Salts v. Epps

• Decision Date: 29 March 2012
• Docket Number: No. 10–60201.,10–60201.
• Citation: 676 F.3d 468
• Parties: Marie SALTS, Petitioner–Appellee–Cross–Appellant, v. Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, et al., Respondents–Appellants–Cross–Appellees.Michael Salts, Petitioner–Appellee–Cross–Appellant, v. Christopher Epps, Commissioner, Mississippi Department of Corrections, et al., Respondents–Appellants–Cross–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

676 F.3d 468

Marie SALTS, Petitioner–Appellee–Cross–Appellant,

v.Christopher B. EPPS, Commissioner, Mississippi Department of Corrections, et al., Respondents–Appellants–Cross–Appellees.Michael Salts, Petitioner–Appellee–Cross–Appellant,

v.Christopher Epps, Commissioner, Mississippi Department of Corrections, et al., Respondents–Appellants–Cross–Appellees.

No. 10–60201.

United States Court of Appeals, Fifth Circuit.

March 29, 2012.

Jim D. Waide, III (argued), Waide & Associates, P.A., Tupelo, MS, for Petitioner–Appellee–Cross–Appellant.

Jerrolyn M. Owens (argued), Lesley G. Miller, Sp. Asst. Atty. Gen., Jackson, MS, for Respondents–Appellants–Cross–Appellees.

Appeals from the United States District Court for the Northern District of Mississippi.

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Respondents Christopher Epps, Commissioner of the Mississippi Department of Corrections, and Jim Hood, Mississippi Attorney General, (collectively, “the State”) appeal from the district court's grant of Michael and Marie Saltses' petition for a writ of habeas corpus. The Saltses petitioned for habeas relief because, inter alia, the Mississippi Court of Appeals denied their Sixth Amendment claim for ineffective assistance of counsel. Because the Mississippi court's decision was contrary to clearly established law, we AFFIRM the district court's grant of habeas relief under 28 U.S.C. § 2254.

I. Background and procedural history

A. The Saltses' conviction for embezzlement

Petitioners Michael and Marie Salts, proprietors of a family-run funeral-home in Boonville, Mississippi, were charged with and convicted of embezzlement in connection with their business. Part of the Saltses' business involved providing “funeral insurance,” or burial insurance, to many of their customers. The Saltses provided this coverage for years through Gulf National Insurance (“Gulf”).¹

Many funeral-home clients would send their burial insurance premiums directly to the Saltses, who would in turn forward the payments to Gulf. In 1994, however, Gulf terminated relations with the Saltses and stopped providing insurance to their customers. Some of the Saltses' customers were apparently unaware of this fact, and they continued sending payments directly to the Saltses. The State alleged that, in a number of instances, the Saltses kept these payments rather than returning them to the clients. It was on this theory that the Saltses were charged with six counts each of embezzlement of customer funds.

The Saltses were indicted on May 12, 2003, but more than two years passed before their eventual trial, which began on October 3, 2005. This delay is attributable to a number of causes, including two judges recusing themselves from the case, renovations at the courthouse, and a series of continuances requested by the Saltses' counsel. In the time between their indictment and trial, the Saltses had three lawyers. The first, Steve Farese, represented them for only a few months before withdrawing due to “two separate irreconcilable conflicts.” After Farese withdrew, the court set a trial date for March 3, 2004. From the time Farese withdrew until several days before trial, the Salts were represented by a second attorney, Michael Thorne.

During his time as the Saltses' attorney, Thorne requested and received a number of continuances. The first request cited the need to obtain discovery materials from Farese, the complexity of the case, and the potential need to retain an expert accountant. The second and third requests, filed in the following months, explained that “this attorney has not been able to properly prepare ... due to other litigation involving these defendants.” In the third request, the Saltses specifically waived their right to a speedy trial. In granting this third request, the trial court set the case for trial on June 27, 2005, though it noted that “[i]n the event the renovation of the Courthouse has not been completed by the date set for trial, the case will be continued to a later date.”

On June 24, 2005, Thorne requested another continuance, in light of a need to “travel[ ] to Florida with his Wife to seek treatment for a serious medical condition.” The motion noted that Thorne had “also been advised that the renovations to the Prentiss County Courthouse [we]re still under construction and the use of the Courthouse [wa]s not available.” The trial judge granted the motion and set the case for trial on September 6, 2005.

