Opposition Brief — Goldberg v. United States

Vv.

UNITED STATES OF AMERICA

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

"FORTHE BLEVENTH CIRCUIT

- BRIEF FOR THE UNITED STATES IN OPPOSITION

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QUESTION PRESENTED

Whether the district court properly denied without

a hearing petitioner’s motion for specific perform-

ance, in which he alleged without support that his

plea agreement included a condition that his federal

sentence would run concurrently with a state sen-

tence and that he would derive “good time and gain

time” benefits available to state prisoners.

(1)

TABLE OF CONTENTS

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~ TABLE OF AUTHORITIES

Cases:

Blackledge v. Allison, 481 U.S. 63 (1977) ..............

Hill v. Lockhart, 474 U.S. 52 (1987) .......... Ree

McKenzie V. Wainwright, 682 F.2d 649 (5th Cir.

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United States v. Caporale, 806 F.2d 1487 (11th

Cir. 1986), cert. denied, 482 U.S. 917 (1987)...

United States v. Flores, 616 F.2d 840 (5th Cir.

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Statute and rules:

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Fed. R. Crim. P.: -

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Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-36

EDWARD GOLDBERG, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet.

App. I) is unreported, but the judgment is noted at

900 F.2d 265 (Table).

JURISDICTION

The judgment of the court of appeals was entered

on March 12, 1990. The petition for a writ of cer-

tiorari was filed on May 17, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. An indictment filed on October 25, 1985, in the

United States District Court for the Northern Dis-

trict of Florida charged petitioner with conspiring to

(1)

2

import cocaine, in violation of 21 U.S.C. 952.’ On

February 2, 1987, trial began with the selection of

the jury. The next day petitioner, represented by re-

tained counsel, withdrew his not guilty plea and en-

tered a plea of guilty to the charge. Because the

change of plea came on the eve of trial, the parties

did not prepare a written agreement. The district

court, however, conducted an exhaustive inquiry into

the voluntariness of the plea, pursuant to Fed. R.

Crim. P. 11(c).

At the Rule 11 hearing, petitioner admitted his

cuilt, and his attorney discussed at length the terms

of the bargain that had been struck with the govern-

ment. The court was aware that petitioner also had

been indicted in the Southern District of Illinois and

could be charged in Florida state court. With regard

to punishment, petitioner’s counsel said that the gov-

ernment had agreed to advise the state grand jury

about the plea and had no objection if the state court

were to impose a sentence that would run concur-

rently with petitioner’s federal sentence. The trial

judge cautioned petitioner that he had no control

over the actions of the state grand jury or the court

in the Southern District of Illinois. Discussing a

possible transfer of the Illinois charges for disposi-

tion in the Northern District of Florida pursuant to

Fed. R. Crim. P. 20, the judge admonished petitioner

that the failure of a Rule 20 transfer to materialize

had no effect upon the instant proceeding. The court

asked petitioner whether he understood that neither

the prosecutor nor his own lawyer could contro! those

events, and petitioner replied that he understood.

1The statement of facts is taken from the government’s

brief in the court of appeals.

3

The court asked petitioner whether he understood

the terms of the plea agreement. Petitioner replied

that he did. He also told the court that no one had

made any predictions or premises as to the sentence

he would receive. At the end of the Rule 11 inquiry,

the court accepted petitioner’s guilty plea. On April

6, 1987, petitioner was sentenced to imprisonment

for 15 years.

On August 3, 1987, petitioner filed with the sen-

tencing court a motion requesting a reduction of the

sentence and an order directing that his federal sen-

tence be made to run concurrently with his state

sentence. On January 14, 1988, the court reduced

the prison term to 7% years and recommended that

petitioner be placed in a state institution. The court,

however, did not agree to order that the federal sen-

tence terminate at the same time as the state sen-

tence.

