Plumlee v. Masto ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARY JAMES PLUMLEE, 
Petitioner-Appellant, No. 04-15101
v. D.C. No.
CATHERINE CORTEZ MASTO,  CV-00-00244-
Attorney General State of Nevada; DWH/VPC
E.K. MCDANIEL, Warden, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding
Argued and Submitted
October 9, 2007—San Francisco, California
Filed January 17, 2008
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Harry Pregerson, Barry G. Silverman,
M. Margaret McKeown, Raymond C. Fisher,
Ronald M. Gould, Richard R. Clifton, Consuelo M. Callahan,
Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Pregerson
647
650 PLUMLEE v. MASTO
COUNSEL
Jason F. Carr, AFPD, Las Vegas, Nevada, for the petitioner-
appellant.
Joseph W. Long, Deputy Attorney General, Ely, Nevada, for
the respondent-appellee.
David K. Neidert, Deputy Attorney General, Reno, Nevada,
for the respondent-appellee.
OPINION
SILVERMAN, Circuit Judge:
The Supreme Court has held that a criminal defendant has
a constitutional right to counsel who is free of conflicts of
interest. It also has held that a defendant does not have a con-
stitutional right to an appointed lawyer with whom he has a
PLUMLEE v. MASTO 651
“meaningful relationship” so long as the lawyer acts as the
client’s advocate. In this case, appellant Lary James Plumlee
contends that he was unconstitutionally forced to represent
himself when the Nevada state trial court refused to replace
the Public Defender’s Office, which he came to distrust and
with which he would not cooperate. He claims that he had
developed an “irreconcilable conflict” with counsel. Before
the trial began, and again in state post-conviction proceedings,
the trial judge made inquiry and found no actual conflict
underlying Plumlee’s refusal to work with his appointed law-
yer because counsel committed no misconduct, and Plumlee’s
reasons for distrusting the lawyer were not supported.
We hold today that the Nevada Supreme Court did not mis-
apply clearly established federal law as determined by the
Supreme Court when it ruled that Plumlee’s right to the effec-
tive assistance of counsel was not violated by the trial judge’s
refusal to appoint a different lawyer.
I. Background
On June 4, 1991, Plumlee was charged in Washoe County,
Nevada with the armed robbery and murder of Wilbur Rich-
ard Beard. The Washoe County Public Defender’s Office was
appointed to represent him, and Plumlee was assigned Deputy
Public Defender David Allison. Allison’s boss was Chief
Deputy Public Defender Shelly O’Neill.
Shortly after his arrest, Plumlee heard through the grape-
vine that O’Neill was good friends with his roommate, John
Dewey, who also was a suspect in the Beard robbery and mur-
der. Plumlee came to believe that O’Neill had leaked to
Dewey privileged information — namely, that Plumlee was
going to point the finger at Dewey.
Plumlee also came to distrust Allison. Prior to being
assigned to Plumlee’s case, Allison had applied for a position
at the Washoe County District Attorney’s Office, but had not,
652 PLUMLEE v. MASTO
Plumlee claimed, mentioned that to Plumlee. Allison received
a job offer from the D.A.’s Office during his representation of
Plumlee and took the job. Plumlee believed that Allison had
deceived him about his applicant status at the D.A.’s Office
when Plumlee had asked him about it.
In addition, Plumlee came to believe that, before Allison
started his new job, he was leaking privileged information to
the D.A.’s Office. Plumlee claimed that the police had
released his car from impound to the lienholder soon after
Plumlee had told Allison that exculpatory evidence might be
found in the vehicle.
Steven Gregory was assigned to Plumlee’s case after Alli-
son left for the D.A.’s Office. Two events caused Plumlee to
believe that Gregory was acting against his interest. First,
Gregory had presented Plumlee with a plea offer after Plum-
lee had told him that he wanted plea discussions to move for-
ward only with his prior approval. Second, after Plumlee
learned of a bail order and attempted to discuss it with Greg-
ory, the attorney told Plumlee that he “needed psychiatric
treatment, because no bail order existed.” In fact, the order
did exist but had been misplaced.
Shortly thereafter, Gregory moved to have the Public
Defender’s Office “relieved” from the case because a lack of
trust was inhibiting the formation of a functional attorney-
client relationship. In an affidavit in support of the motion,
Gregory attested to Plumlee’s general distrust of the Public
Defender’s Office and, specifically, Plumlee’s suspicion that
Allison had been leaking information to the D.A.’s Office
about his case. The trial judge, Judge Mills Lane, III, held a
proceeding in open court to consider the motion, at which
Plumlee was present. At the hearing, Judge Lane heard from
both Gregory and the prosecution about the alleged leaks
from Allison to the D.A.’s Office. He also inquired into the
problems with the attorney-client relationship. Gregory told
the Judge that, “unfortunately, because of Mr. Plumlee’s mis-
PLUMLEE v. MASTO 653
trust with the Public Defender’s Office and anyone attached
to the Public Defender’s Office, he is unable to properly assist
me, therefore, making my efforts less than effective.” Shelly
O’Neill’s friendship with John Dewey was not mentioned. At
the conclusion of the proceedings, Judge Lane found that no
improper conversations occurred, and that no conflict was
created by Allison’s transfer to the D.A.’s Office. Also, citing
the rule enunciated by the Supreme Court in Morris v. Slappy,
461 U.S. 1, 14 (1983), that the Sixth Amendment does not
entitle a defendant to a “meaningful relationship” with his
attorney, Judge Lane denied the motion to remove the Public
Defender’s Office from the case.
About two weeks later, Plumlee through Gregory moved to
disqualify the Washoe County D.A.’s Office from prosecuting
his case because of an alleged imputed conflict arising from
Allison’s new job with that office. Judge Lane found that
Allison had been adequately screened from the matter within
the D.A.’s Office and denied the motion.
At the hearing on the motion to disqualify the D.A.’s
Office, Gregory renewed his motion to relieve the Public
Defender’s Office of its representation of Plumlee. The
motion was again denied. Judge Lane then informed Plumlee
that he had the right to be represented by competent counsel
and that Gregory was competent counsel. Judge Lane told
Plumlee that he also had the constitutional right to represent
himself, but those were his only two options. Judge Lane
made it clear that he would not remove Gregory and appoint
private counsel in his place.
The next day, in revisiting the issue of Plumlee’s possible
self-representation, Judge Lane told him, “the rules are going
to apply to you same as they apply to everybody else, but if
you want to exercise your constitutional right to be your law-
yer and defend yourself in this offense, that motion will be
granted.” Plumlee stated that he wanted to act as his own
attorney and the Public Defender’s Office was appointed as
654 PLUMLEE v. MASTO
stand-by counsel. Gregory tried once more to persuade the
court to relieve his office of the case, stating, “[i]t’s obvious
that the reason Mr. Plumlee wants to represent himself is he
doesn’t trust the Public Defender’s Office. To order us to be
stand-by counsel, in effect, gives him no stand-by counsel.”
Judge Lane was not persuaded and refused to appoint differ-
ent stand-by counsel for Plumlee.
At a subsequent hearing, Plumlee was again advised by
Judge Lane of his right to be represented by the Public
Defender’s Office, and Judge Lane reiterated his refusal to
appoint outside counsel. After expressing his view that he had
no choice, Plumlee affirmed his decision to proceed pro se.
Plumlee then petitioned the Nevada Supreme Court for a writ
of mandamus to compel the appointment of counsel outside
the Public Defender’s Office. The petition was denied.
Plumlee proceeded to trial pro se and was convicted of all
charges. He was sentenced to two consecutive life terms with-
out parole for first-degree murder and for the use of a deadly
weapon, as well as to two concurrent nine year sentences for
robbery and for the use of a deadly weapon.
On direct appeal, Plumlee argued, inter alia, that the dis-
trict court abused its discretion when it refused to provide him
with counsel outside the Public Defender’s Office, causing
him to involuntarily serve as his own attorney in violation of
his Sixth Amendment right to counsel. The Nevada Supreme
Court dismissed the appeal.
Absent a showing of adequate cause, a defendant
is not entitled to reject court-appointed counsel and
substitute other counsel at public expense. Thomas
v. State, 94 Nev. 605, 607, 584 P.2d 674, 676
(1978). It is within the sound discretion of the trial
court to decide whether friction between counsel and
client justifies appointment of new counsel. Id. A
defendant’s refusal to cooperate with appointed
PLUMLEE v. MASTO 655
counsel is no basis for a claim of inadequate repre-
sentation. Id. at 608, 584 P.2d at 676. “Requiring a
defendant to choose between waiving counsel and
continuing with present counsel is not constitution-
ally offensive unless defendant’s objections to exist-
ing counsel are such that he has a right to new
counsel.” State v. Staten, 802 P.2d 1384, 1387
(Wash. Ct. App. 1991). Appellant never showed ade-
quate cause justifying appointment of new counsel,
and the court below did not abuse its discretion in
refusing to do so.
After his conviction was affirmed on direct appeal, Plumlee
filed a petition for a writ of habeas corpus in the state trial
court. Judge Lane held an evidentiary hearing in connection
with Plumlee’s petition. At the conclusion of the hearing,
Judge Lane denied the petition and made several critical fac-
tual findings:
• Chief Deputy Public Defender O’Neill had nei-
ther received, nor leaked, any confidential infor-
mation regarding Plumlee’s case.
• Allison was unaware of and did not approve the
release of Plumlee’s car to the lienholder by the
police.
• “Owing to Plumlee’s story, prior to January of
1992, Allison reasonably believed the car was not
a crime scene, a part of the crime scene or played
any role whatsoever in the commission of these
crimes.”
• “Plumlee’s habeas testimony [where] he stressed
the importance of his car as the repository of
exculpatory evidence is not credible.”
• “Plumlee presented no credible evidence at the
habeas proceeding having a legitimate tendency
656 PLUMLEE v. MASTO
or reasonable basis for believing that exculpatory
evidence . . . ever existed, even if Allison, or Mr.
Gregory, bothered to go and look for these
items.”
• Plumlee’s habeas testimony was not credible on
the claim that Allison had not notified him about
“the job change,” referring to Allison’s move to
the District Attorney’s Office.
• Allison was credible in his habeas testimony that
he had applied for the position at the District
Attorney’s Office prior to being assigned Plum-
lee’s case and thereafter “did not seek out an
interview for the position or even ask about the
position while he represented Plumlee.”
• If Gregory discussed a possible plea deal in his
initial encounter with Plumlee, he did so in com-
pliance with ethical rules.
• “No material exculpatory evidence was lost or
destroyed while Plumlee awaited trial.”
• “In June and July of 1992, Plumlee knowingly
and voluntarily waived his constitutional right to
counsel, and represented himself until he was
convicted; meanwhile, Mr. Gregory was ordered
to act as ‘standby’ counsel.”
Plumlee appealed the state district court’s denial of his state
habeas petition. The Nevada Supreme Court dismissed the
appeal, holding:
Appellant contends that he did not voluntari[ly]
waive his right to counsel, because the district
court’s improper refusal to appoint substitute counsel
made appellant’s waiver involuntary. Since there
PLUMLEE v. MASTO 657
was no error in the district court’s refusal to appoint
new counsel, as we concluded in the direct appeal,
we disagree with appellant’s contention that he was
forced to represent himself. We conclude that appel-
lant’s waiver of his right to counsel was voluntary.
Having exhausted his state post-conviction remedies, Plum-
lee timely filed a federal habeas petition. He presented seven
claims in the federal district court. Relevant here is his claim
that his Sixth Amendment right to counsel was violated.
Plumlee claimed that waiver of the right to counsel was invol-
untary because he was limited to either proceeding pro se or
accepting the services of the Public Defender’s Office, with
whom he had an “irreconcilable conflict.” The district court
noted four ways in which Plumlee believed his representation
by the Public Defender’s Office created such a conflict: (1)
O’Neill’s alleged communications of confidential information
to Dewey; (2) Allison’s alleged deception regarding his intent
to take a job at the District Attorney’s Office and his subse-
quent transfer to that position; (3) Gregory’s conversations
with the prosecutor about the lost bail order against the wishes
of Plumlee; and (4) “ ‘miscellaneous other repeated instances
of misconduct’ on the part of the public defender’s office.”
The district court rejected Plumlee’s claim that he was
compelled to represent himself in violation of his Sixth
Amendment right to counsel after the trial court denied him
alternate representation outside the Public Defender’s Office.
In arriving at this conclusion, the court found that Plumlee
could not “show that an actual conflict of interest adversely
affected the attorney’s performance,” thus failing to meet the
standard established in Cuyler v. Sullivan, 446 U.S. 335, 348-
50 (1980).
We now consider Plumlee’s appeal of the denial of his peti-
tion for a writ of habeas corpus in the District of Nevada. We
have jurisdiction pursuant to 28 U.S.C. § 2253(a). We review
de novo the denial of habeas relief by a district court. Polk v.
658 PLUMLEE v. MASTO
Sandoval, 503 F.3d 903, 909 (9th Cir. 2007). Having done so,
we affirm the district court’s denial of Plumlee’s petition for
a writ of habeas corpus.
II. Discussion
A. Habeas Review Under AEDPA and Carey v.
Musladin
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) provides that
[a]n application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(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
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
[1] As a preliminary matter, we conclude that the state
court decision was not premised on “an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). The state
trial court held an evidentiary hearing and its factual findings
are supported by the record. Cf. Miller-El v. Dretke, 545 U.S.
231, 241 n.2 (2005) (“state court factfinding must be assessed
‘in light of the evidence presented in the State court proceed-
PLUMLEE v. MASTO 659
ing’ ” (quoting 28 U.S.C. § 2254(d)(2))). These findings are
entitled to a presumption of correctness. Plumlee has not
rebutted them “by clear and convincing evidence.” See 28
U.S.C. § 2254(e)(1).
We now turn to whether the Nevada Supreme Court’s
determination was contrary to or an unreasonable application
of clearly established federal law. 28 U.S.C. § 2254(d)(1). We
review “the ‘last reasoned decision’ by a state court.” Gautt
v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007) (quoting Robin-
son v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)). As it
pertains to AEDPA, “clearly established federal law” is “the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its deci-
sion.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see
also Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004);
Wiggins v. Smith, 539 U.S. 510, 520 (2003).
[2] In Carey v. Musladin, 127 S. Ct. 649, 653-654 (2006),
the Supreme Court recently emphasized that habeas relief is
available only if the state court’s decision is contrary to or
involved an unreasonable application of the Supreme Court’s
own holdings. In that case, the Court reiterated its previously
stated instruction that,
“clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of
this Court’s decisions as of the time of the relevant
state-court decision.”
Id. at 653 (quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)). What matters are the holdings of the Supreme Court,
not the holdings of lower federal courts.
B. Supreme Court Jurisprudence
[3] In Cuyler v. Sullivan, the Supreme Court stated that
“until a defendant shows that his counsel actively represented
660 PLUMLEE v. MASTO
conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance.” 446 U.S. at
350. In other words, in order to succeed on a claim based on
an alleged conflict, there must be a showing of an actual con-
flict, namely that a defendant’s attorney is representing con-
flicting interests. Conflicting interests have been recognized
by the Supreme Court in a variety of settings. See, e.g., Mick-
ens v. Taylor, 535 U.S. 162, 164-65 (2002) (recognizing a
“potential conflict of interest” when appointed counsel previ-
ously represented the murder victim in a separate case); Wood
v. Georgia, 450 U.S. 261, 270-72 (1981) (suggesting strong
“possibility of a conflict of interest” (emphasis in original)
when defendants were represented by a lawyer hired by their
employer); Cuyler, 446 U.S. at 348 (“Since a possible conflict
inheres in almost every instance of multiple representation, a
defendant who objects to multiple representation must have
the opportunity to show that potential conflicts impermissibly
imperil his right to a fair trial.”); Holloway v. Arkansas, 435
U.S. 475, 490 (1978) (noting “in a case of joint representation
of conflicting interests the evil — it bears repeating — is in
what the advocate finds himself compelled to refrain from
doing, not only at trial but also as to possible pretrial plea
negotiations and in the sentencing process” (emphasis in orig-
inal)).
[4] Obviously, the word “conflict” is also used in common
parlance to describe a personality conflict, an artistic conflict,
a family conflict, and many other sorts of antagonism — even
war. In this context, however, as the Supreme Court cases
make clear, we are talking about legal conflicts of interest —
an incompatibility between the interests of two of a lawyer’s
clients, or between the lawyer’s own private interest and those
of the client. See BLACK’S LAW DICTIONARY 319 (8th ed.
2004). Here, the state court found that Plumlee’s lawyers had
no actual conflict of interest, and Plumlee does not argue oth-
erwise. Rather, he argues that his relationship with his public
defender was dysfunctional due to his subjective distrust of
PLUMLEE v. MASTO 661
the office and that this created a “conflict,” entitling him to
new counsel as a matter of Sixth Amendment right.
In Morris v. Slappy, the Court held that there is no Sixth
Amendment right to “a ‘meaningful relationship’ between an
accused and his counsel,” reasoning that, “[n]o court could
possibly guarantee that a defendant will develop the kind of
rapport with his attorney — privately retained or provided by
the public — that the Court of Appeals thought part of the
Sixth Amendment guarantee of counsel.” 461 U.S. at 13-14.
[5] Plumlee has cited no Supreme Court case — and we are
not aware of any — that stands for the proposition that the
Sixth Amendment is violated when a defendant is represented
by a lawyer free of actual conflicts of interest, but with whom
the defendant refuses to cooperate because of dislike or dis-
trust. Indeed, Morris v. Slappy is to the contrary.
[6] The Supreme Court has held that a defendant is entitled
to counsel who “function[s] in the active role of an advocate.”
Entsminger v. Iowa, 386 U.S. 748, 751 (1967); see also
United States v. Cronic, 466 U.S. 648, 656 (1984); Anders v.
California, 386 U.S. 738, 743 (1967). Plumlee has not dem-
onstrated that his attorneys failed to satisfy this obligation or
acted unreasonably in the Strickland sense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Rather, Plumlee
argues that many events that took place throughout his rela-
tionship with the Public Defender’s Office “caused him to
subjectively believe that said office and his assigned counsel
were not acting ethically and in his best interest.” (Emphasis
added.) As bases for his “subjective[ ] belie[f] that the
Washoe County Public Defender’s Office was not acting ethi-
cally and in his best interest,” Plumlee points to (1) O’Neill’s
relationship and alleged discussions with Dewey regarding
Plumlee’s case; (2) Allison’s interactions with the District
Attorney’s Office and his alleged prevaricating to Plumlee
about the situation; and (3) Gregory’s handling of the plea
proposal and bail order.
662 PLUMLEE v. MASTO
[7] Under our precedents, see, e.g., Schell v. Witek, 218
F.3d 1017, 1025-26 (9th Cir. 2000), Judge Lane had a duty to
inquire into the problems with counsel when they were first
raised, and he did so. This case is thus unlike Schell, 218 F.3d
at 1025-26, where the trial court completely ignored a timely
motion to remove an appointed lawyer. In contrast, when the
matter first came to Judge Lane’s attention, he made inquiry
and then found no basis for Plumlee’s unwillingness to coop-
erate with Gregory. When he reviewed the matter again years
later in connection with the state habeas petition, Judge Lane
held a full-blown evidentiary hearing and made extensive
findings to the same effect. Plumlee had no valid basis for
insisting that the Public Defender’s Office, or any of its
employees, was leaking information to the D.A.’s Office. This
case is thus in the Morris v. Slappy category.
III. Conclusion
[8] The Supreme Court has held that a defendant is consti-
tutionally entitled to a lawyer who is free of conflicts of inter-
est and who can act as a loyal advocate, but he has no
constitutional right to a “meaningful relationship” with
appointed counsel. Given the facts as they reasonably were
found to be, the Nevada Supreme Court did not act contrary
to, or unreasonably apply, federal law as determined by the
United States Supreme Court in ruling that (1) Plumlee was
not entitled to the appointment of a different lawyer, and that
(2) his waiver of counsel was not involuntary. Consequently,
the district court’s denial of Plumlee’s petition for a writ of
habeas corpus is AFFIRMED.
