                                                   Filed:   July 2, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 01-6411
                            (CA-99-621-PJM)



Lisa Joyce Rubin,

                                                 Petitioner - Appellee,

          versus


Archie Gee, etc., et al.,

                                              Respondents - Appellants.



                               O R D E R



     The court amends its opinion filed June 5, 2002, as follows:

     On page 19, footnote 1, line 2 -- the word “alibi” is

corrected to read “alias.”

                                           For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
            PUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


LISA JOYCE RUBIN,
      Petitioner-Appellee,

     v.                                No. 01-6411


ARCHIE GEE, Director; J. JOSEPH
CURRAN, JR.,
     Respondents-Appellants.


Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

      (CA-99-621-PJM)

 Argued: October 30, 2001

   Decided: June 5, 2002

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and

Malcolm J. HOWARD, United States District Judge

for the Eastern District of North Carolina,

  sitting by designation.

____________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Howard joined. Judge Motz wrote a dissent-
ing opinion.

____________________________________________________________

                 COUNSEL

ARGUED: Gary Eugene Bair, Assistant Attorney General, Criminal
Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Balti-
more, Maryland, for Appellants. Fred Warren Bennett, BENNETT &
NATHANS, L.L.P., Greenbelt, Maryland, for Appellee. ON BRIEF:
J. Joseph Curran, Jr., Attorney General of Maryland, Criminal
Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Balti-
more, Maryland, for Appellants. Michael E. Lawlor, BENNETT &
NATHANS, L.L.P., Greenbelt, Maryland, for Appellee.

____________________________________________________________

                  OPINION

WILKINSON, Chief Judge:

   Lisa Joyce Rubin, a Maryland prisoner, claims she was denied the
effective assistance of counsel and seeks federal habeas corpus relief.
The district court granted a writ of habeas corpus, concluding that the
state court's decision not to grant Rubin a new trial was an objectively
unreasonable application of clearly established federal law regarding
Rubin's right to conflict-free representation. See Cuyler v. Sullivan,
446 U.S. 335 (1980). Because two of Rubin's attorneys labored under
a conflict of interest that adversely affected Rubin's representation,
and because Rubin was denied the assistance of counsel by these law-
yers' corruption of the attorney-client relationship from the night of
Rubin's crime until the conclusion of Rubin's trial, we affirm the
judgment of the district court.

   The case involved two attorneys who in the aftermath of a crime
schooled their client in the tactics of evasion in order to guarantee
their own fee. Then to avoid criminal indictment and keep their con-
duct from coming to light, the attorneys took cover as part of the
defense team. While the prosecution harped at trial on Rubin's actions
immediately following the crime, the attorneys could not be called as
fact witnesses and their role in directing Rubin's actions was never
explained. To say this had an adverse impact on her trial is self-
evident. To say the actions here tarnished the noble calling of criminal
defense work is an understatement.

             I.

  On November 11, 1990, Lisa Joyce Rubin was convicted of first
degree murder and the use of a handgun in a crime of violence. She

             2
was sentenced to life in prison, with all but 30 years suspended, on
the murder charge and a concurrent sentence of 20 years on the hand-
gun charge. There is no question that Rubin shot and killed her hus-
band, Timothy Warner. However, Rubin, the only defense witness
called at trial, claimed she was acting in self-defense.

   A series of events ultimately led to the homicide. During her mar-
riage to Warner, Rubin had an affair with William Glisson. Rubin and
Warner ended up bringing a civil suit against Glisson because Glisson
assaulted Rubin during the affair. In the course of the civil trial, Glis-
son was poisoned when he drank out of a soda bottle containing cya-
nide.

   After the civil proceeding against Glisson, Rubin and Warner sepa-
rated. Rubin subsequently hired private investigators, Robert Miller
and Robert Leopold, to determine whether Warner was having an
affair. In April 1990, Rubin told Miller that Warner confessed to her
that he had poisoned Glisson. Rubin claimed she was afraid of War-
ner and wanted to tell the police what she knew about the attempt on
Glisson's life. Miller referred Rubin to Darrel Longest, an attorney,
so that Longest could arrange for Rubin to meet with the police. On
April 20, 1990, after Longest secured immunity for Rubin, Rubin and
Longest met with a police officer to tell him about Warner's confes-
sion.

   Four days later, on April 24, 1990, Rubin met Warner at a veteri-
nary clinic to have their dog put to sleep. During a walk with Warner
in the woods behind the clinic, Rubin told Warner that she had gone
to the authorities about his confession. According to Rubin, Warner
was enraged and pulled out what she believed to be a gun. Rubin then
took a handgun out of her purse and shot Warner eight times.

   After the shooting, Rubin proceeded back into the veterinary clinic
and called Miller in an attempt to reach her attorney, Longest. Fol-
lowing Miller's instructions, Rubin met him and the other private
investigator, Leopold, at a neutral location. The three of them then
returned to the scene of the crime. Miller called Longest and his law
partner, David Gavin, who both came to the crime scene. At that time,
it became clear that Rubin had taken a lot of medication. So Longest
told Miller and Leopold to take her to the hospital for a possible drug

             3
overdose. However, Longest went one step further. In an apparent
effort to have Rubin evade detection, Longest instructed Miller and
Leopold to have Rubin admitted to the hospital under a false name.
The attorney's instructions were meticulously executed.

   While Rubin was in the hospital, Longest notified the police that
Warner was dead. However, he never disclosed Rubin's identity or
whereabouts. With Rubin still at large, Longest and Gavin were able
to direct her actions in order to ensure themselves ample compensa-
tion. The day after the shooting, attorney Gavin drove Rubin to the
bank so she could withdraw the sum of $105,000 to cover Longest
and Gavin's retainer fee and expenses. Meanwhile, attorney Longest
took possession of the evidence in the case. Longest took Rubin's
jacket, her purse, some .22 caliber bullets, and a .38 caliber handgun
and kept them at his law offices. Finally — only after the attorneys
discovered that a warrant was out for Rubin's arrest — Longest and
Gavin turned Rubin in to the police at 7:00 p.m. on April 25th.

   Longest and Gavin continued to advise Rubin after the homicide.
They recommended to Rubin who should serve as her trial counsel.
They persuaded her to hire Barry Helfand, who in turn brought in
Alan Goldstein and Fred Joseph. And remarkably, considering the
post-shooting events, Longest and Gavin remained part of the defense
team even after Helfand, Goldstein, and Joseph were brought into the
case. Longest and Gavin continued to collect a fee from Rubin, even
though they did not sit at counsel table during her trial.

   Except for the fact that Rubin went to the hospital, none of the facts
regarding the events following the homicide were brought out during
Rubin's direct examination. And Longest and Gavin were not called
to testify about their roles in directing Rubin's actions in the immedi-
ate aftermath of the shooting. However, the State brought out the
events from the twenty-four hours following the homicide during
Rubin's cross-examination, without any mention of Longest and
Gavin's activities. The State used the facts to refute Rubin's self-
defense claim by arguing that she had fled the scene of the crime, lied
about her identity, and showed consciousness of guilt.

   Following her conviction, the Maryland Court of Appeals granted
certiorari and affirmed Rubin's conviction. See Rubin v. State, 602

             4
A.2d 677 (Md. 1992). On September 29, 1995, Rubin filed a petition
for post-conviction relief in the Circuit Court for Montgomery
County. Following an evidentiary hearing, the post-conviction court
granted Rubin's petition for a new trial, finding a conflict of interest
between Rubin and defense attorneys Longest and Gavin that violated
Rubin's Sixth Amendment right to counsel.

   On appeal by the State of Maryland, the Court of Special Appeals
reversed in an unreported decision. The Court of Special Appeals did
not dispute the post-conviction court's factual findings regarding Lon-
gest and Gavin's actions after the homicide. And the court found that
Longest and Gavin "served as counsel on behalf of Mrs. Rubin" up
to and throughout her trial. However, the state court found that after
the events following the homicide, Longest and Gavin's contribution
to the defense team "consisted of what is most accurately described
as `paralegal/investigative' work . . . and `client relations' that had
nothing to do with trial strategy." Therefore, the Court of Special
Appeals held that because Longest and Gavin did not control the deci-
sion of whether to offer their testimony at trial, and because it was a
reasonable decision by Rubin's trial counsel not to call them, Longest
and Gavin's "failure or refusal" to testify did not constitute ineffective
assistance of counsel. The Maryland Court of Appeals denied Rubin's
application for certiorari. See Rubin v. State, 719 A.2d 1262 (Md.
1998).

   Having exhausted her state remedies, Rubin filed a petition for
habeas corpus relief in the district court. On February 7, 2001, the dis-
trict court granted Rubin's petition, finding that the Maryland Court
of Special Appeals unreasonably applied the clearly established
Supreme Court precedent of Cuyler v. Sullivan, 446 U.S. 335 (1980).
The district court held that it was objectively unreasonable for the
state court to conclude that Rubin was not denied the effective assis-
tance of counsel by Longest and Gavin's conflict of interest during
the pretrial and trial phases of Rubin's case. See Rubin v. Gee, 128
F. Supp. 2d 848, 865-69 (D. Md. 2001). The court stressed that it was
unreasonable for the state court to conclude that "counsel as deeply
conflicted as Longest and Gavin were could remain active in [her]
case." Rubin, 128 F. Supp. 2d at 869.

   Alternatively, the district court concluded that the state court's
finding that Longest and Gavin played only a "paralegal/investigative

             5
role" on Rubin's defense team was an unreasonable determination of
the facts in light of the evidence presented in the state court, constitut-
ing another basis for granting Rubin habeas relief. The court noted
that the evidence included a detailed letter from Longest and Gavin
to the Maryland Attorney Grievance Commission explaining that
"Longest and Gavin served Rubin in a `multitude of ways . . . even
during the trial.'" Id. at 856-58, 869-70. The district court concluded
that the state court's "minimization of counsel's role was clearly and
convincingly unreasonable in light of this evidence." Id. at 870. Mary-
land now appeals.

             II.

             A.

   Rubin filed her petition for a writ of habeas corpus after the effec-
tive date of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), so we apply 28 U.S.C. § 2254 as amended by the
AEDPA. Rubin's claims were adjudicated on the merits in state court.
Therefore, in order for federal habeas relief to be granted, the state
court's decision must be "contrary to, or involve [ ] an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).1

   The Supreme Court addressed the meaning of § 2254(d)(1) in Wil-
liams v. Taylor, 529 U.S. 362 (2000). The Court explained several
ways in which a state court decision can be "contrary to" or an "un-
reasonable application of" clearly established federal law. See Wil-
liams, 529 U.S. at 405-07. Only one of the Court's explanations is
relevant in this case: A state court decision is an unreasonable appli-
____________________________________________________________
  1
     Pursuant to § 2254, a writ of habeas corpus may also be granted if the
state court's decision "was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(2). The district court relied on this provision as an
alternative basis for granting habeas relief to Rubin. See Rubin, 128 F.
Supp. 2d at 869-70. Because we conclude that the state court's decision
was an unreasonable application of federal law under § 2254(d)(1), this
ends our inquiry. There is no need to call the state court's factual find-
ings into question.

             6
cation of clearly established federal law "if the state court identifies
the correct governing legal rule from [the] Court's cases but unrea-
sonably applies it to the facts of the particular state prisoner's case."
Id. at 407. "Stated simply, a federal habeas court making the `unrea-
sonable application' inquiry should ask whether the state court's
application of clearly established federal law was objectively unrea-
sonable." Id. at 409.

   The Court has stressed that "an unreasonable application of federal
law is different from an incorrect application of federal law." Id. at
410. A federal court may not grant habeas relief "simply because [the]
court concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law erroneously or
incorrectly." Id. at 411; see also Bell v. Jarvis, 236 F.3d 149, 160-63
(4th Cir. 2000) (en banc). We must determine here whether the state
court's legal conclusion that Rubin received effective assistance of
counsel was an objectively unreasonable application of clearly estab-
lished federal law to the facts of Rubin's case. See Sullivan, 446 U.S.
at 341-42 (conflict of interest determination is a mixed question of
law and fact, requiring the "application of legal principles to the his-
torical facts").

             B.

   It is clearly established federal law that the Sixth Amendment
"right to counsel is the right to the effective assistance of counsel."
Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quota-
tions omitted). Further, it is clearly established that the right to effec-
tive assistance includes the right to representation free from conflicts
of interest. Sullivan, 446 U.S. at 348-50; see also Wood v. Georgia,
450 U.S. 261, 271 (1981); Holloway v. Arkansas, 435 U.S. 475, 489-
90 (1978); Glasser v. United States, 315 U.S. 60, 70, 76 (1942). Law-
yers owe their clients a duty of loyalty, including the duty to avoid
conflicts of interest. And the Supreme Court has emphasized that the
duty of loyalty is "perhaps the most basic of counsel's duties." Strick-
land, 466 U.S. at 692.

   In order to establish ineffective assistance of counsel in a conflict
of interest situation, a defendant who did not raise an objection at trial
"must demonstrate that an actual conflict of interest adversely

             7
affected his lawyer's performance." Sullivan, 446 U.S. at 348.
Adverse effect cannot be presumed from the mere existence of a con-
flict of interest. See Mickens v. Taylor, No. 00-9285, 2002 WL
459251, at *5-6 (U.S. Mar. 27, 2002). The Supreme Court has
explained that Sullivan does not require "inquiry into actual conflict
as something separate and apart from adverse effect." Id. at *5 n.5.
Rather, "[a]n `actual conflict,' for Sixth Amendment purposes, is a
conflict of interest that adversely affects counsel's performance." Id.

   However, if a defendant shows that a conflict of interest existed
and that it adversely affected counsel's performance, prejudice will be
presumed and the defendant need not demonstrate a reasonable proba-
bility that, but for the attorney's conflict of interest, the trial's out-
come would have been different. Sullivan, 446 U.S. at 349-50; see
also Mickens, 2002 WL 459251, at *6; Glasser, 315 U.S. at 76. This
presumption of prejudice arises because "it is difficult to measure the
precise effect on the defense" when representation is "corrupted by
conflicting interests." Strickland, 466 U.S. at 692; see also Holloway,
435 U.S. at 490-91. When lawyers' conflicts of interest adversely
affect their performance, it calls into question the reliability of the
proceeding and represents a breakdown in the adversarial process fun-
damental to our system of justice.

            III.

   In Rubin's case, the Maryland Court of Special Appeals identified
Cuyler v. Sullivan as the clearly established federal law governing
Rubin's claim of ineffective assistance of counsel due to a conflict of
interest. The state court also recognized that a conflict of interest can
exist between a client and her attorneys' own personal interests and
that both pretrial and trial representation can be ineffective. See, e.g.,
United States v. Magini, 973 F.2d 261, 263-64 (4th Cir. 1992); United
States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991).2 However, the
____________________________________________________________
  2
    While the Supreme Court has expressed doubt about whether Sullivan
applies to every potential conflict of interest, see Mickens, 2002 WL
459251, at *7, the Court has never indicated that Sullivan would not
apply to a conflict as severe as the one presented here. Therefore, we
conclude that the state court correctly utilized the Sullivan framework
when analyzing Rubin's ineffective assistance of counsel claim.

             8
court did not conclude that Longest and Gavin's actions following the
homicide created an actual conflict of interest that deprived Rubin of
effective assistance. And the court did not consider the continuing
effects of Longest and Gavin's conflict when evaluating the effective-
ness of Rubin's trial representation.

   This was an "objectively unreasonable" application of clearly
established federal law because Longest and Gavin plainly had a con-
flict of interest that adversely affected their own performance and the
performance of Rubin's trial counsel. Therefore, under Sullivan,
Rubin was denied the effective assistance of counsel by Longest and
Gavin's actual conflict of interest. Indeed, statutory terms of art fail
to fully capture the appalling nature of the attorneys' misconduct here
and the effect it had on Rubin's subsequent trial. What transpired
requires us to take the rare and extraordinary step of granting Rubin
the writ of habeas corpus under the rigorous standards of § 2254.

            A.

   Longest and Gavin's personal interests fundamentally conflicted
with the objectives of Rubin's representation from the moment they
arrived at the scene of the crime until the completion of her trial. The
state post-conviction court made numerous factual findings regarding
Longest and Gavin's actions on the night of the homicide that gave
rise to their conflict of interest. And, as the district court correctly
emphasized, the Court of Special Appeals "left wholly intact" these
findings of the post-conviction court. Rubin, 128 F. Supp. 2d at 865.
In fact, the state court did not focus on or dispute the fact that Longest
and Gavin had a conflict of interest. And nothing in the record sug-
gests that Rubin waived or even understood the conflict of interest
that Longest and Gavin's representation had created. See Rubin, 128
F. Supp. 2d at 866-67.

   The Court of Special Appeals found that after arriving at the scene
of the crime, "Longest told Miller and Leopold to take [Rubin] to a
hospital for a possible drug overdose and have her admitted under a
false name." The private investigators carefully followed Longest's
instructions. Rubin left the crime scene and Miller and Leopold regis-
tered her under the alias of "Sharon Peterson" at the hospital. Then,
"Longest notified the police that Warner was dead, but did not dis-

             9
close [Rubin's] identity" and did not even notify the police that he
and Gavin represented Rubin.

   In addition, Longest and Gavin removed evidence from the crime
scene. The state court found that "Longest took possession" of
Rubin's property, including her "jacket, a purse,.22 caliber bullets
and a .38 caliber Smith and Wesson handgun." Longest and Gavin
kept these items at their own law offices. On the day following the
homicide, Longest and Gavin failed to present Rubin to the police.
Instead, concerned solely with their own financial gain, "Gavin drove
[Rubin] to her bank to withdraw $105,000 to be used as [Longest and
Gavin's] retainer fee and to cover [their] expenses." Finally, only
after they discovered that a warrant was out for Rubin's arrest, Lon-
gest and Gavin turned Rubin in to the police almost twenty-four hours
after they had arrived on the scene of the crime.

   It can hardly be disputed that Longest and Gavin's conduct created
a conflict of interest. Rubin's lawyers utterly failed to function as
Rubin's advocates. Instead, they schooled Rubin, Miller, and Leopold
in evasive action and functioned almost as accessories after the fact.
The lawyers' desire to secure a $105,000 retainer fee "caused them
to counsel Rubin to act in an unnecessarily suspicious fashion when
they caused her to delay her surrender to the police for 24 hours."
Rubin, 128 F. Supp. 2d at 865-66. Her attorneys' pretrial conduct cre-
ated serious problems for Rubin at trial. Rubin's lawyers had
instructed her to take the precise actions that were subsequently used
by the prosecution at trial to establish her premeditation and con-
sciousness of guilt. For example, the prosecutor seized on Rubin's
conduct during closing argument, saying, inter alia: "Does she flee
from this scene? You bet. Does she lie? You bet." Rubin, 128 F.
Supp. 2d at 852.

   Rubin thus had a strong interest in having Longest and Gavin help
the jury understand that she acted on the advice of her own lawyers
following the homicide. The very attorneys who were supposed to
function in a representative capacity had become critical fact wit-
nesses regarding the crime scene and Rubin's conduct. Testimony
from either of the attorneys at trial might have helped explain Rubin's
behavior to the jury.

            10
   Testimony, however, was apparently the last thing Longest and
Gavin had in mind. They had a powerful conflicting interest in shield-
ing themselves from testifying to conceal their role in the events fol-
lowing the homicide. Longest and Gavin did not — indeed could not
— fulfill their obligations to vigorously protect their client's interests.

