Opinion
6:18-cr-00330-ADA-1
07-11-2023
UNITED STATES OF AMERICA v. ANTONIO MAURICE GARDNER
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Withdraw Guilty Plea (ECF No. 51), and the Government's Response (ECF No. 77). For the following reasons, the undersigned RECOMMENDS Defendant's Motion to Withdraw Guilty Plea be GRANTED.
I. PROCEDURAL BACKGROUND
On February 5, 2019, Defendant Antonio Gardner appeared before the Court for a rearraignment where he refused to enter a plea and made an oral motion for a continuance. (ECF No.14). On February 12, 2019, Defendant again appeared for a rearraignment and made an oral motion for a continuance. (ECF No. 16). On March 12, 2019, Defendant pled guilty to one count of Possession with the Intent to Distribute a Schedule II Controlled Substance in violation of Title 21 U.S.C. § 841(a) and § 841(b)(1)(C). (ECF Nos. 21, 22). On February 25, 2020, Defendant filed a Motion to Withdraw Plea of Guilty/Nolo Contendere. (ECF No. 51). On February 27, 2020, the district court denied Defendant's Motion by a text order. (ECF No. 54). The Court sentenced Defendant on June 10, 2020. (ECF No. 62). Defendant appealed, and the Fifth Circuit Court of Appeals reversed and remanded the case, instructing this Court to consider Defendant's Motion (ECF No. 51) under the Carr factors. (ECF No. 73); United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). On June 13, 2023, the undersigned held a hearing on Defendant's motion to withdraw. (ECF No. 95). At the hearing, Defendant, Defendant's original counsel, Jason Bailey, and Defendant's wife testified.
II. LEGAL STANDARDS
A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is no “absolute right to withdraw [a] guilty plea.” Id. However, a district court may, in its discretion, permit withdrawal before sentencing if the defendant can show a “fair and just reason.” Id. Courts in the Fifth Circuit consider the seven Carr factors when deciding whether a defendant has met his burden of establishing a fair and just reason to withdraw his plea, namely whether:
(1) the defendant asserted his innocence, (2) withdrawal would cause the government to suffer prejudice, (3) the defendant delayed in filing the motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources.Id. (citing Carr, 740 F.2d at 343-44). The district court's decision to permit or deny the motion is based on the totality of the circumstances, and the district court is not required to make findings as to each of the Carr factors. Id.
III. DISCUSSION
At the hearing, Defendant raised three reasons why he should be allowed to withdraw his guilty plea. First, Defendant claimed that his counsel encouraged him to plead guilty and promised that he would file a motion to suppress evidence after the plea. Def.'s Mot. at 2. Second, Defendant argued that his counsel served as counsel for both Defendant and his wife simultaneously, creating a conflict of interest. Third, Defendant claimed that his counsel never reviewed the video evidence in his case-despite Defendant's many requests for a suppression motion-and that Defendant did not know that the video evidence existed until after he pled guilty. The Court will address each of these concerns in turn.
A. Defendant has not proven that his counsel promised to file a motion to suppress after Defendant pled guilty.
In his motion and at the hearing, Defendant claimed that he pled guilty because his counsel erroneously advised him that he would file a motion to suppress after the plea. Def.'s Mot. at 2. When Defendant pled guilty, however, he swore in open court, among other things, that no one had made him a promise to induce him to plead guilty and that he was satisfied with his counsel. (ECF No. 22). Defendant now seeks to withdraw his guilty plea because he had ineffective counsel and that counsel made him a promise to induce him to plead guilty. Def.'s Mot. at 7.
Solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 74 (1977). A defendant's assertion alone cannot overcome the presumption of verity for his statements made in open court. See United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (“We have scoured the record and can find no shred of evidence to support [defendant's contention that he was somehow coerced into the plea agreement by threats to institutionalize his brother . . .”). In Lampazianie, without evidence to support the defendant's claim that he was coerced into pleading guilty, the court concluded that his statements before the magistrate judge in open court were true. Id. Thus, a defendant must provide some evidence to support the claim that his earlier statements in open court were not true. Id.
The Fifth Circuit reviewed a similar case in United States v. McDonald. United States v. McDonald, 416 Fed.Appx. 433, 434 (5th Cir. 2011). In McDonald, the defendant sought to withdraw his guilty plea, claiming that his counsel erroneously advised him that he could appeal his suppression motion after an unconditional guilty plea. Id. The defendant submitted an affidavit in which he swore that he pled guilty based on counsel's advice that he would be able to appeal the suppression ruling even if he pled guilty and that he would not have pled guilty and would have insisted on going to trial had he been correctly informed. Id. at 436. The defendant's counsel also submitted an affidavit in which he admitted that he advised McDonald he could appeal the suppression ruling even if he pled guilty. Id. The district court accepted these affidavits as true. Id. Following an evidentiary hearing on the motion to withdraw, however, the district court denied the motion. Id. at 434. On appeal, the Fifth Circuit determined that the district court was in error, holding, “[The two affidavits] should have ended the analysis because both prongs of the Strickland analysis were thus satisfied-erroneous advice and prejudice that affected the defendant's decision to plead guilty. Accordingly, McDonald's plea was not knowing and voluntary.” Id. at 436. The Fifth Circuit also found the fact that the defendant's plea was not knowing and voluntary outweighed the other Carr factors and sufficiently established that the district court had abused its discretion in denying the defendant's motion to withdraw. Id.
Unlike in McDonald, Mr. Bailey submitted an affidavit denying that he ever told Defendant he would file a motion to suppress after the plea. Gov.'s Resp. at Ex. 1 (ECF No. 77). Mr. Bailey maintained this position at the hearing. Defendant introduced no further evidence at the hearing that would overcome the presumption of veracity afforded Defendant's statements in open court at his guilty plea. In the absence of compelling evidence to support Defendant's claim, the Court is unconvinced that Mr. Bailey promised to file a motion to suppress after Defendant's plea.
B. Defendant has not shown that his counsel represented Defendant and Defendant's wife simultaneously.
Defendant argued at the hearing that Mr. Bailey's simultaneous representation of Defendant and his wife created a conflict of interest. The testimony of Mr. Bailey and Defendant's wife on the stand, however, does not support this. Mr. Bailey testified at the hearing that he did not recall giving any legal advice to Defendant's wife. Defendant's wife testified that Mr. Bailey never represented her, although he told her he could help her if she faced a CPS case, but no such case ever arose. Additionally, Defendant's wife testified that Mr. Bailey had told her not to falsely claim that her husband's gun was hers. Based on this testimony, Mr. Bailey did not represent Defendant and his wife simultaneously. Mr. Bailey's advice to Defendant's wife not to claim Defendant's gun as hers does not amount to a conflict of interest. Had Mr. Bailey advised Defendant's wife to claim to the Court that the gun as her own, he would have been suborning perjury. See 18 U.S.C.A. § 1622 (“Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.”). Defendant has not shown that Mr. Bailey simultaneously represented both Defendant and Defendant's wife nor has Defendant shown that Mr. Bailey had a conflict of interest while representing him.
C. Defendant should be allowed to withdraw his guilty plea because his counsel could not prove that he reviewed all the relevant evidence by the date that Defendant pled guilty.
Through cross-examination, Defendant raised the issue that Mr. Bailey had not reviewed the video evidence in Defendant's case before Defendant pled guilty. Defendant also testified at the hearing that he was not aware of the existence of the video evidence until after he pled guilty. Defendant introduced as an exhibit a letter he wrote to the District Judge after his sentencing. In the letter, Defendant wrote, “Throughout this entire process [Mr. Bailey] claimed that the Temple Police Department said that no audio or video was taken.” Def.'s Ex. 2 (ECF No. 98). Defendant also wrote that it was not until after the guilty plea that Mr. Bailey told Defendant that he had “finally received audio but that he hadn't listened to it because it was 18 hours long.” Id.
When asked at the hearing whether he had watched the bodycam footage from Defendant's arrest, Mr. Bailey first testified: “I don't recall specifically, but if it was provided, I would have watched it.” When asked if, on the date Defendant pled guilty, he had received the audio and video evidence from the case, Mr. Bailey testified: “I believe that we had.” When asked if he had reviewed it all by that date, Mr. Bailey testified: “I . . . if it was . . . if I had it, I would have reviewed every second of it.” When pushed on the question, Mr. Bailey said he believed he had reviewed all the audio and video evidence. When asked how long the audio and video evidence was, Mr. Bailey responded, “I believe there was a lot of it. I don't recall exactly how long, but hours' worth.”
When asked whether he had received all the evidence at once or on several different occasions, Mr. Bailey answered, “I don't recall. I know that I went to the office to discuss it with them on several occasions. I don't recall if it was parceled out or if I received it all as one big package.” Defense counsel then introduced a stipulation of facts which stated that the Government's file on this case contains a receipt signed by Mr. Bailey on February 5, 2019-the date of Defendant's first rearraignment-indicating that on that day he picked up the evidence in this case that included the audio and video evidence. Def.'s Ex. 2. Mr. Bailey then claimed that if that was what the stipulation said, it was the truth. Thus, the testimony of Mr. Bailey and the stipulation indicate that counsel failed to review relevant video evidence after Defendant requested he file a motion to suppress.
The Court asked: “Mr. Bailey, I know you were retained in this case. As part of that retention did you maintain a timesheet reflecting the date you undertook work and the amount of time it did take you to do so, and did you ultimately submit that to the client?” Mr. Bailey responded, “I don't believe so, your honor.” When pressed on whether he had maintained any timesheets or records that could clarify whether he had reviewed the video evidence, Mr. Bailey admitted, “I honestly don't recall doing that. I don't have access to it if it does exist.”
Because Mr. Bailey could not credibly testify that he had reviewed the video footage, could not recall details of the footage such as the length, could not recall when he had picked up the video footage without the stipulation, and had no records to prove that he had reviewed the footage, the Court does not find his testimony that he reviewed video footage credible. Where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. McDonald, 416 Fed.Appx. at 435. Failure to review relevant video evidence, especially considering the request for suppression by Defendant, falls below the range of competence demanded of attorneys in criminal cases. Thus, Defendant's plea was not knowing and voluntary due to ineffective assistance of counsel. Id. Additionally, the fact that a plea is not knowing and voluntary is sufficient to outweigh the other Carr factors and is a fair and just reason for the Court to permit Defendant to withdraw his guilty plea. See id. (“[O]ur conclusion that McDonald's plea was not knowing and voluntary as a result of ineffective of assistance of counsel is sufficient to establish that the district court abused its discretion in denying McDonald's motion to withdraw the plea.”). Accordingly, Defendant should be permitted to withdraw his guilty plea.
IV. CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS Defendant's Motion be GRANTED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.