United States v. Christopher Kelley, 2014 U.S. App. LEXIS 23574

Christopher Kelley, indigent, was appointed a federal public defender after filing a financial affidavit. He later sought substitution, alleging ineffective assistance, poor communication, and failure to pursue pretrial motions.
A magistrate judge held a hearing, addressed Kelley's complaints (including destroyed evidence and missed meetings), rejected substitution, and found the public defender competent; Kelley did not object to that order in district court.
Trial was continued to April 22, 2013. On the first day of trial Kelley appeared in district court, renewed his complaints, and asked either for substitute counsel and a continuance or to proceed pro se.
The district court held an ex parte hearing (prosecutor excluded), heard the public defender’s account, denied a continuance and denied substitution of counsel, and then denied Kelley’s pro se request without conducting an on-the-record Faretta inquiry.
After a three-day trial the jury convicted Kelley on both arson counts. Kelley appealed challenging the rulings on representation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Magistrate judge denial of substitution of counsel	Kelley: magistrate erred; counsel ineffective and communication broke down	Government: magistrate considered complaints; no justifiable dissatisfaction	Waived on appeal (no Rule 59 objections); if reviewed, denial not an abuse of discretion
District court denial of substitution on first day of trial	Kelley: renewed complaints showed breakdown; needed new counsel or continuance	Government: public defender acted in Kelley’s best interests; complaints reflect tactical disagreement	Denial affirmed; no abuse of discretion
Denial of request to proceed pro se without Faretta colloquy	Kelley: asked to represent himself contingent on continuance; request was clear	Government: request was untimely/contingent and court may deny for timeliness or inability to waive	Remanded for clarification: district court did not record a Faretta inquiry; court must explain basis for denial
Failure to preserve objection to magistrate ruling (procedural bar)	Kelley: challenges magistrate’s pretrial order on appeal	Government: Kelley failed to file required objections under Fed. R. Crim. P. 59(a)	Court holds waiver under Rule 59(a); may excuse but declines because merits fail

Koenig v. North Dakota, 755 F.3d 636 (8th Cir. 2014) (indigent defendants must be provided counsel unless waived)
Johnson v. Zerbst, 304 U.S. 458 (1940) (waiver of counsel must be knowing and intelligent)
United States v. Barrow, 287 F.3d 733 (8th Cir. 2002) (appointment of new counsel warranted only for justifiable dissatisfaction)
Hunter v. Delo, 62 F.3d 271 (8th Cir. 1995) (defendant’s unhappiness with tactics not necessarily justifiable dissatisfaction)
United States v. Baisden, 713 F.3d 450 (8th Cir. 2013) (abuse of discretion standard for denial of substitute counsel)
Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self-representation; court must ensure waiver is knowing and intelligent)
United States v. Mosley, 607 F.3d 555 (8th Cir. 2010) (review of denial to proceed pro se and circumstances where district court adoption of magistrate reasoning suffices)
Bilauski v. Steele, 754 F.3d 519 (8th Cir. 2014) (Faretta hearing required when defendant makes a clear and unequivocal request to proceed pro se)
United States v. Cromer, 389 F.3d 662 (6th Cir. 2004) (Faretta procedures required only for clear, unequivocal requests)
United States v. Williams, 897 F.2d 1430 (8th Cir. 1990) (ineffective assistance claims ordinarily raised post-conviction but may be considered on direct appeal when record fully developed)