245 F.3d 31 (1st Cir. 2001)
KEITH MOUNTJOY, Petitioner, Appellant,v.WARDEN, NEW HAMPSHIRE STATE PRISON, Respondent, Appellee.
No. 00-1735
United States Court of Appeals  For the First Circuit
Heard December 6, 2000Decided April 3, 2001

[Copyrighted Material Omitted]
Michael J. Sheehan for appellant.
Ann M. Rice, Senior Assistant Attorney General, with whom Philip  T. McLaughlin, Attorney General for the State of New Hampshire, was on  brief for appellee.
Before Boudin, Lynch, and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.


1
Habeas corpus petitioner Keith  Mountjoy argues that his convictions for sexual assault and burglary  must be set aside because the New Hampshire judge who presided over his  trial did not advise him about his defense counsel's possible conflict  of interest and make an appropriate inquiry on the record, thereby  violating his Sixth Amendment right to counsel.  Federal review of  habeas petitions is governed by the Anti-Effective Death Penalty Act of  1996 (AEDPA), 28 U.S.C. § 2254(d) (Supp. II 1996).  Under the standards  of AEDPA, the district court denied Mountjoy's petition, finding that  the underlying decision of the New Hampshire Supreme Court was neither  contrary to nor an unreasonable application of clearly established  federal law as determined by the Supreme Court of the United States. We affirm.

I.

2
The facts in this case are not disputed.  In 1992, Keith  Mountjoy was charged with aggravated felonious sexual assault and  burglary.  The victim was bound and raped by a man who came into her  apartment in the early hours of January 4, 1992.  One of the  government's witnesses was Dennis Pratte, a police officer for the town  of Newmarket who responded when the victim's son called the police. Officer Pratte testified about interviewing the victim and collecting  physical evidence.  He gave testimony favorable to Mountjoy, reporting  that the victim said she could not identify her attacker on the morning  after she was raped.


3
Mountjoy's first and second trials ended in hung juries. Defense counsel Stephen Jeffco represented Mountjoy at both trials, and  Officer Pratte testified for the government at both.  In January 1994  Jeffco agreed to defend Officer Pratte against charges of sexually  assaulting his stepdaughter.  Shortly before Mountjoy's third trial  began on April 11, 1994, Jeffco told the trial judge that he was  representing Pratte, who was then awaiting trial.  Jeffco said he did  not think the simultaneous representation of Mountjoy and Pratte posed  a conflict of interest for him.  The prosecutor agreed.  Jeffco also  informed the court that he had told Mountjoy he was serving as Pratte's  lawyer, and that Mountjoy wanted Jeffco to continue representing him. Jeffco's disclosure to the court took place in an unrecorded in-chambers conference.  Mountjoy was not present, and the judge did not  speak to him about Jeffco's possible conflict of interest.  Mountjoy  did not object to Jeffco's representation at trial.


4
While the record does not include transcripts of the first  two trials, Mountjoy does not dispute that Pratte gave essentially the  same testimony at the third trial that he had given at the first two,  and that Jeffco cross-examined him in much the same way.  Pratte's  testimony was again helpful to the defense.1  In his closing argument  to the jury, Jeffco generally criticized Pratte's police department for  its investigation of the crime, particularly because of its failure to  follow up on a lead about a possible second suspect.


5
On April 15, 1994, the jury convicted Mountjoy of both  charges.  The court imposed a 15 to 30 year sentence.  On May 23,  Mountjoy filed a pro se motion for judgment of acquittal on the ground  that his counsel had a conflict of interest.  The trial court appointed  a public defender to represent Mountjoy during post-trial proceedings. In February 1995, the public defender filed a motion to set aside the  verdict based on the court's failure to inquire into Jeffco's conflict  of interest and ineffective assistance of counsel.  The trial court  held a hearing on the matter on August 10, 1995.  Mountjoy testified  that Jeffco did not tell him about the simultaneous representation of  Officer Pratte.  In a deposition, Jeffco said that he told Mountjoy he  was representing Pratte during a brief conversation on the steps of the  courthouse just before the beginning of the third trial.  Jeffco said  he did not specifically remember Mountjoy's response, but that Mountjoy  had consented to the concurrent representation.  When asked about his  cross-examination of Pratte, Jeffco said he did not try to impeach  Pratte because Pratte's testimony was exculpatory.


