*2 tence of years handgun charge. WILKINSON, Chief Judge. There is no question that Rubin shot and Joyce Lisa Maryland prisoner, *3 husband, killed her Timothy Warner. claims she was the denied effective assis- However, Rubin, only the defense witness tance of counsel and seeks federal habeas trial, called at she acting claimed was corpus relief. The district granted self-defense. writ of habeas corpus, concluding that the A series of ultimately events led to the state court’s decision not to grant Rubin a homicide. During her marriage to War- new trial was an objectively unreasonable ner, Rubin had an affair with William Glis- application of established federal son. Rubin and Warner ended up bring- law regarding right to conflict-free ing a civil suit against Glisson because representation. Cuyler Sullivan, Glisson assaulted during Rubin the affair. 335, 1708, U.S. 100 S.Ct. 64 L.Ed.2d In the trial, course of the civil Glisson was (1980). Because two of Rubin’s attor- poisoned when he drank out of a soda neys labored under a conflict of interest bottle containing cyanide. that adversely affected represen- After the civil proceeding against Glis- tation, and because Rubin was denied the son, Rubin and separated. Warner Rubin assistance of counsel lawyers’ these cor- subsequently hired private investigators, ruption of attorney-client the relationship Robert Miller and Leopold, Robert to de- from night the of Rubin’s crime until the termine whether Warner having was an trial, conclusion Rubin’s we affirm the 1990, affair. In April Rubin told Miller judgment of the district court. that Warner confessed to her that he had The case involved attorneys two who in poisoned Glisson. Rubin claimed she was the aftermath of a crime schooled their afraid of Warner and wanted to tell the client in the tactics of in order to evasion police what she knew attempt about the guarantee their fee. own Then to avoid Glisson’s life. Miller referred Rubin to criminal indictment keep and their conduct Darrel Longest, an attorney, so Long- from coming to light, attorneys the took est could arrange for Rubin to meet with part cover as of the defense team. While police. April On Long- after prosecution harped at trial on Rubin’s est secured immunity Rubin, Rubin actions immediately following crime, met police with a officer to attorneys could not be called as fact tell him Warner’s confession. about witnesses and role in directing their later, Four days on April 24,1990, Rubin Rubin’s actions explained. was never To met at a Warner veterinary clinic to have say this had an impact adverse on her trial dog put their sleep. to During a walk with is say self-evident. To the actions here Warner in the clinic, woods behind the tarnished the calling noble of criminal de- Rubin told Warner that she had gone to fense is an work understatement. the authorities about his Ac- confession. Rubin, cording to Warner enraged
I. pulled out what she believed to be a gun. Rubin then took a handgun out On November Joyce Lisa her purse and shot eight Warner times. Rubin was convicted of degree first mur- der handgun use of a in a crime of After shooting, proceeded Rubin She violence. was sentenced to life in back into veterinary clinic and called prison, with all years but 30 suspended, on Miller in attempt to reach her attorney, into brought Goldstein, Joseph were instructions, Miller’s Following Longest. ' continued and Gavin the case. in- private other him and met Rubin though even from collect a fee location. a neutral Leopold, vestigator, trial. during her table at counsel sit did not then returned them The three called Miller crime. scene Rubin went for the fact that Except Gavin, who David partner, law his regarding facts none hospital, At that scene. the crime came both homicide were following the the events had taken time, clear it became exami- Rubin’s direct during brought out Mil- told So lot of medication. were And nation. hospital her to *4 to take Leopold and roles direct- ler about their testify called to However, overdose. drug after- possible for a in the immediate ing Rubin’s actions an further. step However, one the State shooting. went Longest math of the evade detec- twenty- Rubin to have the effort from apparent out events brought the and Leo- during Miller tion, instructed Longest following the homicide four hours hospi- any to the cross-examination, admitted without Rubin pold to have Rubin’s attorney’s The activities. name. and Longest a false Gavin’s under of tal mention meticulously executed. Rubin’s facts to refute were used the The instructions State that she by arguing claim self-defense Long- hospital, in the Rubin was While crime, her lied about of the the scene fled was that Warner police est notified of consciousness and showed identity, However, disclosed he never dead. guilt. With identity or whereabouts. Rubin’s conviction, Maryland Following her Longest large, still Rubin and certiorari granted Appeals in order to of Court her actions to direct able were v. Rubin conviction. compensation. Rubin’s ample affirmed themselves ensure (1992). 