                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2006

USA v. Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1317




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                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 05-1317


                         UNITED STATES OF AMERICA

                                         v.

                               JAMES A. THOMAS
                                  a/k/a Punkin

                                              James A. Thomas,
                                                    Appellant


                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 03-cr-00098)
                   District Judge: Honorable Gustave Diamond


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 12, 2006

            Before: BARRY, AMBRO and ALDISERT, Circuit Judges

                              (Filed January 17, 2006)




                                    OPINION


AMBRO, Circuit Judge

     James Thomas pled guilty to two drug charges and a firearms possession charge.
Before sentencing he moved to withdraw his guilty plea, but the District Court denied his

motion. Although Thomas had made inculpatory statements after his arrest and in his

plea colloquy, he now asserts his innocence. He also claims ineffective assistance of

counsel, a claim that contradicts statements he made in the plea colloquy. The District

Court did not abuse its discretion in denying Thomas’s plea-withdrawal motions, so we

affirm.

                      I. Factual Background and Procedural History

          Because we are writing solely for the parties, what follows is a summary of the

relevant facts.

          In October 2002 Allegheny County narcotics detectives searched Thomas’s

apartment pursuant to a search warrant. Finding no drugs in the apartment, they cut a

padlock off the basement door and searched the basement. There they found evidence of

drug activity: 600 stamp bags of heroin, several baggies of cocaine, two guns, drug

paraphernalia, a digital scale, and cash.

          The officers returned to Thomas’s apartment and told him that he was under arrest.

He initially denied knowledge of the drugs and guns. But when the officers found the key

to the basement padlock hidden in his window blind, Thomas said, “Well, I guess that

kind of makes your case, huh?” He then showed a willingness to take responsibility for

the items found in the basement and described in detail the markings on the heroin bags

and how he hid the digital scale. En route to the police station, Thomas claimed that he



                                               2
was taking the rap for another but admitted that he owned one of the guns found in the

basement.

       In March 2003 a federal grand jury returned an indictment with three counts:

possession with intent to distribute less than 100 grams of heroin, possession with intent

to distribute less than 500 grams of cocaine, and possession of a firearm by a convicted

felon. In April 2004 Thomas pled guilty to the three counts. After the plea colloquy, in

which Thomas agreed that he could not withdraw the plea if he ended up disappointed

with the ultimate guideline sentencing range, the District Court accepted his guilty plea.

       Thomas’s first court-appointed counsel withdrew, as did his second. With the

assistance of his third, and current, attorney, he moved to withdraw his plea. The District

Court denied this motion in December 2004. Thomas then filed pro se a second plea-

withdrawal motion, which the Court also denied in January 2005.

       Twelve days after his second motion was denied, Thomas was sentenced to 180

months imprisonment, followed by six years supervised release. He appeals the denials

of his plea-withdrawal motions.1

                        II. Jurisdiction and Standard of Review

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231 because




  1
    Although his brief only discusses the two plea-withdrawal motions, Thomas’s notice
of appeal appears to appeal other orders, such as the two orders denying his motions for
reconsideration of the denials of the plea-withdrawal motions. We affirm all of the orders
appealed by Thomas.

                                             3
Thomas was accused of offenses against the laws of the United States. As this is an

appeal from a final judgment of conviction and sentence, we have appellate jurisdiction

under 28 U.S.C. § 1291.

       As noted, we review for an abuse of discretion the Court’s denial of a pre-

sentencing motion to withdraw a guilty plea. United States v. Jones, 336 F.3d 245, 252

(3d Cir. 2003).

                                      III. Discussion

       Under Federal Rule of Criminal Procedure 11(d)(2)(B), a criminal defendant may

withdraw a guilty plea after the court has accepted it, but before the sentence is imposed,

if “the defendant can show a fair and just reason for requesting the withdrawal.” 2 District

courts must consider three factors when evaluating a plea-withdrawal motion: “(1)

whether the defendant asserts his innocence; (2) the strength of the defendant’s reasons

for withdrawing the plea; and (3) whether the government would be prejudiced by the

withdrawal.” Jones, 336 F.3d at 252. Thomas bears the “substantial” burden of

demonstrating his “fair and just” reason for withdrawal. Id. “‘A shift in defense tactics, a

change of mind, or the fear of punishment are not adequate reasons to impose on the

government the expense, difficulty, and risk of trying a defendant who has already

acknowledged his guilt by pleading guilty.’” Id. (quoting United States v. Brown, 250




  2
    This provision was previously found in Federal Rule of Criminal Procedure 32 before
the 2002 amendments of the Rules.

