Petition for Writ of Certiorari — Michael Danilovich, aka Sealed Defendant 2, aka Mike Daniels, aka Fat Mike, aka Mike D, Petitioner v. United States

Supreme Court briefNov 20, 2018

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QUESTION PRESENTED

The question presented is whether an indigent defendant

has a qualified right to reappointment of counsel.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

PETITION FOR CERTIORARI

PARTIES TO THE PROCEEDING

ORDERS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

I. Factual Background And Proceedings In The

District Court

1.1. Proceedings In The Second Circuit

REASONS FOR GRANTING THE WRIT

This Case Presents A Perfect Vehicle To

Resolve The Circuit Split On The Existence

Of A Qualified Right To Reappointment

The Question Presented Is Important

The Decision Below Was Wrongly Decided

CONCLUSION

Appendix A

Summary Order

United States v. Danilovich, 2018 U.S. App. LEXIS 10901

Appendix B

Denial of Rehearing

Appendix C

12a

Trial Court 's Denial of First Motion for

Mistrial and Substitution of Counsel

ill

TABLE OF AUTHORITIES

Avery .v. Alabama,

308 U.S. 444 (1940)

Brown v. Craven,

424 F.2d 1166 (9th Cit. 1970)

Chandler v. Fretag,

348 U.S. 3 (1954)

Glasser v. United States,

315 U.S. 60 (1942)

McMann v. Richardson,

397 U.S. 759 (1970)

Morris v. Slappy,

461 U.S. 1 (1983)

51 19, 202 21

Renico v. Lett,

599 U.S. 766, 176 L. Ed. 2d 678 (2010)

Riggins v. Nevada,

504 U.S. 127 (1992)

12, 15

Sullivan v. Little Hunting Park,

396 U.S. 229 (1969)

United States v. Allen,

789 F.2d 90 (1st Cit. 1986)

11, 12

United States v. Calabro,\

467 F.2d 973 (2d Cir. 1972)

5, 9, 21

United States v. Carreto,

583 F.3d 152 (2d Cit. 2009)

3, 41 13, 19, 20

United States. Gallop,

838 F.2d 105 (4th Cit. 1988)

12, 19

United States v. Goldberg,

67 F.3d 1092 (3d Cit. 1995)

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006)

United States v. Sitneonov,

252 F.3d 238 (2d Cir. 2001)

4, 13, 19

United States v. Simpson,

645 F.3d 300 (5th Cir. 2011)

4, 13, 19

United States v. Welty,

674 F.2d 185 (3d Cir. 1982)

United States v. Young,

482 F.2d 993 (5th Cir. 1973)

3, 4, 14

PETITION FOR CERTIORARI

iichae1 Danilovich petitions for a writ of certiorari

to review the judgement of the United States Court of Appeals for

the Second Circuit.

PARTIES TO THE PROCEEDING

The parties to this proceeding are listed in the caption.

ORDERS BELOW

The summary order of the Second Circuit (Pet. App. la-10a) is

unreported but available at 2018 U.S. App. LEXIS 10901. The order

denying rehearing en banc (Pet. App. ha) is unreported. Trial

court's order (Pet. App. 12a-23a) denying petitioner's first

motion for mistrial and substitution of counsel is unreported.

JURISDICTION

The judgement of the Second Circuit was entered on April 26th,

2018. A timely petition for rehearing en banc was denied on August

23rd, 2018. This Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment provides in relevant part:

In all criminal prosecutions, the accused

shall enjoy the right

...

to have the

Assistance of Counsel for his defence.

INTRODUCTION

This case presents an important and recurring' question

over the existence of a reciprical remedy to an indigent

defendant's right to court-appointed counsel. The very existence

of the right of an indigent to have counsel appointed to them,

being at its core a fulfillment of the constitution's guarantee to

the assistance of counsel, must surely imply the existence of the

corresponding remedy, that, when such an appointment fails to

satisfy the accused's right to counsel (including the relevant

entitlements deriving therefrom), then the accused is, for such

reason, entitled as a matter of right to the reappointment of

counsel.

The Court's review is warranted to determine the

existence of this qualified right to reappointment. Presently, the

Circuits are split on the matter. The Fifth Circuit, for instance,

has held that although an indigent defendant has no right to be

represented by "a particular lawyer," that he or she can "demand a

different lawyer" where a violation of his or her right to counsel

is shown. United States v. Young, 482 F.2d 993, 995 (5th Cir.

1973). The Second Circuit, on the other hand, maintains that a

'defendant has no such right; instead, decisions on substitution

are seen as always discretionary. United States v. Carreto, 583

F.3d 152, 158 (2d Cir. 2009).

Such a stance by the Second Circuit relegates a

defendant's rights into the same category as preferences. Indeed,

on review in the Second Circuit, when a defendant, as here,

complains that the district court denied substitution in the face

of substantial constitutional violations, the Court of Appeals

will not even review the alleged violations but only "the district

court's denial", and only "for abuse of discretion." Carreto, at

158. Even if such a review were to, by chance, touch upon the

alleged violations, the appellate court would consider them only

as a mere factor to be weighed. United States v. Simeonov, 252

F.3d 238, 241 (2d Cir. 2001). In stark contrast, the Fifth Circuit

first reviews the "Sixth Amendment claims de novo.," and only then,

"if that Amendment has not been violated, the trial court's

refusal to appoint substitute counsel is reviewed for an abuse of

discretion." United States v. Simpson, 645•F.3d 300, 307 (5th Cit.

2011).

Review is also warranted because the question is

important. Since reappointment would only be necessitated by an

impairment of an accused's right to counsel, it is therefore of at

least as much importance as that fundamental right. What's more,

since reappointment is only of relevance to the indigent, the

matter therefore is of immeasurable significance to the most

disadvantaged group that finds themselves in the criminal justice

system. It is worth notice also that the matter is of its most

relevance only when the defendant has been deprived of counsel;

meaning, the defendant may have to personally shoulder the burden

of proving the impairment to the court. Such a burden is more

likely to be undue than not, not only because the defendant will

be operating without legal assistance, but also •because the

existing caselaw on the matter is unclear at best, is

contradictory, and is mainly worded such that it implies that an

indigent defendant has no right to competent counsel. Thus, a

clear answer from this Court would not only correct a manifest and

persistent injustice, but the very clarity itself will be of

enduring value to all of those indigent defendants seeking to

reestablish representation.

Finally, review is warranted because the decision below

is incorrect. In arriving at its decision, the Court of Appeals

relied on its own prior interpretations of the holdings of this

Court in Morris v. Slappy, 461 U.S. 1 (1983). The Slappy Court,

however, did not hold that all substitution decisions are

discretionary; instead, it held, where a court has discretion but

abuses it, the circumstances underwhich that abuse amounts to a

violation of the defendant's rights. Indeed, Slappy specifically

illustrates a scenario that directly contradicts the Second

Circuit's interpretation. What's more, this misinterpretation may

have been the catalyst that deviated the Second Circuit away from

the other Circuits and from its own pre-Slappy precedent, which

had held since at least United States v. Calabro, 467 F.2d 973,

986 (2d Cir. 1972)('the trial court has discretion to decide

whether to grant a continuance during the course of trial for the

substitution of counsel" only "in the absence of a conflict which

presents such a Sixth Amendment problems').

STATEMENT OF THE CASE

I. Factual Background And Proceedings In The District Court

Petitioner Michael. Danilovich was arrested on February

29th., 2012, in connection with an alleged no-fault insurance

fraud. On account of his indigence, Danilovich proceded to trial

in 2013 with CJA counsel, Eric M. Creizman. A number of potential

conflicts of interest arose, but in each circumstance the

defendant waived the conflict. Subsequently, with the trial having

resulted in all but one juror finding Danilovich not guilty, the

court declared a mistrial on November 4th, 2013.

On January 28th, 2014, the government superseded the

indictment, adding, generally, charges for alleged securities

fraud. Over a year later, and just days before trial, the

government revealed a cooperating witness who was conflicted with

Mr. Creizman. After the revelation, counsel for the United States

threatened more counts if Danilovich didn't waive the conflict

(though upon investigation, the government argued that they

weren't threats, just transparency). A number of curcio hearings

were conducted. After much thought, Danilovich declined to waive

the conflict. That same day, February 11th, 2015, the court

terminated Mr. Creizman and severed Danilovich. Notably, from the

time that Mr. Creizman began representation until the day his

representation was terminated, and even though Mr. Creizman was

unable to secure a dismissal or an acquital, Danilovich never once

complained to the court about his counsel's performance.

The same day as the termination, the counsel for the

United States communicated with the CJA Panel about who would be

appointed to the defendant. Subsequently, the CJA panel assigned

Lorraine Gauli-Rufo. Not having been actually admitted to

practice, Ms. Gauli-Rufo filed (two weeks later) for permission to

appear Pro Hac Vice; the motion being granted on February 25th,

2015. Less than a month later, Ms. Gauli-Rufo asked the court for

more money to, among other things, acquire an attorney. A few

weeks later, Thomas Ambrosio, CJA counsel from the state of New

Jersey, and from a different law firm as Ms. Gauli-Rufo, began

making appearances with her for Danilovich.

On July 28th, 2015, the case was reassigned from the

Honorable Judge J. Paul Oetken to Judge Batts. Two days later the

government superseded again, adding two additional counts for

another securities fraud. On September 30th, 2015, jury selection

for Danilovich's second trial began, and trial itself commenced on

October 7th, 2015.

On October 18th, 2015, after the fifth trial day of a

month-long trial, Danilovich submitted an ex parte letter motion

requesting substitution of counsel and a mistrial. Three days

later, on October 21st, he submitted a second letter requesting

the same. In brief, these letters revealed numerous deficiencies

in his counsel's preparedness, due to, among other things,

neglegence and exhaustion. More than just accusations, the letters

cited to examples on the record, and also pointed to at least one

example of severe prejudice resulting from counsel's

unpreparedness. He noted that even the court had been forced to

teach his counsel how to do their jobs, and chastized them for

their neglegence; and he vents at how his counsel had lied to the

court, representing their deficiencies as mere "strategy."

Further, the letters also evinced serious hints of Fifth and Sixth

Amendment deprivations stemming from chronic communication

shortcomings: counsel was clearly unable (or unwilling) to accept

Danilovich's involvement in his defense preparations, and

ultimately they cut off communications with him completely.

In response to the letters, the district court neither

performed an inquiry nor held a hearing. The court reviewed the

first motion for ineffectiveness under the Strickland standard;

but, after finding some of the complaints insubstantial, the court

reviewed no other claims, and denied the requests for mistrial and

substitution. The court never ruled on the second motion.

On November 5th, 2015, the jury returned a guilty

verdict on all counts. The amended judgement on this case was

entered on August 1st, 2016.

II. Proceedings In The Second Circuit

Danilovich timely appealed. As relevant here, he

challenged the district court's denial of, and failure to inquire

into, his requests for mistrial and substitution of counsel on the

discretion. To that extent, the court of appeals only considered

whether the district court's conclusions

denial

as articulated in its

were reasonable.

Dariilovich timelysought rehearing en bane. He pointed

out that the Second Circuit's decision not only failed to address

the actual claims raised, but was also wrongly decided. He showed

that the Second Circuit's decision, to presume the district court

had discretion, conflicts with the facts and case law. The

rehearing was denied on August 23rd, 2018.

REASONS FOR GRANTING THE WRIT

I. This Case Presents A Perfect Vehicle To Resolve The Circuit

Split On The Existence Of A Qualifed Right To Reappointment.

The courts of appeals disagree on whether an indigent

defendant has a qualified right to substitution of appointed

counsel. Had Danilovich been prosecuted in Texas instead of New

York, the court of appeals would have first reviewed his

constitutional claims to determine if he was entitled to

reappointment, before then reviewing the district court's denial

for abuse of discretion.

The Supreme Court has held that "the right to counsel

of choice does not extend to defendants who require counsel to be

appointed for them." United States v. Gonzalez-Lopez, 548 U.S.

140, 151 (2006). There is a significant distinction, however,

between a request for one's first choice of counsel and a request

for any attorney other than the one presently appointed.

Indeed, some Circuits seem to accept that an indigent

defendant does have a qualified right to different counsel

reappointment, if you will. The Fifth Circuit, for instance, has

held that although an indigent defendant "does not have a right to

be represented by a particular lawyer," he or she can "demand a

different appointed lawyer" if there is good cause shown. United

States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). This holding

has been affirmed in the First Circuit, United States v. Allen,

789 F.2d 90 (1986); in the Third Circuit, United States v. Welty,

624 F.2d 185 (1982); and in the Fourth Circuit, United States V.

Gallop, 838 F.2d 105 (1988); at least.

The qualifying factor

that is, the 'good cause'

is routinely described as being a "conflict of interest, a

complete breakdown of communication, or an irreconcilable conflict

with the attorney." United States v. Goldberg, 67 F.3d 1092, 1098

(3d Cir. 1995)(citing Welty, 674 F.2d, at 188). A consideration of

these issues reveals a common denominator: the 'good cause' which

qualifies an indigent defendant's right to demand reappointment is

the present appointment's dissatisfaction of the defendant's right

to counsel. See, e.g., Glasser v. United States, 315 U.S. 60, 75

(1942)(the assistance of counsel guaranteed by the Sixth Amendment

contemplates that such counsel be conflict-free); £U.ggins v.

Nevada, 504 U.S. 127, 144 (1992)(a defendant's Sixth Amendment

right to counsel is violated if the defendant is unable to

communicate with his or her counsel); and Brown v. Craven, 424

F.2d 1166, .1170 (9th Cir. 1970)(a defendant who has an

irreconcilable conflict with his or her counsel is deprived "of

the effective assistance of any counsel whatsoever"). Such

deprivations may also implicate a variety of due process

deprivations as well. See Chandler v. Fretag, 348 U.S. 3, 10

(1954)(the inability to be heard through counsel is a denial "of

due process in the constitutional sense").

The Second Circuit also recognizes such good causes.

That, however, is the end of the similarities. Rather than seeing

a defendant with good cause as being entitled to substitute

counsel, the Second Circuit leaves all decisions regarding motions

for substitution of appointed counsel up to the district court's

discretion, United States v. Carreto, 583 F.3d 152, 158 (2d Cir.

2009); the exercise of which considers the good cause showing only

as a mere factor to weigh, United States v. Simeonov, 252 F.3d

238, 241 (2d Cir. 2001). Since judicial discretion is "a court's

power to act or not act when a litigant is not entitled to demand

the act as a matter of right," Black's Law Dictionary (Third

Pocket Edition, 2006), such a procedural posture by the Second

Circuit

which does not seek to establish the disentitlement or

disqualification of any right before presuming discretion

demonstrates an implicit holding that there is no such right for

an indigent defendant whatsoever.

This Circuit split is further evinced by the

differences in the standards of review used by the respective

courts of appeals when evaluating claims of error by a trial

court's denial of a motion for substitution of appointed counsel.

Just as the Second Circuit leaves the decision to deny the motion

up to the discretion of the trial court, they likewise will only

"review the district court's denial" and only "for abuse of

discretion." Carreto, 583 F.3d, at 158. The Fifth Circuit, on the

other hand, first reviews the "Sixth Amendment claims de novo,"

and then, "if that Amendment has not been violated, the trial

court's refusal to appoint substitute counsel is reviewed for an

abuse of discretion." United States v. Simpson, 645 F.3d 300, 307

(5th Cir. 2011)(citing Young, 482 F.2d, at 995).

Review of this question by the Supreme Court is

warranted therefore to resolve this split amongst the courts of

appeals.

II. The Question Presented Is Important.

Review is also warranted because the question is

important. The Second Circuit's interpretation of the law results

in a standard which not only allows the deprivation of rights, but

which also impedes the defendant's ability to obtain a remedy to

those deprivations on appeal.

History has proven that the values of a nation must be

assiduously and persistently maintained if those values are to

endure. This means that not only must such values be diligently

enforced, but so too must shortcomings in that enforcement be

tenaciously resolved. The Supreme Court has said it has a

"vigilant concern for the maintenance of the constitutional right

of an accused to assistance of counsel." Avery v. Alabama, 308

U . S. 444, 445 (1940). This question presents a perfect vehicle for

the Supreme Court to exercise their concern.

Past examples of the Court's concern can be found in

its elucidations and elaborations on the various entitlements

extending from the right to counsel. For example, we now know that

the right to counsel is only satisfied when counsel is competent

and their assistance effective, ticMann v. Richardson, 397 'U.S.

759, 771 (1970); and that the defendant's entitlement to effective

assistance is impaired when he or she cannot cooperate in an

active manner with counsel., to provide needed information, or

participate in the making of decisions on his or her own behalf,

Riggins v. Nevada, 504 U.S. 127, 144 (1992).

When Congress, in 1964, passed the Criminal Justice

Act, they thereby reinforced the existing view that indigent

defendants are entitled to have counsel appointed to them by the

court. Since then, and perhaps before, it has been held that not

every entitlement deriving from the right to counsel is extended

to the indigent. For instance, it would be impracticable to afford

all indigent defendants their choice of counsel. However, it has

never been held that the circumstance of counsel being appointed

rather than retained extinguishes a defendant's entitlement to

effective assistance from competent counsel. To the contrary, it

is only sensible that satisfaction of the right to appointed

counsel requires that the appointment, at the very minimum, not

impair those entitlements which the right to counsel does extend

to an indigent defendant. In other words, appointed counsel too

must be competent, and their assistence effective.

Congress need not spell it out that the violation of a

right, whichit itself ensured via statute, necessitates remedy.

See Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969)(the

"existence of a statutory right implies the existence of all

necessary and 'appropriate remedies"). What's more, since this

particular remedy would only be necessitated by the impairment of

the defendant's fundamental right, one could say that the

constitution itself demands the existence of, and access to, such

a remedy. Therefore, protection of such a remedy is of great

importance to this Court.

Any practice which, as in the Second Circuit, rejects

the existence of such a remedy, thereby represents a real and

direct danger to indigent defendants' rights. The crucial problem

is that in the absence of a known entitlement, a district court

will assume equity, and hence discretion.

The fact that the Second Circuit's execution of the

discretionary standard in handling substitution requests does

embrace the so-called 'good cause' exceptions is insufficient to

empower the standard to such an extent that it qualifies as a

legitimate or appropriate remedy for determining a request for

substitution premised on one's need for reappointment: First, the

good cause exceptions do not put a limit on the court's discretion

to deny the motion, but are instead considered as a mere factor 'to

be weighed against other disparate interests. Second, a

discretionary standard at the appellate level would result only in

a review for abuse of discretion, which is certainly not a plenary

review, and which would allow ample opportunity for oversight of

critical facts. Third, even if the court of appeals was to believe

reappointment was warranted, such a 'belief would be precluded from

influencing the court's decision by the discretionary standard's

prohibition on a reviewing court substituting its own judgement to

re-weigh the factors.

The Second Circuit's refusal to recognize an indigent

defendant's qualified right to reappointment is also a danger to

defendants, because their counsel are less likely to assist in the

drafting and filing of a substitution motion, even if counsel

thinks there is good cause, if that counsel has good reason to

believe the court will find the concept legally unmeritorious.

Lastly, the question is important because it deals with

protections and entitlements for our nation's poorest citizens.

They are the least likely to be able to obtain outside assistance

when their court-appointed counsel has, as in this case, broken

off communications. Also, most districts have no policy of

assigning curcio counsel when the threat of a conflict arises,

unless that conflict falls into a very narrow category. Thus, the

indigent defendant is left little choice but to think up,

research, marshal, and draft their request all on their own. There

is certainly room for argument that a defendant's lack of

assistance of counsel while seeking to alert the court of a lack

of assistance of counsel is its own fundamental error. Therefore,

it should be taken into consideration that a clear answer by this

Court would not only correct a manifest and persistent injustice,

but the very clarity itself would be of enduring value to all of

those unwillingly pro Se men and women in local detention centers,

who are trying desperately to navigate the often bewildering and

contradictory caselaw on the reappointment problem, in an effort

to reestablish representation.

III. The Decision Below Was Wrongly Decided

Review is also warranted because the Second Circuit's

choice of review standard is premised on a misinterpretation of

controlling law, is constitutionally insufficient to detect and

remedy allegations of constitutional violations, and

inappropriately denies defendants their statutory right to

appellate review of assignments of fundamental error.

In response to Danilovich's letters, the district court

first performed a Strickland review of Danilovich's claims, and

held

without inquiry

that several of Danilovich's complaints

were insubstantial. Then the district court denied Danilovich's

requests for mistrial and substitution. On appeal, Danilovich

pointed out that the denial order from the district court

overlooked multiple complaints about hi

s appointed counsel, and

that some of those were substantial enough to warrant a new trial

and new appointed counsel. He also argued that in light of his

counsel's violation of his rights, the trial court's denial was an

abuse of discretion.

On direct review, the court of appeals declined to

consider the identified complaints which the district court had

overlooked. Indeed, the court did not consider in its review any

of the complaints Danilovich had made in his letters. Instead, the

Second Circuit only considered the district court's denial order.

iII

The court also declined to review the merit of the allegations of

constitutional violations. Instead, the Second Circuit only

reviewed for abuse of discretion. The apparent logic was, in light

of Renico v. Lett, 599 U.S. 766, 176 L. Ed. 2d 678 (2010) and

United States v. Carreto, 583 F.3d 152 (2d Cir. 2009), that all

decisions about mistrials and substitutions are up to the

discretion of the trial court, and therefore the only review

needed is for abuse of discretion. This holding was wrongly

decided for a variety of reasons.

As an initial matter, the Second Circuit's

interpretation of Renico is untenable. The holding of the Supreme

Court in Renico did not turn on whether abuse of discretion was

the only form of review necessary to evaluate a challenge on a

mistrial, but whether a state supreme court's determination that

there was no abuse of discretion was an "unreasonable application

of clearly established federal law" under AEOPA. Renico, 176 L.

Ed. 2d, at 686 (internal elipsis omitted). Further, the abuse of

discretion review referenced in Renico was not of whether

violations of a defendant's rights entitle him to a new trial, but

whether a trial court has the discretion to declare a mistrial

when the jury is hung.

Carreto's position derives

via United States v..

Simeonov, 252 F'.3d 238 (2d Cir. 2001) and United States v. Gallop,

838 F.2d 105 (4th Cir. 1988)-- from Morris v. Slappy, 461 U.S. 1

(1983). The relevant holdings in Slappy were (1) that "broad

discretion must be granted trial courts on matters of

continuances", and (2) that "only an unreasoning and arbitrary

insistence upon expeditousness in the face of a justifiable

request for delay violates the right to the assistance of

counsel." Id., at 11 (internal quotations ommitted). Extending

from that holding, Carreto held that challenges on substitution

decisions would be reviewed for abuse of discretion using the

interest of justice factors (associated with claims under

§3006A(c)). Such a response, however, was overreaching. Slappy

did

not hold that a court has free-reign to deny, and indeed provid

an exception: "when prejudicial error is made that clearly impair

a defendant's constitutional rights, the burden of a new trial

must be borne by the prosecution, the courts, and the witnesses;

'the constitution permits nothing less." Id., at 14 (emphasis

added).

The exception in Slappy does not create a conflict of

law, but instead contemplates a similar yet substantively

different scenario. Indeed, the formulations of the two scenarios

present a mirror image: the first scenario contemplates

discretion, the abuse of which amounts to the deprivation of a

right; while the second scenario contemplates a deprivation of

right, the toleration of which amounts to an abuse of discretion

Using these formulations, it is easy to discern that the Second

Circuit's review posture was precisely backwards from what the

situation demanded: whether there were violations of Dariilovich'

constitutional rights which entitled 'him to a new trial is not

established by whether the court abused its discretion; rather,

substantial. complaints about his appointed counsel. He provid

pages of examples of his counsel's ineffectiveness due to their

exhaustion, lack of preparedness, and refusal to accept necess

ary

information from-the defendant. Particularly egregious is his

expi.ination of how counsel's neglegence directly led them into

allowing the admission of an alleged confession (by the defend

ant)

which was shown at a prior, on-record proceeding to be unreli

able.

It would be nearly impossible to show that not contesting the

"confession" did not contribute to the verdict because the lack

contest over it was the only major change in evidence for those

counts between Trial 1

Danilovich

at which all but one juror acquitted

and Trial 2. Worse still, even in the aftermath of

Danilovich's first motion, his counsel never endeavored to recall

the witness or requested a curative instruction.

Even if there were some doubt as to the substance of

the complaints, the court could have held an inquiry. For

instance, Danilovich's complaint of a breakdown in communicatio

explained neither the cause nor the extent of the breakdown,

only

that his counsel refusedto communicate, that Danilovich was

endeavoring resolutely to reestablish communications, and that

was concerned of being shut out of various defense preparations

(including the assembling of defense witnesses, and the

preparation for the cross of a critical government witness which

was apparently soon approaching). However, there is little reason

to doubt the veracity of Danilovich's claims because (1) he had

never sought substitution of his previous appointed counsel, even

through multiple significant failures; (2) since every time

previously, when Danilovich was given new counsel or a new trial,

he was superseded with more counts, there was therefore no motive

for him to seek substitution and mistrial without serious cause;

and (3) his counsel, although given an opportunity for comment,

never disputed a single claim Danilovich made about them.

Thus, tne decision of the court of appeals, which

sustained the violations of Danilovich's fundamental rights, was

wrongly decided. For this reason, and all of the foregoing

reasons, review of this question is warranted.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Michael Danilovich

Petitioner, pro se

Inmate No. 49489-054

Federal Correctional Institution

P.O. Box 1000

0tisvi11e, NY 10963

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.