In the

United States Court of Appeals
               For the Seventh Circuit

No. 06-3995

N EFTALY R ODRIGUEZ,
                                                  Petitioner-Appellee,
                                  v.

JESSE M ONTGOMERY, Chief of Parole,

                                              Respondent-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 02 C 2184—Harry D. Leinenweber, Judge.


        A RGUED M AY 29, 2007—D ECIDED JULY 5, 2007
 R ESUBMITTED S EPTEMBER 4, 2007—D ECIDED F EBRUARY 5, 2010




  Before EASTERBROOK, Chief Judge, and W OOD and W ILLIAMS,
Circuit Judges.
  E ASTERBROOK, Chief Judge. This petition for collateral
relief has been decided three times by the district court
and twice by this one; it has been briefed four times in
this court. Today’s decision is our third encounter with
the subject.
2                                               No. 06-3995

  A state judge disqualified one of Neftaly Rodriguez’s
retained lawyers. After a federal district court concluded
not only that the disqualification had been a mistake,
but also that any such error automatically leads to a writ
of habeas corpus, we reversed. 

(7th Cir.
2004). We held that, because Rodriguez was represented
by one lawyer of his choice, he had to show prejudice
from the disqualification of another. We wrote: “The
[effect] does not have to be great enough to undermine
confidence in the outcome . . . but it must be enough to
show that the defendant’s representation suffered a
setback from the disqualification.” 

  On remand, the district court denied the petition after
concluding that Rodriguez has not established that the
erroneous disqualification had affected his trial. Five
days later, the Supreme Court held in United States v.
Gonzalez-Lopez, 

(2006), that a mistaken
refusal to allow a defendant’s chosen lawyer to represent
him at trial is a “structural” error that requires relief
without regard to prejudice. The district court then re-
versed course and issued a writ of habeas corpus. The
parties’ appellate briefs concentrated on the ques-
tion whether Gonzalez-Lopez applies when a defendant
hires more than one lawyer and is represented at trial by
at least one of his chosen counsel. They did not discuss
whether Gonzalez-Lopez applies to prosecutions that
were finally decided by state courts before it was released.
  Before argument, we directed the parties to file sup-
plemental briefs on that subject. We then held that, al-
though Gonzalez-Lopez applies to multi-lawyer defense
No. 06-3995                                                3

teams, it is not retroactive. 

(7th Cir. 2007).
This left the question posed by our first decision
and answered by the district court’s second: Whether
Rodriguez suffered a setback from the erroneous dis-
qualification. We directed the parties to brief the appeal
for a fourth time. It is at last ready for decision. Long
overdue, actually. The parties have our apologies for
the unnecessary delay.
  Rodriguez was convicted of murder and sentenced to
29 years’ imprisonment. (He was released on parole
after serving only 10 years, but this does not moot his
request for collateral relief. See Spencer v. Kemna, 

, 7 (1998).) After a bench trial, the judge concluded
that Rodriguez was one of three gang members who
battered a member of a rival gang with blunt objects
(such as baseball bats), causing his death. After re-
ceiving Miranda warnings and waiving his right to
counsel, Rodriguez confessed. At trial multiple witnesses
identified Rodriguez as one of the aggressors. Counsel
tried and failed to have the confessions suppressed;
trial counsel (Perry Grimaldi) also cross-examined the
witnesses vigorously in an attempt to undermine confi-
dence in their identifications by bringing out differences
in their descriptions of the events. Grimaldi had
Rodriguez examined by mental-health specialists, hoping
to set up a diminished-capacity defense or show that
Rodriguez lacked the mental capacity to waive his right
to counsel, though the defense ultimately did not present
any expert evidence.
 Joseph Brent was Grimaldi’s co-counsel for several
months, until his erroneous disqualification. Our first
4                                               No. 06-3995

opinion posed the question whether the disqualification
adversely affected the defense. We suggested that this
might be shown “if Brent had expertise that [Rodriguez’s]
other lawyer lacked, or if Brent had planned a line
of defense that co-counsel was unable to sustain on his

. On remand in the district court,
Brent filed an affidavit that did not pursue either of
these possibilities. Instead, Brent said, the defense
suffered for two reasons: First, he “would have added
another perspective” (Brent is a former prosecutor, while
Grimaldi is not); second, he “would have assumed some
of the responsibilities in investigating [and trying] the
case”. At a deposition, Brent stated that there are intangi-
ble benefits of multiple lawyers and observed that he
wanted to have Rodriguez evaluated by a psychiatrist
in order to explore any options that such an evaluation
might yield. Reminded that Grimaldi had done
exactly this, and asked whether he would have pursued
differently any issues arising from Rodriguez’s mental
capacity, Brent said no. The district judge then con-
cluded that no material dispute remained, because
Grimaldi had the same skills as Brent (who conceded in
his deposition that Grimaldi, his classmate in law
school, is a first-rate trial lawyer) and Brent’s participa-
tion would not have changed either the nature of the
defense or the probability of acquittal.
  Rodriguez’s final brief devotes most of its space to
arguing that we erred in 2004 when articulating the
constitutional rule that governs the case, and erred again
in 2007 when holding that Gonzalez-Lopez does not apply
retroactively. That’s water under the bridge, however, as
No. 06-3995                                               5

far as this court is concerned. Rodriguez, who does not
suggest any reason to depart from the law of the case,
has done what is necessary (and more than is required)
to preserve his legal arguments for the Supreme Court.
   He does present one legal argument not resolved in
either 2004 or 2007: Who bears the burden of persuasion
on the question whether the defense suffered a setback
from the erroneous disqualification? The district court
assigned that burden to Rodriguez, who maintains that
it belonged on the prosecution’s side. But we need not
decide who bears the burden under our (superseded)
2004 standard. Let us suppose that the burden should
have been assigned to the state. That would not lead to
a remand for a third round of proceedings in the
district court. Rodriguez could not prevail under pre-
Gonzalez-Lopez law without showing that any error
“had substantial and injurious effect or influence in deter-
mining” the state judge’s decision. Brecht v. Abrahamson,

, 638 (1993). This standard governs even
though the state court thought that no error had occurred
and therefore did not apply any standard of harmless-
error review. Fry v. Pliler, 

(2007); Johnson v.
Acevedo, 

, 403–04 (7th Cir. 2009).
   Brent’s affidavit and deposition are enough to estab-
lish that his disqualification did not cause a “substantial
and injurious effect” at Rodriguez’s trial. Neither Brent
nor Grimaldi contends that the two lawyers differed
materially in knowledge, skills, or strategy. Rodriguez’s
position thus boils down to the generic contention that
two lawyers are better than one, which may be true but is
6                                                  No. 06-3995

not a constitutional proposition. The criminal justice
system reflects the assumption that one competent
lawyer normally is enough. (This was not a capital case,
and even in federal capital prosecutions the entitlement
to a second lawyer is statutory. 18 U.S.C. §3005.) The
prosecution was not so document-heavy that only a
team of lawyers could keep up. Because the record
would not support a conclusion that going to trial with
only one lawyer “had a substantial and injurious effect”
on the outcome, the state judiciary’s erroneous decision
to disqualify Brent is harmless, and Rodriguez is not
entitled to collateral relief.
  Rodriguez contends that we should not apply Brecht
because it would duplicate the prejudice aspect of the
substantive claim. When a petitioner must show
prejudice, as when arguing that counsel furnished inef-
fective assistance, see Strickland v. Washington, 

(1984), it is unnecessary to show prejudice a sec-
ond time through the lens of Brecht. That makes sense
(and it reflects the Supreme Court’s assumption in
Williams v. Taylor, 

(2000)), but it does not assist
Rodriguez. If the applicant for collateral relief must
demonstrate a setback for the purpose of our 2004 deci-
sion, that avoids Brecht but leads to an adverse decision
because neither Brent nor Grimaldi articulated any con-
crete setback from Brent’s disqualification. If the ap-
plicant does not bear such a burden, then Brecht does
apply, and Rodriguez loses for the reasons we have
given. One way or the other, the applicant must show
injury; Rodriguez has not done so.
No. 06-3995                                       7

 The judgment is REVERSED, and the case is REMANDED
with instructions to deny the petition.




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