Petition for Writ of Certiorari — Goodson v. United States

Supreme Court, U.S.

FILED

10-592 NAR 2? 2010

NOFFIGE-OF THE CLERK

In The

SUPREME COURT OF THE

UNITED STATES

October Term, 2009

MICHAEL D. GOODSON,

Petitioner,

Vv.

THE UNITED STATES,

Respondent,

On Petition For Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

*R. Scott Shearer

TBA No. 00786464

929 Preston, Suite 200

Houston, TX 77002

(713) 254-5629

(713) 224-2889 FAX

*Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

(2)

y

/

Does a district court plainly err by removing a

defendant’s counsel of choice based upon the

mere accusation that counsel had committed

minor ethical lapses and where no hearing

adjudicating such accusations ever took place?

Does a court of appeals abuse its discretion by

failing to allow a defendant to file a pro se brief

when his court appointed attorney refuses to

raise meritorious grounds of error’ the

defendant specifically asks him to present?

11

LIST OF ALL PARTIES

Pursuant to Sur. Cr. R. 14.1(b), the

undersigned counsel of record certifies that the

following listed persons have an interest in_ the

outcome of this case:

R. Seott Shearer - Counsel for Petitioner

929 Preston, Ste. 200

Houston, TX 77002

Michael D. Goodson - Petitioner

FCI Beaumont Low

5560 Knauth Road

Beaumont, TX 77705

Melissa J. Annis - Counsel for the

Government

United States Attorney's Office

910 Travis, Suite 1500

Houston, TX 77002

Hon. Lynn N. Hughes - District judge

U.S. District Court for the Southern

District of Texas - Houston Division

515 Rusk

Houston, TX 77002

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF ALL PARTIES.

TABLE OF CITED AUTHORITIES

CITATIONS TO OPINIONS BELOW.....

JURISDICTION......

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE .................

STATEMENT OF THE CASE.......

SUMMARY OF THE ARGUMENT................

PTE UII IN 8 vicesssnnsvascxees

Application of law to the facts..........

Reasons for granting the writ..........

CONCLUSION............

V1-1X

APPENDIX

(Separate volume)

(1) 5th Circuit opinion in Cause No, 08-20760.

(2) Docket sheet in Cause No. 4:06CROO098

(3) Transcript of hearing held April 25, 2006

(4) Recommendation on renewal to practice

and Attorney Fisch’s request for a hearing.

Letter from Chief Judge Hayden Head and

Attorney Fisch’s request for a hearing.

e |

Petitioner's motion to proceed pro se

and to re-brief.

(7) Reply to court-appointed counsel's letter

with attached affidavit of Attorney Fisch.

(8) Order denying Petitioner’s motion to proceed

pro se.

TABLE OF CITED AUTHORITIES

Page

CASES

Entsminger v. Iowa, 386 U.S. 748 (1967) ........ aesse ae

Evitts v. Lucy, 469 U.S. 387 (1985).............:-eeeeeeeeee 20

Faretta v. Califernia, 422 U.S. 806 (1975) ......... 10, 20

Gathe v. Housing Authority of Lafayette, 2006 U.S.

Dist. Lexis 91114 (U.S. Dist. Ct. Western Dist.

EE SUED 2 ss caccosaneuseuveancnsuncsenss eats 17

Harling v. United States, 387 A.2d 1101 (D.C. Cir.

Ry ec aavenn cas supesaaaneeatin Pe eee ao 1]

Tilinois v. Alien. SOT US. BST (IST) ccccisveccsscesvccseces: 21

In re Evans, 524 F.2d 1004 (5th Cir.1975) ...................

In re Goodson, No. 07-20497 (5'» Cir. 2007)(original

DFOCCCEING)........cccesssesccorssveccrnesereccecscscesenessocseroessconens 7

Jones v. Barnes, 463 U.S. 745 (1983).............ceceeeeee: 20

Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989)....... 2.0

v1

Norton v. Tallahassee Memorial Hospital, 689 F.2d

938 (Lith Cir. 1982Z).......cce.0000 ANAS SRN 18

Penson v. Ohio, 488 U.S. 75 (1988)............:0.eeeee 11

Powell v. Alabama, 287 U.S. 45 (1932)...... re

Price v. Johnston, 334 U.S. 266, 184 (1948).............. 8

Satterwhite v. Texas, 486 U.S. 249 (1988)................ 11

Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553

oe us asnsbeenaabiaseuenane aces a

Silber v. United States, 370 U.S.717 (1962) ...............8

Smith v. Superior Court of Los Angeles County, P.2d

65: 68 Cal. Rptr. 1 (Cal. 1968)..............::.eeeeeeeeee eee 12

Thornton v. General Motors Corp., 136 F.3d 450 (5th

Cir. 1998) .......... ah eh tal os cau aa osu baaeasbebuenswenteeneaeeasenaee 16

United States v. Collins, 920 F.2d 619 (10th Cir.

1990), cert. denied, 111 S.Ct. 2022 (1991)....... 10, 11

United States v. Davis, 285 F.3d 378, 384 (5 Cir.

2002) cert. denied, White v. United States, 537 U.S.

LOGS ([OOD) .......cccscscsercersccccsccccecscccscscesccesccessecsosesens 22

United States v. Diozzi, 807 F.2d 10 (18t Cir. 1986). 18

Vu

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

5 8.9. 10, 16, 22

lJnited States v. Hobson, 672 F.2d 825 (11th Cir.),

cert. denied. 459 U.S. 906 (1982) . LO

United States v. Kitchin, 592 F.2d 900 (5 Cir. 1979)

12

Lited States v. Laura, 607 F.2d 52 (3d Cir. 1979) . 10

United States v. Lewis, 759 F.2d 1316 (8th Cir. 1985)

|

United States v. Mendoza-Salgado, 964 F.2d 993

PO Ce Fo vs cocessncererinsveaisssterrmirnecenen AO

United States v. Nolen, 472 F.3d 362 (5th Cir. 2006)

United States v. Proctor, 166 F.3d 396 (1st Cir. 1999)

10

Wheat v. United States, 486 U.S. 153 (1988)....

Woods v. Covington County Bank, 537 F.2d 804 (5th

Cir. 1976)

STATUTES

18 U.S.C. §3231

28 U.S.C. §1254

RULES

SuP. CT. R. 13.1.

Sup. Cr. R. 14.1(b)

CONSTITUTIONAL PROVISIONS

LINITED STATES CONSTITUTION, Amendment V

UNITED STATES CONSTITUTION, Amendment VI...

CITATION TO OPINIONS BELOW

The opinion of the Fifth Circuit Court of

Appeals is not reported. It is included in the

appendix to this writ

STATEMENT OF JURISDICTION

The judgment of the court of appeals was

entered on December 22, 2009. This Court has

jurisdiction pursuant to 28 U.S.C. §1254

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The Fifth Amendment to the United States

Constitution reads in pertinent part:

“IMmo] person shall be . . . deprived of life,

liberty, or property, without due process

oflaw....”

UNITED STATES CONSTITUTION, Amendment V.

The Sixth Amendment to the United States

Constitution reads in pertinent part:

“In all criminal prosecutions, the

accused shall enjoy the right to .. . have

the assistance of counsel for his

defense.”

UNITED STATES CONSTITITION, Amendment VI

STATEMENT OF THE CASE

On March 31, 2006 Petitioner Michael D

Goodson was arrested and charged with the offense ol

conspiracy to defraud the United States. (Exhibit 2

at entry no. 10). The United States District Court for

the Southern District of Texas had _ original

jurisdiction in this case pursuant to 18 U.S.C. §3231

On the same day, Petitioner Goodson made his first

court appearance before the magistrate judge

(Exhibit 2 at entry no. 11). Petitioner Goodson

appeared without counsel. The federal public

defender initially represented Petitioner. (Exhibit 2

at entry no. 15). Soon thereafter, on April 6, 2007,

Petitioner appeared in court with retained counsel

Abraham M. Fisch. (Exhibit 2 at entry no. 18). On

April 19, 2006 the Honorable Lynn N. Hughes

entered an order removing Attorney Fisch as counsel

for Petitioner. (Exhibit 2 at entry 24). Attorney

Fisch had yet to appear before the Respondent on

Petitioner's case. (Exhibit 2 at entry nos. 10-24). The

Respondent terminated Attorney Fisch’s

representation, “for the reasons stated on the record

in Criminal Case H-01-443.” (Exhibit 2 at entry 24).'

|! Attorney Abraham Fisch represented a_ clhent

named Benjamin W. Bergh in an unrelated criminal

action before Judge Hughes in = 2002. Upon

conclusion of the case, Judge Hughes sua sponte

3)

a

The district court issued its order sua sponte, as the

Government made no motion to disqualify Attorney

Fisch. (Exhibit 3 at p. 47). Attorney Fisch filed a

Motion to Quash and Dismiss the district courts

order dated April 19, 2006. (Exhibit 2 at entry 34)

The district court convened a hearing on April 25,

2006. (Exhibit 3). Petitioner Goodson was present

(Exhibit 3 at p. 29). In an acrimonious and hostile

colloquy, the district court continually upbraided

Attorney Fisch in the presence of Petitioner Goodson

Judge Hughes took umbrage at the fact that

Petitioner had sworn he was indigent in a financial

affidavit for appointment of counsel, and then

retained Attorney Fisch a few days later. (Exhibit 3

at p. 3-4). Based upon his experience with Attorney

Fisch some four years earlier, Judge Hughes also

alleged that Attorney Fisch does not like to: (1) show

up on time; (2) confer with his clients in advance; and

(3) pick up pre-sentence reports from the probation

ordered Attorney Fisch to return all the attorneys

fees paid to him by the defendant Benjamin W

Bergh. (ORDER of June 12, 2002) Mr. Bergh had

not requested the return of his attorney's fees and the

Government had filed no motion for sanctions prior to

Judge Hughes’ order. Subsequently, Judge Hughes

modified its order to reflect the actual amount of the

fees paid. (ORDER of June 18, 2002). After Attorney

Fisch filed his response to Judge Hughes’ orders,

Judge Hughes held a sanctions hearing on December

13, 2002. At the sanctions hearing, Judge Hughes

rescinded his orders to refund the entire fees and,

instead, ordered Attorney Fisch to pay one-thousand

dollars [$1000.00] to the Texas State Bar

Unauthorized Practice of Law Committee’ as

sanctions.

