                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATON
                            File Name: 15a0660n.06

                                          No. 14-5959

                             UNITED STATES COURT OF APPEALS
                                                                                      FILED
                                                                                 Sep 30, 2015
                                  FOR THE SIXTH CIRCUIT
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
         Plaintiff-Appellee,                         )
                                                     )
                        v.                           )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
ROBERT GRAY,                                         )      COURT FOR THE WESTERN
                                                     )      DISTRICT OF KENTUCKY
         Defendant-Appellant.                        )
                                                     )

BEFORE:         KEITH, ROGERS, and GRIFFIN, Circuit Judges.

         DAMON J. KEITH, Circuit Judge.             Defendant-Appellant Robert Gray (“Gray”)

appeals the denial of his motion to withdraw his plea of guilty to six counts of mail fraud in

violation of 18 U.S.C. § 1341. On appeal, Gray argues that the district court abused its discretion

in denying his motion because his trial counsel’s ineffective assistance rendered his plea

involuntary. Gray also argues that the district court erred in refusing to hold an evidentiary

hearing on the motion. For the reasons set forth below, we AFFIRM the decision of the district

court.

         I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         In August 2010, Gray allegedly persuaded an individual to invest money in his

construction company. (R. 59, Plea Hr’g Tr. 17:7-18:8, Feb. 25, 2014.) Gray represented to the

individual that the funds would be used for large-scale commercial projects in Kentucky.

(Id. 18-9:16.) But in reality, Gray had no contracts for these projects. (Id. 18:17-18.) The

individual then proceeded to mail several checks in large amounts to Gray, who deposited them
No. 14-5959, United States v. Gray


in his company’s account. (Id. 19:2-11.) On June 12, 2013, Gray was indicted for six counts of

mail fraud under 18 U.S.C. § 1341. (R. 1) Gray waived his right to court-appointed counsel, and

proceeded to retain his own, Thomas Osborne. A jury trial was scheduled to begin on February

26, 2014. (R. 43)

       Shortly before trial, however, Gray informed the prosecution of his intention to enter a

guilty plea. A change of plea hearing was held on February 25, 2014, the day before trial was set

to begin. During the hearing, the court confirmed that Gray was not forced to plead guilty, and

was not promised anything beyond the terms in the plea agreement. (See R. 59, Plea Hr’g Tr.

4:11-16) He also confirmed his satisfaction with his counsel. (Id. 4:20-22.) Thus, Gray pled

guilty to six counts of mail fraud at the hearing, and executed a plea agreement. (Id. 20:14-16.)

(See also R. 50. Plea Agreement.)

       But Gray changed his mind. On March 12, 2014, two weeks after the hearing, another

attorney, Joseph Blandford, entered a substitution and appearance on Gray’s behalf. (R. 53,

Notice of Attorney Appearance.) That same day, Blandford filed a motion on Gray’s behalf to

continue sentencing in which he announced his intention to withdraw the plea. (R. 54, Mot.

cont. sentencing.)

       True to his word, Gray filed his motion to withdraw his plea on March 28, 2014. (R. 56,

Mot. withdraw plea.) In support of the motion, he attached an affidavit, alleging that Mr.

Osborne was not prepared for trial. According to Gray’s affidavit, Mr. Osborne and he went to

the Federal Bureau of Investigation office five days before the change in plea hearing. (R. 56-1,

Gray Aff ¶ 3.) There, Gray reviewed the documents that the Government purportedly intended

to use against him. (Id.) Mr. Osborne did not review the evidence, but merely told Gray to

“look through it and let him know if there was anything we needed.” (Id.) Three days before



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No. 14-5959, United States v. Gray


trial, Mr. Osborne called Gray and told him for the first time that he needed to plead guilty.

(Id. ¶ 4.) However, Gray did not want to plead guilty. (Id.) He was “practically crying” when he

spoke with Mr. Osborne, and asked him if he could retain another attorney. (Id.) Mr. Osborne

further advised Gray that if he did not enter a guilty plea, the “[c]ourt would put [him] in jail

until another trial date.” (Id.) After pleading guilty, Gray “immediately” started looking for

another attorney. (Id. ¶ 5.)

       The district court denied the motion to withdraw the plea on May 15, 2014. (R. 67, May

15, 2014 Order.) Judgment was entered on July 7, 2014. (R. 76, Judgment.) Gray was

sentenced to sixty months’ imprisonment and ordered to pay $220,000 in restitution. (Id.) Gray

timely filed a notice of appeal two weeks later on July 21, 2014. (R. 78, Notice of Appeal.)

       On appeal, Gray argues that Mr. Osborne provided ineffective assistance of counsel,

which renders his plea involuntary. He also argues that the district court improperly refused his

request for an evidentiary hearing.

       II.     STANDARD OF REVIEW

       Gray challenges the district court’s denial of his motion to withdraw his guilty plea,

which our Court reviews for abuse of discretion. See United States v. Durham, 178 F.3d 796,

798 (6th Cir. 1999); United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “A district court

abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly

applies the law or uses an erroneous legal standard.” United States v. Lineback, 330 F.3d 441,

443 (6th Cir. 2003) (internal quotation marks omitted).




