Serra v. Michigan Dept. of Corrections

Decision Date29 October 1993
Docket NumberNo. 93-1364,93-1364
Citation4 F.3d 1348
PartiesJoseph Michael SERRA, Petitioner-Appellee, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Respondent, Raymond G. Toombs, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

James C. Thomas (argued and briefed), Lawrence R. Greene, Detroit, MI, for petitioner-appellee.

Lisa C. Ward, Asst. Atty. Gen. (argued and briefed), Habeas Corpus Div., Lansing, MI, for respondent-appellant.

Before: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

Raymond G. Toombs appeals the grant of petitioner Joseph Serra's writ of habeas corpus. The district court found petitioner's Sixth Amendment right to counsel was violated when his retained counsel was disqualified and that he was denied a fair trial when the prosecutor referred to a prior conviction similar to the offense charged. After considering the arguments and reviewing the record, we find that petitioner is not entitled to habeas corpus relief.


Petitioner Serra and his then current girlfriend, Deborah Poole, were arrested while driving a 1977 Oldsmobile. A search of the car revealed a triple beam scale packed in a duffel bag containing belongings of both Serra and Poole. In Poole's purse, the officers found ten small packets of a white powder substance which later was determined to weigh 3.5 grams and contain cocaine. The title to the car listed both Serra and Poole; however, Serra had signed off on the back of the title, conveying ownership to Poole. Their driver's licenses were both issued with the same current address and listed the same prior address as well. Pursuant to a plea agreement, Poole pled guilty to possession of cocaine and was sentenced to 60 days in jail. Serra was convicted of possession with intent to deliver less than 50 grams of a mixture containing the controlled substance cocaine and of being a third felony habitual offender. Serra was sentenced to 12 to 40 years imprisonment.

Serra appealed his conviction. A divided Michigan Court of Appeals affirmed. The dissenting judge concluded petitioner was denied a fair trial by the prosecutor's cross-examination of petitioner regarding his prior marijuana conviction. Leave to appeal to the Michigan Supreme Court was denied. Serra then filed his first substantive petition for writ of habeas corpus. 1

The district court granted habeas corpus relief, concluding that petitioner had been unconstitutionally deprived of his Sixth Amendment right to representation by retained counsel of his own choice, and that petitioner was denied a fundamentally fair trial when the prosecutor deliberately and improperly informed the jury that Serra had a prior drug possession conviction. Respondent has appealed the issuance of the writ.


The granting of a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, involves a determination that some right guaranteed petitioner by the Fourteenth Amendment to the United States Constitution was violated in the petitioner's state court proceedings. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Our review of the district court's decision is de novo. In his petition and brief before the district court, Serra raised three issues: violation of his Sixth Amendment right to be represented by retained counsel of his own choosing; denial of a fundamentally fair trial when the prosecutor improperly informed the jury of a prior drug possession conviction; and the introduction of false testimony by a state police detective concerning forfeiture proceedings that never occurred. The district court rejected the last argument and it has not been raised on appeal; therefore, that issue has been abandoned.


Petitioner first argues that he was denied his Sixth Amendment right to retained counsel of his choice. Soon after their arrest, Serra and Poole retained Robert P. Holman to represent them. Serra and Poole were scheduled for a joint preliminary examination. Holman filed petitions for separate preliminary examinations, alleging that defendant Poole's defense was "antagonistic to the position of" Serra. The prosecutor then filed a motion to disqualify Holman as Poole's attorney, citing Holman's allegation that the two defendants had antagonistic defenses. After a hearing on the motion to disqualify, the trial court ruled that both cases would be consolidated for purposes of the preliminary examination and denied the prosecution's motion to disqualify Holman. The court stated that, while it was allowing Holman to continue to represent both Poole and Serra for purposes of the preliminary examination, the issue of disqualification could be raised again if the cases were bound over for trial.

After both cases were bound over for trial and the prosecution's motion for a consolidated trial had been denied, the prosecutor again moved to disqualify Holman from representing Poole. At a hearing on this motion, the prosecutor stated as an additional reason for seeking disqualification that "we've tried to enter into negotiation with Miss Poole because of her condition as a Defendant in this case and we have been unable to because we have the same attorney trying to protect Mr. Serra." The court then disqualified Holman from representing either Serra or Poole. The court reasoned that the defenses of each defendant were, as alleged by defendants' own counsel, intrinsically antagonistic. Each defendant would claim the narcotics and scale belonged to the other. Furthermore, since the defendants were not present at this time, there was no opportunity for the court to inquire whether they wished to waive any claim of conflict after being advised of their rights and the potential problems with having the same attorney. The court recognized that Holman presumably had gained the privileged confidence of each defendant and that "[h]is confidence from each Defendant cannot be used to advance the other Defendant's interest." Holman filed a motion to vacate the opinion and order of the court, stating neither Serra nor Poole was opposed to joint representation. After the court denied that motion, Serra filed a petition for a court appointed attorney, alleging he did not have sufficient assets to retain an attorney. Counsel was appointed and the case proceeded to trial.

At the start of trial, Serra's court appointed counsel again raised objection to the disqualification of Holman. The court refused to reconsider the disqualification even when it had been made clear that Deborah Poole was now Serra's wife, 2 and, while awaiting sentencing, she had already pled guilty.

The Sixth Amendment right to assistance of counsel is a fundamental right so essential to a fair trial that it is part of the Due Process Clause of the Fourteenth Amendment and thus applicable to the states. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). The right to the assistance of counsel at trial does not guarantee that a criminal defendant will be represented by a particular attorney. Caplin & Drysdale v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 2651, 105 L.Ed.2d 528 (1989). A criminal defendant who desires and is financially able to retain his own counsel "should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932).

While a criminal defendant who can afford his own attorney has a right to his chosen attorney, that right is a qualified right. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). The trial court "must recognize a presumption in favor of [a defendant's] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Id. at 164, 108 S.Ct. at 1700.

The district court concluded, and we agree, that the initial disqualification of Holman was not a violation of petitioner's Sixth Amendment right. However, the district court concluded that the refusal to re-evaluate the situation at the time of trial when the issue was again raised and the refusal to allow Holman to renew his representation of Serra violated his Sixth Amendment right. We disagree. The district court focused on the fact that the prosecution had not indicated an intent to call Deborah Poole as a witness and, if the prosecution had, under Michigan law Serra's permission would have been required because she was now his wife. Mich.Comp.Laws Ann. Sec. 600.2162. Thus, the district court reasoned that Holman's representation of Serra would not present a conflict of interest because he would not be called upon to cross-examine his former client. The district court concluded that, lacking a true conflict of interest, the trial court's denial of petitioner's counsel of choice was a violation of his Sixth Amendment right requiring habeas corpus relief.

When a criminal defendant seeks to be represented by retained counsel and that representation may result in a conflict of interest, the district court must balance "two Sixth Amendment rights: (1) the qualified right to be represented by counsel of one's choice, and (2) the right to a defense conducted by an attorney who is free of conflicts of interest." Wheat, 486 U.S. at 157, 108 S.Ct. at 1696.

The district court's characterization of the potential conflicts of interest oversimplifies the scope of Holman's possible conflicts. Had the prosecution indicated an intent to call Poole and had the two not become husband and wife, we would be faced with exactly the same factual scenario as in Wheat --an attorney potentially having to cross-examine a former...

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