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United States v. Harrison

Court: Court of Appeals for the Fifth Circuit
Date filed: 2022-03-24
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Case: 19-10916      Document: 00516252034         Page: 1    Date Filed: 03/24/2022




              United States Court of Appeals
                   for the Fifth Circuit                         United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  March 24, 2022
                                  No. 19-10916
                                                                   Lyle W. Cayce
                                Summary Calendar                        Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Emanuel James Harrison,

                                                          Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:15-CV-1653


   Before King, Costa, and Ho, Circuit Judges.
   Per Curiam:*
          Emanuel James Harrison, former federal inmate # 43925-177, appeals
   the denial of his 28 U.S.C. § 2255 motion, arguing that he received ineffective
   assistance of counsel that affected the voluntariness of his guilty plea.
   Harrison was sentenced to an 84-month term of imprisonment followed by a


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-10916      Document: 00516252034           Page: 2    Date Filed: 03/24/2022




                                     No. 19-10916


   three-year term of supervised release. See United States v. Harrison, 777 F.3d
   227, 233 (5th Cir. 2015). We granted Harrison a certificate of appealability
   to appeal the questions (1) whether the district court correctly determined
   that his claim could be denied because the evidence did not show that his trial
   counsel and codefendant established an attorney-client relationship as a
   matter of state law, and (2) whether the district court correctly concluded,
   alternatively, that despite the existence of an actual conflict of interest
   stemming from multiple representation, Harrison failed to demonstrate that
   the actual conflict adversely affected his counsel’s representation of him.
          On appeal, Harrison contends that his trial counsel’s actions created
   an implied attorney-client relationship with his codefendant and that he was
   adversely affected by this actual conflict of interest during the plea process
   because his codefendant implicated him in plea papers, which induced
   Harrison to plead guilty. In an appeal from the denial of a § 2255 motion, we
   review the district court’s legal conclusions de novo and its factual findings
   for clear error. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
   The district court’s underlying factual determinations, made after full
   consideration of the record and an evidentiary hearing, “are entitled to
   substantial deference, and should be reversed only if they are shown to be
   clearly erroneous.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). A
   claim of ineffective assistance of counsel involving a conflict of interest is a
   mixed question of law and fact, which we review de novo. Beets v. Collins,
   986 F.2d 1478, 1482 (5th Cir. 1993); see also Perillo, 205 F.3d at 781.
          When determining the existence of an attorney-client relationship, we
   generally look to state law. See Hopper v. Frank, 16 F.3d 92, 95 (5th Cir. 1994);
   see also Walters v. Scott, 21 F.3d 683, 685 & n.5 (5th Cir. 1994). Under Texas
   law, the attorney-client relationship can be expressly created by contract or
   implied from the conduct of the parties. See Tanox, Inc., v. Akin, Gump,
   Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254 (Tex. App. 2003); see also



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                                    No. 19-10916


   Belliveau v. Barco, Inc., 987 F.3d 122, 133 (5th Cir. 2021). After a review of
   the record, we conclude that the objective acts of both parties do not support
   that Harrison’s trial counsel and codefendant intended to create an attorney-
   client relationship under Texas law. Kiger v. Balestri, 376 S.W.3d 287, 291
   (Tex. App. 2012).
          Harrison argues, however, that an attorney-client relationship is not a
   prerequisite for a Sixth Amendment claim based on multiple representation.
   We need not decide this issue because Harrison’s claim fails either way. To
   establish a multiple-representation claim under the Sixth Amendment,
   Harrison must show that his trial counsel (1) “was acting under the influence
   of an actual conflict that (2) adversely affected representation.” United
   States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007); Cuyler v. Sullivan,
   446 U.S. 335, 348–350 (1980). “A potential conflict of interest or one which
   is merely speculative does not by itself make out a constitutional claim.”
   Barrientos v. United States, 668 F.2d 838, 841 (5th Cir. 1982).
          First, Harrison has not shown that his trial counsel’s involvement
   with his codefendant created an actual conflict of interest. The conflict
   allegedly arose when counsel helped Harrison’s codefendant sign paperwork
   for a global plea deal. But that deal contained favorable terms for Harrison.
   And counsel wanted Harrison to take it well before his codefendant signed
   on. If anything, counsel was acting in Harrison’s interest by helping his
   codefendant accept the Government’s supposed all-or-nothing offer.
          Second, Harrison cannot show that he was adversely affected by the
   alleged conflict of interest. Harrison had the power to reject the global plea
   deal, whether or not his codefendant did the same. Had Harrison done so,
   his counsel testified that he was prepared to proceed to trial on Harrison’s
   behalf. Harrison argues that he would have been prejudiced nonetheless
   because his codefendant’s plea papers implicated him in the conspiracy. But




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                                     No. 19-10916


   a third codefendant (Harrison’s brother) also accepted the deal, and his
   papers contained similar facts. Moreover, Harrison’s contention that the
   government offered a global deal requiring every defendant to sign on would
   mean that Harrison’s own rejection of the offer would have voided the entire
   plea deal and all the related documents. Even if not, it is difficult to see how
   these hearsay documents would have been admissible as evidence of
   Harrison’s guilt at trial (of course, the codefendants could have testified
   against him, but the government could not have introduced the out-of-court
   plea documents of codefendants not testifying). In sum, any adverse effect
   resulting from the alleged conflict of interest is speculative at best. Harrison
   has thus failed to establish that he was denied effective assistance of counsel.
   See Sealed Appellee v. Sealed Appellant, 900 F.3d 663, 669 (5th Cir. 2018).
          The judgment is AFFIRMED.




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