Filed: Feb. 27, 2018
Latest Update: Feb. 27, 2018
Summary: RENEWED REQUEST BY THE OFFICE OF THE FEDERAL DEFENDER IN THE EASTERN DISTRICT OF CALIFORNIA TO BE REMOVED AS COUNSEL; DECLARATION; PROPOSED ORDER LAWRENCE J. O'NEILL , District Judge . I, Charles J. Lee, as Branch Chief for Office of the Federal Defender in the Eastern District of California, Fresno, renew the request by our office to be relieved as counsel in the above captioned matter. As set forth in the attached declaration, pursuant to Federal Rules of Criminal Procedure, Rule 11(e), M
Summary: RENEWED REQUEST BY THE OFFICE OF THE FEDERAL DEFENDER IN THE EASTERN DISTRICT OF CALIFORNIA TO BE REMOVED AS COUNSEL; DECLARATION; PROPOSED ORDER LAWRENCE J. O'NEILL , District Judge . I, Charles J. Lee, as Branch Chief for Office of the Federal Defender in the Eastern District of California, Fresno, renew the request by our office to be relieved as counsel in the above captioned matter. As set forth in the attached declaration, pursuant to Federal Rules of Criminal Procedure, Rule 11(e), Mr..
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RENEWED REQUEST BY THE OFFICE OF THE FEDERAL DEFENDER IN THE EASTERN DISTRICT OF CALIFORNIA TO BE REMOVED AS COUNSEL; DECLARATION; PROPOSED ORDER
LAWRENCE J. O'NEILL, District Judge.
I, Charles J. Lee, as Branch Chief for Office of the Federal Defender in the Eastern District of California, Fresno, renew the request by our office to be relieved as counsel in the above captioned matter. As set forth in the attached declaration, pursuant to Federal Rules of Criminal Procedure, Rule 11(e), Mr. Graves wishes to challenge his guilty plea entered January 22, 2018. Because one of the primary basis for effectively challenging a guilty plea is to establish that the plea was not entered into knowingly and voluntarily, and because our office counseled Mr. Graves prior to his decision to enter his guilty plea and represented him at his change of plea hearing, our office has an inherent conflict in representing him on his direct appeal, and can no longer communicate with him lest we be seen as in any way trying to influence his decision to appeal. Mr. Graves is entitled to conflict-free counsel that can advise him on the viability of his appeal, which necessarily requires counsel to review the representation that Mr. Graves received prior to and during his change of plea. Because our office was counsel of record, we cannot effectively advise Mr. Graves regarding our representation. Accordingly, our office respectfully requests to be relieved as counsel, and conflict-free panel counsel be appointed. The request is supported by the attached declaration.
I, Charles J. Lee, declare as follows:
1. I am the Fresno Office Branch Chief of the Federal Defenders for the Eastern District of California.
2. The Office of the Federal Defender was appointed to represent Mr. Arthur J. Graves on January 19, 2018, in the Eastern District of California case 1:18-cr-0024-LJO.
3. Assistant Federal Defender Andrew Wong was assigned to represent Mr. Graves. Mr. Wong met with Mr. Graves prior to his court appearance on January 22, 2018.
4. On January 22, 2018, Mr. Wong represented Mr. Graves at his court hearing where Mr. Graves entered a guilty plea to the citation at issue.
5. At the conclusion of his hearing on January 22, 2018, Mr. Wong informed me that Mr. Graves indicated that he wanted to appeal his sentence.
6. Several days later, Mr. Wong informed me he had contacted Mr. Graves and Mr. Graves reiterated his desire to appeal.
7. A few days later, Mr. Wong informed me he had a follow up conversation with Mr. Graves to confirm that it was his intent to appeal his sentence only. Mr. Graves indicated that he wanted to challenge his guilty plea as well.
8. Following that conversation with Mr. Graves, Mr. Wong informed me of Mr. Graves' intent to challenge the entry of his guilty plea. I informed Mr. Wong that we could no longer continue to represent Mr. Graves as Mr. Graves would need to be able to explore the possibility of withdrawing his plea on the basis of ineffective assistance of counsel, which meant we could no longer advise him and should not have any further communication with him. I instructed Mr. Wong to simultaneously file the requested notice of appeal as well as a motion to withdraw as counsel, and instructed our office to identify available panel who would be able to seamlessly take over the case going forward.
9. Prior to Mr. Wong filing the motion to withdraw, our office contacted CJA panel counsel Karen L. Lynch and confirmed that she would be able to accept appointment in this matter.
10. On February1, 2018, Mr. Wong filed a motion to withdraw as counsel and requested the appointment of Karen L. Lynch as counsel. On February 7, 2018, this Court denied our motion to withdraw as counsel.
11. Mr. Wong was instructed to file a motion for reconsideration explaining the legal basis for our conflict. He did so on February 13, 2018, and this Court denied the motion without prejudice on February 14, 2018. This Court indicated that it needed a statement asserting that the issue of ineffective assistance of counsel would be explored in any future representation.
12. Because any communication with Mr. Graves at this juncture could be construed as an attempt to dissuade him from his stated intent of appealing the guilty plea that he entered pursuant to our representation, I am not comfortable having an attorney from our office speak with Mr. Graves. Accordingly, I instructed one of our investigators to reach out to Mr. Graves and confirm his intent to appeal his conviction.
13. Mr. Graves subsequently called our office and left a voicemail on February 27, 2018, that was over three minutes long. I have reviewed the voicemail. Mr. Graves unequivocally expressed dissatisfaction with our office, and unambiguously asserted his desire to plead not guilty and have his day in court.
I declare under penalty of perjury that the foregoing is true and correct.
Signed this 27th day of February, 2018 in Fresno, California.
/s/Charles J. Lee
_________________________
Charles J. Lee
ORDER
The Office of the Federal Defender is relieved and CJA Panel Counsel Karen L. Lynch is appointed to represent Arthur J. Graves.
IT IS SO ORDERED.
