Mirkovic v. United States of America
Filing
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OPINION AND ORDER: Mirkovic's motion to substitute counsel is DENIED AS MOOT in Case No. 15-cv-692, because no counsel has been appointed for him. Mirkovic's motion to substitute counsel is GRANTED IN PART in Case No. 12-cr-691, insofar as to Ms. Kellman's representation is withdrawn and the Court will not consider her May 2, 2016 submission on Mirkovic's behalf. Mirkovic's motion to substitute counsel is DENIED IN PART in Case No. 12-cr-691, insofar as the Court decline s to appoint new counsel to represent him on his motion to compel the Government to file a motion for sentence reduction under Federal Rule of Criminal Procedure 35. Mirkovic's motion for a 90-day extension for new counsel to become familiar wit h his case is DENIED AS MOOT, however, the Court AMENDS its briefing schedule dated March 15, 2016. Mirkovic shall file his reply to the Government's response no later than June 27, 2016. Ordered by Visiting Judge VJ-John F. Keenan on 5/11/2016. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------UNITED STATES OF AMERICA,
-againstDEJVID MIRKOVIC,
Defendant.
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Nos. 12 Cr. 691 (JFK)
15 Cv. 692 (JFK)
OPINION & ORDER
JOHN F. KEENAN, United States District Judge:
Before the Court is Defendant-Petitioner Dejvid Mirkovic’s
(“Mirkovic”) motion to substitute counsel for two cases pending
before the Court dated May 3, 2016.
On May 5, 2016, Mirkovic
also moved for a 90-day extension for new counsel to submit a
reply in Case No. 12 Cr. 691 (JFK).
In that case, on February
29, 2016, Mirkovic moved to compel the Government to file a
motion for sentence reduction under Federal Rule of Criminal
Procedure 35.
On March 15, 2016, the Court set a briefing
schedule on that motion and, with her consent, appointed
Mirkovic’s trial counsel, Susan G. Kellman, Esq., to represent
him.
The Government filed its response to Mirkovic’s motion on
April 11, 2016, and Ms. Kellman replied on May 2, 2016.
On February 9, 2015, Mirkovic filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
In this
related case, Case No. 15 Cv. 692, Mirkovic asserts ineffective
assistance of counsel by Ms. Kellman.
Mirkovic argues that his
assertion of ineffective assistance of counsel raises a
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potential conflict of interest for Ms. Kellman.
He requests
unconflicted counsel for both cases.
Prisoners have no constitutional right to counsel when
mounting collateral attacks upon their convictions. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
The Court did
not appoint Ms. Kellman to represent Mirkovic in his petition
under 28 U.S.C. § 2255 (Case No. 15 Cv. 692), and he continues
in that case pro se.
Along those same lines, whether to provide counsel on postappeal motions for reduction of sentence rests within the
discretion of the district court. See United States v. Reddick,
53 F.3d 462, 465 (1995).
In the Court’s view, as trial counsel,
Ms. Kellman stood in a unique position to address Mirkovic’s
claims.
In light of Mirkovic’s objection to Ms. Kellman’s
appointment, however, the Court withdraws its appointment of Ms.
Kellman to represent Mirkovic on this motion.
The Court
declines to appoint new counsel on this motion, because the
apparent merits of the motion do not justify such a burden and
expense. Id. at 465 n.2.
For the foregoing reasons, Mirkovic’s motion to substitute
counsel is DENIED AS MOOT in Case No. 15 Cv. 692, because no
counsel has been appointed for him.
Mirkovic’s motion to
substitute counsel is GRANTED IN PART in Case No. 12 Cr. 691,
insofar as Ms. Kellman’s representation is withdrawn and the
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Court will not consider her May 2, 2016 submission on Mirkovic's
behalf.
Mirkovic's motion to substitute counsel is DENIED IN
PART in Case No. 12 Cr. 691, insofar as the Court declines to
appoint new counsel to represent him on his motion to compel the
Government to file a motion for sentence reduction under Federal
Rule of Criminal Procedure 35.
Mirkovic's motion for a 90-day
extension for new counsel to become familiar with his case is
DENIED AS MOOT, however, the Court AMENDS its briefing schedule
dated March 15, 2016.
Mirkovic shall file his reply to the
Government's response no later than June 27, 2016.
SO ORDERED.
Dated:
New York, New York
May 11, 2016
s/JFK
(
John F. Keenan
United States District Judge
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