United States v. Pedro Perez-Hernandez , 490 F. App'x 275 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10332
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00011-WS-M-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PEDRO PEREZ-HERNANDEZ,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(September 21, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Pedro Perez-Hernandez appeals from the district court’s order denying his
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motion to withdraw his guilty plea. Because we conclude that the district court
did not abuse its discretion in denying the motion, we affirm.
I.
Perez-Hernandez was indicted in January 2011 for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). In June 2011, he
entered a guilty plea pursuant to a written plea agreement. At his plea hearing, the
district court conducted a Rule 11 colloquy and asked Perez-Hernandez whether
he fully understood the charges against him. Perez-Hernandez stated that he did.
He also acknowledged that he was fully satisfied with his counsel’s representation,
and that he had discussed the facts surrounding the charge with counsel. He stated
that he read and reviewed his plea agreement with his counsel and that he fully
understood its terms and conditions, as well as his potential sentence. He agreed
that he committed the acts comprising his charge and confirmed that no one had
coerced him into pleading guilty.
In October 2011, two days before his sentencing hearing, Perez-Hernandez
filed a pro se motion seeking dismissal of his counsel, contending that his counsel
coerced him into pleading guilty despite his innocence. He did not at this time
move to withdraw his guilty plea. At a hearing on the matter, Perez-Hernandez’s
counsel moved to withdraw, and the district court granted the motion. The court
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appointed a new attorney to represent Perez-Hernandez and reset the sentencing
hearing.
On November 28, 2011— five months after he entered his guilty plea —
Perez-Hernandez, through counsel, moved to withdraw his plea. He contended
that, due to ineffective assistance of his original counsel, he did not understand his
plea and he acted under duress. The district court found that these arguments were
insufficient to satisfy Perez-Hernandez’s burden under Federal Rule of Criminal
Procedure 11(d)(2)(B) and ordered Perez-Hernandez to supplement his motion.
Specifically, the court instructed Perez-Hernandez to explain how his original
counsel was ineffective and why he answered the court’s Rule 11 colloquy
questions falsely.
Counsel for Perez-Hernandez supplemented the motion as the court
requested. Counsel noted that Perez-Hernandez continued to file pro se motions,
without notifying counsel, reiterating his argument that he was coerced by his
original counsel into pleading guilty. Counsel stated that Perez-Hernandez was
“confused and scared to go against his prior attorney’s advice,” and that he
“complains of very limited time with the prior attorney.” Noting that Perez-
Hernandez provided only vague allegations of coercion and deficient
representation, the district court denied the motion. This is Perez-Hernandez’s
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appeal.1
II.
We review a district court’s denial of a request to withdraw a guilty plea for
an abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.
2003). “We will reverse a district court’s decision on a motion to withdraw only if
it is arbitrary or unreasonable.” United States v. Najjar, 283 F.3d 1306, 1307
(11th Cir. 2002).
III.
Federal Rule of Criminal Procedure 11(d) provides that a defendant may
withdraw a guilty plea “after the court accepts the plea, but before it imposes
sentence [sic] if the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant
has met this burden, a district court “may consider the totality of the circumstances
surrounding the plea,” including “(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.” United States v.
1
To the extent Perez-Hernandez asserts an independent claim for ineffective assistance of
counsel during his guilty plea, we decline to consider it because the record is insufficiently
developed. See United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
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Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988) (internal citation omitted). “The
good faith, credibility and weight of a defendant’s assertions in support of a
motion [to withdraw a guilty plea] are issues for the trial court to decide.” Id. at
472. And “[t]he longer the delay between the entry of the plea and the motion to
withdraw it, the more substantial the reasons must be as to why the defendant
seeks withdrawal.” Id. at 473.
Here, the district court did not abuse its discretion in denying Perez-
Hernandez’s motion to withdraw his guilty plea. Importantly, Perez-Hernandez
waited five months after pleading guilty to move to withdraw his plea and did not
raise it when he filed his motion to remove counsel. When he later sought to
withdraw his plea, instead of providing substantial reasons for his need to do so,
Perez-Hernandez offered conclusory allegations about his original counsel’s
deficiency. Perez-Hernandez did not clarify how his counsel was coercive or
otherwise deficient. And, although he stated that he was confused and afraid, he
did not describe the nature of his confusion or the source of his fear.
Further, Perez-Hernandez never explained why he testified, unequivocally,
that he understood the nature of the charge against him, that he agreed with the
government’s factual proffer, and that he received adequate counsel. We generally
presume that statements made at a plea colloquy are true. United States v.
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Medlock, 12 F.3d 185, 187 (11th Cir. 1994). In light of these statements, which
Perez-Hernandez has not contradicted with any specificity, the district court
reasonably found that Perez-Hernandez’s guilty plea was made knowingly,
voluntarily, and with close assistance of counsel. See Buckles, 843 F.2d at 471-72.
The district court also reasonably determined that its decision would conserve
judicial resources and avoid undue prejudice to the government: if the court
granted the motion, the court and the government would have to prepare for trial
several months after Perez-Hernandez’s case was removed from the trial docket.
See id.
Because the district court reasonably considered the totality of the
circumstances, we affirm the district court’s denial of Perez-Hernandez’s motion
to withdraw his guilty plea.
AFFIRMED.
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