Plumlee v. Sue Del Papa

• Decision Date: 18 October 2005
• Docket Number: No. 04-15101.,04-15101.
• Citation: 426 F.3d 1095
• Parties: Lary James PLUMLEE, Petitioner-Appellant, v. Frankie SUE DEL PAPA; John Ignacio, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

426 F.3d 1095

Lary James PLUMLEE, Petitioner-Appellant, v. Frankie SUE DEL PAPA; John Ignacio, Respondents-Appellees.

No. 04-15101.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2004.

Filed October 18, 2005.

COPYRIGHT MATERIAL OMITTED

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant.

Victor-Hugo Schulze II, Deputy Attorney General, Las Vegas, NV, for the respondent-appellee. With him on the briefs was Joseph W. Long.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-00-00244-DWH/VPC.

Before BETTY B. FLETCHER, THOMAS, and BEA, Circuit Judges.

Opinion by Judge B. Fletcher; Dissent by Judge Bea

B. FLETCHER, Circuit Judge.

Defendant-appellant Lary James Plumlee ("Plumlee"), convicted of murder and armed robbery in Nevada state court in 1992, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Plumlee claims that his Sixth Amendment right to counsel was violated by the trial judge's denial of Plumlee's pre-trial motion to substitute counsel on the basis of an irreconcilable conflict that precluded Plumlee's counsel from acting in the role of an advocate. At the time he moved the trial court to appoint alternate counsel, Plumlee reasonably and in good faith believed that members of the Washoe County Public Defender's Office were leaking information about his case to another suspect in the case and to the District Attorney. The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all. The judge declined to appoint new counsel. Given the circumstances of this unusual case, we conclude that the judge abused his discretion and that the Nevada Supreme Court's contrary conclusion involved an unreasonable application of clearly established federal law. We therefore reverse.

I. BACKGROUND

In 1991, Plumlee was charged in Nevada state court with the armed robbery and murder of Wilbur Richard Beard. Over the course of Plumlee's representation by the Washoe County Public Defender's Office during 1991 and 1992, a series of incidents caused Plumlee to lose confidence in the attorneys of that office. Three such incidents stand out.

First, Chief Deputy Public Defender Shelly O'Neill was a good friend of John Dewey, who was both Plumlee's roommate prior to his arrest and a suspect for the murder. Shortly after Plumlee's arrest, Plumlee heard that O'Neill, who was the head trial attorney in the Public Defender's Office, had been discussing Plumlee's case with Dewey. Specifically, according to Plumlee's sister, Dewey said that O'Neill had told him that Plumlee had implicated Dewey in the murder, and that O'Neill had suggested Dewey should seek legal counsel.

Second, David Allison, Plumlee's first appointed counsel at the Public Defender's Office, accepted a position with the District Attorney's Office while representing Plumlee. According to Plumlee, Allison lied to him about the fact that he would be taking the job. Prior to Allison's departure for the District Attorney's Office, Plumlee also suspected that Allison was leaking information to the District Attorney's Office. Plumlee's suspicions arose because he had told Allison about the potential evidentiary value of his car and evidence that might be in it, and shortly thereafter, the vehicle, then in police custody, was destroyed.

Third, Steven Gregory, Plumlee's second appointed counsel at the Public Defender's Office, denied the existence of a bail order for Plumlee. Plumlee claims that, when he insisted it existed, Gregory told him he needed psychiatric treatment. The next morning, the District Attorney produced a copy of the order.

Trial was originally set for July 20, 1992. In a series of appearances and pleadings during late May and early June 1992, Plumlee moved the trial court to appoint independent defense counsel to represent him because the distrust between him and the Washoe County Public Defender's Office had risen to the point that members of the office could not effectively represent him.

Gregory, who was representing Plumlee at the time of his motion to substitute counsel, corroborated Plumlee's assessment of their relationship and even made his own motion to be relieved as counsel.¹ In his affidavit accompanying Plumlee's first motion to relieve counsel, Gregory attested that Plumlee distrusted the Public Defender's Office and believed that members of the office had leaked information about his case. As a result, Gregory explained, Plumlee was "unable to establish an attorney/client relationship with me or any of my colleagues in the Public Defender's Office" and was therefore "unable to properly assist counsel in his defense." At the hearing on the first motion to relieve counsel, Gregory pleaded with the court to be relieved:

I must say, from my first dealings with Mr. Plumlee, I felt that there was an atmosphere of mistrust. I found it very difficult to establish a relationship with Mr. Plumlee because of the matters that had occurred prior to my even going to work at the Public Defender's Office.

