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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                     No. 11-40331                      December 6, 2013
                                   c/w No. 11-40846
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

RUDY GUTIERREZ, also known as Rudolpho Gutierrez,

                                                 Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:10-CV-56
                            USDC No. 2:06-CR-380-4




Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       The pro se petitioner in this habeas case, Rudolpho “Rudy” Gutierrez,
was convicted by a jury of conspiracy to possess with intent to distribute more
than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and
846, and money laundering in violation of 18 U.S.C. § 1956(a)(1) and (h). He


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                               No. 11-40331 c/w 11-40846
was sentenced to concurrent 360- and 240-month terms of imprisonment, and
two concurrent ten-year terms of supervised release.
      This appeal concerns Gutierrez’s argument that he received ineffective
assistance of counsel due to his pre-trial counsel’s conflict of interest. 1 On
December 11, 2006, Amador Garcia was appointed to represent Gutierrez
during his arraignment. On January 4, 2007, Gutierrez obtained new counsel
and Garcia withdrew. On May 18, 2007, Garcia was appointed to represent
Carlos Martinez, a co-conspirator who had previously pleaded guilty and who
testified at trial against Gutierrez in the hope of obtaining a shorter sentence.
A previous panel of this court affirmed Gutierrez’s convictions on direct appeal,
including holding that there was no plain error in the admission of Martinez’s
testimony because “other evidence established the same facts” as those
testified to by Martinez, “and there is no reasonable probability that the jury
would not have found Gutierrez guilty without Martinez’s testimony.” United
States v. Gutierrez, 292 F. App’x 412, 415-16 (5th Cir. 2008). That panel,
however, expressly reserved the issue of Gutierrez’s ineffective assistance of
counsel claims. See id. at 417.
      Gutierrez subsequently filed a motion for habeas relief pursuant to 28
U.S.C. § 2255. In his petition, Gutierrez argued, inter alia, that his trial
counsel was ineffective for failing to object to Martinez’s testimony on the
ground that Martinez was represented by Garcia, a court-appointed attorney
who had earlier represented Gutierrez during the same proceeding. Before the
government filed an answer, Gutierrez filed an addendum to his § 2255 motion,
raising additional constitutional and sentencing issues. See Fed. R. Civ. P.
15(a) (allowing amendment of a pleading once as a matter of course in such
circumstances). After the district court had granted the government’s motion


