United States v. Nicholson

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-6347
JACK LAVELTON NICHOLSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., Senior District Judge.
(2:01-cr-00041-HCM-1)

Argued: September 24, 2009

Decided: July 12, 2010

Before KING and DUNCAN, Circuit Judges,
and Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge King
wrote the majority opinion, in which Judge Duncan joined.
Judge Keeley wrote an opinion concurring in part and dissent-
ing in part.

COUNSEL

ARGUED: Marvin David Miller, LAW OFFICE OF MAR-
VIN D. MILLER, Alexandria, Virginia, for Appellant. James
2 UNITED STATES v. NICHOLSON
Ashford Metcalfe, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Heather Golias, LAW OFFICE OF MARVIN D. MILLER,
Alexandria, Virginia, for Appellant. Dana J. Boente, Acting
United States Attorney, Alexandria, Virginia, for Appellee.

OPINION

KING, Circuit Judge:

Jack Lavelton Nicholson has twice been denied 28 U.S.C.
§ 2255 habeas corpus relief in the Eastern District of Virginia
— and has twice appealed — on his claim that he was
deprived of his Sixth Amendment right to effective assistance
of counsel because his lawyer had an actual conflict of inter-
est. More specifically, Nicholson maintains that, during his
sentencing proceedings on a federal firearm offense, his law-
yer declined to move for a downward departure on the basis
of self-defense necessity (a "self-defense departure") in order
to avoid accusing another of the lawyer’s clients of threaten-
ing Nicholson’s life. In Nicholson’s first appeal of the district
court’s denial of § 2255 relief, we reversed the court’s ruling
that there was no conflict of interest, and we remanded for a
determination of whether the conflict adversely impacted the
lawyer’s performance during the sentencing proceedings. See
United States v. Nicholson, 475 F.3d 241 (4th Cir. 2007)
("Nicholson I"). On remand, the court ruled that the conflict
had not adversely affected the lawyer’s performance and,
thus, yet again deemed Nicholson’s claim to be without merit.
See United States v. Nicholson, No. 2:01-cr-00041 (E.D. Va.
Feb. 7, 2008) (the "Remand Opinion").1 In this second appeal,
as explained below, we reverse the court’s denial of § 2255
relief and remand for resentencing.
1
The unpublished Remand Opinion is found at J.A. 757-97. (Citations
herein to "J.A. __" refer to the contents of the Joint Appendix filed by the
parties in this appeal.)
 UNITED STATES v. NICHOLSON 3
I.

A.

On June 6, 2001, Nicholson pleaded guilty in the Eastern
District of Virginia to the offense of possession of a firearm
and ammunition by a felon, in contravention of 18 U.S.C.
§ 922(g)(1). At Nicholson’s August 29, 2001 sentencing hear-
ing, the district court determined that the applicable Sentenc-
ing Guidelines range was 168 to 210 months of imprisonment,
but recognized that the statutory minimum sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), was 180
months.

Significantly, Nicholson’s presentence investigation report
(the "Nicholson PSR") reflected that, when the authorities
found him in possession of the firearm and ammunition,
"Nicholson advised that he possessed the firearm for his own
personal protection." J.A. 858. Importantly, that Nicholson
needed protection at the time of his arrest was acknowledged
by the Government during both the sentencing hearing, see id.
at 50 ("Quite frankly, when he was arrested, there were peo-
ple out to kill him."), and the earlier plea colloquy, see id. at
30 ("He stated that he had the firearm for his personal protec-
tion [and] [i]t’s certainly reasonable to believe that someone
might try to injure him or shoot him."). During his allocution
to the court at sentencing, Nicholson explained that "someone
[had been] out to kill [him]" because his brother was a police
informant, and that the person intending to kill him was
responsible for the attempted murder of his brother and the
murder of his step-father. Id. at 58. Nicholson then stated, "I
was in fear for my life, so, yes, I possessed a gun, but it was
only for my protection." Id.

Although it was broadly understood and accepted that
Nicholson had legitimate reason to fear for his life when the
authorities found him in possession of the firearm, his lawyer,
Jon Babineau, failed to move for a self-defense departure.
4 UNITED STATES v. NICHOLSON
Rather, Babineau sought only a downward departure on the
ground that Nicholson suffered from a serious health condi-
tion, namely sickle cell anemia. The district court rejected this
departure request and sentenced Nicholson to 189 months of
imprisonment — nine months more than the statutory mini-
mum. On direct appeal, Nicholson challenged the court’s
denial of his request for a health-related departure, but we
affirmed. See United States v. Nicholson, 36 F. App’x 151
(4th Cir. 2002).

Thereafter, on June 6, 2003, Nicholson filed his 28 U.S.C.
§ 2255 motion, raising several ineffective assistance claims,
including the claim that Babineau had an actual conflict of
interest that adversely affected his performance during the
sentencing proceedings. See Cuyler v. Sullivan, 446 U.S. 335,
348 (1980) ("In order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.").2 Nicholson’s actual con-
flict of interest claim was based on his postsentencing discov-
ery that, at the same time Babineau was representing
Nicholson in connection with his federal firearm offense,
Babineau was also representing Lorenzo Butts, a major drug
2
In Nicholson I, we described Sullivan as requiring the petitioner to
show "(1) that his lawyer was under ‘an actual conflict of interest’ and (2)
that this conflict ‘adversely affected his lawyer’s performance.’" Nichol-
son I, 475 F.3d at 249 (quoting Sullivan, 446 U.S. at 348). In so doing,
we followed a longstanding practice of our Court. See, e.g., Mickens v.
Taylor, 240 F.3d 348, 355 (4th Cir. 2001) (en banc) (delineating same
two-part test), aff’d, 535 U.S. 162 (2002). In the Supreme Court’s Mickens
decision, however, the Court clarified that "the Sullivan standard is not
properly read as requiring inquiry into actual conflict as something sepa-
rate and apart from adverse effect. An ‘actual conflict,’ for Sixth Amend-
ment purposes, is a conflict of interest that adversely affects counsel’s
performance." 535 U.S. at 172 n.5. Thus, we now describe and apply Sul-
livan as requiring the petitioner to show, in order to prevail on an actual
conflict of interest claim, that (1) petitioner’s lawyer operated under a
"conflict of interest" and (2) such conflict "adversely affected his lawyer’s
performance." Sullivan, 446 U.S. at 348.
 UNITED STATES v. NICHOLSON 5
dealer and the very person who had threatened Nicholson’s
life and was intent on killing him. On October 15, 2003, the
district court denied § 2255 relief without conducting a hear-
ing. See United States v. Nicholson, No. 2:01-cr-00041 (E.D.
Va. Oct. 15, 2003) (the "First Opinion").3 In assessing the
actual conflict claim, the court concluded that Babineau did
not have a conflict of interest. Thus, the court did not address
whether any conflict had adversely affected Babineau’s per-
formance during Nicholson’s sentencing proceedings.

B.

Nicholson appealed from the First Opinion’s denial of
§ 2255 relief and, on November 10, 2004, we granted Nichol-
son a certificate of appealability ("COA") on a single issue:
"Did an actual conflict of interest cause his counsel to render
constitutionally ineffective assistance when he failed to move
for a downward departure?" See Nicholson I, 475 F.3d at 244
(internal quotation marks and alteration omitted).4 In our sub-
sequent Nicholson I decision of February 2, 2007, we summa-
rized the conflict claim as follows:

Nicholson asserts that his lawyer was operating
under an actual conflict of interest at his August 29,
2001 sentencing hearing because, at that time, Nich-
olson’s lawyer, Jon Babineau, was representing
Nicholson as well as another client, Lorenzo Butts.
Butts had previously threatened to kill Nicholson
and his family, had attempted to kill Nicholson’s
brother, and had already killed Nicholson’s step-
3
The unpublished First Opinion of the district court is found at pages
256-71 of the Joint Appendix filed by the parties in the Nicholson I appeal
(No. 04-6092).
4
A § 2255 petitioner is not entitled to pursue an appeal from the denial
of relief unless he has been granted a COA. See 28 U.S.C.
§ 2253(c)(1)(B). In order to obtain a COA, the petitioner must make "a
substantial showing of the denial of a constitutional right." Id.
§ 2253(c)(2).
6 UNITED STATES v. NICHOLSON
father. Nicholson, who was convicted of a federal
offense for his possession of a firearm and ammuni-
tion by a felon, asserts that he carried the handgun
to protect himself from Butts. Nicholson maintains
that Babineau, during the sentencing proceedings,
failed to request a downward departure based on
Nicholson’s need to carry the handgun because, in so
doing, Babineau would have accused his other client
(Butts) of uncharged criminal conduct. Nicholson
asserts that an actual conflict of interest thus existed,
and that it adversely affected the performance of his
lawyer during the sentencing proceedings, in contra-
vention of his Sixth Amendment right to the effec-
tive assistance of counsel.

Id. Because the district court had considered affidavits and
other materials submitted by the parties — but had not con-
ducted an evidentiary hearing — we characterized the court’s
ruling in the First Opinion as akin to a summary judgment
award to the Government and, thus, viewed the facts in the
light most favorable to Nicholson. See id. at 248.

In assessing Nicholson’s actual conflict of interest claim,
we first concluded that, "[c]ontrary to the district court’s rul-
ing," lawyer Babineau’s simultaneous representation of Nich-
olson and Butts created a conflict of interest. Nicholson I, 475
F.3d at 249. We explained, in short, that "Nicholson’s inter-
ests, on the one hand, and Butts’s interests, on the other, were
in total opposition to each other during Babineau’s simulta-
neous representation of them." Id. at 249-50. This simulta-
neous representation placed Babineau "in the position of
having to make claims against Butts in order to pursue a
downward departure motion, on the basis of self-defense
necessity, in Nicholson’s sentencing hearing." Id. at 251.
Because Babineau was "in the untenable position of having to
place the interests of one client (either Butts or Nicholson)
above another (either Nicholson or Butts)," Babineau was
impaired by a conflict of interest during Nicholson’s sentenc-
 UNITED STATES v. NICHOLSON 7
ing proceedings. Id. Accordingly, we reversed the district
court’s ruling that a conflict of interest did not exist. Id. at
252.

On the issue of whether Babineau’s conflict adversely
affected his performance in Nicholson’s sentencing proceed-
ings, we observed that a § 2255 petitioner must satisfy, by a
preponderance of the evidence, the three-part standard estab-
lished in Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001)
(en banc), aff’d without consideration of this point, 535 U.S.
162 (2002). See Nicholson I, 475 F.3d at 251-52. More specif-
ically, we explained:

He must, first of all, "identify a plausible alternative
defense strategy or tactic that his defense counsel
might have pursued." [Mickens, 240 F.3d at 361].
Second, he must establish that "the alternative strat-
egy or tactic was objectively reasonable under the
facts of the case known to the attorney at the time of
the attorney’s tactical decision." Id. In order to sat-
isfy this second prong, "the petitioner must show that
the alternative strategy or tactic was ‘clearly sug-
gested by the circumstances.’" Id. (quoting [United
States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991))].
Lastly, he must show that "the defense counsel’s
failure to pursue that strategy or tactic was linked to
the . . . conflict." Id. In establishing these three
aspects of this test, the petitioner is not required to
show that the strategy or tactic not taken would have
been successful, but only that it would have been
objectively reasonable. See id.

Nicholson I, 475 F.3d at 252. We also observed that "‘much
of the adverse effect inquiry is heavily fact dependent,’" and
that we generally must "defer to a habeas court’s findings of
fact." Id. (quoting Mickens, 240 F.3d at 360). We further rec-
ognized, however, that the district court here "did not conduct
a hearing and resolve the disputed factual contentions," nor
8 UNITED STATES v. NICHOLSON
did it "reach and address whether Babineau’s conflict
adversely affected his performance in Nicholson’s sentencing
proceedings." Id. As such, we deemed ourselves "obliged to
remand for a determination and assessment of the relevant
facts" on the adverse effect issue. Id.5

C.

1.

At the time of the First Opinion, the evidence before the
district court included affidavits executed by Nicholson, sev-
eral of his family members, and lawyer Babineau, as well as
police and court documents related to Nicholson, Butts, and
Babineau’s simultaneous representation of these two clients.6
The evidence reflected that, on January 7, 2001, Nicholson
was arrested in Portsmouth, Virginia, on a state charge of pos-
session of a firearm by a felon, immediately after city police
officers found a handgun on Nicholson’s person. At the time
5
Notably, in Nicholson I, we rejected the Government’s contention "that
there was no adverse impact on Nicholson because it was not objectively
reasonable for Babineau to move for a downward departure, as Nichol-
son’s minimum Guidelines sentence was already lower than the statutory
minimum." Nicholson I, 475 F.3d at 251 n.12. We explained that Nichol-
son
was required to move for a downward departure prior to the
court’s final sentencing decision and, at that time, the Nicholson
PSR’s recommendation was merely that — a recommendation.
Furthermore, Babineau actually moved for a downward departure
based on another theory (Nicholson’s health situation). Although
a motion for a downward departure on self-defense necessity may
have proven futile, the advancement of that theory, along with the
presentation of supporting evidence, may have convinced the
court to sentence Nicholson to the statutory minimum instead of,
as imposed, nine months above the minimum.
Id.
6
Our account herein of the evidence before the district court at the time
of the First Opinion is largely drawn from the more detailed account in
Nicholson I. See 475 F.3d at 244-47.
 UNITED STATES v. NICHOLSON 9
of his arrest, Nicholson stated to the authorities that, because
he feared Butts and his associates, he had obtained the hand-
gun for his personal protection.

Nicholson’s statements indicated that this fear arose after
his brother, Rudolph Nicholson, agreed in early 2000 to assist
federal officers in their criminal investigation of Butts and his
associates — prompting Butts to issue a series of threats
against Rudolph and other Nicholson family members.7 On
March 3, 2000, brother Rudolph was shot seven times by
Butts’s son in Portsmouth, but survived the attack. Rudolph
was treated for two months in a Norfolk, Virginia hospital,
where a would-be assassin disguised as a priest — actually
Butts himself — unsuccessfully attempted to enter Rudolph’s
room and kill him. Around May 2000, federal officers
informed Nicholson and his mother, Sandra Nicholson (whom
Butts also threatened), that Butts had placed a contract on
Nicholson’s life. On September 18, 2000, Nicholson’s step-
father, Charles Nicholson, was fatally shot multiple times on
a Portsmouth street by Butts and his accomplices.

Following the murder of his step-father, Nicholson
obtained a handgun from a friend and left Portsmouth to stay
with his cousin in the Washington, D.C. area. When Nichol-
son first came into possession of the handgun, it did not work,
and he left it at a gun shop in Chesapeake, Virginia (near
Portsmouth), to be repaired. On January 6, 2001, during a
visit to Portsmouth, Nicholson retrieved the handgun from the
gun shop. The following day, he was arrested with the hand-
gun and charged by the Commonwealth with a state firearm
offense.

Lawyer Babineau was retained to represent Nicholson on
7
We refer herein to the appellant as "Nicholson"; to his brother (actually
his half-brother) as "Rudolph Nicholson" or "Rudolph"; to their mother as
"Sandra Nicholson" or "Sandra"; and to Nicholson’s step-father
(Rudolph’s father) as "Charles Nicholson" or "Charles."
10 UNITED STATES v. NICHOLSON
the state firearm charge, which was eventually dropped and
replaced by the federal charge under 18 U.S.C. § 922(g)(1).
Babineau’s representation of Nicholson continued over to the
federal charge. Nicholson was indicted by the federal grand
jury on March 23, 2001, two months after his state arrest, and
he was taken into federal custody on April 3, 2001. Shortly
thereafter, on May 29, 2001, Babineau publicly debuted as
Butts’s counsel, appearing for Butts at a preliminary hearing
conducted in a Virginia state court in Portsmouth on conspir-
acy, murder, and firearms charges. Both prior to and during
the time Babineau was representing Butts in these state pro-
ceedings, Babineau was also representing and advising Nich-
olson on whether he should accept a proposed plea agreement
from the United States Attorney on Nicholson’s federal
charge. Babineau never informed Nicholson that he was
simultaneously representing Butts on state criminal charges,
nor did Babineau seek Nicholson’s consent to represent Butts
during the same time frame.

According to their affidavits, Nicholson and his mother
both had repeatedly advised Babineau — during his represen-
tation of Nicholson — that Nicholson possessed the handgun
for protection from Butts. They had also explained to
Babineau the source of Nicholson’s fear: that Butts had
placed a contract on Nicholson’s life and had already killed
Charles Nicholson, threatened Sandra Nicholson, and
attempted to kill Rudolph Nicholson. Babineau averred in his
affidavit, however, that Nicholson had advised that "his pos-
session of a firearm was not one out of fear of anyone in par-
ticular, including Butts, but that he carried a firearm because
of the activity that he was involved in, which created danger-
ous situations." J.A. 164. Babineau further averred that San-
dra never mentioned Butts or his threats, and spoke with
Babineau only about an effort to obtain a downward sentenc-
ing departure for Nicholson premised on his substantial assis-
tance to law enforcement. In any event, during discovery in
the federal prosecution of Nicholson, Babineau received writ-
ten police reports reflecting statements made by Nicholson
 UNITED STATES v. NICHOLSON 11
regarding his possession of the handgun. In these statements
to state and federal officers, Nicholson specified that he had
carried the handgun for protection against Butts and his asso-
ciates, but that he did not have any information regarding
Butts and was not even sure what Butts looked like.

On June 6, 2001, Nicholson — represented by lawyer
Babineau — pleaded guilty to the federal firearm offense.
During the plea colloquy, the Government acknowledged to
the district court that it was reasonable to believe that some-
one might try to injure or shoot Nicholson. Two weeks later,
on June 22, 2001, in ongoing federal criminal proceedings
against Butts in the Eastern District of Virginia (separate from
his state proceedings), Butts notified the court that he would
be represented at sentencing by Babineau.8 As such, Babineau
then received a presentence investigation report on Butts (the
"Butts PSR"), which contained information implicating Butts
in both Rudolph Nicholson’s shooting and Charles Nichol-
son’s murder. The Butts PSR also stated that Butts’s "hit list"
included Nicholson.9 On July 23, 2001, the Nicholson PSR
was issued, and it pointed out that Nicholson had advised the
authorities that he carried the handgun for protection because
he feared an individual who was trying to harm him. The next
8
On April 30, 2001, a federal jury had found Butts guilty of multiple
federal crimes, including conspiracy, drug distribution, and firearm
offenses.
9
The Butts PSR, provided to Babineau in June or July 2001, reflected
the following: in March 2000, Butts’s son shot "Unindicted Co-
conspirator #7" (Rudolph Nicholson) and was subsequently scolded by
Butts "for not shooting [Rudolph] in the head as he had been instructed";
after Butts’s son was shot and killed in September 2000, "Butts made an
oral ‘hit list’ of people he intended to have killed," including Charles
Nicholson, Rudolph Nicholson, and appellant Jack Nicholson (misidenti-
fied in the Butts PSR as "Jake Nicholson"); and, shortly after Charles
Nicholson’s murder later in September 2000, Butts admitted that "he and
several other individuals" driving together from Norfolk to Portsmouth
had spotted Charles standing alone on a Portsmouth street corner, "circled
the block, then exited the vehicle and fired on [Charles], who died as a
result of the gunshot wounds." J.A. 912.
12 UNITED STATES v. NICHOLSON
day, July 24, 2001, Babineau served as Butts’s lawyer at sen-
tencing in his federal proceedings, during which the court
adopted the Butts PSR. Babineau also represented Butts on
his appeal to this Court, which was filed on July 31, 2001. As
part of that appeal, Babineau maintained, inter alia, that the
trial court had erred by admitting evidence of Butts’s prior
bad acts, including the attempted murder of Nicholson’s
brother Rudolph and the murder of his step-father Charles. On
August 20, 2001, the Government responded to the Nicholson
PSR, stating that it had no objection to the facts set forth
therein (including Nicholson’s claim that he carried the hand-
gun for self-protection). A week later, during Nicholson’s
August 29, 2001 sentencing hearing, the Government again
confirmed to the court that certain individuals were trying to
kill Nicholson at the time of his arrest. Babineau, however, in
his representation of Nicholson, failed to address any of the
circumstances surrounding Nicholson’s firearm possession or
to request a self-defense departure.

2.

On remand from our Nicholson I decision, the parties
engaged in discovery and the district court conducted a Janu-
ary 30, 2008 evidentiary hearing. The evidence adduced on
remand included testimony taken at depositions and during
the hearing.

a.

During his videotaped deposition of September 4, 2007,
Nicholson testified about his brother Rudolph Nicholson’s
cooperation with the authorities in their investigation of Butts
and his associates; the threats made by Butts against Rudolph
and other Nicholson family members; the shooting of
Rudolph in March 2000; the federal agents’ disclosure to
Nicholson in May 2000 that he was on Butts’s "hit list" and
that his "life was in danger," J.A. 351-52; and the murder of
his step-father Charles Nicholson in September 2000. Accord-
 UNITED STATES v. NICHOLSON 13
ing to Nicholson, a friend offered him a handgun after learn-
ing of Charles’s murder, which had occurred earlier that same
day. Nicholson accepted the handgun, which was not in work-
ing condition. On the day of Charles’s funeral, Nicholson
took the handgun to a Chesapeake gun shop called Chesa-
peake Gun Works to be repaired, and then left to stay with his
cousin in the Washington, D.C. area. While there, Nicholson
learned that Butts had been arrested by federal authorities, but
Nicholson remained fearful of Butts because "he had people
do his work for him." J.A. 358.

Nicholson further testified that, while living in the Wash-
ington, D.C. area, he periodically visited Portsmouth to meet
with his probation officer and returned home for Christmas.
Beginning on December 26, 2000, he was hospitalized for
several days because of his sickle cell anemia. Upon his
release in early January 2001, Nicholson stayed with his
mother at her house in Portsmouth. Around that time, Nichol-
son heard "street rumors" that Butts’s associates were "still
looking for [him]" and that there "was a cash reward for [his]
whereabouts." J.A. 362. On January 6, 2001, Nicholson went
to Chesapeake Gun Works to pick up the now-repaired hand-
gun and purchase a box of ammunition. The next day, January
7, 2001, Portsmouth police officers found Nicholson with the
handgun and arrested him.

Babineau was retained to represent Nicholson on both the
initial state charge and the replacement federal charge. Prior
to his plea, Nicholson pushed for Babineau to move to sup-
press the firearm, as well as to assert justification as a com-
plete defense to the 18 U.S.C. § 922(g)(1) offense, but
Babineau pursued neither of those tactics. Nicholson testified
that he subsequently learned from the probation officer who
prepared the Nicholson PSR that he might be eligible for a
self-defense departure at sentencing. Nicholson then urged
Babineau to seek such a reduction, but Babineau advised that,
in the words of Nicholson, "he couldn’t find [any] Fourth Cir-
14 UNITED STATES v. NICHOLSON
cuit case that dealt with that so it wouldn’t apply." J.A. 436.10
Nicholson reiterated that lawyer Babineau never disclosed his
simultaneous representation of Butts, even though Babineau
knew of Butts’s threats against Nicholson and Nicholson’s
claim that he possessed the firearm for protection from Butts.

Additionally, Nicholson averred that he had never dis-
cussed his criminal history with Babineau. Nicholson
10
Nicholson’s testimony that he urged Babineau to move for a self-
defense departure is corroborated by two letters that were made part of the
record on remand. In the first of these letters, dated July 9, 2001 (during
the period between Nicholson’s guilty plea and sentencing), Nicholson
requested Babineau to "check on if [it’s] possible to get a downward
departure for instance when the defendant is a victim. The P.O. [probation
officer] was telling me something to that effect and he would check into
it." J.A. 470. In the second letter, which is undated, Nicholson wrote to
Babineau:
I have a copy of a newspaper article that I would like you to
check out. I’m hoping this can help me out. I really think we need
to let the courts know that it was more of a self defense case than
anything . . . . For real[,] Mr. Babineau, I wasn’t out there run-
ning wild in the streets with a gun just for the hell of it. I mean
I just got the gun the day before which the ATF knows this
because they went to the gun shop where I got it fixed. It been
there like 3 months during the time I left the area to get away. I
came back Dec. 23rd[,] went in the hospital Dec. 26th[,] [and]
got discharged Jan. 2nd[.] I decided I was gonna stay home to be
close to my girlfriend while she was pregnant so I went and got
[the gun] because of the things that was going on with my
brother.
I know we been through this before but I really think this needs
to be brought up especially with what is being said in the article
[that’s] included.
Id. at 471. Nicholson enclosed a newspaper article reporting a recent deci-
sion of the Virginia Court of Appeals authorizing juries to "consider
whether a felon was justified in using a weapon in self-defense." Id. at
472. Nicholson wrote on the copy of the article: "I had an actual contract
out on me! Please help me[.] [T]here [has] got to be some kind of justice
for me. I’m not saying I should go free but I’m saying I [don’t] deserve
16 years for protecting myself and my family!!!" Id.
 UNITED STATES v. NICHOLSON 15
acknowledged that he had prior convictions on various felony
offenses, each of which involved either firearms or controlled
substances, but not both. This testimony is consistent with the
Nicholson PSR, which reflected that, in April 1991 (at age
seventeen), Nicholson fired a .38 caliber revolver at a group
of people standing outside a Portsmouth fast food restaurant;
in November 1991 (at age eighteen), he was found by police
officers with 1.44 grams of cocaine base ("crack") in a Ports-
mouth housing project; and, in December 1991 (also at age
eighteen), he shot into an occupied vehicle in Portsmouth.
Nicholson was separately convicted and sentenced on state
charges arising from each of these three incidents, and he was
incarcerated in a state prison until March 1999. While incar-
cerated, Nicholson was found with marijuana in May 1997
and heroin in October 1997; he was convicted in January
1998 on two state drug possession charges and given two sus-
pended sentences. These were his most recent offenses (other
than an October 2000 driving offense) at the time he was
arrested with the handgun on January 7, 2001. Nicholson dis-
claimed carrying or possessing any other firearm between his
March 1999 release from state prison and his September 2000
receipt of the handgun from a friend on the day of his step-
father Charles Nicholson’s murder.

b.

Two agents of the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives (the "ATF"), John Underwood and
Marvin Logwood, testified at the January 30, 2008 evidenti-
ary hearing at the Government’s behest. ATF Agent Under-
wood had interviewed Nicholson on the day of his January 7,
2001 arrest, after Nicholson gave statements to the two Ports-
mouth police officers who had arrested him. In his statements
to Agent Underwood and the Portsmouth officers, Nicholson
consistently maintained that he possessed the handgun, a
nine-millimeter semi-automatic pistol, for protection from
Butts. Nicholson explained that Butts had placed a "hit" on
him because of brother Rudolph Nicholson’s cooperation with
16 UNITED STATES v. NICHOLSON
the authorities, and also because Butts apparently believed —
incorrectly — that Nicholson himself was involved in the
recent murder of Butts’s son, Vito Butts (who had previously
shot Rudolph).

In an effort to provide Nicholson an opportunity to render
substantial assistance to the Government and thereby obtain
relief under the Sentencing Guidelines, Babineau arranged
(but did not attend) another interview of Nicholson by ATF
Agent Underwood. See USSG § 5K1.1 (2000) (authorizing
court to grant downward departure, upon Government’s
motion, where defendant provides substantial assistance in
investigation or prosecution of another person). This inter-
view was conducted on April 12, 2001, prior to Nicholson’s
sentencing, in a Chesapeake hospital where Nicholson was
being treated for sickle cell anemia. Agent Underwood
described the interview as an "off the record" proffer during
which Nicholson was to provide information to the Govern-
ment about Butts. According to Underwood’s written notes of
the interview, Nicholson stated that Butts had paid Rudolph
Nicholson three separate times "not to come to court," giving
the money to Charles Nicholson "as a go between." J.A. 507.
Nicholson spoke with Charles the morning of Charles’s mur-
der and asked him to tell Butts that Nicholson "didn’t have
anything to do with Vito’s murder." Id. Charles responded
that Butts "was crazy and wouldn’t listen." Id. The day after
Charles’s murder, Nicholson "rented a minivan and drove
around for a couple days thinking about revenge," but he did
not act because he "didn’t have anything" with which to exact
revenge on Butts. Id. at 508.11 Nicholson then left Portsmouth
to "hide out" in the Washington, D.C. area. Id. Sometime
before Christmas of 2000, after Butts had been arrested, Nich-
olson’s grandmother urged him to return to Portsmouth
11
Testifying during the evidentiary hearing, Agent Underwood clarified
that when Nicholson stated he "didn’t have anything," he was referring to
the fact that the firearm he had obtained immediately following Charles
Nicholson’s murder "did not work." J.A. 633.
 UNITED STATES v. NICHOLSON 17
because he ran the risk of parole violations and "had a baby
on the way." Id. Nicholson did not provide any other informa-
tion concerning Butts during the April 12, 2001 interview.
Thereafter, according to Agent Underwood’s evidentiary
hearing testimony, Underwood concluded that Nicholson "had
no use in the trial against Mr. Butts." Id. at 632.

During the April 12, 2001 interview by ATF Agent Under-
wood, Nicholson revealed information about his own drug
dealing and other persons involved therein. Agent Underwood
testified that Nicholson admitted during the interview that he
dealt drugs from "the early ‘90s, 1990 through I guess the
point where he was arrested" on January 7, 2001. J.A. 631.
Underwood acknowledged on cross-examination, however,
that neither Nicholson nor his companion at the time of the
January 7, 2001 arrest possessed any drugs, drug parapherna-
lia, or other indicia of drug dealing, such as large sums of
cash. See id. at 635. Underwood also acknowledged that, by
the time of Nicholson’s 2001 arrest on the firearm charge,
"law enforcement knew about Mr. Butts and his [well-
deserved] reputation . . . for being violent and dangerous,"
and also knew that Butts "had plenty of associates out there"
and that not "everybody that he knew or had ever done any
criminal work for him" was (like Butts and many of his
known associates) then incarcerated. Id. at 636.12 Addition-
ally, Underwood testified that, other than the handgun with
which Nicholson was arrested, he knew "of no other guns" in
Nicholson’s possession during the same general time period
(approximately spanning from Charles Nicholson’s murder in
September 2000 to Nicholson’s arrest on the replacement fed-
eral charge in April 2001). Id. at 639.
12
Notably, Agent Underwood’s testimony about Butts’s known danger-
ousness prompted the Government to assert during the hearing that it was
"not saying that [Nicholson] had no reason to believe that other henchmen
out there on the street would be a danger to him. We have never taken that
position." J.A. 636-37.
18 UNITED STATES v. NICHOLSON
Following his August 29, 2001 sentencing hearing, Nichol-
son submitted to another interview with a federal agent, this
time in an effort to obtain sentencing relief under Federal
Rule of Criminal Procedure 35(b). See Fed. R. Crim. P.
35(b)(1), (4) (authorizing court, upon Government’s motion
made within one year of sentencing, to reduce sentence below
statutory minimum if defendant, "after sentencing, provided
substantial assistance in investigating or prosecuting another
person"). This interview was conducted on September 4,
2001, by ATF Agent Logwood. During his interview with
Agent Logwood, Nicholson again provided information about
Butts, as well as information about his own drug dealing,
which Nicholson admitted began when he was a teenager and
continued through the time of his arrest in April 2001 on the
replacement federal charge. Logwood testified at the evidenti-
ary hearing about his conclusion that, although Nicholson was
"truthful," there was nothing "new" in his information "that
led to furtherance of [the Butts] investigation." J.A. 650. Log-
wood also acknowledged on cross-examination Butts’s repu-
tation "in law enforcement and in the community" for being
"a violent, dangerous, murderous character," id. at 648, and
the absence of evidence that Nicholson possessed any firearm
— other than the handgun with which he was arrested on Jan-
uary 7, 2001 — between his release from state prison in 1999
and his federal arrest in April 2001.

c.

Lawyer Babineau testified in an August 9, 2007 deposition
and at the January 30, 2008 evidentiary hearing. During the
deposition, Babineau averred that he had discussed with Nich-
olson — prior to Nicholson’s guilty plea — the possibility of
raising justification as a complete defense to Nicholson’s fed-
eral charge under 18 U.S.C. § 922(g)(1). In this regard,
Babineau testified that he "told [Nicholson] a number of
things, and one of them was . . . that the [complete justifica-
tion defense,] in order to be deemed to be credible, or
believed by a jury, was going to [require Nicholson] to take
 UNITED STATES v. NICHOLSON 19
the stand and testify" — exposing Nicholson to cross-
examination about his criminal record and "other statements
that would be attributed to him." J.A. 246. Babineau further
testified that,

[s]econdly, and very importantly, is that I was not
going to suborn perjury for Jack Nicholson. Jack
Nicholson had told me that he was not afraid of
Butts. That’s contradictory to other statements that
he made to law enforcement and otherwise, but he
wasn’t afraid of Butts. . . . [H]e carried a gun
because he was a drug dealer and he used the gun for
protection. Was it protection from Butts and his
folks? I’m sure it was. But it was also protection
from the many other people that he dealt drugs to
and dealt drugs with on the streets of Portsmouth.

Id. at 246-47. Babineau added that, in looking at Nicholson’s
criminal record "with all of the violence that he had in there,
including gun violence and drugs, it was clear to me that that
all made sense. He was telling me that he carried a gun
because of the trade, the practice that he was in." Id. at 247.
Nevertheless, Babineau acknowledged that he did not have
any evidence, "[e]xcept what my client told me," contradict-
ing Nicholson’s claim to the authorities that he possessed the
firearm on January 7, 2001, for protection from Butts. Id. at
305.

At the evidentiary hearing, Babineau expounded on his
views of Nicholson’s criminal history, testifying that it
revealed to him that Nicholson "was a very violent person
who had always carried a firearm." J.A. 660. Babineau also
testified that, "[i]n our conversations, [Nicholson] told me
repeatedly, more than once or twice or three times, that he
carried a gun always. He always had." Id. at 661. According
to Babineau, he specifically asked Nicholson whether he
feared Butts, and Nicholson responded "that he was not afraid
of Butts." Id. Nicholson ultimately agreed with Babineau that
20 UNITED STATES v. NICHOLSON
a complete justification defense to the 18 U.S.C. § 922(g)(1)
charge would be unsuccessful. See id. at 662.13 Thereafter,
however, despite Nicholson’s exhortations that he do so,
Babineau refused to request a self-defense departure at sen-
tencing. Babineau explained that he did not make such a
departure motion because he was not "in a position . . . to
argue ethically to the Court that [Nicholson] possessed a gun
because he was fearful of Mr. Butts," as Nicholson had told
Babineau "that that’s not the reason why he carried a gun." Id.
at 672. Babineau acknowledged, however, that he knew from
the Butts PSR that the Government had evidence tending to
show that Butts had placed Nicholson on a "hit list" and was
involved in the murder of Charles Nicholson and the
attempted murder of Rudolph Nicholson — evidence that
included witnesses other than Nicholson himself. See id. at
689-90. Babineau also conceded that he knew it was not nec-
essary for Nicholson to testify at sentencing in support of a
self-defense departure motion, and that he "knew that there
were facts and witnesses in the Government’s arsenal of
things about Butts [being] a violent man and [making] threats
against Nicholson." Id. at 690-91.

Babineau repeatedly stated during the evidentiary hearing
that he did not perceive a conflict of interest at the time he
was representing both Nicholson and Butts, nor did he pres-
ently believe a conflict had ever existed. See, e.g., J.A. 670-71
("I do not believe there existed a conflict between my repre-
sentation of Mr. Nicholson, with all due respect to the Fourth
Circuit’s opinion, and my representation of Mr. Butts.").
Babineau recalled that, following Nicholson’s April 12, 2001
interview by ATF Agent Underwood, Nicholson "told
[Babineau] what he told the agents" — specifically, that Nich-
olson "was not involved with Butts" and "that it was his
13
In his letter to Babineau of July 9, 2001, Nicholson wrote that he
knew he did not "have a chance with trial" absent suppression of the fire-
arm, but he did not expound on why he believed that to be the case. See
J.A. 470.
 UNITED STATES v. NICHOLSON 21
brother, Rudolph[,] [who] was a big time drug dealer . . .
involved with Butts," though when Nicholson "returned back
to the Tidewater area, . . . he started selling heroin again in
Portsmouth." Id. at 659-60. Babineau further recalled that he
had been informed by the prosecution, following Nicholson’s
interview by Underwood, that Nicholson had not provided
any useful information about Butts. Babineau did not receive
or review Underwood’s notes of the interview until years
later, a couple of days before Babineau’s August 9, 2007
deposition.

During both his deposition and the evidentiary hearing,
Babineau testified that he had lost most of his client files on
Nicholson and Butts, but had turned over to the Government
those files he could find (without Nicholson’s or Butts’s
authorization and despite Nicholson’s request for his own
files). The existing files did not include any contemporaneous
notes of Babineau’s discussions with Nicholson.

3.

In assessing the adverse effect issue in the Remand Opin-
ion, the district court ruled that Nicholson satisfied the first
prong of the three-part Mickens standard, because "[t]here
existed ‘a plausible alternative defense strategy or tactic that
[lawyer Babineau] might have pursued.’" Remand Opinion 38
(quoting Mickens, 240 F.3d at 361). The court further deter-
mined, however, that Nicholson failed to satisfy the second
and third Mickens prongs, in that he failed to establish by a
preponderance of the evidence that such "‘alternative strategy
or tactic was objectively reasonable under the facts of the case
known to [Babineau] at the time of [his] tactical decision,’"
and that Babineau’s "‘failure to pursue that strategy or tactic
was linked to the . . . conflict.’" Id. (quoting Mickens, 240
F.3d at 361). Thus, the court once again denied Nicholson
relief under 28 U.S.C. § 2255. See id. at 41.

Nicholson timely noted this appeal and, on June 25, 2008,
we granted a COA "as to the issue of whether counsel’s actual
22 UNITED STATES v. NICHOLSON
conflict had an adverse effect on [Nicholson’s] sentencing
proceeding." We possess jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253.

II.

We review de novo a district court’s legal conclusions in
denying a 28 U.S.C. § 2255 motion. See United States v. Stitt,
552 F.3d 345, 350 (4th Cir. 2008). We also review de novo
any mixed questions of law and fact addressed by the court
on whether the petitioner has established a valid Sixth
Amendment ineffective assistance claim. See Nicholson I, 475
F.3d at 248 (citing Smith v. Angelone, 111 F.3d 1126, 1131
(4th Cir. 1997) ("Whether counsel’s performance was consti-
tutionally adequate is a mixed question of law and fact which
we review de novo." (internal quotation marks omitted))).
When the court conducted an evidentiary hearing prior to rul-
ing, we review its findings of fact for clear error. See Stitt,
552 F.3d at 350.

III.

The usual standard for Sixth Amendment ineffective assis-
tance claims is spelled out in the Supreme Court’s seminal
decision in Strickland v. Washington, which requires proof
"that counsel’s performance was deficient" and "that the defi-
cient performance prejudiced the defense." 466 U.S. 668, 687
(1984). Where (as here) the ineffective assistance claim is
premised on the existence of an actual conflict of interest,
however, such claim is assessed under the standard outlined
in Cuyler v. Sullivan, 446 U.S. 335 (1980). The Sullivan stan-
dard requires a showing that (1) petitioner’s lawyer operated
under a "conflict of interest" and (2) such conflict "adversely
affected his lawyer’s performance." 446 U.S. at 348. If the
petitioner makes this showing, prejudice is presumed and
nothing more is required for relief. See id. at 349-50; see also
Rubin v. Gee, 292 F.3d 396, 402 (4th Cir. 2002) (explaining
that prejudice is presumed because, "[w]hen lawyers’ con-
 UNITED STATES v. NICHOLSON 23
flicts of interest adversely affect their performance, it calls
into question the reliability of the proceeding and represents
a breakdown in the adversarial process fundamental to our
system of justice").

We ruled in Nicholson I that Nicholson had satisfied his
burden of establishing that lawyer Babineau had a conflict of
interest when he represented Nicholson in his sentencing pro-
ceedings. See 475 F.3d at 251. As we recognized therein,
however, "an adverse effect is not presumed from the exis-
tence of [a] conflict of interest." Id. at 249. Thus, we
remanded for the district court’s consideration of the adverse
effect issue under the applicable three-part standard estab-
lished by our Court in Mickens v. Taylor, 240 F.3d 348, 361
(4th Cir. 2001) (en banc), aff’d without consideration of this
point, 535 U.S. 162 (2002). The specific issue before the dis-
trict court on remand, and before us now, is whether
Babineau’s conflict of interest in simultaneously representing
Nicholson and Butts adversely affected Babineau’s perfor-
mance in Nicholson’s sentencing proceedings.

A.

The district court concluded that Nicholson satisfied the
first prong of the three-part Mickens standard in that "[t]here
existed ‘a plausible alternative defense strategy or tactic that
[lawyer Babineau] might have pursued.’" Remand Opinion 38
(quoting Mickens, 240 F.3d at 361). And indeed, a defendant
is eligible for a downward departure below the applicable
Sentencing Guidelines range if he "committed the offense
because of serious coercion, blackmail or duress, under cir-
cumstances not amounting to a complete defense." See USSG
§ 5K2.12 (2000).14 To be "sufficiently serious to warrant
14
A complete justification defense requires a more stringent showing
than a Guidelines self-defense departure, including proof of an "imminent
and specific" threat of death or serious bodily injury. United States v.
Mooney, 497 F.3d 397, 406 (4th Cir. 2007). Prior to our decision in Nich-
olson I, Nicholson had sought a COA on his claim that Babineau was inef-
fective in failing to raise the complete justification defense at the time of
Nicholson’s conviction. We granted the COA, however, on the
sentencing-related claim only.
24 UNITED STATES v. NICHOLSON
departure," the coercion must at least involve, inter alia, "a
threat of physical injury." Id. On this record, a motion for a
self-defense departure was a plausible defense strategy that
Babineau might have pursued. Simply put, there is over-
whelming evidence — believed and even endorsed by the
Government — that Nicholson faced not only a threat of
physical injury, but also a genuine threat of death, at the time
he was found with the firearm and claimed he possessed it for
self-protection. Thus, we agree with the district court that
Nicholson made the required showing on the first Mickens
prong.

B.

Next, the district court ruled, on three separate grounds,
that Nicholson failed to satisfy the second prong of the Mick-
ens standard in that he failed to establish that a motion for a
self-defense departure "‘was objectively reasonable under the
facts of the case known to [lawyer Babineau] at the time of
[his] tactical decision.’" Remand Opinion 38 (quoting Mick-
ens, 240 F.3d at 361). We address and reject each of the three
grounds underlying the court’s ruling on the second Mickens
prong. In so doing, we emphasize that, although the second
Mickens prong requires findings on the facts known to the
lawyer at the time of his tactical decision, the ultimate ques-
tion involves a conclusion of law reached under an objective
standard: whether, considering the facts known to the lawyer,
the alternative defense strategy was "objectively reasonable."
See Mickens, 240 F.3d at 361; cf. Cloaninger v. McDevitt, 555
F.3d 324, 333 (4th Cir. 2009) (recognizing, in 42 U.S.C.
§ 1983 action, that "whether [officers’] conduct was objec-
tively reasonable . . . is a question of law, not fact").

