United States District Court, N.D. California
ORDER DENYING AS MOOT MOTION FOR LEAVE TO SEEK
RECONSIDERATION OF ORDER DENYING REQUEST TO DISCHARGE
RETAINED COUNSEL AND APPOINT NEW COUNSEL
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
Kwok Cheung Chow seeks leave to file a motion for
reconsideration of the Court’s June 15, 2016 ruling
granting in part and denying in part the motion to withdraw
filed by prior retained counsel J. Tony Serra, Curtis L.
Briggs, and Tyler R. Smith. See Mot. for
Reconsideration (dkt. 1522); Motion Hearing of June 15, 2016
(dkt. 1480); Mot. to Withdraw (dkt. 1458). Chow is correct
that a “difference in . . . law exists from that which
was presented to the Court before entry of the interlocutory
order for which reconsideration is sought, ” but not
that the difference is “material, ” as required
by the Local Rules. See Mot. for Reconsideration at
3-4; Civ. L. R. 7-9(b)(1). Neither Chow’s prior counsel
nor his present counsel, who specially appeared for Chow at
the June 15, 2016 hearing, referenced United States v.
Rivera-Corona, 618 F.3d 976 (9th Cir. 2010), or
United States v. Brown, 785 F.3d 1337 (9th Cir.
2016), in support of the June 15, 2016 motion to withdraw.
The newly cited authority is not material, however, because
the Motion is moot. The Court has already provided Chow with
the relief that he sought at the June 15, 2016 hearing: prior
counsel is out.
argues, however, that the Court “should appoint Mr.
Chow new counsel and permit newly appointed counsel to file
an amended new trial motion.” Mot. for Reconsideration
at 7. Neither remedy is appropriate.
although the Court has already entered an order permitting
present counsel to substitute into the case, see
Substitution of Counsel (dkt. 1516), Chow has no right to
have present counsel appointed, see Rivera-Corona,
618 F.3d at 979 (“Indigent defendants have a
constitutional right to effective counsel, but not to have a
specific lawyer appointed by the court and paid for by the
public.”); Brown, 785 F.3d at 1343 (same). The
Northern District of California’s General Order No. 2
provides that “If the Federal Public Defender cannot
accept an appointment, the Court shall select a panel
attorney who is willing to take the representation.”
General Order No. 2 at 6. The court is to appoint panel
attorneys “on a strict rotational basis.”
Id. Non-panel attorneys may be appointed “only
in exceptional circumstances” “in the interest of
justice, judicial economy or continuity of
representation.” Id. Present counsel is not a
panel attorney and has made no showing of any exceptional
circumstance. Moreover, present counsel represented to the
Court that he would be representing Chow pro bono. He can
continue to do so.
it does not follow from Rivera-Corona or
Brown that Chow’s entitlement to new counsel
means that Chow is also entitled to have his new counsel
re-file previously adjudicated motions. As present counsel
concedes, at the time of the June 15, 2016 hearing on the
motion to withdraw, the Court had already denied the motion
for a new trial filed by Chow’s prior counsel.
See Mot. to Reconsider at 8; Order Denying Motion
for New Trial (dkt. 1454) (filed June 2, 2016). Even if the Court
had allowed present counsel to substitute in on June 15,
2016, the Court would not have permitted present
counsel to file a new motion for a new trial. Nor may present
counsel do so now. Chow may not have a second bite at the
apple. That present counsel wishes “to file a new trial
motion based on . . . prior counsel’s ineffective
representation” is not compelling. See Mot. to
Reconsider at 9. The Ninth Circuit has explained that such a
claim is “more appropriately reserved for habeas corpus
proceedings, where facts outside the record, but necessary to
the disposition of the claim, may be fully developed.”
See United States v. Laughlin, 933 F.2d 786, 788
(9th Cir. 1991). Nothing will prevent Chow from including an
ineffective assistance claim in an eventual habeas petition
if he wishes to do so.
foregoing reasons, the Motion for Reconsideration is DENIED
 The Court’s ruling permitted
Briggs to withdraw but denied the motion as to Smith and
Serra. The Court provided further explanation for its ruling
in a written order, and filed that order under seal because
it cited extensively to attorney-client communications and to
the under seal portions of the June 15, 2016 motion
At the June 15, 2016 hearing, the Court
noted that there were three motions on which briefing was not
complete: the motion to dismiss for outrageous government
conduct, the motion to transfer, and the motion for
reconsideration of the Court’s order on the motion for
disqualification. Present counsel ...