Petition — Gray v. United States

In Tar

Supreme Court of

Che Hnited States

ROBERT LEE GRAY,

Petitioner

vs.

THE UNITED STATES OF AMERICA,

Respondent

PETi.:1ON FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL M. STEIN

(Counsel of Record)

JENNINGS §& JENKS

3435S American River Drive

Suite C

Sacramento, CA 95825

Telephone: (916)482-4910

i

QUESTIONS PRESENTED

I

WHETHER PETITIONER IS ENTITLED TO REPRE-

SENTATION OF COUNSEL UNHAMPERED BY CON-

FLICT OF INTEREST.

II

WHETHER, AT THE VERY LEAST, PETITIONER IS

ENTITLED TO AN EVIDENTIARY HEARING ON HIS

CLAIM OF INADEQUATE REPRESENTATION DUE TO

A CONFLICT OF INTEREST ON THE PART OF HIS

ATTORNEY .

a

ii

INDEX

Questions Presented............... i

Opinions Below.........ceneeeveees 1

PRA SGCER Eas wc pwc cccubesdeuwes ic 2

Statute Involved.......cesceeeeces 2

Statement Of Case...... cee ceeveeee 3

Reasons for Granting Writ......... 11

GORE LUGE GR o ooo ewe we ecvcesssiccece 12

Appendix A

Memorandum of BROWNING, Chief

Justice, MERRILL and WRIGHT,

Circuit Judges,

United States Court of Appeals

for the Ninth Circuit

OE Fee Ben BOGR 6 a0 66d 0 cv:cdeeeines 15

Order of BROWNING, Chief Justice,

MERRILL and WRIGHT, Circuit

Judges,

United States Court of Appeals

for the Ninth Circuit

OF Ew 24, 2982. chi cdsececn beesel

Exhibit 1]

Affidavit of Robert Gray.......... 19

iii

TABLE OF CASES

Brown v. United States (1982) ;

Ce SOS £hl hoo ereyy BER Oo Rae

STATUTES

Sixth Amendment of the Constitution

of the United States.........e465. 2,7,11

Title 28 U.S.C. Section 1254(1)...... 2

Title 21 U.S.C. Section 941(a)(1).... 3

Title 28 U.S.C. Section 2255......... $,11

Rule 35 of the Federal Rules of

Criminal Procedure in the

B.S. DESCKICS GOMER. oc dccvee cece sc 5

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

No.

ROBERT LEE GRAY, PETITIONER

v

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court

of the United States:

Robert Lee Gray, the Petitioner

herein, prays, that a Writ of Certiorari

issue to revicw the denial of appeal by

the United States Court of Appeals for the

Ninth Circuit entered in the above entitled

case on May 24, 1982 and the Court's denial

of Petitioner's petition for rehearing and

Suggestion for rehearing en banc on

July 14, 1982.

OPINIONS BELOW

The opinions of the Court are

printed in Appendix A hereto, infra, pages

15 through 18.

JURISDICTION

The United States Court of Appeals

for the Ninth Circuit denied Petitioner's

timely appeal on May 24, 1982 (Appendix A,

infra, page 15). A timely petition for

rehearing was denied on July 14, 1982

(Appendix A, infra, page 18). The juris-

diction of the Supreme Court is involved

under Title 28 U.S.C. Section 1254(1).

STATUTE INVOLVED

The Sixth Amendment of the Consti-

tution of the United States provides as

follows:

"In all criminal prosecutions, the

accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall

have been committed, which dis-

trict shall have been previously

a

n>.

3

ascertained by law, and to be

informed of the nature and cause

of the accusation; to be con-

fronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

assistance of counsel for his

defense."

STATEMENT OF THE CASE

On December 16, 1977, Petitioner

and a certain Marie A. Patzig were ar-

rested and charged with violation of

Title 21 U.S.C. Section 941(a)(1), Posses-

sion of with intent to distribute a con-

trolled substance.

Petitioner and Marie Patzig were

both represented by Marie Patzig's attor-

ney. Pursuant to the "stipulation rela-

tive to court trial" the Court was author-

ized, in determining guilt, to use all

Stipulations, evidence submitted at the

~

4

hearing of supprssion of evidence, all

memorandum in supdort thereof, and other

matters of recor¢ before the United States

District Court.

Pursuant to the Statement of Facts

submitted by Appellant's attorney, "Marie

A. Patzig after the search of Appellant's

residence was arrested in December 16,

1977, with the probable cause being based

on (1) the fact that approximately 219

grams gross weight of cocaine was discov-

ered in her brown flight bag that she had

identified to Agent Cameron, (2) the fact

that the 1977 Chevrolet was rented to

Patzig, and (3) the fact that 24.4 grams

gross weight of cocaine was discovered in

a Texas Instruments computer that also

contained Patzig's social security card.”

At the time that the stipulation

was filed and discussed with Petitioner,

he expressed concern as to the word

"possess" in the stipulation because the

5

cocaine was brought in against his will.

The Court, in response to Petitioner's

inquiries, asked if he knew the cocaine

was in his home and he said “Yeah, wher.

they told me."

The Court, then based on the stipu-

lated facts, found Petitioner guilty of

the charge.

On January 4, 1979, Petitioner filed

a Notice of Appeal from the Judgment with

the United States District Court for the

Eastern istrict of California.

On August 7, 1980, judgment was

affirmed.

A subsequent petition for a rehearing

was filed and denied by this Court on

September 9, 1980.

On October 27, 1980, Petitioner filed

a motion for relief pursuant to Title 28

U.S.C. Section 2255 and Rule 35 of the

Federal Rules of Criminal Procedure in the

U.S. District Court.

A

a ae

6

On February 18, 1981, the U.S. District

Court issued its partial denial of the

motion for relief.

On April 28, 1982, the U.S. District

Court denied the motion for relief.

On May 5S, 1981, Petitioner filed his

Notice of Appeal with the Ninth Circuit

Court of Appeals.

On May 24, 1982, Petitioner's appeal

was denied.

On July 14, 1982, Petitioner's motion

for rehearing was denied.

On August 13, 1982, Petitioner's

motion to vacate mandate was denied.

Among other points, Robert Lee Gray

has maintained that he was represented by

an attorney, James McCabe, who also repre-

sented a Marie Patzig who was arrested

with Gray but released through Mr. McCabe's

efforts. Mr. Gray has further maintained

that Marie Patzig paid Mr. McCabe's legal :

fees. Mr. Gray's premise is that he agreed

aC

7

to a stipulated set of facts which amounted

to a plea of guilty on the advice of

Mr. McCabe without the effective and impar-

tial assistance of independent counsel.

Both the United States District Court

and the Ninth Circuit Court of Appeals has

consistently held that Gray is not entitled

even to a full evidentiary hearing on this

point.

The legal issue here is, of course,

the right to representation free from con-

flict of interest under the Sixth Amendment

to the Constitution of the United States.

See Cuyler v. Sullivan (1980) 446 U.S. 335;

Holloway v. Arkansas (1978) 435 U.S. 475,

481 .

Indeed, the Ninth Circuit Court of

Appeals has recognized that a defendant is

entitled to a full evidentiary hearing on

the issue of a conflict of interest. See

Brown v. United States (1982) 665 F.2d 271.

8

The apparent problem in the instant

case is whether there has been a sufficient

demonstration of the conflict of interest.

It is submitted that the affidavit of

Robert Gray, attached hereto as Exhibit 1

for the Court's convenience, read in light

of the Supreme Court holdings under

Sullivan - Holloway, supra, as more clearly

spelled out in Wood v. Georgia (1980)

450 U.S. 261, meets the threshhold test.

This Court will recall that in Wood v.

Georgia, supra, this Court held as follows:

"Courts and commentations have

recognized the inherent dangers

that arise when a criminal de-

fendant is represented by a

lawyer hired and paid by a third

party..."

"On the record before us, we can-

not be sure whether counsel was

influenced in his basic strategic

decisions by the interests of the

By

_—

9

employer who hired him. If this

was the case, the due process

rights of petitioners were not

respected at the revocation

hearing, or at earlier stages of

the proceedings below. It is,

however, difficult for this court

to determine whether an actual

conflict of interest was present,

especially without the benefit

of briefing and argument on this

issue. Nevertheless, the record

does demonstrate that the possi-™

bility of a conflict of interest

was sufficiently apparent at the

vime of the revocation hearing

to impose upon the court a duty

to inquire further. 18"

Footnote 18 in pertinent part holds

as follows:

"Moreover, Sullivan mandates a

reversai when the trial court

> -

ta

10

has failed to make an inquiry

even though it knows or reason-

ably should know that a partic-

ular conflict exists."

The Supreme Court concluded as

follows:

"For these reasons, we base our

decision in this case on due pro-

cess grounds. The judgment be-

low is vacated and the case

remanded with instructions that

it be returned to the State

Court of Fulton County. That

court should hold a hearing to

determine whether the conflict

of interest that this record

strongly suggests actually

existed at the time of the pro-

bation revocation or earlier.

If the court finds that an

actual conflict of interest

existed at that time, and that

ll

there was no valid waiver of the

right to independent counsel, it

must hold a new revocation hearing

that is untainted by a legal

representative serving conflicting

interests."

This conflict of interest claim was

made by Gray on several occasions to the

trial judge during the motion to vacate

judgment (28 U.S. 2255).

REASONS FOR GRANTING WRIT

Petitioner has not and is not claiming

that multiple representation alone or the

possibility of a conflict of interest vio-

lates the Sixth Amendment to the Constitu-

tion of the United States of America.

However, Petitioner does claim that,

at the very least, he was entitled to a

full evidentiary hearing on his motion to

vacate judgment (<8 U.S. 2255) raising the

issue of conflict of interest.

When an individual is persuaded by an

12

attorney to plead guilty when that attorney

is being paid by a third party who is |

charged with the same crime and subsequently

released, it cannot be seriously argued

that an individual has received the protec-

tion and the rights accorded to his or her

under the Sixth Amendment to the Constitu-

tion of the United States.

This is especially true in a situation

where an individual had maintained his

innocence and the only other individual to

whom the controlled substances could have

belonged was Marie Patzig.

CONCLUSION

It is submitted that Petitioner is

entitled to an evidentiary hearing on his

claim of conflict of interest.

Respectfully submitted,

CARL M. STEIN

13

CERTIFICIATE OF SERVICE

I, Carl M. Stein, a member of the Bar of

this Court and counsel of record for

petitioner, hereby certify that on this

QCT OS cc tomer, 1982, I served

three (3) copies of the foregoing “Petition

For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth

Circuit” upon the Solicitor General, Rex E£.

Lee, Department of Justice, Tenth and

Constitution Avenue, .C. 20530.

14

I, Carl M. Stein, do hereby say

as follows: :

1. That on pa Ms gf

I deposited in a United States Post Office

with first class postage prepaid, and

properly addressed to the United States

Supreme Court, I mailed this Writ of

Certiorari. Said mailing was done at the

Federal Post Offices, 2801 Arden Way,

Sacramento, California _—,

Dated: seihOd

/

Sworn to and subscribed before me on the

above written date.