United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT.
the Court are Defendant's Motion to Withdraw Guilty Plea
(Doc. 714) and Second Motion to Withdraw Guilty Plea (Doc.
718). Defendant seeks to withdraw his guilty plea entered in
this case on July 29, 2019. (Doc. 629.) In his motions,
Defendant argues that his plea was not intelligently,
knowingly, or voluntarily given because he received
ineffective assistance from his defense counsel, Elizabeth
Pavlis. (Doc. 714; Doc. 718.) Specifically, Defendant
contends that his defense counsel (1) failed to request bond
and demand a speedy trial; (2) failed to provide Defendant
with discovery material such as the wiretap transcripts; (3)
failed to investigate and confront witnesses; and (5)
pressured him to enter a plea of guilty after he
"repeatedly told her [he] wanted a jury trial . . .
." (Doc. 714; Doc. 718.)
the district court has accepted a defendant's plea, but
before sentencing, a defendant may withdraw his guilty plea
if he 'can show a fair and just reason for requesting the
withdrawal.' " United States v. Herring,
216 F. App'x 927, 929 (11th Cir. 2007) (quoting Fed. R.
Crim. P. 11(d)(2)(B)). However, "[t]here is no absolute
right to withdraw a guilty plea." United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994). "The
good faith, credibility and weight of a defendant's
assertions in support of a motion [to withdraw] are issues
for the trial court to decide." United States v.
Buckles, 843 F.2d 469, 472 (11th Cir. 1988).
determining whether a defendant has presented a fair and just
reason for withdrawal, the district court considers the
totality of the circumstances and four specific factors:
(1) whether close assistance of counsel was available; (2)
whether the plea was knowing and voluntary; (3) whether
judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed
to withdraw his plea.
United States v. Williams, No. CR410-257, 2011 WL
2709164, at *2 (S.D. Ga. July 12, 2011) (quoting
Buckles, 843 F.3d at 471-72).
evaluating the totality of the circumstances and the
enumerated factors above, the Court concludes that Defendant
has not shown fair and just cause for the withdrawal of his
plea. First, Defendant does not argue that Ms. Pavlis failed
to communicate with him or meet with him during his
representation. Furthermore, on June 17, 2019, Defendant made
these same arguments regarding the wiretaps and witness
interviews in his Motion to Replace his Court-Appointed
Counsel (Doc. 602), which the Magistrate Judge denied after
holding a hearing on June 25, 2019 (Doc. 611). The Magistrate
Judge found that, up to the date of the hearing, there had
been sufficient communication between Ms. Pavlis and
Defendant. (Doc. 611.) This hearing was only a month before
Defendant pleaded guilty on July 29, 2019. The Magistrate
Judge also found that Ms. Pavlis did not improperly refuse to
file motions on Defendant's behalf because she conducted
the requisite legal research on the matters and determined
that the motions requested by Defendant would be meritless.
(Id. at 4.) Finally, the Magistrate Judge stated
that Ms. Pavlis' performance in this case
"provide[s] not a scintilla of doubt of the adequacy of
her representation." (Id. at 5.)
the second factor, "[i]n the Eleventh Circuit, a guilty
plea is considered knowing and voluntary if (1) the guilty
plea is free from coercion, (2) the defendant understands the
nature of the charges against him, and (3) the defendant
knows and understands the consequences of his guilty
plea." Williams, 2011 WL 2709164, at *2 (citing
United States v. Mosley, 173 F.3d 1318, 1322 (11th
Cir. 1999)). Defendant's argument that Ms. Pavlis
pressured him into a guilty plea is meritless. He makes no
specific allegations as to how she "manipulated"
him or why he did not request a jury trial at his Rule 11
hearing. Additionally, Defendant acknowledged in his colloquy
that he understood the charges against him and the
consequences of his plea. "There is a Strong presumption
that the statements made during the [plea] colloquy are
true." Medlock, 12 F.3d at 187. Consequently, a
defendant "bears a heavy burden to show his statements
[under oath] were false." United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Defendant
has not met this high burden of showing that his statements
under oath were unknowing, involuntary, or false.
Court need not address the last two factors because Defendant
has not satisfied the first two factors. See United
States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir.
1987). Accordingly, Defendant's Motion to Withdraw Guilty