USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1372

UNITED STATES,

Appellee,

v.

TODD P. ISOM,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Aldrich, Senior Circuit Judge,

____________________

and Selya, Circuit Judge.

_____________

_____________________

Paul J. Klehm, by Appointment of the Court, for appellant.

_____________
Margaret E. Curran,
__________________

Assistant United States Attorney,

whom Sheldon Whitehouse, United

__________________
Gaynor,
______

Assistant

United States

with

States Attorney, and Lawrence D.

___________
Attorney,

were

on brief

for

appellee.

____________________

June 7, 1996
____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

Defendant-Appellant Todd Isom

("Isom") appeals

the district court's

withdraw his plea of guilty.

denial of his

request to

For the reasons stated herein,

we

affirm.

BACKGROUND
BACKGROUND

In November 1992, Isom, along with co-defendant Anthony

McKinney

charged

("McKinney"),

was indicted

distribute five

See 21 U.S.C.
___

846.

intent to

at

the

two counts.

Count I

the two men with conspiracy to distribute and to possess

with intent to

U.S.C.

on

grams or more

Count II charged them

of cocaine

with possession with

distribute five grams or more of cocaine base.

2;

21 U.S.C.

base.

841(a)(1), 841(b)(1)(B).

See 18
___

The testimony

the probable cause and change of plea hearings indicates that

circumstances of

arrest were

as follows.

On

October 26,

1993,

confidential

informant, accompanied

by

several

Drug

Enforcement Administration Task Force Agents, taped two telephone

conversations

with

McKinney.

McKinney

agreed

to

meet

the

informant in Providence and sell him two ounces of crack cocaine.

The

rendezvous took

place

as

planned.

McKinney

informant and an agent in an undercover vehicle.

asked

to see

the drugs

before allowing

money, McKinney said that

and directed the agent

the

When

the agent

McKinney to

count the

"his guy" was coming with

to a nearby

joined

parking lot.

the "stuff"

McKinney

then

got out of the car and flagged Isom, who took a clear plastic bag

out of his pants and gave it to McKinney.

the

agent some of

the contents of

-2-

After McKinney showed

the bag, the

agent gave the

arrest signal.

apprehended.

defendants

Both

After

made

co-defendants fled, and

receiving

their

statements admitting

were subsequently

Miranda

warnings,

possession

of

both

the crack

cocaine.

At his arraignment, Isom pled

14,

1994,

accepted

at his

Isom's1

change of

change

of

not guilty.

plea

hearing, the

plea

to guilty

on

On

January

district court

both

counts,

pursuant

Isom

to a plea

would plea

agreement, which provided,

guilty

and the

sentence at the low end of

court

change

hearing, however,

At

the

defense

that Isom had informed him that

of

agreement.

motion to

plea,

the

attendant

Isom then

would recommend

the sentencing guideline range or

five years, whichever was greater.

sentencing

government

inter alia, that

__________

withdraw his plea.

1994,

counsel indicated

to the

he did not understand the

court

or

even

and made

Isom began his motion

that he did not want to withdraw his plea:

MR. ISOM:
to start
not

Good

entered the
guilty

morning.

I just want

off, your Honor, by

trying to

change

day that

saying I'm

the plea

that

I said that

of

taking

bag

defendant.

Also

want

of

18,

colloquy,

addressed the

March

from
to

I was
my
make

coa

the

plea

a pro se
_______

by stating

statement clearly that I also received it

from my

co-defendant

to bring

it

down

there, okay.

Immediately

his

following these statements,

reasons to withdraw his plea:

however, Isom presented

his lack of understanding of

____________________

McKinney had already

pled guilty

indictment.

-3-

to the two

counts of

the

the plea agreement and ineffective assistance of counsel.

I feel like this, I

courtroom

January

that, but I

and

agreement

until

did

five

over

not

that

it with

me.

discussed

plea

the

plea

until

that

I entered

I don't

have

nothing.

