Reply Brief — Wells v. Moore

3 ) ——

Ft MUTT, Ws j

iLED

Case No. 00-1938

IN THE j

SUPREME COURT OF THE UNITED: ee

October Term, 2000

LESTER L. WELLS,

Petitioner,

V.

MICHAEL W. MOORE, as Secretary of the

DEPARTMENT OF CORRECTIONS, State of Florida,

Respondent.

WN PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firvn, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360

COUNSEL FOR PETITIONER

A. TABLE OF CONTENTS AND TABLE OF

AUTHORITIES

1. Reply to the State’s Statement of the Case and

Statement of Facts .......---e eee re rer eereees l

2 Argument in Reply to State’s Brief in Opposition .. 3

B. TABLE OF CITED AUTHORITIES

l. Cases

Brookhart v. Janis, 384 U.S. 1, 4, fin. 4, 86 S.Ct. 1245,

1247, 16 L.Ed.2d 314 (1966) ......--- +e eeeeees 6

Forsyth v. Hammond, 166 U.S. 506, 511-13, 17 S.Ct.

665, 41 L.Ed. 1095 (1897) .....-----e eee rere 4

Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969,

41 L.Ed. 2d 242 (1998) ....... eee ee eeereces 5

Martinez v. United States, 630 F.2d 361 (5" Cir. 1980) ... 2

Transamerican Freight Lines v. Brada Miller F reight

Systems, 423 US. 28, 34, 96 S.Ct. 229,

46 L.Ed.2d 169 (1975) ....-- ee ee eee e ere ecee: 5

Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692,

100 S.Ct. L.Ed.2d 140 (1988) ......---+ eee eee 8

2 Statutes, Rules and Constitutional Provisions

28 US.C.§ 1254(1) .....cececeeeeeees Sed neal 3-6

A. REPLY TO THE STATE’S STATEMENT OF THE

CASE AND FACTS

The question presented by Petitioner was: ““Whether a

trial judge has the obligation to disqualify retained counsel

when presented with a conflict of interest which undermines the

integrity of the trial proceedings and the defendant seeks to

waive the conflict.” The state, in its brief in opposition, first

argued that the question Mr. Wells’ presented in his petition

was not properly subject for review by the Court because the

question was not presented to, or passed upon, by the Eleventh

Circuit Court of Appeals.

The issue raised by Petitioner Wells in his petition for

writ of certiorari was raised before and addressed by the federal

district court. The magistrate’s report and recommendation

specifically addressed the issue by noting that the “Petitioner

claims that the public interest in maintaining the integrity of the

judicial process required that the law firm be disqualified from

further representation of petitioner, in spite of his consent, due

l

to the actual conflict of interest.” (A-61).' Petitioner also

argued at the district court level that disqualification of

Petitioner’s lawyer was necessary in order to protect public

confidence in the justice system. (A-62). The same issue was

raised again in the Eleventh Circuit Court of Appeals. The

issue was set out in the Reply Bnef of Appellantan support of

the argument that the actual Martinez’ conflict of interest

inherent in the case could not have been waived by Petitioner

Wells, for such a conflict of interest undermines the integrity of

th< judicial process and is not subject to waiver analysis. (A2-

6-9).

Next, the state argued that since both the state court and

the lower federal courts resolved the question of whether an

actual conflict of interest existed against the Petitioner, the

' The symbol! “A” followed by the appropriate number represents a

citation to materials contained in the appendix to the Petition for Writ of Certiorari.

2? Martinez v. United States, 630 F.2d 361 (5 Cir. 1980).

> The symbol “A2" followed by a number represents a citation to the

materials contained in the attached appendix.

2

|

Court was not in a position to review those previously made

factual determinations. The facts are not contested, only the

legal conclusion drawn on those undisputed facts. The issue of

an actual conflict of interest is a mixed question of law and fact.

The Supreme Court of the United States may review the

historical facts of record to reach the ical and material

issues of law.

B. ARGUMENT IN REPLY TO STATE’S BRIEF IN

OPPOSITION

1. The question presented for review in the

Petition for Writ of Certiorari was presented to the district

court and the court of appeals; the Court has the discretion

to review the question presented pursuant to 28 U.S.C. §

1254(1).

Petitioner raised in the district court and in the court of

appeals the issue of whether a trial court has the obligation to

disqualify retained counsel when presented with a conflict of

interest which undermines the integrity of the trial proceedings,

3

as well as the public reputation of the judicial process, even if

the defendant attempts to waive such a conflict. The

magistrate, in his report and recommendation, addressed the

issue of the public interest in the integrity of the judicial

process. (A-61). In the report and recommendation, the

magistrate noted that Petitioner argued that the trial court

should have recognized that an actual conflict of interest existed

and declined to accept the proposed waiver (A-62). That

argument is the same argument Petitioner presented to the Court

in his petition for writ of certiorari.

The fact that the court of appeals did not specifically

address the issue in its opinion is not a ground requiring the

Court to deny certiorari. Congress has provided in 28 U.S.C. §

1254(1), that the Supreme Court may review cases in the

federal courts of appeals by “wnit of certiorari granted upon the

petition of any party to any civil or criminal case, before or after

rendition of judgment or decree.” The jurisdiction thus granted

is plenary in nature. See Forsyth v. Hammond, 166 U.S. 506,

511-13, 17 S.Ct. 665, 41 L.Ed. 1095 (1897). It extends to “any

civil or criminal case” in the courts of appeals. There are no

limitations as to the parties, the status of the case, or the amount

in controversy. Nor are there any restrictions as to the matter at

issue or the nature or form of the decision below. Even the fact

that a court of appeals has ruled that its opinion not be

published is no bar to Supreme Court review. See

Transamerican Freight Lines v. Brada Miller Freight Systems,

423 U.S. 28, 34, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975).

That the court of appeals denied a certificate of

appealability as to this issue, (A-7), is not a bar to the Court

exercising-its discretion to grant certiorari review. Hohn v.

United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed. 2d 242

(1998), [holding that the Court has jurisdiction under § 1254(1)

to review denials of applications for certificates of appealability

by a circuit judge or a court of appeals panel]. Therefore, even

though the Eleventh Circuit Court of Appeals did not

specifically address the question presented in the petition for

writ of certiorari, the Court has the discretion under § 1254(1)

to grant review.

The second claim by the Respondent/state in its brief in

opposition was that the question presented by Petitioner Wells

required the Court to engage in a fact-finding analysis in order

to resolve the issue. In a federal habeas challenge to a state

criminal judgment, a state court conclusion that counsel did not

labor under a conflict of interest is not a finding of fact binding

on the federal court to the extent stated by 28 U.S.C. § 2254(d).

Ineffective assistance of counsel is not a question of “basic,

primary, or historical fac[t],” Townsend v. Sain, 372 U.S. 293,

309, n. 6, 83 S.Ct. 745, 755, n. 6, 9 L.Ed.2d 770 (1963).

“Whether multiple representation in a particular case gave rise

to a conflict of interest, [ ] is a mixed question of law and fact.

See Cuyler v. Sullivan, 446 U:S., at 342, 100 S.Ct., at 1714.”

Strickland v. Washington, 466 U.S. 668, 698; 104 S.Ct. 2052,

2070 (1984). While the Court may not be necessarily well

suited to make factual determinations generally, as argued by

the state, “[w]hen constitutional nghts turn on the resolution of

a factual dispute we are duty bound to make an independent

examination of the evidence in the record.” Brookhart v. Janis,

384 U.S. 1, 4, fin. 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314

(1966). Petitioner Wells’ constitutional right to conflict-free

counsel is at issue in this proceeding.

The factual basis for finding that an actual conflict of

interest existed below is set out in the Petition for Wnt of

Certiorari, and the Petitioner’s attached appendix, sufficiently

for the Court to make the preliminary decision to grant

certiorari review. A more complete version of the facts may be

supplied in a brief on the merits and supporting appendix.

Importantly, the facts surrounding the conflict issue are not in

dispute. There is no dispute that Petitioner’s lawyer represented

him at the same time the same law firm represented the

codefendant, a dismissed codefendant, and a state witness

codefendant. The legal question is whether, upon the basis of

the undisputed facts, an actual conflict of interest existed.

