Major Tillery v. MARTIN HORN, Dept. of Penna State Prisons On Appeal from the United States District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3616
MAJOR TILLERY,
Appellant
v.
MARTIN HORN,
Dept. of Penna State Prisons
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 99-cv-06516)
District Judge: Hon. Clarence C. Newcomer
Argued: April 4, 2005
BEFORE: BARRY, AMBRO and COWEN, Circuit Judges
(Filed: July 29, 2005)
Michael J. Confusione, Esq. (Argued)
Hegge & Confusione
9 Tanner Street - West Entry
Haddonfield, NJ 08033
Counsel for Appellant

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David C. Glebe, Esq. (Argued)
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Counsel for Appellee
OPINION
COWEN, Circuit Judge.
Appellant Major Tillery appeals from an order of the District Court denying his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that the petition
should have been granted because his trial counsel labored under an actual conflict of
interest. We conclude that the claim is procedurally defaulted, and that Tillery has not
established actual prejudice.
I.
As we write solely for the parties, we briefly review the procedural background.
On May 29, 1985, following a jury trial, Tillery was convicted of first-degree murder and
related crimes. The case arose from an October 22, 1976 shooting incident which
resulted in the death of John Hollis and the wounding of John Pickens. The Pennsylvania
Superior Court affirmed, and on March 5, 1990, the Pennsylvania Supreme Court denied
allocatur.
On September 20, 1996, Tillery petitioned for collateral relief under the
Pennsylvania Post-Conviction Relief Act, alleging that he was denied effective assistance

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of counsel under the Sixth Amendment because his trial counsel, Joseph Santaguida,
operated under an actual conflict of interest. Santaguida had represented Tillery at trial,
but was replaced by James Bruno, Esquire, who filed post-verdict motions on Tillery’s
behalf and represented him on direct appeal. The PCRA court dismissed Tillery’s
application, finding his conflict claim procedurally defaulted, and the Superior Court
affirmed. The Pennsylvania Supreme Court denied allocatur.
Tillery filed the instant petition in the Eastern District of Pennsylvania, asserting
that his trial counsel labored under an actual conflict of interest and was thus
constitutionally ineffective. The District Court dismissed the petition and declined to
issue a certificate of appealability. Tillery next sought relief in this Court, and we
remanded, directing the District Court to permit him to present evidence in support of his
conflict claim. The District Court thereafter held two hearings, but reaffirmed its
previous order denying relief. This appeal ensued.
II.
The District Court had jurisdiction over Tillery’s habeas petition under 28 U.S.C. §
2254, and we have jurisdiction under 28 U.S.C. § 1291. The District Court’s legal
conclusions, including its resolution of legal questions arising from application of the
procedural default doctrine, are subject to plenary review. Hull v. Kyler, 190 F.3d 88, 97
(3d Cir. 1999).
III.

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The Pennsylvania Superior Court concluded that Tillery had waived his actual
conflict claim, finding that he had not raised the claim on direct appeal. The court relied
on 42 Pa. Cons. Stat. Ann. § 9544(b), which states that “an issue is waived if the
petitioner could have raised it but failed to do so . . . on appeal,” as well as that
“‘[i]neffectiveness of trial counsel must be raised at the first opportunity at which the
counsel whose effectiveness is being challenged no longer represents the defendant,’”
(App. at 253 (quoting Commonwealth v. Miller, 564 A.2d 975, 977 (Pa. Super. Ct.
1989))). The state court’s finding of waiver requires us to examine and employ the
federal rules of procedural default.
A. Procedural Default
Under the doctrine of procedural default, a federal habeas court is prohibited from
considering constitutional claims where a state court has refused to entertain their merits
on the basis of an adequate and independent state procedural rule, see Harris v. Reed, 489
U.S. 255, 262 (1989), unless the habeas petitioner can show “cause” for the default and
“prejudice” attributable thereto, Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A state
procedural rule is “adequate” if it is regularly or consistently applied by the state court,
see Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and is “independent” if it does not
“depend[] on a federal constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
To avoid waiver of any ineffective assistance of counsel claims, Pennsylvania law
required Tillery to raise such claims “at the earliest stage in the proceedings at which the

