21 F. 3d 1446 - Sanders v. Ratelle E

Sheldon's first attorney initially was retained by Xavier, Sheldon's brother, in connection with the same incident as that for which petitioner was charged, namely, the shooting of Norman Gregory.

Conflicts of interest can arise both in cases of simultaneous representation and successive representation, though it generally is more difficult to demonstrate an actual conflict resulting from successive representation. Mannhalt, 847 F.2d at 580....

... In successive representation, "conflicts of interest may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties." Mannhalt, 847 F.2d at 580. Among the dangers in a successive representation situation is that the attorney who has obtained privileged information from the former client may fail to conduct a rigorous cross-examination for fear of misusing that information. United States v. Agosto, 675 F.2d 965, 971 (8th Cir.1982).

Fitzpatrick, 869 F.2d at 1252. Here, as in Fitzpatrick, Sheldon's first attorney successively represented two different clients, each of whom was a prime suspect for the role of the killer. It is true that Sheldon's first attorney only served as counsel for Xavier for a brief period; however, if, during that brief time, Xavier indeed confided his guilt to the attorney, then the question arises as to whether the attorney subsequently was incapable of mounting an adequate defense on behalf of Sheldon.

The first attorney's transfer of Xavier's retainer, with the latter's approval, for use in the defense of Sheldon raises a further question as to which master Sheldon's first attorney felt bound to serve. Nor does the fact that one or both of Sheldon's parents may have assumed responsibility for all or some of the remainder of the first attorney's fee alleviate this concern. Indeed, it is not hard to imagine the potential for conflicting pressures upon an attorney from parents concerned with protecting not only one, but two of their sons, even though the record itself gives no actual indication of Sheldon's first attorney having been subjected to any such pressure.

In this case, the adverse impact upon Sheldon of his first attorney's conflicting loyalties is strongly indicated by that attorney's advice to Xavier to assert his Fifth Amendment right not to testify during Sheldon's trial. Thus, in effect, Sheldon's first attorney counseled a key--perhaps the key--witness not to offer testimony which seemingly would have exculpated his client, the defendant, Sheldon. Such behavior could have stemmed from the first attorney's continuing sense of obligation to Xavier. But such conduct, if it in fact occurred for that reason, clearly violated that attorney's duty to Sheldon. And, of course, that is true even if the attorney concluded that he (the attorney) could "have his cake and eat it, too," by arguing Xavier's guilt to the jury in an attempt to exonerate Sheldon while at the same time preventing Xavier from incriminating himself. Indeed, Sheldon's first attorney partially succeeded during the first trial in accomplishing just that, by gaining an evenly split jury and consequent mistrial for Sheldon and keeping Xavier from incriminating himself.

Jefferson's conduct of the case must be reviewed in the context of the first trial and what Sheldon's first attorney did therewith. To begin, when Sheldon's first attorney elected to spare Xavier from testifying in favor of an argument that Sheldon was not at the site of the shooting, he left the second defense lawyer with severely circumscribed choices, if the lawyer knew all the facts. If Xavier testified in the second trial that he was the shooter, it would undercut the alibi defense since Xavier said one of the people with him was Kelvin, who was an alibi witness at the first trial. The other person with Xavier was Sheldon, who was home playing cards according to the alibi witnesses. The carry-over effect of the first attorney's refusal to call Xavier as a witness during the first trial prejudiced Sheldon at the second trial by making it difficult to pursue that defense. Further, Jefferson did not even interview Xavier in order to ascertain the content and veracity of Xavier's story or to determine whether Xavier would have been willing to testify during the second trial. Consequently, Jefferson did not know that Xavier's story would contradict the alibi defense. Even if Jefferson was fully aware of Xavier's confession, he should have spoken directly with Xavier in order to obtain potentially helpful details of the incident and to explore Xavier's willingness to testify.8 Also, Jefferson should have asked Xavier to record a statement confessing to the murder, or at least discussing the incident, as Klein later did.9

As respondent has suggested, Jefferson may have shied away from calling Xavier to testify during the second trial because he (Jefferson) was fearful that Xavier would have lied on the witness stand in order to help Sheldon. If so, after interviewing Xavier, Jefferson could have decided what he, as an attorney, then was required to do or not to do. That is particularly true in the face of Mrs. Sanders' seemingly simple and unequivocal statement to Jefferson that Xavier had told her that he, Xavier, not Sheldon, had fired the rifle.

