United States v. David Calhoun

• Court: Court of Appeals for the Third Circuit
• Decided: December 14, 2022
• Docket: 19-3310
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-3310

UNITED STATES OF AMERICA

v.

DAVID CALHOUN, Appellant

Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-05-cr-00363-006) District Judge: Honorable Cynthia M. Rufe

Submitted Under Third Circuit L.A.R. 34.1(a) on November 14, 2022

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

(Filed: November 30, 2022)

OPINION*

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. AMBRO, Circuit Judge

David Calhoun appeals the District Court’s denial of his habeas petition, in which

he alleged a Sixth Amendment choice-of-counsel violation that he never raised at trial or

on direct review. Because we agree with the District Court that Calhoun procedurally

defaulted his claim, we affirm.

I.

In June 2005, Calhoun and seven other co-defendants were indicted for their

participation in a narcotics conspiracy. Calhoun retained attorney Nino Tinari, who

entered his appearance before the District Court on July 28, 2005.

In January 2006, after two failed plea deals, Tinari mailed a letter to Calhoun

asking if he could pay his legal fees for the upcoming trial. In the letter, Tinari asked

that, if Calhoun could not pay, he allow Tinari to withdraw so the Court could appoint

new counsel. But Calhoun never received this letter because Tinari mistakenly sent it to

a state correctional institution even though Calhoun had been transferred to the Federal

Detention Center in Philadelphia for his change-of-plea hearing. When Tinari did not

hear back, he faxed a motion to withdraw as counsel to the District Court’s chambers.

The same day, without holding a hearing or permitting Calhoun to object, the Court

granted the motion to withdraw and gave Calhoun thirty days to find a new attorney. But

only two days later, without waiting for Calhoun to find new counsel, it ruled that

Calhoun was indigent and appointed William Cannon to represent him. There is no

evidence in the record that Calhoun objected to Tinari’s dismissal or Cannon’s

appointment at that time.

2 Two weeks before trial, Calhoun submitted a hand-written pro se motion for a

continuance claiming he did not have enough time to prepare for trial with his new

counsel, Cannon. In this motion, Calhoun confirmed he was “indigent with absolutely no

funds available in his inmate account” and needed both appointed counsel and more time

to prepare. App. 373. The District Court denied the motion for a continuance, and

Calhoun’s trial began four days later. Before, during, and after trial, Calhoun filed

multiple motions, both pro se and through appointed counsel, but he never made a Sixth

Amendment choice-of-counsel objection. He was convicted on all counts, and the Court

sentenced him to twenty years in prison and ten years supervised release.

Calhoun appealed, and the Third Circuit appointed Cannon to represent him again,

this time on direct appeal. A few months later, Calhoun filed a motion for appointment

of new counsel for his direct appeal claiming Cannon “was ineffective at trial” and had

“avoided contact with appellant since sentencing.” Id. at 343. Calhoun’s motion did not

include a choice-of-counsel objection. We rejected the motion because it is typical

within our Circuit that criminal trial counsel remain on appeal. 3d. Cir. L.A.R. 109.1.

Calhoun raised many constitutional claims in his appeal, but choice of counsel was not

one of them. See United States v. Calhoun, 276 F. App’x 114 (3d Cir. 2008), cert.

denied, 556 U.S. 1113 (2009).

Calhoun first raised the choice-of-counsel violation in his habeas petition that he

filed in March 2010. In this petition, Calhoun raised nineteen total constitutional

violations. Over the next ten years, the habeas proceedings resolved eighteen of the

claims, leaving only the claim for choice of counsel. The District Court had “grave

3 concerns regarding the process by which Tinari was permitted to withdraw,” but it

concluded that “this claim is procedurally defaulted . . . [and Calhoun] has failed to

establish cause to excuse the default.” App. 8. The Court nonetheless issued a certificate

of appealability on the claim.

The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction

under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. Our review of the habeas petition is

plenary. United States v. Arrington, 13 F.4th 331, 334 (3d Cir. 2021).

II.

The Sixth Amendment’s right to counsel encompasses “the right of a defendant

who does not require appointed counsel to choose who will represent him.” United

States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). But because Calhoun did not raise

his choice-of-counsel claim at trial or on direct appeal, his habeas claim is procedurally

defaulted unless he can show (i) cause for his failure to raise the issue before collateral

review, and (ii) actual prejudice. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); United

States v. Frady, 456 U.S. 152, 167 (1982); Weaver v. Massachusetts, 137 S. Ct. 1899,

1912 (2017).

Assuming the Sixth Amendment claim has merit, we presume prejudice because

Calhoun was “erroneous[ly] depriv[ed] of the right to counsel of choice.” Gonzalez-

Lopez, 548 U.S. at 150. Such a deprivation is a “structural defect” that defies harmless

error review because it “would be a speculative inquiry into what might have occurred in

an alternate universe.” Id. Instead, we presume prejudice when a choice-of-counsel

violation occurs.

4 Calhoun still must show cause for his failure to raise the issue before collateral

review. See Weaver, 137 S. Ct. at 1910 (explaining that the “term ‘structural error’ . . .

means only that the government is not entitled to deprive the defendant of a new trial by

showing that the error was ‘harmless beyond a reasonable doubt.’”). To do so, he must

show “some external impediment preventing counsel from constructing or raising the

claim,” such as where the legal or factual basis for the claim was “not reasonably

available to counsel” or where interference by officials made compliance

“impracticable.” Murray v. Carrier, 477 U.S. 478, 488, 492 (1986).

Calhoun argues that the trial court record was incomplete and too limited for him

to raise his claim. For example, the docket did not include Tinari’s request for

withdrawal because he faxed the request to, rather than filing it with, the Court. Though

Calhoun had no notice of the motion to withdraw before the Court decided it, he

eventually became aware when new counsel started representing him. At that time or

even later on direct review, Calhoun could have questioned why Tinari was no longer

representing him and asked the Court to reconsider its order. But he did not. He filed

multiple motions and a direct appeal raising myriad other complaints without raising his

Sixth Amendment objection. Instead, Calhoun confirmed to the Court that he needed

appointed counsel because he was “indigent with absolutely no funds available in his

inmate account.” App. 373.

The District Court correctly held that Calhoun “knew of the basis for this claim” at

least by the time of direct appeal, so his “lack of establishing cause for his procedural

default forecloses a grant of relief.” Id. at 13.

5 * * *

We thus affirm the judgment of the District Court.