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Pometta v. Poole

filed: May 5, 1993.

VICKIE G. POMETTA, PETITIONER-APPELLANT,
v.
SUSAN E. POOLE, WARDEN, WARDEN, CA INSTITUTION FOR WOMEN, RESPONDENT-APPELLEE.



On Appeal From the United States District Court for the Northern District of California. D.C. No.CV-91-00454-DLJ. D. Lowell Jensen, District Judge, Presiding

Before: Pregerson, and Beezer, Circuit Judges, and Takasugi, District Judge.*fn**

MEMORANDUM

Vickie G. Pometta appeals the district court's denial of her petition for a writ of habeas corpus. Pometta claims she received ineffective assistance of counsel at her burglary trial due to a conflict of interest with her attorney. Because the district court applied the wrong standard for evaluating a timely raised motion for substitution of counsel based on a potential conflict of interest, we reverse.

I

At the time Vickie Pometta was charged with residential burglary, charges were pending against her for access-card fraud. Joseph Flax was the court-appointed attorney for Pometta in both. Pometta pleaded guilty in the access-card case and was sentenced in state court to three years. Pometta appealed her access-card fraud conviction, claiming that Flax had provided ineffective assistance of counsel. Specifically, Pometta accused Flax of having deceived her into believing that her guilty plea would lead to a two year sentence.

Prior to filing the appeal in the access-card fraud case, Pometta requested that the state trial Judge replace Flax as her counsel in the then pending burglary case. Before the request could be considered, the burglary case was reassigned in state court to Judge Walker. By the time Judge Walker conducted a hearing on Pometta's request for new counsel, Pometta had filed her appeal in the access-card case.

At the hearing before Judge Walker, Pometta claimed she was not comfortable with Flax and that Flax was "working against [her]." She did not claim Flax had deceived her regarding the plea bargain, nor did she inform Judge Walker that she had filed an appeal based on ineffective assistance of counsel. When questioned by Judge Walker, Flax stated that he was unaware of any reason why he should be relieved as counsel. Judge Walker denied Pometta's request.

Two days before trial, Flax himself requested he be relieved from representing Pometta on the ground of a conflict of interest. Flax informed the court that he had just learned of Pometta's ineffective assistance of counsel claim in the access-card appeal. Flax stated that Pometta had refused to show him the documents she had filed. Flax also indicated that he believed Pometta had been unable to articulate her grounds for requesting substitution of counsel at the prior hearing. In a supporting declaration, Flax wrote, "it became obvious to me that Vickie was withdrawing from me and was not communicating openly with me. It became apparent to me that she had lost confidence and trust in me at a critical stage in the burglary prosecution as I was preparing for trial." Flax also told the court that Pometta's allegations in the access-card appeal might result in Flax's appearance as an adverse witness if Pometta later filed a petition for habeas corpus on the ground of ineffective representation of trial counsel.

After examining the record in the access-card case, Judge Walker ruled the evidence did not support Pometta's claim of a conflict of interest. According to Judge Walker, because a habeas petition in the access-card case would lack factual support, Flax was not at risk of having to take a position adverse to Pometta.

The next day, Pometta filed another pro se pleading, this time claiming that Flax had admitted misrepresenting the terms of her plea bargain in the access-card case. When questioned by Judge Walker at a hearing held the same day, Pometta cited attorney-client privilege and refused to divulge the content of her conversation with Flax. Pometta also claimed that Flax had admitted incompetence in a second confidential conversation.

Flax informed the court that the second confidential conversation might involve Pometta's Fifth Amendment privilege. Flax also told the court that he did not remember exactly what he said to Pometta regarding the plea bargain in the access-card case, but that Pometta's claim probably reflected a misunderstanding.

After noting that the trial Judge had found Pometta's appeal in the access-card case to be "frivolous," Judge Walker found 1) Flax had not misrepresented the plea agreement in the access-card case; 2) the court did not believe Pometta's claim to the contrary; and 3) there was no reason why Flax could not continue as Pometta's attorney in the burglary trial.

Following a jury trial, Pometta was convicted. On direct appeal, the state appellate court found that Flax's representation was "vigorous," "thorough," and "effective," and that Flax had "positive rapport" with Pometta during cross-examination.

Pometta's then petitioned the district court for a writ of habeas corpus. The district court denied the writ on the grounds that 1) Pometta failed to prove the existence of an actual conflict of interest; and 2) there was no showing that Pometta's ...


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