UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20759
PAMELA LYNN PERILLO,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
March 21, 1996
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Pam Perillo was found guilty of murder and sentenced to death by a Texas court. She filed
a federal petition for writ of habeas corpus, 28 U.S.C. § 2254, asserting that her conviction was
wrongful because her attorney was simultaneously representing a key prosecution witness.1 The
federal district court refused to allow any discovery or an evidentiary hearing and granted summary
judgment denying the writ. Perillo now appeals the dismissal of her habeas corpus petition. Finding
that the district court erred in refusing to allow discovery and to hold an evidentiary hearing, we
1
Perillo raised many other issues below. However, she briefed only the ineffective assistance
of counsel issue. She attempted to incorporate by reference her district court habeas corpus petition.
This is insufficient to preserve error. Therefore, all other issues are waived on appeal. Yohey v.
Collins, 985 F.2d 222, 224-45 (5th Cir. 1993).
reverse the judgment of the district court and remand the case for appropriate discovery and an
evidentiary hearing.
I. BACKGROUND
Perillo was initially convicted of capital murder and sentenced to death in 1981 for her part
in the murders of Robert Banks and Bob Skeens. After that conviction was reversed due to an error
during voir dire, Perillo v. State, 656 S.W.2d 78 (Tex. Crim. App. 1983), she was convicted a second
time in 1984 and again sentenced to death.2 Two other people, Linda Fletcher and Mike Briddle,
were also involved in the same murders. Fletcher was initially charged with capital murder for killing
Banks and Skeens. However, the state later lowered the charge to aggravated robbery. Fletcher was
convicted of aggravated robbery and sentenced to five years probation; she has never been tried for
the murders of Banks or Skeens. Briddle was convicted of capital murder and sentenced to death.
He has since been executed by the State of Texas.
Jim Skelton was Perillo’s attorney during her second trial.3 Skelton had also been Fletcher’s
attorney in 1980 when she was indicted for the capital murder of Banks and Skeens, and he continued
to represent her during her trial for aggravated robbery. When Fletcher later testified against Briddle
at his trial, Skelton, as her attorney, negotiated "use immunity" for her, which meant that nothing she
said during her testimony in the Briddle trial could be used against her. Ex Parte Shorthouse, 640
S.W.2d 924, 928 (Tex. Crim. App. 1982). The state, however, was free to try her using information
it already possessed.
On October 19, 1984, the judge in Perillo's case issued a subpoena to compel Fletcher, who
was living in California, to return to Texas and testify in Perillo's second capital murder trial. Fletcher
2
While the crime resulted in the death of two men, Robert Banks and Bob Skeens, Perillo was
only tried and convicted for the murder of Skeens. A detailed statement of the facts in this case is
found in the Texas Court of Criminal Appeals decision affirming Perillo's Texas conviction. Perillo
v. State, 758 S.W.2d 567 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 925 (1989).
3
Robert Pelton was originally appointed to represent Perillo at her second trial. Skelton was
appointed as Pelton's co-counsel in November 1983, because he was familiar with the facts of the
case through representing Fletcher. Perillo's counsel at her first trial was William Burge; Skelton had
no involvement in that first trial and Fletcher did not testify.
2
would not voluntarily return to Texas, so a hearing was set in California to determine whether
Fletcher would be forced to return. Fletcher called Skelton and asked him to come to California. On
November 5, 1984, the first day of testimony in Perillo's case, Skelton traveled to California to
represent Fletcher in her attempt to avoid the subpoena.
The record is silent as to what happened in California. The only thing we know for certain
is that after Skelton flew to California to represent Fletcher, she was granted transactional immunity
for the murders of Skeens and Banks and she returned to Texas to testify. This means that she can
never be prosecuted for their murders. Shorthouse, 640 S.W.2d at 928. After she was granted
transactional immunity, the California court order Fletcher to return to Texas to testify against Perillo.
Perillo was convicted and sentenced to death.
