UNITED STATES of America, Plaintiff-Appellee, v. Michael Allen COATES, Defendant-Appellant.
No. 11-8019.
United States Court of Appeals, Tenth Circuit.
June 5, 2012.
JEROME A. HOLMES, Circuit Judge.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Finally, Mr. Robertson‘s appeal raises the same issues we have repeatedly considered and rejected, making his appeal frivolous. In the future, we will not expend further judicial resources considering matters which have either previously been adjudicated or otherwise deemed meritless. We caution Mr. Robertson future frivolous appeals on these or any other matters may result in summary disposition without discussion and/or an order requiring him to show cause why this court should not impose both appellate filing restrictions and sanctions.4 We further caution that the fact he is a pro se litigant does not prohibit the court from imposing such sanctions on him. See Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir. 2003).
III. Conclusion
For these reasons, no meritorious appellate issue exists for our review on direct appeal. Accordingly, we GRANT counsel‘s motion to withdraw and DISMISS Mr. Robertson‘s appeal.
Michael Allen Coates, Bruceton Mills, WV, pro se.
Matthew McGavock Robinson, Esq., Robinson & Brandt, PSC, Covington, KY, for Defendant-Appellant.
ORDER AND JUDGMENT*
JEROME A. HOLMES, Circuit Judge.
Defendant-Appellant Michael Allen Coates pleaded guilty in the United States District Court for the District of Wyoming to conspiracy to distribute, and to possess with intent to distribute methamphetamine, in violation of
I. INTRODUCTION
We are addressing Mr. Coates‘s appeal under the analytical framework of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).1 Initially, Mr. Coates filed a pro se notice of appeal alleging “insufficient” counsel, stating that he was “misl[ed] about the legal process[],” and that he had “directed [trial counsel] to make [a] motion [to withdraw his plea on] the same day as [the date of his guilty plea].” R., Vol. 1, at 412 (Pro Se Notice of Appeal, filed Apr. 1, 2011). He claims that his counsel used “scare tactics” to cause him to provide the assistance to the government that precipitated his plea agreement, and that he was coerced “by [his] counsel to tell the United States what they wanted to hear even if [he] was lying.” Id.
Mr. Coates‘s “main objection to the sentence is the time that has been imposed.” Id. at 411 (Pro Se Ltr. to Dist. Ct., filed Apr. 5, 2011). He claims that his trial counsel “misl[ed] [him] about the plea arrangement in terms of [the length of the sentence],” and that he was coerced by his trial counsel to sign the plea agreement “even though he was expressing [confusion] and concern.” Id.
On appeal, Mr. Coates‘s then-counsel filed an Anders brief, noting that “[a]fter a thorough review of the [record], and considering the attorney-client correspondence with Mr. Coates,” counsel has determined that there are no non-frivolous appellate issues. Aplt. Anders Br. at 1; see 10th Cir. R. 46.4(B)(1). In the Anders brief, counsel identifies two potential issues on appeal: whether the district court
Mr. Coates filed a response to the Anders brief in which he states that he “did maintain [his] presumption of innocence through out [sic] the [district court proceedings‘] entirety,” and reiterates his claim that he requested that his counsel “withdraw [his] plea of guilty the ... day [he pleaded guilty].” Resp. to Anders Br. at 1. The government declined to file a brief.
Subsequently, representing that he had been retained by Mr. Coates‘s family, a new attorney moved this court to be substituted for Mr. Coates‘s current counsel and for an order striking the previously filed Anders brief and for a new briefing schedule. We granted the motion to substitute, thus effectively terminating the representation of Mr. Coates‘s initial appellate counsel and rendering his motion to withdraw moot. However, we denied the motion to strike the Anders brief and for a new briefing schedule.
We have carefully considered the substance of the Anders brief and also Mr. Coates‘s response to it. Beyond that, we have thoroughly and independently reviewed the record. See Anders, 386 U.S. at 744, 87 S.Ct. 1396. Following this assessment, we conclude that Mr. Coates raises no non-frivolous issues on appeal. Therefore, exercising jurisdiction under
II. FACTUAL BACKGROUND
Facing a seven-count indictment charging conspiracy, possession with intent to distribute, and distribution of methamphetamine, and three counts of carrying a firearm during and in relation to a drug-trafficking crime, Mr. Coates pleaded guilty to two of the seven counts. Specifically, Mr. Coates pleaded guilty to Count One—Conspiracy to Possess with Intent to Distribute, and to Distribute Methamphetamine—and to Count Five—Carrying a Firearm During and in Relation to a Drug Trafficking Crime. As part of the plea agreement, the parties agreed under
Mr. Coates signed the plea agreement on the eve of trial, and it was filed on December 6, 2010, the day his trial had been scheduled to begin. On February 16, 2011, Mr. Coates filed a pro se motion—in the form of a letter to the district court—asking to withdraw his guilty plea.2 On
III. DISCUSSION
On appeal, Mr. Coates contends that the district court erred in denying the motions to withdraw his guilty plea, that his sentence is substantively unreasonable, and that the proceedings before the district court were unjust for other reasons, which we discuss below.
A. Motions to Withdraw Guilty Plea
“We review the district court‘s denial of a motion to withdraw a guilty plea for an abuse of discretion.” United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005) (en banc) (quoting United States v. Jones, 168 F.3d 1217, 1219 (10th Cir. 1999)) (internal quotation marks omitted). “Although a motion to withdraw a plea prior to sentencing should be freely allowed, we will not reverse a district court‘s decision unless the defendant can show that the court acted unjustly or unfairly.” United States v. Garcia, 577 F.3d 1271, 1274 (10th Cir. 2009) (quoting United States v. Hamilton, 510 F.3d 1209, 1213-14 (10th Cir. 2007)) (internal quotation marks omitted).
Under
- whether the defendant has asserted his innocence;
- whether withdrawal would prejudice the government;
- whether the defendant delayed in filing his motion, and if so, the reason for the delay;
- whether withdrawal would substantially inconvenience the court;
- whether close assistance of counsel was available to the defendant;
- whether the plea was knowing and voluntary; and
- whether the withdrawal would waste judicial resources.
Yazzie, 407 F.3d at 1142 (quoting United States v. Sandoval, 390 F.3d 1294, 1298 (10th Cir. 2004)) (internal quotation marks omitted); accord Hamilton, 510 F.3d at 1214. Mr. Coates‘s arguments principally relate to two of these factors—namely, Yazzie‘s factor one (assertion of innocence) and factor six (knowing and voluntary nature of the plea). Based on our assessment of the Yazzie factors, the district court did not act unjustly or unfairly in denying Mr. Coates‘s motion to withdraw his guilty plea.
1. Assertion of Innocence
Although we do not have Mr. Coates‘s February 16, 2011, pro se letter to the district court, according to the court, Mr. Coates did not assert his innocence when asking to withdraw his guilty plea. Certainly in his second motion (filed by counsel), Mr. Coates does not assert that he is actually innocent, but rather states only that he has “repeatedly asserted his innocense [sic] to the eve of Jury Trial.” R., Vol. 1, at 396 (Second Mot. to Withdraw Guilty Plea, filed Mar. 4, 2011). However, Mr. Coates avers on appeal that he “maintain[ed] [his] presumption of innocence through out [sic] the [district court proceedings‘] entirety,” Resp. to Anders Br. at 1, that he “constantly expressed [his] belief of innocence” to his trial counsel, id. at 2, and that he “still believe[s] [he is] innocent of [the charges to which he pleaded guilty],” id.
Mr. Coates admitted guilt at his change of plea hearing. He volunteered specific facts regarding his involvement in the crimes, including the role he played in the conspiracy. He admitted to having knowingly carried a firearm in connection with that conspiracy, specified the type of guns that he had carried, and informed the court that he had carried the guns for protection. “Even on appeal he does not disclaim his admissions of guilt [made] at the plea colloquy.” Byrum, 567 F.3d at 1264. In fact, to date Mr. Coates has provided no evidence of his innocence.3 Accordingly, any claim Mr. Coates makes on appeal based on actual innocence fails.
2. Knowing and Voluntary Plea
We review de novo whether a guilty plea was knowing and voluntary. Hamilton, 510 F.3d at 1215. “[A] plea is valid if it represents a voluntary and intelligent choice among the alternatives open to the defendant.” United States v. Gigley, 213 F.3d 509, 516 (10th Cir. 2000).
In this action, the record demonstrates that Mr. Coates knowingly and voluntarily entered his guilty plea. In the plea agreement, Mr. Coates confirmed that after discussing the matter with his attorney, he understood the rights he was giving up by pleading guilty, and that “he is pleading guilty because he is, in fact, guilty.” R., Vol. 2, at 30, ¶ 6 (Plea Agreement, filed Dec. 6, 2010).
The voluntariness of the guilty plea is also evident from the district court‘s detailed and thorough exchange with Mr. Coates during the plea colloquy. See United States v. Graham, 466 F.3d 1234, 1239 (10th Cir. 2006); Gigley, 213 F.3d at 517; Jones, 168 F.3d at 1220; Carr, 80 F.3d at 417. Throughout the colloquy, Mr. Coates assured the district court that he understood the nature of the proceeding and the charges against him.4
For the reasons outlined below, Mr. Coates asserts that the guilty plea was not knowing and voluntary. However, his claim fails on each ground.
First, Mr. Coates asserts that “[he had] recently started depression medication that seemed to distance [him] from reality.” Resp. to Anders Br. at 1. As a result, he “was not thinking rationally [when he entered his guilty plea] and did not understand what was taking place.” Id. But Mr. Coates “offered no evidence [to the district court, and offers no evidence to this court on appeal] (such as medical records or narcotic drug prescriptions or doctors’ affi-
no sentence reduction can be granted by the Court unless the United States, at a later date, files a motion for sentence reduction pursuant to 5K1 or Rule 35.” R., Vol. 3, at 66. The government also explained that though a further sentence reduction may be possible in the future, the plea agreement accounted for Mr. Coates‘s assistance prior to the plea. Id. at 67 (“[T]his leaves open the possibility that if at any time in the future the government asks the defendant to testify in a criminal trial, there may be a recommendation for a sentence reduction, but there are no promises of that, and there‘s really no way of knowing if that will happen.“). After the government had explained the plea agreement, Mr. Coates‘s counsel stated that Mr. Coates agreed with the government‘s explanation, but added that she had “made representations to Mr. Coates that he [sic] may be possible to have a 5K1.1 departure.... So hopefully that‘s going to be something that [the government and Mr. Coates] could explore in the future.” Id. at 69. The district court then explained: “If I take your plea today and find you guilty and thereafter sentence you in accordance with the terms of this plea agreement, you cannot then get second thoughts and withdraw it because you‘ll be stuck with this sentence of 20 years. There‘s simply no way around that, and I don‘t have any discretion to sentence you in any other way.” Id. at 71. The district court verified that Mr. Coates had read and signed the plea agreement (in which Mr. Coates agreed to stipulate to the twenty-year sentence). The district court explained that the only way Mr. Coates would receive a lower sentence than twenty years would be if the government filed a motion requesting to reduce the sentence. The government then explained again that the agreed-upon sentence of twenty years already accounted for Mr. Coates‘s assistance to the government, and that the only possibility for a further reduction would be “if the government calls upon [Mr. Coates] at a later date to testify about the information he [had] provided.” Id. at 76-77. Then the district court again informed Mr. Coates that it would “sentenc[e] [him] to 20 years, no questions asked actually, 20 years, that‘s it, on the date of sentence [sic].” Id. at 86. The court asked Mr. Coates if he understood, and Mr. Coates responded, “Yes, Your Honor.” Id.
