Plumlee v. Masto

• Decision Date: 17 January 2008
• Docket Number: No. 04-15101.,04-15101.
• Citation: 512 F.3d 1204
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Lary James PLUMLEE, Petitioner-Appellant, v. Catherine Cortez MASTO, Attorney General State of Nevada; E.K. McDaniel, Warden, Respondents-Appellees.

512 F.3d 1204

Lary James PLUMLEE, Petitioner-Appellant, v. Catherine Cortez MASTO, Attorney General State of Nevada; E.K. McDaniel, Warden, Respondents-Appellees.

No. 04-15101.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2007.

Filed January 17, 2008.

Jason F. Carr, AFPD, Las Vegas, NV, for the petitioner-appellant.

Joseph W. Long, Deputy Attorney General, Ely, NV, for the respondent-appellee.

David K. Neidert, Deputy Attorney General, Reno, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-00-00244-DWH/VPC.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, HARRY PREGERSON, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON.

SILVERMAN, Circuit Judge:

The Supreme Court has held that a criminal defendant has a constitutional right to counsel who is free of conflicts of interest. It also has held that a defendant does not have a constitutional right to an appointed lawyer with whom he has a "meaningful, relationship" so long as the lawyer acts as the client's advocate. In this case, appellant Lary James Plumlee contends that he was unconstitutionally forced to represent himself when the Nevada state trial court refused to replace the Public Defender's Office, which he came to distrust and with which he would not cooperate. He claims that he had developed an "irreconcilable conflict" with counsel. Before the trial began, and again in state post-conviction proceedings, the trial judge made inquiry and found no actual conflict underlying Plumlee's refusal to work with his appointed lawyer because counsel committed no misconduct, and Plumlee's reasons for distrusting the `lawyer were not supported.

We hold today that the Nevada Supreme Court did not misapply clearly established federal law as determined by the Supreme Court when it ruled that Plumlee's right to the effective assistance of counsel was not violated by the trial judge's refusal to appoint a different lawyer.

I. Background

On June 4, 1991, Plumlee was charged in Washoe County, Nevada with the armed robbery and murder of Wilbur Richard Beard. The Washoe County Public Defender's Office was appointed to represent him, and Plumlee was assigned Deputy Public Defender David Allison. Allison's boss was Chief Deputy Public Defender Shelly O'Neill.

Shortly after his arrest, Plumlee heard through the grapevine that O'Neill was good friends with his roommate, John Dewey, who also was a suspect in the Beard robbery and murder. Plumlee came to believe that O'Neill had leaked to Dewey privileged information—namely, that Plumlee was going to point the finger at Dewey.

Plumlee also came to distrust Allison. Prior to being assigned to Plumlee's case, Allison had applied for a position at the Washoe County District Attorney's Office, but had not, Plumlee claimed, mentioned that to Plumlee. Allison received a job offer from the D.A.'s Office during his representation of Plumlee and took the job. Plumlee believed that Allison had deceived him about his applicant status at the D.A.'s Office when Plumlee had asked him about it.

In addition, Plumlee came to believe that, before Allison started his new job, he was leaking privileged information to the D.A.'s Office. Plumlee claimed that the police had released his car from impound to the lienholder soon after Plumlee had told Allison that exculpatory evidence might be found in the vehicle.

Steven Gregory was assigned to `Plumlee's case after Allison left for the D.A.'s Office. Two events caused Plumlee to believe that Gregory was acting against his interest. First, Gregory had presented Plumlee with a plea offer after Plumlee had told him that he wanted plea discussions to move forward only with his prior approval. Second, after Plumlee learned of `a bail order and attempted to discuss it with Gregory, the attorney told Plumlee that he "needed psychiatric treatment, because no bail order existed." In fact, the order did exist but had been misplaced.

