REPORT AND RECOMMENDATION This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
Petitioner, Lameeka McKinney, a state prisoner, pleaded guilty to manslaughter under Louisiana law. In this proceeding, she claims that she was denied her constitutional right to be represented by the privately retained counsel of her choosing. Because of the nature of her claim, a detailed summary of the events leading up to her guilty plea is necessary.
The record reflects that petitioner and Robert Scott were indicted for the second degree murder of their child. In the ensuing criminal proceedings, petitioner was represented by Martin Regan, and co-defendant Scott was represented by Gary Wainwright. During the course of the proceedings, the Louisiana Supreme Court suspended Wainwright from the practice of law due to an unrelated infraction. Wainwright then took a job as a paralegal in Regan's office, and Frank DeSalvo took over the representation of co-defendant Scott.
On January 28, 2013, the state filed a motion for a conflict of interest inquiry based on the fact that Wainwright, as part of Regan's team, was performing work on petitioner's case despite the fact that he had previously represented co-defendant Scott concerning the same crime. The state district court held an evidentiary hearing on that issue on January 29, 2013. At the conclusion of that hearing, the judge found that Regan was in fact laboring under a conflict of interest and ordered that he would not be allowed to represent petitioner in the criminal case. Immediate supervisory review was sought, and the Louisiana Fifth Circuit Court of Appeal denied relief, holding:
The trial court correctly determined that counsel for relator, Martin Regan, is laboring under an actual conflict of interest created when co-defendant's former counsel, who was hired by Mr. Regan's firm as a paralegal, actually performed work on relator's case. An attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant he is representing. State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, 129. If an actual conflict exists, there is no need for a defendant to prove that he was also prejudiced thereby. Id. at 130. Here, the co-defendant's former counsel testified that he performed work on relator's case prior to anyone speaking to relator about any potential conflict.
Accordingly, this writ application is denied. Relator's request for a stay of these proceedings is also denied.1
Five months later, on May 20, 2013, Regan filed a motion to re-enroll as petitioner's counsel, which the trial court ordered stricken after a hearing, again citing Regan's conflict of interest.2 Supervisory relief was again sought, and the Louisiana Fifth Circuit Court of Appeal again denied relief, holding:
On the showing made, we find no error in the trial court's "striking" the motion to enroll as counsel filed by Martin Regan. The issue of Mr. Regan's representation of Lameeka McKinney has previously been ruled upon by the trial court. On January 29, 2013, the trial court ordered that Mr. Regan be removed as counsel for relator due to an actual conflict of interest. Relator thereafter sought review of the trial court's ruling in this Court. On January 30, 2013, this Court agreed with the trial court's determination that Mr. Regan had an actual conflict of interest and denied relator's writ application. State v. McKinney, 13-68 (La. App. 5 Cir. 1/30/13) (unpublished writ disposition). On March 4, 2013, this Court denied relator's application for rehearing.
We find that reconsideration of this issue is not warranted. No subsequent record has been presented to establish that this Court's determination was patently erroneous or produced unjust results. Although Mr. Regan did subsequently present the trial court with relator's affidavit/conflict of interest waiver, we find that such waiver does not mandate enrollment of counsel. Wheat v. United States, 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
Accordingly, we find no error in the trial court's ruling on relator's motion to enroll. This writ application is denied.3
The Louisiana Supreme Court then likewise denied relief without assigning additional reasons.4
On March 5, 2014, petitioner, through counsel, filed a federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 on the ground that she was being denied her right to be represented by the privately retained counsel of her choosing, i.e. Martin Regan.5 However, while that federal application was pending, petitioner, now represented by attorney Cezar J. Vasquez, pleaded guilty to an amended charge of manslaughter pursuant to a negotiated plea agreement, and she was sentenced to a term of fifteen years imprisonment on July 10, 2014.6 On August 11, 2014, United States District Judge Martin L.C. Feldman then dismissed petitioner's § 2241 application"without prejudice to petitioner's right to pursue habeas corpus relief through a petition timely filed under 28 U.S.C. § 2254 after exhausting her available state court remedies."7
Two days later, petitioner, through counsel, filed the instant federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254, again claiming that her constitutional rights were violated because she was denied the opportunity to be represented by the privately retained counsel of her choosing.8 The state filed a response arguing that this federal proceeding should be dismissed in light of the fact that petitioner had a direct appeal still pending in the state courts.9 However, the state's argument thereafter became moot because, on March 25, 2015, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's conviction and sentence, holding:
Appellate counsel's brief contains no assignments of error and sets forth that it is filed in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97); 704 So.2d 241 (per curiam), which set forth the procedure appellate counsel should follow when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous.
In his brief, appellate counsel reviewed the procedural history of the case and stated that, after a review of the record, he could not find any non-frivolous issues to present on appeal. Appellate counsel specifically noted that Defendant entered an unqualified guilty plea, which waived all non-jurisdictional defects. Appellate counsel observed that Defendant indicated to the trial court that she had not been forced, coerced, or threatened to enter the guilty plea and that she understood her rights, the charge, and the sentence she would receive. Counsel submits that Defendant's answers throughout the guilty plea colloquy and sentencing appeared to be sensible, direct, articulate, and well-mannered. Additionally, counsel contends the plea bargain was very advantageous to Defendant.
Appellate counsel acknowledged the heated dispute regarding Defendant's desire for representation by Martin Regan and his subsequent removal due to a conflict, but found that all issues concerning that aspect of the case appeared to have been fully litigated in both this Court and the Louisiana Supreme Court. Henoted that Defendant might retain federal habeas rights regarding that issue beyond the scope of this direct appeal.
Having determined there are no non-frivolous issues to raise on appeal, appellate counsel requests to withdraw from further representation of Defendant. Appellate counsel advised this Court that he notified Defendant of her right to file a pro se brief in this appeal, and we note that this Court sent Defendant a letter by certified mail informing her that an Anders brief had been filed and that she had a right to file a pro se supplemental brief. Defendant chose not to file a pro se brief.
This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our independent review reveals no non-frivolous issues or trial court rulings that could have been raised on appeal.
We have specifically considered the issue of Defendant's right to counsel of choice and whether it should have been raised on direct appeal. After Mr. Regan was removed from the case, Defendant filed a supervisory writ with this Court. Although the writ application was denied, we note that one member of the panel dissented. Additionally, in a subsequent writ application to the supreme court regarding the denial of Mr. Regan's motion to re-enroll as counsel, Justice Johnson indicated that she would have granted the writ and explained,
The Sixth Amendment right to counsel includes a criminal defendant's right to secure counsel of his or her choice. Accordingly, a court must give considerable deference to a defendant's choice of counsel, and disqualification "should be a measure of last resort." In this instance, the defendant consulted with an independent attorney, executed an affidavit with a waiver of conflict of interest and chose to retain Mr. Martin Regan as her counsel. Therefore, I believe the trial court erred in denying defense counsel's Motion to Enroll.
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