In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1168

United States of America,

Plaintiff-Appellee,

v.

Christopher M. Hodges,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 40038--Joe B. McDade, Chief Judge.

Argued November 6, 2000--Decided July 30, 2001


  Before Kanne, Diane P. Wood, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Christopher
Hodges pled guilty to conspiracy to
possess with intent to distribute crack
cocaine. After further reflection, Hodges
decided to assert his innocence, withdraw
his plea, and proceed to trial. The
district court, however, rejected his
attempt to withdraw his plea, and Hodges
now appeals that denial. Additionally, he
claims that he received ineffective
assistance of counsel in violation of the
Sixth Amendment. We reject both claims,
and affirm.

I

  Hodges was indicted by a federal grand
jury, on April 22, 1999, for conspiracy
to possess with intent to distribute
cocaine base ("crack cocaine") in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 846. After initially pleading not
guilty at his arraignment, Hodges decided
to meet with the government to discuss an
agreement for his cooperation. On July 8,
1999, he signed a written proffer
agreement and after discussions with the
government, signed a plea agreement,
agreeing to plead guilty that same day.
During his change of plea hearing, the
district court conducted an extensive and
thorough Rule 11 colloquy, discussing,
among other things, the offense, the
consequences of a guilty plea, and the
sentencing guidelines process. At the
conclusion of the Rule 11 colloquy,
Hodges pled guilty.

  On July 27, 1999, Hodges met with a
probation officer for the purpose of
preparing the presentence report ("PSR").
Hodges’ attorney, Gary Koos ("Koos"), did
not attend the meeting, but told Hodges
not to discuss, and requested that the
probation officer not discuss, the facts
of the offense. Rejecting Koos’ advice,
Hodges discussed the facts of the offense
(in several statements unsolicited by the
probation officer), denying that he sold
crack cocaine and accusing one of the
government witnesses of lying. Both
statements were noted by the probation
officer.

  Six days later, on August 2, 1999,
Hodges wrote Koos asking him to withdraw
his guilty plea. However, Koos did not
read the letter, because it was
"inadvertently" placed into Hodges’ file
before he had an opportunity to read it.
The PSR was issued on September 3, 1999,
and on September 20, 1999, when Koos went
to see Hodges to discuss the report, he
found and for the first time read Hodges’
request to withdraw his guilty plea.
Upset over Koos’ failure to return his
calls and file the withdrawal motion,
Hodges refused to talk with Koos.

  Two days later, Hodges sought to have
new counsel appointed, but at a status
hearing on October 8, 1999, he withdrew
that request, and Koos notified the court
of Hodges’ intent to file a motion to
withdraw his guilty plea. His motion,
filed on October 18, 1999, asserted his
innocence and accused the government
witnesses of lying concerning his
involvement. Relying on the Rule 11
colloquy, the district court denied
Hodges’ motion, finding his allegations
conclusory and insufficient to support an
evidentiary hearing, and concluding that
no fair and just reason had been
presented to warrant a withdrawal./1

  At sentencing, on January 7, 2000,
Hodges objected to several parts of the
PSR and took the stand to testify. In his
testimony, he maintained his innocence
and for a third time accused the
government witnesses of lying concerning
his involvement. The government presented
its witnesses Brooks Ezell Turner, III
and Darrius Martin who testified
concerning drug transactions with Hodges
and Hodges’ involvement with Charles
Davis in the distribution of crack
cocaine. On the basis of Hodges’
statements in the PSR interview in July,
the district court denied Hodges an
offense level reduction under the
sentencing guidelines for acceptance of
responsibility and on the basis of his
testimony at the sentencing hearing,
increased his offense level for
obstruction of justice. Hodges was
sentenced to 360 months in prison. He now
appeals.

II

A

  We address Hodges’ ineffective
assistance of counsel claim first. The
Sixth Amendment right of a criminal
defendant "to have the Assistance of
Counsel for his defence," U.S. Const.
amend. VI, guarantees not just
assistance, but also a constitutionally
mandated level of adequate legal
assistance. Strickland v. Washington, 466
U.S. 668, 686-87 (1984). Reviewing
adequacy, courts must measure counsel’s
performance against an objective standard
of reasonableness, with a highly
deferential presumption in favor of the
reasonable exercise of professional
judgment. Id. at 687-90. Defendants must
"identify the acts or omissions of
counsel" that are unreasonable, and
courts must then "determine whether, in
light of all the circumstances, the
identified acts or omissions were outside
the wide range of professionally
competent assistance." Id. at 690. To
prevail, defendants must also show
prejudice as a result of inadequate
assistance. Id. at 687.

  Although Hodges is not short on
criticisms of his trial counsel’s
performance, he is well short of
demonstrating the level of deficiency
that makes an ineffective assistance of
counsel claim./2 Hodges alleges that
Koos (1) failed to attend his PSR
interview; (2) failed to file promptly
his motion to withdraw his guilty plea or
return his phone calls; (3) failed to
provide meaningful advice on and analysis
of his plea agreement or plea colloquy;
(4) failed to inform him of the likely
sentence he would receive; and (5)
requested a continuance of the trial over
his objection. Basically, Hodges asserts
that Koos may as well have not been there
at all./3 That is to say, he attempts
to demonstrate that he was abandoned. In
an abandonment claim, prejudice is
presumed. United States v. Cronic, 466
U.S. 648, 658-60 (1984); Patrasso v.
Nelson, 121 F.3d 297, 304 (7th Cir.
1997); see also United States v. O’Leary,
856 F.2d 1011, 1015 (7th Cir. 1988) ("The
Sixth Amendment right to counsel, of
course, guarantees more than just a warm
body to stand next to the accused during
critical stages of the proceedings; an
accused is entitled to an attorney who
plays a role necessary to ensure that the
proceedings are fair.").

  But Hodges has one fatal problem, which
follows him throughout our analysis:
Hodges has no credible evidence, only his
own unsupported allegations, which are
inadequate. In addition to presenting no
credible evidence to support his
allegations, the record contradicts him
at almost every turn. Taking his
allegations in reverse order, Hodges
himself agreed to Koos’ request for a
continuance of the trial at the status
hearing on June 22, 1999, where after re
ceiving counseling by the district court
on the matter, Hodges stated, "whenever
[Koos] wants I guess is fine with me,
Your Honor." More to the point, Koos
requested a continuance to better prepare
for trial. It seems peculiar, then, that
such conduct, without more, could be the
basis of an ineffective assistance of
counsel claim.

  More serious are Hodges’ allegations
that Koos failed to provide him with an
analysis and explanation of the offered
plea agreement or plea colloquy, or an
accurate prediction of a sentence. See
United States v. Barnes, 83 F.3d 934,
939, 939-40 (7th Cir. 1996) ("When a
defendant considers the government’s
offer of a plea agreement, a reasonably
competent counsel will attempt to learn
all of the facts of the case and to make
an estimate of a likely sentence. Before
he allows his client to plead guilty, the
attorney must also communicate the
results of his analysis of the case.")
(citations omitted). But we have no
credible evidence that Hodges’
allegations are in fact true. We do have
evidence, from Hodges’ Rule 11 colloquy,
that he responded affirmatively to all
the following questions asked by Chief
Judge McDade,

Have you had occasion to discuss
this charge and the case in
general, including any possible
defenses you might have, with
your attorney?

Are you satisfied with the advice
and representation given you in
this matter by your attorney?

Before signing the plea
agreement, did you read through
the plea agreement and discuss
the terms of the plea agreement
with your attorney?

Are you satisfied that you fully
understand the plea agreement and
all of its terms?

Does it fairly and accurately and
completely set forth all
agreements and understandings you
have with the Government about
this charge against you?

and negatively to the following question,

Do you have any complaints about
your attorney’s services that you
wish to bring to my attention at
this time?

We are hard-pressed to find any evidence
of substandard performance.

  Hodges, however, relies on the short
time between the time he and Koos were
first presented with the plea agreement
the day they met with the government and
his guilty plea some time later that day.
In addition, Hodges wrote a letter to the
district court, in which he makes some of
the same claims he presents here--that
Koos stated he would only receive a 188
month sentence and encouraged him to take
the deal, stating that he (meaning Koos)
had never won a case in federal court.
But this is a long way from the type of
credible evidence to support the
misconduct Hodges alleges.

  An ineffective assistance of counsel
claim cannot stand on a blank record,
peppered with the defendant’s own
unsupported allegations of misconduct.
Hodges’ claims may in fact be true; we
fault him not for making the allegations,
but for his failure to support them.

  Hodges also alleges that Koos failed to
return his phone calls and filed his
motion to withdraw his guilty plea late.
But, Hodges recanted any concerns with
Koos’ failure to return his phone calls.
At the motion hearing on October 9, 1999,
when given an opportunity to express his
concerns with Koos’ performance, on his
own request to replace counsel, Hodges
stated "there’s been some differences,
but it’s really not--. . . . Mr. Koos has
talked to me, you know what I’m saying, I
should have understood. . . . I still
want him as my counsel, Your Honor." That
is the only evidence in the record on the
matter.

  And, although it is undisputed that Koos
filed Hodges’ motion to withdraw his
guilty plea significantly later than
Hodges had requested, this failure was
ultimately harmless, and considering the
circumstances his performance was hardly
inadequate. Hodges’ motion was filed,
though late, and Koos made every effort
to make the district court aware that the
failure to file earlier was entirely his
fault. In addition, the district court’s
denial of the motion did not appear to be
influenced by the delay; the district
court never mentioned it in its decision.

