01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PARAMJIT SINGH DHALIWAL,

Petitioner,

v.

KENNETH QUINN,

Respondent.

____________________________________

)

)

)

)

)

)

)

)

)

)

Case No. 06-0211-RSL-JPD

ORDER REGARDING MIXED

28 U.S.C. § 2254 PETITION 

I. INTRODUCTION AND SUMMARY CONCLUSION

The Sixth Amendment right to counsel exists to protect the fundamental right to a fair

trial. A fair trial cannot exist, and the Sixth Amendment’s promise becomes empty rhetoric,

without reasonably effective assistance of counsel. Accordingly, the Constitution demands

undivided respect for the duty of loyalty and the duty to avoid conflicts of interest—“perhaps

the most basic of counsel’s duties.” Strickland v. Washington, 466 U.S. 668, 692 (1984). The

numerous conflicts of a former defense counsel in the present case challenge these

fundamental duties. This matter comes before the Court on petitioner’s 28 U.S.C. § 2254

petition for writ of habeas corpus. Respondent has filed an answer opposing the petition, to

which petitioner has replied. After additional discovery, motions for summary judgment

were filed by both parties. After careful consideration of the petition, motions, briefs,

governing law, and the balance of the record, the Court FINDS that petitioner has presented a

mixed petition and ORDERS that he select the method of proceeding in this case, as detailed

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 1 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 2

below. 

II. FACTS AND PROCEDURAL HISTORY

In December 1999, petitioner Paramjit Singh Dhaliwal found himself at the center of

an intense and violent struggle among the taxicab drivers of the Farwest Cab Company

(“Farwest”). Petitioner is a member of the Sikh religious community from Punjab, India. He

was also a supporter of the Sikh traditionalist party and Farwest’s 1999 Board of Directors

(“1999 Board”). Until the events in question, he was employed by Farwest as a taxicab driver

and was a member of Farwest’s grievance committee. Based in part on the recommendation of

that committee, the 1999 Board instituted a variety of controversial employment decisions and

other changes at Farwest that caused a deep division between certain employees who

supported the 1999 Board and certain others who supported Farwest’s prior leadership. 

On the morning of December 28, 1999, petitioner and another driver, Harbhajan Singh,

allegedly assaulted a fellow Farwest employee who opposed the 1999 Board. Later that day,

Jasbir Bassi and several other Farwest drivers opposed to the 1999 Board met to discuss how

to respond to the incident. During this meeting, the group noticed petitioner drive by in his

cab. They gave chase in an unmarked car, following petitioner to the Westin Hotel in

Downtown Seattle, where he dropped off his fare. When petitioner realized he was being

followed, he telephoned several of his friends, including Gurinder Grewal, who was waiting at

the Westin Hotel in his cab when petitioner’s and Bassi’s cars arrived. Shortly after pulling

away from the Westin Hotel, petitioner stopped at a red light. Bassi then got out of the

unmarked car, approached petitioner, and began screaming and banging on petitioner’s cab. In

response, petitioner rolled down his window and shot Bassi with a gun he had purchased the

previous day. Bassi was unarmed. He returned to his car and said “I’ve been shot. He shot

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 2 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Docket No. 13 comprises the relevant state court record. For materials taken from

the state trial proceedings, the Court will cite the pertinent date, followed by the corresponding

transcript page of the record (“R.”). 

2

 For a detailed summary of Salazar’s concurrent representation, see Dkt. No. 32,

Cassandra Stamm Dec. at 3-12, and Dkt. No. 13, Ex. 12, app. B.

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 3

me. Call 911. Call the police.” Dkt. No. 13, Ex. 3 at 3.1 At that moment, petitioner got out

of his cab and fired several more shots toward the tires of the unmarked vehicle or at Bassi and

the other men. Bassi died from his wounds two days later. 

Both petitioner and Grewal fled the scene. Grewal was quickly detained, however, and

gave the police a statement in which he claimed that petitioner had received death threats and

that the men following petitioner had been armed. Petitioner remained a fugitive for several

months before turning himself in. He was released on bail pending trial. Upon release, he

moved into the home of his friend, Gurinder Grewal. At some point during or after this stay,

their friendship deteriorated. At trial, Grewal testified for the State, and recanted the

statements he had made to police on the day of the shooting. See 2/5/01 R. at 7-15, 63, 68,

98-99.

Petitioner was charged in King County Superior Court with the first degree murder and

carrying a concealed weapon. Dkt. No. 13, at 4-5. Petitioner argued that he had acted in selfdefense because he feared for his life when confronted by Bassi. At the time of petitioner’s

murder trial, petitioner’s defense counsel, Antonio Salazar, was concurrently representing no

fewer than eight witnesses in other matters: Gurinder Grewal, Dhanoa Mohinder, Gurcharan

Saidpur (a/k/a Gurcharan Singh Dhaliwal), Harbans Sidhu, Harbhajan Singh, Harinderbir

Singh, Mohinder Singh, and Resham Singh.2

 At petitioner’s trial, Gurinder Grewal testified

for the prosecution, while the remaining seven witnesses testified for the defense. 

