United States v. Maria-Martinez ( 1998 )

REVISED - 6/29/98
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-40184
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS SANTA MARIA-MARTINEZ,
a.k.a. CHUEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
June 10, 1998
Before KING, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jesus Santa Maria-Martinez appeals a guilty plea entered while
he was represented by an attorney who had been barred from
practicing before courts in the Fifth Circuit. Because the record
is not sufficiently developed to evaluate a claim of ineffective
assistance of counsel, we affirm.
I.
Maria-Martinez and his brother sold drugs out of a trailer in
Victoria, Texas. Using a confidential informant, the Victoria
Police Department purchased 2.96 grams of heroin from Maria-
Martinez in 1993. In 1995, another confidential informant
telephoned Maria-Martinez, who arranged for the caller to meet with
his brother in a drug store parking lot and purchase twelve grams
of heroin.
Maria-Martinez was arrested and charged with various narcotics
offenses in April 1996; attorney Carlos Alvarado was promptly
appointed to represent him and did so throughout the district court
proceedings, despite the fact that Fifth Circuit Chief Judge Politz
had issued an order barring Alvarado from the practice of law in
Fifth Circuit courts for a period of at least six months, to end no
earlier than June 1996. Alvarado could have reapplied for
permission to practice after the six-month period elapsed, but
never did so.
On May 8, 1996, a superseding indictment charged Maria-
Martinez with conspiracy to possess with intent to distribute a
controlled substance, along with four counts of aiding and abetting
in the knowing distribution of heroin. He pleaded not guilty on
May 17, but entered a guilty plea on two counts on September 23,
pursuant to a plea agreement.
The plea agreement included a promise by the government to
dismiss three counts and to recommend a three-level sentence
reduction for acceptance of responsibility and a sentence at the
lower end of the sentencing guideline range. In return, Maria-
Martinez promised his truthful testimony at rearraignment and
sentencing. The district court accepted these recommendations but
2
enhanced the sentence by two levels based on possession of a
dangerous weapon during a drug trafficking offense.
Alvarado filed a notice of appeal for Maria-Martinez in
January 1997. In April 1997, the Fifth Circuit entered an order
noting that Alvarado had been barred from practice within the
circuit and vacating his appointment in Maria-Martinez’s case. The
district court was ordered to obtain new counsel, and did so.
II.
Maria-Martinez asks that we reverse his conviction because he
received ineffective assistance of counsel. We do not typically
review claims of ineffective assistance on direct appeal, because
the record is rarely sufficiently developed on the issue of
counsel’s competence. See, e.g., United States v. Foy, 28 F.3d
464, 476 (5th Cir. 1994). Although Maria-Martinez asserts several
ways in which his counsel allegedly erred, the record is not
complete without Alvarado’s testimony as to any tactical
motivations behind his actions and as to how these errors
influenced the result.
For instance, Maria-Martinez claims Alvarado failed to move to
suppress evidence obtained by a search warrant allegedly containing
stale information. We have held that a claim of ineffective
assistance based on a failure to file a motion to suppress cannot
be reviewed without testimony as to the reasons behind failing to
file the motion. See United States v. Chavez-Valencia, 116 F.3d
127, 133-34 (5th Cir.), cert. denied, 118 S. Ct. 325 (1997).
3
Maria-Martinez argues that such a record is unnecessary,
because his counsel had been suspended and was therefore
ineffective as a matter of law, even if he committed no error nor
caused prejudice to the defendant’s rights through his
incompetence. Maria-Martinez relies, for this argument, on cases
from other circuits holding that an unlicensed attorney may, in
some cases, be found ineffective per se. This court has never
applied a per se ineffectiveness rule; accordingly, whether and
when we may apply such a rule is res nova in this circuit.1
A.
Some other circuits have applied a per se ineffectiveness rule
to improperly credentialed lawyers in two situations. The first
involves a lawyer who has not demonstrated the specialized
knowledge that attorneys must possess. For instance, the District
of Columbia Circuit applied a per se test where the defendant was
represented by an ex-convict posing as a lawyer, who had never
gone to law school. See Harrison v. United States, 387 F.2d 203,
212-14 (D.C. Cir. 1967). Similarly, the Second Circuit has applied
a per se rule where the attorney had gone to law school but had
failed to pass any bar examination, after several attempts. See
Solina v. United States, 709 F.2d 160, 169 (2d Cir. 1983). The
1
Cf. United States v. McKinney, 53 F.3d 664, 675 (5th Cir. 1995) (defendant’s
attorney barred from practice in Texas, but had not been suspended by the Fifth
Circuit; noting that circuit rules did not require automatic suspension in federal
court when the predicate state bar license was revoked, and finding that the
attorney “was adequately credentialed at all times relevant to this case to practice
law in the Federal District Court for the Northern District of Texas . . .,” and
finding no per se ineffectiveness).
4
second class of cases involves lawyers who were involved in the
crime of which the defendant was accused, thus creating a conflict
of interest. See, e.g., United States v. Cancilla, 725 F.2d 867,
870 (2d Cir. 1984).
The first class of casesSSthe one most relevant hereSSis based
on two considerations. First, courts are concerned that a
defendant have a counselor who has legal training and has
demonstrated the specialized knowledge and ability of a lawyer.
See, e.g., United States v. Mouzin, 785 F.2d 682, 697 (9th Cir.
1986).
Second, an undisclosed lack of credentials may create a
conflict of interest. The inadequate credentials provide an
incentive for lackluster representation, the theory goes, because
the attorney will be concerned about drawing attention to himself
and encouraging an inquiry into his background. See, e.g., Solina,
709 F.2d at 164 (citing Holloway v. Arkansas, 435 U.S. 475, 489-90
(1978)). At least one of these concerns must be present before a
per se rule is appropriate. United States v. Aiello, 900 F.2d 528,
532 (2d Cir. 1990).
There is little question that Maria-Martinez had an attorney
who possessed the specialized knowledge necessary to represent a
client. Although he had been barred from practice in the Fifth
Circuit on the basis of his handling of an appeal for another
client, Alvarado was a member of the Texas bar throughout the
proceedings.
While Alvarado's suspension did not arise from a technical
5
failure to meet requirements, it also did not result from a
demonstrated lack of legal knowledge. Rather, he was suspended for
failing to file documents in connection with the appeal and to
apply for admission to the Fifth Circuit in order to litigate the
appeal.
Because this is a direct appeal rather than an appeal from the
denial of a 42 U.S.C. § 2255 motion, the record does not contain
any explanation for Alvarado's neglect of this matter, but numerous
explanations could be offered consistent with his continuing
ability to represent other clients. The record before us in no way
demonstrates an inability properly to represent a client to whom he
could devote sufficient time and attention, as he appears to have
done in this case.
Although the Second Circuit and several other circuits apply
a per se rule in some cases, they do not apply it to lawyers who
are properly credentialed in another court. In Derringer v. United
States, 441 F.2d 1140, 1141 (8th Cir. 1971), and United States v.
Bradford, 238 F.2d 395 (2d Cir. 1956), the courts did not apply a
per se rule where an attorney was properly admitted to a state bar
but had not applied for permission to practice in federal court.
Similarly, the Seventh Circuit did not apply a per se rule to an
attorney who was admitted to the bar in Iowa, failed the bar in
Indiana several times, then represented a defendant in Indiana.
See United States v. Merritt, 528 F.2d 650, 651 (7th Cir. 1976)
(per curiam).
These cases demonstrate that the key to adequate
6
representation is not technical license to practice in the
jurisdiction involved, but a credential from some forum
demonstrating the specialized knowledge of a lawyer. Courts
applying a per se rule appear to do so only where the attorney was
never properly licensed to practice.2 No published case of which
we are aware has applied a per se rule merely because the attorney
was not properly credentialed in the jurisdiction in which the case
arose.3
If Alvarado possessed sufficient skill to represent Maria-
Martinez, the argument for a per se ineffectiveness rule depends
solely upon the conflict of interest created by Alvarado’s
unauthorized representation in a court of the Fifth Circuit. The
present situation lies somewhere between the typical per se case,
in which the attorney is subject to criminal sanctions for
practicing law without a license, and the typical factual-
determination case, in which the attorney is only suspended from a
predicate state bar, is suspended for a technical violation, or
does not know he is suspended.
The most closely analogous case is Bellamy, in which the
2
See, e.g., Solina, 709 F.2d at 167 (“We limit our decision . . . to
situations where, unbeknown to the defendant, his representative was not authorized
to practice law in any state . . . from failure to seek it or from its denial for
a reason going to legal ability . . . .”); see also Bellamy v. Cogdell, 974 F.2d
302, 306 (2d Cir. 1992) (en banc) (stating that the per se rule is limited to cases
in which counsel was “not duly licensed to practice law because of a failure ever
to meet the substantive requirements”).
3
Cf. Graves v. United States, 1997 U.S. App. LEXIS 23194, at *9 (7th Cir.
1997) (unpublished) (suggesting application of a per se rule to an “attorney who
knew he was suspended for disciplinary reasons by the court in which the defendant
was being prosecuted”; remanding for findings on prejudice and instructing district
court to reach question whether per se rule could be applied only if he found no
prejudice).
7
Second Circuit declined to apply a per se standard. See Bellamy,
874 F.2d at 303. In that case, the attorney, Guran, postponed a
disciplinary hearing with a statement by his doctor that he was
ill, had trouble concentrating, and would be incapacitated for some
time. Id. at 303-04. Based on this statement, the hearing was
postponed. The disciplinary committee attempted to have Guran
suspended from the practice of law on the basis of his illness, but
Guran begged them to refrain from taking this step. He complained
of the stigma attached to suspension, pointed out that he had been
retired, aside from Bellamy’s case, for some time, and asked to
retain his license so that he could second-chair Bellamy’s case.
He stated that he would have a competent attorney try the case, but
needed to assist because of his longstanding relationship with the
defendant and his mother, who had already paid Guran’s fee. Id. at
304.
