Bergman v. Witek

99 F. App'x 773

Opinions

MEMORANDUM

*

We review de novo the district court’s legal analysis and its grant of habeas relief.¹ Under Bonin v. Calderon, Bergman is only entitled to habeas relief for a violation of his Sixth Amendment right to counsel free from conflicts of interest if he can “show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance.”²

As in Bonin, the facts of this case do not establish an actual conflict of interest.³ The district court faulted Bergman’s lawyer for not getting an agreement in writing confirming Bergman’s potential release on bail and the return of $4,550 in exchange for his accompanying authorities on a trip to Lake Mead. But often an agreement binding on the government is not available. The lack of an explicit agreement was precisely why no actual conflict was found in Bonin.⁴ Bergman’s lawyer only stood to receive $100 of the funds, had they been returned, as the rest of his fees were to be paid primarily from the deed to Bergman’s house, which is not to imply that a lawyer’s interest in getting paid establishes an actual conflict of interest with the client. A client has an interest in having his lawyer be adequately compensated. The expectation of Bergman’s lawyer to be paid did not “by itself create the type of direct ‘actual’ conflict of interest” that Bergman must demonstrate to prevail on his claim.⁵ Bergman’s interests included a favorable bail recommendation, so his lawyer’s actions in attempting to secure bail were not inconsistent with Bergman’s interests. Unless the interests of a lawyer and a client actually diverge, there is no actual conflict of interest.⁶ That information gathered from the trip to Lake Mead was ultimately used at trial to convict Bergman does not demonstrate that an actual conflict existed.

Because Bergman has not, under current law, established an entitlement to relief, we need not decide whether Teague⁷ would bar relief,⁸ or whether Teague was waived.⁹

The petition for a writ of habeas corpus must be denied.

REVERSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003).

2 . Bonin v. Calderon, 59 F.3d 815, 825 (9th Cir.1995).

3 . Id. at 826 ("The fact that an attorney undertakes the representation of a client because of a desire to profit does not by itself create the type of direct ‘actual’ conflict of interest required by Cuyler[v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)].”)

4 . Id. at 825.

5 . Id.

6 . Id. at 827.

7 . Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

8 . See Bell v. Hill, 190 F.3d 1089, 1091—93 (9th Cir.1999); United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980).

9 . Cf. Goeke v. Branch, 514 U.S. 115, 117—18, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995).