At the time of petitioner’s trial, Salazar was simultaneously representing at least three

such witnesses—but notably, not petitioner—in a wrongful death suit filed by the Bassi

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 3 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 This included Harinderbir Singh, Harbhajan Singh, and Gurchuran Singh Saidpur. See

Estate of Jasbir Bassi, et al. v. Paramjit Dhaliwal, et al., King County Sup. Ct., Case No. 00-

2-06554-0-SEA; Dkt. No. 32, Harbinger Singh Dec. ¶ 4.

4

 The state court record in this case confirms that shortly after petitioner was convicted

of first degree murder, Salazar filed a motion for summary judgment on behalf of the abovementioned clients. Dkt. No. 13, Ex. 10, at 12-13; Cassandra Stamm Dec. ¶ 14, app. F(1) at 4,

F(5)-(10). That summary judgment brief stated, in part, as follows: “Defendant Paramjit

Dhaliwal shot and killed the decedent on December 28, 1999. A jury convicted Mr. Dhaliwal

of first degree murder.” Id. app. F(7) at 2. Specifically, the brief and supporting materials

argued that Salazar’s other clients could not be held civilly liable because they were not aware

that petitioner possessed a gun and had no reason to believe that petitioner would kill Bassi

when Bassi attempted to stop and talk to petitioner on December 28, 1999. Id. app. F(1) at 4,

app. F(11); see also Dkt. No. 32, Affidavit of Harbinger Singh in Support of Motion for

Summary Judgment at 2-4.

5

 Specifically, defense counsel represented Gurcharan Saidpur, Harbhajan Singh,

Harbans Sidhu, Mohinder Singh, and Resham Singh in the civil suit against Farwest. Dkt. No.

13, Ex. 3 at 4; Ex. 15 at 56; see also id. Ex. 12, app. B.

6

 Petitioner’s defense counsel had previously represented Harbhajan Singh and

Gurinder Grewal in a felony assault case in which petitioner was a codefendant. See State v.

Singh, et al., King County Sup. Ct., Case Nos. 98-1-09253-6-SEA, 98-1-09252-8-SEA, and

98-1-09251-0-SEA. All charges were eventually dropped. Dkt. No. 13, Ex. 3 at 4. 

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 4

family as a result of the shooting. See Estate of Bassi, et al. v. Dhaliwal, et al., King County

Sup. Ct., Case No. 00-2-06554-0-SEA.3

 Indeed, petitioner’s eventual criminal conviction

was used by Salazar in his motion for summary judgment in that case.4 He was also

simultaneously representing several trial witnesses in a shareholder action against Farwest,

who were contesting their termination and/or discipline by the 2000 Board of Directors. See

Sidhu, et al. v. Seattle Farwest Serv. Corp., et al., King County Sup. Ct., Case No. 00-2-

19279-7-SEA.5 Salazar had also previously represented Grewal, a key prosecution witness,

in a criminal matter for which petitioner was also charged,6 and continues to represent

Grewal’s construction and investment companies. Dkt. No. 32, Grewal Dep. at 6-9. In fact,

according to Grewal, Salazar is currently representing Grewal’s investment company, Pacific

Homes, in a pending civil case in state court. Id. at 8. Because the conflict regarding Grewal

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 4 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

 See Discipline Notice, WASHINGTON STATE BAR ASS’N, Jan. 12, 2004, available at

http://pro.wsba.org/PublicView-Discipline.asp?Usr_Discipline_ID=591. This disciplinary

report constitutes a public record of a state agency, the facts of which this Court may take

judicial notice. Fed. R. Evid. 201; see also Wilbur v. Locke, 423 F.3d 1101, 1112 (9th Cir.

2005). 

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 5

was apparent to Salazar, he had his co-counsel, Armando Cobos, perform the crossexamination of Grewal at petitioner’s trial. Washington State Bar Records indicate that Mr.

Cobos has since lost his license to practice law, due to conflict-of-interest problems, among

other ethical violations.7

Prior to trial, the prosecutor moved the court to determine whether a conflict of

interest existed regarding defense counsel’s representation of certain of the above-mentioned

witnesses. Dkt. No. 13, Ex. 8 at 5; Ex 15 at 57-59. While doing so, the prosecutor noted, for

example, that “the shareholder lawsuit . . . directly relates to the conflict between the two

factions within the company that in many respects is at the heart of the motive behind the

shooting in the case.” Dkt. No. 13, Ex. 15 at 58. No mention was made of the wrongful

death case. The trial court conducted a very brief inquiry into the potential conflicts, but

ultimately accepted defense counsel’s representation that there were none. Dkt. No. 13, Ex. 8

at 5; Ex 15 at 58. The court explained the issue to petitioner and accepted his statement that

he wanted to continue representation with the same lawyer. Dkt. No. 13, Ex. 8 at 5; Ex 15 at

58. At no point did petitioner object to representation by defense counsel. 

On February 15, 2001, a jury found petitioner guilty of first degree murder with a

firearm enhancement. Dkt. No. 13, Ex. 2. On March 30, 2001, he was sentenced to 300

months. Dkt. No. 13, Ex. 1. Petitioner is presently incarcerated at the Monroe Correctional

Complex in Monroe, Washington, pursuant to that conviction. Dkt. No. 1.

