U.S. v. Smith

Ct. of Appeals denied motion by defendant’s substitute appellate counsel to recall opinion that decided defendant’s appeal on its merits under circumstances where prior appellate counsel withdrew as counsel on grounds of laboring under potential conflict of interest arising out of counsel being subject to criminal investigation. While defendant argued that recall of opinion was appropriate because prior counsel was laboring under conflict of interest and was ineffective in failing to raise two issues, Dist. Ct. had previously found that prior counsel was not laboring under conflict where he had filed defendant’s appellate court brief prior to being named as subject of criminal investigation. As such, defendant’s only remedy was to file habeas petition if he believed that prior counsel was ineffective. Ct., though, gave current counsel for defendant 30 days to determine whether there were any other issues that could be raised in petition for rehearing.