Opposition Brief — Dennis Spencer, Petitioner v. Colorado
Supreme Court briefApr 11, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-1157
In the
Supreme Court of the United States
DENNIS SPENCER,
Petitioner,
v.
STATE OF COLORADO,
Respondent.
________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
COLORADO COURT OF APPEALS
________________
BRIEF IN OPPOSITION
________________
PHILIP J. WEISER
Attorney General
ERIC R. OLSON
Solicitor General
Counsel of Record
Office of the Colorado
Attorney General
1300 Broadway
Denver, Colorado 80203
Eric.Olson@coag.gov
(720) 508-6000
JILLIAN J. PRICE
Deputy Attorney General
ERIN K. GRUNDY
Senior Assistant Attorney
General
DANIEL R. MAGALOTTI
Assistant Attorney
General Fellow
Counsel for Respondent
QUESTION PRESENTED
In Mickens v. Taylor, 535 U.S. 162 (2002), this
Court declared that Cuyler v. Sullivan, 446 U.S. 335
(1980), “does not clearly establish, or indeed even
support” applying the less stringent ineffective
assistance of counsel standard for conflicts involving
joint concurrent representation to other types of
potential attorney conflicts. Mickens, 535 U.S. at 175.
Should this Court grant certiorari to state how
broadly Sullivan applies when courts are converging
on
limiting
Sullivan
to
joint
concurrent
representation and, in turn, examining actual
prejudice from other claimed conflicts?
ii
RELATED PROCEEDINGS
The proceedings related to this petition include:
•
Spencer v. People, No. 21SC72, 2021
WL 4481154 (Colo. Sept. 27, 2021);
People v. Spencer, No. 17CA2228, 2020
WL 7867196 (Colo. App. Dec. 17, 2020);
People v. Spencer, Nos. 01CR1088,
01CR1089 (Denver Dist. Ct. Oct. 18,
2017).
•
People v. Spencer, No. 15SC834, 2016
WL 1104453 (Colo. Mar. 21, 2016);
People v. Spencer, No. 12CA2505, 2015
WL 4943898 (Colo. App. Aug. 20,
2015); People v. Spencer, Nos.
01CR1088, 01CR1089 (Denver Dist.
Ct. Oct. 25, 2012).
•
Spencer v. People, No. 05SC146, 2005
WL 1077713 (Colo. May 9, 2005);
People v. Spencer, No. 02CA1992, 2005
WL 82255 (Colo. App. Jan. 13, 2005);
People v. Spencer, Nos. 01CR1088,
01CR1089 (Denver Dist. Ct. Aug. 23,
2002).
iii
TABLE OF CONTENTS
QUESTION PRESENTED........................................... i
RELATED PROCEEDINGS ...................................... ii
TABLE OF AUTHORITIES....................................... iv
INTRODUCTION ........................................................ 1
STATEMENT OF THE CASE .................................... 3
I.
Petitioner was charged with sexually
assaulting three children; his counsel’s
motion to withdraw from representation was
denied; and he was convicted as charged. ........... 3
II. The postconviction court found Petitioner’s
conflict claim failed under Sullivan. .................... 4
III. The Colorado Court of Appeals determined
that Sullivan did not apply to Petitioner’s
claims..................................................................... 8
REASONS FOR DENYING THE PETITION .......... 10
I.
Appellate courts have heeded this Court’s
warning in Mickens. ............................................ 10
Federal courts of appeals do not apply
Sullivan “unblinkingly” and are
narrowing Sullivan’s reach. ........................ 10
State courts are similarly limiting
Sullivan. ....................................................... 15
II. This case is a poor vehicle because the
outcome is the same whether or not Sullivan
applies. ................................................................ 24
III. This case was correctly decided. ......................... 25
CONCLUSION .......................................................... 29
iv
TABLE OF AUTHORITIES
Cases
Ausler v. United States,
545 F.3d 1101 (8th Cir. 2008) .............................. 12
Beets v. Scott,
65 F.3d 1258 (5th Cir. 1995) .............. 10, 14, 26, 27
Bennett v. Ballard,
No. 16-0535, 2017 WL 3821805 (W.V.
Sept. 1, 2017)........................................................ 23
Brooks v. State,
__ So. 3d __, No. CR-16-1219, 2020 WL
3889028 (Ala. Crim. App. July 10,
2020) ..................................................................... 20
Chavez v. State,
12 So.3d 199 (Fla. 2009) ...................................... 16
Chester v. Comm’r of Pa. Dep’t of Corr.,
598 F. App’x 94 (3d Cir. 2015) ............................. 12
Clark v. State,
340 P.3d 757 (Or. Ct. App. 2014)......................... 21
Clark v. State,
831 P.2d 1374 (Nev. 1992) ................................... 16
Commonwealth v. Cousar,
154 A.3d 287 (Pa. 2017) ....................................... 17
Commonwealth v. Cousin,
88 N.E.3d 822 (Mass. 2018) ................................. 22
Commonwealth v. Padden,
783 A.2d 299 (Pa. Super. Ct. 2001) ..................... 17
Crawford v. State,
192 So. 3d 905 (Miss. 2015) ........................... 19, 20
v
Cruz v. United States,
188 F. App’x 908 (11th Cir. 2006).................. 10, 13
Cuyler v. Sullivan,
446 U.S. 335 (1980) .................................... 1, 26, 27
Echols v. State,
127 S.W.3d 486 (Ark. 2003) ................................. 16
Gibson v. State,
133 N.E.3d 673 (Ind. 2019) .................................. 19
Gov’t of Virgin Islands v. Zepp,
748 F.2d 125 (3d Cir. 1984) ................................. 13
Harrison v. Motley,
478 F.3d 750 (6th Cir. 2007) ................................ 10
Holloway v. Arkansas,
435 U.S. 475 (1978) .............................................. 26
Humphrey v. Commonwealth,
836 S.W.2d 865 (Ky. 1992)................................... 16
Hyman v. Brown,
927 F.3d 639 (2d Cir. 2019) ........................... 11, 13
In re Burke,
212 A.3d 189 (Vt. 2019) ....................................... 20
Johnson v. State,
No. W2014–00053–CCA–R3–PC, 2014
WL 7401989 (Tenn. Crim. App. Dec.
29, 2014) ............................................................... 20
Kiker v. State,
55 So. 3d 1060 (Miss. 2011) ................................. 18
Lee-Thomas v. United States,
921 A.2d 773 (D.C. 2007) ..................................... 23
vi
Livingston v. State,
907 P.2d 1088 (Okla. Crim. App.
1995) ..................................................................... 23
Lomax v. State,
163 S.W.3d 561 (Mo. Ct. App. 2005) ................... 20
Lowery v. State,
621 S.W.3d 140 (Ark. 2021) ................................. 16
McCargo v. Adm’r E. Jersey State Prison,
No. 18-2963, 2019 WL 11770871 (3d
Cir. 2019) ........................................................ 12, 13
Mickens v. Taylor,
535 U.S. 162 (2002) ...................................... passim
Millette v. State,
183 A.3d 1124 (R.I. 2018) .................................... 22
Noe v. United States,
601 F.3d 784 (8th Cir. 2010) .......................... 11, 25
People v. Adams,
No. 266201, 2006 WL 2924602 (Mich.
Ct. App. Oct. 12, 2006) ......................................... 21
People v. Bigger,
No. 313830, 2014 WL 4214904 (Mich.
