In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1467
JOE FREEMAN,
Petitioner-Appellant,
v.
N EDRA C HANDLER, Warden,
Dixon Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07-C-2927—Virginia M. Kendall, Judge.
A RGUED M ARCH 31, 2011—D ECIDED JUNE 20, 2011
Before C UDAHY, P OSNER and M ANION, Circuit Judges.
C UDAHY, Circuit Judge. Petitioner Joe Freeman appeals
from the district court’s denial of his Rule 60(b) motion
as a successive habeas corpus petition over which the
court lacked jurisdiction. Whether or not his motion
may be treated as a successive petition, we nevertheless
elect to affirm the denial of habeas relief on the merits.
2 No. 10-1467
I. Background
A. Facts
We briefly outline the facts relevant to our considera-
tion of Freeman’s habeas petition. In so doing, we rely
on the Illinois Appellate Court’s discussion on Freeman’s
direct appeal,1 which we may presume correct pursuant
to 28 U.S.C. § 2254(e)(1).
The relevant events began at the Cook County Criminal
Courts Building on California Avenue, where Freeman
was facing charges of aggravated battery and attempted
murder. The events underlying those charges occurred
on June 27, 2000, and the victim was Charles Gregory.
On November 8, 2000, Freeman visited the courthouse,
apparently to check the status of that case. Charles
Gregory was there as well with his friend Richard Tyler.
An argument erupted, wherein Freeman accused Gregory
of pressing a false attempted murder charge. Gregory
left the courthouse with Tyler, and as they were walking
on the sidewalk a car pulled up alongside them and
Freeman emerged. Freeman shot Gregory three times,
hitting his chest, forearm and shoulder; Tyler escaped.
In connection with this second attempt on Charles Greg-
ory’s life, Freeman was charged with attempted murder
and tried in the Illinois Circuit Court for Cook County.
1
The same court’s subsequent opinion in Freeman’s post-
conviction proceeding does not contain a discussion of
the facts, but only procedural matters. Consequently, we rely
on the court’s initial account of the facts, which has never
been questioned in later adjudications.
No. 10-1467 3
(For reasons apparently irrelevant to our case, the state
nolle prosequied Freeman’s initial assault and attempted
murder charges.)
B. Procedural History
Freeman’s Cook County bench trial was marked by
the procedural oddity that his counsel testified in his
defense. This occurrence is the focal point of Freeman’s
habeas case, so we recount the circumstances in detail.
One of Freeman’s two attorneys, Robert Nemzin, testi-
fied to an event that allegedly occurred at the California
Avenue courthouse on November 8 (the same day as
the shooting underlying the present case) while Nemzin
was serving as counsel to Freeman with respect to Free-
man’s initial assault and attempted murder charges.
Allegedly, Charles Gregory approached Nemzin and
stated, “[t]here [are] two forms of compensation. Either,
one, your client can go to the joint, or the other is open
for negotiation. What’s the deal?”
Nemzin continued to represent Freeman in connection
with his attempted murder charge for the November 8
shooting. At that trial, Nemzin proposed to testify about
his November 8 interaction with Gregory, and the
judge decided to allow it. Nemzin’s co-counsel and
law partner, Mr. Hickey, elicited testimony related to
Nemzin’s interaction with Gregory. Nemzin also testified
in relation to his possession of a couple of McDonald’s
receipts, significant in connection with Freeman’s defense.
Following Nemzin’s testimony, Nemzin conducted
direct examination of Freeman. But before Freeman
4 No. 10-1467
testified in his own defense, the judge engaged in a lengthy
colloquy with him, which we reproduce in relevant part:
The Court: Mr. Freeman, you want Mr. Nemzin
to continue as your attorney.
Freeman: Yes.
* * *
The Court: No complaints about Mr. Hickey or
Mr. Nemzin?
Freeman: No, your Honor.
* * *
The Court: No complaints, whatsoever, about Mr.
Nemzin being a witness and now acting as your
attorney?
Freeman: No, your Honor.
Freeman was convicted of attempted murder, and the
court sentenced him to a 25-year term of incarceration.
Freeman appealed directly from his bench trial, raising
inter alia the argument that there had been no proper
waiver of conflict-free counsel. The state appellate
court affirmed. No. 1-03-0059 (Ill. App. Ct. July 27, 2004).
The Illinois Supreme Court denied him leave to ap-
peal. People v. Freeman, 213 Ill.2d 566 (Ill. 2005). Freeman
initiated post-conviction proceedings in the Circuit
Court for Cook County, but that court denied him
relief, ruling that his claims were barred by res judicata.
The appellate court affirmed, No. 1-05-1430 (Ill. App. Ct.
May 16, 2006), and the Illinois Supreme Court again
declined to hear the case, 222 Ill.2d 584 (Ill. 2006).
No. 10-1467 5
Freeman then filed a federal habeas corpus petition
in the district court in May of 2007. In his habeas
petition prepared by counsel, Freeman did not
articulately complain about deprivation of conflict-free
counsel. The one indicated reason he urged for
granting the habeas petition was that “[t]he [Illinois]
Appellate Court erred when it held defendant
knowingly waived counsel of his choice.” But later in his
discussion, he also stated, “[t]he conversation between
the court and the defendant did not constitute a
sufficient knowing and intelligent waiver of defendant’s
right to a conflict-free counsel and of counsel of his
choice.”
The district court denied Freeman’s habeas petition.
Freeman v. Hulick, No. 07-CV-2927, 2009 U.S. Dist. LEXIS
55632 (N.D. Ill. June 29, 2009). In so doing, the court
took an ambivalent posture with respect to Freeman’s
conflict-free counsel argument. In its second footnote, the
court stated, “Freeman’s situation seems better suited to
an argument that Freeman did not properly waive
his right to conflict-free counsel. This is not, however, the
issue that Freeman, who is represented by counsel, has
raised.” One would expect that this aside would be the
last mention of the supposedly unpreserved issue. But
the court went on to discuss the substance of Freeman’s
conflict-free counsel argument for several paragraphs,
stating for instance, “although an attorney acting as
both defense counsel and as a witness is problematic,
Nemzin’s potential conflict of interest was minimal.”
This discussion appeared under a heading entitled,
“Waiver.”
6 No. 10-1467
Freeman filed a pro se motion pursuant to Federal
Rule of Civil Procedure 60, “Relief from Judgment or
Order,” alleging that his attorney had failed to properly
raise the issue of conflict-free counsel, and he wished
the court to decide it. The court ruled that the motion
was a successive petition within the meaning of 28 U.S.C.
§ 2244(b), because it asserted new claims of errors in
Freeman’s state conviction but was not based on new
facts or law. The court therefore ruled that it lacked
jurisdiction and denied his requested relief.
We granted Freeman a certificate of appealability
from the denial of his self-styled Rule 60(b) motion on
the following issues:
(1) Whether Freeman’s Rule 60(b) motion was an
unauthorized successive collateral attack;
(2) Whether the district court should have reopened
the judgment on the ground that it mistakenly
failed to identify all of Freeman’s claims; and
(3) Whether Freeman was denied his right to con-
flict-free counsel.
II. Analysis
The Supreme Court has recently visited the question
whether a Rule 60(b) motion for “Relief from Judgment” is
properly treated as a successive petition in habeas cases
in Gonzales v. Crosby, 545 U.S. 524 (2005). The Court
noted that the Rules of Civil Procedure apply in habeas
proceedings only to the extent they are not inconsistent
No. 10-1467 7
with federal statutory provisions and rules. Id. at
529 (citing 28 U.S.C. § 2254 Rule 11). So where a
Rule 60(b) motion raises arguments forbidden by
28 U.S.C. § 2244(b)(1) or (b)(2), it will amount to an im-
permissible successive petition and the district court
will lack jurisdiction. Id. at 530-32. Were this not the
case, prisoners would be able to use Rule 60(b) to cir-
cumvent statutory limitations on successive applica-
tions that are integral to federal habeas law. Id. at 532.
However, not every Rule 60(b) motion is forbidden: “A
motion that . . . challenges only the District Court’s
failure to reach the merits does not warrant such treat-
ment, and can therefore be ruled upon by the District
Court . . . .” Id. at 538; see also Peach v. United States, 468
F.3d 1269, 1271 (10th Cir. 2006).
Here, we will not look past the district court’s express
statement that Freeman had not raised the question of
conflict-free counsel. We therefore can properly assume
that the court did not decide the issue. It is true that the
court’s discussion looks very much like an analysis
of conflict-free counsel, but courts commonly discuss
matters they do not decide. We can properly hold that
the district court treated the question of conflict-free
counsel as waived.