602 A.2d State, Md. attorney Gavin shooting, day after the The peti- filed a Rubin September she could bank so On to the Rubin drove in the relief Circuit $105,000 post-conviction to cover tion for of the sum withdraw Following County. Montgomery and for fee ex- Court retainer and Gavin’s Longest post-conviction hearing, the Longest evidentiary Meanwhile, attorney penses. newa petition Rubin’s granted in the case. court evidence possession took between of trial, interest purse, finding conflict jacket, took Rubin’s Longest and attorneys defense bullets, a .38 caliber and and Rubin caliber some .22 Amend- Sixth Rubin’s offices. that violated his law them at Gavin kept and handgun right to counsel. attorneys discover- ment after Finally only— out for a warrant ed Maryland, of by the State appeal On Rubin turned Longest and Gavin in an Appeals arrest — reversed Special of Court 25th. April p.m. on police at 7:00 in to the Special of Court The decision. unreported post-conviction dispute did not Appeals to advise continued and Gavin findings regarding factual They recom- court’s the homicide. after Rubin the homicide. after actions as her serve should Rubin who mended and found that And her to hire persuaded They trial counsel. Mrs. behalf counsel on as “served in Gavin brought Helfand, in turn who Barry trial. throughout her up Rubin” Joseph. And Fred Alan Goldstein after court found However, the state post-shooting considering the remarkably, homicide, Longest following the part events events, Gavin remained Longest and defense Helfand, Gavin’s contribution even after team defense most accurately vestigative team of what is role” on defense team “consisted ‘paralegal/investigative’ described as work was an determination of unreasonable ... that had nothing and ‘client relations’ light presented facts in of the evidence Therefore, strategy.” to do with court, the state another constituting basis Appeals held that Special Court of because for granting relief. habeas The Rubin not control Longest and did court noted that the included a evidence decision of whether to offer their testimo- detailed letter from and Gavin to trial, the, ny at and because it awas reasonable Maryland Attorney Com- Grievance decision Rubin’s trial to call counsel not explaining mission “Longest Gav- them, Longest and Gavin’s “failure or re- in served in a ways ‘multitude of ” testify fusal” did not constitute ineffec- ... during even the trial.’ Id. at Maryland tive assistance counsel. 869-70. The district court concluded Appeals applica- Court of denied Rubin’s the state court’s “minimization of counsel’s State, tion for certiorari. See Rubin convincingly role was unrea- (1998). Md. A.2d 1262 fight sonable Id. at evidence.” remedies, Having exhausted her state Maryland appeals. now *5 petition Rubin a corpus filed for habeas 7, in February
relief
the district court. On
II.
2001, the district court granted Rubin’s
petition, finding
Maryland
that the
Court
A.
Appeals
of Special
unreasonably applied
n Rubin
petition
a
filed
for writ of
clearly
Supreme
the
established
Court
corpus
habeas
after the
date
effective
of
precedent
Sullivan,
Cuyler
of
v.
446 U.S.
the Antiterrorism and Effective Death
(1980).
335,
1708,
100 S.Ct.
was state unreasonable court to of the United States.” 28 U.S.C. deeply conclude that “counsel as conflicted 2254(d)(1).1 § as Longest and Gavin could were remain (cid:127) Rubin, active in [her] case.” 128 Supreme The Court addressed the F.Supp.2d at 869. 2254(d)(1) meaning §of in Williams v. Alternatively, 362, Taylor, 1495, court district conclud- 529 U.S. 120 S.Ct. 146 (2000). finding ed that state court’s L.Ed.2d Long- explained 389 The Court est piayed only “paralegal/in- ways several in which a court deci- state 2254, § 1. corpus granting Pursuant writ of habeas habeas relief to See Rubin. may granted also be if the state court's 128 at deci- 869-70. we Because con- based sion "was on an unreasonable determi- elude that the state court's decision was an light application nation of facts in of the evidence unreasonable law of federal under presented 2254(d)(1), proceeding.” § the State 28 this inquiry. ends our There court is 2254(d)(2). § XJ.S.C. court no district relied need to call the state court's factual find- provision ings question. as an alternative basis for into
401
686,
2052,
ton,
668,
104 S.Ct.
80
466 U.S.
or an “un-reason
“contrary to”
can be
sion
(internal
(1984)
quotations'
674
L.Ed.2d
fed
clearly established
of’
application
able
omitted). Further,
it is
estabhshed
Williams,
at 405-
529 U.S.
law.
eral
in
to effective assistance
right
Only one
1495.
07, 120 S.Ct.
free
right
cludes the
in this
is relevant
explanations
Court’s
Sullivan, 446
of interest.
from conflicts
an unrea
is
court decision
A state
case:
1708;
348-50, 100
see also
S.Ct.
U.S.
clearly estabhshed
of
apphcation
sonable
261, 271, 101
Georgia,
U.S.
Wood
identifies the
law “if the state
federal
(1981);
1097,
L.Ed.2d 220
Hollo
S.Ct.
from
legal
[the]
rule
governing
correct
Arkansas,
way v.
435 U.S.
it
unreasonably apphes
but
cases
Court’s
(1978);
Glasser
S.Ct.
L.Ed.2d
prison
particular facts of the
to the
States,
60, 70, 76, 62
315 U.S.
v. United
1495.
