However, his "mere `understanding'" that he would receive a lesser sentence in exchange for a guilty plea will not abrogate that plea should a heavier sentence actually be imposed. See Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987); Smith, 786 F.2d at 701; Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir. 1985); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982). In order for a prisoner to receive federal habeas relief on the basis of alleged promises that are inconsistent with representations made in open court when his guilty plea was accepted, he must "`prove (1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.'"
In his brief to this court, petitioner argues at length that he was denied his right to counsel as guaranteed by the sixth amendment to the United States Constitution. "We do not consider this argument because it is raised for the first time on appeal, and issues so raised are not reviewable by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice." Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985). Because petitioner's sixth amendment claims are neither purely legal nor would it be manifestly unjust for this court to decline to consider them on appeal, we address only the issue of the voluntariness of petitioner's guilty plea.
An accused's mere "understanding" that he will have to serve a lesser sentence, however, will not invalidate a guilty plea. See Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir. 1985); Bradbury, 658 F.2d at 1087. In situations were an actual promise has been made to a petitioner, rather than there being merely an "understanding" on his part, federal habeas relief is awardable if the petitioner "prove[s] `(1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.'"
Appointment of counsel in habeas proceedings is appropriate, however, when "the interests of justice so require and such person is financially unable to obtain representation." Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985) (citing Fifth Circuit Plan Under the Criminal Justice Act, § 2; and 18 U.S.C. § 3006A(2)(B)). The legal principles governing Petitioner's claim are settled.
See Harmason v. Smith, 888 F.2d 1527, 1532 (5th Cir. 1989) (defense counsel's statement that the defendant would probably receive less than a fifteen year sentence did not render the guilty plea involuntary because a "prediction, prognosis, or statement of probabilities . . . does not constitute an `actual promise'."); United States v. Stumpf, 827 F.2d 1027, 1030 (5th Cir. 1987) ("A defendant's reliance on his attorney's erroneous prediction of leniency is not sufficient to render a guilty plea involuntary."); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985) (defense counsel's statement that parole would be probable after 10½ years did not render the guilty plea involuntary because it was a mere prediction, not a guarantee); Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1975) ("Petitioner's allegation of a breached bargain is premised on the alleged statement to him by his own attorney that the sentencing judge generally gave sentences of about 20 years in second degree murder cases and that petitioner, as a first offender, might expect such a sentence. However, a good faith but erroneous prediction of a sentence by a defendant's counsel does not render the guilty plea involuntary.").
A defendant's mere hope that he will not receive a lengthy prison term, or that he will only have to serve a lesser sentence, or that he will receive probation will not invalidate an otherwise voluntary guilty plea. See Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir. 1985). Where an actual promise has been made to a petitioner, rather than there being merely a hope or even an "understanding" on his part, federal habeas relief is available if the petitioner "prove[s] `(1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.'"
Thus, we conclude that the court did not abuse its discretion in denying the motion to appoint appellate counsel. See Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985). F. Reassignment of Case to another District Judge
"[I]ssues raised for the first time on appeal `are not reviewable by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.' " United States, v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)). We direct Robbins's attention to the PLRA's three-strikes provision, 28 U.S.C. § 1915(g).
Likewise, a guilty plea is not rendered involuntary because the defendant's misunderstanding was based on defense counsel's inaccurate prediction that a lesser sentence would be imposed. See Harmason v. Smith, 888 F.2d 1527, 1532 (5th Cir. 1989) (defense counsel's statement that the defendant would probably receive less than a fifteen year sentence did not render the guilty plea involuntary because a "prediction, prognosis, or statement of probabilities . . . does not constitute an `actual promise'."); United States v. Stumpf, 827 F.2d 1027, 1030 (5th Cir. 1987) ("a defendant's reliance on his attorney's erroneous prediction of leniency is not sufficient to render a guilty plea involuntary."); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985) (defense counsel's statement that parole would be probable after 10 ½ years did not render the guilty plea involuntary because it was a mere prediction, not a guarantee); Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1975) ("Petitioner's allegation of a breached bargain is premised on the alleged statement to him by his own attorney that the sentencing judge generally gave sentences of about 20 years in second degree murder cases and that petitioner, as a first offender, might expect such a sentence. However, a good faith but erroneous prediction of a sentence by a defendant's counsel does not render the guilty plea involuntary.").
Matthews v. United States, 569 F.2d 941, 943 (5th Cir. 1978). Cf. Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985) ("Self's `understanding' . . . that he would serve only ten years and six months of a life sentence, does not constitute a promise or a plea bargain, and hence his continued confinement does not demonstrate that a plea bargain was violated. It, therefore, does not undermine the voluntariness of his guilty plea.").