                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0002n.06

                                           No. 09-1647

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
SAM BROOKS,                                             )
                                                                                    Jan 04, 2012
                                                        )
       Plaintiff-Appellee,                              )                    LEONARD GREEN, Clerk
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
BLAINE LAFLER,                                          )   COURT FOR THE EASTERN
                                                        )   DISTRICT OF MICHIGAN
       Defendant-Appellant.                             )


Before:        KEITH, SUTTON, and McKEAGUE, Circuit Judges.

       PER CURIAM.

       This case concerns a petition for writ of habeas corpus. On the day his case was set for trial,

Defendant-Appellant Sam Brooks (“Brooks”) requested new counsel. The trial court denied his

request. Having unsuccessfully sought relief in state court, Brooks now asks this Court for a writ

of habeas corpus. Brooks argues that the trial court violated his Sixth Amendment rights by failing

to conduct a proper inquiry into whether there was good cause for a substitution of counsel. For the

reasons discussed below, we deny his request for habeas relief.

                                                 I.

       Brooks was charged with assault with intent to murder, possession of a firearm during the

commission of a felony, felon in possession of a firearm, and other related charges. On September

7, 2004, the day his case was set for trial, Brooks was offered a plea deal. Prior to rejecting or
accepting the offer, Brooks requested that the court appoint new counsel. The following colloquy

occurred:

              Court:                Anything else that you want to talk to me about?

              Brooks:               Yes. Is it possible that I could get another lawyer?

              Court:                For what reason?

              Brooks:               Because I feel that she’s not representing me right.

              Court:                Well, I don’t—is that because you’re not getting the
                                    offer that you want?

              Brooks:               No, sir.

              Court:                Well, Mr.—

              Brooks:               There are some things that I requested and I haven’t
                                    received.

              Defense Counsel:      Let’s hear what he requested.

              Brooks:               Oh, my papers that she received, she gave me
                                    yesterday. And plus, out of the times I’ve been due in
                                    court, I’ve only seen her four times.

              Defense Counsel:      Judge, I’ve been to see Mr. Brooks. I have a
                                    receipt for—

              Brooks:               Twice.

              Defense Counsel:      —back on June 21st, where I gave him the discovery.
                                    And I provided him with additional discovery—just
                                    so the record is clear—additional discovery. And you
                                    know, I’m fully prepared to try this case. I’ve read the
                                    transcript, I’ve been in touch with Mr. Jansen and
                                    talked to him about the case, and he gave me
                                    Investigative Subpoenas and things like that.



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                                        Although I may not have been sitting in front of Mr.
                                        Brooks when those things occurred, I’ve been
                                        working on his case, and I’m aware that he might not
                                        like my assessment of the evidence, but he should
                                        know that any other lawyer is going to make the same
                                        assessment.

                Court:                  All right. I would deny your motion to recuse
                                        [defense counsel]. I think that—know that if [defense
                                        counsel] was not prepared or she felt that there was
                                        some kind of issue, she would bring it up to me,
                                        because she’s not going to try a case that’s this
                                        serious—believe it or not, she cares about you.

                                        She cares about every client she has; I know [her],
                                        that’s how she feels. This is very important to her, I
                                        guarantee you, she’s prepared.


        Brooks rejected the plea offer, waived a jury trial and proceeded with a bench trial. The court

found Brooks guilty of assault with intent to murder, possession of a firearm during the commission

of a felony, and felon in possession of a firearm, and imposed a sentence which Brooks does not

challenge. Rather, Brooks filed an appeal in state court claiming that the trial court violated his Sixth

Amendment right to counsel by not conducting an adequate “good cause” inquiry following his

request for new counsel. The Michigan Court of Appeals affirmed the conviction and sentence in

an unpublished order on December 13, 2005. The Michigan Supreme Court denied Brooks leave

to appeal on April 28, 2005.

        On September 22, 2006, Brooks filed a habeas petition in federal district court pursuant to

28 U.S.C. § 2254. The district court denied the petition and granted a certificate of appealability on

the Sixth Amendment issue now before this Court.




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                                                  II.

