Argelio Gonzales v. Brett Mize ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1875
A RGELIO G ONZALES,
Petitioner-Appellant,
v.
B RETT M IZE,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06 CV 514—Theresa L. Springmann, Judge.
A RGUED A PRIL 2, 2009—D ECIDED M AY 11, 2009
Before B AUER and F LAUM, Circuit Judges, and K APALA ,
District Judge.Œ
K APALA, District Judge. Argelio Gonzales, an Indiana
state prisoner serving a 30-year sentence for various drug-
related offenses, challenges the district court’s denial of
Œ
The Honorable Frederick J. Kapala of the United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 08-1875
his habeas corpus petition, 28 U.S.C. § 2254. On appeal,
Gonzales argues that he received ineffective assistance
of counsel as a result of his trial counsel’s conflicts of
interest. We affirm.
I. Background
Attorney Jay Hirschauer represented Gonzales at a jury
trial that began on April 27, 1998, and ended April 30, 1998.
The Indiana Court of Appeals summarized the facts
presented at trial as follows:
[O]n December 29, 1997, Indiana State Police and
Logansport Police Department officers conducted an
undercover sting operation in which Gonzales sold a
police informant a total of 1.16 grams of crack cocaine
during two transactions conducted inside Gonzales’
apartment. Police recorded the transactions on both
audio and video tape. A subsequent search of the
apartment, which Gonzales shared with two other
individuals, produced 12.35 grams of crack cocaine,
2.69 grams of powder cocaine, and 31.90 grams of
marijuana. Police also discovered an additional 9.39
grams of crack cocaine on the ground below a second
story bedroom window. The apartment was located
382 feet from Crayon Campus, a licensed child care
home.
The jury found Gonzales guilty of possession of cocaine
and dealing cocaine within 1,000 feet of school property,
possession of marijuana, and maintaining a common
nuisance. The court sentenced him to concurrent prison
No. 08-1875 3
terms of 30 years on each of the cocaine charges, and 18
months on each of the other two charges. On direct appeal,
the Indiana Court of Appeals upheld Gonzales’ convictions
and sentences. Gonzales did not file a petition for transfer
to the Indiana Supreme Court.
In an amended post-conviction petition filed on Novem-
ber 12, 2004, in Cass County circuit court, Gonzales raised
four arguments: (1) his trial counsel’s simultaneous
representation of him, codefendants Jorge Perez and Laura
Lapcheska, and exculpatory witnesses Arnaldo Garcia and
Larry Campbell violated his right to conflict-free counsel
and impaired his counsel’s representation of him; (2) his
counsel failed to present exculpatory evidence at trial;
(3) he was deprived of his right to a unanimous jury
verdict; and (4) his appellate counsel, who also was his
trial counsel, was ineffective in failing to raise the
non-unanimous verdict issue on direct appeal.
At the evidentiary hearing on Gonzales’ amended
post-conviction petition, Hirschauer agreed that he repre-
sented Lapcheska at the same time as Gonzales. Hirschauer
explained that an initial written plea agreement offered to
Lapcheska called for her to plead guilty to possession of
cocaine in exchange for a fifteen-year prison sentence. It
did not mention her testifying against Gonzales. According
to Hirschauer, the prosecutor never made an offer to
Lapcheska which required her to testify against Gonzales.
If such an offer was made, Hirschauer said that he would
not have communicated it to her but, rather, he would have
gotten out of the case due to a conflict of interest.
Lapcheska ultimately refused the first plea agreement.
4 No. 08-1875
After a month or two, Lapcheska accepted a second written
plea agreement for 20 years’ imprisonment. Like the first
plea agreement, it did not require her to testify. Hirschauer
said that the prosecution had no need for Lapcheska to
testify against Gonzales because the police had both
Gonzales and Lapcheska on videotape. After reviewing
copies of Lapcheska’s first and second plea agreements,
Hirschauer testified that neither required her to testify
against anyone. Hirschauer said that the second plea
agreement provided that she give a clean-up statement,
but he did not think that she ever did.1
Laura Lapcheska testified that she and Gonzales had
dated, engaged in a drug deal operation, and were
arrested at the same time. The first plea agreement
offered to her included a 15-year prison sentence and
required her to provide a clean-up statement. According to
Lapcheska, Hirschauer explained to her and to her
parents that a clean-up statement entailed testimony
about her involvement with drug dealing and that she
would be exempt from any prosecution other than mur-
der. When asked whether Hirschauer’s explanation of the
clean-up statem ent included a requirem ent to
testify against Gonzales, Lapcheska responded, “Well, to
tell what happened, he explained it as I would have to
1
As this opinion later explains, the clean-up statement provi-
sion gave Lapcheska the option to reveal any criminal activity
she may have committed prior to December 29, 1997, in ex-
change for the State of Indiana’s agreement not to prosecute
her for such criminal activity. The record does not indicate
whether a clean-up statement is given under oath.
No. 08-1875 5
mention, to name, and to me, to mention anybody’s name
would be giving testimony against them . . . So yes.”
Lapcheska said that once Hirschauer explained the
clean-up statement, she decided not to accept the first
plea agreement. Lapcheska testified further that she later
accepted a 20-year plea agreement that did not require
a clean-up statement.
On cross-examination, after being shown the first
written plea agreement, Lapcheska acknowledged that it
contained no reference to a clean-up statement. She added
that she did not recall reading the agreement. She did
remember that Hirschauer discussed the plea agreement
with her and her parents. Lapcheska agreed that it was
possible that she was confused about when the conversa-
tion between her, Hirschauer, and her parents took
place, but said that she remembered that she did not
accept the first plea agreement because she refused to
testify against Gonzales.
Arlita Morehead, Lapcheska’s mother, testified that
while she did not remember who explained the clean-up
statement, she said that it was explained that Lapcheska
would have to testify against Gonzales. Morehead could
not remember whether Hirschauer was even present
during this alleged explanation.
Gonzales testified that Hirschauer never told him that
he also represented Lapcheska, Perez, Campbell, and
Garcia. Gonzales said Hirschauer never discussed any
conflict of interest with him.
The first and second plea agreements offered to
Lapcheska were admitted as exhibits at the hearing. The
6 No. 08-1875
first plea agreement had no provision for Lapcheska to
testify against anyone or to give a clean-up statement. The
second plea agreement, entered on March 27, 1998, pro-
vided in pertinent part:
a. The Defendant agrees to plead guilty to the infor-
mation charging Dealing cocaine within 1000’ of
school property.
b. The State of Indiana agrees to dismiss the informa-
tion charging count 1, [and] 3 and any criminal
activity prior to 12/29/97 disclosed by defendant
in a clean-up statement given by 3/30/98.
c. The Court will impose as a sentence in this case
the following:
1. Twenty years imprisonment in Indiana Depart-
ment of Corrections.
The Cass County Circuit Court found that neither plea
agreement required Lapcheska to testify against anyone.
The Court interpreted the second plea agreement to
mean that the charges against Lapcheska in counts 1, 3, and
4 would be dismissed, and that the State of Indiana
agreed not to file charges against Lapcheska for any
criminal activity that she committed prior to December 29,
1997 and disclosed in a clean-up statement.2 Based on these
findings of fact, the circuit court held that the evidence
was insufficient to support a charge of ineffective assis-
tance of trial counsel based on conflicts of interest arising
2
The plea agreement actually refers to “count 1 [and] 3,” not 1,
3, and 4.
No. 08-1875 7
out of Hirschauer’s representation of various defendants.
The court did, however, set aside Gonzales’ conviction
for dealing cocaine on the basis that he was deprived of
his right to a unanimous jury verdict.
