concurring in the judgment.
We are faced in this appeal with a claim by Petitioner Dick that his state-court conviction was fundamentally unfair because, during the pendency of his criminal proceedings, the prosecutor undertook to represent the victim in a civil suit against Dick.1 Such a practice is not merely “unseemly” as the majority understates, it is an unforgivable abuse of the public trust in which the public’s overriding interest in the fair operation of its criminal justice system, an interest prosecutors are sworn to uphold, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), may be sacrificed in favor of the financial interest of a cynical prosecutor. As the Supreme Court has said in an analogous case involving the appointment by a federal court of an interested party’s attorney to prosecute a contempt citation for the violation of an injunction:
In short, as will generally be the case, the appointment of counsel for an interested party to bring the contempt prosecution in this case at a minimum created opportunities for conflicts to arise, and created at least the appearance of impropriety.
In a case where a prosecutor represents an interested party, ... the ethics of the legal profession require that an interest other than the Government’s be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 806 & 807, 107 S.Ct. 2124, 2137, 95 L.Ed.2d 740 (1987) (emphasis in original; footnotes omitted). In his separate opinion, Justice Powell agreed:
A prosecutor occupies a unique role in our criminal justice system and it is essential that he carry out his duties fairly and impartially. Where a private prosecutor appointed by a District Court also represents an interested party, the possibility that his prosecutorial judgment will be compromised is significant.
Id. at 826, 107 S.Ct. at 2147 (Powell, J., concurring and dissenting). A criminal justice system that operated under such pretense would engender justifiable public outrage, and would bring our already maligned legal profession into further disrepute. I have no doubt, therefore, that the state trial court would have disqualified the prosecutor had it been informed of his transgression, and that the appropriate state disciplinary authorities would roundly condemn the prosecutor’s blatant ethical violation.
In reviewing a petition for writ of habeas corpus, however, we do not sit to enforce a code of ethics for prosecutors. Rather, we review state-court convictions only for constitutional error. Because I am constrained to agree with the majority that the appearance of impropriety infecting this state-court proceeding did not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution, I reluctantly concur in the judgment.2
I write separately, however, to express my disagreement with the majority’s apparent belief that a prosecutor’s financial interest in a criminal proceeding will never implicate the constitutional guarantee of due process. As the Supreme Court has said:
“A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecuto-rial decision and in some contexts raise serious constitutional questions.”
*199 Marshall v.
Jerrico, Inc., 446 U.S. 238, 249-50, 100 S.Ct. 1610, 1617, 64 L.Ed.2d 182 (1980); see Young, 481 U.S. at 807-08 & n. 19, 107 S.Ct. at 2137-38 & n. 19. In the same vein, Judge Friendly’s opinion in Wright v. United States, 732 F.2d 1048 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985), which the majority cites for other purposes but which also involved a claim of prosecutorial abuse analogous to that presented here, acknowledged that a prosecutor’s financial interest might raise a constitutional question:
In short, this case, with the facts taken at their worst against the Government, does not present the spectacle of a prosecutor’s using the “awful instruments of the criminal law” for purpose of private gain and, although we consider the choice of ... prosecutor to have been ill advised, we do not regard it as having deprived Wright of due process of law.
Id. at 1058 (quoting McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943)). Moreover, I cannot abide the majority’s suggestion that a prosecutor’s pecuniary interest in a case is simply a “practical constraint” on the exercise of his discretion. See Marshall, 446 U.S. at 250-52, 100 S.Ct. at 1617-18 (although prosecutors not constitutionally bound to avoid the appearance of bias, the Court found it necessary as a component of its due process analysis to inquire whether the administrative prosecutors in question would personally benefit from the assessment of penalties). That a prosecutor’s financial interest in a case can raise serious constitutional questions, therefore, is beyond question.3
Merely the appearance of impropriety, however, is insufficient. See Young, 481 U.S. at 807, 107 S.Ct. at 2137; Marshall, 446 U.S. at 248, 100 S.Ct. at 1616 (prosecutors not held to same standard of impartiality as judges). To show a constitutional violation, the criminal defendant must prove some specific instance of misbehavior, as the habeas petitioner did in Ganger v. Peyton, 379 F.2d 709 (4th Cir.1967). In Ganger the prosecutor used the criminal charge as leverage in an attempt to coerce a more favorable settlement for his private client in the pending divorce proceeding (this fact is unfortunately omitted from the majority’s discussion). When the prosecutor thus explicitly acts at his private client’s behest and in derogation of his public duty, the appearance of impropriety is replaced by an actual conflict likely motivated by a personal financial interest, and the conclusion that the prosecutor has “abdicated” his prosecutorial discretion to his client readily flows. Id. at 713-14. In such circumstances, the prosecutor’s behavior does not comport with any reasonable view of the prosecutorial function, and the aggrieved defendant has been denied his constitutional right to due process of law.4 Id.
In the final analysis, however, Petitioner Dick has failed to establish a comparable transgression by the prosecutor here. Thus, as in Wright, 732 F.2d at 1057-58, and Jones v. Richards, 776 F.2d 1244, 1246-47 (4th Cir.1985), the absence of specific evidence clearly showing the prosecutor’s abuse of the criminal justice system for his own financial gain distinguishes this case from Ganger. The appearance of impropriety we find in the prosecutor’s ill-advised decision to undertake the victim’s civil case during the criminal proceeding, therefore, does not rise to the level of a constitutional deprivation.
With these reservations, I concur in the court’s judgment.5
. I agree with the majority that the state court’s "fact-finding” does not deserve the presumption of correctness under 28 U.S.C. § 2254(d)(1) — (3).
. The Supreme Court’s decision in Young, although reversing a contempt conviction prosecuted by the attorney for an interested party, was based on the Court’s supervisory powers over the federal courts, and not on constitutional grounds. 481 U.S. at 808-09, 107 S.Ct. at 2138. Young is therefore not authority on which to base a constitutional rule mandating that prosecutors avoid even an appearance of bias. But cf. id. at 814-15, 107 S.Ct. at 2146-47 (Blackmun, J., concurring).
. The Supreme Court’s recent decision in Morrison v. Olson, 487 U.S.-, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), casts no doubt on this proposition.
. Whether such a constitutional violation would be subject to harmless error analysis is less clear. Compare Young, 481 U.S. at 809-14, 107 S.Ct. at 2138-41 (plurality opinion) with id. at 826-27, 107 S.Ct. at 2147-48 (Powell, J., dissenting in part). I note that such an analysis apparently informs the majority’s statement that the prosecutor’s motivation "may be immaterial, from a constitutional standpoint, as long as the criminal trial itself is not unfair.” The majority thus further confuses the issue here by converging the due process inquiry with the question whether such a violation would mandate the grant of habeas corpus relief. The latter question is not presented by this appeal.
. I also concur in the majority’s ineffective assistance of counsel analysis.