                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 99-2670EA
                                   _____________

David Dewayne Johnson,                   *
                                         *
             Appellant,                  *
                                         * On Appeal from the
      v.                                 * United States District Court
                                         * for the Eastern District
                                         * of Arkansas.
Larry Norris, Director, Arkansas         *
Department of Correction,                *
                                         *
             Appellee.                   *
                                    ___________

                             Submitted: January 10, 2000
                                 Filed: March 27, 2000

                                    ___________

Before RICHARD S. ARNOLD, FAGG, and HANSEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      The petitioner, David Johnson, appeals the denial of his petition for a writ of
habeas corpus. Although the District Court1 denied the petition on all grounds, it


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
granted a certificate of appealability on three issues: (1) whether evidence concerning
trial counsel's bipolar disorder should have been considered only in evaluating his
credibility, or, instead, as evidence of per se ineffective assistance of counsel, which
rendered the trial fundamentally unfair; (2) whether the petitioner was denied his Sixth
Amendment right to counsel because of an actual conflict of interest arising from his
trial counsel's representation of the petitioner and a defense witness; and (3) whether
trial counsel was ineffective during jury selection. We affirm the decision of the
District Court on all three of these issues.

                                           I.

       After a jury trial in 1990, the petitioner was convicted of capital murder. The
jury found that the petitioner murdered Leon Brown, a sixty-seven-year-old night
watchman at the Little Rock Crate and Basket Company. The evidence against the
petitioner was strong: he was admittedly seen at the scene of the crime, items stolen
from the crime scene were found in his possession, and physical evidence linked him
to the place of the murder. The petitioner was sentenced to death by lethal injection.
His conviction and sentence were affirmed on direct appeal to the Arkansas Supreme
Court. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). His petition for writ of
certiorari to the United States Supreme Court was denied. Johnson v. Arkansas, 505
U.S. 1225 (1992). His motion for post-conviction relief under Arkansas law was
denied, and that decision was affirmed by the Arkansas Supreme Court. Johnson v.
State, 321 Ark. 117, 900 S.W.2d 940 (1995).

       At his trial and on direct appeal, the petitioner was represented by Robert Smith.
The petitioner's issues before this Court all relate to Mr. Smith's representation. In
1993, Mr. Smith surrendered his law license. Between 1994 and 1996, he was
convicted of various felony counts of property theft. He is currently serving a fifteen-
year sentence in the Arkansas Department of Correction. During his testimony before


                                          -2-
the District Court, Mr. Smith, for the first time, revealed that he had been diagnosed
with bipolar disorder.

                                            II.

      We first consider the question of whether evidence concerning Mr. Smith's
bipolar disorder should have been considered only in evaluating his credibility, or
whether it should have been treated as showing per se ineffective assistance of counsel
which rendered the trial fundamentally unfair.

       In his habeas petition, the petitioner cited numerous examples of Mr. Smith's
conduct before and during trial which seem unprofessional, and perhaps bizarre. These
included lying to the petitioner about his experience in capital cases, submitting a false
application for malpractice insurance, being unprepared to present the petitioner's case,
and appearing confused during trial. When Mr. Smith was testifying before the District
Court about his performance, he stated that he had been diagnosed with bipolar
disorder. He stated that according to his psychiatrist, this disorder is partly to blame
for his legal problems. He stated that he was currently on medication for this disorder,
which he would have to take for life. The petitioner attempted to obtain Mr. Smith's
complete medical records, but Mr. Smith would not allow access to them.

       To uphold a claim of ineffective assistance of counsel, a court must find that the
counsel's performance was seriously deficient, and that the ineffective performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). However, the
petitioner argues that he should not be held to the normal Strickland prejudice
requirement. Rather, he says, Mr. Smith's bipolar disorder should be considered a
structural error, which should require a per se presumption of prejudice. The petitioner
relies on our decision in McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998) (failure to
notify the defendant of his right to a jury trial was structural error which did not require
proving prejudice), and argues that other circuits have found structural error when

                                            -3-
counsel is not mentally present at trial. See Javor v. United States, 724 F.2d 831 (9th
Cir. 1984) (counsel was per se ineffective when he slept through substantial portion of
trial); Tippens v. Walker, 77 F.3d 682 (2d Cir. 1986).

       We note at the outset that there is some question as to whether Mr. Smith had
bipolar disorder at the time of the petitioner's trial. Mr. Smith testified before the
District Court that he was diagnosed with bipolar disorder "last year," Habeas Tr. at
72, which would presumably refer to some time in 1996. He testified that he did not
recall having any of the symptoms of bipolar disorder in 1990, when the trial took
place, but he attributed some of his actions in 1992 and 1993 to the disorder. Id. at 73-
74. Petitioner offers instances of Mr. Smith's behavior during the petitioner's trial,
which are consistent with Mr. Smith's behavior in 1992 and 1993, to prove that Mr.
Smith was afflicted by bipolar disorder at trial. The District Court did not resolve this
issue, noting that "Mr. Smith . . . reported . . . having been diagnosed with bipolar
disorder which may or may not have manifested at the time of [the petitioner's] trial.".

        Even if we assume that Mr. Smith's bipolar condition existed during the
petitioner's trial, we decline to adopt the petitioner's proposed rule. This is not the type
of structural error envisioned in McGurk, where we recognized the limited number of
circumstances in which structural-error analysis was appropriate. Our Court has
previously declined to adopt a rule requiring a per se presumption of prejudice with
regard to mental illness. See Pilchak v. Camper, 935 F.2d 145,149 (8th Cir. 1991).
Bipolar disorder, like most mental illnesses, can have varying effects on an individual's
ability to function, and the disease can vary widely in the degree of its severity. We are
not convinced there is anything about Mr. Smith's bipolar condition that would not lend
itself to the normal fact-specific Strickland analysis. See Bellamy v. Cogdell, 974 F.2d
302, 308 (2d Cir. 1992). Any errors Mr. Smith made, even as a result of his mental
illness, should be apparent from the face of the trial record, or otherwise susceptible of
proof, and thus readily reviewable.


                                            -4-
       Therefore, using specific acts or omissions of counsel at trial, the petitioner must
prove that Mr. Smith's performance was deficient and prejudicial. Evidence of his
bipolar disorder can be considered in attempting to prove this. However, Mr. Smith's
statements about his bipolar condition, made in 1996, are not particularly probative in
proving deficient performance in 1991. The District Court was correct in reasoning
that this evidence is most probative in evaluating Mr. Smith's credibility and state of
mind, which are relevant to the petitioner's conflict-of-interest claim. The
unprofessional and perhaps bizarre behavior that the petitioner now claims was a result
of Mr. Smith's bipolar disorder includes lying to the petitioner about his experience in
capital cases, submitting a false application for malpractice insurance, and a general
lack of trial preparedness.2 Whether a result of bipolar disorder, character flaws, or just
bad lawyering, these examples do not rise to the level of constitutionally deficient
performance, because they cannot be shown to have affected the outcome of the case.

      Without the benefit of a per se presumption, evidence of Mr. Smith's bipolar
disorder does not help the petitioner to establish Strickland prejudice. The petitioner
cannot point to a single example of Mr. Smith's performance where there is a
reasonable probability that the result of the proceeding would have been different if Mr.
Smith had done something differently. Nor can the petitioner show that there is a
reasonable probability that, absent any example of Mr. Smith's unprofessional behavior,
the jury would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death. Strickland, 466 U.S. at 695. Even after we
consider the evidence of Mr. Smith's bipolar disorder, the petitioner's ineffective-
assistance-of-counsel claim fails.




      2
        The petitioner makes more specific ineffective-assistance claims with regard to
conflict of interest and jury selection. These will be addressed below.
                                           -5-
                                           III.

       The second question the District Court certified for appeal is whether the
petitioner was denied his Sixth Amendment right to counsel because of an actual
conflict of interest arising from Mr. Smith's joint representation of the petitioner and
Derrick Gilbert.

        At trial, the defense had intended to use Derrick Gilbert as a witness. Gilbert
was going to testify that another individual, Ford, had told Gilbert that Ford had sold
certain items of stolen property to the petitioner.3 This would explain why the items
of stolen property were found in the petitioner's possession. However, Gilbert never
testified. The prosecution had interviewed Gilbert, as a potential defense witness, prior
to trial. When Mr. Smith attempted to call Gilbert at trial, the Court inquired as to what
Gilbert's testimony would be. Mr. Smith responded that Gilbert would testify that Ford
had told him that he had sold the stolen goods to the petitioner. The Court noted that
such testimony would be inadmissible hearsay. Mr. Smith made no further argument
to try to get the testimony admitted. Nevertheless, the Court was about to swear
Gilbert in when the following exchange occurred:

             MRS. LaRUE (prosecuting attorney): I think at this time
             Mr. Gilbert is going to need an attorney. Mr. Fraiser and I
             went out and he informed us that if he testified today to what

      3
        There is a discrepancy in the record as to what exactly Gilbert told Smith his
testimony would be. At the District Court hearing, Gilbert testified that Ford claimed
to have committed the murder and the robbery, and to have sold the stolen goods to the
petitioner. In contrast, Smith has claimed throughout that Gilbert told him only that
Ford had claimed to have sold the stolen goods to the petitioner. The District Court
evaluated Smith's and Gilbert's credibility and all other evidence relevant to the claim
that Ford committed the murder and robbery. In light of this, the Court explicitly
rejected Gilbert's version of what he told Smith. We adopt this factual finding, as it is
not clearly erroneous. See Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir. 1994).
                                           -6-
             Mr. Smith has just said that he would testify to that he
             would be committing perjury.

             MR. SMITH: Your Honor, I also have a problem with this
             in that I do represent Mr. Gilbert in Fifth Division.

             THE COURT: Mr. Gilbert, why don't you go on and get out
             of here before you get yourself in trouble. They're not going
             to call you.

Trial Tr. at 760.

       A claim for ineffective assistance of counsel arising from a conflict of interest
does not require proof of the prejudice component of the Strickland test. Rather, the
petitioner can establish a Sixth Amendment violation if he can demonstrate that "an
actual conflict of interest adversely affected his lawyer's performance." Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). To be within Cuyler, the petitioner must prove
both that his attorney acted under an actual conflict of interest, as opposed to just a
potential one, see Dawan v. Lockhart, 31 F.3d 718, 721 (8th Cir. 1994), and that the
conflict of interest actually affected the adequacy of the representation. See Simmons
v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

        Even if we assume that an actual, as opposed to a potential, conflict of interest
existed, the petitioner cannot show that this conflict of interest actually affected the
adequacy of Mr. Smith's representation. The petitioner argues that Mr. Smith did not
do all he could to get Gilbert's testimony admitted because Mr. Smith was protecting
Gilbert's interests over the petitioner's. However, the weight of the evidence is against
this interpretation of Mr. Smith's motivations. The District Court specifically found that
a fear of prejudicing Gilbert's interests played no part in Mr. Smith's inaction. This
factual finding was supported by an evaluation of Mr. Smith's credibility in his
testimony before the District Court, and is not clearly erroneous.


                                           -7-
       Therefore, the petitioner does not receive the benefit of Cuyler, and must meet
the Strickland ineffective-assistance-of-counsel test. This he cannot do. Even if Mr.
Smith had properly argued for the admissibility of Gilbert's testimony under the hearsay
exception found in Rule 804(b)(3) of the Arkansas Rules of Evidence (declaration
against penal interest), it would not have made a difference. The Arkansas Supreme
Court held that this exception would not apply, because there were no corroborating
circumstances to indicate the trustworthiness of the statement. Johnson v. State, 321
Ark. 117, 125-26, 99 S.W.3d 940, 945 (1995). Therefore, there is no prejudice under
Strickland.

                                           IV.

      We turn to the final question the District Court certified for appeal: whether trial
counsel was ineffective during jury selection by focusing on jurors' religious
denominations and beliefs, and by failing to eliminate jurors who had recently served
on a panel in another capital case which imposed the death penalty.

       The petitioner argues that Mr. Smith's performance during voir dire was
completely ineffective. The petitioner offers expert testimony that Mr. Smith's voir dire
did not appear to have any direction or purpose. Through the testimony of two
attorneys who worked with Mr. Smith, the petitioner argues that Mr. Smith's only
discernible trial strategy was to seat an all-Catholic jury. Most seriously, the petitioner
maintains that Mr. Smith's ineffectiveness was demonstrated by the fact that he did not
question every potential juror about prior jury service. This resulted in the selection of
four jurors (one of whom was an alternate) who had imposed the death sentence the
previous week to sit on the petitioner's jury. The petitioner argues that these jurors
would be predisposed to impose the death penalty, and that the rest of the jury could
have been swayed by these three jurors.




                                           -8-
       Mr. Smith believed that the religious beliefs of Roman Catholics would make
them less likely to impose the death sentence. During the sentencing phase of the case,
he appealed to what he supposed to be the jurors' religious convictions. We assume
for present purposes that this strategy, if it was worthy of the name, was seriously
unprofessional. The assumption that every Roman Catholic is opposed to the death
penalty, we think, is an unreasonable stereotype. The difficulty with the argument is
that no prejudice can possibly be shown. We have no way of knowing who would have
gotten on the jury if counsel had adopted a different strategy during voir dire, or if these
hypothetical jurors would have been more favorable to petitioner.

       The same reasoning applies to counsel's conduct in allowing three jurors to sit
on petitioner's jury who had served on a jury that returned a death sentence the previous
week. We have no trouble agreeing that no reasonable lawyer would have allowed this
to happen, at least without making some kind of a record. There is absolutely no
showing, however, that the three jurors in question were unfair to petitioner. We are
unwilling to assume that someone who votes to sentence A to death will necessarily be
inclined to impose the same sentence on B. The jurors' previous service does show that
they were willing to impose a death sentence, but jurors absolutely unwilling to impose
such a penalty are not qualified to sit. Neither the "Catholic strategy" nor the failure
to challenge the jurors who had previously served can be shown to have had anything
to do with the actual conduct of the jury in petitioner's case. In short, there is no
reasonable likelihood that the result of petitioner's trial would have been different if
counsel had behaved more prudently.

                                            V.

      This is in many ways an unfortunate case. Petitioner has been sentenced to
death. The lawyer who tried his case may have been mentally ill at the time, failed to
press vigorously for the admission of certain defense testimony, and pursued
unprofessional strategies during jury selection. We nevertheless are convinced that the

                                            -9-
governing law requires that this conviction and sentence be upheld. We deal in specific
facts, not abstractions, and petitioner has failed to show any reasonable likelihood that
the outcome of this case would have been different even if his lawyer had conducted
himself perfectly. Accordingly, it is our duty to reject the petitioner's three contentions
on appeal, and the judgment of the District Court is affirmed.

      A true copy.

             Attest:

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




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