In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-3791
ROBERT LEE HOLLEMAN,
Petitioner-Appellant,
v.
ZETTIE COTTON,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 95-C-123—Robert L. Miller, Jr., Judge.
____________
SUBMITTED SEPTEMBER 13, 2001Œ—DECIDED AUGUST 19, 2002
____________
Before CUDAHY, EASTERBROOK and ROVNER, Circuit
Judges.
CUDAHY, Circuit Judge. In this successive appeal,
Robert Holleman argues that the district court erred in
concluding that he could not demonstrate cause and
prejudice with respect to his ineffective assistance of
counsel claims so as to survive a dismissal of his second
petition under 28 U.S.C. § 2254 as an abuse of the writ. We
affirm.
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 00-3791
I.
Holleman was one of four people charged with the murder
of Robin Opfer in 1977. Holleman v. Miller, 101 F. Supp. 2d
700, 701 (N.D. Ind. 2000). Prior to his indictment for the
murder, Holleman had made some incriminating state-
ments to the police, but his statements also implicated
Frank Love as the shooter. Holleman v. Duckworth, 155
F.3d 906, 908 (7th Cir. 1998). The trial judge, Lake County
Superior Court Judge James Clement initially appointed
Stanley Jablonski to represent Holleman. Holleman, 101 F.
Supp. 2d at 701. When a disagreement arose between Hol-
leman and Jablonski, Judge Clement allowed Jablonski
to withdraw and appointed James Frank to represent Hol-
leman. Id. at 702. Frank had earlier represented co-defen-
dant Love in a separate trial. Id. at 701. The district court
found that Frank was chosen because he was familiar with
the case and Holleman had filed a speedy trial motion. Id.
at 702. Before appointing Frank to represent Holleman,
Judge Clement prudently asked Frank whether there
would be any conflict if Frank represented Holleman, and
Frank stated that he saw none. Id. at 702. This inquiry
occurred outside of Holleman’s presence, at a hearing un-
related to his case. Id.
Frank was available to represent Holleman because he
had been successful in persuading the prosecutor to dismiss
the murder charges against Love. The prosecutor had
dismissed those charges without prejudice based upon
insufficient evidence; Frank had persuaded the prosecutor
that Love was elsewhere (in South Bend) at the time that
Holleman had said Love was shooting Opfer. Id. As part
of an alibi defense in the Love trial, Frank had notified the
prosecutor that he would call Mary Schaar to testify in
support of Love’s alibi. Id.
During Holleman’s trial, the prosecutor called the same
Mary Schaar as a surprise witness, apparently to cast
doubt on Holleman’s statements attributing the shooting
No. 00-3791 3
to Love. Id. Frank unsuccessfully objected to the Schaar
testimony on grounds of relevancy, but he did not cross-
examine Schaar. Id. Later, Frank admitted that he did
not cross-examine Schaar to impeach her credibility be-
cause he feared that that course could lead to the prosecu-
tion’s re-instituting the charges against Love. Id.
Holleman was acquitted of first degree murder but he
was convicted of felony murder. He was sentenced to life
imprisonment. Holleman, 155 F.3d at 908. This outcome
suggests that the jury was not persuaded by the efforts of
the state to picture Holleman as the shooter instead of
Love (whom Holleman had fingered as the shooter).
After exhausting his direct appeal and state post-convic-
tion procedures in 1981, Holleman filed an application for
federal collateral relief pursuant to 28 U.S.C. § 2254, but
did not raise a claim of ineffective assistance of counsel
in that petition. That petition was denied, and this Court
affirmed the denial. Holleman v. Duckworth, 700 F.2d 391
(7th Cir. 1983). Subsequently, Jeffery Evans was assigned
to be Holleman’s new appellate counsel. After a diligent
search, Evans located Frank (who had been disbarred at
that point) and got Frank to admit that Frank had an
actual conflict of interest that adversely affected his per-
formance during Holleman’s trial.
On February 21, 1995, Holleman filed a second habeas
petition, in which he raised two claims (among others).
First, he argued that the trial court failed to make a prop-
er inquiry into whether Frank had a conflict of inter-
est—the “judicial inquiry” claim. See Holloway v. Arkansas,
435 U.S. 475, 483-84 (1977) (holding that a trial court
must inquire into the propriety of multiple representa-
tion where one party makes a timely objection); Cuyler v.
Sullivan, 446 U.S. 335, 347 (1980) (holding that a trial
court needs to initiate an inquiry only if it knows or reason-
ably should know that a particular conflict exists). Second,
he argued that Frank’s conflict of interest precluded Frank
4 No. 00-3791
from providing effective assistance of counsel—the “attor-
ney conflict” claim. See Cuyler, 446 U.S. at 350 (hold-
ing that an actual conflict of interest that adversely af-
fects defense counsel’s performance is a violation of the
Sixth Amendment). The state objected that Holleman failed
to raise these claims in his first petition, so Holleman’s
second petition should be dismissed as an abuse of the
writ unless Holleman could show cause and prejudice. See
McCleskey v. Zant, 499 U.S. 467, 494 (1991).
On May 31, 1995, the district court denied the petition
as an abuse of the writ. On September 15, 1998, we vacated
the district court’s order and remanded for an evidentiary
hearing to determine whether Holleman could demonstrate
cause and prejudice. Holleman, 155 F.3d at 911-12 (“Ac-
cordingly, we remand the case for an evidentiary hearing
to establish what the petitioner knew about the claim,
when he knew it, and the earliest he reasonably could
have known it.”). We held that the record before us did not
establish that Holleman knew of the attorney conflict or
about the trial judge’s knowledge of a potential conflict of
interest. Id. at 910-11. Further, the record did not “estab-
lish as a matter of law whether what Holleman did not
know but could have ‘discovered upon reasonable inves-
tigation’ would have supported a claim for relief.” Id. at
911 (quoting McCleskey, 499 U.S. at 498).1 Therefore, we re-
manded the case to a different judge for an evidentiary
hearing to determine whether Holleman “could have
1
The discussion in Holleman, 155 F.3d 906 (7th Cir. 1998), is
directed primarily to the question whether Holleman knew
enough about the conflicts claims to have brought those claims
in his first habeas petition, rather than entirely to the question
whether he knew enough to have a duty of further inquiry. This
may account for any apparent differences in evaluating some
of the evidence between that opinion and this one. Also the
present opinion speaks to the findings of a district judge after a
full evidentiary hearing.
No. 00-3791 5
discovered through reasonable diligence and investigation
a conflict of interest claim.” Id. (internal citation and quo-
tations omitted). Further, we held that Holleman must
also demonstrate prejudice to overcome the abuse-of-the-
writ defense. Id. We indicated that the record before us
suggested that the state trial judge knew or should have
known of the possibility of a conflict of interest such
that the trial judge should have made an adequate inquiry
into the conflict. Id.
An evidentiary hearing was conducted on May 25, 2000.
After that hearing, the district court denied Holleman’s
second petition as an abuse of the writ. Holleman, 101 F.
Supp. 2d at 706. The district court found that the trial judge
did not know, and could not have known, about the con-
flict. Id. at 704-5. The district court thus concluded that
Holleman could not show prejudice with respect to his
judicial inquiry claim. Id. at 705. The district court also
found that Holleman could have raised the judicial in-
quiry claim in his first petition, but that he inexcusably
failed to do so. Id. at 705. Further, the district court found
that Holleman had reason to inquire into the attorney
conflict claim, and that if he had inquired, he would have
been told of the conflict by Frank. Id. at 706. Thus, the
district court concluded that Holleman could not show
cause with respect to either claim. Id. Holleman appeals.
II.
This court has jurisdiction under 28 U.S.C. § 1921. We
review issues of law de novo, and issues of fact, for clear
error. See Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir.
2001). A factual finding is clearly erroneous when, after
reviewing the complete record, we are left with “the definite
and firm conviction that a mistake has been committed.”
Thornton v. Brown, 47 F.3d 194, 196 (7th Cir. 1995).