But was the district court correct? Did Freeman suc-
cessfully raise the issue of conflict-free counsel in his
habeas petition? As noted, Freeman most prominently
highlighted the question of counsel of choice, and not
conflict-free counsel, in his petition. But conflict-free
counsel was also referenced in the petition, if inconspicu-
8 No. 10-1467
ously. The state discussed conflict-free counsel through-
out eleven pages of its answer, so there can be no
argument that it was lulled into believing that Freeman
was not arguing conflict-free counsel and was thereby
prejudiced. And the district court discussed the
merits of Freeman’s conflict-free counsel theory in its
memorandum. In short, the question of conflict-free
counsel received attention from everyone involved in
Freeman’s habeas case, which suggests it was not
waived. And, if not waived, the district court should
have addressed this argument fully on the merits. There-
fore, the district court should not have denied Freeman’s
Rule 60(b) motion. The motion correctly observed that
the district court had overlooked one of his arguments
for habeas relief. Hence, the motion was not a successive
habeas petition. See Gonzales, 545 U.S. at 538.
Ordinarily the district court should rule on the merits
of habeas petitions in the first instance, see, e.g., Holleman
v. Duckworth, 155 F.3d 906, 912 (7th Cir. 1998), but we
nonetheless have discretion to reach the merits of a
habeas claim although they were not first considered by
the district court, see Kaczmarek v. Rednour, 627 F.3d 586,
595 (7th Cir. 2010); Sprosty v. Buchler, 79 F.3d 635, 645-46
(7th Cir. 1996). And the district court’s discussion, though
legally ineffectual, certainly provides a preview of how
it might be expected to treat Freeman’s conflict-free
counsel argument on remand. Therefore, in view of the
discreteness of Freeman’s grievance and the com-
pleteness of the record before us and in the interest of
judicial economy, we elect to reach the merits.
No. 10-1467 9
We agree that defense counsel’s conflict of interest can
violate a defendant’s Sixth Amendment right to effective
assistance of counsel. See United States v. Adkins, 274
F.3d 444, 453 (7th Cir. 2001) (citing Cuyler v. Sullivan, 446
U.S. 335, 345 (1980)). But a knowing and voluntary
waiver of the right to conflict-free counsel is effective,
and will foreclose later arguments premised on this
right. See United States v. Lowry, 971 F.2d 55, 60 (7th Cir.
1992). Generally, “for a defendant’s waiver to be valid,
the judge need only ‘inform each defendant of the
nature and importance of the right to conflict-free
counsel and ensure that the defendant understands
something of the consequences of a conflict.’ ” United
States v. Turner, 594 F.3d 946, 952 n.1 (7th Cir. 2010) (quot-
ing United States v. Flores, 5 F.3d 1070, 1078 (7th Cir. 1993)).
The state points to the district court’s language to the
effect that Freeman effectively waived any conflict-
free counsel argument, during his colloquy with the trial
judge. And on direct appeal, the state appellate
court found Freeman had waived the argument. But
despite these contrary analyses, we shall assume with-
out deciding that Freeman did not waive the issue. This
is not because we doubt the prior rulings on this issue,
but simply because we prefer to consider the merits
instead of deciding the case on procedural grounds.
Therefore, solely for purposes of analysis, we shall treat
Freeman’s conflict-free counsel argument as preserved.
The question of what Freeman must show to secure
relief because of a conflict of interest on the part of
defense counsel is a thicket, but here a clear answer
10 No. 10-1467
emerges. The hitch is that there are two frameworks
for analyzing the question, one of which derives from
proceedings wherein counsel represents multiple
clients, and one of which considers whether counsel
was ineffective.
Under the former framework, defense counsel is said
to labor under an “actual” conflict of interest. If there is
any “adverse effect” on the attorney’s performance,
prejudice is presumed and the defendant’s argument
prevails. See Hall v. United States, 371 F.3d 969, 973 (7th
Cir. 2004) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).
This Cuyler framework applies “if the defense counsel
was faced with a choice between advancing his own
interests above those of his client.” Hall, 371 F.3d at 973
(citing Stoia v. United States, 22 F.3d 766, 771 (7th Cir.
1994)). We have also said that it applies “only where
there is a danger that [counsel] would ineffectively rep-
resent his client because of fear that authorities
might become aware of the attorney’s own misconduct.”
United States v. Balzano, 916 F.2d 1273, 1293 (7th Cir.
1990) (citation omitted).
But where this Cuyler precedent does not apply, the
defendant must carry the heavier burden of showing
that the conflict resulted in ineffective assistance under
the familiar framework of Strickland v. Washington, 466
U.S. 668 (1984). This means showing that counsel’s repre-
sentation fell below an objectively reasonable standard
of care, and that there is a reasonable probability that
but for counsel’s unprofessional errors the trial out-
come would have been different. Id. at 687, 694.
