WHITE v. USA

Filing 60

Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255 And Denying Certificate of Appealability - Petitioner Bruce White brought this action pro se pursuant to 28 U.S.C. § 2255. In his § 2255 motion he raised two ineffective-a ssistance-of-counsel claims and a claim pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). The Court denied his Johnson claim and set his two ineffective-assistance-of-counsel claims for a hearing. Mr. White was appointed counsel to rep resent him at the hearing. Mr. White abandoned one of his two remaining claims and proceeded at the hearing only with the following claim: whether his trial counsel, Gwendolyn Beitz, provided ineffective assistance by failing to move to withdraw M r. White's guilty plea. For the reasons explained below, the Court concludes that Ms. Beitz did not provide ineffective assistance in failing to move to withdraw the guilty plea, and thus Mr. White's § 2255 motion is denied. Mr. Whi te's motion to vacate under 28 U.S.C. § 2255 is denied for the reasons explained above. Judgment consistent with this Entry shall now issue. This Entry shall also be entered on the docket in the underlying criminal action, No. 1:13-cr-00 051-JMS-TAB-1. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show that reasonable jurists would fin d it "debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 2/16/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRUCE WHITE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:14-cv-01615-JMS-DML

Entry Denying Motion for Relief Pursuant to 28 U.S.C. § 2255
And Denying Certificate of Appealability
Petitioner Bruce White brought this action pro se pursuant to 28 U.S.C. § 2255. In his
§ 2255 motion he raised two ineffective-assistance-of-counsel claims and a claim pursuant to
Johnson v. United States, 135 S. Ct. 2551 (2015). The Court denied his Johnson claim and set his
two ineffective-assistance-of-counsel claims for a hearing. Mr. White was appointed counsel to
represent him at the hearing. Mr. White abandoned one of his two remaining claims and proceeded
at the hearing only with the following claim: whether his trial counsel, Gwendolyn Beitz, provided
ineffective assistance by failing to move to withdraw Mr. White’s guilty plea. For the reasons
explained below, the Court concludes that Ms. Beitz did not provide ineffective assistance in
failing to move to withdraw the guilty plea, and thus Mr. White’s § 2255 motion is denied.
I.
Findings of Fact
The following are the Court’s findings of fact. They are drawn from the credible evidence
presented at the hearing and the undisputed evidence previously submitted by the parties and on
the Court’s docket.

Ms. Beitz represented Mr. White in criminal proceedings before this Court in Case No.
1:13-cr-00051-JMS-TAB-1. He was charged with controlled substance violations and being a
felon in possession of a firearm in an indictment dated March 13, 2013.
In a letter dated May 22, 2013, Mr. White wrote a letter to the Court requesting that Ms.
Beitz be removed as his attorney. The Magistrate Judge held a hearing regarding the letter on June
4, 2013, during which both Mr. White and Ms. Beitz were present. At the hearing, Mr. White
expressed various concerns to the Magistrate Judge regarding Ms. Beitz’s representation of him,
including that he believed she was too busy and that he had yet to see the Government’s video
evidence purporting to show him engaging in the charged conduct. Prior to that hearing, Ms. Beitz
had viewed the video evidence and described it to Mr. White. The Magistrate Judge denied Mr.
White’s request for new counsel, and thus Ms. Beitz continued to represent Mr. White.
Later in June 2013, Ms. Beitz presented Mr. White with multiple plea offers from the
Government. A three-count susperseding indictment was filed on June 19, 2013. Two days later,
on June 21, Mr. White petitioned to enter a plea of guilty and signed a Plea Agreement. See No.
1:13-cr-00051-JMS-TAB, Dkt. 42. In the Plea Agreement, Mr. White agreed to plead guilty to
Count Two of the superseding indictment, which charged him with distribution of cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The Government agreed to move to dismiss
Counts One and Three at sentencing, which charged him with being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) and another controlled substance violation.
The Plea Agreement was governed by Rule 11(c) and that the parties agreed that, should the Court
accept the Plea Agreement, Mr. White would be sentenced to 180 months’ imprisonment. The
parties also stipulated that Mr. White was a Career Offender under United States Sentencing
Guideline § 4B1.1(b)(3).