Presumably on the basis of these representations, the
disciplinary committee took no action on Guran’s proposed
suspension, allowing him to continue his representation of Bellamy.
Id. Guran did not in fact employ the services of co-counsel,
however, and tried the case himself. The majority opinion accepts
at face value Guran’s claim that his co-counsel was unexpectedly
unavailable at trial, but the dissent points out that he barely
mentioned the trial to his proposed co-counsel, did not make use of
co-counsel, and lacked funds with which to pay co-counsel. Id. at
310. Had the committee learned that he was trying the case
himself, Guran almost certainly would have been suspended; in
8
fact, he was suspended two weeks after the trial was completed.
Nevertheless, the majority refused to apply the per se rule
for ineffectiveness, pointing out that Bellamy was properly
licensed throughout the trial. Yet, Guran’s fear of exposure was
at least as significant as Alvarado’s. Both had to worry about the
possible future suspension of their licenses (or in Alvarado’s
case, the denial of his reapplication to practice in the circuit),
but were unlikely to face criminal prosecution if they were caught.
In contrast, the representatives in Solina and Harrison were
breaking the law by providing legal representation without a
license.
Of course, it is possible that individuals in Guran’s or
Alvarado’s situation would, for instance, aim to avoid trial in
order to minimize exposure of their unauthorized practice in a
circuit in which they were suspended or not authorized to conduct
trials on their own. The conflict is much less severe, however,
than that of an attorney who is connected with the crime or who has
never been licensed to practice law in any jurisdiction. In many
cases, as in this one, the lawyer’s status will not affect the
outcome of the criminal proceeding. Furthermore, as Bellamy
demonstrates, having a license does not preclude such a conflict.4
B.
4
See also United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) (attorney
obtained waiver of requirement by misrepresenting veteran status); Vance v. Lehman,
64 F.3d 119 (3d Cir. 1995), cert. denied, 516 U.S. 1059 (1996) (attorney failed to
disclose serious ethics investigation in California to licensing board of
Pennsylvania).
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We decline to employ the arbitrary distinctions created by the
per se ineffectiveness test, because we are not convinced that the
per se rule would lead to the right result in almost all cases or
necessarily would conserve judicial resources. A per se rule
should be applied only where it “will achieve the correct result in
almost all cases.” Coleman v. Thompson, 501 U.S. 722, 737 (1991).
Coleman, decided after Harrison, Solina, and much of their progeny,
suggests that a per se rule is inappropriate in many cases covered,
or arguably covered, by it.5
Several of the cases in which courts have applied a per se
rule have involved counsel with considerable practical experience
to compensate for their failure to pass the bar.6 Attorneys in
such circumstances probably would not provide ineffective
assistance in “almost all” cases. Even attorneys suffering from a
conflict of interest probably would not provide ineffective
assistance in almost all cases, particularly where, as here, a
genuinely attractive plea bargain was available. Thus, Coleman
5
Of course, the Coleman requirement would not apply if, as the Solina
court believed, effective assistance of counsel were a prerequisite to the trial
court’s jurisdiction. See Solina, 709 F.2d at 168 (“Application of a per se rule
appears to us to be required by . . . Johnson v. Zerbst. . . .”); Johnson v.
Zerbst, 458 U.S. 458, 467 (1937) (“If the accused, however, is not represented
by counsel . . . the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence . . . .”). After Strickland v. Washington, 466 U.S. 668
(1984), however, the jurisdictional requirement no longer applies, and the per
se rule must be justified on prudential grounds. See Washington, 466 U.S. at 668
(requiring defendant to prove prejudice as well as that “counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment”).
The Washington Court, id. at 692, stated that prejudice can be presumed only
where counsel actively represents conflicting interests, and that even then the
presumption does not equate with a per se rule.
6
See, e.g., Solina, 709 F.2d at 169 (attorney graduated from law school
but failed the bar); United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990)
(attorney obtained license fraudulently, but appeared to have practiced
successfully for 15-20 years).
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counsels rejecting the per se rule.
In addition, the per se rule requires courts to draw difficult
lines in order to determine which cases merit application of the
rule. The Solina court would not apply a per se rule to a
technical disbarment, such as for failure to pay dues, but would
apply it to attorneys disbarred for more substantive reasons. See
Blanton, 896 F. Supp. at 1462. Yet, attorneys are suspended,
disbarred, or unlicensed for numerous reasons, reflecting a wide
range of qualities of performance. Where, as here, the licensing
defect does not obviously demonstrate incompetence, the wrong
result may be reached, so a court may be hesitant to apply the rule
at all.
C.
Because we conclude that prudential considerations do not
justify applying a rule of per se ineffectiveness to cases of
representation by improperly uncredentialed lawyers, Maria-
Martinez’s allegations of ineffective assistance must be evaluated
on the merits under the Washington standard. As is our practice in
direct appeals alleging ineffectiveness assistance of counsel, we
AFFIRM the judgment, but without prejudice to a subsequent motion
under 28 U.S.C. § 2255. We express no view on the merits of such
a motion.
11