Monday, December 26, 2011

Case o' The Week: New Counsel? Post-Trial -- Beltran Valdez and Interlocutory Appeals of Motions for New Counsel

After Booker, can the Chair of the Sentencing Commission make mandatory law? Can he make sure that district courts follow his guidance, with none of this newfangled "advisory" nonsense?

Sure -- just come out West and sit by designation in the Ninth.
United States v. Beltran Valdez, 2011 WL 5839671 (9th Cir. Nov. 21, 2011), decision available here.

: Decision by Vt. District Judge William K. Sessions III (Chair of the United States Sentencing Commission) (right). See newsletter here.

Facts: Beltran Valdez was charged with illegal reentry and appointed counsel. Id. at *1. Relatively early in the case, he requested and was appointed new counsel. Id. at *1. Six months later, on the eve of trial, Beltran Valdez again requested appointment of another new attorney. Id. The district court denied that request, but allowed the defendant to represent himself with the CJA attorney remaining as advisory counsel. Id. Before the trial, Beltran Valdez filed a notice of appeal of his denial of a motion for new counsel. Id.

Issue(s): “The government moved to dismiss the appeal for lack of jurisdiction on the grounds that the order was not final, and does not satisfy the requirements of the collateral order doctrine.” Id. at *1. “In order to qualify for review under [the collateral order doctrine], an order ‘must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Id. “We have not addressed the issue of whether an order denying appointment of replacement counsel is immediately appealable.” Id. at *2.

Held: “[T]he order fails to satisfy the third element.” Id. at *2. “Post-conviction review of asserted Sixth Amendment deprivations such as denial of a right to represent oneself, denial of appointment of counsel, or denial of counsel’s request to be replaced because of a conflict of interest, is fully effective.” Id. “We join [the Second, Third, Fourth and Eight Circuits] and hold that the collateral order doctrine bars the immediate appeal of an order denying a request to appoint replacement counsel. Accordingly, we lack jurisdiction under the collateral order doctrine.” Id.

Of Note: When appellate jurisdiction is iffy, the defense Hail Mary is the petition for a writ of mandamus – a shot of getting in front of the Ninth when there are “sufficiently exceptional circumstances.” Id. at *1. See generally Kerr v. United States District Court, 426 U.S. 394 (1976), decision available here.

Mandamus was a popular gambit during the early Apprendi era, when we were challenging § 1326 indictments. In a promising sign in this case the Court directed the parties to brief whether it should construe the appeal as a petition for writ of mandamus. Id. at *1. Sadly, the panel’s interest was a tease: the Court ultimately “decline[d] to treat the appeal as a petition for mandamus.” Id. at *2.

How to Use: Beltran Valdez is a familiar scenario for any experienced CJA counsel who has tried to stand between a client and the buzz saw of trial on a hopeless case. Here, this § 1326 defendant was (trying) to get his third appointed attorney, and ultimately went pro se on the eve of trial. Id. at *1. The opinion isn’t a surprising result, from an institutional perspective: the Ninth is loathe the gum up the gears of justice with interlocutory appeals on the eve of trials.

From the defense perspective, however, it is a lousy rule: a defendant can only appeal a motion to fire counsel after getting hammered in a trial – with the higher sentence that results. That is a big price to pay to preserve a core Sixth Amendment issue. Bear Beltran Valdez in mind if chained to an unhappy client and forced together through a trial: make sure to make the record of the client’s dissatisfaction, because that Sixth Amendment issue can only be raised on direct appeal after the train wreck of a trial.

For Further Reading: Another chapter in the tragicomic “birther” saga closed last week, with Drake v. Obama, et al., 2011 WL 6415354 (9th Cir. Dec. 22, 2011). In Drake, Judge Pregerson wrote for the panel considering whether Obama was “constitutional ineligible to be President of the United States” because he was (allegedly) not born in Hawaii. Id. at *1. The district court denied the plaintiffs’ civil suit for lack of standing. Id. at *2.

Judge Pregerson and the panel affirmed, and adopted what appears to be a new rule in the process: candidates don’t have “competitive standing” to sue if their claim comes after the election. Id. at *6.

Will be interesting to see how the Drake "competitive standing" rule affects election litigation in the months leading up to Tuesday November 6, 2012 . . . .

Image of the Honorable William Sessions III from

President Obama's long-form birth certificate from

Steven Kalar, Senior Litigator N.D. Cal FPD Website at


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