Petition for Writ of Certiorari — Torrance Bunch, Petitioner v. United States

Supreme Court briefNov 13, 2017

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The decision of the United States Court of Appeals for the Eighth Circuit.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-1030

Torrance Bunch, also known as Torrence Bunch

Petitioner Appellant

United Statc ol America

Respondent Appellee

Appeal from U.S. District Court for the Western District of Arkansas

(2: 14-cv-02 I 07-PKH)

Ft. Smith

JUDGMENT

Before WOLLMAN, MURPHY and COLLOTON, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application fo r a certificate of appealability is denied. The appeal is dismissed.

May 19, 2017

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Is! Michael E. Gans

Appellate Case: 17-1030 Page: 1

Date Piled 05/19/2017 Entry ID: 4538020

The decision of the United States District Court for the Western District of

Arkansas (Fort Smith Division).

APPENDIX B

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT v. TORRANCE BUNCH,

DEFENDANT/PETITIONER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, FORT SMITH

DIVISION

2016 U.S. Dist. LEXIS 176511

Case No. 2:10-CR-20024,Case No. 2:14-CV-02107

December 21, 2016, Decided

December 21, 2016, Filed

Editorial Information: Prior History

United States v. Bunch, 2015 U.S. Dist. LEXIS 183256 (W.D. Ark., Dec. 22, 2015)

Counsel

Torrance Bunch, Petitioner (2:14cv2107), Pro Se, Pollock, LA USA.

For USA, Plaintiff (2:10-cr-20024-PKH): Clay Fowlkes, LEAD

ATTORNEY, U. S. Attorney's Office, Fort Smith, AR.

Judges: P.K. HOLMES, III, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion

Opinion by:

P.K. HOLMES, Ill

Opinion

ORDER

The Court has received a report and recommendations (Doc. 266-2) from United States Magistrate

Judge James R. Marschewski. The Magistrate Judge conducted an evidentiary hearing on December

3, 2015 and heard testimony from witnesses. The Magistrate Judge weighed the testimony of the

witnesses and made findings of fact in the report and recommendations with respect to the three

grounds put forth by Defendant/Petitioner for vacating his sentence. The Magistrate Judge prepared

a summary of the testimony from the evidentiary hearing which is made part of the report and

recommendations (Doc. 266-1). Ultimately, the Magistrate Judge recommends denying the motion to

vacate and dismissing this case with prejudice. The Defendant/Petitioner has filed objections to the

report and recommendations with respect to the Magistrate Judge's findings on two of the three

forwarded grounds for vacating the sentence under 28 U.S.C. § 2255 (Doc. 282).

After careful review of the report and recommendations and the summary of the testimony of the

witnesses, and de novo review of the law and evidence with respect to the objections filed by the

Defendant/Petitioner, the Court concludes that the report and recommendations should be, and

hereby are, APPROVED AND ADOPTED as this Court's findings in all respects in their entirety.

IT IS THEREFORE ORDERED that Defendant/Petitioner Torrance Bunch's motion to vacate his

sentence under 28 U.S.C. § 2255 (Doc. 214) is DENIED, and his case is DISMISSED WITH

PREJUDICE.

Judgment will be entered separately.

IT IS SO ORDERED this 21st day of December, 2016.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

.t.

Is! P. K. Holmes, III

P.K. 1-IOLMES, III

CHIEF U.S. DISTRICT JUDGE

JUDGMENT

Pursuant to the order entered in this case on this date, IT IS CONSIDERED, ORDERED, and

ADJUDGED that the habeas petition in this case is DISMISSED WITH PREJUDICE.

IT IS SO ADJUDGED this 21st day of December, 2016.

Is! P. K. Holmes, III

P.K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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The opinion of the United States Magistrate Judge.

APPENDIX C

UNITED STATES of AMERICA, PLAINTIFF/RESPONDENT v. TORRANCE BUNCH,

DEFENDANT/PETITIONER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, FORT SMITH

DIVISION

2015 U.S. Dist. LEXIS 183256

No. 2:10-cr-20024,No. 2:14-cv-02107

December 22, 2015, Decided

December 22, 2015, Filed

Editorial Information: Subsequent History

Adopted by, Post-conviction relief denied at, Dismissed by, Judgment entered by United States v.

Bunch, 2016 U.S. Dist. LEXIS 176511 (W.D. Ark., Dec. 21, 2016)

Editorial Information: Prior History

United States v. Bunch, 2011 U.S. Dist. LEXIS 36200 (W.D. Ark., Mar. 24, 2011)

For USA, Plaintiff (2:10-cr-20024-PKH): Clay Fowlkes, LEAD

ATTORNEY, U. S. Attorney's Office, Fort Smith, AR.

