U.S. v. Farley, s. 92-3127

• Decision Date: 22 December 1995
• Docket Number: 94-3174,Nos. 92-3127,s. 92-3127
• Parties: UNITED STATES of America, Appellee, v. Edward Tyrone FARLEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 158

72 F.3d 158

315 U.S.App.D.C. 240

UNITED STATES of America, Appellee, v. Edward Tyrone FARLEY, Appellant.

Nos. 92-3127, 94-3174.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 24, 1995.

Decided Dec. 22, 1995.

On Appeal from the United States District Court for the District of Columbia (No. 91cr00488-05).

Jonathan S. Zucker, Washington, DC, appointed by the court, argued the cause for the appellant.

S. Hollis Fleischer, Assistant United States Attorney, Washington, DC, argued the cause for the appellee. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Elizabeth Trosman and Margaret A. Flaherty, Assistant United States Attorneys, Washington, DC, were on the brief.

Before: BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Edward Farley and two of his codefendants entered "wired" guilty pleas whereby none of them received the benefit of the government's plea offer unless all three of them agreed to plead guilty. Before sentencing and again after sentencing Farley moved to withdraw his plea. The district court denied the motions. It also denied Farley's 28 U.S.C. Sec. 2255 motion, which alleged ineffective assistance of counsel in connection with his guilty plea and his attempt to withdraw it. We affirm.

I. Background

In November 1991 Farley and five others were named in a thirteen-count superseding indictment charging conspiracy to distribute cocaine base (crack) and multiple counts of distribution of crack and distribution of crack within 1,000 feet of a school. A jury trial for Farley and two codefendants, Mark Love and Ricardo Love, was scheduled to begin on February 20, 1992. ¹ At a pretrial motions hearing that morning, Farley's lawyer addressed the district court:

[B]efore we start any motions, the government has made a wired offer this morning, which no one has discussed with their clients. It was just made this morning, and it certainly, I think, would behoove us to explore it. I'm going to make a request that ... the Court would break until possibly ... immediately after lunch, and allow counsel and all three clients [Farley, Mark Love and Ricardo Love] ... to discuss this since it is--they're all contingent upon one another.

Supplemental Appendix (S.A.) Sec. A, 7 (emphasis added). The court recessed and the government offered Farley and the Loves a wired plea arrangement. All three agreed to plead guilty. Farley agreed to plead guilty to distribution of fewer than five grams of crack in violation of 21 U.S.C. Sec. 841(b)(1)(C).

The court reconvened that afternoon and was informed that Farley and the Loves had agreed to plead guilty. The court then conducted a hearing pursuant to Fed.R.Crim.P. 11. The government proffered the evidence it had against Farley: On June 19, 1991 a confidential informant met with Farley and one of Farley's codefendants, Tammy Brown, and Farley sold the informant 2.3 grams of crack for $300; Brown apparently had arranged the deal. Farley agreed with the summary and admitted his guilt. The court accepted Farley's guilty plea and the Loves' pleas as well. No one brought up at the rule 11 hearing the fact that the pleas were wired.

Over two months later and before sentencing, Farley told his lawyer he wanted to withdraw his plea. His lawyer filed a Fed.R.Crim.P. 32(d) motion seeking to withdraw his guilty plea because, according to Farley, he was innocent and the government would suffer no prejudice if the plea were withdrawn. ² According to Farley, he pleaded guilty because he feared his codefendants would testify against him. On May 6, 1992, the date scheduled for sentencing, the court held a hearing on Farley's rule 32(d) motion. Farley's lawyer explained to the court that Farley did not allege a defect in the rule 11 proceeding but instead based his motion solely on his belated assertion of innocence. The court concluded that Farley simply had a change of heart, denied his rule 32(d) motion and sentenced him to 63 months' imprisonment. Farley filed a timely notice of appeal. In September 1992 we ordered Farley's appeal held in abeyance pending the disposition of the 28 U.S.C. Sec. 2255 challenge Farley anticipated filing. Nine months later, in June 1993, Farley finally filed a section 2255 motion raising ineffective assistance of counsel claims arising from his guilty plea.

In November 1993 Farley filed a pleading styled in part a "supplement" to his pending section 2255 motion and in part a "motion to reconsider" his rule 32(d) motion, which had been denied eighteen months earlier. In the motion for reconsideration Farley for the first time claimed defects in the rule 11 proceeding. He argued that rule 11(e) (requiring disclosure of plea agreement) was violated because the parties never told the court at the rule 11 hearing that the pleas were wired. He also argued that rule 11(d) (requiring court to determine voluntariness of plea) was violated insofar as the court did not make a specific inquiry regarding whether his plea was knowing and voluntary in light of its wired nature.

On November 8, 1994 the district court denied Farley's motion for reconsideration and his ineffective assistance claims. Farley timely appealed and we consolidated the section 2255 appeal with his May 1992 appeal, originally held in abeyance. Farley raises two issues. First, he contends he should be permitted to withdraw his plea because of the alleged defects in the rule 11 proceeding. Second, he contends his plea should be set aside because his lawyer rendered ineffective assistance.

II. Plea Withdrawal Based on Alleged Defects in the Rule

11 Proceeding

Farley argues that the district court abused its discretion in not allowing him to withdraw his plea because the court had not been advised that the pleas were wired and thus did not sufficiently examine whether Farley's plea was knowingly and voluntarily made.

A.

We first determine the appropriate standard of review. Rule 32(d) distinguishes between pre- and post-sentencing attempts to withdraw guilty pleas. The rule first provides that a district court may grant a pre-sentence motion to withdraw "upon a showing by the defendant of any fair and just reason" and we review for abuse of discretion the denial of the motion. United States v. Ford, 993 F.2d 249, 251 (D.C.Cir.1993). After sentencing, however, a plea "may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255," Fed.R.Crim.P. 32(d), and the defendant must meet a more stringent standard than the "obviously more lenient 'fair and just' standard." United States v. Watley, 987 F.2d 841, 848 (D.C.Cir.1993). On direct appeal the defendant must show that withdrawal of his plea is necessary to correct a "manifest injustice." Id. at 847-48. To prevail under section 2255 the defendant must show that the plea proceeding was tainted by "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

We disagree with Farley that his rule 11 defect claim should be reviewed for abuse of discretion under the "fair and just" standard because the claim was not raised before sentencing. Although Farley filed a rule 32(d) motion before sentencing, the motion was based entirely on his claim of innocence and the lack of prejudice to the government should his plea be withdrawn. The district court denied the motion on May 6, 1992--after Farley's lawyer expressly represented at the rule 32(d) hearing that Farley did not allege any defect in the rule 11 proceeding--and sentenced Farley that day. Eighteen months later Farley filed a "motion to reconsider" the denial of his rule 32(d) motion. It was in his post-sentencing motion that Farley first argued he should be allowed to withdraw his plea based on the defective rule 11 proceeding. Although the district court ruled on the merits of the new claim, it lacked jurisdiction to do so because Farley's motion for reconsideration, filed eighteen months after entry of judgment, was untimely. See United States v. Cook, 670 F.2d 46, 48 (5th Cir.) (to be timely, motion for reconsideration must be filed within period allotted for noticing of appeal, i.e., ten days after entry of judgment in criminal case), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982); United States v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989) (same); United States v. Russo, 760 F.2d 1229, 1230 (11th Cir.1985) (same). Moreover, the district court lacked jurisdiction to entertain Farley's motion qua rule 32(d) motion because the rule expressly provides that after sentencing a plea may be set aside only on direct appeal or via a section 2255 motion. See United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.) (per curiam) (district court lacked jurisdiction to entertain under rule 32(d) post-sentencing motion to withdraw plea), cert. denied, --- U.S. ----, 113 S.Ct. 2424, 124 L.Ed.2d 645 (1993); United States v. Baker, 790 F.2d 1437, 1438 (9th Cir.1986) (same). ³ Accordingly we will not review the merits of Farley's appeal from the denial of his "motion to reconsider." Id.

Instead we consider Farley's rule 11 defect claim on direct appeal. See id. We do so for this reason: Had we not held his May 1992 appeal in abeyance, Farley would have been able to then raise his rule 11 defect claim. His consolidated appeal represents, in part, his first opportunity to argue before us that the rule 11 proceeding was deficient. Cf. United States v. Liboro, 10 F.3d 861, 864 (D.C.Cir.1993). Because we review Farley's rule 11 claim on direct appeal, we must determine whether Farley satisfies the "manifest injustice" standard. ⁴ For the following reasons we conclude he does not.

B.

The relevant rules here are rules 11(d)...