O'Keefe v. Gillespie et al

Filing 32

ORDER Denying without prejudice 31 Ex Parte Motion withdrawal of appointed counsel. Signed by Judge James C. Mahan on 12/30/2013. (Copies have been distributed pursuant to the NEF; CC: Petitioner at HDSP and COA - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,
Petitioner,

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2:11-cv-02109-JCM-VCF

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vs.

ORDER

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SHERIFF DOUG GILLESPIE, et al.,
Respondents.

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This habeas matter comes before the court on a motion (#31) for withdrawal of
appointed counsel filed in proper person by the petitioner.

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The court dismissed the action without prejudice because petitioner’s pro se double-

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jeopardy challenge to his state court retrial had not been exhausted in the state courts. This

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matter currently is on appeal. Pursuant to a directive from the court of appeals, this court

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appointed the federal public defender to represent petitioner on, inter alia, the current appeal.

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Petitioner now seeks an order vacating the appointment so that he can proceed pro

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se, asserting an alleged sixth amendment right to self-representation. He is not satisfied with

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the representation provided by the federal public defender.1

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At the very outset, counsel was appointed pursuant to a directive of the court of

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appeals, which currently has jurisdiction over the case on the still-pending appeal. Petitioner

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must pursue his request in that court rather than this court.

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The online docket record for the court of appeals reflects that petitioner also filed a motion to dismiss
appointed counsel on November 15, 2013, in that court, which currently is pending.

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The court additionally notes that petitioner has no sixth amendment right to self-

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representation in collateral review proceedings. Cf. Martinez v. Court of Appeal of California,

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528 U.S. 152 (2000)(a criminal defendant has no right of self-representation on direct appeal).

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Moreover, even in an original criminal proceeding, a defendant does not have a constitutional

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right to counsel who agrees with the defendant on every aspect of case handling, who follows

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his every directive, and who has provided representation that the defendant subjectively

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regards to be satisfactory. See, e.g., Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Petitioner’s

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dissatisfaction with counsel, in and of itself, therefore does not mandate that an appointment

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be withdrawn. On the pending appeal, the court of appeals – not petitioner – determines

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whether petitioner will be represented by appointed counsel and if and when the

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representation ends.

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IT THEREFORE IS ORDERED that petitioner’s proper person motion (#31) for

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withdrawal of appointed counsel is DENIED without prejudice, in deference to the authority

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of the court of appeals over the matter.

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The clerk of court shall SEND a notice of electronic filing of this order to the court of

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appeals in connection with No. 12-15271 in that court and shall prominently reflect said

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transmittal in the docket entry for this order.

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The clerk further shall reflect petitioner’s current institutional address and back number

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(#90244) from #31 under his name on the left side of the docket sheet only, shall SEND a

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hard copy of this order to petitioner in proper person at that address, and shall reflect said

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hard copy mail transmittal to petitioner in proper person at that address in the docket entry

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for this order.

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DATED: December 30, 2013.

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_________________________________
JAMES C. MAHAN
United States District Judge

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