Ct. App. Aug. 26, 2014) .................................. 17, 21
People v. Doolin,
198 P.3d 11 (Cal. 2009) ........................................ 15
People v. Frye,
959 P.2d 183 (Cal. 1998) ...................................... 15
People v. Huggins,
463 P.3d 294 (Colo. App. 2019) ..............................8
People v. Solomon,
980 N.E.2d 505 (N.Y. 2012) ................................. 23
vii
People v. Spencer,
No. 12CA2505, 2015 WL 4943898
(Colo. App. Aug. 20, 2015) .....................................4
People v. Wagner,
No. 218484, 2001 WL 1134669 (Mich.
Ct. App. Sept. 21, 2001) ....................................... 18
Phillips v. Warden, State Prison,
595 A.2d 1356 (Conn. 1991) ................................. 18
Purnell v. State,
254 A.3d 1053 (Del. 2021) .................................... 20
Rael v. Blair,
153 P.3d 657 (N.M. 2007) .................................... 22
Reynolds v. Hepp,
902 F.3d 699 (7th Cir. 2018) .......................... 11, 13
Riggs v. California,
525 U.S. 1114, 119 S. Ct. 890 (1999) ................... 22
Rowland v. Chappell,
876 F.3d 1174 (9th Cir. 2017) ........................ 10, 13
Schroeder v. State,
No. A03-1479, 2004 WL 1445074
(Minn. Ct. App. June 29, 2004) ........................... 18
Scott v. Universal Sales, Inc.,
356 P.3d 1172 (Utah 2015) .................................. 18
Simpson v. State,
No. 64529, 2015 WL 5311109 (Nev.
Sept. 10, 2015) ...................................................... 16
Skakel v. Comm’r of Corr.,
159 A.3d 109 (Conn. 2016), superseded
on reconsideration on other grounds,
188 A.3d 1 (Conn. 2018) ................................. 17, 19
viii
Sola-Morales v. State,
335 P.3d 1162 (Kan. 2014) ................................... 19
St. Hubert v. United States,
140 S. Ct. 1727 (2020) ......................................... 23
State v. Avina-Murillo,
917 N.W.2d 865 (Neb. 2018) ................................ 20
State v. Barksdale,
768 S.E.2d 126 (N.C. Ct. App. 2014) ................... 17
State v. Carlson,
440 P.3d 364 (Alaska Ct. App. 2019)................... 20
State v. Cottle,
946 A.2d 550 (N.J. 2008)...................................... 22
State v. Dhaliwal,
79 P.3d 432 (Wash. 2003) .............................. 17, 20
State v. Discola,
184 A.3d 1177 (Vt. 2018) ..................................... 18
State v. Fontenelle,
227 So. 3d 875 (La. Ct. App. 2017) ...................... 20
State v. Glick,
203 P.3d 796 (Mont. 2009) ................................... 23
State v. Griffin,
384 P.3d 186 (Utah 2016) .................................... 22
State v. Harter,
340 P.3d 440 (Haw. 2014) .................................... 23
State v. Keener,
755 N.W.2d 462 (N.D. 2008) ................................ 21
State v. Larzelere,
979 So. 2d 195 (Fla. 2008) ................................... 16
ix
State v. Love,
594 N.W.2d 806 (Wis. 1999) ................................ 17
State v. Loye,
289 S.E.2d 860 (N.C. Ct. App. 1982) ................... 16
State v. McDowell,
681 N.W.2d 500 (Wis. 2004) ................................ 17
State v. Mountjoy,
708 A.2d 682 (N.H. 1998)..................................... 23
State v. Ortiz,
No. 1 CA-CR 15-0624, 2016 WL
7103371 (Ariz. Ct. App. Dec. 6, 2016) ................. 20
State v. Regan,
177 P.3d 783 (Wash. Ct. App. 2008).............. 18, 20
State v. Sterling¸
661 S.E.2d 99 (S.C. 2008) .................................... 23
State v. Williams,
652 N.W.2d 844 (Iowa Ct. App. 2002 .................. 21
State v. Williams,
652 N.W.2d 844 (Iowa Ct. App. 2002) ................. 21
Steward v. Commonwealth,
397 S.W.3d 881 (Ky. 2012)................................... 16
Strickland v. Washington,
466 U.S. 668 (1984) .......................................... 1, 26
Taylor v. State,
No. A17-1892, 2018 WL 6165291
(Minn. Ct. App. Nov. 26, 2018) ...................... 18, 21
United States v. Andrews,
790 F.2d 803 (10th Cir. 1986) .............................. 14
United States v. Beckman,
787 F.3d 466 (8th Cir. 2015) .......................... 11, 12
x
United States v. Cronic,
466 U.S. 648 (1984) ............................................. 25
United States v. DeCologero,
530 F.3d 36 (1st Cir. 2008) ............................ 11, 13
United States v. Dehlinger,
740 F.3d 315 (4th Cir. 2014) .......................... 12, 13
United States v. Fuller,
312 F.3d 287 (7th Cir. 2002) ................................ 11
United States v. Garza,
429 F.3d 165 (5th Cir. 2005) .......................... 10, 14
United States v. Mata-Santana,
391 F.3d 42 (1st Cir. 2004) .................................. 27
United States v. Michaud,
925 F.2d 37 (1st Cir. 1991) .................................. 13
United States v. Rivernider,
828 F.3d 91 (2d Cir. 2016) ................................... 10
United States v. Stitt,
441 F.3d 297 (4th Cir. 2006) .......................... 12, 13
United States v. Taylor,
139 F.3d 924 (D.C. Cir. 1998) .............................. 14
United States v. Walter-Eze,
869 F.3d 891 (9th Cir. 2017) ................................ 12
United States v. Williamson,
859 F.3d 843 (10th Cir. 2017) .................. 11, 13, 27
United States v. Wright,
745 F.3d 1231 (D.C. Cir. 2014) ...................... 11, 13
Uzzle v. Commonwealth,
No. 0386-19-1, 2020 WL 7702593 (Va.
Ct. App. Dec. 29, 2020) ........................................ 20
xi
West v. People,
341 P.3d 520 (Colo. 2015) ................................ 9, 19
Rules
Sup. Ct. R. 10(a) ........................................................ 15
INTRODUCTION
Most claims of ineffective assistance of counsel
are governed by the two-prong framework set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To
prove ineffective assistance of counsel under
Strickland, a defendant must show that trial counsel’s
performance was so deficient as to be “outside the
wide range of professionally competent assistance,”
and that the deficient performance prejudiced the
defendant such that there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at
690–94. This familiar and flexible standard applies to
the panoply of ineffective assistance of counsel claims
that criminal defendants raise from their state and
federal convictions. Strickland provides a workable
standard for resolving a host of potential issues in
counsel’s performance.
When an attorney in a criminal case actively
represents two codefendants, and either counsel or a
defendant objects to joint representation, the
potential for prejudice is exceedingly high. Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). To reflect this
heightened risk, Sullivan provides that, to get
postconviction relief, a defendant need only meet a
somewhat lower standard: that their counsel labored
under an actual conflict of interest that adversely
affected the lawyer’s performance. Id. In other words,
showing prejudice is unnecessary.
In Mickens v. Taylor, this Court questioned the
expansion of Sullivan to situations other than
concurrently representing multiple clients. 535 U.S.
162, 175 (2002). It made clear that Sullivan deviates
from the ordinary prejudice articulation in
2
Strickland, but that the purpose of this relaxed
standard is not to “enforce the Canons of Legal
Ethics.” Id. at 176. This Court added that “the
language of Sullivan itself does not clearly establish,
or indeed even support, such expansive application” to
conflicts other than joint concurrent representation.
Id. at 175. Instead, Sullivan stressed the “high
probability of prejudice arising from multiple
concurrent representation, and the difficulty of
proving that prejudice.” Id.
Petitioner asks that this Court convert Sullivan
from a narrow exception to the Strickland standard
into a blanket rule to enforce the Canons of Legal
Ethics. Mickens does not support this result.
Certiorari is not appropriate for three reasons.
First, recent decisions show that both state and
federal courts are converging on the position of
limiting Sullivan to conflicts of interest involving joint
concurrent representation. The limited split below is
narrowing after Mickens.
Second, this case presents a poor vehicle for
deciding the scope of Sullivan because Petitioner’s
claim fails regardless of which standard applies. The
postconviction court analyzed Petitioner’s claims
under Sullivan, and it found there was no actual
conflict of interest that adversely affected counsel’s
performance.
Third, the case was correctly decided. Colorado’s
intermediate appellate court correctly held that
Strickland controlled Petitioner’s claims and that
Petitioner’s claims failed under Strickland.
For these reasons, certiorari should be denied.
3
STATEMENT OF THE CASE
I.
Petitioner was charged with sexually
assaulting three children; his counsel’s
motion
to
withdraw
from
representation was denied; and he was
convicted as charged.
In 2001, Petitioner was charged with sexually
assaulting his fifteen-year-old niece, B.B. Pet. App.
14a. Retained counsel represented Petitioner in the
case involving B.B. Id. at 63a.
In a separate case, Petitioner was charged with
sexually assaulting two other victims in 1992. In that
case, the Public Defender’s Office initially represented
him. Id.
A few months before trial, retained counsel
moved to withdraw from the case involving B.B.,
stating that his client no longer had the money to hire
an investigator, which counsel believed would be
important in the case. Id. at 64a–65a. Counsel also
said that he had recently had his first child, and he no
longer wished to represent clients accused of sexually
assaulting children. Id. at 65a. Retained counsel also
noted that he had represented another client on
similar charges, and he felt that the lack of an
investigator in that case contributed to a conviction.
Id.
The court discussed the matter with the Public
Defender’s Office and learned that if the court granted
the motion to withdraw, the public defender could not
be ready by the trial date for the case involving B.B.
and a continuance would be necessary. Id. at 66a.
Petitioner never requested that his retained counsel
withdraw, nor did Petitioner personally ever
4
articulate that he believed his counsel had a conflict
that prevented representation. The court denied the
motion to withdraw. Id. By consent, the cases were
joined for trial. Id. at 14a. Retained counsel
represented Petitioner in both cases. Id. at 18a. After
a jury trial, Petitioner was convicted. Id. at 14a.
II.
The
postconviction
court
found
Petitioner’s conflict claim failed under
Sullivan.
After exhausting his direct appeal, Petitioner
filed a timely postconviction motion alleging
ineffective assistance of counsel. The Denver District
Court denied his claims, concluding that he failed to
show any conflict which would entitle him to
postconviction relief under either Sullivan or
Strickland. Pet. App. 46a–60a.
On appeal, the Colorado Court of Appeals
affirmed the denial of Petitioner’s Strickland claims
without an evidentiary hearing, but the court
remanded the case for a hearing on the defendant’s
claims under Sullivan. People v. Spencer, No.
12CA2505, 2015 WL 4943898 (Colo. App. Aug. 20,
2015) (unpublished); Pet. App. 30a–44a. Colorado
argued that Petitioner had not met his burden under
Strickland’s deficient performance prong.
The postconviction court held a hearing to assess
Petitioner’s conflict-of-interest claims under Sullivan
and concluded that no actual conflict adversely
affected counsel’s representation of Petitioner. Pet.
App. 13a–27a.
Petitioner claimed that counsel’s personal
trepidation and his financial concerns about an
investigator were actual conflicts and that it
5
adversely affected his defense because trial counsel:
(1) “improperly agreed to join [the] cases”; (2) “failed
to attempt to pierce the [R]ape [S]hield [S]tatute”; (3)
“failed to request a mistrial after a juror passed a note
to the court reporter” related to “the process for
choosing godparents in [Petitioner’s] church”; (4)
“failed to investigate information that [Petitioner’s]
daughter . . . was a light sleeper and was present in
the room with B.B.”; and (5) “failed to investigate and
question B.B. at trial about [the] letter she wrote to
[Petitioner’s] wife.” Id. at 20a–21a.
At the hearing on Petitioner’s claims, Petitioner’s
trial counsel testified that they maintained a good
attorney-client
relationship
throughout
his
representation. Id. at 118a. Trial counsel explained
his initial reasons for moving to withdraw. Id. at
118a–119a.
First, during his representation of Petitioner,
counsel had his first child, and he decided that he
wished to stop representing clients accused of sexually
assaulting children. Id. He explained that “if the
person that’s accused did it, it’s difficult for me. If the
person didn’t do it, there’s something with the accuser
that’s not right. It just didn’t sit right with me
anymore, and so that was one of the reasons.” Id. at
119a.
Second, trial counsel testified that, during his
representation, Petitioner was also charged with
sexual assault of the two 1992 victims. For these
charges, the public defender, who had the benefit of
investigators, represented him. Id. Trial counsel
hoped that the public defender would take over all of
the cases and use its investigators. Id.
Third, trial counsel testified that he had tried
another case with similar facts shortly before he
6
represented Petitioner, and he believed that the case
suffered from the lack of an investigator. Id. Trial
counsel shared his concerns with Petitioner, who
always said that he “was aware of the need for an
investigator” and that he would try to get money to
pay one. Id.
Trial counsel also testified about the decisions he
made leading up to and during trial and explained
that none of those decisions were affected by the
alleged conflicts. With respect to joining B.B.’s case
with the case of involving the 1992 victims, counsel
testified that the court had ruled under Colorado Rule
of Evidence 404(b), over counsel’s objection, that
evidence of the assaults would be admissible in the
other cases. Pet. App. 127a–128a. He testified that the
conversation he had about joinder may have included
the lack of investigator but that he would not have
agreed to join the cases without his client’s consent.
Id. at 128a–129a. He testified that there were
strategic advantages to both joinder and severance.
Id. at 129a, 158a–159a. Ultimately, his decision to join
the cases was not based on any of the potential
conflicts. Id. at 129a.
As for counsel’s decision not to move to pierce the
Rape Shield Statute, Counsel testified that he
believed that Petitioner’s son—who, according to the
victim, Petitioner asked to leave the room before he
assaulted B.B.—changed his story. Id. at 123a.
Counsel was not comfortable with the story that the
son was telling, but he resolved that conflict by not
calling the son in his case-in-chief, though he did
cross-examine the son when the prosecution called
him. Id. at 122a–123a. The basis for potentially
seeking to pierce the Rape Shield Statute first arose
at trial on a claim that the son had never disclosed
despite multiple pretrial interviews. Id. at 130a–132a.
7
Counsel’s decision not to pierce the Rape Shield
Statute was not motivated by the financial issues
involving an investigator. Id. at 132a–133a. Counsel
also testified that he learned in his career that people
in prison did not pay outstanding legal bills, so he had
significant incentive to keep his client out of prison
rather than to risk conviction. Id.
As for the mistrial claim, counsel explained that
he did not request a mistrial when a juror sent a note
to the court reporter about selecting godparents in
Petitioner’s church because it was clear that any
mistrial request would have been futile. Id. at 134a.
The judge declined his request to dismiss the juror,
but the court made the juror the alternate. Id. at
133a–134a, 152a. Counsel testified that no personal
or financial conflicts influenced this decision, and he
moved for a mistrial later during the proceedings
when a witness testified about prior acts. Id. at 133a–
134a. So financial concerns did not prevent counsel
from moving for a mistrial. Id.
Counsel also testified that his decision not to put
on evidence that one of Petitioner’s daughters, who
might have witnessed the assault, was a light sleeper
was based in trial strategy, not conflict. He recalled
the allegation that the assault occurred when
Petitioner’s daughter was in the same room as B.B.
Id. at 135a–136a. He declined to put on evidence that
the daughter was a light sleeper because Petitioner’s
son had told interviewers otherwise. Id. at 135a–137a.
And he thought that the light sleeper testimony was
not a persuasive defense considering the other
evidence. Id. at 137a. His decision not to call her to
testify about being a light sleeper was based on
strategic decisions and was unrelated to any conflicts.
Id.
8
Counsel explained that he limited crossexamination of B.B. about a letter she wrote to
Petitioner’s wife after she reported the allegations.
Counsel remembered the discussion at the motions
hearing about a letter B.B. wrote to Petitioner’s wife
after the charges became public, apologizing for
reporting the allegations against Petitioner. Id. at
138a. Counsel testified that the letter was not a
recantation of the allegations, but instead
demonstrated “victim’s guilt” because the allegations
caused problems in the family and in the church
community. Pet. App. 138a. He also testified that B.B.
was examined, during both direct and crossexamination, about the letter at trial. Id. at 139a.
Counsel testified that while there were some
things he would have done differently with more than
a decade of hindsight, there was nothing that the
alleged conflicts prevented him from doing or that he
would have done differently at the time. Id. at 126a–
127a.
The postconviction court found that there was no
conflict of interest that adversely affected counsel’s
performance under Sullivan, so the court denied the
motion for postconviction relief. Id. at 13a–27a.
III. The Colorado Court of Appeals
determined that Sullivan did not apply
to Petitioner’s claims.
Petitioner appealed that denial and, during the
pendency of his case, a division of the Colorado Court
of Appeals held that Sullivan is limited to situations
involving multiple-client representation. Pet. App. 6a
(citing People v. Huggins, 463 P.3d 294, 300–01 (Colo.
App. 2019), cert. denied, 2020 WL 2766453 (Colo. May
9
26, 2020)). A recent decision from the Colorado
Supreme Court also suggested that Sullivan should
not be read broadly to encompass all conflict
scenarios, based on this Court’s language in Mickens.
Pet. App. 6a (citing West v. People, 341 P.3d 520, 530
n.8 (Colo. 2015)). Based on these recent decisions, and
a full reading of Sullivan and Mickens, the Colorado
Court of Appeals held that Strickland controlled
Petitioner’s claims. Pet. App. 6a–7a. The court further
held that Petitioner’s claims were properly denied.
Pet. App. 8a.
One judge specially concurred and said that she
would have affirmed because the record supported the
postconviction court’s findings that the alleged
financial conflict of interest was only a potential
conflict, not an actual conflict, and counsel’s
representation was not affected by any of the potential
conflicts. Id. at 9a–10a. Thus, according to the
concurring judge, even if Sullivan applied,
Petitioner’s claims lacked merit.
Petitioner moved the Colorado Supreme Court
for a writ of certiorari, which was denied, though two
justices would have granted his petition. Pet. App.
11a–12a.
10
REASONS FOR DENYING THE PETITION
I.
Appellate courts have heeded this
Court’s warning in Mickens.
Federal courts of appeals do not
apply Sullivan “unblinkingly”
and are narrowing Sullivan’s
reach.
In Mickens, this Court cautioned that the federal
courts of appeals had “applied Sullivan ‘unblinkingly’
to ‘all kinds of alleged attorney ethical conflicts.’”
Mickens, 535 U.S. at 174 (quoting Beets v. Scott, 65
F.3d 1258, 1266 (5th Cir. 1995) (en banc)). That is no
longer the case. Every federal court of appeals has
either narrowed Sullivan’s reach on direct or state
habeas review, or is beginning to question whether
Sullivan should apply to conflicts other than joint
concurrent representation. Thus, the courts of appeals
are heeding the warning in Mickens, and this Court’s
intervention is unnecessary.
Petitioner concedes that four courts of appeals—
the Fifth, Sixth, Ninth (on state habeas review), and
Eleventh Circuits—have limited Sullivan to the
multiple representation context. Pet. at 19–21 (citing
United States v. Garza, 429 F.3d 165, 172 (5th Cir.
2005) (per curiam); Harrison v. Motley, 478 F.3d 750,
756 (6th Cir. 2007); Rowland v. Chappell, 876 F.3d
1174, 1192 (9th Cir. 2017); Cruz v. United States, 188
F. App’x 908, 913 (11th Cir. 2006)).
Additionally, the Second and Seventh Circuits
have restricted Sullivan in the state habeas context.
Petitioner cites United States v. Rivernider, 828 F.3d
91, 109 (2d Cir. 2016), and United States v. Fuller, 312
11
F.3d 287, 291–92 (7th Cir. 2002), to argue that those
circuits apply Sullivan broadly. Pet. at 15. But both
courts have refused to allow Sullivan to control
conflict-of-interest claims not related to concurrent
representation for habeas petitioners convicted in
state court. In Hyman v. Brown, the Second Circuit
noted that this Court “cautioned against an ‘expansive
application’ of Sullivan” and stated that the court had
“expressly relied on Mickens in refusing to extend
Sullivan to circumstances involving an attorney’s
ethical obligation to correct false testimony.” 927 F.3d
639, 670 n.30 (2d Cir. 2019) (quoting Mickens, 535
U.S. at 175). And the Seventh Circuit wrote that while
it has “assumed that Sullivan extends to financial
conflicts of interests[,] . . . Mickens makes it very
difficult” to apply that assumption on state habeas
review. Reynolds v. Hepp, 902 F.3d 699, 708–09 (7th
Cir. 2018) (emphasis added).
The remaining courts of appeals have not decided
Sullivan’s reach. Petitioner acknowledges that the
First, Eighth, Tenth, and D.C. Circuits have not yet
taken a position on whether Sullivan should govern
conflicts that do not involve joint concurrent
representation. Pet. at 24 (citing United States v.
DeCologero, 530 F.3d 36, 77 n.24 (1st Cir. 2008); Noe
v. United States, 601 F.3d 784, 790 (8th Cir. 2010);
United States v. Williamson, 859 F.3d 843, 854, 857
(10th Cir. 2017); United States v. Wright, 745 F.3d
1231, 1233 (D.C. Cir. 2014)); but see United States v.
