Elkin Jesus GOMEZ, Petitioner-Appellee, v. Rosie B. GARCIA, Warden, Respondent-Appellant

Rosie B. Garcia, Warden, appeals the qualified grant of habeas corpus by the district court to Elkin Jesus Gomez, a prisoner of the state of California. The district court adopted the report of a magistrate judge that Gomez had been denied the right of counsel on appeal because his counsel represented a codefendant whose interest was in conflict with that of Gomez. The district court accordingly discharged Gomez “from all adverse consequences” of his conviction of kidnapping for the purpose of extortion unless he was permitted to take a second direct appeal of his conviction. Holding that no conflict existed for Goméz’s counsel, we reverse the judgment of the district court.

FACTS

Gomez and Luis Cardona were tried for the crime of kidnapping for extortion in violation of California Penal Code § 209(a). Both were found guilty. Evidence at their trial showed that on December 6, 1987 Claudia Espinoza, a cocaine dealer, hired Gomez and Cardona to make “collections” on behalf of Claudia and her husband Tito Espinoza. The first person targeted for collection was Billy Mikus, a drug dealer who had been dealing with the Espinozas during 1986 and who in 1987 was cooperating with…