Petition — Mabry v. Johnson

Office - Supreme Court, U.S. |

83-328 - FILED

AUC 1

No. 29 1963

FES as,

CLERK

3n the Pies

Supreme Court of the Anited States

October Term, 1983

James Mabry, Commissioner,

Arkansas Department of Correction Petitioner

V.

George Johnson Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONER

IN SUPPORT OF PETITION

STEVE CLARK

Attorney General

By: DENNIS R. MOLOCK

Special Assistant Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

Attorneys for Petitioner

—————————=—=—====——_—_—_—_—__—=_—_—__-_-_-_--S=_=_=_=_=a_—

————

i

QUESTION PRESENTED FOR REVIEW

I.

IN THE ABSENCE OF A SHOWING OF DETRI-

MENTAL RELIANCE OR RESULTANT PREJUDICE, AND

PRIOR TO THE ENTRY OF A GUILTY PLEA, DOES A

DEFENDANT HAVE A CONSTITUTIONAL RIGHT TO

SPECIFIC PERFORMANCE OF A PLEA PROPOSAL

WHICH WAS WITHDRAWN 72 HOURS AFTER IT WAS

MADE DUE TO A MISTAKE ON THE PART OF THE

PROSECUTING ATTORNEY?

TABLE OF CONTENTS

Page

Table of Authorities . et

Opinion Below . males ats ee

Jurisdiction ...... Py aletnie oer Vine ste

Constitutional Provisions Involved ......... ul eR

Statement of the Case ee Snes bs Cue ae

Reasons for Granting the Writ............... a aoe

Ss a5 vi ii<'s 55 a's scene w kaise ce ee

Certificate of Service ............... Mei Ona saee cpere oe

Appendix “A”........ a hasarenn cae teceaun A-l

TABLE OF AUTHORITIES

Page

Cooper v. United States, 594 F. 2d 12

TF hea Sc Na a ake hn 6 vow aia 5, 6, 7

Government of Virgin Islands v. Scotland, 614.

FM ee Oe COP. BUG whic vc cece eve cecvescess 5, 6,7

People v. Barnett, 113 Cal. App. 3d 563.................. 7

People v. Heiler, 79 Mich. App. 714, 262 N.W.2d

890 (1977) EOE EE OO i EG ee 7

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495,

i ee 5,6

eee

Shields v. Delaware, 374 A.2d 816, cert. denied

434 U.S. 893

State v. Beckes, 100 Wis. 2d 1 (1980)

State v. Collins, 300 N.C. 142 (1980)

State v. Edwards, 279 N.W.2d 9 (Iowa 1979)

State v. Reasbeck, 359 So.2d 564 (Fla. 1978)

State v. Wheeler, 95 Wash. 2d 799 (1981)

No.___

3n the

Supreme Court of the Anited States

October Term, 1983

James Mabry, Commissioner,

Arkansas Department of Correction Petitioner

V.

George Johnson Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONER

IN SUPPORT OF PETITION

OPINION BELOW

The decision of the United States Court of Appeals for the

Eighth Circuit was rendered on May 6, 1983. Petitioner's

Petition for Rehearing En Banc was denied on June 30, 1983.

JURISDICTION

The basis for this Court's jurisdiction in the present case is

28 U.S.C. §1254. The present Petition is presented within 90

days of the June 30, 1983 denial of the Petition for Rehearing

En Banc and is therefore timely filed in accordance with 28

US.C. §2101.

2

CONSTITUTIONAL PROVISIONS INVOLVED

The present case involves the Due Process Clause of the

Fourteenth Amendment and, arguably, the Sixth Amendment

right to the assistance of counsel.

3

STATEMENT OF THE CASE

The respondent was convicted by a jury on November 23,

1970 of murder in the first degree and was sentenced to a term

of life imprisonment. The conviction arose from an incident

which occurred in a residence in Little Rock, Arkansas where,

in the course of a burglary, the defendant and an accomplice

were discovered by the occupants of the dwelling. An exchange

of gunfire occurred which resulted in the death of Vicki Siscoe

and the wounding of her father and the respondent. A more

detailed summary of the facts is found in Johnson v. State, 252

Ark. 113, 114 (1972).

Subsequent to his conviction for murder, the

respondent was found guilty of burglary and assault with

intent to kill in connection with the entry and wounding of

the deceased's father and was sentenced to a term of 21

years imprisonment.

In July, 1972, the Arkansas Supreme Court reversed

the respondent's first degree murder conviction due to the

trial court's failure to give a requested jury instruction.

Johnson v. State, 252 Ark. 113 (1972).

Shortly after the reversal of the murder conviction, the

public defender was appointed to represent the respondent

at his retrial. On Friday, October 27, 1972, a deputy

prosecuting attorney offered the public defender a plea

proposal consisting of a 21 year sentence to be served

concurrently with the 21 year sentence respondent was

serving for burglary and assault. The public defender

journeyed to the penitentiary where he informed the

respondent of the plea proposal. Respondent, in his

discussion with counsel, agreed to accept the proposal.

On Monday, October 30, 1972, the next working day

after the offer had been made, the public defender called the

prosecutor's office for the purpose of accepting the plea

offer. The public defender was informed that a mistake had

been made and that the sentence could not be made

4

concurrent but rather, would have to be consecutive to the

previously imposed 21 year sentence. Thereafter, the case

was assigned to the chief deputy public defender.

A trial date of November 8, 1972 was set for

respondent's case. On November 9, a mistrial was declared

and the case was reset for December 7, 1972. The case was

subsequently rescheduled for February 26, 1973. On

February 26, the respondent entered < plea of guilty to the

charge of accessory after a felony murder and was

sentenced to a term of 21 years, to be served consecutive to

his previously imposed 21 year sentence.

State post-conviction relief was denied by the trial

court and by the Arkansas Supreme Court in 1978.

