United States v. Marrero , 57 F. App'x 905 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-7-2003
USA v. Marrero
Precedential or Non-Precedential: Non-Precedential
Docket 02-1393
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Marrero" (2003). 2003 Decisions. Paper 897.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/897
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 02-1393
__________
UNITED STATES OF AMERICA
v.
ANTHONY MARRERO,
Appellant
__________
On Appeal from the District Court
of the Virgin Islands
(Criminal No. 99-cr-00057-1)
District Judge: Honorable Raymond L. Finch
__________
Argued on November 14, 2002
Before: SCIRICA, ALITO, and RENDELL, Circuit Judges
(Filed January 7, 2003)
Stephen A. Brusch, Esq. [ARGUED]
International Plaza
P. O. Box 988
Charlotte Amalie, St. Thomas
USVI 00804
Counsel for Appellant
Tracey Christopher, Esq. [ARGUED]
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI 00820
Counsel for Appellee
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Anthony Marrero appeals from the District Court’s refusal to vacate the judgment
order based on his guilty plea.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and review the District Court’s order for abuse of discretion.
United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). We will affirm.
Marrero was charged with being a felon in possession of a firearm and ammunition.
He was present on the balcony of a third floor condominium unit at Colony Cove
Condominium Complex on St. Croix, Virgin Islands, when agents of the Virgin Islands High
Intensity Drug Trafficking Area Task Force executed a search warrant. As the agents were
entering the building, they observed a Glock 17 handgun being thrown from the third floor
balcony. Marrero was thereafter found to be in possession of a black holster and two fully-
loaded Glock magazines matching the firearm thrown from the balcony. Marrero and
several others were arrested. Marrero pled guilty after being advised by his counsel that the
government would withdraw the plea offer if not agreed to by the next day. Marrero’s
standard plea colloquy included questions regarding the knowing and voluntary nature of the
plea. Thereafter, his co-defendant brother lodged a successful challenge in the trial court
-2-
to the search based on lack of probable cause for the issuance of the warrant.
Marrero then sought to withdraw his guilty plea based upon his desire to lodge a
similar challenge to the search warrant as lacking probable cause. Marrero’s counseled
motion stated that Marrero was not asserting his innocence but wanted to object to the
unreasonable search and seizure in violation of his Fourth Amendment rights under the
Constitution.
In denying Marrero’s motion to vacate his guilty plea, the District Court evaluated
the three factors set forth in United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992): 1)
whether Marrero asserted his innocence, 2) whether the government would be prejudiced
by his withdrawal, and 3) the strength of Marrero’s reasons to withdraw. Regarding the first
prong, the Court noted that although Marrero orally asserted his innocence at the hearing,
in his written motion, Marrero had not asserted his innocence, nor did he ever explain why
he had taken contradictory positions before the Court. The Court then found that Marrero
was really only arguing that his plea should be vacated on the grounds that the search
violated his Fourth Amendment rights. The Court held that under Tollet v. Henderson, 411
U.S. 258 (1973), the guilty plea constituted a waiver of all claims of deprivation of a
constitutional right that may have occurred prior to its entry. The Court concluded that
Marrero had not asserted sufficient grounds for permitting withdrawal of his plea because
he had failed to satisfy the innocence and strong reasons prongs of Jones, and that,
accordingly, the government need not satisfy the final prong, namely, prejudice.
Marrero then requested reconsideration, contending that his plea was not entered
-3-
knowingly and voluntarily because he had felt pressured by his counsel and the government.
The motion also urged the Court to consider the claim of innocence he raised at the hearing
and to fault counsel, not Marrero, for his failure to assert his innocence in the motion
originally filed. Marrero then retained new counsel and filed an additional motion for
reconsideration based upon ineffective assistance of counsel and the coercion of his plea.
The District Court denied reconsideration without opinion.
We agree with the District Court’s original opinion concluding that by pleading
guilty Marrero waived his right to object to the search on probable cause grounds, and
finding that the plea colloquy established that his plea was knowing and voluntary.
Marrero’s argument on appeal consists primarily of the claims contained in his motion for
reconsideration, in which he raised, for the first time, the charge based on ineffective
assistance of counsel. We cannot fault the District Court for denying reconsideration when
it was based on an issue not raised in the initial motion to vacate. The purpose of a
reconsideration motion is to correct manifest errors or present newly discovered evidence.
Harasco v. Zlotnick, 779 F.2d 906, 909 (3d Cir. 1985). It thus does not appear that
reconsideration was warranted.
Further, we will not disturb the District Court’s conclusion that Marrero never in
fact asserted his innocence, in light of the inconsistent positions taken by Marrero in the
proceedings, and especially in light of the fact that at the change of plea hearing Marrero
agreed that the government’s rendition of the facts was correct.
With respect to the allegations that counsel was ineffective, we do not normally
-4-
consider such claims on direct appeal, preferring instead that the record be further
developed in habeas corpus proceedings. United States v. Haywood, 155 F.3d 674, 678 (3d
Cir. 1998); United States v. Touby, 909 F.2d 759, 773 n.8 (3d Cir. 1990), aff’d, 111 S. Ct.
1752 (1991). We see no reason to alter that proscription in this case, and therefore
suggest that any claims of ineffective assistance be pursued by way of habeas corpus
review.
Accordingly, the judgment of the District Court will be affirmed.
___________________________
-5-
TO THE CLERK OF COURT:
Please file the foregoing Not Precedential Opinion.
/s/ Marjorie O. Rendell
Circuit Judge
Dated: January 7, 2003