In Petitioner Wells’ case, the undisputed facts are far

more troubling than the facts in Wheat v. United States, 486

U.S. 153, 108 S.Ct. 1692, 100 S.Ct. L.Ed.2d 140 (1988). In

Wheat, the district court was presented with an attorney who

wished to represent three conspirators of varying stature in a

complex drug distribution scheme. The government intended

to call one of the potential clients, Bravo, as a witness for the

prosecution at petitioner’s trial. “The Government might

readily have tied certain deliveries of marijuana by Bravo to

petitioner, necessitating vigorous cross-examination of Bravo

by petitioner’s counsel.” /d. at 163; 108 S.Ct. at 1699. The

Court concluded that the attorney, because of his prior

representation of Bravo, would have been unable to ethically

provide that cross examination. Jd.

Petitioner Wells’ lawyer represented him, a man he

“knew was innocent.” (R2-18).‘ Mr. Wells lawyer

simultaneously represented Jerry Wayne Week: who (a)

admitted his guilt to a fellow inmate, (R2-18) and, (b) was

identified by two other eyewitnesses, ““Bluegill’’ McCurdy and

Joseph Wells. (R2-20). The same law firm simultaneously

represented Anthony Weeks, brother of the codefendant, Jerry

Wayne Weeks, who the firm was representing simultaneously

in the Lester Wells tnal, and convicted by a jury, but later was

discharged on appeal. (A-15). Anthony Weeks was to be

called as a witness for the state against Petitioner Wells. The

firm also simultaneously represented Wilbur Weeks, whom

eyewitness Joseph Wells (no relation to Petitioner) placed in the

boat headed toward the crime scene. (R2-20). The conflict was

present on this issue because counsel failed to cross examine

* Record references to Weeks v. Moore, Eleventh Cirguit Case No. 00-

12781-HH.

the eyewitnesses in a manner that implicated Wilbur Weeks, but

which would have provided existing exculpatory evidence for

Petitioner Wells.

Petitioner Wells requests the Court grant certiorari in

order to extend the analysis begun in the Wheat decision. Tnial

courts need guidance deciding when, if at all, they should

exercise their inherent discretion to disqualify counsel, even

against the purported wishes of the defendant. If allowing the

representation would result in inadequate representation or

affect the integrity of the trial in a negative way, a conflict of

interest must result in disqualification of counsel. For this

reason, the Court should grant review.

ROBERT AUGUSTUS

Robert Augustus Harper Law Pirm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

Fl Bar No. 127600/GA Bar No. 328360

COUNSEL FOR PETITIONER

10

Case No. 00-1938

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2000

LESTER L. WELLS,

Petitioner,

¥.

MICHAEL W. MOORE, as Secretary of the

DEPARTMENT OF CORRECTIONS, State of Florida,

Respondent.

APPENDIX TO REPLY BRIEF IN OPPOSITION

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360 |

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

Document(s) Page

Reply Bnef of Appellant

United States Court of Appeals

For the Eleventh Circuit

Docket No. 0-1278/H

ee. | | Fe re ne A2-1

il

Docket No. 00-12781H

IN THE

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

LESTER L. WELLS,

Appellant,

V. Habeas Corpus Appeal

from the Norther -

MICHAEL W. MOORE, as Distnct of Flonda

Secretary, Flonda

Department of Corrections

Appellee.

REPLY BRIEF OF APPELLANT

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firm, P.A.

325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

FL Bar No. 127600/GA Bar No. 328360

STEVEN BRIAN WHITTINGTON

Robert Augustus Harper Law Firm, P.A.

FL Bar No. 0055972

Counsel for Appellant WELLS

A2-1

A. TITLE PAGE ...ss4030 es

B. TABLE OF CONTENTS .....

C. TABLE OF CITATIONS .....

l COU cis essaskee

y errr ere

a i Peter er ee

D.

