                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                                 MAY 29 2014

                                                                              MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                          No. 13-30029

               Plaintiff - Appellee,               D.C. No. 3:11-cr-00274-HA-1

  v.                                               MEMORANDUM*

STEVEN DAVID AVERY,

               Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Oregon
                 Ancer L. Haggerty, Senior District Judge, Presiding

                        Argued and Submitted May 16, 2014
                                 Portland, Oregon

Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.

       In this direct criminal appeal, Appellant Steven Avery contends the district

court erred by failing to treat a pro se1 letter Avery mailed to the district court as a

motion to withdraw Avery’s guilty plea and hold a hearing on the matter. In the

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
       Avery was assisted before the district court at all times by appointed trial
counsel. The district court had also granted Avery’s request to proceed below as
pro se cocounsel.
letter, Avery asserts that he was innocent of the crimes to which he pleaded guilty

and that his counsel coerced him into doing so by telling Avery that he would die

in prison if he did not “throw [himself] on the mercy of the Court.” We affirm the

judgment because we conclude that the district court did not plainly err in failing to

determine whether it should vacate Avery’s plea of guilty in response to his pro se

letter.

          Neither party disputes the fact that Avery mailed the letter to the district

court before the sentencing hearing. The record does not contain any evidence that

the district judge himself received or read the letter. The Government does not

contend in its responsive brief, however, that the district judge was not aware of

the contents of the letter.

          No motion was made to set aside Avery’s guilty plea during the sentencing

proceeding, nor was any reference made to Avery’s pro se letter by him or his

counsel. Avery therefore forfeited his right to present this claim to the district

court. Accordingly we review for plain error. United States v. Olano, 507 U.S.

725, 733 (1993).

          The record is sufficiently developed for us to determine that the facts alleged

in the letter would not have warranted setting aside Avery’s guilty plea. The

district court therefore did not plainly err.


                                              2
      Avery’s letter did not suggest any grounds that would provide a sufficient

basis for allowing him to withdraw his plea. Rule 11(d)(2)(B) of the Federal Rules

of Criminal Procedure permits a criminal defendant to withdraw a guilty plea after

the district court accepts the plea, but before sentencing, if “the defendant can

show a fair and just reason for requesting the withdrawal.” With respect to

Avery’s claim of innocence, the letter offers only a blanket denial of responsibility

and an accusation that a third party had orchestrated the robberies. These claims

are unsupported by a citation to any evidence demonstrating that he was not

involved in the robberies. Nor do his claims overcome the strong presumption of

the veracity of his sworn testimony at his plea hearing that he had aided in the

robberies. A defendant’s subsequent unsupported claim of innocence after

pleading guilty does not qualify as a fair and just reason to withdraw his plea. See

United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990) (district court did not

abuse its discretion in ruling that the defendant’s “unsupported protest” that he was

“being blamed for a lot of stuff [he] didn’t do” “was not a fair and just reason for

withdrawal”); see also United States v. Ross, 511 F.3d 1233, 1237 (9th Cir. 2008)

(“Statements made by a defendant during a guilty plea hearing carry a strong

presumption of veracity in subsequent proceedings attacking the plea.”).




                                           3
      Avery’s contention that his attorney coerced him to plead guilty is

unpersuasive. His letter simply indicates that his counsel made him aware of the

consequences of going to trial. While threats or coercion by an accused’s counsel

may render a plea involuntary under certain circumstances, “[m]ere advice or

strong urging by third parties to plead guilty based on the strength of the state’s

case does not constitute undue coercion.” Iaea v. Sunn, 800 F.2d 861, 867 (9th

Cir.1986).

AFFIRMED.




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