United States v. Goddard

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Pursuant to Sixth Circuit Rule 206
File Name: 11a0044p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5120
v.
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Defendant-Appellant. -
CALVIN LEE GODDARD,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 07-00134-002—Joseph M. Hood, District Judge.
Argued: January 13, 2011
Decided and Filed: February 10, 2011
Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for
Appellant. Ron L. Walker, Jr., ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee. ON BRIEF: David E. Mills, THE MILLS LAW
OFFICE LLC, Cleveland, Ohio, for Appellant. Ron L. Walker, Jr., Charles P. Wisdom,
Jr., ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Calvin Goddard pleaded guilty to attempting to
possess with intent to distribute 500 grams or more of cocaine and to criminal forfeiture.
After rejecting Goddard’s request to withdraw his guilty plea, the district court imposed
a 180-month sentence. Goddard appeals the district court’s denial of his motion to

1
No. 09-5120 United States v. Goddard Page 2

withdraw his guilty plea and claims that he was denied counsel during the hearing on his
motion to withdraw the guilty plea. For the reasons that follow, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

According to the Pre-Sentence Investigation Report (“PSR”), in 2006 law
enforcement officials began investigating the drug-trafficking activities of one Otto
Frank Willhite. Investigators believed that Willhite conspired with others, including
defendant-appellant Goddard, to distribute cocaine and Oxycontin pills in central
Kentucky. On June 22, 2007, officers with the Lexington Police Narcotics unit, utilizing
a confidential informant, arranged to sell two kilograms of cocaine to Goddard. Goddard
and Willhite arrived at an agreed location, began the transaction, and were arrested. The
police found 29.18 grams of cocaine in the car, along with 0.3 grams of cocaine in the
center console of the vehicle.

Goddard was initially indicted on three counts: two cocaine-related counts
(21 U.S.C. §§ 841(a)(1) and 846) and a criminal forfeiture count (21 U.S.C. § 853). A
Superseding Indictment added more counts and defendants, notably adding a claim for
conspiracy to distribute Oxycontin pills (21 U.S.C. §§ 841(a)(1) and 846) against
Goddard. A Second Superseding Indictment added an additional defendant. Goddard
pleaded not guilty to each indictment and was released on bond pending trial. Trial was
delayed because Goddard filed three motions to continue for medical reasons, all of
which were granted.1

Goddard subsequently filed a motion for rearraignment. At the rearraignment
hearing on September 29, 2008, the day prior to trial, Goddard pleaded guilty pursuant
to a written plea agreement to Count One (attempting to possess with intent to distribute

1
Goddard suffers from serious health problems. In April 2007, a tumor was discovered in his
lower left jaw, and he was diagnosed with large-cell neuroendocrine carcinoma, an aggressive and rare
form of cancer. Goddard had surgery in May 2007 to remove the tumor, and he later developed facial
nerve paralysis, which led to the complete paralysis of the left side of his face. Because he could not close
his left eye, he was in danger of losing it. In August 2007, Goddard began a series of aggressive radiation
treatments, including approximately eighteen sessions over the next two months. He was also fitted with
a weighted gold implant in his left eye to help close it. Doctors performed a radical right facial dissection
in a continued effort to remove cancerous cells. At the time of his rearraignment in September 2008,
Goddard’s counsel stated that Goddard had numerous medical issues still to address, including removal
of a catheter port in his chest and an upcoming nerve-graft surgery.
No. 09-5120 United States v. Goddard Page 3

500 grams or more of cocaine, in violation of 21 U.S.C. § 846) and Count Nine (criminal
forfeiture) of the Second Superseding Indictment, and sentencing was scheduled for
January 5, 2009. During the rearraignment hearing, Goddard was placed under oath and
the court established that he was competent, that he had seen and discussed the
indictment with his attorney, and that he was fully satisfied with his counsel and the
advice rendered by his counsel. Goddard acknowledged that he was not under a mental
disability, that he had not been forced or coerced to enter a guilty plea, and that he had
reviewed the plea agreement with his attorney and understood it. Goddard further
acknowledged that he understood that he could receive a term of imprisonment of life
as mandated by the statute and that he would not be able to withdraw his plea upon
sentencing. Thereafter, Goddard admitted his guilt and was immediately placed in
custody.

