                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-7419


UNITED STATES OF AMERICA,

                Petitioner – Appellee,

           v.

THOMAS BLACKLEDGE,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Dever III,
Chief District Judge. (5:09-hc-02118-D-JG)


Argued:   January 30, 2014                 Decided:   May 5, 2014


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Vacated and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Judge Keenan joined. Judge Shedd
wrote a dissenting opinion.


ARGUED: Richard Croutharmel, Raleigh, North Carolina, for
Appellant.     Denise Walker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.        ON BRIEF:
Thomas G. Walker, United States Attorney, Rudy A. Renfer, Edward
D. Gray, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
GREGORY, Circuit Judge:

      Respondent-Appellant        Thomas       Blackledge       has    been     civilly

committed as a sexually dangerous person under the Adam Walsh

Child   Protection      and   Safety     Act    of    2006    (“Adam    Walsh    Act”),

codified at 18 U.S.C. §§ 4247-48.                    Prior to a hearing on his

commitment, Blackledge successfully moved for the appointment of

an expert forensic examiner, who opined that he was indeed a

sexually      dangerous       person.          Blackledge       then     sought     the

appointment of a second expert and an extension of the deadline

for discovery.       A magistrate judge denied both motions without

prejudice,     and   when     counsel     renewed       the    motions    after     the

discovery deadline had passed, the motions were again denied.

Citing an internal ethical conflict, Blackledge’s attorney later

moved to withdraw as counsel, which the magistrate judge denied.

Counsel appealed the ruling to the district court and filed a

second motion to withdraw, this time also noting that Blackledge

had   filed   a   bar   complaint       against      her.     The     district    court

denied both the appeal of the magistrate judge’s ruling and the

second motion to withdraw.

      On appeal, Blackledge challenges the denial of the motions

to extend and reopen the discovery period, motions to withdraw

as counsel, and motions to appoint a second expert.                       Because we

find that the district court abused its discretion in denying

the motions to withdraw as counsel, we vacate and remand.

                                          2
                                                 I.

       As    relevant      to    these      proceedings,           we   briefly     summarize

Blackledge’s criminal history. 1                      In 1960, at age 15, Blackledge

was convicted of first-degree murder in Wyoming for bludgeoning

his    15-year-old        girlfriend        to       death    after     she    rebuffed      his

sexual advances.               He was sentenced to life imprisonment, but

released at age 23 after serving 8 years in state prison.                                     On

October 22, 1986, Blackledge was sentenced in the United States

District      Court    for      the   District         of    Colorado     to   12   years     of

imprisonment        and    5    years      of    probation        for   several     counts   of

mailing and producing child pornography.                           For the same conduct,

he    was    also   sentenced         to    20    years’      imprisonment        for   sexual

exploitation of children in Larimer County, Colorado and in Weld

County, Colorado, to run concurrently with his federal sentence.

Blackledge      also      self-reported          several      undetected       incidents     of

child       molestation,        involving        between      eight     and    twelve      child

victims ranging from age 5 to age 17.

       Following his release, Blackledge violated the terms of his

probation      by   possessing        images          of   nude    children    on    his    home

computer.       He was consequently sentenced on April 27, 2005 to 6

       1
       The following pertinent factual findings are not disputed
except as otherwise noted, and to the extent that there is a
dispute, we construe the evidence in the light most favorable to
the Government as the prevailing party before the district
court. See United States v. Antone, 742 F.3d 151, 155 n.1 (4th
Cir. 2014).


                                                 3
years’ imprisonment by the United States District Court for the

District    of     Colorado.            He     was      also    sentenced       to     6    years’

imprisonment in Weld County, Colorado on May 3, 2004 for one

count of sexual exploitation, to run concurrent with the federal

sentence     for     the      probation            violation.          Blackledge          had     an

expected release date of September 23, 2009.                              On September 15,

2009,     however,      the      Government            filed     a    Certification          of     a

Sexually     Dangerous        Person          (“Certification”)           pursuant         to      18

U.S.C. § 4248(a) in the United States District Court for the

Eastern District of North Carolina, and his release was stayed.

     The court appointed the Federal Public Defender’s Office to

represent       Blackledge,           and     on       March    11,    2011,     Sonya       Allen

(“Attorney Allen”) entered an appearance on Blackledge’s behalf.

Attorney     Allen      moved         for     the       appointment      of     Dr.    Terrence

Campbell    as     an   expert        forensic          examiner,      which    a     magistrate

judge granted on August 4, 2011.                         After interviewing Blackledge

and considering various materials, Dr. Campbell opined that he

was indeed a sexually dangerous person under the Adam Walsh Act.

     On     October        11,        2011,        Attorney      Allen       moved     for        the

appointment of a second expert, Dr. Joseph Plaud, and requested

an extension of the time for discovery.                               The magistrate judge

denied    the    motions         on    November          4,    2011    without        prejudice,

finding     that     Blackledge             failed      to     show    the     need    for        the

appointment of a second expert.                        The magistrate judge granted a

                                                   4
later request to extend discovery until December 22, 2011, and

the district court set a bench trial for June 14, 2012.                              On

April 17, 2012, two additional attorneys entered appearances as

Attorney Allen’s co-counsel, and the court continued the trial

until August 2, 2012.              On June 14, 2012, Attorney Allen filed a

sealed motion renewing Blackledge’s request to appoint Dr. Plaud

and asking the court to reopen discovery and continue the trial.

The magistrate judge denied the motions on July 2, 2012, finding

that    Blackledge         again    failed       to   show    good   cause    for   the

appointment of a second expert, and that appointment at that

stage would disrupt the court’s prior scheduling orders.

       On July 10, 2012, Attorney Allen filed a motion to withdraw

as counsel on the ground that an internal conflict had arisen

and    she       could    “no   longer   continue       to    ethically      represent”

Blackledge.          J.A. 80.       Speaking carefully to avoid violating

client confidences or revealing trial strategies, Attorney Allen

represented at a hearing on the motion that her internal ethical

conflict arose from the fact that Blackledge requested to see

certain items that she could not provide him.                        She added that

Blackledge wished to proceed with new counsel and that she had

located      a    panel    attorney    experienced       in   § 4248   hearings     who

could take over the matter immediately.                      Blackledge also stated

at the motions hearing that Attorney Allen had failed to provide



                                             5
him certain documents he requested, and that he felt ignored by

her, which made it very difficult for them to communicate.

       Blackledge complained in particular about Attorney Allen’s

failure to obtain a second expert, and Attorney Allen explained

that she did not renew the motion earlier because she thought

she had more time to do so.           While Attorney Allen asserted that

Dr. Plaud said only that it was possible that he would find

Blackledge not to be a sexually dangerous person, her co-counsel

represented that Dr. Plaud had preliminarily indicated that he

could testify favorably for Blackledge.             Attorney Allen asserted

that she had failed at allaying Blackledge’s concerns about his

defense, and that, as a result of her error, they no longer had

a rapport that allowed him to trust her.                  When asked if she

could represent Blackledge zealously if the motion were denied,

Attorney Allen stated that “it would be with great difficulty,”

though she is a professional and “would certainly do [her] job.”

J.A.    101.        She   opined   that     increasing    the    frequency    of

communications       would   not   repair   their   relationship      since   she

could not change her prior failure to timely renew the motion,

which was the content of the discussions.

       The magistrate judge denied the motion to withdraw, finding

that it was untimely and that there was no breakdown in the

attorney-client       communications        that    prevented    an    adequate

defense.       On    July    23,   2012,    Attorney     Allen   appealed     the

                                       6
magistrate judge’s ruling to the district court, and on July 30,

2012, she filed a second motion to withdraw.                           The second motion

asserted that Blackledge had filed a state bar grievance against

her, causing a conflict of interest where she could not defend

against the bar complaint while also representing Blackledge.

       The bench trial began on August 2, 2012, and the district

court first took up the appeal of the magistrate judge’s ruling

and the second motion to withdraw.                      Attorney Allen described her

relationship with Blackledge as follows:                         “our relationship has

deteriorated       to    a    point     that       we    cannot    discuss      his   case,

strategies    of    his       case.     We     cannot      effectively       communicate.

That has tied my hands with regard to being able to represent

him effectively.”             J.A. 148-49.              She continued: “One of the

essential    parts       of    defending       someone         would   be   whether       they

decide to testify or not and how you would go about preparing

them   for   that       testimony.        That’s         not    even   something      I    can

discuss with Mr. Blackledge, so we have not been able to address

that appropriately.”             J.A. 151.          Blackledge also explained to

the court that he had not “even really had any trial preparation

with [Attorney Allen]” and that he had not seen her “for quite

sometime     [sic].”          Id.      Attorney         Allen     added     that   the     bar

complaint had put her “at odds with” Blackledge.                          J.A. 149.

       The district court told Blackledge that he might have to

proceed    pro   se     if    the     motions      were    granted,       and   Blackledge

                                               7
stated that he would proceed with Attorney Allen if forced to

because    he    could    not    defend   himself.           The   court    denied       the

appeal and the second motion, finding that Attorney Allen had

not abandoned Blackledge as he claimed and that there was not a

breakdown       in    communications      that       would    prevent      an    adequate

defense.        Attorney Allen moved to bifurcate the trial so that

the available witnesses could testify, but Blackledge would be

allowed to later present an expert opinion from Dr. Plaud.                               The

court denied the motion to bifurcate, and the trial proceeded.

      At trial, the Government presented the testimony of two

expert witnesses, Dr. Christopher North and Dr. Campbell, and

the written report of a third expert witness, Dr. Tonya Cunic.

All   three      experts      diagnosed        Blackledge      with     pedophilia        —

sexually attracted to boys and girls, non-exclusive type — among

other psychiatric disorders.              All three experts concluded that

Blackledge      met    the    criteria    for    a    sexually      dangerous         person

under § 4248.         Blackledge did not testify or present evidence.

      On August 10, 2012, the court found by clear and convincing

evidence that Blackledge is a sexually dangerous person under

the   Adam    Walsh     Act     and   ordered    his    commitment.             The   court

specifically found that Blackledge engaged in child molestation

and   sexually        violent     conduct,      suffers      from     pedophilia         and

antisocial personality disorder, and, as a result, would have

serious difficulty refraining from reoffending.

                                           8
                                                   II.

     An    individual            in    the     custody         of    the     Federal       Bureau      of

Prisons may be civilly committed under § 4248 if the Government

proves in a hearing that the person is a sexually dangerous

person.     18 U.S.C. § 4248(d).                     The Government must prove each of

the following by clear and convincing evidence:                                     (1) the person

“has engaged or attempted to engage in sexually violent conduct

or child molestation” (“prior conduct” element); (2) the person

“suffers     from          a     serious          mental        illness,          abnormality,         or

disorder”    (“serious               mental       illness”       element);          and   (3)    “as    a

result    of”     such         condition,          the        person      “would      have      serious

difficulty in refraining from sexually violent conduct or child

molestation if released” (“volitional impairment” element).                                            18

U.S.C. §§ 4247(a)(5), (6), 4248.                              United States v. Hall, 664

F.3d 456, 458 (4th Cir. 2012).                           Blackledge has stipulated that

he engaged in sexually violent conduct or child molestation or

attempted    to       do       so,    and     that       he   suffers        from    pedophilia,        a

serious mental illness, abnormality, or disorder.                                          The trial

thus centered on whether he satisfies the volitional impairment

element.

     Blackledge            argues       on     appeal         that     the    court       abused    its

discretion       in        denying          his     motions          to    extend         and   reopen

discovery,       motions         to     withdraw          as     counsel,         and     motions      to

appoint    Dr.    Plaud.              We     hold     that      the       court     did    abuse    its

                                                     9
discretion in denying the motions to withdraw and remand for the

court      to     reconsider      these    motions      by    engaging   in    a     thorough

inquiry         as    to   the   extent   of    Attorney       Allen’s   conflict.          We

therefore need not address Blackledge’s remaining arguments.




                                               III.

                                                A.

       We review the denial of a motion to withdraw for abuse of

discretion.            United States v. Johnson, 114 F.3d 435, 442 (4th

Cir. 1997) (citing United States v. Mullen, 32 F.3d 891, 895

(4th       Cir.       1994)).      Blackledge         argues    that     Attorney      Allen

abandoned his case during the time in which she should have

renewed         the    motion     to    appoint       Dr.    Plaud,    and    thus    had   a

significant conflict presented by her interest in protecting her

own    professional          reputation        thereafter.         He    maintains      that

because he has a right to counsel under the Adam Walsh Act, 2 this

right necessarily includes a due process right to the effective

assistance of counsel.                 Blackledge asserts that the court abused

its discretion when it denied the motions because it forced him

to proceed with ineffective assistance of counsel.

       2
       “At a hearing ordered pursuant to [the Adam Walsh Act] the
person whose mental condition is the subject of the hearing
shall be represented by counsel and, if he is financially unable
to obtain adequate representation, counsel shall be appointed
for him pursuant to section 3006A.” 18 U.S.C. § 4247(d).


                                                10
     The Government argues in response that Blackledge was not

prejudiced      by   the   denial     of    the   motions          because        he   remained

represented by one of Attorney Allen’s co-counsel, 3 and because

Attorney Allen indicated that she was capable of representing

him despite her asserted internal ethical conflict and the bar

complaint, albeit with great difficulty.                         The Government further

argues that Attorney Allen ably represented Blackledge, filing

motions on his behalf during the time in which he says he was

abandoned and cross-examining the relevant witnesses at trial.

                                            B.

     In     deciding       whether     a    district         court       has      abused     its

discretion      in   denying    a    motion      to    withdraw         or   to    substitute

counsel,    we    consider     three       factors:          (1)    timeliness          of   the

motion; (2) adequacy of the court’s inquiry; and (3) “whether

the attorney/client conflict was so great that it had resulted

in total lack of communication preventing an adequate defense.”

United    States     v.    Gallop,    838    F.2d      105,       108   (4th      Cir.     1988)

(internal       citations      omitted).              If    the     court         abused     its

discretion, the ruling is subject to harmless error review.                                  See

United States v. Horton, 693 F.3d 463, 467 (4th Cir. 2012).                                  We

review    the    court’s    factual        findings        for    clear      error     and   its

legal conclusions de novo.             Hall, 664 F.3d at 462.                      “A finding

     3
       The second co-counsel, attorney Katherine Shea, withdrew
as co-counsel on July 24, 2012.


                                            11
is   ‘clearly           erroneous’    when      although    there     is    evidence      to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.”         Id. (internal citations omitted).

     Turning to the first factor, it appears that at least the

second motion to withdraw was untimely.                        Attorney Allen filed

the first motion on July 10, 2012, slightly more than three

weeks before            trial.    The     magistrate       judge    noted    the   court’s

difficulty         in    scheduling      hearings    so    that     all    the   necessary

witnesses could be available, and Blackledge acknowledged that

granting the motion would require another continuance so that

new counsel could prepare.                   Consistent with our prior holding

that a motion to substitute counsel filed two weeks before the

relevant hearing was timely, the initial motion to withdraw in

this case was likely timely.                 See United States v. Jennette, 387

F. App’x 303, 307 (4th Cir. 2010).                      However, the second motion

was filed on July 30, 2012, only three days before trial.                                 The

district court noted that it had a very busy trial calendar for

August and September, and that granting the motion at that point

would frustrate its scheduling orders.                        Although the district

court   was    certainly         on   notice     that    Attorney     Allen      wished   to

withdraw      as    counsel      after    the    first     motion    was    filed,   “[i]n

considering timeliness when a defendant requests substitution of

counsel, ‘the court is entitled to take into account the . . .

                                              12
public interest in proceeding on schedule.’”                Mullen, 32 F.3d at

895 (internal citations omitted).               As such, this factor weighs

somewhat in favor of the court’s ruling.

     Turning to the second factor, however, the record reveals

that the district court failed to engage in an adequate inquiry.

“When a defendant raises a seemingly substantial complaint about

counsel, the judge ‘has an obligation to inquire thoroughly into

the factual basis of defendant’s dissatisfaction.’”                    Id. at 896

(internal citations omitted).         “An inquiry into the reasons for

a   defendant’s     dissatisfaction        with    his    or    her    lawyer    is

necessary for the trial court to determine whether good cause

for substitution of counsel exists.”                 Id. (internal citations

omitted).     “The district court is far better situated than we

are to observe and inquire into the state of the relationship

between a defendant and his appointed counsel, and thus, where

the district court has met its ‘obligation to inquire thoroughly

into the factual basis of defendant’s dissatisfaction,’ . . . we

apply the ordinary standard of review to its factual findings:

clear error.”      United States v. Smith, 640 F.3d 580, 590 (4th

Cir. 2011) (citing Mullen, 32 F.3d at 896).                    While motions to

substitute counsel often arise at the defendant’s urging, when

the attorney also seeks to withdraw, the court must thoroughly

inquire    into   the   factual   basis    of     any   conflicts     asserted   by

counsel.

                                      13
      In   this       case,    the    district       court     did    not     meet     its

obligation      to     thoroughly     inquire        into    the     extent     of     the

communications breakdown or the basis of the asserted conflict.

Despite the representations from Attorney Allen and Blackledge

on   the   morning      of    trial   that    they    had     not    done     any    trial

preparation or spoken about whether Blackledge would testify,

the court did not ask when they had last seen each other or

communicated about the case. 4           Tasked with reviewing the motions

de novo, the district court erred in failing to examine how the

communications between Blackledge and Attorney Allen had fared

since the magistrate judge’s inquiry two weeks earlier.                                The

court emphasized Attorney Allen’s competence as a lawyer, but an

attorney’s      competence      cannot   cut     short       the    inquiry     because,

“[e]ven    if     a   defendant’s      counsel       is     competent,      a   serious

breakdown in communication can result in an inadequate defense.”

United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000).

      4
       Despite Attorney Allen’s assertion that she and Blackledge
could no longer effectively discuss his case, the dissent infers
that they were indeed able to communicate from the fact that she
filed proposed findings of fact and conclusions of law on July
26, 2012.    However, the fact that Attorney Allen filed this
pleading on Blackledge’s behalf does not establish that they
were actually able to communicate at this time, and indeed, such
an inference is undermined by the fact that she filed the second
motion to withdraw only four days later. Had the district court
followed the “best practice” of making “an express finding on
the record about the state of communication between defendant
and counsel,” Smith, 640 F.3d at 594, then perhaps this Court
would not be left wondering when Attorney Allen and Blackledge
had last meaningfully communicated about his defense.


                                         14
Most     significantly,            the     district         court       failed     entirely        to

inquire about the internal ethical conflict that Attorney Allen

had earlier raised and whether this had been resolved since the

first hearing.              The court’s failure to probe deeply into the

basis       of    Attorney     Allen’s         conflict          seriously       undermines       its

decision, and this factor weighs heavily against the court’s

ruling.

       Turning to the third factor, because the district court

failed       to      engage        in     an     adequate             inquiry,     its     factual

determination          that        there       was      not       a     total     breakdown        in

communication preventing an adequate defense is not entitled to

clear error review.                See Smith, 640 F.3d at 590.                       Even if we

were    to       review     this    finding       for      clear       error,     however,       this

factor likewise weighs against the district court’s ruling.

       Firstly, a conflict of interest emerged once Attorney Allen

failed to timely renew the motion to appoint Dr. Plaud before

the    discovery       deadline          passed.           We    find    useful     the    Supreme

Court’s decision in Maples v. Thomas, in which a post-conviction

petitioner’s attorneys abandoned their representation of him and

missed a critical deadline, thereby causing a procedural default

of    the    petitioner’s          claims.           132    S.Ct.       912,     916-25    (2012).

While       dicta,     the     Supreme          Court       found       in     Maples     that     “a

significant conflict of interest arose for the firm once the

crucial          deadline     passed”          because          “the    firm’s     interest       in

                                                 15
avoiding damage to its own reputation was at odds with [the

client’s]    strongest        argument”           for   excusing      the     procedural

default.    Id. at 925 n.8.

      In this case, we need not decide whether Attorney Allen

actually abandoned Blackledge as in Maples because a conflict

arose     from   the        fact     that     the       alleged      abandonment      was

Blackledge’s strongest argument for excusing the untimeliness of

the   renewed    motion.           Indeed,    we    recently      recognized     in   the

context of federal habeas proceedings that “a clear conflict of

interest    exists     in    requiring        . . .     counsel      to   identify    and

investigate potential errors that they themselves may have made

. . . .”    Gray v. Davis, 526 F. App’x 331, 334 (4th Cir. 2013).

This conflict exists irrespective of whether the attorney is

ultimately found to have erred.                See id. at 334-35.           Likewise, a

conflict    existed    here,        because,       in   order   to    argue    that   the

lateness of the renewed motion should be excused, Attorney Allen

would have had to assert her own ineffectiveness.                         This conflict

further    undermined       Blackledge’s          trust   in    Attorney      Allen   and

strained their ability to communicate. 5


      5
       As our dissenting colleague points out, the magistrate
judge asked Blackledge whether his dissatisfaction was largely
because of the court’s rulings denying Dr. Plaud’s appointment,
to which Blackledge replied that he had been “laboring under the
assumption” that Attorney Allen was in the process of obtaining
an expert until he learned that the request was “precluded by
the Court.” J.A. 107. Although the dissent cites this exchange
(Continued)
                                             16
    Secondly, in her second motion to withdraw, Attorney Allen

explained    that    Blackledge    had    recently   “indicated    that    he

intends to file a complaint with the North Carolina State Bar

against counsel because of her failure to obtain an expert in

his case, unless she removes herself from his case.”              J.A. 120.

As in Maples, this threat and the subsequent filing of a bar

complaint against Attorney Allen for her conduct thus put her

own professional interests directly at odds with those of her

client’s interests.        Certainly, not every bar complaint against

an attorney by her client will result in a conflict of interest,

and we have previously expressed our unwillingness to “invite

[those] anxious to rid themselves of unwanted lawyers to queue

up at the doors of bar disciplinary committees on the eve of

trial.”     United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.

1993).    However,    in    this   case,    Blackledge   threatened       and

ultimately submitted a seemingly non-frivolous grievance against

Attorney Allen that forced her to choose between protecting her

own reputation and arguing in her client’s best interest that




in order to suggest that Blackledge’s conflict with his lawyer
was  really   only   a  grievance   with  the   court’s rulings,
Blackledge’s response actually demonstrates that Attorney Allen
had failed to effectively communicate with him regarding her
efforts to have Dr. Plaud appointed, thereby leaving him with
the false assumption that the process was underway.


                                     17
Blackledge should not be made to bear the consequence of her own

errors in submitting the renewed motion to appoint Dr. Plaud.

       Thirdly, Attorney Allen also asserted an internal ethical

conflict, and because the district court failed to conduct an

adequate     inquiry,     it    is   unclear       if    this    conflict     was     ever

resolved prior to trial.             Moreover, the district court made no

inquiry whatsoever into the scope and nature of this conflict.

As a result, we have no way of knowing whether Attorney Allen’s

internal     ethical    conflict     was     indeed       so    significant    that    it

required her withdrawal as counsel.                 The fact that she told the

magistrate judge that she would represent Blackledge zealously

“with great difficulty” if the motion were denied, J.A. 101, is

of     little   help,     because,        having    been       made   aware     of    its

existence, the court had a sua sponte obligation to examine the

extent of this conflict.             See Mickens v. Taylor, 240 F.3d 348,

357-58 (4th Cir. 2001) (“[A] trial court must inquire into a

conflict of interest ‘when it knows or reasonably should know

that     a   particular        conflict     exists.’”)          (quoting    Cuyler     v.

Sullivan, 446 U.S. 335, 347 (1980)).                    Indeed, to the extent that

Attorney Allen did opine that she could continue to represent

Blackledge, this assertion cannot be isolated from her repeated

protestations that she could not do so ethically.

       Notwithstanding this lack of clarity as to the extent of

the     internal   ethical       conflict,         Attorney       Allen’s     delay    in

                                           18
renewing the motion to appoint Dr. Plaud and the bar complaint

against her, taken together, created a conflict of interest.                                As

such, we must consider whether the conflict resulted in a total

breakdown in communications preventing an adequate defense.                                 “A

total lack of communication is not required,” Johnson, 114 F.3d

at   443    (emphasis      added),      but    rather     our   concern       is    with    “a

‘breakdown’ of attorney-client communication so great that the

principal      purpose     of     the   appointment         —   the    mounting      of     an

adequate      defense      incident       to       a     fair   trial     —    has     been

frustrated.”      Smith, 640 F.3d at 588.

      The most telling evidence of the extent of the breakdown

and its impact on Blackledge’s defense is the assertion from

Attorney Allen and Blackledge on the morning of the trial that

they failed to engage in trial preparation or discuss whether

Blackledge would testify.               The dissent overstates the extent to

which Attorney Allen conferred with Blackledge about whether he

would      testify,   as    she    declined        the   court’s      offer    to    take    a

recess in order to do so, citing the fact that she had spoken

with him “just briefly” in deciding not to present any witnesses

or evidence.          J.A. 233.         In Jennette, we held that a court

abused its discretion in denying a motion to substitute counsel

prior to a sentencing hearing in light of the fact that both

counsel and the defendant “stated that they had not had a chance

to review the PSR together, and indeed had not really spoken

                                              19
since   the    trial       concluded,       certainly         a   fundamental          step    for

adequate representation at sentencing.”                       387 F. App’x at 307.

     In this case, Attorney Allen labored under a conflict of

interest that caused her communications with Blackledge to be so

broken that a “fundamental step for adequate representation” —

basic   trial        preparation       —    failed       to       occur.         As    we     have

previously noted, “it is the marriage of the attorney’s legal

knowledge      and    mature     judgment         with    the       defendant’s         factual

knowledge that makes for an adequate defense.”                             Smith, 640 F.3d

at 588.     In this case, because of the communications breakdown,

Blackledge     presented        no   evidence      or     testimony         in     proceedings

that,   like     a    sentencing       hearing,         often       turn     on       mitigating

evidence as to the respondent’s continued dangerousness.                                      This

factor therefore weighs against the court’s ruling.

     Weighing        all    three      Gallop      factors,          we     hold      that     the

district    court      abused    its       discretion.            The     second      motion    to

withdraw was untimely, as the district court found.                                     However,

the motions do not appear to be a “transparent plot to bring

about delay,” and “we have never found [untimeliness] a bar when

a substitution claim is otherwise meritorious.”                             Smith, 640 F.3d

at 596 (internal citations omitted).                     The district court failed

to perform an adequate inquiry here, but the record before us

nonetheless reveals that the above-discussed conflict resulted

in a communications breakdown that prevented Attorney Allen and

                                             20
Blackledge     from    mounting       an    adequate      defense.        As    such,   the

court abused its discretion in denying the motions to withdraw.

                                             C.

      A district court’s abuse of discretion in denying a motion

to   substitute       counsel    is     subject      to   harmless       error    review.

Horton, 693 F.3d at 467.                Although Horton does not explicitly

prescribe how to proceed with this harmlessness analysis, we

cited a Seventh Circuit case holding that a court’s error in

denying    a   motion    for     new       counsel   was       harmless    because      the

defendant had not shown that his counsel was constitutionally

ineffective     under     the    Sixth       Amendment.          Id.    (citing       United

States v. Wilks, 46 F.3d 640, 644 (7th Cir. 1995)).                             Blackledge

acknowledges      that    he     does       not   have     a    right     to     effective

assistance of counsel under the Sixth Amendment, and we need not

and do not decide here whether he has an analogous right under

the Due Process Clause.               However, even if we were to consider

whether the court’s error was harmless in light of our cases

applying the Sixth Amendment right to effective assistance of

counsel,   it   is     evident    that       Blackledge        was     harmed    by   being

forced to proceed with Attorney Allen as his counsel.

      In Horton, we assumed without deciding that the district

court abused its discretion since the court’s failure to conduct

any inquiry left us with an incomplete record upon which to

determine the extent of the communications breakdown and whether

                                             21
it prevented an adequate defense.            693 F.3d at 467.         Still, we

found that the error was harmless, noting that the defendant had

not   identified    “any   specific    way    in   which   his    defense    was

hampered by any lack of communication with his counsel,” and,

indeed Horton later indicated that he had an ample opportunity

to discuss his case with his lawyer, had done so, and was fully

satisfied    with   his    representation.         693   F.3d    at   467.    In

Blackledge’s case, however, his representation was undoubtedly

hampered by his lack of communication with Attorney Allen since

it prevented them from preparing for trial or discussing whether

he would testify, 6 and neither            Blackledge nor       Attorney Allen

indicated that their communications had improved.                The fact that

Attorney    Allen   cross-examined    the     Government’s      witnesses    and

moved for a directed verdict does not by itself mean that she

was fulfilling her obligations as counsel, especially in light

of her own vigorous claims that she would have great difficulty


      6
       The dissent questions that Blackledge could have had any
relevant testimony to offer on the ground that “resolution of
th[e]   [volitional  impairment]   element  depended  on   expert
testimony, not on Blackledge’s testimony.”    Dissenting Op., at
36 (emphasis in original).       However, as we have recently
explained, a respondent’s own testimony and the testimony of
those who have had sustained contact with him during his
incarceration may indeed be significant to the evaluation of
this element.    See Antone, 742 F.3d at 165-66.     Further, in
making this predictive judgment about Blackledge’s ability to
control his urges, the district court evidently did not find his
testimony to be as irrelevant as the dissent supposes since it
received his deposition testimony into evidence. J.A. 166.


                                      22
zealously representing Blackledge.                            See Smith, 640 F.3d at 589

(“Where a defendant’s communication with an appointed attorney

has    so       frayed     that    a    court           determines     the    mounting       of     an

adequate         defense    to     be       impossible,        the    defendant      is   neither

‘be[ing]         heard    by   counsel’           nor      receiving    ‘the       Assistance       of

Counsel for his defence.’”) (alteration in original).

       Further,       we    rejected            the     argument     that    the    denial     of    a

motion to substitute counsel was harmless in Jennette, where

defense counsel failed to go over the PSR with his client prior

to    the       sentencing     hearing,           despite      the    fact    that    the      court

actually reviewed the PSR with the defendant in open court.                                       387

F. App’x at 307-08.                “Although laudable,” we noted that “going

over the PSR with the district judge in open court can hardly be

said       to    substitute       for       a    private,      attorney-client-privileged

conversation with counsel before sentencing even begins.”                                         Id.

at 308.         Even if such an action could have rendered the court’s

abuse      of    discretion       harmless            in    Jennette,   there       was   no    such

attempt to cure the deficiencies in Blackledge’s representation

caused by the breakdown in communications, nor could there have

been    here      other     than       to       allow      conflict-free     counsel      to    take

Attorney Allen’s place. 7


       7
       Notably, while Attorney Allen had co-counsel, Attorney
Allen was the lead attorney and she alone represented Blackledge
at the trial on his commitment.


                                                      23
      In   total,    in   proceedings        that      could   result   in    lifelong

incarceration       for   a    person      who   has   already    served      his   full

sentence, Blackledge was forced to be represented by a lawyer

asserting multiple conflicts of interest with whom he had not

prepared for trial because of their inability to communicate.

We   cannot   conclude        that   the    court’s     abuse    of   discretion     in

requiring Attorney Allen to continue as counsel was harmless.

We therefore vacate the court’s judgment as to the motions to

withdraw and remand for the court to reconsider these motions

after engaging in the appropriate inquiry regarding the extent

of Attorney Allen’s conflicts.




                                           IV.

      For the foregoing reasons, we vacate the district court’s

judgment denying the motions to withdraw and remand for further

proceedings    consistent        with   this     opinion.        In   light    of   this

ruling, we need not consider at this time Blackledge’s remaining

arguments regarding the motions to reopen and extend discovery

and to appoint Dr. Plaud.

