Respondents Brief — Mickens v. Taylor

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sep 4 20 | 7 “Sipe Cour S|

No. 00-9285 SEP 4 200)

GFFICE OF TNE CLERK |

In The

Supreme Court of the United States

WALTER MICKENS, JR.,

Petitioner,

JOHN B. TAYLOR, WARDEN, SUSSEX I STATE PRISON,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

BRIEF OF RESPONDENT

RaANboiPH A. BEALES

Attorney General of Virginia

Rosert Q. Harris

Assistant Attorney General

Counsel of Record

OrFficE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

EST AVAILABLE COPY)

QUESTION PRESENTED

Did the Court of Appeals err in holding that a defen-

dant must show an actual conflict of interest and an

adverse effect in order to establish a Sixth Amendment

violation where a trial court fails to inquire into a poten-

tial conflict of interest about which it reasonably should

have known?

il ill

TABLE OF CONTENTS TABLE OF CONTENTS - Continued

Page Page

: B. Mickens Failed to Show That an Actual

QUESTION PRESENTED. .....sescsesessenuvesuenen i Conflict Adversely Affected Saunders’

TABLE OF CONTENTS...:...00.0500000yunenenae ii Performance .......-...-...+seeeeeeeeess 38

TABLE OF AUTHORITIES..................000000 iv e. Consent Dovense .................-.. 40

STATEMENT OF THE CASE..............-0000008 1 ee OM over no evoveeee, =

3. Unrelated “Deficient” Investigation... 46

1. The Celene. ..cscccessesseccscneseussnnenenee 1

eee as Reccesescosesccccccces: 48

II. The Trial and First Appeal.................. 4

Ill. The Second Sentencing ............-....+05. 7

IV. The Second Appeal and Habeas Corpus Pro-

COOGIAES ... cc bencesccecescessseeGkueeneeeee 8

V. The Federal Habeas Corpus Proceedings ..... 8

SUMMARY OF ARGUMENT..............00000 00s 16

ARGUMENT. ......0.5000505.05se9 me nee 17

I. THE COURT OF APPEALS CORRECTLY HELD

THAT A FEDERAL HABEAS CORPUS PETI-

TIONER MUST SHOW AN ACTUAL CON-

FLICT OF INTEREST AND AN ADVERSE

EFFECT TO ESTABLISH A SIXTH AMEND-

MENT VIOLATION WHERE A TRIAL COURT

FAILS TO INQUIRE INTO A POTENTIAL CON-

FLICT OF INTEREST ABOUT WHICH IT REA-

SONABLY SHOULD HAVE KNOWN .......... 17

Il. THE DISTRICT COURT AND COURT OF

APPEALS CORRECTLY APPLIED SULLIVAN

IN REJECTING MICKENS’ CLAIMS......... 34

A. Saunders’ Successive Representation

Presented a Reduced Risk of “Actual

Conbtict” ....ccccccceveseceeneseesnneene 37

TABLE OF AUTHORITIES

Page

Cases

Anderson v. City of Bessemer City, 470 U.S. 564

Dh sodsne céuddnd shucks seebedeehadten aaaneieen 40

Burger v. Kemp, 483 U.S. 776 (1987) ...... 33, 37, 39, 44

Calderon v. Thompson, 523 U.S. 538 (1998)............ 43

Crisp v. Duckworth, 743 F.2d 580 (7th Cir. 1984),

cert. denied, 469 U.S. 1226 (1985) .................. 34

Cuyler v. Sullivan, 446 U.S. 335 (1980)........... passim

Dixson v. Quarles, 627 F. Supp. 50 (E.D. Mich),

aff'd, 781 F.3d 534 (6th Cir. 1985), cert. denied,

et ee Se NS nb wn oddccess bdkendeunteansinds 34

Dukes v. Warden, 406 U.S. 250 (1972) ............. 26, 37

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.

Ss obnvees bdudontices odbeebaauichneatdandebeiens 23

Freund v. Butterworth, 165 F.3d 839 (11th Cir.), cert.

GR, Ge Gs ee Ga bbe dkcccundadcostcsiance 39

Glasser v. United States, 315 U.S. 60

Pinceskivcchmesidkiuiiich ented 19, 20, 21, 24, 26, 37

Gray v. Netherland, 518 U.S. 152 (1996) .............. 18

Hoke v. Commonwealth, 377 S.E.2d 595 (Va.), cert.

See, Ge He See Ged acdccconensntescedednuc 41

Holloway v. Arkansas, 435 U.S. 475 (1978)........ passim

Holloway v. State, 539 S.W.2d 435

Ss oben ddnubadatidebakduh dans etcethedhebbhedty 22

Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989),

cert. denied, 493 U.S. 1051 (1990).................. 34

TABLE OF AUTHORITIES - Continued

Page

Lipson v. United States, 233 F.3d 942 (7th Cir. 2000) .... 28

Mackall v. Commonwealth, 372 S.E.2d 759 (Va.

1988), cert. denied, 492 U.S. 925 (1989)............. 37

Mannhalt v. Reed, 847 F.2d 576 (9th Cir.), cert.

denied, 488 U.S. 908 (1988).............0 0 cece cece 38

Mickens v. Commonwealth, 442 S.E.2d 679 (Va. 1994) ..... 6

Mickens v. Commonwealth, 457 S.E.2d 9 (Va. 1995)..... 6

Mickens v. Commonwealth, 478 S.E.2d 302 (Va. 1996) ..... 8

Mickens v. Greene, 74 F. Supp. 2d 586 (E.D. Va.

Pe Sede ncdceceedtcnesgenoseucenséesesovesseses 11

Mickens v. Virginia, 513 U.S. 922 (1994)............... 6

Mickens v. Virginia, 520 U.S. 1269 (1997).............. 8

_Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001) ....... 15

Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000) ....... 15

Mosley v. Scully, 908 F. Supp. 1120 (E.D. N.Y. 1995) .... 34

Murray v. Carrier, 477 U.S. 478 (1986) .............-. 26

Nix v. Whiteside, 475 US. 157 (1986)...............-. 36

Perrillo v. Johnson, 79 F.3d 441 (5th Cir. 1996)........ 39

Saffle v. Parks, 494 U.S. 484 (1990).............00005s 29

Simmons v. South Carolina, 512 U.S. 154 (1994)........ 6

Smith v. Commonwealth, 248 S.E.2d 135 (Va. 1978),

cert. denied, 441 U.S. 967 (1979) ............2005555 43

Smith v. Robbins, 528 U.S. 259 (2000) ................ 32

Smith v. White, 815 F.2d 1401 (11th Cir.), cert.

Bote GEE TE, GE Ger cn cccccccccccctctccceces 38

TABLE OF AUTHORITIES - Continued

Page

Stoia v. United States, 109 F.3d 392 (7th Cir.

iad -Jvetisudissadedeade 6inesueesctanehanéed 28, 39

Strickland v. Washington, 466 U.S. 668

i achctnihpnneeedhie Kein oh es 18, 26, 32, 34, 42

Swidler & Berlin v. United States, 524 U.S. 399

RE ee ee eee 36

Teague v. Lane, 489 U.S. 288 (1989) ..............545. 29

Thacker v. Bordenkircher, 590 F.2d 640 (6th Cir.),

cert. denied, 442 U.S. 912 (1979) ................45. 23

United States v. Addonizio, 442 U.S. 178 (1979) ....... 34

United States v. Atkinson, 565 F.2d 1283 (4th Cir.

1977), cert. denied, 436 U.S. 944 (1978)............. 23

United States v. Carrigan, 543 F.2d 1053 (2d Cir.

Dt, dic thnnededhikhanaddinkhaehonan aoeneteed 22, 23

United States v. Cox, 580 F.2d 317 (8th Cir. 1978),

cert. denied, 439 U.S. 1075 (1979) ...............4.. 23

United States v. Cronic, 466 U.S. 648 (1984) ....... 36, 32

United States v. Fahey, 769 F.2d 829 (1st Cir.

Dh tcl cebiehieladeehinn vebtbatestaucotes 28, 38, 39

United States v. Frady, 456 U.S. 152 (1982)........ 26, 34

United States v. Gambino, 864 F.2d 1064 (3d Cir.

1988), cert. denied, 492 U.S. 906 (1989).......... 38, 39

United States v. Kutas, 542 F.2d 527 (9th Cir. 1976),

cert. denied, 429 U.S. 1073 (1977) ...............45. 23

United States v. Lovano, 420 F.2d 769 (2d Cir.), cert.

Cs Be Ge ES Geo oon hnee 6hbtucéncn cece 23

Vii

TABLE OF AUTHORITIES - Continued

United States v. Mandell, 525 F.2d 671 (7th Cir.)

(1975), cert. denied, 423 U.S. 1049 (1976)........... 23

United States v. Mays, 77 F.3d 906 (6th Cir. 1996) .... 39

United States v. Migliaccio, 34 F.3d 1517 (10th Cir.

Phcknus ous dnadateshednnesnedbedacebseeeenel 28, 39

United States v. Miskinis, 966 F.2d 1263 (9th Cir.

Dict d<¢sdnenbhndee ban ban we 6ban bk beens aes ae 28, 39

United States v. Morrison, 449 U.S. 361 (1981)........ 18

United States v. Tatum, 943 F.2d 370 (4th Cir. 1991) .... 28

Weeks v. Commonwealth, 450 S.E.2d 379 (Va. 1994),

covt. Gemted, S16 US. GBD (ISS) . occ cccccccess fF

Wheat v. United States, 486 U.S. 153 (1988)........ 34, 36

Winfield v. Commonwealth, 301 S.E.2d 15 (Va. 1983),

csvt. Gomted, SIG US. GED (IGS) oc cccccccccccccces 42

Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993), cert.

A EE 39

Wood v. Georgia, 450 U.S. 261 (1981)............. passim

STATUTES AND RULES

§ 16.1-241(1), Code of Virginia .................2.455. 4

§ 18.2-67.7, Code of Virginia. . : peageeyehechessasceen 41

§ 19.2-163.7, Code of Virginia....................255- 8

1993 Va. Acts of the Gen. Assembly, c. 978.......... 45

i er or rn cae can st envenseanveesbann< 39

STATEMENT OF THE CASE

I. The Crime

On Monday, March 30, 1992, the body of seventeen-

year-old Timothy Jason Hall was discovered on a bank of

the James River in downtown Newport News, Virginia,

lying face down on a mattress and partially covered by a

sheet of plywood. (JA 15). Hall’s body was nude from the

waist down, except for socks, and his legs were spread

apart approximately twelve inches. (JA 15-16, 18). The

mattress was underneath the overhang of an abandoned

construction company on 29th Street. (JA 9).

As petitioner concedes, the murder was particularly

violent and gruesome. The autopsy identified 143 stab

wounds. (JA 11). Most of the wounds were “paired” stab

injuries which were consistent with two blades opened

on a “Swiss Army” knife. (JA 13). The medical examiner

also identified thirteen single stab wounds, one extending

three and a half inches into Hall’s head. (JA 11-12). The

photographs of the victim show most of the wounds

clustered on Hall’s back and shoulders, and the back and

top of his head, indicating he was attacked from behind.

(JA 399-404). Hall’s face had been sliced across the fore-

head and nose by long, “paired” incised wounds. (JA

401-402). Twenty-five wounds caused significant enough

damage to internal organs and blood vessels to be classi-

fied as lethal injuries, but none would have caused imme-

diate death. (JA 12). Hall bled to death after

approximately 40 minutes. (JA 13).

There were no defensive wounds noted on the vic-

tim’s body. (JA 12). Bruising on Hall’s neck was consis-

tent with a chokehold. (JA 11, 86-87). There were no

injuries to Hall’s penis, scrotum or anal ring. (JA 14).

At the scene, police noticed bloody “transfer stains”

on the outside of the victim’s thighs and a substance

resembling suntan lotion close to the victim’s anus. (JA

16-17). The police also recovered pubic hairs from Hali’s

buttocks, and semen stains from the mattress. (JA 16-17).

Hall’s blue jeans and underwear were found washed up

at the river’s edge. (JA 18). His shoes were not found at

the murder scene.

For “two or three months” before his death, Tim Hall

was living with fourteen-year-old Raheem Gordon and

Raheem’s father, Bernard Gordon, in an apartment at 28th

and Washington Streets near the James River in down-

town Newport News. (JA 19). Tim and Raheem shared a

bedroom and also often shared clothing. (JA 20). Raheem

last saw Tim alive on Saturday evening, March 26, 1992,

when Hall gave Raheem a ride to a party at the nearby

Towers Apartments. Tim was wearing a pair of Raheem’s

Nike sneakers. (JA 20). Hall was expected to attend the

party later in the evening. Evidence at the Gordons’

apartment indicated that Hall had returned there at some

point after 9:30 p.m. and changed shirts, but never

arrived at the party. Raheem was not concerned with his

friend’s absence on Sunday, thinking that Tim might have

stayed at his mother’s home. On Monday, Raheem and

his father noticed the police bringing a body up from the

river and learned at that time that Hall had been killed.

(Tr. 5/26/93, pp. 564-569).

On Saturday, April 4, 1992, police responded to a cal!

that a man had assaulted a juvenile. The officers found

Mickens on a bicycle in the parking lot of the abandoned

construction company next to the river. Mickens

attempted to elude the police but was arrested nearby on

the assault charge. (JA 27, 35-37). After being advised of

the Miranda warnings, Mickens was questioned about the

Hall murder. Mickens displayed guilty knowledge when

he volunteered, “You didn’t find any knife on me, did

you,” before police had mentioned how Hall was killed.

(JA 28-29). The police watched Mickens “break into a full

sweat to the point where he had sweat dripping off his

nose and his face” when they discussed DNA testing of

trace evidence. (JA 28-29).

Mickens was served with arrest warrants for the

murder of Timothy Hall on the morning of Sunday, April

5, 1992. While the detective read the warrants aloud,

Mickens “put his fingers in his ears” and “rocked back

and forth” in his chair. (JA 37). He stopped rocking to

review the photographs of his victim and then said, “I

accept the warrants, I accept the charges.” (JA 38,

399-404). He then explained, “Mother fucker, if I told you

I accept the warrants that means I’m guilty, don’t it. Take

me to jail, 1 want to go to jail, I want to go now, I want to

go now.” (JA 39-40).

Two days later the police found Michael Jacobs, a

local drug addict, wearing the Nike sneakers that Tim

had been wearing when Raheem last saw him. (JA 20-21,

23). Jacobs had purchased the shoes from Mickens for

$5.00 the previous week. (JA 23).

II. The Trial and First Appeal

Because Mickens’ victim was a juvenile, the prelimi-

nary proceedings were conducted in juvenile court. See

Va. Code § 16.1-241(I). On April 6, 1992, a juvenile court

judge appointed Bryan Saunders and Warren Keeling to

represent Mickens on the capital murder and related

charges. (JA 2).!

As petitioner concedes, the prosecution had a very

strong case proving Mickens’ guilt. In addition to

Mickens’ guilty knowledge, inculpatory statements and

previous possession of the murdered boy’s shoes, a foren-

sic expert in hair analysis matched Mickens’ pubic hair

sample to the hairs recovered from Hall’s buttocks “in all

identifiable microscopic characteristics.” (JA 32). The fact

that the hairs still had tissue attached to the roots indi-

cated that they had been forcibly removed, consistent

with the rubbing of Mickens’ genitals against Hall’s but-

tocks. (JA 33-34). DNA testing on a human sperm stain

! The form order for the appointment of counsel printed in

the Joint Appendix is incorrect. It lists only “B. Saunders” as the

attorney appointed. (JA 2). The actual form lists Saunders and

Warren Keeling. See photocopy in Fourth Circuit Joint

Appendix, Volume I, page 1. Mickens originally had been

charged with two capital murders, one involving Hall and

another involving Jonathan Woskobonik. (Fed. Hearing Tr.

1/13/99, pp. 38-39). Woskobonik also had been stabbed over 70

times and his body also was found naked from the waist down.

(Id. at p. 65). Saunders and Keeling were combined as counsel

on both cases. (Id. at 39). The Commonwealth, however, did not

prosecute the Woskobonik case.

found on the mattress excluded Hall as a contributor, but

matched Mickens’ DNA profile. (JA 29-30).

Other evidence showed that Mickens was seen acting

suspiciously in the area near the riverside location at

about the same time as Hall last was seen alive. Two of

Raheem’s friends left the party at the Towers Apartments

at approximately 8:00 p.m. and sat for a while in a park

adjacent to the apartments and the riverside. They saw

Mickens hiding in the bushes, looking at them. (JA 21-22;

Tr. 5/26/93, p. 605).

The prosecution also presented the testimony of

Tyrone Brister, who had shared a holding cell with

Mickens in March of 1993.2 In discussing with each other

why they were in custody, Mickens stated: “They said |

stabbed somebody 140 something times in the head,” and

then, in a low voice, said, “Which I did.” (JA 26). Mickens

also related to Brister that the police had accused him of

sodomizing his victim and stealing his sneakers. Again

Mickens lowered his voice and said, “which I did.” (Id.).

Mickens was tried before a jury in the Newport News

Circuit Court on May 24-June 2, 1993, on indictments

charging the capital murder of Timothy Hall in the com-

mission of attempted forcible sodomy and a separate

2 Brister was not a typical “cell mate” witness. He had been

incarcerated briefly, released in March 1993, and was not subject

to receiving any benefit for his testimony. He contacted the

prosecutor the night before Mickens'’ trial started. (Tr. 6/1/93, p.

681). Brister reported that Mickens acknowledged killing two

people. (JA 24-25). Prior to his testimony, the trial judge and

prosecutor instructed Brister not to mention the second murder.

(JA 25; Tr. 6/1/93, p. 703).

charge of attempted forcible sodomy. The Commonwealth

presented the evidence outlined above. For the defense,

Catherine Mickens, petitioner’s mother, testified gener-

ally that Mickens always arrived home before dark. (JA

42). Mickens testified that he was at home every night by

9:00 p.m. (JA 44). Mickens specifically denied killing, or

even knowing, Tim Hall. (JA 44-45, 47).

The jury convicted Mickens of both charges. (Tr.

6/3/93, p. 999). In a separate capital sentencing proceed-

ing on June 4, 1993, the prosecution presented evidence

of Mickens’ prior convictions, parole violations, and the

testimony of several victims of Mickens’ prior crimes. (Tr.

6/4/93, pp. 1039-1059). The defense presented character

evidence from a family friend and Mickens’ aunt. (Tr.

6/4/93, pp. 1059-1066). Mickens’ mother and sister testi-

fied about his upbringing. (Tr. 6/4/93, pp. 1067-1079).

Mickens addressed the jury, repeated his denial of

involvement in these crimes, and expressed sympathy for

Hall’s family. (Tr. 6/4/93, pp. 1089-1091). On June 7, 1993,

the jury sentenced Mickens to death, finding both the

future dangerousness and vileness aggravating factors.

(Tr. 6/7/93, pp. 1144-1145).

The Virginia Supreme Court affirmed the convictions

and death sentence on direct appeal. Mickens v. Common-

wealth, 442 S.E.2d 678 (Va. 1994) (Mickens I). This Court,

however, remanded the case for reconsideration follow-

ing the decision in Simmons v. South Carolina, 512 U.S. 154

(1994), see Mickens v. Virginia, 513 U.S. 922 (1994), and the

Virginia Supreme Court ordered a new sentencing hear-

ing. Mickens v. Commonwealth, 457 S.E.2d 9 (Va. 1995)

(Mickens II).

III. The Second Sentencing

A second jury was selected for a new sentencing

hearing held February 5-8, 1996. The Commonwealth

again presented the evidence concerning the murder,

Mickens’ parole history, and prior felony convictions:

attempted grand larceny from the person in 1973; sod-

omy, robbery and grand larceny in 1974; and sodomy and

robbery in 1980. (JA 87-88, 91-92). Charles Siron, one of

the sodomy victims, testified that Mickens assaulted him

in the Newport News City Jail in 1974, by putting a razor

blade to his throat at night while he was sleeping, and

forcing him into a shower area where he sodomized him.

(JA 88-89). Ruby Bunn, a school teacher and one of the

robbery victims, described how Mickens came into her

second grade classroom, demanded her pocketbook and

held a knife a few inches from a child’s head while she

gave Mickens her money. (JA 90-91).

Mickens again presented the testimony of his mother

about his upbringing. (Tr. 2/7/96, pp. 454-458). However,

this time counsel also took advantage of the fact that the

second jury would be told of Mickens’ parole ineligibility:

counsel presented the testimony of Darius Robinson, an

employee of the Virginia Department of Corrections, who

described the living conditions Mickens would experi-

ence if sentenced to life imprisonment without parole,

and Jacquelyn Brown, Mickens’ prison counselor, who

testified that Mickens had adjusted to confinement. (JA

92-96; Tr. 2/7/96, pp. 452-454).2 The jury found both

statutory aggravating factors and sentenced Mickens to

death. After considering a probation report and other

evidence presented during a post-sentencing hearing on

March 29, 1996, the trial court imposed the sentence fixed

by the jury. (JA 99-102).

IV. The Second Appeal and Habeas Corpus Proceed-

ings

On appeal, the Virginia Supreme Court upheld

Mickens’ death sentence, Mickens v. Commonwealth, 478

S.E.2d 302 (Va. 1996) (Mickens III), and this Court denied

certiorari on June 9, 1997. Mickens v. Virginia, 520 U.S.

1269 (1997). On November 7, 1996, the Newport News

Circuit Court appointed counsel to represent Mickens for

his state court habeas corpus proceeding. See Va. Code

§ 19.2-163.7. (JA 133). A habeas corpus petition was filed

in the Virginia Supreme Court on August 7, 1997, and

dismissed on December 15, 1997. (JA 126). Mickens did

not raise any allegation of a conflict of interest. (JA

103-123).

V. The Federal Habeas Corpus Proceedings

On June 25, 1998, Mickens filed a federal habeas

corpus petition in the United States District Court in

Richmond and asserted for the first time that one of his

two trial attorneys, Bryan Saunders, had had a conflict of

3 Petitioner refers to the mitigation evidence as “scant”

(Pet. Brief at 5), but never has identified any additional

mitigation evidence.

interest because he previously had represented Tim Hall.

The district court conducted an evidentiary hearing on

January 13, 1999, which revealed the following:

Tim Hall’s mother swore out an assault and battery

complaint against her son on February 21, 1992, alleging

that Hall grabbed her and shoved her to the floor in their

home. (JA 393, 394). Approximately three weeks later,

Hall was charged with possession of a concealed weapon

after a policeman searched Hall’s car pursuant to a traffic

stop and discovered a serrated bread knife wrapped in

newspaper. (JA 391, 392). A juvenile detention hearing

was held on March 20, 1992, and Substitute Juvenile

Court Judge Paul Criver appointed Bryan Saunders to

represent Hall for both charges. (JA 396). The hearing was

continued until April 3, 1992. (Id.).

Between March 20 and March 28, 1992, Hall met with

Saunders one time, at Saunders’ law office, for fifteen to

thirty minutes. (JA 189). Saunders spoke with Hall only

about the two charges. (JA 234-237). He learned that

Hall’s mother would not be pursuing the assault charge.

(JA 222). He previously had determined that inadequacies

in the police probable cause statement provided a legal

defense to the “concealed weapon” charge. (JA 190,

221-222).

Unbeknownst to Saunders, on Friday, April 3, the

date scheduled for Hall's detention hearing, Juvenile

. Court Judge Aundria Foster made an entry in the juvenile

court’s docket sheet, stating: “Remove from docket Def.

deceased.” (JA 390). When Saunders arrived for the hear-

ing, he was told by someone outside of court that Hall

was dead and the charges dismissed. (JA 143, 188).

Mickens was arrested on Saturday, April 4, 1992. On

Monday, April 6, 1992, Juvenile Court Judge Foster

appointed Saunders and Warren Keeling to represent

Mickens. (JA 2). Judge Foster also conducted the prelimi-

nary hearing on July 17, 1992. Saunders successfully per-

suaded Judge Foster that no probable cause existed for

two charges - abduction and robbery - and those charges

thus were not certified to the circuit court for trial. (JA

254-255). Saunders and Keeling represented Mickens in

the juvenile court proceedings, the 1993 trial, the 1996

resentencing, and both direct appeals.

An article published in a Newport News newspaper

shortly after Hall’s murder contained interviews with

several of Hall’s friends. One friend speculated that Hall

might have been a homosexual prostitute, but the same

article contradicted that assertion. (JA 397-398). The arti-

cle described Hall’s assault charge as based on an inci-

dent where Hall pushed his mother during an argument.

(JA 398). Hall’s friends also reported that the police had

“picked him up” for carrying a concealed weapon. (Id.).

The article referenced the fact that Hall had a social

worker and was living with the Gordon family at the time

of his death. (/d.).

Saunders’ co-counsel, Keeling, was lead counsel for

sentencing. (JA 157-158, 172-173, 183). He read the news-

paper article and knew about Hall’s juvenile charges and

the speculation about his prostitution. Keeling investi-

gated but found no evidence to indicate that Hall was a

prostitute. (JA 162-164, 168-169, 173-177, 179). Saunders

reviewed police reports concerning the early investiga-

tion of Hall’s murder and noted several instances where

friends and associates of Hall had provided information

about Hall’s activities before his death and leads concern-

ing individuals who might have harmed Hall. (JA

205-206, 207, 424, 426-427). Saunders could not recall in

the 1999 evidentiary hearing all the details of the investi-

gations he had conducted in 1992 concerning these

“leads.” (JA 207, 209-210, 229). Mickens offered no evi-

dence during the evidentiary hearing to show that Hall

had been a homosexual prostitute, that any additional

“negative information” about Hall existed, or that any of

the “leads” could be confirmed.* Mickens did not testify.

The district court found that Mickens had failed to

demonstrate an actual conflict of interest or any adverse

effect resulting from Saunders’ prior representation of

Hall. Mickens v. Greene, 74 F.Supp.2d 586, 615 (E.D. Va.

1999). (JA 309). First, the district court found that

“Mickens has failed to demonstrate a correlation, much

less a substantial and particular relationship, between

Saunders’ representation of Hall for assault and posses-

sion of a concealed weapon and his representation of

Mickens on attempted forcible sodomy and capital mur-

der charges.” (JA 289). “Saunders’ representation of Hall

was very limited in scope and duration.” (JA 288). The

* The district court granted Mickens’ discovery of Hall's

juvenile files maintained by the social services agency and

_ provided funding for an investigator to assist in developing the

factual support for a conflict of interest claim. (JA 126-127,

130-131, 139-140, 256-257). In responding to the Warden’s

motion to dismiss the federal habeas petition, Mickens offered

an affidavit from his investigator containing hearsay to the

effect that individuals in Hall’s neighborhood reported rumors

of Hall's supposed “prostitution.” (JA 137-138). However, no

evidence to that effect was presented in the federal hearing.

representation of Hall did not involve the same subject

matter as the charges facing Mickens and did not involve

the same criminal transactions, events or witnesses. (Id.).

Second, the district court found as a matter of fact

that Saunders’ brief contacts with Hall had not produced

information from the attorney-client relationship that had

any relationship to Mickens’ case. “[T]he record here

confirms that Saunders did not learn any confidential

information from Hall that was relevant to Mickens’

defense either on the merits or at sentencing.” (JA 291).

Saunders had obtained knowledge of Hall’s juvenile

charges, but that information simply was not relevant to

Mickens’ defense because of Mickens’ testimony. (JA 292).

Third, the district court disapproved of Saunders’

failure to appreciate the ethical issues posed in these

circumstances but, after hearing the testimony and con-

sidering petitioner's evidence, found that Mickens failed

to establish that Saunders possessed any personal interest

in concealing the alleged ethical conflict in representing

Mickens. “[T]he evidence shows that, regrettably,

Saunders never struggled with the ethical issues envi-

sioned by Mickens.” (JA 290). However, “the Court is

unconvinced that .... selfish ‘loyalties or interests’

existed, much less motivated Saunders’ silence” about the

prior representation of Hall. (JA 304).

Fourth, the district court carefully considered and

rejected Mickens’ allegations of an “adverse effect”: it

found that a “consent defense” was an “implausible alter-

native theory” foreclosed by the evidence, including

choke marks found on the victim’s neck, blood stains on

Hall’s thighs, the 143 stab wounds, and Mickens’ own

insistence that he did not know Hail and had no involve-

ment in these crimes. (JA 293-294). “Saunders discarded

consent as a strategy not because of any loyalty to Hall,

but because neither the facts nor Mickens’ testimony was

compatible with such a strategy.” (Id.).

The district court further determined that using

“negative information” about Hall at sentencing, based

on a premise that it would mitigate the severity of a

capital murder, was inconsistent with Mickens’ own

statements of innocence and sympathy and would have

appeared disingenuous. (JA 295). The court found that,

despite “diligent investigation by federal habeas coun-

sel,” Mickens had failed to uncover any evidence that

Hall was a male prostitute. (JA 295). It found that such

evidence would have been useful only in connection with

the unavailable consent defense, and “the propensity of

that approach to backfire made it an unreasonable alter-

nate strategy or tactic at sentencing.” (JA 295). The Court

noted that even if such “negative information” existed

and could be considered as offering a plausible strategy,

it was Mickens’ second lawyer, Keeling, and not

Saunders, who was in charge of preparing for sentencing

and Keeling not only was aware of Hall’s juvenile charges

and other circumstances of his life from a newspaper

report, but did not consider any of that information rele-

vant. (JA 296).

The court found that Saunders had not engaged in

extensive plea negotiations because the Commonwealth's

Attorney had rejected any plea agreement for a sentence

less than death. (JA 296-297). The court determined that

-—

using information about Hall’s juvenile charge of assaul-

ting his mother to “rebut” her 1996 victim impact state-

ment containing assertions of grief would have been

inconsistent with Mickens’ statements of sympathy

towards Hall’s family and, in any event, not a viable

tactic in the context of Virginia’s sentencing process. (JA

297-299). Mickens’ allegations that Saunders conducted a

deficient investigation into leads about other possible

suspects were rejected by the district court because they

lacked any connection to the alleged actual conflict.

“Mickens may carry this burden by showing that pursuit

of these leads was inherently in conflict with Saunders’

other loyalties or interests or by other probative evidence

that he did not pursue the leads because of those inter-

ests. This he has failed to do.” (JA 303).

Finally, the district court determined that the state

juvenile court judge had the “capacity to connect”

Mickens’ charge with the deceased defendant, and that

the “heinous nature of the crime and the publicity it

received” made it unlikely that the connection would

escape notice. (JA 307). Because Mickens was charged

with a capital crime, the district court deemed Juvenile

Court Judge Foster “no doubt aware” that Mickens might

need to counter victim impact evidence. (JA 308). The

district court thus concluded that this prospect constitu-

ted under Wood v. Georgia, 450 U.S. 261 (1981), a “poten-

tial conflict” that Judge Foster should have recognized

when she appointed Saunders. (JA 307-308). The district

court, however, did not read Wood as requiring an auto-

matic reversal. Rather, the federal evidentiary hearing

had clarified the fact that the possible conflict of interest

“never ripened into an actual conflict nor was Saunders’

advocacy impaired.” (JA 309). In the absence of an actual

conflict adversely affecting Saunders’ representation, the dis-

trict court concluded that Mickens had failed to prove that

the alleged conflict “worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitu-

tional dimensions,” and therefore he could not demonstrate

“prejudice” from his state court default.5 (JA 309).