PREGERSON, Circuit Judge, dissenting:
It is a universal truth that an indigent criminal defendant
“requires the guiding hand of counsel at every step in the pro-
ceedings against him.” Gideon v. Wainwright, 372 U.S. 335,
PLUMLEE v. MASTO 663
345 (1963) (citation and internal quotation marks omitted).
Lary James Plumlee, an indigent criminal defendant, was
indicted for armed robbery and murder, and desperately “re-
quire[d] the guiding hand of counsel.” But because Plumlee’s
relationship with his Washoe County public defender had
been seriously compromised and because the Nevada trial
judge refused to appoint new counsel, his only choice was to
represent himself. Proceeding pro se, Plumlee was convicted
and sentenced to two consecutive life terms in prison. The
refusal of the Nevada courts to grant Plumlee’s habeas peti-
tion in these circumstances violates clearly established Sixth
Amendment Supreme Court jurisprudence. Thus, I dissent.
I wholeheartedly agree with the opinion rendered by the
three-judge panel in this case, an opinion which was vacated
when this case was taken en banc. See Plumlee v. Del Papa,
465 F.3d 910 (9th Cir. 2006) (vacated). The Supreme Court
has held that an indigent criminal defendant is entitled to an
attorney who “function[s] in the active role of an advocate.”
Entsminger v. Iowa, 386 U.S. 748, 751 (1967); see also
Anders v. California, 386 U.S. 738, 743 (1967). The Court
has also explained that the Sixth Amendment “requires not
merely the provision of counsel to the [indigent] accused, but
‘Assistance,’ which is to be ‘for his defence.’ ” United States
v. Cronic, 466 U.S. 648, 654 (1984).
Nevada did not provide Plumlee with an attorney who
could function in the active role of an advocate. Here, as the
trial judge found, Plumlee had good reason to believe that his
representation by the Public Defender’s Office was tainted by
a conflict of interest. His relationship with his public defend-
ers had deteriorated to the point that Plumlee believed that
being represented by the Public Defender’s Office was worse
than having no representation at all. This unhappy situation
was recognized by his public defender, who explained that
Plumlee was “unable to establish an attorney/client relation-
ship with me or any of my colleagues in the Public Defend-
er’s office” and that having the Public Defender’s Office as
664 PLUMLEE v. MASTO
stand-by counsel “in effect, gives him no stand-by counsel.”
Judge Lane, the trial judge, made clear that while he did not
believe the public defender’s office had betrayed Plumlee, he
nonetheless believed that Plumlee’s distrust was reasonable.
During the evidentiary hearing on state habeas, Judge Lane
noted that “it is clear Mr. Plumlee didn’t trust, didn’t like or
trust the Public Defender’s Office for reason. And based upon
certainly where he was sitting, I can’t disagree he had a right
to feel that” and that “I can understand why Mr. Plumlee felt
like he did. I doggone sure can.”
The majority’s reliance on Morris v. Slappy, 461 U.S. 1
(1983), is misplaced. In Slappy, the defendant challenged the
trial court’s refusal to grant him a continuance so that his pre-
ferred lawyer could represent him. The Supreme Court
rejected the argument that a defendant had a right to a “mean-
ingful relationship” with his attorney. Here, Plumlee did not
argue that he was entitled to be represented by any one partic-
ular lawyer. Instead, Plumlee simply wanted any lawyer who
could function as an effective advocate. The Supreme Court
confirmed this distinction in Wheat v. United States, 486 U.S.
153, 159 (2006), explaining that “the essential aim of the
[Sixth] Amendment is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a defendant
will inexorably be represented by the lawyer whom he pre-
fers.” (citations omitted). Where a criminal defendant has a
reasonable, good-faith justification for being unable to work
with an appointed lawyer, the Sixth Amendment requires that
the court appoint a lawyer who can develop a functioning
attorney-client relationship with the indigent defendant.
The majority concludes that Judge Lane’s findings that the
Public Defender’s Office did not betray Plumlee, despite
appearances to the contrary, resolve the issue. Judge Lane’s
findings do not, however, change the fact that Plumlee’s rela-
tionship with the Public Defender’s Office had deteriorated to
the point that he had no attorney functioning in the role of an
PLUMLEE v. MASTO 665
advocate, in violation of the Sixth Amendment. Accordingly,
I dissent.