Vega v. Johnson

• Decision Date: 30 July 1998
• Docket Number: No. 97-50875,97-50875
• Citation: 149 F.3d 354
• Parties: Martin Sauceda VEGA, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 354

149 F.3d 354

Martin Sauceda VEGA, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-50875.

United States Court of Appeals Fifth Circuit.

July 30, 1998.

Victor Amador, Dallas, TX, for Petitioner-Appellant.

Douglas A. Danzeiser, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, WIENER and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Martin Vega, who confessed to a murder-for-hire, seeks habeas corpus relief from a sentence of death. The federal district court denied relief. Because most of Vega's claims are entirely meritless and the others are barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we affirm.

I.

In July 1985, after receiving a report of a homicide, Sheriff Mike Bading discovered the body of James Mims lying alongside a road. Bading and other officers arriving at the same time recovered several items belonging to Mims, including a comb, a screwdriver-type key chain, a pocket knife, and some change. They also found three spent .22 caliber cartridges.

Mims's skull had been hit with a blunt object, possibly a handgun, and he had been shot eight times; his shirt was saturated with blood, and the rest of his clothes were wet from a source other than blood. One of the bullets had passed through his lung, aorta, and heart, probably causing his death. Two .22 caliber bullets were removed from his body and analyzed.

Vega confessed to the murder in January 1988. He stated that Linda Mims had encouraged him to murder her husband, promising to marry him afterward and to give him $30,000 of the $150,000 life insurance proceeds. Vega did in fact marry her and enjoyed substantial sums of money obtained from insurance proceeds.

In one of his statements, Vega revealed the location of the alleged murder weapon, a .22 caliber handgun. This weapon, along with the cartridges allegedly fired by the handgun but not found at the murder scene, were at the specified location and presented at trial. Vega also explained that the victim was wet because of a failed attempt to drown him. Vega insisted that Linda Mims be arrested immediately upon his confession.

Vega made one statement in his handwriting and signed it in the presence of two officers; subsequently he made other statements containing details of the events relating to the murder. He received Miranda warnings before confessing.

II.

A.

Vega was indicted for capital murder in February 1988, charged with shooting Mims for the promise of remuneration. William Rugeley was appointed to represent Vega. The trial court found that Vega's confession and related statements were made voluntarily and were legally admissible at trial.

Vega apparently disagreed with Rugeley about his defense, so in August 1988 he filed a pro se motion to dismiss Rugeley because they did "not agree with each other and [could] not see eye to eye"; Vega claimed he had funds to hire his own attorney who would better serve his interests. At a hearing held in October, the court informed Vega that Rugeley would continue to represent him until he retained counsel of his own, at which time Rugeley would be removed. At no time thereafter did Vega indicate that he had employed counsel.

In January 1989, eleven days before trial, Rugeley filed a motion to withdraw, stating that Vega had refused to communicate with him. The court allowed Vega to state his position, which at that time was that Rugeley had told him to plead guilty even though he was innocent. Rugeley stated that Vega would not cooperate with him, which would cause him to be unprepared for trial. The court refused to remove Rugeley at that late date.

B.

The jury found Vega guilty. He testified only at the punishment phase, at which the state introduced evidence of previous extraneous offenses as aggravating factors. These offenses included the alleged forcible detention and rape at gunpoint of one Shirley Barnard in 1984. Although in that case Vega was indicted on a sexual assault charge, the charge was subsequently dropped when the government was unable to locate the victim to testify. Instead, the government proceeded to trial on a felon-in-possession charge based on Vega's supposed use of a gun in the alleged rape. Vega was acquitted of this charge and of the lesser included offense of unlawful possession of a handgun.

During the punishment phase of the 1989 capital murder trial, the state called Barnard to testify to the alleged rape, emphasizing Vega's future dangerousness. The jury apparently found this information significant, because it asked to re-examine the evidence of the firearm trial and Barnard's testimony. Vega was convicted and appealed to the Texas Court of Criminal Appeals, submitting pro se briefs and motions in addition to those filed by Rugeley.

III.

Vega argues that the state violated his due process rights by allowing the prosecution to employ, at the appellate stage of the litigation only, Charles Kimbrough, an attorney who had represented Vega during his felon-in-possession trial. Although Kimbrough apparently played no role until after that conviction was obtained, and was limited to the trial record in his briefs and arguments, Vega asks us to find that Kimbrough's involvement made the murder trial fundamentally unfair and that he is entitled to habeas relief. Because such a holding would be an extension of prior law about which reasonable minds could disagree, Teague bars the relief Vega requests.

In Teague, the Court held that federal courts may not create new constitutional rules of criminal procedure on habeas review. A new rule is one which was not "dictated by precedent existing at the time the petitioner's conviction became final." 489 U.S. at 301, 109 S.Ct. 1060. A new rule is created if the rule is, "in light of this Court's precedent, 'susceptible to debate among reasonable minds.' " O'Dell v. Netherland, 521 U.S. 151, ----, 117 S.Ct. 1969, 1974, 138 L.Ed.2d 351 (1997) (citing Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990)). Accordingly, we must examine existing precedent and decide whether, under that precedent, relief is required. If reasonable minds could differ on whether current law requires relief, we may not grant relief without creating a "new rule" barred by Teague.

No court of which we are aware has considered the fact scenario presented here. In general, our jurisprudence has considered two relevant types of conflict-of-interest claims: "multiple representation" and "switching sides." Multiple representation occurs when an attorney represents multiple parties with conflicting interests, possibly influencing him to reject a strategy that would produce optimal results for one client, in order to improve results for another. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Switching sides occurs when an attorney starts out representing one party, then represents an adverse party in the same or related litigation. The extent to which jurisprudence developed in the multiple representation context may be applied to the switching sides context is currently unresolved. ¹

This is a case of switching sides, but not of doing so in the course of a single litigation matter. In such a case, the ethical duty of loyalty prevents Kimbrough from acting against Vega's interests. That duty lasted only as long as the litigation matter, however, and then ceased to restrict Kimbrough's options. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Once the matter ended, Kimbrough's only duty was to protect confidential information he received in his capacity as attorney.

If Kimbrough had represented Vega in the possession case and then prosecuted him at the trial level here, we would have to ask only whether the matters were substantially related. If so, the potential for abuse of confidential information obtained through the prior representation would be high, and Vega's trial likely would be deemed fundamentally unfair if Vega had called this conflict to the trial court's attention, or the conflict was obvious to the court. See Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Because neither this circuit nor the Supreme Court has considered a situation in which a prosecutor formerly represented the defendant, however, even this might require a new rule.

Still more divorced from existing precedent is the scenario presented here. Not only have we never held that a defendant's former attorney may not handle an appeal against him in a subsequent case, but we would be unlikely to do so without applying a harmless error standard. Unlike the multiple representation standard addressed in Holloway, where prejudice is both likely and difficult to identify, the situation here presents little risk of harm to Vega's interests, and there is an easy way to spot abuse should it occur.

Kimbrough was limited to the trial record on appeal and could not supplement it with facts or observations taken from his prior representation. The only way to abuse his confidential information would be to introduce such extraneous information and hope that the appellate court, while pretending to ignore it as outside the record, would be influenced. Yet Vega fails to point out any instances in which information outside the record was introduced on appeal. Because we could easily identify such a use of confidential information were it present, the argument against harmless error set forth in Holloway does not apply. ²

Vega points to Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), for the proposition that even the appearance of impropriety requires reversal. That case involved the reversal of a state supreme court decision written by a...