                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                           FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                            ________________________                 ELEVENTH CIRCUIT
                                                                         JUNE 12, 2001
                                                                      THOMAS K. KAHN
                                    No. 99-11287                           CLERK
                              ________________________

                      D.C. Docket No. 97-00064-CIV-FTM-17D

JOE HARRY PEGG,
                                                                 Petitioner-Appellant,

                                           versus

UNITED STATES OF AMERICA,
                                                                 Respondent-Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          _________________________
                                  (June 12, 2001)


Before CARNES and RONEY, Circuit Judges, and ALAIMO*, District Judge.

RONEY, Circuit Judge:




       *
         Honorable Anthony A. Alaimo, U.S. District Judge for the Southern District of
Georgia, sitting by designation.
       Defendant Joe Harry Pegg was convicted on his plea of guilty to one count of

conspiracy to import marijuana in violation of 21 U.S.C. § 963, and given a 360-

month sentence. He appeals the denial of his 28 U.S.C. § 2255 collateral attack on

that conviction with a single issue: the district court erred in not letting him withdraw

his guilty plea, either before or after sentencing, on the ground that his attorney had

a conflict of interest that deprived him of his constitutional right to effective assistance

of counsel. After a four-day evidentiary hearing, the district court determined that,

although one of his attorneys did indeed have a conflict of interest in Pegg’s going to

trial, the conflict of interest of that attorney did not deprive Pegg of effective

assistance of counsel. See United States v. Pegg, 49 F.Supp. 2d 1322 (M.D. Fla.

1999). That finding being neither clearly erroneous nor contrary to law, we affirm.



                       1. The Facts Concerning the Guilty Plea.

       The facts of this case unfolded over a sixteen-year period. Pegg became

acquainted with Washington, D.C. attorney James E. Sharp in 1981 when Sharp

represented Pegg in a joint federal and state marijuana prosecution. Pegg and Sharp

became good friends thereafter, and Sharp continued to represent Pegg on and off

through their friendship. In March 1994, a federal grand jury in Tampa, Florida

returned the indictment that is the subject of this appeal. Pegg was charged as one of


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several individuals who conspired to import marijuana into the United States in 1988

and 1989. Pegg asked Sharp and Tom Lankford, Sharp’s law partner, to represent him

in the matter, and both Sharp and Lankford agreed. Sharp engaged John Fitzgibbons,

a Tampa attorney, to be local counsel for Pegg in the case. Cynthia Collazo, the

Assistant United States Attorney (“AUSA”) assigned to prosecute Pegg’s case,

frequently discussed the possibility of a plea agreement with all three of Pegg’s

attorneys. They also discussed the likelihood that Pegg could receive a reduced

sentence if he entered into a plea agreement and cooperated with the government.

      In September 1994, AUSA Collazo was contacted by the attorney for Reggie

Baxter, a co-conspirator of Pegg’s who became a government witness. Baxter’s

attorney explained to AUSA Collazo that Sharp may have had privileged

conversations with Baxter that would cause Sharp a conflict of interest in representing

Pegg. AUSA Collazo instructed a federal agent to interview Baxter and also sent a

letter to Sharp and Lankford alerting them that Sharp’s contact with Baxter might have

caused a conflict of interest. Sharp and Lankford denied the existence of any conflict

of interest. AUSA Collazo then interviewed Baxter at the federal lock-up facility. In

unsworn statements, Baxter told AUSA Collazo that shortly after he had been arrested

in 1992 for participating in the marijuana importation conspiracy charged in the

instant case, Sharp had met with him and arranged for Pegg to pay a portion of


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Baxter’s legal fees. Baxter then stated that Pegg had retained attorney Dick Hibey to

represent Baxter in the case. Baxter further claimed that Sharp and Hibey helped him

concoct a false story to help exculpate Pegg.

      AUSA Collazo expressed concern that Baxter’s allegations regarding Sharp

would come up at trial and affect Sharp’s ability to represent Pegg. AUSA Collazo

notified Sharp, Lankford, and Fitzgibbons that they should alert the district court of

the potential conflict. Fitzgibbons told AUSA Collazo that even if Sharp was

disqualified from representing Pegg, he could try the case and win. On November 17,

1994, AUSA Collazo prepared a motion to disqualify Sharp and Lankford. When

Sharp and Lankford received the motion for disqualification, they, along with

Fitzgibbons, were preparing to go to trial and did not intend to enter a guilty plea.

Pegg’s attorneys collectively discussed the conflict issue and decided that, in the event

Sharp ended up having to testify at trial, Fitzgibbons would assume the role of lead

attorney in the case. The attorneys discussed with Pegg the nature of Sharp’s conflict,

and the possible consequences of Sharp continuing to serve as his counsel, and the

possibility that Sharp may need to disqualify himself from the case. Pegg begged

Sharp not to withdraw from the case, saying “don’t abandon me.”

      On November 28, 1994, Pegg, Sharp, Lankford, and Fitzgibbons appeared in

court prepared to argue the government’s disqualification motion and other pretrial


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motions. Unexpectedly, Bernie Getchman, another co-defendant in the case whose

counsel had previously advised Pegg’s attorneys that he was definitely going to trial,

pled guilty to all the charges in the indictment. During his plea colloquy, Getchman

testified that Pegg had hired him to direct, organize, and control the marijuana

importation and that he had done so at Pegg’s direction. The district court granted the

parties a continuance until the following day to attempt to negotiate a plea in the case.

      AUSA Collazo, Sharp, and Lankford met and agreed that Pegg should submit

to an interview by a Drug Enforcement Agency (“DEA”) agent to see if Pegg had any

information that would be helpful to the government. The DEA agent told Pegg that

if he cooperated with the government, the government would likely move to reduce

his sentence below that required by the sentencing guidelines. In Pegg’s presence,

Fitzgibbons, an experienced federal trial attorney in Tampa, suggested that Pegg was

likely to get a good deal at sentencing, predicting that the sentencing judge was likely

to sentence him to time served, if he entered a guilty plea, turned over monetary

assets, and cooperated in interviews with the DEA.

      Pegg’s attorneys negotiated a written plea agreement with the government,

which they brought to Pegg that evening. The three lawyers collectively decided that

it was in Pegg’s best interest to plead guilty, and Pegg agreed. During the plea

colloquy, Pegg appeared calm and coherent and never raised any issue regarding


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Sharp’s conflict of interest. The district court qualified the plea and went through a

few questions that were meant to show Pegg’s waiver of Sharp’s conflict of interest.

      Pegg was not sentenced until fifteen months after he had entered his guilty plea.

Fitzgibbons represented Pegg during the sentencing hearing on February 16, 1996.

Prior to sentencing, Pegg was afforded several opportunities to cooperate with the

government. The interviewing DEA agent noted, however, that Pegg had not been

truthful in the interviews. Because Pegg had not complied with the terms of the plea

agreement to date, Fitzgibbons did not want to proceed with sentencing that day and

requested a continuance. Once Pegg realized that the government had not filed a

motion for downward departure from the sentencing guidelines, Pegg told Fitzgibbons

that he wanted to withdraw his plea. The district court denied Pegg’s request.

                2. The Standard For Relief For Conflict of Interest.

      To obtain relief on a case of this kind, a defendant must show first, that his

attorney had an actual conflict of interest, and second, that the conflict adversely

affected counsel’s performance. See Freund v. Butterworth, 165 F.3d 839, 858 (11th

Cir. 1999). In order to establish a violation of the Sixth Amendment, a defendant

“must demonstrate that an actual conflict of interest adversely affected his lawyer’s

performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1981); see also Freund, 165

F.3d at 858. A § 2255 petitioner must show “‘inconsistent interests and must


                                          6
demonstrate that the attorney made a choice between possible alternative courses of

action. . . .’” McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir. 1990) (quoting

Smith v. White, 815 F.2d 1401, 1404 (11th Cir. 1987)).

                       a. The Attorney’s Conflict of Interest.

      As to the first prong of the showing Pegg had to make, the district court found

and the government does not deny that Sharp labored under an actual conflict of

interest created by co-conspirator Baxter’s allegations that Sharp had engaged in

unethical and criminal activity in connection with his representation of Pegg.

       b. No Adverse Effect on Assistance of Counsel and the Guilty Plea.

      As to the second prong, even if an actual conflict of interest exists, there must

be proof that the conflict adversely affected counsel’s performance in order to rise to

the level of a Sixth Amendment violation. See United States v. Buenoano, 74 F.3d

1078, 1086 (11th Cir. 1996) (“In assessing whether an actual conflict adversely

affected counsel’s representation, ‘[a] petitioner need not show that the result of the

trial would have been different without the conflict of interest, only that the conflict

had some adverse effect on counsel’s performance.’” (quoting McConico, 919 F.2d

at 1548)).

      To prove adverse effect, a habeas corpus petitioner must show: (1) the

existence of a plausible alternative defense strategy or tactic that might have been


                                           7
pursued; (2) that the alternative strategy or tactic was reasonable under the facts; and

(3) a link between the actual conflict and the decision to forgo the alternative strategy

of defense. See Freund, 165 F.3d at 860 (holding that a petitioner must establish that

the alternative defense strategy was inherently in conflict with or not undertaken due

to the attorney’s other loyalties or interests); see also Burden v. Zant, 24 F.3d 1298,

1305 (11th Cir. 1994). If there is a guilty plea involved, this Court looks at whether

the attorney’s actual conflict adversely affected the defendant’s decision to plead

guilty. See LoConte v. Dugger, 847 F.2d 745, 755 (11th Cir. 1988).

      In a four-day evidentiary hearing on the instant § 2255 motion, the district court

heard extensive testimony from Pegg’s attorneys and others involved in the events

leading up to the entry of Pegg’s guilty plea. The record shows that Pegg had the

advice of several attorneys and that the plan under which Pegg was to enter his guilty

plea was devised by Fitzgibbons, an attorney who did not act under any conflict of

interest. During his testimony Sharp denied Baxter’s incriminating allegations that

he had concocted a plan to fabricate a story to the DEA. Even though Sharp

acknowledged that he had briefly met with Baxter, Sharp testified that he refused to

discuss the case with Baxter further once Baxter conveyed to him that he had

information that incriminated Pegg. Sharp also acknowledged that he and Pegg had

had a personal and professional relationship for several years and that Pegg had


                                           8
begged Sharp to remain as his counsel in this case. Sharp admitted that Baxter’s

allegations upset him, that he was concerned about his own interest, but insisted he put

his client’s interest first and foremost in assisting Pegg in making the decision to plead

guilty. Sharp also testified concerning the active involvement of Pegg’s other

attorneys, who decided collectively that it would be in Pegg’s best interest to plead

guilty. Fitzgibbons testified that he had devised and promoted the plan for Pegg to

plead guilty and to cooperate with the government in order to receive a reduced

sentence. Fitzgibbons further testified that although Pegg struggled with the decision

to plead guilty, he believed that at the time Pegg entered the plea he wanted to do so.

      Furthermore, the reasoning of Pegg’s attorneys’ collective recommendation for

Pegg to plead guilty is clearly supported by the record. If Pegg had not pleaded guilty,

Getchman, a co-conspirator turned government witness, would have testified against

Pegg at trial and his testimony would have been devastating to Pegg’s case. Although

there was a clear alternative to the chosen defense strategy – to go to trial – there is

evidence in the record to support the district court’s finding that Sharp’s performance

was not adversely affected by Baxter’s allegations. Pegg’s assertion that Sharp

avoided the publication at trial of Baxter’s allegations against Sharp is at best

speculative, and the collective recommendation by Pegg’s attorneys for Pegg to plead

guilty was in Pegg’s best interest at the time of his sentencing.


                                            9
      The record amply supports the decision of the district court that Pegg did not

receive ineffective assistance of counsel because of the conflict of interest of his

attorney, James E. Sharp.

                          3. Inapplicability of Per Se Rule.

      Pegg urges this Court to adopt the Second Circuit’s holding in United States v.

Fulton, 5 F.3d 605 (2d Cir. 1993), in which the court held there to be a per se

violation of the Sixth Amendment not subject to waiver by the defendant under the

circumstances of that case. In the middle of the trial at issue in Fulton, the

government informed the court in an ex parte conference that the government witness

on the stand previously stated that he had once imported heroin for defendant Fulton’s

trial counsel. See id. at 607. In spite of the fact that this implicated counsel in the

very crime for which Fulton, the defendant, was being tried, the court permitted

counsel to continue to represent defendant in the trial. See Fulton, 5F.3d at 608. The

Second Circuit held this to be error. See Fulton, 5 F.3d at 612. Relying on its

precedent, the Second Circuit noted that there is a per se violation of defendant’s Sixth

Amendment right to effective assistance of counsel without the necessity of showing

an adverse effect as required by Cuyler v. Sullivan, 446 U. S. 335 (1981), “when the

attorney has engaged in the defendant’s crimes.” Fulton, 5 F.3d at 611.




                                           10
       Even if there may be circumstances under which a per se rule should be applied,

in our judgment Fulton would not require a reversal in this case. In limiting language

in Fulton the court cautioned that where the district court could rule out the possibility

that the allegations are true through an evidentiary hearing, a waiver is possible.

Fulton, 5 F.3d at 613. There was an evidentiary hearing in this case, and the district

court was not clearly erroneous in accepting “Sharp’s uncontroverted testimony that

Baxter’s allegations were false.” Pegg, 49 F.Supp. 2d at 1332.

       Furthermore, the accusation in Fulton that counsel was involved in the alleged

crime would seem to affect counsel’s handling of the trial. In addressing the

defendant, the district court in Fulton said:

             “...you understand that first of all [lead trial counsel] will be
             to some extent distracted by this and, secondly, that he will
             not be able to cross-examine the witness about this ...”
Fulton, 5 F.3d at 608 (quoting the district court).

       In this case, there was no trial, and there was no proffer of sworn testimony

from Baxter to contradict the sworn testimony from Sharp that Baxter’s allegations

were false. See Pegg, 49 F. Supp. 2d at 1332. The allegations in this case involve

counsel’s representation of the defendant in preparation for trial, and actions that

would become a problem to counsel only if there were a trial. The allegations did not

involve a charge that counsel was involved in the crime with which defendant was

charged. The proceedings remained at a stage during which Sharp could continue to

                                            11
let Pegg’s interest trump any interest he might have if the case went to trial. There

was an able conflict-free counsel, Fitzgibbons, available to defend Pegg in the event

of a trial. Fitzgibbons was available to Pegg and did assist him in assessing the

strategy and devising a plan for Pegg to plead guilty in the hopes of receiving a

reduced sentence. There is no reason, under the facts of this case, to presume that the

defendant suffered a violation of his Sixth Amendment right to counsel in connection

with his entry of a guilty plea.

        The district court properly denied Pegg's petition for relief under 28 U.S.C. §

2255.

        AFFIRMED.




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