Argued: January 30, 2014.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (5:09-hc-02118-D-JG). James C. Dever III, Chief District Judge.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Denise Walker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas G. Walker, United States Attorney, Rudy A. Renfer, Edward D. Gray, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Judge Gregory wrote the majority opinion, in which Judge Keenan joined. Judge Shedd wrote a dissenting opinion.
GREGORY, Circuit Judge.
Respondent-Appellant Thomas Blackledge has been civilly committed as a sexually dangerous person under the Adam Walsh Child Protection and Safety Act of 2006 (" Adam Walsh Act" ), codified at 18 U.S.C. § § 4247-48. Prior to a hearing on his commitment, Blackledge successfully moved for the appointment of an expert forensic examiner, who opined that he was indeed a sexually dangerous person. Blackledge then sought the appointment of a second expert and an extension of the deadline for discovery. A magistrate judge denied both motions without prejudice, and when counsel renewed the motions after the discovery deadline had passed, the motions were again denied. Citing an internal ethical conflict, Blackledge's attorney later moved to withdraw as counsel, which the magistrate judge denied. Counsel appealed the ruling to the district court and filed a second motion to withdraw, this time also noting that Blackledge had filed a bar complaint against her. The district court denied both the appeal of the magistrate judge's ruling and the second motion to withdraw.
On appeal, Blackledge challenges the denial of the motions to extend and reopen the discovery period, motions to withdraw as counsel, and motions to appoint a second expert. Because we find that the district court abused its discretion in denying the motions to withdraw as counsel, we vacate and remand.
As relevant to these proceedings, we briefly summarize Blackledge's criminal history. In 1960, at age 15, Blackledge was convicted of first-degree murder in Wyoming for bludgeoning his 15-year-old girlfriend to death after she rebuffed his sexual advances. He was sentenced to life imprisonment, but released at age 23 after serving 8 years in state prison. On October 22, 1986, Blackledge was sentenced in the United States District Court for the District of Colorado to 12 years of imprisonment and 5 years of probation for several counts of mailing and producing child pornography. For the same conduct, he was also sentenced to 20 years' imprisonment for sexual exploitation of children in Larimer County, Colorado and in Weld County, Colorado, to run concurrently with his federal sentence. Blackledge also self-reported several undetected incidents of child molestation, involving between eight and twelve child victims ranging from age 5 to age 17.
Following his release, Blackledge violated the terms of his probation by possessing images of nude children on his home computer. He was consequently sentenced
on April 27, 2005 to 6 years' imprisonment by the United States District Court for the District of Colorado. He was also sentenced to 6 years' imprisonment in Weld County, Colorado on May 3, 2004 for one count of sexual exploitation, to run concurrent with the federal sentence for the probation violation. Blackledge had an expected release date of September 23, 2009. On September 15, 2009, however, the Government filed a Certification of a Sexually Dangerous Person (" Certification" ) pursuant to 18 U.S.C. § 4248(a) in the United States District Court for the Eastern District of North Carolina, and his release was stayed.
The court appointed the Federal Public Defender's Office to represent Blackledge, and on March 11, 2011, Sonya Allen (" Attorney Allen" ) entered an appearance on Blackledge's behalf. Attorney Allen moved for the appointment of Dr. Terrence Campbell as an expert forensic examiner, which a magistrate judge granted on August 4, 2011. After interviewing Blackledge and considering various materials, Dr. Campbell opined that he was indeed a sexually dangerous person under the Adam Walsh Act.
On October 11, 2011, Attorney Allen moved for the appointment of a second expert, Dr. Joseph Plaud, and requested an extension of the time for discovery. The magistrate judge denied the motions on November 4, 2011 without prejudice, finding that Blackledge failed to show the need for the appointment of a second expert. The magistrate judge granted a later request to extend discovery until December 22, 2011, and the district court set a bench trial for June 14, 2012. On April 17, 2012, two additional attorneys entered appearances as Attorney Allen's co-counsel, and the court continued the trial until August 2, 2012. On June 14, 2012, Attorney Allen filed a sealed motion renewing Blackledge's request to appoint Dr. Plaud and asking the court to reopen discovery and continue the trial. The magistrate judge denied the motions on July 2, 2012, finding that Blackledge again failed to show good cause for the appointment of a second expert, and that appointment at that stage would disrupt the court's prior scheduling orders.