However, in habeas corpus proceedings, mixed questions
6 No. 00-3791
of law and fact are reviewed de novo. See Cuyler v. Sul-
livan, 446 U.S. 335, 342 (1980); Strickland v. Washington,
466 U.S. 668, 698 (1977) (same).
III.
“The doctrines of procedural default and abuse-of-the-
writ are both designed to lessen the injury to a State that
results through reexamination of a state conviction on a
ground that the State did not have an opportunity to
address at a prior, appropriate time; and both doctrines
seek to vindicate the State’s interest in the finality of its
criminal judgments.” McCleskey v. Zant, 499 U.S. 467, 493
(1991). The cause and prejudice standard in an abuse-of-
the-writ case is the same as in a procedural default case.
Id. at 494-95. “The standard is an objective one.” Id. at 495.
Holleman can show cause if he can demonstrate that he
did not know, and could not have discovered after reason-
able investigation, facts sufficient to raise the claim in his
first petition. Id. at 499. Holleman can show prejudice
as to the attorney conflict claim if he can demonstrate
that an actual conflict adversely affected the performance
of his trial counsel and as to the judicial inquiry claim if
the claim could have succeeded. See Cuyler v. Sullivan,
446 U.S. 335, 348-349 (1980) (counsel’s conflict of inter-
est); Mickens v. Taylor, ___ U.S. ___, 122 S. Ct. 1237, 1244
(2002) (trial court’s failure to inquire).
We affirm the dismissal of Holleman’s second petition
because Holleman cannot demonstrate both cause and
prejudice to meet the abuse-of-writ objection as to either
claim. While he may be able to demonstrate cause with
respect to his judicial inquiry claim, he cannot demon-
strate prejudice with respect to that claim. Holleman can-
not show prejudice from the judicial inquiry claim be-
cause the claim would not have succeeded since the trial
judge never had a duty to inquire more deeply than he
No. 00-3791 7
did into Frank’s conflict. The reverse is true with respect
to Holleman’s attorney conflict claim. He can demon-
strate prejudice with respect to that claim, but he can-
not demonstrate cause for failing to raise that claim in
his first petition. Holleman cannot demonstrate cause
because he failed to ask Frank whether Frank had been
burdened by a conflict (or to make an inquiry of another
equally plausible source). If Frank had enlightened Hol-
leman as to the conflict, Holleman could have brought
his claim based on this information. If Frank had denied
the existence of a conflict, Holleman would have established
cause (by an external impediment) for not including the
attorney conflict claim.
A.
Under Holloway and Cuyler, a trial court has the duty
to inquire adequately into a trial counsel’s conflict of in-
terest if it knows or reasonably should know that a particu-
lar conflict exists. See Holloway, 435 U.S. at 483-84 (estab-
lishing duty); Cuyler, 446 U.S. at 347 (holding that a trial
court must make an inquiry if it knows or reasonably
should know that a particular conflict exists). However,
“[a]bsent special circumstances, . . . trial courts may as-
sume either that multiple representation entails no con-
flict or that the lawyer and his clients knowingly accept
such risk of conflict as may exist.” Cuyler, 446 U.S. at 346.
While the Supreme Court recently has cast doubt on
whether the principle of Cuyler v. Sullivan should be
applied to cases where trial judges have failed to inquire
into conflicts of interest in successive representation cases,
see Mickens, 122 S. Ct. at 1245, even if Cuyler applied in
the present case, Holleman cannot show prejudice with
respect to his judicial inquiry claim.
Here, the trial court’s duty to inquire could be triggered
in two situations—before Holleman’s trial and during
8 No. 00-3791
his trial. The district court found that Holleman could
not show cause and prejudice in either situation. Although
it is a close question, we believe that Holleman could
demonstrate cause for his failure to raise the judicial in-
quiry claim in his first petition. Unbeknownst to Hol-
leman or to any of his appellate counsel (because it was
not in the trial record), Judge Clement had asked Frank
whether Frank would have a conflict of interest if he
were appointed to represent Holleman. Holleman, 101 F.
Supp. 2d at 702. Frank had answered that he saw no
conflict. Id. Had Holleman known of this inquiry, he like-
ly would have raised a judicial inquiry claim (relating
to what Judge Clement knew before trial) in his first
petition. Further, if Holleman had known about the trial
court’s inquiry, he likely would have brought a judicial
inquiry claim based upon the trial court’s failure to
make an inquiry when Frank developed an actual conflict
of interest during the trial. However, Holleman cannot
demonstrate prejudice because even if he had raised
the judicial inquiry claim in his first petition, the claim
would have failed because the trial court had no further
duty to inquire either before or during Holleman’s trial.
But cf. Mickens, 122 S. Ct. at 1244 (“[T]he rule applied
when the trial judge is not aware of the conflict (and
thus not obligated to inquire) is that prejudice will be
presumed only if the conflict has significantly affected
counsel’s performance.”).
Holleman argues that Judge Clement’s inquiry of
Frank demonstrated that Judge Clement knew that
there was a potential conflict of interest prior to trial (and
thus had a duty to inquire into the conflict), or alterna-
tively, Judge Clement should have become aware of the
conflict during the trial. Although the circumstances are
somewhat clouded, neither argument is compelling.
While “a possible conflict inheres in almost every in-
stance of multiple representation,” multiple representa-
No. 00-3791 9
tion in itself does not violate the Sixth Amendment.
Cuyler, 446 U.S. at 346. There were no “special circum-
stances” in this case that indicated to Judge Clement
that he should have conducted a more searching inquiry.
Id. at 346-47. First, no party objected to the multiple
representation. Second, “the provision of separate trials
for [the petitioner] and his codefendants significantly
reduced the potential for a divergence in their interests.” Id.
at 347. Thus, Judge Clement did not have to conduct a
more searching inquiry (although he was certainly not
precluded from making such an inquiry). The fact that
Judge Clement did inquire does not mean that Judge
Clement knew of a potential conflict of interest. If there
were an inference of a conflict of interest whenever a trial
court initiates such an inquiry, this could discourage
judges from making such inquiries. See Cuyler, 446 U.S.
at 346 n.10 (stating that it was desirable to require
trial courts to inquire into conflict of interest claims).
Discouraging trial judges from making such inquiries
is particularly indefensible in cases, such as the case
before us, where the trial judge is the one appointing de-
fense counsel. Cf. Mickens v. Taylor, ___ U.S. ___, 122
S. Ct. 1237, 1251 (2002) (Stevens, J., dissenting) (argu-
ing that the need for a thorough inquiry is greater when
the trial judge appoints the lawyer).
Further, Judge Clement’s question to Frank could be
considered an adequate inquiry into any potential con-
flict of interest. After Frank stated that he saw no conflict
of interest, there was no other evidence of conflict for
Judge Clement to pursue. Judge Clement could reason-
ably rely on Frank’s representation because (besides the
presumption that attorneys make truthful representa-
tions to the court) the district court found that Frank
reasonably believed that there was no conflict of interest.
Holleman, 101 F. Supp. 2d at 704-5. Frank had no reason
to anticipate that the state would call Schaar as a prosecu-
10 No. 00-3791
tion witness in Holleman’s trial, a development that en-
tangled Frank in a conflict. The finding about Frank’s
reasonable belief is not clearly erroneous and is sup-
ported by the record. Thus, Judge Clement did not know,
and could not have known, about a potential conflict of
interest on the part of Frank prior to the trial. Therefore,
the trial court did not have a duty to inquire, beyond the
question that it posed to the lawyer it was appointing,
into a conflict of interest before trial.
