Richard Allison v. EDWARD FICCO, Superintendent and THOMAS F. REILLY, Attorney General of Massachusetts

United States Court of Appeals
For the First Circuit
No. 03-2310
RICHARD ALLISON,
Petitioner, Appellant,
v.
EDWARD FICCO, Superintendent and THOMAS F. REILLY,
Attorney General of Massachusetts,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Court]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
Howard, Circuit Judge.
James W. Rosseel for appellant.
David M. Lieber, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellees.
November 5, 2004

-- 1 of 10 --

-2-
LYNCH, Circuit Judge. Richard Allison was convicted in
state court of murder in the first degree on a theory of extreme
atrocity or cruelty. He was also convicted of armed robbery and
perjury. The murder victim, Thomas Moran, was a friend, whom
Allison and two others shot in the face, stabbed seventy-nine
times, and left lying in a school baseball field. Massachusetts v.
Allison, 751 N.E.2d 868, 877-78 (Mass. 2001). The motive seems to
have been their intoxicated irritation with stupid comments the
victim had made, critical of them. The evidence at trial was
strong, a state jury convicted all three defendants, and Allison
was sentenced to mandatory life imprisonment.
Allison moved for state post-conviction relief, arguing
his trial lawyer, Thomas Amoroso, had not provided effective
assistance of counsel because he had conflicting interests and that
the evidence was insufficient to establish a joint venture in the
murder. Both these claims are now raised before us.
We turn first to the ineffective assistance of counsel
claim. The supposed conflict came from two factors. First,
Amoroso had a separate practice but shared office space with the
lawyers for Allison's two co-defendants, Sullivan and Hardy, men
whose interests were at cross purposes with Allison's, as each
pointed the finger at the others. Second, Amoroso's $30,000 fee
was to be paid from the proceeds of an assignment of a personal
injury claim of the sister of co-defendant Hardy.

-- 2 of 10 --

-3-
The same state judge who presided over the trial heard
the claim that Amoroso did not, because of these purported
conflicts, provide effective assistance of counsel. The judge
heard witnesses over several days of hearings and issued a
thoughtful and thorough opinion. The court first heard evidence on
whether there was an actual conflict of interest; if that were
proven, it said it would grant a new trial without a showing of
prejudice in adherence to a Massachusetts state law rule. If there
was no actual conflict but only a potential conflict, then the
court would hear, as it did, the issue of whether there was
ineffective assistance of counsel.
The trial judge concluded that as a matter of fact and
law there was no actual conflict and that the defendant had failed
to show adverse effects from any potential conflict. As to the
potential conflict, the judge specifically found:
Even assuming a potential conflict of interest, Allison
has failed to meet his burden of demonstrating that such
a conflict materially prejudiced his defense. There is
nothing in the record to suggest that Amoroso had divided
loyalties either as a result of the office sharing
arrangement or as a result of the fee agreement. Nor is
there evidence that he was influenced to either act or
refrain from acting in any way because of his association
with either [of the lawyers for the co-defendants]. To
the extent that Allison complains of strategic
deficiencies at trial by counsel, he has not demonstrated
that they were motivated by a desire to benefit co-
defendants Hardy and Sullivan. Accordingly, this Court
concludes that Allison was not denied effective
assistance of trial counsel due to a potential conflict
of interest which prejudiced his defense, and is not
entitled to a new trial on that basis.

-- 3 of 10 --

1Allison raised two other grounds in his habeas petition
before the district court. One is not before us, and the other,
the sufficiency of the evidence for joint venture murder, is
discussed below.
-4-
The Massachusetts Supreme Judicial Court (S.J.C.) affirmed this
determination. Allison, 751 N.E.2d at 893-94.
Allison then turned to federal court, filing a habeas
corpus petition under 28 U.S.C. § 2254, alleging the state
conviction violated his federal constitutional rights under the
Sixth Amendment right to counsel.1 The federal district court
rejected the habeas petition as unfounded. Allison v. Ficco, 284
F.Supp.2d 182, 191 (D. Mass. 2003). So do we.
Because the state courts squarely addressed the federal
constitutional issue we engage in deferential, and not de novo,
review. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). When
a claim is adjudicated on the merits in state court proceedings,
the petitioner must show that the decision of the state courts was
either "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States; or . . . that [the decision] was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding[s]." 28 U.S.C. §
2254(d)(1),(2). Allison can do neither.
The habeas petition is based on a misapprehension of what
the Supreme Court has decided in the area of putative conflicts of

-- 4 of 10 --

-5-
interest of criminal defense counsel. Allison works backwards from
the language in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), and
Mickens v. Taylor, 535 U.S. 162, 171 (2002), and argues that if
there is any effect at all on counsel's performance, then there is
an actual conflict of interest and he need not show prejudice in
the sense of Strickland v. Washington, 466 U.S. 668, 694 (1984).
There are two problems: this is not an accurate statement of law,
and even if it were, the state court found there was no such
adverse effect.
The general rule for showing ineffective assistance of
counsel under Strickland requires a showing of prejudice to make
out a claim of ineffective assistance. See Strickland, 466 U.S. at
694 (requiring a defendant alleging ineffective assistance of
counsel to show a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different").
In Mickens, the Supreme Court addressed under what
circumstances a trial judge's failure at the time of trial to
inquire into defense counsel's conflict of interest requires
reversal without the usual showing that the conflict prejudiced the
defense. Mickens, 535 U.S. at 166-67. The Mickens inquiry
concerned exceptions to the general rule of showing prejudice. One
exception is the situation found in Holloway v. Arkansas, 435 U.S.
475 (1978), where counsel objects but is forced to jointly

-- 5 of 10 --

-6-
represent two defendants with conflicting interests at trial
without any inquiry from the district court. The Court held that
the defendant need not show that his counsel actively represented
those conflicting interests, nor that the conflict detrimentally
affected his counsel's representation of him or resulted in
prejudice. Id. at 490-91.
In Sullivan, however, where defendant had not objected to
the joint representation of co-defendants with conflicting
interests, the Court forged a standard that falls midway between
Strickland and Holloway. Once the defendant proves that "an actual
conflict of interest adversely affected" his attorney's
representation of him, prejudice will be presumed. Sullivan, 446
U.S. at 348. Allison has failed to make the required threshold
showing. Indeed, Burger v. Kemp, 483 U.S. 776 (1987), made it
clear that an actual conflict of interest will not be inferred
merely from law partners' representation of co-defendants with
antagonistic defenses, even where the partners discussed each
other's cases, shared common research, or otherwise collaborated to
an extent short of sharing their clients' confidences. Here, the
S.J.C. reasonably found, as a matter of fact, that the Amoroso
office-sharing arrangement was even less conducive to actual
conflict than the Burger law firm. Hence it follows that the
S.J.C.'s decision is neither contrary to nor an unreasonable
application of established Supreme Court precedent.

-- 6 of 10 --

-7-
We go a bit further. We see no prejudice or adverse
effects that Allison has suffered from the potential conflict. He
seems to suggest the evidence could be read to conclude that the
lawyer's supposed conflict led to bad advice to Allison not to
testify, and/or the conflicts somehow affected counsel's advice to
Allison on whether to plead guilty. There is not a shred of
evidence to support either contention and the record reads to the
contrary. Allison had very good reason not to take the stand. He
had been indicted for perjury before the grand jury. As a result,
if he had testified, whatever he said might well have landed him in
trouble. Allison also posits some prejudice from the fact that he
was visited by an investigator for a co-defendant and asked whether
he was cooperating with the government. Allison then informed his
lawyer of the conversation and asked him to tell defense counsel
that he was not cooperating. We see no prejudice, and this
evidence undercuts the notion that his lawyer's purported conflict
caused him not to cooperate.
In a habeas corpus proceeding in which the petitioner is
"in custody pursuant to the judgement of a [s]tate court, a
determination of a factual issue made by a [s]tate court shall be
presumed to be correct." 28 U.S.C. § 2254(e)(1). The defendant
"must clear a high hurdle before a federal court will set aside any
of the state court's factual findings." Mastracchio v. Vose, 274
F.3d 590, 598 (1st Cir. 2001). Allison does not seriously attempt

-- 7 of 10 --

-8-
an argument that the state court's factual findings concerning the
alleged adverse effects are wrong. There being neither an actual
conflict nor any adverse effects from a potential conflict, the
decision of the S.J.C. to deny relief to petitioner is hardly
unreasonable.
Petitioner's second claim, based on the insufficiency of
evidence to establish a joint venture, also fails. Allison argues
that the S.J.C.'s finding of sufficient evidence to convict
petitioner of murder in the course of a joint venture was an
unreasonable application of clearly established federal law which
requires proof beyond a reasonable doubt of each element of a
crime. See Jackson v. Virginia, 443 U.S. 307, 313-14 (1979). He
contends that evidence presented at trial conclusively established
that it was impossible for Hardy, Sullivan, and him to make a prior
agreement to murder the victim and it was unreasonable for the
S.J.C. to ignore this evidence in determining that a rational juror
could find beyond a reasonable doubt the existence of a joint
venture.
The S.J.C. noted that a joint venture may be found if
there is evidence from which a rational juror could have concluded
beyond a reasonable doubt that the defendant was
(1) present at the scene of the crime, (2) with knowledge
that another intends to commit the crime or with intent
to commit a crime, and (3) by agreement is willing and
available to help the other if necessary.

-- 8 of 10 --

-9-
Massachusetts v. Allison, 751 N.E.2d 868, 878-79 (Mass. 2001)
(quoting Commonwealth v. Bianco, 446 N.E.2d 1041 (Mass.
1983)(internal quotations omitted)). Viewing the evidence in the
light most favorable to the Commonwealth and relying on the
testimony of one witness, the S.J.C. found that "[a] rational juror
could have concluded that the defendant" and two of his co-
defendants "discussed a plan to kill Moran." Id. at 879.
The S.J.C. further noted, "[i]n any event, an
anticipatory compact is not necessary for joint venture liability,
as long as 'at the climactic moments the parties consciously acted
together in carrying out the criminal endeavor.'" Id. (quoting
Commonwealth v. Fidler, 503 N.E.2d 1302, 1307 (Mass. App. Ct.
1987)). The S.J.C. held that the eyewitness testimony that Allison
and his co-defendants were "crouched over the victim making
stabbing gestures is sufficient to establish the defendant's
liability for the murder both individually and as joint venturer."
Id. at 879.
Allison does not argue that the S.J.C. made an error of
law when it stated the elements of a joint venture and determined
that an anticipatory compact is not necessary to find joint
venture. The S.J.C.'s determination, based upon the eyewitness's
testimony that Allison along with the others crouched over the
victim and made stabbing motions, is more than reasonable and
sufficient to establish a joint venture on its own.

-- 9 of 10 --

-10-
The denial of the petition for habeas corpus is affirmed.

-- 10 of 10 --