Your Honor, in addition, I cannot think of a case where I have felt compelled to file a Motion To Be Relieved as a Nevada State Public Defender or as a Washoe County Public Defender. This is unique

. . . .

. . .

[C]ertainly the failure to properly communicate with counsel or to have confidence or trust in him deters [counsel's] effectiveness. And that's, in reality, the situation we have here.

. . .

[B]ecause of Mr. Plumlee's mistrust with the Public Defender's Office and anyone attached to the Public Defender's Office, he is unable to properly assist me, therefore, making my efforts less than effective.²

After hearing from both Plumlee and Gregory about the lack of trust between them, Judge Lane, the trial judge, denied the various motions to relieve the Washoe County Public Defender's Office and have new counsel appointed. The judge told Plumlee: "Now let me tell you what you are not going to get. You are not going to get this Court to appoint some private lawyer, so that is out." After Judge Lane made clear for the final time that he would not appoint substitute counsel, Plumlee moved to represent himself. Judge Lane granted Plumlee's motion and appointed Gregory and the Public Defender's Office to act as standby counsel. Gregory responded:

Your honor, we will make a motion at this time to be relieved. It's obvious that the reason Mr. Plumlee wants to represent himself is he doesn't trust the Public Defender's Office. To order us to be stand-by counsel, in effect, gives him no stand-by counsel, and I would urge the Court to appoint some other counsel to represent him.

The main reason this man wants to go pro per is because he doesn't trust us and, frankly, Judge, I don't trust the relationship that I have with Mr. Plumlee. . . .

I am going to beg the Court to appoint outside counsel to act as legal advisor for Mr. Plumlee.

Judge Lane denied the motion.

Judge Lane held an additional hearing to ensure the voluntariness of Plumlee's decision to opt for self-representation. When asked whether he wanted to represent himself, Plumlee replied: "I don't have a choice, Your Honor." The judge responded: "You have a choice. The choice you don't have, unless I am ordered otherwise by the Supreme Court, you do not have the choice of this Court appointing somebody other than the Public Defender." Plumlee then petitioned the Nevada Supreme Court for a writ of mandamus to force Judge Lane to appoint outside counsel. The writ was denied.

Plumlee represented himself at trial. He was convicted by the jury and sentenced to two consecutive life terms in prison and two consecutive nine-year terms to run concurrently with the life terms.

On direct appeal, Plumlee claimed, inter alia, that the trial court's denial of his motion to substitute counsel violated his Sixth Amendment right to counsel and that his resulting decision to represent himself was not voluntary. The Nevada Supreme Court dismissed the appeal. That court's entire analysis of Plumlee's claim was as follows:

Absent a showing of adequate cause, a defendant is not entitled to reject court-appointed counsel and substitute other counsel at public expense. Thomas v. State, 94 Nev. 605, 607, 584 P.2d 674, 676 (1978). It is within the sound discretion of the trial court to decide whether friction between counsel and client justifies appointment of new counsel. Id. A defendant's refusal to cooperate with appointed counsel is no basis for a claim of inadequate representation. Id. at 608, 584 P.2d at 676. "Requiring a defendant to choose between waiving counsel and continuing with present counsel is not constitutionally offensive unless defendant's objections to existing counsel are such that he has a right to new counsel." State v. Staten, 60 Wash.App. 163, 802 P.2d 1384, 1387 (1991). Appellant never showed adequate cause justifying appointment of new counsel, and the court below did not abuse its discretion in refusing to do so.

The issue was never freshly analyzed by the state habeas courts, as both the trial and appellate habeas courts considered the issue foreclosed by the Nevada Supreme Court's ruling on direct appeal.

Nonetheless, at Plumlee's evidentiary hearing on state habeas, Judge Lane himself suggested that Plumlee's distrust of the Washoe County Public Defender's Office was justified. Though Judge Lane recognized that Plumlee had given his lawyers conflicting accounts of his involvement with the murder, and the judge ultimately credited both David Allison's testimony that he had been candid with Plumlee about his plans to join the District Attorney's Office and Shelly O'Neill's testimony that she had not leaked information about Plumlee's case,³ the judge's remarks indicate...