Robert A. McClure v. Frank Thompson

323 F.3d 1233 Robert A. McCLURE, Petitioner-Appellant, v. Frank THOMPSON, Respondent-Appellee. No. 01-35593. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 2002. Filed April 2, 2003. COPYRIGHT MATERIAL OMITTED Steven T. Wax, Federal Public Defender's Office, Portland, OR, for the petitioner-appellant. Daniel J. Casey, Justice Department, State of Oregon, Salem, OR, for the respondent-appellee. 1 Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CV-97-06182-ALA. 2 Before FERGUSON, W. FLETCHER, Circuit Judges, and KING, * District Judge. 3 Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge FERGUSON. OPINION WILLIAM W. FLETCHER, Circuit Judge: 4 Oregon state prisoner Robert A. McClure appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury trial conviction for three aggravated murders. McClure's original defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement officials directing them to the locations of what turned out to be the bodies of two children whom McClure was ultimately convicted of…

dissenting:

I respectfully dissent. The majority erred when it held that the disclosure of the location of two of McClure’s victims’ bodies by his defense attorney did not constitute deficient performance under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). McClure’s attorney, Christopher Mecca, breached one of the most sacred obligations of the attorney-client relationship, the duty of confidentiality, and in turn violated McClure’s Sixth Amendment right to counsel. Based on an utterly unreasonable interpretation of the events surrounding the disclosure at issue in this case, the majority finds that Mecca met an exception to the duty of confidentiality. As a result, the majority holds that it was reasonable for Mecca to believe that two missing children were alive but dying, when he disclosed their location to authorities, without McClure’s consent, without asking McClure directly whether he had killed them, and without conducting any investigation to find out.

While purportedly applying the Strickland standard, “reasonableness under prevailing professional norms,” id. at 688 , 104 S.Ct. 2052 , the majority conducts a wholly subjective analysis…

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge FERGUSON.

OPINION

Oregon state prisoner Robert A. McClure appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury trial conviction for three aggravated murders. McClure’s original defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement officials directing them to the locations of what turned out to be the bodies of two children whom McClure was ultimately convicted of killing. The district court rejected McClure’s arguments that the disclosure constituted ineffective assistance of counsel, holding there was no breach of the duty of confidentiality and no actual conflict of interest. We affirm.

I. Background

A. Offense, Arrest and Conviction

On Tuesday, April 24, 1984, the body of Carol Jones was found in her home in Grants Pass, Oregon. She had been struck numerous times on the head, arms and hands with a blunt object. A gun cabinet in the home had been forced open and a .44 caliber revolver was missing. Two of Jones’ children — Michael, age 14, and Tanya, age 10 — were also missing. The fingerprints of Robert McClure, a friend of Jones,…