United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER GRANTING PRO SE MOTION
FOR APPOINTMENT OF NEW COUNSEL
L. HORAN UNITED STATES MAGISTRATE JUDGE
Alexis C. Norman has been charged with Conspiracy to Commit
Health Care Fraud in violation of 18 U.S.C. § 1349 (18
U.S.C. § 1347); Health Care Fraud, Aiding and Abetting
Health Care Fraud, and Committing an Offense While on Release
in violation of 18 U.S.C. §§ 1347, 2, and 3147;
Health Care Fraud and Aiding and Abetting Health Care Fraud
in violation of 18 U.S.C. §§ 1347 and 2; and
Aggravated Identity Theft and Aiding and Abetting in
violation of 18 U.S.C. §§ 1028A(a)(1) and 2 in a
superseding indictment filed in this district. See
Dkt. No. 27. She is set for trial on June 4, 2018.
See Dkt. No. 30.
Court appointed the D. Robin McCarty to represent Ms. Norman
in this case. See Dkt. No. 11. Ms. Norman has now
filed a pro se Motion for Appointment of New Counsel,
see Dkt. No. 31, which United States District Judge
Jane J. Boyle has referred to the undersigned United States
magistrate judge for determination under 28 U.S.C. §
636(b), see Dkt. No. 32.
Court held a hearing on the motion on May 17, 2018, at which
Ms. Norman and Mr. McCarty and counsel for the government
appeared. See Dkt. No. 33.
the hearing, the Court, for the reasons explained on the
record, the Court GRANTS the Motion for Appointment of New
Counsel [Dkt. No. 31].
general matter, “[a]n attorney may withdraw from
representation only upon leave of the court and a showing of
good cause and reasonable notice to the client.” In
re Wynn, 889 F.2d 644, 646 (5th Cir.1989). The
withdrawing attorney bears the burden of specifying and
proving the existence of good cause for withdrawal. See
United States v. Austin, 812 F.3d 453, 456 (5th Cir.
2016) (citing United States v. Wild, 92 F.3d 304,
307 (5th Cir. 1996); Wynn, 889 F.3d at 646). A
court's determination whether an attorney has good cause
to withdraw depends on the facts and circumstances of the
particular case. See Wild, 92 F.3d at 307
(“When filing a motion to withdraw, an attorney should
provide a detailed explanation of the reasons why he believes
that ‘good cause' exists for him to withdraw as
counsel. .... The trial court has the discretion to require
specific reasons before granting such a motion.”).
“The withdrawal of an attorney in a given case is a
matter entrusted to the sound discretion of the court.”
United States v. Conlan, 786 F.3d 380, 390 (5th Cir.
2015) (internal quotation marks omitted).
there is a demonstrated conflict of interest, or counsel and
defendant are embroiled in an irreconcilable conflict that is
so great that it results in a total lack of communication
preventing an adequate defense, there is no abuse of
discretion in denying a motion to withdraw. See
Wild, 92 F.3d at 307. “If a district court is not
persuaded that good cause for withdrawal exists, it has
substantial latitude to deny an attorney's motion to
withdraw.” White v. BAC Home Loans Servicing,
LP, No. 3:09-cv-2484-G, 2010 WL 2473833, at *1 (N.D.
Tex. June 15, 2010) (citations omitted). “Even where
good cause for withdrawal exists, it is ‘incumbent on
the court to assure that the prosecution of the lawsuit
before it is not disrupted by the withdrawal of
counsel.'” Id. at *3 (quoting
Broughten v. Voss, 634 F.2d 880, 882 (5th Cir. Jan.
1981)). “This requires the court to consider certain
additional factors before allowing an attorney to withdraw.
Those additional factors include: (1) the extent to which the
attorney's withdrawal will delay or disrupt the case; (2)
the length of time for which the case and any dispositive
motions have been pending; (3) the time it would take - and
the financial burden it would impose on - the client to find
new counsel; (4) the financial burden the attorney would
suffer if not allowed to withdraw; (5) prejudice to the other
parties; and (6) whether withdrawal will harm the
administration of justice.” Id. (citations
regard to a defendant's request for appointment of
substitute counsel, “[a]lthough an indigent defendant
has a Sixth Amendment right to be represented by counsel in
his criminal proceedings, he is not entitled to demand a
different appointed counsel in the absence of showing good
cause.” United States v. Contreras, 558
Fed.Appx. 400, 401 (5th Cir. 2014); see also United
States v. Young, 482 F.2d 993, 995 (5th Cir. 1973)
(“Although an indigent criminal defendant has a right
to be represented by counsel, he does not have a right to be
represented by a particular lawyer, or to demand a different
appointed lawyer except for good cause. Unless a Sixth
Amendment violation is shown, whether to appoint a different
lawyer for an indigent criminal defendant who expresses
dissatisfaction with his court-appointed counsel is a matter
committed to the sound discretion of the district
court.” (citation omitted)); cf. 18 U.S.C.
§ 3006A(c) (“The United States magistrate judge or
the court may, in the interests of justice, substitute one
appointed counsel for another at any stage of the
proceedings.”). “[T]he 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).
context of appointed counsel, the Court “is
constitutionally required to provide substitute counsel only
if there is a substantial conflict or problem affecting the
ability to represent the defendant, ” that is, a
showing of conflict of interest, a complete breakdown in
communication, or an irreconcilable conflict. United
States v. Mitchell, 709 F.3d 436, 441 (5th Cir. 2013). A
communication breakdown caused by a defendant's
unwillingness to cooperate or communicate with her attorney
generally does not justify appointment of new counsel.
See, e.g., United States v. Simpson, 645
F.3d 300, 307-08 (5th Cir. 2011). Neither is appointment of
new counsel generally required where counsel continues to
meet and communicate with a defendant whose complaints relate
mainly to disagreement with counsel's trial strategy or
who might, if she were an attorney or representing herself,
prepare and try the case differently. See, e.g.,
United States v. Romans, 823 F.3d 299, 312-13 (5th
Cir. 2016); United States v. Hernandez, 502
Fed.Appx. 363, 367 (5th Cir. 2012). As the United States
Court of Appeals for the Fifth Circuit has explained,
[a] defendant is entitled to counsel capable of rendering
competent, meaningful assistance in the preparation and trial
of the pending charges, including appropriate evaluation and
advice with reference to a plea of guilty. A defendant is not
entitled to an attorney who agrees with the defendant's
personal view of the prevailing law or the equities of the
prosecutor's case. A defendant is entitled to an attorney
who will consider the defendant's views and seek to
accommodate all reasonable requests with respect to trial
preparation and trial tactics. A defendant is entitled to
appointment of an attorney with whom he can communicate
reasonably, but has no right to an attorney who will docilely
do as he is told. Every defendant is entitled to the
assistance of counsel dedicated to the proposition, and
capable of assuring that, the prosecution's case shall be
presented in conformity with the Constitution, rules of
evidence and all other controlling rules and practices. No.
defendant has a right to more.
United States v. Moore, 706 F.2d 538, 540 (5th Cir.
the Sixth Amendment, the constitutional ineffective
assistance doctrine applies only on post-judgment review,
see generally Strickland v. Washington, 466 U.S. 668
(1984), and our system of justice requires the Court to
perform a neutral role in an adversary system in which a
criminal defendant is entitled to representation by counsel
capable of rendering competent, meaningful assistance in the
preparation and trial of the pending charges brought by the
government. The Supreme Court has explained that,
[i]n our adversary system, in both civil and criminal cases,
in the first instance and on appeal, we follow the principle
of party presentation. That is, we rely on the parties to
frame the issues for decision and assign to courts the role
of neutral arbiter of matters the parties present. To the
extent courts have approved departures from the party
presentation principle in ...