# Petition for Writ of Certiorari — Kurtz v. Ayers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1974%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 949 ## Text Supreme Court, U.S. FILE® nNoO3 23 ZAUS 122003 | Jn The Supreme Court of the Anited States ¢ ROBERT M. KURTZ, Petitioner, V. ROBERT AYERS, WARDEN, Respondent. ¢ On Petition For Writ Of Certiorari To The Court Of Appeals For The Ninth Circuit ¢ PETITION FOR WRIT OF CERTIORARI AND APPENDIX VOLUME I, PAGES A1-N4 ¢ WILLIAM E. GILG, ESQ. Attorney at Law, #151991 305 San Bruno Avenue West ~ San Bruno, CA 94066 (650) 871-8647 (650) 873-3168 (fax) Attorney for Petitioner COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 - QUESTIONS PRESENTED A. REGARDING GROUNDS #1 TO #3 OF THE SECOND-AMENDED FEDERAL PETITION . Is it a defense attorney’s prerogative to reveal to the police or jury attorney-client communications (such as the location of the victim’s body and his client’s initial, since abandoned, explanation), or does the Sixth Amendment’s guarantee of effective assis- tance of counsel require the attorney to first obtain a knowing and intelligent waiver from his client? . Where an attorney has betrayed material attorney- client secrets to the police and the jury, and thereby actually chilled attorney-client communications by demonstrating to the client that what he discloses is not treated as confidential, should the Strickland ineffective counsel standard of review apply or a less error-tolerant standard? B. REGARDING GROUNDS #5 TO #8 OF THE SECOND-AMENDED FEDERAL PETITION . Was the Strickland prejudice standard for claims of ineffective counsel properly applied where a district court denied such claims by repeatedly observing that the jury “could still have found Petitioner guilty” even if defense counsel had performed com- petently? il QUESTIONS PRESENTED - Continued C. REGARDING GROUNDS #1 TO #3 OF THE SECOND-AMENDED FEDERAL PETITION . Where a defense attorney has conceded that he provided ineffective assistance of counsel on three issues, and where he has declined to respond to a Court’s request for an explanation of his conduct on other allegations of ineffective counsel, did a district court error in assuming trial counsel’s actions and omissions were deliberate and awarding them stra- tegic deference under Strickland? . Where the four issues described above were disposi- tive of Petitioner’s claims and squarely presented by an application for a Certificate of Appealability un- der 28 U.S.C. section 2253, have the lower courts erred in denying such certification? iii TABLE OF CONTENTS QUESTIONS PRESENTED.............cccccccsscssscececseees A. REGARDING GROUNDS #1 TO #3 OF THE SECOND-AMENDED FEDERAL PETITION .. B. REGARDING GROUNDS #5 TO #8 OF THE SECOND-AMENDED FEDEPAL PETITION .. C. REGARDING GROUNDS #1 TO #3 OF THE SECOND-AMENDED PETITION. ..............c00005. TABLE OF AUTHORITIBS ..............ccesccsesesesssecsaseees PRP MNe SPUN RMEEURIEN ocsccsscsvscssevsvsssescsssensvesesveseossscesens Se MTNE MEUEEP OY oxscacnsscesensiustconsvsnsssasisnsesesvovsvasevensees CONSTITUTIONAL PROVISIONS AND STATUTES _ INVOLVED IN THIS CASE ue. cccccccscsscsceesseeeseseees STATEMENT OF THE CASE .........cccccccccececcceccecececeeeee, 1. Pertinent Details Of The Crime.................. 2. Petitioner’s Attorney Tells The Police Where They Can Find Susan’s Body............ D. JURISDICTIONAL FACTS RELATED TO QUESTIONS PRESENTED #1 AND #2............ E. JURISDICTIONAL FACTS RELATED TO QUESTIONS PRESENTED #3....0.......cccccseeceee. F. JURISDICTIONAL FACTS RELATED TO QUESTIONS PRESENTED #4....0.0....0.cccccscsceee. G. JURISDICTIONAL FACTS RELATED TO QUESTIONS PRESENTED 45 .....0.........cceeee. Page REASONS FOR GRANTING THE WRIT..................... 15 IIIT 3 oo apnea cle aantndeaen aaa aaeiNeendEKE 15 ic aa 19 IIIT <> casos nos cae canbe tse su esi niaiam bien tan 25 SII TIITE . « snce cudiessaaeaadeeeuaeasianenanmbeenmatanniadns 26 ET eT EN OT Oe Te meee 27 PATER reer een Nene oan EE one Way wean vee 29 CPI wicencecsecssctovens sddukdnliicialaaalediakilaliaibeuamnides 30 APPENDIX A. NINTH CIRCUIT’S 3/18/03 ORDER DENY- I aaa cia alee ed a a cea Al B. DISTRICT COURT'S 9/17/02 ORDER DENY- BE Fi PE nin: dantiesseuiuensibaliccanis miabester atin Bl C. DISTRICT COURT'S 9/13/02 ORDER DENY- ING APPLICATION FOR ENLARGEMENT OF TIME RE REQUEST FOR COA................ Cl D. DISTRICT COURT'S 8/14/02 JUDGMENT Be GE EE cain nukesctcandgcabavecenniowumesesaionas D1 E. DISTRICT COURT'S 8/13/02 ORDER RE- GARDING REPORT AND RECOMMENDA- IEEE sicxccieads vehontoninetainiaddadcasadbecssencsmeinicesy aadee: El F. MAGISTRATE JUDGE’S 8/8/01 REPORT AND RECOMMENDATION......................00085 F1. G. CALIFORNIA SUPREME COURT’S 7/28/99 ORDER DENYING STATE HABEAS COR- Pe SEE deicshiinstucicdavcceacenndensnennemcmoinin Gl iv TABLE OF CONTENTS - Continued TABLE OF CONTENTS - Continued Page CALIFORNIA SUPREME COURT’S 6/18/97 ORDER DENYING PETITION FOR RE- VIEW RE STATE HABEAS CORPUS PETI- TAAITT ssitiieoonvnoeeinenmialidbinainaeiaiiinnoalameadedite, H1 CALIFORNIA SUPREME COURT’S 8/30/95 ORDER DENYING PETITION FOR RE- VIEW RE DIRECT APPEAL...............00:..c0000. I1 CALIFORNIA COURT OF APPEAL’S 5/31/95 Fer INT cctsindacesitidvenscesveisiebnbaatammuaauiali J1 NINTH CIRCUIT’S 5/14/03 DENIAL OF PETITION FOR REHEARING AND SUG- GESTION FOR REHEARING EN BANC ...... K1 PETITIONER'S 8/6/99 SECOND-AMENDED FEDERAL PETITION FOR WRIT OF HA- RE GE Si inteneiecisccissbaanuadietialiahds Ll PETITIONER'S 4/28/97 DECLARATION IN SUPPORT OF SECOND-AMENDED FED- ERAL PETITION FOR WRIT OF HABEAS CII SINE scl vesietsntisenninetonennaee M1 JERRY HAMILTON'S 4/14/97 DECLARATION IN SUPPORT OF SECOND-AMENDED FED- ERAL PETITION FOR WRIT OF HABEAS CE a vingunierissgnecaniiamnninaeee Nl PETITIONER'S 11/13/01 OBJECTIONS TO MAGISTRATE’S JUDGE’S REPORT AND RECOMMENDATION ............::ccccccsssssccceseees Ol TABLE OF CONTENTS - Continued Page P. PETITIONER'S 9/9/02 NOTICE OF APPEAL FROM DISTRICT COURTS JUDGMENT DENYING SECOND-AMENDED FEDERAL PETITION FOR WRIT OF HABEAS COR- FATED oxnersescavevncssesuennassenenscesbeonMieueresesaanenbnasenes Pl Q. PETITIONER'S 10/21/02 NINTH CIRCUIT TT ES Pie Ba GR cc ceescanescssvnsesocsvsennaseontions Ql R. PETITIONER'S 4/1/03 PETITION FOR REHEAR- ING AND SUGGESTION FOR REHEARING EN BANC IN NINTH CIRCUIT.................cecceeeees Rl S. PETITIONER'S 4/15/03 CITATION TO SUPPLE- MENTAL AUTHORITIES RE PETITION FOR REHEARING IN NINTH CIRCUIT............... Sl Vii TABLE OF AUTHORITIES Page CASES Barefoot v. Estelle, 463 U.S. 880, 77 L.Ed.2d 1090, LOS S.Ct. SSBS (1GBB).............cccecccossccsccsssssecessesseccsseccee, 30 Coleman v. Thompson, 501 U:S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991)... ccccccssseceseecccceeeeeees 10 Fischer v. United States, 425 U.S. 391, 48 L.Ed.2d hy rs, BEE Ci cecnsinssnroesenkesesesecenteceensens 15, 16, 25 Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, I BPI Gi crticicsedeaMbaktasinccicctechsesenceaisienceess 14, 29 Maness v. Meyer, 419 U.S. 449, 42 L.Ed.2d 574, 95 ate We Ce eiicnviccsndeniiicdsctacatisncctesaacesn ee 1++26 McClure v. Thompson, 323 F.3d 1233 (9th Cir. ERA SNe NMR CRIA 14, 20, 26, 27 Miller-El v. Cockrell, 537 U.S. 322, 154 L.Ed.2d SSA, TFS T.CE, LOBP CIIOG) nccccccccerccsccccccveccecccseees 1, 19, 30 Morris v. Slappy, 461 U.S. 1, 75 L.Ed.2d 610, 103 Fs RI ccacacecteitenisdenitinncteemasi tt tools se 10 Nix v. Whiteside, 475 U.S. 157, 89 L.Ed.2d 123, 106 tN em AA: 16, 30 Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984) ooo... 8, 14, 18, 25, 29 Upjohn v. United States, 449 U.S. 383, 66 L.Ed.2d lp, BR Cees GOT CED vencveiscsssecnsnnncconesenntataeiaesaens 15, 16 United States v. Zolin, 491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 2619 (1989) ooo. ccccccccccecececeeees 15, 16, 25 viii TABLE OF AUTHORITIES -— Continued Page Weatherford v. Bursey, 429 U.S. 545, 51 L.Ed.2d 30, Se Res GE GENT Piviiceinnnictsinnanhcntantieanicctiaeneson 15, 16, 25 Wiggins v. Smith, ___ U.S. ____, ___ L.Ed.2d ___, 123 Sens SEY UII os dhs ddcticeninunisiadennendaiaanmnseuniddadeessed 18 STATUTE es Re ee ae Oe i cikcceccbsacckeececdsvenbucccctdbdevinsecdiees 17 COUR. BOVE GS) & Gd cocorsesnecccseccnscsscssceuvened heckainneaiacaasonneniions 18 Ss FEY UF GIIEE ctsennisiriicenacesnsesekinadiniaenemenctehieeannieniemnniente 18 Se ee i iintntcinsasecmeenepinatinsammmmmenis 18 ee a ee otiacnieictnnestninceenensunieninanines 11 ee Te Ss OF ciniwtintassesiecreininenicaienccaincas a Tae Oe I itnntenesinisnisiinntabiibiininbinate 3, 30 ee ee ls FE eiterancintvinientniniesens emnaiaeaiiaida 3 OTHER AUTHORITIES ID isshicincsieicnnniesilcsinanibiscanenuiansteniaedatdiiaiiaaniaumaie 26 SE SION ciscsnciticischansdhisnncdkaidcnmmeneneineeiobemnennel passim Fourteenth Amendment..................cccesceccesseseceeseeserenes SF ST Wot ccttideisnisinsnatectiaentaentteeaeindaaenieeaail 14 ENE II SitE acces Jonstiscedidctiaeinensacniciannimacbiednembinenna 13, 15 FR IS RI Sh iicnisicnincencancmvemninennbncesessibinsenientinnidatiinn 17 ABA Ethical Consideration EC4-4 0.0.0.0... eeeeeeeeeeeees 17 ABA Model Rule of Professional Conduct (1983), UMD TAF sischcsbdacnaidelbnntaindudenacdlananiiaidiasiaanstiaadiniilaaianbiie 17 ix TABLE OF AUTHORITIES - Continued Page Jefferson’s California Evidence Benchbook (3rd Ed. I eT cuiehinideieaendeadibtienninlidladtaiierer re 18 Lexis-Nexis (2003) California Criminal Defense Practice, § 1.13(2)(b), p. 1-44.11..........cccccccccocsssscseoccooeee, 18 Stern, Gressman, et al., Supreme Court Practice (7th Ed. 1993) § 4.6, pp. 176-177 ......ccccccccccccccccceccceseceee. 26 PRAYER FOR RELIEF Petitioner requests an order reversing the Ninth Circuit’s denial of Petitioner’s application for a Certificate of Appealability. (See Miller-El v. Cockrell, 537 U.S. 322, 154 L.Ed.2d 931, 123 S.Ct. 1029, U.S. cert. den., 155 L.Ed.2d 194 (2003) [providing similar relief].) OPINIONS BELOW On May 14, 2003, the Ninth Circuit denied the Peti- tion for Rehearing and Suggestion for Rehearing En Banc. (App. K.) On March 18, 2003, the Ninth Circuit affirmed the judgment of the U.S. District Court denying a Certificate of Appealability (“COA”) in this case. (App. A.) : On September 17, 2002, the U.S. District Court for the Eastern District of California, filed an order denying Petitioner’s Request for a COA. (App. B.) Judgment was entered in the U.S. District Court on August 14, 2002, denying the Second-Amended Federal Petition for Habeas Corpus and adopting the Magistrate Judge’s Report and Recommendation. (App. D.) The Magistrate Judge issued her Report and Recom- mendation on August 8, 2001. (App. F.) _ The California Supreme Court in two unpublished decisions denied habeas petitions filed by Petitioner on July 28, 1999 and on June 18, 1997. (App. G & App. H.) In an unpublished Opinion dated August 30, 1995, the California Supreme Court denied Petitioner’s direct appeal. (App. I.) 2 In an unpublished Opinion dated May 31, 1995, the California Court of Appeal, Fifth Appellate District, denied Petitioner’s direct appeal. (App. J.) and GROUNDS FOR JURISDICTION The Ninth Circuit denied the Petition for Rehearing Suggestion for Rehearing En Banc on May 14, 2003. (App. K.) This Petition for Writ of Certiorari is filed within 90 days of that Order. Petitioner invokes the jurisdiction of this Court under 28 U.S.C. section 1254 on the grounds that his rights under the Sixth and Fourteenth Amendments to the effective assistance of counsel were violated. US. US. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED IN THIS CASE CONSTITUTION, AMENDMENT VI: 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 ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. CONSTITUTION, AMENDMENT XIV, Sec. 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or en- force any law which shall abridge the privileges or immunities of citizens of the United States; ; 3 nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 28 U.S.C. SECTION 2253: (a) In a habeas corpus proceeding or a proceed- ing under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a fi- nal order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pend- ing removal proceedings. (c(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — (A) the final order in a habeas corpus proceeding in which the detention com- plained of arises out of a process issued by a State court; or (B) the final order in a proceeding un- der section 2255. (2) A certificate of appealability may issue un- der paragraph (1) only if the applicant has made a substantial showing of the denial of a constitu- tional right. (3) The certificate of appealabilty under para- graph (1) shall indicate which specific issue or is- sues satisfy the showing required by paragraph (2). 4 STATEMENT OF THE CASE 1. Pertinent Details Of The Crime. A description of the facts presented to the jury can be found in the Magistrate Judge’s Report and Recommenda- tion. (App. F.) Briefly stated, the State’s theory was that Petitioner had killed his wife, Susan, after she read Petitioner’s “Fourth-Step” Alcohol Anonymous (“AA”) Journal. In that journal Petitioner had, with all the frankness demanded of him by AA’s “Twelve-Step” program, described his intrave- nous drug use and how he had been intimate with prosti- tutes while married to Susan. The State’s theory was that Petitioner, a short time after he learned that Susan had read his journal, premedi- tated the crime to preempt her from divorcing him, taking him to the cleaners in divorce court, estranging him from their two-year-old son, and revealing his behavior to the community. (App. J, p. 13 [California Court of Appeal’s Opinion].) The defense theory was that Susan had attacked Petitioner, enraged by his infidelity. Petitioner testified, admitting that he killed his wife, but explaining that it had occurred accidentally as he attempted to restrain her and defend himself. Susan outweighed Petitioner by 100 pounds. (RT 722, 732-733, 840-842.) Petitioner testified that Susan attacked him while he was occupied with installing a computer for her and that the computer cables he had draped around his neck became tangled amidst the two as they struggled. He said he grabbed a cord that had looped around her neck and held onto it until she was subdued. To his shock, when he released his grip, he found that she was dead. The next day, Petitioner was seen walking with a noticeable limp and had a deep bite mark on his hand. (RT 728-730, 801- 802.) The State argued that the circumstance of ligature strangulation, coupled with a string of lies Petitioner told after the crime, the concealment of the body, and a remark Petitioner had made some months before that he some- times thought it would be better if his wife were dead, suggested premeditation. The prosecution ridiculed the idea that Susan, who appeared to be non-confrontational on the evidence before the jury, and was having a difficult pregnancy, would assault Petitioner. (RT 900(16-21), 943(13-14), 944(8-17) [D.A.’s summation].) The underlying pertinent facts are that on January 2, 1993, Petitioner went to an AA meeting. Petitioner’s sponsor, Reed Harris, noticed that Petitioner was agitated that evening. Petitioner revealed to Harris that Susan had found his Fourth-Step notes. On Thursday, January 7, 1993, Petitioner reported his wife missing. Petitioner claimed his wife had left their home at 9:30 PM that evening. Her car was found at their business. Susan’s coat and the keys to the store were inside. Susan’s purse, some cash, and a computer printer were missing. The back door appeared to have been tampered with. Police officers filed a missing persons report. On Monday, January 11, 1993, Petitioner went out to dinner with his mother and stepfather, Kathy and Jerry Hamilton. During dinner, Petitioner told them that Susan was dead. Petitioner claimed Susan committed suicide in the garage. Petitioner arranged to turn himself in to his attorney the following morning. Later that same evening he told his AA sponsor, Reed Harris, about Susan’s suicide. 