Torres v. Donnelly
2009 WL 214543, 554 F.3d 322, 2009 U.S. App. LEXIS 1643 (2009)
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Rule of Law:
An attorney's ethical duty of candor to the court, which requires correcting inadvertently elicited false testimony, does not create an actual conflict of interest that would trigger a presumption of prejudice for an ineffective assistance of counsel claim.
Facts:
- Jesus Torres was on trial for the robbery of a grocery store.
- Before trial, Torres's defense attorney, Thomas Keefe, showed a photo array to a witness, Anna Rodriguez, during which she identified Torres as the robber.
- At trial, Keefe cross-examined Anna under the mistaken belief that the police had shown her a second photo array in which she had failed to identify Torres.
- During this cross-examination, Anna testified that she was shown a photo array in June 1998 but did not identify the robber because she was nervous.
- Keefe realized Anna was referring to the photo array he had shown her, and that her testimony about failing to identify the robber was false.
- To fulfill his ethical duty to correct false testimony without becoming a witness himself, Keefe agreed to a stipulation, read to the jury, stating that Anna had, in fact, identified Torres in the photo array he showed her.
Procedural Posture:
- Jesus Torres was convicted by a jury in the Supreme Court of New York, Erie County, on two counts of first-degree robbery.
- Torres appealed his conviction to the Appellate Division, Fourth Department, arguing, among other things, that he received ineffective assistance of counsel.
- The Appellate Division affirmed the conviction.
- The New York Court of Appeals (the state's highest court) denied Torres's petition for leave to appeal.
- Torres filed a petition for a writ of habeas corpus in the United States District Court for the Western District of New York.
- The District Court denied the habeas petition.
- Torres then appealed the denial of his habeas petition to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a defense attorney's ethical duty to correct a witness's inadvertently elicited false testimony create an actual conflict of interest that presumes prejudice for an ineffective assistance of counsel claim under Cuyler v. Sullivan?
Opinions:
Majority - Hall, Circuit Judge
No. The tension between an attorney's duty of zealous representation and their duty of candor to the court does not create an actual conflict of interest that presumes prejudice. The court reasoned that the limited presumption of prejudice established in Cuyler v. Sullivan applies to situations with a high probability of prejudice and difficulty of proof, such as the joint representation of multiple defendants, as clarified in Mickens v. Taylor. An attorney’s professional obligation to avoid using false evidence, as affirmed in Nix v. Whiteside, is a fundamental ethical constraint on representation, not a conflict of interest. Because no actual conflict existed, Torres was required to prove both deficient performance and actual prejudice under the standard Strickland v. Washington test. The court concluded Torres failed to demonstrate prejudice, as there was sufficient independent evidence—including another witness's unequivocal identification—to support the conviction.
Analysis:
This decision narrowly construes the definition of an "actual conflict of interest" for Sixth Amendment ineffective assistance of counsel claims. It reinforces the principle that an attorney's fundamental ethical obligations, such as the duty of candor to the tribunal, do not create a conflict with the duty of zealous advocacy. By distinguishing this situation from conflicts arising from joint representation, the court reinforces the high bar of the Strickland test, requiring most defendants to prove actual prejudice rather than benefiting from the presumed prejudice rule of Cuyler v. Sullivan. This case serves as a clear precedent that the normal ethical constraints of legal practice do not constitute a legal conflict of interest that would void a conviction without a showing of harm.
