Plumlee v. Del Papa

Citation465 F.3d 910
Decision Date11 October 2006
Docket NumberNo. 04-15101.,04-15101.
PartiesLary James PLUMLEE, Petitioner-Appellant, v. Frankie Sue DEL PAPA; John Ignacio, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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, SIDNEY R. THOMAS, and CARLOS T. BEA, Circuit Judges.

ORDER AMENDING OPINION AND DISSENT AND AMENDED OPINION AND AMENDED DISSENT

BETTY B. FLETCHER, Circuit Judge.

ORDER

The majority opinion and the dissenting opinion filed October 18, 2005, slip op. 14223, appearing at 426 F.3d 1095 (9th Cir.2005), are hereby amended. The amended opinion and amended dissent are filed concurrently herewith. The opinion and dissent are amended as follows:

1. Addition of footnote to 426 F.3d at 1107, end of paragraph 2:

Recently, in United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Supreme Court reaffirmed that the Sixth Amendment guarantees not only the right to legal counsel, but also the distinct right of a criminal defendant to be represented by his attorney of choice. Writing for the majority, Justice Scalia further held that "erroneous deprivation of the right to counsel of choice" is structural error requiring the reversal of a subsequent conviction. Id. at 2564. The Court also explicitly noted that the right to counsel of choice "does not extend" to cases in which defendants "require counsel to be appointed for them." Id. at 2565.

Plumlee's claim is different. He was deprived entirely of legal counsel. The deprivation he suffered is different in kind and even greater than that suffered by Gonzalez-Lopez. To be sure, Plumlee claims that he did not want to be represented by his particular attorney. But the constitutional violation was not that he was denied "the right to counsel of[his] choice." Id. at 2562. Instead, it was that the justifiable distrust of his attorney became so acute that Plumlee was denied his clearly established Sixth Amendment right to have an attorney "acting in the role of an advocate." Anders, 386 U.S. at 743, 87 S.Ct. 1396.

(to the Dissent)

2. Addition of footnote to 426 F.3d at 1121, end of last full paragraph on the page:

The majority asserts that the Supreme Court's recent decision in United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) "reaffim[s] that the Sixth Amendment guarantees not only the right to legal counsel, but also the distinct right of a criminal defendant to be represented by his attorney of choice." 426 F.3d at 1107 n. 8. The majority mischaracterizes the Gonzalez-Lopez holding. Gonzalez-Lopez did not recognize the right of a criminal defendant to counsel "of his choice" anymore than it recognized the "right" of a shopper to goods "of his choice" in a shop—that is, unless the shopper pays for the goods or convinces the store-keeper to make them a present. The first paragraph of the majority's footnote would be less liable to be quoted mischievously in the future, were the opinion to survive, if the words "of his choice" carry with them: "so long as he could arrange to pay such counsel, or have such counsel agree to render services without expectation of payment."

OPINION

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...

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