Shortly thereafter, Gregory moved to have the Public Defender's Office "relieved" from the case because a lack of trust was inhibiting the formation of a functional attorney-client relationship. In an affidavit in support of the motion, Gregory attested to Plumlee's general distrust of the Public Defender's Office and, specifically, Plumlee's suspicion that Allison had been leaking information to the D.A.'s Office about his case. The trial judge, Judge Mills Lane, III, held a proceeding in open court to consider the motion, at which Plumlee was present. At, the hearing, Judge Lane heard from both Gregory and the prosecution about the alleged leaks from Allison to the D.A.'s Office. He also inquired into the problems with the attorney-client relationship. Gregory told the Judge that, "unfortunately, because of Mr. Plumlee's mistrust with the Public Defender's Office and anyone attached to the Public Defender's Office, he is unable to properly assist me, therefore, making my. efforts less than effective." Shelly O'Neill's friendship with John Dewey was not mentioned. At the conclusion of the proceedings, Judge Lane found that no improper conversations occurred, and that no conflict was created by Allison's transfer to the D.A's Office. Also, citing the rule enunciated by the Supreme Court in Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), that the Sixth Amendment does not entitle a defendant to a "meaningful relationship" with his attorney, Judge Lane denied the motion to remove the Public Defender's Office from the case.

About two weeks later, Plumlee through Gregory moved to disqualify the Washoe. County D.A.'s Office from prosecuting his case because of an alleged imputed conflict arising from Allison's new job with that office. Judge Lane found that Allison had been adequately screened from the matter within the D.A.'s Office and denied the motion.

At the hearing on the motion to disqualify the D.A.'s Office, Gregory renewed his motion to relieve the Public Defender's Office of its representation of Plumlee. The motion was again denied. Judge Lane then informed Plumlee that he had the right to be represented by competent counsel and that Gregory was competent counsel. Judge Lane told Plumlee that he also had the constitutional right to represent himself, but those were his only two options. Judge Lane made it clear that he would not remove Gregory and appoint private counsel in his place.

The next day, in revisiting the issue of Plumlee's possible self-representation, Judge Lane told him, "the rules are going to apply to you same as they apply to everybody else, but if you want to exercise your constitutional right to be your lawyer and defend yourself in this offense, that motion will be granted." Plumlee stated that he wanted to act as his own attorney and the Public Defender's Office was appointed as stand-by counsel. Gregory tried once more to persuade the court to relieve his office of the case, stating, "[i]t's obvious that the reason Mr. Plumlee wants to represent himself is, he doesn't trust the Public Defender's Office. To order us to be stand-by counsel, in effect, gives him no stand-by counsel." Judge Lane was, not persuaded and refused to appoint different stand-by counsel for Plumlee.

At a subsequent hearing, Plumlee was again advised by Judge Lane of his right to be represented by the Public Defender's Office, and Judge Lane reiterated his refusal to appoint outside counsel. After expressing his view that he had no choice, Plumlee affirmed his decision to proceed pro se. Plumlee then petitioned the Nevada Supreme Court for a writ of mandamus to compel the appointment of counsel outside the Public Defender's Office. The petition was denied.

Plumlee proceeded to trial pro se and was convicted of all charges. He was sentenced to two consecutive life terms without parole for first-degree murder and for the use of a deadly weapon, as well as to two concurrent nine year sentences for robbery and for the use' of a deadly weapon.

On direct appeal, Plumlee argued, inter alia, that the district court abused its discretion when it refused to provide him with counsel outside the Public Defender's Office, causing him to involuntarily serve as his own attorney in violation of his Sixth Amendment right to counsel. The Nevada Supreme Court dismissed the appeal.

Absent a showing of adequate cause, a defendant is not entitled to reject court-appointed counsel and substitute other counsel at public expense. Thomas v. State, 94 Nev. 605, 607, 584 P.2d 674, 676 (1978). It is within the sound discretion of the trial court to decide whether friction between counsel and client justifies appointment of new counsel. Id. A defendant's refusal to cooperate with appointed counsel is no basis for a claim of inadequate representation. Id. at 608, 584 P.2d at 676. "Requiring a defendant to choose between waiving counsel and continuing with present counsel is not constitutionally offensive unless defendant's objections to existing counsel are such that he has a right to new counsel." State v. Staten, 60 Wash. App. 163, 802 P.2d 1384, 1387 (1991). Appellant never showed adequate cause justifying appointment of new counsel, and the court below did not abuse its discretion in refusing to do so.

After his conviction was affirmed on direct appeal, Plumlee filed a petition for a writ of habeas corpus in the state trial court. Judge Lane held an evidentiary hearing in connection with Plumlee's petition. At the conclusion of the hearing, Judge Lane denied the petition and made several critical factual findings:

• Chief Deputy Public Defender O'Neill had neither received, nor leaked, any confidential information regarding...