                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   October 20, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 06-8076
 v.                                             (D.C. No. 05-CR-167-1-ABJ)
                                                         (D. Wyo.)
 CHARLES DANA FARLEY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Charles Dana Farley, a Wyoming state prisoner,

challenges the district court’s judgment and, more specifically, its refusal to allow

him to withdraw his guilty plea. Mr. Farley argues that he should be allowed to

withdraw his plea because his counsel was ineffective and he was coerced into

pleading guilty. Our jurisdiction arises under 28 U.S.C. § 1291.



      *
         This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      Mr. Farley’s appellate counsel filed an Anders brief and moved to withdraw

as counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Farley

subsequently filed a pro se response. 1 The government declined to file a brief.

For the reasons set forth below, we discern no meritorious issues for appeal. We,

therefore, grant the attorney’s motion to withdraw and affirm the district court’s

judgment.

                                 BACKGROUND

      Charles Farley was indicted for intending to convey false or misleading

information in violation of 18 U.S.C. § 1038(a)(1)(A). Mr. Farley entered a not

guilty plea at his arraignment. A jury trial was held for four days. The jury

deliberated for two days but could not reach a verdict. The district court declared

a mistrial. A second jury trial commenced. Before Mr. Farley’s last witness

testified, Mr. Farley decided to change his plea to guilty.

      The district court determined that the applicable Guidelines sentencing

range was 63 to 78 months. Mr. Farley was sentenced to a term of 48 months of

imprisonment, based upon a variance under 18 U.S.C. § 3553 for Mr. Farley’s

diminished capacity. Mr. Farley then sought to withdraw his guilty plea.

      Mr. Farley’s trial counsel motioned to withdraw and was allowed to do so.

Substitute counsel was provided, through which Mr. Farley filed a second motion


      1
        As a pro se filing, we give solicitous consideration to Mr. Farley’s
response. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

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to withdraw his guilty plea, seeking to reset the matter for a new jury trial. The

district court denied both of Mr. Farley’s motions to withdraw his plea.

                                    DISCUSSION

      Mr. Farley appeals from the district court’s judgment and claims to have

had ineffective assistance by both trial and appellate counsel. Mr. Farley’s

appellate counsel files his brief pursuant to Anders and seeks to withdraw from

this case. Anders instructs that:

              if counsel finds his case to be wholly frivolous, after a
              conscientious examination of it, he should so advise the court and
              request permission to withdraw. That request must, however, be
              accompanied by a brief referring to anything in the record that
              might arguably support the appeal.

Id. at 744.

      In his Anders brief, counsel for Mr. Farley represents that appeal in this

case conceivably would be meritorious only if (1) the guilty plea was not

voluntary, or (2) Mr. Farley received ineffective assistance of counsel. Counsel

stated, however, that he could find no basis in law or fact for these arguments on

direct appeal. Additionally, we understand Mr. Farley’s pro se response to

principally reiterate the first issue by arguing that his guilty plea was coerced.

After conducting a full examination of the record, we agree with counsel that

there is no basis in law or fact for any of these arguments.

A. Voluntariness of Guilty Plea

      Mr. Farley contends that he was coerced into changing his plea to guilty

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and should, therefore, be permitted to withdraw his plea. Whether there has been

compliance with Rule 11 of the Federal Rules of Criminal Procedure regarding

the acceptance of a defendant’s plea and whether the plea was knowing,

intelligent, and voluntary, is a question of law which is reviewed de novo. United

States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998).

      A valid guilty plea must be knowingly, intelligently, and voluntarily made.

Id.; see also Fed. R. Crim. P. 11(b)(2). Rule 11(d) of the Federal Rules of

Criminal Procedure provides that a defendant may withdraw a plea of guilty: (1)

before the court accepts the plea, for any reason or no reason; or (2) after the

court accepts the plea but before it imposes sentence, if: (a) the court rejects the

plea agreement under Rule 11(c)(5); or (b) the defendant can show a fair and just

reason for requesting the withdrawal. Furthermore, Rule 11(e) states that “[a]fter

the court imposes sentence, the defendant may not withdraw a plea of guilty . . .,

and the plea may be set aside only on direct appeal or collateral attack.” We

review the record and find no evidence for Mr. Farley’s assertions that his plea

was coerced.

      After sentencing, Mr. Farley filed a pro se motion requesting to withdraw

his guilty plea. A hearing was held on this motion, and the district court denied

the motion because of untimeliness and the lack of evidence of coercion. We

agree with the district court that Mr. Farley’s responses during the change of plea

hearing indicate that his plea satisfied the requirements of Rule 11.

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      The district court asked Mr. Farley if he knew the nature of the charge

against him, and he responded that it was “sending a . . . substance through the

mail and tying up emergency vehicles and stuff.” R., Vol. XII, Tr. at 6 (Change

of Plea Hearing, dated Jun. 7, 2006). The district court asked Mr. Farley’s

attorney if there was any reason he could not proceed, and she stated, “No, Your

Honor. We’ve thoroughly discussed the issues, and he’s related them back to me.

I believe he completely understands what’s happening and that he is doing this of

his own volition.” Id. at 8.