II. THE NEED FOR DISCOVERY AND EVIDENTIARY HEARING
A. Discovery and Evidentiary Hearing
When there is a "factual dispute, [that,] if resolved in the petitioner's favor, would entitle [her]
to relief and the state has not afforded the petitioner a full and fair evidentiary hearing," a federal
habeas corpus petitioner is entitled to discovery and an evidentiary hearing. Ward v. Whitley, 21
F.3d 1355, 1367 (5th Cir. 1994), cert. denied, 115 S. Ct. 1257 (1995); see Young v. Herring, 938
F.2d 543, 560 (5th Cir. 1991), cert. denied, 503 U.S. 940 (1992); Rule 6 of the Rules Governing §
2254. However, the discovery and evidentiary hearing are limited to the factual dispute; we have
made clear that Rule 6 "does not authorize fishing expeditions." Ward, 21 F.3d at 1367. A habeas
petitioner must make specific allegations; "co nclusory allegations unsupported by specifics," or
"contentions that in the face of the record are wholly incredible" will not entitle one to discovery or
a hearing. Blackledge v. Allison, 97 S. Ct. 1621, 1629 (1977).
Perillo sought both discovery and an evidentiary hearing during her federal habeas corpus
proceeding, but both were denied. The district court erred because Perillo alleged that Skelton was
representing Fletcher in California, creating an actual conflict of interest that adversely affected his
representation of her. As discussed below, this is a factual dispute which, if resolved in her favor,
3
would entitle her to relief and there are no state factfindings on the issue that are entitled to the
presumption of correctness.
In her habeas corpus petition, Perillo alleges that "Skelton represented Fletcher in California
in a hearing to resist the State's subpoena for Fletcher to testify at Ms. Perillo's trial as the chief
prosecution witness. Later, during Ms. Perillo's trial, Skelton flew to California to explain to
Fletcher the legal proceedings in which she would testify against Ms. Perillo." (emphasis in original).
In addition, Perillo provided an affidavit from Carolyn Clause Garcia (then an attorney in
private practice in Houston) who stated that "[d]uring the pendency of the second Perillo trial, Jim
Skelton flew to California to represent Linda Fletcher in matters regarding the State's subpoena for
[Fletcher’s] appearance and testimony. I thought it odd and an additional conflict of interest for
[Skelton] to be involved in the representation of Fletcher in any fashion under the circumstances."
Skelton himself admits that he represented Fletcher at her hearing in California. He stated in
his first affidavit that he "represented Ms. Fletcher . . . in the California hearing to resist the Texas
subpoena for Ms. Fletcher to testify against Ms. Perillo." Contrary to the State’s assertions, Skelton
never withdrew or corrected his statement that he represented Fletcher in California.
The period of time when Skelton was in California is a black-hole; we have no information
about what happened at the hearing. There is no evidence of who negotiated the immunity for
Fletcher and exactly what role, if any, Skelt on had in the hearing. There is no transcript from the
California hearing. The evidence is limited to (1) Skelton’s affidavits in the state habeas proceeding,
none of which squarely address the issue of his conduct in California, and (2) his statement at trial
that he went to California at Fletcher’s request. Perillo has not had the opportunity to depose or
cross-examine Skelton. Perillo has not been able to depose or cross-examine Fletcher. Perillo has
not even been able to get Fletcher’s affidavit. We find it disturbing that Perillo’s chief obstacle in
obtaining information from Fletcher is her own trial counsel, Skelton.4 When Perillo’s habeas counsel
4
Perhaps Skelton’s actions in the habeas proceeding should not be surprising, given the tone
of his affidavits. Rather than merely denying that he labored under a conflict, Skelton instead chose
4
sought information from Fletcher in 1992, they were informed that Skelton was representing her and
that all communications must be through him. Despite repeated requests, no meeting was ever
allowed and Perillo’s counsel have never interviewed Fletcher. Therefore, Perillo has brought forth,
as best she can, facts supporting her allegation that Skelton had a conflict of interest that adversely
affected her.
Perillo is entitled to an evidentiary hearing where she can examine Skelton and Fletcher and
find out what happened in California. This should not be a wide-ranging fishing expedition, but a
brief adversarial hearing concerning a discrete time period.5 We express no view on what conclusion
should be reached once such a hearing is held.
B. Presumption of Correctness
When a state court has made findings of fact after a full and fair hearing, federal habeas corpus
courts grant those factfindings a presumption of correctness and do not relitigate those facts. 28
U.S.C. § 2254. However, not all items contained in the findings of fact are questions of fact entitled
to the presumption of correctness. Certain issues, including determinations about the effectiveness
of counsel's assistance, involve mixed questions of law and fact, and are reviewed de novo. Koch v.
Puckett, 907 F.2d 524, 527 (5th Cir. 1990); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990).
However, even if an issue is a mixed question of law and fact, state court background factfindings
are subject to the deference requirement of § 2254(d). Carter, 918 F.2d at 1202. See Strickland v.
Washington, 466 U.S. 668, 698 (1984); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir. 1990). Of
to mock Perillo’s habeas case, saying:
Had we done what Perillo suggests and succeeded in convincing the jury that
Linda was a lying California bitch who tugged on the rope with Perillo, this
would not have helped with the major stumbling block in Perillo’s case -- her
confession.
5
While the evidentiary hearing and discovery will be limited, we think that it will be helpful
if the parties also explore whether Fletcher gave any confidential information to Skelton when he
represented her.
5
course, if the state habeas court did not make factfindings on an issue, the federal habeas court is free
to examine the issue unconstrained. Armstead, 37 F.3d 202, 209 (5th Cir. 1994), cert. denied, 155
S.Ct. 1709 (1995).
The state habeas corpus court found that there was "no conflict between Skelton and Perillo
and no adverse effect upon Perillo's case." Those findings are mixed questions of law and fact;
therefore, they are subject to de novo review and are not entitled to any presumption of correctness.
The state habeas corpus court did not make any background findings about what happened in
California and Skelton’s involvement, if any, in that hearing.6 Therefore, on this issue, there are no
factfindings entitled to a presumption of correctness.
Moreover, even if there had been state court factfindings on this issue, they would not be
entitled to the presumption of correctness. State court habeas factfindings are presumed correct only
when there has been a full and fair hearing. 28 U.S.C. § 2254(d); Armstead, 37 F.3d at 207. A full
and fair hearing do es not necessarily mean a live hearing. In the proper circumstances, we have
6
The state habeas court did not actually make specific background findings concerning Skelton’s
representation. Instead, the court merely recited the facts that the Court of Criminal Appeals
considered in making its finding of no conflict or adverse effect. The habeas court said the Court of
Criminal Appeals considered,
Skelton's prior representation of Linda Fletcher; the lack of any
attorney client relationship between her and Skelton at the time she
testified; the fact that Fletcher at the time of her testimony had other,
independent counsel advising her; the personal friendship which had
developed between Fletcher and Skelton, including the fact that
Skelton had flown to California to attend her wedding.
To the extent that these can be considered implicit background factfindings, they do not address the
issue of Skelton’s representation of Fletcher in California when Perillo’s trial was in progress, or his
failure to aggressively cross-examine Fletcher at trial, the importance of which we discuss in Part
III(B)(2).
It is possible that the Court of Criminal Appeals factfindings on direct appeal can qualify as
§ 2254(d) findings of fact. May, 955 F.2d at 312. However, the Texas Court of Criminal Appeals
did not make specific findings regarding Skelton's conduct in California. The only findings relevant
to the conflict of interest issue is the Court of Criminal Appeals' finding of no
actual conflict and no adverse effect. But, as discussed earlier, these are mixed questions of law and
fact, which are reviewed de novo and are not entitled to the presumption of correctness. Koch, 907
F.2d at 527.
6
afforded the presumption of correctness to "paper hearings."7 Id. at 207. However, "it is necessary
to examine in each case whether a paper hearing is appropriate to the resolution of the factual dispute
underlying the petitioner's claim." May v. Collins, 955 F.2d 299, 312 (5th Cir. 1992).
In Nethery v. Collins, 993 F.2d 1154, 1157 n.8 (5th Cir. 1993), cert. denied, 114 S. Ct. 1416
(1994), we held that, because the state habeas judge was not the judge at the state trial, the paper
hearing was not an adequate and fai r hearing. In Armstead, we found that a paper hearing was
adequate because, "[u]nlike the scenario in Nethery, the trial judge in Armstead's case who made the
factual finding with regard to the conflicting affidavits via the 'paper hearing' was the same judge who
presided over Armstead's guilty plea. The judge had the opportunity to fully assess Armstead during
his plea process and determine his credibility then." Armstead, 37 F.3d at 208. See Vuong v. Scott,
62 F.3d 673, 683-84 (5th Cir.) (same judge -- paper hearing accorded presumption of correctness),
cert. denied, 116 S. Ct. 557 (1995); Amos v. Scott, 61 F.3d 333, 347 (5th Cir.) (same judge -- paper
hearing accorded presumption of correctness), cert. denied, 116 S. Ct. 557 (1995); Sawyers v.
Collins, 986 F.2d 1493, 1505 (5th Cir.) (same judge -- paper hearing accorded presumption of
correctness), cert. denied, 113 S. Ct. 2405 (1993).
In the instant case, the judges were different. The judge in Perillo's second capital murder trial
was the Honorable Woody Densen, while the state habeas corpus judge was the Honorable Curt F.
Steib. Judge Steib conducted only a paper hearing in the habeas corpus proceeding. Because the
judge in the state habeas corpus proceeding was not the trial judge, he could not "compare the
information presented in the various affidavits against his own firsthand knowledge of the trial." May,
955 F.2d at 314. We do not suggest that a full and fair hearing cannot be had any time the state
habeas judge is different from the trial judge. In our case-by-case review, the identity of the judges
is but one factor to consider, as we explained in Nethery, 993 F.2d at 1157 n.8. In this case, Judge
Steib could not supplement the affidavits with his own recollection of the trial and Skelton's
7
Paper hearings are hearings where the state judge did not hear live testimony, but instead
relied on affidavits.
7
performance in it. Thus, there is a danger of "trial by affidavit." Amos, 61 F.3d at 347. Therefore,
the findings o f fact in the state habeas corpus proceeding are not entitled to the § 2254(d)
presumption of correctness.
III. CONFLICTS OF INTEREST
To determine whether Perillo is entitled to an evidentiary hearing, we must also determine
whether her claim that she received ineffective assistance of counsel, if true, would entitle her to
relief. Ward, 21 F.3d at 1367.
The Sixth Amendment guarantees a defendant the right to counsel. This right includes the
right to an attorney who is not "burdened by an actual conflict of interest." Strickland v.
Washington, 466 U.S. 668, 692 (1984). Normally, to prove ineffective assistance of counsel, a
petitioner must prove (1) that his attorney’s representation fell below an objective standard of
reasonableness and (2) that he was prejudiced. Id. at 687; Beets v. Scott, 65 F.3d 1258, 1272-73 (5th
Cir. 1995) (en banc), petition for cert. filed (Dec. 18, 1995) (No. 95-7279). In order to prove that
he was prejudiced, a petitioner must show a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. This is known as the Strickland standard.
We apply a different standard, however, in cases where an attorney’s representation of
multiple clients created a conflict of interest. Instead of Strickland, we apply the more lenient Cuyler
standard. Cuyler v. Sullivan, 446 U.S. 335 (1980); Beets at 1265. To prevail on a Cuyler claim,
a petitioner need only show that his attorney labored under an actual conflict which adversely affected
his lawyer's performance. Cuyler, 446 U.S. at 348; Beets, 65 F.3d at 1277; Nealy v. Cabana, 782
F.2d 1362, 1364 (5th Cir.), cert. denied, 479 U.S. 819 (1986). The reasoning behind this policy is
clear: when an attorney represents two clients with opposing interests, the attorney cannot serve both
clients adequately. “Counsel can properly turn in no direction. He must fail one or do nothing and
fail both. An attorney cannot properly serve two masters.” Beets v. Scott, 65 F.3d at 1270 (internal
quotations and citations omitted).
8
A. Actual Conflict
An "actual conflict" exists when an attorney represents two clients whose interests in the
outcome of a matter are different. United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1994); United
States v. Carpenter, 769 F.2d 258, 263 (5th Cir. 1985); Mitchell v. Maggio, 679 F.2d 77, 79 n.4 (5th
Cir.) (citations omitted), cert. denied, 459 U.S. 912 (1982). We have found actual conflict when one
client would benefit by a person testifying and one client would be harmed by it. Nealy, 782 F.2d at
1364. "The petitioner must specifically identify instances in the record that reflect that his counsel
made a choice between possible alternative courses of action such as eliciting (or failing to elicit)
evidence helpful to one client but harmful to the other." United States v. Mers, 701 F.2d 1321, 1328
(11th Cir.), cert. denied, 464 U.S. 991 (1983); United States v. Fox, 613 F.2d 99, 102 (5th Cir.
1980).
Skelton apparently represented Fletcher in California in her attempts to avoid being forced
to testify in Texas. At the same time, he also represented Perillo in her attempts to stop Fletcher from
being forced to testify in Texas. At first glance, there would seem to be no actual conflict between
Fletcher's and Perillo's interests (and therefore, no possible Cuyler violation). Perillo did not want
Fletcher to testify and, at least when first subpoenaed, Fletcher did not want to testify. In fact,
Fletcher went so far as to call Skelton and ask him to come to California to help her avoid testifying.
However, while Fletcher may not have wanted to testify initially, it later became in her interest to do
so. Once the offer of transactional immunity was on the table, Fletcher would benefit from testifying.
With only use immunity from the Briddle trial, Fletcher could still be prosecuted for the murders; with
transactional immunity she could not. Therefore, by accepting the offer of immunity and testifying
against Perillo, Fletcher would be in a better position than she would have been by not testifying. As
Fletcher's attorney, Skelton had a duty to advise her of her options. He had a duty to tell Fletcher
that she would improve her legal situation by accepting the immunity and testifying against his other
client, Perillo.
9
Skelton's representation of Fletcher was concurrent with his representation of Perillo. Skelton
left Perillo's trial during the State's case in chief and flew to California to represent Perillo. Then, only
two days later, Fletcher came to testify against Perillo.8
While Skelton might have gone to California with the purest of motives and with an intention
to keep Perillo’s interests in mind, the offer of transactional immunity for Fletcher changed the
situation. After the State of Texas offered Fletcher transactional immunity, Fletcher’s and Perillo’s
interests diverged. If Skelton recommended to Fletcher that she do what was best for her (accept the
immunity and testify), he would hurt Perillo. Yet, if he honored Perillo’s interests and told Fletcher
to reject any deal and refuse to testify, he would hurt Fletcher. This is the exact type of situation
where a lawyer “can properly turn in no direction.” Beets, 65 F.3d at 1270. It is clear that Skelton
labored under an actual conflict of interest.
B. Adverse Effect
While Strickland requires a showing of actual prejudice, that is, that the result of the
trial probably would have been different, United States v. Greig, 967 F.2d 1018, 1024 (5th
Cir. 1992). Cuyler merely requires that the petitioner show only "adverse effect," a lower
threshold. To prove adverse effect, a petitioner need not show that the conflict changed the
outcome of the trial. Nealy, 782 F.2d 1365. "Once it has been established that an actual
conflict exists, prejudice to the defendant must be presumed." Mitchell v. Maggio, 679 F.2d
77, 79 (5th Cir.), cert. denied, 449 U.S. 912 (1982). The error cannot be considered harmless,
except in the most extraordinary circumstances. Id. In Beets, we characterized this standard as a
“not quite per se rule of prejudice.” Beets, 65 F.3d at 1269 (internal quotation omitted).
In Beets, we had occasion to revisit the conflict of interest area. The en banc court
decided that multi-party representation conflicts (that is, where an attorney has a conflict
8
Skelton flew to California for the hearing on Monday, November 5, 1984, the first day of
testimony in Perillo's trial. Fletcher testified on Wednesday, November 7, 1984.
10
between two clients) are the only situations where the more lenient Cuyler standard applies.
The Beets court, however, did not alter our law as to what constitutes adverse effect.9 We
have said before that to establish adverse effect, a petitioner need only show that his
attorney's judgment was fettered by concern over the effect of that decision on the other
client's case. Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir. 1986). In Nealy, we found
adverse effect because "[t]he lawyer who represented [two clients] was torn in his loyalty
and unable to make a decision purely in the interest of one client to whom he owed
undivided allegiance." Nealy at 1366.
In Beets, Judge King said that "[t]o establish an adverse effect on the basis of what
an attorney failed to do, a defendant must demonstrate that some plausible alternative
defense strategy or tactic -- `a viable alternative' -- might have been pursued." Beets, 65 F.3d
at 1288 (King, J., dissenting). Other circuits have expressed the standard similarly. United
States v. Rodriguez, 929 F.3d 747, 751 (1st Cir. 1991) (the petitioner "must demonstrate that
some plausible alternative defense strategy or tactic might have been pursued."); Church v.
Sullivan, 942 F.2d 1501, 1512 (10th Cir. 1991) (adverse effect when "a specific and
seemingly valid or genuine alternative strategy was available to defense counsel, but it was
inherently in conflict with his duties to others.") (internal quotations omitted); Winkler v.
Kleane, 7 F.3d 304, 309 (2d Cir. 1993) (a petitioner "must demonstrate that some plausible
defense strategy or tactic might have been pursued.") (internal quotations omitted), cert.
denied, 114 S. Ct. 1407 (1994); United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir.
9
The Beets majority opinion, written by Judge Jones, held that Strickland rather
than Cuyler applied in the particular circumstances of that case. In an alternative holding,
which was not adopted by a majority of the court, Judge Jones argues that even if Cuyler
applied, there was still no showing of adverse effect. She received only five votes out of
thirteen for that proposition. Judge King’s dissent and Judge Higginbotham’s concurrence
rejected Judge Jones’ attempt to raise the adverse effect hurdle. Therefore, a majority of the
en banc court believed that the Cuyler adverse effect test was met in Beets.
11
1988) (a petitioner "must demonstrate that some plausible defense strategy or tactic might
have been pursued."), cert. denied, 492 U.S. 906 (1989); see Beets, 986 F.2d at 1490
(Higginbotham, J., special concurring). Following the approach of our sister circuits, we
hold that to show adverse effect, a petitioner must demonstrate that some plausible defense
strategy or tactic might have been pursued but was not, because of the conflict of interest.
In this case there are two distinct ways in which Skelton’s simultaneous representation of
Perillo and Fletcher adversely affected his representation of Perillo. First, Skelton could have taken
actions to keep Fletcher from testifying. Second, Skelton could have aggressively cross-examined
Fletcher, attempting to impeach her testimony. While we cannot predict whether these tactics would
have been successful, the outcome is not determinative. What matters is that Skelton's simultaneous
representation of Fletcher and Perillo foreclosed viable options. Perillo was adversely affected.
1. Fletcher’s Return to Texas
Skelton's simultaneous representation in California of Fletcher and Perillo fettered his
discretion. If Skelton had represented only Perillo at the California hearing, he could have made
arguments to keep Fletcher from being returned to Texas to testify. The subpoena hearing in
California was one of the most important events surrounding Perillo's trial, because it was there that
the decision that Fletcher would have to testify was made. This decision proved fatal to Perillo
because, as the Texas Court of Criminal Appeals recognized, Fletcher provided the damaging details
that allowed the jury to answer the special punishment issues in favor of death. Perillo, 758 S.W.2d
at 572.
The hearing in California on Fletcher's returning to Texas to testify was not a mere formality:
the State of Texas had to prove that Fletcher was a material and necessary witness.10 There were
10
CAL. PENAL CODE §§ 1334 et seq. (UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES
FROM WITHOUT A STATE IN CRIMINAL PROCEEDINGS (1974)). For a California court to enforce an
out of state subpoena, the party seeking the subpoena must obtain a certificate from the state trial
judge which states that (1) there is a criminal prosecution pending in the court; (2) a person within
12
grounds upon which Skelton representing Fletcher could have fought the subpoena. Texas had to
show that Fletcher was a material and necessary witness. Because Fletcher did not testify at Perillo's
first trial and Perillo was still found guilty and sentenced to death, it could certainly be argued that
Fletcher was not material and necessary to the St ate's case against Perillo. Additionally, Skelton
could have appealed the decision of the California court.
Perillo does not need to prove that the result of the trial would have been different absent the
conflict -- this is not a Strickland case. Perillo only needs to show that the actual conflict adversely
affected her. Perillo was adversely affected by her attorney representing the State's star witness
against her in a proceeding to return the witness to testify, especially when it was in the witness'
interest to testify.
2. Skelton’s Cross-Examination of Fletcher
The Court of Criminal Appeals said that:
Fletcher's direct testimony was most damaging to [Perillo], not only as
it pertained to the question of guilt, but also as it related to the special
punishment issues, particularly future dangerousness. Other than
testimony from two California police officers that [Perillo's] reputation
there for peaceableness was bad, in this cause the State would present
no new evidence at the penalty stage bearing on this issue. Fletcher's
testimony was undeniably susceptible to interpretation as
demonstrating in appellant's attitude both before and after commission
of the offense a most `calculated and cold-blooded' bent. It was
imperative that [Skelton] neutralize the effect of that testimony, if he
could. (Emphasis added.)
Perillo, 758 S.W.2d at 572 (internal citations omitted).
Faced with the decision of how to neutralize Fletcher’s testimony, Skelton did not
choose to attack her credibility and impeach her as a witness. The Court of Criminal
the state [California] is a material witness in that prosecution," and (3) his or her presence will be
required for a specified number of days. CAL. PENAL CODE § 1334.2. At a hearing, the judge will
determine if (1) the witness is material and necessary; (2) whether requiring the witness to testify in
the other state will cause him or her under hardship; and (3) whether the laws of the other state will
protect the witness from arrest and service of civil and criminal process. Id.
13
Appeals itself recognized that Skelton's cross-examination of Fletcher was not rigorous.11
Perillo v. State, 758 S.W.2d 567, 572 (Tex. Crim. App. 1988). Rather, Skelton chose to
portray both Fletcher and Perillo as victims, manipulated by the evil Briddle.
The district court held that “Skelton’s decision not to engage in impeachment or
rigorous cross-examination of Fletcher at Perillo’s trial was a reasonable trial strategy
supported by sound professional judgment.” However, this is the wrong legal standard. The
proper question is whether some plausible defense strategy or tactic might have been
pursued, but was not, because of the conflict of interest. Supra III(B).
Skelton had another plausible defense strategy that he could have used: he could have
attacked Fletcher’s credibility and attempted to impeach her testimony. In her petition,
Perillo identifies at least six particular items which Skelton could have used to impeach
Fletcher.12 This aggressive strategy could have led the jury to believe at least two things:
11
Skelton did not perform much better when Fletcher was being directly examined by the
State. Skelton did not object even once to her testimony.
12
In her federal habeas petition, Perillo alleged that:
(a) Skelton failed to mention or adduce evidence that at the time of her arrest, Fletcher
had blood on her jeans. This evidence would have shed doubt on Fletcher’s credibility and
on the veracity of her statements that she did not participate in the crime for which Ms. Perillo
was tried.
(b) Skelton failed to point out to the jury that Ms. Perillo turned Fletcher in to the
police, giving Fletcher a motive for incriminating Ms. Perillo. This evidence would have
impeached Fletcher’s testimony.
(c) Skelton failed to impeach Fletcher’s inconsistent testimony that Fletcher told
Denver police that the last time she saw Banks he let her off on the freeway and that as far
as she knew, Banks was alive and well. Fletcher’s statement substantially conflicts with her
testimony at Ms. Perillo’s trial. The inconsistent statement, presented at
Briddle’s trial, would have shed doubt on Fletcher’s credibility.
(d) Skelton failed to elicit testimony that the only fingerprints identified in the entire
trial were Fletcher’s. By failing to identify the fingerprint match, Skelton prejudiced the jury
against Ms. Perillo by suggesting they were her fingerprints instead of Fletcher’s.
(e) Skelton incriminated Ms. Perillo by eliciting testimony from Fletcher regarding Ms.
14
(1) Fletcher’s role in the murder was not as passive as she implied and (2) Fletcher held a
grudge against Perillo because it was Perillo’s confession that caused her arrest. This
certainly could have led the jury to discount Fletcher’s tale about Perillo’s cruelty and cold-
heartedness. Impeaching Fletcher might not have gotten Perillo acquitted, but, the trial was
not about guilt, it was about punishment. With Perillo’s confession, the only real issue in
the trial was whether Perillo would be sentenced to death. Impeaching Fletcher certainly
could have caused the jury to answer “No” on the special punishment issues, especially the
one about future dangerousness. The Court of Criminal Appeals noted that the only real
evidence the State presented on future dangerousness came from Fletcher. Perillo, 758
S.W.2d at 572.
We must remember that under Cuyler the issue is not what was the best strategy, but
whether there was a plausible defense strategy that might have been pursued but was not,
because of the conflict of interest. It is difficult to believe that impeaching the star state
witness would not be a plausible defense strategy.
Impeaching Fletcher was a plausible defense strategy, but Skelton’s representation of
her precluded him from adopting it. Instead, he chose the only strategy consistent with his
dual representation of Fletcher and Perillo. Skelton’s duty of loyalty to Fletcher stopped him
from considering a strategy that involved aggressively attacking Fletcher’s credibility.
Perillo’s alleged participation in a variety of extraneous offenses.
(f) Skelton protected Fletcher from a rigorous cross-examination by reviewing his
cross-examination with Fletcher prior to her testimony.
(Emphasis in original; internal citations omitted).
15
Skelton’s plan of making Fletcher and Perillo appear sympathetic “was not a free choice of
strategy. It was the only course open.” Foxworth v. Wainwright, 516 F.2d 1072, 1079-80
(5th Cir. 1975).13
IV. CONCLUSION
Perillo is claiming that her Sixth Amendment right to counsel was violated because her
attorney at her capital murder trial, Jim Skelton, had an actual conflict of interest. Perillo sought
discovery and an evidentiary hearing at the federal district court, but they were denied.
In order to be entitled to discovery and an evidentiary hearing, a federal habeas corpus
petitioner must show (1) that there is a factual dispute that, if resolved in the petitioner's favor, would
entitle him to relief and (2) the State has not afforded the petitioner a full and fair evidentiary hearing.
The state habeas corpus court did not make any factfindings relevant to Perillo's conflict of interest
claim. Even if any factfindings were made, they were not the product of a full and fair evidentiary
hearing. Perillo has shown that there is a factual dispute about Skelton's representation of both
Fletcher and Perillo during the time of Fletcher's subpoena hearing in California. If the dispute is
resolved in Perillo's favor, she is entitled to relief because Skelton's actions created an actual conflict
that adversely affected Perillo. Therefore, the district court erred in not allowing discovery and an
evidentiary hearing. The judgment of the district court is VACATED and the case is
REMANDED for appropriate discovery and an evidentiary hearing. We reiterate that we do
not mean to suggest to the district court, what result it should reach on remand, following the
hearing.
13
We are disturbed by what is an uncontroverted fact in the habeas record, i.e. that upon her
return to Texas to testify in Perillo's second trial, Fletcher stayed at the home of Skelton the night
before her testimony was given. Skelton and the State attempted to rationalize the propriety of this
conduct on the basis of the "friendship" which developed between Fletcher and Skelton when Skelton
represented Fletcher in her aggravated robbery trial and which was later evidenced by Skelton going
to California to "give Fletcher away" at her second marriage. But that rationalization simply confirms
the reality of the conflict of interest position in which Skelton placed himself.
16
GARWOOD, Circuit Judge, concurs in the result.
17