Before the Indiana Court of Appeals, Gonzales argued
that Hirschauer had a conflict of interest due to his joint
representation of him, Lapcheska, Perez, Garcia, and
Campbell. With respect to Lapcheska, Gonzales argued
that a conflict of interest arose when Hirschauer
negotiated a plea agreement for Lapcheska that called for
her to testify against Gonzales. Citing Cuyler v. Sullivan, 446
U.S. 335 (1980), Gonzales maintained that because he
showed an actual conflict of interest, he did not need to
demonstrate prejudice, that is, that there was a rea-
sonable probability that, but for the ineffective
assistance, the result of the proceedings would have been
different. See Strickland v. Washington, 466 U.S. 668, 687-88
(1984).
The Indiana Court of Appeals set out the standards for
ineffective assistance of counsel stated in both Strickland,
466 U.S. at 687, and Cuyler, 446 U.S. at 348, and then noted
that Gonzales raised an actual conflict of interest argu-
ment only as to Hirschauer’s dual representation of
Gonzales and Lapcheska. The court found no actual
conflict of interest because its review of the record demon-
strated that the terms of the plea agreements that
Hirschauer negotiated for Lapcheska did not require
Lapcheska to testify against Gonzales, and because
Lapcheska never gave a clean-up statement. The Court
concluded that Gonzales failed to demonstrate an actual
8 No. 08-1875
conflict of interest.3 Consequently, the Indiana Court of
Appeals affirmed the circuit court’s ruling on Gonzales’
post-conviction petition.
Gonzales filed a petition to transfer to the Indiana
Supreme Court stating that the question presented on
transfer was:
Argelio Gonzales’ attorney, Jay Hirschauer, tried to
help the State prosecute Mr. Gonzales by negotiating
a plea agreement for Mr. Gonzales’ co-defendant
which called for the co-defendant to testify against
Mr. Gonzales. The Court of Appeals erred in finding
that this did not create a conflict of interest.
The Indiana Supreme Court denied transfer.
Gonzales then petitioned for a writ of habeas corpus
under § 2254 in which he raised the three issues that
had been advanced on his direct appeal4 and a claim of
ineffective assistance of counsel. The district court deter-
3
The Indiana Court of Appeals also noted that the circuit
court was entitled to reject Gonzales’ and Lapcheska’s testi-
mony that Hirschauer did not inform them of the dual represen-
tation, in favor of Hirschauer’s contrary testimony. The Court
did not, however, explain how this finding was significant to
the alleged constitutional violation.
4
Gonzales’ three arguments on his direct appeal were: (1) the
evidence was insufficient to prove that the sale of cocaine
was conducted within 1,000 feet of a school; (2) the trial court
erred by taking judicial notice of an amendment to a statute
and so instructing the jury; and (3) the State should have
been required to prove his knowledge that he was within
1,000 feet of a school.
No. 08-1875 9
mined that although Gonzales attempted to present
multiple reasons for counsel’s ineffectiveness, the only
issue exhausted in the Indiana courts, and therefore
properly considered on habeas corpus review, was the
issue presented in the petition to transfer set out above.
The district court concluded that, “[b]ecause Gonzales has
not demonstrated that the State Court was unreasonable
in its determination of his claim that his attorney was
ineffective because of a conflict of interest, this ground
presents no basis for habeas corpus relief.” After the
district court denied Gonzales a certificate of appeal-
ability, we issued a certificate only on the question of
whether Gonzales received ineffective assistance of
counsel.
II. Analysis
On appeal, Gonzales contends that the district court
erred when it rejected his claim that he is being held in
violation of the Sixth Amendment to the United States
Constitution because he was denied effective assistance
of counsel when his trial attorney simultaneously repre-
sented him, Lapcheska, and Campbell. Gonzales main-
tains that the conflicts affected the adequacy of his at-
torney’s representation and that, under such circum-
stances, prejudice is presumed.
Our review of a district court’s denial of a petition for
a writ of habeas corpus is de novo. Julian v. Bartley, 495
F.3d 487, 491 (7th Cir. 2007). We review the decision of
the last state court that substantively adjudicated each
claim. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
10 No. 08-1875
We must evaluate Gonzales’ petition under the
Antiterrorism and Effective Death Penalty Act (AEDPA),
specifically 28 U.S.C. § 2254(d). See Knowles v. Mirzayance,
556 U.S. ___, ___, 129 S. Ct. 1441, 1418 (2009). Under that
provision, federal habeas relief may not be granted with
respect to a claim which was adjudicated on the merits
in the state court unless the adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Mixed questions of law and fact, such
as ineffective assistance of counsel, are subject to review
under § 2254(d)(1). Porter v. Gramley, 112 F.3d 1308, 1313
(7th Cir. 1997). Factual determinations made by a
state court are presumed to be correct unless rebutted
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner has represented that he is proceeding under
§ 2254(d)(1).
A. Conflict of Interest as a Result of Representing
Campbell
The State of Indiana argues that the district court prop-
erly determined that Gonzales procedurally defaulted his
claim based on Hirschauer’s dual representation of him
No. 08-1875 11
and Campbell when he failed to make this argument in
his petition to transfer to the Indiana Supreme Court.
We agree.
A federal court may not grant an application for a writ
of habeas corpus from a prisoner being held in state
custody unless the petitioner has exhausted his available
state remedies prior to seeking federal habeas relief. See
28 U.S.C. § 2254(b)(1)(A). “This so-called exhaustion-
of-state-remedies doctrine serves the interests of fed-
eral-state comity by giving states the first opportunity to
address and correct alleged violations of a petitioner’s
federal rights.” Lieberman v. Thomas, 505 F.3d 665, 669
(7th Cir. 2007). Fair presentment contemplates that the
operative facts and the controlling legal principles of the
federal claim be submitted to the state court through one
complete round of state-court review, either on direct
appeal or in post-conviction proceedings. Malone v. Walls,
538 F.3d 744, 753 (7th Cir. 2008). “A habeas petitioner
who has exhausted his state court remedies without
properly asserting his federal claim at each level of state
court review has procedurally defaulted that claim.” Lewis
v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Whether a
claim is procedurally defaulted is a question of law this
court reviews de novo. Malone, 538 F.3d at 753.
Gonzales concedes that his conflict of interest claim
based on Hirschauer’s dual representation of him and
Campbell was not included in the “question presented
on transfer” section of his petition for transfer to the
Indiana Supreme Court, but maintains that he made
that argument in his petition for transfer, thereby alerting
12 No. 08-1875
the Indiana Supreme Court that he was raising the is-
sue. We disagree.
Gonzales included a description of Hirschauer’s
dual representation of him and Campbell in the “Back-
ground and Prior Treatment of Issues” section of his
petition for transfer but made no substantive argument
that an actual conflict of interest arose out of that dual
representation. The passing references to Campbell did
not sufficiently alert the Indiana Supreme Court that
Gonzales was arguing that there was an actual conflict of
interest as a result of Hirschauer’s dual representation of
Gonzales and Campbell. See Stevens v. McBride, 489 F.3d
883, 894 (7th Cir. 2007) (“[T]he failure to alert the state
court to a complaint about one aspect of counsel’s assis-
tance will lead to a procedural default.”). The question
presented on transfer to the Indiana Supreme Court was
clearly limited to a claim of ineffective assistance of
counsel growing out of Hirschauer’s dual representation
of Gonzales and Lapcheska. Thus, we agree with the
district court’s determination that this issue is pro-
cedurally defaulted.5
5
Gonzales also argues that the Indiana Court of Appeals
incorrectly applied Strickland to his claim concerning
Hirschauer’s representation of Campbell when in fact he did
advance an actual conflict of interest argument with respect to
the representation of Campbell which would be controlled
by Cuyler. After reviewing Gonzales’ post-conviction appellate
brief, we disagree that he advanced a Cuyler claim before the
Indiana Court of Appeals. Moreover, even assuming arguendo
that Gonzales did make a Cuyler argument before that court
(continued...)
No. 08-1875 13
Where, as here, a petitioner has procedurally defaulted
a claim, he may obtain federal habeas relief only if he
can show either cause and prejudice for the default
(i.e., some external obstacle prevented petitioner from
presenting his claim to the state courts) or that a failure
to grant him relief would result in a fundamental miscar-
riage of justice (i.e., a claim that the constitutional depriva-
tion probably has resulted in a conviction of one who
is actually innocent). Blintz v. Bertrand, 403 F.3d 859, 863
(7th Cir. 2005). Gonzales does not make either of these
arguments. For these reasons, the claim of an actual
conflict of interest arising from Hirschauer’s dual represen-
tation of Gonzales and Campbell is procedurally defaulted.
B. Conflict of Interest as a Result of Representing
Lapcheska
One of the basic duties that counsel owes to a criminal
defendant is a duty of loyalty, including a duty to avoid
conflicts of interest. Strickland, 466 U.S. at 688. “[M]ultiple
representation does not violate the Sixth Amendment
unless it gives rise to a conflict of interest.” Cuyler, 446
U.S. at 348. A lawyer representing codefendants
whose interests conflict cannot provide adequate legal
assistance. Id. at 345.
5
(...continued)
with regard to Hirschauer’s representation of Campbell, he
clearly did not include that argument in his petition for
transfer to the Indiana Supreme Court, and therefore, as
explained above, the argument is procedurally defaulted.
14 No. 08-1875
To establish ineffective assistance of counsel under
Stickland, a petitioner must establish (1) that his attor-
ney’s representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable prob-
ability that, but for the ineffective assistance, the result of
the proceedings would have been different. Strickland, 466
U.S. at 687-88. In contrast, under Cuyler, “to establish a
violation of the Sixth Amendment, a defendant who raised
no objection at trial must demonstrate that an actual
conflict of interest adversely affected his lawyer’s perfor-
mance.” Id. at 348. While a defendant who shows that
a conflict of interest adversely affected his counsel’s
performance need not show prejudice to prevail, “until a
defendant shows that his counsel actively represented
conflicting interests, he has not established the constitu-
tional predicate for his claim of ineffective assistance.”
Id. at 349-50. An adverse effect is established by showing
that “but for the attorney’s actual conflict of interest, there
is a reasonable likelihood that counsel’s performance
somehow would have been different.” Stoia v. United
States, 22 F.3d 766, 771 (7th Cir. 1994) (quotation marks
omitted).
Gonzales argues that the district court erred in finding
that the Indiana Court of Appeals was reasonable in
determining that under Cuyler no actual conflict of interest
arose out of Hirschauer’s dual representation of
Gonzales and Lapcheska. Gonzales first argues that there
was an actual conflict of interest because the first plea
agreement required Lapcheska to testify against Gonzales.
Gonzales bases this argument not on the text of the first
plea agreement, which clearly has no such requirement,
but, rather, on Lapcheska’s and Morehead’s testimony
No. 08-1875 15
that they understood the first plea agreement to con-
tain such a requirement. Gonzales contends that no
court has addressed whether their testimony should be
disbelieved in favor of Hirschauer’s contrary testimony.
Gonzales’ argument lacks merit. Lapcheska testified
that the clean-up statement was in the first plea agree-
ment, and not the second, and that Hirschauer’s explana-
tion of the clean-up statement provision in the first plea
agreement caused her to understand that Lapcheska had
to testify against Gonzales. Morehead only remembered
that someone explained that Lapcheska would have to
testify against Gonzales, but did not remember if
Hirschauer was present or when the explanation occurred.6
The Indiana Court of Appeals affirmed the Cass County
Circuit Court’s conclusion that the first plea agree-
ment offered did not include a clean-up statement. This
factual determination was reasonable and constituted a
rejection of Lapcheska’s and Morehead’s testimony that
the first plea agreement contained a clean-up statement
which Lapcheska understood to require her testimony
against Gonzales. The Indiana Court of Appeals was
entitled to reject Lapcheska’s and Morehead’s testimony
on this point in favor of Hirschauer’s testimony. Doing
so was reasonable especially in view of the fact that the
first plea agreement had no such provision written into
it and it appears, as indicated by the second plea agree-
ment, that when a clean-up statement is contemplated
6
Gonzales has not argued that Lapcheska and Morehead were
mistaken and that the clean-up statement explanation was
actually in connection with the second plea agreement.
