Xavier v. Roche et al
ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/12/2013. Within 14 days of date of Order, Gary Raymond Xavier's appointed counsel will file response to plaintiff's 50 assertions, specifically addressing history of communicating with plaintiff over course of litigation. (Marciel, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY RAYMOND XAVIER,
No. 2:09-cv-783 LKK CKD P
M. FRENCH, et al.,
Plaintiff is a state prisoner proceeding in forma pauperis with an action filed pursuant to
42 U.S.C. § 1983. Plaintiff was appointed counsel on February 7, 2011. (ECF No. 21.) Plaintiff
asserts that he has not heard from his appointed counsel since May 24, 2012. He requests that the
court inquire into his counsel’s failure to respond to plaintiff’s legal mail and, if necessary, order
a substitution of counsel. (ECF No. 50.)
The United States Supreme Court held that “an indigent defendant has the same right to
effective representation by an active advocate as a defendant who can afford to retain counsel of
his or her choice.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435 (1988).
The Ninth Circuit held that sufficient counsel under the Sixth Amendment was “competent”
counsel. United States v. Holloway, 259 F.3d 1199, 1201 (9th Cir. 2001). The decision of the
court to allow a motion for substitution or withdrawal of counsel is discretionary. United States
v. Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). However, court discretion must be based on an
inquiry into the request for substitute counsel. United States v. Musa, 220 F.3d 1096, 1102 (9th
Cir. 2000). The Ninth Circuit held that a lack of any inquiry is an abuse of discretion. United
States v. Ibanez-Espinosa, 284 F. App’x 490, 492 (9th Cir. 2008). The court’s own observations,
coupled with defendant’s statements, were adequate to find insufficient grounds for substitute.
With respect to indigent defendants and appointed counsel, the Ninth Circuit held that
“limitations on the range of a defendant’s free choice with regard to appointed or retained counsel
are not constitutionally offensive.” United States v. Robinson, 913 F.2d 712, 716 (9th Cir. 1990)
(holding that defendant’s pro se representation after refusing appointed counsel was not
involuntary and not unconstitutional). In United States v. Garcia, 924 F.2d 925, 926 (9th Cir.
1991), the Ninth Circuit evaluated the district court’s denial of a motion to substitute counsel
based on three factors: “the timeliness of the motion, the adequacy of the lower court’s inquiry
into the defendant’s complaint, and whether the asserted conflict created a total lack of
communication such that the defendant was unable to present an adequate defense.” See also
United States v. Corona-Garcia, 210 F.3d 973, 977 (9th Cir. 2000). The Court has reaffirmed that
only a “total lack of communication” meets the standard to question the competency of counsel.
United States v. Sou, 216 F. App’x 704, 706 (9th Cir. 2007).
Accordingly, IT IS HEREBY ORDERED THAT within fourteen days of the date of this
order, plaintiff’s appointed counsel will file a response to plaintiff’s assertions, specifically
addressing his history of communicating with plaintiff over the course of this litigation.
Dated: August 12, 2013
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
2 / xavi0783.ord
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