1 Perillo raised many other issues below. However, she briefed only the ineffective assistance

of counsel issue. She attempted to incorporate by reference her district court habeas corpus petition.

This is insufficient to preserve err o r. Therefore, all other issues are waived on appeal. Y ohey v.

Collins , 985 F.2d 222, 224-45 (5th Cir. 1993). UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-20759

PAMELA LYNN PERILLO,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, Director, Texas Department

of Criminal Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

March 21, 1996

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Pam Perillo was found guilty of murder and sentenced to death by a Texas court. She filed

a federal petition for writ of habeas corpus, 28 U.S.C. § 2254, asserting that her conviction was

wrongful because her attorney was simultaneo usly representing a key prosecution witness. 1 The

federal district court refused to allow any discovery or an evidentiary hearing and granted summary

judgment denying the writ. Perillo now appeals the dismissal of her habeas corpus petition. Finding

that the di st rict co urt erred in refusing to allow discovery and to hold an evidentiary hearing, we2 While the crime resulted in the death of two men, Robert Banks and Bob Skeens, Perillo was

only tried and convicted for the murder of Skeens. A detailed statement of the facts in this case is

found in the Texas Court of Criminal Appeals decision affirming Perillo's Texas conviction. P erillo

v. State , 758 S.W.2d 567 (Tex. Crim. App. 1988), cert. denied , 492 U.S. 925 (1989).

3 Robert Pelton was originally appointed to represent Perillo at her second trial. Skelton was

appointed as P elt o n's co-counsel in November 1983, because he was familiar with the facts of the

case through representing Fletcher. Perillo's counsel at her first trial was William Burge; Skelton had

no involvement in that first trial and Fletcher did not testify.

2 reverse the judgment of the district court and remand the case for appropriate discovery and an

evidentiary hearing.

I. BACKGROUND

Perillo was initially convicted of capital murder and sentenced to death in 1981 for her part

in the murders of Robert Banks and Bob Skeens. After that conviction was reversed due to an error

during voir dire, Perillo v. State

, 656 S.W.2d 78 (Tex. Crim. App. 1983), she was convicted a second

t ime in 1984 and again sentenced to death. 2 Two other people, Linda Fletcher and Mike Briddle,

were also involved in the same murders. Fletcher was initially charged with capital murder for killing

Banks and Skeens. However, the state later lowered the charge to aggravated robbery. Fletcher was

convicted of aggravated robbery and sentenced to five years probation; she has never been tried for

the murders of Banks or Skeens. Briddle was convicted of capital murder and sentenced to death.

He has since been executed by the State of Texas.

Jim Skelton was Perillo’s attorney during her second trial. 3 Skelton had also been Fletcher’s

attorney in 1980 when she was indicted for the capital murder of Banks and Skeens, and he continued

to represent her during her trial for aggravated robbery. When Fletcher later testified against Briddle

at his trial, Skelton, as her attorney

, negotiated "use immunit y" for her, which meant that nothing she

said during her testimony in the Briddle trial could be used against her. E x Parte Shorthouse

, 640

S.W.2d 924, 928 (Tex. Crim. App. 1982). The state, however, was free to try her using information

it already possessed.

On October 19, 1984, the judge in Perillo's case issued a subpoena to compel Fletcher, who

was living in California, to return to Texas and testify in Perillo's second capital murder trial. Fletcher3

would not voluntarily return to Texas, so a hearing was set in Californi a to determine whether

Fletcher would be forced to return. Fletcher called Skelton and asked him to come to California. On

November 5, 1984, the first day of testimony in Perillo's case, Skelton traveled to California to

represent Fletcher in her attempt to avoid the subpoena.

The record is silent as to what happened in California. The only thing we know for certain

is that after Skelton flew to California to represent Fletcher, she was granted transactional immunit y

for the murders of Skeens and Banks and she returned to Texas to testify. This means that she can

never be prosecuted for their murd ers. S horthouse

, 640 S.W.2d at 928. After she was granted

transactional immunit y, the California court order Fletcher to return to Texas to testify against Perillo.

Perillo was convicted and sentenced to death.

