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UNITED STATES EX REL. HANRAHAN v. WELBORN

United States District Court, Northern District of Illinois, E.D


June 22, 1984

UNITED STATES OF AMERICA EX REL. MICHAEL HANRAHAN, PETITIONER,
v.
GEORGE C. WELBORN AND NEIL F. HARTIGAN, RESPONDENTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Michael Hanrahan ("Hanrahan" or simply "Michael") petitions for a writ of habeas corpus setting aside his state court sentence. Hanrahan says he was denied effective assistance of counsel at his sentencing hearing due to an alleged conflict of interest on the part of his trial attorney Lawrence Suffredin ("Suffredin") — because Suffredin had, before the sentencing hearing, agreed to represent Hanrahan's codefendant and father Homer Hanrahan ("Homer") on appeal. Respondents (Centralia Correctional Center Warden George Welborn and Illinois Attorney General Neil Hartigan) now move for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, that motion is granted and Hanrahan's petition is dismissed.

Facts*fn1

Michael and his father Homer were charged with the murder, aggravated kidnapping and aggravated battery of Michael's mother (Homer's wife). After a trial at which Michael and Homer were tried jointly but represented by separate counsel, a jury found Michael not guilty of the murder charge but guilty of the second and third charges, while finding Homer guilty of all three charges. Some time after the verdicts and before the sentencing hearing, Michael's attorney Suffredin agreed to represent Homer on appeal and actually filed Homer's notice of appeal.

At the sentencing hearing Michael and Homer continued to be represented by separate counsel (Suffredin acting for Michael, and another lawyer representing Homer). Suffredin presented four witnesses in mitigation on Michael's behalf, including Father James Chereso, a psychiatric social worker who testified (R. 1832) there was "a symbiotic relationship between Michael and his father in which the father dominates. And the result of this is that I don't think Michael has ever found out who he really is as an individual." Suffredin argued (R. 1846):

  [Michael] was the unaggressive member in the actions that led
  to Marion Hanrahan's death.

  The jury separated him from his father by its verdict, and
  separated his actions from those that caused part of the
  occurrence and those that caused the actual death.

At the conclusion of the hearing the trial judge sentenced Michael to concurrent terms of 10 to 25 years for aggravated kidnapping and 3 to 10 years for aggravated battery, and Homer to concurrent sentences of 50 to 100 years for murder, 20 to 40 years for aggravated kidnapping and 3 to 10 years for aggravated battery.

Both convictions were upheld on appeal. People v. Hanrahan, 64 Ill. App.3d 207, 20 Ill.Dec. 866, 380 N.E.2d 1075 (1st Dist. 1978), cert. denied, 444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979). After certiorari was denied Michael moved pursuant to Ill. Rev.Stat. ch. 38, ¶ 1005-8-1(d) for reduction of sentence before the judge who had sentenced him originally. Although the trial court granted his motion, reducing the sentences to 5 years' probation for aggravated kidnapping and 1 to 10 years for aggravated battery, the Illinois Supreme Court vacated that reduction by writ of mandamus. People ex rel. Carey v. Collins, 81 Ill.2d 118, 39 Ill.Dec. 795, 405 N.E.2d 774 (1980).

Shortly thereafter Michael filed a post-conviction petition in the state court, arguing the original sentencing hearing was tainted by Suffredin's simultaneous representation of Michael (for all purposes) and Homer (for purposes of appeal) at that time. That petition was denied, and the denial was upheld by the Appellate Court of Illinois in a November 15, 1982 unpublished order. Having thus exhausted his state remedies, Michael now seeks review of the issue posed by his post-conviction petition.

Conflicts of Interest: The Constitutional Standard

Michael contends Suffredin was burdened by a conflict of interest and thus did not make appropriate arguments in mitigation at the sentencing hearing. Michael suggests that out of concern for the interests of his other client Homer, Suffredin declined to say or show anything damaging about Homer. According to Michael the best argument to make in mitigation would have been to foist as much of the blame as possible on Homer's shoulders, with the consequence that Michael would be seen as less culpable.

There is however an obvious and fatal flaw in that contention: Suffredin did make just such an argument. As the "Facts" section of this opinion indicates, not only did Suffredin argue to the judge that Michael was "the unaggressive member" of the two codefendants, he also deliberately presented a witness in mitigation, Father Chereso, who pointed to a symbiotic relationship between Michael and his father and testified that he believed Michael experienced identity through Homer.

In response Michael falls back to the position Suffredin's argument was not as forceful as it would have been had there been no conflict (Mem. 4-5, citations omitted):

  Not only did defense counsel (burdened by the conflict) not
  bring forth the evidence forcefully, he failed to make a
  forceful argument based upon his relationship between the
  father and the son. His argument was limited to: [quoting
  Suffredin's argument set forth in the "Facts" section of this
  opinion]. Such pallid statements are so neutral as to be
  non-argumentive [sic]. Such argument violates the principle
  that a lawyer must be an advocate . . . and must argue
  strenuously for leniency. . . . It was bland. It lacked the
  thrust that naturally existed because of the situation.

Whether that claimed difference in argument is cognizable by this Court in habeas proceedings depends on controlling Sixth Amendment principles.*fn2

To establish a violation of the Sixth Amendment caused by his trial counsel's conflict of interest, a defendant who raised no objection at trial must demonstrate "an actual conflict of interest adversely affected his lawyer's performance."*fn3 Strickland v. Washington, ___ Page 255 U.S. ___, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), quoting from Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). See Wilson v. Morris, 724 F.2d 591, 594 (7th Cir. 1984) (en banc).*fn4 Once such a conflict-caused adverse effect is shown, courts do not inquire (as they do in cases in which incompetence of counsel is alleged) whether that effect was likely to have led to a different result in the criminal proceeding. Strickland, 104 S.Ct. at 2067 put it this way:

  Given the obligation of counsel to avoid conflicts of interest
  and the ability of trial courts to make early inquiry in
  certain situations likely to give rise to conflicts, see,
  e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the
  criminal justice system to maintain a fairly rigid rule of
  presumed prejudice for conflicts of interest.

But it is exceedingly plain that the presumption of prejudice does not arise unless counsel's performance has actually suffered because of the conflict — that is the precise sense in which the Supreme Court has spoken of "actual conflict" as contrasted with "possible" or "potential" conflicts. Cuyler, 446 U.S. at 348-50, 100 S.Ct. at 1718-19. It is only when the elements of "actual conflict" (including conflict of interest and adverse effect) are shown that no further showing of prejudice or harmful error is required. See Foxworth v. Wainwright, 516 F.2d 1072, 1077 n. 7 (5th Cir. 1975).

It is a somewhat odd locution to use the term "actual conflict" as though it were limited to a conflict that adversely affects counsel's performance. Conflicts of interest would instead seem to be objectively ascertainable,*fn5 and in many instances such a conflict is undeniably present regardless of the manner in which the burdened counsel actually comports himself or herself. For example, suppose a single lawyer represents criminal codefendants, and each defendant's sole defense is that the other defendant committed the crime. It would be passing strange to refer to that situation as posing no "actual conflict" solely because the same counsel managed to present each client's defense earnestly and without glaring omissions.*fn6 Both language and precision of analysis would be better served by defining the required showing as twofold:

    1. an actual, as opposed to only a potential, conflict of
  interest

    2. that has in fact adversely affected counsel's
  performance.*fn7

Be that as it may, no harm is done so long as it is recognized that the courts' reference to "actual conflict" embraces the ingredient of an actual adverse effect on the lawyer's performance.

On the requirements for showing that ingredient, it is notable that United States v. Mandell, 525 F.2d 671 (7th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976) requires "actual conflict" to be shown (1) "with a reasonable degree of specificity" (id. at 677) and (2) "based on the record and not on mere speculation" (id. at 678 n. 12). Although its definition did not divide the "actual conflict" inquiry into its component parts, Mandell plainly applied those standards both to the issue whether there was a conflict of interest and to the issue whether the conflict caused an adverse effect on counsel's performance. Thus the dual requirement of Mandell should be applied not only to claims of "actual conflict" in general, but also to claims of adverse effect on counsel's performance in particular.

There are cogent reasons for such a treatment. Clearly a lawyer's lack of sensitivity to the existence of a conflict does not bar the court's finding there was a real conflict. But the same insensitivity — say the lawyer's lack of an adequate realization that his or her future representation of a codefendant on appeal may be impacted by the current representation of the defendant — actually tends to negate the existence of any adverse effect on the performance of that current representation. Hence the need for the twofold showing required by Mandell.

