     14-3941
     United States v. Grant

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-3941
16
17       DERRICK GRANT,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLEE:                         THOMAS A. MCKAY (with Samson A.
22                                             Enzer and Justin Anderson on the
23                                             brief), Assistant United States
24                                             Attorneys, for Preet Bharara,
25                                             United States Attorney for the
26                                             Southern District of New York.
27


                                                  1
 1   FOR DEFENDANT-APPELLANT:   LOUIS R. AIDALA, Baratta,
 2                              Baratta & Aidala LLP, New York,
 3                              New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Southern District of New York (McMahon, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Defendant Derrick Grant appeals from a judgment of
13   conviction and sentence entered by the United States
14   District Court for the Southern District of New York
15   (McMahon, J.). The defendant challenges the conviction on
16   the grounds that (1) the district court committed plain
17   error in denying defendant's motion to withdraw his guilty
18   plea; and (2) prior counsel rendered ineffective assistance
19   of counsel by neglecting to advise that Grant could withdraw
20   his guilty plea before the plea was accepted by the district
21   court. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        1. Plain error review permits relief only where (1)
26   there is “error,” (2) the error “is plain,” (3) the
27   error “affect[s] substantial rights,” and (4) the error
28   “seriously affect[s] the fairness, integrity, or
29   public reputation of judicial proceedings.” United States
30   v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (quoting
31   Johnson v. United States, 520 U.S. 461, 466–67 (1997)).
32   Under this standard, we conclude there is no error.
33
34        Grant entered a guilty plea before a magistrate judge
35   on November 5, 2013, and although there was initially
36   confusion about the date the plea was adopted by the
37   district court, Judge McMahon clarified that she adopted the
38   plea on July 31, 2014. Defendant contends that a letter
39   from prior counsel (sent on July 21, 2014) constituted a
40   withdrawal of his guilty plea. The district court, however,
41   construed the July 21 letter as a request for the
42   appointment of counsel to advise defendant about a potential
43   motion to withdraw, not as a motion to withdraw. Defendant
44   contends that this was plain error. Under Rule 11(d)(1) of
45   the Federal Rules of Criminal Procedure (the “Rules”),
46   “before the court accepts the plea,” a defendant may
47   withdraw a guilty plea “for any reason or no reason.”

                                  2
 1   However, under Rule 11(d)(2), a guilty plea, once accepted
 2   by the court, may only be withdrawn if the defendant "can
 3   show a fair and just reason." If the July 21 letter did in
 4   fact constitute a withdrawal, then defendant argues that he
 5   had an absolute right to withdraw at that time because his
 6   plea had not been “accepted” by an Article III district
 7   judge.1
 8
 9        As the district court observed, the letter was
10   "entirely too equivocal to qualify as a motion to withdraw."
11   The letter unambiguously states at the beginning that
12   "Derrick Grant wants to withdraw his guilty plea," but the
13   rest of the letter qualifies that statement. Withdrawal is
14   framed in contingent terms: "if he wants to proceed with
15   this request” and specifically requests new counsel "to
16   advise him about an application to withdraw his plea." The
17   letter specified that current counsel “remain willing and
18   able to represent” defendant in sentencing “[i]f after
19   consulting with new counsel, Mr. Grant decides to proceed to
20   sentencing on the guilty plea.” If the letter itself was a
21   withdrawal, there would have been no need to consider the
22   possibility of proceeding to sentencing on a withdrawn
23   guilty plea.
24
25        The letter contemplates a motion to withdraw but
26   constitutes no more than a request for new counsel to be
27   appointed to advise defendant about a future motion to
28   withdraw. Such a reading is consistent with how defense
29   counsel characterized the letter on the docket, which was as
30   a "LETTER MOTION" regarding "Appointment of New Counsel,"
31   and is also how the district court construed the letter in
32   the first instance--prior to any controversy about
33   withdrawal as of right--when the request for new counsel was
34   denied by memo endorsement.


         1
              We do not decide whether a magistrate judge has
     the constitutional authority to “accept” a plea within the
     meaning of Rule 11. See United States v. Williams, 23 F.3d
     629, 634 (2d Cir. 1994) (rejecting constitutional challenge
     to magistrate judges performing Rule 11 plea allocutions);
     see also United States v. Benton, 523 F.3d 424 (4th Cir.
     2008) (rejecting constitutional challenge to magistrate
     judges accepting pleas within the meaning of Rule 11).
     Because the magistrate judge here “recommended” that the
     plea be accepted, but did not himself purport to accept the
     plea under Rule 11, we need not reach the issue.
                                  3
 1        Because the July 21 letter was neither a withdrawal nor
 2   a request to withdraw, the guilty plea was accepted by the
 3   district court before defendant actually moved for
 4   withdrawal.2 Rule 11(d)(2) therefore controls, which
 5   requires a "fair and just reason" before a guilty plea may
 6   be withdrawn. Defendant concedes that he cannot satisfy the
 7   "fair and just reason" standard, and so the judgment of the
 8   district court must be affirmed.
 9
10        2. Defendant contends that he was denied effective
11   assistance of counsel because prior counsel did not strictly
12   adhere to Grant's wishes by attempting to withdraw the plea
13   as of right before the district court adopted it. In order
14   to establish such a violation, a defendant must show that
15   (1) "counsel's performance was deficient" such that "counsel
16   was not functioning as the 'counsel' guaranteed the
17   defendant by the Sixth Amendment;” and (2) "the deficient
18   performance prejudiced the defense," such that "there is a
19   reasonable probability that, but for counsel's
20   unprofessional errors, the result of the proceeding would
21   have been different." Strickland v. Washington, 466 U.S.
22   668, 687, 694 (1984).
23
24        “When faced with a claim of ineffective assistance of
25   counsel on direct appeal, we may: (1) decline to hear the
26   claim, permitting the appellant to raise the issue as part
27   of a subsequent petition for writ of habeas corpus pursuant
28   to 28 U.S.C. § 2255; (2) remand the claim to the district
29   court for necessary factfinding; or (3) decide the claim on
30   the record before us." United States v. Morris, 350 F.3d
31   32, 39 (2d Cir. 2003). We decline to review defendant's
32   claim of ineffective assistance of counsel on the inadequate
33   record now before us. Defendant may pursue this claim in a
34   § 2255 petition. See United States v. Khedr, 343 F.3d 96,
35   100 (2d Cir. 2003).
36
37




         2
              Defendant does not contend that the district judge
     abused its discretion in accepting the plea at a time when
     he could have withdrawn the plea unilaterally and it was
     evident to the court that he was taking counsel about
     whether to do so. Accordingly, we have no occasion to
     address that issue.
                                  4
1        For the foregoing reasons, and finding no merit in
2   defendant’s other arguments, we hereby AFFIRM the judgment
3   of the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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