                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2008

USA v. Brightwell
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4548




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                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 06-4548
                     _________

          UNITED STATES OF AMERICA

                            v.

             RICHARD BRIGHTWELL,

                                        Appellant




    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                (D. C. No. 01-cr-00033)
       District Judge: Hon. R. Barclay Surrick




      Submitted under Third Circuit LAR 34.1(a)
                  on April 11, 2008


Before: SMITH, HARDIMAN and ROTH, Circuit Judges


          (Opinion filed: August 11, 2008)
                                      OPINION

ROTH, Circuit Judge:

       Richard Brightwell appeals the orders of the U.S. District Court for the Eastern

District of Pennsylvania, accepting documentation of a previous conviction for purposes of

sentencing, denying his motion for appointment of counsel, and denying his motion

requesting recusal. For the reasons discussed below, we will affirm.

I. Background and Procedural History

       As the facts are well known to the parties, we will discuss them only briefly here.

       Following a jury trial in the U.S. District Court for the Eastern District of

Pennsylvania, Richard Brightwell was convicted of possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm as a felon, in

violation of 18 U.S.C. § 922(g), and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c). Brightwell was initially sentenced in

April 2003, but his sentence was vacated and the case remanded following United States v.

Booker, 543 U.S. 220 (2005). United States v. Brightwell, No. 03-2001, 126 Fed. Appx. 47

(3d Cir. Apr. 19, 2005).

       A new sentencing hearing was held on October 13, 2006. The District Court

sentenced Brightwell to 248 months imprisonment (188 months for the counts of cocaine

possession and felon in possession of a firearm, to run concurrently, plus 60 months for the



                                             2
count of possession of a firearm in furtherance of drug trafficking, to be served

consecutively), three years of supervised release, a $17,500 fine, and a $300 special

assessment.1 Brightwell appealed, alleging three errors.

           Brightwell argues first that the District Court erred in determining that certain

documentation was an authentic and certified copy of a record of his 1963 murder conviction.

As a result of this conviction, the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), was

applicable, triggering a fifteen-year mandatory minimum sentence for Brightwell’s

conviction of possession of a firearm as a felon.

           Second, Brightwell claims that the District Court erred when it denied his second

motion for appointment of counsel.2 In his motion, Brightwell stated that his relationship

with counsel was “nil” and that “the trust factor is a problem.” The District Court denied this

motion after questioning Brightwell, who indicated that he wanted a different attorney

because his current counsel had merely adopted the arguments made by his previous counsel.

           Third, Brightwell asserts that the District Court erred in denying his motion for

recusal. Brightwell offered ten grounds for his motion, including bias or prejudice within




       1
    The term of imprisonment imposed following Brightwell’s initial sentence was 322
months.
   2
   Brightwell had previously moved for appointment of new counsel when represented by
another attorney. The District Court granted that attorney’s motion to withdraw and
appointed the attorney who is the subject of the motion at issue on appeal.

                                               3
the meaning of 28 U.S.C. § 455.3 The District Court denied Brightwell’s motion as

“completely frivolous.”

II. Analysis

        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review each of Brightwell’s points of

error in turn.

        We review the District Court’s factual findings as to the authenticity of the purported

record of conviction for clear error and its legal conclusions de novo. United States v. Grier,

475 F.3d 556, 570 (3d Cir. 2007). Brightwell’s primary argument is that a deputy’s signature

is lacking on the 1963 sentence sheet. However, the documentation submitted to support the

conviction, obtained at the District Court’s request, was certified by the Clerk of the Superior

Court of Fulton County as “a true, complete and correct copy of the original in said case, as




    3
      Brightwell asserted that recusal was proper pursuant to 28 U.S.C. § 455 because 1)
“disqualification of Judge due to bias and prejudice;” 2) the District Court allowed
continuances that were incorrectly attributed to Brightwell; 3) the District Court whispered
to the prosecutor that he thought that Brightwell was going to plead guilty; 4) at one point
the District Court Judge and Brightwell’s original attorney practiced in the same town; 5) the
District Court informed Brightwell’s co-defendant that his attorney could not represent him
after the attorney testified on Brightwell’s behalf at an evidentiary hearing; 6) the District
Court Judge “went into the room where jurors was [sic] being held and selected the jurors
that the defense and prosecutor could choose from;” 7) the Pre-Sentence Investigation Report
indicated that the details regarding one previous offense were pending, but the District Court
sentenced Brightwell anyway without investigation, thereby showing prejudice to Brightwell;
8) Brightwell thought that the District Court had not read the Pre-Sentence Investigation
Report because it indicated that he had been sentenced for one of his earlier offenses only
one month after being arrested.

                                               4
appears by the original on file . . .”, and Brightwell did not argue that he was not convicted

of the 1963 crime. As such, we find no clear error in the District Court’s determination that

Brightwell had been convicted of murder in 1963, as evidenced by the certified copy of his

conviction.

       We review the District Court’s denial of Brightwell’s request for new counsel for

abuse of discretion. United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995). “[I]n

order to warrant a substitution of counsel during trial, the defendant must show good cause,

such as a conflict of interest, a complete breakdown in communication, or an irreconcilable

conflict with his attorney.” United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982). The

District Court is obliged to “decide if the reasons for the defendant’s request for substitute

counsel constitute good cause and are thus sufficiently substantial to justify a continuance

. . . in order to allow new counsel to be obtained.” Id. at 187. In Welty, we explained,

“[T]he district court must engage in at least some inquiry as to the reason for the defendant’s

dissatisfaction with his existing attorney. . . . ‘If the reasons are made known to the court,

the court may rule without more.’” Id. at 187-88 (quoting Brown v. United States, 264 F.2d

363, 369 (D.C. Cir. 1959) (Burger, J., concurring in part)).

       We reject Brightwell’s argument that the District Court failed to meet its obligations

in this case. In his motion, Brightwell claimed that his relationship with his attorney was

“nil” and that “the trust factor [was] a problem.” The District Court asked Brightwell at

sentencing why he wanted his counsel removed, and Brightwell responded that his lawyer



                                              5
had adopted the arguments of his previous counsel and had “none of his own.” In this case,

we cannot say that the District Court abused its discretion in determining that these reasons

did not warrant the appointment of new counsel.

       We review the District Court’s denial of Brightwell’s motion for recusal for abuse of

discretion. Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006). Brightwell sought recusal

pursuant to 28 U.S.C. § 455, which provides, “Any justice, judge, or magistrate judge of the

United States shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.”      28 U.S.C. § 455(a).4     Brightwell makes only conclusory

allegations as to bias or prejudice on the District Court’s part. See Liteky v. United States,

510 U.S. 540, 555 (1994) (explaining that judicial rulings and remarks during the course of

proceedings generally do not support a bias or partiality motion). The grounds cited by

Brightwell in his motion do not suggest that the District Court’s impartiality could reasonably

be questioned. As such, we find no abuse of discretion in the District Court’s denial of

Brightwell’s motion, and we decline Brightwell’s request to remand the issue for further

proceedings.




  4
    In addition, 28 U.S.C. § 144 provides, “Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the judge before whom the matter
is pending has a personal bias or prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.”

                                               6
III. Conclusion

       For the reasons set forth above, we will affirm the judgment and sentence of the

District Court.




                                           7
