Fuller v. Diesslin

• Citation: 868 F.2d 604
• Decision Date: 24 March 1989
• Docket Number: No. 88-5456,88-5456
• Parties: Glen FULLER, Appellee, v. Warren DIESSLIN, Superintendent of Buena Vista Correctional Facility, Buena Vista, Colorado and W. Cary Edwards, Attorney General for State of New Jersey, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 604

868 F.2d 604

57 USLW 2535

Glen FULLER, Appellee, v. Warren DIESSLIN, Superintendent of Buena Vista Correctional Facility, Buena Vista, Colorado and W. Cary Edwards, Attorney General for State of New Jersey, Appellants.

No. 88-5456.

United States Court of Appeals Third Circuit.

Argued Oct. 31, 1988.

Decided Feb. 24, 1989.

Rehearing and Rehearing In Banc Denied March 24, 1989.

Alan Sibler (argued), Mark B. Gombiner, Hayden, Perle and Silber, New York City, for appellee.

Debra L. Stone, Deputy Atty. Gen. (argued), Div. of Criminal Justice, Appellate Section, and W. Cary Edwards, Atty. Gen. of New Jersey, Trenton, N.J., for appellants.

Before GIBBONS, BECKER and WEIS, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from an order of the district court granting a writ of habeas corpus to a state prisoner on the ground that he was arbitrarily denied the right to counsel of his choice by a New Jersey state court before which he appeared on drug and weapons charges. Petitioner, Glen Fuller, had New Jersey counsel, who moved for admission pro hac vice of two out-of-state lawyers who were prepared to try Fuller's case. Without a hearing or making particularized findings, the state trial court denied Fuller's request, reasoning that local counsel was competent and that unacceptable trial delay was likely with two out-of-state counsel. Upon pleading guilty, Fuller reserved the right to raise the counsel of choice issue on appeal. Appellate relief in the state court was denied, thereby exhausting state remedies and setting the stage for the habeas petition.

New Jersey appeals the district court's decision granting the writ. The appeal raises the question whether a trial court, which presumes that the proceedings will be unacceptably delayed where the defendant is represented by out-of-state counsel, and denies counsel of choice on that basis alone (assuming the existence of competent local counsel), has arbitrarily denied the right to counsel of choice and therefore violated defendant's sixth amendment right to counsel. Although New Jersey argues strongly, see infra Typescript at 9-12, that our precedents in United States v. Romano, 849 F.2d 812 (3d Cir.1988) and United States v. Rankin, 779 F.2d 956 (3d Cir.1986), should be reevaluated in light of the Supreme Court's recent decision in Wheat v. United States, --- U.S. ----, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), we do not believe that that case may be read as overruling these cases, which control the question, and hence we will affirm. ¹

I. FACTS AND PROCEDURAL HISTORY

On November 14, 1980, Glen Fuller was a passenger in a car driven by Douglas Chappee, which was stopped for speeding in New Jersey. A search of the car turned up a large quantity of cocaine and about a pound of marijuana. Fuller and Chappee were subsequently indicted by a grand jury on three counts of possession of a controlled dangerous substance and one count each of possession of a controlled dangerous substance with intent to distribute and unlawful possession of a weapon. On motion to the New Jersey Superior Court (the trial court), Fuller requested, through local counsel, that he be represented pro hac vice by a lawyer from Illinois and another from the District of Columbia. The trial judge based his denial of Fuller's motion on his belief that local counsel was competent, that the case was going to be hotly contested and that two out-of-state counsel would severely inconvenience the proceedings, stating that "the nature of the probable delay ... [that] will occur as a result of this matter ... is so grave as to overcome the 'unfettered' right of defendant to counsel of his own choosing, and accordingly, the motion to admit pro hac is denied." ² Trial Court Trans. of July 9, 1981, at 19-20.

Fuller subsequently requested leave to appeal the trial court's denial of his motion for counsel pro hac vice to the Appellate Division of the Superior Court, and to the Supreme Court of New Jersey, but leave was denied in both instances. Fuller then sought relief in the district court for the District of New Jersey, requesting a temporary restraining order, a preliminary injunction, and a permanent injunction. At that time the court denied relief and abstained in the face of the ongoing state criminal proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). An immediate appeal to this Court was withdrawn, and the trial court proceedings resumed.

In August 1982, a suppression hearing was held before the state trial court. Two years later, on April 10, 1984, Fuller and codefendant Chappee entered conditional retraxit guilty pleas to possession of cocaine with intent to distribute, in exchange for dismissal of the remaining counts and the state's agreement to make no recommendation as to sentence other than that incarceration was necessary. Fuller reserved the right to raise certain legal issues, including the counsel of choice issue, for purposes of appeal. He was sentenced to a term of 20 years in jail and a fine of $20,000.

Fuller appealed to the Appellate Division, which affirmed Fuller's conviction, holding inter alia that the trial court had not abused its discretion in denying Fuller's motion for admission of counsel pro hac vice and further stating that Fuller had "received extremely competent representation both in the trial court and here." State v. Chappee, 211 N.J.Super. 321, 335, 511 A.2d 1197, 1205 (App.Div.1986). The New Jersey Supreme Court denied certification. State v. Fuller, 107 N.J. 45, 526 A.2d 136 (1986).

On June 16, 1987, Fuller filed his habeas petition. See 28 U.S.C. Sec. 2254 (1982). On May 10, 1988, the district court filed an amended opinion and order, granting the writ. The court ruled that: (1) the denial of Fuller's request for counsel pro hac vice deprived Fuller of his right to counsel of choice because the existence of local capable counsel "is not a sufficient reason to overcome [the defendant's] right to counsel of choice"; and (2) that the trial court had erred in making a "rote application" of a "blanket generalization" rather than an individual determination of potential delay based on the facts of this case. Dist.Ct.Op. at 14-15. The court went on to note that the trial court's distinction between in-state and out-of-state attorneys was a "geographical" distinction that made little sense in light of the "reality of a highly mobile bar that has at its disposal modern transportation and communication." Id. at 16. The court held that deprivation of the right to counsel of choice is per se reversible and does not require a showing of prejudice, citing United States v. Laura, 607 F.2d 52, 58 (3d Cir.1979), and United States v. Rankin, 779 F.2d 956, 960 (3d Cir.1986).

Our review of this legal determination of the district court is plenary. See United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.1985); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981).

II. DISCUSSION

A. Does the Right to Counsel of Choice Include a Right to Counsel Pro Hac Vice?

New Jersey challenges the district court's issuance of the writ on the ground that if there is a right to choose out-of- state counsel, that right is not absolute and, at all events, was not improperly denied in this case. At the threshold, we must determine whether the right to counsel of choice encompasses the right to counsel pro hac vice. Neither this Court nor the Supreme Court has explicitly determined whether the right to counsel pro hac vice is included within the right to counsel of choice. The Supreme Court has considered whether an out-of-state attorney has a fourteenth amendment due process right to practice in a state in which he is not a member of the bar and held that there is no such right. See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). The Court, however, made it clear that it had not addressed the issue of whether a litigant's right to counsel of choice includes the right to out-of-state counsel. Leis, 439 U.S. at 442 n. 4, 99 S.Ct. at 701 n. 4.

New Jersey advances no argument why, and we see no reason why, a request for counsel pro hac vice should be treated any differently by a trial court than any other request for counsel of choice. ³ We do have, as the district court noted, "a highly mobile bar that has at its disposal modern transportation and communication." Dist.Ct.Op. at 16. Therefore, the number of occasions on which a defendant will desire to be represented by counsel pro hac vice is frequent and will be increasingly so. Arbitrarily to deny a defendant the right to obtain counsel from outside the state would untowardly limit the possible choices the defendant might have. Thus, we conclude that the right to counsel pro hac vice is encompassed analytically within the right to counsel of choice, and as such should be examined within the analytic framework generally employed in right to counsel of choice cases.

B. Does Arbitrary Denial of Counsel of Choice Require Per Se Reversal?

The sixth amendment guarantees a criminal defendant the right "to have the Assistance of Counsel for his defense." U.S. Const., amend. VI. It is well-settled that a component of this right is the protection of a defendant's opportunity to obtain counsel of choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); Romano, 849 F.2d at 818; Rankin, 779 F.2d at 958; Laura, 607 F.2d at 55-56. The sixth amendment does not, however, "ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat, 108 S.Ct. at 1697; see also Romano, 849 F.2d at 819 ("The right to choose counsel is not unqualified...."); Rankin, 779 F.2d at 958 ("Although the right to representation by chosen counsel is subject to limitations it may not be hindered unnecessarily."); Laura, 607 F.2d at 57 (no absolute right to counsel of choice). Thus, while a defendant's choice may not...