    The state post-conviction court made undisputed findings that Lon-
gest and Gavin's actions had exposed them to potential criminal
charges for obstruction of justice and hindering the apprehension of
a criminal defendant. In fact, Longest and Gavin were the subject of
a grand jury investigation that began before Rubin's trial and contin-
ued until after it was complete. Longest even had to engage his own
attorney to represent him in this investigation. See Rubin, 128 F.
Supp. 2d at 859-61, 865 (recounting Longest's post-conviction testi-
mony and his attorney's testimony regarding the criminal investiga-
tion of Longest and Gavin). Furthermore, Longest and Gavin were
also the targets of an inquiry by the Maryland Attorney Grievance
Commission during which they had to justify the $150,000 fee they
eventually collected for representing Rubin. See id. at 856-58
(recounting details from the post-conviction hearing involving Lon-
gest and Gavin's letter to the grievance commission justifying their
fee). The Court of Special Appeals did not dispute these facts. And,
in its reply brief, the State acknowledged the investigations of Lon-
gest and Gavin and conceded that Longest and Gavin's activities on
the night of the homicide and the next day "were fraught with both
ethical and criminal overtones." At all times, the attorneys' fidelity to
their own interests superseded any sense of obligation they may have
had to their client.

             B.

   Instead of disputing that Longest and Gavin had a conflict of inter-
est, the Court of Special Appeals concluded that any conflict Longest
and Gavin had did not adversely affect Rubin's representation
because Longest and Gavin advised Rubin to retain three independent
attorneys to represent her at trial. In order to show an adverse effect
from an attorney's conflict of interest, the defendant must establish by
a preponderance of the evidence that a plausible alternative defense
strategy existed "that [her] defense counsel might have pursued," that
this "alternative strategy or tactic was objectively reasonable under

            11
the facts of the case known to the attorney at the time of the attorney's
tactical decision," and that "the defense counsel's failure to pursue
that strategy or tactic was linked to the actual conflict." Mickens v.
Taylor, 240 F.3d 348, 361 (4th Cir. 2001) (en banc), aff'd, 2002 WL
459251.

   In its decision, the state court found that Longest and Gavin did not
control Rubin's trial strategy and held "as a matter of law that, unless
counsel could have prevented the happening of the [allegedly] defi-
cient act, he or she cannot have rendered ineffective assistance." The
court concluded that because Longest and Gavin did not have the
right to insist on testifying, "their failure or refusal to do so did not
constitute ineffective assistance of counsel." This was an objectively
unreasonable application of Sullivan because Longest and Gavin's
conflict of interest adversely affected Rubin's representation in at
least two ways.

             1.

   First, Longest and Gavin's direct representation of Rubin was
adversely affected by their conflict of interest. While the state court
found that Longest and Gavin "were not responsible for deciding
upon or for carrying out Mrs. Rubin's trial strategy," it also found that
Longest and Gavin continued to serve "as counsel on behalf of Mrs.
Rubin" from the night of the homicide until the end of her trial. They
participated on her defense team. In the letter they sent to the Mary-
land Attorney Grievance Commission, Longest and Gavin indicated
that they spent "by far" the most time with Rubin in the events lead-
ing up to her trial. Rubin, 128 F. Supp. 2d at 856. And at the end of
the day, Longest and Gavin collected $150,000 for their representa-
tion of Rubin while Helfand, Goldstein, and Joseph collected only
$100,000. Id. at 866.

   Longest and Gavin's continued participation on Rubin's case, even
after Helfand, Goldstein, and Joseph were brought in to serve as trial
counsel, allowed them to wrap themselves in the attorney-client privi-
lege and assure that they would not be asked to testify at trial. The
defense team called Rubin to the stand as their sole witness, but never
mentioned the role her attorneys played in directing her behavior fol-
lowing the homicide. This "virtually sealed off access to any testi-

            12
mony from [Longest and Gavin]" regarding their role. Rubin, 128 F.
Supp. 2d at 866. It allowed the prosecution to cross-examine Rubin
about her conduct. And the State used those facts to establish Rubin's
premeditation and her consciousness of guilt.

   The only issues at Rubin's trial were premeditation and delibera-
tion, not whether Rubin committed the homicide. The actions Longest
and Gavin instructed Rubin to take made the shooting "look more pre-
meditated and more deliberate." Rubin, 128 F. Supp. 2d at 869. Yet
Longest and Gavin never considered "remov[ing] themselves from
the case altogether so that they might become witnesses on her behalf.
They never thought to draw the State's attention to their own actions
regarding the handling of evidence at the crime scene or in causing
the 24 hour delay in Rubin's surrender." Id.

   The Supreme Court has observed that a conflict of interest has det-
rimental effects on representation "because of what it tends to prevent
the attorney from doing." Holloway, 435 U.S. at 489-90. An adverse
effect can be shown from an attorney's "failure to take actions that are
clearly suggested from the circumstances." Tatum, 943 F.2d at 376.
Here, the circumstances suggested that Rubin might have been helped
by Longest and Gavin testifying. Rubin has shown that this was a
plausible alternative defense strategy which was reasonable under the
facts of the case and that the failure to pursue this strategy was linked
to Longest and Gavin's conflict of interest. We agree with the district
court that "[b]y failing to draw the spotlight on their own actions,
whether for financial reasons (to remain in the case and gain a sub-
stantial fee) or out of fear for their own criminal liability, [Longest
and Gavin] lapsed in their duty of representation." Rubin, 128 F.
Supp. 2d at 869.

            2.

   Second, Longest and Gavin's conflict of interest ultimately tainted
and adversely affected Rubin's representation by her three trial attor-
neys. Longest and Gavin violated the most basic principles of the
attorney-client compact from the beginning to the end of Rubin's rep-
resentation. The taint from their conflict of interest could not be
cleansed simply by bringing in independent counsel to make trial
decisions while Longest and Gavin continued to function as members

            13
of the defense team. The Court of Special Appeals' conclusion that
attorneys as conflicted as Longest and Gavin could somehow remain
active in Rubin's case as long as they did not control trial strategy
was an objectively unreasonable application of the Sullivan standard.

   We do not call into question the state court's factual finding that
Rubin's trial lawyers made the decision to not call Longest and Gavin
as witnesses. However, the alternative decision was effectively
unavailable to them. To discharge Longest and Gavin from the
defense team and call them as witnesses, Helfand, Goldstein, and
Joseph would have had to oust fellow members of the bar who had
been the ones to recommend their services in the first place. They
could hardly consider the benefits of calling Longest and Gavin as
fact witnesses while Longest and Gavin were still functioning as
Rubin's attorneys. This adversely affected Rubin's representation.

