                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                             Submitted March 20, 2007*
                               Decided April 6, 2007

                                        Before

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-2632
                                                 Appeal from the United States District
MILTON S. JONES,                                 Court for the Eastern District of
    Petitioner-Appellant,                        Wisconsin.

      v.                                         No. 02-C-1007

UNITED STATES OF AMERICA,                        Rudolph T. Randa,
    Respondent-Appellee.                         Chief Judge.

                                      ORDER

        Milton Jones was convicted after a jury trial of possession of a firearm by a
felon, 18 U.S.C. § 922(g)(1). Instead of pursuing a direct appeal, Jones moved to
vacate his conviction under 28 U.S.C. § 2255. He claimed, as relevant here, that
trial counsel had a conflict of interest and that the government failed to disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The


      *
       After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-2632                                                                       Page 2

district court denied relief but issued a certificate of appealability limited to these
two questions. We affirm.

       At trial Leslie Barber, a 28-year veteran of the Milwaukee Police
Department, testified that while on patrol in July 2000 he saw a car with four
passengers inside stop in front of a club, blocking traffic.1 He saw Jones exit the
car, pull a gun from his waistband, and point it several times toward the crowd
outside the club. After someone from the crowd approached Jones, he put the gun
back in his waistband, got into the car’s driver’s seat, and drove off. Barber and
other officers stopped the car and, after ordering the passengers to get out, found
the gun on the driver’s seat. Jones, in contrast, testified that he was waving a cell
phone and never possessed the gun. Jones also called four of his friends to testify
that it was indeed a cell phone he was holding outside the club. Only one of the
four, Stanley Blalock, was in the car with Jones, and on rebuttal Officer Patrick
Fuhrman testified that immediately after the stop Blalock told him that it was
Jones who had been waving the gun.

       The conflict claim focuses on another occupant of the car, Maurice Withers,
who was jailed on another matter after the stop. Defense counsel, Michael Steinle,
learned before trial that Withers confessed to a jailhouse snitch that it was his gun
and that he abandoned it in the car when the police approached. Steinle
interviewed Withers, who confessed to him as well, but afterwards Withers gave the
police a written statement saying it was Jones’s gun, and that Jones’s family had
offered him money to say it was his. This much is not disputed. But in his § 2255
motion, Jones also alleged that Withers “suggested” to the police that Steinle tried
to “improperly influence Withers” to take responsibility for the firearm. Jones
claimed that he wanted Withers and the snitch, Jerry Christian, to testify at trial,
but Steinle would not call either because he “feared that Withers would make
untrue statements” that would damage his professional reputation.

      As for his Brady claim, Jones stipulated at trial that no fingerprints were
found on the gun, and he did so because the government produced a police report
saying that the gun was examined and no prints were found. After trial, however,
Jones obtained from the Milwaukee Police Department a property inventory report
with the number N00707 in a box labeled “Lab #.” In his § 2255 motion, Jones
claimed that this entry indicates that a lab report exists and that the government is
withholding potentially exculpatory information.


      1
        Although the government cites extensively to the trial transcripts in its brief,
it did not make them part of the record on appeal. This oversight forced us to obtain
the transcripts independently and that caused unnecessary delay. We would hope this
sort of oversight would not be repeated in future cases.
No. 06-2632                                                                       Page 3

       The district court concluded that Jones could not show that Steinle’s alleged
conflict of interest adversely affected his performance, and that Jones was merely
speculating that the government possessed an undisclosed fingerprint analysis
which would have helped him. Jones renews his conflict claim, but rather than
argue the merits of his Brady claim, he challenges the court’s denial of a discovery
motion he filed pursuant to Rule 6(a) pertaining to § 2255 proceedings. Jones
asserts that such discovery was necessary to help him prove that the government
withheld a fingerprint report.

       A § 2255 petitioner can assert that his counsel was ineffective due to a
conflict of interest claim in either of two ways. Hall v. United States, 371 F.3d 969,
973 (7th Cir. 2004). First, under Strickland v. Washington, 466 U.S. 668 (1984), he
may show that his attorney had a potential conflict of interest that prejudiced his
defense. Id. at 692. Alternatively, under Cuyler v. Sullivan, 446 U.S. 335 (1980),
he may demonstrate that his attorney was plagued by an actual conflict of interest
that adversely affected his performance. Id. at 349-50; Hall, 371 F.3d at 973.
Although “a mere theoretical division of loyalties” can create a potential conflict of
interest, see Mickens v. Taylor, 535 U.S. 162, 171 (2002), an actual conflict of
interest arises only when an attorney is in fact “torn between two different
interests,” United States v. Holman, 314 F.3d 837, 845 (7th Cir. 2002). In other
words, an actual conflict is “precisely a conflict that affected counsel’s performance.”
See Mickens, 535 U.S. at 171 (emphasis in original).

       Jones’s conflict-of-interest theory is purely speculative. Jones asserts that
Steinle did not call Withers or Christian because he was afraid that testimony from
either might lead to disclosure that Withers had accused the lawyer of trying to
influence his testimony. The evidence of counsel’s misconduct, says Jones, is
Withers’s statement to the police that Steinle visited him in jail and said, “You’re
gonna take the case, right?” But this statement shows only that Steinle did his job;
after learning that Withers apparently had confessed to Christian, Steinle went to
Withers to confirm that he would admit his wrongdoing. Jones’s conflict-of-interest
claim hinges on his own sinister spin to an objectively innocent statement (and
assumes that Withers accurately reported what Steinle said). Steinle could not
have meant to corruptly influence Withers unless Jones’s family indeed had bribed
Withers and Steinle knew as much. That is not what Jones wants us to believe;
instead, he reasons that Steinle had a conflict because he feared that Withers would
accuse him of wrongdoing.

       An attorney’s fear that vigorously representing his client could prompt
investigation into his own wrongdoing can create a conflict of interest. United
States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990). But “[a]llegations of wrongdoing
alone cannot rise to the level of an actual conflict unless the charges have some
foundation.” Id.; see Moss v. United States, 323 F.3d 445, 463-64 (6th Cir. 2003)
No. 06-2632                                                                         Page 4

(noting that if a conflict is “merely hypothetical, there is no constitutional
violation”). Here, Withers’s supposed accusation could have foundation only if
Steinle was involved in a bribery plot with Jones’s family, and Jones has disavowed
that possibility. Moreover, Withers told the police what Steinle supposedly said, so
calling Withers or Christian would not have exposed Steinle to any greater scrutiny.

        Even if the alleged conflict rose to the level of a potential conflict, Jones could
not make the requisite showing of prejudice. See Strickland, 466 U.S. at 692; Hall,
371 F.3d at 973. Strickland recognizes the need to give leeway to counsel’s tactical
determinations, see Floyd v. Hanks, 364 F.3d 847, 851-52 (7th Cir. 2004), and
counsel’s strategic choice not to call a witness is “virtually unchallengeable” where
the choice is made after thorough investigation, see United States v. Balzano, 916
F.2d 1273, 1294 (7th Cir. 1990). As the district court observed, if Steinle tried to
elicit an in-court confession from Withers or introduced his out-of-court confession
through Christian, the government would have impeached Withers with his
statement to the police that Jones owned the gun, that Jones’s family tried to pay
him to take the fall, and that Jones previously had paid him to assume
responsibility for a drug case. In essence Steinle and the government both
concluded that Withers’s statements to Christian and to the government were
unreliable, which is why at trial the lawyers for both parties agreed not to elicit
either statement or call either witness.

       Jones does not challenge on appeal the denial of his Brady claim; instead he
argues that the court should have granted his Rule 6(a) motion for further
discovery. Even if this contention is within the scope of the question certified for
appeal, it is without merit. Under Rule 6(a) the court may authorize discovery “for
good cause,” and we review its decision not to allow discovery for abuse of
discretion. See Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir. 2004) (discussing
Rule 6(a) of the rules governing proceedings under 28 U.S.C. § 2254). Jones’s Rule
6(a) motion was based solely on his hope that a lab number on a police inventory
report means that the government is withholding a fingerprint analysis. His
speculation does not constitute good cause. Cf. Bracy v. Gramley, 520 U.S. 899,
908-09 (1997). In any event, even in Jones’s best-case scenario—that further
discovery would produce a fingerprint report showing only Withers’s prints—he
would not prevail on his Brady claim. Brady applies only where the government
withholds exculpatory evidence. See United States v. Bhutani, 175 F.3d 572, 577
(7th Cir. 1999). Withers’s prints on the gun would suggest only that Withers
possessed the gun at some point, not that Jones wasn’t brandishing it just as
Barber said he was.

                                                                           AFFIRMED.