        The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides federal

court remedies for persons held in state custody in violation of the Constitution or federal laws. If

a claim was adjudicated on the merits in state court, AEDPA provides that a writ of habeas corpus

may only issue if the adjudication resulted in a decision that was either: (1) “contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States” or (2) “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Brooks does not

argue that the trial court’s actions were based on an unreasonable determination of the facts, and we

therefore need not address that prong of AEDPA. A state court decision is contrary to clearly

established law if the state court “arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law,” or arrives at a result opposite to the Supreme Court on materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).

                                                 III.

        Brooks claims that the state court violated his Sixth Amendment right to counsel when it

denied his request for new counsel without a sufficient inquiry into good cause, and that, as a result,

he is entitled to habeas relief. We disagree. Supreme Court precedent does not afford Brooks the

absolute right to have the counsel of his choosing, and, as explained below, the Sixth Circuit

precedent that lends his claim support does not resolve this case.

        The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of Counsel for his defense.” U.S. Const. amend. VI. In Powell

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v. Alabama, the Supreme Court recognized that “a defendant should be afforded a fair opportunity

to secure counsel of his own choice.” 287 U.S. 45, 53 (1932). The Sixth Amendment also

guarantees “a defendant the right to be represented by an otherwise qualified attorney whom that

defendant can afford to hire, or who is willing to represent the defendant even though he is without

funds.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-625 (1989). However,

“the right to choose one’s own counsel is circumscribed in several important respects.” Wheat v.

United States, 486 U.S. 153, 159 (1988). The Supreme Court has held that “while the right to select

and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the

essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant

rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”

Id.

       In order for Brooks to prevail, he must demonstrate that the state court decision was contrary

to clearly established law as determined by the Supreme Court of the United States. 28 U.S.C. §

2254(d)(1). For the purposes of AEDPA, however, the clearly established law does not indicate that

the trial court had a duty to conduct a good cause inquiry before determining whether to grant or

deny Brooks’s request for new counsel. Indeed, the Supreme Court has held that the Sixth

Amendment “guarantees defendants in criminal cases the right to adequate representation, but those

who do not have the means to hire their own lawyers have no cognizable complaint so long as they

are adequately represented by attorneys appointed by the courts.” Caplin & Drysdale, 491 U.S. at

624. Brooks, therefore, had a right to be represented by the counsel of his choice only if he could

afford to hire that counsel, or if that counsel was willing to represent him regardless of his inability


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to pay. Here, Brooks made no mention of having retained or planning to retain counsel on his own.

Instead, he requested that his court appointed lawyer be replaced. Given these facts, the new counsel

Brooks sought would have been, in all likelihood, court appointed. To the extent that Brooks would

invoke Caplin because his representation was inadequate, we are unpersuaded. Nothing before us

suggests that Brooks’s counsel did not represent him “adequately.” Id.          Brooks sought a new

attorney because he did not receive discovery materials in a manner he found timely and because his

attorney did not meet with him as often as he would have liked. These allegations do not implicate

the Supreme Court’s instruction that those with no means to hire counsel do, indeed, have just cause

for constitutional complaint if their representation is subpar and they suffer prejudice as a result.

See Evitts v. Lucey, 469 U.S. 387, 395-96 (1985).

       Brooks directs us to Benitez v. United States, in which we stated that once a defendant

wishing to substitute counsel brings “any serious dissatisfaction . . . to the attention of the district

court,” the court “is obligated to inquire into the defendant’s complaint and determine whether there

is good cause for the substitution.” 521 F.3d 625, 632 (6th Cir. 2008) (internal quotations and

citations omitted). True though this may be, and regardless whether the district court’s inquiry was

sufficient under Benitez, we are not permitted to base our decision on that case. Rather, as we have

explained, Brooks’s habeas petition rises or falls on the existence of clearly established law as

determined by the Supreme Court. Because Brooks offers no such law supporting his claim, and we

are unaware of any such law, he has not shown that he is entitled to relief under AEDPA. See 28

U.S.C. § 2254(d)(1).




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                                     IV.

For the foregoing reasons, we AFFIRM the denial of Brooks’s habeas petition.




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