“Keeney did not affect a federal court’s discretion to hold an evidentiary hearing on material facts not adequately developed in state court, even if the hearing is not mandatory.”
How later courts described this case
- “Keeney did not affect a federal court’s discretion to hold an evidentiary hearing on material facts not adequately developed in state court, even if the hearing is not mandatory.”
Written by the judges who cited it.
The opinion
ANDERSON, Circuit Judge,
dissenting:
Respectfully, I dissent. The crucial issue is whether Burden’s counsel, Kondritzer, labored under an actual conflict of interest that adversely affected his performance because Kondritzer, while representing both Burden and Dixon, reached an understanding with the prosecutor that Dixon would not be prosecuted in exchange for his testimony against Burden. There is no disagreement as to the appropriate legal test. See Burden v. Zant, 903 F.2d 1352 (11th Cir.1990) (whether actual conflict of interest adversely affected counsel’s performance). Furthermore, the majority seems to acknowledge that an actual conflict of interest adversely affecting performance would be established upon proof that counsel, while representing two persons charged with a murder, reached an informal understanding with the prosecutor that one of the defendants would not be prosecuted in exchange for his testimony against the other. 1 Finally, there seems to be agreement that Kondritzer was in fact representing both Burden and Dixon at the crucial time, i.e., the time that the alleged “deal” for Dixon was made. I dissent because I respectfully disagree with the majority’s decision to deny relief on the basis of a purported fact finding by the district court “that Dixon did not testify under a grant of transactional immunity or pursuant to a promise that the state would not prosecute him for his part in the crimes at issue.” Opinion of Chief Judge Tjoflat at 9.
As an initial matter, I note that the majority’s factual assumption would be undermined if the state court’s factual finding that “Dixon was granted immunity from prosecution” were presumed to be correct. Even if the majority is correct in concluding that the state court’s finding is not entitled to deference, I nevertheless submit that the majority’s conclusion is erroneous. The majority assumes that the district court made a finding of fact not only that there was no formal grant of transactional immunity, but also that there was no informal understanding that Dixon would not be prosecuted if he testified against Burden. I respectfully submit that the district court did not find as a matter of fact that there was no informal understanding.
Review of the district court’s order indicates that the district court found as a fact:
After the committal hearing Mr. Kondrit-zer had informal discussions with Chief Assistant District Attorney Malone which Mr. Kondritzer remembers resulting in “an understanding, you know, as long as he testified, nothing would happen to him.”
District Court Order at 4. In the very next paragraph, the district court also found:
According to Chief Assistant District Attorney Malone, transactional immunity, if and when granted, was formally agreed to by the district attorney and all the parties. He has no recollection nor is there any other evidence of transactional immunity being granted to Henry Lee Dixon.
District Court Opinion at 5. I submit that, in context, the only reasonable reading of the district court’s order is that the district court found as a fact that there was no formal grant of transactional immunity, *777 but that the district court made no finding at all as to whether there was an informal understanding between Kondritzer and the prosecutor that Dixon would not be prosecuted if he testified against Burden.
Possibly the majority has read the phrase, “nor is there any other evidence of transactional immunity being granted to Henry Lee Dixon,” as a finding of fact that there was no informal understanding regarding Dixon. Several factors persuade me, however, that such an interpretation would be a misreading of the district court’s order. First, the language the majority cites, see Opinion of Chief Judge Tjoflat at 5, appears in the context of the district court’s discussion of a formal grant of transactional immunity. Second, my interpretation of the district court’s meaning reconciles the language the majority cites with the immediately preceding paragraph in which the district court found that Kon-dritzer remembered informal discussions with the prosecutor resulting in an understanding that nothing would happen to Dixon as long as he testified. Third, the colloquy between the court and counsel during the evidentiary hearing, see infra, reveals that the district court sharply distinguished in its mind between a formal grant of transactional immunity and an informal understanding. It is clear that the district court did not consider an informal agreement that Dixon would not be prosecuted to be a grant of immunity. Finally, when the district court said, “nor is there any other evidence of transactional immunity being granted to Henry Lee Dixon,” the district court obviously was referring to a formal grant of immunity, rather than an informal understanding that Dixon would not be prosecuted, because there was unequivocal evidence (detailed below) that there was such an informal understanding. Thus, the district court could not have said, in the face of this record, that there is no evidence of an informal understanding that Dixon would not be prosecuted.
At the evidentiary hearing, Kondritzer testified as follows on direct examination by Burden’s counsel.
Q. And as far as Henry Lee Dixon is concerned, you represented him at the preliminary hearing?
A. Yes.
Q. And after the preliminary hearing, did you have discussions with Mr. Malone about immunity and about him not being prosecuted in the case?
A. Yes, I believe so.
Q. Describe those discussions and what were the results of them.
A. Well, what I remember, informal discussions, nothing — asking him what was going to happen to Dixon and my memory of it is it was an understanding, you know, as long as he testified, nothing would happen to him.
First Supplemental Record on Appeal, Vol. 2, at 28. On cross-examination by the state, Kondritzer testified as follows:
Q. Do you recall ever having any discussions with Mr. Malone about potential immunity for Mr. Dixon?
A. Yes. I believe we — I asked him occasionally what the deal was with Mr. Dixon.
The Court: Well now, a deal doesn’t itself mean transactional immunity. Now, be more specific. What are you talking about?
