Hammon v. WardHammon v. Ward
Petitioner-Appellant Glen Dale Hammon (“Petitioner“) was convicted in Oklahoma state court of possession of a controlled dangerous substance (“CDS“), possession of a firearm by a convicted felon, and possession of a firearm with a defaced or mutilated serial number, for which he was effectively sentenced to seventy years’ imprisonment. Petitioner filed a pro se
BACKGROUND
I. Factual Background
On October 19, 2000, Petitioner was driving through an Oklahoma City suburb in a vehicle with his brother, Demarcus Hammon, as the passenger, when Officer Hill of the Del City Police Department initiated a traffic stop of the vehicle because the brake lights were not working. Officer Hill approached the driver‘s side and asked Petitioner for his license and proof of insurance. After Petitioner stated that he had neither, Officer Hill returned to his patrol car to confirm that information with dispatch.
Once Officer Turner and Lieutenant Baker arrived as back-up, Officer Hill again approached the vehicle to arrest Petitioner for driving without a license and for an outstanding warrant. Officer Hill ordered Petitioner out of the car, informed him that he was under arrest, and placed him in handcuffs. Officer Hill searched Petitioner‘s person as part of that arrest and found nothing. Officer Turner removed Demarcus Hammon from the car, performed a pat-down search of him, and discovered nothing. Demarcus Hammon did not have any outstanding warrants, but the officers did not release the car to him because his license had also been suspended and the car was not insured.
Officers Hill and Turner thus conducted an inventory search of the vehicle. The officers first searched the driver‘s side of the vehicle and found nothing there. In searching the passenger‘s side, however, Officer Hill found a bag containing thirteen to fourteen gravel sized brownish-white rocks located in the cavity of the dashboard where the glove box would normally be located. Subsequent tests revealed the rocks to be crack cocaine. Underneath the passenger seat, the officers discovered a loaded semiautomatic handgun with a mutilated or defaced serial number.1 No other contraband was found inside the car. At that time, Demarcus
While in county jail, Glenn and Demarcus Hammon retained the same defense counsel to represent them. At some point before trial, trial counsel negotiated a plea bargain for Demarcus Hammon. Petitioner, unaware his brother had pleaded, rejected a plea offer of fifteen years in prison and proceeded to trial.
The State apparently sought to call Demarcus Hammon as a witness at Petitioner‘s trial, but it was unable to locate him. In its case-in-chief, the State‘s two main witnesses were Officers Hill and Turner, both of whom testified about the stop and subsequent search as well as their opinion regarding whether the amount of drugs found in the vehicle was for distribution or personal use.2 Without objection from trial counsel, Officer Hill testified that, based upon the amount of rocks found, the money found on Demarcus Hammon, the fact that neither Petitioner nor Demarcus Hammon exhibited signs of being under the influence of drugs, the absence of crack-use paraphernalia found in the car, and the presence of the gun, the drugs found in the vehicle were for distribution—as Officer Hill basically described, “the gun, the money, and the dope.” Officer Turner testified to essentially the same facts and opinions as Officer Hill, but he additionally testified, again without objection from trial counsel, that his opinion that the drugs were for distribution was based on the fact that the Hammon brothers were stopped in an area of town with heavy gang and drug activity.
Petitioner‘s trial counsel gave no opening statement.3 He called only one witness—Evan June Smith, Petitioner‘s mother. Ms. Smith testified that she visited Petitioner in jail and that he told her the gun was not his and that he did not know anything about the drugs. According to Ms. Smith, Petitioner also told her that, on the day he was arrested, he had planned to pick up Demarcus Hammon and then drive to her house. She further testified that the car driven by Petitioner did not belong to her, Petitioner, or Demarcus Hammon.
To rebut Ms. Smith‘s testimony about her son‘s statement that the gun was not his, the State confronted her on cross-examination with a letter Petitioner had written to then-District Attorney Bob Macy, which was read into the record by the prosecutor:
Mr. Macy, I am Glen Hammon. My birthday is January 17, 1976. I am accused ... with my brother, Demarcus Hammon, ... after being stopped in a car searched by officer [sic]. A firearm was found under the passenger side where Demarcus Hammon was sitting. He confessed to the firearm on the spot. This information should be written in [sic] police report. Why am I still charged with possession of firearm? Thank you for your time, respectfully yours, Glen Hammon.
At the conclusion of Ms. Smith‘s testimony, the defense called no other witnesses, Petitioner waived his right to testify on his own behalf, and the defense rested.
Although the State could not locate Demarcus Hammon and thus could not call him in its rebuttal case, it attempted to introduce Demarcus Hammon‘s plea paperwork. Specifically, the State wanted to read into the record a statement from the factual basis for the plea in which Demarcus Hammon admitted under oath that “I committed the crimes of possession of CDS and possession of a firearm while a passenger in an automobile driven by my brother, Glen Hammon; the gun was mine; the CDS belonged to both of us.” In response, Petitioner‘s trial counsel argued that if the factual basis for Demarcus Hammon‘s plea was read to the jury, then the jury should also simultaneously be informed that there was an agreement between Demarcus Hammon and the State that Demarcus Hammon would, in exchange for receiving a deferred sentence,4 inculpate Petitioner in the factual basis for his plea and testify against Petitioner at trial.
The exchange that followed between trial counsel (Mr. Jackson) and the trial court is particularly relevant to this appeal:
THE COURT: I don‘t see it in this portion of the paperwork. The part where they discuss the plea agreement it says, “Is their [sic] a plea agreement?” And it says, “Yes.” And then handwritten in—well, typed in, “What is your understanding of the plea agreement?” Handwritten in, “I‘m pleading guilty to Possession of CDS and Possession of a Firearm in exchange for a five-year deferred sentence....”
MR. JACKSON: In exchange for that statement—he‘s saying in exchange for that statement he received consideration. In other words, he was motivated to the statement be given [sic]. We have—
THE COURT: Well, he may or—I don‘t know.
MR. JACKSON: We have a right to inform the jury—we have the right to inform the jury [sic] any agreements [Demarcus Hammon] had with the district attorney that the court approved. It‘s like—isn‘t it like a jail house snitch or—
THE COURT: No, not at all. I mean, he‘s merely pleading guilty and—
MR. JACKSON: In considering [sic] of a five-year deferred.
THE COURT: Right.
MR. JACKSON: If [Demarcus Hammon] had not inculpated [Petitioner], [Demarcus Hammon] would not have gotten [a five-year deferred sentence].
THE COURT: I don‘t know. It doesn‘t say in here [the plea paperwork] that. I don‘t know if that‘s true or not. I don‘t know.
At this point, trial counsel instructed the trial court that he had a conflict of interest in this case because he had also represented Demarcus Hammon in negotiating the plea bargain:
MR. JACKSON: Well, I have a bit of a conflict of interest, Your Honor, in that I was the attorney [for Demarcus Hammon] as well.
THE COURT: That‘s your—
MR. JACKSON: And that‘s something I need to—
. . .
THE COURT: Well, I‘m asking about your discussions with the State of Oklahoma. Did the State of Oklahoma say
to you, Your Client, Mr. Demarcus Hammon, must inculpate his co-defendant [Petitioner] in return for this recommendation of a five-year deferred [sentence]? MR. JACKSON: That‘s correct.
THE COURT: You‘re saying that the State of Oklahoma said that?
MR. JACKSON: On the CDS charge. And it was a negotiated matter, Your Honor....
. . .
THE COURT: Okay. And you negotiated that with who? Paulette Stewart? She‘s the one who took the plea.
MR. JACKSON: I believe that‘s right. And Mr. Pate, I believe. There were—
MR. SIDERIAS [Assistant District Attorney]: I asked Mr. Pate about this matter and he has no recollection of it. That‘s not to say it didn‘t happen; its just to say he‘s probably negotiated a lot of cases since then.
. . .
MR. JACKSON: Your Honor, there was much discussion about this because—I represented both of them, and we were getting close to a point during the negotiations where if their interest [sic] became adverse, I would have to—certain decisions in terms of control. And the district attorney knew that. That was part of the negotiation.
Despite this lengthy discussion, the State dropped its request to introduce Demarcus Hammon‘s statements, and the case was ultimately submitted to the jury without Demarcus Hammon‘s testimony or plea statements.
II. Procedural Background
The Oklahoma jury convicted Petitioner of possession of a CDS (crack cocaine) in violation of
The state court appointed Petitioner new counsel to pursue a direct appeal of his conviction and sentences. On direct appeal, Petitioner‘s counsel raised two errors, only one of which was substantive: 1) evidence adduced at trial was insufficient to sustain the State‘s burden of proof beyond a reasonable doubt; and 2) the Judgment and Sentence document incorrectly reflected a conviction under
Petitioner then filed a pro se petition for federal habeas corpus relief based on the following grounds: ineffective assistance of trial counsel due to a conflict of interest; ineffective assistance of trial counsel due to trial counsel‘s performance; prosecuto
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) applies to this appeal because Petitioner filed his
I. Procedural Bar
The OCCA found that Petitioner had procedurally defaulted his ineffective trial counsel claims pursuant to
Petitioner properly raised his claim alleging appellate counsel was ineffective for failing on direct appeal to raise ineffective trial counsel due to a conflict of interest. “Because the alleged deficiencies
II. Ineffective Assistance of Appellate Counsel Based on Trial Counsel‘s Conflict of Interest
Only Petitioner‘s claim involving appellate counsel‘s failure to allege on direct appeal that Petitioner‘s trial counsel operated under a conflict is properly before this court.8 The district court denied Petitioner habeas relief on this claim without conducting an evidentiary hearing. We conclude that the district court abused its discretion by denying Petitioner an evidentiary hearing. See Anderson v. Attorney General of Kan., 425 F.3d 853, 858 (10th Cir.2005) (“A district court‘s decision to grant or deny an evidentiary hearing in a habeas proceeding is reviewed for an abuse of discretion.“).
Although AEDPA strictly limits a federal court‘s ability to grant an evidentiary hearing, in this case Petitioner is freed from
A. Diligence in pursuing the factual basis for his claims
AEDPA precludes a federal habeas court from conducting an evidentiary hearing on a claim that the habeas petitioner failed to develop in state court. See
We note that “merely requesting a hearing in state court may not be enough to satisfy the requirement that [a petitioner] diligently seek to develop a factual basis for his claim.” Parker v. Scott, 394 F.3d 1302, 1325 (10th Cir.2005). In this case, however, Petitioner not only aggressively sought an evidentiary hearing, he also put on some evidence in support of his allegation of his counsel‘s conflict of interest. Specifically, the state trial record reflects counsel‘s concession during trial that negotiating Demarcus Hammon‘s plea bargain created a conflict of interest in trial counsel‘s joint representation of the Hammon brothers. Accordingly, the pre-AEDPA standard applies to Petitioner‘s request for an evidentiary hearing. See Miller, 161 F.3d at 1253.
B. Allegations, if true and not contravened, would entitle Petitioner to habeas relief
Under the pre-AEDPA standard for granting an evidentiary hearing, we must analyze whether Mr. Hammon‘s allegations, “if true and not contravened by the existing factual record, would entitle him to habeas relief.” Anderson, 425 F.3d at 858. To obtain relief for ineffective counsel, a petitioner must generally show both that his “counsel‘s representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue.” Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999) (citation omitted). In conducting this review:
[i]f the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance; if the omitted issue has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance.
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003). Consequently, in this case, we must consider the merits of Petitioner‘s claim that his trial counsel was constitutionally ineffective because of a conflict of interest.
Because the OCCA reached and rejected Petitioner‘s claim of ineffective assistance of appellate counsel on its merits, we may not grant relief on that claim unless the state court‘s adjudication of it
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.
“To determine the applicable ‘clearly established’ law, we look to Supreme Court precedent as it existed when the state court reached its decision.” Brown v. Uphoff, 381 F.3d 1219, 1224 n. 4 (10th Cir.2004). A state-court decision is con
applies a rule that contradicts the governing law set forth in [Supreme Court] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of th[e] [Supreme] Court but reaches a different result. A state-court decision involves an unreasonable application of th[e] [Supreme] Court‘s clearly established precedents if the state court applies th[at] Court‘s precedents to the facts in an objectively unreasonable manner.
Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (citations omitted).
The Supreme Court has held that a “conflict itself demonstrate[s] a denial of the ‘right to have the effective assistance of counsel.‘” Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942)); see also Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990). Furthermore, “[a] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708 (emphasis added); see also Bowie, 892 F.2d at 1500. An “actual conflict of interest” cannot be demonstrated merely by “the possibility for conflict,” see Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; nor may it be demonstrated by “the mere appearance of impropriety,” Pool v. Armontrout, 852 F.2d 372, 375 (8th Cir.1988). Instead, the Supreme Court has held that the claimant must show “that his counsel actively represented conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708.
