Habeas Corpus,  Ninth Circuit

Conflict with Appellate Counsel Doesn’t Merit Habeas Relief

In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.