                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3238
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Ellison Lee Hutchison, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                               Submitted: July 7, 2014
                                Filed: July 16, 2014
                                   [Unpublished]
                                   ____________

Before GRUENDER, BOWMAN, and SHEPHERD, Circuit Judges.
                       ____________

PER CURIAM.

      Ellison Hutchison, Jr., appeals the district court1 order denying his motion to
withdraw his plea of guilty after he pleaded guilty to a drug crime. He pleaded guilty

      1
        The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement. Before
sentencing, Hutchison moved to withdraw his plea, but after his counsel negotiated
a lower sentence in an amended plea agreement, Hutchison changed his mind and
elected to persist in his guilty plea. After the presentence report was prepared,
Hutchinson attempted again to withdraw his plea, insisting he had an alibi witness.
The court heard arguments on the motion, but denied the motion to withdraw;
accepted the amended plea agreement; and imposed the sentence provided for in the
amended agreement.

       On appeal, Hutchison’s counsel has moved to withdraw, and in a brief filed
under Anders v. California, 386 U.S. 738 (1967), argues that the court erred by
denying Hutchison’s motion to withdraw his guilty plea, and that Hutchison’s guilty
plea was involuntary due to ineffective assistance of counsel. Hutchinson has not
filed a pro se supplemental brief.

       We conclude that the district court did not abuse its discretion in concluding
that Hutchison failed to provide a fair and just reason to allow withdrawal of his plea.
See Fed. R. Crim. P. 11(d)(2)(B); United States v. Yell, 18 F.3d 581, 582 (8th Cir.
1994) (standard of review). Hutchison’s contentions in support of withdrawing his
plea are contradicted by the sworn testimony he gave when he pleaded guilty. See
Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (representations during
plea hearing carry strong presumption of verity); cf. United States v. Morrison, 967
F.2d 264, 268 (8th Cir. 1992) (occasion for setting aside guilty plea should seldom
arise); United States v. Devins, 646 F.2d 336, 337 (8th Cir. 1981) (per curiam)
(burden is on defendant to establish grounds for guilty-plea withdrawal). Further,
Hutchinson failed to show how and why the potential witness could provide credible
evidence exonerating Hutchinson, and the court reasonably concluded that
Hutchinson’s prior failed attempts to find alibi witnesses weighed against allowing
him to withdraw his plea. The court also properly considered the prejudice that
withdrawal would cause the government, and the strength of the prosecution’s case.

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See United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991) (considerations for
motion to withdraw); cf. Paulson v. Black, 728 F.2d 1164, 1167 (8th Cir. 1984)
(where there was strong factual basis for guilty plea and it was otherwise valid, even
clear protestations of innocence would not invalidate plea). To the extent Hutchison
wishes to raise claims of ineffective assistance outside the context of his decision to
plead guilty, we defer those matters to collateral proceedings. See United States v.
Hubbard, 638 F.3d 866, 869 (8th Cir. 2011).

       Finally, having reviewed the record independently, see Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm.
As to counsel’s motion to withdraw, we conclude that allowing counsel to withdraw
at this time would not be consistent with the Eighth Circuit’s 1994 Amendment to
Part V of the Plan to Implement the Criminal Justice Act of 1964. We therefore deny
counsel’s motion to withdraw as premature, without prejudice to counsel refiling the
motion upon fulfilling the duties set forth in the Amendment.
                        ______________________________




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