II. THE NEED FOR DISCOVERY AND EVIDENTIARY HEARING

A. Discovery and Evidentiary Hearing

When there is a "factual dispute, [that,] if resolved in the petitioner's favor, would entitle [her]

to relief and the state has not afforded the petitioner a full and fair evidentiar y hearing," a federal

habeas corpus petitioner is entitled to discovery and an evidentiary hearing

. Ward v. Whitley , 21

F.3d 1355, 1367 (5th Cir. 1994), cert. denied , 115 S. Ct. 1257 (1995); see Young v. Herring

, 938

F.2d 543, 560 (5th Cir. 1991), cert. denied

, 503 U.S. 940 (1992); Rule 6 of the Rules Governing §

2254. Ho wever, the discovery and evidentiary hearing are limited to the factual dispute; we have

made clear that Rule 6 "does not authorize fishing expeditions." W ard

, 21 F.3d at 1367. A habeas

petitioner must make specific allegation s; "co nclusory allegations unsupported by specifics," or

"contentions that in the face of the record are wholly incredible" will not entitle one to discovery or

a hearing. Blackledge v. Allison , 97 S. Ct. 1621, 1629 (1977).

Perillo sought both discovery and an evidentiary hearing during her federal h abeas corpus

proceeding, but both were denied. The district court erred because Perillo alleged that Skelton was

representing Fletcher in California, creating an actual conflict of interest that adversely affected his

representation of her. As discussed below, this is a factual dispute which, if resolved in her favor,4 Perhaps Skelton’s actions in the habeas proceeding should not be surprising, given the tone

of his affidavits. Rather than merely denying that he labored under a conflict, Skelton instead chose

4 would entitle her to relief an d t here are no state factfindings on the issue that are entitled to the

presumption of correctness.

In her habeas corpus petition, Perillo alleges that "Skelton represented Fletcher in California

in a hear ing t o resist the State's subpoena for Fletcher to testify at Ms. Perillo's trial as the chief

prosecution witness. Later, d uring Ms. Perillo's trial

, Skelton f lew t o California to explain to

Fletcher the legal proceedings in which she would testify against Ms. Perillo." (emphasis in original).

In addition, Perillo provided an affidavit from Carolyn Clause Garcia (then an attorney in

private practice in Houston) who stated that "[d]uring the pendency of the second Perillo trial, Jim

Skelton flew to California to represent Linda Fletcher in matters regarding the State's subpoena for

[Fletcher’s] appearance and testimony. I thought it odd and an additional conflict of interest for

[Skelton] to be involved in the representation of Fletcher in any fashion under the circumstances."

Skelton himself admits that he represented Fletcher at her hearing in California. He stated in

his first affidavit that he "represented Ms. Fletcher

. . . in the California hearing to resist the Texas

subpoena for Ms. Fletcher to testify against Ms. Perillo." Contrary to the State’s assertions, Skelton

never withdrew or corrected his statement that he represented Fletcher in California.

The period of time when Skelton was in California is a black-hole; we have no information

about what happened at the h earing. There is no evidence of who negotiated the immunity for

Fletcher and exactly what role, if a ny, Skelt o n had in the hearing. There is no transcript from the

California hearing. The evidence is limited to (1) Skelton’s affidavits in the state habeas proceeding,

none of which squarely address the issue of his conduct in California, and (2) his statement at trial

that he went to California at Fletcher’s request. Perillo has not had the opportunity to depose or

cross-examine Skelton. Perillo has not been able to depose or cross-examine Fletcher. Perillo has

not even been able to get Fletcher’s affidavit. We find it disturbing that Perillo’s chief obstacle in

obtaining information from Fletcher is her own trial counsel, Skelton. 4 When Perillo’s habeas counselto mock Perillo’s habeas case, saying:

Had we done what Perillo suggests and succeeded in convincing the jury that

Linda was a lying California bitch who tugged on the rope with Perillo, this

would not have helped with the major stumbling block in Perillo’s case

-- her

confession.

5 While the evidentiary hearing and discovery will be limited, we think that it will be helpful

if the parties also explore whet her Fletcher gave any confidential information to Skelton when he

represented her.

5 sought information from Fletcher in 1992, they were informed that Skelton was representing her and

t hat all communications must be through him. Despite repeated requests, no meeting was ever

allowed and Perillo’s counsel have never interviewed Fletcher. Therefore, Perillo has brought forth,

as best she can, facts supporting her allegation that Skelton had a conflict of interest that adversely

affected her.

Perillo is entitled to an evidentiary hearing where she can examine Skelton and Fletcher and

find out what happened in California. This should not be a wide-ranging fishing expedition, but a

brief adversarial hearing concerning a discrete time period. 5 We express no view on what conclusion

should be reached once such a hearing is held.

B. Presumption of Correctness

When a state court has made findings of fact after a full and fair hearing, federal habeas corpus

courts grant those factfindings a presumption of corr ect ness and do not relitigate those facts. 28

U.S.C. § 2254. However, not all items contained in the findings of fact are questions of fact entitled

to the presumption of correctness. Certain issues, including determinations about the effectiveness

of counsel's assistance, involve mixed questions of law and fact, and are reviewed de novo. K och v.

Puckett

, 907 F.2d 524, 527 (5th Cir. 1990); Carter v. Collins

, 918 F.2d 1198, 1202 (5th Cir. 1990).

However, even if an issue is a mixed question of law and fact, state court background factfindings

are subject to the deference requirement of § 2254(d). Carter

, 918 F.2d at 1202. See S trickland v.

Washington , 466 U.S. 668, 698 (1984); Loyd v. Smith , 899 F.2d 1416, 1425 (5th Cir. 1990). Of6 The state habeas court did not actually make specific background findings concerning Skelton’s

representation. Instead, the court merely recited the facts that the Court of Criminal Appeals

considered in making its finding of no conflict or adverse effect. The habeas court said the Court of

Criminal Appeals considered,

Skelton's p rio r representation of Linda Fletcher; the lack of any

at t o rney client relationship between her and Skelton at the time she

testified; the fact that Fletcher at the time of her testimony had other,

independent counsel advising her; the personal friendship which had

developed between Fletcher and Skelton , including the fact that

Skelton had flown to California to attend her wedding.

To the extent that these can be considered implicit background factfindings, they do not address the

issue of Skelton’s representation of Fletcher in California when Perillo’s trial was in progress, or his

failure to aggressively cross-examine Fletcher at trial, the im p ortance of which we discuss in Part

III(B)(2).

It is possible that the Court of Criminal Appeals factfindings on direct appeal can qualify as

§ 2254(d) findings of fact. M ay

, 955 F.2d at 312. However, the Texas Court of Criminal Appeals

did not make specific findings regarding Skelton's conduct in California. The only findings relevant

to the conflict of interest issue is the Court of Criminal Appeals' finding of no

actual conflict and no adverse effect. But, as discussed earlier, these are mixed questions of law and

fact, which are reviewed de novo and are not entitled to the presumption of correctness. K och

, 907

F.2d at 527.

6 course, if the state habeas court did not make factfindings on an issue, the federal habeas court is free

to examine the issue unconstrained. A rmstead

, 37 F.3d 202, 209 (5th Cir. 1994), cert. denied

, 155

S.Ct. 1709 (1995).

The state habeas corpus court found that there was "no conflict between Skelton and Perillo

and no adverse effect upon Perillo's case." Those findings are mixed questio ns o f law and fact;

therefore, they are subject to de novo review and are not entitled to any presumption of correctness.

The state habeas corpus court did not make any background findings about what h a ppened in

California and Skelton’s involvement, if any, in that hearing. 6 Therefore, on this issue, there are no

factfindings entitled to a presumption of correctness.

Moreov er, even if there had been state court factfindings on this issue, they would not be

entitled to the presumption of correctness. State court habeas factfindings are presumed correct only

when there has been a full and fair hearing. 28 U.S.C. § 2254(d); A rmstead

, 37 F.3d at 207. A full

and fair hea ring do es not necessarily mean a live hearing. In the proper circumstances, we have7 Paper hearings are hearings where the state judge did not hear live testimony, but instead

relied on affidavits.

7 afforded the presumption of correctness to "paper hearings." 7 Id

. at 207. However, "it is necessary

to examine in each case whether a paper hearing is appropriate to the resolution of the factual dispute

underlying the petitioner's claim." May v. Collins , 955 F.2d 299, 312 (5th Cir. 1992).

In Nethery v. Collins

, 993 F.2d 1154, 1157 n.8 (5th Cir. 1993), cert. denied

, 114 S. Ct. 1416

(1994), we held that, because the st at e habeas judge was not the judge at the state trial, the paper

hearing was not an a dequate and fai r heari ng. In A rmstead

, we found that a paper hearing was

adequate because, "[u]nlike the scenario in Nethery

, the trial judge in Armstead's case who made the

factual finding with regard to the conflicting affidavits via the 'paper hearing' was the same judge who

presided over Armstead's guilty plea. The judge had the opportunity to fully assess Armstead during

his plea process and determine his credibility then." A rmstead

, 37 F.3d at 208. S ee Vuong v. Scott

,

62 F.3d 673, 683-84 (5th Cir.) (same judge

-- paper hearing accorded presumption of correctness),

cert. denied

, 116 S. Ct. 557 (1995); Amos v. Scott

, 61 F.3d 333, 347 (5th Cir.) (same judge

-- paper

hearing accorded presumption of correctness), cert. denied

, 116 S. Ct . 557 (1995); S awyers v.

Coll i ns

, 986 F.2d 1493, 1505 (5th Cir.) (same judge

-- paper hearing accorded presumption of

correctness), cert. denied , 113 S. Ct. 2405 (1993).

In the instant case, the judges were different. The judge in Perillo's second capital murder trial

was the Honorable Woody Densen, while the state habeas corpus judge was the Honorable Curt F.

Steib. Judge Steib conducted only a paper hearing in the habeas corpus proceeding. Because the

judge in the state habeas corpus proceeding was not the trial judge, he could not "compare the

information presented in the various affidavits against his own firsthand knowledge of the trial." May

,

955 F.2d at 314. We do not suggest that a full and fair hearing cannot be had any time the state

habeas judge is different from the trial judge. In our case-by-case review, the identity of the judges

is but one factor to consider, as we explained in Nethery

, 993 F.2d at 1157 n.8. In this case, Judge

Steib could not supple ment t he affidavits with his own recollection of the trial and Skelton's8

performance in it. Thus, there is a danger of "trial by affidavit." A mos

, 61 F.3d at 347. Therefore,

t he findings o f fact in the state habeas corpus proceeding are not entitled to the § 2254(d)

presumption of correctness.

III. CONFLICTS OF INTEREST

To determine whether Perillo is entitled to an evidentiary hearing, we must also determine

whether her claim that she received ineffective assistance of counsel, if true, would entitle her to

relief. Ward , 21 F.3d at 1367.

The Sixth Amendment guarantees a defendant the right to counsel. This right includes the

right to an attorney who is not "burdened by an actual c onflict of interest." S trickland v.

Washington

, 466 U.S. 668, 692 (1 984). Normally, to prove ineffective assistance of counsel, a

peti t io ner must prove (1) that his attorney’s representation fell below an objective standard of

reasonableness and (2) that he was prejudiced. I d

. at 687; Beets v. Scott

, 65 F.3d 1258, 1272-73 (5th

Cir. 1995) ( en banc ), petition for cert. filed (Dec. 18, 1995) (No. 95-7279). In order to prove that

he was prejudiced, a peti t io ner must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” S trickland

, 466 U.S.

at 694. This is known as the Strickland standard.

W e apply a different standard, however, in cases where an attorney’s representation of

mult iple clients created a conflict of interest. Instead of Strickland

, we apply the more lenient Cuyler

standard. Cuyler v. Sullivan , 446 U.S. 335 (1980); Beets at 1265. To prevail on a C uyler claim,

a petitioner need only show that his attorney labored under an actual conflict which adversely affected

his lawyer's performance. C uyler

, 446 U.S. at 348; Beets , 65 F.3d at 1277; Nealy v. Cabana , 782

F.2d 1362, 1364 (5th Cir.), cert. denied , 479 U.S. 819 (1986). The reasoning behind this policy is

clear: when an attorney represents two clients with opposing interests, the attorney cannot serve both

clients adequately. “Counsel can properly turn in no direction. He must fail one or do nothing and

fail both. An attorney cannot properly serve two masters.” B eets v. Scott

, 65 F.3d at 1270 (internal

quotations and citations omitted).9

A. Actual Conflict

An "actual confl

ict " exists when an attorney represents two clients whose interests in the

outcom e of a matter are different. U nited States v. Moore

, 37 F.3d 169, 173 (5th Cir. 1994); United

States v. Carpenter

, 769 F.2d 258, 263 (5th Cir. 1985); Mitchell v. Maggio

, 679 F.2d 77, 79 n.4 (5th

Cir.) (citations omitted), cert. denied

, 459 U.S. 912 (1982). We have found actual conflict when one

client would benefit by a person testifying and one client would be harmed by it. N ealy