Michael's submission here bears neither of those attributes. Only a brief discussion is needed to demonstrate the absence of each element.

As for any "reasonable degree of specificity," Michael's current counsel mistakes what he characterizes as "forceful" arguments for the real standard of effective arguments. Advocates differ widely in their styles, and some of the most effective of them are notable for their low-key (perhaps non-"forceful") presentations. If our court system is sometimes swayed by bombast and dramatics more than facts and equities, that is a weakness not a strength, and it should not be institutionalized in the law of conflicts of interest. It must be remembered the proceeding at issue was a sentencing hearing by the court, not a jury trial. Argumentative style may well have been less effective in that situation. But all this is really beside the mark. What is critical is whether a specific difference in behavior has been reasonably demonstrated — and of that there is really no hint other than current counsel's own rhetoric.

As for a showing of different behavior "based on the record and not on mere speculation," none of Michael's three hearings established that:

    1. On the contrary, the record of the sentencing hearing
  shows Suffredin made the very argument now urged, and a
  witness in mitigation was presented to support it. While a
  different case would have been presented had Suffredin
  "withheld from the court . . . factors in mitigation which
  would have benefited [Michael], but prejudiced [Homer]"
  (United States v. Mavrick, 601 F.2d 921, 931 (7th Cir.
  1979)), no such showing has been made.

    2. At resentencing the trial judge did reduce Michael's
  sentence (the reduction later reversed by the Illinois
  Supreme Court's writ of mandamus). But in doing so the judge
  cited Michael's behavior after his original sentencing, such
  as his

  return to college, rather than events that could have been
  considered at the initial sentencing.

    3. Suffredin's testimony at the post-conviction petition
  hearing really does not constitute a record showing of an
  adverse effect on his performance. While Suffredin admitted
  he made an argument for leniency in a different, more
  effective form at resentencing in 1979 than he did in
  sentencing in 1976 (R. 13),*fn8 and while Suffredin
  repented by saying he would not subject himself to such a
  conflict again (R. 15), he also testified he did not feel at
  the 1976 hearing he was operating under a conflict of
  interest (R. 9). So far as Suffredin was concerned, in 1976
  he really believed, and conducted himself as though, Michael
  was his only client — a concept that underpins the lack of
  any difference in his handling. In fact the trial judge
  concluded at the post-conviction hearing (R. 51):

    Both defendants were charged with murder, conceivably could
    have been both convicted of murder, but the jury was very
    perceptive and saw that there was a difference even though
    they were acting in concert, there was a difference between
    the father and the son, and they did not find the son guilty
    of murder.

    Perhaps, perhaps I missed that perceptiveness at the
    sentencing, but it was not anything to be attributed to Mr.
    Suffredin.

    He did an excellent job in presenting everything he could on
    behalf of his client and his client, I mean Michael, and I
    can see nothing that would warrant this Court in doing
    anything further.

Thus Michael's claim of any difference in Suffredin's behavior rests on nothing more than speculation.*fn9

This case cannot be distinguished from United States v. Mavrick, 601 F.2d at 931-32 in any way favorable to Michael. In Mavrick defendant claimed a conflict of interest at sentencing arising from counsel's joint representation of defendant and his codefendant, who had confessed while defendant maintained his innocence. Defendant argued his attorney should have tried to pin the blame on the confessing codefendant, but did not because of his loyalty to the codefendant. Our Court of Appeals was "unable to conclude that defense counsel's efforts were inhibited or impaired by the dual representation" (id. at 931). Defendant actually got a heavier sentence than his codefendant because (id. at 931 n. 11) he had not "taken that first step towards rehabilitation" by admitting his guilt. But there was "no reason to believe that such a comparison would not have been made had the defendants been separately represented" (id. at 931).*fn10

Conclusion

Michael has shown no basis for inferring his lawyer's conduct was adversely affected by an actual conflict of interest, thus tainting his state court sentencing. There is no genuine issue of material fact, nor is an evidentiary hearing required.*fn11 Respondents' motion for summary judgment is granted, and Michael Hanrahan's petition is dismissed with prejudice.


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