The defendant is not entitled to more than one counsel except upon his request. Crum v. Hunter, 151 F.2d 359 (C.A. 10), cert. denied, 328 U.S. 850, 66 S.Ct. 1117, 90 L.Ed. 1623. After two attorneys had been appointed for defendant in the present case, the district court was not required to set aside the prior appointment of counsel and appoint new counsel in the absence of a showing of good cause.
The court said no. In Crum v. Hunter, 151 F.2d 359 (10 Cir. 1945), cert. denied, 328 U.S. 850, 66 S.Ct. 1117, 90 L. Ed. 1623 (1946), the court held only that the defendant in a capital case has no right to two counsel unless he requests two. In the instant case, defendant requested two attorneys.
The provision was meant to insure that a sufficient number of attorneys would be appointed so the defense would not suffer from insufficient manpower. See Crum v. Hunter, 10 Cir., 151 F.2d 359 (1945), cert. denied, 328 U.S. 850, 66 S.Ct. 1117, 90 L.Ed. 1623 (1946). If the substance of his request had been that he desired the appointment of additional counsel, then Cunningham essentially would have been invoking the statutory provisions, and additional counsel would have been required.
The general standard to be applied was stated by this court in Beckett v. Hudspeth, 131 F.2d 195 (10th Cir.), to be that the Sixth Amendment, in its guarantee of the assistance of counsel, means the assistance is to be effective, as distinguished from bad faith, sham, mere pretense, or lack of opportunity for conference and preparation. Moss v. Hunter, 167 F.2d 683 (10th Cir.); Hester v. United States, 303 F.2d 47 (10th Cir.); Frand v. United States, 301 F.2d 102 (10th Cir.); Crum v. Hunter, 151 F.2d 359 (10th Cir.); Shepherd v. Hunter, 163 F.2d 872 (10th Cir.); Pierce v. Hudspeth, 126 F.2d 337 (10th Cir.); Merritt v. Hunter, 170 F.2d 739 (10th Cir.); Kinney v. United States, 177 F.2d 895 (10th Cir.). We recently considered the matter in Johnson v. United States, 333 F.2d 371 (10th Cir.).
We believe that the record tends to support the view, which the trial judge no doubt had, that Burstein insisted upon presenting the very matters which he did present or attempted to present when he handled his own defense; and that the difference of opinion which developed between himself and his attorney related to those matters. It has been held that one charged with crime is not deprived of his constitutional right to the effective assistance of counsel merely because counsel assigned to him by the court after an investigation of the facts advised a plea of guilty. Crum v. Hunter, 10 Cir., 151 F.2d 359, certiorari denied 328 U.S. 850, 66 S.Ct. 1117, 90 L. Ed. 1123. Cf. Shepard v. Hunter, 10 Cir., 163 F.2d 872. Furthermore, the court plainly indicated to Burstein that the court was prepared to appoint a different attorney if Burstein so desired. The appellant continued to urge his own wish that he handle the case in his own way.
Moreover, `one who appears before the court with counsel employed for his defense is not deprived of his constitutional right to the assistance of counsel merely because in retrospection he concludes that such representation did not meet his standards of effectiveness.' Moss v. Hunter, 10 Cir., 167 F.2d 683, 684. See also Ex parte Haumesch, 9 Cir., 82 F.2d 558; Crum v. Hunter, 10 Cir., 151 F.2d 359; Shepherd v. Hunter, 10 Cir., 163 F.2d 872."
Moss v. Hunter, 10 Cir., 167 F.2d 683, 684. See also Ex parte Haumesch, 9 Cir., 82 F.2d 558; Crum v. Hunter, 10 Cir., 151 F.2d 359; Shepherd v. Hunter, 10 Cir., 163 F.2d 872. Petitioner's contention that he did not know the nature of the charge against him until after he had entered upon the service of his sentence is clearly refuted by his own testimony.
But, one who appears before the court with counsel employed for his defense is not deprived of his constitutional right to the assistance of counsel merely because in retrospection he concludes that such representation did not meet his standards of effectiveness. See Ex parte Haumesch, 9 Cir., 82 F.2d 558; Crum v. Hunter, 10 Cir., 151 F.2d 359; Shepherd v. Hunter, 10 Cir., 163 F.2d 872. Cf. Pierce v. Hudspeth, 10 Cir., 126 F.2d 337; Tompsett v. State of Ohio, 6 Cir., 146 F.2d 95. Testifying in support of his allegation that he was mentally incompetent when his plea of guilty was entered, petitioner stated that at the time sentence was imposed he was "emotionally unstable" and was on parole from a California court as a "mentally ill person".
"Certainly one charged with crime is not deprived of his constitutional right to the effective assistance of counsel merely because the counsel assigned to him by the court, after an investigation of the facts, advised or even urged him to plead guilty to the charge." Crum v. Hunter, 10 Cir., 151 F.2d 359, 360. The court's finding that petitioner was not deprived of his constitutional right to the assistance of counsel is amply supported by the evidence.
The Court of Appeals for the Tenth Circuit has not, however, squarely addressed the issue. Cf. Crum v. Hunter, 151 F.2d 359, 360-61 (10th Cir. 1945) (interpreting 18 U.S.C. § 563, predecessor to § 3005) (holding that defendant facing death penalty, who did not request a second attorney, consequently, had "no statutory right to more than one counsel"). The majority view is that, once the government declines to seek the death penalty in an eligible case, the matter ceases to be a "capital case" for § 3005 purposes.