Tooby's California Post-Conviction Relief for Immigrants

(B)

Adverse Effect on Performance.  All petitioner need show is that the active conflict adversely affected his counsel’s performance.

[A] rule requiring a defendant to show that a conflict of interests . . . prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application.  In the normal case where a harmless‑error rule is applied, the error occurs at trial and its scope is readily identifiable.  Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury.  But in a case [involving a conflict of interest] the evil ‑- it bears repeating ‑- is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.[252]

To establish that a conflict of interest adversely affected counsel’s performance, the defendant need only show that some effect on counsel’s handling of particular aspects of the trial was “likely.” Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 249, 109 S. Ct. 260 (1988).  As in Mannhalt, there are a number of areas in which an actual conflict of interest between Miskinis and Mitchell likely would have affected Mitchell’s advocacy.  These include: (1) Mitchell’s failure to put on an advice of counsel defense using Zecher’s testimony; (2) Mitchell’s refusal to testify regarding the conversation reported by Zecher; and (3) Mitchell’s failure to put Miskinis on the stand to testify regarding the alleged conversation. Assuming that an actual conflict of interest existed, Miskinis has satisfied the Cuyler test.[253]

            Petitioner need not show this claim would have prevailed.  He need not show prejudice.  The necessary showing has been made if it is clear that competent counsel would have raised the potentially meritorious issues.[254]  All that need be shown is that the conflict adversely affected counsel’s performance.  “[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.”[255]

            Once an actual conflict has been demonstrated, prejudice is presumed since the harm may not consist solely of what counsel does, but of “what the advocate finds himself compelled to refrain from doing, not only at trial but also” during pretrial proceedings and preparation.[256]  A requirement of a showing of prejudice “would not be susceptible of intelligent, even-handed application,”[257] as “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”[258]

            Harmless error analysis is inappropriate in this context.  Once a petitioner has shown that an actual conflict of interest adversely affected defense counsel’s performance, prejudice to the petitioner is presumed, and no further showing is necessary for reversal.[259]  “[T]he defendant need only show that some effect on counsel’s handling of particular aspects of the [appeal] was ‘likely.’” . . .  The strength of the prosecution’s case is not relevant to whether counsel’s performance was adversely affected.”[260]

[252] Holloway v. Arkansas, 435 U.S. 475, 490, 55 L.Ed.2d 426, 98 S. Ct. 1173 (1978); see also United States v. Tatum, 943 F.2d 370, 375‑76 (4th Cir. 1991).

[253] United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992).

[254] Robinson v. Wyrick, 635 F.2d 757 (9th Cir. 1980); Johns v. Coughlin, 750 F.Supp. 76 (E.D.N.Y. 1990) [failure to brief arguably meritorious issues was denial of right to counsel on appeal requiring fresh appeal].

[255] United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981), citing Cuyler v. Sullivan, supra.

[256] Holloway v. Arkansas, 435 U.S. 475, 490 (1978) [emphasis supplied]; see also, e.g., Strickland  v. Washington, 466 U.S. 668, 692 (1984); United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992); Fitzpatrick v. McCormick, 869 F.2d 1247, 1251-52 (9th Cir. 1989), cert. denied, 493 U.S. 872 (1990).

[257] Holloway, 435 U.S. at 490.

[258] Strickland, 466 U.S. at 692; Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994).

[259] Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-1719; United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990), cert. denied, 498 U.S. 846, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990); Ellison, 798 F.2d at 1107.  See Mathis v. Hood, 937 F.2d 790, 795 (2d Cir. 1991) (requiring automatic reversal if “‘counsel actively represented conflicting interests’ and . . . ‘an actual conflict of interest adversely affected his lawyer’s performance’” (internal quotations and citation omitted)); see also Stoia v. United States, 22 F.3d 766, 771 (7th Cir. 1994) (stating that “‘[l]egal representation which is adversely affected by actual conflicts of interest is never considered harmless error’” (quoting United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991)); McConico v. Alabama, 919 F.2d 1543, 1548 (11th Cir. 1990); cf. Penson v. Ohio, 488 U.S. 75, 88-89, 109 S.Ct. 346, 354-55, 102 L.Ed.2d 300 (1988) (holding that a total denial of counsel is legally presumed to result in prejudice and can never be considered harmless error).

[260] United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).