IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-40697
cons. w/ No. 95-40784
___________________
DAVIS LOSADA,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(87-CV-141)
_________________________________________________
August 14, 1996
Before KING, GARWOOD and WIENER, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Davis Losada (Losada) appeals the
district court’s dismissal of his petition for writ of habeas
corpus challenging his Texas capital murder conviction and death
sentence. Losada contends that: (1) the district court failed to
hold an evidentiary hearing on his ineffective assistance of
counsel claim; (2) the state trial court failed in its duty to
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
inquire into the possibility of a conflict of interest; (3) he
received ineffective assistance of counsel because his attorney was
burdened by an impermissible conflict of interest; and (4) the
district court’s findings regarding his attorney’s cross-
examination of the state’s primary witness are clearly erroneous.
We affirm.
Facts and Proceedings Below
On March 27, 1985, Losada was indicted for capital murder,
committing murder in the course of aggravated sexual assault, in
connection with the rape and beating death of Olga Lydia Perales
(Perales) in Cameron County, Texas. Losada was represented at
trial by court-appointed attorney Jose Luis Peña (Peña).
The evidence adduced at trial concerning Perales’ death and
the testimony of the state’s principal witness, Rafael Leyva, Jr.
(Leyva), was accurately summarized by the district court below as
follows:
“Testimony at trial showed that the body of fifteen year
old Olga Lydia Perales was found on the morning of
December 24, 1984, in a brushy area near San Benito.
Perales had been raped and then beaten and stabbed. A
pathologist testified that the cause of death was several
severe blows to the head which caused a skull fracture.
In addition Perales had been stabbed two times in the
chest but the pathologist testified that since there was
very little internal bleeding from these wounds, the
victim was probably already dead when stabbed.
. . . .
The state’s principal witness was Rafael Leyva, Jr.
Leyva testified that on the night of the murder he had
been driving around, drinking and smoking marijuana with
2
Joe Cardenas, Jesse Romero and [Losada]. They were in
Joe Cardenas’ car. The group eventually ended up at Ray
Amaya’s house. When they got to Amaya’s house, they saw
him coming out of a shed in his backyard. Amaya told
them that he had Olga Lydia Perales in the shed and they
were having sex. After talking with Amaya for a few
minutes, someone said something about taking Perales
home. Amaya called Olga Lydia out of the shed. She came
out and spoke with Amaya and then she got into Cardenas’
car. According to Leyva, he was sitting in the back seat
along with [Losada]. Joe Cardenas was in the driver’s
seat beside Romero and Olga Lydia was sitting next to the
passenger door in the front seat. Before they started
driving away Jesse Romero pushed Olga Lydia’s head down
between her knees and told her not to make any noise.
When Olga Lydia resisted, Jesse Romero pulled out a
knife, held it to her neck and told her to shut up.
Cardenas drove out into the country and stopped the car.
[Losada] remained in the back seat and ordered Olga Lydia
to climb in the back seat. Olga Lydia’s clothing was
removed and, although Olga Lydia pleaded with the quartet
to let her go, she was repeatedly raped. Initially she
was raped by [Losada]. Then she was forced to commit
oral sodomy on [Losada] while first Jesse Romero and then
Leyva had anal intercourse with her. Although Cardenas
did not have intercourse with Olga Lydia, Leyva testified
that he saw Cardenas sticking some object inside Olga
Lydia while she was performing oral sodomy on [Losada].
When everyone else was finished, [Losada] raped Olga
Lydia two more times, once in the back seat of the car
and once on the top of the trunk lid. After the group
had finished it was decided that they had to do something
to keep Olga Lydia from going to the police. Cardenas
pulled a pipe out of the car and handed it to Leyva.
Everyone told Leyva to hit Olga Lydia with it as they had
to make sure she did not tell anyone what had happened.
Leyva testified that he did not want to hit Olga Lydia so
he asked her if she would promise not to tell anyone.
She immediately did so. He told the others that she had
promised not to tell anyone but they all insisted that he
hit her. Leyva argued with the others for several
minutes while Olga Lydia pleaded that she would not tell
anyone. Leyva testified that suddenly his mind went
blank and he took the pipe and hit Olga Lydia on the
right side of the head. Immediately thereafter Jesse
Romero grabbed the pipe and began striking Olga Lydia.
