Parker v. Parratt, Civ. No. 78-L-30

• Decision Date: 06 January 1981
• Docket Number: 78-L-31.,Civ. No. 78-L-30
• Citation: 504 F. Supp. 690
• Parties: Willis PARKER, Petitioner, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Respondent. Armstead PIERCE, Petitioner, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Respondent.
• Court: U.S. District Court — District of Nebraska

504 F. Supp. 690

Willis PARKER, Petitioner, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Respondent.

Armstead PIERCE, Petitioner, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Respondent.

Civ. Nos. 78-L-30, 78-L-31.

United States District Court, D. Nebraska.

January 6, 1981.

Jarve L. Garrett, Omaha, Neb., for petitioner.

Harold Mosher, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for respondent.

DENNEY, District Judge.

NATURE OF THE CASE

The petitioners, Willis Parker and Armstead Pierce, seek writs of habeas corpus under 28 U.S.C. § 2254. They allege that their Sixth Amendment rights were infringed when they were jointly tried and convicted in state court, where they were represented by the same court-appointed attorney. The gist of petitioners' claim for relief is that they were denied effective assistance of counsel because of a conflict of interest on the part of their attorney.

FACTS AND BACKGROUND

Petitioners Parker and Pierce were arrested as suspects in connection with an eighteen year old woman's complaint that she had been kidnapped and raped. Parker and Pierce later were separately charged with kidnapping and rape in the District Court of Douglas County, Nebraska. A state court judge ordered that their trials be consolidated. Assistant Douglas County Public Defender William Campbell was assigned to represent both men. At the consolidated trials, the jury returned guilty verdicts on both counts. Parker and Pierce appealed to the Nebraska Supreme Court. They contended that the evidence at trial was insufficient to convict them. They also argued that, because Public Defender Campbell represented both of them under a conflict of interest, their Sixth Amendment rights to effective assistance of counsel were infringed.¹ The Supreme Court of Nebraska rejected these arguments and affirmed the convictions. State v. Parker, State v. Pierce, 196 Neb. 762, 766, 246 N.W.2d 210, 212 (1976).

Before proceeding any further, it might be useful to set out the general factual background of these cases, as found by the Nebraska Supreme Court:

The prosecuting witness was 18 years of age. She testified that she and her nephew, who was 2 years old, had gone to a grocery store in Omaha, Nebraska. When they arrived at the grocery store it was closed. As they were leaving the parking lot an automobile driven by the defendant Pierce drove into the parking lot and pulled up next to her. While Pierce tried to engage her in conversation, the defendant Parker got out of the car, picked up her nephew, and placed him in the back seat of the automobile. Parker then told her she had to go with them because they had her nephew in the car.

The prosecuting witness entered the front seat of the car and Parker got in the back seat with the nephew. After driving around for a while, Pierce stopped at a liquor store and obtained some wine. He then drove to a house near 28th and Miami Streets, rented by a brother of Pierce, and all four of them went into the house.

The defendants drank some of the wine and smoked some marijuana cigarettes. Pierce asked the prosecuting witness to dance with him so she danced with him for a while. When she tried to leave the house one of the defendants grabbed her and threw her in a chair and threw the nephew on a couch. She fought with the defendants and scratched them, and bit Parker when he tried to kiss her. Finally Pierce took her into the bedroom, pushed her onto the bed, and told her to take her clothes off. When she refused, Parker came into the bedroom and said he would throw her nephew down the stairs if she didn't do what they wanted. Pierce had sexual intercourse with her first and then Parker had sexual intercourse with her. When they had finished the defendants took her to 40th and Pratt Streets.

The prosecuting witness called one of her teachers from a friend's house near 40th and Pratt Streets and asked her to come and get her. When the teacher and her husband arrived the prosecuting witness told them she had been raped, related the details of the offense, and pointed out the house where it had occurred. When she arrived home she told her mother she had been raped and related the details of the offense. The police were called and came to her home where they interviewed her. She was examined at the University of Nebraska Medical Center and sperm was found in her vagina.

State v. Parker, State v. Pierce, supra, 196 Neb. at 763-64, 246 N.W.2d at 211.

The petitioners are presently serving concurrent twenty-five year sentences pursuant to their kidnapping and rape convictions. In February, 1978, they filed petitions seeking federal habeas corpus relief. This Court has held two hearings on these cases. The first hearing was held in August of 1978, and the second was held in February of 1980.

A consolidated supplemental memorandum brief was submitted on behalf of the petitioners on August 1, 1980. In support of the prayer for habeas corpus relief, the petitioners made two arguments, summarized as follows:

I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO APPOINT SEPARATE COUNSEL OR ALTERNATIVELY ERRED BY FAILING TO TAKE ADEQUATE STEPS TO ASCERTAIN WHETHER THE RISK OF A CONFLICT OF INTEREST WAS TOO REMOTE TO WARRANT SEPARATE COUNSEL. AND THE TRIAL COURT DID NOT CONDUCT A MEANINGFUL INQUIRY AND THERE WAS NO KNOWING AND VOLUNTARY WAIVER FOR PETITIONERS OF THEIR RIGHT TO SEPARATE COUNSEL. THE TRIAL COURT COMMITTED PREJUDICIAL ERR sic BY ORDERING PETITIONERS sic TRIAL CONSOLIDATED.

II. THE RIGHTS OF THE PETITIONERS WERE PREJUDICED BY THE INCOMPETENCY OF COURT APPOINTED COUNSEL IN FAILING TO OBJECT TO THE CONSOLIDATION FO sic THE TRIALS. THE RIGHTS OF THE PETITIONERS WERE PREJUDICED BY THE INCOMPETENCY OF THE COURT APPOINTED COUNSEL IN FAILING TO MAKE A REQUEST FOR SEPARATE COUNSEL FOR THE CO-DEFENDANTS OR ALTERNATIVELY THE RIGHTS OF THE PETITIONERS WERE PREJUDICED BY COURT APPOINTED COUNSEL'S FAILURE TO TAKE ADEQUATE STEPS TO WARN THEM ABOUT THE POTENTIAL CONFLICTS OF INTEREST IN THEIR RESPECTIVE CASES. COURT APPOINTED COUNSEL DID NOT CONDUCT A MEANINGFUL INQUIRY TO DETERMINE WHETHER PETITIONERS WISHED TO WAIVE THEIR RIGHT TO SEPARATE COUNSEL.

Petitioners' Consolidated Supplemental Brief at i.

CUYLER v. SULLIVAN

The Court has noted various dates of filings, hearings, and briefs. These dates are important only because the United States Supreme Court quite recently decided a case which is dispositive of most of the issues present herein. On May 12, 1980, the Supreme Court handed down its decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) hereinafter cited as Sullivan.

Sullivan reached the Supreme Court in the following manner:

Two privately retained lawyers represented respondent and two others charged with the same murders. Respondent, who was tried first, made no objection to the multiple representation. The defense rested at the close of the prosecutor's case, and respondent was convicted. The two codefendants later were acquitted at separate trials. Respondent then sought collateral relief under Pennsylvania law, alleging that he had not received effective assistance of counsel because his lawyers represented conflicting interests. After a hearing at which both defense lawyers testified, the Pennsylvania Court of Common Pleas denied relief. The Pennsylvania Supreme Court affirmed, finding no multiple representation and concluding that the decision to rest the defense was a reasonable trial tactic. Respondent next sought habeas corpus relief in Federal District Court, but the court accepted the Pennsylvania Supreme Court's conclusion that respondent's lawyer did not represent the other defendants and further concluded that respondent had adduced no evidence of a conflict of interest. The Court of Appeals for the Third Circuit reversed. It held that the participation of the two lawyers in all three trials established as a matter of law that both lawyers represented all three defendants, and that the possibility of conflict among the interests represented by these lawyers established a violation of respondent's Sixth Amendment right to counsel.

Sullivan, supra, Syllabus by the Reporter of Decisions, 100 S.Ct. at 1711.

Insofar as it is pertinent to the habeas corpus relief sought by Parker and Pierce, the Sullivan decision is important mainly for three propositions of law. First, under 28 U.S.C. § 2254(d), a state court determination of whether an attorney undertook improper dual representation of criminal defendants is not binding on a federal court, i. e., such a determination is a mixed one of law and fact that requires the application of legal principles to the historical facts of the case. Sullivan, supra, 100 S.Ct. at 1714-15. Secondly, while Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), mandates timely investigation by state courts of objections to multiple representation, the Sixth Amendment does not require state courts to initiate inquiries into the propriety of multiple representation in every case. Sullivan, supra, 100 S.Ct. at 1717. Absent special circumstances, state trial court judges may assume either that multiple representation entails no conflict, or that the lawyer and his or her clients knowingly accept such risk of conflict as may exist. Id. The rationale for this rule is that trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. Id. Lastly, the Supreme Court rejected the Third Circuit's conclusion that the mere possibility of conflict of interest on the part of defense counsel is enough to impugn a criminal conviction. To the contrary, "in order to establish a violation of the Sixth Amendment, a defendant who fails to make an objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. 100 S.Ct. at 1718. However, it is...