
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1372                                    UNITED STATES,                                      Appellee,                                          v.                                    TODD P. ISOM,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                _____________________               Paul J. Klehm, by Appointment of the Court, for appellant.               _____________               Margaret E. Curran,  Assistant United States Attorney,  with               __________________          whom Sheldon Whitehouse, United  States Attorney, and Lawrence D.               __________________                               ___________          Gaynor,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                     June 7, 1996                                 ____________________                    TORRUELLA,  Chief Judge.  Defendant-Appellant Todd Isom                    TORRUELLA,  Chief Judge.                                ___________          ("Isom") appeals  the district court's  denial of his  request to          withdraw his plea of guilty.   For the reasons stated herein,  we          affirm.                                      BACKGROUND                                      BACKGROUND                    In November 1992, Isom, along with co-defendant Anthony          McKinney  ("McKinney"),  was indicted  on  two counts.    Count I          charged  the two men with conspiracy to distribute and to possess          with intent to  distribute five  grams or more  of cocaine  base.          See 21 U.S.C.   846.  Count II charged them  with possession with          ___          intent to  distribute five grams or more of cocaine base.  See 18                                                                     ___          U.S.C.   2;  21 U.S.C.    841(a)(1), 841(b)(1)(B).  The testimony          at  the probable cause and change of plea hearings indicates that          the  circumstances of  arrest were  as follows.   On  October 26,          1993,  a  confidential  informant, accompanied  by  several  Drug          Enforcement Administration Task Force Agents, taped two telephone          conversations  with  McKinney.    McKinney  agreed  to  meet  the          informant in Providence and sell him two ounces of crack cocaine.          The  rendezvous took  place  as  planned.   McKinney  joined  the          informant and an agent in an undercover vehicle.  When  the agent          asked  to see  the drugs  before allowing  McKinney to  count the          money, McKinney said that  "his guy" was coming with  the "stuff"          and directed the agent  to a nearby  parking lot.  McKinney  then          got out of the car and flagged Isom, who took a clear plastic bag          out of his pants and gave it to McKinney.   After McKinney showed          the  agent some of  the contents of  the bag, the  agent gave the                                         -2-          arrest signal.   Both  co-defendants fled, and  were subsequently          apprehended.    After  receiving  their  Miranda  warnings,  both          defendants  made  statements admitting  possession  of  the crack          cocaine.                    At his arraignment, Isom pled  not guilty.  On  January          14,  1994,  at his  change of  plea  hearing, the  district court          accepted  Isom's1  change  of  plea  to guilty  on  both  counts,          pursuant  to a plea  agreement, which provided,  inter alia, that                                                           __________          Isom  would plea  guilty  and the  government  would recommend  a          sentence at the low end of  the sentencing guideline range or  of          five years, whichever was greater.  At   the   March  18,   1994,          sentencing  hearing, however,  defense  counsel indicated  to the          court  that Isom had informed him that  he did not understand the          change  of  plea,  the  attendant  colloquy,  or  even  the  plea          agreement.   Isom then  addressed the  court  and made  a pro  se                                                                    _______          motion to  withdraw his plea.   Isom began his motion  by stating          that he did not want to withdraw his plea:                         MR. ISOM:  Good  morning.  I just want                      to start  off, your Honor, by  saying I'm                      not  trying to  change  the plea  that  I                      entered the  day that  I said that  I was                      guilty  of  taking  a  bag  from  my  co-                      defendant.    Also  I  want   to  make  a                      statement clearly that I also received it                      from my  co-defendant  to bring  it  down                      there, okay.            Immediately  following these statements,  however, Isom presented          his  reasons to withdraw his plea:   his lack of understanding of                                        ____________________          1   McKinney had already  pled guilty  to the two  counts of  the          indictment.                                         -3-          the plea agreement and ineffective assistance of counsel.                      I feel like this, I  came in here to this                      courtroom  January  14th  to plead  under                      that, but I  did not understand the  plea                      agreement,  and  did  not  see  the  plea                      agreement  until  that  day,  until  that                      morning,  five  minutes before  I entered                      the courtroom.  My lawyer states that  he                      went  over  it with  me.    I don't  have                      copies of nothing, your  Honor, anything,                      not  even discovery package,  nothing.  I                      don't have nothing.   He claims he  came,                      he  discussed  this.    He  claims why  I                      didn't  want copies  of  them.   I  don't                      understand that, your Honor.  I feel like                      this, if he  was -- if I  was supposed to                      have copies  of them,  I  should have had                      copies  of them.  I just feel -- I put in                      a motion to withdraw the plea.            Isom concluded by pleading his innocence.                      I    just    taking   --    taking   into                      consideration and ask you, to beg you, to                      beg  the   Court,  that  you   take  into                      consideration and look at the motion, and                      I'll  go with your decision, whatever you                      decide to grant, whatever you decide your                      go under,  but I really feel  as I should                      have a  chance to  prove my  innocence in                      this  case here.  I'm freely pleading out                      to  something I didn't  even have nothing                      to do with.  Just because I brung the bag                      down  to him, with  the knowledge  of not                      knowing what was in  it, doesn't say that                      I was involved with a drug deal.  I'm not                      a drug  dealer, and I feel I just go from                      my heart that I  should just let you look                      over the motion.  Thank you.          (Sentencing Hearing, at 3-4).  The court refused Isom's motion:                         THE COURT:   Well, it  comes too late,                      to begin with.  I took your  plea here in                      open court,  and  I  asked  you  all  the                      questions,  and you  made  all the  right                      answers --                         MR. ISOM:  Yup.                         THE COURT:  (Continued) -- to plead in                      this matter.                           MR. ISOM:  Yes.                                         -4-                         THE  COURT:    And  you  told  me  you                      understood the plea agreement.                         MR. ISOM: Uh-hum.                         THE  COURT:  And what the Government's                      recommendation was going  to be.  So  I'm                      not  going to  allow you  to pull  out at                      this point.                         MR. ISOM:  Okay.  No problem.          (Sentencing Hearing, at 4-5).  Isom was sentenced to sixty months          in  prison, to be followed  by four years  of supervised release,          and a $100 assessment.                    Ten days  following the sentencing  hearing, a  written          motion  to  withdraw plea  was filed.    Isom's signature  on the          motion, which was apparently  prepared by a paralegal clerk  at a          detention  center,  was  notarized  on  March 15,  prior  to  the          sentencing  hearing.  The written motion stated, inter alia, that                                                           __________          the plea should be withdrawn as it was entered without the proper          advice of counsel, and that Isom did not understand the nature of          the  charge, the  consequences  of the  plea,  or his  rights  in          connection with the plea.   In support of these  contentions, the          motion maintained that  Isom was a functional illiterate, that he          was innocent, and that the  government would suffer no  prejudice          from  withdrawal of Isom's guilty plea.  The reason presented for          withdrawal  was ineffective  assistance  of counsel.   The  court          denied the motion, on the grounds that it was untimely and lacked          substance.  This appeal ensued.                                      DISCUSSION                                      DISCUSSION                    The sole issue before us  is whether the district court          erred  in denying Isom's oral and written motions to withdraw his          plea   of  guilty   without  an   evidentiary  hearing.     After                                         -5-          establishing  our  standard  of  review,  we  set  out  the legal          framework and weigh the merits of Isom's appeal.  For the reasons          discussed below, we affirm the district court.                    A.   Standard of Review                    A.   Standard of Review                         __________________                    The  timing  of a  motion  determines  our standard  of          review:    we  apply an  abuse  of  discretion  standard to  pre-          sentencing motions, see  United States  v. Gray, 63  F.3d 57,  60                              ___  _____________     ____          (1st Cir. 1995), and  a miscarriage of justice standard  to post-          sentencing motions, see  United States v. Ruiz-del  Valle, 8 F.3d                              ___  _____________    _______________          98,  103  (1st Cir.  1993).    Isom made  two  motions, the  pre-          sentencing  oral motion and  the post-sentencing  written motion.          