Filed: Jan. 22, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10078 Document: 00512911397 Page: 1 Date Filed: 01/22/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 14-10078 January 22, 2015 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. EMANUEL JAMES HARRISON, also known as E. J., also known as Chris, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judge
Summary: Case: 14-10078 Document: 00512911397 Page: 1 Date Filed: 01/22/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 14-10078 January 22, 2015 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. EMANUEL JAMES HARRISON, also known as E. J., also known as Chris, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges..
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Case: 14-10078 Document: 00512911397 Page: 1 Date Filed: 01/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-10078 January 22, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
EMANUEL JAMES HARRISON, also known as E. J., also known as Chris,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Emanuel James Harrison pled guilty pursuant to a plea agreement to
one count of conspiracy to file false claims. The district court denied Harrison’s
motion to withdraw his guilty plea without an evidentiary hearing. He was
sentenced to eighty-four months of imprisonment and three years of supervised
release. Harrison appeals, challenging only the district court’s refusal to hold
an evidentiary hearing on his withdrawal motion. We AFFIRM.
Case: 14-10078 Document: 00512911397 Page: 2 Date Filed: 01/22/2015
No. 14-10078
I.
A grand jury charged Harrison in a multi-count, multi-defendant 1
indictment with conspiracy to defraud the Internal Revenue Service (“IRS”) by
filing false claims and with two counts of filing a false claim. 2 Three days before
his trial was set to begin, Harrison signed a plea agreement in which he agreed
to plead guilty to the conspiracy charge. 3 In exchange, the government agreed
to dismiss the remaining charges. Pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), the parties agreed to a sentence of eighty-four months,
which was twenty-four months below the statutory minimum as calculated
based on Harrison’s offense level and criminal history category. Harrison also
agreed to waive his right to appeal his conviction and sentence, but he
expressly reserved the right to challenge the voluntariness of his guilty plea or
waiver of appeal and the right to bring a claim of ineffective assistance of
counsel. 4
Although Harrison’s codefendants signed identical plea agreements,
Harrison’s plea agreement did not mention Harrison’s codefendants, nor did it
1 Harrison was charged alongside five codefendants. Two of the codefendants were
Harrison’s brothers, Jason Phread Altman and Jarrod Phread Altman.
2 The grand jury initially charged Harrison in an indictment dated December 6, 2011.
The grand jury issued a superseding indictment on November 7, 2012, naming an additional
codefendant. Both the initial indictment and the superseding indictment charged Harrison
as “Emanuel James Harrison a.k.a. ‘E.J.’ ‘Chris.’” Both indictments charged Harrison with
one count of conspiracy to file false claims and two counts of filing a false claim.
3 Harrison’s trial was set to begin Monday, August 5, 2013. Harrison signed the plea
agreement on Friday, August 2, 2013.
4 Harrison’s plea agreement included the following waiver provision:
Waiver of right to appeal or otherwise challenge sentence:
Harrison waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742,
to appeal from his conviction and sentence. He further waives his right to
contest his conviction and sentence in any collateral proceeding, including
proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. Harrison, however,
reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the
statutory maximum punishment, or (ii) an arithmetic error at sentencing, (b) to
challenge the voluntariness of his plea of guilty or this waiver, and (c) to bring
a claim of ineffective assistance of counsel. R. at 229-30.
2
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state a condition that each codefendant had to accept the same plea agreement
before the government would agree to any of the plea agreements. Harrison
also signed a plea agreement supplement indicating that there were no
additional terms to his plea agreement. 5 Counsel for Harrison signed both the
plea agreement and the plea agreement supplement. Counsel also signed a
statement appended to each document indicating that he had “carefully
reviewed every part” of the document with Harrison and that, to his knowledge
and belief, Harrison’s decision to sign each document was informed and
voluntary.
