Caban v. U.S., 01-1451.

• Decision Date: 28 February 2002
• Docket Number: No. 01-1451.,01-1451.
• Citation: 281 F.3d 778
• Parties: Jose Antonio CABAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 778

281 F.3d 778

Jose Antonio CABAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-1451.

United States Court of Appeals, Eighth Circuit.

Submitted: August 20, 2001.

Filed: February 28, 2002.

Deborah Ellis, argued, St. Paul, MN, for appellant.

Jeffrey S. Paulsen, Asst. U.S. Atty., argued, St. Paul, MN, for appellee.

BEFORE: BYE, LAY, and JOHN R. GIBSON, Circuit Judges.

LAY, Circuit Judge.

Jose Antonio Caban appeals from the denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Caban asserts as grounds for relief ineffective assistance of trial counsel under the Sixth Amendment. He ascribes this alleged constitutional error to a conflict of interest purportedly arising from his trial counsel's relationship with a potential defense witness. This witness, Caban's former attorney, was not called at trial. According to Caban, this decision resulted from his attorney's divided loyalties and now entitles him to relief under § 2255. The district court denied relief.¹ We reject Caban's arguments and affirm the denial of his § 2255 motion.

On July 1, 1997, Caban was indicted on one count of conspiracy to distribute and possess with intent to distribute cocaine and methamphetamine and two counts of use of a communication facility in committing a felony. Caban was initially represented by attorney A. Demetrius Clemons. At Caban's arraignment, it was determined that Clemons had a conflict of interest, as he also represented Samson Jegede, an indicted coconspirator. Subsequently, the presiding magistrate appointed attorney Michael McGlennen to represent Caban.

Clemons and McGlennen were no strangers. They shared a Minneapolis office. McGlennen was a godparent to Clemons' daughter. McGlennen also represented Clemons in disciplinary proceedings before the Minnesota Board of Professional Responsibility. At the time of Caban's trial, Clemons was on probation, and McGlennen continued to receive correspondence from the board on Clemons' behalf. However, McGlennen declined to characterize his representation of Clemons as an "active case" and conceded the relationship was not a traditional lawyer-client relationship at the time of Caban's trial.

Samson Jegede, who pleaded guilty to the charges against him, testified against Caban at trial. Jegede's testimony was damaging. He confirmed that two wiretapped phone conversations between Caban and Jegede referred, if cryptically, to their conspiracy to distribute drugs.² He testified that cash found in his residence upon his arrest was money Caban paid to him on a drug debt. He also admitted lying to police in an earlier statement. He alleged that his attorney, Clemons, who was being paid by Caban at the time, encouraged him to falsely deny Caban's involvement in the conspiracy. He also stated that Clemons encouraged him to sign a false bill of sale for a boat purchased by Caban from Jegede. On appeal, Caban now alleges that the bill of sale refutes Jegede's testimony that Caban referred to a drug conspiracy in the wiretapped phone calls.³

The instant dispute arises from McGlennen's failure to call Clemons to refute Jegede's testimony that the bill of sale was false. According to Caban, Clemons could testify that Jegede's signature on the bill of sale was genuine. However, Caban argues, McGlennen's personal and professional relationship with Clemons prevented him from calling Clemons as a witness or offering the bill of sale as evidence.

McGlennen concedes the truth of these allegations. He testified at the evidentiary hearing on Caban's § 2255 motion that his personal feelings for Clemons caused him to refrain from calling Clemons because the prosecutor had promised a searching cross-examination into Clemons' ethical improprieties. McGlennen stated he did not want to subject Clemons to embarrassment. He also stated he did not offer the bill of sale because, if he did, the prosecutor had opined it was his ethical obligation to refer Clemons to the Board of Professional Responsibility for his involvement in allegedly falsifying the document. McGlennen stated these conflicts caused him to provide ineffective assistance to Caban.

At the conclusion of the evidentiary hearing, the trial court found there was no conflict of interest. The court found McGlennen was not a credible witness and his failure to call Clemons or introduce the bill of sale had been the result of strategic considerations, not divided loyalty. Thus, the court denied Caban's request for post conviction relief.

