BEA, Circuit Judge, dissenting.

Bypassing the clear restraints enacted by Congress in AEDPA, and fashioning a new rule raising a defendant's suspicions and personal pique to constitutional dimensions, the majority orders the release of Plumlee thirteen years after he was imprisoned — for two terms of life without the possibility of parole — for robbing and murdering Wilbur Richard Beard. Were that not enough, the majority's "irreconcilable conflict" rule augurs innumerable problems for public defenders and trial courts; if allowed to stand, it will generate volumes of litigation for both direct and collateral appeals for years to come.

I fundamentally disagree with the majority's presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court's decision rejecting petitioner Plumlee's "irreconcilable conflict" claim was "an unreasonable application of clearly established Federal law" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d)(1).

First, the facts. The majority skews their rendition of the facts by largely relying on only one version of the story — the story presented by Plumlee. The majority fails to consider the wealth of evidence — presented by numerous witnesses other than Plumlee — that contradict Plumlee's claims of conflicts with, and improprieties by, the Washoe County Public Defender's Office ("Public Defender"). Had the majority considered the full record, they could not have engaged in their exercise of second-guessing the state court's factual findings. Put simply: the evidence contrary to Plumlee's claims supplies the "reason" that makes the state court's findings not an "unreasonable determination of the facts."

Second, the law. The majority sets forth a rudderless, subjective rule for finding an "irreconcilable conflict" between a criminal defendant and his counsel, focusing solely on whether the defendant had a "reasonable" belief that his counsel could not effectively represent him regardless whether the "reason" for such belief was based on nothing but the defendant's result-driven suspicions. This novel rule radically expands upon the "irreconcilable conflict" doctrine and is unsupported — and indeed conflicts — with U.S. Supreme Court precedent and our own precedent. Contrary to the rule adopted by the majority, a finding of an "irreconcilable conflict" requires specific, objective evidence of a conflict — one not caused by the defendant — which rises to such a level that counsel could not or would not act as an effective advocate account the conflict.

For those reasons, I respectfully dissent.

I. The Facts

Because I disagree with the majority's presentation of the facts, I first consider the scope of our review under 28 U.S.C. § 2254(d)(2). Deference to the state court's factual findings is the hallmark of that section. "[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004).

The majority relies upon three claimed sources of conflict between Plumlee and his appointed counsel from the Public Defender. It next references statements made by Judge Mills Lane III, who presided over Plumlee's trial and state habeas proceedings. Last, it cites statements made by Steven Gregory, Plumlee's second-appointed Public Defender attorney. On the basis of those claims and statements, the majority concludes an "irreconcilable conflict" existed between Plumlee and the Public Defender because Plumlee "reasonably and in good faith believed that members of the [Public Defender] were leaking information about his case to another suspect in the case and to the District Attorney . . . [and t]he resulting distrust that arose between Plumlee and his appointed [Public Defender] attorney was such that the attorney himself likened his representation of Plumlee to no representation at all." Majority op. at 913. In reaching that conclusion, the majority disregards the voluminous evidence suggesting Plumlee's distrust was based on incidents that either did not occur or were fabricated by Plumlee, and misrepresents the context in which the statements were made by Gregory and Judge Lane. I discuss below each of Plumlee's claimed sources of conflict relied upon by the majority and place into correct context the statements made by Judge Lane and Gregory.

A. Plumlee's Three Claims of Conflict, Each and All Uncorroborated, and Overwhelmingly Contradicted by the Evidence

1. The O'Neill "Leak"

The majority begins with Plumlee's claim that Shelly O'Neill, the chief public defender with the Public Defender, divulged confidential information to John Dewey, who was a friend of O'Neill and Plumlee's former roommate. The majority states that "according to Plumlee's sister, Dewey said that O'Neill had told him that Plumlee had implicated Dewey in the murder, and that O'Neill had suggested Dewey should seek legal counsel." Majority op. at 913.

This claim is supported by only two statements, both made by Plumlee. First, Plumlee stated at a pre-trial hearing that Dewey told him that O'Neill told Dewey "he should contact a lawyer because [Plumlee] was implicating him in the murder." (ER 60.) At the later evidentiary hearing on his state habeas petition, Plumlee contradicted himself and testified that his sister told him she had "talked to John Dewey. John Dewey had informed her Shelly O'Neill . . . had said that I had implicated him in the murder." (ER 162.)

The unreliability of this claim is immediately evident. Plumlee's testimony at the evidentiary hearing is flatly inconsistent with his first version, and it is also not just hearsay, it is quadruple hearsay. Notably, Plumlee's sister never testified.

Two witnesses controverted Plumlee's claim. Dewey testified and denied that O'Neill told him to seek legal counsel or not to talk to Plumlee. (ER 145-47.) Dewey explained he was friends with Plumlee and O'Neill, and when Plumlee was first accused of murder, Dewey took Plumlee to Dean Heidrich, O'Neill's husband and an attorney, for legal advice. (ER 141-143.) Knowing that Plumlee could not afford an attorney, Dewey also spoke to O'Neill regarding how Plumlee could obtain a public defender. (ER 144, 148.)

O'Neill also testified and denied that Dewey ever came to her to tell her he was a suspect in the crime, nor did Dewey tell her Plumlee implicated him in the murder. (ER 187.) Nor did she recall telling Dewey that Plumlee had accused him or that Dewey was a suspect in the murder. (ER 189.) To the contrary, O'Neill corroborated Dewey's testimony that Dewey and she met to discuss only how Plumlee could acquire a public defender and obtain release on bail. (ER 193.)

In written findings of fact, the state habeas court found: "Shelly O'Neill did not receive or reveal any confidential communications from Plumlee at any time about Plumlee's case, nor did she reveal any confidential communications to anyone, particularly Plumlee's friend, Mr. Dewey." (Supplemental Excerpts of Record (hereinafter "SER") Ex. 5 at 2.)

Putting on one side Plumlee's contradictory claims of treachery, and on the other Dewey and O'Neill's testimony, can we honestly say the state court made an "unreasonable determination of the facts" in choosing to believe Dewey and O'Neill's testimony over Plumlee's? Clearly it was not unreasonable for the state court to find there was no basis for a conflict between Plumlee and the Public Defender because of O'Neill's contact with Dewey.

2. The Allison "Leak"

Second, the majority states:

According to Plumlee, Allison lied to him about the fact that he would be taking [a job at the Washoe County District Attorney's Office ("District Attorney")]. Prior to Allison's departure . . ., Plumlee also suspected that Allison was leaking information to the District Attorney's Office. Plumlee's suspicions arose because he had told Allison about the potential evidentiary value of his car and evidence that might be in it, and shortly thereafter, the vehicle, then in police custody, was destroyed.

