Affirmed by Supreme Court opinion
filed 3/27/02
Cert granted by Supreme Court on 4/16/01
                                             Filed:   March 6, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 00-4
                            (CA-98-102-3)



Walter Mickens, Jr.,

                                               Petitioner - Appellant,

           versus


John B. Taylor, etc.,

                                                Respondent - Appellee.



                              O R D E R



     The court amends its opinion filed February 16, 2001, as

follows:

     On page 23, first full paragraph, line 18 -- the comma after

the word “knew” is deleted.

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WALTER MICKENS, JR.,
Petitioner-Appellant,

v.
                                                                  No. 00-4
JOHN B. TAYLOR, Warden, Sussex I
State Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-102-3)

Argued: December 5, 2000

Decided: February 16, 2001

Before WILKINSON, Chief Judge, and WIDENER, WILKINS,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Widener wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Wilkins, Nie-
meyer, Luttig, Williams, and Traxler joined. Judge Michael wrote a
dissenting opinion, in which Judge Motz and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert James Wagner, WAGNER & WAGNER, Rich-
mond, Virginia, for Appellant. Robert Quentin Harris, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Robert E. Lee, Jr., VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia, for Appellant. Mark L. Earley, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

In 1993 a jury in the Circuit Court of the City of Newport News,
Virginia convicted Walter Mickens (Mickens) of the capital murder
of Timothy Hall (Hall). Mickens was sentenced to death. Mickens'
federal habeas attorney later discovered during the preparation of
Mickens' federal habeas corpus petition that Mickens' trial counsel
had just previously represented Hall on a charge unrelated to Hall's
death. Mickens argues that, because of this prior representation, his
attorney labored under a conflict of interest that rendered his repre-
sentation of Mickens inadequate to satisfy Mickens' Sixth Amend-
ment guarantee of effective counsel. Principally, because Mickens has
failed to show that such conflict of interest adversely affected the
quality of his representation, we deny Mickens' petition for habeas
corpus relief. We hold the incidental claims of Mickens are also with-
out merit.

I.

We describe the facts of this crime as they have been summarized
by the Supreme Court of Virginia, Mickens v. Commonwealth, 442
S.E.2d 678, 681-83 (Va. 1994). See 28 U.S.C. § 2254(e)(1).

On March 28, 1992, Timothy Hall, age seventeen, lived with his
fourteen-year-old friend, Raheem Gordon, and Gordon's father in
Gordon's Newport News, Virginia apartment. Hall and Gordon often
shared clothes, and Hall was wearing his roommate's Nike brand
"Cross Trainer" tennis shoes on that night. Between 7:00 and 8:00
p.m. that evening, Hall drove young Gordon to a party in a nearby

                  2
apartment building. Hall's stated intention was to return to the party
later in the evening, but he never arrived.

Around 8:00 p.m., shortly after Gordon's arrival at the party, two
other guests at the party, Vincent West and Bruce Mitchell, left the
party and went to a nearby convenience store. After leaving the con-
venience store, West and Mitchell took their purchases to a public
park adjacent to the apartment building in which the party was held.
While sitting in the park, West and Mitchell saw a man with a bicycle
hiding in some bushes and looking at them. The man was later identi-
fied as the petitioner, Walter Mickens.

The following day, Gordon saw Hall's automobile parked near the
site of the party in the same place it had been parked the previous
night. On March 30, 1992, two days after the party, a man walking
along the James River in Newport News saw a body beneath an aban-
doned construction company building. The body was lying face down
on a mattress under a sheet of plywood. The body was nude from the
waist down, except for socks, and its legs were spread apart. Pubic
hairs were recovered from the buttocks of the body. There were
bloody "transfer" stains on the outsides of the victim's thighs, and
there was a white liquid substance close to his anus. The victim was
identified as Timothy Hall.

An autopsy revealed that Hall had suffered 143 separate "sharp
force injuries." The medical examiner concluded that Hall had bled
to death and that 25 of the wounds were fatal, including stab wounds
to the lungs, skull and brain, liver, neck and jugular vein. The exam-
iner opined that the fatal wounds may not have caused instant death,
that Hall could have lived as long as 30 to 40 minutes after infliction
of the last wound and that, during this time, he may have been con-
scious.

On the evening of April 4, 1992, five days after Hall's body was
found, Officer D.A. Seals and Detective Dallas Mitchell of the New-
port News police responded to a complaint that a black male traveling
on a bicycle had assaulted a juvenile. They soon found Mickens, who
is black, riding a bicycle in the parking area of the abandoned con-
struction company building where Hall's body had been found. When
Officer Seals displayed his badge and approached Mickens, Mickens

                  3
fled on his bicycle. Mitchell and Seals followed Mickens and took
him into custody as he was being detained by other officers. They
arrested Mickens on charges involving the assault on the juvenile.

Mickens agreed to talk with the police after being advised of his
Miranda rights. Without telling Mickens how Hall had been mur-
dered, Detective Mitchell told Mickens that he knew Mickens had
killed Hall. Mickens denied any involvement in Hall's murder assert-
ing,"You didn't find any knife on me, did you?" The following morn-
ing, the police obtained warrants charging Mickens with the murder
and attempted sodomy of Hall. When Officer Seals handed Mickens
the warrants, Mickens said, "I accept the warrants; I accept the
charges." Seals asked Mickens what he meant by that, and Mickens
responded, "Mother f___r, if I told you I accept the warrants that
means I'm guilty, don't it?"

On April 7, 1992, the police found Michael Jacobs wearing the
Nike brand "Cross Trainer" shoes that Hall borrowed from Gordon
and had been wearing when Gordon last saw him alive. Jacobs testi-
fied that he bought the shoes from Mickens for $5.00 the previous
week, the same week Hall's body was found.

At trial, expert witnesses presented by the Commonwealth testified
that the pubic hairs removed from Hall's buttocks were from an
African-American and were alike in "all identifiable microscopic
characteristics" to the pubic hair sample taken from Mickens. Tissue
attached to the roots of the hairs indicated that the hairs had been
forcibly removed, possibly by the rubbing of the assailant's genitals
against Hall's buttocks. A sample of human sperm was recovered
from the cover of the mattress on which Hall's body was found. DNA
analysis (RFLP type) of the sample revealed that Hall could not have
produced the sperm. Mickens' DNA pattern was consistent with the
DNA pattern in the sperm, however. According to expert testimony
presented by the Commonwealth, approximately one in 27,000 Cau-
casians, one in 6,000 African-Americans, and one in 2,000 Hispanics
could have produced sperm consistent with the sample taken from the
mattress.

The Commonwealth also presented the testimony of Tyrone
Brister, who had been confined in a holding cell at the courthouse

                  4
with Mickens on March 26, 1993, about a year after Hall's murder.
Brister testified that he had asked Mickens why he was in the holding
cell and Mickens answered, "They said I stabbed somebody 140
something times in the head." Mickens then lowered his voice and
said, "which I did." Mickens also told Brister that "they" said he also
sodomized the victim and stole his sneakers. Again, Mickens lowered
his voice and said, "which I did."

Mickens was convicted of the capital murder of Timothy Hall
under a statute making it a capital offense to commit a premeditated
murder during or following the commission of attempted forcible sod-
omy. See Va. Code Ann. § 18.2-31(5). The jury found that the murder
of Timothy Hall was outrageously and wantonly vile and sentenced
Mickens to death. The Supreme Court of Virginia affirmed. See Mick-
ens v. Commonwealth, 442 S.E.2d 678 (Va. 1994). The United States
Supreme Court granted Mickens' first petition for certiorari and
remanded the case "for further consideration in light of Simmons v.
South Carolina, 512 U.S. 154 (1994)." Mickens v. Virginia, 513 U.S.
922 (1994). On remand the Supreme Court of Virginia concluded that
Simmons mandated a new sentencing hearing because "the jury was
entitled to be informed of Mickens' parole ineligibility." Mickens v.
Commonwealth, 457 S.E.2d 9, 10 (Va. 1995).1 1 On February 5-8,
1996, the trial court held a new sentencing hearing. The jury again
fixed Mickens' sentence at death. Mickens appealed, the Supreme
Court of Virginia affirmed the sentence, Mickens v. Commonwealth,
478 S.E.2d 302, 307 (Va. 1996), and the United States Supreme Court
denied certiorari, Mickens v. Virginia, 520 U.S. 1269 (1997). The
Supreme Court of Virginia denied Mickens' petition for a writ of
habeas corpus on December 15, 1997.

On June 25, 1998, Mickens filed a petition in federal district court
for a writ of habeas corpus under 28 U.S.C. § 2254 (2000). While
investigating Mickens' case, Mickens' court-appointed federal habeas
counsel was the first to discover that Mickens' lead trial counsel,
Bryan Saunders (Saunders), labored under a potential conflict of inter-
est.2
    2 The Federal habeas attorney had gone to the Newport News
_________________________________________________________________

1 Mickens previously had been twice convicted of robbery, not to men-
tion other convictions. See Va. Code § 53.1-151(B1).

2 We take the facts relating to Saunders' representation of Mickens
from the decision of the district court denying Mickens' petition for fed-
eral habeas corpus relief. See Mickens v. Greene, 74 F. Supp. 2d 586
(E.D. Va. 1999).

                  5
Juvenile and Domestic Relations Court to review Mickens' juvenile
case file. While there, counsel also asked the clerk on duty for any
files involving Timothy Hall. Although juvenile case files are kept
confidential under Virginia law, see Va. Code Ann. § 16.1-305, the
clerk mistakenly produced Hall's file. Hall's juvenile file revealed
that, at the time of Hall's death, Saunders was representing him on
assault and concealed weapon charges. The assault charge originated
on February 21, 1992, when Hall's mother swore out a warrant alleg-
ing that her son repeatedly had grabbed her by her arms and shoved
her to the ground. Hall was charged again on March 13, 1992, when
the Newport News police found him in possession of a concealed
weapon, a serrated bread knife wrapped in paper. When Hall appeared
before the Juvenile and Domestic Relations Court on March 20, 1992,
Judge Paul Criver, Jr. appointed Saunders to represent Hall on the two
charges. A hearing in the matter was continued until April 3, 1992.
Sometime between March 20 and March 28, 1992, when Hall was last
seen alive, Hall came to Saunders' office for an interview that lasted
between fifteen and thirty minutes. They discussed the circumstances
surrounding each of the charged crimes.

On Friday, April 3, 1992, four days after Hall's body was discov-
ered, Judge Aundria Foster of the Juvenile and Domestic Relations
Court dismissed the charges against Hall, noting that he was
deceased. Judge Foster's handwritten order was entered on the indi-
vidual docket sheet for Hall's case. The docket sheet was a single
page that included Hall's full name, his date of birth, the charges
against him, an abbreviated history of the proceedings, and the iden-
tity of his appointed lawyer, Bryan Saunders. That same day Saunders
went to the courthouse for the scheduled hearing in Hall's case, and
someone, Saunders does not recall whom, told him that Hall was dead
and that the case had been dismissed. There is no evidence that
Saunders appeared before Judge Foster on the day that the charges
against Hall were dismissed. Mickens was arrested the next day, Sat-
urday, April 4, 1992. On the following Monday, April 6, 1992, Judge
Foster, the same judge who handled the dismissal of Hall's case,
appointed Saunders to represent Mickens in his trial for the capital
murder of Hall. Mickens' arrest warrants, which appear to have been
before Judge Foster when she appointed Saunders, charged that "on
or about March 30, 1992" Mickens murdered "Timothy Jason Hall,
white male, age 17, by stabbing, and during the commission of an

                  6
abduction, and sodomy as well as robbery."3
                                          3 Judge Foster did not
inquire into whether Saunders would have a conflict in representing
Mickens.

Saunders represented Mickens at the guilt phase of his murder trial
and at both of his sentencing hearings. Saunders worked with court-
appointed co-counsel, Warren Keeling, but Saunders was responsible
for about ninety percent of the workload. Keeling took primary
responsibility for the sentencing hearings, however. Neither Saunders
nor Keeling represented Mickens on his petition for state habeas cor-
pus relief. Saunders never told Mickens or Keeling that he had repre-
sented Hall, and Mickens did not learn about the prior representation
until federal habeas counsel discovered it in Hall's juvenile file.

The district court denied Mickens' petition for federal habeas cor-
pus relief. Mickens v. Greene, 74 F. Supp. 2d 586 (E.D. Va. 1999).
The court rejected Mickens' conflict of interest claim after concluding
that "the possible conflict of interest presented by Saunders' succes-
sive representation of Hall and Mickens never ripened into an actual
conflict nor was Saunders' advocacy impaired thereby." Mickens v.
Greene, 74 F. Supp. 2d at 615. The district court also rejected Mick-
ens' other claims, including those for ineffective assistance of counsel
and insufficiency of evidence. Mickens appealed, and, on September
14, 2000, a divided panel of this court reversed the decision of the
district court. See Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000).

The Commonwealth's petition for rehearing en banc was granted,
and on December 5, 2000, the case was argued before the en banc
court. We now affirm.

When this court sits en banc, we review the decision of the district
court for error. See 4th Cir. R. 35(c). Because Mickens filed his fed-
eral habeas petition after the April 24, 1996, enactment of the Antiter-
rorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214, we apply 28 U.S.C. § 2254 as amended
by the AEDPA. See Mueller v. Angelone, 181 F.3d 557, 565-72 (4th
Cir.), cert. denied, 527 U.S. 1065 (1999).
_________________________________________________________________

3 The robbery and abduction charges were later dismissed for lack of
probable cause by Judge Foster at Mickens' preliminary hearing.

                  7
II.

A criminal defendant's Sixth Amendment right to effective assis-
tance of counsel includes a right to counsel unhindered by conflicts
of interest. See Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980);
United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991). The
Supreme Court has most clearly articulated the threshold for estab-
lishing ineffective assistance of counsel in Strickland v. Washington,
466 U.S. 668 (1984). To prevail, a petitioner alleging ineffective
assistance of counsel must establish, (1) that his attorney's representa-
tion fell below an objectively reasonable performance and (2) that the
inadequate performance prejudiced the petitioner's case. Strickland,
466 U.S. at 687. To establish prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. This constitutional standard for establish-
ing ineffective assistance of counsel applies equally in federal collat-
eral proceedings as it does on direct appeal. Strickland, 466 U.S. at
697.

Even as the Strickland court clarified the applicable standard for
ineffective assistance of counsel, however, it recognized special cir-
cumstances addressed by its prior decisions and noted exceptions to
the new standard it articulated. The Strickland Court recognized that
a claim of ineffective assistance of counsel arising from counsel's
conflict of interest presents a special case subject to the standard artic-
ulated by Cuyler v. Sullivan, 446 U.S. 335 (1980). See Strickland, 466
U.S. at 692. To establish ineffective assistance of counsel on conflict
of interest grounds, a petitioner must establish that (1) his attorney
labored under "an actual conflict of interest" that (2) "adversely
affected his lawyer's performance." See Sullivan, 446 U.S. at 348.
After a petitioner satisfies this two-part test, prejudice is presumed.
Sullivan, 466 U.S. at 349.

Mickens presents three alternative arguments for habeas corpus
relief on conflict of interest grounds. First, Mickens argues that the
trial court's failure to inquire into the extent of his attorney's potential
conflict of interest even though the court reasonably should have
known of that conflict mandates automatic reversal of his conviction.
Second, Mickens argues that, even if the trial court's failure to inquire

                  8
into his attorney's potential conflict does not require automatic rever-
sal, it relieves him of his burden under Sullivan of establishing that
the conflict of interest adversely affected his representation. Finally,
Mickens argues that he has satisfied both elements of the two-part
Sullivan test and that the district court erred in ruling that his attorney
did not labor under an actual conflict of interest that adversely
affected his representation. We conclude that Sullivan requires Mick-
ens to establish both an actual conflict of interest and an adverse
effect even if the trial court failed to inquire into a potential conflict
about which it reasonably should have known. Because we find that
Mickens has failed to show an adverse effect, we affirm the decision
of the district court and deny Mickens' petition without deciding
whether Mickens has demonstrated that his attorney labored under an
actual conflict of interest.

Before we examine the merits of Mickens' conflict of interest
claim, we address the Commonwealth's argument that his claim is
barred under the requirement for exhaustion and the doctrine of pro-
cedural default. The exhaustion doctrine bars a claim if it is raised for
the first time in a federal habeas petition. See Breard v. Pruett, 134
F.3d 615, 619 (4th Cir.) (citing Matthews v. Evatt, 105 F.3d 907, 911
(4th Cir. 1997)), cert. denied, 523 U.S. 371 (1998). The procedural
default doctrine bars a claim when the habeas petitioner "fails to
exhaust available state remedies and `the court to which the petitioner
would be required to present his claims in order to meet the exhaus-
tion requirement would now find the claims procedurally barred.'"
Breard, 134 F.3d at 619 (quoting Coleman v. Thompson, 501 U.S.
722, 735 n.* (1991)).

In a case in the procedural posture present here, a petitioner may
overcome both the procedural default and related exhaustion bar by
showing cause for the default and actual prejudice arising from the
asserted constitutional error. See Breard, 134 F.3d at 620. A peti-
tioner can establish cause by showing "that the factual basis for [the]
claim was unavailable to him at the time he filed his state habeas peti-
tion." Breard, 134 F.3d at 620; see McCleskey v. Zant, 499 U.S. 467,
493-94 (1991); Williams v. French, 146 F.3d 203, 209 (4th Cir.
1998). The district court concluded that Mickens established cause:
"Here, Saunders' silence and state law requirements for secrecy of
juvenile court records operated together to preclude Mickens from

                  9
raising the conflict of interest claims in his state habeas petition."
Mickens v. Greene, 74 F. Supp. 2d at 600. The Commonwealth argues
that if Mickens' federal habeas counsel was able to discover
Saunders' prior representation of Hall, then Mickens' state habeas
counsel also could have done so. Virginia law, however, requires
juvenile court records to be kept confidential and prohibits their pro-
duction absent a court order. See Va. Code Ann.§ 16.1-305. As the
district court found, "the fortuitous circumstances by which federal
habeas counsel discovered the truth about Saunders' conflict prove
beyond question that Mickens did not fail in his duty to inquire in the
state court proceedings." Mickens v. Greene, 74 F. Supp. 2d at 601
(citing Amadeo v. Zant, 486 U.S. 214, 224 (1988)). It was only
through a clerk's mistake that federal habeas counsel saw Hall's juve-
nile court file, and as soon as a supervisor discovered the error, the
file was taken from federal habeas counsel. Under these circum-
stances, we agree with the district court that "the factual predicate for
[the conflicts claim] was not available to Mickens in state court nor
was it discoverable through the exercise of diligent investigation."
Mickens v. Greene, 74 F. Supp. 2d at 602. Mickens has established
cause.

To establish prejudice adequate to excuse his default, a petitioner
must show that his counsel's error created more than the "possibility
of prejudice" but instead that it "worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). The
Supreme Court has identified Sixth Amendment conflict of interest
cases as a special circumstance, however, in which prejudice for pur-
poses of the ineffective assistance of counsel inquiry is presumed
once a petitioner establishes both of the two aspects of the underlying
conflict of interest claim. See Sullivan, 446 U.S. at 349-50. Our
inquiry as to prejudice for purposes of excusing Mickens' default thus
incorporates the test for evaluating his underlying conflict of interest
claim. See Williams, 146 F.3d at 212-13 (analyzing actual prejudice
for purposes of procedural default by examining the merits of peti-
tioner's conflict of interest claim); Rosenwald v. United States, 898
F.2d 585, 587 (7th Cir. 1990) (concluding that to show actual preju-
dice the petitioner must establish the merits of his Sullivan claim).
Accordingly, we turn to the merits of Mickens' conflict of interest
claim.

                  10
III.

A.

Mickens argues that the Sixth Amendment mandates automatic
reversal of his conviction because the trial court reasonably should
have known of his attorney's potential conflict of interest but failed
to inquire into the extent of that conflict. Mickens cites Holloway v.
Arkansas, 435 U.S. 475 (1978), and Wood v. Georgia, 450 U.S. 261
(1981), in support of this proposition. We accept for purposes of dis-
cussion, without deciding the issue, that Judge Foster, who appointed
Saunders to represent Mickens, reasonably should have known that
Saunders labored under a potential conflict of interest arising from his
previous representation of Hall.

We are of opinion, however, that the decision in Holloway v.
Arkansas does not require automatic reversal of Mickens' conviction.
Holloway dealt with a specific circumstance, not present here, in
which a trial court failed to inquire into a potential conflict despite
defense counsel's objections. In Holloway, the trial court required one
defense attorney to represent three co-defendants in a joint trial
despite repeated objections by defense counsel that the joint represen-
tation hampered his ability to represent any of the defendants ade-
quately. Notably, he could not cross-examine any of those from
whom he had confidential information. Holloway, 435 U.S. at 478-80.
The Holloway trial court declined to inquire into prejudice arising
from the conflicted representation. While the state court affirmed the
two convictions, the Supreme Court reversed the convictions based
solely on the trial court's failure, in the face of repeated representa-
tions by the single attorney of his impossible burden, to either ascer-
tain the risk of joint representation or appoint separate counsel.
Holloway, 435 U.S. at 483-84.

The Holloway Court cited two reasons for finding a Sixth Amend-
ment violation under such circumstances: the obligation of the trial
court to protect the right of the accused to have effective assistance
of counsel and the trustworthiness of defense counsel's objection that
his representation is hampered by a conflict of interest. Holloway, 435
U.S. at 484-85. An objection raised by defense counsel is particularly
persuasive evidence of a Sixth Amendment violation because: (1)

                  11
defense counsel is in the best position to evaluate his potential con-
flicts of interest; (2) defense attorneys are obligated to inform the
court of conflicts of interest; and (3) attorneys are officers of the court
whose declarations to the court are "virtually made under oath." Hol-
loway, 435 U.S. at 485-86. The Court stated "We find these consider-
ations persuasive." We think that the rule of Holloway should not
apply in a case such as this where there has been no showing of any
hindrance of the defense and no objection by the defense to the con-
flict. In fact, Holloway specifically declined to clarify the extent of a
trial court's obligation to inquire into a conflict of interest absent an
objection by the defense. Holloway, 435 U.S. at 483-84.

Following Holloway, the Court, in Cuyler v. Sullivan, again
addressed a trial court's duty to inquire into conflicts of interest, not-
ing that a trial court must inquire into a conflict of interest when it
"knows or reasonably should know that a particular conflict exists."
Sullivan, 446 U.S. at 347. The Sullivan Court did not extend the Hol-
loway reversal rule, however, beyond the facts of Holloway to all cir-
cumstances in which the defense did not object to a conflict of interest
at trial. Absent such an objection, a petitioner must satisfy the two-
part conflict-of-interest standard identified by Sullivan, establishing
both an actual conflict and an adverse effect. The Sullivan Court rec-
ognized this distinction when it noted that "a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348.44

Mickens argues that a footnote in Wood v. Georgia changed the
rule of Sullivan and extended the automatic reversal rule of Holloway
to circumstances in which a trial court ignores a conflict about which
it reasonably should have known. Wood, 450 U.S. at 273 n.18.55 In
Wood, the Court addressed a conflict of interest issue apparent on the
face of the record even though the conflict had not been addressed
_________________________________________________________________

4 While the cases may seem to emphasize lack of objection, we think
that the fact of the associated failure to offer to a defendant an opportu-
nity to object to or waive objection to questionable representation is also
of consequence.

5 That part of the footnote is: "Moreover, Sullivan mandates a reversal
when the trial court has failed to make an inquiry even though it `knows
or reasonably should know that a particular conflict exists.'"

                  12
below. Wood, 450 U.S. at 262-63. Because the case arose as an appeal
from a revocation of probation, the Court analyzed the conflict under
the due process clause, rather than Sixth Amendment grounds. Wood,
450 U.S. at 271-72. Nonetheless, the Court cited Sullivan for the
proposition that the Sixth Amendment ensures a right to counsel free
from conflict of interest. Wood, 450 U.S. at 271. Without the benefit
of briefing, the Wood Court could not determine whether defense
counsel in the case before the Court labored under an actual conflict
of interest. Wood, 450 U.S. at 272. The record was adequate to estab-
lish, however, "that the possibility of a conflict of interest was suffi-
ciently apparent at the time of the revocation hearing to impose upon
the [trial] court a duty to inquire further." Wood, 450 U.S. at 272. The
court noted that "any doubt as to whether the court should have been
aware of the [conflict] problem is dispelled by the fact that the [prose-
cution] raised the conflict problem explicitly" at trial. Wood, 450 U.S.
at 272-73. The Wood Court thus clarified that trial courts have an
obligation to inquire into potential conflicts of interest when they
know or reasonably should know of a particular conflict. The
Supreme Court remanded the case and instructed the trial court "to
determine whether the conflict of interest that this record strongly
suggests actually existed." Wood, 450 U.S. at 273. However, and we
emphasize, the Court did not find a due process violation, rather, the
Court held that, "Instead, we remand this case for further findings
concerning a possible due process violation." Wood, 450 U.S. at 263.

While Mickens, of course, should not be faulted for advocating the
adoption of what he argues is an automatic reversal rule in the Wood
footnote, we are of opinion that the adoption of such a rule requiring
reversal in such cases would be an overly literal application of the
language in that footnote. We say this for three reasons.6
                                                         6
_________________________________________________________________

6 We recognize that one circuit has apparently applied Wood to create
a rule of automatic reversal for cases in which a trial court has failed to
inquire into a conflict about which it reasonably should have known. See
Ciak v. United States, 59 F.3d 296, 302 (2d Cir. 1995) (reversing a con-
viction on the grounds that "the Supreme Court in Wood v. Georgia
stated that Cuyler . . . requires reversal where a trial court neglects its
duty to inquire about a particular conflict") (citations omitted). Several
of the circuits, including our own, have cited the automatic reversal rule
but have not applied it to reverse a conviction. See United States v.

                  13
First, the decision itself in the Wood case, as we have noted, did
not reach the merits of the due process issue. The decision remanded
the case for further findings concerning a possible due process viola-
tion.

Second, footnote 18 in the Wood case was in response to the aspect
of Justice White's dissent which took issue with jurisdiction to vacate
the judgment on a Constitutional ground. Reading that footnote to
require reversal in each case in which the trial court has failed to
make an inquiry when it might know or should know of a conflict,
we think leads to an application of the footnote of the court beyond
that which was intended.

Third, in our own case of United States v. Tatum, we also referred
to footnote 18 in Wood, Tatum, 943 F.2d at 379, but we applied the
rules of Strickland and Sullivan, that there are two requirements for
relief in such cases, "an actual conflict of interest resulting in an
adverse effect on counsel's performance," Tatum, 943 F.2d at 375
(italics in original), and we went on to show that there was an adverse
effect on counsel's performance, pre-trial strategies were adversely
affected in that case, one trial counsel was dependent on another for
aid in the defense, and obvious avenues for a full defense were not
pursued. Tatum, 943 F.2d at 380.

Thus, we are of opinion that the intervening footnote 18 in Wood
did not change the rule of Strickland and Sullivan. No adverse effect
on the representation of Mickens by his trial attorney having been
shown, we hold that there was no Constitutional error shown in this
_________________________________________________________________

Tatum, 943 F.2d 370, 379 (4th Cir. 1991); United States v. Crespo de
Llano, 830 F.2d 1532, 1538 (9th Cir. 1987); United States v. Cirrincione,
780 F.2d 620, 625 (7th Cir. 1985); United States v. Burney, 756 F.2d
787, 791 (10 Cir. 1985). One other circuit, however, has read Wood as
we do. See Brien v. United States, 695 F.2d 10, 15 n.10 (1st Cir. 1982)
(rejecting the automatic reversal rule because the Wood court "did not
require an automatic reversal of the conviction but merely remanded the
case to enable the trial court to conduct the necessary inquiry, the impli-
cation being that the convictions would only be overturned if an actual
conflict were found").

                  14
case to require a vacation of Mickens' conviction on account of the
fact that Saunders had represented Hall on an entirely unrelated
charge at the time of Hall's death at the hands of Mickens.

B.

Mickens now asserts an alternative reading of the Wood decision
in his opposition to rehearing that we now address. Mickens argues
that, even if Wood does not compel automatic reversal of his convic-
tion, it relieves him of his burden under Sullivan of establishing an
adverse effect on his representation in a case where the trial court
failed to inquire into a potential conflict about which it reasonably
should have known. Mickens notes that the Wood Court remanded to
the trial court "to determine whether the conflict of interest that this
record strongly suggests actually existed" with an instruction to award
a new hearing if "an actual conflict of interest existed at that time" but
did not expressly require the trial court to identify an adverse effect.
Wood, 450 U.S. at 274. Mickens concludes from this remand instruc-
tion that the Wood court eliminated the adverse effect requirement in
cases where the trial court failed to inquire into a conflict of interest
about which it reasonably should have known. Wood, 450 U.S. at 273.
Thus, Mickens reads Wood to have overruled by implication the sec-
ond part of Sullivan's two-part standard. However, "[o]verruling by
implication is not favored." Catawba Indian Tribe of South Carolina
v. South Carolina, 978 F.2d 1334, 1347 (4th Cir. 1992).

But the Wood Court noted that "[o]n the record before us, we can-
not be sure whether counsel was influenced in his basic strategic
decisions by the interests of the employer who hired him." Wood, 450
U.S. at 272 (emphasis added). If defense counsel had been so influ-
enced, the Court stated, "the due process rights of petitioners were not
respected." Wood, 450 U.S. at 272. After these observations, the
Court concluded that it was difficult "to determine whether an actual
conflict of interest was present." Wood, 450 U.S. at 272. Those com-
ments underscore that the Court was searching the record not just for
a conflict of interest, but also for some indication that the conflict
adversely affected the attorney's representation of the defendants.
When read in this light, the Wood Court's terse instruction to the trial
court on remand cannot bear the constitutional weight Mickens
ascribes to it. The Court used the term "actual conflict" to refer to a

                  15
conflict of interest that has adversely affected defense counsel's
"basic strategic decisions." Wood, 450 U.S. at 272. As this court has
recognized, the two requirements of the Sullivan test, "an actual con-
flict of interest resulting in an adverse effect on counsel's perfor-
mance, are often intertwined, making the factual analyses of them
overlap." Tatum, 943 F.2d at 375. The Wood Court's instruction to the
trial court amounts to no more than shorthand for an explicit two-part
test that the Wood Court did not even have occasion to quote in its
majority decision, much less to overrule. Thus, we hold that Wood
does not relieve Mickens of showing an adverse effect on his attor-
ney's representation.

C.

We now turn to Mickens' argument that the district court erred in
deciding that any actual conflict of interest did not adversely affect
his representation by Saunders. Because Sullivan requires Mickens to
demonstrate both an actual conflict and an adverse effect and because
we find that Mickens has failed to identify an adverse effect, as noted,
we do not reach his argument that he has established an actual conflict
of interest.

Conflicts claims present "mixed questions of law and fact that we
review de novo." Williams v. French, 146 F.3d 203, 212 (4th Cir.)
(citing Sullivan, 446 U.S. at 342), cert. denied, 525 U.S. 1155 (1999).
The district court's factual findings, however, "are subject to the
clearly erroneous standard set forth in Rule 52(a), Fed. R. Civ. P."
Fields v. Attorney General, 956 F.2d 1290, 1297 n.18 (4th Cir. 1992).
Because much of the adverse effect inquiry is heavily fact dependent,
we believe appropriate deference should be given to the findings of
the district court. In this respect, we note that a significant part of the
testimony was taken orally, and the district judge saw the witnesses
and heard them testify. We also note that the opinion of the district
court was complete, thorough, and thoughtful.

A defendant has established an adverse effect if he proves that his
attorney took action on behalf of one client that was necessarily
adverse to the defense of another or failed to take action on behalf of
one because it would adversely affect another. See Tatum, 943 F.2d
at 376. Thus, both taking action and failing to take actions "that are

                   16
clearly suggested by the circumstances" can indicate an adverse
effect. Tatum, 943 F.2d at 376. An adverse effect can arise at any
stage of the litigation including pretrial investigation or entry of a
plea. See Tatum, 943 F.2d at 376. In this case, Mickens argues that
Saunders' continuing duty to Hall prevented him from taking action
and pursuing strategies on behalf of Mickens. Of course, Sullivan
does not require Mickens to establish that he would have prevailed at
trial had Saunders pursued the strategies that Mickens now argues
Saunders rejected because of his conflict of interest.

Based on our holding in Tatum, 943 F.2d at 376, we agree with the
district court's articulation of a three-part standard for showing an
adverse effect which, as in any other civil action, Mickens must estab-
lish by a preponderance of the evidence. Mickens v. Greene, 74 F.
Supp. 2d at 603-04 (citing Freund v. Butterworth, 165 F.3d 839, 860
(11th Cir. 1999) (en banc)). We add that Freund is not different in
any significant way from our cases of Williams v. French, 146 F.3d
203, 212-13 (4th Cir. 1998), and Tatum, 943 F.2d at 376. First, the
petitioner must identify a plausible alternative defense strategy or tac-
tic that his defense counsel might have pursued. Second, the petitioner
must show that the alternative strategy or tactic was objectively rea-
sonable under the facts of the case known to the attorney at the time
of the attorney's tactical decision. In the language of Tatum, the peti-
tioner must show that the alternative strategy or tactic was "clearly
suggested by the circumstances." Tatum, 943 F.2d at 376. Finally, the
petitioner must establish that the defense counsel's failure to pursue
that strategy or tactic was linked to the actual conflict.

Mickens challenges this standard, arguing that neither this circuit
nor the Supreme Court has required a petitioner to establish a link
between an adverse effect and an actual conflict. Such a link is
implicit, however, in the Supreme Court's requirement that a peti-
tioner show that "his counsel actively represented conflicting inter-
ests" and "that a conflict of interest actually affected the adequacy of
his representation." Sullivan, 466 U.S. at 350, 349. As this court has
noted, the two requirements, "an actual conflict of interest resulting
in an adverse effect on counsel's performance, are often intertwined,
making the factual analyses of them overlap." Tatum, 943 F.2d at 375.
We conclude that the district court applied the appropriate standard
to evaluate the adverse effects asserted by Mickens.

                  17
The district court carefully considered each of Mickens' claims of
adverse effect. Mickens argues that his attorney failed to raise as a
defense that Hall had consented to sodomy; failed to investigate
Hall's background or to present any negative information about Hall
at trial; failed to engage in meaningful plea negotiations; failed to
present evidence at sentencing regarding Hall's pending charges or
strained relationship with his mother; failed to share information with
his co-counsel; failed to investigate leads indicating an alternative
perpetrator of the crime; failed to investigate Hall's juvenile file; and
failed to adequately cross-examine a key prosecution witness. The
district court considered each of these arguments in detail.

The district court concluded that a consent defense was not viable
because of evidence that Hall had been subjected to a choke hold and
stabbed some 140 times before or during the act of sodomy or
attempted sodomy. Mickens v. Greene, 74 F. Supp. 2d at 607. In addi-
tion, the district court noted that Mickens denied ever meeting Hall.
Mickens v. Greene, 74 F. Supp. 2d at 607. Because Saunders was
entitled to rely on the information provided by his client, consensual
sodomy was not a viable defense strategy at the time that Saunders
made his decision not to pursue it. See Royal v. Taylor, 188 F.3d 239,
248-49 (4th Cir. 1999); Roach v. Martin, 757 F.2d 1463, 1476-80 (4th
Cir. 1985).

Neither was the district court persuaded that Mickens suffered an
adverse effect because of Saunders' failure to investigate or to raise
negative information about Hall. The district court concluded that
Saunders did not possess sufficient information relating to rumors that
Hall was a male prostitute to warrant an investigation and that, in any
event, presentation of such evidence would have been counterproduc-
tive and would have been inconsistent with Mickens' assertions of
sympathy for the victim and his family. Mickens v. Greene, 74 F.
Supp. 2d at 608. By the same token, the district court concluded that
evidence related to Hall's assault charge on his mother would have
been of limited value. The only conceivably admissible purpose for
the evidence would have been impeachment of Hall's mother at the
sentencing hearing after she testified about the extent of her grief.
Mickens v. Greene, 74 F. Supp. 2d at 608. Choosing not to vilify the
mother of the victim cannot be the mark of incompetent counsel by
any measure. For obvious reasons, questioning the mother on that

                  18
point would have been an unattractive strategy. Ultimately, Saunders'
co-counsel was primarily responsible for the sentencing hearing, was
aware of this information, and made the decision not to use it at the
sentencing hearing; so this strategic decision was unrelated to
Saunders' conflict of interest. Mickens v. Greene, 74 F. Supp. 2d at
608.

The district court also concluded that Saunders' failure to pursue
plea negotiations was not based on his conflict of interest but rather
on the unwillingness of the prosecution to bargain. Mickens v.
Greene, 74 F. Supp. 2d at 609. The district court found as a non-
viable strategy Mickens' argument that evidence should have been
introduced as to Hall's claimed assault on his mother, and we agree.
Not only was it inconsistent with Mickens' expression of regret for
the mother's pain, proving that a decedent has asked for what he got
is a defense better reserved for the defense of prosecutions such as
murder and manslaughter. Mickens v. Greene, 74 F. Supp. 2d at 609-
10.

The district court also concluded that Saunders' failure to investi-
gate into matters identified by Mickens was either harmless or unre-
lated to Saunders' conflict of interest. Mickens v. Greene, 74 F. Supp.
2d at 610-12. In particular, the district court attributed Saunders' fail-
ure to inquire into leads as to possible alternative perpetrators of the
murder to the weak nature of the leads, rather than to Saunders' con-
flict of interest. Mickens v. Greene, 74 F. Supp. 2d at 611-12. The dis-
trict court also found that Saunders' failure to investigate Hall's
juvenile file, while unreasonable, created no adverse effect on
Saunders' representation of Mickens because the file contained no
information pertinent to Mickens' case. Mickens v. Greene, 74 F.
Supp. 2d at 611. The district court rejected Mickens' claim that
Saunders failed adequately to cross-examine a key prosecution wit-
ness as defaulted for failure to raise the issue in state court. Mickens
v. Greene, 74 F. Supp. 2d at 595-96. In any event, Mickens has failed
to establish any link between the failure to adequately cross-examine
the witness and Saunders' potential conflict of interest.

Finally, the district court considered and rejected Mickens' conten-
tion that Saunders concealed his prior representation of Hall from his
co-counsel out of a conflicting personal interest in remaining assigned

                  19
to the case. Mickens v. Greene, 74 F. Supp. 2d at 612-13. We con-
clude that the district court's findings are largely factual and are not
clearly erroneous. Because we agree with the district court that many
of Mickens' assertions of adverse effect were not viable defense strat-
egies and that any viable defense strategies were not linked to his
attorney's conflict of interest, we reject Mickens' Sixth Amendment
challenge to his conviction based on the theory that the claimed con-
flict had an adverse effect on the representation of his attorney.

IV.

Mickens' other allegations of error are easily addressed. Mickens
argues that the district court erred in rejecting his claims for ineffec-
tive assistance of counsel. Mickens offers two grounds upon which
his representation may be found ineffective under Strickland: his trial
counsels' inadequate pretrial investigation and failure of his trial
counsel to request a psychiatric evaluation for the resentencing. The
first of these claims is that counsel were ineffective because they
failed to investigate or to request an investigator for the purpose of
gathering evidence for a consent defense and for use in mitigation at
sentencing. The district court held that Mickens' claims of inadequate
investigation were defaulted because he had not fairly presented them
to the Virginia courts. See Matthews v. Evatt, 105 F.3d 907, 911 (4th
Cir. 1997). We agree with the district court. See Mickens v. Greene,
74 F. Supp. 2d at 598.

Mickens' second ineffective assistance claim focuses on his coun-
sels' failure to retain a mental health expert to evaluate him for the
resentencing. The district court rejected this argument on the merits,
it appearing that Mickens had been examined by a psychiatrist on the
motion of Saunders. On appeal, Mickens has not established what
new information a mental health expert would have discovered
beyond what counsel already knew at the time of the resentencing.
Moreover, this claim was adjudicated against Mickens on the merits
in state court. See Williams v. Taylor, 529 U.S. 362 (2000) (ruling
that 28 U.S.C. § 2254(d)(1) prohibits federal court from granting
habeas corpus relief with respect to claim adjudicated on the merits
in state court unless the resulting decision was contrary to, or
involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court). We also reject this claim.

                  20
Mickens also challenges the sufficiency of the evidence supporting
his conviction for attempted forcible sodomy. He further contends
that absent sufficient proof of the predicate offense of forcible sod-
omy his capital murder conviction under Va. Code Ann. § 18.2-31(5)
cannot stand. The district court concluded that this claim was
defaulted because it was not fairly presented to the state courts. See
Matthews, 105 F.3d at 911. Again, we agree with the district court.
See Mickens v. Greene, 74 F. Supp. 2d at 597.

In his reply brief Mickens raises the argument that the ineffective
assistance of his state habeas counsel excuses the default of additional
ineffective assistance of counsel claims raised for the first time in his
federal habeas petition. We have held that ineffective assistance by
state habeas counsel fails to establish cause. See Mackall v. Angelone,
131 F.3d 442, 449 (4th Cir. 1997) (en banc) ("Because [petitioner]
has no right to effective assistance of counsel in his state habeas pro-
ceedings, he cannot demonstrate cause to excuse the procedural
default of his claims that his trial and appellate counsel were constitu-
tionally ineffective."). The district court held Mickens' additional
claims defaulted on this ground. We adopt the district court's analysis
on this issue. See Mickens v. Greene, 74 F. Supp. 2d at 595.

V.

In summary, "[t]he purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding ." Strickland, 466
U.S. at 691-92 (emphasis added). The Sixth Amendment guarantee of
counsel does not guarantee an ideal or perfect representation. Thus,
Sullivan requires a petitioner challenging his conviction on conflict of
interest grounds to establish that his attorney's conflict of interest
adversely affected his lawyer's performance. The Supreme Court's
decision in Wood does not relieve a petitioner of this burden, even
when the trial court has failed to inquire into a potential conflict about
which it reasonably should have been aware. Subsequent to Wood, the
Strickland Court considered the arguments with respect to a rule of
prejudice in conflict of interest cases but explicitly rejected a per se
rule and found the rule to be "an actual conflict of interest adversely
affected his lawyer's performance." Strickland, 466 U.S. at 692. We
reject the automatic reversal rule and conclude that Mickens must

                  21
establish an adverse effect arising from his attorney's conflict of inter-
est. We deny the other arguments of Mickens for the reasons stated
above, and we deny his petition for habeas corpus relief.

Accordingly, the judgment of the district court is

AFFIRMED.7
         7

MICHAEL, Circuit Judge, dissenting:

The lawyer appointed to defend Walter Mickens on a capital mur-
der charge in Virginia had been representing the murder victim on
criminal charges at the time of his death. The state judge who made
the appointment was involved in both cases and knew or should have
known of the apparent conflict. No one told Mickens about the con-
flict problem, so he could not object. Once the back-to-back represen-
tation came to light after Mickens had been sentenced to death, the
apparent conflict proved to have been a real one. None of this poses
a problem, according to the majority, because the lawyer did a pass-
able job in defending Mickens. I respectfully dissent because there is
a serious Sixth Amendment violation. A trial judge has a constitu-
tional duty to look into an apparent conflict, even if there is no objec-
tion. See Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). When a trial
_________________________________________________________________

7 The theme of the dissent is candid and is repeated in various forms
and wordings from time to time. At first appearance, slip p. 22-23, it is

        When a trial judge ignores an apparent conflict, a defendant need
        only show that his lawyer labored under an actual conflict to
        establish a Sixth Amendment claim. The defendant is not
        required to show that the actual conflict adversely affected his
        lawyer's performance. (Italics added.)

While the theory is laudable, it searches for a perfect trial rather than
a fair trial. It would plainly require a new trial although there is no
adverse effect on the attorney's performance. So, even a defense as bril-
liant as that of Erskine would be impossible to justify if a technical con-
flict existed which had no effect on the performance. We do not believe
that this is the law, and are of opinion that a technical conflict, as here,
which had no effect on the performance of the attorney, is not such a
structural error that vacation of a conviction by way of habeas corpus is
called for.

                   22
judge ignores an apparent conflict, a defendant need only show that
his lawyer labored under an actual conflict to establish a Sixth
Amendment claim. The defendant is not required to show that the
actual conflict adversely affected his lawyer's performance. Here, the
judge who appointed the lawyer for Mickens ignored the apparent
conflict; and, as it turns out, the lawyer was actually saddled with a
genuine conflict while he represented Mickens. Mickens's Sixth
Amendment right to conflict-free counsel was therefore violated, and
he is entitled to a new trial.

I.

On March 20, 1992, Bryan Saunders was appointed to represent
Timothy Hall on assault and concealed weapon charges pending in
Newport News, Virginia. (It was Hall's mother who had accused him
of assaulting her.) Hall met promptly with Saunders, and they dis-
cussed the circumstances surrounding each of the charged crimes.
Within a matter of days, on March 30, 1992, Hall's nude body was
found near the James River, and foul play was evident. The gruesome
nature of the crime against Hall was prominently reported by the
news media. On April 3, 1992, state judge Aundria Foster dismissed
the charges against Hall on account of his murder. Judge Foster's
handwritten order of dismissal was entered on a single-page docket
sheet that identified Saunders as Hall's lawyer. The next business day
Judge Foster appointed Saunders to represent Mickens, who had been
charged in Hall's murder. Despite the fact that Saunders was repre-
senting Hall on criminal charges at the time of his death, Judge Foster
did not make any inquiry into whether Saunders would have a conflict
in representing Mickens. As the district court concluded, Judge Foster
knew or should have known of the "apparent possible conflict."
Mickens v. Greene, 74 F. Supp. 2d 586, 613-15 (E.D. Va. 1999).

Because Saunders's loyalty was subject to question when he was
appointed to represent Mickens, Saunders himself had the duty to
inform Mickens of his prior representation of Hall and to give Mick-
ens the opportunity to decline his services. See Va. Code Prof'l
Responsibility DR5-105(A) (Michie 1992). Saunders, however, said
nothing to Mickens, or to the court for that matter. Saunders went on
to represent Mickens at the guilt phase of his murder trial and at sen-
tencing. Although Saunders was assisted by court-appointed co-

                  23
counsel, Saunders was responsible for about ninety percent of the
workload. Saunders never disclosed to his co-counsel that he had rep-
resented Hall. Several years after Mickens had been sentenced to
death, Mickens's federal habeas counsel stumbled onto the fact that
Saunders was representing the murder victim (Hall) at the time of the
offense. That is the only reason we have this case today.

II.

The Sixth Amendment guarantees a defendant in a criminal case
the right to effective assistance of counsel, and this includes the right
to a lawyer who is free of conflicts of interest. See Cuyler v. Sullivan,
446 U.S. 335, 345-50 (1980). Trial judges have a special duty to
enforce the right to conflict-free counsel. See generally Holloway v.
Arkansas, 435 U.S. 475, 484 (1978) (emphasizing that "`[u]pon the
trial judge rests the duty of seeing that the trial is conducted with
solicitude for the essential rights of the accused'") (quoting Glasser
v. United States, 315 U.S. 60, 71 (1942)). A series of three Supreme
Court cases have clarified the duty of trial judges in policing conflict
situations and have established what a defendant must show to obtain
a new trial when the judge has ignored an apparent conflict.

In Holloway a public defender representing three defendants in a
robbery and rape case moved on conflict grounds to have separate
counsel appointed before the trial began. The trial judge "failed to
take adequate steps" to explore the risks of a conflict and denied the
motion. Holloway, 435 U.S. at 487. The Court held that when a trial
judge fails to inquire in such a circumstance, prejudice to the accused
is presumed, and automatic reversal is warranted. In other words, the
defendants were not required to show that their lawyer labored under
an actual conflict of interest or that an actual conflict adversely
affected his performance. See id. at 488-89. The Holloway Court
explicitly left open the question of whether (or under what circum-
stances) the Sixth Amendment imposes an independent duty on a trial
judge to inquire into a potential conflict when there is no objection
or motion. See id. at 483-84.

Holloway was followed by Cuyler v. Sullivan, 446 U.S. 335
(1980), where two privately retained lawyers represented three defen-
dants who were accused of the same murders but tried separately. In

                  24
Sullivan the only defendant to be convicted claimed that his right to
conflict-free counsel had been violated even though there was no
timely objection to the multiple representation. The Court said that
the defendant's claim raised the issue "expressly reserved in Hol-
loway v. Arkansas," that is, "whether a state trial judge must inquire
into the propriety of multiple representation even though no party
lodges an objection." Sullivan, 446 U.S. at 345. The Supreme Court
held that "[u]nless the trial court knows or reasonably should know
that a particular conflict exists, the court need not initiate an inquiry."
Id. at 347. In other words, a trial judge has a constitutional duty to
inquire when a conflict is sufficiently apparent. Because the situation
in Sullivan did not suggest that the trial judge should have reasonably
known about any conflict, the judge was under no affirmative duty to
inquire. See id. For that particular situation -- when the trial judge
has no duty to inquire -- the Court in Sullivan announced the defen-
dant's burden for establishing a Sixth Amendment violation: he "must
demonstrate that an actual conflict of interest adversely affected his
lawyer's performance." Id. at 348. Sullivan, however, did not articu-
late the defendant's burden when a trial court has a duty to inquire,
but fails to fulfill it.

Wood v. Georgia, 450 U.S. 260 (1981), answered the question left
open in Sullivan: more specifically, what must a defendant demon-
strate when he did not raise the conflict issue at trial, but the situation
nevertheless triggered the judge's duty to inquire and the judge did
nothing. In Wood two individual defendants in an obscenity case had
been represented by a lawyer hired by their employer, and the record
suggested that the employer might have been more interested in press-
ing broader legal principles than in seeking lenient treatment for its
employees. See id. at 268, 272-74. There was no objection to the rep-
resentation, but the trial judge was faced with an "apparent" conflict,
one that was clearly suggested by the circumstances. See id. at 262.
Because there was an apparent conflict, Wood held that the judge had
a constitutional duty to inquire, despite the absence of an objection.
See id. at 272-74. This is consistent with Sullivan, which requires a
trial court to "initiate an inquiry" when it "knows or reasonably
should know that a particular conflict exists." Sullivan, 446 U.S. at
347. In Wood the trial court's failure to fulfill its constitutional duty
to inquire carried the following consequence, according to the
Supreme Court:

                   25
        [The state] court should hold a hearing to determine whether
        the conflict of interest that this record strongly suggests
        actually existed at the time of the probation revocation or
        earlier. If the court finds that an actual conflict of interest
        existed at that time, and that there was no valid waiver of
        the right to independent counsel, it must hold a new revoca-
        tion hearing that is untainted by a legal representative serv-
        ing conflicting interests.

Wood, 450 U.S. at 273-74. Simply put, the petitioners were only
required to show an actual conflict. They were not required to show
that the actual conflict adversely affected their lawyer's performance.

Holloway, Sullivan, and Wood deal with three separate circum-
stances in which conflict of interest claims arise under the Sixth
Amendment. The first is when a defendant objects to his representa-
tion on the basis of a conflict and the trial judge fails to inquire into
the merits of the objection. In this situation, the defendant is entitled
to automatic reversal and a new trial. See Holloway, 435 U.S. at 488-
89. The second circumstance is when there is no objection to the rep-
resentation, but the judge knew or reasonably should have known
about an apparent conflict. If the judge fails to inquire in this situa-
tion, the defendant is only required to show that his lawyer labored
under an actual conflict. See Wood, 450 U.S. at 273-74. The third cir-
cumstance is when there is no objection, and the conflict is not appar-
ent to the judge. In that case, the defendant must show that his lawyer
labored under an actual conflict and that the conflict adversely
affected his lawyer's performance. See Sullivan, 446 U.S. at 348.

The majority's critical mistake is overlooking the careful distinc-
tion the Supreme Court made in Sullivan between the second and
third situations. The distinction turns on whether the trial court faces
an apparent conflict. The majority ignores this distinction and con-
cludes that unless there is an objection -- no matter how obvious the
conflict might appear to the trial judge -- the defendant must still
demonstrate both actual conflict and adverse effect when the judge
has failed in his constitutional duty to inquire.

The majority's mistake begins with its treatment of Sullivan. The
Supreme Court in Sullivan held that whether or not there is an objec-

                  26
tion, a trial court has a duty to inquire into an apparent conflict. The
Court was clear: "Unless the trial court knows or reasonably should
know that a particular conflict exists, the court need not initiate an
inquiry." Id. at 347. The majority erroneously concludes that this
statement is nothing more than a recitation of the Holloway holding,
that is, a trial court must inquire into a conflict when there is an objec-
tion. See ante at 12. I respectfully suggest that the majority's reading
is wrong for several reasons. First, if Sullivan was simply echoing
Holloway, surely the Court would have cited Holloway. Instead, the
Court cited to Foxworth v. Wainwright, 516 F.2d 1072, 1076-77 (5th
Cir. 1975), and United States v. Medel, 592 F.2d 1305, 1312-13 (5th
Cir. 1979), both of which stand for the principle that when a conflict
is sufficiently apparent, a trial judge has a constitutional duty to
inquire, even if there is no objection.* Second, the Court in Sullivan
pointed out that the defendant's claim raised the issue "expressly
reserved in Holloway v. Arkansas," specifically, "whether a state trial
judge must inquire into the propriety of multiple representation even
though no party lodges an objection." Sullivan, 446 U.S. at 345. The
Court, therefore, was careful to explain that the defendant's claim
raised an undecided issue: whether the trial court has any Sixth
Amendment duty to inquire into a conflict situation when there is no
objection. The Court decided this issue by declaring that a trial court
"must initiate an inquiry" when it "knows or reasonably should know
that a particular conflict exists." Id. at 347. This statement was not a
simple recitation of Holloway’s holding, but rather a new constitu-
tional rule. Third, the Court's actual analysis of whether "the trial
court [knew] or reasonably should [have known]" that a conflict
existed shows that the Court was going beyond Holloway, where the
_________________________________________________________________

* In Foxworth the Fifth Circuit vacated a conviction because the trial
court failed to inquire into an apparent conflict, even though the record
did not reflect an objection. See 516 F.2d at 1080 n.17. Significantly, in
these circumstances, the court held that a defendant need only show an
actual conflict and need not show adverse effect. See id. at 1077 n.7.

In Medel the Fifth Circuit said, "We . . . reject [the defendants'] con-
tention that the trial court was under an affirmative duty to inquire into
the possibility of a conflict of interest. Defense counsel . . . never indi-
cated to the trial court that a conflict might exist. Nor do we find any-
thing in the record that should have alerted the Court to such a
possibility." 592 F.2d at 1312-13 (emphasis added).

                   27
presence of an objection dictated the outcome. The Sullivan Court, in
deciding that the trial judge was under no duty to inquire, noted that
there was no objection to the representation and that the defense strat-
egy did not suggest a conflict. See Sullivan, 446 U.S. at 347. If the
defendant's Sixth Amendment claim had been only a Holloway claim,
the lack of an objection would have (by itself) defeated the claim.
There would have been no reason for the Court to explain that the
defense strategy did not suggest the presence of any conflict. Fourth,
the majority's reading of Sullivan is contrary to the plain language of
the holding in the case. The Supreme Court said that a trial court has
a duty to inquire if it "should have known" about a conflict. This
means that the trial court's duty to inquire is not limited to situations
where there is an actual objection. Accordingly, it is clear that Sulli-
van held that in the absence of an objection, a trial judge still has a
duty to inquire if the conflict is sufficiently apparent.

In light of Sullivan the majority's analysis fails as a matter of logic.
The majority holds that in every case where there was no objection,
the convicted defendant (in order to obtain relief) must show actual
conflict and adverse effect, regardless of whether there was an appar-
ent conflict when the case was tried. Under the majority's rule, it
makes no difference whether the trial judge had a constitutional duty
to inquire because the defendant must always prove the same two
conditions. Sullivan, however, dictates that there is a distinction
between cases in which the trial judge has a duty to inquire and those
in which he does not. As a result, it is simply wrong to hold every
defendant to the same burden regardless of whether the trial court was
under a duty to investigate an apparent conflict. Wood v. Georgia
makes that clear.

This brings me to the majority's next critical mistake, its treatment
of Wood v. Georgia. The plain language of Wood provides that when
a trial court fails to fulfill its constitutional duty to inquire and there
was no objection, a defendant is only required to establish an actual
conflict. Wood, 450 U.S. at 273-74. The majority does not deny that
Wood's remand instructions say as much. The majority, however,
advances two reasons why we should not take Wood literally, but nei-
ther reason is persuasive. First, the majority says that to dispense with
a showing of adverse effect, we must read Wood to have overruled
Sullivan by implication. The majority then cites the canon that "over-

                  28
ruling by implication is not favored." Ante at 15 (citing Catawba
Indian Tribe v. South Carolina, 978 F.2d 1334, 1347 (4th Cir. 1992)).
However, as shown above, Wood did not overrule Sullivan in any
way. Rather, Wood simply answered the question left open in Sulli-
van. As a result, the cited canon has no relevance to this case. Second,
the majority claims that Wood's reference to"actual conflict" in its
holding is mere "shorthand" for requiring both actual conflict and
adverse effect. Ante at 16. The majority arrives at this conclusion
because the Wood Court, in discussing the facts of the case, ques-
tioned whether the lawyer's performance ("his basic strategic deci-
sions") were influenced by a conflict. See ante at 16 (quoting Wood,
450 U.S. at 272). The majority concludes that if only an actual con-
flict was required, the Court would not have made any reference to
whether the lawyer's work had been affected. However, the fact that
a lawyer's performance was affected can be evidence of an actual
conflict. Of course, a defendant can establish that his lawyer labored
under an actual conflict without showing a detrimental effect on the
representation. Nevertheless, the fact that a lawyer fell down in his
performance may be a strong indication that he did labor under an
actual conflict. See United States v. Tatum, 943 F.2d 370, 375 (4th
Cir. 1991) ("The two requirements, an actual conflict of interest
resulting in an adverse effect on counsel's performance, are often
intertwined, making the factual analyses of them overlap."). There-
fore, it is not surprising that the Wood Court mentioned the quality of
performance, even though the holding only required a showing that
the lawyer labored under an actual conflict.

The final mistake the majority makes is not acknowledging the
importance of Sullivan and Wood to our system of justice. Again, the
Supreme Court distinguishes between the situation where the trial
judge ignores an obvious conflict and the situation where the conflict
is not apparent. This distinction takes into account the broader harm
caused if a judge conducts a trial while ignoring an apparent conflict.
Allowing a judge to ignore a conflict "invites disrespect for the integ-
rity of the court," United States v. Wheat, 486 U.S. 153, 162 (1988)
(internal quotations marks omitted), and "result[s] in the erosion of
public confidence in the integrity of the bar and of the legal system."
United States v. Collins, 920 F.2d 619, 627 (10th Cir. 1990) (internal
quotation marks omitted). Courts in our country "have an independent
interest in ensuring that criminal trials are conducted within the ethi-

                  29
cal standards of the profession and that legal proceedings appear fair
to all who observe them." Wheat, 486 U.S. at 160. These concerns
require us to treat a defendant's claim that a judge ignored an appar-
ent conflict differently from other conflict of interest claims. The
majority, however, treats all conflict claims the same, unless there is
an objection. Under the majority's approach a defendant can be
required to take a lawyer with divided loyalties so long as he does a
tolerable job, and the defendant does not lodge a timely objection.
The Sixth Amendment requires more. A criminal defendant has the
right from the outset of proceedings to a lawyer who is free of con-
flicts. Yet the majority would impose no added consequence when a
trial judge knowingly allows an unwitting defendant to proceed with
a lawyer who has an apparent conflict. In this situation, the majority
holds, the defendant's burden is the same as when the conflict is not
known to the court until after a guilty verdict. In both cases, the
defendant must show both an actual conflict and adverse effect,
according to the majority. But under Sullivan and Wood, when the
conflict is obvious and the trial judge ignores his duty (and opportu-
nity) to see that the Sixth Amendment right is protected, the Supreme
Court lessens the defendant's burden. He need only show that his law-
yer had an actual conflict. This lower burden on defendants encour-
ages trial courts to pay strict attention to fundamental rights, and it
confirms that our system is dedicated to ensuring fairness. The major-
ity opinion, which goes against the decisions of the Supreme Court,
does nothing to encourage trial courts to take the initiative in policing
obvious conflicts of interest. That is unfortunate.

III.

The state judge faced (or actually created) an apparent conflict
when she appointed Bryan Saunders to represent Walter Mickens in
his capital murder case. The judge should have investigated the con-
flict problem at once and resolved it before it was too late. Instead,
Mickens was put on trial and sentenced to death with a lawyer who
labored under an actual conflict of interest. See Mickens v. Taylor,
227 F.3d 203, 213-17 (4th Cir. 2000), vacated & reh'g granted, Oct.
23, 2000 (explaining why Mickens's lawyer had an actual conflict).
Mickens must answer to the charge of capital murder, but he should
answer through a lawyer whose representation is not clouded by a
conflict. Because Mickens's Sixth Amendment right to conflict-free

                  30
counsel was violated, I would award him a writ of habeas corpus
unless the Commonwealth of Virginia grants him a new trial.

I respectfully dissent, and Judge Motz and Judge King join with
me.

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