                                             4
F.3d 811, 815 (3d Cir. 2001)).

       With respect to the first factor, the District Court determined (in both the

December and January denials of Thomas’s plea-withdrawal motions) that he had not

meaningfully reasserted his innocence. “Bald assertions of innocence are insufficient to

permit a defendant to withdraw his guilty plea.” Id. Such assertions must be “buttressed

by facts in the record that support a claimed defense.” United States v. Brown, 250 F.3d

811, 818 (3d Cir. 2001) (internal quotation marks omitted). After a defendant enters a

guilty plea, he “must then not only reassert innocence, but give sufficient reasons to

explain why contradictory positions were taken before the district court and why

permission should be given to withdraw the guilty plea and reclaim the right to trial.”

United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded on other grounds by

statute as recognized in United States v. Roberson, 194 F.3d 408 (3d Cir. 1999).

       Thomas did not meaningfully reassert his innocence and provided only bald

assertions of innocence. He claimed that the drugs were not his but failed to show that

anyone else could have entered the basement; it was padlocked, and the key to the

padlock was hidden in his apartment. In his plea colloquy, Thomas agreed that the

Government’s evidentiary summary was correct. Aside from a blanket statement of

innocence, he cannot offer any other reason why he took contradictory positions in front

of the District Court. It correctly determined in both the December and January denials

that Thomas failed to reassert meaningfully his innocence.



                                              5
       For the second factor (his reasons for withdrawing the plea), Thomas asserts

ineffective assistance of counsel. He claimed that his first appointed counsel was

ineffective for (1) failing to challenge the authenticity of a judge’s signature on a search

warrant, (2) failing to call certain witnesses at the suppression hearing, and (3) failing to

advise him properly on the Government’s burden, the elements of the offenses, the

indictment language, and the waiver of his rights. The District Court—correctly, we

believe—twice found Thomas’s claims of ineffective assistance lacking. Further,

Thomas’s claims are undermined by his statements at his plea colloquy that he was

satisfied to have his lawyer represent him and that he understood the Government’s

burden, his waiver of rights, and the charges against him.

       As for the third factor—prejudice to the Government—Thomas’s arguments are

unavailing. The Government does not have to show prejudice when the “defendant has

failed to demonstrate that the other factors support a withdrawal of the plea.” Jones, 336

F.3d at 255.

       In his brief to our Court, Thomas cites an unpublished Third Circuit decision,

United States v. Dowe, 41 Fed. Appx. 561 (3d Cir. 2002). Regardless of the fact that

unpublished cases are not binding authority in this Court, see Third Circuit Internal

Operating Procedure 5.7, Dowe does not adversely affect our disposition of this case. In

Dowe, the defendant did not assert his innocence of a conspiracy-to-distribute charge; he

merely disputed the quantity of the drugs to which he had stipulated. Dowe, 41 Fed.



                                               6
Appx. at 561. We held that the District Court correctly found that (1) Dowe had not

presented compelling evidence supporting this claim, (2) his ineffective-assistance claim

was not persuasive, and (3) the Government would be prejudiced by permitting a plea

withdrawal. Id. at 562–63. Thomas suggests that Dowe’s not asserting his innocence

changes the analysis of an ineffective-assistance claim, but we disagree; the two factors

are separate. Thomas also claims that the Government would not be prejudiced here. But

as noted above, the Government does not have to show prejudice because Thomas did not

meet his burden on the other two factors.

                                     IV. Conclusion

       We hold that the District Court twice correctly denied Thomas’s motions to

withdraw his guilty plea. We therefore affirm.




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