Opinion
No. 00 CR 410-3
October 10, 2001
ORDER
David Perez pleaded guilty to possession of a controlled substance pursuant to a plea agreement on November 2, 2000. After both the government and Mr. Perez filed motions to revoke the plea agreement, Mr. Perez pled guilty without an agreement on January 26, 2001. He now asks to withdraw the plea, claiming that he was not competent to plead guilty and that his plea was not knowing and voluntary. Under Fed.R.Crim.P. 32(e), a plea can be withdrawn prior to sentencing for "any fair or just reason." The defendant has the burden of demonstrating a "fair and just" reason, and although evidentiary hearings "should be freely granted," no hearing is necessary where "the allegations in the motion to withdraw the plea are mere conclusions or are inherently unreliable." United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992). In the present case, Mr. Perez has not even included an affidavit with his motion.
Mr. Perez claims in his motion that, at the time of his plea, he was being treated for depression and anxiety, and that he was taking Paxil, a drug whose side effects include drowsiness, dizziness and insomnia. At his plea, however, Mr. Perez testified under oath that he had not taken any drugs in the previous twenty-four hours, or the previous two weeks. Tr. at 8-11. His testimony was believable, and he appeared quite competent. He also swore that he had not received any threats and that his decision to plead was entirely voluntary. Tr. at 19-20. I credited his testimony and accepted the plea. At the trial of his co-defendants, he testified, also under oath, that he had never been threatened. See United States v. Gónzalez, 142 F. Supp.2d 1052, 1059 (N.D. Ill. 2001) He attaches to his motion a threatening letter, which is undated, but he says he received it in December 2000. His claims of incompetence and involuntariness directly contradict his testimony under oath.
Entry of a plea is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal entitlement to benefit by contradicting himself under oath. Thus when the judge credits the defendant's statements in open court, the game is over.United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999). Mr. Perez waited nearly seven months after entering his plea before bringing this motion, and I may consider his delay in determining whether to allow withdrawal of the plea. See Rule 32 advisory committee notes. Mr. Perez's conclusory and contradictory allegations do not begin to meet his burden of demonstrating a fair or just reason to allow him to withdraw his plea.
Mr. Perez also claims that his counsel never told him "that he had a high probability of success on a motion to suppress" the evidence recovered during the traffic stop. Mr. Perez claims, "on information and belief," that the traffic stop was pretextual and that, after he was stopped the police "used racial profiling to further detain" him. He also claims that he was "detained for an unreasonable amount of time" and that the police manipulated his lack of understanding of the English language to intimidate him into consenting to a search of the truck. To demonstrate that his plea was not knowing and intelligent because of his lawyers' incompetence, Mr. Perez "must demonstrate that his attorney's representation tell below an objective standard of reasonableness, and that there is a reasonable probability that but for his attorney's unprofessional errors, the results of the proceeding would have been different." United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Mr. Perez has not provided sufficient facts from which I could conclude that the initial traffic stop was illegal or that his Consent to search was involuntary. Non-custodial consent dissipates the taint of an illegal stop, United States v. Liss, 103 F.3d 617, 621-22 (7th Cir. 1997), and the ordinary traffic stop, like a Terry stop, is noncustodial, Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Mr. Perez says that he was "detained for an unreasonable amount of time," but he does not say how long, so I cannot determine whether the ordinary traffic stop escalated to custody, which might have rendered his consent invalid. Even it the search was illegal, moreover, failure to challenge it is not necessarily an error. There is a strong presumption of competence, Trussel, 961 F.2d at 690, and attorneys need not make every possible argument, United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir. 1993). Nothing in the record would contradict the presumption that the failure to challenge the search was a strategic decision rather than an error. Id. at 1050 ("A silent record does not establish that somnolence or ignorance, rather than an informed decision, underlies a failure to object."). In this case, Mr. Perez pled guilty two separate times without raising the issue of the Constitutionality of his initial stop or the subsequent search. The motion to withdraw the guilty plea is therefore DENIED.