USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2387
GREGG M. BEMIS,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Gregg M. Bemis on brief pro se.
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Donald K. Stern, United States Attorney, and Annette Forde,
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Assistant United States Attorney, on brief for appellee.
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July 22, 1994
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SELYA, Circuit Judge. Petitioner Gregg Bemis appeals
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pro se from the summary dismissal of his motion to vacate,
set aside, or correct his sentence under 28 U.S.C. 2255.
The centerpiece of his petition is the allegation that
government prosecutors have reneged on a promise, made as
part of his 1984 plea agreement, to secure (or at least
recommend) his entry into the Federal Witness Protection
Program (FWPP) upon his release from prison. From this
premise, petitioner advances a number of claims--most of
which are no longer zoetic and, therefore, need not be
described at any length. In particular, to the extent he is
seeking release on his state sentence, that claim is now
moot. To the extent he is seeking damages for wrongful
imprisonment, that claim has been explicitly withdrawn. And
to the extent he is challenging (for reasons that are never
explained) the term of probation imposed in 1991, that claim
has received no developed argumentation on appeal and so has
been implicitly waived. See, e.g., Ryan v. Royal Ins. Co.,
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916 F.2d 731, 734 (1st Cir. 1990). The dismissal of these
various claims is therefore affirmed.
Petitioner's central claim--that the government's
failure to fulfill its alleged promise regarding FWPP
participation constitutes a due process violation--is another
matter. "[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be
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said to be part of the inducement or consideration, such
promise must be fulfilled." Santobello v. New York, 404 U.S.
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257, 262 (1971). Contrary to the district court's
jurisdictional ruling, we believe that habeas corpus provides
an appropriate procedural vehicle for advancing a Santobello
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claim. See, e.g., Kingsley v. United States, 968 F.2d 109,
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111 (1st Cir. 1992) (action under 2255 alleging breach of
plea agreement).
The government suggests that, if the U.S. Attorney's
Office in fact made any promise regarding FWPP participation,
such a representation would have been ultra vires, see, e.g.,
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Doe v. Civiletti, 635 F.2d 88, 90 (2d Cir. 1980), and for
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that reason unenforceable. Yet "[a] plea induced by an
unfulfillable promise is no less subject to challenge than
one induced by a valid promise which the Government simply
fails to fulfill." United States v. Cook, 668 F.2d 317, 320
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(7th Cir. 1982); accord, e.g., Mabry v. Johnson, 467 U.S.
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504, 509 (1984) (plea induced by "unfulfillable promises"
subject to challenge); Correale v. United States, 479 F.2d
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944, 946-47 (1st Cir. 1973) (plea rendered involuntary
because of failure to carry out promise that was "impossible
of fulfillment"). The government's argument instead pertains
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to the appropriate form of remedy--a matter that we have no
occasion here to address.1
As a result, "the crucial question is not whether the
Government had the authority to carry out the promise which
[petitioner] claims he understood it to make, but whether it
did in fact make such a promise." Cook, 668 F.2d at 320.
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Petitioner advances a colorable claim in the sense that, on
appeal, he has submitted two affidavits from the former
prosecutors in his case that strongly support his
allegations.2 He nonetheless has two strikes against him in
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1. We do note that courts on occasion have specifically
enforced promises that would encroach on the jurisdiction of
independent entities. See, e.g., Palermo v. Warden, 545 F.2d
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286, 296 (2d Cir. 1976) (enforcing promise of early parole,
in face of contrary decision of Parole Board, and ordering
defendant's release as "the only meaningful relief in the
context of this case"), cert. dismissed, 431 U.S. 911 (1977);
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see generally 2 W. LaFave & J. Israel, Criminal Procedure
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20.2, at 600-01 (1984). We also note the rather obvious
point that, should a breach of promise be found in the
instant case, the appropriate form of remedy will depend on
the nature of that promise. See, e.g., Geisser v. United
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States, 513 F.2d 862, 869, 872 (5th Cir. 1975) (promise by
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Department of Justice, which district court construed as
assurance that petitioner would not be deported to
Switzerland, is interpreted by appeals court as pledge to use
its "best efforts" to persuade State Department not to do so;
as so construed, promise is specifically enforced).
2. The government, while protesting that such evidence
should not be considered, has responded by submitting the
transcript of the Rule 11 hearing and a copy of the written
plea agreement. We think it appropriate to consider such
materials, inasmuch as the district court summarily dismissed
the pro se petition here sua sponte without affording
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petitioner the opportunity to amend. Cf. Johnson v.
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Rodriguez, 943 F.2d 104, 108 n.3 (1st Cir. 1991) (agreeing to
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consider claim not raised below under such circumstances),
cert. denied, 112 S. Ct. 948 (1992); Lesko v. Lehman, 925
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this regard. First, the written plea agreement (signed by
petitioner, his counsel, and the U.S. Attorney) contains no
reference to the FWPP, and declares that "[n]o additional
promises, agreements or conditions have been entered into
other than as set forth in this letter and none will be
entered into unless in writing and signed by all parties."
Second, at the Rule 11 hearing, the district court read
portions of the plea agreement into the record and then
inquired of petitioner: "Except for what is contained in that
agreement, has anyone made any promises to you to induce you
to plead guilty?" Petitioner, while under oath, responded in
the negative. No mention of the FWPP was made at any time
during this hearing.
Given these circumstances, petitioner's attempt to
establish that an additional promise was made as part of the
inducement for his plea faces daunting hurdles. A defendant
is ordinarily bound by his or her representations in court
disclaiming the existence of additional promises. See, e.g.,
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Baker v. United States, 781 F.2d 85, 90 (6th Cir.) ("where
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Rule 11 procedures were fully adequate, absent extraordinary
circumstances, or some explanation of why defendant did not
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F.2d 1527, 1538 n.8 (3d Cir.) (noting that appeals court had
directed petitioner to file affidavit from his attorney
detailing plea negotiations), cert. denied, 112 S. Ct. 273
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(1991). It makes no difference in any event, since a remand
would be warranted even if we confined our attention to the
allegations in the petition, disregarding both sides'
additional proffers.
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reveal other terms, at least when specifically asked to do so
by the court, a defendant's plea agreement consists of the
terms revealed in open court"), cert. denied, 479 U.S. 1017
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(1986); Barnes v. United States, 579 F.2d 364, 366 (5th Cir.
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1978) ("Where, from the transcript, the plea-taking
procedures are clear and regular on their face, a petitioner
asserting the existence of a bargain outside the record and
contrary to his own statements under oath bears a heavy
burden."); see also United States v. Pellerito, 878 F.2d
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1535, 1539 (1st Cir. 1989) (defendant cannot "turn his back
on his own representations to the court merely because it
would suit his convenience to do so"). Likewise, the use of
parol evidence to supplement the terms of an unambiguous
written plea agreement is ordinarily frowned upon, especially
where that agreement disclaims the existence of additional
promises. See, e.g., United States v. Ingram, 979 F.2d 1179,
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1184 (7th Cir. 1992), cert. denied, 113 S. Ct. 1616 (1993);
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United States v. Gamble, 917 F.2d 1280, 1282 (10th Cir.
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1990); Hartman v. Blankenship, 825 F.2d 26, 29 (4th Cir.
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1987); see also United States v. Hogan, 862 F.2d 386, 388
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(1st Cir. 1988) (fact that plea agreement disclaims existence
of other promises "militate[s] strongly" against defendant's
assertion to contrary).
