UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANK RAY CHANDLER,
Petitioner-Appellant,
v.
No. 03-6
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-99-668-1)
Argued: October 28, 2003
Decided: March 5, 2004
Before WILKINS, Chief Judge, and WIDENER and
SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
opinion, in which Judge Widener and Judge Shedd joined.
COUNSEL
ARGUED: S. Mark Rabil, Assistant Capital Defender, Winston-
Salem, North Carolina; John Clark Fischer, RANDOLPH &
FISCHER, Winston-Salem, North Carolina, for Appellant. Valerie
Blanche Spalding, Special Deputy Attorney General, NORTH CAR-
OLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
2 CHANDLER v. LEE
Appellee. ON BRIEF: Roy Cooper, Attorney General of North Caro-
lina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
WILKINS, Chief Judge:
Frank Ray Chandler appeals an order of the district court denying
his petition for a writ of habeas corpus, see 28 U.S.C.A. § 2254 (West
1994 & Supp. 2003), in which he challenged his conviction and death
sentence for the murder of 90-year-old Doris Poore.1 Finding no error,
we affirm.
I.
Poore’s body was found on the morning of December 11, 1992.
She was lying on her bed with a pool of blood underneath and around
her head. Although a sheet had been pulled over Poore, her pajama
top was open and she was naked from the waist down; her underwear
and pajama bottoms were wadded together near her feet. There were
smeared bloody fingerprints on her abdomen. A subsequent autopsy
revealed that Poore was killed by a single, massive blow to the head.
At trial, Chandler was linked to the crime by circumstantial evi-
dence. Chandler’s palm and fingerprints were found on the door lead-
ing into Poore’s kitchen. Chandler’s cousin, with whom Chandler
spent the night of December 10-11, testified that Chandler had left the
house for a time late at night; subsequently, Chandler asked his cousin
not to tell anyone he had left the house.
1
Chandler named R. C. Lee, Warden of Central Prison in Raleigh,
North Carolina, as Respondent. We refer to Respondent as "the State."
CHANDLER v. LEE 3
The prosecution also presented the testimony of Jeffrey Kyle Wil-
son, who was Chandler’s cellmate for several months following
Chandler’s arrest. Wilson testified that Chandler described the murder
to him. According to Wilson, Chandler stated that he broke into the
house and encountered Poore in the kitchen. He struck her on the
head and, not realizing that he had killed her, laid her on the bed.
When Wilson asked Chandler why Poore was naked from the waist
down (information he had learned from the newspaper), Chandler
responded that "he had never seen no old p***y." Trial Tr., Vol. V,
at 614. On direct and cross-examination, Wilson repeatedly denied
having sought or been offered any benefit in exchange for his testi-
mony, despite the fact that he had several pending charges. Wilson
did acknowledge that one of the investigating officers appeared on his
behalf at a parole revocation hearing that took place four days after
Wilson’s initial contact with police regarding Chandler. Wilson’s
parole was nevertheless revoked.
Chandler testified in his own defense, claiming that he broke into
Poore’s house because he believed he could find marijuana there.
After knocking on a window, the garage door, and the back door,
Chandler entered the house through the basement door and proceeded
upstairs to the kitchen. Chandler testified that he saw something out
of the corner of his eye and had turned to leave when someone behind
him screamed. He swung his left arm as he turned around, striking
Poore, who fell against him. Chandler stated that he carried Poore to
her bed and then went into the bathroom to wash his hands; he found
Poore’s pajama bottoms and underwear near the toilet and placed
them in the bed with her before he left.
A jury convicted Chandler of first-degree murder, first-degree bur-
glary, and attempted larceny.2 Following a capital sentencing hearing,
the jury recommended, and the trial judge imposed, a sentence of
death for the murder conviction. The convictions and sentence were
affirmed on direct appeal. See State v. Chandler, 467 S.E.2d 636
(N.C.), cert. denied, 519 U.S. 875 (1996). As is relevant here, the
North Carolina Supreme Court rejected Chandler’s claim that the trial
2
The jury acquitted Chandler of attempted first-degree rape and
attempted first-degree sexual offense.
4 CHANDLER v. LEE
court erred in refusing to submit a particular statutory mitigating cir-
cumstance to the jury. See id. at 644-45.