On October 7, 2008, Adele Burt Brown, retained counsel for Goddard, filed a
motion to withdraw Goddard’s guilty plea or, in the alternative, for Goddard to be
released from custody, and to withdraw as counsel. In the motion, Attorney Brown
explained that Goddard would not have pleaded guilty “if he had known [that] he would
not have [had] an opportunity to try to obtain a 5k motion” to decrease his sentence for
cooperation with the government. Goddard believed that he would have “several
additional weeks to work on earning that motion for sentence reduction. He was not
aware until shortly before he entered his plea that it was possible that he would be
incarcerated immediately.” The motion further explained that

[T]he undersigned attorney was not aware of the Court’s policy of
immediately incarcerating defendants after entry of pleas in presumption
cases; counsel informed Defendant that he would likely be incarcerated
if he were convicted at trial[,] but that he would probably be permitted
to self-surrender if he entered a guilty plea, since the government was not
seeking immediate incarceration but instead was willing to allow him to
attempt to co-operate with law enforcement authorities.
Because counsel failed to anticipate that Defendant would be taken into
custody after entry of his plea and would not have any additional chance
to earn a motion from the United States, Defendant wants his attorney to
withdraw from this case.
No. 09-5120 United States v. Goddard Page 4

Nowhere in Goddard’s motion to withdraw his guilty plea did his counsel mention that
Goddard wanted to remain outside of prison for medical reasons.

Goddard also submitted a letter to the district court, which was filed in the record
on October 8, 2008. In the letter, Goddard explained that he had written a letter to
Attorney Brown requesting that she file the motion to withdraw the plea and to withdraw
as counsel. He explained that he planned to contest her effectiveness as counsel and that
he wished the court to appoint him counsel for any further proceedings.

On October 9, 2008, the district court held a hearing on the motions. During the
hearing, Attorney Brown advised the court that Goddard’s “request to withdraw his
guilty plea does not seem to be based on his belief that he is not guilty but that he should
not be in custody.” Attorney Brown explained that Goddard “did not anticipate that he
would be placed in custody then [immediately following the entry of his guilty plea].”
As she further explained, Goddard “had been discussing with the government the
opportunity to continue to get a 5(k) motion. And he was supposed to have maybe two
or three more weeks to work on [cooperating with law enforcement] before he went into
custody, or at least that’s what we anticipated.” Attorney Brown also noted that
Goddard was concerned about being in custody given his medical issues and explained
that the best remedy would be for him to remain out of custody “for a couple more
weeks.” The court asked Goddard if he had anything to add to his counsel’s explanation
of the situation and he demurred.

The court then explained that there was a multi-factor test governing the
withdrawal of pleas and that the only factor of that test that enured to Goddard’s benefit
was the short period of time between the plea and the motion to withdraw the plea.
However, the court specifically noted that Goddard did not seek to withdraw his plea
because he was claiming innocence, but rather because he “didn’t get a chance to
cooperate,” which the court explained might or might not have been true. The court
then explained at length the conduct that Goddard had admitted to in both the plea
agreement and at the rearraignment. The court also mentioned that Goddard continued
to engage in illegal activities while free on bond. The court then permitted Goddard to
No. 09-5120 United States v. Goddard Page 5

speak at the hearing and Goddard engaged in a lengthy soliloquy about how he had been
denied the opportunity to offer his cooperation to authorities, but at no point did he
mention that he sought to be free from incarceration in order to deal with medical issues.
The court denied the motion to withdraw Goddard’s plea, granted Attorney Brown’s
motion to withdraw, and set a sentencing date. Goddard, acting pro se, filed an
interlocutory appeal with this court on October 14, 2008 inter alia challenging the
district court’s denial of his motion to withdraw his guilty plea. We denied the appeal
insofar as it attempted to obtain interlocutory review of the denial of the motion to
withdraw.

