Amicus Curiae Brief — Mickens v. Taylor

AUG | 200|

No. 00-9285 |

LE

IN THE

Supreme Court of the United States

WALTER MICKENS, JR.,

Petitioner,

vs

JOHN B. TAYLOR,

Warden. Sussex | State Prison,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

ee eee

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

EEE

KENT S. SCHEIDEGGER

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cylf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

IBEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding that a defendant

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 potential conflict of interest about

which it reasonably should have known?

2. Would an affirmative answer to Question | be a new rule

within the meaning of Teague v. Lane?

@)

TABLE OF CONTENTS

Questions presented .. 0.00... cece eee e eee eens i

TRG ccc ccc ccccccscccccccccesccecs iv

Interest of amicus Curiae ... 1.66.66 ccs l

Summary of facts and case... . 2... eee eee 2

Summary of argument ...... 1... eee eens 4

J er 5

I

Petitioner has received a full hearing on his conflict claim _

and failed to show any actual conflict ............... 5

A. The role of prevailing norms ................- 5

B. No actual conflict .. 1.1... ccc cece cere eeees 7

II

Teague applies to this case and is fairly included in the

question presented ..... 6.6... cece e eens 11

Ill

Pertinent Supreme Court precedent squarely states an adverse

effect requirement ..... 6... 6.6 ee eee ees 14

IV

When the holding of a Supreme Court precedent, by its

terms, is contrary to a proposed rule, the latter rule is per se

“new,” notwithstanding the nuances of other cases .... 23

iv

TABLE OF AUTHORITIES

Cases

Bonin v. Calderon, 59 F. 74 815 (CA9 1995) .......... 22

Bonin v. California, 494 U. S. 1039, 108 L. Ed. 2d 641,

Ss Gy SEED 0s ch ccutsocbabeunsscécudna 22

Breard v. Greene, 523 U. S. 371, 140 L. Ed. 2d 529,

Ss SEPONUEED Sc deeecnndesdsustscadevens 12

Brien v. United States, 695 F.2d 10 (CAI 1982) ....... 22

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

Pe SE ous bb bonuacdebebnscevnnsecs 25

Burden v. Zant, 498 U. S. 433, 112 L. Ed. 2d 962,

Se Ob EE a cccabsccbassvecapescnccees 22

Burden v. Zant, 510 U. S. 132, 126 L. Ed. 2d 611,

Ses GED code ncsvécceseciccicndes 22, 23

Burger v. Kemp, 483 U. S. 776, 97 L. Ed. 2d 638,

Se Gh Gh DE Sivccavcccoesseséces 15, 21, 22

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

Se Gd SEE 5 6h dcdccusesavecdeccens 23, 25

Cage v. Louisiana, 498 U. S. 39, 112 L. Ed. 2d 339,

FES SED b sc ooceucen denendchecushoseoumes 19

Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,

as Gi SE wa cuseadoscanssnecdéureaec 24

California v. Ramos, 463 U. S. 992, 77 L. Ed. 2d 1171,

FeeP eG, SE a WS eect vdseccsccdcdecedse 24

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

1148S. Ct. 948 (1994) ... 0.0... 6.68, 11, 12, 13, 14,22

Cuyler v. Sullivan, 446 U. S. 335, 64 L. Ed. 2d 333,

SGD DUNE « bacasobeenccendsonte 15, 16, 18

Desist v. United States, 394 U. S. 244, 22 L. Ed. 2d 248,

tt Pn a; clicdGccbe Vavasncceseteus 23

Espinosa v. Florida, 505 U. S. 1079, 120 L. Ed. 2d 854,

Pt Pn pccecbsostenshetencnteseces 18

Hohn v. United States, 524 U. S. 236, 141 L. Ed. 2d 242,

SE Gh, SEE ch ocucdeceseéeseeeocesnpes 18

Lambrix v. Singletary, 520 U. S. 518, 137 L. Ed. 2d 771,

Se EE vc ccccaedéesceeeodness 6, 13, 18

Mickens v. Commonwealth, 247 Va. 395,

Ss ED 66 db0 Keccocccccccccceses 2,3

Mickens v. Commonwealth, 249 Va. 423,

Se EE 6 nan dddvucnebeococccocccececs 3

Mickens v. Commonwealth, 252 Va. 315,

Se SEED 4 con ncccesedececncesseoass 3

Mickens v. Greene, 74 F. Supp. 2d 586

GE EP WO, FERS cc ccccesecccccccecccccces 3, 4, 10

Mickens v. Taylor, 227 F. 3d 203 (CA4 2000) ....... 4,24

Mickens v. Taylor, 240 F. 3d 348 (CA4 2001) ..... 3, 4,13

Mickens v. Taylor, 532 U.S. __, 149 L. Ed. 2d 467,

BS Ge, BER GSE c cc ccc cvcccccccccccccccces 11

Mickens v. Virginia, 513 U. S. 922, 130 L. Ed. 2d 271,

BESS, Ge FEF ITD ove ccccccccccccccccccccccess 3

Mickens v. Virginia, 520 U. S. 1269, 138 L. Ed. 2d 202,

jy, See ll rrr eee 14

Missouri v. Jenkins, 495 U. S. 33, 109 L. Ed. 2d 31,

110 S. Ct. 1651 (1990) ... 2... eee eee eens 14

Nix v. Whiteside, 475 U. S. 157, 89 L. Ed. 2d 123,

REE HIRI Ss? 6,7

O’Dell v. Netherland, 521 U. S. 151, 138 L. Ed. 2d 351,

SPUR: HD wckiiceckccctucwiadsscdcns 24

Penry v. Johnson, 532 U.S. _, 150 L. Ed. 24 9,

Ge HIN nc cucdeuscccaccsconsecas 12

People v. Bonin, 47 Cal. 3d 808, 254 Cal. Rptr. 298,

Sn IED civiccccacadsenssvecuiacais 22

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U. S. 477, 104 L. Ed. 2d 526,

es Gh ED 0 dddbcuséudéeseuineedeenas 24

Schenck v. Pro-Choice Network, 519 U. S. 357,

137 L. Ed. 2d 1, 117 S. Ct. 855 (1997) ............. 11

Simmons v. South Carolina, 512 U. S. 154,

129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994) .......... 24

Smith v. Robbins, 528 U. S. 259, 145 L. Ed. 2d 756,

a Gk, PE cnécevedoncenadceedesiconss 21

Strickland v. Washington, 466 U. S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) ........ 19, 20

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

Se ae Gk SED cccccstccoccesess 11, 12, 18, 19

Tyler v. Cain, 533 U.S. __, 150 L. Ed. 2d 632,

Bae GB Ge, SPD ce ncecesevaceccesscccccess 19

Williams v. Taylor, 529 U. S. 362, 146 L. Ed. 2d 389,

ee as Ge, DEE oc ccnveconvcsesouess 12, 22, 25

Wood v. Georgia, 450 U. S. 261, 67 L. Ed. 2d 220,

Fae Be GR, Bee Ge ce ewccscccccdcceene 4, 16, 17, 18

Vii

United States Statute

Ps chu tvedcedeuswesésekdeedsseee 12

Rule of Court

PONE vnncedcudcceesecceceses 11

Miscellaneous

American Bar Association, Model Rules of Professional

IGE. cc cvackdeonsesceuee 8, 9, 10, 17, 21

American Law Institute, Restatement (Third) of the Law

Governing Lawyers (2000) .............. 9, 10, 14, 15

Coyne, Inflicting Payne on Oklahoma: The Use of Victim

Impact Evidence During the Sentencing Phase of Capital

Cases, 45 Okla. L. Rev. 589 (1992) ................ 14

Lay, The Writ of Habeas Corpus: A Complex Procedure for

a Simple Process, 77 Minn. L. Rev. 1015 (1993) ..... 11

Liebman & Ryan, “Some Effectual Power”: The Quantity

and Quality of Decisionmaking Required of the Federal

Courts, 98 Colum. L. Rev. 696 (1998) ............-. 12

D. Rhode & D. Luban, Legal Ethics (2d ed. 1995) ....... 9

Scheidegger, Habeas Corpus, Relitigation, and the

Legislative Power, 98 Colum. L. Rev. 888 (1998) ..... 12

Wallace, The Ethical Considerations of Defense Strategies

When Confronted With Victim-impact Statement—Give

Us Dirty Laundry?!, 13 Thomas M. Cooley L. Rev. 991

Si idileitenetuaiegd egépasdasdacessxeseees 15

IN THE

Supreme Court of the United States

WALTER MICKENS, JR.,

Petitioner,

vs.

JOHN B. TAYLOR,

Warden, Sussex I State Prison,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

This Court’s jurisprudence on attorney conflicts has

established a compromise position, where a defendant who

made no objection at trial is relieved of the normal burden of

showing prejudice but must meet the lesser burden of showing

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

adverse effect. Petitioner’s proposed rule in this case would not

only change that rule but do so retroactively on habeas corpus,

thereby overturning final judgments decided in accord with

current law. To overturn such judgments for defense attorney

malfeasance which had no effect on the outcome would be

contrary to the interests of victims and society CJLF was

formed to protect.

SUMMARY OF FACTS AND CASE

Nine years ago, Walter Mickens murdered Timothy Hall,

who was then 17, by stabbing him to death. There were “143

separate ‘sharp force injuries’ to the victim’s body.” Mickens

v. Commonwealth, 247 Va. 395, 399, 442 S. E. 2d 678, 682

(1994). Hall was last seen alive on March 28, 1992, and his

body was discovered March 30, 1992. /d., at 398-399, 442

S. E. 2d, at 681-682. Although he denied committing the crime

at trial, J. A. 45, Mickens’ identity as the killer was established

by, among other evidence, his knowledge the victim had been

stabbed, his express statement to the police he was guilty, his

possession and sale of the victim’s tennis shoes, and DNA

analysis of semen from the scene. The DNA evidence, while

not conclusive by itself, was powerfully corroborating in light

of the other evidence. See 247 Va., at 400-401, 442 S. E. 2d, at

682.

Shortly before his death, Hall was the subject of juvenile

court petitions as a result of a scuffle with his mother and his

possession of a bread knife wrapped in newspaper. J. A. 391-

394. Attorney Bryan Saunders was appointed to represent him.

J. A. 396. On April 3, 1992, the juvenile case was dismissed

due to Hal!|’s death. J. A. 390.

On April 1, 1992, two days after discovery of the body, the

local newspaper printed a story about Timothy Hall. J. A. 397-

398 (copy of article); J. A. 168 (date). The article discusses the

rumors that Hall was a male prostitute, the fact he lived at a

friend’s house rather than with his mother, the incident with his

mother and the resulting charges, and the concealed weapon

allegation, erroneously referring to the latter as involving a gun

rather than a knife. J. A. 397-398.

Attorney Saunders was appointed to represent Mickens,

along with co-counsel Warren Keeling. “Saunders never told

Mickens or Keeling that he had represented Hall .. ..” Mickens

v. Taylor, 240 F. 3d 348, 354 (CA4 2001) (en banc). Keeling

was primarily responsible for investigating the sentencing-

phase issues. J. A. 172-173. He was aware of the newspaper

article. J. A. 168.

In the penalty phase, the prosecution introduced Mickens’

extensive criminal record, including two convictions of sodomy

and four other felonies. Two of Mickens’ surviving victims

testified. Charles Siron testified that Mickens forcibly sodo-

mized him in the city jail while holding a razor blade to his

throat. Elementary school teacher Ruby Bunn testified that

Mickens robbed her in her classroom by threatening a small

child with a knife. 247 Va., at 410, 442 S. E. 2d, at 688.

Mickens was setitenced to death, and the Virginia Supreme

Court initially affirmed. /d., at 412, 442 S. E. 2d, at 689. This

Court vacated and remanded “for further consideration in light

of Simmons v. South Carolina, 512 U.S. 154 (1994).” Mickens

v. Virginia, 513 U.S. 922 (1994). The Virginia Supreme Court

remanded for a second penalty trial. Mickens v. Common-

wealth, 249 Va. 423, 457 S. E. 2d 9 (1995). The second jury

reached the same conclusion, and its verdict was affirmed.

Mickens v. Commonwealth, 252 Va. 315, 478 S. E. 2d 302

(1996). Mickens filed a state habeas petition, prepared by new

counsel. J. A. 103-125, 133. The Virginia Supreme Court

denied it. J. A. 126.

On federal habeas corpus, Mickens raised the conflict issue

for the first time. The District Court found he had cause for the

default and that “the prejudice inquiry incorporates the test for

the underlying claim.” Mickens v. Greene, 74 F. Supp. 2d 586,

602 (DC ED Va. 1999).

