United States District Court, Northern District of Illinois, E.D
June 22, 1984
UNITED STATES OF AMERICA EX REL. MICHAEL HANRAHAN, PETITIONER,
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.
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
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
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
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
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
better served by defining the required showing as twofold:
1. an actual, as opposed to only a potential, conflict of
2. that has in fact adversely affected counsel's
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
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
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
As for a showing of different behavior "based on the record and
not on mere speculation," none of Michael's three hearings
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
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
Perhaps, perhaps I missed that perceptiveness at the
sentencing, but it was not anything to be attributed to Mr.
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
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
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