United States v. Harris ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4074
JAMES VERNON HARRIS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4615
JAMES VERNON HARRIS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4783
JAMES VERNON HARRIS,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-96-23)
Submitted: June 23, 1998
Decided: July 14, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
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COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant James Vernon Harris ("Harris") pled guilty pursuant to
a plea agreement to two counts of possession with intent to distribute
a Schedule I controlled substance in violation of 21 U.S.C.
§ 841(a)(1) (1994), one count of possession with intent to distribute
a Schedule II controlled substance in violation of§ 841(a)(1), and one
count of possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g) (1994). At his second sentencing hearing, Harris orally
moved to dismiss his counsel and withdraw his guilty plea, citing
ineffective assistance of counsel. The district court denied this motion
and sentenced Harris to 100 months' imprisonment.
Harris asserts on appeal that the district court erred in denying his
motion to dismiss counsel. Specifically, Harris contends that the court
failed "to apply the test of United States v. Mullen" in denying the
motion and thereby denied his Sixth Amendment right to effective
assistance of counsel. We disagree.
As the Government points out in its brief, United States v. Mullen1
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1 32 F.3d 891 (4th Cir. 1994).
2
does not establish a test that district courts must apply when consider-
ing motions to dismiss counsel. Rather, Mullen establishes three fac-
tors that an appellate court should consider when determining whether
a district court abused its discretion in denying such a motion.2
Further, an examination of these factors: timeliness of the motion,
adequacy of the court's inquiry into the defendant's complaint, "and
whether the attorney/client conflict was so great that it had resulted
in total lack of communication preventing an adequate defense,"3
clearly indicates that the district court did not abuse its discretion in
denying Harris's motion. First, Harris's motion was grossly untimely,
coming at his second sentencing hearing--over six months after he
pled guilty. Second, the district court made extensive inquiry into
Harris's arguments as to why none of his three attorneys was ade-
quate and received a variety of explanations, some involving allega-
tions of lies, conspiracies, and Harris's belief that he was "set up." But
as the Government points out, most of Harris's arguments in this
regard were centered around his belief that he did not commit the
crimes to which he pled guilty.
Finally, the district court heard considerable evidence that there
was no significant breakdown in attorney/client communications. In
fact, one of Harris's lawyers expressed surprise and claimed to be
"bereft for comment"4 when Harris suddenly informed the court that
he was dissatisfied with his counsel. Nothing in the record indicates
that Harris and his lawyers had come to a point where there was a
"total lack of communication," and we agree with the Government's
contention that Harris's dissatisfaction only arose when he began to
contemplate the time of imprisonment he faced as a result of his
guilty plea.
Therefore, we find that the district court did not abuse its discretion
in denying Harris's motion and affirm Harris's convictions and sen-
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2 See id. at 895; see also United States v. Johnson, 114 F.3d 435, 442
(4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct. 6,
1997) (No. 97-5705).
3 Mullen, 32 F.3d at 895.
4 J.A. at 53.
3
tence. While we grant Harris's motions to file supplemental briefs pro
se and have considered those materials, we find that none of the
issues raised therein alters our disposition of this appeal. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court, and argument
would not aid the decisional process.
AFFIRMED
4