   This court, applying Sullivan, has previously held that a conflicted
attorney can taint trial counsel and render trial counsel's performance
ineffective. In Tatum — a case that amazingly involved the very same
David Gavin whose conduct is at issue in this case — this court con-
cluded that bringing in independent trial counsel does not necessarily
cleanse a serious conflict of interest if the conflicted attorney contin-
ues as a member of the defense team. Tatum, 943 F.2d at 378-79.3

   "The present case replays Tatum almost exactly." Rubin, 128 F.
Supp. 2d at 869. Tatum suggests that it is almost Longest and Gavin's
modus operandi to represent people in a questionable capacity pretrial
and then remain as a shadow team at trial after bringing trial counsel
"up to speed." See Rubin, 128 F. Supp. 2d at 868. As in Rubin's case,
Gavin was a potential fact witness for Tatum because Gavin's firm
had apparently advised Tatum to do what he was being prosecuted
for. Tatum, 943 F.2d at 373-74, 376-77. Instead of withdrawing from
the case, Gavin continued to represent Tatum, thus attempting to
deflect attention from his own actions and his firm's behavior. Id. at
377, 379. The State argued, just as it does in Rubin's case, that there
was no ineffective assistance of counsel because Gavin did not repre-
sent Tatum at trial. Id. at 377-78. This court rejected that argument,
____________________________________________________________
   3
     Of course, in keeping with the requirements of Bell v. Jarvis, 236
F.3d at 162, the case on which this court has plainly relied is Cuyler v.
Sullivan. The use of Tatum is purely illustrative.

            14
finding that it would never occur to Tatum's trial counsel to call
Gavin as a witness with Gavin continuing to serve as co-counsel.
Even though Gavin and Tatum's trial counsel made contributions to
Tatum's defense that "varied in function and degree," the "joint effort
by the two, when one was so completely disqualified, caused an
unwitting, but disqualifying, taint to the other." Id. at 378. Just as in
Tatum, Rubin's trial counsel's performance was tainted by the fact
that Longest and Gavin continued to participate as members of the
defense team.

             C.

   The adverse effect Longest and Gavin's conflict of interest had on
their own representation of Rubin and the taint the conflict had on
Rubin's trial counsel establishes ineffective assistance of counsel
under Sullivan. The State argues that Helfand, Goldstein, and
Joseph's strategic decision to not call Longest and Gavin to the stand
was reasonable and did not prejudice Rubin. The State asserts that
Longest and Gavin's testimony might actually have harmed Rubin's
defense by, inter alia, allowing the prosecution to delve into the
attempted poisoning of Rubin's former lover, Glisson, and into the
fact that Rubin had sought immunity in association with that poison-
ing.

    These arguments are unavailing. With the conflict of interest estab-
lished and the adverse effect on her representation shown, Rubin has
carried her burden under Sullivan. 446 U.S. at 349-50. Longest and
Gavin's representation of Rubin was more than ineffective — it was
a perversion of the attorney-client relationship. Longest and Gavin's
conflict of interest was so severe that it led to a corruption of the
adversarial process that our system relies on to produce just results.
It is hard to imagine a case that would call the fundamental fairness
of a trial into more question than this one. What happened here should
never happen in our system. Rubin is entitled to a new trial with
conflict-free representation.

             IV.

   For the foregoing reasons, we affirm the judgment of the district
court and grant Rubin's petition for a writ of habeas corpus on the
same terms ordered by the district court.

            AFFIRMED

             15
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

   Today this court grants a writ of habeas corpus to Lisa Joyce
Rubin, who, it concedes, unquestionably "shot and killed her hus-
band," and whom a Maryland jury convicted of first-degree murder.
The court grants habeas relief to Rubin (an honors college graduate)
on the theory that she received ineffective assistance of counsel at her
trial. Yet for six months prior to that trial, a team of three lawyers spe-
cializing in criminal law planned her defense and formulated trial
strategy; this team represented Rubin at trial, examining witnesses,
making objections, and asserting legal arguments on her behalf. The
majority does not fault the skill or ethics of these three lawyers,
whom the state court described as "highly qualified and experienced
criminal defense counsel." Rather, the majority grants habeas relief
because of a conflict of interest of two other attorneys, who advised
Rubin in the hours and days immediately after she killed her husband.
Although the two conflicted lawyers continued to meet with Rubin,
they did not try her case, direct trial strategy, sit at counsel table, or
even enter an appearance on her behalf in the trial court. The Supreme
Court has never established — let alone clearly established — that a
conflict of interest violates the Sixth Amendment under these circum-
stances.

   This is not to say that the two conflicted lawyers — David Gavin
and Darryl Longest — acted properly. They did not. Driven by their
own financial interests rather than their client's interests, they cer-
tainly violated the ethical codes that govern all lawyers, and they may
have committed crimes. I join in the majority's reprobation of their
conduct. Indeed, were I left to my own devices to determine when a
conflict of interest yields constitutionally ineffective assistance of
counsel, I might endorse the conclusion that the existence of case-
related contact between the conflicted and the unconflicted lawyers
tainted the latter. But we are not free to do that. Instead, we must
apply controlling law, including the deferential standard of review in
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
28 U.S.C.A. § 2254(d)(1) (West Supp. 2001), which requires us to
deny habeas relief unless we find a state court's decision is "contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court." In this case, I can-

            16
not so find. Accordingly, I must respectfully dissent from the majori-
ty's contrary holding.

             I.

   The sole Supreme Court case cited as "the clearly established Fed-
eral law" authorizing habeas relief here is Cuyler v. Sullivan, 446 U.S.
335 (1980). See ante at 8-9 and 14 n.3. That case dealt with a conflict
of interest involving dual representation — the same two attorneys
represented three co-defendants, with conflicting interests, at three
separate criminal trials. Id. at 337-40, 345-49. Sullivan provides no
direct support for a finding of unconstitutional conflict of interest on
the very different facts at issue here. Indeed, to the extent Sullivan has
any specific relevance to this case, it suggests no conflict exists here.
See infra n.5. Under circuit precedent, however, Sullivan does estab-
lish the relevant standard for assessing conflict of interest claims like
the one at issue here. See United States v. Tatum, 943 F.2d 370, 375-
76 (4th Cir. 1991); but see Beets v. Scott, 65 F.3d 1258, 1272 (5th Cir.
1995) (en banc) (holding that the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), rather than Sullivan's "more rigid
rule," applies to "attorney breaches of loyalty outside the multiple [or
successive] representation context"). Sullivan requires that "a defen-
dant who raised no objection at trial [like Rubin] must demonstrate
that [1] an actual conflict [2] adversely affected his lawyer's perfor-
mance." 446 U.S. at 348. The majority iterates and reiterates Gavin
and Longest's actual conflict, but offers only two reasons why this
conflict "adversely affected Rubin's representation." Ante at 12. Nei-
ther is at all persuasive.

            A.

   First, the majority contends that "Longest and Gavin's direct repre-
sentation of Rubin was adversely affected by their conflict of inter-
est." Id. (emphasis added). Specifically, the majority agrees with the
district court that Longest and Gavin should have testified at Rubin's
trial to "draw the spotlight on their own actions." Rubin v. Gee, 128
F. Supp. 2d 848, 869 (D. Md. 2001).

