The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Now before the Court is Harvey Jackson's pro se motion to withdraw guilty plea (Doc. 26). The Government opposes the motion, though there is some suggestion that the timing of the plea inured to the Defendant's benefit and, if the motion were granted, further investigation would continue, perhaps, resulting in an indictment that would expose the Defendant to a worse fate than if the motion were denied. On July 13, 2007, the Court held a hearing on Jackson's motion and took the matter under advisement. Based on the evidence presented during the hearing, the pleadings and the applicable case law, the Court denies Jackson's motion to withdraw guilty plea.
On November 17, 2006, a three-count Information charged Harvey Jackson with operation of an unregistered drug facility, possessing with the intent to distribute 31 grams or more of cocaine and possessing a firearm in furtherance of a drug trafficking crime, violations of 21 U.S.C. § § 331(p), 333(a)(2), 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § § 2, 924(c) (Doc. 2). That same day, Jackson executed a written waiver of his right to prosecution by Indictment (Doc. 1). The waiver form states that Jackson, "being advised of the nature of charges, the proposed Information, and [his] rights" consents to prosecution "by Information rather than by Indictment" (Doc. 1). Also, that same day, Jackson, represented by attorney Ethan Skaggs, pled guilty to the Information. Jackson executed a six page plea agreement and a five page stipulation of facts, both of which were presented to the Court (Docs. 4 & 5). The stipulation of facts outlined Jackson's conduct related to the charges contained in the Information.
In the plea agreement, Jackson acknowledged that he had been advised and fully understood the rights he was waiving and the consequences he was facing by entering a guilty plea, including the fact that he was admitting guilt on a felony punishable by a term of imprisonment, and the fact that his sentencing range likely was ten to sixteen months and a five year mandatory minimum sentence for the gun charge.
Thereafter on December 5, 2006, attorneys N. Scott Rosenblum and Adam Fein entered their appearances on behalf of Jackson (Docs. 6 & 7). Later that month, Mr. Skaggs filed a motion to withdraw as attorney for Jackson (Doc. 10). The Court granted Mr. Skaggs's motion on December 22, 2006 (Doc. 10). On February 7, 2007, the Court continued the sentencing to June 8, 2007 and allowed Jackson leave to file objections to the Presentence Report (Doc. 18). Thereafter, the Court continued the sentencing to July 13, 2007. On March 1, 2007, Jackson, through Mr. Rosenblum, filed objections to the Presentence Report (Doc. 19).
On March 7, 2007 and April 25, 2007, the entered Orders acknowledging that it received letters from Jackson (Docs. 20 & 21). Because Jackson was represented by counsel at the time the Court received the letters, the Orders insisted that Jackson only file pleadings through his attorney. Subsequently on May 29, 2007, Jackson, pro se, filed a motion for removal of attorney (Doc. 22). On June 8, 2007, the Court conducted a thorough Farettainquiry, granted Jackson's motion for removal of Mr. Rosenblum and Mr. Fein, and allowed Jackson to proceed pro se.*fn1 Further, the Court instructed the Clerk's Office to file the motion to withdraw guilty plea and set the matter for hearing on July 13, 2007 (Doc. 25).*fn2
On July 13, 2007, the Court held a hearing on Jackson's motion to withdraw guilty plea. At the hearing, Jackson was represented by counsel Rick Black and the Government was represented by Assistant United States Attorney Jennifer Hudson.*fn3 The parties having fully briefed the issues, presented testimony and presented oral argument, the Court now rules as follows.*fn4
"The right to withdraw a guilty plea is not absolute." United States v. Rinaldi, 461 F.3d 922, 926 (7th Cir. 2006)(citing United States v. Bradley, 381 F.3d 641, 645 (7th Cir. 2004)). A defendant is entitled to withdraw his plea if he can demonstrate a "fair and just reason" to do so. Fed. R. Crim. P. 11(d)(2)(B). "This is no mean feat. Guilty pleas are not to be treated as a strategic maneuver by the parties, and we presume the verity of the defendant's statements made at the Rule 11 colloquy." Rinaldi, 461 F.3d at 927-28 (citations omitted). "Ineffective assistance of counsel can render a plea agreement involuntary, and is therefore a valid basis for withdrawing a guilty plea." United States v. Lundy, 484 F.3d 480, 484 (7th Cir. 2007)(citing Hill v. Lockhart, 474 U.S. 52, 57 (1985); United States v. Wallace, 276 F.3d 360, 366 (7th Cir. 2002)).
To establish ineffective assistance of counsel, "[i]n the plea bargain context a defendant must establish that his counsel's performance was objectively unreasonable and that but for counsel's errors, he would not have pleaded guilty and instead gone to trial." United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999)(citing Hill, 474 U.S. at 56-60)). To satisfy the performance prong, the defendant must point the court to specific acts or omissions which shape his claim. United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). "[E]ven if individual acts or omissions are not so grievous as to merit a finding of incompetence or of prejudice from incompetence, their cumulative effect may be substantial enough to meet the Strickland test." Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir. 1984). Once a court has set out counsel's errors, "the court must then determine whether, in light of all the circumstances, the alleged acts or omissions were outside the wide range of professionally competent assistance." Id. The court must keep in mind the strong presumption that counsel's performance was reasonable while making this determination. Id. To show prejudice, a defendant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. Mindful of these principles, the Court turns to address the merits of Jackson's motion.
Jackson advances two reasons for withdrawing his guilty plea both contending that Mr. Skaggs provided him with ineffective assistance of counsel. First, Jackson contends that Mr. Skaggs failed to file a motion to suppress in regards to the "knock and talk" conducted by the DEA agents. Second, Jackson contends that Mr. Skaggs did not properly inform him of the nature of the charges against him and advise him of all his rights prior to him pleading guilty.*fn5 Jackson maintains that had Mr. Skaggs properly advised him of his rights before he plead guilty that he would not have pled guilty and proceeded to trial. Here, Jackson has no credible evidence, only his unsupported allegations, which are inadequate. In addition to presenting no credible evidence to support his allegations, the record contradicts him. The Rule 11 colloquy demonstrates that he did discuss these matters with counsel (TR, ps. 7-11):
Court: All right. I notice that today there was filed something called an agreement to plead guilty. This is also a so-called open plea, meaning that there is nothing in here, as I see it, that constitutes a per se recommendation by the government, so it's just a written plea in effect in this case. In the course of Mr. Skaggs's representation of you, has he met and talked with you a number of times about this case, Mr. Jackson?
Court: And he's talked with you about the law that surrounds the charges that have been brought against you; is that a true statement?
Court: Talked with you about the sentencing laws that affect the charges that have been brought against ...