Merrill E. Fields, Petitioner-appellant, v. Attorney General of the State of Maryland; Kenneth E.taylor, Warden, Respondents-appellees, 956 F.2d 1290 (4th Cir. 1992)

Steven H. Goldblatt, Director, Appellate Litigation Clinical Program, Washington, D.C. (Beth E. Cook, Supervising Atty., James I. Crowley, Student Counsel, David A. Moss, Student Counsel, Appellate Litigation Clinical Program, on brief), Washington, D.C., for petitioner-appellant.

Sara Elizabeth Page, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Md., on brief), Baltimore, Md., for respondents-appellees.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, WILKINSON, Circuit Judge, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ELLIS, District Judge:

Merrill Fields appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition alleges constitutional deprivations arising out of events surrounding plea bargaining conducted in connection with state daytime housebreaking charges against him. Specifically, Fields alleges that (i) he was denied his Sixth Amendment right to counsel at a critical stage of the criminal proceedings and his Fourteenth Amendment rights to Due Process and Equal Protection when his appointed counsel failed to appear on his behalf at his two rearraignments; (ii) he was deprived of his Sixth Amendment right to effective assistance of counsel in connection with his guilty plea; and (iii) he was denied fair play and equity under Maryland law when the state declined to resurrect plea bargain offers contemplated, but not consummated, at his rearraignments. The district court denied Fields' petition, holding that (i) arraignments are not critical stages of criminal proceedings requiring counsel under the Sixth Amendment; (ii) Fields failed to meet the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test for ineffective assistance of counsel; (iii) the facts do not support Fields' claim that he was denied fair play and equity under Maryland law; and (iv) the court could not fashion an effective remedy, even if Fields were entitled to relief. Although we decline to adopt some of the district court's reasoning, we find the result is sustainable on other, appropriate grounds. We therefore affirm.

In January 1988, Merrill Fields faced two separate daytime housebreaking charges. Each carried a twenty year maximum sentence. He was scheduled to be arraigned on one of these, Case No. 58735705, on January 13, 1988. No arraignment date had yet been scheduled for the second charge, Case No. 28802203. Michael Gambrill of the Public Defender's Office represented Fields at the January 13th arraignment. On that occasion, the prosecutor, Louis Coleman, offered a cap of seven years' imprisonment in exchange for a guilty plea. The presiding judge, Judge Silver, indicated that if such a plea agreement were consummated and a guilty plea entered, he would impose a sentence of only eighteen months. Presumably in response to this, Coleman then offered Fields a plea bargain of eighteen months' imprisonment in exchange for a guilty plea. Gambrill informed Fields of this offer, but apparently advised him to postpone his acceptance until the second housebreaking count, Case No. 28802203, could be consolidated with the first count.¹  Fields indicated to Gambrill his willingness to accept the eighteen-month offer and his further desire to have Gambrill negotiate a second plea bargain for the second charge.²  Gambrill therefore asked that Fields be arraigned in Case No. 58735705 on a future date to allow the two cases to be consolidated. Rearraignment was scheduled for February 2, 1988, before Judge Silver. Coleman agreed that the eighteen-month offer on the first count would remain open until the rearraignment. Trial was set for February 29, 1988.

Gambrill did not attend his client's rearraignment on February 2nd.³  Advised by prosecutor Roman Choma that arraignment in the second case was now set for February 10th, Judge Silver continued the rearraignment to that date to allow the two cases to be arraigned together. No plea offers were made or discussed at the brief February 2nd hearing. Fields was present, but apparently believed he could neither accept nor reject any plea offers in the absence of his attorney, and thus did not raise the issue.

On February 10th, Judge Silver rearraigned Fields in Case No. 58735705 and arraigned him in Case No. 28802203. Again, Gambrill failed to appear.⁴  Choma represented the government. At the time, Choma was considering a plea bargain offer of two years' imprisonment on the second charge, but was unable to communicate any offer to Fields because of Gambrill's absence.⁵  He did record the contemplated offer in Fields' case file. Another public defender present in the courtroom was unfamiliar with Fields' case and could not assist Fields because the case file was in Gambrill's possession.

Fields appeared for trial on February 29, 1988, before Judge Hubbard. Gambrill was present. Prosecutor Jack Lesser offered to recommend a seven-year cap in exchange for guilty pleas on both counts. Fields rejected this offer. Gambrill then objected to the state's refusal to honor the original eighteen-month offer in Case No. 58735705 and the two-year offer in Case No. 28802203⁶  and indicated that he intended to call prosecutors Coleman and Choma to testify regarding the offers and whether they remained open.⁷  Judge Hubbard indicated that if any open offers were below the state sentencing guidelines' ranges, she would require argument about why the court should accept them.⁸  She then continued the case until April 19, 1988. Thereafter, Lesser expressly withdrew the seven-year offer.

On April 19, 1988, Fields, accompanied by Gambrill, appeared again before Judge Hubbard for trial. Gambrill did not raise the issue of the earlier arraignment offers, nor did he call Coleman or Choma to testify. At Fields' instigation, Gambrill made a counteroffer to the state. Following negotiations, the parties agreed that Fields would plead guilty in both cases in exchange for the state's recommendation of concurrent ten-year terms of imprisonment, of which five years of each would be suspended. The agreement included a term of probation following imprisonment, as well as drug screening and treatment. During the ensuing plea colloquy, Judge Hubbard and Gambrill questioned Fields regarding the voluntariness of his plea and advised him of the rights he would waive by pleading guilty. Importantly, he was advised that his appeal rights would be limited to issues of coercion of the plea, jurisdiction of the court, receipt of a sentence greater than the statutory maximum, and ineffective assistance of counsel. Apropos of this last issue, Fields, in the plea colloquy, stated, "I am very pleased with my counsel." Thereafter, he pled guilty to both counts.⁹  The court accepted the pleas and sentenced Fields to two concurrent ten-year terms of imprisonment, with five years of each term suspended, and five years of probation upon release from confinement.

Fields then petitioned for post-conviction relief in the Circuit Court for Baltimore City, claiming that Gambrill's absence at the two rearraignments cost him the eighteen-month and two-year plea bargains, resulting in his receipt of a harsher sentence. Specifically, he alleged: (i) denial of the Sixth Amendment right to counsel at the arraignments; (ii) denial of the right to the assistance of counsel at the arraignments under the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (iii) denial of the right to effective assistance of counsel under the Sixth Amendment; and (iv) denial of the right to fair play and equity under Maryland law. Following a state court post-conviction hearing, Fields' petition was denied. Having exhausted his state remedies, Fields petitioned pro se for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The district court denied Fields' petition, holding (i) that Fields had not been denied counsel at a critical stage of the criminal proceedings because in Maryland arraignments are not adversarial proceedings requiring the assistance of counsel; (ii) that Gambrill's failure to attend the rearraignments did not result in violations of Fields' Due Process and Equal Protection rights under the Fourteenth Amendment; and (iii) that Fields' ineffective assistance of counsel claim failed because a showing of prejudice required under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), had not been made. Specifically, the district court found nothing in the record indicating that Fields intended to accept the original plea offers, nothing indicating that the trial judge would have accepted the arraignment plea bargains, and nothing delineating the full terms of the alleged plea bargains, particularly whether the prison sentences were to run concurrently or consecutively. Alternatively, the district judge held that even if Fields had prevailed on the merits of his claims, no effective remedy could be fashioned. Specific performance was unavailable because there was no evidence of detrimental reliance by Fields on any plea offers and because the terms of the original plea offers were uncertain. Nor would repleading assure Fields the relief he sought; a state court would not be bound to accept any new plea or follow any new plea recommendation. Fields v. Singleton, No. H-90-61 (D.C.Md. Oct. 22, 1990).

This appeal followed. On February 27, 1991, we granted a certificate of probable cause and appointed counsel for Fields.

We address first Fields' constitutional claims of denial of counsel at a critical stage of criminal proceedings and denial of Due Process and Equal Protection. As these present questions of law, we review them de novo. See, e.g., Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988); Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1285 n. 12 (4th Cir. 1987).

