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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11822
Non-Argument Calendar
________________________
D.C. Docket No. 3:16-cr-00054-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS G. PEACOCK,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 11, 2021)
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Nicholas Peacock, a pro se federal prisoner, appeals following his
conviction on a guilty plea to two felony counts—enticing a minor to engage in
sexual activity, and travelling for illicit sexual activity with a person under the age
of 16. On appeal, he appears to argue that his guilty plea was involuntarily and
unknowingly made. The government responds that Peacock has abandoned this
point on appeal and—assuming arguendo that he did not abandon it—that any
arguments that the plea was involuntary or that the District Court abused its
discretion in denying Peacock’s motions to withdraw the plea are meritless. While
we disagree that Peacock has abandoned these arguments, we nevertheless
conclude that Peacock’s plea was voluntarily and knowingly made. Likewise, we
find no abuse of discretion in the District Court’s denials of Peacock’s motions to
withdraw his plea. We accordingly affirm.
I.
On June 21, 2016, a federal grand jury for the Northern District of Florida
indicted Peacock for enticing a minor to engage in sexual activity, in violation of
18 U.S.C. § 2422(b) (Count 1), and travelling for illicit sexual activity with a
person under the age of 16, in violation of
18 U.S.C. § 2423(b) (Count 2).
Following his initial appearance, Peacock was appointed counsel, and in October
2016, Peacock’s attorney moved the District Court to hold a hearing to determine
whether Peacock was competent to stand trial. In a pretrial evaluation report, a
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psychologist hired by defense counsel determined that Peacock was incompetent to
stand trial due to psychosis and paranoid delusions. But a court-appointed
psychologist disagreed in light of Peacock’s “thorough understanding of legal
concepts” and his “ability to apply this knowledge to the facts of his own case.”
Relying on the court-appointed psychologist, the District Court found Peacock
competent.
In June 2017, Peacock’s attorney requested a Faretta 1 hearing after Peacock
indicated that he wished to represent himself, and in July 2017, the attorney again
moved for a mental evaluation, as Peacock had been placed on suicide watch in
jail. Then, interestingly, the same psychologist defense counsel previously hired—
who had found Peacock incompetent—conducted another mental evaluation,
changed her opinion, and found him competent.
The Faretta and competency hearings were held conjunctively. The District
Court first found that Peacock was competent to stand trial based on the three
psychological reports that were submitted, stating that Peacock’s contemplations of
suicide did not amount to an incapacity to appreciate the reality of his situation.
1
Before a court allows a criminal defendant to proceed pro se, the defendant must clearly
and unequivocally assert his right of self-representation. See Faretta v. California,
422 U.S. 806,
835,
95 S. Ct. 2525, 2541 (1975). A Faretta hearing is thus conducted when a criminal
defendant wishes to represent himself and waive court appointed counsel.
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The District Court then denied Peacock leave to proceed pro se because his waiver
of counsel was not unequivocal.
So, in July 2017, Peacock pled guilty to both counts in the indictment
pursuant to a written plea agreement. Importantly, the plea agreement itself stated
that Peacock was pleading guilty because he was “in fact guilty of the charges
alleged.” The agreement likewise noted that Peacock was pleading guilty
voluntarily, knowingly, and with the advice of counsel.
At the Federal Rule of Criminal Procedure 11 plea hearing, the District
Court placed Peacock under oath and informed him that, should he not tell the truth
during his plea colloquy, he could be subjected to a perjury charge. The Court
confirmed that Peacock graduated from high school and even attended some
college courses. Peacock then stated that he had enlisted in the Navy for a short
period of time, and after his discharge, held a few other jobs. He denied being on
any medications that would impair his capacity to think clearly.
As the hearing continued, the District Court confirmed that Peacock signed
the plea agreement with the assistance of counsel. It explained to Peacock the
charges he faced, listing both the elements and possible penalties for each charge;
Peacock confirmed that he understood the elements and penalties. The District
Court next ensured that Peacock understood that, by pleading guilty, he waived his
right to trial and other constitutional trial rights. Then, the Court confirmed that
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Peacock and his attorney spoke about the plea agreement and the rights he would
be giving up as a result.
With that taken care of, the District Court next asked Peacock to confirm the
factual basis for his plea. At this point, Peacock began to push back. The
government and the District Court then agreed that if Peacock continued to fight
the factual basis for his plea, Peacock would need to proceed to trial. Peacock’s
attorney attempted to explain why Peacock was pushing back against the facts, but
the District Court stated that it did not want to take Peacock’s plea if Peacock
himself would not admit to the factual basis and thus fully comprehend the plea.
