Appeal from the United States District Court for the Eastern District of Pennsylvania.
Aldisert, Hunter, and Weis, Circuit Judges.
Two primary questions are presented by this appeal and cross appeal from the district court's conditional grant of a state prisoner's petition for writ of habeas corpus: (1) whether there was sufficient evidence to support petitioner's conviction for first degree murder; and (2) whether representation by two attorneys of both the petitioner and his co-defendants created a conflict of interest violative of petitioner's sixth amendment right to effective assistance of counsel. We agree with the district court that a writ of habeas corpus should issue because even though there was sufficient evidence to support petitioner's conviction, there was proof that an actual conflict of interest adversely affected his attorneys' performance. We affirm the district court on that basis.
Appellant John Sullivan was indicted with Gregory Carchidi and Anthony DiPasquale for the first degree murders of John Gorey and Rita Janda. The victims, a labor union official and his companion, were fatally shot in Gorey's second floor office at the Philadelphia headquarters of Teamsters' Local 107. Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of the testimony of Francis McGrath -- a janitor at the union hall where the bodies were discovered. McGrath testified: (1) that when he came to work on the evening of June 17, 1966, he saw Sullivan's car parked next to DiPasquale's in the lot adjacent to the union hall; (2) that he saw Sullivan at the window of a second floor conference room normally used by other union officials; (3) that after he entered the hall, Sullivan told him to leave, but he ignored the suggestion; (4) that he saw Gorey and Janda enter the building, at which time Sullivan again urged him to leave, but he again refused; (5) that Carchidi, another janitor on duty that night, also urged him to leave; (6) that shortly after these warnings, he heard sounds like firecrackers going off in rapid succession, and Carchidi told him, not in the presence of Sullivan, to "Get out of the building and don't say nothing," whereupon McGrath left the building; and (7) that when he left, cars belonging to DiPasquale, Gorey, Carchidi, and Sullivan were in the lot, but that when he returned fifteen minutes later, only Gorey's car remained, and he found the offices closed, the conference room locked, and the lights out in the union hall. The bodies of Gorey and Janda were discovered the next morning, shot four and six times respectively. Evidence established the time of death to be about 7:15 p.m. on June 17, 1966, or about the time McGrath heard the firecracker-like sounds.*fn1
At the close of the Commonwealth's case, the defense rested. The decision not to present evidence was made jointly by Sullivan and his attorneys, G. Fred DiBona and A. Charles Peruto, who also represented Carchidi and DiPasquale throughout the state proceedings following their indictments. The jury found Sullivan guilty and fixed his penalty at life imprisonment. Sullivan's post-trial motions were denied, and an equally divided court affirmed his conviction. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971). After obtaining new counsel, Sullivan twice sought reconsideration of that decision, and both applications were denied. See Commonwealth v. Sullivan, 472 Pa. 129, 180, 371 A.2d 468, 492 (1977) (Pomeroy, J., concurring and dissenting).
Sullivan then sought collateral relief under the Pennsylvania Post-Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9551 (Purdon 1982), alleging, inter alia, that (1) the admission into evidence at trial of color slides of the victims' bodies violated his constitutional right to due process; (2) there was insufficient evidence to support his conviction; and (3) his defense attorneys had a conflict of interest that denied him his sixth amendment right to effective assistance of counsel. In five days of evidentiary hearings, the trial court took testimony from Sullivan, Carchidi, DiBona, and Peruto. It then held that Sullivan could take a second direct appeal because counsel had not assisted him adequately in the preparation of his first appeal. The court did not pass directly on the claim that defense counsel had a conflict of interest. It specifically reserved Sullivan's claim regarding the admission of color slides into evidence for consideration in the new appeal.
The Pennsylvania Supreme Court denied collateral relief and thereby re-affirmed Sullivan's original conviction. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). It found, inter alia, that: (1) the state trial court did not abuse its discretion in admitting the color slides into evidence; (2) Sullivan's conviction was supported by sufficient evidence; and (3) there was no multiple representation necessary to prove a conflict of interest because DiBona represented Sullivan and Peruto represented Carchidi and DiPasquale. It supported its conflict of interest determination by crediting DiBona's testimony at the post-conviction hearing that "his stewardship was in no way affected by the consideration of the co-defendant's cases but was solely a product of what he considered to be the best course in his representation of Sullivan." 472 Pa. at 161, 371 A.2d at 483.
Sullivan next brought a petition under 28 U.S.C. § 2254 for federal habeas corpus relief in district court, raising the same claims that we noted he raised in his state court petition for post-conviction relief. The habeas petition was referred to a magistrate who rejected most of Sullivan's claims but found that defense counsel had represented conflicting interests. The district court accepted all of the magistrate's recommendations except his conflict of interest determination. Sullivan v. Cuyler, Civ. No. 77-2527 (E.D. Pa. Feb. 2, 1978). It chose instead to accept the Pennsylvania Supreme Court's conclusion that there had been no multiple representation.
On appeal, addressing only the conflict of interest issue, we held that there was sufficient involvement by both attorneys in the trials of each co-defendant to constitute multiple representation as a matter of law and that the existence of at least a possibility of a conflict of interest therefrom was sufficient to constitute a violation of petitioner's sixth amendment right to effective assistance of counsel. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979). The Supreme Court reversed. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). It agreed with us that DiBona and Peruto represented all three defendants, but determined that a showing of only a potential conflict of interest therefrom was insufficient to taint a criminal conviction. The Court required a defendant to demonstrate that "an actual conflict of interest adversely affected his lawyer's performance" before a violation of the sixth amendment could be established. Id. at 348. The Court remanded the cause to us, and we in turn remanded it to the district court, directing it to consider first the sufficiency of evidence question under the new standard formulated in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979), and to issue the writ without further inquiry into the remaining grounds of the petition if it concluded that the evidence was insufficient to support Sullivan's conviction. United States ex rel. Cuyler v. Sullivan, 631 F.2d 14 (3d Cir. 1980). We further instructed that if the conflict of interest issue had to be reached, the district court should "reexamine its finding of no actual conflict with a certainty of knowledge of the existence of 'dual representation ' and with the benefit of the Supreme Court's pronouncements in Cuyler v. Sullivan. . . ." Id. at 17.
On remand, the district court again referred the case to a magistrate, who concluded that, based on the facts found by the Pennsylvania Supreme Court, there was sufficient evidence under Jackson to support Sullivan's conviction. The magistrate then addressed the conflict of interest question. He conducted an evidentiary hearing on the issue because he found the state court record deficient. Based primarily on testimony by Peruto concerning counsel's decision to rest Sullivan's defense without allowing Carchidi to testify, the magistrate found that there was sufficient evidence of an actual conflict of interest that adversely affected counsel's performance to justify issuance of the writ.
The district court, after consideration of the parties' objections, adopted the magistrate's findings and granted Sullivan's petition for writ of habeas corpus. It then stayed execution of the writ for sixty days to allow the Commonwealth to either appeal or relist the case for trial. United States ex rel. Sullivan v. Cuyler, 553 F. Supp. 1236 (E.D. Pa. 1982). The Commonwealth appealed, and Sullivan cross appealed.
The Commonwealth, at No. 82-1829, argues that the district court (1) erred in ordering an evidentiary hearing on the issue of conflict of interest because it was bound by the facts found by the state courts in post-conviction review; (2) violated 28 U.S.C. § 636(b)(1) and article III of the Constitution by delegating the conduct of that hearing to a magistrate; (3) violated 28 U.S.C. § 636(b)(1) by failing to make a true de novo review of the record in deciding the merits of the parties' objections to the magistrate's recommendation; and (4) erred in finding evidence of actual conflict of interest that adversely affected counsel's performance sufficient to justify awarding petitioner habeas relief for a violation of his sixth amendment right to effective assistance of counsel.
In his cross appeal, at No. 83-1040, Sullivan contends that the district court both improperly relied on an augmented trial record and misapplied Jackson to conclude that there was sufficient evidence to support his conviction. He further argues that the district court violated his fundamental constitutional right to a fair trial by admitting into evidence color slides of the victims' bodies. The Commonwealth counters that because Sullivan failed to raise this latter claim, in its constitutional posture, in state court, his entire petition must be dismissed under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).
Two standards of review govern our consideration of these contentions. Our review of the Commonwealth's contention that the district court's finding of actual conflict of interest is error is subject to the clearly erroneous standard. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). Our review of the remaining contentions, which implicate the interpretation and application of legal ...