290 F2d 656 Brinegar v. United States

290 F.2d 656

Clifford BRINEGAR, Jr., Appellant-Movant,
UNITED STATES of America, Appellee-Respondent.

No. 14325.

United States Court of Appeals Sixth Circuit.

June 5, 1961.

Robert F. Greene Burlington, Ky., for appellant.

John W. Morgan, Asst. U.S. Atty., Lexington, Ky., for appellee, Jean L. Auxier, U.S. Atty., Lexington, Ky., on the brief.

Before McALLISTER, CECIL and WEICK, Circuit Judges.


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Clifford Brinegar, Jr., appellant herein, appeals from an order of the United States District Court forthe Eastern District of Kentucky, denying his motion for vacation of judgment under section 2255 U.S.C., Title 28.


The appellant claims that he was denied due process of law under the Fifth and Sixth Amendments to the Constitution of the United States, in that the district judge appointed incompetent counsel to represent him and that the district judge refused to allow him to dismiss his appointed counsel and substitute privately-employed counsel after the trial had been in progress for a half day.


The appeal was submitted to the Court upon the motion of the appellant and the briefs and oral arguments of counsel for the parties.


Upon consideration whereof the Court finds that the district judge, approximately two months before the trial, appointed a well qualified, able and reputable member of the bar of Kentucky to represent the appellant; that there are no specific allegations or charges of incompetence competence in the motion; that the competence of counsel cannot be determined soley on the basis of the amount of time he spent in interviewing the appellant and that the district judge did not abuse his discretion in refusing to allow the appellant to substitute a privately-employed lawyer for the Court-appointed one, after the trial was in progress.


It is therefore ordered, adjudged and decreed that the judgment of the District Court be and it is hereby affirmed.