But should Judge Clement have known about the con-
flict during the trial? Holleman argues that, since Judge
Clement knew that Love had planned to present an alibi
defense, when one of Love’s alibi witnesses was called
in Holleman’s trial, Judge Clement should have known
at that time that this would create a conflict between
Frank’s obligation to Love and Frank’s obligation to Hol-
leman. The district court, however, found that Judge
Clement did not and could not realize the importance of
Mary Schaar. Holleman, 101 F. Supp. 2d at 705. This find-
ing is not clearly erroneous, and is supported by the
fact that Holleman’s own appellate counsel, Jeffery Evans
(who was searching for ineffective assistance of counsel
claims), could not find a conflict of interest claim based
on trial developments when he examined the trial tran-
script. Thus, the trial judge did not have a duty to inquire
into Frank’s conflict of interest during the trial because
he did not know, nor could he reasonably know, that
Frank had a conflict. Therefore, Holleman cannot show
prejudice with respect to his judicial inquiry claim.
B.
Holleman’s attorney conflict claim—that Frank had an
actual conflict of interest that adversely affected the out-
come of the trial—also must be dismissed because Hol-
leman cannot demonstrate cause for his failure to raise
No. 00-3791 11
the claim in his first petition. To show cause, the peti-
tioner must show that some “external impediment, wheth-
er it be governmental interference or the reasonable
unavailability of the factual basis for the claim, must
have prevented petitioner from raising the claim.” Mc-
Cleskey v. Zant, 499 U.S. 467, 493 (1991). The district
court found that there was no such external impediment
that prevented Holleman from learning about Frank’s
conflict of interest. Holleman, 101 F. Supp. 2d at 706.
First, the district court found that Holleman had reason
to inquire. Id. Further, the district court found that,
although Frank was hard to locate when Evans became
Holleman’s lawyer, “the record allows no inference that
Mr. Frank would have been difficult to locate in 1980 or
1981.” Id. The district court also found that Frank would
have revealed his conflict to Holleman if he had been asked.
Id. It concluded that Frank’s instruction to Holleman not
to write to Frank about theories for appeal was not “an
external impediment preventing the inquiry from be-
ing made.” Id. Thus, Holleman could not establish cause. Id.
The district court’s finding that Holleman had reason
to inquire into the conflict apparently rests upon the fact
that Holleman was suspicious about Frank’s multiple
representation. Holleman raised his suspicion with his
appellate counsel as early as 1977, and continued to be
suspicious throughout the state and federal appellate
processes. Within months of his sentencing, Holleman
wrote a letter to his appellate counsel, Dennis Kramer,
saying that he thought there was something wrong in
Frank’s having represented him after representing Love.
Kramer wrote back that, “you [Holleman] believe your
attorney, James Frank, was competent except for having
represented Frank Love earlier.” Holleman’s suspi-
cions were still alive ten years later when Holleman
commented to Evans, his then appellate counsel, “You
12 No. 00-3791
may want to look into this. This lawyer [Frank] that
represented me also represented my co-defendant.”
Holleman’s suspicion would have been insufficient to
itself form the basis for a conflict claim in Holleman’s
first petition because, among other things, multiple repr-
esentation is insufficient in itself to be a factual predicate
for a conflict claim. Cuyler, 446 U.S. at 706. But is Hol-
leman’s suspicion sufficient to require him to initiate
an inquiry? Or does Frank’s silence with respect to wheth-
er he had a conflict absolve Holleman from conducting
such an inquiry? What facts and circumstances must be
present to require a petitioner to inquire into a specific
basis for a claim, such as ineffective assistance of counsel
(based on a conflict of interest)? Our principal difference
with the dissent seems to revolve around this issue. Courts
such as the Court of Appeals for the Fourth Circuit in
Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), aff’d, 122
S. Ct. 1237 (2002), have apparently assumed that a peti-
tioner has such a duty, but have provided little analysis of
the question.
Mickens involved an attorney, Saunders, who had previ-
ously represented a juvenile that his present client,
Mickens, was accused of killing. Mickens, 240 F.3d at 354.
Saunders had not revealed his prior representation to
Mickens. Id. Mickens did not raise a claim for ineffective
assistance of counsel in his state habeas petition based
upon the conflict. When he filed a petition for federal
habeas relief based on the conflict, the district court held
that Mickens could show cause to overcome his state
procedural default because “Saunders’ silence and state
law requirements for secrecy of juvenile court records
operated together to preclude Mickens from raising the
conflict of interest claims in his state habeas petition.” Id.
at 356 (internal citation and quotation omitted) (emphases
added). The implication from this statement seems to be
that, if the only factor standing in the way of Mickens’
No. 00-3791 13
knowing about the conflict of interest was the silence of
the conflicted attorney, Mickens would have had to make
inquiry. The Court of Appeals for the Fourth Circuit agreed
with the district court’s conclusion that “the factual predi-
cate for [the conflicts claim] was not available to Mickens
in state court nor was it discoverable through the exer-
cise of diligent investigation.” Id. Mickens thus implies
that, if an inquiry would have revealed the factual predicate
for a claim and a petitioner has not made such an inquiry,
the petitioner would not have been able to show cause.
The juvenile confidentiality laws can be a factor in a peti-
tioner’s showing cause only if the petitioner had a duty
to inquire, but the confidentiality laws made such an
inquiry futile. Thus, Mickens’s holding must be based upon
a principle that the petitioner must inquire into the pos-
sibility of a conflict even if his attorney is silent.
Requiring Holleman to initiate an inquiry despite Frank’s
silence may appear over-demanding, particularly since
we have suggested that Judge Clement did not have to
initiate an inquiry into a possible conflict of interest in
the face of Frank’s silence. However, we must examine
the facts carefully. Judge Clement did ask the same
question of the counsel he was appointing (Frank) that we
are requiring Holleman to ask (of Frank). Judge Clement
was reassured by Frank’s response and did not pursue the
matter further. Presumably, had Holleman received a sim-
ilar response, cause would likely have been established.
In any event, before seeking to balance a trial court’s duty
to inquire with a habeas petitioner’s duty to inquire, we
must compare the purposes underlying their respective
inquiries into attorney conflicts. A trial court’s duty to
inquire is geared toward the management of an ongoing
trial and must be viewed in that context. The purpose of
the trial judge’s inquiry is to ensure that the defendant
is receiving a fair trial. If the trial judge is not put on no-
tice that there is a potential conflict, he is under no duty
14 No. 00-3791
to ferret out all the possible conflicts that might arise in
a multiple representation situation. His obligation to in-
quire, however, may be more serious if he is the one ap-
pointing the lawyer in question to represent a criminal
defendant.
In contrast, the petitioner’s duty to inquire into con-
flict claims is a duty to research historical facts that could
form the basis for habeas claims. “[The] [a]buse-of-the-writ
doctrine examines petitioner’s conduct: The question is
whether petitioner possessed, or by reasonable means could
have obtained, a sufficient basis to allege a claim in the
first petition and pursue the matter through the habe-
as process. The requirement of cause in the abuse-of-the-
writ context is based upon the principle that petition-
er must conduct a reasonable and diligent investigation
aimed at including all relevant claims and grounds for re-
lief in the first federal habeas petition.” McCleskey v. Zant,
499 U.S. 467, 498 (1991) (internal citations omitted) (em-
phasis in original). The importance of the petitioner’s ini-
tiative is central to this formulation.2
2
The dissent makes much of our alleged assignment of a heavier
obligation of inquiry to an uninstructed layman, Holleman, than
to a trained jurist, Judge Clement. We cannot say which of these
has the weightier duty—only that their respective duties arise in
different contexts and with a different perspective on the sur-
rounding facts and events. For example, Judge Clement may
have a number of cases on trial with a retinue of witnesses and
possibly more than one situation carrying within it the seeds of
a conflict of interest. Holleman, on the other hand, has only
his own case, in which he has an intense interest, to attend to,
and this probably makes up in practical opportunity for scrutiny
what he may lack in theoretical insight. It is really not unreason-
able to impose on him some obligation of inquiry into matters
that have aroused his suspicion.
No. 00-3791 15
Thus, Holleman had a duty to initiate an inquiry into
all relevant claims. One of those relevant claims is the
conflict of interest claim. And multiple representation easily
may lead to a conflict of interest claim. The Supreme Court
itself had recognized that possible conflicts inhere “in al-
most all instances of multiple representation.” Mickens, 122
S. Ct. at 1242. Holleman himself persisted in the belief
that there was something suspicious about the multi-
ple representation in his case. After being informed about
the multiple representation, Evans had uncovered the
actual conflict because Evans believed that there should
have been a waiver of any possible conflict arising from
the multiple representation. Deposition of Jeffery Evans
(May 1, 2000), p. 11, at 22-23. Thus, Holleman, based on the
existence of multiple representation coupled with his own
persistent suspicion, should have pursued the conflict
of interest claim. While Holleman might eventually con-
clude that there was no basis for such a claim (and he
would be correct if the only fact he learned after a “reason-
able and diligent investigation” was that Frank had rep-
resented Love), he was under a duty to make at least
minimal inquiries.
The extent of a petitioner’s required inquiry depends upon
whether there are “external impediment[s], whether [they]
be governmental interference or the reasonable unavail-
ability of the factual basis for the claim, [that] prevent[ ]
petitioner from raising the claim.” McCleskey, 499 U.S. at
493. A petitioner could show cause if he could demon-
strate either that an inquiry would have been futile be-
cause of an external impediment or that he had con-
ducted a “reasonable and diligent investigation” in light
of any external impediments. A petitioner could show
that an inquiry would be futile if he would not have
been able to discover the factual predicate for his con-
flict claim even if he had inquired. Cf. Mickens, 240 F.3d
at 356 (holding that petitioner demonstrated cause be-
16 No. 00-3791
cause state juvenile confidentiality law prevented petition-
er from discovering that his attorney had represented
petitioner’s murder victim even if he had inquired). Alterna-
tively, the petitioner could show that he had conducted “a
reasonable and diligent investigation aimed at includ-
ing all relevant claims and grounds for relief in the first
federal habeas petition,” McCleskey, 499 U.S. at 498, if
he had pursued all reasonable avenues of investigation.
For example, if the petitioner had asked his attorney
about conflicts of interest, and the attorney simply had
said that he was under no conflict, this inaccurate re-
sponse could constitute an external impediment to acquir-
ing enough information to make a conflict claim.
Here, Holleman cannot show cause in either of the
ways noted in the caselaw. Holleman never made an
inquiry into the conflict claim. Thus, he cannot be said
to have conducted “a reasonable and diligent investiga-
tion.” However, on this issue, Holleman argues that he did
satisfy the diligence requirement when he sent two letters
to Frank asking him about theories of appeal, and Frank
told Holleman to discuss such issues with his appellate
counsel. But, of course, Holleman’s inquiry was not spe-
cific to conflicts of interest, and Frank’s advisement did not
preclude Holleman from inquiring specifically about con-
flicts of interest when he was preparing his first federal
collateral appeal.
Holleman also contends that an inquiry would have
been futile despite the district court’s finding that Frank
would have revealed his conflict to Holleman if Holle-
man asked him. Holleman argues that there is nothing
in the record to suggest that Frank would have revealed
his conflict of interest to Holleman (as opposed to Frank’s
later revelation of the conflict to an attorney who con-
fronted him face-to-face), but there is also nothing in the
record that supports the opposite assumption—that Frank
would not have disclosed the conflict. Where there is more
No. 00-3791 17
than one reasonable interpretation from the facts (or
absence of facts), we cannot say that the district court
clearly erred in finding that Frank would have revealed
his conflict of interest to Holleman.3 Further, as we have
suggested, even if Frank had not revealed the conflict,
Holleman could still show cause if Frank’s response consti-
tuted an external impediment to Holleman’s acquiring suf-
ficient information for a conflicts claim.4
3
In contrast to the dissent, our reading of the evidence presented
at the evidentiary hearing suggests that Frank would have
revealed the factual predicate of the conflict claim to Holleman
because Frank was (unreasonably) unaware that he was con-
flicted. Frank was convinced that Holleman was involved in the
crime. Telephonic Deposition of James Frank (April 28, 2000),
p. 38, at 15-17. Frank believed that a substantive defense was
not available and would not have been successful. Id., p. 33, at 24-
25. The reason for this was that Holleman had made incriminat-
ing statements to the police. Id., p. 34, at 2-3. Rather, Frank
sought to win for Holleman based on a “form and procedure”
defense. Id., p. 32, at 21-23. This defense was apparently to get
Holleman’s statements thrown out based upon constitutional
violations. Further, Jeffery Evans testified that Frank was very
cooperative and Frank spoke a great deal about the alibi defense
of his prior client, Love. Deposition of Jeffery Evans (May 1, 2000),
p. 46-47. It was difficult to get Frank to “look from the perspective
of his subsequent client, Mr. Holleman.” Id. Evans also testified
that he had to sit down with Frank with the notice of alibi in
Love’s case and said, “look don’t you see a problem with this. And
finally—I mean he would see the problem, he would acknowledge
the conflict.” Id., p 47, at 14-18. This evidence indicates that
Frank would have revealed, if asked, his convictions about Hol-
leman’s culpability and his defense strategy, which he would not
see as presenting conflicts problem.
4
The dissent, in attempting to lighten the burden on Holleman,
emphasizes the derelictions of Frank and claims that Frank’s
breach of a fiduciary duty to disclose his conflicts relieves
(continued...)
18 No. 00-3791
An inquiry could also be futile if Frank could not be
located (and that difficulty to locate Frank would consti-
tute an external impediment). But the district court found
that Frank “would [not] have been difficult to find in 1980
or 1981,” Holleman, 101 F. Supp. 2d at 706. This finding
was not clearly erroneous. Frank was a public defender
in Lake County until he resigned in early 1979 or 1980.
Telephonic Deposition of James Frank, p. 37, at 16-17. He
continued practicing law in Lake County until around
1985 when his activities led to a twenty-three count in-
dictment against him. Frank v. United States, 914 F.2d
828, 829 (7th Cir. 1990).
Thus, there was no cause for Holleman’s failure to include
the attorney conflict claim in his first petition and Hol-
leman cannot overcome the abuse-of-the-writ objection to
his claim.
IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
4
(...continued)
Holleman of any duty to inquire about them. The dissent urges
reliance on Frank’s silence as an external impediment to knowl-
edge of the conflict. But, no matter how censurable the conduct
of Frank, this cannot free Holleman of his obligations when
seeking habeas relief. To say that Frank’s silence is an external
impediment is to free Holleman of his well-recognized obliga-
tion to inquire. On the other hand, we have indicated that, if
Holleman had made an inquiry, then Frank’s silence might have
constituted an external impediment.
No. 00-3791 19
ROVNER, Circuit Judge, dissenting. The majority’s deci-
sion to dismiss Holleman’s current habeas petition as an
abuse of the writ rests on two contradictory conclusions. On
the one hand, the majority holds that Judge Clement, who
appointed attorney Frank to represent Holleman and
who presided over Holleman’s trial, had no obligation to
investigate the possibility that Frank had a conflict of
interest. The simple fact that Frank previously had se-
cured the dismissal of charges against Holleman’s co-
defendant was not enough, my brothers reason, to alert
the judge to the potential conflict. Yet, the majority goes
on to conclude that Holleman, who if anything knew less
about the relevant facts than Judge Clement, did have a
duty to look into his attorney’s potential conflict, and that
he effectively forfeited his claim by not discovering the
pertinent evidence by 1981, when he filed his first habeas
petition. On the facts, both of these conclusions cannot
be true; one proves the other wrong.
