Gregory Warren Beaver v. Charles E. Thompson, Warden

finding makes a on status accountant, as a its lawyer, its corporate di- Janne/s fiduciary under ERISA. owns, rector of a company it plumber. or its SLOVITER, Before: Judge, Chief Finally, if the district court finds that state STAPLETON, GREENBERG, SCIRICA, law claim is not pre-empted, it will then have COWEN, NYGAARD, ALITO, ROTH, if determine the claim is time-barred as LEWIS, McKEE, Judges, Circuit Janney contends. See Zimmer v. Gruntal & GIBSON, Senior Judge*. Circuit Co., Inc., (W.D.Pa. F.Supp. 1989) (“breach fiduciary duty is tortious subject year conduct and to two statute of SUR PETITION FOR REHEARING period, 5524(7)”). limitations 42 Pa.C.S.A. Sept. petition for rehearing by filed appellee V. in the above entitled case having been sub- reasons, For foregoing the we will affirm mitted to judges who participated in the grant summary judgment in favor of decision this court and to all other avail- Janney II, on Count the federal common law able judges circuit regular circuit claim, and will grant reverse the summary service, active judge no who concurred in

judgment Janney I, in favor of on Count having decision rehearing, asked for claim, III, ERISA and on Count the state majority of the circuit judges of the circuit claim, law proceed- remand for further regular active service not having voted for ings opinion. consistent with rehearing by bane, petition rehearing is denied. STAPLETON, Judge, Circuit concurring: join I of the court. I write

separately I would because resolve the issue preempts whether ERISA a state law that impose

would a fiduciary duty of disclosure Gregory Janney BEAVER, under the circumstances Warren of this ease. Petitioner-Appellant, The district court properly addressed legal issue, resolved that its resolution will not by be affected development further E. THOMPSON, Charles Warden, record, and, in the interest of conserv- Respondent-Appellee. ing judicial resources, I provide district court with the benefit of our view on No. 95-4003. that issue. United States Court of Appeals, Applying the principles that we reviewed Fourth Circuit. Wire, United I would hold that if Janney is Argued fiduciary ERISA Sept. under 1995. § 1002(21)(A),a imposing state law a fiducia- Aug. Decided ry duty of disclosure on it would not be preempted by ERISA, ERISA. by spelling

out fiduciary who is a respect plan to a

and its participants, defines the area of fed-

eral concern in preemption required.

Beyond area, I would hold that a state continue,

can by generally applicable law, prescribe duties, fiduciary or other- wise, owed broker, to a plan just its

way continue, it can by a generally applicable

law, prescribe plan duties to a owed

* As Rehearing Only. to Panel denying him

that the district court erred Virginia’s evidentiary hearing and that capital is unconstitutional. murder statute We affirm.

