Carl Smith v. Superintendent Mahanoy SCI ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2987
______________
CARL SMITH,
Appellant
v.
SUPERINTENDENT MAHANOY SCI; ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY PHILADELPHIA
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-03066)
District Judge: Honorable Jan E. DuBois
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 5, 2022
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Before: CHAGARES, Chief Judge, SHWARTZ, Circuit Judge, and PRATTER, District
Judge.*
(Filed: April 20, 2022)
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OPINION
______________
*
Honorable Gene E.K. Pratter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Carl Smith appeals the order dismissing his habeas petition under 28 U.S.C.
§ 2254. For the reasons that follow, we will vacate and remand for a hearing on Smith’s
Sixth Amendment choice of counsel claim.
I
A
1
In 2011, Smith was charged in an eight-count information with murder and
weapons offenses. Smith retained private counsel (“retained counsel”), who appeared at
both his preliminary hearing and arraignment. After his arraignment, the state trial court
appointed counsel (“appointed counsel”).
Appointed counsel appeared at pretrial conferences and obtained several
continuances for further investigation. On February 1, 2012, the trial court held a
scheduling conference and set Smith’s trial for March 18, 2013.
2
Five months before trial, in October 2012, Smith contacted the court several times
about appointed counsel’s performance. On October 9, 2012, Smith sent a letter
informing the court that he was “unhappy with the professionalism of [his] court
appointed attorney,” and believed there was “no hope” of reconciling their differences
and requesting new appointed counsel. ECF No. 10 at 471.
The next day, Smith filed a motion to appoint new counsel. In the motion, Smith
stated that he viewed appointed counsel as “ineffective” and reiterated that “there is no
2
hope of reconciliation.” ECF No. 10 at 203. Smith also listed specific concerns about
appointed counsel, including that counsel allegedly failed to (1) interview certain
witnesses, (2) consider an expert witness, (3) obtain a psychiatric evaluation, and (4)
meet with Smith. The record does not indicate whether the court addressed the letter or
motion, beyond confirming receipt and advising Smith that the court had forwarded a
copy to his appointed counsel.1
On October 31, 2012, Smith sent another letter to the Court, which mentioned his
motion and criticized both appointed counsel and his former retained counsel. In this
letter, Smith complained that retained counsel did not advise him of the benefits of a
motion to quash the charges and whether he was facing a capital case.2 As to appointed
counsel, Smith expressed frustration that he, rather than counsel, had to petition the court
to remove an erroneous designation on his docket regarding a mandatory minimum
sentence. He characterized both lawyers as “negligent[ly] handling” his case. ECF No.
10 at 229.
Smith then filed pro se two motions to quash the charges and a motion to compel.
3
On January 30, 2013, Smith sent a final letter to the court, requesting
transportation to his February 15, 2013 status hearing. Smith also wrote: “[i]t will also
1
When Smith’s family raised the funds to rehire retained counsel, the court may
have found it unnecessary to resolve his motion to appoint new counsel. The present
record does not, however, establish whether this explains the court’s approach.
2
In November 2012, Smith sent a letter to the prosecutor raising a similar
complaint about retained counsel and requesting discovery, a bill of particulars, and the
information in his case.
3
give me an opportunity to meet with my court appointed [counsel], whom I have yet to
meet since his appointment to my case.” ECF No. 10 at 477. The status hearing was
continued to February 19, 2013.
The record concerning the events of February 19, 2013 is murky. The court
indicated in a later opinion that retained counsel appeared at the status hearing and
advised the court that Smith had retained him again, but a transcript of the proceeding
indicates that neither Smith nor retained counsel were in attendance and that the court
reported hearing about retained counsel’s potential entry into the case from the
prosecutor.3 At some point, retained counsel also informed the court that he would be
unable to go forward on the scheduled March 18, 2013 trial date. In a post-trial motion,
retained counsel represented that he informed the court he had obligations in a federal
criminal matter and that the Commonwealth had no objection to adjourning the trial. In
the same motion, retained counsel acknowledged that that while the court “refused to
grant a continuance,” it would permit him to enter his appearance so long as he would be
ready to try the case on the scheduled date. Retained counsel did not enter an
appearance.
4
On the first day of trial, both appointed and retained counsel appeared. The court
engaged in the following exchange with counsel:
The Court: You’re ready?
3
The Commonwealth says that the transcript suggests that an off-the-record
meeting occurred between the court, the prosecutor, and retained counsel.
4
[Appointed counsel]: Judge, I’m somewhat ready. To be totally honest with
the Court, I’ve spoken to my client this morning and he still would like to
have counsel replaced. The added factors —
The Court: Somebody can come in today? The case is ready today. The
court officer is now getting the jury. So I don’t have any problem, as I
explained to [retained counsel] when he first raised this issue a month or so
ago, if [retained counsel] is ready and Smith wants to be represented by
[retained counsel], fine. Are you ready, [retained counsel]?
[Retained counsel]: Judge, as I told the Court before—
The Court: Fine enough. Then the answer is no.
[Retained counsel]: —I’m not ready.
The Court: Okay.
[Retained counsel]: Okay. May I be excused?
The Court: Yes, Sir.
ECF No. 10 at 480. Appointed counsel represented Smith during the three-day jury trial.
The jury found Smith guilty of murder, two firearms offenses, and possessing an
instrument of crime. After a brief recess, the court sentenced Smith. Smith addressed the
court and stated: “I am a little upset. You know, the fact of the matter is that I did try to
hire an attorney that I was comfortable with. For some reason, I wasn’t able to get that
attorney. [Appointed counsel] didn’t do a good job, [and] I don’t think it was the best of
his ability.” ECF No. 10 at 883. The court sentenced Smith to the mandatory sentence of
life in prison.
5
After the trial, retained counsel entered his appearance on Smith’s behalf and filed
post-trial motions. Retained counsel argued, in relevant part, that the trial court erred by
failing to allow Smith to be represented by the lawyer of his choosing. The motion was
denied. On appeal, Smith filed a motion to remand for an evidentiary hearing on his
request for a continuance to allow him to have counsel of choice. The Superior Court
5
denied the motion to remand without prejudice and subsequently affirmed Smith’s
judgment, concluding that the record supported the trial court’s decision to deny the
continuance. The Supreme Court of Pennsylvania declined review.
B
Smith filed a pro se petition in state court under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541 et seq., challenging his convictions on numerous
grounds, though he did not reassert his choice-of-counsel claim. Smith then filed a
habeas petition under 28 U.S.C. § 2254, reasserting his choice-of-counsel argument
among others. The Magistrate Judge recommended that Smith’s petition be denied
without an evidentiary hearing. Smith v. DelBalso, No. 19-cv-3066, 2020 WL 5261016,
at *17 (E.D. Pa. Mar. 4, 2020). As to Smith’s choice-of-counsel claim, the Magistrate
Judge concluded that the Superior Court did not unreasonably apply federal law when
holding there was no abuse of discretion in denying the continuance. Id. at *10-11. The
District Court overruled Smith’s objections to the Magistrate Judge’s findings and
recommendations and adopted them. Smith v. DelBalso, No. 19-3066, 2020 WL
5258437, at *1-2 (E.D. Pa. Sept. 3, 2020). Smith sought a certificate of appealability,
which we granted to address whether the state trial court violated his Sixth Amendment
rights when it denied his request for a continuance and prevented him from proceeding to
trial with his counsel of choice.4
4
We also granted a certificate of appealability on Smith’s related due process
claim, but he presented no due process arguments. A certificate of appealability was not
sought concerning Smith’s request for an evidentiary hearing, but we may sua sponte
6
II5
A
When a district court dismisses a habeas petition without an evidentiary hearing,
our review of its order is plenary. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).
Because the state court adjudicated Smith’s claim on the merits, we apply the same
standard of review as the District Court. Blystone v. Horn, 664 F.3d 397, 416-17 (3d Cir.
2011). This typically means that we examine whether the state court’s adjudication was
contrary to or involved an unreasonable application of clearly established federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1).
B
The Sixth Amendment provides criminal defendants the right to counsel of choice.
United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006); Powell v. Alabama, 287
U.S. 45, 53 (1932). Because an erroneous deprivation of counsel of choice is a structural
error not subject to harmless-error review, a defendant need not demonstrate prejudice
resulting from the deprivation. Gonzalez-Lopez, 548 U.S. at 146-47, 150.
The right to counsel of choice, however, is not without limits. For example, a
defendant cannot invoke this right to demand a particular lawyer he cannot afford or who
declines to represent him. Wheat v. United States, 486 U.S. 153, 159 (1988). A trial
court also possesses “wide latitude in balancing the right to counsel of choice against the
expand the certificate of appealability if the circumstances of a particular case so require.
3d Cir. L.A.R. 22.1(b); Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004).
5
The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. This
Court has jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
7
needs of fairness and against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at
152 (citations omitted). Although the Supreme Court has not precisely delineated how
courts should approach “scheduling and other decisions that effectively exclude a
defendant’s first choice of counsel,” it is clear that the arbitrary denial of a continuance to
allow such counsel violates the Sixth Amendment. Id. at 152.
As the Supreme Court observed in Martel v. Clair, “courts cannot properly resolve
substitution motions without probing why a defendant wants a new lawyer.” 565 U.S.
648, 664 (2012). While a hearing is not required in all cases, “[i]n the mine run of
circumstances,” a defendant’s request for substitution premised upon dissatisfaction with
counsel typically “require[s] the court to make further inquiry before ruling on [a] motion
for a new attorney.” Id. at 665.6 The Martel Court explained that an “on-the-record
6
Martel teaches at least two things. First, courts should apply an “interest of
justice” standard for motions to replace counsel under 18 U.S.C. § 3559, and consider
factors, such as “the timeliness of the motion; the adequacy of the district court’s inquiry
into the defendant’s complaint; and the asserted cause for that complaint, including the
extent of the conflict or breakdown in communication between lawyer and client (and the
client’s own responsibility, if any, for that conflict).” Martel, 565 U.S. at 663. The
factors discussed in Martel were derived from noncapital cases and thus may be
considered outside of the § 3559 context. Id. at 663. Second, for motions to substitute
counsel in general, “courts cannot properly resolve substitution motions without probing
why a defendant wants a new lawyer,” though this will not always require a hearing. Id.
at 664; see also United States v. Velazquez, 855 F.3d 1021, 1034 (9th Cir. 2017)
(observing that frequently, a court cannot properly resolve a substitution motion without
probing why a new lawyer is sought, but “[f]ailure to conduct an inquiry is not
necessarily an abuse of discretion if the trial court has sufficient information to resolve
the motion”); United States v. Jones, 795 F.3d 791, 797 (8th Cir. 2015) (concluding no
abuse of discretion in denying request without inquiry because the Defendant’s motion
“thoroughly explained his reasons for requesting a new lawyer, and the district court had
all the information necessary to make a ruling”); but see Peterson v. Smith, 510 F. App’x
356, 366 (6th Cir. 2013) (nonprecedential) (noting that “such inquiry is not required by
clearly established Supreme Court precedent”).
8
inquiry into the defendant’s allegations ‘permits meaningful appellate review’ of a trial
court’s exercise of discretion.” Id. at 664 (quoting United States v. Taylor, 487 U.S. 326,
336-37 (1988) (alteration omitted)). Thus, where a defendant’s request for substitution of
counsel could warrant a continuance, the court must determine the defendant’s reasons
for the request to properly balance the defendant’s Sixth Amendment rights against
“fairness” and “the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 152.
C
Based on the present record, we are unable to determine whether the court
considered or probed why Smith wanted to reemploy retained counsel. Smith sent
multiple letters expressing concerns about his appointed counsel. He also filed a motion
to appoint new counsel. The record, however, is silent as to whether the court addressed
the letters or the motion. Moreover, the transcript of the February 19, 2013 status hearing
does not reveal Smith’s presence or even a discussion about Smith’s letters or why Smith
sought to change counsel. Furthermore, the record contains contradictory information as
to what happened both on and off the record in February 2013 concerning retained
counsel’s reappearance in the case. Compare ECF No. 39 at 4-5 (Court reporting to
appointed counsel that retained counsel had made contact with ADA about possible
representation of Defendant), with ECF No. 10 at 89 (Court reporting that it had direct
contact with retained counsel at the February 19, 2013 status hearing, which is belied by
the transcript), and ECF No. 10 at 102 (retained counsel indicating that he and ADA
appeared before the Court “[a]pproximately five (5) weeks prior to trial,” and retained
counsel communicated that Smith had retained him but he had a scheduling conflict). It
9
is unclear when Smith (directly or through counsel) first communicated his desire to
rehire retained counsel to the court and when a request for a continuance was made, if at
all. Finally, the Superior Court did not have the February 19, 2013 transcript when it
ruled, and we thus cannot say whether it would have impacted its decision. ECF No. 10
at 60-61 On this record, we cannot determine whether the state court’s adjudication of
Smith’s Sixth Amendment claim, including the denial of an evidentiary hearing, resulted
in a decision contrary to, or involved an unreasonable application of, clearly established
federal law.
Because we lack sufficient information concerning whether the court properly
balanced the Sixth Amendment right to choose counsel, and “[i]nasmuch as these
questions can be decided only after an evidentiary hearing . . . and because the district
court did not hold such a hearing, we shall remand the case for this purpose.” United
States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980) (per curiam); but see Martel, 565
U.S. at 666 n.4 (observing that vacating denial of habeas petition was “wrong remedy,”
but that remand would be appropriate to decide whether substitution was appropriate).7
III
7
To prevail on his habeas petition, Smith bears the burden of demonstrating that
the state court’s decision was “‘contrary to’ federal law then clearly established in the
holdings of [the Supreme] Court,” “‘involved an unreasonable application of’ such law,”
or “‘was based on an unreasonable determination of the facts’ in light of the record
before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28
U.S.C. § 2254(d)(1), (2)). Nothing herein constitutes a ruling concerning whether he has
carried this burden.
10
For the foregoing reasons, we will vacate the District Court’s order on only
Smith’s Sixth Amendment choice-of-counsel claim and remand for a hearing on this
claim.
11