DAVID WAYNE BAKER, PETITIONER V. UNITED STATES OF AMERICA

   No. 85-7080

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Brief for the United States in Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 20-25) is reported
at 781 F.2d 85.  The order of the district court (Pet. App. 19) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 27) was entered on
January 15, 1986.  /1/ On March 11, 1986, Justice O'Connor issued an
order extending the time within which to file a petition for a writ of
certiorari to and including May 15, 1986, and the petition was filed
on April 29, 1986.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether, in the particular circumstances of this case,
petitioner was entitled to an evidentiary hearing under 28 U.S.C. 2255
with respect to his claim that his guilty plea should be vacated on
the ground that the plea was not voluntary.

   2. Whether the court of appeals erred by refusing to consider
petitioner's untimely rehearing petition.

   3. Whether petitioner was entitled to an evidentiary hearing on his
claim that his guilty plea was the result of ineffective assistance of
counsel.

                               STATEMENT

   Following a guilty plea, petitioner was convicted in the United
States District Court for the Eastern District of Kentucky on one
count of distributing cocaine, in violation of 21 U.S.C. 841(a)(1) and
18 U.S.C. 2.  He was sentenced to 15 years' imprisonment.  Petitioner
subsequently moved to vacate his sentence pursuant to 28 U.S.C. 2255;
the district court denied the motion (Pet. App. 19) and the court of
appeals affirmed (id. at 20-25).

   1. On August 7, 1984, petitioner appeared before the district court
to enter a guilty plea to one count of distribution of cocaine, in
violation of 21 U.S.C. 841(a)(1).  Pursuant to Rule 11 of the Federal
Rules of Criminal Procedure, the district court "examined (petitioner)
as to his competence to plead, his understanding of the consequences
of his actions in pleading guilty, and his voluntariness" (Pet. App.
20-21).  As part of this inquiry, the district court ascertained the
provisions of the plea agreement between petitioner and the government
(see Fed. R. Crim. P. 11(e)(2)).  Petitioner's attorney advised the
court (Pet. App. 21) that in exchange for petitioner's guilty plea the
government had agreed to dismiss both counts of a second indictment
that charged petitioner with one count of conspiring to distribute
cocaine, in violation of 21 U.S.C. 841(a)(1) and 846, and one count of
distributing cocaine, in violation of 21 U.S.C. 841(a)(1) (see Pet.
App. 2-3).  The court then asked the prosecutor, petitioner's
attorney, and petitioner himself whether there was "(a)ny other
understanding" between petitioner and the government (id. at 21).  All
three responded that there was "(n)o other understanding whatsoever"
(ibid.).

   The district court also asked petitioner whether "anyone
attempt(ed) to prophesize what the court might do in passing sentence
in this case" (Pet. App. 21).  Petitioner replied that no one had
predicted the sentence that the court might impose on the single
distribution count (ibid.).  The court informed petitioner "'that the
maximum possible sentence that could be handed down * * * would be
imprisonment for a term of 15 years, . . . or in case if you have a
prior offense, a maximum sentence of incarceration of 30 years'"
(ibid. (citation omitted)).  After satisfying itself that petitioner
understood the maximum sentence to which he was subject and the rights
that he waived by entering a plea of guilty, the district court
accepted the plea.

   Seven months later, petitioner filed a motion to vacate his
sentence pursuant to 28 U.S.C. 2255.  He alleged that (1) his guilty
plea was not knowing and voluntary because he was threatened with an
enhanced 75-year sentence if he went to trial and because the
government broke its promise to stand mute at his sentencing;  (2) his
plea was involuntary even if the government had not entered into such
a promise because the plea was based upon his attorney's
representation that the government would stand mute;  and (3) his
guilty plea was invalid because it was the result of ineffective
assistance of counsel.  See Pet. App. 7-18.  The district court denied
the motion (id. at 19).

   2. The court of appeals unanimously affirmed (Pet. App. 20-25).
The court rejected petitioner's claim that his guilty plea was not
voluntary.  It found that the claim based upon the alleged threat to
enhance petitioner's sentence was "without merit," observing that "the
(district) court itself properly informed (petitioner) of the maximum
jail sentence he could receive before accepting the plea" (id. at 21).