   To demonstrate "adverse effect," however, a defendant must not
only "identify a plausible alternative defense strategy his defense

            17
counsel might have pursued," but also must: (i) show that this strategy
was "objectively reasonable," i.e., "clearly suggested by the circum-
stances," "under the facts of the case known to the attorney at the time
of the attorney's tactical decision," and (ii) establish a link between
the conflict and the failure to pursue the strategy. Mickens v. Taylor,
240 F.3d 348, 361 (4th Cir. 2001) (en banc) (citation omitted), aff'd,
___ U.S. ___, 122 S. Ct. 1237 (2002). The majority utterly fails to
demonstrate that the proffered alternative defense strategy — calling
Longest and Gavin to testify — was "objectively reasonable" or not
"pursue[d]" because of Longest and Gavin's conflict. Id. Thus, even
if we were free to ignore the stringent standard of review mandated
by AEDPA and to ask simply whether the decision not to call Longest
and Gavin had an adverse effect on Rubin's representation, Rubin
could not prevail on this claim. Taking account of the limitation
AEDPA places on our review, there is no way to conclude that the
state court's contrary determination was unreasonable.

   Testimony from Longest and Gavin simply would not have helped
Rubin and, therefore, offering this testimony at trial would not have
been "objectively reasonable." Id. At the state post-conviction hear-
ing, Rubin's two surviving trial lawyers (one had died before the post-
conviction proceeding occurred) recounted their struggles to formu-
late a defense theory around Rubin's shifting and incomplete account
of the night she shot her husband. They explained, at length, the mul-
tiple problems with introducing testimony by Longest and Gavin, as
well as the incompatibility between such testimony and their trial
strategy. Their explanation establishes beyond doubt that calling Lon-
gest and Gavin, though superficially plausible, was not an "objec-
tively reasonable" strategy that was "clearly suggested by the
circumstances." Id. (citation omitted).

   First, testimony from Longest and Gavin, who knew a great deal
about Rubin's activities and statements after the killing and at other
times, would have opened the door to much damaging evidence. After
Rubin shot her husband, she first telephoned Robert Miller, a private
detective with whom she had a "personal relationship" including late
night dinners, assistance in finding a new home, and personal confi-
dences. See Rubin v. State, 602 A.2d 677, 679 (Md. 1992); Rubin v.
Gee, 128 F. Supp. 2d at 852 (quoting closing argument). Miller
arrived at the scene with his assistant, another private detective named

            18
Robert Leopold, viewed the body, and telephoned Longest. Not until
an hour after the detectives' arrival did Longest and Gavin arrive at
the scene.

   If Longest and Gavin had testified, the jury would have heard that
right after Rubin repeatedly shot her husband, reloaded, fired five
additional bullets into his back as he lay face down, and reloaded
again — all supposedly in a frenzy of terror — she developed the
presence of mind to stay in the vicinity for an extended period to con-
sult at length with her private detectives and lawyers. The jury would
have heard details including the three hours Rubin spent at the scene
without calling an ambulance. With this fodder, the prosecutor could
have extensively elaborated on his brief comments on the point that
the first person Rubin called was not a lawyer but Robert Miller, her
intimate.1 We can ascertain this much even from the minimal infor-
mation that Longest and Gavin have disclosed to date. See Rubin v.
State, 602 A.2d at 682-84; Answer to Petition for Habeas Corpus, Ex.
2 at 96 et seq. (containing the scant post-conviction testimony by
Longest concerning the events of the night of the killing and no testi-
mony by Gavin).

   In addition, a substantial portion of the night's activities has never
emerged, because Rubin did successfully assert the privilege with
respect to Longest and Gavin, and with respect to her communica-
tions with Miller and Leopold after Longest and Gavin arrived at the
scene of the shooting. We cannot know what other damaging state-
ments or observations, made after the privilege arose, Longest and
Gavin (and Miller, Rubin's intimate) would have had to relate, if
Rubin had waived the privilege. We do know that without sacrificing
the privilege as defined by the trial court,2 or otherwise harming Lon-
____________________________________________________________
  1
    The state courts never fully resolved the question whether Longest or
Miller gave the instruction to use an alias in checking Rubin into the hos-
pital. Direction by Miller, Rubin's intimate who was not a lawyer, see
Rubin v. State, 602 A.2d at 679, would obviously not have resonated to
her benefit.
  2
    Over defense objections, the trial court ruled that the attorney-client
privilege arose not when Rubin's private detectives, Miller and Leopold,
arrived at the crime scene, but only later, when her attorneys, Longest
and Gavin, arrived. See Rubin v. State, 602 A.2d at 683-84 (describing
and affirming this ruling).

            19
gest or Gavin's interests in the slightest, the defense could have called
Rubin's private detective (and good friend), Miller, to describe his
several lengthy one-on-one conversations with Rubin at the scene
before Longest and Gavin arrived. See Answer to Petition, Ex. 2 at
173, Ex. 4 at 54-57, 70. If the defense had believed such testimony
about Rubin's behavior or conversation soon after the killing would
have assisted her, Miller, an obviously friendly witness, was certainly
available to testify. Yet the defense chose not to open that door, in a
decision that no one does, or could, attribute to a desire to protect
Longest and Gavin.

   To be sure, the prosecution made good use of the missing pieces
in Rubin's account, pointing out that she had left the scene of the
shooting and had checked herself into the hospital under a false name;
and if Longest and Gavin had testified the jury would probably have
heard that they told Rubin to leave and use an alias. But see supra n.1.
But the same prosecutor who used the missing pieces in Rubin's story
to the State's advantage could certainly have made hay out of Longest
and Gavin's more detailed account of Rubin's behavior — amplified
by whatever additional facts a waiver of privilege might have
revealed through testimony by Longest, Gavin, or Miller.

   Moreover, even if calling Longest and Gavin had been a more
attractive option, the decision not to call them was part of the broader
defense strategy aimed at allowing Rubin to escape conviction alto-
gether. Rubin's team of trial lawyers explained that they focused on
asserting attorney-client privilege as a way to exclude the testimony
of her other private detective, Robert Leopold, which, they believed,
was so uniquely damaging to Rubin that if it could be excluded as
privileged, Rubin would walk free.3 Of course, as it turned out, the
trial court permitted Leopold to testify, and on appeal this was held
to be only harmless error. See Rubin v. State, 602 A.2d at 684-90. But
at the time, trial counsel hoped to exclude Leopold's observations,
leaving a far greater area of doubt as to events surrounding the shoot-
ing.
____________________________________________________________
   3
     Leopold was the only witness who testified that Rubin's purse con-
tained bullets fitting the gun she said her husband had brought to the
scene.

