UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARKE COLEMAN SHAW,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:07-hc-02214-BR)
Submitted: December 15, 2008 Decided: January 30, 2009
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Michael Lockridge, Special
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 30, 2007, the Government moved to certify
Clarke Coleman Shaw as a sexually dangerous person under 18
U.S.C. § 4248(a) (2006). In response to this petition, as well
as seventeen other similar petitions, the district court noted
that it had found 18 U.S.C. § 4248 unconstitutional, see United
States v. Comstock, 507 F. Supp. 2d 522, 559 (E.D.N.C. 2007).
Comstock, and consequently the issue of the constitutionality of
§ 4248, was on appeal in this court. See United States v.
Comstock, 551 F.3d 274 (4th Cir. 2009) (district court affirmed
January 8, 2009). Accordingly, by order entered January 10,
2008, the district court appointed the Federal Public Defender
to represent Shaw and the other Respondents and held in abeyance
any further action in the proceedings pending decision in
Comstock. Shaw’s counsel moved to withdraw from representation,
citing “a deterioration of the attorney-client relationship.”
On the basis that Shaw’s case had been stayed pending the
outcome in Comstock, the district court denied the motion
without prejudice. Shaw now appeals the order denying counsel’s
motion to withdraw from representation.
As a threshold matter, we note that we enjoy
jurisdiction over this interlocutory appeal under the collateral
order doctrine which “is limited to trial court orders affecting
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rights that will be irretrievably lost in the absence of an
immediate appeal.” Richardson-Merrell, Inc. v. Koller, 472 U.S.
424, 430-31 (1985). See Whiting v. Lacara, 187 F.3d 317, 320
(2d Cir. 1999) (holding denial of counsel’s motion to withdraw
as counsel appealable under the collateral order doctrine).
With respect to the merits, whether a motion for
substitution of counsel should be granted is within a trial
court’s discretion. United States v. Corporan-Cuevas, 35 F.3d
953, 956 (4th Cir. 1994). An indigent defendant has no right to
a particular attorney and can demand new counsel only for good
cause. See United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988). Further, a defendant does not have an absolute right to
substitution of counsel. United States v. Mullen, 32 F.3d 891,
895 (4th Cir. 1994). In evaluating whether the trial court
abused its discretion in denying a motion to withdraw, this
court must consider: (1) the timeliness of the motion; (2) the
adequacy of the court’s inquiry; and (3) whether the
attorney/client conflict was so great that it resulted in total
lack of communication, preventing an adequate defense. * United
*
This court applies the same test whether reviewing
counsel’s motion to withdraw or a party’s motion for
substitution of counsel. See United States v. Johnson, 114 F.3d
435, 442 (4th Cir. 1997).
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States v. Reevey, 364 F.3d 151, 156-57 (4th Cir. 2004). These
factors are weighed against the district court’s “interest in
the orderly administration of justice.” Id. at 157.
Based on the sole reason given to the district court,
a deterioration of the attorney-client relationship, we find no
abuse of discretion in the district court’s order denying
counsel’s motion to withdraw. The case had been stayed pending
decision in Comstock and therefore the court reasonably
determined that withdrawal was unnecessary at that juncture. To
the extent appellate counsel argues that Shaw’s case is
“compelling” and different than the other fifty-six defendants
awaiting decision in Comstock, this argument was not presented
to the district court and Shaw has therefore waived review in
this court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(noting generally federal appellate court does not address
issues not raised below); Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993) (explaining issues not raised in district
court will not be considered on appeal unless the refusal to
consider newly-raised issue would result in miscarriage of
justice).
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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