Perillo v. Johnson

• Citation: 205 F.3d 775
• Decision Date: 02 March 2000
• Docket Number: No. 98-20653,98-20653
• Parties: (5th Cir. 2000) PAMELA LYNN PERILLO, Petitioner-Appellee, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 775

205 F.3d 775 (5th Cir. 2000)

PAMELA LYNN PERILLO, Petitioner-Appellee, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant.

No. 98-20653

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

March 2, 2000

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Appeal from the United States District Court for the Southern District of Texas

Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge.

Gary Johnson, the Director of the Texas Department of Criminal Justice's Institutional Division, ("the Director") appeals the district court's final judgment granting Pamela Perillo's 28 U.S.C. 2254 petition for habeas corpus relief. The district court determined that Perillo's trial counsel labored under an actual conflict of interest that adversely affected counsel's presentation of Perillo's defense on the issues of both guilt and punishment at her 1980 trial. The district court therefore vacated the criminal judgment against Perillo, both as to her conviction and her death sentence, and ordered that Perillo be released unless the State of Texas elected to retry her within 120 days of the date upon which the district court's decision became final. After an exhaustive review of the unique factual scenario presented in this case, we affirm.

I.

This is the second time this case has been before our Court for decision. In March 1996, our Court reviewed Perillo's appeal from the district court's decision granting the Director summary judgment and denying relief. See Perillo v. State, 79 F.3d 441 (5th Cir. 1996) (Perillo I). In that decision, we determined that Perillo was entitled to investigate her Sixth Amendment claim through discovery and an evidentiary hearing narrowly tailored to address whether trial counsel Jim Skelton's prior and concurrent representation of Linda Fletcher, the state's star witness against Perillo, created an actual conflict that adversely affected Skelton's performance at Perillo's trial. See id.

The parties argue that our disposition of this second appeal is in some measure determined by our prior consideration of this case. The Director argues that this Court's focus in the prior opinion upon particular factual disputes, those relating to Skelton's concurrent representation of Fletcher in California, precludes the district court's identification of any other facts that support a finding of actual conflict in the record. We disagree. As an initial matter, we note that the district court did not venture far afield of our prior decision; the factual context relied upon by the district court, the circumstances surrounding Skelton's cross-examination of Fletcher at Perillo's trial, is in fact raised in our prior opinion. See id. at 450-51. Moreover, this appeal is presented in a different posture and demands a different standard of review from the first appeal. See Society of Roman Catholic Church of Diocese of Lafayette, Inc. v. Interstate Fire & Casualty Co., 126 F.3d 727, 735 (5th Cir. 1997) (noting that application of the law of the case doctrine is inappropriate when the relevant issues are governed by different standards of review). The prior appeal, which was from summary judgment without discovery or an evidentiary hearing, presented the issue of whether there was a factual dispute, which if resolved in Perillo's favor, would entitle her to relief. See Perillo I, 79 F.3d at 444. Thus, this Court did not purport to find an actual conflict of interest or an adverse effect arising from that conflict. See id. at 444, 451. The Court simply focused upon one factual dispute, which if resolved in Perillo's favor, would support relief. The Court did not, and did not need to, try to identify every factual dispute that could give rise to relief. For that reason, our prior opinion should not be viewed as foreclosing the district court's reliance upon a slightly different factual context for its determination that Perillo's counsel Skelton labored under an actual conflict that adversely affected his performance.

Perillo argues that the prior opinion is binding to the extent it constitutes this Court's reasoned position on presumed facts that are confirmed by the record on remand. While this argument is closer to the mark, we take issue with Perillo's broad suggestion that we are constrained to afford relief on the force of our prior disposition. The law of the case doctrine is a matter of judicial discretion rather than judicial power when a court is reviewing its own prior decision. See United States v. O'Keefe, 169 F.3d 281, 283 (5th Cir. 1999); see also United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999), cert. granted , 120 S. Ct. 865 (2000). . Moreover, while we may certainly choose to rely upon our prior disposition of those factual or legal issues that are either unaffected by the different procedural posture or unchanged by the record on remand, those determinations identified by Perillo are not necessarily determinative of her claim. We therefore review the district court's decision granting relief in light of all of the relevant evidence, including the evidence on remand, and in light of the standard of review appropriate to the procedural posture of this appeal.

The present appeal is from the district court's final judgment that Perillo demonstrated an actual conflict of interest that adversely affected Skelton's presentation of her defense. See Cuyler v. Sullivan, 100 S. Ct. 1708 (1980). The determinations of actual conflict and adverse effect are mixed questions of fact and law, which we review de novo. See Strickland v. Washington, 104 S. Ct. 2052, 2070 (1984); Cuyler, 100 S. Ct. at 1715; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); Perillo I, 79 F.3d at 446. The district court's underlying factual determinations, which were made after full discovery and two evidentiary hearings, are entitled to substantial deference, and should be reversed only if they are shown to be clearly erroneous. See Strickland, 104 S. Ct. at 2070; Placente, 81 F.3d at 558.

II.

Perillo's claim that she was denied her Sixth Amendment right to effective assistance of conflict-free counsel at trial because her trial attorney, Jim Skelton, was acting under the influence of an actual conflict that adversely affected his performance at her trial is governed by Cuyler v. Sullivan, 100 S. Ct. 1708 (1980) and its progeny. See Strickland v. Washington, 104 S. Ct. 2052, 2064-67 (1984); Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc). The Cuyler standard applicable when a criminal defendant alleges that counsel's performance was impaired by an actual conflict of interest differs substantially from the Strickland standard generally applicable to Sixth Amendment ineffectiveness claims. See Strickland, 104 S. Ct. at 2067; see also Beets, 65 F.3d at 1265. Strickland requires a showing that counsel's performance was deficient, in that it fell below an objective standard of reasonableness, as well as a showing of prejudice, which is defined as a reasonable probability that counsel's error changed the result of the proceeding. See Strickland, 104 S. Ct. at 2064-69; Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1265. Cuyler, on the other hand, permits a defendant who raised no objection at trial to recover upon a showing that an actual conflict of interest adversely affected counsel's performance. See Cuyler, 100 S. Ct. at 1718; Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1264; see also Strickland, 104 S. Ct. at 2067.

An "actual conflict" exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client. See id. at 2067; Perillo I, 79 F.3d at 447; United States v. Alvarez, 580 F.2d 1251, 1254 (5th Cir. 1978); see also Beets, 65 F.3d at 1270 (limiting Cuyler to cases of multiple representation). "Adverse effect" may be established with evidence that "some plausible alternative defense strategy or tactic" could have been pursued, but was not because of the actual conflict impairing counsel's performance. See Perillo I, 79 F.3d at 449. Assuming the defendant establishes an actual conflict that adversely affected counsel's performance, prejudice is presumed without any further inquiry into the effect of the actual conflict on the outcome of the defendant's trial. See Strickland, 104 S. Ct. at 2067; Cuyler, 100 S. Ct. at 1719; Beets, 65 F.3d at 1265. "[U]nconstitutional multiple representation is never harmless error." See Cuyler, 100 S. Ct. at 1719.

Beyond those basic legal precepts, Cuyler's "actual conflict" and "adverse effect" elements have been described as "rather vague." See Beets, 65 F.3d at 1265. Even a brief review of the precedent reveals that any categorical treatment of when an actual conflict exists is difficult. Compare United States v. Olivares, 786 F.2d 659 (5th Cir. 1986) (cross-examination of a state witness that was also a former client did not give rise to an actual conflict) with United States v. Martinez, 630 F.2d 361 (5th Cir. 1980) and Alvarez, 580 F.2d 1251 (cross-examination of state witness that was also a former client gave rise to an actual conflict). Instead, the determination of actual conflict and adverse effect is tightly bound to the particular facts of the case at hand. See, e.g., Maiden v. Bunnell, 35 F.3d 477, 481 (9th Cir. 1994). For that reason, a fairly lengthy review of the relevant facts, as enriched by the evidence submitted in the district court on remand and developed in the district court'sdecision, is essential to our disposition of this case. Except where we have expressly noted otherwise, we have adopted as without error the district court's explicit and implicit fact findings on remand.

III. A.The Crimes and Perillo's Statements to Police

More than nineteen...