A. Direct Review

Proceeding through counsel, petitioner appealed his conviction to Division I of the

Washington Court of Appeals (“Court of Appeals”). Dkt. No. 13, Ex. 2. While petitioner

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 5 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

 This included two ineffective assistance of counsel claims and a claim of prosecutorial

misconduct.

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 6

made three separate arguments on appeal,8

 his primary argument was that his Sixth

Amendment right to a conflict-free attorney was violated when the trial judge failed to

adequately inquire into his attorney’s potential conflicts of interest, including, but not limited

to, the prior and concurrent representation of critical witnesses for both the defense and the

prosecution. On September 3, 2002, the Court of Appeals published a decision affirming the

conviction. State v. Dhaliwal, 113 Wn.App. 226, 242, 53 P.3d 65 (2002). Although the

Court of Appeals agreed that the trial judge failed to conduct an adequate conflict-of-interest

inquiry, it found that petitioner had failed to show that the putative conflicts adversely

affected his attorney’s performance. Accordingly, the court determined that petitioner was

not entitled to a new trial, and upheld his conviction. Id. at 67. Petitioner subsequently

moved for reconsideration, which was denied by the Court of Appeals on October 10, 2002. 

Dkt. No. 13, Ex. 4, 5.

On December 3, 2002, petitioner filed a petition for review in the Washington

Supreme Court. Dkt. No. 13, Ex. 6. The Washington Supreme Court granted the petition for

review and on November 20, 2003, issued an en banc published decision affirming

petitioner’s conviction. State v. Dhaliwal, 150 Wn.2d 559, 581, 79 P.3d 432 (2003) (en

banc). The Washington Supreme Court issued its mandate on December 10, 2003. Dkt. No.

13, Ex. 9.

B. Collateral Review

On November 3, 2004, petitioner filed a personal restraint petition (“PRP”) with the

Court of Appeals. Dkt. No. 13, Ex. 10. The Court of Appeals, however, dismissed the PRP. 

Dkt. No. 13, Ex. 11. Petitioner challenged the dismissal by filing a motion for discretionary

review with the Washington Supreme Court, but on January 27, 2006, the Supreme Court

Commissioner issued a ruling denying review. Dkt. No. 13, Exs. 12, 13. On February 13,

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 6 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 7

2006, petitioner filed the present 28 U.S.C. § 2254 petition for writ of habeas corpus. Dkt.

No. 1. On May 17, 2006, respondent filed an answer to the petition, Dkt. No. 10, to which

petitioner replied on July 10, 2006. Dkt. No. 15. Due to the voluminous facts in this case

and difficulties obtaining discovery, the Court granted the parties’ motions to extend the

discovery period and dispositive motions deadline. Dkt. Nos. 24, 27, 35. Petitioner’s § 2254

petition, the parties’ dispositive motions, and the complete record in this case are now before

the Court.

III. ISSUES PRESENTED

Petitioner’s § 2254 petition raises three grounds for relief:

1. Defense counsel’s fee arrangement, and past and concurrent representation

of certain witnesses created conflicts of interest that violated petitioner’s

Sixth Amendment right to effective assistance of counsel;

2. Defense counsel’s failure to call certain witnesses, effectively crossexamine witnesses, and conduct a thorough pretrial investigation violated

petitioner’s Sixth Amendment right to effective assistance of counsel; and

3. The prosecuting attorney’s closing statements regarding the Sikh

community’s alleged violent tendencies amounted to prosecutorial

misconduct that violated petitioner’s right to a fair trial under the Fifth and

Sixth Amendments.

IV. DISCUSSION

A. Overview of Defense Counsel’s Conflicts of Interest

Petitioner’s trial and the record on direct and collateral appeal failed to unearth all of

Salazar’s conflicts of interest. The petitioner sought an evidentiary hearing on multiple

occasions throughout the state-court litigation, but those requests were denied. Since that

time, this Court has granted the parties additional discovery and, as a result, Salazar’s

numerous conflicts of interest have been exposed. Although the parties dispute whether those

conflicts adversely affected counsel’s performance or prejudiced petitioner’s defense, it is

largely undisputed that massive conflicts hovered over the state court litigation. Further

discovery permitted by this Court has revealed additional evidence regarding those conflicts

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 7 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

 Three of these witnesses—Harbans Sidhu, Harbinger Singh, and Mohinder

Singh—were clients of Salazar. 

