THIS MATTER is before the Court on "Defendant's Motion to Withdraw Guilty Plea and Supporting Memorandum" (document #25) filed January 25, 2011 and "Government's Opposition to Defendant's Motion to Withdraw Guilty Plea" (document #28) filed February 4, 2011. Defendant also filed a handwritten pro se "Motion to Withdraw Plea Pursuant to Rule 11(d)(2)(B)" (document # 29) filed February 18, 2011. United States District Judge Frank D. Whitney referred this matter to the undersigned.
Having fully considered the arguments, the record, and the applicable authority, the Court finds that there is no basis for withdrawal of Defendant's guilty plea, as discussed below, and will DENY Defendant's Motion to Withdraw Guilty Plea.
I. PROCEDURAL AND FACTUAL BACKGROUND
On September 6, 2009, at approximately 5:00 a.m., a Charlotte-Mecklenburg police officer initiated a police-citizen encounter with Defendant, who was visibly intoxicated and walking along West Trade Street. When the officer approached, Defendant backed away. The officer observed noticeable bulges in Defendant's sock and pocket, and asked him to stop. Defendant took off running. The officer finally caught up with Defendant a few blocks away and attempted to restrain him. Defendant began to resist violently. As the officer struggled to maintain his grip on Defendant's left arm, he observed Defendant reach into his pocket and grab a Smith & Wesson 9 mm handgun. The officer was able to subdue Defendant and take control of the loaded gun.
Based on these events, a grand jury indicted Defendant on December 15, 2009 for unlawful possession of a firearm by felon, in violation of 18 U.S.C. § 922(g). On December 21, 2009, law enforcement officers went to Defendant's place of employment and arrested him. Later that day, Defendant's employer contacted the officers to notify them that a bag containing a firearm had been found in the van that Defendant had been in just prior to being arrested. Officers responded to the scene and located a loaded Taurus .357 magnum revolver in the bag. Further analysis revealed Defendant's fingerprints were on the revolver.
Defendant's Bill of Indictment was superseded on February 16, 2010 to add a second count charging him with unlawful possession of a firearm by felon, in violation of 18 U.S.C. § 922(g). On March 3, 2010, an Inquiry into Status of Counsel was held by Judge Whitney. Defendant presented a motion to have his counsel removed. After thoroughly addressing the issue and offering to appoint Defendant a new attorney, Defendant elected to keep his assigned counsel.
On March 12, 2010, Defendant, his counsel, and the Government entered into a written plea agreement. On March 18, 2010, Defendant appeared before this Court and entered a guilty plea to one count of unlawful possession of a firearm by felon. In exchange for his plea, the Government agreed to dismiss the remaining count. Defendant also reserved his right to appeal Judge Whitney's ruling on his suppression motion. During this hearing, the Court conducted the standard colloquy, as required by Federal Rule of Criminal Procedure 11, to determine if Defendant was knowingly and voluntarily entering his guilty plea. Defendant gave sworn answers, and then signed the form entitled "Entry and Acceptance of Guilty Plea" which attested that Defendant's answers had been true and complete. (document #18). Defendant stated that he understood that he was there to enter a guilty plea that could not later be withdrawn. Id. at 2. Defendant stated that he fully understood the charges against him. Id. Defendant further stated that he was, in fact, guilty of unlawfully possessing a firearm as a felon. Id. at 3. When asked, Defendant expressed that he had enough time to discuss possible defenses with his attorney and that he was satisfied with the services of his attorney. Id. at 4. Following this, this Court found that Defendant's plea had been knowingly and voluntarily made, and accepted his guilty plea.. Id. at5.
On June 8, 2010, Defendant's attorneys, Claire Rauscher and Erin Taylor, were allowed to withdraw by Judge Whitney. On June 9, 2008, Richard L. Brown, Jr. was appointed to represent Defendant. On January 25, 2011, through counsel, Defendant filed his Motion to Withdraw Guilty Plea.
Defendant contends that he entered into his guilty plea without viewing all of the evidence against him. In addition, Defendant contends that he is actually innocent of the charge in the indictment.
Rule 11(d) of the Federal Rules of Criminal Procedure places the burden on Defendant to show a "fair and just reason for requesting the withdrawal." Fed. R. Crim. Pro. 11(d). In determining whether a defendant has met this burden, the Fourth Circuit has set forth six non-exclusive factors for district courts to consider:
(1) the existence of credible evidence that the plea was not knowing and voluntary;
(2) credible assertions by the defendant of his legal innocence;
(3) any delay between the entry of the plea and the ...