NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 21, 2010∗
Decided October 29, 2010
Before
FRANK H. EASTERBROOK , Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 10-2472 Appeal from the United
States District Court for the
ROBERT A. BURKE , Northern District of Illinois,
Petitioner-Appellant, Eastern Division.
v. No. 09 C 2107
Rebecca R. Pallmeyer, Judge.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Order
Robert Burke contends in this collateral proceeding under 28 U.S.C. §2255 that he
received the ineffective assistance of counsel on direct appeal when his lawyer, who
presented nine issues, omitted a tenth: Whether the district judge erred in disqualifying
Thomas Durkin as trial counsel, because of the likelihood that Durkin would be called as
a witness. Burke contends that his appellate lawyer (Durkin himself) should have
argued that the district judge erred in declining to accept Burke’s offer to waive the
conflict of interest.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 10-2472 Page 2
The district court concluded that, even if Durkin should have raised this issue on
appeal, Burke did not suffer prejudice because it was a losing contention. (The same
rationale shows that Durkin met the “performance” part of the constitutional test, for
omitting an issue on appeal is “ineffective assistance” only if the omitted issue is
materially stronger than those included.) The district judge relied on Wheat v. United
States, 486 U.S. 153 (1988), which holds that judges have discretion to reject proposed
waivers, if the lawyer’s conflict of interest would unduly affect the trial. The district
court’s explanation is thorough, and we affirm substantially for the reasons the district
judge gave. Burke’s opening brief does not mention Wheat, and the reply brief’s single
mention of that decision is too late, as well as too little.
This conclusion makes it unnecessary to discuss the other issues that the parties
have debated.
AFFIRMED