Central to my brothers’ reasoning is the notion that
because nothing prevented Holleman from asking his
counsel about the conflict prior to 1981, he should have
posed that question to Frank notwithstanding the ab-
sence of facts placing him on notice of the conflict. The
law could not be more clear, however, that it was Frank’s
affirmative obligation to disclose the conflict without
Holleman or anyone else having to ask him about it. Frank
breached that obligation by not speaking up when the
conflict first materialized at Holleman’s trial, and he
compounded the breach by restraining his advocacy on
behalf of Holleman rather than jeopardizing the inter-
ests of his former client, Love. Once he had deprived
Holleman of the candor and undivided loyalty to which he
was entitled, Frank’s interests diverged sharply from
Holleman’s: Frank could not have disclosed the conflict
to Holleman without exposing his own profound ethical
transgressions; and yet, so far as the record reveals, Frank
20 No. 00-3791
was the only person who knew of the conflict and the
impact it had on his representation of Holleman. In realis-
tic terms, Frank’s silence impeded Holleman’s ability to
recognize and pursue the conflict claim. And this impedi-
ment must be regarded as one that was external to Hol-
leman’s defense, for in remaining silent about the conflict,
Frank was in no way acting on Holleman’s behalf or in his
interest; he was protecting himself.
Only after a fourteen-year silence, a felony conviction, and
the surrender of his law license did Frank at last con-
fess the conflict that burdened him at Holleman’s trial.
Yet, my brothers blithely assume that had he only been
asked about the conflict in 1980 or 1981, Frank surely
would have disclosed it to Holleman. Given that Frank had
already breached his obligation to disclose the conflict
sua sponte, not to mention the additional fact that by
1980, Frank was engaged in a pattern of bribery that would
ultimately result in his conviction for obstruction of justice
(among other crimes), I find that assumption astonishing.
A sensible reading of the record makes plain that Hol-
leman had ample cause for not discovering his attorney’s
actual conflict before he filed his first habeas petition in
1981. Holleman therefore did not abuse the writ by pursu-
ing his conflict of interest claim in a later petition.
1.
My brothers are, of course, on solid ground in conclud-
ing that Judge Clement had no obligation, when he first
appointed Frank to represent Holleman, to question the
attorney about a possible conflict of interest. The Supreme
Court has made clear that multiple, or in this case serial,
representation of clients with potentially divergent inter-
ests does not alone require the court to make a conflicts
inquiry. Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S. Ct.
1708, 1717 (1980); see also Mickens v. Taylor, 122 S. Ct.
No. 00-3791 21
1237, 1245-46 (2002). Although Judge Clement necessar-
ily was aware that Frank had succeeded in having the
charges against Holleman’s co-defendant, Frank Love,
dismissed without prejudice, the judge (so far as the rec-
ord reveals) had no way of anticipating that a zealous
defense of Holleman might be adverse to Love’s inter-
ests. My colleagues rightly disregard the fact that Judge
Clement did think to ask Frank about the possibility
of a conflict. Ante at 9. Because the facts known to the
judge at that time did not obligate him to make the in-
quiry, the judge’s question was, constitutionally speak-
ing, gratuitous: “The fact that Judge Clement did inquire
does not mean that [he] knew of a potential conflict of
interest.” Ante at 9.
I am less certain that Judge Clement remained free
of any inquisitorial burden once Love’s alibi became an
issue at Holleman’s trial. Frank had, of course, assured the
judge when he was appointed that he saw no conflict; and,
as the district court observed, the judge was entitled to
rely on that assurance “without more red lights discern-
ible to the court.” Holleman v. Miller, 101 F. Supp. 2d
700, 704 (N.D. Ind. 2000); see United States v. Fish, 34 F.3d
488, 493 (7th Cir. 1994). However, additional warning lights
did illuminate in the course of the trial. Although the
charges against Love had been dismissed, his role in the
offense turned out to be an important issue in Holleman’s
prosecution. In his post-arrest statements, Holleman had
identified Love as the person who shot and killed Opfer.
Trial Record (“TR”) 140A (State’s Ex. 20), 140B (State’s
Ex. 21), 143, 144, 151, 153. In retrospect, it appears undis-
puted that Holleman was correct in this assertion. Al-
though, so far as the record reveals, the State never
attempted to reinstate the charges against Love, even the
Indiana Supreme Court’s opinion affirming Holleman’s
conviction identifies Love as the shooter. Holleman v.
Indiana, 400 N.E.2d 123, 124-25 (Ind. 1980); see 28 U.S.C.
22 No. 00-3791
§ 2254(e)(1) (“a determination of a factual issue made by
a State court shall be presumed to be correct”). But at
Holleman’s trial, this point was very much in dispute.
Consistent with his post-arrest statements, Holleman’s
theory of defense was that he was a hapless, drug-impaired
bystander to a chaotic series of events that culminated
in Opfer’s death. See, e.g., Post-Conviction Record (“PR”)
317-18 (defense closing argument). In an effort to discredit
that defense, the State sought to prove that it was Hol-
leman, not Love, who shot Opfer. See PR 296 (State’s
opening statement). Toward that end, the State not only
elicited evidence that the charges against Love had been
dismissed, TR 170-71, but summoned Mary Schaar to
establish Love’s alibi, Tr. 171-79.1 By this juncture, it
would have been plain to the judge that this was not a
case of mere successive representation of co-defendants.
Judge Clement knew from the outset that the charges
against Love had been dismissed without prejudice, for
it was he who had granted the State’s nolle prosequi mo-
tion. Once Love’s role in the offense was raised at
Holleman’s trial, it should have been apparent to the
1
This evidence laid the foundation for a theme that the State
pursued vigorously in its closing arguments—that as the likely
“triggerman,” Holleman was the person most culpable (if not
solely responsible) for the robbery and killing of Robin Opfer (as
well as Scott Moore), and that Holleman’s post-arrest statements
were incredible to the extent they attempted to pin the blame
for Opfer’s murder on Love and the other participants in the
robbery. See, e.g., PR 302 (“[Holleman] was the principle [sic],
he pulled the trigger, and he worked alone.”); 308 (“I submit
Frank Love was nowhere near that apartment on the 5th day
of October, +76. He is now dismissed out of this case.”); 315 (“The
night of the 5th, I submit to you, Robert Holleman killed Robin
Op[f]er.”); 321 (“The murder of Scott Moore, I submit to you, was
committed by the defendant.”); see also PR 296, 305, 307, 309, 310,
312, 313-14.
No. 00-3791 23
judge that Frank was in an untenable position. Frank
could not further his current client’s cause without sacrific-
ing his former client’s interests; any effort that Frank
might make to implicate Love as the shooter necessarily
would jeopardize the dismissal of the charges against
Love. Having presided over Love’s case as well as Hol-
leman’s, Judge Clement needed no special insight to dis-
cern the conflict. That Frank remained silent when the
State elicited testimony regarding the dismissal of the
charges against Love, and that he chose not to cross-
examine Schaar about Love’s alibi, confirmed the need
to re-examine Frank about the conflict.
My colleagues acknowledge the possibility that Judge
Clement, even if he was not obliged to investigate the
possibility of a conflict at the time he appointed Frank,
might have become obliged to do so later. Ante at 7-8, 10.
However, they sustain as not clearly erroneous the dis-
trict court’s conclusion that the judge never incurred
such an obligation, even when Love’s role in the offense
emerged as a key issue at Holleman’s trial. Id. at 10.
Yet, the district court’s finding in this regard is conclusory:
The court simply stated that “Mr. Frank may have been
obliged to inform the court of his ethical quandary once
Ms. Schaar appeared on the witness stand, but nothing
required the court to conduct an inquiry then, earlier, or
later.” 101 F. Supp. 2d at 705. In the run-up to that con-
clusion, the court noted that when Judge Clement had
appointed Frank to represent Holleman, he knew noth-
ing that would have alerted him to a potential conflict
beyond the fact that Frank had previously represented
Love and that the charges against Love had been dis-
missed. Id. at 704. At that point in time, the court empha-
sized, Frank himself could not have anticipated that the
State would call Schaar to testify at Holleman’s trial. Id.
But nowhere in its analysis did the court consider the
changed landscape that Judge Clement confronted once the
24 No. 00-3791
trial was underway and the conflict between the State’s
theory of the case (that Holleman was the shooter) and
Holleman’s position (that Love was the shooter) became
manifest. See id. at 704-05. I must therefore question the
decision to defer to that aspect of the district court’s
decision.
2.
Let us suppose however, that indeed the facts known to
Judge Clement never sufficed to put him on notice of a
potential conflict of interest. That conclusion, it seems to
me, supplies Holleman with cause for his failure to pursue
his claim of actual conflict sooner than he did. On the
facts, any other conclusion makes no sense.
Recall that Holleman lacked the evidence necessary
to establish an actual conflict until 1991, when Hol-
leman’s post-conviction counsel finally tracked Frank
down for the second time and Frank, reluctantly it seems,
at last acknowledged the conflict. See ante at 12. No one
is arguing that Holleman knew about this conflict in
1981, when he filed his first habeas petition, and that he
simply chose to sit on the evidence. The argument that
Holleman abused the writ is premised instead on the theo-
ry that the pertinent information was available to Hol-
leman prior to 1981, such that he could (and should) have
raised the conflict claim in his first habeas petition. I think
that the facts supply us with great reason to doubt that
the evidence necessary to establish Frank’s divided loy-
alties really was available to Holleman prior to 1981, and
I shall have more to say about that in a moment. But first
I think it necessary to question whether Holleman was
under any obligation to go in search of that evidence prior
to 1981. In my view, he was not.
McCleskey v. Zant requires only that a habeas petition-
er exercise due diligence in the identification and pursuit
No. 00-3791 25
of his claims. 499 U.S. 467, 498, 111 S. Ct. 1454, 1472
(1991). When he files his initial federal habeas petition, the
petitioner must present not only claims of which he is
actually aware, but also those as to which he is on no-
tice and therefore could have developed through diligent
investigation. Ibid. If he fails in his first petition to pur-
sue a particular claim, the legal and factual basis for
which was reasonably available to him at that time, the
claim will be foreclosed to him later under the abuse-of-the-
writ doctrine, absent proof that a fundamental miscar-
riage of justice would result. Id. at 493-94, 497-98, 111
S. Ct. at 1470, 1472. McCleskey does not, however, require
the petitioner to divine potential claims that he neither
knows about nor has reason to know about. See, e.g.,
Amadeo v. Zant, 486 U.S. 214, 222, 108 S. Ct. 1771, 1777
(1988), cited in McCleskey, 499 U.S. at 498, 111 S. Ct. at
1472. If the claim was “reasonably unknown” to the peti-
tioner when he filed his first habeas petition, Reed v.
Ross, 468 U.S. 1, 14, 104 S. Ct. 2901, 2909 (1984), he
remains free to pursue the claim in a later habeas pe-
tition. Thus, we can say that Holleman abused the writ
by pursuing his claim of actual conflict in a second ha-
beas petition only if the facts reveal that he was on notice
that his attorney may have been burdened by such a
conflict at the time he filed his first petition. See McCleskey,
499 U.S. at 498-500, 111 S. Ct. at 1472-73.
Here is where the majority’s rationale sustaining Judge
Clement’s own failure to investigate the possibility of a
conflict comes into play. My brothers’ conclusion that
the judge had no occasion to ask Frank about the con-
flict demonstrates why Holleman was not on notice of the
conflict claim. So far as the record reveals, Holleman’s
knowledge of the circumstances underlying the conflict
was no greater than Judge Clement’s. See 101 F. Supp.
2d at 705. The facts known to the judge revealed only
that Frank had previously represented Holleman’s co-
26 No. 00-3791
defendant and that the charges against Love had been
dismissed. If those facts were not enough to obligate Judge
Clement to look into the possibility of a conflict of inter-
est on Frank’s part, then there is no reason to think
that Holleman, a non-lawyer, had reason to question his
lawyer’s loyalties either. Indeed, the trial record sug-
gested to neither Holleman’s appellate lawyer nor his post-
conviction counsel that Holleman had a basis on which to
assert a claim for conflict of interest. PR 269; Deposition
of Jeffery A. Evans (“Evans Dep.”) 7; see ante at 10.
To say that Frank’s successive representation of Love
and Holleman was by itself enough to alert Holleman to
the possibility of a conflict and to require him to inves-
tigate that claim (ante at 15) is to hold the unwitting
client to a higher standard of inquiry than the very
judge who created the conflict of interest by appointing
the same attorney to represent two co-defendants. No
justification supports the double standard in this case.2
2
Although my colleagues attempt to differentiate Judge Clem-
ent’s obligation to investigate potential conflicts of interest from
Holleman’s own duty, I find the distinction they draw unconvinc-
ing. My colleagues reason that whereas “[t]he purpose of the trial
judge’s inquiry is to ensure that the defendant is receiving a
fair trial,” ante at 13, the aim of the petitioner’s inquiry is “to
research historical facts that could form the basis for habeas
claims,” ante at 14. These are but two sides of the same coin, how-
ever: The trial judge acts to protect the defendant’s rights, while
the habeas petitioner seeks to establish the ways in which his
rights were not honored. Just as a judge cannot be expected
to make a reasoned and fair decision when the relevant facts
are kept from her, a petitioner cannot be expected to challenge
a deprivation of his rights when he is unaware that a deprivation
has even occurred. The duty of inquiry for judge and petitioner
alike is defined in terms of notice. If, as my colleagues have
concluded, the facts confronting Judge Clement were not suffi-
(continued...)
No. 00-3791 27
At most Holleman’s knowledge was on par with the
judge’s, and in realistic terms, Holleman knew signifi-
cantly less. See 101 F. Supp. 2d at 705. Holleman did not
have the first-hand knowledge of the disposition of
Love’s case that Judge Clement did by virtue of having
been the presiding judge. Holleman did not even know
that the judge had thought to ask Frank about the pos-
sibility of a conflict, since that discussion took place in an
unrelated proceeding outside of Holleman’s presence.
Ante at 8. Moreover, although we have said that Judge
Clement was not required to ask that question, ante at 9,
we have also said that the judge was entitled to rely on
Frank’s assurance that he saw no conflict, ante at 9-10. It
is the attorney’s duty to speak up when a conflict becomes
apparent, the Supreme Court and this court have empha-
sized, Cuyler, 446 U.S. at 346, 100 S. Ct. at 1717; Holloway
v. Arkansas, 435 U.S. 475, 485-86, 98 S. Ct. 1173, 1179
(1978); Fish, 34 F.3d at 493, so unless and until Frank
voiced a concern, the judge was entitled to assume all
was well. Ante at 9-10. Sauce for the goose is sauce for the
gander. In the face of Frank’s silence about a conflict,
Holleman too ought to have been entitled to assume that
no conflict existed.
My colleagues posit that Holleman would have had cause
for not pursuing the conflict of interest if, like Judge
Clement, Holleman had asked Frank about a conflict
and Frank had given him the same reassuring answer
that he gave the judge. Ante at 7, 13, 16. This implies
that Holleman could have justifiably relied on a false
representation from Frank about the conflict, but not
on Frank’s silence. Here again my colleagues fail to ap-
2
(...continued)
cient to alert him to a conflict and thus to compel an inquiry,
then the same facts could not, without more, have obligated a
layman in Holleman’s position to inquire.
28 No. 00-3791
preciate the significance of the attorney’s obligation to
speak when confronted with a conflict. An omission is
treated as the equivalent of an affirmative misrepresenta-
tion when an individual knows a material fact but fails
to disclose it to another person to whom he owes a fidu-
ciary duty. See, e.g., S.E.C. v. Zandford, 122 S. Ct. 1899,
1905 (2002). Indubitably, the relationship between an
attorney and his client is fiduciary in nature. E.g., Sanders
v. Townsend, 582 N.E.2d 355, 358 (Ind. 1991).
There are few of the business relations of life involv-
ing a higher trust and confidence than that of attor-
ney and client, or, generally speaking, none more
honorably and faithfully discharged; few more anx-
iously guarded by the law, or governed by sterner
principles of morality and justice; and it is the duty of
the court to administer them in a corresponding spirit,
and to be watchful and industrious, to see that confi-
dence thus reposed shall not be used to the detriment
or prejudice of the rights of the party best owing it.