Analysis

The Sixth Amendment guarantees defendants effective assistance of counsel. "The Sixth Amendment right to counsel has been interpreted to provide for representation that is `free from conflicts of interest or divided loyalties.'" United States v. Reed, 179 F.3d 622, 624 (8th Cir.1999) (quoting United States v. Acty, 77 F.3d 1054, 1056 (8th Cir.1996)). However, the Supreme Court has placed the burden on defendants to prove violation of this guarantee. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the general standard. First, the defendant must show that his attorney's performance was deficient, that it "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Second, the defendant must show the inadequate representation prejudiced his defense by depriving him of a fair trial, defined as "a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. This is a heavy burden.

In two cases prior to Strickland, however, the Court held the burden may be lighter for defendants who assert ineffective assistance of counsel because of a conflict of interest involving their attorney. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), addressed situations where the trial court is made aware of a potential conflict of interest before, during, or in some instances, after trial. Under those circumstances, the Court held the trial court has a duty to conduct a searching inquiry into the possibility of a constitutional violation arising from that conflict. See Wood v. Georgia, 450 U.S. 261, 272 n. 18, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (noting that Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), "mandates a reversal when the trial court has failed to make an inquiry even though it `knows or reasonably should know that a particular conflict exists'"). Failure to undertake this inquiry mandates an automatic reversal of any conviction "upon a showing of possible prejudice." Atley v. Ault, 191 F.3d 865, 873 (8th Cir.1999); see also id. at 870 ("[W]hen a trial court fails to discharge its constitutional duty to determine whether the defendant is receiving assistance of counsel unburdened by a conflict of interest, prejudice is presumed and reversal of the conviction is automatic.") (citing Holloway). This per se rule of reversal applies regardless of the nature of the conflict. Atley, 191 F.3d at 870 n. 4.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333, addressed situations where the trial court is never made aware of the conflict of interest. The Court held, to establish a conflict of interest, the defendant must show that defense counsel "actively represented conflicting interests," id. at 350, 100 S.Ct. 1708, and this conflict "adversely affected his lawyer's performance." Id. at 348, 100 S.Ct. 1708. If the defendant can show the existence of these two factors, he is entitled to relief without having to prove actual prejudice. See Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708. Rather, prejudice is presumed. Id. ("Once the Court concluded that [an attorney] had an actual conflict of interest, it refused `to indulge in nice calculations as to the amount of prejudice' attributable to the conflict. The conflict itself demonstrated a denial of the `right to have the effective assistance of counsel.' Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.") (quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).

Since Cuyler, the Court has applied this "almost per se rule of prejudice" where a defendant raises the issue of a conflict of interest for the first time on appeal or in a motion for post-conviction relief. See, e.g., Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing Cuyler); Wood, 450 U.S. at 272, 101 S.Ct. 1097; Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708 (citing Glasser, 315 U.S. at 76, 62 S.Ct. 457). However, the Court has never applied Cuyler's rule of presumed prejudice outside the context of multiple representation of codefendants or serial defendants. See, e.g., Nix v. Whiteside, 475 U.S. 157, 176, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); see also Beets v. Scott, 65 F.3d 1258, 1268 (5th Cir.1995) ("Cuyler, a multiple representation case, restated a rule developed in multiple representation cases.").

Consequently, the recent trend among the circuits has been to limit application of the "almost per se rule of prejudice." When facing cases where the trial court had no notice of a conflict, a number of our sister circuits have stated that not all conflicts of interest are well suited to resolution under the strict rule of Cuyler. See, e.g., Williams v. Calderon, 52 F.3d 1465, 1472-73 (9th Cir.1995) (refusing to extend Cuyler treatment to an alleged conflict between a pro bono client and his attorney's financial interests); United States v. Zackson, 6 F.3d 911, 919-22 (2d Cir.1993) (refusing to extend per se treatment to alleged conflict arising from attorney's time constraints). Another circuit has explicitly held that Strickland's requirement that the defendant prove actual prejudice is the proper standard in conflict situations other than those involving multiple representation of codefendants, the kind...