Mountjoy v. Cunningham CV-00-018-JD 05/11/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Keith Mountjoy
v. Civil No. 00-18-JD Opinion No. 2000 DNH 117 Michael J. Cunningham, Warden New Hampshire State Prison
O R D E R
Keith Mountjoy, proceeding pro se, petitions for habeas
corpus relief, pursuant to 28 U.S.C.A. § 2254, from his
incarceration for sentences imposed after his conviction on
charges of burglary and aggravated felonious sexual assault. The
petitioner raises three issues in support of his petition:
violation of his right to conflict-free representation due to the
state trial court's failure to inquire of him about the disclosed
conflict; ineffective assistance of his appellate counsel in
failing to brief a claim that his trial counsel represented him
under an actual conflict of interest; and a due process violation
caused by delay in his appeal. The respondent has answered the
petition. Since the petitioner has not requested a hearing and a
hearing does not appear to be required, the petition may be
addressed on the present record.1 See Habeas Corpus Rule 8.
1The state courts' factual findings are presumed to be correct since the petitioner has not challenged the findings with Background
The petitioner was tried three times on charges of burglary
and aggravated felonious sexual assault and was represented by
attorney Stephen Jeffco in each proceeding. The jury deadlocked
on both charges in the first two trials. During an in-chambers
conference before the third trial. Attorney Jeffco informed the
trial judge that he was then representing one of the state's
witnesses in an unrelated matter. The petitioner was not present
during the conference. Jeffco told the court that he had
informed the petitioner of the other representation and that the
petitioner had consented to continue to be represented by Jeffco.
Neither Jeffco nor the prosecutor believed that the other
representation caused a conflict of interest with his
representation of the petitioner.
Dennis Pratte, the witness represented by Jeffco, was the
town police officer who had responded to the scene of the crime
from which the charges against the petitioner arose. Pratte
participated in the investigation of the crime and in the arrest
of the petitioner. Jeffco represented Pratte on charges of
clear and convincing evidence. See 28 U.S.C.A. § 2254(e) (1) The petitioner has not suggested that any additional factual development is necessary to present his claims. See § 2254(e)(2); Williams v. Tavlor, ___ U.S.__ , 2000 WL 385364 (Apr. 18, 2000).
2 felonious sexual assault of his stepdaughter, a matter unrelated
to the charges against the petitioner. At the time of the
petitioner's third trial, Pratte was awaiting trial on the
charges. It does not appear that the court or the petitioner was
aware of the nature of the charges against Pratte before or
during the petitioner's trial.
Pratte testified at the petitioner's third trial, as he had
at the first two trials. As the first officer at the scene of
the crime, Pratte testified that the victim told him that she had
no idea who had attacked her. Pratte's testimony was important
to the defense because the victim later identified the
petitioner, who lived in the same apartment building, based on
recognizing his voice. Jeffco questioned Pratte about his
investigation of the crime in the same manner as he had in the
first two trials when Jeffco did not represent Pratte. The
petitioner was found guilty on both charges on April 15, 1994.
On May 23, 1994, the petitioner, proceeding pro se, filed a
motion for judgment of acquittal on the ground that his counsel
had operated under a conflict of interest. A hearing was
scheduled for June 14, 1994, on the petitioner's motion. On June
8, 19 94, the court appointed public defender Andrew Schulman to
represent the petitioner during post-trial proceedings and the
hearing was continued to give Schulman time to prepare. In
3 February of 1995, Schulman filed a motion to set aside the
verdict, raising issues of the court's failure to inquire into
Jeffco's conflict of interest and ineffective assistance of trial
counsel based on the conflict. A hearing was held on the
petitioner's motions on August 10, 1995, and on August 22, 1995,
the court issued an order denying the relief requested. The
petitioner's notice of appeal was filed in September of 1995, and
after the appeal was accepted, a brief was filed on behalf of the
petitioner on April 1, 1996. The state sought and was granted an
extension of time and filed its brief on June 16, 1996.
In the brief, the appellate defender, James Duggan, argued
the issue of the petitioner's right to have the court inquire of
him and hold a hearing on the issue of his counsel's conflict of
interest. Although the issue of whether an actual conflict of
interest existed was raised in the notice of appeal, it was not
briefed. The case was argued to the supreme court on December 6,
1996, and the decision affirming the conviction issued on April
23, 1998. The supreme court held that under the state law rule
in Hopps v. State Bd. of Parole, 127 N.H. 133, 140 (1985), the
trial court should have inquired of the petitioner about his
counsel's conflict of interest but that no constitutional
violation occurred as a result of the court's failure to inquire.