2. On February 1, 1989, petitioner, represented by

different counsel, filed with the sentencing court a

motion alleging that part of the plea bargain was

that petitioner’s federal sentence would end at the

same time as his state sentence. Petitioner claimed

that on the morning of trial he was in possession of

a plea agreement approved in the Southern District

of Illinois with Rostyslaw Kindratiw, who was peti-

tioner’s co-defendant in that district and an unin-

dicted co-conspirator (and government witness) in

the Northern District of Florida prosecution. One

condition of that agreement was that Kindratiw

would be sentenced first in the state court: Kin-

dratiw’s sentence in the Southern District of Illinois

would be ordered to run concurently with the state

sentence; and Kindratiw would be allowed to benefit

from the “good [time]” and “gain time” credits re-

ceived by Florida state prisoners. Pet. App. II para.

4

4. Petitioner alleged that on the morning of his trial

in the Northern District of Florida he advised the

prosecutor and his own lawyer that he would plead

_ guilty if he could receive the same deal as Kindratiw.

According to petitioner, the government had agreed

to his proposal. In his motion for collateral relief

petitioner asked the court to order specific perform-

ance of that condition.

In response, the government denied that it had

ever agreed to such an arrangement. The govern-

ment pointed out that no such arrangement had been

discussed at the plea proceedings, and that petitioner

had not alleged the existence of any such agreement

when he filed his earlier post-sentence motion re-

questing reduction of his sentence. The district court

denied petitioner’s motion for specific performance

without a hearing. In an order dated May 9, 1989,

the court stated that it had rejected petitioner’s de-

mand for a “coterminous sentence,” and would have

refused to order such a sentence even if the govern-

ment had recommended it.

ARGUMENT

Petitioner claims that he is entitled to specific per-

formance of his plea agreement, and he faults the

district court for not holding an evidentiary hearing

on his claim.

Summary dismissal of a claim for collateral relief

is appropriate where the allegations, viewed against

the record of the plea hearing, are clearly frivolous

or false. Blackledge vy. Allison, 431 U.S. 63, 76

(1977). Petitioner’s claim was properly rejected

without a hearing.

The record does not support petitioner’s claim that

he had bargained for a coterminous sentence. The

5

written agreement that was reached in Illinois with

co-defendant Kindratiw evidently had been drawn uy,

only after lengthy negotiations that included input

from the State of Florida. Petitioner, who pleaded

guilty at the eleventh hour, must have been aware

that the State was not a party to any agreement that

the federal government and his counsel entered into.

Petitioner admits that the possibility of a sentence

running concurrently with any imposed by the State

was not mentioned at all during the Rule 11 hearing.

Pet. 12. The record of that hearing shows that the

court admonished petitioner that it had no control

over what Florida might do; the record also shows

that petitioner acknowledged that all the terms of his

plea agreement had been revealed in open court.

Consequently, petitioner’s present claim is inconsist-

ent with unambiguous representations made on the

record when petitioner entered his guilty plea.

Petitioner points to no special circumstances that

might support the conclusion that he attached par-

ticular weight to the concurrent nature of the sen-

tence meted out by the several jurisdictions when he

decided to plead guilty. See Hill v. Lockhart, 474

U.S. 52, 60 (1985). Petitioner does not claim that

he would have refused to plead guiity if he had

known that he might not receive thé same effective

sentence in the state and federal systems. Nor did

he provide any supporting evidence, in the form of

an affidavit from his trial counsel (or anyone else),

for his claim. And he did not explain why he waited

several months to make his “coterminous sentence”’

claim, nor did he explain why he failed to raise that

contention in the pleadings he filed prior to his mo-

tion for specific performance. Finally, petitioner did

not allege that his own counsel advised him, rightly

or wrongly, that he could expect to receive a “coter-

6

minous sentence” as part of his plea agreement. Un-

der these circumstances, the courts below correctly

held that petitioner’s demand for specific perform-

ance was meritless and that no hearing was required

before disposing of his claim. See United States v.

Caporale, 806 F.2d 1487, 1516-1517 (11th Cir. 1986),

cert. denied, 482 U.S. 917 (1987) ; McKenzie v. Wain-

wright, 632 F.2d 649, 652 (5th Cir. 1980); United

States v. Flores, 616 F.2d 840, 841-842 (5th Cir.

1980).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

MERVYN HAMBURG

Attorney

OCTOBER 1990

WU S. GOVERNMENT PRINTING OFFICE, 1990 262061 20163

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