Second, Mr. Coates avers that he entered the plea under undue and excessive pressure from his trial counsel. “A guilty plea entered upon the advice of counsel is invalid if the plea was coerced, or if the advice of defendant‘s counsel was not within the range of competence demanded of attorneys in criminal cases.” Carr, 80 F.3d at 416 (citation omitted). However, this claim amounts to an ineffective-assistance-of-counsel claim, and, on these facts, the claim must be brought on collateral review. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptive-ly dismissible, and virtually all will be dismissed.“).
Although we may review ineffective-assistance claims in “rare” cases where the factual record is sufficiently developed, United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008), a collateral proceeding is preferable because “[a]n opinion by the district court is a valuable aid to appellate review for many reasons, not the least of which is that in most cases the district court is familiar with the proceedings and has observed counsel‘s performance, in context, firsthand,” United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006) (quoting Galloway, 56 F.3d at 1240) (internal quotation marks omitted).
In this action, Mr. Coates claims that in various ways his trial counsel caused his guilty plea to not be knowing and voluntary. It is patent that Mr. Coates‘s ineffective-assistance-of-counsel claims would require further development of the record. See Aplt. Anders Br. at 9 (“The claims implicating effectiveness of counsel referenced off record conversations that were not developed in the record and, therefore, not available for consideration by the district court.“). For example, as the government pointed out in its memorandum in opposition to Mr. Coates‘s motion to withdraw his guilty plea, “the fact that his defense counsel told him that he could spend the rest of his life in prison if convicted” could be “a realistic appraisal of the ... charges” rather than “a ‘scare tactic’ as [Mr. Coates] claims.” R., Vol. 1, at 383.5 Mr. Coates‘s ineffective-assistance-of-counsel claims “require[] precise-ly the type of factual determinations con-
3. Other Factors
We need not address the remaining Yazzie factors, viz., prejudice to the government, the timing of the motion, the inconvenience to the court, and the waste of judicial resources. “[T]hese factors speak to the potential burden on the government and the court, rather than the defendant‘s reason for withdrawal,” and “cannot establish a fair and just reason for withdrawal.” Hamilton, 510 F.3d at 1217. Thus, because Mr. Coates failed to establish a fair and just reason for withdrawing his guilty plea under the prior two factors, the district court did not abuse its discretion in denying his motions.
B. Other Claims on Appeal
1. Unreasonable Sentence
Mr. Coates appears to argue that his sentence is substantively unreasonable because it is unreasonably long, given his offense and individual characteristics, and because it creates an unwarranted sentencing disparity between his sentence and his codefendant‘s sentence. But Mr. Coates “specifically waive[d] his right to appeal the sentence he receive[d] as a result of [the] Plea Agreement.” R., Vol. 2, at 33, ¶ 12. “[H]e ma[de] the knowing and intelligent choice to waive his right to appeal his sentence.” Id. at 33-34.7 Accordingly, Mr. Coates waived his right to appeal his sentence.8
Nevertheless, the government has waived its right to enforce the sentence-appeal waiver by not invoking the waiver in this Court. The government declined to submit a brief in response to the Anders brief, and instead submitted a letter noting its “agree[ment] with the conclusion in counsel‘s Anders brief that there are no non-frivolous claims that could fairly be
Ignoring the appellate waiver, we are still left with Mr. Coates‘s agreement stipulating to a twenty-year sentence. In light of this plea agreement, we hold that Mr. Coates‘s sentencing challenges necessarily must fail because any error by the district court in setting the length of the sentence at twenty years was invited. See United States v. Mancera-Perez, 505 F.3d 1054, 1055 (10th Cir. 2007) (“[H]e has invited any error regarding the length of his sentence ... and his claims [raised] now for the first time on appeal are waived.“); see also United States v. Grillo, 431 Fed.Appx. 677, 680 (10th Cir. 2011) (“[The appellant] received a sentence within the range she requested, so she has waived her argument that her sentence was substantively unreasonable.“); United States v. Perez-Cruz, 404 Fed.Appx. 255, 257 (10th Cir. 2010) (holding that because, at sentencing, the appellant had asked the district court to impose the same sentence he now claims is substantively unreasonable, “the argument [he] seeks to make was waived“), cert. denied, --- U.S. ---, 131 S.Ct. 1831, 179 L.Ed.2d 786 (2011); United States v. Ramos-Lopez, 390 Fed.Appx. 833, 836 (10th Cir. 2010) (holding that by requesting a sentence at the low end of the Guidelines, “[i]t is clear ... that [the appellant] waived any argument that he was entitled to a below-guideline sentence“); United States v. Tafolla-Zavala, 362 Fed.Appx. 895, 897 (10th Cir. 2010) (“Any error as to the procedural or substantive reasonableness of the sentence was waived when counsel indicated agreement with the sentence to be imposed.“).
To be sure, at sentencing—contrary to the terms of his plea agreement—Mr. Coates argued, both directly and through his counsel, that the agreed-upon sentence was unreasonable. However, the plea agreement was still in full force and effect. See United States v. Novosel, 481 F.3d 1288, 1293 n. 3 (10th Cir. 2007) (“Once a defendant‘s guilty plea is entered and accepted by the court, however, the defendant is bound by the plea agreement,
2. Accomplice Testimony
According to Mr. Coates, “[a]ll evidence against [him] was circumstantial and [the prosecution‘s] main witness ... was an ex-convict [and his co-defendant] that had done time for conspiracy before [and] who was quick to point the finger.” Resp. to Anders Br. at 2. But Mr. Coates fails to explain how these facts, even if true, would entitle him to withdraw his guilty plea or to other relief from this court. Nor can we readily discern how, absent something more, reversible error could be predicated on these facts. Cf. United States v. Ivy, 83 F.3d 1266, 1284 (10th Cir. 1996) (“We will not reverse a conviction merely because the verdict was grounded on the uncorroborated testimony of a coconspirator.“).
3. Brady Violation
Mr. Coates also claims a potential Brady violation, because “evidence from the vehicle searches was never disclosed: Identification in one of the vehicles as-well [sic] as dna evidence in syringes.” Resp. to Anders Br. at 2. “To establish a Brady violation, the defendant must prove that the prosecution suppressed evidence, the evidence was favorable to the defense, and the evidence was material.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009). Mr. Coates makes no attempt to explain how the allegedly withheld evidence was favorable to the defense,9 or why it was material. Therefore, even assuming that the prosecution suppressed the evidence identified by Mr. Coates, Mr.
4. Judicial Bias
Mr. Coates “believe[s] the prosecution and the [district] court were prejedice [sic] towards [him] by association of [his] family.” Resp. to Anders Br. at 2. But apart from this bald assertion, Mr. Coates provides no argument, much less any evidence, that would support his claim of bias. Because we find no evidence in the record that suggests any judicial or prosecutorial bias against Mr. Coates, this claim fails.
5. Counsel‘s Conflict of Interest
According to Mr. Coates, his counsel had previously been involved in litigation against both of [Mr. Coates‘s] parents[:] [Mr. Coates‘s] mother in a custody battle where [counsel] had deemed [his] mother a drug addict and [Mr. Coates‘s] father in ... a girlfriend[‘s] coustody [sic] battle where [counsel] deemed him a drug dealer. Also during the litigations between [Mr. Coates‘s] mother and her former husband[, counsel] had acted as guardian ad-lightum [sic] to [Mr. Coates‘s] younger brother and sister. Resp. to Anders Br. at 1-2.
Mr. Coates “[believes] that these issues were not only ... good cause and relevent [sic] to ask for dismissal of Counsel but drastically affected her proffessional [sic] duty by her assumption of [Mr. Coates‘s] guilt by her prior contact [with his] family members.” Id. at 2. Again, this is exactly the type of ineffective-assistance-of-counsel claim that would require a fully developed record. As discussed above, such ineffective-assistance-of-counsel claims must be brought, if at all, on collateral review.10
IV. CONCLUSION
After conducting a thorough, independent examination of the record, we are confident that there are no non-frivolous issues to present on appeal. Consequently, we AFFIRM the district court‘s judgment and sentence.
JEROME A. HOLMES
UNITED STATES CIRCUIT JUDGE