133 Nev., Advance Opinion {GS
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
BRANDON MONTANE JEFFERSON, No. 70732
Appellant,
vs.
THE STATE OF NEVADA,
FILE
Respondent.
--
Brandon Montane Jefferson appeals from a district court order
denying his postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Kerry Louise Earley, Judge.
Affirmed.
Nguyen & Lay and Matthew Lay, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Krista D. Barrie, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
OPINION
By the Court, TAO, J.:
Shortly before his criminal trial was originally scheduled to
begin, appellant Brandon Jefferson filed a complaint against his court-
appointed defense attorney with the State Bar of Nevada. In this appeal
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from the denial of a postconviction petition for a writ of habeas corpus, he
contends that the filing of the bar complaint created a per se actual conflict
of interest that rendered trial counsel constitutionally ineffective under the
Sixth Amendment which, if true, would give rise to a presumption that the
conflict prejudiced the outcome of his trial. We disagree and affirm the
denial of his postconviction petition.
FACTUAL AND PROCEDURAL HISTORY
Jefferson was convicted by a jury of three counts (out of six
counts originally charged) of sexual assault of a minor under the age
fourteen and one (out of five) counts of lewdness with a minor under the age
of fourteen.
Days before his original trial date, Jefferson sent a letter to the
State Bar of Nevada alleging that he was "having a bit of an issue with" one
of the two deputy public defenders assigned to represent him The letter
explained that counsel "lightly' verbally abuses" Jefferson, "ignores [his]
outlook," and once purportedly stated that "people like you belong in hell
not prison." The Bar forwarded a copy of the letter to counsel with a request
that he provide a written response.
The day after sending his letter to the Bar, Jefferson also filed
a motion with the district court requesting that the court dismiss his
current counsel and appoint alternate counsel. The written motion recited
a laundry list of things that counsel allegedly refused to do to prepare for
trial: communicate with him meaningfully or at length, thoroughly
investigate a potential alibi defense, tell him the truth about the status of
the case, give him copies of discovery obtained from the State, seek an
acceptable plea bargain negotiation on his behalf, file enough motions on
his behalf, and generally work hard enough. The motion did not reference
the bar complaint that had been sent the previous day. During a hearing
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on his motion to dismiss counsel, Jefferson verbally narrowed his litany of
grievances down to complaining that counsel had not given him all of the
discovery procured from the State, and had failed to investigate a potential
alibi defense based upon his having been at work during some of the
charged crimes. Neither the district court nor Jefferson's counsel appeared
aware that a bar complaint had been filed the previous day, and Jefferson
did not mention it during the hearing. The district court denied his motion.
Jefferson's trial was subsequently postponed for unrelated
reasons and eventually began about a year after Jefferson sent his letter to
the Bar. During the lengthy delay, Jefferson did not again request that
counsel be replaced, and there is no indication in the record that his bar
complaint was referenced ever again either before or during trial.
Following his conviction, Jefferson filed a direct appeal to the
Nevada Supreme Court. Among the issues raised was that the district court
erred in denying his motion to dismiss counsel, but Jefferson did not
mention the bar complaint as a reason why the district court's decision was
erroneous. The court affirmed the judgment of conviction, concluding (in
relevant part) that the district court committed no error in denying the
motion to dismiss counsel:
[Ti he district court conducted an inquiry into
Jefferson's request. The court determined that
Jefferson was unhappy because he believed his
counsel had not provided to him everything
obtained through discovery, and his counsel had
not obtained his work records. Jefferson's attorney
explained that the work records were not relevant
and that leaving the records with a client in custody
is risky because nothing is private in jail; however,
he further expressed that he would provide
anything Jefferson requested up to that point. We
conclude that. . . the district court did not err in
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denying the motion. The district court's inquiry
demonstrates the conflict was minimal and could
easily be resolved. Furthermore, Jefferson's
request was untimely as it was made only a few
days prior to trial.
Jefferson v. State, Docket No. 62120 (Order of Affirmance, July 29, 2014).
After his direct appeal was denied, Jefferson filed a timely
petition for a writ of habeas corpus in the district court alleging that counsel
had performed ineffectively for a variety of reasons, including by remaining
as counsel despite an actual conflict of interest created once Jefferson filed
his complaint with the Bar. The district court denied relief on all grounds.
