                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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

                                 2
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.

                               3
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

                               4
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.

                               5
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

                               6
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.

                               7
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.

                               9
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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