Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-0286-SVW. Stephen V. Wilson, District Judge, Presiding.
Before: Stephen Reinhardt, Thomas G. Nelson, Circuit Judges, and Frank A. Kaufman, Senior District Judge.*fn* Part I of the opinion by Senior District Judge Kaufman; Part II by Judge Reinhardt. All members of the court join in all three parts of the opinion.
KAUFMAN, Senior District Judge, delivered Part I of the opinion of the court.
REINHARDT, Circuit Judge, delivered Part II of the opinion of the court.
Sheldon Sanders appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Sheldon*fn1 was convicted in a second trial in the Superior Court of Los Angeles County, California, of second-degree murder*fn2 and of illegal use of a firearm,*fn3 after his first trial in that court had resulted in a hung jury. Sheldon, in the federal district court below, asserted that he had received ineffective assistance of counsel in violation of his Sixth Amendment rights. U.S. Const. amend. VI. The district court, adopting the Report and Recommendation of a U.S. Magistrate Judge, denied petitioner's writ. Thereafter, Sheldon appealed to this Court. Because his attorneys during both trials were faced with impermissible conflicts of interest, which adversely affected their representation of Sheldon, we remand the within case to the district court with directions to issue the writ of habeas corpus sought by Sheldon.
This case arises from the murder of Norman Gregory on July 11, 1985, in Compton, California. Although the events of that day have been, to some extent, obscured by conflicting accounts and the passage of time, the following rather clear picture has emerged.*fn4
In 1985, Kelvin Sanders, Sheldon's brother, was estranged from his wife, Reynetta Gregory Sanders. As a result of that estrangement, Reynetta resided at the Gregory family residence with her brother, Norman, among others. On the morning of July 11, 1985, Kelvin Sanders was at the Gregory residence, apparently having spent the previous night there. At approximately 10 a.m., Sheldon arrived to pick up Kelvin. Sheldon was driving a burgundy BMW which belonged to his sister, Sheree, but which Xavier, another brother, apparently often drove. Sometime prior to the departure of Sheldon and Kelvin, they became embroiled in an altercation with two of Reynetta's brothers, Norman and David Gregory. Though none of the combatants suffered any injury, a stone allegedly thrown by one of the Gregory brothers struck and cracked the windshield of the BMW.
Shortly after those events occurred, Reynetta received two brief telephone calls from Kelvin warning her to leave the house. Presumably in response to the warnings, she dressed her children and went next door. Reynetta testified that, approximately fifty minutes after Sheldon had departed the Gregory residence, and twenty minutes after she had left that residence to go to a neighbor's home, she heard a loud "bang" outside and ran out of that neighbor's house into the street.
At the same time, Norman, David and Terrell Gregory, along with their friends, William Thomas and Darryl Anderson, all of whom had been inside the Gregory residence, ran to the front door and crowded around the doorway to observe what had happened. The outside, wooden front door was open. As they peered out at the street through a second, inner, screened and barred security door, they observed a man standing in the street with a rifle. The witnesses in the doorway disagree as to whether the man fired two or three shots from the rifle. There is no doubt, however, that one of the gunshots fatally wounded Norman Gregory, entering the back of his neck and exiting his left jaw. He died a few days later.
When first interviewed by the police, one of the four surviving witnesses who had been standing at the door, Terrell Gregory, identified the assailant as "Zuba," a nickname for Xavier Sanders. A second witness, Darryl Anderson, initially informed police that the guilty party was "Kake," a nickname for Sheldon; however, the next day Anderson told the police that "Zuba" was the shooter. Another witness, David Gregory, consistently has identified Sheldon as the perpetrator. A fourth witness, William Thomas, first told the police that the assailant was "Kake," but later stated to the police that he was not sure who had fired the fatal shot. Reynetta Sanders, who seems to have possessed an unobstructed vantage from the property of one of the neighbors of the Gregorys, originally told police that the assailant was Xavier, not Sheldon, although she later testified at both trials that she saw Sheldon with the rifle. All of the other witnesses also testified at the trials that Sheldon was the man who they saw fire the shots.
Sheldon was arrested at his parents' home on July 12, 1985. Xavier, informed that the police were looking for him as well, then hired attorney Mark Bledstein, paid an agreed retainer to Bledstein, and confided to Bledstein that he, Xavier, not Sheldon, had shot Norman Gregory and that, at the time of the shooting, he was accompanied by Sheldon and Kelvin. Bledstein advised Xavier to report to the police but to assert his Fifth Amendment rights and to refuse to divulge any information. Upon Xavier's release from custody and the decision of the police not to press charges against him, Bledstein assumed representation of Sheldon. Apparently, Bledstein informed Xavier that the retainer already paid by the latter would be considered by Bledstein as paid to Bledstein on behalf of Sheldon. Sheldon, as well as his mother and his father, assumed responsibility for subsequent fees to be paid to Bledstein during the course of the latter's representation of Sheldon.
Prior to the first trial, Xavier's mother informed Bledstein that Xavier told her, on the night of the shooting, that he (Xavier) had shot Gregory. During Sheldon's first trial, Bledstein subpoenaed Xavier to testify but, according to Xavier, when he arrived at the courthouse, Bledstein advised him to "take the Fifth" despite Xavier's expressed willingness to testify that he, not Sheldon, had shot Norman Gregory. The trial resulted in an evenly split jury, a mistrial was declared, and a second trial was scheduled.
After the mistrial, Sheldon's parents dismissed Bledstein and retained Philip Jefferson*fn5 to represent Sheldon during the second trial. Bledstein provided Jefferson, inter alia, with the police reports which Bledstein had received in discovery in preparation for the first trial. Prior to the second trial, Regina Sanders, who is Sheldon and Xavier's mother, came with Xavier to Jefferson's law office. She informed Jefferson of Xavier's confession to her and of his willingness to talk with Jefferson about his shooting of the victim. Subsequently, during the second trial, Xavier came to the courtroom, purportedly ready to testify that he had fired the fatal shot, but, upon being instructed by Jefferson to leave, Xavier departed without testifying.
In connection with the second trial, Jefferson pursued three defenses on behalf of Sheldon. First, he offered alibis to show that Sheldon was not at the scene of the crime. Second, he contended that the shot which had killed Norman Gregory was fired from inside the Gregory house, not from the street where witnesses placed Sheldon and his brother, Xavier. Lastly, relying on conflicting accounts of eyewitnesses who variously had identified Xavier or Sheldon as the shooter, Jefferson claimed that Xavier, not Sheldon, shot Gregory.
The juries, during the first and second trials, never had the opportunity to hear Xavier testify and never learned of Xavier's statement to his mother on the night of the shooting that he was the shooter. At the close of the second trial, the jury convicted Sheldon of second-degree murder and illegal use of a firearm. Thereafter, Sheldon was sentenced to seventeen years to life.
After the second trial, the Sanders family discharged Jefferson and retained a third attorney, Leslie Abramson. Abramson unsuccessfully filed a petition for habeas corpus relief in the Superior Court of Los Angeles County, California. The Judge sitting in that court, who subsequently served as the referee in a later evidentiary hearing, denied relief to Sheldon. On appeal, the California Court of Appeal, while ultimately affirming the denial of state habeas corpus relief, ordered the appointment of a referee to take evidence and to make findings concerning competency of counsel. The Judge (referee) then appointed a new attorney, Rowan Klein, to represent Sheldon in the ensuing evidentiary proceeding. Jefferson, whose conduct formed the principal focus of the hearing, was unavailable to testify.*fn6 Klein introduced a tape-recorded conversation between Xavier and Klein, in which Xavier admitted that he (Xavier) had fired the rifle. Xavier, who testified in person, repeated during that hearing most of the information conveyed on that tape but refused to answer questions as to whether he had fired the gun.
Upon the Conclusion of the hearing, the referee found no tangible evidence of incompetence of counsel or prejudice and denied the state habeas corpus petition. The California Court of Appeal, in a lengthy opinion, adopted the referee's findings and affirmed the judgment by a vote of 2 to 1, over a forceful, and in this Court's view, a very convincing Dissent. The California Supreme Court denied review.
On January 17, 1991, Sheldon filed a federal habeas corpus petition in the court below, pursuant to 28 U.S.C. § 2254. U.S. Magistrate-Judge King conducted an evidentiary hearing on February 19, 1992, after repeated unsuccessful attempts by Klein and an investigator to locate Jefferson. In his federal petition, Sheldon contends that he was not afforded effective assistance of counsel due to Jefferson's failure to speak with Xavier or to seek to introduce Xavier's testimony at trial, failure to obtain a transcript of the first trial and have the same available for use during the second trial, failure to perform other tasks expected of reasonably competent counsel, and Jefferson's alleged conflict of interest.
Magistrate-Judge King, in his Report and Recommendation filed July 17, 1992, determined that Sheldon had failed to demonstrate deficient performance by counsel, or prejudice resulting from any such deficiency, or conflict of interest. Specifically, the magistrate Judge wrote that he was convinced "to a reasonable certainty that Xavier would not have testified even if called," and noted that in his view the "Court of Appeal's decision that . . . [Regina Sanders' testimony regarding Xavier's confession] was inadmissible under state law is determinative of our inquiry." The magistrate Judge concluded that petitioner had "failed to show that the state courts would have admitted" either the mother's testimony concerning what Xavier had told her, or a recorded statement by Xavier had one been obtained by Jefferson. Accordingly, the magistrate Judge recommended denial of Sheldon's federal habeas corpus quest for relief.
On August 31, 1992, the district court adopted the "findings, Conclusions, and recommendations" of the report of the magistrate Judge and dismissed Sheldon's action on the merits. Sheldon then filed a timely notice of appeal to this Court.
Federal appellate courts review grants or denials of habeas corpus relief de novo. E.g., Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986). In a federal habeas action, a claim of ineffective assistance of counsel, and/or of conflict of interest on the part of counsel, presents "mixed questions of fact and law" and receives de novo review. See Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 249, 109 S. Ct. 260 (1988); Reiger, 789 F.2d at 1427-28. Of course, "state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of [28 U.S.C.] 2254(d)," Strickland, 466 U.S. at 698, and are presumed to be correct unless they fall within one of the eight exceptions listed in 28 U.S.C. § 2254(d).*fn7 Likewise, a federal district court's findings and its adoption of the findings of a federal ...