BURGER V. KEMP, 483 U. S. 776 (1987)

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U.S. Supreme Court

Burger v. Kemp, 483 U.S. 776 (1987)

Burger v. Kemp

No. 86-5375

Argued March 30, 1987

Decided June 26, 1987

483 U.S. 776


A Georgia trial court jury found petitioner guilty of murder and sentenced him to death. Both petitioner and a coindictee (Thomas stevens) gave full confessions to the crime, and Stevens was tried later in a separate trial. The Georgia Supreme Court, after ordering a second sentencing hearing for petitioner which resulted in reimposition of the death sentence, affirmed the sentence. Throughout the state court proceedings, petitioner was represented by appointed counsel, Alvin Leaphart, who was an experienced and well respected local attorney. After exhausting state collateral remedies, petitioner (represented by a different attorney) sought habeas corpus relief in Federal District Court on the ground that Leaphart's representation was constitutionally inadequate, particularly because of a conflict of interest, since Leaphart's law partner was appointed to represent Stevens at his trial, and Leaphart had assisted in that representation. At each trial, the defendant's strategy was to emphasize the coindictee's culpability in order to avoid the death penalty. Petitioner also based his Sixth Amendment claim of ineffective representation on Leaphart's failure to present any mitigating circumstances at the state court sentencing hearings and on his allegedly inadequate investigation of the possibility of doing so. After an evidentiary hearing, the District Court rejected the Sixth Amendment claim, and the Court of Appeals ultimately affirmed.


1. There is no merit to petitioner's ineffective assistance claim based on Leaphart's alleged conflict of interest. Even assuming that law partners are to be considered as one attorney in determining such a claim, requiring or permitting a single attorney to represent codefendants is not per se violative of constitutional guarantees of effective assistance of counsel. Any overlap of counsel did not so infect Leaphart's representation as to constitute an active representation of competing interests. Nor was an actual conflict established by the fact that Leaphart, who prepared the appellate briefs for both petitioner and Stevens, did not make a "lesser culpability" argument in petitioner's brief on his second appeal to the Georgia Supreme Court. That decision had a sound strategic basis and, as found by both the federal courts below, was not attributable to the fact that his partner was Stevens' lawyer, or to

Page 483 U. S. 777

the further fact that he assisted his partner in Stevens' representation. Moreover, the record did not support petitioner's contention that, because of the asserted actual conflict of interest, Leaphart did not negotiate a plea bargain for a life sentence (the prosecutor, in fact, having refused to bargain) or to take advantage of petitioner's lesser culpability when compared to Stevens'. Pp. 483 U. S. 783-788.

2. Nor did petitioner receive ineffective assistance because of Leaphart's failure to develop and present any mitigating evidence at either of the two state court sentencing hearings. The evidence that might have been presented would have disclosed that petitioner had an exceptionally unhappy and unstable childhood. Based on interviews with petitioner, his mother, and others, Leaphart decided that petitioner's interest would not be served by presenting such evidence. His decision was supported by reasonable professional judgment, and thus met the standard set forth in Strickland v. Washington, 466 U. S. 668. Pp. 483 U. S. 788-795.

785 F.2d 890, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and WHITE, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, and in Part II of which POWELL, J., joined, post, p. 483 U. S. 796. POWELL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 483 U. S. 817.

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