Then, on August 5, 2005, the Saltses filed a motion to transfer venue, citing local media publicity surrounding the charges against them in Prentiss County. The trial court granted the motion on September 13, 2005, transferring venue to Lee County, Mississippi. The trial court set the case for trial in Lee County on October 3, 2005.

On the eve of trial, September 28, 2005, Thorne made one final request for continuance “due to illness” in his family. He indicated that he was not prepared for trial in five days and needed “additional time in which to prepare for the trial of this matter to properly defend this case.” The very next day, the record shows that the Saltses terminated Thorne as their attorney, citing “differ[e]nce of opinion on the way this case ought to be represented.” At a pretrial hearing, the Saltses clarified that this “difference of opinion” related to Thorne's lack of preparation for trial. They informed the Court that Thorne had not subpoenaed witnesses or otherwise prepared their case.

Despite the Saltses' decision to fire Thorne and his admitted lack of preparation, the trial judge indicated at the pretrial conference that he would not grant any further continuances and would proceed with the scheduled trial date of October 3, 2005. When asked whether he would allow the Saltses time at least to retain new counsel, the trial judge demurred:

Now, I don't know what the problem is. And again, I don't care what the problem is. That's not my prerogative to look into the relationship between attorneys and their clients. It has taken me in the neighborhood of six to eight months to arrive at a trial setting for this, not entirely because of things the defendants did, but a portion of that had to do with the fact that the courthouse in Prentiss County was being remodeled or whatever, and we didn't have a courtroom to try this case, but finally it is set for trial. I have a venire panel coming in on Monday and, any thoughts about a continuance in this case, you can abandon that. Any attorney who comes in to it at this late date must assume that it is for trial, because I'm not going to continue it.

The Salts were in the end able to retain new counsel, Jim Waide, who continues to represent them in this proceeding.

On the morning the trial was scheduled to begin—before the jury was selected and sworn and before opening arguments—Waide filed a motion to dismiss, or in the alternative, a motion to continue.² Waide argued that “[t]here is an obvious conflict of interest between the Defendants,” in light of the fact that they were both charged with embezzlement in connection with their family business, but both denied any embezzlement or knowledge of embezzlement. Further, “during various time periods one Defendant operated the business and during other times the other Defendant operated the business.”

Waide elaborated on this conflict of interest in court the morning of the trial:

Your honor, the indictment in this case charges embezzlement. It charges both defendants with embezzlement. There's extensive discovery in the case, boxes of materials, but I can't see anything that identifies which defendant is charged with embezzlement at which times. And I also know that the proof is going to show that at various years, it goes on for 17 years, but at various times one of the defendants wouldn't even been working in the business during some of those times. There's an obvious conflict of interest. It's obvious that one attorney should represent one defendant and should argue that they haven't shown that my defendant was even working there at that particular time. So there's an obvious conflict of interest, and the prosecution knowing this case has gone on for 17 years and investigating it would have certainly known that from time to time which one of them was active in the business. And one lawyer can't very well point the finger at one defendant and not at the other one and say, well my—for example, I might say the last three or four years, Mr. Salts has been working outside the business, hasn't even been involved in the business. But it's hard to make that argument representing both.

The trial court declined to inquire further into the circumstances of this alleged conflict of interest and denied the motion to continue based on the need to obtain separate counsel, apparently believing that the Saltses had previously waived any conflict of interest. After disposing of the conflicts issue, the trial court proceeded to select the jury and try the case.

At trial, the Saltses were each convicted of four counts of embezzlement and each were sentenced to ten years imprisonment in Mississippi state prison.

B. The Saltses' habeas petition

After the Saltses were convicted at trial, they filed a direct appeal to the Mississippi Court of Appeals, which resulted in a published opinion. ³ On direct appeal, the Saltses raised both claims that they now advance in this habeas proceeding: (1) ineffective assistance of counsel stemming from joint representation, and (2) ineffective assistance of counsel stemming from the trial court's denial of a continuance. The state court denied relief on both claims. The Saltses petitioned the Mississippi Supreme Court for review, and their petition was denied without opinion.

After exhausting their state remedies,⁴ the Saltses petitioned for a writ of habeas corpus in the United States District Court for the Northern District of Mississippi. A...