Leading off this edition isUnited States v. Stitt. The Fourth Circuit inStittlooks at the problems of privately retained counsel when the fees are from dubious sources. Stitt's counsel never hired an expert(s) because such a request either would have had to come out of the flat fee money forwarded on behalf of Stitt or would have had required a request for the court to fund the expert. Any request as to the funding of the expert(s) through court funding would have likely required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid. In light of the inherent conflict at issue here, relief as to the penalty phase granted.

The Supreme Court on Monday granted a cert in Lawrence v. Florida, a capital case. The issues the Court seems to be interested in that case appears to be related to the AEDPA's statute of limitations calculations. The SCOTUS blog hasmore.

In the news, the American Bar Association's Criminal Justice Section has released a new report on preventing wrongful convictions entitledAchieving Justice: Freeing the Innocent, Convicting the Guilty. TheCapital Case Data Projectof theAmerican Judicature Societyannounced their count of 125 new death sentences in 2005, one less than in 2004, including 14 death sentences imposed through new sentence proceedings after remands. The House on Thursday held a hearing on onH.R. 5040, the "Death Penalty Reform Act of 2006."Finally, the South Carolina Senate hasapproved the death penaltyfor pedophiles.

Of note on the web this week are two new "resources." Two lawyers out of Marietta, Georgia,Rob Leonard& John Barrett have started a great new blogGeorgia Criminal Law Blog and Podcast, the name says it all.Georgetown Law has made available the oral arguments before the SCOTUS in Hamdan v. Rumsfeldavailable here.

Looking ahead to the next edition, so far only one case of note is had,LeClerc v. Webb. InLeClercseven judges dissented in the Fifth Circuit's denial of rehearing en banc on the constitutionality of Louisiana's court rule barring most foreign born attorneys. This court rule was specifically aimed at foreign-born capital defense counsel.

As always thanks for reading. - k

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SCOTUS

<> <>Lawrence v. Florida, No. 05-8820 (3/27/2006) Cert granted on AEDPA statute of limitations questions & an interesting blended question of tolling / ineffective assistance of postconviction counsel. The petition in wordperfect format is availablehere. Questions presented are

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I. There is a split in the circuits about whether the one-year period of limitations is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment of claim is pending. . . ." Antiterrorism and Effective Death Penalty Act (AEDPA) 28 U.S.C Section 2244(d) (2). Where a defendant facing death has pending a United States Supreme Court certiorari petition to review the validity of the state’s denial of his claims for state post-conviction relief, does the defendant have an application pending which tolls the 2244(d)(2) statute of limitations?

II. Alternatively, does the confusion around the statute of limitations -- as evidenced by the split in the circuits – constitute an "extraordinary circumstance," entitling the diligent defendant to equitable tolling during the time when his claim is being considered by the United States Supreme Court on certiorari?

III.And in the second alternative, do the special circumstance where counsel advising the defendant as to the statute of limitations was registry counsel – a species of state actor – under the monitoring supervision of Florida Courts, with a statutory duty to file appropriate motions in a timely manner, constitute an "extraordinary circumstance" beyond the defendant’s control such that the doctrine of equitable tolling should operate to save his petition?

<>In Favor of Life & Liberty

United States v. Stitt, 2006 U.S. App. LEXIS 732 (4th Cir 3/24/2006) The district court found that Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness. Such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid (the Government claimed that his fees came from drug money). [ More here]

Favoring Death

Perez v. Dretke, 2006 U.S. App. LEXIS 7284 (5th Cir 3/23/2006) (unpublished) Relief denied. Perez requests a certificate of appealability (COA) on two habeas claims denied by the district court. Those underlying claims are that he was denied due process of law when the trial court: (1) permitted an inspector with the United States Marshal Service near two prosecution witnesses, in view of the jury; and (2) admitted inadmissible, cumulative evidence.

Sepulvado v. LA Bd of Pardons, 2006 U.S. App. LEXIS 7002 (5th Cir 3/21/2006) (unpublished) Relief denied on "claims the State's clemency procedure violates the Eighth (cruel and unusual punishment) and Fourteenth (due process denial) Amendments."

Cannady v. Dretke, 2006 U.S. App. LEXIS 7162 (5th Cir 3/22/2006) (unpublished) Relief denied & COA denied on claims of: ineffective assistance of trial counsel; whether his claim of ineffective assistance of counsel concerning his defense of actual innocence was procedurally defaulted; the district court's denial of an evidentiary hearing; and an ex post facto challenge to Texas Penal Code sec. 19.03(a)(6).

Lave v. Dretke, 2006 U.S. App. LEXIS 7173 (5th Cir 3/22/2006) A split panel of the Fifth Circuit denies relief on the retroactivity of Crawford v. Washington.

Coble v. Dretke, 2006 U.S. App. LEXIS 7171 (5th Cir 3/22/2006) Relief denied on whether the Texas special issues limited the ability of Billy Wayne Coble to present mitigating evidence. Coble, a decorated Marine Corps machine gunner in VietNam, suffered from post-traumatic stress disorder & bipolar. A similar issue is currently pending rehearing en banc in Nelson v. Dretke

Foster v. State, 2006 Fla. LEXIS 488 (FL 3/23/2006) (dissent) Relief denied on claims including: "(1) whether trial counsel was ineffective for failing to raise and establish a voluntary intoxication defense in conjunction with evidence pertaining to Foster's mental disability; (2) whether the trial court erred by denying the Atkins and Ring claims without an evidentiary hearing; and (3) whether the trial court erred by not permitting an amendment to the motion to vacate his judgment and sentence based upon the claim relating to Vogelsang's statement." Dissent noted on denial of evidentiary hearing on Foster's Atkins claim.

Buzia v. State, 2006 Fla. LEXIS 487 (FL 3/23/2006) Relief denied on claims "A) the trial court erred in finding the prior violent felony aggravating circumstance; (B) the trial court erred in finding the avoid-arrest aggravating circumstance; (C) the trial court erred in finding the HAC aggravating circumstance; (D) the trial court erred in finding the CCP aggravating circumstance; (E) the death penalty is not warranted in this case; and (F) Florida's capital sentencing procedures violate Ring v. Arizona." Relied also denied on independent review of whether "the evidence was sufficient to convict Buzia of first-degree murder."

Comm. v. Chester, 2006 Pa. LEXIS 274 (PA 3/21/2006) "Appellant's PCRA petition is untimely on its face, and Appellant has failed to plead and prove that his petition meets the requirements of the statutory exceptions to the PCRA's jurisdictional time-bar. This Court and the PCRA court, therefore, lack jurisdiction to consider Appellant's substantive claims."

Jackson v. Warden of Sussex I, 2006 Va. LEXIS 32 (Va 3/24/2006) Relief denied on postconviction on various claims alleging, chiefly, numerous ineffective assistance of counsel (mostly related to failure to investigate & present mitigation evidence).

Other

In re: Associated Press, et al., 2006 U.S. App. LEXIS 7371 (4th Cir 3/22/2006) Petition "for a writ of mandamus seeking contemporaneous access to documentary exhibits admitted into evidence in the course of the sentencing phase trial of Zacarias Moussaoui. Petitioners also seek access to transcripts of bench conferences conducted during the course of the trial." Granted in part / denied in part

Selected excerpts from this Edition's Cases

United States v. Stitt, 2006 U.S. App. LEXIS 732 (4th Cir 3/24/2006) The district court found that Stitt's retained attorney at trial had an actual conflict of interest based on his failure to request the court to appoint an expert to assess Stitt's propensity for future dangerousness. Such a request would have required an examination by the district court of the fee arrangement between Stitt and his attorney, which the attorney sought to avoid (the Government claimed that his fees came from drug money). [ More here]

The court initially noted that Stitt hired Malinski, a Florida lawyer who had represented Stitt in the past, as his principal counsel. Franklin Swartz, a Virginia lawyer, served as local counsel. Id. at 683. The court found that it was "not clear from the record exactly what were the sources of funds used to pay for [Stitt's] defense," nor even the precise amount of the fees paid. Id. at 691. During the course of Stitt's trial the prosecutor maintained that Malinski had received $ 500,000 in drug money to represent Stitt. Id. The district court conducted a short hearing on the matter in camera but did not pursue the matter further at trial. See id.

