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United States v. Miller

United States District Court, Northern District of Indiana, South Bend Division

December 11, 2014

UNITED STATES OF AMERICA
v.
JEFFERY PAUL MILLER

OPINION AND ORDER

Robert L. Miller, Jr. Judge United States District Court

This matter is before the court on attorney Fred Hains’ motion to withdraw his appearance on behalf of the defendant Jeffery Miller [Doc. No. 42], and on Mr. Miller’s requests to stay his transfer to another correctional facility pending appointment of new counsel and to hold a hearing on his motion to vacate the sentence [Doc. No. 43].

Mr. Miller’s case is on appeal, and his retained counsel has a continuing obligation to represent him on appeal “unless specifically relieved by the court of appeals upon a motion to withdraw.” Circuit Rule 51. Mr. Miller hasn’t requested leave to proceed in forma pauperis or demonstrated an inability to pay the fees and costs associated with his appeal, and his motion to vacate has been dismissed (see Doc. No. 44), obviating the need for a hearing. After judgment has been entered, only the court of appeals can allow defense counsel to withdraw or appoint new counsel for purposes of an appeal. United States v. Flowers, 789 F.2d 569, 570 (7th Cir.1986) (per curiam ); accord Corral v. United States, 498 F.3d 470, 474 (7th Cir.2007); Circuit Rule 51.

While the court “may recommend to the Attorney General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal, ” Fed. R. Crim. P. 38(b)(2), it declines to do so in this case for the reasons stated in its order of December 11 dismissing Mr. Miller’s motion to vacate [Doc. No. 44].

For the foregoing reasons, Mr. Miller’s requests for a placement recommendation and for a hearing on his motion to vacate the sentence [Doc. No. 43] are DENIED, and the Clerk of Court is DIRECTED to transfer the pending motion to withdraw Mr. Hains’ appearance [Doc. No. 42] to the Seventh Circuit Court of Appeals.

SO ORDERED.


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