The pathologist testified that she was probably struck 20
to 30 times about the head and shoulder. Leyva testified
that when the blood began squirting out of Olga Lydia’s
3
head, he turned away but he could still hear the others
beating her with the pipe. After the beating stopped,
[Losada] stabbed her once in the chest. Leyva and Jesse
Romero drug the body into the brush and Leyva stabbed her
one more time in the chest. The group then got back in
Cardenas’ car and left the area. During the trip back to
San Benito, they threw the knives out of the car window
and stopped on the bridge and threw the victim’s clothing
into a creek.”
At trial, the district attorney elicited additional testimony
from Leyva on direct examination indicating that his attorney
(Barrera) had negotiated a plea agreement in return for his
testimony allowing Leyva to plead guilty to a charge of sexual
assault carrying a maximum sentence of twenty years on the
condition that he testify truthfully at Losada’s trial. The
district attorney further confronted Leyva with the fact that in
his initial statement to the authorities he had indicated that he
had been involved only in the rape, but had not confessed to his
role in either beating or stabbing Perales. Leyva testified that
he had not told the investigator these things in his initial
statement because he “wanted to protect [himself].” Finally, the
district attorney brought out Leyva’s prior criminal history of
runaways and burglaries as a juvenile.
On cross-examination, Peña asked only the following questions
of Leyva:
“Q: Mr. Leyva, I was reading your statement here
and it says here that at the time of the rape
you stated that you did not know who the girl
was at that time; is that correct?
A: Sir, I didn’t hear you.
. . . .
Q: BY MR. Peña: Mr. Leyva, I was reading one of
4
the paragraphs in your confession, your
statement, and it says here somebody was
raping the girl and that you, at this time,
you didn’t know who the girl was; is that
correct?
A: Yes, Sir.
Q: You didn’t know who she was?
A: No, Sir.”
The jury found Losada guilty of the capital offense, and
following a punishment hearing and the submission of special issues
to the jury, Losada’s punishment was assessed at death. Losada’s
conviction and sentence were affirmed on direct appeal by the Texas
Court of Criminal Appeals. Losada v. State, 721 S.W.2d 305 (Tex.
Crim. App. 1986). Losada did not seek certiorari review by the
United States Supreme Court. On February 5, 1987, the trial court
set Losada’s execution for March 12, 1987. On March 2, 1987, Peña
filed a state habeas petition on Losada’s behalf. The trial court
recommended that relief be denied without holding an evidentiary
hearing. The Texas Court of Criminal Appeals issued a stay of
execution and ordered that an evidentiary hearing be held on the
claim that a court security officer who also served as a witness in
the trial had been in impermissible contact with the jury in
violation of Turner v. Louisiana, 85 S.Ct. 546 (1965). Following
an evidentiary hearing by the trial court, the Texas Court of
Criminal Appeals denied Losada’s writ without written order. Ex
Parte Losada, No. 16,892-01 (Tex. Crim. App. 1987).
Losada’s execution was then scheduled for July 6, 1987. On
July 1, 1987, Peña filed a habeas petition on Losada’s behalf in
5
the United States District Court for the Southern District of
Texas, Brownsville Division, and applied for a stay of execution.
The district court granted a stay of execution, allowed Losada to
file an amended petition, and appointed new counsel. Losada’s
amended petition was filed by his new counsel on October 16, 1987.
Respondent moved to dismiss for failure to exhaust state remedies
and the district court granted the motion, dismissing Losada’s
petition and vacating the stay of execution.
Losada’s execution date was again set for March 22, 1989. On
March 10, 1989, Losada, through his new counsel, filed a second
state habeas petition. The trial court recommended that the
petition be denied, and the Texas Court of Criminal Appeals denied
relief by written order entered March 17, 1989, stating that “none
of the allegations made by applicant in his current writ
application have any merit.” Ex Parte Losada, No. 16, 892-02 (Tex.
Crim. App. 1989).
On March 20, 1989, Losada, through his new counsel, filed a
second federal habeas petition and an application for stay of
execution. In this habeas petition, Losada asserted, inter alia,
that he received ineffective assistance of counsel because his
trial attorney had briefly represented Leyva, the state’s primary
witness, prior to Leyva’s arraignment. Appended to Losada’s second
federal petition was an affidavit by Peña which states:
“On or about April 3, 1985, I received notice from the
197th Judicial District, Cameron County, Texas, to
6
represent Rafael Leyva in Cause No. 85-CR-244-C. The
arraignment on said cause was set for April 11, 1985 at
1:00 p.m. Prior to the day of the arraignment, I visited
with Rafael Leyva at the Cameron County Jail Infirmary,
and interviewed Leyva about the case. On the day of
arraignment, I was advised that Horacio Barrera, would be
representing Rafael Leyva, in said cause. Thereto I
proceeded to leave the courtroom, as I was leaving the
courtroom, Raul Martinez, Administrative Assistant to the
197th District, called me back and advised me that I
would be representing Davis Losada in Cause No. 85-CR-
224-C.”
