U.S.A v. Nicholson

• Citation: 611 F.3d 191
• Decision Date: 12 July 2010
• Docket Number: No. 08-6347.,08-6347.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jack Lavelton NICHOLSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

611 F.3d 191

UNITED STATES of America, Plaintiff-Appellee,v.Jack Lavelton NICHOLSON, Defendant-Appellant.

No. 08-6347.

United States Court of Appeals,

Fourth Circuit.

Argued: Sept. 24, 2009.

Decided: July 12, 2010.

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ARGUED: Marvin David Miller, Law Office of Marvin D. Miller, Alexandria Virginia, for Appellant. James Ashford Metcalfe, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Heather Golias, Law Office of Marvin D. Miller, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, for Appellee.

Before KING and DUNCAN, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge DUNCAN joined. Judge KEELEY wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

Jack Lavelton Nicholson has twice been denied 28 U.S.C. § 2255 habeas corpus relief in the Eastern District of Virginia-and has twice appealed-on his claim that he was deprived of his Sixth Amendment right to effective assistance of counsel because his lawyer had an actual conflict of interest. More specifically, Nicholson maintains that, during his sentencing proceedings on a federal firearm offense, his lawyer declined to move for a downward departure on the basis of self-defense necessity (a “self-defense departure”) in order to avoid accusing another of the lawyer's clients of threatening Nicholson's life. In Nicholson's first appeal of the district court's denial of § 2255 relief, we reversed the court's ruling that there was no conflict of interest, and we remanded for a determination of whether the conflict adversely impacted the lawyer's performance during the sentencing proceedings. See United States v. Nicholson, 475 F.3d 241 (4th Cir.2007) ( “ Nicholson I ”). On remand, the court ruled that the conflict had not adversely affected the lawyer's performance and, thus, yet again deemed Nicholson's claim to be without merit. See United States v. Nicholson, No. 2:01-cr-00041, 2008 WL 345897 (E.D.Va. Feb. 7, 2008) (the “Remand Opinion”). ¹ In this second appeal, as explained below, we reverse the court's denial of § 2255 relief and remand for resentencing.

I.

A.

On June 6, 2001, Nicholson pleaded guilty in the Eastern District of Virginia to the offense of possession of a firearm and ammunition by a felon, in contravention of 18 U.S.C. § 922(g)(1). At Nicholson's August 29, 2001 sentencing hearing, the district court determined that the applicable Sentencing Guidelines range was 168 to 210 months of imprisonment, but recognized that the statutory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), was 180 months.

Significantly, Nicholson's presentence investigation report (the “Nicholson PSR”) reflected that, when the authorities found him in possession of the firearm and ammunition, “Nicholson advised that he possessed the firearm for his own personal protection.” J.A. 858. Importantly, that Nicholson needed protection at the time of his arrest was acknowledged by the Government during both the sentencing hearing see id. at 50 (“Quite frankly, when he was arrested, there were people out to kill him.”), and the earlier plea colloquy see id. at 30 (“He stated that he had the firearm for his personal protection [and] [i]t's certainly reasonable to believe that someone might try to injure him or shoot him.”). During his allocution to the court at sentencing, Nicholson explained that “someone [had been] out to kill [him]” because his brother was a police informant, and that the person intending to kill him was responsible for the attempted murder of his brother and the murder of his step-father. Id. at 58. Nicholson then stated, “I was in fear for my life, so, yes, I possessed a gun, but it was only for my protection.” Id.

Although it was broadly understood and accepted that Nicholson had legitimate reason to fear for his life when the authorities found him in possession of the firearm, his lawyer, Jon Babineau, failed to move for a self-defense departure. Rather, Babineau sought only a downward departure on the ground that Nicholson suffered from a serious health condition, namely sickle cell anemia. The district court rejected this departure request and sentenced Nicholson to 189 months of imprisonment-nine months more than the statutory minimum. On direct appeal, Nicholson challenged the court's denial of his request for a health-related departure, but we affirmed. See United States v. Nicholson, 36 Fed.Appx. 151 (4th Cir.2002).

Thereafter, on June 6, 2003, Nicholson filed his 28 U.S.C. § 2255 motion, raising several ineffective assistance claims, including the claim that Babineau had an actual conflict of interest that adversely affected his performance during the sentencing proceedings. See Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (“In 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.”).² Nicholson's actual conflict of interest claim was based on his postsentencing discovery that, at the same time Babineau was representing Nicholson in connection with his federal firearm offense, Babineau was also representing Lorenzo Butts, a major drug dealer and the very person who had threatened Nicholson's life and was intent on killing him. On October 15, 2003, the district court denied § 2255 relief without conducting a hearing. See United States v. Nicholson, No. 2:01-cr-00041 (E.D.Va. Oct. 15, 2003) (the “First Opinion”).³ In assessing the actual conflict claim, the court concluded that Babineau did not have a conflict of interest. Thus, the court did not address whether any conflict had adversely affected Babineau's performance during Nicholson's sentencing proceedings.

B.

Nicholson appealed from the First Opinion's denial of § 2255 relief and, on November 10, 2004, we granted Nicholson a certificate of appealability (“COA”) on a single issue: “Did an actual conflict of interest cause his counsel to render constitutionally ineffective assistance when he failed to move for a downward departure?” See Nicholson I, 475 F.3d at 244 (internal quotation marks and alteration omitted).⁴ In our subsequent Nicholson I decision of February 2, 2007, we summarized the conflict claim as follows:

Nicholson asserts that his lawyer was operating under an actual conflict of interest at his August 29, 2001 sentencing hearing because, at that time, Nicholson's lawyer, Jon Babineau, was representing Nicholson as well as another client, Lorenzo Butts. Butts had previously threatened to kill Nicholson and his family, had attempted to kill Nicholson's brother, and had already killed Nicholson's step-father. Nicholson, who was convicted of a federal offense for his possession of a firearm and ammunition by a felon, asserts that he carried the handgun to protect himself from Butts. Nicholson maintains that Babineau, during the sentencing proceedings, failed to request a downward departure based on Nicholson's need to carry the handgun because, in so doing, Babineau would have accused his other client (Butts) of uncharged criminal conduct. Nicholson asserts that an actual conflict of interest thus existed, and that it adversely affected the performance of his lawyer during the sentencing proceedings, in contravention of his Sixth Amendment right to the effective assistance of counsel.

Id. Because the district court had considered affidavits and other materials submitted by the parties-but had not conducted an evidentiary hearing-we characterized the court's ruling in the First Opinion as akin to a summary judgment award to the Government and, thus, viewed the facts in the light most favorable to Nicholson. See id. at 248.

In assessing Nicholson's actual conflict of interest claim, we first concluded that, “[c]ontrary to the district court's ruling,” lawyer Babineau's simultaneous representation of Nicholson and Butts created a conflict of interest. Nicholson I, 475 F.3d at 249. We explained, in short, that “Nicholson's interests, on the one hand, and Butts's interests, on the other, were in total opposition to each other during Babineau's simultaneous representation of them.” Id. at 249-50. This simultaneous representation placed Babineau “in the position of having to make claims against Butts in order to pursue a downward departure motion, on the basis of self-defense necessity, in Nicholson's sentencing hearing.” Id. at 251. Because Babineau was “in the untenable position of having to place the interests of one client (either Butts or Nicholson) above another (either Nicholson or Butts),” Babineau was impaired by a conflict of interest during Nicholson's sentencing proceedings. Id. Accordingly, we reversed the district court's ruling that a conflict of interest did not exist. Id. at 252.

On the issue of whether Babineau's conflict adversely affected his performance in Nicholson's sentencing proceedings, we observed that a § 2255 petitioner must satisfy, by a preponderance of the evidence, the three-part standard established in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir.2001) (en banc) aff'd without consideration of this point, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). See Nicholson I, 475 F.3d at 251-52. More specifically, we explained:

He must, first of all, “identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued.” [ Mickens, 240 F.3d at 361]. Second, he must establish that “the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney at the time of the attorney's tactical decision.” Id. In order to satisfy this second prong, “the petitioner

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