   Turning to petitioner's claim that the government promised to stand
mute and take no position at his sentencing, the court of appeals
first noted that the prosecutor in fact "did not request any
particular sentence" although he did "make a statement at sentencing"
(Pet. App. 20).  The court observed that petitioner failed to reveal
the existence of this alleged promise during the Rule 11 proceeding
despite being afforded the opportunity to do so.  "It was incumbent
upon him," the court of appeals stated, "to reveal to the (district)
court all the terms of the plea agreement when expressly asked to do
so" (id. at 21).  The court concluded that (id. at 23)

      where Rule 11 procedures were fully adequate, absent
      extraordinary circumstances, or some explanation of why
      (petitioner) did not reveal other terms, at least when
      specifically asked to do so by the court, a defendant's plea
      agreement consists of the terms revealed in open court.

   Since the government complied with the agreement revealed during
the Rule 11 colloquy "there was no breach of agreement in this case.
(Petitioner's) plea was knowing and voluntary" (Pet. App. 23).

   The court of appeals further found that petitioner had waived his
claim that the government violated the plea agreement.  It stated that
"once it became clear at the sentencing hearing that the government
did not intend to stand mute, it would have been reasonable for
(petitioner), who was present and represented by counsel, to object if
the agreement did indeed consist in part of this promise" (Pet. App.
24).  It found that "(petitioner's) failure to object to the
government's statement at sentencing constitutes waiver in this
situation" (ibid.).

   The court of appeals also rejected petitioner's claim that the
district court should have conducted an evidentiary hearing before
denying the Section 2255 motion.  The court found that the record of
petitioner's plea and sentencing hearings disclosed no "breach of
agreement or other impropriety in the administration of the plea
agreement" (Pet. App. 25).  Moreover, petitioner entered his guilty
plea before, and was sentenced by, the district judge who denied the
Section 2255 motion.  The court of appeals found that the district
judge was therefore "in a position to recall the facts and
circumstances surrounding the plea after consulting the record" (Pet.
App. 25).  Accordingly, the court of appeals concluded that an
evidentiary hearing was not required (ibid.).

   The court of appeals next considered petitioner's claim that his
attorney had erroneously advised him concerning his potential
sentence.  Petitioner asserted that his attorney said that his
sentence might be enhanced because of a prior conviction for a drug
offense.  Petitioner claimed that this advice was incorrect because
enhancement is a possibility only when the prior conviction becomes
final before the commission of the subsequent offense;  petitioner's
prior conviction was pending on appeal at the time he allegedly
committed the subsequent offenses.

   The court of appeals observed that "(u)nder 21 U.S.C. 841(b)(1)(B),
(petitioner's) maximum possible sentence for conviction on either or
both of the indictments for distribution of cocaine could have been
doubled if his prior conviction had 'become final'" (Pet. App. 24).
Noting that it had not previously addressed the question whether a
conviction is "final" if the case is pending on appeal, the court of
appeals concluded that the advice given by petitioner's counsel "may
well have been simply detailing the worst case scenario" by
"predicting that retroactive enhancement was a possibility" (Pet. App.
24).  The court of appeals accordingly concluded (id. at 25) that the
advice given by petitioner's counsel, if incorrect, was not so
erroneous as to fall below the objective reasonableness standard
announced by this court in Strickland v. Washington, 466 U.S. 668
(1984).  The court further noted that petitioner's ineffective
assistance claim was independently barred by his failure to "prove, or
even sufficiently allege, the prejudice required to satisfy * * *
Strickland" (Pet. App. 25).

                               ARGUMENT

   The decision of the court below is correct and does not conflict
with any decision of this Court or another court of appeals.  Further
review by this Court is not warranted.

   1. Petitioner challenges the voluntariness of his guilty plea on
two related theories.  He first asserts (Pet. 10-16, 19-22) that he
was entitled to an evidentiary hearing to establish that the
government promised to stand mute and take no position at his
sentencing and that its failure to do so rendered his guilty plea
involuntary.  He also argues (Pet. 23-26) that even if the government
did not enter into such agreement, he was informed by his attorney
that the government had agreed to stand mute at sentencing and that
his guilty plea was not knowing and voluntary because it was premised
upon that erroneous information.  Each of these claims is meritless.

   a. This Court has made clear that a defendant's guilty plea limits
the claims of error that he may assert in an action under Section
2255.  In United States v. Timmreck, 441 U.S. 780 (1979), the Court
observed that "the concern with finality served by the limitation on
collateral attack has special force with respect to convictions based
on guilty pleas" (441 U.S. at 784 (footnote omitted)).  An error may
be redressed under Section 2255 only if it is constitutional,
jurisdictional, or it "resulted in a 'complete miscarriage of justice'
or in a proceeding 'inconsistent with the rudimentary demands of fair
procedure.'" Ibid., quoting Hill v. United States, 368 U.S. 424, 428
(1962).

