Court of Appeals for the Sixth Circuit

Clifford Brinegar, Jr., Appellant-Movant v. United States of America, Appellee-Respondent

1961 U.S. App. LEXIS 4305 · 290 F.2d 656

June 5, 1961 · Docket 14325

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Headnotes

Generated summaries
  1. Headnote 1

    Brinegar asserted that the appointed lawyer was incompetent but offered no specific evidence of deficient performance or prejudice; the district court therefore correctly denied relief under the Strickland standard.

  2. Headnote 2

    The district judge selected a well‑qualified Kentucky attorney and the record contained no particular allegations of incompetence, so the presumption of competence remained intact.

  3. Headnote 3

    The appellate court affirmed the district court’s denial of Brinegar’s petition, finding no abuse of discretion in its handling of counsel matters.

  4. Headnote 4

    The court found that the trial judge did not abuse discretion in denying Brinegar’s request to replace the appointed attorney after the trial had begun.

  5. Headnote 5

    In Brinegar, the district judge appointed a well‑qualified Kentucky lawyer and the appellant offered no specific allegations of incompetence; the appellate court concluded the appointment was proper and affirmed the district court’s decision.

  6. Headnote 6

    The district court denied Brinegar’s request to replace the court‑appointed attorney after trial had begun; the appellate court found no abuse of discretion and affirmed the refusal.

  7. Headnote 7

    Brinegar’s § 2255 petition was denied; the Sixth Circuit held the district judge did not abuse discretion in appointing counsel or rejecting substitution and therefore affirmed the denial.

  8. Headnote 8

    The district judge appointed a well‑qualified attorney two months before trial, and the record contains no specific allegations of incompetence, so the court found no abuse of discretion.

  9. Headnote 9

    The appellant alleged denial of due process because counsel was incompetent, but the court noted there were no specific allegations of incompetence, so no constitutional violation was found.

  10. Headnote 10

    The district judge refused to let the appellant replace the court‑appointed lawyer after trial had begun, and the appellate court found no abuse of discretion in that refusal.

  11. Headnote 11

    The appellant’s § 2255 petition was denied, and the appellate court affirmed the district court’s denial, applying the abuse‑of‑discretion standard to the trial judge’s discretionary rulings.

  12. Headnote 12

    The appellate court ordered that the judgment of the district court be affirmed, concluding the trial judge’s actions were within discretionary authority and not abusive.

  13. Headnote 13

    The court found the appointed lawyer was well‑qualified, noted no specific incompetence allegations, and held competence cannot be judged solely by the time the lawyer spent interviewing the defendant.

  14. Headnote 14

    The court concluded the district judge did not abuse his discretion in refusing to allow the appellant to replace the court‑appointed lawyer after a half‑day of trial.

  15. Headnote 15

    The appellate court affirmed the district court’s denial, finding no abuse of discretion in the appointment of counsel or the refusal to permit a mid‑trial substitution.

Opinion

ORDER.

Clifford Brinegar, Jr., appellant herein, appeals from an order of the United States District Court for the Eastern District of Kentucky, denying his motion for vacation of judgment under section 2255 U.S.C., Title 28.

The appellant claims that he was denied due process of law under the Fifth and Sixth Amendments to the Constitution of the United States, in that the district judge appointed incompetent counsel to represent him and that the district judge refused to allow him to dismiss his appointed counsel and substitute privately-employed counsel after the trial had been in progress for a half day.

The appeal was submitted to the Court upon the motion of the appellant and the briefs and oral arguments of counsel for the parties.

Upon consideration whereof the Court finds that the district judge, approximately two months before the trial, appointed a well qualified, able and reputable member of the bar of Kentucky to represent the appellant; that there are no specific allegations or charges of incompetence in the motion; that the competence of counsel cannot be determined solely on the basis of the amount of time he spent in interviewing the appellant and that the district judge did not abuse his discretion in refusing to allow the appellant to substitute a privately-employed lawyer for the Court-appointed one, after the trial was in progress.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be and it is hereby affirmed.