Petition for Writ of Certiorari — Jim Walter Qualls, Jr., Petitioner v. United States

CAUSE NO.

IN THE SUPREME COURT OF THE UNITED STATES

JIM WALTER QUALLS, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Respectfully submitted,

J. Lance Hopkins, OBA#14852

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

Counsel for Petitioner

Jim Walter Qualls, Jr.

The Question Presented for Review Expressed in the Terms and Circumstances of the

Case.

Whether the Supreme Court should resolve a conflict among the Circuit Courts of

Appeals, and find that the Tenth Circuit erred in affirming Petitioner’s conviction, due to

the fact that a United States Magistrate Judge does not have statutory authority to accept

a guilty plea in a felony case and adjudge a defendant guilty.

b. List of All Parties to the Proceeding.

US. vs. Jim Walter Qualls, Jr.

Cc. Table of Contents and Table of Authorities.

Table of Contents Page

(a) The Question Presented for Review Expressed

in the Terms and Circumstances of the Case ........... 00 ce eee e eee cece 2

(b) List of All Parties to the Proceeding ........... 0.0. c eee c eee ee eee ees 3

(c) Table of Contents and Table of Authorities ...........0..0 000 c cee ee ee eee 3

(d) Reference to the Official and Unofficial

Reports of Any Opinions ...........0. 2. eee cece cee ee eee eee teen eeenes 5

(e) Concise Statement of Grounds on which

Jurisdiction of this Court is Invoked . . . . cava ie eames te vereete ss He ewe Sew 5

(f) Constitutional Provisions, Statutes, and

Rules which this Case Involves . . . . . . os ss:aiea 0% tonne an Dewees WE weWTA TE 5

(g) Concise Statement of the Cases asisasse ase acwierews aia Wie eames oi Bad BS HOWE BE KC 6

(h) Review of the Judgment of a State Court... 0.0... ec cee ences 7

(i) Review of the Judgment of a Federal Court... 0.2... ec cee eee 7

Gj) Direct and Concise Argument Amplifying the

Reasons Relied on for Allowance of the Writ... 0.0... eee eee eee 7

(k) Appendix ss ais save aus cs ureatane a8 REWER Ee ERE Be Kew Bw UREA HRS le eRtES 16

Conclusion ass sean sc sprees os 5 SWRA HE HOSEN FE Wee’ OE LOSE EO OWEN WS KeHOw TE He 17

Table of Authorities

Cases Page

U.S. v. Arami, 536 F.3d 479 (5™ Cir. 2008) 20.0... c cece eee cence ee eeeueee 13, 14

U.S. v. Ciapponi, 77 F.3d 1247, 1251 (10™ Cir. 1996)... 0... ccc cece ee eee eee 6

U.S. v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015)... ee ee eee 14, 15, 16

U.S. v. Harden, 758 F.3d. 886 (7" Cir. 2014) 0.0... ccc cece ce cece eee e ee ees 10, 11

U.S. v. Lozano, 63 Fed. Appx 962 (8th Cir.2003)....... 0000 cece cece cece cues 13, 14

US. v. Jim Walter Qualls, Jr., 10" Cir. No. 17-2046

(10" Cir., July 12, 2018) 5 senses caus si es ce wawes ad Roads EE HaR@RGS MeSee 5,7, 12

U.S. v. Salas-Garcia, 698 F.3d 1242, 1253 (10™ Cir. 2012) ..... 20... eee eee 6

Constitutional Provisions

Fifth Amendment to the United States Constitution .... 2.2.0.6... 0 ee eee ee eee 5

Statutes

18 U.S.C. $§2251(a) scsmicos ww ararensu 5:6 serenade bo KR UERANEE Te KOTO HE NGHELRCA He ROMO HS 6

18 U.S.C. §§2251(€) cersnsis soe scaracmwrane earevene ae 8 wisraCeNE wR SceCeONN Ome RENAN CHOULONS at 6 6

18 U.S.C. §$§2256. vs sus ie ate site sie sie sis sie ss aie $08 G8 Kin EW HS HS BS HU US Ge Die WE WE He be vie 6

28 U.S.C. § 636... . . . is seach SS SSHST Ss HTT NE VUITSS BG HESS RE HEROS HE 8,9

28 ULS.C.A. § 636(D)(3) occ ee eee eee teen e eee e eee ee eee 8

Rules

Rule 11 of the Federal Rules of Criminal Procedure ...............-200000000- 8, 13

Rule 11(b) of the Federal Rules of Criminal Procedure .............. 200200 e ee 11, 12

Rule 11(QG) «0... ncn. e eee ee eee eee meme > SHERRI om HREECOTINSE 5, 6, 8, 13, 14, 15, 16

Rule 11(G)(2)(B) vais ees sssieran cca aramiace ata staat wa seetavare ate Sei ae ROC ae RETRROCE ate 6 15

Supreme Court Rule 14.1 . ewes os Gauss ce ewes oh Bae Oe oe OE EE Oe ORO 5

Supreme Court Rule 39.2 . seis ais sicieies sie SSSCis HS SieGints Se MERE AE HawEN TS side 5

Rule 59 of the Federal Rules of Criminal Procedure ..............-00200 eevee 9

Petitioner, by and through his attorney, J. Lance Hopkins, respectfully submits this

Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit. On

Petitioner’s behalf, counsel has submitted a Motion to Proceed In Forma Pauperis, a Proof of

Service, and a copy of the Order and Judgment from the appellate court.

This petition has been arranged in the order specified by Rule 14.1 of this Court. The

individual sections have been lettered to correspond with the subparagraphs of Rule 14.1.

Pursuant to Rule 39.2 of this Court, ten copies of this petition are being submitted for filing.

d. Reference to the Official and Unofficial Reports of Any Opinions.

U.S. v. Jim Walter Qualls, Jr., 10" Cir. No. 17-2046, Opinion dated July 12, 2018

e. Concise Statement of Grounds on Which Jurisdicition of this Court is Invoked.

i. Date of Judgment sought to be reviewed: July 12, 2018

il. Date of any order regarding rehearing: None

lil. Cross-Petition: None

iv. Statutory Provision Believed to Confer Jurisdicition:

This case involves review of a count of conviction involving a United States Criminal

Statute, and this Court has jurisdiction over such interpretation and application of United States

Statutes.

f. Constitutional Provisions, Statutes and Rules Which this Case Involves.

i. Constitutional provisions: Right of Due Process pursuant to the Fifth Amendment

to the United States Constitution.

il. Statutes involved: Rule 11(d)(1) of the Federal Rules of Criminal Procedure.

g. Statement of the Case:

The Petitioner, Jim Walter Qualls, Jr., was convicted of all four-counts of a four-count

Indictment in the United States District Court for New Mexico. Each of the four counts alleged

that between October 20, 2013 and February 24, 2014, Appellant did employ, use, persuade,

induce, entice, and coerce a minor child to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct, which visual depiction was

produced using materials that had been mailed, shipped, and transported in interstate and

foreign commerce by any means, including by computer, specifically, a visual depiction with

a SHA 1 hash value beginning 4427b, in violation of 18 U.S.C. §§225l(a), 225l(e), and 2256.

Mr. Qualls entered a plea of guilty to all four counts of the Indictment without the benefit

of a plea agreement. He subsequently was sentenced to 50 years imprisonment as to each of the

four counts running consecutively, resulting in a total term of 200 years imprisonment.

The change-of-plea hearing was held before a United States Magistrate Judge. At the

hearing, Mr. Qualls signed a form giving the Magistrate Judge consent to accept his guilty plea.

Prior to sentencing before a United States District Judge, Qualls filed an amended motion to set

aside his guilty plea, on the basis that because the plea was before a Magistrate, and not before a

District Judge, he had an absolute right to withdraw his plea under Rule 11(d)(1) of the Federal

Rules of Criminal Procedure.

While the District Court recognized that Mr. Qualls would be allowed to withdraw his

plea of guilty under the precedent of some other circuits, it interpreted Tenth Circuit case law to

the contrary and found that Qualls was not entitled to withdraw his guilty plea, citing U.S. v.

Salas-Garcia, 698 F.3d 1242, 1253 (10" Cir. 2012) and U.S. v. Ciapponi, 77 F.3d 1247, 1251

(10" Cir. 1996), and therefore denied the motion.

The Tenth Circuit affirmed the District Court’s denial of the Motion to Withdraw Guilty

Plea on appeal, with the Tenth Circuit explicitly finding as follows:

At bottom, Qualls contends only United States District Court judges possess

the power to formally accept guilty pleas. Our precedent, however, squarely

forecloses this argument. We have held that “with a defendant’s express consent, the

broad residuary ‘additional duties’ clause of the Magistrates Act authorizes a

magistrate judge to conduct a Rule 11 felony plea proceeding, and such does not

violate the defendant’s constitutional rights.” United States v. Salas-Garcia, 698

F.3d 1242, 1253 (10th Cir. 2012)(emphasis added) (quoting United States v. Ciapponi,

77 F.3d 1247, 1251 (10th Cir. 1996) ). Thus, “[m]agistrate judges have the authority

to conduct plea hearings and accept guilty pleas.” Jd. In so concluding, we

recognized that Congress authorized these duties by magistrate judges, but to the

extent any constitutional ambiguity remained, “the consent requirement—fulfilled

in this case—saves the delegation” from doubt. United States v. Williams, 23 F.3d

629, 633 (2d Cir. 1994) (relied on by Ciapponi); accord United States v. Reyna-Tapia,

328 F.3d 1114, 1121 (9th Cir. 2003); United States v. Torres, 258 F.3d 791, 796 (8th

Cir. 2001); United States v. Dees, 125 F.3d 261, 267 (5th Cir. 1997).

U.S. v. Qualls, -- Fed.Appx --, 2018 WL 3414584 (10th Cir., 2018), at 2.

Accordingly, the Tenth Circuit has repeatedly found that United States Magistrate Judges

have statutory authority to accept guilty pleas.

h. Review of the Judgment of a State Court: | Not Applicable

i. Review of the Judgment of a Federal Court:

The Petitioner was convicted in the United States District Court for the District of

New Mexico. The Conviction was affirmed by the United States Court of Appeals

for the Tenth Circuit.

j. Direct and Concise Argument Amplifying the Reason Relied on for Allowance of the

Writ.

PROPOSITION ONE: Whether the Supreme Court should resolve a conflict among the Circuit

Courts of Appeals, and find that the Tenth Circuit erred in affirming Petitioner’s conviction, due

to the fact that a United States Magistrate Judge does not have statutory authority to accept a

guilty plea in a felony case and adjudge a defendant guilty.

The Federal Rules of Criminal Procedure provide that: [a] defendant may withdraw a plea

of guilty before the court accepts the plea, for any reason or no reason.” Fed. R. Crim. Proc

11(d)(1). The record reflects that the Petitioner’s guilty plea had not been accepted by a United

States District Judge for the District Court of New Mexico at the time he moved to withdraw

the plea.

Rule 11 (d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or

her guilty plea before a court accepts it. The District Court has no discretion to deny a preacceptance withdrawal of a guilty plea. In fact, Fed. R. Crim. Proc. 11 (d) was amended in

2002 to allow a defendant to withdraw a guilty plea for any reason or for no reason before the

District Court accepts the plea. In Mr. Quall’s case the District Court did not conduct his plea

hearing. His sentencing was not conducted prior to Mr. Quall’s timely filing of his motion to

withdraw his plea, nor had the District Court indicated in any fashion that it had accepted his

plea prior to his motion to withdraw being filed.

While a magistrate judge certainly has the authority to accept a guilty plea if a defendant

grants consent, such acceptance is provisional, and the defendant has an absolute right to

withdraw his or her plea under Rule 11(d)(1) prior to the District Court formally accepting the

plea.

In addition, a United States Magistrate Judge has no express or implied authority under

the Federal Magistrates Act, 28 U.S.C.A. § 636(b)(3), to accept guilty pleas in felony cases and

adjudge a defendant guilty.

The Seventh Circuit recently addressed this issue in U.S. v. Harden, 758 F.3d. 886 (7"

Cir. 2014). Pursuant to a written plea agreement, Stacy Lee Harden pled guilty to possession

with the intent to distribute cocaine. With Harden's consent, the district court instructed a

magistrate judge to conduct a Federal Rule of Criminal Procedure 11 plea colloquy under a local

8

rule allowing for magistrate judges to accept felony guilty pleas. The magistrate judge

accepted Harden's guilty plea, and the district court then conducted a sentencing hearing and

imposed sentence. Harden appealed the magistrate judge's acceptance of his guilty plea, arguing

that the magistrate judge's acceptance of a felony guilty plea, instead of preparing a report and

recommendation to the district court, was a violation of the Federal Magistrates Act, 28 U.S.C.

§636; Rule 59 of the Federal Rules of Criminal Procedure; and the United States Constitution.

The Seventh Circuit agreed and reversed Harden’s conviction.

The Seventh Circuit stated the following:

The Federal Magistrates Act, 28 U.S.C. §636 (“FMA” or “Magistrates Act”),

defines the scope of the duties that United States magistrate judges are permitted to

undertake. The FMA lists three types of duties for magistrate judges. They may

undertake certain enumerated tasks without the parties’ consent, such as enter a

sentence for a petty offense, or hear and determine certain pretrial matters pending

before the court. 28 U.S.C. § 636(a)(4), (b)(1)(A). They are permitted to perform

other enumerated duties, such as presiding over misdemeanor trials, only with the

litigants’ consent. 28 U.S.C. § 636(a)(3); 18 U.S.C. § 3401(b). And they are permitted

to undertake “such additional duties as are not inconsistent with the Constitution

and laws of the United States.” 28 U.S.C. § 636(b)(3).

The Supreme Court has explained that whether a duty not listed in the

statute qualifies as a permissible additional duty depends on whether the duty is

“comparable” to those that are actually listed in the Act. Peretz v. United States, 501

US. 923, 931-933, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). If an unlisted duty is

comparable to those duties listed in the Act, that duty may be performed by the

magistrate judge with the parties’ consent. Id. at 933, 111 S.Ct. 2661. The basis for

comparison is “responsibility and importance”: in Peretz, the Court concluded that

a magistrate judge may oversee jury selection in a felony case with the parties’

consent, because “with the parties’ consent, a district judge may delegate to a

magistrate supervision of entire civil and misdemeanor trials,” and “[t|hese duties

are comparable in responsibility and importance to presiding over voir dire at

trial.” Id.

The acceptance of a guilty plea in a felony case is not a described power or

duty, so we must interpret the “additional duties” clause of the statute to determine

whether the Act permits magistrate judges to discharge that function, even with the

consent of the defendant and the government. Based on the statute and the Supreme

Court decisions limning the limits of federal magistrates' authority, we determine

that magistrates are not permitted to accept guilty pleas in felony cases and adjudge

a defendant guilty. The task of accepting a guilty plea is a task too important to be

considered a mere “additional duty” permitted under §636(b)(3): it is more

important than the supervision of a civil or misdemeanor trial, or presiding

over voir dire. Because of this importance, the additional duties clause cannot be

stretched to reach acceptance of felony guilty pleas, even with a defendant's consent.

U.S. v. Harden, supra, at 888.

The Seventh Circuit went on to state:

Once a defendant's guilty plea is accepted, the prosecution is at the same

stage as if a jury had just returned a verdict of guilty after a trial. Unlike the

preliminary nature of voir dire—which is an important, but preliminary, juncture

that will be followed by numerous other substantive opportunities to contest the

government's evidence, case, and conduct before any determination of guilt—the

acceptance of a guilty plea is dispositive. It results in a final and consequential shift

in the defendant's status. For this reason, the acceptance of the guilty plea is quite

similar in importance to the conducting of a felony trial. And it is clear that a

magistrate judge is not permitted to conduct a felony trial, even with the consent of

the parties. The Supreme Court so reasoned using a canon of statutory

interpretation that gives significance to the careful contours of the authority granted

to magistrates in the Magistrates Act: Expressio unius est exclusio alterius. Gomez

v. United States, 490 U.S. 858, 872, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) ( “[T]he

carefully defined grant of authority to conduct trials of civil matters and of minor

criminal cases should be construed as an implicit withholding of the authority to

preside at a felony trial.”).

That same limiting principle leads us to our conclusion that the acceptance of

a guilty plea in a felony case, a task no less important, is also not authorized by the

statute. In accepting Harden's guilty plea, even with his consent, the magistrate

judge violated the Federal Magistrates Act.

U.S. v. Harden, supra, at 889.

After holding that Harden’s guilty plea before the magistrate violated the Federal

Magistrates Act, the Seventh Circuit noted that its ruling was in conflict with those of other

circuits:

We note that our reasoning places us in conflict with several of our sister

circuits. There is widespread agreement that a magistrate judge may conduct a Rule

11(b) colloquy for the purpose of making a report and recommendation. See,

e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1119-22 (9th Cir.2003) (en

banc); United States v. Torres, 258 F.3d 791, 796 (8th Cir.2001); United States v. Dees,

125 F.3d 261, 263, 265 (5th Cir.1997); United States v. Williams, 23 F.3d 629, 631-34

10

(2d Cir.1994). We agree that this is a permissible practice (and are told that the

district court for the Southern District of Illinois now delegates the conduct of a plea

colloquy to a magistrate judge only when a report and recommendation on the plea is

sent back to the district judge). Several circuits go further and authorize magistrate

judges to accept felony guilty pleas with the parties' consent. See United States v.

Benton, 523 F.3d 424, 431-32 (4th Cir.2008); United States v. Woodard, 387 F.3d 1329,

1332-33 (11th Cir.2004); United States v. Ciapponi, 77 F.3d 1247, 1250-52 (10th

Cir.1996). Those courts place great import on the statement in Peretz that “Congress

intended to give federal judges significant leeway to experiment with possible

improvements in the efficiency of the judicial process....” 501 U.S. at 932, 111 S.Ct.

2661.

The desire to make more efficient the district courts' management of large

criminal caseloads is understandable. These days, over 97% of criminal convictions are

the result of guilty pleas. See “Statistical Tables for the Federal Judiciary,” Table D-4

(June 2013), available at

http://www. uscourts.gov/uscourts/Statistics/StatisticalTables ForTheF ederalJudiciary/2013/ju

ne/D04 Jun13.pdf (visited July 14, 2014) (finding that of 84,060 total criminal convictions

in a twelve-month period, 81,955 were the result of guilty pleas). Truly, “criminal justice

today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, —

US. , 132 S.Ct. 1376, 1388, 182 L.Ed.2d 398 (2012). Yet, the prevalence of guilty pleas

does not render them less important, or the protections waived through them any less

fundamental. A felony guilty plea is equal in importance to a felony trial leading to a

verdict of guilty. And without explicit authorization from Congress, the district court

cannot delegate this vital task. The authority to experiment set forth in Peretz is bounded;

the Court has never suggested that magistrate judges, with the parties' consent, may

perform every duty of an Article III judge, regardless of the duty's importance.

U.S. v. Harden, supra, at 891-892.

As noted by the Seventh Circuit above, the Ninth, Eighth, Fifth, and Second Circuits all

allow a magistrate judge to conduct a Rule 11(b) colloquy for the purpose of making a report and

recommendation to the district judge, with the district judge ultimately accepting or rejecting the

plea, which the Seventh Circuit agrees is a permissible practice. However, the Seventh Circuit

also noted that the Fourth, Eleventh, and Tenth Circuits go further and authorize magistrate

judges to accept felony guilty pleas with the parties’ consent, which the Seventh Circuit does not

deem a permissible practice. As to those Circuits which allow a magistrate judge to conduct a

change of plea hearing and make a report or recommendation to the district judge, it is obvious

hil

that those Circuits agree with the Seventh Circuit that a magistrate judge does not have authority

to accept a guilty plea and adjudge a defendant guilty of a felony. Accordingly, the Second,

Fifth, Seventh, Eighth, and Ninth Circuits all agree that a magistrate judge does not have

authority to accept a guilty plea and adjudge guilt, while the Fourth, Eleventh, and Tenth Circuit

find that a magistrate judge does have such authority. So there is certainly a serious split among

the Circuit Courts of Appeal that must be resolved by the United States Supreme Court.

In the Tenth Circuit opinion in the matter at bar, the Court of Appeals stated the

following:

Qualls points us to two cases that, in his view, demonstrate a magistrate judge

lacks authority to accept a guilty plea: United States v. Arami, 536 F.3d 479 (5th Cir.

2008), and United States vy. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015). Neither case,

however, stands for this proposition. In both cases, the magistrate judges only

recommended that the district court accept the defendants’ pleas—and the defendants

moved to withdraw their guilty pleas before the district court had formally adopted

the magistrate judges’ recommendations. Davilla-Ruiz, 790 F.3d at 250; Arami, 536

F.3d at 481. Accordingly, both courts allowed the defendants to withdraw their pleas

because the pleas had not, in fact, been accepted by either a magistrate judge or a

district court judge. Davilla-Ruiz, 790 F.3d at 250; Arami, 536 F.3d at 482-83. These

cases thus involved a straightforward application of Rule 11(d)(1): when a magistrate

judge only recommends the district court accept a plea but does not actually accept it,

the defendant can withdraw the plea anytime before the district court formally

accepts it.

U.S. v. Qualls, supra, at 2.

All due respect to the holding by the Tenth Circuit stated above, Mr. Qualls, however,

believes that those two cases, Arami and Davila-Ruiz, are relevant, in that each of those are

instances, one in the First Circuit and the other in the Fifth Circuit, where the magistrate judge

was not allowed to accept a guilty plea and adjudge guilt, but simply allowed to conduct a Rule

11(b) colloquy for the purpose of making a report and recommendation to the district judge, with

only the district judge allowed to accept the plea and adjudge guilt. If the First Circuit and Fifth

Circuit agreed with the Tenth Circuit, then the magistrate judges in those instances would have

12

accepted the guilty pleas and adjudged guilt, not simply issued reports and recommendations to

the district judge.

In US. v. Arami, 536 F.3d 479 (5" Cir. 2008), Arami was indicted on five counts

stemming from a conspiracy to transport illegal aliens for purposes of prostitution. The

Government offered to drop counts one through four if Arami would plead guilty to count five.

Arami agreed. He then consented to having his Rule 11 plea hearing and entering his plea before

a magistrate judge, and pleaded guilty to count five. Prior to sentencing and acceptance of the

plea by the district court, Arami moved to withdraw his plea. The district court subsequently held

a hearing on the motion to withdraw the plea and denied it, and the court then adopted the

magistrate’s report and recommendation and formally accepted Arami’s guilty plea.

On appeal, the Fifth Circuit reversed, finding that the district court should have allowed

Arami to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(1).

The Court of Appeals stated the following:

Federal Rule of Criminal Procedure 11(d) provides, “A defendant may

withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea,

for any reason or no reason ....” FED.R.CRIM.P. 11(d). Therefore, “{u|]nder Rule

11(d)(1) ... the district court has no discretion to deny a pre-acceptance withdrawal

of a guilty plea.” United States v. Jones, 472 F.3d 905, 908 (D.C.Cir. 2007). Before

the 2002 amendments to the Rules, there was no explicit provision governing a

defendant's withdrawal of a plea before the court accepted it. See United States v.

Lopez, 385 F.3d 245, 250 n.8 (2d Cir. 2004). Rule 11(d)(1) now allows withdrawal as a

matter of right. Jd. Once the court accepts the defendant's plea, however, the

defendant may withdraw that plea before sentencing only if the court rejects a plea

agreement under Rule 11(c)(5) or if “the defendant can show a fair and just reason

for requesting the withdrawal.” FED.R.CRIM.P. 11(d)(2). A defendant may not

have a guilty plea set aside after the court has imposed a sentence except on direct

appeal or collateral attack. FED.R.CRIM.P. 11(e).

U.S. vy. Arami, supra, at 482.

In citing the Eighth Circuit precedent of U.S. v. Lozano, 63 Fed.Appx 962 (8th

Cir.2003), the Fifth Circuit went on to state:

13

We have not previously had the occasion to expound upon the meaning

of Rule 11(d)(1). The most analogous case is an unpublished decision from the

Eighth Circuit. See United States v. Lozano, 63 Fed. Appx. 962 (8" Cir. 2003 (per

curiam). There, the defendant appeared before a magistrate judge and pleaded

guilty to a drug charge. Id. at 962. The magistrate judge issued a report

recommending that the district court accept the defendant's guilty plea. Jd. Thirteen

days later, before the district court accepted the guilty plea or imposed a sentence,

the defendant moved to withdraw his plea. Jd. The court denied the defendant's

motion. Jd. On appeal, the Eighth Circuit noted that the district court improperly

considered the defendant's request to withdraw his plea under the “fair and just

reason” standard of Rule 11(d)(2), because the district court had not formally

accepted the defendant's plea. Id. at 963. The court reversed, ruling that the

defendant had an absolute right to withdraw his plea under Rule 11 (d)(1), and

remanded the case to allow the defendant to withdraw his guilty plea and proceed to

trial. Id.

U.S. v. Arami, supra, at 482.

Accordingly, because Mr. Qualls had the absolute right to withdraw his guilty pleas prior

to their acceptance by the District Court under Rule 11(d)(1), the District Court erred in denying

his motion to withdraw his guilty pleas, and the Tenth Circuit erred in affirming the District

Court.

The First Circuit recently addressed this issue in U.S. v. Davila-Ruiz, 790 F.3d 249 (1st

Cir. 2015). Davila-Ruiz was indicted in the United States District Court for the District of Puerto

Rico with attempted carjacking and use of a firearm during a crime of violence. He entered into

a plea agreement, and a change of plea hearing was held before a magistrate judge. At the

hearing, Davila-Ruiz signed a form giving consent to proceed before the magistrate judge, which

stated the following:

I HEREBY: Waive (give up) my right to trial before a United States District

Judge and express my consent to proceed before a Magistrate—Judge while I plead

guilty (Rule 11 proceedings) and the entry of a judgment of conviction upon the

Magistrate—Judge's recommendation. I understand that sentence will be imposed by

a District Judge.

14

After Davila-Ruiz entered his plea, the magistrate judge issued a written report and

recommendation (the R&R). The R&R contained a recommendation that the district court

accept the plea. Prior to the district court accepting the plea, however, Davila-Ruiz filed a

motion to withdraw his plea. Citing Rule 11(d)(1), he claimed that because the court had not yet

accepted his guilty plea, he had an absolute right to withdraw it. The government objected,

arguing that the magistrate judge had authority to accept the defendant's guilty plea; that Rule

11(d)(2)(B) therefore governed; and, that the defendant would have to show a “fair and just

reason” in order to withdraw his plea under that rule. The district court sided with the

government: it noted that it had reviewed the change-of-plea transcript and that the plea had been

“adequately and thoroughly taken,” with the result that Rule 11(d)(1) was no longer available.

Since the defendant had not proffered a fair and just reason for withdrawing his plea, the court

denied the plea-withdrawal motion and thereafter denied a motion for reconsideration.

Davila-Ruiz appealed the denial of his motion to withdraw his plea pursuant to Rule

11(d)(1). The First Circuit agreed, and vacated his guilty plea and conviction, remanding to the

District Court.

The First Circuit stated the following:

Rule 11(d)(1) is clear as a bell: it renders a district court powerless to deny a

plea-withdrawal motion when the motion is made before the plea has been

accepted. See, e.g., United States v. Arami, 536 F.3d 479, 481 (s" Cir. 2008); Jones,

472 F.3d at 908 [citing United States v. Jones, 472 F.3d 905 (D.C. Cir. 2007)]. In this

case, the defendant asseverates that he filed his plea-withdrawal motion prior to the

time that the district court accepted his plea and that, therefore, the court had no

choice but to grant the motion without regard to his reasons for seeking such relief.

For all practical purposes, then, the question reduces to whether the undisputed

chain of events requires a finding that the plea was accepted before the defendant

moved to withdraw it.

U.S. v. Davila-Ruiz, supra, at 252.

The Court of Appeals also stated:

15

We recognize that Rule 11 does not specify how a plea is to be

accepted. See United States v. Battle, 499 F.3d 315, 321 (4 Cir. 2007). Sometimes,

the use of equivocal language during a change-of-plea colloquy may complicate the

issue. See Byrum, 567 F.3d at 1259-64 [citing United States v. Byrum, 567 F.3d 1255,

1258-59 (1 o" Cir. 2009)]; Jones, 472 F.3d at 909; United States v. Head, 340 F.3d 628,

630-31 (8th Cir. 2003). Here, however, there was nothing equivocal about the

magistrate judge's statements and actions; those statements and actions were crystal

clear. During the hearing, the magistrate judge said that she would recommend that

the district court accept the plea and she proceeded to do just that. Because the

magistrate judge merely recommended acceptance of the plea rather than actually

accepting it, further action by the district court was needed. See Arami, 536 F.3d at

485; Torres-Rosario, 447 F.3d at 67[United States v. Torres-Rosario, 447 F.3d 61, 65

(1* Cir. 2006); United States v. Reyna-T. apia, 328 F.3d 1114, 1121 (9 Cir. 2003 (en

banc).

U.S. v. Davila-Ruiz, supra, at 252.

As noted by the First Circuit in Davila-Ruiz, Rule 11(d)(1) is clear as a bell: it renders the

District Court powerless to deny a plea-withdrawal motion when the motion is made before the

plea has been accepted. In the matter at bar, Mr. Qualls moved to withdraw his guilty plea prior

to its acceptance by the District Court. Accordingly, the District Court erred in denying his

motion to withdraw his guilty plea, and the Tenth Circuit erred in affirming the District Court.

In conclusion, the issue in the matter at bar is one where there is a serious split among the

Circuits that must be resolved by the United States Supreme Court. It is Petitioner’s contention

that the Tenth Circuit’s position on the issue is erroneous, that the opposite position of the

Seventh Circuit and other Circuits is correct, and therefore a Writ of Certiorari to the Tenth

Circuit must be issued by the Supreme Court.

k. Appendix:

i. Opinion delivered upon the rendering of judgment by the Tenth

Circuit Court of Appeals, which is the subject of this Petition: U.S. v. Jim Walter Qualls, Jr., 10"

Cir. No. 17-2046, opinion dated July 12, 2018.

il. Any other opinions rendered in the case necessary to ascertain the

grounds of judgment: None

16

ill. Any order on rehearing: None

iv. Judgment sought to be reviewed other than opinion referenced in (1):

None

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that a Writ of Certiorari issue

for review of the Order and Judgment of the United States Court of Appeals for the Tenth Circuit

in U.S. v. Jim Walter Qualls, Jr., No. 17-2046 (10" Cir., July 12, 2018).

Respectfully submitted,

>: ie:

BY: /s/ J. Lance Hopkins

J. Lance Hopkins, OBA#14852

CJA Appellate Panel Attorney

219 W. Keetoowah

Tahlequah, OK 74464

(918) 456-8603

(918) 456-1407 (fax)

Lance.Hopkins@lunalunallp.net

bacaviola@yahoo.com

Counsel for Petitioner

Jim Walter Qualls, Jr.

17

CERTIFICATE OF COMPLIANCE

As required by Fed.R.App. P.32(a)(7)(C), I certify that this petition for certiorari is

proportionally spaced and contains 4,625 words. I relied on Microsoft Word count to obtain

word count, and I used Times New Roman, 12 pt.

I certify that the information on this form is true and correct to the best of my knowledge

and belief formed after a reasonable inquiry.

/s/ J. Lance Hopkins

J. Lance Hopkins

18

FILED

Appellate Case: 17-2046 Document: 010110021549 Date Filed: Uatitede States Couge of Appeals

Tenth Circuit

July 12, 2018

Elisabeth A. Shumaker

TENTH CIRCUIT Clerk of Court

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv. No. 17-2046

(D.C. No. 5:14-CR-03519-RB-1)

JIM WALTER QUALLS, JR., (D. N.M.)

Defendant-Appellant.

ORDER AND JUDGMENT’

Before TYMKOVICH, Chief Judge, MORITZ, and EID, Circuit Judges.

Jim Walter Qualls, Jr. pleaded guilty to producing child pornography. Yet

after a magistrate judge accepted the plea, Qualls had a change of heart and

moved to withdraw his plea. The district court denied the motion. Qualls

appealed, arguing the district court erred for two reasons. He first contends the

district court should have allowed him to withdraw his plea for any reason

because he moved to withdraw the plea before it had been formally accepted. If

" This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 2

the plea had been accepted, Qualls argues the district court should have permitted

him to withdraw it because he did not knowingly and voluntarily plead guilty.

We affirm. Qualls could not withdraw his plea for any reason because the

magistrate judge accepted the plea before Qualls moved to withdraw it. And it is

well settled in this circuit that magistrate judges have the authority to conduct

plea hearings and enter pleas in felony cases. Further, the district court did not

abuse its discretion when it concluded Qualls entered his plea knowingly and

voluntarily.

I. Background

Acting on a tip, Department of Homeland Security agents went to Qualls’s

residence to execute a federal search warrant relating to a child pornography

investigation. During the incident, Qualls waived his Miranda rights and admitted

to taking nude photographs of his then three-year-old daughter, uploading these

pictures to the Internet, and emailing with others to trade images of his daughter

for images of other children engaged in sexual conduct.

A grand jury indicted Qualls on four counts of production of child

pornography. With Qualls’s criminal history, he faced between 25 and 50 years

of imprisonment on each count, and the sentences could run consecutively.

Qualls agreed to plead guilty. He then appeared for a hearing in front of a

magistrate judge and signed a consent form to waive his right to have his guilty

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page:

plea taken by a United States District Court judge. During the hearing, the

magistrate judge confirmed that Qualls had discussed the form with his attorney

and voluntarily signed it. The discussion then moved to the length of Qualls’s

potential sentence. The government explained there was a disagreement. The

government contended the maximum sentence for each count was 50 years’

imprisonment due to Qualls’s past conviction for enticement of a child. In

contrast, the defense posited the sentence would carry a maximum of 30 years per

count. After confirming he understood the consequences of sentencing and the

possibility the government’s position was correct, Qualls pleaded guilty to all

four counts.

Later, however, Qualls filed a pro se motion to withdraw the guilty plea

after his counsel withdrew due to a conflict of interest. With the help of new

counsel, Qualls filed an amended motion that argued he could withdraw his guilty

plea for two reasons. He based his first argument on Federal Rule of Criminal

Procedure 11(d)(1), which allows defendants to withdraw guilty pleas for any

reason before they are accepted. In Qualls’s view, only district courts have the

authority to accept guilty pleas; federal magistrate judges, he contended, lack this

power. Accordingly, since his plea had only been accepted by a magistrate judge,

Qualls argued the plea had never been formally accepted, and he could

consequently withdraw it for any reason. If his plea had been accepted, Qualls

contended Federal Rule of Criminal Procedure Rule 11(d)(2)(B) allowed him to

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Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 4

withdraw the plea because he had a “fair and just reason” for doing so—namely,

that he would move to suppress his post-arrest statements to law enforcement if

the plea were withdrawn.

The district court denied the motion because, in its view, the magistrate

judge possessed the authority to accept Qualls’s plea, and Qualls had not shown a

fair and just reason for withdrawal. The court then sentenced Qualls to four

consecutive sentences of 50 years, for a total of 200 years imprisonment.

II. Analysis

Qualls contends the district court erred in denying his motion to withdraw

his guilty plea. He first argues he could withdraw the plea for any reason because

the magistrate judge lacked the power to formally accept it. Qualls also argues he

demonstrated a fair and just reason to withdraw the plea.

A, Qualls Could Not Withdraw His Plea For Any Reason

“(Before the court accepts” a defendant’s guilty plea, the defendant can

withdraw it “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). But “after

the court accepts the plea,” a defendant can only withdraw it if he “can show a

fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).

Qualls contends the district court should have allowed him to withdraw his

guilty plea for any reason because the court had not yet accepted the plea when he

moved to withdraw it. But the record reveals that before Qualls moved to the

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 5

withdraw his plea, the magistrate judge had accepted it. App. 78-79 (“I hereby

accept your pleas of guilt and I now adjudge you guilty of each of the crimes in

your indictment.”). Thus, Qualls could only withdraw his guilty plea if he could

demonstrate a fair and just reason for doing so.

Yet Qualls insists the magistrate judge did not—and indeed could

not—have accepted his plea because the magistrate lacked the authority to do so.

At bottom, Qualls contends only United States District Court judges possess the

power to formally accept guilty pleas. Our precedent, however, squarely

forecloses this argument. We have held that “with a defendant’s express consent,

the broad residuary ‘additional duties’ clause of the Magistrates Act authorizes a

magistrate judge to conduct a Rule 11 felony plea proceeding, and such does not

violate the defendant’s constitutional rights.” United States v. Salas-Garcia, 698

F.3d 1242, 1253 (10th Cir. 2012) (emphasis added) (quoting United States v.

Ciapponi, 77 F.3d 1247, 1251 (10th Cir. 1996)). Thus, “[m]agistrate judges have

the authority to conduct plea hearings and accept guilty pleas.” Jd. In so

concluding, we recognized that Congress authorized these duties by magistrate

judges, but to the extent any constitutional ambiguity remained, “the consent

requirement—fulfilled in this case—saves the delegation” from doubt. United

States v. Williams, 23 F.3d 629, 633 (2d Cir. 1994) (relied on by Ciapponi);

accord United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); United

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 6

States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125

F.3d 261, 267 (5th Cir. 1997).'

Despite this, Qualls points us to two cases that, in his view, demonstrate a

magistrate judge lacks authority to accept a guilty plea: United States v. Arami,

536 F.3d 479 (5th Cir. 2008), and United States v. Davila-Ruiz, 790 F.3d 249 (1st

Cir. 2015). Neither case, however, stands for this proposition. In both cases, the

magistrate judges only recommended that the district court accept the defendants’

pleas—and the defendants moved to withdraw their guilty pleas before the district

court had formally adopted the magistrate judges’ recommendations. Davilla-

Ruiz, 790 F.3d at 250; Arami, 536 F.3d at 481. Accordingly, both courts allowed

the defendants to withdraw their pleas because the pleas had not, in fact, been

accepted by either a magistrate judge or a district court judge. Davilla-Ruiz, 790

F.3d at 250; Arami, 536 F.3d at 482-83. These cases thus involved a

straightforward application of Rule 11(d)(1): when a magistrate judge only

recommends the district court accept a plea but does not actually accept it, the

defendant can withdraw the plea anytime before the district court formally accepts

it.

| We realize Qualls believes “Salas-Garcia is an erroneous application of

Rule 11(d)(1).” Aplt. Br. at 30. But “[w]e are bound by the precedent of prior

panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999)

(quoting Jn re Smith, 10 F.3d 723, 724 (10th Cir. 1993)).

atts

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page:

But here, in stark contrast to Davilla-Ruiz and Arami, the magistrate judge

formally accepted the guilty plea, rather than merely recommending its

acceptance. App. 78-79 (“I hereby accept your pleas of guilt and I now adjudge

you guilty of each of the crimes in your indictment.”). Thus, Davilla-Ruiz and

Arami are not factually on point. And more fundamentally, neither case suggests

magistrates lack the authority to accept guilty pleas.

Thus, the district court properly held that Qualls could not withdraw his

guilty plea for any reason pursuant to Rule 11(d)(1) because the magistrate judge

had formally accepted the plea.

B. Qualls Knowingly and Voluntarily Pleaded Guilty

Qualls next argues he did not knowingly and voluntarily plead guilty

because he received no benefit or consideration in exchange for his plea.

1. Forfeiture and Waiver

As an initial matter, Qualls forfeited this argument because he did not raise

it before the district court. He then waived the argument by not arguing for plain

error review on appeal.

Defendants forfeit arguments they fail to raise before the district court. See

Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011)

(explaining that if a “theory simply wasn’t raised before the district court, we

usually hold it forfeited”). We can consider forfeited arguments on appeal, but

only under the plain error standard of review. Jd. Crucially, though, ifa

7s

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 8

defendant “‘fail{s] to argue for plain error and its application on appeal,” he

waives the argument before this court. See id. at 1331; McKissick v. Yuen, 618

F.3d 1177, 1189 (10th Cir. 2010) (concluding that if a defendant forfeits an

argument and then fails to “explain in her opening appellate brief... how they

survive the plain error standard,” this “waives the argument[] in this court”),

Applying this standard here, Qualls’s sole argument before the district

court was that he wanted to contest “the statement that was provided implicating

him in the instant offense.” App. 17. He never referenced the voluntary or

willing nature of his plea. Qualls therefore forfeited any challenge to his plea on

that basis. And when Qualls raised this argument for the first time on appeal, he

waived it because his briefing made no mention of the plain error standard of

review,

2. Merits

Even if Qualls had not forfeited the argument, we would still conclude the

district court did not abuse its discretion in denying the motion to withdraw.

When, as here, the court accepted the defendant’s plea, the defendant can

only withdraw the plea if he can “show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To evaluate whether the defendant

has satisfied this burden, we examine a number of non-exclusive factors—often

called the “Gordon factors”:

(1) whether the defendant asserted his innocence,

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(2) whether the plea was knowing and voluntary,

(3) whether defendant was assisted by counsel,

(4) whether the defendant delayed filing his motion and,

if so, why,

(5) whether withdrawal would prejudice the government,

(6) whether withdrawal would substantially inconvenience the

court, and

(7) whether withdrawal would waste judicial resources.

United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993); see United States v.

Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007). More recent cases also instruct

us to consider an eighth factor of whether the government would be likely to

convict the defendant at trial. United States v. Sanchez-Leon, 764 F.3d 1248,

1258 (10th Cir. 2014). We “review the district court’s application of the Gordon

factors for abuse of discretion, with the exception of two factors which we review

de novo: whether the plea was knowing and voluntary and, if reviewable on direct

appeal, whether counsel provided effective assistance.” United States v.

Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016).

The district court found that Qualls was not entitled to withdraw his plea

based on any of the first three factors. These factors are the most important in

our evaluation and are frequently dispositive. See United States v. Byrum, 567

F.3d 1255, 1265 (10th Cir. 2009) (“[A] court need not address the prejudice to the

government, the timing of the defendant’s motion, the inconvenience to the court,

or the waste of judicial resources factors ‘unless the defendant establishes a fair

Appellate Case: 17-2046 Document: 010110021549 Date Filed: 07/12/2018 Page: 10

and just reason for withdrawing his guilty plea’ in the first instance.” (quoting

Hamilton, 510 F.3d at 1217)).

Qualls contests only the second factor: he argues he did not plead guilty

knowingly and voluntarily. In making this argument, he relies on general

principles of contract law. He contends he received no consideration in exchange

for his offer to plead guilty, such as a reduced sentence. This lack of

consideration, he claims, proves he “did not knowingly and voluntarily enter the

plea.” Aplt. Br. at 12.

Qualls is right that if defendants enter plea agreements with the

government, some circuits apply ordinary contract interpretation principles and

require consideration. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir.

2004) (per curiam) (“[A] guilty plea can be challenged for contractual invalidity,

including invalidity based on a lack of consideration.” (citing United States v.

Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994))). Critically, though, in these

cases courts employ contract interpretation principles to analyze plea agreements

with the government. And here, Qualls did not enter a plea agreement with the

government. Thus, consideration could not have been required because there was

no “contract” between Qualls and the government—Qualls simply pleaded guilty.

He also claims he did not plead knowingly and voluntarily because “[e]ven

with the assistance of counsel, [he] did not understand that he was looking ata

life sentence as a consequence of his plea... .” Aplt. Br. at 16. But the

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magistrate judge specifically asked Qualls whether he fully understood that he

could be sentenced to “200 years” in prison and would definitely face at least “15

years” of imprisonment on each of the four counts—the mandatory minimum,

App. 71. Qualls affirmatively responded to the court’s inquiry, confirming he

understood he could be facing an effective life sentence.

Finally, Qualls points to United States v. Romero, 360 F.3d 1248 (10th Cir.

2004), and United States v. Fard, 775 F.3d 939 (7th Cir. 2015), claiming these

cases generally support his right to withdraw under Rule 11(d)(2)(B) for “a fair

99

and just reason.” But neither case involved remotely similar facts.

In Romero, the defendant was mistakenly indicted after the government

promised not to prosecute him in federal court in exchange for his cooperation.

We held the district court is required to uphold and enforce the agreements

between the defendant and the government. Romero, 360 F.3d at 1253-54. That

case bears no resemblance to the facts here, however, because Qualls possessed

no plea agreement with the government.

Fard, a Seventh Circuit decision, is equally inapplicable. There, the court

held the defendant did not knowingly and voluntarily plead guilty because he did

not know or understand the elements of the crime he pleaded guilty to. Fard, 775

F.3d at 943-44. But Qualls does not claim he did not understand the elements of

the crimes listed in his guilty plea. He instead claims he did not understand the

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consequences of his plea—that he was receiving an effective life sentence with no

consideration in exchange. Thus, Fard is inapplicable.

In sum, the district court did not abuse its discretion when it concluded

Qualls did not proffer a “fair and just reason” for withdrawing his guilty plea.

III. Conclusion

We therefore AFFIRM the district court’s denial of Qualls’s motion to

withdraw his guilty plea.

ENTERED FOR THE COURT

Timothy M. Tymkovich

Chief Judge

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