Wilson v. Morris, 81-2252
Decision Date | 05 January 1984 |
Docket Number | No. 81-2252,81-2252 |
Citation | 724 F.2d 591 |
Parties | Johnny Lee WILSON, Petitioner-Appellee, v. Ernest MORRIS, et al., Respondents-Appellants. |
Court | U.S. Court of Appeals — Seventh Circuit |
James Kuehl, Urbana, Ill., for petitioner-appellee.
Michael V. Accettura, Asst. Atty. Gen., Springfield, Ill., for respondents-appellants.
Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
The petitioner and a man named Stanley Tyler were charged with rape and armed robbery. When the two men appeared before an Illinois trial court for their preliminary examination, the prosecutor moved the court to hold a joint hearing. The attorney who represented both men objected, but the trial judge joined the cases only for the purpose of preliminary examination. The petitioner, who was subsequently convicted on the charges, contends that proof of these facts alone establishes that he was denied his Sixth Amendment right to counsel free from a conflict of interest. We disagree and therefore reverse the district court's order granting a writ of habeas corpus.
On September 28, 1977, a woman was raped in her home in Vermilion County, Illinois. The woman's three assailants, who were armed with guns, also stole a small amount of money from her purse. Based on statements made to the police by one of the assailants, the petitioner and Stanley Tyler were arrested and charged with rape and armed robbery.
The petitioner and Stanley Tyler appeared for their preliminary examinations before a state-court judge on October 21, 1977. Both men were represented by the same attorney, an assistant public defender. When the prosecutor moved to consolidate the preliminary examinations, the following colloquy between the court and counsel ensued:
Probable cause was found at the joint hearing and the petitioner and Tyler were bound over for trial. Although the same attorney continued to represent both defendants, separate trials before different judges and juries were held. The petitioner was convicted and sentenced to concurrent terms of 10 to 30 years for rape and 5 to 15 years for armed robbery.
After exhausting state appeals, the petitioner commenced this action seeking a writ of habeas corpus. The petitioner asserted two distinct Sixth Amendment claims. Relying on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1980), he first contended that the writ must issue because the state court held, over defense counsel's objection, a joint preliminary examination. The petitioner also made the broader claim that the public defender's representation of co-defendants was unconstitutional. On this latter claim the district court entered judgment in favor of the respondents after finding that "the petitioner has set forth no facts showing that 'an actual conflict of interest adversely affected his lawyer's performance.' " The Holloway claim, however, was held over for a hearing.
On July 17, 1981, the district court entered an order granting a writ of habeas corpus. See 527 F.Supp. 422. Without finding that an actual conflict of interest adversely affected defense counsel's performance at the preliminary examination, the court held that in light of counsel's objection to a joint hearing, " 'reversal is automatic.' " Id. at 426 (quoting Holloway v. Arkansas, 435 U.S. at 489, 98 S.Ct. at 1181). The order granting the writ was stayed pending appeal.
A majority of a panel of this court affirmed the district court's judgment on February 7, 1983. On April 1, 1983, however, we granted the petition for rehearing, vacated the panel decision, and assigned the appeal to a calendar for consideration by the full court.
The fundamental principles embodied in the Sixth Amendment are beyond dispute. A criminal defendant is entitled to counsel unimpaired by a conflict of interest. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Joint representation, however, is not per se violative of this constitutional guarantee. To establish a constitutional violation, a defendant who raised no objection "at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). A constitutional violation occurs, and proof of an actual conflict is not required, when a defendant's attorney objects to joint representation and the trial court overrules the objection without exploring the basis of the objection or the adequacy of the representation in the face of a potential conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
The positions espoused in Cuyler and Holloway are, in fact, very similar. The Supreme Court in Holloway did not create a technical rule that benefits a defendant without any relationship to the fairness of his prosecution. The Court in Holloway simply noted that the best proof of an actual conflict of interest may be an objection to multiple representation. Defense counsel are generally best situated to notice a conflict of interest and are obligated to report actual conflicts to the court. See Holloway, 435 U.S. at 485-86, 98 S.Ct. 1179-80. Absent an inquiry by the trial judge that reveals the objection to be specious, the objection itself is sufficient evidence that an actual conflict of interest affected counsel's performance. Once a Sixth Amendment violation is established under Cuyler or Holloway, relief must be granted; unconstitutional multiple representation is never harmless error. See Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718; Holloway, 435 U.S. at 490-91, 98 S.Ct. at 1181-82.
In attempting to apply Sixth Amendment principles in this appeal, the respondents unfortunately misuse terminology. They urge us to apply a "harmless error analysis" with respect to the adequacy of the petitioner's representation. By the phrase "harmless error analysis," however, the respondents mean that relief should not be granted unless the petitioner demonstrates an "adverse effect upon his counsel's performance at the preliminary hearing as a result of any potential conflict." Brief for Respondents-Appellants at 9. When the respondents' position is thus defined, it becomes evident that they are not conceding a constitutional violation occurred and requesting us to find the error harmless--i.e., that the petitioner would have been convicted anyway, see United States ex rel. Williams v. Franzen, 687 F.2d 944, 948-49 (7th Cir.1982); Wade v. Franzen, 678 F.2d 56, 59 (7th Cir.1982). Rather, the respondents are asking us to apply the rule of Cuyler v. Sullivan to this case and hold that a Sixth Amendment violation must be established by proof of an actual conflict of interest adversely affecting counsel's performance. The respondents made this argument to the district court and therefore preserved the matter for our present attention.
From examining the state-court record, we fail to perceive any objection to joint representation. The defense attorney objected to consolidating the preliminary proceedings against the petitioner and Stanley Tyler; he did not object to representing both defendants. When the prosecutor moved to hold a consolidated preliminary examination, the defense counsel stated: The defense counsel's objection to a combined preliminary hearing was overruled but he did not seek leave to withdraw. Apparently unaware of an actual conflict of interest, he continued to represent both defend...
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