Four capital cases are reported this week, three of which are losses. In the first of the losses

Bains v. Cambra (9th Cir), a split panel, even finding constitutional error, still refuses to grant relief. The Fifth Circuit in Perrillo v. Johnson holds counsel suffered under a direct conflict of interest at trial and grants relief. The Fifth Circuit was not so forgiving in Murphy v. Johnson denying, in substantive part, allegations relating to impermissible jury composition on Teague grounds. Finally, the Fourth Circuit in Young v. Catoe denies relief on allegations relating to counsel's performance at trial.

The review of the Habeas Assistance and Training Group's materials on both Eighth Amendment jurisprudence and Habeas Overview completed, "In Depth" takes a sabbatical this week.

Please note that reporting on the sources that maintain the Seventh and Eleventh Circuit opinions have not released their mid-February opinions and appear unlikely to do so; those opinions, will not be covered.

Supreme Court

Portundo v. Agard As if to continue the contrast in last week's discussion on prosecutorial comment on silence, the Supreme Court weighs in this week:

Held:

1. The prosecutor’s comments did not violate respondent’s Fifth and Sixth Amendment rights. The Court declines to extend to such comments the rationale of Griffin v. California, 380 U.S. 609, in which it held that a trial court’s instruction about a defendant’s refusal to testify unconstitutionally burdened his privilege against self-incrimination. As a threshold matter, respondent’s claims find no historical support. Griffin, moreover, is a poor analogue for those claims. Griffin prohibited the prosecution from urging the jury to do something the jury is not permitted to do, and upon request a court must instruct the jury not to count a defendant’s silence against him. It is reasonable to expect a jury to comply with such an instruction because inferring guilt from silence is not always “natural or irresistible,” id., at 380; but it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he has heard the testimony of those who preceded him. In contrast to the comments in Griffin, which suggested that a defendant’s silence is “evidence of guilt,” id., at 615, the prosecutor’s comments in this case concerned respondent’s credibility as a witness. They were therefore in accord with the Court’s longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness–a rule that serves the trial’s truth-seeking function, Perry v. Leeke, 488 U.S. 272, 282. That the comments here were generic rather than based upon a specific indication of tailoring does not render them infirm. Nor does the fact that they came at summation rather than at a point earlier in the trial. In Reagan v. United States, 157 U.S. 301, 304, the Court upheld the trial court’s recitation of an interested-witness instruction that directed the jury to consider the defendant’s deep personal interest in the case when evaluating his credibility. The instruction in Reagan, like the prosecutor’s comments in this case, did not rely on any specific evidence of actual fabrication for its application, nor did it come at a time when the defendant could respond. Nevertheless, the Court considered the instruction to be perfectly proper. Pp. 3—12.

2. The prosecutor’s comments also did not violate respondent’s right to due process. To the extent his due process claim is based upon an alleged burdening of his Fifth and Sixth Amendment rights, it has been disposed of by the determination that those Amendments were not directly infringed. Respondent also argues, however, that it was improper to comment on his presence at trial because New York law requires him to be present. Respondent points to the Court’s decision in Doyle v. Ohio, 426 U.S. 610, for support. The Court held in Doyle that the prosecution may not impeach a defendant with his post- Miranda warnings silence because those warnings carry an implicit “assurance that silence will carry no penalty.” Id., at 618. No promise of impunity is implicit in a statute requiring a defendant to be present at trial, and there is no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. Pp. 12—14.

117 F.3d 696, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.

Capital Cases

Bains v. Cambra (9th Cir) In this capital appeal, issues arise concerning the nature of the Miranda violation at issue, dmission of hearsay testimony concerning Bains's state of mind, admission of hearsay testimony concerning threats made by other members of Bains's family, and argument emphasizing that violence is to be expected from Sikhs. Finding error on several grounds, the Ninth Circuit nonethess affirms. As to the standard used in affirming, the court offers:

In conducting its own independent harmless error review, erroneously believing that the California Court of Appeal had in fact applied the Watson and Chapman standards of harmless error review to all three of the errors committed at the trial level, the federal district court here applied the less stringent (i.e., in terms of being more forgiving of trial-type errors) Brecht standard. In Brecht, the Supreme Court held that a less stringent harmless error standard should be applied in 28 U.S.C. S 2254 habeas corpus cases where the state appellate court already had conducted a harmless error review (albeit in an improper manner) and the federal district court was conducting its own independent harmless error review. See Brecht, 507 U.S. at 636-38. Attempting to limit the holding of Brecht to the particular facts of that case, and seeking to distinguish those facts from the facts of his case, Bains now argues that the more stringent Chapman standard should have been applied where, as here, the state appellate courts never even had an opportunity to conduct their own harmless error review (because they did not find any constitu- tional errors susceptible to such review). We reject this argument and affirm the district court's selection and application of the Brecht standard.

We previously have not decided this issue. See, e.g., Hanna, 87 F.3d at 1038 n.2. However, as pointed out by Bains, the Eighth Circuit and a handful of federal district courts have argued that the Chapman standard should be applied where, as here, the state courts simply failed to identify certain constitutional errors and thus did not have the occasion to conduct their own harmless error analyses. See, e.g., Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993).7 These courts have argued that the holding of Brecht is not applicable when there is no state court harmless error ruling to which the federal district court can defer. See, e.g., id. Moreover, these courts have held that in the absence of any express indication in Brecht as to whether its holding should be read broadly or narrowly, its holding should be limited to the facts that were present there (i.e., the state court had identified constitutional errors but then simply had failed to apply the proper standard for its harmless error analysis). See, e.g., id.

