United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
Clifford Shirley, Jr., United States Magistrate Judge.
case is before the Court on defense counsel's Motion to
Substitute Counsel [Doc. 46], filed on May 16, 2017, and
referred [Doc. 47] to the undersigned on May 18, 2017.
See 28 U.S.C. § 636(b). The parties appeared on
June 8, 2017, for a hearing on the motion. Assistant United
States Attorney Kelly A. Norris appeared on behalf of the
Government. Assistant Federal Defender Benjamin G. Sharp
represented the Defendant, who was also present.
Wooden entered a change of plea before Chief District Judge
Varlan on August 2, 2016, and is scheduled for sentencing in
late June. In his motion, Mr. Sharp asks the Court to
substitute new counsel for the Defendant, because the
Defendant wishes to file a motion to withdraw his guilty
plea. He contends that he has an actual conflict of interest,
which prevents him from litigating a motion to withdraw the
guilty plea for the Defendant.
June 8 hearing, Mr. Sharp stated that while he and the
Defendant had maintained a good attorney-client relationship,
circumstances surrounding and following the Defendant's
entry into a plea agreement require that he no longer
represent the Defendant. He stated that when the parties
negotiated the guilty plea, they believed that the Defendant
did not qualify as a Armed Career Criminal. Based upon a case
from the Court of Appeals for the Eleventh Circuit, which was
entered following the Defendant's entry of a guilty plea,
the Government believed the Defendant to be an Armed Career
Criminal and objected to the guideline range of twenty-one to
twenty-seven months imprisonment. Mr. Sharp stated that while
the Defendant wanted to withdraw his plea sooner, Mr. Sharp
took time to look into the matter. He states that this delay
moving to withdraw his guilty plea could hinder the
Defendant's opportunity to withdraw his plea.
Accordingly, Mr. Sharp stated that he could potentially be a
witness to explain that the delay was due to him.
Additionally, Mr. Sharp stated that the Defendant may want to
argue that he provided the ineffective assistance of counsel
for advising the Defendant that he did not qualify as an
Armed Career Offender. Mr. Sharp stated that the Defendant
needs new counsel to advise him on a motion to withdraw his
Norris stated that the Government objects to the substitution
of Mr. Sharp. She said that on November 9, 2016, the
Government filed a Notice of no objection to the
Defendant's Presentence Report. On November 23, 2016, a
new Eleventh Circuit case caused her to determine that the
Defendant qualified as an Armed Career Criminal. AUSA Norris
said that on November 29, 2016, she objected to the
Presentence Report on this basis. She said that the
Government acted as expeditiously as possible and that the
case should now move forward to sentencing with current
defense counsel. Although she stated that the Government
would likely object to a motion to withdraw the guilty plea
by the Defendant, she accepted time to consult with other
attorneys from her office before the Court made its decision
on replacing Mr. Sharp. The following day, June 9, 2017, AUSA
Norris contacted the Court and confirmed that the Government
would oppose a motion to withdraw the guilty plea.
3.7(a) of the Tennessee Rules of Professional Conduct
requires in pertinent part that “[a] lawyer shall not
act as an advocate at a trial in which the lawyer is likely
to be a necessary witness unless . . . (2) the testimony
relates to the nature and value of legal services rendered in
the case[.]” At first blush, the instant situation
appears to fall within this exception to the rule because Mr.
Sharp anticipates testifying about legal advice he gave the
Defendant when he was considering whether to enter into a
guilty plea and about the reason for the delay in filing a
motion to withdraw the guilty plea. Comment  to Rule
3.7(a)(2) is illuminating:
Paragraph (a)(2) recognizes that where the testimony concerns
the extent and value of legal services rendered in the action
in which the testimony is offered, permitting the lawyer to
testify avoids the need for a second trial with new counsel
to resolve that issue. Moreover, in such a situation the
judge has firsthand knowledge of the matter in issue; hence,
there is less dependence on the adversary process to test the
credibility of the testimony.
present case, a motion to withdraw the guilty plea raises the
possibility of conducting a trial in this case, without
regard to Mr. Sharp's substitution. Moreover, the private
conversations of the Defendant and defense counsel are not
something about which the District Court would have any
firsthand knowledge. Accordingly, the Court finds the
possibility that Mr. Sharp may need to testify at a hearing
on a future motion to withdraw the guilty plea, which the
Defendant states that he intends to file and the Government
says it will oppose, creates a conflict for Mr. Sharp between
his role as the Defendant's advocate and his role as a
potential witness. Because such conflict could deprive the
Defendant of the effective assistance of counsel at a hearing
on a motion to withdraw the guilty plea, the Court believes
it is prudent to allow Mr. Sharp to withdraw and to
substitute new counsel for the Defendant.
light of the potential conflict, the undersigned finds that
good cause exists to grant defense counsel's Motion to
Substitute Counsel [Doc. 46], the same is GRANTED, and Mr.
Sharp and the Federal Defender Services of Eastern Tennessee
(“FDS”) are relieved as counsel for the
Defendant. See Wilson v. Mintzes, 761 F.2d 275, 280
(6th Cir. 1985) (holding that a defendant seeking to
substitute counsel must show good cause). The Court
recognizes the need for the Defendant to be represented
continuously by conflict-free counsel. Attorney Michael B.
Menefee appeared at the June 8 hearing and agreed to accept
representation of the Defendant. The Court therefore and
hereby substitutes and appoints Mr. Menefee as counsel of
record for the Defendant pursuant to the Criminal Justice Act
(‘CJA”), 18 U.S.C. § 3006A. Mr. Sharp is
DIRECTED to provide the discovery and information from the
Defendant's file to new counsel.
it is ORDERED:
Attorney Sharp's Motion for Substitution of Counsel [Doc.
46] is GRANTED, and Mr. Sharp and FDS are permitted to
withdraw as the Defendant's counsel of record;
Attorney Michael B. Menefee is SUBSTITUTED and APPOINTED as
counsel of record for the Defendant pursuant to the CJA; and
Sharp is DIRECTED to provide the discovery and information
from the ...