   Assuming arguendo that the prosecutor promised petitioner that the
government would stand mute at petitioner's sentencing, and that
petitioner would not have entered his guilty plea without that
promise, petitioner could have been prejudiced by the government's
failure to abide by its promise only if there is a reasonable
possibility that the prosecutor's statements convinced the district
court to increase the sentence that it otherwise intended to impose
upon defendant.  The transcript of the sentencing proceeding
demonstrates that the prosecutor's statements could not have affected
the district court's decision and, therefore, petitioner could not
have been prejudiced by the prosecutor's failure to stand mute.  Thus,
even if the government violated the plea agreement, its actions did
not rise to the level of an error redressable under Section 2255.

   First, the prosecutor did not recommend that the district court
impose a specific sentence on petitioner.  His brief statement --
which consists of less than two pages of the hearing transcript -- was
limited to a cursory discussion of the crimes committed by petitioner.
 See Pet. App. 21;  App., infra, 2a-3a.  /2/ Thus, the prosecutor did
not make the sort of specific recommendation that -- if it differed
from the district court's preliminary assessment of the case -- might
have influenced the district court to increase petitioner's sentence;
he made only general comments about petitioner's prior criminal
activity.

   Moreover, these general comments did not bring to the district
court's attention any information about petitioner that the court did
not already possess.  For example, the prosecutor first referred to
petitioner's prior convictions, noting that the court was "well aware
of and * * * familiar with" that conduct (App., infra, 2a).  Indeed,
the district court's subsequent statement indicates that it had more
information about these convictions than did the prosecutor (compare
id. at 2a with id. at 4a-5a).  The prosecutor next discussed the
charges to be dismissed pursuant to the plea agreement (id. at 2a-3a).
 The district court plainly was familiar with those charges because
they were described in the indictment and had been discussed during
the Rule 11 proceeding (see Pet. App. 2-3, 21).  Finally, the
prosecutor discussed certain references to petitioner in a criminal
information previously filed against one of petitioner's co-defendants
(App., infra, 3a).  The district judge already was familiar with the
charge contained in that information;  the United States Attorney's
office informs us that the same judge had accepted a guilty plea to
that charge less than two weeks before he sentenced petitioner.

   The district court's statement before pronouncing sentence confirms
that the court was not at all influenced by the prosecutor's brief
remarks.  The court first noted that it had "reviewed the pre-sentence
report" (App., infra, 3a).  It then discussed petitioner's prior
offenses in detail -- citing information that it must have obtained
from the presentence report (id. at 3a-5a).  The court also noted the
"pervasive" drug problem in the United States and told petitioner:
"You can't say that you are not part of it because it's people like
you that push it;  that get these kids hooked and then their lives are
ruined" (id. at 6a).  The court concluded by stating:  "I have a duty
to the community;  I have a duty to you.  Apparently there hasn't been
a judge to make much of an impression on you, Mr. Baker.  I don't know
that anything I can do in this case will make enough of an impression.
 And I can't eliminate the drug problem, but I can sure slow you down"
(id. at 7a).

   In sum, the transcript of the sentencing proceeding indicates that
the prosecutor's meager comments could not have affected petitioner's
sentence.  The district court's recitation of its reasons for imposing
the 15-year sentence upon petitioner indicate that the prosecutor's
statement was irrelevant to its decision.  Since petitioner was not
prejudiced by the prosecutor's comments during the sentencing hearing,
he may not collaterally attack his guilty plea on the ground that the
government breached an alleged promise to stand mute.

   b. Moreover, the courts below correctly concluded, in view of the
facts in the record in this case, that an evidentiary hearing was not
required on petitioner's claim that his guilty plea was not voluntary.
 In Blackledge v. Allison, 431 U.S. 63 (1977), this Court considered
the circumstances in which a defendant is entitled to a hearing on a
claim that the prosecutor breached a previously-undisclosed provision
of a plea agreement.  The Court stated (431 U.S. at 73) that

      the representations of the defendant, his lawyer, and the
      prosecutor at * * * a (plea) hearing, as well as any findings
      made by the judge accepting the plea, constitute a formidable
      barrier in any subsequent collateral proceedings.  Solemn
      declarations in open court carry a strong presumption of verity.
       The subsequent presentation of conclusory allegations
      unsupported by specifics is subject to summary dismissal, as are
      contentions that in the face of the record are wholly
      incredible.

