                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1451
                                    ___________

Jose Antonio Caban,                    *
                                       *
            Petitioner-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
United States of America,              *
                                       *
            Respondent-Appellee.       *
                                  ___________

                              Submitted: August 20, 2001

                                   Filed: February 28, 2002
                                    ___________

Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.
                             ___________

LAY, Circuit Judge.

        Jose Antonio Caban appeals from the denial of his motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255. Caban asserts as grounds for
relief ineffective assistance of trial counsel under the Sixth Amendment. He ascribes
this alleged constitutional error to a conflict of interest purportedly arising from his
trial counsel’s relationship with a potential defense witness. This witness, Caban’s
former attorney, was not called at trial. According to Caban, this decision resulted
from his attorney’s divided loyalties and now entitles him to relief under § 2255. The
district court denied relief.1 We reject Caban’s arguments and affirm the denial of his
§ 2255 motion.

      On July 1, 1997, Caban was indicted on one count of conspiracy to distribute
and possess with intent to distribute cocaine and methamphetamine and two counts
of use of a communication facility in committing a felony. Caban was initially
represented by attorney A. Demetrius Clemons. At Caban’s arraignment, it was
determined that Clemons had a conflict of interest, as he also represented Samson
Jegede, an indicted coconspirator. Subsequently, the presiding magistrate appointed
attorney Michael McGlennen to represent Caban.

       Clemons and McGlennen were no strangers. They shared a Minneapolis office.
McGlennen was a godparent to Clemons’ daughter. McGlennen also represented
Clemons in disciplinary proceedings before the Minnesota Board of Professional
Responsibility. At the time of Caban’s trial, Clemons was on probation, and
McGlennen continued to receive correspondence from the board on Clemons’ behalf.
However, McGlennen declined to characterize his representation of Clemons as an
“active case” and conceded the relationship was not a traditional lawyer-client
relationship at the time of Caban’s trial.

      Samson Jegede, who pleaded guilty to the charges against him, testified against
Caban at trial. Jegede’s testimony was damaging. He confirmed that two wiretapped
phone conversations between Caban and Jegede referred, if cryptically, to their
conspiracy to distribute drugs.2 He testified that cash found in his residence upon his


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, presiding.
      2
      As found by the district court: “In the first conversation, which was recorded
on September 19, 1996, petitioner stated, <I got all that ready, bro.’ In the second
conversation, which was recorded on December 4, 1996, petitioner stated, <I got

                                         -2-
arrest was money Caban paid to him on a drug debt. He also admitted lying to police
in an earlier statement. He alleged that his attorney, Clemons, who was being paid
by Caban at the time, encouraged him to falsely deny Caban’s involvement in the
conspiracy. He also stated that Clemons encouraged him to sign a false bill of sale
for a boat purchased by Caban from Jegede. On appeal, Caban now alleges that the
bill of sale refutes Jegede’s testimony that Caban referred to a drug conspiracy in the
wiretapped phone calls.3

       The instant dispute arises from McGlennen’s failure to call Clemons to refute
Jegede’s testimony that the bill of sale was false. According to Caban, Clemons
could testify that Jegede’s signature on the bill of sale was genuine. However, Caban
argues, McGlennen’s personal and professional relationship with Clemons prevented
him from calling Clemons as a witness or offering the bill of sale as evidence.

       McGlennen concedes the truth of these allegations. He testified at the
evidentiary hearing on Caban’s § 2255 motion that his personal feelings for Clemons
caused him to refrain from calling Clemons because the prosecutor had promised a
searching cross-examination into Clemons’ ethical improprieties. McGlennen states
he did not want to subject Clemons to embarrassment. He also stated he did not offer
the bill of sale because, if he did, the prosecutor had opined it was his ethical
obligation to refer Clemons to the Board of Professional Responsibility for his
involvement in allegedly falsifying the document. McGlennen stated these conflicts
caused him to provide ineffective assistance to Caban.



nine.’ Jegede testified that these statements referred to money petitioner was to pay
for drugs.” Order Denying Petitioner’s § 2255 Motion (Dec. 18, 2000) at 4.
      3
         Caban now asserts that his statement, “I got nine” refers to $9000 that Caban
was to pay to Jegede for the boat in December, 1996. Jegede disputed this claim at
trial, stating that Caban had paid $9000 of the $10,000 purchase price in August,
1996.

                                         -3-
       At the conclusion of the evidentiary hearing, the trial court found there was no
conflict of interest. The court found McGlennen was not a credible witness and his
failure to call Clemons or introduce the bill of sale had been the result of strategic
considerations, not divided loyalty. Thus, the court denied Caban’s request for post
conviction relief.

                                       Analysis

       The Sixth Amendment guarantees defendants effective assistance of counsel.
“The Sixth Amendment right to counsel has been interpreted to provide for
representation that is ‘free from conflicts of interest or divided loyalties.’” United
States v. Reed, 179 F.3d 622, 624 (8th Cir. 1999) (quoting United States v. Acty, 77
F.3d 1054, 1056 (8th Cir. 1996)). However, the Supreme Court has placed the burden
on defendants to prove violation of this guarantee. Strickland v. Washington, 466
U.S. 668 (1984), sets forth the general standard. First, the defendant must show that
his attorney’s performance was deficient, that it “fell below an objective standard of
reasonableness.” Id. at 688. Second, the defendant must show the inadequate
representation prejudiced his defense by depriving him of a fair trial, defined as “a
trial whose result is reliable.” Id. at 687. This is a heavy burden.

       In two cases prior to Strickland, however, the Court held the burden may be
lighter for defendants who assert ineffective assistance of counsel because of a
conflict of interest involving their attorney. Holloway v. Arkansas, 435 U.S. 475
(1980), addressed situations where the trial court is made aware of a potential conflict
of interest before, during, or in some instances, after trial. Under those
circumstances, the Court held the trial court has a duty to conduct a searching inquiry
into the possibility of a constitutional violation arising from that conflict. See Wood
v. Georgia, 450 U.S. 261, 272 n.18 (1981) (noting that Cuyler v. Sullivan, 446 U.S.
335, 347 (1980), “mandates a reversal when the trial court has failed to make an
inquiry even though it ‘knows or reasonably should know that a particular conflict

                                          -4-
exists’”). Failure to undertake this inquiry mandates an automatic reversal of any
conviction “upon a showing of possible prejudice.” Atley v. Ault, 191 F.3d 865, 873
(8th Cir. 1999); see also id. at 870 (“[W]hen a trial court fails to discharge its
constitutional duty to determine whether the defendant is receiving assistance of
counsel unburdened by a conflict of interest, prejudice is presumed and reversal of
the conviction is automatic.”) (citing Holloway). This per se rule of reversal applies
regardless of the nature of the conflict. Atley, 191 F.3d at 870 n.4.

        Cuyler v. Sullivan, 446 U.S. 335, addressed situations where the trial court is
never made aware of the conflict of interest. The Court held, to establish a conflict
of interest, the defendant must show that defense counsel “actively represented
conflicting interests,” id. at 350, and this conflict “adversely affected his lawyer’s
performance.” Id. at 348. If the defendant can show the existence of these two
factors, he is entitled to relief without having to prove actual prejudice. See Cuyler,
446 U.S. at 349-50. Rather, prejudice is presumed. Id. (“Once the Court concluded
that [an attorney] had an actual conflict of interest, it refused ‘to indulge in nice
calculations as to the amount of prejudice’ attributable to the conflict. The conflict
itself demonstrated a denial of the ‘right to have the effective assistance of counsel.’
Thus, a defendant who shows that a conflict of interest actually affected the adequacy
of his representation need not demonstrate prejudice in order to obtain relief.”)
(quoting Glasser v. United States, 315 U.S. 60, 76 (1942)).

       Since Cuyler, the Court has applied this “almost per se rule of prejudice” where
a defendant raises the issue of a conflict of interest for the first time on appeal or in
a motion for post-conviction relief. See, e.g., Strickland v. Washington, 466 U.S.
668, 692 (1984) (citing Cuyler); Wood, 450 U.S. at 272; Cuyler, 446 U.S. at 349-50
(citing Glasser, 315 U.S. at 76). However, the Court has never applied Cuyler’s rule
of presumed prejudice outside the context of multiple representation of codefendants
or serial defendants. See, e.g., Nix v. Whiteside, 475 U.S. 157, 176 (1986); see also
Beets v. Scott, 65 F.3d 1258, 1268 (5th Cir. 1995) (“Cuyler, a multiple representation

                                          -5-
case, restated a rule developed in multiple representation cases.”).

       Consequently, the recent trend among the circuits has been to limit application
of the “almost per se rule of prejudice.” When facing cases where the trial court had
no notice of a conflict, a number of our sister circuits have stated that not all conflicts
of interest are well suited to resolution under the strict rule of Cuyler. See, e.g.,
Williams v. Calderon, 52 F.3d 1465, 1472-73 (9th Cir. 1995) (refusing to extend
Cuyler treatment to an alleged conflict between a pro bono client and his attorney’s
financial interests); United States v. Zackson, 6 F.3d 911, 919-22 (2d Cir. 1993)
(refusing to extend per se treatment to alleged conflict arising from attorney’s time
constraints). Another circuit has explicitly held that Strickland’s requirement that the
defendant prove actual prejudice is the proper standard in conflict situations other
than those involving multiple representation of codefendants, the kind of situation
addressed directly by Cuyler and its predecessor Glasser. See Beets, 65 F.3d at 1268-
79 (holding that the “not quite per se rule of prejudice” does not apply when the
conflict of interest at issue is a conflict between the client’s interests and the
attorney’s own self-interest; the Cuyler test only applies in cases of multiple
representation); United States v. Mays, 77 F.3d 906, 909 (6th Cir. 1996) (approving
Beets).

       We believe there is much to be said in favor of holding that Cuyler’s rationale
favoring the “almost per se rule of prejudice” does not apply outside the context of
a conflict between codefendants or serial defendants. As Strickland explained, some
finding of prejudice is an essential factor in proving ineffective assistance of counsel.
Under Cuyler, loyalties divided between codefendants necessarily will infect the very
core of at least one’s defense, and prejudice should be presumed. However, the same
impact will not be found automatically in other conflict situations. The latter may
have such limited consequences that they will not invariably demonstrate prejudice
and “a denial of the ‘right to have the effective assistance of counsel.’” Cuyler, 446
U.S. at 349 (quoting Glasser, 315 U.S. at 76). In those cases, sound reasoning

                                           -6-
supports requiring a defendant to prove actual prejudice under the Strickland standard
in order to meet the constitutional standard for ineffective assistance of counsel.

       The Sixth Amendment right to counsel exists in order to protect the
fundamental right to a fair trial. Strickland, 466 U.S. at 684. Although a competent
and loyal attorney is an important part of the process by which we guarantee fairness,
the participation of such an attorney is not itself the baseline measure of fairness.
Rather, the Strickland Court held the true measure of fairness is reliability. Id. at 687.
A fair trial is one where we can have confidence the correct outcome ultimately was
reached. The Court imposed the “actual prejudice” requirement to guarantee that
reliability remained the central focus. Cuyler does not reflect a change in that
calculation. Rather it held, in a conflict situation involving multiple representation
of codefendants, the probability of an unreliable outcome was so high that defendants
need not prove actual prejudice.

       As noted in Beets, “[a conflict’s] consequences on the quality of representation
range from wholly benign to devastating.” Beets, 65 F.3d at 1271. The court held
that applying a single, inflexible rule to a “spectrum of potential ethical problems” is
a “draconian remedy.” Id. Likewise, it noted that “[n]ot all conflicts of interest that
affect the attorney’s ‘duty of loyalty’ have the same consequences, and they are not
all suited to Cuyler’s stringent rule.” Id. at 1269. This makes sense. The real
possibility of inconsequential errors in conflict situations other than multiple
representation precludes application of the Cuyler presumption. In cases of a single
lawyer representing codefendants, manifest injustice is so likely it is correct to
presume prejudice rather than indulge in “nice calculations,” see Strickland, 466 U.S.
at 692; Cuyler, 446 U.S. at 349, when a defendant can satisfy Cuyler’s requirements.
However, as a factual matter, not every other conflict will result in a complete
miscarriage of justice. In those cases, only the Strickland rule, which requires a
showing of actual prejudice, can square conflict analysis with the need to show real
injustice to justify relief under the constitutional standard for ineffective assistance

                                           -7-
of trial counsel. See Beets, 65 F.3d at 1272 (“A blurring of the Strickland standard
is highly undesirable. As a result of the uncertain boundary between Cuyler and
Strickland, the focus of Sixth Amendment claims would tend to shift mischievously
from the overall fairness of the criminal proceedings–the goal of ‘prejudice’
analysis–to slurs on counsel’s integrity–the ‘conflict’ analysis. Confining Cuyler to
multiple representation claims poses no similar threats to Strickland.”).

      Notwithstanding this reasoning, however, this court has stated that Cuyler
applies to all conflict of interest cases, not merely cases involving representation of
multiple or serial defendants. See Koste v. Dormire, 260 F.3d 872, 879 (8th Cir.
2001); Atley v. Ault, 191 F.3d 865, 870 n.4 (8th Cir. 1999).

        However, we believe these statements are dicta. Atley and Koste, as well as
United States v. Horton, 845 F.2d 1414 (7th Cir. 1988), cited therein, involved
instances where the trial court was put on notice of a conflict. Thus, our earlier
statements are both correct and limited. When given notice of a conflict of interest,
the trial court is obliged to conduct an inquiry regardless of the nature of the conflict.
See Wood, 450 U.S. at 272 n.18; Holloway, 435 U.S. at 489. However, the Court has
never extended Cuyler’s rule pertaining to “non-notice” cases beyond the limiting
context of multiple or serial representation. See Beets, 65 F.3d at 1266-68 (analyzing
Supreme Court cases following Cuyler). We believe our own precedent to be
consistent with the Court’s approach; Atley and Koste merely restate the undisputed
rule for cases where the trial court was put on notice of a conflict. Those cases do not
limit our analysis because here the defendant failed to notify the trial court of a
conflict and only asserts the claim for the first time in a motion for post-conviction
relief.

       Fortunately, we need not create even the appearance of a conflict with our prior
statement because we need not choose between the Strickland and Cuyler standards
in the present case. We hold that Caban would lose under either standard and, thus,

                                           -8-
refrain from adopting either standard as the law of this circuit for non-notice conflict
cases not involving multiple or serial representation.

      A. Representation of Conflicting Interests

      In the present case, it is clear McGlennen concurrently represented two clients.
Representation of Caban is undisputed. As for Clemons, it appears from the record
that McGlennen was actively representing Clemons before the ethics board at the
time of the trial. The defense offered evidence that McGlennen was corresponding
with the board on Clemons’ behalf. This would be consistent with the most recent
Minnesota disciplinary decisions regarding Clemons, which put him on probation
subject to supervision by a practicing attorney. See In re Disciplinary Action Against
Clemons, 530 N.W.2d 537 (Minn. 1995); In re Disciplinary Action Against Clemons,
549 N.W.2d 93 (Minn. 1996). That attorney was directed to file quarterly reports on
Clemons’ progress. From the record, it appears that McGlennen was that attorney.4

       It also is apparent that these two clients’ interests conflicted. We note the trial
court tentatively found no conflict existed. However, this finding is contradicted by
McGlennen’s testimony in the § 2255 proceeding, apparently given against his self-
interest, that he was conflicted because of his past representation of, and friendship
with, Clemons. Certainly, the trial court as finder of fact need not credit all testimony
equally, and generally we will defer to trial courts’ findings as to credibility of
witnesses. See United States v. Reed, 179 F.3d 622, 625 (8th Cir. 1999). However,
the unique circumstances of this case necessitate a further inquiry on our part.



      4
         As noted above, McGlennen testified his work for Clemons was not an
“active case” and theirs was not the typical attorney-client relationship. However,
that distinction does not preclude a finding of a conflict of interests. See Dawan v.
Lockhart, 31 F.3d 718, 721 (8th Cir. 1994) (noting that an attorney can be subject to
an actual conflict of interests between a current client and a former client).

                                           -9-
       In this case there was a conflict in two respects. First, there was the conflict
between Caban and Clemons. If McGlennen put Clemons on the stand to testify to
the bill of sale on Caban’s behalf, the prosecutor stated that he would be obliged to
turn the matter over to the ethics board on his information that the bill of sale was
phony. Assuming the bill to be disputed evidence,5 the conflict is clear. McGlennen
knew it was against Clemons’ interests to testify and be subject to embarrassing
cross-examination and, possibly, referral to the ethics board.

        There also was the conflict between Caban and McGlennen arising from
McGlennen’s personal feelings and self-interest in protecting Clemons. McGlennen
clearly had a close personal relationship with Clemons. He testified under oath and
to his own potential detriment that he did not want to subject his friend to an
embarrassing cross-examination. Even if this was not the typical conflict situation,
i.e. a single lawyer representing multiple defendants in a mutual prosecution, the
division of loyalties is apparent.

      This conflict satisfies Cuyler’s first requirement. 446 U.S. at 350. We also
believe it satisfies Strickland’s requirement that the defendant show deficient
performance, 466 U.S. at 688; it requires no complex analysis to recognize that an
attorney who functions under a conflict of interest generally acts unreasonably.


      5
        The Government argues that no conflict can exist because the bill of sale is
fraudulent. Thus, it argues, McGlennen could not have offered it as evidence under
any circumstances. Were we to assume fraud, this contention might have merit. Not
only would counsel have been precluded from offering the evidence, see Jackson v.
United States, 928 F.2d 245, 248 (8th Cir. 1991), but seemingly Clemons’ and
Caban’s interests would line up behind foregoing the evidence. Clemons would have
an interest in not perjuring himself, and Caban would have an interest in not tainting
his defense with perjury and false evidence. However, the trial court seemed
unwilling to find that the bill of sale actually had been falsified, and we are reluctant
to do so when it did not. In any event, it is unnecessary for us to address this question
in great detail, as subsequent analysis disposes of this case.

                                          -10-
Divided loyalties violate both Sixth Amendment requirements, see Dawan v.
Lockhart, 31 F.3d at 720-21, and well accepted rules of professional responsibility.
See ABA Model Rule of Professional Conduct 1.7(b) (“A lawyer shall not represent
a client if the representation of that client may be materially limited by the lawyer’s
responsibilities to another client or to a third person, or by the lawyer’s own interests,
unless: (1) the lawyer reasonably believes the representation will not be adversely
affected; and (2) the client consents after consultation. . . .”); Minnesota Rule of
Professional Responsibility 1.7, cmt. (“Loyalty to a client is also impaired when a
lawyer cannot consider, recommend or carry out an appropriate course of action for
the client because of the lawyer’s other responsibilities or interests.”). To the extent
Caban can show McGlennen engaged in a conflict of interest without his consent, he
satisfies Strickland’s “deficient performance” prong.

      B. Effect of the Conflict

       Notwithstanding Caban’s satisfaction of the first prong of both the Cuyler and
Strickland tests, we hold he would fail under the second prong of either. The district
court, in its order, and the Government, in its brief, provide numerous reasons why
McGlennen’s refusal to call Clemons as a witness did not prejudice the outcome of
Caban’s case. First, assuming Clemons could have testified at trial, his credibility
would have been challenged by cross-examination regarding his prior ethical
improprieties. Persuasive evidence indicated that the bill of sale was created after the
fact and Jegede signed it when Clemons visited him in jail on the conspiracy charges,
as well as while Clemons was practicing under his own conflict of interest between
Caban and Jegede. Moreover, McGlennen’s testimony indicates that Clemons’
knowledge likely was second hand. This would have made his testimony
inadmissible hearsay at trial.

      Furthermore, the bill of sale was of doubtful validity. It was difficult to read,
unsigned by Caban, and appeared to have been altered. Thus, even at best, Clemons

                                          -11-
only would have been able to establish the genuineness of the seller’s signature on
a document otherwise irregular on its face.6

       Finally, and perhaps most importantly, even if the bill of sale were admissible
evidence, it contradicted Caban’s testimony about the circumstances of the sale of the
boat. Caban testified he owed $9000 on the boat in December and he was referring
to that amount in the recorded telephone call. The bill of sale, however, appeared to
record a $5000 down payment in August with $5000 owing, to be paid in $250
monthly installments.

       We are convinced upon the evidence presented that the outcome of the trial
would have been the same regardless whether McGlennen operated under a conflict
of interest. Caban’s inability to show any adverse effect on the outcome of the trial
arising from McGlennen’s conflict persuades us that the outcome of Caban’s trial was
reliable. Therefore, Caban could not prove actual prejudice as required by Strickland
for post-conviction relief.

       Likewise, we believe McGlennen’s conflict did not adversely affect his
representation of Caban as required for relief under Cuyler. Stated alternatively,
McGlennen’s conflict made no difference to his trial strategy or otherwise to the
quality of his performance as Caban’s attorney. See Simmons v. Lockhart, 915 F.2d
372, 378 (8th Cir. 1990) (“[The defendant] must show, in addition, that this dual
representation made some difference, and that this difference was adverse to his
defense.”). The evidence showing an absence of actual prejudice also shows that a


      6
       It should be noted that, although Clemons was available at the evidentiary
hearing to testify as to what his trial testimony would have been, Caban did not call
him. At no point has Caban offered to prove what Clemons would have testified to
or how that testimony would have aided him at trial. For this reason alone it would
be very difficult to hold that Caban has satisfied his burden to prove Clemons’
absence as a witness prejudiced his defense.

                                        -12-
reasonable attorney in McGlennen’s position would not have called Clemons or
introduced the bill of sale. Indeed, the district court expressly stated that a reasonable
attorney would not have called Clemons at all. We agree with this conclusion and
believe that if a reasonable attorney would have adopted the same trial strategy absent
a conflict, Caban cannot show McGlennen’s performance was adversely affected by
that conflict. Consequently, Caban would fail under Cuyler’s second requirement
were that test applied.

       Under the circumstances, it is difficult to believe Clemons’ testimony would
have provided any actual benefit to Caban’s defense. Even McGlennen’s testimony
indicates only a hypothetical benefit. The remote likelihood that the testimony at
issue would have made a difference in Caban’s defense falls short of satisfying
defendant’s burden to show “actual prejudice” under Strickland. The same evidence
demonstrates that the quality of McGlennen’s performance was not objectively
undermined by the conflict; thus Caban cannot show “adverse impact” as required by
Cuyler. Therefore, we hold the outcome of Caban’s trial was reliable, and
consequently, he falls short of showing ineffective assistance of counsel in violation
of the Sixth Amendment as required for success on his § 2255 motion. Relief is
denied and the district court’s order is AFFIRMED.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -13-