6 2. Petitioner’s Attorney Tells The Police Where They Can Find Susan’s Body. On Tuesday morn g, January 12, 1993, the police executed a search warrai:: at Petitioner’s house. Petitioner came home during the search and was allowed to get a change of clothes and to leave. Petitioner went from his house to the office of William Smith, once the District Attorney of Fresno County, then in private practice as a defense attorney. Smith had been retained and the ap- pointment set for this meeting on the preceding day. Petitioner, Smith, and Jerry Hamilton (Petitioner’s stepfather) sat down in Smith’s office to discuss Peti- tioner’s predicament and to prepare Petitioner for a voluntary surrender to the authorities later that morning. Shortly after they sat down, Smith-called Petitioner’s house. He spoke to a detective, inquiring if anything had been found at Petitioner’s house. The detective said no. Smith ended the conversation, only to call back a short time later. Again Smith asked if they had found anything inculpatory. The detective again said no. Placing his hand over the receiver, Smith asked, “should we tell them?” (App. M & App. N [Declarations of Petitioner and Jerry Hamilton].) As for what happened next, Petitioner pre- sented to the District Court two declarations, his own and that of his stepfather, Jerry Hamilton. Hamilton heard Smith ask the question, but did not hear any response from Petitioner. (App. N.) Petitioner’s declaration indicates he did not respond. (App. M.) Both declarations make clear that there was no advance warning or consultation on the wisdom of disclosing the body’s location, just the question, and a split second later, the disclosure. Smith told the ' detective to look in a particular closet in the house. (Jbid.) At the time of the disclosure, the search team had left 7 Petitioner’s house, but for a single man whose sole remain- ing intention was to erase Petitioner’s computer files. Petitioner had related this information to Smith before Smith made the calls to the house. As the volice would later admit, they had overlooked the body in their search of the residence. The body was secreted in a closet, wrapped in plastic, and hidden beneath parcels. The body’s odor was masked by air fresheners. (CT 126-127; RT 493-498.) In proceedings before the U.S. District Court, Respondent cited no evidence which would have supported an inference that the police would have discovered the body without guidance from Smith. D. JURISDICTIONAL FACTS RELATED TO QUES- TIONS PRESENTED #1 AND #2 The questions in this case related to the attorney- client privilege stem from Grounds #1 to #3 of the Second- Amended Federal Petition, which allege: Ground #1: Petitioner’s right to effective assis- tance of counsel under the 6th and 14th Amend- ments and his right to due process under the 5th Amendment were violated by trial counsel Smith’s wanton mismanagement of information covered by the attorney-client privilege. Ground #2: Trial counsel’s unprofessional han- dling of client’s confidences frustrated the forma- tion of a meaningful attorney-client relationship by causing Petitioner to be less than candid with him in subsequent meetings. This violated Peti- tioner’s 6th and 14th Amendment rights to effec- tive assistance of counsel as crucial information related to guilt, innocence, and punishment was withheld from Smith and ultimately the jury. 8 Ground #3: Attorney Smith’s handling of Peti- tioner’s privilege constituted malpractice and gave rise to a conflict of interest which violated Petitioner’s 6th and 14th Amendment rights to effective counsel. (App. L.) On August 8, 2001, the Magistrate Judge issued a Report and Recommendation suggesting the denial of Grounds #1 to #3 for these reasons. According to the Magistrate Judge: (1) Asignificant and unauthorized breach of the attorney-client privilege by a defense attorney is not “prima facie evidence of unreasonable or in- competent assistance of counsel” (App. F, p. 13(7- 11).) (2) The operative question under Strickland was whether trial counsel’s decision to betray his client’s confidence was “reasonable and compe- tent behavior” and, if not, whether there was a reasonable probability that the error affected the outcome of the case. (/d., at pp. 13(12-15), 17(19- 20).) (3) The disclosure of the location of Susan’s body by Petitioner’s attorney came before the ini- tiation of adversarial judicial proceedings and therefore does not implicate the 6th Amendment. (Id., at p. 17(6-18).) (4) Even if trial counsel did not consult with Pe- titioner on the subject, and obtain a knowing and intelligent waiver, he did give Petitioner the “op- portunity to say no”, and that was sufficient. (Jd., at p. 17(. ‘-27).) 9 (5) The police would inevitably have discovered the body even without Smith’s disclosure. (Jd., at pp. 17(28)-18(2).)’ (6) Petitioner’s story of suicide would have been disclosed even if trial counsel had not asked Jerry Hamilton about the story Petitioner had told during the attorney-client conference of January 12, 1993. (Id., at pp. 18(10)-20(2).) (7) By answering the questions posed by trial counsel about attorney-client communications, Petitioner, during his testimony at trial, impli- edly consented to the disclosure and effectively waived the attorney-client privilege. Under such circumstances trial counsel’s failure to forewarn * In a Memorandum of Points & Authorities filed in support of the Second-Amended Federal Petition, at page 14, note 6, Petitioner stated: .... Petitioner notes that there is good reason to be- lieve that the police would have concluded their search without discovering the body. Detective Schiotis had made a visual search of the southeast bedroom and had not seen the body. (CT 126(20)-127(18).) The police had apparently fin- ished their search of the house at the time of the second phone call from Smith, save for their intention to have a computer expert attempt to access Petitioner’s computers. (See App. N [Petitioner’s declaration]; CT 126-127; RT 493- 494.) Detective Schiotis had left the scene, apparently with plans to return with that expert. (App. N.) Also the body was wrapped in plastic (RT 487(22)-488(11), 489), and had a lot of boxes and items stacked upon it, making it difficult to detect. (RT 484.) A bed was obstructing the closet (RT 483) and several air fresheners were deployed about the body to mask its smell. (RT 484-486.) Neither Respondent nor the Magistrate Judge, ever addressed or rebutted these points. The burden of the government is to prove inevitable discovery by a preponderance of the evidence. (U.S. v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995).) 10 and consult with Petitioner was irrelevant. (/d., at p. 20(4-18).) (8) Counsel’s decision to expose to the jury the lies Petitioner told counsel during attorney-client conferences may have been “unorthodox”, but it can be justified as sound strategy, as exposing how Petitioner lied to his own attorney supported the defense theory of “Post Traumatic Stress Dis- order”. (Id., at pp. 20-21.) (9) Even if trial counsel failed to forewarn or consilt before betraying his client’s secrets, and even if counsel’s behavior impaired Petitioner’s trust in counsel and led Petitioner to withhold material information relevant to the case, these circumstances do not establish a 6th Amendment violation as Petitioner was not entitled to a “meaningful relationship” with his attorney or to one of “trust and candor”. (/d., at p. 22(14-24) [citing Morris v. Slappy (1983) 461 U.S. 1, 14, 75 L.Ed.2d 610, 103 S.Ct. 1610.)’ (10) Moreover, Petitioner’s failure “to request a change or substitution to counsel before or dur- ing trial” forfeited his right to complain about how trial counsel’s precipitous and unauthorized disclosure of his secrets impaired the attorney- client relationship. ([d., at p. 22(25-28).) * True, the Constitution is not violated when a defendant idiosyncratically fails to be candid with his att»rney — that is so long as the attorney has been faithful to his professional end of the bargain. In such an instance, the vagaries of a client’s state of mind are completely his own problem. However, where an attorney’s unorthodox behavior hazard’s his client’s trust, that conduct “must ... be imputed to the State”. (Coleman v. Thompson, 501 U.S. 722, 754, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991).) 11 In an Objection filed on November 13, 2001 under 28 U.S.C. section 636(b), Petitioner contested each of the above findings. (See App. O, pp. 1-35.) Some of the specific points that Petitioner pressed were captioned in the Objection as follows: Ground #1: A. The Magistrate Judge incor- rectly concludes that a significant and unauthor- ized breach of the attorney-client privilege (“ACP”) by a defense attorney is not “prima facie evidence of unreasonable or incompetent assis- tance of counsel”. (App. O, p. 2.) 1. The statutes and ethical standards vio- lated by trial counsel, which are contained in Grounds #1 to #3 of the federal petition. (Id., at p. 3.) 2. Given the purpose of the privilege, a lawyer who makes significant disclosures of ACP material without the due consultation and consent from his client is presumptively incompetent. (Jd., at p. 6.) B. Petitioner was prejudiced by the testimony elicited by trial counsel from Jerry Hamilton re- garding the privileged communications of Janu- ary 12, 1993. (Id., at p. 9.) 1. Trial counsel’s improper elicitation of privileged material during his cross- examination of Jerry Hamilton at the pre- liminary hearing. (Jd., at p. 10.) 2. Trial counsel’s examination of Jerry Hamilton at trial [regarding ACP material] and the ramifications thereof. (Id., at p. 10.) 3. Further ramifications of trial counsel’s incompetence: the need to explain when, how, and why Petitioner changed his story. (Id., at p. 13.) 12 C. Magistrate Judge irrelevantly raises the doc- trine of waiver in relation to [testimony from Pe- titioner] explaining why he lied to his attorney and why he later decided to tell the truth. (/d., at p. 18.) D. The Magistrate Judge erroneously frames trial counsel’s elicitation of ACP material from Petitioner as a tactical choice worthy of deference when counsel lacked the power to unilaterally disclose the information in the first instance. (Id., at p. 19.) Ground #2: A. It is well settled that the effec- tiveness of counsel at trial can be compromised by counsel’s conduct before the commencement of adversarial judicial proceedings. (Jd., at p. 25.) B. The Magistrate Judge improperly concludes that Petitioner waived his ACP with respect to the location of Susan’s body when the facts before the Court are all to the contrary. (Jd., at p. 26.) C. The Magistrate Judge’s application of the ‘inevitable discovery doctrine’ is unfounded and contrary to the undisputed evidence in the rec- ord. (Id., at p. 29.) D. The Magistrate Judge erroneously equates Ground #2 with cases in which a defendant had competent counsel, but not a ‘meaningful rela- tionship’ therewith. (/d., at p. 30.) E. Ground #2 warrants application of the per se standard of reversal attendant to structural er- ror. (/d., at p. 32.) Ground #3: A. Trial counsel’s mismanagement of ACP material created an actionable conflict of interest. (/d., at p. 34.) Despite the above objections, and the extensive supporting argument for each, on August 13, 2002, the District Court Judge adopted the Magistrate Judge’s 13 Report and Recommendation. (App. E.) On September 9, 2002, Petitioner noticed his appeal and sought an exten- sion of time to file a request for a Certificate of Appealabil- ity (“COA”). (App. P.) The District Court denied the request, ruling that it was “unnecessary as the notice of appeal is deemed to constitute a request for a Certificate of Appealability”. (App. C.) On September 17, 2002, the District Court, apparently Working from the Magistrate J udge’s Report and Recommendation filed on August 8, 2002, decided for all ten grounds of the Second-Amended Federal Petition, that “Petitioner [had] not made the required substantial showing of the denial of a constitutional right”. (App. B.) As was allowed under Circuit Rule 22-1, Petitioner then filed a motion with the Ninth Circuit in support of his request for leave to appeal. (App. Q.) Attached as Exhibit ‘C’ to that motion was the Objection Petitioner filed with the District Court. In addition the Motion supplemented Petitioner’s showing with additional argument concerning Grounds #1 to #3, and #5 to #8, of the Second-Amended Federal Petition, i.e., the very Grounds which are impli- cated by the five questions presented in this Petition for Writ of Certiorari. More specifically, the Circuit Rule 22-1 Motion filed with the Ninth Circuit alerted that Court to the debatable legal and