United States v. Deandre Miller


PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, PASCO M. BOWMAN and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3624822-2] motion to withdraw as counsel filed by Attorney Mr. David Roy Treimer for Appellant Deandre Terrell Miller. [3679252] [09-3617]

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3617 ___________ United States of America, Appellee, v. Deandre Terrell Miller, Appellant. * * * Appeal from the United States * District Court for the * Southern District of Iowa. * * [UNPUBLISHED] * * ___________ Submitted: June 25, 2010 Filed: June 30, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. After a bench trial, the District Court1 found Deandre Miller guilty of a drug offense and imposed sentence. Miller appealed, and counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In the Anders brief, counsel argues that the District Court erred in denying Miller’s motion to suppress evidence obtained after an alleged body-cavity search that was conducted without a warrant. In a pro se supplemental brief, Miller argues that the District Court erred in failing to 1 The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa. Appellate Case: 09-3617 Page: 1 Date Filed: 06/30/2010 Entry ID: 3679252 conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and in denying his motion to substitute counsel. We reject these arguments. First, at the suppression hearing, the District Court credited the police officers’ testimony that no body-cavity search occurred, see United States v. Wright, 512 F.3d 466, 472 (8th Cir. 2008) (noting that witness credibility is within the province of the trial court), and no warrant was required for the search for contraband conducted incident to Miller's arrest, see United States v. Davis, 457 F.3d 817, 823 (8th Cir. 2006), cert. denied, 549 U.S. 1258 (2007). Thus, the motion to suppress was properly denied. Second, no Franks hearing was required because the search was not executed pursuant to a warrant supported by an allegedly false affidavit. Cf. Franks, 438 U.S. at 171–72. Third, the District Court acted within its discretion in denying Miller’s motion to substitute counsel: the court held a hearing and acknowledged Miller’s complaints but found that counsel had performed adequately, that there was no conflict of interest or breakdown of communication, and that substitution would cause delay. See United States v. Webster, 84 F.3d 1056, 1062 & n.2 (8th Cir. 1996). Finally, after reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and we affirm the District Court. ______________________________ -2- Appellate Case: 09-3617 Page: 2 Date Filed: 06/30/2010 Entry ID: 3679252

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