The key question, if any, left open at the first trial was whether or not Sheldon was the shooter, not whether or not Sheldon was present. The alibi defense pursued by Jefferson, under those circumstances, was not very persuasive, and the defense that Xavier was the shooter obviously would have been more effective if Xavier himself so had testified. Thus, Jefferson's failure to interview Xavier prevented Jefferson from learning of all possible facts which would have been helpful to the defense in the second trial, both with regard to the identity of the shooter and in exposing the weakness of the alibi defense. In that context, we cannot credit Jefferson with making a sound tactical choice not to call Xavier as a witness in the second trial. Only the tug of conflicting interests of the various members of the Sanders family reasonably can explain that decision. Jefferson, in our view, was dominated by loyalties to Xavier and to the family.

During the state habeas evidentiary proceeding, Abramson, former counsel for Sheldon, offered testimony regarding statements allegedly made to her by Jefferson. Those statements were admitted by the referee over the hearsay objection of the government.10 According to testimony offered into evidence during the state habeas evidentiary proceeding, Jefferson told Abramson, after she reminded Jefferson that he was not representing Xavier during the trial, that he "didn't see any reason to get Xavier involved" and felt he was "representing the family." The short answer to that remark is that, regardless of any sense of obligation by Jefferson to Xavier and/or to the Sanders family, if that impulse impeded his vigorous, undiluted representation of Sheldon, Jefferson had no choice but to respect and perform his duty to Sheldon.11 That is particularly true in this case, in which the record includes evidence making it quite probable that, in fact, Xavier committed the murder. While Xavier's testimony might have damaged Sheldon's other defenses by contradicting both Sheldon's "inside shot" defense and the testimony of one or more of Sheldon's alibi witnesses, such potential harm would appear far outweighed by the enormous need to present the testimony of a witness who specifically claimed responsibility for the murder. Under the circumstances of this case, we cannot avoid the conclusion that Jefferson's representation of Sheldon was adversely affected by the conflicts of interest which faced Jefferson, as well as by those facing Bledstein.

We are confronted here with that rare case in which a petitioner has demonstrated a substantial possibility of actual innocence. Petitioner's two trial attorneys were each subject to and displayed substantial conflicting loyalties which impaired their representations of Sheldon Sanders. While the conflict of Sheldon's first attorney played a part in connection with the second trial, since it was an element of the historical scene which faced Jefferson when he entered the case, it is Jefferson's role on which we principally focus in deciding to grant federal habeas relief to Sheldon Sanders.

Our decision to grant habeas relief is also based on a second and independent ground--ineffective assistance of counsel. Jefferson's representation of Sheldon evidenced a gargantuan indifference to the interests of his client and clearly prejudiced his client's defense. As we stated in Part I, it is quite possible that an innocent man was convicted of murder. It is fortunate that, although murder is a capital offense in California, this appeal does not involve the imposition of the death penalty. It is also fortunate that Sheldon ultimately was afforded the services of a competent lawyer.INEFFECTIVE ASSISTANCE OF COUNSEL

A. Failure to Provide Competent Representation

Sheldon's brother, Xavier Sanders, confessed on several occasions that he, not Sheldon, was the murderer. These confessions were not belated efforts designed to save a brother who had been convicted. They were made from the very inception of these proceedings, and are all internally consistent. Xavier declared unequivocally that he was the one who shot the deceased.

In spite of Xavier's confession, Sheldon's attorney Philip Jefferson did not interview him. Nor did he call Xavier as a witness during the trial. Nor did he seek to introduce his out-of-court confessions in lieu of testimony. In fact, when Xavier came to Jefferson's office to tell him what had actually happened, Jefferson was not willing to see him or to speak with him--and when Xavier appeared at the trial, possibly to testify, Jefferson directed him to leave the courthouse as quickly as possible.

The Government claims that Jefferson's conduct was not due to incompetence, but the result of Jefferson's "strategic" decision about how best to represent his client, Sheldon. This argument makes little sense: Jefferson failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer and whether to call Xavier as a witness. Describing Jefferson's conduct as "strategic" strips that term of all substance.

A lawyer's first duty is zealously to represent his or her client. Given this obligation, Jefferson's refusal even to listen to critical information from a key exculpatory witness regarding the basis of his client's most important defense cannot be deemed a permissible strategy. There is simply nothing in the record, apart from the fact of Jefferson's incompetence, that suggests even a colorable explanation for his conduct.12

Although there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "[j]udicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 689, 104 S.Ct. at 2055, counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client. Id. at 691, 104 S.Ct. at 2066 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). Thus, we have found counsel to be ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so. See Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir.1992) (vacating the judgment of the district court where it is not possible to "determine if counsel's decision was a strategic one, and, if so, whether the decision was a sufficiently informed one"); U.S. v. Burrows, 872 F.2d 915, 918 (9th Cir.1989) (holding counsel's conduct deficient where he failed to investigate a possibility of a mental illness defense and the "district court's assumptions that the attorney must have considered an insanity defense and might have rejected it for strategic reasons appear not to have been based on the record"); Deutscher v. Whitley, 884 F.2d 1152, 1160 (9th Cir.1989) (holding that counsel did not make a strategic decision where the defense was based on petitioner's psychiatric problems, yet counsel failed to "even consider investigating evidence which would have bolstered that defense"), vacated on other grounds, --- U.S. ----, 113 S.Ct. 367, 121 L.Ed.2d 279 (1992); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir.1988) (holding that a failure to investigate a possibility of mental impairment "cannot be construed as a trial tactic" where he did not even bother to view relevant documents that were available).

Other Circuits agree that the failure to conduct a reasonable investigation constitutes deficient performance. The Third Circuit has held that "[i]neffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made." See U.S. v. Gray, 878 F.2d 702, 711 (3d Cir.1989). A lawyer has a duty to "investigate what information ... potential eye-witnesses possess[ ], even if he later decide[s] not to put them on the stand." Id. at 712. See also Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir.1986) ("Neglect even to interview available witnesses to a crime simply cannot be ascribed to trial strategy and tactics."); Birt v. Montgomery, 709 F.2d 690, 701 (7th Cir.1983), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984) ("Essential to effective representation ... is the independent duty to investigate and prepare.").

Under any of the formulations offered by the circuit courts, Jefferson failed to fulfill his duty to investigate Sheldon's most important defense: that Xavier was the shooter. According to the undisputed evidence in the record, Jefferson not only did not interview Xavier about whether he committed the murder, but he did not seek to question him about his admission to his mother that he fired the shot; nor did he make any effort to ascertain whether Xavier had confessed these same facts to other people whose testimony might be used in the event Xavier ultimately decided to invoke the Fifth Amendment. Jefferson would not even talk to Xavier when the latter came to his office, and peremptorily ordered him to leave when he appeared at the trial. Whatever decision Jefferson might have made about calling Xavier as a witness was not an informed one and thus could not be deemed "strategic."13

Second, Jefferson failed to do what any competent lawyer would do when a witness indicates directly or indirectly that he, and not the lawyer's client, is guilty. He did not attempt to obtain a statement from Xavier confirming his admission of guilt. Had Jefferson done so, he might very well have obtained a confession similar to the written declaration that accompanied the habeas petition to the California Court of Appeals, or the taped interview Xavier voluntarily gave to lawyer Rowan Klein before the state evidentiary hearing. A written or taped statement by Xavier would have provided powerful evidence of Sheldon's innocence, and could have been introduced as a declaration against penal interest, even if Xavier ultimately decided to invoke the Fifth Amendment at the second trial.

Third, Jefferson failed to offer into evidence Xavier's extra-judicial admission that he was the shooter. The court-appointed criminal defense expert at the state evidentiary hearing, Paul Fitzgerald, testified that Xavier's admissions, as well as his potential testimony, constituted a powerful defense and that there was no conceivable strategic or tactical reason not to use this evidence at the second trial.

