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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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