United States District Court, D. Connecticut
ORDER DENYING MOTION TO WITHDRAW AND FOR APPOINTMENT
OF NEW COUNSEL AND MOTION TO SUBSTITUTE COUNSEL [DKTS. 48 AND
49]
HON.
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
Pending
before the Court are Attorney J. Patten Brown III's
motion to withdraw and have new counsel appointed for
Emmanuel Nicolescu, and petitioner Nicolescu's motion to
substitute counsel, and continue his evidentiary hearing.
[Dkts. 48 and 49.] For the reasons given below, the motions
are DENIED.
I.
Background: Procedural History
On May
20, 2015, Emmanuel Nicolescu filed a § 2255 habeas
petition pro se. [Dkt. 1]. Three years later, on June 7,
2018, the Court set an evidentiary hearing [Dkt. 19]. On
August 20, 2018, the Court granted Nicolescu's motion to
appoint counsel. [Dkts. 25, 20]. The Court appointed Steven
Rasile. To give Rasile time to prepare, the Court granted
Nicolescu's motion to continue the hearing to November 1,
2018. [Dkts. 26, 27]. Rasile alerted Nicolescu that Rasile
was co-counsel on a current case with Bruce Koffsky, one of
Nicolescu's trial attorneys. [Dkt. 29 at
¶¶3-14.] At their second meeting, Nicolescu
requested that Rasile withdraw based on the appearance of a
conflict since Rasile was representing Nicolescu on a habeas
corpus petition citing ineffective assistance of counsel of
Rasile's current co-counsel. Id. at
¶¶15-19. On October 15, 2018, the Court granted
Nicolescu's motion for appointment of new counsel and
continued the evidentiary hearing to January 17, 2019. [Dkt.
30.] On November 7, the Court appointed J. Patten Brown III.
[Dkt. 32.] After three continuances requested because of
attorney trial scheduling, claim investigation, and
difficulty in locating trial materials, the evidentiary
hearing is now scheduled for December 6, 2019. [Dkts. 34, 35,
38, 39, 41, 42.]
In
letters dated September 3, 2019, September 9, 2019, and
October 1, 2019, Nicolescu notified the Court of his wish to
change counsel. [Dkts. 45, 46, and 49.] These letters are
best analyzed as motions to substitute counsel. Nicolescu
writes that Brown has been difficult to contact,
uncommunicative, does not have faith in his case, and has not
done work on his case. In earlier letters, Nicolescu writes
that he hopes to keep his December 6, 2019 hearing date, but
he later moves to continue the hearing date if counsel is
substituted. [Dkts. 45, 46, 49.] On September 30, 2019, Brown
moved to withdraw and for appointment of new counsel. [Dkt.
48.] He writes that Nicolescu's “unhappiness [with
him] arose recently, and stems, in [his] opinion from his
expectations and the fact [that] his analysis of the claims
do[es] not comport with mine.” Id. at ¶5.
He writes that it took a long time to obtain Nicolescu's
file from “numerous lawyers around the country, ”
that he has answered Nicolescu's questions and analyzed
his claims, and that he has interviewed prior trial counsel.
Id. at ¶¶3-4. Brown asks that “the
Court take whatever action it deems appropriate.”
Id. at ¶5.
On
Friday, October 4, 2019 at 11:30 a.m., the Court held a
hearing on whether to grant the motion. [Dkts. 47, 50].
II.
Law
A.
Right to Appointment of Counsel
A
habeas petitioner has the right to counsel at an evidentiary
hearing under Rule 8(c) of the Rules governing Section 2255
proceedings:
If an evidentiary hearing is warranted, the judge must
appoint an attorney to represent a moving party who qualifies
to have counsel appointed under 18 U.S.C. § 3006A. The
judge must conduct the hearing as soon as practicable after
giving the attorneys adequate time to investigate and
prepare. These rules do not limit the appointment of counsel
under Sec. 3006A at any stage of the proceeding.
“[A] district court's failure to follow Rule 8(c)
of… the Federal Rules Governing §2255 Cases is
clear error.” Graham v. Portuondo, 506 F.3d
105, 107 (2d Cir. 2007). [1] “All of the circuits to consider
the issue have held that Rule 8(c) mandates the appointment
of counsel at required evidentiary hearings and that the
district court's failure to follow the rule is not
subject to harmless error review and requires vacatur or
reversal.” Id. (citing cases from six other
circuits).
District
courts must appoint counsel to indigent petitioners for
§ 2255 hearings, even if the petitioner did not
specifically request counsel at the hearing. Id. at
108 (vacating district court judgment where petitioner was
unrepresented at hearing, even though petitioner did not
request counsel) (citing United States v. Vasquez, 7
F.3d 81, 85 (5th Cir. 1993)). In Vasquez, cited by
the Portuondo court, the Fifth Circuit explained
that a petitioner's failure to request counsel for a
hearing did not waive his or her right to counsel because
“a waiver of a right to counsel must be knowingly and
intelligently made.” Vasquez, 7 F.3d at 86
(citing a Fifth Circuit case addressing the Sixth Amendment
right to counsel).
B.
Substitution of Appointed Counsel
In the
absence of precedent on substitution of counsel appointed
under Rule 8(c), the Court looks to precedent on substitution
of ...