E. CERTIFICATE OF SERVICE

A2-2

B. TABLE OF CONTENTS

2. e S26 2-72: 6) 6.4 2a Se Oe Oe Se

“ee oe ib El ~ h e ee e S e

<6 Se 2 -e 6S 256 Se -S GSS OC

a ee Oe ee ee Oe ee Oe ee eee

ARGUMENTS AND CITATIONS OF AUTHORITY. .1

C. TABLE OF CITATIONS

1. Cases Page

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25

L.Ed.2d 747 (1970), cert. denied, 482 U.S.916, 107 S.Ct. 3190,

ER PP re rer rer er eae 4

In re Paradyne Corp., 803 F.2d 604 (11th Cir. 1986) ..... 3

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461

ee ie eae cae 6nd. o Kb Akan AK eee 5

Lightbourne v..Dugger, 829 F.2d 1012, 1023

7 eo Se ee err ner ee eee 2

Martinez v. United States, 630 F.2d 361 (Sth Cir. 1980)1, 2, 5

Porter v. Singletary, 14 F.3d 554, 561 (11th Cir. 1994) ... 2

Stephens v. United States, 595 F.2d 1066, 1070

RE eee ae eer 2

United States v. Akinseye, 802 F.2d 740 (4th Cir.1986) ... 4

United States v. Cirrincione, 780 F.2d 620 (7th Cir.1985) . 5

United States v. Diozzi, 807 F.2d 10 (1st Cir. 1986) ...... 3~

United States v. Dressel, 742 F.2d 1256 (10th Cir. 1984) .. 3

United States v. Flanagan, 679 F.2d 1072 (3d Cir.1982), rev'd

on other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d

RS aa ane ga Rg ae a 4

United States v. Garcia, 517 F.2d 272 (Sth Cir. 1975) .... 1

United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977),

cert. denied, 435 U.S. 969, 98 S.Ct. 1607,

Se Ee Bre ee bos nas vaca ates 2

United States v. Wheat, 813 F.2d 1399, 1403

EE a ae oe eee 2

United States v. Williams, 809 F.2d 1072 (Sth Cir.1987) .. 4

2. Statutes

3. Other :

_ 8 RE ee ree rrr Pa, 2

is Fe, FT os or ees s ces OAS oases 3

ee 3 a Ro A rr res re 3

A2-4

D. ARGUMENTS AND CITATIONS OF

AUTHORITY

1. The actual Martinez’ conflict of interest

inherent in the case of Petitioner Wells could not have been

waived by the Petitioner, for such a conflict of interest

undermines the integrity of the judicial process and is not

subject to waiver analysis.

The report and recommendation adopted by the district

court addressed solely whether a Garcia* conflict of interest

arose and whether Petitioner Wells had waived the Garcia

conflict. The court below did not distinguish the fundamental

difference between Garcia and Martinez conflict. A Garcia

conflict raises antagonistic defenses and is subject to waiver.

A Martinez conflict of interest, under which counsel represents

a criminal defendant and a witness for the prosecution

‘Martinez v. United States, 630 F.2d 361 (5th Cir. 1980).

®United States v. Garcia, 517 F.2d 272 (Sth Cir. 1975).

A2-5

simultaneously in the same proceeding, cannot be waived by the

defendant. The integrity of the judicial process is undermined

by the joint representation because the defense counsel controls

the content of the prosecution’s case by advising his

prosecution witness/client to refuse to testify. The seriousness

of this type of dual representation is heightened, because an

attorney “inherently encounters divided loyalties.” Porter v.

Singletary, 14 F.3d 554, 561 (11th Cir. 1994); Lightbourne v.

Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987); Stephens v.

United States, 595 F.2d 1066, 1070 (Sth Cir. 1979). Not only

did Petitioner Wells’ attorney represent a witness who was

called by the state (Anthony Weeks), counsel also represented

a witness for the state whom they were advising to exercise

Fifth Amendment nghts (Jerry Weeks). ;

Because the conflicts are often subtle, it is not enough

for a judge to rely upon counsel, who may not be totally

The state's witness Anthony Weeks was a current client of cross4

examining counsel.

A2-6

disinterested. United States v. Wheat, 813 F.2d 1399, 1403 (9th

Cir. 1987) [quoting United States v. Lawriw, 568 F.2d 98, 104

(8th Cir. 1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56

L.Ed. 2d 60 (1978)]. The lawyer is operating under an actual

conflict of interest, and the lawyer is not in a position to advise

a defendant of what to waive under those conditions.

The Eleventh Circuit Court of Appeals has effectively

summarized: the right to counsel of one’s choice is not

absolute. The nght does not override the broader societal

interests in the effective administration of justice ... or in the

maintenance of “public confidence in the integrity of our legal

system.” ... But the mght yields only to broader societal

interests, and it cannot be denied by a court unilaterally as a

means to protect other Sixth Amendment nghts of a defendant.

