87 F.3d 1109 (10th Cir. 1996), 94-3352, Edens v. Hannigan

Docket Nº:94-3352.
Citation:87 F.3d 1109
Party Name:James M. EDENS, Petitioner-Appellant, v. Robert D. HANNIGAN and Attorney General of Kansas, Respondents-Appellees.
Case Date:June 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1109

87 F.3d 1109 (10th Cir. 1996)

James M. EDENS, Petitioner-Appellant,

v.

Robert D. HANNIGAN and Attorney General of Kansas,

Respondents-Appellees.

No. 94-3352.

United States Court of Appeals, Tenth Circuit

June 20, 1996

Page 1110

[Copyrighted Material Omitted]

Page 1111

David J. Gottlieb, University of Kansas School of Law, Kansas Defender Project, Lawrence, Kansas, for Petitioner-Appellant.

Jon P. Fleenor, Assistant Attorney General, Office of the Attorney General, Topeka, Kansas, for Respondents-Appellees.

Before EBEL and LOGAN, Circuit Judges, and HOLMES, District Judge. [*]

EBEL, Circuit Judge.

In October of 1979, a jury convicted James M. Edens of felony murder, aggravated robbery, conspiracy, and aiding a felon. After exhausting his state remedies, Edens filed a petition for writ of habeas corpus in the United States District Court for the District of Kansas pursuant to 28 U.S.C. § 2254, claiming that he was denied his Sixth Amendment right to counsel. Edens' counsel also represented a co-defendant. Although Edens did not object to the dual representation at the time of trial, he asserts in this action that his counsel labored under an actual conflict of interest which adversely affected his counsel's performance, thereby entitling him to a new trial. We agree, and reverse the district court ruling which had denied Edens' petition. 1

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BACKGROUND

By a complaint filed January 15, 1979, Edens was charged in the District Court of Sedgwick County, Kansas, with felony murder, robbery, aiding a felony, and illegal possession of a weapon. The charges arose out of the robbery of a pharmacy that occurred on December 15, 1978. Also charged with Edens were codefendants Glendal A. Rider and Clark W. Lemons. The following are the facts of this case as the Supreme Court of Kansas found them in 1981. See State v. Rider, 229 Kan. 394, 625 P.2d 425, 428-29 (1981).

In late 1978, Rider was residing at Larned State Security Hospital as a result of pleading guilty to previous charges of burglary, robbery, felony murder and other crimes. On December 5, Rider escaped from Larned and fled to Wichita where he established contact with Edens. Edens arranged for Rider to stay at the home of John and Carol Leisek while Rider decided what to do next.

On December 15, Edens, Rider, and Lemons had a conversation in Leisek's home. Leisek testified that he overheard either Lemons or Edens use the words "robbery" and "Hudson Pharmacy." After this conversation, Rider stole a 1972 yellow Chevrolet Malibu to use in the robbery of Hudson Pharmacy. Later that evening, Edens drove Rider and Lemons to where the stolen car was parked. Rider and Lemons then drove the car to within one block of the Hudson Pharmacy, and parked the car. The two men entered the pharmacy by walking through a nearby yard.

Rider and Lemons entered the pharmacy brandishing handguns and demanding money and narcotics. The pharmacy phone rang constantly throughout the robbery. As the two men fled, Rider shot at an elderly man the two men encountered as they crossed the yard of a neighboring home. Also, as Rider began to drive away from the curb, another car was passing and the two cars almost collided. This near collision caused an altercation which ultimately resulted in Rider shooting and killing the other driver. Rider testified that he shot the man because it appeared the man had a gun, although it turned out that he had only a knife. Rider and Lemons then fled in the stolen Malibu.

Edens returned to the Leisek residence about 7:30 p.m. Edens and Leisek then drove to the convenience store across the street from the Hudson Pharmacy, where Leisek retrieved a piece of paper from the telephone booth near the store, tore it up and threw it away. After determining that Rider and Lemons were not at the designated pickup location, Edens and Leisek went to Lemons' house where they joined Lemons and Rider. Two days after the robbery and murder, Rider was apprehended. Shortly thereafter, Lemons was arrested. Edens was arrested approximately thirty (30) days later. Leisek was ultimately given immunity for his testimony.

At trial, Edens and codefendant Lemons were represented jointly by Russell Schultz. Edens was Lemons' brother-in-law and Lemons' family paid for the representation of both defendants. At trial Rider testified the shooting was in self-defense. Lemons testified that his actions were compelled by his fear of Rider. Edens did not testify or put on evidence in his defense.

In October 1979, Edens was convicted of felony murder, aggravated robbery, conspiracy, and aiding a felon, and was sentenced to life in prison. His conviction was affirmed by the Supreme Court of Kansas on March 18, 1981. State v. Rider, 229 Kan. 394, 625 P.2d 425 (1981). 2 Seven years after the appeal, on July 25, 1988, Edens filed a pro se application to vacate his conviction and sentence in the Sedgwick County, Kansas District Court pursuant to K.S.A 60-1507. The court denied relief and Edens appealed. The

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Kansas Court of Appeals reversed Edens' conviction of aggravated robbery, but denied his claim of ineffective assistance of counsel based on joint representation. Edens v. State, No. 64,111, 796 P.2d 1075 (Kan.Ct.App. Aug.31, 1990) (unpublished opinion). The Supreme Court of Kansas denied Edens' Petition for Review on November 13, 1990.

On November 16, 1992, Edens filed an application for writ of habeas corpus in the United States District Court for the District of Kansas pursuant to 28 U.S.C. § 2254. Once again Edens raised his claim of ineffective assistance of counsel due to joint representation. On April 1, 1993, the state filed a motion to dismiss pursuant to Fed.R.Civ.P. 9(a), claiming respondents had been prejudiced by Edens' delay in filing the petition. The state argued that because trial counsel was dead, respondents could not adequately respond. However, the district court denied this motion, holding that Schultz died so soon after Edens' direct appeal was resolved that it was inevitable Schultz would have been deceased before Kansas could have considered Edens' collateral attack, no matter how promptly such a challenge had been filed. Hence, Kansas was not prejudiced by Edens' delay in filing his state habeas action. The state does not appeal that ruling so we do not consider it further.

Edens argues there was a conflict of interest between him and codefendant Lemons, and that he was deprived of his Sixth Amendment right to effective assistance of counsel when Schultz represented both of them. Because Edens failed to raise this Sixth Amendment objection at trial, the district court determined that his conviction could be overturned only if Edens were able to demonstrate that an actual conflict of interest adversely affected his lawyer's performance. See United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990).

In an attempt to show specific instances of an actual conflict adverse to his interests, see U.S. v. Martin, 965 F.2d 839, 842 (10th Cir.1992), Edens cited seven errors: (1) Edens was instructed by his attorney that he could not testify because it would jeopardize Lemons' defense; (2) Edens' attorney did not pursue plea negotiations on behalf of Edens once it became clear that there would be no deal for his codefendant, Lemons; (3) Edens' attorney did not cross-examine codefendant Lemons when it would have been in Edens' best interest to do so; (4) Edens' attorney did not cross-examine Leisek when Leisek implicated Edens as the individual who telephoned the pharmacy; (5) Edens' attorney did not interview or call a witness who would have testified that Leisek was the telephone caller; (6) Edens' attorney presented no defense for Edens; and (7) Edens' attorney favored codefendant Lemons because Lemons and his family provided the fee for both Lemons and Edens.

In determining there was no actual conflict, the district court held that although Edens may not have received a perfect trial, he did receive effective...

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