United States District Court, E.D. Virginia, Newport News Division
matter comes before the Court upon the Motion to Withdraw as
Counsel for David Richardson ("Defendant") filed by
one of Defendant's counsel, Mary E. Davis. ECF No. 96.
For the reasons set forth herein, Defendant's Motion is
August 23, 2013, pursuant to a written plea agreement with
the United States, Defendant pled guilty before this Court to
one count of Conspiracy to Possess with Intent to Distribute
Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). ECF Nos. 2, 33, 35. On December 3, 2013, this
Court sentenced Defendant to 260 months in prison and a
five-year term of supervised release. ECF No. 50. On June 1,
2015, Defendant filed a Motion to Vacate, Set Aside, or
Correct a Sentence pursuant to 28 U.S.C. § 2255; among
other claims for relief, Defendant argued that he should be
resentenced because one of the two felonies that qualified
him as a career offender had since been vacated. ECF No. 67.
After granting in part the Motion to Vacate for this reason,
ECF No. 77, the Court resentenced the Defendant on May 10,
2016 and entered an Amended Judgment imposing a 120-month
term of imprisonment, a five-year term of supervised release,
and a $12, 500 fine. ECF No. 84. Defendant appealed.
2, 2016, the United States Court of Appeals for the Fourth
Circuit granted Defendant's Motion for appointment of
counsel pursuant to the Criminal Justice Act
("CJA"), 18 U.S.C. § 3006A, and appointed Mary
E. Davis, current counsel for Defendant, to represent
Defendant. United States v. Richardson. No. 16-6660,
PACER Nos. 8, 9 (4th Cir. 2016) (hereinafter "Case No.
16-6660"). Ms. Davis had also previously made an
appearance in this Court in June 2015 as retained counsel to
represent Defendant during the 28 U.S.C. § 2255
proceedings in this Court; alongside Ms. Davis, Trey Kelleter
had also been retained as local counsel at that time. ECF
Nos. 68, 69.
November 17, 2016, the Fourth Circuit issued an Order and
Judgment, which vacated the part of Defendant's sentence
imposing a fine and remanded Defendant's case to this
Court for resentencing consistent with the Fourth
Circuit's decision. ECF Nos. 93, 94. Defendant is set to
be resentenced by this Court on January 31, 2017.
December 20, 2016, Ms. Davis filed the instant Motion,
requesting leave to withdraw as one of Defendant's
counsel and asking that the Court appoint Mr. Kelleter as
counsel for Defendant pursuant to the CJA. ECF No. 96. To
further complicate this matter, as noted above, Mr. Kelleter
was already a counsel in this case, having filed the
Defendant's Motion to Vacate under 28 U.S.C. § 2255,
ECF No. 66, and notice of appeal, ECF No. 82. No motion to
withdraw has been made by Mr. Kelleter.
support of the Motion by Ms. Davis, who is based in
Washington, D.C., Ms. Davis advises the following:
1. Family members of [Defendant] retained the services of
Mary Davis in order to file a motion pursuant to 28 U.S.C.
§ 2255. Mr. Kelleter acted as local counsel.
2. In his appeal to the Fourth Circuit in Case Number
16-6660, [Defendant] submitted a financial affidavit and a
request for appointment of counsel. Inasmuch as [Defendant]
had been incarcerated for over three years and had no income
or assets, counsel was appointed to represent him on appeal.
3. [Defendant's] family no longer has funds available to
pay for Ms. Davis' further representation, in particular
travel expenses. [Defendant] also has no funds available and
appears to be eligible for appointment of counsel under the
Id. ¶¶ 1-3. See also Case No.
16-6660, PACER Nos. 7, 8, 9 (granting Defendant's motion
to appoint Ms. Davis as his counsel, pursuant to the CJA,
during proceedings before the Fourth Circuit).
Motion adds that Mr. Kelleter should be appointed pursuant to
the CJA as Defendant's counsel for resentencing because
Mr. Kelleter "has acted as local counsel, " is
familiar with the case, is on the CJA panel, and Defendant
"has advised Ms. Davis that he is very agreeable to
having Mr. Kelleter appointed to represent him at
re-sentencing." Id. ¶ 5. However, as
noted, Mr. ...