However, as  the written  motion was notarized  before sentencing          occurred, and Isom referred  to it during his oral  motion before          the  sentencing court, the  Government does not  contend that the          more rigorous miscarriage of justice standard should apply to the          written motion.  We  here apply the abuse of  discretion standard          to  both motions without further comment, in part because we find          that even under the  more lenient pre-sentencing standard, Isom's          appeal  must  fail.   See  generally United  States  v. Parrilla-                                ______________ ______________     _________          Tirado, 22 F.3d  368, 371 (1st  Cir. 1994) (noting that  abuse of          ______          discretion  standard is  applied  out of  deference to  the trial          judge's special insight into the dynamics of a case).                    B.   The Legal Framework                    B.   The Legal Framework                         ___________________                    It is by now well established that a defendant does not          have  an absolute right to withdraw a  guilty plea.  See Gray, 63                                                               ___ ____          F.3d at  59; United States v. Austin, 948 F.2d 783, 786 (1st Cir.                       _____________    ______                                         -6-          1991); see also United States v. Kobrosky, 711 F.2d 449, 454 (1st                 ________ _____________    ________          Cir.  1983) (setting out logic behind premise).  Rather, the plea          may be withdrawn "only upon  a showing of 'fair and just  reason'          for  the request."  United  States v. Cotal-Crespo,  47 F.3d 1, 3                              ______________    ____________          (1st Cir.), cert. denied, __  U.S. __, 116 S. Ct. 94  (1995); see                      ____________                                      ___          Fed. R. Crim.  P. 32(e); Austin, 948 F.2d at  786.  The defendant                                   ______          carries the burden of persuading the court that he has shown such          a fair  and just reason.   Parrilla-Tirado,  22 F.3d at  371.   A                                     _______________          court  must  consider  several  factors  in  weighing  whether  a          defendant meets this burden,                      the most significant of which  is whether                      the  plea  was  knowing,   voluntary  and                      intelligent   within   the   meaning   of                      [Federal Rule of Criminal  Procedure] 11.                      The  other factors include:  1) the force                      and plausibility of the proffered reason;                      2) the  timing of the request; 3) whether                      the  defendant  has  asserted  his  legal                      innocence; and 4) whether the parties had                      reached a plea agreement.           Cotal-Crespo,  47 F.3d at 3-4 (citation  omitted); see also Gray,          ____________                                       ________ ____          63 F.3d at 60;  Parrilla-Tirado, 22 F.3d at 371  (omitting fourth                          _______________          factor).   There  is "a  final barrier  that must  be surmounted:          even if a defendant appears at first blush to meet the strictures          of  this four-part test, the nisi prius court still must evaluate          the  proposed plea  withdrawal  in relation  to any  demonstrable          prejudice  that will accrue to the government if the defendant is          permitted to alter his stance."   Id.; see Kobrosky, 711  F.2d at                                            ___  ___ ________          455.                      C.   Analysis                    C.   Analysis                         ________                    In  essence,   Isom  claims  that  his   assertions  of                                         -7-          ineffective assistance of counsel, a lack of understanding of the          plea agreement, and his professed innocence constitute a fair and          just  reason sufficient that the district  court erred in denying          his  motion to withdraw his  change of plea.   Having established          our  basic legal  framework, we  address each  of the  factors in          detail.                      1.  The Rule 11 Colloquy                      1.  The Rule 11 Colloquy                          ____________________                    As noted above, our  first consideration is whether the          plea  was knowing,  voluntary  and intelligent  as understood  in          terms of Rule 11.  "We  have identified three 'core concerns'  of          Rule  11:     1)   absence  of   coercion;  2)   the  defendant's          understanding of the charges; and 3) the defendant's knowledge of          the  consequences of the guilty plea."   Gray, 63 F.3d at 60; see                                                   ____                 ___          Cotal-Crespo,  47 F.3d at  4.   Failure to  address one  of these          ____________          concerns  requires that the guilty  plea be set  aside.  Gray, 63                                                                   ____          F.3d at 60.                        In  determining whether there  has been a                      core violation, we review the totality of                      the circumstances surrounding the Rule 11                      hearing, rather than apply  a "talismanic                      test."  What is critical is the substance                      of  what was  communicated  by the  trial                      court,  and  what should  reasonably have                      been understood by the  defendant, rather                      than the form of the communication.          Cotal-Crespo,  47  F.3d at  4-5  (citation  omitted); see  United          ____________                                          ___  ______          States v. Ribas-Dominicci, 50  F.3d 76, 78  (1st Cir. 1995).   In          ______    _______________          the absence of failure  to address a core concern,  "the question          to be determined is  whether deficiencies in the Rule  11 hearing          affected the defendant's 'substantial rights.'"  Gray, 63 F.3d at                                                           ____                                         -8-          60.   We "review  the  record, including  the change-of-plea  and          sentencing transcripts, with  a view to whether  the omission was          harmless."   United States v. L pez-Pineda, 55 F.3d 693, 696 (1st                       _____________    ____________          Cir.), cert. denied, __  U.S.__, 116 S. Ct. 259  (1995); see Fed.                 ____________                                      ___          R.  Crim. P. 11(h) ("Any variance from the procedures required by          this  rule which  does  not affect  substantial  rights shall  be          disregarded.").  "It is axiomatic that the procedures followed by          the  district  court in  accepting a  plea  are crucial  in later          determining  whether   the  plea  was  truly   understanding  and          voluntary."  Ruiz-del Valle, 8 F.3d at 102.  In the present case,                       ______________          the court conducted  a comprehensive inquiry under  Fed. R. Crim.          P.  11.  In response  to the court's  questioning, Isom confirmed          that  he  had  a ninth-grade  education  and  was  not under  the          influence  of any drug,  medication, or  alcoholic beverage.   He          agreed  that  he  had received  a  copy  of  the indictment,  had          discussed it fully with his counsel, and that he was satisfied by          his counsel's  representation and  advice.  The  court instructed          Isom  to  listen  carefully  as  the  Government  set  forth  the          essentials of the  plea agreement; Isom  agreed that the  account          corresponded to his understanding of  the plea agreement, that he          had signed it  after a full discussion  of it with  his attorney,          and that he  had read it prior  to signing it.   He attested that          there had been no other promises or assurances made him to induce          him to plead guilty, and that there were no attempts to force him          or  coerce him into  doing so.   Isom  further confirmed  that he          understood that he was charged with felony offenses, due to which                                         -9-          he  may be deprived of  certain civil rights;  that he understood          the maximum penalties applicable and  that the guidelines may not          establish the same penalty; that he had discussed  the guidelines          with his attorney; and that he knew the judge would determine the          applicable sentence after a presentence  report.  At the  court's          questioning, Isom also agreed that he  knew he had the right to a          trial with or without a jury, as well as the rights incidental to          a trial, such as the right to counsel.  When the circumstances of          his  arrest, as  described above,  were recounted,  the following          colloquy ensued between the court and Isom:                      Q  Did you hear all that, Mr. Isom?                      A  Yes, I did.                      Q  And are those the facts in your case?                      A   Somewhat.   I  did not  pull anything                      from out of my pants, and I did not -- it                      was in  a plastic  bag, in a  napkin, and                      they did not flee the area, either.                      Q  I'm sorry, they did not what?                      A  I  did not  flee  the  area like  they                      said,  they chased  me.   I  did not  run                      nowhere.                      Q  But you delivered some crack cocaine?                      A  Yes, I did.  Yes.                      Q  You admit to that?                      A  Yes, I do.                      Q  Is there anything else you want to add                      or  subtract  from  what  the  prosecutor                      said?                      A  No.  That's all.          (Change  of Plea  Hearing,  at 12).    The court  reiterated  the          charges against Isom, seeking his confirmation that he understood          them and  that he was prepared to plead guilty to them.  Finally,          finding that Isom's plea  of guilty was knowing and  voluntary as          well  as supported  by an  independent basis  in fact,  the court          accepted Isom's change of plea.                                         -10-                    In his motions  and on appeal,  Isom maintains that  he          did  not  understand either  the plea  agreement  or the  Rule 11          colloquy.   However, he  fails to point to  any specific error or          point of confusion.  Our own examination of the record reveals no          error.   See Ruiz-del Valle, 8 F.3d at 102 (examining  sua sponte                   ___ ______________                            __________          compliance with Rule 11).  The court directly addressed the three          crucial aspects of the colloquy -- whether Isom had been coerced,          whether  he understood the charges, and whether he understood the          consequences of his plea.  Nothing in the  record indicates  that          he  was  coerced  or did  not  understand  the  agreement or  the          colloquy.    Rather,  Isom's  statements are  indicative  of  his          understanding:    he  corrected   the  detailed  account  of  the          circumstances  surrounding his arrest on three particular points,          ultimately  agreeing  that  he   had  in  fact  delivered  crack.          Further,  when the court asked him whether he and his counsel had          come  to  a ballpark  figure  of what  the  applicable sentencing          guidelines would be, he stated:                      A  No  I haven't.    Have I  come to  any                      agreement?                         [DEFENSE COUNSEL]:  No.  Do you have a                      ballpark figure as to --                         THE WITNESS:  Five to forty.                      Q  You  think you're probably going to do                      five years in this case, Mr. Isom?                      A  No.  It was  five to forty, that's all                      I understood what it was.          (Change of Plea  Hearing, at  8).  This  colloquy indicates  that          Isom clearly  understood the possible implications  of his guilty          plea.    Indeed,  defense  counsel testified  at  the  sentencing          hearing that he had spent an hour  and a half going over the plea                                         -11-          agreement with Isom, and that Isom had refused to take any copies          of the agreement or the pre-sentence report.                      At oral argument,  appellant's counsel argued that  the          fact  that the colloquy consisted  of leading questions, to which          defendant merely had to answer  "yes," indicates somehow that  it          was insufficient:   the  court knew  Isom's  reading skills  were          minimal,2 and so it  should have had Isom describe  the agreement          in his own words.    Cf. Cotal-Crespo, 47 F.3d at 6  ("The manner                               ___ ____________          in which the charge  is explained and the method  for determining          the defendant's  understanding of the charge will  vary from case          to  case  depending  upon  the complexity  of  the  charges,  the          capacity of  the defendant, and  the attendant  circumstances.").          We  find no merit in this position.   The charges here are fairly          simple, and,  as appellant's  counsel admitted at  oral argument,          there is no  evidence that  Isom's capacity is  diminished.   The          fact that Isom has had little  formal education does not imply he          is not  intelligent  enough to  understand  a Rule  11  colloquy.          Indeed, his responses  to the court addressed  detailed points of          the testimony, suggesting he was following the discussion in  the          courtroom.  In fact, Isom did not simply agree to  everything the          court asked him, as he now  contends his attorney told him to do:          in the colloquy  quoted above, he  denied that he  had come to  a          ballpark figure of what  the sentencing guidelines would require,          confirming  that with his counsel.  Quite simply, Isom has failed                                        ____________________          2  Defendant testified at the  change of plea hearing that he had          a ninth-grade education.  At the sentencing hearing, however, the          court stated that Isom had a second-grade reading level.                                         -12-          to  meet  his  burden of  demonstrating  that  the  plea was  not          knowing, voluntary, and intelligent.                          2.  Force and Plausibility of Proffered Reason                      2.  Force and Plausibility of Proffered Reason                          __________________________________________                    Isom  must  demonstrate  a  plausible  reason  for  the          withdrawal  of his guilty  plea.  "In  this context, plausibility          must rest on more than the defendant's second thoughts about some          fact  or  point  of  law, or  about  the  wisdom  of his  earlier          decision."  Parrilla-Tirado, 22  F.3d at 371 (citations omitted).                      _______________          The  reasons   Isom  offers   here  are   innocence,  ineffective          assistance of counsel,  and failure to make a voluntary plea.  As          the last reason  has already been discussed  and dismissed above,          we address only the first two here.                    First,  Isom  claims his  innocence.    In his  written          motion,  he  alleges that  he  could  produce wholly  exculpatory          evidence  at trial, but does  not specify its  nature.  Examining          the  record,  we find  that  Isom's  eleventh-hour profession  of          innocence lacks merit, and thus  does not rise to the level  of a          "fair and  just reason" for withdrawal  of his claim.   In United                                                                     ______          States v. Ramos, 810 F.2d 308 (1st Cir. 1987), we  found that the          ______    _____          defendant's claim  of innocence lacked  merit where, as  here, he          did not assert  innocence at the change of plea hearing, but only          at the sentencing hearing, when he had already been convicted for          a  similar crime.   Id.  at 313.   Ramos,  like Isom,  claimed to                              ___          possess  exculpatory information  sustaining  his innocence,  but          provided no insight into its substance.   In these circumstances,          the court in Ramos held  that "the trial court did not  abuse its                       _____                                         -13-          discretion  in  refusing  to   give  weight  to  a  self-serving,          unsupported claim  of innocence  raised judicially for  the first          time after the Rule 11 hearing."  Id.                                            ___                    That finding is  equally true here.   Indeed, Isom  not          only failed to maintain his innocence  at the Rule 11 hearing, he          clarified   specific  points   regarding  the   events,  agreeing          immediately  afterwards that  he  delivered crack  cocaine.   His          claim  of  innocence in  his  oral  motion  followed his  opening          statement that he "received [a bag] from my co-defendant to bring          it down there,  okay."   (Sentencing Hearing, at  3).   Appellant          urges us  to read  this "obvious  confusion" as  highlighting his          need  to  withdraw  his  plea  so  that  he  may  gain  a  better          understanding  of  the legal  issues involved  in  his case.   We          decline  the  invitation,  however,   for  we  interpret   Isom's          contradictory statements as the  Ramos court did that defendant's                                           _____          inconsistent claims  of innocence,  and find Isom's  assertion of          innocence lacks  merit.   Cf.  Parrilla-Tirado,  22 F.3d  at  373                                    ___  _______________          ("Courts   need    not   accept   a    defendant's   explanations          uncritically.").                    Isom   asserts  a   second  "fair  and   just"  reason:          ineffective assistance of counsel.  This   court    applies   the          Strickland  v.  Washington, 466  U.S.  668  (1984), standard  for          __________      __________          evaluating  an ineffective  assistance  of counsel  claim.   See,                                                                       ___          e.g., Ramos, 810 F.2d  at 314.  Thus, to successfully challenge a          ____  _____          guilty  plea,  a  defendant  must show  that,  first,  "counsel's          performance in advising  guilty pleas fell below the  standard of                                         -14-          performance of  reasonable proficient counsel," and  second, that          "by such  inadequate performance, Appellant was  induced to enter          guilty pleas which he otherwise would not have entered."  Austin,                                                                    ______          948 F.2d at 786; see Ramos, 810 F.2d at 314.                             ___ _____                    Isom  contends that  the  district court  erred in  not          holding  an  evidentiary hearing  on  his ineffective  assistance          claim.    As  he  points out,  this  court  has  refused to  hear          ineffective  assistance claims for the first time on appeal where          there is no record on which to rely.  In such cases, we have held          that  such claims  should  be brought  in collateral  proceedings          pursuant to 28  U.S.C.   2255, where  a record may be  developed.          See, e.g., United  States v. Carter, 815 F.2d  827, 829 (1st Cir.          ___  ____  ______________    ______          1987)  (noting  that ineffective  assistance  charges "depend  on          evidentiary  matters that  are  best considered  by the  district          court in the first instance."); Kobrosky, 711 F.2d at 457.                                            ________                      Fairness  to  the  parties  and  judicial                      economy   both   warrant   that,   absent                      extraordinary circumstances, an appellate                      court  will  not consider  an ineffective                      assistance  claim  where no  endeavor was                      first made to determine  the claim at the                      district level.          Austin, 948 F.2d  at 785  (finding that the  appellate court  had          ______          jurisdiction to hear the  claim where it was confined  to matters          in the record).                      Rather than  conclude that  a collateral  proceeding is          appropriate  in the  present case,  however, Isom argues  that we          should  remand for a  full evidentiary hearing on  his claim.  We          remind him that evidentiary hearings are not an entitlement:                                         -15-                      [E]videntiary hearings on motions are the                      exception,  not   the  rule.     We  have                      repeatedly  stated  that,  even   in  the                      criminal  context,  a  defendant  is  not                      entitled  as of  right to  an evidentiary                      hearing  on  a   pretrial  or   posttrial                      motion.    