Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 95-C-123-Robert L. Miller, Jr., Judge.
Before Cudahy, Easterbrook and Rovner, Circuit
The opinion of the court was delivered by: Cudahy, Circuit Judge
SUBMITTED SEPTEMBER 13, 2001*fn1
In this successive appeal, Robert Holleman argues that the district court erred in concluding that he could not demonstrate cause and prejudice with respect to his ineffective assistance of counsel claims so as to survive a dismissal of his second petition under 28 U.S.C. § 2254 as an abuse of the writ. We affirm.
Holleman was one of four people charged with the murder of Robin Opfer in 1977. Holleman v. Miller, 101 F. Supp. 2d 700, 701 (N.D. Ind. 2000). Prior to his indictment for the murder, Holleman had made some incriminating statements to the police, but his statements also implicated Frank Love as the shooter. Holleman v. Duckworth, 155 F.3d 906, 908 (7th Cir. 1998). The trial judge, Lake County Superior Court Judge James Clement initially appointed Stanley Jablonski to represent Holleman. Holleman, 101 F. Supp. 2d at 701. When a disagreement arose between Holleman and Jablonski, Judge Clement allowed Jablonski to withdraw and appointed James Frank to represent Holleman. Id. at 702. Frank had earlier represented co-defendant Love in a separate trial. Id. at 701. The district court found that Frank was chosen because he was familiar with the case and Holleman had filed a speedy trial motion. Id. at 702. Before appointing Frank to represent Holleman, Judge Clement prudently asked Frank whether there would be any conflict if Frank represented Holleman, and Frank stated that he saw none. Id. at 702. This inquiry occurred outside of Holleman's presence, at a hearing unrelated to his case. Id.
Frank was available to represent Holleman because he had been successful in persuading the prosecutor to dismiss the murder charges against Love. The prosecutor had dismissed those charges without prejudice based upon insufficient evidence; Frank had persuaded the prosecutor that Love was elsewhere (in South Bend) at the time that Holleman had said Love was shooting Opfer. Id. As part of an alibi defense in the Love trial, Frank had notified the prosecutor that he would call Mary Schaar to testify in support of Love's alibi. Id.
During Holleman's trial, the prosecutor called the same Mary Schaar as a surprise witness, apparently to cast doubt on Holleman's statements attributing the shooting to Love. Id. Frank unsuccessfully objected to the Schaar testimony on grounds of relevancy, but he did not cross-examine Schaar. Id. Later, Frank admitted that he did not cross-examine Schaar to impeach her credibility because he feared that that course could lead to the prosecution's re-instituting the charges against Love. Id.
Holleman was acquitted of first degree murder but he was convicted of felony murder. He was sentenced to life imprisonment. Holleman, 155 F.3d at 908. This outcome suggests that the jury was not persuaded by the efforts of the state to picture Holleman as the shooter instead of Love (whom Holleman had fingered as the shooter).
After exhausting his direct appeal and state post-conviction procedures in 1981, Holleman filed an application for federal collateral relief pursuant to 28 U.S.C. § 2254, but did not raise a claim of ineffective assistance of counsel in that petition. That petition was denied, and this Court affirmed the denial. Holleman v. Duckworth, 700 F.2d 391 (7th Cir. 1983). Subsequently, Jeffery Evans was assigned to be Holleman's new appellate counsel. After a diligent search, Evans located Frank (who had been disbarred at that point) and got Frank to admit that Frank had an actual conflict of interest that adversely affected his performance during Holleman's trial.
On February 21, 1995, Holleman filed a second habeas petition, in which he raised two claims (among others). First, he argued that the trial court failed to make a proper inquiry into whether Frank had a conflict of interest -the "judicial inquiry" claim. See Holloway v. Arkansas, 435 U.S. 475, 483-84 (1977) (holding that a trial court must inquire into the propriety of multiple representation where one party makes a timely objection); Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) (holding that a trial court needs to initiate an inquiry only if it knows or reasonably should know that a particular conflict exists). Second, he argued that Frank's conflict of interest precluded Frank from providing effective assistance of counsel-the "attorney conflict" claim. See Cuyler, 446 U.S. at 350 (holding that an actual conflict of interest that adversely affects defense counsel's performance is a violation of the Sixth Amendment). The state objected that Holleman failed to raise these claims in his first petition, so Holleman's second petition should be dismissed as an abuse of the writ unless Holleman could show cause and prejudice. See McCleskey v. Zant, 499 U.S. 467, 494 (1991).
On May 31, 1995, the district court denied the petition as an abuse of the writ. On September 15, 1998, we vacated the district court's order and remanded for an evidentiary hearing to determine whether Holleman could demonstrate cause and prejudice. Holleman, 155 F.3d at 911-12 ("Accordingly, we remand the case for an evidentiary hearing to establish what the petitioner knew about the claim, when he knew it, and the earliest he reasonably could have known it."). We held that the record before us did not establish that Holleman knew of the attorney conflict or about the trial judge's knowledge of a potential conflict of interest. Id. at 910-11. Further, the record did not "establish as a matter of law whether what Holleman did not know but could have `discovered upon reasonable investigation' would have supported a claim for relief." Id. at 911 (quoting McCleskey, 499 U.S. at 498).*fn2 Therefore, we remanded the case to a different judge for an evidentiary hearing to determine whether Holleman "could have discovered through reasonable diligence and investigation a conflict of interest claim." Id. (internal citation and quotations omitted). Further, we held that Holleman must also demonstrate prejudice to overcome the abuse-of-the writ defense. Id. We indicated that the record before us suggested that the state trial judge knew or should have known of the possibility of a conflict of interest such that the trial judge should have made an adequate inquiry into the conflict. Id.
