Unpublished Disposition, 918 F.2d 181 (9th Cir. 1989)

MEMORANDUM^* 

Dorman Dean Coleman appeals from the denial of his motion to vacate his plea of guilty and his motion to recuse Judge Richard M. Bilby or to transfer this matter for trial before another judge. He raises the following issues on appeal:

1. His plea was involuntary because it was not made knowingly and intelligently as the result of ineffective assistance of counsel, and the consumption of large amounts of alcohol as well as valium coupled with his lack of sleep and limited education.

2. The district court abused its discretion in denying the motion to recuse Judge Bilby and the motion to transfer this matter to another judge.

FACTUAL BACKGROUND

Coleman was charged in the indictment with one count of posession with the intent to distribute 100 to 1000 kilograms of marijuana in violation of 21 U.S.C. § 841(a) (1) and Sec. 841(b) (1) (B) (vii). On January 25, 1989, Coleman moved to suppress all evidence against him based upon an alleged illegal stop and search of his vehicle. After an evidentiary hearing the motion to suppress was denied on February 13, 1989. On February 24, 1989, the district court was informed that Coleman would plead guilty pursuant to a plea agreement under which the allegation concerning a prior conviction was to be dismissed at the time of sentencing. Coleman was sentenced to serve 78 months in prison with a supervised release term of 48 months.

Prior to accepting his plea of guilty, Coleman was placed under oath and questioned by the court. When asked if he had taken any narcotic drugs, medicine or pills or drunk any alcoholic beverages in the past 48 hours, Coleman's reply was "no." When asked if he understood that the range of sentence was 5 to 40 years, Coleman responded "Yes, your honor." Based on the answers to these and other questions, the court expressly found that Coleman was competent to enter the plea, that the plea was voluntary, and that a factual basis existed for the plea.

On June 21, 1989, Coleman filed a motion to vacate his guilty plea with an accompanying affidavit. In the affidavit he stated that Ms. Sattler, his counsel at the time of the plea, had promised he would receive a five-year sentence. He also alleged that Sattler had failed to inform him that by pleading guilty he would lose his right to appeal from the denial of his motion to suppress. Coleman asserted further that he had been drinking heavily and taking valium the night before the plea and, as a result, he did not fully understand the nature and consequences of a plea of guilty. He further alleged that Sattler had told him not to let the court know that he had been drinking.

On July 17, 1989, and August 31, 1989, the district court conducted an evidentiary hearing to determine whether Coleman's plea should be vacated. Sattler testified that she told Coleman he would lose his right to appeal from the motion to suppress if he pled guilty. She did not promise him that he would receive a five-year sentence. Coleman did not state that he was under the influence of drugs or alcohol at the time of the plea nor did he appear so. She did not tell him to lie to the court concerning whether he had consumed drugs or alcohol.

Coleman called his daughter Roxana Martin as a witness at the hearing on the motion to vacate his plea. She testified that Coleman appeared "hungover" on the day of the plea and that he told her he had gotten drunk on Jack Daniels the night before. Coleman testified that she had been present at every discussion between himself and Sattler. Martin testified as follows:

Q. At any time that you were present that your father had a conversation with Barbara Sattler, did she ever advise him about his appellate rights that--let me finish the question--that he would in fact lose his appellate rights if he pled guilty?

A. No, the first time I heard that word was in your office the other day.

Q. Did Barbara Sattler in your presence, with your father present, ever indicate to you that your father would, if he pled guilty, would be facing five to forty years?

A. No, she said if he would go in and plead guilty that he would get five years.

Coleman also testified. His testimony was consistent with his affidavit. The judge found that Coleman was not a credible witness. The motion was denied.

On September 11, 1989, Coleman filed a motion to recuse Judge Bilby and to transfer the matter to another judge. On October 3, 1989, Judge Bilby denied the recusal motion and Judge William D. Browning denied the motion to transfer the matter to another judge. Coleman has timely appealed.

DISCUSSION

Coleman contends that the district court erred in denying his motion to vacate his guilty plea because many factors rendered his plea involuntary. We will discuss each contention under separate headings. We review the district court's denial of Coleman's motion to withdraw his guilty plea for abuse of discretion. United States v. Rubalcaba, 811 F.2d 491, 492 (9th Cir. 1987), cert. denied, 484 U.S. 832 (1987). Resolution of each of Coleman's contentions turns on the credibility determination made by the district court. "Credibility determinations are insulated from appellate review." Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir. 1988). "Great deference is given to the district court's determination of credibility of a witness." S.E.C. v. Rogers, 790 F.2d 1450, 1455 (9th Cir. 1986).

1. Advice Concerning Loss of Right to Appeal

Coleman testified that his attorney never told him that he would lose his right to appeal the denial of his motion to suppress. His daughter testified that she never heard Sattler advise Coleman about the loss of appellate rights. Sattler testified that she not only met with Coleman but also had numerous phone conversations with him. She further testified

I was trying to determine--I was trying to make sure I had gotten accurate information that []he wanted the plead, and I wanted to make sure that he understood what he was pleading to. And I don't know if he brought it up or I did, but something about the fact that there was a motion for the stop and I thought it was a reasonable motion and it could not be appealed if he pled.

R.T. 7/17/1989, 26. The district judge stated that the question boiled down to whom he believed and he credited Sattler's testimony that she informed Coleman that he would lose the right to appeal the denial of the motion to suppress if he entered a guilty plea.

Coleman also testified that Sattler told him that he would receive a five-year sentence and that he entered his guilty plea based on this understanding. Sattler testified that she did not tell Coleman he would receive a five-year sentence. She stated that she "told him that the plea was to dismiss the allegations of the prior conviction and that the minimum sentence he would receive if he took the plea was five years." (emphasis added) The district court credited Sattler's testimony and rejected Coleman's version of this conversation. Thus, Coleman has failed to demonstrate with credible evidence that he was not informed that he would lose his right to appeal if he entered a guilty plea, or that he was promised a five-year sentence.

Coleman states that his consumption of large amounts of alcohol and valium, coupled with his lack of sleep and limited education rendered his plea of guilty involuntary. The standard of review for the district court's determination as to voluntariness of a guilty plea is de novo. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). "However, we will uphold findings of historical or subsidiary facts underlying the court's conclusion of voluntariness unless clearly erroneous." United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). "Whether the defendant subjectively understood the consequences of his guilty plea is an underlying factual issue." Id.

The district court properly denied Coleman's motion to vacate his guilty plea. In Tahl v. O'Connor, 336 F. Supp. 576 (D.C.Cal.1971), affirmed, 460 F.2d 1068 (9th Cir. 1971), the district court held that the claim of a petitioner that the disabling effects of his ingestion of a certain drug rendered him incapable of voluntary and intelligently entering a plea of guilty, was unsupported when the only evidence offered was petitioner's own testimony and other witnesses who testified that petitioner's demeanor at the time the plea was entered failed to indicate that he was under the influence of drugs. Tahl, 336 F. Supp. at 579.

Similarly, in the case before us the only evidence Coleman offered to support his contention was his own testimony. His daughter stated at the motion to vacate that she had no personal knowledge of how much alcohol Coleman had consumed the night before the change of plea hearing. She also testified that if she had not been told by her father that he had been drinking, she would not have thought that Coleman was under the influence at the time he pleaded guilty.

Coleman's testimony is contradicted by his sworn statements prior to the entry of his plea of guilty that he was not under the influence of any drugs, marijuana or pills and that he had not drunk any alcoholic beverages in the past 48 hours prior to the change of plea.

At the hearing on the motion to vacate the guilty plea, Sattler testified as follows:

Q. On the day of the actual change of plea, were you relatively close to Mr. Coleman in terms of distance when he was standing and talking to you?

A. I did speak with him for at least a few minutes before.

Q. Did you notice the odor of alcohol on his breath?

A. No.

Q. Did you notice any type of swaying or slurred speech or any differences in his behavior that you'd noticed on prior occasions?

A. No.

Q. Did you have any reason to believe at the time he came into the courtroom that he was under the influence of alcohol or drugs?

A. No.

Q. Did he tell you that he had taken--drunk any Jack Daniels or taken any Valium?

A. No.

Q. Did you ever tell Mr. Coleman that if he told the Court that he had been taking Valium and Jack Daniels that the Court would not take the change of plea and therefore he should not let the Court know that?

A. No.

R.T. 7/17/1989, 12.

Thus, Coleman failed to produce credible evidence demonstrating that his guilty plea was not knowing and voluntary as required by United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986).

Coleman states that under Rule 32(d) of the Federal Rules of Criminal Procedure, he may withdraw his plea prior to judgment for any fair and just reason. United States v. Barker, 514 F.2d 208, 220 (D.C.1975), cert. denied, 95 S. Ct. 2420 (1975). We agree. Coleman fails to note, however, that under the law of this circuit "although a motion to withdraw a guilty plea should be freely allowed, the defendant has the burden on appeal to show that the district court abused its discretion in denying the motion." United States v. Signori, 844 F.2d 635 (9th Cir. 1988). As analyzed above, Coleman has failed to demonstrate with credible evidence that his plea was involuntary. Therefore, the district court did not abuse its discretion in refusing to permit Coleman to withdraw his guilty plea.

2. Motion for Recusal or for Change of Judge

Coleman asserts that Judge Bilby made various rulings and statements during the course of the proceedings which would justify his recusal under 28 U.S.C. § 455(a) or a transfer to another judge pursuant to 28 U.S.C. § 144. Under 28 U.S.C. § 455(a), a judge shall disqualify himself "in any proceeding in which his impartiality might be reasonably questioned." Under 28 U.S.C. § 144, a judge shall disqualify himself, whenever, a party to any proceeding ... makes a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party. We have held that the test for disqualification under both sections is the same. United States v. Carignan, 600 F.2d 762, 764 (9th Cir. 1979). We review the denial of a motion for recusal or for transfer of a matter to another judge for abuse of discretion. United States v. Branco, 798 F.2d 1302, 1304 (9th Cir. 1986).

Coleman contends that Judge Bilby's bias is evident for many reasons. He states that in evaluating the credibility of the witnesses, Judge Bilby gave more credence to Sattler because of her position as an attorney and prejudged Coleman's credibility before his testimony indicating that he had "zero sympathy" for people who lie to him under oath. Additionally, Coleman states that the judge intimidated Coleman's daughter when he interrupted her testimony and warned her of the threat of prosecution for misprison. And lastly, Coleman contends that the judge improperly denied his request to invoke Rule 65, relating to the exclusion of witnesses, allowing Sattler to remain in the room while his daughter was testifying.

None of the grounds advanced by Coleman are sufficient to demonstrate that Judge Bilby was biased or prejudiced. In In re Corey, 892 F.2d 829 (9th Cir. 1989), cert. denied, 59 U.S.L.W. 3244 (1990), we held that " [j]udicial bias must arise from extrajudicial sources." Id. A judge's rulings while presiding over a case do not constitute extrajudicial conduct. Nilsson v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988). A district court judge is required to make credibility determinations in resolving disputed issues of fact in non-jury proceedings.

In United States v. Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989), we stated that "the fact that the judge has strong feelings on a particular crime does not automatically disqualify him from sentencing those who have committed that crime." Id. at 1357. Similarly, the district court judge's strong feelings about witnesses who lie to him under oath is not a sufficient reason to disqualify a judge from presiding over an evidentiary hearing to determine whether a plea of guilty should be vacated.

The record shows that Judge Bilby presided over this trial in a fair, objective and impartial manner. The district court did not abuse its discretion in denying Coleman's motions for recusal or transfer of this matter to another judge.

AFFIRMED.