                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3791
                                     ___________

James Koste,                              *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri
Dave Dormire,                             *
                                          *
             Appellee.                    *
                                     ___________

                               Submitted: June 11, 2001

                                    Filed: August 13, 2001
                                     ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HALL,1 Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       James Koste appeals from a final judgment entered in the United States District
Court for the Eastern District of Missouri denying his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. See Koste v. Dormire, No. 4:98CV1709 (E.D.
Mo. Sept. 25, 2000) (memorandum and order) (hereinafter "slip op."). For reversal,
Koste argues that (1) he is entitled to habeas corpus relief because the state trial court
failed to adequately inquire into his allegation that his trial attorney had a conflict of

      1
       The Honorable Cynthia Holcomb Hall, United States Senior Circuit Judge for
the Ninth Circuit, sitting by designation.
interest and (2) assuming he was required to show prejudice resulting from his
attorney's conflict of interest, he met that burden. Koste also argues that (3) he was
entitled to an evidentiary hearing in the district court on his claim that his trial attorney
was ineffective for failing to obtain a mental examination prior to his guilty pleas. For
the reasons stated below, we reverse the judgment of the district court and remand this
case to the district court for proceedings consistent with this opinion.

       The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. § 2253(a). The notice of appeal was timely filed
pursuant to Fed. R. App. P. 4(a).

                                       Background

       On May 24, 1994, Koste was charged by indictment in the City of St. Louis with
five identical counts of sodomy with a child under the age of fourteen in violation of
Mo. Rev. Stat. § 566.060; all the counts involved the same child. On the day of trial,
pursuant to a plea agreement, Koste entered a plea of guilty to all five charges. The
plea agreement provided that he would plead guilty and the court would sentence him
to 30 years without parole on each of the five counts, such sentences to run
concurrently with each other and with the life sentence he was then serving.2

       At Koste's plea hearing in the Circuit Court of the City of St. Louis, the trial
judge asked if Koste authorized his attorney to say he was pleading guilty, to which
Koste said he did. See Transcript of Nov. 13, 1995, proceedings in Circuit Court of
the City of St. Louis (hereinafter "Tr.") at 2. The trial judge further asked if Koste was
pleading guilty because he was guilty, and Koste said he was "taking the 5th," but that


       2
       On September 26, 1992, in the Circuit Court of the City of St. Louis, Koste was
found guilty of rape of a child less than fourteen years of age and received a life
sentence.

                                            -2-
he would plead guilty. See id. When Koste repeated that he would not say whether
he was guilty, the trial judge responded that Koste would have to go to trial and face
consecutive time. The trial judge then asked Koste if he was voluntarily entering his
plea of guilty, and Koste responded "yes." See id. at 3-4. The trial judge also asked
Koste if he was "crazy." Koste responded by stating "not that I know of" and that he
knew what he was doing. See id. at 4. The trial judge then accepted Koste's guilty
plea.

        After this verbal exchange, the prosecutor summarized for the court what the
evidence would show as to each count if the matter were tried. In particular, the
prosecutor advised the court that the prosecution would prove, for each count, that
Koste engaged in the described deviant sexual acts between January 1, 1994, and
February 24, 1994. Koste admitted to the court that he had committed the acts
described by the prosecutor. See id. at 6-7. The trial judge then found that Koste was
a persistent sexual offender because he had previously been convicted of or plead
guilty to a felony of forcible rape of a child under fourteen for which crime he was
currently serving a sentence of life imprisonment. The trial judge found Koste guilty
on all five counts, sentencing him to concurrent terms of 30 years without probation
or parole, pursuant to the terms of his plea agreement. See id. at 7-11. Koste did not
file a direct appeal from his conviction and sentence.

      After Koste was sentenced, the trial judge asked him if his attorney represented
him throughout the proceedings, and Koste responded "yes," but he said that he did not
have sufficient time to discuss his case with the attorney; he said the attorney visited
him one time in jail for five minutes. The trial judge said that he, meaning himself,
"stayed here last night to afford [Koste] an opportunity to spend two or three hours with
[his] lawyer; that [the trial judge] brought [Koste] to court early so [Koste] could be
with [his] lawyer." Id. at 13. Koste acknowledged that his lawyer visited him in jail
once and that his attorney did not make any threats or promises to encourage him to
enter a plea of guilty, but Koste also said that the attorney did not do everything he

                                          -3-
asked the attorney to do and that he was not satisfied with his attorney. See id. at 13-
14. The attorney acknowledged that she and Koste had a dispute as to what witnesses
would be called and told the court that she gave an investigator instructions regarding
witnesses. The trial judge responded that he was "not going to get involved with trial
technique strategy" and that he "saw [the attorney's] investigator in the court room and
that the attorney was giving him some directions." Id. at 14.

      Koste further informed the trial judge that his attorney had a conflict of interest
due to an appeal in another case. See id. The trial judge responded as follows:

      The court found that none exist[s]. The court found that we selected this
      jury, we let you listen to the tape, the video tape and it was not raised
      until this morning that I was informed that you had a suit against them, but
      you had filed a PCR . . . . The court is not going to try that PCR as
      being no legal suit against [the attorney] and the court herein denies that.

Id. at 14-15. The trial judge then asked Koste if he had anything else to say, and Koste
responded that he felt his "due process rights [had] been denied." Id. at 15. The trial
judge then found that Koste had "no probable cause for ineffective assistance of
counsel," stating that his attorney had "tried a number of cases in [that] division," had
"been trying cases for a number of years," and that "the court [had] always found her
to be a diligent attorney." Id. at 16.

STATE POST-CONVICTION RELIEF PROCEEDINGS

      Koste filed a pro se motion to vacate his conviction pursuant to Missouri Rules
of Criminal Procedure, Rule 24.035.3 Counsel was appointed and filed an amended


      3
          Rule 24.035 provides in relevant part that:

      (a) Nature of Remedy - Rules of Civil Procedure Apply. A person

                                            -4-
motion alleging, among other things, that Koste's guilty plea was involuntary, that he
was denied effective assistance of counsel because his trial counsel failed to conduct
a thorough investigation and failed to seek a psychiatric examination of him, and that
his rights were violated during the trial court's examination of him pursuant to Missouri
Rules of Criminal Procedure, Rule 29.07(b)(4). Rule 29.07(b)(4) requires that a
sentencing court, at the conclusion of final sentencing, examine a defendant on the
record regarding the assistance of counsel received. Koste also requested a hearing on
these issues. The motion court denied Koste's Rule 24.035 motion and further denied
his request for a hearing. See Koste v. State, PCR No. 3473 (Mo. Cir. Ct. May 3,
1996).

       Koste appealed the denial of his motion for post-conviction relief to the Missouri
Court of Appeals. The Missouri appellate court held that the judgment of the motion
court was based on findings of fact that were not clearly erroneous and that there were
no errors of law, and affirmed the judgment of the motion court. See Koste v. State,
No. 71817 (Mo. Ct. App. Jan. 13, 1998) (order). In regard to Koste's contention that
the motion court erred in failing to conduct a hearing to determine whether his trial
counsel refused to pursue a mental examination, the Missouri appellate court concluded
that Koste's counsel had no absolute or routine duty to initiate an independent
investigation of Koste's mental condition. See Koste v. State, No. 71817, slip op. at
7 (Mo. Ct. App. Jan. 13, 1998) (memorandum supplementing order). In regard to



      convicted of a felony on a plea of guilty . . . who claims that the
      conviction or sentence imposed violates the constitution and laws of this
      state or the constitution of the United States, including claims of
      ineffective assistance of trial and appellate counsel . . . may seek relief
      in the sentencing court pursuant to the provision of Rule 24.035.
      . . . .
      (h) Hearing Not Required, When. If the court shall determine the motion
      and the files and records of the case conclusively show that the movant
      is entitled to no relief, a hearing shall not be held.

