Frye v. Calderon, et al

Filing 621

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/13/12 DENYING 619 Motion for a hearing regarding a conflict of interest; The court will not consider any of the substantive arguments made in petitioners pro per filings because he is represented by counsel. Clerk of the Court is directed to serve a copy of this order upon petitioner Jerry Grant Frye by U.S. mail. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY GRANT FRYE,

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Petitioner,

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No. 2:99-cv-0628 LKK CKD

vs.

DEATH PENALTY CASE

WARDEN, San Quentin
State Prison,

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Respondent.

ORDER

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Petitioner Jerry Frye, acting in pro per, filed two documents in this action. The

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first is a motion requesting a hearing on an alleged conflict of interest of his appointed counsel.

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(Dkt. No. 619.) In the second, entitled a “Petition for Writ of Habeas Corpus,” petitioner makes

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the same allegations of a conflict of interest and challenges the capital case procedures of the

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State of California. (Dkt. No. 620.) After review of both filings, and good cause appearing, the

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undersigned will deny petitioner’s request for a hearing.

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I. Background

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In 1988, petitioner was convicted of, among other things, two counts of first

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degree murder and sentenced to death. In 1998, the California Supreme Court affirmed

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petitioner’s conviction and sentence on appeal. People v. Frye, 18 Cal. 4th 894 (1998). Shortly
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thereafter, the California Supreme Court denied petitioner’s first state habeas petition. In re Frye,

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No. S062455. The present federal habeas corpus proceeding was initiated in 1999. In 2000,

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petitioner filed a second state habeas corpus petition to exhaust his state remedies. The

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California Supreme Court appointed petitioner’s federal habeas counsel to represent petitioner in

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the second state proceeding. The California Supreme Court denied the second petition in 2001.

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In re Frye, No. S087755.

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Petitioner’s federal claims are contained in his Second Amended Petition filed in

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2003. (Dkt. No. 104.) In 2006, petitioner’s motion for an evidentiary hearing was granted in

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part. (Dkt. No. 214.) Before the in-court portion of the evidentiary hearing was conducted,

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however, the United States Supreme Court rendered its decision in Cullen v. Pinholster, 131 S.

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Ct. 1388 (2011). After considering the effects of Pinholster on this proceeding, the parties were

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ordered to file memoranda addressing the application of 28 U.S.C. § 2254(d) to each evidentiary

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hearing claim. Petitioner filed a lengthy brief in November 2011. (Dkt. No. 612.) In April 2012,

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respondent filed an opposition. (Dkt. No. 616.) Petitioner’s reply brief is due July 26, 2012.

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(Dkt. No. 618.)

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II. Petitioner’s Pro Per Filings

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In his Motion for Hearing on the Conflict of Interest with Appointed Counsel,

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petitioner complains that the State of California’s procedures in capital cases have resulted in a

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suspension of the writ of habeas corpus and are the cause of delay in resolving his challenges to

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his conviction. (Dkt. No. 619.) Petitioner states that by participating in the state’s “illegal

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process,” his appointed counsel has a conflict of interest in representing him to challenge that

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process.

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Petitioner’s claims in his “Petition for Writ of Habeas Corpus” are similar. He

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essentially argues that due to the conflict of interest, his counsel cannot represent him in raising

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claims challenging the state court’s processes. (Dkt. No. 620 at 1-8.) Petitioner also describes

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problems in the state’s capital post-conviction processes. (Dkt. No. 620 and attachments.)
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III. Discussion
A. Legal Standards
As an initial matter, because petitioner has appointed counsel to represent him in

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this matter, “the Court generally will not consider pro se documents about the presentation of his

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or her case.” E.D. Cal., Local Rule 191(c). “However, the Court generally will consider pro se

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motions concerning petitioner's representation by appointed counsel.” Id. Because petitioner

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alleges his counsel acts under a conflict of interest, this court will consider his filings. However,

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petitioner must provide good reason to believe a conflict exists before the court will order a

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hearing on that issue.

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It is well established that the Sixth Amendment right to effective assistance of

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counsel carries with it “a correlative right to representation that is free from conflicts of interest.”

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Wood v. Georgia, 450 U.S. 261, 271 (1981); see also Campbell v. Rice, 408 F.3d 1166, 1170

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(9th Cir. 2005). Conflicts of interest broadly embrace all situations in which an attorney’s loyalty

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to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third

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person or by his own interests. See generally ABA, Model Rules Prof. Conduct, Rule 1.7.

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Conflicts may occur in various factual settings. For example, conflicts may arise in

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circumstances in which one attorney represents more than one defendant in the same proceeding.

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See, e.g., Holloway v. Arkansas, 435 U.S. 475, 481-91 (1978). Conflicts may also arise in

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situations in which an attorney represents a defendant in a criminal matter and currently has or

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formerly had an attorney-client relationship with a person who is a witness in that matter. See,

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e.g., Houston v. Schomig, 533 F.3d 1076, 1081 (9th Cir. 2008); Thomas v. Municipal Court, 878

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F. 2d 285 (9th Cir. 1989). The rule prohibiting counsel from representing conflicting interests

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serves to protect confidential information obtained during the course of an earlier representation,

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ensure undivided attorney loyalty, and guard against infringement of the right to cross-

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examination. See Sanders v. Ratelle, 21 F.3d 1446, 1452-53 (9th Cir. 1994); Fitzpatrick v.

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McCormick, 869 F.2d 1247, 1251 (9th Cir. 1989); United States v. Allen, 831 F.2d 1487, 1497
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(9th Cir. 1987); Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980). Courts “generally presume

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that the lawyer is fully conscious of the overarching duty of complete loyalty to his or her client.”

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Burger v. Kemp, 483 U.S. 776, 784 (1987).

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B. Application

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Petitioner has failed to demonstrate that his federal court counsel are acting under

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a conflict of interest. The fact that counsel also represented petitioner before the California

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Supreme Court during his second state habeas proceeding is no grounds for finding that counsel

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were thereby disabled from challenging any aspect of those state proceedings. In fact,

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petitioner’s counsel are challenging the state’s post-conviction process. Petitioner’s brief filed in

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November contains an extensive argument that the State of California’s post-conviction process

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for capital cases is unreasonable. (Dkt. No. 612 at 28-48.) Moreover, petitioner’s counsel have

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made just the challenge petitioner seeks. The November brief includes argument that deferring

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to the state’s defective processes would amount to a suspension of the writ of habeas corpus. (Id.

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at 28:1-17.)

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IV. Conclusion

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Petitioner has failed to show that his counsel are acting under a conflict of
interest. Accordingly, IT IS HEREBY ORDERED as follows:

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1. Petitioner’s June 28, 2012 motion for a hearing regarding a conflict of interest
is DENIED.

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2. The court will not consider any of the substantive arguments made in

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petitioner’s pro per filings because he is represented by counsel. E.D. Cal., Local Rule 191(c).

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3. The Clerk of the Court is directed to serve a copy of this order upon petitioner
Jerry Grant Frye by U.S. mail.
Dated: July 13, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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frye pro per filings.or

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