Hall, Kevin T. v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2972
KEVIN T. HALL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 C 86—William D. Stiehl, Judge.
____________
ARGUED OCTOBER 24, 2003—DECIDED JUNE 15, 2004
____________
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. On August 20, 1999, Kevin T. Hall
was charged in Count One of a three-count indictment for
conspiracy to distribute marijuana and possession with
intent to distribute the drug in violation of 21 U.S.C.
§§ 841(a)(1), 846. Hall pleaded guilty on November 22,
1999, and on February 7, 2000, the district court sentenced
Hall to 37 months of imprisonment, 2 years of supervised
release, and a special assessment of $100. On February 9,
2001, Hall filed a motion to vacate or set aside his convic-
tion, pursuant to 28 U.S.C. § 2255. The district court denied
the motion. After timely filing a notice of appeal, Hall filed
a motion to proceed in forma pauperis on July 1, 2002. The
2 No. 02-2972
district court construed the motion as including a request
for a certificate of appealability, and on July 23, 2002,
granted Hall’s motion to proceed in forma pauperis, but
denied certificate of appealability.
On December 12, 2002, we granted a certificate of ap-
pealability, “as to whether counsel rendered ineffective
assistance in violation of the Sixth Amendment due to a
conflict of interest, and whether counsel’s alleged conflict
adversely affected his representation of Hall during pre-
trial proceedings and the plea process.” We now remand for
an evidentiary hearing to determine whether there was an
actual conflict of interest, which adversely affected the
adequacy of his representation.
BACKGROUND
Kevin Hall is an inmate at the Federal Correctional
Institution in Greenville, Illinois (“FCI Greenville”), and
was when he was indicted. Assistant Federal Public
Defender Lawrence J. Fleming was appointed as Hall’s
counsel on September 10, 1999. Earlier, Fleming had rep-
resented a defendant named Anthony Gignac. Gignac had
pleaded guilty and had been sentenced ten days before
Fleming began his representation of Hall.
On September 16, 1999, Fleming revealed his representa-
tion of Gignac to the Assistant United State’s Attorney who
was prosecuting Hall. He explained that Gignac had
informed prison officials that one Thomas Belwood, one of
Hall’s co-defendants, was involved in the distribution of
marijuana while serving as a corrections officer at FCI
Greenville. Fleming expressed his assumption that the
reports of drug dealing at FCI Greenville that Gignac had
given to FBI agents in connection with his proffer still
existed. Fleming concluded by noting his concern that his
serving as Gignac’s counsel created a conflict of interest in
his representation of Hall: “If there is any possibility that
No. 02-2972 3
Gignac will be a witness in this case, there is an obvious
conflict.” Br. of Petitioner-Appellant at 3.
The district court set Hall’s pretrial conference for
November 18, 1999, and a jury trial for December 7, 1999.
Each of Hall’s co-defendants pleaded guilty by the end of
November 1999. During that time, Fleming had been
communicating with the government in an effort to reach a
plea agreement for Hall. In another letter to the AUSA,
dated October 27, 1999, Fleming expressed desire to begin
conversation about Hall’s case and stated that, “if you will
recommend the low end of the Guidelines and agree that
there will be no further prosecutions for any offense now
known to the Government, I will recommend that Mr. Hall
plead guilty pursuant to your standard plea agreement.” Br.
of Petitioner-Appellant at 4.
With respect to Fleming’s conflict of interest, the October
27 letter expressed Fleming’s assumption that the AUSA
did not perceive any conflict based on Fleming’s prior
representation of Gignac:
Finally, since I have not received a response to my
letter of September 16, 1999, I assume you do not see
any conflict on behalf of our office in this case. If you do,
please let me know immediately.
Id.
In a letter from Fleming to the AUSA dated November 9,
1999, Fleming stated that he had not received a plea
agreement from the AUSA despite the scheduled change of
plea hearing on November 16, 1999:
I don’t have a plea agreement from you yet, but if you
agree with the computations set out in my letter of
October 27, 1999 (copy attached) I’d appreciate you
getting a draft of a plea agreement to me by Monday,
November 15, 1999, so that I have a chance to review it
with Mr. Hall before the 16th.
4 No. 02-2972
Br. of Petitioner-Appellant at 5.
The November 9 letter also stated that the government
had not provided the discovery that Fleming’s October 27
letter had requested:
Mr. Hall is still rather adamant about the fact that we
still don’t have all the discovery, so if you have any-
thing else you can give me, please send that also.
Id.
Fleming concluded the November 9 letter noting his
concern that convincing Hall to plead guilty was going to be
difficult:
This is going to require a continuing sales job on my
part, since my client is fairly well ‘institutionalized’, so
please give me whatever you can to answer his argu-
ments.
Id.
Hall pleaded guilty on November 22, 1999 and was
sentenced. Hall eventually received a copy of his entire case
file where he learned for the first time that Fleming had
represented Gignac. In addition, there is no indication in
the record that Fleming informed the district court of the
potential conflict.
DISCUSSION
I. Standard of Review
In reviewing the district court’s order denying a peti-
tioner’s motion to vacate or set aside his conviction pur-
suant to 28 U.S.C. § 2255, we review all questions of law de
novo. Stoia v. United States, 22 F.3d 766, 768 (7th Cir.
1994). The district court’s factual findings are reviewed for
clear error. Id. A § 2255 petitioner is entitled to an eviden-
tiary hearing on his claims, when he alleges facts that, if
proven, would entitle him to relief. Id.
No. 02-2972 5
Hall’s § 2255 assertion that he was denied his Sixth
Amendment right to effective assistance of counsel is re-
viewed de novo. Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th
Cir. 1997), modified in part, 127 F.3d 551 (7th Cir. 1997).
II. Analysis
Criminal defendants are guaranteed effective assistance
of counsel at all stages of the proceedings against them.
Cates v. Superintendent, 981 F.2d 949, 952 (7th Cir. 1992).
This right includes the right to “representation that is free
from conflict of interest.” Spreitzer, 114 F.3d at 1450 (quot-
ing Wood v. Georgia, 450 U.S. 261, 271 (1981)).
There are two ways to assert a claim based on counsel’s
conflict of interest. One, under Strickland v. Washington,
466 U.S. 668 (1984), the petitioner may show that his
attorney had a potential conflict of interest and that the
potential conflict prejudiced his defense; or two, the peti-
tioner may proceed under Cuyler v. Sullivan, 446 U.S. 335
(1980), where he must establish a violation “by showing
that ‘an actual conflict of interest adversely affected his
lawyer’s performance.’ ” Stoia, 22 F.3d at 770 (quoting
Sullivan, 446 U.S. at 348) (emphasis added).
Proceeding under Sullivan places a “lighter burden” on
the defendant than Strickland because demonstrating an
“adverse effect” is significantly easier than showing “pre-
judice”. Spreitzer, 114 F.3d at 1450; Stoia, 22 F.3d at 771.
This more lenient standard applies because the require-
ments in Sullivan reflect that “prejudice is presumed” if the
petitioner establishes both that his counsel had an actual
conflict and that the conflict had an adverse effect on
counsel’s performance. Stoia, 22 F.3d at 770-71 (quoting
Strickland, 466 U.S. at 692).
6 No. 02-2972
Conflict of Interest
Under Sullivan, an actual conflict exists if the defense
counsel was faced with a choice between advancing his own
interests above those of his client. Stoia, 22 F.3d at 771. We
have held that an attorney’s prior representation of another
client leads to an actual conflict when the attorney faces the
possibility of having to cross-examine his former client.
Enoch v. Gramley, 70 F.3d 1490, 1496 (7th Cir. 1995). “A
corollary danger is that the lawyer will fail to cross-examine
the former client rigorously for fear of revealing or misusing
privileged information.” Id. Here, Hall’s defense counsel
had a potential conflict of interest because of his represen-
tation of Gignac, who, according to Fleming’s account, had
provided information about Belwood’s drug-distribution
activities at FCI Greenville to FBI agents. Because Hall
was charged with conspiring with Belwood, Gignac’s
implication of Belwood pertained to the offenses for which
Hall was indicted.
