                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0147p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                      X
                              Petitioner-Appellant, -
 ALBERTO RODRIGUEZ BENITEZ,
                                                       -
                                                       -
                                                       -
                                                           No. 05-2484
          v.
                                                       ,
                                                        >
 UNITED STATES OF AMERICA,                             -
                             Respondent-Appellee. -
                                                      N
                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
           Nos. 03-00088; 04-00627—Robert Holmes Bell, Chief District Judge.
                                    Submitted: March 11, 2008
                                 Decided and Filed: April 9, 2008
                     Before: KEITH, CLAY, and GILMAN, Circuit Judges.
                                        _________________
                                             COUNSEL
ON BRIEF: Christopher P. Yates, YATES, LaGRAND & DENENFELD, Grand Rapids,
Michigan, for Appellant. B. Rene Shekmer, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
       RONALD LEE GILMAN, Circuit Judge. Alberto Rodriguez Benitez pled guilty to one
count of conspiracy to distribute more than 100 grams of marijuana and one count of conspiracy to
launder money. He was subsequently sentenced to two concurrent terms of 120 months of
imprisonment, four years of supervised release, a $10,000 fine, and a $200 special assessment.
Benitez did not pursue a direct appeal. He did, however, file a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Benitez raised five grounds for relief, all of which related to his
counsel’s performance at sentencing and to the sentence itself. One of the claims raised by Benitez
was that he was denied his Sixth Amendment right to counsel during the sentencing hearing.
        The district court dismissed Benitez’s § 2255 motion on the basis that the motion was not
timely filed, but did not consider whether Benitez was entitled to equitable tolling. In any event, the
court did not rest its decision on the lack of timeliness. It instead proceeded to explain why
Benitez’s claims were without merit. For the reasons set forth below, we REVERSE the judgment
of the district court and REMAND the case for further proceedings consistent with this opinion.


                                                  1
No. 05-2484           Benitez v. United States                                                Page 2


                                       I. BACKGROUND
A.     Factual background
       In May of 2003, Benitez pled guilty to one count of conspiracy to distribute more than 100
grams of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii), and one count
of conspiracy to launder money, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h).
Benitez’s sentencing hearing took place in August of 2003. Although there was no interpreter
present at Benitez’s plea hearing, an interpreter was on hand at his sentencing hearing in case
Benitez did not understand something that was said.
        At the sentencing hearing, the district court considered the government’s motion for a
downward departure based on Benitez’s cooperation in the investigation of the drug conspiracy in
which he participated. The government outlined the testimony that Benitez had given at the trial of
two coconspirators. Benitez’s attorney, John Beason, was then asked if he wished to be heard.
Beason replied: “Your honor, before I—I would inform the Court that I was told last night that I
was fired from this case and he wished me not to represent him any longer. So am I to still speak
on his behalf if the Court knows that fact?” The court responded by asking Benitez how he wished
to proceed. After Benitez conferred with the interpreter, the interpreter said that Benitez did not
want Beason to represent him. Benitez also declined to speak for himself, indicating through the
interpreter that “he felt very upset, very nervous.”
        The district court then asked whether Benitez wanted Beason “to speak on [his] behalf at this
time.” Benitez replied “no,” and his interpreter followed up by stating: “Well, he can speak, but
I don’t want him to represent me any longer.” The court explained that by speaking, “he would be
representing you and telling what’s good about you and your position here.” Benitez responded
through the interpreter, saying: “No, I do not want him to represent me.”
        The court then asked Beason to remain where he was, and addressed Beason directly: “I
want you here for just a little while longer. I want the record to reflect that you were on your feet
and you were prepared to make comments, presumably—may I presume that they were in support
of the government’s motion for a downward departure for your client?” Beason replied: “Very
much so, Your Honor.”
        The district court proceeded by granting the government’s downward-departure motion. It
then asked Benitez if he wanted to say anything on his own behalf before the court imposed the
actual sentence. Benitez said: “I don’t feel good. I can’t speak.” At this point, the following
colloquy between the court and Benitez took place:
               THE COURT: You do not wish Mr. Beason to speak on your behalf;
               is that right?
               DEFENDANT BENITEZ: Am I going to get sentenced still even
               though he won’t represent me?
               ....
               THE COURT: Right, right.
               DEFENDANT BENITEZ: Might as well just have him speak for me,
               then.
               THE COURT: You might as—excuse me?
               THE INTERPRETER: Go ahead and have him speak for me. Go
               ahead and have him speak for me.
       The district court concluded the hearing by sentencing Benitez to two 120-month terms of
imprisonment, to be served concurrently, in addition to four years of supervised release, a $10,000
No. 05-2484           Benitez v. United States                                                Page 3


fine, and a $200 special assessment. Beason then requested that he be relieved from representing
Benitez on appeal, reasoning that “if he should choose to appeal I know . . . he’s going to allege
ineffective assistance of counsel.” The court granted the request, but also stated: “I want the record
to reflect that you have, with Mr. Benitez’s permission, spoken on his behalf, accepted the papers,
and turned those papers over to him and executed your responsibilities as Mr. Benitez permitted you
in this proceeding this morning.” At this point, the following exchange occurred:
               THE COURT: Is that correct, Mr. Benitez?
               MR. BEASON: You have to answer yes.
               DEFENDANT BENITEZ: Yes.
B.     Procedural background
        Benitez did not pursue a direct appeal. But on September 17, 2004, acting through counsel,
he filed a motion for relief from judgment pursuant to 28 U.S.C. § 2255. Benitez argued that (1) he
was deprived of his Sixth Amendment right to counsel during the sentencing hearing, (2) he received
ineffective assistance of counsel “during the phase of the sentencing hearing for which he had
counsel,” (3) he was deprived of his Fifth Amendment right to due process of law when the district
court imposed a sentence while operating under a misapprehension of law, (4) his sentence was
calculated in violation of Blakely v. Washington, 542 U.S. 296 (2004), and (5) he received
ineffective assistance of counsel because Beason failed to file a timely notice of appeal.
        The district court denied Benitez’s motion on the basis that the same was barred by the one-
year statute of limitations contained in 28 U.S.C. § 2255. It also noted that “even if [it] were to
consider the merits of Benitez’s claims for relief, the motion would be denied.” With respect to
Benitez’s claim that he was denied the right to counsel during his sentencing hearing, the district
court concluded that although “the record evidences some confusion on Benitez’s part as to his
counsel’s role at sentencing, there is no evidence that he was without counsel during the
proceeding.” The court further determined that all of Benitez’s other claims for relief were
“completely without merit.”
        Benitez subsequently filed a motion to alter or amend the judgment pursuant to Rule 59(e)
of the Federal Rules of Civil Procedure, contending, among other things, that he was entitled to
equitable tolling based on the failure of his counsel to timely file his § 2255 motion. The district
court denied the motion, concluding that “even assuming equitable tolling applies, the outcome of
the case does not change” because Benitez’s claims lacked merit. Nevertheless, the court issued a
COA on Benitez’s right-to-counsel claim. This court subsequently declined to expand the COA as
to Benitez’s claim that he received ineffective assistance of counsel when Beason failed to file a
notice of appeal after Benitez was sentenced. Benitez’s claim regarding his right to counsel during
his sentencing hearing is thus the sole issue presently before us.
                                          II. ANALYSIS
A.     Statute of limitations
        A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitations,
with the limitations period beginning to run “from the latest of” four possible dates. The only two
that are potentially relevant in the present case are
               the date on which the judgment of conviction becomes final; [or] the
               date on which the right asserted was initially recognized by the
               Supreme Court, if that right has been newly recognized by the
               Supreme Court and made retroactively applicable to cases on
               collateral review . . . .
No. 05-2484           Benitez v. United States                                                  Page 4


28 U.S.C. § 2255(f)(1)&(3).
        Although Benitez’s claim based on Blakely v. Washington, 542 U.S. 296 (2004), is not before
us, we note that any sentencing claim would now be governed by United States v. Booker, 543 U.S.
220 (2005). Moreover, Booker has not been made retroactively applicable to cases on collateral
review. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005).
         Benitez’s judgment became final on September 15, 2003, the date that marked the expiration
of the 10-day time period (plus intervening weekends and a federal holiday) when he could have
filed a timely appeal of his August 29, 2003 judgment and commitment order. See Fed. R. App. P.
4(b)(1); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (concluding that,
as a general matter, the time limitation for appealing a criminal judgment contained in Rule 4(b)(1)
of the Federal Rules of Appellate Procedure governs when a judgment of conviction becomes final
for the purposes of 28 U.S.C. § 2255(f)(1)). Benitez filed his § 2255 motion on September 17,
2004, two days after the limitations period lapsed. The district court therefore determined that
Benitez’s motion was untimely.
         As the government points out, the district court’s “primary ruling of time barred has never
been found to be in error.” Neither the parties nor the district court, however, addressed the merits
of whether Benitez is entitled to equitable tolling, despite its availability where a motion to vacate
is filed after the one-year limitations period contained in 28 U.S.C. § 2255. See Dunlap v. United
States, 250 F.3d 1001, 1004-05 (6th Cir. 2001) (holding that § 2255(f) is not jurisdictional in nature
and that equitable tolling is therefore available). The district court instead concluded that Benitez
would not be entitled to relief even if it assumed that equitable tolling applied. Nevertheless, it
issued a COA on the issue of whether Benitez was denied the right to counsel at his sentencing
hearing.
        If Benitez’s right-to-counsel claim were clearly without merit, we could ignore the fact that
his § 2255 motion was untimely filed. See Pough v. United States, 442 F.3d 959, 965 (6th Cir.
2006) (concluding that the equitable-tolling analysis can be bypassed where the merits of a case “can
be resolved in a straightforward manner and will also result in the denial of [the § 2255] motion”).
But as discussed below, we do not believe that Benitez’s right-to-counsel claim can be so easily
disposed of on the merits.
B.      Right to counsel
       1.      Standard of review
        “A prisoner in custody under sentence of a [federal] court . . . claiming the right to be
released upon the ground that the sentence was imposed in violation of the Constitution . . . may
move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C.
§ 2255(a). We review a district court’s denial of a § 2255 motion de novo, but examine its findings
of fact under the clearly erroneous standard of review. Mallett v. United States, 334 F.3d 491, 497
(6th Cir. 2003).
        A defendant facing the possibility of incarceration has a Sixth Amendment right to counsel
at all “critical stages” of the criminal process, and a sentencing hearing is one type of “‘critical
stage[]’ at which the right to counsel attaches.” King v. Bobby, 433 F.3d 483, 490 (6th Cir. 2006)
(quoting United States v. Wade, 388 U.S. 218, 224 (1967)). The right to counsel can be waived, but
only where such waiver is “knowing, voluntary, and intelligent.” Id. (citing Johnson v. Zerbst, 304
U.S. 458, 464 (1938)). A violation of a defendant’s right to counsel at a critical stage is a structural
error, and is therefore not subject to an analysis of whether the error was harmless or prejudicial.
United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2566 (2006) (concluding that a Sixth Amendment
violation of the right to counsel of choice “is not subject to harmless-error analysis”); United States
No. 05-2484            Benitez v. United States                                                   Page 5


v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005) (noting that a defendant is not required to demonstrate
prejudice when there is a “structural error,” such as a violation of the right to counsel).
        Benitez argues that he was denied the right to counsel because, despite having expressed
dissatisfaction with Beason and informing the district court that he did not want Beason to represent
him, the district court failed to “ascertain the basis for Mr. Benitez’s dissatisfaction.” He also claims
that Beason “abdicated his responsibility to comment on the government’s downward departure
motion,” and that the district court erred by failing to “take steps to ensure that Mr. Benitez was
assisted by counsel in making an argument for a more extensive downward departure.”
         In response, the government contends that Benitez “had counsel with him during the entire
sentencing proceeding,” and that Beason was “fully prepared to . . . address each of the items
relative to sentencing, including the [government’s downward-departure motion].” The government
thus contends that Benitez’s right to counsel is not even at issue in the present case. It instead
frames the “real issue” as whether Benitez “has a right to make his own decisions and to determine
when his counsel will or will not speak on his behalf.” In reviewing Benitez’s § 2255 motion, the
district court took a similar view:
                It is . . . beyond question that Benitez had counsel during the
                sentencing phase of his proceeding. Benitez’s counsel was prepared
                and willing to speak on Benitez’s behalf regarding the downward
                departure motion, however, when called upon to do so, Benitez
                prevented his counsel from speaking and asked that his counsel be
                discharged. Benitez did not indicate that he wanted new counsel,
                never asked the Court to appoint another attorney, never asked to
                represent himself, and did not ask for an adjournment to find another
                counsel. . . . While the record evidences some confusion on Benitez’s
                part as to his counsel’s role at sentencing, there is no evidence that he
                was without counsel during the proceeding.
        Contrary to the district court’s analysis, we do not believe that the fact that Beason was
present at the sentencing hearing and “prepared and willing to speak on Benitez’s behalf” is
dispositive of Benitez’s claim. We note, moreover, that the facts of this case do not fit comfortably
within the various strands of existing Sixth Amendment jurisprudence. In particular, what makes
this case unique—and therefore hard to categorize—is that Benitez (1) was represented by privately
retained as opposed to court-appointed counsel (although some evidence in the record suggests that
he may have actually been eligible for a court-appointed attorney), (2) did not affirmatively request
new counsel or to represent himself, but did clearly state at the beginning of the hearing that he did
not want Beason to represent him, and (3) at a later point in the hearing authorized Beason to speak
on his behalf. These facts, when taken together, led both the government and the district court to
conclude that Benitez’s right to counsel was not implicated.
         The district court, however, failed to recognize that the Sixth Amendment is implicated
where a criminal defendant seeks to change the status of his representation. This kind of “change”
of status usually arises in one of two ways: (1) a defendant seeks to invoke his right to self-
representation, see, e.g., United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004) (concluding
that the defendant had successfully invoked the right to self-representation where he knowingly and
intelligently waived the right to counsel), or (2) a defendant seeks to substitute his counsel, see, e.g.,
United States v. Green, 388 F.3d 918, 922 (6th Cir. 2004) (holding that a defendant’s “persistent,
unreasonable demand for dismissal of counsel and appointment of new counsel functioned as a valid
waiver of the right to counsel”).
No. 05-2484           Benitez v. United States                                                  Page 6


       2.      Self representation
        A defendant seeking to assert his right to self-representation must take affirmative steps to
apprise the court of his desire to proceed in this manner. United States v. Cromer, 389 F.3d 662, 682
(6th Cir. 2004) (holding that the district court was not required to warn the defendant about the
consequences of waiving the right to counsel where the defendant personally participated in the
cross-examination of a witness but “continued to receive substantial assistance of counsel,”
concluding that a defendant must “clearly and unequivocally assert[] his right to proceed pro se”).
When a defendant does so, the court is then required to determine whether the attempted waiver of
the right to counsel is knowing and intelligent. McBride, 362 F.3d at 366 (reiterating the well-
established principle that where a district court “is faced with an accused who wishes to represent
himself, the court must ask the defendant a series of questions” and should “make an express finding
on the record that the accused has knowingly and voluntarily waived his right to counsel”).
        The record in the present case clearly demonstrates that Benitez did not attempt to waive his
right to counsel by requesting self-representation. To the contrary, Benitez repeatedly declined to
address the court on his own behalf, stating that he did not feel well or that he was too nervous. Cf.
Brewer v. Williams, 430 U.S. 387, 404 (1977) (noting that courts must “indulge in every reasonable
presumption against waiver” of the right to counsel). This court’s cases addressing the right to self-
representation are therefore inapplicable in the present case.
       3.      Substitution of counsel
        As with an assertion of the right to self-representation, a defendant wishing to substitute
counsel must “bring any serious dissatisfaction with counsel to the attention of the district court.”
United States v. Iles, 906 F.2d 1122, 1131-32 (6th Cir. 1990) (requiring the defendant to “show his
hand” by alerting the district court of his desire to substitute counsel). Once a defendant does so,
the district court is obligated to inquire into the defendant’s complaint and determine whether there
is good cause for the substitution. Id. at 1131 (“It is hornbook law that when an indigent defendant
makes a timely and good faith motion requesting that appointed counsel be discharged and new
counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant’s
dissatisfaction with his current counsel.” (alterations and internal quotation marks omitted)).
        Thus, where a court is faced with a defendant’s request to effect a change in his
representation by way of a motion to substitute counsel, the court must determine whether there is
good cause for the substitution by balancing “the accused’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice.” United States v. Jennings, 83
F.3d 145, 148 (6th Cir. 1996) (concluding that the district court did not abuse its discretion in
denying motions to substitute counsel raised by codefendants one day before the trial was set to
begin). Appellate courts reviewing the denial of such a motion “generally consider the timeliness
of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the
conflict between the attorney and client was so great that it resulted in a total lack of communication
preventing an adequate defense.” Iles, 906 F.2d at 1130 n.8.
         The record here makes clear that, as the district court noted, “Benitez did not indicate that
he wanted new counsel, never asked the Court to appoint another attorney, never asked to represent
himself, and did not ask for an adjournment to find another counsel.” But Beason’s first statement
to the court was that “I was told last night that I was fired from this case and [Benitez] wished me
not to represent him any longer.” The district court responded to Beason’s remark by asking Benitez
“what is your pleasure here?”, at which point Benitez confirmed that he did not want Beason to
represent him.
No. 05-2484           Benitez v. United States                                                  Page 7


        This leads to the question of whether, in the absence of an affirmative request to substitute
counsel or for additional time to seek new counsel, the district court was obligated to inquire further
to discover the source of Benitez’s dissatisfaction. Benitez asserts that the court was required to
make such an inquiry, and that its failure to do so resulted in a violation of his right to counsel. On
this score, he relies on Iles, 906 F.2d at 1131, for the proposition that “a district court usually must
engage a defendant in person where he has expressed dissatisfaction with counsel and has sought
to have him removed.”
        The defendant in Iles had retained an attorney to represent both himself and his codefendant
wife in a tax-fraud case. Id. at 1123. Their attorney later moved to withdraw as counsel because
of a conflict of interest that arose during plea negotiations. At the hearing on the motion, the
attorney advised the district court that the couple had told him that they were financially unable to
meet the fee arrangement, and also that he and Iles had “serious differences of opinions” with
respect to how to prepare for trial. Id. at 1129. The district court subsequently removed the attorney
from representing the wife and, to avoid the fee-arrangement problem, appointed the same attorney
to represent Iles at the government’s expense. Id. at 1129-30. Iles was present at the hearing and
did not object to the resolution of the issue. Id. at 1130.
        On appeal, Iles claimed that he had been denied the right to counsel because the district court
failed to inquire into the source of his dissatisfaction with his attorney. Id. This court, however,
rejected Iles’s argument because he had never actually expressed dissatisfaction with his counsel.