The district court granted the stay of execution over respondent’s
objection. Respondent appealed the grant of the stay to this Court
which, on March 22, 1990, affirmed the grant of stay and remanded
to the district court for further proceedings. Losada v. Collins,
899 F.2d 13 (5th Cir. 1990)(table). Following remand, the State
filed an answer and motion for summary judgment on August 6, 1991.
The motion for summary judgment urged, inter alia, that no actual,
as opposed to hypothetical or speculative, conflict of interest on
attorney Peña’s part was shown, there was no simultaneous
representation or joint fee arrangement, another attorney had
negotiated Leyva’s plea agreement with the prosecution, and no area
of inquiry or cross-examination of Leyva which Peña should have,
but did not, pursue was identified. The record reveals that no
response to this motion was filed by or on behalf of Losada. After
the State’s motion for summary judgment had been pending without
response for nearly one and a half years, the district court, on
December 16, 1992, entered a memorandum opinion and order denying
Losada’s petition for habeas relief.
7
With regard to the ineffective assistance of counsel claim,
the district court held that Losada failed to demonstrate that Peña
was operating under an actual conflict of interest so as to entitle
him to a presumption of prejudice under the first prong of Cuyler
v. Sullivan, 100 S.Ct. 1708 (1980). Relying on this Court’s
decision in United States v. Olivares, 786 F.2d 659, 663 (5th Cir.
1986), the district court observed, “[t]he Fifth Circuit has held
that ‘active representation of conflicting interests connotes more
than merely cross-examining a former client at an earlier stage in
the case. . . .’” The district court noted that there had been
neither joint representation nor a joint fee agreement as in
Olivares, and that “[a]t the most Losada alleges that his counsel
represented the witness for approximately one week prior to his
arraignment, and interviewed him at that time.” Id. The district
court additionally found that:
“[w]hile counsel’s cross-examination of the witness was
short at best, Losada does not identify any other avenues
of cross-examination that counsel should have, but did
not pursue. The record reflects that counsel emphasized
the witness’ criminal record and, the fact that the
witness’ initial statement to law enforcement officials
discounted his own role in the rape and murder, contrary
to his trial testimony. Therefore counsel’s short cross-
examination may be considered trial strategy. . . .1
After addressing the numerous other errors raised by Losada,
1
The finding by the district court erroneously attributes the
State’s cross-examination of Leyva to defense counsel. However,
because this fact does not alter our conclusion that no actual
conflict was demonstrated by Losada, this error is harmless. Fed.
R. Civ. P. 61.
8
the district court denied relief. Thirty days later, on January
15, 1993, Losada filed a motion to reopen the cause to receive
additional evidence and requested an evidentiary hearing. On the
same day, Losada also filed a notice of appeal from the December
16, 1992, order. Losada sought to submit a second affidavit by
Peña dated January 15, 1993, which states in relevant part:
“My representation of Rafael Leyva was brief but
detrimental to the petitioner. I visited Leyva at the
infirmary where he was detained for protection purposes.
I interviewed Leyva for approximately an hour. We
discussed the purpose of the arraignment, the plea
bargain he had been offered and discussed some of the
facts. Leyva and I showed up for arraignment together in
court. I was advised that I had been removed from
Leyva’s representation and the court had decided to
continue with the proviously [sic] appointed counsel who
in turn had represented Leyva during certification as an
adult. As I walked out of the court, I recall [sic] back
to the courtroom and advised that I had been appointed to
represent the petitioner. I was placed in a situation
where I had a legal obligation to represent the
Petitioner but I also had an ethical obligation to Leyva,
however brief [sic] I had represented Leyva prior to
Petitioner’s representation. It was my belief that the
court knew better [sic] to have appointed me to represent
both defendant [sic] in the same case, knowing one was a
“star” witness for the prosecution. Furthermore, the
appointment was done during the arraignment and
therefore, the court knew or should have known of the
possibility of conflict. He appointed me, I thought it
was fine to represent the petitioner. During the trial
I did not continue to cross-examine Leyva. I could not
cross-examine Leyva without going into what we had
discussed during our interview at the detention center.
