Mosier v. Murphy, 84-2106

• Decision Date: 05 May 1986
• Docket Number: No. 84-2106,84-2106
• Citation: 790 F.2d 62
• Parties: John A. MOSIER, Petitioner-Appellant, v. A.I. MURPHY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 62

790 F.2d 62

John A. MOSIER, Petitioner-Appellant, v. A.I. MURPHY, Warden, Respondent-Appellee.

No. 84-2106.

United States Court of Appeals Tenth Circuit.

May 5, 1986.

Steve Soltis, Asst. Federal Public Defender, Oklahoma City, Okl., for petitioner-appellant.

Michael William Elliott, Asst. Atty. Gen. (Michael C. Turpen, Atty. Gen., with him on brief), Oklahoma City, Okl., for respondent-appellee.

Before SEYMOUR, SETH and BALDOCK, Circuit Judges.

SETH, Circuit Judge.

This is an appeal from the district court's denial of appellant John Mosier's petition for post-conviction relief filed pursuant to 28 U.S.C. Sec. 2254. Petitioner's habeas corpus claim states essentially that his guilty plea to first-degree murder charges was the product of ineffective assistance of counsel due to his attorney's conflict of interest at the time of the plea. Mr. Mosier pled guilty to first-degree murder in the District Court of Mayes County, Oklahoma and after exhausting his state post-conviction remedies he filed this petition in the United States District Court for the Northern District of Oklahoma. The United States District Court adopted the Magistrate's findings and recommendation that Mr. Mosier's petition be denied. In his appeal petitioner advances his claimed denial of effective assistance of counsel at the time of the plea due to his attorney's conflict of interest.

Mr. Mosier was charged in Mayes County, Oklahoma with first-degree murder, and his wife Denise was also charged with conspiracy to commit murder. Wanda Cable, his mother-in-law, was similarly charged in Orange County, Texas. The Mosiers had retained attorney George Farrar as their defense counsel and Wanda Cable had also retained Farrar to represent her in the Texas proceeding. With charges still pending against Mrs. Mosier and Wanda Cable the prosecution proceeded to trial against John Mosier separately seeking the death penalty for his part in the murder. After a one week trial during which both sides called a number of witnesses and with the jury in recess prior to final instructions, the trial judge initiated a plea arrangement by expressing his opinion that the District Attorney would never get the death penalty from the evidence presented. Negotiations started and the District Attorney took the position that he would not accept anything less from the defendant than life. A plea bargain was eventually reached which required petitioner to plead guilty to first-degree murder and receive a life sentence, and in return the state would refrain from seeking the death penalty and also dismiss all filed charges and agree not to proceed further against Denise Mosier and Wanda Cable.

By way of presenting the plea bargain to Mr. Mosier, attorney Farrar told him that, "I don't think this jury will ever give you the death penalty so you are looking at life in prison whether you plead guilty or whether the jury convicts you." The attorney also told the petitioner that by entering a plea of guilty he would be waiving the opportunity to appeal any errors which might have taken place in the trial and in the motion hearings before the trial. Relative to this warning, defendant was told by his attorney that he thought "there was at least a fair chance of reversing a jury verdict on the case" and that the attorney was prepared to pursue an appeal. Defendant discussed the plea proposal with his wife and mother-in-law. Of this he stated that "[he] laid it out for them and it was still [his] decision, it was back up to [him] and of course they wasn't [sic] too happy about it, but it was just kind of a case that you have to make up your mind what you are going to do." He entered his plea the same afternoon and the court accepted it after asking several questions of the petitioner. In response, Mr. Mosier affirmed that he had been advised of his right to subpoena, confront and cross-examine witnesses. The defendant confessed that he did effect the death of the victim and that he understood that the only punishment could be life in prison. He confirmed in open court that no one who represented the state had made any threats, promises or coerced him to enter the plea. Mr. Mosier acknowledged satisfaction with the quality of representation by George Farrar. Mr. Mosier's guilty plea was accepted.

Although Mr. Mosier did not appeal his conviction to the Oklahoma Court of Criminal Appeals, he did file an application for post-conviction relief in the District Court of Mayes County in which he claimed that the guilty plea was obtained through coercion and duress the result of inadequate assistance of counsel due to the alleged conflict of interest and that the trial court failed to comply with due process in accepting the plea. The court conducted an evidentiary hearing at which petitioner was represented by a court appointed attorney. Petitioner's application was denied by the district court which stated "that the defendant's plea was voluntarily made by the defendant who knowingly, intelligently and in the absence of coercion made his own decision to abort his trial by jury and plead guilty." Petitioner's appeal to the Court of Criminal Appeals was unsuccessful as that court affirmed.

Petitioner initiated his federal habeas corpus action which is the subject of this appeal. The issue presented by Mr. Mosier in this appeal is whether his attorney's additional representation of Mr. Mosier's wife and mother-in-law, who benefited from the guilty plea, created a conflict of interest for the attorney such as to deprive defendant Mosier of effective assistance of counsel.

In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, the Supreme Court required state trial courts to investigate timely objections to multiple representation but did not require inquiries into every instance of multiple representation. Both in Holloway and Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333, the Court recognized that defense attorneys are in the best position to determine when a conflict is likely to or has arisen and they have an ethical obligation to advise the trial court in such instances. Therefore, in most cases, "trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.... Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." 446 U.S. at 347, 100 S.Ct. at 1717.

In Cuyler v. Sullivan the Court pointed to a number of elements of that case which indicated that the trial court should not have suspected any real conflict. First, the provision of separate trials for Sullivan and his co-defendants significantly reduced the potential for conflict. The opening argument of Sullivan's attorney did not implicate any of the other defendants and was consistent with the view that none of the defendants were connected with the murders. The Court also seemed impressed with the apparent willingness of Sullivan's attorney to call in Sullivan's defense witnesses whose testimony might be needed at the trials of the co-defendants whose conflicting interest Sullivan's attorney was allegedly representing. Lastly, the Court noted that there was no objection by anyone at Sullivan's trial to the multiple representation. 446 U.S. at 347, 100 S.Ct. at 1717. Under such circumstances the Supreme Court held that the Sixth Amendment did not impose upon the trial court an affirmative duty to inquire into the propriety of a multiple representation. Id. at 348, 100 S.Ct. at 1718.

A review of the facts of the case presented in this appeal reveals a similar set of circumstances. John Mosier was tried separately from his putative co-defendants, Denise Mosier and Wanda Cable. There is no indication that attorney Farrar presented a defense...