Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 06 CV 514. Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Kapala, District Judge.
Before BAUER and FLAUM, Circuit Judges, and KAPALA, District Judge.*fn1
Argelio Gonzales, an Indiana state prisoner serving a 30-year sentence for various drug-related offenses, challenges the district court's denial of his habeas corpus petition, 28 U.S.C. § 2254. On appeal, Gonzales argues that he received ineffective assistance of counsel as a result of his trial counsel's conflicts of interest. We affirm.
Attorney Jay Hirschauer represented Gonzales at a jury trial that began on April 27, 1998, and ended April 30, 1998. The Indiana Court of Appeals summarized the facts presented at trial as follows:
[O]n December 29, 1997, Indiana State Police and Logansport Police Department officers conducted an undercover sting operation in which Gonzales sold a police informant a total of 1.16 grams of crack cocaine during two transactions conducted inside Gonzales' apartment. Police recorded the transactions on both audio and video tape. A subsequent search of the apartment, which Gonzales shared with two other individuals, produced 12.35 grams of crack cocaine, 2.69 grams of powder cocaine, and 31.90 grams of marijuana. Police also discovered an additional 9.39 grams of crack cocaine on the ground below a second story bedroom window. The apartment was located 382 feet from Crayon Campus, a licensed child care home.
The jury found Gonzales guilty of possession of cocaine and dealing cocaine within 1,000 feet of school property, possession of marijuana, and maintaining a common nuisance. The court sentenced him to concurrent prison terms of 30 years on each of the cocaine charges, and 18 months on each of the other two charges. On direct appeal, the Indiana Court of Appeals upheld Gonzales' convictions and sentences. Gonzales did not file a petition for transfer to the Indiana Supreme Court.
In an amended post-conviction petition filed on November 12, 2004, in Cass County circuit court, Gonzales raised four arguments: (1) his trial counsel's simultaneous representation of him, co-defendants Jorge Perez and Laura Lapcheska, and exculpatory witnesses Arnaldo Garcia and Larry Campbell violated his right to conflict-free counsel and impaired his counsel's representation of him; (2) his counsel failed to present exculpatory evidence at trial; (3) he was deprived of his right to a unanimous jury verdict; and (4) his appellate counsel, who also was his trial counsel, was ineffective in failing to raise the non-unanimous verdict issue on direct appeal.
At the evidentiary hearing on Gonzales' amended post-conviction petition, Hirschauer agreed that he represented Lapcheska at the same time as Gonzales. Hirschauer explained that an initial written plea agreement offered to Lapcheska called for her to plead guilty to possession of cocaine in exchange for a fifteen-year prison sentence. It did not mention her testifying against Gonzales. According to Hirschauer, the prosecutor never made an offer to Lapcheska which required her to testify against Gonzales. If such an offer was made, Hirschauer said that he would not have communicated it to her but, rather, he would have gotten out of the case due to a conflict of interest. Lapcheska ultimately refused the first plea agreement.
After a month or two, Lapcheska accepted a second written plea agreement for 20 years' imprisonment. Like the first plea agreement, it did not require her to testify. Hirschauer said that the prosecution had no need for Lapcheska to testify against Gonzales because the police had both Gonzales and Lapcheska on videotape. After reviewing copies of Lapcheska's first and second plea agreements, Hirschauer testified that neither required her to testify against anyone. Hirschauer said that the second plea agreement provided that she give a clean-up statement, but he did not think that she ever did.*fn2
Laura Lapcheska testified that she and Gonzales had dated, engaged in a drug deal operation, and were arrested at the same time. The first plea agreement offered to her included a 15-year prison sentence and required her to provide a clean-up statement. According to Lapcheska, Hirschauer explained to her and to her parents that a clean-up statement entailed testimony about her involvement with drug dealing and that she would be exempt from any prosecution other than murder. When asked whether Hirschauer's explanation of the clean-up statement included a requirement to testify against Gonzales, Lapcheska responded, "Well, to tell what happened, he explained it as I would have to mention, to name, and to me, to mention anybody's name would be giving testimony against them . . . So yes." Lapcheska said that once Hirschauer explained the clean-up statement, she decided not to accept the first plea agreement. Lapcheska testified further that she later accepted a 20-year plea agreement that did not require a clean-up statement.
On cross-examination, after being shown the first written plea agreement, Lapcheska acknowledged that it contained no reference to a clean-up statement. She added that she did not recall reading the agreement. She did remember that Hirschauer discussed the plea agreement with her and her parents. Lapcheska agreed that it was possible that she was confused about when the conversation between her, Hirschauer, and her parents took place, but said that she remembered that she did not accept the first plea agreement because she refused to testify against Gonzales.
Arlita Morehead, Lapcheska's mother, testified that while she did not remember who explained the clean-up statement, she said that it was explained that Lapcheska would have to testify against Gonzales. Morehead could not remember whether Hirschauer was even present during this alleged explanation.
Gonzales testified that Hirschauer never told him that he also represented Lapcheska, Perez, Campbell, and Garcia. Gonzales said Hirschauer never discussed any conflict of interest with him.
The first and second plea agreements offered to Lapcheska were admitted as exhibits at the hearing. The first plea agreement had no provision for Lapcheska to testify against anyone or to give a clean-up statement. The second plea agreement, entered on March 27, 1998, provided in pertinent part:
a. The Defendant agrees to plead guilty to the information charging Dealing cocaine within ...