[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________
                                                                              FILED
                                    No. 00-12207             U.S. COURT OF APPEALS
                              ________________________         ELEVENTH CIRCUIT
                                                                   JUNE 15, 2001
                                                                THOMAS K. KAHN
                         D. C. Docket No.    94-02859-CV-RLV-1       CLERK

JANSSEN REYNOLDS,
                                                                       Petitioner-Appellant,

                                            versus

JOHN CHAPMAN, Warden, et al.,
                                                                    Respondents-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                   (June 15, 2001)

Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.


____________
*Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of Florida, sitting
by designation.
WILSON, Circuit Judge:

      Janssen Reynolds, a Georgia prisoner serving concurrent life sentences for

rape, kidnaping, and aggravated sodomy, appeals from the district court’s denial of

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Reynolds argues that his defense attorney, William Hankins, labored under

conflicts of interest at both the pre-trial and the immediate post-trial stages of

Reynolds’s case, and that these conflicts rendered Hankins’s representation of

Reynolds constitutionally ineffective. After a careful consideration of the briefs

and the record, we conclude that Hankins had a potential conflict of interest at the

pre-trial stage of Reynolds’s case that never ripened into an actual conflict.

However, at the post-trial stage, Hankins operated under an actual conflict of

interest that resulted in a compromise of Reynolds’s interests for the benefit of

another party. The representation that Reynolds received in this post-trial period

was constitutionally deficient, and the district court erred in failing to make such a

finding. Accordingly, we affirm in part, reverse in part, and remand the case to the

district court, with instructions to direct the Superior Court of DeKalb County,




                                           2
Georgia to grant petitioner the opportunity for new post-trial proceedings on the

basis of his claims of ineffective assistance of post-trial counsel.1

                                               I.

                                           FACTS

       Reynolds and three co-defendants (Arlee Harris, Andrew Lee Curtis, and

Shionoski Thomas) were indicted by a DeKalb County, Georgia grand jury in 1981

for the kidnaping, rape, sodomy, and robbery of Caroline Garritano and aggravated

assault upon her former boyfriend, Kevin Companik. Each of the defendants was

individually represented, but the attorneys for Reynolds, Harris, and Thomas all

worked in the office of the DeKalb County Public Defender. Curtis retained a

private attorney for his defense.

       In the pretrial period, the attorneys for co-defendants Harris and Thomas

worked out a plea arrangement with the state, whereby Harris and Thomas would

plead guilty to the rape charge and accept a sentencing recommendation of twenty

years, to serve eight years. In exchange, the remainder of the charges would be

nolle prossed. Hankins informed Reynolds of the possibility of securing a plea

arrangement from the prosecutors, and discussed the possible benefits of accepting



       1
        These new post-trial proceedings should include the opportunity to file a Motion for a
New Trial, as well as the opportunity for a new appeal.

                                               3
a plea arrangement versus the possible risks of going to trial.2 Reynolds rejected

the offer, insisting on his innocence, and elected to take his chances at trial.

       On the morning of the trial, Hankins informed Reynolds that Harris and

Thomas had accepted the plea deal outlined above. Upon learning that two of his

co-defendants had taken this step, Reynolds asked Hankins to attempt to secure the

same plea arrangement. The prosecutor was unwilling to make the same offer to

Reynolds, and instead offered to permit him to plead guilty to the rape charge

without a sentencing recommendation in exchange for the state’s agreement to

nolle prosse the other charges. Reynolds found this proposed plea deal

unacceptable, and the case went to trial.

       Reynolds and his remaining co-defendant, Curtis, took substantially adverse

positions at the trial. Reynolds’ defense relied heavily on the fact that the

evidence against Curtis was stronger than the evidence implicating Reynolds, and

Reynolds hoped to profit by the comparison.3 Reynolds did not testify at trial,

       2
          The terms of the plea arrangement Reynolds was offered at this point are unclear. In
testimony offered at a subsequent federal evidentiary hearing, the prosecutor in Reynolds’s case
indicated that he felt Reynolds was more culpable than co-defendants Thomas and Harris, and
recalled that he offered to permit Reynolds to plead guilty to rape in exchange for an agreement
to serve twenty years. The magistrate judge’s Report and Recommendation suggests that
Reynolds was offered the same plea arrangement as Harris and Thomas. In any event, it is clear
from the record that Hankins engaged in plea negotiations with the prosecutor on Reynolds’s
behalf, and that Reynolds rejected the state’s offer.
       3
         Hankins testified at the federal habeas evidentiary hearing that his strategy had been to
shift as much blame as possible onto Curtis and the absent co-defendants, and to “shrink in the

                                                 4
though Curtis did, where he denied participation in the crime and testified that his

only encounter with the victim on the night in question came when she voluntarily

entered his house (presumably after the crime occurred) and asked to use the

restroom. Curtis’s mother corroborated his story, and as a result of this testimony,

the trial judge held her in contempt of court for perjury and had her incarcerated.

Neither Harris nor Thomas testified at trial.

       Hankins’s strategy proved unsuccessful, as both Curtis and Reynolds were

convicted of rape, aggravated sodomy, kidnaping, and the lesser included offense

of simple battery. Both defendants were sentenced to concurrent life terms on the

rape, sodomy, and kidnaping charges, and 12-month sentences on the simple

battery count, also to be served concurrently.

       The lawyer representing Curtis withdrew after the trial, and the trial judge

appointed Hankins to represent both Curtis and Reynolds at the “Motion for a New

Trial” stage of the case. Hankins filed a motion for a new trial solely on

Reynolds’s behalf on March 12, 1982; on March 22 of that year, he filed the same

motion on Curtis’s behalf. On March 17, 1983, Hankins filed a “brief in support of

defendant’s motion for a new trial” which contained the names of both Curtis and



courtroom and be out of sight.” Hankins’s strategy was not without foundation. The victim
clearly identified Curtis as being one of her attackers, and there was scientific evidence linking
Curtis to the crime, while neither of these conditions held true for Reynolds.

                                                 5
Reynolds.4 In the brief, he made a series of arguments for a new trial on behalf of

both defendants. On March 31, 1983, the court denied both defendants’ motions.

Curtis secured separate counsel for his appeal.

                               PROCEDURAL HISTORY

       The procedural history of this case is lengthy and complex, though our

recounting of it will be brief. Following an unsuccessful direct appeal, Reynolds

filed two state and two federal petitions for writs of habeas corpus over the next

seven years. During the course of his second federal habeas petition, Reynolds

became aware of two especially salient facts: (1) that Hankins was a member of the

same public defender’s office as the attorneys that represented his co-defendants

Harris and Thomas, and (2) that Hankins represented both Curtis and Reynolds in

the post-trial stages of the case. As Reynolds was unaware of these problems until

this point, he had not addressed them in any state collateral proceeding, and the

district court dismissed his habeas petition without prejudice so that he could make

the conflict of interest arguments at the state level. Reynolds promptly filed a third

state habeas petition, arguing that his counsel labored under an unconstitutional

conflict of interest in both the pre-trial and post-trial stages of his case.



       4
        The record does not reflect the reason for the year-long hiatus separating the motions for
a new trial and the brief in support of those motions.

                                                6
      In June of 1994, the Muscogee County Superior court dismissed Reynolds’s

third habeas petition as successive under Georgia law. After the Georgia Supreme

Court affirmed, Reynolds filed the instant petition for federal habeas corpus relief

in the Northern District of Georgia in October of 1994. While the state argued that

the instant petition was procedurally defaulted, the magistrate judge assigned to the

case found that the petition met the “cause and prejudice” exception to the

procedural default rule. The magistrate judge further recommended granting

Reynolds’s habeas petition, as Reynolds had successfully demonstrated that his

attorney labored under conflicts of interest at both the pre-trial and post-trial stages

of the case.

      Following an objection by the respondent, the district court declined to

accept the magistrate judge’s recommendation, and returned the case to the

magistrate judge for further briefing and consideration. In April of 1999, the

magistrate judge issued a new Report and Recommendation, again finding that the

cause and prejudice rule excused Reynolds’s procedural default. However, this

time the magistrate judge recommended that the district court deny Reynolds relief

on the conflict of interest claims. The district court adopted the magistrate’s

recommendation in January of 2000, and granted a certificate of appealability




                                           7
limited to the issue of whether Reynolds was denied the effective assistance of

counsel due to his attorney’s possible conflict(s) of interest.



                                                II.

                                        DISCUSSION

       We review a district court’s decision to grant or deny a habeas petition de

novo. See Sims v. Singletary, 

, 1304 (11th Cir. 1998). The

substance of this appeal concerns whether an attorney rendered ineffective

assistance due to a conflict of interest, which is a mixed question of law and fact

also subject to de novo review.5 See id; Freund v. Butterworth, 

, 862

(11th Cir. 1999) (en banc), cert. denied, 

(1999).

       The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to effective assistance of counsel, and effective assistance

includes a right to counsel “unimpaired by conflicting loyalties.” Duncan v.

Alabama, 

, 1016 (11th Cir. 1989). The duty of unfettered loyalty to

one’s clients is among the most central of a criminal defense attorney’s

responsibilities. See Strickland v. Washington, 

, 692 (1984).



       5
        A district court’s findings of fact in a habeas proceeding are reviewed for clear error.
See Byrd v. Hasty, 

, 1396 (11th Cir. 1998).

                                                 8
      Ineffective assistance of counsel claims in the conflict of interest context are

governed by the standard articulated by the Supreme Court in Cuyler v. Sullivan,

(1980). Cuyler establishes a two-part test that we use to evaluate

whether an attorney is constitutionally ineffective due to a conflict of interest. To

show ineffectiveness under Cuyler, a petitioner must demonstrate: (a) that his

defense attorney had an actual conflict of interest, and (b) that this conflict

adversely affected the attorney’s performance. See 

.

      A series of opinions from this court have interpreted and refined the

meaning of both prongs of the Cuyler test. To satisfy the “actual conflict” prong, a

defendant must show something more than “a possible, speculative, or merely

hypothetical conflict.” Lightbourne v. Dugger, 

, 1023 (11th Cir.

1987). In Smith v. White, 

(11th Cir. 1987), we developed a test that

enables us to distinguish actual from potential conflicts of interest:

      We will not find an actual conflict of interest unless appellants can point to
      specific instances in the record to suggest an actual conflict or impairment of
      their interests . . . . Appellants must make a factual showing of inconsistent
      interests and must demonstrate that the attorney made a choice between
      possible alternative causes of action, such as eliciting (or failing to elicit)
      evidence helpful to one client but harmful to the other. If he did not make
      such a choice, the conflict remain(s) hypothetical.

.




                                           9
      Assuming a defendant can demonstrate that his attorney labored under an

actual conflict of interest, the Cuyler test demands that he show that this conflict

adversely affected the representation he received. To prove adverse effect, a

defendant needs to demonstrate: (a) that the defense attorney could have pursued a

plausible alternative strategy, (b) that this alternative strategy was reasonable, and

(c) that the alternative strategy was not followed because it conflicted with the

attorney’s external loyalties. See 

.

      We now apply these principles to each of Reynolds’s claims.

                    A) Conflict of Interest at the Pre-trial Stage

      Reynolds contends that he did not receive Hankins’s undivided loyalty in the

pre-trial stage, because Hankins’s law office (the DeKalb County Public

Defender’s Office) represented two co-defendants with interests contrary to

Reynolds’s. The structure of Reynolds’s argument is as follows: (a) public

defenders offices are “law offices” and should be treated as a law firm for the

purposes of a conflict of interest analysis, (b) conflicts affecting one member of a

law firm or law office are attributable to all members of the firm, (c) the interests

of defendants Harris and Thomas were contrary to those of Reynolds, and one law

office cannot have represented the three of them without an actual conflict of




                                          10
interest, and (d) the conflict adversely affected Reynolds because he did not secure

the same plea arrangement as his co-defendants.

       We can tentatively accept the first two premises of Reynolds’s argument.

While public defenders’ offices have certain characteristics that distinguish them

from typical law firms, our cases have not drawn a distinction between the two.

See 

n.12 (finding that under the Florida Code of

Professional Responsibility, “a conflict may arise when a public defender’s office

represents clients with adverse interests.”); Mills v. Singletary, 

,

1287 (11th Cir. 1998) (acknowledging the possibility of a conflict of interest in

simultaneous representation of co-defendants by public defender’s office).

       It is also well established in this circuit that a lawyer’s confidential

knowledge and loyalties can be imputed to his current partners and employees. See

United States v. Kitchin, 

, 904 (5th Cir. 1979)6; Cox v. American Cast

Iron Pipe Co., 

, 729 (11th Cir. 1988); 

, n. 33.

The current disciplinary rules of the state bar in Georgia preclude an attorney from

representing a client if one of his or her law partners cannot represent that client

due to a conflict of interest. See Ga. Rules of Professional Conduct, §4-102, Rule


       6
         In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the Former Fifth Circuit handed down prior
to October1, 1981.

                                              11
1.10(a) (2000).7 The duties and loyalties of a particular attorney are imputed to his

partners and employees, and Reynolds is correct that a law office that represents

criminal defendants with divergent interests risks running afoul of its clients’ Sixth

Amendment rights.

        The circumstances surrounding Hankins’s representation of Reynolds in the

pre-trial stage were sufficient to create a substantial risk of a conflict of interest.

Hankins’s professional colleagues in the public defender’s office were representing

Reynolds’s co-defendants, and those co-defendants happened to be the very

persons whom Reynolds blamed for the crime. The possibility that the interests of

one of the three co-defendants would be sacrificed for the benefit of the others was

considerable in such a situation. Reynolds has successfully demonstrated that a

potential conflict of interest existed in the representation of these three co-

defendants by the same public defender’s office, given the factual posture of this

case.

        However, Reynolds cannot take the necessary next step, and demonstrate

that this potential conflict ever blossomed into an actual conflict within the

meaning of Cuyler. An application of the test this court developed in Smith v.



        7
         A similar rule was in effect in Georgia at the time of Reynolds’s trial. See Ga. Code of
Professional Responsibility, Directory Rule § 5-105(d) (1980).

                                               12
White to the facts of the instant case will illustrate the absence of an “actual

conflict.”

      Smith requires a petitioner to do two things to demonstrate that his attorney

labored under an “actual conflict;” first, he must make “a factual showing of

inconsistent interests,” and second, he must demonstrate that his attorney acted in

some way that reflected the reality of these conflicting interests, such as “eliciting

(or failing to elicit) testimony helpful to one client or harmful to the other.” See

-05. Reynolds has likely made the requisite factual

showing of inconsistent interests. Reynolds was strategically committed to a

defense based upon the supposition that he witnessed, but did not participate in, the

crimes of his co-defendants. “Blame-shifting” defenses among co-defendants are a

reflection of inconsistent interests, and Reynolds has successfully demonstrated

that he sought to employ such a defense in this case.

      However, Reynolds has not shown that Hankins performed in a manner that

in any way reflected the divided loyalties of his office. The factual findings of the

district court indicate that Hankins discharged his duties to Reynolds in a way

completely consistent with Reynolds’s interests. In the early stages of the

representation, Hankins timely informed Reynolds of the plea arrangement the

prosecutor offered, explained the implications of pleading guilty, as well as the


                                           13
risks and possible benefits of going to trial. Hankins accepted Reynolds’s decision

to risk an adverse verdict at trial. Hankins informed Reynolds the day of the trial

of the fact that Harris and Thomas had accepted a particular plea arrangement, and

Reynolds, changing his mind, decided to accept the offer if available. The

prosecutor declined to make the same offer to Reynolds, and Hankins informed

Reynolds of the conditions under which the prosecutor would accept a guilty plea.

Nothing in any of Hankins’s actions indicates that he was affected by the fact that

his colleagues negotiated guilty pleas for two of his client’s co-defendants.

         Reynolds argues that the instant case should be analogized to two earlier

decisions of this court: Burden v. Zant, 

(11th Cir. 1994), and Ruffin v.

Kemp, 

(11th Cir. 1985). In both Burden and Ruffin, we found an

actual conflict of interest existed where an attorney representing two co-defendants

negotiated a plea arrangement for one in exchange for his testimony against the

other.

         The present case is distinguishable from Ruffin and Burden. In both of those

cases, the defense attorney to made a clear choice to sacrifice the interests of one

client for the benefit of another. It is obviously impossible to effectively serve

both clients’ interests in such a zero-sum game.




                                           14
      In the instant case, however, Harris’s and Thomas’s decisions to plead guilty

do not appear to have affected Reynolds’s prospects of securing a plea agreement.

There is no evidence in the record suggesting that Harris’s and Thomas’s pleas

prevented effective plea bargaining for Reynolds. In fact, Hankins faithfully

relayed the prosecutor’s early plea overtures to Reynolds, who rejected them.

Reynolds received several opportunities to make a deal with the prosecutor in

exchange for a reduced sentence, and it was his decision to decline such an

arrangement. Reynolds has not demonstrated that the guilty pleas of Harris and

Thomas adversely affected his options in the pre-trial stage. See Smith v.

Newsome, 

, 1463-64 (11th Cir. 1989) (holding that a lawyer’s

performance was not adversely affected when “joint representation did not prevent

effective plea bargaining for either client.”)

      The ultimate fact is that Reynolds cannot identify any flaw in Hankins’s

performance that was related to the fact that Hankins’s co-workers represented

Harris and Thomas. Indeed, the record reflects that Hankins’s representation of

Reynolds at the pretrial stage was vigorous, loyal, and thorough. As such,

Reynolds cannot demonstrate that Hankins labored under an “actual conflict” of

interest at this stage of the proceedings, and thus cannot meet the first prong of the

Cuyler test.


                                           15
                B) Conflict of Interest at the Post-Trial Proceedings

      A glance at the facts surrounding Hankins’s post-trial representation of

Reynolds reflects the problematic nature of that representation. Hankins was in the

untenable position of advancing arguments urging that two defendants be granted a

new trial after each of those defendants had spent the entire trial attempting to foist

blame on the other. Reynolds suggests that Hankins’s loyalty to Curtis prevented

Hankins from advancing certain credible arguments on Reynolds’s behalf. A close

look at the record vindicates Reynolds’s claim.

      Hankins testified that his trial strategy was based largely on a desire to shift

blame for the charged crimes to Curtis. Hankins felt that the evidence against

Curtis was considerably stronger than the evidence against Reynolds, and he hoped

that Reynolds would benefit from a comparison. This strategy was ultimately

unsuccessful, as both Curtis and Reynolds were convicted.

      The brief Hankins filed in support of Curtis’s and Reynolds’s motion for a

new trial contains a number of arguments on Reynolds’s behalf, many of them

focusing on the lack of incriminating evidence against Reynolds. The brief notes,

for example, that Garritano could not identify Reynolds in a photographic lineup,

and that there was not adequate corroboration of Reynolds’s alleged confession.




                                          16
General arguments about the propriety of the jury instructions (made on behalf of

both defendants) were also included in the brief.

      One argument that would seem to be dictated by the facts of the case is

notably absent from the brief. The fact that much of the evidence presented at trial

implicated Curtis, but not Reynolds, could lead to the conclusion that the jury did

not properly distinguish the two defendants. Indeed, the stark differences in the

incriminating evidence presented at trial would likely direct most defense attorneys

to precisely this conclusion. The general argument concerning the relative lack of

evidence against Reynolds could be enhanced considerably through specific

references to the strength of the evidence against Curtis. At the evidentiary hearing

in the instant case, Hankins conceded that he considered making the argument that

Reynolds was unfairly tainted by the strength of the evidence against Curtis, and

that this argument was plausible given the evidence presented at trial.

      Another argument absent from the four-page brief concerns the effect that

the false testimony of Curtis and his mother had upon Reynolds. Curtis’s self-

serving statement suggesting that Garritano had appeared at his doorway after the

crime occurred permitted the inference that Reynolds, Harris, and Thomas had

committed the crime without his assistance. The fact that Curtis’s mother was held

in contempt for corroborating Curtis’s testimony indicates that it was false, as well


                                         17
as possibly prejudicial to Reynolds. Hankins admitted that he could have argued

that the false testimony of Curtis and his mother was prejudicial to Reynolds, and

that such an argument would be plausible.

      The magistrate judge’s Report and Recommendation (adopted in full by the

district court) found, as a matter of fact, that “petitioner [failed] to show that

counsel could have raised any other issue that was not raised on appeal.” This

cursory finding is belied by the record. Hankins admitted that there were at least

two plausible arguments that he could have advanced on Reynolds’s behalf at the

motion for a new trial stage, and the record reflects that these arguments were not

made in the brief supporting the motion for a new trial. The magistrate judge’s

failure to find as a matter of fact that Hankins could have raised these arguments at

the post-trial stage amounts to clear error given the record that we have.

      Other than the above, the magistrate judge made no detailed factual findings

on the post-trial conflict of interest issue. Given our finding of clear error in the

magistrate judge’s determination that Hankins could not have raised additional

arguments on Reynolds’s behalf in the post-trial phase, we would ordinarily

remand the case to the district court for an application of the Cuyler test.

Appropriate application of Cuyler depends heavily on the facts surrounding an




                                           18
attorney’s performance, and the district court is the appropriate venue for the

resolution of factual questions.

      However, in this case, we have an adequate record before us to make remand

for more detailed factual findings superfluous. The record provides us with a more

than sufficient factual basis to appropriately apply the Cuyler test to the

representation Reynolds received in the post-trial stages of his case. Remand

would waste judicial resources given the sufficiency of this record. See Perkins v.

Matthews, 

, 386-87 (1971) (remand unnecessary when record is

adequate to enable reviewing court to decide issue on appeal). Indeed, we have

previously applied Cuyler without remanding in cases in which the record was

clear as to the factual circumstances surrounding an attorney’s actions, even when

the district court made no factual findings concerning those actions. See 

(applying Cuyler test after finding that record demonstrated

that attorney negotiated informal plea arrangement to grant one client immunity in

exchange for testimony against other, even when district court made no specific

factual finding of such).

      Applying Cuyler to the facts (as reflected in the record) surrounding

Reynolds’s post-trial representation, it is clear that Curtis and Reynolds had

inconsistent interests both at trial and post-trial. The inconsistent interests are


                                           19
illustrated by the arguments that Hankins refrained from making at the motion for a

new trial stage of the proceedings. Reynolds could have argued that (a) the jury

unfairly failed to distinguish him from Curtis, when the evidence against Curtis,

but not Reynolds, was overwhelming, and (b) Reynolds was unfairly prejudiced by

the perjurious testimony of Curtis and Curtis’s mother. Hankins declined to make

either of these arguments on behalf of Reynolds; indeed, he could not make such

arguments without breaching his duty of loyalty to Curtis. This was a truly

untenable position for any attorney. Hankins even admitted that, “looking back on

it,” he may have had a conflict of interest in the post-trial stage. The import of

these facts is that Hankins represented clients with conflicting interests, and he

declined to advance certain plausible arguments on behalf of one due to the effect

those arguments would have on the other. This circumstance satisfies the “actual

conflict” prong of the Cuyler test.

      Cuyler further requires that a petitioner that has demonstrated an actual

conflict show that the conflict “adversely affected” his lawyer’s performance.

Reynolds has demonstrated the requisite adverse effect that the joint representation

had upon Hankins’s performance. Hankins had at least two plausible arguments

available to him that could have advanced Reynolds’s case for a new trial. Both of

these arguments are reasonable; indeed, they could have added considerable


                                          20
context to the vague arguments that were advanced on Reynolds’s behalf in the

brief supporting the motion for a new trial. Finally, neither argument could be

made because doing so would have prejudiced Curtis’s interests. Reynolds need

not show that the outcome of the proceeding would have been different had

Hankins made the arguments in question. He merely must demonstrate that his

attorney’s conflict of interest had an effect upon the representation that he

received. See 

(“Once a defendant satisfies both

prongs of the Cuyler test, prejudice is presumed and the defendant is entitled to

relief.”)

       Given the above, it is clear that Reynolds has produced evidence

demonstrating that his attorney labored under a conflict of interest in the immediate

post-trial stage of his case. This conflict rendered Reynolds’s attorney

constitutionally ineffective, and Reynolds is entitled to habeas relief granting him

the opportunity for new post-trial proceedings.

                                   CONCLUSION

       In conclusion, Reynolds has shown that Hankins had a potential conflict of

interest in the pretrial stage of the case, as several co-defendants with interests

inconsistent with those of Reynolds were represented by members of Hankins’s

law office. Nonetheless, this prospective conflict never ripened into an actual


                                           21
conflict of interest. Reynolds was never able to identify any action Hankins took

(or did not take) at that stage that was influenced by the conflicted loyalties of his

office, and therefore could not demonstrate an actual conflict of interest within the

meaning of Cuyler.

       However, Reynolds has successfully demonstrated that Hankins labored

under a conflict of interest in the immediate-post trial proceedings of his case. The

conflict rendered Hankins’s representation of Reynolds constitutionally ineffective

at this post-trial stage. Reynolds is entitled to new post-trial proceedings as a result

of this error.

       Therefore, we affirm the denial of Reynolds’s habeas petition with respect to

his claim of constitutional error at the pre-trial stage of his case. However, we

reverse the district court’s denial of his habeas petition with respect to his claim of

constitutional error at the post-trial stage of the case, and remand the matter to the

district court, with instructions that the DeKalb County Superior Court be directed

to grant Reynolds the opportunity for new post-trial proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                          22
No. 00-12207, Reynolds v. Chapman, et al.

------------------------------------------------------



COX, Circuit Judge, concurring in part and dissenting in part:



       I concur in the court’s opinion rejecting Reynolds’s claim of constitutional

error at the pre-trial stage of his case. But I dissent from the court’s conclusion

that there was constitutional error at the post-trial stage of the case. I would

remand the post-trial claim to the district court for appropriate fact-finding.

       The magistrate judge, despite recommending that Reynolds’s application be

denied, made no findings of historical fact regarding Hankins’s post-trial

representation or whether his post-trial performance was hampered by a conflict of

interest. While the district court rejected Reynolds’s post-trial claim, adopting the

magistrate judge’s conclusion that Reynolds had failed to carry his burden of

proving either that his attorney had an actual conflict or that his performance was

adversely affected by such a conflict, the court did not engage in further fact-

finding.

       What Hankins failed to do post-trial that he ought to have done, and why he

failed to do it, are questions of fact — not questions of law, see Porter v.


                                                23
Singletary, 

, 561 (11th Cir. 1994) — and fact-finding is the job of the

district court. Today’s court, ignoring this principle, proceeds to find the historical

facts and grant relief.

      The court finds “adverse effect” from Hankins conflict in his failure to make

two arguments in support of Reynolds’s motion for a new trial. No remand is

necessary, the court concludes, because the facts are “clear.” The facts, however,

are not clear to me.

      It is always reasonable strategy, I suppose, to file a motion for a new trial in

a criminal case. But the arguments the court finds that Hankins should have

advanced do not possess much substance. See Freund v. Butterworth, 

, 860 (11th Cir. 1999) (en banc) (alternative strategy must possess sufficient

substance to be a viable alternative). There were only two defendants on trial, and

an argument that the jury did not properly distinguish the two defendants in this

case would not impress a trial judge. Similarly, an argument that Reynolds should

get a new trial because Curtis and his mother perjured themselves in an

unsuccessful attempt to exculpate Curtis is also lacking in substance. So, the facts

are not so clear to me, and the proper disposition of this appeal in my view is to

vacate the judgment denying relief on the post-trial claim and remand to the district

court for appropriate fact-finding.


                                          24
25