United States v. Nicholson ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-6092
JACK LAVELTON NICHOLSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., Senior District Judge.
(CR-01-41; CA-02-793)
Argued: September 20, 2006
Decided: February 2, 2007
Before KING and DUNCAN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Reversed and remanded by published opinion. Judge King wrote the
opinion, in which Judge Duncan and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Marvin David Miller, Alexandria, Virginia, for Appel-
lant. James Ashford Metcalfe, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Terri J. Harris, LAW OFFICES OF
MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant United
2 UNITED STATES v. NICHOLSON
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Petitioner Jack Lavelton Nicholson, a federal inmate serving a sen-
tence imposed in the Eastern District of Virginia, has been awarded
a certificate of appealability (the "COA") on the district court’s denial
of his 28 U.S.C. § 2255 motion for a writ of habeas corpus. See Nich-
olson v. United States, No. 2:02cv793 (E.D. Va. Oct. 15, 2003) (the
"Opinion").1 The COA, issued by this Court on November 10, 2004,
relates to whether Nicholson’s lawyer had an actual conflict of inter-
est during Nicholson’s sentencing proceedings and presents the ques-
tion of whether his sentence should be vacated due to the denial of
his Sixth Amendment right to effective assistance of counsel. As
explained below, Nicholson’s lawyer had an actual conflict of interest
when Nicholson was sentenced, and we reverse and remand for a
determination of whether that conflict adversely impacted the perfor-
mance of his lawyer in Nicholson’s sentencing proceedings.
I.
A.
Nicholson seeks to vacate his sentence, pursuant to § 2255, on the
basis that his lawyer had an actual conflict of interest and provided
him ineffective assistance of counsel in his sentencing proceedings.
Under § 2255, a petitioner may collaterally attack his sentence and
seek habeas corpus relief if "the sentence was imposed in violation of
the Constitution or laws of the United States . . . ." 28 U.S.C. § 2255.
After a district court has denied a § 2255 motion, the petitioner is not
entitled to pursue an appeal unless he has been granted a COA, see
id. § 2253(c)(1)(B), which may be issued only if the petitioner "has
1
The Opinion, dated October 15, 2003, is found at J.A. 256-71. (Cita-
tions to "J.A. ___" refer to the Joint Appendix filed in this appeal.)
UNITED STATES v. NICHOLSON 3
made a substantial showing of the denial of a constitutional right," id.
§ 2253(c)(2). The COA must indicate the specific issue or issues on
which it is granted. See id. § 2253(c)(3). Although Nicholson pursued
several ineffective assistance claims in the district court, he has been
granted a COA on only one issue: "Did an actual conflict of interest
cause [his] counsel to render constitutionally ineffective assistance
when he failed to move for a downward departure?" United States v.
Nicholson, No. 04-6092 (4th Cir. Nov. 10, 2004) (Order granting
COA). Thus, this appeal is limited to an evaluation of that issue.
In connection with the COA, Nicholson asserts that his lawyer was
operating under an actual conflict of interest at his August 29, 2001
sentencing hearing because, at that time, Nicholson’s lawyer, Jon
Babineau, was representing Nicholson as well as another client,
Lorenzo Butts. Butts had previously threatened to kill Nicholson and
his family, had attempted to kill Nicholson’s brother, and had already
killed Nicholson’s step-father. Nicholson, who was convicted of a
federal offense for his possession of a firearm and ammunition by a
felon, asserts that he carried the handgun to protect himself from
Butts. Nicholson maintains that Babineau, during the sentencing pro-
ceedings, failed to request a downward departure based on Nichol-
son’s need to carry the handgun because, in so doing, Babineau would
have accused his other client (Butts) of uncharged criminal conduct.
Nicholson asserts that an actual conflict of interest thus existed, and
that it adversely affected the performance of his lawyer during the
sentencing proceedings, in contravention of his Sixth Amendment
right to the effective assistance of counsel.
B.
1.
Nicholson was arrested on January 7, 2001 in Portsmouth, Vir-
ginia, on a state charge of possession of a firearm by a felon, after a
police officer found a handgun on his person.2 This charge was even-
2
The facts underlying this appeal are primarily taken from the § 2255
motion and its supporting and opposing affidavits, and other materials
submitted to the district court. The district court did not conduct an evi-
dentiary hearing in this matter, and some allegations of the motion and
affidavits are disputed. The court ruled that the evidence failed to show,
by a preponderance of the evidence, an actual conflict of interest, and it
denied Nicholson’s § 2255 motion. See Opinion 9, 15.
4 UNITED STATES v. NICHOLSON
tually dropped and replaced by a single federal charge of possession
of a firearm and ammunition by a felon, in violation of 18 U.S.C.
§§ 922(g)(1), 942(a)(2), and (e). Nicholson was indicted by the fed-
eral grand jury on March 23, 2001, and he was taken into federal cus-
tody on April 3, 2001.
When the Virginia authorities first arrested Nicholson, he made
statements to the arresting officers that he had obtained the handgun
for his personal protection because he feared a man named Lorenzo
Butts and his associates. These statements included the following: In
early 2000, Nicholson’s brother, Rudolph Nicholson, had agreed to
assist federal officers in their attempts to uncover various criminal
activities of Butts and his associates. Following this arrangement, on
March 3, 2000, Rudolph was shot seven times by Butts’s son, Vito,
in Portsmouth. Although Rudolph survived this vicious attack, an
assassin (dressed as a priest) attempted to enter Rudolph’s hospital
room in Norfolk, Virginia, where he was treated for two months
(while under protective custody) and again tried to kill him. Around
May 2000, Nicholson and his mother, Sandy Nicholson, were
informed by federal officers that Butts had placed a contract on Nich-
olson’s life, in an endeavor to have him killed and influence his
brother Rudolph. On September 18, 2000, Charles Nicholson,
Rudolph’s father and Nicholson’s step-father, was fatally shot multi-
ple times by two men on a street in Portsmouth.
After his step-father was murdered, Nicholson obtained a handgun
from a friend and left Portsmouth to stay with a cousin in Alexandria,
Virginia. In early 2001, he returned to Portsmouth to meet with his
probation officer. Nicholson still had the handgun, which did not
work, in his possession. He had it repaired in Portsmouth on January
6, 2001. The next day Nicholson was stopped and searched by Ports-
mouth police officers, who found the handgun and arrested Nicholson
for the illegal possession of a firearm.
2.
Following his January 7, 2001, arrest, Nicholson retained attorney
Jon Babineau to represent him on the state charge, and that represen-
tation continued over to the subsequent federal charge. According to
Nicholson’s affidavit, he explained to Babineau on several occasions
UNITED STATES v. NICHOLSON 5
that he only had the handgun to protect himself from Butts. Nicholson
told Babineau that he was afraid of Butts because Butts had placed
a contract on his life and had already killed Nicholson’s step-father,
threatened his mother, and attempted to kill his brother. Nicholson’s
mother, according to her affidavit, told Babineau that the only reason
her son carried the firearm was his fear that Butts was going to kill
him, and she also explained to Babineau Butts’s other threatening
actions against her family.
Babineau, on the other hand, has asserted by affidavit that Nichol-
son never advised him that he was fearful of Butts. Instead, he asserts
that Nicholson told him that he needed the handgun for protection due
to dangerous situations created by some activities in which he was
involved, but he did not say that he feared he would be harmed by
Butts. Babineau also stated that Sandy Nicholson (Nicholson’s
mother) only spoke with him about his attempts to get her son a
downward sentencing departure for his substantial assistance to law
enforcement — never mentioning Butts or his threats. When
Babineau arranged for federal agents to debrief Nicholson, with a
view toward providing substantial assistance, Nicholson informed the
agents that he did not have any information regarding Butts and was
not sure what Butts looked like. During discovery in the federal pros-
ecution of Nicholson, Babineau received Nicholson’s statements from
the prosecutors. Those statements explain that Nicholson only carried
the handgun for protection against Butts and his associates.
3.
On November 18, 2000, Butts was arrested by local and federal
authorities in the Eastern District of Virginia on conspiracy, drug dis-
tribution, and firearms charges.3 After a trial in federal court, Butts
was found guilty on April 30, 2001, of multiple offenses. Babineau
did not represent Butts at the trial but, on May 29, 2001, he served
as Butts’s counsel during a preliminary hearing conducted in Virginia
state court on conspiracy, murder, and firearms charges. Both prior to
and during the time Babineau was representing Butts in these state
3
Nicholson apparently continued to carry his handgun after Butts and
several of his associates had been arrested. The parties dispute, however,
whether Nicholson knew that Butts was in custody at that time.
6 UNITED STATES v. NICHOLSON
proceedings, Babineau was representing and advising Nicholson on
whether he should accept a proposed plea agreement from the Gov-
ernment on Nichsolson’s federal indictment.4 Babineau never
informed Nicholson that he was also representing Butts on state crim-
inal charges, nor did Babineau seek Nicholson’s consent to represent
both clients during the same time frame. On May 1, 2001, the Gov-
ernment offered a plea agreement to Nicholson, and a plea hearing
was scheduled for May 23, 2001. On May 22, 2001, Babineau
informed the prosecutors that Nicholson had decided not to plead
guilty at the scheduled hearing, but that Babineau believed Nicholson
would eventually plead guilty.
On June 6, 2001, Nicholson pleaded guilty to the federal offense
of possession of a firearm and ammunition by a felon, in violation of
§§ 922(g)(1), 942(a)(2), and (e). His guilty plea was tendered without
a plea agreement, because Nicholson would not agree to waive his
right of appeal. During the Rule 11 plea colloquy, the Government
acknowledged that it was reasonable to believe that someone might
try to injure or shoot Nicholson. After Nicholson’s plea proceedings,
Butts terminated his initial counsel (Thomas Shuttleworth) in his
ongoing federal proceedings and, on June 22, 2001, notified the dis-
trict court that Babineau was his lawyer. Babineau then received the
Presentence Investigation Report on Butts (the "Butts PSR"), which
contained information implicating Butts in Rudolph’s shooting and
the murder of Nicholson’s step-father. It also stated that Butts’s "hit"
list included Nicholson. On July 23, 2001, Nicholson’s Presentence
4
During the period leading up to his federal plea proceedings, Nichol-
son and Babineau discussed going to trial and seeking to interpose the
affirmative defense of necessity. Babineau informed Nicholson that, in
order to assert a successful necessity defense, he would have to testify
at trial. Babineau further explained that, if Nicholson chose to testify, he
would be subject to cross-examination on his prior criminal history.
Nicholson asserts that Babineau, who was representing Butts during at
least part of this time, discouraged Nicholson from pursuing a necessity
defense because, in order to prove the defense, Babineau would have
implicated Butts in additional uncharged criminal conduct. Nicholson
also asserted an ineffective assistance claim in this regard. The district
court’s Opinion determined that this contention was not a valid claim.
We did not award Nicholson a COA on this specific issue, and
Babineau’s advice on the necessity defense is not a subject of this appeal.
UNITED STATES v. NICHOLSON 7
Investigation Report (the "Nicholson PSR") was issued, and it pointed
out that Nicholson had advised the authorities that he carried the
handgun for protection because he feared an individual who was try-
ing to harm him.
On July 24, 2001, Babineau served as Butts’s counsel at his sen-
tencing proceedings in the Eastern District of Virginia. He also served
as Butts’s lawyer on his appeal to this Court, which was filed on July
31, 2001. As part of that appeal, Babineau maintained, inter alia, that
the district court had erred by admitting trial evidence of Butts’s prior
bad acts, including evidence of the attempted murder of Rudolph and
the murder of Nicholson’s step-father. See United States v. Butts, No.
01-4606 (4th Cir. Nov. 18, 2002).
4.
The sentencing hearing for Nicholson was conducted in the district
court on August 29, 2001. During the hearing, Babineau sought a
downward departure under section 5H1.4 of the Sentencing Guide-
lines because of Nicholson’s health, which the district court denied.5
At the hearing, the prosecutors advised the court that certain individu-
als were trying to kill Nicholson at the time of his arrest. Nicholson
explained to the court that he only carried the handgun to protect him-
self from the persons who had killed his step-father and had attempted
to kill his brother. Babineau, however, did not mention any of the cir-
cumstances surrounding Nicholson’s arrest, nor did he request a
downward departure based on the self-defense necessity of Nicholson
carrying the handgun. At the conclusion of the hearing, the court
adopted the Nicholson PSR, accepting the recommendation of a base
offense level of 30 with a criminal history category of VI. This placed
Nicholson in the Guidelines range of 168-210 months. The statutory
minimum for Nicholson’s offense, however, was 180 months, and the
court sentenced him to 189 months.6
5
Nicholson had been diagnosed with sickle cell amenia when he was
a child and testified at the sentencing hearing that he is typically hospital-
ized for the disease five or six times a year.
6
Based on his criminal history, Nicholson was sentenced as an armed
career criminal under 18 U.S.C. § 924(e). Because he was deemed to be
an armed career criminal, Nicholson faced a mandatory minimum of 180
months and a maximum of life.
8 UNITED STATES v. NICHOLSON
5.
Nicholson thereafter appealed the district court’s denial of a down-
ward departure based on his poor health. His sentence was affirmed
by our unpublished opinion of June 10, 2002. See United States v.
Nicholson, 36 Fed. Appx. 151 (4th Cir. 2002). On June 6, 2003, Nich-
olson filed his § 2255 motion in the Eastern District of Virginia,
claiming ineffective assistance of counsel. By its Opinion of October
15, 2003, the court, without conducting a hearing, denied relief. See
Opinion 15. In so ruling, the district court concluded that Babineau’s
simultaneous representation of Butts and Nicholson did not create an
actual conflict of interest because Babineau was not representing
Nicholson and Butts in cases arising from the same set of circum-
stances. See id. at 9. The court further concluded that, even if there
was a conflict of interest, any necessity defense interposed by Nichol-
son at trial would have been unsuccessful. See id. at 13. The court did
not address whether it would have been objectively reasonable for
Babineau to seek a downward sentencing departure based on neces-
sity and self-defense.7
Nicholson applied for a COA on December 4, 2003, and, on
November 10, 2004, we granted the COA on whether an actual con-
flict of interest caused Babineau to render constitutionally ineffective
assistance when he failed to move for a downward departure in Nich-
olson’s sentencing. We possess jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253.8
7
The COA issue was asserted by Nicholson in the district court. See
Pet. Mem. in Supp. of Mot. to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 ¶ 62. His § 2255 motion focused primarily,
however, on Babineau’s advice concerning the assertion of the affirma-
tive defense of necessity in a trial.
8
Nicholson sought, in his opening brief, to expand his COA. We
denied this request on June 27, 2005. Prior to oral argument of this
appeal, Nicholson submitted a Rule 28(j) letter and then a Supplemental
Motion to Accept Attachments to Appellant’s Reply Brief, the attach-
ments being a Virginia ethics opinion and a timeline of events. We grant
the motion to accept attachments with respect to the Virginia ethics opin-
ion, but deny the motion with respect to the timeline of events. We deny
as moot the Government’s motion to strike Nicholson’s Rule 28(j) sub-
mission.
UNITED STATES v. NICHOLSON 9
II.
In general, in an appeal relating to the denial of a § 2255 motion,
we review a district court’s legal conclusions de novo. See United
States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004). Because the dis-
trict court denied relief without a hearing, it was not able to make
findings of fact on disputed factual issues. Although the court did not
characterize its disposition of this matter as either a dismissal or an
award of summary judgment (but simply as a denial of § 2255 relief),
it did weigh and consider the affidavits and other materials submitted
by the parties. Thus, its ruling was in the nature of a summary judg-
ment award to the Government.9 In reviewing an award of summary
judgment, we review the facts in the light most favorable to the non-
moving party, which, in this appeal, is Nicholson. See Seabulk Off-
shore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408, 418 (4th Cir.
2004). We review de novo any mixed questions of law and fact
addressed by the district court on whether the petitioner has estab-
lished a valid Sixth Amendment ineffective assistance claim. See
Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997) ("Whether
counsel’s performance was constitutionally adequate is a mixed ques-
tion of law and fact which we review de novo." (internal quotation
marks omitted)).
III.
In support of his COA, Nicholson contends that the district court
erred in concluding that Babineau’s simultaneous representation of
Butts and Nicholson, as spelled out above, did not create any actual
conflict of interest, and thus did not result in Nicholson being pro-
vided with constitutionally ineffective assistance. The Sixth Amend-
ment guarantees an accused the right to effective assistance of
counsel, see Strickland v. Washington, 466 U.S. 668, 686 (1984), and
an essential aspect of this right is a lawyer "unhindered by conflicts
of interest." Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir. 2001) (en
banc), aff’d, 535 U.S. 162 (2002); see also Cuyler v. Sullivan, 446
U.S. 335, 348-50 (1980). In general, to prevail on an ineffective assis-
9
In its Opinion, the district court characterized Nicholson’s claim as a
civil action, in which he was obliged to establish his allegations by a pre-
ponderance of the evidence. See Opinion 4.
10 UNITED STATES v. NICHOLSON
tance claim, a petitioner must establish (1) that his lawyer’s perfor-
mance was deficient by showing that his performance fell below an
objectively reasonable standard, and (2) that his deficient perfor-
mance prejudiced the petitioner’s case. See Strickland, 466 U.S. at
687; see also Mickens, 240 F.3d at 355.
We have recognized that, as a general proposition, "[t]he effective
performance of counsel requires meaningful compliance with the duty
of loyalty and the duty to avoid conflicts of interest, and a breach of
these basic duties can lead to ineffective representation." United
States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991). When a petitioner
premises his ineffective assistance claim on the existence of a conflict
of interest, the claim is subjected to the specific standard spelled out
in Cuyler v. Sullivan, 446 U.S. 335 (1980), instead of that articulated
in Strickland. See Strickland, 466 U.S. at 692. To establish that a con-
flict of interest resulted in ineffective assistance, "[m]ore than a mere
possibility of a conflict . . . must be shown." Tatum, 943 F.2d at 375(emphasis removed). The petitioner must show (1) that his lawyer
was under "an actual conflict of interest" and (2) that this conflict "ad-
versely affected his lawyer’s performance." Sullivan, 446 U.S. at 348.
If the petitioner can show an actual conflict, and that it adversely
affected his lawyer’s performance, prejudice is presumed and there is
no need to demonstrate a reasonable probability that, but for the law-
yer’s conflict of interest, the trial or sentencing outcome would have
been different. See Sullivan, 446 U.S. at 349-50. In evaluating and
applying these principles, we recognize that an adverse effect is not
presumed from the existence of an actual conflict of interest. See
Mickens, 240 F.3d at 360. That said, we assess each of the two prongs
of the Sullivan test in turn, that is, (1) whether Babineau had an actual
conflict of interest, and (2) whether that conflict adversely affected
Babineau’s performance in Nicholson’s sentencing proceedings.
A.
Nicholson first contends that the district court erred in concluding
that there was no actual conflict of interest when Babineau simulta-
neously represented both Nicholson and Butts. To establish an actual
conflict of interest, Nicholson "must show that [his] interests diverged
with respect to a material factual or legal issue or to a course of
action." Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir. 1998) (en banc)
UNITED STATES v. NICHOLSON 11
(internal quotation marks omitted); see also Tatum, 943 F.2d at 376(concluding that actual conflict of interest exists when lawyer is
required to "account to two masters" or when lawyer fails to take
action on behalf of one client because it would adversely affect
another).
By its Opinion, the district court determined that Babineau was not
operating under an actual conflict of interest, because he was not rep-
resenting "both defendants or potential defendants in an action arising
from the same set of circumstances or transactions." Opinion 9. The
court determined that Babineau was not required to attack the inno-
cence of one client in order to serve the other, as Butts was not facing
any charges related to having contracted for the killing of Nicholson.
See id. The court also reasoned that Nicholson was never in the posi-
tion of having to testify against Butts, nor Butts against Nicholson,
and that Nicholson and Butts never had any direct contact with each
other. See id.Contrary to the district court’s ruling, Babineau’s representation of
Nicholson and Butts created an actual conflict of interest. Although
Nicholson and Butts were not charged with offenses arising out of the
same set of circumstances, Nicholson’s interests, on the one hand, and
Butts’s interests, on the other, were in total opposition to each other
during Babineau’s simultaneous representation of them. On this
record, Nicholson and his mother each advised Babineau that the only
reason Nicholson carried the handgun was to protect himself from
Butts and his associates. Importantly, Babineau had received and
knew, through Nicholson’s statements to police officers (which
Babineau had secured in the federal discovery proceedings relating to
Nicholson’s indictment), that Butts had placed a "hit" on Nicholson,
that Butts had attempted to kill Nicholson’s brother, and that Butts
had murdered Nicholson’s step-father.
Furthermore, the Butts PSR discussed the involvement of Butts in
the attempted murder of Nicholson’s brother and the murder of Nich-
olson’s step-father. That PSR, which was made available to Babineau
in connection with his representation of Butts, also revealed that Butts
had put out a "hit" on Nicholson. In addition, at the time of Nichol-
son’s sentencing, Babineau was preparing to contend in Butts’s
appeal to this Court that the evidence of violence against Nicholson’s
12 UNITED STATES v. NICHOLSON
family had been improperly admitted at Butts’s trial. If Babineau had
pursued a downward departure motion based upon Nicholson’s neces-
sity to carry the handgun for self defense, he would have been obliged
to assert that Nicholson’s fear of Butts was real. See U.S.S.G.
§ 5K2.12 ("If the defendant committed the offense because of serious
coercion, blackmail or duress, under circumstances not amounting to
a complete defense, the court may decrease the sentence below the
applicable guideline range . . . . Ordinarily coercion will be suffi-
ciently serious to warrant departure only when it involves a threat of
physical injury . . . ."). In so doing, Babineau would, in seeking a
downward departure for Nicholson, necessarily have accused his
other client, Butts, of uncharged criminal conduct.
It is clear to us that Babineau’s actions were in contravention of the
applicable ethical standards. When Babineau undertook his represen-
tation of Nicholson, it had been established that "[d]efense counsel
have an ethical obligation to avoid conflicting representations . . . ."
Sullivan, 446 U.S. at 346. And the Virginia Rules of Professional
Conduct prohibit a lawyer from representing a client if that represen-
tation would affect the interests of another client. See Va. Rules of
Prof’l Conduct 1.7(b). A lawyer can only avoid such a conflict, and
continue representation, if (1) the lawyer reasonably believes that he
would be "able to provide competent and diligent representation to
each affected client," (2) "the representation is not prohibited by law,"
(3) "the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in . . . other
proceedings before a tribunal," and (4) each client consents in writing.
Id. The Virginia rules make it clear that "[l]oyalty to a client is also
impaired when a lawyer cannot consider, recommend or carry out an
appropriate course of action for the client because of the lawyer’s
other responsibilities or interests. The conflict in effect forecloses
alternatives that would otherwise be available to the client." Va. Rules
of Prof’l Conduct 1.7(b) cmt. 8.
In responding to a hypothetical situation posed by Nicholson’s cur-
rent counsel, the Virginia State Bar Standing Committee on Legal
Ethics has opined that "the defense attorney in this hypothetical had
an impermissible conflict of interest in representing these two defen-
dants . . . ." Va. State Bar Standing Comm. on Legal Ethics, Informal
UNITED STATES v. NICHOLSON 13
10
Op. 1796 (2004). Based on the factual scenario presented to the
Committee, it concluded that nothing in the facts could have sup-
ported a lawyer’s belief that his representation of one client would not
have adversely affected his representation of the other. See id.11
10
Although this ethics opinion is not binding on us, it is worthy of con-
sideration and is entitled to such weight, if any, we desire to accord it.
See Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145,
149-50 (1968) (recognizing that Rules of American Arbitration Associa-
tion and Canons of Judicial Ethics are not binding authority, but that they
are "highly significant"). The Virginia Bar’s opinion is consistent with
the conclusion we have reached, and it demonstrates that the appropriate
legal ethics body of the Commonwealth of Virginia is in substantial
agreement with our view. We deem the opinion to be of some signifi-
cance, but not as binding authority.
11
The hypothetical set of facts presented to the Committee by Nichol-
son’s lawyer are substantially similar to those underlying this appeal, and
they were recited by the Committee as follows:
You have presented a hypothetical situation involving a defense
attorney defending two criminal defendants in separate cases.
Defendant #1 retained the attorney to represent him on a charge
of possession of a firearm as a convicted felon in state court.
Defendant #1 told the police at the time of his arrest that he had
a gun solely to protect himself from Defendant #2, who had shot
his brother, murdered his step-father, and placed a contract on
Defendant #1’s life. The state weapons charge was dismissed
against Defendant #1. He was then charged with a federal weap-
ons charge for the same firearm. Defendant #1 again hired the
attorney for the federal case. Defendant #2 then hired that same
attorney to represent him in state court on charges of first degree
murder, abduction, conspiracy to commit murder, possession of
a firearm by a convicted felon, and use of a firearm in the com-
mission of a felony. Defendant #1 told the attorney he did not
want to plead guilty to the firearms charge because he had the
gun solely to protect himself from Defendant #2. The case was
set for trial. The attorney reviewed discovery materials which
identified Defendant #2, his client, as the person Defendant #1
feared. The attorney did not disclose to either client or either
court that he represented both Defendant #1 and #2. The attorney
persuaded Defendant #1 to plead guilty, forego raising the self-
defense issue, and forego implicating Defendant #2. Defendant
14 UNITED STATES v. NICHOLSON
Even assuming that Babineau reasonably believed that he could
adequately represent both Nicholson and Butts, his simultaneous rep-
resentation of both defendants necessarily placed him in the position
of having to make claims against Butts in order to pursue a downward
departure motion, on the basis of self-defense necessity, in Nichol-
son’s sentencing hearing. Thus, Babineau had to "pull his punches"
at Nicholson’s sentencing hearing in order to avoid accusing his other
client, Butts, of uncharged criminal conduct. Although Babineau had
an ethical duty to fully inform Nicholson of his representation of
Butts, he failed to do so. Babineau, in representing Nicholson, was
thus in the untenable position of having to place the interests of one
client (either Butts or Nicholson) above another (either Nicholson or
Butts) at Nicholson’s sentencing hearing. Babineau was thus impaired
by an actual conflict of interest in the context of those proceedings.
B.
Finally, Nicholson contends that Babineau’s conflict of interest
adversely affected his performance in Nicholson’s sentencing hearing.12
#1 was sentenced to fifteen years imprisonment. Defendant #2
was sentenced to 105 years imprisonment. The attorney accepted
the court appointment to represent Defendant #1 in his appeal;
he again did not disclose to clients or the court that he repre-
sented each of these defendants. Defendant #1’s conviction and
sentence were affirmed.
Va. State Bar Standing Comm. on Legal Ethics, Informal Op. 1796
(2004).
12
The Government maintains that there was no adverse impact on
Nicholson because it was not objectively reasonable for Babineau to
move for a downward departure, as Nicholson’s minimum Guidelines
sentence was already lower than the statutory minimum. Nicholson,
however, was required to move for a downward departure prior to the
court’s final sentencing decision and, at that time, the Nicholson PSR’s
recommendation was merely that — a recommendation. Furthermore,
Babineau actually moved for a downward departure based on another
theory (Nicholson’s health situation). Although a motion for a downward
departure on self-defense necessity may have proven futile, the advance-
ment of that theory, along with the presentation of supporting evidence,
may have convinced the court to sentence Nicholson to the statutory
minimum instead of, as imposed, nine months above the minimum.
UNITED STATES v. NICHOLSON 15
To establish an adverse effect, a § 2255 petitioner must satisfy, by a
preponderance of the evidence, a three-part standard. See Mickens,
240 F.3d at 361. He must, first of all, "identify a plausible alternative
defense strategy or tactic that his defense counsel might have pur-
sued." Id. Second, he must establish that "the alternative strategy or
tactic was objectively reasonable under the facts of the case known
to the attorney at the time of the attorney’s tactical decision." Id. In
order to satisfy this second prong, "the petitioner must show that the
alternative strategy or tactic was ‘clearly suggested by the circum-
stances.’" Id. (quoting Tatum, 943 F.2d at 376). Lastly, he must show
that "the defense counsel’s failure to pursue that strategy or tactic was
linked to the actual conflict." Id. In establishing these three aspects of
this test, the petitioner is not required to show that the strategy or tac-
tic not taken would have been successful, but only that it would have
been objectively reasonable. See id.We have recognized that "much of the adverse effect inquiry is
heavily fact dependent," and we are thus obliged, on appellate review,
to defer to a habeas court’s findings of fact. Mickens, 240 F.3d at 360.
In this situation, however, the habeas court did not conduct a hearing
and resolve the disputed factual contentions. It also did not reach and
address whether Babineau’s conflict adversely affected his perfor-
mance in Nicholson’s sentencing proceedings, when Babineau failed
to move for a downward departure for self-defense necessity.13 Thus,
there are material factual issues yet to be addressed and determined
13
The district court, in its Opinion, considered whether Babineau’s
advice to Nicholson to forego a self-defense necessity defense at trial,
and instead plead guilty, created an adverse effect on Babineau’s perfor-
mance. See Opinion 10-13. The Government suggests that the court’s
conclusion that the necessity defense would have been unsuccessful indi-
cates that a motion for downward departure would have also been unsuc-
cessful. This position is unsound for at least two reasons. First, however,
Nicholson does not have to show that the motion for a downward depar-
ture would have been successful, but rather that it would have been
objectively reasonable for such a motion to be made. See Mickens, 240
F.3d at 360. Second, the standard for a downward departure based on
self-defense necessity at sentencing is not as stringent as the standard for
the necessity affirmative defense at trial. See U.S.S.G. § 5k2.12 (provid-
ing that downward departure can be granted when circumstances do not
amount to successful affirmative defense).
16 UNITED STATES v. NICHOLSON
in this case. In these circumstances, we are obliged to remand for a
determination and assessment of the relevant facts, and for such other
and further proceedings as may be appropriate.
IV.
Pursuant to the foregoing, we reverse the district court’s ruling that
an actual conflict of interest did not exist, and remand for a determi-
nation on whether Babineau’s conflict adversely impacted his perfor-
mance in Nicholson’s sentencing proceedings.
REVERSED AND REMANDED