Birch v. Neven
| Decision Date | 07 December 2015 |
| Docket Number | Case No. 2:11-cv-00516-GMN-CWH |
| Parties | BRUCE BIRCH, Plaintiff, v. DWIGHT NEVEN, Defendant. |
| Court | U.S. District Court — District of Nevada |
This counseled habeas petition is before the court for a decision on the merits (ECF No. 71).
In his amended petition, petitioner Birch challenges three separate criminal convictions (ECF No. 71). Birch was charged with conspiracy to commit burglary in Case No. CR07-1714A (the Home Depot case), for allegedly attempting to steal various items from a Home Depot store in June, 2007. He was charged with burglary in Case No. CR08-1585 (the Sears case), for allegedly stealing several wrenches from a Sears store on February 21, 2008. And he was charged with possession of a stolen Ford truck in a Walmart parking lot on February 21, 2008, in Case No. CR08-1586 (the Ford truck case).
Birch pled guilty in the Home Depot case (exhibits to first amended petition, ECF No. 71, exhs. 14, 15)1 and went to trial on the Sears and Ford truck cases. A jury foundBirch guilty in both cases. Exhs. 113, 114. On March 27, 2009, the state district court conducted a sentencing hearing on all three convictions. Exh. 111. The court adjudicated Birch a habitual criminal and sentenced him as follows: in the Home Depot case, to a term of 19 to 48 months; in the Sears case, to a term of life without the possibility of parole, consecutive to the Home Depot sentence; and in the Ford truck case, to a term of life without the possibility of parole, concurrent to the Sears sentence. Id. at 41-42; Exhs. 112-114. The three judgments of conviction were entered that same day. Exhs. 112-114.
Birch appealed the three convictions and filed three separate appellate briefs. Exhs. 116, 118, 120, 153, 155, 156. The Nevada Supreme Court consolidated the appeals and affirmed the three convictions on March 11, 2010. Exh. 163. Remittitur issued on April 7, 2010. Exhs. 164-166. Birch did not file a state postconviction petition.
This Court granted respondents' motion to dismiss in part (ECF No. 89) and Birch elected to abandon his unexhausted claims (Exh. 90). Respondents have answered the remaining grounds (ECF No. 94), and Birch filed a counseled reply (ECF No. 98).
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86 (2011). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398 (2011) () (internal quotation marks and citations omitted).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the statecourt's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
a. Sixth Amendment Right to Counsel Claims
Ground 1
Birch asserts as ground 1A that he was denied his Sixth Amendment right to conflict-free counsel because an actual conflict of interest between Birch and his counsel existed (ECF No. 71, pp. 22-34). In ground 1B, petitioner claims that the trial court violated his Sixth Amendment rights by failing to grant his motion for substitute counsel based on a breakdown in the attorney-client relationship. Id. at 22, 34-35).
The Sixth Amendment right to counsel encompasses a right to representation free from conflicts of interest. Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir.2004). To establish a violation of the right to conflict-free counsel, the petitioner must show either that (1) in spite of an objection, the trial court failed to allow him the "opportunity to show that potential conflicts impermissibly imperil his right to a fair trial;" or (2) that an actual conflict of interest existed. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Alberni v. McDaniel, 458 F.3d 860, 869-870.
In several cases in which the United States Supreme Court has defined the right to conflict-free counsel, the defense attorney actively and concurrently represented conflicting interests. Mickens v. Taylor, 535 U.S. 162, 166-167 (2002) (discussing earlier authority); see also Holloway v. Arkansas, 435 U.S. 475 (1978) (attorney representing co-defendants); Cuyler, 446 U.S. at 337-38 (same). In those cases, theCourt created, in effect, a distinction between an actual conflict of interest, and a mere hypothetical one. Indeed, in Mickens, the Court held that "actual conflict" is defined by the effect a potential conflict had on counsel's performance, explaining that: "an actual conflict of interest [means] precisely a conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties." Id. at 171; 172 n. 5 ("[W]e have used 'conflict of interest' to mean a division of loyalties that affected counsel's performance.").
With respect to a breakdown in the attorney-client relationship, the Supreme Court has made it clear that the Sixth Amendment guarantee of counsel does not guarantee a meaningful attorney-client relationship. Morris v. Slappy, 461 U.S. 1, 14 (1983). The Ninth Circuit has noted that if a conflict is of an indigent defendant's own making, that is if he or she sabotaged the attorney-client relationship or failed to make reasonable efforts to develop the relationship, he may still have "received what the Sixth Amendment required in the case of an indigent defendant." Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000).
The following problems between Birch and several attorneys who attempted to represent him are reflected by the record and set forth both in Birch's amended petition and respondents' answer (ECF Nos. 71, 94). Birch was initially represented by Mazie Pusich in the three cases. Pusich filed a motion for competency evaluation in March 2008 and related that:
One evening [Birch] left rambling, incoherent and profane messages on several public defender phones. He appeared to have called every number between our receptionist and our fax machine. There are over fifty numbers. The vast majority of these employees did not know Mr. Birch or his case, and had no idea why he was calling to yell and swear at them.
The state district court granted the motion for a competency evaluation. Exh. 26. Two psychiatric professionals evaluated Birch, and both found him competent to stand trial. Exh. 30. In June 2008, Pusich informed the court of a possible conflict of interestwith Birch. Birch also asked for new counsel, stating that he was in bitter conflict with Pusich. Exh. 38. The court granted Birch's request and appointed John Oakes as counsel in July 2008.
On July 21, 2008, Judge Jerome Polaha recused himself from Birch's case because Birch sent him a threatening letter:
As presiding judge over this matter, I am compelled to recuse myself from further involvement with it based upon an event that I consider an implied threat from the defendant. An ex-parte letter was...
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