Filed: Feb. 16, 2010
Latest Update: Mar. 03, 2020
Summary: Cthe prosecutor swore that no such, recommendation or commitment had been made to, plea counsel;, 1970) ([A] mere prediction by counsel of the court's likely, attitude on sentence, short of some implication of an agreement or, understanding, is not ground for attacking a plea.
United States Court of Appeals
For the First Circuit
No. 09-1011
SCOTT FORSYTH,
Petitioner, Appellant,
v.
LUIS SPENCER,
SUPERINTENDENT AT MCI NORFOLK,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Stahl and Lipez,
Circuit Judges.
Victoria L. Nadel for appellant.
Jessica V. Barnett, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.
February 16, 2010
BOUDIN, Circuit Judge. Scott Forsyth, appealing after a
denial of his petition for habeas corpus, is serving eight to ten
years in state prison for assault and battery with a dangerous
weapon, malicious destruction of property, and attempted arson.
His conviction stemmed from an incident at his mother's home in the
pre-dawn hours of September 10, 2000. During an argument, Forsyth
took a nearby can of gasoline and chased his mother into the
kitchen with it; spilled gasoline all over the kitchen floor and
splashed it onto her head and shoulders; and threatened to set fire
to his mother, himself, and the house.
When Forsyth's mother attempted a 911 call, Forsyth
pulled the phone from the wall, but police responded to the
interrupted call. Forsyth was thereafter charged in the
Massachusetts Superior Court with assault with intent to murder and
the three lesser offenses listed above. Just prior to proceedings
on December 19, 2000, an unrecorded lobby conference with the
presiding judge occurred to discuss a possible guilty plea and
sentence. What was said in the conference is evidenced by later
affidavits submitted by the three individuals who attended it (in
addition to the judge): the prosecutor, Forsyth's plea counsel, and
a probation officer.
From these affidavits and the later proceedings, it is
clear the parties at the conference could not agree upon a
recommended sentence; but they agreed that Forsyth would aim to
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plead guilty to the three less serious charges in exchange for the
Commonwealth's dismissal of the assault with intent to murder
charge; and they discussed obtaining for his sentencing a mental
health evaluation based on Forsyth's history of mental illness,
including bipolar disorder. None of the three affiants claims that
a specific sentence recommendation was promised by the prosecutor,
but recollections differ on what if anything was said as to
possible numbers.
In her affidavit, Forsyth's plea counsel said that her
"memory [was] that the Commonwealth was willing to request a three
to five year term if the defendant was in agreement"; that absent
such an agreement the prosecutor did not commit to any
recommendation; but that plea counsel thought the Commonwealth
would still recommend and the judge would accept a term in that
range. The prosecutor and probation officer had no memory that a
three to five year term was mentioned, and the probation officer
remembered only that the prosecutor had said in the conference that
she "was going to recommend a lengthy period of incarceration."1
1
The prosecutor said the following:
Although I have no specific memory of ever mentioning
three to five years as a possible sentence, during
preliminary negotiations I may have offered to try to get
a three to five year sentence on an agreed plea. I never
secured this recommendation by my office because the
defendant made clear that he would not join in a
sentencing recommendation.
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After the lobby conference, Forsyth's plea counsel
conferred with Forsyth. Forsyth averred (in a 2003 affidavit) that
his plea counsel told him that "the lawyer for the government said
she would ask for three to five years of incarceration in the House
of Correction," but his plea counsel's affidavit states that she
"never told Mr. Forsyth that the Commonwealth would recommend at
most three to five years." Instead, her affidavit says, she told
him only that a "three to five year term had been discussed, [but]
the Commonwealth had not guaranteed what its recommendation was
going to be."
Forsyth then pled guilty to the three lesser charges
already listed and the Commonwealth dismissed the assault with
intent to murder charge. The court made the usual inquiries to
assure that the plea was being entered voluntarily and with a basis
in fact. The court also invited the prosecutor to list the maximum
penalties for each of the charges to which Forsyth was pleading
guilty and confirmed that Forsyth understood that the court could
impose the maximum sentence for each charge and do so
consecutively. Both in a signed, written waiver of rights and in
court, Forsyth confirmed that no promises had been made to induce
his plea.
After a psychiatric evaluation, a sentencing hearing was
held on June 4, 2001. The Commonwealth recommended that Forsyth be
sentenced to eight to ten years in prison for assault and battery
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with a dangerous weapon. The court accepted the Commonwealth's
recommendation, taking note of the seriousness of Forsyth's prior
criminal history, which included a previous attempt on his mother's
life in which he had stabbed her with a screwdriver. Forsyth
reacted angrily to the sentence but, at the time, did not assert
that he had been promised or assured of either a different
recommendation by the prosecutor or a different sentence.
In July 2001, Forsyth filed motions to revise and revoke
his sentence. That fall, he filed pro se a motion to withdraw his
plea, asserting in an affidavit that he "had a deal and copped out
to house time split with probation." Thereafter, in 2003, Forsyth
(now aided by successor counsel) claimed in a new motion to
withdraw the plea that his plea counsel either "misunderstood the
Commonwealth's proposed recommendation or . . . misinformed Mr.
Forsyth of what that recommendation would be," and that Forsyth
"acted in reliance upon [his] attorney's representation of the
government's position." It was at this point that Forsyth filed
the 2003 affidavit earlier quoted.2
In response, the Commonwealth submitted the affidavits
(discussed above) of the prosecutor, Forsyth's plea counsel, and
2
Forsyth's new counsel had no personal knowledge of what
happened incident to the guilty plea but she stated, in an
accompanying affidavit of her own, that Forsyth's plea counsel had
told her that in the December 19 lobby conference "the Commonwealth
recommended a three to five year term and that the Court appeared
amenable to a House of Correction term followed by probation."
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the probation officer regarding the December 19 lobby conference
and Forsyth's conversation with plea counsel prior to entering his
guilty plea. The trial judge denied the motions to revise the
sentence and to withdraw the guilty plea and denied a request for
an evidentiary hearing, saying that Forsyth's affidavit was "self-
serving," that he (the judge) "credit[ed] the affidavits" of the
prosecutor and Forsyth's plea counsel, and that the Commonwealth
had in fact told Forsyth's counsel that it intended to recommend "a
lengthy sentence." The Massachusetts Appeals Court affirmed,
Commonwealth v. Forsyth, 868 N.E.2d 953,
2007 WL 1775200 (Mass.
App. Ct. 2007), and further review was denied, Commonwealth v.
Forsyth,
873 N.E.2d 247 (Mass. 2007).
Forsyth then filed a federal habeas corpus petition,
arguing that his plea was based upon inaccurate and incomplete
information and therefore involuntary and that he had received
ineffective assistance of counsel. A flawed plea may sometimes
comprise a due process violation, Boykin v. Alabama, 395 U.S. 238,
243 & n.5 (1969); inadequate counseling can also undermine due
process and Sixth Amendment rights where counsel's efforts do not
meet minimum standards and where the outcome was thereby affected.
Strickland v. Washington,
466 U.S. 668, 684-85, 687-96 (1984).
Adopting a magistrate judge's report and recommendation,
the district court dismissed the petition. Granted a certificate
of appealability, Forsyth has now renewed his constitutional claims
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in this court: mainly he contends that his plea counsel misled him
into thinking that the prosecutor had promised to recommend a three
to five year prison sentence or at least predicted ineptly that the
Commonwealth would make such a recommendation.
Our review of the district court's decision is de novo.
Pina v. Maloney, 565 F.3d 48, 52 (1st Cir. 2009). The governing
federal habeas statute provides that a state decision may be
overturned--so far as it resolves factual issues--only if it is
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."3 28 U.S.C.
§ 2254(d)(2) (2006). As for federal legal issues decided by the
state court, they may be set aside only if the decision "was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court."
Id.
§ 2254(d)(1).
The state courts credited the affidavit of Forsyth's plea
counsel; the key pertinent content amounted to this: that plea
counsel had told Forsyth that the prosecutor had not promised a
3
The petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). Rashad v. Walsh, 300 F.3d 27,
34 (1st Cir. 2002). A different provision of the statute requires
clear and convincing evidence from the petitioner in order to
defeat a state court factual finding, 28 U.S.C. § 2254(e)(1), but
we need not consider whether this standard applies because we find
that Forsyth cannot prevail even under the arguably less
deferential section 2254(d)(2) standard. Wood v. Allen, No. 08-
9156,
2010 WL 173369, at *6 & n.2 (U.S. Jan. 20, 2010); see John v.
Russo,
561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender,
507 F.3d
50, 56-60 (1st Cir. 2007), cert. denied,
128 S. Ct. 1719 (2008).
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specific recommendation and that plea counsel had never told him
that the recommended sentence would not exceed three to five years.