The defenses used in the second trial were 1) alibi, 2) Gregory was shot from inside the house by an unknown gunman, and 3) mistaken identification. The alibi witnesses offered contradictory testimony and were simply not credible. The "shot from inside the house" theory was even less plausible--the state's ballistics experts made short shrift of this defense when they proved the absence of gunpowder or stipling inside the house. The mistaken identification defense, however, had merit--three of the five eyewitnesses had at one time identified Xavier as the shooter. According to the expert, Fitzgerald, a mistaken identity defense is rarely successful when the accused has a motive, and Sheldon had a motive in this case: he had been assaulted earlier in the day of the murder by Norman Gregory and one of his brothers. However, unlike in other mistaken identity cases, the "other person" also had a motive--earlier that day the Gregory brothers had hurled stones at the BMW Xavier usually drove and cracked its windshield. Mistaken identity would have been a plausible, and, quite possibly a successful, defense if Xavier had admitted to the shooting at trial or his admissions had been introduced in lieu of such testimony. Accordingly, Jefferson's failure to call Xavier as a witness or to introduce his admissions, so as to provide Sheldon's mistaken identification defense with its most powerful possible support, constitutes a strong basis for finding his representation of Sheldon ineffective.

The state contends that Jefferson's failure to introduce Xavier's testimony was a permissible strategic decision because Jefferson knew (without talking to him, of course) that Xavier would invoke the Fifth Amendment if called to testify. There is simply no specific support in the record for this contention. The state also urges that Xavier's out-of-court confessions to his mother and to his first attorney would have been excluded as inadmissible hearsay. According to the state, Xavier's out-of-court confessions were not admissible under the hearsay exception for statements against penal interest for two closely related reasons: 1) they were not credible because eyewitnesses had testified that Sheldon was the shooter, and 2) they were not against Xavier's penal interest because if he was tried for the murder in his brother's place, he could always retract his statement by saying that he "was only trying to help [his] little brother." These arguments are speculative and unpersuasive.

Under the exception to the hearsay rule for statements against penal interest, Xavier's out-of-court declarations were admissible in evidence if 1) he was unavailable, and 2) his statements "so far ... subjected him to the risk of civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true." Calif.Evid.Code Sec. 1230 (West, 1994). The exception is applied in light of constitutional concerns regarding the exclusion of exculpatory evidence. In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the state of Mississippi argued that an extra-judicial confession by "another person" should be excluded as hearsay. The state courts agreed. The Supreme Court reversed, declaring that where a statement substantially implicates the declarant's penal interest, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302, 93 S.Ct. at 1049.

Under California law a witness who takes the Fifth Amendment is "unavailable." Thus, in Xavier's case, the first requirement would have been met if he refused to testify. The state does not dispute this point. As to the second requirement, the facts and circumstances in the record clearly demonstrate that Xavier's confession was substantially against his penal interest and would almost certainly have subjected him to a significant risk of serious criminal liability. In his confession Xavier admitted to every element necessary to a murder conviction. As noted earlier, moreover, three of the five eyewitnesses--including Raynetta Sanders, who had the only unobstructed view of the shooter and who knew the Sanders brothers best--at some point identified Xavier as the shooter. Notwithstanding the unexplained change in these witnesses' stories, their earlier identification of Xavier made it likely that any confession by him would result in a murder prosecution.

It is not only the risk of prosecution for murder that would tend to make any confession by Xavier credible. Unlike his brother Sheldon, Xavier had a criminal record. Accordingly, if convicted, Xavier likely would have received an even longer prison sentence than the seventeen years to life meted out to his brother. This fact adds significantly to the credibility of his confession.

The confession's credibility is supported by more than the fact that Xavier's admissions subjected him to a substantial risk of criminal liability, with the most serious consequences. There are, for example, the initial eyewitness statements that tended to corroborate his statements. There is also the evidence that provides a motive on Xavier's part; and there is, in addition, the fact that the confession was repeated a number of times both to his lawyers and to his mother, commencing with the day of the shooting. In sum, the state has simply no basis for contending that Xavier's confession would not have put him in serious jeopardy, that it was without credibility, or that it would for any reason have been inadmissible under California's hearsay exception for statements against penal interest.14

Finally, the state also contends that Jefferson decided not to investigate and use Xavier's confession because Sheldon was effectively "tied" to the alibi and inside shot defenses that he presented in his first trial. Admittedly, Xavier's confession was inconsistent with those two defenses, and the state properly notes that had Jefferson successfully introduced either Xavier's testimony or his out-of-court declarations, they would have been "destroyed." What the state fails to acknowledge, however, is that Sheldon's alibi and inside shot defenses were so weak that the state was able to "destroy" them at the second trial without any assistance from Xavier. The only plausible defense in the second trial was mistaken identification, and Xavier's testimony would have been most probative of that defense. We cannot assume that the jury would have disbelieved Xavier's confession simply because he was Sheldon's brother or because other relatives had falsely tried to offer Sheldon an alibi in the first trial. It is one thing for Sheldon's relatives to provide Sheldon with an alibi and take the risk of a possible perjury indictment, knowing that the prosecution would be unlikely to bring such charges. It is quite another for Xavier, a convicted felon, to lie about committing a murder and thereby expose himself to the prospect of a lifetime prison term or worse.

