Milton Joseph BROWN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 81-3006.
United States Court of Appeals, Ninth Circuit.
Decided Jan. 7, 1982.
Argued and Submitted Sept. 17, 1981.
665 F.2d 271
This court has had occasion to consider the effect of a California decree of annulment on rights conferred by federal law arising during the period of the marriage. In Hendrix v. United States Immigration & Naturalization Service, 583 F.2d 1102 (9th Cir. 1978), petitioner, a native of the Philippines, had entered the United States on a visa issued to her as the unmarried daughter of a United States citizen. In fact at the time of her entry, she was married and as a married person was entitled to a lower admission preference. After entry, she secured a California decree of annulment of marriage and contended that it should be given retroactive effect. This court rejected her claim holding that “it is the marital status at the time of entry that should serve as the basis for one alien‘s preferment over others under the quota system. At the time petitioner entered the United States she was not an unmarried person.” Id. at 1103.
Application of that holding to the facts of this case would be consistent with the California rule that annulment should relate back only when it promotes sound policy. General rules such as the marriage termination provision “are essential if a fund of this magnitude is to be administered with a modicum of efficiency.” Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977). Accordingly, it is the marital status that actually existed during the months in question that determines Appellant‘s entitlement to social security benefits. During those months Appellant was a married person.
JUDGMENT AFFIRMED.
U. S. Atty. Rene J. Gonzalez, Anchorage, Alaska, for respondent-appellee.
Before CHAMBERS and TANG, Circuit Judges, and THOMPSON,* District Judge.
CHAMBERS, Circuit Judge:
Appellant was convicted of narcotics offenses in 1975 and thereafter filed a motion to vacate his sentence (
On remand the district judge found explicitly that a conflict of interest did exist in the dual representation. But the district judge continued:
“However, the court cannot find, based on a thorough re-examination of the whole record in this case, that such conflict adversely affected defense counsel‘s performance. The government‘s incriminating evidence in this case was massive to the hundreds of exhibits. The defendant was awash in a sea of adverse evidence, which, in short overwhelmingly established this defendant‘s guilt. The court, then, specifically finds that the existing conflict of interest, under all the circumstances of this case, did not adversely affect counsel‘s performance, and the court so rules in response to the remand of the Court of Appeals.”
Appellant has again appealed and says that the district judge did not use the correct test under Cuyler. We must agree. The weight of evidence against Brown (even such overwhelming evidence as the district judge found here) cannot, of itself, justify the denial of relief under
“We read Sullivan [Cuyler v. Sullivan] to define an actual, as opposed to a potential, conflict as one which in fact adversely affects the lawyer‘s performance. But the requirement that the petitioner show this adverse effect is not the same as the requirement of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974 [99 S.Ct. 1542, 59 L.Ed.2d 793] (1979), that the petitioner show that counsel‘s incompetent assistance resulted in actual prejudice. But such evidence would be completely irrelevant to an inquiry whether the same error, if caused by an actual conflict of interest, showed an adverse effect on counsel‘s performance.” (Emphasis supplied.)
The test, as stated in Cuyler, is whether the conflict of interest adversely affected the performance of Brown‘s attorney. This is a question that a trial judge, who has seen the attorney in action, is uniquely equipped to answer. We, therefore, remand the case again to permit the trial judge this opportunity, now with the added guidance that Hearst [U. S. v. Hearst, 638 F.2d 1190 (9th Cir. 1980)] provides.
TANG, Circuit Judge, concurring:
I fully concur in the above opinion. I write separately only to highlight the standards that should govern the district court‘s determination on remand. The district court concluded that the appellant‘s representation was not adversely affected because further cross-examination of the D.E.A. agent was highly unlikely to change the verdict against the appellant. Although this is the proper inquiry under the “actual prejudice” test of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), it is not the inquiry required by Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). To satisfy Cuyler, the district court must determine whether the appellant‘s attorney refrained from a more vigorous cross-examination of the D.E.A. agent because of his divided loyalties, and, if so, whether the appellant‘s representation would have benefited even marginally from a more aggressive cross-examination.