Opposition Brief — Michael Barrett, Petitioner v. United States

No. 18-5209

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

MICHAEL BARRETT, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

FRANCESCO VALENTINI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether the district court abused its discretion in

denying petitioner’s motion to appoint a new attorney to represent

him on appeal.

2.

Whether petitioner was denied the effective assistance

of counsel on appeal because he was represented by the attorney

that he had unsuccessfully moved to replace.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-5209

MICHAEL BARRETT, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-2) is not

published in the Federal Reporter but is reprinted at 718 Fed.

Appx. 288.

The orders of the district court are unreported.

JURISDICTION

The judgment of the court of appeals was entered on April 6,

2018.

The petition for a writ of certiorari was filed on June 28,

2018.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Northern District of Texas, petitioner was convicted of

conspiracy to possess with intent to distribute 50 grams or more

of a mixture containing methamphetamine, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(B). Judgment 1. The district court sentenced

petitioner to 420 months of imprisonment, to be followed by four

years of supervised release.

affirmed.

1.

Judgment 1-2.

The court of appeals

Pet. App. 1-2.

Between at least January 2014 and April 2016, petitioner

conspired with others to distribute methamphetamine in Fort Worth,

Texas.

Presentence

Investigation

Report

Superseding Indictment (Indictment) 1.

(PSR)

¶

9;

Second

One of his suppliers was

Tonya Blackwood, who gave petitioner three or more ounces of

methamphetamine every other day for about eight months, for a total

of at least 10,206 grams.

PSR ¶¶ 11-12; C.A. ROA 760-761.

Petitioner also obtained at least 9468 grams of methamphetamine

from other sources. PSR ¶¶ 15-21; Addendum to PSR ¶ 26. Petitioner

distributed those drugs to more than a dozen customers and allowed

others to distribute methamphetamine at his home.

PSR ¶¶ 10, 23.

He also kept a .45-caliber firearm at his residence for protection.

PSR ¶ 9.

A federal grand jury in Northern District of Texas charged

petitioner with conspiracy to possess with intent to distribute 50

grams or more of a mixture containing methamphetamine, in violation

3

of 21 U.S.C. 841(a)(1) and (b)(1)(B).

Indictment 1-2.

pleaded guilty without a plea agreement.

Petitioner

Plea Tr. 1-24.

At the

plea hearing, petitioner stated that he was satisfied with his

court-appointed attorney.

2.

a.

The

Id. at 20.

Probation

Office

conducted

a

presentence

investigation and prepared a presentencing report for the district

court.

The

Probation

Office

initially

recommended

holding

petitioner accountable for 14.5 kilograms of methamphetamine and

calculated an adjusted offense level of 40.

PSR ¶¶ 26, 35-42.

The Probation Office further recommended a three-level reduction

for acceptance of responsibility, which would yield a total offense

level of 37.

PSR ¶¶ 44-46.

Combined with a criminal history

category of IV, the recommended advisory Guidelines range was

initially 292 to 365 months of imprisonment.

In

response,

petitioner

filed,

through

PSR ¶¶ 59, 104.

his

attorney,

19

objections to the presentence report, which disputed, among other

things, the amount of methamphetamine he received from Blackwood,

that he received drugs from other suppliers, and the occurrence of

drug preparations and transactions at his residence.

to the PSR 1-5.

Objections

Shortly thereafter, petitioner wrote a letter to

the district court requesting a new attorney.

C.A. ROA 248-249.

Petitioner complained that his current attorney had told him that

the only legal book at petitioner’s disposal, “Busted by the Feds,”

was wrong and that his attorney was “not being very professional.”

Id. at 248.

Petitioner also stated that his attorney had “not

4

kept

attorney

client

privilege”

and

objections to the presentence report.

had

prepared

inadequate

Id. at 248-249.

The district court ordered petitioner’s attorney to meet with

petitioner in person “to the end of resolving any problems existing

between them” and thereafter to “file a report with the court

* * *

concerning such meeting.”

D. Ct. Doc. 886, at 1 (Dec. 5,

2016).

After holding the meeting, defense counsel reported that

petitioner’s concerns appeared to have been resolved.

See C.A.

ROA 275.

b.

The

presentence

Probation

report

Addendum to PSR 1-8.

in

Office

response

filed

to

an

addendum

petitioner’s

to

the

objections.

With minor exceptions, the Probation Office

rejected petitioner’s objections.

Id. at 1-6.

And the objections

that the Office accepted -- e.g., correcting the location of

petitioner’s wedding -- had no effect on the report’s Guidelines

calculations.

Id. at 6.

The Probation Office noted, however,

that it had inadvertently omitted 5173 grams of methamphetamine

from its initial drug-quantity computation.

Id. at 4.

Correcting

that omission increased petitioner’s total drug quantity to 19,674

grams and his adjusted offense level to 42.

Id. ¶¶ 26, 35-42.

In

addition, the Probation Office took the view that petitioner’s

objections

falsely

denied

or

frivolously

contested

relevant

conduct, and it accordingly withdrew its recommendation of a threelevel acceptance-of-responsibility adjustment.

Id. at 6-7.

The

5

revised

advisory

imprisonment.

c.

Guidelines

range

was

360

to

480

months

of

Id. ¶ 104. 1

On the eve of sentencing, petitioner’s attorney filed

a motion for a continuance.

Unopposed Mot. to Continue Sentencing

1-3 (Jan. 19, 2017). Counsel stated that, according to petitioner,

information presented at petitioner’s pre-trial detention hearing

might

support

petitioner’s

objections

to

the

attributable to his dealings with Blackwood.

drug

quantity

Id. at 1.

Counsel

explained that he was waiting for the hearing transcript from the

court reporter.

Id. at 1-2.

At the sentencing hearing the following day, however, the

government explained that the same evidence -- namely, statements

made by Blackwood that the presentence report did not credit -was reflected in Blackwood’s interview report, which was already

part of the sentencing record.

attorney

insisted

that

he

Sent. Tr. 6-8.

needed

the

When petitioner’s

transcript,

the

court

criticized him for not conducting a preliminary review of the

detention hearing’s audio recording:

COURT: Well, you don’t know what’s in the transcript. You

don’t know what would be in it. Mr. Davis, you just haven’t

done what you should do to cause me to grant a continuance

based on the ground that you haven’t found out what was said

at the initial appearance.

DAVIS: Well, your honor, with all due respect, I have never

in 15 years of appearing in the Northern District heard of an

The applicable 40-year statutory maximum sentence

supplied the high end of petitioner’s revised Guidelines range.

Addendum to PSR ¶ 104; see Sentencing Guidelines § 5G1.1(a).

1

6

attorney just listening to the court’s audio recording there,

and perhaps—

COURT: You would have heard of it in this case if you would’ve

done your job.

Id.

at

9-10.

continuance,

The

court

denied

petitioner’s

finding

that

petitioner’s

request

attorney

had

for

“a

a

full

opportunity to present to the Court everything [he] need[ed] * * *

to present [his] client’s position.”

Id. at 38.

The court adopted

the

Guidelines

computation

revised

presentence

report’s

and

sentenced petitioner to 420 months of imprisonment, to be followed

by four years of supervised release.

3.

Id. at 37-39.

Three days after sentencing, petitioner mailed a pro se

notice of appeal to the district court.

(Jan. 25, 2017).

D. Ct. Doc. 1100, at 1

Along with the notice, petitioner included a

letter asking for a different attorney, asserting that he was

“afraid to trust his coun[s]el after [his] day in court with him”

and was “not even sure if he [would] give a notice of appeal.”

Id. at 2.

On the same day, petitioner’s attorney mailed a notice

of appeal on petitioner’s behalf.

D. Ct. Doc. 1111, at 1-3 (Jan

26, 2017); see id. at 2 (certifying service by mail on Jan. 23).

A few days later, petitioner’s attorney moved to withdraw and

requested

that

the

petitioner on appeal.

court

appoint

counsel

to

represent

See Mot. to Withdraw 1-2 (Jan. 31, 2017).

Petitioner requested the same.

2017).

new

D. Ct. Doc. 1140, at 1 (Feb. 1,

The district court convened a hearing on the motions.

1/31/17 Order 1.

See

7

At that hearing, the district court assured petitioner that

his attorney was “doing everything he c[ould] to properly represent

[petitioner]”; that the attorney had “done a good job”; and that

the attorney would “represent [petitioner] well on [his] appeal.”

2/2/17 Mot. Hr’g Tr. 6-7. The court acknowledged that it “probably

shouldn’t have said” at sentencing that petitioner’s attorney was

not “doing his job.”

Id. at 7-8.

The court explained that “if

[the court had] thought what [petitioner’s attorney] was trying to

get [i.e., the detention-hearing transcript] would have made any

difference in [petitioner’s] sentence, then [the court] would have

given [the attorney] more time to do it, but [the court] was

satisfied that it wouldn’t have made any difference.”

Id. at 5-

6; see id. at 8 (explaining that defense counsel “does a good job

when he’s up here” and that petitioner did not, in fact, need the

detention-hearing transcript).

The court thus denied petitioner’s

and his counsel’s substitution motions.

denied reconsideration.

4.

Id. at 9.

And it later

D. Ct. Doc. 1307 (Mar. 30, 2017).

On appeal, petitioner contended through counsel that

the district court had abused its discretion in denying his request

to substitute his appointed counsel.

Pet. App. 1.

After the close

of briefing, petitioner also filed a pro se motion to have his

appointed counsel relieved and new counsel appointed to re-brief

the appeal.

Pet. C.A. Mot. for Order 1-2 (Nov. 27, 2017).

In

that motion, petitioner expressed concern about his attorney’s

failure to raise challenges to three Guidelines enhancements and

8

claimed

“extreme

ineffectiveness

and

improper

performance

of

counsel.”

Pet. C.A. Decl. 1-2 (Nov. 27, 2017). In a court-ordered

response,

petitioner’s

attorney

explained

that

claims identified by petitioner lacked merit.

Mot. 2-3 (Dec. 14, 2017).

the

sentencing

Resp. to Client’s

Counsel did not discuss petitioner’s

asserted ineffective-assistance claim.

He did state, however,

that he would “happily step aside and assist in transitioning this

case to new counsel should the court believe that new counsel is

in [petitioner’s] best interest.”

Id. at 3.

The court of appeals affirmed in an unpublished opinion. Pet.

App. 1-2.

As relevant here, the court of appeals affirmed the

district court’s denial of the motions to appoint substitute

counsel, finding that petitioner had “failed to demonstrate a

‘complete breakdown in communication’ or ‘irreconcilable conflict’

with counsel.”

Pet. App. 2 (quoting United States v. Young, 482

F.2d 993, 995 (5th Cir. 1973)).

The court of appeals also denied

petitioner’s motion to appoint new counsel and order re-briefing.

Ibid.

ARGUMENT

Petitioner

renews

his

contention

(Pet.

11-14)

that

the

district court abused its discretion in denying his motion for new

appellate

counsel,

asserting

that

the

court’s

statements

sentencing “undermine[d] the attorney-client relationship.”

11 (emphasis omitted).

at

Pet.

The court of appeals correctly rejected

that factbound contention, and its decision does not conflict with

9

any

decision

of

this

Court

or

of

another

court

of

appeals.

Petitioner also contends (Pet. 7-10) that he received ineffective

assistance of counsel on appeal because his appointed counsel, who

represented him at sentencing, faced a conflict of interest in

challenging the district court’s denial of petitioner’s request

for new appellate counsel.

Petitioner did not, however, press

such an argument in the court of appeals -- either through counsel

or on his own -- and this Court should not consider it in the first

instance. Any claim of ineffective assistance of appellate counsel

may be considered in post-conviction review proceedings.

Further

review in this Court is not warranted.

1.

a.

The

Sixth

Amendment

guarantees

a

defendant

the

right to the assistance of counsel at all critical stages of the

criminal proceedings.

See Montejo v. Louisiana, 556 U.S. 778, 786

(2009). If the defendant cannot afford an attorney, he is entitled

to appointed counsel.

345 (1963).

Gideon v. Wainwright, 372 U.S. 335, 342-

An indigent defendant, however, has no right to

counsel of his choosing.

See Caplin & Drysdale, Chartered v.

United States, 491 U.S. 617, 624 (1989) (“[A] defendant may not

insist

on

representation

by

an

attorney

he

cannot

afford.”)

(brackets in original; citation omitted); see also United States

v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).

Nor does he have a

right to a “meaningful relationship” with his counsel, as long as

he receives sufficient representation.

1, 14 (1983).

Morris v. Slappy, 461 U.S.

10

Section 3006A of Title 18 governs the appointment of counsel

for indigent federal defendants.

The statute provides that the

“court may, in the interests of justice, substitute one appointed

counsel for another at any stage of the proceedings.”

3006A(c).

18 U.S.C.

“Because a trial court’s decision on substitution is so

fact-specific,

it

deserves

deference;

a

reviewing

overturn it only for an abuse of discretion.”

565 U.S. 648, 663-664 (2012).

defendant’s

request

to

court

may

Martel v. Clair,

Courts reviewing the denial of a

substitute

appointed

counsel,

or

of

appointed counsel’s request to withdraw, consider “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).”

Id. at 663; see,

e.g., United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)

(considering whether “a conflict of interest, a complete breakdown

in communication or an irreconcilable conflict” had occurred)

(citation omitted).

b.

The

court

of

appeals

correctly

determined

that

the

district court did not abuse its discretion when it declined to

appoint new counsel for petitioner.

Although petitioner’s request

appears to have been timely, the district court exhaustively

inquired

into

petitioner’s

complaints

replacement counsel was not warranted.

and

determined

that

First, when petitioner

11

expressed

dissatisfaction

with

his

appointed

counsel

before

sentencing, the court directed counsel to meet with petitioner,

attempt to resolve the difficulty, and report back.

886, at 1.

D. Ct. Doc.

Counsel reported back that the concerns had been

resolved and petition did not renew any of his complaint at that

time.

See C.A. ROA 275.

Later, when petitioner voiced concern

with his attorney’s performance at sentencing, the court took the

unusual step of convening an ad hoc hearing.

1/31/17 Order 1.

At

the hearing, the court repeatedly inquired about petitioner’s

concerns.

See 2/2/17 Mot. Hr’g Tr. 4-5, 7-9.

concerns,

it

explained

that

it

In response to those

“probably

shouldn’t”

have

criticized defense counsel’s performance and that it did so out of

annoyance with the tardy request for a continuance.

Id. at 8.

The

performed

court

assured

petitioner

that

his

counsel

had

effectively, that the additional evidence petitioner wanted to

present would not have changed the outcome at sentencing, and that

his attorney would continue to “do a good job” on appeal.

8-9.

Id. at

The court’s extensive inquiry into petitioner’s complaints

was more than adequate.

The court of appeals did not err in finding that petitioner’s

distrust of his counsel fell short of a “complete breakdown in

communication” or “irreconcilable conflict.”

Young, 482 F.2d at 995).

Pet. App. 1 (quoting

A “complete breakdown in communication”

requires more than an evident distrust or dislike of counsel.

See

United States v. Romans, 823 F.3d 299, 312-313 (5th Cir.), cert.

12

denied, 137 S. Ct. 195 (2016).

It requires “a total lack of

communication preventing an adequate defense.”

United States v.

Wild, 92 F.3d 304, 307 (5th Cir.) (quoting United States v. Cole,

988 F.2d 681, 683 (7th Cir. 1993)), cert. denied, 519 U.S. 1018

(1996).

At no point has petitioner claimed that his appointed

counsel

totally

petitioner

failed

asserts

to

communicate

the

court’s

that

with

him.

criticism

at

Although

sentencing

created an “irreconcilable conflict” between him and his attorney,

courts of appeals recognize that a defendant’s unilateral lack of

confidence

in

his

attorney

“irreconcilable conflict.”

does

not

suffice

to

establish an

Romans, 823 F.3d at 312 (citation

omitted); see Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir.

1985) (holding that a defendant’s general loss of confidence in

his

counsel,

standing

alone,

is

insufficient

substitution), cert. denied, 475 U.S. 1031 (1986).

to

justify

Particularly

after the district court’s explanation and reassurances at the

substitution-of-counsel

necessarily

be

the

hearing,

result

of

any

lingering

petitioner’s

refusal to accept the court’s explanation.

conflict

own

would

unjustifiable

A defendant, however,

“cannot force the appointment of new counsel by simply refusing to

cooperate

with

his

attorney,

notwithstanding

competence and willingness to assist.”

the

attorney’s

Harding v. Davis, 878 F.2d

1341, 1344 n.2 (11th Cir. 1989); see also Romero v. Furlong, 215

F.3d

1107,

1114

(10th

Cir.)

(“A

breakdown

in

communication

warranting relief under the Sixth Amendment cannot be the result

13

of a defendant’s unjustifiable reaction to the circumstances of

his situation.”), cert. denied, 531 U.S. 982 (2000).

Further

review of petitioner’s substitution-of-counsel claim is therefore

unwarranted.

2.

Petitioner

separately

contends

(Pet.

7-10)

that

he

received ineffective assistance of counsel on appeal because his

appointed attorney faced an “inherent conflict of interest” in

challenging the district court’s denial of petitioner’s request

for a new appointed counsel.

Petitioner forfeited direct review

of that contention, however, by not raising it in the court of

appeals. Any ineffective assistance claim premised on that concern

is

therefore

more

appropriately

considered

in

post-conviction

review proceedings. In any event, even if petitioner had preserved

the contention, it would not warrant relief because the underlying

substitution-of-counsel claim as to which petitioner claims a

conflict of interest itself lacks merit.

a.

Criminal defendants convicted of felonies have a right

to effective assistance of counsel on a direct appeal.

v.

Lucey,

469

U.S.

387

(1985).

This

Court’s

See Evitts

decision

in

Strickland v. Washington, 466 U.S. 668 (1984), generally requires

that to establish ineffective assistance of counsel, a defendant

must prove both (1) deficient performance and (2) prejudice.

at 687.

Id.

To demonstrate deficient performance, a defendant must

show that defense counsel’s conduct fell below an “objective

standard of reasonableness,” with the court applying a “strong

14

presumption” that counsel’s strategy and tactics fell “within the

wide range of reasonable professional assistance.”

689.

To

demonstrate

prejudice,

a

defendant

Id. at 688-

must

show

that

counsel’s deficient performance “prejudiced the defense,” through

proof

of

a

“reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have

been different.”

Id. at 687, 694.

In Cuyler v. Sullivan, 446 U.S. 335, 349-350 (1980), this

Court recognized a limited exception to the Strickland rule.

It

held that where a defendant can show that a conflict of interest

arising

from

counsel’s

active

representation

of

co-defendants

adversely affected counsel’s performance, reversal is required,

even without a showing of a probable effect on the outcome of the

proceeding.

In

the

absence

of

an

active,

simultaneous

representation of co-defendants, however, Culyer does not control,

and Strickland requires a demonstration of deficient performance

and prejudice. See Mickens v. Taylor, 535 U.S. 162, 174-175 (2002)

(explaining that, although the court of appeals had extended Cuyler

to “‘all kinds of alleged attorney ethical conflicts,’” Cuyler

“does not

* * *

support[] such [an] expansive application”)

(citation omitted).

b.

Petitioner has forfeited direct review of his conflict-

of-interest claim by failing to present it to the court of appeals.

Petitioner’s

opening

brief,

which

was

submitted

by

appointed

counsel, contended that the district court erred in failing to

15

recognize

the

interpersonal

conflict

between

petitioner

and

counsel, but did not suggest that counsel faced a conflict of

interest in advancing that claim on appeal.

17.

See Pet. C.A. Br. 9-

And petitioner’s own pro se motion to appoint new counsel and

order re-briefing criticized several aspects of his counsel’s

representation, but did not allege any conflict of interest or

even discuss his counsel’s presentation of the substitution-ofcounsel claim -- the only aspect of counsel’s performance germane

to the conflict of interest alleged here.

Order 1-2; Pet. C.A. Decl. 1-2.

See Pet. C.A. Mot. for

As a result, the question that

petitioner raises in this Court was never pressed in or passed on

by the court below. 2 This Court should follow its “normal practice”

of denying review of issues not raised below.

EEOC v. Federal

Labor Relations Auth., 476 U.S. 19, 24 (1986) (per curiam); see

OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 397 (2015) (a

party’s argument “was never presented to any lower court and is

therefore forfeited”).

That is particularly true given that petitioner seeks to raise

an ineffective assistance of counsel claim.

Reviewing courts

frequently do not entertain claims of ineffective assistance of

Prior to his motion to appoint new counsel, petitioner

also appears to have filed pro se a supplemental brief, raising

various sentencing claims but not taking issue with his attorney’s

presentation of the substitution-of-counsel claim. See Resp. to

Client’s Mot. 1-2 (describing the arguments advanced in the

supplemental brief). The court of appeals declined to accept that

submission because petitioner was represented by counsel at the

time. Id. at 2.

2

16

counsel

on

direct

appeal,

because

the

record

will

often

be

inadequate for the court to decide the issue. Instead, such claims

are more typically raised by way of a motion pursuant to 28 U.S.C.

2255.

See Massaro v. United States, 538 U.S. 500, 507 (2003) (“few

[ineffectiveness] claims will be capable of resolution on direct

appeal”).

The concern with premature adjudication is particularly

forceful where, as here, the defendant alleges that his attorney

was ineffective on the appeal itself.

To the extent petitioner

can show that his attorney’s alleged conflict of interest adversely

affected

his

representation,

he

will

be

able

ineffective assistance claim on collateral review.

(“We

* * *

to

raise

an

See id. at 509

hold that failure to raise an ineffective-assistance-

of-counsel claim on direct appeal does not bar the claim from being

brought

in

a

later,

any

event,

appropriate

proceeding

under

[Section]

2255.”).

In

even

if

petitioner

had

not

forfeited

ineffective assistance claim, the claim would lack merit.

his

As the

court of appeals correctly determined, the district court did not

abuse its discretion in denying petitioner’s and his counsel’s

motions to replace appointed counsel.

9-13,

supra.

Because

petitioner

Pet. App. 2; see also pp.

could

not

have

brought

a

meritorious substitution-of-counsel claim, he cannot satisfy the

prejudice requirement of Strickland.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

FRANCESCO VALENTINI

Attorney

NOVEMBER 2018