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United States v. Tulu

January 11, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALKHIDER TULU, DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge

FOR PUBLICATION

OPINION

Presently before the Court is the Motion of Defendant, Alkhider Tulu ("Tulu"), to Withdraw his Plea of Guilty. Defendant was indicted for distribution of more than 50 grams of crack cocaine on November 30, 2005. He plead guilty on March 13, 2007, and has been incarcerated from July 26, 2005, the date his criminal complaint was unsealed, to present. Defendant argues that he should be permitted to withdraw his guilty plea due to ineffective assistance of counsel. Defendant alleges that his first defense counsel, Assistant Federal Public Defender, Ms. Maggie Moy Esq., ("Ms. Moy") improperly consented to exclusions of time for purposes of the Speedy Trial Act and that his second defense counsel, Mr. David Schroth, Esq., ("Mr. Schroth"), gave ineffective assistance of counsel by advising Defendant that two then pending motions lacked merit and should be withdrawn. The two motions were: (1) a Motion for Reconsideration of this Court's denial of a suppression motion; and (2) a Motion to Dismiss the Indictment based on alleged violations of the Speedy Trial Act. The Court finds that Defendant Tulu's contentions are without merit because Mr. Schroth properly advised Defendant regarding the potential merit of his motions and Ms. Moy properly entered into continuances pursuant to the ends of justice. Hence, Defendant's Motion to Withdraw his Guilty Plea is denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On July 15, 2005, a sealed criminal complaint was filed by the United States of America (the "Government") against Tulu. On July 25, 2005, this complaint was unsealed, and on July 26, 2005, Defendant appeared for his initial appearance before U.S. Magistrate Judge Ann Marie Donio. On August 1, 2005, Judge Donio detained Defendant pending trial.

A. Exclusions of Time During Ms. Moy's Representation

Defendant was represented by Ms. Moy, Assistant Federal Public Defender, from July 26, 2005 until September 14, 2006. On August 3, 2005, an order continuing the deadline for the filing of an indictment was executed by both parties and signed by U.S. Magistrate Judge Joel Rosen, excluding the time from August 2, 2005 until October 3, 2005 pursuant to the "ends of justice." On September 25, 2005, the parties consented to another order continuing the deadline for the filing of an indictment, which was approved by U.S. Magistrate Judge Joel Rosen, excluding the time from October 3, 2005 until November 2, 2005. On October 31, 2005, the final order continuing the deadline for the filing of an indictment was signed by the parties and U.S. Magistrate Judge Joel Rosen, excluding the time from November 2, 2005 until December 2, 2005. The total pre-indictment exclusion of time for purposes of the Speedy Trial Act was from August 2, 2005 until December 2, 2005, approximately four months.

On November 30, 2005, a federal grand jury returned a one count indictment against Defendant, charging him with possession with the intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On December 12, 2005, Defendant appeared for an arraignment before U.S. Magistrate Judge Donio and entered a plea of not guilty. Defendant's trial was originally set for February 6, 2006. On January 6, 2006, Defendant filed a Motion for Pretrial Relief, including the suppression of evidence. On January 11, 2006, this Court set a hearing date of January 27, 2006 for Defendant's motion, although the hearing was actually held on February 2, 2006. After hearing testimony of several witnesses on that date, as well as the arguments of counsel, the Court rendered an oral decision denying Defendant's Motion to Suppress Evidence.

On February 9, 2006, an order continuing the trial date pursuant to the ends of justice was signed by both parties and entered by the Court, excluding the time from February 8, 2006 until April 7, 2006. On February 14, 2006, Defendant filed a pro se appeal of this Court's February 2, 2006 rulings. This appeal was pending until its dismissal by the Third Circuit on November 28, 2006. On March 10, 2006, Defendant filed a Motion to Compel Discovery. This Court set a hearing date of April 7, 2006 for the motion. Subsequently, continuance orders were signed by both parties and entered by the Court, pursuant to the ends of justice, on the following dates: April 5, 2006, excluding the time from April 7, 2006 until May 8, 2006; May 9, 2006, excluding the time from May 8, 2006 until June 9, 2006; June 15, 2006, excluding the time from June 15, 2006 until July 10, 2006; July 21, 2006, excluding the time from July 19, 2006 until August 14, 2006; and August 17, 2006, excluding the time from August 17, 2006 until September 15, 2006.

