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April 25, 1996


The opinion of the court was delivered by: HART

 In 1988, a jury convicted Robert Bosko Struminikovski of engaging in a continuing criminal enterprise to sell cocaine, conspiracy, distribution of controlled substances, providing cocaine to a pregnant woman, offering a bribe to a public official, possession of morphine, possession of firearms by a convicted felon, and possession of firearms during and in relation to his commission of drug trafficking offenses. The court (Rovner, J.) sentenced Struminikovski to twenty-three years in prison with 38 years of supervised release and fined him $ 140,000. Seven other defendants were convicted of conspiracy and drug trafficking charges, including Struminikovski's father, Vasil. The jury also returned forfeiture verdicts against the Struminikovskis.

 In a consolidated appeal, the defendants challenged the conspiracy count of the indictment and two jury instructions. Struminikovski and his father also raised challenges based on ineffective assistance of counsel and prejudicial error in the jury instructions during the forfeiture phase of the trial. Robert Struminikovski argued that his lawyer, Steven Muslin, denied him effective assistance of counsel by conceding that Struminikovski sold drugs. The Seventh Circuit affirmed all convictions. United States v. Simone, 931 F.2d 1186 (7th Cir.), cert. denied, 502 U.S. 981, 112 S. Ct. 582, 116 L. Ed. 2d 608 (1991). With respect to Struminikovski's Sixth Amendment claim, the court noted that Muslin had pursued a sound strategy of admitting those charges supported by overwhelming evidence while vigorously denying the charges, such as continuing criminal enterprise, carrying harsher penalties. Id. at 1195-96. The court also concluded that this strategy was conducted with Struminikovski's approval. Id.

 Pursuant to 28 U.S.C. § 2255, Struminikovski initially moved to vacate, set aside, or correct his sentence based on an ineffective assistance of counsel claim which he argues could not be raised on direct appeal. Petitioner claims that his counsel was paid to defend him by Spyridon Manasses, an unindicted co-conspirator, and that Muslin's loyalty to Manasses precluded a fair defense. Respondent further asserts that Muslin claimed he would not represent informers and that he pressured him into going to trial rather than enter into a plea agreement.

 As an attachment to his reply brief, petitioner submitted a memo written by Assistant United States Attorney Daniel Murray on July 29, 1988, two days before the jury trial began, in which Murray notes that one of the government's chief witnesses, Amanda Roland, called him indicating that petitioner wished to speak to Murray outside of Muslin's presence. Roland purportedly stated that she did not believe that petitioner had received any plea offers and that a third party was paying his attorney fees. Murray indicated to Roland that petitioner had to call him personally if he wished to speak to him and then noted in the memorandum the steps which would be taken if petitioner called. *fn1"

 Petitioner added a second § 2255 claim following the Supreme Court's holding in Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), that "use" of a weapon in the commission of a drug crime, 18 U.S.C. § 924(c), requires active employment of the weapon. Struminikovski's conviction was based on the discovery of weapons in his home following his arrest, and petitioner asserts that there is no evidence showing use of a weapon in the commission of a drug crime.

 The government challenges the conflict of interest claim, but concedes that under Bailey, petitioner's conviction should be vacated. It argues, however, that petitioner should receive no reduction in sentence.

 Both parties were instructed to submit supplemental briefs in order to address the specific conflict allegations raised by the July 28, 1988 memorandum as well as the implications of vacating the § 924(c) conviction. With these responses in hand, petitioner's § 2255 motion may now be addressed.


 Ineffective assistance of counsel claims frequently split into two categories: those which can be made based on the trial record, and those which are based on additional evidence. A petitioner may choose to pursue the former on direct appeal, without waiving his right to bring the latter under § 2255; this permits the petitioner to develop the record in full. Guinan v. United States, 6 F.3d 468, 471 (7th Cir. 1993). Generally, § 2255 claims of ineffective assistance of counsel require an evidentiary hearing. Id. Petitioner raises two ineffective assistance claims based on conflict of interest, requesting an evidentiary hearing on both. Petitioner's first, and potentially more substantive claim, alleges that Muslin's representation was co-opted by his relationship with Manasses. The second alleges that Muslin was, in effect, the partner of the attorney representing petitioner's father and a conflict of interest resulted.

 With respect to both conflicts, petitioner never notified the trial judge of the alleged conflict and neither party suggests that the record indicates constructive knowledge. In those circumstances, a motion to vacate may only succeed if the petitioner demonstrates that "an actual conflict of interest adversely affected his lawyer's performance." Daniels v. United States, 54 F.3d 290, 294 (7th Cir. 1995), citing Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980).

 The "actual conflict" burdens apply in this case. An actual conflict of interest exists only if a defense attorney "actively represented conflicting interests." Cuyler, 446 U.S. at 350. Typically, an actual conflict of interest arises when one attorney represents two people at the same time. The Seventh Circuit has held that a petitioner carries a particularly heavy burden when he seeks to prove an actual conflict of interest based upon successive representation. In those cases, the trial attorney no longer represents the third party whose interests are adverse to the petitioner. United States v. Enoch, 70 F.3d 1490, 1496 (7th Cir. 1995).

 If the petitioner establishes that an actual conflict of interest existed, he must demonstrate that the conflict "adversely affected his lawyer's performance." Stoia, 22 F.3d 766, 770 (7th Cir. 1994) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)). If the defendant proves both that the actual conflict of interest existed and that it had an adverse impact on his attorney's performance, prejudice will be presumed. Stoia, 22 F.3d at 770-71. Even under this standard, however, the petitioner must identify "specific instances where counsel could and would have done something different" absent the conflict of interest. Griffin v. Camp, 40 F.3d 170, 173 (7th Cir. 1994).

 The government argues that the motion should be denied without benefit of an evidentiary hearing because attorney Muslin avers that he 1) received approximately $ 18,000 from members of Struminikovski's family; 2) never received any money from Spyridon Manasses for representing petitioner; 3) never stated that he did not represent people who cooperate with the government and actually suggested to the government that petitioner could be cooperative; 4) never discouraged petitioner from pleading guilty; 5) petitioner never discussed ...

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