                                                               VACATED AND REMANDED




                                            24
SHEDD, Circuit Judge, dissenting:

       If the record supported the majority’s narrative that the

district     court     failed         to   investigate        Attorney      Sonya     Allen’s

asserted         conflicts       of    interest         and   forced       Blackledge        to

participate in the civil commitment hearing without meaningful

assistance of counsel, I would join the decision to vacate the

judgment. However, the record establishes quite the contrary.

       During two separate hearings, the magistrate judge and the

district judge thoroughly considered Attorney Allen’s motions to

withdraw     as     counsel,      both     of    which     were      untimely,      and    gave

Blackledge and Attorney Allen ample opportunity to address the

purported conflicts. After personally observing their in-court

interaction,        the    magistrate        judge      found       that   Blackledge       and

Attorney     Allen        were    able     to    communicate         adequately       in    his

defense; that finding – which was reviewed by the district judge

-     is   not    clearly        erroneous.          Moreover,      the    district       judge

explained why the purported conflicts did not prevent Attorney

Allen from representing Blackledge, and both judges recognized

the    prejudicial        impact      that      granting      the    withdrawal       motions

would have on the government and the administration of justice.

Further,     Attorney        Allen      fully     represented         Blackledge      at    the

commitment hearing, filing a prehearing brief, cross-examining

witnesses, conferring with him about whether he would testify or

present evidence, and making a closing argument.


                                                25
     Simply put, the district court did not abuse its discretion

in denying the withdrawal motions. Because the court committed

no discernible error, I dissent from the majority’s decision to

vacate the judgment.

                                         I

     I begin with an overview of pertinent aspects of the Adam

Walsh Child Protection and Safety Act, 18 U.S.C. § 4248. Enacted

in 2006, the Act is “a modest addition to a set of federal

prison-related mental-health statutes that have existed for many

decades,” 1   but   it   “differs      from   earlier     statutes   in   that    it

focuses directly upon persons who, due to a mental illness, are

sexually dangerous.” United States v. Comstock, 560 U.S. 126,

137, 141 (2010). The purpose of the Act is “to protect the

public from the dangers posed by releasing sexually dangerous

persons from federal custody,” United States v. Broncheau, 645

F.3d 676, 683 (4th Cir. 2011), and if the district court “finds

by clear and convincing evidence that the person is a sexually

dangerous     person,    the   court    shall    commit    the   person   to     the

custody of the Attorney General,” 18 U.S.C. § 4248(d) (emphasis

added).

     A    § 4248     hearing     is     “civil     in     nature,”    and      “the

constitutional rights to which a defendant in a criminal trial


     1
         See 18 U.S.C. §§ 4241-4246.


                                        26
is   entitled    do   not   adhere       to     [the]    respondent         in   [the]

commitment hearing.” United States v. Wood, 741 F.3d 417, 423

(4th Cir. 2013) (citation and internal quotation marks omitted).

Moreover, “[a]s compared to the goal of a criminal trial, the

goal of a commitment hearing is far different.” United States v.

Baker, 45 F.3d 837, 844 (4th Cir. 1995). The “basic issue” in a

criminal case “is a straightforward factual question — did the

accused commit the act alleged?” Addington v. Texas, 441 U.S.

418, 429 (1979). A criminal trial serves “to uncover the truth

by examining rigorously the reliability of conflicting evidence

presented and then engaging in extensive factfinding,” and the

“rights of cross-examination and confrontation, as well as the

right    to   effective   assistance       of    counsel,      are    all    directed

toward   this   goal.”    Baker,    45    F.3d    at    844.    In    contrast,   the

primary inquiry in a commitment hearing “involves a question

that is essentially medical,” Vitek v. Jones, 445 U.S. 480, 495

(1980), and it is based primarily upon the theoretical opinions

of experts, Baker, 45 F.3d at 845. “The aim of cross-examination

is changed accordingly: its goal is not to ‘poke holes’ in the

testimony of a witness, but to test the expert opinion given and

determine its basis and its limits.” Id.

     When the government initiates a § 4248 civil commitment

proceeding, the district court “may order that a psychiatric or

psychological    examination       of    the    defendant      be    conducted,    and

                                         27
that a psychiatric or psychological report be filed with the

court pursuant to the provisions of [18 U.S.C. §§] 4247(b) and

(c).” 18 U.S.C. § 4248(b). If the court finds more than one

examiner “appropriate,” it may appoint additional examiners. 18

U.S.C.    §    4247(b).       Each    examiner     is    designated    by    the   court,

except “upon the request of the defendant an additional examiner

may be selected by the defendant.” Id. Regardless of whether the

defendant selects the examiner, however, the § 4247(b) examiner

serves    as     an       “officer     of    the    court,      not   responsible      to

prosecution or defense,” In re Harmon, 425 F.2d 916, 918 (1st

Cir. 1970), and must file his report with the court and provide

copies to government and defense counsel, 18 U.S.C. § 4247(c). 2

     At       the        commitment    hearing,         the   defendant      “shall    be

represented         by    counsel     and,   if    he   is    financially     unable   to

obtain adequate representation, counsel shall be appointed for

him pursuant to § 3006A.” 18 U.S.C. § 4247(d). Additionally, the

defendant      “shall       be   afforded     an    opportunity       to    testify,   to

present evidence, to subpoena witnesses on his behalf, and to

     2
       A § 4247(b) examiner differs from an expert authorized
under 18 U.S.C. § 3006A. As one court has recognized, an
examination conducted by an order of the court “is conducted to
serve the court in a completely nonpartisan manner. . . . The
expert appointed under § 3006A, however, is not originally and
primarily an aide to the court, but rather is intended to serve
the interests of the defendant.” United States v. Chavis, 476
F.2d 1137, 1141-1142 (D.C. Cir. 1973); see also United States v.
Reason, 549 F.2d 309, 311 (4th Cir. 1977); United States v.
Taylor, 437 F.2d 371, 377 (4th Cir. 1971).


                                             28
confront and cross-examine witnesses who appear at the hearing.”

Id.

      To     civilly          commit        an      individual           under     § 4248,      the

government must prove by clear and convincing evidence that the

person:     (1)     engaged          in    or    attempted         to    engage    in     sexually

violent      conduct          or     child       molestation            (the    “prior    conduct

element”);         (2)        suffers        from       a     serious          mental     illness,

abnormality, or disorder (the “mental illness element”); and (3)

because of the serious mental illness, abnormality, or disorder,

would      have    serious          difficulty          in    refraining         from     sexually

violent conduct or child molestation if released (the “serious

difficulty element”). United States v. Francis, 686 F.3d 265,

274 (4th Cir. 2012).

      When a district court determines (as a preliminary factual

matter)     that        the    government         has       proven      the    “prior     conduct”

element, it must then consider the “mental illness” and “serious

difficulty”        elements.         These       latter      two     elements      “ensure     that

commitment is limited to inmates with a volitional impairment —

inmates whose mental illness renders them dangerous beyond their

control.” United States v. Wooden, 693 F.3d 440, 442 (4th Cir.

2012)      (citation           and        internal          quotation          marks     omitted).

Therefore,        the    court       must       evaluate      “the      individual’s       present

mental     condition          and    the     likely         prospective         effect    of   that

mental     condition          on    his    volitional         control;”         this    evaluation

                                                  29
depends       “on    the   significance        of    the   factual     information       as

viewed by the expert psychiatrists and psychologists.” Francis,

686    F.3d    at    275.    Compared      to      the   first   two     elements,      the

“serious difficulty” element is “more complicated” because “it

requires      the    court   to    issue       a    predictive    judgment:       has   the

Government met its burden by presenting clear and convincing

evidence that, in the uncertain future, the respondent will have

serious difficulty in refraining from sexually violent conduct

or child molestation?” United States v. Antone, 742 F.3d 151,

159    (4th    Cir.    2014)      (internal        quotation     marks    and     citation

omitted).

                                            II

       With this backdrop in mind, I now turn to the pertinent

facts. In my view, proper evaluation of the decision to deny the

withdrawal      motions      requires      a       complete    understanding       of   the

facts of this case, but many critical facts are not acknowledged

by the majority, and these facts tend to fatally undermine the

majority’s decision.

                                            A.

       Blackledge has a substantial criminal history, which spans

45    years    and    includes     a   conviction        for   first     degree   murder,

multiple        convictions        for      producing          and     mailing       child

pornography, a conviction for sexual exploitation of a minor,

and    a   probation       violation     for       possessing    child     pornography.

                                            30
Based on this record, the government filed a “Certificate of

Sexually Dangerous Person” against Blackledge in September 2009.

In June 2010, the district court appointed the Federal Public

Defender’s         Office       (“FPDO”)       to       represent         Blackledge.         Shortly

thereafter,        Blackledge         moved     to       dismiss         the    case.       The   court

denied      that     motion      in        January       2011.       Initially,         other     FPDO

attorneys       represented           Blackledge,             but    in     March       2011,      FPDO

Attorney Allen replaced those attorneys.

       Attorney Allen actively represented Blackledge in pretrial

matters.      As    one     of    her      discovery          efforts,         she    obtained       the

appointment         of    Dr.     Terence       Campbell            to    provide       a    forensic

evaluation      of       Blackledge        pursuant        to    § 4247(b).           Unfortunately

for Blackledge, Dr. Campbell concluded that Blackledge meets the

sexual      dangerousness             criteria          for     civil          commitment.        Upon

receiving      Dr.       Campbell’s         report,       Attorney        Allen       attempted       to

have    Dr.    Joseph       Plaud          appointed       as       an    additional         forensic

examiner, but the magistrate judge denied the motion without

prejudice based on his finding that Blackledge had failed to

establish      a    need    for       an    additional          court-appointed             examiner.

Blackledge did not appeal this order to the district judge. The

deadline for discovery was December 22, 2011.

       On     March      28,     2012,       the        district         judge       scheduled       the

commitment      hearing         for    June    14.       On     April     17,    FPDO       Attorneys

Katherine      Shea       and    Debra      Graves       formally         joined      the     case    to

                                                   31
represent Blackledge along with Attorney Allen. One month later,

on May 16, Blackledge moved to reschedule the June 14 hearing

based specifically, and only, on the fact that Attorneys Shea

and Graves were unavailable because of prior commitments. The

district judge granted this motion and rescheduled the trial for

August 2.

       On June 14, Blackledge filed a “renewed motion” to have Dr.

Plaud    appointed,         to   reopen   discovery,    and   to     reschedule    the

August 2 commitment hearing. Blackledge asserted that “securing

an expert to testify favorably . . . is of paramount importance

to    putting    on    an    adequate     defense.”    J.A.   306.    Opposing    this

motion, the government argued that Blackledge “has not shown a

need for a second additional examiner, aside from the stated

desire to secure an expert to testify favorably [for him]. Such

a    purpose     falls      outside     the    statutory    provisions    governing

court-appointed examiners in this proceeding.” J.A. 77. In a

subsequent       reply      memorandum    supporting    the   motion,    Blackledge

asserted that this is a “battle-of-the-experts case” and that

his    ability    to     defend    himself     would   be   prejudiced    without   a

favorable expert. J.A. 310.

       The magistrate judge denied this motion on July 2, finding

that it was untimely and that Blackledge failed to show that

appointment of Dr. Plaud was necessary. The magistrate judge

explained that Blackledge made “no representation that Dr. Plaud

                                              32
has reached a preliminary opinion that [he] does not qualify as

a sexually dangerous person or that the other evaluations under

§ 4248     are   somehow      flawed    based    on   a   review    of   the   records

without     a    clinical     interview.    Such      a   record    review     [by   Dr.

Plaud]     would     not      require      court      approval.”      J.A.     314-15.

Blackledge did not appeal this order to the district judge.

      On   July    10,   just    over    three     weeks    before    the    scheduled

trial date, Attorney Allen moved for an order allowing her and

the   entire      FPDO   to    withdraw.    In     the    motion,    Attorney    Allen

asserted without further explanation that “an internal conflict

has arisen and the undersigned can no longer ethically continue

to represent” Blackledge. J.A. 80. After the government filed a

memorandum opposing this motion, Attorney Allen filed a reply

memorandum, in which she stated: “To clarify the position of

Respondent, Mr. Blackledge personally wishes to proceed in this

matter with new counsel.” J.A. 86. Apart from this statement,

Attorney Allen offered no further explanation for the motion,

but she did ask for a hearing if the court desired additional

information.

      On July 17, Attorney Graves filed a notice that she had

withdrawn from the case. The notice contains no explanation for

her withdrawal.




                                           33
                                         B.

     On July 18, the magistrate judge held a hearing on the

withdrawal    motion.    The    hearing         lasted    almost   one    hour,    and

Attorneys     Allen,    Graves,      and      Shea     appeared    on    behalf     of

Blackledge.     See    J.A.    89.      The      magistrate     judge     began     by

confirming that Blackledge joined in the motion and was seeking

new counsel. The magistrate judge then asked Attorney Allen to

explain the “internal conflict” underlying the motion. Attorney

Allen responded that “there are some things that [Blackledge]

wants to see that I am not going to be able to help him with and

because of that there’s a conflict that we just will not be able

to resolve.” J.A. 91.

     After    Attorney     Allen     spoke,      the     magistrate    judge     placed

Blackledge under oath and asked him to explain his concerns.

Blackledge stated that he had trouble getting documents from his

attorneys and that he had “no confidence, or little confidence

left in, that they can provide the kind of defense I need.” J.A.

93. The magistrate judge asked Blackledge to elaborate on that

point, and Blackledge responded that it was “the fact that, just

in getting documents and so forth from home. You ask for a copy

and you never get any.” Id. When the magistrate judge asked what

documents     Blackledge      wanted,      he     responded     that     “it’s    very

difficult to reveal what it is without showing my hand.” J.A.

95. At this point, the magistrate judge paused the hearing in

                                         34
order to allow Attorney Allen and Blackledge to confer. Id. When

the     hearing     continued,      Blackledge          stated    that    although     he

initially         could     communicate          with      Attorney       Allen,      the

relationship had become “strained,” and it was “very difficult .

. . to talk to someone . . . you’ve lost confidence in. It’s

difficult to share, . . . if you think it’s going to be ignored,

or    you’re   given      short    shrift.”      J.A.    96.     In   response   to   the

magistrate judge’s question, Blackledge stated that his attorney

communication problems began “over six months ago.” Id. When

asked    why   he    did    not     raise     the   matter        sooner,   Blackledge

admitted that he “let things go and I think I let them go too

long in this case.” J.A. 97.

       At this point, the magistrate judge asked Attorney Allen

about possible replacement counsel. Attorney Allen stated that

she understood a private attorney would accept the case, but

that the attorney would not be prepared to go forward with the

August 2 hearing. The magistrate judge then paused the hearing

in order to permit Attorney Shea to confer with Blackledge. J.A.

99. When the hearing resumed, Attorney Allen stated that she

understood why Blackledge had lost confidence in her, but she

acknowledged        that     she     could       represent        him    “with     great

difficulty.” J.A. 101. The magistrate judge then spent some time

explaining to Blackledge the role of a lawyer, after which the

government attorney briefly stated the government’s position.

                                            35
     Following the government’s statement, Blackledge expressed

his concern that he did not have an adequate defense because he

did not have an expert witness who would testify on his behalf

at the hearing. Blackledge also alluded to “other matters” but

stated that he could not discuss them “because they are a part

of my defense that were mishandled.” J.A. 106. Blackledge then

stated that all he wanted was “a level playing field and a fair

shake and I don’t think I’m getting it the way things are now.”

Id. The magistrate judge observed that Blackledge’s complaint

was really about the orders denying Dr. Plaud’s appointment, to

which Blackledge responded that he had been “laboring under the

assumption”   that   Attorney      Allen   had    procured   a   new   expert

examiner for him, only to find out that another expert had been

“precluded    by   the   Court.”    J.A.   107.    The   magistrate    judge

explained that there was no basis under the circumstances for

Blackledge to have another court-appointed examiner.

     In response, Attorney Graves (who had previously withdrawn

from the case) stated that Dr. Plaud had given “a preliminary

determination . . . that he could potentially clear” Blackledge

for commitment. Id. Attorney Allen then admitted that she had

neglected to move for another expert to be appointed in a timely

manner, and she noted that this was “another conflict” and “one

of the reasons” for the withdrawal motion. J.A. 108. Attorney

Allen also stated that “[w]ith no expert, there’s very little

                                     36
reason     for    [Blackledge]       to   have     a    trial    and    he    understands

that.” J.A. 109. Finally, she acknowledged that Dr. Plaud was

not “totally committed” to finding in Blackledge’s favor but was

“willing to look at it.” Id.

      The magistrate judge raised the possibility of conducting

an ex parte hearing with Blackledge and Attorney Allen. J.A.

111. However, the magistrate judge asked Blackledge if he had

anything further to add regarding his relationship with Attorney

Allen, and Blackledge responded that he had adequately conveyed

his position. Id. With that concession, the magistrate judge

then announced his ruling from the bench.

      Denying the motion, the magistrate judge first found that

it   was     untimely.      As     the    magistrate          judge    explained:       “Mr.

Blackledge . . . states that he’s had concerns about his counsel

going back for months and yet this motion is filed in a matter

of   weeks       before   the      hearing    in    this      case.”    J.A.    113.     The

magistrate        judge     then     noted    the       difficulties         involved    in

scheduling commitment hearings and that a continuance would be

necessary if the motion was granted. Finally, the magistrate

judge stated that after considering the information presented,

he had a “full picture of the nature of the problem” between

Attorney Allen and Blackledge, and he did not believe that there

was a breakdown in communication that would prevent an adequate

defense.     J.A.    114.    In     support   of       this   point,    the    magistrate

                                             37
judge pointed out that Blackledge and Attorney Allen conferred

“at Mr. Blackledge’s initiation in court today.” Id.

                                          C.

     On    July    23,     Attorney       Allen       filed    an       appeal     of    the

magistrate    judge’s      order     denying      the       withdrawal        motion.     As

grounds    for     the     appeal,    Attorney         Allen       stated        that   the

magistrate    judge’s       order    is    “contrary          to    law,”      J.A.     119,

specifically Maples v. Thomas, 132 S.Ct. 912 (2012). 3 Although

Blackledge   had     not   cited     or   argued      Maples       to   the    magistrate

judge,    Attorney       Allen   argued        that     Maples        stands      for    the

proposition “that if court-appointed counsel in a civil habeas

case misses an important deadline, that counsel thereafter has

an irreparable conflict.” J.A. 119. Attorney Allen also stated

that she had met with Blackledge, and he informed her that he

“intend[ed] to file a complaint with the North Carolina State

Bar against counsel because of her failure to obtain an expert

in his case, unless she removes herself from his case.” J.A.

120. Attorney Allen acknowledged that allowing her to withdraw

would    disrupt   the     hearing    schedule        and     cause     the    government


     3
       In Maples, counsel appointed to represent a state habeas
petitioner abandoned the case without notice, thereby causing
the petitioner to miss a filing deadline. Because the petitioner
missed the deadline, his federal habeas claim was dismissed on
grounds of procedural default. The Supreme Court held that the
attorneys’ abandonment of the petitioner constituted sufficient
cause to excuse the default.


                                          38
“expense     and     inconvenience,”      but     she     maintained         that     the

government’s       interests    “cannot       trump    [Blackledge’s]         right    to

effective counsel.” Id.

      The following day, Attorney Shea filed a notice that she

had withdrawn from the case. As with Attorney Graves, the notice

contains no explanation for Attorney Shea’s withdrawal.

      On July 26, Blackledge sent a handwritten letter to the

district court stating that he had “written the bar association

to dismiss the team of Shea, Graves, and Allen” and that he was

“serious    about     wanting     new   blood    and    attentiveness         to     [his]

defence [sic].” J.A. 129 (emphasis in original). Blackledge did

not include a copy of his bar complaint with the letter, and he

provided no further explanation about it.

      That same day, Attorney Allen filed Blackledge’s proposed

findings    of     fact   and   conclusions     of     law.   Evidently,       she    had

discussed some aspects of the case with Blackledge because she

foreshadowed        his    expected     hearing        testimony,      stating        (in

predictive form) that he “denied possession and use of any drugs

while   incarcerated”       and    testified      “with       regard    to     the    sex

offender treatment and drug treatment he received in the past

and   his    prior    convictions       for    sexual    conduct,”          “about    his

conduct     while    incarcerated,”       and    “that    he     has    received       no

infractions of any nature, sexual or otherwise” during his time

at    FCI-Butner.     Respondent’s       Proposed       Findings       of    Fact      and

                                         39
Conclusions      of     Law,     No.    5:09-HC-2118-D-JG             (E.D.N.C.       July   26,

2012) (pages 14-15).

       On     July   30,    Attorney         Allen       filed   a    “second    motion”     to

withdraw as counsel. In this motion, she referenced Blackledge’s

complaint with the state bar and stated that she believed she

could no longer represent him.

       On July 31, the parties’ Second Amended Joint Proposed Pre-

Trial Order was filed. Attorney Allen signed the document on

Blackledge’s         behalf.     In     this       document,      Blackledge      stipulated

that    “he    has    engaged     in        or   attempted       to   engage     in   sexually

violent conduct or child molestation” and that “he suffers from

a serious mental illness, abnormality or disorder, specifically

pedophilia.” J.A. 137. Based on these stipulations regarding the

“prior conduct” and “mental illness” elements, Blackledge agreed

there    was     only      one   issue        to    be    decided     at   the    commitment

hearing:      i.e.,     whether        he    would       “have   serious    difficulty       in

refraining from sexually violent conduct or child molestation if

released.” J.A. 138. Among other things, the government listed

Blackledge as a potential witness, and it also designated his

deposition transcript as potential discovery material to be used

at the hearing.

                                                   D.

       On August 2, the parties appeared before the district judge

for the commitment hearing. As the hearing began, Attorney Allen

                                                   40
asked the district judge to consider the withdrawal issue. The

district judge responded that he had “read everything” and was

prepared to “listen to anything you would like to add.” J.A.

148.

       Attorney Allen stated that she had a conflict that could

not be resolved and that Blackledge “feels he cannot get proper

representation if [she] were to continue, and our relationship

has deteriorated to a point that we cannot discuss his case,

strategies of his case. We cannot effectively communicate.” J.A.

148-49. The district judge then asked Attorney Allen how her

ability to cross-examine the expert witnesses would be impacted

by     her   relationship   with   Blackledge.   Without   specifically

answering this question, Attorney Allen referred to the state

bar complaint, which she admitted she had not seen, and asserted

that “it has certainly affected my ability to feel as if I can

do everything in this case that is needed because I can’t even

effectively communicate with my client.” J.A. 149-50.

       The district judge noted that the case had been pending for

a considerable period and that he was “very familiar with the

record.” J.A. 150. Continuing, the district judge stated: “I

have listened to the hearing that [the magistrate judge] had on

the original motion to withdraw and I understand all the issues

associated with Dr. Plaud and the scheduling order.” Id. The

district      judge   observed     that   because    of    Blackledge’s

                                    41
stipulations, the case essentially boiled down to “an evaluation

fundamentally of the experts and their persuasiveness,” id., and

he pointed out (based on his prior case experience) that because

the   government     bore    the   burden     of    proof,     Blackledge     could

potentially      prevail    without    an    expert    witness.     The    district

judge asked Attorney Allen if she had anything else to add to

the   motion.     She   responded     that    she     had    not   been    able   to

“appropriately” address with Blackledge the issue of whether he

should testify. J.A. 151.

      At   the   district    judge’s    invitation      to    speak,      Blackledge

stated that he was “being given a short shrift” and that the

“playing field is not level.” Id. Blackledge also complained

generally about Attorney Allen’s alleged failure on his behalf

during discovery. Responding to a question from the district

judge, Blackledge stated that, if pushed to the choice, he would

rather be represented by Attorney Allen than proceed pro se.

      In denying the motions, the district judge began with a

thorough recitation of the history of the case. See J.A. 151-57.

The district judge specifically detailed the hearing before the

magistrate judge and the bases for the magistrate judge’s order

denying the first withdrawal motion. The district judge stated

that he had reviewed the magistrate judge’s order de novo and

had fully considered the second withdrawal motion.



                                       42
       The district judge found that the motions were untimely and

“[a]ny       further       delay       would        substantially            prejudice        the

government      and    .    .    .    the   public            interest.”     J.A.     159.    The

district judge explained that the trial dockets for the next

several months were full, indicating that the delay caused by

granting the motions would be lengthy.

       The district judge then found that a thorough inquiry had

been made into the issues. As the district judge explained, the

magistrate     judge       “thoroughly       engaged            in   an    inquiry    with    Mr.

Blackledge and Ms. Allen and the government,” and “[t]he issues

associated with Dr. Plaud have been exhaustively examined.” J.A.

160.

       The   district       judge      further       found       that      there    was   not     a

breakdown      between      Attorney        Allen         and    Blackledge        that   would

prevent an adequate defense. The district judge noted that the

government bore the burden of proof at the commitment hearing,

and    Attorney   Allen         was    prepared          to    cross-examine        the   expert

witnesses. Moreover, the district judge pointed out that the

government      “ha[d]      the       ability       to    call       Mr.   Blackledge        as   a

witness and had planned to . . . for some time.” J.A. 161. The

district      judge    also       explained         that        Maples     was     inapplicable

because Attorney Allen had not abandoned Blackledge. Finally,

the district judge observed that he had “looked into this whole

issue of a bar disciplinary grievance” – which was “an undefined

                                               43
grievance but apparently just a dissatisfaction with how the

case came out.” Id. The district judge explained that the bar

complaint     did    not   create       a    per   se    conflict,         and    neither

Blackledge     nor    Attorney         Allen     had    presented       any      specific

evidence to establish a conflict arising from the complaint.

      After the district judge ruled on the withdrawal motions,

Attorney     Allen   moved    to    bifurcate      the    commitment        hearing      to

allow Blackledge the “opportunity to be examined by Dr. Plaud”

and   “an    opportunity      to    possibly       present      a    defense      in    the

future.” J.A. 162. The government opposed the motion, and the

district     judge   denied      it,    explaining       that       “there’s     been   no

evidence that I have seen that [Dr. Plaud] would actually reach

a different conclusion, other than apparently just perhaps the

belief, to my knowledge, that he’s never found anyone in a 4248

case tried in the Eastern District of North Carolina subject to

civil commitment.” J.A. 163. The district judge also noted that

the motion was “inconsistent with the scheduling order and the

public interest.” J.A. 163-64.

      Thereafter, the commitment hearing proceeded on the merits.

During the hearing, two expert witnesses – Dr. Christopher North

and Dr. Terence Campbell – testified, and the forensic report of

a third expert witness – Dr. Tonya Cunic – was admitted into

evidence. Additionally, in lieu of calling Blackledge to the

stand   to    testify,     the     government       submitted        his    deposition.

                                            44
Receiving the deposition into evidence, the district judge noted

that “to the extent there was an issue associated with trial

preparation,       I   know     that    Mr.     Blackledge     appeared      at   that

deposition with counsel and was prepared for that deposition by

counsel.” J.A. 166. The district judge stated that this fact

“further mitigates issues associated with any prejudice on the

motion to withdraw.” Id.

      Attorney     Allen      vigorously        represented    Blackledge.        Among

other things, she cross-examined Drs. North and Campbell, see

J.A. 197-204, 220-33; conferred with Blackledge about whether he

was going to testify, see J.A. 233; unsuccessfully moved for

judgment as a matter of law, see J.A. 234; and presented a

closing     argument,     see    J.A.    241-45.        Ultimately,   the    district

judge      found   that       Blackledge        meets    the   § 4248     commitment

criteria. The district judge explained its reasoning in detail,

see   J.A.    247-86,     noting       (among    other     things)    that   he    read

Blackledge’s deposition testimony as part of his consideration

of the evidence, see J.A. 261-62.

                                          III

      On     appeal,    Blackledge       does     not    challenge    the    district

court’s finding that he meets the § 4248 criteria. Instead, he

bases his arguments on the court’s denial of Attorney Allen’s

withdrawal motions and his requests for the appointment of Dr.

Plaud as an additional examiner. Specifically, he contends: (1)

                                           45
based     on    Maples,     the   court   clearly      erred    in     finding      that

Attorney Allen had not abandoned him; (2) because Attorney Allen

abandoned him, the court abused its discretion by failing to

equitably toll the discovery deadline to allow him to seek the

appointment of Dr. Plaud; 4 (3) the court abused its discretion by

failing    to       allow   Attorney    Allen    to    withdraw       based    on   her

conflict       of   interest;     and   (4)    the    court    used    an     erroneous

standard and, therefore, abused its discretion by refusing to

grant his motion to appoint Dr. Plaud.

      The majority grounds its decision to vacate the judgment

only on the third issue, finding that the district court abused

its   discretion       in   denying     the    withdrawal      motions.       Before   I

address that issue, I believe that it is necessary to address

the issues involving Dr. Plaud, which appear to be the genesis

of Blackledge’s dissatisfaction with the proceedings below. As

noted, Blackledge and Attorney Allen have argued throughout the

case that he cannot avoid civil commitment without an expert

testifying in his favor. See, e.g., J.A. 109 (Attorney Allen

      4
       I would hold that the district judge correctly found that
Attorney Allen did not abandon Blackledge. Attorney Allen’s
representation of Blackledge is in no sense comparable to the
attorneys’ conduct in Maples. In any event, I would also hold
that the alleged abandonment did not prejudice Blackledge
because the magistrate judge denied the second motion for the
appointment of Dr. Plaud for two reasons, one of which was
Blackledge’s failure to demonstrate a need for the appointment.
That reason is independent of the question of the timeliness of
the motion, and it therefore moots the abandonment issue.


                                          46
stating that “[w]ith no expert, there’s very little reason for

[Blackledge]         to     have         a   trial      and       he     understands       that”).

Blackledge        emphasizes             this     point       most       succinctly      in     his

appellate brief:

       Blackledge had no experts to help him . . . and it
       seems highly probable that had he testified, his
       testimony would have failed to persuade the district
       court judge that he could refrain from further acts of
       sexual violence or child molestation. . . . In
       essence,   the   district  court   completely   denied
       Blackledge a defense when it refused to allow him the
       opportunity to pursue an additional expert forensic
       examiner.

Opening      Brief    of        Appellant,        at     34       (emphasis      added).      Given

Blackledge’s       view,        I    suspect      that    on       remand     this    issue    will

almost certainly come up again.

       In considering this issue, it is important to recall that

the district court granted Blackledge his § 4247(b) right to

select an examiner. Faced with an unfavorable diagnosis by his

chosen examiner, Blackledge sought to have Dr. Plaud appointed

in the hope that he would render a more favorable diagnosis.

Although      Blackledge’s               desire    to     have         an    examiner    testify

favorably      for        him       is    understandable,              nothing   in     § 4247(b)

suggests that he is entitled to select multiple court-appointed

examiners or, for that matter, to select an examiner who will

testify on his behalf. See generally Wilson v. Greene, 155 F.3d

396,   401    (4th    Cir.          1998)    (noting      that         due   process    “reflects

primarily     a    concern           with    ensuring         a    defendant      access      to   a

                                                  47
psychiatrist or psychologist, not with guaranteeing a particular

substantive result” (emphasis in original)). 5 Moreover, as the

magistrate judge and the district judge observed, Blackledge has

never presented any reason to suggest that Dr. Plaud will render

a favorable diagnosis. See generally Taylor, 437 F.2d at 376

(“Where        an   examination      has    been    conducted   so    recently      as   to

furnish a basis for a determination of present competence, there

is ordinarily no reason to order another.”).