The periods of time that were excluded by continuance orders during the course of Ms. Moy's representation of Defendant were: August 3, 2005 through December 2, 2005 (pre-indictment), February 8, 2006 through June 9, 2006, June 15, 2006 through July 10, 2006, July 19, 2006 through August 14, 2006, and August 17, 2006 through September 15, 2006. During the course of Ms. Moy's representation of Defendant, the periods of time that were excluded based upon Defendant's pending motions and Defendant's appeal were: January 6, 2006 through February 2, 2006 and February 14, 2006 through November 28, 2006 (extending well past the September 14, 2006 date when Ms. Moy was replaced as Defendant's counsel).

B. Exclusions of Time During Mr. Schroth's Representation

On August 30, 2006, Defendant filed a motion for appointment of substitute counsel in place of Ms. Moy, based upon differences in opinion and strategy between counsel and the Defendant. The Court granted that motion and Mr. Schrothwas appointed as Defendant's new counsel; he served in that capacity from September 14, 2006 through July 13, 2007. Beginning the same day as his appointment, and to afford new counsel an opportunity to review the file, a series of orders were signed by both parties and entered by the Court, pursuant to the ends of justice, on the following dates: September 14, 2006, excluding the time from September 14, 2006 until November 3, 2006; November 3, 2006, excluding the time from November 3, 2006 until December 1, 2006; November 13, 2006, excluding the time from November 13, 2006 until December 1, 2006; and December 1, 2006, excluding the time from December 1, 2006 until February 1, 2007. On January 31, 2007, Defendant appeared before this Court with counsel, and submitted an application for a 60 day continuance. A scheduling order was issued setting a new trial date of March 26, 2007.

On February 9, 2007, Defendant filed a Motion for Reconsideration of his Motion to Suppress, and on February 16, 2007, Defendant filed a second Motion for Reconsideration of his Motion to Suppress and a Motion to Dismiss on Speedy Trial grounds. Also on that date, an order continuing the trial date, pursuant to the ends of justice, was signed by both parties and entered by the Court, excluding the time from February 16, 2007 until March 26, 2007. A hearing date on Defendant's motions was set for March 19, 2007.

The periods of time that were excluded by continuance orders during the course of Mr. Schroth's representation of Defendant were: September 14, 2006 through February 1, 2007 and February 16, 2007 through March 26, 2007. The periods of time that were excluded based upon pending motions and Defendant's appeal during the course of Mr. Schroth's representation of Defendant were: September 14, 2006 through November 28, 2006 (Defendant's appeal) and February 9, 2007 through March, 13, 2007 (Motion for Reconsideration and Motion to Dismiss on Speedy Trial grounds).

C. Defendant's Motion to Withdraw his Guilty Plea

On March 13, 2007, the hearing date for Defendant's motions, Defendant instead entered a plea of guilty. During the plea hearing, this Court inquired as to whether the motions filed by Defendant on February 9 and 16, 2007 were being withdrawn, in light of the plea. Both Mr. Schroth and Mr. Tulu acknowledged that those motions were being withdrawn. While pending sentencing, on June 12, 2007, Defendant filed a motion for appointment of yet another new attorney. On July 13, 2007, Hal K. Haveson was appointed to represent Defendant in lieu of Mr. Schroth.

On October 5, 2007, Defendant filed a Motion to Withdraw his Guilty Plea. The Government filed its brief in opposition to Defendant's motion on October 31, 2007. A hearing was held on November 5, 2007, at which time Defendant and his two former defense counsel testified. At the conclusion of the hearing, the court ordered the ...


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