                                                        133 Nev., Advance Opinion {GS
                          IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                     BRANDON MONTANE JEFFERSON,                           No. 70732
                     Appellant,
                     vs.
                     THE STATE OF NEVADA,
                                                                              FILE
                     Respondent.



                                                                                   --
                                Brandon Montane Jefferson appeals from a district court order
                    denying his postconviction petition for a writ of habeas corpus. Eighth
                    Judicial District Court, Clark County; Kerry Louise Earley, Judge.
                               Affirmed.


                    Nguyen & Lay and Matthew Lay, Las Vegas,
                    for Appellant.

                    Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                    District Attorney, and Krista D. Barrie, Chief Deputy District Attorney,
                    Clark County,
                    for Respondent.




                    BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

                                                    OPINION

                    By the Court, TAO, J.:
                               Shortly before his criminal trial was originally scheduled to
                    begin, appellant Brandon Jefferson filed a complaint against his court-
                    appointed defense attorney with the State Bar of Nevada. In this appeal


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                      from the denial of a postconviction petition for a writ of habeas corpus, he
                      contends that the filing of the bar complaint created a per se actual conflict
                      of interest that rendered trial counsel constitutionally ineffective under the
                      Sixth Amendment which, if true, would give rise to a presumption that the
                      conflict prejudiced the outcome of his trial. We disagree and affirm the
                      denial of his postconviction petition.
                                        FACTUAL AND PROCEDURAL HISTORY
                                     Jefferson was convicted by a jury of three counts (out of six
                      counts originally charged) of sexual assault of a minor under the age
                      fourteen and one (out of five) counts of lewdness with a minor under the age
                      of fourteen.
                                     Days before his original trial date, Jefferson sent a letter to the
                      State Bar of Nevada alleging that he was "having a bit of an issue with" one
                      of the two deputy public defenders assigned to represent him The letter
                      explained that counsel "lightly' verbally abuses" Jefferson, "ignores [his]
                      outlook," and once purportedly stated that "people like you belong in hell
                      not prison." The Bar forwarded a copy of the letter to counsel with a request
                      that he provide a written response.
                                     The day after sending his letter to the Bar, Jefferson also filed
                      a motion with the district court requesting that the court dismiss his
                      current counsel and appoint alternate counsel. The written motion recited
                      a laundry list of things that counsel allegedly refused to do to prepare for
                      trial: communicate with him meaningfully or at length, thoroughly
                      investigate a potential alibi defense, tell him the truth about the status of
                      the case, give him copies of discovery obtained from the State, seek an
                      acceptable plea bargain negotiation on his behalf, file enough motions on
                      his behalf, and generally work hard enough. The motion did not reference
                      the bar complaint that had been sent the previous day. During a hearing
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                   on his motion to dismiss counsel, Jefferson verbally narrowed his litany of
                   grievances down to complaining that counsel had not given him all of the
                   discovery procured from the State, and had failed to investigate a potential
                   alibi defense based upon his having been at work during some of the
                   charged crimes. Neither the district court nor Jefferson's counsel appeared
                   aware that a bar complaint had been filed the previous day, and Jefferson
                   did not mention it during the hearing. The district court denied his motion.
                               Jefferson's trial was subsequently postponed for unrelated
                   reasons and eventually began about a year after Jefferson sent his letter to
                   the Bar. During the lengthy delay, Jefferson did not again request that
                   counsel be replaced, and there is no indication in the record that his bar
                   complaint was referenced ever again either before or during trial.
                               Following his conviction, Jefferson filed a direct appeal to the
                   Nevada Supreme Court. Among the issues raised was that the district court
                   erred in denying his motion to dismiss counsel, but Jefferson did not
                   mention the bar complaint as a reason why the district court's decision was
                   erroneous. The court affirmed the judgment of conviction, concluding (in
                   relevant part) that the district court committed no error in denying the
                   motion to dismiss counsel:
                               [Ti he district court conducted an inquiry into
                               Jefferson's request. The court determined that
                               Jefferson was unhappy because he believed his
                               counsel had not provided to him everything
                               obtained through discovery, and his counsel had
                               not obtained his work records. Jefferson's attorney
                               explained that the work records were not relevant
                               and that leaving the records with a client in custody
                               is risky because nothing is private in jail; however,
                               he further expressed that he would provide
                               anything Jefferson requested up to that point. We
                               conclude that. . . the district court did not err in
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                                denying the motion. The district court's inquiry
                                demonstrates the conflict was minimal and could
                                easily be resolved. Furthermore, Jefferson's
                                request was untimely as it was made only a few
                                days prior to trial.
                   Jefferson v. State, Docket No. 62120 (Order of Affirmance, July 29, 2014).
                                After his direct appeal was denied, Jefferson filed a timely
                   petition for a writ of habeas corpus in the district court alleging that counsel
                   had performed ineffectively for a variety of reasons, including by remaining
                   as counsel despite an actual conflict of interest created once Jefferson filed
                   his complaint with the Bar. The district court denied relief on all grounds.
                   Jefferson now appeals from the denial of his postconviction petition. In this
                   appeal, Jefferson expressly abandons all of the arguments raised below
                   except that counsel was ineffective in continuing to represent him despite
                   what he characterizes as a conflict of interest created by the filing of the bar
                   complaint.
                                                    ANALYSIS
                                The Sixth Amendment to the United States Constitution
                   guarantees to every criminal defendant a right to the effective assistance of
                   counsel. See Strickland v. Washington, 466 U.S. 668 (1984); Warden v.
                   Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Normally, to state a claim of
                   ineffective assistance of counsel sufficient to invalidate a judgment of
                   conviction, a petitioner must satisfy a two-prong test: he must demonstrate
                   that counsel's performance was deficient and that the deficiency prejudiced
                   him. Strickland, 466 U.S. at 687. The petitioner must demonstrate the
                   underlying facts by a preponderance of the evidence. Means v. State, 120
                   Nev. 1001, 1012, 103 P.3d 25, 33 (2004).
                                When a petitioner alleges that counsel has been ineffective, he
                   is entitled to an evidentiary hearing only if he has "assert [edi specific
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                   factual allegations that are not belied or repelled by the record and that, if
                   true, would entitle him to relief." Nika v. State, 124 Nev. 1272, 1300-01,
                   198 P.3d 839, 858 (2008). On appeal, we give deference to the district court's
                   factual findings if supported by substantial evidence and not clearly
                   erroneous but review the court's application of the law to those facts de
                   novo. See Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
                                The right to effective assistance of counsel includes the right to
                   assistance "unhindered by conflicting interests." Clark v. State, 108 Nev.
                   324, 326, 831 P.2d 1374, 1376(1992) (citing Holloway v. Arkansas, 435 U.S.
                   475 (1978)). A conflict of interest arises when counsel's "loyalty to, or efforts
                   on behalf of, a client are threatened by his responsibilities to another client
                   or a third person or by his own interests." People v. Horton, 906 P.2d 478,
                   501 (Cal. 1995) (internal quotation marks omitted); see also RPC 1.7(a);
                   Clark, 108 Nev. at 326, 831 P.2d at 1376. When a defendant demonstrates
                   that counsel was rendered ineffective because of lain actual conflict of
                   interest which adversely affects [the] lawyer's performance," prejudice is
                   presumed and the defendant is relieved of the obligation to independently
                   prove its existence. Clark, 108 Nev. at 326, 831 P.2d at 1376 (citing Cuyler
                   v. Sullivan, 446 U.S. 335 (1980)). Whether a conflict exists is a mixed
                   question of fact and law reviewed on appeal de novo, see Cuyler, 446 U.S. at
                   342, and "must be evaluated on the specific facts of each case," Clark, 108
                   Nev. at 326, 831 P.2d at 1376.
                               Below, Jefferson did not assert that his counsel did anything in
                   response to the filing of the bar complaint that would independently entitle
                   Jefferson to relief. Nor did Jefferson contend that his bar complaint led to
                   the imposition of any discipline upon his attorney that rendered his counsel
                   ineffective. Consequently, Jefferson's contention was not that the

