Nicolescu v. United States

          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 ...