Torrance Bunch, Petitioner (2:14cv2107), Pro Se, Pollock, LA

USA.

Judges: HONORABLE JAMES R. MARSCHEWSKI, UNITED STATES MAGISTRATE JUDGE.

Counsel

Opinion

Opinion by:

JAMES R. MARSCHEWSKI

Opinion

REPORT and RECOMMENDATION

Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28

U.S.C. Section 2255 (ECF No. 214) filed April 4, 2014. The United States of America filed a

Response (ECF No. 227) on May 30, 2014. On March 2, 2015 the court entered an Order appointing

the Federal Public Defender to represent the Petitioner. (ECF No. 246) and a hearing was set for

August 6, 2015. (ECF No. 247). After several continuances the hearing was conducted on December

3, 2015 and the matter is ready for Report and Recommendation.

I. Background

A. Case History:

On May 26, 2010, Torrance Bunch ("Bunch") was named in Counts 1, 2, 3, and 5 of a five-count

Indictment filed in the United States District Court for the Western District of Arkansas. (ECF No. 1.)

Mr. Bunch was charged in Count 1 with conspiracy to possess with intent to distribute in excess of

500 grams or more of a mixture of a substance that contained methamphetamine from about

January 1, 2008, to about May 24, 2010; in Count 2 with aiding and abetting to distribute 5 grams or

more of actual methamphetamine on or about March 3, 2010; in Count 3 with aiding and abetting to

distribute 5 grams or more of actual meth-amphetamine on or about May 8, 2010; and in Count 5

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

14681k)

with aiding and abetting to distribute 5 grams or more of actual methamphetamine on or about March

17, 2010.

Prior to the jury trial, Bunch's attorney, Rex Chronister, determined that he had a conflict of interest

in the case, due to the fact that he had previously represented Amanda Hall for the state charges of

conspiracy to possess methamphetamine with the intent to distribute. (ECF No. 78.) Mr. Chronister

felt that this conflict arose when Amanda Hall signed a plea agreement with the Government and

agreed to testify at the jury trial against Bunch. (Id.) On October 13, 2010, Mr. Chronister alerted the

Court to the conflict and the Court removed him from the case. (Id.)

At the hearing held on October 13, 2010, the Court informed Bunch of the conflict and ordered him to

either seek to retain another attorney to represent him or accept the Court's appointment of a public

defender to represent him during the trial. (ECF No. 163, pp. 7.)The record reflects that Bunch made

no statement at this hearing and evidently took no action on this directive from the Court. (ECF No.

164, pp. 3.) On October 25, 2013, the Court ordered Bunch to immediately retain counsel to enter an

appearance on his behalf or to advise the Court that he intended to proceed pro se at the jury trial.

(ECF No. 79.)

Bunch again took no action and the Court set a hearing on the matter on November 2, 2010. During

the hearing, the Court questioned Bunch about his failure to retain another attorney to represent him

and also told Bunch about the dangers of self-representation. (ECF No. 164) At this hearing, Bunch

steadfastly refused to accept the appointment of an attorney to represent him and (despite repeated

explanations of the conflict issue by the district court) insisted that he did not understand why his

retained counsel, Mr. Chronister, was allowed to withdraw. (11/2 Tr., pp. 6.) When the Court

questioned Bunch about whether he intended to hire a lawyer or whether he intended to accept the

appointment of a lawyer, Bunch refused to provide an answer to the question. (11/2 Tr., pp. 6-8.) At

the conclusion of the hearing, the Court instructed Bunch that he would either have to hire another

lawyer, accept the appointment of a public defender, or proceed to the jury trial pro Se. (11/2 Tr., pp.

8.)

On November 8, 2010, the United States filed an Information to Seek Enhancement Pursuant to Title

21 U.S.C. § 851(a) based on his prior convictions for drug trafficking offenses. (ECF No. 88.) The

jury trial began in this case on the morning of November 8, 2010. Prior to the start of jury selection,

the Court again held a hearing regarding Bunch's attorney-status. (JT, pp 5.) At this hearing, the

Court again reminded Bunch of his options regarding an attorney, and questioned him about what he

wanted to do. (JT, pp 6-7.) Bunch refused to answer the Court's questions. (Id.) As a result, the Court

instructed Bunch regarding the dangers of self-representation, questioned him again about whether

he wanted to accept an appointed attorney, actually appointed a local attorney as stand-by counsel,

and proceeded to seat a jury panel. (JT, pp 8-13.) During the trial, Bunch represented himself and he

refused to answer any of the Court's questions.

At the conclusion of the trial on November 9, 2010, the jury returned guilty verdicts on all the charges

against Bunch. (ECF Nos. 97-100.) On November 16, 2010, Bunch filed a Motion for Judgment of

Acquittal (ECF No. 102) which was denied by the Court on December 1, 2010. (ECF No. 109.) Bunch

filed a notice of appeal on November 18, 2010. (ECF No. 104.)

On Fbruary 22, 2011, Bunch filed a Motion for New Trial on the basis that his Sixth Amendment

right to counsel had been violated and that the requirements of 21 U.S.C. § 841 and § 851 had not

been met. (ECF No. 133.) The Court denied the motion on March 24, 2011. (ECF No. 162.).During a

sentencing hearing held on April 25, 2011, Bunch was sentenced to a mandatory life sentence as a

result of his prior convictions for drug trafficking offenses. (ECF No. 176.)

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

On appeal, Bunch argued that the Court erred in finding that he effectively waived his right to legal

representation, proceeding through jury trial with him pro se with standby counsel, as there was no

waiver, much less a waiver that was voluntary, intelligent, knowing, clear, and unequivocal. United

States v. Sanchez-Garcia, 685 F.3d 745, 750-52 (8th Cir. 2012). On July 18, 2012, the Eighth Circuit

filed its opinion concluding that Bunch knowingly and intelligently waived his right to counsel during

trial in finding that the Court's rulings did not violate Bunch's rights under the Sixth Amendment. Id.

at 751-52. On April 10, 2013, Bunch filed a Petition for Writ of Certiorari (ECF No. 208) that was

denied by the United States Supreme Court on May 3, 2013. (ECF No. 211.).

On April 28, 2014, Bunch filed the instant Pro Se Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence by a Person in Federal Custody (the 2255 Motion") (ECF No. 214.)

contending as follows:

"§

Ground One: "Counsel's failure to properly advise Petitioner of his legal rights cause him to

inadvertently waive the right to couns(el)." (Id., p. 4)

Ground Two: "The trial- was unnecessarily conducted as a non-adversarial proceeding in violation of

Due Process". (Id., p. 5).

Ground Three: "Failure of appellate counsel to challenge the violation of right to choice of counsel

and the miscarriage of justice inherent in a non-adversarial proceeding." (Id., p. 7).

B. Evidentiary Hearing:

An Evidentiary Hearing was conducted on December 3, 2015. At the hearing the Defendant admitted

into evidence without objection Exhibits 1-12 and 14-43. The Government objected to Exhibit 13

(DEA Form 6) and it was not admitted, however, the parties stipulated that Amanda Hall did give a

proffer interview on July 7, 2010 and that her attorney, Barry Neal was present, along with the

government DEA agent, and the representative from the U.S. Attorney's office. The following

individuals testified at the Evidentiary Hearing: Torrance Bunch, Barry Neal, Rex Chronister, and

Jeff Harrelson. A summary of their testimony is attached. (See Attachment 1).

If. Discussion

A. Ground One: Ineffective Assistance of Counsel:

The Petitioner first contends that his attorney failed to properly advise him of his rights causing him

to "inadvertently waive the right to counsel."

The Sixth Amendment of the Constitution of the United States affords a criminal defendant with the

right to assistance of counsel. U.S. Const. amend. VI. The Supreme Court "has recognized that the

right to counsel is the right to effective assistance of counsel." Strickland v. Washington, 466 U.S.

668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759,

771, n. 14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).

A defendant "faces a heavy burden" to establish ineffective assistance of counsel pursuant to §

2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000); 2254. Cox v. Wyrick, 642 F.2d 222,

226 (C.A.Mo., 1981) To establish a claim of ineffective assistance of counsel, the Defendant must

satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).

First, under the "deficient performance" component, he must show that his counsel "made errors so

serious that counsel was not functioning as the 'counsel' guaranteed [him] by the Sixth Amendment."

Strickland, 466 U.S. at 687. That showing can be made by demonstrating that counsel's performance

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

"fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 522, 123 S.

Ct. 2527, 156 L. Ed. 2d 471 (2003)(internal citations omitted.

Second, under the "prejudice" component, he must demonstrate that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694. see also, i.e. United States v Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.

2005)(post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel

unless the petitioner can show not only that counsel's performance was deficient but also that such

deficient performance prejudiced his defense).

To satisfy this "prejudice" prong, Defendant must show "that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been different

reasonable probability [meaning] a probability sufficient to undermine confidence in the outcome."

