Ford v. Ford, 83-8387

• Decision Date: 02 January 1985
• Docket Number: No. 83-8387,83-8387
• Citation: 749 F.2d 681
• Parties: Horace Dwayne FORD, Petitioner-Appellant, v. John P. FORD, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 681

749 F.2d 681

Horace Dwayne FORD, Petitioner-Appellant, v. John P. FORD, Warden, Respondent-Appellee.

No. 83-8387.

United States Court of Appeals Eleventh Circuit.

Jan. 2, 1985.

Alice C. Stewart, Atlanta, Ga. (Court-appointed), for petitioner-appellant.

Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

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

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS ^*, District Judge.

DANIEL HOLCOMBE THOMAS, District Judge:

This appeal is by Horace Ford regarding his request for habeas corpus relief. The district court adopted the magistrate's report and denied relief. The petitioner now appeals questioning the effectiveness of his assistance of counsel and the voluntariness of his guilty plea.

FINDINGS OF FACT

Horace Dwayne Ford, together with Pearlie Mae Berry, and Horace's brother, Thomas Gary Ford, were indicted in State Court for armed robbery and murder on June 17, 1980. The Ford brothers jointly retained one attorney to represent both of them.

Throughout the time period before the case was to come to trial Horace unequivocally expressed a desire to go to trial. On the other hand, his brother Thomas wanted simply to plead guilty and request mercy by the court in the sentencing. Horace The State of Georgia was willing to enter into a plea agreement with the Ford brothers whereby the State would not seek the death penalty if both Horace and Thomas would plead guilty. The alternative to the death penalty offered by the State was two consecutive life sentences. However, if both of the defendant Ford brothers would not plead guilty then the State would proceed to trial insisting on the death penalty. Co-defendant Berry had separate counsel and had worked out a plea arrangement with the State.

contended that he was innocent and wanted that fact to be demonstrated to a jury.

Eventually Horace Ford pled guilty on October 6, 1980, at 4:00 P.M. after his case was called for trial at 9:00 A.M. on the same day. There was evidence that Horace's decision was influenced by his mother's insistence and by the fact that the State would waive the death penalty only if both brothers pled. Thus, fearing his brother would die for his failure to plead, Horace along with his brother Thomas, pled guilty on the day of trial.

As a result of his guilty plea, Horace Ford received one life sentence for murder and another life sentence for armed robbery. The two life sentences were to be served consecutively. Subsequently, Horace Ford sought habeas relief asserting that he received ineffective assistance of counsel and that his plea was not voluntarily made.

CONCLUSIONS OF LAW

In the present case since the same attorney represented two co-defendants; one defendant wanting to proceed to trial and the other defendant desiring to plead guilty, an obvious conflict of interest arose. Therefore, Horace Ford, the defendant who desired to go to trial but pled guilty sought habeas relief based upon the issue of the effectiveness of the assistance of counsel he received. Appellant Horace Ford contends that this dual representation with the resulting guilty pleas, coupled with other factors evidencing a conflict of interest violated Ford's Sixth Amendment right to counsel.

The United States Supreme Court has established a standard to aid in determining whether a defendant's Sixth Amendment rights are violated. The Court instructs that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). If actual conflict does exist then the defendant need not show prejudice. Id. 446 U.S. at 349-50, 100 S.Ct. at 1718-19. We have defined the term "actual conflict" in Westbrook v. Zant, 704 F.2d 1487 (11th Cir.1983). There we held that an actual conflict exists when petitioner shows that his trial counsel actively represented conflicting interests ...." Id. at 1499. In Westbrook we found an actual conflict where appointed counsel for a defendant in a capital case also represented the county in which defendant was tried in a lawsuit challenging the composition of the county's jury lists. Westbrook's appointed counsel could not bring a jury composition challenge on Westbrook's behalf because such a challenge would have been directed against another client (the county). A jury composition challenge would have been a plausible argument for Westbrook. Appointed counsel's inability to make such a challenge because of the conflict in interest "render[ed] meaningless the sixth amendment guarantee to effective representation." 704 F.2d at 1499.

Applying the above standards to the facts of this case, this court holds that an actual conflict of interest did exist here; consequently, Horace Ford was denied his Sixth Amendment right to effective assistance of counsel. The fact is undisputed that up until the day of trial, Horace Ford desired a jury trial while his brother and co-defendant Thomas Ford wished to plead guilty. Given this situation, it is obvious that the brothers' attorney was placed in a position of divided loyalties. The facts of this case...