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                   complaint happened to trigger a chain of events that ended up producing an
                   irreconcilable conflict between him and his attorney, but rather that the
                   filing of the complaint, by itself, created an actual conflict without anything
                   more happening.
                               Thus, Jefferson would have been entitled to relief only if, as a
                   matter of law, the mere filing of his bar complaint created a per se conflict
                   of interest rising to the level of a violation of the Sixth Amendment. The
                   closest the Nevada Supreme Court has come to addressing this situation is
                   in Clark v. State, 108 Nev. at 326, 831 P.2d at 1376. In Clark, the Nevada
                   Supreme Court recognized that a constitutional violation could occur when
                   a defense attorney filed a civil suit seeking monetary damages against his
                   own client during the course of defending him against murder charges. Id.
                   The court reasoned that the filing of the civil suit could have created an
                   adverse financial interest that might have led counsel to be more
                   conservative in handling the criminal case than he otherwise might have
                   been. Although the attorney might have earnestly believed that his
                   judgment was not compromised, "some attorneys might conclude that there
                   is less incentive to interpose every available defense [in the criminal case],
                   as an incarcerated client would be less apt to vigorously oppose an entry of
                   default and subsequent enforcement of the civil judgment." Id. at 327, 831
                   P.2d at 1376. Thus, the court emphasized that attorneys should avoid
                   entangling themselves in financial conflicts that might create "economic
                   pressure" that could "adversely affect the manner in which at least some
                   cases are conducted."    Id. at 327, 831 P.2d at 1377 (quoting Jewell v.
                   Maynard, 383 S.E.2d 536,544 (W. Va. 1989)).
                               But the filing of a bar complaint by a defendant against his
                   counsel differs from Clark in important ways. As an initial observation, the