Beckman, 787 F.3d 466, 490 n.14 (8th Cir. 2015)
12
(stating that the court would not follow Noe because it
conflicted with an earlier decision). 1
For direct review cases, the Ninth Circuit has also
not yet decided the issue. United States v. Walter-Eze,
869 F.3d 891, 900–07 (9th Cir. 2017) (noting this
Court’s cautionary language in Mickens, but stating
that “even if Sullivan’s presumption can extend, as a
matter of law, beyond the case of multiple concurrent
representations,” the defendant’s financial conflict
claims did not warrant applying Sullivan).
The Third and Fourth Circuits likewise have not
taken a firm position. Petitioner claims that these two
courts have applied Sullivan to conflicts other than
concurrent representation. Pet. at 13–15 (citing
Chester v. Comm’r of Pa. Dep’t of Corr., 598 F. App’x
94, 105–07 (3d Cir. 2015) (per curiam); United States
v. Stitt, 441 F.3d 297, 304 (4th Cir. 2006)). But in more
recent opinions, both courts have acknowledged the
question remains open. McCargo v. Adm’r E. Jersey
State Prison, No. 18-2963, 2019 WL 11770871, at *1
(3d Cir. 2019) (“We note that it is ‘an open question’
whether a presumption of prejudice standard is
applicable to attorney conflicts other than ‘multiple
concurrent representation.’” (citation omitted));
United States v. Dehlinger, 740 F.3d 315, 322 (4th Cir.
2014) (stating that “[t]he Supreme Court has
specifically reserved the question,” while “not
determin[ing] . . . whether [defense counsel’s]
1
In Beckman, the Eighth Circuit stated that it would not apply
Noe, but instead “must follow the earliest opinion,” Ausler v.
United States, 545 F.3d 1101 (8th Cir. 2008), which was decided
two years before Noe. Beckman, 787 F.3d at 490 n.14. But even
if the Eighth Circuit has an internal disagreement about how
broadly to apply Sullivan, that court can await an appropriate
case to resolve any intra-circuit conflict en banc.
13
representation was successive”); see also Pet. at 15
(noting that, in Stitt, the Fourth Circuit stated that
the question was “open”).
Additionally, the courts of appeals are moving
uniformly in one direction—the direction of adhering
to this Court’s admonition in Mickens.
Petitioner concedes that the Ninth and Eleventh
Circuit overruled previously broad applications of
Sullivan. Pet. at 20–21 (citing Rowland, 876 F.3d at
1192; Cruz, 188 F. App’x at 913). And, as described
above, the Second and Seventh Circuits are beginning
to question whether Sullivan should apply more
broadly. See Hyman, 927 F.3d at 670 n.30; Reynolds,
902 F.3d at 708–09.
Even federal courts of appeals that have not yet
adopted a position post-Mickens had applied Sullivan
broadly pre-Mickens. As noted above, the First, Third,
Fourth, Tenth, and D.C. Circuits have not decided this
question since Mickens. See DeCologero, 530 F.3d at
77 n.24; McCargo, 2019 WL 11770871, at *1;
Dehlinger, 740 F.3d at 322; Williamson, 859 F.3d at
854, 857; Wright, 745 F.3d at 1233.
But those courts applied Sullivan more broadly
before Mickens. See United States v. Michaud, 925
F.2d 37, 40 (1st Cir. 1991) (being open to applying
Sullivan when an attorney taught classes to IRS
auditors); Gov’t of Virgin Islands v. Zepp, 748 F.2d
125, 135 (3d Cir. 1984) (“[O]ur decision must not be
construed so narrowly as to encompass only those
factual situations where counsel simultaneously
represents different defendants.”); Stitt, 441 F.3d at
303 (“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
14
rejected this approach.”); United States v. Andrews,
790 F.2d 803, 811 (10th Cir. 1986) (applying Sullivan
to a conflict “generated by [counsel’s] personal desire
to devote his time and attention to pre-med studies”);
United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir.
1998) (“In the context of joint representation, [the
Sullivan] standard is more easily satisfied,” but
Sullivan can apply “when other conflicts are
alleged.”). Petitioner acknowledges that some of these
courts have begun to question the reach of Sullivan.
See Pet. at 24.
And federal courts of appeals that restricted
Sullivan before Mickens continue to do so since
Mickens. See, e.g., Garza, 429 F.3d at 172 (adhering to
Beets).
Petitioner does not cite a single court of appeals
that has moved in the direction of broadening
Sullivan’s application.
Although some courts of appeals have not yet had
occasion to decide this issue, the state of those courts
is not as it was when this Court decided Mickens. No
federal court of appeals currently “‘unblinkingly’”
applies Sullivan to conflicts that do not involve
concurrent representation. Mickens, 535 U.S. at 174
(quoting Beets, 65 F.3d at 1266). The courts of appeals
either apply Sullivan narrowly (in line with this
Court’s admonition in Mickens), have yet to decide the
issue, or are actively narrowing Sullivan’s reach.
Because it is less than clear that “a United States
court of appeals has entered a decision in conflict with
the decision of another United States court of appeals
on the same important matter,” this Court’s review is
not warranted. Sup. Ct. R. 10(a). This Court should
wait until a clear conflict arises before deciding
whether to address this issue.
15
State
courts
are
limiting Sullivan.
similarly
Since this Court decided Mickens, state courts
have moved towards limiting Sullivan to conflicts
involving joint concurrent representation. The state
courts, like the federal courts of appeals, are
uniformly moving in the direction of embracing this
Court’s admonition in Mickens. This Court need not
intervene while this split is resolving.
The California Supreme Court, for example,
limited Sullivan’s reach and overruled past decisions
that had applied Sullivan in contexts other than
concurrent representation. Compare People v. Frye,
959 P.2d 183, 241–42 (Cal. 1998) (applying Sullivan
to conflict involving defense counsel’s suspension from
practicing law), with People v. Doolin, 198 P.3d 11, 36
n.22, 41 (Cal. 2009) (overruling Frye and limiting
Sullivan to concurrent representation). Courts in
16
Arkansas, 2 Florida, 3 Kentucky, 4 Nevada, 5 North
Carolina, 6 Pennsylvania, 7 and Wisconsin 8 have
likewise narrowed Sullivan’s application.
2
Compare Echols v. State, 127 S.W.3d 486, 493–94 (Ark. 2003)
(noting that Sullivan could apply outside the concurrent
representation context), with Lowery v. State, 621 S.W.3d 140,
147 (Ark. 2021) (writing that Mickens “explain[s] that the rule
presuming prejudice has not been extended beyond cases in
which an attorney has represented more than one defendant”
and requiring a showing of prejudice when defense counsel “had
worked for a child-advocacy agency prior to representing Lowery
and was outwardly hostile to him”). Petitioner claims that Echols
shows that Arkansas applies Sullivan broadly, Pet. at 18, but
Lowery postdates Echols.
3
Compare State v. Larzelere, 979 So. 2d 195, 208–09 (Fla. 2008)
(per curiam) (analyzing a conflict claim involving financial
interests under Sullivan), with Chavez v. State, 12 So.3d 199, 212
(Fla. 2009) (holding that a “any alleged internal debate over
strategy” did not merit applying Sullivan). Thus, although
Petitioner claims that Florida is applying Sullivan to “a wide
range of claims,” Pet. at 18, the Florida Supreme Court appears
to be moving in the direction of limiting Sullivan’s application.
4
Compare Humphrey v. Commonwealth, 836 S.W.2d 865, 869–
70 (Ky. 1992) (appearing open to applying Sullivan to successive
representation conflict), with Steward v. Commonwealth, 397
S.W.3d 881, 884 & n.4 (Ky. 2012) (applying Strickland and
rejecting Sullivan for a case involving successive
representation).
5
Compare Clark v. State, 831 P.2d 1374, 1376 (Nev. 1992)
(having “no doubt” that a fee arrangement conflict merited
applying Sullivan), with Simpson v. State, No. 64529, 2015 WL
5311109, at *6 (Nev. Sept. 10, 2015) (unpublished disposition)
(citing Mickens, Beets, and Doolin and refusing to apply Sullivan
to a fee arrangement conflict).
6
Compare State v. Loye, 289 S.E.2d 860, 862–63 (N.C. Ct. App.
1982) (holding that defense counsel being under investigation for
[Footnote continued on next page]
17
Also similar to the federal courts of appeals,
many state courts that have not yet decided this
question post-Mickens previously applied Sullivan
more broadly, showing that courts are heeding this
Court’s warning in Mickens.
Courts
in
Connecticut,
Michigan,
and
Washington have not taken a position. See Skakel v.
Comm’r of Corr., 159 A.3d 109, 170 n.37 (Conn. 2016),
superseded on reconsideration on other grounds, 188
A.3d 1 (Conn. 2018); People v. Bigger, No. 313830,
2014 WL 4214904, at *2 (Mich. Ct. App. Aug. 26,
2014); State v. Dhaliwal, 79 P.3d 432, 439 n.8 (Wash.
2003). 9 But pre-Mickens, courts in all three states
applied Sullivan to a variety of claims. See Phillips v.
Warden, State Prison, 595 A.2d 1356, 1368–69 (Conn.
his participation in the defendant’s criminal conduct warranted
a presumption of prejudice), with State v. Barksdale, 768 S.E.2d
126, 130 (N.C. Ct. App. 2014) (refusing to extend Sullivan
“beyond cases involving representation of adverse parties”).
7
Compare Commonwealth v. Padden, 783 A.2d 299, 309–11
(Pa. Super. Ct. 2001) (applying Sullivan to a conflict involving
the same law firm representing the defendant and the victim),
with Commonwealth v. Cousar, 154 A.3d 287, 310–11 (Pa. 2017)
(refusing to apply Sullivan to successive representation).
8
Compare State v. Love, 594 N.W.2d 806, 808 (Wis. 1999)
(applying Sullivan to “a defendant[] who [wa]s represented at a
sentencing hearing by an attorney previously involved in the
prosecution of the same case”), with State v. McDowell, 681
N.W.2d 500, 516 (Wis. 2004) (refusing to apply Sullivan where
defense counsel “switch[ed] from the question and answer format
to the narrative format” when the defendant was testifying).
9
Petitioner contends that the Michigan and Washington
intermediate appellate courts apply Sullivan broadly. See Pet. at
18–19. But, as described below, a more recent decision from the
Michigan Courts of Appeals and a decision from the Washington
Supreme Court have noted that Sullivan’s reach is an open
question.
18
1991) (noting that Sullivan “is equally applicable in
other cases where a conflict of interest may impair an
attorney's ability to represent his client effectively”
(internal quotation marks omitted)); People v.
Wagner, No. 218484, 2001 WL 1134669, at *4 (Mich.
Ct. App. Sept. 21, 2001) (asking whether there was an
actual conflict when counsel represented the victim a
few years earlier); State v. Regan, 177 P.3d 783, 786
(Wash. Ct. App. 2008) (citing pre-Mickens decisions
that applied Sullivan broadly).
And while Minnesota and Mississippi courts
initially applied Sullivan broadly post-Mickens, those
courts later reversed themselves on their own accord.
These corrections show that state courts are open to
reexamining their own precedent at any time and
could be influenced by decisions from other
jurisdictions. Cf. State v. Discola, 184 A.3d 1177, 1189
(Vt. 2018) (“We join these states and overrule our past
case law insofar as it includes witness certainty as a
factor in assessing the reliability of a witness
identification made in suggestive circumstances.”);
Scott v. Universal Sales, Inc., 356 P.3d 1172, 1179
(Utah 2015) (“We overrule the [prior] line of cases [in
part] because . . . a strong majority of other states
follow the Restatement rule.”).
After Mickens, courts in both states continued to
apply Sullivan to different types of claims. Schroeder
v. State, No. A03-1479, 2004 WL 1445074, at *3
(Minn. Ct. App. June 29, 2004) (applying Sullivan to
successive representation); Kiker v. State, 55 So. 3d
1060, 1067 (Miss. 2011) (holding that there was a
conflict for Sullivan purposes when counsel
“represent[ed] Kiker and a witness against him”). But,
in both states, courts now adopt no position. See
Taylor v. State, No. A17-1892, 2018 WL 6165291, at
*3 n.3 (Minn. Ct. App. Nov. 26, 2018); Crawford v.
19
State, 192 So. 3d 905, 917–20 (Miss. 2015); see also
supra nn. 2 & 3 (highlighting courts in Arkansas and
Florida that have restricted Sullivan, even when
compared to earlier cases decided after Mickens).
Consistent with this Court’s language in
Mickens, state courts that narrowly applied Sullivan
before Mickens continue to do so. See, e.g., Gibson v.
State, 133 N.E.3d 673, 699 (Ind. 2019) (relying, in
part, on pre-Mickens precedent and stating that
“Indiana Courts have long been reluctant to depart
from the traditional [Strickland] analysis beyond
multiple-representation conflicts”).
And, as with the federal courts of appeals,
Petitioner does not cite a single state court that has
broadened Sullivan’s reach since Mickens.
State courts are not only uniformly moving in the
direction of limiting Sullivan, but also many state
courts are still deciding exactly how to implement this
Court’s admonition in Mickens. Petitioner recognizes
that many state high courts have not yet adopted a
position on the scope of Sullivan. See Pet. at 24–25.
But he understates how many state high courts have
not weighed in. Twenty-two state high courts have not
yet addressed whether Sullivan applies to conflicts
that do not involve joint concurrent representation.
This Court should allow state courts to continue to
coalesce around a common position before deciding
whether to take up this issue.
First, eight state high courts, including Colorado,
have recognized the question, but not yet answered it.
Along with Colorado, Petitioner correctly notes that
Connecticut, Kansas, Mississippi, and Nebraska fall
into this category. Pet. at 23–25 (citing West, 341 P.3d
at 530 n.8; Skakel, 159 A.3d at 170 n.37; Sola-Morales
v. State, 335 P.3d 1162, 1170 (Kan. 2014); Crawford,
20
192 So. 3d at 917–20; State v. Avina-Murillo, 917
N.W.2d 865, 876 (Neb. 2018)). Additionally, the
Delaware and Vermont Supreme Courts have not yet
taken a position. Purnell v. State, 254 A.3d 1053,
1112–13 (Del. 2021); In re Burke, 212 A.3d 189, 200
n.5 (Vt. 2019). Petitioner also claims that the
Washington Court of Appeals has applied Sullivan to
a broad range of conflicts. Pet. at 18 (citing Regan, 177
P.3d at 786–87). But, as noted above, the Washington
Supreme Court has said that the question remains
open. Dhaliwal, 79 P.3d at 439 n.8.