To be sure, a court’s inquiry on the second Mickens prong
does not induce the court to contemplate whether the alterna-
tive strategy was subjectively reasonable to the lawyer, nor
does it require or permit the court to view the lawyer’s perfor-
mance under the "highly deferential" standard spelled out in
 UNITED STATES v. NICHOLSON 25
Strickland. See Strickland, 466 U.S. at 689 (instructing that
"[j]udicial scrutiny of counsel’s performance must be highly
deferential," and that "a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range of rea-
sonable professional assistance"); see also Beets v. Scott, 65
F.3d 1258, 1269 (5th Cir. 1995) (en banc) (recognizing that
Strickland contains a "more deferential standard of attorney
competence" than does Sullivan). Indeed, to apply a subjec-
tive test or accord deference to the lawyer would pay no heed
to the principle that "[j]oint representation of conflicting inter-
ests is suspect because of what it tends to prevent the attorney
from doing," Holloway v. Arkansas, 435 U.S. 475, 489-90
(1978) — the very principle animating the rule that "unconsti-
tutional multiple representation is never harmless error," Sul-
livan, 446 U.S. at 349. See also Mickens, 535 U.S. at 176
("The purpose of our Holloway and Sullivan exceptions from
the ordinary requirements of Strickland [is] to apply needed
prophylaxis in situations where Strickland itself is evidently
inadequate to assure vindication of the defendant’s Sixth
Amendment right to counsel."). With this understanding of
the applicable objective standard, we turn to our assessment
and rejection of the district court’s three grounds for ruling
that Nicholson failed to satisfy the second Mickens prong.15
15
Additionally, with regard to the second Mickens prong, the district
court considered and rejected the parties’ contentions on the significance
of the court’s contemporaneous "Statement of Reasons" for the sentence
imposed on Nicholson on August 29, 2001, which included a finding that
Nicholson "possessed [the] weapon as his life was threatened." See
Remand Opinion 33. On the one hand, the Government contended that,
because this finding "demonstrate[d] that the Court accepted and acted
upon the self defense theory," Nicholson suffered no prejudice and the
adverse impact issue was moot. Id. The court rejected the Government’s
contention, however, explaining that it could not "speculate on what action
it would have taken if additional evidence or argument had been presented
on [Nicholson’s] self defense theory," and that, in any event, there was no
authority for the proposition "that the presumption of prejudice may be
rebutted." Id. On the other hand, Nicholson contended that, because the
court’s "Statement of Reasons" reflected an understanding that Nicholson
26 UNITED STATES v. NICHOLSON
1.

"First," according to the district court, "Babineau could not
ethically present or argue facts to the Court which he knew
were false." Remand Opinion 39 (the "Ethics Ground"). The
court observed that, although "certain facts were already in
the record in support of [a] self defense sentencing theory,"
Babineau knew from Nicholson’s "comments to him and the
federal agent" that self-defense was not Nicholson’s true rea-
son for carrying the firearm at the time of his January 7, 2001
arrest. Id. Thus, "Babineau could not ethically file and pursue
a motion for downward departure based on self defense." Id.

In relying on the Ethics Ground, the district court explicitly
credited Babineau’s testimony that Nicholson had previously
told Babineau "that he was not afraid of Butts and he carried
a firearm because he dealt drugs." Remand Opinion 28.
Because of our highly deferential standard of review, we are
not in a position to disturb the court’s credibility finding. See
United States v. Locklear, 829 F.2d 1314, 1317 (4th Cir.
1987) ("Absent compelling evidence to the contrary, this
Court declines to overturn a factual determination founded on
witness demeanor and credibility."). Notably, however, the

possessed the firearm as the result of a threat on his life, it would have
been objectively reasonable for Babineau to move for a self-defense
departure. See id. at 34-35. In rejecting Nicholson’s contention, the court
observed that the "objectively reasonable" test "concerns whether the tac-
tic was objectively reasonable to the attorney, Babineau, not whether it
was later found persuasive by the Court. Clearly, Babineau was aware of
facts weakening the self defense theory of which the Court was not aware
at the time of the sentencing hearing." Id. at 35.
We similarly reject any reliance by either party on the district court’s
"Statement of Reasons." We take issue, however, with the court’s descrip-
tion of the "objectively reasonable" test as being concerned with "whether
the tactic was objectively reasonable to the attorney." Remand Opinion 35.
This description suggests that the test is actually a subjective one or that
the lawyer is owed deference — which would be at odds with the objec-
tive standard prescribed in Mickens and discussed above.
 UNITED STATES v. NICHOLSON 27
court’s discussion of the Ethics Ground also suggests a find-
ing that Nicholson, in his comments to the "federal agent"
(i.e., ATF Agent Underwood), renounced his self-defense
necessity claim. Any such finding would be clearly erroneous.
See United States v. Stitt, 552 F.3d 345, 350 (4th Cir. 2008).
As the court itself recognized earlier in the Remand Opinion,
"on the offense date, Nicholson told Agent Underwood that
he possessed the firearm for protection," and thereafter, "[o]n
April 12, 2001, Nicholson told Underwood of his extensive
history as a drug dealer which began in 1990 and extended
until his arrest on January 7, 2001." Remand Opinion 27.
There is no evidence or indication in the record that Nichol-
son told Underwood that self-defense necessity was not his
true reason for possessing the firearm, or that Underwood
ever drew such a conclusion on his own. At most, Nicholson’s
comments to Underwood, as thereafter relayed by Nicholson
to Babineau, corroborated Nicholson’s previous statements to
Babineau that he had been dealing drugs around the time of
his arrest. See id. (recounting Babineau’s testimony that,
"[a]fter Nicholson’s April 12, 2001 interview with Agent
Underwood, Nicholson told Babineau what he told the agent
at that interview" — specifically "that when he returned to
Tidewater he resumed selling heroin in Portsmouth"). Only
Babineau connected Nicholson’s drug dealing to his firearm
possession.16

Accepting (as we must) the district court’s finding that
Babineau was credible, however, the court yet erred on the
Ethics Ground in assessing and deciding a question of law —
a conclusion that we review de novo. See Stitt, 552 F.3d at
350. The question resolved by the court was whether
16
At the time of Nicholson’s sentencing, Babineau’s knowledge of the
contents of the April 12, 2001 Agent Underwood interview was limited to
the information relayed by Nicholson to Babineau. Babineau did not
review Underwood’s notes of the interview until years later, and those
notes reflect only that Nicholson admitted dealing drugs around the time
of his January 7, 2001 arrest, without connecting the firearm possession
to the drug dealing.
28 UNITED STATES v. NICHOLSON
Babineau, having been told by Nicholson that he did not fear
Butts, was ethically prohibited from requesting a self-defense
departure for Nicholson at sentencing. The court turned to the
Virginia Rules of Professional Conduct and, more specifi-
cally, Rule 3.3 thereof. In relevant part, Rule 3.3, entitled
"Candor Toward The Tribunal," prohibits a lawyer from
knowingly "mak[ing] a false statement of fact or law to a tri-
bunal"; "fail[ing] to disclose a fact to a tribunal when disclo-
sure is necessary to avoid assisting a criminal or fraudulent
act by the client"; or "offer[ing] evidence that the lawyer
knows to be false." Rule 3.3 also authorizes a lawyer to "re-
fuse to offer evidence that the lawyer reasonably believes is
false."17

Notwithstanding these provisions of the Virginia Rules of
Professional Conduct, it is manifest that Babineau could have
requested a self-defense departure without compromising his
ethical duties. This is so because a motion for a self-defense
departure would not have required Babineau to make a false
statement of fact or law to the sentencing court, to offer evi-
dence that he knew or reasonably believed to be false, or to
otherwise contravene the applicable ethics rules. Rather,
Babineau could have made a self-defense departure motion on
the strength of the truthful and undisputed evidence that Butts
had posed a genuine threat to Nicholson’s life, that Nicholson
had claimed to the authorities that he possessed a firearm on
January 7, 2001, for protection from Butts, and that the
authorities believed him.

As Babineau conceded, he knew that Nicholson "need not
testify at sentencing," J.A. 690, and that there was other evi-
17
In addition to Rule 3.3, the court also invoked Rule 4.1, which per-
tains to transactions with persons other than clients. Rule 4.1, entitled
"Truthfulness In Statements To Others," prohibits a lawyer, "[i]n the
course of representing a client," from knowingly "[m]ak[ing] a false state-
ment of fact or law," or "[f]ail[ing] to disclose a fact when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client."
 UNITED STATES v. NICHOLSON 29
dence — indeed, undisputed Government evidence — estab-
lishing Butts’s murder of Nicholson’s step-father, attempted
murder of Nicholson’s brother, and inclusion of Nicholson on
a "hit list." As early as Nicholson’s June 6, 2001 plea collo-
quy, the prosecution itself had informed the district court that
Nicholson "stated that he had the firearm for his personal pro-
tection" and that it was "certainly reasonable to believe that
someone might try to injure him or shoot him." J.A. 30.
Thereafter, the prosecution interposed no objection to the
Nicholson PSR’s statement that Nicholson had advised the
authorities "that he possessed the firearm for his own personal
protection." Id. at 858. During Nicholson’s August 29, 2001
sentencing hearing, the United States Attorney again informed
the court that "when [Nicholson] was arrested, there were
people out to kill him." Id. at 50. Quite tellingly, the Govern-
ment has never abandoned its position that Nicholson was in
real danger when he possessed the handgun — even acknowl-
edging at oral argument in this appeal that, regardless of what
Nicholson may have told Babineau, it would have been "ab-
surd" for Nicholson not to fear Butts.

In these circumstances, the Rules of Professional Conduct
did not bar Babineau from moving for a downward departure
— or, more precisely, from arguing for the statutory mini-
mum — on the basis of self-defense necessity. To the con-
trary, by making such a motion, Babineau simply would have
been fulfilling his professional obligations to Nicholson. As
Justice Powell once cogently observed, "lawyers, by training
and disposition, are advocates and bound by professional duty
to present all available evidence and arguments in support of
their clients’ positions and to contest with vigor all adverse
evidence and views." Gagnon v. Scarpelli, 411 U.S. 778, 787
(1973); see also United States v. Arthur Young & Co., 465
U.S. 805, 817 (1984) (recognizing that "the private attorney’s
role" is to serve "as the client’s confidential adviser and advo-
cate, a loyal representative whose duty it is to present the cli-
ent’s case in the most favorable possible light"). Accordingly,
we reject the premise of the Ethics Ground: that a self-defense
30 UNITED STATES v. NICHOLSON
departure motion was not objectively reasonable under the
facts known to Babineau at the time of sentencing because the
applicable ethics rules barred him from making such a
motion.

2.

Next, on the second Mickens prong, the district court ruled
that a self-defense departure motion was not objectively rea-
sonable because, based on the facts known to Babineau,
asserting the self-defense theory could have damaged Nichol-
son’s credibility and thereby jeopardized his chances for
future Rule 35(b) relief. See Remand Opinion 39 (the "Rule
35(b) Ground"). The court explained that "assisting the Gov-
ernment in the hope of receiving a reduction in sentence under
Rule 35(b) was [Nicholson’s] primary objective throughout
the litigation," and that Nicholson’s credibility would have
been damaged if he had "asserted through a motion for down-
ward departure . . . that he only possessed the firearm in self
defense, while also telling federal agents that he was selling
drugs during the time he possessed the gun." Id. "This damage
to [Nicholson’s] credibility," according to the court, "could
have reduced his prospect of having his sentence reduced
under Rule 35(b)." Id.

The district court’s Rule 35(b) Ground — involving a
mixed question of law and fact that we review de novo, see
Nicholson I, 475 F.3d at 248 (citing Smith v. Angelone, 111
F.3d 1126, 1131 (4th Cir. 1997)) — cannot be squared with
the record. As an initial matter, the record reflects that neither
ATF Agent Underwood (who twice interviewed Nicholson
prior to his guilty plea) nor ATF Agent Logwood (who inter-
viewed him postsentencing) perceived any inconsistency
between Nicholson’s self-defense claim and his admission
that he had been dealing drugs around the time of his January
7, 2001 arrest. Rather, Agents Underwood and Logwood indi-
cated that Nicholson provided truthful, albeit not useful, infor-
mation. Moreover, even assuming that the prosecution could
 UNITED STATES v. NICHOLSON 31
have used Nicholson’s admission of drug dealing to counter
his self-defense claim, nothing in the record suggests that the
prosecution would have taken that tack. Indeed, as Babineau
himself has acknowledged, there is no evidence in this record
— other than Babineau’s testimony about what Nicholson
told him during privileged attorney-client communications —
to support the proposition that Nicholson possessed the fire-
arm because he was a drug dealer rather than for protection
from Butts. See J.A. 305 (Babineau’s deposition testimony
that his only evidence contradicting Nicholson’s self-defense
claim was "what my client told me").

The balance of the evidence reflects that, at the time of
Nicholson’s January 7, 2001 arrest, he was endangered by
Butts. Nicholson was found in possession of a handgun that
he had accepted from a friend in September 2000, on the day
of his step-father’s murder. Because the handgun was then
inoperable, Nicholson took it to a local gun shop for repairs
and then left for the Washington, D.C. area. On January 6,
2001, after returning to Portsmouth for Christmas and being
treated at a hospital for his sickle cell anemia, Nicholson
retrieved the now-repaired handgun and purchased ammuni-
tion. The next day, the authorities found Nicholson in posses-
sion of the handgun, but not in possession of any drugs, drug
paraphernalia, unusual amounts of cash, or other indicia of
present drug dealing. Furthermore, the authorities discovered
no evidence that Nicholson had possessed any other firearm
during the period between his release from state prison in
1999 and his federal arrest in April 2001, although he admit-
tedly sold drugs during that time frame. And, Nicholson’s
extensive criminal record, which included convictions for
both firearm and drug offenses, contained no history of Nich-
olson having simultaneously possessed firearms and drugs.

In summary, the evidence — other than Babineau’s testi-
mony about statements made to him by Nicholson — is
entirely consistent with Nicholson’s self-defense claim and
inconsistent with Babineau’s belief that Nicholson "carried a
32 UNITED STATES v. NICHOLSON
gun because of the [drug] trade," J.A. 247, and "was a very
violent person who had always carried a firearm," id. at 660.
If, for example, Nicholson always carried a firearm in connec-
tion with his drug dealing, he would have possessed a firearm
on the day of his step-father’s murder and would have had no
reason to accept an inoperable handgun from a friend.

Once again, we must credit Babineau’s testimony and thus
accept that Nicholson told Babineau his true reason for pos-
sessing the firearm was drug dealing, not self-defense. Never-
theless, as Babineau was well aware at sentencing, the
balance of the evidence supported the self-defense (but not
the drug dealing) theory. As such, it was not objectively rea-
sonable for Babineau to refrain from moving for a self-
defense downward departure for fear that Nicholson’s credi-
bility would somehow suffer and he would thereby be denied
Rule 35(b) relief. Though we certainly do not condone Nich-
olson’s ugly criminal record or his ongoing drug activities,
there is a larger principle at stake here: Nicholson’s Sixth
Amendment right to the effective assistance of counsel.
Hence, we are constrained to conclude that the Rule 35(b)
Ground lacks merit.

3.

Lastly, on the second Mickens prong, the district court also
ruled that a motion for a self-defense departure was not objec-
tively reasonable because Nicholson’s self-defense claim
"could have been rebutted by [his] admissions of drug dealing
to [ATF Agent Underwood and, thus,] could have proven to
be a serious tactical error in arguing the period of imprison-
ment [Nicholson] should receive." Remand Opinion 40 (the
"Invitation for Rebuttal Ground"). Put simply, the Invitation
for Rebuttal Ground fails for the same reasons that the Rule
35(b) Ground is without merit. Thus, we reject each of the
district court’s three grounds for ruling that Nicholson failed
to satisfy the second Mickens prong. Furthermore, for the rea-
sons discussed above, we conclude that Nicholson has met his
 UNITED STATES v. NICHOLSON 33
burden of showing that a motion for a self-defense departure
was objectively reasonable under the facts of the case known
to Babineau at sentencing.

C.

Turning to the third prong of the Mickens standard —
whether Nicholson established that Babineau’s failure to
move for a self-defense departure "‘was linked to the . . . con-
flict,’" Remand Opinion 38 (quoting Mickens, 240 F.3d at
361) — the district court accepted Babineau’s testimony that
"his reason for not filing a [self-defense] departure motion . . .
was based upon the abovementioned tactical and ethical con-
siderations, and not based upon his representation of Butts."
Id. at 40-41. The court observed that,

[w]hile Babineau’s decision to represent Butts and
Nicholson indicates a lapse in judgment, it does not
diminish Babineau’s credibility before the Court.
Babineau testified in person before the Court, and
the Court had the opportunity to observe his manner
and consider his testimony in light of the other evi-
dence and testimony in the case. The Court found
Babineau believable as a witness, despite the
attempted attacks on his credibility by [Nicholson].

Id. at 41. The court thus ruled that Nicholson "failed to meet
his burden of proof on the linkage issue by a preponderance
of the evidence." Id.

As previously noted, we are bound to accept the district
court’s credibility finding.18 Nevertheless, the court erred by
18
There are ample reasons, however, to infer that Babineau was less
than forthcoming in these proceedings, including the following: other than
Babineau’s testimony, the record fully supports Nicholson’s self-defense
claim; a plethora of evidence — especially Nicholson’s letters to
Babineau, see supra note 10 — contradicts Babineau’s testimony that he
34 UNITED STATES v. NICHOLSON
rejecting Nicholson’s proof on the link issue and instead rely-
ing on Babineau’s testimony about his subjective motives to
withhold relief from Nicholson on his actual conflict of inter-
est claim.

Significantly, in writing for the en banc majority in Mick-
ens, Judge Widener adopted for our Court the three-part
adverse effect standard utilized by the Eleventh Circuit in
Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999)
(en banc). With respect to the third prong — that counsel’s
failure to pursue the objectively reasonable defense strategy
was linked to the conflict — the Freund court explained that
the petitioner is entitled to prove such a link in either of two
ways: (1) by "establish[ing] that the alternative defense was
inherently in conflict with . . . the attorney’s other loyalties or
interests" (the "first aspect of the Freund test"), or (2) by oth-
erwise showing that the alternative defense was "not
undertaken due to" those other loyalties or interests (the "sec-
ond aspect of the Freund test"). See 165 F.3d at 860 (internal
quotation marks omitted). The Freund court’s test on the link
issue is a longstanding and widely utilized standard for deter-
mining whether a conflict of interest adversely affected a law-
yer’s performance. See, e.g., United States v. Levy, 25 F.3d
146, 157 (2d Cir. 1994) (applying same test); United States v.
Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (same); United
States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985) (same); see
also United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.
1990) ("[D]efense counsel’s performance was adversely

was told by Nicholson that drug dealing was his true and only reason for
carrying the firearm; Babineau produced no contemporaneous notes of his
conversations with Nicholson, having lost the majority of his files on both
Nicholson and Butts; Babineau turned over what records he did possess
on Nicholson and Butts to the Government without Nicholson’s (or,
worse, Butts’s) authorization and despite Nicholson’s request for his own
records; and Babineau yet will not acknowledge — and, in fact, continues
to deny — that his simultaneous representation of Nicholson and Butts
created a conflict of interest.
 UNITED STATES v. NICHOLSON 35
affected by an actual conflict of interest if a specific and
seemingly valid or genuine alternative strategy or tactic was
available to defense counsel, but it was inherently in conflict
with his duties to others or to his own personal interests.").19

Under the first aspect of the Freund test, if the petitioner
shows — as Nicholson clearly has here — "that the alterna-
tive defense was inherently in conflict with . . . the attorney’s
other loyalties or interests," see 165 F.3d at 860 (internal quo-
tation marks omitted), he thereby satisfies his burden of prov-
ing the requisite link and there is no need to consider the
second aspect of the Freund test. Cf. United States v. Wil-
liams, 372 F.3d 96, 106-07 (2d Cir. 2004) (concluding that,
because it was "clear that Williams’ defense was ‘inherently
in conflict with [his lawyer’s] other loyalties or interests,’"
Williams had sufficiently "demonstrated the requisite lapse in
his representation"); Lopez v. Scully, 58 F.3d 38, 42-43 (2d
Cir. 1995) (ruling that the "inherently in conflict" standard
was satisfied where "the judge had the discretion to impose a
lower sentence and arguable grounds for leniency existed,"
but the lawyer "had the incentive to undermine [his client’s]
credibility . . . in order to reduce the risk of recriminations for
any [of the lawyer’s own] improper conduct"). In simple
terms, an alternative defense and the lawyer’s other loyalties
or interests are "inherently in conflict" if they are "inconsis-
19
Notably, the First, Second, Third, and Tenth Circuits utilize a two-part
adverse effect test, in contrast to the three-part standard employed by the
Eleventh Circuit in Freund and adopted by our Court in Mickens. The
two-part test omits the second Mickens prong, which requires the peti-
tioner to demonstrate that the alternative defense was "objectively reason-
able" under the facts known to the lawyer at the relevant time. See
Eisemann v. Herbert, 401 F.3d 102, 107-08 (2d Cir. 2005) (deeming the
Fourth and Eleventh Circuits’ standard, because of its additional objective
reasonableness requirement, to be "slightly more demanding" than the
Second Circuit’s approach). Nevertheless, the two-part test encompasses
the first Mickens prong (the "plausible alternative defense" requirement)
and, significantly, the third Mickens prong (the "link" requirement). As
such, it is helpful to look to decisions of the First, Second, Third, and
Tenth Circuits for guidance on the link issue.
36 UNITED STATES v. NICHOLSON
tent" with each other. See United States v. Malpiedi, 62 F.3d
465, 470 (2d Cir. 1995) (recognizing that "the applicable stan-
dard requires only the demonstration of a conflict inconsistent
with a plausible trial strategy or tactic"). In such a situation,
it is unnecessary — and even inappropriate — to accept and
consider evidence of any benign motives for the lawyer’s tac-
tics, including the lawyer’s testimony about his subjective
state of mind. See id. (observing that "after-the-fact testimony
by [the conflicted] lawyer . . . is not helpful," as "[e]ven the
most candid persons may be able to convince themselves that
they actually would not have used that strategy or tactic any-
way").20
20
We do not suggest that courts may never consider a conflicted law-
yer’s explanation for his actions in order to determine whether the law-
yer’s failure to pursue an alternative defense strategy was linked to the
conflict of interest. Rather, we conclude only that in cases such as this one
— where the strategy at issue was plausible, objectively reasonable, and
inherently in conflict with the lawyer’s other loyalties or interests — con-
sideration of the lawyer’s explanation is not helpful. In different circum-
stances, however, it may be appropriate, in assessing the link issue, to
consider the lawyer’s testimony on his subjective motives. For example,
in Stephens v. Branker, we credited the testimony of a (presumably) con-
flicted lawyer "that his trial strategy . . . was based solely on a tactical
decision" and was not linked to any conflict of interest. See 570 F.3d 198,
212 (4th Cir. 2009). Unlike lawyer Babineau, the lawyer in Stephens had
not failed to pursue an objectively reasonable defense strategy that was
inherently in conflict with the lawyer’s loyalties to another client. Rather,
the Stephens lawyer had pursued a theory arguably in conflict with his
other loyalties — "as far as the evidence would take it" — even though
such strategy was not objectively reasonable. See id. at 211-13; see also
Freund, 165 F.3d at 868-69 (crediting lawyer’s testimony on link issue in
circumstances similar to those in Stephens). Stephens exemplifies one type
of case where the lawyer’s testimony may properly be considered.
Another such type of case may be one in which the petitioner cannot
establish, under the first aspect of the Freund test, "that the alternative
defense was inherently in conflict with . . . the attorney’s other loyalties
or interests," but otherwise seeks to show, under the second aspect of the
Freund test, that the alternative defense was "not undertaken due to" those
other loyalties or interests. See 165 F.3d at 860 (internal quotation marks
omitted).
 UNITED STATES v. NICHOLSON 37
Although, prior to today, we had not explicitly adopted the
Freund court’s test on the link issue under the third Mickens
prong, its application is entirely consistent with relevant
Supreme Court and Fourth Circuit precedent. The Supreme
Court, for example, has determined that a conflicted lawyer’s
omissions — "fail[ure] to cross-examine a prosecution wit-
ness" and "fail[ure] to resist the presentation of arguably inad-
missible evidence" — "resulted from counsel’s desire to
diminish the jury’s perception of a codefendant’s guilt." Sulli-
van, 446 U.S. at 349 (discussing Court’s prior decision in
Glasser v. United States, 315 U.S. 60, 72-75 (1942)). The
Court so ruled because "the evidence of counsel’s ‘struggle to
serve two masters [could not] seriously be doubted.’" Id.
(quoting Glasser, 315 U.S. at 75) (alteration in original).

As for this Court’s own precedent, our decision in Rubin v.
Gee

involved two attorneys who in the aftermath of a
crime schooled their client [Rubin] in the tactics of
evasion in order to guarantee their own fee. Then to
avoid criminal indictment and keep their conduct
from coming to light, the attorneys took cover as part
of the defense team. While the prosecution harped at
trial on Rubin’s actions immediately following the
crime, the attorneys could not be called as fact wit-
nesses and their role in directing Rubin’s actions was
never explained.

292 F.3d 396, 398 (4th Cir. 2002). After concluding that hav-
ing the conflicted attorneys testify "was a plausible alternative
defense strategy which was reasonable under the facts of the
case," the panel majority in Rubin had no trouble deciding
that "the failure to pursue this strategy was linked to [the
attorneys’] conflict of interest." Id. at 405. Writing for the
majority, Judge Wilkinson characterized the conflict’s
adverse effect as "self-evident," id. at 398, and explained that
the attorneys "had a powerful conflicting interest in shielding
38 UNITED STATES v. NICHOLSON
themselves from testifying to conceal their role in the events
following the homicide," id. at 403. Significantly, the major-
ity so concluded notwithstanding the dissenting view that —
based on the testimony of non-conflicted members of the
defense team (which the state habeas court had deemed credi-
ble) — there was no link between the other attorneys’ conflict
and their failure to testify. See id. at 411 (Motz, J., dissenting)
("Given this state-court finding, Rubin has not established and
cannot establish the necessary ‘link[ ]’ between [the attor-
neys’ conflict] and the decision she challenges." (first alter-
ation in original)).

In Mickens, the petitioner asserted that his lawyer labored
under an actual conflict of interest in representing Mickens on
a murder charge, because the lawyer had previously repre-
sented Mickens’s murder victim. See 240 F.3d at 351. We
affirmed the district court’s ruling that "any viable defense
strategies" — including investigation into leads as to possible
alternative perpetrators and fuller cross-examination of a key
prosecution witness — "were not linked to [the] attorney’s
conflict of interest." Id. at 362. In other words, there was no
discernible inconsistency between those particular strategies
and the lawyer’s duty of loyalty to Mickens’s victim. As such,
Mickens could not prove "that the alternative defense was
inherently in conflict with . . . the attorney’s other loyalties or
interests." See Freund, 165 F.3d at 860 (internal quotation
marks omitted).21 The same would be true of a hypothetical
21
Additionally, Mickens could not otherwise show, under the second
aspect of the Freund test, that any viable defense strategies were "not
undertaken due to the lawyer’s other loyalties or interests." See Freund,
165 F.3d at 860 (internal quotation marks omitted). We did not rule in
Mickens, however, that there was no link between other strategies not pur-
sued and the conflict of interest where such strategies were, on their face,
inherently in conflict with the lawyer’s loyalty to the victim. Rather, we
concluded that those strategies were not objectively reasonable, without
reaching the link issue. See Mickens, 240 F.3d at 361-62. Furthermore, in
several decisions prior to Mickens, we determined that actual conflicts of
interest were proven where the defense strategies in question were inher-
 UNITED STATES v. NICHOLSON 39
claim by Nicholson that Babineau’s conflict caused him to
refrain from seeking a downward departure on the ground of
Nicholson’s serious health condition. Although arguably a
plausible and objectively reasonable strategy (being one that
Babineau actually did pursue), such a downward departure
motion was not inherently in conflict with Babineau’s repre-
sentation of Butts.

A self-defense departure motion, by contrast, was inher-
ently in conflict with Babineau’s loyalties to Butts — a point
we emphasized in Nicholson I in the context of ruling that
Babineau was laboring under a conflict of interest. See United
States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991) (recogniz-
ing that Sullivan’s "two requirements" — a "conflict of inter-
est" and an "adverse effect on counsel’s performance" — "are
often intertwined, making the factual analyses of them over-
lap" (emphasis omitted)). Of course, our conflict-of-interest
inquiry in Nicholson I focused on whether Nicholson’s and
Butts’s particularized "‘interests diverged with respect to a
material factual or legal issue or to a course of action.’" See
Nicholson I, 475 F.3d at 249 (quoting Gilbert v. Moore, 134
F.3d 642, 652 (4th Cir. 1998) (en banc)). The course of action
at issue was moving for a self-defense departure during Nich-
olson’s sentencing proceedings. If he made the motion,

ently in conflict with the lawyers’ other loyalties or interests. See United
States v. Swartz, 975 F.2d 1042, 1046 (4th Cir. 1992) (observing that,
while representing codefendants, the lawyer pursued a strategy on behalf
of one client that was "inherently damaging" to the second client’s posi-
tion); United States v. Tatum, 943 F.2d 370, 380 (4th Cir. 1991) (recogniz-
ing that the "known facts [led] inevitably to the conclusion that [the
lawyer] had unacceptable conflicts of interest," where, inter alia, "obvious
avenues for a full defense were not pursued, avenues which might have
assisted [the defendant] but would have clearly had adverse effects on [the
lawyer] and his law firm"); Hoffman v. Leeke, 903 F.2d 280, 286 (4th Cir.
1990) (concluding, notwithstanding the lawyer’s testimony to the contrary,
that "a conflict was patent" and its adverse effects clear where the lawyer
advised one client to testify against another client as part of a plea agree-
ment).
40 UNITED STATES v. NICHOLSON
Babineau would act contrary to (and disloyal to) the interests
of client Butts by portraying him as a murderer, thus poten-
tially jeopardizing Butts’s position on appeal and in any
future prosecutions. By failing to make the motion, Babineau
would act contrary to (and disloyal to) the interests of client
Nicholson. Accordingly, as we explained in Nicholson I,
"Nicholson’s interests, on the one hand, and Butts’s interests,
on the other, were in total opposition to each other during
Babineau’s simultaneous representation of them." Id. at 249-
50. This simultaneous representation placed Babineau "in the
untenable position of having to place the interests of one cli-
ent (either Butts or Nicholson) above another (either Nichol-
son or Butts)." Id. at 251. In these circumstances, a conflict
of interest existed regardless of whether Babineau ultimately
chose to pursue a self-defense departure motion on behalf of
Nicholson.

The question now before us is whether Babineau’s conflict
of interest had an adverse effect on Nicholson. If Babineau
had zealously advocated for a self-defense departure, it is
unlikely that Nicholson could demonstrate that he was harmed
by the conflict (though Butts might have a viable Sixth
Amendment claim). The fact is, however, that Babineau did
not move for a self-defense departure on Nicholson’s behalf.
Viewed in this context, it is "self-evident" that Babineau was
possessed of a conflict of interest that was inescapably —
and, indeed, inherently — linked to the alternative defense
strategy not pursued: moving for a self-defense departure. Cf.
Rubin, 292 F.3d at 398. In other words, the competing inter-
ests of Nicholson and Butts were plainly stuck to Babineau’s
tactical considerations with respect to the self-defense depar-
ture motion — that is, Babineau’s conflict of interest was
inextricably woven into the alternative defense strategy.
Indeed, it was an essential characteristic and attribute thereof.22
22
As The New Oxford American Dictionary (2d ed. 2005) explains, "in-
herent" is derived from the Latin "inhaerent– ‘sticking to,’ from the verb
inhaerere, from in– ‘in, toward’ + haerere ‘to stick.’" It is further defined
therein as "existing in something as a permanent, essential, or characteris-
tic attribute."
 UNITED STATES v. NICHOLSON 41
Thus, Babineau’s conflict of interest was inherently linked to
the tactic of moving for a self-defense departure motion on
Nicholson’s behalf — unlike other alternative defense strate-
gies that could be conjured up, such as (from the example dis-
cussed above) a health-related departure motion, which would
not have required Babineau to act contrary or disloyal to the
"inconsistent" interests of his other client Butts. See Malpiedi,
62 F.3d at 470.

In summary, because a self-defense departure motion was
inherently in conflict with Butts’s interests, Nicholson has
proven — by much more than a preponderance of the evi-
dence — the necessary link between Babineau’s conflict of
interest and his failure to move for a self-defense departure,
thus satisfying the third and final Mickens prong.23 Having
also met his burden of proof on the first and second Mickens
prongs, Nicholson is entitled to § 2255 relief — specifically,
remand for resentencing.

IV.

Having concluded that Nicholson is entitled to § 2255
relief, we turn to the Government’s suggestion on appeal that
Nicholson’s habeas corpus petition has essentially been ren-
dered moot because he has no chance of successfully pursuing
a self-defense departure on resentencing. The Government
23
Importantly, proof of an inherent conflict between the alternative
defense strategy in question and the lawyer’s other loyalties or interests
satisfies only the third Mickens prong. It does not relieve the petitioner of
his burden of proof on the first and second Mickens prongs. See Hunter
v. Sec’y, Dep’t of Corr., 395 F.3d 1196, 1201-02 (11th Cir. 2005) (recog-
nizing that Freund’s "inherently in conflict" test does not eliminate
adverse effect requirement). The district court’s analysis on the third
Mickens prong, however, would undermine Mickens’s three-part standard.
In finding no link between Babineau’s conflict of interest and his failure
to move for a self-defense departure, the district court relied on
Babineau’s credible testimony that such a motion was not a subjectively
reasonable tactic. As such, the court rendered pointless any assessment of
the objective reasonableness issue under the second Mickens prong.
42 UNITED STATES v. NICHOLSON
maintains that, because lawyer Babineau has revealed to the
sentencing court confidential attorney-client communications
made to him by Nicholson (and the court has credited
Babineau’s testimony), "a new sentencing could not have any
effect, except possibly to eliminate the benefit of having the
district court believe based on an incomplete record that there
was more to a self-defense argument than there really is." Br.
of Appellee 47. We are surprised by and disagree with the
Government’s position and its underlying premise: that resen-
tencing will be a worthless exercise because Nicholson’s con-
fidential communications to Babineau can be used against
Nicholson on remand.

First of all, on remand for resentencing, Nicholson should
be entitled to a protective order prohibiting the Government
from using privileged information revealed by Babineau in lit-
igating Nicholson’s actual conflict of interest claim. See Bit-
taker v. Woodford, 331 F.3d 715, 717 (9th Cir. 2003) (en
banc) (rejecting contention that state prisoner "completely
waived" his attorney-client privilege by asserting ineffective
assistance claims in federal habeas proceedings, and affirming
district court’s protective order precluding use of privileged
materials for any purpose other than litigating federal habeas
petition). As Judge Kozinski cogently explained for the en
banc Bittaker court,

[a] narrow waiver rule is . . . consistent with the
interests of the habeas petitioner in obtaining a fair
adjudication of his petition and securing a retrial
untainted by constitutional errors. . . . If a prisoner
is successful in persuading a federal court to grant
the writ, the court should aim to restore him to the
position he would have occupied, had the first trial
been constitutionally error-free. Giving the prosecu-
tion the advantage of obtaining the defense casefile
— and possibly even forcing the first lawyer to tes-
tify against the client during the second trial —
 UNITED STATES v. NICHOLSON 43
would assuredly not put the parties back at the same
starting gate.

Id. at 722-23. "What’s more," the Bittaker court recognized,
"requiring the petitioner to enter . . . a broad waiver would
force him to [a] painful choice" — a choice between "assert-
ing his ineffective assistance claim and risking a trial where
the prosecution can use against him every statement he made
to his first lawyer," or "retaining the privilege but giving up
his ineffective assistance claim." Id. at 723. With these princi-
ples in mind, the Bittaker court not only characterized the dis-
trict court’s entry of a protective order as being "entirely
justified," but also observed that the court "would have
abused its discretion" had it not entered such an order. Id. at
728. We agree with the Ninth Circuit’s approach in Bittaker,
which would entitle Nicholson to a protective order on
remand.

Additionally, we find ourselves constrained to direct the
assignment of a new judge for Nicholson’s resentencing pro-
ceedings. Although "this is not a case requiring remand to a
different judge because of bias," it is one of those "unusual
circumstances where both for the judge’s sake and the appear-
ance of justice an assignment to a different judge is salutary
and in the public interest, especially as it minimizes even a
suspicion of partiality." United States v. Guglielmi, 929 F.2d
1001, 1007 (4th Cir. 1991) (internal quotation marks omitted).
On this issue, there are three points for consideration: "(1)
whether the original judge would reasonably be expected
upon remand to have substantial difficulty in putting out of
his or her mind previously expressed views or findings deter-
mined to be erroneous or based on evidence that must be
rejected"; "(2) whether reassignment is advisable to preserve
the appearance of justice"; and "(3) whether reassignment
would entail waste and duplication out of proportion to any
gain in preserving the appearance of fairness." Id. (internal
quotation marks omitted); see also United States v. Lentz, 383
F.3d 191, 222 (4th Cir. 2004) (applying same standard).
44 UNITED STATES v. NICHOLSON
Here, as the Government has underscored, the original
judge has expressed the view that lawyer Babineau credibly
testified about being advised by Nicholson that he possessed
the firearm because of his drug dealing, and not for self-
protection. Under Bittaker, however, Nicholson’s privileged
communications with Babineau could not be admitted in the
remand proceedings. Because the original judge "cannot rea-
sonably be expected to erase the earlier impressions from his
mind" — or, indeed, "may tend to lean over backwards or
overreact in an effort to be fair and impartial" — we are con-
strained to remand for resentencing by a different judge. See
Guglielmi, 929 F.2d at 1008 (internal quotation marks and
alterations omitted). In so ruling, we imply no personal criti-
cism of the original judge or his handling of Nicholson’s
§ 2255 proceedings. Rather, we reserve our criticism for
Babineau and his failure to recognize and disclose the conflict
of interest that prevented Nicholson from enjoying his Sixth
Amendment right to effective representation. As such, we
equate this matter with those in which the Government has
breached a plea agreement and a remand for resentencing by
a new judge is essential to preserving the appearance of jus-
tice. See, e.g., Santobello v. New York, 404 U.S. 257, 263
(1971) (observing that such remedy "is in no sense to question
the fairness of the sentencing judge; the fault here rests on the
prosecutor, not on the sentencing judge"). Furthermore, "[w]e
do not believe that any waste or duplication would be out of
proportion to the appearance of fairness a reassignment will
preserve." See Lentz, 383 F.3d at 222.

V.

Pursuant to the foregoing, we reverse the judgment of the
district court and remand for resentencing.

REVERSED AND REMANDED
 UNITED STATES v. NICHOLSON 45
KEELEY, District Judge, concurring-in-part and dissenting-
in-part:

I concur in Parts I, II and III of the majority’s opinion hold-
ing that Nicholson has met his burden of establishing that his
attorney’s actual conflict of interest adversely affected his
representation of Nicholson. I also concur in the decision to
grant Nicholson relief under 28 U.S.C. § 2255. I respectfully
dissent, however, from the direction to assign a new judge to
resentence Nicholson.

At Nicholson’s initial sentencing, the district court adopted
the pre-sentence report ("PSR"), which recommended a base
offense level of 30 and a criminal history category of VI.
These factors placed Nicholson in a guideline range of 168-
210 months, with a mandatory minimum sentence of 180
months.1 Ultimately, the district court sentenced Nicholson to
189 months. Therefore, today’s decision leaves the sentencing
judge with a narrow, nine month window of discretion in
which to resentence Nicholson.2 For the following reasons, I
believe that this Court may entrust the responsibility of resen-
tencing Nicholson to the trial judge.

First, the district court has proven willing to implement this
Court’s decisions regarding Babineau’s conflict of interest
and its impact upon Nicholson’s eligibility for relief under
§ 2255. The district court ably reheard Nicholson I on remand,
finding, despite its prior ruling and as directed by this Court,
that Babineau suffered an actual conflict of interest. After
1
"Based on his criminal history, Nicholson was sentenced as an armed
career criminal under 18 U.S.C. § 924(e)." U.S. v. Nicholson, 475 F.3d
241, n. 6 (4th Cir. 2007) ("Nicholson I"). He therefore faced a mandatory
minimum sentence of 180 months and a maximum sentence of life. Id.
2
Nicholson pleaded guilty to possession of a firearm and ammunition by
a felon, in violation of §§ 922(g)(1), 924(a)(2) and 924(e). Nicholson, 475
F.3d at 246. Because Nicholson possessed a firearm in connection with the
offense, he is ineligible for the "safety valve" limitation of applicability of
statutory minimum sentences. U.S.S.G. § 5C1.2 (Nov. 2009).
46 UNITED STATES v. NICHOLSON
finding that Babineau suffered an actual conflict, it then
applied the relevant authority, Mickens v. Taylor, 240 F.3d
348 (4th Cir. 2001) (en banc), as commonly understood at that
time. In doing so, the district court found that Nicholson had
satisfied the first part of the Mickens test by concluding that
"[t]here existed ‘a plausible alternative defense strategy or
tactic that [Babineau] might have pursued.’" Remand Opinion
at 38 (quoting Mickens, 240 F.3d at 361). Although the dis-
trict court erroneously found that Nicholson could not estab-
lish either the second or third parts of the Mickens test, it did
so without the benefit of today’s clarifications of that test.
Based on the district court’s willingness to accept and apply
prior decisions in this case, it should be given the chance to
apply today’s decision on remand, just as it did in Nicholson
I.

Second, notwithstanding the district court’s prior decisions
in this case, it is nonetheless capable of resentencing Nichol-
son on the evidence of the threats of Butts to Nicholson’s life,
and reaching a reasonable sentence based not only on a
motion for departure for self-defense, but also the factors
under 18 U.S.C. § 3553(a). To be sure, as the majority recog-
nizes, there is no dispute that the district judge is willing to
treat Nicholson fairly. Ante at 43. Therefore, this case is
vastly different from the case relied on by the majority in sup-
port of its decision to remove the district judge on remand.
There the district judge "repeatedly adhered to an erroneous
view after the error [was] called to his attention," thus neces-
sitating reassignment to another judge. United States v. Gug-
lielmi, 929 F.2d 1001, 1004, 1007 (4th Cir. 1991). In addition,
the district judge had expressed on the record his inability to
forget the egregious nature of the evidence presented at trial.
Id. at 1006. Here, in contrast, the district court has shown
itself not only capable of applying this Court’s rulings but
also willing to revise its own assessment of the facts relevant
to sentencing.

For the foregoing reasons, I would remand this case to the
trial judge.