                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1978
                         ___________________________

                               Michael Terry Williams

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                               Nick Ludwick, Warden

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Ft. Dodge
                                  ____________

                            Submitted: February 11, 2014
                                Filed: July 31, 2014
                                  ____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      In 1998, an Iowa state jury convicted Michael Williams of first-degree murder,
for which he was sentenced to life imprisonment without the possibility of parole.
After exhausting direct and collateral appeals, Williams petitioned for habeas relief
in federal district court.1 Williams alleged that conflicts of interests rendered his trial
counsel ineffective and that his appellate counsel was ineffective for failing to pursue
some of his conflict-of-interest claims. The district court denied relief. We affirm.

                               I. Background
      The Iowa Court of Appeals succinctly summarized the background facts as
follows:

              In the late evening of July 26, 1998, three men entered the home
       of Bruce Vrchota in Mason City, Iowa. Vrchota's son, Shelley, was in
       the house at the time. The intruders were apparently looking for drugs
       and a cash box Vrchota kept on the premises. During the course of the
       incident, one of the men shot and killed Vrchota. In the early morning
       hours of July 27, 1998, Shelley gave a statement to the police and
       identified one of the men by the nickname "Sug." The Mason City
       Police knew the nickname "Sug" referred to Williams. Investigator
       Frank Stearns placed Williams's photograph in a photo array with five
       other men. Shelley identified Williams as one of the men who entered
       his father's home and the man who had brandished a gun during the
       robbery. Williams was arrested on July 28, 1998. His two codefendants
       were arrested shortly thereafter and tried separately.

             On August 6, 1998, the State charged Williams with first-degree
       murder and first-degree robbery. Trial commenced on March 2, 1999,
       and continued for nine days. The jury returned a verdict finding
       Williams guilty of first-degree murder and first-degree robbery. On
       April 2, 1998, the district court sentenced Williams to life in prison
       without the possibility of parole and ordered him to pay restitution in the
       amount of $150,000 to Vrchota's estate.




      1
      The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.

                                           -2-
State v. Williams, Nos. 0-225, 99-0551, 2000 WL 1157832, *1 (Iowa Ct. App. Aug.
16, 2000) (unreported) ("Williams I").

      On direct appeal, the Iowa Court of Appeals affirmed Williams's conviction but
remanded to the Iowa district court for a hearing to determine whether certain
romantic relationships among attorneys in the prosecutor's office and public
defender's office created an actual conflict of interest that adversely affected his
counsel's performance. Cerro Gordo County Public Defender's office represented
Williams at trial. Assistant Public Defender Leslie Hult served as lead counsel, with
supervising attorney Susan Flander as co-counsel. Katherine Evans worked in the
Public Defender's office but did not participate in the case. The prosecutorial team
included Assistant Attorney General Doug Hammerand and Assistant Cerro Gordo
County Attorney Gregg Rosenbladt. Carlyle Dalen worked as an Assistant Cerro
Gordo County Attorney but was not assigned to the case. During Williams's trial, Hult
was engaged to Dalen and Evans was married to Rosenbladt. The state district court
found that the relationships did not rise to an actual conflict of interest and that
Williams waived any potential conflict. The Iowa Court of Appeals again affirmed
the conviction. State v. Williams, 652 N.W.2d 844 (Iowa Ct. App. 2002) ("Williams
II").

       After his conviction, Williams applied for post-conviction relief in state court.
Williams alleged he received ineffective assistance of both trial and appellate counsel.
One member of Williams's trial defense team, Flander, simultaneously defended
potential alibi witness Deanna Ackerman against a marijuana charge in a different
case. Because of the potential conflict, Williams averred, his lead trial counsel, Hult,
failed to call Ackerman to testify at his trial, depriving him of effective assistance of
counsel. Williams also argued "that certain clients of Evans and/or Hult—Chris
Morrill, Delona Webster, Vernon Moon, and Romie Williams—either had relevant
information about the murder or actually testified for the prosecution at trial."
Williams v. State, 771 N.W.2d 653, *4 (Iowa Ct. App. 2009) (unpublished)

                                          -3-
("Williams III"). Finally, Williams contended that his appellate counsel, Maggi Moss,
failed to seek further review of Williams I—a holding that he believed was so wrong
that only a constitutionally ineffective lawyer would have allowed it to stand.