Respondent's petition for writ of habeas corpus was denied

by the United States District Court for the Eastern District

of Arkansas on September 16, 1981. On May 6, 1983, the

District Court's decision was overturned by the Eighth

Circuit Court of Appeals. The Eighth Circuit ordered

specific performance of the proposed plea agreement in

spite of the fact that there had been no showing that the

accused had relied to his detriment on the proposed offer.

5

REASONS FOR GRANTING THE WRIT

Rule 17 of the Rules of the United States Supreme

Court sets out the considerations governing review on

certiorari. Among such considerations are: (a) When a

federal court of appeals has rendered a decision in conflict

with the decision of another federal court of appeals on the

same matter; and...(c) Whena... federal court of appeals

has decided an important question of federal law

(presumably including the federal constitution) which has

not been, but should be settled by this Court... Petitioner

submits that the question presented herein merits review

by this Court. As of the date of the decision of the Eighth

Circuit Court of Appeals in this case, only two courts of

appeals had passed upon the question of whether an accused

had a constitutional right to specific enforcement of a plea

proposal in the absence of a showing of detrimental reliance.

Those two courts had reached differing conclusions. See

Cooper v. United States, 594 F.2d 12 (4th Cir. 1979) and

Government of Virgin Islands v. Scotland, 614 F.2d 360 (3d

Cir. 1980).

Petitioner further submits that although this Court has

not yet passed upon the specific question presented herein,

the decision below appears to run afoul of this Court's

decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct.

495, 30 L.Ed.2d 427 (1971).

In overturning the decision of the district court, the

Eighth Circuit Court of Appeals acknowledged that the plea

proposal (21 years concurrent) was conveyed to

respondent's counsel on Friday; that on the following

Monday, respondent attempted to accept the plea proposal;

that the prosecuting attorney indicated that a mistake had

been made and the sentence must be consecutive rather

than concurrent; that the respondent did not enter a plea of

guilty in reliance on the proposal; and that the respondent

had not performed any specific action in reliance upon the

proposal. See Appendix “A”, pp. 89 and f.n.8. The court

6

below found that the respondent had relied upon the plea

proposal only to the extent that he had considered the

terms offered, agreed to accept the proposal, and

communicated his willingness to plead guilty to the

prosecuting attorney. See Appendix “A” at p. 10. The

Eighth Circuit, relying upon the decision of the Fourth

Circuit in Cooper v. United States, supra, concluded that

the respondent's constitutional expectation that the

government would honor its proposal was violated and,

although there had been no demonstration of prejudicial

effect or detrimental reliance, concluded that the

respondent was entitled to specific enforcement of the

proposal.

Petitioner does not take issue with the assertion by the

court below that there must be fairness in plea bargaining.

Indeed, since the decision of this Court in Santobello v. New

York, supra, fairness in plea bargaining has been viewed as

having constitutional dimensions. However, it also appears

clear from reading the Santobello decision that reliance

upon the plea proposal is a necessary prerequisite to

specific enforcement thereof.

In rendering Its opinion in Santobello, supra, this

Court wrote: “When a plea rests in significant degree on a

promise or agreement of the prosecutor so that it can be

said to be part of the inducement or consideration, such

promise must be fulfilled.” 404 U.S. at p. 262. The crux of

the Santobello decision seems to be that although an

accused has no right to have a plea accepted, once a bargain

is struck and the accused detrimentally relies upon such

agreement, the accused has the right to hold the prosecutor

to his end of the bargain.

In Virgin Islands v. Scotland, supra, the Third Circuit

adopted the Santobello rationale of requiring a showing of

detrimental reliance upon the plea proposal as a

prerequisite to ordering specific performance in a case in

which the government attempted to add additional con-

7

ditions to a plea proposal after the accused indicated his ac-

ceptance, but before the entry of a guilty plea. A number of

state courts appear to follow this same rationale. Consider:

People v. Barnett, 113 Cal. App. 3d 563 (1981) Shields »v.

Delaware, 374 A.2d 816 (1977); cert. denied 434 U.S. 893; State

v. Reasbeck, 359 So.2d 564 (Fla. 1978); State v. Edwards, 279

N.W.2d 9 (Iowa 1979); People v. Heiler, 79 Mich. App. 714,

262 N.W.2d 890 (1977); State v. Collins, 300 N.C. 142 (1980);

State v. Wheeler, 95 Wash.2d 799 (1981); State v. Beckes,

100 Wis. 2d 1 (1980). The decision in Virgin /slands v.

Scotland, is based upon sound constitutional principles of

due process. 614 f. 2d at p. 365.

In Cooper v, United States, supra, the case relied upon

by the court below, the Fourth Circuit strayed from the

detrimental reliance requirement and concluded that under

appropriate circumstances, a constitutional right may arise

before any technical “contract” has been formed, and on the

basis of expectations reasonably formed in reliance upon

the honor of the government. 594 F.2d at p. 18. Closely

intertwined into the Cooper decision was the theory that a

defendant's confidence in his counsel's capability and

professional responsibility may be jeopardized when the

government attempts to, through defendant's counsel,

change or retract a proffered plea agreement. Nothing in

the opinion of the court below indicated that the change in

the proposed plea agreement in the present case resulted in

either a loss of confidence in the accused's attorney or in

any way hindered defense counsel in his ability to defend

the respondent.

accept the/plea proposal amounted to a sudden revelation of

his invofvement in the crime which was previously unknown

or unproven. It is not to be forgotten that the respondent

had previously been convicted of the murder for which he

was being retried; and that he had likewise been convicted

of burglary and assault with intent to kill a second victim in

connection with the same incident. Under these circum-

ihe it be said that the respondent's willingness to |

8

stances, a willingness to “plead out” for no additional time

in the penitentiary hardly amounts to a damaging

admission.

Although the decision of the court below relies heavily

upon the duty of the government to negotiate with

scrupulous fairness, there is nothing in the opinion to

indicate that the government in the present case was

anything but scrupulous. The evidence tended to show that

an honest mistake had been made by the prosecuting

attorney.

A period of six months time passed from the date of

respondent's arraignment on charges of murder until he

ultimately entered a guilty plea to the charge of accessory

after felony murder. During this six month period, a state of

confusion existed for approximately 72 hours — Friday until

Monday—in connection with a mistaken plea proposal.

Approximately four months after the modification of the

proposal to correct the mistake, the respondent entered a

plea of guilty. The record is void of any evidence to indicate

that during the 72 hours in which the mistaken offer stood,

the respondent in any way relied upon the proposal to his

detriment.

Faced with these facts, the Eighth Circuit Court of

Appeals confronted two conflicting lines of authority: one

required a showing of detrimental reliance in order to

specifically enforce the plea proposal; the other allowed

specific enforcement based upon the accused's expectation

in the honor of the government. The court below chose the

latter authority, thereby ruling that in the absence of

evidence to demonstrate detrimental reliance by the

accused and in the absence of evidence of bad faith or

unscrupulous conduct on the part of the government, a

mistaken term in a plea proposal which stood for 72 hours in

a six month period may be specifically enforced as a matter

of constitutional right.

9

The circuits remain split in ruling upon the question

presented herein. The issue presented is one of major

constitutional import which merits the attention of this

Court. Petitioner respectfully requests that this Court

examine the issue raised herein and resolve once and for all

the question presented.

10

CONCLUSION

The question presented herein falls squarely within the

considerations governing review as set out in Rule 17 of the

Rules of the United States Supreme Court. This issue is of

major constitutional import and the resolution thereof will

have far reaching effect. Petitioner therefore priuys that

_~this Court consider the issue raised herein and lay to rest

the conflict among the circuits.

Respectfully submitted,

STEVE CLARK

Attorney General

By: DENNIS R. MOLOCK

Special Assistant Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

Attorneys for Petitioner

11

CERTIFICATE OF SERVICE

I, Dennis R. Molock, hereby certify that a copy of the

foregoing Petition has beer served upon the respondent

herein by placing a copy of same in the U.S. Mail, postage

paid, addressed to Richard Quiggle, Attorney at Law, 904

West Second St., P.O. Box 2651, Uittle Rock, Arkansas this

18th day of August, 1983.

/s|/ DENNIS R. MOLOCK

A-l

APPENDIX “A”

United States Court of Appeals

For the Eighth Circuit

May 9, 1983

Attorney General

of

Arkansas

No, 81-2181

George Johnson, *

*

Appellant, °

* Appeal from the United

* States District Court

* for the Eastern District

James Mabry, Commissioner, * of Arkansas

Arkansas Department of Correction*

a

Appellee. °

Vv.

Submitted: October 15, 1982

Filed: May 6, 1983

Before LAY, Chief Judge, McMILLIAN and JOHN R.

GIBSON, Circuit Judges.

McMILLIAN, Circuit Judge.

George Johnson appeals from a final order entered in the

District Court for the Eastern District of Arkansas dismissing

A-2

his petition for writ of habeas corpus, 28 U.S.C. §2254. For

reversal petitioner argues that the district court erroneously

refused (1) to grant specific performance of a proposed plea

bargain and (2) to shift the burden of proof to the state to show

that petitioner's ineffective assistance of counsel was not

prejudicial. For the reasons discussed below, we reverse and

remand.

Petitioner's case, like those of many other state habeas

petitioners, has become procedurally complicated. For a

statement” of the facts underlying petitioner's criminal

convictions, see Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600

(1972). According to the evidence presented by the state, in

May 1970 petitioner and Eddie Jackson broke into the house of

W.A. Siscoe with the intent to commit burglary. Mr. and Mrs.

Siscoe and their daughter Vicki arrived home in the middle of

the burglary. Vickie was the first person to enter the house; she

confronted the intruders and screamed. Mr. Siscoe heard

Vicki's screams and entered the house. One of the intruders

threatened to kill him and grabbed Vicki and used her to shield

his escape from the house. At this point shots were exchanged

by one of the intruders and Mr. Siscoe. Vicki was fatally

wounded, and petitioner and Mr. Siscoe were wounded.

Petitioner was convicted of first degree murder for the

death of Vicki Siscoe and sentenced to life imprisonment.

Petitioner was subsequently convicted of burglary and assault

with intent to kill on June 15, 1971; these charges arose out of

the same incident. Petitioner was sentenced to 21 years

imprisonment for the burglary and 12 years for the assault, to

be served concurrently. On July 17, 1972, petitioner's murder

conviction was reversed by the Arkansas Supreme Court for

failure to give a requested jury instruction and remanded for a

new trial. Johnson v. State, 482 S.W.2d at 606.

The state trial court appointed Harold Hall of the

public defender's office to represent petitioner. The

following facts about the plea bargaining negotiations are

not disputed. On Friday, October 27, 1972, the prosecuting

A3

attorney contacted Hall and proposed a 21-year sentence, to

be served concurrently with petitioner's burglary and

assault sentences, in exchange for a guilty plea to the

charge of accessory after a felony murder. Hall told

petitioner the terms the next day, Saturday, October 28,

1972. Petitioner agreed to accept the plea proposal. The

following Monday, October 30, 1972, Hall called the

prosecuting attorney and accepted the plea bargain.

However, the prosecuting attorney told Hall that a mistake

had been made and withdrew the proposal. The prosecuting

attorney then proposed a recommendation of a 21-year

sentence to be served consecutively to petitioner's other

sentences. Apparently Hall did not respond to this second

proposal and assigned the case to another public defender,

John Achor.

Petitioner proceeded to trial November 8, 1972. On

November 8, 1972, the trial court declared a mistrial,

evidently on the ground of prejudicial newspaper publicity,

excused the jury and rescheduled the trial for December 7,

1972. The trial was later continued to February 26, 1973,

when petitioner entered a guilty plea to the charge of

accessory after a felony murder and was sentenced to 21

years imprisonment, to be served consecutively to the

burglary and assault sentences.

