Opinion
No. C 02-5132 CRB
August 12, 2003
MEMORANDUM AND ORDER
Now before the Court is Nemesio Plancarte's petition for a writ of habeas corpus. The petition arises out of petitioner's 1997 no-contest plea to possession of methamphetamine. After careful review and consideration of the papers submitted, the petition for a writ of habeas corpus is DENIED.
I. BACKGROUND
A. History of the Case Against Petitioner
On April 16, 1996, officers of the Fremont Police Department served a search warrant on a residence at 25815 Stanwood Avenue in Hayward. Pet. Ex. G at 3-4 (transcript of preliminary hearing) [hereinafter Preliminary Hearing]. Petitioner was not present at the time of the search, but his codefendant Jose Luis Alvelo was. Preliminary Hearing at 5. Investigating officers found 21 grams of methamphetamine and drug paraphernalia in a backyard shed. Resp't's Mem. Ex. 5 at 1 (Southern Alameda Country Narcotic Enforcement Team Investigation Report) [hereinafter SACNET Report]. They had obtained the key to this shed from a keychain found in a bedroom containing Alvelo's motor vehicle registration and pager. SACNET Report at 3; Preliminary Hearing at 7.
Although no indicia of petitioner were recovered in the bedroom with the keychain, other evidence supported a connection among petitioner, the residence, and the drugs. A second bedroom contained a service order receipt and check register re-order form in petitioner's name. SACNET Report at 2. Payroll receipts for both petitioner and Alvelo were found in a toolbox in the shed. Preliminary Hearing at 8. Photographs of petitioner were observed in the residence, but not recovered. Preliminary Hearing at 41. Petitioner listed the Stanwood Avenue address with the Department of Motor Vehicles, a car parked out front was registered to him, and, prior to the search, police drive-bys had twice observed petitioner in the yard. Resp't's Mem. Ex. 3 (affidavit supporting the search warrant); see also Preliminary Hearing at 18-21.
On May 23, 1996, petitioner and Alvelo were both charged with possession of methamphetamine for sale. See Pet. Ex. B; see also Cal. Health Safety Code § 11378 (West 2003). The court file for the case indicates that petitioner was represented by Larry Ward and Alvelo was represented by Nanette Cannon. See Pet. Exs. H, I. It is apparent from the court file, however, that Ward usually made appearances in place of Cannon. See Pet. Ex. J.
At the preliminary hearing on February 5, 1997, Ward appeared on behalf of petitioner and Cannon appeared on behalf of Alvelo. Preliminary Hearing at 1. Each attorney separately cross-examined the one witness (a police officer) and each gave a separate closing statement. Preliminary Hearing at 17-57.
B. Other Cases Involving Ward and Alvelo
On August 22, 1997, Alvelo, along with Juan Francisco Ochoa and Sergio Ochoa Gonzalez were charged in connection with the sale of methamphetamine. See Pet. Ex. F (case number H23532). Alvelo and Ochoa were charged with five violations of California Health and Safety Code section 11379(a) (sale of a controlled substance) and one violation of Health and Safety Code section 11378 (possession for sale). Id. Sentencing enhancements were also charged, relating to the quantity of drugs sold and Alvelo's violation of bail in case H23523. Id.; see also Cal. Penal Code § 1203.073(b)(2) (enhancement for quantity); id. at § 12022.1 (enhancement for bail violation). Apparently, Cannon represented Alvelo in this proceeding while Ward represented Ochoa. See Pet. Ex. C at 25-26. Gonzalez, who had only been charged with one count of section 11379(a), was represented by a public defender. See Pet. Ex. C; Pet. at 16.
Alvelo also had two unrelated misdemeanor charges, and Ward represented him in both cases. On August 15, 1996, Alvelo was charged with driving on a suspended license. See Pet. Ex. D. On November 15, 1996, Alvelo was charged with a probation violation based on possession of a stolen gun.See Pet. Ex. E.
C. Plea Hearing
Both cases H24523 (possession for sale charge against petitioner and Alvelo) and H24532 (distribution charge against Alvelo, Ochoa, and Gonzalez) were resolved with respect to petitioner, Alvelo, and Ochoa at a joint change of plea proceeding on December 18, 1 997. See Pet. Ex. J [hereinafter Plea Proceeding]. Ward was the only defense attorney present at this proceeding, appearing directly on behalf of petitioner and Ochoa and making a special appearance for Cannon on behalf of Alvelo. Id.
Petitioner pled no contest to the lesser included offense of simple possession. See id. at 4; see also Cal. Health Safety Code § 11377 (West 2003). He was sentenced to three years of probation. See Pet. Ex. A. This was a better deal for petitioner than the one the District Attorney had offered initially, which would have required a plea to the greater offense and a year in county jail in addition to probation. Resp't's Mem. at 8, 11. 21-28.
Ochoa pled no contest to the lesser included offense of possession for sale. Plea Entry at 3; see also Cal. Health Safety Code § 11378 (West 2003). Alvelo did the same. Plea Entry at 3. Both received a term of 16 months in state prison. Plea Proceeding at 3-4. Alvelo's plea was to the charges in H24532; the charges against him in H24523 were apparently dismissed. See id. at 11.
According to petitioner, twelve days after the joint plea hearing, Ward appeared on behalf of Alvelo in his misdemeanor cases. Petitioner claims that with respect to the gun charge, the court found a probation violation and reinstated probation on its former terms, and that the District Attorney dropped the suspended license charges.
D. Subsequent Procedural History
On September 25, 2000, petitioner filed a motion in state court to set aside his plea. Resp't's Ex. 1. He contended that although Cannon entered an appearance in the case, Ward in fact acted as the attorney for petitioner, Alvelo, and Ochoa. See id at 8-9. Petitioner argued that Ward therefore had multiple conflicts of interest, causing petitioner to suffer ineffective assistance of counsel.
The state court held an evidentiary hearing on this matter on February 6, 2001. See Pet. Ex. C [hereinafter Evidentiary Hearing]. Alvelo testified that he had told his wife to retain Ward as his attorney, and that he instructed her to make payments to Ward. Id. at 8-9. He further testified that he never spoke to Cannon, only to Ward, and that it was Ward who told him about the plea agreement. Id. at 11-12, 14. Petitioner testified that Ward would talk to petitioner and Alvelo together when they would go to court, though he denied that the three ever had "meetings" together. Id. at 75-76. Petitioner also testified that Ward never discussed any potential or actual conflicts of interest with him.Id. at 74-75.
Alvelo acknowledged on cross-examination that he had never corrected the trial judge's impression that he was represented by Cannon. Id. at 21-22. Petitioner acknowledged on cross-examination that his plea was motivated by the fact that he was getting a better deal than he had originally been offered. Id. at 90.
On April 11, 2001, the state court denied petitioner's motion to set aside his verdict. See Pet. Ex. Q [hereinafter Denial Order]. The court found that petitioner's and Alvelo's "selective memory regarding certain relevant facts was beyond the realm of conceivable truthfulness" and thus rejected their testimony. Id. The court then proceeded to find that petitioner had failed to present any credible evidence that Ward acted as attorney for both petitioner and Alvelo, that Ward had an actual or potential conflict of interest, or that there was any prejudice to petitioner. Id.
Petitioner filed a state habeas petition, which was denied by the state court of appeal and the state supreme court. See Pet. Ex. S, T. Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. He claims ineffective assistance of counsel due to conflict of interest.
Per order filed on November 12, 2002, this Court found that the petition stated cognizable claims under section 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause. Petitioner has filed a traverse.
II. DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d). In considering the state court's adjudication of petitioner's claims, the Court looks to the last reasoned opinion by any level of the state court. See LaJoie v. Thompson. 217 F.3d 663, 669 n. 7 (9th Cir. 2000).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor. 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. See id. at 412: Clark v. Murphy. 317 F.3d 1038, 1044 (9th Cir. 2003). Circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." Clark. 331 F.3d at 1070-71: Duhaime v. Ducharme. 200 F.3d 597, 600 (9th Cir. 2000).
A federal habeas court may grant the writ if it concludes that the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Where a state court has not made a necessary factual finding, the reviewing court determines the facts de novo. See Wiggins v. Smith.123 S.Ct. 2527, 2540 (2003).
B. Right to Conflict-Free Counsel
The Sixth Amendment right to counsel includes "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia. 450 U.S. 261, 271 (1981). Not all multiple-representation situations constitute conflicts of interest; a reviewing court must analyze the facts in order to determine the existence of a conflict. See Cuyler v. Sullivan. 446 U.S. 335, 348 (1980). A petitioner who did not lodge an objection at trial must demonstrate to a reviewing court (1) "an actual conflict of interest" that (2) "adversely affected his lawyer's performance." Id.: see also Bragg v. Galaza. 242 F.3d 1082, 1086 (9th Cir.), as amended. 253 F.3d 1 150 (9th Cir. 2001). This same standard applies when the trial court failed to inquire sua sponte about potential conflicts. See Mickens v. Taylor. 535 U.S. 162, 172-73. If petitioner makes a sufficient showing under both prongs, prejudice is presumed. See Cuyler. 446 U.S. at 349-50; United States v. Miskinis. 966 F.2d 1263, 1268 (9th Cir. 1992).
C. Actual Conflict of Interest
1. Legal Standard
Theoretical or potential conflict is not actual conflict; counsel must have actively represented conflicting interests. See Bragg. 242 F.3d at 1087: Morris v. California. 966 F.2d 448, 455 (9th Cir. 1991). A petitioner must prove an actual conflict through a factual showing in the record. See Bragg. 242 F.3d at 1087: Morris. 966 F.2d at 455.
2. Analysis
Petitioner claims that Ward had actual conflicts of interest arising from (1) his representation of Ochoa on the drug sale charges, (2) his representation of Alvelo in the misdemeanors, and (3) his representation of both petitioner and Alvelo on the possession charges. Although these are the same arguments that petitioner raised in his attempt to set aside his plea, the trial court's opinion did not directly address petitioner's first two contentions. See Resp't's Ex. 1 at 28; Denial Order.
a. Ochoa's Drug Sale Charges
Petitioner suggests that Ward's representation of Ochoa on the drug sale charges constituted an actual conflict because of Ward's interest in keeping Ochoa uninvolved in the drug possession charges. When the record suggests that their interests are mutually opposed, an actual conflict may exist between a defendant and unindicted co-conspirators represented by the same lawyer. See United States v. Christakis, 238 F.3d 1164, 1169 (9th Cir. 2001) (holding that an actual conflict would exist if a defendant possessed information that might allow the implication of a co-conspirator as part of a plea bargain); United States v. Allen. 831 F.2d 1487, 1496-97 (9th Cir. 1987) (finding an actual conflict when "any genuine effort" by the defendant to downplay his own involvement would have implicated the co-conspirators).
Here, however, there is no reason to believe that Ochoa might have been indicted on the drug possession charges. The evidence does not suggest any connection between petitioner and Ochoa with respect to those charges. Petitioner claims, without citation to any evidence in the record, that investigation of the drug sale charges involved a search of the Stanwood Avenue residence. This search apparently occurred after petitioner had already been charged, and uncovered no drugs. Even assuming petitioner's claims are true, they do not support an inference that Ochoa had any knowledge of or connection to the drugs found there the previous year. None of the evidence collected during the earlier search implicated Ochoa. Petitioner does not claim that he possessed any personal knowledge of Ochoa's culpability, or that he told Ward he had such knowledge.
Absent any facts in the record that would tie petitioner's fate to Ochoa's, let alone in a conflicting fashion, this Court cannot find that an actual conflict existed.
b. Alvelo's Misdemeanor Charges
Ward's representation of Alvelo on factually unrelated matters does not in and of itself constitute active representation of conflicting interests. In the absence of any evidence in the record that the cases were related either factually or procedurally, there is nothing to suggest that Ward's loyalty to Alvelo in the misdemeanor cases was in actual conflict with his representation of petitioner in the drug possession case.
Nevertheless, the fact that Ward and Alvelo had an explicit attorney-client relationship in other matters has a bearing on the Court's inquiry into whether Ward may have acted as Alvelo's attorney with respect to the drug possession charge also. The Court examines this issue next.
c. Ward's Representation of Both Petitioner and Alvelo on the Drug Possession Charges
The attorney-client relationship is not simply a formality. To truly represent a client, the attorney must provide adequate substantive assistance. "`That a person who happens to be a lawyer is present at trial alongside the accused . . . is not enough to satisfy the constitutional command. . . . An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.'" Evitts v. Lucey. 469 U.S. 387, 395 (1985) (quotingStrickland v. Washington. 466 U.S. 668, 685 (1984)). Therefore, the simple fact that Cannon was Alvelo's attorney of record does not end this Court's inquiry; the facts must be examined to determine whether she was simply a stand-in with Ward performing most of the substantive duties.
If Ward did in fact represent the interests of both petitioner and Alvelo in the drug possession case, there would be an actual conflict of interest. "An actual conflict exists when a defendant is placed at odds with co-defendants who were in fact more culpable." Lockhart v. Terhune. 250 F.3d 1223, 1230 (9th Cir. 1995) (quoting Allen. 831 F.2d at 1496):see also United States v. Shwayder. 312 F.3d 1109, 1118 (9th Cir. 2002) (finding actual conflict in a case of successive representation of co-defendants where the second had an interest in laying blame on the first). Here, the evidence connecting Alvelo to the drugs was stronger than the evidence connecting petitioner: Only Alvelo was present at the time of the search, and the key to the shed was found in Alvelo's room. Although there was strong evidence connecting petitioner to the residence, petitioner would still have an interest in attempting to shift most or all of the blame for the presence of drugs onto Alvelo.
At the evidentiary hearing before the state trial court, Alvelo testified that he instructed his wife to pay Ward for his legal representation, that it was Ward who represented his legal interests, and that he never spoke to Cannon. Petitioner testified that Ward discussed his case and Alvelo's case together. In spite of this testimony, the trial court found that there was no evidence to suggest that Ward had served as the attorney for both petitioner and Alvelo. The court rejected petitioner's and Alvelo's testimony on the grounds that it lacked credibility.
On the record before this Court, the state court's finding that there was no actual conflict appears questionable. Court records indicate that Ward appeared on behalf of both petitioner and Alvelo at virtually every court proceeding concerning the charges for possession and sale, including the hearing at which the defendants entered their no-contest pleas. Moreover, it is undisputed that Ward and Alvelo had an ongoing attorney-client relationship stemming from Alvelo's misdemeanor charges. These facts tend to corroborate the testimony offered by petitioner and Alvelo at the evidentiary hearing. Particularly in the absence of any stated reasons for disbelieving that testimony, the trial court's ruling on the actual-conflict issue appears to have been based on an unreasonable determination of the facts. Habeas relief might therefore be appropriate if petitioner could establish that the conflict had an adverse effect on his lawyer's performance. See Cuyler. 446 U.S. at 348.
D. Adverse Effect
1. Legal Standard
Though the adverse effect prong does not require a finding of actual prejudice, it is nevertheless a "substantial hurdle." United States v. Mett, 65 F.3d 1531, 1535 (9th Cir. 1995). An adverse effect in theCuyler sense "must be one that significantly worsens counsel's representation of the client before the court or in negotiations with the government." Id. Petitioner must show "that some effect on counsel's handling of particular aspects of the trial was likely." Miskinis. 966 F.2d at 1268 (citation omitted).
The Court notes that the trial court erred by applying a prejudice test to petitioner's claim rather than the adverse effect test. See Denial Order. However, since this Court finds that petitioner failed to meet the less stringent adverse effect test, the trial court's error was harmless.
2. Analysis
Petitioner argues three adverse effects: (1) Ward did not argue the relative culpability of petitioner and Alvelo at the preliminary hearing; (2) Ward's conflicting interests in group plea negotiations involving petitioner, Alvelo, and Ochoa worked to petitioner's detriment; and (3) petitioner never would have accepted the plea agreement had Ward disclosed his conflicts.
a. Preliminary Hearing
Petitioner's first argument has no merit, because Ward's conflict was irrelevant in the context of the preliminary hearing. The issue at the preliminary hearing was whether sufficient evidence existed to hold petitioner to answer for the drug possession charge. Under California law, narcotics can be jointly possessed. See People v. Showers. 68 Cal.2d 639, 644 (1968) ("[T]he accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property."); see also People v. Jenkins. 91 Cal.App.3d 579, 583 (1979) ("[Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.") (internal quotations omitted). As such, the fact that the evidence against Alvelo may have been stronger than the evidence against petitioner was immaterial to whether the evidence against petitioner was sufficient to hold him to answer. At the hearing Ward argued that the evidence did not establish enough of a connection between petitioner and the drugs. See Preliminary Hearing at 55-56. Petitioner suffered no adverse affect, since the conflict did not come into play.
b. Plea Negotiations
Petitioner next argues that Ward negotiated a global plea agreement to resolve all the charges against all of his clients: petitioner and Alvelo for drug possession, Alvelo and Ochoa for the drug sales, and Alvelo for his misdemeanors.
