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7th Circuit: No attorney conflict of interest

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The 7th Circuit Court of Appeals affirmed the denial of a drug offender's petition for habeas corpus, ruling his attorney didn't render ineffective assistance of counsel when he also represented other co-defendants on the same drug charges.
 
In Argelio Gonzales v. Brett Mize, No. 08-1875, Argelio Gonzales appealed the U.S. District Court, Northern District of Indiana's denial of his petition for habeas corpus, in which he claimed attorney Jay Hirschauer was ineffective because of conflicts of interest. Hirschauer represented Argelio at trial and on appeal, and also represented on the same drug charges co-defendants Laura Lapcheska, Argelio's girlfriend; Jorge Perez; Arnaldo Garcia; and Larry Campbell.
 
Gonzales argued before the Indiana Court of Appeals that a conflict of interest arose when Hirschauer negotiated a plea agreement for Lapcheska that called for her to testify against Gonzales; however, the plea agreement never called for that in writing and she never gave a clean-up statement as mentioned in the agreement. The appellate court affirmed the Circuit Court's denial of his post-conviction petition. The Indiana Supreme Court denied transfer.

On appeal to the 7th Circuit, Gonzales claimed the District Court erred when it rejected his claim of a Sixth Amendment violation because he was denied effective assistance of counsel when Hirschauer represented other co-defendants. The 7th Circuit granted transfer only on the question of whether he received ineffective assistance of counsel.

The federal appellate court determined Gonzales procedurally defaulted on his claims of conflict of interest relating to Hirschauer's representation of him and Campbell because he failed to make this argument in his petition to transfer to the Supreme Court.

In regards to the conflict of interest from Hirschauer's representation of Lapcheska, Gonzales' arguments also failed. Although he argued there was a conflict of interest because Lapcheska testified that she rejected her first plea agreement because she didn't want to testify against Gonzales, it was never mentioned in the written agreement that Lapcheska would have to testify against him. Gonzales failed to present clear and convincing evidence the first plea agreement Lapcheska rejected would have required her to testify.

Gonzales also argued that once Lapcheska was required to give a clean-up statement, Hirschauer was conflicted because she would have had to divulge information that could implicate Gonzales because her criminal activity could involve Gonzales. However, in her clean-up statement, Lapcheska would only have to divulge her own criminal activity prior to the date she was charged for the same drug crimes as Gonzales and there's no indication Hirschauer knew she could provide information about joint criminal activity involving her and Gonzales, the court ruled.

Gonzales failed to show that the alleged actual conflict of interest adversely affected the adequacy of his attorney's representation of him.

The Gonzales opinion was written by Judge Frederick J. Kapala of the U.S. District Court for the Northern District of Illinois, who was sitting by designation on the 7th Circuit Court of Appeals. Look for a story about sitting in designation in the May 13-26, 2009, issue of Indiana Lawyer.

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  1. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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