Cates v. Superintendent, Indiana Youth Center, 90-3009
| Decision Date | 11 December 1992 |
| Docket Number | No. 90-3009,90-3009 |
| Citation | 981 F.2d 949 |
| Parties | Mark Allen CATES, Petitioner-Appellee, v. SUPERINTENDENT, INDIANA YOUTH CENTER, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John E. Horn (argued), Tinley Park, IL, for petitioner-appellee.
David A. Arthur, Deputy Atty. Gen. (argued), Office of the Atty. Gen., Federal Litigation, Indianapolis, IN for respondent-appellant.
Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.
In this habeas corpus appeal, we determine whether counsel's joint representation of two defendants during the initial phases of their criminal proceedings violated Petitioner Mark Cates' Sixth Amendment right to effective assistance of counsel. We find no constitutional violation, and reverse the district court's grant of Cates' petition.
In October 1984, Mark Cates and Dennis Hanaway were charged with one count each of felony forgery and felony theft, two counts of burglary, attempted escape, and criminal mischief. In two hearings held October 14 and October 25, the Jasper Circuit Court in Jasper County, Indiana explained the charges to Cates and Hanaway and informed them of their constitutional rights. 1 During the October 14 hearing, Cates and Hanaway informed the court that they had retained Ronald V. Aungst to represent them. Neither the parties nor the court mentioned the possibility of a conflict of interest during the hearing. At the second hearing, new charges were levied against the defendants, and the court asked the defendants whether they had retained counsel to represent them on those charges. State Court Record ("S.C.R.") at 152. They had not retained counsel, and the trial court suggested that they retain Aungst to represent them on these charges as well. The defendants accepted this suggestion. Again, no mention was made of a possible conflict of interest.
The defendants' mothers visited Aungst in early October 1984 to hire him to represent their sons. Both paid retainer fees. Although he discussed their sons' cases with the women, Aungst did not mention the possibility of any potential conflicts of interest which might affect his representation of both men. Transcript of August 26, 1987 Hearing on Defendant's Petition for Post-Conviction Relief ("Post-Conviction Hearing") (testimony of Barbara O'Brien, Cates' Mother) S.C.R. at 118. Aungst met with Cates and Hanaway together and discussed the details of the crimes with which they were charged. He did not discuss the potential for conflicts of interest with Hanaway and Cates. At the hearing for post-conviction relief, Aungst testified that it was "not necessarily" his usual practice to inform co-defendants of the potential conflicts of interest inherent in joint representation. Id. at 126. This neglect was not in keeping with his duty as an attorney.
Sometime in December 1983 (the date is not clear), the prosecutor approached Aungst to offer Hanaway a plea bargain. The bargain was conditioned on Hanaway assisting the government in its case against Cates, and testifying against him if necessary. Id. at 127. The prosecutor did not offer a plea agreement for Cates. The state court granted Aungst's Motion to Withdraw on December 15, 1983. On December 19, 1983, Aungst notified Cates that he was withdrawing from his case because of a conflict of interest. Id. at 129. Aungst's letter stated that
as a result of a plea agreement that has been entered into by your co-defendant, Dennis Hanaway, it becomes impossible for me to continue to represent you in your pending criminal matters. This comes as a result of a conflict of interest arising from the plea agreement entered into by Dennis Hanaway.
Aungst letter of December 19, 1983, Defendant's Exhibit A to Post-Conviction Hearing, S.C.R. at 125. Cates retained another attorney, James Tsoutsouris, who appeared on his behalf on January 17, 1984. At the plea hearing on February 14, 1984 the government added a felony theft count to its information based upon the statement Hanaway provided pursuant to his plea agreement. See Cates' Petition for Writ of Habeas Corpus, District Court Record Document 3. Cates pleaded guilty to all the charges. After it fully explained the constitutional rights Cates waived if he pleaded guilty, the sentencing court asked Cates if he understood those rights, and if he was satisfied with the representation of counsel. Plea Hearing Transcript S.C.R. at 171-72. Cates responded positively to both questions. S.C.R. at 179. The plea agreement provided that Cates would plead guilty and be available to testify against other individuals about the acts charged in the information. In exchange, the State would abandon a habitual criminal charge. Id. at 176. This charge would have required the court to impose a thirty-year sentence enhancement. Appellant's Brief at 20. The court accepted Cates' plea, and he was sentenced on April 2, 1984. Transcript of Pronouncement of Sentence, S.C.R. at 190.
On April 11, 1985, Cates filed a pro se petition for post-conviction relief pursuant to the Indiana Rules of Procedure for Post-Conviction Remedies. Among other challenges, he complained that he did not receive effective assistance of counsel because of Aungst's misconduct. The trial court held two hearings on Cates' motions on May 18, 1987 and August 26, 1987. The delay before the hearings was caused by the court's inadvertent failure to set the matter for hearing. S.C.R. at 83. The Indiana trial court denied Cates' motion because (1) Aungst withdrew from Cates' case one month before Cates pleaded guilty, (2) Cates was represented by Tsoutsouris when he pleaded guilty, and (3) there was no evidence that Aungst used privileged information he received from Cates to negotiate Hanaway's plea agreement. Jasper County Court Order of January 19, 1988, S.C.R. at 105-10. At the hearing, the court acknowledged that attorneys face a potential conflict when they represent co-defendants, but questioned the impact of the conflict in Cates' case. Post-Conviction Hearing, S.C.R. at 235.
The Court of Appeals of Indiana denied Cates' appeal because it found that there was no "showing that the actions of the first attorney unduly prejudiced the petitioner's rights to a fair trial or decision to plead guilty." Cates v. State, No. 37A03-8806-P.C.-179 (Memorandum Decision) slip op. at 2 (3d Dist. Sept. 29, 1988), Appellant's Appendix at 27. The Supreme Court of Indiana declined to review the matter.
Having exhausted his state court remedies, Cates filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted the writ on the ground that Aungst's joint representation violated Cates' Sixth Amendment right to effective assistance of counsel. Cates v. Superintendent, 752 F.Supp. 854 (S.D.Ind.1990). The court found that the Indiana Court of Appeals improperly invoked the "standard ineffective assistance of counsel test." Cates, 752 F.Supp. at 865. Instead, the district court believed that Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) rejected the necessity of showing actual prejudice. Cates, 752 F.Supp. at 865. "Simply put," the court held, "there is no way that the petitioner's counsel could effectively represent the petitioner's interests at the same time he was negotiating a plea on his co-defendant's behalf." Id.
On August 17, 1990, the court granted the writ, and ordered that Cates be discharged from his convictions if he was not retried within 90 days. The court also ordered that the State could not use Hanaway's testimony in any new trial. The State moved for a stay of the order pending appeal, but the district court denied the motion. The State did not appeal the denial of the stay. Cates was not retried, and he was released on parole before the ninety day period expired.
Cates alleges that this matter is moot because the state did not appeal the district court's denial of the stay, he was not retried, and he was released on parole before the ninety day period expired. These facts do not moot the state's appeal of the district court's grant of the writ. York v. Tate, 858 F.2d 322, 324 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989). As the Sixth Circuit explained:
Just as the former prisoner has a continued interest in clearing his name, so too the state maintains an interest in assuring that a state prisoner is not improperly released prior to the completion of his allotted sentence.
Id. at 325. Further, the record indicates that Cates was paroled, not discharged, which means that he is still in custody for habeas corpus purposes, Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1962), and, further, we maintain jurisdiction because of the state's interest in possibly restoring a defendant to custody. See Evitts v. Lucey, 469 U.S. 387, 391 n. 4, 105 S.Ct. 830, 833 n. 4, 83 L.Ed.2d 821 (1985) (); Jones v. Helms, 452 U.S. 412, 416 n. 6, 417, 101 S.Ct. 2434, 2438-39 n. 6, 2439, 69 L.Ed.2d 118 (1981) (same).
The Sixth Amendment guarantees that criminal defendants receive effective assistance of counsel at all stages of the proceedings against them. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. Duckworth, 793 F.2d 898, 900-902 (7th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93...
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