The district court declined to find that Johnson had been denied due process either by virtue of the failure of federal agents to fulfill their promises, or, in what the court characterized as a related point, the failure of the state trial court to take those promises and Johnson's cooperation into account before sentencing.6 We affirm these rulings of the district court. We find it necessary, however, to remand the case to the district court for further proceedings to determine whether Johnson was denied effective assistance of counsel in the Michigan prosecution.

The Michigan Supreme Court found that FBI agents "had indeed promised [Johnson] that he 'would do no time' for his Michigan convictions if he provided informant services, and that [he] did provide such services...." People v. Whalen, 412 Mich. 166, 168, 312 N.W.2d 638, 639 (1981). The Court also found that Johnson "was instructed to tell no one" of his agreement to cooperate and, as a result, neither defense counsel nor the trial judge appreciated that such promises had been made. Id.

As a general rule, fundamental fairness requires that promises made during plea-bargaining and analogous contexts be respected. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 498-99, 30 L. Ed. 2d 427 (1971); United States v. Hudson, 609 F.2d 1326, 1328 (9th Cir.1979); United States v. Goodrich, 493 F.2d 390, 393 (9th Cir.1974). That rule, however, is typically subject to two conditions: (1) the agent must be authorized to make the promise; and (2) the defendant must rely to his detriment on that promise. Hudson, 609 F.2d at 1329; Goodrich, 493 F.2d at 393.

Assuming, arguendo, that Johnson did detrimentally rely upon this promise,7 he has nevertheless failed to meet his burden of establishing that the agents' promise was properly authorized. See United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir.1960) (burden of persuasion is on habeas petitioner to show false promises induced guilty plea).8 Nothing in the record suggests that federal agents were authorized by state authorities to promise that Johnson would serve no time on state charges. Quite the contrary, the record is replete with references to the need of federal officials to keep state officials totally unaware of Johnson's cooperation.

Nor does Johnson cite authority for the novel proposition that the unauthorized promises of federal agents are binding in state judicial proceedings. State agents are without authority to bind federal proceedings, see United States v. McIntosh, 612 F.2d 835, 837 (4th Cir.1979); United States v. Long, 511 F.2d 878, 881-82 (7th Cir.), cert. denied, 423 U.S. 895, 96 S. Ct. 196, 46 L. Ed. 2d 128 (1975), and the converse is no less true. In the absence of authorization, the promises made by federal agents in this case do not bar the reinstatement of Johnson's original sentence by the Michigan Supreme Court. People v. Whalen, 412 Mich. 166, 312 N.W.2d 638 (1981).9

We are also unable to find a constitutional violation in the failure of the state trial court to take these unauthorized federal promises or Johnson's cooperation with federal officials into account before sentencing. Reliance upon Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948), is misplaced. There, information before the sentencing judge was untrue. Here, it was simply incomplete, and incomplete as a result of Johnson's own concealment. Although the inducement prompting this concealment may arguably have violated Johnson's sixth amendment right to the effective assistance of counsel, see Part C infra, the concealment itself reflects Johnson's independent calculation that remaining silent, given federal promises, would be in his own best interest. Under these circumstances, there was no violation of due process.10

In Johnson's previous habeas petition in the Eastern District of Michigan, the district court dismissed four of Johnson's six claims pursuant to Fed.R.Civ.P. 12(b)(6). Whalen v. Johnson, 438 F. Supp. at 1205. The court declined, however, to dismiss Johnson's claim that he was denied the effective assistance of counsel by heeding the caution of federal agents not to reveal his cooperation to his attorney.11 Instead, the court noted that "[f]urther development of the record is necessary to determine whether petitioner was so instructed by federal officials and if his reliance upon such instructions was justified." Id. (footnote omitted).12

While this Michigan petition was still pending, Johnson filed the instant petition in the Southern District of California. With the exception of a new claim that the failure of federal agents to fulfill their promise violated his right to due process of law, this second petition set forth essentially the same contentions as those pending in Michigan. Johnson's request for dismissal of his Michigan petition without prejudice was denied. See 452 F. Supp. at 558. After inquiring, however, "whether dismissal of his Michigan petition would bar his California action" and being assured that the Michigan district court "had no intention of usurping the role of the judge presiding over the matter in California," id., Johnson agreed to dismissal with prejudice. Id. In dismissing Johnson's petition, the Michigan district court noted that

[I] believe that, particularly in light of 28 U.S.C. Sec. 2244(a), petitioner will be collaterally estopped from raising in California the grounds he raised in the petition which we now dismiss. The determination of that issue, however, is for the court in California....

Id.

Unfortunately, the record certified on appeal fails to reflect why the district court in California determined not to reach Johnson's ineffective assistance of counsel claim. From the docket sheet below, we know only that the district court originally entered a Memorandum Decision & Order dismissing Johnson's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2244(a), (b); we do not know its rationale. In essence, section 2244 vests district courts with the discretion to decline to consider on habeas corpus contentions previously considered and rejected on prior applications for the writ.13

Several months later, however, the district court vacated this order, granting a stay to permit Johnson to seek relief in the Michigan courts on those claims not previously exhausted. Following review by the Michigan state courts, culminating in the reinstatement of his sentence by the Michigan Supreme Court, Johnson successfully moved to reopen proceedings in California. At this point, the district court ordered rebriefing on what it characterized as "the two remaining issues;" namely, whether Johnson's due process rights had been violated by the failure either of federal agents to keep their promises or of the Michigan Supreme Court to recuse itself from consideration of Johnson's case.