I. 12, 1985, April killed On Beaver shot and Trooper Virginia Po- Leo Whitt State in during stop lice a traffic on Interstate 95 George County. riding A Prince hitchhiker Trooper in the car with Beaver testified that requested regis- Whitt Beaver’s license and tration. Beaver instructed the hitchhiker to glove compartment for look the docu- Trooper the front ments and Whitt moved to appeared of the car and to write down the plate displayed a in the number of license front windshield. As the officer returned to window, in- the driver’s side the hitchhiker formed Beaver that he could not find the registration. gun license or Beaver raised a then, Trooper Whitt and as the shot once trooper struggled gun, for his own a second time, causing ground. the officer to fall to the Christopher Martin McMur- ARGUED: away Beaver drove and continued north on Lockhart, Washington, ray, Kirkpatrick & Interstate until he exited a road. onto side Harris, D.C., Quentin Appellant. Robert for stopped Beaver at a fast food restaurant General, At- Attorney Office of the Assistant change tags. near Richmond to the license Richmond, General, torney Virginia, Ap- for He followed the hitchhiker into the restau- Casey, pellee. BRIEF: M. Kirk- ON Susan Pretending rant and went into the restroom. D.C., Lockhart, patrick Washington, for & order, place the hitchhiker told res- Gilmore, III, Attorney Appellant. James S. employee police taurant to call the because Attorney Virginia, General of Office troop- the man he was with had shot a state General, Richmond, Virginia, Appellee. for er. WIDENER, HALL, LUTTIG, Before charged capi- Beaver was convicted of Judges. Circuit willful, deliberate, tal murder for the premeditated killing of a law enforcement by published opinion. Judge Affirmed purpose interfering officer for the with his majority opinion, WIDENER wrote duties, official the use of firearm joined. Judge HALL Judge LUTTIG felony commission of a in violation of Va. dissenting opinion. wrote a 18.2-31(f) §§ Code and 53.1. He was sen- capital tenced to death for murder. The OPINION Maclin, appointed represent John IV WIDENER, Judge: Circuit appoint Beaver. Maclin asked the court to Gregory appeals the. dis- him, Warren Rainey, Rainey III T.O. to assist he and corpus trict denial of a writ of habeas court’s having together worked of a the defense of conflict of interest of one of capital his claims previously. case In addition to his attorneys private practice, Rainey part- and also otherwise ineffective law served as prosecutor neighboring counsel which includes a claim Din- assistance of time assistant guilty plea. County.1 of an invalid He also asserts widdie part-time job. 1. Some after the trial became the also a months Attorney County, Commonwealth’s for Dinwiddie (1981).2 The court July 1985 and S.E.2d 885 also found to trial on The ease came the claim that the Commonwealth 9,1985 July jury selected. On agreement plea breached the was barred be charges plea guilty on both changed his had not cause Beaver raised this issue at agreement. Fol plea according to a written all, appeal. In trial or on direct the state July sentencing hearing starting on lowing a court denied or dismissed ten of Beaver’s September continuing on 9 and evidentiary twelve claims and scheduled an beyond a reasonable doubt court found trial remaining to address the claims of probability that Beaver was “a there ineffective assistance of counsel and conflict acts of violence that would commit criminal Following day evidentiary of interest. a two [sp] and seri constitute a continuance hearing May September 1991 and § society.” Va.Code 19.2- ous threat to See 1991, adopted the court the factual Rainey represented Beaver presented by and and de 264.2. Maclin Commonwealth Thomp nied these claims as well. Beaver v. Supreme of appeal to the Court on direct son, 88-13-H.C., No. Cir. Ct. of Prince affirmed his conviction and Virginia which Co., 10,1992. George Sept. appealed Beaver sentence, Supreme of the and the Court Supreme Virginia af to the Court Beaver v. denied certiorari. United States firmed, Supreme and the Court of the United 342, Commonwealth, 521, 232 Va. 352 S.E.2d Thomp denied certiorari. Beaver v. States 3277, denied, 1033, 107 97 483 U.S. S.Ct. cert. (Mar. son, 9, 1993), Record No. 921832 cert. L.Ed.2d 781 denied, 879, 219, 114 510 U.S. S.Ct. (1993). Having L.Ed.2d 175 exhausted state court-appointed aid of different With the remedies, petition Beaver filed a for a writ of counsel, for a writ of petition Beaver filed a corpus habeas in the District United States corpus in the Circuit Court of Prince habeas Virginia Eastern Court for the District George County. That court found that the 3, March 1994.3 The district court denied conclusively proceedings record of the trial evidentiary request hearing, for an voluntarily plea was and established that claims, and denied his dismissed the habeas understanding full intelligently made with a motion for reconsideration. Beaver v. consequences plea and also that (E.D.Va. Thompson, No. C.A. 3:94CV149 1995). under the rule 25, 1994; 13, habeas relief should be denied Nov. Jan. Beaver then Warden, appeal. v. Va. 281 filed of Anderson Anderson, petition publicity Claim VI: Pre-trial so infected the the court denied a habeas In involuntary guilty plea deprive impartial due to based on a claim trial as to Beaver of an the alle- process ineffective assistance of counsel because jury and due of law. contrary gations proof petition and in the VII: The court’s failure to strike for Claim petitioner's representations at trial that the jurors impartial who could not be cause knowing voluntary. plea No sufficient was right impartial prejudiced Beaver's to an giv- impeach proceeding the trial was reason jury. en. Supreme Virginia Court's Claim VIII: The inadequate proportionality review was so following in his federal 3. Beaver raised the issues superficial deprive as to Beaver of his petition: court habeas district meaningful right adequate to an review. man- Claim I: Counsel's conflict of interest admitting court erred in Claim IX: The trial corpus dates habeas relief. sentencing phase unreliable evidence of guilty plea Claim II: Beaver's was not know- alleged for which Beaver had neither crimes intelligently ingly made. convicted. been tried nor alternative, Claim III: In the the Common- Virginia's capital murder statute and Claim X: plea agreement with wealth breached the sentencing procedures are unconstitutional ambiguous as a matter of [which Fifth, applied, facially under the and as law]. Eighth, and Fourteenth Amendments to repre- Counsel were ineffective in Claim IV: States. Constitution of United guilty senting Beaver in connection with the circuit to consider Claim XI: The court failed plea sentencing hearing and at the and on adequately mitigating all circumstances and appeal thereby preju- and Beaver was direct support finding the evidence did not diced. dangerousness beyond a reasonable psychiat- future Claim V: Beaver was denied effective preparation doubt. ric assistance in of his defense. III.

II. ap- following issues on raises address first Beaver’s claim We (1) deprived of his constitutional peal: he denying request his district court erred disqualifying from attorney free an right to evidentiary hearing. have held that a We (2) interest, guilty plea was not his conflict of evidentiary hearing should be held on a new voluntarily made and resulted knowingly and (1) petitioner petition when the habeas (3) counsel, assistance from ineffective that, true, alleges if additional facts failing to investi- were ineffective (2) relief, any entitle him to establishes about his vital evidence gate factors set out the Court one of the six handling psychiat- in their background and Sain, 372 U.S. Townsend (4) evidence, district court erred ric (1963)(overruled part 9 L.Ed.2d 770 (5) evidentiary hearing, and failing to hold an Tamayo-Reyes, Keeney v. 504 U.S. murder statute is uncon- Virginia capital (1992)), L.Ed.2d 318 or one of of law in of matters Our review stitutional. 2254(d).4 provided in 28 U.S.C. the factors is de novo. court’s decision the district (4th Cir.), Poyner Murray, 964 F.2d 1404 applicable here will review Our decision denied, 419, 121 cert. law and standards as questions under the (1992). Keeney overruled the may they exist without reference existed or hearing requirement for a in a Townsend Death and Effective to the Anti-terrorism (absent bypass) deliberate where the case 104-132, April P.L. Penalty Act of adequately developed material facts were not adopting a stan- such 1996. Our reason court, that a federal in the state and held provisions that is that all of dard of review prej petitioner habeas must show cause and I, Corpus Habeas under Title Act either develop udice to excuse failure to material Chapter Special Habeas Cor- Reform or proceedings. in facts state court Cases, which could pus Capital in Procedures spell any Even now Beaver does not out at at any on the case hand are have effect right hearing a under the factors men- the Commonwealth and least as favorable to Townsend, 313-18, tioned 372 U.S. at prisoner than the exist- less favorable to the 757-60, at or the factors mentioned in will decide this case. ing law under which we 2254(d). Rather, generally § he claims that position that the the Because Beaver takes proceedings not full applied, the state habeas were not be Anti-terrorism Act should and, and fair because “Beaver’s habeas counsel the doubt give will him the benefit of permitted depose pre-trial that it were not deciding question, [in the assume without counsel, depositions] especially of this decision. Beaver’s trial purpose for the does not (4) jurisdiction the State of 24, 1996 Act which moved that court lacked to the Prior April subject 2254(d) 2254(e) matter over the the the or of § § deleted the person excep- proceeding; in the State court correctness of state applicant (5) of tions to the presumption indigent 2254(d) that the was an applicant 28 U.S.C. stated: fact, of court, the State of his consti- deprivation proceeding in a instituted Federal In any right, tutional failed to appoint for a writ of habeas Court an application by proceeding; him in the State court represent to the a in custody pursuant (6) corpus by person full, did not receive a applicant judgment court, determination State hearing fair, and in the State court adequate hearing issue, on the merits of a factual after a proceeding; or evidenced [and] a State court ... (7) made by by was otherwise denied applicant finding, or other reli- written written opinion, due of law in the State court process pro- indicia, written shall be able and ceeding; adequate (8) correct unless to be applicant or the record presumed unless part or it shall otherwise proceeding shall establish appear, State court in which the determi- admit— shall made, nation of such factual issue was respondent perti- (1) of the factual the merits nent to a determination dispute sufficiency hearing; were not resolved in the State court evidence such factual determi- support (2) factfinding nation, as for hereinaf- procedure employed produced provided State court was not to afford ter, and the Federal court on a consideration adequate by hearing; a full and fair of such of the record as a whole con- part (3) were not ade- cludes that such factual determination is not the material facts hearing; at the State court record. fairly supported by quately developed appeal, ruling court “limited the direct we do not think that Rainey;” and the state would be an abuse of discretion. expert testimony two of Beaver’s wit- permit at all the testimo- and did not nesses We find no fundamental error at all in the expert on conflict of interest.” ny of the rulings pro- on evidence in the state habeas p. 49. Brief ceeding, much less error of such constitu- tional dimension that it should affect this col- per- discloses that Beaver The record proceeding. lateral Cf. Grundler v. North interrogatories to his trial at- to file mitted Carolina, (4th Cir.1960). 283 F.2d proceedings. torneys in the state habeas interrogatories describes such as While he in the state habeas court last- “limited,” any placed part days. limitations ed the better two The wit- Also, by father, nesses called he does not disclose. al- included his upon them uncle, ex-wife, mother, grandmother, reply and a though complains Beaver now brief psychol- half-sister. He also called a forensic permitted by that he was not to discover Cornell, ogist, attorneys, Dr. and two Boone Rainey percentage of the deposition of Cooley, expert witnesses. Beaver county Rai- criminal cases handled complain prevented does not that he was ney, an examination of the record does not calling any from witnesses. There was no questions that he asked these disclose any undue limit on the cross-examination of Rainey Rainey testified in the state when Commonwealth, witness called events, proceeding. In all the record habeas Rainey both Maclin and testified and were trial, Rainey’s at the time of the shows that now, length. cross-examined at Even Din- participation in the criminal courts of not claim does that his cross-examination of minimal, 2-5%, very County was some widdie pro- Maclin and in the state habeas writing appeals. than other brief limited, ceeding unduly if limited all. also note that Beaver his brief does We There is no indication the state habeas hear- identify by not name of witness content fair, ing was not full and and we hold that it expert testimony he now com- witnesses’ was. permitted, plains was limited or not but we any The record does disclose testimony of have nevertheless examined the sought-for procedural consideration the state Cornell, Dewey psychologist G. a forensic reasonably habeas court should have extend Boone, Cooley Craig S. and David attor- ed to Beaver and did not. We thus hold that neys, expert who are all of the witnesses who assignment of error is without merit. in on behalf of Beaver the state testified hearing. habeas We have also examined the IV. transcript of the state habeas with We next consider Beaver’s claim that Vir- testimony respect to the offered of one David capital ginia’s murder statute is unconstitu- ethics, Rosenberg, expert legal an on who tionally vague because of a claimed conflict upon testify that in would have been called 19.2-264.2, argues § which Beaver between Rainey’s employment part- as a his dangerous- of future restricts the evidence attorney for Dinwiddie time Commonwealth’s past ness to the defendant’s criminal record County legal was a breach of ethics. Such convictions, 19.2-264.4, of which has opinion would have been offered as evidence permit been construed to the introduction of support sought-for con- which tended alleged evidence of crimes for which the de- clusion that had unconstitutional charged has neither nor con- fendant been conflict of interest. The state court did not any argument goes The such victed. permit testimony ground on that it impossible for a defendant conflict makes expert in did not need the assistance of an can to know what kind of evidence be used determining against Even if this were a him.5 the issue. robbery attorneys no here that Beaver did not have His knew about the of his There is claim prior step-father to the evidence with re- and discussed the matter notice spect ther, the introduction of robbery stepfa- only any 745-746. allusion to state to an incident of his of his trial. JA The might misrepresen- Ap- on a he had not been convicted. of affairs which border facially parently, tation claim concerns the construction of the claim is that the statute is so thoroughly plea agreement vague unconstitutionally which has been as to be invalid.

1192 Rainey’s testimony that was based on rejected by Virgi This argument

This felony LeVasseur v. Com a handful of cases Supreme Court he had tried nia 564, 644 monwealth, 304 S.E.2d 225 Va. during employment for the Common- denied, 1063, 104 (1983), 464 U.S. S.Ct. cert. and that he wealth between 1978 1985 (1984). See also Jurek 744, 202 L.Ed.2d 79 required regularly appear was not 2950, 262, Texas, 96 49 428 U.S. v. County excep- in Dinwiddie with the courts (1976); v. Common Smith 929 L.Ed.2d juvenile Petersburg. The court tion (1978), 455, wealth, 248 S.E.2d 135 219 Va. position on his court also found that based 2419, 967, denied, 99 S.Ct. 441 U.S. cert. Commonwealth, Rainey had no (1979). rejected this same We L.Ed.2d 1074 any working relationship with of the wit- 882, Murray, 904 F.2d claim in Peterson trial, regular relation- at Beaver’s no nesses denied, 992, Cir.), (4th cert. 498 U.S. 885 n. regular ship troopers, and no with state (1990). 537, We 111 S.Ct. relationship physicians working with the matter here and to reconsider decline Hospital. The court from Central State merit. claim is without that the decide presented no evidence found that Beaver had Rainey’s V. conduct of the defense part- any way by his status as a altered A. attorney in Commonwealth time assistant a claim of conflict of prevail To County. finding that the Dinwiddie On its convincing interest, evi must present- trial and the evidence record of the resulting conflict and a an actual dence of hearing supported at the habeas the Com- ed performance. Sumner effect on adverse proposed findings fact and monwealth’s Mata, 770- 449 U.S. law, adopted the court conclusions (1981); Cuyler v. Sulli 66 L.Ed.2d findings of incorporated the Commonwealth’s 345-58, van, 8,1992. July fact into its order of 1716-23, 64 L.Ed.2d that the of fact did not concluded conflict, actual As evidence Rainey’s support allegations that testimony at Rainey’s the state points to employment the Commonwealth violated hearing that from time to time he habeas right Amendment to counsel free his Sixth grand represented the Commonwealth adversely af- from conflict of interest which prosecutions jury and criminal proceedings Rainey’s fected defense. most of the briefs submit- and that he wrote by appeal criminal cases the Com- ted for of Applying presumption of correctness points attorney. Beaver also monwealth’s findings of histori- to the state habeas court’s testimony that in his duties as assis- Rainey’s 2254(d), § according cal fact the district in Din- attorney for the Commonwealth tant affirmed the state habeas court’s deter- working County, professional he had a widdie no actual conflict in mination that there was officers, law-enforcement relationship with Rainey’s representation of Beaver. Troopers, and that including Virginia State help occasion investi- officers would on opinion factual We are also of that the testify gate and on behalf the Com- cases sup of the state habeas court are monwealth. by to a ported the record and are entitled prior that habeas court found The state 2254(d). presumption of correctness under representation of during time of his and objections The to them have been Beaver, Rainey’s duties as an assistant Com- part considered III above and held to be attorney County for Dinwiddie monwealth’s thus conclude that Bea- nature and number. without merit.6 We were limited both court, Ramey's factually explored by 6. The extent of work for the Common- the state habeas explored was on cross-examination of wealth by well as district court and us in Part VI , Rainey — who testified that: opinion. Gray U.S. Cf. Netherland way particular job that the in our situation 2074, 2081-83, -,-, very designated, part it was time. One per dollars month when I started. hundred very competent performance by a conflict of interest of revealed a failed to show ver has counsel, that affirm the district court’s defense Goodson had not Rainey, and we suggested anything might issue.7 habeas relief on this which have been denial of for him in trial

done the state court which done, anything was not that was done B. that should not have been done. We con- fact argues also that the mere cluded that Goodson suffered no actual part-time a Commonwealth’s prejudice and held that Goodson was County attorney neighboring Dinwiddie entitled to relief because “there was no con- per conflict of interest which established a se at 909. flict.” 351 F.2d We added a dic- disqualify representing him from Bea would tum, however, might well be ” claim of incom and establish Beaver’s ver (italics “workable rule add- for future a matter of law. The petence of counsel as ed) per would be a se one in which it would goes ease of Goodson v. argument presumed represented by be that one so Cir.1965) (4th Peyton, 351 F.2d 905 estab public prosecutor had not had a fair trial. held, rule. The district court lished concluded, however, The district court however, sought-for that Beaver’s construc respect the dictum with future estab- broad, agree. tion of was too we Goodson rule, per again agree. lished no se we Goodson, a case in which Goodson was us, In the case before the facts are escape prisoner, had convicted of been Goodson, indistinguishable from those in County. of Powhatan the Circuit Court we come to the same conclusion. Because charge represented he was

On that case, attorney there is no conflict of interest in this court-appointed who was the Com- Attorney neighboring is not entitled for Cum- to relief.8 Accord: monwealth’s (10th Cir.1969). Baker, County. found that the record Jones v. 406 F.2d 739 berland We vacation, trial, Lane, Teague Elder wanted to take which fair 288, the rule of When Mr. (1989), might year, two weeks of the I would cover for 103 L.Ed.2d 334 be weeks, might prevent imposition, per these two mean I would him on its se rule twice, possibly general would hold district court these would new would circumstances be juvenile applied proceeding. court situation. If there were one circuit first be in a collateral Be- cases, specifically juvenile and domestic relations cause hold there has been no conflict of where a detention was be- part Rainey, sought-for criminal cases ing interest on the and the City Petersburg, law, he would held in the call per se rule is not the we do not reach the appear upon rare me to there on those occasions question Teague or not would have whether once, appeared happened. when that I believe I any application. more, might grand jury have been before when Mr. We are that a dictum in further My appear- Elder was out of town on seminar. (4th Cir.1967) Peyton, (per F.2d 57 Yates v. fairly occasionally time. He ances were limited in curiam), referring per to a in Goodson se rule me to take a circuit court case so that I ask we have referred to the dictum in Goodson getting experience.... up was some And I ended body mentioned above. As indicated in the writing had to to send most of the briefs he write opinion, per we there is no such rule this hold se Supreme on to the Court at that time. And that in this circuit. my job. was the nature of Teague pleaded The mere fact that has been a bar to the consideration of a matter raised show 7. Because Beaver has failed to conflict of interest, "engage require collateral does not us to we do not need to address Beaver's .review Teague inquiry [as in the threshold in a case he not waive conflict of counsel. claim that did However, prisoner here] the state court's of fact that in which it is clear that the Rainey regularly the he seeks even if his informed all clients criminal not be entitled to relief prosecutor Wright pending cases that he was an assistant case were on direct review.” v. West, 277, 306, 309, County, had Dinwiddie and that Beaver knowl- 505 U.S. 112 S.Ct. 2498, 2499, objection (1992) (Justice edge expressed of this and no to Rai- 120 L.Ed.2d 225 Ken- ney's representation supported by Youngblood, are the nedy concurring, citing of him Collins v. 2715, record as well. 497 U.S. 110 S.Ct. 111 L.Ed.2d 30 (1990)). position Interestingly, does not the that the Commonwealth 8. The Commonwealth takes Beaver, adopted position plead Teague the consideration of the that as a bar to even if we the challenge representation by public prosecutor vagueness to statute discussed in the the mere neighboring county deprives an accused of a Part IV above. in a respect misunderstanding. to claimed VI. argument goes The that this makes for inef- validity of his challenges the next fective counsel. plea grounds plea guilty on knowingly involuntary not because was support in the record to The evidence and because ineffective intelligently made testimony is the of Maclin at the contention of counsel. assistance hearing during habeas some time following sentencing event took agreement ambig- was argues that the He place: and thus should be construed uous on its face justify as to so

against Harris, the Commonwealth Q: (By attorney Mr. for the position that the Commonwealth his Commonwealth) your it recollection Is penalty or agreed not to seek the death had this comment was made some dangerousness at future show evidence of time while Commonwealth hearing. sentencing presenting evidence? argues a remark he made to He next presenting A: It would have to be either sentencing hearing attorney during the evidence or cross-examination. by his attor- have been communicated should Q: question given And the that was to ney as an indication of his misun- to the court you by your they client was “Can do derstanding plea agreement and that this?” attorney’s representa- doing not made his so Something A: to that effect. tion ineffective. Q: you any response him at Did have contained the follow- plea agreement that time. ing passage which is that contention: said, “Yes, likely pur- A: I more than it’s agrees argue not to The Commonwealth agreement.” suant to our agrees to The Commonwealth sentence. A. 6249 of sentence to the court submit the issue Nothing until more was said of the event comment. without the matter of counsel was raised ineffective just argues language quot- that the after the trial. may ambiguous ed is and that be construed Upon entry guilty plea, of Beaver’s require that the offer no Commonwealth following question appeared and answer respect sentencing or that evidence with the record: would not seek the death Commonwealth (The Court) Q: you Do understand that penalty. exchange your guilty, plea for Neither these constructions Commonwealth, through the Common- plea agreement put forth at trial or on Attorney, agrees simply wealth’s court de appeal direct and the state habeas argue the issue of sentence and that question procedurally barred cided the agrees the Commonwealth to submit Slayton Parrigan, 215 under the rule of appropriate the issue of sentence to denied, (1974), Va. cert. S.E.2d 680 argument the court without or com- 42 L.Ed.2d 804 419 U.S. That ment. is the sum total of the held that The district court obligation you Commonwealth’s un- finding adequate and inde of default was negotiated plea der the terms of the pendent refusing ground state law habeas agreement? relief, corpus again agree. Coleman Yes, A: Sir. 722, 729-30, Thompson, (1991). 2546, 2553-54, 115 A. previously following proceedings Just argues that the fact that he

Beaver next were had: agreement was communi- misunderstood the (The Court) Q: sentencing Under the second indict- attorney during cated to hearing, attorney you plead [sp] but his took no action with ment to which have request quest 9. made the was made to Maclin. Beaver testified that he Rainey. the re- The state habeas court found presentation p. tion and of evidence. Brief capital murder of guilty, that is the purpose of inter- police officer for the claims that his counsel 43-48. Beaver first of- performance of his fering with the investigation adequate failed to conduct indictment, duties, if ficial under mitigation present significant and to evidence your you guilty under the court finds members, testimony family helpful and from guilty upon and the evidence plea or they not have relied on and should permissible sentences the two reports agencies of various social service and two, are, one, death, and life probation officers the record. penitentiary? (Mr. Beaver) Yes, sir. A: attorney duty A defense has a A. 171. investigation mitigating into make reasonable following made the The state habeas court Washington, factors. Strickland U.S. findings fact relevant to this issue: 691, 104 2052, 2066, 668, 80 L.Ed.2d 674 1) fully explained plea Defense (1984); Thompson, Barnes v. 58 F.3d 50, 168-69, agreement to Beaver. JA — (4th Cir.), denied, -, cert. U.S. 172, 626. 133 L.Ed.2d 64 U.S.L.W. 2) fully meaning aware of the Beaver (1995). However, allegation of inad 50,172- argument and comment. JA equate investigation does not warrant habeas 73. proffer of what favorable evi relief absent 3) Beaver’s The Court does not believe testimony pro dence or would have been testimony example 57-58] at JA [for Thompson, 915 F.2d duced. Bassette plea agree- that he misunderstood the (4th denied, Cir.1990), 940-41 cert. U.S. thought the Common- ment or that he 1639, 113 L.Ed.2d 734 offering prevented from evi- wealth was dence. JA 50. father, Sandy Beaver now asserts that his 4) voluntarily pleas made Beaver, testify should have been called to a full understand- intelligently Beaver’s obsession with his mother about pleas. consequences of the ing of the testimony important be- and that 8, 50, 72,168-73. JA encouraged his mother who cause was 5) attorneys that his Beaver did not claim drugs petty aided his involvement plea agreement him had told that the mother, May also claims that his crime. He could meant the Commonwealth Lowers, testify have been called to should his criminal not offer evidence show son, drugs consumed with her that she 50-51, 364, history. JA 463. away him when he ran from rehabili- she hid 6) pursue admits that he did that she was the one programs, tation any question that some with his counsel robbery planned the of the Crossroads who excluded be- evidence should have been whom Beaver Inn owned her ex-husband plea agreement. JA cause a crowbar and knife allegedly assaulted with robbery. Beaver also claims during the 7) attorneys that never advised his only about his his counsel asked his wife plea agree- he did not understand testimony illicit drug abuse and failed to 51,460-62. JA ment. about, specifi- things she knew about other supported of fact are These him cally influence on his mother’s Therefore, finding affirm the record. robbery. Inn Crossroads of Bea- court that the statement the district Maelin alone was not sufficient ver to that at the court found The state habeas findings. court’s overcome the state habeas trial, Maelin and petitioner’s both time Thus, finding of the district we affirm the experienced capable attorneys, Rainey were did not misunderstand the court that Beaver trial law and practice in the of criminal plea agreement. terms of the was based on docu- capital cases. This VII. representation of experience in the mented felonies, in- charged with serious defendants remaining claims of ineffective Beaver’s found that de- cluding murder. The court investiga- the assistance of counsel deal with 1196 witness, Dimitris, adequately investigated expert and wealth’s Dr. to tes-

fense counsel tify presented mitigating evidence. on direct examination as to Beaver’s despite dangerousness, future the fact that strategy that the trial Rainey testified Rainey Dimitris had informed a week before sentencing be to show Beaver trial that he could not offer evidence Bea- many problems in young man with a troubled Rainey ver’s favor. testified at the state Rainey testified upbringing. terms of his hearing expect habeas that he did not the they spoke well for what reports testimony helpful, of Dr. Dimitris to be but trying argue, and that he was con- were thought points he there were some brief ability prosecutor’s cerned about might be favorable to Beaver. testimony of and discredit cross-examine Rainey that it testified proposed witnesses. Rainey’s The record indicates direct gives fact opinion that “the trier of was his July examination of Dr. Dimitris on 1985 by credibility prepared document some to a brief, asking give Dr. an Dimitris to especially prepared a document party, third opinion expert as an as to Beaver’s future if by agency.” stated that a court dangerousness committing homicide. ... “comes out of court record information “my opinion Dr. can- Dimitris answered that accepted prose- it and [the and the court has point having not be to the medical raised objection any to it and hasn’t raised cutor] certainty, giving insights, so far in me but record, part at least we’ve made quote not the basis to with reason- point strategy, I it had a from a believe certainty.” questioning able medical On basis, going get stronger and we were question from as to the broader argument.” final conduct, the likelihood of future criminal Dr. replied impression Dimitris that it Rainey’s was his con The record reveals profited that Mr. had testimony of moth Beaver from his cerns about the Beaver’s experiences in family program. the Second Genesis er as as other members were well is, testimony attorneys think of Beaver’s We as his well-founded.10 The evidence hoped, helpful had past that Beaver claims should have come more to Beaver than court, family from harmful. members was before and the court found Beaver’s childhood We conclude that the to call decision family mitigating relationships to be factors. Dr. Dimitris awas reasonable tactical deci rely We conclude that the decision to on the presentation sion counsel to control the reports credibility of and documents from evidence to diminish the force and effect of parties disinterested rather than risk that testimony Dr. Dimitris’ and that this decision family or other Beaver’s father or mother reasonably was within the standard of effec testify might members be discredited or ad tive assistance of counsel.

versely to interests on cross-exami strategy nation was reasonable trial that was Beaver also claims ineffective assistance objective within of reasonable standard because counsel failed to inform Beaver’s Burger Kemp, 483 effective assistance. psychiatric expert, Reddy, Dr. of Beaver’s 3114, 3122-26, 776, 788-95, 97 U.S. alleged stepfather (Jimmy assault on his (1987); Thompson, L.Ed.2d Bunch Compher) and failed to “insure that ... [Dr. (4th Cir.1991), F.2d 1363-64 cert. de Reddy] independently in- corroborated the nied, U.S. Beaver,” formation he received from all of which, argument goes, Reddy caused Dr. attorneys credibility his to lose also asserts that on cross-examination. The they sup- ineffective because called the Common- record indicates Beaver’s counsel Further, Briefly, present while Beaver's mother was conflict with Beaver's claims. day sentencing hearing Sandy the first and testi- Beaver made no to see or communi- effort fied at the habeas that she would have cate son from the time Beaver was son, sentencing testified on when behalf of her she was arrested until after the when he made probation preparing Mecklenburg. interviewed officer one visit to see Beaver in presentence report, using drugs suggest she denied does not now what his father could have Beaver, giving drugs reports already which is in direct added to the before the court. sonality Inventory predicted had that Mr. reports and records Reddy with the plied Dr. juvenile explode. and his offenses Beaver would concerning Beaver’s Dr. Maryland prior to trial. convictions attorneys, at state habeas Beaver’s had examined the rec- Reddy that he stated hearing, sought help Dr. had of certain opinion was based on and that his ords Cornell, psychologist. a clinical Dr. Cornell by supplied as information as well records gone transcript over the of the sentenc- had cross-examination, However, Dr. Beaver. commenting ing hearing with a view toward Reddy that he was not aware testified lawyers, with on the effectiveness Beaver’s Jimmy Compher and robbery and assault on disagreed, as did with the con- whom he he might influence his this information Dimitris, Dr. with whom he also clusion of Beaver’s future violence opinion as to disagreed, Megargee for he testified that the get degree if Beaver did not treatment. some Invento- Typology, related to Minnesota sentencing testified at his Beaver ease, ry, applied to this would indicate when Compher in the he was not involved likely be to be a risk that Beaver would less attorneys that he He had told his incident. than other criminal defen- of violent behavior Compher incident. involved was not B, Type one of the dants because he was this evi- least violent felons.11 He testified counsel and argues that his Beaver dence was available to Mr. Beaver’s independently cor Reddy have Dr. should that Mr. Beaver’s counsel had not dis- himself information that Beaver roborated Remembering it. that the fault which cussed attorneys upon Dr. which gave to his lay lawyers now seeks to on his Beaver in his Reddy later admitted acted. Beaver significance recognize” of this “failure to his hearing that he had lied state habeas classification, Type B we next show that the duty attorneys. trial counsel have While and Dr. view of the record taken Beaver perjured known the court not quite misplaced. Cornell is authority that re testimony, we know of no to insure Beaver’s quired Beaver’s counsel are a papers, The Genesis Second Reddy to Dr. or themselves truthfulness part of the record and were introduced hold there engaged on his behalf. We while sentencing hearing at the the Commonwealth obligation are of no such Beaver, respect to show that: frivolous. this claim is Megargee profile His matches that of the attorneys Finally, claims that his offender, Typology Type B a somewhat evidence recognize “to and introduce failed in- infrequently type. incarcerated These demonstrating report psychiatric from a non-assertive, tend to be more dividuals likely persons to was one of the least convict- passive and constricted than most ” (italics .... are pose a threat of violence to deceive themselves ed felons and tend writer’s). argument is that such brief severity problems. of their about readily available was known and information lawyers obviously recognized the they completely to make but failed to them B, Type perhaps from this significance of it. effective use of ap- meaning of which is very language, the psychi fails to name which The brief anyone elementary knowl- parent to with an pages in the report atric and refers lawyers ready English. The edge of explain not otherwise appendix, and does Lee, a clini- of Dr. for the cross-examination conclusory claim. An examina nature of this who testified for the Com- psychologist, cal reveals that the claim is tion of the record sentencing hearing. Dr. at the monwealth foundation in fact. without Megargee did that the Scales Lee testified more Dimitris, Type people B tended to be psychiatrist, had testified show Dr. non-assertive, than sentencing passive and constricted for the Commonwealth He, however, testified Multiphasie most convicted felons. hearing that the Minnesota Per- Reddy, that information.” that Dr. have known 11. Dr. Cornell also testified Beaver, psychiatrist “would not who testified for 1198 post through retained the several entirely agree with the Me- and has

that he did that, they opinion, subsequent in elections. gargee Scales only prediction. gave a 40% year prior promotion, Rai- About a to his Indeed, closing lawyers in their ney accepted Gregory Beaver as a Warren following, the to which included argument fatally had been accused of client. Beaver reply could not because the Commonwealth during shooting Virginia trooper a state a agreement: plea stop accus- traffic on Interstate 95. Beaver’s got into a discussion of the Dr. Dimitris other than the Commonwealth of er was none facility and a secured difference between yet Rainey nothing wrong Virginia, saw with would receive treat- person one where a simultaneously. representing both clients prison setting. in being ment without Although majority placed impri- has its Lee, Also, reviewing Dr. the Minnesota upon arrangement, this I cannot lend matur report, agreed part with of it and disa- mine. it, part being greed part of where offender, B who be Type

he is I. report passive; and the non-assertive that he would part in one indicates itself with, begin majority misappre- To suggest out. I would strike out or lash Cuyler hends the test set forth in v. Sulli- no one has contradicted what since van, 1708, 100 446 U.S. S.Ct. 64 stated, Reddy that he is amenable Dr. has (1980), to determine whether a treatment; and there has been no valid attorney’s loyalties have defense divided de- dangerousness prediction as to his future prived the accused of his Sixth Amendment to commit crimes. propensity or to his right to counsel. The is not accused re- Thus, only that not did Beaver’s we see demonstrate, quired majority as lawyers recognize significance of the states, resulting “an actual conflict and a Megargee Inventory and Scales Minnesota performance,” adverse effect on [counsel’s] B, Type they finding ante, Rather, (emphasis supplied). at 1192 wit- cross-examined the Commonwealth’s he need “establish that an actual con- very subject argued on the ness adversely flict of interest affected his law- thus are of same. We yer’s performance.” Cuyler, 446 at U.S. foundation fact and contention is without at 1719. Once the conflict is estab- is merit for that reason. without lished, conclusively presumed counsel is have rendered ineffective assistance as a court is ac- judgment The of the district matter of law: cordingly States, 60, 76, Glasser [u United AFFIRMED. 467-68, (1942) 86 L.Ed. 680 ] multiple established unconstitutional HALL, Judge, dissenting: K.K. Circuit representation is never harmless error. At the of this case lies the relation- heart Once Court concluded Glasser’s lawyer ship Virginia and two of his between interest, lawyer had an actual conflict of Rainey clients. III first under- Thomas 0. indulge in refused “to nice calculations as represent took to the Commonwealth of Vir- prejudice” amount of attributable to ginia upon being part-time hired as a conflict. The demon- conflict itself prosecuting attorney County. in Dinwiddie “right a denial of strated to have the professional affiliation between effective assistance of counsel.” continued, has un- and the Commonwealth broken, day; Rainey appointed Cuyler, at to this U.S. County’s (emphasis supplied).1 prosecutor Dinwiddie chief Tatum, representation requires 943 F.2d 375- to account United.States v. him Cf. (4th Cir.1991): masters, to two an actual conflict exists when attorney An has an actual conflict when he it can be shown that he took action on behalf actively represents conflicting interests.... necessity of one. The effect of his action will attorney actively engaged legal When the single attorney Requiring permitting II. codefendants, represent often referred an actual conflict there was to whether As joint representation, per is not to as se case, majority simply recites the in this guarantees of ef- violative of constitutional that there conclusion court’s state habeas princi- This fective assistance of counsel. not, that appears to characterize and it recognizes multiple that in cases ple some fact,” to entitled a “historical conclusion as appropriately represent- can be defendants correctness accorded presumption of indeed, cases, attorney; by one some ed (West 2254(d) § 28 U.S.C.A. such joint advantages might certain accrue from 1994). Ante, rubber-stamp This at 1195. representation. plainly Cuyler, which contravenes approach a of whether that the ultimate issue states Arkansas, 475, 482, Holloway 435 98 v. U.S. particular case of interest exists conflict 1173, 1178, 55 L.Ed.2d 426 S.Ct. law and fact of “is a mixed determination different, wholly Beaver’s situation is application legal princi- requires the egregious. far more did not simulta- facts,” id. at 100 ples the historical to neously represent codefendants whose inter- therefore, not, that does at merely conflicting, potentially but 2254(d). 341, ests at Id. fall the ambit within simultaneously represented op- instead at 1714. definition, interests, by posing party, whose Glasser, remembered It must be were diametrical to those Beaver.2 The only progeny dealt Cuyler, and their Rainey’s representation nature of is the dual posed when a of interest potential conflict only fact” of take “historical which we need attempts represent to more lawyer defense note. in the same or related than one defendant the conflict proceedings. Because criminal legal principles Applying established potential is posed by such scenarios fact, I that a conflict that lone must conclude one, necessary to delve into it is often existed as a matter of law.3 of interest involving the code- myriad of historical facts Apparently, only authority that can be interests and counsel’s competing fendants’ Virgi- support proposition cited performance. actual monwealth, Rainey hardly any could take action adversely appropriate affect the defense that would not also be detri- beneficial to one other. omitted) point elementary (citation is so (emphasis supplied). mental to the other. The scarcely require explanation. as to Alabama, (5th 588 F.2d 2. See Zuck Underwood, Cir.) H. Part-Time Prosecu- (holding existed 3. See Richard that an actual conflict Survey A and Some appointed represent the tors and Interest: where the law firm Conflicts of (1992): virtually Ky. prose Proposals, 81 LJ. "In also the in a murder trial was defendant matters), opinions stating every personal there are ethics cuting attorney’s civil state denied, may part-time prosecutor not defend in crimi- rt. ce (1979): just prosecutor's own coun- cases—not in the nal anywhere In some ty else in his or her state. but interest occurs when a An actual conflict of prohibition into stat- has been enacted states attorney places himself in a situation defense (footnotes omitted). utory no stat- There is law.” loyalties.... inherently conducive to divided directly Virginia addresses law in ute or case attorney party owes duties to a If a defense but, according rules practice, to that state’s those of the are adverse to whose interests legal ethics: defendant, then an actual conflict exists. independence professional Maintaining and the defendant interests of the other client precludes required lawyer judgment of a sufficiently adverse if it is shown that are employment acceptance duty or continuation of attorney to take owes a to the defendant judgment adversely on behalf of will affect his detrimental to his some action that could be loyalty a client. or dilute his other client. omitted). Responsibility, Can- (citation By Virginia quotation si- Code marks Professional 5; (1996) (emphasis supplied). multaneously representing EC 5-14 Beaver and the Com- having of a representation does without ever had the assistance of dual nia’s condonation is, beyond lawyer loyalty question. Amendment unfortu whose the Sixth not violate Pey opinion Goodson nately, own our I dissent. (4th Cir.1965). ton, See discus F.2d 905 ante, sion view, wrongly decid- my Goodson

In Therein, fell victim to the same

ed.4 applica- regarding Glasser’s

analytical flaw majority apply- here that afflicts tion America, UNITED STATES of simply, Quite we failed note ing Cuyler. Plaintiff-Appellee, repre- difference between fundamental state, against the senting defendants several Anthony BARBER, D. Defendant- and the state a defendant representing Appellant. Hence, proceeded, simultaneously. as analyze today, scope majority does America, UNITED STATES of duties and to dis- prosecutorial of counsel’s Plaintiff-Appellee, searching possible performance, sect his Goodson, defendant. See prejudice to the at Because we found no 351 F.2d 908-09. HODGE, Jr., L. David Defendant- we found no conflict.5 prejudice, “actual” Appellant. puts reasoning impermissibly That line of 95-5238, Nos. 95-5250. adversary the horse. Our

the cart before system justice inevitably engenders con- Appeals, United States Court of parties dispute to a opposing are flict. The Fourth Circuit. conflict, is, therefore, immutably in and there 10, Argued May 1996. than conflict of interest when a no clearer represent 23, both sides. lawyer undertakes Aug. Decided 1996. repeatedly Supreme Court has told As the Granted; Rehearing Opinion En Banc established, us, preju- is once the conflict Vacated Oct. 1996. conclusively presumed. Though dice committing is accused of is a act that Beaver one, should not

particularly evil he be com- judgments final of

pelled to face that most holding, Regardless pains 4. the wisdom of its We Good- also took in Goodson to limit its course, would, prospective application: may subsequent panels “[W]e think it well bind son See, Inc., be that the workable rule of the future will Busby e.g., Supply, this court. v. Crown per years However, be later, se one...." Id. at 909. A few (4th Cir.1990). 840-41 896 F.2d appeals, holding another court of effectively I believe that Goodson was overruled appointment part-time magistrate of a Cuyler by Cuyler. The Court in reaffirmed and conflict, per did not amount to a se question dictate that the clarified Glosser's observed "[t]he Fourth Circuit has reached a paramount perfor- to that of actual conflict is similar result in Goodson ... under circum- Cuyler, at mance. See 446 U.S. 100 S.Ct. at considerably disturbing stances more than we here (counsel’s representation active of conflict- join consider .... [We] [its] caution that the ing predi- interests establishes the constitutional Baker, practice persist.” should not Jones v. assistance). Cuyler cate for a claim of ineffective (10th Cir.1969) (emphasis sup- F.2d sapped any vitality may thus Goodson of once plied). have had. discussion, preceding along It follows from the 4, supra, with that in note that I would not hold relatively simple charge character of the 5. The Beaver's be conflict-of-interest claim to barred (escape) appears to also have influenced Goodson Lane, Teaguev. our in that case. Id. at 909-10. The ante, decision L.Ed.2d 334 Likewise, See at 1193-94 n. 8. is, capital charge against murder obvi- even if the conflict in this case one, complex bely- ously, waived, a far more serious and capable being were one I would not ing majority's [here] assertion that "the facts acquiescence Rainey's hold Beaver's mere indistinguishable representation are from those in Goodson. to have been an waiver. effective Ante, ante, ...” at See 1193. n. 7.

Case Details

Case Name: Gregory Warren Beaver v. Charles E. Thompson, Warden

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 22, 1996

Citation: 93 F.3d 1186

Docket Number: 95-4003

Court Abbreviation: 4th Cir.