Petitioner sought post-conviction relief in the state

courts on the grounds of mistake and ineffective assistance

of counsel. The state trial court denied relief and its decision

was affirmed by the Arkansas Supreme Court in an

unpublished opinion, Johnson v. State, No. CR-78-18 (Ark.

June 5, 1978). Petitioner then filed the petition for writ of

habeas corpus, alleging mistake, coercion and ineffective

assistance of counsel. Petitioner argued that he did not

understand the nature and consequences of the plea bargain

and pled guilty only because his defense attorney

threatened him with life imprisonment if he went to trial.

Petitioner also argued that he received ineffective

assistance of counsel because his defense attorney did not

A-4

discuss the case with him until ten minutes before trial,

failed to interview witneses and did not explain the nature

and consequences of the plea bargain.

The district court referred the petition to a magistrate

for an evidentiary hearing and report and recommendation.

Petitioner, Hall and Achor testified at the first evidentiary

hearing in August 1979. At this point petitioner raised an

additional constitutional issue, alleging that the prosecuting

attorney's withdrawal of the plea bargain proposal after

petitioner's acceptance was unconstitutional. The

magistrate held supplemental evidentiary hearings in

October and December 1980, at which petitioner, Lacey

Gordon' and Benny Kelley’ testified.

The district court adopted the magistrate's report and

recommendation, Johnson v. Mabry, No. PB-C-78-139 (E.D.

Ark. Sept. 17, 1981), finding that petitioner's mistaken

belief about the sentence he would receive if he pled guilty

was not reasonably justified,’ that petitioner's guilty plea

was not induced by threats or misrepresentations by

‘Lacey Gordon is a friend of petitioner's and one of three persons

petitioner claims were with him on the night of the burglary and shooting.

*Benny Kelley is a friend of petitioner's and one of three persons

petitioner claims were with him on the night of the burglary and shooting.

See Griffith v. Wyrick, 527 F.2d 109, 113 (8th Cir. 1975); United

States ex rel Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972), cert.

denied, 410 U.S. 945 (1973). Here, the record contains statements made by

the state trial judge before acceptance of the guilty plea that petitioner

“agreed to take twenty-one years on top of the twenty-one he's got [for

the burglary and assault] which will make a total of forty-two years.” The

court also credited the testimony of Achor, who testified that he discussed

the nature and consequences of the plea bargain with petitioner,

specifically explained to petitioner that the proposed plea bargain .

sentence represented a total sentence of 42 years and even attempted to

compare the possibility of parole for a 42-year sentence with that of a life

sentence.

|

}

A-5

defense counsel,‘ and that petitioner was not prejudiced by

ineffective assistance of counsel.’ The court also rejected

“The court concluded that petitioner's allegation of a mistaken

belief about the sentence of the guilty plea (that petitioner voluntarily

pled guilty but thought the sentence was for 21 years concurrent) was

logically inconsistent with his allegation of coercion (that defense counsel!

threatened that petitioner would be convicted and sentenced to life if he

went to trial). Slip op. at 6. We also note that defense attorney Achor

testified that after reviewing the transcript of petitioner's first trial and

the opinion of the Arkansas Supreme Court and interviewing Siscoe and

several of the police witnesses, he believed that if petitioner went to trial,

he would be convicted and would probably receive a life sentence and that

he told this to petitioner.

‘The court found that petitioner's defense attorney failed to

attempt to locate and interview Eddie Jackson, Lacey Gordon and Benny

Kelley. E.g., Ford v. Parratt, 638 F.2d 1115, 1117 (8th Cir.) (failure to

investigate rumor), vacated on other grounds, 454 U.S. 934 (1981);

Morrow v. Parratt, 574 F.2d 411, 413 (8th Cir. 1978) (failure to interview

witnesses), Although Achorvtestified that petitioner never mentioned

Gordon or Kelley, the court noted that petitioner testified at the first

trial that he had been riding around in a car with Jackson, Gordon and

Kelley that night and that Gordon and Kelley had dropped Jackson and

petitioner off in front of the Siscoe house. Both Gordon and Kelley

testified at the supplemental evidentiary hearings that they knew

petitioner, were not involved with petitioner or Jackson on the night of

the shooting and only heard about the incident “on the street.” The

record also indicates that Jackson, the individual who broke into the

Siscoe house that night and who, according to petitioner, fired the gun,

was in the state penitentiary at the time of petitioner's retrial and guilty

plea. It appears, however, that Jackson was released on parole in 1977

and is currently wanted by state authorities for violating the conditions

of his parole. Jackson has been unavailable as a witness.

The court concluded that defense counsels failure to attempt to

locate and to interview Gordon and Kelley did not prejudice petitioner's

ability to make an intelligent and voluntary plea. Slip op. at 9; see Ford v.

Parratt, 638 F.2d at 1118; United States v. Davis, 616 F.2d 365, 366 (8th

Cir. 1980) (per curiam); Nevels v. Parratt, 596 F.2d 344, 346 (8th Cir.), cert.

denied, 444 U.S. 859 (1979). Although the court agreed that the

unavailability of Jackson was a changed circumstance beyond petitioner's

control, the court refused to shift the burden of proof to the state to show

the absence of prejudice in defense counsel's failure to attempt to locate

and interview Jackson. Slip op. at 9, citing McQueen v. Swenson, 498 F.2d

207, 220 (1974). The court concluded that it was unreasonabie to assume

that Jackson's testimony would have differed from that of Gordon or

Kelley, have been helpful to petitioner, or have influenced his decision to

plead guilty.

A-6

petitioner's claim that the prosecuting attorney's

withdrawal of the plea bargain proposal was

unconstitutional.® Slip op. at 11-12, citing Government of

Virgin Islands v. Scotland, 614 F.2d 360, 363-65 (3d Cir.

1980) (Scotland). The district court dismissed the petition

and this appeal followed. On appeal petitioner argues that

(1) he has a constitutional right to enforcement of the plea

bargain proposal and (2) because of the changed cir-

cumstances beyond petitioner's control, the court should

have shifted the burden of proof to the state on the question

of the absence of prejudice. Because we agree with

petitioner's first argument, we do not reach the burden of

proof question. See note 5 supra

In 1971 the Supreme Court recognized that the

“disposition of criminal charges by agreement between the

prosecutor and the accused, sometimes loosely called ‘plea

bargaining,’ is an essential component of the administration

of justice.” which, if “[p}roperly administered, . . . is to be

encouraged.” Santobello v. New York, 404 U.S. 257, 260

(1971); see also Brady v. United States, 397 U.S. 742, 751-52

(1970) (discussing advantages of plea bargained dispositions

for criminal justice administration). The Court's approval of

plea bargaining “presuppose[d] fairness in securing

agreement between an accused and a _ prosecutor.”

Santobello v. New York, 404 U.S. at 261. The Court held

that “[t]his phase of the process of criminal justice, and the

adjudicative element inherent in accepting a plea of guilty,

must be attended by safeguards to insure the defendant

what is reasonably due in the circumstances.” Jd. at 262.

The source of the fairness requirement is constitutional,

presumably substantive due process, see Cooper v. United

States, 594 F.2d 12, 15-16 (4th Cir. 1979) (Cooper); see also

*As noted by the court below, petitioner did not raise this issue in

the post-conviction proceedings in Arkansas state courts. However, the

Arkansas courts will not entertain successive petitions for relief, at least

not in noncapital cases. Therefore, the court concluded that petitioner

had exhausted Wis available state remedies. Slip op. at 10. We agree.

A-7

Santobello v. New York, 404 U.S. at 266-67 (Douglas, J.,

concurring) (specifically noting that Santobello is a state

case over which the Supreme Court has no supervisory

jurisdiction and recognizing a constitutional basis for the

holding); Westen & Westin, A Constitutional Law of

Remedies for Broken Plea Bargains, 66 Calif. L. Rev. 471,

474-75 n.10, 476 n.16 (1978) (hereinafter Broken Plea

Bargains); Comment, Specific Enforcement to Ensure Due

Process in Plea Bargaining, 21 Wm. & Mary L. Rev. 521

(1979), and mandates that ‘the most meticulous standards of

both promise and periormance must be met by prosecutors

engaging in plea bargaining.” Correale v. United States, 479

F.2d 944, 947 (1st Cir. 1973); see United States v. Bowler,

585 F.2d 851, 854 (7th Cir. 1978) (“to protect the plea

bargaining defendant from overreaching by the prosecutor

and to insure the integrity of the plea bargaining process”);

Palermo v. Warden, 545 F.2d 286, 296 (2d Cir.), cert. denied,

431 U.S. 911 (1976); Geisser v. United States, 513 F.2d 862,

863 (5th Cir. 1973); cert. denied, 450 U.S. 1031 (1981)

(following several remands).

In general the legal analysis in plea bargaining cases

has relied heavily upon contract law principles, in particular

emphasizing contract formation (offer and acceptance),

breach, estoppel (entry of guilty plea or detrimental

reliance), and remedies (rescission or specific performance).

See, e.g., Scotland, 614 F.2d at 364;’ Cooper, 594 F.2d at 16

(citing cases from Fourth Circuit); People v. Calloway, 29

Cal. 3d 666, 631 P.2d 30, 175 Cal. Rptr. 596 (1981) (bank);

People v. Kaanehe, 19 Cal. 3d 1, 559 P.2d 1028, 136 Cal.

Rptr. 409 (1977); Shields v. State, 374 A.2d 816, 819 (Del.),

cert. denied, 434 U.S. 893 (1977); see generally Broken Plea

Bargains, 66 Calif. L.Rev. at 525. Other cases, however,

The bargaining process has often been analogized to contract

principles, and plea agreements are often likened to unilateral

contracts — consideration is not given for the prosecutor's promise until

the defendant actually enters his (or her] plea of guilty.” Government of

Virgin Islands v. Scotland, 614 F.2d 360, 364 (3d Cir. 1980) (Scotland)

(footnote omitted).

A-8

have recognized that contract law is useful only as an

analogy. See United States v. Calabrese, 645 F.2d 1379,

1390 (10th Cir.) (analogy to contract law is not determinative

in plea negotiations), cert. denied, 451 U.S. 1018 (1981);

Cooper, 594 F.2d at 1°-20; United States ex rel Selikoff v.

Commissioner of Correction, 524 F.2d 650, 654 (2d Cir. 1975),

cert. denied, 425 U.S. 951 (1976); cf. Brewer v. Williams, 430

U.S. 387, 401 n.8 (1977) (“We do not deal here with notions’ of

offer, acceptance, consideration, or other concepts of the

law of contracts. We deal with constitutional law.”); Roe v.

United States Attorney, 618 F.2d 980, 981 (2d Cir.) (per

curiam) (court of appeals will not use doctrine of actual

authority in context of promises made by government

officials), cert. denied, 449 U.S. 856 (1981); United States v.

Bowler, 585 F.2d at 854 ("A plea agreement is not an

appropriate context for the Government to resort to a

rigidly literal approach in the construction of language.”)

See generally Broken Plea Bargains, 66 Calif. L. Rev. at

527-28 (proposing theory of “constitutional contracts”).

