C. DARNELL JONES, II, District Judge.
Presently before this Court is Petitioner Frank Robert Chester's claim that throughout his murder trial, counsel was laboring under a conflict of interest that effectively denied Petitioner his 6th Amendment right to counsel.
In 1987, Petitioner and his co-defendant were charged with the brutal slaying of Anthony Milano in Bristol, Pennsylvania. On March 22, 1988, Petitioner retained Attorney Thomas Edwards, who entered his appearance the following day. On March 29, 1988, Edwards was arrested for driving under the influence ("DUI"). On May 20, 1988, Petitioner was found guilty and the death sentence was imposed. It wasn't until June 7, 1988, after Edwards had already filed post-trial motions on behalf of Petitioner that Edwards was formally charged with DUI and was being prosecuted by the same Assistant District Attorney and before the same judge as those involved in Petitioner's murder trial. On July 15, 1988, while Petitioner's post-trial motions were pending before Judge Biester, Edwards pled "not guilty" to the DUI charge, in front of Judge Biester. Because this was Mr. Edwards's first DUI offense, he was eligible for the Accelerated Rehabilitative Disposition Program (ARD). ARD was a diversionary program of leniency offered only to first time offenders and the District Attorney's office had sole authority in choosing whether to allow Mr. Edwards into the program. On September 15, 1988, Mr. Edwards was admitted into the ARD program by the Honorable Edward G. Biester, Jr., On June 29, 1989, Judge Biester denied Petitioner's Post-Verdict Motions.
Although Petitioner's claim of a conflict of interest is primarily based upon the fact that Edwards had a criminal charge pending against him in Bucks County at the same time that he represented Petitioner, Petitioner also asks this Court to consider evidence pertaining to Edward's personal financial struggles, legal battles, post-traumatic stress syndrome, and the illness of his wife at the time of Petitioner's trial, to demonstrate that Edwards's loyalties were divided and that a conflict of interest existed which adversely affected his representation and the ultimate outcome of the case. For the reasons set forth hereinbelow, Petitioner's conflict of interest claim shall be denied.
A. The law of "Conflict of Interest"
Early Supreme Court cases regarding conflicts of interest focused on "multiple representation" claims, where one attorney was representing multiple co-defendants. If a party could show that multiple representation led to ineffective assistance of counsel, prejudice was presumed regardless of whether it was independently shown. Holloway v. Arkansas, 435 U.S. 475, 489 (1978).
Two years later, the Supreme Court addressed two issues reserved in Holloway : (1) whether a trial judge must inquire into the propriety of multiple representation even though no party lodges an objection, and (2) whether the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel. Cuyler v. Sullivan, 446 U.S. at 335, 345 (1980). First, the Court held that a trial court does not need to perform a sua sponte inquiry into conflict of interest unless "the trial court knows or reasonably should know that a particular conflict exists." Sullivan, 446 U.S. at 349. Second, the mere possibility of conflict is not sufficient; rather, a defendant must show that his counsel actively represented conflicting interests. Sullivan, 446 U.S. at 350.
The Third Circuit clarified its understanding of Sullivan by requiring a defendant to prove that an alleged conflict of interest on the basis of mixed representation adversely affected counsel's performance. U.S. v. Gambino, 864 F.2d 1064, 1072 (3d Cir. 1988). To prove this adverse effect on counsel's performance, a defendant must (1) demonstrate that some plausible alternative defense strategy or tactic might have been pursued; and (2) establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests. Gambino, 864 F.2d at 1070 (quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985)).
In 2002, the Supreme Court expanded the Sullivan test to conflict of interest claims where the defense counsel was simultaneously representing the victim. Mickens v. Taylor, 535 U.S. 162 (2002). The court established that to prove actual conflict of interest, a defendant must show that it was a "conflict that affected counsel's performance -as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171. "[D]efects in assistance that have no probable effect upon the trial's outcome do not establish a constitutional violation." Mickens, 535 U.S. at 166.
Therefore, the threshold question becomes whether or not the trial court knew or had reason to know that a particular conflict existed and if so, whether the trial court performed the appropriate inquiry. Sullivan, 446 U.S. at 349. When the trial judge is not aware of the conflict, and thus not obligated to inquire, prejudice will be presumed only if the conflict has significantly affected counsel's performance-thereby rendering the verdict unreliable, even though Strickland prejudice cannot be shown." Mickens, 535 U.S. at 172-73. To prove an actual conflict of interest, a defendant must show that the conflict adversely affected the defense and had a probable effect on the trial's outcome. Mickens, 535 U.S. at 171; Gambino, 864 F.2d at 1072.
While Mickens expanded the definition of conflict of interest to include the issue of defense counsel also representing the victim, the court did not explicitly establish whether the test in Sullivan should be expanded to all conflict of interest claims. Of particular note, the Supreme Court has not accepted any case based on a conflict of interest theory related to the defense counsel's pending criminal charges. As such, the determination for whether or not to apply the Holloway / Sullivan / Mickens test to a ...