Appeal from the United States District Court for the District of Nevada Roger L. Hunt, District Judge, Presiding D.C. No.2:08-cr-00126-RLH- PAL-1
The opinion of the court was delivered by: O'scannlain, Circuit Judge:
Submitted May 13, 2011*fn1 San Francisco, California
Before: Diarmuid F. O'Scannlain and Ronald M. Gould, Circuit Judges, and Amy J. St. Eve, District Judge.*fn2
Opinion by Judge O'Scannlain
We must decide whether a criminal defendant's waiver of his right to appeal his conviction extends to the denial of his subsequent motion to withdraw his guilty plea.
Najeeb Rahman pled guilty to aggravated identity theft and to committing fraudulent transactions with access devices, in violation of 18 U.S.C. §§ 1028A and 1029(a)(5), respectively. In a written plea agreement, Rahman waived "his right to appeal any aspect of his convictions."
Before accepting Rahman's guilty plea, the district court conducted a hearing under Federal Rule of Criminal Proce- dure 11 in which it confirmed that Rahman was of sound mind, explained to Rahman the charges against him and the rights that he was giving up by pleading guilty, and determined that there was a factual basis for the plea. Rahman specifically affirmed that he had read and understood the plea agreement, that he was satisfied with his counsel's representation, and that he understood that he was waiving his right to appeal.
Subsequently, Rahman moved to withdraw that plea and to obtain new counsel, citing a "rift" and "overall communications difficulties" between himself and his counsel. Rahman also claimed that his attorney "misinformed" and "misguided" him. Rahman did not elaborate on these allegations, however. The district court granted Rahman's motion to appoint new counsel and, after allowing Rahman's new counsel to file a supplemental brief, held a hearing on Rahman's motion to withdraw his guilty plea.
Rahman did not call any witnesses at the hearing. Instead, his counsel relied on Rahman's pro se filings which "alluded to" the fact that Rahman was "misled" and "misguided" by his former counsel. Still, Rahman's new counsel admitted that he did not "know exactly what it was that transpired" in the talks between Rahman and his former counsel. He further stated that he was "not sure of what representations or promises were made during conversations [between Rahman and his prior counsel] that caused him to plead guilty."
The district court denied Rahman's motion to withdraw his plea, noting that Rahman made no showing of ineffective assistance and, in fact, spent most of his motion complaining ...