120 S.Ct.
Id. at
case.”
er’s
(1942).
Lawyers
B. performance, adversely affected counsel’s and the defen presumed will be prejudice federal clearly It is estabhshed . a reasonable not demonstrate “right to dant need Amendment Sixth law con that, attorney’s but for probability effective assis right to the is counsel interest, outcome would of trial’s Washing- flict counsel.” Strickland of tance 402 Sullivan,
have different. 446 at “objectively been U.S. This was an unreason 349-50, 1708; Mickens, see application clearly 100 S.Ct. also of able” established fed Glasser, 1244-45; at S.Ct. 315 U.S. at eral law plain because presumption 457. This ly S.Ct. of had a conflict adversely interest prejudice “it arises because is difficult to performance affected their own and the precise measure the effect on the performance defense” of Rubin’s trial counsel. Therefore, representation “corrupted by Sullivan, when is con- under was de Strickland, flicting interests.” U.S. nied the effective assistance of counsel 2052; Holloway, Longest S.Ct. see also and Gavin’s actual in conflict of 435 U.S. at Indeed, S.Ct. 1173. terest. statutory When terms of art fail lawyers’ adversely fully conflicts interest af- capture the appalling nature of the performance, fect ques- their it calls into attorneys’ misconduct here and the effect reliability tion the proceeding and it had on subsequent Rubin’s trial. What represents a breakdown in the transpired requires adversarial us to take the rare and process system jus- fundamental to our extraordinary step of granting Rubin the tice. writ of corpus habeas rigorous under the §
standards of 2254.
III. A. case, Maryland Court of Special Appeals Cuyler identified v. Sulli personal interests van as the established federal law fundamentally conflicted objec- with the Rubin’s claim of ineffective as tives of from the governing sistance of counsel to a due conflict of moment arrived the scene of the interest. The recognized state court also crime until completion of her trial. that a conflict of interest can exist post-conviction between The state court made nu- a client and attorneys’ own personal factual findings merous regarding Longest pretrial interests and that both *7 and trial and Gavin’s night actions on the representation See, can be ineffective. gave homicide that rise to their conflict of e.g., United Magini, And, States 973 F.2d interest. as the district court cor- v. (4th Cir.1992); 263-64 rectly United States emphasized, Special the Court of Tatum, (4th 943 F.2d Appeals Cir. “left wholly intact” findings these 1991).2 court, However, the post-conviction Rubin, did not con of the court. clude that Longest and fact, Gavin’s actions fol F.Supp.2d at 865. In the state court lowing the homicide created an actual con did not focus on dispute or the fact that flict of deprived interest Rubin of and Gavin had a conflict of inter- effective assistance. And the court did not est. nothing And in the suggests record consider the continuing effects of Longest that Rubin waived or even understood and Gavin’s conflict when evaluating the conflict of interest that and Gav- effectiveness of Rubin’s trial representa in’s had created. tion. Rubin, F.Supp.2d at 866-67. Supreme While the expressed has presented Court conflict as severe as the one here. Therefore, doubt applies about whether Sullivan to ev- we conclude that the state court ' interest, ery potential Mickens, conflict of correctly see utilized the Sullivan framework 122 S.Ct. at the Court analyzing has never in- when Rubin’s ineffective assistance dicated that apply Sullivan would not to a of counsel claim. Appeals F.Supp.2d at attorneys’ found that 865-66. Her Special pre The Court crime, trial conduct created problems at the scene of the serious arriving after lawyers Rubin at trial. in Leopold to take had “Longest told Miller precise structed her to take the actions hospital possible drug for a to a [Rubin] subsequently prose that were used a and have her admitted under’ overdose cution at trial premedita to establish her private investigators The false name.” tion and guilt. consciousness of For ex Longest’s instructions. carefully followed ample, prosecutor seized on Rubin’s and Miller and left the crime scene during conduct closing argument, saying, Leopold registered her under the alias of inter alia: “Does she flee from this scene? Then, hospital. Peterson” at the “Sharon - You bet. Does she he? You bet.” police notified the that Warner “Longest at 852. dead, not disclose [Rubin’s]
was but did notify police identity” and did even strong Rubin thus had a interest in hav- represented that he and Gavin Rubin. ing Longest help jury and Gavin un- derstand that she acted on the advice of addition, Longest and removed Gavin lawyers following her own the homicide. crime scene. evidence from the -The very attorneys supposed who were “Longest possession” court found that took in representative capacity function a had “jacket, property, including her of Rubin’s critical regarding become fact witnesses .22 bullets and a .38 caliber purse, caliber the crime scene and Rubin’s conduct. handgun.” Longest Smith Wesson Testimony attorneys from either of the kept these items at their own might helped explain have day following law offices. On jury. to the behavior homicide, Longest and failed to Instead, police. con- present however, Rubin to Testimony, apparently solely gain, financial cerned with their own thing Longest last and Gavin had mind. drove to her bank to with- They powerful [Rubin] “Gavin conflicting interest $105,000 [Longest as draw to be used and shielding testifying themselves from and to Gavin’s] fee cover [their] retainer following 'conceal their role the events expenses.” Finally, only they after discov- the homicide. and Gavin did ered that a warrant was out for Rubin’s not-r-indeed could not—fulfill their obli- arrest, Longest and Gavin turned Rubin in gations vigorously protect their client’s police twenty-four af- almost hours interests. ter had arrived the scene of the post-conviction The state court made un- crime. disputed findings *8 hardly Longest exposed potential It actions had them to disputed can be charges justice a criminal for of and conduct created conflict of obstruction Gavin’s a crimi- .lawyers .utterly hindering apprehension failed to and the of interest. Rubin’s Instead, fact, Longest nal In and Gavin function as .Rubin’s advocates. defendant. Rubin, Miller, Leopold subject grand jury investiga- of a they schooled and were the trial and began action and functioned almost as tion that before Rubin’s evasive complete. until after it was lawyers’ accessories after the fact. The continued $105,000 attor- Longest engage to a retainer fee even had to his own desire secure represent investigation. him in this ney “caused them to counsel Rubin to act an Rubin, F.Supp.2d at 865 unnecessarily suspicious they fashion when delay (recounting Longest’s post-conviction testi- caused her to her surrender to the Rubin, testimony regard- mony attorney’s and his police for hours.” decision, investigation of ing Longest the criminal its the state court found that Gavin). Furthermore, Longest Longest and and Gavin did not control Rubin’s targets inquiry of an strategy Gavin were also and held “as matter of law Attorney that, by Maryland Grievance Com- prevented unless counsel could have during they justify had to happening mission which of [allegedly] deficient $150,000 they eventually act, fee collected or she cannot have rendered inef- he representing for Rubin. See id. at 856-58 fective assistance.” The court concluded (recounting details from the post-convic- Longest because and Gavin did not hearing involving Longest tion right testifying, have the to insist on “their grievance justify- letter to the commission failure or refusal do so did not consti- fee). ing Special Ap- their The Court of tute ineffective assistance of counsel.” And, in peals dispute did not these facts. objectively This an ap- was unreasonable brief, reply acknowledged its the State plication of Sullivan Longest because investigations Longest and Gavin and adversely Gavin’s conflict of interest af- Longest conceded that and Gavin’s activi- representation fected Rubin’s in at least night ties on the homicide and ways. two .the day fraught next “were with both ethical times,
and criminal overtones.” At all 1. attorneys’ fidelity to their own interests First, Longest superseded any repre- and Gavin’s direct obligation they sense of sentation of may adversely affected have to their client. was
by their conflict of interest. While state court found that and Gavin B. responsible “were not for deciding upon or disputing Instead of carrying out Mrs. Rubin’s trial strate- interest, had a conflict of the Court gy,” it also found that and Gavin Special Appeals any concluded that con continued to serve “as counsel on behalf of flict and Gavin had did not ad Mrs. night Rubin” from the of the homi- versely affect Rubin’s be cide until the They end of her trial. par- cause and Gavin advised Rubin to ticipated on her defense team. In the independent retain three attorneys rep letter Maryland sent to the Attorney resent her at trial. In order to show Commission, Longest Grievance attorney’s adverse effect from an conflict they spent indicated that “by far” the most interest, the defendant must establish time with Rubin the events leading up by preponderance of the evidence that a to her trial. plausible strategy alternative defense ex And at the end of day, Longest n isted “that defense counsel might [her] $150,000 Gavin collected repre- for their pursued,” have that this “alternative strat Helfand, sentation of Rubin while Gold- egy or tactic objectively reasonable stein, Joseph only $100,000. collected under the facts of the case known Id. at 866. attorney at the time of attorney’s tacti *9 decision,” cal and that “the defense coun partic- and Gavin’s continued pursue sel’s failure to strategy ipation case, that or on Rubin’s even after Hel- fand, Goldstein, tactic was linked to the actual conflict.” Joseph and brought were (4th Taylor, counsel, Mickens v. 240 F.3d in to serve as trial allowed them — Cir.2001) (en banc), aff'd, -, wrap U.S. to in attorney-client themselves the 1237, 152 122 S.Ct. L.Ed.2d privilege 291. and assure that would not actions, on their spotlight draw the own The defense testify at trial. to asked be (to in reasons remain as their whether for financial to the stand Rubin team called fee) out gain the role the case and a substantial or witness, mentioned' never but sole liability, criminal directing in her be- of fear for their own' attorneys played in lapsed duty This “virtu- their of [Longest Gavin] the homicide. and following havior testimony Rubin, any representation.” access to at off ally sealed their regarding [Longest Gavin]” and 869. from Rubin, It F.Supp.2d at 866.