No. 10-1467 11
Freeman’s case does not come within the less
demanding Cuyler line, because his counsel was not
“actually” conflicted in the sense of being forced to
choose between himself and his client. Indeed, Nemzin
testified favorably to Freeman by impugning the cred-
ibility of the complaining witness. Cf. Enoch v. Gramley,
70 F.3d 1490, 1496-97 (7th Cir. 1995) (an actual conflict
may exist where counsel faces the prospect of having to
cross-examine a former client); Stoia, 22 F.3d at 772
(an actual conflict would exist where vigorous repre-
sentation might lead to revelation of counsel’s suborna-
tion of perjury in another case, and counsel’s violation
of a federal plea agreement); United States v. Cancilla,
725 F.2d 867, 870 (2d Cir. 1984) (counsel was actu-
ally conflicted where he had been involved in the
same criminal activity as the defendant); Solina v. United
States, 709 F.2d 160, 164-65 (2d Cir. 1983) (an actual
conflict existed where defense counsel’s vigorous rep-
resentation might have increased the likelihood of the
revelation that counsel was not admitted to practice law).
Therefore, Freeman’s conflicted counsel argument
must proceed pursuant to Strickland. The first prong
in the Strickland analysis is whether counsel’s per-
formance fell below an objectively reasonable standard
of care. It is not at all likely that Nemzin’s performance
did: much of the responsibility for allowing a defense
attorney to testify on behalf of his client belongs to the
circuit court. That Nemzin prevailed on the court to
allow him to testify speaks to his persuasiveness, although
it may reflect poorly on his command of criminal proce-
12 No. 10-1467
dure (and the Illinois Rules of Professional Conduct 2 ).
But the rules of ethics are not necessarily coextensive
with Strickland’s objectively reasonable standard of care.3
This question being legally murky and involved, we do
not decide it, and instead we proceed to the second
Strickland prong.
The second Strickland inquiry goes to the heart of
this habeas case, by asking whether, but for counsel’s
unprofessional errors, it is reasonably probable that the
outcome of the trial would have been different. In other
words, Freeman’s appeal boils down to the question
whether Nemzin’s testimony made any real difference
in his trial. In view of the record before us (including
the state appellate court’s adjudication of the issue, to
2
Under Rule 3.7(a), “[a] lawyer shall not accept or continue
employment in contemplated or pending litigation if the
lawyer knows or reasonably should know that the lawyer
may be called as a witness on behalf of the client.”
3
See Nix v. Whiteside, 475 U.S. 157, 165 (1986) (“Under the
Strickland standard, breach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guaran-
tee of assistance of counsel.”); see also John M. Burkoff, C RIMINAL
D EFENSE E THICS , § 6.1 (2d ed. 2010) (“[A] criminal defendant’s
Sixth Amendment right to effective, conflict-free counsel is
not coextensive with a defense attorney’s ethical obligation
to respond to—and avoid—conflicts.”) (internal parentheses
omitted).
No. 10-1467 13
which we owe deference 4 ), we are quite confident
that it did not. As discussed above, Nemzin testified
favorably to Freeman, and the state, not Freeman,
objected to his dual role. Nemzin’s testimony im-
pugned the credibility of the complaining witness,
and it was fairly effective in doing so: the judge
indicated that Nemzin’s testimony was plausible. But
this simply did not change the outcome in view of the
other evidence of Freeman’s guilt. There was no chance
of Nemzin’s dual role confusing a jury because
Freeman’s was a bench trial. Cf. United States v. Solis,
923 F.2d 548, 551 (7th Cir. 1991) (likelihood of confu-
sion relating to dual role of eyewitness and expert
witness is diminished in a bench trial context). And
as a final note, we observe that Freeman himself is con-
spicuously unable, despite his best efforts in his brief,
to articulate a credible theory that he was prejudiced
by Nemzin’s dual role.
We may affirm on any grounds present in the record.
See Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).
Despite the district court’s apparently erroneous denial
4
On direct appeal, the state appellate court held that Freeman
could not show that he was prejudiced by Nemzin’s dual
representation. We owe this determination deference, such
that the question we ask on habeas review is “whether the
state court’s determination that such a probability [of
prejudice] does not exist is reasonable.” Ellison v. Acevedo,
593 F.3d 625, 633 (7th Cir. 2010) (emphasis added).
14 No. 10-1467
of Freeman’s Rule 60(b) motion, Freeman is not entitled
to habeas relief. Accordingly, we A FFIRM .
6-20-11