      1   Gutierrez’s motion for leave to file a supplemental reply brief is GRANTED.
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                           No. 11-40331 c/w 11-40846
for an extension of time in which to file a response to the petition, Gutierrez
filed an opposition to the motion. Attached to the opposition notice was a
memorandum of law in support of his § 2255 motion in which Gutierrez argued
for the first time that he was denied effective assistance of counsel by Garcia
due to Garcia’s subsequent representation of Martinez. The district court
ultimately rejected all of Gutierrez’s claims and dismissed his § 2255 motion
with prejudice. With regard to the issue of the ineffectiveness of Garcia’s
representation, the district court stated only that:
      In the Court’s order to the government to respond to Movant’s §
      2255 petition, the Court noted that “ . . . the United States should
      also provide an affidavit from Amador Garcia addressing the claim
      that Garcia’s successive representation of Gutierrez and then a
      government witness at trial, Carlos Martinez, violated
      [Gutierrez’s] Sixth Amendment rights.” The government
      acknowledges that it mistakenly overlooked this instruction, but
      respectfully argues that the Court need not hear from Mr. Garcia
      because Movant cannot establish prejudice. In his reply to the
      government’s response, Movant does not argue that an affidavit
      would assist him in establishing prejudice nor request that the
      affidavit be ordered. The Court finds that, because Movant cannot
      establish prejudice, an affidavit is not necessary on this issue.
      Gutierrez appealed.      This court granted Gutierrez a certificate of
appealability (COA) with respect to:
      (1) whether this court should take cognizance of the unraised issue
      of whether the district court abused its discretion by implicitly
      denying leave to amend the § 2255 motion to add a claim contained
      in Gutierrez’s “Memorandum of Law in Support of Motion to
      Vacate, Set Aside or Correct Sentence,” which was dated April 7,
      2010, and file stamped April 13, 2010, that his court-appointed
      attorney’s subsequent representation of a government witness
      constituted a violation of his right to effective assistance of counsel
      and (2) if this court takes cognizance of the unraised issue, whether
      it has merit. See § 2253(c).
      We review the district court’s implicit denial of leave to amend the § 2255
motion to add the claim that Garcia provided ineffective assistance of counsel
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for an abuse of discretion. See United States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996). Gutierrez’s amended claim was timely filed under § 2255(f) as it “relates
back” to Gutierrez’s claim that his trial counsel was ineffective for failing to
object to Garcia’s subsequent representation of the witness, because both
claims arise from the same “common core of operative facts.” See Mayle v.
Felix, 545 U.S. 644, 664 & n.7 (2005); Fed. R. Civ. P. 15(c)(1)(B). Nothing in
the record indicates that Gutierrez acted in bad faith or that the government
would be prejudiced by the amendment. See Wright v. Allstate Ins. Co., 415
F.3d 384, 391 (5th Cir. 2005). Nor was it readily apparent that Gutierrez’s
amended claim would have been futile on its merits. See id. Accordingly, the
district court abused its discretion by implicitly denying Gutierrez leave to
amend his § 2255 motion. See Riascos, 76 F.3d at 94.
      However, on the facts before us, we conclude that Gutierrez’s ineffective
assistance of counsel claim fails on the merits. On appeal, as in the district
court, Gutierrez argues that he received ineffective assistance of counsel
because Garcia worked under a conflict of interest, and that the prejudice
resulting from the conflicted representation should be presumed. See, e.g.,
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). We have held that “even in the
absence of a showing of prejudice,” a defendant is deprived of the constitutional
right to effective assistance of counsel “when his attorney operates under an
actual conflict of interest.” United States v. Alvarez, 580 F.2d 1251, 1260 (5th
Cir. 1978). “An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of
interest that adversely affects counsel’s performance.”        United States v.
Infante, 404 F.3d 376, 392 (5th Cir. 2005) (quoting Mickens v. Taylor, 535 U.S.
162, 172 n.5 (2003)). “An adverse effect on counsel’s performance may be
shown with evidence that counsel’s judgment was actually fettered by concern
over the effect of certain trial decisions on other clients.” Perillo v. Johnson,
205 F.3d 775, 807 (5th Cir. 2000) (internal quotation marks omitted); see also
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Infante, 404 F.3d at 392-93 (citing cases finding a conflict where attorney was
required to cross-examine his own current or former client). Gutierrez does
not explain how Garcia’s subsequent representation of Martinez adversely
affected the manner in which Garcia represented Gutierrez, given that
Garcia’s representation of Gutierrez had unquestionably terminated by the
time Garcia represented Martinez. Though he summarily states that he “held
nothing back” from Garcia, Gutierrez does not describe the scope of Garcia’s
representation of him, the amount he discussed his case with Garcia, the
extent of the confidential information he disclosed to Garcia, or any actions
that Garcia took on his behalf during the representation. Nor does Gutierrez
explain how any of the information he gave Garcia could have bolstered
Martinez’s plea bargaining position. Moreover, though he speculatively states
that trial counsel was hindered in engaging in possible plea negotiations and
developing possible defense and trial strategies due to Garcia’s conflict,
Gutierrez does not show that Garcia’s alleged conflict of interest actually
adversely affected trial counsel’s representation of him. Accordingly, on these
facts, Gutierrez has not shown a violation of his Sixth Amendment right to the
effective assistance of counsel. 2
       The judgment of the district court is AFFIRMED.




       2  By so holding, we do not approve the actions of attorney Garcia, who represented
different co-conspirators at different points in the same proceeding, or the actions of the
district court, who appointed Garcia to represent different co-conspirators in that proceeding.
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                           No. 11-40331 c/w 11-40846
JAMES L. DENNIS, Circuit Judge, dissenting:
      I respectfully dissent. The issue presented by this petition for habeas
relief is whether the district court=s successive appointments of the same
attorney in the same criminal case, first, to represent the defendant as defense
counsel prior to trial, and, second, to represent a prosecution witness against
the defendant during his trial, violated the defendant=s rights to a fair trial, to
make a defense, and to effective assistance of counsel. The pro se petitioner in
this case, Rudolpho ARudy@ Gutierrez, was convicted by jury of conspiracy to
commit drug-trafficking in violation of 21 U.S.C. '' 841(a)(1) and 846 and
money-laundering in violation of 18 U.S.C. ' 1956(a)(1) and (h), and was
sentenced to concurrent 360- and 240-month terms of imprisonment, to be
followed by two concurrent ten-year terms of supervised release. He was
provided a court-appointed defense attorney, Amador C. Garcia, who
represented him at arraignment and for nearly a month following his
indictment. Gutierrez then hired new defense counsel and Garcia was relieved
of his appointment as Gutierrez=s defense counsel. Later, in the same case, the
court appointed Garcia, Gutierrez=s former defense attorney, to represent
Carlos Domingo Martinez, a cooperating prosecution witness in the same case,
who testified against Gutierrez at trial. No one questioned or objected to the
court=s appointment of Garcia to represent Martinez. Martinez testified at
Gutierrez=s trial that he had been a co-conspirator with Gutierrez in the
charged crimes but that he had pleaded guilty and was testifying against
Gutierrez in the hope of obtaining a lighter sentence for himself.
      I agree with the majority that the district court at least abused its
discretion to the extent that it implicitly denied Gutierrez leave to amend his
' 2255 petition to add this claim. In fact, in my view, the record shows that

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                          No. 11-40331 c/w 11-40846
the district court also ruled against Gutierrez on the merits by holding that he
could not show that he had been prejudiced by Garcia=s successive
appointments and representation of Martinez after having represented
Gutierrez in the same case. Furthermore, because the majority errs in
concluding that Gutierrez must show that he was prejudiced by the district
court=s appointment of Garcia, his former defense attorney, to represent
Gutierrez as a prosecution witness against him in the same case, I respectfully
dissent.
      I would hold that Gutierrez is entitled to collateral relief pursuant to 28
U.S.C. ' 2255, including a reversal of his convictions. The district court=s
appointment of Garcia, Gutierrez=s former defense counsel, as counsel for a
significant prosecution witness at Gutierrez=s trial, making Garcia part of the
prosecution team against his former client, constituted government
interference with Gutierrez=s rights to assistance of counsel and to a fair trial.
APrejudice in these circumstances is so likely that case-by-case inquiry into
prejudice is not worth the cost.@ Strickland v. Washington, 466 U.S. 668, 692
(1984) (citing United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)).
AMoreover, such circumstances involve impairments of the Sixth Amendment
right that are easy to identify and, for that reason and because the prosecution
is directly responsible, easy for the government to prevent.@ Id. That is doubly
true when, as in the present case, the government and the trial court together
cause a lawyer to violate the long well-established common law rule
prohibiting an attorney from switching sides in the same case.
      Historically, from the beginning of our state and federal judicial systems,
courts have categorically prohibited attorneys from switching sides in the same
case because it would A>defeat the very purpose for which . . . [c]ourt[s] [are]

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                              No. 11-40331 c/w 11-40846
organized, namely, the administration of [an adversarial system of] justice.=@ 1
When a client=s opponent A>prevail[s] against him with the aid of an attorney
who formerly represented the client[ ] in the same matter . . . [it] undermine[s]
public confidence in the legal system as a means for adjudicating disputes.=@ 2
For the reasons that follow, I would hold that, in a criminal case, when the
court appoints a former defense counsel in the same case to change sides and
work against his former client, there is a violation of this cardinal rule that
also constitutes a violation of the Fifth and Sixth Amendments, which
guarantee the accused the right to assistance of counsel for his defense, the
right to present a defense, and the right to a fair trial. The court appointment
of a former defense counsel to work with the prosecution against his former
client in the same case so clearly threatens >>the right of the accused to require
the prosecution=s case to survive the crucible of meaningful adversarial
testing,@ and is Aso likely to prejudice the accused, that the cost of litigating
their effect in a particular case is unjustified,@ that prejudice is legally
presumed. Strickland, 466 U.S. at 692 (citing Cronic, 466 U.S. at 659 & n.25).
Accordingly, I would reverse the district court=s judgment and remand with
instructions to grant the petitioner=s motion for habeas relief.




       1 United States v. Bryant, 16 C.M.R. 747, 752 (A.B.R. 1954) (quoting Wilson v. State,
16 Ind. 392, 395 (1861)); accord, e.g., EDWARD P. WEEKS, A TREATISE ON ATTORNEYS AND
COUNSELLORS AT LAW ' 120, at 254-55 (2d ed. 1892). See generally Kenneth L. Penegar, The
Loss of Innocence: A Brief History of Law Firm Disqualification in the Courts, 8 GEO. J. LEGAL
ETHICS 831, 838 (1995).