We are unable to ascertain why the district court in California failed expressly to entertain Johnson's effective assistance claim, a claim asserted in both his Michigan and California petitions.14 We may not affirm a district court's denial of the writ of habeas corpus unless the court held a hearing on the merits of the petition, or the record on appeal indicates that the court independently reviewed all relevant portions of the state court record. Rhinehart v. J.B. Gunn, 598 F.2d 557, 558 (9th Cir.1979) (per curiam); Turner v. Chavez, 586 F.2d 111, 112 (9th Cir.1978) (per curiam). Finding neither indication in the record before us, we remand for such independent consideration of Johnson's sixth amendment claim as proves appropriate.15

In so doing, we necessarily hold that despite the Michigan district court's suggestion, Johnson is not "collaterally estopped" from raising in California the grounds raised in his Michigan petition, the dismissal with prejudice notwithstanding. First, it is axiomatic that res judicata is inapplicable in habeas proceedings. See, e.g., Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 1073, 10 L. Ed. 2d 148 (1963).16 Second, while 28 U.S.C. Sec. 2244 is designed to address the problem of successive petitions based on grounds previously heard and decided, id. at 12, 83 S.Ct. at 1075, the Supreme Court has observed that

[c]ontrolling weight may be given to denial of a prior application for federal habeas corpus or Sec. 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Sanders, 373 U.S. at 15, 83 S.Ct. at 1077 (footnote omitted).17 Because we find that the prior dismissal in Michigan was not a decision on the merits, the district court may not decline to entertain Johnson's sixth amendment claim on the basis of Sec. 2244.18

Under the statute, discretion is only permitted if the prior decision followed "an evidentiary hearing on the merits of a material factual issue, or ... a hearing on the merits of an issue of law...." 28 U.S.C. Sec. 2244(b). As the Fourth Circuit has observed,

[s]ection 2244 is designed to safeguard against the multiplication of meritless petitions by prisoners who have already had the same issues considered and decided. However, the doctrine should not be invoked against a petition which seeks again an adjudication theretofore repeatedly sought but never obtained on the merits.

Hobbs v. Pepersack, 301 F.2d 875, 879 (4th Cir.1962).19

Although it is true that dismissals with prejudice are generally treated as preclusive decisions on the merits,20 legal rules and presumptions fully operative in other contexts must not be "construed to derogate from the traditional liberality of the writ of habeas corpus...." Sanders, 373 U.S. at 11, 83 S.Ct. at 1075. The efficient administration of justice lends powerful support to a presumption against entertaining actions previously dismissed with prejudice.21 Yet justice itself requires that we assure prisoners unimpeded access to the writ of habeas corpus, a " 'great constitutional privilege' " of " 'immemorial antiquity,' " "inextricably intertwined" with the preservation "of personal liberty." Fay v. Noia, 372 U.S. 391, 400-01, 83 S. Ct. 822, 828, 9 L. Ed. 2d 837 (1963) (citations omitted). Thus, we conclude that the dismissal of petitioner's habeas corpus petition with prejudice at his request did not constitute a decision "on the merits" for purposes of section 2244(b) or Sanders. See Wilwording v. Swenson, 502 F.2d 844, 849 (8th Cir.1974), cert. denied, 420 U.S. 912, 95 S. Ct. 835, 42 L. Ed. 2d 843 (1975) (in the context of habeas corpus, decision "on the merits" presupposes an evidentiary hearing on contested issues of fact; prior dismissal with prejudice fails to satisfy this criterion).

The Michigan district court did not determine the legality of Johnson's detention. On his ineffective assistance of counsel claim, Johnson has yet to receive, either in Michigan or California, the federal hearing or the independent federal review of the state court record to which he is entitled. Accordingly, the district court may not decline to entertain Johnson's sixth amendment claim on the basis of the prior dismissal with prejudice.22

On remand, the district court should assess whether Johnson's sixth amendment right to the effective assistance of counsel was abridged. The issues presented by Johnson's petition are novel, even unique; thus, we will not undertake to define the issues in detail, but will leave that task to the district court.

We note, however, that one relevant line of inquiry is whether Johnson can bear the burden of showing that the conduct of the agents produced circumstances in which "the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel [was] so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (1984); see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) ("Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense."). If so, relief can be granted without a showing of specific prejudice at the trial. Another relevant line of inquiry is that which must be pursued if there is no showing of the extreme circumstances described above: whether, from whatever cause, "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 104 S. Ct. at 2064. The inquiry here is dependent on the factual context of defendant's trial and sentencing, and the standards evolved by the Supreme Court are to be flexibly applied:

[T]he principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.

Strickland, 104 S. Ct. at 2069.

Thus, we conclude that while "[o]ne threat to the effective assistance of counsel ... lies in the inhibition of free exchanges between defendant and counsel," Weatherford v. Bursey, 429 U.S. 545, 554-55 n. 4, 97 S. Ct. 837, 843 n. 4, 51 L. Ed. 2d 30 (1977), we are remanding to provide Johnson with an opportunity to demonstrate whether he meets the criteria of Cronic and Strickland as applied to his unusual situation. The district court should explore all appropriate avenues in examining this problem.

The district court's denial of Johnson's two due process claims is affirmed. The district court erred, however, in failing to rule upon Johnson's claim that the conduct of the federal agents deprived him of the effective assistance of counsel. With regard to that issue, the denial of the petition is reversed and the case is remanded to the district court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.