6
The trial court denied Mountjoy's motion for a new trial. The  court found that Mountjoy knew about the concurrent representation,  that Jeffco had defended the case in the same way at the third trial as  he had at the first and second ones, and that the defense would have  called Pratte as a witness because of his exculpatory testimony had the  government not done so.  The court acknowledged that it should have  discussed Jeffco's representation of Pratte with Mountjoy before trial,  but held that its failure to do so did not warrant reversal.  The court  also denied Mountjoy's claim that Jeffco did not provide Mountjoy  effective assistance of counsel because of the possible conflict.


7
Mountjoy appealed to the New Hampshire Supreme Court.  In a  published opinion, the court denied relief.  See State v. Mountjoy, 708 A.2d 682 (N.H. 1998).  Mountjoy filed a petition for habeas relief  in state court on July 7, 1999.2  The lower state court held a hearing  on September 10, 1999, and denied relief on September 23.  The New  Hampshire Supreme Court declined to hear Mountjoy's collateral appeal. Mountjoy filed a habeas petition in federal court on January 12, 2000,  seeking collateral review of three claims: the trial judge's failure to  discuss with him before trial his right to conflict-free  representation, ineffective assistance of appellate counsel, and delay  in processing his state court appeal.  After the district court denied  the petition on all three grounds, it granted Mountjoy's request for a  certificate of appealability as to whether the trial court proceedings  violated Mountjoy's "constitutional right to conflict-free counsel." II.


8
AEDPA amended the federal law governing review of habeas  petitions.  In relevant part, the 1996 statute provides that


9
(d) An application for a writ of habeas  corpus on behalf of a person in custody pursuant  to the judgment of a State court shall not be  granted with respect to any claim that was  adjudicated on the merits in State court  proceedings unless the adjudication of the claim--


10
(1) resulted in a decision that was  contrary to, or involved an unreasonable  application of, clearly established Federal law,  as determined by the Supreme Court of the United  States.


11
28 U.S.C. § 2254(d)(1).  AEDPA "places a new constraint on the power of  a federal habeas court to grant a state prisoner's application for a  writ of habeas corpus."  Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the statute, "we focus the lens of our inquiry on the state . .  . court's decision and ask whether the court's application of the  analytic framework dictated by the relevant Supreme Court precedents  was objectively unreasonable" or contrary to that law.  See Williams v. Matesanz, 230 F.3d 421, 427-28 (1st Cir. 2000).


12
AEDPA's "contrary to" and "unreasonable application" clauses  yield two separate categories of analysis.  Taylor, 529 U.S. at 405; O'Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998).  A state court  decision is "contrary to" federal law as determined by the Supreme  Court, and so may be set aside on federal habeas review, if it "applies  a rule that contradicts the governing law set forth in our cases" or  "confronts a set of facts that are materially indistinguishable from a  decision of this Court and nevertheless arrives at a result different  from our precedent."  Taylor, 529 U.S. at 406.


13
Alternately, a state court decision may be set aside as an  "unreasonable application" of federal law as determined by the Supreme  Court "if the state court identifies the correct governing legal rule  from this Court's cases but unreasonably applies it to the facts of the  particular state prisoner's case," or "if the state court either  unreasonably extends a legal principle from our precedent to a new  context where it should not apply or unreasonably refuses to extend  that principle to a new context where it should apply."  Id. at 408. In defining an unreasonable application of federal law, the Court said  that "the most important point is that an unreasonable application of  federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original).  Thus under AEDPA, "a federal habeas  court may not issue the writ simply because that court concludes in its  independent judgment that the relevant state-court decision applied  clearly established federal law erroneously or incorrectly.  Rather,  that application must also be unreasonable."  Id. at 411.


14
In Mountjoy's case, the relevant state court decision for  review under AEDPA is the New Hampshire Supreme Court decision on  direct appeal in State v. Mountjoy, 708 A.2d 682 (N.H. 1998).  As the  New Hampshire court recognized, the governing Supreme Court precedents  for Mountjoy's claim that the trial court's failure to advise him about  Jeffco's possible conflict of interest violated his Sixth Amendment  rights are Holloway v. Arkansas, 435 U.S. 475 (1978); Cuyler v. Sullivan, 446 U.S. 335 (1980); and Wood v. Georgia, 450 U.S. 261  (1981).  "To the extent that inferior federal courts have decided  factually similar cases, reference to those decisions is appropriate in  assessing the reasonableness vel non [under AEDPA] of the state court's  treatment of the contested issue."  O'Brien, 145 F.3d at 25.


15
The New Hampshire Supreme Court neither applied a rule that  contradicted the Supreme Court's holdings in these cases nor reached a  different result based on a set of materially indistinguishable facts. Thus AEDPA's "contrary to" clause does not apply here.  See Taylor, 529  U.S. at 406 ("a run-of-the-mill state-court decision applying the  correct legal rule from our cases to the facts of a prisoner's case  would not fit comfortably within § 2254(d)(1)'s 'contrary to' clause"); Matesanz, 230 F.3d at 426 ("A state court decision that applies the  correct legal rule but reaches an independent outcome on different  facts cannot be deemed to run at cross purposes to Supreme Court  precedent.").  We thus turn to AEDPA's second inquiry: whether the New  Hampshire court unreasonably applied Holloway, Sullivan, and Wood to  the facts of Mountjoy's case.  "This reduces to a question of whether  the state court's derivation of a case-specific rule from the Court's  generally relevant jurisprudence appears objectively reasonable." O'Brien, 145 F.3d at 25.

III.
A. Relevant Supreme Court Precedents

16
The Sixth Amendment guarantees a defendant's right to counsel  in all criminal prosecutions.  U.S. Const. amend. VI.  Defendants have  a "correlative right to representation that is free from conflicts of  interest."  Wood, 450 U.S. at 271.  Even if defense counsel has a  conflict, however, the court may sometimes allow the attorney to  continue with the representation if the defendant makes a voluntary,  knowing, and intelligent waiver.  See Wheat v. United States, 486 U.S.  153, 163 (1988) (district courts have substantial latitude in declining  to grant waivers); Holloway, 435 U.S. at 483 n.5 (a defendant may waive  his right to representation that is "unhindered by a conflict of  interests").  The purpose of a trial court's inquiry into a possible  conflict is to "evaluate the conflict and ensure it is either  eliminated or waived."  United States v. Rogers, 209 F.3d 139, 146 (2d  Cir. 2000).  The inquiry thus includes an on-the-record discussion of  the representation with the defendant.  Cf. Fed. R. Crim. P. 44(c)  ("[T]he court shall promptly inquire with respect to such joint  representation and shall personally advise each defendant of the right  to the effective assistance of counsel, including separate  representation.").  When courts do not obtain a waiver to conflict-free  counsel (and even sometimes when they do), defendants may challenge the  representation on appeal by bringing an ineffective assistance claim. See Wheat, 486 U.S. at 162.