U.S. v. Rice, 449 F.3d 887 at 897 (internal quotations omitted). Thus, it is not sufficient for a

defendant to show that the error had some "conceivable effect" on the result of the proceeding

because not every error that influences a proceeding undermines the reliability of the outcome of the

proceeding. Morales v. Au/I, 476 F.3d 545 (8th Cir.2007) (citing Odem v. Hopkins, 382 F.3d 846, 851

(8th Cir.2004)). Additionally, actual prejudice does not exist where a petitioner, at best, suffers the

mere possibility of prejudice. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L.

Ed. 2d 475 (1982); Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996) (mere possibility does

not equal actual prejudice). Although the two prongs of the "ineffective assistance" analysis are

described as sequential, courts "do not... need to address the performance prong if petitioner does

not affirmatively prove prejudice." Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir.1999).

...

Interlocutory Appeal:

The Petitioner argues that his attorney should have advised him that he could have filed an

interlocutory appeal of the court's order allowing him to withdraw (ECF No. 214, p. 4) and the

Petitioner cites U.S. v. Agosto 675 F.2d 965 at 970 (1982). However, approximately two years after

the Agosto decision, the Supreme Court unanimously held that pretrial orders disqualifying counsel

in criminal cases are not subject to immediate appeal under 28 U.S.C. § 1291. Flanagan v. United

States, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). It cannot be ineffective assistance

not to raise a meritless argument. Larson v. U.S. 905 F.2d 218, 219 (C.A.8 (Minn.),1990). Thus,

because the Eighth Circuit would have been without jurisdiction to hear an interlocutory appeal on

the Court's order permitted Mr. Chronister to withdraw as counsel, Bunch is unable to demonstrate

any deficiency on the part of counsel in failing to file an interlocutory appeal.

Conflict of Interest:

The Defendant also argues that his attorney "incorrectly informed his client that the only remedy for a

conflict caused by successive representation was withdrawal of representation." (ECF No. 214, p. 4).

During the entire course of the Evidentiary Hearing the Defendant did not specifically state how his

attorney's actions caused him to waive his right to counsel but did spend a great deal of time on the

alleged conflict issue.

a. State Court Case:

It is undisputed that Mr. Chronister represented both Amanda Hall and Mr. Bunch in their state court

case in 20091 and the Defendant asserted that such representation constituted a conflict of interest.

The Defendant argued at the hearing that his attorney had a conflict when he represented both he

and Amanda Hall in a state court proceeding.

The Supreme Court has recognized that the right guaranteed by the Sixth Amendment includes the

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

"right to representation that is free from conflicts of interest." Atley v. Ault, 191 F.3d 865 at 869 (citing

Wood, 450 U.S. at 271, 101 S. Ct. 1097) (other citations omitted)."When burdened by a conflict of

interest, counsel 'breaches the duty of loyalty, perhaps the most basic of counsel's duties' and,

therefore, fails to provide effective assistance of counsel." Id. (citing Strickland v. Washington, 466

U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

It is settled that "[r]equiring or permitting a single attorney to represent codefendants, often referred

to as joint representation, is not per se violative of constitutional guarantees of effective assistance

of counsel." Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

However, appointing or permitting a single attorney to represent codefendants does create a possible

conflict of interest that could prejudice either or both clients. See Burger v. Kemp, 483 U.S. 776,

107 S. Ct. 3114, 3120, 97 L. Ed. 2d 638 (1987). The possibility of prejudice does not justify "an

inflexible rule that would presume prejudice in all cases." Id. Instead, prejudice is presumed "only if

the defendant demonstrates that counsel "actively represented conflicting interests" and "an actual

conflict of interest adversely affected his lawyer's performance." *479"' Id. (quoting Strickland v.

Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)) (quoting Cuy!er v.

Sullivan, 446 U.S. 335, 348, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) (footnote omitted));

Harrison v. State, 371 Ark. 474, 478-79, 268 S.W.3d 324, 328-29 (2007)

In the state case Mr. Chronister testified that he never spoke to Mr. Bunch or Ms. Hall but that he and

Mr. Fields had reviewed the state's case file and determined that there was an issue with the search

warrant issued by the state in their case. He did explain that Mr. Fields had spoken with both but was

not aware of that conversation. In Mr. Chronister's opinion, because of the defect in the search

warrant, a very favorable plea was negotiated and both Ms. Hall and Mr. Bunch plead to a

suspended sentence and a fine. They plead on the same day, at the same time, in front of the same

judge and both were represented by Mr. Chronister at the time of plea. (Ex. 5 & 6). Neither voiced

any objection to the joint representation by Mr. Chronister at the time of plea.

