downward departure on the basis that his criminal his-
tory category overrepresented the seriousness of his criminal history.
The court then sentenced Whisonant at the bottom of the resulting
sentencing range.

Whisonant did not appeal his conviction or sentence. Instead, Whi-
sonant filed this action pursuant to § 2255. In it, he raised three
claims: (1) that he was provided ineffective assistance of counsel
because his attorney failed to move to suppress the taped telephone
conversation between him and Gatling, and that he would not have
changed his plea had the tape been excluded from evidence; (2) that
the Government breached the plea agreement by not recommending
that the sentencing court reduce his offense level by three levels,
instead of two, for acceptance of responsibility (thus depriving Whi-
sonant of due process); and (3) that his counsel was ineffective for not
objecting to this alleged breach and not pursuing a three-level down-
ward adjustment for acceptance of responsibility himself.

The district court rejected these claims. With respect to the claim
that counsel should have moved to suppress the tape, the district court
"conclude[d] as a matter of law that [ ] Gatling acted as a Government
agent while engaging in, tape recording and reporting . . . the tele-
phone calls," J.A. 181, and implied that, as a result, the tape would
have been suppressed under Massiah v. United States, 

(1964). Ultimately, however, the district court disposed of this claim
on the grounds that, under the terms of the plea agreement, Whisonant
had waived the claim that his trial counsel provided ineffective assis-
tance by failing to move for the suppression of the tape under Mas-
siah. Thus, the district court did not rule on the merits of the
ineffective assistance claim. With respect to the claims arising from
the Government's alleged breach of the plea agreement, the district

                    5
court rejected them based on the conclusion that the sentencing court
was not bound by the terms of the plea agreement.

II.

We first address whether Whisonant has waived the right to appeal
the issues he now wishes to present. Whisonant submits that the dis-
trict court mistakenly concluded that he waived his ineffective assis-
tance claim under the terms of the plea agreement because the waiver
provision is ambiguous, being subject to more than one interpretation.
Therefore, Whisonant argues that the plea agreement should be con-
strued against the Government. See United States v. Harvey, 

, 303 (4th Cir. 1986). Whisonant suggests that the written terms
of the plea agreement simply do not make clear whether Whisonant's
ineffective assistance claim was barred by his knowledge of the fac-
tual basis for such a claim, or whether Whisonant was barred only if
he was actually aware of the legal basis for such a claim at the time
he entered into the plea agreement.

The Government concedes that the provision is ambiguous and
agrees with Whisonant that he should be permitted to raise his inef-
fective assistance of counsel claim. We agree also. Because the
waiver provision is indeed ambiguous, we interpret the plea agree-
ment to have preserved Whisonant's ineffective assistance of counsel
claims under § 2255.

III.

Having concluded that Whisonant did not waive his ineffective
assistance claims, we must next determine whether we can resolve
these claims on the merits in the first instance or whether we should
remand them for the district court to do so. With respect to his first
claim--that counsel unreasonably failed to object to the taped tele-
phone conversation--Whisonant contends that, at the very least, he is
entitled to a hearing on his ineffective assistance claim. We agree.

A district court must permit a hearing on a § 2255 claim "[u]nless
the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief." 28 U.S.C.A. § 2255; see Fon-

                    6
taine v. United States, 

, 215 (1973) (remanding § 2255
petition for evidentiary hearing because the record did not permit the
Court to "conclude with the assurance required by the statutory stan-
dard . . . that under no circumstances could the petitioner establish
facts warranting relief under § 2255"). Thus, "[w]hen a colorable
Sixth Amendment claim is presented, and where material facts are in
dispute involving inconsistencies beyond the record, a hearing is nec-
essary." United States v. Magini, 

, 264 (4th Cir. 1992).

By contrast, the Government contends that the record clearly dem-
onstrates that Whisonant's claim lacks merit. Although the district
court did not reach the merits of Whisonant's ineffective assistance
of counsel claim, and despite the district court's observation that
"[t]he Government has not suggested any grounds, and the court can
perceive of none, upon which a motion to suppress the tape recording
would have been denied," J.A. 181, the Government urges us to
affirm the entry of judgment against Whisonant on his § 2255 peti-
tion. Indeed, "we may affirm the district court's judgment for any rea-
son supported by the record, even if it is not the basis that the district
court used." United States v. Swann, 

, 277 (4th Cir.
1998).

Thus, the question for us is whether the record conclusively estab-
lishes that Whisonant is not entitled to relief. To prevail on a claim
for ineffective assistance of counsel, Whisonant must establish the
two familiar requirements of Strickland v. Washington, 

(1984). First, Whisonant must show that his counsel's performance
"fell below an objective standard of reasonableness." 

counsel's deficient performance must result in prejudice. See 

that regard, Whisonant's burden is as follows:

          When a defendant challenges a conviction entered after a
          guilty plea, [the] "prejudice" prong of the [Strickland] test
          is slightly modified. Such a defendant "must show that there
          is a reasonable probability that, but for counsel's errors, he
          would not have pleaded guilty and would have insisted on
          going to trial."

Hooper v. Garraghty, 

, 475 (4th Cir. 1988) (quoting Hill
v. Lockhart, 

, 59 (1985)).

                     7
A. Deficient Performance

Under Massiah, "[a] criminal defendant's Sixth Amendment right
to counsel is violated when incriminating statements`deliberately
elicited' by the government, made after indictment and outside the
presence of counsel, are admitted against the defendant at trial."
United States v. Love, 

, 604 (4th Cir. 1998) (quoting

). The Court has explained that this simply
means the Government may not "knowing[ly] exploit[ ] . . . an oppor-
tunity to confront the accused without counsel being present." Maine
v. Moulton, 

, 176 (1985).

In summarizing the factual predicate for Whisonant's contention
that the tape would have been excluded under Massiah, the district
court pointed out that Whisonant had already retained counsel at the
time of his telephone conversation with Gatling; that Gatling had
begun providing information about Whisonant's drug activity approx-
imately two years prior to Whisonant's indictment; and that Gatling
had been granted immunity in exchange for her assistance in investi-
gating Whisonant. The Government, however, contends that a motion
to suppress under Massiah would have failed because Gatling was not
acting as a government agent when she recorded her telephone con-
versations with Whisonant. The Government argues that this is so
because there is nothing in the record suggesting that Gatling was in
contact with government agents between her testimony before the
grand jury and the telephone conversations. The absence of this evi-
dence, the Government contends, shows that Gatling acted entirely of
her own initiative in recording Whisonant's calls and acquiring the
equipment to do so.

On the other hand, there is nothing in the record suggesting that
Gatling broke her contact with the Government or stopped assisting
in the investigation of Whisonant. The record does not contain Gat-
ling's written immunity agreement nor does it contain detailed testi-
mony about the terms of Gatling's grant of immunity. Such immunity
agreements frequently contain as a condition of immunity a require-
ment that the person immunized provide continuing assistance to the
Government. We are not surprised by the lack of information in the
record because it does not appear that Gatling's status as a govern-
ment agent was much in dispute before the district court. Indeed, the

                    8
district court specifically noted that "the Government does not dispute
the factual predicate for the defendant's Massiah claim." J.A. 181.
And, a review of the Government's submissions to the district court
reveals that the Government made only one fleeting, undeveloped ref-
erence to the lack of evidence that Gatling was a government agent.
On this record, we think there is at least a colorable claim that the
tape should have been suppressed under Massiah .

Our analysis does not end simply at whether there was a tenable
Massiah claim. It is not necessarily deficient for trial counsel not to
pursue a viable motion. Indeed, there are good tactical reasons for not
pursuing every potential evidentiary motion with full force. Whiso-
nant's attorney filed an affidavit indicating that he did not pursue a
motion to suppress the tape under Massiah because he believed that
such a motion would be unsuccessful for two reasons. First, counsel
believed that Massiah would not apply because Whisonant had initi-
ated the conversations with Gatling. Second, counsel believed the
content of the conversations--Whisonant was attempting to persuade
Gatling to commit perjury--would also cause such a motion to fail.
Neither of these reasons, in and of themselves, would render a Mas-
siah motion unsuccessful. See 

("[T]he iden-
tity of the party who instigated the meeting at which the Government
obtained incriminating statements was not decisive or even important
to our decision[ ] in Massiah); 

discussed the
creation of false alibis as a defense). In sum, it is not clear to us from
the record why counsel would not have pursued a motion to suppress.

B. Prejudice

Assuming that his attorney performed deficiently in failing to move
to suppress the tape, Whisonant must still demonstrate that there is a
"reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial."

(internal quotation marks omitted).

Whisonant presented an affidavit to the district court in which he
offered his version for why he changed his plea to guilty:

           My decision to enter a plea of guilty under the terms of
          the Government's written plea offer was the direct result of

                     9
          the apparent impact on the jury of their hearing of the tape
          recording made by Yvette Gatling of telephone conversa-
          tions I had with her which was admitted in evidence . . . at
          my trial. I would not have withdrawn my plea of not guilty
          and entered a plea of guilty if that tape recording had been
          suppressed under an objection or motion filed by my trial
          counsel and had not been heard by the jury.

J.A. 170. Indeed, Whisonant announced his decision to change his
plea immediately after Gatling concluded her testimony.

Whisonant's counsel, however, indicated in his affidavit that the
apparent effect of the tape on the jury was not the only reason that
Whisonant changed his plea. According to counsel, during trial the
Government revealed that one of Whisonant's girlfriends had become
available as a witness for the prosecution. Because she held extremely
incriminating information about Whisonant, counsel recounted that
her "availability for testimony, and her presence in Wilmington, was
a large factor in making the decision to plead guilty." J.A. 150. Also,
counsel viewed Gatling's testimony as "directly relevant and reveal-
ing based upon her personal involvement with Mr. Whisonant" and
evaluated her to be "an effective communicator and a believable wit-
ness." J.A. 151. Moreover, counsel believed that the trial had gener-
ally not gone well and that "[i]t was obvious by the end of Ms.
Gatling's direct examination that Mr. Whisonant was going to be con-
victed." J.A. 151. According to Whisonant's attorney, all of these fac-
tors, in addition to the possibility that Whisonant might receive a
reduced sentence for acceptance of responsibility, played a part in
convincing Whisonant to change his plea to guilty.

Because the record on this issue consists essentially of directly con-
tradictory affidavits, we believe that it is appropriate to remand the
matter for the district court to consider it in the first instance after an
evidentiary hearing. Indeed, the record here does not "conclusively
show that the prisoner is entitled to no relief." 28 U.S.C.A. § 2255.
Whether Whisonant can establish prejudice will depend, to a large
extent, on a credibility determination by the district court. At this
juncture, it is not appropriate for us to sort matters out solely on the
basis of the cold record.

                      10
IV.

Whisonant also asserts two claims related to his sentencing. First,
Whisonant contends that his attorney provided ineffective assistance
because he did not object to the recommendation in the PSR that Whi-
sonant receive only a two-level downward adjustment for acceptance
of responsibility pursuant to U.S.S.G. § 3E1.1 instead of the three-
level adjustment contemplated by the plea agreement. We find this
claim to be without merit. A review of the record makes clear that
counsel's decision not to pursue the three-level adjustment was well
within the wide range of professional competence. Indeed, under the
circumstances, it was probably wise not to highlight this issue for the
sentencing court. After all, in finding that the dangerous weapon
adjustment was appropriate, the sentencing court necessarily con-
cluded that Whisonant's testimony that he never carried a gun in con-
nection with the offense was a fabrication. Had counsel insisted on
the three-level adjustment for acceptance of responsibility, thus high-
lighting the issue for the court, it is not unlikely that Whisonant would
have lost the two-level adjustment for acceptance of responsibility
altogether because of his testimony at his sentencing hearing. In fact,
it is not unthinkable that the sentencing court, once focused on the
issue of Whisonant's acceptance of responsibility, which requires that
he truthfully recount the details of his offense and"any additional rel-
evant conduct," U.S.S.G. § 3E1.1 application note 1(a), might have
tacked on an obstruction of justice adjustment for perjurious testi-
mony at the sentencing hearing, see U.S.S.G.§ 3C1.1. Accordingly,
we conclude that counsel's not emphasizing the acceptance of respon-
sibility issue was a completely reasonable tactical decision and cannot
support a claim for ineffective assistance.

