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United States v. Richardson

United States District Court, E.D. Virginia, Newport News Division

January 4, 2017

UNITED STATES OF AMERICA
v.
DAVID RICHARDSON, Defendant. Civil No. 4:15cv49

          ORDER

         This 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 DENIED.

         I. PROCEDURAL HISTORY

         On 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.

         On June 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.

         On 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.

         II. DEFENDANT'S MOTION

         On 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.

         In 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 [C]A].

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).

         The 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. ΒΆ 5. However, as noted, Mr. ...


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