United States District Court, E.D. North Carolina, Southern Division
W. EARL BRITT, Senior District Judge.
This matter is before the court for initial review of a 28 U.S.C. § 2255 motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings. Under this Rule, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion...." R. Gov. § 2255 Pro. 4(b).
In May 2011, petitioner was charged by way of indictment with one count of bank robbery in violation of 18 U.S.C. § 2113(a) and one count of bank robbery and aiding and abetting the same in violation of 18 U.S.C. §§ 2 and 2113(a). After petitioner underwent a psychiatric evaluation and after multiple continuances necessitated by three changes in defense counsel, petitioner ultimately proceeded to trial, representing himself, in September 2012. In January 2013, the court sentenced petitioner to a total term of 300 months imprisonment. Petitioner appealed. By mandate issued 27 February 2014, the Fourth Circuit Court of Appeals affirmed this court's judgment. (DE ## 263, 268.) Petitioner then filed a petition for a writ of certiorari, which the Court denied 19 May 2014. Beckton v. United States, No. 13-9757 (U.S.). On 7 April 2015, petitioner timely filed the instant § 2255 motion. (DE # 308.)
In his § 2255 motion, petitioner asserts five claims. The court addresses each claim in turn.
First, petitioner argues that his right to effective assistance of counsel was violated when the court forced him to choose between proceeding with conflicted counsel and appearing pro se. (Mot., DE # 308-1, at 4-5.) He contends that substitute counsel should have been appointed. (See id.)
"The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing... interest in proceeding on schedule." United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988) (citation omitted). "In cases where a district court has denied a request by a defendant to replace one court-appointed lawyer with another court-appointed lawyer, th[e appellate court] considers three factors to determine whether the initial appointment ceased to constitute Sixth Amendment assistance of counsel: (1) the timeliness of the motion; (2) the adequacy of the court's subsequent 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. Horton, 693 F.3d 463, 466-67 (4th Cir. 2012) (internal quotation marks and citation omitted). "[O]nce the trial court has appropriately determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continuing representation by his existing counsel and appearing pro se. " Gallop, 838 F.2d at 109 (citations omitted).
On 4 September 2012, during his arraignment hearing, petitioner claimed a conflict of interest existed between him and Thomas Manning, Esq., (DE # 253, at 4-5), who was the third attorney appointed to represent petitioner at trial. Petitioner wanted Manning to withdraw and another attorney appointed to represent him. (See id. at 9, 14, 15.) Upon inquiry from the court, petitioner identified several perceived issues with Manning's representation: the court "selected" Manning to represent petitioner, (id. at 7); Manning is friends with the husband of one of the prosecutors, (id. at 7-8); in one of their meetings, Manning revealed to petitioner confidential information about another client's case, (id. at 8-9); and, petitioner had filed a civil lawsuit against Manning, (id. at 4, 13).
In response, the court explained to petitioner its involvement in the appointment of Manning as counsel. The court noted that given petitioner's inability to get along with first court appointed counsel and his making inappropriate remarks to second appointed counsel (a female), the court suggested that the Federal Public Defender see if Manning could represent petitioner. (Id. at 10.) Next, the court inquired of Manning about his friendship with the prosecutor's husband (who is also an attorney). (Id. at 11.) The court asked Manning, "Do you see any reason that the fact that he's married to the [prosecutor], would in any way compromise your ability to represent your client?" (Id. at 12.) Manning responded, "Not at all[.]" (Id.) When asked about the lawsuit petitioner had supposedly filed against him, Manning stated, "I haven't received any such lawsuit and no, I don't think it's a conflict." (Id. at 14.) Finally, the court asked Manning, "Do you feel like you can give him the representation that you did any other client that you had in this courtroom?" (Id.) Manning answered, "If he'll permit me, yes." (Id.)
When petitioner stated that he did not want Manning to represent him, the court informed petitioner that another lawyer would not be appointed and explained to petitioner that he had the option of representing himself. (Id. at 14-15.) The court further explained the standards to which petitioner would be held if he chose to represent himself and that representing himself was not in his best interest. (Id. at 16-17.) Despite this information, petitioner insisted on representing himself. (See 9/4/12 Tr., DE # 252, at 2-7.)
Considering the circumstances, the court did not abuse its discretion in refusing to appoint another attorney to represent petitioner. First, petitioner's request for new counsel was untimely. At the time of the request, Manning had represented petitioner approximately six months. Also, jury selection was scheduled to begin that same afternoon. Except for the filing of the civil lawsuit, petitioner did not suggest that he had recently become aware of the issues with regard to Manning's representation.
Second, the court thoroughly explored the extent of what petitioner perceived as conflicts with Manning's representation. The court had sufficient information to conclude that a conflict of interest warranting appointment of new counsel did not exist. As such, the court rightly gave petitioner the option of proceeding with Manning or representing himself, with Manning as standby counsel. There being no error on the part of the court, this first claim is meritless.
Next, petitioner claims that by denying his request for a continuance of trial in order to prepare, the court denied him the right to "effectively" represent himself "in a meaningful sense." (Mot., DE # 308-1, at 18.) Petitioner contends that once the court permitted him to proceed pro se, the court afforded him only a day in court to prepare for trial. (Id.) According to petitioner, by not allowing him additional time to prepare for trial, the court violated his right of self-representation and prejudiced his right to present evidence on his own behalf. (Id. at 21.)
Whether to grant a continuance of trial rests within the discretion of the court. United States v. Williams, 445 F.3d 724, 738-39 (4th Cir. 2006). A defendant's rights are violated only if the court unreasonably and arbitrarily "insist[s] upon expeditiousness in the face of a justifiable request for delay." Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal quotation marks and citation omitted).
Here, as discussed previously, on the day of arraignment, 4 September 2012, the court permitted petitioner to proceed pro se, with Manning as standby counsel. Petitioner expressed the need for his case file. (9/4/12 Tr., DE # 253, at 18.) Even though Manning indicated that he provided petitioner with all discovery and documents filed by the government, the court directed Manning to make another copy of the materials and provide them to petitioner. (Id. at 19-20, 24.) Manning brought those materials to court to provide to petitioner on the afternoon of 4 September 2012. (9/4/12 Tr., DE # 252, at 7, 102.) On that same day, petitioner also requested that the trial be continued to allow him additional time to prepare for trial. (9/4/12 Tr., DE # 253, at 22-23.) The court denied the request, noting that Manning would provide petitioner with a copy of his case file and that petitioner would have the file in plenty of time before the trial began. (Id. at 23-24.)
The only other proceeding which occurred that same day, i.e., 4 September 2012, was jury selection; opening statements and the presentation of evidence did not begin until nearly a week later, on 10 September 2012. Therefore, contrary to petitioner's contention, he had more than a day to prepare. It was not unreasonable for the court to deny petitioner's belated request to continue the trial. Therefore, the court concludes that this habeas corpus claim is meritless.
Petitioner's third claim concerns his being in full restraints throughout the trial. He asserts that the physical restrictions placed on him deprived him of the right to effectively represent himself and prejudiced his right to a presumption of innocence. (Mot., DE # 308-1, at 23, 28.)
As the Fourth Circuit has recognized:
Basic to American jurisprudence is the principle that an accused, despite his previous record or the nature of the pending charges, is presumed innocent until his guilt is established beyond a reasonable doubt by competent evidence. It follows that he is also entitled to the indicia of innocence. In the presence of the jury, he is ordinarily entitled to be relieved of handcuffs, or other unusual restraints, so as not to mark him as an obviously bad man or to suggest that the fact of his guilt is a foregone conclusion.
However, the right to the indicia of innocence is a relative one. The judge presiding at the trial, the jurors, courtroom personnel and spectators are entitled to security in the performance of their functions or in observing the trial. The members of the public out of the courtroom are entitled to security in the pursuit of their daily activities. The public also has an interest in the expeditious trial of persons accused of crime, and an interest in preventing the guilty from being at large and committing other offenses. Thus, in appropriate circumstances, the ...