A divided Fourth Circuit panel disagreed with the

district court’s determination that no actual conflict had

been shown. Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000).

(JA 318-354). The panel majority found an actual conflict

of interest from what it divined as

Saunders’ personal interest in concealing the previous

Hall representation. (JA 336). Additionally, the panel

majority asserted that the Hall representation impaired

Saunders’ ability to investigate Hall’s background and a

possible “consent” defense. (JA 338-341). The panel

majority believed that Wood v. Georgia required “reversal”

if: (1) the trial court failed to inquire even though it knew

or reasonably should have known of an “apparent con-

flict;” (2) the defendant did not waive conflict-free coun-

sel; and (3) an actual conflict of interest existed. (JA 328).

The Fourth Circuit granted the Warden's petition for

rehearing en banc and in a 7-3 decision affirmed the

district court’s denial of habeas corpus relief. Mickens v.

5 It is uncontested that Mickens’ conflict claims were

defaulted because they never were raised in state court. (JA

280). The district court found that the confidential nature of

Saunders’ juvenile court representation of Hall provided

“cause” for the failure to raise the claims in state court. (JA

280-283).

Taylor, 240 F.3d 348 (4th Cir. 2001) (en banc). (JA 355-389).

The majority concluded that Wood v. Georgia did not

change the rule of Cuyler v. Sullivan, 446 U.S. 335 (1980),

requiring a petitioner to demonstrate that an actual con-

flict adversely affected his attorney's representation when

no objection to the representation was raised at trial. (JA

371-372). Because Mickens had not demonstrated that the

alleged conflict adversely affected Saunders’ representa-

tion, the en banc majority affirmed the denial of federal

habeas corpus relief. (JA 372-377). The court specifically

declined to decide whether the juvenile court judge who

appointed Saunders knew or should have known of a

potential conflict of interest because of Saunders’ pre-

vious representation of Hall (JA 366), and also specifically

declined to reach Mickens’ argument that he had estab-

lished an actual conflict. (JA 372).

SUMMARY OF ARGUMENT

Wood v. Georgia did not alter existing precedent that

required a petitioner to demonstrate a Sixth Amendment

violation by proof of an actual conflict that adversely

affected counsel’s performance. The Court’s reference to

“actual conflict” in the Wood remand order necessarily

included the meaning that term had been given in Cuyler

v. Sullivan less than a year before. The Court discussed

the “actual conflict” in Wood in terms of a conflict that

adversely affected the representation. Mickens’ argument

that Wood silently overruled or otherwise altered in any

way Sullivan's statement of the Sixth Amendment stan-

dard simply by omitting in the remand order the words,

“that adversely affected counsel’s representation,” cannot

be defended by reference to Wood.

The district court conducted a thorough evidentiary

hearing and made findings of fact that the two represen-

tations were entirely unrelated, Hall’s juvenile charges

produced no confidences that could be relevant to

Mickens’ defense, and Saunders in fact recognized no

ethical conflict that would have created a conflicting per-

sonal interest. The district court’s findings, which no

judge of the court below even challenged, cannot be

deemed clearly erroneous and are binding in this case.

The en banc decision of the Fourth Circuit correctly held

Sullivan and Wood to require a showing of actual conflict

and adverse effect, and that Court correctly rejected

Mickens’ claims on the strength of the district court's

findings because petitioner failed to show that the Hall

representation had any effect on Mickens’ case.

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY HELD

THAT A FEDERAL HABEAS CORFUS PETI-

TIONER MUST SHOW AN ACTUAL CONFLICT

OF INTEREST AND AN ADVERSE EFFECT TO

ESTABLISH A SIXTH AMENDMENT VIOLATION

WHERE A TRIAL COURT FAILS TO INQUIRE

INTO A POTENTIAL CONFLICT OF INTEREST

ABOUT WHICH IT REASONABLY SHOULD HAVE

KNOWN.

The question presented in this case must be answered

in the context of a prisoner seeking to void a presump-

tively valid state court final judgment in a federal habeas

corpus action based upon a defaulted claim of trial court

error. Two courts now have determined that the conflict

of interest Mickens alleged had no effect on the fairness

of Mickens’ trial or the reliability of his convictions.

Settled precedent forecloses federal court review of

Mickens’ defaulted allegation absent a demonstration of

both cause for his default and actual prejudice flowing

therefrom. See Gray v. Netherland, 518 U.S. 152, 161-162

(1996). Even for preserved claims, a federal habeas peti-

tioner must demonstrate that an interference with the

right to counsel had some effect on the judgment, see

Strickland v. Washington,.466 U.S. 668, 691 (1984), United

States v. Morrison, 449 U.S. 361, 364-365 (1981), and in

conflict cases this means showing that counsel “actively

represented conflicting interests” before “prejudice” will

be presumed. Sullivan, 446 U.S. at 350. Wood v. Georgia

provides no reason for this Court to abandon precedent

and award Mickens habeas corpus relief on a defaulted

claim without having demonstrated any “prejudice,” or

to find a Sixth Amendment violation in the absence of

any effect on the lawyer’s representation or the state

court judgment.

In Wood, on direct review of petitioners’ probation

revocation, this Court identified circumstances in the

record which strongly suggested that petitioners’ counsel

had a conflict of interest. The attorney “may not have

pursued [petitioners’] interests single-mindedly,” but,

because the parties had not briefed, argued or developed

the record on the issue, the Court could not be “sure

whether counsel was influenced in his basic strategic

decisions by the interests of the employer who hired

him.” 450 U.S. at 271-272. The trial court had sufficient

notice of an “apparent” conflict but had failed to inquire.

Id. at 272. This Court ordered the case returned to the

state trial court to conduct a hearing: “If the court finds

that an actual conflict of interest existed at that time, and

that there was no valid waiver of the right to independent

counsel, it must hold a new revocation hearing that is

untainted by a legal representative serving conflicting

interests.” Id. at 273-274.

Solely on the basis of this statement, Mickens argues

that Wood changed the standard governing conflict

claims. He asserts that the state juvenile court judge who

appointed counsel should have initiated an inquiry into

the possibility of a conflict of interest because of

Saunders’ previous representation of Hall. Under

Mickens’ view of Wood, the absence of such an inquiry

means that he may obtain federal habeas corpus relief by

showing an “actual conflict” without regard to whether it

had any .effect whatsoever on counsel’s representation.

Mickens’ argument, however, rests on a fundamental

misunderstanding of this Court’s Sixth Amendment juris-

prudence. At the time Wood was decided, this Court

already had established certain well-defined require-

ments for a valid Sixth Amendment conflict of interest

claim. Since the direct appeal decision in Glasser v. United

States, 315 U.S. 60 (1942), it has been settled that the Sixth

Amendment right to the effective assistance of counsel

contemplates the assistance of a lawyer who is not bur-

dened with conflicting interests. Id. at 70. At the same

time, Glasser also clearly demonstrated that joint repre-

sentation was not a per se violation of the Sixth Amend-

ment right to counsel. The district court had appointed

Glasser’s retained counsel to serve as counsel for a code-

fendant, Kretske, despite Glasser’s objection and his

attorney’s warning of a possible conflict of interest. At

the joint trial for conspiracy, counsel failed to cross-exam-

ine a prosecution witness who implicated Kretske, but

not Glasser, and failed to object to arguably inadmissible

testimony linking Glasser to the conspiracy. These fail-

ures “luminate[d] the cross-purposes under which [coun-

sel] was laboring,” id. -at 73, and demonstrated that

counsel's “struggle to serve two masters cannot seriously

be doubted.” Id. at 75. Having demonstrated the damag-

ing conflicting interests, Glasser was not obligated to

prove that the conflict prejudiced his defense: “The right

to have the assistance of counsel is too fundamental and

absolute to allow courts to engage in nice calculations as

to the amount of prejudice arising from its denial.” Id. at

76. Kretske, on the other hand, was not entitled to relief

because he had not demonstrated how the denial of

Glasser’s right to counsel had prejudiced him. Id. at

76-77.

In Holloway v. Arkansas, 435 U.S. 475 (1978), another

direct appeal case, the Court reaffirmed the view that

joint representation did not presumptively establish con-

stitutional error.© A public defender had been appointed

to represent three codefendants who were tried together.

The attorney unsuccessfully moved the trial court to

¢ “One principle applicable here emerges from Glasser

without ambiguity. Requiring or permitting a single attorney to

represent codefendants .. . is not per se violative of

constitutional guarantees of effective assistance of counsel.”

Holloway, 435 U.S. at 482.

- 21

appoint separate counsel for each defendant because his

confidential communications with the men indicated a

real risk of conflicting interests. The state court also

denied a similar motion renewed on the day of trial, after

each defendant indicated his desire to testify and after

counsel represented that his knowledge of confidences

removed his ability to question them. Id. at 477-478. This

Court held that the trial court’s ruling denied the defen-

dants “the guarantee of assistance of counsel.” Id. at 484.

The decision acknowledged that lower courts since

Glasser had “differed on how strong a showing of conflict

must be made, or how certain the reviewing court must

be that the asserted conflict existed,” and had disagreed

concerning “the scope and nature of the affirmative duty

of the trial judge,” but Holloway resolved neither issue. Id.

at 483. Instead, this Court relied upon trial counsel's

representations because the attorney was “in the best

position professionally and ethically to determine when a

conflict of interest exists or will probably develop,” and

had acted on his “obligation, upon discovering a conflict

of interests, to advise the court at once of the problem.”

Id. at 485-486. The Court refused to require the defen-

dants to show “prejudice” in these circumstances and,

relying on Glasser, expressly held that “whenever a trial

court improperly requires joint representation over

timely objection reversal is automatic.” Id. at 488.7

7 Justice Powell’s dissenting opinion took issue with the

Court equating the trial court’s failure to inquire with a finding

of conflicting interests. 435 U.S. at 492-493. His dissent proposed

following the rules developed in lower courts that required

showing “some specific instance of prejudice, some real conflict

of interest, resulting from a joint representation” before finding

Two years later, in Cuyler v. Sullivan, a federal habeas

corpus case, the Court addressed the two issues expressly

reserved in Holloway: “whether a state trial judge must

inquire into the propriety of multiple representation even

though no party lodges an objection,” and “whether the

mere possibility of a conflict of interest warrants the

conclusion that the defendant was deprived of his right

to counsel.” 446 U.S. at 345. The Court in Sullivan decided

that, “[a]bsent special circumstances,” the Sixth Amend-

ment does not require a trial court to initiate an inquiry

into possible conflicts simply because of multiple repre-

sentation. “Unless the trial court knows or reasonably

should know that a particular conflict exists, the court

need not initiate an inquiry.” Id. at 346-347 (emphasis

added).