The extent of my attack on Leyva was limited primarily to
the closing arguement [sic] and to his testimony on
direct by the state. The Court was aware of my
representation of Leyva and the petitioner since the
appointment of my representation of the petitioner was
during arraignment and in the courtroom. However brief,
the representation of Leyva was detrimental to the
Petitioner. None of our discussions (Leyva) came out
during the trial.”
9
By order entered September 8, 1995, the district court denied
Losada’s pending motions and granted a Certificate of Probable
Cause. Losada, on September 29, 1995, filed a notice of appeal
from the September 8, 1995, order. Losada’s two appeals were
consolidated in this Court.
Discussion
In order to be entitled to an evidentiary hearing before the
district court, a habeas petitioner must allege specific facts
which, if proven, would entitle him to relief. Jernigan v.
Collins, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 113 S.Ct.
2977 (1993); Young v. Herring, 938 F.2d 543, 559-60 (5th Cir.
1991), cert. denied, 112 S.Ct. 1485 (1992). “The [habeas]
petitioner must set forth specific allegations of fact, not mere
conclusory allegations,” Johnson v. Scott, 68 F.3d 106, 112 (5th
Cir. 1995), and “[t]he court need not blindly accept speculative
and inconcrete claims as the basis upon which to order a hearing,”
Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 110
S.Ct. 419 (1989) (internal quotation marks omitted).
Claims of ineffective assistance of counsel based upon an
attorney conflict of interest resulting from joint or serial
representation of multiple clients is governed by the presumed
prejudice standard of Cuyler, 100 S.Ct. at 1717. See Beets v.
Scott, 65 F.3d 1258 (5th Cir. 1995)(en banc), cert. denied, 116
S.Ct. 1547 (1996). “In order to establish a violation of the Sixth
10
Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected
his lawyer’s performance.” Cuyler, 100 S.Ct. at 1718; see also,
Strickland v. Washington, 104 S.Ct. 2052, 2067 (1984); Burger v.
Kemp, 107 S.Ct. 3114, 3120 (1987). The mere “possibility of
conflict is insufficient to impugn a criminal conviction.” Cuyler,
100 S.Ct. at 1719. An actual conflict arises when an attorney
“actively represent[s] conflicting interests,” id; United States v.
Garcia, 77 F.3d 857, 860 (5th Cir. 1996), petition for cert.
filed,(June 17, 1996)(No. 95-9374), or put differently, “when an
attorney represents two clients whose interests in the outcome of
a matter are different.” Perillo v. Johnson, 79 F.3d 441, 447 (5th
Cir. 1996). “[U]ntil a defendant shows that his counsel actively
represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance.”
Cuyler, 100 S.Ct. at 1719.
The adverse effect prong of the Cuyler standard requires a
lesser showing “than the outcome-determinative prejudice standard”
of Strickland. United States v. McCaskey, 9 F.3d 368, 381 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1565 (1994). “[T]o show
adverse effect, a petitioner must demonstrate that some plausible
defense strategy or tactic might have been pursued but was not,
because of the conflict of interest.” Perillo, 79 F.3d at 449.
In his appellant’s brief, Losada, through counsel, argues that
11
he received ineffective assistance of counsel during his state
trial because Peña labored under a conflict of interest arising
from his brief representation of Leyva prior to Leyva’s
arraignment. In particular, Losada urges that an actual conflict
existed because Peña was unable to adequately cross-examine Leyva
without delving into confidences that he received during his brief
interview with Leyva prior to Leyva’s arraignment.
Indeed, “[i]t is well established [sic] that the defendant is
denied effective assistance of counsel in those instances where an
attorney is unable to cross-examine, or is chilled in the cross-
examination of, a government witness because of the attorney/client
privilege arising from counsel’s prior representation of the
witness or from his duty to advance the interests of the witness as
a current client.” United States v. Soudan, 812 F.2d 920, 927 (5th
Cir. 1986), cert. denied, 107 S.Ct. 2187 (1987). As the above-
quoted passage from Soudan suggests, to demonstrate an actual
conflict resulting from successive representation of two clients,
one of whom is now serving as the state’s witness against the
other, it must be demonstrated that some confidences passed between
the attorney and his former client.2 Losada fails to make such a
2
Losada asserts that the law presumes that an attorney
receives confidential communications during the course of
representing a client. While we have applied such a presumption in
the context of motions to disqualify counsel in civil proceedings,
see, e.g., In re American Airlines, Inc., 972 F.2d 605, 614 (5th
Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993), Losada does not
cite nor do we find precedent from this Circuit applying such a
12
showing here.
The initial Peña affidavit does not indicate that any
confidences passed between Peña and Leyva during the course of the
representation. Nor is there any allegation to that effect in
Losada’s second habeas petition (which incorporated Peña’s attached
affidavit). Peña’s affidavit indicates merely that he was
appointed to represent Leyva, “interviewed Leyva about the case”
prior to the arraignment, and after being replaced as Leyva’s
counsel was appointed to represent Losada. That Peña and Leyva
discussed the “case” does not tell us, and more importantly did not
inform the district court, whether they discussed the facts of the
rape-murder as opposed to merely the terms of the plea agreement
which Leyva——through counsel (Barrera) other than Peña——had entered
into with the state, or the purpose of the arraignment. In short,
the affidavit is simply insufficient to reflect that any
confidences passed between Peña and Leyva which would create a
conflict when Peña was later (after his brief representation of
Leyva had terminated) required to cross-examine Leyva at Losada’s
trial.
Peña’s second affidavit more clearly avers: “I did not
continue to cross-examine Leyva. I could not cross-examine Leyva
without going into what we had discussed during our interview at
the detention center.” However, this affidavit was not submitted
presumption to claims under the Sixth Amendment.
13
to the district court until January 15, 1993, nearly one month
after entry of the order denying habeas relief, and well after the
time for filing a motion for new trial. The district court
subsequently denied the motion to reopen to consider this affidavit
and to set aside its December 16, 1992, order.
A district court’s denial of a Rule 60(b) motion is reviewable
only for abuse of discretion. See, e.g., Government Fin. Serv. One
Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 770 (5th Cir.
1995). Treating Losada’s motion as one under Rule 60(b)(2) seeking
relief from the judgment on the grounds of newly discovered
evidence, we find no such abuse of discretion here. There is
certainly nothing to suggest that the second Peña affidavit
constitutes newly discovered evidence at all. The first Peña
affidavit demonstrates that Peña was clearly available to Losada
long before the dismissal of his habeas petition. See Behringer v.
Johnson, 75 F.3d 189, 190 (5th Cir.)(habeas petitioner’s evidence
not newly discovered where knew factual basis of claim prior to
filing petition, and neither presented claim nor asserted that
witness unwilling to provide an affidavit), cert. denied, 116 S.Ct.
1284 (1996). Furthermore, a movant under Rule 60(b)(2) is required
to demonstrate that due diligence was exercised in obtaining the
newly discovered evidence. Id. at 771; New Hampshire Ins. Co. v.
Martech USA, 993 F.2d 1195, 1200-01 (5th Cir. 1993). Losada’s
motion offers no explanation whatever for the failure to obtain and
14
submit the second Peña affidavit earlier in these proceedings other
than that some of the research duties had been assigned to
assisting counsel of record, and counsel’s belief (not assertedly
induced by anything done by the district court or the state) that
an evidentiary hearing would be scheduled pursuant to this Court’s
1990 remand. If anything, the reasons proffered in support of the
motion tend to demonstrate a lack of diligence on the part of
counsel in submitting the second affidavit. After the State’s
motion for summary judgment had been pending for nearly a year and
a half without response from Losada, the district court was
entitled to assume that none was forthcoming. We cannot say on
these facts that the district court abused its discretion in
denying Losada’s January 15, 1993, motion, and accordingly the
second Peña affidavit was not before the district court.3
3
Even if we were to consider the second Peña affidavit, we
would ultimately reach the same result as Losada is unable to
demonstrate any adverse effect which Peña’s asserted conflict of
interest had upon his representation. Although the second Peña
affidavit states that, “I could not cross-examine Leyva without
going into what we had discussed during our interview at the
detention center,” and that “[h]owever brief, the representation of
Leyva was detrimental to the petitioner,” these statements are
wholly conclusory, and there is no indication of either the nature
of the confidences or of what areas of cross-examination of Leyva
they allegedly precluded. As this Court only recently held in
Perillo, “to show adverse effect, a petitioner must demonstrate
that some plausible defense strategy or tactic might have been
pursued but was not, because of conflict of interest.” Perillo, 79
F.3d at 449.
Losada first argues that the attorney/client privilege itself
prevents him from demonstrating any adverse effect because he is
unable to ascertain what additional avenues of cross-examination
conflict-free counsel might have pursued without being privy to the
very information cloaked by the privilege. This argument reflects
15
The mere fact of multiple, much less serial, representation
alone does not establish an impermissible conflict of interest.
See Cuyler, 100 S.Ct. at 1718; see also, United States v. Rico, 51
F.3d 495, 508 (5th Cir.)(joint representation does not necessarily
create conflict of interest), cert. denied, 116 S.Ct. 220 (1995).
Having failed to demonstrate that any confidences passed between
Leyva and Peña, the facts alleged in the affidavits submitted in
a misunderstanding of Perillo. Losada is not required to come
forward with specific information possessed by Leyva which would
exculpate him, but only to identify some strategy or theory which
was foreclosed to Peña as the result of his prior representation of
Leyva. Neither in his brief nor at oral argument was counsel for
Losada able to identify any such theory.
Losada additionally argues that “Peña did not test Leyva’s
credibility with his prior inconsistent statements or his
protective custody status or his many other arrangements with the
State prosecution team and judiciary.” However, none of these
matters were privileged as they had already been placed before the
jury during the state’s direct examination in an effort to
“insulate” Leyva on cross-examination. Because these matters were
not privileged, it follows that Peña’s prior representation of
Leyva in no way prevented him from thoroughly cross-examining Leyva
in order to bring his credibility into question. Not only were
these facts clearly placed before the jury, but Peña attacked
Leyva’s credibility extensively in closing argument on these very
grounds.
When pressed at oral argument, Losada’s counsel argued that
Leyva had testified at Cardenas’ trial that Losada had not told him
to strike Perales, but that the others did. Losada’s counsel noted
that this was inconsistent with Leyva’s testimony at Losada’s trial
in which he indicated that “all” of the others had told him to
strike Perales with the pipe. Losada’s counsel argues that this
inconsistency could have been brought out under proper cross-
examination. However, the record of the Cardenas trial was never
submitted at any stage of this proceeding despite the fact that
Cardenas’ trial was held long before the current federal habeas
petition was filed. See Cardenas v. State, 730 S.W.2d 140 (Tex.
App.--Corpus Christi 1987, no pet.)(direct appeal of Cardenas’
conviction in 1987).
16
support of Losada’s claim present only a potential, as opposed to
an actual, conflict of interest. Such allegations warrant neither
an evidentiary hearing, see Jernigan, supra, nor other habeas
relief.
That a conflict does not necessarily inhere in very instance
of serial representation similarly undermines Losada’s claim that
the state trial court failed in its duty to inquire as to the
existence of a possible conflict of interest. The Supreme Court
explained the limited nature of the state court’s duty in Cuyler as
follows:
“Holloway requires state trial courts to investigate
timely objections to multiple representation. But
nothing in our precedents suggests that the Sixth
Amendment requires state courts themselves to initiate
inquiries into the propriety of multiple representation
in every case. Defense counsel have an ethical
obligation to avoid conflicting representations and to
advise the court promptly when a conflict of interest
arises during the course of trial. Absent special
circumstances, therefore, 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 . . .Unless the trial court knows
or reasonably should know that a particular conflict
exists, the court need not initiate an inquiry.” Cuyler,
100 S.Ct. at 1717 (footnotes omitted).
Assuming, without deciding, that this limited inquiry duty even
applies to cases of serial as opposed to multiple representation,
we find nothing in the record here which constitutionally mandated
such an inquiry by the state court. It is undisputed that there
was no objection at trial. Nor can we accept Losada’s argument
that the fact that the trial court made both appointments and that
17
the appointments appeared on the docket sheet should have triggered
such an inquiry. These facts simply reflect Peña’s successive
representation of Leyva and Losada, and do not necessarily suggest
a conflict of interest. Furthermore, we have held in an analogous
situation that where a federal district court fails to inquire into
the possibility of a conflict of interest in cases of joint
representation as required by Federal Rule of Criminal Procedure
44(c), we will not find reversible error where the record does not
reflect an actual conflict of interest as in the present case.
United States v. Holley, 826 F.2d 331, 333 (5th Cir. 1987), cert.
denied, 108 S.Ct. 1222 (1988).
Accordingly, the judgment of the district court is hereby
AFFIRMED.
18