U.S. v. Maria-Martinez, MARIA-MARTINEZ

• Decision Date: 10 June 1998
• Docket Number: MARIA-MARTINEZ,No. 97-40184,97-40184
• Citation: 143 F.3d 914
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Santa, a.k.a. Chuey, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 914

143 F.3d 914

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Santa MARIA-MARTINEZ, a.k.a. Chuey, Defendant-Appellant.

No. 97-40184.

United States Court of Appeals, Fifth Circuit.

June 10, 1998.

Alice Ann Burns, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, H. Michael Sokolow, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, SMITH and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jesus Santa Maria-Martinez appeals a guilty plea entered while he was represented by an attorney who had been barred from practicing before courts in the Fifth Circuit. Because the record is not sufficiently developed to evaluate a claim of ineffective assistance of counsel, we affirm.

I.

Maria-Martinez and his brother sold drugs out of a trailer in Victoria, Texas. Using a confidential informant, the Victoria Police Department purchased 2.96 grams of heroin from Maria-Martinez in 1993. In 1995, another confidential informant telephoned Maria-Martinez, who arranged for the caller to meet with his brother in a drug store parking lot and purchase twelve grams of heroin.

Maria-Martinez was arrested and charged with various narcotics offenses in April 1996; attorney Carlos Alvarado was promptly appointed to represent him and did so throughout the district court proceedings, despite the fact that Fifth Circuit Chief Judge Politz had issued an order barring Alvarado from the practice of law in Fifth Circuit courts for a period of at least six months, to end no earlier than June 1996. Alvarado could have reapplied for permission to practice after the six-month period elapsed, but never did so.

On May 8, 1996, a superseding indictment charged Maria-Martinez with conspiracy to possess with intent to distribute a controlled substance, along with four counts of aiding and abetting in the knowing distribution of heroin. He pleaded not guilty on May 17, but entered a guilty plea on two counts on September 23, pursuant to a plea agreement.

The plea agreement included a promise by the government to dismiss three counts and to recommend a three-level sentence reduction for acceptance of responsibility and a sentence at the lower end of the sentencing guideline range. In return, Maria-Martinez promised his truthful testimony at rearraignment and sentencing. The district court accepted these recommendations but enhanced the sentence by two levels based on possession of a dangerous weapon during a drug trafficking offense.

Alvarado filed a notice of appeal for Maria-Martinez in January 1997. In April 1997, the Fifth Circuit entered an order noting that Alvarado had been barred from practice within the circuit and vacating his appointment in Maria-Martinez's case. The district court was ordered to obtain new counsel, and did so.

II.

Maria-Martinez asks that we reverse his conviction because he received ineffective assistance of counsel. We do not typically review claims of ineffective assistance on direct appeal, because the record is rarely sufficiently developed on the issue of counsel's competence. See, e.g., United States v. Foy, 28 F.3d 464, 476 (5th Cir.1994). Although Maria-Martinez asserts several ways in which his counsel allegedly erred, the record is not complete without Alvarado's testimony as to any tactical motivations behind his actions and as to how these errors influenced the result.

For instance, Maria-Martinez claims Alvarado failed to move to suppress evidence obtained by a search warrant allegedly containing stale information. We have held that a claim of ineffective assistance based on a failure to file a motion to suppress cannot be reviewed without testimony as to the reasons behind failing to file the motion. See United States v. Chavez-Valencia, 116 F.3d 127, 133-34 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 325, 139 L.Ed.2d 252 (1997).

Maria-Martinez argues that such a record is unnecessary, because his counsel had been suspended and was therefore ineffective as a matter of law, even if he committed no error nor caused prejudice to the defendant's rights through his incompetence. Maria-Martinez relies, for this argument, on cases from other circuits holding that an unlicensed attorney may, in some cases, be found ineffective per se. This court has never applied a per se ineffectiveness rule; accordingly, whether and when we may apply such a rule is res nova in this circuit. ¹

A.

Some other circuits have applied a per se ineffectiveness rule to improperly credentialed lawyers in two situations. The first involves a lawyer who has not demonstrated the specialized knowledge that attorneys must possess. For instance, the District of Columbia Circuit applied a per se test where the defendant was represented by an ex-convict posing as a lawyer, who had never gone to law school. See Harrison v. United States, 387 F.2d 203, 212-14 (D.C.Cir.1967). Similarly, the Second Circuit has applied a per se rule where the attorney had gone to law school but had failed to pass any bar examination, after several attempts. See Solina v. United States, 709 F.2d 160, 169 (2d Cir.1983). The second class of cases involves lawyers who were involved in the crime of which the defendant was accused, thus creating a conflict of interest. See, e.g., United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984).

The first class of cases--the one most relevant here--is based on two considerations. First, courts are concerned that a defendant have a counselor who has legal training and has demonstrated the specialized knowledge and ability of a lawyer. See, e.g., United States v. Mouzin, 785 F.2d 682, 697 (9th Cir.1986).

Second, an undisclosed lack of credentials may create a conflict of interest. The inadequate credentials provide an incentive for lackluster representation, the theory goes, because the attorney will be concerned about drawing attention to himself and encouraging an inquiry into his background. See, e.g., Solina, 709 F.2d at 164 (citing Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978)). At least one of these concerns must be present before a per se rule is appropriate. United States v. Aiello, 900 F.2d 528, 532 (2d Cir.1990).

There is little question that Maria-Martinez had an attorney who possessed the specialized knowledge necessary to represent a client. Although he had been barred from practice in the Fifth Circuit on the basis of his handling of an appeal for another client, Alvarado was a member of the Texas bar throughout the proceedings.

While Alvarado's suspension did not arise from a technical failure to meet requirements, it also did not result from a demonstrated lack of legal knowledge. Rather, he was suspended for failing to file documents in connection with the appeal and to apply for admission to the Fifth Circuit in order to litigate the appeal.

Because this is a direct appeal rather than an appeal from the denial of a 42 U.S.C. § 2255 motion, the record does not contain any explanation for Alvarado's neglect of this matter, but numerous explanations could be offered consistent with his continuing ability to represent other clients. The record before us in no way demonstrates an inability properly to represent a client to whom he could devote sufficient time and attention, as he appears to have done in this case.

Although the Second Circuit and several other circuits apply a per se rule in some cases, they do not apply it to lawyers who are properly credentialed in another court. In Derringer v. United States, 441 F.2d 1140, 1141 (8th Cir.1971), and United States v. Bradford, 238 F.2d 395 (2d Cir.1956), the courts did not apply a per se rule where an attorney was properly admitted to a state bar but had not applied for permission to practice in federal court. Similarly, the Seventh Circuit did not apply a per se rule to an attorney who was admitted to the bar in Iowa, failed the bar in Indiana several times, then represented a defendant in Indiana. See United States v. Merritt, 528 F.2d 650, 651 (7th Cir.1976) (per curiam).

These cases demonstrate that the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer. Courts applying a per se rule appear to do so only where the attorney was never properly licensed to practice. ² No published case of which we are aware has applied a per se rule merely because the attorney was not properly credentialed in the jurisdiction in which the case arose. ³

If Alvarado possessed sufficient skill to represent Maria-Martinez, the argument for a per se ineffectiveness rule depends solely upon the conflict of interest created by Alvarado's unauthorized representation in a court of the Fifth Circuit. The present situation lies somewhere between the typical per se case, in which the attorney is subject to criminal sanctions for practicing law without a license, and the typical factual-determination case, in which the attorney is only suspended from a predicate state bar, is suspended for a technical violation, or does not know he is suspended.

The most closely analogous case is Bellamy, in which the Second Circuit declined to apply a per se standard. See Bellamy, 974 F.2d at 303. In that case, the attorney, Guran, postponed a disciplinary hearing with a statement by his doctor that he was ill, had trouble concentrating, and would be incapacitated for some time. Id. at 303-04. Based on this statement, the hearing was postponed. The disciplinary committee attempted to have Guran suspended from the practice of law on the basis of his illness, but Guran begged them to refrain from taking this step. He complained of the stigma attached to suspension, pointed out that he had been retired, aside from Bellamy's case,...