A change of plea hearing was held that same day. Mr. White was placed under oath and
questioned by the Court as to whether he understood the rights he would relinquish by pleading
guilty to Count Two of the indictment. The Court concluded that Mr. White fully understood the
rights he was relinquishing; that his plea was knowing and voluntary; and that the plea was
supported by an independent factual basis as to each essential element of the offense.
Immediately after the change of plea hearing, Mr. White met with an investigator from the
Federal Community Defenders Office to review the Government’s video evidence. Mr. White
wanted to withdraw his guilty plea after watching the three videos. He did not, however,
communicate that to Ms. Beitz at that time.
Approximately three months later, on September 16, 2013, Mr. White wrote a letter to the
Court. The Court forwarded the letter, unread, to Ms. Beitz since she continued to represent him.
This letter was admitted as an exhibit at the hearing in this action. In the letter, Mr. White stated
that he wanted to withdraw his guilty plea and remove Ms. Beitz as his counsel.
Ms. Beitz spoke with Mr. White regarding, among other things, the contents of his letter
during three fifteen-minute phone calls on November 14, 2013. Several factors led Mr. White to
express a desire to withdraw his plea: he was frustrated with his current place of incarceration; he
was concerned about his mother’s health; and he questioned the credibility of the confidential
informant and impact the video evidence would have at a trial.
Ms. Beitz discussed these concerns with him and advised him not to move to withdraw his
plea. First, she explained to him that he was presented with a unique and favorable opportunity
by the Government to plead guilty to either the firearm charge or a controlled substance charge.
If he plead guilty to the firearm charge he would qualify as an Armed Career Criminal, but if he
plead guilty to the controlled substance charge, he would be sentenced under the Sentencing

Guidelines as a Career Offender. It was important to Mr. White to qualify for the Residential Drug
Abuse Program (“RDAP”), which would allow him the opportunity for a sentence reduction. But
he would not qualify for RDAP if he plead to the firearm charge. This is why Mr. White chose to
plead guilty to the controlled substance offense. Ms. Beitz explained to him that he could lose this
beneficial Plea Agreement if Mr. White moved to withdraw the plea, including the dismissal of
the firearm charge, which would place his eligibility for RDAP in jeopardy. She made clear that
he would also lose the three-point benefit to his Sentencing Guideline offense level for acceptance
of responsibility if he proceeded to trial. Finally, she explained that based on the evidence against
him it was not in his best interest to proceed to trial and, in any event, there was no guarantee that
the Court would even permit him to withdraw his plea.
Had Mr. White persisted in his request to withdraw his guilty plea, Ms. Beitz would have
pursued that course with the Court. But because of their conversation, Mr. White agreed to move
forward toward sentencing without moving to withdraw his guilty plea. Ms. Beitz then worked on
Mr. White’s sentencing statement and otherwise prepared for sentencing.
Mr. White’s sentencing hearing was held on November 26, 2013. Mr. White testified at
the hearing in this action that he went to his sentencing hearing willingly and, during the sentencing
hearing, did not mention any desire to withdraw his plea because he did not want to lose the benefit
for acceptance of responsibility. At the sentencing hearing, Mr. White apologized for giving his
lawyer a hard time throughout the process and accepted responsibility for his conduct. Pursuant
to the Plea Agreement, the Court sentenced Mr. White to 180 months’ imprisonment.
II.
Discussion
Mr. White’s sole remaining claim is that his trial counsel, Ms. Beitz, provided ineffective
assistance by failing to move to withdraw his guilty plea. For Mr. White to establish that

“counsel’s assistance was so defective as to require reversal,” he must make two showings: (1)
that counsel rendered deficient performance that (2) prejudiced the petitioner. Strickland v.
Washington, 466 U.S. 668, 687 (1984). With respect to the performance requirement, “[t]he
proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at
688). “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Id. at 534 (quoting Strickland, 466 U.S. at 694). The Court will address each element in turn.
A.

Performance

Mr. White contends that Ms. Beitz rendered deficient performance by failing to move to
withdraw his guilty plea. But the Court concludes that Ms. Beitz’s advice and conduct regarding
whether or not to move to withdraw his guilty plea was objectively reasonable and thus not
deficient performance.
As detailed above, once Mr. White communicated to Ms. Beitz his desire to withdraw his
guilty plea in September 2013, she discussed the issue with him and her concerns about that course
during three fifteen-minute phone conversations. She explained to him that the Plea Agreement
was very favorable to him both because it led to the dismissal of two counts, including the firearm
charge, and because it permitted him qualify for a sentence reduction via the RDAP, which was
important to Mr. White. 1 Ms. Beitz also explained to him that, should he withdraw his guilty plea

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During the hearing, Ms. Beitz acknowledged that in hindsight it may have been better for Mr.
White to have plead guilty to the firearm charge and be sentenced as an Armed Career Criminal
rather than the controlled substances charge and be sentenced as a Career Offender under the
advisory Sentencing Guidelines. This is because, as an Armed Career Criminal, Mr. White may
have been entitled to relief under the Supreme Court’s subsequent decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), but Johnson did not provide any relief for those sentenced as Career
Offenders under the advisory Sentencing Guidelines. See Beckles v. United States, 137 S. Ct. 886

and proceed to trial, he would lose the three-point benefit to his offense level for acceptance of
responsibility. Lastly, she explained that based on the evidence against him it was not in his best
interest to proceed to trial and that there was no guarantee that the Court would even permit him
to withdraw his guilty plea. By the end of their conversation, Mr. White agreed that he should not
move to withdraw his guilty plea and should proceed to sentencing.
All of the foregoing advice Ms. Beitz gave to Mr. White was accurate and “reasonable[]
under prevailing professional norms.” Wiggins, 539 U.S. at 521. Ms. Beitz understandably
thought the Plea Agreement was in Mr. White’s best interest and was fulfilling her duties as his
attorney by advising him of this and explaining the basis for this advice. In some cases, part of a
defense attorney’s job is to save her client from himself, and this is what Ms. Beitz did here. She
explained to her client the potential serious consequences of withdrawing his guilty plea. Further,
she explained to him that there was no guarantee such a motion would be granted given that his
plea had already been accepted by the Court. See Fed. R. Crim. P. 11(d)(2)(B) (requiring the
defendant to “show a fair and just reason for requesting the withdrawal” of his guilty plea if the
request was made after the court accept the plea but before it imposed sentence); United States v.
Graf, 827 F.3d 581, 583 (7th Cir. 2016) (“Whether to allow withdrawal of an accepted guilty plea
is left to the sound discretion of the district court.”).
Importantly, the evidence establishes that Mr. White came to agree with Ms. Beitz advice.
Because the decision whether or not to plead guilty ultimately rests with a defendant, see Florida
v. Nixon, 543 U.S. 175, 187 (2004), it is deficient performance for a lawyer to “refuse[] to file a

(2017). While Ms. Beitz is correct, and this reality is harsh from Mr. White’s perspective, the
Court must evaluate Ms. Beitz’s “conduct from [her] perspective at the time” so as to avoid “the
distorting effects of hindsight.” Strickland, 466 U.S. at 689. Ms. Beitz could not have known in
2013 how the issues in Johnson and Beckles would have been resolved. Thus her advice regarding
which plea agreement to accept did not constitute deficient performance.

motion to withdraw [a defendant’s] plea despite a direct instruction that [s]he do so.” Ward v.
Jeninks, 613 F.3d 692, 699 (7th Cir. 2010). But Ms. Beitz made clear that she would have filed a
motion to withdraw, even despite her advice to the contrary, had Mr. White persisted in his desire
to withdraw his plea. But he did not do so. Among other things, Mr. White agreed with Ms. Beitz
that he did not want to risk losing his three-level reduction for acceptance of responsibility.
Therefore, not only was Ms. Beitz’s advice regarding moving to withdraw the guilty plea
reasonable, but once she convinced Mr. White that doing so was not a favorable course, it was
certainly reasonable for her not to move to withdraw his plea then. See id. (If, on the other hand,
it turns out that [the attorney] strongly advised [the defendant] not to withdraw the plea as a
strategic matter, but did not disregard any direct, unequivocal instructions, h[er] conduct may well
have been reasonable” under Strickland”).
For these reasons, Mr. White has failed to demonstrate that Ms. Beitz’s performance was
deficient with respect to her advice and action regarding moving to withdraw his guilty plea. Even
though his ineffective-assistance-of-counsel claim fails on this basis alone, the Court will also
address prejudice.
B.

Prejudice

To establish prejudice, Mr. White “‘must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Wiggins, 539 U.S. at 534 (quoting Strickland, 466 U.S. at 694). In the context of prejudice from
an alleged failure to move to withdraw a guilty plea, a defendant must show “that (1) there was
reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have
insisted on going to trial and (2) there was a reasonable probability that the court would have
granted his motion to withdraw his guilty plea.” Ward, 613 F.3d at 699.

Mr. White could not establish prejudice even if the Court concluded that Ms. Beitz
provided deficient performance by failing to move to withdraw his guilty plea. This is because,
even if there were a reasonable probability that Mr. White would not have insisted on going to
trial, there is not a reasonable probability that the Court would have granted Mr. White’s motion
to withdraw.
“A defendant does not have ‘an absolute right to withdraw a plea,’ United States v. Carroll,
412 F.3d 787, 792 (7th Cir. 2005), but may do so if he ‘can show a fair and just reason for
requesting the withdrawal.’ Fed. R. Crim. P. 11(d)(2)(B).” United States v. Stoller, 827 F.3d 591,
597 (7th Cir. 2016). The Seventh Circuit “has recognized three general grounds that merit
withdrawal of a guilty plea: where the defendant shows actual innocence or legal innocence, and
where the guilty plea was not knowing and voluntary.” United States v. Graf, 827 F.3d 581, 583
(7th Cir. 2016).
Mr. White has not asserted actual or legal innocence, but that his plea was involuntary. Mr.
White’s only argument that relates to whether the Court would have granted a motion to withdraw
focuses on his inability to watch the video evidence until after he plead guilty. But the lack of
opportunity to view the video evidence before the plea did not make the plea involuntary such that
the Court would have granted a motion to withdraw. This is especially true given that Ms. Beitz
had watched the videos and described them to him before he plead guilty.
The Seventh Circuit has made clear that “a defendant’s lack of knowledge about the
evidence that would be offered against him at trial does not constitute a fair and just reason for
him to withdraw his plea as long as there is a sound factual basis for the plea,” Graf, 827 F.3d at
586, and here, there was a sound factual basis for the plea. See No. 1:13-cr-00051-JMS-TAB, Dkt.
44. For this reason alone, the Court would not have granted a motion to withdraw.

Similarly, the Seventh Circuit has held that “a defendant is not entitled to withdraw his
guilty plea simply because he later discovers a weakness in the government’s ability to prove its
case at trial.” Graf, 827 F.3d at 586. Thus, although after watching the videos Mr. White testified
that he believed he discovered a weakness in the Government’s case against him—a conclusion
the Court need not assess—this does not provide a fair and just reason for the Court to grant a
motion to withdraw under Rule 11(d)(2)(B).
For these reasons, even if Ms. Beitz had moved to withdraw the guilty plea in September
2013, the Court would have denied the motion. Therefore, Mr. White was not prejudiced by any
failure on Ms. Beitz’s part to move to withdraw his plea.
III.
Conclusion
Mr. White’s motion to vacate under 28 U.S.C. § 2255 is denied for the reasons explained
above. Judgment consistent with this Entry shall now issue.
This Entry shall also be entered on the docket in the underlying criminal action, No.
1:13-cr-00051-JMS-TAB-1.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2255 Proceedings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show
that reasonable jurists would find it “debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
denies a certificate of appealability.
IT IS SO ORDERED.

Date: 2/16/2018

Distribution:
Pamela S. Domash
UNITED STATES ATTORNEY'S OFFICE (Evansville)
[e-mail]
Mario Garcia
BRATTAIN MINNIX GARCIA
[e-mail]
William Lance McCoskey
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
[e-mail]