Sixth Amendment:
A. Right to Jury Trial/Booker
B. Confrontation Clause
C. Speedy Trial
D. Right to Counsel/Self Representation
E. Indictment - Variance/Deplicity
F. Miscellaneous Sixth Amendment
Right to Counsel/Self Representation
Supreme Court Decisions
D. Right to Counsel/Self Representation• Right to Counsel of Choice
U.S. v. Gonzalez-Lopez, 05-352 (6/26/06)
> Defendant was charged in a drug conspiracy and the district court wrongfully forced him to go forward with trial without the hired counsel of his choice. Defendant was convicted and the conviction was reversed in the Eighth Circuit. The government appealed and the Supreme Court granted certiorari.
* Holding: The Court held that the denial of a defendant’s right to hire the counsel of his choice is a structural error for which harmless error analysis does not apply. Thus, whenever a defendant is wrongfully denied the right to hire the counsel of his own choosing, reversal is required. The Court qualified the statement by emphasizing that the ruling applied only to situations where the defendant’s right to hire the counsel of his choice was wrongfully denied; the ruling did not limit a court’s ability to define which attorneys may practice before it or to exclude an attorney based upon scheduling issues. Further, the court indicated that its decision did not apply to appointed counsel, only to privately retained attorneys. Accordingly, the conviction was reversed.
• Right to Counsel
Rothgery v. Gillespie County, 07-440 (6/23/08)
> Defendant was arrested in possession of a firearm based on the officers’ erroneous belief that he was a felon. Pursuant to procedural rules in Texas state courts, defendant was brought, without counsel, by the arresting officers before a magistrate, formally presented with the charge against him, and held in jail until he could post bond. As was the practice, no prosecutor participated in or was aware of this proceeding. Defendant was subsequently indicted and again detained on the charge. When he was finally appointed counsel, defendant was able to prove that he was not a felon, the charge was dismissed, and defendant sued the county, pursuant to 42 USC § 1983, based on the denial of counsel at the initial appearance before the magistrate. The district court granted summary judgment to the county, finding that defendant had no right to counsel at the initial proceeding, and the Fifth Circuit affirmed. The Supreme Court granted certiorari.
* Holding: The Court held that defendant’s right to counsel attached when he appeared before a judicial officer and learned of the pending charge, and his liberty was subject to restriction. The Court ruled that it was of no consequence that no prosecutor was involved in the proceeding because the initial appearance was clearly the start of the adversarial judicial process. Accordingly, the district court’s grant of summary judgment was reversed.
• Right to Counsel
Montejo v. Louisiana, 07-1529 (5/26/09)
> Defendant was charged with robbery and murder and began speaking with the police after his arrest. He was then brought before a judge, pursuant to Louisiana law, and appointed counsel. The record was not clear as to whether defendant actually requested counsel. Thereafter, the officers approached defendant at the jail, they obtained a Miranda waiver, and defendant continued to cooperate. Defendant subsequently went to trial, and the state sought to introduce defendant’s statements made after he was appointed counsel by the court. The trial court admitted the statements, defendant was convicted, and the conviction was affirmed on appeal. The Supreme Court granted certiorari.
* Holding: The Supreme Court in Michigan v. Jackson held that police may not interrogate a defendant once he or she has requested counsel at an arraignment or similar proceeding. The Court held that the rule of Jackson was improvidently decided and overruled it. Instead, the Court held that the protections of Miranda and Edwards were sufficient to protect a defendant’s rights in this context. Accordingly, the case was remanded for the courts to analyze (1) whether defendant’s rights were violated under Miranda-Edwards, and (2) whether defendant’s Sixth Amendment waiver “was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer.”
• Right to Counsel - Exclusionary Rule
Kansas v. Ventris, 07-1356 (4/29/09)
> Defendant was charged with murder. Prior to trial, the state planted an informant in defendant’s holding cell. Defendant subsequently confessed to the informant. At trial, defendant testified in his own defense and contradicted the confession he made to the informant. As a result, the state called the informant and argued that, although the informant-confession violated defendant’s Sixth Amendment right to counsel, the exclusionary rule was not applicable to evidence offered in rebuttal for impeachment. The trial court permitted the testimony. Defendant was convicted and he appealed. The Kansas Supreme Court reversed the conviction, holding that defendant’s Sixth Amendment rights had been violated. The Supreme Court granted certiorari.
* Holding: The Court held that the exclusionary rule was not applicable to the pre-trial violation of defendant’s Sixth Amendment right to counsel where the evidence was offered only as impeachment of defendant’s contradictory testimony at trial. Accordingly, defendant’s conviction was affirmed.
• Right to Self-Representation - Competency
Indiana v. Edwards, 07-208 (6/19/08)
> Defendant was charged in Indiana state court with attempted murder, battery, criminal recklessness, and theft. During pretrial proceedings, he was found incompetent and restored to competency on three occasions. Prior to trial, defendant requested to represent himself. The trial court denied defendant’s request, finding that, although he was competent to stand trial, he was not competent to represent himself. The jury hung on the attempted murder and battery charges but convicted defendant on the other counts. Prior to defendant’s retrial, he again requested to represent himself and the trial court denied his request. Defendant was then convicted of the more serious charges. On appeal, the Indiana
court reversed defendant’s convictions, finding that he was denied his right of self-representation. The state appealed to the Supreme Court.
* Holding: The Court held that the Sixth Amendment does not prohibit a trial judge from inquiring into a defendant’s mental competency to represent himself at trial. Particularly, a trial court may insist upon representation by counsel for defendants who, even though competent to stand trial, “still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Accordingly, defendant’s convictions were affirmed.
Sixth Circuit
• Right of Self-Representation
Jones v. Jamrog, 03-1665 (7/5/05)
> Defendant was charged in state court with felonious assault. The state court system had a policy that certain police records could not be turned over to a defendant, but would only be provided to a defendant’s counsel, who could allow the defendant to view, but not retain, the records. Defendant indicated to the trial court that, if the records policy was going to be enforced, that he desired to represent himself. The state court refused to let defendant represent himself, and he was convicted. Defendant appealed through the state court system, and then filed a federal habeas corpus petition, which was denied by the district court. Defendant appealed.
* Holding: The court held that defendant’s right to self-representation, pursuant to the Sixth Amendment, had been violated. The court disagreed with the state courts’ conclusion that defendant’s desire to represent himself was equivocal, and thus, not a knowing and voluntarily waiver of counsel. The court emphasized that the lower court’s duty is not to hypothesize as to under what circumstances the defendant would have preferred a lawyer, but only to determine if the defendant’s decision to proceed pro se is knowing, intelligent, and voluntary. Thus, the conviction was reversed.
• Right of Self-Representation
James v. Brigano, 05-4003 (11/30/06)
> Defendant was charged in state court with narcotic and firearm offenses and on the day of trial his attorney told the trial judge that he had not prepared for trial, and requested a continuance. The attorney was defendant’s third different counsel on the case, and the court ordered that the trial would proceed. After making several outbursts during the jury selection process, defendant requested to either fire his attorney or represent himself. The trial court permitted defendant to represent himself and he was convicted. After losing his appeals in the state court, defendant filed a federal habeas action claiming that his waiver of counsel, and request to represent himself, was not made knowingly and voluntarily. The district court agreed and granted the petition. The state appealed.
* Holding: The court held that defendant’s waiver of counsel was not knowing and voluntary. The court emphasized that the trial court failed to explain to defendant the risks and dangers of proceeding pro se and made no explicit findings that defendant’s waiver was knowing or intelligent. The court specifically found error in the trial court’s conclusion that defendant was simply trying to unreasonably delay the trial and engage in dilatory tactics. The court held instead that defendant was merely taking steps to deal with an attorney who was unprepared for trial. Thus, the district court ruling was affirmed and defendant’s conviction reversed.
• Right of Self Representation
U.S. v. Jones, 06-5551 (6/5/07)
> Defendant was convicted of numerous drug-related offenses and during a resentencing after appeal he requested to represent himself. Instead of ruling on defendant’s motion, the district court allowed defendant to make numerous pro se motions and arguments during the course of the sentencing proceedings, and also heard and ruled on motions and arguments from defendant’s appointed counsel. On appeal, defendant argued that his right to self representation had been violated.
* Holding: The court found no violation of defendant’s right to self representation. Although the district court may technically have erred in not ruling on defendant’s motion for self representation, because defendant had a full and fair opportunity to present his pro se arguments, and none of defendant’s arguments were at odds with the presentations made by his attorney, no Sixth Amendment violation occurred.
• Right of Self Representation
Moore v. Haviland, 07-3380 (7/15/08)
> Defendant was charged with state offenses and during the course of his trial he notified the trial court that he wanted to represent himself. The court warned defendant that it was a bad idea, and required defendant to put his plan to represent himself in writing. The trial proceeded and the court did not review defendant’s letter until after defendant testified. The court took no further action on defendant’s request, but instead let defendant’s counsel represent him through the end of the trial. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition. The district court granted the petition, finding that defendant’s right to self representation was violated. The state appealed.
* Holding: The court found that defendant clearly expressed a desire to represent himself, both orally and in writing to the trial court. Under those circumstances, the trial court should have inquired, as required by Faretta, whether defendant’s waiver of counsel was knowing, intelligent, and voluntary. The court found that the trial court failed in this regard. Further, the court dismissed the state’s contention that defendant’s request was untimely, because defendant raised his request as soon as his dissatisfaction with trial counsel’s performance arose. Accordingly, the district court’s ruling granting the writ was affirmed.
• Right to Hire Counsel of Choice
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged in an insurance fraud scheme and the government obtained a restraining order under 21 U.S.C. § 853(e)(1) to prevent defendant from spending approximately $104 million in assets. Defendant challenged the freezing of the assets on appeal because it prohibited him from hiring counsel of his choice.
* Holding: A district court may freeze assets prior to trial as long as they are restrained based upon a finding of probable cause that the assets are subject to forfeiture. Answering an open question in the Sixth Circuit, the court held that the district court may rely solely on the allegations in a forfeiture count in an indictment (reflecting a grand jury finding of probable cause) unless the defendant can (1) demonstrate that she has no assets, and (2) make a prima facie showing that the grand jury erred in concluding that the assets were proceeds traceable to the commission of the offense. If the defendant can make such a showing, then the district court must hold a hearing wherein it requires the government to establish probable cause that the restrained assets are traceable to the underlying offense. The court found that these procedures had been met in the case, and affirmed the district court ruling.
• Right to Counsel of Choice
U.S. v. Mooneyham, 04-5189 (1/9/07)
> Defendant was charged in a drug conspiracy and his first trial ended in a mistrial. Four days before defendant’s retrial was set to begin, defendant’s appointed counsel moved to withdraw, at defendant’s request, because defendant wanted to hire new counsel. Defendant’s only complaint with his appointed attorney was that he had not been able to review all of the discovery. The district court denied the request to withdraw the appointed attorney and a request for a continuance. The retrial proceeded, defendant was convicted, and he appealed.
* Holding: An indigent defendant has no right to have any particular attorney represent him and therefore must demonstrate “good cause” in order to obtain a substitution of counsel. In assessing whether “good cause” has been shown, the court considers the timeliness of the motion, the adequacy of the district court’s inquiry into the matter, and whether the conflict rose to the level of a complete lack of communication that would prevent an adequate defense. The court found that defendant filed the motion just four days before the retrial, the district court made an adequate inquiry, and defendant had not shown any actual deficiency on counsel’s part. Accordingly, the district court ruling was affirmed.
• Right to Counsel of Choice
U.S. v. Swafford, 06-5878 (1/17/08)
> Defendant was charged with conspiracy and substantive distribution counts for selling iodine, knowing that it would be used in the manufacture of meth. Prior to trial, the government moved to disqualify defendant’s counsel based upon a conflict of interest. One of defendant’s proposed defenses was that he acted on the advice of counsel, the advice coming from an attorney with the same firm as the attorney representing defendant at trial. In an effort to avoid disqualification of his counsel, defendant offered to waive the advice-of-counsel defense. The district court nevertheless granted the disqualification, finding that evidence introduced by the government at trial might cause defendant to testify, which, in turn, may implicate the conflict of interest with the law firm. Upon his conviction, defendant appealed.
* Holding: Defendants enjoy a Sixth Amendment right to hire their own counsel of choice, but this must be balanced against “the court’s interest in the integrity of the proceedings and the public’s interest in the proper administration of justice.” In the case, the court held that the district court properly considered its obligation to serve justice by disqualifying defendant’s counsel. The potential that developments could arise during trial that would cause a conflict with defendant’s counsel were sufficient support the disqualification, even if the defense could not foresee those developments prior to trial. Accordingly, defendant’s conviction was affirmed.
• Right to Counsel
U.S. v. Sullivan, 03-6329 (12/20/05)
> Defendant went to trial on multiple bank robbery and firearm counts and, on the fifth day of trial, moved for a new attorney. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: In reviewing a motion for new counsel, the district court must consider (1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict and whether it resulted in a total lack of communication preventing an adequate defense, and (4) the public’s interest in the prompt and efficient administration of justice. The court held that defendant’s motion, filed mid-trial, was not timely, that the court had adequately inquired into the matter, that there was no complete breakdown in communication, and that the public’s interest would not have been served by a continuance and appointment of new counsel. Accordingly, the conviction was affirmed.
• Right to Counsel
King v. Bobby, 04-3844 (1/10/06)
> Defendant was charged in state court with multiple fraud and tax related counts and during the course of proceedings before the state court, defendant continuously promised that he would hire counsel, and when he finally did hire counsel, the attorney moved to withdraw multiple times, with defendant eventually firing him right before the trial date. The trial court informed defendant that it believed that he was intentionally trying to delay the proceedings through his antics with attorneys and that defendant would either have to keep his current attorney, hire a new one, or represent himself, but there would be no more continuances. Defendant ended up representing himself, signed waiver of counsel forms, and took a plea bargain. Defendant appealed through the state court system, then filed a habeas petition in the district court claiming that he was denied counsel. The district court denied the petition and defendant appealed.
* Holding: In order for a defendant to proceed pro se, the record must establish that defendant was aware of the risks associated with self-representation, and that the defendant knowingly, intelligently, and voluntarily waived his right to counsel. Finding the case to be atypical, the court ruled that defendant had necessarily chosen self-representation by rejecting all of his options except for self-representation. In the end, the court held that the totality of the record established that defendant understood the risks associated with representing himself and made the knowing and voluntary decision to proceed pro se. Accordingly, the district court decision was affirmed.
• Right to Counsel
U.S. v. Chambers, 02-5865 (3/23/06)
> Defendant was charged with child pornography and child sex abuse. Prior to trial, defendant moved the district court to appoint him new counsel, citing primarily that his attorney was not providing him access to discovery. The district court denied the request for new counsel and insisted that the trial go forward on schedule. Defendant was convicted of all counts and sentenced to life. Defendant appealed.
* Holding: In reviewing a district court ruling on a motion to withdraw counsel, the court considers (1) the timeliness of the motion, (2) the adequacy of the district court’s inquiry into the matter, (3) the extent of conflict between attorney and client, and (4) the balancing of the public interest in the prompt and efficient administration of justice. Given that the discovery process had taken over a year, defendant was moving for new counsel shortly before trial, and counsel had provided all discovery to defendant that could legally be provided in the jail, the court found that the denial of new counsel was appropriate. Accordingly the conviction was affirmed.
• Right to Counsel
Daniels v. Lafler, 05-1846 (9/5/07)
> Defendant and three others were charged in state court with murder for burning down a house, thus killing three people. At a pretrial motion hearing, defendant’s appointed attorney appeared, but had not timely filed an intended motion to suppress evidence. None of the codefendants’ attorneys appeared for the hearing. The trial judge decided to remove all four attorneys from the case, and appoint attorneys who could be ready to try the case on the court’s schedule. Defendant’s subsequently appointed attorney pursued four motions in defendant’s behalf and represented him at trial. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition claiming that his Sixth Amendment right to counsel was violated. The district court denied the petition and defendant appealed.
* Holding: The Sixth Amendment provides two essential rights regarding attorney representation: the right to effective counsel, and the right to choose one’s own counsel. In the case, defendant did not claim any prejudice as a result of the replacement of his first attorney, therefore his right to effective counsel was not implicated. Regarding the right to choose one’s attorney, the court held that such a right applies only to privately retained counsel, not to appointed counsel. Thus, defendant could not challenge the replacement of his court appointed attorney unless he could show that the new attorney provided ineffective representation. Accordingly, defendant’s conviction was affirmed.