As the court explained:
               At no point did Iles try to “fire” his counsel, ask for new counsel, or
               suggest that he wished to conduct his own defense. Since the district
               court was not put on notice that Iles was dissatisfied with counsel and
               wished to have him removed or to have new counsel, the district
               court had no duty to inquire. The need to bring any serious
               dissatisfaction with counsel to the attention of the district court was
               particularly necessary here since Iles initially retained [counsel], thus
               affirmatively demonstrating his initial confidence in [his lawyer].
Id. at 1131-32 (citations omitted).
         The government argues that Iles is inapposite because, although the attorney in that case was
initially privately retained, the principles enunciated apply only to cases involving the substitution
of appointed counsel. It therefore contends that Iles should be read as an elaboration on the burden
that an indigent defendant bears in demonstrating “good cause” for the substitution.
        The government is correct that Iles, by its terms, addressed the appropriate standards for
inquiring about an indigent defendant’s basis for attempting to substitute appointed counsel. See
Iles, 906 F.2d at 1130 (affirming the principle that “when an indigent defendant makes a timely and
good faith motion requesting that appointed counsel be discharged and new counsel appointed, the
trial court clearly has a responsibility to determine the reasons for defendant’s dissatisfaction with
his current counsel” (alteration omitted)). But this reading ignores the more general principle
underlying Iles, which is that where a district court is on notice of a criminal defendant’s
dissatisfaction with counsel, the court has an affirmative duty to inquire as to the source and nature
of that dissatisfaction—regardless of whether the attorney is court-appointed or privately retained.
See Cottenham v. Jamrog, 248 F. App’x 625, 636 (6th Cir. 2007) (holding, in a habeas case, that a
criminal defendant’s right to counsel was denied where the state court failed to promptly grant a
hearing to investigate the defendant’s repeated objections to representation by an attorney that the
defendant’s family had retained and paid to work on the defendant’s appeal).
No. 05-2484           Benitez v. United States                                                  Page 8


        In sum, appropriate judicial inquiry is triggered only when the defendant apprises the court
of his desire to effect a change in representation by way of “a motion, or something that
approximates such a motion.” Iles, 906 F.2d at 1131 n.8. We must therefore determine whether
Benitez’s statements at the beginning of his sentencing hearing were sufficient to bring his
dissatisfaction to the attention of the district court, thus triggering the court’s affirmative duty to
inquire.
        Benitez argues that Iles is dispositive of his right-to-counsel claim, and we agree. His failure
to explicitly request a new attorney does not negate the conclusion that his statements were
sufficient to trigger the district court’s obligation to inquire into his dissatisfaction with Beason.
Unlike the defendant in Iles, who failed to give any indication to the court that he was not pleased
with his counsel’s performance, both Benitez and Beason informed the district court that Benitez
had “fired” Beason and that Benitez did not want Beason to represent him. These statements were
sufficient to “bring any serious dissatisfaction with counsel to the attention of the district court.”
See Iles, 906 F.2d at 1132; see also id. (distinguishing Brown v. Craven, 424 F.2d 1166 (9th Cir.
1970), a case where the defendant had filed four motions for new counsel and stated his
dissatisfaction with his attorney in open court, but also noting that “[a] defendant, of course, need
not go to these lengths to obtain a colloquy with the court on his dissatisfaction”).
         The district court properly recognized that the record evidences Benitez’s confusion about
the role of his attorney at the sentencing hearing. But that confusion seems to have been grounded
in the scope of his right to counsel, not in whether he wanted Beason to represent him. For example,
in responding to a question by the district court (“[Y]ou do not want Mr. Beason to speak on your
behalf at this time?”), Benitez stated that Beason could “speak, but I don’t want him to represent me
any longer.” (Emphasis added.) The district court, moreover, acknowledged that Benitez did “ask
that his counsel be discharged.” That Benitez—a lay person whose first language is Spanish, not
English—failed to invoke the “magic words” by requesting a new attorney should not be interpreted
as an implicit repudiation of his express, repeated statements that he did not want Beason to
represent him. Cf. United States v. Proctor, 166 F.3d 396, 403 (1st Cir. 1999) (“[T]he triggering
statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the
dialogue between the court and the defendant must result in a clear and unequivocal statement.”
