     Case: 16-11641    Document: 00514767357       Page: 1   Date Filed: 12/19/2018




                      REVISED DECEMBER 19, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 16-11641                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                               December 13, 2018
UNITED STATES OF AMERICA,
                                                                  Lyle W. Cayce
             Plaintiff - Appellee                                      Clerk


v.

EMANUEL JAMES HARRISON, also known as E.J., also known as Chris,

             Defendant - Appellant




             Appeal from the United States District Court for the
                         Northern District of Texas


Before HAYNES, HO, and DUNCAN, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Under established Supreme Court precedent, the Sixth Amendment
entitles the accused to the effective assistance of counsel.           That right is
infringed if counsel simultaneously represents more than one client in the
same matter, and the multiple representation results in an actual conflict of
interest that adversely affects the representation of the accused. See, e.g.,
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
      That is precisely what Emanuel James Harrison alleges here. In support
of his 28 U.S.C. § 2255 motion seeking relief from his federal conviction,
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                                 No. 16-11641
Harrison presented evidence that his counsel advised one of his co-defendants
to plead guilty, prior to his own plea agreement—and that his counsel did so
in a manner that prejudiced Harrison’s defense.
      To be sure, it may turn out that there is an innocent explanation for what
his counsel did. The decision of the district court to deny relief to Harrison
under 28 U.S.C. § 2255 may be ultimately vindicated. But “a defendant who
objects to multiple representation must have the opportunity to show that
potential conflicts impermissibly imperil his right to a fair trial.” Id. And we
have repeatedly held that “‘[a] motion brought under 28 U.S.C. § 2255 can be
denied without a hearing only if the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief.’” United States v.
Cavitt, 550 F.3d 430, 442 (5th Cir. 2008) (quoting United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)).
      Based on established Supreme Court and circuit precedent, and the
evidence presented by Harrison, the magistrate judge should have held an
evidentiary hearing to give the parties the opportunity to contest the merits of
Harrison’s claim of an actual conflict of interest. Because no such hearing was
held, we reverse the judgment of the district court and remand the case for
further proceedings.
                                       I.
      Emanuel James Harrison pled guilty to conspiracy to defraud the United
States by filing false claims. His plea agreement provided for an 84-month
sentence. The district court re-arraigned Harrison in the same proceeding as
two of his co-defendants, Jason Altman and Fread Jenkins. The three co-
defendants all agreed that they were pleading guilty voluntarily and had not
been threatened, forced, or coerced.
      Five weeks later, Harrison filed a motion to withdraw his guilty plea,
asserting his innocence and arguing that his plea was not entered knowingly
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                                 No. 16-11641
and voluntarily due to pressure from counsel.       The district court denied
Harrison’s motion to withdraw his plea, finding, in relevant part, that his
assertion of innocence “without more” was insufficient to allow him to
withdraw his plea, and that Harrison had provided “no evidence as to the
pressure, threats, or intimidation.”
      At his sentencing hearing, Harrison argued that he received ineffective
assistance of counsel when counsel advised him to enter the plea agreement
despite his assertion of innocence because counsel believed he would be
prejudiced by a prior sexual assault conviction. Harrison did not mention that
one of his attorneys was allegedly burdened by an actual conflict of interest
due to his advising Jenkins regarding the plea agreements. The district court
denied his request to withdraw his guilty plea. With new counsel, Harrison
appealed. This court affirmed his sentence. See United States v. Harrison, 777
F.3d 227, 233 (5th Cir. 2015).
      Harrison subsequently filed a 28 U.S.C. § 2255 motion to vacate his
sentence on the grounds that he received ineffective assistance of counsel
because counsel pressured him to plead guilty rather than investigate his case,
and also because counsel had a conflict of interest—specifically, because
counsel also represented one of Harrison’s co-defendants, Jenkins, during plea
negotiations.
      Two sworn affidavits from Jenkins support Harrison’s claim of multiple
representation. But the magistrate judge found that the record contradicted
Harrison’s allegations of a conflict of interest, because Jenkins and his own
attorney signed Jenkins’s plea agreement on the day Harrison and Jenkins
were rearraigned.     The magistrate judge further concluded that, even
accepting his allegations, Harrison had not demonstrated ineffective
assistance of counsel, because he provided no more than a conclusory assertion
that counsel failed to pursue a defense strategy due to divided loyalties
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                                       No. 16-11641
between Harrison and Jenkins. The district court accepted the magistrate
judge’s findings and conclusions, denied the § 2255 motion, and denied the
request for a certificate of appealability.
       Harrison filed motions in this court for a certificate of appealability and
for leave to appeal in forma pauperis. A member of this court granted Harrison
a certificate of appealability on the issue whether the district court abused its
discretion by not holding an evidentiary hearing before denying his claim that
he received ineffective assistance of counsel due to a conflict of interest.
Harrison was also granted leave to appeal in forma pauperis.
                                              II.
       In an appeal from a denial of a § 2255 motion, we review a district court’s
decision not to grant an evidentiary hearing for abuse of discretion. Cavitt,
550 F.3d at 435. “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. Urias-Marrufo, 744 F.3d 361, 364 (5th Cir. 2014) (internal quotation
marks and citation omitted). A § 2255 motion requires an evidentiary hearing
unless either (1) the movant’s claims are clearly frivolous or based upon
unsupported generalizations, or (2) the movant would not be entitled to relief
as a matter of law, even if his factual assertions were true. United States v.
Guerra, 588 F.2d 519, 521 (5th Cir. 1979) (citing Holland v. United States, 406
F.2d 213, 216 (5th Cir. 1969)); Friedman v. United States, 588 F.2d 1010, 1015
(5th Cir. 1979). 1




       1 We note that Harrison’s ineffective assistance of counsel claim is properly raised in
his § 2255 motion because the relevant facts were not developed during his earlier
proceedings in district court. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)
(“Sixth Amendment claims of ineffective assistance of counsel should not be litigated on direct
appeal, unless they were previously presented to the trial court.”).
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                                       III.
      For multiple representation to violate the Sixth Amendment, there must
be an actual conflict of interest that adversely affects the representation.
Cuyler, 446 U.S. at 348; accord United States v. Culverhouse, 507 F.3d 888, 892
(5th Cir. 2007).      Under such circumstances, a “defendant need not
[additionally] show prejudice . . . because prejudice is presumed upon a
showing of an actual conflict that adversely affected representation.”
Culverhouse, 507 F.3d at 892 (citing Perillo v. Johnson, 205 F.3d 775, 781–82
(5th Cir. 2000)).
      We thus focus our inquiry on the existence of an actual conflict of
interest, and whether an evidentiary hearing could have proved such a conflict.
Harrison’s § 2255 motion alleged, in relevant part, that he received ineffective
assistance of counsel due to an actual conflict of interest, because his counsel
jointly represented one of Harrison’s co-defendants, Jenkins, during plea
negotiations. The magistrate judge reviewed the record and, without holding
an evidentiary hearing, concluded that Harrison’s allegations and Jenkins’s
corroborative affidavits “are belied by the record in Jenkins’s criminal case,
which reflects that Jenkins and Jenkins’s own counsel executed Jenkins’s plea
papers on August 2, 2013 . . . the same day that the Court conducted Jenkins’s
rearraignment hearing.” Harrison v. United States, No. 3:15-CV-1653-G-BN,
2016 WL 6471294, at *4 (N.D. Tex. Oct. 11, 2016), report and recommendation
adopted, No. 3:11-CR-339(03)-P, 2016 WL 6462048 (N.D. Tex. Nov. 1, 2016).
      We disagree. We do not see how the fact that Jenkins was represented
by one counsel precludes him from also being represented by other counsel.
After all, many litigants enlist more than one counsel to assist in their defense.
Two sworn affidavits by Jenkins state that Harrison’s counsel talked to
Jenkins and induced him into entering a plea bargain. That alone may not be
enough to establish an actual conflict of interest. But it evinces “something
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                                 No. 16-11641
more than a speculative or potential conflict.” Culverhouse, 507 F.3d at 892
(citing United States v. Infante, 404 F.3d 376, 391–92 & n.13 (5th Cir. 2005)).
Accordingly, the magistrate judge should have held an evidentiary hearing to
determine whether an actual conflict of interest existed in this case.
        As noted, “prejudice is presumed upon a showing of an actual conflict
that adversely affected representation.” Id. (citing Perillo, 205 F.3d at 781–
82).     Moreover, Harrison does not merely rest on the presumption of
prejudice—he also affirmatively alleges that his counsel’s conflict of interest
prejudiced him. According to Harrison’s theory of the case, backed by two
affidavits from Jenkins, his own counsel advised Jenkins to enter into a plea
agreement that explicitly pointed the finger at Harrison, presumably in
exchange for a more favorable plea for Jenkins. As a result, Harrison contends,
his own counsel prejudiced him by denying him the opportunity to plead guilty
first, before Jenkins did, so that Harrison could offer testimony against
Jenkins in exchange for a more favorable plea agreement for himself.
                                     ***
        The magistrate judge should have held an evidentiary hearing to
investigate Harrison’s allegations of an actual conflict of interest. Failure to
do so under the circumstances presented was an abuse of discretion under our
established precedents.    Accordingly, we reverse and remand the case for
further proceedings consistent with this opinion.




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