Opinion
Case No. 2:04-cv-00272-MSB.
November 20, 2009
ORDER
Petitioner Michael Lee Carter is a California State Prisoner proceeding with appointed counsel on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of 25 years, having entered a nolo contendere plea in El Dorado County Court in 1999 to the allegation of attempted murder of Jesse James Teach with an enhancement for personal use of a firearm. (Dkt. #27 at 2-3). He contends that he was denied effective assistance of counsel in violation of the Sixth Amendment because his defense attorney, James Clark, had a pre-existing relationship with the victim, Jesse Teach, and had previously represented his "putative co-defendant," Shane Lesher. (Id. at 8-16). Petitioner further contends that he would not have entered a nolo contendere plea had he been aware of these relationships. (Id. at 16-17). The Court denies the petition for writ of habeas corpus.
I. Factual Background
On November 20, 1998, Jesse Teach was shot when a group of four individuals drove up to him while he was using a payphone. (Dkt. #39, Exh. N at 1). Teach was unable to identify the shooter but believed they were the same individuals who had robbed him several nights earlier. (Id. at 5). When Petitioner was later interviewed by the police, he admitted shooting Teach but claimed the shooting had been in self defense. (Id. at 11-12).
Shane Lesher was later identified as a participant in the robbery. (Dkt. #34, Exh. L). Apparently for this reason, Petitioner refers to Lesher as his "putative co-defendant" in the Teach shooting.
On November 25, 1998, the El Dorado County District Attorney filed a criminal complaint alleging that Petitioner attempted the willful, deliberate, and premeditated murder of Jesse Teach. (Dkt. #34, Exh. A). Petitioner subsequently pled nolo contendere to attempted murder, pursuant to a "negotiated plea of low term sentence." (Id., Exh. B). He was sentenced to a low term of 5 years, with a firearm enhancement of 20 years. (Id., Exh. C).
A. Clark's Relationship with Teach
Petitioner claims that in February 2003 he first learned of a pre-existing relationship between Clark, Petitioner's trial counsel, and Teach. Clark was deposed on August 11, 2004, pursuant to a court order. (Dkt. #10).
In his deposition, Clark stated that he first knew Teach from participating in a Little League baseball league. (Dkt. #37, Exh. M at 8:21-9:5). Both he and Teach's father, Larry, coached the team on which Teach played. (Id.). He had a friendly relationship with Teach's father and was familiar with the rest of the Teach family, but he did not socialize with them. (Id. at 9:10-11:5). Clark was also aware that Jesse Teach was getting into trouble in the late 1990s, because he kept "track of (his) kids" from Little League and was in contact with Teach's father. (Id. at 13:3-8). Clark characterized his relationship with Teach's father as "based on how do you do," typical of "a very small town." (Id. at 14:17-18, 9:21). Still, when discussing his subsequent representation of Teach, Clark explained, "I really feel sorry for Larry. Larry being a good father said, Jim, would you do me a favor, would you help my kid out. Sure, Larry, for you. Again, it goes back to little league days. I don't think any money was exchanged, that is irrelevant." (Id. at 35:10-14).
Clark stated that he represented Jessie Teach on two occasions after his representation of Petitioner: on May 12, 1999, in a violation of probation proceeding; and on June 28, 1999, when Teach testified as a witness in Lesher's preliminary hearing regarding a home invasion robbery that occurred just before the shooting. (Dkt. ## 37-38, Exh. M at 27:22-28:8, 33:24-36:22). Although he had no recollection of representing Teach before May 12, 1999, Clark stated that "it very well may have been" that he represented Teach in juvenile proceedings before 1999. (Dkt. #38, Exh. M at 28:18-29:7). "[T]he bottom line is that I'm the type of guy if I know a kid is in trouble and I like the parents, I just sort of step in for nothing and do it." (Id.).
In his declaration, Petitioner states that Clark did not disclose that he knew Teach. (Dkt. #27, Pet. Decl. at 1:5-11). In his deposition, however, Clark stated that "at some point" he told Petitioner that he knew Teach, and that he "considered Mr. Teach to be . . . a shit," but he cannot recall when he made the disclosure or whether he provided any further explanation. (Dkt. #38, Exh. M at 44:8-45:4).
B. Clark's Prior Representation of Lesher
During his deposition, Clark also revealed that he had previously been appointed to represent Lesher in a vehicle theft case in 1997. (Dkt. #37, Exh. M at 24:19-25:7). Clark negotiated a nolo contendere plea for Lesher, which resulted in a short period of confinement in El Dorado County Jail and several years of probation. (Dkt. #39, Ex. N at 41-49). Petitioner claims that Clark did not disclose he previous representation of Lesher. (Dkt. #27, Pet. Decl. at 1:5-11).
C. Clark's Advice Regarding Petitioner's Plea
Clark's representation of Petitioner consisted of one meeting with Petitioner in the jail lasting between half an hour and one hour and two telephone calls with Petitioner lasting under fifteen minutes each. (Dkt. #38, Exh. M at 37:15-38:9). During his deposition, Clark provided the following explanation for advising Petitioner to accept the plea deal:
This issue was going to be was it premeditated or non-premeditated attempted murder. . . . You have Hamman [a co-defendant] saying Carter did it. You have Carter saying, yeah, I did it, but, guys, it was self-defense. Then the two eyewitnesses — one eye witness, Laher comes in at that point and says she saw him squared up and saw him with the bandanna over his face. . . . none of them ever mentioned any discussion about Teach pulling a gun. You know, I mean, I didn't think that self-defense was going to last long. I felt that was specious, quite candidly.
. . .
Looking at the evidence, I think the jury is going to come down with premeditated. . . . So he is looking at 20 years to life . . . I get an offer, he pleads to non-premeditated. . . . He gets a low-term of 5, okay, he has to bite down on the 20 years enhancement. . . . On the one hand he has 25 years, a determinate sentence; on the other hand, he has 20 years to life, an indeterminate sentence. Based on the present — on the political climate at that time, and I don't think it's changed too much quite candidly, he is never getting out of jail.(Id. at 53:20-55:19). Clark further stated that his relationship with Teach "wasn't going to affect how I represented Mr. Carter," and that his advice "was based on what [he] thought was best for Mr. Carter." (Id. at 52:19-20, 53:11-12).
Petitioner does not contest Clark's reasoning with regard to the nolo contendere plea. Rather, in his declaration, Petitioner states:
I did not want to plead guilty, but I entered a West plea because Clark explained to me that going to trial would have been too great a risk, that the evidence against me was too strong. . . . Had I known of the conflict of interest and the [sic] he had previously represented Lesher, and was friends with Teach and the Teach family I would not have pled guilty.
(Dkt. #27, Pet. Decl. at 1:16-23).
II. Procedural History
Petitioner claims that he was alerted to Clark's relationship with Teach around February 2003, when "Leana Browning working as an investigator on behalf of the petitioner procured a copy of a Court transcript" in which Clark identifies himself as Teach's attorney. (Dkt. #35, Exh. G at 12). The events recorded in the transcript occurred several months after Petitioner's plea. (Id.)
On February 3, 2003 Petitioner filed a state habeas petition in El Dorado County Superior Court, alleging that his attorney had a conflict of interest because of the relationship Clark had with Teach. (Dkt. #34, Exh. E). The Superior Court denied his petition, stating only that "Petitioner fails to state sufficient facts to establish a prima facie [claim] for relief." (Id.). The California Court of Appeals denied his appeal, (Dkt. #34, Exh. F), citing In re Swain, 34 Cal. 2d 300 (1949), thereby indicating that Petitioner had not stated facts fully or with sufficient particularity. Petitioner's state remedies with regard to the Clark/Teach claim were then exhausted on December 10, 2003, when the California Supreme Court summarily dismissed his appeal without comment or citation. (Dkt. #35, Exh. G).
On February 5, 2004, Petitioner filed a federal habeas petition. (Dkt. #1). Following Clark's deposition, Petitioner filed a supplemental memorandum that included a claim concerning Clark's prior representation of Lesher. (Dkt. #12). Respondent then filed an answer, (Dkt. #18), and Petitioner filed a traverse. (Dkt. #19). Finding that "[t]he supporting facts and theory of this claim [were] wholly different from those set forth in the initial petition," the district court ordered that the petition be held in abeyance while Petitioner exhausted his state remedies with regard to the Clark/Lesher claim. (Dkt. #22). On May 5, 2006, the California Supreme Court dismissed Petitioner's second habeas petition, (Dkt. #37, Exh. J), citing In re Miller, 17 Cal. 2d 734 (1941), indicating that the petition was barred as a successive claim, and In re Clark, 5 Cal. 4th 750 (1993), indicating that it was untimely.
On June 21, 2006, having exhausted both claims, Petitioner filed an amended federal petition. (Dkt. #27). On July 13, 2006, Respondent indicated that it would stand on its original answer. (Dkt. #32).
III. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not grant a habeas corpus petition with respect to any claim adjudicated on the merits in state court unless the state court determination: "(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." 28 U.S.C. § 2254(d) (2006). "'[C]learly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted). "A decision is 'contrary to' federal law when the state court applies a rule of law that contradicts the governing law set forth in Supreme Court precedent or when the state court makes a determination contrary to a Supreme Court decision on materially indistinguishable facts." Pinholster v. Ayers, 525 F.3d 742, 756 (9th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "A state court unreasonably applies federal law when its application of Supreme Court precedent to the facts of petitioner's case is objectively unreasonable." Id. (citing Williams, 529 U.S. at 409).
"Deference to state court decisions applies only to claims the state court adjudicated on the merits." Id. (citing Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004)). A claim is "adjudicated on the merits" when the state court issues a decision "that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Lambert, 393 F.3d at 969 (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). "The California Supreme Court's denial of a habeas petition without comment or citation constitutes a decision on the merits of the federal claims." Pinholster, 525 F.3d at 756 n. 11 (citations omitted). "[W]hen federal courts are presented with a state court decision that is unaccompanied by any ratio decidendi[,] . . . an independent review of the record is required to determine . . . whether the state court's decision was [an] objectively reasonable" application of federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). By contrast "[d]e novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits." Lewis v Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (citation omitted).
IV. Discussion
A. Timeliness
Respondent's answer contends that the initial petition was untimely under 28 U.S.C. § 2244(d)(1) and (2). (Dkt. #18 at 2).
Under AEDPA, a one-year statute of limitations applies from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). In addition, the limitations period is tolled while the Petitioner pursues his remedies in state court. 28 U.S.C. § 2244(d)(2). Here, although Petitioner's federal habeas petition was filed on February 5, 2004, just over one year after he had learned of Clark's relationship with Teach, Petitioner's appeal with respect to that issue was pending in the state Supreme Court until December 10, 2003. His second federal habeas petition was filed in state court shortly after Petitioner discovered the factual bases for his claims.
"[T]o have the factual predicate for a habeas petition . . . a petitioner must have discovered (or with the exercise of due diligence could have discovered) facts suggesting" all elements of a claim. Hasan v. Garza, 254 F.3d 1150, 1154 (9th Cir. 2001). As Petitioner is alleging that his attorney had conflicts of interest, the relevant inquiry is when he discovered, or could have discovered, facts suggesting "that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Petitioner submitted his first state habeas petition on February 3, 2003, apparently immediately after becoming aware that Clark had a relationship with Teach. Petitioner admits that "Clark may have told me that he knew Shane Lesher," (Dkt. #27, Pet. Decl. at 1:8-9), but maintains that he did not learn of Clark's prior representation of Lesher, the basis for his second claim for relief, until Clark's deposition on August 11, 2004. He filed his second state habeas petition based on the Clark/Lesher claim on June 10, 2005, less than one year later.
There is no evidence indicating that Petitioner could have learned of these relationships at an earlier date through the exercise of due diligence. "Due diligence does not require 'the maximum feasible diligence,' but it does require reasonable diligence in the circumstances." Schlueter v. Varner, 384 F.3d 69, 74 (3rd Cir. 2004) (quoting Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)). "[T]he question whether a habeas petitioner has exercised due diligence is context specific." Wilson v. Beard, 426 F.3d 653, 661 (3rd Cir. 2005). While the parties dispute whether Clark provided any disclosure of his relationships with Teach or Lesher at all, it is clear that Clark did not provide much detail. Clark states "I'm pretty sure I told him, hey, I know Teach, he is a shit, I'm not happy with him. I mean, those are the basic thoughts I communicated to Mr. Carter." (Dkt. #38, Exh. M at 50:22-25). It would be unreasonable to expect a client independently to inquire into potential conflicts based on such vague revelations. For this reason, the California State Bar Rules of Professional Conduct require that attorneys provide written disclosure of any "legal, business, financial, professional, or personal relationship with a party or witness in the same matter." State Bar of Cal., Rules of Prof'l Conduct R. 3-310 (2009). In light of Clark's vague, partial, and potentially misleading oral disclosure, this Court cannot conclude that Petitioner failed to exercise due diligence at the time of his plea.
B. State Procedural Default
"When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977)). "'Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground' for denying relief." Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (per curiam) (quoting Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005)). "To constitute an adequate and independent state procedural ground sufficient to support a state court's finding of procedural default, 'a state rule must be clear, consistently applied, and well-established at the time of petitioner's purported default.'" Id. (quoting Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001)).
As a preliminary matter, Respondent did not expressly raise Petitioner's state procedural defaults in its answer and thus waived the affirmative defense of a procedural bar. Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir. 2002). Furthermore, even if Respondent's assertion that Petitioner's action is untimely could be construed as a reference to a state procedural default, the Ninth Circuit has held that California's timeliness rule is not sufficiently clear to bar federal review, especially in the context of non-capital cases. Townsend v. Knowles, 562 F.3d 1200, 1207-08 (9th Cir. 2009).
C. Sixth Amendment Claims
The California Supreme Court denied Petitioner's Clark/Teach claim on the merits but without comment or citation. The California Court of Appeals denied Petitioner's claim, citing only to In re Swain, and the Superior Court denied Petitioner's claim stating only that "Petitioner fail[ed] to state sufficient facts to establish a prima facie [claim for relief]." Because there is no reasoned state court decision, the Court will review the record to determine whether the state courts' denial of the petition was an objectively unreasonable application of controlling federal law. Delgado, 223 F.3d at 981-82.
By contrast, the California Supreme Court denied Petitioner's Clark/Lesher claim on purely procedural grounds, citing In re Miller and In re Clark. Because this procedural dismissal does not constitute an adjudication on the merits, this Court will review Petitioner's Clark/Lesher claim de novo. See Lambert, 393 F.3d at 969; Ramirez v. Almager, 619 F. Supp. 2d 881, 906 (C.D. Cal. 2008).
i. Clark/Teach Claim
In general, to prevail on a conflict of interest claim, the petitioner must show that "an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348. "[T]he Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An 'actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Mickens v. Taylor, 535 U.S. 162, 172 n. 5 (2002); see Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006). To show an adverse effect, a petitioner must show "that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was . . . not undertaken due to the attorney's other loyalties." United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005) (internal quotation omitted); see also United States v. Shwayder, 312 F.3d 1109, 1118 (9th Cir. 2002) ("To show that an actual conflict had an adverse effect, . . . the defendant must establish that counsel was influenced in his basic strategic decisions by the [conflicting] interests.") (internal quotation marks and citation omitted).