, 782 F.2d at

1364. "The petitioner must specifically identify instances in the record that reflect that his counsel

made a choice between p o ssible alternative courses of action such as eliciting (or failing to elicit)

evidence helpful to one client but harmful to the other." U nited States v. Mers

, 701 F.2d 1321, 1328

(11th Cir.), c ert. denied

, 464 U.S. 991 (1983); United States v. Fox

, 613 F.2d 99, 102 (5th Cir.

1980).

Skelton apparently represented Fletcher in California in her attempts to avoid being forced

to testify in Texas. At the same time, he also represented Perillo in her attempts to stop Fletcher from

being forced to testify in Texas. At first glance, there would seem to be no actual conflict between

Fletcher's and Perillo's interests (and therefore, no possible Cuyler violation). Perillo did not want

Fletcher to testify and, at least wh en first subpoenaed, Fletcher did not want to testify. In fact,

Fletcher went so far as to call Skelton and ask him to come to California to help her avoid testifying

.

However, while Fletcher may not have wanted to testify init ially, it later became in her interest to do

so. Once the offer of transactional immunity was on the table, Fletcher would benefit from testifying.

With only use immunit

y from the Briddle trial, Fletcher could still be prosecuted for the murders; with

transactional immunity she could not. Therefore, by accepting the offer of immunity and testifying

against Perillo, Fletcher would be in a better position than she would have been by not testifying. As

Fletcher's attorney, Skelton had a duty to advise her of her options. He had a duty to tell Fletcher

that she would improve her legal situation by accepting the immunit y and testifying against his other

client, Perillo.8 Skelton flew to California for the hearing on Monday, November 5, 1984, the first day of

testimony in Perillo's trial. Fletcher testified on Wednesday, November 7, 1984.

10 Skelton's representation of Fletcher was concurrent with his representation of Perillo. Skelton

left Perillo's trial during the State's case in chief and flew to California to represent Perillo. Then, only

two days later, Fletcher came to testify against Perillo. 8

While Skelton might have gone to California with the purest of motives and with an intention

to keep Perillo’s interests in mind, the offer of transactional im munit y fo r Fletcher changed the

situation. After the State of Texas offered Fletcher transactional immunity, Fletcher’s and Perillo’s

interests diverged. If Skelton recommended to Fletcher that she do what was best for her (accept the

immunit y and testify), he would hurt Perillo. Yet, if he honored Perillo’s interests and told Fletcher

to rejec t any deal and refuse to testify, he would hurt Fletcher. This is the exact type of situation

where a lawyer “can properly turn in no direction.” B eets

, 65 F.3d at 1270. It is clear that Skelton

labored under an actual conflict of interest.

B. Adverse Effect

While 

### Strickland requires a showing of actual prejudice, that is, that the result of the

trial probably would have been different, United States v. Greig

, 967 F.2d 1018, 1024 (5th

Cir. 1992). Cuyler

merely requires that the petitioner show only "adverse effect," a lower

threshold. T o prove adverse effect, a petitioner need not show that the conflict changed the

outcome of the trial. Nealy , 782 F.2d 1365. "Once it has been established that an actual

conflict exists, prejudice to the defendant must be presumed." M itchell v. Maggio

, 679 F.2d

77, 79 (5th Cir.), cert. denied

, 449 U.S. 912 (1982). The error cannot be considered harmless,

except in the most extraordinary circumstances. I d

. In B eets

, we characterized this standard as a

“not quite per se rule of prejudice.” Beets , 65 F.3d at 1269 (internal quotation omitted).



### In Beets , we had occasion to revisit the conflict of interest area. The e n banc court

decided that multi-party representation conflicts ( that is, where an attorney has a conflict9 

### T he Beets majority opinion, written by Judge Jones, held that Strickland rather

than Cuyler

applied in the particular circumstances of that case. In an alternative holding,

which was not adopted by a majority of the court, Judge Jones argues that even if C uyler

applied, there was still no showing of adverse effect. S he received only five votes out of

thirteen for that proposition. Judge King’s dissent and Judge Higginbotham’s concurrence

rejected Judge Jones’ attempt to raise the adverse effect hurdle. Therefore, a majority of the

en banc court believed that the Cuyler adverse effect test was met in Beets

.

11 

### between two clients) are the only situations where the more lenient Cuyler standard applies.

The Beets court, however, did not alter our law as to what constitutes adverse effect. 9 

### We

have said before that to establish adverse effect, a petitioner need onl y show that his

attorney's judgment was fettered by concern over the effect of that decis ion on the other

client's case. N

ealy v. Cabana , 782 F.2d 1362, 1365 (5th Cir. 1986). In Nealy , we found

adverse effect because "[t]he lawyer who represented [two clients] was torn in his loyalty

and unable to make a decision purely in the interest of o ne client to whom he owed

undivided allegiance." Nealy at 1366.

In Beets , Judge King said that "[t]o establish an adverse effect on the basis of what

an attorney failed to do, a defendant must demonstrate that som e plausible alternative

defense strategy or tactic

-- `a viable alternative'

-- might have been pursued." B eets

, 65 F.3d

at 1288 (King, J., dissenting). Other circuits have expressed the standard similarly. U nited

States v. Rodriguez

, 929 F.3d 747, 751 (1st Cir. 1991) (the petitioner "must demonstrate that

some plausible alternative defense strategy or tactic might have been pursued."); Church v.

Sullivan

, 942 F.2d 1501, 1512 (10th Cir. 1991) (adverse effect when "a speci fic and

seemingly valid or genuine alternative strategy was available to defense counsel, but it was

inherently in conflict with his duties to others.") (internal quotations omitted); W inkler v.

Kleane

, 7 F.3d 304, 309 (2d Cir. 1993) (a petitioner "must demonstrate that some plausible

defense strategy or tactic might have been pursued.") (internal quotations omitted), cert.

denied

, 114 S. Ct. 1407 ( 1994); U nited States v. Gambino

, 864 F.2d 1064, 1070 (3d Cir.1 0 C A L

. P ENAL C ODE §§ 1334 et seq. (U NIFORM A CT TO S ECURE THE A TTENDANCE OF W ITNESSES

FROM W ITHOUT A S TATE IN C RIMINAL P ROCEEDINGS (1974)). For a California court to enforce an

out of state subpoena, the party see king the subpoena must obtain a certificate from the state trial

judge which states that (1) there is a criminal prosecution pending in the court; (2) a person within

12 

### 1988) (a petitioner "must demonstrate that some plausible defense strategy or tactic might

have been pursued."), c ert. denied

, 492 U.S. 906 (1989); see Beets

, 986 F.2 d at 1490

(Higginbotham, J., special concurring). Following the approach of our sister circuits, we

hold that to show adverse effect, a petitioner must demonstrate that some plausible defense

strategy or tactic might have been pursued but was not, because of the conflict of interest.

In this case the re are two distinct ways in which Skelton’s simultaneous representation of

Perillo and Fletcher adversely affected his representation of Perillo. First, Skelton could have taken

actions to keep Fletcher from testifying. Second, Skelton could have aggressively cross-examined

Fletcher, attempting to impeach her testimony. While we cannot predict whether these tactics would

have been successful, the outcom e is not determinative. W hat matters is that Skelton's simultaneous

representation of Fletcher and Perillo foreclosed viable options. Perillo was adversely affected.

1. Fletcher’s Return to Texas

Skelton's simultaneous representation in California of Fletcher and Perillo fettered his

discretion. If Skelt o n had represented only Perillo at the California hearing, he could have made

arguments to keep Fletcher from being returned to Texas to t est ify. The subpoena hearing in

California was one of the most important events surrounding Perillo's trial, because it was there that

the decision that Fletcher would have to testify was made. This decision proved fatal to Perillo

because, as the Texas Court of Criminal Appeals recognized, Fletcher provided the damaging details

that allowed the jury to answer the special punishment issues in favor of death. P erillo

, 758 S.W.2d

at 572.

The hearing in California on Fletcher's returning to Texas to testify was not a mere formality:

the State of Texas had to prove that Fletcher was a material an d necessary witness. 1 0 There werethe state [California] is a mat erial witness in that prosecution," and (3) his or her presence will be

required for a specified number of days. C AL

. P ENAL C ODE § 1334.2. At a hearing, the judge will

determine if (1) the witness is material and necessary; (2) whether requiring the witness to testify in

the other state will cause him or her under hardship; and (3) whether the laws of the other state will

protect the witness from arrest and service of civil and criminal process. Id

.

13 grounds upon which Skelton representing Fletcher could have fought the subpoena. Texas had to

show that Fletcher was a material and necessary witness. Because Fletcher did not testify at Perillo's

first trial and Perillo was still found guilty and sentenced to death, it could certainly be argued that

Fletcher was not material and necessary to th e St at e's case against Perillo. Additionally, Skelton

could have appealed the decision of the California court.

Perillo does not need to prove that the result of the trial would have been different absent the

conflict

-- this is not a Strickland case. Perillo only needs to show that the actual conflict adversely

affected her. Perillo was adversely affected by her attorney representing the State's star witness

against her in a proceeding to retur n the witness to testify, especially when it was in the witness'

interest to testify.



### 2. Skelton’s Cross-Examination of Fletcher

The Court of Criminal Appeals said that:

Fletcher's direct testimony was most damaging to [Perillo], not only as

it pertained to the question of guilt, but also as it related to the special

punishment issues, particularly future dangerousness. Other than

testimony from two California police officers that [Perillo's] reputation

there for peaceableness was bad, in this cause the State would present

no new evidence at the penalty stage bearing on this issue. Fletcher's

testimony was undeniably sus ceptible to interpretation as

demonstrating in appellant's attitude both before and after commission

of the offense a most `calculated and cold-blooded' bent. I t was imperative that [Skelton] neutralize the effect o f that testimony, if he

could . (Emphasis added.)

Perillo , 758 S.W.2d at 572 (internal citations omitted).

Faced with the decision of how to neutral i ze Fletcher’s testimony, Skelton did not

choose to attack her credibility and impeach her as a witness. The Court of Criminal1 1 Skelton did not perform much better when Fletcher was being directly examined by the

State. Skelton did not object even once to her testimony.

12 In her federal habeas petition, Perillo alleged that:

(a) Skelton failed to mention or adduce evidence that at the time of her arrest, Fletcher

had blood on her jeans. This evidence would have shed doubt on Fletcher’s credibility and

on the veracity of her statements that she did not participate in the crime for which Ms. Perillo

was tried.

(b) Skelton failed to point out to the jury that Ms. Perillo turned Fletcher in t o t he

police, giving F let cher a motive for incriminating Ms. Perillo. This evidence would have

impeached Fletcher’s testimony.

(c) Skelton failed to impeach Fletcher’s inconsistent testimon y that Fletcher told

Denver police that the last time she saw Banks he let her off on the freew ay and that as far

as she knew, Banks was alive and well

. Fletcher’s statement substantially conflicts with her

testimony at Ms. Perillo’s trial. The inconsistent statement, presented at

Briddle’s trial, would have shed doubt on Fletcher’s credibility.

(d) Skelton failed to elicit testimony that the only fingerprints identified in the entire

trial were Fletcher’s. By failing to identify the fingerprint match, Skelton prejudiced the jury

against Ms. Perillo by suggesting they were her fingerprints instead of Fletcher’s.

(e) Skelton incriminated Ms. Perillo by elicit ing test i mony from Fletcher regarding Ms.

14 

### Appeals i t self recognized that Skelton's cross-examination of Fletcher was not rigorous. 11



### Perillo v. State

, 758 S.W.2d 567, 572 (Tex. Crim. A pp. 1988). Rather, Skelton chose to

portray both Fletcher and Perillo as victims, manipulated by the evil Briddle.