Resolving the second question in Sullivan produced

the Court's first explicit discussion of the concept of

“actual conflict” as it now is used in the context of Sixth

Amendment claims.® Sullivan held that “the possibility of

a Sixth Amendment violation. Id. at 494 n.3, quoting United States

v. Carrigan, 543 F.2d 1053, 1055-1056 (2d Cir. 1976). If a trial court

failed to conduct an inquiry after a timely objection, the dissent

recommended shifting the burden of proof on the issue of

“prejudice” to the prosecution. Id. at 495.

8 The words “actual conflict” appeared in Holloway, 435

U.S. at 481, describing the state court’s rejection of the

defendants’ claim. See Holloway v. State, 539 S.W.2d 435, 439

(1976) (describing “majority rule” as requiring some “evidence

of an actual conflict of interest or evidence pointing to a

substantial possibility of a conflict of interest” before joint

representation is reversible error). Sullivan noted that a

“substantial majority” of the federal courts of appeals at that

time required a defendant to establish a Sixth Amendment

conflict is insufficient to impugn a criminal conviction.”

Id. at 350. To distinguish clearly the “actual conflict” that

would violate the Sixth Amendment from the “possible

conflict” that would not, the Court purposefully and

unambiguously coupled “conflict” and “effect.”

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objec-

tion at trial must demonstrate that an actual

conflict of interest adversely affected his law-

yer’s performance.

Id. at 348. The Court referred interchangeably to an

“actual conflict of interest,” id. at 348, n.14, “a conflict of

violation by identifying an “actual conflict of interest,” 446 U.S.

348 n.14, and the decisions cited also had defined “actual

conflict” in terms of affecting the representation of counsel or

prejudicing the defense. See United States v. Lovano, 420 F.2d 769,

773 (2d Cir.) (“some specific instance of prejudice, real conflict

of interest, resulting from a joint representation must be shown

to exist”), cert. denied, 397 U.S. 1071 (1970); United States v.

Atkinson, 565 F.2d 1283, 1284-1285 (4th Cir. 1977) (adopting

Lovano), cert. denied, 436 U.S. 944 (1978); Foxworth v. Wainwright,

516 F.2d 1072, 1077-1079 (Sth Cir. 1975) (plausible defense

foreclosed because of damage to co-defendants constituted

actual substantial conflicts); Thacker v. Bordenkircher, 590 F.2d

640, 641-642 (6th Cir.) (defendants had consistent defenses and

no actual conflict or prejudice), cert. denied, 442 U.S. 912 (1979);

United States v. Mandell, 525 F.2d 671, 678 (7th Cir. 1975) (“There

must be a showing of a conflict of interests based on the record

and not on mere speculation”), cert. denied, 423 U.S. 1049 (1976);

United States v. Cox, 580 F.2d 317, 323 (8th Cir. 1978) (possibility

of another strategy was insufficient to establish actual conflict),

cert. denied, 439 U.S. 1075 (1979); United States v. Kutas, 542 F.2d

527, 529 (9th Cir. 1976) (must show actual conflict prejudiced

defense), cert. denied, 429 U.S. 1073 (1977); Carrigan, 543 F.2d at

1056 (in absence of inquiry by court, government bears burden

on issue of prejudice).

interest [that] actually affected the adequacy of the repre-

sentation,” id. at 349 (emphasis added), and “actively

represent[ing] conflicting interests.” Id. at 350. Then, dis-

pelling any doubt about the ruling, the definition of what

constitutes an impermissible conflict was repeated in the

closing paragraph: “In order to demonstrate a violation of

his Sixth Amendment rights, a defendant must establish

that an actual conflict of interest adversely affected his

lawyer’s performance.” Id. at 350.

Significantly, Sullivan's requirement that the alleged

conflict be “actual” in terms of having manifested itself in

some “adverse effect” before it could state a valid Sixth

Amendment claim, certainly was within the body of pre-

cedent governing conflict claims. The Court had rejected

the idea that multiple representation was presumptively

unconstitutional in both Glasser and Holloway. Glasser had

stressed the failures of counsel that had resulted from

counsel's desire to protect Kretske’s interests and which

revealed the “struggle to serve two masters.” 315 U.S. at

75. In Holloway, the Court recognized that Glasser had

found actual impairments in the lawyer’s performance in

concluding that conflicting interests had been shown, 435

U.S. at 482, and the Court divided specifically on the

need for a finding that a conflict had “prejudiced” or

“hampered” Holloway’s defense. Id. at 492-493, 496 (Pow-

ell, J., dissenting).

In Sullivan, the Court acknowledged that the require-

ment of actual conflict adversely affecting the representa-

tion was different from Holloway’s “automatic reversal”

rule because Holloway “did not consider whether the

alleged conflict actually existed.” Sullivan, 446 U.S. at 345.

Sullivan, however, did not overrule Holloway. Instead, the

Court took great care to confine Holloway’s “automatic

reversal” rule to the particular factual circumstance of

denying a defendant who objects to counsel's representa-

tion the opportunity to prove a conflict:

[A] defendant who objects to multiple represen-

tation must have the opportunity to show that

potential conflicts impermissibly imperil his

right to a fair trial. But unless the trial court fails

to afford such an opportunity, a reviewing court

cannot presume that the possibility for conflict

has resulted in ineffective assistance of counsel.

Id. at 348 (emphasis added).

Removing all doubt concerning the scope of Hollo-

way, the Court repeated its definitional distinction of Hol-

loway, see Sullivan, 446 U.S. at 348, making clear that the

general rule is the overarching Sixth Amendment stan-

dard of actual conflict adversely affecting counsel's per-

formance and that an exception to this general rule exists

only for a defendant who raises an objection at trial.

Mickens thus misstates Sullivan when he asserts that the

Court defined the Sixth Amendment violation in terms of

whether a “judicial duty to initiate an inquiry arises.”

(Pet. Brief at 27). The Court certainly acknowledged the

duty of a trial court to inquire when it “knows or reason-

ably should know that a particular conflict exists,” but

the Court could not have made it any plainer that the

Sixth Amendment violation turned on showing that an

actual conflict adversely affected counsel’s performance.

446 U.S. at 348 and 350.

At the same time, Sullivan ended any dispute over

whether “prejudice,” in the harmless error sense, needed

to be proved or disproved. Prejudice is presumed, as both

Glasser and Holloway intended, but only after the peti-

tioner “shows that a conflict of interest actually affected

the adequacy of his representation.”? 446 U.S. at 349.

Sullivan did not attempt to define fully the distinctive

“actual conflict” that “adversely affected” a lawyer’s rep-

resentation beyond illustrating what was evident in prior

cases. The obvious “struggle to serve two masters” iden-

tified in Glasser, 315 U.S. at 75, had “impaired the

defense.” Sullivan, 446 U.S. at 439. In Dukes v. Warden, 406

U.S. 250, 256 (1972), no “lapse in representation” warrant-

ing relief was shown when Dukes’ attorney also repre-

sented two codefendants who shifted blame for the

crimes to Dukes after he pleaded guilty. See Sullivan, 446

U.S. at 349. These contrasting examples served to make

Sullivan’s point: a possible or hypothetical conflict of

interest is made concrete - actual — by evidence

demonstrating that in fact it adversely affected counsel's

9 “Prejudice” is not a one-size-fits-all concept, but is given

different meanings in different contexts. In Glasser and

Holloway, the Court discussed “prejudice” in rejecting

consideration of “harmless error.” The “prejudice” that Sullivan

presumed “is not quite the per se rule of prejudice” that exists

for the outright denial, or prevention of the assistance, of

counsel. Strickland, 466 U.S. at 692; United States v. Cronic, 466

U.S. 648, 659 and n.25 (1984). Mickens’ conflict claim is a

defaulted claim which, as the district court properly found,

independently requires a showing of “prejudice” — that the

errors in his trial “worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimension.” United States v. Frady, 456 U.S. 152,

170 (1982); Murray v. Carrier, 477 U.S. 478, 494 (1986).

representation. Like the sound of the proverbial tree fal-

ling in the forest, the actual conflict cannot be known to

exist without its discernable imprint, its adverse effect.

One week after Sullivan was announced, the Court

granted certiorari in Wood to decide the constitutionality

of imprisoning probationers who had failed to make

installment payments on fines. See Wood v. Georgia, 446

U.S. 951 (1980) (order granting certiorari); Wood, 450 U.S.

at 264 (identifying certiorari issue). After oral argument,

however, the Court identified factual circumstances

which strongly suggested the possibility that the

employer and the attorney representing the petitioners

might have orchestrated the petitioners’ predicament

simply as a way to create a test case for the employer on

the constitutional issue. If the attorney “was serving the

employer's interest in setting a precedent,” there was a

“clear possibility of conflict of interest.” Id. at 267-268.

The state’s attorney repeatedly had brought the potential

for conflict to the attention of the trial court, but the

judge conducted no inquiry into the issue. Wood, 450 U.S.

at 265 n.5, 273. The Court remanded the case to determine

if an “actual conflict” existed. Id. at 273-274. Wood, how-

ever, never suggested that the Court was adopting any

different meaning of “actual conflict” than had been set

out a year earlier in Sullivan.

Mickens now insists that Wood’s specific reference to

“actual conflict” in its remand order, without an addi-

tional and equally specific reference to “adverse effect,”

should be taken to mean that the Court intentionally

uncoupled Sullivan's deliberate link of conflict and

effect.!° Mickens sees Wood as announcing a new Sixth

Amendment standard to fill in an imagined gap in the

Court’s jurisprudence. Mickens reads Wood to hold that:

conflict claims arise in “three separate circumstances”

and each circumstance requires its own rule; no rule

previously had been announced for Wood's circumstances

which lay somewhere between Holloway and Sullivan; and

subdividing the Sullivan rule would satisfy Mickens’ need

for an intermediate rule. (Pet. Brief at 29-35). Borrowing

from the Fourth Circuit dissenters, Mickens concludes

that Wood announced a rule he has fashioned for relief in

his own case:

A defendant establishes a Sixth Amendment

violation when there is no objection to counsel's

representation, but the trial judge knew or rea-

sonably should have known about an apparent

conflict and conducted no inquiry, and the

defendant shows an “actual conflict” without

regard to an “adverse effect.”

