BURDEN v. ZANT, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Decided February 19, 1991
At the time that they were charged with several murders, petitioner Burden and his nephew, Henry Dixon, were both represented by attorney Kondritzer. A different attorney represented Burden at his trial. However, Dixon was never indicted, and he provided the sole evidence linking Burden to the murders. Both Dixon and the prosecutor acknowledged that Dixon testified under a grant of immunity, a fact credited by the trial court in its mandatory post-trial report. Burden was convicted and exhausted his state remedies. Subsequently, he filed a petition for a writ of habeas corpus in the Federal District Court, alleging that he did not receive effective assistance of counsel because his counsel labored under a conflict of interest. The court denied relief on the ground that he had not shown an adverse impact on the representation of his trial counsel, and the Court of Appeals affirmed. That court rejected Burden's argument that his interest was adversely affected by Kondritzer's negotiation of an immunity agreement for Dixon, finding that there was no evidence that Dixon testified under such an agreement.
In rejecting Burden's conflict of interest claim, the Court of Appeals improperly failed to give a presumption of correctness to a state court factual finding as required by 28 U.S.C. 2254(d). A habeas court may not disregard the presumption unless it expressly finds that one of the enumerated exceptions to 2254(d). A habeas court may not disregard the presumption unless it expressly finds that one of the enumerated exceptions to 2254(d) is met, and it explains the reasoning in support of its conclusion. See Sumner v. Mata, 449 U.S. 539, 549 , 551. However, the Court of Appeals neither mentioned the trial court's finding that Dixon received immunity nor explained why the finding was not entitled to a presumption of correctness. Respondent's contention that Burden waived reliance on 2254(d) in the Court of Appeals by failing to sufficiently emphasize the trial court's finding mischaracterizes the record, since the immunity agreement was the central fact supporting his conflict of interest claim.
Certiorari granted; 903 F.2d 1352, reversed and remanded.
Petitioner argues that the Court of Appeals, in rejecting his conflict-of-interest claim, improperly failed to give a presumption [498 U.S. 433, 434] of correctness to a state court factual finding, in violation of 28 U.S.C. 2254(d). We agree, and accordingly the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
On August 1, 1981, petitioner was arrested on a charge of burglarizing his sister's house. Kenneth Kondritzer, a local public defender in a two-attorney public defender's office, was appointed soon thereafter to represent petitioner. While petitioner was awaiting trial on the burglary charge, his nephew, Henry Lee Dixon (the son of the alleged burglary victim), gave a statement to the police implicating petitioner in the unsolved 1974 murders of a woman and her three children. Based upon Dixon's statement, the police obtained warrants on or about September 15, 1981, charging both petitioner and Dixon with the murders. Kondritzer began representing Dixon at about that time, while continuing to represent petitioner. Dixon, however, was never indicted for the murders. At a preliminary hearing on November 19, 1981, in which Kondritzer appeared on Dixon's behalf, the judge ruled that, although the State had sufficient evidence to hold Dixon as a material witness against Burden, it did not have sufficient evidence to hold him for the murders.
Petitioner was indicted for the murders on December 7, 1981, while he was still represented by Kondritzer. Kondritzer, however, left the public defender's office at the end of December, 1981, and the other public defender in the office, Michael Moses, assumed responsibility for representing petitioner.
After a trial in March, 1982, petitioner was convicted of four counts of murder, and was sentenced to death. Dixon's testimony at trial provided the sole evidence directly linking petitioner to the murders. 903 F.2d 1352, 1356-1357 (CA11 1990). In addition, both Dixon on cross-examination and the prosecutor in his closing argument acknowledged that Dixon [498 U.S. 433, 435] was testifying under a grant of immunity, 1 a fact expressly credited by the trial court in its mandatory post-trial report, see Record, Respondent's Exh. 1, p. 54. 2
After exhausting his state remedies, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, alleging, inter alia, that he did not receive effective assistance of counsel because his counsel labored under a conflict of interest. Although the District Court credited petitioner's contention that Dixon had received immunity in exchange for his agreement to testify against petitioner, 690 F.Supp. 1040, 1045 (1988), it nevertheless denied relief because petitioner had not shown an adverse impact on the representation of his trial counsel, Moses. Ibid.
On appeal, the United States Court of Appeals for the Eleventh Circuit determined that the record was not sufficient for it to evaluate petitioner's conflict-of-interest claim, and therefore remanded to the District Court for an evidentiary hearing on that issue, while retaining jurisdiction over the case. 871 F.2d 956 (1989). At the hearing, Kondritzer testified that, while he was representing both petitioner and [498 U.S. 433, 436] Dixon on the murder charges, he reached "an understanding" with the district attorney that "as long as [Dixon] testified [against petitioner], nothing would happen to him." Civ. Action No. 88-6-3-MAC (MD Ga., Sept. 20, 1989), p. 4. The District Court nevertheless concluded that petitioner had received representation free from a conflict of interest.
The case then returned to the Court of Appeals, which affirmed the District Court's denial of habeas relief. Although the court recognized the potential conflict of interest in Kondritzer's simultaneous representation of petitioner and Dixon, it held that "the conflict never became actual in the sense that Kondritzer's representation of Dixon's interests required him to compromise [petitioner's] interests." 903 F.2d, at 1359. In addressing petitioner's argument that the dual representation adversely affected petitioner's interests because Kondritzer negotiated an immunity agreement for Dixon, the Court of Appeals stated:
Respondent maintains that petitioner "waived" reliance on 2254(d) in the Court of Appeals by failing sufficiently to emphasize the trial court's finding that Dixon received immunity. This contention mischaracterizes the record. In his first brief to the Court of Appeals, before remand, petitioner repeatedly stated, in support of his conflict-of-interest argument, that Dixon had testified under a grant of immunity. See Brief for Petitioner-Appellant in No. 88-8619 (CA11), pp. 5, 6, 8, 11, 13-14, 15, 17, 22, 23. Indeed, that factual assertion was the crux of petitioner's argument. In his supplemental letter brief after remand, the immunity agreement was again the central fact supporting his conflict-of-interest claim. The brief began by stating that petitioner did not understand why there was a dispute over Dixon's immunity, since the state trial judge had specifically found that Dixon had testified under a grant of immunity. Letter Memorandum for Petitioner-Appellant in No. 88-8619 (CA11), p. 1; see also id., at p. 9. Petitioner then asserted that the state court's finding was "entitled to the presumption of correctness." [498 U.S. 433, 438] Ibid. Thus, it seems clear that petitioner adequately raised the argument below.
Consequently, we reverse and remand so that the Court of Appeals may consider petitioner's conflict-of-interest claim free from its erroneous failure to credit the state trial court's finding that Dixon testified under a grant of immunity.
It is so ordered.
[ Footnote 2 ] Under Ga.Code Ann. 17-10-35(a) (1990), the trial court must file a report in every case in which the death penalty is imposed. Designed to facilitate review by the Georgia Supreme Court, this report must include, inter alia, the trial judge's assessment of the prosecution's case at trial. See generally Gregg v. Georgia, 428 U.S. 153, 167 -168 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). The report in petitioner's case notes that Dixon was "[t]he witness most damaging to the defendant's case." Record, Respondent's Exh. 1, p. 54. It also states that "Dixon was granted immunity from prosecution and the jury was properly informed of this fact and an appropriate charge was given by the court to the jury." Ibid.
[ Footnote 3 ] Section 2254(d) provides in pertinent part: