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. e du/thir dc ir c uit_1998/25Filed February 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3350

GARY LEE HESS,

Appellant,

v.

J.F. MAZURKIEWICZ, Supt.; THE ATTORNEY GENERAL

OF THE COMMONWEALTH OF PENNSYLVANIA

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 94-cv-00237J)

ARGUED NOVEMBER 20, 1997

BEFORE: SCIRICA and LEWIS, Circuit Judges, and POLLAK,* District Judge.

(Filed February 9, 1998)

Pam E. Goldman (ARGUED)
Post Office Box 81042 Pittsburgh, PA 15217

Attorney for Appellant

___________________________________________________ ______________

*Honorable Louis H. Pollak, Senior United States Di strict Judge for the Eastern District of Pennsylvania, sitting by design ation.Jerome T. Foerster (ARGUED)

Office of Attorney General of Pennsylvania Strawberry Square

15th Floor Harrisburg, PA 17120

Attorney for Appellees

OPINION OF THE COURT

LEWIS, Circuit Judge.

Gary Lee Hess appeals from the district court's den ial of his habeas corpus petition, raising two related cla ims. First, he alleges that trial counsel's performance was def icient
due to a decision not to call certain witnesses. Se cond, Hess contends that his lawyer labored under a confl ict of interest caused by his simultaneous representation of the victims' father in another case, and that this conf lict impermissibly tainted counsel's performance during Hess's trial. We conclude that Hess's attorney did not vio late professional standards by not calling additional wi tnesses
at trial. Because the record does not reveal whethe r Hess preserved his conflict of interest claim, however, we will
remand the remainder of the case to the district co urt for
consideration of whether this claim has been exhaus ted.

I.

Hess was convicted of multiple counts of sexual misconduct with the minor children of his sister, B arbara Becker. Hess's brother-in-law, Thomas Becker ("Beck er"), is
the father of two of the victims. When Hess's case went to trial, his attorney, Mr. Ling, also represented Bec ker on unrelated drug charges. Hess asserts that due to a conflict of interest, Ling failed to interview potential wit nesses who would have stated that Becker, not Hess, actually a bused the victims. In particular, Hess alleges that Thoma s Hafer, Becker's cousin, would have testified that Becker g ave the children drugs and then sexually molested them. Hes s also contends that Ling declined to investigate a suppos ed

2deathbed statement by the children's mother, which

inculpated her husband and suggested that he might have

framed Hess.1

Hess maintains that he asked Ling to call Becker an d Hafer as witnesses. Ling declined to do so, and als o did not investigate the possibility that Becker committed t he acts of sexual abuse. In addition, Ling did not follow up o n Hess's request that he interview co-workers who might supp ort an alibi defense. As a result, Hess's defense consiste d almost entirely of testimony from Hess himself and from hi s closest
relatives.

II.

We address first the claim that Ling's representati on fell below objective standards of reasonableness because he did not present the testimony of certain witnesses of w hom he
was aware. "Because ineffective assistance of couns el claims present mixed questions of law and fact . . . review is plenary." United States v. Kauffman, 109 F.3d 18 6, 187 (3d Cir. 1997). A defendant who alleges that counse l was ineffective due to strategic errors must show both that the attorney's performance was lacking, and that this d eficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

A.

The potential witnesses whom Hess argues Ling shoul d have interviewed and called fall roughly into two c ategories:
alibi witnesses and witnesses who would have testif ied that
someone other than Hess committed the abuse. Addres sing the latter category first, we conclude that Ling wa s not
ineffective because he failed to call witnesses who would

___________________________________________________ ______________

1. Apparently, the day before Barbara Becker died, a Children and Youth Services ("CYS") employee visited her at the hospit al to discuss the
accusations that Hess had abused the children. Hess alleges that Barbara Becker vehemently defended his innocence in the presence of the CYS worker and hospital personnel, and that she stated that Thomas Becker wished to implicate Hess. Hess maintains tha t Ling should have called the hospital personnel as disinterested witn esses.

3have testified that either Thomas Becker or one of the

children's babysitters sexually abused the victims. Our
review of ineffective assistance of counsel claims does not permit us, with the benefit of hindsight, to engage in speculation about how the case might best have been tried. We therefore accord counsel's strategic trial decis ions great deference. Because Ling's trial strategy allegedly resulted from incomplete investigation, however, his decisio ns are entitled to a lesser degree of deference. United St ates v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). ("While
counsel is entitled to substantial deference with r espect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide min imally competent professional representation.") More speci fically,

strategic choices made after less than compl ete investigation are reasonable precisely to th e extent that reasonable professional judgments support th e limitations on investigation [and] counsel h as a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffecti veness case, a particular decision not to investigate mus t be directly
assessed for reasonableness in all the circu mstances, applying a heavy measure of deference to cou nsel's judgments.

Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 690-91 (1984)).

Considering all the circumstances, Ling made "reasonable decision[s] that ma[de] particular inve stigations unnecessary." Id. Ling stated at the state post-con viction hearing that Becker would have been a hostile witne ss, and it is undisputed that Becker disliked Hess and want ed to see him convicted. We therefore agree with the dist rict court's conclusion that Ling reasonably decided not to call Becker at trial. Further, Ling also testified that he rejected Hafer and other of the children's babysitters as wi tnesses only after concluding that the jury would find them unpersuasive because of their unsavory appearances or criminal records. Hess believes that the witnesses' questionable backgrounds actually could have helped his

4case, because the jury might have inferred that the se

witnesses abused the children themselves. Hess over looks the risks inherent in this strategy, however, since the witnesses were unlikely to cooperate with such a de fense. Accordingly, we disagree that Ling's decision not t o call these witnesses violated objective professional nor ms. Finally, Ling did not investigate Barbara Becker's alleged deathbed statement, which purported to exonerate He ss, because he believed it was not helpful, and would n ot have been admissible at trial.2 We emphasize that our ho lding regarding these witnesses addresses only the issue of whether these actions necessarily violated objectiv e standards of reasonableness, irrespective of any co nflict of interest. Because, as described in Part III, a diff erent legal analysis governs whether an actual conflict of inte rest adversely affects legal representation, this holdin g does not
influence our review of Hess's conflict of interest claim.

We also hold that Ling was not ineffective for fail ing to call Gary Trivelpiece, a Pennsylvania State Police trooper, to testify regarding alleged inconsistencies in the vi ctims' accounts. This, too, was a reasonable trial strateg y, because Ling feared that Trivelpiece's testimony wo uld alert the jury to additional charges pending against Hess in Blair County, Pennsylvania. Ling reasonably could have be lieved that the prejudicial effect of this information out weighed any benefit to be gained from Trivelpiece's testimo ny. We will not find counsel ineffective for adopting a li tigation strategy based upon this reasonable professional ju dgment. See Strickland, 466 U.S. at 691.

B.

Furthermore, we reject Hess's claim that he is enti tled to
a retrial because counsel failed to call additional alibi witnesses. Even assuming that prevailing profession al norms required Ling to present additional alibi tes timony, Hess suffered no prejudice from this potential miss tep. To show prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's erro rs, the

___________________________________________________ ______________

2. See Transcript of Evidentiary Hearing, Court of Common Pleas of Bedford County, Pennsylvania, August 10, 1992, at 5 2.

5trial's outcome would have been different. See id. at 694;

see also Frey v. Fulcomer, 974 F.2d 348, 358 (3d Ci r. 1992). "A reasonable probability is a probability s ufficient
to undermine confidence in the outcome." Strickland , 466

U.S. at 694.

