Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellant Cuyler, et al., in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judge Garth would grant the petition for rehearing.
STATEMENT OF JUDGE ADAMS SUR PETITION FOR REHEARING
This case comes to us on remand from the Supreme Court. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). The Court vacated the judgment in United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979), which had directed that John Sullivan be discharged from custody unless the state retried him in a reasonable time.
After his conviction for participating in two brutal murders, Sullivan complained that he had been denied effective assistance of counsel because his attorney's decision not to call a witness was tainted by conflict of interest. A panel of this Court granted relief on the ground that concurrent representation of several persons who had been charged with the murder enmeshed Sullivan's counsel in a possible conflict. The Supreme Court held that the mere possibility of conflict was insufficient to nullify a criminal conviction; rather, to demonstrate a violation of Sixth Amendment rights, a defendant must show that an actual conflict of interest adversely affected his lawyer's performance. 446 U.S. at 350. The Supreme Court remanded the case so that Sullivan's claim could be adjudicated under the proper legal standard.
On remand, the panel concludes that a writ of habeas corpus should issue because a conflict of interest did adversely affect his counsel's performance. More specifically, the panel finds adverse impact on Sullivan's representation in the role an assistant counsel played in the decision not to call as a witness Gregory Carchidi, who had also been indicted for the crime of which Sullivan stood accused. The panel reaches this conclusion as to adverse impact in spite of a finding, accepted by the Pennsylvania Supreme Court, that Sullivan's chief counsel decided not to call Carchidi to avoid the possibility that the prosecution might extract evidence incriminating Sullivan through cross-examination of Carchidi.*fn1
The decision announced by the panel represents, in my view, a questionable and troubling erosion of the presumption of correctness that federal courts must accord the factual determinations of state courts in reviewing habeas petitions. 28 U.S.C. § 2254(d); Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982); Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1980). In addition, the panel's decision would appear to threaten the important principle of finality in criminal convictions obtained after full review by state courts. Finally, the rule governing multiple representation of criminal defendants, at least as applied in this case, may entail serious practical difficulties for the administration of criminal justice.
Sullivan's conviction has been reviewed twice in the several tiers comprising the state criminal system in which his case was originally heard. His trial has been examined by a federal magistrate and a federal district judge. A panel of this Court has twice scrutinized the procedures through which Sullivan's guilt has been established, and the Supreme Court of the United States has extensively reviewed the proceedings. Now, sixteen years after the crime, Sullivan will receive a new trial on the basis of an objection that was raised for the first time many years after the original trial and had not been made an issue on direct appeal.
The burden of demonstrating that an error at trial will support a collateral attack on the constitutional validity of a state court judgment is "even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977). We are entitled to presume that Sullivan stands "fairly and finally convicted," since he has exhausted his state appeal and has had "a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). The standard of review under 28 U.S.C. § 2254 is strict, not because state criminal convictions are subject to less scrutiny than federal convictions, but because such collateral review involves questions of comity and threatens the finality of legally obtained judgments.
In our federal system, the states bear the primary responsibility for defining and enforcing the criminal law. Federal intrusion into state criminal trials fairly conducted and reviewed can threaten a state's legitimate right to punish those who commit serious crimes and frustrate its good-faith attempt to preserve constitutional rights through a structured system of appeals. See Engle v. Isaac, 456 U.S. 107, 128, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). Federal review of state criminal proceedings is important to our system of guaranteed rights, but that review must remain subject to standards designed to maintain the vitality of the court systems whose decisions are questioned. The core of those decisions is the finality of judgments rendered through procedures that are fundamentally fair. While a writ of habeas corpus technically entitles the petitioner only to a retrial, in practice it can mean complete freedom from prosecution. With the lapse of time -- here, more than sixteen years after a double slaying -- witnesses vanish or their memories fade; sometimes, as in the case at bar, key participants in the original trial will have died. As a result of the panel's decision, many prisoners may now be able to file petitions for habeas, claiming that, although their convictions became final many years ago, their legal representation at trial may have been flawed by a conflict of interest. It may be next to impossible to counter such allegations at such a late date.
For many years it had been the accepted practice for a single attorney to represent several defendants at a criminal trial. Although I applaud the attempt to guard against the possible dangers inherent in multiple representation, I believe we must also recognize that the law now governing such representation is quite different from what it was in the past. See Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra L. Rev. 315, 318-20 (1977). In brief, the conflict rule, as applied by the panel in this case, brings to the fore the problem of retroactive application of a new rule. See Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1965); Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1964). The subsequent discovery of a constitutional defect not legally cognizable at the time of trial does not necessarily render the original trial fundamentally unfair. See generally Mackey v. United States, 401 U.S. 667, 675, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., concurring and dissenting).
Finally, I have considerable doubt about several factual conclusions reached by the panel. I am much less certain, for instance, that Sullivan was adversely affected by the decision not to call Carchidi as a witness.*fn2 Indeed, there is little hard evidence to suggest that Carchidi would have testified. In any case, I believe that we are bound, absent unusual circumstances, to accept the findings of the Pennsylvania Supreme Court on this and several other points.*fn3 See Sumner, supra, 449 U.S. at 544-52. I feel constrained to vote for rehearing because of fundamental questions of comity and finality that the panel has apparently not addressed in reaching its judgment. I also believe that ...