       Although        I   believe   that    Blackledge’s       appellate       arguments

regarding Dr. Plaud likely fail on the merits, we need not reach

them. Both of Blackledge’s motions seeking the appointment of

Dr. Plaud were nondispositive, and they were referred to the

magistrate          judge.    Following        the    denial     of       the     motions,

Blackledge did not appeal either magistrate judge order to the

district judge.

       Rule 72(a) of the Federal Rules of Civil Procedure provides

that       a   party   may   serve    and    file    objections      to   a     magistrate

judge’s order on a nondispositive matter within 14 days after

being served with a copy, but the party “may not assign as error

a defect in the order not timely objected to.” By failing to

       5
       Blackledge’s position raises an obvious question: how many
examiners must the court appoint? Apparently, he would answer
that the court must appoint as many examiners as it takes until
one will testify in his favor. Otherwise, without such
testimony, any commitment hearing would be, in his view, unfair.
The absurdity of this position is self-evident.


                                             48
appeal    the   magistrate     judge     orders   to   the    district    judge,

Blackledge has waived appellate review of the orders denying his

motions to have Dr. Plaud appointed. See McDonald v. City of

Saint Paul, 679 F.3d 698, 709 (8th Cir. 2012). 6

                                         IV

     I now turn to the withdrawal issues. In deciding whether to

permit    court-appointed     counsel     to   withdraw,     or   to   substitute

court-appointed counsel on the defendant’s request, the district

court    must   be   guided   by   the   “interests    of    justice.”    See   18

U.S.C. § 3006A(c); Martel v. Clair, 132 S.Ct. 1276, 1285 (2012);

see also United States v. Perez, 661 F.3d 189, 191 (4th Cir.

2011) (using a “good cause” standard). This is a “peculiarly

context-specific inquiry” that is “so fact-specific [that] it

deserves deference.” Martel, 132 S.Ct. at 1287. We must accept

the court’s factual findings unless they are clearly erroneous,

see United States v. Keita, 742 F.3d 184, 188 (4th Cir. 2014),

and we may overturn a denial of a withdrawal motion only for an

abuse of discretion, Martel, 132 S.Ct. at 1287, bearing in mind

that “[t]he district court is far better situated than we are to

observe and inquire into the state of the relationship between a

     6
       Attorney Allen asked the district judge to bifurcate the
commitment hearing and asserted that bifurcation would allow Dr.
Plaud the opportunity to examine Blackledge. However, that
request was not an appeal of the magistrate judge’s orders, and
it did not place the issue of whether Dr. Plaud should have been
appointed before the district judge.


                                         49
defendant and his appointed counsel,” United States v. Smith,

640 F.3d 580, 590 (4th Cir. 2011), and that the court has “wide

latitude” in limiting a defendant’s right to counsel of choice

based upon fairness and the demands of the court’s calendar,

United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006).

     As with any abuse-of-discretion review, we are obligated to

exercise a “healthy measure of judicial restraint,” Evans v.

Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 323 (4th

Cir. 2008), reserving our power to correct only those district

court decisions that “stray[] too far from the mark,” id. at

322. Therefore, we may properly find abuse of discretion where

the district court has acted arbitrarily or irrationally, failed

to   consider    judicially      recognized     factors       constraining        its

exercise of discretion, relied on erroneous factual or legal

premises,   or    committed     an    error    of    law.   United      States    v.

Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009).

     We have identified three relevant factors to consider in

determining whether a district court abused its discretion in

denying a withdrawal motion: (1) the timeliness of the motion,

(2) the adequacy of the court’s inquiry into the matter, and (3)

whether   the    client   and   counsel      experienced      a    total   lack   of

communication preventing an adequate defense. United States v.

Reevey,   364    F.3d   151,    156   (4th    Cir.   2004).       We   weigh   these



                                       50
factors against the district court’s interest in the orderly

administration of justice. Id. at 157.

       The    majority         holds    that    the    district      court   abused         its

discretion         in     denying      Attorney       Allen’s     withdrawal       motions.

Applying      the       pertinent      factors,      the     majority    finds     that     the

timeliness factor “weighs somewhat” in support of the district

court’s ruling, Majority Op., at 13, but it concludes that the

other two factors do not. Specifically, the majority finds that

“the district court did not meet its obligation to thoroughly

inquire into the basis of the asserted conflict,” id. at 14, and

this “failure to probe deeply into the basis of Attorney Allen’s

conflict seriously undermines its decision,” id. at 15. Further,

the majority finds that “Attorney Allen labored under a conflict

of interest that caused her communications with Blackledge to be

so broken that a ‘fundamental step for adequate representation’

–   basic     trial       preparation       –    failed      to   occur.”    Id.       at   20.

Explaining         why    the    district       court’s      purported    error        is   not

harmless,      the       majority      states:       “[I]n    proceedings    that       could

result in lifelong incarceration for a person who has already

served       his        full    sentence,       Blackledge        was    forced        to    be

represented by a lawyer asserting multiple conflicts of interest

with   whom        he    had    not    prepared      for     trial   because      of    their

inability to communicate.” Id. at 24.



                                                51
     In my view, the record conclusively establishes that the

district court did not abuse its discretion, much less err at

all, in denying the withdrawal motions. Indeed, as I explain

below, each of the relevant factors fully supports the district

court’s ruling. Moreover, Blackledge received a full and fair

commitment hearing, and any purported defect in the district

court’s consideration of the withdrawal motions is harmless.

                                              A.

     First,       the   findings         by    the    magistrate     judge    and     the

district judge that the motions were untimely are not clearly

erroneous. By his own admission, Blackledge lost confidence in

Attorney Allen no later than early 2012. In July, a mere three

weeks     before     the     August      2    commitment        hearing,    and     after

Blackledge     had      previously           obtained     a    continuance     of     the

commitment     hearing, 7          the    issue      of      Blackledge’s     purported

dissatisfaction with Attorney Allen and her “internal conflict”

finally    came    to      light    when      she    filed    the   first    withdrawal

motion. Despite the magistrate judge’s specific inquiry, neither


     7
       In April 2012, Attorney Graves and Attorney Shea joined
the case on Blackledge’s behalf, giving him three FPDO attorneys
of record. The following month Blackledge successfully obtained
a continuance of the scheduled June 14 commitment hearing.
Presumably, Attorney Graves and Attorney Shea were important to
Blackledge’s case because he used their inability to attend the
June 14 hearing as justification to obtain the continuance.
Despite this fact, he presented no reason why they could not
represent him in lieu of Attorney Allen.


                                              52
Blackledge nor Attorney Allen offered any real justification for

the     delay    in   bringing       the     matter         to    the   district      court’s

attention.       Moreover,     they        did       not    challenge     the     magistrate

judge’s finding of untimeliness in the appeal of the magistrate

judge’s order to the district judge. 8

                                                B.

      Second, the district court’s inquiry into the motions was

more than adequate. Our caselaw illustrates that the district

court conducts an adequate inquiry if it gives the defendant and

counsel    the    opportunity        to    be     heard      regarding     the    nature    of

their     relationship       and     the         reason      underlying        the    motion,

considers what the attorney and defendant say in the context of

the     case     as   a     whole,        and     explains        the     basis      for   its

determination.        See    Perez,        661       F.3d    at    192.   We     review    the

adequacy of the court’s inquiry in its totality, and when the

attorney-client issue has been raised at different stages of the

litigation, the court need not revisit each aspect of the issue

at every stage. See Smith, 640 F.3d at 594-95.

      The magistrate judge, who had been very involved in the

case, spent almost one hour hearing from Blackledge and Attorney

Allen, and he afforded them every opportunity to present their


      8
       The majority appears to agree that the second withdrawal
motion, filed just days before the commitment hearing, was
untimely. See Majority Op., at 12.


                                                53
arguments. The magistrate judge specifically inquired about the

purported internal ethical conflict, and he listened as Attorney

Allen described it as arising from the fact that “there are some

things that [Blackledge] wants to see that I am not going to be

able       to    help    him    with.”   J.A.    91.    The    magistrate   judge     then

listened         as     Blackledge   expressed         his    general   dissatisfaction

with Attorney Allen and his defense, with the fact that she had

not provided him with certain unspecified documents, and with

the fact that he did not have another expert examiner. At the

end    of       the   hearing,     the   magistrate          judge   inquired   and   even

offered to conduct an ex parte hearing, and Blackledge told him

that he had nothing more to say on the matter.

       When the district judge considered the appeal of the denial

of the first motion, along with the second motion, he conducted

a de novo review and similarly afforded Blackledge and Attorney

Allen ample opportunity to argue their position. 9 The district

judge stated that he was familiar with Blackledge’s attempts to

have       Dr.     Plaud       appointed,   was        aware    of    Blackledge’s     bar


       9
       The majority states that “the district court made no
inquiry whatsoever into the scope and nature of” the “internal
ethical conflict.” Majority Op., at 18. This assertion ignores
the magistrate judge’s thorough inquiry and the district judge’s
subsequent review of that inquiry. Moreover, as is apparent from
the record, the purported “ethical” conflict involved nothing
more than Blackledge’s general disgruntlement about Attorney
Allen, his inability to see certain material, and his inability
to obtain another court-appointed examiner.


                                                54
complaint, had read all of the filed material, and had listened

to    the    audio       of        the    magistrate         judge          hearing.         Both    judges

explained         their       rulings          in   great       detail,          illustrating         their

careful          attention          and        consideration.               There       simply       is   no

reasonable basis to condemn this inquiry as being inadequate.

                                                     C.

       Finally,          the       findings         by    the    magistrate             judge       and   the

district         judge     that           there      was     not        a     total        breakdown      in

communication         that         would        prevent     Blackledge             from      mounting      an

adequate         defense       are       not    clearly         erroneous.           The     standard      by

which       we    must    judge           the    denial      of     a       withdrawal         motion      is

objective,         and     it       therefore        does        not        depend      solely      on    the

defendant’s         dissatisfaction                 with    his        attorney’s            performance.

United States v. Myers, 294 F.3d 203, 206 (1st Cir. 2002). As we

have    explained,            the        “breakdown”        of     communication              between     an

attorney and the defendant must be “so great that the principal

purpose of the appointment – the mounting of an adequate defense

incident to a fair trial – has been frustrated.” Smith, 640 F.3d

at 588.

