Mannhalt v. Reed

• Decision Date: 25 May 1988
• Docket Number: No. 87-4093,87-4093
• Citation: 847 F.2d 576
• Parties: Guenter MANNHALT, Petitioner-Appellant, v. Amos E. REED, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 576

847 F.2d 576

Guenter MANNHALT, Petitioner-Appellant, v. Amos E. REED, Respondent-Appellee.

No. 87-4093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1988.

Decided May 25, 1988.

Richard Hansen, Allen & Hansen, Seattle, Wash., for petitioner-appellant.

Charles J. Faddis, Asst. Atty. Gen., Dept. of Corrections, Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BEEZER, HALL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Guenter Mannhalt, a Washington state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus, filed under 28 U.S.C. Sec. 2254. Mannhalt alleges that he was denied effective assistance of counsel because of his attorney's conflict of interest and that a jury instruction deprived him of due process. We REVERSE.

I. FACTS AND PROCEEDINGS BELOW

In December, 1980, Guenter Mannhalt was charged in King County, Washington, with one count of conspiracy to commit robbery, one count of attempted robbery, and several counts of robbery and possession of stolen property. In all the robbery counts, the state alleged that Mannhalt was an accomplice by virtue of soliciting others to commit the crimes. The possession of stolen property counts were based on jewelry seized from a safe in Mannhalt's donut shop.

Mannhalt was represented at trial by James Kempton, a Seattle attorney. Kempton had known Mannhalt for several years and had previously represented him in a related trial in Whatcom County, Washington. Sometime in 1979 or 1980 Kempton purchased a gold watch from Mannhalt. Mannhalt assured Kempton that the watch had been purchased from a friend.

The charges against Mannhalt followed the arrest in October, 1980, of Tommy Morris in connection with several robberies. Morris agreed to testify against several individuals, including Mannhalt, as part of a plea bargain. Before this deal was negotiated, Kempton appeared with Morris at his arraignment. Kempton's associate, Deborah Youngblood, later represented Morris at a line-up. Both attorneys claim that they never discussed any aspect of the case with Morris. Kempton never formally agreed to represent Morris and never opened a file.

According to a police report dated November 9, 1980, Morris agreed to give information about twelve items. Item No. 11 read:

11. Attorney James Kempton purchased a stolen ring $1200 with $100 bills; taken from Lake Washington area. Also purchased a stolen bracelet.

Kempton became aware of this accusation while preparing for Mannhalt's trial. Kempton discussed the accusation with Mannhalt, but did not point out a potential conflict of interest.

At trial, Kempton conducted an extensive cross-examination of Morris, who testified on behalf of the prosecution. Kempton brought out that Morris had received a favorable plea bargain for agreeing to testify. Kempton then confronted Morris with his accusation that Kempton had purchased stolen property. Kempton became increasingly agitated during the cross-examination. Kempton offered his own unsworn testimony that Morris' accusation was false: "No, he's telling the police I'm buying stolen goods. I'm proving he's a liar." At one point Kempton asked his wife, a spectator, about her jewelry and she came forward and commented that she was wearing rings and that she hoped they were not glass. Kempton asked Morris many times whether he would lie and Morris replied: "Would you?" and "I've got up here and told the truth to the best of my knowledge." Kempton also asked Morris about the "diamonds from the market place" in evidence against Mannhalt. Morris admitted he had been in the donut shop where the jewelry had been seized and where Kempton had allegedly purchased stolen jewelry. Morris then volunteered that he had seen Kempton at the donut shop.

Kempton admitted that he lost his composure during the cross-examination. In his affidavit submitted in these habeas corpus proceedings, Kempton stated: "I was visibly shaken and I was furious. The court cannot appreciate the furor one feels when being confronted by an absolute thieving liar and saying that one is the purchaser of stolen items." Also, during the cross-examination the trial judge remarked:

"Things are coming a little unglued here, a little bit out of order."

Kempton did not take the stand to refute Morris' accusation. Neither did Kempton question Mannhalt about whether Kempton had ever purchased stolen jewelry.

Mannhalt was convicted on the conspiracy charge, seven robbery charges, and three possession of stolen property charges. (Counts I-VII, XIII-XV). He was acquitted on four robbery charges and one stolen property charge (Counts IX-XIII, XVI). On September 18, 1981, Mannhalt was sentenced to concurrent life terms on six first degree robbery counts and lesser concurrent terms on the remaining counts.

Mannhalt has exhausted his state remedies as required by 28 U.S.C. Sec. 2254. In denying Mannhalt's petition for discretionary review, the Washington Supreme Court found no actual conflict of interest presented. Mannhalt then filed a habeas corpus petition in federal court. The parties submitted depositions of the state court prosecutors, and affidavits of the defense attorneys and Mannhalt. Both parties moved for summary judgment. On February 10, 1987, the United States Magistrate issued a report and recommendation finding that Mannhalt's ineffective assistance claim had merit. The district court judge rejected the recommendation and granted the state's summary judgment motion. The Magistrate submitted a supplemental report and recommendation on the unconstitutional jury instruction issue, finding the claim meritless. The district court adopted the recommendation and entered judgment on July 20, 1987.

Mannhalt raises two claims on appeal. First, he argues that he was denied effective assistance of counsel because his attorney had previously represented a key government witness and because his attorney was accused of criminal conduct related to that for which Mannhalt was being tried. Second, Mannhalt urges that the trial court's jury instruction on accomplice liability violated due process by relieving the state of its burden of proving every element of a crime beyond a reasonable doubt.

II. STANDARD OF REVIEW

This court reviews de novo the decision to grant or deny a petition for habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). The question of whether an attorney renders ineffective assistance is a mixed question of law and fact, reviewed de novo. Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985).

III. ANALYSIS

To prevail on his claim for habeas relief, Mannhalt must show that his detention violates the Constitution, a federal statute, or a treaty. See Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam); 28 U.S.C. Sec. 2241(c)(3). Mannhalt alleges that he was deprived of his sixth amendment right to effective assistance of counsel because his attorney had two conflicts of interest. First, Kempton had previously represented a key government witness, and second, Kempton had been accused of criminal conduct related to that for which Mannhalt was being tried.

The sixth amendment guarantee of effective assistance of counsel comprises two correlative rights: the right to counsel of reasonable competence, McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970), and the right to counsel's undivided loyalty, Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220 (1981). The Supreme Court has articulated the different standards by which to judge the violation of these rights. To establish a sixth amendment violation based on a conflict of interest the defendant must show 1) that counsel actively represented conflicting interests, and 2) that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1719, 64

                L.Ed.2d 333 (1980).  Unlike a challenge to counsel's competency, prejudice is presumed if the defendant makes such a showing.   Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).  Although Cuyler involved a conflict of interest between clients, the presumption of prejudice extends to a conflict between clients, the presumption of prejudice extends to a conflict between a client and his lawyer's personal interest.   See United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.)  (client alleged conflict because of attorney's failure to notify federal judge of state bar suspension), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984);  United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980) (conflict based on attorney's private financial interests), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981)
                

A. Prior Representation of Government Witness

Mannhalt argues that a conflict existed between Kempton and himself because Kempton had represented Morris in a prior unrelated criminal case and briefly at Morris' arraignment and line-up in this case. An exchange at trial revealed this prior representation and, according to Mannhalt, suggested that Morris would have gone to trial even though guilty if he could have afforded to hire Kempton. Mannhalt argues, therefore, that he was impliedly guilty by association with his defense counsel.

Conflicts of interest can arise both in cases of simultaneous and successive representation. Generally, it is more difficult to show an actual conflict resulting from successive rather than simultaneous representation. Smith v. White, 815 F.2d 1401, 1405 (11th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). Although Kempton and Youngblood appeared at Morris' arraignment and line-up, this is not a case of simultaneous representation. Neither attorney...