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Attorney may have had conflict

By: dmc-admin//August 23, 2010//

Attorney may have had conflict

By: dmc-admin//August 23, 2010//

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A federal prisoner whose lawyer violated federal laws during her representation of him may get an evidentiary hearing whether she was under, or feared, investigation by the same office that was prosecuting her client.

The Seventh Circuit held on Aug. 13 that, if she was under investigation, her client’s right to conflict-free counsel was violated.

According to a habeas corpus petition filed by Fabian Lafuente, in 1996, while working as a federal defender, attorney Andrea Gambino represented Jorge Ramos-Gonzalez on narcotics and illegal reentry charges.

After Ramos-Gonzalez was released from prison and deported, he reentered the country illegally again, and commenced a “personal relationship” with Gambino in 2000.

The complaint asserts that Gambino violated federal law by helping him evade law enforcement.

As a result of the conduct, Gambino was terminated by the Federal Defender office in 2003, and was suspended from practicing law for a short period.

At the same time, Gambino also represented Lafuente in federal court on drug and weapons offenses. He was convicted in 2003, and is serving a 188-month sentence.

Lafuente petitioned for habeas corpus, alleging that he was denied his right to conflict-free counsel because, at the time of his trial, Gambino was subject to prosecution by the same office that was prosecuting him.

The district court denied the motion without a hearing, but the Seventh Circuit vacated the judgment, in a per curiam opinion.

The court held that, if Lafuente’s allegations are true, Gambino had a conflict of interest, and he is entitled to relief.

The government argued that Lafuente’s motion was inadequate for failure to provide details concerning the investigation of Gambino.

But the court disagreed, noting it is not within Lafuente’s personal knowledge whether Gambino was under investigation or whether she feared investigation. In light of Gambino’s termination and suspension from practicing law, the court found his allegations were plausible and sufficient to warrant further inquiry.

Although the court vacated the district court’s judgment and remanded the case, it added that a full evidentiary hearing was not necessarily required.

The relevant disputed facts are whether Gambino was actually investigated by the U.S. Attorney, or whether she feared such an investigation.

The court wrote, “The government could obviate the need for an evidentiary hearing by simply confirming, through an affidavit, that Gambino was never under investigation; an affidavit from Gambino would confirm whether she feared prosecution. These discovery methods can help the district court determine whether a more extensive hearing is necessary.”

Case analysis

While the vacation of the judgment in this case is very well warranted, the court’s discussion of the proceedings on remand is troubling.

The court states that the government can obviate the need for a hearing simply by filing affidavits that Gambino was never under investigation, and that Gambino never feared prosecution.

However, that would be a denial of a fair hearing.

On the contrary, a hearing should only be unnecessary if the government admitted Gambino was under investigation, or that she did fear investigation. Only then should the district court be able to dispense of the matter without a hearing, and grant the relief that Lafuente seeks, because he would be entitled to it.

But the flat denials the court suggests, even from officers of the court, should not suffice, especially when one of the affiants is a disgraced officer of the court.

Rule 7(b) of the Rules Governing Section 2255 Cases states that a court may direct parties to submit materials relating to the motion: “The materials that may be required include letters predating the filing of the motion, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits also may be submitted and considered as part of the record.”

Lafuente has a right to any of the documents referenced in the first sentence that may exist. All would be more illuminating than affidavits.

The fairest way to proceed on remand would be to treat the government’s opposition to Lafuente’s petition the same way the court would treat a summary judgment motion. Rule 12 of the Rules Governing Section 2255 cases states that “The Federal Rules of Civil Procedure …, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”

On a motion for summary judgment, all facts and reasonable inferences must be construed in favor of the nonmoving party, here Lafuente. Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005).

Based on what Lafuentes has submitted in support of his motion, Gambino violated federal laws, and the relevant federal authorities knew that she did. Unless she believed herself above the law, the most reasonable inference that can be drawn from these facts is that Gambino feared prosecution or at least investigation.

Accordingly, even if she were to sign an affidavit denying fear of prosecution, Lafuente should have the opportunity at an evidentiary hearing to cross-examine her on such a highly questionable averment, and the district court should make credibility findings.

To decide the petition without a hearing would effectively make credibility determinations based on affidavit alone. That is not done in summary judgment motions, and it shouldn’t be done in a habeas corpus petition, when a prisoner has made a highly plausible showing that his attorney had a conflict of interest.

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