Bostick v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-20111
BENJAMIN A. BOSTICK,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Benjamin Bostick was convicted of aggravated robbery after pleading guil-
ty. He appeals the denial of his petition for writ of habeas corpus, and we affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2009
Charles R. Fulbruge III
Clerk

-- 1 of 7 --

No. 08-20111
2
I.
In separate incidents, Henry Fillion and Clarence Eriksen were robbed of
their watches at gunpoint. The police suspected Harlan Washington of both rob-
beries and took him into custody, where Eriksen identified him in a line-up. Af-
ter Washington was charged with aggravated robbery of Eriksen, he hired at-
torney Doug O’Brien to represent him.
Washington told the police that Bostick was involved in watch robberies,
so they contacted Bostick as part of their investigation into the Fillion robbery.
Bostick called upon O’Brien to discuss the inquest, but O’Brien referred him to
another attorney, explaining that “it would not be in either [Bostick’s] or Mr.
Washington’s best interest to have the same counsel representing them during
a pending investigation.”
Several of Washington’s friends approached Bostick and urged him to con-
fess to the Eriksen robbery. They explained that, because Washington was a ca-
reer offender, his parole would be revoked if he were convicted. They assured
Bostick that he would receive only probation, because he did not have a criminal
record. One of Washington’s friends then pressured him to go to O’Brien’s office
and confess to the Eriksen robbery. Bostick acquiesced, wrote out a confession
on a legal pad, and gave it to O’Brien. O’Brien warned him that, by issuing the
statement, he might be charged with the Eriksen robbery.
Meanwhile, Fillion identified Bostick in a photo array as the person who
had robbed him of his watch. The police issued a complaint charging Bostick
with aggravated robbery and issued a warrant for his arrest. Bostick returned
to O’Brien, who once again explained the potential problems associated with du-
al representation but agreed to serve as counsel after Washington and Bostick
had waived the possible conflict.
At some point, Bostick discussed the Eriksen robbery with O’Brien for a
second time. He requested that O’Brien turn over the written confession to the

-- 2 of 7 --

No. 08-20111
The exact chronology of events is a bit confused in the record. Specifically, it is not1
evident whether Bostick confessed to the Eriksen robbery before or after he was charged with
the Fillion robbery and retained O’Brien as his counsel. Bostick was charged on December 6;
his brief says that the confession was turned over on December 2, but the presentence investi-
gation addendum says that it was tendered on December 9. The hand-written confession let-
ter is dated December 9, but Bostick’s affidavit says he was forced to write that letter in O’Bri-
en’s office on December 2.
3
district attorney and asked that he be allowed to testify at Washington’s parole
revocation hearing. After the district attorney received Bostick’s confession to
the Eriksen robbery, the charges against Washington were dropped. Later,1
O’Brien subpoenaed Bostick to testify on Washington’s behalf at the parole revo-
cation proceeding, and Washington’s parole was reinstated. Bostick was never
charged with the Eriksen robbery.
The police arrested Bostick for the Fillion robbery, and he pleaded guilty.
Before the sentencing hearing, O’Brien advised Bostick that he needed to make
arrangements to pay for his legal services, and if he was unable to pay, he should
contact Washington.
The court sentenced Bostick to eighteen-years’ imprisonment, relying on
a presentence investigation report (“PSR”) that mentioned his confession to the
Eriksen robbery. The court denied a motion for new trial that alleged that Bos-
tick’s counsel had a conflict of interest in violation of the Sixth Amendment.
Bostick’s state appeals were unsuccessful.
Bostick raised the issue again in a state petition for writ of habeas corpus,
which was denied by the trial court and the Texas Court of Criminal Appeals.
Likewise, the federal district court denied habeas relief. We granted a certificate
of appealability (“COA”) to determine “whether [his] trial counsel labored under
an actual conflict of interest that adversely affected counsel’s performance.”

-- 3 of 7 --

No. 08-20111
4
II.
A.
“In reviewing requests for federal habeas corpus relief, we review the dis-
trict court’s findings of fact for clear error, but review the issues of law de novo.”
Myers v. Johnson, 76 F.3d 1330, 1333 (5th Cir. 1996) (citation omitted). Under
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “when a
federal habeas petitioner’s claim has been adjudicated on the merits in a state
court proceeding, a federal court may only grant habeas relief if the state court’s
adjudication of the claim either: (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established federal law as de-
termined by the United States Supreme Court, or (2) resulted in a decision that
was based on an unreasonable interpretation of the facts in light of evidence pre-
sented in the state court proceeding.” Rogers v. Quarterman, 555 F.3d 483, 488
(5th Cir. 2009) (citing 28 U.S.C. § 2254(d)(1), (2)), petition for cert. filed (May 13,
2009) (No. 08-10421).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to grant the writ if the state court identifies the correct governing
legal principle from this Court’s decisions but unreasonably applies the principle
to the fact’s of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (ci-
tation omitted). Ultimately, “[t]he question under AEDPA is not whether a fed-
eral court believes the state court’s determination was incorrect but whether
that determination was unreasonableSSa substantially higher threshold.” Schri-
ro v. Landrigan, 550 U.S. 465, 473 (2007). Further, state court determinations
of factual issues “shall be presumed to be correct,” and the petitioner “shall have
the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).