Harrison also signed a “factual resume”—a statement on the record
providing a factual basis for his guilty plea. 6 He agreed that, beginning in 2007,
he and several of his codefendants opened and operated a tax preparation
business called “Tax on the Run” (“TOTR”). He admitted that, “[b]eginning in
or about March [ ] 2009,” he and others knowingly conspired to use TOTR to
file false tax returns in the names of numerous clients that “overstated and
fabricated income and tax deductions . . . by falsely representing [to the IRS]
that the taxpayers were entitled . . . to claim a tax credit as a first-time home
buyer.” 7 Harrison further admitted that, once a taxpayer-client obtained an
advanced refund check, the conspirators would transport the taxpayer-client
to a local check cashing business and instruct the taxpayer-client to cash the
refund check. “After the check was cashed, members of the conspiracy paid the
taxpayer[-client] a small percentage of the refund and kept the remainder of
the proceeds.” 8
5 Id. at 356-57.
6
Id. at 233-36.
7
Id. at 235.
8
Id. at 235-36.
3
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The district court rearraigned Harrison, Jason Phread Altman, and
another codefendant, Fread Jenkins, in the same proceeding on August 2,
2013. Harrison indicated that he had reviewed the factual resume, that he
understood the information within it, and that the facts stipulated were true
and correct. Harrison further indicated that he was pleading guilty voluntarily,
that he had not been threatened, forced, or coerced, and that no one had
promised him anything other than what was written in the plea agreement in
exchange for his plea. The district court accepted Harrison’s guilty plea and
explained that it would decide whether to accept his plea agreement after
looking at his presentence report (PSR) and that, if it ultimately did not accept
the plea agreement, Harrison could withdraw his plea.
On September 9, 2013, more than five weeks after he pled guilty, but
before the PSR had been prepared, Harrison moved to withdraw his guilty
plea. He asserted his innocence, alleging that he never knowingly or
intentionally filed a false claim while working with TOTR and that he ceased
working with TOTR before becoming aware of the conspiracy to file false
claims. He also claimed that his plea was not knowingly and voluntarily
entered because, “due to external pressure and influencing factors, [he] felt
threatened and intimidated.” 9 Harrison offered no elaboration or further
explanation of this claim. In an affidavit attached to the motion, Harrison
verified the truth of his assertions. On the same date, Harrison’s appointed
attorneys moved to withdraw as counsel of record, citing “irreconcilable
differences . . . impacting [their] ability to represent [Harrison]” stemming from
Harrison’s desire to withdraw his guilty plea. 10 Harrison signed the motion,
9 Id. at 241.
10
Id. at 245.
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expressing his agreement with his attorneys’ request. The government opposed
both motions.
The district court denied Harrison’s motion to withdraw his guilty plea
in an order dated September 30, 2013. Applying the seven-factor test set out
in United States v. Carr, 11 which the Fifth Circuit employs in considering
whether to grant a defendant’s motion to withdraw a guilty plea, the district
court found, in relevant part: that “Harrison’s assertion of innocence without
more is insufficient to permit withdrawal;” that “Harrison provides no evidence
as to the pressure, threats, or intimidation he now claims resulted in his
involuntary plea;” that “the government would suffer prejudice if Harrison is
allowed to withdraw his plea;” that “withdrawal . . . would substantially
inconvenience the court and would result in a waste of judicial resources”
because it would require the district court to repeat the scheduling and trial
preparation it had undertaken prior to when Harrison entered his plea; and
that “Harrison’s attorney[] is widely considered one of the best criminal defense
attorneys in the Dallas area [and t]hus Harrison had the close assistance of
counsel.” 12 The district court concluded that the Carr factors did not warrant
allowing Harrison to withdraw his guilty plea. The district court’s order did
not address Harrison’s attorneys’ motion to withdraw as counsel of record. 13
Harrison then moved for reconsideration of his motion to withdraw his
guilty plea and specifically requested an evidentiary hearing. Harrison
attached three statements. First, he attached an unsworn statement from
codefendant Fread Jenkins indicating that Harrison “did not participate [in
the scheme,] nor did he gain financially in any way” from the scheme. 14 Second,
11 740 F.2d 339, 343-44 (5th Cir. 1984) (setting forth a seven-factor test, discussed
below).