On July 10, 2012, Attorney Allen filed a motion to withdraw as counsel on the ground that an internal conflict had arisen and she could " no longer continue to ethically represent" Blackledge. J.A. 80. Speaking carefully to avoid violating client confidences or revealing trial strategies, Attorney Allen represented at a hearing on the motion that her internal ethical conflict arose from the fact that Blackledge requested to see certain items that she could not provide him. She added that Blackledge wished to proceed with new counsel and that she had located a panel attorney experienced in § 4248 hearings who could take over the matter immediately. Blackledge also stated at the motions hearing that Attorney Allen had failed to provide him certain documents he requested, and that he felt ignored by her, which made it very difficult for them to communicate.
Blackledge complained in particular about Attorney Allen's failure to obtain a second expert, and Attorney Allen explained that she did not renew the motion earlier because she thought she had more time to do so. While Attorney Allen asserted that Dr. Plaud said only that it was possible that he would find Blackledge not to be a sexually dangerous person, her co-counsel represented that Dr. Plaud had preliminarily indicated that he could testify favorably for Blackledge. Attorney Allen asserted that she had failed at allaying Blackledge's concerns about his defense, and that, as a result of her error, they no
longer had a rapport that allowed him to trust her. When asked if she could represent Blackledge zealously if the motion were denied, Attorney Allen stated that " it would be with great difficulty," though she is a professional and " would certainly do [her] job." J.A. 101. She opined that increasing the frequency of communications would not repair their relationship since she could not change her prior failure to timely renew the motion, which was the content of the discussions.
The magistrate judge denied the motion to withdraw, finding that it was untimely and that there was no breakdown in the attorney-client communications that prevented an adequate defense. On July 23, 2012, Attorney Allen appealed the magistrate judge's ruling to the district court, and on July 30, 2012, she filed a second motion to withdraw. The second motion asserted that Blackledge had filed a state bar grievance against her, causing a conflict of interest where she could not defend against the bar complaint while also representing Blackledge.
The bench trial began on August 2, 2012, and the district court first took up the appeal of the magistrate judge's ruling and the second motion to withdraw. Attorney Allen described her relationship with Blackledge as follows: " our relationship has deteriorated to a point that we cannot discuss his case, strategies of his case. We cannot effectively communicate. That has tied my hands with regard to being able to represent him effectively." J.A. 148-49. She continued: " One of the essential parts of defending someone would be whether they decide to testify or not and how you would go about preparing them for that testimony. That's not even something I can discuss with Mr. Blackledge, so we have not been able to address that appropriately." J.A. 151. Blackledge also explained to the court that he had not " even really had any trial preparation with [Attorney Allen]" and that he had not seen her " for quite sometime [sic]." Id. Attorney Allen added that the bar complaint had pet her " at odds with" Blackledge. J.A. 149.
The district court told Blackledge that he might have to proceed pro se if the motions were granted, and Blackledge stated that he would proceed with Attorney Allen if forced to because he could not defend himself. The court denied the appeal and the second motion, finding that Attorney Allen had not abandoned Blackledge as he claimed and that there was not a breakdown in communications that would prevent an adequate defense. Attorney Allen moved to bifurcate the trial so that the available witnesses could testify, but Blackledge would be allowed to later present an expert opinion from Dr. Plaud. The court denied the motion to bifurcate, and the trial proceeded.
At trial, the Government presented the testimony of two expert witnesses, Dr. Christopher North and Dr. Campbell, and the written report of a third expert witness, Dr. Tonya Cunic. All three experts diagnosed Blackledge with pedophilia -- sexually attracted to boys and girls, non-exclusive type -- among other psychiatric disorders. All three experts concluded that Blackledge met the criteria for a sexually dangerous person under § 4248. Blackledge did not testify or present evidence.
On August 10, 2012, the court found by clear and convincing evidence that Blackledge is a sexually dangerous person under the Adam Walsh Act and ordered his commitment. The court specifically found that Blackledge engaged in child molestation and sexually violent conduct, suffers from pedophilia and antisocial personality disorder, and, as a result, would have serious difficulty refraining from reoffending.
