Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

Louis Porter contends that the denial of his motions for a continuance and for withdrawal of counsel was an abuse of discretion, violated his due process rights, and denied him the right to the effective assistance of counsel. We affirm.

I. Abuse of Discretion.

When reviewing the denial of a continuance we consider (1) the extent of appellant's diligence in his efforts to ready his defense prior to the date set for trial; (2) how likely it is that the need for a continuance could have been met if the continuance had been granted; (3) the extent to which granting the continuance would have inconvenienced the court and the opposing party including its witnesses; (4) the extent to which the appellant might have suffered harm as a result of the district court's denial. United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985). Porter argues that these four factors establish that the district court abused its discretion in denying his motion for a continuance. An abuse of discretion exists when the district court actions are arbitrary or unreasonable. Flynt, 756 F.2d at 1358.

a. Diligence

Porter argues that the diligence factor weighs in his favor because his attorney, Mr. Martin, brought his inability to communicate with Porter to the attention of the court as soon as it became apparent. Martin also attempted to secure alternate counsel the weekend before trial. However, we find that Porter has not been diligent in attempting to prepare his case. During the in camera hearing, Porter stated: "Mr. Martin has informed me that there is the possibility of me receiving a continuance if--if the--if I was in an emotional state that inhibited us from--or that inhibited me from communicating with him. And if that's the only alternative that I have, I just don't feel comfortable with him." Porter has attempted to stymy his attorney in an attempt to delay justice. The diligence factor weighs heavily in the district court's favor.

b. Usefulness of the Continuance.

Porter argues that because a continuance would have allowed him to obtain substitute counsel with whom the communication problem would not have existed, the continuance would have served a useful purpose. Martin represented to the court that a week would be sufficient to allow another appointed counsel to be ready to try this case. However, the district court felt that Martin was a capable attorney and had performed quite proficiently. The court further stated that appointing another attorney for Porter would not improve the quality of Porter's representation. There is no indication from the record that Porter would speak with a second attorney any more than he has spoken with Martin. Therefore, this factor also favors the ruling of the district court.

c. Inconvenience

Porter argues there was little or no inconvenience to the trial court because there were only three witnesses for the trial, all of whom lived in the local area. Porter also asserts that the trial was short and could be easily rescheduled. The timing of this motion is crucial because it is well established in this circuit that "a trial court properly acts within its discretion when it refuses to allow the substitution of counsel on the eve of trial" if the substitution would require a continuance. United States v. Michelson, 559 F.2d 567, 572 (9th Cir. 1977); United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Porter's motion to continue the trial was made on the morning trial was scheduled to commence. The Court had a jury ready to hear this case. The witnesses and the government were prepared to go forward. It would have been inconvenient to reschedule this trial. Therefore, this factor further weighs in favor of the trial court.

d. Prejudice.

Porter argues he was prejudiced by the inability to communicate with Martin and to prepare his defense. However, a review of the record demonstrates that the communication problem diminished as the trial progressed. Porter did testify and Martin adequately presented Porter's story to the jury. Martin also effectively cross-examined Ms. Kinlow, the prosecution's chief witness. The court also indicated that it would allow Porter time to communicate with counsel during the noon hour and that evening. The trial court further indicated that it would consider a continuance if problems arose during the trial. No request for a continuance was made. Therefore, this factor favors the district court's ruling.

Because these factors favor the district court's ruling, we hold that the district court did not abuse its discretion in denying Porter's motion for a continuance.

II. Due Process Challenge.

Porter argues that the district court's denial of his motion denied him due process. Refusal to allow a substitution of attorneys when a defendant and his client are embroiled in an irreconcilable conflict may amount to denial of the defendant's right to effective assistance of counsel. McClendon, 782 F.2d at 789. The appellate court looks at the timeliness of the motion to dismiss counsel, the adequacy of the court's inquiry into the defendant's complaint and whether the conflict was so great that it resulted in a total lack of communication preventing an adequate defense. Id.

The district court's actions were proper because Porter presented his motion to the trial court on the eve of trial. "It is within the trial judge's discretion to deny a motion to substitute [or withdraw] made during or on the eve of trial if the substitution [or withdrawal] would require a continuance." McClendon, 782 F.2d at 789. Therefore, the court's action was proper.

The district court conducted a lengthy in camera hearing and heard from Porter. The court concluded that Porter had not presented an adequate case of an irreconcilable conflict. Therefore, the court conducted an adequate hearing on this matter.

Finally, this case simply does not present an irreconcilable conflict. The record indicates that Porter did not want to talk to his attorney in an attempt to delay the proceedings. His reason for the "conflict" was that his attorney did not act quickly enough to get him out of jail. The record of the trial also demonstrates that Martin was well prepared for argument and cross-examination. Therefore, Porter has not established a violation of due process.

III. Ineffective Assistance of Counsel.

Porter's final argument was that he was denied effective assistance of counsel because he could not speak with his attorney. Porter must show that Martin's "performance was deficient. Second, [Porter] must show that his counsel's deficient performance prejudiced his defense." Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989). We indulge a " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [.]' " Id. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Martin effectively presented Porter's testimony on direct and effectively cross-examined the witnesses presented against him. We cannot say either that Martin's conduct was deficient or that Martin's performance prejudiced Porter's defense. Therefore Porter's ineffective assistance of counsel claim must fail.

AFFIRMED.