446 U.S. 335 (1980)
Respondent John Sullivan was indicted with Gregory Carchidi and Anthony DiPasquale for the first-degree murders of John Gorey and Rita Janda.1 The victims, a labor official and his companion, were shot to death in Gorey’s second-story office at the Philadelphia headquarters of Teamsters’ Local 107.2 Francis McGrath, a janitor, saw the three defendants in the building just before the shooting; they appeared to be awaiting someone and encouraged McGrath to do his work on another day, but he ignored their suggestions.3 Shortly afterward Gorey arrived, McGrath heard sounds like firecrackers, Carchidi directed McGrath to leave and say nothing, and the defendants were gone when McGrath returned fifteen minutes later.4
Two privately retained lawyers, G. Fred DiBona and A. Charles Peruto, represented all three defendants throughout the state proceedings.5 Sullivan had different counsel at the medical examiner’s inquest but thereafter accepted representation from the two lawyers retained by his codefendants because he could not afford to pay his own lawyer.6 Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of McGrath’s testimony. At the close of the Commonwealth’s case the defense rested without presenting any evidence.7
The jury found Sullivan guilty and fixed his penalty at life imprisonment.8 Sullivan’s codefendants were acquitted at separate trials.9 Sullivan petitioned for collateral relief under the Pennsylvania Post Conviction Hearing Act. He alleged that he had been denied effective assistance of counsel because his defense lawyers represented conflicting interests.10 In five days of hearings the Court of Common Pleas heard evidence from Sullivan, Carchidi, Sullivan’s lawyers, and the judge who presided at Sullivan’s trial.11 The lawyers gave conflicting accounts of their roles at the three trials and of the decision to rest Sullivan’s defense.12
The Court of Common Pleas granted Sullivan a second direct appeal but did not pass directly on the conflict claim.13 The Pennsylvania Supreme Court affirmed both the original conviction and the denial of collateral relief, finding no dual representation in the true sense of the term and that resting the defense was a reasonable tactic.14 Having exhausted state remedies, Sullivan sought habeas corpus relief in the United States District Court for the Eastern District of Pennsylvania.15 A magistrate found that defense counsel had represented conflicting interests, but the district court accepted the Pennsylvania Supreme Court’s conclusion that there had been no multiple representation and no conflict.16 The Court of Appeals for the Third Circuit reversed, holding that the lawyers had represented all three defendants as a matter of law and that a showing of possible conflict sufficed to prove a violation.17 The Supreme Court granted certiorari.18
Whether the Pennsylvania Supreme Court’s conclusion that defense counsel had not undertaken multiple representation is a finding of fact entitled to a presumption of correctness under 28 U.S.C. § 2254(d)?19
Section 2254(d) presumes correct only basic, primary, or historical facts such as external events and credibility determinations, not mixed questions of law and fact that require applying legal principles to those historical facts.20
No. The Pennsylvania Supreme Court’s holding that DiBona and Peruto did not engage in multiple representation constitutes a mixed determination of law and fact. The facts concerning the roles the lawyers played in the defenses of Sullivan and his codefendants qualify as historical facts.21 Yet the legal conclusion that those roles did not amount to multiple representation applies legal principles to the historical facts of this case.22 That holding remains open to review on collateral attack in federal court.23
The Pennsylvania Supreme Court’s conclusion is not a finding of fact entitled to the presumption of correctness under 28 U.S.C. § 2254(d).24
Whether the alleged failure of retained counsel to provide adequate representation can render a state criminal trial fundamentally unfair in violation of the Fourteenth Amendment?25
A state criminal trial constitutes state action under the Fourteenth Amendment, the Sixth Amendment right to counsel applies equally to retained and appointed counsel, and inadequate assistance by retained counsel can render the trial fundamentally unfair in violation of due process.26
Yes. Sullivan retained his own lawyers yet claimed that a conflict of interest hampered their advocacy without alleging that state officials knew or should have known of the conflict.27 Because the state itself initiates and conducts the criminal trial, the state unconstitutionally deprives the defendant of liberty when the trial occurs without the adequate legal assistance guaranteed by the Sixth Amendment.28 No distinction exists between retained and appointed counsel for purposes of this constitutional protection.29
The alleged failure of retained counsel to provide adequate representation can render a state criminal trial fundamentally unfair in violation of the Fourteenth Amendment.30
Related opinions on this issue
Justice Brennan agreed with the Court that the alleged failure of retained counsel involves state action.31 He could not join Part IV because Holloway requires the trial judge to play a positive role in ensuring that any choice of joint representation is knowing and intelligent.32 The court cannot safely assume that silence indicates a knowledgeable choice to proceed jointly.33
Upon discovery of joint representation the duty of the trial court is to ensure that defendants have not unwittingly given up their right to effective counsel by affirmatively advising them of the potential hazards.34 No evidence showed that the court advised Sullivan about the potential for conflict or that he made a knowing choice. Brennan would remand to allow petitioners an opportunity to rebut the presumption that representation in fact suffered.35
Whether a state trial court must inquire into the propriety of multiple representation when no party objects?36
Trial courts possess no affirmative constitutional duty to inquire into the propriety of multiple representation absent an objection or special circumstances that would put the court on notice that a particular conflict exists.37
No. No participant in Sullivan’s trial ever objected to the multiple representation.38 The provision of separate trials for Sullivan and his codefendants significantly reduced the potential for a divergence in their interests.39 Counsel’s critical decision to rest Sullivan’s defense appeared on its face to be a reasonable tactical response to the weakness of the circumstantial evidence presented by the prosecutor.40 On these facts the Sixth Amendment imposed upon the trial court no affirmative duty to inquire into the propriety of multiple representation.41
A state trial court need not inquire into the propriety of multiple representation when no party objects.42
Whether a defendant who raised no objection at trial to multiple representation must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance to establish a violation of the Sixth Amendment?43
A defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance; the mere possibility of conflict is insufficient to impugn the conviction.44
Yes. Sullivan emphasized Peruto’s admission that the decision to rest the defense reflected reluctance to expose witnesses who might later testify for the codefendants.45 The Court of Appeals granted relief on a showing of possible conflict alone.46 Because the Court of Appeals did not weigh the conflicting contentions under the proper legal standard requiring an actual conflict that adversely affected performance, its judgment must be vacated and the case remanded.47
A defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance to establish a violation of the Sixth Amendment.48
Related opinions on this issue
Justice Marshall agreed that the Court of Appeals correctly found multiple representation and that ineffective assistance by retained counsel involves state action.49 He dissented from the standard requiring a defendant to show that an actual conflict adversely affected performance.50 An actual relevant conflict of interests negates the unimpaired loyalty the defendant is constitutionally entitled to receive.51
Requiring a further showing that the conflict changed the attorney’s conduct is unduly harsh and incurably speculative.52 In the present case Peruto’s testimony would suffice under even a restrictive reading, yet in many cases the effects of the conflict will not be discernible from the record.53 Marshall would affirm the judgment of the Court of Appeals.54