Goetzendanner v. Saba

Filing 45

Magistrate Judge Timothy S. Hillman: ORDER entered denying 40 Motion to Appoint Counsel ; granting 43 Motion to Withdraw as Attorney. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

______________________________
)
)
DARRIEN GOETZENDANNER, )
Petitioner,
)
)
vs.
)
)
JAMES SABA, Superintendent,
)
Respondent
)
)
______________________________)

CIVIL ACTION
NO. 09-40037-FDS

ORDER
May 17, 2011

HILLMAN, M.J.

Nature of the Proceeding
This matter was referred to me by Orders of Reference dated April 5, 2011 and April 27,
2011, for a decision pursuant to 28 U.S.C. § 636(b)(1)(A) on Petitioner’s motion seeking
appointment of substitute counsel (Docket No. 40)1 and the Motion to Withdraw (Docket No. 43)
filed by Petitioner’s attorney.
Nature of the Case
The Petitioner, Darrien Goetzendanner (“Goetzendanner” or “Petitioner”), is a state
inmate incarcerated at the North Central Correctional Institute in Gardner, Massachusetts.

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Goetzendanner wrote a letter to the court expressing his dissatisfaction with his current appointed counsel,
Leslie W. O’Brien, Esq., which the court has treated as a motion to appoint substitute counsel.

Goetzendanner has filed a Petition Under 28 U.S.C. §2254 For Writ Of Habeas Corpus By A
Person In State Custody (Docket No. 1)(“Petition”)
Current Posture of the Case
On February 12, 2009, Petitioner, proceeding pro se, filed his Petition. Thereafter, both
parties filed various ministerial and procedural motions which have been ruled on by the court.
On April 23, 2009, Petitioner filed a Motion for Appointment of Counsel (Docket No. 8), which
was allowed by the court on September 4, 2009. See Order and Report and Recommendation,
dated September 4, 2009 (Docket No. 21)(“Prior Order”). On December 23, 2009, Alan J.
Black, Esq. (“Attorney Black”), was appointed to represent Petitioner. On July 16, 2010,
Petitioner filed a motion for appointment of new counsel (Docket No. 29); on July 22, 2010,
Petitioner withdrew the motion (Docket No. 30). On August 18, 2010, Petitioner filed a renewed
motion for appointment of counsel (Docket No. 31); on August 23, 1010, Attorney Black file a
Motion To Withdraw As Counsel (Docket No. 32).2 On September 23, 2010, this court, by
electronic endorsement, allowed both the motion to appoint new counsel and the motion to
withdraw. On that same date, Leslie W. O’Brien, Esq. (“Attorney O’Brien”), was appointed to
represent Petitioner. On January 28, 2011, Petitioner filed a letter with the court which has been
treated as a motion to appoint counsel. On April 26, 2011, Attorney O’Brien filed a motion to
withdraw.
Discussion
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Petitioner filed his initial motion on the grounds that Attorney Black had failed to contact him. The day
after the motion was filed, Attorney Black did contact him and the two seemingly resolved any issues concerning
Attorney Black’s continuing representation and, as noted, Petitioner withdrew the motion. Approximately, a month
later, Petitioner filed his renewed motion for new counsel on the grounds that Attorney Black had failed to further
contact him or to prosecute his case. Attorney Black then filed his motion to withdraw in which he noted that he had
explained to Petitioner that he would be away for most of that period and would not be able to take any action with
respect to his case until he returned.

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The decision as to whether to appoint substitute counsel is within my discretion. In
making that determination, the court will look at the same factors which led to the appointment
of counsel in the first instance, As stated in my Prior Order allowing Petitioner’s motion to
appoint counsel, a petitioner who is seeking relief under 28 U.S.C. §2254 is not entitled to a free
lawyer as of right, but a lawyer may be appointed where the petitioner is indigent and
“exceptional circumstances” exist that produce a fundamental unfairness if the petitioner is
denied counsel.
In my Prior Order, I found that Petitioner was indigent and that he had established
exceptional circumstances to warrant appointment of counsel. Specifically, I found that his
claims are novel and complex, require investigation beyond the resources available to him and
that he failed to comprehensibly articulate the nature of his claims. However, since my Prior
Order, I find that it is necessary to revisit the issue of whether Petitioner has established that
extraordinary circumstances exist warranting the appointment of counsel.
First, Petitioner has had the benefit of two experienced lawyers from this court’s CJA list.
While there was an unexplained lengthy delay before Attorney Black first contacted Petitioner,
by all accounts once they met, Petitioner was satisfied with his representation. Attorney Black
informed Petitioner at their first meeting in July 2010 that he was scheduled to be out of the
Commonwealth until August 12, 2010. On August 18, 2010, less than a week after Attorney
Black was back in his office, Petitioner inexplicably filed a motion for substitute counsel as the
result of Attorney Black’s failure to prosecute his case. Attorney Black then filed a motion to
withdraw citing a breakdown in attorney/client communications. That motion was allowed and
Attorney O’Brien was appointed in his stead. As to Attorney O’Brien, it is clear from the record

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that she has contacted Petitioner and/or corresponded with him on numerous occasions and
prepared filings for his review. While awaiting his feedback, she has filed motions for
extensions of time with the court. However, because Petitioner is not satisfied with her advice
concerning how to best prosecute his Petition, the attorney/client relationship has irretrievably
broken down. Under these circumstances I find it necessary to remind Petitioner that he was
informed in my Prior Order that, while I found that circumstances warranted appointment of
counsel, he was not entitled to appointment of counsel of his choice. Where Petitioner has been
appointed able counsel, he is not entitled to continually seek substitution of such counsel and/or
to sabotage the attorney/client relationship simply because he would prefer someone else.
Second, Petitioner has submitted to the court copies of correspondence between he and
Attorney O’Brien. From a review of the record, I find that Attorney O’Brien has been working
diligently on Petitioner’s behalf, but that a conflict has arisen because Petitioner disagrees with
Attorney O’Brien about whether all of the claims he has asserted in his Petition are cognizable
and/or should be pursued on federal habeas review. At the same time, it is evident from the
correspondence between Petitioner and his lawyer and from additional submissions which
Petitioner has made to the court, that at this stage of the proceedings, he (1) comprehends the
nature of his claims, (2) has made it clear that he wants his claims articulated to the court in
accordance with his understanding of factual and legal underpinnings thereof, and (3) has a far
greater appreciation of the substantive and procedural aspects of the law than he indicated when
he first filed a motion seeking appointment of counsel.
Accordingly, I find that exceptional circumstances do not exist sufficient to warrant
appointment of substitute counsel. Therefore, Petitioner’s motion to appoint counsel is denied

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and Attorney Brien’s motion to withdraw is allowed. Going forward, Petitioner shall proceed
pro se.
Conclusion
It is Ordered that:
1.

The Petitioner’s motion seeking appointment of substitute counsel (Docket No.

40) is denied; and
2.

The Motion to Withdraw (Docket No. 43) filed by Petitioner’s attorney is

allowed.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
UNITED STATES MAGISTRATE JUDGE

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