At the habeas hearings, however, in assessing Stitt's challenges, the court attempted to determine the particulars of Malinski's fee arrangement, including the source and amount of Malinski's fees. Malinski [*5] testified that he had little recall of these matters. He was only clear that he and Swartz were to receive flat fees, with any costs for experts to be paid by Stitt's family "when a particular expense arose." Id. at 692. After repeated questioning by the court, Malinski guessed that he received a total flat fee of between $ 75,000 and $ 100,000. Id. at 691. Kenneth "Boobie" Williams stated in a sworn affidavit that he paid Malinski over $ 100,000 through third parties to represent Stitt. Id. Similarly, Maurica Stitt Johnson, Stitt's aunt, testified that she was an intermediary who collected money for Malinski from another friend of Stitt's in Florida, Robin Jones. Id. Notwithstanding this evidence, Malinski insisted that he did not remember anything more about his fees; specifically, he did not "recall who paid him" on Stitt's behalf or whether Stitt's family had been the only ones who had made the payments. Id. at 692. He did acknowledge that "one payment had to be rejected because the source of funds could not be verified." Id. Noting that "Malinski could not even tell the court whether he maintained any records as to [*6] what he was paid or what his expenses were," the district court expressly found Malinski "evasive and not credible in answering questions about the source of the funds, his expenditures and his record-keeping." Id.

Stitt argued that the Government's accusation that Malinski received over $ 500,000 in drug money made Malinski eager to avoid scrutiny of his fee. Requesting a court-appointed expert would have required the court to inquire into Stitt's resources and Malinski's fee; Stitt contended that Malinski's desire to protect his personal interests prevented him from seeking the court's assistance to hire a qualified expert. The district court found that "it was clear that Malinski sought to avoid a Court inquiry into the source of funds paid to him in order to protect his own self-interest." Id. at 693. The court noted that Malinski himself conceded as much when cross-examined at the habeas hearing. Malinski testified that he believed Stitt "didn't have the resources to pay for [a] mitigation investigator" to assist during the penalty phase, and admitted that he knew that "under the law ... Stitt was entitled to the provision of such services." Yet despite [*7] this knowledge, Malinski refused to ask the court to appoint an adequate mitigation expert, or even to recommend this course of action to Stitt. Id. at 693. Indeed, Malinski acknowledged that he "never discussed this option with [Stitt]," nor did he inform Stitt "of Malinski's decision not to pursue it." Id. at 694. Malinski testified that he did not seek a court-appointed expert because such a request could have "caused problems" by requiring Malinski to divulge the amount and sources of his fees. Malinski "didn't want to go down that road"; according to Malinski, it was a "hot spot" because of the prosecution's allegation that Malinski had been paid $ 500,000 in drug money to represent Stitt. Id. at 693. The district court pointed out that it had attempted to have Malinski elaborate on the "problems" that "he believed would have been caused" by the court's appointment of an adequate propensity for violence expert, but Malinski "could not -- or would not" articulate any asserted problems other than to acknowledge that he sought to avoid "the Government's inquiry into the source of payments made to him." Id. at 694. [*8] For these reasons the court found it "obvious that Malinski labored under an actual conflict of interest." Id.

The court concluded that this actual conflict had an adverse effect on Stitt's defense because an adequate expert addressing Stitt's propensity for violence was critical to counter the Government's expected position that Stitt would present a danger if sentenced to life imprisonment. (The Government did in fact present a strong expert on Stitt's future dangerousness in prison, and the jury unanimously found that Stitt's future dangerousness was an aggravating factor justifying imposition of the death penalty.) Malinski located and sought to hire Dr. Mark Cunningham, a recognized propensity for violence expert with extensive experience in federal capital cases. When Stitt's family did not have sufficient funds to hire Dr. Cunningham, Malinski instead hired the concededly less expensive and less qualified Dr. Thomas Pasquale. The district court found that "there is no doubt that Dr. Cunningham would have been the stronger expert," noting that Dr. Pasquale's only exposure to federal prisons was viewing an HBO television special. Id. at 695 & n. 11. The court [*9] found that Malinski based his decision to hire Dr. Pasquale solely on protecting his financial arrangements from the court's scrutiny, and concluded that "this was not a reasonable basis for the decision, because the circumstances suggest that Malinski could have obtained court-appointed experts." Id. at 695. For these reasons, the court found that Malinski's actual conflict of interest "adversely affected" Stitt's defense, and so "prejudice . . . is presumed." Id. . . .

II. In order to show ineffective assistance of counsel, a claimant generally must demonstrate that his lawyer afforded him defective representation and that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). However, when counsel is burdened by an actual conflict of interest, he "breaches the duty of loyalty, perhaps the most basic of counsel's duties." Id. at 692. In this situation, a defendant need not show prejudice due to the inherent seriousness of the breach and the difficulty in "measuring the precise effect on the defense of representation corrupted by conflicting interests." Id. Rather, "prejudice is presumed . . . if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)) (internal quotation marks omitted).

The district court analyzed [*12] Stitt's conflict of interest claims under the presumption of prejudice standard first set forth in Sullivan. The Government's appeal turns on whether the court erred in doing so. This is because the sole ground urged by the Government for reversal is that the district court applied the wrong legal standard. Thus, the Government does not challenge "the district court's conclusion that Malinski had a private conflict of interest or that the conflict adversely affected his performance." Brief of Appellee at 19. Indeed, the Government concedes that if Sullivan is the correct standard, Stitt produced sufficient evidence to obtain relief from his capital sentence.

The Government insists, however, that the Sullivan standard does not apply to the actual conflict here but only to conflicts growing out of multiple representation claims - those involving a lawyer's representation of two or more clients at the same time. According to the Government, all non-multiple representation conflict of interest claims must meet the Strickland prejudice requirement. The Supreme Court has never so held, and we have repeatedly rejected this approach. See, e.g., Rubin v. Gee, 292 F.3d 396, 402 n. 2 (4th Cir. 2002); [*13] United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992); United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991).

Of course, we have also repeatedly reiterated that in order to obtain the benefit of the Sullivan presumption a defendant must demonstrate: (1) an actual conflict of interest (2) that "results in an adverse effect on counsel's performance." Tatum, 943 F.2d at 375. Although this standard excuses a petitioner from proving prejudice under Strickland, it does not lack teeth.

First, the conflict of interest must be active; possible or potential conflicts will not satisfy this requirement. See, e.g., Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987) (holding that possible conflict of interest arising out of attorney's participation in co-defendant's trial "did not so infect [petitioner's] representation as to constitute an active representation of competing interests"); United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (finding that defendant's state bar grievance petition against his lawyer did not create an actual conflict because the attorney could not [*14] "have gleaned any advantage for himself in disciplinary proceedings before the state bar by failing to employ his best exertions . . . at trial").

Moreover, even if a petitioner can establish the first element -- an actual conflict of interest -- he will not be entitled to the Sullivan prejudice presumption unless he can also demonstrate the second element -- that "the conflict has significantly affeected counsel's performance." Mickens v. Taylor, 535 U.S. 162, 173, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). To establish that an actual conflict caused an adverse effect, a defendant must meet a three-part test. As Judge Widener explained for this court sitting en banc:

First, the petitioner must identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued. Second, the petitioner must show that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney at the time of the attorney's tactical decision. . . . Finally, the petitioner must establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.

Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001) [*15] (en banc), aff'd, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). Thus, it is not enough for a petitioner to show that his attorney labored under an actual conflict; he must also demonstrate that the conflict caused the attorney's failure to pursue a plausible, objectively reasonable alternative strategy.

But when a petitioner can establish these two elements, we have concluded on multiple occasions that the Sullivan presumption applies, even when counsel is not simultaneously representing two or more persons. For example, in Tatum we pointed out that an actual conflict does not necessarily require that an attorney "formally represent[] hostile interests." Tatum, 943 F.2d at 376 (emphasis added). Rather, we noted that an attorney will labor under an actual conflict of interest sufficient to trigger the Sullivan presumption when he "harbor[s] substantial personal interests which conflict with the clear objective of his representation of the client." Id.

