                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4147
NEFTALY RODRIGUEZ,
                                            Petitioner-Appellee,
                               v.

NEDRA CHANDLER, Warden,
Dixon Correctional Center,
                                        Respondent-Appellant.

                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
        No. 02 C 2184—Harry D. Leinenweber, Judge.
                         ____________
     ARGUED MAY 25, 2004—DECIDED AUGUST 27, 2004
                     ____________



  Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS,
Circuit Judges.
  EASTERBROOK, Circuit Judge. Several months prior to
Neftaly Rodriguez’s trial for murder, the prosecutor filed a
motion to disqualify Joseph Brent as one of his lawyers.
Brent also represented detective John McMurray in an
unrelated real estate deal. The prosecutor told the judge
that McMurray was an “integral part of the case” against
Rodriguez because he had participated in the investigation
of one of Rodriguez’s co-defendants. According to the pros-
2                                                 No. 03-4147

ecutor, Brent’s simultaneous representation of Rodriguez
and McMurray created a “per se conflict of interest”. The
thinking was not spelled out but must have been that, if
McMurray appeared on the stand, Brent would treat him
with kid gloves during cross-examination, lest he risk up-
setting and losing a paying client. Relying on the prosecuto-
rial assurance that McMurray would testify, the judge held
that a conflict existed and deemed inadequate Rodriguez’s
offer to waive his right to conflict-free counsel. The court
prevented Brent from rendering Rodriguez any further as-
sistance. When trial arrived, however, the prosecutor failed to
call McMurray as a witness. Rodriguez was convicted and
on appeal argued that Brent had been disqualified improp-
erly. The Appellate Court of Illinois rejected this contention,
People v. Rodriguez, 317 Ill. App. 3d 1159 (1st Dist. 2000)
(unpublished order), finding that the trial court had only
unpalatable choices—if it disqualified Brent, Rodriguez might
protest that his right to choice of counsel had been violated;
but if it accepted Rodriguez’s waiver, he might disavow it on
appeal and assert ineffective assistance of counsel. The
Appellate Court found that the trial judge did not err in
choosing the former course.
  Rodriguez has petitioned for a writ of habeas corpus. 28
U.S.C. §2254. A state court’s decision may be upset on col-
lateral review only if its decision is contrary to, or an unrea-
sonable application of, law clearly established by the Supreme
Court. 28 U.S.C. §2254(d). Rodriguez does not contend that
the state court’s decision contradicts settled law. The
Appellate Court recognized, citing Wheat v. United States,
486 U.S. 153 (1988), that a constitutionally founded pre-
sumption in favor of a defendant’s choice of counsel can be
overcome only by a serious potential for conflict. But the
district court held that it was unreasonable for the state
tribunal to conclude that such a potential had been dem-
onstrated, given the low likelihood that McMurray had
material evidence to give against Rodriguez. 2003 U.S. Dist.
No. 03-4147                                                   3

LEXIS 21251 (N.D. Ill. Nov. 24, 2003). The district court
issued the writ, and Illinois appeals.
  Disqualification stemmed from the prosecutor’s assurance
that McMurray was a vital witness. But McMurray did not
testify, and on collateral review Illinois does not argue that
McMurray could have provided any admissible evidence
against Rodriguez. The prosecutor has never explained this
about-face, nor did the state’s appellate court try to make
sense of it. All the prosecutor could manage in the state
proceedings was to argue that Rodriguez had not shown
that McMurray was certain not to testify. We grant the
(implied) point that decisions must be made ex ante; if
disqualification was proper on the basis of all information
known or knowable at the time the judge acted, then later
developments (such as a severance that allowed the pros-
ecutor to withhold McMurray as a witness against Rodriguez,
while using him against other defendants) would not spoil
the decision. This differs, however, from an argument that
Rodriguez bore the burden of production and persuasion.
How could he have known the details of the prosecution’s
strategy? Under Wheat the risk of non-persuasion rests with
the prosecution rather than the defendant. The state’s
appellate court may have shared the prosecutor’s error; cer-
tainly its opinion does not disclaim it or otherwise evaluate
the prosecutor’s failure to put McMurray on the stand,
which pulled the rug out from under the trial court’s decision.
  The state’s line of argument is further embarrassed by the
fact that McMurray did not testify at the co-defendant’s
trial either. In this court Illinois suggests that, if severance
had not occurred, McMurray might have testified at a joint
trial, for his investigation indicated that the co-defendant
had no alibi and likely was at the scene of the murder. But
then why didn’t McMurray testify at the other trial? And
why, if this were the limit of McMurray’s testimony, would
Brent have been inclined to cross-examine McMurray at a
joint trial? It was known before the disqualification that
4                                                No. 03-4147