12 Rawle at 258-61.
13 Counsel continued to represent Harrison through his sentencing hearing.
14 Rawle at 362.
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he attached an unsworn statement from his sister, who had also worked at
TOTR but was not indicted, indicating that Harrison had resigned from TOTR
in “February or March of [ ] 2009 . . . at the beginning of the tax season.” 15
Third, he attached his own sworn affidavit asserting his innocence and stating
that had resigned from TOTR in March 2009 and had severed ties with the
operation, that it was not until August 2009 that he learned his brothers and
other associates had been filing false claims, that he did not know the
individuals on whose behalf he was alleged to have filed false claims, and that
he had never used the aliases “Chris” or “Bobby.” 16 The district court denied
Harrison’s motion to reconsider without stated reasons.
At Harrison’s sentencing hearing, Harrison personally addressed the
district court and again asked to withdraw his guilty plea on the grounds that
he was actually innocent, his plea was involuntary, and he received ineffective
assistance of counsel. He asked the district court to hold an evidentiary hearing
so that he could present evidence supporting his actual innocence, “to include
but not limited to codefendant statements affirming that [he] did not conspire
nor participate in the [scheme].” 17 He claimed that he pled guilty under duress
and coercion because the prosecutor would agree to favorable eighty-four-
month sentences for each defendant only if “all siblings [pled] guilty,” and he
felt pressured to accept the plea because his brothers otherwise faced up to
forty years of imprisonment. 18 Finally, he argued that he received ineffective
assistance of counsel when counsel advised him to enter the plea agreement
despite his assertion of innocence because counsel erroneously suggested that
he would be prejudiced by a prior sexual assault conviction and because
15 Id. at 363.
16
Id. at 364-65.
17
Id. at 324.
18
Id. at 325.
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counsel did not investigate or discover exonerating evidence, “for example, the
true identi[ty] of Chris Smith.” 19
The district court reiterated its denial of Harrison’s motion to withdraw
his guilty plea:
I appreciate what you are saying, but as I stated in my written
orders, you were here in August. I asked you if you were guilty.
You said you were, I asked you if you were being coerced. You said
you weren't. And I have to accept that. And so that is why I denied
your motion to withdraw your plea . . .
There is evidence certainly that I have before me that is in the
presentence reports that certainly indicates your guilt, along with
the other co-[d]efendants that have pled guilty, so I am not sure
what is driving your insistence that after you came in here and
said your were guilty under oath . . . I don't know what is driving
that, and I guess it doesn't really matter. But I am denying the
motion to withdraw the plea of guilty . . .
. . . [Y]ou will be entitled to raise an ineffective assistance of
counsel claim. I do not know what happened here. I know [your
attorney]. He comes into this court regularly. He is one of the best
lawyers in town, and you just have to understand and face that.
Like I say, I don't know what happened. You are entitled to raise
your claim, as [the government] pointed out. We will deal with that
when the time comes. But that is part of what is going on here that
I don't quite understand where you are coming from with your
allegations that you are making, but you are entitled, of course, to
make them. 20
The district court accepted Harrison’s plea agreement and sentenced him
to eighty-four months of imprisonment and three years of supervised release.
19 Id. at 326. Harrison further indicated “[t]here is information that was forwarded to
the government [on the morning of the sentencing hearing], concerning that [exonerating]
information.”
Id. The record on appeal contains no such information.
20 Id. at 328-29, 332-33.
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It also ordered Harrison to pay $868,907.10 in restitution and a $100 special
assessment. Harrison timely appealed his conviction to challenge the district
court’s refusal to hold an evidentiary hearing on his motion to withdraw.
II.
