United States v. Shaw

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 30, 2009
• Docket: 08-6751
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6751

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CLARKE COLEMAN SHAW,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:07-hc-02214-BR)

Submitted: December 15, 2008 Decided: January 30, 2009

Before NIEMEYER, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Craven, III, Durham, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Michael Lockridge, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

On November 30, 2007, the Government moved to certify

Clarke Coleman Shaw as a sexually dangerous person under 18

U.S.C. § 4248(a) (2006). In response to this petition, as well

as seventeen other similar petitions, the district court noted

that it had found 18 U.S.C. § 4248 unconstitutional, see United

States v. Comstock, 507 F. Supp. 2d 522, 559 (E.D.N.C. 2007).

Comstock, and consequently the issue of the constitutionality of

§ 4248, was on appeal in this court. See United States v.

Comstock, 551 F.3d 274 (4th Cir. 2009) (district court affirmed

January 8, 2009). Accordingly, by order entered January 10,

2008, the district court appointed the Federal Public Defender

to represent Shaw and the other Respondents and held in abeyance

any further action in the proceedings pending decision in

Comstock. Shaw’s counsel moved to withdraw from representation,

citing “a deterioration of the attorney-client relationship.”

On the basis that Shaw’s case had been stayed pending the

outcome in Comstock, the district court denied the motion

without prejudice. Shaw now appeals the order denying counsel’s

motion to withdraw from representation.

As a threshold matter, we note that we enjoy

jurisdiction over this interlocutory appeal under the collateral

order doctrine which “is limited to trial court orders affecting

2 rights that will be irretrievably lost in the absence of an

immediate appeal.” Richardson-Merrell, Inc. v. Koller, 472 U.S.

424, 430-31 (1985). See Whiting v. Lacara, 187 F.3d 317, 320

(2d Cir. 1999) (holding denial of counsel’s motion to withdraw

as counsel appealable under the collateral order doctrine).

With respect to the merits, whether a motion for

substitution of counsel should be granted is within a trial

court’s discretion. United States v. Corporan-Cuevas, 35 F.3d

953, 956 (4th Cir. 1994). An indigent defendant has no right to

a particular attorney and can demand new counsel only for good

cause. See United States v. Gallop, 838 F.2d 105, 108 (4th Cir.

1988). Further, a defendant does not have an absolute right to

substitution of counsel. United States v. Mullen, 32 F.3d 891,

895 (4th Cir. 1994). In evaluating whether the trial court

abused its discretion in denying a motion to withdraw, this

court must consider: (1) the timeliness of the motion; (2) the

adequacy of the court’s inquiry; and (3) whether the

attorney/client conflict was so great that it resulted in total

lack of communication, preventing an adequate defense. * United

* This court applies the same test whether reviewing counsel’s motion to withdraw or a party’s motion for substitution of counsel. See United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997).

3 States v. Reevey, 364 F.3d 151, 156-57 (4th Cir. 2004). These

factors are weighed against the district court’s “interest in

the orderly administration of justice.” Id. at 157.

Based on the sole reason given to the district court,

a deterioration of the attorney-client relationship, we find no

abuse of discretion in the district court’s order denying

counsel’s motion to withdraw. The case had been stayed pending

decision in Comstock and therefore the court reasonably

determined that withdrawal was unnecessary at that juncture. To

the extent appellate counsel argues that Shaw’s case is

“compelling” and different than the other fifty-six defendants

awaiting decision in Comstock, this argument was not presented

to the district court and Shaw has therefore waived review in

this court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(noting generally federal appellate court does not address

issues not raised below); Muth v. United States, 1 F.3d 246,

250 (4th Cir. 1993) (explaining issues not raised in district

court will not be considered on appeal unless the refusal to

consider newly-raised issue would result in miscarriage of

justice).

Accordingly, we affirm the district court’s order. We

dispense with oral argument because the facts and legal

4 contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED