Cоrey Lorenzo WOODFOLK, Petitioner-Appellant, v. Gary D. MAYNARD, Sec. of Corr.; The Attorney General of the State of Maryland; Douglas F. Gansler, Respondents-Appellees.
No. 15-6364
United States Court of Appeals, Fourth Circuit.
Argued: January 24, 2017. Decided: May 23, 2017.
857 F.3d 531
For these reasons, the PCR court “failed to appreciate the prejudice inherent in the absence of” the proper alibi jury instruction; therefore, it unreasonably applied Strickland, and Hope should be accorded relief under
II.
When asked to describe a situation in which, on federal habeas review, Strickland prejudice could flow from counsel‘s failure to request an alibi defense, the State explained, “That would be in a situation where ... the state‘s case is a weak case,” Oral Argument at 31:07-31:27, Hope v. Cartledge, No. 15-7367, http://coop.ca4.uscourts.gov/OAarchive/mp3/15-7367-20170321.mp3 (4th Cir. March 21, 2017), and where ... not having the [alibi] instruction would ... have caused an issue for the jury in knowing what the state‘s burden was, and whether or not the defendant had a burden of showing anything in regards to the alibi.
Id. at 33:46-34:02. In my opinion, the State described precisely this case. Therefore, I respectfully dissent.
Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge King and Senior Judge Davis joined.
GREGORY, Chief Judge:
In March 1988, Corey Lorenzo Woodfolk pleaded guilty in the Circuit Court for Baltimore City to attempted murder and a related firearm offense. Several months after his plea, Woodfolk sought relief from his criminal judgment on the ground that his trial counsel, who represented both Woodfolk and his codefendant, had brokered a deal with the prosecution, whereby
Woodfolk‘s troubling claim has evaded merits review throughout a tortuous history of proceedings in the nearly 30 years since his original plea, culminating in the
I.
On June 14, 1987, Woodfolk and another young man, Cornelius Langley, were involved in an altercation in a parking lot in Baltimore, Maryland. During the altercation, an off-duty police officer observed Woodfolk draw a handgun. According to this officer, Woodfolk pulled the trigger, but the gun did not fire. Woodfolk and Langley were arrested, and Woodfolk was charged with attempted murder. Both Woodfolk and Langley retained attorney Michael Vogelstein to represent them.
Woodfolk later would testify that Vogelstein initially expressed optimism about Woodfolk‘s chances of success at trial. But on March 4, 1988, while Woodfolk waited in a holding cell in the courthouse on the first day of his scheduled trial, Vogelstein advised Woodfolk that he had arranged an agreement with the State. According to that agreement, Woodfolk would plead guilty; Langley would provide a statement to the court inculpating Woodfolk, and Langley‘s case would be placed on the stet docket,1 allowing him to go free. Woodfolk, then 18 years old, was resistant to accepting the agreement, but he eventually acceded to Vogelstein‘s advice.
That day, Woodfolk pleaded guilty to attempted murder and use of a handgun in the commission of a crime of violence. After accepting his guilty plea, the circuit court sentenced Woodfolk to ten years’ imprisonment, with five years suspended, on the attempted murder count and a concurrent term of five years’ imprisonment, suspended, on the handgun count, to be followed by five years’ probation. Woodfolk did not appeal his conviction based on his guilty plea.
On June 3, 1988, represented by new counsel, Woodfolk filed a motion for reduction or modification of sentence pursuant to
Woodfolk was convicted in 1994 on unrelated federal charges and sentenced to 50 years’ imprisonment.2 That conviction triggered a violation of the terms of his state probation. Later that year, Woodfolk pleaded guilty in Maryland circuit court to a probation violation. He was sentenced to three years’ imprisonment on the attempted murder count and a concurrent 18 months’ imprisonment on the handgun count, to be served consecutively to his federal sentence.
Beginning in 1995, Woodfolk filed various petitions for postconviction relief in Maryland circuit court, attempting to challenge his October 1988 criminal judgment. As relevant to this appeal, Woodfolk filed a postconviction petition in June 1998, which the circuit court denied in 2000. The Maryland Court of Special Appeals summarily denied Woodfolk‘s petition for leave to appeal that judgment in 2001. Woodfolk sought to reopen his postconviction proceedings in 2005, but that petition also was denied.
