UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5666

ANTOINE DWAYNE WELLS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-264-P)

Argued: February 2, 1996

Decided: April 12, 1996

Before ERVIN and MOTZ, Circuit Judges, and BLAKE, United
States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Julian Hugh Wright, Jr., Frank Hilton Lancaster, ROBIN-
SON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for
Appellant. Marlene Yvette Bishop, Assistant United States Attorney,
Robert James Conrad, Jr., Chief, Criminal Division/Assistant United
States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:
Mark T. Calloway, United States Attorney, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Antoine Dwayne Wells, who pled guilty to five drug and firearm
crimes, maintains that his plea and sentences should be vacated
because the district court: (1) failed to act in a timely fashion on his
request for substitution of counsel; (2) at sentencing, denied his
requests to substitute counsel and to withdraw his guilty plea; and (3)
adopted a "blanket rule" against the withdrawal of guilty pleas prior
to sentencing. Finding no reversible error, we affirm.

I.

In December, 1993, Wells was indicted for numerous drug and
firearm offenses and was placed in jail to await trial. While in jail,
Wells sent a handwritten note to the clerk of the district court, which
stated in its entirety:

          Hello! My name is Antoine Dwayne Wells. I would like to
          have another Attorney at law because I feel like Mr. Mar-
          shall A. Swann my Attorney now, is not represent[sic] and
          that he's not going to defend my case for me. Yes, I would
          like to have a copy of my past criminal records sent to me.

          Thank you!

The court file indicates that the letter was received by the clerk's
office on March 11, 1994, and was apparently placed in Wells' file
at some time after that. No action was taken on the letter.

Nearly seven weeks later, on April 25, 1994, the day trial was due
to commence, Wells pled guilty to five of the charges against him. At
that time, the district court engaged Wells in a full Rule 11 colloquy
in which Wells affirmed under oath that he had discussed the indict-

                    2
ment and the consequences of a guilty plea with his attorney, Swann.
Wells further affirmed that he was freely and voluntarily entering the
plea and that he was "entirely satisfied with the service of [his] attor-
ney in this matter." The district court set a sentencing hearing for
August 16, 1994, approximately fifteen weeks later.

Wells made no effort to communicate with the court prior to the
scheduled sentencing. Nevertheless, on the day of sentencing, Wells
informed the court that he would like new counsel and, for the first
time, brought his March note to the court's attention. Wells explained
that he had not wanted to go to trial with Swann as his counsel
because he believed that Swann had lied to him about the availability
of discovery. Wells also asked to withdraw his guilty plea. The dis-
trict court considered and rejected Wells' complaints, ruling that his
guilty plea would stand and that he would not be permitted to substi-
tute counsel. The court ultimately sentenced Wells to forty years
imprisonment.

II.

Wells asserts that the district court denied him his Sixth Amend-
ment rights by failing to "act upon" his request for a new counsel
before the date on which trial was due to commence. Wells claims
that this asserted error "infected" his entry of a guilty plea and, there-
fore, requires that his plea and sentence be vacated. It is unfortunate
that Wells' handwritten note was not brought to the district court's
attention earlier. (Apparently, like the court itself, neither Swann nor
the prosecutors were aware of the note until Wells mentioned it at the
sentencing hearing). However, we cannot conclude that the district
court's failure to act sooner in response to Wells' note constitutes
reversible error.

As Wells' able appellate attorneys remind us, "[a]n essential ele-
ment of the Sixth Amendment's protection" is a defendant's "reason-
able opportunity to secure counsel of his own choosing." United
States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S.
1211 (1988). This right to choose counsel is not without limitation,
however, and consequently, "a defendant does not have an absolute
right to substitution of counsel." United States v. Mullen, 32 F.3d 891,
895 (4th Cir. 1994). Instead, the right is conditioned on a showing of

                     3
"good cause," and the decision as to whether to grant a substitution
lies in the trial court's discretion. Id. We evaluate whether a court
abused its discretion in denying a substitution motion by considering
three factors: "[1] [t]imeliness of the motion; [2] adequacy of the
court's inquiry into the defendant's complaint; and[3] whether the
attorney/client conflict was so great that it had resulted in total lack
of communication preventing an adequate defense." Id. (quoting
Gallop, 838 F.2d at 108); see also United States v. Morsley, 64 F.3d
907, 918 (4th Cir. 1995), cert. denied, 116 S. Ct. 749 (1996).

Although Wells requested new counsel by sending the court a
handwritten note rather than by filing a motion, for purposes of our
analysis here, we will assume that the note was equivalent to a motion
to substitute counsel. As to the first factor in the Mullen test, Mullen
itself teaches that a motion filed seven weeks prior to the trial date is
timely. 32 F.3d at 895-96. Thus, the first factor--the timeliness of the
request for substitution of counsel--weighs in Wells' favor.

The second factor, however, does not. The court below engaged in
an inquiry that, under Mullen, must be regarded as adequate. First,
Mullen makes it clear that it is not necessarily improper for the court
to conduct its inquiry on the day the trial is due to begin. Indeed, in
Mullen, we expressly held that even though the defendant had filed
her motion in a timely manner, the court had conducted an adequate
inquiry by addressing her complaints about counsel on the date trial
was due to commence. Mullen, 32 F.3d at 896. Furthermore, although
the inquiry here (conducted pursuant to Rule 11) was not specifically
triggered by or directed to Wells' handwritten letter and so in this
respect differs from the inquiry found adequate in Mullen, no case
requires that an inquiry be of this specific sort in order to be adequate.1
_________________________________________________________________
1 Contrary to Wells' suggestion, United States v. Malave, 22 F.3d 145
(7th Cir. 1994), does not require such a directed inquiry in response to
a substitution motion. Malave is not pertinent at this point in our discus-
sion because it did not address the question of whether a Rule 11 collo-
quy may suffice to dispose of a substitution motion, but instead
addressed whether a guilty plea could be characterized as "voluntary"
when the defendant expressly stated that he was pleading guilty only
because the trial court's denial of his substitution motion left him "no
choice." Id. at 148.

                     4
Moreover, the substance of the inquiry here was more extensive
than that in Mullen. Among the more than thirty probing questions the
court asked of Wells to ensure he knew what he was doing in plead-
ing guilty, were the following:

         THE COURT: Are you entering the plea of guilty freely
         because you are in fact guilty of the crime charged, because
         you did commit the acts charged in counts One, Two, Six,
         Eight and Nine of the Bill of Indictment which I've just
         been over with you?

         THE DEFENDANT: Yes, Sir.

         THE COURT: Are you entering the plea of guilty freely
         and voluntarily?

         THE DEFENDANT: Yes, sir.

         ...

         THE COURT: Have you had ample time to discuss with
         your attorney the possible defense you may have to these
         charges?

         THE DEFENDANT: Yes, sir.

         THE COURT: Are you entirely satisfied with the service
         of your attorney in this matter?

         THE DEFENDANT: Yes, sir.

         THE COURT: Are you telling the court you (sic) mind if
         (sic) clear, you've heard and understand all parts of the pro-
         ceeding, know what you're doing and want this court to
         accept your plea of guilty?

         THE DEFENDANT: Yes, sir.

         THE COURT: Do you have any questions or statements
         you wish to make to me at this time about what I've just
         said to you?

                   5
          THE DEFENDANT: No, sir.

Wells can hardly complain that the court erred in failing to inquire
more thoroughly into the basis for his dissatisfaction with counsel
when he directly stated, under oath, that he was, in fact, satisfied with
his counsel.

What distinguishes this case from Mullen is the evidence as to the
third factor--whether there was an extensive breakdown in communi-
cation between attorney and client. In Mullen , there was unrebutted
evidence that the defendant and her attorney had not spoken for over
a month before trial; this evidence supported the defendant's claim
that she needed a new attorney and more time to prepare for trial.
When in the face of this evidence the district court nonetheless
required the defendant to go to trial immediately either with her origi-
nal attorney or pro se, she proceeded pro se even though she did not
understand anything about presenting a defense in a criminal trial--
and presented none. Mullen, 32 F.3d at 894. We concluded that this
lack of communication between the defendant and her counsel pre-
vented her assertion of an adequate defense. Id. at 897. There is no
similar evidence in the record of this case. Unlike the defendant in
Mullen, Wells did not continue to insist that he needed a new lawyer
when his trial date arrived. Instead of drawing the court's attention to
his letter or complaining in any manner about his attorney, Wells
swore under oath that he "had ample time to discuss" with his attor-
ney "the possible defense" to the charges against him and that he was
"entirely satisfied" with his attorney's services. This testimony refutes
the existence of an extensive breakdown in communication between
attorney and client.

Accordingly, Wells has not established that the district court's
response to his request to substitute counsel violated his Sixth
Amendment rights.

III.

Wells next contends that the district court erred at the sentencing
hearing in refusing to grant his requests to substitute counsel and to
withdraw his guilty plea.

                     6
A.

We have already concluded that the district court did not err in fail-
ing to permit Wells to substitute counsel at the time of the plea hear-
ing. The same factors apply to determine if the court abused its
discretion in refusing to permit Wells to substitute counsel at sentenc-
ing. As to timeliness, although the issue is a good deal closer in view
of Wells' fifteen weeks of silence after the entry of his plea, we will
assume his request was timely because it was initially made well prior
to the trial date.

