United States v. John Henry Moore , 194 F. App'x 630 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 24, 2006
No. 06-10539 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00192-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN HENRY MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 24, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
John Henry Moore appeals his conviction following a guilty plea for bank
robbery by force, violence, or intimidation, in violation of 18 U.S.C. § 2113(a).
On appeal, Moore argues that the district court abused its discretion by denying his
motion to withdraw his guilty plea on the grounds that it had not been intelligently
and voluntarily made. Moore asserts that the plea was not intelligent and voluntary
because his counsel was deficient for not advising him of the defense of bank
larceny.
We “review the denial of a request to withdraw a guilty plea for abuse of
discretion.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006),
(quoting United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003)). A
decision regarding a plea withdrawal request is not an abuse of discretion unless it
is arbitrary or unreasonable. Id.Rule 11 requires a district court, before it accepts a plea of guilty, to inform
the defendant of, and determine that the defendant understands, his rights relevant
to his plea of guilty. Fed. R. Crim. P. 11(b). After the district court has accepted a
defendant’s plea, but before sentencing, a defendant may withdraw his guilty plea
if he “can show a fair and just reason for requesting the withdrawal.”
Fed.R.Crim.P. 11(d)(2)(B). The provisions of this rule should be “liberally
construed.” United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996).
However, “[t]here is no absolute right to withdraw a guilty plea.” United States v.
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Medlock, 12 F.3d 185, 187 (11th Cir. 1994). “The good faith, credibility and
weight of a defendant’s assertions in support of a motion [to withdraw] are issues
for the trial court to decide.” United States v. Buckles, 843 F.2d 469, 472 (11th
Cir. 1988).
In determining if the defendant has met his burden for withdrawal, “a district
court may consider the totality of the circumstances surrounding the plea,”
including the following factors: “(1) whether close assistance of counsel was
available; (2) whether the plea was knowing and voluntary; (3) whether judicial
resources would be conserved; and (4) whether the government would be
prejudiced if the defendant were allowed to withdraw his plea.” Brehm, 442 F.3d
at 1298 (citing Buckles, 843 F.2d at 472). “There is a strong presumption that
statements made during the [plea] colloquy are true.” Medlock, 12 F.3d at 187.
Consequently, a defendant “bears a heavy burden to show his statements [under
oath] were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
“A plea may be involuntary either because the accused does not understand the
nature of the constitutional protections that he is waiving . . . or because he has
such an incomplete understanding of the charge that his plea cannot stand as an
intelligent admission of guilt.” Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.
1986) (citation omitted).
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We have held that a guilty plea is not knowing and voluntary if the
defendant does not receive “reasonably effective assistance of counsel in
connection with the decision to plead guilty.” McCoy v. Wainwright, 804 F.2d
1196, 1198 (11th Cir. 1986). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated a two-prong test for
determining whether a defendant has been denied effective assistance of counsel.
Id. “First, the defendant must show that the counsel’s performance fell below the
threshold level of competence. Second, the defendant must show that counsel’s
errors due to deficient performance prejudiced his defense such that the reliability
of the result is undermined.” Id. In Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct.
366, 370, 88 L.Ed.2d 203 (1985), the Supreme Court held that the two-part
Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel. The Court held that “in order to satisfy the
prejudice requirement, the 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.” Id. (internal quotations omitted). “[W]here
the alleged error of counsel is the failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of the prejudice inquiry
will depend largely on whether the affirmative defense likely would have
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succeeded at trial.” McCoy, 804 F.2d at 1199 (quoting Hill, 474 U.S. at 59, 106
S.Ct. at 371).
In the instant case, under the first prong of the Buckles analysis, Moore had
the close assistance of counsel because his attorney met with him approximately
five times before the plea hearing and discussed with him the elements of bank
robbery. Although Moore claims that his attorney never discussed the elements of
the offense with him or prepared him for the plea hearing, the district court did not
abuse its discretion in discrediting Moore’s testimony given the attorney’s
testimony that he advised Moore of the elements of bank robbery.
Under the second prong, Moore’s plea was knowing and voluntary, and his
counsel was not ineffective. The district court did not abuse its discretion in
finding that Moore’s attorney did not err in failing to discuss the larceny defense
because Moore’s conduct constituted bank robbery, not bank larceny. In addition,
the district court did not abuse its discretion by relying on Moore’s admissions
made under oath at his plea hearing. The record reflects that the court reviewed the
elements of bank robbery with Moore during the plea hearing, and Moore indicated
that he understood what the government would have to prove at trial. Further,
Moore admitted the facts supporting the elements of the offense. As Moore has
not satisfied the first two prongs of the Buckles analysis, we need not address the
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last two.
In sum, the district court did not abuse its discretion by denying Moore’s
motion to withdraw his guilty plea because his plea was knowing, voluntary, and
counseled, and he did not provide any evidence demonstrating a fair and just
reason for the withdrawal. Accordingly, we affirm his conviction.
AFFIRMED.
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