Woodfolk filed a
In January 2006, Woodfolk filed a motion to correct an illegal sentence in the Maryland circuit court, again challenging his October 1988 judgment. That motion was unsuccessful in the circuit court; however, on June 6, 2007, the Court of Special Appeals reversed. It concluded that the circuit court had lacked authority to grant Woodfolk‘s motion for a new trial in October 1988, as the motion was orally made and untimely. Further, it concluded, the circuit court was prohibited from increasing Woodfolk‘s sentence when considering his timely Rule 4-345 motion for reduction or modification of sentence. In remanding to the circuit court, the Court of Special Appeals explained that it was
not ... vacating appellant‘s convictions. “In a criminal case, if the appellate court reverses the judgment for error in the sentence or sentencing proceeding, the Court shall remand the case for resentencing.”
Md. Rule 8-604(d)(2) (emphasis added). Under the circumstances of this case, we are persuaded that the appropriate procedure is to reinstate appellant‘s motion to modify sentence, which the [circuit court in October 1988] suggested he voluntarily withdr[aw], nunc pro tunc. That motion can then be considered on remand.
Woodfolk v. Maryland, No. 2836, at 9 (Md. Ct. Spec. App. June 6, 2007) (unpublished).
On November 12, 2008, the circuit court held a hearing to address the Court of Special Appeals’ remand order. The parties discussed at length the procedural posture of the case, the scope of the remand order, and Woodfolk‘s state postconviction proceedings. Woodfolk requested that the circuit court reimpose the sentence he had originally received in March 1988 to permit him to pursue a postconviction challenge to his March 1988 guilty plea based on Vogelstein‘s alleged conflict of interest. The court granted this request and reimposed the March 1988 sentence but ran the sentence consecutive to Woodfolk‘s federal sentence.
Woodfolk filed a petition for postconviction relief in Maryland circuit court, at the latest, on January 20, 2009,3 again arguing that his March 1988 plea was constitutionally invalid due to Vogelstein‘s conflict of interest. The court held a hearing on that petition, at which Woodfolk testified. The State presented no evidence but, in response to Woodfolk‘s allegations, argued that Woodfolk had procedurally defaulted his claim and that the claim failed on its merits.
The circuit court denied the petition. It concluded that Woodfolk had waived his ineffective assistance claim under
On November 1, 2013, Woodfolk filed the instant
The district court ordered the parties to submit additional briefing addressing the impact, if any, of Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011), on the timeliness determination; the merits of Woodfolk‘s claim; and whether the court could reach the merits of that claim even if the petition was timely. In response, the State argued, among other points, that Woodfolk‘s claim was procedurally defaulted under
The district court denied Woodfolk‘s petition, concluding that the petition was untimely and that his claim was procedurally defaulted. The court determined that the Court of Special Appeals’ June 2007 judgment had not authorized a resentencing, but merely reinstated Woodfolk‘s Rule 4-345 motion and directed the circuit court to consider the merits of that motion on remand. Relying on Kholi, the court held
Woodfolk timely appealed. We granted a certificate of appealability and directed briefing on the following issues: (1) Whether the district court had jurisdiction to adjudicate Woodfolk‘s numerically second
II.
As a threshold matter, we must consider several jurisdictional issues raised by recent state court action in Woodfolk‘s case. In November 2016, after the parties had completed formal briefing in this appeal, the Circuit Court for Baltimore City granted Woodfolk‘s most recent pro se motion to correct an illegal sentence. In accordance with that ruling, the circuit court entered a new commitment order modifying Woodfolk‘s sentence to run concurrent with, rather than consecutive to, any other outstanding or unserved sentence, including his term of federal incarceration. As a result of this order, Woodfolk‘s state term of incarceration has expired, and hе is scheduled to serve his five-year term of probation upon his release from federal custody.
The State questions whether the circuit court‘s action renders this appeal moot. We readily conclude that it does not. When Woodfolk filed his
The State principally relies on King v. Morgan, 807 F.3d 154 (6th Cir. 2015), and Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), to assert that Woodfolk‘s appeal may now be moot because the circuit court‘s sentence modification created a new judgment. These cases are inapposite, as they consider whether a petitioner whose sentence is modified may file a numerically second habeas petition without triggering the requirement of appellate court preauthorization for “second or successive” petitions under
III.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a habeas petition is subject to a one-year statute of limitations.
The parties dispute which of several state court judgments triggered the limitations period under
The State argues that the Court of Special Appeals’ opinion revived Woodfolk‘s March 1988 criminal judgment. Rather than authorizing a de novo resentencing, the State concludes, the Court of Special Appeals merely reinstated Woodfolk‘s Rule 4-345 motion, returning his case to the status quo before Woodfolk withdrew that motion in exchange for his invalid new
Even accepting that Woodfolk would not have had reason to challenge the March 1988 judgment until the Court of Special Appeals’ June 2007 opinion, the State contends that Woodfolk‘s claim became ripe when that opinion issued, placing Woodfolk on notice that the March 1988 judgment was the operative judgment for purposes of the limitations period. Woodfolk did not commence his
Although the district court adopted much of the State‘s reasoning, we conclude that Woodfolk advances the sounder approach. After acknowledging that Woodfolk‘s sentence was invalid but that it would not vacate Woodfolk‘s convictions, the Court of Special Appeals explicitly observed that an appellate court reversing a judgment for error in the sentence “shall remand the case for resentencing.”
Woodfolk‘s reading of the 2007 opinion is further bolstered by the conduct and statements of both the parties and the Maryland courts in response to the Court of Special Appeals’ directive. The transcript of the November 2008 remand hearing reveals that, despite initial debate regarding the case‘s procedural posture, both the parties and the circuit court treated the hearing as a resentencing proceeding. Notably, Woodfolk‘s counsel did not request a reduction of Woodfolk‘s sentence at that hearing, but sought only to reimpose Woodfolk‘s original sentence, in order to finalize the judgment and permit the court to consider the merits of his state postconviction petition. Counsel‘s conduct would have made little sense if the only purpose of the November 2008 hearing were to consider Woodfolk‘s earlier request for a sentence reduction or modification under Rule 4-345. At the conclusion of the hearing, the court issued a new judgment running Woodfolk‘s sentence consecutive to his federal sentence, which did not exist at the time of his March 1988 judgment.
In subsequent state court proceedings addressing Woodfolk‘s criminal judgment—including the most recent circuit court decision modifying Woodfolk‘s sentence in 2016—the Maryland courts have characterized the circuit court‘s November 2008 hearing as a resentencing proceeding. It is not our prerogative to second-guess
Construing the November 2008 hearing as a resentencing, we hold that Woodfolk‘s petition is timely. It is well understood “that a criminal judgment includes both a conviction and its associated sentence.” United States v. Dodson, 291 F.3d 268, 272 (4th Cir. 2002) (internal quotation marks omitted); see Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) (“A judgment of conviction includes both the adjudication of guilt and the sentence.“); Teague v. Lane, 489 U.S. 288, 314 n.2, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) (“As we have often stated, a criminal judgment necessarily includes the sentence imposed upon the defendant.“); see also Greco v. State, 347 Md. 423, 701 A.2d 419, 423 n.4 (1997) (“Under Maryland law, a final judgment in a criminal case is comprised of the verdict of guilty, and the rendition of sentence.“). The Supreme Court has likewise observed that, for purposes of
Our opinion in Dodson is instructive on this point. There, the appellant was convicted and sentenced on five counts of a multicount indictment. 291 F.3d at 270. On direct appeal, we affirmed the conviction and sentence imposed for one count, vacated the conviction and sentence imposed for another count, affirmed the convictions but vacated the sentences imposed for the remaining counts, and remanded for resentencing. Id. Eleven months after we affirmed the judgment imposed on resentencing, the appellant filed a
Although Dodson predated Burton and specifically addressed the
IV.
Having overcome the time bar, Woodfolk may not obtain review of the merits of his claim unless he also can overcome the district court‘s finding of procedural default. “[A] habeas petitioner who has failed to meet the State‘s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Principles of comity accordingly dictate that, “[i]f a state court
“A federal habeas court ‘does not have license to question a state court‘s finding of procedural default’ or to question ‘whether the state court properly applied its own law.‘” Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (quoting Barnes v. Thompson, 58 F.3d 971, 974 n. 2 (4th Cir. 1995)). However, we are obliged to ensure that the procedural rule applied by the state courts is adequate to preclude federal review of the underlying claim. Bacon v. Lee, 225 F.3d 470, 477 (4th Cir. 2000). Whether a state procedural rule is adequate to preclude federal review is a question of federal law. Beard v. Kindler, 558 U.S. 53, 60, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009).
A state rule is “adequate” if it is “firmly established and regularly followed.” Johnson v. Lee, 136 S.Ct. 1802, 1805, 195 L.Ed.2d 92 (2016) (internal quotation marks omitted); see Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (“[A] state rule is adequate
A.
Woodfolk and the State again dispute which of several state court decisions provides the operative procedural bar. As we have previously described, the circuit court concluded that Woodfolk had waived his ineffective assistance claim because he had not challenged his guilty plea on that ground by filing an application for leave to appeal his conviction based on his guilty plеa. See
To determine the basis upon which a state court rejected a habeas claim, a federal habeas court must “look through’ any intervening summary decisions to the last reasoned decision’ of a state court addressing the claim.” Tice v. Johnson, 647 F.3d 87, 106 (4th Cir. 2011) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). “When a state appellate court summarily affirms a reasoned lower-court decision, or refuses a petition for review,” Ylst directs the federal habeas court to “‘look through’ the unexplained affirmance ..., assuming that the summary appellate decision rests on the same ground.” Grueninger v. Dir., Virginia Dep‘t of Corr., 813 F.3d 517, 525-26 (4th Cir. 2016) (quoting Ylst, 501 U.S. at 803-04).
The circuit court‘s opinion applying
Woodfolk‘s argument holds limited water. Generally, the discretionary denial of review by an intermediate appellate court is not a “judgment” that would determine the procedural bar used to deny a claim, but instead is a refusal to consider the claim. See id. at 805-06; Felton v. Barnett, 912 F.2d 92, 94-95 (4th Cir. 1990). Had the Court of Special Appeals simply denied Woodfolk‘s application for leave to appeal, the circuit court‘s decision relying on
Adding further to this complexity, the Court of Special Appeals’ denial of leave to appeal left intact the circuit court‘s prior reasoned decision. And its subsequent denial of reconsideration did not expressly repudiate reliance on
In any event, we need not resolve this quandary here. As we will explain, under the exceptional circumstances presented by Woodfolk‘s case, we conclude that neither procedural bar is adequate to preclude federal review of his ineffective assistance of counsel claim.7
B.
Maryland‘s Uniform Postconviction Procedure Act provides that, except upon a showing of “special circumstances,” an allegation of error raised in a postconviction petition is deemed waived:
when a petitioner could have made but intelligently and knowingly failed to make the allegation:
- before trial;
- at trial;
- on direct appeal, whether or not the petitioner took an appeal;
- in an application for leave to appeal a conviction based on a guilty plea;
- in a habeas corpus or coram nobis proceeding began by the petitioner;
- in a prior petition under this subtitle; or
- in any other proceeding that the petitioner began.
We easily dispatch the Court of Special Appeals’ reliance on
In any event, the application of
C.
Woodfolk also contends that the circuit court‘s reliance on
Nevertheless, the State‘s premise sweeps too broadly in this case. The “consistent or regular application of a state rule of procedural default does not require that the state court show an undeviating adherence to such rule admitting of no exception,” as long as that rule “has, as a general rule, been applied in the vast majority of cases.” Hedrick v. True, 443 F.3d 342, 360 (4th Cir. 2006) (quoting Yeatts v. Angelone, 166 F.3d 255, 263-64 (4th Cir. 1999) (alterations and internal quotation marks omitted)). However, where a state procedural bar has “not been regularly and consistently applied by the state court to a particular type of federal constitutional claim, [it] cannot be considered an adequate state law ground barring federal court review of the merits of that claim.” Brown v. Lee, 319 F.3d 162, 170 (4th Cir. 2003); see McCarver, 221 F.3d at 589.
The Maryland courts have long recognized that ineffective assistance of counsel claims generally will not be considered on direct appeal, but instead should be raised in postconviction proceedings. See, e.g., Stewart v. State, 319 Md. 81, 570 A.2d 1229, 1234 (1990) (declining to consider ineffective assistance claim on direct appeal, observing “that the desirable procedure for determining claims of inadequate assistance of counsel, when the issue was not presented to the trial court, is by way of the Post Conviction Procedure Act“); Harris v. State, 295 Md. 329, 455 A.2d 979, 983 (1983) (declining to consider on direct appeal claim that counsel was ineffective with respect to negotiation and entry of guilty plea). A narrow exception
Conflict-of-interest claims, like Woodfolk‘s, are treated in the same manner as other ineffective assistance claims in this context. Some ineffective assistance claims based on purported conflicts of interest are appropriate for consideration on direct review. See, e.g., Duvall v. State, 399 Md. 210, 923 A.2d 81, 98-100 (2007) (recognizing that conflict-of-interest claims may be addressed on direct appeal when counsel timely raised conflict during pretrial proceedings and trial court‘s inadequate response to identified conflict caused obvious adverse effеct on defendant‘s representation); Smith, 905 A.2d at 325 (addressing, on direct appeal, counsel‘s violation of attorney-client privilege created by conflict in duties to client and to trial court, as trial record revealed all relevant facts and “a collateral evidentiary hearing ... would be superfluous“). But postconviction review remains the appropriate vehicle for raising such claims unless the trial record patently reveals the basis for the claim. See Mosley, 836 A.2d at 689 n.11 (observing that conflict-of-interest claim should be reserved for postconviction proceedings “where the trial record does not conclusively reflect how the conflict of interest adversely affected counsel‘s performance,” and collecting cases); Pugh, 654 A.2d at 897-99 (discussing rule and collecting cases).
Even in the narrow subset of ineffective assistance claims cognizable on direct review, the mere fact that a petitioner may be permitted to raise an ineffective assistance of counsel claim on direct appeal does not require him to do so in order to preserve review of that claim in postconviction proceedings. The State points to no case in which a defendant waived consideration of an ineffective assistance claim in a postconviction petition by failing to raise the claim on direct review. Maryland authоrity squarely contradicts such a premise. See, e.g., Johnson v. State, 292 Md. 405, 439 A.2d 542, 559 (1982) (“[U]nder the settled rules of appellate procedure, a claim of ineffective assistance of counsel not presented to the trial court generally is not an issue which will be reviewed initially on direct appeal ..., although competency of counsel may be raised for the first time at a section 645A post conviction proceeding.” (citations and internal quotation marks omitted)), overruled on other grounds by Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988); Davis v. State, 285 Md. 19, 400 A.2d 406, 414 (1979) (acknowledging that ineffective assistance claim not raised on direct appeal “was squarely before the post conviction court,” as ineffective assistance “may be raised for the first time under post conviction procedures“); Cooper v. State, 44 Md.App. 59, 407 A.2d 756, 762 (1979) (recognizing that, although ineffective assistance claims were
The State argues that, because Woodfolk pled guilty, he was required to preserve any ineffective assistance challenges to his guilty plea, for review on federal habeas or otherwise, by filing an application for leave to appeal his conviction. We have found little authority to support this contention. To be sure, as the State observes, a Maryland defendant convicted pursuant to a guilty plea may challenge his criminal judgment on direct appeal by filing an application for leave to appeal within 30 days after entry of the criminal judgment. See
Tellingly, however, the authorities upon which the State relies do not address the application of
Crucially, the State fails to point to a single case in which the Maryland courts have barred review of an ineffective assistance claim on postconviction review because it was not raised in an application for leave to appeal a conviction based upon a guilty plea. Our research reveals a paucity of relevant authority. We have identified several cases, each arising in the
Our review has revealed more cases, also primarily arising in the
We find further support for our conclusion from McCarver, in which we considered the adequacy of a similar North Carolina procedural rule barring postconviction review of a claim that could have been, but was not, raised on direct appeal. 221 F.3d at 588-90. The North Carolina Superior Court had relied upon this rule to find the habeas petitioner‘s ineffective assistance claim procedurally barred on state postconviction review. Id. at 589. Recognizing the North Carolina Superior Court‘s explicit finding that the petitioner could have raised his claim on direct appeal, we concluded that the adequacy of the bar must be evaluated by reference to whether the rule was regularly and consistently applied to procedurally analogous claims—that is, ineffective assistance claims that could have been raised on direct appeal. Id. Although we observed that ineffective assistance of counsel claims ordinarily are more appropriately raised in postconviction proceedings under North Carolina law, we rejected the petitioner‘s assertion that those claims should be treated as categorically different from other types of claims that could be barred by the waiver rule. Id. We found the procedural bar adequate after determining that the petitioner‘s claim fell within a recognized exception to the general rule precluding ineffective assistance claims on direct appeal, and that
McCarver is distinguishable from Woodfolk‘s case on several fronts. First, the circuit court never found that Woodfolk‘s ineffective assistance claim was within the narrow class of ineffective assistance claims that could be raised on direct appeal under Maryland law. Rather, the court appeared to find the opposite, specifically acknowledging that “a post conviction proceeding is the proper forum for ineffective assistance of counsel claims” but determining that Woodfolk‘s claim was barred only because he “must follow proper procedures to be considered for post conviction relief.” Woodfolk v. State, No. 28735804, at 6 (Cir. Ct. Balt. City filed Feb. 1, 2011 & entered Feb. 7, 2011) (unpublished opinion). In so doing, the court implied that, in order to pursue his ineffective assistance claim in a postconviction proceeding, Woodfolk had to undertake the futile effort of filing an unripe claim on direct appeal, where, at best, it would be rejected as premature or, at worst, barred from future consideration after being decided on an inadequate record. See
Further, unlike the state rule at issue in McCarver, those cases in which
We acknowledge that “a state procedural bar may count as an adequate and independent ground for denying a federal habeas petition even if the state court had discretion to reach the merits despite the default.” Walker v. Martin, 562 U.S. 307, 311, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011). We also recognize that “[a] discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies” in its application. Id. at 320. Here, however, the application of the state procedural bar to Woodfolk‘s ineffective assistance claim facially conflicts with Maryland‘s well established and apparently unqualified authority authorizing merits consideration of that type of claim. Even assuming that the Maryland postconviction courts simply exercised their judicial discretion in prior cases to conduct merits review of ineffective assistance claims that otherwise would have been barred by
While we do not contest the state courts’ authority to impose this bar, as a matter of state law, on Woodfolk and other petitioners, we conclude that the State falls far short of satisfying its burden to demonstrate that
V.
In denying Woodfolk‘s petition on procedural grounds, the district court did not opine as to the merits of Woodfolk‘s claim. Relying on Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), Woodfolk requests that we address the substance of his ineffective assistance claim in the first instance and direct the district court to grant him habeas relief.
To establish ineffective assistance of counsel based on a conflict of interest that was not raised before the trial court, the defendant must demonstrate that (1) counsel operated under “an actual conflict of interest” and (2) this conflict “adversely affected his lawyer‘s performance.” United States v. Dehlinger, 740 F.3d 315, 322 (4th Cir. 2014) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). If the defendant satisfies this showing, prejudice is presumed, and the defendant need not demonstrate a reasonable probability that, but for counsel‘s conflicted representation, the outcome of the proceeding would have been different. United States v. Nicholson, 611 F.3d 191, 205 (4th Cir. 2010).
A defendant demonstrates an actual conflict when he shows that his counsel “actively represented conflicting interests.” Sullivan, 446 U.S. at 350. “A defendant has established an adverse effect if he proves that his attorney took action on behalf of one client that was necessarily adverse to the defense of another or failed to take action on behalf of one because it would adversely affect another.” Mickens v. Taylor, 240 F.3d 348, 360 (4th Cir. 2001) (en banc); see Jones v. Polk, 401 F.3d 257, 267 (4th Cir. 2005). We have articulated a three-part standard for demonstrating adverse effect, which requires the defendant to (1) “identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued,” (2) show that this strategy “was objectively reasonable under the facts of the case known to the attorney at the time,” and (3) show “that the defense counsel‘s failure to pursue that strategy or tactic was linked to the actual conflict.” Dehlinger, 740 F.3d at 322 (quoting Mickens, 240 F.3d at 361).
The adverse effect inquiry is often fact dependent, mandating due deference to the factfinder. See United States v. Nicholson, 475 F.3d 241, 252 (4th Cir. 2007) (internal quotation marks omitted). Further, because an actual conflict of interest requires not only a theoretically divided loyalty, but also a conflict that actually affected counsel‘s performance, the actual conflict and adverse effect inquiries frequently are intertwined. Jones, 401 F.3d at 267.
According to Woodfolk, the State has not contested that Vogelstein represented Woodfolk and Langley as joint defendants on related charges and advised Woodfolk to plead guilty in exchange for Langley‘s more lenient treatment. These facts, Woodfolk argues, readily support the existence of both an actual conflict and an adverse effect. Woodfolk proffers several alternative strategies that he claims counsel reasonably could have pursued, but declined to pursue, because of the conflict. Contending that the undisputed record readily establishes these findings, Woodfolk argues that the claim is ripe for consideration.
In opposition, the State contends that Woodfolk‘s claim is not yet ripe and that
While the facts in the available record raise disturbing questions regarding the representation Woodfolk received during his March 1988 plea proceedings, we conclude that this case falls outside the unusual circumstances in Bostick that would permit us to resolve the claim in the first instance. In Bostick, we addressed the merits of an ineffective assistance claim not passed upon by the district court when the state did not challenge our authority to address the claim, the facts were undisputed, and the “unambiguous factual record” clearly supported one result. 589 F.3d at 166. Woodfolk‘s allegations, if true, readily support his contention that his counsel labored under an actual conflict. See United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991) (“When the attorney is actively engaged in legal representation which requires him to account to two masters, an actual conflict exists when it can be shown that he took action on behalf of one.“); Hoffman v. Leeke, 903 F.2d 280, 286 (4th Cir. 1990) (“It is difficult for us to understand, and indeed we do not, how advising one client to give a statement and testify to the essential elements of a crime allegedly committed by a second client is not a conflict of interest.“). However, those allegations are supported largely by Woodfolk‘s own testimony and affidavit, which may be tempered by other evidence of record, such as the transcript of his October 1988 guilty plea proceeding and evidence shedding light upon the strength of the State‘s case against him.
The parties seemingly agree that Vogelstein represented both Woodfolk and Langley on related charges, and that Langley received a stet while Woodfolk was sentenced to a term of incarceration. The parties dispute, however, both the extent to which this apparent conflict impacted counsel‘s representation of Woodfolk and the rеasonableness of the remaining alternative strategies Woodfolk proffers. While we express no opinion as to the ultimate merits of Woodfolk‘s claim, we reserve the appropriate resolution of these factual questions for the district court on remand.
VI.
For nearly 30 years, Woodfolk has contended that his guilty plea was procured by an attorney who served two masters, thereby betraying his duty of loyalty to Woodfolk in exchange for a favorable outcome for Woodfolk‘s codefendant. No court, state or federal, has ever addressed the substance of these troubling allegations. Having found no time bar or adequate state procedural bar to preclude a review of the claim on its merits, we believe the time has come for a fair adjudication of Woodfolk‘s claim. Accordingly, we vacate the district court‘s judgment denying Woodfolk‘s
VACATED AND REMANDED