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- SUPREME COURT OF THE UNITED STATES
- JIMMIE BURDEN, Jr. v. WALTER ZANT, WARDEN
- on petition for writ of certiorari to the united
- states court of appeals for the eleventh circuit
- No. 92-8836. Decided January 10, 1994
-
- Per Curiam.
- In Burden v. Zant, 498 U. S. 433 (1991) (per
- curiam), we reversed a judgment of the Court of Appeals
- for the Eleventh Circuit, which had upheld denial of
- habeas relief on a claim of ineffective assistance of
- counsel due to conflict of interest. The case is before us
- again on a petition seeking review of the decision
- rendered on remand, 975 F. 2d 771 (CA11 1992), in
- which the Court of Appeals once again rejected Burden's
- claim that he had been deprived of the right to be
- represented by counsel free of conflict of interest.
- In our earlier unanimous per curiam opinion, we held
- that the courts below had failed to accord the presump-
- tion of correctness apparently due a state court determi-
- nation bearing on the conflict claim (i.e., that Dixon, the
- key prosecution witness allegedly represented by
- Burden's pretrial counsel, -was granted immunity from
- prosecution-), see 28 U. S. C. 2254(d). We directed the
- Court of Appeals on remand to evaluate Burden's
- conflict-of-interest claim -free from- the -erroneous
- failure to credit the state trial court's finding . . . .-
- 498 U. S., at 438.
- In the decision now before us, the Eleventh Circuit
- majority first held that there was no need for a federal
- habeas court to presume the correctness of the immunity
- finding, because it had not been -adequately developed-
- in the state trial court proceeding. See 28 U. S. C.
- 2254(d)(3). The majority reasoned that the trial court's
- conclusion, contained in an administrative report to the
- State Supreme Court, see Ga. Code Ann. 17-10-35(a)
- (1990), and not labeled a finding of fact or conclusion of
- law, amounted to the trial judge's mere personal
- -impression- on an issue not subject to significant
- dispute at trial. See 975 F. 2d, at 774-775. Declaring
- it -improper- to defer to the judge's -comment,- id., at
- 775, the Court of Appeals explained that it would uphold
- its prior denial of relief on the basis of a District Court
- finding, said to be that -Dixon did not testify under a
- grant of transactional immunity or pursuant to a
- promise that the State would not prosecute him.- Ibid.
- In a dissenting opinion, Judge Anderson maintained that
- the District Court's order contained no such finding and
- that his colleagues had overlooked the record of evidence
- strongly supporting Burden's contention that some sort
- of immunity deal had, in fact, been struck.
- Reviewing the record, we are convinced that Judge
- Anderson was correct, that the decision of the Court of
- Appeals was grounded on manifest mistake, and that
- reversal is warranted on that basis alone. We therefore
- grant the motion for leave to proceed in in forma
- pauperis and the petition for a writ of certiorari and
- reverse and remand for the Eleventh Circuit, or subject
- to its further order the district court, to determine
- whether Mr. Kondritzer's representation created -an
- actual conflict of interest adversely affect[ing] [his]
- performance.- Cuyler v. Sullivan, 446 U. S. 335, 350
- (1980).
- Reversed and remanded.
-