Chandler thereafter filed a motion for appropriate relief (MAR),
which was assigned to the same judge who had presided over Chan-
dler’s trial. Chandler claimed, inter alia, that (1) the prosecution had
knowingly allowed Wilson to testify falsely, (2) the prosecution failed
to disclose evidence that would have impeached Wilson’s testimony,
and (3) one of his attorneys had previously represented Wilson, and
thus was laboring under a conflict of interest in violation of Chan-
dler’s Sixth Amendment rights. After conducting a hearing that
included the presentation of evidence, the MAR court denied relief.
Chandler filed this federal habeas action on August 12, 1999, rais-
ing the claims described above and one additional claim. The matter
was referred to a magistrate judge, who recommended that the peti-
tion be dismissed. After considering Chandler’s objections to the
magistrate judge’s recommendation, the district court denied relief.
See Chandler v. French, 252 F. Supp. 2d 219, 224 (M.D.N.C. 2003)
(adopting recommendations of magistrate judge). We subsequently
granted a certificate of appealability, see 28 U.S.C.A. § 2253(c) (West
Supp. 2003); 4th Cir. R. 22(a), as to the following issues: (1) whether
the prosecution knowingly allowed Wilson to testify falsely; (2)
whether the prosecution withheld exculpatory evidence concerning
Wilson’s testimony; (3) whether an actual conflict of interest
adversely affected the performance of one of Chandler’s attorneys;
and (4) whether the refusal to submit a particular mitigating circum-
stance to the jury violated Chandler’s constitutional rights.3
Because Chandler’s claims were adjudicated on their merits by the
state courts of North Carolina, our review is limited to determining
whether the decision of that court "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court." 28 U.S.C.A. § 2254(d)(1). A state
court decision is "contrary to" Supreme Court precedent in either of
two situations: (1) when "the state court applies a rule that contradicts
3
We denied a certificate of appealability as to Chandler’s claim that the
trial court provided the jury an unconstitutionally restrictive definition of
mitigating evidence.
CHANDLER v. LEE 5
the governing law set forth in [Supreme Court] cases," or (2) when
"the state court confronts a set of facts that are materially indistin-
guishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [the Court’s] precedent." Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A state court decision rests on
an "unreasonable application" of clearly established Supreme Court
precedent when "the state court identifies the correct governing legal
principle from [the] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case." Id. at 413.
II.
Chandler raises two claims related to Wilson’s testimony. First, he
maintains that the prosecution knowingly allowed Wilson to testify
falsely regarding his motives for testifying against Chandler. See
Napue v. Illinois, 360 U.S. 264, 269 (1959). Second, Chandler claims
that the prosecution failed to produce several items of evidence that
would have allowed him to impeach Wilson’s testimony. See Brady
v. Maryland, 373 U.S. 83, 87 (1963). We deny relief as to both of
these claims.
A. Facts
As noted previously, defense counsel cross-examined Wilson at
some length concerning his motivation for testifying against Chan-
dler. In response to these questions, Wilson repeatedly denied having
asked for lenience with respect to his pending charges. See, e.g., Trial
Tr. Vol. V. at 623 ("I never brought my charges up, never."); see also
id. at 611 (direct examination) ("I ain’t asked these people [the prose-
cution] for personal gain whatsoever. I never brung [up] my charges
. . . in any of our conversations."). Additionally, on direct and cross-
examination Wilson denied having been promised any benefit in
exchange for his testimony. Wilson did acknowledge, however, that
one of the investigating officers, Special Agent Ron Perry, had
appeared at Wilson’s parole revocation hearing and informed the
Parole Board that Wilson had provided information regarding the
Poore murder.
In support of his Napue and Brady claims, Chandler points to a
number of items of evidence that were not disclosed by the prosecu-
6 CHANDLER v. LEE
tion. Three of these items are relevant to both claims: a question—
"What’s in it for me?" J.A. 200 (internal quotation marks omitted)—
Wilson asked before giving his initial statement to law enforcement
officers; and two police reports resulting from the initial interview of
Wilson, both of which listed Wilson’s pending charges. The other
items of evidence relate only to the Brady claim and are listed there.
B. Napue Claim
A conviction acquired through the knowing use of perjured testi-
mony by the prosecution violates due process. See Napue, 360 U.S.
at 269. This is true regardless of whether the prosecution solicited tes-
timony it knew to be false or simply allowed such testimony to pass
uncorrected. See Giglio v. United States, 405 U.S. 150, 153 (1972);
Napue, 360 U.S. at 269. The Supreme Court has held that a defendant
is entitled to relief on such a claim when "‘there is any reasonable
likelihood that the false testimony could have affected the judgment
of the jury.’"4 Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) (quoting
United States v. Agurs, 427 U.S. 97, 103 (1976)).
In his MAR, Chandler claimed that Wilson expected favorable
treatment on his pending charges in exchange for testifying against
Chandler and that the prosecution knowingly allowed him to testify
to the contrary. The MAR court rejected this claim on the merits. For
the reasons set forth below, we conclude that the ruling of the MAR
court is entitled to deference under § 2254(d).
The MAR court made a factual finding that after Wilson asked
"What’s in it for me?" Special Agent Perry informed him that while
the officers were interested in hearing what Wilson had to say regard-
ing Chandler’s involvement in the Poore murder, they could not offer
him any deals and did not want the information if it was contingent
on their providing some kind of benefit to Wilson. The MAR court
further found that the District Attorney admonished Wilson that no
sentencing concessions would be offered in exchange for Wilson’s
4
Other courts have held that a habeas petitioner alleging a Napue viola-
tion cannot obtain relief without also satisfying the harmless error stan-
dard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See, e.g.,
Mitchell v. Gibson, 262 F.3d 1036, 1062 n.13 (10th Cir. 2001).
CHANDLER v. LEE 7
testimony against Chandler. Based on these and other findings, the
MAR court determined that there was never any kind of agreement,
express or implied, that Wilson would testify in exchange for conces-
sions on his pending charges.
Chandler does not dispute these factual findings. See 28 U.S.C.A.
§ 2254(d)(2). Rather, he maintains that the MAR court misapplied the
law by assuming that Wilson’s testimony could be false for purposes
of a due process violation only if there was an agreement between
Wilson and the prosecution. See J.A. 356-57 (opinion of MAR court)
("Since no agreement existed, implied or express, the State did not
present perjured testimony through Wilson when he testified that he
had not brought up his pending charges in expectation of a sentencing
concession. Giglio does not apply to [Chandler’s] claim."). Chandler
notes that the Due Process Clause prohibits the prosecution from
knowingly presenting any false testimony, not just false denials of an
agreement between a witness and the prosecution. See, e.g., Alcorta
v. Texas, 355 U.S. 28, 31-32 (1957) (per curiam) (holding that the
prosecution violated the defendant’s due process rights by knowingly
allowing a prosecution witness to testify falsely regarding the nature
of his relationship with the victim). Chandler claims that even if no
agreement existed, Wilson nevertheless testified falsely when he
claimed that he never brought up his charges.
Chandler overlooks the fact that the MAR court made factual find-
ings that are fatal even to this narrower claim. Specifically, the MAR
court found that Wilson’s denial of having brought up his charges
referred to his discussions with the District Attorney, during which
his pending charges were not mentioned. With respect to the list of
charges in the police reports, the MAR court found that Wilson identi-
fied his pending charges in response to a question from Special Agent
Perry toward the end of the interview; the discussion of pending
charges was not initiated by Wilson.
These factual findings are entitled to deference from this court. See
28 U.S.C.A. § 2254(d)(2), (e)(1).5 In light of these findings, Wilson’s
5
Section 2254 contains two provisions relevant to the evaluation, on
federal habeas, of state-court factual determinations. First, § 2254(d)(2)
8 CHANDLER v. LEE
testimony that he did not initiate a discussion of his pending charges
is not false. Therefore, there was no due process violation.
C. Brady Claim
Suppression by the government of evidence favorable to the
defense that is material to the outcome of a trial or sentencing pro-
ceeding violates due process, irrespective of the good or bad faith of
the prosecutor. See Brady, 373 U.S. at 87. In addition to the disclo-
sure of materially exculpatory evidence, due process requires the gov-
ernment to disclose material evidence affecting the credibility of
prosecution witnesses. See Giglio, 405 U.S. at 154-55. Undisclosed
evidence is material when its cumulative effect is such that "there is
a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
Kyles, 514 U.S. at 433-34 (internal quotation marks omitted); see id.
at 436 (explaining that "suppressed evidence [must be] considered
collectively, not item by item"). A "reasonable probability" is one suf-
ficient to undermine confidence in the outcome. See id. at 434.6
With this standard in mind, we examine each of the items of evi-
dence that Chandler claims should have been disclosed to him. For
the reasons set forth below, we conclude that Chandler is not entitled
to relief.
provides that a district court may not grant habeas relief unless the adju-
dication of a claim by the state court "resulted in a decision that was
based on an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding." Second, § 2254(e)(1) pro-
vides that factual findings by the state court are presumed to be correct
and that the petitioner bears the burden of "rebutting the presumption of
correctness by clear and convincing evidence." We need not here deter-
mine the contours of the relationship between § 2254(d)(2) and
§ 2254(e)(1), because Chandler cannot show either that the state court
findings were unreasonable in light of the evidence presented or that they
were incorrect.
