Hall v. U.S.

• Citation: 371 F.3d 969
• Decision Date: 15 June 2004
• Docket Number: No. 02-2972.,02-2972.
• Parties: Kevin T. HALL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

371 F.3d 969

Kevin T. HALL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-2972.

United States Court of Appeals, Seventh Circuit.

Argued October 24, 2003.

Decided June 15, 2004.

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David Grossman (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellant.

Richard H. Lloyd (argued), Office of the United States Attorney, Fairview Heights, IL, for Respondent-Appellee.

Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

On August 20, 1999, Kevin T. Hall was charged in Count One of a three-count indictment for conspiracy to distribute marijuana and possession with intent to distribute the drug in violation of 21 U.S.C. §§ 841(a)(1), 846. Hall pleaded guilty on November 22, 1999, and on February 7, 2000, the district court sentenced Hall to 37 months of imprisonment, 2 years of supervised release, and a special assessment of $100. On February 9, 2001, Hall filed a motion to vacate or set aside his conviction, pursuant to 28 U.S.C. § 2255. The district court denied the motion. After timely filing a notice of appeal, Hall filed a motion to proceed in forma pauperis on July 1, 2002. The district court construed the motion as including a request for a certificate of appealability, and on July 23, 2002, granted Hall's motion to proceed in forma pauperis, but denied certificate of appealability.

On December 12, 2002, we granted a certificate of appealability, "as to whether counsel rendered ineffective assistance in violation of the Sixth Amendment due to a conflict of interest, and whether counsel's alleged conflict adversely affected his representation of Hall during pretrial proceedings and the plea process." We now remand for an evidentiary hearing to determine whether there was an actual conflict of interest, which adversely affected the adequacy of his representation.

BACKGROUND

Kevin Hall is an inmate at the Federal Correctional Institution in Greenville, Illinois ("FCI Greenville"), and was when he was indicted. Assistant Federal Public Defender Lawrence J. Fleming was appointed as Hall's counsel on September 10, 1999. Earlier, Fleming had represented a defendant named Anthony Gignac. Gignac had pleaded guilty and had been sentenced ten days before Fleming began his representation of Hall.

On September 16, 1999, Fleming revealed his representation of Gignac to the Assistant United State's Attorney who was prosecuting Hall. He explained that Gignac had informed prison officials that one Thomas Belwood, one of Hall's co-defendants, was involved in the distribution of marijuana while serving as a corrections officer at FCI Greenville. Fleming expressed his assumption that the reports of drug dealing at FCI Greenville that Gignac had given to FBI agents in connection with his proffer still existed. Fleming concluded by noting his concern that his serving as Gignac's counsel created a conflict of interest in his representation of Hall: "If there is any possibility that Gignac will be a witness in this case, there is an obvious conflict." Br. of Petitioner-Appellant at 3.

The district court set Hall's pretrial conference for November 18, 1999, and a jury trial for December 7, 1999. Each of Hall's co-defendants pleaded guilty by the end of November 1999. During that time, Fleming had been communicating with the government in an effort to reach a plea agreement for Hall. In another letter to the AUSA, dated October 27, 1999, Fleming expressed desire to begin conversation about Hall's case and stated that, "if you will recommend the low end of the Guidelines and agree that there will be no further prosecutions for any offense now known to the Government, I will recommend that Mr. Hall plead guilty pursuant to your standard plea agreement." Br. of Petitioner-Appellant at 4.

With respect to Fleming's conflict of interest, the October 27 letter expressed Fleming's assumption that the AUSA did not perceive any conflict based on Fleming's prior representation of Gignac:

Finally, since I have not received a response to my letter of September 16, 1999, I assume you do not see any conflict on behalf of our office in this case. If you do, please let me know immediately.

Id.

In a letter from Fleming to the AUSA dated November 9, 1999, Fleming stated that he had not received a plea agreement from the AUSA despite the scheduled change of plea hearing on November 16, 1999:

I don't have a plea agreement from you yet, but if you agree with the computations set out in my letter of October 27, 1999 (copy attached) I'd appreciate you getting a draft of a plea agreement to me by Monday, November 15, 1999, so that I have a chance to review it with Mr. Hall before the 16th.

Br. of Petitioner-Appellant at 5.

The November 9 letter also stated that the government had not provided the discovery that Fleming's October 27 letter had requested:

Mr. Hall is still rather adamant about the fact that we still don't have all the discovery, so if you have anything else you can give me, please send that also.

Id.

Fleming concluded the November 9 letter noting his concern that convincing Hall to plead guilty was going to be difficult:

This is going to require a continuing sales job on my part, since my client is fairly well `institutionalized', so please give me whatever you can to answer his arguments.

Id.

Hall pleaded guilty on November 22, 1999 and was sentenced. Hall eventually received a copy of his entire case file where he learned for the first time that Fleming had represented Gignac. In addition, there is no indication in the record that Fleming informed the district court of the potential conflict.

DISCUSSION

I. Standard of Review

In reviewing the district court's order denying a petitioner's motion to vacate or set aside his conviction pursuant to 28 U.S.C. § 2255, we review all questions of law de novo. Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). The district court's factual findings are reviewed for clear error. Id. A § 2255 petitioner is entitled to an evidentiary hearing on his claims, when he alleges facts that, if proven, would entitle him to relief. Id.

Hall's § 2255 assertion that he was denied his Sixth Amendment right to effective assistance of counsel is reviewed de novo. Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir.1997), modified in part, 127 F.3d 551 (7th Cir.1997).

II. Analysis

Criminal defendants are guaranteed effective assistance of counsel at all stages of the proceedings against them. Cates v. Superintendent, 981 F.2d 949, 952 (7th Cir.1992). This right includes the right to "representation that is free from conflict of interest." Spreitzer, 114 F.3d at 1450 (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)).

There are two ways to assert a claim based on counsel's conflict of interest. One, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the petitioner may show that his attorney had a potential conflict of interest and that the potential conflict prejudiced his defense; or two, the petitioner may proceed under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), where he must establish a violation "by showing that `an actual conflict of interest adversely affected his lawyer's performance.'" Stoia, 22 F.3d at 770 (quoting Sullivan, 446 U.S. at 348, 100 S.Ct. 1708) (emphasis added).

Proceeding under Sullivan places a "lighter burden" on the defendant than Strickland because demonstrating an "adverse effect" is significantly easier than showing "prejudice". Spreitzer, 114 F.3d at 1450; Stoia, 22 F.3d at 771. This more lenient standard applies because the requirements in Sullivan reflect that "prejudice is presumed" if the petitioner establishes both that his counsel had an actual conflict and that the conflict had an adverse effect on counsel's performance. Stoia, 22 F.3d at 770-71 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052).

Conflict of Interest

Under Sullivan, an actual conflict exists if the defense counsel was faced with a choice between advancing his own interests above those of his client. Stoia, 22 F.3d at 771. We have held that an attorney's prior representation of another client leads to an actual conflict when the attorney faces the possibility of having to cross-examine his former client. Enoch v. Gramley, 70 F.3d 1490, 1496 (7th Cir.1995). "A corollary danger is that the lawyer will fail to cross-examine the former client rigorously for fear of revealing or misusing privileged information." Id. Here, Hall's defense counsel had a potential conflict of interest because of his representation of Gignac, who, according to Fleming's account, had provided information about Belwood's drug-distribution activities at FCI Greenville to FBI agents. Because Hall was charged with conspiring with Belwood, Gignac's implication of Belwood pertained to the offenses for which Hall was indicted.

In cases where there is successive representation, we have held that the defendant must show either (1) that the attorney's representation of the first client was "substantially and particularly related to his later representation of defendant," or (2) that the attorney actually "learned particular confidential information during the prior representation of the witness that was relevant to defendant's later case." Enoch, 70 F.3d at 1496-97. Here, Fleming's representation of Gignac enabled him to learn confidential information pertaining directly to Hall's case. Fleming's correspondence with the AUSA reveals his own concerns about such a conflict.

Adverse Effect

A showing of a conflict does not automatically entitle a petitioner to reversal. The Supreme Court in Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), requires that a petitioner also show adverse effect. However, we find no language in Mickens that requires a petitioner to engage in speculation pointing to an actu...