In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1168

United States of America,

Plaintiff-Appellee,

v.

Christopher M. Hodges,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 99 CR 40038--Joe B. McDade, Chief Judge. 

Argued November 6, 2000--Decided July 30, 2001

 Before Kanne, Diane P. Wood, and Williams,

Circuit Judges.

 Williams, Circuit Judge. Christopher

Hodges pled guilty to conspiracy to

possess with intent to distribute crack

cocaine. After further reflection, Hodges

decided to assert his innocence, withdraw

his plea, and proceed to trial. The

district court, however, rejected his

attempt to withdraw his plea, and Hodges

now appeals that denial. Additionally, he

claims that he received ineffective

assistance of counsel in violation of the

Sixth Amendment. We reject both claims,

and affirm.

I

 Hodges was indicted by a federal grand

jury, on April 22, 1999, for conspiracy

to possess with intent to distribute

cocaine base ("crack cocaine") in

violation of 21 U.S.C. sec.sec. 841(a)(1)

and 846. After initially pleading not

guilty at his arraignment, Hodges decided

to meet with the government to discuss an

agreement for his cooperation. On July 8,

1999, he signed a written proffer

agreement and after discussions with the

government, signed a plea agreement,

agreeing to plead guilty that same day.

During his change of plea hearing, the

district court conducted an extensive and

thorough Rule 11 colloquy, discussing,

among other things, the offense, the
consequences of a guilty plea, and the

sentencing guidelines process. At the

conclusion of the Rule 11 colloquy,

Hodges pled guilty.

 On July 27, 1999, Hodges met with a

probation officer for the purpose of

preparing the presentence report ("PSR").

Hodges’ attorney, Gary Koos ("Koos"), did

not attend the meeting, but told Hodges

not to discuss, and requested that the

probation officer not discuss, the facts

of the offense. Rejecting Koos’ advice,

Hodges discussed the facts of the offense

(in several statements unsolicited by the

probation officer), denying that he sold

crack cocaine and accusing one of the

government witnesses of lying. Both

statements were noted by the probation

officer. 

 Six days later, on August 2, 1999,

Hodges wrote Koos asking him to withdraw

his guilty plea. However, Koos did not

read the letter, because it was

"inadvertently" placed into Hodges’ file

before he had an opportunity to read it.

The PSR was issued on September 3, 1999,

and on September 20, 1999, when Koos went

to see Hodges to discuss the report, he

found and for the first time read Hodges’

request to withdraw his guilty plea.

Upset over Koos’ failure to return his

calls and file the withdrawal motion,

Hodges refused to talk with Koos. 

 Two days later, Hodges sought to have

new counsel appointed, but at a status

hearing on October 8, 1999, he withdrew

that request, and Koos notified the court

of Hodges’ intent to file a motion to

withdraw his guilty plea. His motion,

filed on October 18, 1999, asserted his

innocence and accused the government

witnesses of lying concerning his

involvement. Relying on the Rule 11

colloquy, the district court denied

Hodges’ motion, finding his allegations

conclusory and insufficient to support an

evidentiary hearing, and concluding that

no fair and just reason had been

presented to warrant a withdrawal./1

 At sentencing, on January 7, 2000,

Hodges objected to several parts of the

PSR and took the stand to testify. In his

testimony, he maintained his innocence

and for a third time accused the

government witnesses of lying concerning

his involvement. The government presented
its witnesses Brooks Ezell Turner, III

and Darrius Martin who testified

concerning drug transactions with Hodges

and Hodges’ involvement with Charles

Davis in the distribution of crack

cocaine. On the basis of Hodges’

statements in the PSR interview in July,

the district court denied Hodges an

offense level reduction under the

sentencing guidelines for acceptance of

responsibility and on the basis of his

testimony at the sentencing hearing,

increased his offense level for

obstruction of justice. Hodges was

sentenced to 360 months in prison. He now

appeals.

II

A

 We address Hodges’ ineffective

assistance of counsel claim first. The

Sixth Amendment right of a criminal

defendant "to have the Assistance of

Counsel for his defence," U.S. Const.

amend. VI, guarantees not just

assistance, but also a constitutionally

mandated level of adequate legal

assistance. Strickland v. Washington, 466

U.S. 668, 686-87 (1984). Reviewing

adequacy, courts must measure counsel’s

performance against an objective standard

of reasonableness, with a highly

deferential presumption in favor of the

reasonable exercise of professional

judgment. Id. at 687-90. Defendants must

"identify the acts or omissions of

counsel" that are unreasonable, and

courts must then "determine whether, in

light of all the circumstances, the

identified acts or omissions were outside

the wide range of professionally

competent assistance." Id. at 690. To

prevail, defendants must also show

prejudice as a result of inadequate

assistance. Id. at 687.

