475 F.3d 241 (4th Cir. 2007), 04-6092, United States v. Nicholson

Docket Nº:04-6092.
Citation:475 F.3d 241
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jack Lavelton NICHOLSON, Defendant-Appellant.
Case Date:February 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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475 F.3d 241 (4th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jack Lavelton NICHOLSON, Defendant-Appellant.

No. 04-6092.

United States Court of Appeals, Fourth Circuit.

February 2, 2007

Argued: September 20, 2006

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

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[Copyrighted Material Omitted]

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ARGUED:

Marvin David Miller, Alexandria, Virginia, for Appellant.

James Ashford Metcalfe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, 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 States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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.

KING, Circuit Judge:

Petitioner Jack Lavelton Nicholson, a federal inmate serving a sentence 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 Nicholson v. United States, No. 2:02cv793 (E.D. Va. October 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 interest during Nicholson's sentencing proceedings and presents the question of whether his sentence

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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 performance 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 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. November 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 proceedings, failed to request a downward departure based on Nicholson'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, Virginia, 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 eventually dropped and replaced by a single

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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 federal grand jury on March 23, 2001, and he was taken into federal custody 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 Nicholson'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 multiple 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 Portsmouth 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 representation continued over to the subsequent federal charge. According to Nicholson's affidavit, he explained to Babineau on several occasions 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 Nicholson 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 prosecution of Nicholson, Babineau received

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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 distribution, 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 proceedings, Babineau was representing and advising Nicholson on whether he should accept a proposed plea agreement from the Government on Nichsolson's federal indictment.4 Babineau never informed Nicholson that he was also representing Butts on state criminal charges, nor did Babineau seek Nicholson's consent to represent both clients during the same time frame. On May 1, 2001, the Government 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...

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