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Fifth Circuit Rules Evidence of Counsel’s Dual Representation of Defendant and Codefendant Results in Possible Actual Conflict of Interest Requires Evidentiary Hearing

by Dale Chappell

In a case where the same lawyer represented two codefendants and advised both to plead guilty, with one fingering the other, evidence showing a possible conflict of interest in counsel’s representation required an evidentiary hearing, the U.S. Court of Appeals for the Fifth Circuit held.

When Emmanuel Harrison and one of his codefendants, Fread Jenkins, pleaded guilty under the advice of the same lawyer, Harrison moved weeks later to withdraw his plea claiming that he was pressured by counsel to plead guilty. Harrison claimed innocence, but the district court refused to hear his claim, saying he provided no evidence to prove any “pressure, threats, or intimidation” by counsel. Harrison was convicted, sentenced, and the Fifth Circuit affirmed his sentence.

In his motion to vacate his conviction under 28 U.S.C. § 2255, Harrison provided two sworn affidavits from Jenkins to support his claim that he was prejudiced personally by the same lawyer who represented Jenkins. The claim was that the lawyer advised Jenkins to plead guilty and point the finger at Harrison for a better deal. Harrison said if he could have pleaded first, he would’ve gotten the better deal.

The magistrate judge hearing the § 2255 motion denied an evidentiary hearing, finding that Harrison provided nothing more than “conclusory” assertions his lawyer had divided loyalties. The district court judge adopted the magistrate’s report and denied a certificate of appealability (“COA”).

On appeal, the Fifth Circuit granted Harrison a COA on the issue of whether the “district court abused its discretion by not holding an evidentiary hearing before denying his claim that he received ineffective assistance of counsel due to a conflict of interest.”  

An evidentiary hearing is required in a § 2255 proceeding unless either “(1) the movant’s claims are clearly frivolous or based upon unsupported generalization, or (2) the movant would not be entitled to relief as a matter of law, even if his factual assertions were true.” United States v. Guerra, 588 F.2d 519 (5th Cir. 1979). Being represented by the same lawyer as a codefendant is not by itself a conflict of interest. But if the dual representation results in an actual conflict of interest that negatively affects the representation, prejudice is presumed, so the defendant doesn’t have to show prejudice. United States v. Culverhouse, 507 F.3d 888 (5th Cir. 2007).

The Court stated that the focus of its analysis is on whether an actual conflict of interest existed and whether an evidentiary hearing could have established such a conflict. The two sworn affidavits submitted by Harrison might not have proved an actual conflict of interest, the Court said, but that evidence “evinces something more than a speculative or potential conflict.” Harrison’s contention that his lawyer pitted his codefendant against him was supported by the affidavits and was enough to require an evidentiary hearing, the Court concluded. Failure to hold such a hearing under these facts constituted an abuse of discretion, the Court ruled.

Accordingly, the Fifth Circuit reversed the denial of Harrison’s § 2255 motion and remanded for further proceedings consistent with its opinion. See: United States v. Harrison, 910 F.3d 824 (5th Cir. 2018). 

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