No Presumption of Prejudice Under Sullivan for Third-Party Financed Counsel Conflicts

Introduction

This commentary examines the Eleventh Circuit’s decision in Nicholas Bernard Acklin v. Commissioner, Alabama Department of Corrections (11th Cir. Dec. 12, 2024). At trial Mr. Acklin was convicted of capital murder for his role in a 1996 hostage‐torture and shooting rampage that left four people dead and two wounded. He was sentenced to death. During the two-year preparation for trial, defense counsel was paid only in small monthly increments by Mr. Acklin’s parents—principally his mother, Ms. Velma Acklin, and on occasion his father, Mr. Theodis “Ted” Acklin. Two days before trial, Ms. Acklin revealed that Mr. Acklin’s father had physically and verbally abused the family for years. When counsel attempted to introduce that evidence in the penalty phase, Mr. Acklin’s father threatened to “be done” with his son and withdraw financial support. Counsel then sought and obtained a written instruction from Mr. Acklin forbidding mention of the domestic‐abuse evidence.

After exhausting state post-conviction review, Mr. Acklin filed a federal habeas petition under 28 U.S.C. § 2254 asserting that, under Cuyler v. Sullivan, 446 U.S. 335 (1980), the financial conflict created by a third-party payor triggered a presumption of prejudice. The Eleventh Circuit affirmed the district court and the state courts, holding that Sullivan’s presumption applies only to conflicts arising from concurrent representation of co‐defendants, not to third-party financial conflicts. The court also held that even under Strickland v. Washington, 466 U.S. 668 (1984), Acklin failed to show a reasonable probability of a different outcome had domestic-abuse evidence been offered.

Summary of the Judgment

The Eleventh Circuit held that Sullivan’s rule of presumed prejudice does not clearly extend to financial conflicts caused by third-party payors.
Under AEDPA, the state appellate court’s refusal to apply Sullivan to a third-party financial conflict was neither contrary to nor an unreasonable application of clearly established federal law.
Even if Sullivan applied, the state court reasonably found (a) no “actual conflict” because the father’s threat was not an unambiguous promise to withhold fees, and (b) no “adverse effect” on counsel’s performance because counsel worked diligently throughout and the only barrier to presenting domestic-abuse evidence was Mr. Acklin’s express instruction against it.
As a fallback, the court concluded under Strickland that there was no reasonable probability the penalty-phase result would have been different even if the domestic-abuse evidence had been admitted.

Analysis

1. Precedents Cited

Cuyler v. Sullivan (446 U.S. 335, 1980): established a presumption of prejudice when counsel has an “actual conflict” in cases of multiple concurrent representation.
Mickens v. Taylor (535 U.S. 162, 2002): clarified that Sullivan’s presumed‐prejudice rule is limited to concurrent representation contexts; it “does not expressly support” other conflicts.
Wood v. Georgia (450 U.S. 261, 1981): remanded for a hearing on possible third-party payor conflicts but did not adopt a presumption of prejudice outside multi‐defendant representation.
Schwab v. Crosby (451 F.3d 1308, 11th Cir. 2006): adopted Mickens’ limitation of Sullivan to multiple representation and refused to extend a presumption to other conflicts.
Downs v. Sec’y, Fla. Dep’t of Corr. (738 F.3d 240, 11th Cir. 2013): held that Sullivan was not clearly established law for contingency‐fee conflicts and that financial conflicts outside Sullivan’s fact pattern require a showing of actual prejudice under Strickland.

2. Legal Reasoning

The court applied the Antiterrorism and Effective Death Penalty Act (AEDPA) standard, under which federal habeas relief is available only if the state court’s decision was contrary to or an unreasonable application of clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts.

The Eleventh Circuit concluded:

Sullivan’s presumption of prejudice is not “clearly established” for conflicts outside multiple‐defendant representation. The Supreme Court itself in Mickens expressed that extension of Sullivan beyond that context was an “open question.”
Even if Sullivan could apply to a third‐party financial conflict, the state appellate court reasonably found no “actual conflict” because (a) the father’s comments were not an explicit threat to withhold counsel’s fees, and (b) counsel already knew by trial time that they were unlikely ever to be paid in full.
The state court also reasonably found no “adverse effect” on counsel’s performance: trial counsel pursued vigorous investigation, motion practice, expert and character witnesses, and the only reason domestic-abuse evidence was not offered was Mr. Acklin’s own written instruction against it.
Under Strickland, the “totality of the mitigation evidence” did not create a reasonable probability of a different outcome in the penalty phase, given the proven aggravating circumstances.

3. Impact

This decision confirms that:

The Supreme Court’s Sullivan presumption remains constrained to multiple concurrent‐representation conflicts unless and until the Court clearly extends it to other contexts.
Claims of counsel conflicts arising from third-party financial arrangements must be evaluated under Strickland’s prejudice requirement, not under a Sullivan‐style presumption.
State appellate factual findings about undisclosed threats, payment history, and client instructions carry AEDPA deference and are difficult to overcome on federal habeas.
Defense teams and indigent clients can no longer rely on a per se rule of presumed prejudice when counsel’s fees come from third parties; they must show a reasonable probability of a different result.

Complex Concepts Simplified

Sullivan Presumption: In multi‐defendant cases, if counsel has a conflict, prejudice to the defendant is presumed. Sullivan does not on its face cover other kinds of conflicts.
AEDPA Deference: Federal courts must defer unless a state court decision is “so lacking in justification that there is no possibility for fair‐minded disagreement.”
Actual vs. Possible Conflict: You must show a real, concrete conflict that affected strategy, not just a theoretical clash of interests.
Strickland Test: To win on an ineffective‐assistance claim, a defendant must show both (1) counsel’s performance was unreasonably poor, and (2) a reasonable probability that the outcome would have been different.
Third-Party Payor Conflict: Occurs when someone other than the client pays counsel’s fee and tries to influence trial decisions.

Conclusion

The Eleventh Circuit’s decision in Acklin narrows the scope of Cuyler v. Sullivan, reinforcing that only concurrent‐representation conflicts yield a presumption of prejudice. Financial conflicts involving third-party payors must be analyzed under Strickland’s prejudice requirement. Mr. Acklin could not overcome AEDPA’s deferential standards to show that Sullivan clearly applied or that the state court’s findings were unreasonable. This ruling underscores the importance of clear Supreme Court guidance before extending special rules of presumed prejudice to new categories of attorney conflicts.