Winkler v. Keane, 1642

• Citation: 7 F.3d 304
• Decision Date: 15 October 1993
• Docket Number: D,No. 1642,1642
• Parties: Richard WINKLER, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee. ocket 93-2164.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 304

7 F.3d 304

Richard WINKLER, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility Respondent-Appellee.

No. 1642, Docket 93-2164.

United States Court of Appeals Second Circuit.

Argued June 7, 1993.

Decided Oct. 15, 1993.

Diane E. Selker, Asst. Dist. Atty., White Plains, NY (Carl A. Vergari, Dist. Atty. of Westchester County, Richard E. Weill, Second Deputy Dist. Atty., of counsel), for respondent-appellee.

Robert N. Isseks, Goshen, NY (Alex Smith, Middletown, NY, of counsel), for petitioner-appellant.

Before: OAKES, WALKER and WOOD, Jr., ^* Circuit Judges.

WALKER, Circuit Judge:

Petitioner Richard Winkler appeals from a judgment of the United States District Court for the Southern District of New York (Gerard L. Goettel, Judge ), dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 812 F.Supp. 426 (S.D.N.Y.1993). The issue presented by this appeal is whether a contingency fee agreement between a criminal defendant and his attorney

creates a conflict of interest for the attorney resulting in a violation of the defendant's Sixth Amendment right to effective assistance of counsel.

BACKGROUND

In the early morning hours of August 2, 1980, after snorting cocaine and smoking marijuana, petitioner Winkler, his co-defendant, Merrill Williams, and Robert Gruber drove to Winkler's home. Williams and Winkler entered the house, where Williams shot and killed Winkler's father with a .22 caliber rifle. After Winkler and Williams returned to the car, Winkler told Gruber, "you don't know anything" and then asked Williams, "what do you want?". Williams indicated that he wanted $10,000, and Winkler replied, "You can have anything but my car." On October 24, 1980, Winkler and Williams were indicted for second degree murder and criminal possession of a weapon.

Winkler's family retained Robert A. Hufjay, Esq. to defend Winkler. Hufjay entered into a contingent fee arrangement with Winkler's mother, Lanie Sattler, and grandmother, Annie Winkler, subject to Winkler's signature, that provided in relevant part:

FIRST: The fee for legal representation shall be paid as follows:

(a) $2,000.00 on execution hereof, receipt of which is hereby acknowledged;

(b) $18,000.00 to be paid by ANNIE WINKLER from a bequest to be received from the Estate of Irving Winkler, at such time as said bequest is received.

SECOND: It is agreed that any disbursements for investigation or psychiatric examinations, etc., shall be in addition to the above fees.

* * * * * *

FOURTH: ANNIE WINKLER has been advised and understands that in the event that RICHARD WINKLER is convicted in Westchester County Court, that she would stand to inherit the entire estate of Irving Winkler....

* * * * * *

SIXTH: It is understood and agreed, subject to the approval of RICHARD WINKLER that in the event RICHARD WINKLER is acquitted or found not guilty by reason of insanity, or some other legal reasons, and inherits from the Estate of Irving Winkler, that RICHARD WINKLER shall pay, as additional legal fees, the sum of $15,000.000.

Hufjay visited Winkler at the Westchester County Jail and presented the retainer agreement to him for signature. Winkler crossed out the "$15,000" set forth in paragraph "SIXTH,"," inserted "$25,000" in its place, and signed the agreement. Hufjay represented Winkler throughout the trial in Westchester County Court which ended when the jury found him guilty of murder in the second degree in violation of § 125.25 of New York State Penal Law. On October 30, 1981, Winkler was sentenced to 25 years to life imprisonment, which he is currently serving.

After his conviction and sentencing, Winkler moved collaterally in Westchester County to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10, on the ground the contingency fee agreement he entered into with Hufjay denied him his Sixth Amendment right to effective assistance of counsel.

The motion was denied without a hearing, People v. Winkler, Indictment No. 80-1085, slip. op. at 8 (Westchester County Ct. July 13, 1984). The court held that it was unnecessary to pass upon the legality of the agreement since Winkler received effective assistance of counsel. Id. at 4, 7-8. The Appellate Division, Second Department, reversed and vacated Winkler's conviction, holding that the contingency fee agreement in this case gave rise to a per se Sixth Amendment violation. People v. Winkler, 128 A.D.2d 153, 515 N.Y.S.2d 488 (2d Dep't 1987).

The New York Court of Appeals reversed. The court concluded that a denial of effective assistance of counsel occurs only if the defendant can establish that "a contingent fee agreement ... affected the manner in which his attorney conducted the defense prejudicially to the defendant." People v. Winkler, 71 N.Y.2d 592, 597, 528 N.Y.S.2d 360, 362-63, 523 N.E.2d 485, 487 (1988). On remand, the Appellate Division again vacated the conviction, on the ground that Winkler had satisfied his burden of showing that the contingency In July 1990, after the hearing, the County Court found that "there is no reason to believe [trial counsel's] representation of the defendant would have been any different if a proper fee arrangement had been utilized." People v. Winkler, Indictment No. 1085-80, slip op. at 16 (July 20, 1990). Accordingly, the court found that Winkler failed to demonstrate that his Sixth Amendment rights were violated. This decision was affirmed by the Appellate Division, 179 A.D.2d 711, 578 N.Y.S.2d 582 (2d Dep't 1992), and leave to appeal to the Court of Appeals was denied, 80 N.Y.2d 840, 587 N.Y.S.2d 924, 600 N.E.2d 651 (1992).

                fee agreement had a prejudicial impact on counsel's representation.  People v. Winkler, 144 A.D.2d 404, 533 N.Y.S.2d 913 (2d Dep't 1988).   The Court of Appeals again reversed, and ordered the Appellate Division to remand the case to the County Court to hold a hearing.  People v. Winkler, 74 N.Y.2d 704, 706, 543 N.Y.S.2d 380, 381, 541 N.E.2d 409, 410 (1989)
                

On August 4, 1992, Winkler filed the instant petition pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of New York (Goettel, J.). In denying the petition without a hearing, the district court held that the existence of a contingency fee agreement in a criminal case does not amount to a per se violation of Winkler's Sixth Amendment right to counsel as set forth by Solina v. United States, 709 F.2d 160 (2d Cir.1983) (Friendly, J.), and affirmed the state court's findings that counsel's representation of Winkler was not adversely affected by the contingency fee arrangement. 812 F.Supp. 426, 431 (S.D.N.Y.1993).

The district court issued a certificate of probable cause and this appeal followed.

DISCUSSION

Winkler argues that his counsel had an actual conflict of interest giving rise to a per se violation of his Sixth Amendment right to effective assistance of counsel, in accordance with our decision in Solina, and, alternatively, that the actual conflict adversely affected his counsel's representation. While we agree that the contingency arrangement at issue in this case created an actual conflict of interest, we hold that it did not constitute a per se violation of Winkler's Sixth Amendment rights. Since there is no basis for disturbing the state court's finding that Winkler was not adversely affected by his counsel's representation, we affirm the judgment of the district court denying the petition.

I. Defense Counsel's Conflict of Interest

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), if a defendant establishes that her attorney had a potential conflict of interest, in order to prove that the conflict resulted in a violation of her Sixth Amendment right to effective assistance of counsel, she must demonstrate prejudice. However, prejudice is presumed when a defendant establishes that her attorney had an actual conflict of interest that adversely affected the attorney's performance. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); United States v. Jones, 900 F.2d 512, 519 (2d Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990).

An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests "diverge with respect to a material factual or legal issue or to a course of action." Cuyler, 446 U.S. at 356 n. 3, 100 S.Ct. at 1722 n. 3; see, e.g., United States v. McLain, 823 F.2d 1457, 1463-64 (11th Cir.1987) (actual conflict when counsel, unbeknownst to defendant, had been under investigation for bribery); United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir.1986) (actual conflict between lawyer and client when pursuit of client's interests would lead to evidence of attorney's malpractice), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987).

Winkler argues that the contingency fee created an actual conflict of interest for trial counsel because Winkler's interests in effective representation were pitted against trial counsel's monetary interest. We agree. The contingency fee agreement in this case provided trial counsel with an extra $25,000 only if Winkler was acquitted or otherwise not found guilty. Thus, trial counsel had a The Government argues that following Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 633 n. 10, 109 S.Ct. 2646, 2656 n. 10, 105 L.Ed.2d 528 (1989), the Strickland prejudice standard, and not Cuyler's "adverse effect" standard, applies to contingency fee cases. The Government misreads the case. In Caplin & Drysdale, the issue was whether the federal forfeiture statute violates criminal defendants' Sixth Amendment rights. The petitioner in that case argued, inter alia, that the forfeiture statute was unconstitutional because it might cause a lawyer representing a person facing asset forfeiture to accept a plea agreement contrary to the...