       This standard requires us to consider whether the defendant

has    justifiable         dissatisfaction                 with     his          appointed      attorney,

which       includes           a     serious             conflict           of     interest          or    an

irreconcilable conflict. Id. at 588 n.4. However, justifiable

dissatisfaction            “is       not       established         merely          by    a    defendant’s

                                                     55
frustration with counsel’s performance or disagreement with his

tactical decisions.” United States v. Boone, 437 F.3d 829, 839

(8th   Cir.    2006).    Moreover,   the       district   court   is   not   always

required      to    substitute   counsel       even   where   a   real   conflict

exists. For example, the court may properly deny substitution

“when the defendant’s own behavior creates a conflict.” United

States v. Morsley, 64 F.3d 907, 918 (4th Cir. 1995); see also

Smith, 640 F.3d at 591 (noting that a “defendant’s obstinacy”

cannot force the district court to substitute counsel).

       The    magistrate     judge   personally       observed     the   in-court

interaction        between   Blackledge    and    Attorney    Allen    during   the

hearing on the first withdrawal motions, and he expressly found

(based on his observation) that they were able to communicate

about the case in a manner that allowed Blackledge to conduct an

adequate defense. This finding – based on the magistrate judge’s

direct observation - is not clearly erroneous. 10

       The district judge was aware of this finding, as well as

the fact that Attorney Allen had communicated in some respects

with Blackledge after the July 18 hearing and had filed pre-

hearing documents on his behalf. Other than referring to the bar

complaint and rehashing the same arguments they previously made,

       10
        The record shows that the magistrate judge paused the
July 18 hearing on two occasions in order to allow Blackledge to
confer with Attorney Allen and Attorney Shea.



                                          56
neither Blackledge nor Attorney Allen presented any additional

information to establish that she could not adequately represent

him. 11 Moreover, the district judge observed that, based on the

parties’ stipulations, the only issue to be litigated during the

commitment hearing would be the “serious difficulty” element of

the civil commitment analysis, and resolution of that element

would boil down to the testimony and cross-examination of the

expert witnesses. Of course, that is what Attorney Allen and

Blackledge have repeatedly asserted during their attempt to have

Dr. Plaud appointed. Notably, when asked by the district judge,

    11
        The majority correctly states that “not every bar
complaint against an attorney by her client will result in a
conflict of interest.” Majority Op., at 17. As we noted in
United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993), “to
hold otherwise . . . would invite criminal defendants anxious to
rid themselves of unwanted lawyers to queue up at the doors of
bar disciplinary committees on the eve of trial.” Yet, the
majority simply accepts the premise that Blackledge’s bar
complaint against Attorney Allen “forced her to choose between
protecting her own reputation and arguing in her client’s best
interest that Blackledge should not be made to bear the
consequence of her own errors in submitting the renewed motion
to appoint Dr. Plaud.” Majority Op., at 18. This assertion is
not supported by the record, however, as Attorney Allen
acknowledged on multiple occasions that she erred by not moving
sooner for Dr. Plaud’s appointment. For example, she told the
magistrate judge at the July 18 hearing that she neglected to
seek the appointment in a timely manner and that this was one
reason that Blackledge wanted another attorney. See J.A. 108.
Likewise, in the appeal of the magistrate judge’s order denying
the withdrawal motion, she cited Maples and implicitly admitted
(albeit incorrectly) that she had abandoned Blackledge. See J.A.
at 119. In short, there is no evidence to establish that
Attorney Allen’s ability to represent Blackledge was compromised
by the bar complaint.



                               57
Attorney    Allen      could     not      explain      how    her    ability      to   cross-

examine     the     experts      was      impacted      by     her   relationship         with

Blackledge.

                                               D.

      The    foregoing          discussion          amply      illustrates        that     the

district    court      did    not      abuse     its    discretion     in    denying       the

withdrawal        motions. 12     Even     assuming          otherwise,     however,       the

record makes it clear that the court’s error is harmless.

      In United States v. Horton, 693 F.3d 463 (4th Cir. 2012),

the defendant filed a timely motion to substitute counsel, and

the district court did not inquire into the reasons for the

defendant’s        dissatisfaction          with       his    attorney.     We      assumed,

without deciding, that the court abused its discretion, but we

nonetheless         found       the       error        harmless.       As      we      noted,

notwithstanding        the      defendant’s         dissatisfaction,        the     attorney

provided an adequate defense: “For example, he filed pre-trial

motions in limine, he cross-examined government witnesses, and

he   strongly      advocated        for    his      client     throughout”       the     trial


      12
        The pertinent factors strongly support the district
court’s ruling, and there is no reason to weigh them against the
court’s interest in the orderly administration of justice.
However, for what it is worth, both the magistrate judge and the
district judge explained that allowing Attorney Allen to
withdraw would delay the commitment hearing, thereby prejudicing
the government and its witnesses and impacting the court’s
docket. Weighing this factor, therefore, also supports the
court’s ruling.


                                               58
proceedings.         Id.    at    467.       Moreover,    we    recognized       that       the

defendant did not “identify – let alone show – any specific way

in which his defense was hampered by any lack of communication

with his counsel.” Id.

       Here,    the        record      reflects       that     Attorney       Allen    fully

represented Blackledge at the commitment hearing. She filed a

pre-trial brief, cross-examined the expert witnesses, moved for

judgment as a matter of law, conferred with Blackledge about

whether he wished to testify or present evidence, and made a

closing    argument.         Although        the     majority    concludes       that      the

alleged     communication              breakdown      prevented         Blackledge         from

preparing for the commitment hearing or discussing whether he

would testify, those general assertions – even if true - simply

do not establish that the hearing was unfairly tainted by the

attorney-client relationship.

       Notably, Blackledge has not offered any reason why he could

not have testified or, more importantly, what relevant testimony

or other evidence he would have presented had his relationship

with    Attorney       Allen          been    better.        Importantly,       Blackledge

stipulated to the first two elements of the civil commitment

analysis,      so    there       was    no    relevant       evidence    he    could       have

offered   on    those        elements.        As    the   district      judge    correctly

observed,      the    issue      of    civil       commitment    boiled       down    to    one

question: whether the government proved the “serious difficulty”

                                               59
element. Consistent with what Attorney Allen and Blackledge have

repeatedly asserted, our caselaw establishes that resolution of

this element depended on expert testimony, not on Blackledge’s

testimony. 13 Perhaps the most telling observation concerning the

irrelevance       of   any   testimony   he    may   have    offered    comes      from

Blackledge: “[I]t seems highly probable that had he testified,

his testimony would have failed to persuade the district court

judge that he could refrain from further acts of sexual violence

or child molestation.” Opening Brief of Appellant, at 34.

      In    any     event,    regardless      of   whether    they     communicated

before     the    hearing,     and    regardless     of   whether      any   of    his

testimony would be relevant, Attorney Allen had the opportunity

to confer with Blackledge about testifying during the hearing,

and   he    chose      not   to   testify.     Further,      the   district       court

reviewed         Blackledge’s        deposition      testimony       during         his

deliberations and was aware of the substance of what he would

likely say at the hearing. Moreover, the district judge noted,

and Blackledge does not dispute, that Blackledge was prepared by

      13
        The majority analogizes a commitment hearing to a
sentencing hearing, observing that it often “turn[s] on
mitigating   evidence   as    to   the   respondent’s   continued
dangerousness.” Majority Op., at 20. This analogy fails,
however, because it ignores the fact that expert testimony is
the relevant evidence for the “serious difficulty” element.
Moreover, unlike a sentencing hearing, where a plea in
mitigation can sway a district court towards leniency, the
court’s duty to commit a defendant is mandatory if the
government proves the elements by clear and convincing evidence.


                                         60
counsel before the deposition and represented by counsel during

the deposition. 14

                               E.

     Apart from my disagreement with the majority’s abuse-of-

discretion and harmless error determinations, I also question

its instruction on remand for the district court to “reconsider”

     14
        The majority asserts that the admission of Blackledge’s
deposition into evidence indicates that the district judge found
Blackledge’s testimony to be relevant as to the “serious
difficulty” element. See Majority Op., at 22 n.6. The majority
is incorrect for at least two reasons. First, we have a good
indication that the district judge did not consider Blackledge’s
testimony to be relevant to the “serious difficulty” element
because the judge correctly noted early in the commitment
hearing that the outcome of the commitment hearing hinged on
expert testimony. Because Blackledge did not object to the
government’s subsequent attempt to admit the deposition into
evidence, the district judge had no reason at that time to
address whether it was relevant to the “serious difficulty”
element or to exclude it for any reason; in this posture, the
admission of the deposition simply accords with our admonition
that most evidence should be admitted in non-jury proceedings.
See Multi-Med. Convalescent and Nurs. Ctr. of Towson v.
N.L.R.B., 550 F.2d 974, 977-78 (4th Cir. 1977). Second, and more
importantly, the deposition was in fact relevant, but just not
as the majority contends. Specifically, both of the experts who
testified at the hearing relied on the deposition in part to
form their opinions regarding whether Blackledge meets the
commitment criteria, and they utilized the deposition during
their testimony to help explain their opinions. See J.A. 184,
186, 187, 195, 215-16. The admission of the deposition was thus
entirely consistent with the well-settled principle that the
“serious difficulty” element “turns on the significance of the
factual information as viewed by the expert psychiatrists and
psychologists.” Francis, 686 F.3d at 275. Regardless, it bears
repeating that to whatever extent the district judge may have
believed Blackledge’s testimony was relevant, the judge had
Blackledge’s deposition testimony before him, and Blackledge has
not explained what additional relevant testimony he would have
given at the commitment hearing.


                               61
the     withdrawal      motions       “after         engaging          in     the     appropriate

inquiry     regarding        the    extent      of     Attorney        Allen’s        conflicts.”

Majority Op., at 24. I suspect that on remand the district court

will    ask     the    same    question         that       I    have:       What    is    left    to

consider?

       As   I   have    noted,      the    majority            has    found    that      “Attorney

Allen    labored       under    a    conflict         of       interest      that     caused     her

communications         with        Blackledge         to        be    so      broken      that     a

‘fundamental       step      for    adequate         representation’           –    basic    trial

preparation – failed to occur,” Majority Op., at 20, and that he

was “forced to be represented by a lawyer asserting multiple

conflicts of interest with whom he had not prepared for trial

because of their inability to communicate,” id. at 24. Given the

definitive nature in which the majority has spoken, I fail to

understand       how     the       district       court         can        “reconsider”      these

appellate findings or how it can do anything on remand other

than     appoint       Blackledge         new        counsel         and     conduct       another

commitment       hearing.       I    suspect         that       if     the     district      court

“reconsidered”         the     motions       on      remand          and     denied      them,   my

colleagues in the majority – to be consistent with the majority

opinion - will overturn the district court’s decision if there

is a subsequent appeal.




                                                62
                                     V

     Based   on   the   foregoing,   I    dissent.   I   would   affirm   the

judgment of the district court.




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