7th Circuit orders new defense counsel

In an order handed down late Monday afternoon, the 7th Circuit Court of Appeals relieved a court-appointed defense counsel from representing his client and will appoint new counsel in a future order.

In United States of America v. Shaaban Hafiz Ahmad Ali Shaaban, No. 06-2801, Shaaban had been convicted in the Southern District of Indiana of various offenses related to trying to sell the names of CIA agents working covertly in Iraq to the Iraqi Intelligence Service. Shaaban was sentenced to 160 months in prison.

He appealed, but his appointed counsel sought to withdraw because he believed any issue raised on appeal would be frivolous. The 7th Circuit Court denied the motion and ordered counsel to address whether the District Court miscalculated the guideline range to sentence Shaaban.

Just before the 7th Circuit affirmed the sentence, the defense counsel sent a letter to Shaaban stating if the appeal was denied, the counsel would "argue for a rehearing and the appeal would not be final until rehearing were denied." Shaaban received another letter from his counsel just after the deadline to file a petition for rehearing lapsed, saying his sentence had been affirmed, but counsel made no mention of filing for a rehearing.

Shaaban filed a motion to recall the mandate because he believed his attorney did not follow through on his promise to file a rehearing request and Shaaban should be allowed to file one, even though the deadline had passed.

The appointed counsel was ordered to respond to the motion and stated he believed the affirmation and decision of the 7th Circuit on the case left him with only a frivolous appeal. He conceded he erred in not explaining to Shaaban his reasons for not filing for a rehearing and would file a petition for rehearing if the court deemed it necessary.

But the federal appellate court relieved the appointed counsel of his duties, finding he failed to communicate with Shaaban and already formed an opinion that the petition for rehearing was not necessary. In order to ensure full protection of Shaaban's right to counsel, new counsel will be appointed in a separate order, wrote Judge Kenneth Ripple. The newly appointed counsel shall file either a petition for rehearing or a motion to withdraw on the ground that any such petition would be frivolous and must do so within 30 days of appointment.

If the new counsel wants to withdraw because no nonfrivolous issue can be raised in a petition for rehearing, then Shaaban can file a response pursuant to 7th Circuit Rule 51(b).