1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-9-1998

Hess v. Mazurkiewicz

Precedential or Non-Precedential:

Docket 96-3350

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Recommended Citation

"Hess v. Mazurkiewicz" (1998). 1998 Decisions. Paper 25.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/25
Filed 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 District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 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 denial of 

his habeas corpus petition, raising two related claims. First, 

he alleges that trial counsel's performance was deficient 

due to a decision not to call certain witnesses. Second, 

Hess contends that his lawyer labored under a conflict of 

interest caused by his simultaneous representation of the 

victims' father in another case, and that this conflict 

impermissibly tainted counsel's performance during Hess's 

trial. We conclude that Hess's attorney did not violate 

professional standards by not calling additional witnesses 

at trial. Because the record does not reveal whether Hess 

preserved his conflict of interest claim, however, we will 

remand the remainder of the case to the district court for 

consideration of whether this claim has been exhausted. 

I. 

Hess was convicted of multiple counts of sexual 

misconduct with the minor children of his sister, Barbara 

Becker. Hess's brother-in-law, Thomas Becker ("Becker"), is 

the father of two of the victims. When Hess's case went to 

trial, his attorney, Mr. Ling, also represented Becker on 

unrelated drug charges. Hess asserts that due to a conflict 

of interest, Ling failed to interview potential witnesses who 

would have stated that Becker, not Hess, actually abused 

the victims. In particular, Hess alleges that Thomas Hafer, 

Becker's cousin, would have testified that Becker gave the 

children drugs and then sexually molested them. Hess also 

contends that Ling declined to investigate a supposed 

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deathbed 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 and 

Hafer as witnesses. Ling declined to do so, and also did not 

investigate the possibility that Becker committed the acts of 

sexual abuse. In addition, Ling did not follow up on Hess's 

request that he interview co-workers who might support an 

alibi defense. As a result, Hess's defense consisted almost 

entirely of testimony from Hess himself and from his closest 

relatives. 

II. 

We address first the claim that Ling's representation fell 

below objective standards of reasonableness because he did 

not present the testimony of certain witnesses of whom he 

was aware. "Because ineffective assistance of counsel 

claims present mixed questions of law and fact . . . review 

is plenary." United States v. Kauffman, 109 F.3d 186, 187 

(3d Cir. 1997). A defendant who alleges that counsel was 

ineffective due to strategic errors must show both that the 

attorney's performance was lacking, and that this deficient 

performance resulted in prejudice. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). 

A. 

The potential witnesses whom Hess argues Ling should 

have interviewed and called fall roughly into two categories: 

alibi witnesses and witnesses who would have testified that 

someone other than Hess committed the abuse. Addressing 

the latter category first, we conclude that Ling was 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 hospital 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 that Ling should have 

called the hospital personnel as disinterested witnesses. 

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have 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 decisions great 

deference. Because Ling's trial strategy allegedly resulted 

from incomplete investigation, however, his decisions are 

entitled to a lesser degree of deference. United States v. 

Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). ("While

counsel is entitled to substantial deference with respect to 

strategic judgment, an attorney must investigate a case, 

when he has cause to do so, in order to provide minimally 

competent professional representation.") More specifically, 

 strategic choices made after less than complete 

 investigation are reasonable precisely to the extent that 

 reasonable professional judgments support the 

 limitations on investigation [and] counsel has a duty to 

 make reasonable investigations or to make a 

 reasonable decision that makes particular 

 investigations unnecessary. In any ineffectiveness case, 

 a particular decision not to investigate must be directly 

 assessed for reasonableness in all the circumstances, 

 applying a heavy measure of deference to counsel'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 investigations 

unnecessary." Id. Ling stated at the state post-conviction 

hearing that Becker would have been a hostile witness, and 

it is undisputed that Becker disliked Hess and wanted to 

see him convicted. We therefore agree with the district 

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 witnesses 

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 

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case, because the jury might have inferred that these 

witnesses abused the children themselves. Hess overlooks 

the risks inherent in this strategy, however, since the 

witnesses were unlikely to cooperate with such a defense. 

Accordingly, we disagree that Ling's decision not to call 

these witnesses violated objective professional norms. 

Finally, Ling did not investigate Barbara Becker's alleged 

deathbed statement, which purported to exonerate Hess, 

because he believed it was not helpful, and would not have 

been admissible at trial.2 We emphasize that our holding 

regarding these witnesses addresses only the issue of 

whether these actions necessarily violated objective 

standards of reasonableness, irrespective of any conflict of 

interest. Because, as described in Part III, a different legal 

analysis governs whether an actual conflict of interest 

adversely affects legal representation, this holding does not 

influence our review of Hess's conflict of interest claim. 

We also hold that Ling was not ineffective for failing to 

call Gary Trivelpiece, a Pennsylvania State Police trooper, to 

testify regarding alleged inconsistencies in the victims' 

accounts. This, too, was a reasonable trial strategy, 

because Ling feared that Trivelpiece's testimony would alert 

the jury to additional charges pending against Hess in Blair 

County, Pennsylvania. Ling reasonably could have believed 

that the prejudicial effect of this information outweighed 

any benefit to be gained from Trivelpiece's testimony. We 

will not find counsel ineffective for adopting a litigation 

strategy based upon this reasonable professional judgment. 

See Strickland, 466 U.S. at 691. 

B. 

Furthermore, we reject Hess's claim that he is entitled to 

a retrial because counsel failed to call additional alibi 

witnesses. Even assuming that prevailing professional 

norms required Ling to present additional alibi testimony, 

Hess suffered no prejudice from this potential misstep. To 

show prejudice, the defendant must demonstrate a 

reasonable probability that, but for counsel's errors, the 

_________________________________________________________________ 

2. See Transcript of Evidentiary Hearing, Court of Common Pleas of 

Bedford County, Pennsylvania, August 10, 1992, at 52. 

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

see also Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 

1992). "A reasonable probability is a probability sufficient 

to undermine confidence in the outcome." Strickland, 466 

U.S. at 694. 

Hess suffered no prejudice from Ling's failure to call 

additional alibi witnesses because even without these 

witnesses, Ling presented a plausible, if ultimately 

unsuccessful, alibi defense through Hess, his wife and his 

mother, all of whom testified that Hess was never alone 

with the children. We do not dismiss lightly Hess's

argument that "alibi testimony by a defendant's family 

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 this case, 

because the crime occurred in the house where Hess lived, 

and the crucial issue was whether Hess spent time alone 

with the victims, it is unlikely that outside witnesses could 

have provided much relevant information. Moreover, Hess's 

argument assumes that the abuse only occurred during the 

brief period when he worked in another county and did not 

sleep in the Becker household on week nights. This is 

incorrect. The children testified to instances of abuse 

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 defense, Ling 

would have had to account for Hess's whereabouts during 

the course of over a year, something Hess himself admits 

was virtually impossible. Further, since Hess did not show 

that his proposed witnesses would have testified in his 

favor, we cannot conclude that they would have convinced 

the jury of his innocence. Accordingly, we hold that Ling's 

failure to interview and call at trial every alibi witness Hess 

recommended does not undermine our confidence in the 

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 whether 

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Hess raised this claim in previous appeals. See Landano v. 

Rafferty, 897 F.2d 661, 668 (3d Cir. 1990) (noting that a 

state prisoner must exhaust available state remedies before 

a federal court can consider his petition for habeas corpus). 

Neither the state courts' opinions nor the magistrate judge's 

reports and recommendations addressed this argument. It 

is clear, however, that Hess presented this claim to 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 interest 

influenced Ling's decision not to investigate Becker'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 to 

possible conflict of interest where defendant pleaded guilty 

on advice of counsel who also represented a potential 

witness for the prosecution). 

On remand, the district court should first consider

whether Hess's conflict of interest claim was "fairly 

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 petition. 

Landano, 897 F.3d at 668-69. If, however, that claim 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 interest." 

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 minimum 

necessary to ensure that criminal defendants receive 

representation that "puts the government to its proofs in an 

adversarial manner." United States v. Moscony, 927 F.2d 

742, 748 (3d Cir. 1991). When an attorney's representation 

is corrupted by conflicting interests, he or she "breaches 

the duty of loyalty, perhaps the most basic of counsel's 

duties." Strickland, 466 U.S. at 692. In such circumstances, 

the precise impact on the defense is so difficult to measure, 

and the possibility of prejudice so great, that we scrutinize 

the facts differently than in other ineffective assistance of 

counsel cases. Id. 

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Specifically, counsel is ineffective if he or she "actively 

represented conflicting interests" and an actual conflict of 

interest adversely affected the lawyer's performance, Cuyler 

v. Sullivan, 446 U.S. 335, 350 (1980). Unlike the case in 

which a defendant argues only that counsel pursuedflawed 

trial strategies, if the accused shows that an actual conflict 

of interest tainted counsel's performance, we will presume 

prejudice. Strickland, 466 U.S. at 692; United States v. 

Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) ("To reach 

the level of constitutional ineffectiveness the conflict 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.3d 1054, 

1057 n.3 (8th Cir. 1996); Stoia v. United States, 22 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 diverge[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 needs." 

United States v. Pungitore, 910 F.2d 1084, 1140 (3d Cir. 

1990) (citations omitted). To do so, Hess must identify a 

plausible defense strategy that could have been pursued, 

and show that this alternative strategy inherently conflicted 

with, or was rejected due to, Ling's other loyalties or 

interests. See Gambino, 864 F.2d at 1070. Significantly, he 

need not show that the lapse in representation was so 

egregious as to violate objective standards for attorney 

performance. See id. (noting that accused may establish a 

lapse in representation merely by showing counsel rejected 

a defense that "possessed sufficient substance to be a 

viable alternative"). In focusing upon evidence that Becker 

molested the children, it would appear that Hess has 

identified a plausible defense which could have been 

pursued. But Hess also argues that his interests and 

Becker's conflicted, since implicating Becker in the 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) (concluding 

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

representation when firm rejected viable defense strategy of 

shifting blame for murder to its former client); see also 

Moscony, 910 F.2d at 749 (holding that a conflict of interest 

exists where a potential defense would implicate an

attorney's other clients in crimes for which they might later 

be indicted). In addition, if witnesses testified that Thomas 

Becker molested the children after giving them drugs, that 

testimony might have been admissible, subject to the rules 

of evidence, in Becker's trial for drug offenses in which Ling 

was defense counsel. Furthermore, inculpating Becker 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 States v. 

Gambino, supra, does not foreclose a conclusion that Ling's 

performance suffered due to an actual conflict of interest. 

In Gambino, a defense attorney failed to present evidence 

suggesting that the defendant Gambino had been charged 

with possessing heroin that actually belonged to another of 

counsel's clients, Mazzara. This dual representation 

produced no actual conflict of interest, however, because 

the government already possessed the evidence implicating 

Mazzara in illegal drug activity. Thus the attorney never 

had to choose between presenting evidence helpful to 

Gambino's defense and possibly prejudicing Mazzara.

Gambino, 864 F.2d at 1071. By contrast, nothing indicates 

that the police suspected Thomas Becker of child 

molestation. Furthermore, in Gambino, trial counsel did not 

suggest Mazzara was the source of the heroin because he 

believed this argument was so implausible that it would 

undermine the entire defense. Id. at 1071-72. Unlike 

Gambino's attorney, Ling has not testified that implicating 

Becker would be a specious defense; Ling merely stated 

that he did not call Becker as a witness because Becker 

disliked Hess. Even assuming Ling had legitimate reasons 

for not calling Becker to testify, that fact cannot explain his 

decision not to consider other witnesses, notably Thomas 

Hafer, who could have testified that Becker abused the 

victims. 

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IV. 

For the foregoing reasons, we affirm the district court's 

denial of the writ of habeas corpus, insofar as it applies to 

Hess's claim that his representation fell below professional 

standards because counsel failed to call additional

witnesses. The district court, however, did not explore fully 

Hess's claim that his lawyer rejected a defense inculpating 

another client due to an actual conflict of interest, which, 

in turn, may have deprived him of the right to counsel. 

Accordingly, the district court's order of June 5, 1996, is 

vacated in part, and this matter is remanded for further 

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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