PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-6092

JACK LAVELTON NICHOLSON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry Coke Morgan, Jr., Senior District Judge.

(CR-01-41; CA-02-793)

Argued: September 20, 2006

Decided: February 2, 2007

Before KING and DUNCAN, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge King wrote the

opinion, in which Judge Duncan and Senior Judge Hamilton joined.

COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant. James Ashford Metcalfe, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Terri J. Harris, LAW OFFICES OF

MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Paul J.

McNulty, United States Attorney, Michael J. Elston, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee.

OPINION

KING, Circuit Judge: 

Petitioner Jack Lavelton Nicholson, a federal inmate serving a sentence imposed in the Eastern District of Virginia, has been awarded

a certificate of appealability (the "COA") on the district court’s denial

of his 28 U.S.C. § 2255 motion for a writ of habeas corpus. See Nicholson v. United States, No. 2:02cv793 (E.D. Va. Oct. 15, 2003) (the

"Opinion").1 The COA, issued by this Court on November 10, 2004,

relates to whether Nicholson’s lawyer had an actual conflict of interest during Nicholson’s sentencing proceedings and presents the question of whether his sentence should be vacated due to the denial of

his Sixth Amendment right to effective assistance of counsel. As

explained below, Nicholson’s lawyer had an actual conflict of interest

when Nicholson was sentenced, and we reverse and remand for a

determination of whether that conflict adversely impacted the performance of his lawyer in Nicholson’s sentencing proceedings. 

I.

A.

Nicholson seeks to vacate his sentence, pursuant to § 2255, on the

basis that his lawyer had an actual conflict of interest and provided

him ineffective assistance of counsel in his sentencing proceedings.

Under § 2255, a petitioner may collaterally attack his sentence and

seek habeas corpus relief if "the sentence was imposed in violation of

the Constitution or laws of the United States . . . ." 28 U.S.C. § 2255.

After a district court has denied a § 2255 motion, the petitioner is not

entitled to pursue an appeal unless he has been granted a COA, see

id. § 2253(c)(1)(B), which may be issued only if the petitioner "has

1The Opinion, dated October 15, 2003, is found at J.A. 256-71. (Citations to "J.A. ___" refer to the Joint Appendix filed in this appeal.) 

2 UNITED STATES v. NICHOLSON
made a substantial showing of the denial of a constitutional right," id.

§ 2253(c)(2). The COA must indicate the specific issue or issues on

which it is granted. See id. § 2253(c)(3). Although Nicholson pursued

several ineffective assistance claims in the district court, he has been

granted a COA on only one issue: "Did an actual conflict of interest

cause [his] counsel to render constitutionally ineffective assistance

when he failed to move for a downward departure?" United States v.

Nicholson, No. 04-6092 (4th Cir. Nov. 10, 2004) (Order granting

COA). Thus, this appeal is limited to an evaluation of that issue. 

In connection with the COA, Nicholson asserts that his lawyer was

operating under an actual conflict of interest at his August 29, 2001

sentencing hearing because, at that time, Nicholson’s lawyer, Jon

Babineau, was representing Nicholson as well as another client,

Lorenzo Butts. Butts had previously threatened to kill Nicholson and

his family, had attempted to kill Nicholson’s brother, and had already

killed Nicholson’s step-father. Nicholson, who was convicted of a

federal offense for his possession of a firearm and ammunition by a

felon, asserts that he carried the handgun to protect himself from

Butts. Nicholson maintains that Babineau, during the sentencing proceedings, failed to request a downward departure based on Nicholson’s need to carry the handgun because, in so doing, Babineau would

have accused his other client (Butts) of uncharged criminal conduct.

Nicholson asserts that an actual conflict of interest thus existed, and

that it adversely affected the performance of his lawyer during the

sentencing proceedings, in contravention of his Sixth Amendment

right to the effective assistance of counsel. 

B.

1.

Nicholson was arrested on January 7, 2001 in Portsmouth, Virginia, on a state charge of possession of a firearm by a felon, after a

police officer found a handgun on his person.2 This charge was even2The facts underlying this appeal are primarily taken from the § 2255

motion and its supporting and opposing affidavits, and other materials

submitted to the district court. The district court did not conduct an evidentiary hearing in this matter, and some allegations of the motion and

affidavits are disputed. The court ruled that the evidence failed to show,

by a preponderance of the evidence, an actual conflict of interest, and it

denied Nicholson’s § 2255 motion. See Opinion 9, 15. 

UNITED STATES v. NICHOLSON 3
tually dropped and replaced by a single federal charge of possession

of a firearm and ammunition by a felon, in violation of 18 U.S.C.

§§ 922(g)(1), 942(a)(2), and (e). Nicholson was indicted by the federal grand jury on March 23, 2001, and he was taken into federal custody on April 3, 2001. 

When the Virginia authorities first arrested Nicholson, he made

statements to the arresting officers that he had obtained the handgun

for his personal protection because he feared a man named Lorenzo

Butts and his associates. These statements included the following: In

early 2000, Nicholson’s brother, Rudolph Nicholson, had agreed to

assist federal officers in their attempts to uncover various criminal

activities of Butts and his associates. Following this arrangement, on

March 3, 2000, Rudolph was shot seven times by Butts’s son, Vito,

in Portsmouth. Although Rudolph survived this vicious attack, an

assassin (dressed as a priest) attempted to enter Rudolph’s hospital

room in Norfolk, Virginia, where he was treated for two months

(while under protective custody) and again tried to kill him. Around

May 2000, Nicholson and his mother, Sandy Nicholson, were

informed by federal officers that Butts had placed a contract on Nicholson’s life, in an endeavor to have him killed and influence his

brother Rudolph. On September 18, 2000, Charles Nicholson,

Rudolph’s father and Nicholson’s step-father, was fatally shot multiple times by two men on a street in Portsmouth. 

After his step-father was murdered, Nicholson obtained a handgun

from a friend and left Portsmouth to stay with a cousin in Alexandria,

Virginia. In early 2001, he returned to Portsmouth to meet with his

probation officer. Nicholson still had the handgun, which did not

work, in his possession. He had it repaired in Portsmouth on January

6, 2001. The next day Nicholson was stopped and searched by Portsmouth police officers, who found the handgun and arrested Nicholson

for the illegal possession of a firearm. 

2.

Following his January 7, 2001, arrest, Nicholson retained attorney

Jon Babineau to represent him on the state charge, and that representation continued over to the subsequent federal charge. According to

Nicholson’s affidavit, he explained to Babineau on several occasions

4 UNITED STATES v. NICHOLSON
that he only had the handgun to protect himself from Butts. Nicholson

told Babineau that he was afraid of Butts because Butts had placed

a contract on his life and had already killed Nicholson’s step-father,

threatened his mother, and attempted to kill his brother. Nicholson’s

mother, according to her affidavit, told Babineau that the only reason

her son carried the firearm was his fear that Butts was going to kill

him, and she also explained to Babineau Butts’s other threatening

actions against her family. 

Babineau, on the other hand, has asserted by affidavit that Nicholson never advised him that he was fearful of Butts. Instead, he asserts

that Nicholson told him that he needed the handgun for protection due

to dangerous situations created by some activities in which he was

involved, but he did not say that he feared he would be harmed by

Butts. Babineau also stated that Sandy Nicholson (Nicholson’s

mother) only spoke with him about his attempts to get her son a

downward sentencing departure for his substantial assistance to law

enforcement — never mentioning Butts or his threats. When

Babineau arranged for federal agents to debrief Nicholson, with a

view toward providing substantial assistance, Nicholson informed the

agents that he did not have any information regarding Butts and was

not sure what Butts looked like. During discovery in the federal prosecution of Nicholson, Babineau received Nicholson’s statements from

the prosecutors. Those statements explain that Nicholson only carried

the handgun for protection against Butts and his associates. 

3.

On November 18, 2000, Butts was arrested by local and federal

authorities in the Eastern District of Virginia on conspiracy, drug distribution, and firearms charges.3

 After a trial in federal court, Butts

was found guilty on April 30, 2001, of multiple offenses. Babineau

did not represent Butts at the trial but, on May 29, 2001, he served

as Butts’s counsel during a preliminary hearing conducted in Virginia

state court on conspiracy, murder, and firearms charges. Both prior to

and during the time Babineau was representing Butts in these state

3Nicholson apparently continued to carry his handgun after Butts and

several of his associates had been arrested. The parties dispute, however,

whether Nicholson knew that Butts was in custody at that time. 

UNITED STATES v. NICHOLSON 5
proceedings, Babineau was representing and advising Nicholson on

whether he should accept a proposed plea agreement from the Government on Nichsolson’s federal indictment.4

 Babineau never

informed Nicholson that he was also representing Butts on state criminal charges, nor did Babineau seek Nicholson’s consent to represent

both clients during the same time frame. On May 1, 2001, the Government offered a plea agreement to Nicholson, and a plea hearing

was scheduled for May 23, 2001. On May 22, 2001, Babineau

informed the prosecutors that Nicholson had decided not to plead

guilty at the scheduled hearing, but that Babineau believed Nicholson

would eventually plead guilty. 

On June 6, 2001, Nicholson pleaded guilty to the federal offense

of possession of a firearm and ammunition by a felon, in violation of

§§ 922(g)(1), 942(a)(2), and (e). His guilty plea was tendered without

a plea agreement, because Nicholson would not agree to waive his

right of appeal. During the Rule 11 plea colloquy, the Government

acknowledged that it was reasonable to believe that someone might

try to injure or shoot Nicholson. After Nicholson’s plea proceedings,

Butts terminated his initial counsel (Thomas Shuttleworth) in his

ongoing federal proceedings and, on June 22, 2001, notified the district court that Babineau was his lawyer. Babineau then received the

Presentence Investigation Report on Butts (the "Butts PSR"), which

contained information implicating Butts in Rudolph’s shooting and

the murder of Nicholson’s step-father. It also stated that Butts’s "hit"

list included Nicholson. On July 23, 2001, Nicholson’s Presentence

4During the period leading up to his federal plea proceedings, Nicholson and Babineau discussed going to trial and seeking to interpose the

affirmative defense of necessity. Babineau informed Nicholson that, in

order to assert a successful necessity defense, he would have to testify

at trial. Babineau further explained that, if Nicholson chose to testify, he

would be subject to cross-examination on his prior criminal history.

Nicholson asserts that Babineau, who was representing Butts during at

least part of this time, discouraged Nicholson from pursuing a necessity

defense because, in order to prove the defense, Babineau would have

implicated Butts in additional uncharged criminal conduct. Nicholson

also asserted an ineffective assistance claim in this regard. The district

court’s Opinion determined that this contention was not a valid claim.

We did not award Nicholson a COA on this specific issue, and

Babineau’s advice on the necessity defense is not a subject of this appeal.

6 UNITED STATES v. NICHOLSON
Investigation Report (the "Nicholson PSR") was issued, and it pointed

out that Nicholson had advised the authorities that he carried the

handgun for protection because he feared an individual who was trying to harm him. 

On July 24, 2001, Babineau served as Butts’s counsel at his sentencing proceedings in the Eastern District of Virginia. He also served

as Butts’s lawyer on his appeal to this Court, which was filed on July

31, 2001. As part of that appeal, Babineau maintained, inter alia, that

the district court had erred by admitting trial evidence of Butts’s prior

bad acts, including evidence of the attempted murder of Rudolph and

the murder of Nicholson’s step-father. See United States v. Butts, No.

01-4606 (4th Cir. Nov. 18, 2002). 

4.

The sentencing hearing for Nicholson was conducted in the district

court on August 29, 2001. During the hearing, Babineau sought a

downward departure under section 5H1.4 of the Sentencing Guidelines because of Nicholson’s health, which the district court denied.5

At the hearing, the prosecutors advised the court that certain individuals were trying to kill Nicholson at the time of his arrest. Nicholson

explained to the court that he only carried the handgun to protect himself from the persons who had killed his step-father and had attempted

to kill his brother. Babineau, however, did not mention any of the circumstances surrounding Nicholson’s arrest, nor did he request a

downward departure based on the self-defense necessity of Nicholson

carrying the handgun. At the conclusion of the hearing, the court

adopted the Nicholson PSR, accepting the recommendation of a base

offense level of 30 with a criminal history category of VI. This placed

Nicholson in the Guidelines range of 168-210 months. The statutory

minimum for Nicholson’s offense, however, was 180 months, and the

court sentenced him to 189 months.6

5Nicholson had been diagnosed with sickle cell amenia when he was

a child and testified at the sentencing hearing that he is typically hospitalized for the disease five or six times a year. 

6Based on his criminal history, Nicholson was sentenced as an armed

career criminal under 18 U.S.C. § 924(e). Because he was deemed to be

an armed career criminal, Nicholson faced a mandatory minimum of 180

months and a maximum of life. 

UNITED STATES v. NICHOLSON 7
5.

Nicholson thereafter appealed the district court’s denial of a downward departure based on his poor health. His sentence was affirmed

by our unpublished opinion of June 10, 2002. See United States v.

Nicholson, 36 Fed. Appx. 151 (4th Cir. 2002). On June 6, 2003, Nicholson filed his § 2255 motion in the Eastern District of Virginia,

claiming ineffective assistance of counsel. By its Opinion of October

15, 2003, the court, without conducting a hearing, denied relief. See

Opinion 15. In so ruling, the district court concluded that Babineau’s

simultaneous representation of Butts and Nicholson did not create an

actual conflict of interest because Babineau was not representing

Nicholson and Butts in cases arising from the same set of circumstances. See id. at 9. The court further concluded that, even if there

was a conflict of interest, any necessity defense interposed by Nicholson at trial would have been unsuccessful. See id. at 13. The court did

not address whether it would have been objectively reasonable for

Babineau to seek a downward sentencing departure based on necessity and self-defense.7

Nicholson applied for a COA on December 4, 2003, and, on

November 10, 2004, we granted the COA on whether an actual conflict of interest caused Babineau to render constitutionally ineffective

assistance when he failed to move for a downward departure in Nicholson’s sentencing. We possess jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253.8

7The COA issue was asserted by Nicholson in the district court. See

Pet. Mem. in Supp. of Mot. to Vacate, Set Aside, or Correct Sentence

Pursuant to 28 U.S.C. § 2255 ¶ 62. His § 2255 motion focused primarily,

however, on Babineau’s advice concerning the assertion of the affirmative defense of necessity in a trial. 

8Nicholson sought, in his opening brief, to expand his COA. We

denied this request on June 27, 2005. Prior to oral argument of this

appeal, Nicholson submitted a Rule 28(j) letter and then a Supplemental

Motion to Accept Attachments to Appellant’s Reply Brief, the attachments being a Virginia ethics opinion and a timeline of events. We grant

the motion to accept attachments with respect to the Virginia ethics opinion, but deny the motion with respect to the timeline of events. We deny

as moot the Government’s motion to strike Nicholson’s Rule 28(j) submission. 

8 UNITED STATES v. NICHOLSON
II.

In general, in an appeal relating to the denial of a § 2255 motion,

we review a district court’s legal conclusions de novo. See United

States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004). Because the district court denied relief without a hearing, it was not able to make

findings of fact on disputed factual issues. Although the court did not

characterize its disposition of this matter as either a dismissal or an

award of summary judgment (but simply as a denial of § 2255 relief),

it did weigh and consider the affidavits and other materials submitted

by the parties. Thus, its ruling was in the nature of a summary judgment award to the Government.9

 In reviewing an award of summary

judgment, we review the facts in the light most favorable to the nonmoving party, which, in this appeal, is Nicholson. See Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 377 F.3d 408, 418 (4th Cir.

2004). We review de novo any mixed questions of law and fact

addressed by the district court on whether the petitioner has established a valid Sixth Amendment ineffective assistance claim. See

Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997) ("Whether

counsel’s performance was constitutionally adequate is a mixed question of law and fact which we review de novo." (internal quotation

marks omitted)). 

III.

In support of his COA, Nicholson contends that the district court

erred in concluding that Babineau’s simultaneous representation of

Butts and Nicholson, as spelled out above, did not create any actual

conflict of interest, and thus did not result in Nicholson being provided with constitutionally ineffective assistance. The Sixth Amendment guarantees an accused the right to effective assistance of

counsel, see Strickland v. Washington, 466 U.S. 668, 686 (1984), and

an essential aspect of this right is a lawyer "unhindered by conflicts

of interest." Mickens v. Taylor, 240 F.3d 348, 355 (4th Cir. 2001) (en

banc), aff’d, 535 U.S. 162 (2002); see also Cuyler v. Sullivan, 446

U.S. 335, 348-50 (1980). In general, to prevail on an ineffective assis9

In its Opinion, the district court characterized Nicholson’s claim as a

civil action, in which he was obliged to establish his allegations by a preponderance of the evidence. See Opinion 4. 

UNITED STATES v. NICHOLSON 9
tance claim, a petitioner must establish (1) that his lawyer’s performance was deficient by showing that his performance fell below an

objectively reasonable standard, and (2) that his deficient performance prejudiced the petitioner’s case. See Strickland, 466 U.S. at

687; see also Mickens, 240 F.3d at 355. 

We have recognized that, as a general proposition, "[t]he effective

performance of counsel requires meaningful compliance with the duty

of loyalty and the duty to avoid conflicts of interest, and a breach of

these basic duties can lead to ineffective representation." United

States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991). When a petitioner

premises his ineffective assistance claim on the existence of a conflict

of interest, the claim is subjected to the specific standard spelled out

in Cuyler v. Sullivan, 446 U.S. 335 (1980), instead of that articulated

in Strickland. See Strickland, 466 U.S. at 692. To establish that a conflict of interest resulted in ineffective assistance, "[m]ore than a mere

possibility of a conflict . . . must be shown." Tatum, 943 F.2d at 375

(emphasis removed). The petitioner must show (1) that his lawyer

was under "an actual conflict of interest" and (2) that this conflict "adversely affected his lawyer’s performance." Sullivan, 446 U.S. at 348.

If the petitioner can show an actual conflict, and that it adversely

affected his lawyer’s performance, prejudice is presumed and there is

no need to demonstrate a reasonable probability that, but for the lawyer’s conflict of interest, the trial or sentencing outcome would have

been different. See Sullivan, 446 U.S. at 349-50. In evaluating and

applying these principles, we recognize that an adverse effect is not

presumed from the existence of an actual conflict of interest. See

Mickens, 240 F.3d at 360. That said, we assess each of the two prongs

of the Sullivan test in turn, that is, (1) whether Babineau had an actual

conflict of interest, and (2) whether that conflict adversely affected

Babineau’s performance in Nicholson’s sentencing proceedings. 

A.

Nicholson first contends that the district court erred in concluding

that there was no actual conflict of interest when Babineau simultaneously represented both Nicholson and Butts. To establish an actual

conflict of interest, Nicholson "must show that [his] interests diverged

with respect to a material factual or legal issue or to a course of

action." Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir. 1998) (en banc)

10 UNITED STATES v. NICHOLSON
(internal quotation marks omitted); see also Tatum, 943 F.2d at 376

(concluding that actual conflict of interest exists when lawyer is

required to "account to two masters" or when lawyer fails to take

action on behalf of one client because it would adversely affect

another). 

By its Opinion, the district court determined that Babineau was not

operating under an actual conflict of interest, because he was not representing "both defendants or potential defendants in an action arising

from the same set of circumstances or transactions." Opinion 9. The

court determined that Babineau was not required to attack the innocence of one client in order to serve the other, as Butts was not facing

any charges related to having contracted for the killing of Nicholson.

See id. The court also reasoned that Nicholson was never in the position of having to testify against Butts, nor Butts against Nicholson,

and that Nicholson and Butts never had any direct contact with each

other. See id.

Contrary to the district court’s ruling, Babineau’s representation of

Nicholson and Butts created an actual conflict of interest. Although

Nicholson and Butts were not charged with offenses arising out of the

same set of circumstances, Nicholson’s interests, on the one hand, and

Butts’s interests, on the other, were in total opposition to each other

during Babineau’s simultaneous representation of them. On this

record, Nicholson and his mother each advised Babineau that the only

reason Nicholson carried the handgun was to protect himself from

Butts and his associates. Importantly, Babineau had received and

knew, through Nicholson’s statements to police officers (which

Babineau had secured in the federal discovery proceedings relating to

Nicholson’s indictment), that Butts had placed a "hit" on Nicholson,

that Butts had attempted to kill Nicholson’s brother, and that Butts

had murdered Nicholson’s step-father. 

Furthermore, the Butts PSR discussed the involvement of Butts in

the attempted murder of Nicholson’s brother and the murder of Nicholson’s step-father. That PSR, which was made available to Babineau

in connection with his representation of Butts, also revealed that Butts

had put out a "hit" on Nicholson. In addition, at the time of Nicholson’s sentencing, Babineau was preparing to contend in Butts’s

appeal to this Court that the evidence of violence against Nicholson’s

UNITED STATES v. NICHOLSON 11
family had been improperly admitted at Butts’s trial. If Babineau had

pursued a downward departure motion based upon Nicholson’s necessity to carry the handgun for self defense, he would have been obliged

to assert that Nicholson’s fear of Butts was real. See U.S.S.G.

§ 5K2.12 ("If the defendant committed the offense because of serious

coercion, blackmail or duress, under circumstances not amounting to

a complete defense, the court may decrease the sentence below the

applicable guideline range . . . . Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of

physical injury . . . ."). In so doing, Babineau would, in seeking a

downward departure for Nicholson, necessarily have accused his

other client, Butts, of uncharged criminal conduct. 

It is clear to us that Babineau’s actions were in contravention of the

applicable ethical standards. When Babineau undertook his representation of Nicholson, it had been established that "[d]efense counsel

have an ethical obligation to avoid conflicting representations . . . ."

Sullivan, 446 U.S. at 346. And the Virginia Rules of Professional

Conduct prohibit a lawyer from representing a client if that representation would affect the interests of another client. See Va. Rules of

Prof’l Conduct 1.7(b). A lawyer can only avoid such a conflict, and

continue representation, if (1) the lawyer reasonably believes that he

would be "able to provide competent and diligent representation to

each affected client," (2) "the representation is not prohibited by law,"

(3) "the representation does not involve the assertion of a claim by

one client against another client represented by the lawyer in . . . other

proceedings before a tribunal," and (4) each client consents in writing.

Id. The Virginia rules make it clear that "[l]oyalty to a client is also

impaired when a lawyer cannot consider, recommend or carry out an

appropriate course of action for the client because of the lawyer’s

other responsibilities or interests. The conflict in effect forecloses

alternatives that would otherwise be available to the client." Va. Rules

of Prof’l Conduct 1.7(b) cmt. 8. 

In responding to a hypothetical situation posed by Nicholson’s current counsel, the Virginia State Bar Standing Committee on Legal

Ethics has opined that "the defense attorney in this hypothetical had

an impermissible conflict of interest in representing these two defendants . . . ." Va. State Bar Standing Comm. on Legal Ethics, Informal

12 UNITED STATES v. NICHOLSON
Op. 1796 (2004).10 Based on the factual scenario presented to the

Committee, it concluded that nothing in the facts could have supported a lawyer’s belief that his representation of one client would not

have adversely affected his representation of the other. See id.11

10Although this ethics opinion is not binding on us, it is worthy of consideration and is entitled to such weight, if any, we desire to accord it.

See Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145,

149-50 (1968) (recognizing that Rules of American Arbitration Association and Canons of Judicial Ethics are not binding authority, but that they

are "highly significant"). The Virginia Bar’s opinion is consistent with

the conclusion we have reached, and it demonstrates that the appropriate

legal ethics body of the Commonwealth of Virginia is in substantial

agreement with our view. We deem the opinion to be of some significance, but not as binding authority. 

11The hypothetical set of facts presented to the Committee by Nicholson’s lawyer are substantially similar to those underlying this appeal, and

they were recited by the Committee as follows: 

You have presented a hypothetical situation involving a defense

attorney defending two criminal defendants in separate cases.

Defendant #1 retained the attorney to represent him on a charge

of possession of a firearm as a convicted felon in state court.

Defendant #1 told the police at the time of his arrest that he had

a gun solely to protect himself from Defendant #2, who had shot

his brother, murdered his step-father, and placed a contract on

Defendant #1’s life. The state weapons charge was dismissed

against Defendant #1. He was then charged with a federal weapons charge for the same firearm. Defendant #1 again hired the

attorney for the federal case. Defendant #2 then hired that same

attorney to represent him in state court on charges of first degree

murder, abduction, conspiracy to commit murder, possession of

a firearm by a convicted felon, and use of a firearm in the commission of a felony. Defendant #1 told the attorney he did not

want to plead guilty to the firearms charge because he had the

gun solely to protect himself from Defendant #2. The case was

set for trial. The attorney reviewed discovery materials which

identified Defendant #2, his client, as the person Defendant #1

feared. The attorney did not disclose to either client or either

court that he represented both Defendant #1 and #2. The attorney

persuaded Defendant #1 to plead guilty, forego raising the selfdefense issue, and forego implicating Defendant #2. Defendant

UNITED STATES v. NICHOLSON 13
Even assuming that Babineau reasonably believed that he could

adequately represent both Nicholson and Butts, his simultaneous representation of both defendants necessarily placed him in the position

of having to make claims against Butts in order to pursue a downward

departure motion, on the basis of self-defense necessity, in Nicholson’s sentencing hearing. Thus, Babineau had to "pull his punches"

at Nicholson’s sentencing hearing in order to avoid accusing his other

client, Butts, of uncharged criminal conduct. Although Babineau had

an ethical duty to fully inform Nicholson of his representation of

Butts, he failed to do so. Babineau, in representing Nicholson, was

thus in the untenable position of having to place the interests of one

client (either Butts or Nicholson) above another (either Nicholson or

Butts) at Nicholson’s sentencing hearing. Babineau was thus impaired

by an actual conflict of interest in the context of those proceedings.