  Last, that Koos did not attend Hodges’
PSR interview does not reveal any
inadequacy in Koos’ performance. PSR
interviews are not critical stages in the
proceedings where the presence of an
attorney is required, cf. United States
v. Kinsey, 917 F.2d 181, 183 (5th Cir.
1990) ("Reasoning that a presentencing
interview is not a critical stage of the
proceedings, this circuit has refused to
recognize a right to counsel during a
defendant’s presentencing interview with
a probation officer."), and the absence
of an attorney in such interviews is not
uncommon. We believe, absent peculiar
facts that would suggest otherwise, the
decision whether to attend is better left
to the discretion of the attorney.
Moreover, we see no reason why Koos’
decision was inappropriate.

  Finally, taking Hodges’ allegations as
a whole, we do not believe that Koos
abandoned Hodges, or that his performance
was so inadequate that it was as if no
assistance was provided. Quite the
opposite, all the evidence (beside
Hodges’ unsupported allegations) reveals
Koos was present, effective, and even
satisfactory to Hodges. That Hodges was
satisfied is not decisive; what counts is
whether there is evidence to conclude
that Koos was ineffective. Here, there is
none. Therefore we reject Hodges’
ineffective assistance of counsel claim.

B

  Turning to the next issue, withdrawal of
a guilty plea, Rule 32(e) of the Federal
Rules of Criminal Procedure provides that
a defendant may withdraw a guilty plea on
a showing of "any fair and just reason."
Id. Rule 32(e), however, is not a free-
swinging backdoor. Defendants do not have
an absolute right to withdraw their
guilty plea, United States v. McFarland,
839 F.2d 1239, 1241 (7th Cir. 1988), and
after a thorough Rule 11 colloquy,
defendants face an uphill battle in
demonstrating a fair and just reason.
United States v. Schilling, 142 F.3d 388,
398 (7th Cir. 1998); United States v.
Messino, 55 F.3d 1241, 1248 (7th Cir.
1995). The district court has the
discretion to permit the withdrawal of a
guilty plea, and we review the district
court’s decision for abuse of discretion.
United States v. Pike, 211 F.3d 385, 388
(7th Cir. 2000); United States v. Abdul,
75 F.3d 327, 329 (7th Cir. 1996). We
review the district court’s factual
findings as to whether the defendant has
demonstrated a fair and just reason for
withdrawal for clear error. United States
v. Milquette, 214 F.3d 859, 861 (7th Cir.
2000).

  As the basis for withdrawing his guilty
plea, Hodges claims that he is actually
innocent, despite his lengthy Rule 11
colloquy to the contrary. He claims that
he rushed into a plea agreement and
admission of guilt in his plea hearing,
without adequate assistance of counsel (a
claim we have rejected) and in a state of
confusion, again all contrary to his
statements in his Rule 11 colloquy.
Further, Hodges relies on his swift
recantation (three weeks later), as
evidence of his innocence. Last, he
claims that all the government witnesses
were lying concerning his involvement.

  Legal innocence has been recognized by
this circuit, and rightfully so, as a
fair and just reason to withdraw a guilty
plea. See United States v. Gomez-Orozco,
188 F.3d 422, 425 (7th Cir. 1999); United
States v. Groll, 992 F.2d 755, 758 (7th
Cir. 1993). But a defendant’s bare
protestations of innocence--especially
after a knowing and voluntary guilty plea
in a thorough Rule 11 colloquy--will not
suffice, regardless of how swiftly they
are made. The defendant must proffer some
credible evidence, Gomez-Orozco, 188 F.3d
at 425, and this defendant has proffered
none. When a defendant makes no more than
naked claims of innocence, a court need
not allow the defendant to withdraw his
guilty plea nor allow the defendant an
evidentiary hearing. United States v.
Redig, 27 F.3d 277, 280 (7th Cir. 1994).
We therefore find no clear error in the
district court’s factual findings, which
relied on the Rule 11 colloquy, and no
abuse of discretion in the district
court’s decision not to allow Hodges to
withdraw his guilty plea.

III

  For the foregoing reasons, the judgment
of the district court is Affirmed.


FOOTNOTES

/1 A second motion to withdraw the guilty plea was
filed on November 15, 1999, alleging that the
plea agreement was null and void. That motion was
also denied and is not at issue in this appeal.

/2 For reasons that will become apparent in the
text, we are reluctant to hear, and ordinarily do
not hear, claims of ineffective assistance of
counsel on direct appeal. We will, however, hear
such appeals when the defendant is represented by
a different attorney on appeal and the claim
rests on the trial record alone, if therecord is
complete enough for us to address the claim.
United States v. Martinez, 169 F.3d 1049, 1052
(1999).

/3 The government asserts that this argument has
been waived by Hodges’ plea agreement. But a
valid appellate waiver contained in a plea agree-
ment does not preclude a defendant’s claim that
the plea agreement itself was the product of
ineffective assistance of counsel. Jones v.
United States, 167 F.3d 1142, 1144-45 (7th Cir.
1999).
