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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

CALVIN LEE GODDARD,

 Defendant-Appellant.

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No. 09-5120

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.

_________________

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.

_________________

OPINION

_________________

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

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.

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
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

2

According to the PSR, Goddard reported earning bachelors, masters, and doctorate degrees in

theology.

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.
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 pleawithdrawal 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

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.

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
No. 09-5120 United States v. Goddard Page 11

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.

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
No. 09-5120 United States v. Goddard Page 12

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.

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.