441 F.3d 297 (4th Cir. 2006), 05-10, United States v. Stitt

Docket Nº:05-10, 05-11.
Citation:441 F.3d 297
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.
Case Date:March 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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441 F.3d 297 (4th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant.

United States of America, Plaintiff-Appellant,

v.

Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.

Nos. 05-10, 05-11.

United States Court of Appeals, Fourth Circuit.

March 24, 2006

Argued Jan. 31, 2006.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CR-98-47; CA-03-356-2)

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COUNSEL:

Amy Leigh Austin, Assistant Federal Public Defender, Gerald Thomas Zerkin, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Richard Thomas Stitt.

Thomas Ernest Booth, United States Department of Justice, Criminal Division, Washington, D.C., for the United States.

ON BRIEF:

Frank W. Dunham, Jr., Federal Public Defender, Alexandria, Virginia; Jeffrey L. Stredler, Williams Mullen, Norfolk, Virginia, for Richard Thomas Stitt.

Paul J. McNulty, United States Attorney, Howard J. Zlotnik, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the United States.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge

After Richard Thomas Stitt had exhausted all appeals of his convictions and sentence for three capital murders, he filed this petition for habeas relief. The district court denied Stitt's challenges to his conviction. The court concluded, however, that Stitt's counsel labored under an actual conflict of interest that adversely affected his representation of Stitt during the penalty phase of Stitt's trial. For this reason the district court vacated Stitt's sentence. The Government appeals that ruling. We also granted Stitt a certificate of appealability on the question of whether an actual conflict of interest adversely affected counsel's representation during the guilt phase. For the reasons that follow, we affirm the district court in all respects.

I.

In 1998, a jury convicted Stitt of three counts of murder during a continuing criminal enterprise and numerous federal drug and firearms offenses. Following a penalty phase hearing, the jury found the required statutory aggravating factors and unanimously voted to impose the death penalty for the three murder counts. We

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affirmed Stitt's convictions and capital sentence, and the Supreme Court denied his petition for certiorari. See United States v. Stitt, 250 F.3d 878, 900 (4th Cir. 2001), cert. denied, 535 U.S. 1074 (2002).

Stitt then sought habeas relief pursuant to 28 U.S.C. § 2255 (2000). He filed numerous affidavits in support of this petition. After holding two evidentiary hearings, the district court rejected all of Stitt's habeas claims save one. The court concluded that Stitt's lead trial counsel, Norman Malinski, labored under an actual conflict of interest that adversely affected his representation of Stitt during the penalty phase of Stitt's trial. See Stitt v. United States, 369 F.Supp.2d 679, 695 (E.D. Va. 2005). Specifically, the court found that Malinski, in order to protect his personal interests, failed to ask the court to appoint an expert qualified to testify about Stitt's propensity for future dangerousness, a request that the court likely would have granted; instead Malinski hired a less costly but much weaker "expert" whose only knowledge of federal prisons came from viewing a television program. Id. for this reason, the court vacated Stitt's sentence.

In reaching this conclusion, the district judge, who had also presided at Stitt's trial, relied not only on his own recollection of the trial and assessment of Malinski, but also on the many affidavits submitted by Stitt and the habeas testimony of several witnesses, including Malinski. The district judge made extensive factual findings in support of its conclusion, which the Government does not contend are in any way erroneous. We summarize these findings below.

The court initially noted that Stitt hired Malinski, a Florida lawyer who had represented Stitt in the past, as his principal counsel. Franklin Swartz, a Virginia lawyer, served as local counsel. Id. at 683. The court found that it was "not clear from the record exactly what were the sources of funds used to pay for [Stitt's] defense," nor even the precise amount of the fees paid. Id. at 691. During the course of Stitt's trial the prosecutor maintained that Malinski had received $500,000 in drug money to represent Stitt. Id. the district court conducted a short hearing on the matter in camera but did not pursue the matter further at trial. See id.

At the habeas hearings, however, in assessing Stitt's challenges, the court attempted to determine the particulars of Malinski's fee arrangement, including the source and amount of Malinski's fees. Malinski testified that he had little recall of these matters. He was only clear that he and Swartz were to receive flat fees, with any costs for experts to be paid by Stitt's family "when a particular expense arose." Id. at 692. After repeated questioning by the court, Malinski guessed that he received a total flat fee of between $75,000 and $100,000. Id. at 691. Kenneth "Boobie" Williams stated in a sworn affidavit that he paid Malinski over $100,000 through third parties to represent Stitt. Id. similarly, Maurica Stitt Johnson, Stitt's aunt, testified that she was an intermediary who collected money for Malinski from another friend of Stitt's in Florida, Robin Jones. Id. notwithstanding this evidence, Malinski insisted that he did not remember anything more about his fees; specifically, he did not "recall who paid him" on Stitt's behalf or whether Stitt's family had been the only ones who had made the payments. Id. at 692. He did acknowledge that "one payment had to be rejected because the source of funds could not be verified." Id. noting that "Malinski could not even tell the court whether he maintained any records as to what he was paid or what his expenses were," the district

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court expressly found Malinski "evasive and not credible in answering questions about the source of the funds, his expenditures and his record-keeping." Id.

Stitt argued that the Government's accusation that Malinski received over $500,000 in drug money made Malinski eager to avoid scrutiny of his fee. Requesting a court-appointed expert would have required the court to inquire into Stitt's resources and Malinski's fee; Stitt contended that Malinski's desire to protect his personal interests prevented him from seeking the court's assistance to...

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