Rodriguez and his co-defendant had made statements blaming
one another for the murder (this is why their trials were
severed). McMurray’s testimony about the co-defendant’s
alibi either would have exculpated Rodriguez or been neu-
tral toward him. So the state’s explanation for disqualifying
Brent doesn’t hang together. While Rodriguez does not
accuse the prosecutor of acting in bad faith, that is not an
element of the constitutional theory.
  Cinching a conclusion that the state court’s decision is
unreasonable is that there never was much chance (viewed
objectively) that Brent would be placed in a conflicted or
compromised position. That is so even if McMurray was
likely to testify. Rodriguez had two lawyers and offered to
have Brent’s co-counsel conduct any cross-examination of
McMurray. Illinois does not contend that Brent learned
from McMurray privileged information that he could have
passed on to co-counsel (if there had been such privileged
information, both of Rodriguez’s attorneys would have been
disqualified). Having co-counsel cross-examine McMurray
would have eliminated all risks; and this easy solution (which
the state judiciary ignored) makes it unreasonable for the
state to have denied Rodriguez the benefit of Brent’s ser-
vices. A state court can be erroneous without being “unrea-
sonable.” See Yarborough v. Alvarado, 124 S. Ct. 2140 (2004);
Price v. Vincent, 538 U.S. 634, 641-43 (2003). Yet a decision
that not only rests on mistaken premises but also makes no
sense even if those premises had been true must be called
unreasonable.
  Illinois contends that any error is harmless. Rodriguez
enjoyed the services of one attorney of his own choosing
even after Brent departed, and he does not contend that his
trial counsel’s performance at trial was deficient in any
respect, let alone constitutionally ineffective. See Strickland
v. Washington, 466 U.S. 668 (1984). Our analysis of this issue
is not affected by 28 U.S.C. §2254(d), because the state’s
appellate court did not address whether any error was
No. 03-4147                                                  5

harmless. Nor does Teague v. Lane, 489 U.S. 288 (1989), come
into play. Teague ensures that judgments are not spoiled by
constitutional rules of criminal procedure established or
materially changed after a conviction becomes final. The
key word is “procedure”. See Schriro v. Summerlin, 124 S. Ct.
2519 (2004); Bousley v. United States, 523 U.S. 614 (1998).
Teague controls the application on collateral review of new
rules governing the conduct of police, prosecutors, or courts
preceding the verdict and sentence—that is, the primary
conduct under review in the collateral attack—but not the
standards by which the federal court conducts its own
review. We therefore decide whether the error was harmless
using currently applicable federal rules.
  The Supreme Court has never decided whether prejudice
is a prerequisite to reversal of a judgment following erro-
neous disqualification of counsel. In Flanagan v. United
States, 465 U.S. 259 (1984), the Court stated that an
erroneous disqualification could support reversal on appeal
following a conviction, see 465 U.S. at 268-69, and some
courts have understood this to imply that harmless-error
analysis would not be employed—though the Court did not
say that (the word “harmless” does not appear in the deci-
sion), and all that Flannigan establishes is that there would
be appellate jurisdiction to consider the issue after convic-
tion and sentence (though there is none before the final
decision). The Court has since observed that whether
erroneous disqualifications may be treated as harmless is
an open question. See Richardson-Merrell, Inc. v. Koller,
472 U.S. 424, 438 (1985). We have struggled with the issue
in both criminal and civil litigation. See United States v.
Santos, 201 F.3d 953 (7th Cir. 2000); In re Lewis, 212 F.3d 980
(7th Cir. 2000); United States v. Turk, 870 F.2d 1304 (7th Cir.
1989). Turk suggests (but does not hold) that proof of
prejudice is required. (The decision in Turk rested on the
finding that the district court did not abuse its discretion in
denying the defendant’s request for a continuance to obtain
6                                                  No. 03-4147

a new attorney.) Santos added, see 201 F.3d at 960, that it
is difficult to show prejudice (especially when one counsel of
choice remains) without also showing ineffective assistance,
in which event the propriety of the disqualification is
irrelevant. But it does not follow, and Santos did not hold, that
reversal is automatic. Many procedural errors (constitutional,
statutory, and regulatory) may be non-prejudicial, and it
would make little sense to say that the less harm a mistake
causes the more readily the appellate court must set aside the
judgment. See, e.g., United States v. Patterson, 215 F.3d 776,
778-82 (7th Cir. 2000), remanded in part on unrelated
grounds, 531 U.S. 1033 (2000), after remand, 241 F.3d 912
(2001) (the difficulty of showing prejudice from an error that
forces the defendant to use a peremptory challenge does not
justify automatic reversal).
  The norm in cases on collateral review is that the petitioner
must show that the error had a substantial and injurious
effect on the outcome. See Brecht v. Abrahamson, 507 U.S.
619 (1993). As long as a defendant has counsel and is tried
before an impartial judge or jury, most blunders are as-
sessed to see whether their effect injures the defense. Neder
v. United States, 527 U.S. 1 (1999). Defendants denied all
assistance of counsel need not show that the denial affected
the verdict. See Bell v. Cone, 535 U.S. 685 (2002); United
States v. Cronic, 466 U.S. 648 (1984). Prejudice in these sit-
uations is so likely that case-by-case inquiry is unnecessary.
See Arizona v. Fulminante, 499 U.S. 279 (1991). But
shortcomings in counsel’s performance justify relief only if
the deficiencies were prejudicial. See Mickens v. Taylor, 535
U.S. 162 (2002); Strickland v. Washington, 466 U.S. 668
(1984); Morris v. Slappy, 461 U.S. 1 (1983).
  It is hard to see why violations of the qualified right to
counsel of choice should lead to automatic reversal, when
deprivation of the absolute right to a competent attorney
leads to relief only if prejudice is demonstrable. An attorney
is vital to a reliable trial. A competent attorney is less
No. 03-4147                                                   7

so—one must show that, but for counsel’s bungling, the
outcome likely would have differed. Having one’s preferred
attorney is icing on the cake. A defendant with an inept
attorney is in a more precarious position than one with a
competent lawyer who is the defendant’s second or third
choice. A rule of automatic reversal when the defendant does
not get his first-choice lawyer, but requiring proof of
prejudice when the defendant does not get even a competent
lawyer, would not make sense—particularly in cases such
as this where the defendant goes to trial with another
lawyer of his own choice. We are aware that several circuits
have held that the denial of the right to choice of counsel
never may be deemed harmless. See United States v. Panzardi
Alvarez, 816 F.2d 813 (1st Cir. 1987); United States v. Voigt,
89 F.3d 1050 (3d Cir. 1996); Wilson v. Mintzes, 761 F.2d 275
(6th Cir. 1985); Bland v. California, 20 F.3d 1469 (9th Cir.
1994), overruled on other grounds by Schell v. Witek, 218 F.3d
1017 (9th Cir. 2000). Contra, United States v.
Mendoza-Salgado, 964 F.2d 993 (10th Cir. 1992) (prejudice
required unless trial court acted “unreasonably or arbitrarily”
in disqualifying counsel). But most of these decisions rely
on Flanagan without discussing its limits (or the observa-
tion in Richardson-Merrell), and all of them precede Neder
and Mickens. Cases like Rodriguez’s, where the defendant
is represented at trial by at least one lawyer of his own
choosing, are especially poor candidates for automatic reversal.
  This leaves unanswered the question posed in Santos—
how can a defendant prove prejudice when his substitute
counsel provided constitutionally adequate assistance? Maybe
the answer is that, when the defendant cannot prove pre-
judice, the judgment always stands. So the Supreme Court
has held even when the right at issue affects the assistance of
counsel. United States v. Morrison, 449 U.S. 361 (1981), re-
jected the proposition that all interference with attorney-
client relations (in Morrison, meeting with a suspect while
8                                                No. 03-4147

counsel was absent and disparaging the lawyer in an effort
to undermine the client’s confidence) automatically spoiled
the prosecution.
  Some kind of effect must be shown. But what kind? Los-
ing the services of one’s preferred lawyer can be similar to
receiving the services of a lawyer with a concealed conflict:
in either situation trial counsel may well do just fine, but
there may be hard-to-uncover shortcomings. The Supreme
Court resolved the difficulties facing defendants repre-
sented by a conflicted attorney by holding that relief is
possible if the conflict “adversely affects” counsel’s perfor-
mance at trial. See Mickens, 535 U.S. at 170-72 & n. 5; Cuyler
v. Sullivan, 446 U.S. 335 (1980). Adverse effect might be
shown if, for example, counsel failed to pursue a reasonable
alternative defense strategy. See Rubin v. Gee, 292 F.3d 396
(4th Cir. 2002); McFarland v. Yukins, 356 F.3d 688 (6th Cir.
2004).
   The adverse-effect standard lies midway between auto-
matic reversal and requiring proof of a likely difference in
the litigation’s outcome. Until the Supreme Court settles
the question it left open in Richardson-Merrell, this middle
ground seems the closest match to situations in which the
court wrongly strips the defendant of his preferred lawyer.
Adverse effect in this situation means an identifiable dif-
ference in the quality of representation between the disqua-
lified counsel and the attorney who represents the defendant
at trial. The difference does not have to be great enough to
undermine confidence in the outcome—that is the standard
under Strickland, see 466 U.S. at 694; Woodford v. Visciotti,
537 U.S. 19, 23-24 (2003)—but it must be enough to show
that the defendant’s representation suffered a setback from
the disqualification.
   Has Rodriguez shown an adverse effect? This might be
done if Brent had expertise that his other lawyer lacked, or
if Brent had planned a line of defense that co-counsel was
No. 03-4147                                                9

unable to sustain on his own. So far, however, the record is
silent. Brent has not filed an affidavit detailing what he
would have done differently had he conducted the trial or
how the defense otherwise might have been affected by his
absence. It is hard to blame Rodriguez for this. Illinois ar-
gued for application of the prejudice standard from inef-
fective-assistance cases, which would have the practical
effect of eliminating relief in all cases when the defendant
loses his preferred lawyer, and thus of making Wheat a dead
letter. Rodriguez argued for automatic reversal, the opposite
extreme. Now that we have settled on a middle ground, both
sides should have an opportunity to produce evidence and
craft arguments bearing on the applicable standard. See 28
U.S.C. §2106. Accordingly, the judgment of the district court
is vacated, and the case is remanded for proceedings
consistent with this opinion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-27-04