There has been no evidence produced that there was a conflict between Mr. Bunch or Ms. Hall at the

time Mr. Chronister represented them in the state court proceedings and the evidence indicates

otherwise.

b. Federal Indictment:

The federal indictment in the present case was filed on May 26, 2010 (Ex. 9). It is undisputed that

Count I of the indictment (Conspiracy to Distribute Methamphetamine) included the time frame of the

state court case referred to above. According to both Mr. Bunch and Mr. Chronister, Mr. Bunch

retained the law firm of Chronister, Fields & Flake sometime in June to represent Ms. Hall and sent

money for that purpose. (Ex. 11). Mr. Bunch was subsequently arrested and it was determined that

neither Mr. Chronister or Mr. Fields could represent Amanda and it was agreed that they would

represent Mr. Bunch for a fee of $25,000 up until trial and an additional $10,000 if the case went to

trial. It was also agreed that all money paid on behalf of Amanda would be credited on Mr. Bunch's

fee.

Ms. Hall made her Initial Appearance on June 11, 2010 and Barry Neal was appointed to represent

her. (Ex. 12). Ms. Hall made a proffer of her testimony on July 7, 2010 and present was the AUSA,

Detective Hersey, and Mr. Neal.

On July 9, 2010 Mr. Bunch appeared with Mr. Chronister for his Initial Appearance. Mr. Bunch and

Mr. Chronister both testified they were unaware of Ms. Hall's proffer at - this time. Mr. Bunch testified

that during the entire time Mr. Chronister represented him he never spoke about a conflict with Ms.

Hall. He testified that Mr. Chronister told him that the government had objected to him representing

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

both Ms. Hall and himself but that he never explained why they objected.

Mr. Chronister testified that he never told Mr. Bunch that the government objected to his

representing both Mr. Bunch and Ms. Hall. He stated that at the initial appearance he met with Mr.

Bunch and explained that he could not represent both Mr. Bunch and Ms. Hall because of a conflict

and that if Ms. Hall testified they would have a problem. Mr. Chronister testified that Mr. Bunch

stated that he and Ron Fields had talked about that and it was no problem because Ms. Hall was

never going to testify against him. Mr. Chronister testified that Mr. Bunch repeatedly and vociferously

always stated to him that Ms. Hall would never testify. Mr. Chronister was of the opinion that as long

as Ms. Hall did not testify there was no conflict.

The Arkansas professional conduct rule specifically states that a concurrent conflict of interest exist if

"there is a significant risk that the representation of one or more clients will be materially limited by

the lawyer's responsibilities to another client, a former client or a third person or by a personal

interest of the lawyer." (Ark. Rules of Prof. Conduct, Rule 1.7(b).

1. Materially Limited:

It is understandable how Mr. Chronister may have believed that his representation of Mr. Bunch in

his federal case was not materially limited as a result of his state court representation of Amanda

Hall. He testified that he never spoke to Ms. Hall about her criminal case but merely reviewed the file

with Ron Fields. He did not testify that he acquired any knowledge about Ms. Hall as a result of the

state court representation that he could have used against her in the federal proceeding. In addition

Mr. Bunch informed him at the time of his initial appearance that Ms. Hall was not going to testify

against him. Mr. Bunch affirmed that position when Mr. Chronister again raised the conflict issue in

Septehiber when he and Mr. Fields visited him in jail to go over evidence and a plea offer. Without

deciding the issue it is possible that there was never a real material limitation on Mr. Chronister's

examination of Ms. Hall.

I appears that the government was the first for form the opinion that Mr. Chronister's representation

of Mr. Bunch constituted a conflict when it reached the plea agreement with Ms. Hall and decided to

utilize her testimony. After Mr. Chronister was informed that Ms. Hall signed her plea agreement and

agreed to testify the government informed Mr. Chronister, by email on October 4, 2010, that it

believed a conflict existed. (Ex. 27). Mr. Chronister testified that when Amanda choose to testify that

created the appearance of a problem we had to deal with. R. 3:01:13. At that point in time there is a

no win situation. Whether it was or was not technically a conflict it was the appearance of one. R.

3:01:49. I did not believe I had a conflict prior to Amanda Hall's agreement to testify (R. 3:02:05)

because if she did not testify there is no problem cross examining her. If both plead guilty there was

no problem representing Mr. Bunch. R. 3:02:26. Mr. Chronister attended the change of plea for Ms.

