Duncan v. State of Ala., 88-7708

• Decision Date: 24 August 1989
• Docket Number: No. 88-7708,88-7708
• Citation: 881 F.2d 1013
• Parties: Lloyd DUNCAN, Petitioner-Appellant, v. STATE OF ALABAMA; Freddie Smith, Director of the Department of Corrections for the State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1013

881 F.2d 1013

Lloyd DUNCAN, Petitioner-Appellant, v. STATE OF ALABAMA; Freddie Smith, Director of the Department of Corrections for the State of Alabama Respondents-Appellees.

No. 88-7708.

United States Court of Appeals Eleventh Circuit.

Aug. 24, 1989.

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

Don Siegelman, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., James B. Prude, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.

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

Before CLARK and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CLARK, Circuit Judge:

Lloyd Duncan, an Alabama prisoner, appeals from the district court's denial of his petition for writ of habeas corpus. Duncan argues that his constitutional rights were violated because his trial counsel were laboring under a conflict of interest. After the district court initially denied the petition, we remanded for an evidentiary hearing. After a hearing, the district court again denied the petition finding that there was no actual conflict of interest and that even if a conflict existed, Duncan waived his right to conflict-free counsel. Duncan appealed and we affirm finding that he knowingly and intelligently waived his right to conflict-free counsel.

I. FACTS

Duncan was convicted of the murder of Eva and Eric Sims. In 1977, Duncan was convicted in Marshall County Circuit Court of raping Eva Sims and was sentenced to ten years imprisonment. He was paroled in January 1980 after serving less than two years. On February 13, 1980, about a month after his release on parole, Duncan went to the mobile home in which Eva Sims lived with her two sons, Neal aged nine and Eric aged four. After watching Sims and a visitor through the window, Duncan went to his home and retrieved a loaded .22 caliber rifle. He returned to Sims' home, hid his car, and cut the telephone lines. He then broke into the mobile home through a window and began shooting his rifle, killing Sims and Eric; Neal was severely injured but recovered. At some point, Sims shot and wounded Duncan.

After emptying his rifle, Duncan turned on the lights in the mobile home and realized that he had shot the two boys. He wrapped Neal in a quilt and told him he would go get help. Duncan then drove back to his home and told his parents to call for an ambulance to be sent to the Sims' home. He then turned himself into the police. Duncan freely confessed but maintained that he had not intended to kill Sims, but rather that he wanted to scare her. He also vehemently denied knowing that the two boys were in the mobile home. ¹ These statements were admitted into evidence at trial.

Duncan was arrested on February 14, 1980. He was subsequently indicted and arraigned on three separate sets of indictments. ² The final indictment on which he was tried alleged two counts: Count I charged Duncan with capital murder as defined under Alabama Code Sec. 13A-5-31(a)(4) for intentionally killing Eva Sims during a nighttime burglary and Count II charged him with capital murder under Alabama Code Sec. 13A-5-31(a)(10) for intentionally killing Eva and Eric Sims. Duncan was convicted on both counts. After a sentencing hearing, the jury refused to impose the death penalty. The trial judge therefore imposed two consecutive terms of life imprisonment without possibility of parole. On appeal, the Alabama Supreme Court affirmed the conviction on Count I of the indictment but vacated the conviction and sentence under Count II of the indictment. Duncan v. State, 436 So.2d 883, 905 (Ala.Crim.App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984).

On May 13, 1980, the trial judge appointed T.J. Carnes and William Gullahorn to represent Duncan. Both attorneys made the trial court aware that they had potential conflicts of interest in representing the defendant. Carnes informed the court that his son and law partner had been representing Eva Sims at the time of her death in her efforts to stop Duncan from harassing her. Gullahorn informed the court that he had previously represented the District Attorney who was trying the case in a divorce action and that he might advise him in relation to the possibility of future litigation. After discussing the conflicts with his attorneys, the defendant was unable to make a decision about whether to accept Carnes and Gullahorn as his counsel. The trial judge therefore allowed him to think about it overnight and apparently asked another lawyer, Marion Lusk, to confer with Duncan. ³ The next day, Duncan accepted the appointment of counsel.

Because Duncan was reindicted and rearraigned two more times, the conflict issue was raised at each arraignment. ⁴ At the arraignment on the second indictment, the matter was summarily raised but counsel were reappointed. Finally, at the third arraignment on February 3, 1981, the district attorney requested that the court inquire into the conflict issue. The attorneys reiterated the facts underlying their conflicts. Carnes stated that he was not privy to any confidential information from the deceased. He also informed the court that he could think of nothing he would refrain from doing on behalf of Duncan because of his firm's prior representation of the victim. Gullahorn agreed that he did not foresee his relationship with the district attorney impeding his defense of Duncan. The trial judge then requested another attorney, W.D. Wilkes, to discuss the conflict issue with Duncan. After a brief recess, the trial judge questioned both Wilkes and Duncan and determined that the defendant accepted the appointment of Carnes and Gullahorn.

Duncan raised the issue of the conflict of interest on direct appeal after his conviction. The Alabama Court of Criminal Appeals held that "[t]here can be no question that both Mr. Carnes and Mr. Gullahorn had actual conflicts of interest, which, without a waiver by appellant, would have prevented constitutionally adequate representation." 436 So.2d at 897. The Court went on to find, however, that Duncan had made a valid waiver of his right to conflict-free counsel under the standards of Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir.1975), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979).

Duncan then filed a petition for writ of habeas corpus in the federal district court. The magistrate recommended granting the writ because Gullahorn and Carnes had actual conflicts of interest and Duncan had not validly waived his right to conflict-free representation. After a de novo review the district court rejected the magistrate's recommendation and held that Duncan had validly waived his right to conflict-free counsel and that even if the waiver was invalid, he was not entitled to relief because there was no showing that the conflicts adversely affected the attorneys' performance.

This court, in an unpublished opinion, found the record insufficient to determine whether the conflicts adversely affected the attorneys' performance or whether Duncan validly waived his right to conflict-free counsel. On remand, the magistrate conducted an evidentiary hearing at which Carnes, Gullahorn, Duncan and Wilkes testified. Gullahorn testified that he failed to press the district attorney about a misunderstanding of a proposed plea agreement because of his relationship with the district attorney. Carnes also testified that the conflicts made Duncan suspicious and distrustful of them. Duncan then testified that he was never fully informed of the conflicts under which his attorneys were laboring and the disadvantages to representation by these attorneys. This testimony was contradicted by the testimony of Wilkes who stated that he explained the conflicts to the defendant, the consequences of these potential conflicts, and that he had a right to other appointed attorneys. After hearing this testimony, the magistrate determined that the attorneys did not have actual conflicts that adversely affected their representation and alternatively that Duncan had validly waived his right to conflict-free counsel. The district court adopted the magistrate's report and recommendation and denied the petition.

On appeal, Duncan argues that his attorneys did have an actual conflict which adversely affected their performance. He argues that the evidence at the hearing established that the conflict affected counsel's representation in two ways: first, counsel refrained from pursuing the District Attorney's misrepresentation of the plea agreement and second, Duncan never trusted his attorneys because of the conflict and therefore never fully cooperated with them. Finally, he argues that the magistrate erred in finding that he validly waived his right to conflict-free counsel.

II. DISCUSSION

The sixth amendment assures a criminal defendant the right to effective assistance of counsel which includes the right to counsel who is unimpaired by conflicting loyalties. The Supreme Court has acknowledged that "counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest," which is "perhaps the most basic of counsel's duties." Strickland v. Washington, 466 U.S. 668, 690, 692, 104 S.Ct. 2052, 2065, 2067, 80 L.Ed.2d 674 y (1984). The Court has recognized that the harm caused by representing conflicting interests is difficult to measure because the harm "is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Therefore when an attorney labors under an actual conflict of interest, the defendant need not show prejudice in order to obtain a reversal of his conviction. Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 3120, 97 L.Ed.2d 638 (1987...