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

No. 06-3995
NEFTALY RODRIGUEZ,
                                            Petitioner-Appellee,
                               v.

NEDRA CHANDLER, Warden,
Dixon Correctional Center,
                                     Respondent-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
        No. 02 C 2184—Harry D. Leinenweber, Judge.
                         ____________
      ARGUED MAY 29, 2007—DECIDED JULY 5, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
  EASTERBROOK, Chief Judge. A state judge erroneously
disqualified one of the two lawyers representing Neftaly
Rodriguez, who was convicted of murder and sentenced
to 29 years in prison. Three years ago we held that
this disqualification violated the sixth amendment (ap-
plied to the states by the fourteenth) by depriving him of
his chosen counsel, but that such an error does not auto-
matically vitiate the conviction. Rodriguez v. Chandler,
382 F.3d 670 (7th Cir. 2004) (Rodriguez I). A writ of
habeas corpus should issue, we held, only if the error had
an adverse effect on the defense.
2                                               No. 06-3995

  After the Supreme Court denied certiorari, 543 U.S. 1156
(2005), the district court first ruled that Rodriguez bore
the burden of persuasion on this issue and then granted
summary judgment against him after concluding that he
had not adduced any reason to think that the erroneous
disqualification affected the trial. Rodriguez v. Chandler,
No. 02 C 2184 (N.D. Ill. June 21, 2006).
  Five days later, the Supreme Court held in United States
v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), that an errone-
ous failure to allow a defendant’s chosen lawyer to repre-
sent him at trial violates the Constitution without re-
gard to consequences—that it is a “structural error” that
always requires a new trial if an objection has been
preserved. The district court then issued a writ of habeas
corpus requiring Illinois to release Rodriguez unless he
is retried within 120 days. We stayed that order to give
the state time for appeal.
   In this court the parties limited their briefs to a single
question: whether Gonzalez-Lopez governs not only cases
in which defendant hires one lawyer at a time (the situa-
tion in Gonzalez-Lopez) but also the situation in which
defendant has two lawyers. The state’s theory is that one
“counsel of choice” is enough; Rodriguez responds that
Illinois does not limit a (paying) defendant to just one
lawyer and therefore cannot disqualify counsel to come
down to that number.
  Rodriguez has the better of this argument. After the
district court in Gonzalez-Lopez refused to allow Low to
represent defendant at trial, he hired Dickhaus—who was,
we must assume, his second choice. Rodriguez had
choices 1 and 2 (Brent and Grimaldi) on hand from the
start; when one was knocked out, the other represented
him at trial. That’s exactly what happened for Gonzalez-
Lopez. Illinois does not argue that Grimaldi was #1 in
Rodriguez’s ranking and Brent #2, and it is hard to see
No. 06-3995                                             3

how a court could distinguish them. It would not have
mattered in Gonzalez-Lopez if Dickhaus had been asked
first and had turned Gonzalez-Lopez away because of a
scheduling conflict, only to take the case later when Low
could not handle the trial. The Supreme Court did not
distinguish among degrees of preference. Fact is that
both Gonzalez-Lopez and Rodriguez found two lawyers
they trusted but were allowed to use the services of only
one. The injury may have been greater for Rodriguez,
who thought that having two lawyers would help (they
could share the work, and two sets of ideas may be better
than one) but ended up represented at trial by just one.
  But does Gonzalez-Lopez apply in the first place? Which
decisions supply the governing law, no less than whether
the collateral attack is untimely, is a subject that a
court may and often should raise on its own. See Day v.
McDonough, 547 U.S. 198 (2006). Rodriguez’s convict-
ion became final years before Gonzalez-Lopez was an-
nounced, and we know from both Teague v. Lane, 489 U.S.
288 (1989), and 28 U.S.C. §2254(d)(1) that a federal court
should apply the law as it was when the state’s process
ended, not the law as it is when the federal judiciary
turns to the subject. When Rodriguez’s conviction became
final, no decision of the Supreme Court of the United
States treated mistaken disqualification as a structural
error. Our opinion of 2004 discussed the state of the law
during the 1990s and the early part of this decade; it
shows that the law was unsettled, which normally means
that there cannot be federal collateral relief. There was
a conflict among the circuits about how to handle this
situation, and although four Justices concluded in
Gonzalez-Lopez that our solution was sound, see 126 S. Ct.
at 2568 (Alito, J., dissenting), five Justices took a view
more favorable to Rodriguez. Resolution of such uncer-
tainties does not apply retroactively.
4                                               No. 06-3995

  We asked the parties to file supplemental memoranda
concerning the retroactive application of Gonzalez-Lopez,
and after considering the parties’ arguments we con-
clude that the case must be resolved under the law as
we stated it in 2004.
  True enough, we held in Rodriguez I that the doctrine
of harmless error, as applied on collateral review, specifies
how federal courts evaluate the consequences of state
courts’ mistakes; it is not a rule concerning what state
courts must do and therefore may change without being
thought impermissibly retroactive. See 382 F.3d at 674.
The Supreme Court regularly elaborates on doctrines of
harmless error without thinking that it needs to justify
their application to old cases under the Teague standard.
See, e.g., Brecht v. Abrahamson, 507 U.S. 619 (1993);
O’Neal v. McAninch, 513 U.S. 432 (1995).
  What the Court did in Gonzalez-Lopez, however, differs
from a refinement of harmless-error analysis for the
federal judiciary. It held, instead, that a primary meaning
of the sixth amendment is that judges must respect defen-
dants’ choice of lawyer unless a good reason requires
disqualification. The Court made it clear that its deci-
sion with respect to both defendants’ legal entitlement
and the structural-error analysis was driven by the
Constitution. Gonzalez-Lopez did not articulate a rule
that applies only in federal court, leaving states to devise
their own approach independently. The Court announced
a constitutional norm, applicable in all courts within
the jurisdiction of the United States. And a new rule
telling states how their own courts must behave rarely
applies to prosecutions that became final before the
rule’s announcement.
  A new rule of constitutional law applies retroactively
in collateral proceedings only if it is substantive (that is,
if it places primary conduct outside the reach of the
No. 06-3995                                               5

criminal sanction) or is a “ ‘watershed rul[e]’ of criminal
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Saffle v. Parks, 494
U.S. 484, 495 (1990); Whorton v. Bockting, 127 S. Ct. 1173,
1180 (2007). Gonzalez-Lopez does not fit in either category.
It does not insulate any conduct from criminal punish-
ment. It isn’t a “watershed” equivalent to Gideon v.
Wainwright, 372 U.S. 335 (1963); Rodriguez does not
deny that he enjoyed the assistance of competent counsel.
And it does not protect “the fundamental fairness and
accuracy of the criminal proceeding.” Quite the contrary,
Gonzalez-Lopez rejected the approach we had taken in
Rodriguez I precisely because, in the majority’s view, the
right to be represented by counsel of choice protects an
interest in autonomy rather than the accuracy of the trial.
The holding of Gonzalez-Lopez is that the right’s nature
requires the trial to be rerun even when there was no
prejudice. A rule so stated is not applied retroactively on
collateral attack, a point made earlier this year by
Whorton, which held that Crawford v. Washington, 541
U.S. 36 (2004), is not retroactive.
  This conclusion leaves the question we posed in 2004,
reflecting the law as it then was: whether Rodriguez
suffered any adverse effect from the mistaken disqualifica-
tion. Unfortunately, neither side’s appellate brief devotes
much space to that question; counsel were too dazzled by
Gonzalez-Lopez. The discussion that does appear in the
briefs does not distinguish clearly between the need to
show some kind of effect as an element of the constitu-
tional wrong, and the evaluation of harmless error if
the Constitution has been violated. These need to be
analyzed separately, as Gonzalez-Lopez did. Our original
opinion’s failure to keep these subjects distinct may have
influenced the parties’ briefing choices on appeal.
  Rodriguez I treated adverse effect as a modification of
the “prejudice” component in Strickland v. Washington,
466 U.S. 668 (1984), and thus as an element of the consti-
6                                             No. 06-3995

tutional wrong. This implies that the petitioner bears the
burden of persuasion, as the district court held, but our
opinion did not address that subject and it may need
further consideration. We also invite the parties to ad-
dress whether the district court needed to hold an eviden-
tiary hearing before reaching a decision about adverse
effect, and whether there is any independent role for
harmless-error analysis if an adverse effect should be
established. Counsel also should ensure that both of the
lawyers representing Rodriguez were retained (as we have
been assuming), given the Supreme Court’s view that “the
right to counsel of choice does not extend to defendants
who require counsel to be appointed for them.” Gonzalez-
Lopez, 126 S. Ct. at 2565. See also Wheat v. United States,
486 U.S. 153, 159 (1988). Accordingly, we direct counsel
for the state to file a brief addressing these subjects by
August 2, 2007. Counsel for Rodriguez will have until
August 23, 2007 to respond, and a reply brief may be filed
no later than September 4, 2007.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—7-5-07