Clark's pre-representation relationship with Teach, whether it was truly in passing or involved something more, created a "theoretical division of loyalties." Mickens, 535 U.S. at 171. Still, Petitioner has not shown that Clark's relationship manifested itself in an actual conflict that negatively impacted the quality of his representation of Petitioner. Petitioner does not point to some alternative analysis of the plea offer or an unexplored legal strategy that could have impacted plea bargaining or his chances at trial. Rather, Petitioner asserts only that "[a]t the time petitioner pled guilty, petitioner's lawyer was obviously [] more concerned about the victim, Teach, and his former client, Lesher." (Dkt. #27 at 16).
Petitioner also frames his conflict of interest claim as a constructive denial of counsel claim, arguing that "[i]n fact and effect, petitioner was without counsel at the time of his plea." (Id.). But this is only another way of stating the actual conflict issue, and is governed by the same analysis.
True, "constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland v. Washington, 466 U.S. 668, 692 (1984); see Mickens, 535 U.S. at 166 ("We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding."). But constructive denial of counsel arises only in circumstances where "[p]rejudice . . . is so likely that case-by-case inquiry into prejudice is not worth the cost." Strickland, 466 U.S. at 692. And, with regard to conflict allegations, "circumstances of that magnitude . . . arise when the defendant's attorney actively represented conflicting interests." Mickens, 535 U.S. at 166 (internal quotation marks omitted). The Ninth Circuit has "described this principal as the 'Sullivan exception,' to the rule that a habeas petitioner must show prejudice in connection with his ineffective assistance of counsel claim." Foote v. Del Papa, 492 F.3d 1026, 1029 (citing Earp v. Ornoski, 431 F.3d 1158, 1183 (9th Cir. 2005)). "The Sullivan exception applies where the petitioner shows: (1) that his counsel actively represented conflicting interests; and (2) that this adversely affected his counsel's performance." Id. at 1182 (citing Sullivan, 446 U.S. at 348); see Strickland, 466 U.S. at 692 (noting that the presumption of prejudice applied to conflict claims "is not quite the per se rule of prejudice" applied to denial of counsel claims). Because, as the court has noted, the facts alleged state, at best, a potential conflict of interest, Petitioner fails to state a claim of constructive denial of counsel, and, regardless of the way it is framed, Petitioner's claim is governed by Sullivan.
After reviewing the record, the Court concludes that the California Supreme Court was not unreasonable in denying Petitioner's conflict of interest claim stemming from Clark's relationship with Teach.
ii. Clark/Lesher Claim
Petitioner amended his petition in June 2006 to include an additional claim based on Clark's prior representation of his "putative co-defendant," Shane Lesher. "Conflicts of interest can arise both in cases of simultaneous and successive representation. Generally, it is more difficult to show an actual conflict resulting from successive rather than simultaneous representation." Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988) (citation omitted). "In successive representation, conflicts of interest may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties." Hovey, 458 F.3d at 908 (quoting Mannhalt, 847 F.2d at 580). Petitioner fails to meet this standard. Clark was appointed to represent Lesher in an auto theft case approximately one and half years before Clark represented Petitioner. Clark represented Lesher for a short period of time and negotiated a favorable plea for him. (Dkt. #39, Exh. N at 41-49). Clark's representation of Lesher and the facts underlying Lesher's case appear to be entirely unrelated to Clark's representation of Petitioner. In addition, there is no indication that Clark manifested any division of his loyalties. Moreover, Petitioner fails to demonstrate that this alleged conflict adversely affected Clark's performance. See Earp, 431 F.3d at 1182.
The Court has reviewed Petitioner's successive representation claim de novo and determines that Petitioner fails to demonstrate an actual conflict of interest that adversely affected his counsel's performance.
Accordingly,
IT IS HEREBY ORDERED denying the petition for writ of habeas corpus. (Dkt. #1).
IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly.