Thomas v. Foltz
| Decision Date | 01 May 1987 |
| Docket Number | No. 86-1706,86-1706 |
| Parties | Joseph THOMAS, Petitioner-Appellee, v. Dale E. FOLTZ, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas C. Nelson argued, Asst. Atty. Gen., Lansing, Mich., for respondent-appellant.
Elizabeth L. Jacobs argued, Detroit, Mich., for petitioner-appellee.
Before MARTIN and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.
Dale E. Foltz, warden of the state prison in Jackson, Michigan, appeals from the judgment of the district court granting Joseph Thomas' petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Appellant challenges the finding made below that the counsel who represented Thomas at a plea proceeding was ineffective because there was an actual conflict of interest which adversely affected the representation of Thomas. For the reasons which follow, we affirm the grant of the writ.
In 1975, petitioner Thomas and two codefendants, Jeffrey Dorsey and Charles Perkins, were indicted on charges of first degree murder under Mich.Comp.Laws Ann. Sec. 750.316 in connection with the December 6, 1974 shooting deaths of two Detroit residents in their home. On December 6, 1974, Thomas and Perkins were present at Dorsey's house when Thomas observed Dorsey's neighbors leaving their home. Thomas, Dorsey and Perkins then entered the neighbors' home with plans to burglarize it. While they were in the house, the residents returned and were shot to death. The female resident called the police emergency number before she and her husband were shot; thus, the shooting was tape-recorded. There were at least three different volleys within a four minute period, during which the victims were shot at least twenty times by at least four weapons.
After all three defendants were arrested, Perkins' wife hired Charles Campbell to represent Perkins. She did not hire Campbell to represent either of the other two defendants. Campbell subsequently visited Thomas and Dorsey in the Wayne County Jail and showed them news clippings about his prior cases. Dorsey retained Campbell as his counsel and arranged to have a friend pay Campbell. Thomas later also accepted Campbell's representation, although he did not personally retain Campbell. The defendants made no objection concerning the joint representation.
Campbell later stated that it was his practice to bring his press clippings with him to client interviews. Although he did not recall how he came to represent Thomas and Dorsey, Campbell expressly denied having solicited either of them. Nonetheless, Campbell in fact represented all three codefendants.
At the pretrial conference held several weeks prior to jury selection, the assistant prosecutor who handled the case, Ronald Schigur, offered to reduce the charges to second degree murder if each of the defendants agreed to plead guilty. Schigur's policy was to always require that all the defendants accept the plea agreement as a package deal; if any one of the defendants did not plead, none were permitted to enter a plea individually. No action was taken on the plea offer at that time.
Jury selection began on March 12, 1975. During selection, Campbell observed that the jury appeared to be predisposed against the defendants. The case had, in fact, been highly publicized in Detroit.
After the jury was selected, Judge Del Rio, then a judge of the Recorder's Court of Detroit, recessed for lunch. During the recess, Campbell discussed with Judge Del Rio the possibility of all three defendants pleading guilty to the lesser charges of second degree murder. According to Campbell, Judge Del Rio demanded that all three defendants plead; otherwise, none would be permitted to plead. Schigur was not privy to the discussion, since he had left when the court recessed.
Campbell then discussed with the defendants the possibility of entering guilty pleas, and recommended that they do so. Neither Thomas nor the other defendants were initially willing to plead. In fact, it took Campbell "perhaps an hour ... to encourage them to plead guilty." Campbell acknowledged that he "had to lean on the defendants" much more than usual, but he believed that the defendants had no practical alternative but to plead guilty. He absolutely did not consider making an offer of having one of the defendants, such as Thomas, testify against the other two. According to Campbell, that would have been "grossly unfair," since he was representing all three defendants. Neither Campbell nor Judge Del Rio perceived any potential conflict of interest problems.
