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

No. 00-2023
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                               v.

MARK K. FULLER,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
             for the Western District of Wisconsin.
             No. 99 CR 21—John C. Shabaz, Judge.
                        ____________
    ARGUED OCTOBER 1, 2002—DECIDED DECEMBER 3, 2002
                        ____________


 Before COFFEY, RIPPLE and KANNE, Circuit Judges.
  RIPPLE, Circuit Judge. Pursuant to an agreement with the
Government, Mark Fuller pled guilty to “check kiting” in
violation of 18 U.S.C. § 1014. He later filed a motion to
withdraw his guilty plea. The district court denied the
motion. Mr. Fuller submits that the attorney who repre-
sented him at his hearing on the motion had an actual
conflict of interest and, as a result, rendered ineffective
assistance of counsel; he seeks a new hearing on the motion
to withdraw his guilty plea with “conflict-free” counsel.
Because the record affirmatively demonstrates that coun-
sel’s performance at the original hearing was not inade-
2                                                No. 00-2023

quate, the Supreme Court’s recent decision in Mickens v.
Taylor, 122 S. Ct. 1237 (2002), requires that we affirm the
judgment of the district court.


                              I
                     BACKGROUND
A. Facts
  Mr. Fuller pled guilty pursuant to an agreement in which
the Government promised to recommend a sentence of
probation “[i]f under the sentencing guidelines, [Mr. Fuller]
qualifie[d] for a sentence of straight probation.” R.23. How-
ever, a violation of 18 U.S.C. § 1014 is a Class B felony and,
Mr. Fuller therefore was ineligible for probation under 18
U.S.C. § 3561(a)(1) and § 5B1.1(b)(2) of the United States
Sentencing Guidelines. Mr. Fuller’s attorney at the time
did not inform Mr. Fuller prior to the entry of his plea
of guilty that, despite the provision in the plea agreement,
he was ineligible for probation. The agreement did dis-
close to Mr. Fuller, however, that his offense carried a
maximum penalty of 30 years’ imprisonment and warned
him not to base his guilty plea on promises or predictions
about the severity of his sentence.
  Mr. Fuller’s plea hearing met the requirements of Rule 11
of the Federal Rules of Criminal Procedure. The district
court asked whether Mr. Fuller was satisfied with his
counsel’s representation, whether he had discussed the
plea agreement with counsel, and whether he understood
the terms of the agreement. Mr. Fuller answered affirma-
tively. He further represented to the court that he was
pleading guilty voluntarily and understood the conse-
quences of his plea. The judge questioned Mr. Fuller spe-
cifically about his understanding of the impact of his plea
on his sentence:
No. 00-2023                                           3

   THE COURT:   Do you understand that guideline
                computation discussions are not part
                of the plea agreement. You should
                not rely on the possibility of a partic-
                ular sentence based on any guideline
                computation discussions between
                your attorney and the United States.
                Is that your understanding, sir?
   DEFENDANT
   FULLER:      Yes.
   THE COURT:   Now is it your understanding that
                when you signed this agreement you
                acknowledged that the United States
                had made no promises or guarantees
                concerning the sentence to be im-
                posed?
   DEFENDANT
   FULLER:      Yes, sir.
   THE COURT:   They’ve made a recommendation
                but no promise or guarantee. Is that
                your understanding?
   DEFENDANT
   FULLER:      Yes, sir.
   THE COURT:   Do you also understand and ac-
                knowledge that the Court is not re-
                quired to accept any recommenda-
                tion which may be made by the
                United States and is free to impose
                any sentence up to and including
                the maximum penalties set forth in
                this plea agreement subject only to
                the limitations imposed by the guide-
4                                                No. 00-2023

                      lines. Is that your understanding and
                      agreement, Mr. Fuller?
    DEFENDANT
    FULLER:           Yes, sir.
Plea Hearing Tr. at 10-11. Satisfied that Mr. Fuller was
pleading guilty knowingly and voluntarily, the judge ac-
cepted the plea.
  Not until his presentence interview, after he had al-
ready entered his guilty plea, did Mr. Fuller become
aware that he was not eligible for probation. Shortly after
the presentence interview, Mr. Fuller, who had been re-
leased under curfew restrictions and pretrial supervision,
changed his residence without informing the probation
office. He failed to appear for his scheduled sentencing
hearing, and an arrest warrant was issued. Mr. Fuller was
a fugitive from July 9, 1999, until he was apprehended in
February 2000.


B. Motion to Withdraw the Guilty Plea
   After Mr. Fuller was located, a new sentencing date was
scheduled. Prior to the sentencing hearing, his attorney filed
on Mr. Fuller’s behalf a motion to withdraw the guilty plea;
the motion was supported by an affidavit in which Mr.
Fuller claimed to have been misled by the Government’s
promise to recommend probation if he was eligible for
it: “Although my attorney never represented to me that
I would receive a probationary sentence, the plea agree-
ment contained language that made me believe a proba-
tionary sentence was possible.” R.37. Subsequently, Mr.
Fuller sent an unsworn, handwritten letter to the court,
which the judge and defense counsel read for the first
time just minutes before argument on the motion to with-
No. 00-2023                                                5

draw the guilty plea. Mr. Fuller wrote that the prosecu-
tor “lead [sic] [him] to believe that [he] would receive
probation in exchange for a plea of guilty,” and that de-
fense counsel had told him that the prosecutor would
likely “fight for probation for you, if you enter a plea.”
Appellant’s Br. at App. 11.
  Before arguing Mr. Fuller’s motion to withdraw his
guilty plea, defense counsel addressed the allegations in
the letter. He told the court that he did not join in Mr.
Fuller’s allegations against the prosecutor and that he did
not believe the prosecutor would communicate with Mr.
Fuller outside his presence. Defense counsel admitted to
the court that he had “a mild criticism of [his] own repre-
sentation”: he had not consulted the guidelines before
the plea hearing to determine whether Mr. Fuller was
eligible for probation. Sentencing Tr. at 5. Instead, he had
told Mr. Fuller, “I sort of doubt that you’re eligible for
probation but it sure doesn’t hurt to have it” in the plea
agreement. Id. Defense counsel further represented to
the court that he felt it inappropriate to argue that Mr.
Fuller did not enter his plea knowingly and voluntarily.
But he did argue that the panic Mr. Fuller felt when he
realized he was ineligible for probation was a “fair and just
reason to allow withdrawal from the plea.” Id. at 7. Defense
counsel also predicted that, if the court denied the mo-
tion, Mr. Fuller would appeal the decision based on inef-
fective assistance of counsel, and suggested that the court
therefore consider granting the motion on “judicial econ-
omy” grounds. Id. at 4.
  The district court reviewed the plea-hearing transcript
line by line, asking Mr. Fuller if he remembered telling
the court that he understood the consequences of his
plea. The court then denied the motion, finding that, even if
Mr. Fuller had believed that probation was possible, his
6                                                    No. 00-2023

representations at his change-of-plea hearing precluded
him from withdrawing his plea. The court opined that
“this is the most frivolous motion to withdraw that I
would believe has ever been made in this court.” Id. at 19.


C. Counsel’s Anders Submission
  Mr. Fuller appealed to this court. The defense counsel
who had represented him at trial subsequently submitted
a motion to withdraw under Anders v. California, 386 U.S.
738 (1967). Mr. Fuller filed a response, alleging that he
had pled guilty based on defense counsel’s misrepresenta-
tion that he would receive a straight probationary sen-
tence if he did plead guilty. He also moved for appoint-
ment of new counsel. Mr. Fuller also submitted document-
ation of a grievance he had filed against his defense counsel
                                 1
with the Wisconsin state bar. We granted Mr. Fuller’s
motion, holding that for purposes of appeal defense
counsel had an actual conflict of interest in view of allega-
tions made by Mr. Fuller in various pro se submissions
to this court. United States v. Fuller, No. 00-2023 (7th Cir.
Dec. 20, 2001) (unpublished order). Although our order
specified that defense counsel had a conflict of inter-
est for the purposes of Mr. Fuller’s appeal, we expressly
reserved comment on whether defense counsel had a con-


1
  The Government has filed a motion to strike from appel-
lant’s opening brief the letter discussing the grievance that Mr.
Fuller filed against his defense counsel with the Wisconsin state
bar. This letter has already been discussed in our order grant-
ing Mr. Fuller’s motion for appointment of new counsel, United
States v. Fuller, No. 00-2023 (7th Cir. Dec. 20, 2001) (unpublished
order). Accordingly, we deny the Government’s motion and
sua sponte supplement the record with the letter.
No. 00-2023                                                       7

flict of interest at the time he argued Mr. Fuller’s motion
to withdraw his plea.


