# Petition for Writ of Certiorari — Goodson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1102

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2694%3A1. Public record. Not legal advice.