In Magini, we again expressly rejected the Government's argument here, holding that "although conflicts of interest usually occur when an attorney represents multiple clients, [*16] a conflict may also arise between an attorney's private interests and those of the client." Magini, 973 F.2d at 264 (citations omitted). There, a habeas petitioner claimed that her counsel's private pecuniary conflict of interest violated her Sixth Amendment right to counsel. The district court analyzed her claim as one of "attorney competence" under Strickland. Id. at 264. We reversed, holding that Sullivan provided the correct method of analysis, and remanded for an evidentiary hearing "to analyze her conflict of interest claim according to the [Sullivan] standard." Id. at 265.

Finally, just a few years ago, we once again rejected the Government's position here. In Rubin, we held that Sullivan constituted the clearly established federal law governing a petitioner's claim that her lawyers' private conflict of interest adversely affected her representation. Rubin, 292 F.3d at 402. The conflict of interest in Rubin arose from the fact that, shortly after the petitioner shot her husband, two of her five lawyers arrived at the scene of the crime, took possession of evidence, and instructed her to [*17] check into a hospital using an alias. Id. at 403. We found that these lawyers' personal interests in avoiding prosecution and securing a retainer fee created an actual conflict that adversely affected the petitioner's representation. Id. at 401-02.

Despite our uniform precedent, n2 the Government insists that "after Mickens, it is untenable to apply Sullivan to a private conflict of interest case." Reply Brief of Appellee at 6. Contrary to the Government's suggestion, Mickens does not state, let alone hold, that Sullivan does not apply to private conflict of interest cases. Rather, the Mickens Court specifically left the scope of Sullivan "open." Mickens, 535 U.S. at 176. Moreover, after Mickens issued, we expressly held in Rubin that the Sullivan standard does apply to cases involving private conflicts of interest. Rubin, 292 F.3d at 402 n. 2; see also Vinson v. True, 436 F.3d 412, 418 (4th Cir. 2006) (applying Sullivan even when there was no multiple representation). Although we noted in Rubin that in Mickens the Supreme Court had warned against [*18] unduly expanding Sullivan to cover "every potential conflict of interest," we concluded that the Court "has never indicated that Sullivan would not apply to a conflict as severe as the one presented here." Rubin, 292 F.3d at 402 n. 2. The Government does not contend that the conflict of interest in this case is less severe than the one presented in Rubin. Nor could it, given the evidence presented in this case. n3

Accordingly, we again reject the Government's contention that Sullivan only applies to conflicts involving multiple representation. The district court did not err in holding that Sullivan provided the appropriate framework for analyzing the private conflict of interest claims at issue here.

Nor did the district court err in its application of the Sullivan standard to Stitt's penalty phase claim. As outlined [*20] above, the district court first found that Malinski's desire to shield his fee arrangement from the court's scrutiny constituted an actual, not possible or potential, conflict of interest because Malinski's personal interests prevented him from asking the court to appoint a qualified mitigation expert. Then the court concluded that asking the court to appoint Dr. Cunningham, a qualified expert, was a plausible, objectively reasonable strategy. See Mickens, 240 F.3d at 361. Malinski knew of this strategy, and the request for court resources likely would have succeeded, but Malinski did not pursue it because of his conflict of interest -- he placed his desire to protect his fee from scrutiny ahead of his duty to Stitt. Stitt, 369 F. Supp. 2d at 694-95. Thus, the district court found that Stitt offered evidence of an actual conflict that adversely affected Malinski's performance and therefore satisfied both elements of the Sullivan test. The Government does not dispute these findings, nor can we conclude that they are clearly erroneous. Therefore, we affirm the district court's judgment vacating Stitt's sentence.

THE SMALL PRINTSUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year. Archives accessible athttp://capitaldefenseweekly.com/index.html. To subscribe:capital_defense_weekly-subscribe@yahoogroups.com. The Weekly's RSS feed can be found athttp://rss.groups.yahoo.com/group/capital_defense_weekly/rss. The Daily Copy's RSS/Atom feed athttp://capitaldefenseweekly.com/atom.xml.