See State v. Mountiov, 142 N.H. 648, 651 (1998) . The court also
4 held that by not briefing the issue the petitioner had waived the
issue of whether his trial counsel was representing him under an
actual conflict of interest. See id. at 652.
In the meantime, the petitioner filed a petition for habeas
relief in this court on October 8, 1997. The court determined
that the petition included both exhausted and unexhausted claims
and dismissed it as a mixed petition and denied the petitioner's
request for a certificate of appealability. The First Circuit
Court of Appeals also denied a certificate of appealability for
lack of exhaustion.
The petitioner filed a petition for habeas corpus in state
court on July 7, 1999. As grounds for relief, he argued that he
was denied the effective assistance of counsel because the trial
judge failed to personally inquire of him or hold a hearing on
the question of his counsel's conflict of interest and that his
appellate counsel provided ineffective assistance by failing to
brief the actual conflict issue. A hearing was held on his
petition on September 10, 1999, and the petition was denied in a
written opinion issued on September 23, 1999. The petitioner
represents that he filed a notice of appeal of that decision to
the New Hampshire Supreme Court and that the court declined to
hear the appeal.
5 Discussion
The petitioner's three claims for habeas relief are:
violation of his right to conflict-free representation due to the
state trial court's failure to inquire of him as to whether he
waived the right; ineffective assistance of his appellate counsel
in failing to brief a claim that his trial counsel represented
him under an actual conflict of interest; and a due process
violation caused by delay in his appeal. In the answer, the
respondent acknowledges that the first two issues have been
exhausted, but contends that the third issue was never raised in
state court and is unexhausted. The respondent asks that the
court deny the petition on the merits rather than dismiss the
petition because of the unexhausted claim.
Federal courts are barred from granting an application for a
writ of habeas corpus to state prisoners unless the petitioner
has exhausted all available state remedies. See 28 U.S.C.A. §
2254(b)(1). Habeas relief cannot be granted as to "any claim
that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the
6 evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d); see also Vieux v. Pepe, 184 F.3d 59, 62
(1st Cir. 1999). A factual determination made by a state court
is presumed to be correct, and the petitioner may rebut the
presumption only by clear and convincing evidence. See §
2254 (e)(1).
As to each claim raised in an application for habeas relief,
the court first determines whether clearly established federal
law, based on Supreme Court precedent, governs the claim. See
Torres v. Dubois, 174 F.3d 43, 46 (1st Cir. 1999). The court
then decides whether the state court decision was "contrary to"
or an "unreasonable application of" clearly established federal
law. See Williams, 2000 WL 385369 at *22. A decision is
"contrary to" clearly established law if the state court applied
a legal standard that contradicts the governing federal law or,
based on materially indistinguishable facts, came to a result
that is different from the Supreme Court's previous result. See
id. at *24. A decision is an unreasonable application of the law
if, despite correctly identifying the governing legal precedent,
the state court applied the law unreasonably to the facts of the
case or unreasonably extended or failed to extend legal precedent
7 in a new context.2 See id. at *25.
When a petitioner has not exhausted available state remedies
as to a claim raised in a habeas application, the federal court
may nevertheless dismiss the application, despite the exhaustion
requirement, when the merits of the claim are clearly not in the
petitioner's favor. See 28 U.S.C.A. § 2254(b)(2); West v.
Vaughn, 204 F.3d 53, 63 (3d Cir. 2000) . Therefore, the court
will begin with the unexhausted claim, which alleges a due
process violation based on the time that elapsed between the
petitioner's conviction and the supreme court's decision on his
appeal.
A. Appellate Delay
Extreme delay between the conviction and the resolution of
the case on appeal can amount to a due process violation if the
petitioner also shows that he was prejudiced by the delay. See
United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.
1995) . No constitutional inquiry is required unless there was a
delay sufficient to raise concerns as to its prejudicial effects,
2The Supreme Court's recent interpretation of the "contrary to" and "unreasonable application of" prongs of § 2254(d)(1) may call into question the First Circuit's interpretation announced in O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998). See Williams, 2000 WL 385369 at *24-25. in which case the court considers the reasons for the delay,
whether the petitioner asserted his right to speedy process, and
most importantly, whether the delay actually caused prejudice.
