[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 29, 2011
JOHN LEY
No. 09-15495
CLERK
________________________
D. C. Docket Nos. 09-00212-CV-T-17-MAP
02-00424-CR-T-1
KABIL ANTON DJENASEVIC,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 29, 2011)
Before MARTIN, FAY and BLACK, Circuit Judges.
PER CURIAM:
Kabil Anton Djenasevic, a federal prisoner, appeals through counsel, the
district court’s denial of his pro se motion to vacate pursuant to 28 U.S.C. § 2255.
In his original petition, Djenasevic alleged that the trial and appellate counsel were
ineffective, among other things, for failing to object that certain comments that the
district court made at a pre-conviction suppression hearing amounted to
impermissible participation in the plea negotiations. The district court denied this
claim on two bases: (1) it was not a cognizable ground for collateral attack;1 and (2)
even if cognizable, Djenasevic failed to show that it resulted in any harm. The court
made a separate finding that it did not participate in the plea discussions, but was
instead trying to “stress[ ] the benefits of cooperation” and help Djenasevic “see the
options he had.” We granted a certificate of appealability (“COA”) as to the
following issue:
Whether the district court erred in finding that
Djenasevic’s attorney did not provide ineffective
assistance of counsel by failing to argue, before the
district court and on direct appeal, that the district
court improperly participated in plea negotiations, in
violation of Fed.R.Crim.P. 11(c)(1).
1
Appellant’s challenge is cognizable as it goes directly to the voluntary nature of his
guilty plea.
2
After reviewing the record, studying the briefs and having the benefit of oral
argument, we find a violation of Rule 11 and ineffectiveness of counsel that requires
reversal and we remand the case with instructions.
Substantively, the Federal Rules of Criminal Procedure mandate that “an
attorney for the government and the defendant’s attorney, or the defendant when
proceeding pro se, may discuss and reach a plea agreement. The court must not
participate in these discussions..” Fed.R.Crim.P. 11(c)(1) (emphasis added). Rule
11(c)(1) is a “bright line rule” that prohibits “the participation of the judge in plea
negotiations under any circumstances . . .[and] admits of no exceptions.” United
States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996) (quotation omitted). Although
other circuits recognize harmless error in the context of judicial participation, we do
not. United States v. Casallas, 59 F.3d 1173, 1177 n.8 (11th Cir. 1995). Moreover,
judicial participation is plain error for which the “defendant need not show actual
prejudice,” United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993). “The
potential for coercion is greatest when a defendant realizes that the judge who is
expressing an opinion . . . that he should plead, is the same person who will preside
at his trial, and, if convicted, his sentencing.” Casallas, 59 F.3d at 1178 n.9.
The colloquy in question took place during a hearing held on July 28, 2005, to
consider appellant’s motion to suppress. We need not set forth the comments made
3
by the district judge since during oral argument the government conceded there was
a clear violation of Rule 11 and our precedent.2 This conduct by the district judge
apparently had the desired result as appellant changed his plea to guilty on Monday,
August 1, 2005, the day scheduled for the trial to begin.3
Immediately thereafter appellant and his counsel had serious disagreements
over how to proceed. Following several hearings, the magistrate judge appointed new
counsel.
Djenasevic, through substitute counsel, moved to withdraw his guilty plea. He
contended that he did not freely or intelligently enter the plea. He further contended
that he was not actually guilty and did not intend to waive any rights. The
government opposed the motion. The court denied Djenasevic’s motion without a
hearing, finding that his factual allegations lacked a sufficient basis and that his plea
was voluntary.
Djenasevic appeared for sentencing in March 2006. The district court
ultimately sentenced him to a total of 324 months’ imprisonment on all counts.
Djenasevic appealed. On appeal, he argued, through counsel, that his guilty
plea should be set aside because: (1) the government, by contesting his acceptance
2
We appreciate the professional candor of the Assistant United States Attorney.
3
The motion to suppress was denied on July 29, 2005.
4
of responsibility, broke a promise essential to the plea; and (2) his plea was based on
trial counsel’s factually inaccurate statement that a treaty would allow him to serve
his sentence abroad. He also challenged his sentence. This Court affirmed. See
United States v. Djenasevic, 248 Fed.Appx. 135, 136 (11th Cir. 2007) (unpublished).
To the extent we construed Djenasevic to assert ineffective assistance of counsel, we
dismissed the claim without prejudice to be reasserted in a collateral attack. This he
has done.
In reply to the government’s response to his § 2255 motion, Djenasevic
reiterated that he pled guilty due, in part, to impermissible judicial interference. A
coerced plea, he contended, was open to collateral attack. In a supporting affidavit,
he stated that he did not intelligently plead guilty and counsel did not protect his
interests during the process, depriving him of effective assistance and resulting in a
coerced plea.
The government, while conceding a violation of Rule 11, urges the need for a
hearing as to the ineffectiveness of counsel to determine when counsel knew about
the remarks of the trial judge and whether there was in fact ineffectiveness in
representation. We find such unnecessary, however, since appellant’s counsel at the
time was the one to whom the trial judge’s comments were directed during a sidebar
conference at the hearing on July 28, 2005. The only conclusion we can draw from
5
the record is that shortly after the change of plea on August 1, 2005, appellant
changed his mind and told counsel he wanted to withdraw his guilty plea. Rather
than pursue that course, counsel filed a motion to withdraw.4 Under these
circumstances, it was ineffectiveness of counsel to not file a proper motion requesting
such relief based upon this clear violation of Rule 11.
When a Rule 11(c)(1) violation requires remand, as this case does, “the case
should be reassigned to another judge even if there is no evidence that the judge is
vindictive or biased, as the means to extend the prophylactic scheme established by
Rule 11 and to prevent the possible mis-impression created by the judge’s
participation.” Corbitt, 996 F.2d at 1135.5
Consequently, we reverse the ruling of the district court, remand the case for
reassignment to a new judge. The new district judge shall convene a hearing and
determine whether the petitioner wishes to withdraw his guilty plea. If the Petitioner
elects to withdraw his guilty plea, the district court shall vacate his conviction and
sentence and proceed accordingly.
REVERSED and REMANDED with instructions.
4
Actually there were two motions to withdraw. The first was denied; the second was
granted.
5
We do not question the motivation of the district court or the intent to fully inform the
appellant of his options. However, that does not excuse the error.
6