      The district court further addressed Mr. Farley:

             Mr. Farley, everything that I can see in this case indicates to me
             that you are competent to proceed in this matter. I’ve observed
             you throughout the course of the trial interacting with your
             counsel, and it appears to have been appropriate throughout. You
             have participated in the jury selection in this case, and your
             counsel has diligently communicated with you throughout the
             trial. Is that [true and accurate?]

Id. Mr. Farley responded, “[S]he has. She’s been a very good attorney.” Id. The

district court asked Mr. Farley if he knew that he was entering into a “cold plea”

arrangement without the benefit of a plea agreement, to which Mr. Farley

responded, “Yes.” Id. at 8-9. The district court informed Mr. Farley that the

court would impose his sentence. Furthermore, the district court advised Mr.

Farley that the court would not allow him to take back his voluntary plea simply

because he was unhappy with his sentence. Mr. Farley indicated that he

understood this advisement. Id. at 9.

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      The district court asked Mr. Farley, “Will your plea of guilty in this matter

be made voluntarily and of your own free will?” Id. Mr. Farley responded, “Yes,

it is.” Id. The district court asked Mr. Farley if he had been promised anything

to cause him to plead guilty, and he answered, “No.” Id. The district court

inquired whether anyone had threatened him with violence or made any threats to

cause him to plead guilty, and Mr. Farley responded, “No.” Id. at 10.

      The district court asked Mr. Farley if he pleaded guilty because he was in

fact guilty of the charge, and Mr. Farley answered affirmatively. Id. The district

court further examined Mr. Farley’s understanding of the charge against him and

his reasoning for pleading guilty. Mr. Farley indicated that he understood the

nature of the charge against him and formally pleaded guilty. Id. at 26.

Moreover, Mr. Farley provided a factual basis for his guilty plea:

             I found out that I got rejected from the fire department, I was
             upset, and I wrote [the fire department chief] a letter. And this
             envelope that I found in the house did have some powdery
             substance in it. And I put the letter in that envelope and sealed
             and put my return address on that envelope and mailed it to the
             fire chief saying that I was upset and – over not getting the job
             and that I would like to possibly take legal action . . . for
             discrimination. . . . I just intended to kind of scare him a little
             bit.

Id. at 26-27. Mr. Farley indicated to the district court that he regretted acting the

way he did. Id. at 27. The district court specifically asked, and Mr. Farley

agreed, that a reasonable person could have believed that the powder contained in

the letter was either a biological weapon or a chemical weapon. Id. at 29. In

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summary, the district court noted for the record that it believed Mr. Farley was

competent, that he voluntarily entered into his plea with knowledge of direct

consequences, and that he provided a factual basis for the plea. Id. at 29-30.

      Mr. Farley contends that he told his trial counsel after the change of plea

hearing and before sentencing that his plea was coerced. He further indicates that

his counsel did not believe his claims. According to Mr. Farley, it was at this

point that his relationship with his lawyer became discordant. Mr. Farley’s trial

counsel motioned to withdraw and was allowed to do so.

      Nearly one month after his sentencing hearing, Mr. Farley filed his pro se

motion to withdraw the guilty plea. His substitute counsel then filed an entry of

appearance and also filed a motion to allow Mr. Farley to withdraw his plea. Mr.

Farley alleged, among other things, that his guilty plea was the result of threats

and coercion. Mr. Farley alleged that certain guards who transported him from

his detention holding facility to his trial told him that he needed to change his

plea to guilty because they were tired of transporting him back and forth from jail

to trial, particularly because of his personal health issues. Mr. Farley alleged that

he feared for his life due to the specter of possible retaliation from the guards and

only requested the change of plea because of that fear.

      Mr. Farley’s argument is without merit. At no time during the change of

plea hearing did Mr. Farley ever mention any threats, fear, or coercion. Mr.

Farley had multiple opportunities at the hearing to bring the alleged threats and

                                         -7-
coercion to the attention of the district court. Mr. Farley, instead, indicated that

he acted on his own volition and even provided a factual basis for his guilty plea.

B. Ineffective Assistance of Counsel

      Mr. Farley argues that he has had ineffective assistance of counsel,

particularly because both his trial and appellate counsel sought to withdraw.

More specifically, Mr. Farley asserts that trial counsel ineffectively represented

him by not permitting him to withdraw his guilty plea. With respect to this issue,

we note only that even if Mr. Farley has a valid claim on these grounds, it is

properly pursued in collateral proceedings rather than on direct appeal because

the record is not properly developed here to permit review. See United States v.

Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006) (“The vast majority of ineffective

assistance of counsel claims should be brought in collateral proceedings rather

than on direct appeal from a conviction.”); see also United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel

claims should be brought in collateral proceedings, not on direct appeal. Such

claims brought on direct appeal are presumptively dismissible, and virtually all

will be dismissed.”). Thus, we dismiss Mr. Farley’s ineffective assistance claim.

                                   CONCLUSION

      For the foregoing reasons, we grant counsel’s motion to withdraw and




                                          -8-
AFFIRM the district court’s judgment.



                                              ENTERED FOR THE COURT



                                              Jerome A. Holmes
                                              Circuit Judge




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