The district court held that “Skelton’s decision not to engage in impeachment or

rig orous cross-examination of Fletcher at Perillo’s trial was a reasonable trial strategy

supported by sound professional judgment.” However, this is the wrong legal standard. The

proper question is whether some plausible defense strategy or tactic might have been

pursued, but was not, because of the conflict of interest. Supra III(B).

Skelton had another plausible defense strategy that he could have used: he could have

attacked Fletcher’s credibility and attempted to impeach her testimony. In her petition,

Perillo identifies at least

six particular items which Skelton could have used to impeach

Fletcher. 12 

### This aggressive strategy could have led the jury to believe at least two things:Perillo’s alleged participation in a variety of extraneous offenses.

(f) Skelton protected Fletcher from a r igo ro us cross-examination by reviewing his

cross-examination with Fletcher prior to her testimony.

(Emphasis in original; internal citations omitted).

15 

### (1) Fletcher’s role in the murder was not as passive as she implied and (2) Fletcher held a

grudge against Perillo because it was Peril lo’s confession that caused her arrest. This

certainly could have led the jury to discount Fletcher’s tale about Perillo’s cruelty and coldheartedness. Impeaching Fletcher might not have gotten Perillo acquitted, but, the trial was

not about guilt, it was about punishment. With Perillo’s confession, the only real issue in

the trial was whether

Perillo would be sentenced to death. Impeaching Fletcher certainly

could have caused the jury to answer “No” on the special punishment issues, especially the

one about future dangerousness. The Court of Criminal Appeals noted that the only real

evidence the State presented on future da n gerousness came from Fletcher. P erillo

, 758

S.W.2d at 572.

We must remember that under Cuyler the issue is not what was the best strategy, but

whether there was a plausible defense strategy that might have been pursued but was not,

because of the conflict of interest. It is difficult to believe that impeaching the star state

witness would not be a plausible defense strategy.

Impeaching Fletcher was a plausible defense strategy, but Skelton’s representation of

her precluded him from adopting it. Instead, he chose the only strategy consistent with his

dual representation of Fletcher and Perillo. Skelton’s duty of loyalty to Fletcher stopped him

from consid ering a strategy that involved aggressively attacking Fletcher’s credibility.13 We are disturbed by what is an uncontroverted fact in the habeas record, i.e. that upon her

return to Texas to testify in Perillo's second trial, Fletcher stayed at the hom e of Skelton the night

before her testimony was given. Skelton and the State attempted to rationalize the propriety of this

conduct on the basis of the "friendship" which developed between Fletcher and Skelton when Skelton

represented Fletcher in her aggravated robbery trial and which was later evidenced by Skelton going

to California to "give Fletcher away" at her second marriage. But that rationalization simply confirms

the reality of the conflict of interest position in which Skelton placed himself.

16 

### Skelton’s plan of making Fletcher and Perillo appear sympathetic “was not a free choice of

strategy. It was the only course open.” F oxworth v. Wainwright

, 516 F.2d 1072, 1079-80

(5th Cir. 1975). 13

IV. CONCLUSION

Perillo is claiming that her Sixt h Amendment right to counsel was violated because her

attorney at her capital murder trial, Jim Skelton, had an actual conflict of interest. Perillo sought

discovery and an evidentiary hearing at the federal district court, but they were denied.

In order to be entitled to discovery and an evidentiary hearing, a federal habeas corpus

petitioner must show (1) that there is a factual dispute that, if resolved in the petitioner's favor, would

entitle him to relief and (2) the State has not afforded the petitioner a full and fair evidentiary hearing.

The state habeas corpus court did not make any factfindings relevant to Perillo's conflict of interest

claim. Even if any factfindings were made, they were not the product of a full and fair evidentiary

hearing. Perillo has shown that there is a factual dispute about Skelton's representation of bot h

Fletcher and Perillo during the time of F l etcher's subpoena hearing in California. If the dispute is

resolved in Perillo's favor, she is entitled to relief because Skelton's actions created an actual conflict

that adversely affected Perillo. Therefore, the district court erred in not allowing discovery and an



### evidentiary hearing. The judgment of the district court is VACATED and the case is

REMANDED for appropriate discovery and an evidentiary hearing. We reiterate that we do

not mean to suggest to the district court, what result it should reach on remand, following the

hearing.17



### GARWOOD, Circuit Judge, concurs in the result.