Thereafter, the district court appointed Goddard new counsel and sentencing was
rescheduled for January 26, 2009. The Probation Office calculated Goddard’s
Guidelines range to be 360 months’ imprisonment to life. Prior to sentencing, the
government filed 5K1.1 motions on Goddard’s behalf seeking a reduced sentence—the
result Goddard had sought through his attempts to cooperate with the government. The
court granted the government’s motions and sentenced Goddard to 180 months’
imprisonment. The court dismissed the remaining charges against Goddard.

Goddard timely appealed.

ANALYSIS

I. Goddard’s Motion to Withdraw His Plea

Goddard first argues that the district court should have permitted him to
withdraw his guilty plea. “A defendant may withdraw a plea of guilty” before
sentencing if “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review a district court’s denial of a
defendant’s motion to withdraw a plea for an abuse of discretion. United States v. Bazzi,
94 F.3d 1025, 1027 (6th Cir. 1996). A district court abuses its discretion when it “relies
on clearly erroneous findings of fact, improperly applies the law or uses an erroneous
legal standard.” United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006).
No. 09-5120 United States v. Goddard Page 6

The rule regarding the withdrawal of guilty pleas is designed “to allow a hastily
entered plea made with unsure heart and confused mind to be undone, not to allow a
defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain
a withdrawal if he believes that he made a bad choice in pleading guilty.” United States
v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991) (quotation and citation omitted). “[I]t
is well settled that the movant has the burden of establishing that his presentence motion
to withdraw his plea should be granted.” United States v. Triplett, 828 F.2d 1195, 1197
(6th Cir. 1987).

In United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), superseded on
other grounds by statute as recognized in United States v. Caseslorente, 220 F.3d 727,
734 (6th Cir. 2000), we set forth the considerations that should be given to determine
whether the defendant has set forth a “fair and just reason” for the withdrawal of the
plea:

(1) the amount of time that elapsed between the plea and the motion to
withdraw it; (2) the presence (or absence) of a valid reason for the failure
to move for withdrawal earlier in the proceedings; (3) whether the
defendant has asserted or maintained his innocence; (4) the
circumstances underlying the entry of the guilty plea; (5) the defendant’s
nature and background; (6) the degree to which the defendant has had
prior experience with the criminal justice system; and (7) potential
prejudice to the government if the motion to withdraw is granted.

These factors represent “a general, non-exclusive list and no one factor is controlling.”
Bazzi, 94 F.3d at 1027.

The district court acted within its discretion in concluding that the application of
these factors did not entitle Goddard to withdraw his guilty plea. In considering these
factors, the only ones that unquestionably favor Goddard are the first two: the amount
of time elapsed before seeking to withdraw the guilty plea and the reason for any delay.

Goddard argues on appeal that the innocence factor “has little weight here,” and
suggests that “[t]o the extent this Court has generally given weight to this factor,
contrary to the Supreme Court’s [precedent in Kercheval v. United States, 274 U.S. 220,
No. 09-5120 United States v. Goddard Page 7

224 (1927)], this Court should disavow that practice.” We disagree. Goddard signed
a plea agreement listing the facts constituting the crime to which he pleaded guilty. He
was asked about the crime’s factual predicate under oath in court prior to the district
court accepting his guilty plea. He agreed to the conduct he was charged with, except
that he claimed not to remember the presence of any digital scales for weighing cocaine
for sale. Indeed, even in his motion to withdraw his plea and at the hearing on his
motion to withdraw his plea, Goddard did not claim to be innocent. As Goddard himself
stated:

Withdrawing my plea doesn’t necessarily mean that I am innocent. But
it says that I want to enjoy my right to trial. I believe there are enough
discrepancies in the state case that I have a good chance, and I am willing
to take that chance. I am not saying that I am completely innocent. But
a lot of stuff in that case that is said I have to agree to to get to this plea
bargain, but they are not true.