As we have noted, the OCCA ruled that Petitioner failed to proffer sufficient facts or legal argument to support an ineffective assistance of appellate counsel claim. In deferring to that determination, the district court more fully determined that appellate counsel‘s performance would not entitle Petitioner to habeas relief, even with the presentation of evidence, because there was no actual conflict of interest where 1) Demarcus Hammon never testified for the prosecution and against Petitioner despite his agreeing to do so and 2) the jury never heard Demarcus Hammon‘s statement, reflected in the factual basis for his plea, inculpating Petitioner. We do not agree that the alleged conflict of interest is based on Demarcus Hammon‘s value as a state‘s witness; instead, we interpret the alleged actual conflict to be based on Demarcus Hammon‘s value as a potential defense witness.10
Based on the trial record and Petitioner‘s affidavit, which he submitted to the state court, we interpret the alleged conflict as follows: Until Demarcus Ham
If the facts are as Petitioner alleges, then trial counsel‘s performance was adversely affected by an actual conflict in this case regardless of whether Demarcus Hammon ever actually inculpated Petitioner at trial. This is so because trial counsel could not simultaneously negotiate the most favorable deal for Demarcus Hammon—a five-year deferred sentence—without both disqualifying Demarcus Hammon from providing exculpatory testimony for Petitioner and, consequently, sabotaging Petitioner‘s most viable defense strategy and the defense that trial counsel was hired jointly to present for the Hammon brothers. Thus, once the State offered Demarcus Hammon the conditional plea bargain, Demarcus Hammon‘s interest in obtaining the most favorable plea bargain conflicted with Glenn Hammon‘s interest in presenting his best defense. Yet, trial counsel continued actively to represent both Hammon brothers—negotiating the conditional plea for Demarcus Hammon and leading Petitioner to trial without the best witness (Demarcus Hammon) to create a reasonable doubt in the State‘s case. See Bowie, 892 F.2d at 1500 (“[D]efense counsel‘s performance [is] adversely affected by an actual conflict of interest if a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests.“).
Where an actual conflict of interest adversely affects counsel‘s performance, as Petitioner‘s affidavit suggests here, “[n]o further showing of prejudice is necessary,” Bowie, 892 F.2d at 1500; see also Cuyler, 446 U.S. at 349-50, 100 S.Ct. 1708; instead, we presume prejudice, see Hernandez v. Mondragon, 824 F.2d 825, 827 (10th Cir.1987). In fact, here there is more than the general presumption of prejudice; here, there is evidence in the record of actual prejudice—trial counsel‘s candid statement on the record at trial that he had a conflict of interest based on his duel representation of the Hammon brothers
C. Conclusion
We cannot resolve on the record before us whether Demarcus Hammon‘s plea bargain contained an agreement that effectively prevented him from providing statements exculpating Petitioner.12 Parker, 394 F.3d at 1324 (“No hearing is necessary if we can resolve the petitioner‘s claims on their merits based solely on the record before us.“). If the facts alleged by Petitioner are true, however, then Petitioner has shown that his trial counsel actively represented conflicting interests and thus operated under an actual conflict. Omitting “an issue which was obvious from the trial record, and one which would have resulted in a reversal on appeal,” Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir.1998) (quotations omitted) (emphasis in original), constitutes ineffective assistance of appellate counsel under any reasonable application of Supreme Court precedent to Petitioner‘s allegations in this case. See Wood, 450 U.S. at 271, 101 S.Ct. 1097; Cuyler, 446 U.S. at 348-50, 100 S.Ct. 1708; see also Upchurch v. Bruce, 333 F.3d 1158, 1164 n. 3 (10th Cir.2003) (“[W]e reject[] the proposition that omission of a ‘dead bang winner’ is necessary to prevail on a claim of ineffective assistance of appellate counsel. At the same time, of course, omission of a ‘dead bang winner’ can be a sufficient basis for such a claim.“) (citations omitted). We therefore conclude that the OCCA either reached “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.”
Accordingly, Petitioner is entitled to an evidentiary hearing, and the district court abused its discretion by denying Petitioner habeas relief without conducting one. See Anderson, 425 F.3d at 858.
CONCLUSION
For the foregoing reasons, we conclude that Petitioner has made sufficient allegations at this stage to merit the opportunity to present evidence in support of his habeas claim concerning his counsels’ inadequate representation. We therefore REVERSE the district court‘s order denying Petitioner habeas relief on his claim of ineffective assistance of trial counsel due to a conflict of interest and ineffective assistance of appellate counsel for failing to raise that claim on direct appeal and REMAND the case to the district court for an evidentiary hearing and further proceedings consistent with this opinion. Petitioner‘s request to proceed in forma pauperis on appeal is GRANTED.
Notes
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.