233 F.3d 942 (7th Cir. 2000)
Sylvia A. Lipson, Petitioner-Appellant,v.United States of America, Respondent-Appellee.
No. 98-4051
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 26, 2000Decided November 7, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 97-CV-891-WDS--William D. Stiehl, Judge.
Before Bauer, Rovner, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
Sylvia Lipson,  along with a number of other people, was charged  and convicted of conspiring to distribute crack  cocaine in violation of 21 U.S.C. sec. 846 and of  using her home to store and distribute crack  cocaine in violation of 21 U.S.C. sec. 856. She  received stiff sentences for those convictions,  of 360 months and 240 months respectively, which  run concurrently. After both her convictions and  sentences were affirmed on direct appeal, see  United States v. Smith, 26 F.3d 739 (7th Cir.  1994), she filed the present motion under 28  U.S.C. sec. 2255. (The case was remanded on other  grounds, see 26 F.3d at 760, and later affirmed  on a subsequent appeal. United States v. Smith,  No. 96-2724, 1997 WL 58804 (7th Cir. Feb. 7,  1997).)


2
Her argument for relief has shifted during the  course of these proceedings, but it is very  generally an ineffective assistance of counsel  claim based on conflict of interest. We conclude  that, under the circumstances, further  proceedings are necessary in the district court  before it will be possible for that court to  decide whether Lipson's Sixth Amendment rights  were violated because her lawyer was paid by one  of her co-defendants.


3
* The underlying basis for Lipson's claim of  ineffective assistance rests on her allegation  that her representation was tainted by a conflict  of interest because of the relationship between  her lawyer and her co-defendant, Greg Collins.  Collins was the ringleader of the conspiracy.  Lipson (whose version of the facts on these  points we accept, given the lack of an  evidentiary hearing) was an indigent single  parent. She was romantically involved with, and  habitually battered by, Collins. Eventually,  Lipson, Collins, and eight other individuals were  charged in the multi-count indictment that  produced the convictions Lipson is now trying to  challenge.


4
A careful reading of the original pro se sec.  2255 motion that Lipson filed reveals that she  raised two complaints about her representation at  trial that related to conflicts of interest.  Specifically, her motion made the following  assertions


5
This request [i.e. for an order appointing  counsel and setting an evidentiary hearing on the  sec. 2255 motion] to the court is based on the  ineffective assistance of counsel, namely, Ricky  Black. Black should not have been allowed to  represent Collins and Lipson, due to the conflict  of interest and others violations of  Constitutional and Due Process Rights. Lipson  simply did not have the 'baggage" that Collins  and the other conspriators [sic] were found  guilty or convicted.


6
Black was paid his attorneys fees by Collins who  was interested in controlling the defense in his  favor in this case.


7
Other portions of the same memorandum make it  clear that she was asserting that Collins had  selected Black to be her lawyer and that he was  paying Black, so that he could control Lipson's  representation. Her motion also raised numerous  other grounds for relief, including recanted  testimony of a witness, the government's failure  to prove that the substance was really crack, a  claim that her sentence should be reduced because  she had been abused, and so on.


8
We focus here on the ineffective assistance  claim, because this is the only one on which a  certificate of appealability has been granted.  This court granted that certificate after the  trial court denied Lipson's request, and it  identified the following issue for appeal: "Whether trial counsel was ineffective due to a  conflict in representing both petitioner and her  co-defendant, Greg Collins." We also appointed  appellate counsel for Lipson.


9
Unfortunately, the precise theory of ineffective  assistance identified in our certificate of  appealability does not appear to have been the  theory--or at least the only theory--before the  district court, as Lipson's original motion  demonstrates. Furthermore, it is clear from a  reading of the district court's opinion that the  judge understood what Lipson was trying to say.  After rejecting a number of specific instances of  ineffective counsel that Lipson had alleged, that  related to failures to investigate her claim or  to communicate with her, the court wrote the  following


10
Petitioner further alleges that counsel had a  conflict of interest. Specifically, petitioner  argues that counsel neglected her interests to  benefit a co-defendant, Gregory Collins, her boy  friend and co-defendant who paid for attorney's  fees.


11
Lipson v. United States, No. 97-CV-891-WDS, Mem.  & Order at 6 (S.D. Ill. August 26, 1998). After  reciting the standard established by Strickland  v. Washington, 466 U.S. 668 (1984), and noting  that Lipson was relying on Strickland rather than  Cuyler v. Sullivan, 446 U.S. 335 (1980) (which  would have permitted her to demonstrate an actual  conflict of interest which, if shown, would have  lightened the burden of demonstrating ineffective  assistance), the court rejected her argument with  the following explanation


12
. . . To demonstrate prejudice [under  Strickland], petitioner must demonstrate that  counsel's errors were so serious as to deprive  her of a fair trial, that is, of a trial whose  result is reliable. . . . At trial, the  government provided extensive evidence  demonstrating petitioner's deep involvement to  amply support her conviction. . . . Her counsel  certainly participated in the trial on her  behalf, not on behalf of any co-defendant. This  case involved a joint defense of a lack of  conspiracy. That commonality does not rise to the  level of conflict.


13
Similarly, the mere fact that a co-defendant  footed the bill for her defense counsel does not,  in and of itself, create a conflict of interest.  This is not a situation like that presented in  Stoia [v. United States, 109 F.3d 392 (7th Cir.  1997)] or similar conflict cases. The Court finds  that petitioner's claims of conflict are wholly  unsupported by the record.


14
Lipson, Mem. & Order at 7.


15
It is therefore clear that, until the  certificate of appealability issued from this  court, everyone knew that this case was about the  type of conflict that can arise when one  co-defendant retains, pays, and controls the  lawyer representing another co-defendant.  Unfortunately, matters became confused in part  because of our order and in part because counsel  for Lipson must not have investigated the record  very carefully. Lipson's opening brief in this  court relies solely on the proposition that the  issue was joint representation of her and  Collins. The government correctly responded in  its brief that the record clearly showed that no  such thing occurred. Lipson was represented by  attorney Richard R. Black, of East St. Louis,  Illinois, while Collins was represented by  attorney Robert H. Rice of Belleville, Illinois  at the pre-trial, trial, and appellate stages,  and attorney Burton H. Shostak of St. Louis,  Missouri, after remand and on the new appeal.  Lipson's reply brief concedes the error, in  effect, and argues that her right to effective  counsel was nonetheless infringed by the  financial arrangements between Collins and Black.


16
There is plenty of blame to spread around for  this confused state of affairs, but none of it in  our view properly goes to Lipson. In fact, the  government fully briefed the question whether  Black labored under a conflict of interest  because of the fact that Collins paid for his  services to Lipson, and Lipson's appointed  counsel also briefed that issue (albeit in the  reply brief). In these somewhat unusual  circumstances, we think it best to expand the  certificate of appealability to include the  actual conflict theory Lipson originally alleged,  the district court decided, and the parties  addressed. We hereby do so, and now turn to the  merits of this claim.

II

17
As we recently explained in Cabello v. United  States, 188 F.3d 871 (7th Cir. 1999), defendants  who wish to raise claims of ineffective  assistance of counsel based on conflicts of  interest may proceed under either of two  theories. If the defendant can establish that the  trial judge knew or should have known that a  potential conflict of interest existed, then we  presume that the defendant was prejudiced by that  conflict if the judge made no inquiry into it.  Id. at 875. If, on the other hand, the trial  judge was not put on notice of a potential  conflict, we will find prejudice "only if the  defendant demonstrates that her counsel actively  represented conflicting interests and that the  conflict adversely affected the counsel's  performance." Id., citing Cuyler, 446 U.S. 335,  350 (1980).


18
Both parties claim that Cabello entitles them  to prevail, and so we take a moment to review the  facts and holding of that case. In Cabello, the  petitioner (Maria Cabello) argued that her trial  counsel provided ineffective assistance because  he had been retained and paid by her boyfriend,  the alleged ringleader of the drug conspiracy in  which she was accused of participating. Like  Lipson, Cabello also argued that her indigence  should have put the district court on notice of  the likelihood that the boyfriend was paying for  the lawyer, when the lawyer showed up ready to  participate in the proceedings without any  request for granting Cabello IFP status.  Importantly, the court considering Cabello's sec.  2255 motion held an evidentiary hearing on her  allegations at which it heard testimony from both  Cabello and the retained lawyer. On this record,  we concluded in Cabello that there was nothing  that should have alerted the trial court to the  potential for a conflict, and that nothing in the  record indicated that Cabello had been actually  prejudiced by her lawyer's performance.


19
We see no distinction between Cabello's case  and Lipson's with respect to the first of these  points. As far as the trial court knew, Lipson  and Collins were represented by different  lawyers, and the judge specifically found in his  sec. 2255 memorandum and order that Lipson's  lawyer gave her adequate representation. Lipson  suggests that the court should have seen red  flags in the facts that she and Collins were  being tried together, that they had a romantic  relationship, and that Collins had abused her in  the past--all of which were known at the time of  trial. But we see no reason why the existence of  the romantic relationship should have triggered  the thought that Collins was paying for Lipson's  lawyer, much less why a history of abuse should  have supported such an inference. We must turn,  therefore, to the second question identified in  Cabello--whether Lipson can show an actual  conflict of interest and an adverse effect on her  representation, and, in her case, whether the  district court abused its discretion in failing  to hold a hearing to explore these points.1


20
Lipson alleged in her motion that Black allowed  Collins to dictate her legal defense because  Collins was paying his fees. If true--and because  there was no hearing we must assume that it is--  this would be enough to demonstrate an actual  conflict of interest. Stoia v. United States, 22  F.3d 766, 771 (7th Cir. 1994) ("An actual  conflict of interest results if the defense  attorney was required to make a choice advancing  his own interests to the detriment of his  client's interests." (Quotations and citation  omitted.)). See also Ciak v. United States, 59  F.3d 296, 307 (2d Cir. 1995).


21
But demonstrating the actual conflict is not  enough by itself. Lipson must also show that  Black's conflict adversely affected his  performance. She must suggest something that he  did that he should not have done, or something  that he failed to do that should have been done,  that had a negative impact on her case. To the  extent she implies that Black should have raised  the point that she was effectively under  Collins's control and thus not responsible for  her actions in furtherance of the conspiracy, our  examination of the record shows that he did bring  out this evidence. At trial, Black argued that  Lipson was an unwilling participant in the  conspiracy--the precise theory of innocence that  she is now asserting in her sec. 2255 motion. She  was entitled to put this argument before the  jury, and in fact, the jury evidently took it  quite seriously. At one point during its  deliberations, the jury sent a note to the trial  judge explaining that they felt that Lipson had  participated in the conspiracy "only because of  love, fear, and concern for her children," and  "in much the same way one would be [willing] with  a knife to their throat." The jury asked in its  note whether this concern was sufficient reason  to find a reasonable doubt, but the judge  responded without objection from Black that it  was to follow the instructions that had already  been given. See Smith, 26 F.3d at 748.


22
The record reveals that those instructions did  not include a possible duress defense. Instead,  counsel tendered an instruction defining the term  "willful" for the jury, which would have told  them that willfully means voluntarily and  intentionally acting with bad purpose either to  disobey or disregard the law. The judge rejected  that instruction, but that was not counsel's  fault. Furthermore, we note that duress is an  extremely difficult defense on which to succeed.  Counsel's decision to try to use Collins's  overbearing influence on Lipson as a way of  negating Lipson's criminal intent was a  respectable strategy, and one that might have  succeeded. See United States v. Madoch, 149 F.3d  596, 598-600 (7th Cir. 1998). See also United  States v. Fiore, 178 F.3d 917, 922 (7th Cir.  1999); United States v. Otis, 127 F.3d 829, 835  (9th Cir. 1997).


23
Her lawyers on appeal now suggest that another  adverse effect of Black's relationship with  Collins was Black's failure to pursue a plea  agreement on Lipson's behalf. If true, and if the  evidence showed that she had told him at the time  she might be interested in cooperating, that  might qualify as an adverse effect resulting from  the conflict of interest. Compare Paters v.  United States, 159 F.3d 1043, 1047-48 (7th Cir.  1998); Johnson v. Duckworth, 793 F.2d 898, 902  (7th Cir. 1986). Had there been such a plea  agreement, Lipson might have agreed to testify  against Collins in exchange for a reduced  sentence; Collins certainly had every incentive  to prevent such an outcome, and to instruct Black  not to pursue that strategy. We think it  significant that this is exactly what happened  with about half of the defendants, who testified  against those who remained and who received  lighter sentences. The presence of these other  turncoats meant that joint denial was a weak  strategy at best for Collins and Lipson. The  possibility that Lipson was trying to game the  system--first cooperating with her co-defendant  Collins in the denial strategy, and then claiming  that she might have pleaded guilty and helped the  government--seems unlikely enough on the present  facts that it should not defeat her right to a  hearing as a matter of law. The fact that the  government accepted guilty pleas from some  defendants indicates that it might have been open  to negotiating with Lipson as well.


24
Lipson herself alluded to the lost chance at a  guilty plea in her sec. 2255 motion, where she  wrote "because of Black's loyalty to Collins was  inspired to prevent Lipson from receiving any  representation at all from Black, because Black  and Collins knew or should have known if Lipson,  plead guilty, she would have to testify against,  Collins, as Black's paymaster, rather than Lipson  who was also his client." This statement appears  to be her only effort to bring this point to the  district court's attention. Nevertheless, she was  at that time proceeding pro se, and her statement  appeared in the sec. 2255 motion itself; it was  not buried in the middle of a large stack of  discovery materials or otherwise difficult to  find.

III

25
We cannot tell without an evidentiary hearing  whether Black really did fail to pursue a plea  agreement on Lipson's behalf, whether Lipson had  any interest in pleading guilty at the time, or  whether the government would have offered an  agreement to her in any event. The judgment of  the district court is therefore Reversed and the  case is Remanded for further proceedings consistent  with this opinion.



Notes:


1
 Our dissenting colleague is concerned about what  a trial judge might do to prevent the kind of  complaint that Lipson is now raising. But that  point assumes that we are criticizing the trial  judge for failing to do something at the original  trial, which is not the case. As we explain in  the text, this is not a case in which the trial  judge either knew or should have known about the  potential conflict of interest. Because it is  not, the defendant must satisfy the strict  requirements of Cuyler, 446 U.S. at 335, 350.  This kind of claim, just like many other  ineffective assistance of counsel claims that a  trial judge would similarly be unable to  anticipate, sometimes requires an exploration of  the facts at the sec. 2255 stage. We hold here  only that Lipson has alleged enough to entitle  her to such an exploration.



26
BAUER, Circuit Judge, dissenting.


27
I respectfully  dissent. The return of this case for purposes of  deciding whether the defendant would have been  amenable to a "plea agreement" (and, I take it,  whether the prosecution would have even  entertained such an agreement), or what  bargaining chips the defendant had to expend,  adds a totally new dimension to what a trial  judge should do to avoid just this sort of up-  and-down program before or after trial. Should  the district court inquire of each defense  counsel as to whether he or she attempted a "plea  bargain"? Does the court have to inquire as to  whether the government would enter into such  negotiations? And what precisely would trigger  such an inquiry; jointly indicted defendants? Or  is every defendant to be questioned?


28
The majority agrees that nothing in the record  would have alerted the trial court to inquire or  question the independence of the defendant's  representation. The defendant insisted that she  was a victim of the co-defendant's coercion and  went to trial on that issue.


29
The drowning man clutches at hairs; I don't  blame this defendant for her late defense,  attacking her attorney. I do object to requiring  an inquiry into a matter that would seem to  assume the defendant's guilt (or why "bargain"?)  or assume a lawyer's malpractice. This record  shows that the defendant was well represented and  fairly convicted. That should end the inquiry. I  would affirm.

