                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-7121


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

ERIK DEHLINGER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, Chief District
Judge. (4:06-cr-00900-TLW-1; 4:11-cv-70007-TLW)


Argued:   October 30, 2013                 Decided:   January 23, 2014


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Davis joined.      Judge Gregory wrote a separate
opinion concurring in the judgment.


ARGUED: Michael Louis Minns, THE MINNS LAW FIRM, Houston, Texas,
for Appellant.   Kevin C. Lombardi, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ashley Blair
Arnett, THE MINNS LAW FIRM, Houston, Texas; Jack Bruce Swerling,
JACK SWERLING LAW OFFICE, Columbia, South Carolina, for
Appellant.   William N. Nettles, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; Kathryn
Keneally, Assistant Attorney General, Frank P. Cihlar, Gregory
Victor Davis, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

     A    jury    convicted   Dr.     Erik   Dehlinger    of   three   counts    of

filing false income tax returns.                He received a sentence of

forty-two months imprisonment and one year of supervised release

and was ordered to pay $363,207 in restitution and a fine of

$5,000.     Dehlinger appealed his conviction and sentence, and we

affirmed.        Dehlinger then moved for habeas relief, asserting

that his trial counsel had labored under a prejudicial conflict

of interest in violation of Dehlinger’s Sixth Amendment rights.

Following an extensive evidentiary hearing, in which Dehlinger,

his trial counsel, and other witnesses testified, the district

court, in a thorough and well-reasoned opinion, denied Dehlinger

habeas    relief.      The    court    did,    however,    grant    Dehlinger     a

certificate of appealability pursuant to 28 U.S.C. § 2253.                      For

the reasons below, we affirm the judgment of the district court.



                                        I.

     Dehlinger’s Sixth Amendment challenge rests on his trial

counsel’s relationships with three individuals -- Tara LaGrand,

Gary Kuzel, and Collis Redd -- who were involved in the same

fraudulent scheme that gave rise to his convictions.                   Dehlinger

maintains     that    these    relationships       produced        conflicts     of

interest that prevented his trial counsel from calling these



                                         3
individuals as witnesses to provide exculpatory testimony at his

trial.

                                        A.

      Dehlinger’s     convictions       arose   from    his    involvement        with

Anderson’s Ark and Associates (“AAA”), which marketed programs

enabling     users   to    avoid   current      income       tax   liability      and

“recapture” taxes paid in the previous two years.                           Dehlinger

began using the AAA tax programs in 1999.                         He first became

involved with the AAA through George Benoit, an employee of an

AAA affiliate called Guardian Management, and Richard Marks, an

AAA “planner,” i.e., an AAA employee who prepared client tax

returns    and    other    documents     that   formed       the    basis    of   the

fraudulent tax schemes.         Benoit prepared Dehlinger’s 1998, 1999,

and 2000 tax returns using AAA’s tax schemes.                       Tara LaGrand,

another AAA planner, prepared Dehlinger’s 2001 and amended 2000

tax returns.       Use of the AAA programs resulted in a substantial

benefit to Dehlinger.         In the three years he used the programs,

he avoided $363,207 in tax liability and obtained annual refunds

on   his   income    taxes    despite     earning,     as    an    emergency      room

doctor, between $250,000 and $300,000 per year.

      In   2002,     the     Government      began     its    investigation         of

Dehlinger.       The Government offered Dehlinger a plea agreement,

in which he would plead guilty to one felony and cooperate with

the Government.       During plea negotiations, Robert Stientjes and

                                         4
other lawyers represented Dehlinger.             When Dehlinger rejected

the plea, the Government indicted him in August 2006.                    Then,

Dehlinger, relying on a recommendation from one of Stientjes’s

partners, retained Scott Engelhard as his trial counsel to work

along with Stientjes at trial.

     Dehlinger retained Engelhard based largely on Engelhard’s

relative success as court-appointed counsel for AAA planner Tara

LaGrand in her 2004 trial in Seattle, Washington. 1                 The jury

deadlocked    over    the    charges   against   LaGrand    in   that   trial.

Subsequently, LaGrand (still represented by Engelhard) accepted

a   guilty     plea    and    was   sentenced    to   twenty-four       months

imprisonment and one year of supervised release.                 In LaGrand’s

plea agreement, she admitted that she knowingly prepared false

loan statements and tax deductions.          This directly contradicted

her trial testimony, in which she had claimed that she did not

know the AAA programs were illegal.              LaGrand’s plea agreement

contained a waiver of the right to appeal.                 Thus, Engelhard’s

representation of LaGrand at her trial effectively ended with

her sentencing in September 2005.

     One     year    after   that   representation    ceased,     and   before

undertaking his representation of Dehlinger, Engelhard obtained

     1
        In   2002,   Engelhard  also  engaged   in  preliminary
representation discussions with two other AAA planners -- Gary
Kuzel and Collis Redd -- but later advised both of them that he
would represent only LaGrand.


                                       5
a     conflict     waiver     from    LaGrand.         In    that    waiver,     LaGrand

identified Engelhard as her “former attorney” and stated that

“[t]o the extent that there might be any apparent conflict of

interest, I do hereby waive that conflict of interest so that

Mr.     Engelhard       can     represent        Mr.        Dehlinger     at     trial.”

Accordingly, when retained by Dehlinger in the autumn of 2006,

Engelhard no longer represented LaGrand, and LaGrand had waived

any continuing duties Engelhard might have owed her.

        With Engelhard as his lead counsel, Dehlinger proceeded to

trial in 2007.         On October 15, 2007, after a four-day trial, the

jury found Dehlinger guilty of tax fraud on his 1999, 2000, and

2001 tax returns.

        A    few    weeks     after     Dehlinger’s          conviction,       Engelhard

contacted LaGrand to inform her that the lawyers for other AAA

clients      had    written    him    asking    for    her    contact     information.

Those lawyers ultimately subpoenaed LaGrand to testify before

the district court in Seattle, Washington in the prosecution of

other       AAA    clients.      Engelhard       was    appointed        to    serve    as

LaGrand’s counsel in this matter due to his familiarity with the

AAA    prosecutions.          The     district    court       in    Seattle     docketed

Engelhard’s re-appointment as LaGrand’s counsel as of November

29, 2007 –- one and one half months following the conclusion of

Dehlinger’s        trial.      Engelhard       filed    a     motion    to    quash    the

subpoena of LaGrand on Fifth Amendment grounds.                         In March 2008,

                                           6
Dehlinger fired Engelhard when he learned that Engelhard had

filed this motion on behalf of LaGrand.

                                        B.

        After    his   unsuccessful     appeal          of   his   convictions       and

sentence,       Engelhard   moved    for       habeas    relief    pursuant     to   28

U.S.C. § 2255.         The district court held a two-day evidentiary

hearing on Dehlinger’s § 2255 motion.                   During that hearing, the

court considered substantial documentary evidence and heard the

testimony of several witnesses, including Dehlinger, Engelhard,

Stientjes, and LaGrand.

        Dehlinger testified that his sole defense at trial was his

good faith reliance on the assurances of AAA planners that the

AAA tax plans were legal.            He asserted that he wanted Engelhard

to call AAA planners LaGrand, Kuzel, and Redd to testify as to

these assurances, but that Engelhard repeatedly advised him that

their testimony would be harmful rather than helpful.                        Dehlinger

contended that Engelhard’s decision not to call LaGrand, Kuzel,

or   Redd   as    witnesses   was     driven      by     a   conflict   of   interest

arising from Engelhard’s prior representation of them.

      Dehlinger also offered evidence that LaGrand had written a

novel based on Engelhard’s earlier representation of her, in

which    she    depicted    “Mr.    Scott”      (the    character    modeled     after

Engelhard) as a hero.          LaGrand herself testified at the § 2255

hearing that she was “in awe of” Engelhard.                        In addition, she

                                           7
stated that she believed Dehlinger’s tax returns were legal when

she prepared them for Dehlinger and that she told him that.                                 But

LaGrand    acknowledged         that    she    had          ultimately    pled    guilty     to

fraud in connection with her preparation of AAA returns, invoked

her Fifth     Amendment         privilege      and      refused      to   testify      at   the

trial of another AAA defendant, and had not appeared voluntarily

at the § 2255 hearing.            Although Dehlinger argued that Engelhard

represented      LaGrand    during          Dehlinger’s         trial,    he    provided     no

evidence to support this contention. 2

     Engelhard testified that he “felt pretty clear . . . before

[he] even started to represent Dr. Dehlinger” that calling AAA

planners    as    witnesses       would      not       be    the   best   way     to   present

Dehlinger’s       defense.             In     their          preliminary        discussions,

Engelhard informed Dehlinger of this assessment.                               Nevertheless,

Engelhard    explored      the     option         of    calling     AAA    planners.         He

ultimately concluded that -- given their status as convicted

felons or affiliates of AAA, which a jury had found to be a

fraudulent       scheme    --    the    risks          inherent     in    their    testimony

outweighed any benefits.


     2
       Instead, the evidence produced at the § 2255 hearing
established that Engelhard’s representation of LaGrand in her
criminal proceedings ended in September 2005, more than one year
before   he   joined   Dehlinger’s  defense   team;   Engelhard’s
appointment as LaGrand’s counsel to file the motion to quash the
subpoena in the separate proceeding occurred on November 29,
2007, several weeks after Dehlinger’s trial had concluded.


                                              8
     As to Redd and Kuzel, Engelhard testified that Dehlinger

said he had never interacted with them, and for this reason

Engelhard concluded that they were not qualified to testify on

Dehlinger’s behalf.       As to LaGrand, Engelhard testified that he

believed she would make an especially poor witness for Dehlinger

because she had testified at her trial “that she was completely

innocent but then later entered a guilty plea” and so could be

impeached    on    cross-examination.                   Engelhard      also     thought

LaGrand’s testimony would not aid Dehlinger because, since she

lacked experience in corporate and offshore matters, “a good

prosecutor could make her look like someone that nobody should

believe as a planner in complicated matters like this.”                               Co-

counsel    Stientjes    agreed    with      this       assessment   when      Engelhard

explained    his   reasoning      to   Stientjes         and   Dehlinger      prior    to

undertaking Dehlinger’s representation.

     Engelhard also opted not to call as witnesses other AAA

planners    with   whom   he   had     no       past    relationship.         Engelhard

testified that he had considered including AAA affiliate Benoit

as a witness.          He believed that Benoit would make a better

witness than LaGrand because the Government had not prosecuted

Benoit,    who   had   prepared    two      of    the    three   tax   returns     that

formed the basis of the charges against Dehlinger.                             However,

after meeting with Benoit, discussing the matter with co-counsel

Stientjes, and conferring with an attorney representing other

                                            9
AAA    clients,      Engelhard      concluded         that    the       risks     of     Benoit’s

testimony outweighed the benefits.                    He reasoned, in an e-mail he

sent   to     Dehlinger     weeks       before   his     trial,         that      “[i]f      Benoit

testified for us, all he could do is reiterate the points I can

make without him.           If he testifies and does not appear credible,

then a jury might conclude that it was not reasonable for you to

rely   upon     him.”       Engelhard      also       decided      against          calling      AAA

planner     Marks     as    a    witness    because,         in    addition         to      Marks’s

conviction,         Engelhard     was    familiar       with      Marks       from       the    2004

Seattle trial and found him to be a difficult personality.                                       In

contemporaneous         e-mails,         Engelhard       explained            all      of      these

considerations to Dehlinger.

       Instead of relying on AAA planners, Engelhard determined

that    the    best     defense     strategy      was    to       rely       on   three        other

witnesses      to    establish      Dehlinger’s        defense:              Scott     Stringer,

Bruce Burner, and Carl Charlot.                  Stringer, an expert, could and

did    opine    that       the   structure       of     the       AAA    tax      schemes       was

legitimate.          Engelhard believed that “because of [Stringer’s]

credentials and his lack of involvement with AAA programs, his

opinion about the legality of the AAA programs would carry more

weight with a jury than the testimony of an AAA Planner.”

       Burner was a former co-worker of Dehlinger who also joined

AAA.      Engelhard        believed      that    he    would      be     a   strong         witness

because “he relied upon the exact same information from AAA as

                                            10
Dr. Dehlinger for his belief that the AAA program was legal” and

Burner’s    “credibility        was    particularly         strong   because         he   had

testified as a Government witness/victim in the Seattle trial.”

Engelhard     reasoned        that      “the      Government         would       have      no

explanation for how they could treat Dr. Burner as a victim and

yet treat Dr. Dehlinger as a criminal, and that the jury would

feel compelled to acquit Dr. Dehlinger in light of Dr. Burner’s

testimony.”

     Engelhard         further    determined          that     Charlot,          a    prior

associate   of   an     IRS   agent     on    whose    assurances      Dehlinger          had

assertedly relied in becoming involved with AAA, would also make

a strong witness.         Charlot could tell “a very compelling story”

about how the agent “had conned [Charlot] into believing that

the AAA program was legal.”                  Engelhard noted that Charlot had

been a convincing witness at LaGrand’s trial in Seattle.

     On    May   16,    2012,    the    district       court    issued       a   thorough

opinion denying Dehlinger habeas relief.                      The court found that

Engelhard’s      testimony       was     consistent          with     contemporaneous

documentation     and     both    “persuasive         and    credible.” 3            In   the


     3
       The court also made credibility determinations with regard
to the testimony of co-counsel Stientjes and Dehlinger’s expert
witness.   Stientjes initially testified at the § 2255 hearing
that “up until the last minute, Dr. Dehlinger expected Tara
LaGrand . . . to testify for Dr. Dehlinger,” but he admitted on
cross-examination that he meant only that Dehlinger expected her
to be available to testify if needed.        The district court
(Continued)
                                             11
court’s view, Engelhard’s decision not to call LaGrand, Kuzel,

or Redd as witnesses at Dehlinger’s trial “was based on trial

strategy      alone    and    not    linked     to    any    potential     conflict   of

interest.”

       Thus, the court concluded that Engelhard’s “decision not to

call witnesses who would be subject to impeachment for their

prior crimes (LaGrand and Kuzel) or for their participation in a

criminal organization (Redd) was simply a reasonable strategic

decision      which    the    record    does     not       indicate    that    Dehlinger

opposed.”       The district court found that these decisions were

“part    of    an     overarching       trial    strategy,         which    [Engelhard]

thought would be most beneficial to [Dehlinger],” and that “the

record support[ed] the conclusion that Dehlinger and Stientjes

acquiesced in this trial strategy.”                        The court further found

that     “this        trial         strategy         was     applied       evenhandedly

to . . . other        [AAA]    witnesses        [with       whom   Engelhard    had   no

history of representation] which were not called for similar

strategic reasons.”

       Dehlinger noted a timely appeal.



refused to credit Stientjes’s testimony, which failed to
withstand cross-examination and which also conflicted with
Stientjes’s affidavits and contemporaneous e-mails.  The court
also gave little weight to the testimony of Dehlinger’s expert
witness who relied uncritically upon the truth of Stientjes’s
contradicted statement to reach an opinion about the ultimate
legal issues before the court.


                                           12
                                           II.

      On appeal, Dehlinger again contends that Engelhard provided

ineffective representation that prejudiced him in violation of

his Sixth Amendment rights.                Sixth Amendment protections apply

to   every   aspect     of       a    lawyer’s    representation.           Dehlinger’s

claim, however, rests entirely on one portion of Engelhard’s

representation.       Dehlinger contends that, in preparation for and

during his trial, Engelhard labored under an active conflict of

interest because of Engelhard’s history with LaGrand, Kuzel, and

Redd.     Dehlinger maintains that this conflict adversely affected

Engelhard’s performance because he should have, but did not,

call them as witnesses.

      Usually,    a     defendant         can    establish     a    Sixth     Amendment

ineffective assistance claim only by proof that (1) “counsel’s

performance    was    deficient”         and     (2) “the   deficient       performance

prejudiced the defense.”                 Strickland v. Washington, 466 U.S.

668, 687 (1984). 4           A       lawyer’s    “concurrent representation” of

multiple     clients,     however,         raises     a     “high   probability     of

      4
         In   assessing  whether   counsel’s  performance   was
constitutionally deficient, “[t]he purpose is simply to ensure
that criminal defendants receive a fair trial,” Strickland, 466
U.S. at 689, “not to enforce the Canons of Legal Ethics,”
Mickens, 535 U.S. at 176. Thus, although the rules of attorney
professional conduct may be relevant as a guide to assessing
reasonableness, “breach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guarantee
of the assistance of counsel.” Nix v. Whiteside, 475 U.S. 157,
165 (1986).


                                            13
prejudice.”        Mickens      v.    Taylor,     535    U.S.     162,      175        (2002).

Accordingly,    the        Supreme    Court      has   held     that    in        concurrent

representation        cases,     a     defendant        can     establish          a    Sixth

Amendment violation by “showing . . . defective performance, but

not    requiring      in     addition       (as    Strickland          does       in    other

ineffectiveness-of-counsel cases), a showing of probable effect

upon the outcome of trial.”             Id. at 174.

      Arguably at least, this case concerns not concurrent but

successive representation of assertedly conflicted clients.                                See

Moss v. United States, 323 F.3d 445, 456, n.15, 459 (6th Cir.

2003) (distinguishing between concurrent representation, which

is “the simultaneous representation of two or more co-defendants

by [a] single attorney” and “[s]uccessive representation,” which

occurs when a defendant’s counsel “has previously represented a

co-defendant     or     trial        witness”).         The     Supreme        Court       has

specifically     reserved       the     question        of     whether        the      second

requirement    of     Strickland       --   namely      proof     of    a     prejudicial

effect on the outcome of trial -- applies to asserted conflicts

arising from successive representation.                       See Mickens, 535 U.S.

at 175-76.     We need not determine, however, whether Engelhard’s

representation was successive and, if so, whether Dehlinger had

to    demonstrate     that     the     asserted        conflict    had        a     probable

prejudicial effect on the outcome of his trial.                               This is so

because Dehlinger has failed to make the threshold showing that

                                            14
the     asserted       conflict        rendered         Engelhard’s        performance

constitutionally deficient.

       In     order     to     establish          constitutionally          deficient

performance on the basis of an alleged conflict of interest, a

defendant, like Dehlinger, who has raised no objection at trial,

must establish that (1) “an actual conflict of interest” (2)

“adversely        affected    his     lawyer’s     performance.”           Cuyler    v.

Sullivan, 446 U.S. 335, 348 (1980).                 An actual conflict, which

requires      a    defendant     to     show   that      his     counsel    “actively

represented        conflicting        interests,”       is     the   “constitutional

predicate” for an ineffective assistance claim.                        Id. at 350.

Because “a possible conflict inheres in almost every instance of

multiple representation,” id. at 348, the mere “possibility of

conflict is insufficient to impugn a criminal conviction,” id.

at 350.

       But even when an “actual conflict” is shown, “an adverse

effect is not presumed.”              United States v. Nicholson, 475 F.3d

241,    249   (4th     Cir.    2007)     (“Nicholson         I”).     Instead,      the

defendant     must    separately       prove     that    the    conflict     adversely

affected his counsel’s performance by satisfying the three-prong

test set forth in Mickens v. Taylor:

       First, the [defendant] must identify a plausible
       alternative defense strategy or tactic that his
       defense counsel might have pursued.       Second, the
       [defendant] must show that the alternative strategy or
       tactic was objectively reasonable under the facts of

                                          15
      the case known to the attorney at the time of the
      attorney’s tactical decision. . . .     Finally, the
      [defendant] must establish that the defense counsel’s
      failure to pursue that strategy or tactic was linked
      to the actual conflict.

240 F.3d 348, 361 (4th Cir. 2001) (en banc) (citation omitted),

aff’d without consideration of this point 535 U.S. 162 (2002).

The   requirements     for    establishing      an    actual    conflict    and   an

adverse     effect     on     the    lawyer’s        performance     “are     often

intertwined,     making      the    factual    analyses    of    them   overlap.”

United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991).                        The

defendant must make both showings to obtain relief.                     Sullivan,

445 U.S. at 349-50.

      “Conflicts claims present mixed questions of law and fact

that we review de novo.”             Mickens, 240 F.3d at 360 (internal

quotation     marks   omitted).        “When   the    [district]     court    [has]

conducted an evidentiary hearing prior to ruling, we review its

findings of fact for clear error.”              United States v. Nicholson,

611 F.3d 191, 205 (4th Cir. 2010) (“Nicholson II”).                        “Because

much of the adverse effect inquiry is heavily fact dependent, we

believe appropriate deference should be given to the findings of

the district court.”         Mickens, 240 F.3d at 360.             “When findings

are   based    on     determinations      regarding       the    credibility      of

witnesses,” as they were in the case at hand, “we give even

greater deference to the trial court’s findings.”                   United States



                                        16
v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (internal quotation

marks omitted).

       With these principles in mind, we turn to the question of

whether the district court erred in finding Dehlinger did not

establish    that    a   conflict    of        interest    rendered   Engelhard’s

representation constitutionally deficient.



                                         III.

                                          A.