16 No. 08-1875
by the parties it is expressly stated in the written agree-
ment. Thus, Gonzales has failed to present clear and
convincing evidence to rebut the Indiana Court of Ap-
peals’ conclusion that the first plea agreement did not
require Lapcheska to testify against Gonzales. In addi-
tion, although not reached by the Indiana courts, we fail
to see how Gonzales would be able to satisfy the second
prong of Cuyler when there is nothing in the record to
show that Hirschauer did anything more than convey
an offer from the State to Lapcheska and it is undis-
puted that she did not accept it.
Gonzales also makes the argument that the Indiana
Court of Appeals implicitly found that the first plea
agreement required testimony against Gonzales when it
wrote “Lapcheska turned down the first plea, and she
later accepted a second plea agreement with the sen-
tence increased to twenty years but with no requirement
to testify against Gonzales.” Gonzales asserts that the
choice of the coordinating conjunction “but” implies
that the Indiana Court of Appeals believed that some
requirement to testify was removed from the first plea
agreement. This argument was made for the first time
in Gonzales’ reply brief and as a result is waived. See
Simpson v. Office of the Chief Judge of Will County, 559
F.3d 706, 719 (7th Cir. 2009) (“Arguments raised for the
first time in a reply brief are waived.” (quotation marks
omitted)).7
7
Waiver aside, the sentence quoted by Gonzales is from the
“Facts” section of the Indiana Court of Appeals’ decision and it
(continued...)
No. 08-1875 17
Next, Gonzales maintains that the second plea agree-
ment itself clearly and convincingly demonstrates that
the Indiana Courts incorrectly concluded that the second
plea agreement contained no requirement that Lapcheska
testify against Gonzales. Gonzales argues that the
moment Lapcheska was offered the second plea agree-
ment requiring her to give a clean-up statement,
Hirschauer was conflicted. Gonzales reasons that
Hirschauer’s duty of loyalty to Lapcheska required him
to counsel her as to the benefits of the plea agreement.
However, if Lapcheska took the second plea agreement
in exchange for its benefits, Lapcheska would have to
divulge information that would inculpate Hirschauer’s
other client, Gonzales, because whatever criminal history
Lapcheska might have “come clean” about was “intimately
entwined” with Gonzales and would necessarily involve
prior criminal activity that she engaged in with Gonzales.
Gonzales’ argument is flawed in that it assumes that the
clean-up statement in the second plea agreement requires
Lapcheska to disclose more than her own criminal
7
(...continued)
describes Lapcheska’s testimony concerning the second plea
agreement. This sentence was not a finding of fact and, in any
event, cannot fairly be construed as a finding that the first
plea agreement contained a requirement that Lapcheska
testify against Gonzales in view of the fact that the Indiana
Court of Appeals explicitly concluded in the “Discussion and
Decision” section of its decision that “the record demonstrates
that the requirement to testify was not written into either
plea agreement.”
18 No. 08-1875
activity in order to receive immunity from prosecution
for such activity. It does not. In addition, while the
second plea agreement gave Lapcheska the option of
providing a clean-up statement, it did not require it.
Moreover, the clean-up statement contemplated
disclosure of her criminal activity prior to December 29,
1997, the date of the crimes with which she and Gonzales’
were charged. Gonzales has not pointed to any evidence
indicating that Hirschauer was actively representing
conflicting interests at the time Lapcheska accepted the
second plea agreement, given that there is no evidence
in this record suggesting that Hirschauer knew that
Lapcheska could provide information about joint criminal
activity involving her and Gonzales which occurred
prior to December 29, 1997. See United States v. Hopkins,
43 F.3d 1116, 1119 (6th Cir. 1995) (“A conflict is hypotheti-
cal where . . . the attorney does not in fact know of the
conflict from the dual representation. Unless the attorney
knows of the conflict, he or she cannot make a choice
between alternative courses of action depending on
which client is to be favored.”).
