
USCA1 Opinion

	




        January 5, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1724                                    UNITED STATES,                                      Appellee,                                          v.                                  JAMES T. MARSHALL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                          Bownes, Senior Circuit Judge, and                                   ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            James T. Marshall on brief pro se.            _________________            Donald  K. Stern, United  States Attorney, and Mark W. Pearlstein,            ________________                               __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Defendant James  Marshall appeals from                      __________            a district court order denying his motion under Fed. R. Crim.            P. 32(d) to  withdraw his guilty plea.  For  the reasons that            follow, we affirm.                                          I.                 Defendant  was indicted  on  a single  count of  being a            felon in possession of  a firearm--a charge that, due  to his            lengthy criminal history, subjected  him upon conviction to a            15-year  mandatory  minimum term  of  imprisonment.   See  18                                                                  ___            U.S.C.     922(g),  924(e).   Defendant was  ordered detained            pending trial.   Nine  months later (following  the discovery            that  defendant  was  afflicted  with  the  HIV  virus),  the            government and  defendant reached a plea  agreement providing            in  part as  follows: (1)  defendant would  plead guilty  and            would   assist    the   government   in    related   criminal            investigations; (2) the government would recommend that he be            released  pending  sentencing;  and  (3) in  the  event  that            defendant's  cooperation  (in   the  government's   judgment)            constituted substantial assistance, the government would file            a  motion under U.S.S.G.    5K1.1 for  downward departure and            would recommend no  further imprisonment.  On  June 24, 1993,            following  a careful  Rule  11 colloquy,  the district  court            accepted  defendant's  guilty  plea  and  adopted   the  plea            agreement.  Defendant was released on bail six days later.                                         -2-                 Defendant failed to assist the  government as promised--            despite being  afforded numerous opportunities to  do so, and            despite being  specifically warned on  several occasions that            he would lose the benefits of a   5K1.1 motion if his lack of            cooperation persisted.  Accordingly, on March 28, 1994, three            days before sentencing was to occur, the government announced            that it would decline to move for a downward departure.   The            court  ended up  postponing sentencing  for several  weeks to            enable defendant to review the presentence report, but it did            revoke  bail on March 31 because of the mandatory sentence he            was then facing.                 Six  days later,  defendant  filed a  pro  se motion  to            withdraw  his plea,  arguing  that his  counsel had  provided            ineffective assistance in advising him  to plead guilty.  His            sole  contention in this regard was  that counsel, by failing            to review his  file, had overlooked  and otherwise failed  to            pursue a  viable justification defense.   The court addressed            this  motion  on April  21 at  the  outset of  the sentencing            hearing.  In response to inquiries  from the court, defendant            acknowledged  that he  and counsel  had discussed  a possible            justification defense prior  to the change of  plea, with the            latter advising him that it was unlikely to succeed.  Counsel            confirmed this  version of events,  telling the court  that a            justification defense had struck him as "thin" based  on "the            documents provided"; he added, however, that the final choice                                         -3-            to plead guilty had been made by his client.  The court found            that defendant  had  adduced no  "fair  and just  reason"  to            withdraw his plea, as required by Rule 32(d).  It noted that,            far   from  having   been  ineffective,  counsel   had  acted            responsibly  by  abandoning  the "challenging"  justification            defense and negotiating a  "highly favorable" plea agreement.            The  court  denied  the  motion to  withdraw  and  thereafter            imposed  the  15-year  mandatory  sentence.    Defendant  now            appeals on a pro se basis.                                           II.                 Defendant's challenge to the court's Rule 32(d) decision            requires little comment.   We review such a ruling  for abuse            of discretion.  See, e.g., United States v. Gonzalez-Vazquez,                            ___  ____  _____________    ________________            34  F.3d 19,  22 (1st  Cir. 1994).   As  explained in  United                                                                   ______            States  v. Parrilla-Tirado, 22 F.3d 368  (1st Cir. 1994), the            ______     _______________            exercise  of  discretion  in  this  context  depends  on  the            "overall  situation" and  rests  "most prominently"  on  four            factors: (1)  the plausibility  of the reasons  prompting the            requested change of plea;  (2) the timing of the  motion; (3)            the existence  or nonexistence of an  assertion of innocence;            and (4)  whether the  plea may  appropriately be  regarded as            involuntary, in derogation of the requirements of Rule 11, or            otherwise  legally  suspect.1    Id. at  371;  accord,  e.g.,                                             ___           ______   ____                                            ____________________            1.  If the balance of these factors weighs in the defendant's            favor,  the  court  must  also  consider  "any   demonstrable            prejudice  that will  accrue to  the government."   Parrilla-                                                                _________                                         -4-            United States  v. De Alba  Pagan, 33 F.3d 125,  127 (1st Cir.            _____________     ______________            1994).                  In reverse order, we note that defendant has advanced no            challenge to the adequacy of the Rule 11 hearing.  See, e.g.,                                                               ___  ____            United  States v. Austin, 948  F.2d 783, 787  (1st Cir. 1991)            ______________    ______            ("we  have repeatedly found no abuse  of discretion in denial            of  [Rule]  32(d)  motions  where  Rule  11  procedures  were            assiduously followed").  Defendant's justification defense is            consistent  with  an assertion  of  innocence  but, as  noted            infra, is of dubious  merit.  The timing of  the motion alone            _____            would  constitute a  sufficient  basis for  denial under  the            circumstances: the  fact that it  was filed over  nine months            after the guilty plea, and only after the pronouncement  that            defendant  was again  facing  a  mandatory 15-year  sentence,            "cast[s]  a long shadow over the  legitimacy of his professed            reasons for seeking to  change course."2  Parrilla-Tirado, 22                                                      _______________            F.3d  at 373; accord,  e.g., United  States v.  Gonzalez, 970                          ______   ____  ______________     ________            F.2d  1095, 1100  (2d Cir.  1992) (fact that  defendant filed            32(d) motion "only after he learned that the Government would            not   move   for   a  downward   departure"   undercuts   its            plausibility).                                              ____________________            Tirado, 22 F.3d at 371.            ______            2.  Defendant has,  at no  time, questioned the  propriety of            the government's refusal to file a   5K1.1 motion.                                         -5-                 Finally,  the  justification   defense  now  touted   by            defendant  was  properly  described  as  "thin"   by  defense            counsel.3   Even  if it  had been  of somewhat  greater heft,            counsel's advice to abandon such a tactic in favor of  a plea            agreement affording defendant the  opportunity to avoid a 15-            year prison  term can hardly  be thought  unreasonable.   And            during the Rule 11  colloquy defendant had pronounced himself            satisfied with counsel's  performance.  Given these  factors,            the  district  court  cannot  be  said  to  have  abused  its            discretion  in  finding  no  "fair  and just  reason"  for  a            withdrawal of defendant's plea.                                            ____________________            3.  Defendant claims that he was victim rather than culprit--            i.e., that he encountered two armed, unidentified  men at the            door to  his apartment; that a struggle  ensued, during which            he  managed to gain possession of one of their guns; and that            he then knocked  on the doors of  several adjacent apartments            screaming for help.  In support, he points to the transcripts            of various "911" calls  made by his neighbors over  an eight-            minute  span.   Several  of these  callers reported  spotting            (through their peepholes)  a man in the hallway brandishing a            gun, and hearing him "yelling for help" and "saying someone's            trying to kill him."                 None of these callers, however, mentioned seeing the two            alleged intruders.  More  important, other evidence suggested            that defendant  failed to get rid of the firearm as soon as a            safe   opportunity   arose--an   essential   element   of   a            justification defense.   See,  e.g., United States  v. Smith,                                     ___   ____  _____________     _____            982 F.2d 681, 685 (1st Cir.  1993).  When two police officers            arrived  at the  scene (in  plainclothes, with  police badges            around their  necks) and  drew their guns,  defendant pointed            the  handgun  at  them from  ten  feet  away.   The  officers            identified themselves and demanded that he drop the gun,  and            he  did so.  But  as they approached  him, defendant "lunged"            for  the gun  (as he  acknowledged at  the Rule  11 hearing),            thereby causing a lengthy struggle.                 There was  also considerable hearsay evidence,  we note,            suggesting that defendant was under the influence of drugs at            the time of the incident.                                           -6-                                         III.                 Nor  do we  find merit  in defendant's  collateral claim            that  he was  denied  his Sixth  Amendment  right to  counsel            during  the course of the Rule 32(d)  hearing.  This is not a            case like  United States v.  Ellison, 798 F.2d  1102, 1106-09                       _____________     _______            (7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), in which                             ____________            a defendant's  allegation of specific misconduct  on the part            of his attorney, and the  latter's denial thereof, created  a            palpable conflict.   As mentioned, in response to the court's            questioning  here,  defendant  and  counsel  agreed  on   the            pertinent factual issues.   Where it can be  determined (from            the face thereof or through  preliminary inquiry) that a Rule            32(d) motion claiming ineffective assistance of counsel lacks            colorable  merit, a court is under no obligation to conduct a            full-blown evidentiary hearing,  see, e.g., United States  v.                                             ___  ____  _____________            Ramos,  810 F.2d  308,  314 (1st  Cir.  1987), or  to  secure            _____            substitute counsel, see, e.g.,  United States v. Trussel, 961                                ___  ____   _____________    _______            F.2d 685,  688-90 (7th Cir.  1992); United States  v. Rhodes,                                                _____________     ______            913 F.2d 839, 841-46 (10th Cir. 1990), cert. denied, 498 U.S.                                                   ____________            1122 (1991); see also De Alba Pagan, 33 F.3d at 126-28.                         ________ _____________                 Affirmed.                 _________                                         -7-
