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Clarence Henry Dixon v. James A. Yates

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 12, 2011

CLARENCE HENRY DIXON, PETITIONER,
v.
JAMES A. YATES,
RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

RE: MOTION AT DOCKET NO. 39

ORDER

Construing Dixon's motion at Docket No. 39 liberally, this Court decided to treat the motion as a Motion to Reconsider this Court's Memorandum Decision, filed pursuant to Federal Rule of Civil Procedure 59(e).*fn1 Dixon has filed his affidavit detailing his dispute with counsel and the nature of the threats made by counsel.*fn2 Dixon claims that his counsel, John Panerio, acted improperly by informing Dixon that he may not be able to continue to represent Dixon if Dixon continued to speak badly about Panerio's private investigator. Dixon next claims that Panerio tried to persuade Dixon not to testify because he is a "black male" who had a "drug problem."

Neither of these statements constitute threats and certainly do not rise to the level of creating an irreconcilable conflict such that Dixon was denied his Sixth Amendment right to counsel.*fn3 In fact, Panerio seemed concerned about Dixon's conflict with his private investigator and informed Dixon that if the conflict escalated it might affect his ability to represent Dixon. Panerio's statement concerning Dixon's race and drug problem were also not threats. Rather, it is apparent that Panerio was concerned that the jury would not find Dixon credible and was advising him not to testify. Informing a client of the possible or likely consequences of his or her decision to testify does not constitute a threat.

The record in this case reveals that the conflict, to the extent it existed, was not so great that it had resulted in a total lack of communication preventing an adequate defense.*fn4 The "conflict" was principally a disagreement over tactics, which normally does not support substitution of a new attorney.*fn5

Since it is clear from his affidavit that Dixon is not entitled to relief, there is no need to hold an evidentiary hearing. Dixon's Motion for Reconsideration at Docket No. 39 is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn6


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