     12-4382
     United States v. Murdock

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 29th day of October, two thousand thirteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               12-4382
16
17       SETH MURDOCK,
18                Defendant-Appellant,
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        THEODORE S. GREEN, Green &
22                                             Willstatter, White Plains, New
23                                             York.
24
25                                             SETH MURDOCK, appearing pro se,
26                                             Bruceton Mills, West Virginia.
27


                                                  1
 1   FOR APPELLEES:                 GREGORY L. WAPLES (Paul J. Van de
 2                                  Graaf, on brief), for Tristram
 3                                  J. Coffin, United States
 4                                  Attorney for the District of
 5                                  Vermont, Burlington, Vermont.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the District of Vermont (Sessions, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED as to all parts, without prejudice to renewing his
13   ineffective assistance of counsel claim on collateral
14   review.
15
16        Seth Murdock appeals from a judgment of the United
17   States District Court for the District of Vermont (Sessions,
18   J.), following a guilty plea to one count of interstate
19   transportation of stolen motor vehicles, in violation of 18
20   U.S.C. § 2312. Murdock was sentenced to 30 months of
21   imprisonment, followed by 36 months of supervised release,
22   and restitution in the amount of $30,694.26. On appeal,
23   Murdock argues: 1) the district court improperly denied his
24   motion to substitute counsel; 2) the amount of restitution
25   was improperly calculated; and, 3) his right to legal
26   representation was denied because of an undisclosed conflict
27   of interest. We assume the parties’ familiarity with the
28   underlying facts, the procedural history, and the issues
29   presented for review.
30
31   1.   Substitution of Counsel
32
33        We review a district court’s decision not to substitute
34   counsel for abuse of discretion. See United States v.
35   Simeonov, 252 F.3d 238, 241 (2d Cir. 2001). “To determine
36   whether the trial court abused its discretion, we consider:
37   (1) the timeliness of defendant’s request for new counsel;
38   (2) the adequacy of the trial court’s inquiry into the
39   matter; (3) whether the conflict resulted in a total lack of
40   communication between the defendant and his attorney; and
41   (4) whether the defendant’s own conduct contributed to the
42   communication breakdown.” United States v. Carreto, 583
43   F.3d 152, 158 (2d Cir. 2009).
44
45        Murdock withdrew his timely motion to substitute
46   counsel. The court offered to change Murdock’s counsel, but
47   Murdock rejected the offer to avoid delaying his trial. The

                                      2
 1   court then warned Murdock it would be unlikely to substitute
 2   counsel later as trial approached. Despite this warning,
 3   Murdock renewed the motion less than a month before trial.
 4   The court thoroughly inquired into the reasons for Murdock’s
 5   dissatisfaction with his counsel, but denied the motion.
 6   Sympathetic to Murdock’s concerns, however, the court
 7   permitted Murdock to obtain a second opinion from the lawyer
 8   he preferred. Thereafter, during the plea colloquy and
 9   sentencing, Murdock never expressed concern with his
10   attorney’s performance. Under these circumstances, the
11   district court did not abuse its discretion. We therefore
12   need not address whether Murdock abandoned his right to seek
13   a replacement.
14
15   2.   The Restitution Award
16
17        We review a restitution order for abuse of discretion.
18   United States v. Marino, 654 F.3d 310, 316 (2d Cir. 2011).
19   “We review the district court’s legal conclusions de novo,
20   and its factual findings for clear error.” Id. We will
21   uphold an award of restitution if the district court is able
22   to estimate the amount of the victim’s losses with some
23   reasonable certainty. See United States v. Gushlak, 728
24   F.3d 184, 196 (2d Cir. 2013) (the Mandatory Victims
25   Restitution Act “requires only a reasonable approximation of
26   losses supported by a sound methodology”). The district
27   court held a hearing at which the victim testified about his
28   losses. The court credited the victim’s testimony based on
29   his twenty-five years of experience managing a bus fleet.
30   Furthermore, he had first-hand knowledge of the work needed
31   to repair and maintain the stolen buses. The district court
32   did not abuse its discretion in basing restitution on this
33   testimony.
34
35   3.   Attorney Conflict of Interest
36
37        With respect to Murdock’s ineffective assistance of
38   counsel claim, this Court has generally been disinclined to
39   entertain such claims on direct review. See United States
40   v. Gaskin, 364 F.3d 438, 467-68 (2d Cir. 2004). The better
41   course is for Murdock to pursue this claim through a
42   collateral habeas proceeding under 28 U.S.C. § 2255, should
43   Murdock wish to proceed in that manner. Accordingly, we
44   therefore dismiss this claim without prejudice to its being
45   renewed in a timely habeas petition. See United States v.
46   Doe, 365 F.3d 150, 152 (2d Cir. 2004).
47

                                  3
 1        For the foregoing reasons, the judgment of the district
 2   court is AFFIRMED as to all parts, without prejudice to
 3   Murdock renewing his ineffective assistance of counsel claim
 4   on collateral review.
 5
 6
 7                              FOR THE COURT:
 8                              CATHERINE O’HAGAN WOLFE, CLERK
 9
10
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