Yet each of these rules is subject to exception in
unusual cases. In Blackledge v. Allison, 431 U.S. 63 (1977),
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the Court stated that no "per se rule" could be adopted
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"excluding all possibility that a defendant's representations
at the time his guilty plea was accepted were so much the
product of such factors as misunderstanding, duress, or
misrepresentation by others as to make the guilty plea
[unlawful]." Id. at 75; see, e.g., Gamble, 917 F.2d at 1282
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& n.1 (noting that case did not "come within any Blackledge
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exception"); United States v. Hammerman, 528 F.2d 326, 331
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(4th Cir. 1975) (defendant's oral disavowal of additional
promises cannot be "considered conclusive" under
circumstances). Referring to the parol evidence rule, the
Blackledge Court explicitly noted that a written contractual
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provision disclaiming the existence of additional promises,
while deserving of "great weight," does not "conclusively bar
subsequent proof that such additional agreements exist and
should be given force." 431 U.S. at 75 n.6; accord, e.g.,
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Kingsley 968 F.2d at 115 (explaining that "parol evidence
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rule is not rigidly applied in construing plea agreements"
because contract issues that are involved implicate
"constitutional rights as well as concern for the fair
administration of justice") (quoting United States v. Garcia,
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956 F.2d 41, 43-44 (4th Cir. 1992)) (internal quotation marks
omitted).3
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3. We acknowledge that the Blackledge holding was based in
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part on the sparse record of the change-of-plea hearing and
the "ambiguous status of the process of plea bargaining at
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For several reasons, we are unwilling prematurely to
foreclose the possibility that the instant case might be
sufficiently unusual to call for an exception to these rules.
First, petitioner alleges that both his counsel and the
government prosecutor advised him that the FWPP promise was
an "administrative matter" that did not need to appear in the
plea agreement or be mentioned in court. Second, he claims
that, to the extent this advice was erroneous, his counsel
provided ineffective assistance. Third, despite the
provision in the plea agreement requiring any amendments to
be in writing, the record indicates that the agreement was
later modified (to provide for the dismissal of three counts)
without such written documentation. Fourth, petitioner could
not have been expected to object, at the Rule 11 hearing or
at sentencing, to the alleged breach of promise, inasmuch as
any such breach occurred only years later. Compare, e.g.,
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Baker, 781 F.2d at 90 ("It is significant that ... the
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alleged promise was broken, if at all, right before defendant
and in open court."). Fifth, the district court, having
summarily dismissed on jurisdictional grounds, has not had
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the time the guilty plea was made." 431 U.S. at 76; see
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Baker, 781 F.2d at 89 (distinguishing Blackledge on this
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basis). Nonetheless, it cannot be said that the advent of
modern Rule 11 procedures has robbed that decision of all
currency. See, e.g., 2 W. LaFave & J. Israel, Criminal
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Procedure 20.5, at 668 (1984) (even where Rule 11 hearing
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was flawless, there are still "some circumstances" in which
an evidentiary hearing may be required) (internal citations
and quotation marks omitted).
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the opportunity to consider this issue. And finally, on the
limited record before us--keeping in mind, especially, the
prosecutors' affidavits (which the district court did not
have the benefit of reading) and the fact that petitioner was
placed in a security program while in prison-- the allegation
that he was promised protection cannot be dismissed out of
hand as fanciful. While it is unlikely that any of these
factors, standing alone, would warrant a remand, we think
that they are sufficient in combination to render further
proceedings appropriate.
We need go no further.4 For the reasons stated, the
judgment of the district court is affirmed in part and
reversed in part, and the case is remanded for further
proceedings.
It is so ordered.
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4. We note that the district court has appointed counsel in
a related action recently filed by petitioner. Bemis v.
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Pappalardo, No. 94-10151 (D. Mass.). Whether the two actions
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ought to be consolidated, and whether counsel ought to be
appointed in the instant case, are matters we entrust to the
district court's discretion. Cf. United States v. Mala, 7
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F.3d 1058, 1064 n.7 (1st Cir. 1993) (noting that "selection
of appointed counsel is a matter best left to the court in
which such counsel is to appear"), cert. denied, 114 S. Ct.
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1839 (1994).
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