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Case number 12-3035, United States of America versus Weldon-Gordon Appellant.

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Mr. Latimer for the appellant, Mr. Smith for the appellant.

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Good morning.

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Good morning, Your Honor.

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What I would say is a fundamental miscarriage of justice in that it was Mr. Gordon was denied the right to counsel of his choice.

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Mr. Gordon was on trial for his life.

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There's no question about that.

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And I guess that there have been a number of maneuverings up until about September.

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And he was appointed counsel, Mr. Saunders, Mr. Thomas Saunders.

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I believe it was on the September 19th.

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Four days later, Mr. Gordon sends a letter to the court telling him that he cannot work with Mr. Saunders and that he would like... That wasn't the first time, was it?

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That wasn't the first time he had reported difficulty with counsel.

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That wasn't.

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That wasn't the first time he had reported difficulty with counsel, but... In your brief, you criticize... You say that the district court didn't consider the Burton factors.

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But the transcript shows that it did.

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What's your basis for arguing that the district court did not consider the Burton factors?

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Well, first of all, if he considered the Burton factors, then the ruling would not have been as it was, because Mr. Gordon had never had a continuous before.

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Mr. Gordon was put in a position where he was seeking to hire his own counsel.

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So we had a fundamental... So you don't like the way the district court considered the Burton factors, right?

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You think they weighed them incorrectly.

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So did I misunderstand?

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I thought your argument was that they didn't consider the Burton factors.

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Well, I don't think he considered the factor that Mr. Gordon had not had a continuance previously.

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I don't think that that was taken into account at all.

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I don't think that it was taken into account.

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that Mr Gordon was seeking to retain, Mr Gordon was seeking to retain paid counsel and not have the court just give him another lawyer.

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It was a different scenario.

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In this case, he had such a fundamental problem with the lawyer that he was being forced, that was being forced upon him that he was seeking to hire his own counsel.

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And so when the district court did that, and I don't think that one of the factors of burden is whether or not the district court is retiring.

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I don't think that that is something that should have come into the equation.

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And I think that that puts this in a different situation.

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And when you have a situation like this, where a guy is trying to hire his own lawyer, and all he's doing is saying, I'm so fundamentally at odds with the lawyer that I have, I want to hire my own.

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And the district court says no.

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And at the time he does this, there's no trial date set.

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The district court hasn't set a trial date.

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There's nothing to be rescheduled, because nothing is scheduled at that point.

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When Mr. Gordon tries to speak at his hearing about counsel, the trial court tells him, no, I'm not going to hear from you, and allows a colloquy about the qualifications of Mr. Saunders.

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Well, as I said in my brief, that's like giving a blind man a Ferrari.

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And then when he asks for a CNI dog, tell him you'll do better off with the Ferrari.

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It doesn't help me.

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The fact that he may be, on paper, the greatest guy in the world.

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But if I don't get along with him, and I don't think he's going to help me, and I want another lawyer, I should have that choice.

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That's not an unlimited right, right?

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A defendant's personal preferences doesn't give him an unlimited right to counsel of his choice when it's being paid for by the public, does it?

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I agree 100%.

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And that's why we have the Burton factors, right?

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That's right.

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But in this case,

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even when you consider all of that.

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The trial court precluded him from even having a paid lawyer assist him.

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Mr. Gordon says, all right, I can't work with this guy, so I'm going to hire a lawyer to assist me

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So he can communicate to Mr. Saunders.

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The trial court tells him he can't even hire a lawyer to help himself.

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If I could change the course just a little bit, I have a question or two.

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Before the district court, you raised ineffective assistance of counsel claims, right, in your 2255 motion, right?

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actually what happened was after I was retained to handle the appeal and we got the transcripts and I realized what was going on, we filed a 2255 motion here, there, held, asked this court to hold the appeal in abeyance.

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And in that 2255, you made – I'm calling them generally ineffective assistance of counsel claims, right?

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I mean, that was the gravamen of your petition, was that trial counsel had misperformed.

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Yes, sir.

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Now, why shouldn't we – but here, for us, you're raising some new

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ineffective assistance of counsel claims, right?

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Those related to the DNA expert and the cell tower expert, you didn't raise those in your 2255 motion in the district court, is that correct?

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Is that right?

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Did I misstate that?

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You did raise those below?

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We raised the issue of effectiveness of the council at trial.

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Yes.

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What you're saying is DNA expert and did you talk about the DNA expert and the cell tower experts?

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We did not go into the specifics in detail as you're asking.

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You're correct.

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Yeah.

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So you did say that the inability or

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the lack of cross examination of expert witnesses was one aspect of the ineffective assistance.

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Absolutely.

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And to me, you said that in the district.

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That was the argument.

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I did not agree with you, Judge Griffin.

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We did not go into

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the minute detail that I did.

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So why haven't you forfeited those arguments?

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Well, I don't believe that the arguments are forfeited.

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They were raised.

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They just weren't raised as I just didn't have as great a detail.

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So your theory is you can say trial counsel was ineffective and failure to conduct adequate cross-examination, but then before us, for the first time, raise the specifics of that.

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Well, I don't believe that that's... The idea here isn't that the district court should have a chance to take a look at this before we do.

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Did the district court have a chance to look at an argument regarding the DNA experts and the cell tower experts?

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Well, the transcript, the reason that we held it in advance was so that all of the transcripts were available, so it was available to the district court, yes.

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But fundamentally, we did say the cross-examination expert.

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Your argument that there was ineffective assistance of counsel for failure to call a DNA expert or a cell tower expert, that was before the district court?

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The district court heard something like that?

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The district court, our argument before the district court was more precisely with respect to the cross-examination of those experts.

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The procedure in this court which is rather unique of allowing ineffective assistance to be raised on appeal

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And you know what we usually do is send it back to the history court for a hearing.

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But in effect, the other circuits don't follow that.

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It's the functional equivalent of a 2255 motion.

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This is basically what we've done.

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And so my question is why,

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Why shouldn't we consider the issues you're raising on appeal to be a second successive habeas corpus petition?

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Because our procedure makes it the functional equivalent of a 2255.

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And if that's the case, to follow up on Judge Griffith's question, why aren't you barred under Section 2244?

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There's no newly discovered evidence, and there's no intervening Supreme Court case.

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And in that situation, you're barred.

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What we were trying to do was that there had been no representation, at least from my perspective, of Mr. Gordon in any effective way throughout.

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When once we came in and the appeal had been filed by Mr. Saunders, but the case had lay basically dormant.

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And so the transcripts are ordered, the transcripts come in, and now we have this issue that, in my view, is glaring in terms of the ineffective assistance of counsel.

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And so we ask this court

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to hold in abeyance the appeal.

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Why didn't you appeal the 2255?

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It's our position that the 2255, which is part of the Joint Appendix, and the notice of appeal is with respect to all the orders and judgments of the court below.

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And so because all of those things are included, then it is properly before the court.

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Because I think that the case law indicates that, you know, we don't get into a technical thing.

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We don't go through and say every order that the court rules on is included.

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But you didn't file a document called a notice of appeal of the 2255, did you?

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I didn't file the original notice of appeal or any other appeal.

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The appeal had already been filed.

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For us to agree with you, we would have to take a broad view saying, well, he didn't file a notice of appeal, but the court was on notice of the appeal.

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Is that your argument?

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Well, I think you would have to, I guess, follow previous interpretations of the notice of appeal.

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But in this situation, I mean, as I said, the court was asked specifically to hold this matter in abeyance while the 2255 was being considered.

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You're patched to your time.

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I don't believe you asked for rebuttal time, but we'll give you some time.

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We'll hear from the government now.

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Thank you.

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Mr. Smith, good morning.

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Good morning.

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May it please the Court.

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Peter Smith on behalf of the United States.

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The District Court did not err in

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refusing to continue appellant's trial date so that appellant could retain new counsel.

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District Court held two separate hearings addressing this issue.

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It thoroughly went through the burden factors, and the District Court's decision is fully supported by those factors.

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The District Court found, and that finding is entitled to deference by this Court, that the safety of witnesses, for example, augured towards the denial of the continuance that appellant's request was

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dilatory in that it was made immediately before trial.

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He had made substantially the same complaint about a previous set of attorneys before that, that it would have caused a substantial, even extraordinary delay.

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What exactly is our standard of review on this issue?

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Well, the

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The government has argued that Apolline has waived his claims by failing to appeal the denial of his 2255.

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Right.

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Assume not on that.

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But what I was going to say is I think that that argument better applies to the ineffective assistance claims, that the standard of review

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for the burden factor claim, the claim about the denial of the continuance, would be the standard set forth in Burton, which is abuse of discretion plus, I think the court talks about, clearly abused its discretion or something like that.

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And here you don't have that for the reasons that I suggested.

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Each of the burden factors that the government lays out in its brief supports the denial of the continuance request.

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Can you get to the 2255 issue and the waiver question, the forfeiture question?

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Appellant didn't appeal the denial of his 2255 motion and our position... Well, he didn't file a notice of appeal, but if we disagree with you on that, that the court was on notice that he was appealing the 2255, could you speak to the issue of

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forfeiture of any of his arguments would be before us now, or preserved, or which weren't.

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I don't think you covered that in your briefing, which was surprising.

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Not exactly.

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We have a footnote where we argue the waiver point, and I guess the subsidiary point, is if the court finds that it's not wholly waived, there would still be no reason to remand

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in a Rashad sort of situation where the court normally remands for additional fact-finding because appellant has already had that opportunity in the district court.

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The district court already looked at appellants 2255.

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Do you think he has waived or forfeited any of his arguments?

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The expert argument in particular?

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Well, I think that the arguments he raised in his 2255 are the same.

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They're the same claims that he raises on appeal.

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And appellant's only argument today

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I understand him to be saying that on appeal, he was more specific about what exactly the expert should have done or said.

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But he did raise a claim that counsel should have hired an expert or should have considered hiring an expert in the 2255 proceeding.

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So when I matched up the claims between the appeal and the 2255, I think they're the same.

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But I think what the court is really asking about is what- Well, that would mean he'd preserve those arguments.

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If we found that he had

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appealed, then you're saying he hadn't forfeited any of them?

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Well, I guess you're suggesting that if... I'm just asking.

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I'm not suggesting anything.

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I'm trying to understand it better.

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If the court were to find that he had appealed the 2255, I would say the plans

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raised in the two different readings are the same.

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But I would say that even barring a whole waiver where the court wouldn't even consider those arguments, there's no need for a Rashad-type remand because he's already had that.

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The court wouldn't need to remand the case.

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Yeah, we can just then go to the merits of the arguments, right?

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My question is, which of his arguments is properly before us?

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Which of his 2255 arguments is properly before us?

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And the government is saying, they all are.

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If we think he did appeal, they all are.

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if you think he appealed against.

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So what about the merits of the expert claim?

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What's your response to that?

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Well, I guess you have a number of responses.

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One is that that is the typical sort of tactical judgment that this court doesn't second guess.

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The district court also found that both the trial judge, I mean, the district court found that there wasn't.

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Just to call it tactical doesn't make it reasonable.

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It doesn't immunize it.

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There is law that says that this court doesn't second guess that type of a tactical judgment.

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And then of course, of course, appellant hasn't shown any sort of prejudice.

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from the lack of the expert.

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And the government's brief details a number of reasons that his supposed strategies, the ones that he raises in his appellate brief and in honor five, would have actually backfired.

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And we can, of course, discuss each one of those piece by piece.

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But I think that the government's brief lays out in detail why those would have backfired, or at least in the case of the experts, it was unnecessary.

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Appellant hasn't pointed to any specific prejudice that he

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that he has had from the lack of an exercise.

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So it's more, you'd lean heavier on the prejudice ground there, it sounds like.

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Right, I mean, it was a tactical judgment, but also counsel pursued an alternative strategy.

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which was to try and file a motion eliminating and try and get all of the government's evidence and experts excluded.

