Nicolescu v. USA
ORDER denying 48 motion to withdraw and for appointment of new counsel and 49 motion to substitute counsel for the reasons set forth in the attached decision. Signed by Judge Vanessa L. Bryant on 10/10/2019. (Dannenmaier, Katherine)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA
NO. 3:15-CV-756 (VLB)
ORDER DENYING MOTION TO WITHDRAW AND FOR APPOINTMENT OF NEW
COUNSEL AND MOTION TO SUBSTITUTE COUNSEL
[DKTS. 48 AND 49]
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.
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 cocounsel 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,
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].
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.
Graham v. Portuondo itself addresses a §2254 case rather than a §2255
proceeding. However, it reasons that “the appointment of counsel requirement of
the Rules Governing §2254 Cases is identical to that of the Rules Governing §
2255 Proceedings,” and therefore explicitly addresses its holding to both § 2254
and § 2255 cases.
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 counsel in the Sixth
Amendment context as a guideline.
A district court’s rulings on motions to substitute counsel and to withdraw
are reviewed for abuse of discretion. United States v. Simeonov, 252 F.3d 238, 241
(2d Cir. 2001) (motion to substitute counsel); Whiting v. Lacara, 187 F.3d 317, 320
(2d Cir. 1999) (motion to withdraw).
Defendants who are “seeking substitution of assigned counsel must…
afford the court with legitimate reasons” for the request. McKee v. Harris, 649
F.2d 927, 932 (2d Cir. 1981). “It is settled that where a defendant voices a
seemingly substantial complaint about counsel, the court should inquire into the
reasons for dissatisfaction.” Id. at 933. When “an accused makes known to the
court in some way that he has a complaint about his counsel, the court must rule
on the matter.” Id. at 934.
A motion for substitution of counsel is reviewed for: (1) the timeliness of
the request; (2) the thoroughness of the lower court’s inquiry into the complaint;
(3) the seriousness of the disagreements between the lawyer and the client; and
(4) the extent to which the defendant’s conduct contributed to a breakdown in
communication. United States v. John Doe No. 1, 272 F.3d 116, 123 (2d Cir. 2001)
(affirming district court’s denial of defendant’s motion to substitute counsel
where breakdown in communication was not total, attorney had filed motions on
behalf of defendant, and breakdown in communication largely due to defendant’s
refusal to cooperate and threats against lawyer); Simeonov, 252 F.3d at 241
(affirming district court’s denial of defendant’s motion to substitute counsel
where counsel met with defendant three times in relevant week and counsel
advocated aggressively for client, even though counsel and defendant disagreed
about strategy and counsel expressed concerns about defendant’s testimony’s
credibility). Once a request for substitute counsel is denied, the court may
apprise the defendant of his or her remaining options: “keeping this lawyer or
proceeding pro se.” United States v. Eltayib, 88 F.3d 157, 168 (2d Cir. 1996).
The district court has “broad discretion” to refuse to permit criminal
defense counsel to withdraw if there is no “substantial reason” to delay the
proceedings while substitute counsel prepares. United States v. Weinberg, 852
F.2d 681, 687 (2d Cir. 1988). On the other hand, in a civil rights civil action, the
Second Circuit held where plaintiff’s’ “desire both to dictate legal strategies to his
counsel and to sue counsel if those strategies are not followed place the lawyer
in [an] impossible  situation,” “he must be permitted to withdraw.” Whiting v.
Lacara, 187 F.3d 317, 322 (2d Cir. 1999)
A. Motion to Withdraw and Substitute Counsel
In an abundance of caution, the Court determined that an evidentiary hearing
on Defendant’s motion was warranted in this case. [Dkt. 19]. Therefore, under
Rule 8(c) and Portuondo, Nicolescu had a right to counsel at the hearing. 506 F.3d
at 107. He has affirmatively exercised the right and has not waived it. [Dkt. 20];
see Vasquez, 7 F.3d at 86 (Fifth Circuit). The Court conducted a hearing at which
it arranged for standby counsel to be available to advise Defendant on the issues
at hand. Both appointed and standby counsel were available and advised
Defendant during a recess of the hearing after the Court administered its
The Court advised Defendant of his Sixth and Fifth Amendment rights: to
counsel; to remain silent and against self-incrimination; to knowingly and
voluntarily waive one’s constitutional rights; and to self-representation. The
Court also advised Defendant of the advantages of being represented by counsel
and the disadvantages of self-representation. Finally the Court advised Defendant
against self-representation. Defendant expressed no dissatisfaction and
acknowledged his understanding of his rights and of the risks of selfrepresentation.
In addition to advising Defendant of the factors the Court would weigh in
deciding whether to persist in his request for withdrawal of his attorney, the
Court advised Defendant of the factors the Court would consider in ruling on his
motion. Finally, the Court informed Defendant that if the Court ruled Attorney
Brown could withdraw, the Court could decline to appoint another attorney to
represent Nicolescu, in which case Nicolescu would have to represent himself,
which the Court advised against.
After its advisement the Court declared a recess for Defendant to speak with
appointed and standby counsel, to consider his options, and to inform the court if
he wanted Attorney Brown to continue representing him or represent himself.
Defendant requested additional time to consider his options, which the Court
Based on the information presented at the hearing and discussed below, the
Court finds that there are no legitimate reasons for Mr. Nicolescu’s lack of
confidence in Attorney Brown. First, the Court finds that there has not been a
total breakdown in communications between Brown and Nicolescu. Brown visited
Nicolescu in August of this year. [Dkt. 45.] Further, Brown has analyzed and given
Nicolescu advice on Nicolescu’s legal claims. [Dkt. 48.] While Nicolescu at some
points has claimed that Brown has failed to give him any advice, e.g. [Dkt. 49],
Nicolescu has also admitted that Brown has given his advice and opinions on
Nicolescu’s legal claims, but that Nicolescu disagrees with Brown’s opinions.
E.g. [Dkts. 45, 46]. Brown is not required to agree with Nicolescu’s assessment of
Nicolescu’s legal claims, and, in fact, may be obligated to disagree. See McKee v.
Harris, 649 F.2d 927, 932 (2d. Cir. 1981) (concluding that counsel's “pessimistic
forecast does not rise to the level of good cause for substitution of counsel”
because “[t]he starting point for good representation is a realistic assessment of
the prospects of success”).
The Court understands that Brown has, in the past, promised to visit
Nicolescu within a given period of time and failed to do so. [Dkt. 49.] Brown has
met with Nicolescu twice, in February and in August. [Dkt. 45, 46]. “Even if
[Nicolescu] would… prefer more in-person meetings with counsel,” there is not
necessarily a total breakdown in communication. United States v. Scott, 637 F.
App'x 10, 15 (2d Cir. 2015) (Summary Opinion). All attorneys are busy – and the
best are frequently the busiest. While Nicolescu is entitled to representation by a
competent attorney, his expectations must be reasonable. See John Doe No. 1,
272 F.3d at 123 (“In evaluating a denial of a motion to substitute counsel, a
defendant's own conduct contributing to the communication breakdown should
be evaluated.”). 2
Second, the Court finds that Brown has diligent represented Nicolescu. Brown
has completed the arduous task of locating and securing Nicolescu’s file after
contacting multiple lawyers. [Dkts. 48, 38, 41.] He ultimately located file material
in the state of Texas. Id. He has reviewed and analyzed Nicolescu’s file and his
claims. [Dkt. 48.] He hired an investigator, in light of Nicolescu’s fact-intensive
claims. [Dkts. 48, 38.] He interviewed Nicolescu’s prior trial counsel. [Dkt. 48.]
Taken together, his actions demonstrate adequately diligent representation.
In addition, Brown has affirmed that his non-appearance was due in part to the
unexpected difficulty of recovering the full file from the numerous lawyers
involved in Nicolescu’s case, [Dkts. 38 and 41], a file Brown needed before he
could analyze Nicolescu’s claims. [Dkt. 41.] Since the file is now complete, the
Court expects that Brown will be able to keep to his promised visitation schedule
Finally, the Court finds that Brown has not failed to consult with Nicolescu on
hearing strategy. Brown must “consult with” and “obtain consent” from
Nicolescu as to “decisions regarding the exercise or waiver of trial rights” such
as whether to “testify in his or her own behalf.” Florida v. Nixon, 543 U.S. 175, 187
(Sixth Amendment context). Moreover, “[a]n attorney undoubtedly has a duty to
consult with the client regarding important decisions, including questions of
overall defense strategy.” Id. However, Brown need not obtain Nicolescu’s
approval of “every tactical decision.” Taylor v. Illinois, 484 U.S. 400, 418 (quoted
in Florida, 543 U.S. at 187) (Sixth Amendment appointment context). A party
appointed counsel “has no automatic right to insist that his lawyer make motions
that he would prefer to be made, … to make supplementary pro se motions when
his attorney declines to make them, … or to insist on new counsel whenever he
and his attorney differ on [motions] strategy[.]” United States v. Rivernider, 828
F.3d 91, 107 (2d Cir. 2016) (citations omitted) (Sixth Amendment appointment
context). Nicolescu has alleged that Brown has not permitted Nicolescu to review
material before filing it with the court. [Dkt. 49]. However, he has not alleged that
Brown has refused to consult with Nicolescu on strategy, or failed to obtain his
consent with regard to decisions implicating Nicolescu’s basic trial rights.
For these reasons, the Court DENIES the motion to withdraw and have new
B. Motion to Continue
In addition, the Court denies Nicolescu’s motion to continue his evidentiary
hearing. [Dkt. 49]. The Court has already granted six continuances of this hearing,
delaying it by more than fourteen months. [Dkts. 21, 27, 30, 35, 39, 42.] At this
point, there must be a “substantial reason for allowing any further delay in the
proceedings.” United States v. Weinberg, 852 F.2d 681, 687 (2d Cir. 1988).
Nicolescu moves for additional time to allow substitute counsel to prepare. [Dkt.
49.] However, given the Court’s denial of Nicolescu’s motion for appointment of
new counsel, there is no need to continue the hearing on those grounds.
Therefore, the Court DENIES Nicolescu’s motion to continue.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: October 10, 2019
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