Thus,   a  party  seeking   an                      evidentiary hearing must  carry a  fairly                      heavy burden of demonstrating a  need for                      special treatment.          United  States  v.  McGill, 11  F.3d  223,  225  (1st Cir.  1993)          ______________      ______          (upholding district court refusal  to hold evidentiary hearing on          28  U.S.C.   2255 motion)  (citations omitted); see United States                                                          ___ _____________          v.  Garc a, 954 F.2d 12 (1st Cir. 1992) (upholding district court              ______          refusal  to hold  evidentiary  hearing  on  sentencing  guideline          issue); United States  v. Thompson, 906  F.2d 1292, 1298-99  (8th                  _____________     ________          Cir. 1990)  (finding  that  district  court  did  not  abuse  its          discretion  in  denying  motion  to  withdraw  a  plea  based  on          ineffective assistance without holding evidentiary hearing).   We          also note  that in  neither his oral  nor his written  motion did          Isom request  an  evidentiary  hearing.   See  United  States  v.                                                    ___  ______________          Tardiff,  969 F.2d 1283, 1286  (1st Cir. 1992)  (noting that "the          _______          failure to  ask  the district  court  to convene  an  evidentiary          hearing ordinarily spells defeat for a contention that one should          have been held" on sentencing guidelines issues).                      Isom's  request  that  we  remand  for  an  evidentiary          hearing fails.  Simply  put, having considered the record  of the          hearings as well as the written motion, we find that the district          court's  decision not  to hold  an evidentiary  hearing does  not          constitute an abuse  of its discretion.   See Ramos, 810  F.2d at                                                    ___ _____          314  (noting  that   current  counsel's  "conclusory,   factually                                         -16-          unsupported assertion that [previous]  counsel were negligent . .          .  .  [was]  insufficient  for   us  to  require  an  evidentiary          hearing."); Kobrosky, 711 F.2d at 457 (dismissing charge where no                      ________          extrinsic  evidence was  offered to  buttress the  allegations of          ineffective  assistance or  to  counter the  government's protest          that it  would be prejudiced).   Isom may,  of course,  bring his          ineffective  assistance   of  counsel   claim  in  a   collateral          proceeding  under 28  U.S.C.     2255,  where  a  record  may  be          developed.                    Isom makes the  alternative argument that he  presented          enough information during  his oral  plea for  us to  be able  to          determine that he should be able to withdraw his plea as a result          of ineffective assistance  of counsel.  This argument also fails.          First,  the ineffective  assistance claim  was made  sketchily at          best:  Isom  claimed he did not see the  plea agreement until the          morning,  and that he did not have  copies of any documents.  His          counsel, in turn, stated to the court that he had spent one and a          half hours  going over  the three-page  plea agreement,  and that          Isom had  never asked  for copies  of anything,  but had  in fact          refused copies.  Isom does not contest these representations.  We          cannot  say that  the  district court  abused  its discretion  in          denying the oral motion  when Isom's ineffective assistance claim          was only  briefly made,  where there was  testimony contradicting          his assertions, where he  had stated in his Rule 11 colloquy that          he  signed the agreement  after a full discussion  of it with his          attorney, and where there  was no evidence that Isom  had not, in                                         -17-          fact, understood  the Rule  11  colloquy.   Indeed, the  district          court specifically commended counsel for doing "an excellent job"          for  Isom,   winning  him  the  maximum   guideline  benefits  in          sentencing.                        3.  Timing of the Request                      3.  Timing of the Request                          _____________________                    We  have repeatedly  noted that  the more a  request is          delayed -- even if made before sentence is imposed -- the more we          will  regard it  with  disfavor.   See,  e.g., United  States  v.                                             ___   ____  ______________          Gonz lez-V zquez,  34  F.3d 19,  23  (1st  Cir. 1994);  Parrilla-          ________________                                        _________          Tirado,  22 F.3d at 373.  "The rule of thumb is that the longer a          ______          defendant  waits before  moving to  withdraw his  plea, the  more          potency  his  motion  must  have  in  order  to   gain  favorable          consideration."   Id.   Thus, we have viewed  unfavorably motions                            ___          to withdraw a  plea made  six months following  the guilty  plea,          id.,  seven months later, United  States v. Doyle,  981 F.2d 591,          ___                       ______________    _____          595 (1st Cir. 1992),  three weeks later, United States  v. Keefe,                                                   _____________     _____          621  F.2d 17, 18 (1st Cir.  1980), or thirteen days later, Ramos,                                                                     _____          810 F.2d at 313.   