(Pet. Brief at 30). (JA 328).

10 The Fourth Circuit, like other courts of appeals, has

approached the task of applying Sullivan by defining and

examining “actual conflict” and “adverse effect” as distinct

concepts, while recognizing that Sullivan requires linking the

“conflict” and “effect.” See, e.g., United States v. Tatum, 943 F.2d

370, 375 (4th Cir. 1991); United States v. Fahey, 769 F.2d 829, 836

(1st Cir. 1985); Lipson v. United States, 233 F.3d 942, 946 (7th Cir.

2000); United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.

1992); United States v. Migliaccio, 34 F.3d 1517, 1526 (10th Cir.

1994). “The two requirements, an actual conflict of interest

resulting in an adverse effect on counsel’s performance, are

often intertwined, making the factual analyses of them

overlap.” Tatum, 943 F.2d at 375. See also Stoia v. United States,

109 F.3d 392, 397 (7th Cir. 1997).

Of course, the new constitutional doctrine Mickens

discerns has no history before Wood, was never discussed

in Wood, and has not been suggested by this Court since

Wood. The Court’s opinion certainly does not support the

remarkable supposition that Wood intended to introduce a

new variation in Sixth Amendment jurisprudence with-

out briefing, argument or even discussion, and to do so

through the subtle mechanism of omitting the words

“adverse effect” from the remand order. Certainly Wood

cannot be read to have silently overruled Sullivan's plain

and recent statement that a Sixth Amendment violation

requires a showing of an actual conflict adversely affecting

the representation.'! As the en banc Fourth Circuit

1! Mickens’ extended discussion of why the rule he

advocates would be a good idea simply fails to recognize the

fact that Sullivan necessarily rejected the idea of granting

presumptive “adverse effect” to habeas petitioners in Mickens’

circumstances. Sullivan has not been overruled and Mickens’

federal habeas action is not the place for the Court to announce

new rules of law. See Saffle v. Parks, 494 U.S. 484, 487 (1990)

(Court will not afnounce or apply new rule on collateral

review); Teague v. Lane, 489 U.S. 288 (1989). Mickens’ accusation

of bad faith on the part of trial counsel as a reason to dispense

with showing an “adverse effect” (Pet. Brief at 33-34) is wholly

unwarranted and, moreover, a poor basis upon which to fashion

constitutional principles. Saunders represented Mickens

vigorously through preliminary hearing, the trial, and two

appeals in the Virginia Supreme Court, including successfully

eliminating robbery and abduction charges before Mickens’

1993 trial and winning Mickens a new sentencing hearing in

1995. The district court’s dissatisfaction with some of Saunders’

decisions does not alter the fact that the District Judge who saw

and heard the witnesses found no actual conflict of interest or

adverse effect.

accurately observed, “Wood's terse instruction to the trial

court on remand cannot bear the constitutional weight

Mickens ascribes to it.” (JA 372).

Indeed, Wood’s only comment on Sixth Amendment

conflict precedent was a single mention of Sullivan in

footnote 18, responding to a dissenting opinion which

had criticized the majority for using Sullivan to assume

“jurisdiction over a claim otherwise beyond its reach.”

Justice White’s dissent states that we have gone

beyond the recent decision in Cuyler v. Sullivan.

Yet nothing in that case rules out the raising of a

conflict-of-interest problem that is apparent in

the record. Moreover, Sullivan mandates a rever-

sal when the trial court has failed to make an

inquiry even though it “knows or reasonably

should know that a particular conflict exists.”

Wood, 450 U.S. at 272 n.18. (citation omitted).'2 From this

reference, Mickens infers an intent to create a separate

rule of “actual conflict” without any effect in a situation

where the trial court was on notice of a particular con-

flict. The Court’s reference to “reversal,” however, must

be understood as authorizing the action the Court took in

that case. direct review, this Court vacated the under-

lying judgment of revocation to permit a judicial inquiry

to determine the existence of a conflict this Court found

to be “strongly suggest[ed].” Id. at 273.

12 Wood was not a Sixth Amendment case. Wood, 450 U.S. at

273 (“we base our decision in this case on due process

grounds”). The employees possessed a due process right to

counsel for the probation revocation hearing, which also

included a right to conflict-free counsel. Id. at 271.

The Court explained the “apparent conflict” it identi-

fied in Wood just as it had explained “actual conflict” in

Sullivan — by reference to various “indications” of adverse

effects: the employer's failure to pay the employees’ fines,

450 U.S. at 267; the attorney’s failure at the revocation

hearing to “dwell on the apparent bad faith of his own

employer,” id. at 268, n.14; the lack of protest by trial

counsel to the amounts of fines imposed on indigent

employees, id. at 267-268; and the effort to conceal even

the name of the employer. Id. at 269, n.16. On the appel-

late record, the Court was unable to resolve the conflict

issue it had identified, but the Court’s concern with these

“indications” manifesting conflicting interests allowed no

uncertainty about what the state court was commanded

to do on remand. |

Mickens focuses on the bare words of Wood’s remand

order yet overlooks the fact that the Court already had

described the circumstances that would constitute a vio-

lation of the right to counsel in that case. If the differing

goals of employer and employee disabled counsel from

“pursu[ing] petitioners’ interests single-mindedly,” id. at

271-272, and if “counsel was influenced in his basic strategic

decisions by the interests of the employer who hired him,” id.

at 272 (emphasis added), “the due process rights [to

counsel] of petitioners were not respected at the revoca-

tion hearing, or at earlier stages of the proceedings

below.” Id. By focusing the inquiry on the influence on

counsel's representation, Wood undeniably applied

Sullivan’s requirement of an actual corflict adversely

ateeting the representation.'* The Fourth Circuit thus

correctly ruled that the Court’s reference to “actual con-

flict” in these circumstances necessarily also included the

“adverse effect” inquiry.

This Court consistently has maintained Sullivan's

standard of actual conflict adversely affecting a lawyer’s

representation. See, e.g., Strickland, 466 U.S. at 692 (preju-

dice presumed only if defendant “demonstrates that

counsel actively represented conflicting interests,” and

“an actual conflict of interest adversely affected his law-

yer’s performance”); United States v. Cronic, 466 U.S. at

661 n.28 (citing Sullivan, ineffectiveness presumed when

counsel “actually represented conflicting interests”);

Smith v. Robbins, 528 U.S. 259, 287 (2000) (“prejudice is

presumed when counsel is burdened by an actual conflict

of interest, although in such a case we do require the

defendant to show that the conflict adversely affected his

counsel’s performance.”).

13 It is possible to read Wood as implicitly finding an “actual

conflict,” as that term now often is defined, i.e., one attorney

actively representing the diverging interests of several clients,

because the lawyer in Wood actively represented multiple clients

and the Court identified potential areas where the parties’

interests diverged. It also may be possible to read Wood as

necessarily including an implied finding of “adverse effect”

because the Court found ways that petitioners’ lawyer's

performance may have been “impaired.” But the Court's

instruction to the state court concerning the showing that would

establish a violation of the right to counsel, was “whether

counsel was influenced in his basic strategic decisions by the

employer who hired him.” This instruction linked the concepts

of conflict and effect, just as Sullivan had contemplated.

—

In Burger v. Kemp, 483 U.S. 776 (1987), the Court

expressly reaffirmed Sullivan's linkage of “actual conflict”

and “adverse effect” in the context of an alleged conflict

from law partners representing codefendants in separate

trials. The Court upheld the district court’s findings that

petitioner’s attorney had not actively represented com-

peting interests, id. at 783, and that petitioner had not

demonstrated that an actual conflict adversely affected

counsel’s performance. Id. at 785. The inextricable linkage

of conflict and effect is clear in the Court’s decision:

petitioner’s alleged “actual conflict” was based on coun-

sel’s strategic decisions in the handling of his appeal. Id.

at 784. The district court’s finding that the lawyer had not

been motivated by his partner’s representation demon-

strated that the possible conflicting interest had not

affected his performance and no “actual conflict” existed.

Id. at 784-785.

It is not mere chance that this Court’s Sixth Amend-

ment conflict of interest decisions in direct appeal cases

look first to the issue of trial court error and that Sullivan,

a habeas case, looks to the effect of the alleged actual

conflicts. Review for trial court error, and actions taken to

address such error as occurred in Wood, are essential

appellate functions. Sullivan contemplates the possibility

that trial court error in failing to inquire into possible

conflict situations may go unnoticed until collateral pro-

ceedings, and concludes that it is not inappropriate to

require the habeas petitioner to make the showing

required by Sullivan to establish a Sixth Amendment vio-

lation before vacating a presumptively valid state court

final judgment. “It has, of course, long been settled law

that an error that may justify reversal on direct appeal

will not necessarily support a collateral attack on a final

judgment.” Frady, 456 U.S. at 165, quoting, United States v.

Addonizio, 442 U.S. 178, 184 (1979). The Sixth Amend-

ment’s purpose in assuring fairness in the adversary

criminal process, Wheat v. United States, 486 U.S. 153, 158

(1988), Strickland, 466 U.S. at 691-692, is preserved fully

by the Sullivan rule.

Il. THE DISTRICT COURT AND COURT OF

APPEALS CORRECTLY APPLIED SULLIVAN IN

REJECTING MICKENS’ CLAIMS.

Mickens’ argument in favor of finding a constitu-

tional conflict of interest relies heavily on the immediate

visceral impact of learning that a lawyer previously rep-

resented the victim of his current client.’4 This Court

consistently has refused, however, to create categories of

legal representations which would constitute per se con-

flicting interests prohibited by the Sixth Amendment and,

14 The factual circumstances presented by this case are by

no means unique. See, e.g., Crisp v. Duckworth, 743 F.2d 580, 588

(7th Cir. 1984) (finding no conflict where defense counsel

previously represented murder victim in unrelated criminal

action), cert. denied, 469 U.S. 1226 (1985); Kirkpatrick v. Butler, 870

F.2d 276, 284 (5th Cir. 1989) (finding no conflict based on

defense counsel’s friendship with, and prior representation of,

members of murder victim’s family), cert. denied, 493 U.S. 1051

(1990); Mosley v. Scully, 908 F. Supp. 1120 (E.D. N.Y. 1995)

(finding no actual conflict where counsel previously

represented murder victim on unrelated charges); Dixson v.