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And the earlier council did actually pursue hiring experts, and I think considered using them at the motions hearing in this case, but I don't believe they ultimately did.

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But there is a fleeting in the district court's docket where councils sought

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to reimbursement for some experts.

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I didn't know what exactly they were going to do.

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An appellant hasn't proffered on appeal, and that's part of our argument.

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He hasn't said specifically what these experts would do, how they would have assisted his defense.

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So under Strickland, he simply wouldn't prevail on the merits.

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As we argued in our brief, even if the court were to review all of the ineffective assistance claims,

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He, Appellant, simply hasn't made out the two Strickland bonds.

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Yeah, I don't think he's even really argued.

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He's made a sort of global argument.

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But he hasn't argued specifically how each of the things he's complained about prejudiced his defense in any way.

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At least, I didn't see that in his speech.

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I just wanted to mention one or two things that one or two things Appellant's Council said earlier today.

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He said that at the time the district court denied the continuance request, no trial date had been set.

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Of course, as the government pointed out in this brief, the trial date was set that day.

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And all the participants knew going into that hearing that the trial date would be set that day.

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Helen also argued, made a number of other arguments, all of which are addressed in the government's brief.

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For example, he complained that Judge Rubino was going to retire, and that somehow motivated the decision on the continuance request.

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And that's the way it isn't the case.

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Court.

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The problem, the lawyer that he wanted to replace the counsel appointed by the court had another trial scheduled.

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He did, and that's one of the arguments that we made that the district court's decision was supported by the burden factors, is that appellant's preferred counsel, Brian McDaniel, was not available for appellant's trial date.

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So that would have necessitated a continuance.

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And it was a lengthy trial that was trying to play?

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It was.

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It was a multiple defendant drug conspiracy trial, and at the time,

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The defense proffer was that they would need a three-month continuance, but Judge Rubina believed that the continuance would be longer than that.

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Does the three months include the time for preparation?

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No.

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That was the time of the Benbow trial, which was before Judge Collier.

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It was supposed to end in May, and it began at the end of January.

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How long did that trial actually last?

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It lasted at least that long.

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I didn't look in the last couple of days, but when I wrote the brief, I did look at that.

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And it did last quite a long time.

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And Judge Urbina believed that Mr. McDaniel would need time after the conclusion of that trial to prepare for this trial.

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And of course, you have to find a date when all of the counsel and witnesses are available and the court in order to schedule the

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the case.

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So Judge Urbino was really thinking that the continuance request was going to be five or six months and not three months.

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Given some of the factors that we mentioned earlier today and in our brief, the district court certainly didn't clearly abuse its discretion in making that finding.

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And it's got away all those factors.

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That's the whole point of the burden case.

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There are no further questions.

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We urge the court to affirm the judgment of this report.

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Thank you very much.

[00:20:58] Speaker 03:
Thank you.

[00:20:58] Speaker 03:
Mr. Latimer, if you have something to rebut and rebuttal to what Mr. Smith just said, you'll have a minute.

[00:21:05] Speaker 01:
Thank you.

[00:21:07] Speaker 01:
The fact that Judge Irvina thought that Mr. McDaniel may have needed time to prepare, I don't think trumps Mr. McDaniel, who told the court when he could be available that he would be available shortly after the trial.

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So when you're looking at this, and again, when you're taking into account the burden factor,

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You have to look at it also.

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The defendant, as he said, everybody knows going into this hearing that they were going to settle trial.

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They were everybody but Mr. Gordon.

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Mr. Gordon is the only person that is not being apprised of anything.

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I mean, his appearance is weighed by counsel that he's telling the court that he doesn't get along with, and they're conducting business outside of his presence.

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He doesn't know that Mr. Samas is being appointed.

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He doesn't know anything about this, and that is what we're saying was fundamentally unfair.

[00:22:10] Speaker 01:
Thank you very much.

[00:22:10] Speaker 01:
We have your argument.

[00:22:11] Speaker 01:
Thank you, sir.

[00:22:12] Speaker 01:
The case is submitted.