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 8

that was not presented to, and/or not considered by, the Washington Court of Appeals or

Washington Supreme Court. The discovery produced in this habeas proceeding can be

summarized in part as follows:

1. Financial Conflicts, Conflicted Pretrial Investigation

Salazar took petitioner’s case on a flat fee basis. The evidence of record reveals no

discussion of a fee arrangement with petitioner. Instead, it appears that Saidpur paid Salazar

to represent petitioner, using monies collected from petitioner’s friends. Dkt. No. 32, G.

Dhaliwal Dec. ¶ 6-8. “One of the biggest contributors was Gurinder Grewal.” Id. at ¶ 6

(“Antonio Salazar knew that some of the money came from Gurinder Grewal because I told

him this.”); see also Dkt. No. 32, Kashmir Singh Sanduhu Dec. ¶ 11. This financial

arrangement may have severely impaired petitioner’s defense in several respects. It appears,

for example, that Salazar made sure not to incur costs when preparing petitioner’s case for

trial, because any out-of-pocket costs would have reduced the ultimate fee he would receive. 

Here, petitioner points to a grand total of $14.18 in costs incurred for a first-degree murder

trial, Dkt. No. 32, Salazar Dep. I, Ex. 5, possible only because Salazar failed to hire an

investigator, interpreter, or an assistant to locate witnesses and evidence relevant to

petitioner’s defense. Without an independent investigator, Salazar failed to recognize the need

to call or, if briefly called, thoroughly examine, several witnesses at trial, including at least five

persons who were poised to provide—based on their post-trial declarations—evidence

extremely favorable to petitioner’s defense: Bhupinder Dhillon, Kashmir Singh Sanduhu,

Harbans Singh Sidhu, Harbinger Singh, and Mohinder Singh. See, e.g., Dkt. No. 32,

Bhupinder Dhillon Dec. at 1-2; Kashmir Singh Sanduhu Dec. at 1-4; Harbinger Singh Dec. at

1-4; Mohinder Singh Dec. at 1-2; Cassandra Stamm Dec. at 8-9.9 Salazar’s recent deposition

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 8 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 9

reveals that he has almost no memory of who he interviewed while preparing petitioner’s

defense. 

2. Gurinder Grewal

Salazar’s connection to Gurinder Grewal presented a more substantial conflict of

interest in petitioner’s case. Grewal is not only a current client of Salazar’s, but was also

represented by Salazar in a 1998 criminal assault case, the facts of which were exploited by the

prosecution to undercut petitioner’s evidence of self-defense. When Salazar was initially

contacted regarding the present case, it was not to represent petitioner, but rather Grewal, who

was the person originally arrested for the shooting after he was seen fleeing the scene. See

Dkt. No. 32, G. Dhaliwal Dec. ¶ 3; 2/5/01 R. at 8.

At trial, Grewal contradicted nearly all his previous statements regarding the shooting

as well as the conflicts leading thereto. Specifically, Grewal recanted the statement that he had

made to police on the day of the shooting, and instead testified that petitioner “wanted to shoot

Mr. Bassi in his head,” had planned Bassi’s killing, boasted about it afterward, and had

pressured Grewal to lie to support his claim of self-defense. 2/5/01 R. at 7-30. When it came

time to cross-examine Grewal’s testimony, Salazar’s loyalties were conflicted. To resolve this

conflict, Salazar asked his co-counsel, Armando Cobos, to perform the cross.

During his recent deposition, Salazar first stated that he did not represent Grewal after

1999. See Dkt. No. 32, Salazar Dep. I at 37. However, the record reflects that Salazar

represented Grewal in the shareholder litigation that was filed in 2000. See id. at 37-40, Ex.

19. After acknowledging this fact, Salazar stated that he had not represented Grewal on any

other matters. See id. at 41. This, too, is likely false, as Grewal has recently explained that

Salazar is presently representing one his investment companies in a civil suit that has been

pending since 2006. See Dkt. No. 32, Grewal Dep. at 6-8. 

Salazar failed to disclose to the trial court his past and current affiliations with Grewal. 

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 9 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10 During cross-examination regarding the 1998 criminal assault case, Grewal told Mr.

Cobos, and thus the jury, that “your office represented me.” 2/5/01 R. at 89 (emphasis added). 

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 10

Furthermore, although both Salazar and the Washington Court of Appeals acknowledged

Grewal’s status as a “key” and “important” witness in petitioner’s murder trial, Dkt. No. 32,

Salazar Dep. I at 43; Dhaliwal, 113 Wn.App. at 229, Salazar neglected to interview Grewal. 

