[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 99-1549
AMBROSE L. DEVANEY,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
and Schwarzer,* Senior District Judge.
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Owen S. Walker, Federal Defender Office, for appellant.
Victor A. Wild, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, and Paul G. Levenson, Assistant U.S.
Attorney, were on brief, for appellee.
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* Of the Northern District of California, sitting by designation.
July 12, 2000
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SCHWARZER, Senior District Judge. Ambrose Devaney appeals
from the denial of his § 2255 motion charging ineffective assistance of
counsel in his earlier trial in which he was convicted of conspiracy,
fraud and money laundering charges. Following affirmance of the
conviction, see United States v. Smith, 46 F.3d 1223 (1st Cir. 1995),
Devaney filed the instant motion.
Briefly stated, the relevant facts are as follows. Four days
before the scheduled trial date, Devaney appeared before the district
court and requested leave to change counsel and a continuance of the
trial to allow his proposed new counsel time to prepare for trial.
Devaney asserted that his present counsel had geared his defense solely
to making a deal with the government, that they did not have an
accurate grasp of the case, and that they could not protect him. The
court denied the request to delay the trial, observing that Devaney's
counsel were competent and skilled attorneys who had adequately
represented him up to now and appeared to be well prepared for trial.
The court noted further that it considered the request to be an effort
to obtain the severance that had previously been denied.
The case proceeded to trial at which the jury found Devaney
guilty on one count of conspiracy, three counts of bank fraud, and one
count of money laundering but acquitted him on three bank fraud counts
and three money laundering counts. We affirmed the conviction but did
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not rule on Devaney's ineffective assistance of counsel claim. See
Smith, 46 F.3d at 1236.
Devaney then filed the instant motion on the ground of
ineffective assistance of counsel. The district court denied the
motion without a hearing on April 16, 1999, see Devaney v. United
States, 47 F. Supp. 2d 130 (D. Mass. 1999), and granted a certificate
of appealability. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
Devaney argues first that the district court erred in
dismissing the motion because, in denying his request for a
continuance, it had failed to let him explain the substance of his
complaints about his counsel. Devaney cites United States v.
Prochilo, 187 F.3d 221 (1st Cir. 1999), in support. Prochilo held that
"[w]here the accused voices objections to appointed counsel, the trial
court should inquire into the reasons for dissatisfaction." Id. at
225, citing United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986).
Because the district court in Prochilo denied the motion for a
continuance to permit a substitution of counsel without hearing or
other inquiry, the judgment was reversed. Id. Unlike in Prochilo,
here the district court held a hearing to inquire into Devaney's
request and after hearing from Devaney, determined that good cause did
not exist for continuing the trial date.
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We review the district court's ruling for abuse of
discretion. See United States v. Allen, 789 F.2d 90, 92 (1st Cir.
1986). We take into account the trial court's discretion to balance
the defendant's interest in retaining counsel of his choice against
"the public's interest in the prompt, fair and ethical administration
of justice." United States v. Richardson, 894 F.2d 492, 495 (1st Cir.
1990). Considering the untimeliness of the request for continuance,
the fact that the court gave Devaney an opportunity to state the
grounds for his dissatisfaction, the lack of substance of the stated
grounds, and the circumstances of Devaney's request which raised a
suspicion that it was not in good faith, we find no abuse of
discretion.
Devaney's second ground of appeal is that, because factual
disputes existed, the district court erred in denying the motion
without an evidentiary hearing. "[E]videntiary hearings on motions are
the exception, not the rule . . . . Thus, a party seeking an
evidentiary hearing must carry a fairly heavy burden of demonstrating
a need for special treatment." United States v. McGill, 11 F.3d 223,
225 (1st Cir. 1993). The court acted well within its discretion in
denying the motion without a hearing, particularly considering that
Devaney did not request one. In a thorough opinion, the court reviewed
the submissions in support of the motion and found that they did not
entitle Devaney to relief. See Devaney, 47 F. Supp. 2d at 132-33. The
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court, moreover, was well-situated to assess the ineffectiveness of
counsel claim, having presided over the trial. See McGill, 11 F.3d at
225. We find no error.
For the foregoing reasons, the denial of the motion is
affirmed.
AFFIRMED.
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