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       III.    DISCUSSION

               A. Gray’s claim for ineffective assistance of counsel is not ripe for review.

       First of all, Gray argues that ineffective assistance of counsel rendered his plea

involuntary. To prevail on this claim, Gray must satisfy the two-prong test established by the

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88 (1985): (1) the defendant’s

counsel’s performance was deficient, or put differently, “fell below an objective standard of

reasonableness”; and (2) the performance prejudiced the defendant. To establish prejudice in the

context of guilty pleas, Gray must show that “there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       Before we address the merits of Gray’s claim, however, we must first determine if it is

appropriate to do so. “Ordinarily we will not review a claim of ineffective assistance of counsel

on direct appeal”—as is the case here—“because the record is usually insufficient to permit an

adequate review of such a claim.” United States v. Wynn, 663 F.3d 847, 850 (6th Cir. 2011).

Instead, it is more appropriate to raise these claims in a post-conviction proceeding under

28 U.S.C. §2255.      United States v. Catching, 708 F.3d 710, 715 n.3 (6th Cir. 2013).

“An exception exists, however, when the record is adequately developed to allow the court to

properly assess the issue.” Wynn, 663 F.3d at 850 (internal quotation marks omitted). In past

cases, we have found the record to be underdeveloped where there is little to no evidence

regarding the ineffective counsel’s purportedly deficient advice. See, e.g., United States v.

Valdez, 362 F.3d 903, 913 (6th Cir. 2004) (declining to review ineffective assistance of counsel

claim because “[t]here is little evidence in the record regarding what advice, if any, [defendant’s]

trial counsel provided . . . .”); United States v. McCarty, 628 F.3d 284, 296 (6th Cir. 2010)



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No. 14-5959, United States v. Gray


(noting that the appellate brief “consists largely of unsubstantiated allegations without affidavits

from defense counsel or [defendant] to buttress [his] arguments”); United States v. Lawrence,

557 F. App’x 520, 531 (6th Cir. 2014) (noting that ineffective assistance of counsel claims were

“premature” because “[t]here is no affidavit or testimony from [defendant’s] trial counsel

explaining his defense strategy”). See generally Massaro v. United States, 538 U.S. 500, 504-05

(2003) (explaining why it would be inappropriate to review ineffective assistance of counsel

claims on direct appeal).

        Based on the threadbare record here, Gray’s ineffective assistance claim is simply not

ripe for review. Although Gray has provided an affidavit, his allegedly ineffective trial counsel

has not offered an affidavit or given any testimony. Much like the courts in Valdez, McCarty,

and Lawrence, this Court is unable to determine whether “a seemingly unusual or misguided

action by [Gray’s] counsel had a sound strategic motive or was taken because [his] alternatives

were even worse.” Massaro, 538 U.S. at 505. At bottom, the record is not developed enough for

this Court to conclude whether Gray’s counsel complied with Strickland’s constitutional

requirements.

        Without the benefit of an adequately developed record, Gray’s claim for ineffective

assistance of counsel is not ripe for review. Gray, however, may pursue this claim in a petition

for habeas relief.

                B. The district court properly refused Gray’s request for a hearing.

        Gray also argues that the district court should have held an evidentiary hearing. For a

hearing to be required, a defendant must provide an “adequate basis for relief.” United States v.

Mayo, No. 98-5832, 1999 WL 775923, at *2 (6th Cir. Sept. 24, 1999); United States v. Ford,

15 F. App’x 303, 310 (6th Cir. 2001) (explaining that defendant was not entitled to evidentiary



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No. 14-5959, United States v. Gray


hearing where allegations in motion to withdraw plea were “mere conclusions” or “inherently

unreliable”) (quoting United States v. Fountain, 777 F.2d 351, 358 (7th Cir. 1985)); see also

United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (“No hearing need be granted

when the allegations on a motion to withdraw a guilty plea before sentencing merely contradict

the record, are inherently incredible, or are simply conclusory.”)

         Here, Gray has not set forth an adequate basis for relief. As he states in his affidavit,

“I was beside myself and unsure of what to do and Mr. Osborne told me I couldn’t get another

attorney and that if I didn’t enter a guilty plea the Court would put me in jail until another trial

date.” (R. 56-1, Gray Aff., ¶ 4.). But the district court was not convinced and neither are we.

The court emphasized the implausibility of Gray’s logic: “[Gray] would have the [c]ourt believe

that he took the advice of an attorney in whom he had lost faith, and pled guilty at his insistence

to six counts of [mail] fraud carrying the possibility of a combined term of 120 years

imprisonment, just to escape the possibility of being detained for a few months pending a new

trial date with a new lawyer.”1 (R. 67, May 15, 2014 Order, at 5.) Accordingly, the district

court’s denial of Gray’s request for an evidentiary hearing was proper.

                  C. Gray has not otherwise shown a fair and just reason for withdrawal of his
                     plea.

         A defendant may withdraw a guilty plea if “the defendant can show a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). See Pluta, 144 F.3d at 973

         1
           We note here that Gray presented a different set of circumstances in his notice of appeal. In that notice,
he spoke of the second attorney, Joseph Blandford, whom Gray retained. According to Gray, Mr. Blandford advised
him to “go ahead and sign the plea agreement [sic] retain me and we will withdraw the plea at the sentencing
hearing.” (R. 78, Notice of Appeal.) Notably, Gray omits any reference to Mr. Blandford’s performance in the
appellant brief. Furthermore, Mr. Osborne purportedly coerced Gray to plead guilty; if he did not, he would be
“forced to defend himself at trial”—an allegation omitted from the affidavit. (Id.)
          Such issues raised in a notice of appeal, but not in an opening brief, are deemed waived; thus, we need not
consider them for purposes of this opinion. See Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004) (“It is proper
for an appellate court to consider waived all issues not raised in an appellant’s brief, even if the issue has been raised
in a notice of appeal.”) If anything, these inconsistencies confirm that the record is not well-developed enough for
this Court to review the ineffective assistance of counsel claim.

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No. 14-5959, United States v. Gray


(emphasizing defendant’s burden). In determining whether a defendant has shown a “fair and

just reason,” we consider the following factors:

               (1) the amount of time that elapsed between the plea and the
               motion to withdraw it; (2) the presence (or absence) of a valid
               reason for the failure to move for withdrawal earlier in the
               proceedings; (3) whether the defendant has asserted or maintained
               his innocence; (4) the circumstances underlying the entry of the
               guilty plea; (5) the defendant’s nature and background; (6) the
               degree to which the defendant has had prior experience with the
               criminal justice system; and (7) potential prejudice to the
               government if the motion to withdraw is granted.

United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), superseded by guidelines

amendment on other grounds, U.S.S.G. § 3B1.1.

       Although the district court considered all seven factors, Gray’s brief does not address a

single one. Thus, it would be unnecessary for us to consider arguments related to those factors.

See Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003) (stating that an appellant abandons any

argument not raised in an opening brief). Even so, Gray fails to advance a “fair and just reason.”

As the district court concluded, the factors decidedly weigh against Gray:

       1.      Factors one and two—Amount of time elapsed between the plea and the motion to

withdraw, and presence or absence of a valid reason for the failure to move for withdrawal

earlier: The district court considered these factors together, and concluded that they weighed in

favor of Gray. (R. 67, May 15, 2014 Order, at 2.) It found that even though Gray waited thirty

days to file the motion, he took “quick steps to obtain new counsel and the amount of time from

the guilty plea to the motion to withdraw is relatively short under the circumstances.” (Id.) To

give Gray the benefit of the doubt, we do not dispute this analysis.

       2.      Factor three—Gray’s assertion or maintenance of innocence: This factor, as the

district court rightly concluded, weighs against Gray. He pled guilty during the change of plea



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No. 14-5959, United States v. Gray


hearing and in the plea agreement itself. (See R. 59, Plea Hr’g Tr. 20:14-16); (R. 50, Plea

Agreement). Except for his affidavit—filed after the entry of the plea—Gray has not asserted his

innocence.

       3.      Factor four—Circumstances underlying the entry of the guilty plea: Gray does

not dispute that the district court properly conducted the plea hearing in compliance with Fed. R.

Crim. P. 11(b). He instead claims that the plea was not entered voluntarily because of his

counsel’s ineffective assistance. But, as noted in Part III.B above, his explanation for pleading

guilty in the first place is unpersuasive. This factor works against Gray.

       4.      Factors five and six—Gray’s nature and background, and the degree to which he

has had prior experience with the criminal justice system: The district court considered these two

factors together. It found that Gray obtained a GED, and has worked in a factory and in an auto

parts store. (R. 67, May 15, 2014 Order, at 5-6.) Further, as laid out in the pre-sentencing

investigation report, Gray has been convicted of a felony and numerous misdemeanors. (Id.;

R. 70, Final Presentence Investigation Rep.) Thus, these two factors show that Gray understood

the nature of court proceedings at issue here.

       5.      Factor seven—Potential prejudice if the court grants the motion to withdraw:

The district court did not consider this factor, which this Court finds appropriate. See United

States v. Ellis, 470 F.3d 275, 285-86 (6th Cir. 2006) (stating that the “government is not required

to establish prejudice … unless and until the defendant advances and establishes a fair and just

reason for allowing the withdrawal”).

       In sum, the district court noted that the first two factors weighed in favor of Gray. The

remaining factors, however, weighed against him, warranting denial of the motion to withdraw.

We agree with the district court’s conclusion that Gray has failed to establish a fair and just



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No. 14-5959, United States v. Gray


reason for withdrawing his guilty plea. Thus, it did not abuse its discretion in denying the

motion.

                                      CONCLUSION

       We AFFIRM the district court’s denial of Gray’s motion to withdraw.




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