The District Court held an evidentiary hearing, including

testimony by both defense counsel. J. A. 155-253. The court

found “that Saunders did not learn any confidential information

from Hall that was relevant to Mickens’ defense either on the

merits or at sentencing.” 74 F. Supp. 2d, at 606 (emphasis in

original), J. A. 291. Further, “the Court credits Saunders’

testimony that he did not refrain from taking any actions for

Mickens because of his earlier representation of Hall.” /d., at

612, J. A. 303. The District Court denied the conflict claim,

finding neither actual conflict, adverse effect, nor prejudice to

excuse the default. /d., at 615, J. A. 309.

On Mickens’ related ineffective assistance of counsel claim,

the District Court held it was both defaulted and meritless. “In

light of the facts facing counsel . . . , counsel! reasonably chose

not to pursue a consent defense. Furthermore, the lack of

mitigating evidence is attributable to the absence of such

evidence rather than the failings of counsel.” /d., at 598, n. 6,

J. A. 275.

A divided panel of the Court of Appeals reversed, finding

that under Wood v. Georgia, 450 U.S. 261 (1981), no showing

of an adverse effect is required in these circumstances. Mickens

v. Taylor, 227 F. 3d 203, 210-211 (CA4 2000), J. A. 327-329.

The en banc court disagreed, 240 F. 3d, at 360, J. A. 371-372,

and reinstated the District Court decision. This Court granted

Mickens’ petition for certiorari on April 16, 2001.

SUMMARY OF ARGUMENT

Nix v. Whiteside establishes that the boundaries of the Sixth

Amendment right to unconflicted counsel are not coextensive

with professional norms. Instead, those norms mark an outer

limit. A set of facts that does not constitute a conflict under

professional norms does not violate the Sixth Amendment, but

the converse is not necessarily true.

Duty to former clients is much more limited than duty to

present clients under those norms. The continuing duty is to

preserve confidential information, which is defined to exclude

information that has since become public. There was no

conflict in this case.

Teague v. Lane applies to this case and is fairly included in

the question presented. Caspari v. Bohlen holds that a certio-

rari petitioner preserves the Teague issue by arguing it in the

body of the certiorari petition. Argument in the body of the

brief in opposition is therefore sufficient for the certiorari

respondent.

_ Surveying the legal landscape, Cuyler v. Sullivan, Strick-

land v. Washington, Burger v. Kemp, and Burden v. Zant

establish that an adverse effect must be shown by the habeas

petitioner in the circumstances of the present case. Wood v.

Georgia was a decision on an unargued, unbriefed point, which

merely omitted discussion of an element not separately disput-

able on the facts of the case.

Where, as here, pertinent Supreme Court precedents state a

rule which, on its face, applies to the present case, an argument

that nuances of other cases create an unstated exception is per

se a proposal for a “new rule” within the meaning of Teague.

ARGUMENT

I. Petitioner has received a full hearing on his conflict

claim and failed to show any actual conflict.

A. The Role of Prevailing Norms.

The first question to be addressed is what role prevailing

professional norms play in a Sixth Amendment conflict

analysis. The amici who style themselves the “legal ethicists”

contend, in essence, that every breach of prevailing professional

norms should be deemed a violation of the Sixth Amendment

and result, without more, in successful collateral attack on final

judgment in a criminal case. See Brief for Legal Ethicists et al.

as Amici Curiae 17 (cited below as “Legal Ethicists’ Brief”).

However, this Court has already duly considered and unequivo-

cally rejected this notion.

“Under the Strickland standard, breach of an ethical

standard does not necessarily make out a denial of the Sixth

Amendment guarantee of assistance of counsel. When

examining attorney conduct, a court must be careful not to

narrow the wide range of conduct acceptable under the

Sixth Amendment so restrictively as to constitutionalize

particular standards of professional conduct and thereby

intrude into the state’s proper authority to define and apply

the standards of professional conduct applicable to those it

admits to practice in its courts.” Nix v. Whiteside, 475 U.S.

157, 166 (1986).

Not only is the position of the “legal ethicists” not dictated by

precedent in this habeas case, see Lambrix v. Singletary, 520

U. S. 518, 529 (1997), the exact opposite is dictated by prece-

dent.

The rules governing whether conduct is ethical and the rules

governing when final judgments will be set aside differ for

good reason. The rules of professional ethics operate prospec-

tively. Their goal is to tell lawyers in advance what they may

and may not do in order to prevent or at least minimize the

possibility of future harm. This is a fundamentally different

purpose from that of a remedial system designed to correct or

compensate for harms that have already occurred.

By analogy, the prohibition against driving while intoxi-

cated is a preventative rule. It prohibits an action which creates

a danger of harm even though it is not inherently harmful. A

person who violates that prohibition may be punished, even

though he makes it home without hurting anyone. The remedial

system comes into action if and only if the drunk driver actually

causes harm. Then a private person will have an action for

damages against the driver and the owner of the car, and in

most cases the car’s insurer is the one who actually pays.

Actual harm creates both the private right of action, as opposed

to a public prosecution, and widens the net to persons other

than the malefactor.

Amici supporting petitioner protest the lack of “legal

consequence” if a conflict causing no harm does not result in

the setting aside of this final judgment. See Legal Ethicists’

Brief 17. Not so. Attorneys who breach the rules without

causing harm, like drunk drivers who do not cause accidents,

are subject to public prosecution, i.e., bar discipline. For a

private party, the client, to obtain redress from the state, which

is not the malefactor, actual harm should be shown.

The Court in Nix v. Whiteside nonetheless went on to

examine professional norms, employing them as marking the

outer boundary of possible Sixth Amendment requirements.

“Since there has been no breach of any recognized professional

duty, it follows that there can be no deprivation of the right to

assistance of counsel under the Strickland standard.” 475 U.S.,

at 175. If the present case involves no conflict under prevailing

norms, then there is no conflict violating the Sixth Amendment,

although the converse is not necessarily true.

B. No Actual Conflict.

Amici supporting petitioner insist that trial counsel had an

actual conflict of interest as a result of his prior, brief represen-

tation of the murder victim in an unrelated matter, independ-

ently of whether any confidential information is involved. See

Legal Ethicists’ Brief 13. This argument glosses over the

distinction between current and former clients. Amici’ s premise

is that a lawyer has a continuing duty of loyalty to former

clients not to bring out information damaging to their reputa-

tion, even if that information is unrelated to the prior represen-

tation and independent of any confidential communication.

This premise is false.

The American Bar Association Model Rules of Professional

Conduct (2001 ed.) (cited below as “Model Rules”) have

separate rules for present and former clients. The differences

are significant:

“Rule 1.7 CONFLICT OF INTEREST: GENERAL RULE

“(a) A lawyer shall not represent a client if the repre-

sentation of that client will be directly adverse to another

client, unless:

“(1) the lawyer reasonably believes the representa-

tion will not adversely affect the relationship with the

other client; and

“(2) each client consents after consultation.

“(b) A lawyer shall not represent a client if the repre-

sentation of that client may be materially limited by the

lawyer’s responsibilities to another client or to a third

person, or by the lawyer’s own interest, unless:

(1) the lawyer reasonably believes the representa-

tion will not be adversely affected; and

‘“(2) the client consents after consultation. When

representation of multiple clients in a single matter is

undertaken, the consultation shall include explanation

of the implications of the common representation and

the advantages and risks involved.” /d., Rule 1.7, at 24-

25 (emphasis added, footnote omitted).

“RULE 1.9 CONFLICT OF INTEREST: FORMER

CLIENT

“(a) A lawyer who has formerly represented a client in

a matter shall not thereafter represent another person in the

same or a substantially related matter in which that

person’s interests are materially adverse to the interests of

the former client unless the former client consents after

consultation.

[(b) omitted]

ae

“(c) A lawyer who has formerly represented a client in

a matter or whose present or former firm has formerly

represented a client in a matter shall not thereafter:

“(1) use information relating to the representation

to the disadvantage of the former client except as Rule

1.6 or Rule 3.3 would permit or require with respect to

a client, or when the information has become generally

known, or

“(2) reveal information relating to the representa-

tion except as Rule 1.6 or Rule 3.3 would permit or

require with respect to a client.” /d., Rule 1.9, at 32-33

(emphasis added, footnote omitted).

Rule 1.7(a) establishes a general duty of nonadversity for

present clients. In sharp contrast, Rule 1.9 limits the duty

regarding former clients to the “same or substantially related

maiter.” The Restatement is in accord. See 2 American Law

Institute, Restatement (Third) of the Law Governing Lawyers

§ 132, pp. 376-377 (2000). The forcible sodomy and brutal

murder of Timothy Hall by Walter Mickens is not “substan-

tially related” to the allegations that Hall previously shoved his

mother and wrapped a bread knife in newspaper. Trial counsel

Saunders was therefore partially correct when he stated that his

duty to Hall ended with Hall’s death and the dismissal of the

charges against him.

As amicus Deborah Rhode puts it,

“In general, this personal loyalty to current clients ends

when the representation ends. If lawyers were unable to

accept new matters adverse to past as well as current

clients, the rules would be unworkable. ... Thus, it is often

said that the rules governing simultaneous representation of

conflicting interests are based on loyalty and confidential-

ity, while the rules governing successive representation are

based on confidentiality alone.” D. Rhode & D. Luban,

Legal Ethics 518 (2d ed. 1995).

10

The only potential conflict lay in the continuing duty to

preserve client confidences under Rule 1.9(c). This is where

the evidentiary hearing in the habeas court comes in.

Like other ineffective assistance issues, conflict issues

normally cannot be decided on the appellate record. That is

why they are typically determined on collateral review, with an

evidentiary hearing. Such a hearing was held in this case. The

case is not to be decided on a cold appellate record, drained of

content by the very alleged conflict at issue. Cf. Brief for

Petitioner 45. This case is to be decided after a full evidentiary

hearing with the opportunity to summon and present witnesses.

Trial counsel testified and the District Court found that no

pertinent confidential information is involved in this case. See

Mickens v. Greene, 74 F. Supp. 2d 586, 606 (DC ED Va. 1999),

J. A. 290-291. The requirement of confidentiality does not

preclude the use of “information relating to a former client that

is in the ‘public domain... .’ ” Model Rules, supra, at 35;

accord Restatement, supra, § 132(2), at 377 (“unless that

information has become generally known”). The information

adverse to Hall’s reputation had been printed in the local

newspaper, see supra, at 2, and it is difficult to get more

“public” than that. Petitioner insists that counsel was ethically

forbidden to investigate based on formerly confidential leads

when the essence of the information had since been printed in

the newspaper. Brief for Petitioner 44. Under prevailing norms

there is no such ethical constraint and hence, under Nix v.

Whiteside, supra, no Sixth Amendment conflict.

Undoubtedly, trial counsel in this case demonstrated an

ethical tin ear. The proper course was to disclose the facts to

both defendant and the court, make a record that no actual

conflict existed, and permit defendant to request different

counsel if he had any doubts of Saunders’ loyalty. See 74

F. Supp. 2d, at 601. Yet even a tone deaf musician can strike

a correct chord occasionally. Saunders blundered his way to

the correct conclusion that no actual conflict existed in this

case.

11

Il. Teague applies to this case and is fairly included

in the question presented.

The question presented in this case is, “Did the Court of

Appeals err in holding that a defendant 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 potential conflict of interest about which it reasonably

should have known?” Mickens v. Taylor, 532 U.S. _, 149

L. Ed. 2d 467, 121 S. Ct. 1651 (2001). The issues to be

considered by the Court are therefore limited to this question

and those “fairly included therein.” See Supreme Court Rule

14.1(a).

The nonretroactivity principle of Teague v. Lane, 489 U. S.

288 (1989) is “fairly included therein.” “A threshold question

in every habeas case . . . is whether the court is obligated to

apply the Teague rule to the defendant’s claim.” Caspari v.

Bohlen, 510 U. S. 383, 389 (1994) (emphasis added). Arguing

nonretroactivity in the body of the argument at the petition

stage is sufficient to preserve the issue even for the certiorari

petitioner. /d., at 389-390. A fortiori, it is sufficient for the

certiorari respondent, see Brief in Opposition 24-25, 28-29

(retroactivity argument), who has broader latitude to defend

rather than attack the judgment below. See Schenck v. Pro-

Choice Network, 519 U. S. 357, 384, n. 12 (1997).

For the reasons stated in part III, infra, and in respondent's

brief, this Court’s precedents make the question presented

straightforward even on a de novo basis. (That is, the answer is

“no.”) However, the answer is even clearer under Teague,

because the Court need only ask what the rules were in 1997,

not the always-debatable question of whether they should be

changed. The Teague rule has been criticized as complicating

the habeas court’s task, see, e.g., Lay, The Writ of Habeas

Corpus: A Complex Procedure for a Simple Process, 77

Minn. L. Rev. 1015, 1042 (1993), but the complications come

primarily from attempts to evade the rule. The principle simply

is that any pushing of the legal envelope must be done on direct

12

review. So, too, must resolution of conflicts where multiple,

well-considered decisions are divided. See Caspari v. Bohlen,

510 U.S., at 395. Habeas is strictly for enforcement of existing

rules. The Teague issue is clear whenever the underlying

question is close, as well as when the underlying question is

clear in the state’s favor. See Williams v. Taylor, 529 U. S.

362, 412 (2000) (noting equivalence of Teague “old rule” with

“clearly established” under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”)). Both Teague and the

AEDPA’s similar rule of 28 U. S. C. §2254(d) will usually

make it unnecessary to decide the underlying question. As soon

as the habeas court determines that the proposed rule would be

“new” or is not “clearly established,” or that a state court's

application of an old rule is “reasonable,” its task is finished.

See Teague, 489 U. S., at 316; Penry v. Johnson, 532 U.S. _.

150 L. Ed. 2d 9, 23-24, 121 S. Ct. 1910, 1919 (2001) (“We

need not and do not decide .. .”). Properly applied, Teague and

§ 2254(d) streamline rather than complicate the habeas process.

See Williams, supra, at 404 (congressional purpose “to curb

delays”).

Despite the considerable overlap between Teague and

§ 2254(d), Teague survives as an independent limitation on the

habeas remedy. Some early post-AEDPA writings of the

opponents of habeas reform postulated that Teague had been

supplanted. See, e.g. Liebman & Ryan, “Some Effectual

Power”: The Quantity and Quality of Decisionmaking Re-

quired of the Federal Courts, 98 Colum. L. Rev. 696, 866

(1998). That was wishful thinking on their part. See Scheideg-

ger, Habeas Corpus, Relitigation, and the Legislative Power, 98

Colum. L. Rev. 888, 959, n. 500 (1998).

In particular, the Teague rule applies and has independent

force where there has been no state court decision on the merits

of the claim, and hence § 2254(d) is inapplicable. Most such

claims are either unexhausted or procedurally defaulted, but in

a few cases they may be decided on Teague grounds. Teague

was applied in the post-AEDPA case of Breard v. Greene, 523

13

U.S. 371, 376-377 (1998) (per curiam), to reject a claim when

petitioner contended that the novelty of the claim excused his

default. Occasionally it may be more efficient to dispose of a

defaulted claim on Teague grounds when the default issue

presents difficult questions while the Teague issue is straight-

forward. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

Teague can also preclude a defaulted claim where the “cause

and prejudice” exception to default has been met.

In the present case, the Court of Appeals found the “cause”

element established. Mickens v. Taylor, 240 F. 3d 348, 356

(CA4 2001) (en banc). The court then held that if petitioner

could qualify for the Sixth Amendment “presumption of

prejudice” by establishing both actual conflict and adverse

effect, that presumption would carry over to the prejudice prong

of the procedural default analysis. /d., at 357. Since that issue

is not fairly included in the question presented, amicus will not

address it. It is sufficiently knotty to bring this case within the

~ rationale of Lambrix, invert the usual order of decision, and

dispose of this Teague-barred claim on Teague grounds rather

than procedural default.

“In determining whether a state prisoner is entitled to

habeas relief, a federal court should apply Teague by

proceeding in three steps. First, the court must ascertain the

date on which the defendant’s conviction and sentence

became final for Teague purposes. Second, the court must

‘[s]urve[y] the legal landscape as it then existed,’ [citation]

and ‘determine whether a state court considering [the

defendant’s] claim at the time his conviction became final

would have felt compelled by existing precedent to con-

clude that the rule [he] seeks was required by the Constitu-

tion,” [citation]. Finally, even if the court determines that

the defendant seeks the benefit of a new rule, the court must

decide whether that rule falls within one of the two narrow

exceptions to the nonretroactivity principle.” Bohlen, 510

U. S., at 390 (alterations in Bohlen).

14

The date of finality is October 14, 1997. See Mickens v.

Virginia, 520 U. S. 1269 (June 9, 1997) (denying certiorari on

direct appeal), reh’g denied, 522 U. S. 928 (Oct. 14, 1997);

Bohlen, supra, at 390 (“final” when certiorari “finally denied”);

Missouri v. Jenkins, 495 U. S. 33, 46 (1990) (judgment not

final while rehearing petition pending, in a different context).

In part III, infra, we will briefly survey the legal landscape,

deferring to respondent’s brief for a more thorough discussion

of the merits. In part IV, we propose a bright-line rule for

resolving the Teague question in cases such as this one. The

narrow exceptions are obviously inapplicable.’

III. Pertinent Supreme Court precedent squarely states

an adverse effect requirement.

From the ethical standards quoted and discussed in part I,

supra, it is evident that concurrent representation of multiple

defendants in the same case presents a far greater danger of

conflict of interest than prior representation of the victim of a

crime in an entirely unrelated matter. As the commentary to the

Restatement notes, “joint representation in criminal cases often

has a material and adverse effect on the representation of each

defendant ....” 2 American Law Institute, Restatement (Third)

of the Law Governing Lawyers, § 129, Comment c, p. 351

(2000) (emphasis added). In contrast, a prominent capital

defense advocate notes that only rarely is it even possible to

impugn the character of the victim. See Coyne, Inflicting

Payne on Oklahoma: The Use of Victim Impact Evidence

During the Sentencing Phase of Capital Cases, 45 Okla. L. Rev.

589, 614 (1992). Even where it is possible, such an attack will

2. Petitioner's proposed rule would not legalize murder and forcible

sodomy. A rule overturning convictions for a defect that had no effect

whatever on the outcome does not implicate the fundamental fairness

and accuracy of the criminal proceeding, at least not in a positive

direction. Cf. Bohlen, supra, at 396.

15

typically be strategically unwise due to its potential to alienate

the jury. See Wallace, The Ethical Considerations of Defense

Strategies When Confronted With Victim-Impact State-

ment—Give Us Dirty Laundry?!, 13 Thomas M. Cooley

L. Rev. 991, 1012 (1996).

Sequential representation of the victim and perpetrator in

unrelated matters, therefore, would only rarely have a material

and adverse effect on representation. Where the lawyers have

no relevant, confidential, nonpublic information from the

former client, as in this case, there is no conflict at all. Where

the lawyers do have such information, the only effect is that

ihey cannot use it, see Restatement, supra, § 132, Comment /,

Illustration 6, at 383, which is the same as having a lawyer who

does not know the information.

Certainly it is objectively reasonable to believe that there is

no greater burden on the trial court and no lesser showing

required of the defendant in the sequential representation

situation than there is in the concurrent representation situation.

A weak argument could be made for such a differential based

on the fact that common defense sometimes has a benefit, see

Burger v. Kemp, 483 U. S. 776, 783-784 (1987), but no such

subclassification of types of conflict is even intimated by, much

less “dictated” by, this Court’s precedents. Applying the

concurrent representation precedents at face value to the

sequential representation situation cannot be considered

objectively unreasonable.

Cuyler v. Sullivan, 446 U. S. 335 (1980) held in part IV A,

“Unless the trial court knows or reasonably should know that a

particular conflict exists, the court need not initiate an inquiry.”

Id.,at347. Concurrent representation alone is not enough, and

sequential representation is even less. Specifically, if the

possibility inherent in every criminal case of inconsistent

defenses of co-defendants is not enough to trigger the duty of

inquiry, then the much lesser possibility of putting the dead

victim on trial in a capital case cannot be. Sullivan then held in

part IV B that “a defendant who raised no objection at trial must

16

demonstrate that an actual conflict of interest adversely affected

his lawyer’s performance.” /d., at 348. The condition stated

for this requirement is lack of objection. The only reference to

trial court inquiry in part IV B comes in a footnote accompany-

ing this statement. The Court cited seven Court of Appeals

cases as consistent with its holding, followed by a “cf.” cite to

a case holding “burden of proof shifts when trial court fails to

inquire into possibility of conflict.” The “cf.” signal indicates

that this case is at variance with the Court’s holding. Sullivan

does not hold that finding a trial court duty to inquire obviates

the adverse effect requirement. Its rule is stated in broader

terms, and subsequent cases confirm that breadth.

Wood v. Georgia, 450 U. S. 261 (1981) is the mainstay of

the argument that the law has changed since Sullivan, or,

alternatively, that Su/livan contains an unstated exception to its

plainly stated rule. See Brief for Petitioner 29. Wood is an

unlikely candidate to carry such a burden.

In Wood, the defendants were low-level employees of a

pornographic theater and affiliated bookstore. See 450 U. S.,

at 263-264, and n. 3. They were fined thousands of dollars. /d.;

at 263. The employer provided the defense counsel, and the

employees expected the employer to pay the fines, but it did

not. /d., at 264, 266-267. As they were unable to pay them-

selves, their probation was revoked, and they were ordered to

jail. Jd., at 264, and n. 2. The Court held that in this case,

unlike Sullivan, the potential of conflict was strong enough to

create a duty in the trial court to inquire. There was a powerful

and apparent danger that the employer’s interest in a test case

directly collided with the employees’ interest in leniency. /d.,

at 270. The Court vacated and remanded for an actual conflict

inquiry. /d., at 272-274. Actual conflict and adverse effect are

not separately discussed. The opinion implies that on the facts

Ly, ne lla a a

17

of the case the two inquiries are intertwined. See id., at 271-

272.’

Justice White objected to the manner in which the Court

reached the conflict issue, believing that the Court lacked

jurisdiction over it.

“The Court apparently believes that under Cuyler v.

Sullivan, 446 U. S. 335 (1980), the possibility of a conflict

of interest of constitutional dimensions should have

prompted further inquiry by the trial judge. But Cuyler v.

Sullivan did not purport to give this Court jurisdiction over

a claim otherwise beyond its reach. Cuyler held only that

if a trial court ‘reasonably should know that a particular

conflict exists,’ id., at 347, then a failure to initiate an

inquiry may constitute a Sixth Amendment violation. If

this is the case here, then petitioners remain free to seek

collateral relief in the lower courts.” /d., at 280 (dissenting

opinion).

In response to this objection, the Court dropped this

footnote:

“18. Justice White’s dissent states that we have gone

_ beyond the recent decision in Cuyler v. Sullivan, 446 U. S.

335 (1980). 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 reversal when the trial court

has failed to make an inquiry even though it ‘knows or

reasonably should know that a particular conflict exists.’

Id., at 347.” Id., at 272, n. 18 (emphasis in original).

In context, this footnote says nothing at all about the

requirement of an adverse effect for an overturning of a

criminal judgment. That prerequisite was not the basis of the

dissent’s objection, and hence there was no need to discuss it.

3. The existence of an adverse effect can be a factor in determining

whether there is a conflict, see, e.g., Model Rules, Rule 1.7(b)(1), at 25,

and hence the two inquires may be intertwined.

18

On the facts of Wood, the adverse effect was obvious once the

conflict was determined to be an actual one. There was no

doubt that the employees were given fines far in excess of their

ability to pay, and if the attorney had a conflict inhibiting his

freedom to argue for leniency there was nothing more to

establish.

If the Wood footnote were interpreted to say that Cuyler v.

Sullivan mandates overturning a criminal judgment and

ordering a new trial for failure to make an inquiry with nothing

more, that statement by Wood would be manifestly wrong.

Sullivan said nothing of the sort. Sullivan held that there was

no duty to inquire in that case. The inquiry discussion properly

ends with that holding. See 446 U. S.., at 348.

Some indication of whether a case changes the law may be

gleaned from the manner in which the Court decides it. In

Lambrix v. Singletary, 520 U. S. 518 (1997), there was an

argument that Espinosa v. Florida, 505 U. S. 1079 (1992) (per

curiam) could not be a new rule because it was decided

summarily. See Lambrix, at 538-539. The Court did not deny

that such an inference might generally have some weight, but

it was not applicable to Espinosa, because the identical issue

had been fully briefed and argued in another Florida case.‘ See

ibid. Wood is the mirror image of Espinosa. Although Wood

was a fully briefed and argued case, it was briefed and argued

on an entirely different point. On the point actually decided,

the Court was “without the benefit of briefing and argument.”

450 U. S., at 272. As precedent, Wood should be regarded with

the same skepticism as a summary decision. See Hohn v.

United States, 524 U. S. 236, 251 (1998) (noting reduced

4. Teague itself is a variation on the same theme. The adoption of Justice

Harlan’s view of retroactivity was fully briefed, indeed proposed, by

counsel for Teague, albeit in relation to a different issue. See Teague

v. Lane, 489 U. S. 288, 300 (1989); Brief for Petitioner in Teague v.

Lane, No. 87-5259, pp. 21-32.

ee

—_ —— ~<a as ~

19

precedential force when “the opinion was rendered without full

briefing or argument”’).

New rules are occasionally made in summary decisions.

Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam), disap-

proved in part in Estelle v. McGuire, 502 U. S. 62, 72, n. 4

(1991), is the most prominent example. See Tyler v. Cain, 533

U.S.__, 150 L. Ed. 2d 632, 642, 121 S. Ct. 2478, 2482 (2001).

It would be fair to say that new rules should not be made in

summary decisions, although they sometimes are. If a sum-

mary decision appears to plow new ground, cf. Teague, 489

U. S., at 301, we must look to later cases to see whether

anything grew in that furrow.

Strickland v. Washington, 466 U. S. 668 (1984) is the

Court’s most extensive and comprehensive discussion of when

the shortcomings of counsel require reversal of a criminal

judgment. See id., at 671. Strickland’s analysis of the conflict

cases bears directly on the question in this case and is worth

quoting in full and in its surrounding context.

“An error by counsel, even if professionally unreason-

able, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judg-

ment. Cf. United States v. Morrison, 449 U. S. 361, 364-

365 (1981). The purpose of the Sixth Amendment guaran-

tee of counsel is to ensure that a defendant has the assis-

tance necessary to justify reliance on the outcome of the

proceeding. Accordingly, any deficiencies in counsel’s

performance must be prejudicial to the defense in order to

constitute ineffective assistance under the Constitution.

“In certain Sixth Amendment contexts, prejudice is

presumed. Actual or constructive denial of the assistance

of counsel altogether is legally presumed to result in

prejudice. So are various kinds of state interference with

counsel’s assistance. See United States v. Cronic, ante, at

659, and n. 25. Prejudice in these circumstances is so likely

that case by case inquiry into prejudice is not worth the

20

cost. Ante, at 658. Moreover, such circumstances involve

impairments of the Sixth Amendment right that are easy to

identify and, for that reason and because the prosecution is

directly responsible, easy for the government to prevent.

“One type of actual ineffectiveness claim warrants a

similar, though more limited, presumption of prejudice. In

Cuyler v. Sullivan, 446 U. S., at 345-350, the Court held

that prejudice is presumed when counsel is burdened by an

actual conflict of interest. In those circumstances, counsel

breaches the duty of loyalty, perhaps the most basic of

counsel’s duties. Moreover, it is difficult to measure the

precise effect on the defense of representation corrupted by

conflicting interests. Given the obligation of counsel to

avoid conflicts of interest and the ability of trial courts to

~ make early inquiry in certain situations likely to give rise to

conflicts, see e.g., Fed. Rule Crim. Proc. 44(c), it is reason-

able for the criminal justice system to maintain a fairly rigid

rule of presumed prejudice for conflicts of interest. Even

so, the rule is not quite the per se rule of prejudice that

exists for the Sixth Amendment claims mentioned above.

Prejudice is presumed only if the defendant demonstrates

that counsel ‘actively represented conflicting interests’ and

that ‘an actual conflict of interest adversely affected his

lawyer’s performance.’ Cuyler v. Sullivan, supra, at 350

(footnote omitted).

“Conflict of interest claims aside, actual ineffectiveness

claims alleging a deficiency in attorney performance are

subject to a general requirement that the defendant affirma-

tively prove prejudice.” /d., at 691-693 (emphasis added).

Strickland thus establishes a carefully constructed three-tier

system based on the degree of the state’s responsibility and the

difficulty of showing adverse effect or prejudice. The first tier,

requiring no showing at all, is reserved for direct state interfer-

ence or violation of the clear and simple duty to appoint

counsel. Conflicts generally are included in the second tier.

There is no subdivision into cases where the trial court did or

\

21

did not have a-duty to inquire further. The ability to inquire is

expressly noted as the reason for reducing the normal “preju-

dice” showing down to the lower hurdle of adverse effect. The

difficulties of proof are also cited as a reason for reducing, not

eliminating, the defendant’s burden of proof. Although this

passage is arguably dictum, as Strickland is not a conflict case,

it illustrates the Court’s understanding of the different types of

Sixth Amendment claims and the showing needed for each.

This understanding was recently reiterated in Smith v. Robbins,

528 U. S. 259, 287 (2000).

Burger v. Kemp, 483 U. S. 776 (1987) applied the adverse

effect requirement to a case where the potential for conflict was

comparable to that in Wood and far stronger than the present

case. Burger was a two-defendant capital murder case in which

“each of the two defendants sought to emphasize the culpability

of the other in order to avoid the death penalty.” Jd., at 781.

Two law partners were appointed to represent the two defen-

dants in separate trials, ibid., and the Court decided the case on

the assumption that “two law partners are considered as one

attorney” for conflict purposes. /d., at 783; see also American

Bar Association, Model Rules of Professional Conduct, Rule

1.10(a), p. 36 (2001 ed.).

The Burger Court does not ask or answer the question of

whether the trial court had a duty to inquire sua sponte into the

potential conflict. Instead, the Court rejects a blanket presump-

tion of prejudice and requires a showing of both actual conflict

and adverse effect. Burger, supra, at 783 (citing Cuyler v.

Sullivan and Strickland). On this point, the Court was unani-

mous among the eight Justices who expressed an opinion.’ The

dissent concluded that the trial court did err in failing to inquire,

id., at 810 (Blackmun, J., dissenting), but nonetheless agrees

that defendant did have to show an adverse effect. The dissent

disagrees only with the application of the standard to the facts

5. Justice Powell did not address the conflict question. See id., at 817-818

(dissenting opinion).

22

of the case, not with the statement of the standard. See id., at

799, 809-810.

Burger makes clear that six years after Wood, the two-part

Cuyler v. Sullivan standard applied to all claimed conflicts in

the absence of an objection at trial, without regard to whether

the trial court had a duty to inquire sua sponte.

The First Circuit in Brien v. United States, 695 F.2d 10, 14-

15, 20 (1982) applied Cuyler v. Sullivan and required an

adverse effect, rejecting a broader interpretation of Wood. See

id., at 15,n. 10. Amicus Charles W. Wolfram states that Brien

is a “common approach” to defining the burden. C. Wolfram,

Modern Legal Ethics § 8.2, p. 415 (1986). Although a single

opinion does not necessarily render an interpretation of this

Court’s precedents objectively reasonable, see Williams v.

