The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA
Defendant Jose Soto-Madrigal ("defendant") entered a guilty plea to Illegal Re-entry of a Deported Alien on April 19, 2011. He now seeks, prior to sentencing, to withdraw from that guilty plea, claiming that his counsel failed to inform him of a potentially meritorious motion to suppress. On September 13 and 15, 2011, the court received testimony from defendant and his former counsel, Assistant Federal Public Defender Salina Althof ("Althof"). After considering this testimony, reviewing the supporting and opposing memoranda, and considering the arguments of counsel, the court DENIES defendant's motion to withdraw from his guilty plea.
Agents of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") arrested defendant at his residence located in Kailua-Kona, Hawaii on February 24, 2011. On March 18, 2011, a criminal complaint was filed against defendant, charging him with Illegal Re-entry of a Deported Alien. Althof was then appointed to represent defendant.*fn1
Defendant was indicted by a federal grand jury in a single-count indictment for the same offense on March 31, 2011, and he entered a plea of guilty to that offense on April 19, 2011. During the change of plea proceeding, defendant was sworn to answer all questions truthfully, stated that his mind was clear, that he had sufficient time to discuss his case and decision to plead guilty with Althof, and that he was satisfied with Althof's representation of him.
On July 18, 2011, Althof filed a Motion to Withdraw as Attorney, stating that defendant "indicated he did not want to go forward with sentencing and would like to pursue a suppression motion." Doc. No. 27, Althof Decl. ¶ 7.*fn2
After obtaining new counsel, defendant then filed a motion to withdraw from his guilty plea on August 4, 2011. In that motion, defendant claims that he informed Althof of the facts of his arrest and his concerns regarding the legality of his arrest, but that Althof responded "that is how the police operate" and that she "didn't appear to pay close attention" to his concerns regarding a potentially illegal arrest. Doc. No. 28, Park Decl. ¶¶ 6-7. Defendant further claims that after he entered his plea, Althof obtained a letter setting forth details regarding ICE's entry to defendant's home,*fn3 and only then did she relate to him that "there were possible search and seizure issues at the time of his arrest." Id. at ¶ 10.
On September 13, 2011, defendant testified in support of his motion to suppress. After outlining the nature of his February 24, 2011 arrest, defendant explained that while in custody he spoke with an immigration attorney*fn4 about his arrest, learning that it was potentially illegal. He further testified that although he attempted to speak to Althof about his arrest prior to April 19, 2011, "it didn't seem to matter to her. She didn't seem to think it was important" and "she didn't pay much attention to it." 9/13/11 Tr.*fn5 at 15-16. He nonetheless entered the plea of guilty. According to defendant, after April 19, 2011, Althof obtained a copy of the sister-in-law's letter, recognized that she had provided him with insufficient advice concerning a motion to suppress, and advised him to obtain another attorney. Id.
Althof's September 15, 2011 testimony provided a fuller -- and in the court's view, a more credible -- explanation of events. Althof testified that she first met defendant at Honolulu's Federal Detention Center (FDC) on March 28, 2011. At that time, defendant expressed his desire to enter a plea of guilty. Apparently also on that date, defendant told Althof that he had met with an ACLU attorney. Althof then spoke with the ACLU attorney, including his understanding of the circumstances surrounding defendant's arrest. Doc. No. 36 at 4-6.
On April 11, 2011, after having obtained discovery and spoken with the ACLU attorney, Althof met with defendant with an interpreter at the FDC. Prior to this meeting, Althof reviewed a potential motion to dismiss, examining two issues:
1) whether defendant could potentially "prevail" on a motion to suppress (i.e., to obtain a ruling that the search was unlawful); and 2) even if the search was unlawful, whether there was any meaningful remedy. Id. at 9.
During the April 11 meeting, defendant explained the circumstances of his arrest, expressing that "he was upset about how the ICE agents had treated him." Id. at 7. Althof credibly testified that after this conversation she discussed with defendant the potential legal issues involved in a motion to suppress, and explained to him that
[i]t was my legal opinion that we did not have a viable motion to suppress. It was my understanding that there was really nothing to suppress; that the remedy, even if there was an illegal entry, would not have disposed of ...