The opinion of the court was delivered by: Marshall, District Judge.
Petitioners, Otis Williams and A.D. Clark, proceeding pro se,
seek habeas corpus relief from an Illinois criminal conviction,
pursuant to 28 U.S.C. § 2254 (1976). Respondent, the
Illinois Director of Corrections, has answered the petition and
moved for summary judgment pursuant to Rule 56, Fed.R.Civ.Pro.
Petitioners have responded with a cross motion for summary
judgment. The motions have been briefed and are ready for
Petitioners were tried and convicted by a jury in Kankakee
County Illinois of burglarizing the P & E Market. The trial
judge sentenced them to terms of five to twenty years
imprisonment. Petitioners' convictions were affirmed on appeal.
People v. Clark, 42 Ill. App.3d 472, 355 N.E.2d 619
(1976). Petitioners assert two grounds for relief in the
present action: that their trial counsel was laboring under a
conflict of interest which rendered his assistance ineffective
in violation of their Sixth Amendment rights, and that the
trial court erred in giving Illinois Pattern Instruction 13.21.
The facts of the case and evidence presented at trial are
reviewed in the Illinois Appellate Court decision, 355 N.E.2d
at 620-21, and need not be repeated here in detail. Petitioners
were tried with a third defendant, E.J. Clark ("E.J."), who is
not a party to this action. A single court appointed attorney
represented all three defendants at trial and a second court
appointed counsel represented all three on appeal. The case
against the three defendants consisted of testimony placing
them in a car filled with meat taken from the market shortly
after the burglary took place, the fingerprint identification
of Otis Williams and testimony of the police chief that he saw
a large quantity of meat at the home of A.D. Clark ("A.D.").
The prosecution also introduced Williams prior judicial
admission which had been given in a related criminal
The petitioners did not testify at trial and their attorney
presented no evidence in their behalf. Counsel did, however,
put codefendant E.J. Clark on the stand. E.J. claimed that he
was not present at the burglary and only became involved after
the fact. The substance of his testimony was that he was
walking home from a friend's house and was picked up by
petitioners Williams and A.D. Clark (E.J.'s brother) and that
"[o]nce inside the car he noticed it was full of meat." 355
N.E.2d at 621.*fn2 There was, of course, no cross-examination
or impeachment on behalf of petitioners since it was their
counsel who elicited the testimony from E.J. on direct
On appeal, all three defendants complained that the jury
instruction, IPI 13.21, cited above was prejudicial and E.J.
and A.D. Clark raised separate claims based on ineffective
assistance of counsel .*fn3 The Appellate Court reversed as to
E.J. Clark, holding that the conflict between his defense and
that of his co-defendants rendered their joint representation
constitutionally inadequate,*fn4 but affirmed as to Williams
and A.D. Clark. The court rejected the jury instruction claim
as to all of the defendants, holding the instruction was not
properly objected to at trial or during post trial motions and
was therefore waived. Id. at 623.
In deciding the ineffectiveness of counsel claim, the
Illinois court relied on the standard set out in People v.
Morris, 3 Ill.2d 437, 121 N.E.2d 810 (1954), that in order
to establish a constitutional violation a defendant must show
"(1) actual incompetence of counsel, as reflected by the manner
of carrying out his duties at trial, and (2) substantial
prejudice resulting, without which the outcome probably would
have been different." 355 N.E.2d at 621. The court rejected the
argument advanced on behalf of A.D. Clark that joint
representation with a defendant who placed him leaving the
scene of the crime with the stolen goods in hand created a
Sixth Amendment problem. The court stated:
As to A.D. Clark, however, while he was prejudiced
by the testimony of E.J. Clark, that the station
wagon was full of meat when Williams picked E.J.
Clark up, it was doubtful, on the basis of the
record, that without such testimony the outcome as
to A.D. Clark could have been any different.
When all the evidence is reviewed on this issue,
it is doubtful whether the admittedly prejudicial
testimony of E.J. Clark was sufficiently
prejudicial that it could be said that the outcome
would have been different. We, therefore,
conclude, as to A.D. Clark, that no sufficient
prejudice is shown.
Petitioners claim that joint representation of all three
defendants by a single attorney denied them their Sixth
Amendment right to effective assistance of counsel. The
problems which attend the multiple representation of criminal
defendants have received considerable attention from the
Supreme Court. See Glasser v. United States,
315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Holloway v.
Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426
(1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct.
1708, 64 L.Ed.2d 333 (1980). Every criminal defendant has the
right to the effective assistance of counsel. The "mere
physical presence of an attorney does not fulfill the Sixth
Amendment guarantee when the advocate's conflicting obligations
have effectively sealed his lips on crucial matters."
Holloway v. Arkansas, supra 435 U.S. at 490, 98 S.Ct.
at 1181. It is clear, however, that multiple representation is
not a per se Sixth Amendment violation. The Court has
recognized that "joint representation [may be] a means of
insuring against reciprocal recrimination. A common defense
often gives strength against a common attack."
Glasser v. United States, supra 315 U.S. at 92, 62
S.Ct. at 475 (Frankfurter, J. dissenting) quoted in
Holloway, supra 435 U.S. at 482-83, 98 S.Ct. at 1177.
Where, as in this case, defense counsel does not assert
conflicting interests as a basis for severance or the
appointment of separate counsel, the court is under no
obligation to conduct a sua sponte inquiry into
potential conflicts which might not present themselves at
trial. Cuyler, supra; United States v. Mandell,
525 F.2d 671 (7th Cir. 1975), cert. denied 423 U.S. 1049,
96 S.Ct. 774, 46 L.Ed.2d 637 (1976). The Supreme Court in
Cuyler followed the rationale advanced by this and
other circuits that the primary responsibility for recognizing
and eliminating conflicts of interests rests with the defense
counsel and not the trial court.*fn5
Neither, however, does trial counsel's failure to seek a
severance or separate counsel preclude petitioners from
asserting their Sixth Amendment claim on appeal or collateral
review. Rather, the consequence of counsel's failure to
recognize an impermissible conflict prior to trial is to
increase a petitioner's burden in establishing an
ineffectiveness claim in a collateral proceeding. While the
mere assertion of a conflict at trial, followed by failure of
the trial court to grant separate counsel, might require
reversal, see Holloway, supra 435 U.S. at 485-87, 98
S.Ct. at 1179-1180, absent a trial objection the petitioner
must establish an "actual conflict of interest adversely
affecting his lawyer's performance." Cuyler, supra 100
S.Ct. at 1718. A mere potential conflict, which may not have
surfaced at trial, is insufficient. Id. See also, United
States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th
Cir. 1975); United States v. Mandell, supra; United States
v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert.
denied 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976).
It is part of the defendant's burden on appeal or collateral
review to identify with a reasonable degree of specificity the
source and nature of the conflict. Mandell, supra at
In the case at bar, petitioners have met their burden. As
indicated earlier, petitioner's co-defendant, E.J. Clark,
represented by common counsel, testified on direct examination
that he came upon petitioners shortly after the burglary had
taken place riding in a car carrying goods stolen from the
market. In any case where two or more defendants have
inconsistent stories relating to the crime charged, joint
representation is impermissible. See Turnquest v.
Wainwright, 651 F.2d 331 (5th Cir. 1981). This is
particularly true where one of the defendants is prevented by
counsel from taking the stand because of possible prejudice to
a co-defendant, or counsel is precluded from ...