Taylor, 529 U.S. 362, 410 (2000), a widespread interpretation

does, and it is error to resolve conflict with such an interpreta-

tion in the habeas petitioner’s favor. See Caspari v. Bohlen,

510 U. S. 383, 395 (1994).

In People v. Bonin, 47 Cal. 3d 808, 837-838, 765 P. 2d 460,

476 (1989) Justice Mosk, writing for the California Supreme

Court, interpreted Wood and Strickland to require an adverse

effect showing. Justice Marshall, dissenting from denial of

certiorari, wrote, “This Court has never squarely resolved the

question whether proof of adverse effect is required... .

Bonin v. California, 494 U. S. 1039, 1043 (1990). He found

Sullivan unclear and Wood and Strickland “at odds.” Ibid. The

Ninth Circuit subsequently agreed that an adverse effect was

required. Bonin v. Calderon, 59 F. 3d 815, 825 (1995), cert

denied, 516 U. S.1051 (1996).

If there was doubt in 1990, it appears to have disappeared

by 1994. In Burden v. Zant, 510 U.S. 132 (1994) (per curiam),

the public defender had concurrently represented both Burden

and the principal witness against him and obtained immunity

for the witness. See Burden v. Zant, 498 U. S. 433, 434-435

(1991) (per curiam). This Court twice summarily reversed the

23

Eleventh Circuit for failure to properly credit the state court

factual finding on immunity. The second time, the remand

order directed the lower courts “to determine whether Mr.

Kondritzer’s representations created ‘an actual conflict of

interest adversely affect{ing] (his] performance.’ Cuyler v.

Sullivan, 446 U. S. 335, 350 (1980).” 510 U. S., at 134

(emphasis added, alterations in Burden).

If we are to infer controlling standards from remand orders

in unargued cases, the inference from Burden is stronger than

the inference from Wood. First, Burden is the later decision.

Second, Burden expressly states the requirement, while Wood

merely omits mention of an element which was unlikely to be

separately contested.

A survey of the legal landscape shows that the interpretation

of precedents most favorable to petitioner’s position is the one

expressed by Justice Marshall: that Wood is “at odds” with

later cases and the issue has not been “squarely resolved.” The

alternate interpretation is that Wood is not as broad as its

footnote might be read, is limited by the facts of the case, has

minimal precedential value as a decision on an unbriefed,

unargued point, and is flatly contradicted by later authority.

Any contention that petitioner’s claimed rule is dictated by

precedent within the meaning of the Teague line of cases is

patently without merit.

IV. When the holding of a Supreme Court precedent, b)

its terms, is contrary to a proposed rule, the latter rule is

per se “new,” notwithstanding the nuances of other cases.

When Justice Harlan first proposed the rule that is now

Teague, he acknowledged that it would sometimes be difficult

to determine whether a rule is really “new.” See Desist v.

United States, 394 U. S. 244, 263 (1969) (dissenting opinion).

Occasionally it is, but often it is quite straightforward. When

the Court overrules a precedent on point, the rule of the

overruling case is “new” beyond question. See Butler v.

24

McKellar, 494 U. S. 407, 412 (1990). Amicus submits that a

second class of categorically “new” rules can be defined. That

is, when the holding, not dictum, of a case states a rule of law,

a proposal to make an exception to that rule or give it a lesser

scope than it has on its face is a proposal for a new rule.

~ A somewhat analogous principle can be found in the rule

regarding application of this Court’s precedents by lower

courts. “If a precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U. S. 477, 484 (1989).

Similarly, if a rule stated by this Court is to be narrowed so as

to have a smaller scope than originally stated, it is for this Court

alone to make that limitation.

O'Dell v. Netherland, 521 U.S. 151 (1997) employed a

principle similar to the one we suggest. At the time O’Dell’s

conviction became final, California v. Ramos, 463 U. S. 992

(1983) and Caldwell v. Mississippi, 472 U. S. 320 (1985)

appeared to have established a general rule that giving the jury

accurate information about postsentencing proceedings,

including appeal, clemency, and parole, was a policy choice the

states could make either way. See 521 U. S., at 163-164. Then,

in Simmons v. South Carolina, 512 U.S. 154 (1994), “the Court

carved out an exception to the general rule described in Ramos

by, for the first time ever, requiring that a defendant be allowed

to inform the jury of postsentencing legal eventualities.”

O'Deil, supra, at 166. Prior to Simmons itself, failure to predict

that such an exception would be carved out of the general rule

could not be deemed unreasonable, and hence Simmons was a

“new rule.” /bid.

The Court of Appeals panel, in effect, read Wood as carving

out an exception to Sullivan’s adverse effect requirement

merely by omitting any discussion of the requirement. Mickens

v. Taylor, 227 F. 3d 203, 210-211 (CA4 2000). That inference

ee

25

would be shaky enough if the line of cases ended at Wood, but

it becomes particularly suspect in light of Burger’s invocation

of the requirement in a case where the dissent asserted that the

duty to inquire existed and had been breached, as well as

Burden’s explicit requirement of adverse effect in its remand

order.

The contention that Sullivan, Strickland, Burger, and

Burden do not mean what they so clearly say brings to mind

Justice Jackson’s classic lament, now nearly half a century old

yet as timely as the day it was written. “Whatever has been

intended, this Court has also generated an impression in much

of the judiciary that regard for precedents and authorities is

obsolete, that words no longer mean what they have always

meant to the profession, that the law knows no fixed princi-

ples.” Brown v. Allen, 344 U. S. 443, 535 (1953) (opinion

concurring in the judgment).

Teague and the corresponding rule of § 2254(d) share the

common goal of enhancing finality by limiting the drastic

remedy of collateral attack on final judgments to those claims

that are based on clear violations of existing rules. See Butler

v. McKellar, 494 U. S. 407, 413-414 (1990); Williams v.

Taylor, 529 U.S. 362, 404 (2000) (intent of Congress to limit);

Williams, at 410-411. To achieve this goal, courts and counsel

must be able to rely on the general rules as stated by this Court

unless and until this Court expressly carves out an exception.

Sullivan, Strickland, Burger, and Burden on their face state a

general rule applicable to all claims of attorney conflict to

which no objection was made at trial. If an exception is to be

made, it must be made on direct review in a case postdating

Burger and Burden. Until then, any proposal for such a rule is

per se “new.”

26

CONCLUSION

The decision of the Court of Appeals for the Fourth Circuit

should be affirmed. 2

September, 2001

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation