Lockhart v. Terhune
| Decision Date | 27 April 2001 |
| Docket Number | No. 99-16010,99-16010 |
| Citation | 250 F.3d 1223 |
| Parties | (9th Cir. 2001) MICHAEL ANTHONY LOCKHART, Petitioner-Appellant, v. C.A. TERHUNE, <A HREF="#fr1-*" name="fn1-*">* Director, California Department of Corrections; GAIL LEWIS, Warden, Respondents-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Albert J. Kutchins, Berkeley, California, for the petitioner-appellant.
Amy Haddix and Clifford K. Thompson, Jr., Office of the California Attorney General, San Francisco, California, for the respondents-appellees.
Appeal from the United States District Court for the Northern District of California. D.C. No. CV-97-1447 MJJ. Martin J. Jenkins, District Judge, Presiding.
Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.
ORDER:
Our opinion in Lockhard v. Terhune, 243 F.3d 1130 (9th Cir. 2001), is amended, and the Clerk is ordered to file the attached amdended opinion.
With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judges Graber and Paez have voted to deny the petition for rehearing en banc, and Judge Goodwin recommended denial.
The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.
OPINIONA criminal defendant's Sixth Amendment right to counsel includes the right to be represented by an attorney with undivided loyalty. See Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981). This guarantee is so important that, unlike with other Sixth Amendment claims, when a defendant alleges an unconstitutional actual conflict of interest, "prejudice must be presumed," Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000) (), and harmless error analysis does not apply. United States v. Allen, 831 F.2d 1487, 1494-95 (9th Cir. 1987) (citing Cuyler, 446 U.S. at 349).
At his trial on charges of murder and attempted murder, prosecutors presented evidence that Petitioner Michael Lockhart had committed a second, earlier murder. Lockhart's appointed counsel was also representing another man who was implicated in that earlier homicide. On direct appeal and in his federal petition for a writ of habeas corpus, Lockhart alleged that this dual representation presented a conflict of interest that infringed his Sixth Amendment right to counsel. Both the state appellate court and the district court rejected Lockhart's claim. On appeal from the denial of his petition for a writ of habeas corpus under 28 U.S.C. 2254, we have jurisdiction under 28 U.S.C. 1291 and 2253. We hold that, because trial counsel had an actual conflict of interest that adversely affected his representation of Lockhart, Lockhart's Sixth Amendment right to counsel was violated. We reverse and remand.
Lockhart was convicted in the California Superior Court for murder and attempted murder in the May 31, 1990, shooting of two men, Roderick "Roger" Lane and Herbert" Legs" Jamerson. Lane was killed. Lockhart was also implicated in, although not charged with, the May 7, 1990, shooting death of a third man, Terry Cooper. 1 The prosecution offered evidence of Lockhart's alleged involvement in the Cooper killing in order to establish Lockhart's identity as the perpetrator in the Lane and Jamerson shooting.
A criminalist at the Oakland (California) Police Department had concluded, from analysis of shell casings found at the scenes, that the same guns were used in both the May 7 and May 31 incidents. He also compared these casings with others test-fired from two weapons subsequently seized by the police. The expert determined that the seized weapons were the ones used in both shootings. One of the guns, a Glock .9 millimeter pistol, had been seized in a search of a residence occupied by Larry Galbert.
On May 10, 1990, an anonymous female caller informed the Oakland Police Department that two of the shooters who "killed Terry [Cooper] on Seminary" were" Henry Scott and Larry Galbert." And on September 12, 1990, an informant named Norbert Bluitt told the department that "Larry Galbert, Henry Scott, and Tony Penniman were the men who shot and killed Terron Cooper." Attorney Richard Hove was appointed to represent Galbert when he was charged with possession of drugs and of the Glock pistol. Galbert was not charged with the Cooper killing. Several months later, Hove was appointed to represent Lockhart when he was charged with murder and attempted murder in the shooting of Lane and Jamerson.
According to the district court, after being appointed to represent both Lockhart and Galbert,
Hove learned that the Glock pistol found at Galbert's residence was one of the weapons used to kill both Lane and Cooper; that the police had received information from two informants implicating Galbert in the Cooper homicide; and that although Galbert's picture had been included in a photographic lineup a defense investigator showed eyewitnesses to both the Cooper and Lane homicides, no one identified Galbert from this photographic spread. Upon learning this information, Hove had both Lockhart and Galbert execute waivers of conflict of interest.
Lockhart II, 1999 WL 179688, at *8 n. 7. That is, the district court found that Hove knew that Galbert had been implicated in the May 7, 1990, killing of Cooper before obtaining the waivers. Lockhart's waiver read as follows:
I, MICHAEL LOCKKART [sic] acknowledge that I have been advised by my attorney RICHARD E. HOVE that there exists a conflicts [sic] of interest in Mr. Hove's representation of me and another individual whom he represents name [sic] LARRY GALBERT. I have been adviced [sic] by Mr. Hove that I have the right to have counsel of my own choice who does not represent both me or [sic ]Mr. Galbert. Having been advised of the above and realizing the nature and affect [sic] of the conflict it is my choice and request that Mr. Hove continue to represent me. I realize I may have the benefit of the advice of separate counsel in deciding to waive any conflicts of interest and has [sic] chosen not to seek such. I further acknowledge that this decision is made by me freely, vonteerly [sic] and with full knowledge of its potential consequence.
At a pretrial hearing, the court questioned both Lockhart and Hove about the conflict. 2 In response to the court's questions Hove asserted that Galbert's alleged possession of the gun used in the shootings was "the sole basis for the conflict." Supra note 2. After also questioning Lockhart, the trial court accepted his waiver, "finding that he has discussed this matter with his attorney and he feels that he has been made aware of the dangers and possible drawbacks." 1999 WL 179688, at *10. Hove did not, however, disclose to either Lockhart or the court that Galbert had been identified by two people as one of the shooters in the May 7 Cooper murder. There is no evidence that Hove ever told Lockhart that he had decided not to pursue the allegations against Galbert as part of Lockhart's defense.
After his sentencing, Lockhart appealed his conviction to the California Court of Appeal, asserting, inter alia, that trial counsel's conflict of interest deprived him of his federally guaranteed right to effective assistance of counsel. In an unpublished decision filed on July 14, 1994, the court affirmed Lockhart's conviction. People v. Lockhart, No. A056404, slip op. (Cal. Ct. App. July 14, 1994) (hereinafter Lockhart I). On July 29, 1994, Lockhart filed an original Petition for Writ of Habeas Corpus in the California Court of Appeal, asserting two additional claims, which we do not address here. The court summarily denied the petition on August 22, 1994. His subsequent habeas corpus petition to the California Supreme Court was denied on November 2, 1994. 3
On April 23, 1994, Lockhart filed a petition for a writ of habeas corpus under 28 U.S.C. 2254 in the Northern District of California. The district court heard argument on Lockhart's petition, then denied it on March 29, 1999. Lockhart timely appeals. 4
Lockhart's petition was filed after April 24, 1997, and is therefore subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). We review the district court's decision to deny a 28 U.S.C. 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). But under AEDPA, we may grant habeas relief to a person in state custody only if the claimed constitutional error "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1). As we recently summarized, in Williams v. Taylor, 529 U.S. 342, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000),
[t]he Supreme Court confirmed that the two clauses [--"contrary to" and "unreasonable application of" --] have independent meanings, but went on to hold that the two clauses apply both to questions of law and mixed questions of law and fact. See Williams, 120 S. Ct. at 1519-21. The "contrary to" prong applies to a state court "conclusion opposite to that reached by the [Supreme] Court on a question of law" as well as when "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 [that] precedent." Id. at 1519-20. The "unreasonable application of" prong applies at least to "[a] state-court decision that correctly identifies the governing legal rule...
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