The analogy between contracts and plea agreements

works well in the usual plea bargain case, which involves

the entry of a guilty plea, or the performance of some other

action, following plea negotiations and an agreement about

specific terms. E.g., United States v. Runck, 601 F.2d 968,

970 (8th Cir. 1979) (on petition for rehearing) (following

entry of negotiated plea, dispute arose over whether part of

sentence was within plea agreement accepted by district

court). Traditional contract principles, however, are of little

guidance in a plea proposal case like the present one. Here,

as in Cooper and Scotland, we are confronted with a fact

situation that falls short of a plea bargain.’ Petitioner did

not enter a plea of guilty in court and has not per formed any

specific action in reliance upon the plea bargain. Compare

Palermo v. Warden, 545 F.2d at 290 (defendants offered

"Here, the prosetuting attorney proposed the 21-year concurrent

sentence on Friday; the defense attorney discussed the plea proposal with

petitioner on Saturday and petitioner agreed to accept the plea proposal

A9

that day. The defense attorney contacted the prosecuting attorney on

Monday and accepted the plea proposal, but the prosecuting attorney

then withdrew the plea proposal, explaining only that a mistake had been

made. In Cooper the relevant events occurred on the same day: about 11

a.m. the prosecuting attorney and defense attorney discussed the terms

of the plea proposal; the defense attorney immediately discussed the plea

proposal with the defendant, who agreed to accept; about 12 p.m. the

defense attorney attempted to contact the prosecuting attorney; about

1:30 p.m. the prosecuting attorney's superior reviewed the plea proposal

and instructed the prosecuting attorney to withdraw the plea proposal

before the defense attorney accepted. 594 F.2d at 15. In Scotland the time

interval is greater, but the facts are essentially the same. 614 F.2d at 363.

On November 11 the prosecuting attorney made its plea proposal; the

terms were communicated to the defendant on November 29 and

defendant agreed to accept them at that time; the prosecuting attorney,

however, added a new condition to the plea proposal; the defendant

moved for specific performance of the initia! plea proposal. /d at 361-62.

Present in each case are the following factors that the Cooper court

considered crucial to the finding of a constitutional right and violation:

[1] the proposal was specific and unambiguous in form, and [2]

was made without any reservation related to a superior's

approval or otherwise; [3] its content was reasonable in context;

[4] it was made by a prosecutor with apparent (and probably

actual) authority at the time; [5] it was communicated promptly

to the defendant so that no question of staleness was involved; [6]

the defendant assented promptly and unequivocally to its terms,

indicated .. . assent to [defense] counsel, and was entitled so /ar

as the record shows to assume that its communication to the

government would consummate the plea agreement; [7] defense

counsel did in fact within a matter of a few hours [or within

several days] communicate defendant's acceptance to the

government, by sheer fortuity being told of the government's

“withdrawal” before [defense counsel] could vocalize

[defendant's] “acceptance”; and finally, [8] the reason for the

attempted withdrawal had nothing to do with extenuating

circumstances affecting the government's or any public interest

that were unknown when the proposal was extended, but

[apparently] lay simply in a superior’s second-guessing of a

/ subordinate’s judgment.

594 F.2d at 19. Cf. People v. Calloway, 29 Cal. 3d 666, 631 P.2d 30, 175 Cal.

Rptr. 596, 603 n.3 (1981) (bank) (Bird, C.J., dissenting) (factors which favor

the prosecution's choice of remedy for broken plea bargains: fraud by the

defendant, additional information developed later and changed

circumstances); People v. Johnson, 10 Cal. 3d 895, 519 P.2d 604, 112 Cal.

Rptr. 556 (1974) (bank) (defendant comtealed true name and past criminal

record).

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reduced sentences and early parole in exchange for return

of stolen jewelry); See United States v. Bowler, 585 F.2d at

852 (plea agreement provided for dismissal of counts and

recommended sentence if defendant cooperated in further

prosecutions and other investigations). However, petitioner

did rely on the plea proposal to the extent that he con-

sidered the terms offered, agreed to accept the plea

proposal and communicated his willingness to plead guilty

to the prosecuting attorney.

In Cooper the Fourth Circuit found “the constitutional

right to ‘fairness’ [set forth in Santobello] to be wider in

scope than that defined by the law of contract” and

recognized “a constitutional right to enforcement of plea

proposals {which] may arise before any technical ‘contract’

has been formed, and on the basis alone of expectations

reasonably formed in reliance upon the honor of the

government in making and abiding by its proposals.” 594

F.2d at 16-18 (footnotes omitted). The Cooper court based

this constitutional right on substantive due process: it is

simply unfair to permit the government in effect to go back

on its word. Jd. at 18-19; cf. Broken Plea Bargains, 66 Calif.

L. Rev. at 513 (arguing that Santobello can be understood as

extending constitutional protection to the personal

expectations created in defendants by plea agreements

with the state). The Cooper court also relied upon the sixth

amendment right to effective assistance of counsel:

Because prosecutors are required to conduct plea

negotiations through defense counsel, the

government's positions and communications in plea

discussions are necessarily mediated through his [or

her] counsel... . To the extent that the government

attempts through defendant's counsel to change or

retract positions earlier communicated, a

defendant's confidence in his [or her} counsel's

capability and professional responsibility, as well as

the government's reliability, are necessarily

jeopardized and the effectiveness of counsel's

assistance easily compromised.

A-1l

594 F.2d at 18-19 (footnote omitted). The holding in Cooper

was very narrow:

When... a proposal — specific, unambiguous and not

unreasonable on its face—is offered by the

government to a defendant through his [or her]

counsel, constitutional fairness requires that it be

fulfilled if within a reasonable time the defendant

unequivocally [agrees to accept] it, and unless in the

interval extenuating circumstances affecting the

propriety of the proposal that were unknown to and

not reasonably discoverable by the government

when the proposal was made have supervened or

become known.

Id. at 19; see note 8 supra (listing specific factual

considerations relied upon by court). Cf Comment, 21 Wm.

& Mary L. Rev. at 536-39 (arguing procedural due process as

preferable constitutional basis for Cooper holding).

The Third Circuit in Scotland rejected the Fourth

Circuit’s due process analysis on the grounds that it not

only interfered with prosecutorial discretion’ and

discouraged pleas,'® but, more importantly, was

unnecessary because, in the absence of detrimental

*(Bjinding the prosecutor to his [or her] original plea [proposal] does

interfere with his [or her] discretionary functions, ie., determining what

he [or she] feels is fairest in light of the defendant's circumstances, the

government's resources, and the statute involved.” Scotland, 614F.2d at

364 (footnote omitted).

‘9 [Prosecutors] will be reluctant to offer to bargain until they are

very sure that they want to be bound by the offer. The fact that

the government would have to be very careful about all the

elements of the offer certainly is not detrimental. However, if

the result of the [Cooper] rule is either a delay in bargaining or

fewer plea proposals, there is also a consequent diminished

savings of prosecutorial and judicial resources. Moreover, the

advantages of quick disposition and quick punishment are also

diminished.

Id.

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reliance, a jury trial is an adequate remedy.'' 614 F.2d at

364-65. The Third Circuit also found no implication of the

sixth amendment right to effective assistance of counsel in

the government's withdrawal of the plea propoosal.’

We believe that the Cooper analysis should be

followed. This approach recognizes the limited usefulness of

contract principles in the plea bargaining context. Plea

bargaining involves more than commercial law. Because the

entry of guilty plea constitutes a waiver of fundamental

constitutional rights, Santobello v. New York, 404 U.S. at

264 (Douglas, J., concurring), plea bargains are not just

contracts in which the prosecution exchanges the dismissal

or reduction of charges and recommendations on sentencing

for the defendant's guilty plea. Imposing upon the

government the duty to conduct plea bargaining with

scrupulous fairness, which, in the present case, would

'' [The fundamental right to trial by jury] would be belittled if we

held it to be an insufficient “remedy” or result for a defendant

who has not been induced to rely on the plea to his detriment.

The prosecutor is under no duty to plea bargain— if no offer is

made, the defendant is entitled to a trial. There is no rational

basis for holding, in esence, that a trial is sufficient for the

defendant who has not been offered a plea and insufficient for

the one who has.

Id. at 365.

'? We note that in [all] plea negotiations, even when they do not

involve the withdrawal of a plea proposal, there is a possibility

that the defendant may lose faith in his [or her] attorney when,

for example, the government fails to offer any plea proposal or

offers only an unfavorable one. This factor, without more, is not

enough to violate the defendant's sixth amendment right. The

appropriate focus for determining whether the right to effective

counsel has been violated is on defense counsel and his [or her]

performance rather than an defendant's perception of defense

counsel.

Id. at 363 (footnote omitted). Of course, the court in Cooper relied upon

the sixth amendment right to effective assistance of counsel as another

source of “the government's fundamental duty to negotiate with

scrupulous fairness in seeking guilty pleas.” 594 F.2d at 19.

A-13

require the government to honor the terms of its plea

proposal, is consistent with the “fairness” requirement set

forth in Santobello. As noted in Cooper, “constitutional

decisions cannot be made to turn in favor of the government

on the fortuities of communications or on a refusal to accord

any substantive value to reasonably induced expectations

that government will honor its firmly advanced proposals.”

594 F.2d at 17.

We do not agree that the Cooper analysis improperly

restricts prosecutorial discretion. The government does not

have to initiate or participate in plea bargaining. See

Weatherford v. Bursey, 429 U.S. 545, 561 (1977). However,

once the government does so, it must negotiate with

“scrupulous fairness.’ Cooper does not restrict the

particular terms that the government may propose during

plea negotiations; the government may make conditional

proposals and may withdraw or modify outstanding

proposals that have not been accepted or rejected after a

reasonable period of time. Cooper does, however, require

the government to honor whatever terms it has proposed if

they are promptly and unequivocally agreed to by the

defendant. In practice, this means that government

attorneys may have to become better organized «nd

scrutinize plea proposals before discussing them with

defense counsel. See, 594 F.2d at 20. Further, requiring the

government to conduct plea negotiations in a more orderly

manner should not necessarily discourage guilty pleas. A

more orderly method should reduce arbitrary action

and promote greater consistency in the disposition of

similar cases, thus encouraging defendants to enter pleas.

See Comment, 21 Wm. & Mary L. Rev. at 536-38. Moreover,

Cooper expressly contemplates that the government can

withdraw a plea proposal or reopen plea negotiations, even

after the plea proposal has been accepted by the defendant,

if the government demonstrates that the plea proposal was

based upon inaccurate or incomplete information, for

example, if the defendant misrepresents or conceals

relevant information or there is additional information that

A-l4

was not reasonably discoverable at the time the plea

proposal was offered. 594.F.2d at 19.

Nor can we agree that a jury trial is an adequate

remedy in cases like the present one. In terms of the contract

law analogy, trial does not provide the defendant with the

benefit of the bargain, that is, jury trial will not protect the

defendant's reasonable expectations that the government

will honor its proposals. Nor does the alternative of jury

trial really address the conduct of the government. We are

concerned here with what the Fourth Circuit in United

States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972) (banc),

cert. denied, 417 U.S. 933 (1974) (following remand),

characterized as “the honor of the government” and “public

confidence in the fair administration of justice.” Here, the

government in effect promised to recommend a specific

sentence if petitioner agreed to plead guilty to a specific

charge. If we were to hold that jury trial is an adequate

remedy in these circumstances, we would have no effective

way to discourage the potential abuse of the plea bargaining

process. We will not allow the government to take

advantage of petitioner's acceptance of the plea proposal, in

the absence of any change in the underlying circumstances,

and to exploit petitioner's decision to plead guilty by

further hard bargaining and by recommending a longer

sentence. Compare Bordenkircher v. Hayes, 434 U.S. 357,

360-65 (1978) (no violation of due process by prosecutor who

carries out threat made during plea negotiations to have

accused reindicted on more serious charges on which he is

plainly subject to prosecution if he does not plead guilty to

offense with which he was originally charged).

In sum, we stress that our holding, like that in Cooper,

is very narrow and dependent upon the specific facts. See

note 8 supra. The appropriate remedy is a difficult problem

in plea bargain cases. E.g., Santobello v. New York, 404 U.S.

at 263 (specific performance or withdrawal of plea); Jd. at

266-67 (Douglas, J., concurring); Correale v. United States,

479 F.2d at 949-50; see also Broken Plea Bargains, 66 Calif.

A-15

L. Rev. at 474-76. Here, petitioner seeks enforcement of the

plea proposal. Accordingly, we reverse the dismissal of the

petition for habeas corpus and remand the case to the

district court with directions to grant the writ of habeas

corpus unless the state resentences petitioner in accordance

with the concurrent sentence plea proposal within 120 days

of the filing of this opinion.

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent. I believe the better view is that

detrimental reijiance is necessary to enforce an offer for a

plea bargain. Government of Virgin Islands v. Scotland, 614

F.2d 360 (3d Cir. 1980). My view and that in Scotland is not

based upon contract principles. As stated in Scotland,

detrimental reliance implicates due process guarantees. 614

F.2d at 365. The court in Scotland, discussed Santobello v.

New York, 404 U.S. 254 (1971), and reasoned that Santobello

recognized a basic estoppel principle. In Santobello the

guilty plea had been entered on June 16, 1969, in reliance on

an offer that the prosecuting attorney would not

recommend a sentence. It was only when the defendant

appeared before a different judge for sentencing on

January 9, 1970, that he learned that the agreement had

been broken. Santobello thus dealt with a situation in which

there had been detrimental reliance.

I believe that the majority has adopted a chameleon

approach to reliance. The majority first states that

petitioner “has not performed any specific action in reliance

upon the plea bargain.” Slip op. at 09-10. It continues

“[hjowever, petitioner did rely on the plea proposal to the

extent that he considered the terms offered, agreed to

accept the plea proposal and communicated his willingness

to plead guilty to the prosecuting attorney.” Slip op. at 10.

It is abundantly clear that the majority has found no

detrimental reliance in this case, and its holding requires no

detrimental reliance. The majority specifically adopts the

A-16

reasoning in Cooper v. United States, 594 F.2d 12 (4th Cir.

1979), as opposed to the approach in Scotland. Scotland

requires a showing of detrimental reliance to enforce a plea

offer, but Cooper makes no such requirement. Accordingly,

the extended discussion adopting Cooper is unnecessary

unless the majority really is finding that there was no

detrimental reliance in this case. If there was detrimental

reliance, both Scotland and Cooper would support

enforcement of the plea offer.

The magistrate in his report and the district court in its

order adopting the report concluded that no detrimental

reliance was present. Immediately after a lengthy quotation

from Scotland underscoring the distinction that Cooper

would allow specific performance of a plea offer where there

was no detrimental reliance, the magistrate stated that the

case was factually similar to Cooper. The petition for habeas

corpus as originally filed makes no reference to detrimental

reliance, nor does the motion to amend filed by petitioner's

counsel. Vetitioner’s counsel, in his objections to the

proposed findings and conclusions details a finding of

detrimental reliance based upon counsel's lack of

preparedness to go to trial November 8, 1972. This

argument does not bear upon the issue before us, however,

as the November 8 trial resulted in a mistrial and

petitioner's guilty plea was not entered until February 26,

1973.

Cooper enumerated several limitations on its holding.

Among the qualifications stated in Cooper is that the plea

offer be reasonable in context. Johnson had originally been

convicted of first degree murder and sentenced to life

imprisonment. The conviction on this charge was set aside

and the guilty plea now before us was later entered to the

lesser charge of “accessory after a felony murder.”

Johnson's conviction of burglary carried a twenty-one year

sentence and his assault with intent to kill conviction

carried a twelve year concurrent sentence. I question

whether we can conclude it is reasonable for the prosecutor

A-l7

to offer a concurrent twenty-one year sentence on the

murder charge, or accessory after a felony murder charge,

which would result in defendant's receiving the same

sentence for murder, burglary and assault that he had

received for burglary and assault alone. There is no

explanation in the record as to the nature of the mistake

that was the reason for the withdrawal of the plea offer. We

can only speculate that the prosecutor may have intended to

offer a consecutive twenty-one year sentence but

mistakenly said “concurrent”. That there was a mistake in

making the offer in this case, however, is further distinction

from the limited circumstances in Cooper, which involved

the overruling of a subordinate by a superior in the United

States Attorney's office.

~

Cooper stressed the significance of this distinguishing

circumstance in the following statement:

This necessa@{ly means that once presented,

such a proposal m¥ not be withdrawn in the face of

proffered acceptance for no other reason than thai a

superior disagrees with an apparently authorized

subordinate’s judgment in making it.

Cooper v. United Staes, 594 F.2d at 19.

While Cooper is careful to make plain the factual

limitations on the scope of its holding and the majority here

seems to do so, the net result in this case is simply to

expand the Cooper rule to an unacceptable extreme.

The majority also holds that a jury trial is an

inadequate remedy where a plea bargain offer is

withdrawn.’ I find more persuasive the reasoning in

Scotland that the great constitutional right to trial by jury

is an adequate remedy, While it is true, as the majority

states, that a jury trial will not give the defendant the

‘Interestingly the majority opinion reverts to the contract law

analogy in discussing this question.

A-18

benefit of his bargain with the government, he is not

entitled to any particular sentence within the range

provided in the statute for the crime with which he is

charged. When the government mistakenly makes an offer

and then withdraws it, defendant is not being deprived of a

specific sentence to which he has a constitutional right.

The majority and Cooper make much of fairness. In

Cooper, however, the withdrawal of the plea offer based on

the superior'’s overruling of the subordinate is a distinct

kind of unfairness to the defendant. But here a mistake by

the prosecutor involves the interest not only of the

defendant, but of the public as well, and has fairness

implications of a far different nature. A mistake should be

given different treatment from what was at best the

insistance on an organimetions, if not bureaucratic,

prerogative.

For the foregoing reasons, I would affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT