RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0147p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ALBERTO RODRIGUEZ BENITEZ,

 Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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No. 05-2484

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

Nos. 03-00088; 04-00627—Robert Holmes Bell, Chief District Judge.

Submitted: March 11, 2008

Decided and Filed: April 9, 2008 

Before: KEITH, CLAY, and GILMAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christopher P. Yates, YATES, LaGRAND & DENENFELD, Grand Rapids,

Michigan, for Appellant. B. Rene Shekmer, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. 

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Alberto Rodriguez Benitez pled guilty to one

count of conspiracy to distribute more than 100 grams of marijuana and one count of conspiracy to

launder money. He was subsequently sentenced to two concurrent terms of 120 months of

imprisonment, four years of supervised release, a $10,000 fine, and a $200 special assessment.

Benitez did not pursue a direct appeal. He did, however, file a motion to vacate his sentence

pursuant to 28 U.S.C. § 2255. Benitez raised five grounds for relief, all of which related to his

counsel’s performance at sentencing and to the sentence itself. One of the claims raised by Benitez

was that he was denied his Sixth Amendment right to counsel during the sentencing hearing.

The district court dismissed Benitez’s § 2255 motion on the basis that the motion was not

timely filed, but did not consider whether Benitez was entitled to equitable tolling. In any event, the

court did not rest its decision on the lack of timeliness. It instead proceeded to explain why

Benitez’s claims were without merit. For the reasons set forth below, we REVERSE the judgment

of the district court and REMAND the case for further proceedings consistent with this opinion.

1
No. 05-2484 Benitez v. United States Page 2

I. BACKGROUND

A. Factual background

In May of 2003, Benitez pled guilty to one count of conspiracy to distribute more than 100

grams of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii), and one count

of conspiracy to launder money, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h).

Benitez’s sentencing hearing took place in August of 2003. Although there was no interpreter

present at Benitez’s plea hearing, an interpreter was on hand at his sentencing hearing in case

Benitez did not understand something that was said.

At the sentencing hearing, the district court considered the government’s motion for a

downward departure based on Benitez’s cooperation in the investigation of the drug conspiracy in

which he participated. The government outlined the testimony that Benitez had given at the trial of

two coconspirators. Benitez’s attorney, John Beason, was then asked if he wished to be heard.

Beason replied: “Your honor, before I—I would inform the Court that I was told last night that I

was fired from this case and he wished me not to represent him any longer. So am I to still speak

on his behalf if the Court knows that fact?” The court responded by asking Benitez how he wished

to proceed. After Benitez conferred with the interpreter, the interpreter said that Benitez did not

want Beason to represent him. Benitez also declined to speak for himself, indicating through the

interpreter that “he felt very upset, very nervous.”

The district court then asked whether Benitez wanted Beason “to speak on [his] behalf at this

time.” Benitez replied “no,” and his interpreter followed up by stating: “Well, he can speak, but

I don’t want him to represent me any longer.” The court explained that by speaking, “he would be

representing you and telling what’s good about you and your position here.” Benitez responded

through the interpreter, saying: “No, I do not want him to represent me.”

The court then asked Beason to remain where he was, and addressed Beason directly: “I

want you here for just a little while longer. I want the record to reflect that you were on your feet

and you were prepared to make comments, presumably—may I presume that they were in support

of the government’s motion for a downward departure for your client?” Beason replied: “Very

much so, Your Honor.”

The district court proceeded by granting the government’s downward-departure motion. It

then asked Benitez if he wanted to say anything on his own behalf before the court imposed the

actual sentence. Benitez said: “I don’t feel good. I can’t speak.” At this point, the following

colloquy between the court and Benitez took place:

THE COURT: You do not wish Mr. Beason to speak on your behalf;

is that right?

DEFENDANT BENITEZ: Am I going to get sentenced still even

though he won’t represent me? 

. . . .

THE COURT: Right, right.

DEFENDANT BENITEZ: Might as well just have him speak for me,

then.

THE COURT: You might as—excuse me?

THE INTERPRETER: Go ahead and have him speak for me. Go

ahead and have him speak for me.

