Counsel of Choice Is Not Absolute: Tenth Circuit Denies COA Where Indigent Defendant Sought Eleventh-Hour Substitution Without Showing Retained Counsel

Counsel of Choice Is Not Absolute: Tenth Circuit Denies COA Where Indigent Defendant Sought Eleventh-Hour Substitution Without Showing Retained Counsel

Introduction

In United States v. Laskey, No. 25-5087 (10th Cir. Aug. 27, 2025) (unpublished order), the Tenth Circuit denied a federal prisoner’s application for a certificate of appealability (COA) and denied leave to proceed in forma pauperis (IFP) on appeal from the denial of his 28 U.S.C. § 2255 motion. The defendant, Millard Ray Laskey, argued that the trial court violated his Sixth Amendment right to choose his own counsel by refusing a last-minute request to continue the trial and substitute retained counsel. He also alleged ineffective assistance of counsel (IAC) for failing to protect that purported right and for not presenting specific evidence in support of self-defense and suppression/mitigation of statements made while tightly handcuffed.

The decision is a careful application—and reaffirmation—of key Sixth Amendment principles: (1) the counsel-of-choice right belongs to defendants who do not require appointed counsel, (2) even then, the right is not absolute and is subject to a court’s legitimate scheduling and fairness concerns, and (3) on collateral review, a petitioner must make a substantial showing under Slack v. McDaniel that reasonable jurists could debate the district court’s rulings. The court also briefly addressed procedural default in § 2255 practice and explained why it opted to reach the merits despite potential default.

Summary of the Judgment

  • The Tenth Circuit denied a COA, holding that no reasonable jurist could debate the district court’s rejection of Laskey’s Sixth Amendment claims.
  • On the counsel-of-choice claim, the court doubted the right applied to Laskey because he had required appointed counsel and offered only a last-minute, equivocal assertion that he “may” have obtained funds to retain private counsel. Even assuming the right applied, the trial court acted reasonably in denying an eleventh-hour continuance and substitution request where private counsel had not appeared or attempted to appear, appointed counsel was prepared and performing “exemplary[ly],” and the court’s docket would be severely burdened.
  • On the IAC claims, the court held that counsel was not deficient for failing to advance a meritless counsel-of-choice argument, and that counsel had adequately pursued self-defense evidence and suppression/mitigation of the handcuff-related statements; there was no prejudice under Strickland.
  • The court denied IFP because the appeal did not present a reasoned, nonfrivolous argument in law or fact.

Factual and Procedural Background

In 2022, Laskey was indicted on three counts arising from a machete assault on his stepson in Indian Country. He submitted a financial affidavit and received appointed counsel. After two continuances, he sought a third continuance two days before trial, asserting dissatisfaction with appointed counsel and a desire to retain a private attorney. On the morning of trial, he reported having spoken to a prospective attorney who “was supposed” to enter an appearance the prior week, but no appearance had been filed and he had been unable to contact that attorney.

The district court denied the motion, noting its timing, the burden on the court’s calendar, the adequacy of appointed counsel, and the lack of a breakdown in communications. Trial proceeded as scheduled. The jury acquitted on two counts but convicted on one count of assault with a dangerous weapon with intent to do bodily harm in Indian Country; the court imposed a 54-month sentence. On direct appeal, Laskey challenged jurisdiction; the Tenth Circuit affirmed. He then filed a § 2255 motion raising, for the first time, counsel-of-choice and IAC claims; the district court denied relief and denied a COA. This appeal followed.

Detailed Analysis

Precedents Cited and Their Influence

  • Slack v. McDaniel, 529 U.S. 473, 484 (2000): Sets the COA standard—an applicant must show that reasonable jurists could debate the district court’s assessment of constitutional claims. The Tenth Circuit applied Slack to conclude none of Laskey’s claims were debatable.
  • United States v. Gonzalez-Lopez, 548 U.S. 140 (2006): Recognizes the Sixth Amendment “right of a defendant who does not require appointed counsel to choose who will represent him” and deems erroneous deprivation of that right structural error. The Tenth Circuit invoked Gonzalez-Lopez to frame the scope of the counsel-of-choice right and to underscore that the right applies to defendants who can retain counsel.
  • Luis v. United States, 578 U.S. 5 (2016): Emphasizes a defendant’s fair opportunity to secure counsel of choice with legitimate, untainted funds. The court cited Luis for the principle that the Sixth Amendment protects opportunity, not an absolute entitlement, to one’s preferred counsel.
  • United States v. Holloway, 826 F.3d 1237, 1241–42 (10th Cir. 2016): Confirms that the counsel-of-choice right is not absolute and that a conviction is imperiled only when the trial court “unreasonably or arbitrarily interferes” with that right. The Tenth Circuit relied on Holloway to evaluate the reasonableness of the trial court’s denial of a last-minute continuance and substitution.
  • Strickland v. Washington, 466 U.S. 668 (1984): Establishes the two-prong IAC test (deficient performance and prejudice). The court used Strickland to reject both IAC theories: failure to raise a meritless counsel-of-choice claim and alleged evidentiary missteps related to self-defense and statements.
  • United States v. Allen, 16 F.3d 377 (10th Cir. 1994): Addresses procedural default in § 2255 proceedings (cause and prejudice or fundamental miscarriage of justice required) and recognizes courts may reach the merits without sua sponte enforcing default if the government does not raise it. The court noted likely default but decided the claim on the merits because the government did not press the procedural bar.
  • Massaro v. United States, 538 U.S. 500, 509 (2003): Clarifies that IAC claims can be raised in § 2255 proceedings even if not presented on direct appeal. The Tenth Circuit referenced Massaro in discussing why Laskey’s failure to raise the counsel-of-choice issue on direct appeal did not necessarily insulate it from review if ineffectiveness were credibly alleged.
  • United States v. Channon, No. 21-2027, 2022 WL 6872077 (10th Cir. Oct. 12, 2022) (unpublished): Notes that procedural default may be excused where failure to raise an issue stems from constitutionally ineffective counsel. The court cited Channon while explaining why it proceeded to the merits.
  • Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007): States the IFP standard on appeal—there must be a reasoned, nonfrivolous argument in law and fact. The court denied IFP under this standard.
  • United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009): Courts liberally construe pro se filings but do not act as counsel. This guided the court’s reading of Laskey’s submissions.

Legal Reasoning

1) Sixth Amendment Counsel-of-Choice Claim

The court approached the claim in two layers:

  • Threshold applicability. The counsel-of-choice right belongs to defendants “who do not require appointed counsel.” The record showed Laskey initially swore he lacked funds and received appointed counsel. On the morning of trial he stated only that he “may” have obtained funds during pretrial detention, and the supposed retained lawyer neither entered nor attempted to enter an appearance. The court therefore doubted the right applied at all, because Laskey never demonstrated a genuine ability to retain private counsel.
  • Reasonableness of denial of continuance/substitution. Even assuming the right applied, it is not absolute and must be balanced against fairness and the court’s calendar. The district court:
    • faced an eleventh-hour request for a third continuance;
    • had appointed counsel ready and performing “exemplary[ly]”;
    • heard that Laskey could communicate with counsel and no breakdown precluded an adequate defense;
    • confronted significant docket burdens from delay; and
    • had no appearance or concrete commitment from the supposed private lawyer.
    Against that backdrop, the Tenth Circuit concluded no reasonable jurist could debate that the denial was reasonable, not arbitrary or an unreasonable interference with counsel-of-choice.

This analysis tracks Gonzalez-Lopez (defining the right), Luis (fair opportunity, not absolute entitlement), and Holloway (trial courts have “wide latitude” and reversal follows only if the interference is unreasonable or arbitrary).

2) Ineffective Assistance of Counsel

  • Failure to protect counsel-of-choice right. Because the trial court’s ruling was reasonable and likely not even within the scope of the counsel-of-choice right (given Laskey’s indigency and the absence of any actual retained counsel), any challenge would have failed. Counsel is not deficient for omitting meritless arguments. No prejudice follows from omitting a losing issue.
  • Self-defense and handcuff statements. The district court had found that counsel presented ample evidence and argument supporting self-defense, and sought to suppress or mitigate the handcuff-related statements. The Tenth Circuit agreed there was neither deficient performance nor prejudice under Strickland.

3) Procedural Default and Merits Bypass

The court observed that Laskey did not raise the counsel-of-choice issue on direct appeal, which ordinarily triggers procedural default in § 2255 proceedings absent cause and prejudice or a fundamental miscarriage of justice (Allen). The court assumed, for analysis, that Laskey was arguing ineffective assistance as cause (Massaro; Channon) but expressed doubt that cause existed. Importantly, because the government did not press procedural default, the court elected to resolve the claim on the merits—a permissible course under Allen.

4) COA and IFP Standards Applied

  • COA under Slack. The court focused on whether reasonable jurists could debate the district court’s rulings. Finding the counsel-of-choice and IAC holdings plainly correct under settled law, it denied a COA.
  • IFP under Rolland. Without a reasoned, nonfrivolous argument on law or facts, IFP was denied.

Impact and Practical Implications

Although unpublished and nonprecedential (except for law-of-the-case, res judicata, and collateral estoppel), the order has persuasive value and offers clear guidance for future cases in the Tenth Circuit:

  • Indigency and counsel-of-choice. Defendants who accepted appointed counsel must present more than speculative, last-minute assertions to trigger counsel-of-choice protections. Evidence of actual retention (appearance, retainer agreement, or credible proof of funds) matters.
  • Timing is pivotal. Eleventh-hour requests to continue trial to accommodate a yet-to-appear private attorney are disfavored. Courts may deny such requests when appointed counsel is prepared, communications are adequate, and scheduling burdens are significant.
  • Record-building by trial courts. Articulating reasons—such as the court’s calendar, adequacy of current counsel, lack of breakdown in communication—fortifies the exercise of discretion against later collateral challenges.
  • Defense practice pointers.
    • To preserve counsel-of-choice issues, move early, document the retainer or prospective counsel’s readiness to appear, and articulate how continued representation by current counsel will impair an adequate defense.
    • On appeal or § 2255, connect the dots: a viable counsel-of-choice claim demands proof of the right’s applicability (non-indigency or actual retention), unreasonable interference by the court, and prejudice only if not structural (note: wrongful deprivation is structural, but only if the right applies and was actually denied).
    • For IAC claims, identify specific omissions, explain why no reasonable attorney would have acted similarly, and demonstrate a reasonable probability of a different result.
  • Procedural default awareness. Nonjurisdictional claims generally should be raised on direct appeal. If not, petitioners must be prepared to show cause (often IAC) and prejudice, or actual innocence to fit the miscarriage-of-justice gateway. Even if a court bypasses default, the merits will control the outcome when claims are weak.
  • COA gatekeeping function. The decision underscores that COA denials are appropriate where district court rulings are not reasonably debatable; collateral review remains a narrow remedy.

Complex Concepts Simplified

  • Certificate of Appealability (COA): A permission slip required to appeal the denial of a § 2255 motion. Granted only if reasonable jurists could debate the district court’s decision.
  • Counsel of Choice: The Sixth Amendment protects a defendant’s fair opportunity to hire the lawyer they prefer—but only if they are not relying on court-appointed counsel. It is not an absolute right; courts can deny last-minute substitutions to prevent delay or unfairness.
  • Strickland Ineffective Assistance of Counsel: To win, a defendant must show (1) counsel’s performance was objectively unreasonable and (2) a reasonable probability that, without those errors, the outcome would have been different.
  • Procedural Default (in § 2255 cases): If a defendant could have raised a claim on direct appeal but didn’t, they usually can’t raise it in a § 2255 motion unless they show cause and prejudice or that a fundamental miscarriage of justice would occur.
  • In Forma Pauperis (IFP) on Appeal: Permission to appeal without paying fees. Denied if the appeal lacks a reasoned, nonfrivolous legal or factual basis.

Conclusion

United States v. Laskey reinforces core Sixth Amendment doctrines in a practical setting: a defendant who has relied on appointed counsel cannot, at the brink of trial, invoke an absolute right to substitute private counsel absent concrete evidence of retention and without regard to court administration and fairness. The Tenth Circuit’s denial of a COA and IFP reflects the high threshold for collateral relief and the deferential posture toward well-reasoned trial management decisions. For practitioners, the case highlights the importance of early, substantiated motions for substitution, meticulous record-making on counsel adequacy and communication, and the need to preserve appellate issues to avoid procedural default. For courts, it illustrates how explicit findings on timing, docket impact, and counsel performance can decisively support denial of last-minute substitution requests. Overall, Laskey offers a clear, persuasive application of settled law to common but challenging trial dynamics surrounding counsel-of-choice claims.

Key Citations

  • Slack v. McDaniel, 529 U.S. 473 (2000)
  • United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)
  • Luis v. United States, 578 U.S. 5 (2016)
  • United States v. Holloway, 826 F.3d 1237 (10th Cir. 2016)
  • Strickland v. Washington, 466 U.S. 668 (1984)
  • United States v. Allen, 16 F.3d 377 (10th Cir. 1994)
  • Massaro v. United States, 538 U.S. 500 (2003)
  • United States v. Channon, No. 21-2027, 2022 WL 6872077 (10th Cir. Oct. 12, 2022) (unpublished)
  • Rolland v. Primesource Staffing, LLC, 497 F.3d 1077 (10th Cir. 2007)
  • United States v. Pinson, 584 F.3d 972 (10th Cir. 2009)

Note: The Laskey order is unpublished and not binding except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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