He claims he

this.

want copies

he

Honor, anything,

even discovery package,

didn't

under

My lawyer states that

don't have nothing.

he

see

day,

copies of nothing, your

not

to plead

minutes before

the courtroom.
went

14th

did not understand the

agreement,

morning,

came in here to this

He
of

came,

claims why

them.

understand that, your Honor.

don't

I feel like

this, if he

was -- if I

was supposed to

have copies

of them,

should have had

copies

of them.

I just feel -- I put in

a motion to withdraw the plea.

Isom concluded by pleading his innocence.

just

taking

--

taking

into

consideration and ask you, to beg you, to

beg

the

Court,

that

you

take

into

consideration and look at the motion, and

I'll

go with your decision, whatever you

decide to grant, whatever you decide your

go under,
have a
this
to

but I really feel

chance to

prove my

case here.

down

innocence in

I'm freely pleading out

something I didn't

to do with.

as I should

even have nothing

Just because I brung the bag

to him, with

the knowledge

knowing what was in

of not

it, doesn't say that

I was involved with a drug deal.

a drug

I'm not

dealer, and I feel I just go from

my heart that I

should just let you look

over the motion.

Thank you.

(Sentencing Hearing, at 3-4).

THE COURT:

Well, it

to begin with.
open court,
questions,

The court refused Isom's motion:

comes too late,

I took your

and

and you

asked
made

plea here in
you

all

all the

the
right

answers -MR. ISOM:

THE COURT:

Yup.
(Continued) -- to plead in

this matter.
MR. ISOM:

Yes.

-4-

THE

COURT:

And

you

told

me

you

understood the plea agreement.

MR. ISOM: Uh-hum.
THE

COURT:

And what the Government's

recommendation was going

to be.

not

to pull

going to

allow you

So

I'm

out at

this point.
MR. ISOM:

Okay.

(Sentencing Hearing, at 4-5).

in

prison, to be followed

No problem.

Isom was sentenced to sixty months

by four years

of supervised release,

and a $100 assessment.

Ten days

motion

to

following the sentencing

withdraw plea

was filed.

motion, which was apparently

detention

sentencing

center,

was

hearing.

hearing, a

written

Isom's signature

on the

prepared by a paralegal clerk

notarized

on

March 15,

prior

at a

to

the

The written motion stated, inter alia, that

__________

the plea should be withdrawn as it was entered without the proper

advice of counsel, and that Isom did not understand the nature of

the

charge, the

consequences

connection with the plea.

motion maintained that

In support of these

or his

rights

in

contentions, the

government would suffer no

withdrawal of Isom's guilty plea.

withdrawal

plea,

Isom was a functional illiterate, that he

was innocent, and that the

from

of the

was ineffective

assistance

prejudice

The reason presented for

of counsel.

The

court

denied the motion, on the grounds that it was untimely and lacked

substance.

This appeal ensued.

DISCUSSION
DISCUSSION

The sole issue before us

is whether the district court

erred

in denying Isom's oral and written motions to withdraw his

plea

of

guilty

without

an

evidentiary

-5-

hearing.

After

establishing

our

standard

of

review,

we

set

framework and weigh the merits of Isom's appeal.

out

the legal

For the reasons

discussed below, we affirm the district court.

A.
A.

Standard of Review
Standard of Review
__________________

The

timing

review:

we

of a

apply an

sentencing motions, see

___

(1st Cir. 1995), and

103

(1st Cir.

sentencing

However, as

abuse

of

determines

our standard

discretion

United States
_____________

standard to

v. Gray, 63
____

F.3d 57,

a miscarriage of justice standard

sentencing motions, see

___

98,

motion

pre-

60

to post-

United States v. Ruiz-del Valle, 8 F.3d

_____________
_______________

1993).

oral motion and

the written

of

Isom made

two

motions, the

the post-sentencing

motion was notarized

pre-

written motion.

before sentencing

occurred, and Isom referred

the

sentencing court, the

to it during his oral

Government does not

motion before

contend that the

more rigorous miscarriage of justice standard should apply to the

written motion.

to

We

here apply the abuse of

discretion standard

both motions without further comment, in part because we find

that even under the

appeal

must

fail.