       2
       In re Am. Airlines, Inc., 972 F.2d 605, 618 (5th Cir. 1992) (quoting Brennan=s Inc. v.
Brennan=s Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979)).

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                          No. 11-40331 c/w 11-40846
                                       I.
      In 2006, Gutierrez was indicted in federal court in the Southern District
of Texas in connection with a drug-trafficking and money-laundering
conspiracy. Along with five alleged co-conspirators, Gutierrez was indicted for
his alleged role in a conspiracy to traffic marijuana and cocaine and to launder
the proceeds using a family trucking business as a cover.        Gutierrez was
assigned a court-appointed attorney, Amador C. Garcia, pursuant to the
Criminal Justice Act (CJA). See 18 U.S.C. ' 3006A.
      Garcia represented Gutierrez for several weeks, including during his
arraignment, entry of a not-guilty plea, and trial preparation. During this
time, Gutierrez avers that he confided in and Aheld nothing back from Mr.
Garcia.@ Later, however, Gutierrez employed new defense counsel and Garcia=s
appointment, but not his continuing duties of loyalty and confidentiality he
owed his former client, was terminated. Only a few months after that, the
district court appointed Garcia, under the CJA plan, to represent Carlos
Domingo Martinez, a prosecution witness against Gutierrez in the same case.
No one objected to the appointment.
      The evidence at trial tended to show that Gutierrez=s brother and other
family members ran a drug-trafficking business dealing in cocaine and
marijuana using a trucking business as a cover. At trial, Martinez, a truck
driver, testified that he had conspired and worked with Gutierrez to transport
loads of marijuana in his truck, that he was arrested while transporting one
such shipment, that he had pleaded guilty, and that he was testifying against
Gutierrez in the hope of obtaining a lighter sentence for his role in the
conspiracy.   In its closing argument, the government crucially relied on
Martinez=s description of a conversation that took place among Martinez,

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                               No. 11-40331 c/w 11-40846
Gutierrez, and Gutierrez=s brother to show that Gutierrez was part of his
brother=s conspiracy to traffic marijuana. Gutierrez was convicted of both the
marijuana-trafficking and money-laundering charges but acquitted of the
cocaine-trafficking charge. Gutierrez appealed his conviction and challenged
the sufficiency of the evidence and raised various evidentiary and
constitutional errors arising from the court=s appointment of Garcia to
undertake adverse duties stemming from his representation of both Gutierrez
and Martinez in the same case. We affirmed Gutierrez=s conviction on direct
appeal, but we declined to reach the ineffective assistance of counsel and other
claims he asserted arising from Garcia=s conflicting duties of representing, in
succession, adverse clients on both sides of the same criminal case. United
States v. Gutierrez, 292 F. App=x 412, 417 (5th Cir. 2008) (citing, inter alia,
Massaro v. United States, 538 U.S. 500, 504 (2003) (A[I]n most cases a motion
brought under ' 2255 is preferable to direct appeal for deciding claims of
ineffective assistance.@)).
       After his conviction, Gutierrez filed a motion for habeas relief pursuant
to 28 U.S.C. ' 2255. In his original ' 2255 motion, and again in later filings,
Gutierrez asserted that Garcia=s appointment to represent the prosecution
witness, Martinez, during Gutierrez=s trial and after Garcia had represented
Gutierrez as defense counsel prior to trial in the same case, violated
Gutierrez=s constitutional rights; and that he was deprived of his right to
effective assistance of counsel when his trial defense counsel failed to object to
Garcia=s prosecution-related appointment and representation of Martinez as a
prosecution witness. 3 The government t has never denied that Garcia was


       3 Gutierrez argued on direct appeal that his trial counsel was ineffective for failing to
object to the court=s appointment of Garcia to represent the prosecution witness Martinez.
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                              No. 11-40331 c/w 11-40846
appointed to represent and actually represented Martinez after representing
Gutierrez in the same case. Instead, the government argued that Gutierrez
was not prejudiced by the district court=s appointment of Garcia to represent
Martinez and by Garcia=s successive representation of the two men.
       The district court agreed and concluded that, because Gutierrez Acannot
establish prejudice,@ he could not succeed on his claim that AGarcia=s successive
representation of Gutierrez and then a government witness at trial, Carlos
Martinez, violated [Gutierrez=s] Sixth Amendment rights.@ Gutierrez timely
appealed the district court=s judgment denying him habeas relief under ' 2255.


                                             II.
       A>A fair trial in a fair tribunal is a basic requirement of due process=@
guaranteed by the Fifth Amendment to the Constitution. Neb. Press Ass=n v.
Stuart, 427 U.S. 539, 551 (1976) (quoting In re Murchison, 349 U.S. 133, 136
(1955)). Further, the Sixth Amendment guarantees that A[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.@         U.S. CONST. amend. VI.           AThis right has been
accorded . . . >because of the effect it has on the ability of the accused to receive
a fair trial.=@ Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting Cronic, 466
U.S. at 658). AThe right to the effective assistance of counsel is thus the right
of the accused to require the prosecution=s case to survive the crucible of
meaningful adversarial testing.@            Cronic, 466 U.S. at 656.            A criminal
defendant=s right to counsel is grounded in both the Sixth Amendment and the


See Gutierrez, 292 F. App=x at 415-17. Gutierrez, acting pro se, urged this point again before
the district court in his ' 2255 motion, but after that motion was denied, he did not seek a
certificate of appealability on that issue.

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                           No. 11-40331 c/w 11-40846
Due Process Clause=s guarantee of the right to a fair trial. See, e.g., id.; Evitts
v. Lucey, 469 U.S. 387, 394 (1985) (A[T]he Sixth Amendment right to counsel
[is] >so fundamental and essential to a fair trial, and so, to due process of law,
that it is made obligatory upon the States by the Fourteenth Amendment.=@
(quoting Gideon v. Wainwright, 372 U.S. 335, 340 (1963))); Powell v. Alabama,
287 U.S. 45, 50-53 (1932) (holding, prior to the incorporation of the Counsel
Clause, that the trial court=s appointment of counsel in a manner that
precluded counsel from providing Aeffective and substantial aid@ violated the
defendants= due process rights).
      Sixth Amendment and related fair trial and due process violations fall
into three categories distinguished by the severity of the deprivation and
whether the defendant is entitled to a full presumption of prejudice or a limited
presumption of prejudice, or whether prejudice must be shown by the
defendant in order to succeed on his claim. See Strickland, 466 U.S. at 692,
693; United States v. O=Neil, 118 F.3d 65, 70 (2d Cir. 1997); BRIAN R. MEANS,
POSTCONVICTION REMEDIES ' 35.3, at 1403 (2013); WAYNE LAFAVE ET AL.,
CRIMINAL PROCEDURE '' 11.7-11.9 (3d ed. 2007 & Supp. 2013).
      In Strickland, the Court first described a Acertain [category of] Sixth
Amendment contexts . . . [in which] prejudice is presumed.@ 466 U.S. at 692.
Falling into this category, A[a]ctual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.@ Id. ASo are
various kinds of state interference with counsel=s assistance.@ Id. at 692 (citing
Cronic, 466 U.S. at 659 & n.25 (in turn citing Geders v. United States, 425 U.S.
80 (1976); Herring v. New York, 422 U.S. 853 (1975); Brooks v. Tennessee, 406
U.S. 605, 612-13 (1972); Hamilton v. Alabama, 368 U.S. 52, 55 (1961); White v.
Maryland, 373 U.S. 59, 60 (1963) (per curiam); Ferguson v. Georgia, 365 U.S.

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                             No. 11-40331 c/w 11-40846
570 (1961); Williams v. Kaiser, 323 U.S. 471, 475-76 (1945))). APrejudice in
these circumstances is so likely that case-by-case inquiry into prejudice is not
worth the cost.@     Id. (citing Cronic, 466 U.S. at 658).          AMoreover, such
circumstances involve impairments of the Sixth Amendment right that are
easy to identify and, for that reason and because the prosecution is directly
responsible, easy for the government to prevent.@         Id.    This category also
includes instances in which the state in the person of the trial judge interferes
with defense counsel=s effective assistance. See, e.g., Walberg v. Israel, 766 F.2d
1071, 1074 (7th Cir. 1985) (Posner, J.) (holding per se prejudice applied where
trial court appointed defense counsel to represent defendant, then, through
his conduct at pretrial proceedings, implicitly indicated that counsel=s future
appointments would be jeopardized if he pressed too hard during trial). AIf the
state is not a passive spectator of an inept defense, but a cause of the inept
defense, the burden of showing prejudice is lifted. It is not right that the state
should be able to say, >sure we impeded your defenseCnow prove it made a
difference.=@ Id. at 1076.
      A second type of ineffective-assistance-of-counsel claim warrants a
Asimilar though limited presumption of prejudice.@ Id. at 692. The Strickland
Court explained:


             In Cuyler v. Sullivan, . . . the Court held that prejudice is
      presumed when counsel is burdened by an actual conflict of
      interest. In those circumstances, counsel breaches the duty of
      loyalty, perhaps the most basic of counsel=s duties. Moreover, it is
      difficult to measure the precise effect on the defense of
      representation corrupted by conflicting interests. Given the
      obligation of counsel to avoid conflicts of interest and the ability of
      trial courts to make early inquiry in certain situations likely to
      give rise to conflicts, it is reasonable for the criminal justice system
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                           No. 11-40331 c/w 11-40846
      to maintain a fairly rigid rule of presumed prejudice for conflicts
      of interest. Even so, the rule is not quite the per se rule of prejudice
      that exists for the Sixth Amendment claims mentioned above.
      Prejudice is presumed only if the defendant demonstrates that
      counsel Aactively represented conflicting interests@ and that Aan
      actual conflict of interest adversely affected his lawyer=s
      performance.@


      Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335,
350 (1980), and citing FED. R. CRIM. P. 44(c)). AAn actual conflict is shown, for
example, where jointly represented codefendants are tried together and the
factual circumstances require counsel to offer evidence which assists one
codefendant but adversely affects others.@ LAFAVE, supra, ' 11.9(d), at 922
(internal quotation marks omitted) (citing, inter alia, Turnquest v.
Wainwright, 651 F.2d 331 (5th Cir. Unit B July 1981) (holding that retained
counsel, who represented two co-defendants, was presented with an actual
conflict of interest where counsel failed to call prospective witness who would
have offered testimony implicating one co-defendant but favorable to the other
co-defendant)).
      Finally, Strickland described the third, most general category, involving
no conflict of interest or presumption of prejudice, in which Aclaims alleging a
deficiency in attorney performance are subject to a general requirement that
the defendant affirmatively prove prejudice.@ 466 U.S. at 693. The Court
explained:


             The government is not responsible for, and hence not able to
      prevent, attorney errors that will result in reversal of a conviction
      or sentence. Attorney errors come in an infinite variety and are as
      likely to be utterly harmless in a particular case as they are to be

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                          No. 11-40331 c/w 11-40846
      prejudicial. They cannot be classified according to likelihood of
      causing prejudice. Nor can they be defined with sufficient
      precision to inform defense attorneys correctly just what conduct
      to avoid. Representation is an art, and an act or omission that is
      unprofessional in one case may be sound or even brilliant in
      another. Even if a defendant shows that particular errors of
      counsel were unreasonable, therefore, the defendant must show
      that they actually had an adverse effect on the defense.


      Id. Claims of this type of ineffective assistance are analyzed under the
most familiar third category of Strickland v. Washington, which requires a
defendant to show (1) that his attorney=s performance fell below an Aobjective
standard of reasonableness,@ and (2) that Athere is a reasonable probability
that, but for counsel=s unprofessional errors, the result of the proceeding would
have been different.@ Id. at 688, 694. AA reasonable probability is a probability
sufficient to undermine confidence in the outcome.@ Id. at 694.
      Applying the foregoing principles, I conclude that, collectively, the
actions of the district court, the prosecution, and Garcia, amounted to
violations of Gutierrez=s Sixth Amendment and fair trial rights that are
presumed to have been prejudicial under Strickland=s first category: viz., (1)
the district court=s appointment of Garcia, Gutierrez=s former defense counsel,
to represent the prosecution witness, Martinez, in the same prosecution
against Gutierrez; (2) the government=s failure to object to the appointment so
as to avoid the potential of taking unfair advantage of Gutierrez through
Garcia=s disclosure of privileged communications and other knowledge gained
from representing Gutierrez; and (3) Garcia=s violation of his duty to remain
loyal to his former client and to guard against any action or betrayal of
confidences and knowledge harmful to Gutierrez in the same case by


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                          No. 11-40331 c/w 11-40846
undertaking the representation of Martinez and thereby becoming a member
of the prosecution team. See Strickland, 466 U.S. at 692 (citing Cronic, 466
U.S. at 658-59). Prejudice in these circumstances is so likely that case-by-case
inquiry into prejudice is not worth the cost. See id. (citing Cronic, 466 U.S. at
659 & n.25 (collecting cases)). For example, in this case, the cost of inquiry
would include interrogation of the entire prosecution team with whom Garcia
served in representing Martinez, the prosecution witness. The actions by the
district court, the government, and Garcia were so likely to interfere with the
right of Gutierrez to subject the prosecution=s case to Athe crucible of
meaningful adversarial testing,@ Cronic, 466 U.S. at 655, that they thereby
violated his rights to a fair trial and effective assistance of counsel. Moreover,
such circumstances involve impairments of Sixth Amendment rights and
rights to a fair trial that are easy to identify and, for that reason and because
the district court and the government are directly responsible, easy for them
to prevent. See Strickland, 466 U.S. at 692.
      The absolute rule that an attorney cannot be allowed to betray his client
by switching sides in the same case has long been established as a fundamental
requirement for our adversarial system of justice. See, e.g., Penegar, supra
note 1, at 838 (A[T]he proper administration of justice would soon cease if
attorneys were permitted, after having received full, frank and free disclosures
from clients, to go [to] the other side[.]@) (alterations and footnotes omitted)
(quoting EDWARD M. THORNTON, A TREATISE ON ATTORNEYS AT LAW ' 177, at
315 (1914)); accord, e.g., Smiley v. Dir., Office of Workers Comp. Programs, 984
F.2d 278, 282 (9th Cir. 1993); GEORGE SHARSWOOD, AN ESSAY ON
PROFESSIONAL ETHICS 117-18 (4th ed. 1876); WEEKS, supra note 1, ' 120, at
254-55 (allowing a attorney to switch sides Awould be to defeat the very purpose

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                               No. 11-40331 c/w 11-40846
for which courts were organized, viz., the administration of justice@). These
principles are Afully applicable on an expanding rather than a contracting basis
today.@ People v. Curry, 272 N.E.2d 669, 673 (Ill. App. Ct. 1971). 4 An attorney=s
continuing duties of loyalty and confidentiality are among Athe oldest and
soundest known to the common law [and] exist[ ] for the purpose of providing
a client with assurances that he may disclose all relevant facts to his attorney
safe from fear that his confidences will return to haunt him.@ United States v.
Green, 18 C.M.R. 234, 237 (C.M.A. 1955).                  Even in civil cases, we have
consistently recognized and enforced this rule. See, e.g., In re Am. Airlines,
Inc., 972 F.2d 605, 618-19 (5th Cir. 1992).
       While we previously have not had occasion to address the problem of a
former criminal defense attorney=s subsequent representation of a cooperating
prosecution witness against his former client in the same case, cf. Penegar,
supra, at 840 (APerhaps because the core or paradigmatic problem of >switching
sides= was so intuitively obvious to . . . judges, advocates, and writers[,] . . .
there was little need for any extended justification for remedies to deal with
it.@), those courts faced with similar situations have concluded without


       4 See, e.g., MODEL RULES OF PROF=L CONDUCT R. 1.9 & cmt. 1 (AAfter termination of a
client-lawyer relationship, a lawyer has certain continuing duties with respect to
confidentiality and conflicts of interest and thus may not represent another client@ if it would
violate either ongoing duty); TEX. DISC. R. PROF=L CONDUCT 1.09 & cmt. 4A (A[R]epresentation
adverse to a former client is prohibited where the representation involved the same or a
substantially related matter. . . . [T]his prohibition prevents a lawyer from switching sides
and representing a party whose interests are adverse to a person who disclosed confidences
to the lawyer while seeking in good faith to retain the lawyer[,] . . . even if the lawyer
withdrew from the representation before the client had disclosed any confidential
information.@). See generally In re ProEduc. Int=l, Inc., 587 F.3d 296, 299 (5th Cir. 2009) (AThe
Fifth Circuit has recognized the ABA Model Rules of Professional Conduct . . . as the national
standards to consider in reviewing motions to disqualify. Therefore, [in cases applying Texas
law] we . . . consider both the Texas Rules and the Model Rules.@) (alteration omitted).

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                           No. 11-40331 c/w 11-40846
difficulty that the attorney=s conduct created a presumption of prejudice
warranting automatic reversal of the defendant=s conviction, see, e.g., Green,
18 C.M.R. at 240 (vacating conviction of defendant and finding prejudice per se
of the defendant=s rights when his attorney represented him during the pretrial
investigation of his case and thereafter prepared a memorandum to the
prosecution file that organized and objectively summarized the evidence
against the defendant, which could then be relied upon by the prosecution);
United States v. Bryant, 16 C.M.R. 747, 751-52 (A.B.R. 1954) (same, former
attorney=s objective sentencing memorandum); Wilson v. State, 16 Ind. 392,
394-96 (1861) (vacating conviction and declining to inquire into prejudice when
former attorney assumed prosecutorial role in same case, explaining that
allowing the conviction to stand would Adefeat the very purpose for which the
Court was organized, namely, the administration of justice@).               These
precedents, which across the board have vacated a defendant=s criminal
conviction obtained after the defendant=s attorney switched sides to aid the
prosecution, form a part of the category of Fifth and Sixth Amendment
violations in which prejudice is presumed, and further inform the
characteristics of that category. See Strickland, 466 U.S. at 692 (discussing
constitutional violations caused by government Ainterference with counsel=s
assistance@ or adversarial testing and involving Aactual or constructive denial
of the assistance of counsel altogether@ and other violations that are Aso likely
[to prejudice the accused] that case-by-case inquiry into prejudice is not worth
the cost@) (citing Cronic, 466 U.S. at 659 & n.25 (collecting cases)).
      Because of the fundamental errors by the district court, the prosecutor
and Garcia himself in failing their duties to safeguard Gutierrez from the
obvious prejudice of having his former attorney in the same case join with the

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                          No. 11-40331 c/w 11-40846
prosecution against him, this case falls within the first category of cases
described in Strickland and Cronic as giving rise to presumed prejudice and
requiring reversal. For that reason, the majority errs by failing to consider
and apply that first category of cases here and by only considering the second
category of cases applying a Alimited@ presumption of prejudice when a
defendant=s trial counsel suffered from an Aactual conflict of interest [that]
adversely affected [the] lawyer=s performance.@ Strickland, 466 U.S. at 692
(citing Cuyler, 446 U.S. at 348-49). The inherent risk to a fair trial that a
defendant suffers when his former defense attorney is appointed by the district
court to switch sides, in the same case, to provide aid to the prosecution=s
efforts to convict the defendant, far overshadows the potential risk to a
defendant whose counsel may have represented co-defendants with competing
interests at trial, cf., e.g., Cuyler, 446 U.S. at 348-49 (describing the second
category of cases), or whose counsel may have committed run-of-the-mill trial
error, cf. Strickland, 466 U.S. at 693 (describing the third category of cases).
Moreover, unlike constitutional errors in the second and third categories of
cases, the constitutional deprivation caused by Garcia himself was
compounded by the fundamental error by the district court in appointing
Garcia to represent Martinez after he represented the defendant in the same
case and by the government in availing itself of Gutierrez=s disadvantage. The
majority fails to acknowledge or distinguish the first category of cases in which
the Supreme Court has instructed that prejudice must be presumed because
prejudice to the defendant Ais so likely that case-by-case inquiry into prejudice
is not worth the cost@ and, because the court and the prosecution were
implicated in the deprivation of the defendant=s constitutional rights, the error
is Aeasy to identify and . . . easy . . . to prevent.@ Strickland, 466 U.S. at 692

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                          No. 11-40331 c/w 11-40846
(citing Cronic, 466 U.S. at 659 & n.25); see Walberg, 766 F.2d at 1075-76
(holding that per se prejudice applied, and that Cuyler=s limited presumption
of prejudice was categorically inapplicable, when Athe state is not a passive
spectator of an inept defense, but a cause of the inept defense@).
      These errors, by their nature, are of the kind described by the first
category of Strickland and therefore must be presumed to have deprived
Gutierrez of his right to a fair trial and to have failed to require the
prosecution=s case to survive the crucible of meaningful adversarial testing.
For these reasons, I conclude     that prejudice to Gutierrez by his defense
attorney=s switching sides in the same case must be presumed, requiring
reversal of the district court=s judgment and a remand with instructions to
grant Gutierrez=s motion for habeas relief. Accordingly, I respectfully dissent.




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