17
The extent of the trial court's responsibility to make an  inquiry into the defendant's understanding of a possible conflict is  the subject of the Supreme Court's decisions in Holloway, Sullivan, and Wood.   In Holloway, one defense lawyer represented three co-defendants.  In pre-trial motions and at trial, the lawyer repeatedly  objected to the joint representation, telling the judge that his  conflicting loyalties to his clients hindered his ability to advocate  for them.  The judge refused to appoint separate counsel and did not  adequately inquire into the risk posed by the conflict.  Holloway, 435  U.S. at 484.  On appeal, the Supreme Court held that the Sixth  Amendment requires automatic reversal of a conviction "whenever a trial  court improperly requires joint representation over timely objection." Id. at 488. Holloway premised its holding on the shared responsibility  of the trial court and defense counsel to prevent conflicts from  infringing on the defendant's Sixth Amendment rights.   Id. at 485.3


18
In Sullivan, the Court considered two questions left open in Holloway: whether a state trial judge must inquire about multiple  representation even though no party objects at trial, and whether the  "mere possibility of a conflict" means that a defendant's Sixth  Amendment rights were violated.  Sullivan, 446 U.S. at 345. Emphasizing defense counsel's ethical obligation to advise a trial  court when a conflict arises, the Court said that when defense counsel  does not alert the court to a conflict by objecting, "nothing in our  precedents suggests that the Sixth Amendment requires state courts  themselves to initiate inquiries into the propriety of multiple  representation in every case."  Id. at 346. At the same time, the Court  left open some possibility, albeit a narrow one, that Holloway may  apply without an objection by the defendant.


19
Absent special circumstances, therefore, trial  courts may assume either that multiple  representation entails no conflict or that the  lawyer and his clients knowingly accept such risk  of conflict as may exist. . . . Unless the trial  court knows or reasonably should know that a  particular conflict exists, the court need not  initiate an inquiry.


20
Id. at 346-47 (footnotes omitted).


21
Addressing the relationship between a possible conflict and  a Sixth Amendment violation, Sullivan next held that when a defendant  does not object to a possible conflict and the trial judge is not  otherwise alerted to such a conflict, the defendant "must demonstrate  that an actual conflict of interest adversely affected his lawyer's  performance."  Id. at 348.  This showing of harm need not, however,  rise to the level of prejudice.  Instead, "prejudice is presumed when  counsel is burdened by an actual conflict of interest."  Strickland v. Washington, 466 U.S. 668, 692 (1984).  This presumption means that a  defendant need not show that he would not have been convicted but for  choices his lawyer made because of conflicting loyalties.  Sullivan,  446 U.S. at 349-50. Instead, the necessary showing might involve  failure to cross-examine a witness whose testimony favored one  defendant in a joint representation over the other.  Id. at 350.


22
In Wood v. Georgia, in an unusual factual context, the Court  again addressed the question of a trial court's responsibility to  inquire about a possible conflict.  In Wood, three employees of an  adult theater and bookstore were convicted of distributing obscene  materials and sentenced to probation on the condition that they make  installment payments toward $5,000 and $10,000 fines.  The defendants  defaulted on their payments, saying that they had expected their  employer to pay the fines for them.  The Supreme Court granted  certiorari to determine whether imprisoning a probationer because he  cannot pay a fine violates the Equal Protection Clause. Wood, 450 U.S.  at 264.  After hearing the case, however, the Court decided it on a  different due process ground.  The Court noted that the employer's  lawyer had represented the defendants throughout the proceedings  against them, and that this lawyer did not challenge the amount of the  fines imposed at sentencing.  Id. at 266-268.  The trial court was  aware of these circumstances and the prosecutor raised the question of  whether they gave rise to a conflict of interest.  Id. at 272-73.


23
Based on the record, the Court concluded that a possible  conflict of interest was "sufficiently apparent . . . to impose upon  the court a duty to inquire further."  Id. at 272.  In response to the  dissent's argument that the majority had "gone beyond" Sullivan, the  Court said:


24
nothing in that case rules out the raising of a  conflict-of-interest problem that is apparent in  the record.  Moreover, Sullivan 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 exists.'


25
Id. at 272 n.18 (quoting Sullivan, 446 U.S. at 347).


26
Wood thus emphasized that trial judges have a duty to inquire  not only when defendants object to a possible conflict, but also when  trial judges are or should be independently aware of a possible  conflict. Yet the Wood Court did not impose the remedy of a new trial  based on the trial judge's failure to make the required inquiry,  despite the above-quoted language from its own footnote about Sullivan mandating reversal under such circumstances.  Moreover, without  discussing the implications for Holloway's rule of automatic reversal,  the Court remanded the case for a hearing to determine "whether the  conflict of interest that this record strongly suggests actually  existed."  Id. at 273.


27
Not surprisingly, the circuit courts have ruled differently  in the wake of Wood about the type of remedy that is triggered when the  trial court has a duty to inquire about a possible conflict and fails  to do so.  Some courts have reversed for a new trial whenever the  possibility of a conflict was sufficiently apparent to impose a duty to  inquire.  See Riggs v. United States, 209 F.3d 828, 831 n.1 (6th Cir.  2000); United States v. Cook, 45 F.3d 388, 393-94 (10th Cir. 1995); Dawan v. Lockhart, 980 F.2d 470, 474-75 (8th Cir. 1992).  One court has  held that a post-trial inquiry into a possible conflict that was  evident before trial does not suffice.  See Rogers, 209 F.3d at 146. By contrast, we have held that in light of Wood, automatic reversal is  not required if a trial judge holds a post-trial hearing about whether  an actual conflict developed that adversely affected counsel's  performance, the standard for reversal under Sullivan.  Brien v. United  States, 695 F.2d 10, 15 n.10 (1st Cir. 1982) (petitioner's § 2255  hearing could "serve the same function that the remand served in Wood").  With this background in mind, we turn to the New Hampshire  Supreme Court's decision in Mountjoy's appeal.


28
B. The New Hampshire Supreme Court's Decision


29
On appeal to the New Hampshire Supreme Court, Mountjoy argued  that the trial court's failure to advise him about Jeffco's possible  conflict of interest required reversal of his conviction under Holloway and Hopps v. State Board of Parole, 500 A.2d 355 (N.H. 1985).  In Hopps, the state Supreme Court established a prophylactic rule for  criminal cases involving multiple representation.  The rule requires  defense counsel and the trial court to make a record of investigating the possibility of a conflict of interest and of each client's informed  consent to the dual representation.  Id. at 359.  The Hopps court  stated that judicial inquiry into possible conflicts was not  constitutionally required, but was "the better course" because of the  risk of conflict posed by multiple representation and the desirability  of avoiding post-conviction challenges.  Id.


30
In deciding Mountjoy's appeal, the New Hampshire Supreme  Court held that Hopps should apply when the trial court is made aware  of a possible conflict based on a defense attorney's concurrent  representation of a defendant and a government witness because of the  "similar risk of conflict in such dual representation."  Mountjoy, 708  A.2d at 683-84.  The court said that Jeffco's disclosure to the trial  judge that he was representing Pratte should have prompted the judge to  discuss the possible conflict with Mountjoy.  See id.


31
The court next considered whether Mountjoy was entitled to  a reversal of his conviction because of the trial court's failure to  conduct a Hopps inquiry and secure the defendant's waiver of conflict-free counsel.  The court concluded that Mountjoy was not entitled to Holloway's automatic reversal because such reversal is mandated only  when "a trial court improperly requires joint representation [of  codefendants] over timely objection."  Id. at 684 (citing Holloway, 435  U.S. at 488).  The court ruled that the failure to inquire "merely  requires this court to address a defendant's claim that he was denied  the effective assistance of counsel because of a conflict of interest." Id.  Noting that "[o]ur State constitutional standards are identical to  their federal counterparts on this issue," and citing Sullivan as the  federal standard, the court said that Mountjoy needed to show that  Jeffco's conflict adversely affected his performance at the third  trial.4  The court then stated the standard for showing adverse effect  that we set forth in Brien v. United States, 695 F.2d 10.5  See  Mountjoy, 708 A.2d at 684.  In Brien, we construed Sullivan as  requiring a petitioner to show first that his lawyer might have pursued  "some plausible alternative defense strategy or tactic," and second  that "the alternative defense was inherently in conflict with the  attorney's other loyalties or interests."  Id. at 15.  Rather than  testing Mountjoy's claim against this standard, however, the New  Hampshire court found that Mountjoy had waived the issue of whether  Jeffco's conflict adversely affected his performance because he had not  briefed that issue on appeal.  Mountjoy, 708 A.2d at 685.


32
In closing, the court said that Wood also did not entitle  Mountjoy to the relief that he sought because the outcome in that case  was a remand rather than a reversal.  Id.  Since the trial court held  a post-trial hearing on Mountjoy's claim and determined that Jeffco's  representation was not affected by an actual conflict, Mountjoy had  already received the further consideration provided in Wood by a  remand.  Id.


33
The New Hampshire Supreme Court's conclusion that Holloway and Wood did not require reversal of Mountjoy's conviction was a  reasonable application of Supreme Court precedent.6  It is true that the  trial court knew about Jeffco's possible conflict and so had a duty to  inquire under Sullivan and Wood.  See also United States v. Hernandez-Lebron, 23 F.3d 600, 604 (1st Cir. 1994) ("[I]nquiries must be made  into the propriety of multiple representation whenever the trial court  knows or reasonably should know that a particular conflict exists."). However, despite Wood's statement that Sullivan mandates reversal when  the court does not make the required inquiry, the Supreme Court in Wood did not grant a reversal in light of the lawyer's possible conflict of  interest, but rather remanded for further investigation.  As the New  Hampshire court recognized, in Mountjoy's case that investigation  occurred when the trial judge held a post-trial hearing to determine  whether an actual conflict burdened Jeffco's representation.


34
The New Hampshire Supreme Court took the same approach to the  Supreme Court case law that this court took in Brien v. United States,  695 F.2d 10.  In that case, the defendant argued in a federal habeas  petition that he was entitled to reversal under Holloway because he had  been represented at trial by a lawyer who belonged to the same law firm  as his codefendant's lawyer.  While Brien's counsel did not bring the  conflict to the court's attention before trial, his codefendant's  counsel did.  In response to Brien's habeas petition, the district  court held an evidentiary hearing, just as the New Hampshire court did  after Mountjoy's trial.  Based on the evidence presented at the  hearing, the district court found that Brien had not met his burden of  proving an actual conflict under Sullivan.  Id. at 15.


35
On appeal in Brien, we asked whether the trial court's  failure to inquire about the possible conflict before trial itself  required reversal of Brien's conviction, and found that it did not.  We  reasoned that by remanding Wood for further inquiry by the trial court,  the Supreme Court signaled that convictions should only be reversed if  there is a finding of an actual conflict that adversely affected the  lawyer's performance.  Id. at 15 n.10.  We thus concluded that the  petitioner's habeas hearing could "serve the same function that the  remand served in Wood."  Id.


36
Like the habeas hearing in Brien, the post-trial evidentiary  hearing that the New Hampshire trial court conducted in response to  Mountjoy's motion for a new trial also served the purpose of the remand  in Wood.  The court reexamined the trial transcript and the pleadings,  and heard testimony about Jeffco's possible conflict.   The court's  factual findings go directly to the question of whether Jeffco's  representation of Pratte adversely affected his performance as  Mountjoy's counsel, the standard for reversal under Sullivan.  Jeffco  had represented Mountjoy in two previous trials and had cross-examined  Pratte at both, and the trial court concluded that he conducted the  cross-examination at the third trial in the same way that he had before  he became Pratte's lawyer.  The court thus found that the facts of the  case lent unusual certainty to the conclusion that Jeffco's dual  representation did not cause Mountjoy harm.7


37
We conclude, therefore, that the New Hampshire Supreme Court  reasonably applied Holloway, Sullivan, and Wood in holding that the  trial court's failure to advise Mountjoy about his lawyer's possible  conflict of interest did not require automatic reversal, and that the  post-trial evidentiary hearing held on the matter served the same  function as the remand granted in Wood.  Following the standards of  AEDPA, we affirm.


38
Affirmed.



Notes:


1
  The victim lived in the same apartment complex as Mountjoy, and  she testified that a few days after being attacked she heard him  outside calling his dogs and identified him by voice as her assailant.  Officer Pratte testified, however, that the morning after the rape the  victim said she had no idea who the attacker was, and that she could  not clearly hear his voice because it was muffled by something that  covered the lower half of his face.  On cross-examination by Jeffco,  Officer Pratte added that the victim told him that her attacker did not  have a distinctive accent.


2
  Mountjoy previously filed a habeas petition in federal court on  October 8, 1997 that was dismissed for lack of exhaustion.


3
  The Court has explained that judges sometimes must serve as a  check against defense attorneys who may be less sensitive about  avoiding such conflicts than they should be.  Wheat, 486 U.S. at 163  ("Nor is it amiss to observe that the willingness of an attorney to  obtain such waivers [of conflicts of interest] from his clients may  bear an inverse relation to the care with which he conveys all the  necessary information to them.").


4
 The court said that based on its own precedent Sullivan applied to possible conflicts arising from situations other than joint representation. See Mountjoy, 708 A.2d at 684 (citing State v. Cyrs, 529 A.2d 947, 950 (N.H. 1987)). This is the majority position among the circuits. See, e.g., Riggs v. United States, 209 F.3d 828, 832 n.1 (6th Cir. 2000); Atley v. Ault, 191 F.3d 865, 870 n.4 (8th Cir. 1999); Spreitzer v. Peters, 114 F.3d 1435, 1451 (7th Cir. 1997); Porter v. Singletary, 14 F.3d 554, 560 (11th Cir. 1994).


5
  On this point the New Hampshire Supreme Court cited its own  precedent, State v. Guaraldi, 500 A.2d 360, 365 (N.H. 1985), which in  turns cites Brien, 695 F.2d at 15.


6
 We think the New Hampshire Supreme Court's application of these  precedents was largely correct.  Our only quibble is that the court did  not seem to recognize that the Hopps duty of inquiry, which applies  when a trial judge "is made aware of any potential for, or actual,  conflict of interest," Mountjoy, 708 A.2d at 683, is essentially a  statement of the constitutional rule set forth in Sullivan and Wood.


7
 The state habeas court also addressed this actual conflict issue  in its consideration of Mountjoy's claim of ineffective assistance of  appellate counsel.  In the state habeas proceeding, which included  another evidentiary hearing on the actual conflict issue, Mountjoy  argued that his appellate counsel was ineffective because he failed to  argue to the New Hampshire Supreme Court that Jeffco had an actual  conflict that adversely affected his performance.  Mountjoy reiterated  this claim in his habeas petition to the federal district court. Applying AEDPA, the district court found that the state habeas court  reasonably applied federal law,  denying Mountjoy's ineffective  assistance claim after reviewing the three alternative strategies that  Mountjoy argued Jeffco might have pursued at the third trial had he not  been representing Pratte.  Mountjoy argued that had Jeffco not  concurrently represented Pratte, he could have (1) argued to the jury  that the police, not the victim, originally suggested Mountjoy as the  attacker; (2) mounted a stronger attack on the police investigation of  the crime; (3) impeached Pratte by questioning him about his indictment  for sexual assault.  The state habeas court found that the first two  theories were not supported by the evidence, and that the third one was  precluded by the rules of evidence and thus found that Mountjoy's  appellate counsel made a "prudent and reasonable decision" not to  pursue the actual conflict claim under Burger v. Kemp, 483 U.S. 776,  784 (1987) (appellate counsel has discretion to choose stronger claims  over weaker ones).