When asked at oral argument what evidence there
was that Hirschauer had knowledge of any pre-Decem-
ber 29, 1997, joint criminal activity of Gonzales and
Lapcheska, Gonzales’ counsel’s response was two-fold.
First, he said Hirschauer testified that Gonzales and
Lapcheska were lovers and that their criminal history was
intertwined. Second, Gonzales’ counsel said that
Hirschauer’s knowledge of Gonzales’ and Lapcheska’s
prior criminal activity could be inferred from
Hirschauer’s testimony that he would not have com-
No. 08-1875 19
municated to Lapcheska a plea agreement that contem-
plated her testimony against Gonzales. According to
counsel, this suggests that Hirschauer was aware of
some prior criminal activity about which Lapcheska
could testify.
Our review of Hirschauer’s testimony, however, reveals
nothing indicating Hirschauer’s knowledge of any pre-
December 29, 1997, joint criminal activity of Gonzales
and Lapcheska. While Hirschauer testified that he knew
that Gonzales and Lapcheska were lovers, he said
nothing which indicated that he was aware of any joint
criminal activity on their part that occurred prior to
December 29, 1997. To conclude that Gonzales and
Lapcheska had engaged in prior criminal activity just
because they were lovers is just speculation.
Hirschauer’s comment indicating that he would not
communicate to Lapcheska any plea agreement
requiring her testimony against Gonzales did not show
that he knew Lapcheska could implicate Gonzales in
their pre-December 29, 1997, criminal activity. When
Hirschauer made that comment, he clearly was referring
to a plea agreement that contemplated Lapcheska testify-
ing against Gonzales in the pending drug case, rather
than about their prior criminal activity. In our view,
Hirschauer’s statement that he would not have communi-
cated to Lapcheska a plea agreement that required
her testimony against Gonzales combined with the fact
that he actually presented the plea agreement to
Lapcheska, if anything, demonstrates that he had no
knowledge of any prior joint criminal activity of his
20 No. 08-1875
clients. Therefore, Gonzales has failed to rebut with clear
and convincing evidence the Indiana Court of Appeals’
determination that the second plea agreement did not
require Lapcheska to testify against Gonzales and has
failed to overcome the presumption of correctness. See
28 U.S.C. § 2254(e)(1). Consequently, Gonzales has not
shown that the Indiana Court of Appeals’ determination
that he failed to demonstrate an actual conflict of interest
was contrary to, or involved an unreasonable applica-
tion of, Cuyler. See 28 U.S.C. § 2254(d)(1).
Gonzales’ last contention on appeal is that the Indiana
Court of Appeals (1) ignored the main focus of his argu-
ment, that is, that the requirement to testify against
Gonzales was unstated and that the second plea agree-
ment’s clean-up statement provision created a conflict
even if there was no written requirement to testify; and
(2) incorrectly added a new factor to the Cuyler test, that is,
that parties can waive an actual conflict of interest simply
by being placed on notice of the joint representation.8
8
Gonzales also argues that the Cass County Circuit Court did
not even recognize the test set out in Cuyler, let alone apply it
correctly. As noted above, we review the decision of the last
court to address Gonzales’ contentions on the merits. See Watson,
560 F.3d at 690. The Indiana Court of Appeals’ order is the
operative decision and it clearly applied the Cuyler test. More-
over, while it is true that the circuit court did not cite Cuyler, a
state court’s decision is not contrary to clearly established
federal law merely because the court does not cite federal law.
See Bell v. Cone, 543 U.S. 447, 455 (2005) (“Federal courts are not
(continued...)
No. 08-1875 21
With respect to Gonzales’ first point, the Indiana
Court of Appeals did not ignore Gonzales’ arguments
concerning the alleged actual conflict of interest arising
out of the dual representation of Gonzales and
Lapcheska; as we have explained it rejected them.
