Noe v. US

• Decision Date: 08 April 2010
• Docket Number: No. 08-2057.,08-2057.
• Citation: 601 F.3d 784
• Parties: Peter George NOE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

601 F.3d 784

Peter George NOE, Appellant, v. UNITED STATES of America, Appellee.

No. 08-2057.

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2009.

Filed: April 8, 2010.

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Jennifer Marie Macaulay, St. Paul, MN, argued, for Appellant.

Jeffrey S. Paulsen, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

In 2003, Peter Noe was convicted by a jury of conspiracy to distribute methamphetamine and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 846, and 851, and was sentenced to 480 months' imprisonment. His conviction and sentence were affirmed on direct appeal. United States v. Noe, 411 F.3d 878 (8th Cir.2005). In 2007, Noe petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, arguing, in part, that he was denied his Sixth Amendment right to effective assistance of counsel. The district court¹ denied Noe's petition and granted a certificate of appealability on the issue of whether trial counsel was ineffective because of dual representation or a conflict of interest. Noe appeals, arguing the district court erred in (1) determining that there was not joint representation, (2) finding that Noe waived his right to conflict-free representation, (3) denying a habeas hearing, and (4) refusing to expand the certificate of appealability. We affirm.

I. Background

Noe and Timothy Schultz led a methamphetamine conspiracy in Austin, Minnesota, from 2000 to 2002. Noe also distributed marijuana.

Following Noe's and Schultz's arrests, the district court appointed Rick Mattox to represent Noe and Nancy Vanderheider to represent Schultz. Before trial, Noe retained Albert Garcia to represent him and Schultz retained Bobby Sea, thus replacing Mattox and Vanderheider.

Noe's telephone conversations were recorded during his incarceration. In one recording, Noe stated that he and his family had raised around $60,000 for Noe's and Schultz's defense and that Schultz "is a rock ... he aint gonna say nothin' about me." The government moved for an inquiry into a potential conflict of interest because the conversations indicated that Noe's family was paying for Schultz's attorney. The government requested "an on-the-record inquiry of both defendants, but particularly defendant Schultz, to determine whether they understand the potential conflict of interest and are willing to waive any such conflict." Garcia opposed the motion, informing the court that the defendants had signed a waiver of conflict of interest.

The district court granted the government's motion and advised Noe and Schultz before trial of their right to representation by independent counsel. The district court stated that regardless of how an attorney is compensated "people's intentions frequently follow the money, but realistically the fact somebody has more money and can pay for somebody else's services, that happens. That's permissible. But as long as you understand the nature of the possible conflict, you can also waive it." The district court asked both defendants whether they had considered and discussed these issues before they signed the waiver. Both Noe and Schultz responded affirmatively.

Several of Noe's recorded conversations were admitted into evidence at trial. In one recording, Noe said "tell him I said blast me two cutie pies tomorrow for ... sure, and Friday I'm gunna blast him seven back." Austin City Police Department Detective David Schafer testified that a "cutie pie" is slang for a quarter pound and that "seven" refers to $7000. Schafer testified that, based on that price and quantity, the drug being discussed was methamphetamine.

Throughout his habeas proceedings in the district court, Noe was represented by Howard Kieffer, who appeared pro hac vice, with Mattox serving as local counsel. Noe argued, among other things, that he had been deprived of effective assistance of counsel because Garcia had impermissibly represented both defendants and had an actual conflict of interest.

Noe argued that Garcia had an actual conflict of interest because (1) Schultz's relatives paid Garcia's fees, (2) Garcia hired Sea, his former law associate, to represent Schultz, and (3) Garcia transferred payment to Sea for that representation. According to Noe, the conflict adversely affected his defense because Garcia failed to present a "split conspiracy defense"—one that would argue that Schultz alone was responsible for the methamphetamine business—and failed to "point the finger" at Schultz because Garcia was loyal to Schultz. Noe claimed that an investigator retained by Mattox had uncovered evidence that Schultz was solely responsible for the sale of methamphetamine and that Noe was involved only in the sale of marijuana. Noe also advanced claims of actual innocence and ineffective assistance of counsel based on a potential conflict of interest and a failure to investigate.