depariment. (Exhibit 3 at p. 4, 12). Judge Hughes

claimed that having Attorney Fisch on the case was

“an automatic habeas corpus.” (exhibit 3 at p. 27)

Judge Hughes also claimed that Attorney Fisch wa

“unqualified” to be in the Judge Hughes's court

(Exhibit 3 at p. 24) and accused Attorney Fisch ol

being a bad lawyer. (Exhibit 3 at p. 47). At one point

Judge Hughes referred to Attorney Fisch as a

Pettifogger’.2 (ixhibit 3 at p. 49) Undersigned

counsel pointed out that Attorney Fisch has never

been found to have rendered ineffective assistance of

counsel. (Exhibit 3 at p. 33). Soon thereafter, Judge

Hughes insulted Attorney Fisch’s deceased mothe:

and compared Attorney Fisch’s logic to that of

Charles Manson (kxhibit 3 at p. 49) When

Attorney Fisch objected to being compared to Charles

Manson, Respondent threatened to put) Attorney

isch in jal (Exhibit 3 at p. 45) Undersigned

counsel objected on Sixth Amendment grounds to the

district court’s removal of Attorney Fisch as counse!

for Petitioner. Undersigned counsel! pointed out that

Attorney Fisch was in possession of a letter of good

standing from the Southern District. (exhibit 3 at p

18). Judge Hughes claimed the certificate of good

standing was procured through “fraud’.* (lxhibit 3

- A “pettifogger” is a lawyer whose methods are petty

underhanded, or disreputable The word 3}

synonymous with “shyster

‘Only by resorting to truly tortured logic could on

say that Attorney Fisch had committed an ethical act

worthy of disbarment on this ground Assuming

arguendo that Attorney Fisch did not disclose having

received two public reprimands (by definition publi

records) when he reapplied in 1996 to the local

admissions committee, Judge Hughes seems to

|

at p. 48). At the conclusion of the hearing, Judge

Hughes indicated his intent to send a letter around to

the other judges notifying them that Attorney Fisch

was no longer in good standing. (Exhibit 3 at p. 52).

Subsequently, the magistrate court then

attempted to appoint an attorney as Petitioner's

counsel. Petitioner Goodson refused the appointment

and renewed his request to appear with Attorney

Fisch. (Exhibit 2 at entry 65). Petitioner Goodson

stated in his letter that, after careful consideration,

he felt Attorney Fisch, “will do a good job.”

On June 26, 2006 this Court decided the case

of United States v. Gonzalez-Lopez, 548 U.S. 140

(2006), confirming the Sixth Amendment right to

counsel of one’s choosing. Undersigned counsel had

cited the district court to the Gonzalez-Lopez lower

court decision in his Motion to Quash and Dismiss.

Four days later, on June 30, 2006, Judge Hughes

reversed himself and issued an “Order on

Reconsideration” allowing attorney Abraham M.

Fisch to represent Petitioner Goodson. (Exhibit 2 at

docket entry 66). Some eight months passed with

Attorney Fisch’ representing Petitioner until

February 28, 2007, at which time a_ pre-trial

conference was held in anticipation of a jury trial

scheduled for March 6, 2007. At this pre-trial

conference, Judge Hughes again ordered Attorney

Fisch removed from the Petitioner’s case. (Exhibit 2

at entry £79). Judge Hugues claimed Attorney

senses hak penne Fisch is ames of disbarment

ten years later in 2006, though a public reprimand

itself is a lesser sanction than disbarment, and 1s

probably insufficient to prevent one from being

admitted to the bar of the Southern District even

when disclosed.

Fisch’s application for renewal had been “denied” by

the admissions committee and produced a document

stating as such. In fact, the admissions committee

had only made a recommendation that it be denied.

(Exhibit 4). Attorney Fisch then appealed to the

Chief Judge of the Southern District. (Exhibit 5).

The Chief Judge has taken no action and no hearing

has been set or afforded Attorney Fisch. Attorney

Fisch has never been afforded a hearing on the

merits before any district judge, laison judge, or the

chief judge.

At a subsequent hearing, the district court

explained its reasons for removing Attorney Fisch as

follows:

Mr. Fisch is not a member of the Court.

He has not appled for admission pro

hac vice. He probably would not be

cligible, being a resident practitioner.

His admission would be conditioned on

his application for admission, which has

just been denied. So, its its a

complicated problem.

Mr. Fickman, I don’t know whether you

know but I didn’t think he should have

been allowed to represent him, in the

first place. And we went through that.

And I just finally gave up until he got

disbarred because, at the levels of

performance I have seen, regularly, that

essentially it would be building in an

ineffective assistance of counsel claim no

matter what happened. And there's

6

more to the administration of justice

than playing games like that, but |

relented — and not because of the

Supreme Court case, just because 1

became a mini trial in its own right and

| decided it was less trouble to go ahead

and do it with Fisch. But other things

have caught up with him. So, he may

not do it. He properly may not do it. So,

you're it.

Petitioner Goodson then filed a mandamus in

the Fifth Circuit, which was denied. See In re

Goodson, No. 07-20497 (5 Cir. 2007)(original

proceeding). Petitioner Goodson refused all attempts

to appoint him counsel in the district court and

proceeded to trial pro se. Petitioner Goodson was

convicted on all eight counts (four were severed out)

and received a sentence of two-hundred-forty [240]

months inearceration. (Exhibit 2 at entry 285).

Goodson appealed and was assigned court-appointed

counsel. Petitioner Goodson notified his court-

appointed counsel of his desire to present his

Gonzalez-Lopez claims on appeal.* (Exhibit 6). When

his court-appointed counsel refused to do so,

Petitioner filed a motion in the Fith Circuit to

dismiss his court-appointed counsel and to proceed

pro se. (Exhibit 6). The Fifth Circuit overruled the

motion. (Exhibit 8). Petitioner filed a pro se brief

4 Petitioner’s court-appointed counsel was also

notified of the Gonzalez-Lopez issues by Attorney

Fisch and notified of the existence of the mandamus

raising those claims by the undersigned counsel.

7

anyway raising the Gonzalez-Lopez claims. The Fifth

Circuit Court of Appeals affirmed Petitioner’s appeal

on December 22, 2009 without considering

Petitioner’s pro se brief. (Exhibit 1). This Petition for

Writ of Certiorari is timely filed within 90 days of the

entry of the judgment. See SuP. CT. R. 13.1.

SUMMARY OF THE ARGUMENT

The district court plainly erred5 by removing

Petitioner’s counsel of choice based upon whimsical

accusations of attorney misconduct. Petitioner's

counsel was never afforded a hearing on_ the

accusations and Petitioner's counsel was allowed to

practice in other courts in the same _ district

subsequent to his removal from Petitioner's case.

The district court’s removal of Attorney Fisch denied

Petitioner his Sixth Amendment right to counsel of

choice under United States v. Gonzalez-Lopez, 548

U.S. 140 (2006).

The Fifth Circuit Court of Appeals abused its

discretion® by overruling Petitioner's motion to

proceed pro se. Petitioner specifically directed his

cr

5 This Court may review plain error even though not

presented to the court of appeals. Silber v. United

States, 370 U.S.717 (1962). Petitioner would not

need to invoke this Court’s authority to review plain

error had he been allowed to proceed pro se on

appeal.

6 Whether to allow a pro se defendant to participate

in the appellate process is reviewed for an abuse of

discretion. Cf. Price v. Johnston, 334 U.S. 266, 184

(1948).

8

court-appointed counsel to raise his Gonzalez-Lopez

claims. When his court-appointed attorney failed to

do so, Petitioner moved to dismiss court-appointed

counsel and proceed pro se. Petitioner made the

court of appeals aware of his Gonzalez-Lopez issues

and sought pro se status at the earliest practical

opportunity. Nevertheless, the Fifth Circuit

overruled his motion. This denied Petitioner due

process of law. Petitioner did not have an adequate

opportunity to present his claims in the context of the

appellate process.

ARGUMENT

(1) Application of law to the facts.

A. Petitioner had a right to counsel of his

choosing.

One of the rights we enjoy as citizens in a

democratic society is the privilege of seeking the

advice of counsel. In Powell v. Alabama, 287 U.S. 45,

53 S.Ct. 55 (1932), this Court held the right to be

heard carries with it the constitutional baggage of

being heard by counsel. The right to counse] secured

under the Sixth Amendment includes the right to

counsel of choice as one element of this _ basic

guarantee. United States v. Gonzalez-Lopez, 548 U.S.

140, 152 (2006); See Wheat v. United States, 486 U.S.

153, 159 (1988); Powell v. Alabama, 287 U.S. 45

(1932). The Sixth Amendment right to counsel of

choice commands, not that a trial be fair, but that a

9

particular guarantee of fairness be provided - to wilt,

that the accused be defended by the counsel he

believes to be best. United States v. Gonzales-Lopez,

399 F.3d 924, 929 (8th Cir. 2005), aff'd, 548 U.S. 140

(2006); see Faretta v. California, 422 U.S. 806, 819

(1975)(“The Sixth Amendment .. . grants to the

accused personally the right to make his defense .. . .

for it is he who suffers the consequences if the

defense fails.”). The constitutionally-guaranteed

right to counsel has been described as, “a right of the

highest order.” United States v. Proctor, 166 F.3d

396, 402 (1st Cir. 1999); see United States v. Hobson,

672 F.2d 825, 828 (11th Cir.), cert. denied, 459 U.S.

906, 103 S. Ct. 208 (1982)(“The interest in permitting

a criminal defendant to retain counsel of his choice is

strong, and deserves great respect.”).

In United States v. Mendoza-Salgado, the

Tenth Circuit found that, “Lawyers are not fungible,

and often the most important decision a defendant

makes in shaping his defense is his selection of an

attorney.” United States v. Mendoza-Salgado, 964

F.2d 993, 1015 (10th Cir. 1992); accord United States

uv. Laura, 607 F.2d 52, 56 (3d Cir. 1979). Where a

defendant is able to privately retain counsel, “the

choice of counsel rests in his hands, not in the hands

of the state.” United States v. Collins, 920 F.2d 619,

625 (10th Cir. 1990), cert. denied, 111 S.Ct. 2022

(1991).

Like the denial of the right to self-

representation and the denial of the right to counsel,

the denial of the right to be represented by one’s

selected attorney “infects the entire trial process”

from “beginning to end.” United States v. Gonzales-

Lopez, 399 F.3d 924, 929 (8th Cir. 2005), aff'd, 548

U.S. 140 (2006). The erroneous deprivation of the

right to counsel of choice qualifies as structural error,

10

is not subject to harmless-error analysis, and entitles

a defendant to automatic reversal on appeal. United

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

is presumed because it “casts such doubt on the

fairness of the trial process, that it can never be

considered harmless error.” Penson v. Ohio, 488 U.S.

75, 88 (1988)(citing Satterwhite v. Texas, 486 U.S.

249, 256 (1988).

A district court does not have inherent

power to remove a defendant’s chosen

counsel.

A presumption exists that a defendant 1s

entitled to counsel of his choice. Wheat v. United

States, 486 U.S. 153, 164 (1988). As a general rule,

“defendants are free to employ counsel of their own

choice and the courts are afforded little leeway in

interfering with that choice.” United States v. Lewis,

759 F.2d 1316, 1326 (8th Cir. 1985). Courts may

deprive defendants of their preferred counsel, “only

where such drastic action is necessary to further

some overriding social or ethical interest.” United

States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990),

cert. denied, 111 S.Ct. 2022 (1991).

Absent certain exceptions that are inapplicable

to this case, a trial judge does not have the inherent

power to remove defense counsel. Harling v. United

States, 387 A.2d 1101, 1104-1105 (D.C. Cir. 1978).

The logic behind such an absence of authority is well

reasoned. Such inherent power would lead to an

arbitrary misuse of authority and compromise the

adversary process. Quoting from an opinion by the

California Supreme Court:

1]

If the advocate must labor under threat

that, at any moment, if his argument or

advocacy should incur the displeasure or

lack of immediate comprehension by the

trial judge, he may be summarily

relieved as counsel on a_ subjective

charge of incompetency by the very trial

judge he is attempting to convince, his

advocacy must of necessity be most

guarded and lose much of its force and

effect.

Smith v. Superior Court of Los Angeles County, P.2d

65, 74; 68 Cal. Rptr. 1, 10 (Cal. 1968).

A district court does not have the inherent

power to remove trial counsel simply because in his

subjective opinion counsel is incompetent. According

to United States v. Kitchin:

[A]ets which appear to violate the

ABA Code or other accepted

standards of legal ethics do not

confer upon the trial court

unfettered discretion to disqualify

the attorney selected by a party. An

attorney may be disqualified only when

there is ‘a reasonable possibility that

some specifically identifiable

impropriety’ actually occurred and, in

light of the interests underlying the

standards of ethics, the social need for

ethical practice outweighs the party's

right to counsel of his choice.

United States v. Kitchin, 592 F.2d 900 (5 Cir. 1979)

citing Woods v. Covington County Bank, 537 F.2d

804, 810 (5th Cir. 1976)(emphasis added).

The Fifth Circuit has adopted the Eleventh

Circuit’s analysis in Schlumberger Techs., Inc. v.

Wiley, 113 F.3d 1553 (11th Cir. 1997) when

considering the revocation of an attorney admitted

pro hac vice. United States v. Nolen, 472 F.3d 362

(5th Cir. 2006). Although the Nolen and

Schlumberger Techs. cases involved pro hac vice

questions, the analysis should be instructive in the

present case. In Schlumberger Techs., the Eleventh

Circuit noted that cases involving revocation of pro

hac vice status generally fall into one of two

categories: (1) those involving attorney conduct that

challenges the court's authority or threatens

disruption of court proceedings, and (2) those

involving allegedly unethical attorney conduct that

does not threaten the orderly administration of

justice. Schlumberger Techs., Inc. v. Wiley, 113 F.3d

1553, 1559 (11% Cir. 1997). According to

Schlumberger Techs., in the second class of

revocation cases, “the court may not simply rely

on a general inherent power to admit and

suspend attorneys,” but “must clearly identify a

specific Rule of Professional Conduct which

[sic] is applicable to the relevant jurisdiction

and must conclude that the attorney violated

that rule.” Schlumberger Techs., Inc. v. Wiley, 113

F.3d 1553, 1561 (11th Cir. 1997)(emphasis added).

In In re Evans, 524 F.2d 1004 (5th Cir.

1975), the Fifth Circuit set forth both the procedural

and substantive requirements that must be

undertaken before denying an attorney the ability to

13

practice in the district court. Although Jn re Evans

also arose in the context of a motion to appear pro

hac vice, the procedural protections afforded local

counsel should be at least as great, if not greater,

than those granted to a lawyer from another state.

According to In re Evans, if the district court has

evidence of behavior that it believes justifies a denial

of admission pro hac vice, the court must provide the

attorney with adequate notice of all alleged

misbehavior or unethical behavior that will be

charged against him and the court must set a hearing

on the issue. Specific allegations must be made;

general accusations about an attorney's demeanor

are insufficient. The hearing must be on the record

and present the attorney with adequate opportunity

to defend himself and his professional reputation. In

re Evans, 524 F.2d 1004, 1008 (5th Cir. 1975).

According to In re Evans:

Admission to a state bar creates a

presumption of good moral

character that cannot be overcome

merely by the whims of the District

Court. A member in good standing of a

state bar may not be denied the

privilege to appear except on a showing

that in any legal matter, whether before

the particular district court or in

another jurisdiction, he has been guilty

of unethical conduct of such a nature as

to justify disbarment of a _ lawyer

admitted generally to the bar of the

court.

In re Evans, 524 F.2d 1004, 1007-8 (5th Cir. 1975);

see also United States v. Nolen, 472 F.3d 362 (5th

Cir. 2006); Schlumberger Techs., Inc. v. Wiley, 113

F.3d 1553, 1159 (11th Cir. 1997)(emphasis added).

In re Evans, Nolen, and Schlumberger Techs.

make clear that the alleged improprieties leveled

against the lawyer must be of such a degree that they

would justify disbarment of the lawyer admitted

generally to the bar of the court. Petitioner submits

that the past behavior of his attorney falls fall short

of this standard. Attorney Fisch’s alleged acts of

misconduct indisputably belong in the second

Schlumberger Techs. category. Attorney Fisch did

not challenge the court’s authority or threaten

disruption of court proceedings. Attorney Fisch, as of

the writing of this writ of certiorari, is a member of

the State Bar of Texas, is licensed, and is in good

standing. Currently, there are no other disciplinary

proceedings pending against him.

The district court's complaints appear to

involve what might fairly be described as general

“unlawyerlike conduct’; a standard that has been

held by the Fifth Circuit to be too broad and,

therefore, susceptible to abuse. Jn re Evans, 524 F.2d

1004, 1008, n. 1 (5th Cir. 1975). Before being

removed as Petitioner’s chosen counsel the first time,

attorney Fisch was not cited for contempt,

reprimanded, fined, or otherwise disciplined for any

action he took in representing Petitioner Goodson.

All of the alleged misdeeds of Attorney Fisch dredged

up by the district court concerned acts occurring in

attorney Fisch’s previous cases from years earlier.

The worst misdeed occurring in the presence of the

district court in 2002 was Attorney Fisch’s failure to

pick up a pre-sentence report and failure to appear in

court during a time when Attorney Fisch claimed he

was ill. At no time did the district court allege any

ethical violation that would likely result in Attorney

Fisch’s disbarment by the State Bar of Texas. If the

district court truly believed that Attorney Fisch had

committed some error worthy of disbarment, the

district court should have initiated a complaint with

the Chief Judge of the Southern District or with the

State Bar of Texas years earlier. See Thornton ¢

General Motors Corp., 136 F.3d 450, 454 (5th Cu

1998)(‘where sanctions are imposed under Rule

11(c)(1)(B) by a district court on its own initiative

neither the award of attorney’s fees nor the

suspension from practice before the court

constitute a valid sanction .... when a district

court finds that a disciplinary sanction more severe

than admonition, reprimand, or censure under Rule

11 is warranted, it should refer the matter to the

appropriate disciplinary authorities.”) (emphasis

added).

Likewise, Attorney Fisch was not cited fo

contempt, reprimanded, fined, sanctioned, or

otherwise disciplined before being removed as

Petitioner's counsel the second time The only

noteworthy occurrence was a mere recommendation

made by a secret committee’ that Attorney Fisch’

application for re-admission should not be renewed

(Exhibit 3).

The district court wholly failed to consider thi

Petitioner's Sixth Amendment rights before twice

' Despite asking for the members’ names, Attorney

Fisch has been told that the members of the

admission committee serve in secret

16

removing his counsel of choice.® See { nited States t

Nolen. 472 F.3d 362 (5th Cir. 2006). The district

judge was not in a position to make qualitative

decisions regarding Attorney [isch as a lawye?

where the allegations did not arise to the level of

disbarment. See Jn re Evans, 524 F.2d 1004, 1007-8

(5th Cir. 1975) Regardless of the merits of the

complaints leveled at Attorney Fisch by the district

court. the district court should have allowed him to

remain as Petitioner’s chosen counsel until a hearing

was conducted and a final ruling issued. Until and

unless there is a final order of disbarment, Attorney

Fisch remains eligible to practice in the district court

According to the local rules of the Southern District

of Texas, Attorney Fisch was entitled to certain du

process procedures before being denied the ability to

practice Rules 4(B), 5(A)-(G) Rules of Disciphin

United States District Court Southern Dist. Of Texas

(2000). (Exhibit 7). Cf. Gathe v. Housing Authority of

Lafayette, 2006 U.S. Dist. Lexis 91114 (U.S. Dist. Ct

Western Dist. Louisiana 2006)

In Gathe, an attorney from Illinois filed a

motion to appear pro hac vice along with a notice that

she was subject to a current disciplinary proceeding

in her home state. The district court, citing the Fifth

Circuit's opnion in Jn re Evans, found that, inasmuch

as the disciplinary proceedings in Illinois wer

ongoing, the court was, “not in the position to

determine” whether the attorney's conduct “rises to

the level of disbarment”. Gathe, supra. The district

The district court boldly stated its disagreement

with United States v. Gonzalez Lopez, 548 U.S. 140

(2006), arguing that the dissent, rather than th

majority, was the correct opinion

court then continued the case until the [hnot

proceedings were con luded. Gathe, supra

The district court also failed to con sider lesser

anctions other than removal of Attorney Fisch a

Petitioner's counsel. In order to assuage the district

court's concerns and in order to assure Attorney

Misch’ future comphlanc with local rule

undersigned counsel suggested that district court

take some other. less drastic, action than removing

Petitioner's counsel of choice. The district court could

have imposed lesser sanctions such as a bond, an

order, or a threatened contempt in order to secure

Attorney Fisch’s future compliance with local rule

The district court refused to do so. In this respect

the court ran afoul of previous case law from the

Fifth Circuit. Where there is a reasonable possibility

that some tmpropriety might occur in the future

other, less harsh, sanctions are more appropriat

than disqualification of a defendant's chosen counse!

Seo United States v. Snyder 707 Yd 139. n. 4. ©!

(ir. 1983) eiting Norton « Tallahassee Memorta

Hospital GRO F.2d O88, 441, n 1 (llth Cir. ls2

Disqualification of an attorney should only be a#

measure of last resort linited States v. Drozzt, BOF

2d 10, 12 (1 Car. 1986)

‘The district court orde} disqualityin

Petitioner's counsel is particularly crronmeous given

the fact that it was possible to try the Petitioner

case with = hi chosen counsel well before any

disciplinary hearing was even convened, Petatione!

was set for trial with Attorney Fisch on March 6

2007. (Exhibit 1 at docket entry no, Lov) As of the

writing of this writ of certiorari, Attorney Misch ha

yet to be afforded a hearing on the district court

allegation At a minimum, the district court should

nave vrunted Petitioner hi requ ted continuance a

the district court did in Gathe until such time as the

allegations of misconduct were heard and resolved.

Moreover, Petitioner's counsel was allowed to

practice in other courts in the same district

subsequent to his removal from Petitioner's case.

(Exhibit 7 - attached affidavit of Attorney Fisch).

Thus, the district court exceeded its

jurisdiction and plainly erred by arbitrarily removing

Petitioner Goodson’s attorney of choice.

(C) The Court of Appeals erred by not

allowing Petitioner to raise his

Gonzalez-Lopez claims where his court-

appointed attorney refused to do so.

The Fifth Circuit Court of Appeals abused its

discretion by overruling Petitioner's motion to

proceed pro se. Petitioner specifically directed his

court-appointed counsel to raise his Gonzalez-Lopez

claims. (Exhibit 6). When his court-appointed

attorney failed to do so, Petitioner moved to dismiss

court-appointed counsel and proceed pro se. (Exhibit

6). Petitioner made the court of appeals aware of his

Gonzalez-Lopez issues and sought pro se status at the

earliest practical opportunity. (Exhibit 6). Petitioner

filed his motion to proceed pro se months before the

case was submitted. This was a sufficiently clear,

unequivocal, and tiraely request to have his claims

heard. See Faretta v. California, 422 U.S. 806, 807

(1975)(The Court in Faretta noted that the defendant

requested to represent himself “[w]ell before the date

19

of trial” and “weeks before trial.” making a clear and

unequivocal statement to represent himsclf.).

The Fifth Circuit overruled Petitioner's motion

on October 28, 2009. (Exhibit 8). Petitioner then

filed a pro se brief anyway, which raised his

Gonzalez-Lopez claims in addition to those points

raised by his court-appointed attorney. The Fifth

Circuit Court of Appeals affirmed Petitioner’s appeal

on December 22, 2009 without considering

Petitioner’s pro se brief.

The procedures used in deciding appeals must

comport with the demands of the Due Process and

Equal Protection Clauses of the Constitution. Evitis

v. Lucy, 469 U.S. 387 (1985). The right to counsel on

a direct criminal appeal is a due process right. Cf.

Miller v. Keeney, 882 F.2d 1428, 1431 n.4 (9th Cir.

1989). An indigent defendant is entitled to the

appointment of counsel to assist him on his first

appeal. Entsminger v. Towa, 386 U.S. 748, 751

(1967).

The law does not require appointed counsel to

raise every available non-frivolous issue. Jones v.

Barnes, 463 U.S. 745 (1983). The law should require,

however, that a court-appointed attorney raise those

issues that the appellant himself believes are the

most likely to result in relief being granted. A lawyer

should acquisce in the client’s choice of which non-

frivolous issues to pursue. Jones v. Barnes, 463 U.S.

745, 754 (1983) (BLACKMUN, J., concurring). It is

the defendant that should have the right to decide

which non-frivolous issues should be presented on

appeal. Jones v. Barnes, 463 U.S. 745, 758 (1983)

(BRENNAN, J., dissenting).

This is not a case of an_ unsophisticated

defendant asking his court-appointed counsel to

advance dubious claims on _ appeal. Rather,

20

Petitioner was simply asking his court-appointed

attorney to advance those arguments he previously

brought forth to the same court of appeals in a writ of

mandamus.

In the present case, the Gonzalez-Lopez

arguments that Petitioner attempted to advance were

clearly stronger than those issues that court-

appointed counsel ultimately presented to the court

of appeals. Court appointed-counsel simply ignored

the requests of the Petitioner. Under Jones v. Barnes

Petitioner could not force his court-appointed counsel

to raise the Gonzalez-Lopez arguments. His only

option, therefore, was to proceed pro se.

The court of appeals should have allowed

Petitioner to do so. Petitioner made his request early

enough not to be a hindrance to the appeal. He also

identified his points ef error and explained that the

reason he wished to proceed pro se was because his

court-appointed counsel failed to raise the issue.

(Exhibits 6, 7). By failing to allow Petitioner to

proceed pro se, the circuit court effectively deprived

Petitioner of a meaningful appeal. It is the Petitioner

who must bear the consequences of any affirmance

and it is only just that his choice of which points of

error to pursue be_ honored. Respect for the

individual is the lifeblood of the law. See Illinois v.

Allen, 397 U.S. 337, 350-351 (1970) (BRENNAN, J.,

concurring). To force a lawyer’s decisions on a

defendant “can only lead him to believe that the law

contrives against him.” See Faretta, 422 U.S. at 834.

(2) Reasons for granting the writ.

The Fifth Circuit Court of Appeals has entered

a decision in conflict with the decisions of another

United States court of appeals on the same important

matter; has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for an

exercise of this Court’s supervisory power; has

decided an important question of federal law that has

not been, but should be, settled by this Court; and

has decided an important federal question in a way

that conflicts with relevant decisions of this Court

The district court’s actions in twice removing

Petitioner's counsel constitute a judicial usurpation

of power. A district court should not be free to play

ping-pong with the Sixth Amendment. It 1s the

Petitioner Goodson who will, “bear the personal

consequences of a conviction” and not the district

judge. See United States v. Davis, 285 F.3d 378, 384

(5th Cir. 2002) cert. denied, White v. United States,

537 U.S. 1066, 123 S. Ct. 618 (2002). Petitioner

Goodson has, “a right to preserve actual control over

his defense.” Jd.

The actions of the district court render the

right to counsel meaningless and wholly eviscerates

this Court’s decision in Gonzalez-Lopez. The case at

bar has a bearing on every criminal case filed in the

country. Now it appears that alla district judge need

do to avoid having a difficult or unpleasant lawyer

appear before it is to make a general accusation of

attorney misconduct. This Court should take the

opportunity to reaffirm the principles espoused in

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

99

y

and strongly reject the district court’s actions in this

case.

After his conviction, Petitioner notified the

court of his desire to appeal. Petitioner’s appeal, like

most appeals in the federal system, was prosecuted

by a court-appointed lawyer. This case, therefore,

has far reaching consequences for the public and for

the sytem of appointing lawyers. At a time when the

public’s confidence in court-appointed lawyers is at

an all time low, this Court should take the

opportunity to reaffirm the rights of the individual

defendant, wealthy or poor, when it comes to

managing the defense of a criminal case in which the

defendant alone will suffer the consequences of any

adverse ruling.

¢)*

St ©

CONCLUSION

The district court plainly erred by denying

Petitioner his counsel of choice. The Fifth Circuit

Court of Appeals abused its discretion by refusing to

allow Petitioner to present his Gonzalez-Lopez claims

pro se. Based on the foregoing, Petitioner prays that

this Petition for Writ of Certiorari be granted. The

Court may wish to consider summary reversal of the

decision of the Fifth Circuit Court of Appeals.

Respectfully submitted,

J 2

4

By: =D: 7

R. Scott Shearer

TBA No. 00786464

929 Preston, Suite 200

Houston, TX 77002

(713) 254-5629

(713) 224-2889 FAX

Counsel of Record