Post-Conviction Relief for Immigrants

 

There are many contexts in which original counsel is disqualified by a conflict of interest from rendering effective assistance of counsel, if new counsel would be obligated to raise the issue of original counsel’s ineffectiveness.  For example, if original counsel represents the defendant on appeal, s/he may render ineffective assistance by failing to raise the issue of his or her own ineffectiveness at trial.  Similarly, trial counsel may render ineffective advice not to appeal, even though the defendant has a viable appeal issue of ineffective assistance of trial counsel in the trial court.  Counsel cannot be expected to identify his or her own errors, or to appeal on those grounds, because of a conflict of interest.[266]

 

            The Ninth Circuit held that an attorney was subjected to “an inherent conflict of interest” when the district court forced trial counsel to prove his own ineffectiveness at an evidentiary hearing on a motion for a new trial.[267]  In Del Muro, the defendant filed a Rule 33 motion for new trial, claiming trial counsel had rendered ineffective assistance by failing to interview or subpoena witnesses suggested by Del Muro, and requested that the district court appoint substitute counsel to present the motion on his behalf, but the district court denied the request.  The court held: “There was an actual, irreconcilable conflict between Del Muro and his trial counsel at the hearing on the motion for new trial.  The interests of counsel were diametrically opposed to those of Del Muro.”[268]

 

            The standard of reversal for ineffective counsel is the same on appeal as for inadequate representation in the trial court.[269]  An appellate attorney confronting the necessity of demonstrating, on appeal, his or her own ineffectiveness at trial faces the same conflict of interest as an attorney facing the same situation at a hearing in the trial court.  They face an identical “actual, irreconcilable conflict” in which the “interests of counsel were diametrically opposed to those of [the client]” and counsel “was burdened with a strong disincentive to engage in vigorous argument and examination, or to communicate candidly with his client.  The conflict was not only actual, but likely to affect counsel’s performance.”[270]

 

            California law is in accord.  In In re Fountain,[271] an attorney was timely retained to file a notice of appeal, yet failed to file a notice of appeal until too late, and then filed an inadequate notice which did not meet the requirements of California Penal Code § 1237.5 or California Rules of Court, rule 31(d).  He later filed a petition for habeas corpus concerning this issue.  The court stated:

 

This case presents the paradigm of why an attorney who is caught in a conflict of interest is unable to provide effective assistance of counsel.  The petition was verified by the attorney and seeks relief from the consequences of his failure to act.  Rather than advocate Fountain’s cause, the petition seeks to establish there was no attorney‑client relationship until after the appeal time had run.[272]

 

The court held: “We conclude the attorney is, and will continue to be, in such conflict of interests with Fountain that he cannot effectively represent Fountain on his appeal.”[273]

 

            Moreover, in People v. Bailey,[274] the state court of appeal held there is an inherent conflict of interest when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal: “Counsel is in the untenable position of urging his own incompetency.”[275]

[266] See Billy-Eko v. United States, 509 U.S. 901, 113 S.Ct. 2989 (1993); Barker v. United States, 7 F.3d 629 (7th Cir. 1993).

[267] United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996).

[268] United States v. Del Muro, 87 F.3d at 1080 (reversing and remanding for new hearing with new, unconflicted counsel).

[269] United States v. Birtle, 792 F.2d 846 (9th Cir. 1986).

[270] United States v. Del Muro, supra, 87 F.3d at 1080.

[271] In re Fountain, 74 Cal.App.3d 715, 141 Cal.Rptr. 654 (1977).

[272] Id., at p. 719.

[273] Ibid.

[274] People v. Bailey, 9 Cal.App.4th 1252, 12 Cal.Rptr.2d 339, 340 (1992).

[275] Ibid.