# Petition — Gray v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0987%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1018 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0987%3A1. Public record. Not legal advice.