Yet, at last count, the Third, Fourth, Fifth, Sixth, Sev- enth, Tenth, and Eleventh Circuits have held that in habeas corpus cases, federal district courts always should apply the Brecht standard when conducting their own independent harmless error review, regardless of what, if any, type of harmless error review was conducted by the state courts. See, e.g., Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995).8 These courts have argued that the language used in the Brecht opinion suggests that its holding should not be limited to its particular facts, especially since the specific factual pattern at issue in Brecht was a rather uncommon one (i.e., state courts tend more frequently simply to fail to recognize constitutional errors entirely rather than to recognize constitutional errors as such, but then to conduct improper harmless error analyses), and thus the harms sought to be avoided by implementing the Brecht holding would be avoided only in a very small minority of cases. See, e.g., id. Moreover, these courts also have argued that the interests laid out in Brecht (i.e., finality of state court convictions, comity, federalism, and prominence of the trial itself) are disserved by a reversal stemming from a federal district court decision, regardless of whether the state court's "mistake" was simply applying the wrong harmless error standard or rather failing to identify constitutional errors entirely and thus never having had the chance to conduct its own harmless error analysis. See, e.g., Hassine, 160 F.3d at 951. The fact that there was no state court harmless error ruling that would be supplanted was immaterial; what was material was that, for whatever reason, a state court conviction would be interfered with by a federal district court. Furthermore, some of those courts also have noted that judicial decision-making costs would be greatly increased by requiring federal courts to delve into the harmless error methodology used by the state courts in every case so as to determine whether the Brecht or the Chapman standard should be applied at the federal level. See, e.g., Sherman, 89 F.3d at 1141.

For the reasons listed in the preceding paragraph, we now join the vast majority of our sister circuits by deciding that the Brecht standard should apply uniformly in all federal habeas corpus cases under S 2254.

Turning to the district court's application of the Brecht standard, and having reviewed the record below, we conclude that such application was proper. As emphasized by the California Court of Appeal, and as impliedly agreed with by the federal district court, given the telephone calls linking Bains with Hidalgo and his twin brother (especially the telephone call to Bains's home from Shergill's apartment at a time when Shergill was at the airport), the check for $200 that had been drawn by Bains and had been endorsed by Hidalgo (and very likely had been alluded to by Hidalgo during his pre-arrest phone call as something the details of which should be kept hidden from the police), the self-incriminating statements (i.e., the highly suspicious lies) made by Bains to the police, and the powerful evidence of Bain's motive and intent to murder Shergill, a strong case against Bains remained even in the absence of the erroneously admitted evidence. Moreover, the errors committed here did not involve the more sensitive structural aspects of the trial, such as the use of peremptory challenges or the composition of the grand jury, such that the errors might be said to have infected the entire process and rendered any outcome necessarily suspect. See, e.g., Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995). Therefore, we conclude that in applying the less stringent Brecht standard, the district court properly did not have any "grave doubt" about whether the errors here had "a substantial and injurious effect or influence in determining the jury's verdict." The errors that occurred at trial do not provide sufficient reason to doubt under the Brecht standard the district court's final conclusions as to the legitimacy of the process and the correctness of the outcome of Bains's trial.

Perrillo v. Johnson (5th Cir) "The present appeal is from the district court's final judgment that Perillo demonstrated an actual conflict of interest that adversely affected Skelton's presentation of her defense. SeeCuyler v. Sullivan, 100 S. Ct. 1708 (1980)."

V.

An actual conflict may exist and the Constitution is implicated when an attorney is placed or places himself or herself in a situation "inherently conducive to divided loyalties." Castillo, 504 F.2d at 1245; Johnson v. Hopper, 639 F.2d 236, 238 (5th Cir. 1981) (internal quotations omitted); Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir. 1979) (internal quotations omitted); seealso Placente, 81 F.3d at 558. "An attorney who cross-examines a former client inherently encounters divided loyalties." United States v. Voigt, 89 F.3d 1050, 1078 (3d Cir. 1996); Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987); see also Stephens, 595 F.2d at 1070; Castillo, 504 F.2d at 1245 (involving representation of government witness against second client). "In these circumstances, counsel is placed in the equivocal position of having to cross-examine his own client as an adverse witness. His zeal in defense of his client the accused is thus counterpoised against solicitude for his client the witness." Castillo, 504 F.2d at 1245. But, in keeping with the requirement for an actual, as opposed to a mere hypothetical or possible conflict, this Court has also held that something more must be shown to demonstrate that the inherent potential for conflict actually moved into the realm of an actual conflict. See, e.g., Olivares, 786 F.2d at 663-64.

That "something more" is amply demonstrated in this case. Skelton represented Fletcher at her own aggravated robbery trial, a proceeding in which she originally faced the same charge for the same murders arising from the same facts as Perillo. Skelton's prior representation of Fletcher thus occurred in the same, or at the very least, in a very closely related criminal matter. From its inception, Skelton's prior representation of Fletcher featured the denigration of Perillo as a prominent factor. Indeed, Skelton's strategy at Fletcher's criminal trial was to develop the most egregious and inculpatory evidence of Perillo's own guilt, and by comparison, Fletcher's innocence.

After Fletcher's trial, Skelton became closely aligned with the victim's interests, strongly encouraging Fletcher's involvement with the victim's families' and their attempts to independently investigate the crimes. When Briddle came to trial, Skelton strongly encouraged Fletcher to volunteer her testimony. Skelton successfully negotiated at least use, and probably full transactional, immunity in exchange for Fletcher's pre-trial statement and subsequent testimony in Briddle's trial. Thus, once again, Skelton's work product in the course of his prior representation of Fletcher led directly to the development and preservation of the most damaging evidence against Perillo, evidence that clearly ensured the death penalty at Perillo's subsequent trial. Those circumstances, and particularly the fact that Fletcher's immunity agreement (Skelton's work product in the prior representation) depended upon the truthfulness of Fletcher's incriminating testimony against Perillo, should have made the potential for conflict obvious when Pelton approached Skelton about representing Perillo. Notwithstanding those circumstances, Skelton agreed to represent Perillo. Having done so, Skelton immediately called Fletcher to apprise her of the situation. Skelton did not, however, inform Perillo concerning the details of his past representation of Fletcher.

The inherent potential for conflict arising from Skelton's prior representation of Fletcher would never have come to fruition if Fletcher had not been subpoenaed to testify at Perillo's trial. But she was, and at Fletcher's request, Skelton left Perillo's trial and went to California to represent Fletcher's interests. Thus, Skelton agreed to represent the state's star witness after Perillo's trial began, and this is not a case of purely serial representation. See Perillo I, 79 F.3d at 449.(11)

As Fletcher's counsel at the California hearing, Skelton owed Fletcher the "unfettered duty of complete, legitimate support, not the task of undermining and tearing down" her credibility or his earlier work on her behalf. Stephens, 595 F.2d at 1070; see also United States v. Winkle, 722 F.2d 605 (10th Cir. 1983) (vacating conviction and remanding for determination of whether potential conflict blossomed into actual conflict where defense counsel previously represented government witness in a related civil dispute); Alvarez, 580 F.2d at 1258 (recognizing the "conflict inherent in allowing defense counsel to simultaneously to advise a codefendant who has agreed to testify for the government."); United States v. Mahar, 550 F.2d 1005, 1008-09 (5th Cir. 1977) (same). "A lawyer's role encompasses much more than simply advising a prospective witness to tell the truth; he must take additional steps to prepare him [or her] to testify." Alvarez, 580 F.2d at 1258; see also id. ("It is during this preparatory stage that defense counsel is torn between serving the witness' best interests in fully cooperating with the government in supplying credible testimony and the accused's obvious desire to discredit the witness' testimony. The Constitution does not countenance such divided loyalties."). Although both of Skelton's clients wanted to avoid Fletcher's testimony, their reasons for doing so were very different. Once Fletcher was directed to return to Texas, that potential conflict between the two women's interests ripened into an actual conflict. From that moment on, Fletcher needed to testify, as she did at Briddle's trial, that she was not in the house when the murders occurred. Perillo needed to show that Fletcher was more actively involved in the offenses, to impeach Fletcher's credibility, to minimize the effect of her testimony, and to highlight the disparity in punishment for comparable conduct.

Skelton was laboring under an actual conflict because he had to choose between undermining the work product resulting from his prior representation of Fletcher by exposing her to perjury charges and vigorously pursuing the impeachment of Fletcher. Perillo has established that Skelton either knew or should have known prior to Fletcher's testimony that Perillo's version of the facts reflected a more active involvement by Fletcher. That information was helpful to Perillo, in that it would further Skelton's trial strategy by demonstrating that Briddle had even greater control over Fletcher and by highlighting the potential disparity between Fletcher' five year probated sentence and the potential death sentence in Perillo's case. That information was potentially devastating to Fletcher, in that proof that she was more actively involved than she had admitted at Briddle's trial would, at the very least, subject her to criminal perjury charges. See Placente, 81 F.3d at 558-59 (an actual conflict may exist when "counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing"); Perillo I, 79 F.3d at 447 (an actual conflict may exist "when one client would benefit by a person testifying and one client would be harmed by it."); Nealy, 782 F.2d at 1365 ("A defendant is entitled to an attorney who can make a decision to use or not to use testimony unfettered by the effect of that decision on his other client's case.") (internal alternations and quotations omitted). Further, Fletcher was testifying pursuant to a grant of immunity that was either negotiated by Skelton or obtained during the course of his representation of Fletcher. An actual conflict exists when "counsel, unknown to the accused and without his [or her] knowledgeable assent, is in a duplicitous position where his [or her] full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others." Alvarez, 580 F.2d at 1254. Once Fletcher took the stand, Skelton was in no position to undermine the validity of Fletcher's immunity agreement, which was either negotiated by him or obtained during the course of his representation of Fletcher. See Stephens, 595 F.2d at 1070; seealso Winkle, 722 F.2d 605.

Skelton's agreement to represent Fletcher after Perillo's trial began makes this case most closely analogous to those cases in which counsel is still actively representing the potentially adverse interest close to or during trial. In such cases, as in this one, the actual conflict is most apparent when defense counsel cross-examined the former client. For example, in Alvarez, 580 F.2d 1251, defense counsel represented multiple clients in a drug conspiracy case. All of counsel's clients except one pleaded guilty. When the government identified two of defense counsel's former clients as potential government witnesses in the remaining defendant's trial, counsel represented those former clients in a motion to resist testifying at the remaining defendant's trial. See id. at 1254. Counsel lost the battle when, as in Perillo's case, the government agreed to grant the two testifying clients immunity. The Court held that, at this point, and even before the trial started, there was an actual conflict arising out of counsel's "irreconcilable task of at once bolstering [to protect their rights under their plea agreement] and discrediting [to protect the rights of the remaining defendant] the testimony" of the two potential witnesses. Id. at 1257. We expressly held that even the pre-trial conflict would be sufficient to support its decision reversing the convictions. See id. Counsel then went on to conduct a very limited cross-examination of his former clients. See id. at 1258.

As in Alvarez, this case involves defense counsel's active representation of a former client's interests while that client was on the stand testifying against defense counsel's current client. Skelton's own testimony, as well as the remaining record evidence, demonstrates that Skelton thought he could avoid the obvious conflict with a strategy intended to reconcile Fletcher's and Perillo's divergent interests. Thus, Skelton started with the premise that Fletcher's testimony was "set in stone," which simultaneously protected Fletcher's interests and limited the defensive theories available to Perillo. The blended result of Skelton's choice was an illogical and internally inconsistent trial strategy that eludes precise statement and, as developed supra, is simply not borne out in the record.

Finally, we note that an actual conflict may exist when an attorney represents two clients whose interests in the outcome of a matter are different. See Perillo I, 79 F.3d at 447. That Perillo and Fletcher had divergent interests with respect to the outcome of Perillo's trial is made painfully obvious by Fletcher's testimony that she was "pleased" with the outcome of Perillo's trial and that she does not care whether Perillo gets the death penalty. Likewise, Skelton's continuing relationship with Fletcher, even to the point of obstructing Perillo's access to Fletcher for purposes of this habeas proceeding, highlights the reality of his two client's divergent interests in the outcome of Perillo's trial.(12)

