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United States v. Kelley

United States Court of Appeals, Eighth Circuit

December 16, 2014

United States of America, Plaintiff - Appellee
Christopher Curtis Kelley, Defendant - Appellant

Submitted September 11, 2014

Appeal from United States District Court for the Western District of Missouri - Jefferson City.

For United States of America, Plaintiff - Appellee: Jim Lynn, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Jefferson City, MO.

For Christopher Curtis Kelley, Defendant - Appellant: Michael March Brownlee, BROWNSTONE LAW, Winter Park, FL; Andrew Greenlee, ANDREW B. GREENLEE, P.A., Sanford, FL; Jennifer J. Wirsching, LIBERTY BELL LAW GROUP, Burbank, CA.

Christopher Curtis Kelley, Defendant - Appellant, Pro se, Texarkana, TX.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.


Page 435

RILEY, Chief Judge.

A grand jury indicted Christopher Kelley on two counts of arson. Before trial, Kelley moved to have his court appointed attorney replaced. The magistrate judge denied Kelley's motion. On the morning Kelley's trial was to begin, Kelley moved for substitute counsel or, alternatively, to proceed pro se. The district court denied the motion. At trial, a jury found Kelley guilty on both arson counts. Kelley now directly appeals the district court's orders regarding his representation at trial. We affirm in part and, retaining jurisdiction, remand in part to the district court for clarification. [1]


After Kelley filed an affidavit of financial status, the magistrate judge appointed a federal public defender to represent Kelley.

Page 436

Five months later, on December 7, 2012, Kelley filed a " Notice of Defendant's Request for Substitution of Counsel," claiming his public defender was " ineffective." The magistrate judge heard argument on Kelley's request three days later.[2] At the hearing, Kelley personally submitted a letter to the court with detailed complaints about the public defender.

Responding to the specific issues raised in the letter, the magistrate judge first determined Kelley's concern that his counsel failed to test certain evidence was moot because the evidence had been destroyed. Similarly, the magistrate judge found Kelley's attorney could not examine some other evidence because it, too, had been destroyed nine months before Kelley was indicted. Kelley also complained his counsel did not appropriately communicate with him, but the magistrate judge found Kelley partly at fault for missing meetings with his attorney.

After addressing Kelley's additional concerns, the magistrate judge turned to Kelley's request for substitute counsel, including his claim that the public defender was ineffective. The magistrate judge informed Kelley, " You can't raise the claim of ineffective assistance of counsel prior to a finding of guilt in a case. That can only be raised in a . . . § 2255." Nevertheless, the magistrate judge concluded, " I don't think you have a valid claim for ineffective assistance of counsel . . . . [and] I don't see any reason for substitution of counsel at this point at all."

Kelley then complained the attorney had failed to file any pretrial motions, including a motion to suppress. The magistrate judge stated,

There's no basis for me to appoint new counsel. . . . Under the law you have no right, when you receive appointed counsel, to decide whether or not you get new counsel. That's a decision for the Court. I find, for the record, [the public defender] is doing an extremely competent job in representing you from what I can see. He has given you good advice. He has explained why he hasn't filed any pretrial motions to suppress evidence. I find those explanations are reasonable. And based upon a solid foundation on what the law is and what his obligation is to do, to defend people in criminal cases[,] I'm going to deny your request for substitution of counsel.

Later, the magistrate judge granted Kelley's motions to continue, setting trial for April 22, 2013.

On April 16, 2013, the magistrate judge gave notice for a status conference to be held the next day. The magistrate judge explained he called the hearing at the public defender's request, because Kelley wanted to discuss attorney representation again. The magistrate judge addressed Kelley's particular concerns with the public defender's trial preparation, but Kelley did not expressly request substitute counsel.

On April 22, 2013, the first day of trial, Kelley appeared in person for the first time before the district court. Before trial, the public defender informed the district court that Kelley did not want the public defender to represent him. The district court excluded the prosecutor from the courtroom, although at Kelley's request, some observers remained. Kelley explained to the district court that Kelley had not had a chance to view all the evidence against him and he had several communication problems with his ...

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