these rulings represent an adverse determination on the merits of petitioner's claim of conflict of interest which is now binding on this court. Respondent errs.
Simply stated, this argument is foreclosed by the prior opinion of the Supreme Court. In the course of assessing the procedural history of this case, the Court in Sullivan noted that the P.C.H.A. court "did not pass directly on the claim that defense counsel had a conflict of interest..."
Furthermore, the Court emphasized this point when it addressed the issue of the applicability of the presumption of correctness under § 2254(d) to the state court's ruling that no multiple representation occurred. It stated: "... the state court that heard evidence on Sullivan's petition for collateral relief did not decide whether defense counsel had represented conflicting interests." Cuyler v. Sullivan, supra, 446 U.S. at 341 n.5, 100 S. Ct. at 1714 n.5. Where the decision of the state trier is not on the merits of the constitutional issue, no fact-findings could have been made.
Hence, no relevant finding of fact, which can be accorded the presumption of correctness under § 2254(d), was made by the P.C.H.A. court because that court did not squarely address the conflict of interest claim. Accordingly, as in the Supreme Court, the respondent must rely solely on the findings articulated in the opinion of the Pennsylvania Supreme Court to support its argument that Sullivan received as full and fair hearing on his constitutional claims.
Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981) dictates that the "presumption of correctness" mandated by § 2254(d) must be applied to factual determinations made by state appellate courts.
Relying on Sumner, the respondent argues that the determination of the Pennsylvania Supreme Court that "there is absolutely no evidence that a conflict existed"
is binding on this court. The decision in Sumner does not, however, abrogate the requirements set forth in Townsend v. Sain, supra, and thereafter embodied in § 2254(d) which mandate an evidentiary hearing. Thus, the relevant inquiry again is whether any of the factors enumerated in Townsend are present, rendering the hearing Sullivan received in the appellate court incomplete or unfair.
In his second appeal to the Pennsylvania Supreme Court, the petitioner's claim of conflicted trial counsel was resolved against him on the merits. The court premised its holding on its view that there was "no dual representation in the true sense of the term."
The court viewed Peruto as merely assisting DiBona who made all decisions relevant to the defense. And on the basis of Judge DiBona's testimony that no conflict existed, the court found no basis for the claim of conflict of interest. Logically, therefore, the court had no occasion to evaluate Peruto's testimony concerning the compromise of his trial decisions due to consideration of the remaining co-defendants because the court simply did not view Peruto as actively representing Sullivan. Of course, the court's finding that no dual representation existed, which was adopted by this court, was reversed by the Third Circuit
and affirmed by a unanimous Supreme Court.
As controlling fact-finding under § 2254(d), the legal significance of this original holding of the Pennsylvania high court is nil. The findings of the state Supreme Court are infected by legal error, i.e., the erroneous view that no multiple representation occurred. The legal error which occurred in the state court is not error in the sense of application of an incorrect constitutional standard. See e.g., Harris v. Oliver, supra, 645 F.2d at 329. This legal error can be characterized as an erroneous legal conclusion as to the first stage of the dual inquiry in a conflict of interest case, i.e., (1) whether multiple representation occurred, and (2) whether an actual conflict of interest was present which adversely affected the lawyer's performance. Nevertheless, legal error in assessing the merits of the first inquiry has the same effect as application of an incorrect legal standard. "Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner's contentions." Townsend v. Sain, supra, 372 U.S. at 314, 83 S. Ct. at 757. It is the reliability of the prior state process which is speculative. Thus, any historical facts implicitly found by the state appellate court are contaminated by this legal error, and reconstruction of the facts from an erroneous legal holding is impossible. See Townsend v. Sain, supra, 372 U.S. at 314, 83 S. Ct. at 757; Harris v. Oliver, supra, 645 F.2d at 330-31.
Moreover, the presumption of correctness mandated by § 2254(d) attaches only to determinations of historical fact. See Cuyler v. Sullivan, supra, 446 U.S. at 342, 100 S. Ct. at 1715; White v. Finkbeiner, supra, 570 F.2d at 201. As I have previously noted, the P.C.H.A. court neither addressed the constitutional issue presented herein, nor made any relevant findings of fact.
Recitals of fact by the appellate court unsupported by specific findings of a fact-finding tribunal are generally not dispositive of contested fact issues raised in federal habeas corpus proceedings. Id. And, in this instance, the state appellate court similarly made no findings of relevance. Furthermore, the legal conclusion of the Pennsylvania Supreme Court that no conflict of interest existed is freely reviewable by this court. See Mata v. Sumner, supra, 649 F.2d at 717.
More precisely, the presumption of correctness is inapplicable to the state appellate court's holding because that court never addressed the second prong of the dual inquiry which is the subject of the remand from the Supreme Court. Since the state supreme court merely found no dual representation, it did not make any findings of fact with regard to Peruto's role as counsel. Simply put, the state record is devoid of any finding of historical fact concerning the issue of whether an actual conflict of interest existed adversely affecting the performance of co-counsel Peruto. This issue is legally distinct from the question of whether Judge DiBona labored under a conflict of interest.
Consequently, the absence of relevant findings of fact on this issue dictates that an evidentiary hearing must be held. Townsend v. Sain, supra, 372 U.S. at 318, 83 S. Ct. at 759 ("the duty to try the facts anew exists in every case in which the state court has not after a full hearing reliably found the relevant facts"). See also, Guice v. Fortenberry, supra, 661 F.2d at 506; Harris v. Oliver, supra, 645 F.2d at 330-31; Walker v. Wilmot, 603 F.2d 1038, 1041-42 (2d Cir. 1979), cert. denied, 449 U.S. 885, 101 S. Ct. 239, 66 L. Ed. 2d 111 (1980); Taylor v. Cardwell, 579 F.2d 1380, 1382-83 (9th Cir. 1978); Jackson v. Estelle, 570 F.2d 546, 547 (5th Cir. 1978); White v. Finkbeiner, supra, 570 F.2d at 201.
In a final attempt to salvage the opinion of the Pennsylvania Supreme Court under § 2254(d), the respondent argues, relying upon LaVallee v. Delle Rose, 410 U.S. 690, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973)
that the opinion of the Pennsylvania high court resolved all credibility issues concerning the conflict claim against the petitioner. I do not find it necessary to discuss LaVallee at length since it is clear that the state appellate court did not resolve all factual contentions against the respondent.
The P.C.H.A. court record is replete with clashes between the testimony of Peruto and DiBona as well as Sullivan concerning the tactical decisions made at trial. Not only did the P.C.H.A. court credit Peruto's testimony
in certain circumstances, but the state appellate court also chose to credit his testimony regarding his role in the defense. 32 Thus, the record in this case, in contrast to that in LaVallee, demonstrates significant conflicts in testimony critical to petitioner's constitutional claims which were not resolved without doubt by the state appellate court. Moreover, it cannot seriously be argued that the state court rejected Peruto's testimony in toto since the court did not reach the question of whether his stewardship was afflicted with a conflict of interest.
In sum, I hold that: (1) no relevant fact-finding took place in the P.C.H.A. hearing since that court did not decide the constitutional claim on the merits; and (2) the merits of the factual dispute at issue herein were not resolved since the erroneous legal conclusion of the state appellate court that no multiple representation occurred precluded the possibility of relevant fact-finding on the constitutional issues presented on remand to this court.