factual issues which were the basis of the find- ings of the District Court on Grounds #1 to #3. (See App. Q, pp. 4-10, 20-21 [the Rule 22-1 Motion].) After that Motion was denied, Petitioner filed for rehearing. His petition for rehearing raised the legal and factual issues which are now before this Court in the form of ‘Questions Presented’ #1 and #2. (App. R.) Before rehearing was venied, Petitioner also filed a letter brief under F.R.A.P, 14 Rule 28(j), asking the Ninth Circuit Court to take notice of its recent and contradictory decision in McClure v. Thomp- son, 323 F.3d 1233, 1242-1243 (9th Cir. 2003) [holding that a defense attorney’s unauthorized disclosure of the client- confided location of a murder victim’s body constitutes a Sixth Amendment violation].) (App. S.) E. JURISDICTIONAL FACTS RELATED TO QUES- TION PRESENTED #3 Question Presented #3 is concerned with the structure of the prejudice analysis performed on Petitioner’s ineffec- tive counsel claims in District Court. During the relevant passages of the Report and Recommendation, the Magis- trate Judge repeatedly observes that the jury “could still have found Petitioner guilty” — or words to that effect — even if trial counsel had presented the extra-record evi- dence which is the basis of Grounds #5 to #8 of the Second- Amended Federal Petition. In his November 13, 2001 Objection Petitioner argued that this was not the correct inquiry. In essence, the Magistrate Judge applied the Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979), standard for claims of insufficient evidence to four claims that should have been analyzed under Strickland’s “probabilis- tic” standard. (App. O, pp. 38-53.) This argument was also pressed in the motion that Petitioner filed with the Ninth Circuit. (App. Q, pp. 13-18.) Furthermore, Question Presented #3 was raised again in the Petition for Rehear- ing filed with the Ninth Circuit. (App. R, pp. 5-9.) ih eg ate vibe Rr Be eer mew 3g Sa ae ee meta Pie Aicueniion har 15 F. JURISDICTIONAL FACTS RELATED TO QUES- TION PRESENTED #4 Question Presented #4 was raised in Petitioner’s Objection as filed with the District Court on November 13, 2001. (App. O, pp. 53-64.) Petitioner’s Rule 22-1 Motion with the Ninth Circuit gave the issue additional emphasis. (App. Q, pp. 11-12.) G. JURISDICTIONAL FACTS RELATED TO QUES- TION PRESENTED #5 As previously noted, the District Court deemed Petitioner’s Notice of Appeal to be a request for a Certifi- cate of Appealability on all grounds of the petition, and for all the reasons covered by Petitioner’s Objection. (App. B.) Petitioner’s Circuit Rule 22-1 Motion for a Certificate of Appealability in the Ninth Circuit emphasized the impor- tant and debatable legal and factual questions bearing on Grounds #1 to #3 and #5 to #8 of the Second-Amended Federal Petition. (App. Q.) Both that document and the subsequent Petition for Rehearing, requested a COA on those seven grounds. (App. Q & App. R.) Thus, this Court has jurisdiction to consider all five Questions Presented. REASONS FOR GRANTING THE WRIT Reason #1: Certiorari should be granted to close a gap in this Court’s jurisprudence regarding the attorney-client privilege. In Upjohn v. United States, Fischer v. United States, United States v. Zolin, and Weatherford v. Bursey, this Court held that the Sixth Amendment and the attorney-client privilege stand to safeguard a legitimate 16 attorney-client relationship and its secrets from intrusion by opposing parties and the Government.’ In Nix v. White- side, this Court made clear that neither the Sixth Amend- ment nor the attorney-client privilege shields a client’s announced plans to engage in future criminal conduct, such as perjury.’ However, the Court has never written to define the degree of discretion that an attorney. has in disclosing his client’s confidences about a completed crime, nor the extent to which an unauthorized disclosure by a criminal defendant’s attorney may be said to violate the Sixth Amendment. Indeed, in Nix v. Whiteside, supra, the Court pointed out the need to address this issue “[i]Jn some future case”. (Id.; at 475 U.S. 165-166.) The lower federal courts exploited this lacuna, ex- pressly finding that “while a violation of attorney-client privilege, if proven, may be a violation of ethical cannons, it is not prima facie evidence of unreasonable or incompe- tent assistance of counsel”. (App. F, p. 13(9-11).) The District Court observed that it could not “find any state- ment of law which holds, that counsel has an affirmative duty to inform his client of the protection of [the] attorney- client privilege before seeking consent to disclose the privileged information”. (/d., p. 13, fn. 5.) It then concluded that Petitioner could not succeed on federal petition Grounds #1 to #3 unless he proved that counsel’s betrayal * Upjohn v. United States, 449 U.S. 383, 389, 66 L.Ed.2d 584, 101 S.Ct. 677 (1981); Fischer v. United States, 425 U.S. 391, 403, 48 L.Ed.2d 39, 96 S.Ct. 1569 (1976); United States v. Zolin, 491 U.S. 554, 562, 105 L.Ed.2d 469, 109 S.Ct. 2619 (1989); Weatherford v. Bursey, 429 U.S. 545, 554, fn. 4, 51 L.Ed.2d 30, 97 S.Ct. 837 (1977). * Nix v. Whiteside, 475 U.S. 157, 165-166, 89 L.Ed.2d 123, 106 S.Ct. 988 (1986). 17 of his confidences was “outside the broad scope of reason- able and competent behavior”. (Id., at pp. 13(11-15), 17(19- 20).) Thus, under the District Court’s analysis, the de- ployment of privileged information was within the strate- gic prerogative of Petitioner’s attorney, just as, say, a decision to call a given witness (other than Petitioner) was. Petitioner strove mightily to persuade the lower courts that the unauthorized disclosure of a client’s legiti- mate confidences — especially without advance consulta- tion — is not within the lawful and ethical purview of an attorney's strategic fiat. Based upon the relevant statutes, ethical canons, and this Court’s decisions, Petitioner would appear to have the better argument. Under California: Business and Professions Code section 6068(e), trial counsel had a duty to “maintain inviolate the confidence, and at every peril to himself... to preserve the secrets, of his or her client”. The American Bar Association’s (ABA) Ethical Canon 4 provides: “A lawyer should preserve the confidences and secrets of a client.” The ABA’s Ethical Consideration EC4-4 provides in pertinent part: “A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.” ABA Model Rule of Professional Conduct (1983), Rule 1.6 provides a list of well established exceptions to the rule of confidenti- ality, only one of which is pertinent to this case: A lawyer may reveal confidential information if “the client consents after consultation”. Consistent with the ABA rule, a respected treatise on California Criminal Practice de- scribes the proper procedure to follow in the initial client interview: 18 Perhaps the most important objective of the ini- tial interview is to establish the proper attorney- client relationship. The attorney must strive to develop a climate of trust by explaining the at- torney-client privilege, pointing out that a suc- cessful outcome requires that the attorney know all the facts, and conducting the interview in a manner that inspires confidences and trust. (Lexis-Nexis (2003) California Criminal Defense Practice, § 1.13(2)(b), p. 1-44.11.) | Furthermore, black-letter law in California reinforces the ABA rules on the subject. California Evidence Code sections 953 to 955 state that the privilege is vested in the client, not his attorney. “A lawyer who ... received... a communication that is subject to the lawyer-client privi- lege has a duty to claim the privilege whenever he ... is present when the communication is sought to be disclosed, unless the holder of the privilege no longer exists or instructs the lawyer otherwise.” (Jefferson’s California Evidence Benchbook (8rd Ed., 2003) § 40.7 (emphasis added). Waiver of the privilege can only occur “if any holder of the privilege ... has consented to [such] disclo- sure”. (Cal Evidence Code § 912(a).) The attorney, under California law, is not defined as a “holder” of the attorney- client privilege. (Cal. Evidence Code § 953.) According to this Court’s precedent, these statutes and professional rules have compelling weight in context of the Sixth Amendment analysis for ineffective counsel claims — such as those made by Petitioner. (Strickland v. Washington, 466 U.S. 668, 688-689, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984); Wiggins v. Smith, __ US. eee L.Ed.2d ___, 123 S.Ct. 2527, 2534-2539 (2003) [parts IIA and IIB(1) citing ABA standards as “guides to determining what is reasonable”].) eR TAR Nt? SNELL NL ape GLC 19 Thus, contrary to the Magistrate Judge’s assertion, a violation of the attorney-client privilege is prima facie evidence of unreasonable and incompetent assistance of counsel. How. could it be otherwise? The District Court, in essence, held that an attorney’s violation of explicit state statutes, and the related ABA standards, may yet be competent, ethical, and reasonable. 7 Lacking a rebuke through this case, and broader guidance on principle, attorneys and courts will remain empowered to assess a defense attorneys unilateral disclosure of his client’s secrets in terms of whether pragmatic justification for them can be postulated. In deciding to grant certiorari, this Court should reflect upon the fact that this case has reached it because 16 judges’ felt that trial counsel Smith’s conduct was perfectly within the ambit of his authority and the Sixth Amendment. The federal judges who have reviewed the case do not even think that Grounds #1 to #3 are worthy of appeal. Such circumstances evidence a dire need for an admonishment and instruction from this Court. (See Miller-El v. Cockrell, 587 U.S. 322, 154 L.Ed.2d 931, 123 S.Ct. 1029, U.S. cert. den., 155 L.Ed.2d 194 (2003).) Reason #2: Certiorari should be granted because it is unlikely that a case more probative of the relationship between the Sixth Amendment and the attorney-client privilege will come along. As previously noted, the Ninth - Circuit just decided a case in which a defense attorney * That is, one Superior Court Judge, three Judges of the California Court of Appeal, seven Judges of the California Supreme Court, the Magistrate Judge, the District Court Judge, and three Judges of the Ninth Circuit. 20 disclosed without authorization the client-confided loca- tion of a murder victim’s body. (McClure v. Thompson, 323 F.3d 1233, 1235-1239 (9th Cir. 2003).) McClure is probably now before this Court seeking certiorari. Given the split panel decision in McClure, there may be good cause for certiorari to be granted. However, in that case the attorney believed that his disclosure could potentially save lives. (Id., at 1236.) In the case sub judice, no one has tried to justify the disclosures in terms of the prevention of other criminal acts or the saving of life. Moreover, in this case, there were multiple breaches of the privilege, breaches across the entire spectrum of trial counsel’s repr2sentation of Petitioner. In McClure there was only one. To aid this Court in assessing the “cert-worthiness’”, both as an independent proposition and _ vis-a-vis McClure’s, it will be helpful for the Court to know some- thing about the other ways that attorney Smith exposed information subject to the ACP. Petitioner has already described the way in which Smith revealed the location of Susan Kurtz’s body. Unfor- tunately, Smith’s penchant for revealing privileged mate- rial manifested itself in other ways, both at Petitioner’s preliminary hearing and at trial. Petitioner will now describe the events at trial. When Jerry Hamilton testified, Smith broached the subject of the content of the attorney-client conference of January 12, 1993. (RT 123(22)-125(3).) In light of the apparent waiver of the privilege, the prosecutor on redi- rect elicited that Petitioner had told Smith where the body was and that Petitioner had lied to Smith, saying that Susan had committed suicide. (RT 133-134.) Later in the trial, Mr. Hamilton was recalled to the stand and Smith expanded the scope of the privileged facts divulged to the 21 jury. Under Smith’s questioning, Mr. Hamilton testified that Petitioner “may have” told Smith that he found Susan hanging from the rafters in the garage and that Petitioner did tell Smith that he found Susan on the floor beneath the rafters. (RT 445.) This testimony in no way helped Petitioner. The coroner conciusively ruled out death by hanging (RT 345, 422-423), and Petitioner’s own testimony was inconsistent with the suicide/rafter’s story. (RT 724-748.) The brunt of these unprofessional errors began to be felt by Petitioner during his testimony in the defense case. Trial counsel knew that his client had abandoned the suicide/rafters story. Nonetheless, he had allowed the jury to learn that Petitioner had told him that story at the outset of the attorney-client relationship. This created a rhetorical problem. Before he could have his client tell the truth, he first had to explain how and why his client had abandoned the false suicide/rafters story. The upshot of these considerations was that, barely a minute into the direct examination, Attorney Smith had Petitioner admit that he had lied to Smith. (RT 684.) Later in the direct examination, Smith asked Petitioner to tell the jury why he had lied to Smith. (RT 778.) Trial counsel asked Petitioner to describe what caused him “to admit that [he was] responsible for her death after months of lying?” (RT 779(10-11).) Smith, of course, knew that this question would elicit privileged material, as an excerpt from the transcript will make clear: A. [By Petitioner]: “... the final straw [in ad- mitting that I was responsible came] in that meeting that we had together, you [i.e., Smith] had indicated to me that given the facts in this case and what I had said ... wasn’t very plausi- ble. 22 Q. At that meeting, did you tell me what hap- pened? A. No. Q. When did — how long after that meeting did you come to me? A. The next day.” (RT 779-780.) Smith then led Petitioner through a series of ques- tions establishing that Petitioner had never admitted his responsibility for Susan’s death prior to the January 12, 1993 attorney-client conference. (RT 780.) The prosecutor on cross-examination made predictable and. devastating use of the scope of Smith’s