There is ample independent support in the record for plea counsel's
sworn statements and, while no single element is conclusive, the
collective evidence is powerfully supportive:
Cthe prosecutor swore that no such
recommendation or commitment had been made to
plea counsel;
Cthe probation officer recalled only
that the prosecutor had said in the lobby
conference that she was going to recommend a
lengthy period of incarceration;
Cpetitioner represented both in the
written waiver of rights and in open court
that no promises had been made to secure his
guilty plea;
Cwhen the prosecutor at sentencing later
recommended the eight to ten year term,
neither plea counsel nor petitioner responded
that this was contrary to a commitment; and
Con pronouncement of the sentence,
petitioner became quite angry, but did not say
that he had been told of any commitment by the
prosecutor to recommend a shorter sentence.
True, Forsyth later asserted that he was told that the
prosecutor would recommend the three to five year sentence, but
such professions are not uncommon when a tough sentence is imposed,
and in this case they were belated. True, his successor defense
counsel attested to a supposed admission by plea counsel (see note
2, above); but assuming plea counsel said what is recounted, it
looks to be little more than a reference to a possible proposed
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deal--a joint recommendation for three to five years--that was
never pursued.
In all events, the state court credited plea counsel and
the prosecutor and declined to credit Forsyth. Certainly Forsyth
fails to establish that the state court erred in finding no promise
or commitment by the prosecutor existed and in finding plea counsel
did not lead Forsyth to believe the contrary, still less that the
state court's decision was "based on an unreasonable determination
of the facts." 28 U.S.C. § 2254(d)(2). His due process claim thus
fails insofar as it rests on the premise that plea counsel provided
false information about the prosecutor's commitments or intentions.
Nor was the district court required to hold an
independent evidentiary hearing to try the issues already
determined by the state courts. Pina, 565 F.3d at 54;
Teti, 507
F.3d at 60-63. Forsyth has offered no reason to believe that,
"with the benefit of an evidentiary hearing, [he could] develop a
factual record that would entitle him to habeas relief." Schriro
v. Landrigan,
550 U.S. 465, 475 (2007). The district court did not
abuse its discretion in declining to hold an evidentiary hearing.
Forsyth presses on appeal a separate claim that plea
counsel advised Forsyth that a three to five year sentence was the
maximum likely sentence that would be recommended or that the judge
would impose, thereby offering advice that was incompetent and
depriving Forsyth of the constitutionally required effective
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assistance of counsel. The factual premise for this claim is not
well developed and the claim itself may not have been preserved.
But the short answer is that if plea counsel did prophesy that the
term of three to five years would likely be recommended, imposed or
both, it was hardly an incompetent conjecture.
A defense counsel is entitled to offer to a client
pondering a plea counsel's reasonable best guess as to a likely
sentence.4 Here, the possibility of a joint three to five year
recommendation as part of the plea package may well have been
discussed between counsel; Forsyth's medical history offered some
prospect that the judge might be sympathetic; his mother, the
victim, opposed incarceration; and the Commonwealth's non-binding
proposed sentencing guidelines were favorable to Forsyth. If
counsel offered such a prediction, she was not incompetent in doing
so. Strickland, 466 U.S. at 687-91.
Forsyth separately argues that his plea counsel should
have alerted the court to the pre-plea negotiations as a mitigation
factor at sentencing, but he offers no legal analysis or reason why
this would have affected his sentence; indeed, the judge was already
4
See Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994)
("[A]n inaccurate prediction about sentencing will generally not
alone be sufficient to sustain a claim of ineffective assistance of
counsel."); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir.
1970) ("[A] mere prediction by counsel of the court's likely
attitude on sentence, short of some implication of an agreement or
understanding, is not ground for attacking a plea." (internal
quotation marks omitted)).
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aware of negotiations, having attended the lobby conference at which
they occurred. Forsyth has also moved to supplement the record, but
the documents to which he refers are already in the record and have
been considered. We affirm the district court's judgment and
dismiss the motion to supplement as moot.
It is so ordered.
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