Jefferson now appeals from the denial of his postconviction petition. In this
appeal, Jefferson expressly abandons all of the arguments raised below
except that counsel was ineffective in continuing to represent him despite
what he characterizes as a conflict of interest created by the filing of the bar
complaint.
ANALYSIS
The Sixth Amendment to the United States Constitution
guarantees to every criminal defendant a right to the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668 (1984); Warden v.
Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Normally, to state a claim of
ineffective assistance of counsel sufficient to invalidate a judgment of
conviction, a petitioner must satisfy a two-prong test: he must demonstrate
that counsel's performance was deficient and that the deficiency prejudiced
him. Strickland, 466 U.S. at 687. The petitioner must demonstrate the
underlying facts by a preponderance of the evidence. Means v. State, 120
Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
When a petitioner alleges that counsel has been ineffective, he
is entitled to an evidentiary hearing only if he has "assert [edi specific
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factual allegations that are not belied or repelled by the record and that, if
true, would entitle him to relief." Nika v. State, 124 Nev. 1272, 1300-01,
198 P.3d 839, 858 (2008). On appeal, we give deference to the district court's
factual findings if supported by substantial evidence and not clearly
erroneous but review the court's application of the law to those facts de
novo. See Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
The right to effective assistance of counsel includes the right to
assistance "unhindered by conflicting interests." Clark v. State, 108 Nev.
324, 326, 831 P.2d 1374, 1376(1992) (citing Holloway v. Arkansas, 435 U.S.
475 (1978)). A conflict of interest arises when counsel's "loyalty to, or efforts
on behalf of, a client are threatened by his responsibilities to another client
or a third person or by his own interests." People v. Horton, 906 P.2d 478,
501 (Cal. 1995) (internal quotation marks omitted); see also RPC 1.7(a);
Clark, 108 Nev. at 326, 831 P.2d at 1376. When a defendant demonstrates
that counsel was rendered ineffective because of lain actual conflict of
interest which adversely affects [the] lawyer's performance," prejudice is
presumed and the defendant is relieved of the obligation to independently
prove its existence. Clark, 108 Nev. at 326, 831 P.2d at 1376 (citing Cuyler
v. Sullivan, 446 U.S. 335 (1980)). Whether a conflict exists is a mixed
question of fact and law reviewed on appeal de novo, see Cuyler, 446 U.S. at
342, and "must be evaluated on the specific facts of each case," Clark, 108
Nev. at 326, 831 P.2d at 1376.
Below, Jefferson did not assert that his counsel did anything in
response to the filing of the bar complaint that would independently entitle
Jefferson to relief. Nor did Jefferson contend that his bar complaint led to
the imposition of any discipline upon his attorney that rendered his counsel
ineffective. Consequently, Jefferson's contention was not that the
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complaint happened to trigger a chain of events that ended up producing an
irreconcilable conflict between him and his attorney, but rather that the
filing of the complaint, by itself, created an actual conflict without anything
more happening.
Thus, Jefferson would have been entitled to relief only if, as a
matter of law, the mere filing of his bar complaint created a per se conflict
of interest rising to the level of a violation of the Sixth Amendment. The
closest the Nevada Supreme Court has come to addressing this situation is
in Clark v. State, 108 Nev. at 326, 831 P.2d at 1376. In Clark, the Nevada
Supreme Court recognized that a constitutional violation could occur when
a defense attorney filed a civil suit seeking monetary damages against his
own client during the course of defending him against murder charges. Id.
The court reasoned that the filing of the civil suit could have created an
adverse financial interest that might have led counsel to be more
conservative in handling the criminal case than he otherwise might have
been. Although the attorney might have earnestly believed that his
judgment was not compromised, "some attorneys might conclude that there
is less incentive to interpose every available defense [in the criminal case],
as an incarcerated client would be less apt to vigorously oppose an entry of
default and subsequent enforcement of the civil judgment." Id. at 327, 831
P.2d at 1376. Thus, the court emphasized that attorneys should avoid
entangling themselves in financial conflicts that might create "economic
pressure" that could "adversely affect the manner in which at least some
cases are conducted." Id. at 327, 831 P.2d at 1377 (quoting Jewell v.
Maynard, 383 S.E.2d 536,544 (W. Va. 1989)).
But the filing of a bar complaint by a defendant against his
counsel differs from Clark in important ways. As an initial observation, the
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conflict of interest in Clark was created by the self-interested actions of the
attorney in suing his client. More importantly, unlike a civil suit for money
damages, the filing of a bar complaint does not initiate head-to-head
litigation between the attorney and client that could result in a collectible
money judgment in favor of one party or another. Rather, a bar complaint
is a request that the Bar conduct its own independent investigation of the
attorney's behavior and impose appropriate disciplinary measures
(frequently nonfinancial) against the attorney. See generally State Bar of
Nevada, Disciplinary Rules of Procedure (2017); see also State Bar of
Nevada, Ethics and Discipline, https ://www.nvbar.org/member-services-
3895/ethics-discipline! (last visited August 11, 2017). Even where a Bar
disciplinary action includes some kind of monetary fine or penalty, the fine
would not be enforced by the client through adversary collection measures
as in a civil suit, but rather would be enforced by the Bar itself. See State
Bar, Ethics and Discipline, supra ("All investigations of possible attorney
misconduct are conducted through the Office of Bar Counsel. In matters
that warrant disciplinary action, bar counsel then prosecutes all
disciplinary proceedings."). Therefore, we conclude Clark does not govern
the outcome of the issue presented to this court.
Although the Nevada Supreme Court has not yet addressed this
specific question, other courts have held, virtually unanimously, that the
mere filing of a bar complaint against counsel does not automatically create
a conflict of interest. See State v. Michael, 778 P.2d 1278, 1280 (Ariz. Ct.
App. 1989) ("This defendant has not demonstrated any adverse effect from
any alleged conflict of interest created when he filed a bar complaint against
[his attorney]. Our review of the record finds none."); Gaines v. State, 706
So. 2d 47, 49 (Fla. Dist. Ct. App. 1998) ("Furthermore, the filing of a bar
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complaint against the Office of the Public Defender does not automatically
create a conflict of interest requiring the appointment of substitute
counsel."); Holsey v. State, 661 S.E.2d 621, 626 (Ga. Ct. App. 2008)
("Specifically, Holsey argues that trial counsel should have withdrawn as
his counsel after learning that Holsey had filed a bar complaint against him
based on his dissatisfaction with his representation. We disagree. . . . A
theoretical or speculative conflict will not impugn a conviction which is
supported by competent evidence." (internal quotation marks omitted)).
We agree with the weight of authority and hold that, as a
matter of law, the mere filing of a bar complaint by a defendant against his
attorney does not create a per se conflict of interest rising to the level of a
violation of the Sixth Amendment. The filing of a bar complaint ought not
become a routine method of forcing a change in appointed counsel after a
district court motion has failed, or of obtaining postconviction relief on
manufactured or hypothetical premises, when no actual conflict of interest
otherwise existed.
When an alleged conflict is initiated by the actions of a
defendant, courts are, and ought to be, more suspicious about concluding
that a constitutional violation has occurred than when the actions were
initiated by the attorney. See Carter v. Armontrout, 929 F.2d 1294, 1300
(8th Cir. 1991) ("[A] pending lawsuit between a defendant and his attorney
may give rise to a conflict of interest. . . . However, a defendant who files a
lawsuit against his attorney does not necessarily create such a conflict.").
In those cases, courts should be wary of the possibility that the defendant
may be attempting to either manufacture a way to replace counsel or delay
the prosecution of the case, or both. As stated by another court in denying
a pretrial motion to disqualify appointed counsel based upon a lawsuit the
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client filed against his counsel, "a criminal defendant's decision to file such
an action against appointed counsel does not require disqualification unless
the circumstances demonstrate an actual conflict of interest." Horton, 906
P.2d at 501; see also Smith v. Lockhart, 923 F.2d 1314, 1321 n.11 (8th Cir.
1991) ("We recognize the danger of any holding implying that defendants
can manufacture conflicts of interest by initiating lawsuits against their
attorneys.").
CONCLUSION
Because we hold the filing of a bar complaint does not create a
per se conflict of interest that rises to the level of a violation of the Sixth
Amendment, and Jefferson did not assert that the filing of the bar complaint
adversely affected his counsel's behavior or caused his counsel to defend him
less diligently, he did not present a conflict-of-interest claim that would
entitle him to relief The district court therefore did not err by denying his
claim without conducting an evidentiary hearing. Accordingly, we affirm
the district court order denying Jefferson's postconviction petition for a writ
of habeas corpus.
Ast,' J.
Tao
We concur:
, CA.
Silver
J.
Gibbons
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JEFFERSON (BRANDON) VS. STATE
Combined Opinion