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United States v. Palmer-Tate

United States District Court, N.D. Indiana, Fort Wayne Division

April 9, 2018

UNITED STATES OF AMERICA
v.
MARKELL PALMER-TATE

          REPORT AND RECOMMENDATION

          SUSAN COLLINS UNITED STATES MAGISTRATE JUDGE

         Before the Court are two handwritten motions filed by Defendant Markell Palmer-Tate pro se, seeking to withdraw his Plea Agreement. (DE 160; DE 165). The motions were referred to the undersigned Magistrate Judge by Chief Judge Theresa L. Springmann on February 14, 2018, to conduct any necessary hearings and to issue a report and recommendation that includes proposed findings of fact and recommendations for the disposition of the motions. (DE 172).

         After the government filed a response brief to the motions (DE 178), I held a hearing on the motions on March 12, 2018 (DE 181), at which Defendant appeared with counsel. For the following reasons, and as discussed at the hearing, I RECOMMEND that Defendant's motions to withdraw his Plea Agreement (DE 160; DE 165) be DENIED.

         A. Findings of Fact

         1. Procedural Background

         On November 18, 2016, Defendant was charged in a single-count Superseding Indictment with attempted bank robbery by force or violence involving kidnaping during a bank robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 2113(a), (d), and (e), and 18 U.S.C. § 2. (DE 33). On December 5, 2016, Defendant appeared before me and entered a plea of not guilty to the charge. (DE 54).

         On July 21, 2017, the government filed a Plea Agreement (“the Plea Agreement”) entered into by Defendant and the government. (DE 91). On July 31, 2017, Defendant appeared with his court-appointed counsel, Thomas O'Malley, before me at a change of plea hearing under Federal Rule of Criminal Procedure 11, and Defendant entered a plea of guilty pursuant to the Plea Agreement. (DE 95). I then entered Findings and Recommendation of the Magistrate Judge Upon a Plea of Guilty after the hearing. (DE 96). On August 18, 2017, after Defendant waived any objection, Chief Judge Springmann entered an Order Accepting Findings and Recommendation, adopting them in their entirety and accepting Defendant's plea of guilty to the offense charged in the single-count Superseding Indictment. (DE 101).

         On October 25, 2017, Attorney O'Malley filed a motion to withdraw his representation, stating that Defendant had asked counsel to withdraw and that Defendant believed that the attorney-client relationship had broken down and was irreparable. (DE 121). After a hearing on the motion, I granted the motion to withdraw, and Attorney Patrick Arata was appointed to represent Defendant, filing an appearance on November 2, 2017. (DE 126-DE 132).

         On November 13, 2017, the probation officer filed a draft of the pre-sentence investigation report. (DE 135). On December 29, 2017, Defendant filed a “notice of no objection” to the pre-sentence investigation report. (DE 150).

         On January 26, 2018, six months after the change of plea hearing, Defendant filed pro se his first “Motion to Withdraw Plea Agreement for Ineffective Counsel.” (DE 160). Several days later, Defendant filed pro se another “Motion to Withdraw[] from Plea Agreement by Ineffective Counsel” (DE 165), together with a letter complaining about his counsel (DE 163) and a “Motion to File Objections [T]owards Pre-Sentence Report” (DE 164). The next day, Attorney Arata filed a motion to withdraw his representation of Defendant. (DE 167). Chief Judge Springmann referred Defendant's two motions to withdraw his Plea Agreement to me on February 14, 2018. (DE 172).

         On March 12, 2018, I held a hearing on Defendant's motions to withdraw his Plea Agreement, as well as on Attorney Arata's motion to withdraw representation. (DE 181). The motion to withdraw representation, however, was not taken up until after oral argument on Defendant's motions to withdraw his Plea Agreement were concluded, as Defendant stated that he wanted counsel's assistance during that portion of the hearing. The motion to withdraw representation was granted at the conclusion of the hearing (DE 181), new counsel was appointed for Defendant (DE 182; DE 183), and Attorney Robert Gevers filed an appearance on Defendant's behalf on March 26, 2018 (DE 184).

         2. Defendant's Arguments

         Attorney Arata met with Defendant twice about Defendant's desire to withdraw his guilty plea. At the first visit, counsel advised Defendant that he could not withdraw his plea, and counsel explained his reasons for advising Defendant so. At the second visit, counsel brought Defendant three recent cases concerning a defendant's inability to withdraw a guilty plea, and counsel explained that he would not file a frivolous motion on Defendant's behalf. Attorney Arata reported that Defendant did not want to listen to his advice and sent him insulting letters.

         I then asked Defendant if he wanted to speak to the motions himself. Defendant presented argument but no evidence. Defendant argued that he did not think he had been represented effectively by counsel because his counsel (both Attorney O'Malley and Attorney Arata) would not do what Defendant thought should be done, because Attorney O'Malley purportedly gave him false information under the sentencing guidelines and pushed him to sign the Plea Agreement, and because Defendant felt as if he had no choice but to sign the Plea Agreement. Defendant stated that after he signed the Plea Agreement, he went through his case on his own and found things that he thinks will “help him out” that were not brought to his attention by counsel. Defendant further argued that he had three different plea agreements, that he was under distress, and that he did not understand at the time the sentencing consequences of the Plea Agreement that he signed. Defendant claimed that the offense level and enhancements that he pled to during the plea hearing were “totally different” than what he was told he would be pleading to.

         3. The ...


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