   The Court stated in Blackledge that "th(is) barrier * * *, although
imposing, is not invariably insurmountable" (431 U.S. at 74 (footnote
omitted)).  It found that, because of the absence of a verbatim
transcript of the plea proceeding in that case, an evidentiary hearing
was warranted on the defendant's allegations that there had been a
breach of the plea agreement.  The Court observed, however, that if a
transcript of the plea proceeding had been available and if the
defendant had failed to reveal the alleged promise in response to the
trial court's query as to whether the guilty plea was based upon any
promises by the prosecution, the defendant's habeas corpus petition
"would have been cast in a very different light.  The careful
explication of the legitimacy of plea bargaining, the questioning of
both lawyers, and the verbatim record of their answers at the
guilty-plea proceedings would almost surely have shown whether any
bargain did exist and, if so, insured that it was not ignored" (431
U.S. at 79-80 (footnote omitted)).

   As the court below observed (Pet. App. 21-22), here, in contrast to
Blackledge, the trial court did inquire into the particulars of the
plea agreement at the time that petitioner entered his guilty plea and
those proceedings were preserved in a verbatim transcript.
Petitioner, petitioner's attorney, and the prosecutor, all stated
during the Rule 11 proceeding that no additional promises induced
petitioner's guilty plea.  In such circumstances, the courts of
appeals generally have declined to require an evidentiary hearing in
response to a defendant's claim (1) that the plea agreement contained
a promise not disclosed during the Rule 11 proceeding claim, or (2)
that the defendant's attorney misled him into believing that an
undisclosed promise had been included in the plea agreement.  See,
e.g., United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984);
Ferguson v. United States, 699 F.2d 1071, 1072 (11th Cir. 1983);
Johnson v. Fogg, 653 F.2d 750, 752-753 (2d Cir. 1981), cert. denied,
456 U.S. 907 (1982);  United States v. Goodman, 590 F.2d 705, 710 (8th
Cir.), cert. denied, 440 U.S. 985 (1979);  Moore v. Estelle, 526 F.2d
690, 696-697 (5th Cir.), cert. denied, 426 U.S. 953 (1976);  Crawford
v. United States, 519 F.2d 347, 350 (4th Cir. 1975), cert. denied, 423
U.S. 1057 (1976).  /3/

   The courts of appeals have not flatly prohibited evidentiary
hearings whenever a defendant argues that a provision of the plea
agreement was not disclosed during the Rule 11 proceeding or that he
relied upon his attorney's misrepresentation regarding the provisions
of the plea agreement.  Like the court of appeals in the present case
(Pet. App. 23), they have stated that an evidentiary hearing may be
appropriate in some circumstances.  Thus, some courts have concluded
that a hearing must be held if the defendant's contention is supported
by credible evidence supplied by an impartial third party.  See, e.g.,
United States v. McCord, 618 F.2d 389 (5th Cir. 1980);  United States
v. Marzgliano, 588 F.2d 395 (3d Cir. 1978);  Dugan v. United States,
521 F.2d 231 (5th Cir. 1975).  /4/

   Petitioner was not entitled to an evidentiary hearing under that
standard because the evidence that he submitted in support of his
claim was not nearly as credible as the evidence presented in those
cases in which courts have required an evidentiary hearing.  The two
affidavits submitted by petitioner do not even agree with respect to
the particulars of the promise that allegedly was broken by the
government.  Only petitioner's trial attorney asserts that he had been
told that the prosecutor would "stand mute and take no stance in the
sentencing of (petitioner) (which was not done)" (id. at 15).  /5/ The
more impartial affiant -- the attorney for one of petitioner's
co-defendants -- states only that he overheard petitioner's attorney
tell petitioner that the prosecutor agreed that he "would take no
stance on the sentence that should be imposed on (petitioner), since
sentencing was only in the province of the Court" (Pet. App. 17-18).
As the court of appeals noted (id. at 21), the government did not
request that a specific sentence be imposed upon petitioner;  it
simply made a statement regarding the nature of petitioner's conduct.

   Two other factors distinguish the present case from situations in
which courts have concluded that a defendant has submitted credible
information mandating an evidentiary hearing.  First, in the cases
cited by petitioner in which a court has required an evidentiary
hearing, the record generally has contained a justification for the
failure of both the defendant and his attorney to reveal the promise
during the Rule 11 proceeding.  See United States v. Marzgliano, 588
F.2d at 398 (defendant alleged that his attorney led him to believe
that he had "'fixed' the sentence" and that attorney "directed him to
respond affirmatively when the court asked whether his plea was
voluntary");  note 4, supra;  cf. United States v. Becklean, 598 F.2d
1122, 1125-1126 (8th Cir.), cert. denied, 444 U.S. 864 (1979)
(affirming district court's denial of motion to withdraw guilty pleas
and vacate sentences where the defendants failed to explain their
failure to dispute the prosecutor's description of the terms of the
plea agreement during the Rule 11 proceeding).

   Nothing in the affidavits filed by petitioner explains why both he
and his attorney failed to reveal the existence of this alleged
promise during the Rule 11 colloquy.  As the court of appeals found
(Pet. App. 21), "(t)here is no reason to believe that such a
revelation in this case would have shocked the court below or would
otherwise have prejudiced (petitioner)." This failure to present any
excuse for what petitioner and his attorney presumably now assert were
misrepresentations in open court weighs strongly against the
credibility of these individual's belated claims that a portion of the
plea agreement was not disclosed at trial.  Plainly put, since both
petitioner and his attorney now admit to misleading the trial court
during the Rule 11 colloquy -- without presenting any justification
for their conduct -- it is difficult to see who their statements
should be credited at this stage of the proceedings.

   Second, neither petitioner nor his attorney objected when the
prosecutor failed to stand mute during the sentencing proceeding, even
though the prosecutor's action supposedly breached the plea agreement.
 This silence also undercuts the credibility of the affidavits.
Failure to object to the government's alleged violation of a plea
agreement at the sentencing proceeding may not automatically bar a
Section 2255 motion.  United States v. Corsentino, 685 F.2d 48 (2d
Cir. 1982) (failure to object did not bar defendant's motion to vacate
sentence where the government violated a term of the plea agreement
disclosed during the Rule 11 proceeding).  But the failure to object
surely is a relevant factor in considering whether the affidavits
provide credible evidence of the existence of a previously-undisclosed
promise.

   The court of appeals observed that "once it became clear at the
sentencing hearing that the government did not intend to stand mute,
it would have been reasonable for (petitioner), who was present and
represented by counsel, to object if the agreement did indeed consist
in part of this promise" (Pet. App. 24).  That observation applies
with even more force to petitioner's attorney, who now asserts that
the government violated the plea agreement.  His obligation to his
client certainly required an objection to the government's statement,
and his failure to do so undercuts his present assertion that the
government's silence violated the requirements of the plea agreement.
/6/

   In sum, petitioner has not presented credible third-party evidence
supporting his claim that his guilty plea was not voluntary.  As we
have discussed, the government did not breach the promise described in
the more impartial third-party affidavit.  The other affidavit --
submitted by petitioner's attorney -- cannot be judged sufficiently
credible in light of the entirely unexplained inconsistency between
the statement in the affidavit and the attorney's conduct at both the
Rule 11 proceeding and the sentencing proceeding.  These factors,
combined with petitioner's unexplained silence about the alleged
promise, justify the determination of both of the courts below that an
evidentiary hearing was not warranted in the circumstances of this
case.  /7/

   2. Petitioner claims (Pet. 16-19) that the court of appeals erred
by refusing to consider his rehearing petition on the ground that the
petition was not timely filed.  Petitioner's request for a special
exemption from the controlling procedural rule is without merit.

   The court of appeals rendered its decision in this case on January
15, 1986.  Petitioner asserts that he received the decision on January
22, and that he mailed a rehearing petition on January 27.  The
rehearing petition was received by the court of appeals on January 30
and was returned to petitioner on the ground that it was out of time.
Pet. App. 26, 28.

   Rule 40(a) of the Federal Rules of Appellate Procedure provides
that "(a) petition for rehearing may be filed within 14 days after
entry of judgment unless the time is shortened or enlarged by local
rule." /8/ The judgment in this case was entered on January 15, 1986,
and petitioner's rehearing petition was not received until January 30;
 the rehearing petition therefore was plainly out of time.  See Fed.
R. App. P. 25(a) ("filing (by mail) shall not be timely unless the
papers are received by the clerk within the time fixed for filing").
Strict construction of the time limitation set forth in Rule 40(a)
promotes the important interest in finality:  it permits litigants to
know with certainty when an opponent is precluded from seeking further
relief in the court of appeals.

   Petitioner argues that the court of appeals should have deemed his
filing to be timely under the rationale of Fallen v. United States,
378 U.S. 139 (1964).  The Court in Fallen held that a defendant's
notice of appeal was timely filed where the defendant "did all he
could under the circumstances," even though the notice of appeal was
not filed within the applicable time period (378 U.S. at 144).  That
decision clearly is distinguishable from the present case.

   First, Fallen involved a defendant's ability to obtain review of
his conviction in the court of appeals, which this Court has
characterized as "in effect, a matter of right" (see Coppedge v.
United States, 369 U.S. 438, 441 (1962) (footnote omitted));
consideration by the court of appeals of a petition for rehearing
plainly does not rise to the same level of importance.  Second, the
defendant in Fallen apparently was unaware of the particulars of the
procedural requirement and had been improperly deprived of the
assistance of counsel (378 U.S. at 142-143 & n.4).  Here, there is no
indication that petitioner was unaware of the 14-day deadline.  Third,
the crucial delay in Fallen was chargeable to the prison authorities'
failure to mail the notice of appeal expeditiously (id. at 143).
There was no delay by prison authorities in this case;  the rehearing
petition arrived at the court of appeals only three days after it was
mailed.  Moreover, petitioner did not do "all he could under the
circumstances";  he could have immediately requested an extension of
time from the court of appeals due to the date that he received the
decision.  Accordingly, there is no reason to exempt petitioner from
the requirements of Rule 40(a).  /9/

   3. Finally, petitioner contends (Pet. 26-30) that he was denied
effective assistance of counsel because he was given erroneous advice
from his attorney regarding the maximum sentence that he could receive
if he proceeded to trial.  The courts below correctly rejected this
claim.

   In Strickland v. Washington, 466 U.S. 668 (1984), this Court
adopted a two-part test for evaluating claims of ineffective
assistance of counsel.  The defendant must first establish that
"counsel's representation fell below an objective standard of
reasonableness" (466 U.S. at 687-688).  In addition, he must
demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different" (id. at 694).

   The threshold question is whether the advice allegedly given by
petitioner's attorney fell below the Strickland reasonableness
standard.  Petitioner's total exposure under the two indictments
depended upon whether the enhanced sentencing provision contained in
21 U.S.C. 841(b)(1)(B) applies to any of the counts charged in the
indictments.  Section 841(b)(1)(B) provides that if a person "commits
(a drug offense with respect to a schedule I or schedule II controlled
substance) after one or more prior convictions of him for (a drug)
offense * * * have become final," the person may be sentenced to
imprisonment for up to 30 years, fined $250,000, or both.  On March 3,
1984, a judgment of conviction was entered against petitioner in
connection with charges relating to possession of marijuana.  The
charge to which petitioner pleaded guilty alleged that petitioner
distributed two ounces of cocaine on February 12, 1984 (Pet. App. 6);
the charges that the government agreed to dismiss alleged that (1)
between June 8 and June 12, 1984, petitioner engaged in a conspiracy
to distribute cocaine, and (2) petitioner distributed cocaine on June
8, 1984 (Pet. App. 2-3).  The latter two offenses allegedly were
committed after the date of petitioner's prior conviction;  if they
were subject to enhanced sentencing under Section 841(b)(1)(B),
petitioner could have received a total of 60 years in prison on these
charges.  That 60 years, combined with a potential 15-year sentence on
the third charge, would total 75 years -- the period allegedly
mentioned by petitioner's attorney.

   The difficulty is that petitioner's prior conviction was on appeal
in June 1984.  Although the Sixth Circuit has not construed the
finality requirement of Section 841(b)(1)(B) (see Pet. App. 24), three
other courts of appeals have concluded that a conviction is not final
within the meaning of Section 841(b)(1)(B) if the case is pending on
direct appeal.  United States v. Lippner, 676 F.2d 456 (11th Cir.
1982);  Williams v. United States, 651 F.2d 648 (9th Cir. 1981);
United States v. Allen, 566 F.2d 1193 (3d Cir. 1977), cert. denied,
435 U.S. 926 (1978).  Since this was an open question in the Sixth
Circuit, however, petitioner's attorney may have simply been
presenting petitioner's greatest possible exposure.  It therefore is
not clear that his advice fell below the standard established in
Strickland.  /10/

   In any event, petitioner's ineffective assistance of counsel claim
must fail because petitioner has not alleged that his acceptance of
the plea agreement turned upon the allegedly erroneous advice.  In
Hill v. Lockhart, No. 84-1103 (Nov. 18, 1985), this Court rejected the
defendant's contention that he was entitled to an evidentiary hearing
on his claim that his guilty plea resulted from the ineffective
assistance of counsel.  Regardless of whether the attorney's
assistance was ineffective under the Strickland standard, the
defendant's claim was defective because he did not allege "that,
(absent the alleged ineffective assistance of counsel) * * *, he would
have pleaded not guilty and insisted on going on trial" (slip op. 8).
Since the defendant's allegations were therefore "insufficient" to
support a claim that he was prejudiced by his attorney's advice, no
hearing was required on his ineffective assistance of counsel claim
(ibid.).

   Petitioner also has failed to allege that his plea choice would
have been different if his attorney offered what he views as the
correct advice.  He argues only that "an evidentiary hearing is
required to determine (what) effects (the attorney's) misinformation
(had) on petitioner's decision to plead guilty" (Pet. 29).  Likewise,
neither affidavit supporting petitioner suggests that allegedly
erroneous advice induced his guilty plea (see Pet. App. 15-18).  The
court of appeals thus correctly found that petitioner "failed to
prove, or even sufficiently allege, the prejudice required to satisfy
* * * Strickland" (id. at 25).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   MAURY S. EPNER

      Attorney

   NOVEMBER 1986

   /1/ Petitioner attempted to file a petition for rehearing in the
court of appeals, but that court rejected the petition on the ground
that it was out of time.  Pet. App. 26, 28;  see also pages 15-16,
infra.

   /2/ We have attached as an appendix to this brief the portion of
the transcript containing the prosecutor's remarks and the district
court's statement before pronouncing sentence.

   /3/ Petitioner cites a large number of court of appeals decisions
predating this Court's decision in Blackledge as support for his
contention that a hearing was required here.  See Micklus v. United
States, 537 F.2d 381 (9th Cir. 1976);  Walters v. Harris, 460 F.2d 988
(4th Cir. 1972), cert. denied, 409 U.S. 1129 (1973);  Reed v. United
States, 441 F.2d 569 (9th Cir. 1971);  United States v. Simpson, 436
F.2d 162 (D.C. Cir. 1970);  United States v. McCarthy, 433 F.2d 591
(1st Cir. 1970);  Trotter v. United States, 359 F.2d 419 (2d Cir.
1966);  see also Petraborg v. United States, 432 F.2d 1194 (7th Cir.
1970) (trial court did not conduct Rule 11 colloquy).  These
decisions, which accord merely evidentiary significance to the
defendant's statements during the Rule 11 proceeding, are inconsistent
with this Court's conclusion in Blackledge that procedural protections
of the type set forth in Rule 11 would "almost surely (show) whether
any bargain did exist" (431 U.S. at 80).  As one leading treatise has
observed, "lower courts before (Blackledge) were included to give
little credence to the record made when the guilty plea was received,
but this is much less true today." 2 W. LaFave & J. Israel, Criminal
Procedure Section 20.5, at 667-668 (1984).  These early decisions have
thus been drained of their significance by this Court's decision in
Blackledge.

   /4/ In some circumstances, corroboration by a third party may not
be required because the defendant's allegations may so clearly
indicate the reasons that he did not reveal the provision of the plea
agreement during the Rule 11 proceeding.  For example, in Machibroda
v. United States, 368 U.S. 487 (1962), the defendant alleged that the
Assistant United States Attorney had promised that the defendant would
receive a specified sentence, and "cautioned (the defendant) not to
tell his own lawyer about the conversation" (368 U.S. at 489).  The
defendant allegedly was threatened with additional charges if he did
reveal the conversations.  In Fontaine v. United States, 411 U.S. 213
(1975), the defendant alleged that his guilty plea "had been induced
by a combination of fear, coercive police tactics, and illness,
including mental illness," and supported his allegations with hospital
records.  411 U.S. at 214;  see also Marrow v. United States, 772 F.2d
525, 526-527 (9th Cir. 1985) (defendant alleged that when he told his
lawyer of threats, the lawyer told him to plead guilty and tell the
judge that the plea was voluntary);  United States v. Unger, 665 F.2d
251, 254 (8th Cir. 1981) (evidentiary hearing mandated where the
defendant alleged with specificity that she was assured by her
attorney that the judge had agreed to impose a specific sentence).
The court of appeals correctly concluded (Pet. App. 23) that the
present case is distinguishable because, unlike the defendants in
these other cases, there is no apparent justification for petitioner's
failure to reveal the existence of the prosecution's alleged promise
to stand mute at his sentencing.

   /5/ Petitioner refers (Pet. 20) to a letter from another defense
attorney that supposedly supports his claim.  But formal affidavits,
not informal statements in a letter, generally are needed to call into
question the accuracy of statements made in a Rule 11 colloquy.

   /6/ Petitioner claims (Pet. 14-15) that it is unfair to draw an
adverse inference from his failure to object at the sentencing hearing
because he might not have known of his right to object.  First,
petitioner has not alleged that he did not know of this right.
Second, petitioner's observation does not apply to his silence at the
Rule 11 proceeding, in which he was specifically asked whether any
other promises were made by the government.  Finally, this observation
does not apply to petitioner's attorney, who surely knew of his right
to object.  Since the question here is whether the affidavits
submitted by petitioner constitute credible third-party evidence of
the alleged promise and one of those affidavits was submitted by
petitioner's attorney, his failure to object is especially relevant in
determining whether an evidentiary hearing was warranted.

   /7/ Petitioner claims that the decision below conflicts with many
decisions of other courts of appeals.  As we have discussed (see note
3), most of these decisions have been undercut by this Court's
decision in Blackledge.  The post-Blackledge decisions in which courts
have found that an evidentiary hearing was appropriate on the basis of
third-party evidence are distinguishable from the decision below
because the credibility of the third-party affidavits in those cases
was not undercut by factors such as those present here.  United States
v. McCord, 618 F.2d at 393-394 (affidavit submitted by law enforcement
officer;  alleged breach by prosecution did not concern the
government's stance at sentencing and the defendant therefore did not
have an opportunity to object to the prosecution's conduct);  United
States v. Marzgliano, 588 F.2d at 398-399 (affidavit submitted by
attorney that represented co-defendant;  defendant's silence justified
because he followed course of action suggested by his attorney);
Dugan v. United States, 521 F.2d at 233 (same facts as McCord);  see
also Vandenades v. United States, 523 F.2d 1220 (5th Cir. 1975)
(letter from sentencing judge found to cast doubt on validity of
guilty plea;  evidentiary hearing needed in any event to clarify
ambiguity of sentence imposed upon the defendant).

   Other cases cited by petitioner simply are not relevant to the
issue presented here.  See, e.g., Downs-Morgan v. Unite States, 765
F.2d 1534 (11th Cir. 1985) (hearing warranted on defendant's claim
that his guilty plea was the result of ineffective assistance of
counsel);  United States v. Crooker, 729 F.2d 889 (1st Cir. 1984)
(requiring evidentiary hearing on defendant's Rule 32(d) motion where
third-party affidavit contained factual allegations that established
an entrapment defense and indicated that the government was obligated
to disclose the relevant information under United States v. Agurs, 427
U.S. 97 (1976));  United States v. Roberts, 570 F.2d 999 (D.C. Cir.
1977) (district court should have granted defendant's motion to
withdraw guilty plea prior to sentencing where the government conceded
that all of the provisions of the plea agreement had not been
disclosed in the Rule 11 proceeding);  McAleny v. United States, 539
F.2d 282 (1st Cir. 1976) (affirming district court's finding -- made
after an evidentiary hearing -- that the defendant's guilty plea was
not voluntary).

   /8/ The Sixth Circuit has not adopted a different local rule.

   /9/ Petitioner argues that Rule 26(c) of the Federal Rules of
Appellate Procedure should have been applied here.  But that rule by
its terms only increases the time for filing a pleading "(w)henever a
party is required or permitted to do an act within a prescribed period
after service of a paper upon that party, and the paper is served by
mail." It thus does not apply to the time limit in Rule 40(a) which
runs from "entry of judgment," not from service of the court's
decision.

   Petitioner's reliance on Rosenbloom v. United States, 355 U.S. 80
(1957) also is misplaced.  That decision rested on the fact that
petitioner had no notice at all of the act that began the running of
the time for filing a notice of appeal;  petitioner concededly had
notice of the entry of the court of appeals' judgment.

   /10/ The court of appeals' analysis of this part of the Strickland
inquiry (see Pet. App. 24) appears to be based on the misconception
that a defendant's sentence may be enhanced under Section 841(b)(1)(B)
if the subsequent charges are still pending when the prior conviction
is affirmed.  In fact, the statute requires that the subsequent
offense be "commit(ted) * * * after" the prior conviction becomes
final.

   APPENDIX