Quarles, 627 F. Supp. 50 (E.D. Mich.) (no actual conflict where

defense counsel previously represented murder victim), aff'd,

781 F.3d 534 (6th Cir. 1985), cert. denied, 479 U.S. 935 (1986).

as discussed, Sullivan requires the showing of an actual

conflict of interest adversely affecting counsel’s performance.

Mickers relies on the particular instances of “actual

conflict” found only by the two judges of the Fourth Circuit

panel majority, but his argument primarily stresses the single

claim that Saunders obtained confidential information about

Hall’s background which he could not use in Mickens’

defense or to rebut family victim-impact testimony.’ (Pet.

_15 Judge Michael's opinion for the panel majority identified

an “actual conflict” in the following ways: (1) Saunders

possessed a residual duty to maintain Tim Hall’s secrets and

confidences even after the representation ended which

allegedly conflicted with Mickens’ interest in his lawyer

pursuing a reasonable pre-trial investigation, including an

investigation of Hall’s character and background; (2) a member

of Hall’s family might offer “victim impact” testimony at

sentencing, but Saunders’ duty to preserve Hall’s confidences

prevented him from investigating the victim’s relationships

with his family; and (3) Saunders’ failure to reveal the prior Hall

representation to Mickens and the trial court constituted an

ethical breach and Saunders’ supposed personal interest in

concealing his ethical lapse conflicted with Mickens’ interest in

conflict-free representation. |

Concerning the last item, Mickens merely adopts the panel

majority’s theory of an “actual conflict” based on Saunders’

alleged “ethical conflict” without separately arguing the point.

The district court’s specific and unchallenged factual findings,

however, directly refuted the basic factual assertions

underlying the theory because the district court found that

Saunders never recognized any conflicting interests and never

developed any personal interest in concealing the previous Hall

representation. (JA 290-291, 304-305). The en banc Fourth Circuit

correctly upheld the district court’s findings that Saunders had

not concealed his previous representation of Hall out of “a

conflicting personal interest in remaining assigned to the case.”

(JA 376).

Brief at 46). According to Mickens, Saunders’ duty to

maintain Hall’s confidences adversely affected his repre-

sentation because evidence existed that could have been

considered in formulating defense strategies based on

“consent” or “negative information” about the victim. He

argues that Saunders was prohibited ethically from mak-

ing choices whether or not to investigate Hall’s back-

ground and that this demonstrates sufficient impairment

of the representation to constitute an “adverse effect.”

(Pet. Brief at 47). Even assuming that Saunders ethically

was prohibited from revealing or acting on the limited

“confidential” information he received from his brief rep-

resentation of Hall, see Swidler & Berlin v. United States,

524 U.S. 399 (1998) (duty to preserve confidences con-

tinues after the death of the client), Mickens never has

demonstrated that Saunders and Keeling failed to make

reasonable investigations, much less that they failed as a

16 The Sixth Amendment standard clearly is not defined by

ethical rules that govern attorneys’ professional conduct. See

Nix v. Whiteside, 475 U.S. 157, 165 (1986) (“[B]reach of an ethical

duty does not necessarily make out a denial of the Sixth

Amendment guarantee of assistance of counsel”); Strickland, 466

U.S. at 668 (norms of practice are guides only). Ethical rules

necessarily are forward-looking, meant to anticipate potential

conflicts in advance. The prospective nature of such rules makes

them helpful for a trial court’s discretionary decision to

disqualify counsel and avoid even potential conflicts, see Wheat,

486 U.S. at 160-161, but less useful in the retrospective

assessment of harmful impact on counsel's representation.

Thus, the Court should decline the invitation of petitioner's

amici to abandon its precedents and delegate to the drafters of

rules of professional conduct the authority to determine the

reach of the Sixth Amendment.

result of Saunders’ previous unrelated representation of

Hall.

A. Saunders’ Successive Representation Presented

a Reduced Risk of “Actual Conflict.”

The claims of a conflict of interest here involve only a

successive representation. Saunders was appointed to

represent Hall for juvenile court charges and that repre-

sentation indisputably ended when the charges were dis-

missed. At that point in time, Saunders no longer had any

ability to take any action for or against Hall's interests in

that representation. Saunders never simultaneously repre-

sented Hall and Mickens. See Burger, 483 U.S. at 783 (any

“overlap of counsel” from law partners representing cod-

efendants “did not so infect [defense counsel's] represen-

tation as to constitute an active representation of

competing interests”); Mackall v. Commonwealth, 372

S.E.2d 759, 765 (Va. 1988) (defendant's attorney previ-

ously represented prosecution witness for an unrelated

matter; no conflict or effect because co-counsel cross-

examined witness), cert. denied, 492 U.S. 925 (1989).

The opportunities for conflicting interests to arise in

a successive representation of individuals who are not

codefendants or charged with factually related offenses

are far more limited than the risks associated with multi-

ple representation of codefendants in one trial, see, ¢.g.,

Glasser, Holloway, and Sullivan, or the multiple represen-

tation of codefendants in separate trials, as in Dukes and

Burger, or even Wood's circumstances of an attorney rep-

resenting the interests of a third party who is not charged

with an offense but is paying for, and perhaps control-

ling, the on-going representation of other defendants.'”

The absence of a concurrent representation simply

reduces the opportunity for friction between conflicting

interests.

B. Mickens Failed to Show That an Actual Conflict

Adversely Affected Saunders’ Performance.

The district court and Fourth Circuit rejected

Mickens’ claims of “adverse effect” because petitioner

failed to identify plausible and viable alternative defense

strategies available to Mickens that Saunders was pre-

vented from pursuing. (JA 376-377).'* The district court

17 The risks of shifting blame among codefendants,

inconsistent defenses, and accounting for the relative strength

or weakness of evidence against codefendants are not presented

in Mickens’ case and several circuit courts of appeal have

recognized that an actual conflict of interest is less likely to arise

in the circumstances of unrelated successive representations.

See United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir.- 1988),

cert. denied, 492 U.S. 906 (1989); Mannhalt v. Reed, 847 F.2d 576,

580 (9th Cir.), cert. denied, 488 U.S. 908 (1988); Smith v. White, 815

F.2d 1401, 1405 (11th Cir.), cert. denied, 484 U.S. 863 (1987); Fahey,

769 F.2d at 834.

18 As Mickens acknowledges, the courts of appeals have

adopted approaches to conflict claims after Sullivan that

necessarily blend the actual conflict and adverse effect inquiry

and, like the Fourth Circuit, require proof of alternative defense

strategies that may have been obstructed by conflicting

interests. (Pet. Brief at 37-38, n.57). See Fahey, 769 F.2d at 836

(defining “actual conflict” in terms of a showing of a “plausible

alternative defense strategy or tactic” that has “sufficient

substance to be a viable alternative,” but is “inherently in

conflict” with other interests or “not undertaken due to the

conducted a thorough evidentiary hearing and made

specific factual findings and credibility determinations

fully supported by the evidence. The en banc Fourth Cir-

cuit unambiguously upheld the district court’s findings

of fact in ruling that no “adverse effect” had been shown.

(JA 372-377). Mickens cannot substitute speculation for

“these heavily fact-based rulings,” see Burger, 483 U.S. at

785, and the district court's findings of fact concerning

Mickens’ allegations of an “actual conflict” cannot be

ignored, or “assumed” away, because Mickens finds them

inconvenient to his theory of the case. They are binding

on this Court and may be set aside only if “clearly

attorney’s other loyalties or interests”); Winkler v. Keane, 7 F.3d

304, 309 (2d Cir. 1993) (adopting Fahey alternative strategy/

“actual conflict” formulation to test “adverse effect”), cert.

denied, 511 U.S. 1022 (1994); Gambino, 864 F.2d at 1070-1071

(“Clearly, a defendant who establishes that his attorney rejected

a plausible defense because it conflicted with the interests of _

another client establishes not only an actual conflict but the

adverse effects of it.”); Perrillo v. Johnson, 79 F.3d 441, 449 (Sth

Cir. 1996) (adopting alternative defense standard for “adverse

effect”); United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996)

(conflict shown by instances in the record where attorney chose

between alterr.ative courses of action); Stoia, 109 F.3d at 395

(conflict has “adverse effect” if “there is a reasonable likelihood

that counsel’s performance somehow would have been

different”); Miskinis, 966 F.2d at 1268 (effect on

“likely”); Migliaccio, 34 F.3d at 1526 (“adverse effect” if

“seemingly valid or genuine alternative strategy” conflicted —

with other interests); Freund v. Butterworth, 165 F.3d 839, 860

(11th Cir.) (“adverse effect” shown if plausible and reasonable

strategy not pursued because linked to conflict), cert. denied, 528

U.S. 817 (1999).

erroneous.”!? F. R. Civ. P. Rule 52(a). See Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985).

1. Consent Defense

Mickens’ theory of “consent” is based on several

observations he makes concerning the crime scene, the

condition of Hall’s body, and a newspaper article which

contained speculation that Hall might have been a homo-

sexual prostitute and a description of the riverside loca-

tion as a hang-out for vagrants, winos, street people,

drug addicts, prostitutes and runaways.”° (JA 397-398).

19 Mickens’ repeated complaint that it is not appropriate to

rely on the “record” created by “conflicted” counsel cannot

circumvent the district judge’s findings. Mickens cannot merely

state that he has shown a conflict and then attack the record,

especially in the face of district court findings to the contrary.

More significantly, the “record” relied upon by the district court

is not limited to the trial record. It also includes the federal

evidentiary hearing where Mickens had the opportunity to

develop facts in support of his allegations, but failed to do so.

20 As the district court set them out, “Mickens points to the

following facts that made consent a plausible defense strategy:

(a) there were no ‘defensive’ stab wounds; (b) there was no

evidence that Hall was forced to the secluded area where he was

found; (c) there were rumors that Hall was a male prostitute and

that the area where Hall’s body was found was a known

gathering place for homosexuals; (d) there was no blood mixed

with Mickens’ semen stain on the mattress; and, (e) the mattress

where Hall’s body was found had been used for sexual activity

in the past.” (JA 292-293). Mickens argues that Hall must have

accompanied his killer voluntarily to the river in order to

engage in consensual sex because the only access to the location

was down a steep embankment and the killer could not have

forced Hall down a precarious hill. In addition to the obvious

point that an armed assailant probably could have forced Hall

Mickens postulates the following outlandish scenario:

Hall voluntarily accompanied someone to the isolated

location (Pet. Brief at 9-10) to have “consensual sex” (id.

at 45) which “ended unsatisfyingly,” then “some-

thing . . . happened” (id. at 49 n.74) - “assaultive behav-

ior, sexual mockery, or other forms of discreditable

activity by Hall” (id. at 14 n.28) - that “incited [someone]

to homicidal fury.” (Id. at 49 n.74). Someone then choked

Hall and “straddl[ed] Hall’s body,” “pinioning Hall while

stabbing him.” (Id.).?!