Hess suffered no prejudice from Ling's failure to c all
additional alibi witnesses because even without the se witnesses, Ling presented a plausible, if ultimatel y unsuccessful, alibi defense through Hess, his wife and his mother, all of whom testified that Hess was never a lone with the children. We do not dismiss lightly Hess's argument that "alibi testimony by a defendant's fam ily members is of significantly less exculpatory value than the testimony of an objective witness." Romero v. Tansy , 46 F.3d 1024, 1030 (10th Cir. 1995). Nonetheless, in t his case,
because the crime occurred in the house where Hess lived, and the crucial issue was whether Hess spent time a lone with the victims, it is unlikely that outside witne sses could have provided much relevant information. Moreover, Hess's argument assumes that the abuse only occurred durin g the brief period when he worked in another county and d id not sleep in the Becker household on week nights. This is
incorrect. The children testified to instances of a buse outside that time frame, and in any case, even when Hess worked out of town, he stayed at the Beckers' house on weekends. In fact, to present a complete alibi defe nse, Ling

would have had to account for Hess's whereabouts du ring the course of over a year, something Hess himself a dmits was virtually impossible. Further, since Hess did n ot show that his proposed witnesses would have testified in his favor, we cannot conclude that they would have conv inced the jury of his innocence. Accordingly, we hold tha t Ling's failure to interview and call at trial every alibi witness Hess
recommended does not undermine our confidence in th e verdict.

III.

Hess also asks us to grant a retrial on the grounds that Ling labored under an actual conflict of interest, which prevented a meaningful defense. We are not free to decide this question, because the record does not show whe ther

6Hess raised this claim in previous appeals. See Lan dano v.

Rafferty, 897 F.2d 661, 668 (3d Cir. 1990) (noting that a state prisoner must exhaust available state remedie s before a federal court can consider his petition for habea s corpus). Neither the state courts' opinions nor the magistra te judge's reports and recommendations addressed this argument . It is clear, however, that Hess presented this claim t o the district court, which considered only whether Ling was ineffective for failing to call Thomas Becker as a defense witness, and not whether an actual conflict of inte rest influenced Ling's decision not to investigate Becke r's possible guilt. Accordingly, we deem it appropriate to
remand this matter to the district court. Cf. Lace v. United States, 736 F.2d 48 (2d Cir. 1984) (remanding due t o possible conflict of interest where defendant plead ed guilty on advice of counsel who also represented a potenti al witness for the prosecution).

On remand, the district court should first consider
whether Hess's conflict of interest claim was "fair ly presented" to the state courts, i.e., whether Hess presented
a claim to the state courts which was based on the same facts and legal theory argued in his habeas petitio n. Landano, 897 F.3d at 668-69. If, however, that clai m has been preserved, Hess's argument raises grave doubts about the reliability of the verdict.

The Sixth Amendment guarantees a criminal defendant counsel's "undivided loyalty free of conflict of in terest." Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984). This requirement is an essential foundation of our adversarial system of justice, providing the minimu m necessary to ensure that criminal defendants receiv e representation that "puts the government to its pro ofs in an adversarial manner." United States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991). When an attorney's represe ntation is corrupted by conflicting interests, he or she "b reaches the duty of loyalty, perhaps the most basic of coun sel's duties." Strickland, 466 U.S. at 692. In such circu mstances, the precise impact on the defense is so difficult t o measure, and the possibility of prejudice so great, that we scrutinize the facts differently than in other ineffective ass istance of

counsel cases. Id.

7Specifically, counsel is ineffective if he or she " actively

represented conflicting interests" and an actual co nflict of interest adversely affected the lawyer's performanc e, Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Unlike the c ase in which a defendant argues only that counsel pursuedf lawed trial strategies, if the accused shows that an actu al conflict of interest tainted counsel's performance, we will presume prejudice. Strickland, 466 U.S. at 692; United Stat es v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) ("To re ach
the level of constitutional ineffectiveness the con flict must cause some lapse in representation contrary to the defendant's interests but such lapse need not rise to the level of actual prejudice.") (citation omitted). If the accused can establish only a potential conflict of interest , prejudice must be proved. See Reed v. City of Chicago, 77 F.3 d 1054, 1057 n.3 (8th Cir. 1996); Stoia v. United States, 2 2 F.3d 766, 770 (7th Cir. 1994).