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                   conflict of interest in Clark was created by the self-interested actions of the
                   attorney in suing his client. More importantly, unlike a civil suit for money
                   damages, the filing of a bar complaint does not initiate head-to-head
                   litigation between the attorney and client that could result in a collectible
                   money judgment in favor of one party or another. Rather, a bar complaint
                   is a request that the Bar conduct its own independent investigation of the
                   attorney's behavior and impose appropriate disciplinary measures
                   (frequently nonfinancial) against the attorney.     See generally State Bar of
                   Nevada, Disciplinary Rules of Procedure (2017); see also State Bar of
                   Nevada, Ethics and Discipline, https ://www.nvbar.org/member-services-
                   3895/ethics-discipline! (last visited August 11, 2017). Even where a Bar
                   disciplinary action includes some kind of monetary fine or penalty, the fine
                   would not be enforced by the client through adversary collection measures
                   as in a civil suit, but rather would be enforced by the Bar itself. See State
                   Bar, Ethics and Discipline, supra ("All investigations of possible attorney
                   misconduct are conducted through the Office of Bar Counsel. In matters
                   that warrant disciplinary action, bar counsel then prosecutes all
                   disciplinary proceedings."). Therefore, we conclude Clark does not govern
                   the outcome of the issue presented to this court.
                               Although the Nevada Supreme Court has not yet addressed this
                   specific question, other courts have held, virtually unanimously, that the
                   mere filing of a bar complaint against counsel does not automatically create
                   a conflict of interest. See State v. Michael, 778 P.2d 1278, 1280 (Ariz. Ct.
                   App. 1989) ("This defendant has not demonstrated any adverse effect from
                   any alleged conflict of interest created when he filed a bar complaint against
                   [his attorney]. Our review of the record finds none."); Gaines v. State, 706
                   So. 2d 47, 49 (Fla. Dist. Ct. App. 1998) ("Furthermore, the filing of a bar

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                   complaint against the Office of the Public Defender does not automatically
                   create a conflict of interest requiring the appointment of substitute
                   counsel."); Holsey v. State, 661 S.E.2d 621, 626 (Ga. Ct. App. 2008)
                   ("Specifically, Holsey argues that trial counsel should have withdrawn as
                   his counsel after learning that Holsey had filed a bar complaint against him
                   based on his dissatisfaction with his representation. We disagree. . . . A
                   theoretical or speculative conflict will not impugn a conviction which is
                   supported by competent evidence." (internal quotation marks omitted)).
                               We agree with the weight of authority and hold that, as a
                   matter of law, the mere filing of a bar complaint by a defendant against his
                   attorney does not create a per se conflict of interest rising to the level of a
                   violation of the Sixth Amendment. The filing of a bar complaint ought not
                   become a routine method of forcing a change in appointed counsel after a
                   district court motion has failed, or of obtaining postconviction relief on
                   manufactured or hypothetical premises, when no actual conflict of interest
                   otherwise existed.
                               When an alleged conflict is initiated by the actions of a
                   defendant, courts are, and ought to be, more suspicious about concluding
                   that a constitutional violation has occurred than when the actions were
                   initiated by the attorney. See Carter v. Armontrout, 929 F.2d 1294, 1300
                   (8th Cir. 1991) ("[A] pending lawsuit between a defendant and his attorney
                   may give rise to a conflict of interest. . . . However, a defendant who files a
                   lawsuit against his attorney does not necessarily create such a conflict.").
                   In those cases, courts should be wary of the possibility that the defendant
                   may be attempting to either manufacture a way to replace counsel or delay
                   the prosecution of the case, or both. As stated by another court in denying
                   a pretrial motion to disqualify appointed counsel based upon a lawsuit the

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                   client filed against his counsel, "a criminal defendant's decision to file such
                   an action against appointed counsel does not require disqualification unless
                   the circumstances demonstrate an actual conflict of interest."     Horton, 906
                   P.2d at 501; see also Smith v. Lockhart, 923 F.2d 1314, 1321 n.11 (8th Cir.
                   1991) ("We recognize the danger of any holding implying that defendants
                   can manufacture conflicts of interest by initiating lawsuits against their
                   attorneys.").
                                                       CONCLUSION
                                   Because we hold the filing of a bar complaint does not create a
                   per se conflict of interest that rises to the level of a violation of the Sixth
                   Amendment, and Jefferson did not assert that the filing of the bar complaint
                   adversely affected his counsel's behavior or caused his counsel to defend him
                   less diligently, he did not present a conflict-of-interest claim that would
                   entitle him to relief The district court therefore did not err by denying his
                   claim without conducting an evidentiary hearing. Accordingly, we affirm
                   the district court order denying Jefferson's postconviction petition for a writ
                   of habeas corpus.



                                                                     Ast,'               J.
                                                             Tao


                   We concur:



                                                   ,    CA.
                   Silver


                                                        J.
                   Gibbons
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