Garcia v. Bunnell

• Decision Date: 02 September 1994
• Docket Number: No. 93-16312,93-16312
• Citation: 33 F.3d 1193
• Parties: Mario GARCIA, Petitioner-Appellant, v. William BUNNELL, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1193

33 F.3d 1193

Mario GARCIA, Petitioner-Appellant, v. William BUNNELL, Respondent-Appellee.

No. 93-16312.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 12, 1994.

Decided Sept. 2, 1994.

John Fresquez, Deputy State Public Defender, Sacramento, CA, for petitioner-appellant.

Robert D. Marshall, Deputy Atty. Gen., Sacramento, CA, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: ALDISERT ^*, WIGGINS, and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Mario Mark Garcia is a California state prisoner serving a sentence of 33 years to life imposed upon his 1986 conviction on counts of first-degree murder and assault with a deadly weapon. He appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition regarding his conviction. ¹

In an ex parte hearing on the morning of trial, defense counsel Craig Holmes announced that he had accepted a position, to commence at the end of the trial, with the prosecution--the San Joaquin County District Attorney's office. Garcia expressed reservations about proceeding, and the trial judge granted him a five-day continuance to seek advice from other attorneys and family members. After this hiatus, Garcia declared that he would accept Holmes' representation. The trial proceeded, and the jury found Garcia guilty as charged.

After unsuccessful state appeals, Garcia petitioned for a writ of habeas corpus from the United States District Court for the Eastern District of California. He claimed that in obtaining his conviction the state violated his Sixth Amendment right to conflict-free representation. The magistrate judge conducted an evidentiary hearing regarding the potential conflict raised in Garcia's petition. On the basis of Holmes' deposition testimony, ² the court found that Holmes had faced no actual conflict of interest in representing Garcia at trial and thus denied Garcia's petition.

Garcia timely appeals. We find that Garcia waived this Sixth Amendment right. Irrespective of Garcia's waiver, we also agree with the district court that Holmes did not face an actual conflict of interest. Therefore, Garcia's conviction did not violate his constitutional right and we affirm.

Discussion

This court reviews de novo the decision of whether to grant or deny a petition for habeas corpus. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994). A petitioner's claim of conflict of interest on the part of counsel represents a mixed question of fact and law equally meriting de novo review. Id.

Garcia's right to conflict-free representation derives from the Sixth Amendment as applied to the states by the Due Process Clause of the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932). The Sixth Amendment's right to counsel requires effective assistance by an attorney, which has two components: competence and conflict-free representation. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

A.

Even if counsel is subject to an actual conflict of interest, however, the trial court may generally allow the attorney to proceed if the defendant makes a voluntary, knowing, and intelligent waiver. See Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 L.Ed.2d 426 (1978); see also Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981) (finding of adequate waiver of Sixth Amendment right to counsel depends on particular facts and circumstances surrounding the case); United States v. Allen, 831 F.2d 1487, 1494 (9th Cir.1987).

We may affirm on any ground supported by the record, even if it differs from the reasoning of the district court, United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993), and our close examination of the trial court transcript indicates that Garcia knowingly, intelligently, and voluntarily decided to accept continued representation from Holmes despite the potential conflict presented by Holmes' future employment. ³ To the extent that Garcia's right to conflict-free counsel was at all impaired by Holmes' impending move, we hold that he waived it.

Holmes informed Garcia of his plans several hours before their court appearance. Garcia's comments to the court clearly indicated his knowledge of the potential for conflict and his recognition of his role in protecting his interests. The in camera discussion began as follows:

HOLMES: ... I told him this morning down at the law library what my plans are and I will let him explain how he feels about that.

COURT: Mr. Garcia, go ahead.

GARCIA: Yes, Your Honor. Mr. Holmes told me of his plans for the future, and in light of them I would like time to consult with my family and possibly some other attorneys, because I am looking at a very heavy penalty if I am found guilty, and I feel I need time to consult.

I have faith in Mr. Holmes, like I explained to him, but in view that he is going to be going over to the other side, it makes--my reservations are, you know, not that clear as to whether or not he will strike a deal or if he is palsy-walsy with Mr.--with the district attorney, Mr. Bowers, so I would like at least two days to consult with people.

COURT: All right. I think that is a reasonable request, Mr. Garcia.

After granting Garcia's request for a continuance to consult with other people as to whether he should continue with Holmes, the trial judge offered his own opinion. He explained that he had some personal knowledge of Holmes' work, and that he did not "think this would affect his performance as [Garcia's] attorney at all." Moreover, he observed that some degree of camaraderie between prosecutors and defense lawyers was normal and indeed healthy.

Garcia did not hesitate to maintain his own perspective:

GARCIA: I appreciate that, Your Honor. It is just that my views also extend to experiences that I have had. I have sat as a juror on the Nuestra Familia trial.

COURT: I know you did.

GARCIA: And going to Torrino's, I have noticed both sides. The attorneys and the prosecution were there and they talked very loud and a lot of things were said that I felt, you know, if I was the client, I don't think I would really want that person defending me. And that's why, the other reason why I would like to make the reservation to talk with somebody else. And then again, yesterday, I was to be assigned to Judge Saiers and Judge Saiers declined the case because he has known me personally for over almost a year.

COURT: He was the judge in that case?

GARCIA: Yes, sir ... he felt very uncomfortable handling my case. So, Your Honor, it seems like my case is falling apart as you could say. That is how I am looking at it.

COURT: I think you are certainly entitled to a couple of days, Mr. Garcia, and I don't have any problem with that and if it turns out that--you haven't hired Mr. Holmes, is that correct?

GARCIA: No.

COURT: He is court appointed. If it turns out--you are going to have to give me a good reason. The reason I am telling you this, if you asked me to excuse Mr. Holmes today because of the way you feel, I would probably be reluctant to do that, Mr. Garcia, because you haven't shown me anything that he has done that would indicate that he is an inadequate counsel. I think I can understand completely why you feel, "Hey, what's going on here?" That's fine. I'll give you a couple of days, but I am concerned.

The judge went on to explain that he had some concern for the convenience of witnesses and the court's docket. Reflecting that a two-day continuance meant that the case would resume on a Friday, he decided:

COURT: ... maybe you would even feel better with the weekend. Friday is just like Monday, in effect.

GARCIA: Yes. Some of the people I am going to contact are in the legal profession. I don't know if I am going to be able to speak with them over the weekend. I don't know what their schedule is.

The court concluded:

COURT: ... [T]hat will give you the weekend, time to talk and consult with the family and be prepared, unless you have a real good reason for me, to go ahead and we'll proceed on Monday with Mr. Holmes representing you.

GARCIA: I would like it to go on the record that I do have faith in Mr. Holmes as my attorney as of this time, and I would also like to state that I am not going to do anything to dig into this gentleman's past or profession. I am merely concerned with my case. All I want to do is consult someone with a little bit more knowledge than myself as to--they may tell me, you know, I don't want to answer you or, you know, I don't know, but I just want it to go on the record that I respect Mr. Holmes and he is a good attorney. I have an awful lot of faith in him.

COURT: I think that is certainly not misplaced at all, Mr. Garcia.

The hearing actually resumed the following Tuesday, such that Garcia had a total of five days to consider the situation and to consult with his family as well as other attorneys he knew. The judge began:

COURT: This is an In Camera hearing to follow up on our hearing from last week. I gave Mr. Garcia a couple of days to consult and think about whether he wished to continue to have Mr. Holmes represent him.

Mr. Garcia, what did you decide on that issue?

GARCIA: Well, Your Honor, I spoke with members of my family and other people and I found out that my best choice would be to stick with Mr. Holmes at this time. I feel your recommendation that you told me last week, that he is a good attorney, you know, I took that into consideration and I think the fact that he was offered this position, I think that he very well deserves that position and I don't think they would have offered it to him if he wasn't a darned good choice for it.

COURT: That is my feeling, Mr. Garcia. So you are willing to proceed to trial with Mr. Holmes as your attorney knowing what...