• Right to Counsel
U.S. v. Brock, 05-6621 (9/6/07)
> Defendant was charged with a Hobbs Act conspiracy and illegally distributing information about an incendiary device. Prior to trial, the government notified the court that defendant’s retained counsel represented both defendant and a codefendant, and that the government suspected that one of the two may desire to plead guilty and testify against the other. In spite of defendant and the codefendant both indicating that they were aware of no conflict and that they waived any conflict that existed, the district court disqualified counsel from representing defendant and the codefendant. Defendant was convicted after trial, and argued on appeal that his Sixth Amendment right to counsel of his own choosing had been violated.
* Holding: The court held that a defendant’s right to counsel of his own choosing is limited by Fed. R. Crim. P. 44(c)(2), which provides “substantial latitude” to the district court in determining whether a conflict of interest warrants separate counsel for codefendants. The court found that the district court did not abuse its latitude under Rule 44 in determining that a conflict of interest existed where the attorney was representing codefendants charged with conspiring in a common scheme. Further, the court held that defendant’s waiver of the conflict may not have been knowing and intelligent because defendant indicated that he was not aware of any conflict, actual or potential, in his attorney’s representation of he and the codefendant. This disregard for the potential conflict may have shown a complete lack of understanding by defendant of the dangers posed by joint representation, and thus he could not knowingly waive the conflict. Thus, the disqualification of counsel was affirmed.
• Right to Counsel
U.S. v. McAuliffe, 06-3016 (6/22/07)
> Defendant was under investigation for arson and mail fraud, and hired an attorney to represent him in regard to the civil proceedings with the insurance company. During this time period, the government made undercover recordings of defendant with coconspirators. Although defendant did not challenge the evidence at trial, he argued on appeal that the tape recordings were made in violation of his right to counsel.
* Holding: The court held that defendant’s Sixth Amendment right to counsel did not require exclusion of the recordings for two reasons. First, defendant was not formally charged at the time the recordings were made. The Sixth Amendment right to counsel is not triggered until the initiation of adversarial judicial proceedings. Second, the Sixth Amendment is offense specific. Thus, because defendant’s attorney was hired only for civil proceedings, not potential criminal charges, defendant was not represented by counsel for Sixth Amendment purposes.
• Right to Counsel
Benitez v. U.S., 05-2484 (4/9/08)
> Defendant was convicted of conspiracy to distribute marijuana and to commit money laundering. At sentencing, defendant’s attorney, who was retained, advised the court that defendant fired him. Additionally, defendant stated that he did not want the attorney to represent him. The district court made no inquiry into the circumstances of the representation, but proceeded with the hearing with defendant representing himself. The court granted the government’s motion to reduce the sentence based upon defendant’s cooperation, and proceeded to determine the appropriate sentence. The court again asked defendant if he wished for the attorney to represent him and defendant asked if the court was going to sentence him anyway. The court responded affirmatively, and defendant agreed to let the attorney speak for him. The district court sentenced defendant to 120 months in prison. Defendant did not appeal, but subsequently filed a habeas petition claiming that he was denied his Sixth Amendment right to counsel. The district court denied the petition both on the grounds that it was untimely, and on the merits. Defendant appealed.
* Holding: Where a district court is notified of a defendant’s dissatisfaction with counsel, the court is under an “affirmative duty to inquire as to the source and nature of that dissatisfaction.” This is true regardless of whether the attorney was appointed or retained. In the case, the court found that defendant’s and his attorney’s statements to the district court were sufficient to trigger the court’s obligation to inquire regarding defendant’s dissatisfaction. Because the district court made no inquiry into the source or nature of the problem, defendant’s Sixth Amendment right to counsel was violated. Accordingly, the case was remanded for resentencing. Additionally, the court instructed the district court to determine whether the untimeliness of the habeas filing was excused by the doctrine of equitable tolling.