In re Paradyne Corp., 803 F.2d 604, 611 (11th Cir. 1986) n. 16

(citations omitted). See also United States v. Diozzi, 807 F.2d

10, 12 (1st Cir. 1986) (district court has some discretion to limit

A2-7

the exercise of the mght to counsel of choice when insistence

upon it would interfere with the orderly administration of

justice). The court may have to reach out and protect the

defendants from themselves when, under all the circumstances,

the court finds that the balance of the interests involved require

disqualification. See United States v. Dressel, 742 F.2d 1256,

1258 (10th Cir. 1984): “Notwithstanding the trial court’s

compliance with all of the suggested procedures to ensure that

any waiver is fully informed and voluntary, under some

circumstances ‘even full disclosure and consent ... may not be

an adequate protection.”” (Quoting Fed.R.Crim.P. 44(c)

advisory committee’s note).

Petitioner Wells’ federal due process mght . a

fundamentally fair trial was violated by the state court system

that failed to disclose and explain the actual conflict of interest

under which the representing law firm labored. The state court

system further violated Petitioner Wells’ right to conflict-free

A2-8

counsel through the failure of the trial court to take remedial

action by disqualifying counsel from the further representation

of Petitioner Wells. The public interest in a fundamentally fair

proceeding outweighed the nght of Petitioner Wells to the

counsel of his choice. Assuming arguendo, that Petitioner

Wells, in fact, waived a conflict, he could not fully understand

Or appreciate what he was waiving because counsel and the

state court did not fully understand the differences sufficiently

to explain the law and obtain a valid waiver.

A waiver of the right to counsel must not only be

voluntary, but must also be knowing and intelligent, with

sufficient awareness of the relevant circumstances and likely

consequences. United States v. Akinseye, 802 F.2d 740, 745

(4th Cir.1986) [quoting Brady v. United States, 397 U.S. 742,

748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)], cert. denied,

482 U.S.916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987). If the

trial judge specifically admonishes the defendants of the

A2-9

potential for future conflict and the defendants knowingly,

intelligently and voluntarily waive the right of separate

representation, the law requires nothing more, United States v.

Williams, 809 F.2d 1072, 1085 (Sth Cir.1987), and the waiver

will insulate a conviction from later attack. United States v.

Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), rev'd on other

grounds, 465 U.S. 259, 104S.Ct. 1051, 79 L.Ed.2d 288 (1984).

The standard for measuring an effective waiver of a

constitutional right such as effective assistance of counsel is

that a waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege. The determination

of whether there has been an intelligent waiver of the nght to

counsel must depend, in each case, upon the particular facts and

circumstances surrounding that case, including the background,

experience, and conduct of the accused. United States v.

Cirrincione, 780 F.2d 620, 624 (7th Cir. 1985) [quoting Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.

1461 (1938)].

Under the facts of record in this case, no effective

waiver of the Martinez conflict occurred, nor could a waiver

have been tendered by Petitioner Wells because he did not have

a full understanding of the nature of the conflict. Neither the

state court judge, nor counsel, had an adequate understanding

of the issue. The judge only explained a potential conflict of

defenses. Even the Magistrate judge did not fully appreciate the

differences, as he discussed the issue of waiver under similar

considerations. If a court has the authority to disqualify the

counsel of choice despite and contrary to the consent or

objection of the defendant, then the tnal court bears the

responsibility to disqualify counsel of choice despite the

purported consent of the defendant to a conflict of interest.

Because Petitioner was represented by counsel who

simultaneously represented a witness for the state, a witness

who refused to testify, a codefendant, and the

A2-11

defendant/petitioner Wells, an actual conflict of interest existed.

The conflict of interest was not waivable. Any purported

waiver was constitutionally insufficient. Relief should be

granted.

A2-12

E. CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the

Pi tka “deaet ok EA OUR . i wt

j foregoing instrument has been furnished to:

' Douglas T. Squire

Assistant Attorney General

: Department of Legal Affairs

PLO1, The Capitol

Tallahassee, Florida 32399-1050

; by hand/mail delivery this _09th_ day of October, 2000.

Respectfully submitted,

/s/ Robert Ai r

ROBERT AUGUSTUS HARPER

Robert Augustus Harper Law Firm, P.A.

; 325 West Park Avenue

Tallahassee, Florida 32301-1413

(850) 224-5900/fax (850) 224-9800

i FL Bar No. 127600/GA Bar No. 328360

STEVEN BRIAN WHITTINGTON

Robert Augustus Harper Law Firm, P.A.

FL Bar No. 0055972

Counsel for Appellant WELLS

ne: Lester L. Wells