No. 00-9285 

In the Supreme Court of the United States 

WALTER MICKENS, JR., PETITIONER 

v. 

JOHN TAYLOR, WARDEN 
(CAPITAL CASE) 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

THEODORE B. OLSON 
Solicitor General 

Counsel of Record 
MICHAEL CHERTOFF 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
GREGORY G. GARRE 

Assistant to the Solicitor 

General 
JOEL M. GERSHOWITZ 

Attorney 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Court granted certiorari limited to the following 
question: 

“Did the Court of Appeals err in holding that a defendant 
must show an actual conflict of interest and an adverse effect 
in order to establish a Sixth Amendment violation where a 
trial court fails to inquire into a potential conflict of interest 
about which it reasonably should have known?”. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 

7 

Argument: 

The Sixth Amendment is not violated when a trial 
court fails to inquire into a potential conflict of 

interest about which it reasonably should have known, 
unless a defendant shows an actual conflict that 
adversely affected counsel’s performance ........................ 

10 

A. The Constitution only protects against deficien- 
cies in counsel’s performance that prejudice the 
defense .............................................................................. 10 

B. Under this Court’s precedents, a trial court’s 
failure to inquire into an apparent conflict to 
which the defendant did not object does not eli- 
minate the need to show an actual conflict adverse- 
ly affecting the representation ..................................... 
13 

C. The requirement that a defendant who does not 

object at trial must show both an actual conflict 
and an adverse effect to establish a Sixth Amend- 
ment violation is well-founded and should be re- 
affirmed in this case ........................................................ 

21 
D. In applying the Sullivan rule, the court of 
appeals properly looked for a link between 

the alleged conflict and the alleged deficiency in 
representation ................................................................. 27 

Conclusion ....................................................................................... 29 

TABLE OF AUTHORITIES 

Cases: 

Bonin v. California, 494 U.S. 1039 (1990) ......................... 
21 

Brecht v. Abrahamson, 507 U.S. 619 (1993) ................. 25, 26 

(III) 

IV 

Cases—Continued: Page 

Brien v. United States, 695 F.2d 10 (1st Cir. 1982) ..... 
19, 20 

Burden v. Zant, 510 U.S. 132 (1994) .................................. 
21 

Burger v. Kemp, 483 U.S. 776 (1987) ....................... 
13, 20, 28 

Ciak v. United States, 59 F.3d 296 (2d Cir. 1995) ............ 
19 

Cuyler v. Sullivan, 446 U.S. 335 (1980) ..................... 
passim 

Davis v. Alaska, 415 U.S. 308 (1974) ................................. 
22 

Freund v. Butterworth, 165 F.3d 839 (11th Cir.), 
cert. denied, 528 U.S. 817 (1999) ......................................... 
28 

Gideon v. Wainwright, 372 U.S. 335 (1963) ....................... 
10 

Glasser v. United States, 315 U.S. 60 (1942) ..................... 
14 

Holloway v. Arkansas, 435 U.S. 475 (1978) ...................... 
5, 7, 

12, 13, 14, 22, 23 
Kimmelman v. Morrison, 477 U.S. 365 (1986) ................. 

11 

Lockhart v. Fretwell, 506 U.S. 364 (1993) ...... 
9, 11, 13, 21, 24 

Mountjoy v. Warden, 245 F.3d 31 (1st Cir. 2001), 
petition for cert. pending, No. 00-10683 (filed 
June 18, 2001) ......................................................................... 
19 

Nix v. Whiteside, 475 U.S. 157 (1986) ............................ 
11, 24 

Perry v. Leeke, 488 U.S. 272 (1989) ................................ 
20-21 

Simmons v. South Carolina, 512 U.S. 154 (1994) ............ 
2 

Smith v. Robbins, 528 U.S. 259 (2000) ..................... 
11, 12, 21 

Strickland v. Washington, 466 U.S. 668 (1984) ........ 
7, 10, 11, 

12, 20, 28 

United States v. Burney, 756 F.2d 787 (10th Cir. 
1985) ......................................................................................... 19 

United States v. Cronic, 466 U.S. 648 (1984) ................ 
11, 22 

United States v. Morrison, 449 U.S. 361 (1981) ........... 
10, 26 

United States v. Tatum, 943 F.2d 370 (4th Cir. 
1991) ......................................................................................... 24 

Wheat v. United States, 486 U.S. 153 (1988) ..................... 

24 

Wood v. Georgia, 450 U.S. 261 (1981) ......................... 
4, 8, 13, 

16, 17, 18, 20, 28 

V 

Constitution, statutes and rule: 
Page 

U.S. Const.: 

Art. VI ..................................................................................... 

25 

Amend. VI ........................................................................ 
passim 

Amend. VIII ........................................................................... 
13 

28 U.S.C. 2254 ............................................................................ 
1, 2 

28 U.S.C. 2255 ............................................................................ 
1 

Va. Code Ann. § 18.2-31(5) (Michie 1996) ............................. 
2 

Fed. R. Crim. P. 44(c) ........................................................... 
24, 25 

Miscellaneous: 

Black’s Law Dictionary (5th ed. 1979) ................................. 18 

In the Supreme Court of the United States 

No. 00-9285 

WALTER MICKENS, JR., PETITIONER 

v. 

JOHN TAYLOR, WARDEN 
(CAPITAL CASE) 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

INTEREST OF THE UNITED STATES 

The United States has a substantial interest in the resolu- 
tion of the question on which the Court granted certiorari. 
Claims of ineffective assistance of counsel are frequently as- 
serted under the Sixth Amendment on collateral review in 
federal criminal cases. Although this case involves a state 
prisoner seeking relief under 28 U.S.C. 2254, the Court’s 
decision likely will affect ineffective-assistance claims 
brought by federal prisoners under 28 U.S.C. 2255 as well. 

STATEMENT 

1. In March 1992, Timothy Hall’s body was discovered 
beneath an abandoned construction site along the James 

(1) 

2 

River in Newport News, Virginia. It was covered with stab 
wounds and was naked from the waist down with the legs 
splayed. There were bloody “transfer” stains on the outside 
of Hall’s thighs and other signs of an attempted sodomy. 
The medical examiner concluded that Hall had bled to death 
from 143 separate “sharp force injuries,” and that Hall could 
have survived in a conscious state for as long as 30 to 45 
minutes after the last wound was inflicted. Extensive evi- 
dence tied petitioner to Hall’s death, including incriminating 
statements made by petitioner to police shortly after his 
arrest, petitioner’s confession to a cellmate to the murder 
and attempted sodomy of Hall, analyses of DNA and pubic 
hairs found on Hall, eyewitness testimony placing petitioner 
at the scene of the crime, and the fact that petitioner sold a 
pair of athletic shoes belonging to Hall to another individual 
just days after Hall’s death. Pet. App. 5-6. 

In 1993, a Virginia jury found petitioner guilty of the 
capital murder of Hall under a state law making premedi- 
tated murder during or following the commission of at- 
tempted forcible sodomy a capital offense. Va. Code Ann. 
§ 18.2-31(5) (Michie 1996). The jury further found that Hall’s 
murder was outrageously and wantonly vile, and sentenced 
petitioner to death. Pet. App. 6. On direct appeal, peti- 
tioner’s sentence was vacated by this Court for reconsidera- 
tion in light of Simmons v. South Carolina, 512 U.S. 154 
(1994), and the case was remanded for resentencing. 513 
U.S. 922 (1994). Following a new sentencing hearing during 
which a Simmons instruction on parole ineligibility was 
made, a jury again sentenced petitioner to death. That sen- 
tence was affirmed on appeal and petitioner’s application for 
state habeas corpus relief was denied. Pet. App. 6-7. 

2. a. In June 1998, petitioner applied for a writ of federal 
habeas corpus under 28 U.S.C. 2254 in the United States 
District Court for the Eastern District of Virginia, claiming, 
inter alia, that he was denied effective assistance of counsel 

3 

in violation of the Sixth Amendment because his court- 
appointed counsel labored under a conflict of interest at trial. 
While investigating the case, petitioner’s federal habeas 
counsel had reviewed Hall’s juvenile court file and dis- 
covered that petitioner’s trial counsel, Bryan Saunders, was 
representing Hall on assault and concealed weapon charges 
at the time of Hall’s death. Judge Paul Criver of the local 
juvenile court had appointed Saunders to represent Hall on 
those charges on March 20, 1992. Sometime between March 
20 and March 28, 1992, when Hall was last seen alive, 
Saunders met with Hall for 15 to 30 minutes. Pet. App. 7. 

On April 3, 1992, Judge Aundria Foster of the juvenile 
court dismissed the charges against Hall, noting on the doc- 
ket sheet that Hall was deceased. The docket sheet was one- 
page long and listed Saunders as Hall’s counsel. Saunders 
learned of the dismissal that day. Pet. App. 7. The following 
day, petitioner was arrested for the murder and attempted 
forcible sodomy of Hall. On April 6, Judge Foster appointed 
Saunders and Warren Keeling to represent petitioner on 
those charges. Saunders handled the guilt phase of 
petitioner’s trial, while Keeling handled the sentencing 
phase. Neither Saunders nor Keeling represented petitioner 
in the state habeas proceeding. Saunders did not disclose his 
prior representation of Hall to the court, his co-counsel, or 
petitioner, who did not learn about the representation until 
it was discovered by his federal habeas attorney upon 
reviewing Hall’s juvenile file. Id. at 8. 

b. In November 1999, after conducting an evidentiary 
hearing, the district court denied petitioner’s federal habeas 
petition. Pet. App. 47-80. The court rejected petitioner’s 
Sixth Amendment claim, holding that petitioner failed to 
establish “an actual conflict of interest [that] adversely af- 
fected his lawyer’s performance.” Id. at 65 (quoting Cuyler 

4 

v. Sullivan, 446 U.S. 335, 350 (1980)); see id. at 79.1 The 
court found that petitioner “failed to demonstrate a correla- 
tion * * * between Saunders’ representation of Hall for 
assault and possession of a concealed weapon and his repre- 
sentation of [petitioner] on attempted forcible sodomy and 
capital murder charges,” id. at 68; “Saunders did not learn 
any confidential information from Hall that was relevant to 
[petitioner’s] defense,” id. at 69; and “Saunders did not 
believe that any ‘continuing duties to a former client might 
interfere with his consideration of all facts and options for 
his current client,’ ” ibid. (internal brackets omitted). The 
court further found that there was no evidence that any 
conflict that might have existed because of Saunders’ prior 
representation of Hall adversely affected Saunders’ repre- 
sentation of petitioner. See id. at 70-76. 

The district court also rejected petitioner’s related argu- 
ment, based on Wood v. Georgia, 450 U.S. 261 (1981), that his 
conviction should be reversed simply because Judge Foster 
declined to inquire into the potential conflict on Saunders’ 

1 Because petitioner did not present his Sixth Amendment conflict-of- 
interest claim to the state courts, the district court explained that peti- 
tioner could raise that claim on federal habeas only if he established both 
“cause and prejudice.” Pet. App. 63. The court found cause for not raising 
the claim earlier based on the fact that neither petitioner nor his state 
habeas counsel had any reason “to even consider the possibility that a 
conflict existed.” Id. at 64. The court next reasoned that “[w]here the 
defaulted claim involves an actual conflict of interest on the part of coun- 
sel, the prejudice inquiry incorporates the test for establishing the under- 
lying [Sixth Amendment] claim.” Id. at 65. The court of appeals followed 
the same approach in considering whether it was appropriate to entertain 
petitioner’s Sixth Amendment claim. See id. at 9-10. Because it is not 
within the question framed by this Court (see 121 S. Ct. 1651 (2001)), and 
because the judgment may be affirmed based on the ground relied upon by 
the court of appeals below, we do not address whether the courts below 
properly collapsed the prejudice inquiry into their analysis of the merits of 
the underlying Sixth Amendment claim. 

5 

part. Pet. App. 77. The court agreed with petitioner that 
“the record before Judge Foster presented special 
circumstances of an apparent possible conflict which 
required judicial inquiry.” Ibid. But relying on this Court’s 
decisions in Wood and Sullivan, the district court held that a 
trial court’s “failure to inquire into a possible conflict does 
not [in itself] require reversal.” Id. at 78. Instead, the court 
concluded, a defendant must show both an actual conflict and 
an adverse effect on the representation to establish a Sixth 
Amendment violation. See id. at 65, 79. 

3. a. A divided panel of the Fourth Circuit reversed. Pet. 
App. 25-46. Then the court of appeals granted rehearing en 
banc, vacated the initial panel decision, and by a 7-3 decision 
affirmed the denial of habeas relief. Id. at 1-24. The en banc 
court assumed for purposes of its analysis “that Judge 
Foster * * * reasonably should have known that Saunders 
labored under a potential conflict of interest arising from his 
previous representation of Hall.” Id. at 10. But the court 
rejected petitioner’s argument that that judicial lapse alone 
“mandates automatic reversal of his conviction.” Ibid. 

The en banc court recognized that in Holloway v. Arkan- 
sas, 435 U.S. 475 (1978), this Court held that automatic re- 
versal of a conviction is required under the Sixth Amend- 
ment when a trial court fails to inquire into a potential 
conflict “in the face of repeated representations” by defense 
counsel that he is burdened by a conflict. Pet. App. 11. The 
court held, however, that Holloway’s automatic-reversal 
rule does not govern where, as here, defense counsel does 
not object to any conflict at trial. Ibid. In that context, the 
court reasoned, the rule of Cuyler v. Sullivan controls. “[A] 
defendant who raised no objection at trial must demonstrate 
that an actual conflict of interest adversely affected his law- 
yer’s performance.” Ibid. (quoting 446 U.S. at 348). 

The en banc court rejected petitioner’s argument “that a 
footnote in Wood v. Georgia changed the rule of Sullivan and 

6 

extended the automatic reversal rule of Holloway to circum- 
stances in which a trial court ignores a conflict about which it 
reasonably should have known.” Pet. App. 11-12. The court 
further rejected petitioner’s alternative argument that, 
“even if Wood does not compel automatic reversal of his con- 
viction, it relieves him of his burden under Sullivan of 
establishing an adverse effect on his representation.” Id. at 

13. As the court explained, that argument is contradicted by 
the Court’s decision in Wood, as well as subsequent Supreme 
Court decisions reciting the Sullivan rule without suggest- 
ing that it had been altered by Wood. Id. at 13-14. 

Finally, the en banc court rejected petitioner’s argument 
“that the district court erred in deciding that any actual con- 
flict of interest did not adversely affect [the] representa- 
tion.” Pet. App. 14. To establish the requisite “adverse 
effect,” the court stated, a defendant “must identify a plausi- 
ble alternative defense strategy or tactic” not pursued by 
counsel; “show that [that] strategy or tactic was objectively 
reasonable”; and “establish that the defense counsel’s failure 
to pursue that strategy or tactic was linked to the actual 
conflict.” Id. at 15. The en banc court agreed with the dis- 
trict court’s “complete, thorough, and thoughtful” considera- 
tion of that issue, id. at 14, and held that petitioner had failed 
to show that the asserted conflict on Saunders’ part, even if 
real, had any adverse effect on the representation. Id. at 16. 
Because it found no adverse effect, the court did not decide 
whether an actual conflict in fact existed. Id. at 9. 

b. Judge Michael, joined by two other judges, dissented. 
Pet. App. 18-24. They believed that Holloway, Sullivan, and 
Wood establish that “[w]hen a trial judge ignores an appar- 
ent conflict, a defendant need only show that his lawyer 
labored under an actual conflict to establish a Sixth Amend- 
ment claim”; “[t]he defendant is not required to show that 
the actual conflict adversely affected his lawyer’s perform- 
ance.” Id. at 18. Moreover, they considered that rule neces- 

7 

sary to “encourage[] trial courts to pay strict attention to 
fundamental rights.” Id. at 23. Because the dissenters 
believed that Saunders had an actual conflict of interest, 
they would have “award[ed] [petitioner] a writ of habeas 
corpus unless the Commonwealth of Virginia grants him a 
new trial,” without requiring petitioner to show any adverse 
effect stemming from the conflict. Id. at 24. 

SUMMARY OF ARGUMENT 

A. The Sixth Amendment is not violated when a trial 
court fails to inquire on its own initiative into a potential con- 
flict of interest about which it reasonably should have 
known, unless the defendant shows both an actual conflict 
and an adverse effect. The Sixth Amendment guarantee of 
effective assistance of counsel does not exist for its own sake, 
but instead to protect the integrity of the trial process. Un- 
less a defendant shows that an alleged deficiency in counsel’s 
performance resulted in prejudice, the Sixth Amendment 
guarantee generally is not implicated. The Court has held 
that prejudice may be presumed when defense counsel is 
burdened by a conflict, but “only if the defendant demon- 
strates that counsel ‘actively represented conflicting inter- 
ests’ and that ‘an actual conflict of interest adversely af- 
fected his lawyer’s performance.’ ” Strickland v. Washing- 
ton, 466 U.S. 668, 692 (1984). That settled rule governs the 
Sixth Amendment claim at issue in this case. 

B. The court of appeals correctly concluded that this 
Court’s decisions do not relieve a defendant of the burden of 
showing an adverse effect on the representation when a trial 
court fails to inquire into a possible conflict about which it 
should have known. When counsel objects at trial that the 
defense is burdened by a conflict, and the trial court fails to 
take appropriate corrective action, the Court has held that 
automatic reversal is warranted under the Sixth Amend- 
ment. Holloway v. Arkansas, 435 U.S. 475 (1978). The 

8 

Court has explained that an attorney’s own objection that he 
is laboring under a conflict is persuasive evidence that the 
representation has been or will be impaired. Moreover, 
prejudice may inhere in forcing an attorney to continue with 
a representation over his own objection that he is conflicted. 

But when no objection is raised at trial, the Court has held 
that a defendant must show that “an actual conflict of inter- 
est adversely affected his lawyer’s performance.” Cuyler v. 
Sullivan, 446 U.S. 335, 350 (1980). The Court has repeatedly 
recited Sullivan’s two-pronged inquiry in discussing the 
Sixth Amendment guarantee in the conflict-of-interest con- 
text. Wood v. Georgia, 450 U.S. 261 (1981), does not elimi- 
nate the requirement of showing an adverse effect when a 
trial court fails to inquire on its own initiative into an 
apparent conflict. The Wood Court never suggested that it 
was altering the rule of Sullivan and, indeed, its decision 
reflects that the Court looked not only to whether an “actual 
conflict of interest existed,” but also to whether “counsel was 
influenced in his basic strategic decisions” by such a conflict. 
Id. at 272-273. That approach comports with the common- 
sense understanding that an “actual conflict,” as opposed to a 
technical or theoretical conflict, is a conflict that does 
adversely affect the representation. 

C. The Sullivan rule is well-founded and should be reaf- 
firmed in this case. Requiring a defendant who does not 
object to any conflict at trial to show both an actual conflict 
and an adverse effect to prove a Sixth Amendment violation 
on collateral review squares with the principle that the 
Constitution only protects against deficiencies in counsel’s 
performance that in fact prejudice the defense. Holloway is 
not to the contrary. Whereas an attorney’s own objection 
that his hands are tied by a conflict is itself compelling 
evidence that a conflict has impeded the defense, the absence 
of such an objection suggests that there was no actual 
conflict, or at least that counsel did not feel constrained by 

9 

any conflict in undertaking the defense. Moreover, the risk 
of prejudice is much greater where, as in Holloway, the 
asserted conflict stems from the joint or simultaneous repre- 
sentation of conflicting interests, a concern not present here. 

The principal reason that petitioner gives for dispensing 
with Sullivan’s adverse-effect requirement in this case is 
that the trial court should have known about the conflict and 
inquired into it. But that approach would give Sixth Amend- 
ment claimants a potential “windfall” based solely on 
whether there was a judicial lapse. The Court has declined 
to afford defendants such a windfall under the Sixth Amend- 
ment. E.g., Lockhart v. Fretwell, 506 U.S. 364 (1993). More- 
over, the state of the record that exists in a collateral pro- 
ceeding to determine whether an alleged conflict adversely 
affected the defense is the same when a defendant does not 
object at trial, regardless of whether the trial court should 
have inquired into the conflict. Nor is there any reason to 
adopt petitioner’s rule to encourage trial courts to protect 
Sixth Amendment rights. State courts already are sworn 
under the Constitution to protect those rights. 

Petitioner’s approach also would invite manipulation of 
conflict-of-interest claims. Whereas the dichotomy created 
between Holloway’s automatic-reversal rule for when a 
defendant does object at trial and Sullivan’s rule for when a 
defendant does not object establishes an incentive for defen- 
dants to bring potential conflicts to the attention of the trial 
court, petitioner’s rule would do the opposite: a defendant 
who knows about a possible conflict and does not object to it 
could secure reversal of a conviction on collateral review 
merely by showing that a conflict existed, and that the trial 
court should have inquired into it. Petitioner’s rule also 
would unduly complicate the Sixth Amendment inquiry on 
collateral review by adding a mixed question of law and fact 
concerning whether the trial court knew, or should have 
known, about an alleged conflict. 

10 

D. The Court should reject petitioner’s contention that, 
even if he is required to show an adverse effect, the court of 
appeals erred in requiring him to show a link between the 
alleged deficiency in counsel’s performance and the alleged 
conflict. The Sullivan inquiry focuses on whether the al- 
leged conflict impaired the representation, and not simply on 
whether the representation was deficient. The latter consid- 
eration is the focus of the typical Strickland claim and may 
be pressed as such. To establish a Sixth Amendment viola- 
tion based on an alleged conflict of interest, a defendant must 
show not only that a conflict actually existed, but also that 
counsel’s failure to pursue a viable alternative defense or 
strategy resulted from that conflict. 

ARGUMENT 

THE SIXTH AMENDMENT IS NOT VIOLATED 

WHEN A TRIAL COURT FAILS TO INQUIRE INTO A 
POTENTIAL CONFLICT OF INTEREST ABOUT 
WHICH IT REASONABLY SHOULD HAVE KNOWN, 

UNLESS A DEFENDANT SHOWS AN ACTUAL CON- 
FLICT THAT ADVERSELY AFFECTED COUNSEL’S 
PERFORMANCE 

A. The Constitution Only Protects Against Deficien- 
cies In Counsel’s Performance That Prejudice 
The Defense 

The Sixth Amendment provides that “[i]n all criminal 
prosecutions, the accused shall enjoy the right * * * to 
have the Assistance of Counsel for his defence.” That right 
is “fundamental to our system of justice.” United States v. 
Morrison, 449 U.S. 361, 364 (1981); see Strickland v. Wash- 
ington, 466 U.S. 668, 685 (1984); Gideon v. Wainwright, 372 
U.S. 335, 344 (1963). As this Court has explained, “[l]awyers 
in criminal cases ‘are necessities, not luxuries.’ Their pres- 
ence is essential because they are the means through which 
the other rights of the person on trial are secured.” United 

11 

States v. Cronic, 466 U.S. 648, 653 (1984) (footnote omitted). 
Further, “[t]he right to counsel plays a crucial role in the 
adversarial system embodied in the Sixth Amendment, since 
access to counsel’s skill and knowledge is necessary to accord 
defendants the ‘ample opportunity to meet the case of the 
prosecution’ to which they are entitled.” Strickland, 466 
U.S. at 685. 
“[T]he right to the effective assistance of counsel is recog- 
nized not for its own sake, but because of the effect it has on 
the ability of the accused to receive a fair trial.” Lockhart v. 
Fretwell, 506 U.S. 364, 369 (1993) (quoting Cronic, 466 U.S. 
at 658). As a result, the Court has repeatedly emphasized 
that, “[a]bsent some effect of challenged conduct on the 
reliability of the trial process, the Sixth Amendment guaran- 
tee is generally not implicated.” Ibid.; see Strickland, 466 
U.S. at 686; Kimmelman v. Morrison, 477 U.S. 365, 374 
(1986); Nix v. Whiteside, 475 U.S. 157, 175 (1986); United 
States v. Morrison, 449 U.S. at 364-365. In short, “any defi- 
ciencies in counsel’s performance must be prejudicial to the 
defense in order to constitute ineffective assistance under 
the Constitution.” Strickland, 466 U.S. at 692. 

Prejudice is always required to establish a violation of the 
Sixth Amendment right to counsel. In three specific con- 
texts, however, this Court has held that prejudice may be 
presumed. The first two contexts involve cases in which a 
defendant is actually or constructively denied counsel. 
Smith v. Robbins, 528 U.S. 259, 287 (2000); see Cronic, 466 
U.S. at 659 n.25. The Court has explained that “[p]rejudice 
in these circumstances is so likely that case-by-case inquiry 
into prejudice is not worth the cost.” Strickland, 466 U.S. at 
692. In addition, “such circumstances involve impairments of 
the Sixth Amendment right that are easy to identify and, for 
that reason and because the prosecution is directly responsi- 
ble, easy for the government to prevent.” Ibid. 

12 

The other context in which the Court has held that 
prejudice may be presumed involves cases in which “counsel 
is burdened by an actual conflict of interest.” Robbins, 528 
U.S. at 287. As the Court explained in Strickland, however, 
the presumption of prejudice in that context is “more 
limited” than in the context of the actual or constructive 
denial of counsel. 466 U.S. at 692; see ibid. (“[T]he rule is not 
quite the per se rule of prejudice that exists for the Sixth 
Amendment claims mentioned above.”). “Prejudice is pre- 
sumed only if the defendant demonstrates that counsel 
‘actively represented conflicting interests’ and that ‘an ac- 
tual conflict of interest adversely affected his lawyer’s per- 
formance.’ ” Ibid. (quoting Cuyler v. Sullivan, 446 U.S. 335, 
350 (1980)); see Robbins, 528 U.S. at 287 (“ ‘[P]rejudice is 
presumed when counsel is burdened by an actual conflict of 
interest,’ although in such a case we do require the defen- 
dant to show that the conflict adversely affected his counsel’s 
performance”) (citation omitted); cf. Holloway v. Arkansas, 
435 U.S. 475 (1978).2 

Petitioner argues that this Court’s precedents establish a 
more accommodating rule for evaluating Sixth Amendment 
claims when a trial court fails to inquire into a potential 
conflict of interest about which it reasonably should have 
known. In that context, petitioner claims (at 25) that “[n]o 
showing of ‘adverse effect’ is required.” As explained below, 
this Court’s decisions do not support that contention.3 

2 As discussed below (pp. 13-14), in Holloway, the Court found a Sixth 
Amendment violation based on an attorney’s own objections that he was 
burdened by a conflict of interest in undertaking a joint representation of 
multiple defendants. The Strickland Court did not address Holloway in 
discussing the Sixth Amendment inquiry for conflict-of-interest cases. 

3 The Sixth Amendment principles discussed above apply in the same 
fashion in capital cases, and to capital sentencing proceedings. See Strick- 
land, 466 U.S. at 686-687. Indeed, several of this Court’s decisions in- 
volving claims of ineffective assistance of counsel arose from capital cases, 

13 

B. Under This Court’s Precedents, A Trial Court’s Failure 

To Inquire Into An Apparent Conflict To Which The 

Defendant Did Not Object Does Not Eliminate The 

Need To Show An Actual Conflict Adversely Affecting 

The Representation 

Petitioner’s argument that prejudice should be presumed 
without any inquiry into whether the alleged conflict ad- 
versely affected counsel’s performance is grounded on his 
reading of the trio of Holloway v. Arkansas, 435 U.S. 475 
(1978), Cuyler v. Sullivan, 446 U.S. 335 (1980), and Wood v. 
Georgia, 450 U.S. 261 (1981). The court of appeals correctly 
held that those precedents, along with subsequent decisions 
such as Strickland, require petitioner to show “both an 
actual conflict and an adverse effect” to establish a violation 
of his Sixth Amendment rights. Pet. App. 11. 

1. a. In Holloway, a public defender was appointed to 
represent three defendants who were tried together on the 
same robbery and rape charges. Before trial, the public 
defender moved for appointment of separate counsel, assert- 
ing that his clients had potentially conflicting interests. The 
trial court denied that motion. The attorney renewed his 
objection on the eve of trial and again during the midst of 
trial, explaining that the conflicting interests of his clients 
would prevent him from fully examining, or cross-examining 
the codefendants when they took the stand to testify in their 
own defense. See 435 U.S. at 478. The trial court declined to 
take corrective action. The jury convicted all three defen- 
dants. On appeal, they “claim[ed] that their representation 
by a single appointed attorney, over their objection, violated 
[the Sixth Amendment].” Id. at 481. This Court agreed. 

including Strickland itself. See also, e.g., Lockhart v. Fretwell, supra; 
Burger v. Kemp, 483 U.S. 776, 783 (1987). Petitioner here does not rely 
upon the capital nature of this case, or the Eighth Amendment, in arguing 
that he is entitled to relief under the Sixth Amendment. 

14 

Holloway held that “whenever a trial court improperly 
requires joint representation over timely objection reversal 
is automatic.” 435 U.S. at 488. Prejudice is presumed with- 
out requiring a showing that the conflict adversely affected 
the representation. In so holding, the Court observed that 
defense counsel’s timely objection to a conflict is itself “per- 
suasive” evidence of a Sixth Amendment violation because 
counsel “in a criminal matter is in the best position profes- 
sionally and ethically to determine when a conflict of interest 
exists or will probably develop.” Id. at 485-486. Moreover, 
attorneys must act with candor as “officers of the court,” 
lending additional weight to such an objection. Ibid. 

The Court also stated that prejudice inheres in requiring a 
defense attorney to proceed with a joint representation over 
his own objection that he is burdened by a conflict. The 
Court derived that principle from Glasser v. United States, 
315 U.S. 60, 75-76 (1942), which the Court read as “presup- 
pos[ing] that * * * joint representation, over [defense 
counsel’s] express objections, prejudiced the accused in some 
degree.” 435 U.S. at 489. Finally, the Court observed that 
“a rule requiring a defendant to show that a conflict of 
interests—which he and his counsel tried to avoid by timely 
objections to the joint representation—prejudiced him in 
some specific fashion would not be susceptible of intelligent, 
evenhanded application.” Id. at 490.4 

4 In Holloway, the Court theorized about how a conflict of interest 
could impair an attorney’s performance in the joint-representation con- 
text, see 435 U.S. at 490, but did not make any finding on impairment. In 
his dissent, Justice Powell questioned the Court’s reliance on Glasser in 
that regard, pointing out that Glasser looked for “record support for 
[defendent’s] claim of ‘impairment’ of his Sixth Amendment right to assis- 
tance of counsel.” Id. at 492 (Powell, J., joined by Blackmun and 
Rehnquist, JJ.). At the same time, the record in Holloway established 
that the asserted conflict prevented counsel from fully examining or cross- 
examining his clients at trial. See id. at 478-480. 

15 

b. In Sullivan, the Court considered what is required to 
prove a Sixth Amendment violation when a defendant does 
not object to any conflict of interest at trial. Two lawyers 
represented three defendants who were charged with the 
same murders and tried separately. Sullivan was tried first 
and convicted. Neither Sullivan nor his lawyers objected to 
any conflict at trial. When his codefendants were subse- 
quently acquitted, however, Sullivan collaterally attacked 
his conviction on the ground that he was “denied effective 
assistance of counsel because his defense lawyers repre- 
sented conflicting interests.” 446 U.S. at 338. The court of 
appeals held that just as in Holloway, the possibility of a 
conflict was “sufficient to prove a violation of Sullivan’s Sixth 
Amendment rights.” Id. at 340. This Court reversed. 

The Court explained that in Holloway “[t]he trial court 
refused to consider the appointment of separate counsel 
despite the defense lawyer’s timely and repeated assertions 
that the interests of his clients conflicted.” 446 U.S. at 345. 
“[A] lawyer forced to represent codefendants whose inter- 
ests conflict cannot provide the adequate legal assistance 
required by the Sixth Amendment.” Ibid. (emphasis added). 
To help protect against such a failure, “Holloway requires 
state trial courts to investigate timely objections to multiple 
representations.” Id. at 346. The Sullivan Court added 
that, “[u]nless the trial court knows or reasonably should 
know that a particular conflict exists, the court need not 
initiate an inquiry,” and found that the facts in Sullivan did 
not trigger any such duty to inquire. Id. at 347. 

The Sullivan Court recognized that the equation changes 
when a defendant does not object to any conflict at trial. 
When a trial court does not “fail[] to afford” a defendant “the 
opportunity to show that potential conflicts impermissibly 
imperil his right to a fair trial * * *, a reviewing court 
cannot presume that the possibility for conflict has resulted 
in ineffective assistance.” 446 U.S. at 348. Accordingly, the 

16 

Court held that, “[i]n order to establish a violation of the 
Sixth Amendment, a defendant who raised no objection at 
trial must demonstrate that an actual conflict of interest 
adversely affected his lawyer’s performance.” Ibid. 

c. Wood also involved a situation in which there was no 
objection to any conflict at trial. The Court granted certio- 
rari in Wood to consider whether a state court improperly 
revoked the probations of three codefendants who were 
convicted of distributing obscene materials, simply because 
they had failed to pay fines imposed as part of their 
sentences. 450 U.S. at 264. After granting certiorari, the 
Court discovered that a possible conflict could have infected 
the lower court proceedings. The defendants’ lawyer had 
been furnished by their employer, and was an agent of that 
employer. At the same time, the defendants’ employer, 
which had initially agreed to pay any fines incurred by 
defendants, declined to pay the fines that had resulted in 
revocation of defendants’ probation. See id. at 266-267. 
Rather than decide the question on which it granted cer- 
tiorari, the Court considered whether due process required 
that the defendants be afforded another revocation hearing 
untainted by any conflict in representation.5 The Court 
stated that “[o]n the record before us, we cannot be sure 
whether counsel was influenced in his basic strategic deci- 
sions by the interests of the employer who hired him.” 450 
U.S. at 272 (emphasis added). But while the Court was 
unable to determine “whether an actual conflict of interest 
was present,” it found that “the possibility of a conflict of 
interest was sufficiently apparent at the time of the revo- 

5 The Court did not consider that issue under the Sixth Amendment 
because the case before the Court involved a challenge only to the defen- 
dants’ “probation revocations,” and not to their underlying convictions. 
See 450 U.S. at 274 n.21. 

17 

cation hearing to impose upon the court a duty to inquire 
further.” Ibid. 

That potential conflict, the Court concluded, required that 
the judgment be vacated and the case remanded to the state 
courts for a determination “whether the conflict of interest 
that this record strongly suggests actually existed at the 
time of the probation revocation or earlier.” 450 U.S. at 273. 
The Court added that, if the state court finds that “an actual 
conflict of interest existed at that time,” then due process 
would require that the defendants be afforded a new revo- 
cation hearing. Id. at 273-274. 

2. Petitioner argues (at 23) that Wood establishes that 
when a trial court fails to inquire into a potential conflict 
about which it reasonably should have known, a defendant 
“is entitled to a new trial upon the showing of an actual 
conflict of interests without more.” The court of appeals 
correctly rejected that argument and held that “Wood does 
not relieve [petitioner] of showing an adverse effect” under 
the inquiry established by Sullivan. Pet. App. 14.6 

a. The Wood Court never stated that it was establishing 
a new standard for determining when a Sixth Amendment 
violation exists because of a potential conflict about which 
the defendant did not object at trial. Indeed, far from 
purporting to make new Sixth Amendment law, the Wood 
Court expressly grounded its decision on principles of “due 

6 In the court of appeals, petitioner also advanced the more extrava- 
gant argument that “Wood v. Georgia changed the rule of Sullivan and 
extended the automatic reversal rule of Holloway to circumstances in 
which a trial court ignores a conflict about which it reasonably should have 
known.” Pet. App. 11. The Fourth Circuit properly rejected that argu- 
ment as well. See id. at 11-13. That conclusion follows a fortiori from the 
reasons that we state below for rejecting petitioner’s narrower reading of 
Wood. Petitioner has not renewed his “automatic reversal” argument in 
this Court, and instead now acknowledges that to prevail he must at a 
minimum show an actual conflict. 

18 

process.” 450 U.S. at 273. Moreover, although the Wood 
Court cited Holloway and Sullivan, see id. at 271-272 & n.18, 
the Court never stated that it was altering or overriding the 
framework established by those decisions, or that it was 
dispensing with the requirement of showing an adverse 
effect because the trial court failed to inquire into an appar- 
ent conflict. As the court of appeals observed below, “[o]ver- 
ruling by implication is not favored.” Pet. App. 13. This 
Court should be especially loathe to conclude that Wood sub 
silentio altered the rule of Sullivan when the Court decided 
the conflict-of-interest issue in Wood “without the benefit of 
briefing and argument.” 450 U.S. at 272. 

b. In arguing that Wood dispensed with Sullivan’s 
adverse-effect prong, petitioner relies (at 27-28) on the dis- 
positional paragraph of Wood, emphasizing that in vacating 
and remanding the Court directed the state courts to con- 
sider whether “an actual conflict existed.” 450 U.S. at 273. 
As the court of appeals explained, however, “[t]he Wood 
Court’s instruction to the trial court amounts to no more 
than shorthand for [the] explicit two-part test [of Sullivan].” 
Pet. App. 14. Indeed, in considering “whether an actual 
conflict of interest was present,” the Wood Court looked to 
“whether counsel was influenced in his basic strategic 
decisions by the interests of the employer who hired him.” 
450 U.S. at 272 (emphasis added). 

In other words, as the court of appeals reasoned, the 
Wood decision indicates that the “Court used the term 
‘actual conflict’ to refer to a conflict of interest that has 
adversely affected defense counsel’s ‘basic strategic deci- 
sions.’ ” Pet. App. 14 (quoting 450 U.S. at 272). That ap- 
proach tracks the inquiry established by Sullivan. More- 
over, it squares with the common-sense understanding that 
an “actual conflict,” as opposed to a technical or hypothetical 
conflict, is a conflict that does adversely affect counsel’s 
performance. See Black’s Law Dictionary 33 (5th ed. 1979) 

19 

(“Actual” means “[r]eal; substantial; existing presently in 
act; having a valid objective existence as opposed to that 
which is merely theoretical or * * * possible, virtual, 
theoretical, hypothetical, or nominal.”).7 

The First Circuit read Wood in the same terms in Brien v. 
United States, 695 F.2d 10 (1982). Brien involved a federal 
habeas claim that a defendant was denied effective assis- 
tance of counsel because his counsel was burdened by a 
conflict of interest into which the trial court should have 
inquired. In rejecting that claim, the court first stated that 
to satisfy the Sullivan standard “the conflict must be real, 
not some attenuated hypothesis having little consequence to 
the adequacy of representation.” Id. at 15. The court then 
noted that Wood did not alter that inquiry. Id. at 15 n.10. 
The court added that “to establish an actual conflict of inter- 
est,” a defendant must prove that counsel failed to pursue a 
“plausible alternative defense strategy” that was “inherently 
in conflict with the attorney’s other loyalties or interests.” 
Id. at 15. In other words, the defendant must show “an 
actual conflict of interest that adversely affected [his] repre- 
sentation.” Id. at 16.8 

7 That understanding is also supported by the fact that Sullivan did 
not state the pertinent inquiry in the conjunctive, but instead stated that a 
defendant “must establish that an actual conflict of interest adversely 
affected his lawyer’s performance.” 446 U.S. at 350. The Sullivan stan- 
dard may be more easily applied, or readily understood, when stated in 
the conjunctive fashion used by the Court in framing the question pre- 
sented in this case. But at the same time, the requirement of an actual 
conflict and of an adverse effect on the representation are complementary 
components of the same inquiry. 

8 Other courts have read Wood in a similar fashion. See, e.g., Mount- 
joy v. Warden, 245 F.3d 31, 39-40 (1st Cir. 2001), petition for cert. pending, 
No. 00-10683 (filed June 18, 2001); United States v. Burney, 756 F.2d 787, 
794 (10th Cir. 1985); but see Ciak v. United States, 59 F.3d 296, 302 (2d 
Cir. 1995) (interpreting Wood to “require[] reversal where a trial court 
neglects its duty to inquire about a particular conflict”). 

20 

c. Petitioner points (at 28) to the dictum in footnote 18 of 
Wood that “Sullivan mandates a reversal when the trial 
court has failed to make an inquiry even though it ‘knows or 
reasonably should know that a particular conflict exists.’ ” 
450 U.S. at 272 n.18. As the court of appeals below 
explained, however, that dictum does not override the rule of 
Sullivan either. Pet. App. 12-13. Footnote 18 is explicitly 
addressed to Justice White’s dissent, which argued that the 
Court lacked jurisdiction to decide the due process issue in 
Wood. See 450 U.S. at 281. “Reading that footnote to re- 
quire reversal in each case in which the trial court has failed 
to make an inquiry when it might know or should know of a 
conflict * * * leads to an application of the footnote * * * 
beyond that which was intended.” Pet. App. 13. 

Indeed, petitioner’s reading is contradicted by the result 
in Wood. Although the Wood Court found that the trial 
court “should have been aware” of the potential conflict, the 
Court did not simply reverse the judgment but instead 
vacated and remanded for further consideration of whether 
“an actual conflict of interest existed.” 450 U.S. at 272-273; 
see Brien, 695 F.2d at 15 n.10 (rejecting the argument that 
under Wood a “trial court’s failure to inquire about potential 
conflicts in and of itself requires a reversal”). Furthermore, 
construing footnote 18 as dispensing with the adverse-effect 
requirement would be inconsistent with the focus in the 
Court’s decision on whether the alleged conflict “influenced 
[counsel] in his basic strategic decisions.” 450 U.S. at 272. 

d. Petitioner’s argument that Wood created a new rule 
that dispenses with Sullivan’s adverse-effect requirement 
also is belied by this Court’s subsequent decisions. In the 
wake of Wood, this Court has repeatedly invoked the Sulli- 
van standard in considering or discussing whether a Sixth 
Amendment violation exists based on a possible conflict of 
interest. See Strickland, 466 U.S. at 692; Burger v. Kemp, 
483 U.S. 776, 783 (1987); Perry v. Leeke, 488 U.S. 272, 280 

21 

(1989); Burden v. Zant, 510 U.S. 132, 134 (1994); Robbins, 
528 U.S. at 287.9 In each of those cases, the Court 
recognized that its precedents “do require the defendant to 
show that the conflict adversely affected his counsel’s 
performance.” 528 U.S. at 287 (emphasis added). Although 
the Court has not explicitly addressed the interrelationship 
between Sulliv an and Wood, the fact that it has never 
pointed to Wood as having established a different standard 
for apparent conflict cases in which no objection is made (or 
otherwise indicated that such a standard exists) provides 
further reason to reject petitioner’s central proposition that 
the Court established such an independent inquiry in Wood. 

C. The Requirement That A Defendant Who Does Not 

Object At Trial Must Show Both An Actual Conflict 
And An Adverse Effect To Establish A Sixth Amend- 
ment Violation Is Well-Founded And Should Be 
Reaffirmed In This Case 

The Court should reject petitioner’s invitation to dispense 
with Sullivan’s adverse-effect requirement in this case. 

1. Requiring a defendant who does not object to any 
conflict of interest at trial to show an adverse effect on the 
representation is consistent with the basic understanding 
that, “ [a]bsent some effect of challenged conduct on the 
reliability of the trial process, the Sixth Amendment guaran- 
tee is generally not implicated.” Lockhart, 506 U.S. at 369; 
see p. 11, supra. As the court of appeals below observed, 
under petitioner’s rule “even a defense as brilliant as that of 

9 In Bonin v. California, 494 U.S. 1039, 1043 (1990), Justice Marshall, 
joined by Justice Brennan, dissented from the denial of certiorari. They 
objected that the Court should have granted certiorari in that case “to 
decide whether a criminal defendant denied the right to conflict-free 
counsel must show that the conflict adversely affected his attorney’s 
performance.” In addition, they argued that “Strickland’s reading of 
Sullivan * * * is at odds with the holding in Wood,” and that “a showing 
of actual conflict alone necessitates a new trial.” Id. at 1043, 1046. 

22 

[Lord] Erskine would be impossible to justify if a technical 
conflict existed which had no effect on the performance.” 
Pet. App. 18 n.7. Focusing exclusively on whether a conflict 
existed, without regard to whether such a conflict had any 
adverse effect on the representation, would expand the Sixth 
Amendment guarantee beyond its constitutional mooring. 

Holloway is not to the contrary. Defense counsel in that 
case “repeated[ly]” objected “that the interests of his clients 
conflicted,” but the trial court nonetheless “forced” him to 
proceed with the representation. Sullivan, 446 U.S. at 345. 
This Court concluded in Holloway that several considera- 
tions support a per se rule of prejudice in that context, 
perhaps foremost among which is that a lawyer’s own 
representation that he is burdened by a conflict is compelling 
evidence that a conflict is impairing or will impair the 
defense. See 435 U.S. at 485-486 & n.9; Pet. App. 11. That is 
particularly true in the joint-representation context in which 
Holloway arose. See note 10, infra. 

Moreover, as the Court reiterated in Sullivan, prejudice 
inheres in “forc[ing]” an attorney to represent a defendant 
over his own objection that he is burdened by a conflict that 
will impair his defense. 446 U.S. at 345. That was certainly 
true in Holloway, where counsel repeatedly advised the trial 
court that the conflicting interests of his client-codefendants 
would prevent him from fully examining, or if necessary 
cross-examining, them when they took the stand to testify at 
trial. See 435 U.S. at 478-481. Indeed, in Holloway, defense 
counsel’s belief that he was burdened by a conflict cir- 
cumscribed his examination of the codefendants in a manner 
that this Court has held amounts to the constructive denial 
of counsel altogether. See Cronic, 466 U.S. at 659 (citing 
Davis v. Alaska, 415 U.S. 308, 318 (1974)). 

By contrast, when defense counsel does not bring a 
potential conflict to the trial court’s attention, there is no 
basis for presuming that a conflict existed or, even if so, that 

23 

a conflict actually impaired the defense. Just as an objection 
is persuasive evidence that an attorney is in fact laboring 
under a perceived conflict that will impede the representa- 
tion, the absence of an objection suggests the opposite. An 
attorney’s silence indicates that no conflict of interest 
existed, or at least that he believed that any technical 
conflict would not adversely effect his representation. Thus, 
in Sullivan, the Court explained that in the absence of a 
timely objection it was reasonable for a court to “assume 
either that multiple representation entails no conflict or that 
the lawyer and his clients knowingly accept such risk of 
conflict as may exist.” 446 U.S. at 347. Moreover, it is less 
likely that prejudice will inhere when counsel has not been 
“forced” to proceed with a representation over his timely 
objection that he is conflicted. 

This case illustrates the problem with petitioner’s rule. In 
contrast to Holloway, there is no objective indication in the 
trial record that petitioner’s counsel believed that he was 
laboring under a conflict of interest. Indeed, the district 
court found that “Saunders did not believe that any ‘continu- 
ing duties to a former client might interfere with his 
consideration of all facts and options for his current client.’ ” 
Pet. App. 69 (internal brackets omitted). Moreover, to the 
extent that a technical conflict existed, it was based on a 
prior representation of an individual on unrelated charges 
that lasted for eight days, consisted of one 15-to-30 minute 
meeting, and did not involve the exchange of any confidential 
information relevant to petitioner’s case. See id. at 68-69. 
Yet petitioner’s rule would require a court to presume 
prejudice based solely on the existence of a technical conflict 
due to the prior representation. Nothing in this Court’s 
precedents compels that counter-intuitive result. 

10 

10 The argument for presuming prejudice without any showing of an 
adverse effect is also problematic in light of the nature of the alleged con- 

24 

2. While petitioner does not take issue with Sullivan, he 
argues (at 29) that its adverse-effect prong is inapplicable 
when the trial court fails to inquire into an apparent conflict. 
Thus, under petitioner’s approach, defendants would receive 
a “windfall” for purposes of the Sixth Amendment when a 
trial court neglects to inquire into a conflict it should have 
discovered. The same conflict of interest could produce two 
different results under the Sixth Amendment, depending on 
whether one trial judge or another presided over the trial, 
since a defendant who draws a judge who does not inquire 
into the conflict would be entitled to reversal without having 
to show any adverse effect. This Court has previously 
declined to accord defendants such a windfall under the 
Sixth Amendment, see Lockhart, 506 U.S. at 369-370; Nix, 
475 U.S. at 175 (“[I]n judging prejudice and the likelihood of 
a different outcome, ‘[a] defendant has no entitlement to the 
luck of a lawless decisionmaker.’ ”), and for good reason. 

flict. The possible conflict in Holloway, Sullivan, and Wood arose from a 
lawyer’s simultaneous representation of multiple clients or interests. The 
risk that a possible conflict will prejudice the defense is particularly great 
in that context. See United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 
1991). Thus, the Federal Rules of Criminal Procedure impose a duty on 
federal courts to inquire into the existence of a conflict in the joint rep- 
resentation context, but in no other context. See Fed. R. Crim. P. 44(c); 
Wheat v. United States, 486 U.S. 153, 161 (1988). The alleged conflict in 
this case did not entail the joint or simultaneous representation of 
conflicting interests, but rather a successive representation on unrelated 
charges and, even then, one in which the prior client was deceased. The 
risk that such a conflict, even if real, would adversely affect the current 
representation is much less severe than in the simultaneous representa- 
tion context. Indeed, in this case, Saunders could have provided petitioner 
with the best possible defense without compromising the defense of his 
deceased prior client in any way. Thus, application of Sullivan’s adverse- 
effect prong is particularly appropriate outside the joint or simultaneous 
representation context to determine whether an alleged conflict violated a 
defendant’s Sixth Amendment rights. 

25 

From the standpoint of ensuring that a defendant receives 
a fair trial, there is no more reason to presume a Sixth 
Amendment violation when a defendant fails to object to a 
conflict about which the trial court should have known than 
when a defendant fails to object to a conflict about which the 
court could not have known. In either case, the potential 
conflict is what threatens the integrity of the trial process 
and is the predicate for the Sixth Amendment claim. Like- 
wise, the state of the record that exists in a collateral pro- 
ceeding to determine whether a conflict existed and, if so, 
whether it actually infected the proceedings will be the same 
when a defendant does not object at trial, regardless of 
whether the trial court had any reason to know about the 
conflict. In either case, a court subsequently may take and 
evaluate evidence on whether an alleged conflict existed and 
impaired the representation, as the district court thoroughly 
did here. See Pet. App. 67-76. Such an inquiry fully suffices 
to vindicate the Sixth Amendment right. 

The dissent below urged that an automatic-reversal rule is 
necessary to “encourage[] trial courts to pay strict attention 
to fundamental rights.” Pet. App. 23. But the Constitution 
already obligates state judges to abide by and protect those 
rights. U.S. Const. Art. VI. There is no reason for this Court 
to adopt petitioner’s per se rule on the assumption that addi- 
tional incentives are necessary to ensure that state courts 
fully honor that duty. Cf. Brecht v. Abrahamson, 507 U.S. 
619, 636 (1993). Nor is there any reason to adopt petitioner’s 
rule to ensure that federal judges abide by their sworn oath 
to defend the Constitution, or their obligation to inquire into 
the existence of a conflict in the case of a joint representation 
under Rule 44(c) of the Federal Rules of Criminal Procedure. 
At the same time, declining to adopt petitioner’s approach 
takes nothing away from this Court’s admonishment in 
Holloway and Sullivan that trial courts should inquire into 
and eliminate potential conflicts when feasible. 

26 

3. Petitioner’s argument for eliminating any inquiry into 
adverse effect when a trial court neglects to inquire into an 
apparent conflict also fails to account for the countervailing 
interests of the State and society at large in preserving final 
criminal convictions. “[W]ithout detracting from the funda- 
mental importance of the right to counsel in criminal cases,” 
this Court’s Sixth Amendment decisions “recognize[] the ne- 
cessity for preserving society’s interest in the administration 
of criminal justice.” Morrison, 449 U.S. at 364. Indeed, the 
standard that this Court adopted in Sullivan, and that it has 
reaffirmed since, for determining when the Sixth Amend- 
ment is violated based on a conflict is specifically grounded 
on that societal interest. See 446 U.S. at 350 (“[T]he possibil- 
ity of conflict is insufficient to impugn a criminal conviction. 
In order to demonstrate a violation of his Sixth Amendment 
rights, a defendant must establish that an actual conflict of 
interest adversely affected his lawyer’s performance.”). 

The potential cost to society of “impugning” convictions 
such as petitioner’s is enormous. The evidence presented at 
trial overwhelmingly established that petitioner was guilty 
of the capital murder of Hall. See p. 2, supra. Granting 
petitioner’s federal habeas petition would require the State 
to release petitioner or retry him. Retrying petitioner could 
prove difficult, not to mention costly, because nearly a 
decade has passed since Hall’s murder. See Brecht, 507 U.S. 
at 637 (“Retrying defendants whose convictions are set aside 

* * * imposes significant ‘social costs.’ ”). At a minimum, 
before the State and its citizens are required to incur that 
cost, petitioner should be required to show that the asserted 
conflict adversely affected his defense. 

4. Petitioner’s rule also could lead to the manipulation of 
conflict-of-interest claims by defendants. The dichotomy 
created by Holloway’s automatic-reversal rule for when a 
defendant does object to a conflict at trial, and Sullivan’s 
rule for when a defendant does not, creates an added 

27 

incentive for the defense to bring any potential conflict to 
the attention of the trial court. By contrast, petitioner’s 
approach—which dispenses with Sullivan’s requirement of 
an adverse effect whenever a trial court fails to inquire into 
an apparent conflict—would provide the defense with a 
disincentive to bring conflicts to the attention of the trial 
court, since remaining silent could afford a defendant with a 
reliable ground for reversal in the event of conviction. If the 
trial court did not discover the conflict, a defendant could 
secure reversal merely by showing that one existed. 

At the same time, petitioner’s approach would unneces- 
sarily complicate the Sixth Amendment inquiry established 
by this Court’s decisions by creating an additional mixed 
question of law and fact for consideration on federal habeas 
review concerning whether the trial court knew, or should 
have known, about a conflict. Particularly when the Consti- 
tution does not command that added inquiry, the Court 
should be reluctant to embrace it. 

D. In Applying The Sullivan Rule, The Court Of Appeals 

Properly Looked For A Link Between The Alleged Con- 
flict And The Alleged Deficiency In Representation 

Petitioner argues (at 46) that, even assuming he is re- 
quired to show an adverse effect as well as an actual conflict, 
the court of appeals misconstrued “the ‘adverse effect’ prong 
of Sullivan.” In particular, petitioner claims (at 46-47) that 
the court erred in focusing on whether counsel’s failure to 
pursue a viable alternative defense or strategy was “linked 
to the actual conflict.” Pet. App. 15. That argument also 
should be rejected. 

The focus of the Sullivan test is whether “an actual con- 
flict of interest adversely affected [the] lawyer’s perform- 
ance,” 446 U.S. at 350 (emphasis added), and not simply 
whether the lawyer’s performance was deficient—the focus 
of the typical Strickland claim. Indeed, Sullivan’s use of the 

28 

verb “affect” underscores that the pertinent inquiry is keyed 
to the conflict. That understanding squares with this Court’s 
focus in Wood on “whether counsel was influenced in his ba- 
sic strategic decisions by the [alleged conflicting] interests,” 
450 U.S. at 272 (emphasis added), as well as with the Court’s 
application of the Sullivan standard in Burger v. Kemp. In 
Kemp, the Court considered whether “an adverse effect re- 
sulted from [the attorney]’s actual conflict of interest,” and 
rejected that contention. 483 U.S. at 787 (emphasis added). 
See also, e.g., Freund v. Butterworth, 165 F.3d 839, 860 (11th 
Cir.), cert. denied, 528 U.S. 817 (1999). 

11 

The Sullivan inquiry does not require a reviewing court 
to ascertain counsel’s subjective motivation for pursuing, or 
declining to pursue, a particular defense or strategy. Sulli- 
van calls for an objective inquiry that first takes account of 
any conflicting interests, and then considers whether an 
attorney’s performance was actually impaired by those inter- 
ests. That inquiry is more searching than the automatic 
presumption of prejudice that this Court has reserved for 
situations in which a defendant has been actually or con- 
structively denied counsel, but it is less taxing than the 
standard for showing prejudice in order to establish a 
violation of the Sixth Amendment in the absence of any 
conflict. See Strickland, 466 U.S. at 694 (“The defendant 
must show that there is a reasonable probability that, but for 
counsel’s unprofessional errors, the result of the proceeding 
would have been different.”). In that way, the Sullivan rule 

11 Petitioner asserts (at 48) that “[w]hatever his subjective motivations 
may have been, the objective fact is that [Saunders] was ethically for- 
bidden to adopt the only motivational stance that a lawyer representing 
[petitioner] was permitted to have—a stance of undivided loyalty to [peti- 
tioner].” That argument is simply another way of getting to petitioner’s 
per se rule that prejudice should be presumed if a technical conflict exists. 
As explained, neither this Court’s precedents nor the practical 
considerations underlying them commend that approach. 

29 

strikes a proper balance between the recognition that 
conflicts of interests pose a worrisome potential threat to the 
integrity of the adversarial process, and the principle that 
the Sixth Amendment only protects against unprofessional 
conduct that actually prejudices the defense. 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

THEODORE B. OLSON 
Solicitor General 
MICHAEL CHERTOFF 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
GREGORY G. GARRE 

Assistant to the Solicitor 

General 
JOEL M. GERSHOWITZ 

Attorney 

SEPTEMBER 2001