FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 25, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 05-13978

 05-15703

Non-Argument Calendar

________________________

D. C. Docket No. 03-00131-CR-01-CC-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

SCOTT HINTZ, 

Defendant-Appellant. 

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

 (July 25, 2006)

Before BLACK, BARKETT, and MARCUS, Circuit Judges.

PER CURIAM:
 We discern no abuse of discretion in the district court’s denial of Hintz’s related post- 1

judgment motion seeking depositions and the subpoena of materials connected to the motion to

recuse and for substitute counsel. Cf. Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir.

2002) (reviewing denial of post-judgment motion for abuse of discretion); United States v. Quinn,

123 F.3d 1415, 1425 (11th Cir. 1997)(reviewing denial of defendant’s motion for discovery for

abuse of discretion). And the district court did not abuse its discretion by denying an evidentiary

hearing on these matters. Cf. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996)

(reviewing denial of evidentiary hearing for abuse of discretion). To the extent Hintz argues the

district court should have stayed related proceedings, including Hintz’s direct appeal before this

Court, he never moved, or otherwise requested, a stay in the district court. We decline to consider

his arguments as they are raised for the first time on appeal and they do not fall within any of the

exceptions we have recognized to the rule that we will not consider issues not raised in the district

court first. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir.

2004).

2

Scott Hintz, proceeding pro se, appeals the district court’s denial of his

motion to recuse a magistrate judge and appoint substitute counsel. On appeal, 1

Hintz argues that the district court violated his constitutional rights by denying his

motion as moot after allegedly delaying its ruling on the motion for approximately

six months, while failing to stay related court proceedings, including his direct

appeal in this Court. We affirm.

We review the denial of a motion to recuse for abuse of discretion. See

United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). We likewise review

the denial of a motion for substitute counsel for abuse of discretion. See United

States v. Berger, 375 F.3d 1223, 1226 (11th Cir. 2004).

After pleading guilty to bank fraud, in violation of 18 U.S.C. § 1344,

pursuant to a written plea agreement, Hintz was sentenced to a 57-month term of

imprisonment. Although then represented by counsel, Hintz filed a pro se notice of
Anders v. California, 386 U.S. 738 (1967). 2

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appeal and a pro se motion for appointment of new counsel. After a hearing, the

district court granted Hintz’s motion for appointment of new counsel, and in June

2004, a magistrate judge appointed Lynn Fant as Hintz’s attorney. About six

months later, in December 2004, while his direct appeal was pending in this Court,

Hintz filed a pro se motion to recuse the magistrate judge and a motion for

substitute counsel. In support of recusal, Hintz stated that he had prior business

dealings with the magistrate judge and his family. Hintz indicated that the

magistrate judge had told Hintz to give him (the magistrate judge) personal

property so that the criminal investigation would “go easier.” In support of his

motion for new counsel, Hintz asserted that Fant had refused to consult with him or

allow him to assist in preparing the direct appeal and had filed a motion to

withdraw and Anders brief alleging that there were no issues of arguable merit. 2

On January 14, 2005, we granted Fant’s motion to withdraw, stating “[o]ur

independent review of the entire record reveals that counsel’s assessment of the

relative merit of the appeal is correct.” Based on our independent review,

revealing no issues of arguable merit, we granted the motion to withdraw and

affirmed Hintz’s conviction and sentence. Thereafter, in March and April 2005,

Hintz filed affidavits in support of his motion for recusal and substitution of
4

counsel. The following month, the district court issued an order indicating that the

motion to recuse was untimely since Hintz’s court-appointed attorney had already

fulfilled her responsibility. Accordingly, the district court denied the motion as

moot. Hintz then moved for reconsideration and filed this appeal. The district

court denied reconsideration, indicating that the motion to recuse was moot

because (1) the only issue referred to the magistrate judge was the appointment of

counsel for Hintz’s appeal and there were no further issues pending before the

magistrate judge; and (2) this Court had affirmed Hintz’s conviction and sentence

and had allowed Fant to withdraw.

On appeal, Hintz argues that his motion for recusal and substitute counsel

was not moot because it affected the proceedings in his direct appeal. More

specifically, Hintz asserts that he was “forced to use allegedly conflicted counsel”

and was deprived of any counsel after we granted counsel’s motion to withdraw

and affirmed his conviction and sentence. We are unpersuaded.

Although an indigent criminal defendant has a right to be represented by

counsel, he does not have a right to be represented by a particular lawyer, or to

demand a different appointed lawyer, except for good cause. Thomas v.

Wainwright, 767 F.2d 738, 742 (11th Cir. 1985). “A federal court is without

power to decide moot questions or to give advisory opinions which cannot affect
This appeal implicates none of the exceptions to the mootness doctrine. See B&B Chem. 3

Co., Inc. v. U.S. E.P.A., 806 F.2d 987, 990 (11th Cir. 1986) (discussing exceptions). 

5

the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U.S.

41, 42 (1943). “Generally, an action is considered moot when it no longer presents

a justiciable controversy because any determination of the matter will have no

practical effect on the parties . . .” Connell v. Bowen, 797 F.2d 927, 929 (11th Cir.

1986).3

Here, the district court did not abuse its discretion or violate Hintz’s

constitutional rights by denying his motions as moot because this Court had

affirmed his conviction and sentence at the time of the district court’s decision. In

affirming his conviction and sentence and granting counsel’s motion to withdraw,

we conducted an independent review of the record and discerned no issues of

arguable merit. Accordingly, Hintz’s request for a new attorney -- the only matter

before the magistrate judge -- was moot as there were no viable issues for our

review, if raised by Fant or another attorney. Finally, Hintz has shown no abuse of

discretion or violation of his rights as a result of the short time that lapsed between

the filing of his motions and the district court’s decisions, particularly since Hintz

continued to file additional pleadings in support of these motions and for the

court’s consideration prior to its decision. 

AFFIRMED.