United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is Magistrate Judge Leen's report and
recommendation (“R&R”), recommending that
defendant Tyrone Davis's motions to withdraw guilty plea
(ECF Nos. 255, 264) and the government's motion to strike
(ECF No. 256) be denied. (ECF No. 293). Defendant filed an
objection to the R&R (ECF No. 298), to which the
government responded (ECF No. 306).
August 7, 2012, a federal grand jury returned an indictment
(ECF No. 1) against defendant. During his initial appearance
and arraignment, Davis pled not guilty to the charges and was
detained pending trial. (ECF Nos. 11, 13). On August 13,
2013, a federal grand jury returned a superseding indictment
(ECF No. 46) charging defendant with three counts: (1)
possession of a firearm by a convicted felon in violation 18
U.S.C. §§ 922(g)(1) and 924(a)(2); (2) possession
of cocaine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3)
possession of a firearm in relation to a drug trafficking
offense in violation of 18 U.S.C. §§ 922(g)(1) and
924(c)(1)(A)(i). Defendant was arraigned on the superseding
indictment and pled not guilty on all three counts. (ECF No.
multiple stipulated continuances and changes of defense
counsel, the court set trial for June 6, 2016. (ECF No. 221).
After a jury was empaneled, defendant withdrew his not guilty
plea and entered a plea of guilty, resulting in the
court's vacating the trial. (ECF No. 245).
5, 2016, defendant filed a pro se motion to withdraw
guilty plea. (ECF No. 255). On July 8, 2016, the government
filed a motion to strike defendant's pro se
motion. (ECF No. 256). On August 16, 2016, defense counsel
filed another motion to withdraw guilty plea on behalf of
defendant. (ECF No. 264). The government filed a response
(ECF No. 265), to which defendant replied (ECF No. 266).
November 10, 2016, the magistrate entered the instant
R&R, recommending that defendant's motions to
withdraw guilty plea (ECF Nos. 255, 264) and the
government's motion to strike (ECF No. 256) be denied.
(ECF No. 293). After reviewing and considering the transcript
of the change of plea hearing and setting forth a detailed
outline of the record, Magistrate Judge Leen concluded that
defendant's guilty plea was knowing, voluntary, and
intelligent. (ECF No. 293).
makes two objections to the R&R. (ECF No. 298). The court
will address each in turn.
may file specific written objections to the findings and
recommendations of a United States magistrate judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, the court is required
to “make a de novo determination of those portions of
the [report and recommendation] to which objection is
made.” 28 U.S.C. § 636(b)(1). The court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service of the motion.
defendant may withdraw his or her guilty plea only if the
defendant “show[s] a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). “The decision to allow a defendant to
withdraw his plea . . . lies within the discretion of the
district court.” United States v. Ruiz, 257
F.3d 1030, 1033 (9th Cir.2001) (en banc). Although
the defendant bears the burden of establishing a fair and
just reason, “the ‘fair and just' standard is
applied liberally.” United States v.
Yamashiro, 788 F.3d 1231, 1237 (9th Cir. 2015) (citing
United States v. Bonilla, 637 F.3d 980, 983 (9th
is well-established that a defendant has no right to withdraw
his guilty plea, and that a withdrawal motion is committed to
the sound discretion of the district court.” United
States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988)
(collecting cases); see also Yamashiro, 788 F.3d at
1236 (“The decision whether to permit the withdrawal of
a plea is solely within the discretion of the district
court.” (quoting United States v. Showalter,
569 F.3d 1150, 1154 (9th Cir. 2009))). A defendant may not
withdraw his guilty plea “simply on a lark.”
United States v. Hyde, 520 U.S. 670, 676-77 (1997).
However, the district court must review each case in ...