Tirado, 22 F.3d
______

discretion

more lenient pre-sentencing standard, Isom's

See generally United States

______________ ______________

368, 371 (1st

standard is

v. Parrilla_________

Cir. 1994) (noting that

applied

out of

deference to

abuse of

the trial

judge's special insight into the dynamics of a case).

B.
B.

The Legal Framework

The Legal Framework
___________________

It is by now well established that a defendant does not

have

an absolute right to withdraw a

guilty plea.

See Gray, 63
___ ____

F.3d at

59; United States v. Austin, 948 F.2d 783, 786 (1st Cir.
_____________
______

-6-

1991); see also United States v. Kobrosky, 711 F.2d 449, 454 (1st
________ _____________
________

Cir.

1983) (setting out logic behind premise).

may be withdrawn "only upon

for

the request."

Rather, the plea

a showing of 'fair and just

United States v. Cotal-Crespo,

______________
____________

reason'

47 F.3d 1, 3

(1st Cir.), cert. denied, __

____________

Fed. R. Crim.

U.S. __, 116 S. Ct. 94

P. 32(e); Austin, 948 F.2d at

______

786.

(1995); see
___

The defendant

carries the burden of persuading the court that he has shown such

a fair

court

and just reason.

must

consider

Parrilla-Tirado,
_______________

several

factors

in

22 F.3d at

weighing

371.

whether

defendant meets this burden,

the most significant of which

the

plea

was

intelligent

knowing,
within

The

voluntary

and

meaning

of

the

[Federal Rule of Criminal

is whether

Procedure] 11.

other factors include:

1) the force

and plausibility of the proffered reason;

2) the
the

timing of the request; 3) whether

defendant

has

asserted

his

legal

innocence; and 4) whether the parties had

reached a plea agreement.

Cotal-Crespo,
____________

47 F.3d at 3-4 (citation

omitted); see also Gray,

________ ____

63 F.3d at 60;

factor).

Parrilla-Tirado, 22 F.3d at 371

_______________

There

is "a

final barrier

(omitting fourth

that must

be surmounted:

even if a defendant appears at first blush to meet the strictures

of

the

this four-part test, the nisi prius court still must evaluate

proposed plea

prejudice

withdrawal

in relation

to any

demonstrable

that will accrue to the government if the defendant is

permitted to alter his stance."

Id.; see Kobrosky, 711

___ ___ ________

F.2d at

455.

C.
C.

In

Analysis
Analysis
________

essence,

Isom

claims

-7-

that

his

assertions

of

ineffective assistance of counsel, a lack of understanding of the

plea agreement, and his professed innocence constitute a fair and

just

reason sufficient that the district

his

motion to withdraw his

our

basic legal

court erred in denying

change of plea.

framework, we

address each

Having established

of the

factors in

detail.

1.
1.

The Rule 11 Colloquy

The Rule 11 Colloquy
____________________

As noted above, our

first consideration is whether the

plea

was knowing,

voluntary

as understood

in

have identified three 'core concerns'

of

terms of Rule 11.

"We

Rule

absence

11:

1)

of

and intelligent

coercion;

2)

the

defendant's

understanding of the charges; and 3) the defendant's knowledge of

the

consequences of the guilty plea."

Cotal-Crespo,
____________

concerns

47 F.3d at

4.

Gray, 63 F.3d at 60; see

____
___

Failure to

requires that the guilty

address one

plea be set

aside.

F.3d at 60.

In

determining whether there

has been a

core violation, we review the totality of

the circumstances surrounding the Rule 11
hearing, rather than apply
test."
of

What is critical is the substance

what was

court,

a "talismanic

and

communicated
what should

been understood by the

by the

trial

reasonably have
defendant, rather

than the form of the communication.

of these

Gray, 63
____

Cotal-Crespo,
____________

47

F.3d at

4-5

States v. Ribas-Dominicci, 50
______
_______________

the absence of failure

to be determined is

(citation

F.3d 76, 78

omitted); see
___

(1st Cir. 1995).

to address a core concern,

affected the defendant's 'substantial rights.'"