An individual in the custody of the Federal Bureau of Prisons may be civilly committed under § 4248 if the Government proves in a hearing that the person is a sexually dangerous person. 18 U.S.C. § 4248(d). The Government must prove each of the following by clear and convincing evidence: (1) the person " has engaged or attempted to engage in sexually violent conduct or child molestation" (" prior conduct" element); (2) the person " suffers from a serious mental illness, abnormality, or disorder" (" serious mental illness" element); and (3) " as a result of" such condition, the person " would have serious difficulty in refraining from sexually violent conduct or child molestation if released" (" volitional impairment" element). 18 U.S.C. § § 4247(a)(5), (6), 4248. United States v. Hall, 664 F.3d 456, 458 (4th Cir. 2012). Blackledge has stipulated that he engaged in sexually violent conduct or child molestation or attempted to do so, and that he suffers from pedophilia, a serious mental illness, abnormality, or disorder. The trial thus centered on whether he satisfies the volitional impairment element.
Blackledge argues on appeal that the court abused its discretion in denying his motions to extend and reopen discovery, motions to withdraw as counsel, and motions to appoint Dr. Plaud. We hold that the court did abuse its discretion in denying the motions to withdraw and remand for the court to reconsider these motions by engaging in a thorough inquiry as to the extent of Attorney Allen's conflict. We therefore need not address Blackledge's remaining arguments.
We review the denial of a motion to withdraw for abuse of discretion. United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997) (citing United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994)). Blackledge argues that Attorney Allen abandoned his case during the time in which she should have renewed the motion to appoint Dr. Plaud, and thus had a significant conflict presented by her interest in protecting her own professional reputation thereafter. He maintains that because he has a right to counsel under the Adam Walsh Act, this right necessarily includes a due process right to the effective assistance of counsel. Blackledge asserts that the court abused its discretion when it denied the motions because it forced him to proceed with ineffective assistance of counsel.
The Government argues in response that Blackledge was not prejudiced by the denial of the motions because he remained represented by one of Attorney Allen's co-counsel, and because Attorney Allen indicated that she was capable of representing him despite her asserted internal ethical conflict and the bar complaint, albeit with great difficulty. The Government further argues that Attorney Allen ably represented Blackledge, filing motions on his behalf during the time in which he says he was abandoned and cross-examining the relevant witnesses at trial.
In deciding whether a district court has abused its discretion in denying a motion to withdraw or to substitute counsel, we consider three factors: (1) timeliness of the motion; (2) adequacy of the court's inquiry; and (3) " whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense." United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988) (internal citations omitted). If the court abused its discretion, the ruling is subject to harmless error review. See United States v. Horton, 693 F.3d 463, 467 (4th Cir. 2012). We review the court's factual findings for clear error and its legal conclusions de novo. Hall, 664 F.3d at 462. " A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. (internal citations omitted).
Turning to the first factor, it appears that at least the second motion to withdraw was untimely. Attorney Allen filed the first motion on July 10, 2012, slightly more than three weeks before trial. The magistrate judge noted the court's difficulty in scheduling hearings so that all the necessary witnesses could be available, and Blackledge acknowledged that granting the motion would require another continuance so that new counsel could prepare. Consistent with our prior holding that a motion to substitute counsel filed two weeks before the relevant hearing was timely, the initial motion to withdraw in this case was likely timely. See United States v. Jennette, 387 F.Appx. 303, 307 (4th Cir. 2010). However, the second motion was filed on July 30, 2012, only three days before trial. The district court noted that it had a very busy trial calendar for August and September, and that granting the motion at that point would frustrate its scheduling orders. Although the district court was certainly on notice that Attorney Allen wished to withdraw as counsel after the first motion was filed, " [i]n considering timeliness when a defendant requests substitution of counsel, 'the court is entitled to take into account the . . . public interest in proceeding on schedule.'" Mullen, 32 F.3d at 895 (internal citations omitted). As such, this factor weighs somewhat in favor of the court's ruling.
Turning to the second factor, however, the record reveals that the district court failed to engage in an adequate inquiry. " When a defendant raises a seemingly substantial complaint about counsel, the judge 'has an obligation to inquire thoroughly into the factual basis of defendant's dissatisfaction.'" Id. at 896 (internal citations omitted). " An inquiry into the reasons for a defendant's dissatisfaction with his or her lawyer is necessary for the trial court to determine whether good cause for substitution of counsel exists." Id. (internal citations omitted). " The district court is far better situated than we are to observe and inquire into the state of the relationship between a defendant and his appointed counsel, and thus, where the district court has met its 'obligation to inquire thoroughly into the factual basis of defendant's dissatisfaction,' . . . we apply the ordinary standard of review to its factual findings: clear error." United States v. Smith, 640 F.3d 580, 590 (4th Cir. 2011) (citing Mullen, 32 F.3d at 896). While motions to substitute counsel often arise at the defendant's urging, when the attorney also seeks to withdraw, the court must thoroughly inquire into the factual basis of any conflicts asserted by counsel.
In this case, the district court did not meet its obligation to thoroughly inquire into the extent of the communications breakdown or the basis of the asserted
conflict. Despite the representations from Attorney Allen and Blackledge on the morning of trial that they had not done any trial preparation or spoken about whether Blackledge would testify, the court did not ask when they had last seen each other or communicated about the case. Tasked with reviewing the motions de novo, the district court erred in failing to examine how the communications between Blackledge and Attorney Allen had fared since the magistrate judge's inquiry two weeks earlier. The court emphasized Attorney Allen's competence as a lawyer, but an attorney's competence cannot cut short the inquiry because, " [e]ven if a defendant's counsel is competent, a serious breakdown in communication can result in an inadequate defense." United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000). Most significantly, the district court failed entirely to inquire about the internal ethical conflict that Attorney Allen had earlier raised and whether this had been resolved since the first hearing. The court's failure to probe deeply into the basis of Attorney Allen's conflict seriously undermines its decision, and this factor weighs heavily against the court's ruling.
Turning to the third factor, because the district court failed to engage in an adequate inquiry, its factual determination that there was not a total breakdown in communication preventing an adequate defense is not entitled to clear error review. See Smith, 640 F.3d at 590. Even if we were to review this finding for clear error, however, this factor likewise weighs against the district court's ruling.
Firstly, a conflict of interest emerged once Attorney Allen failed to timely renew the motion to appoint Dr. Plaud before the discovery deadline passed. We find useful the Supreme Court's decision in
Maples v. Thomas, in which a post-conviction petitioner's attorneys abandoned their representation of him and missed a critical deadline, thereby causing a procedural default of the petitioner's claims. 132 S.Ct. 912, 916-25, 181 L.Ed.2d 807 (2012). While dicta, the Supreme Court found in Maples that " a significant conflict of interest arose for the firm once the crucial deadline passed" because " the firm's interest in avoiding damage to its own reputation was at odds with [the client's] strongest argument" for excusing the procedural default. Id. at 925 n.8.
In this case, we need not decide whether Attorney Allen actually abandoned Blackledge as in Maples because a conflict arose from the fact that the alleged abandonment was Blackledge's strongest argument for excusing the untimeliness of the renewed motion. Indeed, we recently recognized in the context of federal habeas proceedings that " a clear conflict of interest exists in requiring . . . counsel to identify and investigate potential errors that they themselves may have made . . . ."
Gray v. Pearson, 526 Fed.Appx. 331, 334 (4th Cir. 2013). This conflict exists irrespective of whether the attorney is ultimately found to have erred. See id. at 334-35. Likewise,
a conflict existed here, because, in order to argue that the lateness of the renewed motion should be excused, Attorney Allen would have had to assert her own ineffectiveness. This conflict further undermined Blackledge's trust in Attorney Allen and strained their ability to communicate.
Secondly, in her second motion to withdraw, Attorney Allen explained that Blackledge had recently " indicated that he intends to file a complaint with the North Carolina State Bar against counsel because of her failure to obtain an expert in his case, unless she removes herself from his case." J.A. 120. As in Maples, this threat and the subsequent filing of a bar complaint against Attorney Allen for her conduct thus put her own professional interests directly at odds with those of her client's interests. Certainly, not every bar complaint against an attorney by her client will result in a conflict of interest, and we have previously expressed our unwillingness to " invite [those] anxious to rid themselves of unwanted lawyers to queue up at the doors of bar disciplinary committees on the eve of trial." United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993). However, in this case, Blackledge threatened and ultimately submitted a seemingly non-frivolous grievance against ...