We must first determine whether the waiver provision contained in
Harrison’s plea agreement bars this appeal. The government contends that we
need not consider Harrison’s arguments because Harrison did not specifically
preserve his right to appeal the district court’s refusal to hold an evidentiary
hearing on his motion to withdraw. As this issue involves a question of law, we
review de novo. 21 The right to appeal a criminal conviction is not a
constitutional one, but rather “a creature of statute.” 22 A defendant may waive
his right to appeal as part of a plea agreement only if such waiver is knowing
and voluntary. 23 In considering the validity of an appeal waiver, we conduct a
two-step inquiry: (1) whether the waiver was knowing and voluntary, and (2)
whether, under the plain language of the agreement, the waiver applies to the
circumstances at issue. 24 We apply “ordinary principles of contract
interpretation, construing waivers narrowly and against the [g]overnment.” 25
Although Harrison’s plea agreement contains an unambiguous waiver of
his right to appeal from his conviction and sentence, he alleges that his
ratification of the plea agreement was involuntary due to its coercive nature.
Moreover, the plain language of the waiver provision expressly reserves to
Harrison the right to challenge the voluntariness of his plea or the waiver
provision and the right to bring a claim of ineffective assistance of counsel.
Harrison urges that his appeal of the district court’s refusal to hold an
21 United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014).
22 Abney v. United States, 431 U.S. 651, 656 (1977).
23 United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
24 United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (citation omitted).
25 Keele, 755 F.3d at 754.
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evidentiary hearing on his motion to withdraw is derivative of his claims that
his plea was involuntary and that he received ineffective assistance of counsel.
We agree, and we have previously allowed appeals despite similar waivers of
appeal where defendants have asserted claims of coercion and ineffective
assistance of counsel. 26 Therefore, Harrison may raise his challenge to the
district court’s refusal to hold an evidentiary hearing on his motion to
withdraw.
III.
A criminal defendant does not have an absolute right to withdraw a
guilty plea. 27 Rather, a defendant may withdraw a guilty plea after the court
has accepted it, but prior to sentencing, only if he “can show a fair and just
reason for requesting the withdrawal.” 28 In determining whether a defendant
has shown a fair and just reason, the Fifth Circuit applies the seven-factor test
set forth in United States v. Carr. 29 A district court must consider whether: (1)
the defendant asserted his innocence; (2) withdrawal would cause the
government to suffer prejudice; (3) the defendant delayed in filing the motion;
(4) withdrawal would substantially inconvenience the court; (5) close
assistance of counsel was available; (6) the original plea was knowing and
voluntary; and (7) withdrawal would waste judicial resources. 30 A district court
need not make findings as to each factor, but should make its decision based
26 See United States v. Ray, 543 F. App’x 469, 469-70 (5th Cir. 2013) (unpublished)
(allowing appeal where defendant asserted involuntariness of waiver); United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (allowing appeal where defendant asserted
ineffective assistance of counsel).
27 United States v. Lampazianie, 251 F.3d 519, 523-24 (5th Cir. 2001).
28 FED. R. CRIM. PRO. 11(d)(2)(B); see Matthew v. Johnson, 201 F.3d 353, 366 (5th Cir.
2000) (noting that when a defendant “state[s] at his hearing that his plea [is] freely and
voluntarily made, and that he underst[ands] the nature of the charges against him and the
nature of the constitutional rights he [is] waiving[, t]hese statements act to create a
presumption that in fact the plea is valid”).
29 740 F.2d 339, 343-44 (5th Cir. 1984).
30 Id.
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on “the totality of the circumstances.” 31 The court should also consider, where
applicable, the reasons why defenses advanced later were not proffered at the
time of the original pleading and the reasons why a defendant delayed in
making his withdrawal motion. 32 Finally, the burden of establishing a fair and
just reason for requesting withdrawal under Carr “rests with the defendant.” 33
Neither is a criminal defendant automatically entitled to an evidentiary
hearing on a motion to withdraw his guilty plea. 34 “A hearing is required,”
however, “when the defendant alleges sufficient facts which, if proven, would
justify relief [under Carr].” 35 We review a district court’s decision not to hold
an evidentiary hearing for abuse of discretion. 36 “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” 37
IV.
Although Harrison made several allegations in support of his
withdrawal motion, we cannot conclude, even if all were proven to be true, that
“the totality of the Carr factors [would] clearly tip in [Harrison’s] favor to
justify relief.” 38 The district court therefore did not abuse its discretion in
declining to hold an evidentiary hearing.
A.
Harrison made three factual allegations relevant here. First, he asserted
his actual innocence, which implicates Carr’s first factor. He alleged, five
31 United States v. Hughes, 726 F.3d 656, 662 (5th Cir. 2013) (citation omitted).
32 Carr, 740 F.2d at 344.
33 United States v. Brewster, 137 F.3d 853, 858 (5th Cir. 1998) (citation omitted).
34 United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
35 Id. (citation omitted).
36
Id.
37 United States v. Urias-Marrufo,
744 F.3d 361, 364 (5th Cir. 2014) (internal
quotation marks and citation omitted).
38 See Powell, 354 F.3d at 371.
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weeks after entering his guilty plea, that he had no involvement in the scheme.
As the district court correctly noted in its order denying Harrison’s initial
withdrawal motion, a defendant’s assertion of actual innocence alone, without
supporting evidence, is insufficient to warrant allowing withdrawal under
Carr. 39 In response, six weeks later and eleven weeks after entering his guilty
plea, Harrison filed a motion to reconsider and attached two statements, one
from a codefendant indicating that Harrison “did not participate nor did he
gain financially in any way” from the scheme, 40 and one from Harrison’s sister
indicating that Harrison had resigned from TOTR before the scheme took
place. 41 Harrison also attached a sworn affidavit refuting the facts contained
in the factual resume he signed and indicating he had no involvement with the
scheme.
The statement from Harrison’s codefendant merely asserts Harrison’s
innocence of the charge to which Harrison pled guilty. Like Harrison’s initial
assertion, this claim alone would not suffice to overturn the district court’s
reasoned denial of his withdrawal motion. “Otherwise, the mere assertion of
legal innocence would always be a sufficient condition for withdrawal, and
withdrawal would effectively be an automatic right.” 42
Neither would the statement from Harrison’s sister suffice. Notably, it
does not indicate that Harrison did not participate in the scheme. It indicates
only that Harrison “did not have access to the building [or] office at [TOTR]”
39 United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996) (“[A] contrary rule would
grant the defendant an [i]nappropriate ability to reverse his decision to plead guilty.”); see
United States v. London,
568 F.3d 553, 563 (5th Cir. 2009) (finding no error in denying a
withdrawal motion under Carr where the defendant “blankly asserted his innocence,
providing no facts to support [his] change of heart”).
40 This first unsworn statement reads, in its totality: “To Whom It May Concern:
Emanuel Harrison did not participate nor did he gain financially in any way in the scheme
that occurred in 2009 at Tax on the Run. Fread Jenkins [signature].” R. at 362.
41 Id. at 362-63.
42 United States v. Carr,
740 F.2d 339, 344 (5th Cir. 1984).
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during the time the scheme took place. This allegation, even if proven, would
not be inconsistent with Harrison’s guilt. Harrison could have knowingly
participated in the scheme even having resigned from his position with TOTR
and having been without access to the TOTR facilities. Harrison’s PSR details,
inter alia, that he met taxpayer-clients in the parking lot of TOTR or in other
parking lots, drove them to check cashing locations or followed in a separate
vehicle, and kept files and documents related to the scheme in his car. 43 None
of these actions would require TOTR’s employment of Harrison or Harrison’s
access to the TOTR facilities.
Neither would Harrison’s own sworn affidavit suffice. The allegations he
makes add little to his assertion of innocence beyond reiterating his claim and
denying the veracity of the factual resume he signed in conjunction with his
plea agreement. Granted, if proven to be true, these allegations would lend
support to Harrison’s assertion. But even so, we cannot conclude under the
totality of the Carr factors discussed herein that the district court erred in
determining that Harrison had not met his burden.
B.
Second, Harrison asserted his plea was involuntary due to the coercive
nature of the plea bargaining process, which implicates Carr’s sixth factor. He
alleged for the first time in a statement at his sentencing hearing that he was
pressured to agree to a package plea deal that would spare his brothers from
the possibility of receiving longer sentences. We must take “special care” in
reviewing the voluntariness of “guilty pleas made in consideration of lenient
43 Rawle at 376-77.
12
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treatment as against third persons,” 44 often referred to as “package” plea
deals. 45 But there is no indication that such a bargain existed here.
Harrison offers no elaboration or discussion of this allegation on appeal
other than to quote at length from the transcript of his sentencing hearing and
to vaguely refer to “the conditions of the plea bargain agreement.” 46 Having
scoured the record and the transcripts of Harrison’s plea colloquy and
sentencing hearing, we find absolutely no evidence supporting the existence of
such a condition, much less the existence of coercion. Harrison and his counsel
signed a plea agreement that did not contain a bilateral condition regarding
his codefendant brothers, nor did it make any mention of his codefendants.
Harrison and his counsel then signed a plea agreement supplement indicating
that there were no additional terms to his plea agreement. When asked by the
district court during his rearraignement whether he was pleading guilty
“freely and voluntarily” and whether anyone had “tried to force [him] or
threaten [him] or coerce [him] in any way,” Harrison declared—under oath—
in open court that he had not been coerced, that he was pleading guilty
voluntarily, and that he was fully informed of the rights he was waiving. 47
Again, even if we were to go against all of the available evidence and count as
true Harrison’s vague assertion, we cannot conclude that it tips the totality of
the Carr factors in Harrison’s favor.
44 See United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (internal quotation
marks and citation omitted).
45 See United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir. 2001).
46 Appellant’s Brief at 8, 10.
47 Rawle at 310-12. “Solemn declarations in open court carry a strong presumption of
verity.”
Lampazianie, 251 F.3d at 524 (quoting Blackledge v. Allison,
431 U.S. 63, 74 (1977)).
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C.
Third, Harrison asserted a claim of ineffective assistance of counsel,
which implicates Carr’s fifth factor. He alleged that counsel erroneously
advised him to enter the plea agreement because counsel suggested he would
be prejudiced by a prior sexual assault conviction. He also alleged that counsel
did not investigate or discover certain exonerating evidence related to “the true
identi[ty] of Chris Smith,” presumably referring to one of the aliases listed for
Harrison in the indictments. Although Harrison alleged he had forwarded
exonerating evidence “to the [g]overnment,” the record contains no evidence in
support of this allegation. Harrison submits no legal standard, no facts, and no
discussion regarding these arguments on appeal. He has therefore waived
them. 48 But even counting Harrison’s factual allegations as true, and assuming
he had articulated a claim of ineffective assistance of counsel under the
appropriate standard set out in Strickland v. Washington, 49 we cannot
conclude—in light of the record and Strickland’s high bar 50—that Harrison
would have satisfied his burden under Carr.
48 Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”) (citing
FED. R. APP. P. 28(a)(9)(A)) (other citations omitted).
49 466 U.S. 668 (1984). In his brief on appeal, Harrison does not mention Strickland
or any of Strickland’s progeny.
50 Id. at 687 (“A convicted defendant's claim that counsel's assistance was so defective
as to require reversal of a conviction or death sentence has two components. First, the
defendant must show that counsel's performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.”).
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D.
Finally, relevant to Carr’s third factor, Harrison did not file his
withdrawal motion until more than five weeks after pleading guilty, and he
did not file the three supporting documents attached to his motion to
reconsider until six weeks later. Although the district court made no finding
regarding Carr’s third factor, we cannot conclude that it weighs in Harrison’s
favor because these motions and documents were not promptly filed. 51
V.
Based on the foregoing, combined with the findings and reasons stated
in the district court’s order denying Harrison’s initial withdrawal motion,
Harrison has not alleged sufficient facts to establish, under the totality of the
Carr factors, that the district court abused its discretion in declining to hold
an evidentiary hearing. We see no legal errors or clearly erroneous factual
findings in the district court’s decision. AFFIRMED.
51 Carr, 740 F.2d at 345 (finding a motion was not promptly filed due to a twenty-two-
day delay, and noting that “[t]he rationale for allowing a defendant to withdraw a guilty plea
is to permit him to undo a plea that was unknowingly made at the time it was entered. The
purpose is 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”).
15