However, once again the court's inquiry--particularly in view of
the prior Rule 11 colloquy--was adequate. When apprised of Wells'
complaint and letter, the district court specifically asked Wells the
reason for his dissatisfaction with his counsel. Wells responded that
he believed his counsel had lied to him by telling him a motion for
discovery did not exist. The court then asked Wells' counsel, Swann,
for a response; Swann stated that he had tried to explain to Wells that
the government had an open file policy and, therefore, no motion for
discovery was necessary. Swann indicated that he thought Wells was
upset because Wells knew that other defendants had received written
discovery documents, and Wells believed that Swann was doing a
poor job by failing to provide him with those documents. After con-
sidering the facts, the district court told Wells that because of the gov-
ernment's open file policy, his attorney had access to all relevant
documents and that no substitute counsel could supply Wells with
anything more. The district court's inquiry at the sentencing into the
reasons for Wells' dissatisfaction with his attorney appears to be
roughly comparable to the district court's inquiry in Mullen. See
Mullen, 32 F.3d at 896. Moreover, this inquiry followed the full Rule
11 inquiry at the plea hearing.

Finally, again there is no evidence that the attorney/client conflict
was so great at sentencing that it had resulted in a total lack of com-
munication that prevented an adequate defense. At the sentencing
hearing, Swann stated, without revealing the topic of conversation,
that he had "talked to Wells recently." Additionally, Wells never cited
a breakdown in communication as one of his complaints about his
attorney. Cf. Mullen, 32 F.3d at 894 (defendant emphasized that she
and her attorney had not spoken in more than a month). Furthermore,

                     7
the district court told Wells that he was going to have the same prob-
lems with a new counsel--presumably including a communication
problem--if Wells could not understand the effects of the govern-
ment's open file policy. If the district court had only focused on
whether Wells' attorney was competent, this would have been error.
See United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992). But
here the court addressed Wells' attorney's competence in the context
of its observation that Wells would have the same problem (involving
communication about discovery) with any attorney and therefore
there was, presumably, nothing unique in the complaints Wells had
about Swann. Cf. Morsley, 64 F.3d at 918 ("district court is not com-
pelled to substitute counsel when the defendant's own behavior
creates a conflict"). Accordingly, we find the district court did not
abuse its discretion in denying Wells' motion to substitute counsel
prior to sentencing.

B.

Similarly, we do not find an abuse of discretion in the district
court's refusal to permit Wells to withdraw his guilty plea. A defen-
dant has no absolute right to withdraw a guilty plea. United States v.
Price, 988 F.2d 712, 717 (7th Cir. 1993). Instead, the district court
has discretion as to whether to permit the withdrawal based on a
defendant's showing of "any fair and just reason." Fed. R. Crim. P.
32(d). The court must balance the following factors:

          First, whether the defendant has offered credible evidence
          that his plea was not knowing and voluntary.

          Second, whether the defendant has credibly asserted his
          innocence.

          Third, whether there has been a delay between the entering
          of the plea and the filing of the motion.

          Fourth, whether the defendant has had close assistance of
          competent counsel.

          Fifth, whether withdrawal will cause prejudice to the gov-
          ernment.

                    8
          Sixth, whether withdrawal will inconvenience the court and
          waste judicial resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied,
502 U.S. 857 (1991).

With regard to the first factor, Wells asserted at sentencing that he
would not have pled guilty but for the fact that he mistrusted his attor-
ney. He offered no evidence to support this assertion other than the
inference that can be drawn from his March 11 note to the court
requesting substitute counsel. However, the fact that Wells at one
time desired new counsel provides a weak inference that he would not
have pled guilty but for his dissatisfaction with counsel.2 Unlike the
defendant in Magini (upon which Wells heavily relies), Wells did not
and does not assert that after he pled guilty he learned of new evi-
dence supporting his request for new counsel, let alone does he offer
any evidence to support such a claim. Cf. Magini , 973 F.2d at 264.
Wells specifically stated at the plea hearing that he was entirely satis-
fied with his attorney's services. The Supreme Court noted in
Blackledge v. Allison, 431 U.S. 63 (1977), that"[s]olemn declarations
in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal . . . ." Id. at 74. Accordingly, Wells'
later argument--without any new evidentiary support--that he would
not have pled guilty but for his attorney, contradicted by his solemn
declaration that he was "entirely satisfied" with his attorney, is insuf-
ficient to show that his plea was not voluntary. See United States v.
Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995) (noting that "an appropri-
ately conducted Rule 11 proceeding raises a strong presumption that
the plea is final and binding") (quotation omitted); United States v.
Trussel, 961 F.2d 685, 689 (7th Cir. 1992) ("A defendant who pres-
ents a reason for withdrawing his plea that contradicts the answers he
_________________________________________________________________
2 This case is distinguishable from Malave because in that case the
defendant specifically stated to the court at the plea hearing that he was
pleading guilty because the denial of his substitution motion left him "no
choice." Malave, 22 F.3d at 146. It was only in this context that the Sev-
enth Circuit emphasized the importance of the "great lengths" to which
the trial court had gone to ensure that the defendant's plea was not in fact
the result of the denial of his substitution motion. Id. at 148.

                    9
gave at a Rule 11 hearing faces an uphill battle in persuading the
judge that his purported reason for withdrawing his plea is `fair and
just.'").3

Examination of the remaining factors further demonstrates that
there was no error in refusing to permit Wells to withdraw his plea.
As to the second factor, in requesting to withdraw his plea Wells did
not allege that he was innocent of the crime. Moreover, even if he had
so alleged (as he now argues on appeal), the mere allegation of inno-
cence, without any new evidentiary support, is not entitled to much
weight. Cf. United States v. Cray, 47 F.3d 1203, 1209 (D.C. Cir.
1995) ("A defendant appealing the denial of his motion to withdraw
a guilty plea . . . must do more than make a general denial [of guilt].")
With regard to the third factor, between the date of Wells' entry of
the plea and his motion to withdraw, there was a delay of over fifteen
weeks -- a substantial delay. As to the fourth factor, Wells has not
shown that he was not provided with the close assistance of compe-
tent counsel. See United States v. Lambey, 974 F.2d 1389 (4th Cir.
1992) (requiring proof that the attorney's performance fell below an
objectively reasonable professional standard and that, but for the
attorney's error, the defendant would have gone to trial), cert. denied,
115 S. Ct. 672 (1994); see also United States v. Sparks, 67 F.3d 1145,
1153 (4th Cir. 1995) (same); United States v. DeFreitas, 865 F.2d 80,
82 (4th Cir. 1989) (same). Wells does not allege that his counsel's
conduct was objectively unreasonable. Finally, although there was no
evidence presented as to the fifth and sixth factors, we note that the
trial court and the government would have experienced the typical
scheduling difficulties had the court permitted Wells to withdraw his
plea on the date of sentencing. Balancing the above factors, we cannot
conclude that the district court abused its discretion in refusing to per-
mit Wells to withdraw his plea.
_________________________________________________________________

3 Wells' contention that if everything a defendant concedes at a Rule
11 hearing is binding, then there would never be a successful motion to
withdraw, has some force. However, in this case, Wells' sole argument
in support of his motion to withdraw directly contradicts his sworn
explicit statement at the plea hearing that he was"entirely satisfied" with
Swann.

                     10
IV.

Wells' final argument is that the district court did not balance the
above Moore factors but instead adopted a"blanket rule" that defen-
dants may not withdraw guilty pleas on the date set for sentencing.
The record does not reflect the adoption of a blanket rule. Although
the district court did not specifically cite the Moore decision in mak-
ing its oral ruling, the court addressed the primary concerns set forth
in that decision. In Sparks, we explained that the Moore test is not
rigid, but helps guide the district court to its"inescapably impression-
istic judgment" as to whether the defendant has provided "fair and
just" reasons for withdrawal. Sparks, 67 F.3d at 1154. We noted that
the first, second and fourth Moore factors are the most significant. Id.
The burden is on the defendant to establish these factors. Id.

In seeking to withdraw his guilty plea, Wells asserted to the district
court that he would have gone to trial but for his dissatisfaction with
his attorney. In response to this assertion, the district court reminded
Wells of the questions he had been asked at his Rule 11 hearing and
informed him that the court could not find his plea involuntary when
he said one thing at the plea hearing but now claimed something else
at sentencing; the court "can't sit there and decide what somebody's
thinking if they don't tell me." Thus implicitly the district court con-
cluded, consistent with the first Moore factor, that Wells had provided
insufficient evidence to indicate that his plea was involuntary (his
assertion that he was not satisfied with Swann could not overcome his
sworn statement that he was entirely satisfied with Swann). As to the
second factor, Wells did not allege his innocence in support of his
motion to withdraw and the court specifically found a factual basis for
his guilt (the court stated that the "evidence shows that you [Wells]
are guilty"). With regard to the fourth factor, Wells did not provide
proof that Swann's conduct fell below an objectively reasonable stan-
dard and the court specifically found that Swann had provided compe-
tent representation (the court stated that Swann was a "good attorney"
and had "done everything that I think he could do in [Wells'] case").

In sum, there is no merit to the claim that the district court denied
Wells' request to withdraw his guilty plea based on a "blanket rule"
that defendants cannot withdraw guilty pleas on the date of sentenc-
ing. In fact, the court addressed Wells' argument for withdrawing his

                    11
plea, and the evidence as to the primary Moore factors makes it plain
that the district court did not abuse its discretion in denying Wells'
motion to withdraw his guilty plea.

AFFIRMED

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