See Barker v. Winqo, 407 U.S. 514, 530 (1972); Mims v. LeBlanc,
176 F.3d 280, 282 (5th Cir. 1999); United States v. Smith, 94
F.3d 204, 209 (6th Cir. 1996); United States v. Hawkins, 78 F.3d
348, 350 (8th Cir. 1996); Simmons v. Beyer, 44 F.3d 1160, 1169
(2d Cir. 1995); Latimore v. Spencer, 994 F. Supp. 60, 67 (D.
Mass. 1998). "Whether an appellate delay results in prejudice
sufficient to warrant reversing a conviction rests, most
importantly, on a showing that it has impaired the appeal or the
defense in the event of retrial." Luciano-Moscruera, 63 F.3d at
1158 .
The petitioner was convicted in April of 1994; his notice of
appeal was filed in September of 1995; the briefs were submitted
to the New Hampshire Supreme Court by June of 1996; the case was
submitted following oral argument in December of 1996; and the
supreme court issued its decision in March of 1998. Whether the
delay in resolving the appeal was sufficiently extreme to warrant
constitutional inquiry need not be decided in this case because
the petitioner has presented no evidence, argument, or
allegations in support of his mere statement that he was
prejudiced. There is nothing in the petition or the record that
9 would suggest that his appeal was prejudiced in any way by the
delay. Since his conviction was affirmed, no prejudice to his
defense in the event of a retrial occurred. Absent a showing of
prejudice, the petitioner cannot prevail on an appellate delay
claim. See Luciano-Mosquera, 63 F.3d at 1158.
The petitioner's appellate delay claim, therefore, is
dismissed on the merits.
B. Failure to Inquire About Counsel's Conflict
The petitioner contends that the trial court's failure to
inquire of him as to whether he knowingly waived his right to
conflict-free representation was a violation of his Sixth
Amendment right to counsel. Relying on Holloway v. Arkansas, 435
U.S. 475 (1978), the petitioner contends that he was entitled to
an automatic reversal of his conviction so that the state court's
decision affirming his conviction was contrary to established
Supreme Court precedent. The claim asserting the petitioner's
right to conflict-free representation and the court's obligation
to conduct an adequate inquiry as to possible conflict is
governed by Holloway, 435 U.S. 475; Cuvier v. Sullivan, 446 U.S.
335 (1980); and Wood v. Georgia, 450 U.S. 261 (1981). See also
Atlev v. Ault, 191 F.3d 865, 870 (8th Cir. 1999) .
If the trial court "'knows or reasonably should know that a
10 particular conflict exists,'" the court is constitutionally
required to initiate an inquiry into the nature of the conflict
and the defendant's knowledge of it.3 Wood, 450 U.S. at 273 n.18
(quoting Cuvier, 446 U.S. at 347). Therefore, if the defendant
made a timely objection to representation under a conflict and
the trial court did not inquire further, an actual conflict is
presumed and the conviction must be reversed. See Holloway, 435
U.S. at 484-91. On the other hand, when no objection is raised
and "[ajbsent special circumstances, . . . trial courts may
assume either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such risk of
conflict as may exist." Cuvier, 446 U.S. at 346-47. A defendant
who did not make a timely objection to possibly conflicted
representation "must demonstrate that an actual conflict of
interest adversely affected his lawyer's performance." Id. at
348 .
In this case, the petitioner's trial counsel. Attorney
Jeffco, informed the court and the prosecutor, before the third
3Courts have interpreted the standards in Holloway and Cuvier to apply in other conflict situations in addition to the joint representation of co-defendants. See, e.g.. Wood, 450 U.S at 271-72; Riggs v. United States, ___ F.3d , 2000 WL 365279 at *6 n.l (6th Cir. Apr. 11, 2000); Atlev, 191 F.3d at 870 n.4; Spreitzer v. Peters, 114 F.3d 1435, 1451 n.7 (7th Cir. 1997).
11 trial began, that he had undertaken the representation of one of
the state's witnesses. Officer Pratte, on an unrelated matter,
after the conclusion of the second trial. Jeffco represented to
the court that he did not believe a conflict of interest existed
and that the petitioner had been informed and did not object to
continued representation by Jeffco. The prosecutor agreed that
Jeffco's representation of Pratte did not create a conflict of
interest as to his representation of the petitioner. The
discussion took place in chambers, not on the record, and the
petitioner was not included nor did the court inquire of the
petitioner as to his knowledge of the conflict or agreement to
Jeffco's continued representation. The question of a conflict of
interest did not arise again until the post conviction motions
were filed.
In response to the petitioner's motion for judgment of
acquittal, which raised the lack of an adequate inquiry into the
conflict issue, the trial court conceded that further inquiry
should have been made. The court reexamined the trial
transcript, the pleadings, and held a hearing on the motion. The
court found that Jeffco had disclosed to the petitioner just
before trial that he represented Pratte in another matter. The
court also found that Pratte provided favorable evidence for the
defense on the issue of identification, that Jeffco would have
12 called him as a defense witness if the state had not, and that
Jeffco handled the defense and his cross-examination of Pratte
just as he had in the first two trials when he did not represent
Pratte. Based on all of the evidence, including the testimony at
the hearing, the trial court determined that Jeffco's
representation of Pratte did not cause a conflict of interest in
his representation of the petitioner.
On appeal, appellate counsel pursued the issue of whether
the trial court made an adequate inquiry under the Hopps
standard.4 The New Hampshire Supreme Court held that the Hopps
inquiry requirement applied to any potential conflict of
interest, not exclusively to joint representation of co
defendants, and that the trial court should have conducted such
an inquiry. Mountjoy, 142 N.H. at 683. The court concluded,
however, that the requirement was merely a prophylactic state
rule to avoid unnecessary collateral attacks on criminal
convictions and was not constitutionally mandated. See id. at
684. The court held that the automatic reversal rule under
Holloway was inapplicable to the case because the petitioner did
not object at trial to the potential conflict and that the actual
4Hopps, 127 N.H. at 140 (requiring a hearing on the record to secure a defendant's informed consent to representation by counsel with a potential conflict of interest).
13 conflict standard under Cuvier applied instead. See id. Because
the petitioner's appellate counsel had not briefed the issue of
an actual conflict, however, the court deemed the actual conflict
issue to have been waived.
The New Hampshire Supreme Court distinguished the Supreme
Court's decision in Wood, 450 U.S. at 273, in which the Court
considered the issue of conflict sua sponte and remanded the case
for a hearing on the issue. See Mounti ov, 142 N.H. at 685. The
New Hampshire court noted that unlike the trial court in Wood,
the trial court in Mounti ov addressed the issue of whether an
actual conflict existed in response to the post-trial motions
obviating any need under Wood to reverse the convictions and
remand for a hearing on the conflict issue. See id. The
conviction was affirmed.
The New Hampshire Supreme Court correctly determined that
this is not a case, as in Holloway, in which the defendant (or
counsel) obi ected to a possible conflict of interest and the
trial court ignored the possibility of a conflict and denied the
objection without an adequate inquiry.5 The court's conclusion
5The supreme court focused on the lack of an objection to the potential conflict and did not explicitly address the effect of the inquiry the trial court did make. In this case, unlike Wood, defense counsel and the prosecutor assured the trial court that no conflict existed and that the petitioner had been
14 that automatic reversal was not mandated under Holloway,
therefore, was neither contrary to nor an unreasonable
application of Supreme Court precedent.
Under Wood, however, when a trial court knows or should have
known of an unchallenged potential conflict, the court is
obligated to make an adequate inquiry into the matter. See Wood,
450 U.S. at 270-71. If the court ignores an unchallenged
potential conflict, the remedy applied in Wood is to vacate the
conviction and remand the case for a hearing on the conflict
issue to determine whether an actual conflict existed that would
require reversal of the conviction. See Wood, 450 U.S. at 261.
On the other hand, trial courts may rely on the good faith and
good judgment of counsel in assessing the possibility of conflict
and prejudice to the defendant, without making further inquiry
into unchallenged but obvious potential conflicts such as joint
representation of co-defendants. See Cuvier, 446 U.S. at 347-48.
Therefore, to the extent Supreme Court precedent is clear,
automatic reversal is not required when no objection has been
made to an obvious potential conflict. See, e.g., Dawan v.
Lockhart, 980 F.2d 470, 474 (8th Cir. 1992) (discussing inquiry
informed that his attorney also represented the state's witness. See Spreitzer v. Peters, 114 F.3d 1435, 1451-52 (7th Cir. 1997) (finding that trial court appropriately relied on defense counsel's assessment of potential conflict of interest).
15 requirement under Wood); Brien v. United States, 695 F.2d 10, 15
n.10 (1st Cir. 1982) (same); Mickens v. Greene, 74 F. Supp. 2d
586, 612-13 (E.D. V a . 1999) (same).
Wood, however, requires that an inquiry be made into an
unchallenged potential conflict, which was known to the trial
court, to determine whether an actual conflict existed. See
Wood, 450 U.S. at 261. The state supreme court determined that
the trial court satisfied the inquiry requirement because the
court considered the conflict issue post trial and determined
that no actual conflict existed. Other federal courts have
considered the inquiry requirement in Wood and determined that
any further judicial inquiry which establishes that no actual
conflict existed fills the gap in the record and satisfies due
process. See, e.g., Garcia v. Bunnell, 33 F.3d 1193, 1199 (9th
Cir. 1994) (relying on district court's hearing on conflict);
Brien, 695 F.2d at 15 n.10; Mickens, 74 F. Supp.2d at 614
(discussing requirements and citing cases). See also O'Brien,
145 F.3d at 25 ("To the extent that inferior federal courts have
decided factually similar cases, reference to those decisions is
appropriate in assessing the reasonableness vel non of the state
court's treatment of the contested issue."). The state supreme
court's decision is neither contrary to nor an unreasonable
application of the legal principles in Wood.
16 Therefore, under the circumstances of this case, where
counsel raised the conflict issue before trial and told the court
both that no actual conflict existed and that he had informed the
petitioner, and the prosecutor agreed that no conflict existed,
the New Hampshire Supreme Court's decision that Holloway did not
apply and that Wood was satisfied by the trial court's post-trial
inquiry was neither contrary to nor an unreasonable application
of Supreme Court precedent. See Cuvier, 446 U.S. at 346-48; see
also Williams, 2000 WL 385369 at *24.
The petitioner has not challenged the state court's
determination of the facts and, therefore, has not provided clear
and convincing evidence that the court's findings were erroneous.
See § 2254(e). The state court's factual findings are therefore
presumed to be correct. The record and the petition provide no
basis to grant the writ due to a decision that was contrary to or
an unreasonable application of Supreme Court precedent or that
resulted from an unreasonable determination of the facts in the
case. See § 2254(d).
C. Ineffective Assistance of Appellate Counsel
Constitutionally ineffective assistance of appellate counsel
is reviewed under the familiar standard established in Strickland
v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 120 S.
17 Ct. 746, 764 (2000). The Strickland test requires claimants to
prove that counsel's performance was both deficient and
prejudicial to his case. See Strickland, 466 U.S. at 687; accord
Roe v. Flores-Qrteqa, 120 S. C t . 1029, 1034 (2000) . Deficient
performance is representation "that falls below 'an objective
standard of reasonableness' under prevailing professional norms
when considering all the circumstances." Matthews v. Rakiev, 54
F.3d 908, 924-35 (1st Cir. 1995) (quoting Strickland, 466 U.S. at
688). Counsel's performance is to be evaluated by a highly
deferential standard in light of the circumstances that existed
in the case at the time of counsel's conduct. See Roe, 120 S.
C t . at 1035. Prejudice "in this context means 'a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Prou v.
United States, 199 F.3d 37, 48-49 (1st Cir. 1999) (quoting
Strickland, 466 U.S. at 494).
The petitioner raised the issue of ineffective assistance of
appellate counsel in his state habeas proceeding. The state
court considered the claim under the standard provided in a state
case. State v. Wisowatv, 137 N.H. 298, 302 (1993), which relied
on the Strickland standard.6 See id. The state habeas court
6Since the state supreme court declined the petitioner's appeal in his habeas proceeding, the decision of the state trial
18 stated the applicable standard as follows:
In order to prevail on a claim of ineffective assistance of counsel, petitioner must show (1) that his attorney made such egregious errors that he was not functioning as the counsel guaranteed by the Federal and State Constitutions, and (2) that such errors were prejudicial, in the sense that there is a reasonable probability that the result of the legal proceeding would have been different had he received competent legal representation.
Mountjoy v. Risley, No. 99-E-260 at 3, Sept. 26, 1999 (internal
quotations omitted). The court's legal standard for ineffective
assistance of counsel does not contradict the Strickland
standard, nor is the decision different from a factually
indistinguishable Supreme Court case. See Williams, 2000 WL
385369 at *24; see also, e.g.. Smith v. Robbins, 120 S. C t . 746
(2000) (discussing ineffective assistance claim for failure to
file appellate brief on merits); Burger v. Kemp. 483 U.S. 776,
784 (1987) (discussing appellate counsel's discretion to choose
meritorious claims).
The second prong of § 2254(d)(1) requires an analysis of
whether a state court decision, applying the correct legal
principles, was an unreasonable application of the law to the
facts of the case. See Williams, 2000 WL 385369 at *27. The
court is the last reasoned opinion on the issue and is the decision that is considered for purposes of federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); accord Phoenix v. Matesanz, 189 F.3d 20, 25 (1st Cir. 1999) .
19 state court determined that the petitioner could not show either
that his appellate counsel's representation constituted sub
standard performance or that he was prejudiced by counsel's
failure to brief the actual conflict of interest issue on appeal.
With respect to appellate counsel's representation, the
state court credited counsel's testimony at the habeas hearing
that he believed there was little factual basis for pursuing a
claim of an actual conflict of interest and that he was concerned
that pursuing such a weak claim would detract from the stronger
claim based on the court's failure to inquire about the conflict.
Quoting Burger, 483 U.S. at 784, the court held that counsel's
decision to winnow out the weaker claim showed effective
appellate advocacy.
The Supreme Court has held that appellate counsel is not
obligated to raise and brief every colorable claim, but may,
instead, choose the stronger claims to pursue on appeal. See
Jones v. Barnes, 463 U.S. 745, 752 (1983); accord Smith v.
Murray, 477 U.S. 527, 536 (1986). Appellate counsel's
supportable strategic decision to forego an issue on appeal does
not constitute ineffective assistance of counsel. See Burger,
483 U.S. at 784. Therefore, the state court's analysis of
appellate counsel's performance is consistent with and not
contrary to or an unreasonable application of Supreme Court
20 precedent. See id. ("the 'process of "winnowing out weaker
claims on appeal and focusing on" those more likely to prevail,
far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.'") (quoting Smith, 477 U.S. at 536
quoting Jones 463 U.S. at 751-52 ).
As to whether a reasonable probability existed that briefing
the actual conflict issue might have lead to a different outcome
on appeal, there must have been a reasonable probability that an
actual conflict of interest which adversely affected Jeffco's
performance could have been shown to exist. See Strickland, 466
U.S. at 692 (quoting Cuvier, 446 U.S. at 350). The state habeas
court reviewed the three alternative strategies the petitioner
argued Jeffco might have pursued but for his concurrent
representation of Pratte. The court held that the evidence did
not support a theory that the police, including Pratte, rather
than the victim, suggested the petitioner as the perpetrator.
The court also found the record showed that the police
investigation was quite extensive, although not perfect, and that
Jeffco had highlighted the deficiencies just as he had done in
the two previous trials when he did not represent Pratte. As to
the petitioner's theory of impeaching Officer Pratte with his own
indictment for sexual assault, the court said that such
examination would not have been permissible under the rules of
21 evidence.
The court concluded that because of the importance to the
defense of Pratte's testimony about the identification of the
perpetrator, "any competent attorney representing the defendant
would have pursued the same strategy in dealing with Pratte as
was employed by Jeffco." Mounti ov, 99-E-260 at 6. The court
held that appellate counsel determined correctly that Jeffco "did
not have an actual conflict of interest arising out of his
representation of Officer Pratte" and that appellate counsel
"made a prudent and reasonable decision not to pursue before the
supreme court the issue of an actual conflict of interest."
Mounti ov, 99-E-260 at 7.
The state habeas court's analysis of the second prong of the
Strickland standard, requiring a reasonable probability of a
different outcome if the issue of actual conflict had been
briefed, was neither contrary to nor an unreasonable application
of Supreme Court precedent. See § 2254(d)(1). Since the
petitioner did not challenge the factual basis of the court's
decision and the record indicates no infirmity, there is no
indication that the decision was based on an unreasonable
determination of the facts. See § 2254(d)(2). The record does
not support a writ of habeas corpus on the petitioner's
ineffective assistance of appellate counsel claim.
22 Conclusion
For the foregoing reasons, the petitioner's application for
a writ of habeas corpus (document no. 1) is denied. The clerk of
court shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr, District Judge
May 11, 2000
cc: Keith Mounjoy, pro se Ann M. Rice, Esquire