United States District Court, Western District of Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DEAN WHIPPLE UNITED STATES DISTRICT JUDGE
Petitioner, James Johnson, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on November 19, 2013, seeking to challenge his 2008 conviction and sentence for second-degree murder, which was entered in the Circuit Court of Jackson County, Missouri, after petitioner pled guilty to the offense.
The petition raises one ground for relief; that his original law firm had a conflict of interest. Respondent contends that this claim is meritless.
The Missouri Court of Appeals summarized the facts as follows:
[Petitioner] took his gun and a gang to the victim’s home, killed him, and was charged with first-degree murder and ACA. He was first represented by Don Sotta, who passed away, and thereafter by Bob Briggs of the same office. [Petitioner] then dismissed Briggs and hired Springfield lawyers in October 2007. In July 2008, on the eve of the trial, [petitioner] pleaded guilty to a reduced charge and was sentenced to 20 years.
Later, [petitioner] sought Rule 24.035 relief, alleging in part that he had not known that Sotta and Briggs practiced with a lawyer then married to an assistant prosecutor. According to [petitioner], this amounted to a conflict of interest. After an evidentiary hearing where [petitioner] offered only his own deposition testimony, the motion court denied relief.
(Doc. No. 6, Respondent’s exhibit F, pp. 1-2).
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C.
§ 2254 (e)(1). Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
CONFLICT OF INTEREST
In petitioner’s sole claim, he asserts that his original trial counsel’s law firm had a conflict of interest because one of the attorneys in that firm was married to the assistant prosecuting attorney assigned to petitioner’s case. (Doc. No. 1, p. 5). Respondent contends that this claim is meritless.
To establish a claim of ineffective assistance of counsel based on alleged conflict of interest, a petitioner must demonstrate that the conflict of interest adversely affected counsel’s performance. Mickens v. Taylor, 535 U.S. 162, 172-73 (2002). “To establish that there was a conflict in representation, " petitioner must show that
"the conflict caused the attorney's choice to engage or not to engage in particular conduct." Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)), cert. denied, 550 U.S. 939 (2007).
"Such a showing requires the defendant to identify a plausible alternative defense strategy or tactic that defense counsel might have pursued, show that the alternative strategy was objectively reasonable under the facts of the case, and establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict." Id. (internal quotations and citations omitted).
Here, petitioner offers an alleged conflict of interest with his first set of attorneys, and provides no evidence of any impact that such conflict had on either the original attorneys or the attorneys that represented petitioner at the time of the scheduled trial and his plea. Petitioner asserts that an attorney at his original law firm was married to the assistant prosecutor, and because of this marriage there was a conflict of interest, as a result of information that could have been shared between them. However, ...