                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0516n.06

                                         Case No. 17-2470

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Oct 17, 2018
UNITED STATES OF AMERICA,                             )                    DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE EASTERN DISTRICT OF
EUGENE JACKSON,                                       )      MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                      )
____________________________________/                 )

Before: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.

       MERRITT, Circuit Judge. This is a direct criminal appeal in which the sole issue is

defendant Eugene Jackson’s claim that the district court abused its discretion in refusing to permit

him to withdraw his guilty plea. We review a district court’s decision to deny a motion to withdraw

a guilty plea for abuse of discretion. See United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998).

We have reviewed the record and find that the district court did not abuse its discretion.

                                                 I.

       In August 2016, Jackson pleaded guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 924(e). Pursuant to his plea agreement, three other federal
Case No. 17-2470, United States v. Jackson


counts were dismissed.1 Plea Agreement at 6. Jackson also agreed to waive “any right he may

have to appeal his conviction on any grounds,” except an appeal based on ineffective assistance of

counsel. Id. at 6-7. The plea agreement also allowed an appeal if his sentence exceeded

235 months, the top of his 188-235 month guideline range. Id. The court sentenced Jackson to a

below-guidelines-range sentence of 180 months in prison, the mandatory minimum. Jackson filed

a timely notice of appeal.

         Jackson retained attorneys Michael Rataj and Jeffrey Osment to represent him below. A

plea hearing was held on August 22, 2016. The district court questioned Jackson on all aspects of

the plea agreement. Hr’g Tr. at 6-10. The court specifically asked Jackson whether his attorney

or anyone else had promised him anything and whether anyone had forced or threatened him to

get him to plead guilty, to which Jackson answered “no.” Id. at 14. The district court accepted his

guilty plea, finding that it was given knowingly, freely and voluntarily.

         In November 2016, three months after Jackson entered his guilty plea, the district court

received a pro se letter from Jackson stating that his relationship with Rataj had become “hostile.”

Jackson asked the court to “withdraw” Rataj and to appoint new counsel, and also stated that he

“would like to withdraw [his] Plea.” He claimed that he had told Rataj that he was innocent, but

that Rataj had “coerced” him to accept the plea. Shortly thereafter, Jackson’s attorneys filed a

motion to withdraw from the representation, asserting that Jackson’s letter contained “blatant

falsehoods” and that the letter demonstrated that there had been a breakdown in the attorney-client

relationship. When counsel appeared in court on January 24, 2017, for a hearing on the motion to

withdraw as counsel, Rataj withdrew his motion, explaining that he and Jackson had “resolved



1
  The three dismissed counts are: (1) possession of a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c); (2) making a false statement in acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6); and
(3) distribution of heroin, in violation of 21 U.S.C. § 841(a)(1).

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Case No. 17-2470, United States v. Jackson


[their] differences.” Hr’g Tr. at 4. Jackson was present at the hearing, and the court asked him if

he and Rataj had resolved their differences and if Jackson still believed Rataj had coerced him to

take a plea. Id. at 6-7. Jackson confirmed that the problems were resolved and that he was prepared

to continue to sentencing with Rataj as his attorney. Id. at 8-9. Based on Jackson’s representations,

the district court permitted counsel to withdraw the motion and continue to represent Jackson.

       Sentencing was set for May 2017, but a week before the new sentencing date, defense

counsel refiled their earlier motion to withdraw their representation of Jackson. That motion was

granted on June 23, 2017 without another hearing, and a new attorney was appointed by the district

court. New counsel filed a motion to withdraw Jackson’s guilty plea on August 16, 2017, almost

a year after the plea hearing. The motion was accompanied by an affidavit in which Jackson

asserted that he was innocent and “went along with the plea” only because his former attorney

“overcame [his] willpower.” Ex. A to Motion to Withdraw at ¶¶ 1, 3. Jackson said that “after the

plea” he told Rataj that he wanted to withdraw it, but Rataj refused to file a motion to withdraw,

explaining that it was not in Jackson’s best interest. Id. at ¶ 3. The motion also alleged that Jackson

received ineffective assistance of counsel concerning his plea because his attorney “downplayed

evidence of [Jackson’s] innocence” and failed to consider the lack of credibility of the government

witnesses. Memorandum in Support of Motion to Withdraw at 4. The district court heard oral

argument and gave its ruling orally a week later. After a thorough analysis of the facts and law,

the district court denied the motion, finding that Jackson’s plea was knowing and voluntary, and

that he had not shown any valid reason to withdraw it. The court also found that Jackson’s

allegations of ineffective assistance of counsel were without merit. Hr’g Tr. at 9-12




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                                                        II.

   A. Plea Waiver

   The government contends that Jackson waived his right to appeal in the plea agreement, except

for claims of ineffective assistance of counsel. As Jackson has raised a claim on appeal that his

counsel was ineffective as it relates to his guilty plea, we will consider the merits of Jackson’s

appeal.

   B. Withdrawal of Guilty Plea Under Rule 11

          Pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a

plea of guilty after the court accepts the plea, but before it imposes sentence, if “the defendant can

show a fair and just reason for requesting the withdrawal.” Rule 11(d)(2)(B) is designed “to allow

a hastily entered plea made with unsure heart and confused mind to be undone . . . .” United States

v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991). A defendant does not have an absolute right

to withdraw a guilty plea and bears the burden of proving that he is entitled to withdraw his guilty

plea. United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). The Sixth Circuit has identified

the following factors to guide district courts in deciding whether to grant a motion to withdraw a

guilty plea:

          (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) [the] potential prejudice
          to the government if the motion to withdraw is granted.


United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (citing United States v. Bashara,

27 F.3d 1174, 1181 (6th Cir. 1994), superseded on other grounds as recognized in United States

v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000)). No one factor controls; the list is general and

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Case No. 17-2470, United States v. Jackson


nonexclusive. Bazzi, 94 F.3d at 1027. The relevance of each factor will vary according to the

“circumstances surrounding the original entrance of the plea as well as the motion to withdraw.”

United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987).

       Jackson concedes that there is little in the plea hearing to “facially” indicate that he was

confused or of “unsure heart” when he entered his plea. Under the Bashara factors, Jackson’s

delay of three months before advising the court that he wanted to withdraw his plea weigh heavily

against him. Jackson concedes that we have often found delays shorter than the one here to be too

long. Our precedent supports this conclusion. See, e.g., United States v. Goldberg, 862 F.2d 101,

104 (6th Cir. 1988) (55-day delay); United States v. Spencer, 836 F.2d 236, 239 (6th Cir. 1987)

(35-day delay). Jackson blames the delay on his attorney, stating that he directed Rataj to withdraw

the plea almost immediately after entering it, but Rataj failed to follow his instructions. Jackson

relies on his affidavit to support his claim that he notified Rataj “on the day of or the day after” he

entered his guilty plea that he wished to withdraw his plea. The record does not support his claim.

       We give little weight to Jackson’s claim in his affidavit because he did not request that the

plea be withdrawn or make any of the claims he later put in his affidavit when, in January 2017,

he appeared before the district court judge for a second time at the hearing on his counsels’ motion

to withdraw. If in fact he had been “coerced” into entering his guilty plea several months before,

as he contends, and if he had directed his attorney to withdraw his guilty plea the day after it was

entered, he should have raised his concerns with the district court judge when he stood before her

in January 2017. Instead, when the court asked Jackson if he and his attorney had resolved their

differences, and whether he still believed Rataj had coerced him to take a plea, Jackson answered

that the problems were resolved and that he was prepared to continue to sentencing with Rataj as

his attorney. Jan. 24, 2017, Hearing on Counsel’s Motion to Withdraw at 6-9. The district court



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specifically asked Jackson twice about any “lack of communication” with his counsel, but Jackson

agreed the problem was “cured” and “repaired,” and that he was satisfied with counsel’s work. Id.

at 6-8. The court also asked Jackson if he continued to believe that he had entered his guilty plea

under “duress,” and Jackson indicated that he no longer felt that way. Id. at 7.

       Turning to the other Bashara factors, we hold that on balance they weigh against Jackson.

Although Jackson has proclaimed his innocence in his affidavit, he failed to assert it when he stood

before the judge in August 2016 at his plea hearing, and again in January 2017 when he appeared

in court on his attorneys’ motion to withdraw. Jackson also maintains he was “confused” because

he had charges against him in both state and federal court simultaneously. But Jackson has

extensive experience with the criminal justice system given his multiple prior convictions, and the

plea agreement here is clear about the facts and law on which it relies. His belated argument that

he was confused about his plea is not persuasive.

       We recognize that Jackson had difficulties with his counsels’ representation at certain

points in the proceeding below, but, when the district court gave him the opportunity to speak for

himself, he did not contradict his attorneys. On balance, we cannot say that the district court

abused its discretion in denying his motion to withdraw his plea. Nor has Jackson demonstrated

that the district court abused its discretion by failing to hold an evidentiary hearing as he has not

put forth sufficient grounds to warrant such a hearing.

       For the foregoing reasons, we affirm the judgment of the district court.




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