Petition — Cuyler v. Sullivan

4 \rl \L {i Supreme Cot t, U

[IH THE

SUPREME COURT OF THE UNITED STATES

0, 98-1832

JULIUS T, CUYLER, SuperintenDenT

AND

DISTRICT ATTORNEY OF PHILADELPHIA,

PETITIONER

V,

JOHN SULLIVAN, ResponpEeNT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

MICHAEL F. HENRY

HUES 4 COlSBLAtT .

a RISTRICT, ATTORNEY FOR LAW

ISTRICT ATTORNEY

gin CENTRE Square West n

HILADELPHIA, PENNSYLVANIA 19192

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL Provisions INVOLVED

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CaSE

REASONS FOR GRANTING THE WRIT

1. THe SrxtH AMENDMENT STANDARD OF REVIEW

TILIZED BY THE LOURT OF APPEALS FOR THE THIRD

IRCUIT IN DETERMINING CONFLICTS OF INTERESTS

FOR DEFENSE ATTORNEYS IN STATE CRIMINAL TRIALS

IS INCONSISTENT WITH STANDARDS ENUNCIATED BY

EVERY OTHER LOURT OF APPEALS AND FINDS NO

SUPPORT IN THE PRIOR DECISIONS OF THIS CouRT,

I], EVEN ASSUMING THAT THE STANDARD OF REVIEW

APPLIED BELOW IS CONSTITUTIONALLY MANDATED WHEN

COURT APPOINTED COUNSEL REPRESENTS TWO OR MORE

DEFENDANTS AT THE SAME TRIAL, THE CIRCUMSTANCES

PRESENTED HEREIN, NAMELY THE REPRESENTATION OF

RESPONDENT AND HIS SEPARATELY TRIED CO-DEFENDANTS

BY TWO PRIVATELY RETAINED ATTORNEYS, COMPELS THE

SE OF A DIFFERENT STANDARD OF REVIEW UNDER THE

SIXTH AMENDMENT,

III. THe Court BELOW VIOLATED SETTLED PRINCIPLES

F HABEAS CORPUS REVIEW, AS DETERMINED BY THIS

OURT AND LONGRESS, BY IGNORING THE FACTUAL DETER-

MINATIONS OF THE STATE COURTS, AND SUBSTITUTING

ITS OWN FINDINGS FOR THOSE OF THE STATE COURTS

AND THE J)rstrict Court,

CONCLUSION

13-19

20-28

29-33

34

APPENDICES TO THE BRIEF

Appenpix_A: Orper oF THE CourT oF APPEALS

FOR THE THIRD CIRCUIT DENYING PETITION FOR

REHEARING IN BANC, WITH DISSENTING OPINION

APPENDIX 8: OPINION OF THE CouRT oF APPEALS

GRANTING WRIT OF HABEAS CORPUS

Appendix C: Opinion oF THE District Court,

INCORPORATING IN PART AND REJECTING IN PART

THE REPORT AND RECOMMENDATION OF THE UNITED

TATES MAGISTRATE

AppenpiIx.D: OPINION OF THE PENNSYLVANIA

SUPREME COURT DENYING POST CONVICTION RELIEF

Appenpix_E: OPINION OF THE PENNSYLVANIA

SUPREME COURT AFFIRMING JUDGMENT OF SENTENCE

PPENDIX F: OPINION OF THE CouRT oF ComMON

LEAS DENYING POST CONVICTION RELIEF

[]

TABLE OF CITATIONS

a (CONTINUED)

FEDERAL CASES PAGE e Pia

ARGERS INGER. Yi, HAMLIN, aa7’U.S.-25, $2 $.- Er, 93 FEDERAL CASES

Austin v, Erickson, 477 F.2p 620 (8TH Cir. 1973) 18 MaLLORS Geant, KI S.S. WS, HES. Oa oe

e AVERY Vs STATE BiiggtAbama, 308 U.S. 4M4, 60S. * House v. Mayo, 324 U.S. 42, 65S, Cr, S17 (1945) 23

BERAN Xs YNITED STATES, 580 F.9D. 324 (8TH CUR. KAPLAN V. BomBARD, 573 F,2p 708 (2p Cir, 1978) 16

ch oi ean Lanny BUFEAGO SHIETaY. STATE QE SOUTH DaKorA,

CRAIG U S > aa Fe 5 ;

° a et ee ey ae ee ew i. LAVALLEE.V» Daub Rose, 410 U.S. 690, 938. Cr,

Davipson v. Cupp, 446 F,2p 642 (StH Cir, 1971) 17 LOLLAR Ys Unrtep States, 376 F.2p 243 (D.C. Cir,

FITZGERALD V, ESTELLE 505 Fae 1334 (STH Cir.), 1967) 18,27

CERT. DENteD, 422 U.S, i011 (1975) 24 MARZU b92\ MARYLAND, bl F.2D 540 Cary Cir,

FoxwoRTH_v, W sHT, 516 F, ; IS » CERT ,_DEN Max HARYLAND V.

a RY.V» WAINWRIGHT 2p 1072 (StH Cir » ‘i Hazytco, hac FNaE toll, Gomer CORYERNR .

Fryar_y, Unrtep States, 404 F,2p 107] (1 CIR,

1868) GENT RENTED, 495 fps OG by AGaH CIR 7 McMany,y, BigyaRpson, 397 U.S, 759, 90S, Cr.

GARTON Vv, SweNsON, 497 F,2p 1137 (8TH Crr. 1974) 26 ET CERT pened, 435 Ure, 981, 8g

* GLASSER V, GNI TED States, 315 U.S. 60, 62 S, Cr. ® T. 104 (97 21

7 (1982) 14,15 PowELL v. STATE OF ALABAMA, 287 U.S, 45 (1932) 23

sine’, 6). shpiahlnad dew ln ole aan Scumipt v. Hewitt, 573 F.2p 794 (3p Cir. 1978) 30

SOODWI NY CaRDWELL, 432 F,2p 521 (6TH Cir, 96 SCOTT YaoAhLINOIS, ean UeSe ane SOS. Cr. LSS 33

ad ” THACKER BORDENKIRCHER, 590 F,2p 640 (6TH Cir,

HAGGARD V, STATE OF ALA 50 £,2n 1019, ,

REHEARING DENIED, Balla 32 ube (Sta ete, 1873) V

1377) 16 Tourer Vv, HENRERSON, 411 U.S. 258, 93 S, Cr,

HAWK V, OLSEN, 326 U.S, 271, 66S. Cr. 116 J2 (2 24

(1945) 23 Townseupy, SAIN, 372 U.S, 293, 83S, Cr. 745,

a © 10. yp

IT] IV

TABLE OF CITATIONS

(CONTINUED)

FENERAL CASES

UNITE : ATES V. AvBerti, 4 2D 878 ( IR,

Is? jesFe Rg 7BENTED. 4 i) ie 88 §3 ¢!

Unt TED STATES. v. Acvarez, 580 F,2p 1251 (StH

IR,

a STA 55) Vv, ATKINSON, 565 F.2D 185 (4TH

gre 17), RY opgreD» US.

UNITED STATES v. Bosch, 584 F,2p 1113 (lst Cir,

Curve STATES. CARRIGAN, 543 F,2p 1053 (2p

UNITED, SJATES v. Foster, 469 F,2p 1 (lst Cir,

U 7

MrTegeSas seers Moana, 23 L:@° fbdo\7ae &°"

Uni TED Stayes.. v. MarRSHALL, 488 F,2p 1169 (9TH

U ; ,

ae Mee aoe Tine CoML

UNITED S bog" ep x gra ign Darcy v. Hanpy, 203 F,2

a0 Oe

mrTeyenaeys SAD Pb DOF ds ETAT SpA

ante, S3AT gs EX REL a RREEN v. Runpte, 434 F,2p

euey STATES x R L. HagTy: DAVENPORT, 478

EN? a8) en: 3

25,26,27

16

26

16

16,26

TABLE OF CITATIONS

(CONTINUED)

FEDERAL CASES

UNITED STA i & ic REL HAYWARD V, JOHNSON, 508

D

ith, CSIR spe CRT, DENIED, 422° U.S,

Doren STATES eb: SeGhwonyy. Meme dy

INTER STATES 6% BEL. HGHoIB.¥. (STATE OOF New

oNiTeD sr ATES FX REL. 0 BB AEN v, Maroney, 423

UNITED, BTATES 5X gPGh+ Rosi nson_y, HOUSEWRIGHT,

UNITED. STATES By REL SYRLAVAN Vv. CuyLer, 593

UNITE Fr Sues R rhe BANTER,

ea tae

it 198 3) a GERT: aeEN TE ED,

HALKIYG. Xs a 408 F,2p 351 (9TH Cir,

WHITE ath Basen, 324 U.S. 760, 65 S. Cr, 978

PENNSYLVANIA CASES

COMMONNEAL THOYs SULLIVAN, 472 Pa, 129, 371 A.2p

COMMONWEALTH OY SULLIVAN, 446 Pa, 419, 286 A.2pd

VI

26

8,13,21,27

23

17

23

2,/,11,12,

2,/

TABLE OF CITATIONS

(CONTINUED)

CONSTITUTIONAL AND STATUTORY PROVISIONS

UNITED States ConsTITUTION, AMENDMENT V]

lINITED States ConstTiTUTION, AMENDMENT XIV, §]

28 U.S.C, §1254(1)

28 U.S.C, §2254(D)

A J 25, 6 (196 ) 1580,

Fe “Hoadde ES shed & 1 et ees UPPLEMENT

OTHER AUTHORITIES

ABA STANDARDS RELATING TO THE ADMINJSTRATION OF

CRAMSNAL wus ICE, AGANDER AND SEVERENCE,

2 (2p Cir, 1

COMME}TS CONFLICT OF INTEREST IN N WLTIPLE

PRESENTATION OF CRIMINAL Co-DEFENDAN

Rf ‘FF thine L. AND CRIMINOLOGY, Dee (1554)