Hall on October 6, 2010 (ECF No. 70) and after the change of plea had a meeting with the presiding

judge, Barry Neal, and the AUSA. At that meeting the conflict issue was discussed.

In the successive representation situation, privileged information obtained from the former client

might be relevant to cross-examination, thus affecting advocacy in one of two ways: (a) the attorney

may be tempted to use that confidential information to impeach the former client; or (b) counsel may

fail to conduct a rigorous cross-examination for fear of misusing his confidential information. U.S. v.

Agosto 675 F.2d 965, 971 (C.A.Minn., 1982).

The Arkansas courts have "recognized that if an attorney's representation of a current client is

substantially related to the attorney's representation of a former client, "a presumption arises that

confidences of the former client were disclosed to the former attorney." See Samontry v. State, 2012

Ark. 105, 8-9, 387 S.W.3d 178, 183 (Ark., 2012) citing Sturdivant v. Sturdivant, 367 Ark. 514, 519,

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

241 S.W.3d 740, 745 (2006) (citing Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986)).) The

Arkansas court "has further explained that, in those situations, the court will entertain the

presumption and will not inquire into the nature and extent of the confidences; the confidential

disclosures, whether actual or presumed, command the disqualification of the attorney when he or

she represents an adverse interest in a related matter." Id.

Barry Neal indicated after Ms. Hall's plea that he would not waive the conflict and he confirmed that

position at the hearing. According to Mr. Neal there was no way that he was going to allow his client

to waive the conflict. Without her waiver the trial court was faced with an impossible situation

because it was facing a "conflict-free" argument if it allowed Mr. Chronister to remain as Mr. Bunch's

attorney.

As a result of the meeting with the court on October 6, 2010, Mr. Chronister drafted and delivered a

letter to Mr. Bunch on October 8, 2010. He again discussed the conflict issue with Mr. Bunch who

refused to acknowledge it and stated that if Amanda did testify she was going to exonerate him.

Mr. Chronister, Mr. Neal and Mr. Harrelson all testified that, in their opinion, the conflict did not arise

until Ms. Hall made the election to testify. The Eighth Circuit also recognized the conflict and that Mr.

Chronister "was required to withdraw." U.S. v. Sanchez-Garcia 685 F.3d 745, 751 (C.A.8

(Ark.),2012). The only recourse open to the court was the relieve Mr. Chronister.

The Defendant has failed to offer any evidence as to how Mr. Chronister's withdrawal caused him to

"inadvertently waive" his right to an attorney.

2. Prejudice.

Even if counsel's performance was somehow deemed deficient, the movant must also establish

"prejudice" to overcome the presumption of reasonable professional assistance. Ledezma-Rodriguez,

423 F.3d at 836; Davis, 423 F.3d at 877. To satisfy this "prejudice" prong, Petitioner must show "that

there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different ... a reasonable probability [meaning] a probability sufficient to

undermine confidence in the outcome." Rice, 449 F.3d at 897 (internal quotations omitted) Thus, it is

not sufficient for a defendant to show that the error had some "conceivable effect" on the result of

the proceeding because not every error that influences a proceeding undermines the reliability of the

outcome of the proceeding. Morales v. Au/I, 476 F.3d 545 (8th Cir. 2007)(citing Odem v. Hopkins,

382 F.3d 846, 851 (8th Cir. 2004)) Although the two prongs of the "ineffective assistance" analysis

are described as sequential, courts "do not need to address the performance prong if petitioner

does not affirmatively prove prejudice." Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir.1999).

...

The testimony establishes that Mr. Chronister and his firm undertook the representation of the

Defendant for a fee of $25,000. The $25,000 only covered the fee up until trial and an additional fee

of $10,000 would be necessary if the case were to go to trial.

Mr. Chronister testified that the additional $10,000 had been tendered to him prior to his withdrawal

and he suggested to the family that they use that money to retain another attorney. There was no

testimony from Mr. Bunch about why he was unable to retain another attorney prior to trial. The jail

records show that he did visit with Erwin Davis, a member of the bar, on October 14, 2010. (Ex. 15).

There was no testimony as to why Mr. Davis, or any other attorney was not retained. On October 30,

2010 the Defendant wrote to the court stating that he was "currently unable to retain new counsel

since Mr. Chronister has refused to repay the retainer that was paid to him." (Ex. 33).

Notwithstanding Mr. Bunch's ability to retain another attorney, and based on his representations that

he could not, the court offered to appoint an attorney for him which the Defendant refused. The court

appointed a standby counsel, Ms. Shannon Blatt, an attorney that the Defendant had retained in the

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

past, but the Defendant refused to speak with Ms. Blatt.

