             Case: 16-16393     Date Filed: 05/31/2018   Page: 1 of 11


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-16393
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:14-cr-00432-AKK-WC-8



UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                       versus

BOBBY RYDELL "YAK" NORMAN,
                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                  (May 31, 2018)

Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Bobby Rydell Norman appeals his drug-conspiracy related convictions. He

alleges that before and during a break in his change-of-plea hearing, his attorney

“browbeat him into involuntarily pleading guilty to a drug conspiracy in which he
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did not participate.” He therefore assigns error to the district court’s denial of his

motions to withdraw his guilty plea and its refusal to hold an evidentiary hearing

on the matter. 1 Upon review of the briefs and the record, we remand for a hearing

and reconsideration of Norman’s motions to withdraw his guilty plea.

                                               I.

       Pursuant to a written plea agreement, Norman pled guilty to drug-conspiracy

related counts. He consented to enter his guilty plea before a magistrate judge.

Leading up to the change-of-plea hearing, Norman had written several letters to the

court about his dissatisfaction with his appointed lawyer. These letters had

culminated in an ex parte hearing before the magistrate judge, where the magistrate

judge encouraged Norman and his attorney to cooperate with each other.

       Norman continued this thread at the subsequent change-of-plea hearing

before the magistrate judge. When asked if he was “fully satisfied” with his

attorney, Norman responded “not really.” However, after Rule 11 inquiries from

the magistrate judge, Norman admitted, among other things, that he had read and

discussed the plea agreement with his attorney; that he was not threatened or

coerced into pleading guilty; that he was doing so voluntarily; and that he and his



1
  Norman also initially raised several challenges to his total sentence. However, pursuant to an
appeal waiver in his plea agreement, a panel of this court granted the government’s motion to
dismiss with respect to Norman’s claims of sentencing error. But that panel denied the motion to
dismiss as to Norman’s challenge to his guilty plea. See United States v. Norman, No. 16-16393
(11th Cir. Sep. 27, 2017) (per curiam), ECF No. 43.
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attorney had discussed the case, his charges, the Sentencing Guidelines, and the

process by which the court would arrive at his total sentence.

      But a problem arose when the prosecutor began to read the factual basis for

the guilty plea. When asked if “there were other individuals in [the] area who sold

on a somewhat continuous basis cocaine base,” Norman responded, “I guess. I

don’t know. I don’t know what they did. You asked me a question, I’m – told me

to answer it honestly. I don’t know what they was doing.” Norman also noted that

he did not store cocaine in his house.

      Further, in response to the government’s allegation that Norman “sold an

amount of up to five kilograms of [cocaine] powder” in cooperation with another

person, Norman and the government had the following exchange:

          Norman: “I don’t agree with that.”
          Government: “How much powder did you sell?”
          Norman: “Wasn’t no five kilos.”
          Government: “How much was it?”
          Norman: “Couple of grams. Couple of grams of . . . powder.”
          Government: “The people that you agreed with to buy and sell this
                       cocaine hydrochloride, they had other customers and
                       other people that they sold to; is that correct? You
                       weren’t the only one they were distributing to.”
          Norman: “I don’t know who they were distributing to.”

The magistrate judge then asked if the parties would like a break, and there

was a “[b]rief pause in the proceedings.”

      After this break, the factual proffer went forward without further

difficulty. Importantly, however, the magistrate judge did not make any
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additional Rule 11 inquiries after the break. The magistrate judge accepted

Norman’s guilty plea, finding that he was competent, that he was aware of the

nature of the charges and consequences of the plea, and that the plea was

knowing and voluntary and was supported by a factual basis.

      Twenty-five days later, Norman began filing the pro se motions to

withdraw his guilty plea that are the subject of this appeal. He filed two pro se

motions to withdraw the plea and one pro se motion to reconsider. Broadly,

these motions accused Norman’s attorney of misleading Norman and

defrauding him into signing the plea agreement. For example, Norman alleged

that the attorney presented him with one version of the plea agreement for

signature and then switched the document to a different version before the plea

hearing itself. He asserted that the attorney refused to mail him a copy of the

agreement for eight months. Norman also alleged that the attorney threatened

to do only the bare minimum necessary to avoid an incompetence claim if

Norman forced him to go to trial. And he claimed that the attorney misled him

about the conduct to which his co-conspirators would testify.