• Right to Counsel - Critical Stages
Van v. Jones, 04-2277 (1/16/07)
> Defendant was charged in Michigan state court with assault with intent to commit murder. Prior to trial, the state moved to consolidate defendant’s case with three codefendants who were charged with various offenses arising out of the same incident. The state court held a “consolidation hearing” at which defendant’s counsel did not appear. After hearing argument from the codefendants’ attorneys and the prosecutor, the court consolidated the cases. Defendant was subsequently convicted after jury trial. Defendant lost his state court appeals and filed a federal habeas petition arguing that his Sixth Amendment right to counsel had been violated because he had been denied counsel at the “consolidation hearing.” The district court denied the petition and defendant appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court held that the “consolidation hearing” under Michigan law was not a critical stage in the proceedings such that the complete denial of counsel at such a proceeding required reversal of the conviction. Accordingly, the district court ruling was affirmed.
• Right to Counsel - Critical Stages
Hereford v. Warren, 07-1507 (8/7/08)
> Defendant was charged in state court with robbery. At the bench trial, the state called a codefendant to testify against defendant. The codefendant requested to speak to his counsel before testifying, so the court called a recess. During the break, the prosecutor had an ex parte conversation with the court. The prosecutor stated that he and the detective spoke to the codefendant in the hall, and that the codefendant did not understand his rights due to his mental problems. The prosecutor suggested that the codefendant be allowed to talk to his mother, which the court approved. The codefendant subsequently testified, and during cross examination he denied that he had talked to the police leading up to the trial. Defendant was convicted by the trial judge, and he lost his state court appeal. Defendant filed a federal habeas petition. The district court granted the petition and held that the ex parte conference violated defendant’s right to counsel. The state appealed.
* Holding: Complete denial of counsel at a critical stage in a criminal proceeding is a structural error, pursuant to the Supreme Court’s decision in Cronic, which requires reversal of a conviction. In order to determine whether a proceeding is a critical stage, the court considers the “likelihood that significant consequences might have resulted from the absence of counsel at the stage of the criminal proceedings.” In the case, the court found that the “brief, administrative discussion” between the trial judge and prosecutor was not the type of proceeding that would significantly prejudice defendant. Thus, the court found that the error was not structural, and did not require automatic reversal. Further, the court held that the error was harmless. Accordingly, defendant’s conviction was affirmed.
• Right to Counsel
U.S. v. Vasquez, 07-1248 (3/23/09)
> Defendant was charged with drug trafficking and he moved for substitute counsel one week before trial, and repeated his request several times throughout the trial proceedings. On each occasion, defense counsel responded to defendant’s allegations and explained that their differences were based on defendant’s unwillingness to work with counsel. The district court denied all requests for new counsel, and defendant was convicted. Defendant appealed.
* Holding: The court considers four factors in determining whether the denial of substitute appointed counsel is appropriate: (1) the timeliness of the defendant’s motion; (2) the adequacy of the district court’s inquiry into the matter; (3) the extent of the conflict and whether it was so great that it “resulted in a total lack of communication preventing an adequate defense”; and (4) balancing of the public’s interest in the prompt administration of justice. The court found that defendant’s request was belated, that the district court adequately inquired into the matter, that the attorney-client relationship was not completely broken down, and that a last minute continuance was not in the interest of the speedy administration of justice, particularly given that defendant had fled prosecution for four years prior to trial. Accordingly, the district court’s ruling was affirmed.
• Right to Counsel - Petition for Certiorari
Nichols v. U.S., 05-6452 (4/29/09)
> Defendant was convicted of bank robbery. At the sentencing hearing, which occurred after the Supreme Court’s decision in Apprendi, the district court applied several guideline enhancements that were based purely on judge-found facts. Defendant objected to the enhancements, but did not argue that the guideline enhancements would violate the Sixth Amendment because they were not submitted to the jury. The district court overruled the objections and sentenced defendant to 405 months in prison, a sentence within the then-mandatory guideline range. Defendant filed an appeal, but raised no issue regarding the guideline enhancements. After Booker was decided, defendant then filed a habeas petition claiming that his counsel was ineffective for failing to anticipate Booker and for failing to file for certiorari in the Supreme Court. The district court denied the petition, but the original Sixth Circuit panel found defendant’s counsel ineffective for failing to anticipate the Booker issue and pursue the matter on appeal. (See P.V. Issue #15). The en banc court granted rehearing.
* Holding: The court held that defendant’s counsel was not ineffective for failing anticipate Booker and pursue certiorari in the Supreme Court because a defendant has no right to counsel on a petition for review in the Supreme Court. Accordingly, the original panel ruling was reversed, and defendant’s sentence was affirmed.