***
It is a basic principle of professional conduct that an
attorney must faithfully, honestly, and consistently
represent the interest and protect the rights of his
client, and that he is bound to discharge his duties to
his client with the strictest fidelity, to observe the
highest and utmost good faith, and to inform his client
promptly of any known information important to him.
Bell v. Clark, 653 N.E.2d 483, 489-90 (Ind. App. 1995), aff’d
and adopted, 670 N.E.2d 1290 (Ind. 1996), quoting
Blasche v. Himelick, 210 N.E.2d 378, 381 (Ind. App. 1965).
In view of the fiduciary character of this relationship, it
is not the client’s duty to ask about conflicts of interest, it
is his attorney’s obligation to disclose them on his own
initiative. See Cuyler, 446 U.S. at 346, 110 S. Ct. at 1717;
Holloway, 435 U.S. at 485-86, 98 S. Ct. at 1179; United
No. 00-3791 29
States v. Mandell, 525 F.2d 671, 677 (7th Cir.) (per curiam),
cert. denied, 423 U.S. 1049, 96 S. Ct. 774 (1976); see also,
e.g., Campbell v. Rice, 265 F.3d 878, 885 n.2 (9th Cir. 2001),
abrogated on other grounds by Mickens v. Taylor, 122
S. Ct. 1237, 1243 n.3 (2002); In re Young, 91 F.3d 1367,
1375 (10th Cir. 1996); I.B.M. Corp. v. Levin, 579 F.2d
271, 281-82 (3d Cir. 1978); Holland v. Henderson, 460 F.2d
978, 981 (5th Cir. 1972); Felix v. Balkin, 49 F. Supp. 2d
260, 271-72 (S.D.N.Y. 1999); Indiana Rules of Profession-
al Conduct 1.4(b); 1.7(b)(2); 1.9(a); 1.16(a)(1). As Justice
Story observed more than 175 years ago:
An attorney is bound to disclose to his client every
adverse retainer, and even every prior retainer, which
may affect the discretion of the latter. No man can be
supposed to be indifferent to the knowledge of facts,
which work directly on his interests, or bear on the
freedom of his choice of counsel. When a client employs
an attorney, he has a right to presume, if the latter be
silent on the point, that he has no engagements, which
interfere, in any degree, with his exclusive devotion to
the cause confided to him; that he has no interest, which
may betray his judgment, or endanger his fidelity.
Williams v. Reed, 29 F. Cas. 1386, 1390 (C.C. D. Maine
1824) (No. 17, 733) (emphasis mine). Thus, Holleman was
every bit as entitled to rely upon Frank’s silence as a sig-
nal that he labored under no conflict as Judge Clement
was to rely on Frank’s words to that effect.
For purposes of the cause analysis, Frank’s silence posed
an external impediment to Holleman’s ability to recognize
and pursue the conflict claim in habeas proceedings.
See McCleskey, 499 U.S. at 497-98, 111 S. Ct. at 1472, cit-
ing Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct.
2639, 2645 (1986); Coleman v. Thompson, 501 U.S. 722,
753, 111 S. Ct. 2546, 2566 (1991); see also, e.g., Amadeo,
486 U.S. at 222, 108 S. Ct. at 1777; Crivens v. Roth, 172
F.3d 991, 995-96 (7th Cir. 1999); Jennings v. Purkett, 7 F.3d
30 No. 00-3791
779, 782 (8th Cir. 1993) (divided loyalties of petitioner’s
counsel can supply cause for procedural default); Jamison
v. Lockhart, 975 F.2d 1377, 1380 (8th Cir. 1992) (same). As
the Supreme Court has recognized, it is the attorney—not
his client or the court—who is in the best position to
recognize conflicts of interest. Mickens, 122 S. Ct. at 1241;
Holloway, 435 U.S. at 485, 98 S. Ct. at 1179. Indeed, so
far as the record in this case reveals, no one but Frank
actually knew about the conflict that materialized in the
course of Holleman’s trial until 1991, when Frank finally
confessed the conflict to Holleman’s post-conviction coun-
sel. By not disclosing the conflict when it arose, Frank
breached his ethical obligation to Holleman.3 To make
matters worse, Frank then abandoned his advocacy on be-
half of Holleman. As Frank would later acknowledge,
when Mary Schaar took the stand to establish Love’s alibi
and in this way bolster the State’s theory that Holleman
was the triggerman in Opfer’s murder, Frank was pre-
sented with an untenable dilemma: Jeopardize the inter-
ests of his former client, Love, by attempting to discredit
Schaar’s testimony, or jeopardize the interests of his
current client, Holleman, by remaining silent. See PR 199-
200. Frank chose the latter course. Sacrificing one client
for another in this way is an especially “pernicious” eth-
ical breach. United States v. Marshall, 488 F.2d 1169, 1194
(9th Cir. 1973), quoting Holland v. Henderson, 460 F.2d
3
Although cases such as Holloway and Cuyler, which recognize
the attorney’s duty to disclose conflicts of interest, were decided
after Holleman’s 1977 trial, the notion was by no means novel. As
Justice Stevens recently observed, “[t]he lawyer’s duty to disclose
his representation of a client related to the instant charge is not
only intuitively obvious, it is as old as the profession.” Mickens,
122 S. Ct. at 1249 (Stevens, J., dissenting). Indiana’s rules of pro-
fessional conduct embodied that duty well before Holleman’s trial.
See, e.g., In re Smith, 351 N.E.2d 1, 3 (Ind. 1976); In re Farr,
340 N.E.2d 777, 784-85 (Ind. 1976); Carlson v. Carlson, 266
N.E.2d 807, 809 (Ind. App. 1971).
No. 00-3791 31
at 981. At this point, Frank’s interests were adverse to
Holleman’s: Holleman had an obvious right and need
to know that his attorney’s conflict of interest had caused
him to censure his own advocacy; but for Frank to dis-
close the conflict belatedly would be to acknowledge that
he had committed profound ethical violations. Not sur-
prisingly, Frank chose to remain silent. He hid the evi-
dence that would have enabled Holleman to assert the
conflict-of-interest claim, just as surely as an errant pros-
ecutor might hide his suppression of exculpatory evi-
dence or a trial judge might hide his bribe-taking and so
impede a petitioner from pursuing those constitutional
violations. Against that backdrop, Holleman cannot rea-
sonably be expected to have pursued the conflict-of-interest
claim in his 1981 habeas petition. Cf. Amadeo, 486 U.S. at
224, 108 S. Ct. 1777-78 (sustaining finding that habeas
petitioner had cause for failing to make state-court chal-
lenge to composition of juries that indicted, convicted, and
sentenced petitioner to death, where State had concealed
racial manipulation of jury pools and memorandum re-
vealing such manipulation was discovered by chance
after time for pursuing jury claim in state court had already
passed); Crivens, 172 F.3d at 995-96 (finding that habeas
petitioner had not procedurally defaulted Brady claim
notwithstanding his failure to raise that claim in state
court, given that State had not disclosed information which
formed basis for claim until after he had filed his federal
habeas petition); Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.
1994) (finding cause for procedural default of claim relating
to petitioner’s mental health, where petitioner’s counsel
had relied on false representation of state official that
petitioner’s juvenile mental health records had been
destroyed).4
4
My colleagues read the Fourth Circuit’s opinion in Mickens v.
Taylor, 240 F.3d 348, 356 (4th Cir. 2001), aff ’d, 122 S. Ct. 1237
(continued...)
32 No. 00-3791
Ah, the court points out, but Holleman himself voiced
suspicions about his lawyer’s divided loyalties when he
flagged the matter for his appellate and post-conviction law-
yers; and that suspicion, they believe, obligated him to
inquire further. Ante at 11-12, 15. True enough, Holleman
did think to mention Frank’s representation of Love and
himself to counsel, but so far as the record reveals, nothing
more than a naked hunch prompted him to do so. There
is absolutely no evidence that Holleman had any inkling
that an actual conflict of interest burdened Frank’s repre-
sentation of him. Recall that it occurred to Judge Clement
himself to ask Frank whether he thought that the dual
representation presented any conflict, yet we have said that
the judge’s question does not signal that he was on notice
of the conflict and thus under an obligation to investigate
it. Ante at 9. Holleman’s own subjective concerns, unsup-
ported by facts sufficient to have placed him on reasonable
notice of a conflict, are similarly beside the point.5
4
(...continued)
(2002), to imply that an attorney’s silence as to his conflict of
interest does not alone excuse the petitioner’s failure to investi-
gate the conflict. Ante at 12-13. I believe that they read too much
into that court’s holding however. It is true that the Mickens court
cited both the attorney’s silence and the secrecy of juvenile court
records as the basis for its conclusion that the petitioner had
established cause for his failure to raise the conflict in a timely
manner. 240 F.3d at 356. However, at no point did the court
consider whether the lawyer’s silence by itself would have been
insufficient to excuse the procedural default; that question simply
was not presented.
5
Holleman’s testimony before the district court confirms that
nothing more than a hunch prompted him to first mention Frank’s
successive representation of Love and himself to his appellate
counsel, Dennis Kramer. Holleman explained:
And I was really putting forth ideas [in a letter] to Mr.
Kramer so that he could—so that I could sort of help him
(continued...)
No. 00-3791 33
5
(...continued)
formulate issues for the appeal, basically. At one point in the
letter, I think I said something to him like, ‘There was
something wrong with the representation of Mr. Frank when
he represented Mr. Love earlier and then represented me, but
I can’t pinpoint it. I just have a gut feeling that there
is something wrong there,’ and I stated that to him in my
letter. . . . I didn’t know what was wrong. I just had a feeling
that something was wrong. . . . .”)
Transcript of Hearing on Petition for Writ of Habeas Corpus
(“THC”) 28; see also id. at 41, 53. Kramer himself concluded that
the mere fact of Frank’s successive representation of Love and
Holleman did not supply a basis for a conflict of interest claim, see
PR 269, and Holleman relied on Kramer’s assessment, THC 30.
Years later, when Holleman met with his post-conviction counsel,
Jeffery Evans, to discuss potential grounds for post-conviction
relief, Holleman again mentioned the issue, but only in passing.
Holleman testified:
Mr. Evans was in the doorway leaving. We were in a little
attorney booth. And I made a comment to him sort of off-
handedly that, you know, “You may want to look into this.
This lawyer that represented me also represented my co-
defendant.”
THC 34. Evans’ recollection of the conversation was similar:
I believe I’d even gotten up from my chair and was about to
leave and trying to get things wrapped up and I was probably
tired at that point. Robert looked at me and said something
to the effect of remember at the beginning of this you told me
to tell you everything? I said yeah, Robert, tell me everything.
At that point he informed me that his attorney had previously
represented a co-defendant in this case. And he was very—in
telling me that, he was very sheepish about the whole thing.
I think he was trying to show me that he was complying with
my demand to tell me everything. And that’s how it first came
to my attention.
Evans Dep. 11.
34 No. 00-3791
3.
But even if we assume that Holleman did have an
obligation to look into the conflict before he filed his first
habeas petition in 1981, he can be faulted for the failure
to present the conflict of interest claim in that petition only
if the evidence necessary to support the claim was rea-
sonably discoverable at that time. See McCleskey, 499 U.S.
at 497-98, 111 S. Ct. at 1472. Based on the fact that Frank
ultimately confessed the conflict when questioned in 1991,
the district court and my colleagues discern no reason why
he would not have acknowledged the conflict prior to 1981.
Ante at 16-17 & n.3; 101 F. Supp. 2d at 705-06. In their
view, Holleman is to blame simply for failing to ask Frank
about the conflict sooner than he did. This notion strikes
me as wrong for a number of reasons.
First, Frank had no right to wait for the question. He had
an unequivocal duty to speak up when the conflict of in-
terest materialized during Holleman’s trial. Yet rather
than disclosing the conflict sua sponte, he chose to remain
silent and let Holleman’s interests suffer. Having al-
ready failed to disclose the conflict when ethics required
it of him, it strikes me as implausible to suppose that he
would have suddenly become candid if only his client
had thought to ask him whether he had experienced a
conflict.6
Second, in view of Frank’s silence in the first instance,
belated disclosure would have come at a price. After all,
6
In fact, by the time Holleman was preparing his direct appeal,
Frank had already terminated communications with Holleman.
After Holleman had sent Frank a second letter inquiring about
potential issues to raise on appeal, Frank told Holleman that
he should direct all future inquiries to Dennis Kramer, his ap-
pellate counsel, rather than to Frank.
No. 00-3791 35
Frank had not only failed to disclose the conflict but had
chosen to give Holleman’s interests a back seat to Love’s.
These were grave ethical violations which, if disclosed,
would have placed Frank’s law license in jeopardy. We
have no reason to think that Frank would have fallen on
his sword in 1980 or 1981 to help Holleman win relief in
habeas corpus.
Third, Frank’s failure to disclose the conflict that bur-
dened him at Holleman’s trial was by no means an isolated
breach of ethics on his part. In 1985, a 23-count indict-
ment charged Frank with scheming to obtain favorable
outcomes for clients who were charged with driving under
the influence of alcohol by bribing judges, court person-
nel, and other public officials to destroy records, to divert
notices that the Indiana Bureau of Motor vehicles should
have received, and to commit a variety of other dishonest
acts. See Frank v. United States, 914 F.2d 828 (7th Cir.
1990). The final count of the indictment also charged
Frank with obstructing justice based on his attempt to
interfere with a grand jury investigation. Apparently
Frank had tried to persuade one of his former DUI clients
to give false information to the grand jury that was investi-
gating Frank. See id. at 834 & n.11. Frank ultimately
pleaded guilty to the obstruction charge along with one
count of mail fraud, and he resigned from the practice of
law. These charges are relevant in two respects. First, the
indictment indicated that Frank had been engaged in the
charged scheme since at least January of 1980. Id. at 830
n.5. Generally speaking, criminals do not willingly bring
themselves to the attention of the authorities. For that
reason, it strikes me as unlikely that Frank would have
divulged his ethical breach in 1980 or 1981, as Holleman
was preparing his first habeas petition, since to do so might
well have triggered an inquiry by the Indiana bar. Second,
Frank’s admitted effort to obstruct justice suggests that
his first inclination, when confronted with an investiga-
36 No. 00-3791
tion into his own conduct, was not to be forthcoming but
rather to lie about it and to solicit others to do so.
Years later, Frank finally did acknowledge his conflict
of interest. By that time, he was a convicted felon whose
legal career was at an end; he had absolutely nothing to
lose. But even then, Frank’s admission was a reluctant
one. When Holleman’s attorney first interviewed him in
1988, all that Frank could focus on was his successful
representation of Love. See Evans Dep. 20-27. Not until a
second meeting in 1991 did Frank finally admit that his
divided loyalties had kept him from cross-examining
Schaar. Id. at 42-48. Frank’s hesitation to acknowledge
the conflict even at that late date demonstrates in yet
one more way why the evidence necessary to establish Hol-
leman’s claim was not reasonably available to him at
the time of his first habeas petition.
4.
This record lends absolutely no support to the conclu-
sion that Holleman abused the writ of habeas corpus. Only
through the extraordinary efforts of Holleman’s post-
conviction counsel, years after Holleman filed his first
habeas petition, did Frank’s conflict of interest at last
come to light. To say that Holleman ought to have investi-
gated the claim sooner is to say that the mere fact of
Frank’s serial representation of Love and Holleman was
enough to alert Holleman to the potential conflict of
interest, but not Judge Clement. To say that Frank would
have disclosed the conflict prior to 1981, if only he had
been asked, is to ignore (along with Frank’s history of
ethical breaches) the fact that it was Frank’s obligation
to volunteer that he was conflicted, not the obligation of
anyone else to ask him about it. Today’s holding is devoid
of common sense and the result is contrary to justice.
I respectfully dissent.
No. 00-3791 37
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-19-02