Chavez v. Johnston

• Court: District Court, D. Kansas
• Decided: September 11, 2023
• Docket: 5:22-cv-03037
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

ANTONIO CHAVEZ,

Petitioner,

v. CASE NO. 22-3037-JWL

MICHAEL JOHNSTON, Commandant, United States Disciplinary Barracks,

Respondent.

MEMORANDUM AND ORDER This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. The parties have agreed to stay this matter pending resolution of the petition for a writ of certiorari before the United States Supreme Court in Larrabee v. Del Toro, Case No. 22-1082. See Doc. 28 (order staying matter pending further order of the Court). This matter is before the Court on Petitioner’s Motion for Leave to Supplement Pleading (Doc. 30). Although Petitioner is represented by counsel, he filed the motion pro se. Petitioner expresses his concern that his appointed counsel, Rich Federico, requested to withdraw from this case. Although Mr. Federico filed a Notice of Withdrawal of Appearance on July 28, 2023, the notice provides that Lydia Krebs Albert, Assistant Federal Public Defendant for the District of Kansas, previously entered her appearance and will remain as counsel for Petitioner. (Doc. 29, at 1.) The Tenth Circuit has recognized that “because there is no constitutional right to ‘a hybrid form of representation,’” . . . “when defendants have the assistance of counsel, courts need not consider any filings made pro se.” United States v. Sandoval-De Loa, 283 F. App’x 621, 625 (10th Cir. 2008) (unpublished) (citing United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995) and United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for [hybrid representation] [is] recognized as being discretionary with the trial court.”); see also United States v. Castellon, 218 F. App’x 775, 780 n.4 (10th Cir. 2007) (unpublished) (“[W]here a defendant is represented by counsel, we do not accept pro se filings or allegations.”)).

This case is currently stayed, and Petitioner is currently represented by counsel. Therefore, the Court denies the motion without prejudice to refiling the supplement if Petitioner proceeds pro se after the stay has been lifted. IT IS THEREFORE ORDERED BY THE COURT that Petitioner’s Motion for Leave to Supplement Pleading (Doc. 30) is denied without prejudice. IT IS SO ORDERED. Dated September 11, 2023, in Kansas City, Kansas.

S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE