                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4114
KIM HUYNH,
                                               Petitioner-Appellee,
                                 v.

EDWIN R. BOWEN,
                                           Respondent-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 01 C 7523—Joan Humphrey Lefkow, Judge.
                          ____________
       ARGUED JUNE 4, 2004—DECIDED JULY 6, 2004
                    ____________




 Before FLAUM, Chief Judge, and DIANE P. WOOD and
EVANS, Circuit Judges.
  EVANS, Circuit Judge. Kim Huynh was convicted of first
degree murder and aggravated battery following a bench
trial in the circuit court of Cook County, Illinois. Following
his conviction he filed a motion for a new trial, arguing that
he was denied his Sixth Amendment right to the effective
assistance of counsel because his trial lawyer, Michael
Johnson, had a conflict of interest growing out of his
simultaneous representation of Huynh’s codefendant, Phuc
2                                                No. 03-4114

Truong. The trial court denied the motion and the Illinois
Appellate Court affirmed on Huynh’s direct appeal. The
Supreme Court of Illinois denied Huynh’s petition for leave
to appeal.
  Huynh then filed a petition for a writ of habeas corpus in
federal court raising one issue: that attorney Johnson had
a conflict of interest which deprived Huynh of the effective
assistance of counsel. The district court granted the writ
and the State of Illinois appeals.
  In September 1996, outside Tony’s Pool Hall on Leland
Avenue at Sheridan Road in Chicago, Huynh, Truong, and
other members of a gang known as the “Gap Family” ini-
tiated a fight that resulted in the murder of a rival gang
member, Kyanh Duong. Various witnesses testified during
the trial about their observations on the day of the murder.
Minh Nguyen, for example, saw a member of the Gap
Family chasing some of his friends down an alley. He ran
toward the scene and heard three or four gunshots. He
testified that he saw Huynh putting a shiny dark object into
his waistband. Forensics testimony showed that Huynh’s
left palm was exposed to gunshot residue, indicating that he
had either handled, fired, or was in close proximity to a
weapon when it was discharged. Other witnesses identified
Huynh as a person involved in an altercation before, during,
and after the murder. At the close of the evidence, the state
trial judge found Huynh (and Truong) guilty. Huynh was
sentenced to a term of 20 years.
  The contention in Huynh’s petition for a federal writ of
habeas corpus was that attorney Johnson had a conflict of
interest. The basis for the claim grew out of the prosecutor’s
opening statement, where he said that Truong had fought
with a rival gang member the night before the fight and had
vowed revenge. This was the first that defense counsel
heard of this incident, one that gave Truong a motive for
the murder. Attorney Johnson successfully moved to
No. 03-4114                                                  3

exclude any evidence of the incident. Huynh now contends
that the exclusion of Truong’s motive evidence harmed him,
apparently because it would somehow shift the blame to
Truong. A nonconflicted attorney, representing only the
interests of Huynh, would have, the argument goes, wanted
the evidence of Truong’s motive before the jury. The district
court accepted this argument and granted the writ.
  On appeal, the State contends that there was no imper-
missible conflict of interest and that the state appellate
court’s decision to that effect was not contrary to or an un-
reasonable application of Cuyler v. Sullivan, 446 U.S. 335
(1980), the decision the district court embraced when it
granted the writ.
  We must evaluate Huynh’s case under the Antiterrorism
and Effective Death Penalty Act, specifically 28 U.S.C.
§ 2254(d). Under the statute, federal habeas relief may not
be granted with respect to a claim which was adjudicated on
the merits in the state court unless the adjudication:
    (1) resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly estab-
    lished Federal law, as determined by the Supreme
    Court of the United States; or
    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.
To show that a decision was “contrary to” Supreme Court
precedent, a petitioner can show that the state court
reached a conclusion opposite to that of the Supreme Court
on a question of law or that the state court decided a case
differently than the Supreme Court “on materially indistin-
guishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). To show that a state court decision resulted in an
“unreasonable application” of Supreme Court precedent, a
petitioner must show that although the state court identi-
fied the correct rule of law, it unreasonably applied it to the
4                                                No. 03-4114

facts of his case. Williams. An unreasonable application is
not simply what we might deem to be an incorrect or
erroneous application of federal law. The standard is not
met just because a federal court might disagree with the
decision of the state court.
  Because Huynh did not object to attorney Johnson’s dual
representation, we agree with the State that the applicable
Supreme Court precedent is found in Cuyler. In that case
the Court determined that in order to “establish a violation
of the Sixth Amendment, a defendant who raised no ob-
jection at trial must demonstrate that an actual conflict of
interest adversely affected his lawyer’s performance.” 446
U.S. at 348. Not all cases of multiple representation result
in a conflict of interest, and furthermore the mere possibil-
ity of a conflict is not sufficient to establish a violation of
the Sixth Amendment.
  Examining whether the decision of the Illinois Appellate
Court was an unreasonable application of Cuyler, we note
that the court looked to see whether an attorney with no
obligation to a codefendant would have actually employed
a different strategy or tactic. The court said that if it was
necessary to speculate about whether a different strategy
would have been employed, uncertainty is resolved against
the defendant. The court determined that there was no ac-
tual conflict or even a potential conflict. Huynh’s arguments
were termed speculative.
  We cannot say that the state court’s decision was an
unreasonable application of Cuyler. Huynh was charged
under an accountability theory. Under Illinois law a person
is legally accountable for the conduct of another when,
“[e]ither before or during the commission of an offense, and
with the intent to promote or facilitate such commission, he
solicits, aids, abets, agrees or attempts to aid such other
person in the planning or commission of the offense.” 720
ILCS 5/5-2(c). A defendant’s mere presence at the scene of
No. 03-4114                                                 5

an offense is not by itself sufficient to sustain a conviction
on an accountability theory. But a defendant may be held
accountable for the acts of another pursuant to a common
plan or purpose. People v. Taylor, 164 Ill. 2d 131 (1995). The
“common design” rule provides that acts committed by one
person in furtherance of a common plan are considered to
be the acts of all parties to the agreement. All are equally
responsible for the consequences of the acts. People v.
Cooper, 194 Ill. 2d 419 (2000).
   Given the accountability theory under which the state
was proceeding, it seems likely that many, if not most,
attorneys would have moved just as Johnson did to exclude
the revenge testimony. Contrary to Huynh’s argument, the
testimony would not reduce his involvement in the fight.
Huynh’s presence at the scene of the fatal shooting, his
participation in the attack, eyewitness testimony that he
placed some shiny metal object in his waistband, his flight
from the scene of the crime, and the fact that he tested
positive for gunshot residue are what supported his con-
viction for the murder. It is true that the excluded “revenge”
testimony would have given Truong a motive for the crime.
But under the accountability theory, it would also have
provided an explanation for Huynh’s participation in the
melee; that is, that the entire incident was gang-related,
and Huynh and Truong were both members of the “Gap
Family” gang. Excluding testimony about a motive for the
murder by a Gap Family member was as helpful to Huynh
as it was to Truong. Furthermore, even if some attorneys
would have seen the situation differently and decided not to
move to exclude the evidence, that does not show that the
Illinois Appellate Court decision was an unreasonable
application of Cuyler. Especially because the state was
proceeding on an accountability theory, there may well be
competing reasonable approaches to how to mount a
defense for Huynh. The Illinois Appellate Court decision
that Huynh cannot show that Johnson had an actual
6                                               No. 03-4114

conflict of interest which adversely affected his performance
was not contrary to Cuyler. The judgment of the district
court is REVERSED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-6-04