GEER, REPRESENTATION OF TULTIPLE CRIMINAL

DEFENDANTS: ONFLICTS OF INTEREST AND

eet Rsoanes, ESTRGGPTL'AY hol

HYMAN, JOINT REPRESENTATION OF ! 7HULTIPLE

NEFENDANTS IN A RIMINAL TRIAL: THE

1ouRs S HEADACHE, 5 HorsTrRa L. Rev, 315

NoTE, ENSURING EFFECTIVE ASSISTANCE 95 CouNSEL

oR TH AGRI IM ANal Co-DEFENDANT, rt &

WANAT, CONFLIETS OF INTEREST IN CRIMINAL CASES

AND THE RIGHT TO EFFECTIVE SSIS TANCE OF

CANES eH ER5RS me

VII

4,29,30

7, 31

20

14

14

14

15

15

1

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 197_

NO,

JULIUS T, CUYLER, SuPeRINTENDENT

AND

DISTRICT ATTORNEY OF PHILADELPHIA,

ETITIONER

V,

JOHN SULLIVAN, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

THE PETITIONER, District ATTORNEY OF PHILADELPHIA,

RESPECTFULLY PRAYS THAT A WRIT OF CERTIORARI ISSUE TO REVIEW

THE JUDGMENT AND OPINION OF THE UNITED States Court oF APPEALS

FOR THE THIRD CIRCUIT ENTERED IN THE ABOVE-ENTITLED CASE ON

FEBRUARY 14, 1979,

OPINIONS BELOW

THE ORDER OF THE CouRT OF APPEALS DENYING PETITION FOR

REHEARING IN BANC, JUDGES GARTH, ADAMS AND ROSENN DISSENTING,

OFFICIALLY REPORTED AT 593 F,2p 512, 524 (3p Cir. 1979), Is set

OUT AS APPENDIX A, THE OPINION OF THE CouRT OF APPEALS,

OFFICIALLY REPORTED AT 593 F,2p 512 (3p Cir. 1979), 18 set

2 3

OUT AS APPENDIX B, THE UNREPORTED OPINION OF THE District CourT e I]. ASSUMING THAT THE ABOVE STANDARD IS COMPELLED UNDER

FOR THE EASTERN DISTRICT OF PENNSYLVANIA, ADOPTING AND INCORPOR- THE SIXTH AMENDMENT IN CASES OF JOINT REPRESENTATION AND COURT-

ATING IN PART THE REPORT AND RECOMMENDATION OF THE UNITED STATES

MAGISTRATE, IS SET OUT AS APPENDIX C, THE OPINION OF THE SUPREME

COURT OF PENNSYLVANIA DENYING POST CONVICTION RELIEF, REPORTED

AS COMMONWEALTH V, SuLLivaN, 472 Pa, 129, 371 A.2p 468 (1977),

IS SET OUT AS APPENDIX I), THE OPINION OF THE SUPREME CouRT OF

PENNSYLVANIA, AFFIRMING THE JUDGMENT OF SENTENCE, REPORTED AS

COMMONWEALTH V, SuLLIVAN, 446 Pa, 419, 286 A.2p 898 (1971), 1s

SET OUT AS APPENDIX E. THE UNREPORTED OPINION OF THE

PHILADELPHIA CourT OF ComMMON PLEAS DENYING POST CONVICTION

RELIEF IS SET OUT AS APPENDIX F,

JURISDICTION

THE ORDER OF THE CouRT OF APPEALS FOR THE THIRD CIRCUIT

WAS ENTERED ON FeBRuaRY 14, 1979, A PETITION FOR REHEARING IN

BANC WAS TIMELY FILED AND DENIED ON MarRCcH 12, 1979, Tuis

PETITION FOR CERTIORARI WAS FILED WITHIN NINETY DAYS OF THE

FINAL ORDER OF THE CouRT OF APPEALS FOR THE THIRD CIRCUIT,

THs CouRT’S JURISDICTION IS INVOKED UNDER 28 U.S.C. $1254(1)

QUESTIONS PRESENTED

I, Is THE SrxTH AMENDMENT RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL VIOLATED MERELY BY A DETERMINATION THAT

A POSSIBLE CONFLICT OF INTEREST, HOWEVER REMOTE, MAY EXIST?

APPOINTED COUNSEL, IS THE SAME STANDARD OF REVIEW REQUIRED

HEREIN, WHERE RESPONDENT AND HIS CO-DEFENDANTS WERE SEPARATELY

TRIED AND REPRESENTED BY TWO PRIVATELY RETAINED ATTORNEYS?

IT], Dip THE CourT BELOW VIOLATE SETTLED PRINCIPLES OF HABEAS

CORPUS REVIEW, AS ENUNCIATED BY THIS COURT AND CONGRESS, BY

IGNORING THE FACTUAL DETERMINATIONS OF THE STATE COURTS AND SUB-

STITUTING ITS FINDINGS FOR THOSE OF THE STATE AND DISTRICT COURTS?

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, AMENDMENT Srx,

IN ALL CRIMINAL PROCEEDINGS, THE ACCUSED SHALL ENJOY THE

RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE

STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED,

WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW,

AND TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION;

TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM; TO HAVE

COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND

TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE.

UNITED STATES CONSTITUTION, AMENDMENT FourTEEN, SECTION l,

ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND

SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED

STATES AND OF THE STATE WHEREIN THEY RESIDE, No STATE SHALL

MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES

OR IMMUNITIES OF CITIZENS OF THE UNITED STATES; NOR SHALL ANY

STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY,

WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN

ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS,

STATUTORY PROVISION INVOLVED

THe UnrteD States Cope, Act oF June 25, 1948, c 646,

62 stat. 967; As AmenDeD Nov, 2, 1966, Pus, L. 89-711,

§2, 80 stat, 1105, 28 U.S.C. $2254(p),

(D) IN ANY PROCEEDING INSTITUTED IN A FEDERAL COURT

BY AN APPLICATION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN

CUSTODY PURSUANT TO THE JUDGMENT OF A STATE COURT, A DETERMINA-

TION AFTER A HEARING ON THE MERITS OF A FACTUAL ISSUE, MADE BY

A STATE COURT OF COMPETENT JURISDICTION IN A PROCEEDING TO

WHICH THE APPLICANT FOR THE WRIT AND THE STATE OR AN OFFICER

OR AGENT THEREOF WERE PARTIES, EVIDENCED BY A WRITTEN FINDING,

WRITTEN OPINION, OR OTHER RELIABLE AND ADEQUATE WRITTEN

INDICIA, SHALL BE PRESUMED TO BE CORRECT, UNLESS THE APPLICANT

SHALL ESTABLISH OR IT SHALL OTHERWISE APPEAR, OR THE RESPONDENT

SHALL ADMIT -

(1) THAT THE MERITS OF THE FACTUAL DISPUTE WERE NOT

RESOLVED IN THE STATE COURT HEARING; ..,

(8) OR UNLESS THAT PART OF THE RECORD OF THE STATE COURT

PROCEEDING IN WHICH THE DETERMINATION OF SUCH FACTUAL ISSUE WAS

MADE, PERTINENT TO A DETERMINATION OF THE SUFFICIENCY OF THE

EVIDENCE TO SUPPORT SUCH FACTUAL DETERMINATION, IS PRODUCED

AS PROVIDED FOR HEREINAFTER, AND THE FEDERAL COURT ON A

CONSIDERATION OF SUCH PART OF THE RECORD AS A WHOLE CONCLUDES

THAT SUCH FACTUAL DETERMINATION IS NOT FAIRLY SUPPORTED BY

THE RECORD:

AND IN AN EVIDENTIARY HEARING IN THE FEDERAL COURT, WHEN DUE

PROOF OF SUCH FACTUAL DETERMINATION HAS BEEN MADE, UNLESS THE

EXISTENCE OF ONE OR MORE OF THE CIRCUMSTANCES RESPECTIVELY

SET FORTH IN PARAGRAPHS NUMBERED (1) To (7), INCLUSIVE, IS

SHOWN BY THE APPLICANT, OTHERWISE APPEARS, OR IS ADMITTED BY

THE RESPONDENT, OR UNLESS THE COURT CONCLUDES PURSUANT TO THE

PROVISIONS OF PARAGRAPH NUMBERED (8) THAT THE RECORD IN THE

STATE COURT PROCEEDING, CONSIDERED AS A WHOLE, DOES NOT FAIRLY

SUPPORT SUCH FACTUAL DETERMINATION, THE BURDEN SHALL REST UPON

THE APPLICANT TO ESTABLISH BY CONVINCING EVIDENCE THAT THE

FACTUAL DETERMINATION BY THE STATE COURT WAS ERRONEOUS,

6

STATEMENT OF THE CASE

PROCEDURAL HISTORY

RESPONDENT, JOHN SULLIVAN, WAS INDICTED BY THE PHILADELPHIA

County GRAND JuRY ON NovemBER 14, 1966, as oF NovemBER SESSIONS,

1966, Nos, 190 anp 193, EACH CHARGING MURDER, RESPONDENT'S

CO-DEFENDANTS, GREGORY CARCHIDI AND ANTHONY DIPASQUALE, WERE

ALSO INDICTED AFTER A MEDICAL EXAMINER'S INQUEST, THESE

CHARGES AROSE AS A CONSEQUENCE OF THE ASSASSINATION-LIKE

KILLINGS OF JOHN GOREY AND RITA JANDA OCCURRING ON JUNE 1/7,

1966, AT THE TEAMSTER’S LOCAL UNION HALL, TRIAL WAS HELD

BEFORE THE HONORABLE ALEXANDER F, BARBIERI AND A JURY BETWEEN

June 7, AND June 19, 1967, ON THE LATTER DATE, RESPONDENT WAS

CONVICTED OF TWO COUNTS OF FIRST DEGREE MURDER AND SENTENCED TO

LIFE IMPRISONMENT, RESPONDENT WAS REPRESENTED BY PRIVATELY

RETAINED COUNSEL, %, FRED D1Bona, Esquire, NOW A PHILADELPHIA

Court oF Common PLEAS JuDGE, AND A. CHARLES PeruTo, ESQuIRE.

BOTH COUNSEL WERE ALSO RETAINED BY RESPONDENT'S CO-DEFENDANTS,

WHO WERE EACH TRIED SEPARATELY AND ACQUITTED SUBSEQUENT TO

RESPONDENT'S TRIAL. JUDGE DIBONA ACTED AS RESPONDENT'S CHIEF

COUNSEL, WHEREAS THE ROLES WERE REVERSED IN THE TRIALS OF THE

CO-DEFENDANTS, POST TRIAL MOTIONS WERE DENIED BY A COURT

EN BANC ON JuLy 15, 1968. On Aucust 9, 1968, RESPONDENT was

SENTENCED TO TWO CONSECUTIVE TERMS OF LIFE IMPRISONMENT,

7

A DIRECT APPEAL WAS TAKEN TO THE SUPREME CouRT OF

PENNSYLVANIA, WHICH AFFIRMED THE CONVICTION BY AN EQUALLY

DIVIDED COURT, COMMONWEALTH V, SULLIVAN, 4HF Pa, 419, 286

A,2p 898 (1971) (Appenpix £, LweRA, AT 1E). In 1973,

RESPONDENT FILED A PETITION UNDER THE PENNSYLVANIA PosT

Conviction HEARING AcT,/ CHALLENGING, INTER ALIA, HIS REPRESEN-

TATION BY COUNSEL, WHO IT WAS ALLEGED, NEGLECTED TO PRESENT ANY

DEFENSE ON HIS BEHALF BECAUSE OF THEIR DUAL REPRESENTATION OF

HIS CO-DEFENDANTS. AFTER SEVERAL EVIDENTIARY HEARINGS BEFORE

THE HONORABLE ETHAN ALLEN Doty, OF THE PHILADELPHIA CouRT OF

Common PLEAS, RESPONDENT WAS GRANTED THE RIGHT TO APPEAL TO

THE PENNSYLVANIA SUPREME COURT NUNC PRO IUNC. RELIEF WAS

OTHERWISE DENIED (APPENDIX F, LNERA, AT 1F),

On FeBruary 28, 1977, THE PENNSYLVANIA SuPREME CouRT

AFFIRMED THE DECISION OF THE LOWER COURT DENYING POST. CONVICTION

RELIEF, COMMONWEALTH V, SuLiivaAn, 472 Pa, 129, 371 A.2p 468

(1977) (Appenpix D, LNERA, AT 1D). THe CourT HELD, INTER

ALLA, THAT RESPONDENT WAS NOT DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL SINCE (1) THERE WAS NO DUAL REPRESENTATION IN

THE TRADITIONAL SENSE, AND (2) THE DECISION WHETHER TO

PRESENT A DEFENSE WAS A TACTICAL DECISION, NOT BASED UPON ANY

CONFLICTING INTERESTS IN COUNSEL’S REPRESENTATION OF THE

CO-DEFENDANTS,

]

Act oF January 25, 1968, P

ET SEQ, (SuPPLEMENT 1978-1

(1965) 1589, sl, 19 P.S, $1180-1

On Jucy 18, 1977, RespoNDENT FILED HIS FOURTH PETITION®

FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES District Court

FOR THE EASTERN District OF PENNSYLVANIA, DOCKETED AS CIVIL

Action tlo, 77-2527, On Fepruary 2, 1978, Unrtep States

District JupGe JoHN MorGAN DAVIS DENIED THE PETITION, ADOPTING

IN PART TE REPORT AND RECOMMENDATION OF UNITED States

MAGISTRATE Epwin E, NaytHons (Appenpiy C, INERA, aT 10).

THE MAGISTRATE HAD RECOMMENDED THE ISSUANCE OF THE WRIT ON

SIXTH AMENDMENT GROUNDS,

RESPONDENT APPEALED ON VARIOUS GROUNDS, AND THE CASE WAS

ARGUED BEFORE A PANEL OF THE UNITED STATES Court oF APPEALS

FoR THE THIRD Circuit. On Fepruary 14, 197°, tHe Court oF

APPEALS, ON THE BASIS OF THE STATE COURT RECORD, REVERSED THE

ORDER OF THE UNITED States District Court AND GRANTED HABEAS

CORPUS RELIEF.” UNITED States EX REL, SULLIVAN Vv, CuYLER,

593 F.2p 512 (3x Cir. 1979) (Appennix B, LWeRA, at 1).

THE COMMONWEALTH'S PETITION FOR REHEARING IN BANC WAS

DENIED BY THAT Court, JupGes GarTH, Apams AND RoSENN

DISSENTING, ON MaRcH 12, 1979 (AppENDIx A, INERA, AT 1A).

THREE PRIOR FEDERAL HAREAS CORPUS PETITIONS WERE DISMISSED FOR

FAILURE TO EXHAUST STATE REMEDIES, ‘

, Mo, F9-20U; Unrren

SULLIVAN Vv, A, T, Runpre, to, FO-457; Uniten STATES Ex RE

Nh SULLIVAN V, ROPEPT |. Jounson, CA ‘lo, 73-1694,

z

THE Court oF APPEALS GRANTED RELIEF on SIxTH AMENDMENT GROUNDS

AND THEREFORE FAILED TO CONSIDER THE OTHER ISSUES RAISED PY

NDENT,

FACTUAL History

THE EVIDENCE SURROUNDING RESPONDENT'S CONVICTION WAS AMPLY

SUMMARIZED BY THE PENNSYLVANIA SUPREME COURT AS FOLLOWS:

THE CHIEF PROSECUTION WITNESS, ONE FRANCIS MCGRATH,

WAS EMPLOYED AS A JANITOR AT THE UNION HALL WHER

THE BODIES WERE EVENTUALLY DISCOVERED, ON Jyy :,

6, HE ARRIVED AT WORK AT APPROXIMATELY 6:00 P.M,

AND PARKED HIS AUTOMOBILE IN THE LOT ADJACENT TO THE

BUILDING, AT THAT TIME, HE SPECIFICALLY OBSERVED

TWO OTHER VEHICLES ON THE PREMISES, ONE WAS OWNED

BY APPELLANT AND THE OFHER WAS BEING USED AT THE

TIME BY ONE ANTHONY DiPasauaLe. AFTER ALIGHTING FROM

HIS CAR, MCGRATH NOTICED APPELLANT LOOKING OUT ONTO

THE PARKING LOT FROM THE WINDOW OF A SECOND FLOOR

OFFICE NORMALLY USED BY OTHER UNION OFFICIALS, IHE

WITNESS THEN ENTERED THE BUILDING AND PROCEEDED TO

THE SECOND FLOOR TO COMMENCE HIS DUTIES, APPELLANT

WAS STILL SEATED BY THE WINDOW WHEN MCGRATH ENTERED

THAT OFFICE, SULLIVAN INQUIRED ABOUT THE JANITOR’S

PRESENCE AND INSTRUCTED MCGRATH TO WAIT UNTIL SUNDAY

NIGHT TO CLEAN, SINCE A UNION MEETING WAS SCHEDULED

FOR THAT DATE AND THE BUILDING WOULD REQUIRE CLEANING

AFTER THE GATHERING. MCGRATH IGNORED THE SUGGESTION

ND CONTINUED COLLECTING THE TRASH FROM THE OFFICES,

HE WITNESS THEN TOOK THE REFUSE OUTSIDE THE BUILDING,

WHEN HE RETURNED, APPELLANT WAS STILL SEATED AT THE

WINDOW,

AT THIS TIME, BOTH SULLIVAN AND McGRATH OBSERVED youn

GOREY AND RITA JANDA ARRIVE AT THE UNION HALL IN GorEY’s

CAR AND ENTER THE BUILDING, MCGRATH THEN BEGAN CLEANING

THE CONFERENCE ROOM, LOCATED APPROXIMATELY FEET

FROM GOREY'S OFFICE, SHORTLY THEREAFTER, GOREY APPEARED

AND HAD A BRIEF CONVERSATION WITH MCGRATH, IMMEDIATELY

AFTER SOREY LEFT THE CONFERENCE ROOM, APPELLANT APPEARED

IN THE DOORWAY, THROUGH WHICH GOREY HAD JUST PASSED,

AND AGAIN QUESTIONED MCGRATH ABOUT THE CLEANING AND

SUGGESTED HE DEFER HIS ACTIVITIES UNTIL SUNDAY AFTER-

NOON, JJURING THIS BRIEF CONVERSATION, GREGORY CARCHIDI,

ANOTHER JANITOR, ENTERED THE CONFERENCE ROOM, NO

CONVERSATION ENSUED BETWEEN CARCHID! AND SULLIVAN

BUT LARCHIDI REPEATED APPELLANT'S URGINGS TO LEAVE

THE WORK UNTIL SUNDAY, SULLIVAN THEN LEFT THE ROOM

THROUGH THE SAME DOOR WHICH GOREY HAD EXITED BUT

ARCHIDI REMAINED AND SEATED HIMSELF BEHIND THE DESK,

10

WITHIN SEVERAL MINUTES, THE WITNESS. TESTIFIED HE

HEARD SOUNDS LIKE FIRECRACKERS GOING OFF_IN RAPID

SUCCESSION, MCGRATH STARTED TO QUESTION CARCHID]

ABO\T THE DISTURBANCE BUT WAS ABRUPTLY INSTRUCTED |

TO “GET gui OF THE BUILDING AND DON T SAY NOTHING

(sic), MCGRATH LEFT THE UNION HALL AND NOTICED FOUR

CARS OTHER THAN HIS OWN PARKED IN pHE LOT, |HESE

WERE RECOGNIZED AS aia TO DIPASQUALE, GOREY,

CARCHIDI AND APPELLANT, Mc RATH PROVE OFF sa

RETURNED TO THE PREMISES WITHIN 15 MINUTES, ONLY

GOREY’S CAR REMAINED IN THE LOT, UPON RE-ENTERING

THE BUILDING, HE FOUND THE OFFICES CLOSED, THE

CONFERENCE ROOM LOCKED AND THE LIGHTS OUT,

THE Hla BODIES WERE DISCOVERED THE FOLLOWING

MORNING, OREY HAD BEEN SHOT FOUR TIMES AND JANDA

re TIMES, THE SHOTS BEING FIRED FROM CLOSE RANGE,

HE BALLISTICS STUDIES ESTABLISHED TWO SEPARATE GUNS

WERE EMPLOYED IN THE HOMICIDES BUT THE WEAPONS WERE

NEVER RECOVERED,

ADDITIONAL TESTIMONY DISCLOSED THAT THE TELEPHONE

LINES HAD BEEN ARRANGED SO THAT REGULAR INCOMING CALLS

WOULD RING IN THE ROOM IN WHICH APPELLANT WAS SEATED,

A SECOND LINE WITH A DIFFERENT CALL NUMBER HAD BEEN

PREARRANGED BY GOREY TO RING IN HIS OFFICE SO THAT

HE COULD REGELYE AN ANTICIPATED GALL FROM JOSEPH

ERNICK AT /:0 P.M, ONE IRENE GLENN TESTIFIED For

THE COMMONWEALTH THAT SHE DIALED THE REGULAR UNION

PHONE NUMBER ABOUT 6:15 P.M, THAT EVENING AND A MAN

ANSWERED IDENTIFYING HIMSELF AS GoREY, A SCRAP PAPER

FOUND IN THE WASTEBASKET ALONGSIDE THE DESK WHERE

APPELLANT HAD BEEN SEATED PRIOR TO THE VICTIM'S (SIC)

ARRIVAL CONTAINED Ms, GLENN'S NAME AND TELEPHONE NUMBER,

IT WAS UNCONTESTED THAT THe HANDWRITING WAS THAT OF

APPELLANT, MOREOVER, ONE JOSEPH VERNICK TESTIFIED

THAT HE CALLED GOREY’S OFFICE AT A SPECIALLY ARRANGED

TIME BUT REGEIVED Ng ANSWER DESPITE HIS REPEATED ATTEMPTS

BETWEEN 7:15 AND 8:15 P.M, THIS EVIDENCE, COUPLED

WITH THE MEDICAL EXAMINER S$ TESTIMONY, INDICATED THAT

BH TIME QF DEATH COULD HAVE BEEN APPROXIMATELY 7:1]

sly 44, ADDITIONAL EVIDENCE OF GUILT MAY ALSO BE

NFERRED FROM APPELLANT S STATEMENTS TO POLICE,

Purine QUESTIONING SEVERAL DAYS AFTER THE MURDERS,

ULLIVAN DENIED BEING PRESENT AT THE BUILDING

DURING JHE TIME OF THE SHOOTINGS. THIS CONTRADICTED

MCGRATH’S STATEMENT WHICH PLACED SULLIVAN IN DIRECT

1l

PROXIMITY TO THE CRIME ONLY MOMENTS BEFORE ITS

OCCURRENCE, IOREOVER, MCGRATH STATED THAT WHEN

HE LEFT THE BUILDING SULLIVAN'S CAR WAS STILL

PARKED IN THE LOT,

COMMONWEALTH V, SULLIVAN, SUPRA, 472 Pa, at 147-49, 151, 37]

A,2p at 477-479,

RESPONDENT DID NOT TESTIFY AND NO EVIDENCE WAS INTRO-

DUCED ON HIS BEHALF,

IN SUPPORT OF ITS DECISION GRANTING THE WRIT, THE CouRT

BELOW RELIED SOLELY UPON CERTAIN CONTRADICTED AND INCONSISTENT

TESTIMONY OF ONE OF RESPONDENT. § TRIAL ATTORNEYS GIVEN AT THE

STATE POST CONVICTION HEARING. THE TESTIMONY RELIED UPON WERE

STATEMENTS OF ATTORNEY PERUTO, WHO TWICE INDICATED THAT ONE

REASON, AMONG OTHERS, FOR HIS RECOMMENDATION THAT RESPONDENT

NOT TESTIFY OR PRESENT OTHER WITNESSES WAS A DESIRE NOT TO

REVEAL DEFENSE WITNESSES BEFORE THE TRIAL OF THE TWO CO-

DEFENDANTS (N.T. P.C.H.4, 4/24/74, 101-102, 107), Peruto atso

TESTIFIED TO OTHER STRATEGIC REASONS WHY HE RECOMMENDED THAT

RESPONDENT NOT TESTIFY (N,T, P.C.H.A, 4/24/74, 192) or cate

OTHER DEFENSE WITNESSES (N.T. P.C.H.A, 4/24/74, 20, 99-100, 105-

197, 118, 122),

PERUTO’S TESTIMONY ABOUT HIS DESIRE TO PROTECT THE co-

DEFENDANTS WAS CONTRADICTED, HOWEVER, BY JUDGE D1Bona, WHO, AS

CHIEF COUNSEL, TESTIFIED THAT THE DECISION NOT TO PRESENT A

DEFENSE, EITHER THROUGH RESPONDENT OR THROUGH OTHER WITNESSES,

_enme ELICITED AT SAID HEARING WHICH SPANNED FIVE DAYS,

WILL BE HEREINAFTER CITED AS N, 1, P.C.H.A,. WITH ADDITIONAL

REFERENCE TO THE PARTICULAR DATE SUCH TESTIMONY WAS TAKEN,

12

WAS MADE BY RESPONDENT AFTER DISCUSSION WITH COUNSEL (N,T,

P.C.4,A, 5/15/74, 5-7, 16), AND WAS IN NO WAY INFLUENCED BY THE

REPRESENTATION OF THE CO-DEFENDANTS (NT, P.C.H.A, 5/15/74, 6),

Jupce DiBoNA TESTIFIED FURTHER THAT HE WAS FULLY PREPARED TO

TRY RESPONDENT'S CASE; THAT HE HAD FULL CONSULTATION WITH

RESPONDENT EVERY STEP OF THE WAY; AND THAT HE SAW NO CONFLICT

WHATSOEVER IN HIS LIMITED REPRESENTATION OF THE CO-DEFENDANTS

(H.T, P.C.H.A, 4/24/74, 56), HE ALSO TESTIFIED THAT RESPONDENT

DID NOT WANT TO TESTIFY FROM THE BEGINNING AND THAT AFTER A

LENGTHY DISCUSSION BETWEEN COUNSEL AND RESPONDENT, AS WELL AS

HIS FAMILY, RESPONDENT MADE THE DECISION NOT TO TESTIFY (N,T,

P.C.H.A, 4/24/74, 10-11, 36; 5/15/74, 5-6),

THE PENNSYLVANIA COURTS, IN DENYING RESPONDENT RELIEF

ON HIS INEFFECTIVE ASSISTANCE CLAIM, IMPLICITLY REJECTED

ATTORNEY PERUTO’S TESTIMONY AND CREDITED THAT OF JuDGE D1Bona,

THE PENNSYLVANIA SupREeME CouRT FOUND THAT JuDGE D1BoNna WAS

RESPONDENT'S CHIEF TRIAL COUNSEL, AND AS SUCH HE MADE ALL

DECISIONS RELEVANT TO SULLIVAN'S DEFENSE. COMMONWEALTH V,

SULLIVAN, 472 Pa, aT 161, PERUTO SERVED IN THE CAPACITY OF

AN ASSISTANT COUNSEL, ALTHOUGH THE ROLES WERE REVERSED IN

THE TRIALS OF THE CO-DEFENDANTS. IN LIGHT OF THIS, THE

PENNSYLVANIA SUPREME COURT DETERMINED THAT NO DUAL REPRESENTA-

TION, IN THE TRADITIONAL SENSE, EXISTED AND THAT NO EVIDENCE

OF A CONFLICT WAS SHOWN, Ip, aT 161-162,

13

REASONS FOR GRANTING THE WRIT

I, THE S1xTH AMENDMENT STANDARD OF Review UTILIzep BY THE

Court oF APPEALS For THE THIRD CrrcurT IN DETERMINING

ConFLicts OF Interests For Derense Attorneys In STATE

CRIMINAL TRIALS IS INCONSISTENT \!ITH STANDARDS ENUNCIATED

By Every OTHER Court oF Appeacs Ann Finps fo Support In

THE Prior Decisions OF TH1s Court,

It} REVERSING RESPONDENT'S MULTIPLE MURDER CONVICTIONS

ON SIXTH AMENDMENT CONFLICT OF INTEREST GROUNDS, THE COURT

BELOW POSITED ITS STANDARD OF REVIEW AS FOLLOWS:

THERE MUST BE SOME SHOWING OF A POSSIBLE

» HOWEVER

REMOTE, BEFORE A REVIEWING COURT WILL FIND

THE DUAL REPRESENTATION CONSTITUTIONALLY

DEFECTIVE ... ACTUAL PREJUDICE OR CONFLICT

OF INTEREST NEED NOT BE SHOWN, THE MERE 5

POSSIBILITY, HOWEVER REMOTE, IS SUFFICIENT,

THE Court BELOW, IN THE PARTICULAR CONTEXT OF THIS CASE, ALSO

NOTED:

11. RESPONDENTS ARE ASKING US TO DECIDE

THAT THERE WAS IN FACT NO PREJUDICE, THIS

MISSES THE POINT. THE STANDARD REQUIRES

US TO DETERMINE WHETHER THERE IS A POSSI-

BILITY OF PREJUDICE, i en

INTEREST, HOWEVER REMOTE. O HOLD, IN

THE FACE OF THIS RECORD, THAT THERE WAS

NOT SUCH A POSSIBILITY WOULD BE TO, IN

EFFECT, OVERRULE A LONG LINE OF CASES

IN THIS CIRCUIT AND REQUIRE A SHOWING OF

ACTUAL PREJUDICE. THIS WE CANNOT DO,

(EMPHASIS ADDED) Ip. at 522,

5

er STATES EX REL, SULLIVAN Vv, CuyteR, 593 F,2p at 519-

20 (APPENDIX B, LNERA, AT PP. 12-13B),

14

IT 18 RESPECTFULLY SUBMITTED THAT THE STANDARD UTILIZED

BY THE COURT BELOW IMPROPERLY INTERPRETS THE SIXTH AMENDMENT

REQUIREMENT THAT CRIMINAL DEFENDANTS BE AFFORDED THE EFFECTIVE

ASSISTANCE OF COUNSEL AND HAS NO SUPPORT IN THIS CouRT’s

CONFLICTS OF INTEREST DECISIONS. SEE, £.G., GLASSER Vv, UNITED

States, 315 U.S, 60 (1942), anp HoLLowAy v, Arkansas, 435 U,S,

475 (1978), FURTHERMORE, THIS STANDARD IS TOTALLY INCONSISTENT

WITH THAT USED IN EVERY OTHER CiRcuIT Court oF APPEALS, For

ALL OF THESE REASONS, THIS COURT SHOULD ISSUE A WRIT OF

CERTIORARI TO REVIEW THE DECISION OF THE COURT BELOW,

THIs CourT HAS, IN THE PAST, COMMENTED ON THE DIFFERENT

APPROACHES BY VARIOUS COURTS IN DETERMINING THE EXISTENCE OF

CONFLICTS OF INTEREST. HOLLOWAY v, Aransas, 98S, Ct, at 1178,

VARIOUS COMMENTATORS HAVE ALSO INDICATED THAT THE COURTS OF

APPEAL ARE IN DISARRAY IN THEIR RESOLUTION OF THIS PROBLEM,

SEE, E.G., GEER, REPRESENTATION OF MULTIPLE CRIMINAL DEFENDANTS:

ConFLicts OF INTEREST AND THE ProFESSIONAL RESPONSIBILITY OF THE

DEFENSE AtToRNey, 62 Minn. L, Rev, 119 (1977); Hyman, JoINT

REPRESENTATION OF MULTIPLE DEFENDANTS IN A CRIMINAL TRIAL:

THE Court’s HEADACHE, 5 Hofstra L, Rev, 315 (1977); COMMENTS:

ConFLicT OF INTERESTS IN MULTIPLE REPRESENTATION OF CRIMINAL

Co-DEFENDANTS, 68 JouRNAL OF CRIMINAL LAW AND CRIMINOLOGY, 226

(1977); Note, Ensurine EFFective Assistance OF CounseL For THE

15

CRIMINAL Co-DeEFENDANT, 37 La, L. Rev, 1289 (1977); Wanat,

CONFLICTS OF INTEREST IN CRIMINAL CASES AND THE RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL - THE NEED FOR CHANGE, 10 RuT,

= CaM, & Rev, 57 (1978),

In GLASSER Vv, UNITED STATES, SUPRA, THIS COURT HELD THAT

BY REQUIRING AN ATTORNEY TO REPRESENT TWO CO-DEFENDANTS WHOSE

INTERESTS WERE IN CONFLICT, WHICH CONFLICT WAS BOTH READILY

APPARENT AND POINTED OUT TO THE COURT, ONE DEFENDANT WAS DENIED

HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL. IN HOLLOWAY V, ARKANSAS, THIS COURT REAFFIRMED

GLASSER BY HOLDING THAT ONCE AN IMPERMISSIBLE CONFLICT OF

INTEREST IS SHOWN, AND THE TRIAL COURT REFUSES TO APPOINT

SEPARATE COUNSEL OVER OBJECTION, NO INQUIRY INTO THE DEGREE OF

PREJUDICE IS NECESSARY, 98S, Ct. at 1181. However, THIS CouRT

IMPLICITLY INDICATED THAT A CONFLICT OF INTEREST MUST BE SHOWN:

FINALLY, A RULE REQUIRING A DEFENDANT TO SHOW

THAT A CONFLICT OF INTERESTS ~ WHICH HE AND

HIS COUNSEL TRIED TO AVOID BY TIMELY OBJECTIONS

TO THE JOINT REPRESENTATION - PREJUDICED HIM IN

SOME SPECIFIC FASHION WOULD NOT BE SUSCEPTIBLE

TO INTELLIGENT, EVENHANDED APPLICATION ,,, AND

TO ASSESS THE IMPACT OF A

ON THE ATTORNEY'S OPTIONS, TACTICS AND DECISIONS

IN PLEA NEGOTIATIONS WOULD BE VIRTUALLY IMPOSSIBLE,

98 S, Ct, at 1182 (EMPHASIS ADDED),

PETITIONER HEREIN DOES NOT CHALLENGE THE CLEARLY

ESTABLISHED PRINCIPLE THAT ONCE A CONFLICT OF INTEREST IS

ESTABLISHED, NO INQUIRY INTO THE DEGREE OF PREJUDICE 1S

NECESSARY. THE THIRD CircurT Court oF APPEALS, HOWEVER, HAS

16

GONE FURTHER IN ITS APPROACH AND EXPRESSLY HELD THAT ALL A

HABEAS CORPUS PETITIONER NEED SHOW TO OBTAIN RELIEF IS A

POSSIBILITY THAT A CONFLICT OF INTEREST MAY HAVE EXISTED,

THUS, IN THE THIRD CIRCUIT, A HABEAS PETITIONER NOT ONLY IS

NOT REQUIRED TO ESTABLISH ACTUAL PREJUDICE, HE ALSO HAS NO

BURDEN TO EVEN ESTABLISH THE EXISTENCE OF AN ACTUAL CONFLICT,

THE MINIMAL STANDARD EMPLOYED BY THE COURT BELOW PUTS IT

AT ODDS WITH EVERY OTHER CourT OF APPEALS, SAVE ARGUABLY THE

District oF CoLumpiaA Court OF APPEALS, THE OVERWHELMING

MAJORITY OF CrRCUIT CouRTS OF APPEAL REQUIRE THAT AN ACTUAL

CONFLICT OF INTEREST OR ACTUAL PREJUDICE BE ESTABLISHED,

SEE, £.G., UNITED States v, Foster, 469 F,2p 1 (1st Cir. 1972)

(DEFENDANT DID NOT SHOW ANY PREJUDICE FROM JOINT REPRESENTATION) ;

Kaplan v, Bomparp, 573 F,.2p 708 (2np Crr, 1978) (DEFENDANT MUST

SHOW SOME SPECIFIC INSTANCE OF PREJUDICE, SOME REAL CONFLICT

OF INTEREST); UNITED STATES v, CARRIGAN, 543 F,2p 1053 (2np

Cir, 1976) (REAL CONFLICT OF INTEREST AND PREJUDICE PRESENT

SINCE EACH DEFENDANT GAVE DIFFERENT VERSION OF INCIDENT TO POLICE

AND DEFENDANT'S TRIAL TESTIMONY WAS 'N CONFLICT WITH THE CO-

DEFENDANT'S STATEMENT, WHICH WAS ALSO ADMITTED AT TRIAL);

UNITED STATES v, Atkinson, 565 F.2p 1283 (4TH Cir. 1977), cert,

DENIED, 98 S, Ct, 2845 (1978) (DEFENDANT MUST SHOW SOME SPECIFIC

INSTANCE OF PREJUDICE AND SOME REAL CONFLICT OF INTEREST);

HAGGARD V, STATE OF ALABAMA, 550 F.2p 1019, REHEARING DENIED,

554 F.2p 475 (StH C1x, 1977) (DEFENDANT MUST SHOW ACTUAL

1/7

PREJUDICE); FoxwoRTH V, WAINWRIGHT, 516 F.2p 1072 (5TH Cir,

1975) (ACTUAL PREJUDICE EXISTS AS TO MINIMALLY INVOLVED

DEFENDANT SINCE PLAUSIBLE DEFENSE OF SHIFTING BLAME TO CO-

DEFENDANTS FORECLOSED BY JOINT REPRESENTATION); [HACKER V,

RORDENKIRCHER, 590 F.2p 649 (6TH Cir, 1979) (DEFENDANT MUST SHOW

THAT THERE WAS A CONFLICT OF INTEREST AND THAT HE WAS PREJUDICED

THEREBY; THE ESTABLISHMENT OF MERE POTENTIAL CONFLICT ARISING

FROM JOINT REPRESENTATION IS NOT SUFFICIENT TO CONSTITUTE DENIAL

OF THE SIXTH AMENDMENT); UNITED States v, Woops, 544 F,2p 242

(6TH Cir, 1976), CERT. DENIED, 429 U.S, 1062 (1977) (DEFENDANT

MUST SHOW ACTUAL PREJUDICE); UNITED STATES EX REL, MCCLINDON

Vv, WARDEN, Jit, St, PEN, 575 F,2p 108 (7TH Cir, 1978) (DEFENDANT

MUST SHOW THAT A CONFLICT OF INTEREST EXISTED IN FACT);

UNITED STATES Vv, MANDELL, 525 F,2p 671 (7TH Cir. 1975), cert,

DENIED, 423 U.S, 1049 (1976) (DEFENDANT MUST SHOW WITH A REASONABLE

DEGREE OF SPECIFICITY THAT A CONFLICT OF INTEREST ACTUALLY EXISTED

AT TRIAL; SOMETHING MORE THAN “A POSSIBLE CONFLICT OF INTEREST,

HOWEVER REMOTE” NEEDED); Davipson v, Cupp, 446 F,2p 642 (StH Cir,

1971) (DEFENDANT MUST SHOW SPECIFIC PREJUDICE IN ORDER TO PREVAIL);

WATKINS V, Yitson, 498 F,2p 351 (9TH Cir, 1969) (DEFENDANT MUST

DEMONSTRATE THAT SOME SPECIFIC PREJUDICE RESULTED FROM THE JOINT

REPRESENTATION); FRYAR V, UNITED STATES, 404 F,2p 1071 (10TH

Cir, 1968), cert, DENIED, 395 U.S, 964 (1969) (DEFENDANT muUST

SHOW THAT PREJUDICE RESULTED FROM THE JOINT REPRESENTATION),

18 13

« N UNWARRANTED BURDEN ON STATE PROSECUTORS IN THE THIRD CIRCUIT

THE ErGHTH Circuit Court oF APPEALS REQUIRES A SHOWING 2 en ae ,

OF ACTUAL PREJUDICE OR A SUBSTANTIAL POSSIBILITY OF A CONFLICT ; A

CERTIORARI TO REVIEW THE DECISION OF THE CouRT OF APPEALS FOR

OF INTEREST. AusTIN v, ErRicxson, 477 F.2p 620 (8TH Cir, 1973);

BERAN v, UNITED Stares, 580 F.2p 324 (81H Cir. 1978), cert, THE THIRD CiRcuIT.

DENIED, __ U.S, __, 99 S. Cr, 1422 (1979) (DEFENDANT must

SHOW THAT THERE WAS AN ACTUAL CONFLICT OF INTEREST OR A SUB-

IT IS RESPECTFULLY REQUESTED THAT THIS CouRT ISSUE A WRIT OF

STANTIAL POSSIBILITY OF SUCH A CONFLICT),

THE CONFLICT OF INTEREST STANDARD IN THE DISTRICT OF

COLUMBIA CIRCUIT REQUIRES THE COURT TO DETERMINE IF THE RECORD

SHOWS THE ABSENCE OF PREJUDICE OR A CONFLICT OF INTEREST

BEYOND A REASONABLE DOUBT. LOLLAR v, UNITED States, 376 F.2p

243 (D.C. Cir, 1967), EveEN THAT STANDARD, HOWEVER, REQUIRES

THE COURT TO EXAMINE THE RECORD AS A WHOLE TO DETERMINE THE

POSSIBILITY OF PREJUDICE,

THE STANDARD OF REVIEW OF THE COURT BELOW IS UNWARRANTED

AND, IT IS RESPECTFULLY SUBMITTED, GOES FAR BEYOND THE

CONSTITUTIONAL STANDARDS ESTABLISHED IN ALL OTHER CIRCUITS, ®

CERTAINLY THIS COURT HAS NEVER INDICATED THAT THE UNITED STATES

CONSTITUTION IS VIOLATED BY THE EXISTENCE OF A POSSIBLE CONFLICT

OF INTEREST OR PREJUDICE, HOWEVER REMOTE,

IN LIGHT OF THE SPLIT OF AUTHORITY REFERRED TO ABCVE AND ©

THE FACT THAT THE INSTANT CLAIM WAS REJECTED BY PENNSYLVANIA’S

HIGHEST COURT, AS WELL AS THE UNITED States District Court

BELOW, AND BECAUSE THE DECISION OF THE CouRT BELOW WILL PLACE

20

1, Even AssuminG THAT THE STANDARD OF Review APPLIED BELow

IE CONSTITUTIONALLY [ANDATED WHEN CourT APPOINTED Cou SEL

EPRESENTS Two OR MoRE 5 FENDANTS AT THe SAHE RIAL, THE

esoonoens bio Ais Scpunenect faith Conberensates Bi Tach

PRIVATELY RETAINED Error YS, ComPELs THe Use OF A DIFFERENT

STANDARD OF REVIEW UNDER THE SIXTH AMENDMENT,

EVEN IF THIS COURT WERE TO DETERMINE THAT THE SIXTH

AMENDMENT STANDARD OF REVIEW UTILIZED BELOW IS CONSTITUTIONALLY

REQUIRED AS A GENERAL PROPOSITION, THE CIRCUMSTANCES HEREIN

MANDATE A STRICTER STANDARD OF REVIEW, SUCH REVIEW MUST REQUIRE

A SHOWING, IN FACT, OF AN ACTUAL CONFLICT OF INTEREST OR

PREJUDICE, IN ORDER TO REVERSE STATE CRIMINAL CONVICTIONS. By

ITS FAILURE TO DIFFERENTIATE BETWEEN JOINT AND SEPARATE TRIALS,

AS WELL AS PRIVATELY RETAINED VERSUS COURT APPOINTED COUNSEL,

THE COURT BELOW MISCONSTRUED THE SIXTH AND FOURTEENTH AMENDMENTS

OF THE CONSTITUTION,

INITIALLY, THE INSTANT RECORD REVEALS THAT RESPONDENT WAS

TRIED APART FROM HIS TWO CO-DEFENDANTS, BOTH OF WHOM WERE

SUBSEQUENTLY AND SEPARATELY TRIED, THERE CAN BE NO DOUBT THAT

THE MANY UNFAVORABLE ASPECTS OF A JOINT CRIMINAL TRIAL CAN

WEIGH HEAVILY AGAINST A CRIMINAL DEFENDANT, CONSIDERATIONS SUCH

AS VARYING DEGREES OF CULPABILITY; DIFFERENCES IN DEFENSE

STRATEGIES; THE POSSIBILITY OF GUILT BY ASSOCIATION; AND THE

DECISION WHETHER TO TESTIEY OR NOT, ARE ALL ACCENTUATED IN THE

CONTEXT OF A JOINT TRIAL, IN THE CONTEXT OF SEPARATE TRIALS,

E.G., ABA Stanparps RELATING TO THE INISTRATION OF

fee, eas JUSTICE, JOINDER AND SEVERANCE. QRYINIS POND ED, 1978),

21

HOWEVER, THE POSSIBILITY OF ANY INHERENT UNFAIRNESS IS NONEXISTENT,

THUS, IT HAS BEEN HELD THAT A GREATER SHOWING OF PREJUDICE IN

CONFLICTS CLAIMS MUST BE MADE IN CASES OF DUAL REPRESENTATION

AS OPPOSED TO JOINT REPRESENTATION, SEE, E,G,, MILLER Vv.

UNiTeD States, 564 F,2p 103, 106 (lst Cir. 1977), CERT, DENIED,

435 U.S, 931 (1978),

THE INSTANT RECORD REVEALS, AT MOST, DUAL REPRESENTATION BY

TWO PRIVATELY RETAINED ATTORNEYS, IN FACT, BOTH THE PENNSYLVANIA

SUPREME CouRT AND THE UNITED States District COURT DETERMINED

THAT THE CONCEPT OF DUAL REPRESENTATION, IN ITS TRADITIONAL

SENSE, WAS INAPPLICABLE INSTANTLY, BOTH COURTS FOUND THAT THE

SIGNIFICANT DIFFERENCES IN THE DIVISION OF RESPONSIBILITY BETWEEN

RESPONDENT'S TWO PRIVATELY RETAINED COUNSEL PRECLUDED A FINDING

OF DUAL REPRESENTATION,

NHETHER OR NOT THE DIVISION OF RESPONSIBILITY BY RESPONDENT'S

ATTORNEYS PRECLUDES A FINDING OF DUAL REPRESENTATION, THE FACT

THAT RESPONDENT WAS SEPARATELY TRIED SURELY WARRANTS A STRICTER

fevainieven, THE PHRASE DUAL REPRESENTATION REFERS TO THE CONCEPT

OF AN ATTORNEY REPRESENTING CO-DEFENDANTS WHO ARE SEPARATELY TRIED,

» APPENDIX D, INFRA, AT 33-34;

LIED STATES §X REL. SULLIVAN V, CUYLER, APPENDIX C, INFRA, AT SC.

June DiBon mas nesrppenr’s cuier ria. comes, Arromey Penuro

BHSSOOHAT s_tepresewrarion HT, Beech Adz oRrs BH, Wy

CO-DEFENDANTS ey B BENERS By sH ay

22

STANDARD OF REVIEW THAN THAT APPLIED BY THE CouRT BELOW. IN

THE FACTUAL CONTEXT PRESENTLY INVOLVED, IT IS RESPECTFULLY

SUBMITTED THAT AN ACTUAL CONFLICT OF INTEREST OR PREJUDICE

MUST BE DEMONSTRATED. NO SUCH CONFLICT OR PREJUDICE EXISTS

HEREIN,

ADDITIONALLY, THE COURT BELOW FAILED TO RECOGNIZE THE

FACT THAT A DIFFERENT STANDARD OF REVIEW WAS REQUIRED SINCE

RESPONDENT'S REPRESENTATION WAS OF HIS OWN CHOOSING, AND NOT

THAT OF THE STATE'S, RESPONDENT, ALONG WITH HIS CO-DEFENDANTS,

PRIVATELY RETAINED TWO EXCEEDINGLY EXPERIENCED CRIMINAL TRIAL

ATTORNEYS. UNDER THESE CIRCUMSTANCES, HABEAS CORPUS RELIEF

WOULD ONLY BE WARRANTED IF (1) RESPONDENT'S REPRESENTATION WAS

SO LACKING IN EFFECTIVENESS, BECAUSE OF THE DUAL REPRESENTATION,

AS TO HAVE DEPRIVED HIM OF A FUNDAMENTALLY FAIR TRIAL: OR

(2) THE TRIAL JUDGE OR PROSECUTOR KNEW THAT RESPONDENT PECEIVED

INCOMPETENT REPRESENTATION AND TOOK NO REMEDIAL ACTION, OR THAT

THE INCOMPETENCY OF RESPONDENT'S REPRESENTATION WAS SO APPARENT

THAT THEY SHOULD HAVE BEEN AWARE OF IT AND COULD HAVE CORRECTED

IT. ONLY THEN CAN RESPONDENT'S RETAINED ATTORNEYS’ ACTIONS BE

ATTRIBUTED TO THE COMMONWEALTH FOR FOURTEENTH AMENDMENT REVIEW

PURPOSES,

THE CourT BELOW FOUND A SIXTH AMENDMENT VIOLATION IN THE

DUAL REPRESENTATION OF RESPONDENT AND TWO SEPARATELY TRIED

CO-DEFENDANTS BY TWO RETAINED ATTORNEYS BECAUSE, IN ITS VIEW,

A POSSIBILITY OF CONFLICTING INTERESTS OR PREJUDICE, HOWEVER

REMOTE, EXISTED. SUCH A DETERMINATION MISCONSTRUES THE

23

Unrtep States CONSTITUTION AND FINDS NO SUPPORT IN ANY OF THE

DECISIONS OF THIS COURT OR ANY OTHER FEDERAL APPELLATE COURT.

By MECHANICALLY APPLYING ITS OWN CONFLICT OF INTEREST STANDARD,

AS WEL AS IGNORING CERTAIN CONTRARY THIRD CIRCUIT DECISIONAL

LAW, THE COURT BELOW IMPROPERLY EXTENDED SIXTH AMENDMENT REVIEW,

WITH RESPECT TO INDIGENT STATE CRIMINAL DEFENDANTS, THIS

CouRT HAS DETERMINED THAT THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT REQUIRES THE APPOINTMENT OF EFFECTIVE

COUNSEL, POWELL v, ALABAMA, 287 U.S. 45, 71 (1932),

ADDITIONALLY, IF COUNSEL’S REPRESENTATION AMOUNTS TO A MERE

FORMALITY OR SHAM, DUE PROCESS ALONE VITIATES THE PROCEEDINGS,

Avery_v, ALABAMA, 308 U.S. 444 (1940); Hawk v. Ousen, 326 U.S,

971 (1945): Wute v. Racen, 324 U.S, 760 (1945); House v, Mayo,

324 U.S, 42 (1945), SIMILARLY, UNDER THE SIXTH AMENDMENT,

‘AN INDIGENT MUST BE PROVIDED WITH APPOINTED COUNSEL IN ALL

STATE CRIMINAL TRIALS INVOLVING IMPRISONMENT, GIDEON Vy

WAINWRIGHT, 372 U.S. 335,- 344-345 (1963); ARGERSINGER V, HAMLIN,

47 U.S, 25 (1972); Scott vs Iupinors, __ U.S, __, 99 S. Ct,

2086 ¢ (ss 07. 426-427 (3rd

oT

=}

“4 Sy CERT. BO 3

tir ¢ 2 34 NITED STATES EX REL, OREEN V, 8 Fo,

Be i 5 AER of Gyiiy Sings a Ae Tass

24

1158 (1979) 4 IN SUCH CASES THE STATE ACTION REQUIREMENT

OF FOURTEENTH AMENDMENT REVIEW IS OBVIOUS SINCE THE STATE IS

DIRECTLY RESPONSIBLE IN SELECTING COUNSEL,

HOWEVER, SINCE RESPONDENT EXERCISED HIS FUNDAMENTAL RIGHT

TO COUNSEL OF HIS CHOICE, THE COURT BELOW UTILIZED AN ERRONEOUS

STANDARD OF REVIEW IN FINDING A SIXTH AMENDMENT VIOLATION

ATTRIBUTABLE TO THE COMMONWEALTH OF PENNSYLVANIA,

IN ORDER FOR A SIXTH AMENDMENT VIOLATION TO HAVE OCCURRED

IT MUST BE SHOWN THAT THE TRIAL JUDGE OR PROSECUTOR KNEW THAT

RESPONDENT RECEIVED INCOMPETENT REPRESENTATION AND TOOK NO

REMEDIAL ACTION, OR THAT THE INCOMPETENCY OF RESPONDENT’ S

REPRESENTATION WAS SO APPARENT THAT THEY SHOULD HAVE BEEN AWARE

OF IT AND COULD HAVE CORRECTED IT. ELTZGERALD Vv, ESTELLE, 505

F.2p 1334 (StH Cir.), CERT. DENIFD, 422 U.S, 1011 (1975). Onvy

THEN CAN A PRIVATELY RETAINED ATTORNEY'S ACTIONS BE ATTRIBUTED

TO THE STATE FOR FOURTEENTH AMENDMENT PURPOSES,

THE THIRD Circuit CourT OF APPEALS HAS RECOGNIZED THE ABOVE

DISTINCTION, BUT NEVERTHELESS CHOSE TO IGNORE IT HEREIN,

UNITED STATES EX REL, HART v. DAvenport, 478 F.2p 203, 210-211

(3rp Cir, 1973), NOWHERE IN ITS OPINION GRANTING RELIEF DOES

In Mee, CONTEXT OF RECOMMENDING THAT A DEFENDANT PLEAD GUILTY,

THIS LOURT HAS DEFINED EFFECTIVE ASSISTANCE TO MEAN THAT SUCH

ADVICE BE “WITHIN THE RANGE OF COMPETENCE RS, Og ORY YS 970);

a re ec mi renege

N CRIMINAL

DEFINITION, THIS LOURT HAS NEVER EXPLICITLY DEFINED THE MINIMUM

EGREE OF EFFECTIVENESS_NECESSA OR gp!X4 AMENDMEN RPOSES,

HagvLanD v4 MaRzuLLO, 43 3 B fi es Ronis af “1335 (998) (lustices

HITE AND RHENQUIST DJSSENTING FROM THIS OURT'S DENTAL OF

CERTIORARI TO REVIEW FouRTH CIRCUIT'S ADOPTION OFA a CONSTI-

UT IONS 7 TANDARD IN MARZULLO VY, ABR ] 0 (4TH

IR,

25

THE COURT BELOW DIFFERENTIATE BETWEEN RETAINED VERSUS APPOINTED

COUNSEL, AS THE THREE JUDGE DISSENT FROM THE ORDER DENYING

REHEARING IN BANC STATED:

BUT ALTHOUGH STATE ACTION WAS FOUND TO

BE PRESENT IN HART, THERE WOULD APPEAR

TO BE NO EVIDENCE IN THE PRESENT CASE

THAT THE TRIAL JUDGE OR THE PROSECUTOR

WAS AWARE, OR SHOULD HAVE BEEN AWARE,

OF THE ALLEGED CONFLICT OF INTEREST,

AND CERTAINLY NOTHING JN THE RECORD

SUGGESTS THAT SULLIVAN) S REPRESENTATION

BY TWO OF PHILADELPHIA’S BEST KNOWN

TRIAL ATTORNEYS WAS SO GROSSLY DEFICIENT

AS TO RENDER THE PROCEEDINGS FUNDAMENTALLY

U

APPENDIX A, INFRA, AT

IN ES eRe aoe 580 F.2p 1251 (5tH Cir, 1978),

THE FIFTH CIRCUIT APPROPRIATELY RECONCILED ITS CONFLICT OF

INTEREST STANDARD OF REVIEW WITH THE PRIVATELY RETAINED VERSUS

APPOINTED COUNSEL DICHOTOMY, THE GOVERNMENT ARGUED THAT A MORE

STRINGENT TEST WAS REQUIRED FOR DETERMINING THE EFFECTIVENESS OF

COUNSEL IN CONFLICTS CASES INVOLVING RETAINED COUNSEL. THE

CourT STATED (ID. at 1256);

APPLYING, AS WE_MUST, THE STANDARDS

ESTABLISHED BY FITZGERALD FOR JUDGING

EFFECTIVENESS-OF-COUNSEL CLAIMS, WE

FIND THAT CONFLICT-OF-INTEREST CASES

SUCH AS THE INSTANT ONE FALL WITHIN

HE DUE PROCESS CATEGORY OF CASES,

ONSEQUENTLY, WE HOLD THAT AN ATTORNEY,

WHETHER RETAINED OR APPOINTED LABORING

UNDER AN ACTUAL CONFLICT OF INTEREST IN HIS

REPRESENTATION OF AN ACCUSED FAILS TO ACCORD

HIM EFFECTIVE ASSISTANCE OF COUNSEL AS

UARANTEED BY THE DUE PROCESS CLAUSE OF THE

IFTH AMENDMENT, AND A FORTIORI, THE SIXTH

AMENDMENT,

26

THE COURT THEREAFTER DETERMINED THAT AN ACTUAL CONFLICT OF INTEREST

EXISTED, AND RELYING ON THIS CouRT'’S DECISION IN HOLLOWAY Vv,

ARKANSAS, SUPRA, CORRECTLY DETERMINED THAT NO SHOWING OF PREJUDICE

IS REQUIRED ONCE AN ACTUAL CONFLICT OF INTEREST IS ESTABLISHED,

UNITED STATES Vv, ALVAREZ, SUPRA AT 1259 n, 14,

BY ATTRIBUTING TO THE STATE, FOR FOURTEENTH AMENDMENT

PURPOSES, ITS FINDING THAT A POSSIBILITY OF PREJUDICE, HOWFVER

REMOTE, IS SUFFICIENT TO WARRANT HABEAS CORPUS RELIEF IN THIS

CASE, THE COURT BELOW HAS ENTERED AN UNCHARTERED SEA, AND

CONSTITUTIONALLY MISCONSTRUES THE SIXTH AND FOURTEENTH AMENDMENTS,

AND THIS COURT'S PRIOR CONFLICTS OF INTERESTS DECISIONS,

PETITIONER READILY CONCEDES THAT CERTAIN COURTS HAVE

REJECTED ANY DISTINCTION BETWEEN RETAINED VERSUS APPOINTED

COUNSEL IN WEIGHING INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS,

HOWEVER, IN EACH OF THESE CIRCUITS, IN ORDER TO SECURE SIXTH

AMENDMENT RELIEF ON CONFLICT OF INTEREST GROUNDS, THE CONSTITU-

TIONAL STANDARD OF REVIEW REQUIRES A SHOWING OF AN ACTUAL CONFLICT °

NITED STATES 14 ALBERTI,

FERT. NG to

Eg? Base eas

daeeeatto Bu By,

ie STATES Vv. FosTER, Ni hits Ls Naoe (1st

ALTHOUGH THE li CIRCUIT IN THE PAST MADE NO DISTINCTION BETWEEN

Laney fin AND APPOINTED Sarg IN ae 7) BD Ng. aN SS “yam

oY TH '

IT RECENTLY INDICATED THAT THER ~

By NSTITUT Bi! STANDARDS 5 Nepky / apron. susan, 18)" 5 20

Bi t.35 t1%3, “1135" 4 Sie ARS

B( st Cir,

2/7

OF INTEREST OR eis As THE FIFTH CIRCUIT MAKES CLEAR,

IN ALVAREZ, SUPRA, WHENEVER AN ACTUAL CONFLICT OF INTEREST EXISTS,

THE TRIAL IS FUNDAMENTALLY UNFAIR AND IPSO FACTO FOURTEENTH AND

SIXTH AMENDMENT VIOLATIONS OCCUR,

RY IGNORING THE PRIVATE VERSUS RETAINED COUNSEL DISTINCTION,

WHILE SIMULTANEOUSLY APPLYING A TOTALLY INAPPROPRIATE STANDARD

OF REVIEW, THE COURT BELOW MISAPPLIED THE UNITED STATES ConsTI-

TUTION, THE COURT ADAMANTLY REFUSED TO INQUIRE INTO THE ACTUAL

EXISTENCE OF A CONFLICT OF INTEREST OR PREJUDICE:

RESPONDENTS ALSO ARGUE THAT ULTIMATELY IT

WAS PETITIONER HIMSELF, AND NOT HIS ATTORNEYS,

WHO DECIDED NOT TO TAKE THE WITNESS STAND AND

THAT HIS DECISION WAS BASED ON PERSONAL CONSID-

“lm - AND NOT INFLUENCED BY DUAL REPRESENTA~

TION, URTHER, THEY SUBMIT, ONCE PETITIONER HAD

DECIDED NOT TO TESTIFY THERE WERE NO +t Aby gana

WHOSE TESTIMONY WOULD HAVE BEEN WORTHWHILE, NY

COMPLAINT ABOUT THE FAILURE TO PRODUCE DEFENSE

WITNESSES IS, IN THEIR JUDGMENT, ILLUSORY, HESE

ARGUMENTS ARE ALSO DIRECTED TO THE QUESTION

WHETHER THERE WAS ACTUAL PREJUDICE WHICH, AS

WE HAVE NOTED, WE MAY NOT CONSIDER,

UNITED STATES £X REL, SULLIVAN V, CUYLER ET AL,, APPENDIX, INFRA,

AT JOR,

IN SUM, WHETHER OR NOT THE EXCEEDINGLY LIBERAL SIXTH

AMENDMENT STANDARD OF REVIEW UTILIZED BELOW IS CONSTI TUTIONALL

REQUIRED IN JOINT REPRESENTATION COURT APPOINTMENT CASES, IT

CERTAINLY IS ERRONEOUS AS APPLIED TO RESPONDENT HEREIN,

Tae District oF CoLumB1A CourT oF APPEALS, WHILE BEJFETING THE

DISTINCTION, SUPRA AT 24 » STILL

MANDATES AN INQUIRY INTO THE EXISTENCE OF PREJUDICE IN FACT,

ALTHOUGH REQUIRING THE GOVERNMENT TO PROVE ITS ABSENCE,

28

SINCE RESPONDENT WAS REPRESENTED BY PRIVATELY RETAINED COUNSEL,

TRIED SEPARATELY FROM HIS TWO CO-DEFENDANTS, AND AFFORDED

REPRESENTATION THAT WAS NEITHER FUNDAMENTALLY UNFAIR NOR SO

DEFECTIVE AS TO PUT THE TRIAL COURT OR PROSECUTOR ON NOTICE

OF ANY ALLEGED CONFLICT OF INTEREST, ONLY AN ACTUAL CONFLICT

OF INTEREST OR PREJUDICE WOULD WARRANT REVERSAL. NO SUCH

SHOWING EXISTS ON THIS RECORD,

FOR THE REASONS STATED ABOVE, THIS COURT IS RESPECTFULLY

REQUESTED TO ISSUE A WRIT OF CERTIORARI TO THE CourT OF APPEALS

FOR THE THIRD CIRCUIT,

29

I], THE Decision OF THE Court BeLow VIOLATED RETTLED PRINCIPLES

JF HABEAS CorPus Revjew, As ENUNCIATED By THIS OURT we ONGRESS,

2Y ENCROACHING Upon THE FacTUAL ETRRMINATIONS Mape_In HE STATE

OURT System, AND SUBSTI TUTI G Its Own Finpincs OF Fact For THOSE

OF THE State Courts Anp THE District CourT,

IN TOWNSEND v, SAIN, 372 U.S, 293 (1963), THIS CouRT SET FORTH

GENERAL STANDARDS GOVERNING HABEAS CORPUS PROCEEDINGS IN FEDERAL

couRT, TuHis Court stated (Ip, at 314-315):

FURTHERMORE, THE COEQUAL RESPONSIBILITIES

OF STATE AND FEDERAL JUDGES IN THE ADMINIS-

TRATION OF FEDERAL CONSTITUTIONAL LAW ARE SUCH

THAT WE THINK THE DISTRICT JUDGE MAY, IN THE

ORDINARY CASE IN WHICH THERE HAS BEEN NO

ARTICULATION, PROPERLY ASSUME THAT THE STATE

TRIER OF FACT APPLIED CORRECT STANDARDS OF

FEDERAL LAW TO THE FACTS, IN THE ABSENCE OF

EVIDENCE ... THAT THERE IS REASON TO SUSPECT

THAT AN es gh STANDARD WAS IN FACT

APPLIED, HUS, IF THIRD-DEGREE METHODS OF

OBTAINING A CONFESSION ARE ALLEGED AND THE

STATE COURT REFUSED TO EXCLUDE THE CONFESSION

FROM EVIDENCE, THE DISTRICT JUDGE MAY ASSUME

THAT THE STATE TRIER FOUND THE FACTS AGAINST

THE PETITIONER, THE LAW BEING, THAT THIRD-

DEGREE METHODS NECESSARILY PRODUCE A COERCED

CONFESSION,

SUBSEQUENT TO TOWNSEND, CONGRESS AMENDED 28 U.S.C, §2254(p) To

PROVIDE IN RELEVANT PART:

A DETERMINATION AFTER A HEARING ON ae

MERITS OF A FACTUAL ISSUE, MADE BY A STATE

COURT OF COMPETENT JURISDICTION ,., EVIDENCED

BY A WRITTEN FINDING, WRITTEN OPINION, OR

OTHER RELIABLE AND ADEQUATE WRITTEN INDICIA,

SHALL BE PRESUMED TO BE CORRECT, UNLESS THE

APPLICANT SHALL Ya bie it OR IT SHALL OTHER-

WISE APPEAR, .., = HAT THE MERITS OF

es FACTUAL DISPUTE WERE NOT RESOLVED IN THE

OTATE COURT HEARING...

30

In LAVALLEE v, De_Le Rose, 410 U.S, 690 (1973), THis CourT

FURTHER HELD THAT AN OPINION OF THE STATE TRIAL COURT MEETS

THE REQUIREMENT OF 28 U.S.C, §2254(p)(1), IF a District Court

CAN REASONABLY CONCLUDE THAT RELIEF WOULD HAVE BEEN GRANTED

BY THE STATE COURT IF IT BELIEVED A DEFENDANT’S ALLEGATIONS,

HEREIN, THE CIRCUIT CoURT BELOW, W}THOUT ANY ANALYSIS OF

THE STATE COURT FACTUAL DETERMINATIONS ON THE CONFLICT OF

INTEREST QUESTION, GRANTED THE WRIT BASED ONLY ON THE STATE COURT

RECORD, BY REVERSING THE PENNSYLVANIA SUPREME COURT, AS WELL

AS THE ])ISTRICT CouRT, SOLELY UPON THE INCONSISTENT AND CONTRA-

DICTED TESTIMONY OF ONE OF RESPONDENT'S TRIAL ATTORUEYE, AND

WITHOUT ORDERING AN ADDITIONAL EVIDENTIARY HEARING, THE

14

WELL-ESTABLISHED THIRD CIRCUIT DECISIONAL * REQUIRES THAT

SEE, s.. Soe BE GRANTED TO pate te ite entre Loge).

STATE COURT FACTUAL FINDINGS MUST BE ACCEPTED AS TRUE AND

BURDEN ON PETITIONER TO ESTABLISH, BY CLEAR AND CONVINCING

VIDENCE, THAT STATE COURT FACTUAL DETERMINATIONS ARE ERRONEOUS;

TATE SUPREME COURT HAS MORE LATITUDE IN REVIEWING TRIAL COURT

DETERMINATIONS THAN A FEDERAL COURT DOES IN RULING ON HABEAS

RPUS PETITIO di AE N

she a) > 5pD) M6 As Lye CERT, DENIED, APT 1975)

(WHERE NO INDICATION THAT THE STATE COURT UTILIZED AN IMPROPER

CONSTITUTIONAL STANDARD, AND THE FACTS AS RELATED BY PETITIONER

WOULD ENTITLE HIM TO RELIEF UNDER THE PREVAILING CONSTITUTIONAL

STANDARD, A FEDERAL COURT SHOULD ASSUME THAT THE STATE COURT

WOULD PROPERLY APPLY THE LAW IF IT BELIEVED PETITIONER'S STORY:

THEREFORE A STATE COURT DECISION DENYING RELIEF IS IN ALL

LIKELIHOOD BASED ON DISCREDITING PETITIONER S TESTIMONY AND

ENTITLED TO THE PRESUMPTION OF CORRECTNESS),

{> Wyirep Spares gy ach Met ¢ bis

a6} .2D 13 RD UIR, WHEN LEGAL PROBLEMS ARE PRESENTED

WHICH ARE NOT EASILY RESOLVED EVEN ON THE BASIS OF CLEARLY

ESTABLISHED FACTS, AN EVIDENTIARY HEARING IS AN A EQORTJORI

PROPOSITION IF THE STATE RECORD IS DEFICIENT IN CRITICAL AREAS),

31

CouRT SERIOUSLY INTRUDED UPON THE PRINCIPLES OF COMITY AND THE

PROPER DEFERENCE WHICH MUST BE GIVEN TO STATE COURT CRIMINAL

DETERMINATIONS, —

RESPONDENT SOUGHT COLLATERAL RELIEF IN THE STATE COURT

SYSTEM UNDER THE PENNSYLVANIA Post ConvICTION HEARING ACT,

IN HIS PETITION HE ALLEGED, WITHOUT PROVIDING SUPPORTING FACTS,

THAT TRIAL COUNSEL WERE INEFFECTIVE IN FAILING TO PRESENT ANY

DEFENSE AND THAT SUCH FAILURE WAS BASED UPON THE DUAL REPRESEN-

TATION INVOLVED, AT THE CONCLUSION OF THE HEARING, THE CourT

HELD THAT RESPONDENT WAS NOT DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL, BASED UPON THE TESTIMONY oF JupGe D1Bona,

RESPONDENT'S CHIEF TRIAL COUNSEL. IN REVIEWING THIS DETER-

MINATION, THE PENNSYLVANIA SUPREME COURT HELD THAT THERE WAS

NO CONFLICT OF INTEREST, SINCE THERE WAS NO DUAL REPRESENTATION

IN THE TRADITIONAL SENSE, AND THAT RESPONDENT’S CHIEF TRIAL

COUNSEL, JuDGE DiBonA, INDICATED THAT HIS STEWARDSHIP WAS IN

NO WAY AFFECTED BY THE CONSIDERATION OF THE CO-DEFENDANTS’ CASES,

BUT WAS SOLELY A PRODUCT OF WHAT HE CONS I DERED TO BE THE BEST

COURSE IN HIS REPRESENTATION OF SULLIVAN, THE CouRT FURTHER

HELD THAT THE DECISION NOT TO PRESENT A DEFENSE WAS BASED UPON

the Act oF JANUARY 2 4266, P.L, (1965) 1580 sl, 19 P.S, s1180-1

ET SEQ, (SUPPLEMENT 1979),

7

(\PINION OF STATE TRIAL COURT DENYING COLLATERAL RELIEF, APPENDIX,

INFRA, AT 7F,

(GvMoNWEALTH v, SULLIVAN, APPENDIX D, INFRA, AT 34D,

32

Jupc6e D1Bona’ gBELIEF THAT THERE WAS INSUFFICIENT EVIDENCE FOR

A CONVICTION, THE District CourT concLUDED THAT THE STATE

COURT FINDINGS WERE SUPPORTED BY THE STATE RECORD. ’

SUCCINCTLY STATED, THE CrrcurIT CouRT BELOW GRANTED THE WRIT

BY RELYING SOLELY UPON THE CONTRADICTED AND CONTRADICTORY TESTIMONY

OF ONE OF RESPONDENT'S ATTORNEYS TO THE EFFECT THAT NO DEFENSE

WAS PRESENTED BECAUSE, AMONG OTHER THINGS, THERE WAS A FEAR OF

EXPOSING ALLEGED DEFENSE WITNESSES BEFORE THE CO-DEFENDANTS’

TRIALS. THE ISSUE UPON WHICH THE COURT BELOW REVERSED THE

District CouRT WAS PRESENTED TO, AND REJECTED BY, THE STATE

HEARING COURT AND THE STATE Supreme Court, OF NECESSITY, THOSE

COURTS RELIED UPON THE TESTIMONY OF JuDGE D1Bona.

SINCE THE STATE COURT DECISIONS WERE SUPPORTED BY THE RECORD

TESTIMONY OF JUDGE DIBONA, THE CouRT BELOW SHOULD HAVE DENIED

RELIEF. THUS, THE COURT'S DECISION DEPARTED FROM SETTLED

PRINCIPLES OF HABEAS CORPUS REVIEW WHEN IT IGNORED SUCH TEST]-

MONY AND ENGAGED IN ITS OWN FACT FINDING, UNITED STATES EX REL,

SULLIVAN Vv, CUYLER ET AL,, APPENDIx B, INFRA, AT 15-17R, If

THE COURT DETERMINED THAT THE STATE COURT FINDINGS WERE INCOMPLETE

OR INAPPROPRIATE, THE ONLY PROPER REMEDY WAS TO REMAND THE CASE

TO THE District CourT FOR INDEPENDENT FINDINGS OF FACT AFTER A

COMMONWEALTH v. SuLivan, APPENDIX D, INFRA, AT 34D,

ae STATES EX REL, SuLiivan vy, CuYLER, Appenpix C, INFRA, AT

5-8C, '

33

PLENARY EVIDENTIARY HEARING. JOWNSEND V. SAIN, 372 U.S, 293 (1963),

UNITED STATES Ex REL, McNair v, STATE oF New Jersey, 492 F.2p

1307 (3rp Cir. 1974); Unitep STATES £x REL, Foye v, STATE oF

New Jersey, 547 F,2p 217 (3rp Crr. 1977),

BECAUSE THE COURT BELOW VIOLATED SETTLED PRINCIPLES OF

HABEAS CORPUS REVIEW AS ENUNCIATED BY THIS CouRT AND CONGRESS,

IT IS RESPECTFULLY REQUESTED THAT THIS CouRT ISSUE A WRIT OF

CERTIORARI TO REVIEW THE DECISION OF THE CouRT OF APPEALS FOR

THE THIRD CIRCUIT IN ORDER TO RESTORE COMITY TO ITS PROPER

PLACE IN THE CIRCUIT,

34

CONCLUS LON

FOR THE FOREGOING REASONS, THE COMMONWEALTH OF PENNSYLVANIA

RESPECTFULLY REQUESTS THAT A WRIT OF CERTIORARI ISSUE TO REVIEW

THE DECISION BELOW,

RESPECTFULLY SUBMITTED,

MICHAEL F, HENR

i [Pape

ss Psi Tomer rm Um

ISTRICT ATTORNEY

2490 CENTRE SAYARE WEST

PHILADELPHIA,

ENNSYLVANIA 19102