                                          -5-
Koste's allegation that his guilty plea was not voluntary, the Missouri appellate court
said that because Koste failed to include in his motion for post-conviction relief
contentions made in support of this position that he was intimidated by the trial judge
into pleading guilty and that the trial judge continued with the plea hearing after Koste
announced his desire to go to trial, consideration of these matters was procedurally
barred. The Missouri appellate court considered Koste's contention that his plea was
not voluntary due to ineffective assistance of counsel. However, although Koste
asserted that he had ineffective assistance of counsel because his trial attorney (1) did
not spend sufficient time with him to discuss his case, (2) disagreed with him regarding
witnesses, and (3) had a conflict of interest, the state appellate court only considered
the claim regarding the time spent with Koste because the other two allegations were
procedurally waived as they were not included in the motion for post-conviction relief.
See id. at 4-5. The Missouri appellate court concluded that the motion court did not
clearly err in denying Koste an evidentiary hearing on these matters regarding the
sufficiency of the time Koste's counsel spent with him. See id. at 6.

       In regard to Koste's separate claim that the trial judge erred in refusing to
conduct a hearing to determine whether his counsel had a conflict of interest, the
Missouri appellate court found that Koste "failed to allege facts showing how his
defense was prejudiced and his plea was rendered involuntary due to the alleged
actions or inactions of his trial counsel because of the alleged conflict of interest." Id.
at 7. The Missouri appellate court further found that Koste only argued "that the alleged
conflict caused his counsel to inadequately prepare for trial and also deprived him of
conflict-free advice" and concluded that Koste's conclusory assertions did not show
how the matters of which he complained "resulted in prejudice to his interests." Id.
Therefore, the state appellate court concluded that the motion court did not clearly err
in denying Koste an evidentiary hearing on his allegation that the trial judge erred in
refusing to conduct a hearing to determine whether Koste's trial counsel had a conflict
of interest. The state appellate court reached this conclusion based on its finding that
the "record conclusively establishe[d] that [Koste's] plea was knowingly and voluntarily

                                           -6-
entered and that he did not meet his initial burden of pleading facts, not conclusions,
not refuted by the record which entitle him to relief." Id. at 7-8.

FEDERAL HABEAS PROCEEDINGS

        Having exhausted his available state remedies, Koste filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court alleging, among
other things, that he was denied his right to effective assistance of counsel. The district
court denied the petition. In regard to Koste's claim that his trial counsel was
ineffective for failing to pursue a mental evaluation, the district court concluded that the
motion court's decision was not contrary to clearly established federal law nor was it
based on an unreasonable determination of the facts in light of the evidence presented.
See slip op. at 6-8. In regard to Koste's claim that he received ineffective assistance
of trial counsel because his counsel was acting under a conflict of interest during his
guilty plea proceedings, the district court cited the decision of the Missouri Court of
Appeals stating that Koste made "conclusory assertions [which did] not show how the
matters complained of resulted in prejudice to his interests." Id. at 9. Citing 28 U.S.C.
§ 2254(d)(2), the district court then concluded that the state appellate court's decision
was not based on an unreasonable determination of the facts in light of the evidence
presented. See id. at 6-8.4 This appeal followed.

       4
       The district court also determined that Koste's claim that he was denied due
process because of the failure of the motion court to conduct an evidentiary hearing on
his Rule 24.035 motion, was not cognizable in a federal habeas petition because 28
U.S.C. § 2254 only authorizes federal courts to review the constitutionality of a state
criminal conviction, not infirmities in a state post-conviction relief proceeding. See
Koste v. Dormire, No. 4:98CV1709JCH, slip op. at 3 (E.D. Mo. Sept. 25, 2000)
(memorandum and order). The district court further agreed with the state appellate
court that Koste's claims regarding the voluntariness of his plea were procedurally
barred because he did not raise them on direct appeal or in his post-conviction motion
and the defense was not excused by cause or prejudice. See id. at 4. In regard to
Koste's claims that his plea was not voluntary due to fear of going to trial with

                                            -7-
                                       Discussion

       In the first and second of his claims certified for appeal, Koste argues that the
district court erred in denying his petition because the state trial court failed to
adequately inquire into his trial counsel's conflict of interest when a potential conflict
was brought to the court's attention and that, assuming that he was required to show
prejudice by virtue of his trial attorney's conflict of interest, he sustained this burden.
Koste also argues, for the third of his claims certified for appeal, that he is entitled to
an evidentiary hearing in the district court on his claim that his trial attorney was
ineffective for failing to obtain a mental examination prior to his entering a guilty plea.



       We first consider the standard of review applicable to the issues raised by Koste
on appeal to this court. In Williams v. Taylor, 529 U.S. 363, 412-13 (2000)
(Williams), the United States Supreme Court set forth the requirements for federal
courts to grant writs of habeas corpus to state prisoners under the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"). Justice O'Connor,
writing for the majority, explained that:


      § 2254(d)(1) places a new constraint on the power of a federal habeas
      court to grant a state prisoner's application for a writ of habeas corpus
      with respect to claims adjudicated on the merits in state court. Under §
      2254(d)(1), the writ may issue only if one of the following two conditions
      is satisfied -- the state-court adjudication resulted in a decision that
      (1) "was contrary to . . . clearly established Federal law, as determined
      by the Supreme Court of the United States," or (2) "involved an
      unreasonable application of . . . clearly established Federal law, as



unprepared counsel the district court concluded that the motion court's decision was not
based on an unreasonable determination of the facts in light of the evidence. See id.
at 6.

                                           -8-
      determined by the Supreme Court of the United States." Under the
      "contrary to" clause, a federal habeas court may grant the writ if the state
      court arrives at a conclusion opposite to that reached by this Court on a
      question of law or if the state court decides a case differently than this
      Court has on a set of materially indistinguishable facts. Under the
      "unreasonable application" clause, a federal habeas court may grant the
      writ if the state court identifies the correct governing legal principle from
      this Court's decisions but unreasonably applies that principle to the facts
      of the prisoner's case.

Williams, 529 U.S. 412-13. This "standard of review under the AEDPA is a
heightened one" because Williams, 529 U.S. 411, further holds that a "federal habeas
court may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable."
Copeland v. Washington, 232 F.3d 969, 973 (8th Cir. 2000) (Copeland), cert. denied,
121 S. Ct. 1968 (2001).

       In Williams, 529 U.S. at 405-06, Justice O'Connor, writing for the majority,
further explained that a state-court decision is "contrary to" the Court's clearly
established precedent if the state court "applies a rule that contradicts the governing law
set forth in [Supreme Court] cases" or if it "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." Justice O'Connor rejected an "expansive"
interpretation of § 2254(d)(1) which would permit a federal court to grant relief in cases
where "a state court's application of clearly established federal law was incorrect." Id.
at 407.

In regard to the meaning of the "unreasonable application of" prong of § 2254(d)(1),
Justice O'Connor held that a state court decision can be an unreasonable application of
Supreme Court precedent where it " identifies the correct governing legal rule from


                                           -9-
[Supreme Court] cases but unreasonably applies it to the facts of a the particular state
prisoner's case" or where it "unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply." Id. In summary,
"when a state-court decision unreasonably applies the law of [the Supreme Court] to
the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that
the state-court decision falls within that provision's 'unreasonable application' clause."
Id. at 409. "To the extent that 'inferior' federal courts [including this court] have
decided factually similar cases, reference to those decisions is appropriate in assessing
the reasonableness of the state court's resolution of the disputed issue." Atley v. Ault,
191 F.3d 865, 871 (8th Cir. 1999) (Atley).

       In analyzing the "contrary to" prong of § 2254(d)(1), we must consider whether
the facts of the matter before us are materially indistinguishable from a Supreme Court
case, and if they are, whether the state courts arrived at a result different from the
Supreme Court's precedent. We, therefore, first consider whether there are Supreme
Court decisions addressing the issue raised by Koste that the trial court failed to
adequately inquire into his assertion that his trial counsel had a conflict of interest, thus
denying him effective assistance of counsel. The Sixth Amendment provides that "[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defense." U.S. Const. amend. VI. The Supreme Court has
recognized that this right guaranteed by the Sixth Amendment includes the "right to
representation that is free from conflicts of interest." Atley, 191 F.3d at 869 (citing
Wood, 450 U.S. at 271) (other citations omitted). "When burdened by a conflict of
interest, counsel 'breaches the duty of loyalty, perhaps the most basic of counsel's
duties' and, therefore, fails to provide effective assistance of counsel." Id. (citing
Strickland v. Washington, 466 U.S. 668, 692 (1984) (Strickland)). In Atley, 191 F.3d
at 870, this court held that Cuyler v. Sullivan, 446 U.S. 335, 346 (1980), requires that,
when a defendant makes an objection at or before trial to counsel's representation, the
trial court has an obligation under Holloway v. Arkansas, 435 U.S. 475 (1978)

                                            -10-
(Holloway), "to determine whether an actual conflict exists." This court further held
that Holloway required automatic reversal of a conviction "when a trial court fails to
discharge its constitutional duty to determine whether the defendant is receiving
assistance of counsel unburdened by a conflict of interest" because prejudice is
presumed under such circumstances. Atley, 191 F.3d at 870 (citing Holloway, 435
U.S. at 489; Wood v. Georgia, 450 U.S. 261, 272 n.18 (1981) (Wood)).

       Although Holloway and Cuyler each involved an alleged conflict of interest due
to counsel's joint representation of co-defendants, the rule announced in these Supreme
Court cases "is not limited to [joint representation] situations." Atley, 191 F.3d at 870
n.4 (citing Wood, 450 U.S. at 268-74 (holding the trial court violated its duty to inquire
into the conflict created by the fact that the defendant's lawyer was hired and paid by
a third party); United States v. Horton, 845 F.2d 1414, 1418-20 (7th Cir. 1988)
(Horton) (applying Holloway and Cuyler "to a defendant's claim that his attorney's
application for a position as a United States Attorney created a conflict of interest that
deprived him of his Sixth Amendment right")).

       Koste claims that when he notified the trial court of a potential conflict of interest
with his attorney, that court had a constitutional duty to conduct an adequate inquiry
and that the failure to do so requires reversal. Considering the above described federal
law as determined by the Supreme Court, we hold that Koste's claim falls squarely
within the parameters of the Supreme Court's holding in Holloway. See Atley, 191
F.3d at 870. Cf. Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) (holding
that Holloway was not applicable where state trial court refused to appoint another
attorney for defendant for the purpose of moving for substitute counsel). Therefore,
pursuant to Williams, 529 U.S. at 405-06, we next consider whether the Missouri
appellate court's decision in the matter before us is "contrary to" federal law as
determined by the Supreme Court in Holloway.




                                            -11-
        In Atley, 191 F.3d at 872, this court recognized that "the nature of the factual
inquiry required by Holloway is necessarily case-specific, and that, in some cases, no
inquiry may be required because all of the relevant facts have been disclosed to the
court." In the matter under consideration, after sentencing, the trial judge asked Koste
whether he was satisfied with his attorney, and Koste responded that his attorney had
a conflict of interest because the attorney represented him in another case where she
provided constitutionally ineffective assistance of counsel and that this allegedly
ineffective assistance of counsel was the subject of a pending motion for post-
conviction relief. The trial judge did not inquire into the matter further nor did he give
Koste the opportunity to present any factual or legal basis for his allegation. Rather,
the trial judge simply responded that the court was not going to try the pending post-
conviction relief motion and was, therefore, denying Koste's contention of a conflict.
See Tr. at 15.