It is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivations.¹⁰  Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S. Ct. 1602, 1607-08, 36 L. Ed. 2d 235 (1973) (holding that a counseled guilty plea barred a state prisoner's claim of racial discrimination in the selection of the indicting grand jury). See also Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546-47, 81 L. Ed. 2d 437 (1984) ("It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked."); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970) (valid guilty plea barred review of claim of impermissible burden on right to jury); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) (review of allegations of coerced confessions foreclosed); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970) (same); United States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990) ("A defendant who enters a guilty plea waives the right to raise a constitutional challenge to his or her conviction ... except in narrow circumstances.") (citation omitted). Once judgment on a plea is final, collateral inquiry is limited to whether the plea itself was counseled and voluntary.¹¹  See, e.g., United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 762, 102 L. Ed. 2d 927 (1989); Mabry, 467 U.S. at 508-09, 104 S. Ct. at 2546-47; Tollett, 411 U.S. at 266-67, 93 S. Ct. at 1606-07; Brady, 397 U.S. at 749-58, 90 S. Ct. at 1469-74; McMann, 397 U.S. at 766-772, 90 S. Ct. at 1446-49; Parker, 397 U.S. at 794-98, 90 S. Ct. at 1461-63.

Fields, however, seeks to invoke an exception to this general principle recognized by the Supreme Court in Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975).¹²  There, the Court held that federal habeas review is available "when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues...." 420 U.S. at 293, 95 S. Ct. at 891-92.¹³  The meaning of "state law" in the Court's holding, however, is arguably ambiguous. It clearly includes state statutory law, as was the case in Lefkowitz. At least two circuits have extended Lefkowitz beyond state statutory law to include state common law and procedural practice.¹⁴  Fields invites us to adopt this expansive view. We decline this invitation. Whether "state law" under Lefkowitz encompasses more than statutory law is a question we need not reach. Here, no Maryland statute, common law, or procedural practice authorizes post-guilty plea review of prior constitutional violations. See McCoy v. Warden of the Md. Penitentiary, 234 Md. 616, 617, 198 A.2d 245, 246 (1964) (under Maryland law, a guilty plea waives all claims of non-jurisdictional defects); Deyermond v. State, 19 Md.App. 698, 702-03, 313 A.2d 709, 712 (1974) (same). Thus, even assuming, arguendo, that the Lefkowitz exception to Tollett extends to Maryland common law and procedural practice, Lefkowitz is inapplicable here.

Having determined that the Lefkowitz exception to Tollett has no force here, we can now dispose of Fields' first two grounds for relief. Fields alleges that because Gambrill did not attend the rearraignments, he was denied counsel at a critical stage of the proceedings in violation of the Sixth Amendment. While we ultimately arrive at the same result as the district court on this issue, we do so for a different reason. The district court, without consideration of Tollett, reached the merits of Fields' denial of counsel claim. Yet this claim concerns an alleged constitutional deprivation that occurred prior to Fields' guilty plea and is unrelated to it. Tollett therefore bars this claim. Given this, we need not reach the merits. Similarly, Tollett forecloses review of Fields' further claim that he was denied Due Process and Equal Protection under the Fourteenth Amendment because of Gambrill's failure to attend the rearraignments. This claim, too, relates to events antecedent to Fields' guilty plea.¹⁵  In the context of this claim, the district court correctly observed that Fields could collaterally attack his plea only by challenging its consensual character. While we disagree with the district court's view that Fields "does not attack the voluntariness and intelligence of his guilty plea,"¹⁶  we affirm the district court's holding that Fields' Due Process and Equal Protection claims fail.

The heart of Fields' petition is his claim of ineffective assistance of counsel, in violation of the Sixth Amendment. A guilty plea does not bar collateral review of allegations of ineffective assistance of counsel in so far as the alleged ineffectiveness bears on the voluntariness of the guilty plea.¹⁷  See Hill v. Lockhart, 474 U.S. 52, 53-59, 106 S. Ct. 366, 367-70, 88 L. Ed. 2d 203 (1985). See generally Broce, 488 U.S. at 569, 109 S. Ct. at 762; Mabry, 467 U.S. at 508-09, 104 S. Ct. at 2546-47; Brady, 397 U.S. at 749-58, 90 S. Ct. at 1469-74; McMann, 397 U.S. at 766-772, 90 S. Ct. at 1446-49; Parker, 397 U.S. at 794-98, 90 S. Ct. at 1461-63. Ineffective assistance of counsel claims are governed by the settled doctrine of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is equally settled that this doctrine applies to ineffective assistance claims asserted in connection with guilty pleas. Hill, 474 U.S. at 57, 106 S. Ct. at 369.