The district court concluded the hearing by sentencing Benitez to two 120-month terms of

imprisonment, to be served concurrently, in addition to four years of supervised release, a $10,000
No. 05-2484 Benitez v. United States Page 3

fine, and a $200 special assessment. Beason then requested that he be relieved from representing

Benitez on appeal, reasoning that “if he should choose to appeal I know . . . he’s going to allege

ineffective assistance of counsel.” The court granted the request, but also stated: “I want the record

to reflect that you have, with Mr. Benitez’s permission, spoken on his behalf, accepted the papers,

and turned those papers over to him and executed your responsibilities as Mr. Benitez permitted you

in this proceeding this morning.” At this point, the following exchange occurred: 

THE COURT: Is that correct, Mr. Benitez?

MR. BEASON: You have to answer yes.

DEFENDANT BENITEZ: Yes. 

B. Procedural background

Benitez did not pursue a direct appeal. But on September 17, 2004, acting through counsel,

he filed a motion for relief from judgment pursuant to 28 U.S.C. § 2255. Benitez argued that (1) he

was deprived of his Sixth Amendment right to counsel during the sentencing hearing, (2) he received

ineffective assistance of counsel “during the phase of the sentencing hearing for which he had

counsel,” (3) he was deprived of his Fifth Amendment right to due process of law when the district

court imposed a sentence while operating under a misapprehension of law, (4) his sentence was

calculated in violation of Blakely v. Washington, 542 U.S. 296 (2004), and (5) he received

ineffective assistance of counsel because Beason failed to file a timely notice of appeal.

The district court denied Benitez’s motion on the basis that the same was barred by the oneyear statute of limitations contained in 28 U.S.C. § 2255. It also noted that “even if [it] were to

consider the merits of Benitez’s claims for relief, the motion would be denied.” With respect to

Benitez’s claim that he was denied the right to counsel during his sentencing hearing, the district

court concluded that although “the record evidences some confusion on Benitez’s part as to his

counsel’s role at sentencing, there is no evidence that he was without counsel during the

proceeding.” The court further determined that all of Benitez’s other claims for relief were

“completely without merit.”

Benitez subsequently filed a motion to alter or amend the judgment pursuant to Rule 59(e)

of the Federal Rules of Civil Procedure, contending, among other things, that he was entitled to

equitable tolling based on the failure of his counsel to timely file his § 2255 motion. The district

court denied the motion, concluding that “even assuming equitable tolling applies, the outcome of

the case does not change” because Benitez’s claims lacked merit. Nevertheless, the court issued a

COA on Benitez’s right-to-counsel claim. This court subsequently declined to expand the COA as

to Benitez’s claim that he received ineffective assistance of counsel when Beason failed to file a

notice of appeal after Benitez was sentenced. Benitez’s claim regarding his right to counsel during

his sentencing hearing is thus the sole issue presently before us.

II. ANALYSIS

A. Statute of limitations

A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitations,

with the limitations period beginning to run “from the latest of” four possible dates. The only two

that are potentially relevant in the present case are 

the date on which the judgment of conviction becomes final; [or] the

date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on

collateral review . . . .
No. 05-2484 Benitez v. United States Page 4

28 U.S.C. § 2255(f)(1)&(3).

Although Benitez’s claim based on Blakely v. Washington, 542 U.S. 296 (2004), is not before

us, we note that any sentencing claim would now be governed by United States v. Booker, 543 U.S.

220 (2005). Moreover, Booker has not been made retroactively applicable to cases on collateral

review. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). 

Benitez’s judgment became final on September 15, 2003, the date that marked the expiration

of the 10-day time period (plus intervening weekends and a federal holiday) when he could have

filed a timely appeal of his August 29, 2003 judgment and commitment order. See Fed. R. App. P.

4(b)(1); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (concluding that,

as a general matter, the time limitation for appealing a criminal judgment contained in Rule 4(b)(1)

of the Federal Rules of Appellate Procedure governs when a judgment of conviction becomes final

for the purposes of 28 U.S.C. § 2255(f)(1)). Benitez filed his § 2255 motion on September 17,

2004, two days after the limitations period lapsed. The district court therefore determined that

Benitez’s motion was untimely.

As the government points out, the district court’s “primary ruling of time barred has never

been found to be in error.” Neither the parties nor the district court, however, addressed the merits

of whether Benitez is entitled to equitable tolling, despite its availability where a motion to vacate

is filed after the one-year limitations period contained in 28 U.S.C. § 2255. See Dunlap v. United

States, 250 F.3d 1001, 1004-05 (6th Cir. 2001) (holding that § 2255(f) is not jurisdictional in nature

and that equitable tolling is therefore available). The district court instead concluded that Benitez

would not be entitled to relief even if it assumed that equitable tolling applied. Nevertheless, it

issued a COA on the issue of whether Benitez was denied the right to counsel at his sentencing

hearing.

If Benitez’s right-to-counsel claim were clearly without merit, we could ignore the fact that

his § 2255 motion was untimely filed. See Pough v. United States, 442 F.3d 959, 965 (6th Cir.

2006) (concluding that the equitable-tolling analysis can be bypassed where the merits of a case “can

be resolved in a straightforward manner and will also result in the denial of [the § 2255] motion”).

But as discussed below, we do not believe that Benitez’s right-to-counsel claim can be so easily

disposed of on the merits. 

B. Right to counsel

1. Standard of review

“A prisoner in custody under sentence of a [federal] court . . . claiming the right to be

released upon the ground that the sentence was imposed in violation of the Constitution . . . may

move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C.

§ 2255(a). We review a district court’s denial of a § 2255 motion de novo, but examine its findings

of fact under the clearly erroneous standard of review. Mallett v. United States, 334 F.3d 491, 497

(6th Cir. 2003). 

A defendant facing the possibility of incarceration has a Sixth Amendment right to counsel

at all “critical stages” of the criminal process, and a sentencing hearing is one type of “‘critical

stage[]’ at which the right to counsel attaches.” King v. Bobby, 433 F.3d 483, 490 (6th Cir. 2006)

(quoting United States v. Wade, 388 U.S. 218, 224 (1967)). The right to counsel can be waived, but

only where such waiver is “knowing, voluntary, and intelligent.” Id. (citing Johnson v. Zerbst, 304

U.S. 458, 464 (1938)). A violation of a defendant’s right to counsel at a critical stage is a structural

error, and is therefore not subject to an analysis of whether the error was harmless or prejudicial.

United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2566 (2006) (concluding that a Sixth Amendment

violation of the right to counsel of choice “is not subject to harmless-error analysis”); United States
No. 05-2484 Benitez v. United States Page 5

v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005) (noting that a defendant is not required to demonstrate

prejudice when there is a “structural error,” such as a violation of the right to counsel). 

Benitez argues that he was denied the right to counsel because, despite having expressed

dissatisfaction with Beason and informing the district court that he did not want Beason to represent

him, the district court failed to “ascertain the basis for Mr. Benitez’s dissatisfaction.” He also claims

that Beason “abdicated his responsibility to comment on the government’s downward departure

motion,” and that the district court erred by failing to “take steps to ensure that Mr. Benitez was

assisted by counsel in making an argument for a more extensive downward departure.” 

In response, the government contends that Benitez “had counsel with him during the entire

sentencing proceeding,” and that Beason was “fully prepared to . . . address each of the items

relative to sentencing, including the [government’s downward-departure motion].” The government

thus contends that Benitez’s right to counsel is not even at issue in the present case. It instead

frames the “real issue” as whether Benitez “has a right to make his own decisions and to determine

when his counsel will or will not speak on his behalf.” In reviewing Benitez’s § 2255 motion, the

district court took a similar view: 

It is . . . beyond question that Benitez had counsel during the

sentencing phase of his proceeding. Benitez’s counsel was prepared

and willing to speak on Benitez’s behalf regarding the downward

departure motion, however, when called upon to do so, Benitez

prevented his counsel from speaking and asked that his counsel be

discharged. Benitez did not indicate that he wanted new counsel,

never asked the Court to appoint another attorney, never asked to

represent himself, and did not ask for an adjournment to find another

counsel. . . . While the record evidences some confusion on Benitez’s

part as to his counsel’s role at sentencing, there is no evidence that he

was without counsel during the proceeding. 

Contrary to the district court’s analysis, we do not believe that the fact that Beason was

present at the sentencing hearing and “prepared and willing to speak on Benitez’s behalf” is

dispositive of Benitez’s claim. We note, moreover, that the facts of this case do not fit comfortably

within the various strands of existing Sixth Amendment jurisprudence. In particular, what makes

this case unique—and therefore hard to categorize—is that Benitez (1) was represented by privately

retained as opposed to court-appointed counsel (although some evidence in the record suggests that

he may have actually been eligible for a court-appointed attorney), (2) did not affirmatively request

new counsel or to represent himself, but did clearly state at the beginning of the hearing that he did

not want Beason to represent him, and (3) at a later point in the hearing authorized Beason to speak

on his behalf. These facts, when taken together, led both the government and the district court to

conclude that Benitez’s right to counsel was not implicated.

The district court, however, failed to recognize that the Sixth Amendment is implicated

where a criminal defendant seeks to change the status of his representation. This kind of “change”

of status usually arises in one of two ways: (1) a defendant seeks to invoke his right to selfrepresentation, see, e.g., United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004) (concluding

that the defendant had successfully invoked the right to self-representation where he knowingly and

intelligently waived the right to counsel), or (2) a defendant seeks to substitute his counsel, see, e.g., United States v. Green, 388 F.3d 918, 922 (6th Cir. 2004) (holding that a defendant’s “persistent,

unreasonable demand for dismissal of counsel and appointment of new counsel functioned as a valid

waiver of the right to counsel”).
No. 05-2484 Benitez v. United States Page 6

2. Self representation

A defendant seeking to assert his right to self-representation must take affirmative steps to

apprise the court of his desire to proceed in this manner. United States v. Cromer, 389 F.3d 662, 682

(6th Cir. 2004) (holding that the district court was not required to warn the defendant about the

consequences of waiving the right to counsel where the defendant personally participated in the

cross-examination of a witness but “continued to receive substantial assistance of counsel,”

concluding that a defendant must “clearly and unequivocally assert[] his right to proceed pro se”).

When a defendant does so, the court is then required to determine whether the attempted waiver of

the right to counsel is knowing and intelligent. McBride, 362 F.3d at 366 (reiterating the wellestablished principle that where a district court “is faced with an accused who wishes to represent

himself, the court must ask the defendant a series of questions” and should “make an express finding

on the record that the accused has knowingly and voluntarily waived his right to counsel”). 

The record in the present case clearly demonstrates that Benitez did not attempt to waive his

right to counsel by requesting self-representation. To the contrary, Benitez repeatedly declined to

address the court on his own behalf, stating that he did not feel well or that he was too nervous. Cf.

Brewer v. Williams, 430 U.S. 387, 404 (1977) (noting that courts must “indulge in every reasonable

presumption against waiver” of the right to counsel). This court’s cases addressing the right to selfrepresentation are therefore inapplicable in the present case. 

3. Substitution of counsel

As with an assertion of the right to self-representation, a defendant wishing to substitute

counsel must “bring any serious dissatisfaction with counsel to the attention of the district court.”

United States v. Iles, 906 F.2d 1122, 1131-32 (6th Cir. 1990) (requiring the defendant to “show his

hand” by alerting the district court of his desire to substitute counsel). Once a defendant does so,

the district court is obligated to inquire into the defendant’s complaint and determine whether there

is good cause for the substitution. Id. at 1131 (“It is hornbook law that when an indigent defendant

makes a timely and good faith motion requesting that appointed counsel be discharged and new

counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant’s

dissatisfaction with his current counsel.” (alterations and internal quotation marks omitted)). 

Thus, where a court is faced with a defendant’s request to effect a change in his

representation by way of a motion to substitute counsel, the court must determine whether there is

good cause for the substitution by balancing “the accused’s right to counsel of his choice and the

public’s interest in the prompt and efficient administration of justice.” United States v. Jennings, 83

F.3d 145, 148 (6th Cir. 1996) (concluding that the district court did not abuse its discretion in

denying motions to substitute counsel raised by codefendants one day before the trial was set to

begin). Appellate courts reviewing the denial of such a motion “generally consider the timeliness

of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the

conflict between the attorney and client was so great that it resulted in a total lack of communication

preventing an adequate defense.” Iles, 906 F.2d at 1130 n.8. 

The record here makes clear that, as the district court noted, “Benitez did not indicate that

he wanted new counsel, never asked the Court to appoint another attorney, never asked to represent

himself, and did not ask for an adjournment to find another counsel.” But Beason’s first statement

to the court was that “I was told last night that I was fired from this case and [Benitez] wished me

not to represent him any longer.” The district court responded to Beason’s remark by asking Benitez

“what is your pleasure here?”, at which point Benitez confirmed that he did not want Beason to

represent him.
No. 05-2484 Benitez v. United States Page 7

This leads to the question of whether, in the absence of an affirmative request to substitute

counsel or for additional time to seek new counsel, the district court was obligated to inquire further

to discover the source of Benitez’s dissatisfaction. Benitez asserts that the court was required to

make such an inquiry, and that its failure to do so resulted in a violation of his right to counsel. On

this score, he relies on Iles, 906 F.2d at 1131, for the proposition that “a district court usually must

engage a defendant in person where he has expressed dissatisfaction with counsel and has sought

to have him removed.”