If the district court reaches this claim on remand, Hess may show that an actual conflict of interest arose from Ling's dual representation if his "interests diverg e[d] with respect to a material factual or legal issue or to a course of action such that the attorney finds himself in the untenable position of serving two clients with incompatible n eeds." United States v. Pungitore, 910 F.2d 1084, 1140 (3d Cir. 1990) (citations omitted). To do so, Hess must iden tify a plausible defense strategy that could have been pur sued, and show that this alternative strategy inherently conflicted with, or was rejected due to, Ling's other loyaltie s or interests. See Gambino, 864 F.2d at 1070. Significa ntly, he need not show that the lapse in representation was so egregious as to violate objective standards for att orney performance. See id. (noting that accused may estab lish a lapse in representation merely by showing counsel r ejected a defense that "possessed sufficient substance to b e a viable alternative"). In focusing upon evidence tha t Becker molested the children, it would appear that Hess ha s identified a plausible defense which could have bee n pursued. But Hess also argues that his interests an d Becker's conflicted, since implicating Becker in th e crimes might have exculpated Hess, but could have resulted in charges being brought against Becker. See Freund v. Butterworth, 117 F.3d 1513 (11th Cir. 1997) (conclu ding

8that actual conflict of interest adversely affected law firm's

representation when firm rejected viable defense st rategy of shifting blame for murder to its former client); se e also Moscony, 910 F.2d at 749 (holding that a conflict o f interest exists where a potential defense would implicate an attorney's other clients in crimes for which they m ight later be indicted). In addition, if witnesses testified t hat Thomas Becker molested the children after giving them drug s, that testimony might have been admissible, subject to th e rules of evidence, in Becker's trial for drug offenses in which Ling was defense counsel. Furthermore, inculpating Becke r in sexual misconduct almost certainly would have undermined Becker's trust in Ling, making Ling's representation of Becker more difficult.

Moreover, we note that our decision in United State s v. Gambino, supra, does not foreclose a conclusion tha t Ling's performance suffered due to an actual conflict of i nterest. In Gambino, a defense attorney failed to present ev idence suggesting that the defendant Gambino had been char ged with possessing heroin that actually belonged to an other of counsel's clients, Mazzara. This dual representatio n produced no actual conflict of interest, however, b ecause the government already possessed the evidence impli cating Mazzara in illegal drug activity. Thus the attorney never had to choose between presenting evidence helpful t o Gambino's defense and possibly prejudicing Mazzara. Gambino, 864 F.2d at 1071. By contrast, nothing ind icates that the police suspected Thomas Becker of child molestation. Furthermore, in Gambino, trial counsel did not suggest Mazzara was the source of the heroin becaus e he believed this argument was so implausible that it w ould
undermine the entire defense. Id. at 1071-72. Unlik e Gambino's attorney, Ling has not testified that imp licating Becker would be a specious defense; Ling merely sta ted
that he did not call Becker as a witness because Be cker disliked Hess. Even assuming Ling had legitimate re asons for not calling Becker to testify, that fact cannot explain his decision not to consider other witnesses, notably T homas Hafer, who could have testified that Becker abused the
victims.

9IV.

For the foregoing reasons, we affirm the district c ourt's denial of the writ of habeas corpus, insofar as it applies to Hess's claim that his representation fell below pro fessional
standards because counsel failed to call additional witnesses. The district court, however, did not exp lore fully Hess's claim that his lawyer rejected a defense inc ulpating
another client due to an actual conflict of interes t, which, in turn, may have deprived him of the right to coun sel. Accordingly, the district court's order of June 5, 1996, is vacated in part, and this matter is remanded for fu rther proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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