Quite plainly, the Bashara prong regarding an assertion of innocence does not enure to
Goddard’s benefit. See United States v. Baez, 87 F.3d 805, 809 (6th Cir. 1996) (“Some
courts have held that the absence of a defendant’s vigorous and repeated protestations
of innocence support the denial of a motion to withdraw a guilty plea.”).

Relatedly, the circumstances surrounding Goddard’s plea are unremarkable. On
appeal, Goddard argues that this factor weighs in his favor for four reasons:
(1) Goddard’s counsel did not believe that Goddard would be immediately placed into
custody; (2) the district court relied on an unproven rumor that Goddard was selling
drugs while on bond; (3) the district court failed to comply with Rule 11(b)(F), requiring
the district court, after advising the defendant of his trial rights, to advise the defendant
that a guilty plea expressly waives those rights; and (4) Goddard was effectively denied
counsel at the hearing on his motion to withdraw. The first and fourth arguments
facially fail. In his motion to withdraw his plea, Goddard admitted that he was made
aware shortly before he entered his plea that it was possible that he would be
incarcerated immediately. Further, whether Goddard was effectively denied counsel at
the hearing on his motion to withdraw subsequent to his rearraignment is irrelevant to
the circumstances of his plea. While the district court did comment on a rumor that
No. 09-5120 United States v. Goddard Page 8

Goddard had sold drugs while on bond, at the rearraignment proceeding, without
prompting, Goddard’s counsel had acknowledged having heard about this activity.
Finally, the district court specifically addressed Goddard’s trial rights and though it did
not specifically note that Goddard would waive them by pleading guilty, the colloquy
sufficiently satisfied Rule 11(b)(F).

Goddard’s nature and background support the district court’s denial of his motion
to withdraw his guilty plea. He was well-educated,2 suggesting that he understood the
consequences of his actions. See United States v. Quinlan, 473 F.3d 273, 278 (6th Cir.
2007) (noting that a defendant can understand the consequences of a plea agreement
when possessing a sufficiently robust educational background); Ellis, 470 F.3d at 285
(same). Though we have previously noted that health problems can lead to this factor
being counted in a defendant’s favor, see United States v. Dixon, 479 F.3d 431, 437 (6th
Cir. 2007), we are unpersuaded that Goddard’s health problems presented a fair and just
reason for the district court to permit him to withdraw his plea.

“The sixth factor the Court considers to determine whether Defendant’s motion
to withdraw the guilty plea is for a fair and just reason is the degree to which Defendant
has had prior experience with the criminal justice system.” Ellis, 470 F.3d at 285.
Goddard had two prior drug felony trafficking convictions along with at least two felony
drug convictions. Thus, Goddard had sufficient contact with the criminal justice system
to fully understand his rights and the process.

Finally, “the government is not required to establish prejudice that would result
from a plea withdrawal, unless and until the defendant advances and establishes a fair
and just reason for allowing the withdrawal.” United States v. Spencer, 836 F.2d 236,
240 (6th Cir. 1987). At the time Goddard moved to withdraw his plea, the government
would not have been prejudiced. However, because Goddard had not established a fair
and just reason for the district court to allow the withdrawal, this factor was immaterial
to the district court’s decision.

2
According to the PSR, Goddard reported earning bachelors, masters, and doctorate degrees in
theology.
No. 09-5120 United States v. Goddard Page 9

Consequently, because the district court’s analysis of Goddard’s motion to
withdraw his guilty plea was properly conducted pursuant to Bashara, we conclude that
the district court did not abuse its discretion in denying the motion.

