Tooby's California Post-Conviction Relief for Immigrants

 

(A)

In General.  The classic case of conflict of interest is when one attorney represents more than one defendant, whose interests potentially conflict.[241]  An actual conflict exists when a defendant is placed “at odds with co-defendants who were in fact more culpable.”[242]  Other conflicts occur when the attorney has a conflicting pecuniary interest (book rights, for example, which would be worth more if the client were convicted), or where the attorney has an interest in avoiding a finding of ineffective counsel, whereas the client has an interest in establishing ineffective counsel so as to withdraw a plea.[243]  The court has also held there was a constructive denial of counsel when an attorney, who was elected as prosecutor after representing the defendant on appeal, did nothing to represent him or find substitute counsel during a state-requested discretionary appeal.[244] 

 

            “Courts have recognized actual conflicts of interest between an attorney and his client when pursuit of a client’s interests would lead to evidence of an attorney’s malpractice.”[245]  In Mathis v. Hood,[246] the court affirmed a district court finding that petitioner’s state appellate counsel, faced with disciplinary proceedings and possible liability for causing a six-year delay in the appeal, suffered from a conflict of interest that created a per se Sixth Amendment violation and required the state to afford petitioner a new state appeal.

 

            Similarly, in Lopez v. Scully,[247] the court held that petitioner’s right to effective assistance of counsel at his sentencing had been violated, and ordered him resentenced with new counsel representing him.  Where petitioner had filed a pro se motion to withdraw his plea, on the ground his attorney had coerced him into entering it, a conflict of interest arose resulting in denial of effective assistance of counsel.[248]

 

            In United States v. Sanchez-Barreto,[249] the court reversed and remanded.  Defendant made a pro se motion to withdraw his guilty plea, arguing that his court-appointed counsel had coerced the defendant’s guilty plea in order to conceal his unpreparedness for trial, and the court held he was entitled to new unconflicted counsel to litigate this claim.

 

            A conflict of interest existed where appellant was unable to raise an issue (that he committed the act on advice of counsel) because his specific lawyer was representing him, that he would have been able to raise with other counsel.  The court stated: “The conflict would have been particularly acute if the advice Mitchell supposedly gave would have constituted a violation of the rules of professional ethics. ‘The presumption of prejudice extends to a conflict between a client and his lawyer’s personal interest.’  Mannhalt, 847 F.2d at 580 (citations omitted).”[250]

 

            In order to establish this violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.[251]

[241] Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996) (court failed to inquire adequately into need for separate counsel for codefendants both of whom were represented by the same public defender’s office).

[242] Lockhart v. Terhune, 243 F.3d 1130 (9th Cir. 2001)(finding actual conflict where appointed counsel earlier represented another individual responsible for a prior crime).

[243] Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert. denied, 517 U.S. 1115 (1996).

[244] Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997).

[245] United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994) (citing United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986), cert. denied, 479 U.S. 1038; 107 S.Ct. 893; 93 L.Ed.2d 845 (1987) and Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991)).

[246] Mathis v. Hood, 937 F.2d 790 (2d Cir. 1991).

[247] Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995).

[248] Id., citing United States v. Swartz, 975 F.2d 1042, 1048 (4th Cir. 1992).

[249] United States v. Sanchez-Barreto, 93 F.3d 17 (1st Cir. 1996).

[250] United States v. Miskinis, 966 F.2d 1263, 1269 (9th Cir. 1992).

[251] Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718 (1980).