role. to cross-examine prosecution the allowed 2. And the State her conduct. Rubin about Second, Longest and Gavin’s con pre- facts to establish Rubin’s used those ultimately tainted and ad flict of interest guilt. of her consciousness and meditation representation by versely affected Rubin’s were only issues at Rubin’s trial The attorneys. Longest and her three trial deliberation, premeditation principles the of Gavin violated most basic the homicide. committed whether Rubin attorney-client compact from be instructed Longest and Gavin The actions representa ginning to the end of Rubin’s shooting “look made the to take Rubin from their conflict of in tion. The taint deliber- more pre-meditated more simply by could not be cleansed terest Yet F.Supp.2d at 869. ate.” independent counsel to make bringing “re- and Gavin never considered Longest and while Gavin trial decisions alto- the case themselves from mov[ing] function as of continued to members they might wit- that become gether so Special Ap defense team. The Court They never on her behalf. nesses attorneys conflict that as peals’ conclusion draw the State’s attention thought Longest and Gavin could somehow ed as handling regarding actions their own long case as as remain active Rubin’s or the crime scene at of evidence' strategy control trial they did not delay in sur- 24 hour Rubin’s causing the n objectively application unreasonable Id. render.” Sullivan standard. Supreme Court has observed question do not call into effects We has detrimental conflict of interest finding it court’s factual of what representation “because call to not lawyers the decision doing.” made attorney prevent from tends to Gavin as witnesses. Howev- 98 S.Ct. Holloway, 435 U.S. effectively er, decision was the alternative can be shown An adverse effect 1173. discharge Long- To unavailable them. actions attorney’s “failure take from an defense team and from the cir- est and Gavin clearly suggested from the that are Goldstein, Helfand, witnesses, Tatum, as call them 943 F.2d cumstances.” have had to oust fellow Joseph Here, would suggested circumstances the ones had.been bar who by Longest members helped been might have first in the their services to recommend testifying. Rubin has shown hardly consider could place. They dé- plausible alternative this was a as Longest and Gavin calling benefits under strategy which was reasonable fense while failure to fact witnesses and that of the case facts attorneys. functioning as Rubin’s still strategy was linked to pursue .were represen- adversely affected This agree of interest. We conflict tation. “[b]y failing to court that the district with *10 Sullivan, Tatum, Id. at 378. Just as court, in applying previ- has trial
This Rubin’s attorney ously held that a conflicted can performance counsel’s was tainted and render trial coun- taint trial counsel fact that and Gavin continued to ineffective. In Tatum— performance sel’s participate as members of the defense amazingly very a case that involved team. conduct is at
same David Gavin whose
n
in
issue
this case—this court concluded
C.
independent
in
trial
bringing
counsel
The
adverse effect
and Gavin’s
necessarily
a serious con-
does not
cleanse
conflict
rep-
of interest had on their own
attorney
if the conflicted
of interest
flict
resentation of Rubin and the taint
continues as a member of the defense
conflict had on Rubin’s trial counsel es-
Tatum,
team.
tance of counsel because did Gavin than Rubin was more ineffective—it was Id. represent Tatum at trial. perversion 377-78. of the attorney-client relation- rejected This court that argument, finding ship. Longest and Gavin’s conflict of inter- that it would never occur to Tatum’s trial est so corrup- severe that it led to a counsel to call as a Gavin witness with tion of the process adversarial that our continuing as system produce just serve co-counsel. relies on to results. Even though Gavin and Tatum’s trial coun- It imagine is hard to a case that call would sel made contributions Tatum’s defense the fundamental fairness of a trial into that “varied in degree,” question function and than hap- more this one. What “joint two, effort pened when one was so here happen should never in our completely disqualified, system. caused an unwit- Rubin is entitled to a new ting, disqualifying^ but taint to representation. the other.” with conflict-free course, keeping requirements 3. Of purely with the Sullivan. The use of Tatum is illustra- (cid:127) Jarvis, of Bell v. 236 F.3d at the case on tive. Cuyler plainly which this court has relied is *11 interests, they certainly than their client’s