 Although Hodges is not short on

criticisms of his trial counsel’s

performance, he is well short of

demonstrating the level of deficiency

that makes an ineffective assistance of

counsel claim./2 Hodges alleges that

Koos (1) failed to attend his PSR

interview; (2) failed to file promptly

his motion to withdraw his guilty plea or

return his phone calls; (3) failed to

provide meaningful advice on and analysis

of his plea agreement or plea colloquy;
(4) failed to inform him of the likely

sentence he would receive; and (5)

requested a continuance of the trial over

his objection. Basically, Hodges asserts

that Koos may as well have not been there

at all./3 That is to say, he attempts

to demonstrate that he was abandoned. In

an abandonment claim, prejudice is

presumed. United States v. Cronic, 466

U.S. 648, 658-60 (1984); Patrasso v.

Nelson, 121 F.3d 297, 304 (7th Cir.

1997); see also United States v. O’Leary,

856 F.2d 1011, 1015 (7th Cir. 1988) ("The

Sixth Amendment right to counsel, of

course, guarantees more than just a warm

body to stand next to the accused during

critical stages of the proceedings; an

accused is entitled to an attorney who

plays a role necessary to ensure that the

proceedings are fair.").

 But Hodges has one fatal problem, which

follows him throughout our analysis:

Hodges has no credible evidence, only his

own unsupported allegations, which are

inadequate. In addition to presenting no

credible evidence to support his

allegations, the record contradicts him

at almost every turn. Taking his

allegations in reverse order, Hodges

himself agreed to Koos’ request for a

continuance of the trial at the status

hearing on June 22, 1999, where after re

ceiving counseling by the district court

on the matter, Hodges stated, "whenever

[Koos] wants I guess is fine with me,

Your Honor." More to the point, Koos

requested a continuance to better prepare

for trial. It seems peculiar, then, that

such conduct, without more, could be the

basis of an ineffective assistance of

counsel claim.

 More serious are Hodges’ allegations

that Koos failed to provide him with an

analysis and explanation of the offered

plea agreement or plea colloquy, or an

accurate prediction of a sentence. See

United States v. Barnes, 83 F.3d 934,

939, 939-40 (7th Cir. 1996) ("When a

defendant considers the government’s

offer of a plea agreement, a reasonably

competent counsel will attempt to learn

all of the facts of the case and to make

an estimate of a likely sentence. Before

he allows his client to plead guilty, the

attorney must also communicate the

results of his analysis of the case.")

(citations omitted). But we have no

credible evidence that Hodges’
allegations are in fact true. We do have

evidence, from Hodges’ Rule 11 colloquy,

that he responded affirmatively to all

the following questions asked by Chief

Judge McDade, 

Have you had occasion to discuss

this charge and the case in

general, including any possible

defenses you might have, with

your attorney?

Are you satisfied with the advice

and representation given you in

this matter by your attorney? 

Before signing the plea

agreement, did you read through

the plea agreement and discuss

the terms of the plea agreement

with your attorney?

Are you satisfied that you fully

understand the plea agreement and

all of its terms?

Does it fairly and accurately and

completely set forth all

agreements and understandings you

have with the Government about

this charge against you? 

and negatively to the following question,

Do you have any complaints about

your attorney’s services that you

wish to bring to my attention at

this time?

We are hard-pressed to find any evidence

of substandard performance.

 Hodges, however, relies on the short

time between the time he and Koos were

first presented with the plea agreement

the day they met with the government and

his guilty plea some time later that day.

In addition, Hodges wrote a letter to the

district court, in which he makes some of

the same claims he presents here--that

Koos stated he would only receive a 188

month sentence and encouraged him to take

the deal, stating that he (meaning Koos)

had never won a case in federal court.

But this is a long way from the type of

credible evidence to support the

misconduct Hodges alleges. 

 An ineffective assistance of counsel

claim cannot stand on a blank record,
peppered with the defendant’s own

unsupported allegations of misconduct.

Hodges’ claims may in fact be true; we

fault him not for making the allegations,

but for his failure to support them. 

 Hodges also alleges that Koos failed to

return his phone calls and filed his

motion to withdraw his guilty plea late.

But, Hodges recanted any concerns with

Koos’ failure to return his phone calls.

At the motion hearing on October 9, 1999,

when given an opportunity to express his

concerns with Koos’ performance, on his

own request to replace counsel, Hodges

stated "there’s been some differences,

but it’s really not--. . . . Mr. Koos has

talked to me, you know what I’m saying, I

should have understood. . . . I still

want him as my counsel, Your Honor." That

is the only evidence in the record on the

matter. 

 And, although it is undisputed that Koos

filed Hodges’ motion to withdraw his

guilty plea significantly later than

Hodges had requested, this failure was

ultimately harmless, and considering the

circumstances his performance was hardly

inadequate. Hodges’ motion was filed,

though late, and Koos made every effort

to make the district court aware that the

failure to file earlier was entirely his

fault. In addition, the district court’s

denial of the motion did not appear to be

influenced by the delay; the district

court never mentioned it in its decision.

 Last, that Koos did not attend Hodges’

PSR interview does not reveal any

inadequacy in Koos’ performance. PSR

interviews are not critical stages in the

proceedings where the presence of an

attorney is required, cf. United States

v. Kinsey, 917 F.2d 181, 183 (5th Cir.

1990) ("Reasoning that a presentencing

interview is not a critical stage of the

proceedings, this circuit has refused to

recognize a right to counsel during a

defendant’s presentencing interview with

a probation officer."), and the absence

of an attorney in such interviews is not

uncommon. We believe, absent peculiar

facts that would suggest otherwise, the

decision whether to attend is better left

to the discretion of the attorney.

Moreover, we see no reason why Koos’

decision was inappropriate. 

 Finally, taking Hodges’ allegations as
a whole, we do not believe that Koos

abandoned Hodges, or that his performance

was so inadequate that it was as if no

assistance was provided. Quite the

opposite, all the evidence (beside

Hodges’ unsupported allegations) reveals

Koos was present, effective, and even

satisfactory to Hodges. That Hodges was

satisfied is not decisive; what counts is

whether there is evidence to conclude

that Koos was ineffective. Here, there is

none. Therefore we reject Hodges’

ineffective assistance of counsel claim.

B

 Turning to the next issue, withdrawal of

a guilty plea, Rule 32(e) of the Federal

Rules of Criminal Procedure provides that

a defendant may withdraw a guilty plea on

a showing of "any fair and just reason."

Id. Rule 32(e), however, is not a freeswinging backdoor. Defendants do not have

an absolute right to withdraw their

guilty plea, United States v. McFarland,

839 F.2d 1239, 1241 (7th Cir. 1988), and

after a thorough Rule 11 colloquy,

defendants face an uphill battle in

demonstrating a fair and just reason.

United States v. Schilling, 142 F.3d 388,

398 (7th Cir. 1998); United States v.

Messino, 55 F.3d 1241, 1248 (7th Cir.

1995). The district court has the

discretion to permit the withdrawal of a

guilty plea, and we review the district

court’s decision for abuse of discretion.

United States v. Pike, 211 F.3d 385, 388

(7th Cir. 2000); United States v. Abdul,

75 F.3d 327, 329 (7th Cir. 1996). We

review the district court’s factual

findings as to whether the defendant has

demonstrated a fair and just reason for

withdrawal for clear error. United States

v. Milquette, 214 F.3d 859, 861 (7th Cir.

2000).

 As the basis for withdrawing his guilty

plea, Hodges claims that he is actually

innocent, despite his lengthy Rule 11

colloquy to the contrary. He claims that

he rushed into a plea agreement and

admission of guilt in his plea hearing,

without adequate assistance of counsel (a

claim we have rejected) and in a state of

confusion, again all contrary to his

statements in his Rule 11 colloquy.

Further, Hodges relies on his swift

recantation (three weeks later), as

evidence of his innocence. Last, he

claims that all the government witnesses
were lying concerning his involvement.

 Legal innocence has been recognized by

this circuit, and rightfully so, as a

fair and just reason to withdraw a guilty

plea. See United States v. Gomez-Orozco,

188 F.3d 422, 425 (7th Cir. 1999); United

States v. Groll, 992 F.2d 755, 758 (7th

Cir. 1993). But a defendant’s bare

protestations of innocence--especially

after a knowing and voluntary guilty plea

in a thorough Rule 11 colloquy--will not

suffice, regardless of how swiftly they

are made. The defendant must proffer some

credible evidence, Gomez-Orozco, 188 F.3d

at 425, and this defendant has proffered

none. When a defendant makes no more than

naked claims of innocence, a court need

not allow the defendant to withdraw his

guilty plea nor allow the defendant an

evidentiary hearing. United States v.

Redig, 27 F.3d 277, 280 (7th Cir. 1994).

We therefore find no clear error in the

district court’s factual findings, which

relied on the Rule 11 colloquy, and no

abuse of discretion in the district

court’s decision not to allow Hodges to

withdraw his guilty plea.

III

 For the foregoing reasons, the judgment

of the district court is Affirmed.

FOOTNOTES

/1 A second motion to withdraw the guilty plea was

filed on November 15, 1999, alleging that the

plea agreement was null and void. That motion was

also denied and is not at issue in this appeal.

/2 For reasons that will become apparent in the

text, we are reluctant to hear, and ordinarily do

not hear, claims of ineffective assistance of

counsel on direct appeal. We will, however, hear

such appeals when the defendant is represented by

a different attorney on appeal and the claim

rests on the trial record alone, if therecord is

complete enough for us to address the claim.

United States v. Martinez, 169 F.3d 1049, 1052

(1999).

/3 The government asserts that this argument has

been waived by Hodges’ plea agreement. But a

valid appellate waiver contained in a plea agreement does not preclude a defendant’s claim that

the plea agreement itself was the product of

ineffective assistance of counsel. Jones v.

United States, 167 F.3d 1142, 1144-45 (7th Cir.
1999).