While the Indiana Court of Appeals analysis was brief
and focused on the fact that a requirement to testify was
not written into either plea agreement, § 2254(d) deference
still applies to perfunctory or summary dispositions.
See Watson, 560 F.3d at 692; Hennon v. Cooper, 109 F.3d
330, 335 (7th Cir. 1997) (holding that the criterion “is
whether the determination is at least minimally con-
sistent with the facts and circumstances of the case”
regardless of any deficiency in the discussion of the
reasons).
8
(...continued)
free to presume that a state court did not comply with con-
stitutional dictates on the basis of nothing more than a lack of
citation.”); Early v. Packer, 537 U.S. 3, 8 (2002) (holding that a
state court does not have to cite to Supreme Court
“cases—indeed, [§ 2254(d)] does not even require awareness of
[the Supreme Court] case, so long as neither the reasoning
nor the result of the state-court decision contradicts them”).
With regard to the conflict-of-interest issue, the circuit court
found no requirement in either plea agreement that Lapcheska
testify against Gonzales and, therefore, found insufficient
evidence of an actual conflict of interest. As such, even though
it did not cite Cuyler, the circuit court concluded that the
first requirement of the Cuyler test—demonstrating an actual
conflict of interest—was not met.
22 No. 08-1875
In any event, even if the Indiana Court of Appeals did
not address Gonzales’ specific argument, we would then
apply de novo review under § 2254(a). See Aleman v.
Sternes, 320 F.3d 687, 690 (7th Cir. 2003). Were we to
engage in de novo review under § 2254(a), this court
would reject, for the reasons stated above, Gonzales’
argument that compliance with the clean-up statement
provision of the second plea agreement would have
necessarily inculpated Gonzales and in turn, created an
actual conflict of interest growing out of Hirschauer’s
dual representation of Gonzales and Lapcheska.
We also would conclude under § 2254(a) review that
Gonzales has failed to show that the alleged actual
conflict of interest adversely affected the adequacy of
Hirschauer’s representation of Gonzales. In his brief,
Gonzales argues that at the moment Hirschauer encour-
aged Lapcheska to “come clean,” his “basic strategic
decisions” about his representation of Gonzales were
affected. Gonzales does not, however, explain what
those basic strategic decisions were or how counseling
Lapcheska to accept the second plea agreement affected
those decisions. When asked at oral argument what
Hirschauer would have done differently had he not
been laboring under the alleged actual conflict of
interest, Gonzales’ counsel said that he would not have
counseled Lapcheska to accept the plea agreement
which contemplated her trading information for le-
niency. This response does not satisfy the second
element of the Cuyler test. Gonzales fails to explain how
the clean-up statement provision in Lapcheska’s second
plea agreement would adversely affect Hirschauer’s
No. 08-1875 23
representation of Gonzales in light of the fact that
Lapcheska’s opportunity to provide information in ex-
change for immunity lasted only 3 days and lapsed ap-
proximately one month before Gonzales’ trial. Gonzales
does not demonstrate how in any other way an actual
conflict of interest adversely affected Hirschauer’s repre-
sentation of Gonzales.
With respect to Gonzales’ second point, although the
Indiana Court of Appeals did note that the circuit court
was entitled to reject Gonzales’ and Lapcheska’s testi-
mony indicating that Hirschauer did not inform them of
the dual representation, the Court did not rely upon a
waiver by Gonzales of Hirschauer’s purported actual
conflict of interest. Nevertheless, any improper finding
concerning a waiver of an actual conflict of interest
would not take away from the Indiana Court of Appeals’
conclusion that Gonzales failed to meet the first prong of
the Cuyler test. Therefore, this court rejects Gonzales’
arguments that the Indiana Court of Appeals’ decision
was contrary to, or an unreasonable application of,
clearly established federal law.
III. Conclusion
For the foregoing reasons, the judgment of the District
Court for the Northern District of Indiana is A FFIRMED.
5-11-09