Mr. Kondritzer: Well, I remember this was very unusual about being held — I thought it was unusual to hold him as a material witness and I, you know, believe I had asked Mr. Malone what, was he just going to sit in jail, you know, forever, you know, until they got around to doing something. I thought it was unusual.
The Court: But beyond that, what are you talking about? We know it’s unusual; the Superior Court judge was the one who was holding him.
Mr. Kondritzer: I believe we — you know, I believe it was understood between myself and Mr. Malone that nothing would happen to Mr. Dixon down the road. The Court: But the fact that he tells you Mr. Dixon isn’t going to be prosecuted doesn’t in and of itself say that he’s immunized when he testifies.
Mr. Kondritzer: Yes.
*778 The Court: Isn’t that right?
Mr. Kondritzer: Well, I would think if he said he’s not — if he said he’s not going to be prosecuted, wouldn’t that mean he’s— it would seem to indicate he’s immunized, if he’s not going to be prosecuted.
The Court: It wouldn’t in this court; now, it might in somebody else’s.
Mr. Kondritzer: Well, I’m — what’s—I’m confused. What’s the—
The Court: Well, I’m trying to understand what you are telling us. You just come out with a general statement that you understood so-and-so, which to me, doesn’t add up to immunity in a legal sense.
Mr. Kondritzer: Well, all I can — you know, I’m doing the best I can, your honor, and I apologize if I’m—
The Court: No, all I want you to do is tell us the facts as you remember them. Mr. Kondritzer: My memory is that I had some agreement with Mr. Malone that nothing would happen to Mr. Dixon. The Court: But you don’t recall any particular agreement, is that what you are telling us?
Mr. Kondritzer: Yes, you mean a specific—
The Court: A specific understanding, yes sir.
Mr. Kondritzer: Well, I recall an understanding and I don’t know what you mean by, you know, specific.
The Court: Well, the details of the understanding. See, an understanding is a bald conclusion.
Mr. Kondritzer: What I remember is just a — that’s what I remember is this understanding between us.
The Court: Well, do you remember anything beyond your understanding that he was not going to prosecute him?
Mr. Kondritzer: Beyond that, no sir.
Id. at 37-39. Later in his testimony, Kon-dritzer reiterated that it was his understanding with the prosecutor that Dixon would not be prosecuted. Id. at 41. Shortly thereafter, Kondritzer testified: “I remember him [the prosecutor] saying, ‘I’m not interested in Henry Dixon as long as, you know, if he’s going to testify. We’re not interested in prosecuting him,’ words to that effect.” Id. at 43.
The above colloquy between the court and counsel reveals the district court’s belief that an informal agreement not to prosecute does not constitute immunization. Thus, the district court’s statement: “nor is there any other evidence of transactional immunity being granted to Henry Lee Dixon,” was obviously referring to a formal grant of immunity and does not constitute a finding of fact that there was no informal understanding between the prosecutor and Kondritzer that Dixon would not be prosecuted.
If the district court had made such a finding, I respectfully submit that it would be clearly erroneous. There was overwhelming evidence of an informal agreement that Dixon would not be prosecuted if he testified against Burden. The very clear testimony of Kondritzer to that effect is set out above. Dixon testified at trial that he had been promised immunity for his testimony. In his closing argument to the jury at trial, the prosecutor, Malone, conceded that Dixon had been granted immunity. Finally, Mr. Moses, who inherited Burden’s case from Kondritzer and tried it to the jury, testified that it was his understanding that Kondritzer had worked out the arrangement that Dixon would not be prosecuted if he testified against Burden. Moses based his understanding upon what Kondritzer and Dixon had told Moses. Id. at 48-51, 56-57, 59. The only evidence tending to suggest that there was no such informal arrangement is prosecutor Malone’s testimony:
Q. Do you recall ever having any discussions with Mr. Kondritzer about immunity for Mr. Dixon?
A. Let me make this clear, I do not recall any conversations. That is not to say they did not occur. I do not recall them, if they did occur.
Id. at 18-19. Thus, there is unequivocal evidence from four different sources that there was an informal agreement that Dixon would not be prosecuted if he testified against Burden. The only contrary evidence is the prosecutor’s inability to recall *779 the conversations, and even this is undermined by his candid testimony that he could not testify that the conversations did not occur and, more significantly, by his contemporaneous concession that immunity was granted in his closing argument to the jury at trial.
In summary, I respectfully submit that the district court did not make a finding of fact that there was no informal understanding between the prosecutor and Kon-dritzer that Dixon would not be prosecuted if he testified against Burden. Furthermore, had the district court made such a finding, I submit that it would have been clearly erroneous.
For these reasons, I dissent.
. Because, in my judgment, the record shows that Kondritzer reached an informal understanding with the prosecutor that Dixon would not be prosecuted in exchange for his testimony against Burden, I need not reach the question whether an actual conflict of interest adversely affecting performance would be established if the evidence indicated that there was no meeting of the minds in fact, but that Kondritzer believed that there was. However, it seems likely that the effect on Kondritzer’s performance would be the same.