Badger v. Hendricks

287 F. App'x 178
CourtCourt of Appeals for the Third Circuit
DecidedApril 18, 2008
DocketNo. 05-4691
StatusPublished

This text of 287 F. App'x 178 (Badger v. Hendricks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Badger v. Hendricks, 287 F. App'x 178 (3d Cir. 2008).

Opinions

OPINION

TUCKER, District Judge.

James P. Badger appeals the Order of the U.S. District Court for the District of New Jersey, denying his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. In his habeas petition, Badger alleges, inter alia, that his appellate counsel’s prior representation of a former co-defendant adversely affected counsel’s performance and thereby deprived him of his right to effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution. Upon review of the state court record, the District Court de[180]*180termined that Badger had failed to establish an actual conflict of interest and denied his habeas petition. We affirm.

I. BACKGROUND

On May 80,1991, the Cumberland County Prosecutor’s Office indicted Badger for the murder, assault, and robbery of Benjamin Taybago. Also charged in the indictment were Frank Johnson (Badger’s brother-in-law), Patricia Badger-Johnson (Badger’s sister and Johnson’s wife), and Anthony Burton. On August 29, 1991, Johnson pled guilty to aggravated manslaughter and robbery pursuant to a plea agreement. Johnson also gave a statement to the police, which exonerated Badger-Johnson and Burton. The charges against Badger-Johnson and Burton were subsequently dismissed on the government’s motion.

At Badger’s trial, which took place on July 14-17, 1992, Johnson testified as the only eyewitness to the crime. Johnson testified that he entered Taybago’s home and distracted him, while Badger entered from the rear. He further testified that Badger attacked the victim, Taybago, before taking money, jewelry, and other items. Other witnesses presented corroborating circumstantial evidence. On July 17, 1992, Badger was convicted of murder, robbery, unlawful possession of a weapon, and felony murder, and was later sentenced to an aggregate term of fifty years with a forty-year parole bar.

After Badger was convicted, Johnson moved for reconsideration of his sentence. The government did not oppose the motion. Johnson, who was originally sentenced to an aggregate term of thirty years imprisonment with a ten-year parole bar for his involvement in the murder and robbery, was resentenced to an aggregate term of twenty years with a seven-year parole bar.

On December 4, 1992, Badger filed a Notice of Appeal with the New Jersey Superior Court, Appellate Division. His direct appeal was handled by Attorney Linda Lawhun, who had previously represented his sister, Badger-Johnson, in the Taybago murder and robbery case in which Badger was convicted. During the direct appeal proceedings, Lawhun moved the state appellate court for a temporary remand on the grounds that Badger had obtained newly discovered evidence which would serve as the basis for a motion for new trial. The new evidence was of an alleged secret pretrial agreement between the trial prosecutor and Johnson, which was previously undisclosed in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The alleged secret agreement was to be evidenced by (1) Johnson’s untimely application for and receipt of a reconsideration and reduction of his sentence without objection by the state; (2) the dismissal of charges against all of the individuals who served as witnesses for the state; and (3) Johnson’s desire to recant his testimony against Badger in that he had testified falsely to obtain his wife’s, Badger-Johnson’s, release from jail.

After dispensing with several of Badger’s other claims on the merits, the state appellate court remanded the case for an evidentiary hearing on the motion for new trial based on the alleged Brady violation.1 At the hearing, Johnson recanted his trial testimony and stated that he had falsely testified at trial in order to “get the time off [for] me and my wife.” Johnson later [181]*181entered a guilty plea to perjury charges arising out of his testimony at the evidentiary hearing.

The other witnesses at the evidentiary hearing on Badger’s motion for new trial included Robert Luther, the First Assistant Prosecutor who handled the Taybago case; Harry Leszchyn, Jr., Johnson’s counsel; and the Honorable Rushton Ridgway, the judge who presided over Johnson’s resentencing. Judge Ridgway testified that there were no irregularities in Johnson’s resentencing and Leszchyn denied any knowledge of or participation in any secret agreement. The prosecutor, Luther, denied the existence of any secret agreement between his office and Johnson for Johnson’s reduced sentence and Badger-Johnson’s release from jail. Moreover, Luther maintained that Johnson had no idea that the charges would be dismissed against his wife before he gave the statement implicating Badger. Lawhun cross-examined all of the government’s witnesses but did not call to the stand her former client, Badger-Johnson, or any of the witnesses who she claimed received benefits from the government in exchange for their testimony at trial. Lawhun did not advise the court that she had previously represented Badger-Johnson nor was any objection to her representation voiced by Badger. The state court determined that no Brady violation had occurred and denied Badger’s motion for new trial.

On November 30, 1994, shortly after the court denied the motion for new trial, Lawhun wrote to Badger regarding the prosecutor’s testimony at the hearing, stating: “In light of Mr. Luther’s testimony concerning Pat’s release from jail, you may prefer to have me as a potential witness rather than an attorney. I was as surprised by Mr. Luther’s denial of an agreement about Pat as you were.” Lawhun further stated, “You could have the Public Defender’s Office handle the appeal” and requested that Badger inform her of how he wished to proceed. There is no evidence of a response from Badger; however, Lawhun subsequently prepared appellate documents on Badger’s behalf.

Lawhun both filed an appeal of the court’s denial of Badger’s motion for new trial, which the state appellate court affirmed, and prepared the initial post conviction pleadings. Lawhun later terminated her representation of Badger when she became a prosecutor in the Cumberland County Prosecutor’s Office, the same office that was still handling Badger’s case. Badger retained new counsel, Stephen B. Patrick, who filed the brief and appendix to Badger’s motion for post-conviction relief, which was ultimately denied. Badger later obtained other counsel.

Prior to filing Badger’s appeal of the denial of post-conviction relief, Badger’s new counsel, Charles P. Savoth III, contacted Lawhun regarding an alleged conflict of interest arising from her successive representation of Badger-Johnson and Badger. Savoth asked Lawhun to review her files to refresh her recollection as to the basis for her suggestion that she might better serve as a witness for Badger. Lawhun did not produce her file, nor did she provide information to Savoth as to why she made the statements in her letter, expressing difficulty in recalling the reasons why she had made those statements and authored a letter to that effect.

On appeal of the lower court’s denial of post-conviction relief, Badger claimed that Lawhun had a conflict of interest which adversely affected her performance both at the evidentiary hearing on Badger’s motion for new trial and on direct appeal.

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