USCA11 Case: 22-11208 Document: 23-1 Date Filed: 01/26/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11208
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE WILLIAMS, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cr-00023-AW-MAF-1
____________________
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2 Opinion of the Court 22-11208
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
George Williams, Jr. appeals his convictions for attempted
production of child pornography and coercion or enticement of a
minor to engage in prostitution. On appeal, he contends that de-
fense counsel was constitutionally deficient, and that the district
court should have allowed him to withdraw his guilty plea.
I.
Claims of ineffective assistance of counsel are mixed ques-
tions of law and fact that we review de novo. See Gordon v. United
States,
518 F.3d 1291, 1296 (11th Cir. 2008) (addressing an ineffec-
tive-assistance-of-counsel claim in the context of a
28 U.S.C. § 2255
motion to vacate).
We will generally not consider claims of ineffective assis-
tance of counsel raised on direct appeal “where the district court
did not entertain the claim nor develop a factual record.” United
States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). Even if the
record includes some indication that an attorney’s performance
was deficient, a
28 U.S.C. § 2255 motion is the preferred means for
deciding an ineffective-assistance-of-counsel claim. United States
v. Patterson,
595 F.3d 1324, 1328 (11th Cir. 2010). A § 2255 hearing
affords the counsel at issue the opportunity to testify and explain
whether “a seemingly unusual or misguided action . . . had a sound
strategic motive or was taken because [the] alternatives were even
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22-11208 Opinion of the Court 3
worse.” Massaro v. United States,
538 U.S. 500, 505 (2003). Fur-
ther, we will not speculate about the effect that counsel’s allegedly
deficient performance had on a defendant’s case. United States v.
Khoury,
901 F.2d 948, 969 (11th Cir. 1990).
However, we will consider an ineffective-assistance claim
on direct appeal where the record is sufficiently developed.
Bender,
290 F.3d at 1284. For example, we resolved an ineffective-
assistance claim on direct appeal where the lower court held an ev-
identiary hearing on the underlying basis for the claim, at which
four witnesses, including the challenged counsel, testified. United
States v. Camacho,
40 F.3d 349, 355 (11th Cir. 1994), overruled on
other grounds by United States v. Sanchez,
269 F.3d 1250 (11th Cir.
2001).
To succeed on an ineffective-assistance claim, a defendant
must show that (1) his attorney’s performance was deficient, and
(2) the deficient performance prejudiced his defense. Strickland v.
Washington,
466 U.S. 668, 687 (1984). Counsel’s performance is
deficient only if it falls below “the range of competence demanded
of attorneys in criminal cases.”
Id. The performance prong “re-
quires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.”
Id. To prove the prejudice prong, a peti-
tioner must show a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have
been different.
Id. at 694. There is a strong presumption that
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4 Opinion of the Court 22-11208
counsel rendered adequate assistance and made all significant deci-
sions in the exercise of reasonable professional judgment.
Id. at
690.
Here, we decline to consider Williams’s ineffective assis-
tance of counsel claim because the record is not developed enough
for us to review it on direct appeal, for several reasons. Bender,
290 F.3d at 1284. First, the underlying motion to withdraw did not
mention Strickland or ineffective assistance of counsel. Second, at
the hearing held on the motion to withdraw, neither counsel nor
the government called defense counsel to testify, despite the attor-
ney’s presence. Third, while Williams testified, he could not testify
as to matters outside his personal knowledge, so the absence of any
testimony from defense counsel left certain matters relating to the
basis for counsel’s decision-making unclear.
II.
We review a district court’s denial of a defendant’s motion
to withdraw a guilty plea for an abuse of discretion. United States
v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006). We will only find
an abuse of discretion where the district court’s denial of the mo-
tion was arbitrary or unreasonable.
Id. There is no abuse of dis-
cretion when the district court conducts extensive inquiries pursu-
ant to Federal Rule of Criminal Procedure 11—informing the de-
fendant of his rights regarding his guilty plea and confirming that
he understands those rights—before accepting the guilty plea.
Id.
(citing Fed. R. Crim. P. 11(b)(1)).
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22-11208 Opinion of the Court 5
An appellant seeking to raise an issue on appeal must clearly
indicate the issue in his brief, devoting a discrete, substantial por-
tion of his brief to that issue, or the issue will be considered aban-
doned. United States v. Jernigan,
341 F.3d 1273, 1283 & n.8 (11th
Cir. 2003).
A defendant may withdraw his guilty plea before sentencing
if he can show a “fair and just” reason for the withdrawal. Id.; Fed.
R. Crim. P. 11(d)(2)(B). We determine whether the reason is fair
and just by considering the totality of the circumstances surround-
ing the plea, specifically inquiring into whether (1) the defendant
had close assistance of counsel, (2) the plea was knowing and vol-
untary, (3) judicial resources would be conserved if the defendant
were permitted to withdraw his guilty plea, and (4) the govern-
ment would be prejudiced if the withdrawal was granted. Brehm,
442 F.3d at 1298.
Within the preceding inquiry, we leave it to the discretion
of the district court to assess the good faith, credibility, and weight
of the defendant’s assertions in support of his motion.
Id. Once
the court determines that the defendant received close assistance
of counsel and entered a knowing and voluntary plea, the third and
fourth factors are not given considerable weight. United States v.
Gonzalez-Mercado,
808 F.2d 796, 801 (11th Cir. 1987). There is a
strong presumption that the defendant’s statements during a plea
colloquy are true.
Id. at 800 n.8.
Here, the district court did not abuse its discretion in deny-
ing Williams’s motion to withdraw his guilty plea. Brehm,
442 F.3d
at 1298. First, the record shows that Williams received close
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6 Opinion of the Court 22-11208
assistance of counsel.
Id. Further, to the extent Williams does not
challenge the district court’s determinations as to the remaining
three factors now on appeal, any argument in those respects is
abandoned. Jernigan,
341 F.3d at 1283 & n.8. In any event, the
record also supports the district court’s findings in this regard, in-
cluding how Williams’s guilty plea was knowing and voluntary.
Brehm,
442 F.3d at 1298. Thus, we affirm in this respect as well.
AFFIRMED.