(emphasis in original)).
        Furthermore, the fact that Benitez permitted Beason to speak on his behalf at a later point
in the sentencing hearing does not undermine our conclusion that the district court failed to
appropriately respond to Benitez’s initial indication that he did not wish Beason to represent him.
Rather, the exchange between Benitez and the district court serves to underscore Benitez’s confusion
about the scope of his right to counsel:
               THE COURT: You do not wish Mr. Beason to speak on your behalf;
               is that right?
               DEFENDANT BENITEZ: Am I going to get sentenced still even
               though he won’t represent me?
               ....
               THE COURT: Right, right.
               DEFENDANT BENITEZ: Might as well just have him speak for me,
               then.
               THE COURT: You might as—excuse me?
               THE INTERPRETER: Go ahead and have him speak for me. Go
               ahead and have him speak for me.
No. 05-2484           Benitez v. United States                                                  Page 9


        The district court described this colloquy as Benitez “request[ing] that his counsel . . . speak
on his behalf.” Although this may be true in the most literal sense, it does little more than
demonstrate that the district court was not inclined to delay the proceedings to inquire into Benitez’s
dissatisfaction with Beason’s representation. Benitez and Beason had earlier informed the court that
Benitez did not wish to be represented by Beason. Those statements triggered the court’s obligation
to inquire further. Benitez’s subsequent grant of permission for Beason to speak (after the court
made clear that this would be Benitez’s only possibility of representation) did not provide a remedy
for the court’s prior failure to engage in a colloquy with Benitez. Nor was Benitez’s forced
acquiescence (“You have to answer yes”) in the court’s self-declared interpretation of the record a
waiver of his rights. The court thus failed to ensure that Benitez’s Sixth Amendment right to
counsel of his choice was adequately protected.
         This is not to say, of course, that the district court would have been required to permit
Benitez to substitute counsel or to delay the sentencing hearing. See United States v. Gonzalez-
Lopez, 126 S. Ct. 2557, 2565-66 (2006) (concluding that the defendant’s Sixth Amendment right
to counsel of his choosing was violated, but acknowledging that that right is not absolute and
recognizing that courts have “wide latitude in balancing the right to counsel of choice against the
needs of fairness and against the demands of its calendar”). As discussed above, we review a
district court’s denial of a motion to substitute counsel for an abuse of discretion, considering “the
timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and
whether the conflict between the attorney and client was so great that it resulted in a total lack of
communication preventing an adequate defense.” Iles, 906 F.2d at 1130 n.8.
        Had the district court inquired into Benitez’s statements and made explicit findings, we could
consider whether the court properly exercised its discretion in refusing to postpone the proceedings.
But the record in this case simply does not allow for such an inquiry. See United States v. Thomas,
No. 98-3851, 225 F.3d 660, 2000 WL 799340, at *2 (6th Cir. June 8, 2000) (unpublished)
(remanding the case where the record did not make clear that, in denying the defendant’s motion to
substitute counsel, the district court had discharged its “obligation to inquire” into the factors that
must be considered when balancing defendant’s right to counsel against administrative concerns).
        We therefore conclude that Benitez’s statements were sufficient to trigger the district court’s
duty to inquire into the source and nature of Benitez’s dissatisfaction, and that the court’s failure to
do so violated his Sixth Amendment right to counsel. Because Benitez’s § 2255 petition was
untimely filed in the absence of equitable tolling, we will remand the case to the district court for
a determination of whether Benitez is entitled to such tolling. If he is, then the district court will
need to resentence Benitez at a hearing where there is no dispute about him being properly
represented by counsel.
                                        III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