Majority op. at 913.

Again, these claims of conflict are supported only by Plumlee's own statements. First, at the state evidentiary hearing, Plumlee testified Allison lied to him when Plumlee asked if Allison was going to take a position with the District Attorney. (ER 173-74.) Yet Allison denied ever lying to Plumlee about taking a position with the District Attorney. (PCH at 109.) He confirmed that while he was representing Plumlee, he received a job offer from the District Attorney, and the offer was "to take effect virtually immediately." (PCH at 108, 111.) Allison also testified he had been seeking a position at the District Attorney for over two years (before representing Plumlee), that he accepted the offer immediately, and Allison then told Plumlee "this would not affect [Plumlee's] case in any way. [Allison] would not be involved with anyone that had anything to do with [Plumlee's case] in the District Attorney's Office." (PCH at 108-09.) In written findings of fact, the state court found that when Allison took the position at the District Attorney, he had no contact with Plumlee or his case, and Plumlee's claim he was never informed of the job switch was not credible. (SER Ex. 5 at 6.)

Second, in a pre-trial motion to substitute counsel, Gregory averred generally that Plumlee told him that Allison divulged confidential information to the District Attorney. (ER 41.) Beyond that general averment, Plumlee stated only once during the state evidentiary hearing that Allison divulged information to the District Attorney regarding the potential exculpatory value of the vehicle. Plumlee testified: "It was my belief that information was being passed on to the[District Attorney], such as when I informed him of the vehicle's potential value, the vehicle no longer existed." (Tr. of Post-Conviction Hr'g, Dec. 4, 1997, (hereinafter "PCH") at 46.) After that statement, Plumlee never again claimed Allison conspired with the District Attorney to destroy Plumlee's vehicle. Plumlee did not allege that claim in his federal habeas petition, (ER 24-25) nor did he argue that claim before this court in his briefs. Instead, Plumlee argued only that Allison provided ineffective assistance of counsel — separate from his "irreconcilable conflict" claim, and not at issue here — by failing to preserve potentially exculpatory evidence in the vehicle. (ER 21.)

Plumlee's "divulging information" claim was flatly controverted by defense counsel Gregory and Allison. At a pre-trial hearing, Gregory told the state court that he spoke with Allison and the prosecutor regarding Plumlee's claim of confidentiality breaches; both individuals assured Gregory that Allison had not discussed and would not discuss the case with the District Attorney. (ER 48.) In accepting those representations, the state court found Allison did not divulge any information to the District Attorney. (ER 51.)

Plumlee later filed a motion to disqualify the District Attorney from prosecuting the case on the ground Allison had earlier represented Plumlee but then took a position with the District Attorney. (Mot. to Disqualify, June 5, 1992, at 1.) At the hearing on the motion, Allison testified he never divulged any privileged information regarding Plumlee to the prosecutor, any other person in the District Attorney, or anyone in law enforcement. (Tr. of Hr'g on Mot. to Disqualify, June 9, 1992, at 4-5.) The trial court denied the motion, finding no reason to disqualify the District Attorney. ( Id. at 6.)

After the state evidentiary hearing, the trial court found in written findings of fact that "[t]he police released Plumlee's vehicle to the lienholder, but without the knowledge or consent of Allison." (SER Ex. 5 at 5.) The court also found "the release of Plumlee's vehicle was not the result of bad faith or connivance on the part of the police or the prosecution." (SER Ex. 5. at 6.)

Again, putting on one side Plumlee's claims that Allison lied to him about accepting a position with the District Attorney and that Allison divulged information regarding Plumlee's vehicle to the District Attorney, and on the other Allison's denial that he lied to Plumlee, and Allison's and Gregory's denials that either informed or connived with the District Attorney to destroy Plumlee's vehicle, can we honestly say the state court made an "unreasonable determination of the facts" in choosing to believe Allison's and Gregory's testimony over Plumlee's? Clearly, it was not unreasonable for the state court to believe Allison and Gregory and to disbelieve Plumlee, leading it to find there was no basis for a conflict between Plumlee and the Public Defender.

3. The Gregory Bail Order Denial

Third, the majority states: "Gregory, Plumlee's second-appointed counsel at the [Public Defender], denied the existence of a bail order for Plumlee. Plumlee claims that when he insisted it existed, Gregory told him he needed psychiatric treatment. The next morning, the District Attorney produced a copy of the order." Majority op. at 913.

One could interpret this claim in two ways. First, one could infer discord in the attorney-client relationship if Gregory was telling Plumlee he needed psychiatric treatment. Second, one could infer even greater discord, even an "irreconcilable conflict," if Gregory was conspiring with the prosecution by denying the existence of a bail order for Plumlee, thus impeding Plumlee's defense by keeping him in jail when a bail order was outstanding.

But again, Plumlee's claim is supported only by his own statements. At a pre-trial hearing, Plumlee claimed Gregory lost the bail order, but Plumlee found it, told Gregory about it, and the next day the prosecutor coincidentally produced a copy of it. (ER 60-61.) Notably, Plumlee made no statement at the pre-trial hearing that Gregory told Plumlee he needed "psychiatric treatment." At the conclusion of the hearing, the trial court concluded the loss of the bail order was a result of miscommunication, not of any conspiracy. (ER 61.)

At the state evidentiary hearing, Plumlee repeated his claim regarding the bail order, but added that when he informed Gregory that he had found the bail order, Gregory told Plumlee he "needed psychiatric treatment, because no bail order existed." Plumlee also testified he told Gregory not to discuss the discovery of the bail order with the prosecutor, but the next morning, the prosecutor coincidentally claimed to have found the order. (ER 169-70.)

Yet again, this claim was controverted by Gregory. Gregory denied having any communication with the District Attorney regarding the bail order. (ER 66.) Plumlee's statement that Gregory told him he needed "psychiatric treatment" was not raised during Gregory's direct or cross-examination at the evidentiary hearing.

Thus, the only evidence supporting this claim is Plumlee's own testimony. Plumlee did not raise the "psychiatric treatment" story until long after the statement was purportedly made, and Gregory denied having any communication with the District Attorney regarding the bail order.

Again, putting Plumlee's relation of events on one side, and Gregory's on the other, can we say the state court made an "unreasonable determination of the facts" in accepting Gregory's version? Clearly, it was not unreasonable for the state court to determine the lost bail order was a miscommunication rather than a conspiracy between the Public Defender and the District Attorney.

