Danner v. U.S., 86-7127

• Decision Date: 06 July 1987
• Docket Number: No. 86-7127,86-7127
• Citation: 820 F.2d 1166
• Parties: Kim Curtis DANNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1166

820 F.2d 1166

Kim Curtis DANNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 86-7127.

United States Court of Appeals, Eleventh Circuit.

July 6, 1987.

James L. O'Kelley, Birmingham, Ala., for petitioner-appellant.

Frank W. Donaldson, U.S. Atty., Bill L. Barnett, Robert J. McLean, John E. Ott, Asst. U.S. Attys., Birmingham, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before HILL and JOHNSON, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

HILL, Circuit Judge:

Appellant Kim Curtis Danner was convicted in federal district court on four drug-related counts involving violations of 21 U.S.C. Secs. 841(a)(1) and 846, and 18 U.S.C. Sec. 2. After his convictions were affirmed on appeal, Danner filed this habeas corpus petition under 28 U.S.C. Sec. 2255, alleging that his trial counsel was ineffective because he labored under an actual conflict of interest. The magistrate conducted an evidentiary hearing on Danner's claim, and recommended that relief be denied. After again referring the matter to the magistrate to make certain additional credibility findings, the district court adopted the magistrate's recommendation and denied the writ. We agree that Danner received

adequate representation by his trial counsel and therefore affirm.

FACTS

This case presents a somewhat bizarre and convoluted series of financial transactions leading to Danner's ultimate representation at trial; therefore, we will delineate the facts in some detail. Danner and codefendant William Pruitt were arrested and jailed in Huntsville, Alabama on the afternoon of April 7, 1984. Danner and Pruitt were contacted either later that evening or the following morning by Mark McDaniel, an attorney who had represented both individuals in the past. This initial contact by McDaniel was apparently unsolicited. Danner indicated that he wanted McDaniel to represented him, and McDaniel agreed to do so for a fee of $25,000. McDaniel informed Danner at this time that he would be representing Pruitt as well, but for a much higher fee.

Danner initially told McDaniel that he could not afford a fee of $25,000, but Pruitt, who also was present during these discussions, indicated that he would pay a portion of Danner's legal fees on the condition that Danner use McDaniel as his counsel. Danner finally agreed on the fee and executed a written retainer agreement, which provided that Danner would pay McDaniel's firm the sum of $25,000 for the purpose of "assuring our availability in your matter." Danner claims that McDaniel assured him that this fee would include representation through trial and "all the way to the Supreme Court, if necessary." Danner received a total of $10,000 from Pruitt, which he paid directly to McDaniel. Danner sold his car and boat to raise additional money for McDaniel's fee, and ultimately made payments to McDaniel totaling $21,000.

Several weeks later, McDaniel determined that there existed the possibility of conflicting interests between Danner and Pruitt, and he presented Danner with an addendum to the retainer agreement. This addendum pointed out that McDaniel was employed to represent both Danner and his codefendants, William and Bobbie Jean Pruitt. It further stated that because of their potentially conflicting interests, McDaniel deemed it advisable to refer each party to separate counsel for trial of the case, and that McDaniel's representation would be limited to pretrial motions and appeals. The addendum also provided that McDaniel would not involve himself with the trial tactics, trial testimony, witnesses, or other evidentiary matters of any party. ¹ After discussing the matter with McDaniel, Danner signed this addendum.

Shortly thereafter, McDaniel directed Danner to contact Steve Salter, a Birmingham criminal defense attorney, and arranged for David Johnson, a Birmingham attorney and law professor, to represent Pruitt. Salter met with Danner but could not accept his case because of a pending commitment. Several days later, McDaniel referred Danner to Tommy Nail, another Birmingham defense attorney, who agreed to accept the case for a fee of $5,000. Nail never discussed payment of his fee with Danner; he received a check for the full amount directly from the account of David Johnson. Johnson presumably received this money from the retainer paid by Danner to McDaniel. Although Nail's total fee was only $5,000, McDaniel never returned Nail had several discussions with Danner concerning trial strategy and the possibility of a negotiated plea, but Nail was unable to work out a satisfactory plea agreement with the government. Nail also filed a motion for severance, which was denied by the district court. Nail and Johnson conducted a cooperative defense effort in preparing and trying the case, including exchanging information on witnesses. Danner indicated during pretrial preparations that he desired to testify in his own defense at trial, but Nail strongly recommended against such a move for tactical reasons. Danner also discussed with Nail his desire to testify at various times during the trial. Late in the trial, however, government attorneys informed Nail that should Danner take the stand, they would offer rebuttal witnesses who would testify to a shooting and assault allegedly perpetrated by Danner related to the drug charges. The government attorneys also informed Nail that they would cross-examine Danner regarding drug records found at Pruitt's house which contained aliases used by Danner. After being confronted with the presence of the two rebuttal witnesses at the courthouse on the last day of trial, Danner declined to take the stand. Danner was convicted on four of the ten counts originally charged, and was sentenced to 15 years imprisonment and a $25,000 fine.

any part of the balance of Danner's $21,000 retainer. ²

DISCUSSION

Danner argues in this appeal that the sequence of transactions involving his codefendant Pruitt and the respective attorneys establishes that his counsel, Tommy Nail, was laboring under an actual conflict of interest at trial. He claims that Pruitt and McDaniel conspired to compromise his interests in order to provide Pruitt with a better defense, and that Nail's loyalties were divided because his fee for representing Danner was paid by Johnson, who was Pruitt's counsel. Danner asserts that this conflict of interest influenced Nail's recommendation that Danner not testify in his own defense, because his testimony allegedly would have been adverse to Pruitt's case.

The proper standard for reviewing a claim of ineffective assistance of counsel based upon an alleged conflict of interest was articulated by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). To establish a viable sixth amendment claim, the petitioner "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719. A petitioner who shows a conflict which actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Id. In other words, in the case of an actual conflict, prejudice is presumed. Barham v. United States, 724 F.2d 1529, 1531 (11th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984); Baty v. Balkcom, 661 F.2d 391, 396 (5th Cir. Unit B 1981), ³ cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). The Supreme Court has cautioned, however, that the mere possibility of a conflict does not rise to the level of a sixth amendment violation, and therefore "is insufficient to impugn a criminal conviction." Culyer, 446 U.S. at 350, 100 S.Ct. at 1719. To demonstrate...