The Director maintains that any actual conflict was completely dissipated by Will Gray's appearance on Fletcher's behalf at Perillo's trial. We disagree. The record establishes that Skelton continued to actively represent Fletcher's interests, even after Fletcher's afternoon meeting with Gray. Indeed, Skelton protected Fletcher from perjury charges and ensured that Fletcher's testimony would be consistent with her prior testimony by refreshing her recollection in a private consultation the night before her testimony. Skelton also ignored his duty to Perillo and protected Fletcher's interests by refusing Perillo's demands that he question Fletcher on inconsistencies and falsehoods in her testimony that Perillo has testified were intended to make Perillo look like the ringleader and to minimize Fletcher's own involvement. See Winkle, 722 F.2d at 609 (the inherent danger when counsel proposes to cross-examine a former client "is in what the advocate finds himself compelled to refrain from doing") (internal quotations omitted). Significantly, although Gray appeared briefly at Perillo's trial on Fletcher's behalf, both Skelton and Fletcher rejected Gray's only substantive advice by refusing to pursue a course that would permit Fletcher to invoke her attorney-client privilege. Instead, Skelton coached Fletcher through an elaborated version of her prior testimony, once again elevating her interests over Perillo's by ensuring that Fletcher's prior testimony went unchallenged. While Skelton's continued advice to Fletcher the evening before the trial and coached cross-examination at trial technically occurred within that exceedingly narrow window of time, indeed a matter of hours, that Will Gray at least ostensibly replaced Skelton as Fletcher's lawyer, Skelton's relationship with Fletcher during that time was at least the type of functional equivalent of representation that may give rise to fiduciary duties. See Beets, 65 F.3d at 1267 (noting that Wood v. Georgia, 101 S. Ct. 1097 (1981) did not clearly state whether one of the competing obligations in that case arose from a formal attorney-client relationship, and stating that "the lawyer was at least in the functional equivalent of a joint representation"); see alsoUnited States v. Malpiedi, 62 F.3d at 467-69 (finding that counsel was burdened by an actual conflict arising from counsel's informal advice to a grand jury witness notwithstanding the attorney's opinion that there was no attorney-client relationship, that his communications with the witness was solely for the purposes of assisting his client, and that the witness was "fair-game" for cross-examination"); Querner v. Rindfuss, 966 S.W.2d 661, 667-68 (Tex. Ct. App.--San Antonio, writ denied) (recognizing that an attorney's advice may give rise to an informal fiduciary duty even when no formal attorney-client relationship is formed). That Skelton asked someone else to consult with Fletcher on a limited issue and then rejected that lawyer's advice cannot, in this case, vitiate the obvious conflict arising from Skelton's prior, concurrent, and in fact continuing relationship with Fletcher.

The Director also argues that any duty owed to Fletcher was obviated by her consent to Skelton's dual representation, or by her waiver of the attorney-client privilege between she and Skelton. Contrary to that position, there is no evidence in this record that Fletcher made an informed decision to consent to Skelton's diligent representation of Perillo, even if that representation would serve to compromise her own interest. Likewise, there is no record evidence that Fletcher intentionally waived her attorney-client privilege. More importantly, the Director's arguments in this regard derail the relevant inquiry by focusing exclusively upon those ethical rules intended to protect the interests of a former client for the proposition that a subsequent client simply has no interests to protect. The point is not whether Skelton's obligation to Fletcher may, with the benefit of hindsight, be technically negated. Rather, the point is whether Skelton compromised his duty of loyalty and zealous advocacy to Perillo by choosing between or attempting to blend the divergent interests of his former and current client. See Strickland, 104 S. Ct. at 2064-67; Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255, 1258. The injury arising from such a compromise is not lessened by a showing that counsel did not simultaneously trample upon the rights of his or her former client. Indeed, the very essence of a conflict of interest is that it requires counsel to make a choice between competing interests, and Perillo would not be able to show adverse effect if Skelton had not chosen Fletcher's interest over her own. Therefore, while we consider Skelton's continuing duties of confidentiality and loyalty to Fletcher to be strong and important evidence of Skelton's actual conflict in this case, we do not hold that a habeas petitioner can never prevail in a case involving successive representation absent proof that counsel owed some discrete and unavoidable legal duty to the former client. Our focus must remain at all times upon the adequacy of the complaining defendant's representation. See Strickland, 104 S. Ct. at 2064-67; Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255,

We emphasize that this is not a case where the defendant sat idly by without complaint as to the substance of the government witness' testimony, or where the defendant actually agreed with or relied upon the government witness' testimony. See Alvarez, 580 F.2d at 1259 (finding conflict where defendant vociferously objected to the substance of the first client's testimony and stating that there is no actual conflict where the defendant agrees with or concedes the substance of the first client's testimony). Perillo vigorously protested the accuracy of Fletcher's testimony as it was occurring and urged Skelton to cross-examine Fletcher on particular factual issues relating to Fletcher's own involvement. Likewise, this is not a case in which the defendant, fully informed of the relationship between her counsel and the state's witness, nonetheless insisted upon representation by a particular lawyer, only to turn around and claim on collateral review that such representation was constitutionally deficient . See, e.g., United States v. Casiano, 929 F.2d 1046 (5th Cir. 1991); Olivares, 786 F.2d 659. Perillo's objection to counsel regarding the substance of Fletcher's testimony and her lawyer's refusal to follow her instructions are amply supported in this record.

We affirm the district court's conclusion that Perillo has established by a preponderance of the evidence that Skelton was "torn in his loyalty and unable to make a decision purely in the interest of [Perillo] . . . to whom he owed undivided allegiance." Nealy, 782 F.2d at 1366. Having established that Skelton's representation of Perillo at trial was burdened by an actual conflict, we now examine whether that conflict adversely affected Skelton's representation of Perillo at trial.

VI.

Cuyler's adverse effect standard is set intentionally lower than Strickland's actual prejudice standard. Under Strickland, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S. Ct. at 2068. Under Cuyler, the focus is upon whether the actual conflict burdening counsel's performance had an actual and adverse effect on counsel's performance. Once it is established that there was an adverse effect on counsel's performance, prejudice, in terms of an effect on the outcome of the defendant's trial, is presumed. SeeBeets, 65 F.3d at 1265.(13)

An adverse effect on counsel's performance may be shown with evidence that counsel's judgment was actually "fettered by concern" over the effect of certain trial decisions on other clients. Perillo I, 79 F.3d at 448. As we held in Perillo I, when a petitioner's claim is premised solely upon what a conflicted lawyer failed to do on his or her behalf, the petitioner must generally establish adverse effect by demonstrating that there was some plausible alternative defense strategy that could have been pursued, but was not, because of the actual conflict. See id. at 449 (relying upon Beets, 65 F.3d at 1284 (King,J., dissenting), which in turn relied upon the Second Circuit's test for measuring adverse effect premised upon "what an attorney failed to do").(14) In this case, Perillo must show, not only that Skelton's performance was compromised, but that the compromises revealed in the record were generated by the actual conflict between Fletcher's and Perillo's interests.

The Director argues that there was no adverse effect on Skelton's performance in this case because Perillo has not demonstrated the required causal relationship between the actual conflict and any compromise in Skelton's advocacy on Perillo's behalf. The Director first argues that there can be no finding of adverse effect because Skelton subjectively believed that Fletcher's and Perillo's interests were without significant conflict. Thus, the Director maintains that, as a matter of subjective fact, Skelton did not deliberately elevate Fletcher's interests over Perillo's. We disagree. Skelton's testimony is incredible in light of abundant record evidence tending to establish that the actual conflict was painfully obvious to everyone concerned. Moreover, "[a]fter the fact testimony by a lawyer who was precluded by a conflict of interest from pursuing a strategy or tactic is not helpful. Even the most candid persons may be able to convince themselves that they actually would not have used that strategy or tactic anyway, when the alternative is a concession of ineffective assistance resulting from ethical limitations." Malpiedi, 62 F.3d at 470. We have never premised the finding of an actual conflict or adverse effect upon evidence that the attorney intentionally compromised his professional loyalties; it is enough that there was an error in judgment that adversely affected Skelton's performance. See Castillo, 504 F.2d at 1245 ("We do not ascribe to Castillo's appointed attorney nor to the appointing judge improper motives, but they are chargeable with an error of judgment fatal to a fair trial.").

Similarly, the Director argues there can be no finding of adverse effect because Skelton subjectively believed that impeaching Fletcher would not have aided Perillo's defense. "But a showing of adverse effect does not require a but for inquiry." Nealy, 782 F.2d at 1365 (finding adverse effect where the record suggested that defense counsel decided against calling a particular witness because he feared the witness would harm the petitioner's case, rather than because he also represented the potential witness); see also Malpiedi, 62 F.3d at 469. To the contrary, the defendant need only establish that there was a plausible alternative defensive strategy that could have been pursued, but was not because of the actual conflict of interest.

We conclude that Perillo has proven that Skelton's performance was adversely affected by the actual conflict of interest between Fletcher's and Perillo's interests. The record demonstrates that Skelton's representation of Perillo was fettered by competing concerns for Fletcher's welfare from the moment the state subpoenaed Fletcher to testify. That conflict was apparent in Skelton's pretrial advocacy, including his decision to protect Fletcher's interests by securing Gray's advice on how to handle Fletcher's testimony, by reviewing Fletcher's testimony to ensure that her Perillo testimony would be completely consistent with her Briddle testimony, and by his adoption of trial strategies that would bolster Fletcher's credibility, treat her as a friendly witness, and permit Fletcher's damaging Briddle testimony to remain "set in stone." The adverse effect on Skelton's performance is most dramatically illustrated by the content and structure of Skelton's cross-examination of Fletcher, together with his attendant refusal to follow Perillo's explicit instructions by vigorously cross-examining Fletcher and his refusal to allow Perillo to testify. That adverse effect is also illustrated by Skelton's desperate retreat to a completely illogical defensive position during the guilt phase, in which Skelton's only offering on Perillo's behalf was to have a police officer repeat the most damaging elements of the state's case against Perillo, as supplemented by the even more incriminating and inadmissible facts contained in Perillo's unsigned second statement. We have no trouble concluding, based upon the particular factual context of this case, that Skelton compromised his duty of loyalty to Perillo, his capital client on trial, in order to accommodate his concurrent duty to avoid undermining his work product on Fletcher's behalf by exposing her to prosecution for perjury. Skelton may have convinced himself that the accommodation he crafted between the two women's interests would be good for both, but Perillo had the right to counsel unfettered by these competing concerns. See, e.g., Nealy, 782 F.2d at 1365.

Perillo has also demonstrated that there were plausible alternative defense strategies that could have been pursued, but were not, because of the actual conflict between Fletcher's and Perillo's interests. Those plausible alternatives are detailed in our prior opinion, as well as in the district court's order. See, e.g., Perillo I, 79 F.3d at 450-51 & n.12. Having reviewed the entire record, including the record on remand, we are persuaded that Skelton's failure to pursue these plausible alternatives, which could only have strengthened Perillo's defense under Skelton's chosen trial strategy, was in fact caused by the actual conflict between his obligations to Fletcher and Perillo. We therefore hold that Skelton's representation of Perillo was burdened by an actual conflict which adversely affected Skelton's performance throughout Perillo's trial.

Murphy v. Johnson (5th Cir) Habeas appeal on "(1) whether the district court erred in refusing to grant Murphy's request for discovery and an evidentiary hearing; and (2) whether the district court erred in denying Murphy's claim that the grand jury selection process of Grayson County, Texas, violated his Sixth and Fourteenth Amendment rights."

B. Grand Jury Selection in Grayson County

In this second issue, Murphy contends that the grand jury selection process in Grayson County systematically excludes young people in violation of his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection. He correctly notes that the Sixth Amendment has been construed to require a petit jury to be drawn from a fair cross-section of the community in which the proceedings are held. See Taylor v. Louisiana, 95 S. Ct. 692 (1975). He argues that the fair cross-section requirement applies to grand juries as well. See Atwell v. Blackburn, 800 F.2d 502 (5th Cir. 1986). However, as the government notes, Atwell does not specifically so hold. In fact, the Atwell court in a footnote stated "[w]e do not hold that Atwell had a right . . . to a grand jury selected under cross-sectional procedures similar to those implicated by the Sixth Amendment." Atwell, 800 F.2d at 507 n.10. In Atwell, we assumed arguendo that if Atwell did have the right to a grand jury in conformance with the cross-sectional requirements of the Sixth Amendment, that right was not violated in his case.

The government argues first that at the time Murphy's conviction became final in 1994, no Supreme Court authority dictated a rule that the fair cross-section requirement applies to state grand juries. The government suggests that the Sixth Amendment cross-section argument advanced by Murphy does not apply retroactively to his grand jury because, under Teague v. Lane, 109 S. Ct. 1060 (1989), none of the appropriate exceptions to the non-retroactive applicability of the grand jury cross-sectional requirement apply.

We are not as convinced as the government that the fair cross-section requirement of the Sixth Amendment did not apply to Murphy's grand jury, however, we are persuaded that Teague bars our consideration of Murphy's claim that the fair cross-section requirement was violated by the alleged systematic exclusion of young people by the grand jury selection process in Grayson County.

Under Teague, we are prohibited from granting habeas relief based on "new" rules of constitutional law. A rule of constitutional law is "new" under Teague, if the result sought by application of the rule was not "dictated by precedent existing at the time the defendant's conviction became final." Teague, 109 S. Ct. at 1070. Our duty is to "[s]urve[y] the legal landscape as it then existed and determine whether a state court considering [Murphy's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [sought to be applied] was required by the Constitution." Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994)(internal quotations and citations omitted). The only exceptions to the non-retroactivity principle of Teague are "for rules that would place certain primary conduct beyond the government's power to proscribe or bedrock rules of criminal procedure that are necessary to ensure a fundamentally fair trial." Felder v. Johnson, 180 F.3d 206, 211 (5th Cir.)(citing O'Dell v. Netherland, 117 S. Ct. 1969, 1973, (1997)), cert. denied, 120 S. Ct. 63 (1999).

Murphy's conviction and sentence became final for purposes of our Teague analysis on October 11, 1994, when the Supreme Court denied his petition for certiorari after his conviction was affirmed on direct review in the Texas Court of Criminal Appeals. See Murphy v. Texas, 115 S. Ct. 312 (1994). We have, therefore, limited our analysis to a survey of the legal landscape as it existed on October 11, 1994.

The government urges that when Murphy's conviction became final, there existed no precedent establishing a defendant's right to a grand jury selected in conformance with the Sixth Amendment's fair cross-section requirement. While in Atwell, we declined to explicitly hold that Atwell had a right to a grand jury which represented a fair cross-section of the community, our earlier decisions are more specific. In Curry v. Estelle, 524 F.2d 981 (5th Cir. 1975), relying on the Supreme Court's then recent decision in Taylor v. Louisiana, 95 S. Ct. 692 (1975), we held that if a defendant could establish that a grand jury pool systematically excluding a substantial and identifiable class of citizens did not represent a fair cross-section of the community, his conviction was subject to attack. See Curry, 524 F.2d at 983. We note additionally, that by October 1994, the Supreme Court had consistently held that racial discrimination in the selection of grand juries was violative of the fair cross-section requirement. See Peters v. Kiff, 92 S. Ct. 2163, 2168 (1972); Smith v. Texas, 61 S. Ct. 164, 166 (1940). Thus, at the time Murphy's conviction became final, our precedent dictated that the fair cross-section requirement of the Sixth Amendment applied to the selection process for grand juries.

Despite the foregoing, Murphy's burden under Teague, is to show that the particular result he desires was dictated by a particular precedent, that is, he must show that at the time his conviction became final, there existed precedent which would have compelled the state court to conclude that he was entitled to a grand jury comprised of a fair cross-section of the community with respect to certain age groups, more specifically, one which represented 18 to 30 year olds. In the absence of specific binding precedent prohibiting the exclusion of a specific group of individuals as violative of the fair cross-section requirement of the Sixth Amendment, Teague prohibits us from granting relief. See, e.g., Wilkerson v. Whitley, 28 F.3d 498, 508 (5th Cir. 1994)(en banc)(finding meritless, in light of the standard of proving that a result is dictated by particular precedent, the claim that cases prohibiting the exclusion of blacks from the grand jury selection process dictated the conclusion that the systematic exclusion of women from grand juries was unconstitutional).

While Murphy argues that the systematic exclusion of young people, ages 18 to 30 years old, from the grand jury selection process in Grayson County is unconstitutional because it violates the fair cross-section requirement, he has identified no precedent setting forth such a rule, and we have found none so specific. Thus, any declaration by this Court that the fair cross-section requirement of the Sixth Amendment is violated by the systematic exclusion of a group of individuals identified by their age, and any corollary finding that a grand jury selection process so excluding a specific age group is unconstitutional, would effectively announce a "new" rule of constitutional law. Under Teague, we are precluded from applying such a "new rule" to Murphy's case unless he satisfies one of the two exceptions noted above. We conclude that neither of the narrow exceptions to the Teague bar apply in this case. Having been referred to none, and having found no case dictating the result Murphy seeks, and having concluded that neither of the narrow exceptions to the Teague non-retroactivity principle apply, we are prohibited from granting the relief Murphy seeks in this issue. For similar reasons, we conclude that Murphy's alternative claim that Grayson County's grand jury selection process violates his Fourteenth Amendment right to equal protection is likewise Teague barred.

Young v. Catoe (4th Cir) "The lower court rejected Young's claims that (1) his lawyer rendered ineffective assistance during the guilt phase of Young's murder trial; and (2) his death sentence was arbitrarily and capriciously imposed because the sentencing court declined to instruct the jury that the alternative of life imprisonment would ensure that Young served a minimum of thirty years"

The crux of Young's ineffective assistance claim is that Mann, dur- ing his opening statement, abdicated his role as advocate for the defense by conceding: (1) that Young was guilty of the charge of murder, including the essential element of malice; and (2) that Young fired the shot that killed Hepler. Young contends that, had Mann con- tested the state's evidence tooth and nail, there was a reasonable prob- ability that the jury would have convicted him of manslaughter instead of murder.

a.

i.

Our precedents plainly illustrate that counsel's concession of a cli- ent's guilt does not automatically constitute deficient performance. Rather, we must heed Strickland's admonition to consider the totality of the circumstances confronting the lawyer in order to accurately evaluate the reasonableness of the conduct at issue.

In Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990), a capital habeas proceeding, we addressed the petitioner's claim that defense counsel had rendered ineffective assistance at trial by making a num- ber of remarks intended to put distance between counsel and the peti- tioner, with the result that the jury may have perceived counsel to have effectively conceded the petitioner's guilt. We acknowledged that, under Strickland, a trial strategy designed to maintain counsel's credibility with the jury could be reasonable, notwithstanding the pos- sibility of short-term harm to the defendant. The lawyer in Clozza, faced with "overpowering" proof against his client, id. at 1101, was left with the sole hope of convincing the jury to accept his character- ization of the evidence and ignore those portions of the defendant's trial testimony inconsistent with an intoxication defense. We observed that the remarks at issue indicated to the jury that defense counsel understood the gravity of the crimes as well as their horrible nature. Had counsel attempted to pass the crimes off as anything other than the atrocities that they were, his credibility with the jury would most certainly become suspect. Thus, we con- clude that counsel's remarks were consistent with his trial strategy. Id. at 1099.

Our subsequent decision in Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995), makes the point more precisely. In that case, the petitioner's lawyer, attempting to secure a guilty-but-mentally-ill verdict for his client on charges of murder and kidnaping, explicitly told the jury during his closing argument that his client was guilty of the latter. We rejected the petitioner's claim that counsel had represented him inef- fectively, noting that the evidence supporting the kidnaping charge was "overwhelming," id. at 429, and that

[i]t was important for the defense to retain some credibility so that the jury would be sympathetic to the defense wit- nesses testifying that Bell deserved mercy . . . .[T]he deci- sion to pursue a GBMI verdict was a strategic one that Bell and his trial counsel agreed to . . . . All indications lead us to conclude that the decision to concede his guilt was a rational one . . . . Id. at 428 (internal quotation marks omitted). Clozza and Bell stand for the proposition that, on occasion, it is best to risk losing the battle in the hope of winning the war. "There is a distinction which can and must be drawn between a statement or remark which amounts to a tactical retreat and one which has been called a complete surrender." Clozza, 913 F.2d at 1099. As we there- after recognized, "[s]ome remarks of complete concession may con- stitute ineffective assistance of counsel, but tactical retreats may be reasonable and necessary within the context of the entire trial, particu- larly when there is overwhelming evidence of the defendant's guilt." Bell, 72 F.3d at 429.

In Clozza, it was necessary for counsel to retreat from being identi- fied too closely with the cause of his client, if the latter were to stand any chance of benefiting from the former's credibility. In Bell, it was necessary for counsel to retreat from pursuing acquittal on the charge of kidnaping, in order to increase the likelihood that the jury would return a verdict of something less than unequivocal guilt of murder. And, in the case now before us, it was necessary for counsel to retreat from an unlikely acquittal of a patently guilty client, so that he might attain the more realistic goal of saving the client's life.

That was, at least, the reasoning of the PCR Court, which found that, in the face of "an overwhelmingly strong case" against Young, counsel felt that the best way to save [Young's] life was if he gave the jury the appearance that he was willing for the truth to come out concerning the murder and was remorseful for his role in it . . . . Obviously, counsel's concession is consistent with the overall strategy of conceding that [Young] was technically guilty of murder but did not deserve the death penalty. J.A. 1738-39. The court concluded that "counsel's strategic decision -- made only after investigation and with [Young's] express approval-- was reasonable." J.A. 1726.

With regard to the Sixth Amendment's requirement that trial coun- sel render competent assistance, the PCR Court's interpretation of the applicable Supreme Court precedents is largely in accord with our own, as evidenced by the similarities in circumstances, analysis, and result between this case on one hand, and Clozza and Bell on the other. Insofar as one could argue, however, that the PCR Court's deci- sion is an extension of Strickland and its progeny beyond the limits of what we have previously sanctioned, it nevertheless does not repre- sent an unreasonable application of clearly established federal law. Consequently, paying strict heed to the standard of review set forth in § 2254(d)(1), we must uphold the PCR Court's conclusion that Mann's concession of Young's guilt did not constitute deficient performance.

ii.

We likewise sustain the PCR Court's ruling that Mann acted rea- sonably in admitting that Young had fired the fatal shot, even though the state's evidence ultimately proved inconclusive on this point. Given the defense theory that Young had more or less accidentally discharged the pistol, Mann needed to associate Young's actions with the shot to Hepler's back, rather than the execution-style coup de grce administered afterward. The basis for Mann's argument was, of course, what Young had repeatedly told him during their interviews, which was later confirmed by Young's trial testimony that Bell had fired toward Hepler's head.

Moreover, putting the state to its proof regarding who fired which shot would have served little purpose, inasmuch as Young's convic- tion did not rest on his having actually inflicted the fatal wound. The trial court instructed the jury consistently with South Carolina's "hand of one, hand of all" doctrine: "[W]hen two or more persons aid, encourage, and abet each other in the commission of a crime, all being present, all are principals and equally guilty." State v. Hicks, 185 S.E.2d 746, 748 (S.C. 1971) (citation omitted). The jury was not instructed that, to convict Young, it had to first rule out Bell as the deliverer of the mortal wound. In essence, then, Young had much to gain and little to lose from Mann's "concession."

b.

Even were we persuaded that the PCR Court unreasonably applied clearly established federal law in concluding that Mann's trial perfor- mance was adequate, we would still be constrained to deny relief in this case because we can find no fault with the PCR Court's alterna- tive holding that Young suffered no prejudice as the result of Mann's allegedly defective representation. Put simply, Young's own state- ments admitted all of the facts required for a conviction, and those statements were unaffected by the performance of his lawyer.

Young's statements were introduced through two sources: (1) the arresting officer; and (2) Young himself. At trial, the officer testified that the following exchange took place between himself and Young after the arrest:

[Officer]: [H]e said that he and John Glenn and William Bell, Jr. were together on the night of Wednesday, August 31st; he says that they all walked around to the West Frank- lin Street School and they saw a car parked outside and they went through the car. At that time Kevin Young said,"I shot him. I'm the one who shot him. I pulled the trigger. William Bell shot him too."

At that time I asked, "Why did you shoot him?"

And Kevin Young replied, "I don't know, man. I just shot him. Bell shot him, too."

J.A. 774.

Between the statement to the officer and Young's in-court testi- mony (summarized supra at 11-12), Young admitted that: (1) he had fired a shot against Hepler and hit him in the back; and (2) he shot Hepler during the course of an armed robbery in which he was an active and willing participant. Young's own testimony therefore established that he shot Hepler while intentionally and wrongfully holding the principal at bay so that Bell could rob him.

Thus, from Young's undisputed statements alone, there was direct evidence that Young killed the victim in the course of an armed rob- bery -- an "aggravating circumstance" justifying the death penalty under South Carolina law. We are convinced that there was no rea- sonable probability that the jury in this case would have returned a verdict of manslaughter absent the purported errors of counsel.

We decline Young's invitation to presume prejudice from his coun- sel's trial performance. In an extraordinary situation, a petitioner may be relieved of making a specific showing of prejudice in support of his ineffective assistance claim. That approach, however, is appropri- ately limited to those rare cases where the petitioner has been denied counsel at a critical stage of the court proceedings, or where counsel "entirely fails to subject the prosecution's case to meaningful adver- sarial testing[.]" United States v. Cronic, 466 U.S. 648, 658-60 & n.25 (1984). Young was in no way denied counsel, and the latter situation is not present here.

Habeas Cases

Roberts v. Delo (8th Cir) Prosecutor's comments, while improper, did not deprive Roberts of due process or require retrial; failure of counsel to raise plain-error issues in direct appeal from conviction did not constitute ineffective assistance of counsel.

Truman v. Johnson (5th Cir) Truman argues that Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994), dictates that his convictions violate principles of double jeopardy because the assessment of the controlled substance tax and/or the levy against his credit union account constituted punishment within the meaning of the Double Jeopardy Clause. . . . Given the expansive definition of a new constitutional rule, Teague bars this Court from considering the merits of Truman's argument. Kurth Ranch does not seem to be dictated by the precedent available at the time Truman's conviction became final In the interests of finality and comity, Kurth Ranch should be considered a new rule that bars this Court from considering the merits of Truman's claim.

Elzy v. United States (6th Cir) "Elzy's motion claims that the Government breached the terms of the written plea agreement pursuant to which he was convicted and sentenced, a claim Elzy did not raise either at sentencing or on direct appeal. The district court denied the motion on its merits. Because we hold that Elzy's claim is procedurally defaulted and he has not demonstrated the cause and prejudice required to excuse that default, we AFFIRM the dismissal of the motion without reaching its merits."

Morgan v. Bennett (2nd Cir) Remand ordered in "petition for habeas corpus alleging deprivation of rights to confer with counsel and to confront witnesses" to resolve factual disputes.

Barger v. USA (8th Cir) Barger failed to establish that she directed her attorney to file a notice of appeal following her conviction on drug charges, and counsel's failure to file the appeal did not deprive Barger of effective assistance of counsel.

Section 1983 & Related Filings

Park v. US Forest Service (8th Cir) Member of Rainbow Family subjected to Forest Service checkpoint searches did not have standing to sue to halt use of the checkpoints as she failed to show, at the commencement of the litigation, that there was a significant probability the Service would use an unconstitutional checkpoint in the future.

Gardenshire v. Schubert (6th Cir) Plaintiffs allege "that Chief Schubert violated their civil rights, in violation of 42 U.S.C. § 1983, by arresting them without probable cause and refusing to arrest and to prosecute their neighbor for burglarizing their retail business. Chief Schubert filed a motion for summary judgment based on qualified immunity, which the district court denied. This interlocutory appeal followed, and raises the same questions presented in the court below. For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court."

Schwenk v. Mitchell (9th Cir) "Schwenk sued various prison officials including Mitchell both under Section 1983, for a violation of her Eighth Amendment rights, and under the Gender Motivated Violence Act (GMVA).2 Mitchell's summary judgment motion was based on qualified immunity. With respect to Schwenk's Section 1983 claim, Mitchell argues that he is entitled to qualified immunity because the allegations amount only to sexual harassment and not to the sort of sexual attack proscribed by the Eighth Amendment. With respect to Schwenk's GMVA claim, Mitchell asserts that he is entitled to qualified immunity ecause the constitutionality of the Act was not clearly established and its applicability under the circumstances of this particular assault was far from clear. For the reasons set forth below, we hold that the district court properly denied Mitchell's motion on the Section 1983 claim, but erred with respect to the GMVA."

Gardenshire v. Schubert (6th Cir) Plaintiffs allege "that Chief Schubert violated their civil rights, in violation of 42 U.S.C. § 1983, by arresting them without probable cause and refusing to arrest and to prosecute their neighbor for burglarizing their retail business. Chief Schubert filed a motion for summary judgment based on qualified immunity, which the district court denied. This interlocutory appeal followed, and raises the same questions presented in the court below. For the following reasons, we AFFIRM in part and REVERSE in part the judgment of the district court."

Schwenk v. Mitchell (9th Cir) "Schwenk sued various prison officials including Mitchell both under Section 1983, for a violation of her Eighth Amendment rights, and under the Gender Motivated Violence Act (GMVA).2 Mitchell's summary judgment motion was based on qualified immunity. With respect to Schwenk's Section 1983 claim, Mitchell argues that he is entitled to qualified immunity because the allegations amount only to sexual harassment and not to the sort of sexual attack proscribed by the Eighth Amendment. With respect to Schwenk's GMVA claim, Mitchell asserts that he is entitled to qualified immunity ecause the constitutionality of the Act was not clearly established and its applicability under the circumstances of this particular assault was far from clear. For the reasons set forth below, we hold that the district court properly denied Mitchell's motion on the Section 1983 claim, but erred with respect to the GMVA."

In Depth

On sabbatical this week.

Errata

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