Noe submitted several documents in support of his § 2255 petition, including affidavits, the waiver of conflict of interest, and an unsworn letter recanting testimony. The affidavits explained the commingling of funds for his and Schultz's representation. Schultz's mother stated that she paid Garcia $5000 to represent Schultz. Noe's mother stated that she paid Garcia $5000 to defend Noe. Andrea Schultz, Schultz's sister and Noe's girlfriend, stated that Garcia asked her to deed her home to him to pay for Noe's representation. Although the waiver of conflict of interest was signed by all of the parties, it was drafted as a waiver of Schultz's right to conflict-free representation. It identified Schultz and Noe as co-defendants, Garcia as the attorney for the defendant, and Sea as co-counsel. The document stated that Garcia represented Noe and that Schultz agreed to Garcia acting as lead counsel in the case. The unsworn letter, allegedly written by trial witness Joe Robinson, stated that Robinson had lied at trial and that he had led the methamphetamine and marijuana conspiracies. Noe presented no support for his allegation that the investigator working for Mattox had produced substantial evidence in support of the split conspiracy defense.

In opposition, the government submitted Garcia's affidavit, which stated that Noe's family and friends had paid for Noe's legal fees. Further, the affidavit stated that Andrea Schultz had transferred property directly to Sea to pay for a large portion of the representation and "any additional monies for Sea's representation of Schultz were paid by the Schultz family through Garcia & Associates." The affidavit explained that Garcia's trial strategy was to attack and impeach the government's witnesses. Garcia averred that "the discussion of prior counsel's investigation was considered, but a different trial strategy was pursued given the anticipated trial testimony that ultimately came forward."

The district court denied Noe's petition without holding a hearing. The court found that there was no joint representation, making it unnecessary for the court to conduct a detailed inquiry into the representation. The district court held that even if there was a conflict of interest or joint representation, Noe had knowingly and intelligently waived his right to conflict-free representation. The court expressed doubt that Noe had demonstrated an actual conflict and ultimately rejected Noe's claim based on actual conflict because he had not shown that his defense was adversely affected. The court found that Garcia's trial strategy was reasonable, concluding that a "point the finger" defense would have required Garcia to convince the jury that the government's witnesses were telling the truth about Schultz's involvement, but lying about Noe's role in the conspiracy. The court further rejected the contention that Garcia should have pursued a split conspiracy defense, noting that Noe had failed to present any evidence that the investigator working for Mattox had uncovered any information to support the defense. The court also found that the recorded jailhouse telephone calls established that Noe ordered "QPs" or "cutie pies"—meaning quarter pound quantities, allegedly of methamphetamine—which would be inconsistent with a split conspiracy defense. The court rejected Noe's argument that he was referring to quantities of marijuana. The district court also determined that Noe's failure to investigate and actual innocence claims were without merit.

Noe requested that his petition be reconsidered in light of newly discovered evidence. In support of his motion, Noe submitted a letter from Schultz's mother stating that she was involved in a sexual relationship with Garcia while he was representing Noe and an order of the Minnesota Supreme Court publicly reprimanding Garcia for professional misconduct in an unrelated case. The district court denied the motion, finding that the evidence was neither newly discovered nor persuasive. The district court also denied Noe's request for an expanded certificate of appealability.

In 2008, this court learned that an individual named Howard Kieffer had been practicing law in the federal courts without a license and requested that Kieffer respond to these allegations. Upon his failure to do so, Kieffer was removed from Noe's habeas case and new counsel was appointed to represent Noe.

Prior to the submission of this appeal, the government informed us that Garcia had been indicted for drug-related offenses in the District of Minnesota, was charged with sexual assault in Hennepin County District Court, and was under investigation by the Minnesota Office of Lawyers Professional Responsibility for misappropriating client funds and failing to pay employer withholding taxes.

II.

An appeal from a district court's decision in a habeas claim of ineffective assistance of counsel presents a mixed question of law and fact. Laws v....