-- 4 of 7 --

No. 08-20111
“In the absence of [Sullivan]’s actual conflict exception, a defendant claiming that his2
attorney had a conflict of interest must show a reasonable probability that the conflict preju-
diced the defense, undermining the reliability of the proceeding.” United States v. Garza, 429
F.3d 165, 171 n.3 (5th Cir. 2005) (citation and internal quotation marks omitted). See also
Beets v. Scott, 65 F.3d 1258, 1265-66 (5th Cir. 1995) (en banc) (discussing the relationship be-
tween Washington’s ineffective-assistance-of-counsel standard and Sullivan’s conflict-of-inter-
est standard).
5
B.
The Sixth Amendment protects a defendant’s right to effective assistance
of counsel. See Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To estab-
lish a deprivation of that right, a defendant ordinarily must show “that counsel’s
representation fell below an objective standard of reasonableness” and “that the
deficient representation caused prejudice.” Coble v. Quarterman, 496 F.3d 430,
435 (5th Cir. 2007) (citations and internal quotation marks omitted). Prejudice
is presumed, however, in the narrow class of cases where a “defendant demon-
strates that counsel ‘actively represented conflicting interests’ and that ‘an actu-
al conflict of interest adversely affected his lawyer’s performance.’” Washington,
466 U.S. at 692 (1984) (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)).2
We granted a COA to determine whether Bostick is entitled to Sullivan’s
presumption of prejudice. Under AEDPA, “the question before us is whether the
[state] Court of Appeals reasonably applied the two prong test of whether
(1) there was ‘an actual conflict of interest’ that (2) ‘adversely affected his law-
yer’s performance.’” Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005) (quot-
ing Sullivan, 446 U.S. at 348).
Multiple representation does not always create an impermissible conflict.
United States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007). “[S]omething
more than a speculative or potential conflict” must be shown. Id. “[A] conflict
will exist only when counsel is ‘compelled to compromise his or her duty of loyal-
ty or zealous advocacy to the accused by choosing between or blending the diver-
gent or competing interests of a former or current client.’” Id. (quoting United

-- 5 of 7 --

No. 08-20111
For example, Bostick complains that O’Brien did not present any character witnesses3
at his sentencing.
Bostick discusses the fact that O’Brien subpoenaed him to testify about the Ericksen4
robbery at Washington’s parole revocation hearing, but only the hand-written confession was
brought to the sentencing court’s attention. The PSR cites only the written confession and
does not mention the parole hearing testimony.
6
States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006)).
C.
The state habeas court did not unreasonably apply the Sullivan standard
to Bostick’s petition. At the outset, it is critical to identify the scope of any po-
tential conflict of interest. Specifically, Bostick’s brief criticizes O’Brien for his
defense tactics. Those criticisms do not implicate any alleged conflict of inter-3
est, however, because none involves O’Brien’s “choosing between or blending the
divergent or competing interests of” Bostick and WashingtonSSWashington could
not have derived any benefit from Bostick’s receiving a greater or lesser sen-
tence. Within the context of the Fillion prosecution, O’Brien was not in a posi-
tion in which his “clients’ interests diverge[d]” in a way that forced him to
“choose between the interests of multiple clients” or “compelled [him] to compro-
mise his duty of loyalty.” Culverhouse, 507 F.3d at 893.
The only potential conflict is Bostick’s hand-written confession to the Er-
icksen robbery, which directly advanced Washington’s exoneration and potential-
ly increased Bostick’s sentence. We therefore focus on that confession.4
The state habeas and federal district courts found that O’Brien did not
pressure Bostick to confess to the Eriksen robbery. The district court deter-
mined that Bostick “initiated contact with O’Brien with the intent to exonerate
Washington” and that “[a]lthough [Bostick] attests that he confessed to both of-
fenses under duress from Washington’s friends, he does not attest, and the rec-
ord does not show, that O’Brien was aware of such coercion or that O’Brien

-- 6 of 7 --

No. 08-20111
7
pressured [Bostick] in any way.” Both courts also implicitly credited O’Brien’s
affidavit that he briefed Bostick on the conflict of interest and fully warned him
of the potential consequences of confessing over Bostick’s contrary affidavit that
O’Brien did not explain the conflict and promised he would receive only parole.
Given those predicate findings, the state court’s application of Sullivan
was not unreasonable. Although O’Brien may have had divided loyalty, that di-
vision did not adversely affect his representation of Bostick, because the only
relevant harm was the confession on which BostickSSnot O’BrienSSinsisted.
To prevail, Bostick would need to present evidence contradicting the predi-
cate findings. He therefore must establish (1) that O’Brien actually pressured
him to make the confession or turn it over to the district attorney; or (2) that
less-conflicted counsel would have done a better job of convincing him not to
make the confession. He has not attempted to demonstrate either.
In short, Sullivan requires the defendant to “demonstrate that an actual
conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 348.
There has been no showing that any conflicting interest adversely affected Bos-
tick’s representation. The state habeas court’s application of Sullivan was there-
fore not objectively unreasonable, and the denial of habeas relief is AFFIRMED.

-- 7 of 7 --