            20
   Trial counsel's lucid explanations, both of the trial strategy they
followed and of the danger to Rubin in the strategy she now suggests,
clearly show why testimony by Longest and Gavin was not an "objec-
tively reasonable" alternative strategy that the circumstances at trial
"clearly suggested." Mickens, 240 F.3d at 361. In sum, the pitfalls
involved in Longest and Gavin's testimony about the night of the kill-
ing and the possibility of excluding Leopold's testimony and leaving
massive gaps in the State's case demonstrate that under any standard,
Rubin has not shown that the decision not to call Longest and Gavin
had an adverse effect on her defense.4

   Applying the stringent AEDPA standard of review, as we must,
renders this conclusion inescapable. On habeas review we may only
reverse the state post-conviction court if its determination was "con-
trary to, or involved an unreasonable application of" clearly estab-
lished federal law. 28 U.S.C.A. § 2254(d)(1). In this case, the state
post-conviction appellate court concluded that "it is understandable
why [Longest and Gavin] were never called to the stand by the
defense team." Considering the perils on the road not taken, I can
only agree. In any event, the state post-conviction court's conclusion
____________________________________________________________
  4
     The district court also held that Longest and Gavin denied Rubin
effective counsel during the pretrial phase. See Rubin v. Gee, 128 F.
Supp. 2d at 865-68. However, the court pointed to no specific adverse
effect of Longest and Gavin's out-of-court activities after trial counsel
entered the case, see id. at 866-67, and it is difficult to see how their pre-
sumed desire to avoid testifying could have affected trial preparation,
given the very limited out-of-court work that even the district court attri-
buted to them. Id. at 867. I note that a grand jury indicted Rubin, so her
initial waiver of indictment had no effect whatsoever on her trial. Nor is
it plausible that prosecutorial focus on Longest and Gavin before trial
would have diverted the prosecutors' attention from Rubin. The prosecu-
tors were investigating Longest and Gavin well prior to Rubin's trial, see
ante at 11, making it clear to Rubin's three other, non-conflicted lawyers
that they had the option of throwing Longest and Gavin to the wolves.
Moreover, in view of the fact that Rubin alone shot her husband, the
prosecutors were hardly likely to immunize her or allow her to plead to
an equivocal account of the killing in order to pursue her counsel for
obstruction of justice. Perhaps for these reasons, the majority tellingly
does not hold that Longest and Gavin denied Rubin effective counsel
during the pretrial phase.

            21
that Rubin suffered no adverse effect from the decision not to call
Longest and Gavin — that calling them was not an "objectively rea-
sonable" strategy that was "clearly suggested by the circumstances"
— was certainly not itself objectively unreasonable.

   Finally, and most basically, the majority's contention — that "Lon-
gest and Gavin's direct representation of Rubin was adversely
affected by their conflict of interest" because they determined they
would not testify at trial — rests on a false premise. Ante at 12-13.
In fact, Longest and Gavin did not determine that they would not tes-
tify. Rather, as the state court expressly held, the "choice to offer
[their] testimony was neither Longest's or Gavin's to make." Instead,
like all "trial strategy" decisions, the state court held that the decision
as to whether Longest and Gavin would testify was made by the three
"outstanding attorneys," Rubin v. Gee, 128 F. Supp. 2d at 862, who
represented Rubin at trial. The majority expressly states that it does
"not call into question the state court's factual finding that Rubin's
trial lawyers made the decision to not call Longest and Gavin as wit-
nesses." Ante at 14. Given this state-court finding, Rubin has not
established and cannot establish the necessary "link[ ]" between Lon-
gest and Gavin's "actual conflict" and the decision she challenges. See
Mickens, 240 F.3d at 361.

   Therefore, the majority's first reason for concluding that Longest
and Gavin's conflict of interest "adversely affected Rubin's represen-
tation," ante at 12, unquestionably fails.

             B.

    The majority's only other rationale for concluding that Longest and
Gavin's conflict of interest adversely affected Rubin's representation
is that this conflict assertedly tainted Rubin's three trial counsel,
Barry Helfand, Alan Goldstein, and Fred Joseph. The majority does
not suggest that any member of the three-man trial team, himself, had
any conflict of interest with Rubin. Nevertheless, the majority con-
cludes that the conflict of interest of non-trial counsel (Longest and
Gavin) infected the trial team. Maybe so, but the Supreme Court has
never endorsed such a theory.5
____________________________________________________________
  5
    Indeed, in Sullivan the Court specifically noted that both conflicted
lawyers "played important roles at all three [defendants'] trials," as a

            22
   In holding to the contrary, the majority heavily relies on our prece-
dent, United States v. Tatum, 943 F.2d at 373-79. Recently, however,
the Second Circuit reached the opposite conclusion, finding that "be-
cause [a conflicted lawyer] had no input into trial strategy, his partici-
pation [at trial] does not require per se reversal." Triana v. United
States, 205 F.3d 36, 42 (2d Cir. 2000). But see Tatum, 943 F.3d at 378
("From the necessary conclusions that [the conflicted lawyer] was an
acknowledged source of information to [the non-conflicted lawyer]
and [the latter] . . . felt the need to have [the conflicted lawyer] pres-
ent throughout the trial, we conclude that the presentation of [the]
defense was the product of both . . ., even though their contributions
may have varied in function and degree.").

   Although I certainly prefer our approach, in light of the Supreme
Court's silence on the point, it is impossible to conclude that it was
"clearly established," as a matter of Supreme Court law, that our rule
must be followed. See 28 U.S.C.A. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 412 (2000). Indeed, the circuit split exhibited by Triana
and Tatum testifies to the absence of any Supreme Court case that
resolves the question. Nor can I conclude that the state court's appli-
cation of Sullivan, echoing that of the Second Circuit in Triana, was
objectively unreasonable.

   Even if we could rely on our circuit precedent (ignoring well-
reasoned contrary precedent of a sister circuit) as indicative of "Fed-
eral law, as clearly established by the Supreme Court" or as limiting
objectively reasonable applications of that law, numerous distinctions
between Rubin's case and Tatum prevent reliance on Tatum here.
____________________________________________________________

predicate for its holding that the defendant had proved an actual conflict
of interest. See Sullivan, 446 U.S. at 342 (emphasis added). Although for
clarity's sake, I follow the majority's lead in treating taint as an "adverse
effect" question, the context of the Sullivan Court's comment suggests
that actually it may be more properly analyzed as a question of whether
an "actual conflict" exists. See also Beets, 65 F.3d at 1277-78. Viewed
that way, I would conclude, for the reasons set forth in text, that no
"clearly established Federal law as determined by the Supreme Court,"
28 U.S.C.A. § 2254(d), holds that counsel in the position of Rubin's
three-man trial team had an actual conflict of interest.

            23
Given these factual and legal distinctions, it is doubly difficult to see
how the state appellate post-conviction court's conclusion, that Lon-
gest and Gavin's conflict did not render the assistance of Rubin's
three trial counsel constitutionally ineffective, was an objectively
unreasonable application of federal law as established by the Supreme
Court.

   First, the nature of Longest and Gavin's work for Rubin dramati-
cally differed from that of the conflicted lawyers in Tatum (and Tri-
ana) for their clients. The taint we considered in Tatum — from a
conflicted lawyer who appeared at trial, "helping" trial counsel
"throughout the presentation for this trial" to "bring [trial counsel] up
to speed" — is simply not implicated in Rubin's case. Tatum, 943
F.2d at 378; see also Sullivan, 446 U.S. at 342 (noting that the con-
flicted lawyers involved "played important roles at all three [defen-
dants'] trials"). Rather, the surviving two members of the trial team
have unequivocally testified — and the state post-conviction court has
found — that they, not Longest and Gavin, made all the strategic trial
decisions, in accord with their own views of "the best interest of Lisa
Rubin," and that they made no decisions in order to protect Longest
and Gavin.6 As one of them testified, "[N]ever, at any time, was there
any indication whatsoever that any discussion of strategy was based
upon any relationship . . . [t]hat any of us had with anyone in the
world other than [Rubin]." Consistent with this account, neither Lon-
gest nor Gavin planned the course of the trial, delivered an opening
statement or closing argument, examined a witness, or took part in the
____________________________________________________________
   6
     The state post-conviction court found that Longest and Gavin's only
contribution after Rubin turned herself in was "`paralegal/investigative'
work." The district court rejected this finding, see Rubin v. Gee, 128 F.
Supp. 2d at 869-70, largely on the basis of Longest and Gavin's self-
serving letter justifying their attorney fees. On examination, however,
that letter simply shows that Longest and Gavin scurried around to keep
Rubin happy and to retain the substantial fees she had paid them, not that
they did more than "paralegal/investigative work." In any event, the
majority (although discussing the letter at length) does not reject the
state-court finding as to the limited paralegal nature of Longest and
Gavin's work or the state-court finding that Longest and Gavin had no
effect on trial strategy. See ante at 12-13, 14. Accordingly, we are bound
by those findings. See 28 U.S.C.A. § 2254(d)(2), (e)(1). In light of them,
the majority's taint discussion rests on a sandy foundation indeed.

            24
trial in any way. Indeed, far from guiding and educating trial counsel
in court as in Tatum or Triana, Longest and Gavin never appeared at
trial or even noted their appearances in the trial court on behalf of
their client.

   Second, also unlike the conflicted lawyer in Tatum, who had alleg-
edly recommended commission of the charged crime, Longest and
Gavin gave relevant advice only after the crime had been committed.
Cf. Tatum, 943 F.2d at 374 (noting that the conflicted attorney alleg-
edly recommended the act in question, a bankruptcy fraud). Such
advice, unlike that of the lawyer in Tatum, does not directly illumi-
nate Rubin's intent at the time of the act. More broadly, Rubin's act
— shooting her husband — differs greatly from the financial crime
addressed in Tatum, in which advice of counsel might even have
excused the entire act; in Tatum the defendant might have blamed the
conflicted lawyer for recommending the very act that was the center
of the trial. Factual testimony by Longest and Gavin could not have
directly altered the law's treatment of the shooting itself.

     Third, Tatum, unlike the case at hand, did not involve federal
review of a state conviction. The claim of the defendant in Tatum
therefore simply did not implicate the "significant interest[ ] in . . .
federalism that underlie[s] the federal habeas scheme." Evans v.
Smith, 220 F.3d 306, 321 (4th Cir. 2000). In contrast, when consider-
ing Rubin's claim, we must bear in mind the "important interest[ ] in
. . . respect for state court judgments that underlie[s] the statutory
habeas scheme." Id. at 323. Congress's enactment of the AEDPA,
which occurred after we decided Tatum, further heightens the impor-
tance of these federalism concerns. To overturn the reasoned decision
of a state court on the basis of our precedent, rationally disputed by
another circuit and neither addressed nor confirmed by the Supreme
Court, would erode the balance that both our federalist Constitution
and the AEDPA are meant to protect.

   In sum, given the relevant circuit split on facts that more obviously
support a finding of ineffective assistance — that is, in cases where
the conflicted lawyer appeared at trial and where the facts concerning
the lawyer's role were more directly exculpatory — I cannot conclude
that the state appellate post-conviction court unreasonably applied
Supreme Court law by declining to rule that Longest and Gavin

            25
tainted the effectiveness of Rubin's trial team. Indeed, scrupulous
adherence to Mickens, 122 S. Ct. at 1245-46 (emphasizing the impor-
tance of actual representation of conflicting interests for the presump-
tion of prejudice), would seem to compel denial of habeas relief in
this case. For these reasons, the majority's only remaining rationale
for finding adverse effect also clearly fails.

            II.

   In the months between April 24, 1990, the night Lisa Rubin shot
her husband, and November 11, 1990, the day she was convicted of
his murder, she employed five lawyers. Although two of them, Lon-
gest and Gavin, served her poorly on the night of the killing, three
other talented lawyers took over within days of the killing and pre-
pared her case for over six months before trial. The state court specifi-
cally found that those three "highly qualified and experienced
criminal defense counsel" alone fashioned Rubin's defense, and rep-
resented her at trial. Those three lawyers made the tactical decision
to advise Rubin to assert privilege with respect to her conversations
with Longest and Gavin. Those three lawyers reached this decision to
avoid opening the door to everything Longest and Gavin knew about
Rubin's tangled relationship with her husband and her incriminating
behavior after she killed him. Neither the majority nor the district
court suggests that any one of those three lawyers did not skillfully
represent Rubin or had an interest conflicting with Rubin's.

   The only conceivable reason anyone would think of faulting the
performance of trial counsel is some kind of taint from the two con-
flicted lawyers who took no part in the trial. But the Supreme Court
has never held that a non-participating lawyer's conflict could so
infect otherwise unconflicted lawyers' representation as to render the
latter's representation constitutionally ineffective. Even when a con-
flicted lawyer appears at trial and handles trial work, the circuits
have divided as to whether a conflicted lawyer can taint the represen-
tation of other, otherwise unconflicted lawyers.

   Against this legal and factual background, I cannot conclude that
the state court's decision rejecting Rubin's ineffective-assistance
claim was "contrary to, or involved an unreasonable application of,

            26
clearly established Federal law, as determined by the Supreme Court."
28 U.S.C.A. § 2254(d)(1). I therefore respectfully dissent.

            27