Salazar testified that such an interview was unnecessary because he believed he knew the

reason for Grewal’s change in testimony, i.e., a letter that petitioner had written and

disseminated throughout the Sikh community which included a claim of infidelity as to

Grewal’s wife. Dkt. No. 32, Salazar Dep. I at 42-44. However, if Salazar would have

interviewed Grewal, he would have learned that Grewal had little or no knowledge of this

information. At trial, Grewal denied receiving or having knowledge of this correspondence,

denied being upset or ashamed by this putative allegation, and gave confusing testimony

regarding any alleged threats made by petitioner. See 2/5/01 R. at 81-85, 103-06. In fact,

Grewal recently stated that petitioner always treated his wife “as a sister.” Dkt. No. 32,

Grewal Dep. at 42-43.

Salazar has acknowledged that, because of this conflict of interest, he had Mr. Cobos

cross-examine Grewal, although Salazar helped “prepare him” for that examination. Dkt. No.

32, Salazar Dep. I at 45. This would, in Salazar’s words, help make a “clean record,” because

Mr. Cobos “had never previously represented Mr. Grewal.” Id. at 45-46. However, the

record suggests the opposite might be true—i.e., that Cobos did represent Grewal during prior

proceedings. Id. Ex. 21.10 Regardless, while the parties agree that the cross-examination of

Grewal spanned many pages, petitioner argues that it was deficient in many respects.

3. Fred Leatherman

An equally significant conflict came by way of Fred Leatherman, a person whose role in

this case appears to have been neither addressed nor considered by the Washington Court of

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 10 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

11 Taken together, the declarations echo a consistent story: (1) death threats regarding

petitioner, made by Rajpal Singh Padda to Harbhajan Singh on December 19, 1999 at the Sikh

Temple in Renton, Washington; (2) a fairly detailed plot to assault and/or kill petitioner; (3) a

meeting on the day in question by the Bassi faction at The Pizza Shop on Pacific Highway,

witnessed by Karanbir Singh, who saw a white plastic bag held by Padda with two guns, one of

which he passed to Bassi before they left the restaurant; (4) entry into an unmarked white car

by Bassi, Padda, and two other men (Padda driving), followed by Virk in a STITA taxicab

(presumably as a backup car if things went awry); (5) finding petitioner’s cab at the airport and

following him to downtown Seattle; (6) petitioner’s frantic cell phone calls to certain of his

friends once he discovered he was being followed; and (7) later hearing of Bassi’s death. 

Leatherman Letter to Detective Ramirez, app. (Feb. 4, 2000).

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 11

Appeals or Washington Supreme Court. Mr. Leatherman was retained as counsel for

petitioner in early 2000. In the weeks that followed, Mr. Leatherman “met with and

interviewed many witnesses to the shooting, the conflicts that preceded it, and its aftermath.”

Dkt. No. 32, Leatherman Dec. ¶ 5. On February 4, 2000, he wrote the detective on the case

regarding the results of his investigation. Dkt. No. 32, Leatherman Letter to Detective

Ramirez at 1-6 (Feb. 4, 2000). Attached to the letter were no less than nine declarations from

witnesses, associates, and/or acquaintances of the pertinent players in petitioner’s case. See id.

app.11 In late March 2000, Saidpur arranged for a meeting in downtown Seattle between

Leatherman and petitioner (still a fugitive) for the purpose of turning petitioner in to the

authorities. Dkt. No. 32, Leatherman Dec. ¶ 6. 

In September 2000, Leatherman learned that many of the witnesses he had previously

interviewed were now claiming that their interview statements were not truthful. Id. ¶ 7. 

Leatherman withdrew as counsel on September 17, 2000, once it became obvious that he was

a necessary impeachment witness in this regard. Id. He kept in contact with Salazar, and had

“the understanding that [he] would be called as a witness for the defense,” and that “Mr.

Salazar would call [him] when [his] testimony was needed.” Id. ¶¶ 8-9. Indeed, a letter faxed

from Salazar to Leatherman on February 6, 2001, clearly indicates Salazar’s anticipation that

Leatherman would be called at trial. Dkt. No. 32, Salazar Letter to Leatherman at 1-3 (Feb.

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 11 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 12

6, 2001) (noting numerous questions Salazar had for Leatherman in advance of his testimony). 

However, Salazar never called Leatherman to testify. Dkt. No. 32, Leatherman Dec. ¶ (“To

this day, I do not know why he decided not to call me.”).

Petitioner contends that Salazar’s decision was tied to one of his numerous conflicts in

this case: his concurrent representation of Gurchuran Saidpur. Despite Leatherman’s

understanding that the Dhaliwal–Leatherman meeting was arranged by Saidpur, when

questioned at trial, Saidpur denied any contact with petitioner over this time. 2/6/01 R. at 217-

18. Saidpur’s earlier declaration reveals that this testimony was completely fabricated. See

Dkt. No. 32, G. Dhaliwal Dec. ¶ 7. Moreover, according to Saidpur’s statements, Salazar

explained that he would not be able to call Leatherman as a witness in petitioner’s criminal trial

because it was likely that Leatherman would implicate Saidpur in a crime. Id. ¶ 8. By so

deciding, Salazar arguably put Saidpur’s legal interests above petitioner’s.