An evidentiary hearing was conducted on May 25, 2000. After that hearing, the district court denied Holleman's second petition as an abuse of the writ. Holleman, 101 F. Supp. 2d at 706. The district court found that the trial judge did not know, and could not have known, about the conflict. Id. at 704-5. The district court thus concluded that Holleman could not show prejudice with respect to his judicial inquiry claim. Id. at 705. The district court also found that Holleman could have raised the judicial inquiry claim in his first petition, but that he inexcusably failed to do so. Id. at 705. Further, the district court found that Holleman had reason to inquire into the attorney conflict claim, and that if he had inquired, he would have been told of the conflict by Frank. Id. at 706. Thus, the district court concluded that Holleman could not show cause with respect to either claim. Id. Holleman appeals.
This court has jurisdiction under 28 U.S.C. § 1921. We review issues of law de novo, and issues of fact, for clear error. See Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir. 2001). A factual finding is clearly erroneous when, after reviewing the complete record, we are left with "the definite and firm conviction that a mistake has been committed." Thornton v. Brown, 47 F.3d 194, 196 (7th Cir. 1995). However, in habeas corpus proceedings, mixed questions of law and fact are reviewed de novo. See Cuyler v. Sullivan, 446 U.S. 335, 342 (1980); Strickland v. Washington, 466 U.S. 668, 698 (1977) (same).
"The doctrines of procedural default and abuse-of-the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have an opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments." McCleskey v. Zant, 499 U.S. 467, 493 (1991). The cause and prejudice standard in an abuse-of the-writ case is the same as in a procedural default case. Id. at 494-95. "The standard is an objective one." Id. at 495. Holleman can show cause if he can demonstrate that he did not know, and could not have discovered after reasonable investigation, facts sufficient to raise the claim in his first petition. Id. at 499. Holleman can show prejudice as to the attorney conflict claim if he can demonstrate that an actual conflict adversely affected the performance of his trial counsel and as to the judicial inquiry claim if the claim could have succeeded. See Cuyler v. Sullivan, 446 U.S. 335, 348-349 (1980) (counsel's conflict of interest); Mickens v. Taylor, ___ U.S. ___, 122 S. Ct. 1237, 1244 (2002) (trial court's failure to inquire).
We affirm the dismissal of Holleman's second petition because Holleman cannot demonstrate both cause and prejudice to meet the abuse-of-writ objection as to either claim. While he may be able to demonstrate cause with respect to his judicial inquiry claim, he cannot demonstrate prejudice with respect to that claim. Holleman cannot show prejudice from the judicial inquiry claim because the claim would not have succeeded since the trial judge never had a duty to inquire more deeply than he did into Frank's conflict. The reverse is true with respect to Holleman's attorney conflict claim. He can demonstrate prejudice with respect to that claim, but he cannot demonstrate cause for failing to raise that claim in his first petition. Holleman cannot demonstrate cause because he failed to ask Frank whether Frank had been burdened by a conflict (or to make an inquiry of another equally plausible source). If Frank had enlightened Holleman as to the conflict, Holleman could have brought his claim based on this information. If Frank had denied the existence of a conflict, Holleman would have established cause (by an external impediment) for not including the attorney conflict claim.
Under Holloway and Cuyler, a trial court has the duty to inquire adequately into a trial counsel's conflict of interest if it knows or reasonably should know that a particular conflict exists. See Holloway, 435 U.S. at 483-84 (establishing duty); Cuyler, 446 U.S. at 347 (holding that a trial court must make an inquiry if it knows or reasonably should know that a particular conflict exists). However, "[a]bsent special circumstances, . . . trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Cuyler, 446 U.S. at 346. While the Supreme Court recently has cast doubt on whether the principle of Cuyler v. Sullivan should be applied to cases where trial judges have failed to inquire into conflicts of interest in successive representation cases, see Mickens, 122 S. Ct. at 1245, even if Cuyler applied in the present case, Holleman cannot show prejudice with respect to his judicial inquiry claim.
Here, the trial court's duty to inquire could be triggered in two situations-before Holleman's trial and during his trial. The district court found that Holleman could not show cause and prejudice in either situation. Although it is a close question, we believe that Holleman could demonstrate cause for his failure to raise the judicial inquiry claim in his first petition. Unbeknownst to Holleman or to any of his appellate counsel (because it was not in the trial record), Judge Clement had asked Frank whether Frank would have a conflict of interest if he were appointed to represent Holleman. Holleman, 101 F. Supp. 2d at 702. Frank had answered that he saw no conflict. Id. Had Holleman known of this inquiry, he likely would have raised a judicial inquiry claim (relating to what Judge Clement knew before trial) in his first petition. Further, if Holleman had known about the trial court's inquiry, he likely would have brought a judicial inquiry claim based upon the trial court's failure to make an inquiry when Frank developed an actual conflict of interest during the trial. However, Holleman cannot demonstrate prejudice because even if he had raised the judicial inquiry claim in his first petition, the claim would have failed because the trial court had no further duty to inquire either before or during Holleman's trial. But cf. Mickens, 122 S. Ct. at 1244 ("[T]he rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel's performance.").
Holleman argues that Judge Clement's inquiry of Frank demonstrated that Judge Clement knew that there was a potential conflict of interest prior to trial (and thus had a duty to inquire into the conflict), or alternatively, Judge Clement should have become aware of the conflict during the trial. Although the circumstances are somewhat clouded, neither argument is compelling. While "a possible conflict inheres in almost every instance of multiple ...