In short, the only reasonable strategy available to Jefferson at the second trial was to pursue what clearly appeared to be the only plausible scenario, as well the only viable defense--to drop the alibi and inside shot theories and to concentrate his full force on mistaken identity. In order to present an effective defense, Jefferson had to try to obtain Xavier's direct testimony, to attempt to introduce Xavier's confession, and to admit if necessary that the reliance of Sheldon's first attorney on the false alibi testimony in the first trial was an error.15 But all of this was contingent on Jefferson's being willing to investigate the facts and to listen to and memorialize Xavier's confession. Without that investigation, Jefferson could not even properly determine what defense to try to put on. Jefferson's failure to investigate is inexplicable, as is his failure to utilize Xavier's confession, except as the result of incompetence and indifference. See n. 1, supra.

Even if the state's assertion that Jefferson was "tied" to the alibi and inside shot defenses presented by Sheldon's attorney in the first trial were correct, Jefferson's failure to investigate, and specifically to interview Xavier, surpasses comprehension. It appears from the record that at the point that Jefferson refused to interview Xavier, Jefferson was not even aware whether either Sheldon or Xavier had been present at the scene of the shooting. As far as Jefferson knew, Xavier could have offered evidence directly supporting the alibi defense. Accordingly, Jefferson should have interviewed Xavier when Xavier came to his office, if for no other reason than to ascertain whether Xavier could be a useful alibi witness. Jefferson's failure to investigate whether crucial evidence existed in support of the defense, whatever it was, demonstrates conclusively that Jefferson was not thinking "strategically," but was simply not thinking at all--or was just plain not interested.

The swarm of detail involved in this case may serve momentarily to obscure the simple fact of Jefferson's willful non-feasance. It is beyond dispute, however, that Jefferson's behavior was unconscionable--above all, because he violated his elementary obligation to inquire into both the facts and the law before determining what was in his client's best interest. To refuse to listen to another person's confession to a crime one's client is accused of committing is unfathomable. Moreover, it is rarely a good strategic decision to advance a transparent lie as your client's primary defense, and certainly not when there is a far more plausible defense available. What makes Jefferson's behavior so inexplicable is that he was presented with an opportunity to obtain exculpatory evidence of critical import to his client, evidence that strongly suggested the most viable defense his client possessed--mistaken identity--and he refused to lift a finger to secure it, or even to ascertain its validity.

There are two related and compelling explanations for Jefferson's failure to investigate the case, to interview Xavier, and to use Xavier's admissions in Sheldon's defense: 1) Jefferson's general incompetence and indifference to the interests of his clients, evidenced by his subsequent disbarment for a similar "course of conduct" (See In the Matter of: Philip Jefferson, case 83-0-11184, Calif. Bar Court, March 5, 1989 (appended to People v. Sanders, 221 Cal.App.3d 350, 424, 271 Cal.Rptr. 534 (2d Dist.1990))); and 2) Jefferson's conflict of interest in this case, evidenced by his statement to attorney Leslie Abramson that "I felt that I was representing the family." The former explanation comes into sharp focus when we review Jefferson's earlier conduct.

On April 20, 1990, Jefferson was "disbarred from the practice of law ... [for] a course of conduct demonstrating a complete indifference to his legal and ethical duties, to the great detriment of his clients." Id. The California State Bar Court findings of a "course of conduct" were based, in turn, on specific instances of "complete indifference" and "great detriment" to clients stretching from 1979 through at least 1987. In most of these instances, Jefferson was retained by clients and then did nothing to investigate or further their cases.