       The Iowa Court of Appeals denied relief. The court noted that Ackerman's
alleged alibi testimony conflicted with Williams's own testimony about his
whereabouts at the time of the murder. The court therefore held "Flander's
representation of Ackerman did not present an actual conflict" under applicable
precedent. Williams, 771 N.W.2d at *3. With respect to Morrill, Webster, Moon, and
Romie Williams the court found no actual conflict of interest. The court noted that
the relevant testimony from both Morrill and Webster was inadmissible hearsay and
incriminated Williams. With respect to Moon and Romie Williams, the court stated
"Moon and Romie Williams did testify for the prosecution. However, Evans's
representation of both of them had terminated before they became prosecution
witnesses. Neither Moon nor Romie Williams were ever represented by Hult or
Flander personally." Id. at *4. Consequently, neither Hult nor Flander were in any
way constrained in their representation of Williams. Finally, the court concluded that
it reached the correct decision in Williams I; therefore, Moss was not constitutionally
ineffective for failing to appeal that decision. Id. at *4–5. The Iowa Supreme Court
denied further review.

       Williams then filed a 28 U.S.C. § 2254 petition with the federal district court.
The court found that the Iowa Court of Appeals did not render a decision contrary to
or involving an unreasonable application of clearly established federal law, nor did
it reach a decision based on an unreasonable determination of the facts. The court
found that "Flander's association with Ackerman did not affect Mr. Williams's
representation or deprive him [o]f a viable alternate defense." The court found no
evidence that the alleged conflicts with respect to Morrill, Webster, Moon, and Romie
Williams in any way impacted Williams's defense. The court also found that Moss
was not constitutionally ineffective for failing to appeal Williams I to the Iowa

                                         -4-
Supreme Court. The court found that Williams I was not contrary to clearly
established federal law, and that if counsel had appealed to the Iowa Supreme Court,
it would have either declined to review or affirmed the decision. Finding no basis for
relief, the court denied the petition.

      The district court granted a certificate of appealability, permitting Williams to
appeal the following issues: "whether [Williams's] trial attorney was ineffective
regarding the alleged impermissible conflicts of interest, and whether his appellate
attorneys were ineffective for failing to raise all his claims and for failing to pursue
an appeal of the ruling of the Iowa Court of Appeals."

                                     II. Discussion
       On appeal, Williams alleges that both trial and appellate counsel were
ineffective. With respect to the alleged conflict arising from Hult's representation of
Ackerman, Williams alleges that Ackerman could have been called to testify on his
behalf, that some of her testimony "could have been a valuable alibi defense," and
that "failure to inquire into potentially using Ackerman as an alibi witness affected
the adequacy of representation." As a result, he contends, he is "entitled to a new trial
with counsel that can independently investigate all potential witnesses to determine
whether Ackerman should be called as an alibi witness." Williams alleges that "Moss
failed to follow through with a request for further review based upon the 'automatic
reversal' language of Holloway v. Arkansas, 435 U.S. 475, 488–89 (1978), and
allowed the case to be sent back for a determination of 'actual conflict,'" which
Williams contends was the wrong standard of review. Williams also avers that "Moss
failed to present any information at the remand hearing about conflicts between
potential witnesses such as Moon, Ackerman and [Michael] Graham."

      "In a habeas proceeding, this Court reviews the district court's conclusions of
law de novo and its factual findings for clear error." Bobadilla v. Carlson, 575 F.3d
785, 790 (8th Cir. 2009) (citation omitted). Under the Antiterrorism and Effective

                                          -5-
Death Penalty Act, where a petitioner's claims have been "adjudicated on the merits
in State court proceedings," we may grant relief only where the adjudication:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.

28 U.S.C. § 2254(d).

        Ineffective-assistance-of-counsel claims, whether pertaining to trial counsel or
appellate counsel, are governed by the standard announced in Strickland v.
Washington, 466 U.S. 668 (1984).2 Under Strickland, a petitioner claiming that his
trial counsel was constitutionally ineffective "must show: (1) that his lawyer's
representation fell below an objective standard of reasonableness; and (2) that the
lawyer's deficient performance prejudiced the defendant." Abernathy v. Hobbs, 748
F.3d 813, 816 (8th Cir. 2014) (citing Strickland, 466 U.S. at 688, 694). To
demonstrate that appellate counsel was ineffective, a petitioner "must first show that
his counsel was objectively unreasonable in failing to find arguable issues to
appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and
to file a merits brief raising them." Robbins, 528 U.S. at 285 (citation omitted). He
must then "show a reasonable probability that, but for his counsel's unreasonable
failure to file a merits brief, he would have prevailed on his appeal. Id. (citation
omitted).




      2
       See Smith v. Robbins, 528 U.S. 259, 285–86 (2000) (applying Strickland to
ineffective assistance of appellate counsel claims).

                                          -6-
       The Supreme Court identified an exception to the "general rule" of Strickland:
"where assistance of counsel has been denied entirely or during a critical stage of the
proceeding," prejudice is presumed. Mickens v. Taylor, 535 U.S. 162, 166 (2002).
Counsel is ineffective where "the defendant's attorney actively represented conflicting
interests." Id. Where the trial court forces defense counsel "to represent codefendants
over his timely objection" without determining that no conflict of interest exists,
reversal is automatic. Id. at 167–68 (citing Holloway, 435 U.S. at 488). "[A]bsent
objection, a defendant must demonstrate that 'a conflict of interest actually affected
the adequacy of his representation.'" Id. at 168 (quoting Cuyler v. Sullivan, 446 U.S.
335, 348–49 (1980)). A defendant who makes such a showing "need not demonstrate
prejudice in order to obtain relief." Cuyler, 446 U.S. at 349–50. (citation omitted)
"[W]e have expressly refrained from deciding whether the lowered burden in
establishing prejudice applies to actual conflicts of interest which did not arise out of
multiple representation." Morelos v. United States, 709 F.3d 1246, 1252 (8th Cir.
2013) (citations omitted).

       Mere possible conflict is not sufficient to trigger Cuyler's lower burden; "a
defendant must establish that an actual conflict of interest adversely affected his
lawyer's performance." Cuyler, 446 U.S. at 350 (emphasis added). "But until a
defendant shows that his counsel actively represented conflicting interests, he has not
established the constitutional predicate for his claim of ineffective assistance." Id.
(citation omitted).

      To prove a conflict produced an adverse effect [under Cuyler], a
      defendant must identify a plausible alternative defense strategy or tactic
      that defense counsel might have pursued, show that the alternative
      strategy was objectively reasonable under the facts of the case, and
      establish that the defense counsel's failure to pursue that strategy or
      tactic was linked to the actual conflict.

Morelos, 709 F.3d at 1252 (citations and quotation omitted).

                                          -7-
       Assuming without deciding that Cuyler applies to conflicts of interest not
arising out of multiple representation, we hold that Williams has not demonstrated
that he is entitled to relief. With respect to the alleged Hult/Ackerman conflict,
Williams has identified a plausible alternative strategy that his counsel could have
pursued: solicit alibi testimony from Ackerman. Unfortunately, the Iowa Court of
Appeals found that Ackerman's proposed alibi testimony conflicted with that of both
Williams and his wife. The decision not to solicit testimony contrary to that of one's
client is a sound defense strategy. Hult's decision not to call Ackerman was prudent
and reasonable and advanced no interest of Ackerman in conflict with Williams.
Williams has not demonstrated that calling Ackerman to testify would have been
"objectively reasonable under the facts of the case," and therefore has not established
that the conflict "adversely affected" the representation that he received.3 As a result,
Williams is not entitled to relief due to ineffective assistance of trial counsel.

       Similarly, Williams has not established that appellate counsel was ineffective.
Williams asserts that Williams I conflicted with the "automatic reversal" language in
Holloway. However, Holloway entitles a defendant to "automatic reversal" of a
conviction "where defense counsel is forced to represent codefendants over his timely
objection." Mickens, 535 U.S. at 168. Because neither Williams nor his counsel
objected to any conflict of interest in this case, nor did counsel represent
codefendants, Holloway is inapposite. Counsel was therefore not ineffective for
failing to appeal Williams I to the Iowa Supreme Court on the basis of Holloway.

     Nor was appellate counsel ineffective for failing to present evidence of the
Webster or Moon conflicts on remand to the state district court. Only the potential

      3
       Williams did not raise the alleged Morrill or Romie Williams conflicts on
appeal. Williams presents nothing more than the bare assertion that "Williams's
attorneys could not effectively investigate state witnesses Vernon Moon and Delona
Webster, since they were also represented by the same Cerro Gordo Public Defenders
Office." We find no merit to his unsubstantiated claim.

                                          -8-
conflicts relating to the Hult/Dalen and Evans/Rosenblandt relationships were
addressed by the Iowa Court of Appeals. The scope of remand was explicitly limited
to those potential conflicts. Counsel did not provide ineffective assistance by failing
to press arguments outside the scope of remand.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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