Denial of Motion to Withdraw Guilty Plea Upheld
U.S. v. Hamilton, --- F.3d ----, 2007 WL 4393257 (10th Cir. Dec. 18, 2007)
The 10th upholds the district court’s denial of D’s motion to withdraw his plea based on ineffective assistance of counsel (no abuse of discretion in denying the motion). (D pleaded guilty to drugs and gun+drugs). The 10th reached the IAC merits because the district court held a hearing on D’s claim that he entered a plea based upon erroneous information given to him by his attorney that he was not looking at sentencing as a career offender–it was the rare case where a record was sufficiently developed for review.
Under R. 11, D must show a fair and just reason for withdrawing his plea. Of the 7 parts of the “test” to determine if the D met his burden, the court looks at, among other things, D’s claim of innocence and the assistance he had from counsel. D raised “legal innocence”–a 4A violation. This is generally enough but it must be a credible claim, and he presented no factual argument in support of his 4A claim. Even though he now said his attorney failed to raise a suppression issue and was therefore ineffective, he did not claim ineffectiveness on THIS ground below. Moreover, on the gun count, even though D argued innocence because the gun was not found near the drugs, the 10th said that he cannot show innocence because, in part, he “has not repudiated his admission of guilt.” (Even though he was trying to withdraw his guilty plea....)
Under the straight constitutional IAC claim, D did not meet the prejudice prong because the plea document and colloquy indicated he knew his attorney could not promise a sentence and that the ultimate sentence was left to the judge. His current allegation that he would have gone to trial but for his attorney's failure to advise him of the career-offender provision, in the face of the record, was insufficient to establish prejudice. For the same reason, his voluntariness claim fails.
Finally, the within GL sentence was reasonable, and the 10th reaffirms that any challenge to procedural reasonableness must be made contemporaneously or it will be reviewed for plain error.
The 10th upholds the district court’s denial of D’s motion to withdraw his plea based on ineffective assistance of counsel (no abuse of discretion in denying the motion). (D pleaded guilty to drugs and gun+drugs). The 10th reached the IAC merits because the district court held a hearing on D’s claim that he entered a plea based upon erroneous information given to him by his attorney that he was not looking at sentencing as a career offender–it was the rare case where a record was sufficiently developed for review.
Under R. 11, D must show a fair and just reason for withdrawing his plea. Of the 7 parts of the “test” to determine if the D met his burden, the court looks at, among other things, D’s claim of innocence and the assistance he had from counsel. D raised “legal innocence”–a 4A violation. This is generally enough but it must be a credible claim, and he presented no factual argument in support of his 4A claim. Even though he now said his attorney failed to raise a suppression issue and was therefore ineffective, he did not claim ineffectiveness on THIS ground below. Moreover, on the gun count, even though D argued innocence because the gun was not found near the drugs, the 10th said that he cannot show innocence because, in part, he “has not repudiated his admission of guilt.” (Even though he was trying to withdraw his guilty plea....)
Under the straight constitutional IAC claim, D did not meet the prejudice prong because the plea document and colloquy indicated he knew his attorney could not promise a sentence and that the ultimate sentence was left to the judge. His current allegation that he would have gone to trial but for his attorney's failure to advise him of the career-offender provision, in the face of the record, was insufficient to establish prejudice. For the same reason, his voluntariness claim fails.
Finally, the within GL sentence was reasonable, and the 10th reaffirms that any challenge to procedural reasonableness must be made contemporaneously or it will be reviewed for plain error.
posted by Anonymous at 3:33 PM
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