Lary James Plumlee v. Frankie Sue Del Papa John Ignacio

426 F.3d 1095 Lary James PLUMLEE, Petitioner-Appellant, v. Frankie SUE DEL PAPA; John Ignacio, Respondents-Appellees. No. 04-15101. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 2, 2004. Filed October 18, 2005. COPYRIGHT MATERIAL OMITTED Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant. Victor-Hugo Schulze II, Deputy Attorney General, Las Vegas, NV, for the respondent-appellee. With him on the briefs was Joseph W. Long. Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-00-00244-DWH/VPC. Before BETTY B. FLETCHER, THOMAS, and BEA, Circuit Judges. Opinion by Judge B. Fletcher; Dissent by Judge Bea B. FLETCHER, Circuit Judge. 1 Defendant-appellant Lary James Plumlee ("Plumlee"), convicted of murder and armed robbery in Nevada state court in 1992, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . Plumlee claims that his Sixth Amendment right to counsel was violated by the trial judge's denial of Plumlee's pre-trial motion to substitute counsel on the basis of an irreconcilable conflict…

Opinion by Judge B. Fletcher; Dissent by Judge Bea

Defendant-appellant Lary James Plum-lee (“Plumlee”), convicted of murder and armed robbery in Nevada state court in 1992, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . Plumlee claims that his Sixth Amendment right to counsel was violated by the trial judge’s denial of Plumlee’s pretrial motion to substitute counsel on the basis of an irreconcilable conflict that precluded Plumlee’s counsel from acting in the role of an advocate. At the time he moved the trial court to appoint alternate counsel, Plumlee reasonably and in good faith believed that members of the Washoe County Public Defender’s Office were leaking information about his case to another suspect in the case and to the District Attorney. The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all. The judge declined to appoint new counsel. Given the circumstances of this unusual case, we conclude that the judge abused his discretion and that the Nevada Supreme Court’s *1098 contrary conclusion involved an…

dissenting.

Bypassing the clear restraints enacted by Congress in AEDPA, and fashioning anew rule raising a defendant’s suspicions and personal pique to constitutional dimensions, the majority orders the release of Plumlee thirteen years after he was imprisoned — for two terms of life without the possibility of parole — -for robbing and murdering Wilbur Richard Beard. Were that not enough, the majority’s “irreconcilable conflict” rule augurs innumerable problems for public defenders and trial courts; if allowed to stand, it will generate volumes of litigation for both direct and collateral appeals for years to come.

I fundamentally disagree with the majority’s presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court’s decision rejecting petitioner Plumlee’s “irreconcilable conflict” claim was “an unreasonable application of clearly established Federal law” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2254 (d)(1).

First, the facts. The majority skews their rendition of the facts by largely relying on only one version of the story — the story presented by Plumlee. The majority fails to…