In

"the question

whether deficiencies in the Rule

-8-

United
______

11 hearing

Gray, 63 F.3d at
____

60.

We "review

the

record, including

sentencing transcripts, with

harmless."

this

U.S.__, 116 S. Ct. 259

rule which

district

does

not affect

court in

accepting a

Ruiz-del Valle, 8 F.3d at 102.

______________

the court conducted

he

In response

had

the

plea

plea

voluntary."

11.

rights shall

be

"It is axiomatic that the procedures followed by

whether

that

(1995); see Fed.

___

substantial

determining

P.

the omission was

Crim. P. 11(h) ("Any variance from the procedures required by

disregarded.").

the

a view to whether

and

United States v. L pez-Pineda, 55 F.3d 693, 696 (1st

_____________
____________

Cir.), cert. denied, __

____________

R.

the change-of-plea

was

truly

are crucial

understanding

a ninth-grade

and

In the present case,

a comprehensive inquiry under

to the court's

in later

Fed. R. Crim.

questioning, Isom confirmed

education

and

was

not under

the

influence

agreed

of any drug,

that

he

medication, or

had received

copy

alcoholic beverage.

of

the indictment,

He

had

discussed it fully with his counsel, and that he was satisfied by

his counsel's

Isom

to

representation and

listen

carefully

essentials of the

as

advice.

the

had signed it

and that he

after a full discussion

had read it prior

court instructed

Government

plea agreement; Isom

corresponded to his understanding of

The

set

forth

agreed that the

the

account

the plea agreement, that he

of it with

to signing it.

his attorney,

He attested that

there had been no other promises or assurances made him to induce

him to plead guilty, and that there were no attempts to force him

or

coerce him into

doing so.

Isom

further confirmed

that he

understood that he was charged with felony offenses, due to which

-9-

he

may be deprived of

certain civil rights;

the maximum penalties applicable and

that he understood

that the guidelines may not

establish the same penalty; that he had discussed

the guidelines

with his attorney; and that he knew the judge would determine the

applicable sentence after a presentence

questioning, Isom also agreed that he

report.

At the

court's

knew he had the right to a

trial with or without a jury, as well as the rights incidental to

a trial, such as the right to counsel.

his

arrest, as

described above,

When the circumstances of

were recounted,

the following

colloquy ensued between the court and Isom:

Did you hear all that, Mr. Isom?

Yes, I did.

And are those the facts in your case?

Somewhat.

did not

pull anything

from out of my pants, and I did not -- it

was in

a plastic

bag, in a

napkin, and

they did not flee the area, either.

Q

I'm sorry, they did not what?

did not

said,

flee

they chased

the
me.

area like
I

did not

they
run

nowhere.
Q

But you delivered some crack cocaine?

Yes, I did.

You admit to that?

Yes, I do.

Is there anything else you want to add

or

subtract

Yes.

from

said?
A

No.

That's all.

what

the

prosecutor

(Change

of Plea

Hearing,

at 12).

The court

reiterated

the

charges against Isom, seeking his confirmation that he understood

them and

that he was prepared to plead guilty to them.

finding that Isom's plea

well

as supported

by an

of guilty was knowing and

independent basis

accepted Isom's change of plea.

-10-

Finally,

voluntary as

in fact,

the court

In his motions

did

not

colloquy.

understand either

However, he

point of confusion.

error.

and on appeal,

the plea

Isom maintains that

agreement

fails to point to

or the

he

Rule 11

any specific error or

Our own examination of the record reveals no

See Ruiz-del Valle, 8 F.3d at 102 (examining

___ ______________

compliance with Rule 11).

sua sponte
__________

The court directly addressed the three

crucial aspects of the colloquy -- whether Isom had been coerced,

whether

he understood the charges, and whether he understood the

consequences of his plea.

he

was

coerced

colloquy.

Rather,

understanding:

circumstances

or did

he

Nothing in the

not

Isom's

understand

record indicates

the

statements are

corrected

the

agreement or

indicative

detailed

account

that

the

of

his

of

the

surrounding his arrest on three particular points,

ultimately

agreeing

that

he

had

in

fact

delivered

crack.

Further,

when the court asked him whether he and his counsel had

come

a ballpark

to

figure

of what

the

applicable sentencing

guidelines would be, he stated:

No

I haven't.

Have I

come to

any

agreement?
[DEFENSE COUNSEL]:

No.

Do you have a

ballpark figure as to -THE WITNESS:

Q

You

Five to forty.

think you're probably going to do

five years in this case, Mr. Isom?

A

No.

It was

five to forty, that's all

I understood what it was.

(Change of Plea

Isom clearly

plea.

Hearing, at

8).

This

colloquy indicates

understood the possible implications

Indeed,

defense

counsel testified

hearing that he had spent an hour

at

that

of his guilty

the

sentencing

and a half going over the plea

-11-

agreement with Isom, and that Isom had refused to take any copies

of the agreement or the pre-sentence report.

At oral argument,

fact

appellant's counsel argued that

that the colloquy consisted

defendant merely had to answer

was insufficient:

minimal,2 and so it

the

of leading questions, to which

"yes," indicates somehow that

court knew

the

Isom's

reading skills

should have had Isom describe

it

were

the agreement

in his own words.

Cf. Cotal-Crespo, 47 F.3d at 6

___ ____________

in which the charge

is explained and the method

the defendant's

to

case

capacity of

We

upon

the complexity

the defendant, and

there is no

as appellant's

evidence that

intelligent

Indeed, his responses

the

charges,

oral argument,

diminished.

The

formal education does not imply he

understand

a Rule

to the court addressed

11

colloquy.

detailed points of

the testimony, suggesting he was following the discussion in

courtroom.

the

The charges here are fairly

Isom's capacity is

enough to

vary from case

circumstances.").

counsel admitted at

fact that Isom has had little

is not

of

the attendant

find no merit in this position.

simple, and,

for determining

understanding of the charge will

depending

("The manner

In fact, Isom did not simply agree to

the

everything the

court asked him, as he now

in the colloquy

quoted above, he

ballpark figure of what

confirming

contends his attorney told him to do:

denied that he

had come to

the sentencing guidelines would require,

that with his counsel.

Quite simply, Isom has failed

____________________

Defendant testified at the

a ninth-grade education.

change of plea hearing that he had

At the sentencing hearing, however, the

court stated that Isom had a second-grade reading level.

-12-

to

meet

his

burden of

demonstrating

that

the

plea was

not

knowing, voluntary, and intelligent.

2.
2.

Force and Plausibility of Proffered Reason

Force and Plausibility of Proffered Reason
__________________________________________

Isom

withdrawal

must

demonstrate

of his guilty

plea.

plausible

"In

reason

for

the

this context, plausibility

must rest on more than the defendant's second thoughts about some

fact

or

point

decision."

The

of

law, or

about

Parrilla-Tirado, 22
_______________

reasons

Isom

offers

assistance of counsel,

the last reason

the

wisdom

of his

earlier

F.3d at 371 (citations omitted).

here

are

innocence,

ineffective

and failure to make a voluntary plea.

has already been discussed

As

and dismissed above,

we address only the first two here.

First,

Isom

claims his

innocence.

In his

written

motion,

evidence

the

he

alleges that

he

at trial, but does

record,

we find

that

could

not specify its

Isom's

innocence lacks merit, and thus

"fair and

produce wholly

nature.

does not rise to the level

of his claim.

States v. Ramos, 810 F.2d 308 (1st Cir. 1987), we

______
_____

did not assert

Examining

eleventh-hour profession

just reason" for withdrawal

defendant's claim

exculpatory

of innocence lacked

of

of a

In United
______

found that the

merit where, as

here, he

innocence at the change of plea hearing, but only

at the sentencing hearing, when he had already been convicted for

similar crime.

possess

Id.
___

at 313.

exculpatory information

Ramos,

like Isom,

sustaining

provided no insight into its substance.

claimed to

his innocence,

but

In these circumstances,

the court in Ramos held

_____

that "the trial court did not

abuse its

-13-

discretion

in

refusing

unsupported claim

to

give

of innocence

time after the Rule 11 hearing."

That finding is

weight

to

self-serving,

raised judicially for

the first

Id.
___

equally true here.

only failed to maintain his innocence

Indeed, Isom

not

at the Rule 11 hearing, he

clarified

specific

immediately

claim

of

points

afterwards that

innocence in

his

regarding

he

the

events,

delivered crack

oral

motion

agreeing

cocaine.

followed his

His

opening

statement that he "received [a bag] from my co-defendant to bring

it down there,

okay."

urges us

to read

need

withdraw

to

understanding

decline

the

(Sentencing Hearing, at

this "obvious

of

his

plea

the legal

invitation,

so

innocence lacks

("Courts

need

that

he

however,

Cf.
___

not

accept

we

gain

in

better

his case.

interpret

We

Isom's

Ramos court did that defendant's

_____

of innocence,

merit.

for

Appellant

highlighting his

may

issues involved

contradictory statements as the

inconsistent claims

confusion" as

3).

and find Isom's

Parrilla-Tirado,
_______________

assertion of

22 F.3d

defendant's

at

373

explanations

uncritically.").

Isom

asserts

second

ineffective assistance of counsel.

Strickland
__________

v.

Washington, 466
__________

evaluating

an ineffective

e.g., Ramos, 810 F.2d

____ _____

guilty

plea,

performance in advising

This

U.S.

assistance

at 314.

defendant

"fair

and

just"

court

668

reason:

applies

(1984), standard

of counsel

claim.

the

for

See,
___

Thus, to successfully challenge a

must show

that,

first,

guilty pleas fell below the

-14-

"counsel's

standard of

performance of

"by such

reasonable proficient counsel," and

inadequate performance, Appellant was

second, that

induced to enter

guilty pleas which he otherwise would not have entered."

Austin,
______

948 F.2d at 786; see Ramos, 810 F.2d at 314.

___ _____

Isom

holding

claim.

an

As

ineffective

contends that

the

evidentiary hearing

he

points out,

district court

on

this

his ineffective

court

has

not

assistance

refused to

hear

assistance claims for the first time on appeal where

there is no record on which to rely.

that

erred in

such claims

should

be brought

In such cases, we have held

in collateral

proceedings

pursuant to 28

U.S.C.

2255, where

a record may be

See, e.g., United States v. Carter, 815 F.2d

___ ____ ______________
______

1987)

(noting

evidentiary

that ineffective

matters that

are

assistance

developed.

827, 829 (1st Cir.

charges "depend

best considered

by the

on

district

court in the first instance."); Kobrosky, 711 F.2d at 457.

________

Fairness

to

the

economy

both

parties

and

warrant

that,

judicial
absent

extraordinary circumstances, an appellate

court

will

not consider

assistance

claim

an ineffective

where no

first made to determine

endeavor was

the claim at the

district level.

Austin, 948 F.2d

______

at 785

jurisdiction to hear the

(finding that the

appellate court

claim where it was confined

had

to matters

in the record).

Rather than

conclude that

a collateral

proceeding is

appropriate

should

in the

present case,

remand for a

however, Isom argues

full evidentiary hearing on

that we

his claim.

remind him that evidentiary hearings are not an entitlement:

-15-

[E]videntiary hearings on motions are the

exception,

not

the

repeatedly

stated

criminal

context,

entitled

as of

rule.

that,
a

even

defendant

right to

We

have

in

the

is

not

an evidentiary

We

hearing

on

motion.

pretrial

Thus,

or

party

evidentiary hearing must

posttrial
seeking

carry a

heavy burden of demonstrating a

an

fairly
need for

special treatment.

United States
______________

v.

McGill, 11
______

F.3d

(upholding district court refusal

225

(1st Cir.

1993)

to hold evidentiary hearing on

28

U.S.C.

v.

Garc a, 954 F.2d 12 (1st Cir. 1992) (upholding district court

______

refusal

2255 motion)

223,

to hold

(citations omitted); see United States

___ _____________

evidentiary

issue); United States

_____________

Cir. 1990)

(finding

discretion

in

hearing

on

v. Thompson, 906
________

that

denying

district

motion

to

sentencing

guideline

F.2d 1292, 1298-99

court

withdraw

did

not

plea

abuse

based

ineffective assistance without holding evidentiary hearing).

also note

that in

neither his oral

nor his written

(8th

its

on

We

motion did

Isom request

Tardiff,
_______

an

evidentiary

hearing.

969 F.2d 1283, 1286

failure to

ask

See
___

United States
______________

(1st Cir. 1992)

the district

court

v.

(noting that "the

to convene

an

evidentiary

hearing ordinarily spells defeat for a contention that one should

have been held" on sentencing guidelines issues).

Isom's

hearing fails.

request

Simply

that

we

remand

for

an

evidentiary

put, having considered the record

of the

hearings as well as the written motion, we find that the district

court's

decision not

to hold

an evidentiary

constitute an abuse

of its discretion.

314

current

(noting

that

counsel's

-16-

hearing does

See Ramos, 810

___ _____

"conclusory,

not

F.2d at

factually

unsupported assertion that [previous]

[was]

insufficient

for

us

counsel were negligent . .

to

require

an

evidentiary

hearing."); Kobrosky, 711 F.2d at 457 (dismissing charge where no

________

extrinsic

evidence was

ineffective

that it

offered to

assistance or

to

would be prejudiced).

ineffective

proceeding

assistance

under 28

of

U.S.C.

buttress the

counter the

Isom may,

counsel

2255,

allegations of

government's protest

of course,

claim

in

where

bring his

collateral

record

may

be

developed.

Isom makes the

alternative argument that he

enough information during

his oral

plea for

us to

presented

be able

to

determine that he should be able to withdraw his plea as a result

of ineffective assistance

First,

best:

the ineffective

Isom

morning,

of counsel.

This argument also fails.

assistance claim

claimed he did not see the

and that he did not have

was made

sketchily at

plea agreement until the

copies of any documents.

His

counsel, in turn, stated to the court that he had spent one and a

half hours

Isom had

going over

never asked

refused copies.

cannot

say that

the three-page

for copies

plea agreement,

of anything,

but had

and that

in fact

Isom does not contest these representations.

the

district court

abused

its discretion

We

in

denying the oral motion

when Isom's ineffective assistance claim

was only

where there was

briefly made,

testimony contradicting

his assertions, where he

had stated in his Rule 11 colloquy that

he

after a full discussion

signed the agreement

attorney, and where there

of it with his

was no evidence that Isom

had not, in

-17-

fact, understood

the Rule

11

colloquy.

Indeed, the

district

court specifically commended counsel for doing "an excellent job"

for

Isom,

winning

him

the

maximum

guideline

benefits

in

sentencing.

3.
3.

We

Timing of the Request

Timing of the Request
_____________________

have repeatedly

noted that

the more a

request is

delayed -- even if made before sentence is imposed -- the more we

will

regard it

Gonz lez-V zquez,

________________

Tirado,
______

defendant

potency

with

disfavor.

34

F.3d 19,

22 F.3d at 373.

waits before

his

motion

consideration."

Id.
___

See,
___

23

e.g., United States

____ ______________

(1st

Cir. 1994);

v.

Parrilla_________

"The rule of thumb is that the longer a

moving to

must

have

withdraw his

in

order

Thus, we have viewed

to

plea, the

gain

more

favorable

unfavorably motions

to withdraw a

id.,
___

plea made

the guilty

seven months later, United States v. Doyle,

______________
_____

595 (1st Cir. 1992),

621

six months following

810 F.2d at 313.

request

falls

Crosby, 714
______

Clearly, Isom's two-month delay in

well within

F.2d 185,

this range.