Second, although seven state intermediate
appellate courts have taken a position on whether
Sullivan applies to more than just multiple
representation conflicts, the high courts of those
states have not discussed the issue. Petitioner
correctly notes that the Alabama, Alaska, Louisiana,
Missouri, and Tennessee intermediate appellate
courts are part of this grouping. Pet. at 17–19 (citing
Brooks v. State, __ So. 3d __, No. CR-16-1219, 2020
WL 3889028, at *37–38 (Ala. Crim. App. July 10,
2020); State v. Carlson, 440 P.3d 364, 384 (Alaska Ct.
App.
2019);
State
v.
Fontenelle,
227 So. 3d 875, 885–86 (La. Ct. App. 2017); Lomax v.
State, 163 S.W.3d 561, 564 (Mo. Ct. App. 2005);
Johnson v. State, No. W2014–00053–CCA–R3–PC,
2014 WL 7401989, at *1, *4–6 (Tenn. Crim. App. Dec.
29, 2014). Additionally, intermediate appellate courts
in Arizona and Virginia have applied Sullivan
broadly, but the high courts in those states have not
weighed in. State v. Ortiz, No. 1 CA-CR 15-0624, 2016
WL 7103371, at *2–3 (Ariz. Ct. App. Dec. 6, 2016);
Uzzle v. Commonwealth, No. 0386-19-1, 2020 WL
7702593, at *7 (Va. Ct. App. Dec. 29, 2020).
Third, in four states—Iowa, Michigan,
Minnesota, and Oregon—the intermediate appellate
21
courts have noted that this issue is undecided, but
have not taken a position. Petitioner stresses
decisions from the Iowa and Minnesota intermediate
appellate courts. Pet. at 25 (citing State v. Williams,
652 N.W.2d 844, 849 & n.3 (Iowa Ct. App. 2002);
Taylor, 2018 WL 6165291, at *3 n.3). Similarly, the
Oregon Court of Appeals has not yet decided the scope
of Sullivan. Clark v. State, 340 P.3d 757, 761 (Or. Ct.
App. 2014). And Petitioner claims that the
intermediate appellate court in Michigan has applied
Sullivan broadly. Pet. at 18–19 (citing People v.
Adams, No. 266201, 2006 WL 2924602, at *2 (Mich.
Ct. App. Oct. 12, 2006)). But, as described above, a
more recent decision from that same court has noted
that “[i]t remains an open question whether a
presumption of prejudice should apply to successive
representation claims rather than Strickland.”
Bigger, 2014 WL 4214904, at *2.
Fourth, there are three states in which, since this
Court announced Mickens, no court has cited Mickens
or Sullivan to decide whether a presumption of
prejudice applies outside the multiple representation
context. Those states are Maine, North Dakota, 10 and
South Dakota.
From these categories, twenty-two state high
courts have not yet weighed in on whether Sullivan
10
The only case from North Dakota citing Sullivan and
Mickens is State v. Keener, 755 N.W.2d 462 (N.D. 2008). There,
the North Dakota Supreme Court cited Mickens and wrote,
“However, unlike other Sixth Amendment ineffective assistance
of counsel cases, which apply the Strickland standard, in cases
where the defendant alleges there was a conflict of interest due
to multiple or joint representation, the defendant does not have
to show” prejudice. Id. at 466–67. But Keener involved joint
representation, so it is unclear whether the North Dakota
Supreme Court would apply Sullivan in other contexts.
22
applies to conflicts that do not involve multiple
representation. 11 In the past, this Court has denied
certiorari when it is “prudent . . . to await review by
other courts before addressing the issue.” Riggs v.
California, 525 U.S. 1114, 119 S. Ct. 890, 892 (1999)
(Stevens, J., respecting the denial of the petition for a
writ of certiorari). The Court should do the same here
and allow further percolation of this issue in state and
federal courts.
Additionally, even among state high courts that
have applied Sullivan broadly, it is unclear whether
those courts considered this Court’s language in
Mickens. Eleven jurisdictions fall into this category.
For example, the New Mexico Supreme Court
applied Sullivan where defense counsel also
represented a prosecution witness. Rael v. Blair, 153
P.3d 657, 660 (N.M. 2007). But the New Mexico
Supreme Court did not cite Mickens, so it is unclear
whether, or to what extent, the New Mexico high court
considered this Court’s instruction in Mickens or
whether the outcome would be different with the
benefit of such language. See also Millette v. State, 183
A.3d 1124, 1131–32 (R.I. 2018); State v. Griffin, 384
P.3d 186, 205–07 (Utah 2016).
In six other jurisdictions—the District of
Columbia, Hawaii, Montana, New York, South
Carolina, and West Virginia—the high courts have
applied Sullivan broadly and cited Mickens, but have
not discussed whether this Court’s note of caution in
Mickens should limit Sullivan. See Lee-Thomas v.
11
It is also unlikely that the high courts in Massachusetts and
New Jersey will adjudicate this issue because state law provides
a more lenient standard to many conflict claims. See
Commonwealth v. Cousin, 88 N.E.3d 822, 831 n.9 (Mass. 2018);
State v. Cottle, 946 A.2d 550, 562 (N.J. 2008).
23
United States, 921 A.2d 773, 775–79 (D.C. 2007); State
v. Harter, 340 P.3d 440, 459–60 (Haw. 2014); State v.
Glick, 203 P.3d 796, 800 (Mont. 2009); People v.
Solomon, 980 N.E.2d 505, 507–08 (N.Y. 2012); State v.
Sterling¸661 S.E.2d 99, 101–02 (S.C. 2008); Bennett v.
Ballard, No. 16-0535, 2017 WL 3821805, at *7 (W.V.
Sept. 1, 2017) (memorandum decision).
And the New Hampshire and Oklahoma high
courts applied Sullivan broadly before Mickens, but
have not decided the issue since. State v. Mountjoy,
708 A.2d 682, 684 (N.H. 1998); Livingston v. State, 907
P.2d 1088, 1091–92 (Okla. Crim. App. 1995).
State courts largely understand this Court’s
warning in Mickens, as shown by those courts’
willingness to reverse or question past decisions. And
many state courts are still grappling with the question
of when to apply Sullivan. With so many state high
courts having “not yet appeared to address” the issue
“head on,” this is not the right time or the right case
for this Court to determine to which conflicts Sullivan
should apply. St. Hubert v. United States, 140 S. Ct.
1727, 1728 (2020) (Sotomayor, J., respecting the
denial of certiorari).
In sum, Petitioner exaggerates the split among
the federal courts of appeals and understates how
many state high courts have not yet decided this
question. And courts across the nation—both federal
and state—are uniformly moving in the direction of
adhering to this Court’s warning “that the language of
Sullivan itself does not clearly establish, or indeed
even support” applying the more lenient ineffective
assistance of counsel standard for attorney conflicts
outside the joint concurrent representation context.
Mickens, 535 U.S. at 175. Because any split among
lower courts is both not yet sufficiently developed and
24
disappearing over time, this Court should deny
certiorari.
II.
This case is a poor vehicle because the
outcome is the same whether or not
Sullivan applies.
Here, though the case did not involve multiple
concurrent client representation, the Colorado Court
of Appeals first remanded the case for a Sullivan
inquiry. The courts below concluded that Petitioner’s
claims failed under either Strickland or Sullivan,
because he could not show that trial counsel actively
represented conflicting interests that adversely
affected his performance. Under either standard, the
result is the same: Petitioner’s claims fail. It is thus a
poor vehicle for resolving any tension left after
Mickens.