IV. all govern codes that violated the ethical reasons, affirm we foregoing For the they may have committed lawyers, and grant the district judgment of join majority’s repro- I in the crimes. cor- for writ habeas petition Indeed, were I of their bation conduct. by the terms ordered the same pus on to determine when my left to own devices court. district yields constitutionally a conflict of interest AFFIRMED. counsel, might I assistance of ineffective conclusion that the existence endorse the MOTZ, Circuit DIANA GRIBBON contact between the con- of case-related dissenting: Judge, lawyers tainted flicted and the unconflicted of habeas a writ Today grants this court free to do that. But we are not latter. who, it con- Joyce Lisa corpus to law, 'Instead, controlling apply we must her and killed cedes, “shot unquestionably of re- including the deferential standard Maryland jury con- husband,” and whom and Effective in the Antiterrorism view The court murder. first-degree victed (AEDPA), Penalty Act of 1996 Death (an honors to Rubin relief grants habeas 2254(d)(1) (West Supp.2001), § U.S.C.A. she theory that on the college graduate) deny relief requires us to habeas which of counsel ineffective assistance received is find a court’s decision unless we prior to Yet for six months at trial. to, “contrary or involved an unreasonable lawyers special- trial, a team of three of, Federal clearly established application her defense planned izing in criminal law Supreme law, determined as this team strategy; and formulated case, I cannot so find. In this Court.” trial, examining wit- represented Rubin at dissent (cid:127)Accordingly, respectfully I must asserting nesses, objections, and making contrary holding. majority’s from the The ma- behalf. arguments on her legal or ethics of jority does fault the skill I. the state court lawyers, three these whom experi- “highly qualified described as case cited as Supreme Court The sole Rather, counsel.” criminal defense enced au- Federal law” clearly established “the because relief majority grants habeas Cuyler v. here is thorizing habeas relief interest of two other attor- a conflict of Sullivan, 446 U.S. S.Ct. the hours neys, who advised Rubin (1980). ante See L.Ed.2d killed her hus- immediately she days after dealt with a conflict That case 406 n. 3. conflicted law- Although the two band. involving dual interest —the Rubin, they with to meet yers continued three co- attorneys represented same two case, strategy, direct trial try her did not interests, defendants, conflicting with table, ap- or even enter at counsel sit Id. at 337- trials. separate criminal three trial court. pearance on her behalf Sullivan provides no direct 345-49. estab- has never Supreme Court finding of unconstitutional support for a alone established —that lished—let very different of interest on the conflict violates the of interest Sixth a conflict Indeed, extent to the issue here. facts at circumstances. under these Amendment to this any specific relevance Sullivan has exists here. case, no conflict suggests it conflicted say the two This is not to precedent, circuit Darryl Long- n. 5. Under lawyers infra —David rele- Sullivan does however, establish not. Driv- They did properly. est—acted in- conflict of assessing rather vant standard interests by their own financial en *12 408 (4th Cir.2001) (en banc) (citation omitted), one at issue here.
terest claims like the
—
Tatum,
-,
1237,
370,
aff'd,
122
v.
948 F.2d
U.S.
S.Ct.
152
See United States
);
(2002).
(4th
majority utterly
L.Ed.2d 291
but see
375-76
Beets
Cir.1991
1272-(5th
(en
Scott,
Cir.1995)
1258,
proffered
fails to demonstrate that the
al
65 F.3d
banc)
strategy calling Long
ternative defense
(holding that the standard set forth
—
668,
testify
“objectively
est and
to
Washington,
466
Strickland v.
U.S.
—was
(1984),
“pursue[d]”
or not
would not
“objectively
have been
-reason-
post-conviction
Id.
able.”
At.
A.
hearing,
surviving
Rubin’s two
trial law-
First,
majority
“Long-
contends that
(one
yers
had
post-convic-
died before the
est and
direct
Gavin’s
occurred)
proceeding
tion
recounted their
adversely
Rubin was
affected
their con-
struggles to
a
theory
formulate
defense
added).
(emphasis
flict of interest.”
Id.
shifting
around
incomplete
ac-
Specifically,
majority agrees
with the
night
count of the
shot
she
her husband.
district
and Gavin They explained,
length,
multiple
at
have
should
testified
Rubin’s trial to problems
introducing testimony by
with
spotlight
“draw the
on their own actions.”
Gavin,
Longest and
as well as the incom-
Gee,
Rubin v.
869 patibility
testimony
between such
(D.Md.2001).
strategy.
explanation
their trial
Their
es-
beyond
calling Long-
tablishes
doubt that
effect,”
To demonstrate “adverse
howev-
Gavin,
est
though superficially plausi-
er,
only “identify
a defendant must not
a
ble, was not an “objectively reasonable”
plausible
strategy
alternative defense
his
strategy
“clearly
suggested by
might
defense
pursued,”
counsel
have
but
(citation omitted).
the circumstances.” Id.
(i)
also must:
show that this strategy was
reasonable,”
“objectively
i.e.,
First,
“clearly sug-
testimony
from
and Gav-
gested by
circumstances,”
in,
“under the
great
who knew a
deal about Rubin’s
facts of the case known to
attorney
activities and
killing
statements after the
times,
attorney’s
the time of the
tactical
opened
deci-
and at other
would have
(ii)
sion,” and
a link
establish
between the
to much damaging
door
evidence. After
pursue
husband,
conflict and the failure to
the strat- Rubin shot her
she first
tele-
egy-.
Taylor,
Miller,
Mickens v.
phoned
240 F.3d
private
Robert
detective
addition,
portion
a substantial
“personal
relation
she
with whom
emerged,
activities has never
be-
dinners,
night’s
assis
night
including late
ship”
successfully
did
assert
cause Rubin
home,
personal
a new
finding
tance
respect
and Gav-
privilege with
State, 325 Md.
Rubin v.
confidences.
in,
communications
respect
and with
*13
(1992);
Rubin v.
679
A.2d
602
Leopold
Longest and
Miller and
after
with
closing
Gee,
(quoting
at 852
shooting.
at the scene of the
Gavin arrived
arrived at the scene
Miller
argument).
damaging
other
cannot know what
We
assistant,
detec
private
another
his
with
observations,
after the
or
made
statements
the
Leopold, viewed
Robert
named
tive
(and
arose, Longest and Gavin
privilege
Not until
Longest.
body,
telephoned
and
intimate)
Miller,
would have had
did
arrival
after the detectives’
an hour
relate,
privi-
if
had
the
Rubin
waived
at the scene.
arrive
Longest and Gavin
sacrificing
lege.
do know
without
We
testified, the
had
Longest and Gavin
court,2
If
by
privilege as defined
the
the
right
after
have heard
jury
harming Longest
would
or Gavin’s
or otherwise
husband, re-
her
repeatedly
slightest,
shot
the defense could
Rubin
interests in the
(and
private
into his
detective
loaded,
five additional bullets
have called Rubin’s
fired
friend), Miller,
down,
to describe his several
good
and reloaded
lay face
as he
back
conversations with
lengthy one-on-one
frenzy
of ter-
a
supposedly
again—all
Longest and
at the scene before
Rubin
mind
developed
presence
the
ror —she
Petition,
Answer to
Gavin arrived. See
vicinity for an extended
stay in the
If
Ex. 4 at
the
Ex.
private
length
with
period to consult
testimony about
such
defense
believed
jury
would
lawyers.
detectives
af-
or conversation soon
Rubin’s behavior
including the three
heard details
have
her,
have assisted
killing
the
would
ter
without
spent at the scene
hours Rubin
witness,
Miller,
friendly
obviously
an
fodder,
this
calling an ambulance. With
testify. Yet the de-
certainly available to
extensively
have
elab-
prosecutor could
the
door, in a
open that
chose not to
fense
point
on the
on his brief comments
orated
could,
does, or
attrib-
decision that no one
called was not
person
first
Rubin
that the
protect Longest
to a desire to
ute
Miller, her intimate.1
lawyer but Robert
Gavin.
much even from the
this
We can ascertain
Longest and
information that
minimal
sure,
good
prosecution made
To be
the
Rubin
to date. See
have -disclosed
ac-
pieces
in Rubin’s
missing
use of
682-84;
State,
Answer
count,
602 A.2d at
had left the
v.
out that she
pointing
2 at 96 et
Corpus, Ex.
checked
shooting
Petition for Habeas
and had
of the
scene
post-conviction
under a false
(containing
hospital
the scant
seq.
herself into
had testi-
concerning
name;
if
testimony by Longest
heard
probably have
jury
and no
would
night
killing
of the
fied
events of the
to leave and use
Gavin).
they told Rubin
testimony by
objections,
the trial court
fully
2. Over defense
resolved
courts never
1. The state
arose
attorney-client privilege
ruled that
gave Longest or Miller
question whether
detectives, Miller
private
when Rubin's
not
checking. Rubin
use an alias in
instruction to
scene, but
crime
Leopold, arrived at-the
Miller,
hospital. Direction
into
later,
attorneys, Longest and
only
when her
lawyer,
see
who was not
Rubin's intimate
State,
Gavin,
A.2d
See Rubin
arrived.
State,
would obvi
A.2d at
Rubin v.
affirming
rul-
(describing
at 683-84
her benefit.
ously
have resonated to
ing).
supra
explanations,
n. 1. But the same
Trial counsel’s lucid
abas. But see
both
strategy they
the trial
followed and of
missing pieces in
prosecutor who used the
danger
strategy
she
story
advantage
to the State’s
suggests, clearly
why testimony
now
show
hay
made
out of
certainly
could
have
by Longest
“objec-
and Gavin was not an
more
account
Longest and
detailed
Gavin’s
tively
strategy
alternative
reasonable”
amplified by
whatev
Rubin’s behavior—
“clearly suggest-
the circumstances at trial
privilege
facts a waiver of
er additional
Mickens,
sum,
ed.”
would
was made
the three
heavily
precedent,
relies on our
United
Gee,
standing attorneys,” Rubin v.
128
Tatum,
States v.
contributions
degree.”).
First,
the nature of
dramatically
work
differed from
certainly prefer
ap-
I
our
Although
Tatum
lawyers
in
of the conflicted
Supreme
proach,
light of the
Court’s
Triana)
(and
for their clients. The taint
impossible
it
point,
silence on the
is
we considered in Tatum —from a conflict-
established,”
“clearly
conclude that it was
trial,
lawyer
appeared
“helping”
ed
who
Supreme
Court
law,
as matter
trial
“throughout
presentation
counsel
rule must be followed. See our
“bring
up
for this trial” to
[trial counsel]
2254(d)(1);
Taylor,
Williams v.
§
U.S.C.A.
speed”
simply
implicated
not
—is
362, 412,
U.S.
S.Ct.
Tatum,
378;
see
Rubin’s case.
943 F.2d at
(2000). Indeed,
L.Ed.2d 389
the circuit
Sullivan,
also
COrH Court, ap- would erode balance both never Triana, and Gavin the AEEi- our Constitution and federalist appear- noted their trial or even peared at protect. PA are meant of their on behalf in the trial court ances client. sum, circuit given split the relevant a obviously support facts that more lawyer conflicted Second, also unlike the is, in assistance —that finding of ineffective Tatum, recommended allegedly in who lawyer ap- the conflicted cases where crime, Longest charged of the commission the facts peared at trial where con- only advice gave relevant after lawyer’s role were more di- cerning the Tar had been committed. the crime Cf cannot conclude that rectly exculpatory —I turn, (noting that F.2d at 374 appellate post-conviction the state recommended attorney allegedly conflicted law unreasonably applied Court Supreme fraud). bankruptcy question, act in declining rule that Gav- in advice, lawyer unlike that of the Such effectiveness of Rubin’s trial tainted the Tatum, directly illuminate does not Indeed, scrupulous adherence to team. of the act. at the time intent Mickens, (emphasiz- 122 S.Ct. 1245-46 shooting her broadly, Rubin’s More act— representa- actual importance ing finan- from the greatly husband —differs conflicting pre- interests for the tion of Tatum, in which addressed in cial crime prejudice), would seem sumption of have excused might even of counsel advice in this of habeas relief case. compel denial act; the defendant Tatum the entire reasons, majority’s only re- For these lawyer the conflicted might have blamed finding ef- maining for adverse rationale very that was recommending the act also fails. fect testimony Factual of the trial. the center H. di- could not have by Longest April treatment In the between rectly altered the law’s months . husband, her night Rubin shot Lisa shooting itself. day she was and November hand, Tatum, Third, unlike the case murder, employed she five convicted of his review of did not involve federal them, Longest lawyers. Although two The claim of the defendant conviction. Gavin, on the poorly night served *17 simply implicate did not therefore Tatum lawyers three other talented killing, in ... federal- “significant interest[ ] killing days within took over habeas the federal underlie[s] ism that over six months case for prepared her Smith, 220 F.3d Evans v. scheme.” specifically The court trial. before (4th Cir.2000). contrast, when con- “highly qualified three found those claim, we must bear sidering Rubin’s defense experienced criminal counsel” in ... re- “important ] mind the interest! defense, rep- alone fashioned un- judgments court spect for state lawyers at trial. Those three her resented statutory scheme.” habeas derlie[s] to advise Rubin decision made the tactical enactment of Congress’s Id. at 323. to her con- respect with privilege to assert AEDPA, decided occurred after which we Those Longest and Gavin. with versations Tatum, importance heightens further this decision lawyers reached three overturn concerns. To federalism everything these the door opening avoid court on of a state reasoned decision knew about Longest and Gavin rationally dis- her husband and precedent, relationship of our with tangled the basis after she killed incriminating ad- behavior and neither by another circuit puted majority nor the district him. Neither Supreme dressed nor confirmed any one of those three suggests skillfully represent lawyers did not conflicting
or had an interest with Rubin’s. only anyone conceivable reason faulting performance think of
would taint counsel is some kind of from the
.trial lawyers part took
two conflicted who no Supreme
the trial. But has Court a non-participating
never held that law-
yer’s conflict could so infect otherwise un- lawyers’ representation
conflicted as to
render the latter’s constitu-
tionally ineffective. Even when a conflict- lawyer appears
ed at trial and handles work, the circuits have divided as to lawyer
whether conflicted can taint the other,
representation of uncon- otherwise lawyers.
flicted
Against legal and factual back-
ground, I cannot conclude that the state rejecting
court’s decision Rubin’s ineffec- to, claim “contrary
tive-assistance or of, application
involved an unreasonable law, established Federal as deter- Supreme
mined Court.” 2254(d)(1). §
U.S.C.A. I therefore re-
spectfully dissent.- DUKE,
Dale Lincoln Petitioner-
Appellant, COCKRELL, Director,
Janie De Texas
partment Justice, of Criminal Institu Division,, Respondent-Appellee.
tional
No. 01-10232.
United States Appeals, Court of
Fifth Circuit.
May
Rehearing Denied June 2002.* * 25, 2002, May Due to Judge his death on participate Politz did not in this decision.