FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 2:13-CR-20011-KHV)
Brannon, Kansas Federal Public Defender, Topeka, Kansas, for
N. Capwell, Assistant United States Attorney (Barry R.
Grissom, United States Attorney, with her on the brief),
Office of the United States Attorney, Kansas City, Kansas,
TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
TYMKOVICH, Chief Judge.
Williamson was charged with and convicted of various child
pornography offenses. Prior to trial, it came to light that
his defense counsel and the prosecutor trying the case had a
history together: they were divorced and shared custody of
their child. For that and numerous other reasons, Williamson
asked for new counsel, his third, but the district court
denied his request. He ultimately chose to proceed to trial
without an attorney and was convicted and sentenced to life
in prison. Williamson now argues that the district court
should have inquired into his defense counsel's potential
personal conflict of interest to determine if the
relationship might have affected his right to a fair trial,
and that failure to do so requires automatic reversal.
disagree, and decline to extend the automatic reversal rule
from Holloway v. Arkansas, 435 U.S. 475 (1978),
beyond its traditional application in multiple representation
cases. And since Williamson has failed to make a showing that
his counsel was laboring under an actual conflict of
interest, we reject his conflict of interest argument based
on his defense counsel's personal relationship with the
prosecutor. We also reject Williamson's alternative
arguments for new counsel: that his filing of a criminal
complaint against his counsel constituted an actual conflict
of interest, and that Williamson demonstrated a complete
breakdown of communications between his attorney and himself.
reject Williamson's claim that the district court erred
in allowing him to conduct his trial and sentencing pro se,
since he voluntarily, knowingly, and intelligently waived his
Sixth Amendment right to the assistance of counsel.
Finally, we affirm the district court's denial of
Williamson's motion to suppress evidence recovered during
the search of his Indiana home. We therefore affirm the
district court's decision in its entirety.
was charged with multiple counts of attempting to entice and
coerce a minor to both engage in sexually explicit conduct
and to film the assault. On these charges, he faced a
potential sentence of life imprisonment.
was appointed a federal public defender from Kansas City,
Kansas, who asked to withdraw as counsel seven weeks before
the scheduled trial date. The district court granted that
motion, continued the trial date, and appointed Robin Fowler,
a local private attorney, as defense counsel. In February
2014, three months before the rescheduled trial, Mr. Fowler
also filed a motion to withdraw as Williamson's counsel,
citing a "total breakdown of communication between
counsel and Mr. Williamson." R., Vol. 1 at 109. In his
motion, Mr. Fowler stated that the breakdown was "so
severe that it [was] irreconcilable" and that it had led
to a "complete lack of trust" between himself and
the hearing on his motion to withdraw, Mr. Fowler informed
the court that he had told Williamson, as he tells all of his
clients, that he and the Assistant United States Attorney
assigned to the case, Kim Martin, were divorced and have a
child together. He stated, "[t]hat's not an ethical
dispute or an ethical problem and things like that happen a
lot in smaller towns but I still make it clear. I don't
know if that adds to [Williamson's distrust of my advice]
or not." R., Vol. 2 at 10. The court denied Mr.
Fowler's motion to withdraw, finding the request untimely
because it was close to trial and the court had previously
granted the federal public defender's request to withdraw
close to trial. The court also found that counsel had not
shown a total breakdown in communication, any disagreement
appeared to be "strategic disagreement" over who
should control the case, and Williamson was
"substantially and unreasonably" contributing to
any breakdown in communication. R., Vol. 2 at 54-56; 63-64.
than two weeks before trial, Williamson filed a pro se motion
for new counsel. After holding an expedited hearing on the
motion, the district court denied Williamson's request,
finding that if there was a conflict between Williamson and
Mr. Fowler, Williamson was substantially and unreasonably
contributing to the breakdown in communication, and the
disagreements between the two boiled down to a strategic
disagreement about how the case should be defended.
court rescheduled the trial date, but approximately two weeks
before the rescheduled date, Williamson filed a 12-page
letter with the district court complaining further about his
relationship with defense counsel. In the letter, Williamson
alleged that he no longer trusted his lawyer and-for the
first time-raised Mr. Fowler's relationship with the
prosecutor as a potential conflict of interest in his case.
