Dawan v. Lockhart, 93-3960

• Decision Date: 19 September 1994
• Docket Number: No. 93-3960,93-3960
• Citation: 31 F.3d 718
• Parties: Muhammed DAWAN, Appellant, v. A.L. LOCKHART, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 718

31 F.3d 718

Muhammed DAWAN, Appellant, v. A.L. LOCKHART, Appellee.

No. 93-3960.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1994.

Decided Aug. 9, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 19, 1994.

David C. Schoen, Fayetteville, AR, argued, for appellant.

Darnisa Evans Johnson, Little Rock, AR, argued (Winston Bryant and Darnisa Evans Johnson, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

This is Muhammed Dawan's second appeal to this Court following denial of his petition for habeas corpus. In 1989, Dawan was convicted in an Arkansas state court and sentenced as a habitual offender to thirty-three years in prison. He brought this habeas corpus action, challenging the validity of his conviction and sentence, on the ground that his trial counsel had been ineffective because of a conflict of interest. The District Court denied his petition because Dawan had not raised ineffectiveness in the state courts, and, therefore, the claim was procedurally barred. We reversed, holding, first, that cause existed for Dawan's failure to raise ineffective assistance of counsel in the state-court direct appeal and, second, that Dawan's claim also was not procedurally barred by his failure to raise the claim during state postconviction proceedings. Dawan v. Lockhart, 980 F.2d 470 (8th Cir.1992). We remanded to the District Court for consideration of the merits of Dawan's ineffective-assistance-of-counsel claim. The District Court appointed new counsel for Dawan, conducted an evidentiary hearing, and held that Dawan had failed to establish the merits of his claim. Dawan appeals to this Court, and we reverse.

I.

The facts relevant to this appeal are as follows. Dawan and a co-defendant, Ron Stout, were jointly charged with burglary and theft of property. Both men were represented by the same public defender. Stout pleaded guilty to the crimes and, in a sworn statement in court, implicated Dawan in the burglary. ¹ Dawan chose not to plead guilty and proceeded to trial. At the pre-trial omnibus hearing, Dawan moved for a change of counsel based on his lawyer's lack of time to prepare for the case. The lawyer told the trial court that he did have sufficient time to prepare, but mentioned that another possible basis for the motion was his prior representation of Stout. Dawan agreed with this assessment. However, counsel stated that he "saw no conflict due to the fact" that the prosecution did not intend to call Stout as a witness. Dawan disagreed, pointing out that Stout had "turned State evidence" against him. After confirming that neither side intended to call Stout, the trial court denied Dawan's motion.

At trial, however, Dawan's lawyer did call Ron Stout, who testified that Dawan was in no way involved in the perpetration of the crime. Dawan did not object. During direct examination, counsel chose not to ask Stout about his prior statements implicating Dawan. The prosecuting attorney, however, was not so reticent. On cross-examination, he did ask Stout about his prior sworn testimony and highlighted the fact that Dawan's counsel was the attorney who had represented Stout when the statement was made. Stout admitted that he had previously implicated Dawan, but, he said, he had lied under oath. On re-direct, with respect to the inconsistent statements, Dawan's lawyer asked Stout only one question: "But your testimony here today's true?" Stout answered in the affirmative.

Following remand of Dawan's first appeal to this Court, the District Court held an evidentiary hearing. There, Dawan testified that he had told his attorney that he was concerned about a conflict of interest and that he never intended to waive his objection to representation by the same lawyer who had represented Stout. He also testified that he was unaware that Stout would be called and stated that the trial court had told him new counsel would be appointed if Dawan believed his lawyer's representation to be inadequate. ² Counsel testified that Dawan knew from the beginning that he had represented Stout and that Dawan was fully aware of the ramifications of calling Stout to the stand in light of his prior implication of Dawan. Counsel also stated that Dawan had made the ultimate choice to call Stout and that his decision not to question Stout about his prior statements was a matter of trial strategy--the prosecution might miss the opportunity, and then the evidence would never come before the jury. Therefore, he decided not to "soften the blow," although he admitted that there was "not a very good" chance that the prosecutor would fail to seize the opening.

Counsel admitted during the hearing that he and his deputy had informed Stout that he might be committing perjury. Furthermore, he conceded that, had he questioned Stout about the prior inconsistent statement, his former client would have had to admit to perjury. Counsel testified, however, that this concern was not the reason for his failure to go into the prior statement on direct. He said he knew the jury would either believe Stout or it would not, and he stated that he did not feel in any way hampered by his prior representation of Stout. Finally, he said, because it was Dawan's decision to call Stout, he did not bring up the potential conflict of interest at trial. Counsel's deputy also testified that Stout had been warned that he could be charged with perjury and that Dawan had been aware, prior to trial, that Stout would be called as a witness.

The District Court found that the bases for Dawan's request for new counsel did not include conflict of interest; therefore, not only did Dawan not object properly to the representation, the court also was not put on notice of the conflict. It therefore required Dawan to demonstrate actual conflict and adverse effect under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Finding that Dawan had failed to make this showing, the District Court denied his petition.

II.

The Sixth Amendment right to counsel embraces the right to conflict-free counsel. If a court requires an attorney to represent two co-defendants whose interests are in conflict, the court has violated the defendants' right to the effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). Moreover, if the trial court either fails to make an investigation into the source of the conflict in light of a timely objection, or fails to do so when the court knows or reasonably should know that a conflict exists, reversal is automatic. Wood v. Georgia, 450 U.S. 261, 272 n. 18, 101 S.Ct....