MEMORANDUM AND ORDER RE: MOTION TO WITHDRAW GUILTY PLEA

MARVIN J. GARBIS, District Judge.

The Court has before it Defendant Yelizarov's Motion to Vacate Guilty Plea and Appoint New Counsel [ECF No. 56] and the materials submitted relating thereto. The motion was filed pro se but the Defendant has since obtained counsel to represent him regarding the matter. The Court has held a hearing and heard evidence — including testimony — regarding the motion, and makes findings of fact stated herein based upon its evaluation of the evidence and the reasonable inferences drawn therefrom.

I. BACKGROUND

Defendant Yelizarov is charged with committing a murder during and in relation to a crime of violence for which he may be prosecuted in federal court, in violation of 18 U.S.C. § 924(c) and (j)(1). He was represented by appointed counsel, Michael Edward Lawlor, Esquire.

Trial was scheduled to begin on Monday, September 11, 2017. On the business day before trial was to begin — Friday, September 8 — Yelizarov entered a plea of guilty to the Indictment.1

Nearly three months later, on December 5, 2017, Yelizarov filed the instant motion claiming that he was "forced under duress to take a guilty plea by Mr. Lawlor" and asserting that Mr. Lawlor had not provided him with adequate professional representation. Def.'s Mot. at 1, ECF No. 56.

II. LEGAL STANDARD

Rule 11(d)(2)(b) of the Federal Rules of Criminal Procedure provides:

The defendant bears the burden of demonstrating a fair and just reason for the withdrawal. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). In deciding whether to grant a defendant's request to withdraw his guilty plea, the Court considers a variety of factors, including:

Id.

III. DISCUSSION

There is no contention by Defendant Yelizarov that the Court's Rule 11 proceeding was in any way defective. Rather, the Defendant now states that he testified falsely under oath during the Rule 11 proceeding in which he acknowledged the efforts of his attorney2 and admitted that the Government could prove that he intentionally shot the victim to kill him during the robbery.3

Accordingly, the properly conducted Rule 11 colloquy creates a "strong presumption" that the plea is final and binding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) ("If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding.").

The Court, now having heard the testimony of Defendant Yelizarov and Mr. Lawlor regarding the attorney-client discussions at the time of the guilty plea, finds that Yelizarov has not established inadequate professional performance by his attorney and has not offered credible evidence that his plea, made under oath, was not knowing or not voluntary. Mr. Lawlor had done all that was reasonably expected of counsel in light of the Government's evidence. In light of the evidence, there was no realistic possibility of an acquittal had the case proceeded to trial, and counsel's negative prognosis of the trial result was justified. Moreover, under the abject circumstances faced by Defendant Yelizarov the day before trial, he made a reasonable choice to plead guilty to avoid the negative effect on sentencing of conviction after the full presentation of evidence at trial.

Yelizarov did not have when pleading guilty, and does not now have, have any rational basis for belief that he could avoid conviction were the case to be tried.4 The asserted credibility problems of certain Government witnesses were not of material value to the Defense, and Yelizarov had provided his attorney with any information that could have been usable to avoid conviction. Mr. Lawlor did not tell Defendant Yelizarov that he was unprepared to try the case, but did provide a justified negative trial prediction and did state that he did not know how the case could successfully be defended. Defendant Yelizarov, understandably unhappy with the situation he faced, nevertheless voluntarily and reasonably, with full knowledge of his rights, decided to plead guilty.

Moreover, there is nothing to indicate any contemporaneous dissatisfaction with the plea. Indeed, recorded telephone conversations promptly after the plea with his girlfriend do not reflect that Yelizarov had any doubt or regrets about his course of action. His words and his tone in those conversations did not indicate that he felt he was forced to plead guilty under duress. It was only months later that Yelizarov decided to file the instant motion.

Were the motion to be granted and a new lawyer appointed, there is no reason to believe that a competent replacement lawyer would have a different view of the case than did Mr. Lawlor. Nor is there reason to believe that any replacement lawyer would, even now, advise Yelizarov to proceed to trial rather than to enter a plea of guilty. The evidence establishes that withdrawal of the plea would cause prejudice to the Government5 and waste resources6 for all involved.

For the foregoing reasons, the Court finds that Defendant Yelizarov has not shown a fair and just reason for permitting the withdrawal of the guilty plea he properly entered.

Accordingly:

SO ORDERED.