ever-widening elicitation of attorney-client information: Q. [By the Prosecutor] You met with your attor- ney and he told you that if you maintained this story of suicide, you were going to go down on first degree murder. And he told you to think about that and ... now we have this story you’ve related here in court. M. Smith: Again, Your Honor, object, misstating the testimony of the witnesses. The Court: Sustained. Q. Did your attorney sit down with you and tell you that your story of suicide wasn’t going to wash? A. Not in those words. Q. In-—in words to that effect? A. Yes. Q. And he told you to think about it? A. No. 23 Q. Well, it was at some point after that discus- sion, was it not, that this story surfaced about this struggle in the house? A. That’s correct. (RT 786(7-25).) Later, the prosecutor ravaged Petitioner’s credibility with these questions. Q. When did you tell Mr. Smith, you told him that she had committed suicide? A. That's correct. Q. And it wasn’t until he sat you down and said that that wasn’t going to wash that your story changed? Mr. Smith: Your Honor, I am going to object to the form of question. I think it’s misleading the evidence. The Court: Sustained. Rephrase. Q. When you met Mr. Smith, you didn’t tell him that you had had this struggle and she acciden- tally was killed? A. No. Q. In fact, you told him about this suicide. When you talked to him about the suicide, did you say she was hanging from the rafters? A. Idon’t recall. * Q. You don’t recall what you told your lawyer when you first met him and told him about your wife’s death? A. No. (RT 814(7-25).) However, the prosecutor was not finished exploiting the advantages offered by the scope of Smith’s direct: Q. Isn’t it a fact that — strike that. At the pre- liminary hearing, back in February, you heard 24 the testimony of Doctor Gopal regarding the medical evidence in this case? A. Yes, I did. Q. And you heard him say at that time that this was not a hanging, not a suicide. Do you recall that? A. Yes. Q. And isn’t it true it was after that point in time that you decided to say that, yes, you were involved in her death but it was this accidental killing? A. It might have been after that, yes. (RT 828-829.) Predictably, during closing argument, the prosecutor leveraged the windfall of privileged information that he had been handed into a stunning attack on the bonafides of Petitioner’s testimony: Well, come February at the preliminary hearing, [Petitioner] learns different. This isn’t a suicide, it is not a hanging. The physical evidence is in- compatible with his second lie so he has had six months to think about his third one and you have heard it here, Friday and yesterday. The. way he has craftily lied throughout this case re- minds me of the saying I generally don’t quote, but there is a saying that says, ‘Oh, what a tan- gled web we weave, when we practice to deceive’. That quote was made hundreds of years ago, I believe, but you’d think that the author had this man in mind. (RT 902-903.) Later in his summation the prosecutor remarked that Petitioner had lied to everyone, even “to his own attorney ... but now he would have you believe that he’s telling the : 25 truth. He is not. He’s lying to you.” (RT 944.) From the above passages and facts, this Court can readily see that trial counsel exposed nearly the entire attorney-client relationship to the jury. Petitioner alleged that he did so without consultation, and no evidence to the contrary was ever adduced. (See Second Amended Federal Petition, App. L, pp. 8-10.) On such facts, Petitioner should not only have been granted a COA, he should have been granted relief. Reason #3: Certiorari should be granted to explore whether the Strickland outcome-determinative standard should be applied, or a less-error tolerant one, to claims such as Petitioner’s Ground #1 and #2. Petitioner pre- sented to the District Court prima facie evidence that the breach of the privilege inhibited him from disclosing vital facts bearing on the charges against him. (See App. M [Ground #2].) Such allegations should not be hard for this Court to believe. “(I]f the client knows that damaging information could more readily be obtained from the attorney ... [a] client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” (Fischer v. United States, 425 U.S. 391, 403, 48 L.Ed.2d 39, 96 S.Ct. 1569 (1976).) The “Sixth Amendment’s assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private... .” (Weatherford v. Bursey, 429 U.S. 545, 554, fn. 4, 51 L.Ed.2d 30, 97 S.Ct. 837 (1977).) The privilege is therefore central “to the proper functioning of our aciversary system of justice.” (United States v. Zolin, 491 U.S. 554, 562, 105 L.Ed.2d 469, 109 S.Ct. 2619 (1989).) The District Court shrugged off these authorities, and Petitioner’s qualms with respect to the standard of review being applied to his claims, holding that it was Petitioners 26 responsibility, even without advice from his attorney on the scope and nature of the privilege, to realize that counsel’s actions were unlawful and unethical, and Petitioner’s responsibility to seek to terminate his (rather expensive) relationship with his attorney. (App. F, pp. 22(14)-23(8) [denying Ground #2].) The District Court’s reasoning stands on its head the whole principle behind the Sixth Amendment’s guarantee of effective counsel. Under the District Court’s analysis, the client must be sufficiently versed in the nuances of the privilege to recognize the impropriety of his attorney's behavior; and, if he is not that sophisticated, he is deemed te have forfeited his rights — both under the attorney- client privilege and the Sixth Amendment. Yet, this Court has observed: “[a] layman may not be aware of the precise scope, the nuances, and boundaries of [a testimonial privilege like the 5th Amendment].” (Maness v. Meyer, 419 U.S. 449, 466, 42 L.Ed.2d 574, 95 S.Ct. 584 (1975).) How much more so the atvorney-client privilege? This Court may answer that question, and demonstrate the proper standard of review for claims such as Petitioner’s by granting certiorari. Reason #4: Certiorari should be granted to address the intra-circuit split created by the Ninth Circuit’s holdings in McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003), and this case. Such a split is a recognized basis for certio- rari to be granted. (Stern, Gressman, et al., Supreme Court Practice (7th Ed. 1993) § 4.6 at pp. 176-177.) Ironically, McClure, decided within days of the denial of Petitioner’s appeal by the Ninth Circuit, vindicates Petitioner’s position and contradicts the District Court on three core issues: 27 First, McClure holds that a material breach of the attorney-client privilege “makes out a deprivation of the Sixth Amendment right to counsel”. (d., at 1242-1243.) As noted, the lower court held that a violation of the privilege “is not prima facie evidence” of ineffective counsel. (App. F, p. 13(7-11).) Second, McClure holds that. the privilege is only waived through “consent after consultation”. (/d., at 1243- 1245.) The lower court held thut consultation was not an important factor. (App. F, pp. 13, fn. 5, 17(19-26).)- Third, unlike McClure, no evidentiary hearing was held in Petitioner’s case, and this despite Petitioner's submission of declarations from two witnesses to Smith’s disclosure of the location of the victim’s body and the incontrovertible evidence of other breaches in the trial transcript. Between those declarations and the trial transcript, there was ample justification for an evidentiary hearing where Smith could be asked to explain his con- duct. Thus, the decision in Petitioner’s case varies from the holding in McClure in three foundational matters. Such contradictions should not be allowed to stand. Reason #5: Certiorari should be granted because the District Court’s harmless error analysis was directly contrary to this Court’s precedent and in a way that is a recurring problem among the circuits. In presenting its prejudice analysis for Grounds #5 to #7 (all claims of ineffective assistance of counsel) the District Court failed to determine whether there was a “reasonable probability of a different outcome”. Instead, the District Court asked whether, but for trial counsel’s errors, the jury “could still have” found petitioner guilty. Finding that it “could”, the District Court decided petitioner had not proven prejudice. 28 In all, the District Court applied this linguistic formula on nine occasions in denying Grounds #5 to #7. The following excerpts from the R&R will bring petitioner’s point into focus: “EXCERPTS FROM THE MAGISTRATE JUDGE’S PREJUDICE ANALYSIS FOR GROUND #5 The prosecution’s theory could reasonably be in- terpreted by the jury as calling into question Pe- titioner’s ability to handle another failure, the loss of his business a second time to a wife who could no longer put up with his drug addiction. (App. F, p. 28(22-26).) There was also more at stake than just the busi- ness. There was the possibility that Petitioner would lose custody of his son. Thus, even if Trial Counsel had presented evidence of Petitioner’s alleged financial independence, the jury could still find the prosecution’s motive theory credible. As Petitioner has failed to show prejudice, this claim must fail. (/d., at p. 29(1-5).) (emphasis added) EXCERPTS FROM THE MAGISTRATE JUDGE’S PREJUDICE ANALYSIS FOR GROUND #6 Even if the jury believed every word of Peti- tioner’s testimony regarding his wife’s anger, they could still have found him guilty of first de- gree murder. ... The jury could reasonably have found that holding a computer cord around someone’s head or neck is highly likely tovlead to strangulation and death. Additionally, the jury could still have determined that during the struggle Petitioner had the opportunity con- sciously to choose between walking or running away from the house and his upset wife or killing EBL NOI AE RE ORCI SN ORAS RE AR ABEL EATS Sie he | ts . “ 2 4 “ 2 4 * he 4 4 > a Ne 4 if 4 4 f B 7 te 2 3 29 her. They could reasonably have found that Peti- tioner’s actions following the murder were evi- dence of his consciousness of guilt. Finally, they could have found that Petitioner, based on his lies to family, friends, and police officers, was not a credible witness and therefore did not believe that this was an accident. (App. F, pp. 31(24)- 32(12.) (emphasis added) EXCERPTS FROM THE MAGISTRATE JUDGE’S PREJUDICE ANALYSIS FOR GROUND #7 Therefore, [Petitioner] concludes, the jury must have interpreted this receipt to mean that Susan knew of Petitioner’s infidelities, and that de- stroyed his credibility which led them to con- vict.... The jury therefore did not need to infer that she knew of his contact with prostitutes. ... The jury could therefore have determined that based on her suspicions she decided to get tested... . Thus, exposure of the jury to this ex- trinsic evidence did not necessarily incriminate Petitioner or unduly influence their determination of guilt or innocence. [] As discussed previously, even if the jury believed Petitioner’s testimony that he was only responding in kind to his wife’s rage, the jury could still have found him guilty. (App. F, pp. 34(20)-35(7).) (emphasis added)” If this Court allows this case to end without appellate briefing, it will have sanctioned the resolution of three ineffective counsel claims under the Jackson v. Virginia insufficiency of the evidence standard, rather than the Strickland v. Washington standard, which obviously governs the question, and it will have broken with its own precedent. Reason #6: Certiorari should also be granted to give reinforcement to this Court’s jurisprudence regarding the 30 issuance of COA’s. The District and Circuit Courts are under incredible pressure to manage their case loads. Yet they are underfunded and understaffed. It is all too easy to see how the rights of state prisoners to appeal can end up being given short shrift. Prisoners are a despised class and the job of vindicating the constitutional rights of state prisoners can easily be rationalized as one best left to the states — if not de jure, then at lease de facto. Yet this Court has a storied history of protecting the rights of state prisoners and has repeatedly observed that such statutory schemes as 28 U.S.C. section 2253 are not to be construed as denying the right to appeal issues which are debatable. (See Barefoot v. Estelle, 463 U.S. 880, 893 & fn. 4, 77 L.Ed.2d 1090, 103 S.Ct. 3383 (1983); Miller-El v. Cockrell, 537 U.S. 322, 154 L.Ed.2d 931, 123 S.Ct. 1029, US. cert. den., 155 L.Ed.2d 194 (2003).) CONCLUSION For all of the foregoing reasons, this Court should grant Petitioner’s Petition for Writ of Certiorari and order the lower courts to grant Petitioner a Certificate of Ap- pealability. The above-referenced issues of violations of the attorney-client privilege, violations of ethical canons, violations of rules of professional responsibility, as they relate to the Sixth Amendment’s guarantee of competent counsel, are of critical importance to this nation’s criminal justice system and are at the core of a criminal defense attorneys duties to his client. These duties should be addressed and delineated as this Court’s decision in Nix v. Whiteside, supra, at 475 U.S. 165-166, mandated. Dated: August 12, 2003 Respectfully submitted, WILLIAM E. GILG Attorney for Petitioner Al APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT MICHAEL KURTZ, _| No. 02-16843 a D.C. No. Petitioner-Appellant, CV-97-06201-AWI Vv. Eastern District ROBERT L. AYERS, Warden, _| California (Fresno) Respondent-Appellee. ORDER (Filed Mar. 18, 2003) Before: BEEZER AND MCKEOWN, Circuit J udges. The request for a certificate of appealability is : denied. See 28 U.S.C. § 2253(c)(2). Bl APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ROBERT M. KURTZ, ) CV F 97-6201 AWI SMS P Petitioner, ‘ ORDER DENYING " ) REQUEST FOR ' CERTIFICATE OF ROBERT AYERS, Warden, APPEALABILITY Respondent. _) (Filed Sep. 17, 2002) On September 9, 2002, Petitioner filed a notice of appeal from the judgment entered against him on August 14, 2002, denying his petition for writ of habeas corpus. In connection with his appeal, Petitioner seeks a certificate of appealability. The controlling statute is 28 U.S.C. section 2253, which provides as follows: (a) In a habeas corpus proceeding or a proceed- ing under section 2255 before a district judge, the fi- nal order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceed- ing is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — B2 (A) the final order in a habeas corpus proceed- ing in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appeability may issue under paragraph (1) only if the applicant has made a sub- stantial showing of the denial of a constitutional right. (3) The certificate of appealability under para- graph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). In the present case, the court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the court hereby ORDERS that Petitioner’s request for a certificate of appealability is DENIED. DATED: Sept. 17, 2002 /s/ Anthony W. Ishii ANTHONY W. ISHII UNITED STATES DISTRICT JUDGE Cl APPENDIX C UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROBERT M. KURTZ, ) CV F 976201 AWISMS P Petitioner, ORDER DENYING ) PETITIONER'S APPLICATION FOR ROBERT AYERS, Warden, ENLARGEMENT Respondent, ) OF TIME AS MOOT ) (Document 59) ) (Filed Sep. 13, 2002) V. Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 13, 2002, the Court adopted the Findings and Recommendation of the Magistrate Judge and denied the petition for writ of habeas corpus. On August 14, 2002, judgment was entered for Respondent, and the case was dismissed. On September 9, 2002, Petitioner filed a notice of appeal, along with an application for an extension of time to file a request for certificate of appealability. However, an extension of time is unnecessary as the notice of appeal -is deemed to constitute a request for a certificate of ap- pealability. F. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Accordingly, Petitioner’s request for an extension of time to file a request for certificate of appealability is DENIED AS MOOT. CARR LAL, Ber Oh a Nig d BEATIN PERE CA WE Le C2 IT IS SO ORDERED. DATED: 9/13/02 /s/ Sandra M. Snyder SANDRA M. SNYDER UNITED STATES MAGISTRATE JUDGE D1 APPENDIX D UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROBERT M. KURTZ, JUDGMENT IN A CIVIL ACTION CV-F-97-6201-AWI/SMS P / (Filed Aug. 14, 2002) Vs. ROBERT AYERS, Warden, The Findings and Recommendations issued by the Magistrate Judge on AUGUST 8, 2001, are hereby adopted in full, and IT IS HEREBY ORDERED AND ADJUDGED that the petition for writ of habeas corpus is DENIED. DATED: 8-14-02 JACK L. WAGNER, Clerk By: /s/ [Illegible] Deputy Clerk El APPENDIX E ~ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROBERT M. KURTZ, ) CV-F-97-6201-AWI-SMS-P Petitioner, ORDER REGARDING : , REPORT AND . , RECOMMENDATION ROBERT AYERS, Warden, ; inion Respondent. ) (Filed Aug. 13, 2002) Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On August 8, 2001, the Magistrate Judge filed a Report and Recommendation that the Petition for Writ of Habeas Corpus be DENIED. This Report and Recommen- dation was served on all parties and contained notice that any objections were to be filed within thirty (30) days from the date of service of that order. On November 13, 2001, Petitioner filed timely objections to the Report and Rec- ommendation. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s objections, the Court concludes that the Magistrate Judge’s Report and Recommendation is supported by the record and proper analysis. Petitioner’s objections present no grounds for questioning the Magis- trate Judge’s analysis. E2 Accordingly, IT IS HEREBY ORDERED that: 1. The Report and Recommendation, filed August 8, 2001, is ADOPTED IN FULL; 2. The Petition for Writ of Habeas Corpus is DE- NIED; 3. The Clerk of the Court is DIRECTED to enter judgment for Respondent; and, 4. All pending motions are DENIED as moot. DATED: 8-13-02 /s/ Anthony W. Ishii ANTHONY W. ISHII UNITED STATES DISTRICT JUDGE mn —— ee Fl APPENDIX F UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ROBERT M. KURTZ, ) CV F 97-6201 AWI SMS P Petitioner, REPORT AND ) RECOMMENDATION PETITION FOR WRIT ROBERT AYERS, WARDEN OF HABEAS CORPUS Respondent. - )(Filed Aug. 8, 2001) Robert M. Kurtz (“Petitioner”) is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. PROCEDURAL HISTORY On August 26, 1993, a jury found Petitioner guilty of murder in the first degree of his wife Susan. It was further found true the special enhancement, use of a dangerous weapon. Petitioner was then sentenced to a term of twenty-five years to life, plus one year for the special enhancement. On August 4, 1994, Petitioner filed an appeal with the Court of Appeals for the State of Califor- nia, Fifth Appellate District. On June 6, 1995, the Court of Appeals, in an unpublished opinion, affirmed Petitioner’s conviction. On July 11, 1995, Petitioner filed a petition for review with the California Supreme Court. Petitioner alleged, as he had before the appellate court, that the trial court erred by failing to give CALJIC No. 8.73; prejudicial error in the exclusion of expert testimony regarding defendant’s propensity for violence; and violation of the right to public trial when the trial court ordered the F2 courtroom locked during closing arguments. The court denied his petition on August 30, 1995, without citation or comment. On February 26, 1997, Petitioner filed his first Peti- tion for Writ of Habeas Corpus with the Fresno County Superior Court, which was denied on March 14, 1997. On April 7, 1997, Petitioner filed a Petition for Writ of Habeas Corpus with the state appellate court, which was denied on April 10, 1997. Petitioner filed a Petition for Review with the California Supreme Court on April 21, 1997. Petitioner alleged: (1) violation of due process through the inadvertent admission of hearsay evidence; and (2) ineffec- tive assistance of counsel for failing to search Susan’s wallet and for failing to request CALJIC No. 8.73. On June 18, 1997, the California Supreme Court denied Petitioner’s petition, stating simply “petition for review denied on the merits.” On May 6, 1997, Petitioner filed a second Petition for Writ of Habeas Corpus with the Fresno County Superior Court, which was denied on May 14, 1997. On June 24, 1997, Petitioner filed his second Petition for Writ of Habeas Corpus with the state appellate court, alleging several claims of ineffective assistance of counsel. The state appellate court sent three letters to Trial Counsel, July 9, 1997, December 9, 1997, and February 17, 1998, asking for a declaration in response to Petitioner’s claims. Petitioner filed a Petition for Writ of Habeas Corpus with this court on December 12, 1997, presenting the same four claims alleged in his first state habeas petition. Petitioner simultaneously filed a motion to hold his petition in abeyance while he exhausted the claims pre- sented in his second state habeas petition. On December F3 26, 1997, Respondent was ordered to respond. On Febru- ary 4, 1998, Respondent filed a response in opposition. Petitioner filed a reply on February 9, 1998. On March 2, 1998, Petitioner’s motion to hold the petition in abeyance was denied and Respondent was ordered to respond. On April 20, 1998, Petitioner filed a petition to withdraw his petition without prejudice. On April 28, 1998, this Court issued an order clarifying its position regarding denial of Petitioner’s motion to hold the petition in abeyance. The Court ordered petitioner to notify the court of his inten- tions and notified Respondent that Respondent need not respond until Petitioner made his intentions clear. On May 7, 1998, Petitioner filed his response notifying the court of his intent to proceed. On July 27, 1998, Respondent filed an Answer. On June 3, 1998, Petitioner filed a Traverse. Meanwhile, having received no response from Trial Counsel, the state appellate court denied the second Petition for Writ of Habeas Corpus on January 29, 1999. On April 9, 1999, Petitioner filed his second Petition for Wr.t of Habeas Corpus with the California Supreme Court. The ten claims alleged were ineffective assistance of counsel based on the following: violation of attorney-client privilege (comprising eighi of the ten claims); failing to present evidence to rebut the motive theory of the case; and failing to introduce corroborating evidence of Susan’s state of mind through her “step diary.” On July 19, 1999, this Court issued an order notifying Petitioner that it was ready to proceed on the merits of his ' “Step” refers to the twelve step program of Alcoholics Anonymous and related programs. ee F4 case, but had not received an amended petition for addi- tional claims. The Court further specified that Petitioner had twenty (20) days to show cause why this Court should not proceed. On July 27, 1999, Petitioner filed a second motion to hold his petition in abeyance pending exhaus- tion of his claims in state court. On July 28, 1999, the California Supreme Court denied Petitioner’s second Petition for Writ of Habeas Corpus citing In re Clark, 5 Cal. 4th 750 (1993); In re Rob- bins, 18 Cal. 4th 770, 780 (1998); and In re Waltreus, 62 Cal.2d 218, 225 (1965). On August 6, 1999, Petitioner filed his Second Amended Petition for Writ of Habeas Corpus with this court. On October 8, 1999, the Court issued an order grant- ing Petitioner’s motion to amend the petition, denying Petitioner’s motion to hold the petition in abeyance, and ordering Respondent to file a response to the second amended petition. On March 23, 2000, Petitioner filed a Motion for Expansion of the Record. On April 10, 2000, Respondent filed his Answer to the Second Amended Petition for Writ of Habeas Corpus and a Notice of No Opposition to Motion for Expansion of the Record. Peti- tioner filed a Traverse on June 13, 2000. Petitioner then filed a request to supplement the points and authorities to his traverse and the supplemental memorandum of points and authorities in support of traverse on July 24, 2000. On August 2, 2000, the Court issued an order granting the supplementation of the memorandum of points and au- thorities in support of Petitioner’s Traverse. On August 30, 2000, Petitioner filed an application and request for an F5 evidentiary hearing as to grounds one through eight (1-8) of the second amended petition. Petitioner presents ten (10) claims in his Second Amended Petition for Writ of Habeas Corpus (hereinafter “2AP”). The first eight claims are all based on ineffective assistance of counsel and include: (1) ineffective assistance of counsel through Trial Counsel’s mismanagement of information covered by attorney-client privilege; (2) constructive denial of effective assistance of counsel through violations of attorney-client privilege; (3) conflict | of interest based on violations of attorney-client privilege; (4) conflict of interest based on Trial Counsel’s relationship with the District Attorney’s Office and the Police Depart- ment; (5) Trial Counsel’s failure to present evidence to rebut the prosecution’s motive theory; (6) Trial Counsel’s failure to present corroborative evidence regarding Susan’s state of mind; (7) ineffective assistance of counsel and due process violations through Trial Counsel’s failure to inventory Susan’s wallet before allowing its admission into evidence resulting in admission of damaging hearsay evidence; and (8) Trial Counsel’s failure to request CALJIC No. 8.73 (relating to provocation and the degree of mur- der). The remaining two claims are: (9) violation of due process and the right to a jury trial through the trial court’s failure to give, sua sponte, CALJIC, No. 8.73; and (1%) insufficient evidence to support a finding of first degree murder. A, Bt Ai a LN I iB Si tte iy Nic ces Se Ghetiadaens 2 F6 FACTUAL HISTORY’ Petitioner and Susan Kurtz owned a computer store, MacSource, in Fresno. They had a troubled marriage due largely to Petitioner’s alcohol and cocaine use. Because of Petitioner’s cocaine use, Susan had removed his name from the MacSource checking account. The couple separated between August and October of 1992. They reunited, and Susan became pregnant with their second child. In January of 1993, Susan began to do her work from their home because she was having a difficult pregnancy. Petitioner was in recovery from his addictions and attended Alcoholics Anonymous (“AA”) meetings. As part of the AA program, members are required to have a sponsor, and work through a twelve (12) step program. The fourth step requires the creation of a personal inven- tory of the member’s life, including a list of wrongs they committed and the people they resented. On Tuesday, January 5, Petitioner went to an AA meeting. Petitioner’s sponsor, Reed Harris, noticed that Petitioner was agitated that evening. Petitioner revealed to Harris that Susan had found his fourth step notes. On Thursday, January 7, 1993, Petitioner reported his wife missing. Petitioner claimed his wife had left their home at 9:30 p.m. that evening. Her car was found at their business; Susan’s coat and the keys to the store were inside. Susan’s purse, some cash ($75.00) and a computer * The following facts are summarized from the state appellate court slip opinion issued June 6, 1995. F7 printer were missing and the back door appeared to have been tampered with. Police officers filed a missing persons report. On Monday, January 11, 1993, Petitioner went out to dinner with his mother and stepfather, Kathy and Jerry Hamilton. During dinner, Petitioner told them Susan was dead. Petitioner claimed Susan committed suicide in the garage. Petitioner arranged to turn himself in to his attorney the following morning. Later that same evening he told his AA sponsor, Reed Harris, about Susan’s suicide. On Tuesday, January 12, police executed a search warrant at Petitioner’s home. Petitioner arrived during the search of his home in order to get a change of clothes. He was allowed to get the clothes and leave. He then went to his attorney’s office. While the search warrant was still being executed, Petitioner’s attorney telephoned the house and told the officers the location of Susan’s body. Susan’s body was found in the home on the closet floor of the southeast bedroom. A bed had been pushed up against the closet door and there were air fresheners in the room and in the closet. Susan’s feet were bound with duct tape and her body was wrapped in several layers of plastic. It was the pathologist’s opinion that Susan died from strangulation. The pathologist found evidence of both ligature and manual strangulation. Susan also had a black eye and injuries to her tongue. The doctor testified that in his strong opinion these injuries were not consistent with Susan hanging herself. Susan was five feet six inches tall -and weighed two hundred and forty-two pounds at the time of the autopsy. The fetus she was carrying was eight to ten weeks old. F8 Defense Petitioner testified at trial. He said Susan had found his fourth step paperwork. In this document Petitioner had detailed all of the extra-marital sexual encounters that he had engaged in while using drugs. Petitioner said that Susan became very upset and wanted to talk to him but he refused. The next morning Susan again tried to talk with him, which lead to a physical altercation. Peti- tioner said that during this fight he was trying to restrain or control Susan with a computer cable and accidentally choked her to death.* Petitioner testified that he hid Susan’s body because he was overwhelmed with guilt and did not think_anyone _ would believe him. Petitioner admitted he had been dishonest with the police, his lawyer, and many others. Petitioner was examined by Dr. Phillip Hamm, a licensed psychologist, who opined that immediately after Susan’s death Petitioner was suffering from post trau- matic stress disorder. He had an overwhelming guilt reaction and believed that no one would believe what really happened. Several witnesses testified that they knew Petitioner and that he did not have a reputation for violence. In addition, witnesses testified that it was not unusual for Petitioner to have a computer cord draped around his neck while he was working on computers. * On January 2, 1993, Petitioner weighted 155 pounds. PN haere tine MA MTS We LLG Cad. aimee te certs . A he Root dis a OE Se ee Te eee ae i F9 STANDARD OF PROCEDURAL REVIEW a. Antiterrorism and Effective Death Penalty Act On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). Since petitioner filed the instant petition on April 6, 1999, after the enactment of the AEDPA, the Act is appli- cable to his petition. Under the AEDPA, a federal court may grant a peti- tion for writ of habeas corpus on a claim that the state court heard on the merits in only three instances. First, if the state court’s decision was contrary to a decision of the Supreme Court or resulted in “a conclusion opposite that of a decision by [the Supreme Court] on a question of law or ... differently than a decision by [the Supreme Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000); 28 U.S.C. § 2254(d)(1). Second, where the state court uses the correct governing legal principle as set forth by the Supreme Court but unreasonably applies that principle to the facts of the prisoner’s case, the federal court may grant a petition for writ of habeas corpus. Williams, 529 U.S. at 412-13; 28 U.S.C. § 2254(d)(1). “Unreasonable” must be distinguished from “incorrect,” as the application of law to the facts must be more than incorrect in the federal court’s independent view, it must also be unreasonable. Williams, 529 U.S. at 410-11. Finally, a petition may be granted where the adjudication of the claim in state court resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In addition, the F10 state court’s factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut “the presumption of correctness by clear and con- vincing evidence.” 28 U.S.C. § 2254(e)(1). When analyzing a claim that there has been an unreasonable application of federal law, the court must first consider whether the state court erred; only after making that determination may the court then consider whether any error involved an unreasonable application of controlling law within the meaning of § 2254(d). Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.), cert denied, 121 S. Ct. 340 (2000). b. Procedural Default Respondent contends the first five claims‘ raised in the instant petition are procedurally barred from federal review. Petitioner presented these claims in a second habeas corpus petition to the California Supreme Court on April 9, 1999. The California Supreme Court denied the petition citing In re Clark, 5 Cal. 4th 750 (1993); In re Robbins, 18 Cal 4th 770, 780 (1998); and In re Waltreus, 62 Cal.2d 218, 225 (1965). : * Respondent discusses only five of the first six claims, consolidat- ing claims two, three, and four: (2) constructive denial of effective assistance of counsel through failure to develop a candid attorney-client relationship; (3) conflict of interest based on violation of attorney-client privilege; and (4) conflict of interest because of Counsel’s relationship with the Fresno District Attorney’s Office and Police Department. F1l1 There are limitations as to when a federal court should invoke procedural default and refuse to evaluate the merits of a claim because the petitioner violated a state’s procedural rules. First, procedural default can only block a claim in federal court if the state court “clearly and expressly states that its judgment rests on a state proce- dural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). For California Supreme Court decisions, this means the court must specifically have stated that it denied relief on a procedural ground. Yist v. Nunnemaker, 501 U.S. 797, 803 (1991); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1993); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1991). If the California Supreme Court denies a peti- tioner’s claims without any comment or citation, the federal court must consider it a decision on the merits. Hunter, 982 F.2d at 347-48. Second, a federal court may only impose a procedural bar on claims if the procedural rule that the state used to deny relief is “firmly established and regularly followed.” O'Dell v Thompson, 502 U.S. 995, 998 (1991) (statement of Blackmun joined by Stevens and O’Connor respecting the denial of certiorari); Ford v. Georgia, 498 U.S. 411, 423-24 (1991); James v. Kentucky, 466 U.S. 341, 348-51 (1984); Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997); Calderon v. United States Dist. Court (Bean), 96 F.3d 112, 129 (9th Cir. 1996). A federal court may still consider a procedurally defaulted claim if the petitioner can demonstrate (1) cause for the default and actual prejudice resulting from the alleged violation of federal law, or (2) a fundamental miscarriage of justice. Harris, 489 U.S. at 262. In the instant petition, the Court declines to address the proce- dural default argument and will analyze the merits of the petition. F12 DISCUSSION I. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner’s first eight claims are based on ineffective assistance of counsel. A claim ‘of ineffective assistance of counsel constitutes a claim of denial of the Sixth Amend- ment right to counsel, which guarantees not only assis- tance, but effective assistance of counsel. Strickland uv. Washington, 466 U.S. 668, 686 (1984). The standard for judging any claim of ineffectiveness must be whether counsel’s actions so undermined the proper function of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. In a petition for writ of habeas corpus alleging ineffec- tive assistance of counsel, the court must consider two factors. First, the Petitioner must show that counsel’s performance was deficient, requiring a showing that counsel made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The Petitioner must show that counsel’s representation fell below an objective standard of reasonableness. Jd. at 688. The Petitioner must identify counsel’s alleged acts or omissions that were not the result of reasonable professional judg- ment considering the circumstances. Id.; see also United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). Judicial scrutiny of counsel’s performance is highly deferential. A court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Sanders y. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994). Second, Petitioner must show that counsel’s errors were so egregious as to deprive petitioner of a fair trial, F13 one whose result is reliable. Strickland, 466 U.S. at 687. Petitioner must establish 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 is a probability sufficient to under- mine confidence in the outcome.” Id. at 694; see also Williams, 529 U.S. at 416-17; Jackson v. Calderon, 211 F.3d 1148, 1154 (9th Cir. 2000); Laboa v. Calderon, 224 F.3d 972, 980-81 (9th Cir. 2000). A court need not deter- mine whether counsel’s performance was deficient before examining the prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. Since it is necessary to prove prejudice, any deficiency that does not result in prejudice must necessarily fail. A. Attorney-Client Privilege Petitioner alleges ineffective assistance of counsel based on Trial Counsel’s alleged breach of the attorney- client privilege by revealing, or causing others to reveal, information that was the subject of confidential communi- cation between Petitioner and Trial Counsel. Petitioner asserts that Trial Counsel had an affirmative duty to advise him of the nature and scope of the attorney-client privilege, to inform him regarding the legal ramification of every disclosure, and to seek Petitioner’s consent prior to each disclosure, which he failed to do. The attorney-client privilege is an evidentiary privi- lege that provides for a client to refuse to disclose, and to prevent another from disclosing, a confidential communi- cation between the client and his/her lawyer. Cal. Evid. Code § 954; Fed. R. Evid. 501. This privilege applies to communications which are intended to be confidential, F14 between an attorney client, for the purpose of obtaining legal assistance. Fisher v. United States, 425 U.S. 391, 403 (1976); see also, Cal. Evid. Code § 952, and § 953; People v. Gionis, 9 Cal. 4th 1196, 1207-8 (1995). The purpose of the evidentiary privilege is to safe- guard the confidential relationship between a client and counsel so as to promote full and open disclosure of facts and tactics surrounding the case. People v. Flores, 71 Cal. App. 3d 559, 563 (1977). Without the ability to make a full disclosure of the facts to the attorney, the client risks inadequate representation: “‘Unless he makes known to the lawyer all the facts, the advice which follows will be useless, if not misleading.... ’” City & County of San Francisco v. Superior Court, 37 Cal. 2d 227, 235 (1951). . Thus, by encouraging complete disclosure, the attorney- client privilege enables the attorney to provide suitable legal representation. Jd. The privilege may be waived by the client who, with- out coercion, consents to disclosure of the privileged communication. Cal. Evid. Code §912(a). Consent to disclosure is manifested by any statement, or other con- duct, of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. Jd. When a party asserts the attorney-client privilege, it is incumbent upon that party to prove The preliminary fact that a privilege exists. Ralls v. United States, 52 F.3d 223, 225 (9th Cir. 1995); see also State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997). The party claiming privilege has the burden to show that the communication sought to be suppressed falls within F15 the terms of the statute. D.I. Chadbourne, Inc. v. Superior Court, 60 Cal.2d 723, 729 (1964). Thus to show a violation of attorney-client privilege, Petitioner must show that the communications were confidential, made by a client, to an attorney, for the purpose of obtaining legal assistance or advice. The attorney-client privilege is an evidentiary rule and not a constitutional right. See Maness v. Meyers. 419 U.S. 449, 466 n.15 (1975); Clutchette v. Rushen. 770 F.2d 1469, 1471 (9th Cir. 1985). In the instant petition, Peti- tioner alleges that Trial Counsel violated the attorney- client privilege and thus violated the Sixth Amendment right to counsel. However, while a violation of attorney- client privilege, if proven, may be a violation of ethical canons, it is not prima facie evidence of unreasonable or incompetent assistance of counsel.’ In order to make a successful ineffective assistance of counsel claim, Peti- tioner must show that the revelation of reformation covered by attorney-client privilege was outside the broad scope of reasonable and competent behavior and that these errors resulted in prejudice to Petitioner’s defense. 1. Mismanagement of Information Covered by Attor- ney-Client Privilege. Petitioner’s first claim centers on the statements made by Petitioner to Jerry and Kathy Hamilton on the * Petitioner does not cite, nor can this Court find any statement of law which holds that counsel has an affirmative duty to inform his client of the protections of attorney-client privilege before seeking consent to disclose the privileged information. F16 evening of January 11, and statements made to his attor- ney on the morning of January 12, 1993. This claim is set out in four sub-claims: (a) disclosure of the location of Susan’s body by Trial Counsel; (b) statements by Jerry Hamilton regarding privileged communications; (c) ques- tions regarding Petitioner’s state of mind leading up to his testimony; and (d) disclosure of privileged statements by Petitioner to his parents the night before his meeting with his attorney. On the evening of January 11, 1993, Petitioner had dinner with his mother and step-father, Kathy and Jerry Hamilton. Jerry Hamilton testified that at this dinner Petitioner told him and his wife that Petitioner had found Susan in the garage, where she had apparently committed suicide. (R.T. at 117). Mr. Hamilton stated that Petitioner said that he and Susan had had a fight and he had left the house with his son. When he returned Petitioner opened the garage door, found Susan on the floor with a cord around her neck, and he had then closed the garage door. (R.T. at 117-18). Reed Harris, Petitioner’s AA sponsor, testified that on the night of January 11, 1993, at approximately 10 p.m. (the same night as the dinner with the Hamilton’s) Peti- tioner called and asked to meet with him at the Hamiltons’ home. (R.T. at 162-63). After he arrived they (Jerry Hamil- ton, Petitioner, and Reed Harris) drove to Petitioner’s home. (R.T. at 163). Harris testified that once in his own home, Petitioner told him that Susan had found his fourth step ,-aperwork, they got into an argument, Petitioner left the house, and when he returned he found his wife dead on the floor of the garage. (R.T. at 164). Petitioner told Harris that Susan had committed suicide. (R.T. at 164). Harris also testified that Petitioner told him that rather a Om sath it beet o ow F17 than call the police Petitioner felt if he hid the body people would forget. (R.T. at 165). The next morning, January 12, 1993, Petitioner and his step-father, met with Trial Counsel for the first time. During this meeting Petitioner told Trial Counsel that his wife’s body was in the spare bedroom/computer room of Petitioner’s home. Petitioner and/or his step-father also told Trial Counsel that the police were currently searching Petitioner’s home. (Kurtz Decl. p.2, Hamilton Decl. p.2). Petitioner states that Trial Counsel called Petitioner’s home twice during that meeting and spoke with police officers (Kurtz Decl. p. 2), and during the second call put his hand over the phone and asked Petitioner “Should we tell them?” Trial Counsel then told the officers searching the home where the body was located. (Hamilton Decl. pp. 2-3). Jerry Hamilton states that he doesn’t remember how Petitioner responded but that Petitioner did not object. (Hamilton Decl. p.3). a. Disclosure of Statements by Petitioner to his Parents.° Petitioner alleges that the statements made to his parents at dinner on January 11, 1993, the night before he met with his attorney, are covered by attorney-client privilege and that Trial Counsel erred by failing to assert that privilege regarding the testimony of Jerry and Kathy Hamilton. Petitioner states in his declaration that prior to the dinner with his mother and step-father he had re- tained counsel but was unable to disclose the facts of his * This sub-claim appears as Petitioner’s “1(d) .” F18 case because he was so depressed, verging on suicidal. Petitioner felt that only if one or both of his parents came to the meeting would he be able to tell Trial Counsel the necessary facts. Thus, Petitioner concludes his statements at the January 11th dinner were “reasonably necessary for the transmission of the information [to the lawyer] or the accomplishment of the purpose for which the lawyer [was] consulted” under California Evidence Code § 952. (2AP at 27-28). Petitioner cites Insurance Co. of North America uv. Superior Court, 108 Cal. App. 3d 758, 771 (1980), to support his proposition that privilege protects communica- tions to parties other than counsel and client. (2AP at 27). Petitioner’s reasoning is in error. In Insurance Co. of North America, the court was asked to decide if prejudice was waived by the presence of closely affiliated parties during an attorney-client meeting. Jd. at 762. Here, the question is not whether the presence or absence of Jerry and Kathy Hamilton destroyed privilege but whether the statements made to them, the night before his meeting with Trial Counsel, are covered by the attorney-client privilege. California case law upholding the extension of the privilege to communications made to parents and “for the transmission of information” focuses on the needs of minor children, where the parent is acting under the direction of counsel. Jesse Richard De Los Santos v. The Superior Court of Los Angeles County, 27 Cal. 3d 677, 683-84 (1980) (holding that the parent, of minor child, obtaining infor- mation for the purpose of transmitting to attorney may assert privilege). Petitioner is not a minor, and he was not acting pursuant to the advice or direction of counsel at the January 11th dinner, therefore Petitioner’s statements to his parents at dinner do not fall within the statutory St Ui AAS tee, enero mem: F19 scheme. As they cannot survive the privileged communica- tion analysis, they are non-privileged statements. Further they are the admissions of a party and are therefore exempt from the hearsay rule and would be admissible in court. Cal. Evid. Code § 1220. Even if these communications were privileged, Peti- tioner waived the privilege by disclosing the same infor- mation to Reed Harris. Kaiser Foundation Hosp. v. Superior Court, 66 Cal. App. 1217, 1226 (1998) (citing Cal. Evid. Code § 912(a)). Reed Harris testified to these state- ments at trial and Petitioner does not claim that Harris’ testimony was privileged in any way. Thus, by revealing privileged information to a third party Petitioner waived any privilege that may have existed. b. Disclosure of the Location of Body of the Vic- tim.’ Petitioner alleges that Trial Counsel erred by calling the police and telling them the location of his wife’s body. Petitioner argues that he was not advised that he had the right to prevent Trial Counsel from disclosing this infor- mation. Petitioner further alleges that he did not actually consent to this disclosure as he made no response when Counsel asked if they should tell the police where to find the body. (Kurtz Decl. p.2). A defendant cannot prevail on an ineffective assis- tance of counsel claim for counsel’s action that occurred prior to when the constitutional right to counsel attaches. " This sub-claim appears as Petitioner’s “1(a).” F20 Wainright v. Torna, 455 U.S. 586, 587-88 (1982) (holding no claim where petitioner had no constitutional right to counsel at a state post-conviction stage); Claudio v. Scully, 982 F.2d 798, 801-2 (2d Cir. 1992) (finding no claim where counsel advised surrender and confession, before advising client of the possible charges or defenses to murder). The protections of the Sixth Amendment right to counsel are not triggered by the mere existence of an attorney-client relationship, but rather by the initiation of adversarial judicial proceedings. Maine v. Moulton, 474 U.S. 159 (1985); see also Moran v. Burbine, 475 U.S. 412, 430 (1986) (“by its very terms [the Sixth Amendment] is applicable only when the Government’s role shifts from investigation to accusation”). The Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. United States uv. Gouveia. 467 U.S. 180, 187 (1984). The disclosure of the location of Susan’s body took place before Petitioner was arrested and before formal charges had been filed. Peti- tioner was under investigation but was not subject to adversarial judicial proceedings. Therefore, the Sixth Amendment right to counsel had not yet attached, and there can be no ineffective assistance of counsel claim based on these facts. Even if the Sixth Amendment right to counsel had attached, Petitioner has not shown that Trial Counsel’s actions where either unreasonable or unethical. The declaration of Jerry Hamilton, provided by Petitioner, states that Trial Counsel did ask if they should tell the police where the body was located. Petitioner was clearly presented with the opportunity to say “no”. Even if he was ignorant of the law, he was asked what he wanted to do. F21 Presented with this choice he did not object to the disclo- sure. These actions can reasonably be interpreted as consent to a waiver of attorney-client privilege. Finally, Petitioner cannot and has not shown preju- dice. Even if Trial Counsel had not disclosed the location of the body to the police, as the police were in the process of searching the house, and they would have found the body anyway. Finding the body in the house would have allowed them to link Petitioner to the body. Further, Petitioner had already told his mother, step-father and AA sponsor Reed Harris that he knew his wife was dead. He told Reed Harris that he had hidden the body. Petitioner had already disclosed to non-privileged sources that he knew (inferen- tially) where the body was located. Therefore, Trial Coun- sel’s disclosure of the location of the body was non- prejudicial. c. Testimony by Jerry Hamilton Regarding Privi- leged Communications’. Petitioner contends that the testimony by his step- father Jerry Hamilton during the preliminary hearing and trial revealed the details of the meeting between himself and his counsel. Petitioner contends that Counsel erred by not claiming attorney-client privilege at either time to prevent this testimony. * This sub-claim appears as Petitioner's “1(b).” In this claim Petitioner levels allegations of violation of attorney- client privilege at both the preliminary hearing and the trial. The Court has only pages 20-25 of the clerk’s transcript. As the statements made at the preliminary hearing are not themselves in dispute, the Court will proceed without further review of that record. F22 Jerry Hamilton testified at the preliminary hearing that at dinner on the night of January 11, Petitioner told him and his wife that Susan Kurtz was dead. (CT at 22). He also testified that this was essentially the same story that Petitioner had told his attorney on the morning of January 12, 1993. (CT at 23-24). Petitioner contends that prior to Trial Counsel’s cross-examination, all that Hamil- ton had testified to was that Petitioner had said he knew his wife was dead. It was Trial Counsel’s questions to Hamilton which brought before the court the story of suicide and Petitioner’s knowledge of the location of the body. Accepting, without finding, that this was not an objectively reasonable performance on the part of Trial Counsel, Petitioner cannot show prejudice. The police had found Susan’s body hidden in a closet in Petitioner’s house. They had a pathologist’s testimony stating that the evidence was inconsistent with suicide. They also had Jerry Hamilton’s testimony regarding the non-privileged statements by Petitioner that he knew his wife was dead, and he had found her body in the garage. As Respondent points out, the purpose of a preliminary hearing is only to determine whether there is probable cause to bring charges. Absent the contested testimony, the judge could still have reasonably found probable cause on these facts. Thus no prejudice can be found. At trial Hamilton testified as a witness for the prose- cution. During cross-examination by Trial Counsel, Hamil- ton said that on January 12th, while present at a meeting between Petitioner and Trial Counsel, he heard Petitioner tell Trial Counsel where Susan’s body was located. He then saw Trial Counsel call Petitioner’s home, and heard Pa aa OO tal aie Ro acct ~ Ea ONE TNS NINA, SEEN NORE RE ARTI ais ae enn th Meee et F23 him tell officers to look in the computer/bedroom closet. (RT at 124-25). On redirect the prosecutor questioned Hamilton further about what was said during the meeting between Petitioner and Trial Counsel. (RT at 134). Hamil- ton testified that Petitioner told Trial Counsel that Susan had committed suicide. Id. Petitioner states that this was a violation of the attorney-client privilege and resulted in ineffective assis- tance of counsel. Again, accepting, without finding, that Trial Counsel’s performance was objectively unreasonable, Petitioner cannot show prejudice. Petitioner alleges that prejudice results because his story regarding Susan committing suicide did not need to come out. Had Trial Counsel effectively limited the scope of Jerry Hamilton’s testimony to exclude the privileged material, Petitioner contends, he could simply have told his story regarding the physical confrontation between himself and Susan Kurtz. Petitioner’s argument is flawed. He had already told his mother, step-father and Reed Harris that he had found Susan dead in the garage from apparent suicide. All of those communications were outside the scope of attorney- client privilege. Petitioner’s lies would still have come before the jury through these three witnesses. d. Testimony regarding Petitioner’s state of mind leading up to trial testimony’ Petitioner alleges that Trial Counsel farther erred by allowing Petitioner to testify about the circumstances leading up to his testimony at trial. At trial Petitioner * This sub-claim appears as Petitioner’s “1(c).” F24 testified that it was a physical struggle and not suicide which caused Susan’s death. Petitioner, in response to Trial counsel’s questioning, testified that his current testimony differed from his previous statements to his friends and family because Trial Counsel told him his story of Susan’s suicide didn’t fit with the facts uncovered prior to trial. Trial counsel also asked Petitioner if he had lied to his attorney at their initial meeting. Petitioner contends that these questions and the testimony they elicited were privileged information. Petitioner is correct that the substance of these statements were privileged communications. However, by testifying about these statements Petitioner tacitly, if not expressly, consented to waive the privilege. It was Peti- tioner’s right and decision to take the stand, and he makes no allegations of coercion concerning this choice. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Petitioner’s allegations call into question the underlying theory of Trial Counsel’s defense case on Petitioner’s behalf. The initial theory of the defense case, based on the information provided by Petitioner, was that Petitioner was not responsible for Susan’s death but rather she had killed herself and that Petitioner’s feelings of guilt and trauma had prevented him from notifying the police immediately. At trial the theory changed, probably, as Petitioner points out, because the pathologist’s testi- mony at the preliminary hearing ruled out suicide. The defense theory was that, suffering from Post Traumatic Stress Disorder, Petitioner was unable to admit the truth —E———— F25 to himself or the authorities, and that now he would tell everyone the truth. As part of this defense, Trial Counsel put all of the lies on the table to lend credibility to this “clean breast” theory. This included Petitioner’s inability to admit even to his own attorney what had really hap- pened. Counsel’s approach when viewed piece by piece may seem unorthodox but not beyond the scope of reason- able or competent given the facts of the case and the information provided, piece meal, by Petitioner to his Counsel. As these actions were not unreasonable, the Court need not reach the issue of prejudice. In sum, Petitioner’s first claim of ineffective assis- tance of counsel based on mismanagement of information covered by the attorney-client privilege must fail because: (1) statements to Petitioner’s parents were not covered by the attorney-client privilege; (2) the Sixth Amendment right to counsel had not yet attached when Trial Counsel revealed the location of Susan’s body, nor were his actions prejudicial; (3) Jerry Hamilton’s testimony was not preju- dicial to the defense; and (4) Petitioner waived the attor- ney-client privilege with regard to his own testimony. 