       The district court based its denial of Dehlinger’s request

for § 2255 relief on its determination that -- even assuming

arguendo    that    an    actual    conflict        of     interest   existed      --

Dehlinger failed to satisfy the third prong of Mickens.                           That

is, the district court focused on whether Engelhard’s decision

to   call   witnesses     other    than    LaGrand,        Kuzel,   and    Redd   was

“linked” to the asserted conflict, or instead was the product of

a legitimate trial strategy.             We too will frame our discussion

around this third prong.

       Dehlinger, as the defendant, bears the burden of proving

the requisite “link.”           Mickens, 240 F.3d at 361.                 To satisfy

this    burden,     he   must     show     Engelhard’s       decision      was    not

objectively reasonable.         See Stephens v. Branker, 570 F.3d 198,

212 (4th Cir. 2009)(finding that because the defendant failed to

establish    a    link   between    an    alleged        conflict   and    counsel’s

                                          17
failure       to   pursue     a    defense       the     defendant      “fail[ed]         to

demonstrate that the trial decisions made by his counsel were

anything      other    than     tactical    judgments”).          “If    a    reasonable

attorney would have adopted the same trial strategy absent a

conflict, [a defendant] cannot show [his lawyer’s] performance

was   adversely       affected     by    that    conflict.”       Caban       v.    United

States, 281 F.3d 778, 786 (8th Cir. 2002).

                                            B.

        The district court carefully reviewed the evidence and made

critical credibility determinations.                   After doing so, the court

found that Engelhard’s decision not to call LaGrand, Kuzel, or

Redd as witnesses amounted to nothing more than a reasonable

strategic decision, which he made in good faith at the outset,

applied evenhandedly to all potential witnesses, and adhered to

consistently       throughout      trial.        Ample    evidence      supports         this

finding.

      With regard to Kuzel and Redd, Dehlinger had told Engelhard

that he had no meaningful interaction with them.                             In fact, he

barely    knew     them   and     they   had     not   prepared    any       of    his    tax

returns.      Thus, it seems unlikely that either of them would have

been permitted to testify as to Dehlinger’s assertedly innocent

state    of    mind.        Even    assuming      that    they    would       have       been

permitted to testify, Dehlinger has failed to demonstrate that

they could have provided testimony not elicited from the defense

                                            18
witnesses who did testify on his behalf at trial.                            See Eisemann

v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005) (finding no adverse

effect because nothing in the record “provide[d] the slightest

indication as to what [the client-witness] would have said if

called or even that he would have said anything at all”).

      As   to    LaGrand,     who    is    the    primary      focus    of    Dehlinger’s

challenge,       the     record      offers       substantial      support      for    the

district court’s finding that Engelhard’s decision not to call

her was driven by strategic concerns rather than any conflict.

The   testimony        and   affidavits         from    Engelhard,      Stientjes,     and

Dehlinger        himself,      as      well        as     contemporaneous            e-mail

communications,          establish        that         Engelhard       and     co-counsel

Stientjes       believed      that    the       risks     of    LaGrand’s       testimony

outweighed       the     benefits,        and     informed      Dehlinger       of     this

strategy.         For    instance,        Dehlinger       e-mailed      Engelhard       and

Stientjes on September 20, 2007 (three weeks prior to trial) to

ask   about      the    witness      list.        After    inquiring         about    other

potential       witnesses,     Dehlinger         asked    Engelhard      and    Stientjes

whether they “still think that Mar[ks] and/or LaGrand would be

too   risky.”          (emphasis      added).            Stientjes       responded       to

Dehlinger’s e-mail informing him that “[Engelhard] and I have

talked about the benefits [and] burdens of each witness. . . .

I think we have a great defense with our core witnesses.                                 I

think we only have risk in calling any more.”

                                             19
      This evidence thus belies Dehlinger’s claim that Engelhard

led him to believe up until the eve of trial that LaGrand would

be called as a witness.        Instead, the evidence establishes just

the   opposite.       First,    Engelhard        told     Dehlinger       prior   to

undertaking   his   representation         that,    in    his    expert    opinion,

LaGrand’s   testimony   would       not   help     Dehlinger,      and    Dehlinger

chose to retain Engelhard with this knowledge. 5                 Then, Engelhard

and   co-counsel    adhered    to   this    strategy       and   kept     Dehlinger

apprised of it throughout trial preparations.

      As the district court found, the strategic considerations

that led Engelhard to conclude that calling LaGrand would be

“too risky” were objectively reasonable.                 Not only was LaGrand a

convicted felon; she had also pled guilty to tax fraud involving

the very same fraudulent organization that provided the basis


      5
       Dehlinger acknowledged at the § 2255 hearing that prior to
agreeing to represent him, Engelhard stated that he did not
think it would be a good strategic decision to call LaGrand, and
“that if that’s the way [Dehlinger] wanted to go, [he] really
should go with some other lawyer.”    Dehlinger argues that this
statement shows Engelhard placed LaGrand’s interests above
Dehlinger’s by threatening not to represent Dehlinger unless he
agreed not to call LaGrand as a witness. Even if the statement
could   be   construed   as  evidence   of   a  conflict   during
representation, as Dehlinger maintains, it could also be
construed as evidence that Engelhard simply provided his
prospective client (Dehlinger) with the frank professional
judgment that LaGrand would make a poor witness and that calling
her would not be the best strategy for presenting Dehlinger’s
defense. Given the deference we must give the district court’s
findings, we cannot hold that the district court erred in so
finding.


                                      20
for    the    charges        against    Dehlinger.        Moreover,     LaGrand   had    a

history      of     conflicting        statements      under   oath    about   this    tax

fraud.        This conflict made it impossible to predict what she

would      say    on     the   stand    and    rendered      any   testimony   from    her

vulnerable          to     blistering         cross-examination.           Furthermore,

because LaGrand played no part in Dehlinger’s decision to follow

the AAA tax “plan” and did not prepare most of the tax returns

that       formed      the     basis    for     Dehlinger’s        indictment,    it    is

difficult to see that anything helpful to Dehlinger would be

gained from her testimony that was not obtained from the more

reliable         witnesses      Engelhard       used    to     establish   Dehlinger’s

defense.

       Even more than Kuzel and Redd, LaGrand was a witness with

very little upside and a substantial downside -- involvement in

the same tax fraud as Dehlinger and, in her case, initial denial

of her involvement and then admission of and imprisonment for

it.        No adverse effect results from a trial lawyer’s decision

not to call witnesses whose testimony would be cumulative or

potentially damaging to a defendant’s case.                           See Winfield v.

Roper, 460 F.3d 1026, 1033-34 (8th Cir. 2006) (citing cases). 6


       6
       The evidence produced at the § 2255 hearing also strongly
suggests that LaGrand, even if called, would not have agreed to
testify at Dehlinger’s trial.   At the time of that trial, she
was on supervised release and limitations had not run on charges
the Government waived as part of her plea bargain.    At her own
(Continued)
                                               21
     Dehlinger’s contentions that LaGrand, Kuzel, or Redd would

have provided exculpatory testimony at his trial rest on nothing

more than conjecture.                One can only speculate as to what they

would have said and what effect this testimony might have had on

the jury.     Evaluation of the testimony of possible witnesses is

precisely     the    sort     of      strategic          decision        entrusted         to   the

professional judgment of trial counsel.                             The record provides

abundant evidence that, as the district court found, Engelhard’s

decision    not     to   call    LaGrand,         Kuzel,       Redd     or     any   other      AAA

planner was an objectively reasonable one, which was based on

Engelhard’s       familiarity         with      the    facts       of   the    case    and       his

thorough    investigation            of   the     best      options      available         to   his

client.



                                             IV.

     The     Sixth       Amendment         does        not     provide         a     basis      for

disappointed      clients       to    launch         after-the-fact          attacks       on    the

objectively       reasonable          strategic         decisions         of       their     trial

attorneys.        The    district         court       did    not   err    in       finding      that

Dehlinger    failed      to   establish          that       Engelhard's        representation




trial, she had claimed total innocence; when pleading guilty,
she admitted to knowingly engaging in fraud.      Any further
testimony exposed her to charges of perjury and breach of her
plea agreement.


                                                22
was   anything   other   than   objectively   reasonable.   For   the

foregoing reasons, the judgment of the district court is

                                                            AFFIRMED.




                                   23
GREGORY, Circuit Judge, concurring in the judgment:

      I concur in the judgment of the Court.           While the evidence

demonstrates that Engelhard’s decisions bear some relationship

to   the   fact   that   he   represented   LaGrand,   Dehlinger   fails   to

prove by a preponderance of the evidence that Engelhard based

his decisions on his loyalty to LaGrand.                The absence of a

causal link between the conflict of interests and Engelhard’s

decisions is the basis for denying relief.




                                      24