Strickland announces a two-part test for evaluating a lawyer's effectiveness. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-88, 104 S. Ct. at 2064-65. Second, " [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068. These two components are typically referred to as the "performance" and "prejudice" components. Id. at 698, 104 S. Ct. at 2070. The defendant bears the burden of proving Strickland prejudice. See Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir. 1983), cert. denied, 464 U.S. 1065, 104 S. Ct. 750, 79 L. Ed. 2d 207 (1984). If the defendant cannot demonstrate the requisite prejudice, a reviewing court need not consider the performance prong. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. Our analysis may properly begin, then, with the prejudice prong.¹⁸ 

The pivotal question is what type of prejudice Fields must demonstrate. In Hooper v. Garraghty, 845 F.2d 471 (4th Cir. 1988), we stated:

When a defendant challenges a conviction entered after a guilty plea, "prejudice" prong of the [Strickland ] test is slightly modified. Such a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."

845 F.2d at 475 (quoting Hill, 474 U.S. at 59, 106 S. Ct. at 370). Accord Craker v. McCotter, 805 F.2d 538, 542 (5th Cir. 1986) (allegation that effective counsel would have negotiated a better plea bargain insufficient to establish prejudice under Hill) . Here, Fields concedes that even with competent counsel he would not have stood trial. To the contrary, the crux of Fields' case is that with effective assistance he would have pled to a different plea bargain and received a more favorable sentence. Manifestly, therefore, Fields cannot make the showing of prejudice required under Hooper and Strickland.¹⁹  But our inquiry cannot end here, for prejudice is presumed under Strickland in certain circumstances. For example, actual or constructive denial of counsel is legally presumed to result in prejudice, as is state interference with counsel's assistance. Strickland, 466 U.S. at 692, 104 S. Ct. at 2067. Importantly, prejudice is presumed, and the prejudice test satisfied, "if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.' " Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708, 1718, 1719, 64 L. Ed. 2d 333 (1980)) (citation omitted). To prevail under this standard, a defendant must do more than show the possibility of a conflict of interest. He must point to an actual conflict of interest and show that such conflict of interest actually affected his attorney's representation. See Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719 ("We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.").

Fields maintains that while advising him to plead guilty, Gambrill labored under an actual conflict of interest arising from a divergence between Fields' interest in resurrecting and enforcing the arraignment plea agreements and Gambrill's interest in protecting his own professional reputation and good-standing.²⁰  Fields contends that Gambrill did not vigorously advocate enforcement of the "lost" plea agreements when the case was called for trial on February 29th, because to do so would have required Gambrill to confess his own negligence or incompetence. Fields argues that just as trial counsel cannot be expected to assert his own incompetence on direct appeal, see Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983), cert. denied, 468 U.S. 1219, 104 S. Ct. 3589, 82 L. Ed. 2d 886 (1984), Gambrill could not be expected to assert his own prior shortcomings on Fields' trial date.

The record simply does not support Fields' claim in this regard. On the first trial date, Gambrill frankly admitted in open court his absence at the rearraignments and the resulting confusion about the status of the plea offers. Once these acts were publicly acknowledged, any conflict that might have stemmed from Gambrill's interest in protecting his professional standing evaporated. Thus, although Fields arguably demonstrates a possibility that a conflict of interest could have infected Gambrill's performance, he fails to document a concrete conflict that actually affected the advice he received. Because he is unable to establish prejudice under Strickland, Fields' ineffective assistance claim necessarily fails.

Importantly, the result reached here comports with the substantive equities in this case. The record reflects that Fields' plea was voluntary and intelligent. During his plea colloquy, Fields was twice asked whether anyone forced, coerced, or threatened him into pleading guilty and he twice answered under oath in the negative. When asked, "Are you sure that you understand everything?", Fields responded, under oath, "I understand everything." The transcript of the plea proceedings discloses that at no time during his plea did Fields mention the past plea offers. Nor did he express dissatisfaction with Gambrill's performance. To the contrary, he volunteered, under oath, the comment, "I am very pleased with my counsel."²¹  Absent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy. See Blackledge v. Allison, 431 U.S. 63, 74-75, 97 S. Ct. 1621, 1629-30, 52 L. Ed. 2d 136 (1977); Little v. Allsbrook, 731 F.2d 238, 239-40 n. 2 (4th Cir. 1984). Fields presents no evidence that suggests his representations during his plea were untruthful or involuntary, and he is therefore rightly bound by his sworn statements. The voluntary and intelligent character of Fields' plea bargain is further evidenced by the fact that the plea agreement was favorable to him and accepting it was a reasonable and prudent decision. His punitive exposure, had he been convicted at trial, would have been twenty years' imprisonment on each count; instead, he was sentenced, effectively, to a total of five years. Significant, too, is that the plea offer Fields eventually accepted derived from his own proposal to the government, a proposal he presumably made based on his view of his best interests and which provided for a lesser sentence than the immediately preceding plea offer made by the government, which would have capped the sentence at seven years.²²  In sum, while Fields in hindsight may now wish he had not attempted to consolidate the two charges against him and had pled instead to the eighteen-month offer at the first arraignment, nothing in the record supports the proposition that his guilty plea was other than voluntary and intelligent.

For all of the foregoing reasons, we hold that the district court correctly denied Fields' ineffective assistance of counsel claim.

Fields' fourth and final ground in his habeas petition is denial of fair play and equity under Maryland law. The fatal defect here is that federal habeas corpus relief is unavailable for this state law claim. 28 U.S.C. § 2254(a) (providing that federal habeas review of a state court judgment is available "only on the ground that ... [a petitioner] is in custody in violation of the Constitution or laws and treaties of the United States."). Since Fields' fair play and equity claim asserts no violation of the Constitution or federal law, § 2254 furnishes no basis for relief. See Mabry, 467 U.S. at 507, 104 S. Ct. at 2546 ("Respondent can obtain federal habeas corpus relief only if his custody is in violation of the federal Constitution."). Moreover, as the district court correctly found, the claim is unsupported by the facts. Fields cannot contend that the state breached any prior plea agreements because none existed.

Finally, assuming, arguendo, that Fields could prevail on the merits of his claims, it is simply beyond the power of any court to fashion a remedy that would guarantee Fields the relief he seeks in his petition. As the district court correctly concluded, specific performance of the arraignment plea offers would be available only if Fields had accepted a valid plea agreement or detrimentally relied on a valid plea agreement that was subsequently withdrawn. See Santobello, 404 U.S. at 262, 92 S. Ct. at 499; United States v. Aguilera, 654 F.2d 352, 353 (5th Cir. 1981) (no specific performance of a plea offer neither accepted nor relied on by defendant). And even where there has been detrimental reliance, specific performance is not a constitutionally mandated remedy. See Santobello, 404 U.S. at 263, 92 S. Ct. at 499; Mabry, 467 U.S. at 510 n. 11, 104 S. Ct. at 2548 n. 11. Rather, under Santobello, if the government breaches a plea agreement, the sentence must be vacated and the state court must either (i) enforce the plea bargain or (ii) give the defendant an opportunity to go to trial on the original charge. Santobello, 404 U.S. at 263, 92 S. Ct. at 499.

Here, there is no evidence that Fields accepted or detrimentally relied upon any plea agreements. Thus, Fields is not entitled to specific performance. Furthermore, as the district court found, "the uncertainty surrounding the original plea offers precludes specific performance as an appropriate remedy." Fields v. Singleton, No. H90-61 (D.C.Md. Oct. 22, 1990). Practically speaking, it would be impossible to know what terms to enforce. Alternatively, Fields might be allowed to withdraw his plea and either replead or proceed to trial. But as the district court observed, the state prosecutor would not be bound to offer either of the original plea offers. And the state court, although barred from imposing a harsher sentence, would not be obligated to accept the original plea offers or to sentence Fields to a lower sentence than the one he now serves. Fields clearly does not want to go to trial. For these reasons, the remedy Fields seeks--enforcement of more lenient sentencing recommendations contained in prior plea offers--is simply unavailable.

In conclusion, for the above-stated reasons, we affirm the district court's denial of Fields' petition for a writ of habeas corpus.

AFFIRMED.