United States v. Grant , 622 F. App'x 53 ( 2015 )

14-3941
United States v. Grant
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of November, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-3941
16
17 DERRICK GRANT,
18 Defendant-Appellant.
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20
21 FOR APPELLEE: THOMAS A. MCKAY (with Samson A.
22 Enzer and Justin Anderson on the
23 brief), Assistant United States
24 Attorneys, for Preet Bharara,
25 United States Attorney for the
26 Southern District of New York.
27
1
1 FOR DEFENDANT-APPELLANT: LOUIS R. AIDALA, Baratta,
2 Baratta & Aidala LLP, New York,
3 New York.
4
5 Appeal from a judgment of the United States District
6 Court for the Southern District of New York (McMahon, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Defendant Derrick Grant appeals from a judgment of
13 conviction and sentence entered by the United States
14 District Court for the Southern District of New York
15 (McMahon, J.). The defendant challenges the conviction on
16 the grounds that (1) the district court committed plain
17 error in denying defendant's motion to withdraw his guilty
18 plea; and (2) prior counsel rendered ineffective assistance
19 of counsel by neglecting to advise that Grant could withdraw
20 his guilty plea before the plea was accepted by the district
21 court. We assume the parties’ familiarity with the
22 underlying facts, the procedural history, and the issues
23 presented for review.
24
25 1. Plain error review permits relief only where (1)
26 there is “error,” (2) the error “is plain,” (3) the
27 error “affect[s] substantial rights,” and (4) the error
28 “seriously affect[s] the fairness, integrity, or
29 public reputation of judicial proceedings.” United States
30 v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (quoting
31 Johnson v. United States, 520 U.S. 461, 466–67 (1997)).
32 Under this standard, we conclude there is no error.
33
34 Grant entered a guilty plea before a magistrate judge
35 on November 5, 2013, and although there was initially
36 confusion about the date the plea was adopted by the
37 district court, Judge McMahon clarified that she adopted the
38 plea on July 31, 2014. Defendant contends that a letter
39 from prior counsel (sent on July 21, 2014) constituted a
40 withdrawal of his guilty plea. The district court, however,
41 construed the July 21 letter as a request for the
42 appointment of counsel to advise defendant about a potential
43 motion to withdraw, not as a motion to withdraw. Defendant
44 contends that this was plain error. Under Rule 11(d)(1) of
45 the Federal Rules of Criminal Procedure (the “Rules”),
46 “before the court accepts the plea,” a defendant may
47 withdraw a guilty plea “for any reason or no reason.”
2
1 However, under Rule 11(d)(2), a guilty plea, once accepted
2 by the court, may only be withdrawn if the defendant "can
3 show a fair and just reason." If the July 21 letter did in
4 fact constitute a withdrawal, then defendant argues that he
5 had an absolute right to withdraw at that time because his
6 plea had not been “accepted” by an Article III district
7 judge.1
8
9 As the district court observed, the letter was
10 "entirely too equivocal to qualify as a motion to withdraw."
11 The letter unambiguously states at the beginning that
12 "Derrick Grant wants to withdraw his guilty plea," but the
13 rest of the letter qualifies that statement. Withdrawal is
14 framed in contingent terms: "if he wants to proceed with
15 this request” and specifically requests new counsel "to
16 advise him about an application to withdraw his plea." The
17 letter specified that current counsel “remain willing and
18 able to represent” defendant in sentencing “[i]f after
19 consulting with new counsel, Mr. Grant decides to proceed to
20 sentencing on the guilty plea.” If the letter itself was a
21 withdrawal, there would have been no need to consider the
22 possibility of proceeding to sentencing on a withdrawn
23 guilty plea.
24
25 The letter contemplates a motion to withdraw but
26 constitutes no more than a request for new counsel to be
27 appointed to advise defendant about a future motion to
28 withdraw. Such a reading is consistent with how defense
29 counsel characterized the letter on the docket, which was as
30 a "LETTER MOTION" regarding "Appointment of New Counsel,"
31 and is also how the district court construed the letter in
32 the first instance--prior to any controversy about
33 withdrawal as of right--when the request for new counsel was
34 denied by memo endorsement.
1
We do not decide whether a magistrate judge has
the constitutional authority to “accept” a plea within the
meaning of Rule 11. See United States v. Williams, 23 F.3d
629, 634 (2d Cir. 1994) (rejecting constitutional challenge
to magistrate judges performing Rule 11 plea allocutions);
see also United States v. Benton, 523 F.3d 424 (4th Cir.
2008) (rejecting constitutional challenge to magistrate
judges accepting pleas within the meaning of Rule 11).
Because the magistrate judge here “recommended” that the
plea be accepted, but did not himself purport to accept the
plea under Rule 11, we need not reach the issue.
3
1 Because the July 21 letter was neither a withdrawal nor
2 a request to withdraw, the guilty plea was accepted by the
3 district court before defendant actually moved for
4 withdrawal.2 Rule 11(d)(2) therefore controls, which
5 requires a "fair and just reason" before a guilty plea may
6 be withdrawn. Defendant concedes that he cannot satisfy the
7 "fair and just reason" standard, and so the judgment of the
8 district court must be affirmed.
9
10 2. Defendant contends that he was denied effective
11 assistance of counsel because prior counsel did not strictly
12 adhere to Grant's wishes by attempting to withdraw the plea
13 as of right before the district court adopted it. In order
14 to establish such a violation, a defendant must show that
15 (1) "counsel's performance was deficient" such that "counsel
16 was not functioning as the 'counsel' guaranteed the
17 defendant by the Sixth Amendment;” and (2) "the deficient
18 performance prejudiced the defense," such that "there is a
19 reasonable probability that, but for counsel's
20 unprofessional errors, the result of the proceeding would
21 have been different." Strickland v. Washington, 466 U.S.
22 668, 687, 694 (1984).
23
24 “When faced with a claim of ineffective assistance of
25 counsel on direct appeal, we may: (1) decline to hear the
26 claim, permitting the appellant to raise the issue as part
27 of a subsequent petition for writ of habeas corpus pursuant
28 to 28 U.S.C. § 2255; (2) remand the claim to the district
29 court for necessary factfinding; or (3) decide the claim on
30 the record before us." United States v. Morris, 350 F.3d
31 32, 39 (2d Cir. 2003). We decline to review defendant's
32 claim of ineffective assistance of counsel on the inadequate
33 record now before us. Defendant may pursue this claim in a
34 § 2255 petition. See United States v. Khedr, 343 F.3d 96,
35 100 (2d Cir. 2003).
36
37
2
Defendant does not contend that the district judge
abused its discretion in accepting the plea at a time when
he could have withdrawn the plea unilaterally and it was
evident to the court that he was taking counsel about
whether to do so. Accordingly, we have no occasion to
address that issue.
4
1 For the foregoing reasons, and finding no merit in
2 defendant’s other arguments, we hereby AFFIRM the judgment
3 of the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
5