B. Statements Made by Judge Lane

In addition to the three claims discussed supra, the majority also relies upon statements made by Judge Lane at the evidentiary hearing over which he presided. The majority states that Judge Lane's comments

suggested that Plumlee's distrust of the [Public Defender] was justified. Though Judge Lane recognized that Plumlee had given his lawyers conflicting accounts of his involvement with the murder, and the judge ultimately credited both David Allison's testimony that he had been candid with Plumlee about his plans to join the [District Attorney] and Shelly O'Neill's testimony that she had not leaked information about Plumlee's case, the judge's remarks indicate the reasonableness of Plumlee's apprehensions about the [Public Defender].

Majority op. at 915-916; see id. at 922 (stating "the very judge who denied Plumlee's motion to substitute counsel later indicated [Plumlee's apprehensions] were reasonable.").

The majority reaches that conclusion by engaging in a selective and isolated reading of the evidentiary hearing transcript. Taken in proper context, Judge Lane neither suggested Plumlee's distrust of the Public Defender was justified, nor did his remarks "indicate the reasonableness" of Plumlee's distrust. What follows is an expanded passage of the transcript cited in part by the majority. To place it into context, the passage reflects comments made by Judge Lane at the close of Plumlee's presentation of evidence (which the majority to their credit recognizes), but before the state presented any witnesses or argument. The portions quoted by the majority are in regular type, the omitted portions are in italics, and I underline several passages which I consider telling:

THE COURT: . . . I will tell you right now, I am not going to [make any findings yet], because I am not sure what it is going to be yet until I hear some further stuff, I am not going to give any preview what my decision is. I will tell you right now, I was aware of this a little bit while this was going on. I wasn't aware what the depth of it was. We didn't have it flushed out. You have done a good job flushing it out.

In my view, Mr. Allison did not do the kind of job a good, first rate defense counsel would do. That is not disposistive. [sic] I will make that statement right here on the record for anybody to see.

Number two, I think that Ms. O'Neill and the [Public Defender] was [sic] in dangerous waters.

Certain inferences that can be drawn from what was going on in the case and her relationship or lack therefor with Mr. Dewey, what was said, not said to various people, I think that is extremely dangerous. I further think, and I would like to have him here to testify, I probably won't unless the prosecution is going to bring him, I think it is terribly improper to know, I believe Mr. Allison did know that he was going to become a Deputy District Attorney and not tell your client that. I think that was extremely out of line. I think it is unprofessional. I don't think anything is wrong with going from one side of the street to the other as long as there are certain professional standards which are kept up with and met. I think it is inappropriate to tell a client facing a murder charge things that aren't true. And I think that probably happened in this case. Knowing Mr. Allison, I think it did happen in this case. But I don't think that is dispositive of the issue. I also think that your client's, I don't want to use the word bravado, that is not the word, but your client's coyness about what his lawyer had to know, what his lawyer didn't have to know is inappropriate. I mean to say, "All you have got to know is I didn't do it. You get out there and show it," that is not going to get it in my view.

I don't know where that leads us. But your client didn't do very much to help himself even when he had lawyers that might have been able to help him. If I was representing him, I doggone sure would want to know everything, bad and good.

(ER 179-80.)

As noted, Judge Lane made these comments before the state had presented any witnesses or argument. Immediately after Judge Lane made the above statements, the state attorney stated: "I am a little concerned, with all due respect, you might have decided something about him without evidence in this case, just deciding on what this guy [Plumlee] said." (ER 181.) Judge Lane responded: "No. I said I want to hear the evidence." (ER 181.) Judge Lane then twice reassured the state attorney that he had not "prejudged" the merits of Plumlee's claims. (ER 182, 184.)

The majority's contention that those comments establish that Plumlee's distrust of the Public Defender was "reasonable" or "justified" are belied by Judge Lane's insistence that he had not "prejudged" the merits of Plumlee's claims, especially since the comments were made when Plumlee's case was in, but the state had yet to present its case. Indeed, at the conclusion of the evidentiary hearing, Judge Lane issued written findings that Allison was candid with Plumlee about taking a position with the District Attorney, had no contact with Plumlee or his case after taking a position with the District Attorney, and O'Neill had not leaked any confidential information to Dewey. (SER Ex. 5 at 2, 6.) The majority summarily discounts that contrary evidence.

In an attempt to support further its conclusion, the majority also quotes from Judge Lane's comments at the close of all of the evidence. I offer below another expanded portion of the transcript:

THE COURT: But let me ask you this question, which to me goes to the heart of part of your position.

MS. CARTLEDGE [Plumlee's attorney]: Yes, sir.

THE COURT: First, it is clear Mr. Plumlee didn't trust, didn't like or trust the [Public Defender] for reason. And based upon certainly where he was sitting, I can't disagree he had a right to feel that. Certainly he may have felt that way for good reason, at least in his own.

Now when everything finally shook out, he said, "I don't want a lawyer in the [Public Defender]." "I said, sorry, if you don't want a lawyer in the [Public Defender]. You pay for your own, otherwise you get the Public Defender." Whether I am right or wrong on that, and being right or being wrong is sometimes very elastic, the Supreme Court in dismissing the appeal I guess, I guess sub silentio is saying the trial judge did not commit legal error. So we wind through, this thing. Ultimately, Mr. Plumlee winds up being his own attorney. That is what we wind up with. Well, now, that sums up kind of everything. We already know that the Supreme Court has said I am not wrong by saying you can't get somebody else. So he's saying, "I don't want you. I am going to do it myself." Well, if he does it himself, he can't get up and say, "Gee, I had ineffective assistance of counsel." He's the counsel.

(PCH at 177-78.)

The majority claims that passage supports the proposition that Judge Lane "maintained his view that Plumlee's suspicions had been reasonable." Majority op. at 916. Judge Lane said nothing of the sort. He stated that "based upon certainly where [Plumlee] was sitting, I can't disagree he had a right to feel that." (PCH 177; see PCH 184 (Judge Lane stated: "I can understand why Mr. Plumlee felt like he did. I doggone sure can.").) All those statements mean is that because Plumlee was sitting as a defendant in a murder case, facing a possible life sentence, one could expect him to raise a claim to the emotional feeling of being betrayed by the Public Defender. But apart from this emotion, did Plumlee have a reason, based on objective fact, to conclude he was being betrayed? No. As noted above, Judge Lane found O'Neill did not divulge confidential information to Dewey. (SER Ex. 5 at 2.) Judge Lane found Allison did not lie to Plumlee about taking a position with the District Attorney, nor did he conspire with the District Attorney to destroy exculpatory evidence. (SER Ex. 5 at 5-6.) Judge Lane found Gregory did not conspire with the District Attorney to hide a lost bail order. (ER 61.) Although Plumlee may have had a subjective distrust of the Public Defender, Judge Lane found no reason for Plumlee to conclude he was being betrayed.

