Bolin v. McDaniel et al

Filing 181

ORDER DENYING Petitioner's 179 pro se motion to dismiss counsel. Counsel shall resume accepting petitioner's phone calls when possible. Signed by Judge Miranda M. Du on 06/10/2013. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8

GREGORY D. BOLIN,

Case No. 3:07-cv-00481-MMD-VPC
Petitioner,

9

ORDER

v.
10
RENEE BAKER, et al.,
11
Respondents.
12
13

On May 2, 2013, petitioner Gregory Bolin filed, pro se, a motion asking for the

14

dismissal of his current counsel, David Neidert and Mike Charlton.

(Dkt. no. 179.)

15

Neidert and Charlton were appointed to represent Bolin when Bolin’s previous counsel,

16

Saor Stetler, was discharged based on a finding that a total breakdown in

17

communication had occurred between counsel and client. (Dkt. nos. 115, 117, 125.)

18

Stetler had replaced Bolin’s previous counsel, the Federal Public Defender’s office,

19

which was also discharged pursuant to a motion brought by Bolin. (Dkt. no. 34.)

20

The statutory provision governing the appointment of counsel in capital cases

21

provides that appointed counsel may be “replaced . . . upon motion of the defendant.”

22

18 U.S.C. § 3599(e). The Supreme Court held, in Martel v. Clair, 132 S.Ct. 1276

23

(2012), that federal courts must use an “interests of justice” standard to decide such

24

motions. 132 S.Ct. at 1284.

25

In determining whether to substitute counsel, a court must inquire into the nature

26

of the defendant's complaint and consider primarily (1) the timeliness of the motion and

27

the degree of resulting inconvenience and delay, and (2) the extent of the conflict

28

between the accused and counsel and whether a total breakdown in communication

1

has occurred such that the defendant is unable to present an adequate defense. See

2

United States v. Gonzalez, 113 F.3d 1026, 1028 (9th Cir. 1997); United States v. Schaff,

3

948 F.2d 501, 503 (9th Cir. 1991).

4

appeals will consider: “the timeliness of the motion; the adequacy of the district court's

5

inquiry into the defendant's complaint; and the asserted cause for that complaint,

6

including the extent of the conflict or breakdown in communication between lawyer and

7

client (and the client's own responsibility, if any, for that conflict).” Martel, 132 S.Ct. at

8

1287.

9
10
11
12

In reviewing substitution motions, the court of

Bolin’s reasons for wanting to discharge counsel are outlined in his motion. They
can be summarized as follows:
(1) Charlton refuses to locate and interview a “potentially important
witness,” who may have information about the victim’s “activities leading
up to her murder,” and refuses to review “a piece of evidence” admitted at
Bolin’s trial;

13
14

(2) Charlton refuses to locate and interview an expert who testified
for the State at trial;

15

(3) Charlton fails to comprehend Claim Nine of the fourth amended
petition alleging error based on the admission of faulty DNA evidence;

16
17

(4) Charlton has advised Bolin that he will make arguments that
contradict allegations contained in the fourth amended petition; and
(5) Neidert has not worked on, or been adequately involved in, his

18
case.
19
20

(Dkt. no. 179.)

21

On June 3, 2013, the Court held an ex parte hearing. (Dkt. no. 180.) At that

22

hearing, Bolin and both counsel were each given an opportunity to address the

23

allegations contained in Bolin’s motion. Observing the confidentiality of the proceeding,

24

the Court shall not recount or discuss here what was said at the hearing.

25

say that the Court is satisfied that co-counsel Charlton has a firm grasp of the issues

26

related to Claim Nine of the amended petition (dkt. no. 138). Moreover, to the extent

27

Charlton has not complied with Bolin’s wishes with regard to handling Bolin’s case,

28

counsel was able articulate legitimate reasons for his actions or omissions. A
2

Suffice it to

1

disagreement over strategy is insufficient, without more, to establish a conflict that

2

would prevent adequate representation.

3

1017, 1034 (9th Cir. 2010) (concluding that defendant's dissatisfaction with defense

4

strategy did not require change of counsel). Finally, the Court finds no validity to Bolin’s

5

claim that co-counsel Neidert has not devoted a sufficient amount of time or effort to

6

Bolin’s case.

United States v. Reyes-Bosque, 596 F.3d

7

Based on the foregoing and the Court’s review of the relevant record, there is

8

currently not a conflict or breakdown in communication that is of sufficient magnitude to

9

warrant the discharge of counsel in this case. Having heard from Bolin and counsel, the

10

Court finds that the conflict involved disagreements over strategies. And, given the

11

advanced stage of the proceedings herein, installing new counsel is more likely to

12

cause unnecessary delay. Accordingly, the interests of justice do not mandate the

13

replacement of appointed counsel. See Martel, 132 S.Ct. at 1287. Thus, the Court

14

shall deny Bolin's motion.

15

Briefly, on the matter of counsel’s communication with their client, the Court finds

16

that counsel understand their obligations to their client pursuant to Rule 1.4 of the

17

Nevada Rules of Professional Conduct.

18

barriers presented by written communications, counsel are ordered to maintain verbal

19

communications and to accept, when possible, phone calls initiated by Bolin for the

20

purpose of discussing his case.

21
22
23
24
25

In light of Bolin's representation as to the

IT IS THEREFORE ORDERED that petitioner’s pro se motion to dismiss counsel
(dkt. no. 179) is DENIED in all respects.
IT IS FURTHER ORDERED that counsel shall resume accepting petitioner’s
phone calls when possible.
DATED THIS 10th day of June 2013.

26
27
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

28
3