                                II
                         DISCUSSION
  We generally discourage appellants from bringing
ineffective assistance of counsel claims for the first time
on direct appeal because only rarely is the trial record
sufficiently developed for meaningful review. See United
States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000); United
States v. Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999).
However, when appellate counsel did not represent the
defendant at trial or in pretrial proceedings and when the
record is sufficiently developed to allow review of the
issue, it is appropriate for an appellant to raise an ineffec-
tive assistance claim on direct appeal. Martinez, 169 F.3d
at 1052. Mr. Fuller’s claim meets these criteria: trial defense
counsel no longer represents Mr. Fuller, and the record
is sufficiently developed to allow consideration of the
claim that trial defense counsel was laboring under a
conflict of interest when Mr. Fuller sought to withdraw
his plea. Accordingly, we address Mr. Fuller’s ineffective
assistance claim on direct appeal. Id.
  Ineffective assistance of counsel claims are governed
by the familiar two-part test set out in Strickland v. Wash-
ington, 466 U.S. 668 (1984). A defendant must establish
that his attorney provided deficient representation and
that he was prejudiced by his attorney’s deficiencies. Until
recently, a defendant alleging that a conflict of interest
rendered his attorney’s assistance ineffective could dem-
onstrate the prejudice prong of the Strickland test in one
of two ways. See United States v. Wallace, 276 F.3d 360, 366
(7th Cir.), cert. denied, 122 S. Ct. 2592 (2002). If the trial court
8                                                  No. 00-2023

knew or should have known of an attorney’s potential
conflict of interest but failed to adequately address the issue,
then prejudice was presumed. Id. at 366-67. If the trial court
could not have been expected to know about a potential
conflict of interest, prejudice was presumed if the attorney
represented competing interests in such a way that his
performance was adversely affected. Id. at 367.
   The Supreme Court’s decision in Mickens v. Taylor, 122
S. Ct. 1237 (2002), has modified the previous analysis
of ineffective assistance of counsel claims based on a con-
flict of interest. To prevail after Mickens, a defendant must
establish that an actual conflict of interest adversely affected
his attorney’s performance. 122 S. Ct. at 1245. An actual
conflict exists when an attorney actively represents in-
compatible interests; it is more than a “mere theoretical
division of loyalties.” Id. at 1243. In other words, a poten-
tial conflict of interest, no matter how it is addressed by
the trial judge, is now insufficient to warrant relief. Id.
   Mr. Fuller submits that trial defense counsel’s interest
in shielding himself from a malpractice suit based on giv-
ing his client inadequate advice competed with his inter-
est in zealously arguing Mr. Fuller’s motion to withdraw
his guilty plea. The result, Mr. Fuller contends, is that his
trial defense counsel was burdened by an actual conflict
of interest during the district court proceedings.
  At the time of the hearing on the motion to withdraw,
Mr. Fuller represented to the court that defense counsel
had failed to inform him that he was ineligible for proba-
tion before he pled guilty. But Mr. Fuller did not accuse his
counsel of promising him a sentence of probation if he
entered a plea. Indeed, in his sworn affidavit, Mr. Fuller
stated, “[M]y attorney never represented to me that I would
receive a probationary sentence.” R.37.
No. 00-2023                                                9

  Nor did Mr. Fuller, in his unsworn handwritten letter
to the district court, accuse his counsel of lying. At worst,
Mr. Fuller alleged in his letter that trial defense counsel
told him that “it looked like” the prosecution would
advocate probation if he pled guilty. Essentially, Mr. Fuller
was claiming that counsel had been negligent in inves-
tigating the sentencing consequences of a guilty plea and
in ensuring that his client was sufficiently informed be-
fore his change-of-plea hearing.
   Presumably, defense counsel would have an interest
in concealing this negligence in order to avoid a malprac-
tice suit or disciplinary action. Nevertheless, counsel did
not represent actively this interest at the hearing on Mr.
Fuller’s motion to withdraw his guilty plea. He made no
attempt to conceal his failure to inform Mr. Fuller that he
was ineligible for probation. Indeed, he acknowledged
on the record in open court that he neglected to tell Mr.
Fuller that probation was closed to him by statute. In his
statements to the district court, counsel admitted to the
worst of Mr. Fuller’s accusations against him. He inten-
tionally exposed himself to malpractice or professional
disciplinary action in the course of arguing Mr. Fuller’s
motion to withdraw. Such an admission would suggest
that trial defense counsel was actively representing Mr.
Fuller’s interests at the expense of his own, rather than the
reverse. Defense counsel may have faced a potential con-
flict of interest, but he never let the potential conflict
ripen into an actual conflict.
  Even if Mr. Fuller could demonstrate that trial defense
counsel actively represented competing interests while
arguing the motion to withdraw, he cannot demonstrate
that doing so adversely affected counsel’s performance.
Mickens, 122 S. Ct. at 1243. As Mr. Fuller points out, de-
fense counsel did tell the court that he did not believe Mr.
10                                              No. 00-2023

Fuller’s allegations that the prosecutor had promised him
a probationary sentence in exchange for a guilty plea, and
he did not argue the motion to withdraw based on that
allegation. It should be noted, however, that the motion
Mr. Fuller filed did not rely on the premise that the prose-
cutor had engaged in misconduct. Mr. Fuller does not
have and has never offered evidence of the prosecutor’s
alleged misrepresentation. Rather, Mr. Fuller claimed in
his sworn affidavit that the language of the plea agree-
ment had led him to believe that probation was a possibility.
Defense counsel argued the motion on that ground and,
in support, admitted his own negligence in advising
Mr. Fuller. In doing so, defense counsel merely stated,
without contradiction from Mr. Fuller, what he reasonably
believed that Mr. Fuller was trying to communicate through
his letter: that it was the prosecutor’s misrepresenta-
tions in the plea agreement, not in some private conversa-
tion, that had “misled” him.
  The district court correctly determined that Mr. Fuller’s
motion was meritless. An attorney’s inaccurate prediction
of his client’s sentence does not constitute ineffective
assistance of counsel. Martinez, 169 F.3d at 1053 (attorney’s
failure to inform client that he was ineligible for boot
camp was not deficient performance for the purposes of
an ineffective assistance claim). Even though defense
counsel had failed to inform Mr. Fuller that probation
was not a possibility, Mr. Fuller represented in open
court under oath that his guilty plea had not been in-
duced by promises or predictions about sentencing. In-
court statements at a change-of-plea hearing carry great
weight, and Mr. Fuller’s later claims cannot overcome
the presumption that his representations to the court
were truthful. United States v. Stewart, 198 F.3d 984, 987
(7th Cir. 1999). The motion to withdraw did not fail because
defense counsel’s performance was “adversely affected”;
No. 00-2023                                                      11

it failed because Mr. Fuller could not overcome the pre-
sumption that his representations to the court at his plea
                       2
hearing were truthful.
  Mr. Fuller had adequate representation at the hearing
on the motion to withdraw his plea. Mr. Fuller had the


2
  Mr. Fuller’s appellate counsel relies upon two cases in which
we found an actual conflict of interest when an attorney made
misrepresentations concerning the ramifications of a guilty plea.
United States v. Morris, 259 F.3d 894 (7th Cir. 2001); United States
v. Ellison, 798 F.2d 1102 (7th Cir. 1986). These cases were de-
cided before the Supreme Court’s decision in Mickens and there-
fore do not articulate the approach set forth by the Supreme
Court in that case. In any event, we do not think that it can be
fairly said that either of these two cases control the situation
before us. In Morris, counsel told the defendant that a plea of
guilty would not waive his right to appeal the admissibility of
certain evidence found after his right to counsel had attached.
259 F.3d at 896. After entry of his plea, the defendant filed a pro
se brief arguing that he should be permitted to withdraw his
guilty plea because of his attorney’s misrepresentations. Id. at
897. This court simply remanded the case to the district court
to determine whether the defendant’s guilty plea had been
based on his attorney’s erroneous advice. Id. at 901. Notably, in
Morris, the trial defense counsel had not filed a motion to
withdraw the guilty plea on the defendant’s behalf; nor had
the defendant received a hearing on his motion to withdraw
his plea. In short, there was a real possibility that the attorney’s
advice had resulted in an improvident plea.
  In Ellison, the defendant filed a pro se motion to withdraw his
guilty plea based on his attorney’s erroneous advice and was
granted a hearing at which his attorney testified. 798 F.2d at
1108. The attorney admitted to a conflict of interest and left
his client “effectively without counsel” at the hearing. Id. Indeed,
the defendant was forced to present his own motion to with-
draw without the assistance of counsel.
12                                               No. 00-2023

benefit of an attorney at his hearing: His trial defense
counsel filed and argued Mr. Fuller’s motion to withdraw
his guilty plea, and Mr. Fuller had the opportunity to
present his challenges to his plea before the district court.
The record reveals that defense counsel’s performance
at that hearing was adequate, and that is all that Mickens
requires.


                        Conclusion
  Because defense counsel provided adequate representa-
tion at the hearing on the motion to withdraw Mr. Fuller’s
guilty plea, we affirm the judgment of the district court.
                                                   AFFIRMED

A true Copy:
       Teste:

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




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