6
Some of Chandler’s Brady claims were not addressed by the MAR
court. To the extent Chandler’s claims were not adjudicated on the mer-
its, we conduct de novo review. See Fullwood v. Lee, 290 F.3d 663, 692
(4th Cir. 2002), cert. denied, 537 U.S. 1120 (2003).
CHANDLER v. LEE 9
1. "What’s in it for me?"
Chandler maintains that the prosecution was obligated to disclose
that Wilson had asked "What’s in it for me?" at the outset of his inter-
view concerning the Poore murder because the question demonstrates
that Wilson’s motives for testifying against Chandler were purely self-
ish.7 We agree with the magistrate judge’s assessment that in light of
the thorough cross-examination of Wilson and the fact that there was
no deal for Wilson’s testimony, this question was of limited impeach-
ment value and hence was not material. Therefore, the failure to dis-
close the statement did not violate Chandler’s due process rights.
2. Police Reports
As noted previously, two reports were generated following Wil-
son’s interview with law enforcement officers. One of these—written
by Special Agent Perry and submitted to the State Bureau of
Investigation—contained statements that, according to Chandler,
establish that Wilson initiated a discussion of his pending charges.
See, e.g., J.A. 320 ("Wilson advised that he was currently incarcerated
. . . [on] four charges of forgery."). Chandler claims that the State was
obligated to disclose these reports because they contradict Wilson’s
claim that he did not bring up his charges.
Special Agent Perry testified, and the MAR court found, that Wil-
son identified the charges pending against him in response to a ques-
tion asked by Perry. In view of this finding, the police reports would
not have been useful in impeaching Wilson’s testimony. Therefore,
the failure to disclose them did not violate Chandler’s constitutional
rights.
3. Attendance at Parole Revocation Hearing
Four days after Wilson’s initial contact with law enforcement offi-
cers concerning the Poore murder, Special Agent Perry appeared at
7
The MAR court concluded that the question did not tend to demon-
strate that Wilson’s testimony was false, but did not specifically rule con-
cerning the obligation of the prosecution to disclose the fact that Wilson
had asked the question.
10 CHANDLER v. LEE
Wilson’s parole revocation hearing and informed the parole board
that Wilson had provided information concerning the case. Following
his appearance, Special Agent Perry wrote a report that was included
in the District Attorney’s files for the prosecution of Chandler. During
a pretrial hearing, the District Attorney informed the court that
an individual . . . who may be a witness in this case . . . ask-
[ed] that he be given some consideration before the parole
board. That individual, the relief prayed for was not granted
by the parole board. But the state did, through its agents go
to the parole board and ask that it be done.
Tr. of Motions Hearing, Apr. 19, 1993, at 14. At trial, Special Agent
Perry testified that he had appeared before the parole board and had
informed the board that Wilson had provided information related to
the Poore murder. And, Wilson testified that he had asked Special
Agent Perry to appear at the hearing and that he hoped Perry’s
appearance would benefit him.
Chandler maintains that the State violated Brady by failing to dis-
close the report because its existence—and the fact that it was placed
in the District Attorney’s files for the prosecution of Chandler—
"shows that Agent Perry regarded his attendance at the parole hearing
for Mr. Wilson as part of his duties for the Chandler case." Prelim.
Br. of Petitioner-Appellant Frank Ray Chandler at 44 [hereinafter
Appellant’s Br.]. Therefore, Chandler maintains, the report had "im-
peachment value as to the motivations and expectations of Mr. Wil-
son." Id.
We conclude that the failure to disclose the report did not violate
Chandler’s constitutional rights.8 All of the information found in the
report concerning Special Agent Perry’s appearance before the parole
board was revealed at trial through Perry’s own testimony. And, the
fact that the report was placed in the Chandler prosecution file is not
material in light of Perry’s testimony that he informed the parole
8
The MAR court did not specifically address Chandler’s Brady chal-
lenge to the failure to disclose the report; we therefore consider the mat-
ter de novo.
CHANDLER v. LEE 11
board that Wilson had provided information concerning Poore’s mur-
der.
Chandler also maintains that the report should have been disclosed
because it indicated that the sheriff of Surry County—where Wilson’s
forgery charges were pending—attended the hearing. Chandler argues
that the sheriff’s presence at the hearing created in Wilson an expecta-
tion that he would receive assistance on those charges in exchange for
his testimony. There is absolutely no evidence supporting the exis-
tence of such an expectation, however. And, the mere fact that the
sheriff was present at a parole revocation hearing conducted within
his own jail does not, alone or in conjunction with the other sup-
pressed evidence, create a reasonable probability that the jury would
have either rejected Wilson’s testimony or reached a different conclu-
sion regarding Chandler’s guilt.
4. Reward Money
Following Chandler’s conviction, Wilson received half of a $5,000
reward offered by the Governor of North Carolina for information
related to Poore’s murder. The reward was publicized by a proclama-
tion, which stated in relevant part that "the payment of this reward or
any portion thereof is conditional upon the information being fur-
nished as a direct result of the issuance of this proclamation." J.A.
247. Chandler argues that the State had a duty to provide the procla-
mation to defense counsel "because it was express evidence of an
inducement for Mr. Wilson to embellish or fabricate his testimony."9
Appellant’s Br. at 45-46.
The proclamation is a public document that could have been dis-
covered by Chandler’s counsel through the exercise of reasonable dil-
igence. Therefore, the State was under no duty to disclose the
proclamation. See United States v. Kelly, 35 F.3d 929, 937 (4th Cir.
1994).
9
Because the MAR court did not address this claim, we conduct de
novo review.
12 CHANDLER v. LEE
5. Sentence in Police Report
One of the police reports written after Wilson’s interview with law
enforcement officers contained the sentence, "Chandler never said
that he touched or fondled [Poore] in any way." J.A. 327. The MAR
court found that the sentence was properly interpreted to mean that
Chandler had never said anything one way or the other about fondling
Poore. Based on this finding, the court concluded that the State’s fail-
ure to disclose the statement did not violate Chandler’s due process
rights. In light of the factual finding by the MAR court—which Chan-
dler fails to rebut—this ruling is entitled to deference under
§ 2254(d)(1).10
6. Lab Report
During Chandler’s trial, both the prosecution and the defense were
in possession of a letter purportedly written by Wilson.11 The letter
stated that Wilson had never spoken to a district attorney or the court
concerning Chandler, that Wilson would not testify at trial, and that,
if questioned, Wilson would say that he lied "concerning pending
charges." J.A. 330. A lab report dated July 13, 1993—during Chan-
dler’s trial—stated that there was sufficient similarity between the let-
ter and known samples of Wilson’s writing "to warrant a degree of
belief" that Wilson wrote the letter. Id. at 329 (emphasis omitted).
Wilson denied writing the letter both prior to trial and during the
MAR hearing. Chandler did not attempt to make any use of the letter
during trial. The MAR court rejected Chandler’s Brady claim regard-
ing the nondisclosure of the report, concluding that the report did not
have significant impeachment value.
Chandler maintains that the State should have turned over the lab
report because its disclosure could have prompted defense counsel to
obtain further analysis which might have connected Wilson to the let-
10
Chandler argues that the interpretation of the sentence was a matter
for the trial jury. Even if this is so, the interpretation of the statement by
the MAR court amounts to a predictive judgment regarding how a rea-
sonable jury would construe the statement.
11
The provenance of the letter and how it came to be in the parties’
files are mysteries.
CHANDLER v. LEE 13
ter more conclusively. See Maynard v. Dixon, 943 F.2d 407, 418 (4th
Cir. 1991). Even if this is so, Chandler has failed to demonstrate prej-
udice because there is no evidence that further analysis would have
conclusively established Wilson as the author of the note. Addition-
ally, it is questionable whether such analysis would be admissible to
impeach a denial of authorship by Wilson. See N.C. R. Evid. 608(b)
("Specific instances of the conduct of a witness, for the purpose of
attacking or supporting his credibility, . . . may not be proved by
extrinsic evidence."); United States v. Westmoreland, 312 F.3d 302,
311 n.5 (7th Cir. 2002) (noting that the admission of expert testimony
corroborating a witness’ denial of writing a letter violated Federal
Rule of Evidence 608(b)), cert. denied, 123 S. Ct. 2094 (2003). We
therefore conclude that the rejection of this claim by the MAR court
is entitled to deference under § 2254(d)(1).
III.
In 1988, one of Chandler’s attorneys, James Gillespie, represented
Wilson on forgery charges that were resolved by negotiated plea.
During jury selection in Chandler’s case, Gillespie learned that Wil-
son would be a witness for the prosecution. Gillespie informed Chan-
dler and cocounsel Terry Collins of his prior representation of
Wilson, but because he did not believe that any conflict of interest
existed, he did not ask Chandler to execute a waiver and did not
inform the trial court that he had represented Wilson.
Gillespie did not recall the specifics of his representation of Wilson
and could not recall any confidential information he received in the
course of the attorney-client relationship with Wilson. Collins cross-
examined Wilson. Gillespie could not recall why Collins conducted
the cross-examination but stated that he thought Collins was the better
cross-examiner. Gillespie did not believe that his prior representation
of Wilson was a factor.
Chandler maintained in his MAR that his Sixth Amendment right
to the assistance of counsel was violated by Gillespie’s prior represen-
tation of Wilson. The MAR court rejected this claim on the merits,
concluding that while a possible conflict of interest existed, it did not
ripen into an actual conflict. Furthermore, the court determined that
Gillespie’s prior representation of Wilson did not adversely affect his
14 CHANDLER v. LEE
performance as Chandler’s attorney. We conclude that this ruling was
neither contrary to, nor an unreasonable application of, clearly estab-
lished Supreme Court precedent.
The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel, a right which includes entitlement to
representation that is free from conflicts of interest. See Strickland v.
Washington, 466 U.S. 668, 688 (1984); Wood v. Georgia, 450 U.S.
261, 271 (1981). "In order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must dem-
onstrate that an actual conflict of interest adversely affected his law-
yer’s performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
"[A] mere theoretical division of loyalties" is insufficient. Mickens v.
Taylor, 535 U.S. 162, 171 (2002); see Cuyler, 446 U.S. at 350 (hold-
ing "that the possibility of conflict is insufficient to impugn a criminal
conviction" (emphasis added)). When such a showing is made, preju-
dice is presumed and the defendant is entitled to reversal of his con-
viction. See Cuyler, 446 U.S. at 349-50.12
Courts have identified several factors pertinent to the determination
of whether successive representation has given rise to an actual con-
flict of interest. For example, courts have considered (1) whether "the
current and former cases are substantially related," Belmontes v.
Woodford, 350 F.3d 861, 885 (9th Cir. 2003); see Perillo v. Johnson,
205 F.3d 775, 798 (5th Cir. 2000); Freund v. Butterworth, 165 F.3d
839, 859 (11th Cir. 1999) (en banc); (2) whether the attorney has
obtained confidential information from the client, see Belmontes, 350
F.3d at 885; Perillo, 205 F.3d at 798; Freund, 165 F.3d at 859; see
also United States v. Agosto, 675 F.2d 965, 971 (8th Cir. 1982)
(explaining that having confidential information about a former client
who is a witness against a current client may adversely affect an attor-
ney’s performance by tempting the attorney to use the confidential
information during cross-examination or by hindering the attorney
12
The Supreme Court has expressly left open the question of whether
it is appropriate to presume prejudice in a case, like this one, in which
a conflict is alleged to arise from successive representation. See Mickens,
535 U.S. at 176. Because, as explained below, Chandler has failed to
demonstrate the existence of an actual conflict of interest that adversely
affected his lawyers’ performance, we need not consider this question.
CHANDLER v. LEE 15
from conducting a vigorous cross-examination for fear of revealing
confidential information); (3) the temporal relationship between the
prior and successive representations, particularly whether the prior
representation was "unambiguously terminated" before the successive
representation commenced, Perillo, 205 F.3d at 798; and (4) whether
the attorney has a "pecuniary interest in possible future business"
from the former client, Agosto, 675 F.2d at 971. Regardless of which
of these factors (if any) may be relevant to a particular instance of
successive representation, the ultimate question is "whether counsel’s
allegiance to the accused was compromised by competing obligations
owed to other clients." Perillo, 205 F.3d at 798; see Belmontes, 350
F.3d at 885.
We agree with the MAR court that while Gillespie’s prior represen-
tation of Wilson created a potential conflict of interest, there was
never an actual conflict. Gillespie’s representation of Wilson was on
a matter wholly unrelated to the charges against Wilson, and that rep-
resentation had unambiguously terminated well before Gillespie was
appointed to represent Chandler—indeed, even before Poore was
murdered. Critically, while Gillespie acknowledged that he had prob-
ably met with Wilson and likely received some confidential informa-
tion from his client, he could not recall any specifics of the
representation or the content of any information obtained. And, there
is no evidence that Gillespie hoped or expected to represent Wilson
in the future.
We further agree with the MAR court that even assuming the exis-
tence of an actual conflict—and assuming a showing of prejudice
would be required, see supra note 12—Chandler failed to demonstrate
an adverse effect on counsel’s performance. In the first place, Collins
performed a thorough cross-examination of Wilson, questioning Wil-
son regarding his prior convictions, his history of drug abuse, and his
motivation for testifying against Chandler. Chandler maintains, how-
ever, that counsel (1) did not question Wilson regarding his financial
motives for testifying against Chandler, (2) did not interview Wilson
prior to his testimony, (3) did not have a copy of Wilson’s criminal
record in the courtroom during cross examination, (4) did not attempt
to obtain Wilson’s calendar,13 and (5) did not adequately cross-
examine Wilson regarding his drug use.
13
Wilson testified that he kept a calendar on which he noted significant
events in his life and that he had noted his conversations with Chandler
16 CHANDLER v. LEE
As the magistrate judge explained, see Chandler, 252 F. Supp. 2d
at 248-50, it is not at all clear that counsel’s performance was inade-
quate in the respects alleged by Chandler. Chandler’s claim of
adverse effect fails because there is no evidence in the record to sup-
port a finding that any of these alleged failings resulted from Gilles-
pie’s prior representation of Wilson. We therefore affirm the denial
of relief on this claim.
IV.
On direct appeal, Chandler argued that the trial court erred in refus-
ing to instruct the jury to consider the statutory mitigating circum-
stance that "[t]he capital felony was committed while the defendant
was under the influence of mental or emotional disturbance." N.C.
Gen. Stat. § 15A-2000(f)(2) (2001). Chandler maintained that submis-
sion of this circumstance to the jury was supported by evidence that
he had been drinking alcohol on the night of the murder, that he had
a history of substance abuse, and that he suffered from mixed person-
ality disorder. The North Carolina Supreme Court determined that this
evidence did not support the instruction, see Chandler, 467 S.E.2d at
644-45, a ruling that Chandler does not challenge. He nevertheless
maintains that the refusal of the trial court to give the requested
instruction violated his constitutional rights by limiting the jury’s con-
sideration of mitigating evidence.14
A jury shall "not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for
a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(plurality opinion) (emphasis omitted). However, the Constitution
does not dictate the manner in which a jury considers and gives effect
to mitigating evidence; all that is required is that the state "not pre-
on the calendar. The MAR court made a factual finding that had defense
counsel obtained the calendar, it would have corroborated Wilson’s testi-
mony.
14
Having determined that Chandler was not entitled to the instruction
as a matter of state law, the North Carolina Supreme Court did not
address Chandler’s constitutional claim.
CHANDLER v. LEE 17
clude the jury from giving effect to any relevant mitigating evidence."
Buchanan v. Angelone, 522 U.S. 269, 276 (1998).
There was no constitutional violation here. All of the mitigating
evidence proffered by Chandler was presented to the jury. And, the
instructions given by the trial court not only did not preclude the jury
from considering this evidence; they actually provided at least three
avenues for giving effect to it: the statutory mitigating circumstance
that Chandler’s capacity "to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired,"
N.C. Gen. Stat. § 15A-2000(f)(6) (2001); the nonstatutory mitigating
circumstance that Chandler’s history of substance abuse had led him
to make poor choices in his life; and the statutory "catch-all" mitigat-
ing circumstance, see N.C. Gen. Stat. § 15A-2000(f)(9) (2001)
(allowing the jury to consider "[a]ny other circumstance arising from
the evidence which the jury deems to have mitigating value"). We
therefore affirm the denial of relief on this claim.
V.
For the reasons set forth above, we conclude that the district court
correctly denied Chandler’s petition for a writ of habeas corpus. We
therefore affirm.
AFFIRMED