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The Pennsylvania Supreme Court overruled Hubbard in 2002, holding that “as a1
general rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).
Consequently, “any ineffectiveness claim will be waived only after a petitioner has had
the opportunity to raise that claim on collateral review and has failed to avail himself of
that opportunity.” Id. Tillery, however, cannot receive the benefit of this ruling, as the
court further held that the new rule would be applied retroactively to cases currently
pending on direct review in which ineffective assistance claims had been raised and
preserved, but not to cases pending on collateral review. Id. at 738-9 & n.16. Tillery’s
direct and collateral state proceedings had concluded prior to the issuance of Grant.
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counsel whose effectiveness is being challenged no longer represents the defendant.”
Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977). Because Tillery obtained1
new counsel following trial, before the filing of post-verdict motions, the Superior Court
recognized that he was obligated to raise all of his ineffective assistance of counsel claims
pertaining to his trial counsel, including that Santaguida labored under an actual conflict,
in post-verdict motions and on direct appeal.
Tillery challenges the adequacy of the Hubbard rule as applied to his case, arguing
that “the state court never made an ‘adequate’ finding of procedural default because
Tillery did not discover the claim until 1996, when he raised it on post-conviction relief.”
(Appellant’s Br. at 11.) Tillery, however, is conflating concepts of the adequacy and
independence of a state procedural rule with the correctness of the state court’s
application of its own law. Tillery has not furnished any argument or evidence germane
to the adequacy inquiry. See Reynolds v. Ellingsworth, 843 F.2d 712, 719 (3d Cir. 1988).
We have previously determined that the Hubbard rule was an adequate and independent
state procedural rule, see Richardson v. Warden, S.C.I. Huntingdon, 2005 WL 289992 (3d

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Cir. 2005), and there is no evidence to suggest that it was not an independent and
adequate state procedural rule as applied to Tillery. Instead, Tillery is charging
Pennsylvania with the erroneous application of its own procedural rule, which courts have
repeatedly counseled is not a cognizable claim on habeas. See Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”);
Barnes v. Thompson, 58 F.3d 971, 974 n.2 (4th Cir. 1995). Accordingly, the
Pennsylvania Superior Court’s decision to find Tillery’s Sixth Amendment ineffective
assistance claim waived rested upon application of an independent and adequate state
procedural rule. His conflict of interest claim is procedurally defaulted. We can consider
only whether cause and prejudice exists to excuse the procedural default.
B. Cause and Prejudice
A federal habeas court may entertain a procedurally defaulted claim if the
petitioner can show “cause for the default and actual prejudice as a result of the alleged
violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Although
we agree that cause exists to excuse the procedural default, Tillery has not met his burden
in demonstrating actual prejudice.
Tillery contends that the facts underlying the alleged actual conflict of interest
were not known to him or his appellate counsel at the time of his direct appeal, thus
giving rise to “cause” excusing his default. See Murray v. Carrier, 477 U.S. 478, 488

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(1986). Our analysis begins with a brief summary of the facts underpinning Tillery’s
claim.
Tillery’s conflict of interest claim is grounded in allegations that Santaguida also
served as counsel to Pickens, one of the victims of the 1976 shootings, during the trial of
Tillery’s co-defendant, William Franklin. The Commonwealth tried Franklin for the 1976
shootings in 1980, five years prior to trying Tillery. Because Pickens had, according to a
police officer’s notes, identified the shooters as individuals other than Franklin and
Tillery, Franklin attempted to call Pickens as an exculpatory witness. Santaguida
informed Franklin’s attorney that he advised Pickens to invoke his Fifth Amendment right
against self-incrimination and refrain from testifying. The record reflects that, by the time
Franklin actually stood trial in 1980, Pickens had fled the jurisdiction and was unable to
be located, despite extensive efforts by Franklin’s counsel.
Tillery, represented by Santaguida at his trial in 1985, did not discover that counsel
had represented Pickens in Franklin’s trial until 1996, when he came across the decision
of Commonwealth v. Franklin, 580 A.2d 25 (Pa. Super. Ct. 1990). This decision, which
affirmed the denial of Franklin’s petition for collateral relief, revealed that “Mr.
Santaguida informed trial counsel that because of Mr. Pickens’ involvement in the events
underlying the criminal charges filed against [Franklin], he would have to advise his
client not to testify for [Franklin].” Id. at 29.

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At the evidentiary hearing conducted by the District Court, Tillery testified that
Santaguida never disclosed that he formerly represented Pickens at co-defendant
Franklin’s trial. Santaguida could not remember whether he informed Tillery that he had
previously represented Pickens. Thus, the earliest Tillery could have learned of that
representation was in 1990, when the Superior Court issued Commonwealth v. Franklin.
This occurred well after the conclusion of Tillery’s direct appeal. That Tillery’s claim
may not, in fact, be sustainable is not relevant to the reality that its factual basis was not
reasonably available at the time of his direct appeal. Tillery has thus met his burden of
showing cause.
To demonstrate “actual prejudice,” Tillery must show “not merely that the errors at
his trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Tillery cannot sustain
this burden.
The Sixth Amendment guarantees criminal defendants the right to representation
free of conflicts of interest. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988). A petitioner must
demonstrate that “an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). If this showing is made,
prejudice will be presumed. Id. at 349-50. The question of whether counsel operated

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under an actual conflict of interest that adversely affected performance is a mixed
question of law and fact subject to de novo review. Id. at 341-42.
Actual conflict is more likely to occur in cases involving joint representation in a
single proceeding rather than in cases of multiple representation in which the attorney
represents different clients in different matters. Duncan v. Morton, 256 F.3d 189, 197 (3d
Cir. 2001) (citations omitted). Moreover, the existence of an actual conflict and any
adverse effects from it are more likely to be apparent in cases in which counsel takes
positive steps on behalf of one client to the detriment of the other, as opposed to cases
involving the inaction and passivity of counsel. Id. This case presents at most one
involving multiple representation, and Tillery cites only a passive lapse of representation
by Santaguida. As such, to prove a Sixth Amendment violation premised on actual
conflict, Tillery must show: (1) a plausible, alternative defense strategy or tactic might
have been pursued that is of sufficient substance to be viable; and (2) the alternative
defense was inherently in conflict with or not undertaken because of the attorney’s other
loyalty or interest. See Gambino, 864 F.2d at 1070.
Tillery argues that Santaguida’s representation of Pickens in 1980 conflicted with
Tillery’s interest during his 1985 trial, and that this conflict manifested itself in
constitutionally defective representation. Specifically, Tillery accuses Santaguida of
failing to put forth his best effort to locate Pickens at the time of Tillery’s trial.

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Santaguida further declined to request a missing witness charge, which Tillery also
attributes to his alleged divided loyalties.
The record undermines Tillery’s claim of a debilitating conflict of interest. First,
Tillery has not succeeded in showing that the defense strategy of subpoenaing Pickens as
an exculpatory witness in his trial was a viable one. At the time Franklin’s trial
commenced in late 1980, Pickens could not be located. As Tillery admits, Santaguida
explained in 1985 that he was unaware of Pickens’ whereabouts, and that neither he nor
the Commonwealth could locate Pickens. Although he could not recall exactly what steps
he took in his attempts to contact Pickens, Santaguida testified that he did conduct a
search. He theorized that Pickens was making himself scarce to avoid testifying.
Significantly, even at the time that he provided advice to Pickens in 1980, and at all times
thereafter, Santaguida had no knowledge of his location. Tillery, contrarily, attested that
his counsel did not make every effort to locate Pickens. He did not, however, provide any
specific examples or support for this bald assertion.
Second, Tillery has not succeeded in showing that Santaguida owed a continuing
duty of loyalty to Pickens, that in turn prevented counsel from using his best efforts to
locate him. Santaguida’s representation of Pickens occurred five years prior to Tillery’s
trial, and likewise terminated before Tillery’s trial. At best, the record discloses that the
representation of Pickens was fleeting and minimal. When asked at the evidentiary
hearing if he ever represented Pickens, Santaguida responded that he did not believe that

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he represented him in a courtroom. Rather, based on his refreshed recollection, either
Pickens or someone acting on his behalf called him to obtain advice on testifying in the
Franklin case. Furthermore, he could not recall providing any additional legal services to
Pickens, and testified that no communication took place between them other than that one
instance. In his view, there was no conflict “because Mr. Pickens, number one, couldn’t
be found.” (App. at 181.) Contrary to Tillery’s claim, Santaguida never stated that, had
he found Pickens, he would have advised him not to testify in Tillery’s trial. There is not
a shred of evidence that Santaguida’s representation of Pickens continued past its brief
lifespan in 1980. In short, counsel did not actively represent competing interests.
Tillery has failed to convince us that an actual conflict of interest existed that
adversely impacted Santaguida’s performance. His claim that the record discloses that
Santaguida possessed a duty of loyalty to Pickens at the time he represented Tillery, and
that this duty of loyalty conflicted with his duty of loyalty to Pickens, is purely
speculative. Rather, the record plainly reveals a successive representation of two clients
with possible diverging interests. Not only was this scenario not addressed by the
Pennsylvania Lawyer’s Code of Professional Responsibility in effect at the time, compare
Pa. Lawyer’s Rules of Professional Conduct R. 1.9 cmt. (1988), but the Supreme Court
has made clear that the mere possibility of conflict is insufficient to demonstrate the
existence of an actual conflict, Cuyler, 446 U.S. at 350. There is no evidence that
Santaguida’s actions and inactions were influenced by loyalty to Pickens, or that he even

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maintained a loyalty to Pickens in 1985. Reliance upon the relationships created between
himself, Pickens, and Santaguida cannot, standing alone, suffice to demonstrate the
existence of an actual conflict of interest and adverse impact.
We conclude that Tillery’s trial counsel’s performance was not adversely affected
by Santaguida’s brief representation of Pickens. Tillery has not established that he was
prejudiced, and his claim is thus procedurally defaulted.
IV.
For the foregoing reasons, the judgment of the District Court entered on July 30,
2003, will be affirmed.

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