Podieh v. State, 235 A.3d 68

Feb 2015 traffic stop: Deputy Ensor smelled marijuana, searched Podieh’s car, found small bags of heroin and cellphones; Podieh was arrested and charged.
July 2015: Deputy Elliott obtained warrants, conducted trash pulls and a search of Podieh’s girlfriend’s residence that recovered heroin; Podieh faced related charges in two cases.
John R. Discavage represented Podieh in both criminal matters while simultaneously being the subject/defendant of a civil malpractice/fee dispute arising from his prior representation of Deputy Ensor and Ms. Ensor; discovery in that civil suit overlapped Podieh’s criminal litigation.
Discavage told the court there was a “potential personal conflict” (Jan 8, 2016) but did not disclose the conflict to Podieh, and Discavage never filed suppression motions in either criminal case; Podieh entered a global plea and was sentenced.
On post-conviction review the circuit court granted relief, finding an actual concurrent conflict that likely prevented filing suppression motions; the Court of Special Appeals reversed; the Court of Appeals reversed the intermediate court, holding an actual conflict existed and that presumed prejudice attached under the Mickens/Cuyler line, and directed affirmance of the circuit court’s relief.

Issue	Podieh's Argument	State/Discavage's Argument	Held
Whether Discavage’s relationship/overlapping litigation involving Deputy Ensor created an actual conflict of interest entitling Podieh to presumed prejudice	Discavage had concurrent litigation and interests involving Deputy Ensor, failed to disclose, and that conflict caused him to forgo standard tactics (e.g., suppression motions), adversely affecting representation	The conflict was at most potential; traffic-stop case was dismissed via the global plea so no conflict matured and there is no proof the conflict caused the tactical choices	Held for Podieh: Court of Appeals found an actual concurrent conflict; applied Mickens three-prong test and Nicholson’s methods for prong three, concluded failure to file suppression motion was inherently in conflict with Discavage’s other loyalties, presumed prejudice, and affirmed circuit court relief (new trial)
Whether counsel and immigration counsel misadvised Podieh about deportation consequences of guilty plea	Podieh contended he was not told plea would constitute an aggravated felony and lead to automatic deportation	State argued insufficient evidence of deficient advice and that Podieh did not prove prejudice	Not reached on the merits by the Court of Appeals—decision disposed by conflict-based ineffective-assistance holding; circuit court had denied relief on this ground and that denial was not addressed further

Cuyler v. Sullivan, 446 U.S. 335 (presumption of prejudice when counsel labors under an actual conflict of interest that adversely affects performance)
Strickland v. Washington, 466 U.S. 668 (two-part ineffective-assistance test; prejudice standard and recognition of Sullivan exception)
Mickens v. Taylor, 535 U.S. 162 (an "actual conflict" is one that adversely affects counsel’s performance; court endorsed inquiry into adverse effect)
Taylor v. State, 428 Md. 386 (Md. adoption of the Mickens three-prong framework for testing adverse effect on collateral review)
United States v. Nicholson, 611 F.3d 191 (4th Cir. formulation—adopted here—allowing proof of Mickens prong three either by showing the alternative defense was inherently in conflict with counsel’s other loyalties or that it was not pursued due to those loyalties)