There was ample time for a new attorney, either retained or appointed, to have been prepared to go

to trial and cross examine the government witnesses. The Defendant made no credible effort to

retain counsel after the trial court relieved Mr. Chronister and refused to accept appointed counsel

and refused to communicate with Ms. Blatt who was there to assist him during trial. These were

deliberate choices made by the Defendant. The Eighth Circuit ruled that the Defendant had waived

the appointment of counsel by his conduct. The Defendant has put forth no evidence that the result

of the trial would have been any different had he retained counsel or accepted the appointment of

counsel by the court.

Ground Two: Trial Court Error

The Petitioner next contends that the "trial was unnecessarily conducted as a non-adversarial

proceeding in violation of Due Process." (ECF No. 214, p. 5). The Petitioner's argument seems to be

that the court should have appointed counsel to explain the rights as enumerated in Ground One.

(Id.).

The evidence shows that the Defendant had the funds to hire another attorney but that fact was not

made know to the court and the court repeatedly offered to appoint an attorney for the Defendant.

The Defendant refused the appointment of counsel and the court determined that the Defendant

waived his right to an attorney but still appointed Ms. Blatt to assist the Defendant at trial. The

Defendant refused to speak with Ms. Blatt when she visited him at the jail prior to trial or during the

trial.

The Eight Circuit ruled on the Petitioner's conduct concerning the court's attempt to appoint counsel

and held that:

An accused can waive his right to counsel by conduct. Courts have held that where a defendant

is warned that he must choose between continuing with court-appointed counsel or proceeding

pro se, the defendant's choice to discharge the appointed counsel constitutes a knowing and

intelligent waiver of the right to the assistance of counsel. United States v. Hoskins, 243 F.3d

407, 410 (7th Cir.2001); see also King v. Bobby, 433 F.3d 483, 492-493 (6th Cir.2006); United

States v. Irorere, 228 F.3d 816, 826-827 (7th Cir.2000). We agree with this general proposition.

U.S. v. Sanchez-Garcia 685 F.3d 745, 751 (C.A.8 (Ark.),2012).

The Defendant's ultimate choice to waive counsel cannot be imputed to the court's decision to

remove his retained counsel for a conflict. The Defendant's claim that the trial court violated Due

Process is without merit.

Ground Three: Failure of Appellate Counsel:

The Petitioner contends his appellate counsel was ineffective for his failure to "challenge the

violation of right to choice of counsel and the miscarriage of justice inherent in a non-adversarial

proceeding (ECF No. 214, p. 7) and that these omissions were "not for strategic reasons".

The Petitioner hired Jeff Harrelson shortly after his trial to handle sentencing and his appeal. Mr.

Harrelson testified that he filed a Motion for a New Trial (Ex. 35) and Objections to the PSR (Ex. 36)

and that both documents contained the following language:

"Defendant is entitled to conflict-free counsel and his attorney from July 9, 2010 until October 13,

2010, had a possible conflict of interest that was not disclosed to Defendant until October 6, 2010."

(Ex. 35, p. 3 and Ex. 36, p.2).

Mr. Harrelson testified that he and the Defendant discussed the appeal and spoke numerous times

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

over the phone to discuss the issues on appeal and that the issue he thought was the strongest was

the "way the district court had handled his waiver of counsel. R. 4:02:53. He stated that he

researched the other arguments but that was "that strong of an issue." R. 4:03:12.

While Mr. Harrelson had tendered his file to the Federal Public Defender's office he did retrieve one

letter from his computer that showed he and Mr. Bunch discussed appeal issues. Mr. Harrelson read

the pertinent part of that letter into the record as follows:

As you will notice after our conversation about whether to include sufficiency of the evidence as

a ground on appeal, I choose not to, as it was not a strong argument and one of the unwritten

rules about appeals that I believe in is not watering down your good arguments with weak ones.

R. 4:09:54

Mr. Harrelson testified that it was his job to winnow down the issues and to present the strongest

possible issue on appeal. He testified that having done the research he made a strategic decision to

only argue the waiver issue and that was the only argument presented in the appeal. (Ex. 42, p.2).2

His research showed that the choice of counsel argument was a abuse of discretion standard and

that you just didn't win those while the waiver of counsel argument was a de novo standard. R.

4:26:29. (See Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). We review a trial court's

decision to disqualify an attorney under an abuse-of-discretion standard.)

To establish ineffective assistance of appellate counsel, Defendant must show appellate counsel's

performance was deficient, and prejudice from that deficiency. Strickland, 466 U.S. at 687-88; Becht

v. United States, 403 F.3d 541, 545 (8th Cir.2005). The deficient performance standard is rigorous.

On appeal, appellate counsel is expected to winnow the issues and highlight those issues that are

most likely to prevail. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987

(1983) ("Experienced advocates since time beyond memory have emphasized the importance of

winnowing out weaker arguments on appeal."); Gee v. Groose, 110 F.3d 1346 (8th Cir.1997)

("Reasonable appellate strategy requires an attorney to limit the appeal to those issues counsel

determines have the highest likelihood of success."); Otey v. Grammer, 859 F.2d 575 (8th Cir.1987)

("This process of 'winnowing out weaker arguments on appeal and focusing on those more likely to

prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.").

"It is the obligation of any lawyer whether privately retained or publicly appointed not to clog the

courts with frivolous. appeals." Polk County v. Dodson, 454 U.S. 312, 323, 102 S. Ct. 445, 70 L.

Ed. 2d 509 (1981); Parker v. Bowersox, 94 F.3d 458, 462 (8th Cir.1996) ("To perform competently

under the Sixth Amendment, counsel is neither required nor even advised to raise every conceivable

issue on appeal."). Therefore, absent contrary evidence, "we assume that appellate counsel's failure

to raise a claim was an exercise of sound appellate strategy." Roe v. Delo, 160 F.3d 416, 418 (8th

Cir.1998) (quotation omitted).

. .

The prejudice standard is equally rigorous. Bunch must show that "the result of the proceeding would

have been different" had appellate counsel raised the issues on direct appeal. Becht, 403 F.3d at

546. He has not succeeded in this and there is no evidence that the court of appeals would have

found the trial court's discretionary decision to remove Mr. Chronister constituted error.

At the conclusion of his testimony Mr. Harrelson stated that "after everything that I have heard, read,

and answered today it is still my opinion that as between the waiver argument and the conflict

argument the waiver argument was absolutely the better argument and it was a strategic choice." R.

4:41:35. The court agrees that it was a sound strategic choice and the Defendant's claim that his

appeals counsel was ineffective is without merit.

Ill. Conclusion

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

Based upon the forgoing I recommend that the instant motion, filed under 28 U.S.C. § 2255 be

DISMISSED with PREJUDICE.

The parties have fourteen days from receipt of this report and recommendation in which to

file written objections pursuant to 28 U.S.C. Section 636(b)(1). The failure to file timely written

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED December 22, 2015.

Is! J. Marschewski

HONORABLE JAMES R. MARSCHEWSKI

U. S. MAGISTRATE JUDGE

Footnotes

Rex Chrortister represented Torrance Bunch and Amanda Hall in Sebastian County Circuit Court

case number CR 09-1395 on the charges of Possession of Methamphetamine with intent to Deliver,

Possession of MJ with intent to Deliver, Possession of Drug Paraphernalia, and Maintaining a

Premised for Drug Activity. The Defendant's entered pleas of guilty on January 18, 2006 and January

5, 2006 respectively.

The specific issue stated in the Brief was that "Appellant did not voluntarily, knowingly, intelligently,

clearly and unequivocally waive his right to counsel, thereby being denied his right to counsel as

required by the 6th Amendment to the United States Constitution.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

i 'r''-•

The order denying rehearing by the United States Court of Appeals.

APPENDIX D

Torrance Bunch, also known as Torrence Bunch, Appellant v. United States of America, Appellee

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

2017 U.S. App. LEXIS 15458

No: 17-1030

August 16, 2017, Decided

Editorial Information: Prior History

Appeal from U.S. District Court for the Western District of Arkansas Ft. Smith.

(2:14-cv-02107-PKH).United States v. Bunch, 2016 U.S. Dist. LEXIS 176511 (W.D. Ark., Dec. 21, 2016)

Counsel

Torrance Bunch, Torrance Bunch, Pro Se, Pollock, LA.

For Torrance Bunch, also known as Torrence Bunch (Federal

Prisoner: 41332-177), Petitioner

Appellant: James B. Pierce, Assistant Federal Public

Defender, Fort Smith, AR; Anna Marie Williams, Assistant Federal Public Defender,

FEDERAL PUBLIC DEFENDER'S OFFICE, Fayetteville, AR.

Appellee: Clay

For United States of America, Respondent

Fowlkes, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Fort Smith, AR.

Opinion

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

CIRHOT

restrictions and terms and conditions of the Matthew Bender Master Agreement.

(

Additional material

from this filing is

available in the

Clerk's Off ice.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.