B.

Finally, Nicholson contends that Babineau’s conflict of interest

adversely affected his performance in Nicholson’s sentencing hearing.12

#1 was sentenced to fifteen years imprisonment. Defendant #2

was sentenced to 105 years imprisonment. The attorney accepted

the court appointment to represent Defendant #1 in his appeal;

he again did not disclose to clients or the court that he represented each of these defendants. Defendant #1’s conviction and

sentence were affirmed. 

Va. State Bar Standing Comm. on Legal Ethics, Informal Op. 1796

(2004). 

12The Government maintains that there was no adverse impact on

Nicholson because it was not objectively reasonable for Babineau to

move for a downward departure, as Nicholson’s minimum Guidelines

sentence was already lower than the statutory minimum. Nicholson,

however, was required to move for a downward departure prior to the

court’s final sentencing decision and, at that time, the Nicholson PSR’s

recommendation was merely that — a recommendation. Furthermore,

Babineau actually moved for a downward departure based on another

theory (Nicholson’s health situation). Although a motion for a downward

departure on self-defense necessity may have proven futile, the advancement of that theory, along with the presentation of supporting evidence,

may have convinced the court to sentence Nicholson to the statutory

minimum instead of, as imposed, nine months above the minimum. 

14 UNITED STATES v. NICHOLSON
To establish an adverse effect, a § 2255 petitioner must satisfy, by a

preponderance of the evidence, a three-part standard. See Mickens,

240 F.3d at 361. He must, first of all, "identify a plausible alternative

defense strategy or tactic that his defense counsel might have pursued." Id. Second, he must establish that "the alternative strategy or

tactic was objectively reasonable under the facts of the case known

to the attorney at the time of the attorney’s tactical decision." Id. In

order to satisfy this second prong, "the petitioner must show that the

alternative strategy or tactic was ‘clearly suggested by the circumstances.’" Id. (quoting Tatum, 943 F.2d at 376). Lastly, he must show

that "the defense counsel’s failure to pursue that strategy or tactic was

linked to the actual conflict." Id. In establishing these three aspects of

this test, the petitioner is not required to show that the strategy or tactic not taken would have been successful, but only that it would have

been objectively reasonable. See id.

We have recognized that "much of the adverse effect inquiry is

heavily fact dependent," and we are thus obliged, on appellate review,

to defer to a habeas court’s findings of fact. Mickens, 240 F.3d at 360.

In this situation, however, the habeas court did not conduct a hearing

and resolve the disputed factual contentions. It also did not reach and

address whether Babineau’s conflict adversely affected his performance in Nicholson’s sentencing proceedings, when Babineau failed

to move for a downward departure for self-defense necessity.13 Thus,

there are material factual issues yet to be addressed and determined

13The district court, in its Opinion, considered whether Babineau’s

advice to Nicholson to forego a self-defense necessity defense at trial,

and instead plead guilty, created an adverse effect on Babineau’s performance. See Opinion 10-13. The Government suggests that the court’s

conclusion that the necessity defense would have been unsuccessful indicates that a motion for downward departure would have also been unsuccessful. This position is unsound for at least two reasons. First, however,

Nicholson does not have to show that the motion for a downward departure would have been successful, but rather that it would have been

objectively reasonable for such a motion to be made. See Mickens, 240

F.3d at 360. Second, the standard for a downward departure based on

self-defense necessity at sentencing is not as stringent as the standard for

the necessity affirmative defense at trial. See U.S.S.G. § 5k2.12 (providing that downward departure can be granted when circumstances do not

amount to successful affirmative defense). 

UNITED STATES v. NICHOLSON 15
in this case. In these circumstances, we are obliged to remand for a

determination and assessment of the relevant facts, and for such other

and further proceedings as may be appropriate. 

IV.

Pursuant to the foregoing, we reverse the district court’s ruling that

an actual conflict of interest did not exist, and remand for a determination on whether Babineau’s conflict adversely impacted his performance in Nicholson’s sentencing proceedings. 

REVERSED AND REMANDED

16 UNITED STATES v. NICHOLSON