In cases where there is successive representation, we
have held that the defendant must show either (1) that the
attorney’s representation of the first client was “substan-
tially and particularly related to his later representation of
defendant,” or (2) that the attorney actually “learned
particular confidential information during the prior repre-
sentation of the witness that was relevant to defendant’s
later case.” Enoch, 70 F.3d at 1496-97. Here, Fleming’s
representation of Gignac enabled him to learn confidential
information pertaining directly to Hall’s case. Fleming’s
correspondence with the AUSA reveals his own concerns
about such a conflict.
Adverse Effect
A showing of a conflict does not automatically entitle a
petitioner to reversal. The Supreme Court in Mickens v.
Taylor, 535 U.S. 162 (2002), requires that a petitioner also
No. 02-2972 7
show adverse effect. However, we find no language in
Mickens that requires a petitioner to engage in speculation
pointing to an actual adverse effect before he has the ben-
efit of an evidentiary hearing. A petitioner demonstrates an
adverse effect by showing that there is a reasonable
likelihood that his counsel’s performance would have been
different had there been no conflict of interest. Stoia, 22
F.3d at 771. Pursuant to this requirement, a petitioner who
pleaded guilty upon the advice of an attorney with a conflict
of interest is not required to demonstrate that he would
have decided against pleading guilty had he been repre-
sented by a conflict-free attorney. Id. (explaining the
distinction between Strickland’s “but for” requirement and
Sullivan’s adverse impact standard). Nor does such a peti-
tioner need to establish that a conflict-free attorney would
have advised against pleading guilty. Thomas v. Foltz, 818
F.2d 476, 483 (6th Cir. 1987) (explaining that the proper
focus should be on whether the defense counsel’s conflict
affected his actions and the defendant’s decision to plead
guilty, not whether another attorney without conflict would
have made the same recommendation).
As we have held, a defendant can establish ineffective
assistance of counsel by showing that his attorney pres-
sured him to plead guilty because of the attorney’s conflict
of interest. Daniels v. United States, 54 F.3d 290, 295 (7th
Cir. 1995). Hall argues that Fleming improperly influenced
him to plead guilty and rushed him through that process in
order to avoid the conflict between his successive rep-
resentation of Gignac and then Hall. Hall has presented
record evidence, in the form of the correspondence between
Fleming and the AUSA, which supports this position. Hall
produced what an individual in his position could have
under these circumstances. It would have been practically
impossible for Hall to establish that Fleming would have
had trouble examining Gignac or that he would have failed
to turn the case over to a colleague. At an evidentiary
8 No. 02-2972
hearing, Hall can attempt to show adverse effect by estab-
lishing that Fleming improperly pressured Hall to accept
the plea in order to avoid proceeding to trial. This is
consistent with the requirement of Sullivan that a defen-
dant show “that conflict of interest actually affected the
adequacy of his representation.” Sullivan, 446 U.S. at 348.
If Hall can show at a hearing that counsel neglected
preparation for trial while pressuring Hall to take a plea
because of a conflicting interest, he will have established a
conflict that affected the adequacy of representation.
While Mickens contains dicta that can be read to cast
doubt on the application of the Sullivan framework in cases
of successive representation, see Mickens, 535 U.S. at 175-
76, the facts of this case are distinguishable. The conflict
here involved successive representations that were just ten
days apart and were also closely interrelated. It is unclear
whether Mickens would be applicable to such a situation. In
any case, Enoch, applying Sullivan to cases of successive
representation, remains controlling in this circuit and we
see no reason to ignore it here. Cf. Moss v. United States,
323 F.3d 445, 459-63 (6th Cir. 2003) (explaining the effect
of Mickens in cases of successive representation and
ultimately applying Sullivan because the likelihood of
prejudice under the circumstances exceeded that of a
“traditional” successive representation).
In Rosenwald v. United States, cited in the dissent, we
stated that the fact that Rosenwald did not go to trial did
not undermine his allegations of prejudice. 898 F.2d 585,
587 (7th Cir. 1990). We noted that even if the attorney took
steps in advance of trial to avoid having to cross-examine a
witness, the client was nonetheless the victim of his attor-
ney’s divided loyalties. In that case, as in this one, the
record did not conclusively establish that his attorney’s
representation was unaffected by his conflict of interest and
we remanded for an evidentiary hearing.
No. 02-2972 9
In addition, Rosenwald was a party to a civil case. We
stated, “The pragmatic pressure on counsel in cases such as
these is purely financial—the lawyer does not want to lose
a client whether that client is seeking advice on civil or
criminal matters.” Id. We mentioned the attorney’s fi-
nancial interest to illustrate that the attorney’s conflict in
a civil case does not lessen the ethical quagmire merely
because it does not possess the “seriousness” of a criminal
proceeding. We said, “the ethical dilemma is also the
same—the attorney must still guard secrets and confidences
and must seek to promote the client’s interests whether the
client is being represented in a civil or a criminal matter.”
Id.; See ABA Model Code of Professional Responsibility
Conduct Rule 1.6(a) (confidentiality), 1.7(b) (conflict of
interest). Rosenwald does not stand for the notion that an
attorney’s interest is only financial nor does it suggest that
the petitioner must show exactly what his attorney’s
motivation was when the attorney proceeded despite the
conflict. More importantly, Rosenwald drives home the
point that secrets between an attorney and his client are
sacred (as were those between Fleming and Gignac) and
that a conflict of interest can taint an attorney’s decisions
before, during and after trial.
Also the dissent states that Hall has not shown adverse
effect. We believe Hall has put forth record evidence to
show adverse effect. He has certainly put forth all someone
in his position could without the benefit of an evidentiary
hearing. The facts alleged are enough to warrant an evi-
dentiary hearing; they show that Fleming was laboring
under an actual conflict of interest and may have induced
Hall to plead guilty in an effort to avoid the conflict. Hall
was unaware of the conflict and he was entitled to have all
the relevant information his attorney had in which to assist
in his own defense. This includes both possible information
Fleming had with regard to Gignac as well as the knowl-
edge of the conflict itself.
10 No. 02-2972
Under Sullivan, Hall need not show prejudice if he can
show an actual conflict existed that had an adverse effect on
his representation. We think, given a chance, that Hall may
uncover evidence at a hearing that would show an adverse
effect. Such a hearing may include testimony from Fleming,
the AUSA, Hall himself, etc.
This does not ignore the holding in Mickens; if Hall can
prove at a hearing that Fleming’s conflict adversely affected
his representation then Mickens says he is entitled to relief.
Stoia and Enoch are not disturbed by the holding in
Mickens. In Stoia we held that a petitioner shows adverse
effect by showing there is a reasonable likelihood that the
attorney would have acted differently without a conflict.
Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994). In
that case, after an evidentiary hearing, we denied relief
because the adverse effect was not shown. If at the hearing
it is found that Hall cannot show adverse effect, then he
must proceed under the ordinary Stickland standard of
prejudice where he must show that but for counsel’s errors,
the outcome of the proceeding would have been different.
Hall is entitled to an evidentiary hearing to determine
whether there was an actual conflict of interest that
produced an adverse effect.
We REVERSE and REMAND to the district court for that
purpose.
EASTERBROOK, Circuit Judge, dissenting. Kevin Hall
pleaded guilty to a drug conspiracy. Now he wants collat-
eral relief on the ground that his lawyer formerly repre-
sented Anthony Gignac, who might have been called as a
witness had a trial occurred, and therefore could not rep-
resent him adequately. The conclusion that these events
No. 02-2972 11
call into question the validity of the plea is incompatible
with Mickens v. Taylor, 535 U.S. 162 (2002), and would be
hard to justify even under pre-Mickens decisions.
After Hall was indicted, the Federal Defender’s office
for the Southern District of Illinois assigned Lawrence
Fleming to represent him. Fleming previously had fur-
nished legal assistance to Gignac, and given the posture of
these proceedings I must assume that Gignac might have
been a witness had a trial been held—though the United
States Attorney denies that Gignac would have been called,
and he should know. (The prosecutor says that Gignac
knows nothing material to the charge against Hall.) Hall’s
theory is that Fleming strong-armed him to plead guilty in
order to avoid the problem that would ensue if Gignac took
the stand. This is implausible on its own terms. Why should
Fleming have cared? The Federal Defender in the Southern
District has five other lawyers on the staff. If the case had
gone to trial, and the prosecutor had shown any inclination
to call Gignac, Fleming could have turned the representa-
tion over to one of his colleagues. Hall proceeds as if
Fleming had received a hefty fee that he feared having to
return if required to withdraw. See Rosenwald v. United
States, 898 F.2d 585, 587 (7th Cir. 1990) (“The pragmatic
pressure on counsel in cases such as these is purely finan-
cial; the lawyer does not want to lose a client.”). Yet Flem-
ing, as a public employee, had no financial stake and thus
no reason other than his client’s best interests to urge Hall
to plead guilty.
Hall received a sentence of 37 months’ imprisonment, the
bottom of the guideline range (itself reduced by the accep-
tance of responsibility that Hall now wants to repudiate).
Five defendants were charged in the indictment. The
others—all represented by conflict-free counsel—likewise
pleaded guilty. Two of these four entered pleas in advance
of Hall’s and were available to testify against him; the
remaining two pleaded guilty at the same time Hall did. If
12 No. 02-2972
the four defendants with non-conflicted counsel had gone to
trial (better, had gone to trial and won), while only Hall had
capitulated, one might see a point; but given what actually
happened Hall’s plea is best seen as a good deal in light of
mounting evidence.†
My colleagues say, however, that a conflict of interest not
only excuses any need to show prejudice to the defense—in
other words, a “reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different”, Strickland v. Washington, 466
U.S. 668, 694 (1984); see also Woodford v. Visciotti, 537 U.S.
19 (2002)—but also eliminates any need to establish
adverse effect. They rely on Enoch v. Gramley, 70 F.3d 1490
(7th Cir. 1995), and Stoia v. United States, 22 F.3d 766 (7th
Cir. 1994), which read Cuyler v. Sullivan, 446 U.S. 335
(1980), to require collateral relief whenever counsel had a
conflict of interest that created a potential for an effect on
the conduct of the defense.
Mickens rejects that understanding of Sullivan and
its predecessor Holloway v. Arkansas, 435 U.S. 475 (1978).
The Court concluded in Mickens that those decisions deal
†
My colleagues quote from a letter that Fleming wrote to the
prosecutor suggesting that it was going to be difficult to convince
Hall to plead guilty and that it would require “a continuing sales
job”. I do not see how this tends to establish any deficiency in
Fleming’s work. A common negotiating tactic is for an agent to
assert that the principal is tough and ready to disdain any ordi-
nary offer. Fleming used this tactic when noting that Hall was
already in prison and not likely to accept anything but the best
deal he could get. Anyone who has purchased a car knows that the
salesman always confers with his boss and says something like,
“I’ll try to convince my boss to accept this, but you’re getting a
pretty good deal and he probably won’t be happy with me.”
Fleming adopted the same approach, which suggests that he was
trying to extract the best possible deal for Hall.
No. 02-2972 13
with situations in which the trial judge should have in-
quired into the conflict (as when one lawyer represents
two defendants with inconsistent positions) or the judge
rebuffs a protest by a lawyer assigned to represent multiple
defendants. When no inquiry was required at trial, Mickens
holds, then unless the petitioner establishes an adverse
effect from the conflict no collateral relief is appropriate.
What my colleagues have to say about Mickens is this:
A showing of a conflict does not automatically entitle a
petitioner to reversal. The Supreme Court in Mickens v.
Taylor, 535 U.S. 162 (2002), requires that a petitioner
also show adverse effect. However, we find no language
in Mickens that requires a petitioner to engage in
speculation pointing to an actual adverse effect. A
petitioner demonstrates an adverse effect by showing
that there is a reasonable likelihood that his counsel’s
performance would have been different had there been
no conflict of interest. Stoia, 22 F.3d at 771.
Slip op. 7 (emphasis in original). By saying that the need to
show adverse effect does not entail a need to show “actual
adverse effect”—and adding that a “reasonable likelihood”
of any effect on counsel’s performance will do— my col-
leagues depart from Mickens. Any conflict creates (a
reasonable probability of) some effect. So does the fact that
the lawyer caught a cold. That is not a sensible understand-
ing of the sixth amendment’s right to the assistance of
counsel. Effects are ubiquitous. A koala’s choice among
tasty eucalyptus leaves in Australia could change the
weather in Alaska. (This is the butterfly effect of chaos
theory.) But we need to ask whether a given effect was both
likely and injurious. Only someone who lacks “counsel”
within the meaning of the Constitution is entitled to relief.
When the Justices spoke of “adverse effect” they meant a
real rather than a hypothetical adverse effect (or, as my
colleagues would have it, no adverse effect at all). That’s
what the debate was about.
14 No. 02-2972
The sixth circuit concluded that Mickens failed to show an
adverse effect from the conflict; the Supreme Court held
that this was enough to warrant the denial of the petition
when there had been no reason for the trial court to make
an inquiry at the time. The reason inquiry was unnecessary
was that counsel did not represent multiple defendants.
Instead he had represented Mickens’s victim. So there was
a potential for a problem if the trial led toward information
that counsel held in confidence from the former representa-
tion. But there was no reason for the judge to know this,
and when Mickens failed to establish a concrete adverse
effect he lost. Exactly the same may be said about Hall: the
representation was sequential, there was no occasion for the
judge to inquire, and so “adverse effect” must be shown.
Four Justices dissented. Two of them (Ginsburg and
Breyer) did so principally because Mickens was a capital
case, and they favor a special standard for such prosecu-
tions. Justice Souter stated in dissent that he supports the
“adverse effect” test for situations in which the trial judge
bears no fault, and his opinion contemplates a demonstra-
ble adverse effect. He wrote that “a defendant can fairly be
saddled with the characteristically difficult burden of
proving adverse effects of conflicted decisions after the fact
when the judicial system was not to blame in tolerating the
risk of conflict” (535 U.S. at 203)—and to say that a defen-
dant must prove something is to say that the adverse effect
must be realized (= actual) rather than potential. Only
Justice Stevens thought that conflict plus any effect on
performance should be enough. See 535 U.S. at 186-87. He
suggested, however, that proof of adverse effect should be
required when the trial judge lacked knowledge of the
conflict. Id. at 187 & n.12. Why should this circuit adhere
to a position that has the support of one Justice at best?
One more observation about “actual” adverse effect. Al-
though the phrase “actual adverse effect” does not appear
in Mickens, the word does appear in Sullivan (in a passage
No. 02-2972 15
quoted by the Mickens majority, 535 U.S. at 171). In
Sullivan the Court concluded that it would be enough to
prove that the conflict “actually affected the adequacy of
[the] representation”. 446 U.S. at 349-50. That showing
would suffice for dual-representation situations in lieu of
Strickland prejudice. In the seventh circuit, however, no
“actual” effect on counsel’s adequacy need be shown. My
colleagues require “a reasonable likelihood that . . . coun-
sel’s performance would have been different” but not that
this “difference” undermined the defense or had any other
adverse consequence. To equate “difference” with “adverse
effect” is to elevate pre-Mickens decisions of this circuit over
recent instructions from our superiors.
Part III of Mickens, 535 U.S. at 174-76, observes that
courts of appeals have extended Sullivan beyond simul-
taneous-representation cases to conflicts of all sorts. The
Justices remarked that they had followed this approach
arguendo in Mickens (a sequential-representation situa-
tion), and applied the “adverse effect” standard rather than
insisting on proof of “prejudice,” because the question
presented by the petition was so limited. But Mickens
shows that the Court is skeptical about this extension and
would welcome an opportunity to decide whether Holloway
and Sullivan apply beyond simultaneous-representation
situations. My colleagues call Part III of Mickens dictum,
and technically it is, but together with the rest of the
opinion it tells us that a majority of the Justices believe
that petitioners should be required to prove real adverse
effects if not Strickland “prejudice” in most conflict situa-
tions. Instead of fobbing Part III off as dicta to be ignored,
we should use the discussion to illuminate the rest of the
opinion. It shows that the Court’s references to “adverse
effect” must be taken seriously rather than dismissed be-
cause the Court did not prepend the word “actual.” It ill
behooves a court of appeals to say: “We see what you are
driving at, but until you use the magic word we shall do the
opposite.”
16 No. 02-2972
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-04