      Essentially, Norman argued that he accepted the plea agreement under

duress imposed by his attorney—and that the attorney’s improper conduct took

place before the plea-change hearing and during the break in the middle of it.

The magistrate judge rejected each motion without a hearing.


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                                             II.

       As a preliminary matter, a magistrate judge presided over the above

proceedings and made the related rulings. We are generally without

jurisdiction to hear appeals directly from magistrate judges. United States v.

Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (per curiam); United States v.

Brown, 441 F3d 1330, 1352 (11th Cir. 2006). A party in a criminal proceeding

has fourteen days to object to a magistrate judge’s order, which amounts to an

appeal to the district court and preserves that party’s right to appellate review.

See Fed. R. Crim. P. 59. We construe documents filed pro se liberally.

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007); Mays v.

United States, 817 F.3d 728, 731 n.2 (11th Cir. 2016) (per curiam).

       Here, Norman’s second pro se motion to withdraw, Doc. 394, was filed

on July 21, 2016. The magistrate judge denied it on August 9, 2016. Doc.

406. Thirteen days later,2 Norman filed a lengthy pro se motion to reconsider.

Doc. 415. On September 21, 2016, the magistrate judge denied the motion to

reconsider. Doc. 438. Two days after this, at sentencing, the district court

noted on the record:

    Mr. Norman, I’ve reviewed [the magistrate judge’s] orders as it relates to
    your motion to withdraw your plea. Although you’re not asking me to, I
    see no reason to revisit his decisions. He correctly laid out the law, the

2
  Under Fed. R. Crim. P. 45, 59, and/or the prison mailbox rule, Norman likely filed this motion
to reconsider even sooner than thirteen days after the magistrate judge’s denial.
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    facts, and, from my perspective, I think correctly ruled in denying your
    motions as well.

Doc. 539 at 3.

       Keeping in mind that we construe pro se documents liberally, we hold

that on the particular facts of this case, Norman sufficiently objected to and

appealed from the magistrate judge’s order denying his pro se motion to

withdraw his plea. He timely filed a pro se motion to reconsider within the

fourteen-day window for objection. Furthermore, the district court remarked

that it had reviewed the magistrate judge’s orders and found that he had

“correctly laid out the law” and “correctly ruled” on the pro se motions

Norman filed. In light of this, we find that Norman’s filings “permit[ted] the

district court to ‘effectively review’ the magistrate judge’s ruling.” See

Schultz, 565 F.3d at 1360. Accordingly, we find that we have jurisdiction to

hear this appeal. 3

                                           III.

       We review the district court’s denial of a motion to withdraw a guilty

plea for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298

(11th Cir. 2006) (per curiam). We likewise review for abuse of discretion a

district court’s decision about whether to hold an evidentiary hearing. Id.


3
  For future proceedings, however, we refer Norman to Fed. R. Crim. P. 59, which explains how
to properly object to a magistrate judge’s order, appealing that order to the district court.
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      We have held that “there is no absolute right to withdraw a guilty plea

prior to imposition of a sentence.” United States v. Buckles, 843 F.2d 469, 471

(11th Cir. 1988). Defendants seeking to withdraw a guilty plea prior to

sentencing must show that there is a fair and just reason for doing so. Fed. R.

Crim. P. 11(d)(2)(B). Whether a defendant’s motion to withdraw shows a fair

and just reason is to be liberally construed; however, the decision to allow

withdrawal is left to the sound discretion of the trial court, and the district court

may be reversed only if its decision is arbitrary or unreasonable. Buckles, 843

F.2d at 471.

      The defendant bears the burden to show that the plea should be

withdrawn. Id. at 472. In determining whether he has met this burden, a

district court may consider the totality of the circumstances surrounding the

plea, including whether: (1) close assistance of counsel was available, (2) the

plea was knowing and voluntary, (3) judicial resources would be conserved,

and (4) the government would be prejudiced if the defendant were allowed to

withdraw his plea. Id. at 471–72.

      In “a situation in which a defendant submits specific factual allegations,

not directly contradicted in the record, of circumstances undermining his plea,

further fact development,” in the form of an evidentiary hearing, is required.

United States v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir. 1979) (citations


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omitted);4 see also United States v. Yizar, 956 F.2d 230, 234 (11th Cir. 1992)

(remanding, in a § 2255 context, for an evidentiary hearing when “it cannot be

conclusively stated that [the defendant] is entitled to no relief”). Mere

“conclusory allegation[s] unsupported by specifics,” however, do “not justify a

hearing to relitigate representations made by [a defendant], his lawyer, and the

prosecutor in open court.” Dabdoub-Diaz, 599 F.2d at 100. This is because

statements made under oath during a plea colloquy receive a strong

presumption of truthfulness. United States v. Medlock, 12 F.3d 185, 187 (11th

Cir. 1994).

       A trial court’s conducting of “extensive Rule 11 inquiries” before

accepting the plea weighs against its abuse of discretion in declining to hold an

evidentiary hearing, particularly when the Rule 11 inquiries were “careful and

detailed.” United States v. Stitzer, 785 F.2d 1506, 1514 & n.4 (11th Cir. 1986).

But we have remanded for an evidentiary hearing when, for example, a

defendant made specific factual allegations, supported by a reliable third party

affidavit, undermining his Rule 11 testimony that his plea was entered

knowingly and voluntarily. United States v. Sanderson, 595 F.2d 1021, 1021

(5th Cir. 1979) (per curiam).


4
  See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that
all decisions of the “old Fifth” handed down prior to the close of business on September 30,
1981, are binding precedent in the Eleventh Circuit).
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      In this case, Norman makes specific factual allegations that undermine

the voluntariness of his plea and the adequacy of his counsel. Namely, he

alleges that his attorney deceived him into accepting the plea in order to avoid

going to trial. There is certainly support in the record for Norman’s contention

that he was dissatisfied with his counsel’s performance, as the magistrate judge

eventually held a hearing in order to encourage cooperation between client and

counsel. And Norman stated his dissatisfaction with counsel at the change-of-

plea hearing. Further, Norman’s allegations that his attorney lied to him and

strongly pressured him in order to avoid going to trial are not directly

contradicted by the record.

      Typically, such allegations would not be enough to warrant a finding of

an abuse of discretion in the failure to hold an evidentiary hearing, because the

magistrate judge conducted Rule 11 inquiries and concluded that Norman

entered his plea knowingly and voluntarily. But, in this case, Norman’s attacks

go to the sufficiency of these very inquiries. The transcript of the change-of-

plea hearing at which the Rule 11 inquiries were given shows Norman’s

reluctance to plead guilty and his apparent unfamiliarity with the specifics of

the crime to which he was admitting. The magistrate judge clearly noticed that

something was wrong, as he allowed the parties to take a break in the middle of

the factual proffer. And, most importantly, Norman’s allegations that his


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attorney failed him during this break, after which no additional Rule 11

inquiries were made, potentially undermine the voluntariness of the entire

second half of the hearing. This second half is when Norman acquiesced and

entered his guilty plea.

       All of these attacks, taken as a whole, constitute “specific factual

allegations, not directly contradicted in the record, of circumstances

undermining [Norman’s] plea.” Dabdoub-Diaz, 599 F.2d at 100. For the

reasons stated above, we cannot, on this record, say that Norman’s under-oath

responses to the Rule 11 inquiries directly contradict his allegations. 5

         We therefore find that the district court abused its discretion in

declining to hold an evidentiary hearing on Norman’s motions to withdraw his

plea. Although we remand for such a hearing, we “pretermit the outcome.”

Yizar, 956 F.2d at 234. Rather, we simply hold that, on the facts of this case,

Norman has made sufficient allegations to require further inquiry. See

Dabdoub-Diaz, 599 F.2d at 100. 6



5
  We decline to reach the merits of the plea-withdrawal motion, and the district court is free to
develop a more extensive record of what happened before and during the plea-change hearing. It
may be the case that the totality of the circumstances surrounding the plea, including the Rule 11
inquiry, shows that Norman has not met his burden for withdrawal. See Buckles, 843 F.2d at
471–72. But there is not enough information at this time for us to make that determination.
6
  We are particularly concerned with what happened during the break in the plea-change hearing,
because it took place after the Rule 11 inquiries. We therefore direct that the court conducting
the evidentiary hearing on remand develop a record with respect to this break. Of course, we do
not limit the hearing to this matter.
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                                        IV.

      We vacate the district court’s orders on Norman’s motions to withdraw

his guilty plea, and we remand for an evidentiary hearing and subsequent

reconsideration of the motions.

      VACATED AND REMANDED.




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