The postconviction court applied Sullivan,
conducted an evidentiary hearing, and found no
actual conflicts of interest that adversely affected
counsel’s performance. Pet. App. 21a–27a. The court
held that, even applying Sullivan, Petitioner was not
entitled to relief. Pet. App. 21a–27a.
Though the Colorado Court of Appeals concluded
that Strickland was the appropriate standard to use
to review Petitioner’s claims, the finding below that
Petitioner lost even under Sullivan counsels against
review here.
Even assuming that Sullivan could apply to the
alleged conflicts here, this case does not rise to the
level of an actual conflict of interest that adversely
affects counsel’s performance, and under either
Strickland or Sullivan the result is the same. For the
reasons explained by postconviction court and
25
concurring judge in the Colorado Court of Appeals,
counsel did not represent conflicting interests. Pet.
App. 21a–27a, 9a–10a. The postconviction court
determined that trial counsel testified credibly that
any potential conflicts did not impact the decisions
that Petitioner challenged in his postconviction
petition. Instead, counsel’s decisions were based in
sound trial strategy and the realities of Petitioner’s
case. Id. at 21a–27a.
Petitioner argued that the only reason counsel
chose not to make certain strategic decisions—like
joining cases or not requesting a mistrial—was his
potential conflicts. The record does not support that
contention. Instead, counsel’s testimony showed that
his decisions were based on the court’s rulings and the
limitations of the evidence in the case, not on any
potential conflicts. So Petitioner’s claims failed under
any standard. Cf. Noe, 601 F.3d at 790 (“We need not
decide whether [Sullivan] applies here, because Noe’s
ineffective assistance of counsel claim fails under
either [Sullivan] or Strickland.”).
III. This case was correctly decided.
In ineffective assistance of counsel claims, a
presumption of prejudice standard applies to limited
categories of cases including the complete “deni[al of]
counsel at a critical stage” or counsel’s “fail[ure] to
subject the prosecution’s case to meaningful
adversarial testing.” United States v. Cronic, 466 U.S.
648, 658–59 (1984).
Sullivan’s presumed prejudice standard
applies only to cases in which counsel represents
multiple clients concurrently and where “the
defendant demonstrates that counsel ‘actively
26
represented conflicting interests’ and that ‘an actual
conflict of interest adversely affected his lawyer’s
performance.’” Strickland, 466 U.S. at 692 (quoting
Sullivan, 446 U.S. at 350).
Whenever a trial court improperly requires
counsel to represent codefendants over counsel’s
timely objection, reviewing courts will apply an
“automatic reversal rule. Mickens, 535 U.S. at 168
(citing Holloway v. Arkansas, 435 U.S. 475, 476–91
(1978)). Joint representation does not per se violate
the Sixth Amendment. Holloway, 435 U.S. at 482. But
because defendants are entitled to representation free
of a conflict of interest, courts have a “duty to inquire”
into joint representation before trial, subject to the
limitations of Sullivan. See Sullivan, 446 U.S. at 346–
48 (reviewing Holloway).
Recognizing this balance, the Sullivan Court
declined to apply the automatic reversal rule when
the defendant did not raise the issue before trial. Id.
at 347. The court distinguished Holloway, concluding
that a postconviction court should not apply the
presumption of prejudice or automatic reversal unless
the trial court had a credible indication of an actual
conflict before trial. Id.
In Mickens, this Court noted that Sullivan has
been “applied ‘unblinkingly’ to ‘all kinds of alleged
ethical conflicts.’” 535 U.S. at 174 (quoting Beets, 54
F.3d at 1266). “It must be said, however, that the
language of Sullivan itself does not clearly establish,
or indeed even support, such expansive application.”
Id. at 175. Thus, “until a defendant shows that his
counsel actively represented conflicting interests, he
has not established the constitutional predicate for his
claim of ineffective assistance.” Sullivan, 446 U.S. at
27
350 (emphasis added); see also Mickens, 535 U.S. at
175 (reiterating the same language).
Mickens forecloses Petitioner’s arguments. This
Court emphasized that its cases do not “establish, or
indeed even support” an “expansive application” of
applying Sullivan to conflicts that do not involve joint
concurrent representation. Id. at 175. The Court
explained that both Sullivan and Holloway “stressed
the high probability of prejudice arising from multiple
concurrent representation, and the difficulty of
proving that prejudice.” Id. This Court specifically
suggested that Sullivan should not be applied
“‘unblinkingly’” to conflicts involving “counsel’s
personal or financial interests.” Id. (quoting Beets, 65
F.3d at 1266). Those are exactly the types of conflicts
that Petitioner alleges here. This Court’s case law
does not support “the need for the Sullivan
prophylaxis” for the potential conflicts presented here,
and, indeed, Mickens militates against such an
application. Id. at 176.
If this Court were to apply Sullivan
“unblinkingly” to all possible conflict scenarios beyond
the multiple representation context, “‘the nature of
appeals in criminal cases would be dramatically
altered. The odds are that many an unsuccessful
defendant would be found nursing some disagreement
with counsel.’” Williamson, 859 F.3d at 855–56
(quoting
United
States
v.
Mata-Santana,
391 F.3d 42, 46 (1st Cir. 2004)). This result is not
supported by Holloway or Sullivan. Nor is it
consistent with this Court’s admonition “stress[ing]
the high probability of prejudice in the multiple
concurrent representation context,” and that “[n]ot all
attorney conflicts present comparable difficulties.”
Mickens, 535 U.S. at 175.
28
As this Court explained in Mickens, “[t]he
purpose of [the] Holloway and Sullivan exceptions
from the ordinary requirements of Strickland . . . is
not to enforce the Canons of Legal Ethics, but to apply
needed prophylaxis when Strickland itself is
evidently inadequate to assure vindication of the
defendant’s Sixth Amendment right to counsel.” Id. at
176. Petitioner’s proposed rule violates that clear
directive from Mickens.
The Colorado Court of Appeals decided this case
in accordance with Sullivan, Holloway, and Mickens,
and there is no deviation from existing precedent to
warrant review.
Sullivan does not apply to situations involving
counsel’s personal and financial interests, and it does
not apply to potential conflicts. Mickens, 535 U.S. at
171–72, 174. So, here, where Petitioner’s claims turn
on purported personal and financial conflicts,
Sullivan is not the appropriate standard. Under this
Court’s admonition in Mickens, such conflicts do not
warrant Sullivan’s presumption of prejudice.
Petitioner was the sole defendant in his case and did
not and does not allege any conflict involving
multiple-client representation.
This case was a correct application of existing
precent and was an unpublished, nonprecedential
decision by an intermediate appellate court. There
was no deviation from existing precedent, and a
decision here will make no difference to its resolution
because no conflicts affected counsel’s decisions. Thus,
it is a poor vehicle for resolving any lingering tension
following Mickens.
29
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
PHILIP J. WEISER
Attorney General
ERIC R. OLSON
Solicitor General
Counsel of Record
Office of the Colorado
Attorney General
1300 Broadway
10th Floor
Denver, Colorado 80203
Eric.Olson@coag.gov
(720) 508-6000
JILLIAN J. PRICE
Deputy Attorney General
ERIN K. GRUNDY
Senior Assistant Attorney
General
DANIEL R. MAGALOTTI
Assistant Attorney General
Fellow
Counsel for Respondent
April 11, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.