Salazar’s decision not to call Leatherman quite possibly undermined petitioner’s

defense at trial. Had Leatherman been called to testify, he could have impeached the testimony

of several witnesses, including Grewal, Salazar’s prior, concurrent, and present client. See

Dkt. No 32, Leatherman Dec. ¶¶ 11-21. Specifically, Leatherman could have controverted

Grewal’s statements at trial that: (1) the comments he initially provided to police officers

supporting petitioner’s self-defense were lies; (2) that he had been threatened by petitioner to

make certain statements; (3) that petitioner had never been threatened by Bassi and/or his

faction; (4) that he had not seen Bassi run to petitioner’s cab or try to open his door; (5) that

he had not heard Padda yell to Bassi “not to let him [petitioner] go”; and (6) that he had heard

petitioner express a desire to shoot Bassi. Id. 

Leatherman, if called as a witness, would have similarly impeached the surprising trial

testimony of prosecution witness Vikramjeet Virk, one of the men in the Bassi cab on the day

of the shooting. See Dhaliwal, 113 Wn.App. at 230. Leatherman could have done so based

on an interview he conducted with Virk in February 2000, wherein Virk expressed his fear of

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 12 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 13

being charged with a crime and being retaliated against by the Bassi faction, which prompted

his questions to Leatherman regarding the possible legal consequences if he were to, at trial,

recant the statements he had initially made to police officers around the time of the shooting. 

Dkt. No. 32, Leatherman Dec. at 10-14. Leatherman refused to answer Virk’s question,

reminding Virk that he was petitioner’s counsel, and was ethically prohibited from giving legal

advice to potential witnesses in the case. Id. at 12-13, ¶¶ 30-31. Initially, Leatherman was so

convinced that Virk would provide exculpatory evidence that he sought and obtained a

material witness warrant for Virk’s arrest upon learning that he was planning to travel to India

until the end of the trial. Id. at 13, ¶ 32. 

Salazar demonstrated a profound lack of knowledge or indifference regarding Fred

Leatherman’s importance to petitioner’s defense. This was recently reflected in Salazar’s

deposition, during which Salazar explained that he (1) had no memory that Leatherman

withdrew from the case because of a conflict of interest; (2) could not recall whether he had

any substantive conversations with Leatherman while investigating petitioner’s case; and (3)

provided no explanation for his failure to call Leatherman as a defense witness at petitioner’s

trial, other than the conclusory opinion that Leatherman “would not be a helpful witness.” See

Dkt. No. 32, Salazar Dep. I at 31-33, 72-76, 119. The prosecution emphasized the absence

of Leatherman in its closing argument:

Where is Fred Leatherman? Doesn’t it really beg the question: Where is Fred

Leatherman? Mr. Salazar got up and argued what the evidence supported was

the contention that Mr. Virk provided this information to Harbhajan Singh and

Mr. Dhillon and went down to Mr. Leatherman’s office and provided the exact

same evidence to Mr. Leatherman. Presumably Mr. Leatherman would be an

independent witness. He’s a lawyer here in town. Where is he to corroborate

that? He’s not here. Is it credible? I would submit not.

2/13/02 R. at 122-23.

4. Conflicts Regarding State Witnesses

Not only did Salazar fail to interview witnesses critical to petitioner’s defense, he

neglected to interview a single witness called by the prosecution, despite the fact that defense

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 13 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12 Under Washington law, defense counsel is permitted to interview all State witnesses

before they testify at trial. If a witness refuses to cooperate, the court may order that a pretrial

deposition take place. See Wash. CrR 4.6(a) (West 2006); State v. Gonzalez, 110 Wn.2d 738,

745, 757 P.2d 925, 929 (1988).

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 14

counsel is permitted to do so under Washington law.12 Salazar has acknowledged as much. 

See, e.g., Dkt. No. 32, Salazar Dep. I at 43; Salazar Dep. II at 177-80. It is also undisputed

that Salazar decided not to interview any witness belonging to or friendly with the Bassi

faction because he believed that all such witnesses would lie. See id., Salazar Dep. I at 116-

17; Salazar Dep. II at 150-52 (“My experience was that they [the Bassi faction] would say

anything[,] whether it was the truth or not.”). 

Petitioner insists it is patently unreasonable to fail to interview important prosecution

witnesses, stressing that no competent, non-conflicted attorney would have failed in this

regard. According to petitioner, it was necessary to interview such witnesses to determine

what type of evidence he would need to expect and/or submit at trial. In this regard, petitioner

argues that Salazar should have, if nothing more, interviewed these witnesses in an attempt to

obtain important impeachment evidence, and that Salazar’s choice not to do so cannot be

viewed as “tactical” because absolutely no effort was made to procure the information

necessary to make such a decision. Indeed, it is possible that Salazar made these “nondecisions” due to his own personal biases, created by the numerous conflicts of interest

stemming from his past and current representation of persons embroiled in legal disputes with

Farwest and the Bassi family. See id., Salazar Dep. II at 151-52 (agreeing that his decision not

to interview these witnesses was based, at least in part, on his “disputes over the years with

these two factions”—specifically, his “legal assistance in the civil and criminal matters”).

B. Additional Discovery Has Rendered Petitioner’s Ineffective

Assistance of Counsel Claims Unexhausted

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 14 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 15

104-132, 110 Stat. 1214 (1996), governs habeas petitions filed by prisoners who were

convicted in state courts. 28 U.S.C. § 2254. In order for a federal district court to review the

merits of a § 2254 petition, the petitioner must first exhaust his state court remedies. 28

U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). The

purpose of the exhaustion doctrine is to preserve federal-state comity which, in this setting,

provides state courts the initial opportunity to correct violations of its prisoners’ federal rights. 

Duncan v. Henry, 513 U.S. 364, 365 (1995); Ex parte Royall, 117 U.S. 241, 251 (1886). 

“The § 2254(b) exhaustion requirement means that petitioners must present to the state court

both the facts necessary to state a claim for relief and the federal legal theory on which that

claim is based.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Gray v.

Netherland, 518 U.S. 152, 162-63 (1996)). A petitioner can satisfy the exhaustion

requirement by either (1) fairly and fully presenting each of his federal claims to the highest

state court from which a decision can be rendered, or (2) demonstrating that no state remedies

are available to him. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A petitioner fairly

and fully presents a claim if he submits it “(1) to the proper forum, (2) through the proper

vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v.

Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted). 

When new facts present new claims or significantly augment old ones, federal courts

should carefully consider whether those claims are unexhausted so as not to trample on the

state courts’ initial opportunity to pass upon merits of those claims. See Aiken v. Spalding,

841 F.2d 881, 884 n.3 (9th Cir. 1988) (per curiam) (“‘[Where] a federal habeas petitioner

presents newly discovered evidence or other evidence not before the state courts such as to

place the case in a significantly different and stronger evidentiary posture than it was when the

state courts considered it, the state courts must be given an opportunity to consider the

evidence.’”) (quoting Dispensa v. Lynaugh, 826 F.2d 375 (5th Cir. 1987)). Comity demands

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 15 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 16

this much. 

A federal claim is unexhausted if it contains new factual allegations which

“fundamentally alter the legal claim already considered by the state courts.” Vasquez v. Hillery,

474 U.S. 254, 260 (1986). In addition, new evidence may also violate the “fair presentation”

requirement and render a claim unexhausted if it “substantially improves the evidentiary basis”

for the claim it supports. Aiken, 841 F.2d 883. New factual allegations that are merely

cumulative of those previously presented to the state court, however, do not require

exhaustion. Hillery v. Pulley, 533 F. Supp. 1189, 1200-02 (E.D. Cal. 1982), aff’d, 733 F.2d

644 (9th Cir. 1984), aff’d, 474 U.S. 254 (1986).

Here, petitioner’s additional discovery has yielded new conflicts of interest while also

adding to the evidentiary basis underlying the original conflicts alleged in state court. 

Specifically, the Court points to the above-mentioned evidence relating to Fred Leatherman,

representation of Gurinder Grewal’s business, the third-party fee arrangement, the additional

capacities in which Salazar represented trial witnesses, and the additional information regarding

Salazar’s representation of every plaintiff but petitioner in the wrongful death suit. 

Furthermore, Salazar’s recent deposition makes it clear that several of his trial decisions (or

non-decisions) were based, at least in part, on conflicting loyalties created by the numerous

conflicts of interest stemming from his past and concurrent representation of persons involved

in legal disputes with Farwest and the Bassi Family. See, e.g., Dkt. No. 32, Salazar Dep. II at

151-52. 

Although petitioner’s ineffective assistance of counsel claims have essentially remained

the same, the evidentiary basis for those claims has changed significantly. Cf. Beaty v. Stewart,

303 F.3d 975, 989-90 (9th Cir. 2002) (holding that conflict-of-interest claim was unexhausted

where petitioner presented facts that supported a different incident of conflict in his habeas

petition). This is the very type of evidence which the state courts should consider in the first

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 16 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13 The Court of Appeals’ opinion, at times, appears to express this much. See, e.g.,

Dhaliwal, 113 Wn.App. at 240 n.49 (noting that petitioner’s request to remand for further

inquiry regarding Salazar’s actual conflicts-of-interest was likely “better suited in the context of

a personal restraint petition”).

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 17

instance.13 In sum, the additional facts place petitioner’s conflict-based ineffective assistance

of counsel claim in a significantly different and stronger evidentiary posture than that presented

in state court over two years ago. Accordingly, this claim is unexhausted. See Aiken, 841

F.2d at 884 & n.3. Furthermore, because petitioner’s second ineffective assistance claim—that

of deficient performance—stems directly from Salazar’s alleged conflicts of interest, it, too,

has not been fully exhausted. 

C. Petitioner Has Presented a Mixed Petition

Petitioner’s prosecutorial misconduct claim has been properly exhausted. However, his

ineffective assistance of counsel claims have not. Petitioner’s current habeas corpus petition is

therefore “mixed.” Rose v. Lundy, 455 U.S. 509, 522 (1982). In this situation, the Court may

dismiss all or part of the petition without prejudice. Jefferson v. Budge, 419 F.3d 1013, 1016-

17 (9th Cir. 2005). This remedy presents a dilemma for the petitioner, however, because his

petition will likely be time-barred under AEDPA by the time he accepts dismissal, exhausts

his unexhausted claims in state court, and returns to federal court to file a second habeas

action. See, e.g., Ford v. Hubbard, 330 F.3d 1086, 1098 (9th Cir. 2003). 

However, the petitioner can avoid dismissal. Prior to dismissing a mixed petition, this

Court must provide petitioner with the opportunity to (1) amend his petition to proceed only

with his exhausted claims, (2) withdraw the entire petition and resubmit it upon exhausting his

remaining claims, or (3) show good cause as to why the Court should stay the entire petition

pending the exhaustion of his unexhausted claims. Jackson v. Roe, 425 F.3d 654, 659-60 (9th

Cir. 2005); Calderon v. United States District Court (Taylor), 134 F.3d 981, 988 (9th Cir.

1998). If this Court grants a stay and holds the petition in abeyance pending the exhaustion of

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 17 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 18

state remedies, petitioner may then return to federal court and amend his petition without

encountering problems with the statute of limitations, see 28 U.S.C. § 2244(d)(1), or the

prohibition on second or successive habeas filings, id. § 2244(b)(2). This “stay and

abeyance” procedure is available only in limited circumstances in which the Court finds that

petitioner had “good cause” for failing to exhaust the claims. Rhines v. Weber, 544 U.S. 269,

277 (2005). The Court should not grant the stay if the claims are meritless, or if petitioner

engages in “abusive litigation tactics or intentional delay.” Id. 

The petitioner has already demonstrated good cause for option three. His claims are

certainly not meritless; nor does it appear that petitioner has engaged in abusive litigation

tactics or intentional delay. However, petitioner must still be given the option to forgo some,

all, or none of his current petition.

V. CONCLUSION

This case is riddled with substantial and serious conflicts of interest. The Washington

Court of Appeals and Washington Supreme Court held that the trial judge failed to conduct

an adequate conflict-of-interest inquiry, and concluded that petitioner did not waive his Sixth

Amendment right to a conflict-free attorney; however, those courts ultimately found that

petitioner had failed to show that the alleged conflicts adversely affected his attorney’s

performance. Consequently, those courts upheld petitioner’s conviction. 

Additional discovery permitted by this Court may affect the state courts’ final

conclusion—i.e., that defense counsel’s numerous conflicts of interest did not adversely affect

his handling of petitioner’s murder trial. These new and unexamined facts highlight the need

to preserve federal-state comity in this case. Accordingly, and in the interests of justice, the

Court ORDERS petitioner to select one of three options regarding his mixed § 2254 petition:

(1) Amend the petition to proceed only with his exhausted claims;

(2) Withdraw the entire petition and resubmit it upon exhausting his

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 18 of 19
01 

02

03

04

05

06

07

08

09

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14 Should the third option be selected and thereafter granted by this Court, the

one-year limitation period imposed by AEDPA, 28 U.S.C. § 2244(d)(1), would be tolled

during the pendency of petitioner’s state-court proceedings. See id. § 2244(d)(2). The

petitioner’s request for an evidentiary hearing before this Court would also be held in abeyance

during this period. See Schriro v. Landrigan, ___ U.S. ___, No. 05-1575, slip op. at 6 (May

14, 2007) (noting that under AEDPA, the decision to grant an evidentiary hearing is “left to the

sound discretion of district courts”).

ORDER REGARDING MIXED 28 U.S.C. § 2254 PETITION

PAGE - 19

remaining claims; or 

(3) Request that the Court stay this case, and hold the petition in abeyance,

pending the exhaustion of petitioner’s unexhausted claims.14

Petitioner shall advise the Court of his selection no later than June 11, 2007. The

Court further directs that a copy of this Order be sent to the Washington State Bar

Association for its consideration of the appropriateness of disciplinary measures. The Clerk

is also directed to send a copy of this Order to the Honorable Robert S. Lasnik, Chief Judge. 

DATED this 16th day of May, 2007.

AJAMES P. DONOHUE

United States Magistrate Judge 

Case 2:06-cv-00211-RSL-JPD Document 40 Filed 05/16/07 Page 19 of 19