761 F.2d 275 (6th Cir. 1985), 83-1046, Wilson v. Mintzes

Docket Nº:83-1046.
Citation:761 F.2d 275
Party Name:Roy WILSON, Petitioner-Appellant, v. Barry MINTZES, Respondent-Appellee.
Case Date:May 01, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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761 F.2d 275 (6th Cir. 1985)

Roy WILSON, Petitioner-Appellant,


Barry MINTZES, Respondent-Appellee.

No. 83-1046.

United States Court of Appeals, Sixth Circuit

May 1, 1985

Argued Jan. 18, 1984.

Rehearing and Rehearing En Banc Denied June 17, 1985.

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[Copyrighted Material Omitted]

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John R. Minock (court-appointed), Detroit, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Michigan, J. Peter Lark, Lansing, Mich., for respondent-appellee.

Before ENGEL, MARTIN and CONTIE, Circuit Judges.

CONTIE, Circuit Judge.

On May 4, 1984, we reversed the district court's denial of petitioner Roy Wilson's petition for a writ of habeas corpus and remanded to the district court with instructions that the writ be granted. Wilson v. Mintzes, 733 F.2d 424 (6th Cir.1984). The Supreme Court of the United States granted respondent Mintzes' petition for a writ of certiorari, vacated our judgment and remanded the case for consideration in light of Strickland v. Washington, 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 1 For the reasons that follow, we reaffirm our earlier judgment.


Petitioner Wilson contended in seeking a writ of habeas corpus that the trial judge's failure to grant a continuance to allow him to retain substitute counsel when he expressed dissatisfaction with the conduct of his counsel at trial deprived him of his sixth amendment right to counsel. We found that counsel's conduct at trial constituted good cause to warrant substitution of counsel and that Wilson was prejudiced by counsel's attempt to remove himself from the case in front of the jury and by his refusal to cross-examine the officer in charge of the investigation. 2

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The sixth amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

While the plain language of the amendment simply guarantees a defendant "the Assistance of Counsel for his defence," such language encompasses a guarantee of the right to self-representation, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1974), the right of indigents to appointed counsel in felony prosecutions, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.1984) (en banc ) (sixth amendment right to counsel has four components: right to have counsel, minimum quality of counsel, a reasonable opportunity to select and be represented by chosen counsel, and right to preparation period sufficient to assure minimum quality counsel); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). Additionally, although much sixth amendment jurisprudence has been concerned with the rights of indigent defendants, an accused who desires to and is financially able "should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954) ("[A] defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth."); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) ("Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected."); Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed. 34 (1979) ("An essential element of the Sixth Amendment's protection of the right to the assistance of counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing."). 3 Contra Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir.1982). Therefore, "[w]hen a court unreasonably

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denies defendant counsel of choice, the denial can rise to the level of a constitutional violation." Birt, 725 F.2d at 592; United States v. James, 708 F.2d 40, 44 (2d Cir.1983). The denial of an accused's right to counsel of his choice "may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment...." Glasser, 315 U.S. at 70, 62 S.Ct. at 464.

Likewise, our court has long recognized the accused's right to retain counsel of his choice. 4 Linton v. Perini, 656 F.2d 207, 208-09 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982) (right to counsel of one's choice is guaranteed by due process as well as sixth amendment); United States v. Phillips, 699 F.2d 798, 801 (6th Cir.1983), overruled on other grounds, United States v. Tosh, 733 F.2d 422 (6th Cir.1984) ("The Sixth Amendment right to counsel includes the right of a defendant in a criminal case to be represented by counsel of his choosing."); United States v. Reese, 699 F.2d 803, 805 (6th Cir.1983); Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 (1975) (right to assistance of counsel "implies a degree of freedom to be represented by counsel of defendant's choice."). "The right to choose one's own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut." Linton, 656 F.2d at 209.

While recognizing that the accused's right to retain counsel of his choice is necessary to maintaining a vigorous adversary system and the objective fairness of the proceeding in which the accused is prosecuted, United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), recognition of the right also reflects constitutional protection of the accused's free choice independent of these concerns. See Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 288 (1984). 5 Many of the concerns supporting an accused's right to choose to represent himself also support an accused's right to counsel of choice. 6 Conceding that an accused has the right to assistance of counsel at trial as well as the fundamental and

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personal nature of that right, 7 it is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State.


While an accused's right to choose counsel to assist him at trial is an essential component of the sixth amendment right to assistance of counsel, it is beyond peradventure that such right is not absolute. 8 Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir.1984); Urquhart, 726 F.2d at 1319; Birt, 725 F.2d at 593; James, 708 F.2d at 44; United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980); Mardian, 546 F.2d at 979 n. 9; Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Ramey, 559 F.Supp. 60, 62 (E.D.Tenn.1981). When an accused seeks substitution of counsel in mid-trial, he must show good cause such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict with his attorney in order to warrant substitution. United States v. Brown, 744 F.2d 905, 908 n. 2 (2d Cir.1984); United States v. Morris, 714 F.2d 669, 673 (7th Cir.1983); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); United States v. Hart, 557 F.2d 162, 163 (8th Cir.), cert. denied, 434 U.S. 906, 98 S.Ct. 305, 54 L.Ed.2d 193 (1977) (to warrant substitution, accused must show justifiable dissatisfaction with counsel). See generally United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973) ("if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right").

Consideration of such motions requires a balancing of the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice. 9 Linton, 656 F.2d at 209; Urquhart, 726 F.2d at 1319; Reese, 699 F.2d at 805 (disqualification order); Phillips, 699 F.2d at 801-02; Burton, 584 F.2d

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at 489; Gandy, 569 F.2d at 1323; Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir.1971), cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793 (1972). However, "a trial court, acting in the name of calendar control, cannot arbitrarily and unreasonably interfere with a client's right to be represented by the attorney he has selected." Linton, 656 F.2d at 209.

Whether a continuance is appropriate in a particular case depends on the facts and circumstances of that case, Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); Morris, 461 U.S. at 11-12, 103 S.Ct. at 1615-16, with the trial judge considering the length of delay, previous continuances, inconvenience to litigants, witnesses, counsel and the court, whether the delay is purposeful or is caused...

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