Peacock subsequently admitted to driving from North Carolina to Florida to meet a
twelve-year-old girl that he wanted to have sex with. So, the District Court again
asked Peacock if the factual basis for the plea documents was true, and Peacock
finally conceded that it was.
The District Court—wanting to ensure that Peacock was pleading guilty
“knowingly and intelligently”—next asked Peacock if anyone (including his
attorney) pressured, threatened, or coerced him to plead guilty. Peacock said that
no one had. The District Court further inquired whether Peacock had any issues
with his attorney that he wanted to bring to the Court’s attention. Again, Peacock
stated that he did not. So, the District Court then informed Peacock that if it
accepted his guilty plea, he would not be able to withdraw the plea “except for
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under very extraordinary circumstances.” The Court also stated that Peacock was
“alert and intelligent such that [he understood] the nature of the charges,” and that
he made the plea “voluntarily of [his] own free will without any threats or pressure
or coercion from anyone else[.]” And, ultimately, the District Court accepted
Peacock’s guilty plea.
But in August 2017, Peacock—proceeding pro se—filed a second request
for a Faretta hearing and moved to withdraw his guilty plea. He claimed that he
had “lied to [the District Court]” and stated that his attorney manipulated,
intimidated, scared, and coerced him into pleading guilty against his will. Peacock
likewise contended that his attorney did not give him discovery or inform him of
any of his rights, so he felt he had “no choice” but to plead guilty. The government
opposed Peacock’s motion to withdraw the guilty plea because it believed Peacock
could not show a “fair and just” reason for the withdrawal.
Peacock’s attorney requested to withdraw from the case in response to
Peacock’s Faretta request. He claimed that irreconcilable differences existed
between he and Peacock, but he contended that he gave Peacock all discovery and
discussed all of the options Peacock had regarding trial and his guilty plea. The
magistrate judge held a hearing on the issue and permitted Peacock to represent
himself. The magistrate did, however, appoint a new attorney to be Peacock’s
standby counsel.
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The District Court then denied Peacock’s motion to withdraw his guilty plea.
The Court noted that Peacock had explicitly acknowledged at his plea hearing that
he waived his right to a trial and his defenses. Likewise, Peacock had
acknowledged and admitted the factual basis for his plea, which he conceded was
not threatened, pressured, or coerced. Peacock had been represented by competent
counsel and, in the District Court’s eyes, was alert and engaged during the plea
hearing, so the Court found that Peacock had not demonstrated a “fair and just
reason” for withdrawing his guilty plea.
Apparently undissuaded, Peacock then moved to withdraw his plea a second
time. This second motion mostly mirrored the first, but Peacock also pointed out
that he had been on suicide watch the day before his plea hearing. Peacock argued
that he was giving hand signals during the plea hearing to indicate that he was in
distress, presumably because of his mental state. These “extraordinary
circumstances,” Peacock claimed, required that the guilty plea be withdrawn. The
District Court disagreed and—“for the reasons stated in the Court’s prior Order”—
denied the motion.
At sentencing, Peacock (still proceeding pro se) claimed that he was only
trying to help remove his victim from her rough home life, that he loved her, and
that he did not “think [he] did anything horribly wrong.” The government
responded that Peacock’s refusal to accept responsibility for his crimes merited a
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harsh sentence. The District Court ultimately sentenced Peacock to serve a total of
328 months’ imprisonment—the midpoint of his guideline range—for each count,
set to run concurrently, followed by a life term of supervised release. It noted that
Peacock was “extremely bright,” but, based on past psychological testing, was
“disturbed.” In particular, the Court found that he “preyed” on his victim,
“groomed her,” and “victimized her” in a way that would damage her for the rest
of her life.
In the days following the sentencing hearing—but before the District Court
entered a final judgment—Peacock filed a self-styled motion to dismiss his
charges, along with a self-styled motion for reconsideration of his motion to
withdraw his guilty plea. The District Court denied both motions and then entered
a final judgment in April 2018. Peacock timely appealed and now appears to argue
that his guilty plea was involuntarily and unknowingly made. While we disagree
with the government’s contention that this argument was abandoned, we
nevertheless affirm the District Court because Peacock’s plea was made knowingly
and voluntarily, and the Court did not abuse its discretion in denying Peacock’s
motions to withdraw his guilty plea.
II.
As an initial matter, we construe pro se pleadings liberally. Timson v.
Sampson,
518 F.3d 870, 874 (11th Cir. 2008). But issues not briefed by a pro se
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litigant are deemed abandoned.
Id. Thus, “a party seeking to raise a claim or issue
on appeal must plainly and prominently” do so. United States v. Jernigan,
341
F.3d 1273, 1283 n.8 (11th Cir. 2003).
When appropriate, we will review the voluntariness of a guilty plea de novo.
United States v. Frye,
402 F.3d 1123, 1126 (11th Cir. 2005). But we review a
District Court’s denial of a motion to withdraw a guilty plea only for abuse of
discretion. United States v. Buckles,
843 F.2d 469, 471 (11th Cir. 1988).
III.
Peacock’s opening brief appears to argue that he was “intimidated and
coerced” into pleading guilty. To this, the government responds that Peacock’s
brief “contains no legal argument explaining why he believes his convictions are
invalid,” and thus he has abandoned “any and all challenges to his conviction and
sentence.” But even if he has not abandoned his challenges, the government
contends that Peacock’s plea was voluntary, and it was not an abuse of discretion
to deny his motions to withdraw his plea. We’ll address each of these arguments
in turn.
A.
We’ll start with the abandonment issue, since it can be disposed of quickly.
Though Peacock’s pro se brief is not a model of clarity, it is entitled to
liberal construction. Timson,
518 F.3d at 874. On a few occasions in his brief,
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Peacock states that he “signed papers that were not true,” that he “did not want to
sign,” and that were signed out of “fear and ignorance.” Peacock likewise claims
that because he was “intimidated and coerced,” he signed the papers “unwillingly
and unknowingly.” Read charitably, we can discern that Peacock is raising a
challenge to the voluntariness of his guilty plea—the “papers”—because he was
“intimidated and coerced.” Though the government would have us read Peacock’s
brief to abandon all challenges to his plea, it nevertheless recognizes that the brief
“appears to suggest that his guilty plea was involuntary.” We decline—as we
must—to read Peacock’s brief narrowly, and we thus conclude that Peacock did
not abandon his challenge to the guilty plea on appeal. See
id. at 874.
B.
Next, we turn to whether Peacock’s plea was knowing and voluntary.
Because a plea of guilty is a waiver of several constitutional rights, the
Due Process Clause of the Fourteenth Amendment requires the plea to be entered
voluntarily and knowingly. McCarthy v. United States,
394 U.S. 459, 466,
89 S.
Ct. 1166, 1171 (1969). Rule 11 of the Federal Rules of Criminal Procedure
creates a prophylactic scheme designed to ensure both that guilty pleas are
constitutionally made and that a full record will be available in the event that a
challenge is made to the plea.
Id. at 465,
89 S. Ct. 1170. To determine whether
the waiver is knowing and voluntary, a court accepting a plea of guilty must
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comply with the three “core objectives” of Rule 11 by ensuring that: (1) the
guilty plea is free from coercion; (2) the defendant understands the nature of the
charges; and (3) the defendant understands the direct consequences of his plea.
United States v. Presendieu,
880 F.3d 1228, 1238 (11th Cir. 2018).
Regarding the first core principle, Rule 11(b)(2) elaborates that the court
must ensure that the plea did not result from force, threats, or promises not
included in the plea agreement. Fed. R. Crim. P. 11(b)(2). A defendant cannot
complain of coercion where his attorney, in his best professional judgment,
recommends that the defendant enter a guilty plea. Buckles,
843 F.2d at 472.
Whether the court has complied with the second core principle depends on a
variety of factors, including the complexity of the offense and the defendant’s
intelligence and education. Presendieu, 880 F.3d at 1238. And to comply with
the third core principle, the district court must inform the defendant of the rights
that he gives up by pleading guilty, the court’s authority to impose certain
punishments, and the possibility of a perjury prosecution for false statements
made during the plea colloquy. United States v. Moriarty,
429 F.3d 1012, 1019
(11th Cir. 2005); see also Fed. R. Crim. P. 11(b)(1). Thus, a plea is knowing and
voluntary when it is free from coercion, the defendant understands the nature of
the charges against him, and the defendant knows and understands the
consequences of the guilty plea. Frye, 402 F.3d at 1127.
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Here, Peacock has not shown that his guilty plea was unknowingly or
involuntarily made. As we outlined in part I, the District Court went to great
lengths at Peacock’s Rule 11 hearing to address each of the Rule’s “core
objectives.” The Court questioned Peacock regarding any coercion or force
placed upon him to plead guilty. Peacock—under oath—affirmed that he was not
subject to any force, coercion, or threats to entice him to plead guilty. The
District Court also questioned Peacock regarding his understanding of the nature
of his charges. The Court went into great detail regarding the elements and what
needed to be proven, and Peacock—a high-school- and college-educated man—
affirmed that he understood the charges against him. And finally, the District
Court questioned Peacock regarding his understanding of the constitutional rights
he was waiving in order to plead guilty, its authority to impose certain
punishments, and the implications of making a false confession. Once again,
Peacock confirmed that he understood. These affirmative statements, made under
oath, are presumptively truthful, see United States v. Medlock,
12 F.3d 185, 187
(11th Cir. 1994), and Peacock has not met his heavy burden to show that his
statements were false, see United States v. Rogers,
848 F.2d 166, 168 (11th Cir.
1988).
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So, when taking Rule 11’s concerns into consideration, Peacock’s plea was
knowingly and voluntarily made. It follows that the District Court did not err in
accepting Peacock’s guilty plea.
C.
And finally, we consider whether the District Court abused its discretion in
denying Peacock’s motions to withdraw his guilty plea.
Where the core concerns of Rule 11 are not satisfied, the proper remedy is
for the district court to allow the defendant to withdraw his plea of guilty. United
States v. Jones,
143 F.3d 1417, 1419 (11th Cir. 1998). A district court may grant
a motion to withdraw a guilty plea if the defendant shows a “fair and just
reason,” but there is no “absolute right to withdraw a guilty plea.” Buckles,
843
F.2d at 471; see also Fed. R. Crim. P. 11(d)(2)(B) (providing that a defendant
may withdraw a guilty plea after acceptance, but prior to imposition of the
sentence, if the “defendant can show a fair and just reason for requesting the
withdrawal”). Indeed, a district court’s denial of a motion to withdraw a guilty
plea will “be reversed only if its decision is arbitrary or unreasonable.” Buckles,
843 F.2d at 471. In determining whether to allow a defendant to withdraw his
guilty plea, the district court “may consider the totality of the circumstances
surrounding the plea,” evaluating: “(1) whether close assistance of counsel was
available; (2) whether the plea was knowing and voluntary; (3) whether judicial
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resources would be conserved; and (4) whether the government would be
prejudiced if the defendant were allowed to withdraw his plea.”
Id. at 471–72
(citations omitted). When a defendant fails to satisfy the first two Buckles
factors, the district court need not give considerable weight or particular attention
to the remaining two factors. See United States v. Gonzalez-Mercado,
808 F.2d
796, 801 (11th Cir. 1987). And importantly, after the district court imposes a
sentence, the defendant may not withdraw his guilty plea, and the plea may only
be set aside on direct appeal or collateral attack. Fed. R. Crim. P. 11(e).
We will not find an abuse of discretion if the district court conducted an
extensive plea colloquy prior to accepting the guilty plea. United States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006). And “[t]here is a strong presumption that
the statements made during the colloquy are true.” Medlock,
12 F.3d at 187.
Consequently, a defendant bears a heavy burden to show that his statements under
oath were false. Rogers,
848 F.2d at 168.
With these principles in mind, we conclude that the District Court did not
abuse its discretion when it denied Peacock’s three motions to withdraw his guilty
plea. For the first two motions to withdraw the plea—both of which came before
sentencing—the District Court correctly concluded that no “just reason” existed to
allow Peacock to withdraw his guilty plea. The District Court addressed the first
two Buckles factors when denying Peacock’s motions to withdraw his guilty plea,
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noting that Peacock was represented by competent counsel and that Peacock’s
plea was voluntarily and knowingly made. Although the District Court addressed
only those two Buckles factors, it was under no obligation to make any findings
regarding the remaining factors. See Gonzalez-Mercado,
808 F.2d at 801.
Additionally, the District Court did not abuse its discretion in denying
Peacock’s motion for reconsideration of the denial of his guilty plea because the
motion was filed after the sentence was imposed, and Peacock had no right to
withdraw his guilty plea at that point. See Fed. R. Crim. P. 11(e). As such, the
District Court’s denials of Peacock’s motions to withdraw his guilty plea were not
“arbitrary or unreasonable,” and as a result, were not abuses of discretion. See
Buckles,
843 F.2d at 471.
IV.
Liberally construed, Peacock’s brief does not abandon the argument that his
guilty plea was unknowingly and involuntarily made. Nevertheless, we find that
Peacock’s plea was knowing and voluntary and that the District Court did not
abuse its discretion in denying Peacock’s motions to withdraw his plea.
Accordingly, we affirm.
AFFIRMED.
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