The defendant in Iles had retained an attorney to represent both himself and his codefendant

wife in a tax-fraud case. Id. at 1123. Their attorney later moved to withdraw as counsel because

of a conflict of interest that arose during plea negotiations. At the hearing on the motion, the

attorney advised the district court that the couple had told him that they were financially unable to

meet the fee arrangement, and also that he and Iles had “serious differences of opinions” with

respect to how to prepare for trial. Id. at 1129. The district court subsequently removed the attorney

from representing the wife and, to avoid the fee-arrangement problem, appointed the same attorney

to represent Iles at the government’s expense. Id. at 1129-30. Iles was present at the hearing and

did not object to the resolution of the issue. Id. at 1130.

On appeal, Iles claimed that he had been denied the right to counsel because the district court

failed to inquire into the source of his dissatisfaction with his attorney. Id. This court, however,

rejected Iles’s argument because he had never actually expressed dissatisfaction with his counsel.

As the court explained:

At no point did Iles try to “fire” his counsel, ask for new counsel, or

suggest that he wished to conduct his own defense. Since the district

court was not put on notice that Iles was dissatisfied with counsel and

wished to have him removed or to have new counsel, the district

court had no duty to inquire. The need to bring any serious

dissatisfaction with counsel to the attention of the district court was

particularly necessary here since Iles initially retained [counsel], thus

affirmatively demonstrating his initial confidence in [his lawyer].

Id. at 1131-32 (citations omitted). 

The government argues that Iles is inapposite because, although the attorney in that case was

initially privately retained, the principles enunciated apply only to cases involving the substitution

of appointed counsel. It therefore contends that Iles should be read as an elaboration on the burden

that an indigent defendant bears in demonstrating “good cause” for the substitution.

The government is correct that Iles, by its terms, addressed the appropriate standards for

inquiring about an indigent defendant’s basis for attempting to substitute appointed counsel. See

Iles, 906 F.2d at 1130 (affirming the principle that “when an indigent defendant makes a timely and

good faith motion requesting that appointed counsel be discharged and new counsel appointed, the

trial court clearly has a responsibility to determine the reasons for defendant’s dissatisfaction with

his current counsel” (alteration omitted)). But this reading ignores the more general principle

underlying Iles, which is that where a district court is on notice of a criminal defendant’s

dissatisfaction with counsel, the court has an affirmative duty to inquire as to the source and nature

of that dissatisfaction—regardless of whether the attorney is court-appointed or privately retained.

See Cottenham v. Jamrog, 248 F. App’x 625, 636 (6th Cir. 2007) (holding, in a habeas case, that a

criminal defendant’s right to counsel was denied where the state court failed to promptly grant a

hearing to investigate the defendant’s repeated objections to representation by an attorney that the

defendant’s family had retained and paid to work on the defendant’s appeal). 
No. 05-2484 Benitez v. United States Page 8

In sum, appropriate judicial inquiry is triggered only when the defendant apprises the court

of his desire to effect a change in representation by way of “a motion, or something that

approximates such a motion.” Iles, 906 F.2d at 1131 n.8. We must therefore determine whether

Benitez’s statements at the beginning of his sentencing hearing were sufficient to bring his

dissatisfaction to the attention of the district court, thus triggering the court’s affirmative duty to

inquire. 

Benitez argues that Iles is dispositive of his right-to-counsel claim, and we agree. His failure

to explicitly request a new attorney does not negate the conclusion that his statements were

sufficient to trigger the district court’s obligation to inquire into his dissatisfaction with Beason.

Unlike the defendant in Iles, who failed to give any indication to the court that he was not pleased

with his counsel’s performance, both Benitez and Beason informed the district court that Benitez

had “fired” Beason and that Benitez did not want Beason to represent him. These statements were

sufficient to “bring any serious dissatisfaction with counsel to the attention of the district court.”

See Iles, 906 F.2d at 1132; see also id. (distinguishing Brown v. Craven, 424 F.2d 1166 (9th Cir.

1970), a case where the defendant had filed four motions for new counsel and stated his

dissatisfaction with his attorney in open court, but also noting that “[a] defendant, of course, need

not go to these lengths to obtain a colloquy with the court on his dissatisfaction”). 

The district court properly recognized that the record evidences Benitez’s confusion about

the role of his attorney at the sentencing hearing. But that confusion seems to have been grounded

in the scope of his right to counsel, not in whether he wanted Beason to represent him. For example,

in responding to a question by the district court (“[Y]ou do not want Mr. Beason to speak on your

behalf at this time?”), Benitez stated that Beason could “speak, but I don’t want him to represent me

any longer.” (Emphasis added.) The district court, moreover, acknowledged that Benitez did “ask

that his counsel be discharged.” That Benitez—a lay person whose first language is Spanish, not

English—failed to invoke the “magic words” by requesting a new attorney should not be interpreted

as an implicit repudiation of his express, repeated statements that he did not want Beason to

represent him. Cf. United States v. Proctor, 166 F.3d 396, 403 (1st Cir. 1999) (“[T]he triggering

statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the

dialogue between the court and the defendant must result in a clear and unequivocal statement.”

(emphasis in original)).

Furthermore, the fact that Benitez permitted Beason to speak on his behalf at a later point

in the sentencing hearing does not undermine our conclusion that the district court failed to

appropriately respond to Benitez’s initial indication that he did not wish Beason to represent him.

Rather, the exchange between Benitez and the district court serves to underscore Benitez’s confusion

about the scope of his right to counsel:

THE COURT: You do not wish Mr. Beason to speak on your behalf;

is that right?

DEFENDANT BENITEZ: Am I going to get sentenced still even

though he won’t represent me? 

. . . .

THE COURT: Right, right.

DEFENDANT BENITEZ: Might as well just have him speak for me,

then.

THE COURT: You might as—excuse me?

THE INTERPRETER: Go ahead and have him speak for me. Go

ahead and have him speak for me.
No. 05-2484 Benitez v. United States Page 9

The district court described this colloquy as Benitez “request[ing] that his counsel . . . speak

on his behalf.” Although this may be true in the most literal sense, it does little more than

demonstrate that the district court was not inclined to delay the proceedings to inquire into Benitez’s

dissatisfaction with Beason’s representation. Benitez and Beason had earlier informed the court that

Benitez did not wish to be represented by Beason. Those statements triggered the court’s obligation

to inquire further. Benitez’s subsequent grant of permission for Beason to speak (after the court

made clear that this would be Benitez’s only possibility of representation) did not provide a remedy

for the court’s prior failure to engage in a colloquy with Benitez. Nor was Benitez’s forced

acquiescence (“You have to answer yes”) in the court’s self-declared interpretation of the record a

waiver of his rights. The court thus failed to ensure that Benitez’s Sixth Amendment right to

counsel of his choice was adequately protected.

This is not to say, of course, that the district court would have been required to permit

Benitez to substitute counsel or to delay the sentencing hearing. See United States v. GonzalezLopez, 126 S. Ct. 2557, 2565-66 (2006) (concluding that the defendant’s Sixth Amendment right

to counsel of his choosing was violated, but acknowledging that that right is not absolute and

recognizing that courts have “wide latitude in balancing the right to counsel of choice against the

needs of fairness and against the demands of its calendar”). As discussed above, we review a

district court’s denial of a motion to substitute counsel for an abuse of discretion, considering “the

timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and

whether the conflict between the attorney and client was so great that it resulted in a total lack of

communication preventing an adequate defense.” Iles, 906 F.2d at 1130 n.8. 

Had the district court inquired into Benitez’s statements and made explicit findings, we could

consider whether the court properly exercised its discretion in refusing to postpone the proceedings.

But the record in this case simply does not allow for such an inquiry. See United States v. Thomas, No. 98-3851, 225 F.3d 660, 2000 WL 799340, at *2 (6th Cir. June 8, 2000) (unpublished)

(remanding the case where the record did not make clear that, in denying the defendant’s motion to

substitute counsel, the district court had discharged its “obligation to inquire” into the factors that

must be considered when balancing defendant’s right to counsel against administrative concerns).

We therefore conclude that Benitez’s statements were sufficient to trigger the district court’s

duty to inquire into the source and nature of Benitez’s dissatisfaction, and that the court’s failure to

do so violated his Sixth Amendment right to counsel. Because Benitez’s § 2255 petition was

untimely filed in the absence of equitable tolling, we will remand the case to the district court for

a determination of whether Benitez is entitled to such tolling. If he is, then the district court will

need to resentence Benitez at a hearing where there is no dispute about him being properly

represented by counsel. 

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with this opinion.