192 (1st

motion was made

eight weeks following

the circumstances

making his

See United States v.

___ ______________

Cir. 1983)

to grant motion

lassitude serves

v. Keefe,
_____

1980), or thirteen days later, Ramos,

_____

court's refusal

totality of

981 F.2d 591,

three weeks later, United States

_____________

F.2d 17, 18 (1st Cir.

plea,

(upholding district

to withdraw where,

sentencing).

inter alia,
__________

"Given

the

that pertain

here, [A]ppellant's

to cast considerable doubt

upon the legitimacy

of his professed reason for seeking to change course."

Gonz lez_________

V zquez, 34 F.3d at 23.

_______

-18-

Isom argues on appeal that the district court erred

stating

that the

oral motion

points out, Fed. R. Crim. P.

was not

timely.

as he

32(e) allows a plea to be withdrawn

any time prior to

sentencing if defendant shows a

reason.

making a motion to withdraw a

However,

Indeed,

in

fair and just

plea two months

following

certainly

not the

192.

Rule

11 hearing

spirit" of Rule

Isom also emphasizes

sentencing.

"complies

with

32(e).

that he

the

letter, but

Crosby,
______

714 F.2d at

made both motions

This, however, is not a factor courts assessing the

timing of a change of motion plea have given great

significant

prior to

has been the fact

that a withdrawal

weight:

more

of plea motion

comes after a presentence report sets out the

possible sentence.

See,
___

373

e.g.,
____

Parrilla-Tirado,
_______________

22

F.3d

at

defendant's "belated change of heart followed not

(noting

that

long after the

PSI Report"); Doyle, 981 F.2d at 595 (commenting that motion came
_____

shortly after discovery that

court was contemplating long prison

sentence).

Appellant's

next argument,

namely, that

given Isom's

difficulties

raised

his

with the written word, it was logical that he first

motion

to

withdraw

appearance following the change

orally

at

his

first

court

of plea hearing, is inconsistent

with his position that the written motion was actually made prior

to

sentencing.

Indeed, Isom

referred to the

written motion in

his oral motion.

4.
4.

Assertion of Innocence
Assertion of Innocence
______________________

An assertion

of innocence weighs the

-19-

balance in favor

of

withdrawal; the

Parrilla-Tirado,
_______________

failure to

22

F.3d

do

at

so does

373.

the opposite.

Nonetheless,

"the

See
___

mere

protestation of legal innocence cannot in and of itself be issue-

determinative,

for '[t]here are few

the

cannot

defendant

believed by a jury,

devise

if any criminal cases where

some theory

or

story

would result in his acquittal.'"

which, if

Kobrosky,
________

711 F.2d at 455 (quoting N ez-Cordero v. United States, 533 F.2d

_____________
_____________

723, 726

(1st

contentions

Cir.

create

1976)).

no

'legally

Thus,

"if

defendant's

cognizable

defense'

factual

to

the

charges, 'he has not effectively denied his culpability,' and the

motion can be

denied."

Ramos, 810
_____

F.2d at 312 (quoting

United
______

States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) (en banc),
______
______
_______

denied,
______

421 U.S. 1013 (1975)).

cert.
_____

Isom's assertion of innocence is

addressed above.

5.
5.

Other Factors
Other Factors
_____________

Finally, we note

that Isom

did, indeed,

have a

plea

agreement with the government, which was not breached.

"Since all

the

critical integers

in

the

calculus counsel affirmance, we need not embark upon an

of possible prejudice to the government."

n.6.

CONCLUSION

decisional

analysis

Doyle, 981 F.2d at 596

_____

CONCLUSION

For the

reasons discussed above, the

district court's

refusal to grant Isom's motion to withdraw his plea is affirmed.

affirmed.
________

-20-