The letter stated, "I have explained to many people that
my appointed attorney is divorced from the attorney for the
government and everyone has agreed, inmate and guard alike,
that this is a conflict of interest . . . . Does the law
allow me to be represented by such adversaries as friends or
family of the [prosecutor]? I think the court has erred by
appointing Mr. Fowler to me." R., Vol. 1 at 239; see
also id. at 229 ("My court appointed attorney is
Robin Fowler, who is divorced from AUSA Kim Martin (the
prosecutor assigned to my case), [and] is purposely
sabotaging my defense in motions and at hearings . . .
."). The letter also stated that Williamson had filed
criminal charges against Mr. Fowler and was likely to file
civil claims as well, and it questioned whether Mr. Fowler
could continue to represent Williamson while those charges
were pending. Williamson also added complaints about the
district court's impartiality, alleging that the district
court judge was also involved in the conspiracy between Mr.
Fowler and the prosecutor.
district court construed the letter as a motion for new
counsel and held a hearing at which Mr. Fowler supported
Williamson's request for new counsel. Neither the
district court nor Williamson-when given the opportunity to
speak on the record-addressed the issue of Mr. Fowler's
relationship with the prosecutor as a potential conflict of
interest in the case. The district court again denied
Williamson's motion, concluding he had failed to show a
complete breakdown of communication with counsel, and-to the
extent there were disagreements with counsel-they were
matters of strategic disagreement. The district court also
concluded Williamson had substantially and unreasonably
contributed to any communication problems with counsel by
insisting that Mr. Fowler raise what appeared to be frivolous
days before trial, Williamson filed a pro se Motion to
Relieve Counsel and Continue Pro Se. The district court
denied the motion, concluding Williamson's decision to
proceed pro se was "a procedural ploy to obtain new
counsel, " for which Williamson "relie[d] on the
flawed premise that his current counsel is ineffective."
R., Vol. 1 at 267. On the morning of jury selection,
Williamson renewed his request to proceed pro se, and a
different district court judge presided over the proceedings.
The court advised Williamson that if he wanted to proceed pro
se, he would be responsible for all aspects of the trial. The
court carefully reviewed the charges and statutory penalties
with Williamson, and strongly cautioned him against
proceeding pro se. But Williamson insisted on proceeding pro
se anyway, and the court granted his motion.
then represented himself at his trial and sentencing. The
jury found him guilty on all counts, and the district court
sentenced him to life in prison.
Williamson alleges that the district court erred: (1) in
denying his motion for new counsel; (2) by allowing him to
waive his right to counsel and proceed pro se at trial and
sentencing; and (3) in denying his motion to suppress
evidence recovered from a search of his residence. We address
each argument in turn and, finding jurisdiction under 28
U.S.C. § 1291, we affirm the district court's
decision in full.
Motion for New Counsel
challenges the district court's denial of his motion for
new counsel based on irreconcilable conflicts. First, he
claims the court should have examined whether defense
counsel, Mr. Fowler, had a conflict of interest stemming from
his ongoing co-parenting relationship with his former wife,
the Assistant United States Attorney prosecuting
Williamson's case. Alternatively, Williamson argues that
his filing of a criminal complaint against Mr. Fowler created
a conflict of interest between counsel's self-interest
and his duties to represent his client. Lastly, he maintains
that he established a complete breakdown of communication
with Mr. Fowler, and the court abused its discretion in
denying the motion on that basis.
Defense Counsel's Conflict of Interest
first argues that Mr. Fowler had an irreconcilable conflict
of interest because of his former marriage to the prosecutor
and their ongoing co-parenting relationship. He claims this
conflict of interest, along with the strained attorney-client
relationship between Williamson and Mr. Fowler, created a
high risk of the denial of his right to counsel.
Sixth Amendment's guarantee of the right to counsel
"includes the right to representation that is free from
conflicts of interest." Gardner v. Galetka, 568
F.3d 862, 886 (10th Cir. 2009). A conflict of interest is
"a division of loyalties that affected counsel's
performance, " Mickens v. Taylor, 535 U.S. 162,
172 n.5 (2002), and demonstrating a conflict of interest is
one way for a defendant to show good cause to warrant
substitution of counsel, United States v. Porter,
405 F.3d 1136, 1140 (10th Cir. 2005).
case requires us to harmonize a series of Supreme Court cases
addressing conflicts of interest in a variety of
circumstances. A typical potential conflict can arise from
joint or multiple representation situations when more than
one codefendant is represented by the same
attorney. For example, one defendant might be
advantaged in accepting a plea offer or testifying against
his codefendant, but the second defendant could be
disadvantaged if the first defendant chooses to do so.
Multiple representation conflicts may arise at any point in
the criminal process, from the plea bargaining stage to
sentencing, even if the codefendants' interests initially
appear to converge. Wayne R. LaFave, et. al, 3 Crim. Proc.
§ 11.9(a) (4th ed. 2016 update).
types of conflicts can arise from an attorney's
relationship with other clients, witnesses, victims, or-as
here-the prosecution. And although all of the above
situations give rise to a potential conflict of
interest, that potential will only be converted to an
actual conflict of interest if, over the course of
litigation, the defendant's interests actually clash with
his attorney's interests. See id. An actual
conflict of interest therefore means a "conflict that
affected counsel's performance-as opposed to a
mere theoretical division of loyalties."
Mickens, 535 U.S. at 171 (emphasis added). In other
words, an actual conflict exists when "counsel [is]
forced to make choices advancing other interests to the
detriment of his client." United States v.
Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998).
actual conflict can support an ineffective assistance of
counsel claim where the conflict prejudiced the
defendant's representation. See Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984). Generally,
a defendant must demonstrate prejudice flowing from the
conflict, but in some circumstances, a court will presume
prejudice when the conflict amounts to the complete denial of
counsel. See id. at 692; United States v.
Cronic, 466 U.S. 648, 658-60 (1984).
the Supreme Court has applied the "presumed
prejudice" rule only for conflicts of interest in
multiple representation cases. Beginning with Holloway v.
Arkansas, 435 U.S. 475 (1978), the Court established
that whenever a trial court improperly requires counsel to
represent multiple codefendants over counsel's timely
objection, reviewing courts will apply an "automatic
reversal" rule. Id. at 476-91. The Court
explained that while "joint representation is not
per se violative of constitutional guarantees of
effective assistance, " defendants are entitled to
representation free of a conflict of interest. Id.
at 482. In sum, a court has a "duty to inquire"
into a potential joint representation conflict of interest
when defense counsel informs the court of the alleged
conflict prior to trial, and "whenever a trial court
improperly requires joint representation over timely
objection reversal is automatic." Id. at 488;
see also LaFave, supra, at § 11.9(b).
years later, however, the Supreme Court declined to apply the
automatic reversal rule when the defendant did not raise the
conflict of interest prior to trial. In Cuyler
v. Sullivan, 446 U.S. 335 (1980), the Court
distinguished Holloway, noting that trial courts
necessarily rely on the judgment of defense counsel to bring
these matters to their attention, and that counsel "is
in the best position professionally and ethically to
determine when a conflict of interest exists or will probably
develop in the course of a trial." Id. at
347. Therefore, "[u]nless the trial court
knows or reasonably should know that a particular
conflict exists, the court need not initiate an
inquiry." Id. (quoting Holloway, 435
U.S. at 485) (emphasis added). In other words, absent a
credible indication of an actual conflict of interest before
trial, a trial court's duty to inquire is limited.
Prejudice will not be presumed, and the automatic reversal
rule will not apply.
most recent and important Supreme Court decision in this line
of cases is Mickens v. Taylor, 535 U.S. 162 (2002).
In that case, the Court considered a conflict of interest
raised on habeas review. Mickens's lead defense counsel
had been representing the juvenile victim on unrelated
charges when he was allegedly murdered by Mickens. The
juvenile court judge who dismissed the pending charges
against the victim upon the victim's death then appointed
the same defense counsel to represent Mickens on the murder
charge. Counsel did not disclose his prior ...