Criminal – Guilty Plea Withdrawal – Counsel Withdrawal

A Richmond U.S. District Court denies defendant’s motion to withdraw his guilty plea after the court has allowed his lawyer to withdraw as counsel; although defendant claims his lawyer threatened him and made promises to force him to plead guilty, the court finds defendant has provided no evidence that his plea was either unknowing or involuntary, he had the assistance of competent counsel and withdrawal of his plea would be a waste of judicial resources.

Defendant asserts his plea was not voluntary because he was obeying the instructions of his attorney and because he was threatened. In this case, his former counsel advised defendant of the plea process and anticipated Rule 11 questions. This, of course, is a necessary part of representation, as is an explanation of the legal and practical consequences of a plea of guilty. Considering that the defendant admitted to possession of the firearm in issue, recommending a guilty plea would not be unsound advice from counsel. Also, during the plea colloquy, defendant confirmed that he had made the decision for himself. Thus, the court finds that defendant’s guilty plea was inspired by a realistic assessment of the consequences he faced, and not by force or intimidation.

Given the overwhelming evidence of guilt, this court finds that defendant has made no credible assertion of his actual innocence. Defendant waited over two months before filing his first of two motions to withdraw his guilty plea. In U.S. v. Moore, 931 F.2d 245 (4th Cir. 1991), the court found that waiting six weeks before asking to withdraw a guilty plea was too long of a delay to withdraw a plea. This court finds that a similarly long-term delay exists here.

Defendant admitted to possession of the firearm to a police officer while in custody. Under these circumstances, the court does not find it objectively unreasonable that an attorney would counsel his client to plead guilty. Also, defendant’s complaints about his former lawyer’s alleged coercion relate to his representation up to the date of the plea hearing. At the hearing, he confirmed his satisfaction with the lawyer’s representation. The lawyer’s alleged failure to provide defendant with a copy of the search warrant affidavit is not an error.

Motion to withdraw guilty plea to firearm possession charge is denied.
U.S. v. Tucker (Hudson, J.) No. 3:09cr298, March 8, 2010; USDC at Richmond, Va. VLW 010-3-117, 8 pp.