Finally, the majority states that "Judge Lane even suggested that he might be inclined to grant the petitioner had the state Supreme Court not (in his view) fore-closed the irreconcilable conflict/forced self-representation argument." Majority op. at 916. This is flat wrong.

Judge Lane did consider the "irreconcilable conflict" issue foreclosed by the Nevada Supreme Court's earlier decision, but then expressly stated that even if he would reconsider the issue, he would still reach the same conclusion. After Plumlee's counsel insisted Judge Lane could consider the issue whether the trial court erred in not substituting counsel, Judge Lane responded:

Well, it is raised. Ms. Cartledge, you made the record. That is rejected. It is rejected for this reason: One of these days we are going to realize that there has to be some limit here. People cannot come in and say, "Gee, it wasn't the lawyer I wanted." I don't care. The Public Defender is there for a reason. You get the Public Defender. They may not be the best. I happen to think they are not too bad. They may not be the best. You may find some don't do the job. That is what they are there for. They get paid to do it. That is who you get. If you don't like it, too bad. If you want to hire your own lawyer, hire them.

(PCH at 187-88.)

The majority discounts this passage by arguing that it "might best be understood as a defense of the state Supreme Court's ruling by which the judge considered himself bound. In any event, Judge Lane never retreated from his characterization of Plumlee's distrust of his lawyers as reasonable." Majority op. at 917 n. 5. Yet by its plain terms, the passage contradicts the majority's conclusion. Even if the issue wasn't foreclosed by the Nevada Supreme Court, Judge Lane was not inclined to grant Plumlee's petition. Although Judge Lane's comments are not packaged in the most sympathetic terms, his statement that "[o]ne of these days we are going to realize that there has to be some limit here. People cannot come in and say, 'Gee, it wasn't the lawyer I wanted,'" is comparable with the Nevada Supreme Court's rejection of Plumlee's "irreconcilable conflict" claim; that court stated "Appellant never showed adequate cause justifying appointment of new counsel, and the court below did not abuse its discretion in refusing to do so." (ER 124.)

C. Statements Made by Defense Counsel Gregory

The majority also places special emphasis on Gregory's statements that Plumlee did not trust the Public Defender and, by extension, Gregory. The majority notes in an affidavit accompanying a motion to substitute, Gregory attested that

Plumlee distrusted the [Public Defender] and believed that members of the office had leaked information about his case. As a result, Gregory explained, Plumlee was "unable to establish an attorney/client relationship with me or any of my colleagues in the [Public Defender]" and was therefore "unable to properly assist counsel in his defense."

Majority op. at 914. The majority also notes Gregory stated that "because of Mr. Plumlee's mistrust with the[Public Defender] and anyone attached to the [Public Defender], he is unable to properly assist me, therefore, making my efforts less than effective." Id. at 914; see id. at 915 (Gregory stated: "The main reason this man wants to go pro per is because he doesn't trust us and, frankly, Judge, I don't really trust the relationship that I have with Mr. Plumlee. . . . I am going to beg the Court to appoint outside counsel to act as legal advisor for Mr. Plumlee.").

The reasoning for Gregory's statements are, of course, highly relevant in identifying whether an "irreconcilable conflict" existed between Plumlee and Gregory; and if so, whose fault was that? The majority grasps at Gregory's statements as support for their finding of an "irreconcilable conflict," but a closer look at the statements and their context suggest a different and reasonable conclusion, one accepted by the Nevada Supreme Court. In rejecting Plumlee's claim of an "irreconcilable conflict," the court recognized that "a defendant's refusal to cooperate with appointed counsel is no basis for a claim of inadequate representation." (ER 124.) The record supports the conclusion that Plumlee refused to cooperate with Gregory and the Public Defender, both through contumacious behavior and his intention to commit perjury.

In his first motion to substitute counsel, Plumlee made no specific claims against the quality of Gregory's representation, other than he mistrusted the entire Public Defender's office. (ER 40-42.) At the hearing on the motion, Gregory stated he had "worked very hard to establish a relationship of trust with Mr. Plumlee. I think that's an impossibility because of certain matters that have occurred in this case." (ER 47-49.) Gregory stated part of Plumlee's mistrust arose from Plumlee's suspicions regarding Allison, but Gregory noted they also arose from "certain matters that are — that I consider serious that would fall under the category of privileged communications." (ER 50) (emphasis added.) The state court denied the first motion to substitute.

The issue of "privileged communications" arose again when Plumlee brought a second motion to substitute or, in the alternative, to represent himself. At the hearing on the motion, Gregory stated "we are in a Catch-22. I can't disclose . . . that type of privileged communication. I can just offer myself to the Court as indicating that I feel that there is real difficulty with the [Public Defender], myself and Mr. Hylin [another public defender] representing Mr. Plumlee." (ER 57) (emphasis added.) During this hearing, Plumlee himself conceded he did not question Gregory's "excellence in law," stated twice he agreed Gregory was competent, and also that he trusted Gregory. (ER 62, 64-65). Indeed, after discussing self-representation with the court, Plumlee withdrew his motion to represent himself and the court denied the motion to substitute. (ER 68.)

The next day, Plumlee renewed his motion to represent himself, which the court granted, appointing Gregory to act as stand-by counsel. (ER 77.) Gregory moved to be relieved because he didn't "really trust the relationship that I have with Mr. Plumlee. I feel very uncomfortable talking to him one on one because of certain things that have occurred that I cannot relate to the Court . . . ." (ER 77-78) (emphasis added). Gregory also stated "I am going to beg the Court to appoint outside counsel" for Plumlee. (ER 78.) The court denied Gregory's motion to be relieved. (ER 78.)

As can be expected, at the evidentiary hearing on Plumlee's state habeas petition, the state focused upon Plumlee's difficulties with Gregory. The resulting testimony suggested the difficulties between Gregory and Plumlee resulted not from actions on the part of Gregory or the Public Defender, but instead from Plumlee's own recalcitrance. During the hearing, Plumlee admitted he was uncooperative with his counsel and initially refused to assist them in his defense. (PCH at 54-56.) Plumlee also admitted to lying repeatedly to his attorneys, resulting in Gregory having ethical concerns that Plumlee would perjure himself. (ER 170-71; PCH at 53, 152-54, 162-64.)

First, Plumlee testified that in developing his defense theory with Allison, he "told Mr. Allison I am just going by what the police report said. I let him know from the start that I wasn't even going to discuss [the defense theory]. When it came for trial, that is when we would go over that." (PCH at 54.) Plumlee also testified he did not consider it important to tell Allison the truth regarding his defense theory; Plumlee testified Allison "really did not need to know those certain facts, no, he did not. . . . All Mr. Allison needed to know was I did not commit the murder. If Mr. Allison had done any investigation, it would have showed everything else." (PCH at 54-55.)

Second, Plumlee testified that in 1991, at the beginning of his representation by the Public Defender, he told Allison he was not present at the murder scene. (PCH at 53.) Plumlee changed his story around January 1992; this change was precipitated by the return of DNA evidence from the police lab, which confirmed the victim's blood was in Plumlee's car. (PCH at 51, 59-60.) Plumlee then stated he was present at the scene. (PCH at 53.) Plumlee also testified that around the time of his pre-trial motions to substitute, Plumlee changed stories again:

I had told Gregory what had actually transpired as far as the murder was concerned. Gregory said, "Because you had not been forthcoming with the [Public Defender], I cannot question you on the stand." He said, "This will help you go pro per because, number one, if you have to represent yourself, it will become a narrative. But what should happen is when you go pro per, I will stand up and ask that he appoint stand-by counsel outside the [Public Defender]".

(ER 170-71.)

Gregory confirmed Plumlee repeatedly changed his story and lied to the Public Defender. (PCH at 152-54.) Gregory testified he had an "ethical reservation" because of Plumlee's dishonesty and because Plumlee had stated he intended to testify at the trial. (PCH at 162-63.) Gregory denied, however, telling Plumlee he couldn't represent him because of his ethical reservations. (PCH at 164.) Instead, Gregory testified that as appointed counsel and later as stand-by counsel, he and the Public Defender

did everything in our power to create a defense for Mr. Plumlee whenever he came up with a story or a variation of a story. The problem was, when we would point out to him that he had a fatal hole or some sort of illogic in the story, then a week later he would have another version. And he had a habit of lying to us.

(PCH at 154.)

A reasonable conclusion from the foregoing is that Gregory requested to be relieved not because of his own refusal to represent Plumlee or present a defense, but because Plumlee would not cooperate with Gregory or other Public Defender attorneys, and because Plumlee's frequent dishonesty raised ethical problems for Gregory. The Nevada Supreme Court implicitly adopted such a conclusion when it determined Plumlee "never showed adequate cause justifying appointment of new counsel." (ER 124.) That conclusion was not an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2).

D. Summary

In sum, Plumlee's claim of a conflict with the Public Defender can arise from two theories. The first theory, proposed by Plumlee and endorsed by the majority, is that the Public Defender sold Plumlee out by (1) leaking confidential information to another suspect (Dewey); (2) leaking confidential information to the District Attorney and destroying exculpatory evidence; (3) impeding Plumlee's defense by keeping him in jail while a bail order was outstanding; and (4) lying to Plumlee about Allison's plans to transfer to the District Attorney.

The second theory, endorsed by the Nevada Supreme Court and which is certainly not unreasonable, is that (1) Plumlee kept his attorneys in the dark by refusing to cooperate beyond denying his guilt and telling his attorneys to go out and prove his innocence; (2) Plumlee lied to his attorneys, beginning with his story that he was not at the murder scene, which was perforce changed when the DNA evidence confirmed the victim's blood was in Plumlee's vehicle; and (3) attorney Gregory had well-founded ethical reservations about Plumlee possibly perjuring himself at trial.

The Nevada Supreme Court picked the second theory, probably because it was offered through more and better witnesses, and because the former theory rested solely on Plumlee's own statements, a slim reed on which to base a claim of "irreconcilable conflict." The court stated that Plumlee "never showed adequate cause justifying appointment of new counsel." (ER 124.) That conclusion is supported by the record under even a "clear error" standard — i.e., "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Yet under 28 U.S.C. § 2254(d)(2), we may grant Plumlee's habeas petition only if that conclusion "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The U.S. Supreme Court has held that for purposes of 28 U.S.C. § 2254(d)(1), the "unreasonable" standard of review is even more deferential then the "clear error" standard. See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). I see no reason to use a different definition of the term "unreasonable" in section 2254(d)(2) than used in (d)(1), and thus, it follows that if the factual findings are not clearly erroneous, perforce they must not be an "unreasonable determination of the facts" under section 2254(d)(2).

With a more complete understanding of the facts of this case, I turn now to the majority's primary conclusion; that is, the Nevada Supreme Court's decision that Plumlee "never showed adequate cause justifying appointment of new counsel" (ER 124) was an unreasonable application of clearly-established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1).

II. The Law

Under 28 U.S.C. § 2254(d)(1), we have authority to grant a writ of habeas corpus if "the state court identifies the correct governing legal principle from [U.S. Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75, 123 S.Ct. 1166. Our review is highly deferential; we can grant the habeas petition only if the state court's application of clearly established law is "objectively unreasonable." Id.

The majority misreads U.S. Supreme Court precedent and radically expands the breadth of the "irreconcilable conflict" doctrine. Indeed, the rudderless, subjective rule applied by the majority has no support in U.S. Supreme Court precedent or our own precedent. The effect of the rule will be felt by more cases than this one; it will spawn numerous problems between public defenders and their clients and generate volumes of litigation from contumacious defendants.

A. Clearly-Established Federal Law

The Sixth Amendment "guarantees that 'in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.'" Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (quoting U.S. Const, amend. VI). The right to counsel encompasses appointment of counsel for the indigent, and is "designed to assure fairness in the adversary criminal process." Id. That latter point should not be ignored; "the purpose of providing assistance of counsel 'is simply to ensure that criminal defendants receive a fair trial.'" Id. at 159, 108 S.Ct. 1692 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The U.S. Supreme Court has emphasized that "in evaluating Sixth Amendment claims, 'the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Id. (quoting United States v. Cronic, 466 U.S. 648, 657, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Although "the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id. It naturally follows that "a defendant may not insist on representation by an attorney he cannot afford. . . ." Id. at 159, 108 S.Ct. 1692; see Caplin Drysdale v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) ("Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts."). Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), is similar to the facts here and deserves closer examination than it was given by the majority. There, the petitioner was charged with rape, robbery, burglary, forcible oral copulation, and false imprisonment. Slappy v. Morris, 649 F.2d 718, 719 (9th Cir.1981), rev'd sub nom. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The trial court appointed public defender Harvey Goldfine as the petitioner's counsel. Six days before trial, public defender Bruce Hotchkiss replaced Goldfine because Goldfine was hospitalized for surgery. Id. On the day of trial, the petitioner complained to the trial court Hotchkiss had insufficient time to prepare for trial; Hotchkiss disagreed and stated he was prepared. Id. The trial court interpreted the petitioner's statement as a motion for continuance to substitute counsel and denied it. Id.

The petitioner thereafter refused to cooperate with Hotchkiss. During trial, the petitioner interrupted the proceedings, at one time claiming Hotchkiss told him that he had no defense to his charges. Id. at 719 n. 1. The jury convicted the petitioner of robbery, burglary, and false imprisonment, but deadlocked on the rape and forcible oral copulation charges. The court ordered a mistrial on those counts, which the state retried the next week. Id.