The evidence of Jefferson's pattern of misconduct directly refutes the state's argument that Jefferson's failure to use Xavier's confessions was based on a strategic decision about how best to represent his client, Sheldon. Jefferson's disciplinary record documents a course of conduct wholly inconsistent with the state's supposition about Jefferson's knowledge, intent and motives. Instead, this course of conduct reveals a lawyer who was completely indifferent to his clients, a lawyer who in a number of cases did almost nothing to protect his clients' interests. Jefferson's incompetence and indifference is a far more likely explanation for his failure to investigate the facts and to use Xavier's confession than the state's wholly unsupported conjectures about "strategic" decisions.

There is other evidence of Jefferson's indifference to Sheldon's interests, as well. Jefferson failed to secure a transcript of the first trial. Thus he could not take advantage of inconsistencies between the testimony of the five eyewitnesses at the first trial and at the second. This despite the critical nature of the eyewitness testimony and the fact that three of the five had at some point identified Xavier, and not Sheldon, as the shooter. Jefferson also failed to hire a private investigator to interview witnesses and gather evidence from the scene; failed to hire a ballistics expert to validate the inside shot defense; and failed to familiarize himself with crime scene photos and other physical evidence. In short, aside from showing up in court, Jefferson did little or nothing in his client's behalf.C. Prejudice

Jefferson's incompetent performance at Sheldon's trial is not enough, standing alone, to establish a Sixth Amendment violation. In addition, Sheldon must show that he was prejudiced by Jefferson's incompetent performance. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. He must show that "there is a reasonable probability that, absent [Jefferson's] errors, the factfinder would have had a reasonable doubt respecting [his] guilt." Id. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome" of Sheldon's trial. Id. at 695, 104 S.Ct. at 2068. It is clear, however, that Sheldon need not show that Jefferson's deficient conduct more likely than not altered the outcome in the case. This "preponderance" standard was explicitly rejected in Strickland. Id. at 693, 104 S.Ct. at 2067.

The answer to the prejudice inquiry in this case is evident. Jefferson's clearly incompetent representation must certainly undermine one's confidence in the murder conviction. Jefferson's incompetence served to deprive Sheldon of the most critical evidence supporting his best defense. Given the fact that three of the state's five eyewitnesses at some point identified Xavier as the shooter, it cannot possibly be said with "fair assurance" that had the jury heard Xavier's confession it would still have convicted Sheldon.

(Former) lawyer Philip Jefferson's gross misconduct carried severe consequences for his client, who, though possibly innocent, was convicted of murder. Jefferson has since been disbarred for a "course of conduct" that evidences chronic inattention to his clients' interests. The California State Bar Court documented eight instances in which Jefferson failed to represent his clients even minimally. He did the same here--only this time in a murder case. Given Jefferson's wholly incompetent performance, and given the fact that the jury could have been presented with the confession of a person who claimed to be and may have been the "real" shooter, there can simply be no fair assurance that the verdict would have been the same had Sheldon received effective representation.

Thus, we conclude that the writ must be granted on the ground of ineffective assistance of counsel as well as on the ground of conflict of interest.

A federal court is vested " 'with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.' " Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724 (1987) (quoting In re Bonner, 151 U.S. 242, 261, 14 S.Ct. 323, 327, 38 L.Ed. 149 (1894)). The court is "free ... to fashion the remedy as law and justice require ... [and is not required] to order ... [petitioner's] immediate release from physical custody." Davis v. Reynolds, 890 F.2d 1105, 1112 (10th Cir.1989) (footnote omitted); see also Fed.R.App.P. 23(c). "Generally, a district court ruling in the petitioner's favor in a habeas case provides a reasonable time in order to afford the State an opportunity to re-try the defendant or otherwise correct the constitutional infirmity." Bowen v. Maynard, 799 F.2d 593, 614 n. 12 (10th Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986).

Pending review of a decision ordering the release of a prisoner in such a [habeas corpus] proceeding, the prisoner shall be enlarged upon the prisoner's recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.

In this case, given the substantial evidence of Sheldon's actual innocence and the fact that Sheldon already has undergone two trials in state courts and lengthy post-conviction proceedings, we reverse the district court's dismissal of Sheldon Sanders' federal habeas petition and remand to that court with instructions to grant an appropriate writ to release Sheldon Sanders from custody, subject to any reasonable requirements designed to ensure his appearance at possible future proceedings in connection with the within case as the district court sees fit to impose.

REVERSED AND REMANDED.