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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. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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