According to defendant Dorsey, he was the first to agree to plead guilty; Campbell had convinced him that if he did not plead, he would be found guilty anyway. Dorsey acknowledged that for a time he was the only one to agree to plead and that he attempted to convince the other two defendants to plead as well, since he knew it was a "package" deal. Dorsey remembered Judge Del Rio entering the room where the plea discussions were taking place and instructing him to convince the other defendants to plead guilty. Judge Del Rio purportedly said that the defendants could not escape conviction due to the publicity. Judge Del Rio also stated that although he would be compelled to initially impose harsh sentences as a result of the extensive publicity, he would reconsider the sentences in a few years. 1
Perkins remembered that he was the next defendant to agree to plead. Based on Campbell's representations, he believed that he and his codefendants could not escape convictions of guilty, whether or not they went to trial.
Thomas was the last to agree to plead guilty. According to Thomas, his decision to plead was based in part on the knowledge that pleas from all three defendants were necessary for the plea bargain. He also believed that he was forced to enter the plea by Campbell and Judge Del Rio.
When assistant prosecutor Schigur returned at about 2:00 p.m., Campbell announced in open court that all three defendants would plead guilty to second degree murder. Thus, on March 12, 1975, all three defendants entered pleas of guilty in the Detroit Recorder's Court to the reduced charges of second degree murder.
On March 19, 1975, Judge Del Rio held a plea and sentencing hearing at which Campbell explained that he had fully informed the defendants of the nature of their pleas. He further stated that he had explained to the defendants that the critical difference between first and second degree murder under Michigan law is that second degree murder is a parolable offense while first degree murder invokes a mandatory life sentence without parole.
All three defendants also testified at the hearing. Thomas testified that although he was in the house and was carrying a gun when the shootings occurred, he did not shoot anyone. 2 In fact, Thomas claimed that he did not fire a shot. Campbell reiterated this fact in a closing comment to the court. Judge Del Rio subsequently sentenced Thomas to two concurrent terms of forty to one hundred years in prison.
Thomas pursued all possible avenues of appeal, with the Michigan Supreme Court twice denying his petitions for leave to appeal to that court. Thomas thereafter filed, on October 15, 1984, the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. As grounds for relief, Thomas alleged that he was denied effective assistance of counsel when Campbell represented him and his codefendants at both the guilty plea and sentencing proceedings. Thomas also alleged exhaustion of all available state remedies.
The case was referred to a magistrate who held evidentiary hearings at which defense attorney Campbell, defendants Thomas, Perkins, Dorsey, assistant prosecutor Schigur and Judge Del Rio all testified. On March 14, 1986, the magistrate issued an extensive Report and Recommendation recommending that the petition be granted as to Thomas' claim of ineffective assistance of counsel. The magistrate determined that Campbell was ineffective because there was an actual conflict of interest which adversely affected his performance as Thomas' independent counsel. According to the magistrate, the combination of the contingent plea agreement and the multiple representation of all codefendants created the actual conflict. Specifically, the magistrate found that an actual conflict existed because Campbell "may have thought it necessary to put pressure on the more reluctant defendants to obtain the bargain for all of them." The magistrate also believed that the "all or nothing" plea offer may have caused Campbell to forego the possibility of having one defendant plead guilty without the others pleading. With regard to whether the conflict affected Campbell's representation, the magistrate concluded that it had, finding that Campbell's pressuring to obtain a united plea was one of the "substantial reasons" Thomas pled guilty.
After objections were timely submitted, the district court entered an order on July 8, 1986, adopting the magistrate's Report and Recommendation and granting a conditional writ of habeas corpus. The order provided for Thomas' unconditional release from custody if a new trial date was not scheduled within ninety days. Respondent Foltz then brought this timely appeal from the district court's order.
We must determine whether Thomas was denied effective assistance of counsel due to a conflict of interest, where his attorney jointly represented all the defendants, the defendants were presented with an "all or nothing" plea agreement, and Thomas was reluctant to accept the agreement but was persuaded to do so by counsel.
The starting point for analyzing a claim of ineffective assistance of counsel is the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under that standard, a criminal defendant must show both that...
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