Although the district court granted Mickens an evi-

dentiary hearing, Mickens failed to show that any wit-

ness, or other competent and admissible evidence, ever

had existed to prove the supposed “prostitution.”?? (JA

down the bank, the testimony at the evidentiary hearing and a

diagram of the area demonstrate conclusively that the murder

location was easily assessable by way of a set of stairs leading

down to the river and only one block from Hall’s apartment and

the murder scene. (JA 8, 428).

21 The evidence established that sodomy, and more

specifically anal sodomy, undoubtedly was the goal of Hall’s

assailant: Hall’s body was face down; his trousers and

underwear removed and cast aside; his legs spread apart; a

lubricant found on Hall’s buttocks near his anus; and, pubic

hairs with roots, suggesting that they had been removed by

rubbing or other friction, found on Hall’s buttocks. Bloody

transfer stains on the outside of Hall’s thighs indicated that the

stabbing occurred before or during the sexual assault. The

absence of any injury to the boy’s anus contradicts any

suggestion that the act intended ever was completed.

22 Trial counsel could not rely on rumors, much less

hearsay reports of rumors in newspaper articles, to establish

Hall’s supposed “reputation.” See Va. Code § 18.2-67.7. See also

Hoke v. Commonwealth, 377 S.E.2d 595, 599 (Va. 1989) (“rape

295, 303). Hall’s juvenile charges did “not suggest that he

was a prostitute, much less that he consented to have sex

with Mickens” (JA 288), and Saunders’ representation of

Hall simply was not related to Mickens’ charges or a

consent defense. (JA 289, 291). The district court found

that the information available to counsel “foreclosed pre-

sentation of consent as a plausible defense.” (JA 293).

Saunders knew from police reports that Hall-occasionally

visited the riverside; Hall’s neck was bruised by a choke

hold; the bloody transfer stains on the back of his thighs

put the stabbing before or during a sexual assault; Hall

was stabbed 143 times from behind; and, “most impor-

tantly,” Mickens claimed that he did noi kill or even

know Hall.” (JA 293). Both attorneys testified without

reservation that in the absence of the defendant's

shield” statute bars “evidence of general reputation or opinion

of the unchaste character of the complaining witness in all

circumstances”), cert. denied, 491 U.S. 910 (1989); Winfield v.

Commonwealth, 301 S.E.2d 15, 20-21 (Va. 1983) (statute reversed

common law rule permitting opinion reputation evidence which

“has very little probative weight”; evidence showing rape

victim had reputation of prostitution based on specific acts with

third parties was inadmissible at common law and under

statute).

23 Mickens cannot avoid his own testimony by hinting that

“unconflicted” counsel might have persuaded him to testify

differently. Saunders and Keeling reasonably relied on Mickens’

denials in formulating his defense, see Strickland, 466 166 U.S. at 691,

and Mickens should not be heard to suggest that counsel should

have advocated that Mickens himself. In any event,

Mickens never testified in the federal hearing, and there is no

factual basis to indicate his versions of events ever would

change.

testimony consent simply was not a plausible or viable

defense. (JA 165, 182, 211-212, 245).%4

Inexplicably, Mickens fails even to mention that inde-

pendent co-counsel, Warren Keeling, had investigated the

rumors about Hall that were reported in the paper. (JA

173-175). Keeling took the lead at sentencing and investi-

gated the case independently of Saunders. Specifically,

Keeling spoke to Bernard Gordon, went to the Towers

neighborhood on several occasions, and spoke to others

about Hall, but was unable to confirm rumors of Hall’s

“prostitution.” (JA 173-175, 176). Thus, with respect to the

claim of failure to investigate Hall, Saunders’ prior repre-

sentation is irrelevant because Keeling independently

investigated the case, and Mickens never has alleged that

Keeling possessed any conflicting interests. (JA 161,

172-173, 183, 227). The district judge saw and heard the

witnesses testify and found that “Saunders discarded

consent as a strategy not because of any loyalty to Hall,

24 The defense of consent must be advanced by evidence.

Smith v. Commonwealth, 248 S.E.2d 135, 142 (Va. 1978), cert.

denied, 441 U.S. 967 (1979). In Smith, the defendant’s own

confession contained information similar to Mickens’ “facts”:

Smith met his victim on an isolated beach and engaged her in

friendly conversation as she accompanied him to a wooded

area, and there were no defensive wounds. Id. at 142. Smith,

however, had not claimed that intercourse was consensual. Id.

This evidence was found insufficient as a matter of law to

present a defense of consent. Id. Of course, this Court has

that murder is “a fate more frequent among rape

victims than friendly sex partners.” Calderon v. Thompson, 523

U.S. 538, 561 (1988) (citation omitted).

but because neither the facts nor Mickens’ testimony was

compatible with such a strategy.”

(JA 294). The Fourth Circuit correctly upheld the district

court’s fact-intensive finding that consent was not a via-

ble defense strategy. (JA 374-375).

2. Negative Information

Mickens also argues that Saunders’ inability to use

confidential information about Hall’s juvenile charges

resulted in Saunders’ failure to investigate Hall’s back-

ground to develop “negative information” about his vic-

tim and his relationships with his family as part of his

sentencing defense. Again he relies on the unsubstanti-

ated rumors after Hall’s murder suggesting homosexual

activities. He also relies on Hall’s “criminal record,” con-

sisting entirely of the two dismissed juvenile charges, but

such record likely was not admissible and “had no utility

25 The district court's findings concerning Saunders’

credibility cannot be avoided on the basis of Mickens’ dubious

argument that the courts below erroneously applied a

“subjective” test in finding no “adverse effect,” or relied on

counsel’s “motivation” rather than an “objective” analysis. In

Burger, this Court upheld the district court’s findings crediting

trial counsel’s testimony as the basis for its conclusion that no

“actual conflict” had been established. 483 U.S. at 785. Burger

teaches that it would be “most inappropriate, and factually

unsupportable” to speculate that Saunders’ representation of

Mickens was “tainted by . . . improper motivation” in the face of

the district court’s “heavily fact-based rulings.” Id. Moreover,

the district court’s findings concerning the plausibility of

alternative strategies are based entirely on an objective

assessment of the record.

as an alternative strategy.” (JA 295). Moreover, the district

court and the en banc Fourth Circuit both correctly rejected

finding a plausible or viable strategy in using the informa-

tion of Hall’s assault charge to “impeach” Hall’s mother’s

1996 victim impact statement because it was “fraught with

risk” (JA 297), and “choosing not to vilify the mother of the

victim cannot be the mark of incompetent counsel by any

measure.” (JA 375).26

Saunders’ duty to maintain Hall’s confidences never

prevented Keeling, who was the attorney responsible for

sertencing, from considering negative information about

Hall. The district court found that Keeling had the same

informatior. from public sources that Saunders learned while

representing Hall, and Keeling believed it insufficient to

support any defense.?” (JA 296).

26 Mickens’ “attack-the-victim’s-mother” strategy can be

hypothesized only in hindsight. The Virginia Supreme Court

did not approve the admission of “victim impact” evidence in a

Virginia trial until November 1994, well after Mickens’ original

trial. See Weeks v. Commonwealth, 450 S.E.2d 379, 389 (Va. 1994),

cert. denied, 516 U.S. 829 (1995). Of course, the Commonwealth

did not present any “victim impact” evidence during the first

sentencing in 1993, and only the written statement required by

the intervening change in state law was presented in the final

judge sentencing in 1996. Juvenile Court Judge Foster cannot be

charged with notice of a “particular conflict” based on her

failure to have predicted that the Virginia General Assembly

would enact legislation allowing the limited use of victim

impact statements. See 1993 Va. Acts of the Gen. Assembly, c.

978.

27 The newspaper article Mickens has relied upon recited

that Hall had been charged with assaulting his mother; the

police had “picked him up” for carrying a concealed weapon; he

had been kicked out of his mother’s house; and he had a social

worker. (JA 397-398).

Even assuming as an abstract matter that “attacking

the victim” in a murder prosecution ever can be a plaus-

ible and viable sentencing defense, it was inconsistent

with Mickens’ own testimony denying fault and asserting

regret at the death of Hall. (JA 295). Such a strategy

would turn on persuading the sentencing jury that a life

sentence was more appropriate because Mickens chose as

his victim a teenage boy who might have had some

difficulties in his relationship with his mother and who

had been charged with carrying a concealed bread knife

in his car. The same jury would know that Mickens had

committed several forcible sodomies, including one in

prison, and, beyond a reasonable doubt, had brutally

attacked and stabbed Hall 143 times. It is virtually

unthinkable that any competent attorney would have con-

tinued to “attack the victim” in the courtroom, and the

“propensity of that approach to backfire” made it an

implausible sentencing strategy here. (JA 295).

3. Unrelated “Deficient” Investigation

In the district court, Mickens raised several allega-

tions concerning the adequacy of Saunders’ investiga-

tions into matters that had no connection to his previous

representation of Hall. For example, Mickens alleged that

Saunders failed to investigate information he had

obtained from police reports suggesting the existence of

an “alternative perpetrator.” The district court correctly

found that Saunders’ failure to investigate these leads

was not “inherently in conflict with” the previous

representation of Hall or otherwise related to the alleged

conflict (JA 299-303), and the Fourth Circuit agreed. (JA

376-377).

Sullivan obviously requires that the alleged adverse

effects in fact be the effects of the alleged conflict. In

rejecting Mickens’ “inadequate investigation” claims as

unrelated to any conflicting interest, the Fourth Circuit

simply followed Sullivan’s command that a Sixth Amend-

ment violation requires showing that an actual conflict

adversely affected the representation. After all, the whole

point of Sullivan is to distinguish the category of “actual

conflicts” that violates the Sixth Amendment from the

mass of potential and abstract conflicts which do not.

Mickens’ case demonstrates the wisdom of the Sul-

livan rule. After a full hearing, the courts below agreed

that Saunders’ potential conflict of interest had no

adverse effect on Mickens’ defense and that Mickens had

received a fair trial. (JA 309-310, 379). The absence of any

impairment of the defense only underscores the necessity

for Sullivan’s standard in collateral challenges to pre-

sumptively valid state court judgments.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed and the stay of execution vacated.

RANDOLPH A. BEALES

Attorney General of Virginia

Rosert Q. Harris

Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

(804) 786-0142 (fax)

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