APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 94-cv-00237J) ARGUED NOVEMBER 20, 1997
Before: Scirica and Lewis, Circuit Judges, and POLLAK,*fn* District Judge.
The opinion of the court was delivered by: Lewis, Circuit Judge.
Gary Lee Hess appeals from the district court's denial of his petition, raising two related claims. First, he alleges that trial counsel's performance was deficient due to a decision not to call certain witnesses. Second, Hess contends that his lawyer labored under a conflict of interest caused by his simultaneous representation of the victims' father in another case, and that this conflict impermissibly tainted counsel's performance during Hess's trial. We conclude that Hess's attorney did not violate professional standards by not calling additional witnesses at trial. Because the record does not reveal whether Hess preserved his conflict of interest claim, however, we will remand the remainder of the case to the district court for consideration of whether this claim has been exhausted.
Hess was convicted of multiple counts of sexual misconduct with the minor children of his sister, Barbara Becker. Hess's brother-in-law, Thomas Becker ("Becker"), is the father of two of the victims. When Hess's case went to trial, his attorney, Mr. Ling, also represented Becker on unrelated drug charges. Hess asserts that due to a conflict of interest, Ling failed to interview potential witnesses who would have stated that Becker, not Hess, actually abused the victims. In particular, Hess alleges that Thomas Hafer, Becker's cousin, would have testified that Becker gave the children drugs and then sexually molested them. Hess also contends that Ling declined to investigate a supposed
deathbed statement by the children's mother, which inculpated her husband and suggested that he might have framed Hess.*fn1
Hess maintains that he asked Ling to call Becker and Hafer as witnesses. Ling declined to do so, and also did not investigate the possibility that Becker committed the acts of sexual abuse. In addition, Ling did not follow up on Hess's request that he interview co-workers who might support an alibi defense. As a result, Hess's defense consisted almost entirely of testimony from Hess himself and from his closest relatives.
We address first the claim that Ling's representation fell below objective standards of reasonableness because he did not present the testimony of certain witnesses of whom he was aware. "Because ineffective assistance of counsel claims present mixed questions of law and fact . . . review is plenary." United States v. Kauffman, 109 F.3d 186, 187 (3d Cir. 1997). A defendant who alleges that counsel was ineffective due to strategic errors must show both that the attorney's performance was lacking, and that this deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The potential witnesses whom Hess argues Ling should have interviewed and called fall roughly into two categories: alibi witnesses and witnesses who would have testified that someone other than Hess committed the abuse. Addressing the latter category first, we conclude that Ling was not ineffective because he failed to call witnesses who would have testified that either Thomas Becker or one of the children's babysitters sexually abused the victims. Our review of ineffective assistance of counsel claims does not permit us, with the benefit of hindsight, to engage in speculation about how the case might best have been tried. We therefore accord counsel's strategic trial decisions great deference. Because Ling's trial strategy allegedly resulted from incomplete investigation, however, his decisions are entitled to a lesser degree of deference. United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). ("While counsel is entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.") More specifically,
strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 1996) (quoting Strickland v. ...