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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 27, 2013

                                       No. 11-30171                        Lyle W. Cayce
                                                                                Clerk

DANNY RAY LEE

                                                  Petitioner–Appellant
v.

BURL CAIN, Warden, Louisiana State Penitentiary

                                                  Respondent–Appellee



               Appeal from the United States District Court for the
                          Western District of Louisiana
                                No. 607:CV-339


Before JONES, GARZA, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
       Petitioner–Appellant Danny Lee was found guilty of the 1994 murder of
Sheila Tibblas. Lee appealed his conviction, claiming his trial attorney had
labored under a conflict of interest because he had represented a key witness
against Lee during a preliminary hearing in the same case. On remand, the
state trial court granted Lee a new trial, but was reversed in a short opinion by
the state appellate court. After exhausting his post-conviction remedies in state
court, Lee brought this habeas action claiming a violation of his Sixth


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Amendment right to conflict-free counsel. The federal district court, adopting
the recommendation of the magistrate judge assigned to the petition, found that
the state appellate court did not unreasonably apply the governing law and
therefore denied habeas relief. Lee then appealed to this court. We find that the
state appellate court did not come to unreasonable conclusions when it
determined that (1) this case is governed by Cuyler v. Sullivan, and that (2) trial
counsel’s conflict of interest did not adversely affect Lee’s trial. Lee has therefore
failed to meet his burden under 28 U.S.C. § 2254(d)(1), and we AFFIRM the
district court’s denial of habeas relief.
                         I. FACTUAL BACKGROUND
A.    The Events Preceding Trial
      On April 5, 1995, Petitioner Danny Ray Lee was found guilty of second
degree murder in the death of Sheila Tibblas. See State v. Lee, 788 So. 2d 452,
453–54 (La. Ct. App. 2001). According to testimony at Lee’s trial, in August
1994, Lee and Tibblas set out on a road trip from Oklahoma with a married
couple, Davey and Sherry Coslow (“Coslow” and “Sherry,” respectively),
intending to visit every state in the country. At a stop in a sugarcane field in St.
Mary Parish, Louisiana, Tibblas was murdered, allegedly because she was
thought to have given information about Lee’s involvement in drug dealing to
police in Oklahoma. According to Coslow’s testimony, Lee told Coslow when
they were in the field that he was planning to kill Tibblas. Coslow testified that
Lee brought Tibblas from the car into the middle of the field and began choking
her. Lee then asked Coslow for his knife and told Coslow to cut Tibblas’s throat.
When Coslow could not bring himself to do so, Lee took the knife from Coslow
and stabbed her in the throat himself. Tibblas’s body was then covered with a
piece of tin and left in the field.
      The three remaining members of the party continued on their trip,
financing their travels with forged checks belonging to Tibblas. They eventually

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returned to Oklahoma. After their return, and still using Tibblas’s car, the
group was pulled over for a traffic violation. Lee was arrested for driving
without a license, and Coslow was arrested for marijuana possession. According
to later testimony, Coslow told the police that marijuana found in the car
belonged to him, even though it belonged to his wife. Sherry Coslow and another
woman in the car at the time of the traffic stop were released.
      Shortly afterward, Sherry contacted police about Tibblas’s murder. At her
suggestion, police spoke with Coslow, who told the police Lee had murdered
Tibblas, and directed them to Tibblas’s body. Sherry, Lee, and Coslow were all
arrested for the murder.
B.    The Preliminary Hearing
      On November 9, 1994, Judge Thomas Bienvenu oversaw a preliminary
hearing to perpetuate the testimony of Sherry Coslow in Louisiana district court.
At the hearing, Davey Coslow was represented by a public defender, Craig
Colwart. A public defender from the same public defender’s office, Gary LeGros,
represented Lee.
      In later testimony, Colwart claimed that as part of preparation for the
hearing, he asked Coslow about whether anyone in the group had used drugs at
any point during the trip, to which Coslow responded that they had. According
to Coslow, Colwart suggested that if asked about his drug use in court, Coslow
should “downplay” it, though Colwart later disputed this account. They also
discussed possible sentences in the event Coslow pleaded guilty to accessory
after the fact. It appears Colwart talked to Coslow for no longer than an hour
before the preliminary hearing.
      At the hearing, Sherry Coslow testified that she saw Lee strangle Tibblas
and heard him ask Davey Coslow for his knife. She also admitted, though, that
she turned away as the murder occurred. A detective testified that she had told



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him earlier that she saw her husband with the knife, but did not see who
stabbed Tibblas.
       Judge Bienvenu determined that although the evidence was stronger
against Lee, there was probable cause enough to indict both Lee and Davey
Coslow on murder charges. At that point, LeGros moved to sever the two cases,
on the theory that “[his] client [Lee] and Mr. Coslow ha[d] somewhat
antagonistic defenses.” Colwart agreed, “on the basis of statements made by
[my] client [Coslow].” Judge Bienvenu immediately granted the severance
motion.
       On November 28, 1994, a grand jury indicted Lee on a charge of second
degree murder; Lee was arraigned and pleaded not guilty. Meanwhile, Coslow
agreed to testify against Lee at Lee’s trial in return for a reduced charge of
manslaughter.
C.     Lee’s Trial
       Lee’s trial began on April 3, 1995, with Judge Paul deMahy presiding.
Sometime after the preliminary hearing, but before trial, Coslow and Lee
switched lawyers, so that Colwart now represented Lee and LeGros represented
Coslow in his ongoing plea bargaining.1 At trial, Coslow testified that Lee had
choked, stabbed, and ultimately killed Tibblas. His testimony was corroborated
by Sherry Coslow and other physical evidence. Lee did not testify at trial.
       On cross-examination, Colwart asked Coslow, his former client, a number
of questions that appear to have been aimed at undermining Coslow’s credibility.
Colwart asked whether Coslow had agreed to testify in return for more lenient


       1
         According to Colwart’s later testimony, it was always the intention of the Sixteenth
District Indigent Defender Board, where both Colwart and LeGros were attorneys, that
Colwart would represent whomever the District Attorney sought to prosecute for the murder,
and LeGros would represent the other defendant in negotiating a deal with the district
attorney for his testimony. Before the preliminary hearing, it seemed more likely Coslow was
responsible for the murder, but after the hearing, suspicion shifted to Lee. Colwart therefore
took over Lee’s representation at trial.

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treatment from the state. Coslow denied that he had (and indeed at the time of
Lee’s trial, Coslow did not yet have a plea bargain in writing). Colwart elicited
an admission that Coslow had lied about the marijuana found in the car in order
to protect his wife. At one point, Colwart asked Coslow if it was he who had in
fact killed Tibblas, to which Coslow answered, “No, sir.”
      Colwart also cross-examined Coslow about drug use during the trip:
      COLWART:             How many of you four were doing drugs on this trip?
      COSLOW:              Me and my wife wasn’t, sir.
      COLWART:             You weren’t smoking marijuana?
      COSLOW:              On the trip?
      COLWART:             Yes.
      COSLOW:              No, sir.
A short time later, Coslow admitted, “We smoked some weed, some marijuana”
in Oklahoma.2 He testified that he never saw Lee or Tibblas with crystal meth.
Colwart did not ask specifically about whether or not there had been drug use
at the time of the murder.
      Over the course of the trial, Coslow made statements that clearly indicated
he had previously been represented by Colwart:
      COLWART:             So, you did have a discussion, a discussion
                           about being charged with and being prosecuted
                           for accessory after the fact [that] was detailed
                           enough that you would, you know you were
                           informed of, that the potential sentence for
                           accessory after the fact is five years, correct?
      COSLOW:              Yes, you told me that when you were my
                           attorney. (emphasis added).

      2
        It is unclear from the trial transcript whether Coslow meant they smoked marijuana
before or after they began the road trip.

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Shortly afterward, he repeated, “[T]he only thing that I was informed about
accessory after the fact charge was when you was my attorney and you told me
the most it carried was five and then I asked my new attorney how much time
did it carry and he said five . . . .”
      On April 5, 1995, Lee was convicted of second degree murder by a
unanimous jury. He was later given the mandatory sentence of life at hard labor
without parole. Approximately three months after Lee’s trial, Coslow pleaded
guilty to manslaughter and received a sentence of six years at hard labor.
D.    Post-Conviction Events and Procedural Background
      1.     Lee’s Early Appeals
      On December 8, 1995, with Colwart still acting as his lawyer, Lee filed a
Motion for Extension of Time to File Appellant’s Brief. The extension was
granted, but Lee’s counsel nonetheless neglected to file a brief with the
Louisiana First Circuit Court of Appeals, and the appeal was deemed
abandoned. Between 1996 and 1999, Lee filed multiple pro se applications for
post-conviction relief in the Sixteenth Judicial District Court, the First Circuit
Court of Appeals, and the Louisiana Supreme Court, each of which was denied.
      In 1999, through new counsel James E. Boren, Lee filed applications for
post-conviction relief seeking out-of-time appeals in the Sixteenth Judicial
District Court and the Louisiana Supreme Court. Lee’s application in the
Louisiana Supreme Court was denied, but the application in the District Court
was granted, and he was thus able to file an out-of-time appeal in the First
Circuit.
      Lee’s appeal in the First Circuit alleged two Assignments of Error: first,
erroneous jury instruction and ineffective assistance of counsel based on failure
to object to the jury instructions, and second, ineffective assistance of counsel




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based on alleged conflict of interest.3 The First Circuit “conditionally affirmed”
Lee’s conviction, but remanded to the District Court for an evidentiary hearing
on the issue of trial counsel’s conflict of interest, stating that if the District Court
found merit to those claims, it should grant Lee a new trial.4
       2.       The Evidentiary Hearings and the New Trial Order
       Two evidentiary hearings were held in the Sixteenth Judicial District
Court, both presided over by Judge deMahy. The first, held on January 16,
2002, was convened to determine if Lee had waived his right to conflict-free
counsel before his trial. After hearing testimony from Colwart, LeGros, and Lee,
Judge deMahy determined that there had been no waiver, and a second hearing
on the issue of whether Colwart had labored under an actual conflict of interest
was scheduled.
       This second evidentiary hearing was held on June 24, 2003. At this
hearing, Boren, Lee’s new counsel, introduced into evidence a letter that Davey
Coslow had written while serving his sentence. The letter stated that Coslow,
not Lee, had stabbed Tibblas, and that Coslow had lied in his testimony at Lee’s
trial. Coslow testified that he had shown the letter to a private investigator, and
that he had told the investigator that he “believed some of [his letter] was true.”5
He also testified that he wrote the letter “to try to help [his] brother out,”6 and
that he did not believe writing it would create any adverse legal consequences
for himself because of the plea deal he had made.



       3
       Lee claims he was unaware of his right to conflict-free counsel and the possibility that
Colwart labored under a conflict of interest until Boren became involved in his case.
       4
        At an unspecified date around this time, Lee filed yet another appeal for writs to the
Louisiana Supreme Court, which was denied.
       5
           The investigator, Gordon Bulla, was hired by Boren to ask Coslow about the letter.
       6
           Coslow and Lee share the same father. Lee and Sherry Coslow share the same
mother.

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      Evidence was also presented on the issue of the group’s drug use during
the trip and what information Colwart received as part of his representation of
Coslow. Coslow testified that he told Colwart “[they] were doing drugs . . . [but]
didn’t specify on which ones,” and that Colwart told him to answer “no or just
ignore the question” if asked about drug use on the stand. At one point, Coslow
clarified that he was not “for sure” whether it was Colwart or LeGros he spoke
to about drug use. It is unclear what Colwart remembers about what Coslow
said to him about drug use. At one point, Colwart could not recall what
specifically Coslow said about drug use at the time of the offense, but later in the
hearing he testified that he was “sure” that Coslow told him “he was doing drugs
during the trip.” Colwart additionally testified that his general sense from all
that was said before and during trial was that the group had run out of drugs
and money by the time they reached the sugarcane field. Colwart denied ever
telling Coslow to “downplay or minimize the amount of drugs that he had
consumed prior to the killing of Sheila Tiblis [sic].”
      Judge deMahy denied Lee’s motion for a new trial on the basis of newly
discovered evidence (Coslow’s letter). However, with respect to the question of
whether Colwart’s conflict of interest adversely affected Lee’s trial, Judge
deMahy found that a new trial was warranted:
            I have reviewed the transcript of the trial . . . some of
            which deals with the cross examination of Davy [sic]
            Coslow regarding the use of drugs. Initially, he denies
            using any drugs, then he admits they smoked
            Marijuana. He denies even knowing that there was any
            Crank or Crystal Meth, which is the two names for the
            same drug, were present at any time during the trip.
            The testimony today by Mr. Coslow is that he told Mr.
            Colwart about them using Marijuana and Crystal Meth.
            And Mr. Colwart, although his memory was somewhat
            sketchy, seemed to recall that he received that
            information from Mr. Coslow regarding the use of
            Marijuana and Crystal Meth. And, since he received

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            that information as Mr. Coslow’s attorney, he could not
            confront Mr. Coslow with a prior inconsistent statement
            regarding the use of Crystal Meth or Crank during the
            trip, or at the time of the murder. This would, of course,
            challenge the credibility of Mr. Coslow at trial. And the
            two witnesses, eyewitnesses, more or less, against Mr.
            Lee were Mr. Coslow and Mrs. Coslow, and the primary
            witness being Mr. Coslow who testified that he saw the
            entire incident. A successful attack on the credibility of
            Mr. Coslow could affect the outcome of the case. So, I’m
            going to find that Mr. Colwart’s conflict had an adverse
            impact on the representation of Danny Lee and will
            grant his motion for a new trial. (emphasis added).

      The State applied for a writ of certiorari in the First Circuit, asking the
court to reverse, inter alia, the grant of a new trial. The First Circuit granted
the writ in an opinion that, in its entirety, read:
            WRIT GRANTED. The trial court erred in granting
            Lee’s motion for a new trial. Considering the evidence
            produced at the evidentiary hearings and the cross-
            examination of Davey Coslow at Danny Lee’s trial, it
            does not appear that Craig Colwart’s representation of
            Lee and his previous representation of Coslow adversely
            affected his performance at Lee’s trial. See Cuyler v.
            Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64
            L.Ed.2d 333 (1980) (typeface in original).

Lee appealed to the Louisiana Supreme Court, which denied his appeal without
opinion. Lee again filed a number of motions asking for state post-conviction
relief, all of which were denied.
      On February 23, 2007, Lee filed a petition in federal district court seeking
a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming actual innocence,
as well as a violation of his Sixth Amendment right to effective assistance of
counsel because of counsel’s conflict of interest. The court, adopting the report
and recommendation of the magistrate judge, initially declared his application
time-barred, but the Fifth Circuit vacated that decision and remanded to the

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district court in light of the Supreme Court’s opinion in Jiminez v. Quarterman,
129 S. Ct. 681 (2009), which overruled the case law barring Lee’s application.
      3.     The Federal District Court’s Decision
      Magistrate Judge Patrick Hanna reviewed Lee’s habeas application on
remand. In his petition, Lee argued that he was denied effective assistance of
counsel for three principal reasons: (1) his trial counsel failed to adequately
prepare for trial, (2) his trial counsel failed to discover exculpatory evidence
before trial, and (3) a conflict of interest existed when his trial counsel previously
represented a key witness in the same matter. The magistrate judge found the
first two of these claims procedurally defaulted for not having been raised during
state proceedings, but considered the merits of the third. He concluded that the
First Circuit had properly disposed of Lee’s claims: it was correct in its
determination that Sullivan, not Holloway, provides the governing rule for Lee’s
case, and it was justified in finding that “any conflict of interest that might have
existed did not adversely affect Lee’s counsel’s performance at trial.” The
recommendation noted that “[a]lthough Colwart did not directly confront Coslow
with any prior inconsistent statement concerning drug use during the trip,
Colwart did address drug use in his cross-examination, and he brought to light
other evidence undermining both Davey Coslow’s and Sherry Coslow’s
credibility.” Magistrate Judge Hanna therefore recommended that Lee’s petition
be denied and dismissed his claims with prejudice.
      On February 8, 2011, the federal district court for the Western District of
Louisiana adopted Magistrate Judge Hanna’s report and recommendation, and
denied Lee’s subsequent application for a certificate of appealability (COA). Lee
filed an application for a COA in the Fifth Circuit on April 26, 2011. The Fifth
Circuit granted the COA with respect to two issues: (1) whether the district court
misapplied § 2254(e)(1) in its consideration of the fact findings of the state
courts; and (2) whether Holloway v. Arkansas, 435 U.S. 475, 490 (1978), or

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Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), governs Lee’s case, and if the
district court correctly applied Sullivan, whether Lee demonstrated that an
actual conflict of interest adversely affected his lawyer’s performance.
                                II. DISCUSSION
A.     Standard of Review and AEDPA Deference
       In reviewing grants or denials of the writ of habeas corpus, this court
reviews de novo the district court’s disposition of pure issues of law and mixed
issues of law and fact. See Guy v. Cockrell, 343 F.3d 348, 351 (5th Cir. 2003)
Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001). We review its factual
determinations for clear error. Valdez, 274 F.3d at 941.
      The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) governs
a federal habeas court’s review of a state court’s adjudication of the merits of a
state prisoner’s claims. 28 U.S.C. § 2254(d). When faced with a silent or
ambiguous state habeas decision, such as the Louisiana Supreme Court’s decision
in this case, the federal habeas court must “look through” to the last clear state
decision on the matter to determine which state court decision to review. Jackson
v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999). In this case, the last reasoned
opinion was the First Circuit’s, and so it is that opinion to which this Court
applies AEDPA’s standards.
      Congress enacted AEDPA in order to address perceived abuses in the then-
existing habeas system, limit the ability of prisoners to delay justice by filing
frivolous claims, and respect the outcomes of state fact finding and law
application. See Michael Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating
that AEDPA’s purpose was to “further comity, finality, and federalism,” and
highlighting the importance of “limit[ing] the scope of federal intrusion into state
criminal adjudications and . . . safeguard[ing] the States’ interest in the integrity
of their criminal and collateral proceedings”); Day v. McDonough, 547 U.S. 198,
205–06 (2006) (AEDPA was passed to “promote[] judicial efficiency and

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conservation of judicial resources . . . and lend[] finality to state court judgments
within a reasonable time”). In furtherance of these policies, “AEDPA . . . imposes
a highly deferential standard for evaluating state-court rulings and demands that
state-court decisions be given the benefit of the doubt.” Renico v. Lett, 130 S. Ct.
1855, 1862 (2010) (citations and internal quotation marks omitted).
      1.    Deference to state conclusions of law
      AEDPA provides separate standards of review for a state court’s
adjudications of pure issues of law or mixed issues of law and fact, on the one
hand, and its adjudications of issues of fact, on the other. With respect to issues
of law and mixed issues of law and fact, the relevant provision is § 2254(d)(1),
which prohibits a federal court from granting habeas relief unless the state
court’s denial “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1); Valdez, 274 F.3d at 946 (“We review questions
of law and mixed questions of law and fact under the ‘contrary to’ and
‘unreasonable application’ prong of 28 U.S.C. § 2254(d).”). Questions about the
effectiveness of counsel, including those that involve conflict-of-interest claims,
are mixed questions of law and fact. See Strickland v. Washington, 466 U.S. 668,
698 (1984); United States v. Infante, 404 F.3d 376 (5th Cir. 2005) (“The
determinations whether a conflict existed and whether the conflict had an
adverse effect are mixed questions of law and fact.”). Therefore, § 2254(d)(1)
applies to the state appellate court’s decision to follow Sullivan rather than
Holloway in Lee’s case, as well as its determination that Lee has not shown
adverse effect, as Sullivan requires.
      2.    Deference to state fact findings
      AEDPA contains two separate provisions that govern a federal habeas
court’s review of state-court findings of fact. Section 2254(d)(2) provides that a
prisoner is entitled to relief if the state adjudication of the claim “resulted in a

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decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
The other provision, § 2254(e)(1), reads: “[A] determination of a factual issue
made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).
Courts have long struggled with how to reconcile and read together the two
provisions governing federal review of state court fact findings. See Justin F.
Marceau, Deference and Doubt: The Interaction of AEDPA §2254(d)(2) and (e)(1),
82 Tul. L. Rev. 385, 387–88 (2007). However, for the reasons below, this Court
declines to use this case to resolve the debate.
      The parties contend that we must resolve the issue of whether there are
any state-court fact findings left to review when, as here, a state trial court is
reversed by a state appeals court in an opinion accompanied by little reasoning.
Lee argues that the facts as found by the state trial court, specifically the
determination that Colwart failed to confront Coslow about a prior inconsistent
statement about drug use during cross-examination, remain intact on federal
habeas review. The State urges us to instead hold that the First Circuit’s
reversal of the district court’s grant of a new trial means that the district court’s
fact findings were vitiated, and the federal district court should therefore have
engaged in its own fact finding exercise. However, because we find that the First
Circuit did not unreasonably apply the relevant legal standard even if the facts
are construed in the light most favorable to Lee, we decline to reach the issue of
what facts are or are not operative on appeal in this case.
B.    Whether Sullivan or Holloway Applies
      A federal habeas court may reject a state court’s determination of law if (1)
the determination was “contrary to” federal law as established through Supreme
Court precedent, or (2) it “involved an unreasonable application” of that law. 28
U.S.C. § 2254(d)(1). A state court’s decision is “contrary to” clearly established
federal law if it “applies a rule that contradicts the governing law set forth in [the

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Supreme Court’s] cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [the Court’s] precedent.” Terry
Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The “unreasonable application”
clause, on the other hand, “requires the state court decision to be more than
incorrect or erroneous.   [It] must be objectively unreasonable.” Lockyer v.
Andrade, 538 U.S. 63, 75 (2003) (citation omitted).
      There are two determinations of law at issue in this case, and the First
Circuit reached a reasonable conclusion with respect to each of them. The first
issue is what standard to apply in assessing whether Lee should be granted a
new trial on the grounds that his counsel was conflicted, a question the parties
have disputed since the conflict of interest was recognized. Lee argues that the
court should have applied the standard developed in Holloway v. Arkansas, 435
U.S. 475 (1978), which requires automatic reversal where counsel is forced to
represent codefendants over his timely objection to the joint representation. 435
U.S. at 485–88; see also Mickens v. Taylor, 535 U.S. 162, 168 (2002). The State
argues that Cuyler v. Sullivan, 446 U.S. 335 (1980), instead provides the relevant
standard. 446 U.S. at 348–49. Sullivan requires that the petitioner show not
only that counsel was conflicted, but that the conflict adversely affected the
adequacy of his representation. Id.; see also United States v. Infante, 404 F.3d
376, 390–92 (5th Cir. 2005).     Every court that has reviewed Lee’s claims,
including the state appellate court, whose decision we review, has determined
that Sullivan, and not Holloway, provides the operative standard. We agree.
      Holloway applies only if an attorney has been made to provide conflicted
counsel over his own objection. See Mickens, 535 U.S. at 168 (“Holloway . . .
creates an automatic reversal rule only where defense counsel is forced to
represent codefendants over his timely objection, unless the trial court has
determined that there is no conflict.”) (emphasis added); cf. Holloway, 435 U.S.

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at 488 (“[W]henever a trial court improperly requires joint representation over
timely objection reversal is automatic.”); Salts v. Epps, 676 F.3d 468 (5th Cir.
2012) (“Holloway’s rule—not [Sullivan’s] actual-conflict standard—controls the
[petitioners’] joint-representation claim in this case because the [petitioners,
through their lawyers,] timely objected to their joint representation.”).
       Lee argues that because Coslow mentioned Colwart’s previously having
been his lawyer, the trial judge was on notice of a possible conflict of interest, and
this qualifies his case for treatment under Holloway, as opposed to Sullivan.
Lee’s argument is without merit. The Supreme Court has made clear that trial
counsel must actively object to a conflict of interest in order for Holloway’s
automatic reversal rule to apply. See Mickens, 535 U.S. at 172. Because Colwart
did not object to his own representation of Lee, Holloway does not apply. Even
if we were to accept (and we do not) Lee’s implied argument that Coslow’s
reference during cross-examination to Colwart’s previous representation
constitutes “timely objection,” the state court’s failure to so conclude was
certainly not contrary to any existing Supreme Court precedent or otherwise
“objectively unreasonable.” Cf. Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(“The question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.”). Therefore, Lee is not entitled
to relief with respect to this aspect of his petition.
C.     The First Circuit’s application of Sullivan
      The second legal determination Lee challenges in his petition is the First
Circuit’s conclusion that Colwart’s conflict of interest did not adversely affect his
performance at Lee’s trial. Under Sullivan, a petitioner must show both that
there was an “actual conflict of interest,” and that the conflict “adversely affected”
the adequacy of trial counsel’s representation. Sullivan, 446 U.S. at 348. The



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                                    No. 11-30171

State does not argue that Colwart’s conflict was not an “actual conflict,” leaving
only the issue of adverse effect in dispute.
      The focus of the adverse effect standard “is upon whether the actual conflict
burdening counsel’s performance had an actual and adverse effect on counsel’s
performance.” Perillo v. Johnson, 205 F.3d 775, 806 (5th Cir. 2000). More
specifically, “[a]n adverse effect on counsel’s performance may be shown with
evidence that counsel’s judgment was actually fettered by concern over the effect
of certain trial decisions on other clients.” Id. at 807 (internal quotation marks
omitted). Adverse effect can be shown with evidence that some plausible defense
strategy or tactic could have been used, but was not, because of the attorney’s
actual conflict of interest. Id. at 781. Factors the court may consider include: “(1)
whether the attorney has confidential information that is helpful to one client but
harmful to the other client; (2) whether and how closely related is the subject
matter of the multiple representations; (3) how close in time the multiple
representations are; and (4) whether the prior representation has been
unambiguously terminated.” United States v. Burns, 526 F.3d 852, 856 (5th Cir.
2008).
      Lee’s basic contention is that Colwart failed during cross-examination to
confront Coslow with statements he had made to Colwart before the preliminary
hearing about the group’s drug use at the time of the murder, and that this failure
was necessitated by Colwart’s duty to keep conversations with his former client
confidential. Had Colwart confronted Coslow with evidence of those statements
at trial, Lee argues, Coslow’s credibility would have been irreparably undermined,
and his testimony about Lee’s role in the murder called into serious question.
      This theory, in essence, was also the basis for the state trial court’s new trial
order. It is unclear whether the First Circuit reversed that new trial order
because it disagreed with the state trial court’s “finding” that a prior inconsistent
statement even existed, or instead because it disagreed with the conclusion that

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                                    No. 11-30171

failure to confront Coslow with the prior inconsistent statement amounted to
adverse effect. The federal district court adopted the magistrate judge’s finding
that Colwart believed “from his discussions with Coslow during his brief
representation of Coslow, that Coslow and the others had used drugs on the trip
but had run out drugs by the time they got to Louisiana.” In other words,
according to the federal district court, Colwart did not believe there was a prior
inconsistent statement he could have asked about even if he had been inclined to
do so. The various courts’ conflicting conclusions about the events leading up to
the murder and the content of Coslow’s private conversations with Colwart are the
basis for the parties’ dispute about the level of deference to accord the state trial
court’s fact findings. However, we find that even if the facts are viewed in the
light most favorable to Lee, i.e., we accept that Colwart knew there existed a prior
inconsistent statement with which he could have confronted Coslow, the First
Circuit’s legal determination that Lee did not show adverse effect is not
unreasonable. Because the First Circuit was not unreasonable in its application
of the prevailing law no matter which facts are adopted, we decline to resolve the
issue of which fact findings remained in effect during Lee’s federal habeas
proceedings and how much deference AEDPA requires they be given.
      In reviewing a state court’s decision on the merits, “a habeas court must
determine what arguments or theories could have supported the state court’s
decision; and then it must ask whether fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision
of this court.” Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011) (alterations and
internal quotation marks omitted); see also Harrington v. Richter, 131 S. Ct. 770,
784 (2011) (noting that to satisfy the “unreasonable application” prong of
§ 2254(d)(1), a petitioner must show that “there was no reasonable basis” for the
state court’s decision); Matthew Seligman, Harrington’s Wake: Unanswered
Questions on AEDPA’s Application to Summary Dispositions, 64 Stan. L. Rev. 469,

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                                     No. 11-30171

497 (2012) (“Under the Harrington Court’s methodology, federal habeas courts
confronted with [an unreasoned state-court decision on the merits] must survey
all the possible justifications for the decision, and attribute to the state court the
most defensible.”). Therefore, if there is any credible basis for the First Circuit’s
legal determination that Colwart’s conflict of interest did not adversely affect his
representation, Lee’s claim fails.
      Even if this Court assumes the Louisiana trial court was correct in its
factual determination that Colwart knew of a prior inconsistent statement Coslow
had made, the First Circuit was not unreasonable in its disposition of the adverse
effect issue, a mixed question of law and fact that we review under § 2254(d)(1).
While it is true that Lee need not show prejudice “in the sense that the outcome
of the proceeding would have been different if it were not for [the] attorney’s
conflict of interest” in order to prevail, Infante, 404 F.3d at 391, he still must show
that the reason Colwart did not refer to the prior inconsistent statement was his
conflict of interest, see Perillo, 205 F.3d at 807 (“[The defendant] must show, not
only that [his attorney’s] performance was compromised, but that the
compromises revealed in the record were generated by the actual conflict between
[the two clients’] interests.”).        In this case, there is plentiful—and
undisputed—evidence that strongly indicates Colwart bore no residual loyalty to
Coslow, but was instead a zealous advocate for Lee.            Colwart aggressively
questioned Coslow about his motives for testifying, about his willingness to lie to
law enforcement to shield his wife from possible prosecution, and about his lack
of first-hand knowledge of the events of the murder. He questioned Coslow about
the group’s drug use on the trip, and explicitly asked Coslow if he had killed
Tibblas. Even Lee concedes that Coslow’s credibility “was on shaky ground,” a
circumstance that was due in part to Colwart’s willingness to ask about Coslow’s
negotiations with the state for a lighter sentence. Whatever further damage
confronting Coslow with a prior inconsistent statement would have done to his

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                                    No. 11-30171

credibility, it is clear that Colwart’s failure to do so was not the result of his
judgment having been “actually fettered by concern over the effect of certain trial
decisions on other clients.” Perillo, 205 F.3d at 807. The First Circuit could easily
have concluded that the causal link between Colwart’s conflict of interest and his
decision not to raise the issue of Coslow’s prior inconsistent statement was not
adequately established. There thus exists a credible basis on which the First
Circuit could reach its resolution of the adverse effect issue. Adhering the
requirements of § 2254(d)(1), we give deference to this decision, and likewise reject
Lee’s claims.
                               III. CONCLUSION
      Colwart’s conduct did not affect the quality of his representation to the
degree required by AEDPA. For the foregoing reasons, we AFFIRM the decision
of the district court.




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