Badger v. Hendricks

OPINION

TUCKER, District Judge.

James P. Badger appeals the Order of the U.S. District Court for the District of New Jersey, denying his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. In his habeas petition, Badger alleges, inter alia, that his appellate counsel’s prior representation of a former co-defendant adversely affected counsel’s performance and thereby deprived him of his right to effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution. Upon review of the state court record, the District Court de*180termined that Badger had failed to establish an actual conflict of interest and denied his habeas petition. We affirm.

I. BACKGROUND

On May 80,1991, the Cumberland County Prosecutor’s Office indicted Badger for the murder, assault, and robbery of Benjamin Taybago. Also charged in the indictment were Frank Johnson (Badger’s brother-in-law), Patricia Badger-Johnson (Badger’s sister and Johnson’s wife), and Anthony Burton. On August 29, 1991, Johnson pled guilty to aggravated manslaughter and robbery pursuant to a plea agreement. Johnson also gave a statement to the police, which exonerated Badger-Johnson and Burton. The charges against Badger-Johnson and Burton were subsequently dismissed on the government’s motion.

At Badger’s trial, which took place on July 14-17, 1992, Johnson testified as the only eyewitness to the crime. Johnson testified that he entered Taybago’s home and distracted him, while Badger entered from the rear. He further testified that Badger attacked the victim, Taybago, before taking money, jewelry, and other items. Other witnesses presented corroborating circumstantial evidence. On July 17, 1992, Badger was convicted of murder, robbery, unlawful possession of a weapon, and felony murder, and was later sentenced to an aggregate term of fifty years with a forty-year parole bar.

After Badger was convicted, Johnson moved for reconsideration of his sentence. The government did not oppose the motion. Johnson, who was originally sentenced to an aggregate term of thirty years imprisonment with a ten-year parole bar for his involvement in the murder and robbery, was resentenced to an aggregate term of twenty years with a seven-year parole bar.

On December 4, 1992, Badger filed a Notice of Appeal with the New Jersey Superior Court, Appellate Division. His direct appeal was handled by Attorney Linda Lawhun, who had previously represented his sister, Badger-Johnson, in the Taybago murder and robbery case in which Badger was convicted. During the direct appeal proceedings, Lawhun moved the state appellate court for a temporary remand on the grounds that Badger had obtained newly discovered evidence which would serve as the basis for a motion for new trial. The new evidence was of an alleged secret pretrial agreement between the trial prosecutor and Johnson, which was previously undisclosed in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The alleged secret agreement was to be evidenced by (1) Johnson’s untimely application for and receipt of a reconsideration and reduction of his sentence without objection by the state; (2) the dismissal of charges against all of the individuals who served as witnesses for the state; and (3) Johnson’s desire to recant his testimony against Badger in that he had testified falsely to obtain his wife’s, Badger-Johnson’s, release from jail.

After dispensing with several of Badger’s other claims on the merits, the state appellate court remanded the case for an evidentiary hearing on the motion for new trial based on the alleged Brady violation.1 At the hearing, Johnson recanted his trial testimony and stated that he had falsely testified at trial in order to “get the time off [for] me and my wife.” Johnson later *181entered a guilty plea to perjury charges arising out of his testimony at the evidentiary hearing.

The other witnesses at the evidentiary hearing on Badger’s motion for new trial included Robert Luther, the First Assistant Prosecutor who handled the Taybago case; Harry Leszchyn, Jr., Johnson’s counsel; and the Honorable Rushton Ridgway, the judge who presided over Johnson’s resentencing. Judge Ridgway testified that there were no irregularities in Johnson’s resentencing and Leszchyn denied any knowledge of or participation in any secret agreement. The prosecutor, Luther, denied the existence of any secret agreement between his office and Johnson for Johnson’s reduced sentence and Badger-Johnson’s release from jail. Moreover, Luther maintained that Johnson had no idea that the charges would be dismissed against his wife before he gave the statement implicating Badger. Lawhun cross-examined all of the government’s witnesses but did not call to the stand her former client, Badger-Johnson, or any of the witnesses who she claimed received benefits from the government in exchange for their testimony at trial. Lawhun did not advise the court that she had previously represented Badger-Johnson nor was any objection to her representation voiced by Badger. The state court determined that no Brady violation had occurred and denied Badger’s motion for new trial.

On November 30, 1994, shortly after the court denied the motion for new trial, Lawhun wrote to Badger regarding the prosecutor’s testimony at the hearing, stating: “In light of Mr. Luther’s testimony concerning Pat’s release from jail, you may prefer to have me as a potential witness rather than an attorney. I was as surprised by Mr. Luther’s denial of an agreement about Pat as you were.” Lawhun further stated, “You could have the Public Defender’s Office handle the appeal” and requested that Badger inform her of how he wished to proceed. There is no evidence of a response from Badger; however, Lawhun subsequently prepared appellate documents on Badger’s behalf.

Lawhun both filed an appeal of the court’s denial of Badger’s motion for new trial, which the state appellate court affirmed, and prepared the initial post conviction pleadings. Lawhun later terminated her representation of Badger when she became a prosecutor in the Cumberland County Prosecutor’s Office, the same office that was still handling Badger’s case. Badger retained new counsel, Stephen B. Patrick, who filed the brief and appendix to Badger’s motion for post-conviction relief, which was ultimately denied. Badger later obtained other counsel.

Prior to filing Badger’s appeal of the denial of post-conviction relief, Badger’s new counsel, Charles P. Savoth III, contacted Lawhun regarding an alleged conflict of interest arising from her successive representation of Badger-Johnson and Badger. Savoth asked Lawhun to review her files to refresh her recollection as to the basis for her suggestion that she might better serve as a witness for Badger. Lawhun did not produce her file, nor did she provide information to Savoth as to why she made the statements in her letter, expressing difficulty in recalling the reasons why she had made those statements and authored a letter to that effect.

On appeal of the lower court’s denial of post-conviction relief, Badger claimed that Lawhun had a conflict of interest which adversely affected her performance both at the evidentiary hearing on Badger’s motion for new trial and on direct appeal. The state appellate court noted Badger’s failure to develop the record, stating that because he raised the conflict of interest issue for the first time on appeal of denial *182of post-conviction relief, “there was no record for appellate review.” Further, the appellate court determined that Badger’s allegations of a conflict of interest did not warrant an evidentiary hearing. The appellate court denied Badger’s conflict of interest claim as “unsupported” and “without merit.”

Thereafter, Badger filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the U.S. District Court for the District of New Jersey. Badger raised, inter alia, the claim that he was denied effective assistance of counsel due to Lawhun’s alleged conflict of interest. Upon review of the state court record, the District Court rejected the claim because Badger “ha[d] not shown that counsel had an actual conflict of interest which adversely affected counsel’s performance.” Badger appeals.

II. STANDARD OF REVIEW

Where, as here, the district court bases its decision on the record of the state court proceedings, rather than on facts found after an evidentiary hearing, the court of appeals has plenary review of the district court’s decision. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002), cert. denied, 538 U.S. 911, 123 S.Ct. 1492, 155 L.Ed.2d 234 (2003). Reviewing federal courts examine state habeas petitions under the terms of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a federal court may not grant habeas relief under § 2254 unless the state court’s adjudication of the petitioner’s claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by Supreme Court precedent, or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) — (2).

III. DISCUSSION

Per Supreme Court precedent, multiple representation of co-defendants does not violate the Sixth Amendment’s right to effective assistance of counsel unless it gives rise to a conflict of interest which adversely affected counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). To prevail, the defendant must establish an actual conflict of interest that limited or otherwise prevented counsel’s effective representation; the mere “possibility of conflict is insufficient to impugn a criminal conviction.” Id. at 350, 100 S.Ct. 1708. Here, Badger claims that Lawhun’s prior representation of his sister, Badger-Johnson, limited her ability to serve as effective appellate counsel as evidenced by Lawhun’s November 30, 1994 letter. The state appellate court found that Badger had failed to establish an actual conflict which adversely affected Lawhun’s performance. Badger argues that the state court’s decision was contrary to or involved an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

A. § 2254(d)(1) — “contrary to” or “unreasonable application” of federal law

The state appellate court’s decision that Badger failed to establish a conflict of interest claim was neither contrary to nor an unreasonable application of federal law. Badger correctly argues that “[t]he existence of an actual conflict, together with an adverse affect on representation, is the measure of a Sixth Amendment violation.” Appellant’s Brief at 27. However, Badger *183has neither established an actual conflict of interest nor an adverse effect on Lawhun’s performance caused by her prior representation of Badger-Johnson. Badger merely states that Lawhun’s November 30, 1994 letter demonstrates that Lawhun may have possessed additional information regarding Badger-Johnson’s release from jail which may have been helpful to Badger at the evidentiary hearing on his motion for new trial. See id. at 28-30. In other words, Badger merely alleges the possibility of a conflict which may have adversely affected counsel’s performance. See Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (stating that a possible conflict of interest is insufficient to establish a deprivation of effective assistance of counsel).

Badger does not state what information, if any, Lawhun possessed relevant to his Brady claim and withheld due to her prior representation of his sister, Badger-Johnson. The evidence of record indicates that Lawhun believed that Johnson’s testimony would be sufficient to establish a Brady violation. Further, Badger’s claim that Lawhun somehow withheld relevant information is belied by the state court’s finding that the government did not have a secret agreement with Johnson to release Badger-Johnson from jail in exchange for Johnson’s favorable testimony, and even further contradicted by Johnson’s guilty plea to perjury charges due to his false testimony at the evidentiary hearing. See 28 U.S.C. § 2254(e)(1) (calling for deference to state court’s factual findings in absence of clear and convincing evidence to the contrary). Because Badger has failed to show an actual conflict of interest, the state court’s decision cannot be deemed “contrary to” or an “unreasonable application” of federal law. See Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.2000) (stating that a state court adjudication is “contrary to” federal law if Supreme Court precedent requires a contrary outcome); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.1999) (en banc) (stating that a state court adjudication is an “unreasonable application” of federal law if it “resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent” when “evaluated objectively and on the merits”).

B. § 2254(d)(2) — unreasonable determination of the facts in light of the evidence

Badger’s habeas petition also challenges the reasonableness of the state appellate court’s determination of the factual predicate of his conflict of interest claim. The state appellate court concluded that Badger’s conflict of interest claim was “unsupported.” Badger claims that the court’s “summary rejection” of his claim as “unsupported” was an unreasonable determination in light of the evidence before it, specifically Lawhun’s November 30, 1994 letter.

The state court’s decision was not based on an unreasonable determination of the facts in light of the evidence before it. Where, as here, the state court does not hold an evidentiary hearing, the federal court must look to the same evidence that the state court considered to determine if the state court’s decision was in fact unreasonable in light of the evidence presented to it.2 Lambert v. Blackwell, *184387 F.3d 210, 239 (3d Cir.2004). In his post-conviction relief appeal documents, Badger alleged that “his attorney on direct appeal had a conflict of interest arising out of her alleged representation of one of the codefendants [Badger-Johnson] whose charges had been dismissed before defendant’s trial, and that this alleged conflict somehow prevented that attorney from calling the codefendant as a witness at [Badger’s] remand hearing.” State v. Badger, No. A-6030-97T4, Memorandum Op. (Sup.Ct. N.J., App. Div. June 12, 2000) (per curiam). The only evidence set forth by Badger in support of his allegations was Lawhun’s letter, which states appellate counsel’s surprise that the prosecutor had denied the existence of an agreement with Johnson regarding his wife, Badger-Johnson, and that going forward Badger may “prefer to have [Lawhun] as a potential witness rather than an attorney.” Lawhun’s statement is ambiguous and does not establish an actual conflict of interest stemming from Lawhun’s prior representation of Badger-Johnson. The letter does not indicate that Lawhun’s decision, assuming a decision was made, not to call Badger-Johnson was motivated by an interest to protect her former client. Instead, the record reveals that Lawhun believed that Johnson’s testimony at the evidentiary hearing, recanting his trial testimony, would be sufficient to establish a Brady violation. This was perhaps an error in strategy as the presiding court did not find Johnson’s testimony to be credible and Johnson later pled guilty to charges of perjury in connection with his testimony at the hearing, but it does not establish an actual conflict of interest. Thus, the state court’s determination that Badger’s conflict of interest claim was “unsupported” was not an unreasonable determination in light of the evidence before it.

We affirm the District Court’s decision, denying Badger’s habeas corpus petition.

. Notably, the court which presided over Badger's criminal trial did not preside over the evidentiary hearing.

. The District Court was under no duty to provide Badger with an evidentiary hearing on his habeas petition. Where a habeas petitioner has failed to develop the state court record, the AEDPA permits a district court to conduct an evidentiary hearing in limited circumstances:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evi*184dentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). Badger does not meet any of the requirements for an evidentiary hearing.