However, petitioner fails to present evidence establishing that Ward's actions in the plea negotiations were adversely affected by his conflict of interest. See Mickens. 535 U.S. at 173 ("[I]t [is] at least necessary, to void the conviction, for petitioner to establish that the conflict of interest adversely affected his counsel's performance.");accord Moss v. United States. 323 F.3d 445, 469 (6th Cir. 2003) (rejecting defendant's Cuyler claims because of failure to find any "specific and credible evidence" linking an attorney's conflict with plea advice); Allen, 831 F.2d at 1496 (finding an actual conflict and adverse effect where evidence showed that attorneys had drawn up a list of the defendants' relative culpabilities); Thomas v. Foltz, 818 F.2d 476, 482-83 (6th Cir. 1987) (finding an adverse effect when there was evidence that a global plea agreement would have collapsed without petitioner's agreement).
Petitioner's only evidence for adversely affected plea negotiations is (a) petitioner's testimony that Ward referred collectively to petitioner and Alvelo in discussing his work, (b) Alvelo's testimony that the plea agreement was first discussed just prior to entering the plea, (c) the fact that the drug cases were resolved simultaneously and only two weeks before the resolution of the misdemeanor charges, and (d) the suggestion that Alvelo's overall result-sixteen months in prison-was more favorable than the many charges against him seemed to warrant.
This is insufficient. First of all, there is no evidence to establish that the plea negotiations were in fact conducted globally. Secondly, even if there was a global plea bargain, there is no evidence that this affected petitioner adversely. By petitioner's own admission, the prosecutor's second plea offer was superior to the first, suggesting that the negotiations worked in petitioner's favor, rather than to his detriment.
c. Nondisclosure of Conflict to Petitioner
Petitioner's final argument is not grounds for habeas relief. Failure to disclose a conflict to a client is not itself an adverse effect, since it is internal to the attorney-client relationship and does not affect the lawyer's external ability to advocate for his client. See Mett, 65 F.3d at 1536 (failure to disclose conflicts does not constitute adverse effect because "[a] conflict which causes problems of some sort in some facet of the attorney-client relationship . . . but which ultimately has no significant impact on counsel's representation of the client before the court or in negotiations with the government, does not cause an adverse effect in the sense of Cuyler") (emphasis added).
Nor does the fact that petitioner pled raise Ward's omission to the level of an adverse effect. The primary inquiry in assessing a plea is whether it was a "voluntary and intelligent choice" made by the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). In articulating the Cuyler standard, the Supreme Court cited with approval its earlier decision in Dukes v. Warden, in which it denied habeas relief to a petitioner whose guilty plea was encouraged in part by an attorney who later used that plea in seeking leniency for the petitioner's codefendants on an unrelated charge. See Cuyler. 446 U.S. at 349 (citingDukes v. Warden. 406 U.S. 250 (1972)). The Cuyler court noted that Dukes was denied relief because he "did not identify an actual lapse in representation," and nothing "did in fact render the plea in question involuntary or unintelligent." Id. (quoting Dukes. 406 U.S. at 256); see also Thomas. 818 F.2d at 480 ("[I]n order to successfully assert a claim of ineffective assistance of counsel, a defendant who entered a guilty plea must establish: (1) that there was an actual conflict of interest, and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant.") (citation omitted).
Here, nothing supports an inference that petitioner's plea was either involuntary or unintelligent. The facts do not bear out petitioner's assertion that he would not have pled had he known of the conflict. According to petitioner's own testimony, his plea decision was motivated by the fact that he was getting a better deal than he was originally offered. See Evidentiary Hearing at 90. Petitioner's own testimony also refutes the idea that his plea decision was predicated on a belief that Ward represented only petitioner; he testified that he thought Ward was jointly representing both petitioner and Alvelo. Evidentiary Hearing at 71. Offered an attractive plea deal, petitioner knowingly and voluntarily accepted it.
E. Summary
Although the state court's finding that there was no actual conflict may have been unreasonable, petitioner has not shown that any such conflict had an adverse impact on Ward's representation. Petitioner therefore fails to meet the Cuyler standard to establish a violation of his Sixth Amendment right to conflict-free representation.
IV. CONCLUSION
For the foregoing reasons, Nemesio Plancarte's petition for a writ of habeas corpus is hereby DENIED.
IT IS SO ORDERED.
The Court having denied the petition for writ of habeas corpus, it is hereby ordered that judgment be entered in favor of respondent and against petitioner.
IT IS SO ORDERED.