2. __ Violation of Attorney-Client Privilege Resulting in Failure to Present Exculpatory Evidence Re- garding Petitioner’s State of Mind Following Murder. Petitioner alleges that Trial Counsel’s abuse of the attorney-client privilege had a chilling effect upon Peti- tioner’s ability to trust and to confide in him, which resulted in constructive denial of effective assistance of counsel. Petitioner argues that he is constitutionally entitled to an attorney-client relationship in which he can fully disclose the facts of his case in order to seek legal F26 advice. (ZAP at 34). Petitioner states that he committed certain financial crimes, and that his fear of these crimes being discovered prevented him from calling the police when Susan died. (2AP at 32). Petitioner did not share this information with Trial Counsel because the disclosure of the location of his wife’s body and his step-father’s testi- mony at the preliminary hearing led Petitioner to distrust him. (2AP at 33-34). Thus, Petitioner argues, Trial Coun- sel’s alleged violation of the attorney client privilege resulted in complete denial of Petitioner’s Sixth Amend- ment right and prejudice should be presumed. Insofar as this claim rises or falls upon Petitioner’s prior arguments that there has been a violation of the attorney-client privilege, this claim fails because the Court has found no violation of the attorney-client privilege. The Court otherwise finds the substance of Petitioner’s argu- ment to be without merit. The Sixth Amendment does not guarantee a “mean- ingful relationship” between an accused and his publicly appointed counsel, but merely a right to competent coun- sel. Morris v. Slappy, 461 U.S. 1, 14 (1983). Individuals who can afford to retain counsel have a qualified right to obtain counsel of their choice, Releford v. United States, 288 F.2d 298, 301 (9th Cir. 1961), and privately retained attorneys are held to the same standard as public defend- ers regarding a criminal defendant’s Sixth Amendment right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 336. 334-35 (1980). Thus, Petitioner is in error that he has a constitutional right to a relationship of trust and candor with his attorney, rather his constitutional right is to competent representation, consequently preju- dice cannot be presumed. F27 In the alternative, failure to request a change or substitution in counsel before, or during trial, is a waiver of any claim of ineffective assistance of counsel based on the breakdown of the attorney-client relationship. Thomas v. Wainwright, 767 F.2d 738, 743 (11th Cir. 1985). In the instant case, Petitioner claims to have been alarmed at Counsel’s trial tactics (i.e., disclosure of information that Petitioner deemed confidential) as early as January 12, 1993, when Trial counsel told the police where Susan’s body was, and as late as the date of the preliminary hearing. Petitioner had through late August of 1993 in which either to obtain new counsel or, at the very least, to notify the trial court that Petitioner was unhappy with counsel and needed time to obtain new counsel. Petitioner failed to take any action to alert the court or Counsel of his feelings. Therefore, this claim must fail. B. Conflict of Interest Standard Petitioner’s claims three and four allege ineffective assistance of counsel based on conflict of interest. First, Petitioner claims that Trial Counsel’s mishandling of privileged communications exposed him to a potential malpractice action, thus creating a conflict of interest. Second, Petitioner claims that Trial Counsel’s ongoing relationship with the Fresno Police Department and the District Attorney’s Office created a conflict of interest, thereby affecting his ability to defend Petitioner’s interests effectively. (2AP at 38-50). Under the Sixth Amendment, a criminal defendant has the right to be represented by counsel whose loyalties are undivided. Wood v. Georgia, 450 U.S. 261, 271 (1981); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988). “To F28 establish a Sixth Amendment violation based on a conflict of interest, a defendant must show (1) that counsel ac- tively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” Mannhalt, 847 F.2d at 579 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). Actual conflict must be proven “through a factual showing on the record.” Morris v. California, 966 F.2d 448, 455 (9th Cir. 1992). To show adverse effect, Petitioner “need only show that some effect on counsel’s handling of particular aspects of the trial was ‘likely.’ United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (citing Mannhalt 847 F.2d at 583). Adverse effect is not the same as showing prejudice, but rather requires factual assertions regarding particular aspects of the trial that may have been handled differ- ently. Id. Both Mannhalt and Miskinis pointed to specific areas of defense that could have been pursued but weren’t, presumably because of the attorney's conflict of interest. Mannhalt, 847 F.2d at 581; Miskinis, 966 F.2d at 1268. Therefore, a petitioner must show that an actual conflict existed and point to specific areas where that conflict may have affected counsel’s representation. 1. Trial Counsel had Conflict of Interest Due to Mis- management of Attorney-Client Privilege Com- munications. Petitioner alleges that Counsel’s violation of the attorney-client privilege” resulted in an actual conflict of Here Petitioner refers to errors alleged in ground I: disclosure of the location of the body; Jerry Hamilton’s testimony regarding the (Continued on following page) ee ee ae ae eee De be SDA TAAL RO PE AED et at Ae fh On eaten nes F29 interest which deprived Petitioner of effective assistance of counsel. Petitioner contends that had he been informed of the nature and scope of attorney-client privilege, he would never have waived the privilege. Petitioner contends that Trial Counsel’s violation of attorney-client privilege ex- posed Counsel to a potential malpractice suit, negative publicity, and loss of client fees, all of which Trial Counsel must have known. (2AP at 38-39). This threat to Trial Counsel created a conflict of interest which impaired Counsel’s performance by preventing him from disclosing to Petitioner the scope of the attorney-client privilege and requiring continued violation of the privilege." Petitioner cites two cases for the proposition that where malpractice is alleged, conflict of interest will be found, Lopez v. Sculley, 58 F.3d 38, 41 (2d Cir. 1995) and United States v. Shorter 54 F.3d 1248, 1252-53 (7th Cir. 1995). However, these cases are factually distinguishable from the present case. In both of these cases the defen- dant/client alleged ineffective assistance of counsel or acts which constituted malpractice during the course of their criminal trial or sentencing while counsel actively repre- sented them. These accusations had the double effect of putting their respective attorneys in the position of deny- ing the charges, contradicting their clients and violating their duty of loyalty, thus creating an actual (as opposed to attorney-client meeting of January 12; Jerry and Kathy Hamilton’s testimony about communications during the dinner on January 11; and Petitioner’s own testimony regarding communications between himself and counsel. (2AP at 40). " This Court initially notes that insofar as the Court has already found no violation of the attorney-client privilege, this claim accord- ingly has no merit. F30 potential) conflict. Lopez, 58 F.3d at 40-41; see also Shorter, 54 F.3d at 1252-53. In the present case the Petitioner did not accuse his counsel of malpractice or ineffective assis- tance until after the trial and sentencing were complete. Tous, Petitioner has at most established a potential conflict of interest between himself and counsel. Where only a potential conflict of interest exists, Petitioner must show that counsel’s fictions were unrea- sonable and prejudicial to his defense. Strickland, 466 U.S. at 692 (stating that prejudice is presumed only where there is actual conflict of interest). Without a showing of prejudice, a “theoretical” or “potential” conflict is insuffi- cient to constitute actual conflict; instead, Trial Counsel must have actively represented conflicting interests. Bonin v. Calderon, 59 F.3d 815, 827 (9th Cir. 1995). Petitioner has not made such.a showing, and thus this claim must fail. 2. Conflict of Interest on the Part of Trial Counsel Due to Prior Favorable Treatment from Law En- forcement. Petitioner alleges that Trial Counsel’s performance was impaired by actual conflict of interest caused by the special treatment he received from the District Attorney’s Office and the Fresno Police Department. Petitioner contends that during his trial, Trial Counsel was negotiat- ing for a consultant position for which he would be hired in 1995. Petitioner further contends that Trial Counsel was beholden to the District Attorney’s Office and the Fresno Police Department for favorable treatment that he had mn A CS llth oS ert ie F31 received and would continue to need because of his alco- holism and penchant for drunk driving. (2AP at 41),” Petitioner’s allegations at failure to disclose alleged negotiations for future employment by Trial Counsel constitutes actual conflict are in error. Mere acceptance of, or application for, a job is not a per se conflict of interest. United States v. Unruh, 855 F2d 1363, 1379 (9th Cir. 1987). United States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1998) (holding that serious candidacy for a position with the State will not create a conflict of interest as a matter of law). Nor will the failure of counsel to notify his or her client that he or she is being considered for such a position result in actual conflict as a matter of law. Horton, 845 F.2d at 1419. Petitioner must show that “the defense attorney was required to make a choice advancing his own interest to the detriment of his client’s interests.” Jd. Here, Trial Counsel did not take a position with the District Attorney’s Office until two (2) years after the close of Petitioner’s case and after he had retired from private practice. Further, the position involved Trial Counsel instructing new attorneys on trial techniques, not actually advocating for the prosecution. (2AP Ex. 7 at 1). Thus, this fails to meet the factual elements of the cases Petitioner cites, and he fails to establish more than a potential prejudice. ’ Similarly, allegations of Trial Counsel’s criminal record and alleged special treatment alone are not enough “ The Court notes that nowhere in the 2AP does Petitioner allege Trial Counsel was under the influence of alcohol during any of the Petitioner’s criminal proceedings. F32 to demonstrate actual conflict. United States v. Baker, No. 99-56718, 2001 U.S. App. LEXIS 5620, at *9 (9th Cir. April 5, 2001) (holding that bare allegation of conflict based on attorney's cooperation and plea on unrelated charges in another federal district court insufficient for actual conflict analysis). Petitioner argues that his case is analogous to Mannhalt, in which counsel representing a client charged with robbery and possession of stolen foods was accused by a prosecutorial witness (and accomplice) of receiving stolen goods. Jd. at 578. In the instant case, Trial Counsel had been arrested previously by the same agency, but was not implicated personally in this case and was not facing charges or investigation during the Petitioner’s criminal proceedings. (2AP, Ex. 7 at 2-6). Petitioner has not shown that Trial Counsel’s prior crimes put his interest in direct conflict with Petitioner in this case. As Petitioner has failed to establish that either of these allegations rise to the level of an actual conflict, and he has failed to demon- strate prejudice, this claim must fail. C. Failure to Present Evidence to Rebut Motive Theory. Petitioner alleges that Trial Counsel erred by failing to present evidence to rebut the prosecution’s motive theory. According to Petitioner, the prosecution argued that Petitioner resented his wife for removing him from the business checking account and feared losing his business to her in a divorce proceeding. (2AP at 51). He asserts that the only motive presented by the prosecution was Petitioner’s alleged financial concerns. Petitioner further alleges that but for Trial Counsel’s failure to rebut the motive theory Petitioner would not have been con- victed. Pale ne Leta lt A kl 2 a Rs YB. + @Rey Rane ee F33 Petitioner contends that this motive could have and should have been rebutted with evidence of his separate property assets. Petitioner alleges that Trial Counsel could have easily done away with any financial motive through Petitioner’s accountant, who testified as a character witness, and who could have also testified that Petitioner’s separate property was significantly larger than his stake in the community property and thus there was no finan- cial incentive for him to kill his wife.’ Petitioner argues that if this evidence had been presented, the prosecution’s motive theory would have been destroyed. Petitioner points out several witnesses who testified that in Decem- ber 1992, Petitioner and Susan appeared happily recon- ciled and looking forward to the birth of their second child. (2AP at 52). Petitioner’s prejudice argument rests on the fact that the California Appellate Court determined that the motive theory was the “lynch pin” of the prosecution’s case as to determining that premeditation and deliberation for first degree murder existed. (2AP at 57). Petitioner states that he told Counsel about his accountant. Thus, it was Coun- sel’s failure to investigate or tactical decision not to pre- sent this evidence that must be evaluated as reasonable or unreasonable. (2AP at 55). Assuming, without deciding, that Trial Counsel's failure to put on this evidence was outside the wide scope of reasonable and competent representation, the Court “ The Court notes Carl Campbell, Petitioner's CPA, did not provide any representation as to the net worth of petitioner’s separate property at the time of Susan’s death. See 2AP, Ex. 4 ( Campbell Dec!.). F34 turns to prejudice. Review of the trial transcript reveals that financial incentive was only a portion of the motive presented by the prosecution. The prosecution’s case also pr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1974%3A1. Public record. Not legal advice.