Clearly, Isom's two-month delay in  making his          request  falls  well within  this range.    See United  States v.                                                      ___ ______________          Crosby, 714  F.2d 185,  192 (1st  Cir. 1983)  (upholding district          ______          court's refusal  to grant motion  to withdraw where,  inter alia,                                                                __________          motion was made  eight weeks following  sentencing).  "Given  the          totality of  the circumstances  that pertain  here, [A]ppellant's          lassitude serves  to cast considerable doubt  upon the legitimacy          of his professed reason for seeking to change course."  Gonz lez-                                                                  _________          V zquez, 34 F.3d at 23.          _______                                         -18-                    Isom argues on appeal that the district court erred  in          stating  that the  oral motion  was not  timely.   Indeed,  as he          points out, Fed. R. Crim. P.  32(e) allows a plea to be withdrawn          any time prior to  sentencing if defendant shows a  fair and just          reason.  However,  making a motion to withdraw a  plea two months          following  a  Rule  11 hearing  "complies  with  the  letter, but          certainly  not the  spirit" of Rule  32(e).  Crosby,  714 F.2d at                                                       ______          192.   Isom also emphasizes  that he  made both motions  prior to          sentencing.   This, however, is not a factor courts assessing the          timing of a change of motion plea have given great  weight:  more          significant  has been the fact  that a withdrawal  of plea motion          comes after a presentence report sets out the  possible sentence.          See,  e.g.,   Parrilla-Tirado,  22  F.3d  at   373  (noting  that          ___   ____    _______________          defendant's "belated change of heart followed not  long after the          PSI Report"); Doyle, 981 F.2d at 595 (commenting that motion came                        _____          shortly after discovery that  court was contemplating long prison          sentence).                      Appellant's  next argument,  namely, that  given Isom's          difficulties  with the written word, it was logical that he first          raised  his  motion  to  withdraw   orally  at  his  first  court          appearance following the change  of plea hearing, is inconsistent          with his position that the written motion was actually made prior          to  sentencing.  Indeed, Isom  referred to the  written motion in          his oral motion.                        4.  Assertion of Innocence                      4.  Assertion of Innocence                          ______________________                    An assertion  of innocence weighs the  balance in favor                                         -19-          of  withdrawal; the  failure to  do  so does  the opposite.   See                                                                        ___          Parrilla-Tirado,  22  F.3d  at   373.    Nonetheless,  "the  mere          _______________          protestation of legal innocence cannot in and of itself be issue-          determinative,  for '[t]here are few  if any criminal cases where          the  defendant  cannot  devise  some theory  or  story  which, if          believed by a jury,  would result in his acquittal.'"   Kobrosky,                                                                  ________          711 F.2d at 455 (quoting N  ez-Cordero v. United States, 533 F.2d                                   _____________    _____________          723, 726  (1st  Cir.  1976)).    Thus,  "if  defendant's  factual          contentions  create  no  'legally   cognizable  defense'  to  the          charges, 'he has not effectively denied his culpability,' and the          motion can be  denied."  Ramos, 810  F.2d at 312 (quoting  United                                   _____                             ______          States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) (en banc),  cert.          ______    ______                                 _______    _____          denied,  421 U.S. 1013 (1975)).  Isom's assertion of innocence is          ______          addressed above.                        5.  Other Factors                      5.  Other Factors                          _____________                    Finally, we note  that Isom  did, indeed,  have a  plea          agreement with the government, which was not breached.                      "Since all  the  critical integers  in  the  decisional          calculus counsel affirmance, we need not embark upon an  analysis          of possible prejudice to the government."  Doyle, 981 F.2d at 596                                                     _____          n.6.                                      CONCLUSION                                      CONCLUSION                    For the  reasons discussed above, the  district court's          refusal to grant Isom's motion to withdraw his plea is affirmed.                                                                  affirmed.                                                                 ________                                         -20-