II. Goddard’s Representation at the Hearing on His Motion to Withdraw His Guilty
Plea
Goddard’s second argument is that he “was denied his right to counsel at the
plea-withdrawal hearing.” He claims that:

The court was well aware that Goddard alleged that [his] counsel was
ineffective for misinforming him that he would not be taken into custody
[following his guilty plea]. . . . Instead of assessing whether a conflict
indeed existed, however, the court proceeded to conduct the plea-
withdrawal hearing. This forced Goddard to act as his own attorney,
contrary to his request for appointed counsel. Then, at the end of the
hearing, the district court stated that counsel’s motion to withdraw as
Goddard’s attorney was granted. Not only was this procedure
backwards, it reveals that the district court concluded that Brown should
no longer be Goddard’s attorney—precisely what should have been
resolved at the outset.

This claim is misleading—Goddard unquestionably had counsel at the plea-withdrawal
hearing because the district court had not granted his attorney’s motion to withdraw as
counsel until after it denied Goddard’s motion to withdraw his guilty plea. Goddard’s
argument on appeal is that because he no longer wished to be represented by Attorney
Brown at the time of the hearing on the motion to withdraw the guilty plea, Attorney
Brown therefore had a conflict of interest in representing Goddard at the hearing and he
was thereby constructively denied the assistance of counsel. Moreover, Goddard’s
argument on appeal that he was forced to argue in support of this motion pro se is
contradicted by the record. Goddard only spoke to the court after Attorney Brown had
argued the motion, the court had considered it, and the court had denied it.
Consequently, Goddard’s argument fails.

We have previously held that “where a district court is on notice of a criminal
defendant’s dissatisfaction with counsel, the court has an affirmative duty to inquire as
to the source and nature of that dissatisfaction—regardless of whether the attorney is
No. 09-5120 United States v. Goddard Page 10

court-appointed or privately retained.” Rodriguez Benitez v. United States, 521 F.3d
625, 634 (6th Cir. 2008). However, this rule is not implicated here because the district
court’s disposition of Goddard’s motion to withdraw his plea before deciding whether
to permit Attorney Brown to withdraw logically followed from Goddard’s conduct. The
record establishes that Goddard made two requests of Attorney Brown following his
guilty plea: (1) that she file a motion to withdraw his guilty plea and (2) that she seek to
withdraw as counsel. Goddard did not ask that she withdraw as counsel and then seek
new counsel to attempt to withdraw his plea—the requests were made simultaneously.
Attorney Brown precisely followed Goddard’s instructions: she filed a motion to
withdraw his guilty plea and to withdraw as counsel in a single pleading. On appeal,
Goddard argues that the district court should have considered the latter argument first
and then appointed counsel to argue the former motion. But this would have thwarted
Goddard’s expressed desire and denied him the representation of the attorney he had
retained3 and implicitly wished to argue the motion. Had Goddard not wanted Attorney
Brown to argue to the court that his guilty plea should have been withdrawn, he would
not have specifically instructed her to file the motion and sent a letter to the court
confirming this instruction. Quite obviously, if Attorney Brown sought to withdraw as
counsel first, she could not have filed a motion to withdraw Goddard’s plea.
Consequently, our admonition to district courts in Rodriguez Benitez is not implicated
here. In this case, the district court knew about Goddard’s dissatisfaction with Attorney
Brown, but it also knew that Goddard had directed her to file a motion to withdraw his
guilty plea, with the reasonable presumption that she, the author of that motion, would
then argue it to the court.

Further, neither Attorney Brown nor Goddard requested that another attorney
argue the motion to withdraw the guilty plea at the hearing. Consequently, we review
the district court’s actions for plain error. United States v. Vonn, 535 U.S. 55, 66 (2002)
(“A defendant’s right to review of error he let pass in silence depends upon the plain

3
Goddard’s appeal frequently cites precedent regarding indigent defendants and their appointed
counsel. Attorney Brown was not appointed counsel, however; she was retained, a fact that Goddard’s
appellate counsel conceded at oral argument. Following her withdrawal, Goddard established that he was
indigent and was appointed counsel.
No. 09-5120 United States v. Goddard Page 11

error rule.”). Had Goddard not wanted Attorney Brown to represent him at the hearing
on his motion to withdraw his guilty plea, he could have said so or asked her to say so.
The district court provided both Attorney Brown and Goddard an opportunity to be
heard prior to ruling on the motion.4 Instead, Goddard’s conduct was in conformity with
his expressed intention for Attorney Brown to file a motion to seek to withdraw his
guilty plea. As the transcript reflects, the district court requested argument from
Attorney Brown on the motion to withdraw the guilty plea and then, after she had
presented the issue, addressed Goddard and specifically asked “Mr. Goddard, do you
have anything that you would like to say?” and he responded “No.” At that juncture,
Goddard could have quite easily replied: “Yes, I want new counsel to argue my motion
to withdraw my guilty plea.” He did nothing of the sort. The district court then
discussed the factors involved in a withdrawal of a guilty plea and denied the motion.
Only then did Goddard request the opportunity to speak and the court permitted him to
do so at length. And even at this time, Goddard did not complain that Attorney Brown
had argued the motion to withdraw. Goddard instead complained at length about his
inability to cooperate with the government and the contents of the plea agreement he had
signed.

Consequently, Goddard’s argument that he was denied representation at the
hearing on his motion to withdraw his guilty plea fails and the district court did not
commit plain error in the order in which it ruled on the motions. Goddard
unquestionably had representation at the hearing—the counsel that he had retained and
that he had directed to file the motion.5 It is illogical for him to now claim that he did
not wish to be represented by Attorney Brown at the hearing on the motion that he

4
It is certainly true that the district court, faced with a combined motion from Goddard to
withdraw his guilty plea and to permit Attorney Brown to withdraw as counsel, could have questioned
either or both individuals about what Goddard’s preference was in regard to whether he preferred Attorney
Brown to argue the motion to withdraw the guilty plea. But the district court’s decision to proceed in the
manner suggested by the motions filed, to permit the attorney who filed the motion to withdraw the plea
argue the motion to withdraw the plea, was not plain error.
5
For this reason, Goddard’s citation to United States v. Sanchez-Barreto, 93 F.3d 17 (1st Cir.
1996), is distinguishable. There, the defendant had filed a pro se motion to withdraw the guilty plea and
the defendant’s counsel sua sponte moved to withdraw as counsel. Id. at 22. Here, Goddard instructed
his attorney to file the motion to withdraw his plea and to seek to withdraw as counsel. The conflict that
led the First Circuit to reverse in Sanchez-Barreto is not present in this case.
No. 09-5120 United States v. Goddard Page 12

instructed her to file without support—nothing in the record suggests that Goddard did
not want Attorney Brown to argue the motion that he instructed her to file.6

For these reasons, we AFFIRM.

6
To the extent that Goddard is arguing that Attorney Brown provided ineffective assistance at the
hearing on his motion to withdraw his guilty plea or at other times during her representation of him, we
decline to address the issue. As is our custom, we generally do not review such claims on direct appeal,
preferring that the defendant raise such claims (if at all) in a § 2255 petition. See Massaro v. United States,
538 U.S. 500, 504 (2003) (observing that “in most cases a motion brought under § 2255 is preferable to
direct appeal for deciding claims of ineffective assistance”); United States v. Martinez, 430 F.3d 317, 338
(6th Cir. 2005) (“As a general rule, a defendant may not raise ineffective assistance of counsel claims for
the first time on direct appeal.”). Though the government construes Goddard’s second argument on appeal
as one regarding Attorney Brown’s effectiveness, Goddard does not and we therefore decline to consider
the effectiveness of Attorney Brown at this time.