"Communication between Slappy and Hotchkiss broke down to such a point during the second trial that Hotchkiss asked the court to remove him as counsel because he felt he could not render effective assistance in the face of such conflict. After a conference in chambers, Hotchkiss withdrew his motion." Id. at 719-20 (emphasis added). The petitioner was convicted on the rape and forcible oral copulation charges. Id. at 720. The state courts affirmed the convictions on appeal, and the federal district court denied the petitioner's habeas petition. Id.

We reversed, holding the trial court violated the petitioner's Sixth Amendment rights by refusing to grant a continuance until Goldfine could represent the petitioner. Id. We reasoned a defendant's right to counsel "include[s] the right to a meaningful attorney-client relationship," and concluded the petitioner's relationship with Hotchkiss was "without substance" because the petitioner did not "have confidence in [Hotchkiss's] ability to represent the petitioner's best interests." Id. at 720-21.

The U.S. Supreme Court reversed. The Court counseled that "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris, 461 U.S. at 11, 103 S.Ct. 1610; see Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir.2000) (en banc) ("not every conflict or disagreement between the defendant and counsel implicates Sixth Amendment rights."). The Court admonished us that our

conclusion that the Sixth Amendment right to counsel "would be without substance if it did not include the right to a meaningful attorney-client relationship," is without basis in the law. No authority was cited for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be. No court could possibly guarantee that a defendant will develop the kind of rapport with his attorney — privately retained or provided by the public — that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel.

Morris, 461 U.S. at 13-14, 103 S.Ct. 1610 (emphasis in original, internal citation omitted).

Notably, the Court also rejected the petitioner's "irreconcilable conflict" claim. Recognizing that the petitioner claimed in his habeas petition "that the state trial court abused its discretion by failing to order a substitution of counsel after the defendant and counsel became embroiled in irreconcilable conflict," id. at 4, 103 S.Ct. 1610 (internal quotation marks and alterations omitted), the Court held that "the facts shown by the record conclusively rebut [this] claim and are alone dispositive, independent of the correctness of the novel Sixth Amendment guarantee announced by the Court of Appeals." Id. Accordingly, the Court reversed our judgment and remanded with instructions to deny the defendant's habeas petition. Id. at 15, 103 S.Ct. 1610.

The U.S. Supreme Court has also held a conflict between a defendant and counsel does not implicate Sixth Amendment rights when the conflict is premised upon the defendant's plan to perjure himself. Nix v. Whiteside, 475 U.S. 157, 176, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). There, the defendant was charged in state court with murder, initially telling his attorney he shot the victim in self-defense when he saw the victim had a gun. Id. at 160-61, 106 S.Ct. 988. The defendant later admitted to counsel he did not see a gun, but would testify that he did see one. Counsel advised the defendant he would not suborn perjury, and if the defendant persisted in his plan, the attorney would so advise the court. Id. The defendant testified he did not see a gun, and he was convicted. Id. at 161-62, 106 S.Ct. 988. The state courts affirmed the conviction, the district court denied the defendant's federal habeas petition, but the court of appeals reversed, holding the defendant received ineffective assistance of counsel because counsel threatened to advise the court of the defendant's perjurious plan. Id. at 163, 106 S.Ct. 988. The U.S. Supreme Court reversed:

Here, there was indeed a "conflict," but of a quite different kind; it was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony without which, as he put it, "I'm dead." This is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan [, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)]. Even in that case we did not suggest that all multiple representations necessarily resulted in an active conflict rendering the representation constitutionally infirm. If a "conflict" between a client's proposal and counsel's ethical obligation gives rise to a presumption that counsel's assistance was prejudicially ineffective, every guilty criminal's conviction would be suspect if the defendant had sought to obtain an acquittal by illegal means. Can anyone doubt what practices and problems would be spawned by such a rule and what volumes of litigation it would generate?

Id. at 176, 106 S.Ct. 988.

Drawing on the above precedent, we have observed that an "irreconcilable conflict" can exist when "the conflict between [a defendant] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026. Yet we also observed that if the conflict between the defendant and his counsel was caused by the defendant, or "arose over decisions that are committed to the judgment of the attorney and not the client," no Sixth Amendment violation accrues. Id.

In Schell, we concluded the petitioner's allegations in his habeas petition of an "irreconcilable conflict" with his counsel were sufficient to entitle him to an evidentiary hearing in federal district court:

Schell says that a dispute with his public defender over the only evidence in the prosecution's case that could link him to the crime became hostile and resulted in the disintegration of communications both with him and with members of his family about her preparation of his defense. Counsel allegedly told Schell that she would not waste government money on a fingerprint expert, and that he should not waste the court's time or money on a trial and should accept the plea bargain. If true, this explanation may have been tantamount to her telling him that she would neither investigate his case nor defend him unless he pleaded guilty.

Id. at 1026-27. On that basis, we held the defendant was entitled to an evidentiary hearing because if the defendant was able to establish those claims, he would be entitled to habeas relief under the pre-AEDPA standard of review. Id. at 1027.

B. The "Irreconcilable Conflict" Rule

From those cases, one can infer the proposition that a defendant's subjective evaluation of his counsel's performance, or subjective belief in the existence of a conflict with his counsel, do not create an "irreconcilable conflict." See Cronic, 466 U.S. at 657, 104 S.Ct. 2039; Wheat, 486 U.S. at 159, 108 S.Ct. 1692. Instead, an "irreconcilable conflict" requires specific objective evidence of a significant internal conflict between the defendant and counsel that rises to such a level that counsel could not or would not act as an effective advocate account the conflict. See Cronic, 466 U.S. at 659 n. 21, 104 S.Ct. 2039. But if the evidence shows the defendant created the conflict, either through plans to commit perjury, disagreement over decisions committed to the judgment of the attorney and not the client, or refusal to cooperate with counsel, then such conflict is insufficient to serve as an "irreconcilable conflict." See Nix, 475 U.S. at 176, 106 S.Ct. 988; Morris, 461 U.S. at 13-14, 103 S.Ct. 1610; Schell, 218 F.3d at 1026.

I turn now to the Nevada Supreme Court's decision to determine whether that court unreasonably applied clearly established federal law as determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1).

C. The Nevada Supreme Court's Decision

The majority sets forth the Nevada Supreme Court's opinion rejecting Plumlee's "irreconcilable conflict" claim. Two sentences of that court's opinion are key: the court stated "[a] defendant's refusal to cooperate with appointed counsel is no basis for a claim of inadequate representation," and then concluded that Plumlee "never showed adequate cause justifying appointment of new counsel, and the court below did not abuse its discretion in refusing to do so." (ER124.)

The Nevada Supreme Court's conclusion is supported by the record and was a reasonable application of clearly established federal law. As noted in Section I, Plumlee offered multiple unsupported allegations of conspiracy and impropriety by the Public Defender, but the Nevada Supreme Court found those allegations inadequate to afford relief. The Nevada Supreme Court could reasonably determine from the record that (1) Plumlee refused to cooperate with his attorneys beyond denying guilt; (2) Plumlee lied to his attorneys, repeatedly changing his defense theory as each new theory proved inconsistent with the trial evidence; and (3) Gregory had ethical reservations about Plumlee possibly perjuring himself in court. As noted supra, such client-generated "conflicts" do not rise to the level of an "irreconcilable conflict."

Both Morris and Schell support this conclusion. In Morris, a pre-AEDPA case, the U.S. Supreme Court rejected the petitioner's "irreconcilable conflict" claim on the basis the facts did not support relief. 461 U.S. at 4, 103 S.Ct. 1610. The defendant complained to the trial court regarding his counsel's level of preparation; refused to cooperate with counsel; stated that his counsel told him he had no defense for his charges; interrupted the proceedings to argue his right to counsel was being infringed; and communication between the petitioner and counsel broke down to such a point that counsel moved to be relieved by the court because he could not render effective assistance account the conflict. Id. at 5-9, 103 S.Ct. 1610; see Slappy, 649 F.2d at 719, rev'd sub nom. Morris, 461 U.S. at 1, 103 S.Ct. 1610.

On other hand, in Schell, we determined the petitioner was entitled to an evidentiary hearing because if the facts he alleged were true, he would be entitled to habeas relief under the pre-AEDPA standard of review. 218 F.3d at 1027. The petitioner alleged a dispute arose with counsel over the only evidence in the prosecution's case to link him with the crime; the dispute became so hostile communications broke down between counsel, the petitioner, and the petitioner's family; and counsel told the petitioner "she would not waste government money on a fingerprint expert, and that [the petitioner] should not waste the court's time or money on a trial and should accept the plea bargain." Id. at 1026-27. We considered that statement by counsel "tantamount to telling [the petitioner] that [counsel] would neither investigate his case nor defend him unless he pleaded guilty." Id.

In comparison, Plumlee's proof falls woefully short. Plumlee never established the Public Defender attorneys violated attorney-client confidentiality, conspired with the District Attorney to destroy evidence, or refused to investigate the case or defend Plumlee unless he pleaded guilty. Further, the record strongly suggests Plumlee's refusal to cooperate with his counsel caused the conflict with Gregory and the Public Defender, leading Gregory to move to be relieved by the court because he could not render effective assistance account the conflict. Yet the same event occurred in Morris, but recognizing counsel's request to withdraw was caused by the petitioner's bad faith, the U.S. Supreme Court rejected an "irreconcilable conflict" claim on that basis. See Morris, 461 U.S. at 13-14, 103 S.Ct. 1610; Schell, 218 F.3d at 1026 (stating that if "the conflict was of [the defendant's] own making," a claim of "irreconcilable conflict" cannot lie).

Moreover, Plumlee's habit of lying to his attorneys, and Gregory's resulting "ethical reservation" which arose from the risk of Plumlee lying under oath, did not deny Plumlee his Sixth Amendment right to adequate representation. Nix disposed of such a notion in holding that a defendant's consideration to commit perjury, and his counsel's refusal to suborn perjury, do not create a sufficient conflict to implicate the defendant's Sixth Amendment rights. 475 U.S. at 176, 106 S.Ct. 988.

It cannot be said that because Plumlee claimed some conflict with his attorney, even a claim with which Gregory concurred in his plea to be relieved, that alone requires appointment of counsel outside of the Public Defender at taxpayer expense. Just as a defendant has no Sixth Amendment right to a "meaningful relationship" with his court-appointed counsel, see Morris, 461 U.S. at 13-14, 103 S.Ct. 1610, he has no right to be shielded from differences with his counsel at public expense, so long as the professional services rendered by the attorney are adequate. See Wheat, 486 U.S. at 159, 108 S.Ct. 1692; Cronic, 466 U.S. at 657, 104 S.Ct. 2039. Especially is this so when the conflict between a defendant and counsel can only be found with reason, and as the state court did, on Plumlee's refusal to cooperate and planned perjury.

The Nevada Supreme Court's decision that Plumlee "never showed adequate cause justifying appointment of new counsel, and the court below did not abuse its discretion in refusing to do so," was not an unreasonable application of clearly-established federal law. Having failed to meet the AEDPA standard, Plumlee is not entitled to habeas relief.

D. The Defects in the Majority's Rule

Nonetheless, in a radical expansion of the "irreconcilable conflict" doctrine, the majority constructs a rule that such a conflict exists when a defendant has an "objectively reasonable belief that his counsel cannot effectively represent him, even if the "reason" for such an "objectively reasonable belief is wholly based on the defendant's story, contradicted by sworn testimony. See Majority op. at 921. This rudderless, subjective standard is unsupported by precedent from the U.S. Supreme Court precedent, our court, or other circuit courts.

None of the three U.S. Supreme Court cases cited by the majority — Cronic, Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) — recognize the "irreconcilable conflict" doctrine, nor do they support the majority's "objectively reasonable belief rule. Indeed, Cronic emphasized that effective assistance of counsel is not measured by the amount of time counsel has to prepare, or the level of counsel's experience, but instead by his actual performance during the representation. 466 U.S. at 661-62, 104 S.Ct. 2039. Tellingly, the Court stated: "If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance." Id. at 659 n. 21, 104 S.Ct. 2039 (emphasis added).

Entsminger and Anders are also inapposite. Entsminger overturned the state court's affirmance of the defendant's appeal where his counsel, believing the appeal to be without merit, failed to file the full record from the trial court, and the state supreme court then affirmed using only a skeletal record. 386 U.S. at 749-50, 87 S.Ct. 1402. The Court held such process denied the defendant the benefit of an appeal on the full record, and by such action the court denied "all hope of any adequate and effective appeal at all." Id. at 752, 87 S.Ct. 1402 (internal alterations omitted). Similarly, Anders disapproved of a state court procedure which allowed a defendant's counsel to withdraw from representation and abandon the defendant's appeal if the counsel concluded the appeal had no merit. 386 U.S. at 741-42, 87 S.Ct. 1396. Those two latter cases have nothing to do with an "irreconcilable conflict" between a defendant and his counsel.

Further, the circuit court cases cited by the majority involve "irreconcilable conflicts" based upon specific, objective evidence of a conflict with counsel — conflicts not caused by the defendant — which would diminish the effectiveness of counsel's representation. See, e.g., United States v. Moore, 159 F.3d 1154, 1159 (9th Cir.1998) (in a direct appeal case, holding an "irreconcilable conflict" existed where counsel failed to communicate important information to the defendant, failed to investigate the case or prepare for trial, and where the defendant threatened to sue counsel for malpractice and the defendant felt physically threatened by counsel); United States v. Mullen, 32 F.3d 891, 893, 897 (4th Cir.1994) (in a direct appeal case, holding an "irreconcilable conflict" existed where counsel would not permit the defendant to see any of the discovery materials, refused to answer the defendant's questions, and used "a tone of voice emulating force and threats" toward the defendant); Smith v. Lockhart, 923 F.2d 1314, 1317-18 (8th Cir. 1991) (in a pre-AEDPA habeas case, holding an "irreconcilable conflict" existed where the petitioner was a named plaintiff in a federal class action suit, and counsel was a named defendant in the same suit); Wilson v. Mintzes, 761 F.2d 275, 281-S2 (6th Cir.1985) (in a pre-AEDPA habeas case, holding an "irreconcilable conflict" existed where counsel attempted to withdraw from the case in mid-trial in front of the jury, and then refused to cross-examine a witness when his motion to withdraw was denied); United States v. Williams, 594 F.2d 1258, 1260 (9th Cir.1979) (in a direct appeal case, holding an "irreconcilable conflict" existed in an attorney-client relationship described as "a stormy one with quarrels, bad language, threats, and counter-threats."); Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir.1970) (in a pre-AEDPA habeas case, holding an "irreconcilable conflict" existed where severe disagreements erupted between the petitioner and counsel based on counsel's failure to interview witnesses or properly investigate the case, and exacerbated by the trial court's failure to inquire into the extent of the conflict).

Recognizing that Plumlee's "irreconcilable conflict" claim is based on coincidence and conjecture, the majority makes the remarkable suggestion that it does not matter whether Plumlee's suspicions about his Public Defender attorneys were "actually based on fact. We make no such contention. Rather, we conclude only that Plumlee's suspicions were objectively reasonable." Majority op. at 923 (emphasis in original). Hence, if a petitioner has "objectively reasonable" suspicions, as found by this court on appeal from the district court's denial of a petition for a writ of habeas corpus, we should reverse the district court and remand for a grant of the petition.

I see two things wrong with the majority's statement. First, the majority's "objectively reasonable belief rule converts the traditional burden of proof under AEDPA, which rests upon the petitioner, to one of a non-movant's successful defense of a motion for summary judgment. Rather than having to convince the court that his suspicions of betrayal by his attorneys were true, all the petitioner has to do is present some evidence to show he had some facts upon which he can claim his suspicions were "objectively reasonable." Here, the majority allows some "objectively reasonable" evidence to carry the day for Plumlee, regardless that the other evidence introduced controverted all of Plumlee's claims. The majority sets our standard of review upon its head — it is a 180-degree reversal of the traditional burden of proof.

Second, the majority's analysis eviscerates 28 U.S.C. § 2254(d). AEDPA does not give us the authority to determine anew whether Plumlee's tale of feelings of betrayal is based on actual fact. That fact-finding task is allocated to the Nevada courts, which evaluated the witnesses and reached their own conclusion as to the merits of Plumlee's "irreconcilable conflict" claim. Our task — and our only task — is to determine whether the Nevada courts made an unreasonable determination of the facts in finding there had been no betrayal of Plumlee by his Public Defender attorneys, see id. § 2254(d)(2), or unreasonably applied clearly-established federal law in holding no "irreconcilable conflict" deprived Plumlee of his Sixth Amendment right to counsel, see id. § 2254(d)(1). It is the majority's arrogation of fact-finding power to this court, and its improper second-guessing of the Nevada Supreme Court's legal conclusion, that underlies the majority's erroneous holding. See Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (stating AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law.").

Indeed, the majority itself gives away its game in the last pages of their opinion. The majority states: "The dissent also mischaracterizes our opinion as suggesting that a defendant's beliefs alone entitle him to new counsel. We have said nothing of the kind. What entitled Plumlee to new counsel was not the fact of Plumlee's suspicions themselves (however reasonable) but the irreconcilable conflict these suspicions engendered." Majority op. at 924.

But if Plumlee's suspicions were found to be objectively baseless, as found by the Nevada courts, how can they then validly engender irreconcilable conflicts? For example, if Plumlee's suspicions were that his Public Defender attorneys were secretly married to the prosecutors — a palpably false assertion — would those suspicions engender irreconcilable conflicts? And if the public defenders did not in fact betray Plumlee, what then, other than Plumlee's jailhouse fantasies, "engendered" the alleged irreconcilable conflicts? Put another way, if there is no sound, how can it produce an echo?

Despite the majority's assertion that they "cannot imagine that the extraordinary circumstances present here . . . will often, if ever, be replicated," Majority op. at 924, the majority's creation of a new and exceptionally broad Sixth Amendment rule bodes ill for our criminal justice system. According to the majority's opinion, where the petitioner has made claims of defense counsel disloyalty, a federal court must grant a writ of habeas corpus if the court finds some rational basis for such claims, regardless whether the state courts heard the same evidence and rejected it as untrustworthy or overcome by other evidence, and did so reasonably and within the confines of 28 U.S.C. § 2254(d)(1)-(2).

I have little doubt that the impact of such a rule, if left unchanged, will have serious repercussions. It will encourage criminal defendants to imagine a slew of conspiracies between their appointed counsel, the prosecution, or even the trial courts, and then raise those suspicions under the label "objectively reasonable belief — no matter how baseless, uncorroborated, or contradicted by evidence — in motions to substitute, interruptions during trial, and of course, briefs on appeal. It will encourage defendants to engage in contumacious behavior toward appointed counsel in the hope counsel might respond in anger or even better, seek to withdraw. Once the defendant develops such a record (hopefully embellished by a motion to withdraw by frustrated counsel), it will not matter if the defendant loses at trial and on state appeal. He will still have a pair of dice to throw at the reasonable belief table in the Ninth Circuit.

III. Conclusion

Of course, under the majority's decision, the Nevada courts may retry Plumlee and seek a new conviction. Yet after thirteen years, memories fade, evidence grows cold, and witnesses disappear. The majority releases Plumlee — thirteen years into his two life sentences without possibility of parole — by refusing to follow congressional command and by fashioning a new, un-workable rule which raises to constitutional dimensions a defendant's unfounded suspicions and refusal to cooperate with his appointed attorneys. I cannot agree with such an unsupported decision. Accordingly, with respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent.