                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0620n.06
                            Filed: August 23, 2006

                                             No. 04-4063

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ALVIN CORDELL,                                     )
                                                   )
        Petitioner-Appellant,                      )
                                                   )    ON APPEAL FROM THE UNITED
v.                                                 )    STATES DISTRICT COURT FOR THE
                                                   )    SOUTHERN DISTRICT OF OHIO
UNITED STATES OF AMERICA,                          )
                                                   )
        Respondent-Appellee.                       )


        Before: RYAN and COOK, Circuit Judges; FORESTER, Senior District Judge.*


        COOK, Circuit Judge. Alvin Cordell appeals the district court’s order denying his Motion

to Vacate Sentence filed pursuant to 28 U.S.C. § 2255, in which he claimed that the court in his drug

trafficking trial erroneously denied his claim of ineffective assistance of counsel. Two government

witnesses were former clients of Cordell’s trial counsel, and Cordell argues that the resulting conflict

of interest adversely affected his counsel’s cross-examination of them. Because we do not believe

that the alleged conflict affected the adequacy of his representation, we affirm.


                                                  I.




        *
       The Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 04-4063
Cordell v. United States


       A narcotics investigation resulted in the arrest of Cordell and two of his subordinates,

Michael Bowens and Darrin Clack. At various points before and after the arrests, each of the three

was represented by Attorney Kenneth Lawson. Lawson represented Bowens and Clack in replevin

actions to recover cash and property seized by law enforcement officials in the course of the

investigation. Lawson entered not-guilty pleas for Bowens and Cordell in their criminal cases. And

Lawson continued to represent Cordell throughout his trial. Prior to Cordell’s trial, Lawson learned

that Bowens was planning to cooperate with the government and testify against Cordell, prompting

Lawson immediately to terminate his representation. Also by the time of Cordell’s trial, the

substantive matters in Bowens’s and Clack’s replevin actions had already been decided.


       Evidence at trial placed Cordell at the center of the alleged drug trafficking. Bowens

testified that Cordell arranged drug shipments and distribution; Clack testified to delivering crack

cocaine to Cordell in Cincinnati; and physical evidence (including a large amount of cash) and a

recording of an incriminating conversation between Cordell and Bowens further supported Cordell’s

guilt. Lawson generally attacked Bowens’s and Clack’s credibility on cross-examination, but, as

Cordell now notes, Lawson neglected to target the pair’s prior, contrary testimony in the replevin

actions. Cordell did not object at trial to Lawson’s continuing representation.


       The jury convicted Cordell of one count of conspiracy to distribute and possess with intent

to distribute marijuana and cocaine and one count of attempt to distribute and possess with intent

to distribute crack cocaine. The district court sentenced Cordell—who had two prior felony drug



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convictions—to serve the mandatory term of life imprisonment for each count of conviction. This

court affirmed, and the district court denied his 28 U.S.C. § 2255 motion after conducting an

evidentiary hearing. Cordell now appeals the denial of his § 2255 motion.


                                                  II.


        Strickland v. Washington, 466 U.S. 668, 687-88 (1984), articulates the general standard to

demonstrate the ineffective assistance of counsel.        First, Cordell must show that counsel’s

performance was objectively unreasonable. Id. Second, he must show that such deficient

performance resulted in prejudice that “warrant[s] setting aside the judgment . . . .” Id. at 691. “As

a general matter, a defendant alleging a Sixth Amendment violation must demonstrate ‘a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting Strickland, 466 U.S. at 694).


        A lesser degree of prejudice need be shown by a § 2255 movant who, having failed to object

previously, claims ineffective assistance on the ground that his counsel represented simultaneously

conflicting interests at trial. Id. at 167-68. In that case, the movant “must demonstrate that ‘a

conflict of interest actually affected the adequacy of his representation,’” Id. at 168 (quoting Cuyler

v. Sullivan, 446 U.S. 335, 348-49 (1980)), but need not show that but for the conflict the outcome

of the trial would have been different. The conflict must be “real or genuine, as opposed to []

hypothetical,” Moss v. United States, 323 F.3d 445, 467 n.23 (6th Cir. 2003), and must have

adversely affected “counsel[’s] . . . basic strategic decisions.” Id. at 466 (quotations omitted). Then,

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Cordell v. United States


according to the “Sullivan presumption” (or “prophylaxis”), courts presume that the outcome of the

litigation would have been different in the absence of the conflict.


       It is however unsettled whether the Sullivan presumption applies in the context of

“successive representation” (where a petitioner alleges ineffective assistance on the basis of his

counsel’s previous representation of a co-defendant or trial witness) as well in the context of

simultaneous representation. See Mickens, 535 U.S. at 176 (“[W]e do not rule upon the need for the

Sullivan prophylaxis in cases of successive representation. Whether Sullivan should be extended

to such cases remains, as far as the jurisprudence of this Court is concerned, an open question.”).

In Moss, this court applied the presumption in a case where the attorney represented two parties

“during the same proceedings” and regarding “identical facts,” but it suggested in dicta that the

presumption would not apply in the “traditional” successive representation context, where the

representations were only “substantially related.” 323 F.3d at 461-62. Accordingly, in a more

traditional case of successive representation where the representations did not occur in the same

proceeding and where the factual bases of the representations were not identical, this court refused

to apply the Sullivan presumption. Gillard v. Mitchell, 445 F.3d 883, 891 (6th Cir. 2006)

(“Simultaneous and successive representation differ materially because in the latter, the attorney is

no longer beholden to the former client. Because the Supreme Court has not held that successive

representation gives rise to a presumption of prejudice, the Sullivan presumption does not control

this habeas case.”) (citing Mickens, 535 U.S. at 176-78). Gillard would be definitive here if the

court did not offer the alternative reasoning that the petitioner failed even to show that the

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“successive representation adversely affected his trial [counsel’s] performance.” Id. In other words,

the court held that petitioner would lose with or without the benefit of the Sullivan presumption.


        We follow the same course here. Cordell argues that the Sullivan presumption should apply

because Lawson’s representation of him overlapped with Lawson’s representations of Bowens and

Clack in the replevin actions. The government contends that the presumption should not apply

because the representations were successive (because the replevin actions had effectively concluded

by the time of Cordell’s trial) and though “[t]he state civil proceedings were not entirely unrelated

to Cordell’s criminal proceeding . . . , [the] replevin action[s] necessarily involved different issues

and much more limited facts.” We address neither of the government’s arguments because we hold

that Cordell cannot prevail even with the benefit of the Sullivan presumption.


        As noted, Sullivan requires a petitioner to demonstrate that a conflict adversely affected his

representation. Mickens, 535 U.S. at 168; Sullivan, 446 U.S. at 348. To establish a conflict of

interest, Cordell must “point to specific instances in the record to suggest an . . . impairment of his

interests. . . . There is no violation where the conflict is . . . merely hypothetical.” United States v.

Mays, 77 F.3d 906, 908 (6th Cir. 1996) (quotation omitted).


        Cordell asserts that Lawson’s prior representations conflicted with his interests at trial, yet

he has not pointed in his briefs or at oral argument to specific facts that indicate a real—as opposed

to a hypothetical—conflict of interest. Cordell speculates that Lawson learned confidential

information from Bowens and Clack that may have aided his defense. See Lordi v. Ishee, 384 F.3d

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Cordell v. United States


189, 193 (6th Cir. 2004) (“Lordi’s case before this court is based upon pure speculation that [the

attorney] may have known something by implication from his law partner . . . .”). Lawson, of

course, did not represent Clack or Bowens at Cordell’s trial, and the civil forfeiture proceedings

were effectively over before Lawson took on defending Cordell. Moreover, Cordell’s failure to

object at trial to Lawson’s previous representations boosts our assessment that no conflict existed.

He simply does not show “instances in the record” suggesting an “impairment of his interests.”


       Assuming for argument that a conflict did exist, we then examine whether such a conflict

caused an adverse effect on counsel’s basic trial strategy choices. McFarland v. Yukins, 356 F.3d

688, 705 (6th Cir. 2004). Typically, in a successive representation case, the “fear” is that an actual

conflict will adversely affect trial counsel’s performance because “the lawyer will fail to cross-

examine the former client rigorously for fear of revealing or misusing confidential information.”

Moss, 323 F.3d at 460. Cordell contends that the conflict prevented Lawson from highlighting,

through cross-examination, contradictions between the testimony Bowens and Clack gave in their

civil replevin actions and their testimony at Cordell’s trial. Specifically, Cordell notes that Bowens

testified differently in the two proceedings about the source of the cash that was seized from him and

that Clack gave different explanations regarding the reason for his trip to Cincinnati.


       We find Cordell’s argument without merit because Lawson’s failure to point out those

particular discrepancies cannot be shown to constitute an alteration of his “basic strategic decisions.”

Moss, 323 F.3d at 466. Lawson vigorously cross-examined both Bowens and Clack and sought to

impeach their credibility. He questioned Bowens about the veracity of his prior statements made
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Cordell v. United States


to the grand jury and highlighted for the jury the benefits Bowens garnered from cooperating with

the government. He also explored Bowens’s drug trafficking history to impeach his veracity and

credibility. As for Clack, Lawson led him to concede on cross-examination that he had lied under

oath, and Lawson also cast doubt on Clack’s credibility by inquiring about the reduced sentence

Clack would receive for his testimony. Cf. United States v. Infante, 404 F.3d 376, 390 (5th Cir.

2005) (noting that conflicted defense counsel did not test the credibility of prosecution witnesses

by questioning them about plea agreements or hopes of receiving a reduced sentence). Lawson

effectively questioned these witnesses’ credibility; Lawson’s failure to point out their additional

inconsistencies was not an error of constitutional magnitude.


        Cordell also contends that Lawson’s counsel was ineffective because the attorney-client

privilege prevented Lawson from impeaching Bowens and Clack on the basis of the arguments they

made in the prior civil actions. Such arguments, however, were in the public record, and thus not

subject to privilege.   Accordingly, privilege cannot validly be raised to impugn Lawson’s

performance.


       In sum, any alleged conflict of interest did not adversely affect Lawson’s performance. We

find as well that Cordell has failed to demonstrate that Lawson’s choice not to question Bowens and

Clack about the civil actions “was not part of a legitimate strategy, judged under [a] deferential

review of counsel’s performance.” McFarland, 356 F.3d at 706.




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Cordell v. United States


         Finally, we reject Cordell’s argument that the trial court had a duty to inquire about a

possible conflict of interest but failed to do so. See, e.g., Holloway v. Arkansas, 435 U.S. 475, 483-

84 (1978) (reversing conviction because trial court refused to consider defense counsel’s repeated

requests for appointment of separate counsel in joint representation case based on conflict of interest

among clients); Harris v. Carter, 337 F.3d 758, 763 (6th Cir. 2003) (same). Even in the more

suspect contexts of multiple or joint representations, “‘absent special circumstances, . . . trial courts

may assume either that multiple representation entails no conflict or that the lawyer and his clients

knowingly accept such risk of conflicts as may exist.’” Moss, 323 F.3d at 471 (quoting Sullivan,

446 U.S. at 347) (alteration in original). Here, the trial court had no duty to inquire about a potential

conflict of interest because it neither knew nor reasonably should have known that a particular

conflict existed. Mickens, 535 U.S. at 168-69.


                                                  III.


        For the foregoing reasons, we affirm the district court’s order denying Cordell’s Motion for

Vacation of Conviction pursuant to 28 U.S.C. § 2255.




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