       The Missouri motion court held that the Koste's right to counsel was not violated
by the trial court during the trial judge's examination of him pursuant to Missouri Rule
29.07(b)(4). Upon considering Koste's allegation of his trial attorney's conflict of
interest, the Missouri appellate court specifically relied on its finding that Koste's
conclusory assertions did not show actual prejudice to his interests and required that
he establish actual prejudice in order to obtain post-conviction relief on his claim of
denial of effective representation due to his attorney's conflict. Koste v. State, slip op.
at 7. However, according to clearly established federal law, actual prejudice must be
established only where a defendant fails to make a timely objection. See Cuyler, 446
U.S. at 348; Atley, 191 F.3d at 869. As stated above, where a timely objection is
made, as in the matter under consideration, "the trial court has an obligation under
Holloway, to determine whether an actual conflict exists." Cuyler, 446 U.S. at 346;
Atley, 191 F.3d at 869. Therefore, we hold that the state court's decision requiring
Koste to show actual prejudice in order to prevail on his conflict of interest claim for




                                           -12-
post-conviction relief is "contrary to" clearly established federal law as determined by
Supreme Court precedent.5

       We note that in reaching its conclusion that Koste was not entitled to relief on
the basis of his alleged conflict of interest with his attorney, the district court quoted
the findings of the Missouri appellate court and said that the state court conclusion
withstood the scrutiny imposed by § 2254(d)(2), because it did not result in a
"unreasonable determination of the facts in light of the evidence presented in the State
court proceedings." Slip op. at 9. Thus, the district court did not rely on either the
"contrary to" or the "unreasonable application of" prongs of § 2254(d)(1), but rather
relied on § 2254(d)(2)'s provision that a federal court shall not grant habeas corpus
relief unless the state decision was based on an "unreasonable determination of the
facts in light of the evidence presented." However, as we hold that the state court's
decision was "contrary to" federal law as established by the Supreme Court, we need
not reach the issue of whether the district court properly denied habeas relief based on
§ 2254(d)(2).

                                  Appropriate Relief

       Having determined that the Missouri appellate court's decision is "contrary to"
clearly established federal law within the meaning of § 2254(d)(1), we address the issue
of appropriate relief. Holloway makes it clear that a failure to conduct an adequate
inquiry into a defendant's claim of his attorney's conflict of interest constitutes a
violation of the Sixth Amendment right to counsel. See Atley, 191 F.3d at 874. Such
a violation, according to Holloway, is a constitutional defect which entitles a petitioner


       5
       In Atley v. Ault, 191 F.3d 865 (8th Cir. 1999), because the state court sought
to apply clearly established Supreme Court precedent but did so unreasonably, this
court concluded that the state supreme court's decision "was an unreasonable
application of clearly established Supreme Court precedent." Atley, 191 F.3d at 872.

                                          -13-
to habeas relief and which requires reversal of a conviction. See id. Because Holloway
presumes prejudice to a petitioner where the trial court fails to adequately explore the
possibility of a timely raised conflict of interest, we hold that Koste "has satisfied his
burden under Strickland to show that he was deprived of effective assistance of counsel
in violation of the Sixth Amendment." Atley, 191 F.3d at 874 (citing Strickland, 466
U.S. at 692).

                                      Conclusion

       Accordingly, we reverse the judgment of the district court and remand this case
to district court for proceedings consistent with this opinion. The writ shall issue
unless, within 90 days from the issuance of this decision, the state commences
proceedings to retry Koste. Because we are reversing on other grounds, we find it
unnecessary to reach the issue of whether Koste is entitled to habeas relief based on his
allegation that his trial counsel failed to obtain a mental examination.

       A true copy.

              Attest:

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




                                          -14-
