UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4689

ARTHUR ALLEN HALEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-96-669)

Submitted: August 20, 1998

Decided: September 18, 1998

Before ERVIN and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant. Isa-
belle Katz Pinzler, Acting Assistant Attorney General, Jessica Dunsay
Silver, Lisa Wilson Edwards, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Arthur Allen Haley appeals his convictions for conspiracy against
the rights of citizens, in violation of 18 U.S.C.A.§ 241 (West Supp.
1998); use of fire to commit the offense of conspiracy against the
rights of citizens, in violation of 18 U.S.C.A.§ 844(h)(a) (West Supp.
1998); and aiding and abetting, in violation of 18 U.S.C.A. § 2 (West
Supp. 1998). Haley alleges that the district court erred in refusing to
allow him to withdraw his guilty plea. Finding no merit to his claim,
we affirm.

The record shows that Haley was a member of the Ku Klux Klan
and was involved in the burning of a black church and a migrant
camp. Haley originally employed private counsel to represent him,
who represented him through the tendering of the guilty plea on
December 9, 1996. Subsequent to the acceptance of the guilty plea by
the district court, Haley was sent to a Federal Correctional Institution
(FCI) at Butner, North Carolina, for a presentence study of his mental
and physical health. Haley sent a letter to the district court on Febru-
ary 27, 1997, stating his desire to withdraw his plea of guilty. On Feb-
ruary 28, 1997, the Mental Health Division of the FCI completed its
presentence report on Haley and submitted it to the district court (FCI
report). On March 10, 1997, Haley filed a pro se motion to have his
counsel relieved and to have new counsel appointed. He also filed two
motions requesting the court to allow him to withdraw his guilty plea.

The district court appointed current counsel, and Haley, through his
counsel, filed a supplemental motion with memorandum in support of
his previously filed motion to withdraw his guilty plea. After holding
a hearing on the motion to withdraw on July 3, 1997, the court denied
the motion. Haley was sentenced to a term of 258 months imprison-
ment.

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On appeal, Haley contends that the district court erred in denying
his motion to withdraw his guilty plea because his plea was not given
knowingly or voluntarily.

This court reviews a trial court's refusal to allow a defendant to
withdraw his guilty plea for an abuse of discretion. See United States
v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). A defendant does not
have an absolute right to withdraw a guilty plea, see United States v.
Ewing, 957 F.2d 115, 119 (4th Cir. 1992), but must present a "fair and
just" reason. See Fed. R. Crim. P. 32(e). A "fair and just reason" is
one that "essentially challenges . . . the fairness of the Rule 11 pro-
ceeding." United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992). An appropriately conducted proceeding pursuant to Fed. R.
Crim. P. 11, however, raises a strong presumption that the guilty plea
is final and binding. Id. A district court should consider the following
factors in determining whether to allow a defendant to withdraw his
plea: (1) whether there has been a delay between the guilty plea and
the motion to withdraw; (2) whether the defendant has had the assis-
tance of competent counsel; (3) whether the defendant has made a
credible assertion of legal innocence; (4) whether there is credible
evidence that the guilty plea was not knowing and voluntary; and (5)
whether withdrawal will prejudice the government or will cause
inconvenience to the court and waste judicial resources. See United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The defendant
bears the burden of establishing a fair and just reason even if no prej-
udice to the government is shown. See Lambey, 974 F.2d at 1393-94.

The district court expressly considered the above factors and found
no fair and just reason to allow Haley to withdraw his plea. As the
district court found, a review of the Moore factors weighs against
allowing Haley to withdraw his plea. 931 F.2d at 248. Haley does not
dispute that the district court conducted a thorough and proper plea
hearing. See FRCP 11. Thus, there is a strong presumption that the
guilty plea was final and binding. See Lambey , 974 F.2d at 1394.
Haley, however, claims that his testimony at the plea hearing should
be tempered by his testimony at the July 3 hearing on the motion to
withdraw his guilty plea. At that hearing, he claimed that his guilty
plea "was made up or conjured up, worded to suit the prosecution."
He argued that the only reason he pled guilty was to receive adequate
medical and psychiatric treatment. He further argued that at the time

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he pled guilty he did not know what he was saying because of his
medical condition.

During his plea hearing, however, Haley testified that although he
had taken medication prescribed by his physician within twenty-four
hours of the hearing, it did not have an affect on his ability to under-
stand what was going on at the plea hearing. He further testified that
he understood what was happening. Haley's counsel testified that he
did not have any concern as to whether the medications Haley had
been prescribed affected his ability to understand what was happening
during his conversations with his counsel and the Government. We
note that while Haley's health may have improved between the time
that he pled guilty and the hearing on his motion to withdraw his
guilty plea, there was no evidence that at the time he pled guilty he
was unable to understand the proceeding.

Medical evidence as to Haley's health is also consistent with the
district court's finding that Haley was competent to enter a guilty
plea. Prior to entering into the plea agreement, Haley was examined
by medical experts at the South Carolina Department of Mental
Health and a report of that examination was sent to the district court.
The report stated that Haley suffered from Panic Disorder with Ago-
raphobia and an Adjustment Disorder with Anxiety and medication
has helped control his panic attacks. The report further stated that
Haley was "alert, cooperative, oriented to time place and person and,
mildly restless without movement disorder." Lastly, the report stated
that "Haley's cognition was grossly intact." The FCI report prepared
after Haley pled guilty confirmed that he suffered from a long history
of Panic Disorder with Agoraphobia. The report stated that Haley was
"awake, alert, and oriented appropriately," and did not display any
abnormal involuntary movements, abnormal speech, looseness of
associations, nor did he appear to be in acute distress. The report's
psychological evaluation revealed that Haley "was not suffering from
a severe psychological problem."

The evidence further contradicts Haley's claim that he pled guilty
in exchange for receiving proper medical treatment. Haley testified at
the July 3 hearing that during his incarceration prior to entering the
guilty plea he received medication to control his panic disorder. Fur-
thermore, Haley's counsel testified at the July 3 hearing that he never

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informed Haley that unless he pled guilty he would be denied medical
treatment.

Addressing the remaining Moore factors, although Haley claims
that he is innocent, he does not offer any specific explanation refuting
his guilt, which he admitted at his plea hearing. An unsubstantiated
claim of innocence does not satisfy Haley's burden of showing a fair
and just reason to withdraw his guilty plea. Also, Haley pled guilty
on December 9, 1996, and did not express his desire to withdraw his
guilty plea until February 27, 1997. See Moore , 931 F.2d at 248 (find-
ing six-week delay in filing motion to withdraw guilty plea to be
long). Furthermore, Haley had competent assistance of counsel at his
plea hearing. At his plea hearing, Haley testified that he was satisfied
with his counsel's representation, his counsel had done everything
asked of him, and he had plenty of time to discuss both the charges
against him and the terms of the plea agreement. Lastly, as the district
court recognized, the remaining factors, prejudice to the Government
and waste of judicial resources, weighed less heavily although in
favor of denying Haley's motion. Therefore, we find that the district
court did not abuse its discretion in denying Haley's motion to with-
draw his guilty plea. See Craig, 985 F.2d at 178.

Accordingly, we affirm Haley's convictions. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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