Next, Whisonant contends that he is entitled to relief because the
Government breached the plea agreement. Specifically, Whisonant
argues that the Government failed to make good on its promise that
it would alert the sentencing court that Whisonant was entitled to a
three-level, rather than a two-level, downward departure for accep-
tance of responsibility. Whisonant also contends that the Government
breached the plea agreement because it required the Government to
"make known to the Court at sentencing the full extent of the Defen-
dant's cooperation." J.A. 51. Whisonant was debriefed by investigat-

                    11
ing authorities prior to sentencing, but the Government did not bring
this fact to the attention of the sentencing court.

We believe that Whisonant reads into the plea agreement an affir-
mative duty on the part of the Government that is not there with
respect to the three-level acceptance of responsibility adjustment. The
plea agreement provides simply that the Government is bound to the
position that such an adjustment is appropriate. There is nothing in the
agreement that requires the Government to recommend or move for
a three-level downward adjustment for acceptance of responsibility.
And, Whisonant does not suggest that the Government took a position
contrary to its agreement that a three-level reduction was appropriate.

To the extent that the plea agreement created an affirmative duty
on the part of the Government to reveal favorable information to the
court at the sentencing hearing, the Government's failure to do so, at
least in these circumstances, does not provide Whisonant with a basis
for relief. Under the plea agreement, the Government agreed "[t]hat
it [would] make known to the Court at sentencing the full extent of
the Defendant's cooperation." J.A. 51. Whisonant argues that prior to
the sentencing hearing, he had cooperated in a debriefing with federal
agents. At sentencing, however, the Government did not bring this to
the attention of the court. Its failure to do so, claims Whisonant,
reduced his chances of securing a three-level reduction under
U.S.S.G. § 3E1.1(b)(1) instead of the two-level reduction awarded by
the sentencing court. But, even if we suppose that the Government
breached the plea agreement by failing to suggest to the sentencing
court that Whisonant's cooperation in the debriefing entitled him to
consideration for a three-level acceptance of responsibility adjust-
ment, we perceive no prejudice for the same reasons that we reject
Whisonant's ineffective assistance claim--had the court been asked
to reconsider the PSR's recommendation on this issue, Whisonant
would likely have lost his acceptance of responsibility adjustment
entirely because of his testimony at the sentencing hearing. Indeed,
because the sentencing court essentially concluded that Whisonant
lied during his sentencing testimony about his firearms, Whisonant
probably does not even qualify for the two-level adjustment that he
received. See U.S.S.G. § 3E1.1, application note 1(a) (requiring that
the recipient of an acceptance of responsibility adjustment "truthfully
admit[ ] the conduct comprising the offense(s) of conviction, and

                    12
truthfully admit[ ] . . . any additional relevant conduct"). If anything,
the Government's failure to bring this issue to the sentencing court's
attention worked to Whisonant's benefit.

Finally, we note that because the sentencing court imposed a term
of imprisonment at the bottom of Whisonant's sentencing range, the
Government's alleged breach of the plea agreement could not have
prejudiced Whisonant (assuming, as we explained previously, that
Whisonant was not entitled to a downward adjustment for acceptance
of responsibility because of his testimony at sentencing). Even if the
Government had commented at sentencing on Whisonant's ostensible
cooperation, the court could not have fixed a lesser sentence. Since
Whisonant is not claiming that his post-plea cooperation made him
eligible for a downward departure for substantial assistance, see
U.S.S.G. § 5K1.1, we fail to see how Whisonant suffered any preju-
dice.

V.

For the foregoing reasons, we grant Whisonant's application for a
certificate of appealability with respect to Whisonant's claim that trial
counsel provided ineffective assistance by not moving to suppress the
taped telephone conversation between Whisonant and Gatling, vacate
that portion of the district court's judgment, and remand that claim for
further consideration by the district court. We deny Whisonant's
application for a certificate of appealability and dismiss his § 2255
petition with respect to his remaining claims.

DISMISSED IN PART, VACATED IN PART,
AND REMANDED

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