United States v. Stitt, 07-11.

• Decision Date: 24 December 2008
• Docket Number: No. 07-11.,No. 07-12.,07-11.,07-12.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

552 F.3d 345

UNITED STATES of America, Plaintiff-Appellee, v. Richard Thomas STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Richard Thomas Stitt, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellee.

No. 07-11.

No. 07-12.

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2008.

Decided: December 24, 2008.

ARGUED: Gerald Thomas Zerkin, Office of the Federal Public Defender, Richmond, Virginia, for Richard Thomas Stitt. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for the United States. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia; Amy L. Austin, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia; Jeffrey L. Stredler, Williams Mullen, Norfolk, Virginia, for Richard Thomas Stitt. Chuck Rosenberg, United States Attorney, Alexandria, Virginia; Darryl J. Mitchell, Assistant United States Attorney, William D. Muhr, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for the United States.

Before WILLIAMS, Chief Judge, and MOTZ and SHEDD, Circuit Judges.

Affirmed in part; reversed and remanded in part with instructions by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.

OPINION

WILLIAMS, Chief Judge:

We granted Richard Thomas Stitt, a federal inmate, a certificate of appealability ("COA") to consider his claim that during the guilt phase of his federal capital proceeding, his trial counsel labored under a conflict of interest that adversely affected his representation. By way of cross-appeal, the Government argues that the district court, after granting Stitt relief under 28 U.S.C.A. § 2255 (West Supp. 2008) as to the penalty phase of his trial and vacating his death sentence, erred by concluding that Stitt was no longer eligible for the death penalty because the statute under which Stitt's death sentence was imposed has since been repealed, see 21 U.S.C.A. § 848(g) (West 1999) (repealed 2006), and by sentencing Stitt to life imprisonment. We agree with the district court that Stitt is not entitled to relief as to his guilt-phase conflict of interest claim, but we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109 (West 2005). Accordingly, we vacate Stitt's life sentence and remand the case for a new sentencing hearing.

I.

In 1998, a jury sitting in the Eastern District of Virginia convicted Stitt of three counts of murder during a continuing criminal enterprise, in violation of 21 U.S.C.A. § 848, as well as numerous other federal drug and firearms offenses in Virginia and North Carolina.¹ See United States v. Stitt ("Stitt I"), 250 F.3d 878, 881-82 (4th Cir.2001). Following a penalty phase conducted pursuant to § 848(g), the jury recommended a death sentence for each of the murders, and the district court sentenced Stitt to death plus 780 months imprisonment. We affirmed Stitt's conviction and sentence on direct appeal. Stitt I, 250 F.3d at 900.

On May 12, 2003, Stitt filed a timely motion under 28 U.S.C.A. § 2255 to vacate his conviction and sentence. In his § 2255 motion, Stitt raised two claims relevant to the current appeal. First, Stitt contended that his trial counsel, Norman Malinski, labored under a conflict of interest at the guilt phase of Stitt's trial. Specifically, Stitt claimed that Malinski failed to conduct an investigation or hire appropriate experts to investigate the alleged criminal acts that occurred in North Carolina. Stitt claimed that Malinski failed to do so because, under the fee agreement between him and Malinksi, any expense payments were to come from the retainer paid to Malinski, and Malinski wanted to keep that money. Second, Stitt argued that Malinski was likewise under a conflict of interest during the penalty phase of Stitt's trial. This claim focused on Malinski's decision to hire an "expert" on future dangerousness whose only knowledge of federal prisons came from watching a television program. Stitt argued that Malinski hired this "expert" instead of asking the district court to appoint an expert in order to keep the district court from delving into Malinski's fee agreement with Stitt.²

Following two evidentiary hearings, the district court entered an order denying all of Stitt's claims except the claim that Stitt had been denied his right to conflict-free counsel during the penalty phase of his trial. Stitt v. United States ("Stitt II"), 369 F.Supp.2d 679 (E.D.Va.2005). Accordingly, the district court vacated Stitt's death sentence. Both sides appealed. We granted Stitt a COA on a single claim— whether Malinski had an actual conflict of interest at the guilt phase. We initially affirmed the district court's denial of relief as to Stitt's guilt-phase conflict of interest claim and its grant of relief as to his penalty-phase conflict of interest claim. United States v. Stitt ("Stitt III"), 441 F.3d 297 (4th Cir.2006). Prior to the issuance of our mandate, however, we withdrew our opinion in Stitt III, concluding that we lacked jurisdiction to hear the appeal because "there is no final judgment `until the prisoners are resentenced.'" United States v. Stitt ("Stitt IV"), 459 F.3d 483, 485 (4th Cir.2006) (quoting Andrews v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963)). We remanded the case to the district court with instructions to resentence Stitt.

On remand, the district court sua sponte entered an order requesting the parties to brief the following question:

Although 21 U.S.C. § 848(i)(1) contemplates the impaneling of a new jury for the purpose of a capital resentencing, can this Court exercise its "broad and flexible § 2255 remedial power," United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir.1997), to "correct the sentence as may appear appropriate," 28 U.S.C. § 2255, and resentence Petitioner without application of the Death Penalty.

(J.A. at 1774.)

Following briefing, the district court answered its question in the affirmative and declined to empanel a new sentencing jury for the penalty phase, concluding that Stitt was no longer statutorily eligible for the death penalty. The district court reached this conclusion after finding that § 848(g), which had been repealed during the pendency of Stitt's appeals, could no longer apply to Stitt and that the Federal Death Penalty Act, 18 U.S.C.A. § 3591 et seq. ("FDPA"), did not provide a mechanism for empanelling a new sentencing jury. Stitt v. United States ("Stitt V"), 475 F.Supp.2d 571 (E.D.Va.2007). In the alternative, the district court concluded that, even if it had the statutory authority to call a new sentencing jury, it would exercise its discretion under § 2255 and decline to do so. Id. at 576. Accordingly, the district court, from the bench, resentenced Stitt to life imprisonment plus 780 months.

Both Stitt and the Government filed timely appeals. Pursuant to United States v. Hadden, 475 F.3d 652 (4th Cir.2007),³ Stitt requested a COA from this court on two issues: whether Malinski labored under an actual conflict of interest during the guilt-phase of the trial that adversely affected his representation and whether Stitt was denied his right to learned counsel. By order dated June 12, 2008, we granted Stitt a COA on his conflict of interest claim.

Meanwhile, in its appeal, the Government no longer contests the district court's decision to grant Stitt relief as to his claim that Malinski labored under a conflict of interest during the penalty phase. Instead, the Government confines its appeal to whether the district court's resentencing decision was error. We possess jurisdiction over the Government's appeal pursuant to 18 U.S.C.A. § 3742(b) (West 2000) and 28 U.S.C.A. § 1291 (West 2006).

II.

A.

We first address Stitt's claim that Malinski had an actual conflict of interest during the guilt phase of Stitt's trial that adversely affected his representation. We review the district court's legal conclusions in denying a § 2255 motion de novo. United States v. Poindexter, 492 F.3d 263, 267 (4th Cir.2007). Where the district court held an evidentiary hearing prior to its ruling, we review its findings of fact for clear error. United States v. Roane, 378 F.3d 382, 395 (4th Cir.2004).

Generally, in order to show ineffective assistance of counsel, Stitt would be required to meet the familiar two-part Strickland test: (1) that his lawyer afforded him defective representation; and (2) that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But, when counsel is burdened by an actual conflict of interest, he "breaches the duty of loyalty, perhaps the most basic of counsel's duties." Id. at 692, 104 S.Ct. 2052. In such cases, "it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Id. Because of this difficulty in measuring prejudice and the seriousness of a conflict of interest, "[p]rejudice is presumed ... if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)) (internal quotation marks omitted).

Thus, in order to fall within the Sullivan presumption, we have explained that a defendant must demonstrate "an actual conflict of interest" that "result[s] in an adverse effect on counsel's performance." United States v. Tatum, 943 F.2d 370, 375 (4th Cir.1991) (emphasis omitted). These requirements "are often intertwined." Id. But, an "[a]...