United States District Court, N.D. Iowa, Eastern Division
WILLIAMS, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's Motion to
Withdraw Guilty Plea. (Doc. 57). After being granted an
extension of time, the government filed a timely resistance.
(Docs. 60, 61, & 64). In his motion, defendant asserts
his former counsel David Mullin (“Mullin” or
“former counsel”) rendered ineffective assistance
during the plea agreement process. Specifically, defendant
asserts former counsel failed to sufficiently investigate the
allegations against defendant, failed to fully explain the
consequences of the plea agreement, and failed to give
defendant sufficient time to understand the terms of the plea
agreement. (Id., at 2). Defendant now maintains that
he is innocent of the bank robbery charged in the indictment.
(Doc. 2). For the following reasons, the Court
denies defendant's motion.
February 5, 2019, a grand jury charged defendant with one
count of bank robbery in violation of 18 U.S.C. §
2113(a). (Doc. 2). On February 11, 2019, defendant was
arrested, and Mullin was appointed to represent defendant.
(Docs. 6 & 7). That same day, defendant appeared before
United States Magistrate Judge Mark A. Roberts and entered a
plea of not guilty. (Doc. 10). On February 13, 2019,
defendant was ordered detained pending trial. (Docs. 15 &
16). On March 21, 2019, the Court granted defendant's
motion to continue trial. (Docs. 17 & 18). On June 10,
2019, the Court denied defendant's second request for a
continuance. (Docs. 27 & 28). Trial was scheduled for the
week of July 1, 2019. (Doc. 26).
25, 2019, defendant changed his plea to guilty and the Court
accepted the plea agreement between the parties. (Docs. 39,
41, & 43). On July 11, 2019, Mullin moved to withdraw as
counsel at defendant's request. (Doc. 45). On July 17,
2019, the Court granted Mullin's motion to withdraw and
appointed new counsel to defendant. (Docs. 48 & 49). On
July 22, 2019, defendant moved to extend time to withdraw his
guilty plea. (Doc. 51). On July 24, 2019, the Court granted
defendant an extension to August 22, 2019. (Doc. 52). On
August 23, 2019, defendant filed an untimely request for
further extension of the deadline. (Doc. 55). On August 29,
2019, the Court granted defendant an extension to September
23, 2019. (Doc. 56). On September 23, 2019, defendant moved
to withdraw his guilty plea. (Doc. 57). On October 4, 2019,
defendant's second appointed counsel was terminated, and
defendant was again appointed new counsel. (Doc. 62).
defendant has no absolute right to withdraw a guilty plea.
See United States v. Nichols, 986 F.2d 1199, 1201
(8th Cir. 1993). A district court may allow a defendant to
withdraw his guilty plea if he shows a “fair and just
reason, ” Fed. R. Crim. P. 11(d)(2)(B), but a guilty
plea should not “be set aside lightly.”
United States v. Prior, 107 F.3d 654, 657 (8th Cir.
1997). “‘The defendant bears the burden of
showing fair and just grounds for withdrawal.'”
United States v. Rollins, 552 F.3d 739, 741 (8th
Cir. 2009) (quoting United States v. Mugan, 441 F.3d
622, 630-31 (8th Cir. 2006)). “When a defendant has
entered a knowing and voluntary plea of guilty at a hearing
at which he acknowledged committing the crime, ‘the
occasion for setting aside a guilty plea should seldom
arise.'” United States v. Morrison, 967
F.2d 264, 268 (8th Cir. 1992) (quoting United States v.
Rawlins, 440 F.2d 1043, 1046 (8th Cir. 1971)).
“Even if such a fair and just reason exists, before
granting the motion a court must consider ‘whether the
defendant asserts his innocence of the charge, the length of
time between the guilty plea and the motion to withdraw it,
and whether the government will be prejudiced if the court
grants the motion.'” United States v.
Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006)
(quoting Nichols, 986 F.2d at 1201). “Where
the court sees no fair and just reason to permit withdrawal,
however, these additional matters need not be
defendant asserts his guilty plea should be set aside due to
ineffective assistance rendered by former counsel. Defendant
alleges ineffective assistance for two reasons. First,
defendant argues former counsel failed to sufficiently
investigate the allegations against defendant. (Doc. 57, at
2). Specifically, defendant asserts he told former counsel
that he was incapable of committing the bank robbery due to
his multiple sclerosis. (Id., at 5). Defendant notes
that he has had two hip replacement surgeries, one before and
one after the alleged robbery. (Id.). During his
investigation, former counsel met with defendant's
surgeon, Dr. Richard Naylor (“Dr. Naylor”) and
showed Dr. Naylor three still photographs of the bank robbery
for purposes of identification. (Id.). Defendant
asserts that former counsel's failure to show Dr. Naylor
a full video of the robbery prevented Dr. Naylor from
assessing the robber's movement and whether defendant was
capable of such movement in light of his medical condition.
defendant asserts former counsel failed to adequately explain
the terms of the plea agreement and failed to give defendant
sufficient time to review the plea agreement. Defendant
alleges there was “much confusion” between the
government and former counsel regarding sentencing guideline
calculations in the plea agreement. (Doc. 57, at 4). This
confusion, defendant alleges, caused former counsel to
present the final plea agreement to defendant less than a day
before defendant's change of plea hearing.
(Id.). Defendant alleges former counsel did not
fully explain the consequences of the plea agreement,
particularly in light of defendant's limited reading
ability. (Id., at 6). Although defendant
acknowledges the Court took steps to ensure defendant
understood the terms of the plea agreement, defendant asserts
the Court “did not understand the profundity of
[defendant's] inability to comprehend the language
particular to that legal proceeding.” (Id., at
of ineffective assistance of counsel . . . are usually best
litigated in collateral proceedings.”
Ramirez-Hernandez, 449 F.3d at 826-27. The test from
Strickland v. Washington “applies to
challenges to guilty pleas based on ineffective assistance of
counsel.” Hill v. Lockhart, 474 U.S. 52, 58
(1985). Under Strickland, a defendant must show
“that counsel's representation fell below an
objective standard of reasonableness” and that
“there is a reasonable probability that, but for
counsel's errors, [defendant] would not have pleaded
guilty and would have insisted on going to trial.”
Id., at 57, 59. Motions for withdrawal of a guilty
plea based on ineffective assistance of counsel may be denied
when the “claim directly contradicts statements
[defendant] made under oath at his guilty plea hearing . . .
that he was totally satisfied with his attorney's legal
assistance.” United States v. Trevino, 829
F.3d 668, 672 (8th Cir. 2016). “The failure to assert
objections to counsel's performance at the change-of-plea
hearing refutes any claim of ineffective assistance of
counsel as a basis for withdrawing the plea.”
the Court notes that defendant's claim of ineffective
assistance of counsel was not timely asserted and that the
record is not developed on this issue. See Id.
Further, defendant's claim of ineffective assistance of
counsel is directly contradictory to his statement during the
change of plea hearing that he was generally satisfied with
former counsel's services. (Doc. 52, at 7). Despite these
deficiencies, the Court will review defendant's claim in
the interests of justice. See Ramirez-Hernandez, 449
F.3d at 826-27. The Court finds that defendant has failed to
satisfy the Strickland test for ineffective
assistance of counsel.
the record shows that former counsel sufficiently
investigated the allegations against defendant. In its
resistance, the government claims that “[former
counsel's] notes and recollection reflect that he did
show Dr. Naylor the video [of the bank robbery] and discussed
the matter with Dr. Naylor who indicated that he could not
exclude defendant as the person in the video.” (Doc.
64, at 14). Thus, the basis for defendant's ineffective
assistance of counsel claim is factually incorrect.
assuming defendant is correct that former counsel did not
show Dr. Naylor the video, such a failure would not fall
“below an objective standard of reasonableness.”
See Hill, 474 U.S. at 58. Although a video may have
been more effective, former counsel exercised reasonable
diligence in presenting three photographs to Dr. Naylor.
See Laws v. Armontrout, 863 F.2d 1377, 1385-86 (8th
Cir. 1988) (“Counsel need not attain perfection, but he
must exercise reasonable diligence to produce exculpatory
evidence.”) (quotation omitted). The photographs
enabled Dr. Naylor to evaluate the robber's identity and
consider whether defendant would be capable of such activity,
even if Dr. Naylor could not assess the robber's
particular movements. Furthermore, it is unlikely that Dr.
Naylor's assessment of the video would have shifted the
evidence so greatly that former counsel would not have
recommended reaching a plea agreement. See Tran v.
Lockhart, 849 F.2d 1064, 1066-67 (8th Cir. 1988)
(“[W]here the alleged error is a failure to investigate
. . ., the determination whether the error
‘prejudiced' the defendant by causing him to plead
guilty . . . will depend on the likelihood that discovery of
the evidence would have led counsel to change his
recommendation as to the plea.”) (quotation omitted).
As a result, the Court rejects defendant's motion to
withdraw his plea on this basis.
the record shows defendant had sufficient time to review the
plea agreement. The government submitted plea agreements to
defendant on March 20, May 9 (“draft agreement”),
and June 24 (“final agreement”) of 2019. (Doc.
42, at 12, 14). The draft agreement and final agreement were
identical except for the removal of language relating to
timely acceptance of responsibility from the final agreement.
(Id.). On June 23, 2019, defendant and former
counsel met with the government to discuss the draft
agreement. (Doc. 53, at 25). During that meeting, the
government mistakenly represented that defendant's
offense level would be scored at level 34 prior to acceptance
of responsibility. (Doc. 53, at 25-26). The draft agreement
and final agreement, however, both correctly noted that
defendant's offense level would only be 32.
(Id.). The government quickly realized it had
misspoken and promptly reached out ...