# Opposition Brief — Goldberg v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1782%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 498 U.S. 966 ## Text Vv. UNITED STATES OF AMERICA "Ti ees ~ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS "FORTHE BLEVENTH CIRCUIT - BRIEF FOR THE UNITED STATES IN OPPOSITION # aed ili A - i Y ud gh Oe. ye x ™ SOE gh aie a. f . ~, ‘ie Opes : $ ‘ ~s , , ih ne hee ts ep th ote Soe Pe A : a Lor Pare Pg | LL e a ae « * i 4 ee Spt Ey a 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 i oc cncataiehennlannauenshcenenenuhatnanenneanantn ae conics emeblenionsiiienaienstnisniies dele bediaieiidsbechnilinainainet lla ia ed i elaennnnngnmindanienmennnennanann ET I ee nO ~ 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. da titi iaiahlaiccintainiatcbailaliphhisticasnabeintnmnaniedinarnannace 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. | RE LC ee Statute and rules: I a ssshintbicedineticeinn Fed. R. Crim. P.: - a sai aeneenlinamnanin EE SR EC SSIES REA a aicenadieetsoieeeiiteinaonanant (111) oo; = em oe oe ud 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 etna iieineaeiaitimiaammmaaininee | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1782%3A2. Public record. Not legal advice.