U.S. v. Bellamy, 98-1013
| Decision Date | 06 November 1998 |
| Docket Number | No. 98-1013,98-1013 |
| Citation | 165 F.3d 33 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Courtney Kenneth BELLAMY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-CR-133. Rudolph T. Randa, Judge.
Before Hon. THOMAS E. FAIRCHILD, Hon. WILLIAM J. BAUER, Hon. TERENCE T. EVANS, Circuit Judges.
Courtney Bellamy pleaded not guilty to three counts of possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and the case proceeded to trial. At the close of the government's case, Bellamy entered pleas of guilty, which the district court accepted. Shortly thereafter, Bellamy filed a motion to withdraw his guilty pleas, which the district court denied. The court then sentenced Bellamy to 235 months' imprisonment on each of the counts, to run concurrently. Bellamy's fourth attorney, Thomas Hayes, filed a notice of appeal on Bellamy's behalf but now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he considers an appeal to be without merit or possibility of success. Bellamy was notified of the opportunity to file a response to the Anders motion pursuant to Circuit Rule 51(a), which he has done. We grant counsel's motion to withdraw and dismiss the appeal.
On May 13, 1996, Bellamy surrendered to authorities after learning that law enforcement officials were looking for him in connection with the sale of over one kilogram of crack cocaine to Margaret Turner, a confidential government informant. Bellamy was represented at that time by Ronald Hendree, who tried to negotiate a deal with the government that would provide for a reduction of his client's sentencing exposure. The government informed Hendree that if Bellamy returned the $26,500 in "buy" money that Turner had paid Bellamy for the crack cocaine, it would recommend a sentence reduction of one to two years. Through Hendree, Bellamy returned approximately $17,000, but Hendree reported that the remaining money was stolen out of his car. Thereafter, plea negotiations crumbled and Hendree withdrew as counsel of record.
Stan Nelson replaced Hendree as Bellamy's lawyer. The case proceeded to trial, during which Turner testified that Bellamy sold her a kilogram of crack cocaine for $26,500. The government also presented tape-recorded conversations reflecting Bellamy's involvement in negotiating the three drug deals charged in the indictment. After the government rested, the defense sought an adjournment because its primary witness, Rhasaan Clemont, had not yet arrived at the courthouse. The court granted an adjournment until later in the afternoon but then refused to further delay the trial. At that point, Bellamy's counsel asked the government what it would offer in return for a guilty plea. Because it already had rested its case, the government refused to offer any sentencing concessions. Bellamy nonetheless entered guilty pleas, which the court accepted after conducting a Rule 11 colloquy.
Three weeks later, Bellamy filed a pro se motion to withdraw his guilty pleas and a motion for appointment of new counsel. The district court granted the motion for appointment of new counsel, and Bellamy's new lawyer, James Rebholz, filed a brief in support of the motion to withdraw. Rebholz argued that Bellamy was emotionally distraught when he pleaded guilty because attorney Nelson had failed to present the critical testimony of witness Clemont; was coerced by Nelson and family members "to save himself by pleading guilty"; and was innocent of the crimes charged because Clemont sold the cocaine. 2 The district court denied the motion to withdraw the guilty pleas on the ground that Bellamy failed to demonstrate a "fair and just reason" for withdrawal.
Prior to sentencing, Rebholz moved to withdraw as counsel based on a potential conflict of interest arising from a disciplinary proceeding pending against Hendree. The court granted the motion to withdraw and appointed Thomas Hayes in Rebholz's stead. Hayes filed an appeal on Bellamy's behalf after sentencing but now seeks to withdraw as counsel of record. In his Anders brief, counsel identifies two possible grounds for appeal.
First, counsel questions whether Bellamy could argue that the district court erred in denying his motion to withdraw the guilty pleas and in refusing to hold an evidentiary hearing on this matter. This court reviews the district court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion, United States v.. Standiford, 148 F.3d 864, 868 (7 th Cir.1998), and its findings of fact for clear error. United States v. LeDonne, 21 F.3d 1418, 1423 (7 th Cir.1994). The decision whether to permit withdrawal of a guilty plea is made within the framework of Federal Rules of Criminal Procedure 11 and 32. Pursuant to Rule 32(e), a district court may permit a defendant to withdraw a guilty plea before sentencing if the defendant shows a "fair and just reason." Standiford, 148 F.3d at 868. The existence of a "fair and just reason" may depend on what was said at the Rule 11 hearing--a mandatory hearing conducted to inform the defendant of the elements of the charge to which he is pleading guilty and to gain assurance that the defendant understands the charges levied against him. LeDonne, 21 F.3d at 1423. The record created at the hearing is entitled to a "presumption of verity," and a defendant who seeks to undo his plea faces a heavy burden of persuasion. Standiford, 148 F.3d at 868-69.
In this case, the district court conducted a proper Rule 11 inquiry and ascertained that Bellamy's pleas were given knowingly and voluntarily. Indeed, in response to the district court's questions, Bellamy assured the court that he was not impaired by drugs, alcohol, or any psychological condition affecting his ability to think rationally; that he understood the nature of the charges against him; that he understood the rights he was waiving by pleading guilty; that no one had made any threats or promises to induce him to plead guilty; that he understood he faced a minimum mandatory sentence of ten years' imprisonment; and that he had discussed the decision to plead guilty with his lawyer. The district court's finding that Bellamy's statements were credible and given of his own free will was not clearly erroneous. Nor did the district court err in failing to credit Bellamy's other allegedly "fair and just reasons" for withdrawal: his claim of actual innocence and his assertion that his attorney rendered ineffective assistance of counsel. Tape recorded conversations between Turner and Bellamy, as well as Turner's trial testimony, established that, at a minimum, Bellamy aided and abetted the sale of over a kilogram of crack cocaine. Thus, even in the unlikely event that Clemont had confessed at trial that he was the owner and distributor of the crack cocaine, this testimony would not have shown...
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